EVANS v. UNITED STATES
No. 90-6105
Supreme Court of the United States
Argued December 9, 1991—Decided May 26, 1992
504 U.S. 255
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,
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
“The defendant contends that the $8,000 he received from agent Cormany was a campaign contribution. The
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 (CA11 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).1
This statement of the law by the Court of Appeals for the Eleventh Circuit is consistent with holdings in eight other
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-
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
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,
“(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, which amended the federal Anti-Racketeering Act.9 In crafting the 1934 Act, Congress was
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.11 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 Cong. 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 broader12 than the common-law definition of extortion because it encompasses conduct by a private individual as well as conduct
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 Cong. Rec. 3227 (1943) (statement of Rep. Hobbs); see 91 Cong. 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-
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
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-
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,
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
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, 488-489 (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 collected—both 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
The judgment is affirmed.
It is so ordered.
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
With regard to the question whether the word “induced” in the statutory definition of extortion applies to the phrase “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
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
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
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 common-law 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.
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 common-law 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
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,
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
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).1 Thus, although the Court purports to
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
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
Because the Court misapprehends the “color of office” requirement, the crime it describes today is not the common-law crime that Congress presumably incorporated into the Hobbs Act. The explanation for this error is clear. The
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
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
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
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.
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.”
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
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.”
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 (3d Cir. 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-
“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 banc) (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 (CA10 1976), down to a local policeman, see United States v. Braasch, 505 F. 2d 139, 151 (CA7 1974).
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
Gregory‘s rule represents nothing more than a restatement 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. 336, 349 (1971) (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,
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.
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 th[e] 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 banc) (Gibbons, J., dissenting). All Americans, including public officials, are entitled to protection from prosecutorial abuse. Cf. Morrison v. Olson, 487 U. S. 654, 727-732 (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.
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
In my view, Evans is plainly innocent of extortion.9 With all due respect, I am compelled to dissent.
Notes
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
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”
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.
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 376-377 (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 occasions—that 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-
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).