*1 McCORMICK v. STATES UNITED 23, Argued January May No. 89-1918. 1991 Decided *2 White, Rehnquist, J., Court, opinion delivered the which MARSHALL,Scalia, Kennedy, SouteR, J., C. and JJ., joined. Scalia, Stevens, J., concurring opinion, J., filed a post, p. 276. filed a O’ConnoR, JJ., in which Blackmun dissenting opinion, post, joined, p. 280. L. Di
Rudolph Trapano the cause for argued petitioner. briefs was Rebecca A. Baitty. him on the With J. Christopher Wright argued the cause for the United
States. himWith Starr, were Solicitor General on the brief Assistant Mueller, General Attorney Solicitor Deputy Gen- eral and Richard Bryson, A. Friedman. *3 delivered the opinion of the Court.
Justice White This case us to requires consider whether the Court of Appeals properly affirmed the conviction of petitioner, elected public official, for extorting property under color of in violation of right Act, § the Hobbs 18 U. S. C. 1951. We also must address the affirmance of convic- petitioner’s tion for a false filing income tax return.
h-4 Petitioner Robert L. McCormick was a member of the West Virginia House of in Delegates 1984. He represented a district that had suffered from a long of medical shortage doctors. For several West years, had allowed Virginia for- medical school eign graduates under practice temporary permits while for the studying state exams. licensing Under some program, doctors were allowed to under practice even temporary permits years though they repeatedly failed the state exams. McCormick was a advocate leading of this supporter program.
In the early 1980’s, a move in the following House of Dele- to end the gates temporary permit several of the program, temporarily licensed doctors formed an organization press their interests Charleston. The hired a organization lob- John byist, who 1984 worked for Vandergrift, legislation temporary per- expiration date of extend the that would sponsored program. the House version of mit McCormick extending legislation, passed proposed and a bill was Shortly Vandergrift year. program thereafter, for another introducing possibility legis- and McCormick discussed grant during that would the doctors lation permanent the 1985session years experi- virtue their medical license agreed sponsor legislation. such ence. McCormick campaign, During 1984reelection McCormickinformed expensive, Vandergrift he had that his was paid pocket, that he had out of his own considerable sums foreign anything Tr. from the doctors. 167-168. not heard Vandergrift he contact the doc- told that would McCormick Vandergrift Id., he could do. at 168. tors and see what foreign later received from one of the doctors and contacted Vandergrift delivered an enve- $1,200 doctors cash. containing lope nine to McCormick. Later the bills $100 day, delivery $2,000 cash made same a second During fall of McCormick received McCormick. payments from the doctors. McCormick did two more cash contributions,1 of these not list report his 1984 federal did he as income on nor organization although tax return. And the doctors’ income kept *4 payments expenditures, of its the cash detailed books Rather, contributions. en- were not listed as only accompanied payments initials or tries for the signifying other was McCormick. codes sponsored legislation spring In of McCormick permitting experienced permanently doctors to be licensed passing licensing exams. McCormick without state during spoke length debate, floor in favor of the bill at ultimately into law. Two weeks after the bill was enacted legislation another enacted, McCormick received was foreign payment doctors. cash from the Virginia prohibits cash contributions excess 1West law (1990). per $50 §3-8-5d Va. person. W. Code Following investigation, grand jury a federal returned charging an indictment McCormickwith five counts of violat- ing by extorting payments Act',2 the Hobbs under color of right, filing official and with one count a false income tax §7206(1),3by failing return in violation of 26 U. S. C. report as income cash he received from the for- eign 6-day doctors. At the close of a in- trial, structed that to establish a Act Hobbs violation Govern- prove ment had to induced a cash McCormick knowingly willfully by and that he did so extortion. As margin, set in the the court out defined “extortion” and other proof required respect terms and elaborated on the the extortion counts.4 §1951, Act, provides part
2The Hobbs 18 U. S. C. in relevant as follows: “(a) obstructs, any way delays, degree Whoever or or affects com- by robbery merce ... or extortion ... in violation of this section shall be $10,000 imprisoned twenty years, fined not more than than not more both. “(b) in this As used section—
“(2) another, obtaining property The term ‘extortion’ means the from consent, force, by wrongful with his induced use of actual or threatened violence, fear, right.” or under color of official provides § part 7206 of the Internal Revenue Code that: Section
“Any person who—
“(1) Willfully . . . . . . makes and subscribes return which contains penalties or is verified a written declaration that it is made under the perjury, every and which he does not believe true and correct to be as to guilty felony . . . . . .” material matter . shall be of a following portions discussing 4The are the relevant of the instructions charges: the extortion
“Now, a definition of some of the terms used. another, obtaining property
“Extortion means the from with his con- sent, wrongful either induced use of fear or induced under color of right. ‘wrongful’ obtaining property unfairly “The term and un- means justly by having one no lawful claim thereto. *5 inducement, prove that the in- “As to the United States must defendant person persons part prop- duced the or described in the indictment to with day it “would informed the court the The next emphasis again particular with like hear the instructions right of official under the color of extortion on the definition charged It that the defendant did money. is erty, includes a term which right. so of official under color beyond government prove element, enough it that the is proving “In this something significant transferred the benefactor doubt that reasonable expectation money, public officialwith the value, alleged here to be him some or refrain from extend to benefit official would public money knowing it action, public accepted official and the some harmful expectation by the benefactor to him with being transferred was his office. because of persons person or de- determining the defendant induced a whether “In alleged part property with at the time of in the indictment scribed two, as occurring you’ll as recall on June in one and events counts you it in some of the if believe as set forth alleged the indictment and in circum- adduced, surrounding you may into account all take evidence defendant, any, if stances, by actions of the including spoken word determining whether de- in therewith. prior connection thereto part persons the indictment person described fendant induced three, four, five, you may take into in counts property alleged with circumstances, including any of conduct surrounding course account all defendant, any, which bear thereon. if part of the demand, or in a more so, can be in the overt form a inducement “And expectation might been such as have commu- as custom or subtle form such office, any. prior of his if the defendant’s conduct by the nature of nicated government charged has case the right, of official to color “As right, in that the defendant under color of official was committed extortion as a member of committing extortion virtue of office charged Delegates. Virginia House of the West obtaining money by a right official means the under color of “Extortion lawfully owing to was not due and public when obtained official office. him or to his proof specific right require does not color of official “Extortion under threats, force, demonstrating or the use of fear so acts position of the office or held consented because long as the victim official. alleged “Where, here, charges that the extortion the indictment government prove that right, the need not of official committed under color was, extortion, doctors, here the unlicensed alleged victim made, fact, question at the time the in a state of fear *6 regards moneys portion law as and on the of received that reported App. does not have to be as income.” 27. The court then reread most of the extortion instructions to the may been, is, although they you have the evidence indicate to conceivably ease, that, course, particular that that is the but of is not of moment. right public
“Extortion under color of official is committed whenever a wrongful money officer makes use of his office to obtain him not due to public which, itself, his office. It is the official’s misuse of his office supplies proof necessary Therefore, of the element coercion. wrongful power of official accompanied by use need not be actual or threat- violence, force, ened or fear. public
“If knows the motivation of the victim to make payment public office, money focuses on the official’s is obtained public lawfully owing officialwhich was not due and himto or the officehe represented, satisfy government’s that is sufficient to burden of show- ing a misuse of office and right. extortion under color of official The mere voluntary payment money, however, does not constitute extortion.
“Finally, prove to right, government extortion under color of official actually possessed need not establish that the defendant authority over the passage legislation question. Similarly, need not directly ultimately public have been made official. It is sufficient if the evidence shows that the money victim was induced to deliver to someone as a result of the defendant’s office. years
“There has been evidence in this case for some before as session, well during legislative the 1984 and 1985 the defendant was a leading supporter legislation permit foreign graduates medical school who did all licensing requirements practice not meet the medical areas Virginia physicians. of West that needed itself, illegal,
“It would not be in and of for the defendant to solicit or accept political foreign contributions from doctors who would benefit from legislation. guilty extortion, you
“In order to find Mr. McCormick must first be beyond payment convinced a reasonable doubt that the alleged given in a in the indictment count was made or on behalf of the doctors with the expectation that such would influence Mr. McCormick’s official conduct, knowledge part and with the on the of Mr. they McCormick that paid expectation by him with that virtue of the office he held. itself, illegal,
“It is not and of legislator elected solicit accept contributions, legitimate campaign on behalf of himself or other legislators, special pending legisla- from individuals who have a interest paragraphs fol-
jury, made the but reordered some lowing significant addition: right means the of official ob- under color
“Extortion taining money by official when the *7 the federal violates receipt or such contributions tion. The solicitation under color of only payment wrongfully is induced law when the extortion right. official legitimate political from indi-
“Many contributions public officialsreceive who, knows, general gratitude a to- official are motivated viduals them, important to on certain issues or position his ward because of him contributions will good generated will such hope even in the that the receptive to their cause. make the official more receipt political contributions is not or of such “The mere solicitation illegal. prove case that the de- necessary government in this that the “It is granted some benefit public the sense that he misused his office
fendant doctors, who person persons, here the unlicensed advantage to may got- money. Though doctors have the unlicensed allegedly paid him performance of in the defendant’s ten than their due no more occurred, money, you duties, receipt of if find that to have the defendant’s public a offi- performance is a misuse of office. When of such acts for the treatment, fair if payment implicit promise of accepts the for an cial pay- were, is an threat that without promise there inherent such there in an adverse man- ment, exercise his discretion public official would same public actions would have been the A that a official’s ner. claim is, purpose, irrel- alleged not he received the whether or through charges in counts one five contained evant and is no defense to of the indictment. prove the defendant necessary government that it that “So is not is, quid pro consideration promised quo, to commit a
committed or not law- in return for the the nature of officialaction may, course, forthcoming in an ex- pro be fully quid quo a owed. Such it not an element of may it In either event is essential tortion case or not. the crime. necessary prove specifically in- that the defendant it is not “While necessary commerce, it as to this is interfere with interstate tended to consequences of the acts prove that the natural government issue delay, interrupt, adversely affect be to in the indictment would alleged activi- commerce, the flow of commerce or business which means interstate or more states. ties between two enough satisfy this element.” effect on commerce
“Potential future 17-22. App. lawfully owing
obtained was not him or to his due course, office. Of extortion does not occur where one legitimate gift who is a officialreceives or a vol- untary political political though even contribution contribution have made in in violation been cash Voluntary given freely local is that which is law. with- expectation Id., out of benefit.” at 30. noting respect political
It is also worth con- paragraphs supplemental last two in- tributions, the structions on extortion counts were as follows: illegal, “It not be in and of Mr. itself, would for McCor- accept political mick to solicit or contributions from for- eign legislation. who doctors would benefit from this guilty
“In to find Mr. McCormick extortion, order you beyond must convinced doubt reasonable *8 alleged payment given the a count of the indictment expec- or on of the was made behalf doctors with the payment such would Mr. tation that influence McCor- knowledge part conduct, mick’s official and with on the they paid that him Mr. McCormick with that expectation Id., the virtue of office he held.” at 33-34. jury
The
convicted McCormick of the first
Act
Hobbs
count
receiving
payment)
(charging him with
the initial
cash
$900
and the income tax violation but could not reach verdicts on
remaining
four Hobbs Act counts. The District Court
a mistrial on those
counts.
declared
four
Appeals
observing
affirmed,
The Court
that nonelected
proof
officials
be convicted under
Hobbs Act without
they
granted
grant
agreed
have
or
some benefit or ad-
vantage
exchange money paid
for
to them and that elected
they
officials
be held to the same standard when
re-
should
money
“legitimate” campaign
ceive
than
other
contributions.
(CA4 1990).
stating
After
jected elected of an contention conviction McCormick’s proof requires, circumstances, under all Act under the official promise pro quo, quid officialaction inaction i. e., of a property exchange received, id., at for requir- interpreted statute as not court 66. Rather, showing parties ing never intended where the such a “legitimate” campaign contributions. Ibid. to be making listing to be considered seven factors After canvassing evidence, the court the record determination concluded: find a reasonable could facts, these
“Under money extorting the doctors for his from was McCormick legislation. support Further, the of the 1985 continued supports the conclusion that evidence by any parties of the to be never intended jury’s we reverse Therefore, contribution. refuse to violating against Act.” the Hobbs verdict McCormick at Id., 67. Appeals tax affirmed income also
The Court conviction. regard- disagreement Appeals in the Courts of
Because of right” ing meaning phrase “under color granted Act,5 in the Hobbs certiorari. as it is used we 1970’s, early prosecutions under the Hobbs Act extortion Until property of the transferor of had allegations that the consent rested force, violence, wrongful threatened use of actual or been “induced *9 fear”; of prosecuted under the “color official public officials had been the conviction involved in phrase standing Beginning alone. with right” (CA3 however, 1972), Kenny, 462 2d 1205 federal v. F. United States disjunc that because of the accepted the Government’s submission courts §1951(b)(2), force, violence, or fear were not allegations of language of tive of proof obtaining property under claims official necessary. Only of the of Furthermore, con every Appeals of to have right necessary. Court was public require showing that the offi phrase that it did not a held strued act such as a de payor’s consent some affirmative cial “induced” the language difference Although there was some or solicitation. mand required no more right” official element holdings, the “color of of these
267 (1990). 807 remand 498 U. S. We reverse and for further proceedings. proof payee’s acceptance knowing
than was made 1984, purpose influencing however, In for of his official actions. Appeals Circuit, banc, of for held that Court the Second en some affirma- prove act of tive inducement the officialhad to to be shown Govern- (1984). 1988, ment’s case. v. 682 O’Grady, United 742 F. 2d States banc, Circuit, agreed Circuit, Ninth en overruling the Second prior majority Aguon, decision v. expressing the rule. States United 851 (1988). 2d 1158 unimpressed F. Other courts have been with the view ex See, Evans, pressed O’Grady Aguon. g., e. States v. United 910 F. (CA11 790, 1990), 90-6105; 796-797 pending, 2d cert. No. United v. States (CA4 1267, 1986); Paschall, Spitler, 800 F. 2d v. 1274 United States 772 F. (CA4 1985). 68, 71 2d clear, The conflict on is is not the this issue but this case occasion to re- proof it. The solve trial court instructed that of inducement was essential ease, to Government’s but requirement stated that the could be satis- by showing money by receipt knowing fied McCormick that it was proffered expectation office, with the of benefit proof and on account of his inadequate O’Grady that would be under the view inducement. McCor- challenge did not Ap- mick this instruction in the trial court or the Court of peals; nor does he here. however, address, do proof necessary
We
the issue of what
is
to show
receipt
of a
contribution
elected
is violative
Appeals
court
of the Hobbs Act. The trial
and the Court
were of the
that,
unnecessary
prove
exchange
that it was
to
for a
view
contribution,
promised
specifically
perform
perform
the official
or not to
Appeals,
reading
an act incident to his
The Court of
based on its
office.
(CA2 1975),
Trotta,
States v.
II affirming judgment challenge the below to McCormick’s rejection Appeals’ to the of of his is limited Court conviction payments to him or on behalf of ihade claim that the receipt did of which contributions, doctors were Except for a belated claim not Act. not violate Hobbs challenge any properly does not rul- McCormick us,6 béfore respect application ings to the of the courts below with of payments or to made to nonelected officials Hobbs Act to properly are deter- elected officials that made to Hence, we do not contributions. mined not phrase right” is to be “under color official consider how the and, indicates, opinion it Act violation as our evidence established a Hobbs its in this the Government has met burden “perfectly far from clear” that regard. 6 Court, argued has briefing the merits in this McCormick apply corruption involving offi Act local was never intended Hobbs in official has not acted under color official that event an cials and falsely represents legal virtue of his office he has a he right unless property arguments he receives. These were not right to the They ques expressly among the presented courts below. are not only arguably are sub presented petition for certiorari and tions presented. language questions Nor view of the sumed many approving Act cases the conviction local officials Hobbs and the plain it error occurred the lower courts for under the Act can be said that recognize inapplicable charges Act to the extortion was failure false-pretenses argument, As United brought against McCormick. (CA8 Mazzei, 1980); French, 2d 1069 United States v. 521 v. 628 F. States (CA3 1975)(en banc); Price, 1349, F. United v. 507 2d 1350 F. 2d 639 States 1974) curiam); (CA4 Braasch, F. (per States v. 505 2d United (CA7 1974), rejected many the claim and other convictions 150-151 have misrepresentation plain there no affirmed where it is have been phrase origin In view cases and the “under legal right. of these Lindgren, The Elusive Distinction Between right,” see color of Act, Bribery From the Common Law to the Hobbs and Extortion: (1988), failing plain occurred below to inter L. Rev. 815 no error UCLA phrase argues. Accordingly, the submission does pret as McCormick untimely, and we do not it fur comply with our rules and is address (1984). 420, 443, McCarty, v. 468 U. and n. Berkemer S. ther. *11 interpreted applied respects, in and contexts. two those agree Ap- however, we with that the Court of McCormick peals erred.
A quite Appeals are sure the First, we that Court affirmed legal grounds the conviction on and that were factual never jury. Although challenged submitted to the adequacy McCormick the jury distinguish of the instructions to between cam- paign payments illegal contributions and that are under the opinion Appeals’ Hobbs the Court of Act, did not examine or given mention the instructions the trial court. The court neither dealt with McCormick’ssubmission that the instruc- adequate confusing give guidance tions were too jury, specifically, argument although the nor, more jury voluntary campaign the was instructed that contribu- Act, tions the were not vulnerable under Hobbs the word “voluntary” places during used “in several course of App. instructions,” these 30, was defined as “that which is freely given expectation without of benefit.” Ibid. Neither Appeals jury did the Court note was not in- holding in structed accordance with the court’s that the dif- legitimate illegitimate campaign ference between and con- tributions was to be determined parties the intention of the considering specified after Instead, factors.7 announcing Appeals, Court after rule of law for deter- mining payments right, when are made under color of official 7 be in making “Some of the circumstances that should considered (1) include, to, money determination but are not limited whether was (2) contribution, payor campaign money recorded as a whether (3) reported by contribution, was recorded as a and (4) cash, payment whether the was whether it was delivered the offi (5) personally campaign, cial to his whether the official acted his offi capacity cial near payor at or the time of the for the benefit of the (6) supported payor, legislation would benefit whether the offi supported legislation payment, cial had similar before time of the (7) directly indirectly payor whether the official had solicited individ (1990). 61, ually payment.” for the 896 F. 2d 66 support the record sufficient evidence went on to find extorting findings from the doc- that McCormick legislation, support fur- of the 1985 continued tors for his parties never intended ther that the contribution. saying goes of intent are for the It that matters without States, U. S. v. United to consider. Cheek (1991). plain factors that that each of the seven It is also thought Appeals considered determin- should be Court *12 parties’ presents ing historical fact. an issue of the intent Appeals assuming on was correct Thus the Court even that not have been affirmed on law, the conviction should trial set aside and a new ordered. but should have been basis (1946); 613-614 States, 607, 326 U. S. Bollenbach v. United (1948). Kotte 196, 201-202 Cf. Arkansas, v. 333 U. S. Cole (1946); States, 763 Cabana 750, akos 328 U. S. v. United (1986); Carpenters v. 376, 474 U. 384 United Bullock, v. S. (1947). 395, reason, If for no other States, 330 U. S. 408 Appeals judgment must be re therefore, the of the Court proceedings.8 for further case remanded versed and the 8 recognize to that the Court of apparently refuses Justice Stevens legal factual theories Appeals affirmed conviction on and McCormick’s alone, above, jury. indicated for that reason and never tried As before errors, judgment Appeals’ dealing with the Court other without erroneously suggests, post, at see must be reversed. Justice Stevens 289, 4, posture of this is no different than the procedural case n. Fulminante, (1991), a case in which v. U. S. posture Arizona rejected judgment though it court’s even the Court affirmed lower attempts to draw reasoning. analogy The Justice Stevens lower court’s point that in a case a defendant is misses the criminal inapt because it liability of criminal determined constitutionally entitled to have the issue Fulminante, reversed the de- by jury instance. the Court a the first conviction; impose liability theory differ- it criminal fendant’s did not Supreme This has upon the Arizona Court. Court that relied ent from appellate right trial is satisfied when court held that the never and on a different the- appeal under different instructions retries a case on Appellate permit- presented jury. courts are not ory than was ever B agree Appeals that in We with the Court of a case like this inquire proper payments it is whether made to an elected campaign agree in fact contributions, are and we parties pur- is a intention relevant consideration suing inquiry. accept Ap- we But cannot Court peals’ approach distinguishing legal illegal between campaign Appeals The contributions. Court stated that payments to elected officials could violate the Hobbs Act proof quid explicit pro quo proving without of an that the legitimate campaign “were never intended to be added).9 (emphasis 2d, contributions.” 896 F. at 66 This Appeals’ opinion, actually read Court issue, as we inquiries; applying involved two after the factors the Appeals relevant, Court of it considered arrived at two con- money extorting first, clusions: McCormick was for his support legislation “[fjurther,” continued of the 1985 parties id., at never intended to be a contribution at The conclusion, all. first especially light when considered of the second, asserts illegitimate, *13 contributions were extortion- payments. ate theory they please simply
ted to affirm convictions on because the facts necessary support theory presented jury. to were 9The record shows that did ask for an McCormick not instruction to the proof explicit quid pro quo effect that of an necessary to convict an extorting elected officialunder the Act for a campaign Hobbs contribution. Indeed, point at one McCormick’s counsel stated there was no such Furthermore, requirement. Tr. 1067. paragraphs the last two of the 33-34, supplemental extortion, App. instructions on were almost identical Requested 11-A, Record, to McCormick’s Instruction No. which fell requiring promise short of perform conviction to an act in official re however, turn for a Appeals, contribution. the Court of Mc argued that undertaking by Cormick such an the official was essential. Appeals and, The Court of chose address the submission as we under it, rejected fairly stand it. questions pre The issue is subsumed argued Hence, sented here and is in the briefs. we reach and decide the question. necessarily the factors that
This conclusion was based on possi- considered, the first four of which could not the court they bly amount to extortion. Neither could themselves telling factors, the last three more when considered with namely, capacity in his official at or officialacted whether the payor; payment for of the the benefit near time legislation supported before the time the officialhad whether directly payment; and whether officialhad indi- individually payor payment. rectly for the solicited assuming inqui- that the result each these seven Even very likely they McCormick, ries was unfavorable agree Appeals’ view, cannot that a viola- in the Court of we Ap- out, Hobbs Act would be made as the Court tion of the peals’ first conclusion asserted. supporting legislation
Serving constituents and will groups is district and individuals and therein benefit the everyday legislator. is of a It also true that cam- business Money constantly being paigns and financed. is must be run platforms candidates, run on on behalf of who solicited they support claim basis their views and what who Whatever ethical intend do have done. considerations legislators appearances indicate, to hold that commit they federal crime of extortion when act for the benefit of support legislation furthering interests of constituents shortly after constituents, of their before or some are solicited and received from those beneficia- contributions Congress unrealistic of what could ries, assessment by making property it a crime to obtain from an- have meant right.” To other, consent, “under color open prosecution only conduct hold otherwise would thought long that has been to well within law but also *14 very long a real sense is unavoidable so conduct campaigns by private are financed election contributions or they beginning expenditures, as been from have explicit require statutory language It would more Nation. contrary justify than the Act a Hobbs contains to conclusion. (1973). Cf. v. Enmons, 396, United States 410 U. S. say impossible This is not that it is for an elected official financing to commit extortion in of the course an election campaign. Political if contributions are course vulnerable receipt force, induced the use of violence, fear. The having such contributions is also under vulnerable the Act as right, only pay- taken been under color of official if but explicit promise are ments made return for an or undertak- ing perform perform the officialto or not to an officialact. In such situations the officialasserts that his officialconduct promise undertaking. will be controlled terms of the receipt money by is This an elected officialunder color right meaning of official within the of the Hobbs Act. This formulation defines forbidden zone of conduct with clarity. Appeals sufficient As the Court of for the Fifth Cir- cuit observed in United (1982): Dozier, States v. 672 F. 2d distinguish,
“A moment’s reflection should enable one to legitimate abstract, at least in solicitation from the injury exaction of a fee for a benefit conferred or an with- familiarly payoff held. Whether described as a or with precision quid pro quo, prohibited the Latinate exchange same: not demand (or promise perform for as inducement perform) not to an officialact.” agrees The United that if the States to McCor- proof quid pro quo contributions, mick were of a would be essential for conviction, an extortion Brief quotes given 29-30, United States the instruction on this Department subject in 9 §9-85A.306, Justice Manual 1988-2): p. (Supp. “[Cjampaign 9-1938.134 will contributions subject prosecution authorized as of a Act be Hobbs they proven given in to have unless can been return for performance abstaining act; from official other- might wise constitute a contribution violation.” *15 274 holding Appeals’ disagree in this the Court thus with
We necessary quid pro quo for conviction under is not that a case campaign a contribu- officialreceives the Hobbs Act when an urges, By hold, we as McCormick token, same tion.10 to the same effect was Court’s instruction that the District error.11
III properly in- that a nevertheless insists The Government payment jury at issue case found in this structed at all and that the evidence contribution was not a given finding. amply supports here are The instructions this clarity, in- it is true that the trial court not a model voluntary receipt campaign contributions structed that the a Act. But under the instructions not violate the Hobbs did expecta- “voluntary” given any if with not contribution was instructions, taken as a we read the benefit; and as tion guilty jury that it could find McCormick was told whole, though campaign payments, if of the even of extortion expectation by the with the contribution, was made doctors for their officialaction would be influenced that McCormick’s payment was made if knew that benefit and McCormick jury expectation. It be that found with that campaign contribution, but it is was a none speculation jury rather convicted on this basis mere though impermissible that even the first basis than on the receipt payment it contribution, McCormick’s was such a of the Hobbs Act. was violation conviction on The United submits McCormick’s States plainly the first shows that the found that tax count 268-269, at McCormick’s sole conten previously, supra, see As noted campaign contribu payments made to him were tion in ease is that the Therefore, pro quo requirement quid whether a we do decide tions. contexts, gifts, when such as an elected receives other exists meals, expenses, other items of value. travel holding, supra, conflict n. we do not resolve the mentioned so necessity respect proving inducement. Again, not a contribution. we dis agree, jury, for the instruction on tax count told *16 among things, money other that if the McCormick received voluntary political “constituted ... contributions it was . . . App. added), (emphasis income,” not taxable and failure to report illegal. jury it was not The must have understood “voluntary” to mean what the court had said it meant, e., i. freely given expectation “that which is without of benefit.” jury might pay Id., at The 30. well have found that the campaign voluntary ments were contributions but not be . they given expectation They were an cause with benefit might although they fact, have inferred from this were not payments so, to do instructed though that the were taxable even they jury were Furthermore, contributions. was if instructed that it found that McCormick did not use the money campaign expenses for or to reimburse himself for expenses, payments given such then the him the doctors jury income even taxable found that the doctors if payments campaign intended the contributions. See Contrary id., at 24-26, 36-37. Government’s conten jury required tion, no therefore, means was the to deter payments mine that the from the doctors to McCormickwere campaign not contributions before it could convict on the tax The count. extortion conviction cannot be saved on this theory.
IV Appeals The Court of affirmed McCormick’sconviction for filing ground jury’s finding on false return the sole that the that McCormick violated the Hobbs Act “under these facts implicitly rejected attempts indicates that it to character- campaign ize at least initial as a contribution.” repeats F. at This 2d, 67. conclusion the error made in affirming Appeals the extortion conviction. The Court of did light given not examine the record in of the instructions charge on the extortion but considered the evidence in light pay- own it its standard under which found that the campaign contributions. Had the court fo-
ments were actually given it trial, at would have cused the instructions on jury could have convicted McCormick been obvious pay- charge though it was convinced that the of the tax even was also contributions but convinced ments were knowing given that it was that the was received expectation hence extorted. The ex- benefit not demonstrate tortion conviction does contributions hence taxable. were not Appeals erred af- the fact that Court course, Of relying firming and erred on that the extortion conviction affirming necessarily the tax conviction does not conviction grounds affirming possible the tax count. exhaust Appeals did not consider verdict on that But the Court of *17 light then in of the instructions thereon and decide count conviction, of the Hobbs Act McCor- whether, the absence filing properly for a false income tax mick convicted re- option open remand. That will be turn.
y judgment Ap- Accordingly, of the Court of we reverse proceedings peals for further consistent remand the case and opinion. with this
So ordered. Scalia, concurring. Justice given assump- agree and,
I with the Court’s conclusion argued, and with the on which this case was briefed rea- tion prohibition assigns. If the of the Act, the Court Hobbs sons § against receipt 1951, “under color of 18 U. S. C. receipt money private right” from a source includes ambiguously performance official duties, de- for the assuredly not, need for crime and the reasons scribed interpreted campaign not, be cover discusses should Court anticipation action, with of favorable future as contributions exchange explicit opposed contributions promise future action. of favorable unsettling, I however, find it unusual and to make such a any justification statutory in the distinction without hint of a § text: 1951contains even a colorable allusion quid doubly pro quos. unsettling I find it contributions or § contrary interpretation another 1951, because there is assumption argument been the here, one that has unnecessary. I would render the distinction While do not justified adopting interpretation briefing feel without argument, giving ap- neither I do feel comfortable tacit proval assumption write, that contradicts it. I there- concerning text of fore, few words this statute and the history produced assumption that has the unexamined under- lying opinion. our 1951(a)provides: way any degree
Section “Whoever or delays, or obstructs, affects commerce or the movement of commodity by robbery in commerce, article or or extor- imprisoned $10,000 tion . . . shall fined not than more 1951(b)(2) twenty years, not more than or both.” Section obtaining property defines “extortion” as “the from an- by wrongful other, consent, of actual induced use force, violence, fear, threatened or under color of official right.” provisions part The relevant were enacted Anti-Racketeering Act of 979, Stat. car- change ried in the Hobbs of 1948. forward without Act For *18 years no enactment, more than 30 after there is indication they applied alleged to the sort of conduct here. prosecutors in When, 1960’s, it first occurred to federal essentially Act use the Hobbs to reach what was the solic- iting unimpressed officials, of bribes state courts were They thought public with the notion. officialswere not guilty accepted, they they of when when extortion even requested, voluntary payments designed pro- to influence or Hyde, cure action. their official United States v. 448 F. 2d 1971) (CA5 (“The bribery 815, 833 from distinction is there- part and fore . . . the fear lack of voluntariness on the of 278 Addonizio, States v. 49, United 2d 451 F. 72 victim”); 1971) (“[W]hile
(CA3 of is voluntari- bribery the essence States United v. duress”); is extortion the essence of ness, 1965) (same). Kubacki, (ED Pa. Not 638, 641 237 F. Supp. bribery. Act to See the Hobbs until 1972 did court apply Kenny, 1972) (CA3 United States F. 1229 1205, 462 2d v. officials es- (“kickbacks” contractors construction despite of ab- “under color official right,” extortion tablished duress”). That was soon fear, holding “threat, of sence Braasch, United States v. Seventh Circuit followed long which as the (1974), “[s]o said that 139, 505 F. 2d office, on the recipient’s focuses motivation for the payment § of 18 S. C. 1951.” the ambit U. the conduct falls within Kenny, Braasch, were debated and cases subsequent While Ruff, Federal Prosecution of compare in academic writing, En- of Law Study Making A in the Case Corruption: Local (1977) (criticizing L. J. 1171 65 Geo. Policy, forcement Kenny), Elusive Distinction between The Lindgren, with From the Law to Hobbs Extortion: Common Bribery Kenny), (1988) (defending L. Rev. 815 Act, 35 UCLA little dis- expansion accepted Courts Appeals Harding, g., e. States v. United 563 F. 2d see, agreement, Hathaway, 1977); United States (CA6 534 F. v. 299, 302-303 Hall, States v. (CA1 United 313, 536 F. 2d 1976); 386, 2d Cerilli, States v. United F. (CA10 see 1976); but 320-321 (CA3 1979) (Aldisert, J., dissenting), 2d 426-437 matter. to consider the never had occasion Court has color of of- that “under assumption It acceptance is office” that brings “on account one’s means right” ficial and that creates the reach, within statute’s cases bribery dis- textually reasonable but inexplicable for the necessity assumption ques- That today. Court makes tinction the . . . under color of- “The obtaining property tionable. right” assertion naturally connotes some false ficial more official entitlement interpretation This property. *19 § have the effect of might the 1951 definition of making extor- tion with the definition of comport “extortion” at common law. One writer, treatise “extortion describing by a public “At officer,” states: common law it was essential or money be obtained under color of property office, that is, under the pretense the officer was entitled thereto by virtue of his office. The thing received must have been claimed or office, and accepted right the person must have paying to official yielded authority.” 3 R. Ander- son, (1957). Wharton’s Criminal Law and Procedure 790-791
It also to be the appears case that under law, New York which has long contained identical “under color of official right” which the language upon Hobbs Act is said to have been based, Ruff, see at supra, 1183, bribery extortion An separate offenses. charged extortion could defend on the ground voluntary and thus he was guilty only Feld, bribery. People v. N. Y. 2d 796, S. 797 (Sup. 1941); Ct. see v. Dio People 1960). 8 N. Y. guardi, 2d 273-274 260, Div. I (App. am aware of one only Act New York pre-Hobbs in- prosecution volving extortion “under color of official right,” and there the defendant, a justice had' extracted a peace, pay- ment from a on the false litigant ground that it was due him as a court fee. v. People Whaley, Cow. 661-663 (N. 1827). Y. where the
Finally, United States Code explicitly crimi nalizes conduct such as that in the alleged present case, it calls the crime not bribery, extortion —and like all bribery (but I laws am aware § unlike 1951 and all other extortion of) I laws am aware it punishes only receiv person ing payment but the it. person making See 18 U. S. C. §201(b) officials).* of and (criminalizing bribery by federal 201(b)(2) prescribes penalties anyone
*Section who “being person public official, official or directly selected to be a indirectly, demands, seeks, receives, corruptly accepts, agrees to re-
280 § (criminalizing extortion federal offi- 18 U. S. C.
Cf. punishment person provision making of ex- no for cials, torted). subject though official, not a is McCormick, federal bribery prosecution Act, Travel under the for to federal § of interstate com- the use 1952,which criminalizes U. S. C. bribery purposes reaches, course, of both of merce for —and person receiving person giving the bribe. and argument, only it, not to decide for to raise this I mean persuasive re- and there be has been advanced it not Lindgren, (arguing g., supra, sponses. at 837-889 See, e. bribery early law and extortion were not common that under require proof separate extortion did not of offenses and that assumptions payment). have a But unexamined a coerced usage, becoming, by way of Before we force unsound law. making go down the road of reasonable asked to further are “payment textually unapparent in a federal distinctions but unquestionably will be statute —as we for official action” in ante, n. 5—1 think it bear mind asked, see at well to may not exist. that the statute Stevens, with whom Justice Blackmun
Justice join, dissenting. Justice O’Connor judge’s jury An in a trial instructions error pre- ground made, unless the defendant has for reversal objection particular specific in instruction served, question. of the Federal Rules of Criminal Proce- Rule 30 provides, part: dure personally any person or accept anything of value or for other en-
ceive tity, in return for: “(A) act; performance any being influenced “(B) in, committing, being to commit or aid or to collude influenced allow, fraud, any opportunity for the commission of fraud on any or make States; or the United “(C) to do act in violation of the official being induced to do or omit duty person.” official or such 201(b)(1) penalties anyone “corruptly gives, provides for who offers
Section any public person who has been anything value to officialor promises purposes. same three official” selected party may assign any portion charge “No as error of the party objects or omission therefrom unless that thereto stating before its verdict, retires to consider distinctly objects party the matter to which that and the grounds objection.” disapproval portions reasoning
This Court’s
*21
(CA4 1990),
Appeals’ opinion,
Court of
In the Court his convic- by supported under the Act was tion Hobbs not sufficient evi- appellate reviewing such a the contention, dence. court light must, course, view evidence in the “most favor- to the States, able Government.” Glasser v. United (1942). perfectly peti- 60, viewed, S. So it is clear U. properly jury guilty could have been found to be tioner extortion. stages. Petitioner’s was crime committed two Toward May petitioner “unfriendly” end of held an con- Vandergrift, representative versation of the unli- interpreted doctors, censed which could have as an licensing legislation implied no action to take threat implicit payment as well as an a cash unless he received pay- legislation appropriate support promise if cash an equally applies to the Because the statute ment was made. by public political power wrongful as use of a wrongful was violence, that inducement use of threatened protect storekeeper thug’s comparable a offer to a known damage exchange property against risk severe legislator thug nor the Neither consideration. cash get explicit promise explicit or an an threat needs to make message across. completed 1, 1984, on June when Van- The extortion was envelope containing dergrift personally nine delivered petitioner. The fact that bills to $100 required reported contribution, as West as a required Virginia income, as federal or as taxable law, adequately together evidence, with other circumstantial law, supports was intended the conclusion that *22 personally payment petitioner him to to induce act favor- to licensing legislation. acceptance ably His covert on the any such indeed, his at trial that he received denial cash— petitioner payment supports conclusionthat understood — (at least) implicitly payers’ he had and that intention they sought. promised provide them with the benefit that to opinion, agree I the Court would As understand its a Act if constitute violation Hobbs these facts would personal payment understanding a that the explicit had been rather than a contribution rather response understanding implicit that, if the than provide payers petitioner payment, to endeavor would they sought explicit specific had also been benefit with the opinion statutory my implicit. is no re- In there rather than promises illegal agreements, quirement threats, or be just writing, any particular form. Subtle extortion or in probably wrongful much more common—than the —and opinion understanding express the Court’s seems kind require. to prove
Nevertheless, Act, a violation the Hobbs I agree payment with the that it is Court essential that the question contingent understanding on mutual a payer’s motivation for the is the desire a avoid specific promised threatened harm or to obtain a benefit that apparent power the defendant has the to deliver, either through the use of force or use of office. require quo.” “quid pro sense, the crime does Because the “quid quo” pro use of the Latin term tends to confuse the analysis, important clarify however, it is sense which the term was used in the District Court’s instructions. explained, complete
IAs have the crime of extortion was petitioner accepted pursuant when the cash to an under- standing carry that he would not out his earlier threat go withhold officialaction would and instead forward contingent promise to take favorable action behalf of the physicians. might unlicensed he did What thereafter have evidentiary significance, completed but could neither undo a complete peti- crime nor an uncommitted offense. When money, guilty guilty. tioner took the he was either or not proof subsequent quid pro quo For that reason, of a —his support legislation necessary actual of —was conversely, peti- And Government’s case. evidence that supported legislation anyway tioner would have is not a already completed thug defense to the crime. The ex- who protection money ground torts cannot defend on the that his only he threat was bluff because would not have smashed shopkeeper’s windows even if the extortion had been un- *23 It successful. this sense that the District Court cor- rectly advised the that Government did not have to prove delivery postpayment quid pro quo, aof as illus- by excerpts trated these from the instructions: illegal,
“It would and of for the itself, defend- political accept ant solicit or from for- contributions eign legislation. who benefit doctors would from this extortion, guilty find Mr. McCormick
“In order to a reasonable doubt beyond be convinced must first you in a count in the indict- alleged given that payment the doctors with the on behalf of made ment was influence Mr. Mc- would payment that such expectation conduct, knowledge and with official Cormick’s him paid they McCormick of Mr. part he virtue of the office held. expectation with that for elected itself, legisla- illegal, “It is not contributions, legitimate campaign tor to solicit or accept from individuals legislators, himself or other on behalf of The legislation. in pending interest who have special contributions violates of such receipt solicitation when the only payment wrong- law federal extortion official right. under color of induced fully con- legitimate political officials receive “Many public who, knows, official are individuals from tributions him because of toward gratitude aby general motivated them, or even important issues on certain position his will such con- generated in the hope good official their receptive will make the more tributions cause. of such con- receipt political
“The mere solicitation illegal. tributions is not in this necessary government prove
“It is not in the his office public misused case that the defendant some benefit or advantage he granted sense that who doctors, here the unlicensed al- or persons, person the unlicensed doctors money. Though him paid legedly than their due the defend- no more have gotten duties, defendant’s official ant’s performance occurred, to have if find that you of money, receipt When is a misuse of office. of such acts the performance for an implicit prom- accepts were, if such there treatment, promise ise of fair *24 payment, an inherent that the there is threat without public the officialwould exercise discretion in ad- his an public A verse manner. claim that a official’sactions have not would been same whether or he received alleged payments purpose, this is, for irrelevant charges no in is defense to the contained one counts through five of indictment. necessary government prove
“So it is not promised quid or the defendant committed commit a quo, pro is, in consideration the nature of officialac- payment lawfully tion in return for the not quid pro may, quo course, owed. Such a be forthcom- ing may in an extortion case or it not. either event it App. not an is essential element the crime.” 20-22.1 supplemental charge equally The clear: necessary government prove not “It is this case that de- granted public fendant misused his office in the sense that he some benefit doctors, advantage person persons, here the unlicensed who paid money. him allegedly Though got- the unlicensed doctors have performance more than due in ten no their the defendant’s of his official duties, receipt money, you occurred, if defendant’s find that to have performance for the of such acts is a misuse of public office. Whether a accepts treatment, implicit promise for an of fair if were, promise pay- such there there is an inherent threat that without the ment, public official would exercise his in an discretion man- adverse claim actions ner. A that a official’s would have been same payments is, alleged purpose, whether or not he received the this irrel- for charges through evant and is no defense to the contained in counts one five App. indictment.” 32. this itself, illegal, “It legislator is elected to solicit or ac- cept campaign on behalf of himself legislators contributions or other from special pending who legislation. individuals have a interest The solicita- receipt tion or of such contributions violates the federal extortion law—and with, federal only that’s what we’re concerned extortion when law— payment wrongfully right. color induced under of official “Many public country political officials receive from contributions who, knows, by general gratitude individuals the official are motivated them, position important him because certain toward issues *25 the District instructions criticism of Court's This Court’s single on sentence: focuses this freely given expec- “‘Voluntary which is without is that Ante, ante, 265; at see also at tation of benefit.’” 272-273, 274-275. though as it
The sentence authorized the Court treats this legitimate campaign jury that contribution is invol- to find a untary the contributor extortion whenever and constitutes my expects In to from the candidate’s election.2 benefit generated will hope goodwill such contributions even in the receptive to their cause. make official more receipt political not of of such contributions is “The mere solicitation Id., illegal.” at 33. itself itself, Mr. McCormick to illegal, “It be in and for solicit would not foreign from accept political from doctors who would benefit contributions legislation. this extortion, you guilty must be con- “In find Mr. McCormick order to beyond payment alleged given a a reasonable doubt vinced by or on the doctors with the indictment was made behalf of count of payment Mr. expectation would influence McCormick’s that such conduct, they knowledge part and on the of Mr. McCormick that with Id., expectation by him of the office he held.” at paid with that virtue 33-34. supporting “Serving legislation that will benefit the constituents and everyday groups therein is the business of district and individuals and campaigns run and financed. legislator. It is true that must be also candidates, constantly being on behalf of who run on Money is solicited they and platforms support who claim the basis of their views what appear do Whatever ethical considerations or have done. intend indicate, legislators ex hold commit the federal crime of ances they support legislation benefit of constituents or when act tortion constituents, shortly furthering of their before or the interests some are and received those benefi after contributions solicited from ciaries, Congress have assessment of what could meant is unrealistic consent, another, property from ‘under making it a crime to obtain right.’ open prosecution would To hold otherwise color of official to well law but only long thought been within the also conduct that has long cam very real unavoidable so as election that in a sense is conduct expenditures, they have by private contributions or paigns are financed require statutory lan beginning of the Nation. It would been from the gross misreading opinion is a that sentence in the con- text of the entire set of instructions. question context, the sentence advised the that a voluntary
payment expectation if it is made without the specifically contingent upon payment. that is benefit expectation An that the donor will benefit from the election support particular who, office, of a candidate once would regardless legislation of whether or not the contribution is payment contingent would not make the made, or involun- tary “voluntary” in that such a sense; would be reading under a fair of the instructions, and the candidate’s *26 solicitation of such contributions from donors who would perfectly legitimate. benefit from his or her If, election is however, the donor and candidate know that the candidate’s support proposed legislation contingent upon the of is payment, may by jury the contribution be found a to have involuntary been or extorted. my judgment, prop-
In instructions, read a whole, as erly jury’s focused the attention on the critical issue of the specific candidate’s and contributor’s intent at the time the payment they ambiguous, was made.3 But if even subject improvement, they certainly provide do not a basis guage explicit more than justify contrary the Hobbs Act contains to a con Ante, at clusion.” 272-273. determining
3“In
validity
the effect of this instruction on the
of re
conviction,
spondent’s
accept
we
at
proposi
the outset the well-established
single
jury may
tion that a
judged
instruction to a
not be
in artificial isola
tion,
Boyd
but must be viewed in the context of the
charge.
overall
v.
(1926).
104, 107
States,
United
271 U. S.
While this does not mean that an
error,
may
instruction
itself
never rise to the level of constitutional
see
States,
(1972),
v.
recognize
Cool United
In the Court specific District Court or that the was erroneous instruction any petitioner by refusing give had that instruction erred judge petitioner request the Nor, trial, at did tendered. exchange promise jury for or threat instruct clarify meaning explicit payment had to be illegally distinguished “voluntary” in- from an contribution payment. instruction the District Court’s fact, duced promise “implicit finding on the of fair treatment” sup- exchange part petitioner contribution would for the petitioner’s part port from conviction came Act a Hobbs example, Defendant’s at trial. For instructions tendered District Court Requested 8-A in the Number Instruction proposed follows: be instructed as prove color of official crime extortion under “To pay- right, government establish a demand for must by the official. ment may established
“This demand It also the defendant himself. or conduct of words prior of the defendant’s the nature be communicated *27 office.” 13 Record. of his conduct Requested Similarly, 11-A Instruction Number Defendant’s read as follows: guilty extortion,
“In to find Mr. McCormick order beyond you that a doubt be convinced must reasonable paid payments alleged in the indictment were they expectation influence that would with the doctors knowl- conduct, with the official Mr. McCormick’s paid they edge part Mr. of McCormick expectation.” Ibid. him with that Requested 17, Number Instruction As to Government’s ac- began sentence, “‘When a which cepts implicit promise a treatment, for an of fair payment, an inherent that, there is threat without the public official would exercise his discretion an adverse added), (emphasis petitioner object manner’” way did not (Dec. 1988). legal 5, substance. See 7 Tr. 1070 (petitioner’s id., 1071, also at See 1077-1078 counsel conced- ing express implied promise by sup- McCormick to port legislation exchange support for contribution would violation). finding of Hobbs Act
Given that the District Court’s instructions to the
largely
requested by petitioner
tracked the instructions
at
legitimate
I can
trial,
see no
reason for this Court now to find
inadequate.
these instructions
Because I am convinced that
petitioner
fairly
by properly
tried and convicted
in
jury,
judgment
structed
I would affirm the
of the Court of
Appeals.
Appeals’
course,
Of
an affirmance of the Court of
judgment
necessarily
would not mean that we
affirm the
Appeals’ opinion.4
Court of
It is sufficient that an affirm
legal
ance of McCormick’sconviction rest on the
and factual
authority
The
suggestion
appellate
Court cites no
for its novel
that an
judgment affirming
court’s
a criminal conviction should be reversed even
Term,
though
during
no reversible error occurred
the trial.
Just this
Fulminante,
(1991),
Court Arizona v.
theories upon Appeals. were the ones relied Court of theories respectfully I dissent.