The White Collar Appeal: Seventh Circuit Considers the Continuum of “Official Acts” in Bribery Cases

• What constitutes an “official act” for purposes of federal bribery prosecutions has continued to vex courts even after the Supreme Court’s landmark decision in McDonnell v. United States.
• The Seventh Circuit recently confronted this issue in United States v. Weiss, appearing to adopt a new framework for analyzing when a district court may instruct a jury that conduct qualifies as an official act.
• Weiss, however, does little to resolve the many ambiguities in the official-act jurisprudence, preserving opportunities for defendants and giving prosecutors more reason to explore alternative theories in bribery prosecutions.

Background

James Weiss owned a company that manufactured machines used in sweepstakes games.  In order to resolve an ambiguity about the legality of sweepstakes in Illinois, he retained a state legislator, Luis Arroyo, as a consultant to advocate for a state bill to amend Illinois state gaming law.  In exchange for a monthly fee paid by Weiss’s company, Arroyo became a vocal advocate for the sweepstakes legislation, speaking at Gaming Committee hearings, meeting with leadership of the Illinois General Assembly, and approaching other legislators.  Arroyo also arranged a meeting with the legislative sponsor of a broader gaming bill, Terrence Link, to persuade Link to endorse a “trailing bill” that would amend a recently enacted gaming law.  At that meeting, Link asked Weiss and Arroyo what was "in it for me," and Arroyo responded that Link could be paid the "[s]ame way" Arroyo was being paid and that the money could be sent to another individual to hide the intended recipient.  Weiss and Arroyo later gave Link multiple checks made out to “Katherine Hunter” in exchange for Link’s support for the trailing bill. 

Link, however, had been cooperating with the FBI the whole time.  So instead of resolving ambiguity about the legality of the sweepstakes industry, Weiss ended up on trial for bribery and honest-services fraud.  At trial, the district court instructed the jury that “promoting the enactment of legislation related to the sweepstakes industry by the Illinois General Assembly is an official act” within the meaning of the federal bribery laws.  The jury convicted Weiss, and the district court later imposed a sentence of five-and-a-half years.

Holding

The Seventh Circuit reviewed Weiss’s challenge to the jury instruction for plain error on the basis that he had not objected to the instruction at trial.  The gravamen of Weiss’s argument was that the instruction improperly directed the verdict on the factual issue of whether the requested action—promoting the enactment of legislation—constituted an official act.  The question before the Seventh Circuit thus was whether a district court may instruct a jury that certain conduct conclusively satisfies the definition of “official act” under McDonnell v. United States, 579 U.S. 550 (2016).

The Seventh Circuit found no plain error in the instruction, concluding that McDonnell did not preclude courts from defining specific, indisputable conduct as "official acts."  McDonnell held that “an ‘official act’ is a decision or action on a ‘question, matter, cause, suit, proceeding or controversy’ [that] must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee.”  (One of the authors of this post was trial and appellate counsel to Maureen McDonnell, one of the defendants in McDonnell.)

The Weiss Court reasoned that, by providing examples of specific acts that could constitute official acts, the Supreme Court implicitly recognized that what constitutes an official act is not always a question for the factfinder.  Weiss also cited decisions from the Second and Eleventh Circuits opining that certain conduct “undeniably” constituted official action and that “no one disputes (or could) that” the conduct at issue was an official act.

The Seventh Circuit acknowledged, however, that United States v. Lindberg, 39 F.4th 151 (4th Cir. 2022), vacated a conviction in similar circumstances because “it was the role of the jury to determine whether conduct constitutes an official act.”  The Weiss Court distinguished Lindberg on the basis that (1) the conduct involved in Lindberg—removal and replacement of a senior deputy commissioner—is not “at the epicenter of an official’s duties,” whereas promoting the passage of legislation is; (2) such promotion is “more capacious” than the comparatively cut-and-dried question of whether someone was fired; and, most importantly, (3) the defendant in Lindberg was, unlike Weiss, forbidden from arguing that his conduct was not official action.

Ultimately, the Seventh Circuit held that regardless of the soundness of the instruction, Weiss could not show that it changed the outcome of the trial, as the plain-error standard requires.  Weiss argued to the jury that no official act occurred, and the district court specifically instructed the jury that a “public official does not” perform an official act “if he does no more than set up a meeting, host an event, or call or talk to another public official.” As a result, the court affirmed the conviction.

Key Takeaways

The closer the conduct is to the “epicenter” of an official’s duties, the more leeway courts have in their instructions.  Reconciling Weiss and Lindberg suggests that courts should consider where along the official-acts continuum the alleged conduct falls.  On one end of the continuum, a legislator's vote indisputably constitutes an official act.  It is difficult to imagine a Court of Appeals finding error with a jury instruction to that effect.  On the other end, however, appointing people to review an application is not clearly an official act, rendering the instruction in Lindberg improper judicial factfinding.  Defendants should do whatever they can to distinguish their fact from the core official-act conduct discussed in McDonnell.

Comparing “official acts” and “official duties.”  The Seventh Circuit's decision in Weiss presents a contrast to the D.C. Circuit's recent decision in United States v. Paitsel, No. 23-3212, 2025 WL 2180059 (D.C. Cir. Aug. 1, 2025).  Paitsel created a new, expansive standard for bribery prosecutions using the official-duty prong of 18 U.S.C. § 201.  As discussed in a previous post, Paitsel held that conduct an official could not have performed but for her official position is sufficient to support a bribery conviction.  Weiss and Paitsel highlight a potential divergence as courts grapple with the nuances of the "official act" element after McDonnell.  Paitsel leans toward an expanded "but-for" standard, while Weiss reemphasizes the importance of the jury’s role in determining what is or is not an official act, particularly when the conduct is not an obvious or discrete action like a legislative vote.