ATLANTA (CN) — An attorney for a former Georgia police officer found guilty of taking bribes to illegally access sensitive law enforcement data asked an 11th Circuit panel Thursday to throw out his conviction in light of a Supreme Court ruling that loosened corruption law.
Nathan VanBuren, a former sergeant in Cumming, Georgia, was convicted in October 2017 and sentenced to 18 months in prison after he pressured an unnamed person into giving him money with the understanding that VanBuren would use law enforcement databases to determine whether a license plate number provided by the person belonged to an undercover police officer.
VanBuren first came into contact with the individual identified as A. A. in court documents in June 2015, when he responded to a 911 call at A. A.’s home while they were being arrested for furnishing alcohol to a minor.
VanBuren continued to contact A. A. in the months following the arrest, asking for a loan and falsely claiming that his salary was being garnished and he had incurred substantial debt due to his son’s medical expenses.
A. A. reported VanBuren to the police and agreed to cooperate with authorities. In August 2015, A. A. gave VanBuren $5,000 and asked him to search a confidential state and federal databases to determine whether a license plate number belonged to an undercover police officer.
According to his indictment, VanBuren agreed and performed the search using the Georgia Crime Information Center and National Crime Information Center databases after receiving an additional $1,000 from A. A. and then provided the individual with the results of the search.
VanBuren resigned before he was terminated by the Cumming Police Department. He was later charged with wire and computer fraud.
Atlanta attorney Saraliene Smith Durrett, arguing Thursday morning on behalf of VanBuren, asked a three-judge 11th Circuit panel to reverse her client’s convictions due to the district court’s alleged failure to issue correct jury instructions. Durrett also argued that the evidence presented at trial was insufficient to convict him.
“There is no evidence VanBuren committed an official act in exchange for money when he ran the license plate… The term ‘official act’ is a term of art with a specific meaning under McDonnell,” Durrett said, referring to a 2016 U.S. Supreme Court ruling.
In McDonnell v. United States, the Supreme Court overturned the bribery convictions of former Virginia Governor Robert McDonnell and ruled that an “official act” is a decision or action on a “question, matter, cause, suit, proceeding or controversy.” For an action to qualify as an “official act,” the public official has to make a decision or agree to take an action on some matter which involves the exercise of governmental power.
“When it came time to instruct the jury, the trial court decided the pattern instructions under McDonnell would confuse the jury,” Durrett said.
“The question which should have been presented to the jury is: ‘Was it an official act?'” she continued. “Just asking the question, ‘Whose car is this?’ by running a tag isn’t an official act… If he had influenced a matter under investigation, that would’ve been an official act.”
Assistant U.S. Attorney Jeffrey Brown told the panel that even if the jury instruction was incorrect, the error wouldn’t warrant reversal of VanBuren’s convictions.
“Even if the instruction was not the correct statement of law in light of the actual question or matter, it was harmless error,” Brown said.
But U.S. Circuit Judge Robin Rosenbaum pushed back against Brown’s argument.
“McDonnell focuses on the significance of the pending matter. The jury instructions given did not convey that… I think it made a big difference in whether the jury could determine that VanBuren committed a crime,” Rosenbaum said.
Brown assured the panel that the jury instructions were proper, adding that the “instruction crafted by the district court covered McDonnell and was sufficient.”
Rosenbaum was joined on the panel by U.S. Circuit Judges Beverly Martin and Danny Boggs, sitting by designation from the Sixth Circuit. The judges did not indicate when they will reach a decision in the case.