In United States v. Burnette, No. 21-13990 (Apr. 11, 2023) (Jordan, Rosenbaum, Newsom), the Court affirmed Mr. Burnette’s bribery-based convictions.

Mr. Burnette, a real estate developer in Tallahassee, was accused of soliciting bribes from two undercover agents posing as property developers in order to sway a Tallahassee city commissioner’s vote.  He was found guilty of Hobbs Act extortion, in violation of 18 U.S.C. § 1951(a); honest-services mail fraud, in violation of 18 U.S.C. §§ 1341, 1346; using a facility of interstate commerce to facilitate unlawful activity, in violation of 18 U.S.C. § 1952(a)(3); and making a material false statement to the FBI, in violation of 18 U.S.C. § 1001(a)(2).

O appeal, Mr. Burnette’s main challenge  turned on the Supreme Court’s interpretation of the definition of “bribery”–as found in 18 U.S.C. § 201–in McDonnell v. United States, 579 U.S. 550 (2016).  In McDonnell, the Supreme Court narrowed the meaning of the term “official act,” and clarified that in order to implicate the bribery statute’s prohibition, a public official must either engage or agree to engage in (1) a sufficiently serious act–such as casting a vote (2) concerning a sufficiently serious and concrete matter.

His challenge was, however, denied on the reasoning that some errors were invited, and others unpreserved, and Mr. Burnette could not meet the showing required for plain error–that the error affected his substantial rights.

Mr. Burnette’s other challenges–sufficiency of the evidence and evidentiary challenges–were also denied.

The panel filed a separate concurrence to opine further on McDonnell and stress the importance of not “overread[ing]” the Supreme Court’s opinion there.  The Court stressed that as an “inferior court,” it and its sister courts “would do well to tread lightly and await further direction from [their] bosses before concluding that McDonnell revolutionized bribery laws as we have long known it.”