OCTOBER TERM, 1991
Syllabus
EVANS
v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
ELEVENTH CIRCUIT
No. 90-6105. Argued December 9, 1991-Decided May 26,1992
As part of an investigation of allegations of public corruption
in Georgia, a Federal Bureau of Investigation agent posing as a
real estate developer initiated a number of conversations with
petitioner Evans, an elected member of the DeKalb County Board of
Commissioners. The agent sought Evans' assistance in an effort to
rezone a tract of land and gave him,
inter alia, $7,000 in
cash, which Evans failed to report on his state campaign-financing
disclosure form or his federal income tax return. Evans was
convicted in the District Court of, among other things, extortion
under the Hobbs Act, which is "the obtaining of property from
another, ... induced by wrongful use of actual or threatened force,
violence, or fear, or under color of official right," 18 U. S. C. §
1951(b)(2). In affirming the conviction, the Court of Appeals
acknowledged that the trial court's jury instruction did not
require a finding that Evans had demanded or requested the money,
or that he had conditioned the performance of any official act upon
its receipt. However, it held that "passive acceptance of the
benefit" was sufficient for a Hobbs Act violation if the public
official knew that he was being offered the payment in exchange for
a specific requested exercise of his official power.
Held: An affirmative act of inducement by a public
official, such as a demand, is not an element of the offense of
extortion "under color of official right" prohibited by the Hobbs
Act. Pp. 259-271.
(a) Congress is presumed to have adopted the common-law
definition of extortion-which does not require that a public
official make a demand or request-unless it has instructed
otherwise. See
Morissette v.
United States, 342 U. S. 246, 263. While
the Act expanded the common-law definition to encompass conduct by
a private individual as well as a public official, the portion of
the Act referring to official misconduct continues to mirror the
common-law definition. There is nothing in the sparse legislative
history or the statutory text that could fairly be described as a
"contrary direction,"
ibid., from Congress to narrow the
offense's scope. The inclusion of the word "induced" in the
definition does not require that the wrongful use of official power
begin with a public official. That word is part of the definition
of extortion by a private individual but not by a public official,
and even if it did apply to
256
a public official, it does not necessarily indicate that a
transaction must be initiated by the bribe's recipient. Pp.
259-266.
(b) Evans' criticisms of the jury instruction-that it did not
properly describe the
quid pro quo requirement for
conviction if the jury found that the payment was a campaign
contribution, and that it did not require the jury to find
duress-are rejected. The instruction satisfies the
quid pro
quo requirement of
McCormick v.
United States,
500 U. S. 257,
because the offense is completed when the public official receives
payment in return for his agreement to perform specific official
acts; fulfillment of the
quid pro quo is not an element of
the offense. Nor is an affirmative step on the official's part an
element of the offense on which an instruction need be given. Pp.
267-268.
(c) The conclusion herein is buttressed by the facts that many
courts have interpreted the statute in the same way, and that
Congress, although aware of this prevailing view, has remained
silent. pp.268-269.
910 F.2d
790, affirmed.
STEVENS, J., delivered the oplmon of the Court, in which WHITE,
BLACKMUN, and SOUTER, JJ., joined, in Parts I and II of which
O'CONNOR, J., joined, and in Part III of which KENNEDY, J., joined.
O'CONNOR, J.,
post, p. 272, and KENNEDY, J.,
post, p.
272, filed opinions concurring in part and concurring in the
judgment. THOMAS, J., filed a dissenting opinion, in which
REHNQUIST, C. J., and SCALIA, J., joined,
post, p. 278.
C.
Michael Abbott, by appointment of the Court, 501 U. S.
1229, argued the cause and filed briefs for petitioner.
Deputy Solicitor General Bryson argued the cause for the United
States. With him on the brief were Solicitor General Starr,
Assistant Attorney General Mueller, Christopher
J. Wright,
and Richard A. Friedman.
JUSTICE STEVENS delivered the opinion of the Court.
We granted certiorari, 500 U. S. 951 (1991), to resolve a
conflict in the Circuits over the question whether an affirmative
act of inducement by a public official, such as a demand, is an
element of the offense of extortion "under color of official right"
prohibited by the Hobbs Act, 18 U. S. C. § 1951. We agree with the
Court of Appeals for the Eleventh Circuit that it is not, and
therefore affirm the judgment of the court below.
257
I
Petitioner was an elected member of the Board of Commissioners
of DeKalb County, Georgia. During the period between March 1985 and
October 1986, as part of an effort by the Federal Bureau of
Investigation (FBI) to investigate allegations of public corruption
in the Atlanta area, particularly in the area of rezonings of
property, an FBI agent posing as a real estate developer talked on
the telephone and met with petitioner on a number of occasions.
Virtually all, if not all, of those conversations were initiated by
the agent and most were recorded on tape or video. In those
conversations, the agent sought petitioner's assistance in an
effort to rezone a 25-acre tract of land for high-density
residential use. On July 25, 1986, the agent handed petitioner cash
totaling $7,000 and a check, payable to petitioner's campaign, for
$1,000. Petitioner reported the check, but not the cash, on his
state campaign-financing disclosure form; he also did not report
the $7,000 on his 1986 federal income tax return. Viewing the
evidence in the light most favorable to the Government, as we must
in light of the verdict, see
Glasser v.
United
States, 315 U. S.
60, 80 (1942), we assume that the jury found that petitioner
accepted the cash knowing that it was intended to ensure that he
would vote in favor of the rezoning application and that he would
try to persuade his fellow commissioners to do likewise. Thus,
although petitioner did not initiate the transaction, his
acceptance of the bribe constituted an implicit promise to use his
official position to serve the interests of the bribegiver.
In a two-count indictment, petitioner was charged with extortion
in violation of 18 U. S. C. § 1951 and with failure to report
income in violation of 26 U. S. C. § 7206(1). He was convicted by a
jury on both counts. With respect to the extortion count, the trial
judge gave the following instruction:
"The defendant contends that the $8,000 he received from agent
Cormany was a campaign contribution. The
258
solicitation of campaign contributions from any person is a
necessary and permissible form of political activity on the part of
persons who seek political office and persons who have been elected
to political office. Thus, the acceptance by an elected official of
a campaign contribution does not, in itself, constitute a violation
of the Hobbs Act even though the donor has business pending before
the official.
"However, if a public official demands or accepts money in
exchange for [a] specific requested exercise of his or her official
power, such a demand or acceptance does constitute a violation of
the Hobbs Act regardless of whether the payment is made in the form
of a campaign contribution." App. 16-17.
In affirming petitioner's conviction, the Court of Appeals noted
that the instruction did not require the jury to find that
petitioner had demanded or requested the money, or that he had
conditioned the performance of any official act upon its receipt.
910 F.2d
790, 796 (CAll 1990). The Court of Appeals held, however, that
"passive acceptance of a benefit by a public official
is
sufficient to form the basis of a Hobbs Act violation if the
official knows that he is being offered the payment in exchange for
a specific requested exercise of his official power. The official
need not take any specific action to induce the offering of the
benefit."
Ibid. (emphasis in original).l
This statement of the law by the Court of Appeals for the
Eleventh Circuit is consistent with holdings in eight other
1 The Court of Appeals explained its conclusion as follows:
"[T]he requirement of inducement is
automatically
satisfied by the power connected with the public office. Therefore,
once the defendant has shown that a public official has accepted
money in return for a requested exercise of official power, no
additional inducement need be shown. 'The coercive nature of the
official office provides all the inducement necessary.''' 910 F.
2d, at 796-797 (footnote omitted).
259
Circuits.2 Two Circuits, however, have held that an affirmative
act of inducement by the public official is required to support a
conviction of extortion under color of official right.
United
States v.
O'Grady, 742 F.2d
682, 687 (CA2 1984) (en banc) ("Although receipt of benefits by
a public official is a necessary element of the crime, there must
also be proof that the public official did something, under color
of his public office, to cause the giving of benefits");
United
States v.
Aguon, 851 F.2d
1158, 1166 (CA9 1988) (en banc) ("We find ourselves in accord
with the Second Circuit's conclusion that inducement is an element
required for conviction under the Hobbs Act"). Because the majority
view is consistent with the common-law definition of extortion,
which we believe Congress intended to adopt, we endorse that
position.
II
It is a familiar "maxim that a statutory term is generally
presumed to have its common-law meaning."
Taylor v.
United States, 495 U. S. 575, 592
(1990). As we have explained: "[W]here Congress borrows terms of
art in which are accumulated the legal tradition and meaning of
centuries of practice, it presumably knows and adopts the cluster
of ideas that were attached to each borrowed word in the body of
learning from which it was taken and the meaning its use will
convey to the judicial mind unless otherwise instructed. In such
case, absence of contrary direction may be taken as satisfaction
with widely accepted definitions, not as a depar-
2 See
United States v.
Garner, 837 F.2d
1404, 1423
(CA7 1987), eert. denied, 486 U. S. 1035
(1988);
United States v.
Spitler, 800 F.2d
1267,
1274-1275 (CA4 1986);
United States v.
Jannotti, 673 F.2d
578, 594-596
(CA3) (en bane), eert. denied, 457 U. S.
1106 (1982);
United States v.
French, 628 F.2d
1069, 1074
(CA8), eert. denied, 449 U. S. 956 (1980);
United States v.
Williams, 621
F.2d 123, 123-124
(CA5 1980), eert. denied, 450 U. S.
919 (1981);
United States v.
Butler, 618 F.2d
411, 417-420
(CA6), eert. denied, 447 U. S. 927 (1980);
United States v.
Hall, 536 F.2d
313, 320-321 (CAW), eert. denied, 429 U. S. 919 (1976);
United States v.
Hathaway, 534
F.2d 386, 393-394
(CA1), eert. denied, 429 U. S. 819
(1976).
260
ture from them."
Morissette v.
United States,
342 U. S. 246,
263 (1952).3
At common law, extortion was an offense committed by a public
official who took "by colour of his office" 4 money that was not
due to him for the performance of his official duties.5 A demand,
or request, by the public official was not an element of the
offense.6 Extortion by the public official was the rough equivalent
of what we would now describe as "taking a bribe." It is clear that
petitioner committed that offense.7 The question is whether the
federal statute, insofar
3 Or, as Justice Frankfurter advised, "if a word is obviously
transplanted from another legal source, whether the common law or
other legislation, it brings the old soil with it." Frankfurter,
Some Reflections on the Reading of Statutes, 47 Colum. L. Rev.
527,537 (1947).
4 Blackstone described extortion as "an abuse of public justice,
which consists in an officer's unlawfully taking,
by colour
of his office, from any man, any money or thing of value, that is
not due to him, or more than is due, or before it is due." 4 W.
Blackstone, Commentaries *141 (emphasis added). He used the phrase
"by colour of his office," rather than the phrase "under color of
official right," which appears in the Hobbs Act. Petitioner does
not argue that there is any difference in the phrases. Hawkins'
definition of extortion is probably the source for the official
right language used in the Hobbs Act. See Lindgren, The Elusive
Distinction Between Bribery and Extortion: From the Common Law to
the Hobbs Act, 35 UCLA L. Rev. 815, 864 (1988) (hereinafter
Lindgren). Hawkins defined extortion as follows:
"[I]t is said, That extortion in a large sense signifies any
oppression under colour of right; but that in a strict sense, it
signifies the taking of money by any officer, by colour of his
office, either where none at all is due, or not so much is due, or
where it is not yet due." 1 W. Hawkins, Pleas of the Crown 316 (6th
ed. 1787).
5 See Lindgren 882-889. The dissent says that we assume that
"common-law extortion encompassed
any taking by a public
official of something of value that he was not 'due.'''
Post, at 279. That statement, of course, is incorrect
because, as stated in the text above, the payment must be "for the
performance of his official duties."
6 Lindgren 884-886.
7 Petitioner argued to the jury, at least with respect to the
extortion count, that he had been entrapped, see App. 20; however,
in light of the jury's verdict on that issue, we must assume that
he was predisposed to commit the crime.
261
as it applies to official extortion, has narrowed the commonlaw
definition.
Congress has unquestionably
expanded the common-law
definition of extortion to include acts by private individuals
pursuant to which property is obtained by means of force, fear, or
threats. It did so by implication in the Travel Act, 18 U. s. C. §
1952, see
United States v.
Nardello, 393 U. S. 286, 289-296
(1969), and expressly in the Hobbs Act. The portion of the Hobbs
Act that is relevant to our decision today provides:
"(a) Whoever in any way or degree obstructs, delays, or affects
commerce or the movement of any article or commodity in commerce,
by robbery or extortion or attempts or conspires so to do, or
commits or threatens physical violence to any person or property in
furtherance of a plan or purpose to do anything in violation of
this section shall be fined not more than $10,000 or imprisoned not
more than twenty years, or both.
"(b) As used in this section-
"(2) The term 'extortion' means the obtaining of property from
another, with his consent, induced by wrongful use of actual or
threatened force, violence, or fear, or under color of official
right." 18 U. s. C. § 1951.
The present form of the statute is a codification of a 1946
enactment, the Hobbs Act,S which amended the federal
AntiRacketeering Act.9 In crafting the 1934 Act, Congress was
8The 1946 enactment provides:
"The term 'extortion' means the obtaining of property from
another, with his consent, induced by wrongful use of actual or
threatened force, violence, or fear, or under color of official
right.' " Act of July 3, 1946, ch. 537, § l(c), 60 Stat. 420.
9 Section 2(b) of the 1934 Act read as follows:
"SEC. 2. Any person who, in connection with or in relation to
any act in any way or in any degree affecting trade or commerce or
any article or commodity moving or about to move in trade or
commerce-
262
careful not to interfere with legitimate activities between
employers and employees. See H. R. Rep. No. 1833, 73d Cong., 2d
Sess., 2 (1934). The 1946 amendment was intended to encompass the
conduct held to be beyond the reach of the 1934 Act by our decision
in
United States v.
Teamsters, 315 U. S. 521 (1942).10
The amendment did not make any significant change in the section
referring to obtaining property "under color of official right"
that had been prohibited by the 1934 Act. Rather, Congress intended
to broaden the scope of the Anti-Racketeering Act and was concerned
pri-
"(b) Obtains the property of another, with his consent, induced
by wrongful use of force or fear, or under color of official
right." Act of June 18, 1934, ch. 569, § 2, 48 Stat. 979-980.
One of the models for the statute was the New York statute:
"Extortion is the obtaining of property from another, or the
obtaining the
[sic] property of a corporation from an
officer, agent or employee thereof, with his consent, induced by a
wrongful use of force or fear, or under color of official right."
Penal Law of 1909, §850, as amended, 1917 N. Y. Laws, ch. 518,
codified in N. Y. Penal Law § 850 (McKinney Supp. 1965).
The other model was the Field Code, a 19th-century model
code:
"Extortion is the obtaining of property from another, with his
consent, induced by a wrongful use of force or fear, or under color
of official right." Commissioners of the Code, Proposed Penal Code
of the State of New York § 613 (1865) (Field Code).
Lindgren points out that according to the Field Code, coercive
extortion and extortion by official right extortion are separate
offenses, and the New York courts recognized this difference when,
in 1891, they said the Field Code treats "extortion by force and
fear as one thing, and extortion by official action as another."
People v.
Barondess, 61 Hun. 571, 576, 16 N. Y. S.
436, 438 (App. Div. 1891). The judgment in this case was later
reversed without opinion. See 133 N. Y. 649, 31 N. E. 240 (1892).
Lindgren identifies early English statutes and cases to support his
contention that official extortion did not require a coercive
taking, nor did it under the early American statutes, including the
later New York statute. See Lindgren 869,908.
10 In
United States v.
Teamsters, the Court
construed the exemption for '''the payment of wages by a bona-fide
employer to a bona-fide employee'" that was contained in the 1934
Act but is no longer a part of the statute. 315 U. S., at 527.
263
marily with distinguishing between "legitimate" labor activity
and labor "racketeering," so as to prohibit the latter while
permitting the former. See 91 Congo Rec. 11899-11922 (1945).
Many of those who supported the amendment argued that its
purpose was to end the robbery and extortion that some union
members had engaged in, to the detriment of all labor and the
American citizenry. They urged that the amendment was not, as their
opponents charged, an antilabor measure, but rather, it was a
necessary measure in the wake of this Court's decision in
United
States v.
Teamsters.ll In their view, the Supreme
Court had mistakenly exempted labor from laws prohibiting robbery
and extortion, whereas Congress had intended to extend such laws to
all American citizens. See,
e. g., 91 Congo Rec.
11910 (1945) (remarks of Rep. Springer) ("To my mind this is a bill
that protects the honest laboring people in our country. There is
nothing contained in this bill that relates to labor. This measure,
if passed, will relate to every American citizen");
id., at
11912 (remarks of Rep. Jennings) ("The bill is one to protect the
right of citizens of this country to market their products without
any interference from lawless bandits").
Although the present statutory text is much broader 12 than the
common-law definition of extortion because it encompasses conduct
by a private individual as well as conduct
11 In fact, the House Report sets out the text of
United
States v.
Teamsters in full, to make clear that the
amendment to the Anti-Racketeering Act was in direct response to
the Supreme Court decision. See H. R. Rep. No. 238, 79th Cong., 1st
Sess., 1-10 (1945).
12 This Court recognized the broad scope of the Hobbs Act in
Stirone v.
United States, 361 U. S. 212, 215
(1960):
"That Act speaks in broad language, manifesting a purpose to use
all the constitutional power Congress has to punish interference
with interstate commerce by extortion, robbery or physical
violence. The Act outlaws such interference 'in any way or degree.'
"
264
by a public official,13 the portion of the statute that refers
to official misconduct continues to mirror the common-law
definition. There is nothing in either the statutory text or the
legislative history that could fairly be described as a "contrary
direction,"
Morissette v.
United States, 342 U. S.,
at 263, from Congress to narrow the scope of the offense.
The legislative history is sparse and unilluminating with
respect to the offense of extortion. There is a reference to the
fact that the terms "robbery and extortion" had been construed many
times by the courts and to the fact that the definitions of those
terms were "based on the New York law." 89 Congo Rec. 3227 (1943)
(statement of Rep. Hobbs); see 91 Congo Rec. 11906 (1945)
(statement of Rep. Robsion). In view of the fact that the New York
statute applied to a public officer "who asks, or receives, or
agrees to receive" unauthorized compensation, N. Y. Penal Code §
557 (1881), the reference to New York law is consistent with an
intent to apply the common-law definition. The language of the New
York statute quoted above makes clear that extortion could be
committed by one who merely
received an unauthor-
13 Several States had already defined the offense of extortion
broadly enough to include the conduct of the private individual as
well as the conduct of the public official. See,
e. g., United
States v.
Nardello, 393 U. S. 286, 289 (1969) ("In many
States ... the crime of extortion has been statutorily expanded to
include acts by private individuals under which property is
obtained by means of force, fear, or threats");
Bush v.
State, 19 Ariz. 195, 198, 168 P. 508, 509-510 (1917)
(recognizing that the state Penal Code "has enlarged the scope of
this offense so as not to confine the commission of it to those
persons who act under color of official right");
People v.
Peck, 43 Cal. App. 638, 643, 185 P. 881, 882-883 (1919) (In
some States "the statutory definitions have extended the scope of
the offense beyond that of the common law so as to include the
unlawful taking of money or thing of value of another by any
person, whether a public officer or a private individual, and this
is so in California ... ").
At least one commentator has argued that, at common law,
extortion under color of official right could also be committed by
a private individual. See Lindgren 875.
265
ized payment.14 This was the statute that was in force in New
York when the Hobbs Act was enacted.
The two courts that have disagreed with the decision to apply
the common-law definition have interpreted the word "induced" as
requiring a wrongful use of official power that "begins with the
public official, not with the gratuitous actions of another."
United States v.
O'Grady, 742 F. 2d, at 691; see
United States v.
Aguon, 851 F. 2d, at 1166 ("
'inducement' can be in the overt form of a 'demand,' or in a more
subtle form such as 'custom' or 'expectation' "). If we had no
common-law history to guide our interpretation of the statutory
text, that reading would be plausible. For two reasons, however, we
are convinced that it is incorrect.
First, we think the word "induced" is a part of the definition
of the offense by the private individual, but not the offense by
the public official. In the case of the private individual, the
victim's consent must be "induced by wrongful use of actual or
threatened force, violence or fear." In the case of the public
official, however, there is no such requirement. The statute merely
requires of the public official that he obtain "property from
another, with his consent, ... under color of official right." The
use of the word "or" before "under color of official right"
supports this reading.15
14 Many of the treatise writers explained that, at common law,
extortion was defined as the corrupt taking or receipt of an
unlawful fee by a public officer under color of office. They did
not allude to any requirements of "inducement" or "demand" by a
public officer. See,
e. g., W. LaFave & A. Scott,
Handbook on Criminal Law § 95, p. 704 (1972); R. Perkins & R.
Boyce, Criminal Law 448 (1982); 4 C. Torcia, Wharton's Criminal Law
§ 695, p. 481, § 698, p. 484 (14th ed. 1981).
15 This meaning would, of course, have been completely clear if
Congress had inserted the word "either" before its description of
the private offense because the word "or" already precedes the
description of the public offense. The definition would then read:
"The term 'extortion' means the obtaining of property from another,
with his consent,
either induced by wrongful use of actual
or threatened force, violence, or fear,
or under color of
official right."
266
Second, even if the statute were parsed so that the word
"induced" applied to the public officeholder, we do not believe the
word "induced" necessarily indicates that the transaction must be
initiated by the recipient of the bribe. Many of the cases
applying the majority rule have concluded that the wrongful
acceptance of a bribe establishes all the inducement that the
statute requires.16 They conclude that the coercive element is
provided by the public office itself. And even the two courts that
have adopted an inducement requirement for extortion under color of
official right do not require proof that the inducement took the
form of a threat or demand. See
United States v.
O'Grady, 742 F. 2d, at 687;
United States v.
Aguon, 851 F. 2d, at
1166.17
16 See,
e. g., United States v.
Holzer, 816 F.2d
304, 311
(CA7), vacated on other grounds, 484 U. S. 807
(1987), aff'd in part on remand,
840 F.2d
1343 (CA7), cert. denied, 486 U. S. 1035 (1988);
United States v.
Paschall, 772
F.2d 68, 72-74
(CA4 1985);
United States v.
Williams, 621 F. 2d, at 124;
United States v.
Butler, 618 F. 2d, at 418.
17Moreover, we note that while the statute does not require that
affirmative inducement be proven as a distinct element of the Hobbs
Act, there is evidence in the record establishing that petitioner
received the money with the understanding that he would use his
office to aid the bribegiver. Petitioner and the agent had several
exchanges in which they tried to clarify their understanding with
each other. For example, petitioner said to the agent: "I
understand both of us are groping ... for what we need to say to
each other .... I'm gonna work. Let m[e] tell you I'm gonna work,
if you didn't give me but three [thousand dollars], on this, I've
promised to help you. I'm gonna work to do that. You understand
what I mean .... If you gave me six, I'll do exactly what I said I
was gonna do for you. If you gave me one, I'll do exactly what I
said I was gonna do for you. I wanna' make sure you're clear on
that part. So it doesn't really matter. If I promised to help,
that's what I'm gonna do." App.36-37.
Petitioner instructed the agent on the form of the payment
("What you do, is make me out one, ahh, for a thousand .... And,
and that means we gonna record it and report it and then the rest
would be cash"), and agreed with the agent that the payment was
being made, not because it was an election year, but because there
was a budget to support petitioner's ac-
267
Petitioner argues that the jury charge with respect to
extortion, see
supra, at 257-258, allowed the jury to
convict him on the basis of the "passive acceptance of a
contribution." Brief for Petitioner 24.18 He contends that the
instruction did not require the jury to find "an element of du-
tions, and that there would be a budget either way ("Either way,
yep. Oh, I understand that. I understand").
Id., at 38.
18 Petitioner also makes the point that "[t]he evidence at trial
against [petitioner] is more conducive to a charge of bribery than
one of extortion." Brief for Petitioner 40. Although the evidence
in this case may have supported a charge of bribery, it is not a
defense to a charge of extortion under color of official right that
the defendant could also have been convicted of bribery. Courts
addressing extortion by force or fear have occasionally said that
extortion and bribery are mutually exclusive, see,
e.
g., People v.
Feld, 262 App. Div. 909, 28 N.
Y. S. 2d 796, 797 (1941); while that may be correct when the victim
was intimidated into making a payment (extortion by force or fear),
and did not offer it voluntarily (bribery), that does not lead to
the conclusion that extortion under color of official right and
bribery are mutually exclusive under either common law or the Hobbs
Act. See,
e. g., Stern, Prosecutions of Local
Political Corruption Under the Hobbs Act: The Unnecessary
Distinction Between Bribery and Extortion,3 Seton Hall L. Rev. 1,
14 (1971) ("If the [Hobbs] Act is read in full, the distinction
between bribery and extortion becomes unnecessary where public
officials are involved").
Another commentator has argued that bribery and extortion were
overlapping crimes, see Lindgren 905, 908, and has located an early
New York case in which the defendant was convicted of both bribery
and extortion under color of official right, see
People v.
Hansen, 241 N. Y. 532, 150 N. E. 542 (1925), aff'g, 211 App.
Div. 861, 207 N. Y. S. 894 (1924). He also makes the point that the
cases usually cited for the proposition that extortion and bribery
are mutually exclusive crimes are cases involving extortion by fear
and bribery, see,
e. g., People v.
Feld, supra;
People v.
Dioguardi, 8 N. Y. 2d 260, 263, 271-273, 168
N. E. 2d 683, 685, 690-692 (1960), and we note that the latter case
was decided after the Hobbs Act, so it could not have been a case
on which Congress relied. We agree with the Seventh Circuit in
United States v.
Braasch, 505 F.2d
139, 151, n. 7 (1974), cert. denied, 421 U. S. 910 (1975),
that" 'the modern trend of the federal courts is to hold that
bribery and extortion as used in the Hobbs Ac[t] are not mutually
exclusive.
United States v.
Kahn, 472 F.2d
272, 278 (2d Cir. 1973), cert. den., 411 U. S. 982.'''
268
ress such as a demand,"
id., at 22, and it did not
properly describe the
quid pro quo requirement for
conviction if the jury found that the payment was a campaign
contribution.
We reject petitioner's criticism of the instruction, and
conclude that it satisfies the
quid pro quo requirement of
McCormick v.
United States, 500 U. S. 257 (1991),
because the offense is completed at the time when the public
official receives a payment in return for his agreement to perform
specific official acts; fulfillment of the
quid pro quo is
not an element of the offense. We also reject petitioner's
contention that an affirmative step is an element of the offense of
extortion "under color of official right" and need be included in
the instruction.19 As we explained above, our construction of the
statute is informed by the common-law tradition from which the term
of art was drawn and understood. We hold today that the Government
need only show that a public official has obtained a payment to
which he was not entitled, knowing that the payment was made in
return for official acts.20
Our conclusion is buttressed by the fact that so many other
courts that have considered the issue over the last 20 years have
interpreted the statute in the same way.21 Moreover,
19We do not reach petitioner's second claim pertaining to the
tax fraud count because, as petitioner conceded at oral argument,
we would only have to reach that claim in the event that petitioner
succeeded on his Hobbs Act claim. See Tr. of Oral Arg. 3-4, 27.
20 The dissent states that we have "simply made up,"
post, at 286, the requirement that the payment must be given
in return for official acts. On the contrary, that requirement is
derived from the statutory language "under color of official
right," which has a well-recognized common-law heritage that
distinguished between payments for private services and payments
for public services. See,
e. g., Collier v.
State, 55
Ala. 125 (1877), which the dissent describes as a "typical case."
Post, at 281.
21 See,
e. g., United States v.
Swift, 732 F.2d
878, 880 (CAll 1984), cert. denied, 469 U. S. 1158 (1985);
United States v.
Jannotti, 673 F. 2d, at 594
596;
United States v.
French, 628 F. 2d, at 1074;
United
States v.
Williams, 621 F. 2d, at 123-124;
United
States v.
Butler, 618 F. 2d, at 417-418;
United
States v.
Hall, 536 F. 2d, at 320-321;
United
States v.
Hathaway, 534 F.
269
given the number of appellate court decisions, together with the
fact that many of them have involved prosecutions of important
officials well known in the political community,22 it is obvious
that Congress is aware of the prevailing view that common-law
extortion is proscribed by the Hobbs Act. The silence of the body
that is empowered to give us a "contrary direction" if it does not
want the common-law rule to survive is consistent with an
application of the normal presumption identified in
Taylor
and
Morissette.
III
An argument not raised by petitioner is now advanced by the
dissent. It contends that common-law extortion was
limited
to wrongful takings under a false pretense of official right.
Post, at 279-280; see
post, at 281 (offense of
extortion "was understood ... [as] a wrongful taking
under a
false pretense of official right") (emphasis in original);
post, at 282. It is perfectly clear, however, that although
extortion accomplished by fraud was a well-recognized type of
extortion, there were other types as well. As the court explained
in
Commonwealth v.
Wilson, 30 Pa. Super. 26 (1906),
an extortion case involving a payment by a would-be brothel owner
to a police captain to ensure the opening of her house:
"The form of extortion most commonly dealt with in the decisions
is the corrupt taking by a person in office of a
2d, at 393-394;
United States v.
Price, 507 F.2d
1349 (CA4 1974);
United States v.
Braasch,
505 F. 2d, at 151.
22 For example, in
United States v.
Hall, supra,
the Governor of Oklahoma was convicted of extorting money "under
color of official right," in violation of the Hobbs Act; in
United States v.
Kenny, 462 F.2d
1205, 1211
(CA3 1972), each of the eight defendants, who
was part of a scheme to interfere with interstate commerce in
violation of the Hobbs Act, "was, or had been, a highly placed
public official or political leader in Jersey City or Hudson County
or both"; and in
United States v.
Jannotti, 673 F.
2d, at 578, the Government operation, which came to be known as
ABSCAM, led to the trial and conviction of various local and
federal public officials, which, in other phases of the operation,
included several Congressmen.
270
fee for services which should be rendered gratuitously; or when
compensation is permissible, of a larger fee than the law
justifies, or a fee not yet due; but this is not a complete
definition of the offense, by which I mean that it does not include
every form of common-law extortion." Id., at 30.
See also
Commonwealth v.
Brown, 23 Pa. Super. 470,
488489 (1903) (defendants charged with and convicted of conspiracy
to extort because they accepted pay for obtaining and procuring the
election of certain persons to the position of schoolteachers);
State v.
Sweeney, 180 Minn. 450, 456, 231 N. W. 225,
228 (1930) (alderman's acceptance of money for the erection of a
barn, the running of a gambling house, and the opening of a filling
station would constitute extortion) (dicta);
State v.
Barts, 132 N. J. L. 74, 76, 83, 38 A. 2d 838, 841, 844 (Sup.
Ct. 1944) (police officer, who received $1,000 for not arresting
someone who had stolen money, was properly convicted of extortion
because "generically extortion is an abuse of public justice and a
misuse by oppression of the power with which the law clothes a
public officer");
White v.
State, 56 Ga. 385, 389
(1876) (If a ministerial officer used his position "for the purpose
of awing or seducing" a person to pay him a bribe that would be
extortion).
The dissent's theory notwithstanding, not one of the cases it
cites, see
post, at 281-282, and n. 3, holds that the public
official is innocent unless he has deceived the payor by
representing that the payment was proper. Indeed, none makes any
reference to the state of mind of the payor, and none states that a
"false pretense" is an element of the offense. Instead, those cases
merely support the proposition that the services for which the fee
is paid must be official and that the official must not be entitled
to the fee that he collectedboth elements of the offense that are
clearly satisfied in this case. The complete absence of support for
the dissent's thesis presumably explains why it was not advanced by
petitioner in the District Court or the Court of Appeals, is
not
271
recognized by any Court of Appeals, and is not advanced in any
scholarly commentary.23
The judgment is affirmed.
It is so ordered.
23 Moreover, the dissent attempts to have it both ways in its
use of common-law history. It wants to draw an artificial line and
say that we should only look at American common law and not at the
more ancient English common law (even though the latter provided
the roots for the former), see
post, at 280-281, and at the
same time, it criticizes the Court for relying on a "'modern' view
of extortion,"
post, at 285-286, n. 4; it also uses a 1961
case, which was decided 15 years
after the enactment of the
Hobbs Act, to explain the American view of the common-law crime of
extortion at the time of the Act, see
ibid., even though it
claims that we are only supposed to look at "the American
understanding of the crime at the time the Hobbs Act was passed in
1946."
Post, at 281. Moreover, the 1961 case that it cites,
State v.
Begyn, 34 N. J. 35, 46, 167 A. 2d 161, 166,
in which a sanitary inspector was charged with extortion for
accepting payments by a scavenger who held a garbage removal
contract and who made payments in order to ensure the continuation
of the contract, merely supports the proposition that extortion was
not limited to the overpayment of fees. The common-law crime of
extortion was broader than the dissent now attempts to paint it,
and in any of the historical periods to which the dissent wants to
point there are cases that are contrary to the dissent's narrow
view. For "modern" cases, see
Begyn, supra, and
State
v.
Barts, 132 N. J. L. 74, 38 A. 2d 838 (1944); for early
American common-law cases, see
supra, at 269-270; and for
English common-law cases, see,
e. g., 36 Lincoln
Record Society, A Lincolnshire Assize Roll for 1298, p. 74, no. 322
(w. Thomson ed. 1944) (Adam of Lung (1298)) (was convicted of
extortion for accepting payment to spare a man from having to
contribute to an official collection of a quantity of malt); 10
Calendar of Patent Rolls, Edward III, A. D. 1354-1358, p. 449
(1909) (Hugh de Elmeshale (1356)) (coroner would not perform his
"office without great ransoms and that he used to extort money from
the people by false and feigned indictments"); Calendar of Patent
Rolls, Edward II, A. D. 1313-1317, pp. 681-682 (1898) (Robert de
Somery (1317)) (Robert de Somery, commissioner of array for
Worcester received money from men "in order that by his connivance
they might escape service and remain at home"); 1 Middlesex County
Records (Old Series) 69 (J. Jeaffreson ed. 1886) (Smythe (1570))
(one of Queen Elizabeth's providers of wagons for ale and beer "by
color of his office took extortionately" payments from the wagon
owners to exonerate them from their obligations to the Queen).
272
Opinion of KENNEDY, J.
JUSTICE O'CONNOR, concurring in part and concurring in the
judgment.
I join Parts I and II of the Court's opinion, because in my view
they correctly answer the question on which the Court granted
certiorari-whether or not an act of inducement is an element of the
offense of extortion under color of official right. See Pet. for
Cert. i. The issue raised by the dissent and discussed in Part III
of the Court's opinion is not fairly included in this question, see
this Court's Rule 14.1(a), and sound prudential reasons suggest
that the Court should not address it. Cf.
Yee v.
Escondido, 503
U. S. 519, 535-538 (1992). Neither party in this case has
briefed or argued the question. A proper resolution of the issue
requires a detailed examination of common law extortion cases,
which in turn requires intensive historical research. As there
appear to be substantial arguments on either side, we would be far
more assured of arriving at the correct result were we to await a
case in which the issue had been addressed by the parties. It is
unfair to the United States to decide a case on a ground not raised
by the petitioner and which the United States has had no
opportunity to address. For these reasons, I join neither the
dissent nor Part III of the Court's opinion, and I express no view
as to which is correct.
JUSTICE KENNEDY, concurring in part and concurring in the
judgment.
The Court gives a summary of its decision in these words:
"We hold today that the Government need only show that a public
official has obtained a payment to which he was not entitled,
knowing that the payment was made in return for official acts."
Ante, at 268. In my view the dissent is correct to conclude
that this language requires a
quid pro quo as an element of
the Government's case in a prosecution under 18 U. S. C. § 1951,
see
post, at 285-287, and the Court's opinion can be
interpreted in a way that is consistent with this rule. Although
the Court appears to accept the re-
273
quirement of a
quid pro quo as an alternative rationale,
in my view this element of the offense is essential to a
determination of those acts which are criminal and those which are
not in a case in which the official does not pretend that he is
entitled by law to the property in question. Here the prosecution
did establish a
quid pro quo that embodied the necessary
elements of a statutory violation. I join Part III of the Court's
opinion and concur in the judgment affirming the conviction. I
write this separate opinion to explain my analysis and
understanding of the statute.
With regard to the question whether the word "induced" in the
statutory definition of extortion applies to the phrase "under
color of official right," 18 U. S. C. § 1951(b)(2), I find myself
in substantial agreement with the dissent. Scrutiny of the
placement of commas will not, in the final analysis, yield a
convincing answer, and we are left with two quite plausible
interpretations. Under these circumstances, I agree with the
dissent that the rule of lenity requires that we avoid the harsher
one. See
post, at 289. We must take as our starting point
the assumption that the portion of the statute at issue here
defines extortion as "the obtaining of property from another, with
his consent, induced ... under color of official right."
I agree with the Court, on the other hand, that the word
"induced" does not "necessarily indicat[e] that the transaction
must be
initiated by the" public official.
Ante, at
266 (emphasis in original). Something beyond the mere acceptance of
property from another is required, however, or else the word
"induced" would be superfluous. That something, I submit, is the
quid pro quo. The ability of the official to use or refrain
from using authority is the "color of official right" which can be
invoked in a corrupt way to induce payment of money or to otherwise
obtain property. The inducement generates a
quid pro quo,
under color of official right, that the statute prohibits. The term
"under color of" is used, as I think both the Court and the dissent
agree, to
274
Opinion of KENNEDY, J.
sweep within the statute those corrupt exercises of authority
that the law forbids but that nevertheless cause damage because the
exercise is by a governmental official. Cf.
Monroe v.
Pape, 365 U.
S. 167, 184 (1961) (" 'Misuse of power, possessed by virtue of
state law and made possible only because the wrongdoer is clothed
with the authority of state law, is action taken 'under color of'
state law''') (quoting
United States v.
Classic,
313 U. S. 299,
326 (1941)).
The requirement of a
quid pro quo means that without
pretense of any entitlement to the payment, a public official
violates § 1951 if he intends the payor to believe that absent
payment the official is likely to abuse his office and his trust to
the detriment and injury of the prospective payor or to give the
prospective payor less favorable treatment if the
quid pro
quo is not satisfied. The official and the payor need not state
the
quid pro quo in express terms, for otherwise the law's
effect could be frustrated by knowing winks and nods. The
inducement from the official is criminal if it is express or if it
is implied from his words and actions, so long as he intends it to
be so and the payor so interprets it.
The criminal law in the usual course concerns itself with
motives and consequences, not formalities. And the trier of fact is
quite capable of deciding the intent with which words were spoken
or actions taken as well as the reasonable construction given to
them by the official and the payor. See
McCormick v.
United States, 500 U. S. 257, 270 (1991)
("It goes without saying that matters of intent are for the jury to
consider"). In this respect a prosecution under the statute has
some similarities to a contract dispute, with the added and vital
element that motive is crucial. For example, a
quid pro quo
with the attendant corrupt motive can be inferred from an ongoing
course of conduct. Cf.
United States v.
O'Grady,
742 F.2d
682, 694 (CA2 1984) (Pierce, J., concurring). In such
instances, for a public official to commit extortion under color of
official right, his course of dealings must establish a real
understanding that failure to make
275
a payment will result in the victimization of the prospective
payor or the withholding of more favorable treatment, a
victimization or withholding accomplished by taking or refraining
from taking official action, all in breach of the official's trust.
See Lindgren, The Elusive Distinction Between Bribery and
Extortion: From the Common Law to the Hobbs Act, 35 UCLA L. Rev.
815, 887-888 (1988) (observing that the offense of official
extortion has always focused on public corruption).
Thus, I agree with the Court, that the
quid pro quo
requirement is not simply made up, as the dissent asserts.
Post, at 287. Instead, this essential element of the offense
is derived from the statutory requirement that the official receive
payment under color of official right, see
ante, at 268, n.
20, as well as the inducement requirement. And there are additional
principles of construction which justify this interpretation. First
is the principle that statutes are to be construed so that they are
constitutional. See
Edward J. DeBartolo Corp.
v.
Florida Gulf Coast Building &
Construction Trades
Council, 485 U.
S. 568, 575 (1988), and cases cited therein. As one Court of
Appeals Judge who agreed with the construction the Court today
adopts noted, "the phrase 'under color of official right,' standing
alone, is vague almost to the point of unconstitutionality."
United States v.
O'Grady, supra, at 695 (Van
Graafeiland, J., concurring in part and dissenting in part) (citing
Hoffman Estates v.
Flipside, Hoffman Estates, Inc.,
455 U. S. 489,
498-499 (1982)). By placing upon a criminal statute a narrow
construction, we avoid the possibility of imputing to Congress an
enactment that lacks necessary precision.
Moreover, the mechanism which controls and limits the scope of
official right extortion is a familiar one: a state of mind
requirement. See
Morissette v.
United States, 342 U.
S. 246 (1952) (refusing to impute to Congress the intent to create
a strict liability crime despite the absence of any explicit
mens rea requirement in the statute). Hence, even
276
Opinion of KENNEDY, J.
if the
quid pro quo requirement did not have firm roots
in the statutory language, it would constitute no abuse of judicial
power for us to find it by implication.
Morissette legitimates the Court's decision in an
additional way. As both the Court and the dissent agree, compare
ante, at 260, n. 4, with
post, at 288, n. 5,
Congress' choice of the phrase "under color of official right"
rather than "by colour of his office" does not reflect a
substantive modification of the common law. Instead, both the Court
and dissent conclude that the language at issue here must be
interpreted in light of the familiar principle that absent any
indication otherwise, Congress meant its words to be interpreted in
light of the common law.
Morissette, supra, at 263. As to
the meaning of the common law, I agree with the Court's analysis
and therefore join Part III of the Court's opinion.
While the dissent may well be correct that prior to the
enactment of the Hobbs Act a large number of the reported official
extortion cases in the United States happened to involve false
pretenses, those cases do not so much as hint that a false pretense
of right was ever considered as an essential element of the
offense. See,
e. g., People v.
Whaley, 6 Cow.
661,663-664 (N. Y. Sup. Ct. 1827) ("Extortion signifies, in an
enlarged sense, any oppression under color of right. In a stricter
sense, it signifies the taking of money by any officer, by color of
his office; either, where none at all is due, or not so much due,
or when it is not yet due");
Hanley v.
State, 125
Wis. 396, 401-402, 104 N. W. 57, 59 (1905) ("The commonlaw offense
of extortion is said 'to be an abuse of public justice, which
consists in any officer's unlawfully taking by color of his office,
from any man, any money or thing of value that is not due him, or
more than is due him, or before it is due' ") (quoting 4 W.
Blackstone, Commentaries *141). Furthermore, as the Court
demonstrates, see
ante, at 269-270, during the same period
other American courts affirmed convictions of public officials for
extortion based upon corrupt receipt of payment absent any claim of
right.
277
Morissette is relevant in one final respect. As I have
indicated, and as the jury instructions in this case made clear, an
official violates the statute only if he agrees to receive a
payment not due him in exchange for an official act, knowing that
he is not entitled to the payment. See App. 13 (requiring "wrongful
use of otherwise valid official power"). Modern courts familiar
with the principle that only a clear congressional statement can
create a strict liability offense, see
Morissette, supra,
understand this fundamental limitation. I point it out only because
the express terms of the commonlaw definition of official extortion
do not state the requirement that the official's intent be corrupt,
see,
e. g., Whaley, supra, at 663-664;
Hanley, supra,
at 401-402, 104 N. W., at 59; Lindgren, 35 UCLA L. Rev., at 870-871
(setting forth six colonial-era definitions of official extortion),
and some courts in this country appear to have taken the view that
the common-law offense had no
mens rea requirement. See,
e. g., Commonwealth v.
Bagley, 24 Mass. 279, 281
(1828) (affirming the conviction "of an honest and meritorious
public officer, who by misapprehension of his rights [had] demanded
and received a lawful fee for a service not yet performed"). On the
other hand, in other jurisdictions corrupt motive was thought to be
an element of the offense.
E. g., Whaley, supra, at 664
(remarking that the jury found that the defendant accepted payment
"with the corrupt intent charged in the indictment"). In any event,
even if the rule had been otherwise at common law, our modern
jurisprudence would require that there be a
mens rea
requirement now. In short, a public official who labors under the
good-faith but erroneous belief that he is entitled to payment for
an official act does not violate the statute. That circumstance is
not, however, presented here.
The requirement of a
quid pro quo in a § 1951 prosecution
such as the one before us, in which it is alleged that money was
given to the public official in the form of a campaign
contribution, was established by our decision last Term in
278
McCormick v.
United States, 500 U. S. 257 (1991).
Readers of today's opinion should have little difficulty in
understanding that the rationale underlying the Court's holding
applies not only in campaign contribution cases, but in all § 1951
prosecutions. That is as it should be, for, given a corrupt motive,
the
quid pro quo, as I have said, is the essence of the
offense.
Because I agree that the jury instruction in this case complied
with the
quid pro quo requirement, I concur in the judgment
of the Court.
JUSTICE THOMAS, with whom THE CHIEF JUSTICE and JUSTICE SCALIA
join, dissenting.
The Court's analysis is based on the premise, with which I fully
agree, that when Congress employs legal terms of art, it " 'knows
and adopts the cluster of ideas that were attached to each borrowed
word in the body of learning from which it was taken and the
meaning its use will convey to the judicial mind.'''
Ante,
at 259 (quoting
Morissette v.
United States, 342 U. S. 246, 263
(1952)). Thus, we presume, Congress knew the meaning of common-law
extortion when it enacted the Hobbs Act, 18 U. S. C. § 1951.
Unfortunately, today's opinion misapprehends that meaning and
misconstrues the statute. I respectfully dissent.
I
Extortion is one of the oldest crimes in Anglo-American
jurisprudence. See 3 E. Coke, Institutes *541. Hawkins provides the
classic common-law definition: "[I]t is said, that Extortion in a
large Sense signifies any Oppression
under Colour of Right;
but that in a strict Sense it signifies the Taking of Money by any
Officer,
by Colour of his Office, either where none at all
is due, or not so much is due, or where it is not yet due." 1 W.
Hawkins, Pleas of the Crown 170 (2d ed. 1724) (emphasis added).
Blackstone echoed that definition: "[E]xtortion is an abuse of
public justice, which
279
consists in any officer's unlawfully taking,
by colour of
his office, from any man, any money or thing of value, that is not
due to him, or more than is due, or before it is due." 4 W.
Blackstone, Commentaries 141 (1769) (emphasis added).
These definitions pose, but do not answer, the critical
question: What does it mean for an official to take money "by
colour of his office"? The Court fails to address this question,
simply assuming that common-law extortion encompassed
any
taking by a public official of something of value that he was not
"due."
Ante, at 260.
The "under color of office" element of extortion, however, had a
definite and well-established meaning at common law. "At common law
it was essential that the money or property be obtained under color
of office,
that is, under the pretense that the officer was
entitled thereto by virtue of his office. The money or thing
received must have been claimed or accepted in right of office, and
the person paying must have yielded to official authority." 3 R.
Anderson, Wharton's Criminal Law and Procedure § 1393, pp. 790-791
(1957) (emphasis added).l Thus, although the Court purports to
1 That was straightforward black-letter law at the time the
Hobbs Act was passed in 1946, and continues to be straightforward
black-letter law today. See,
e. g., 1 W. Burdick, Law
of Crime § 275, p. 395 (1946) ("At common law, the money or other
thing of value must be taken under color of office. That is, the
service rendered, or to be rendered, or pretended to have been
rendered, must be apparently, or pretended to be,
within
official power or authority, and the money must be taken in such an
apparent or claimed capacity") (emphasis added; footnotes
omitted); 31A Am. Jur. 2d § 11, p. 600 (1989) ("In order to
constitute extortion, the taking must take place under color of
office-that is,
under the pretense that the officer is entitled
to the fee by virtue of his or her office. This requires that
the service rendered must be apparently, or pretended to be, within
official power or authority, and the money
must be taken in such
apparent or claimed authority") (emphasis added; footnotes
omitted). Cf. 7 Cyclopedia of Law and Procedure 401-402 (1903)
(defining "color of office" as "a pretense of official right to do
an act made by one who has no such right; the mere semblance,
shadow, or false appearance of official authority; the dissembling
face of the right of office; the use of official authority as a
280
define official extortion under the Hobbs Act by reference to
the common law, its definition bears scant resemblance to the
common-law crime Congress presumably codified in 1946.
A
The Court's historical analysis rests upon a theory set forth in
one law review article. See
ante, at 260, and nn. 4-6
(citing Lindgren, The Elusive Distinction Between Bribery and
Extortion: From the Common Law to the Hobbs Act, 35 UCLA L. Rev.
815 (1988)). Focusing on early English cases, the article argues
that common-law extortion encompassed a wide range of official
takings, whether by coercion, false pretenses, or bribery. Whatever
the merits of that argument as a description of early English
common law,2 it is
pretext or cover for the commission of some corrupt or vicious
act; an act evilly done, by the countenance of an office; an act
unjustly done by the countenance of an office; an act wrongfully
done by an officer under the pretended authority of his office; and
is always taken in the worst sense, being grounded upon corruption,
of which the office is as a mere shadow or color; under statutes,
the phrase is used to define an illegal claim of right or authority
to take the security; some illegal exertion of authority, whereby
an obligation is extorted which the statute does not require to be
given") (footnotes omitted).
2 Those merits are far from clear. Most commentators maintain
that extortion and bribery were distinct crimes at early English
common law. See,
e. g., J. Noonan, Bribes 398,
585-587 (1984); Ruff, Federal Prosecution of Local Corruption: A
Case Study in the Making of Law Enforcement Policy, 65 Geo. L. J.
1171, 1179-1180 (1977). While-as I explain belowProfessor Lindgren
may well be correct that common-law extortion did not contain an
"inducement" element, in my view he does not adequately account for
the crime's "by color of office" element. This latter element has
existed since long before the founding of the Republic, and cannot
simply be ignored. As Chief Justice Mountague explained over four
centuries ago,
colore officii sui ("by color of his office")
"signifies an Act badly done
under the Countenance of an
Office, and it bears
a dissembling Visage of Duty, and
is properly called Extortion."
Dive v.
Maningham, 1
Plowd. 60, 68, 75 Eng. Rep. 96, 108
(C. B. 1550) (emphasis
added). See also 3 E. Coke, Institutes *542 (describing extortion
as "more odious than
281
beside the point here-the critical inquiry for our purposes is
the American understanding of the crime at the time the Hobbs Act
was passed in 1946. Cf.
Harmelin v.
Michigan,
501 U. S. 957,
975 (1991) (plurality opinion) (English historical background is
relevant in determining the meaning of a constitutional provision,
but the "ultimate question" is the meaning of that provision to the
Americans who adopted it).
A survey of 19th- and early 20th-century cases construing state
extortion statutes in light of the common law makes plain that the
offense was understood to involve not merely a wrongful taking by a
public official, but a wrongful taking
under a false pretense of
official right. A typical case is
Collier v.
State, 55 Ala. 125 (1877). The defendant there was a local
prosecutor who, for a fee, had given legal advice to a criminal
suspect. The Alabama Supreme Court rejected the State's contention
that the defendant's receipt of the fee-even though
improper-amounted to "extortion," because he had not taken the
money "under color of his office." "The object of the [extortion]
statute is ... not the obtaining money by mere impropriety of
conduct, or by fraud, by persons filling official position."
Id., at 127. Rather, the court explained, "[a] taking under
color of office is of the essence of the offense.
The money or
thing received must have been claimed, or accepted, in right of
office, and the person paying must have been yielding to official
authority." Id., at 128 (emphasis added). That a public
official took money he was not due was not enough. "[T]hough the
defendant may have been guilty of official infidelity, the wrong
was to the State only, and no wrong was done the person paying the
money. That wrong is not punishable under this indictment. Private
and public wrong must concur, to constitute
robbery; for robbery is apparent, and hath the face of a crime,
but
extortion puts on the visure of virtue") (emphasis
added).
282
extortion."
Ibid. Numerous decisions from other
jurisdictions confirm that an official obtained a payment "under
color of his office" only-as the phrase suggests-when he used the
office to assert a false pretense of official right to the
payment.3
Because the Court misapprehends the "color of office"
requirement, the crime it describes today is not the commonlaw
crime that Congress presumably incorporated into the Hobbs Act. The
explanation for this error is clear. The
3 See,
e. g., People v.
Whaley, 6 Cow. 661 (N. Y.
Sup. Ct. 1827) (affirming the extortion conviction of a justice of
the peace who had charged a litigant a court fee when none was
due);
Commonwealth v.
Bagley, 24 Mass. 279, 281
(1828) (affirming the extortion conviction of a deputy jailkeeper
who had demanded and received a fee when none was due);
State v.
Stotts, 5 Black. 460, 460-461 (Ind. 1840)
(affirming the extortion conviction of a constable who had charged
a greater fee than was due for performance of his services);
State v.
Burton, 3 Ind. 93, 93-95 (1851) (affirming
the extortion conviction of a county treasurer who had charged a
fee for his services where none was due);
Williams v.
State, 34 Tenn. 160, 162 (1854) (affirming the extortion
conviction of a county constable who had charged a fee for official
services that he did not perform);
State v.
Vasel, 47
Mo. 416, 417418 (1871) (affirming the extortion conviction of a
deputy constable who had wrongfully collected a fee before it was
legally due);
Cutter v.
State, 36 N. J. L. 125, 128
(1873) (reversing the extortion conviction of a justice of the
peace who had charged for his services a fee to which he was not
entitled, but may have done so under a mistaken belief of right);
Loftus v.
State, 19 A. 183, 184 (N. J. Ct. Err. App.
1890) (affirming the extortion conviction of a justice of the peace
who had charged an excessive fee for his services);
Commonwealth v.
Saulsbury, 152 Pa. 554, 559-560, 25
A. 610,611-612 (1893) (reversing, on evidentiary grounds, the
extortion conviction of a deputy constable who had charged an
excessive fee for his services);
Hanley v.
State, 125
Wis. 396,401-402, 104 N. W. 57, 59 (1905) (affirming the extortion
conviction of two constables who wrongfully demanded a fee for
executing a warrant);
State v.
Cooper, 120 Tenn. 549,
552-554, 113 S. W. 1048, 1049 (1908) (reinstating the extortion
indictment of a justice of the peace who had collected a fee as a
bail bond before it was due);
Dean v.
State, 9 Ga.
App. 303, 305-306, 71 S. E. 597,598 (1911) (affirming the extortion
conviction of a constable who had used his office to collect money
that he was not due); cf.
La Tour v.
Stone, 139 Fla.
681, 693-694, 190 So. 704, 709 (1939) (describing common-law
extortion).
283
Court's historical foray has the single-minded purpose of
proving that common-law extortion did
not include an element
of "inducement"; in its haste to reach that conclusion, the Court
fails to consider the elements that common-law extortion
did
include. Even if the Court were correct that an official
could commit extortion at common law simply by receiving
(but not "inducing") an unlawful payment, it does not follow either
historically or logically that an official
automatically
committed extortion whenever he received such a payment.
The Court, therefore, errs in asserting that common-law
extortion is the "rough equivalent of what we would now describe as
'taking a bribe.'"
Ante, at 260.
Regardless of
whether extortion contains an "inducement" requirement, bribery and
extortion are different crimes. An official who solicits or takes a
bribe does
not do so "under color of office"; i.
e.,
under any pretense of official entitlement. "The distinction
between bribery and extortion seems to be that the former offense
consists in offering a present or receiving one, the latter in
demanding a fee or present
by color of office." State
v.
Pritchard, 107 N. C. 921, 929, 12 S. E. 50, 52 (1890)
(emphasis added). Where extortion is at issue, the public official
is the sole wrongdoer; because he acts "under color of office," the
law regards the payor as an innocent victim and not an accomplice.
See,
e. g., 1 W. Burdick, Law of Crime §§ 273-275,
pp. 392-396 (1946). With bribery, in contrast, the payor
knows the recipient official is not entitled to the payment;
he, as well as the official, may be punished for the offense. See,
e. g., id., §§ 288-292, at 426-436. Congress is well
aware of the distinction between the crimes; it has always treated
them separately. Compare 18 U. S. C. § 872
("[e]xtortion by
officers or employees of the United States" (emphasis added), which
criminalizes extortion by federal officials, and makes no provision
for punishment of the payor), with 18 U. S. C. § 201
("[b]ribery of public officials and witnesses" (emphasis
added), which criminalizes bribery of and
284
by federal officials). By stretching the bounds of extortion to
make it encompass bribery, the Court today blurs the traditional
distinction between the crimes.4
4 The Court alleges a "complete absence of support" for the
definition of common-law extortion set forth in this dissent, and
cites five American cases that allegedly support its understanding
of the crime.
Ante, at 269271. The Court is mistaken on both
counts: even a brief perusal of 19thand early 20th-century cases,
as well as treatises and hornbooks, shows that my description of
the crime is anything but novel, and the cases cited by the Court
in no way support its argument.
The Court first cites two intermediate-court cases from
Pennsylvania,
Commonwealth v.
Wilson, 30 Pa. Super.
26 (1906), and
Commonwealth v.
Brown, 23 Pa. Super.
470 (1903). Those opinions, both written by one Judge Rice, display
an obvious misunderstanding of the meaning of "color of office."
Citing the definition of that phrase set forth in the Cyclopedia of
Law and Practice, see n. 1,
supra, the Court confuses a
false pretense of official authority
to receive a payment
with a false pretense of official authority
to do an official
act. See
Wilson, supra, at 31 ("Bribery on the part of
an officer and extortion are not identical, but they are very
closely allied; and whilst the former does not necessarily involve
a pretense of official authority
to do the act for which the
bribe is given, yet, if such pretense is used
to induce
its payment, we see no reason to doubt that the taking of it is
common-law extortion as well as bribery") (emphasis added). But, as
Hawkins, Blackstone, and all other expositors of black-letter law
make clear, the crux of common-law extortion was the unlawful
taking of money by color of office,
not the unlawful taking
of money to do an act by color of office.
In any event, the Pennsylvania court's unorthodox understanding
of common-law extortion in no way supports the Court's definition
of the crime, as the Pennsylvania court explicitly required a
pretense of authority to
induce the unlawful
payment-precisely the requirement the Court today rejects. See also
Commonwealth v.
Francis, 201 Pa. Super. 313, 322-323,
191 A. 2d 884, 889 (1963) (citing
Wilson and
Brown
for the proposition that "the extraction of money or other things
of value
under a threat of using the power of one's office
may constitute extortion" and explaining that "[a]lthough we have
recognized that the crimes of common law extortion and bribery may
coincide at times, ... it is generally held that they are mutually
exclusive crimes") (emphasis added).
The third case cited by the Court,
State v.
Sweeney, 180 Minn. 450, 231 N. W. 225 (1930), does not
involve extortion at all-it upheld a Minneapolis alderman's
conviction for
bribery. At trial on one charge of receiving
a
285
B
Perhaps because the common-law crime-as the Court defines it-is
so expansive, the Court, at the very end of its opinion, appends a
qualification: "We hold today that the
bribe, the State introduced evidence that the defendant had
received other bribes, some from gambling houses. He challenged the
admission of the evidence of other crimes; the court rejected that
challenge on evidentiary grounds. In passing, however, the court
said: "It may be noted, however, that
it may be that the
defendant and [another alderman], in dealing with the gambling
houses, were guilty of extortion under [the state statute]."
Id., at 456, 231 N. w., at 228 (emphasis added). That is
all. The Court's parenthetical claim that "dicta" in the opinion
support the proposition that "alderman's acceptance of money for
the erection of a barn, the running of a gambling house, and the
opening of a filling station
would constitute extortion" is,
at best, a gross overstatement.
Ante, at 270.
Fourth, the Court cites
State v.
Barts, 132 N. J.
L. 74, 76, 83, 38 A. 2d 838, 841, 844 (1944), which upheld the
extortion conviction of a police officer, based essentially on a
bribery rationale. As the New Jersey Supreme Court has neatly
explained, however, that case represented a
departure from
the traditional common law of extortion:
"Our extortion statute, which had its origin at least as early
as 1796, appears on its face to have been originally intended to be
reiterative of the common law. The essence of that offense was the
receiving or taking by any public officer, by color of his office,
of any fee or reward not allowed by law for performing his duties.
The purpose would seem to be simply
to penalize the officer who
non-innocently insisted upon a larger fee than he was entitled to
or a fee where none was permitted or required to be paid for the
performance of an obligatory function of his office. The matter
was obviously of particular importance in the days when public
officials received their compensation through fees collected and
not by fixed salary. Our early cases dealt with precisely this kind
of a situation. [Citing,
inter alia, Cutter v.
State
and
Loftus v.
State, see n. 3,
supra].
"After a couple of opinions possibly indicating an extension to
cover payments demanded for the favorable exercise of discretionary
powers of the officer,
an enlarged construction of the statute
to its present day scope was announced in
State v.
Barts .... This
present construction of the crime
thus overlaps the offense of bribery since extortion is committed
even where the object of the payment is in reality to influence an
officer in his official behavior or conduct without such having to
be established."
State v.
Begyn, 34 N. J. 35, 46-47,
167 A. 2d 161, 166-167 (1961) (emphasis added; citations omitted).
If the Court wishes to adopt the "modern"
286
Government need only show that a public official has obtained a
payment to which he was not entitled,
knowing that the payment
was made in return for official acts." Ante, at 268 (emphasis
added). This
quid pro quo requirement is simply made up. The
Court does not suggest that it has any basis in the common law or
the language of the Hobbs Act, and I have found no treatise or
dictionary that refers to any such requirement in defining
"extortion."
Its only conceivable source, in fact, is our opinion last Term
in
McCormick v.
United States, 500 U. S. 257 (1991).
Quite sensibly, we insisted in that case that, unless the
Government established the existence of a
quid pro quo, a
public official could not be convicted of extortion under the Hobbs
Act for accepting a campaign contribution. We did not purport to
discern that requirement in the common law or statutory text, but
imposed it to prevent the Hobbs Act from effecting a radical (and
absurd) change in American political life. "To
view of extortion, fine; but it should not attempt to present
that view as "common-law history."
Finally, the Court cites
White v.
State, 56 Ga.
385 (1876). There the Georgia Supreme Court reversed the extortion
conviction of a special constable who was charged with improperly
keeping a fee that he had collected. The court first explained that
a transaction was
not extortion if the defendant "took the
money in good faith,
without any claim to it." Id., at 389
(emphasis added). The court then went on, in dicta, to assert that
if an officer "should use his authority, or any process of law in
his hands, for the purpose of
awing or seducing any person
into paying him a bribe, that would, doubtless, be extortion."
Ibid. (emphasis added). For this latter proposition the
Georgia court cited no authority. The court's error is manifest: it
confused the common-law meaning of extortion (an officer wrongfully
taking money under color of his office) with the colloquial meaning
of the term (which conjures up coercion, and thus is at once
broader and narrower than the common law). To the extent that
White's dicta cuts against my understanding of common-law
extortion, of course, it cuts equally strongly against the Court's,
for, like the Pennsylvania cases cited earlier in this footnote, it
quite obviously requires that the extorted payment be "induced" by
the officer-the very requirement the Court today rejects.
287
hold otherwise would open to prosecution not only conduct that
has long been thought to be well within the law but also conduct
that in a very real sense is unavoidable so long as election
campaigns are financed by private contributions or expenditures, as
they have been from the beginning of the Nation. It would require
statutory language more explicit than the Hobbs Act contains to
justify a contrary conclusion."
Id., at 272-273. We
expressly limited our holding to campaign contributions.
Id., at 274, n. 10 ("[W]e do not decide whether a
quid
pro quo requirement exists in other contexts, such as when an
elected official receives gifts, meals, travel expenses, or other
items of value").
Because the common-law history of extortion was neither properly
briefed nor argued in
McCormick, see
id., at 268, n.
6;
id., at 276-277 (SCALIA, J., concurring), the
quid pro
quo limitation imposed there represented a reasonable first
step in the right direction. Now that we squarely consider that
history, however, it is apparent that that limitation was in fact
overly modest: at common law, McCormick was innocent of extortion
not because he failed to offer a
quid pro quo in
return for campaign contributions, but because he did not take the
contributions under color of official right. Today's extension of
McCormick's reasonable (but textually and historically
artificial)
quid pro quo limitation to
all cases of
official extortion is both unexplained and inexplicable-except
insofar as it may serve to rescue the Court's definition of
extortion from substantial overbreadth.
II
As serious as the Court's disregard for history is its disregard
for well-established principles of statutory construction. The
Court chooses not only the harshest interpretation of a criminal
statute, but also the interpretation that maximizes federal
criminal jurisdiction over state and local officials. I would
reject both choices.
288
A
The Hobbs Act defines "extortion" as "the obtaining of property
from another, with his consent,
induced by wrongful use of
actual or threatened force, violence, or fear, or
under color of
official right." 18 U. s. C. § 1951(b)(2) (emphasis added).5
Evans argues, in part, that he did not "induce" any payment. The
Court rejects that argument, concluding that the verb "induced"
applies
only to the first portion of the definition.
Ante, at 265. Thus, according to the Court, the statute
should read: "'The term "extortion" means the obtaining of property
from another, with his consent,
either [1] induced by
wrongful use of actual or threatened force, violence, or fear,
or [2] under color of official right.'"
Ante, at 265,
n. 15. That is, I concede, a
conceivable construction of the
words. But it is-at the very least-forced, for it sets up an
unnatural and ungrammatical parallel between the
verb
"induced" and the
preposition "under."
The more natural construction is that the verb "induced" applies
to
both types of extortion described in the statute. Thus,
the unstated "either" belongs
after "induced": "The term
'extortion' means the obtaining of property from another, with his
consent, induced
either [1] by wrongful use of actual or
threatened force, violence, or fear,
or [2] under color of
official right." This construction comports with correct grammar
and standard usage by setting up a parallel between two
prepositional phrases, the first beginning with "by"; the second
with "under." 6
5 I have no quarrel with the Court's suggestion, see
ante
at 260, n. 4, that there is no difference of substance between the
classic common-law phrase "by colour of his office" and the Hobbs
Act's formulation "under color of official right." The Act's
formulation, of course, only underscores extortion's essential
element of a false assertion of
official right to a
payment.
6 This is, moreover, the construction long espoused by the
Justice Department. See U. S. Dept. of Justice, United States
Attorneys' Manual § 9-131.180 (1984) ("[T]here is some question as
to whether the Hobbs Act
289
Our duty in construing this criminal statute, then, is
clear:
"The Court has often stated that when there are two rational
readings of a criminal statute, one harsher than the other, we are
to choose the harsher only when Congress has spoken in clear and
definite language."
McNally v.
United States,
483 U. S. 350,
359-360 (1987). See also
United States v.
Wiltberger,
5 Wheat. 76, 95 (1820) (Marshall, C. J.). Because the Court's
expansive interpretation of the statute is not the only plausible
one, the rule of lenity compels adoption of the narrower
interpretation. That rule, as we have explained on many occasions,
serves two vitally important functions:
"First, 'a fair warning should be given to the world in language
that the common world will understand, of what the law intends to
do if a certain line is passed. To make the warning fair, so far as
possible the line should be clear.' Second, because of the
seriousness of criminal penalties, and because criminal punishment
usually represents the moral condemnation of the community,
legislatures and not courts should define criminal activity."
United States v. Bass, 404 U. S. 336, 348 (1971)
(citations omitted; footnote omitted).
Given the text of the statute and the rule of lenity, I believe
that inducement is an element of official extortion under the Hobbs
Act.
Perhaps sensing the weakness of its position, the Court suggests
an alternative interpretation: even if the statute
does set
forth an "inducement" requirement for official extortion, that
requirement is always satisfied, because "the coercive element is
provided by the public office itself."
defines [official] extortion as 'the obtaining of property from
another under color of official right,' or as 'the obtaining of
property from another, with his consent,
induced under color
of official right.' ... [T]he grammatical structure of the Hobbs
Act would appear to support the latter language") (emphasis
added).
290
Ante, at 266. I disagree. A particular public official,
to be sure, may wield his power in such a way as to coerce unlawful
payments, even in the absence of any explicit demand or threat. But
it ignores reality to assert that
every public official, in
every context, automatically exerts coercive influence on
others by virtue of his office. If the chairman of General Motors
meets with a local court clerk, for example, whatever implicit
coercive pressures exist will surely not emanate from the clerk. In
Miranda v.
Arizona, 384 U. S. 436 (1966), of
course, this Court established a presumption of "inherently
compelling pressures" in the context of official custodial
interrogation.
Id., at 467. Now, apparently, we assume that
all public officials exude an aura of coercion at
all
places and at
all times. That is not progress.
B
The Court's construction of the Hobbs Act is repugnant not only
to the basic tenets of criminal justice reflected in the rule of
lenity, but also to basic tenets of federalism. Over the past 20
years, the Hobbs Act has served as the engine for a stunning
expansion of federal criminal jurisdiction into a field
traditionally policed by state and local laws-acts of public
corruption by state and local officials. See generally Ruff,
Federal Prosecution of Local Corruption: A Case Study in the Making
of Law Enforcement Policy, 65 Geo. L. J. 1171 (1977). That
expansion was born of a single sentence in a Third Circuit opinion:
"[The 'under color of official right' language in the Hobbs Act]
repeats the common law definition of extortion, a crime which could
only be committed by a public official, and which did not require
proof of threat, fear, or duress."
United States v.
Kenny, 462 F.2d
1205, 1229, cert. denied, 409 U. S. 914 (1972). As explained
above, that sentence is not necessarily incorrect in its
description of what common-law extortion did
not require;
unfortunately, it omits an important part of what common-law
extortion
did require. By over-
291
looking the traditional meaning of "under color of official
right,"
Kenny obliterated the distinction between extortion
and bribery, essentially creating a new crime encompassing
both.
"As effectively as if there were federal common law crimes, the
court in Kenny ... amend[ed] the Hobbs Act and [brought]
into existence a new crime-local bribery affecting interstate
commerce. Hereafter, for purposes of Hobbs Act prosecutions, such
bribery was to be called extortion. The federal policing of state
corruption had begun." J. Noonan, Bribes 586 (1984).
After
Kenny, federal prosecutors came to view the Hobbs
Act as a license for ferreting out
all wrongdoing at the
state and local level-" 'a special code of integrity for public
officials.'"
United States v.
O'Grady, 742 F.2d
682, 694 (CA2 1984) (en bane) (quoting letter from Raymond J.
Dearie, United States Attorney for the Eastern District of New
York, to the United States Court of Appeals for the Second Circuit,
dated Jan. 21,1983). In short order, most other Circuits followed
Kenny's lead and upheld, based on a bribery rationale, the
Hobbs Act extortion convictions of an astonishing variety of state
and local officials, from a State Governor, see
United
States v.
Hall, 536 F.2d
313, 320-321 (CAlO), cert. denied, 429 U. S. 919 (1976), down
to a local policeman, see
United States v.
Braasch,
505 F.2d
139, 151 (CA7 1974), cert. denied, 421 U. S. 910 (1975).
Our precedents, to be sure, suggest that Congress enjoys broad
constitutional power to legislate in areas traditionally regulated
by the States-power that apparently extends even to the direct
regulation of the qualifications, tenure, and conduct of state
governmental officials. See,
e. g., Garcia v.
San Antonio
Metropolitan Transit Authority, 469 U. S. 528, 547-554
(1985). As we emphasized only last Term, however, concerns of
federalism require us to give a
narrow construction to
federal legislation in such sensitive areas unless
292
Congress' contrary intent is "unmistakably clear in the language
of the statute."
Gregory v.
Ashcroft, 501 U. S. 452, 460 (1991)
(internal quotation marks omitted). "This plain statement rule is
nothing more than an acknowledgment that the States retain
substantial sovereign powers under our constitutional scheme,
powers with which Congress does not readily interfere."
Id.,
at 461.
Gregory's teaching is straightforward: because we
"assume Congress does not exercise lightly" its extraordinary power
to regulate state officials,
id., at 460, we will construe
ambiguous statutory provisions in the least intrusive manner that
can reasonably be inferred from the statute,
id., at
467.
Gregory's rule represents nothing more than a
restate-
ment of established law:
"Congress has traditionally been reluctant to define as a
federal crime conduct readily denounced as criminal by the States
.... As this Court emphasized only last Term in Rewis v.
United States, [401 U. S. 808 (1971)a
case involving the Hobbs Act's counterpart, the Travel Act], we
will not be quick to assume that Congress has meant to effect a
significant change in the sensitive relation between federal and
state criminal jurisdiction. In traditionally sensitive areas, such
as legislation affecting the federal balance, the requirement of
clear statement assures that the legislature has in fact faced, and
intended to bring into issue, the critical matters involved in the
judicial decision." United States v. Bass, 404 U. S.,
at 349 (footnote omitted).
Similarly, in
McNally v.
United States, 483 U. S. 350 (1987)a
case closely analogous to this one-we rejected the Government's
contention that the federal mail fraud statute, 18 U. S. C. § 1341,
protected the citizenry's "intangible right" to good government,
and hence could be applied to all instances of state and local
corruption. Such an expansive reading of
293
the statute, we noted with disapproval, would "leav[e] its outer
boundaries ambiguous and involv[e] the Federal Government in
setting standards of disclosure and good government for local and
state officials."7 Cf. Baxter, Federal Dis-
7Prior to our decision in
McNally, the Government's
theory had been accepted by every Court of Appeals to consider the
issue. We did not consider that acceptance to cure the ambiguity we
perceived in the statutory language; we simply reiterated the
traditional learning that a federal criminal statute, particularly
as applied to state officials, must be construed narrowly. See 483
U. S., at 359-360. "If Congress desires to go further," we said,
"it must speak more clearly than it has."
Id., at 360.
The dissent in
McNally argued strenuously that the
Court's interpretation of the statute should be informed by the
majority view among the Courts of Appeals and Congress' subsequent
silence:
"Perhaps the most distressing aspect of the Court's action today
is its casual-almost summary-rejection of the accumulated wisdom of
the many distinguished federal judges who have thoughtfully
considered and correctly answered the question these cases present
.... I [can]not join a rejection of such a longstanding, consistent
interpretation of a federal statute. See
Commissioner of
Internal Revenue v.
Fink, 483 U. S. 89, 101 (1987)
(STEVENS, J., dissenting);
Citicorp Industrial Credit, Inc.
v.
Brock, 483
U. S. 27, 40 (1987) (STEVENS, J., dissenting);
Runyon v.
McCrary, 427
U. S. 160, 189 (1976) (STEVENS, J., concurring)."
Id.,
at 376377 (opinion of STEVENS, J.).
The interpretation given a statute by a majority of the Courts
of Appeals, of course, is due our most respectful consideration.
Ultimately, however, our attention must focus on the
reasons
given for that interpretation. Error is not cured by repetition,
and we do not discharge our duty simply by counting up the circuits
on either side of the split. Here, the minority position of the
Second and Ninth Circuits (both en banc) is far more thoughtfully
reasoned than the position of the majority of Circuits, which have
followed the Third Circuit's lead in
United States v.
Kenny, 462 F.2d
1205 (1972), "without setting forth a reasoned elaboration for
their conclusions."
United States v.
Cerilli,
603 F.2d
415, 427, and n. 5
(CA3 1979) (Aldisert, J.,
dissenting). Moreover, I reject the notion-as this Court has on
many occasionsthat Congress, through its silence, implicitly
ratifies judicial decisions. See,
e. g., Patterson v.
McLean Credit Union, 491 U. S. 164, 175, n. 1
(1989) ("It is impossible to assert with any degree of assurance
that congressional failure to act represents affirmative
congressional ap-
294
cretion in the Prosecution of Local Political Corruption, 10
Pepp. L. Rev. 321, 336-343 (1983).
The reader of today's opinion, however, will search in vain for
any consideration of the principles of federalism that animated
Gregory, Rewis, Bass, and
McNally. It is clear, of
course, that the Hobbs Act's proscription of extortion "under color
of official right" applies to all public officials, including those
at the state and local level. As our cases emphasize, however, even
when Congress has clearly decided to engage in
some
regulation of the state governmental officials, concerns of
federalism play a vital role in evaluating the
scope of the
regulation.8 The Court today mocks this jurisprudence by reading
two significant limitations (the textual requirement of
"inducement" and the common-law requirement of "under color of
office")
out of the Hobbs Act's definition of official
extortion.
proval" of judicial interpretation of a statute) (internal
quotation marks omitted).
I find it unfortunate that the arguments we rejected in
McNally today become the law of the land. See
ante,
at 268-269 ("Our conclusion is buttressed by the fact that so many
other courts that have considered the issue over the last 20 years
have interpreted the statute in the same way. Moreover, given the
number of appellate court decisions ... it is obvious that Congress
is aware of the prevailing view" and has ratified that view through
its silence).
8This case is, if anything, more compelling than
Gregory
v.
Ashcroft, 501 U. S. 452 (1991). In
both cases, Congress clearly chose to engage in some regulation of
state governmental officials. In
Gregory, however, that
regulation was sweeping on its face, and our task was to construe
an
exemption from that otherwise broad coverage. We decided
the case on the ground that the exemption must be
assumed to
include judges unless a contrary intent were manifest. "[I]n this
case we are not looking for a plain statement that judges are
excluded. We will not read the [statute] to cover state judges
unless Congress has made it clear that judges are
included
.... [I]t must be plain to anyone reading the Act that it
covers judges."
Id., at 467. Here, in contrast, our task is
to construe the primary scope of the Hobbs Act.
295
III
I have no doubt that today's opinion is motivated by noble aims.
Political corruption at any level of government is a serious evil,
and, from a policy perspective, perhaps one well suited for federal
law enforcement. But federal judges are not free to devise new
crimes to meet the occasion. Chief Justice Marshall's warning is as
timely today as ever: "It would be dangerous, indeed, to carry the
principle, that a case which is within the reason or mischief of a
statute, is within its provisions, so far as to punish a crime not
enumerated in the statute, because it is of equal atrocity, or of
kindred character, with those which are enumerated."
United
States v.
Wiltberger, 5 Wheat., at 96.
Whatever evils today's opinion may redress, in my view, pale
beside those it will engender. "Courts must resist thee] temptation
[to stretch criminal statutes] in the interest of the long-range
preservation of limited and even-handed government."
United
States v.
Mazzei, 521 F.2d
639, 656 (CA3 1975) (en bane) (Gibbons, J., dissenting). All
Americans, including public officials, are entitled to protection
from prosecutorial abuse. Cf.
Morrison v.
Olson,
487 U. S. 654,
727732 (1988) (SCALIA, J., dissenting). The facts of this case
suggest a depressing erosion of that protection.
Petitioner Evans was elected to the Board of Commissioners of
DeKalb County, Georgia, in 1982. He was no local tyrant-just one of
five part-time commissioners earning an annual salary of
approximately $16,000. The board's activities were entirely local,
including the quintessentially local activity of zoning property.
The United States does not suggest that there were any allegations
of corruption or malfeasance against Evans.
In early 1985, as part of an investigation into "allegations of
public corruption in the Atlanta area," a Federal Bureau of
Investigation agent, Clifford Cormany, Jr., set up a bogus firm,
"WDH Developers," and pretended to be a land developer. Cormany
sought and obtained a meeting with Evans.
296
From March 1985 until October 1987, a period of some
two
and a half years, Cormany or one of his associates held 33
conversations with Evans. Everyone of these contacts was initiated
by the agents. During these conversations, the agents repeatedly
requested Evans' assistance in securing a favorable zoning
decision, and repeatedly brought up the subject of campaign
contributions. Agent Cormany eventually contributed $8,000 to
Evans' reelection campaign, and Evans accepted the money. There is
no suggestion that he claimed an official entitlement to the
payment. Nonetheless, he was arrested and charged with Hobbs Act
extortion.
The Court is surely correct that there is sufficient evidence to
support the jury's verdict that Evans committed "extortion" under
the Court's expansive interpretation of the crime. But that
interpretation has no basis in the statute that Congress passed in
1946. If the Court makes up this version of the crime today, who is
to say what version it will make up tomorrow when confronted with
the next perceived rascal? Until now, the Justice Department, with
good reason, has been extremely cautious in advancing the theory
that official extortion contains no inducement requirement.
"Until the Supreme Court decides upon the validity of this type
of conviction, prosecutorial discretion should be used to
insure that any case which might reach that level of review is
worthy of federal prosecution. Such restraint would require that
only significant amounts of money and reasonably high levels of
office should be involved." See U. S. Dept. of Justice, United
States Attorneys' Manual § 9-131.180 (1984) (emphasis added).
Having detected no "[s]uch restraint" in this case, I certainly
have no reason to expect it in the future.
Our criminal justice system runs on the premise that prosecutors
will respect, and courts will enforce, the boundaries on criminal
conduct set by the legislature. Where, as here, those boundaries
are breached, it becomes impossible to tell where prosecutorial
discretion ends and prosecutorial abuse, or even discrimination,
begins. The potential for
297
abuse, of course, is particularly grave in the inherently
political context of public corruption prosecutions.
In my view, Evans is plainly innocent of extortion.9 With all
due respect, I am compelled to dissent.
9 Evans also was convicted of filing a false income tax return.
He now challenges that conviction on the ground that the jury was
given improper instructions. He did not, however, challenge those
instructions at trial or in the Court of Appeals. Thus, his current
challenge is not properly before this Court. See
Delta Air
Lines, Inc. v.
August, 450 U. S. 346, 362
(1981); Adickes v. S.
H. Kress &
Co.,
398 U. S. 144,
147, n. 2 (1970).
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