934 F.3d 110

Sullivan, Circuit Judge, concurring:
I fully agree with the majority that the official acts requirement set forth in McDonnell v. United States , --- U.S. ----, 136 S. Ct. 2355, 195 L.Ed.2d 639 (2016), does not apply to 18 U.S.C. § 666 or the Foreign Corrupt Practices Act, 15 U.S.C. §§ 78dd-2, 78dd-3. I likewise agree that the district court erred by giving (what turned out to be) an unnecessary McDonnell instruction. However, that error is clearly harmless, for the reasons set forth in the majority opinion.
Having reached this conclusion, I see no need to engage in an alternative holding that essentially hypothesizes what we would have concluded in the event that McDonnell did apply to § 666. To my mind, this analysis obscures what is otherwise a clear holding, and since "[i]t has long been [the] considered practice [of Article III courts] not to decide abstract, hypothetical or contingent questions," Ala. State Fed'n of Labor, Local Union No. 103, United Bhd. of Carpenters & Joiners of Am. v. McAdory , 325 U.S. 450, 461, 65 S.Ct. 1384, 89 L.Ed. 1725 (1945), I see no reason to engage in an unnecessary and purely academic McDonnell analysis.
Accordingly, I decline to join in the majority's alternative McDonnell holding. In all other respects, I wholly concur in the majority's excellent opinion.

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