Is Kimbrew's expansive reading of § 201 unconstitutional?

QUESTIONS PRESENTED Michael Kimbrew, a field representative for then-Congresswoman Janice Hahn, accepted a $5,000 bribe from an undercover government agent and, in return, promised to secure a permit for a marijuana dispensary operating illegally in the City of Compton, California. For this misconduct, a jury convicted him of one count of bribery of a public official, in violation of 18 U.S.C. § 201(b)(2)(A). Critically, however, there was no marijuana permitting process in Compton. As such, no public official — Kimbrew or otherwise — had the power to issue a Compton-based dispensary a permit, and Kimbrew’s promise did not relate to a “question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit.” 18 U.S.C. § 201(a)(3). Kimbrew was thus convicted of federal bribery though his offense conduct lacked an “official act.” Jd. The Ninth Circuit Court of Appeals nonetheless upheld Kimbrew’s conviction. See United States v. Kimbrew, 944 F.3d. 810 (9th Cir. 2019). The court reasoned ii that it did not matter whether a “question, matter, cause, suit, proceeding or controversy’ actually existed, provided that Kimbrew claimed it did. In other words, as the court construed 18 U.S.C. § 201, the government is not required to prove beyond a reasonable doubt that the quo in an illicit guid pro quo between a briber-payor and a public official is real — a real “matter” of public concern, upon which some public official has the power to act. Kimbrew thus effectively converts § 201 into a commercial bribery statute, a tool to punish private acts of unjust enrichment perpetrated by federal employees. In so doing, Aimbrew violates the dictates of SunDiamond and creates a split with the D.C. Circuit. See United States v. Sun-Diamond Growers, 526 U.S. 398 (1999); Valdez v. United States, 475 F.3d 1319 (D.C. Cir. 2007) (en banc). The Court should therefore grant certiorari to correct the Ninth Circuit’s misguided path, by answering the following question: Is Kimbrews expansive reading of § 201 unconstitutional?