Petitioner McCormick, a member of the West Virginia House of
Delegates in 1984, was a leading advocate of a legislative program
allowing foreign medical school graduates to practice under
temporary permits while studying for the state licensing exams.
Some doctors practiced for years under the program, as they
repeatedly failed those exams. He sponsored a bill, sought by an
organization of those doctors, extending the program's expiration
date and later agreed to sponsor legislation in the 1985 session
that would grant the doctors a permanent license by virtue of their
years of experience. After advising the doctors' lobbyist, during
his 1984 reelection campaign, that,
inter alia, he had
heard nothing from the doctors, he received four cash payments from
them, which he neither listed as campaign contributions nor
reported as income on his 1984 federal income tax return. In 1985,
he sponsored the permanent licensing legislation, and, after it was
enacted, he received another payment from the doctors.
Subsequently, he was indicted in the Federal District Court on five
counts of violating the Hobbs Act, by extorting payments under
color of official right, and one count of filing a false income tax
return. The jury was instructed that extortion under color of
official right does not occur where a "public official receives a .
. . voluntary political contribution," and that "[v]oluntary is
that which is freely given without expectation of benefit." The
jury was also instructed on the tax count that a "voluntary"
political contribution is not taxable income provided that the
money is used for campaign expenses. McCormick was convicted of one
Hobbs Act count and the tax violation, and the Court of Appeals
affirmed. It found that an elected official's conviction under the
Hobbs Act does not require proof of a
quid pro quo -- a
payment made in return for an explicit promise or undertaking by
the official to perform or not to perform an official act -- unless
the payments are "legitimate" campaign contributions. It then
listed seven factors to be considered in making an extortion
determination, and concluded that McCormick extorted money from the
doctors, and that the parties never intended that money to be a
campaign contribution.
Held:
1. The Court of Appeals erred in affirming McCormick's
conviction under the Hobbs Act, because a
quid pro quo is
necessary for a conviction
Page 500 U. S. 258
when an official receives a campaign contribution, regardless of
whether it is a legitimate contribution. Pp.
500 U. S.
268-275.
(a) The court affirmed the conviction on legal and factual
grounds that were never submitted to the jury when it announced a
rule of law for determining when payments are made under color of
official right and found sufficient evidence to support its
extortion findings. Assuming that the court was correct on the law,
the judgment should have been set aside and a new trial ordered,
since matters of intent are for the jury to consider, and since
each of the court's seven factors presents an issue of historical
fact. Pp.
500 U. S.
269-270.
(b) A Hobbs Act violation would not be made out here even
assuming an unfavorable response to all seven of the Court of
Appeals' inquiries, including the factors of whether the official
acted in his official capacity at or near the time of payment,
whether he had supported legislation before the payment, and
whether he had solicited the payor individually. To hold that
legislators commit the federal crime of extortion when they act for
their constituents' benefit or support legislation furthering their
constituents' interests, shortly before or after they solicit or
receive campaign contributions from those beneficiaries, is an
unrealistic assessment of what Congress could have meant when it
made obtaining property from another "under color of official
right" a crime. Rather, under these circumstances, property is
extorted in violation of the Hobbs Act only when an official
asserts that his official conduct will be controlled by the terms
of the promise or undertaking. Pp.
500 U. S.
271-274.
(c) The Government's argument that the jury convicted on the
basis that the payment was not a campaign contribution is mere
speculation, since the instructions permitted the jury to find
McCormick guilty of extortion if the payment, even though a
campaign contribution, was not voluntary. Nor can the tax
conviction be relied on to show that the jury believed that the
payment was not a contribution for Hobbs Act purposes, since the
instruction on the tax count also failed to require the jury to
find that the payment was not a contribution before it could
convict on that count. Pp.
500 U. S. 274-275.
2. The Court of Appeals erred in basing its affirmance of the
tax conviction solely on the extortion conviction. The extortion
conviction does not demonstrate that the payments were not campaign
contributions, and hence taxable, since the instructions permitted
the jury to convict McCormick of the tax charge if it was convinced
that the payments were campaign contributions, but was also
convinced that the money was extorted. However, this finding does
not necessarily exhaust the possible grounds for affirming on the
tax count. Pp.
500 U. S.
275-276.
896 F.2d 61 (CA 4 1990), reversed and remanded.
Page 500 U. S. 259
WHITE, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and MARSHALL, SCALIA, KENNEDY, and SOUTER, JJ.,
joined. SCALIA, J., filed a concurring opinion,
post, p.
500 U. S. 276.
STEVENS, J., filed a dissenting opinion, in which BLACKMUN and
O'CONNOR, JJ., joined,
post, p.
500 U. S.
280.
JUSTICE WHITE delivered the opinion of the Court.
This case requires us to consider whether the Court of Appeals
properly affirmed the conviction of petitioner, an elected public
official, for extorting property under color of official right in
violation of the Hobbs Act, 18 U.S.C. § 1951. We also must address
the affirmance of petitioner's conviction for filing a false income
tax return.
I
Petitioner Robert L. McCormick was a member of the West Virginia
House of Delegates in 1984. He represented a district that had long
suffered from a shortage of medical doctors. For several years,
West Virginia had allowed foreign medical school graduates to
practice under temporary permits while studying for the state
licensing exams. Under this program, some doctors were allowed to
practice under temporary permits for years, even though they
repeatedly failed the state exams. McCormick was a leading advocate
and supporter of this program.
In the early 1980's, following a move in the House of Delegates
to end the temporary permit program, several of the temporarily
licensed doctors formed an organization to press their interests in
Charleston. The organization hired a lobbyist, John Vandergrift,
who in 1984 worked for legislation
Page 500 U. S. 260
that would extend the expiration date of the temporary permit
program. McCormick sponsored the House version of the proposed
legislation, and a bill was passed extending the program for
another year. Shortly thereafter, Vandergrift and McCormick
discussed the possibility of introducing legislation during the
1985 session that would grant the doctors a permanent medical
license by virtue of their years of experience. McCormick agreed to
sponsor such legislation.
During his 1984 reelection campaign, McCormick informed
Vandergrift that his campaign was expensive, that he had paid
considerable sums out of his own pocket, and that he had not heard
anything from the foreign doctors. Tr. 167-168. Vandergrift told
McCormick that he would contact the doctors and see what he could
do.
Id. at 168. Vandergrift contacted one of the foreign
doctors and later received from the doctors $1,200 in cash.
Vandergrift delivered an envelope containing nine $100 bills to
McCormick. Later the same day, a second delivery of $2,000 in cash
was made to McCormick. During the fall of 1984, McCormick received
two more cash payments from the doctors. McCormick did not list any
of these payments as campaign contributions, [
Footnote 1] nor did he report the money as income
on his 1984 federal income tax return. And although the doctors'
organization kept detailed books of its expenditures, the cash
payments were not listed as campaign contributions. Rather, the
entries for the payments were accompanied only by initials or other
codes signifying that the money was for McCormick.
In the spring of 1985, McCormick sponsored legislation
permitting experienced doctors to be permanently licensed without
passing the state licensing exams. McCormick spoke at length in
favor of the bill during floor debate, and the bill ultimately was
enacted into law. Two weeks after the legislation was enacted,
McCormick received another cash payment from the foreign
doctors.
Page 500 U. S. 261
Following an investigation, a federal grand jury returned an
indictment charging McCormick with five counts of violating the
Hobbs Act, [
Footnote 2] by
extorting payments under color of official right, and with one
count of filing a false income tax return in violation of 26 U.S.C.
§ 7206(1), [
Footnote 3] by
failing to report as income the cash payments he received from the
foreign doctors. At the close of a 6-day trial, the jury was
instructed that, to establish a Hobbs Act violation, the Government
had to prove that McCormick induced a cash payment and that he did
so knowingly and willfully by extortion. As set out in the margin,
the court defined "extortion" and other terms and elaborated on the
proof required with respect to the extortion counts. [
Footnote 4]
Page 500 U. S. 262
The next day, the jury informed the court that it
"would like to hear the instructions again with particular
emphasis on the definition of extortion under the color of official
right
Page 500 U. S. 263
and on the law as regards the portion of moneys received that
does not have to be reported as income."
App. 27. The court then reread most of the extortion
instructions to the
Page 500 U. S. 264
jury, but reordered some of the paragraphs and made the
following significant addition:
"Extortion under color of official right means the obtaining of
money by a public official when the money
Page 500 U. S. 265
obtained was not lawfully due and owing to him or to his office.
Of course, extortion does not occur where one who is a public
official receives a legitimate gift or a voluntary political
contribution, even though the political contribution may have been
made in cash in violation of local law. Voluntary is that which is
freely given without expectation of benefit."
Id. at 30.
It is also worth noting that, with respect to political
contributions, the last two paragraphs of the supplemental
instructions on the extortion counts were as follows:
"It would not be illegal, in and of itself, for Mr. McCormick to
solicit or accept political contributions from foreign doctors who
would benefit from this legislation."
"In order to find Mr. McCormick guilty of extortion, you must be
convinced beyond a reasonable doubt that the payment alleged in a
given count of the indictment was made by or on behalf of the
doctors with the expectation that such payment would influence Mr.
McCormick's official conduct, and with knowledge on the part of Mr.
McCormick that they were paid to him with that expectation by
virtue of the office he held."
Id. at 33-34.
The jury convicted McCormick of the first Hobbs Act count
(charging him with receiving the initial $900 cash payment) and the
income tax violation, but could not reach verdicts on the remaining
four Hobbs Act counts. The District Court declared a mistrial on
those four counts.
The Court of Appeals affirmed, observing that nonelected
officials may be convicted under the Hobbs Act without proof that
they have granted or agreed to grant some benefit or advantage in
exchange for money paid to them, and that elected officials should
be held to the same standard when they receive money other than
"legitimate" campaign contributions. 896 F.2d 61 (CA4 1990). After
stating that McCormick could not be prosecuted under the Hobbs Act
for receiving voluntary campaign contributions,
id. at 65,
the court rejected
Page 500 U. S. 266
McCormick's contention that conviction of an elected official
under the Act requires, under all circumstances, proof of a
quid pro quo, i.e., a promise of official action or
inaction in exchange for any payment or property received.
Id. at 66. Rather, the court interpreted the statute as
not requiring such a showing where the parties never intended the
payments to be "legitimate" campaign contributions.
Ibid.
After listing seven factors to be considered in making this
determination and canvassing the record evidence, the court
concluded:
"Under these facts, a reasonable jury could find that McCormick
was extorting money from the doctors for his continued support of
the 1985 legislation. Further, the evidence supports the conclusion
that the money was never intended by any of the parties to be a
campaign contribution. Therefore, we refuse to reverse the jury's
verdict against McCormick for violating the Hobbs Act."
Id. at 67. The Court of Appeals also affirmed the
income tax conviction.
Because of disagreement in the Courts of Appeals regarding the
meaning of the phrase "under color of official right" as it is used
in the Hobbs Act, [
Footnote 5]
we granted certiorari.
Page 500 U. S. 267
498 U.S. 807 (1990). We reverse and remand for further
proceedings.
Page 500 U. S. 268
II
McCormick's challenge to the judgment below affirming his
conviction is limited to the Court of Appeals' rejection of his
claim that the payments made to him by or on behalf of the doctors
were campaign contributions, the receipt of which did not violate
the Hobbs Act. Except for a belated claim not properly before us,
[
Footnote 6] McCormick does not
challenge any rulings of the courts below with respect to the
application of the Hobbs Act to payments made to nonelected
officials or to payments made to elected officials that are
properly determined not to be campaign contributions. Hence, we do
not consider how the "under color of official right" phrase is to
be
Page 500 U. S. 269
interpreted and applied in those contexts. In two respects,
however, we agree with McCormick that the Court of Appeals
erred.
A
First, we are quite sure that the Court of Appeals affirmed the
conviction on legal and factual grounds that were never submitted
to the jury. Although McCormick challenged the adequacy of the jury
instructions to distinguish between campaign contributions and
payments that are illegal under the Hobbs Act, the Court of
Appeals' opinion did not examine or mention the instructions given
by the trial court. The court neither dealt with McCormick's
submission that the instructions were too confusing to give
adequate guidance to the jury, nor, more specifically, with the
argument that, although the jury was instructed that voluntary
campaign contributions were not vulnerable under the Hobbs Act, the
word "voluntary" as used "in several places during the course of
these instructions," App. 30, was defined as "that which is freely
given without expectation of benefit."
Ibid. Neither did
the Court of Appeals note that the jury was not instructed in
accordance with the court's holding that the difference between
legitimate and illegitimate campaign contributions was to be
determined by the intention of the parties after considering
specified factors. [
Footnote 7]
Instead, the Court of Appeals, after announcing a rule of law for
determining when payments are made under color of official
right,
Page 500 U. S. 270
went on to find sufficient evidence in the record to support
findings that McCormick was extorting money from the doctors for
his continued support of the 1985 legislation, and further that the
parties never intended any of the payments to be a campaign
contribution.
It goes without saying that matters of intent are for the jury
to consider.
Cheek v. United States, 498 U.
S. 192,
498 U. S. 203
(1991). It is also plain that each of the seven factors that the
Court of Appeals thought should be considered in determining the
parties' intent present an issue of historical fact. Thus even
assuming the Court of Appeals was correct on the law, the
conviction should not have been affirmed on that basis, but should
have been set aside and a new trial ordered.
Bollenbach v.
United States, 326 U. S. 607,
326 U. S.
613-614 (1946);
Cole v. Arkansas, 333 U.
S. 196,
333 U. S.
201-202 (1948).
Cf. Kotteakos v. United States,
328 U. S. 750,
328 U. S. 763
(1946);
Cabana v. Bullock, 474 U.
S. 376,
474 U. S. 384
(1986);
Carpenters v. United States, 330 U.
S. 395,
330 U. S. 408
(1947). If for no other reason, therefore, the judgment of the
Court of Appeals must be reversed and the case remanded for further
proceedings. [
Footnote 8]
Page 500 U. S. 271
B
We agree with the Court of Appeals that, in a case like this, it
is proper to inquire whether payments made to an elected official
are, in fact, campaign contributions, and we agree that the
intention of the parties is a relevant consideration in pursuing
this inquiry. But we cannot accept the Court of Appeals' approach
to distinguishing between legal and illegal campaign contributions.
The Court of Appeals stated that payments to elected officials
could violate the Hobbs Act without proof of an explicit
quid
pro quo by proving that the payments "were never intended to
be
legitimate campaign contributions." 896 F.2d at 66
(emphasis added). [
Footnote 9]
This issue, as we read the Court of Appeals' opinion, actually
involved two inquiries, for, after applying the factors the Court
of Appeals considered relevant, it arrived at two conclusions:
first, that McCormick was extorting money for his continued support
of the 1985 legislation, and "[f]urther",
id. at 67, that
the money was never intended by the parties to be a campaign
contribution at all. The first conclusion, especially when
considered in light of the second, asserts that the campaign
contributions were illegitimate, extortionate payments.
Page 500 U. S. 272
This conclusion was necessarily based on the factors that the
court considered, the first four of which could not possibly, by
themselves, amount to extortion. Neither could they when considered
with the last three more telling factors, namely, whether the
official acted in his official capacity at or near the time of the
payment for the benefit of the payor; whether the official had
supported legislation before the time of the payment; and whether
the official had directly or indirectly solicited the payor
individually for the payment. Even assuming that the result of each
of these seven inquiries was unfavorable to McCormick, as they very
likely were in the Court of Appeals' view, we cannot agree that a
violation of the Hobbs Act would be made out, as the Court of
Appeals' first conclusion asserted.
Serving constituents and supporting legislation that will
benefit the district and individuals and groups therein is the
everyday business of a legislator. It is also true that campaigns
must be run and financed. Money is constantly being solicited on
behalf of candidates, who run on platforms and who claim support on
the basis of their views and what they intend to do or have done.
Whatever ethical considerations and appearances may indicate, to
hold that legislators commit the federal crime of extortion when
they act for the benefit of constituents or support legislation
furthering the interests of some of their constituents, shortly
before or after campaign contributions are solicited and received
from those beneficiaries, is an unrealistic assessment of what
Congress could have meant by making it a crime to obtain property
from another, with his consent, "under color of official right." To
hold otherwise would open to prosecution not only conduct that has
long been thought to be well within the law, but also conduct that,
in a very real sense, is unavoidable so long as election campaigns
are financed by private contributions or expenditures, as they have
been from the beginning of the Nation. It would require statutory
language more explicit
Page 500 U. S. 273
than the Hobbs Act contains to justify a contrary conclusion.
Cf. United States v. Enmons, 410 U.
S. 396,
410 U. S. 411
(1973).
This is not to say that it is impossible for an elected official
to commit extortion in the course of financing an election
campaign. Political contributions are, of course, vulnerable if
induced by the use of force, violence, or fear. The receipt of such
contributions is also vulnerable under the Act as having been taken
under color of official right, but only if the payments are made in
return for an explicit promise or undertaking by the official to
perform or not to perform an official act. In such situations, the
official asserts that his official conduct will be controlled by
the terms of the promise or undertaking. This is the receipt of
money by an elected official under color of official right within
the meaning of the Hobbs Act.
This formulation defines the forbidden zone of conduct with
sufficient clarity. As the Court of Appeals for the Fifth Circuit
observed in
United States v. Dozier, 672 F.2d 531, 537
(1982):
"A moment's reflection should enable one to distinguish, at
least in the abstract, a legitimate solicitation from the exaction
of a fee for a benefit conferred or an injury withheld. Whether
described familiarly as a payoff or with the Latinate precision of
quid pro quo, the prohibited exchange is the same: a
public official may not demand payment as inducement for the
promise to perform (or not to perform) an official act."
The United States agrees that, if the payments to McCormick were
campaign contributions, proof of a
quid pro quo would be
essential for an extortion conviction, Brief for United States
29-30, and quotes the instruction given on this subject in 9
Department of Justice Manual § 9-85 A. 306, p. 9-1938.134
(Supp.1988-2):
"campaign contributions will not be authorized as the subject of
a Hobbs Act prosecution unless they can be proven to have been
given in return for the performance of or abstaining from an
official act; otherwise, any campaign contribution might constitute
a violation. "
Page 500 U. S. 274
We thus disagree with the Court of Appeals' holding in this case
that a
quid pro quo is not necessary for conviction under
the Hobbs Act when an official receives a campaign contribution.
[
Footnote 10] By the same
token, we hold, as McCormick urges, that the District Court's
instruction to the same effect was error. [
Footnote 11]
III
The Government nevertheless insists that a properly instructed
jury in this case found that the payment at issue was not a
campaign contribution at all, and that the evidence amply supports
this finding. The instructions given here are not a model of
clarity, and it is true that the trial court instructed that the
receipt of voluntary campaign contributions did not violate the
Hobbs Act. But under the instructions, a contribution was not
"voluntary" if given with
any expectation of benefit; and,
as we read the instructions, taken as a whole, the jury was told
that it could find McCormick guilty of extortion if any of the
payments, even though a campaign contribution, was made by the
doctors with the expectation that McCormick's official action would
be influenced for their benefit, and if McCormick knew that the
payment was made with that expectation. It may be that the jury
found that none of the payments was a campaign contribution, but it
is mere speculation that the jury convicted on this basis, rather
than on the impermissible basis that, even though the first payment
was such a contribution, McCormick's receipt of it was a violation
of the Hobbs Act.
The United States submits that McCormick's conviction on the tax
count plainly shows that the jury found that the first
Page 500 U. S. 275
payment was not a campaign contribution. Again, we disagree, for
the instruction on the tax count told the jury, among other things,
that, if the money McCormick received "constituted
voluntary political contributions . . . it was . . . not
taxable income," App. 25 (emphasis added), and failure to report it
was not illegal. The jury must have understood "voluntary" to mean
what the Court had said it meant,
i.e., as "that which is
freely given without expectation of benefit."
Id. at 30.
The jury might well have found that the payments were campaign
contributions, but not voluntary, because they were given with an
expectation of benefit. They might have inferred from this fact,
although they were not instructed to do so, that the payments were
taxable even though they were contributions. Furthermore, the jury
was instructed that, if it found that McCormick did not use the
money for campaign expenses or to reimburse himself for such
expenses, then the payments given him by the doctors were taxable
income
even if the jury found that the doctors intended
the payments to be campaign contributions.
See id. at
24-26, 36-37. Contrary to the Government's contention, therefore,
by no means was the jury required to determine that the payments
from the doctors to McCormick were not campaign contributions
before it could convict on the tax count. The extortion conviction
cannot be saved on this theory.
IV
The Court of Appeals affirmed McCormick's conviction for filing
a false return on the sole ground that the jury's finding that
McCormick violated the Hobbs Act "under these facts implicitly
indicates that it rejected his attempts to characterize at least
the initial payment as a campaign contribution." 896 F.2d at 67.
This conclusion repeats the error made in affirming the extortion
conviction. The Court of Appeals did not examine the record in
light of the instructions given the jury on the extortion charge,
but considered the evidence in light of its own standard, under
which it found that the payments
Page 500 U. S. 276
were not campaign contributions. Had the court focused on the
instructions actually given at trial, it would have been obvious
that the jury could have convicted McCormick of the tax charge even
though it was convinced that the payments were campaign
contributions, but was also convinced that the money was received
knowing that it was given with an expectation of benefit and hence
was extorted. The extortion conviction does not demonstrate that
the payments were not campaign contributions, and hence
taxable.
Of course, the fact that the Court of Appeals erred in affirming
the extortion conviction and erred in relying on that conviction in
affirming the tax conviction does not necessarily exhaust the
possible grounds for affirming on the tax count. But the Court of
Appeals did not consider the verdict on that count in light of the
instructions thereon and then decide whether, in the absence of the
Hobbs Act conviction, McCormick was properly convicted for filing a
false income tax return. That option will be open on remand.
Accordingly we reverse the judgment of the Court of Appeals and
remand for further proceedings consistent with this opinion.
So ordered.
[
Footnote 1]
West Virginia law prohibits cash campaign contributions in
excess of $50 per person. W.Va.Code § 3-8-5d (1990).
[
Footnote 2]
The Hobbs Act, 18 U.S.C. § 1951, provides in relevant part as
follows:
"(a) Whoever in any way or degree obstructs, delays, or affects
commerce . . . by robbery or extortion . . . 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."
[
Footnote 3]
Section § 7206 of the Internal Revenue Code provides in part
that:
"Any person who -- "
"(1) . . . Willfully makes and subscribes any return . . . which
contains or is verified by a written declaration that it is made
under the penalties of perjury, and which he does not believe to be
true and correct as to every material matter . . . shall be guilty
of a felony. . . ."
[
Footnote 4]
The following are the relevant portions of the instructions
discussing the extortion charges:
"Now, a definition of some of the terms used."
"Extortion means the obtaining of property from another, with
his consent, either induced by the wrongful use of fear or induced
under color of official right."
"The term 'wrongful' means the obtaining of property unfairly
and unjustly by one having no lawful claim thereto."
"As to inducement, the United States must prove that the
defendant induced the person or persons described in the indictment
to part with property, a term which includes money. It is charged
that the defendant did so under color of official right."
"In proving this element, it is enough that the government prove
beyond a reasonable doubt that the benefactor transferred something
of significant value, here alleged to be money, to the public
official with the expectation that the public official would extend
to him some benefit or refrain from some harmful action, and the
public official accepted the money knowing it was being transferred
to him with that expectation by the benefactor and because of his
office."
"In determining whether the defendant induced a person or
persons described in the indictment to part with property at the
time of the alleged events in counts one and two, occurring as
you'll recall on June 1, 1984, as alleged in the indictment, and if
you believe it as set forth in some of the evidence adduced, you
may take into account all the surrounding circumstances, including
any word spoken by or actions of the defendant, if any, prior
thereto or in connection therewith. In determining whether the
defendant induced a person or persons described in the indictment
to part with property alleged in counts three, four, and five, you
may take into account all the surrounding circumstances, including
any course of conduct on the part of the defendant, if any, which
may bear thereon."
"And so, inducement can be in the overt form of a demand, or in
a more subtle form such as custom or expectation such as might have
been communicated by the nature of the defendant's prior conduct of
his office, if any."
"As to color of official right, in this case, the government has
charged that extortion was committed under color of official right,
in that the defendant is charged with committing extortion by
virtue of his office as a member of the West Virginia House of
Delegates."
"Extortion under color of official right means the obtaining of
money by a public official when the money obtained was not lawfully
due and owing to him or to his office."
"Extortion under color of official right does not require proof
of specific acts by the public official demonstrating force,
threats, or the use of fear, so long as the victim consented
because of the office or position held by the official."
"Where, as here, the indictment charges the the alleged
extortion was committed under color of official right, the
government need not prove that the alleged victim of the extortion,
here the unlicensed doctors, was, in fact, in a state of fear at
the time the payments in question were made, although they may have
been, that is, the evidence may indicate to you conceivably that
that is the case, but that, of course, is not of particular
moment."
"Extortion under color of official right is committed whenever a
public officer makes wrongful use of his office to obtain money not
due to him or his office. It is the public official's misuse of his
office which, by itself, supplies proof of the necessary element of
coercion. Therefore, the wrongful use of official power need not be
accompanied by actual or threatened force, violence, or fear."
"If the public official knows the motivation of the victim to
make any payment focuses on the public official's office, and money
is obtained by the public official which was not lawfully due and
owing to him or the office he represented, that is sufficient to
satisfy the government's burden of showing a misuse of office and
extortion under color of official right. The mere voluntary payment
of money, however, does not constitute extortion."
"Finally, to prove extortion under color of official right, the
government need not establish that the defendant actually possessed
authority over the passage of the legislation in question.
Similarly, the payments need not have been made directly or
ultimately to the public official. It is sufficient if the evidence
shows that the victim was induced to deliver money to someone as a
result of the defendant's office."
"There has been evidence in this case that, for some years
before 1984, as well as during the 1984 and 1985 legislative
session, the defendant was a leading supporter of legislation to
permit foreign medical school graduates who did not meet all the
medical licensing requirements to practice in areas of West
Virginia that needed physicians."
"It would not be illegal, in and of itself, for the defendant to
solicit or accept political contributions from foreign doctors who
would benefit from this legislation."
"In order to find Mr. McCormick guilty of extortion, you must
first be convinced beyond a reasonable doubt that the payment
alleged in a given count in the indictment was made by or on behalf
of the doctors with the expectation that such payment would
influence Mr. McCormick's official conduct, and with the knowledge
on the part of Mr. McCormick that they were paid to him with that
expectation by virtue of the office he held."
"It is not illegal, in and of itself, for an elected legislator
to solicit or accept legitimate campaign contributions, on behalf
of himself or other legislators, from individuals who have a
special interest in pending legislation. The solicitation or
receipt of such contributions violates the federal extortion law
only when the payment is wrongfully induced under color of official
right."
"Many public officials receive legitimate political
contributions from individuals who, the official knows, are
motivated by a general gratitude toward him because of his position
on certain issues important to them, or even in the hope that the
good will generated by such contributions will make the official
more receptive to their cause."
"The mere solicitation or receipt of such political
contributions is not illegal."
"It is not necessary that the government prove in this case that
the defendant misused his public office in the sense that he
granted some benefit or advantage to the person or persons, here
the unlicensed doctors, who allegedly paid him money. Though the
unlicensed doctors may have gotten no more than their due in the
defendant's performance of his official duties, the defendant's
receipt of money, if you find that to have occurred, for the
performance of such acts is a misuse of office. When a public
official accepts the payment for an implicit promise of fair
treatment, if any such promise there were, there is an inherent
threat that, without the payment, the public official would
exercise his discretion in an adverse manner. A claim that a public
official's actions would have been the same whether or not he
received the alleged payments is, for this purpose, irrelevant, and
is no defense to the charges contained in counts one through five
of the indictment."
"So it is not necessary that the government prove that the
defendant committed or promised to commit a
quid pro quo,
that is, consideration in the nature of official action in return
for the payment of the money not lawfully owed. Such a
quid pro
quo may, of course, be forthcoming in an extortion case, or it
may not. In either event, it is not an essential element of the
crime."
"While it is not necessary to prove that the defendant
specifically intended to interfere with interstate commerce, it is
necessary as to this issue that the government prove that the
natural consequences of the acts alleged in the indictment would be
to delay, interrupt, or adversely affect interstate commerce, which
means the flow of commerce or business activities between two or
more states."
"Potential future effect on commerce is enough to satisfy this
element."
App. 17-22.
[
Footnote 5]
Until the early 1970's, extortion prosecutions under the Hobbs
Act rested on allegations that the consent of the transferor of
property had been "induced by wrongful use of actual or threatened
force, violence, or fear -- "; public officials had not been
prosecuted under the "color of official right" phrase standing
alone. Beginning with the conviction involved in
United States
v. Kenny, 462 F.2d 1205 (CA3 1972), however, the federal
courts accepted the Government's submission that, because of the
disjunctive language of § 1951(b)(2), allegations of force,
violence or fear were not necessary. Only proof of the obtaining of
property under claims of official right was necessary. Furthermore,
every Court of Appeals to have construed the phrase held that it
did not require a showing that the public official "induced" the
payor's consent by some affirmative act such as a demand or
solicitation. Although there was some difference in the language of
these holdings, the "color of official right" element required no
more than proof of the payee's acceptance knowing that the payment
was made for the purpose of influencing his official actions. In
1984, however, the Court of Appeals for the Second Circuit, en
banc, held that some affirmative act of inducement by the official
had to be shown to prove the Government's case.
United States
v. O'Grady, 742 F.2d 682 (1984). In 1988, the Ninth Circuit,
en banc, agreed with the Second Circuit, overruling a prior
decision expressing the majority rule.
United States v.
Aguon, 851 F.2d 1158 (1988). Other courts have been
unimpressed with the view expressed in
O'Grady and
Aguon. See, e.g., United States v. Evans, 910
F.2d 790, 796-797 (CA11 1990),
cert. pending, No. 96105;
United States v. Spitler, 800 F.2d 1267, 1274 (CA4 1986);
United States v. Paschall, 772 F.2d 68, 71 (CA4 1985).
The conflict on this issue is clear, but this case is not the
occasion to resolve it. The trial court instructed that proof of
inducement was essential to the Government's case, but stated that
the requirement could be satisfied by showing the receipt of money
by McCormick knowing that it was proffered with the expectation of
benefit and on account of his office, proof that would be
inadequate under the
O'Grady view of inducement. McCormick
did not challenge this instruction in the trial court or the Court
of Appeals, nor does he here.
We do address, however, the issue of what proof is necessary to
show that the receipt of a campaign contribution by an elected
official is violative of the Hobbs Act. The trial court and the
Court of Appeals were of the view that it was unnecessary to prove
that, in exchange for a campaign contribution, the official
specifically promised to perform or not to perform an act incident
to his office. The Court of Appeals, based on its reading of
United States v. Trotta, 525 F.2d 1096 (CA2 1975), stated
that the Court of Appeals for the Second Circuit had a similar
view. Other Courts of Appeals appear to require proof of a
quid
pro quo. United States v. Bibby, 752 F.2d 1116, 1127,
n. 1 (CA6 1985);
United States v. Haimowitz, 725 F.2d
1561, 1573, 1577 (CA11 1984);
United States v. Dozier, 672
F.2d 531, 537 (CA5 1982).
JUSTICE STEVENS, in dissent, makes the bald assertion that
"[i]t is perfectly clear . . . that the evidence presented to
the jury was adequate to prove beyond a reasonable doubt that
petitioner knowingly used his public office to make or imply
promises or threats to his constituents for purposes of pressuring
them to make payments that were not lawfully due him."
Post at
500 U. S. 281.
Contrary to JUSTICE STEVENS' apparent suggestion, the main issue
throughout this case has been whether, under proper instructions,
the evidence established a Hobbs Act violation and, as our opinion
indicates, it is far from "perfectly clear" that the Government has
met its burden in this regard.
[
Footnote 6]
In briefing the merits in this Court, McCormick has argued that
the Hobbs Act was never intended to apply to corruption involving
local officials, and that, in any event, an official has not acted
under color of official right unless he falsely represents that, by
virtue of his office, he has a legal right to the money or property
he receives. These arguments were not presented to the courts
below. They are not expressly among the questions presented in the
petition for certiorari, and are only arguably subsumed by the
questions presented. Nor, in view of the language of the Hobbs Act
and the many cases approving the conviction of local officials
under the Act, can it be said that plain error occurred in the
lower courts for failure to recognize that the Act was inapplicable
to the extortion charges brought against McCormick. As for the
false pretenses argument,
United States v. French, 628
F.2d 1069 (CA8 1980);
United States v. Mazzei, 521 F.2d
639 (CA3 1975) (en banc);
United States v. Price, 507 F.2d
1349, 1350 (CA4 1974) (per curiam); and
United States v.
Braasc, 505 F.2d 139, 150-151 (CA7 1974), have rejected the
claim, and many other convictions have been affirmed where it is
plain that there was no misrepresentation of legal right. In view
of these cases and the origin of the phrase "under color of
official right",
see Lindgren, The Elusive Distinction
Between Bribery and Extortion: From the Common Law to the Hobbs
Act, 35 U.C.L.A.Law Rev. 815 (1988), no plain error occurred below
in failing to interpret the phrase as McCormick argues.
Accordingly, the submission does not comply with our rules, is
untimely, and we do not address it further.
Berkemer v.
McCarty, 468 U. S. 420,
468 U. S. 443,
and n. 38 (1984)
[
Footnote 7]
"Some of the circumstances that should be considered in making
this determination include, but are not limited to, (1) whether the
money was recorded by the payor as a campaign contribution, (2)
whether the money was recorded and reported by the official as a
campaign contribution, (3) whether the payment was in cash, (4)
whether it was delivered to the official personally or to his
campaign, (5) whether the official acted in his official capacity
at or near the time of the payment for the benefit of the payor or
supported legislation that would benefit the payor, (6) whether the
official had supported similar legislation before the time of the
payment, and (7) whether the official had directly or indirectly
solicited the payor individually for the payment."
896 F.2d 61, 66 (1990).
[
Footnote 8]
JUSTICE STEVENS apparently refuses to recognize that the Court
of Appeals affirmed McCormick's conviction on legal and factual
theories never tried to the jury. As indicated above, for that
reason alone, and without dealing with the Court of Appeals' other
errors, the judgment must be reversed. JUSTICE STEVENS erroneously
suggests,
see post at
500 U. S. 289,
n. 4, that the procedural posture of this case is no different than
the posture in
Arizona v. Fulminante, 499 U.
S. 279 (1991), a case in which the Court affirmed the
lower court's judgment even though it rejected the lower court's
reasoning. The analogy JUSTICE STEVENS attempts to draw is inapt,
because it misses the point that, in a criminal case, a defendant
is constitutionally entitled to have the issue of criminal
liability determined by a jury in the first instance. In
Fulminante, the Court
reversed the defendant's
conviction, it did not impose criminal liability on a theory
different than that relied upon by the Arizona Supreme Court. This
Court has never held that the right to a jury trial is satisfied
when an appellate court retries a case on appeal under different
instructions and on a different theory than was ever presented to
the jury. Appellate courts are not permitted to affirm convictions
on any theory they please simply because the facts necessary to
support the theory were presented to the jury.
[
Footnote 9]
The record shows that McCormick did not ask for an instruction
to the effect that proof of an explicit
quid pro quo was
necessary to convict an elected official under the Hobbs Act for
extorting a campaign contribution. Indeed, at one point,
McCormick's counsel stated that there was no such requirement. Tr.
1067. Furthermore, the last two paragraphs of the supplemental
instructions on extortion, App. 33-34, were almost identical to
McCormick's proposed instruction No. 11-A, 13 Record, which fell
short of requiring for conviction a promise to perform an official
act in return for a campaign contribution. In the Court of Appeals,
however, McCormick argued that such an undertaking by the official
was essential. The Court of Appeals chose to address the submission
and, as we understand it, rejected it. The issue is fairly subsumed
in the questions presented here, and is argued in the briefs.
Hence, we reach and decide the question.
[
Footnote 10]
As noted previously,
see supra at
500 U. S.
268-269, McCormick's sole contention in this case is
that the payments made to him were campaign contributions.
Therefore, we do not decide whether a
quid pro quo
requirement exists in other contexts, such as when an elected
official receives gifts, meals, travel expenses, or other items of
value.
[
Footnote 11]
In so holding, we do not resolve the conflict mentioned in
n 5,
supra, with
respect to the necessity of proving inducement.
JUSTICE SCALIA, concurring.
I agree with the Court's conclusion and, given the assumption on
which this case was briefed and argued, with the reasons the Court
assigns. If the prohibition of the Hobbs Act, 18 U.S.C. § 1951,
against receipt of money "under color of official right" includes
receipt of money from a private source for the performance of
official duties, that ambiguously described crime assuredly need
not, and for the reasons the Court discusses should not, be
interpreted to cover campaign contributions with anticipation of
favorable future action, as opposed to campaign contributions in
exchange for an explicit promise of favorable future action.
Page 500 U. S. 277
I find it unusual and unsettling, however, to make such a
distinction without any hint of a justification in the statutory
text: § 1951 contains not even a colorable allusion to campaign
contributions or
quid pro quo's. I find it doubly
unsettling because there is another interpretation of § 1951,
contrary to the one that has been the assumption of argument here,
that would render the distinction unnecessary. While I do not feel
justified in adopting that interpretation without briefing and
argument, neither do I feel comfortable giving tacit approval to
the assumption that contradicts it. I write, therefore, a few words
concerning the text of this statute, and the history that has
produced the unexamined assumption underlying our opinion.
Section 1951(a) provides:
"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 . . . shall be fined not more than $10,000
or imprisoned not more than twenty years, or both."
Section 1951(b)(2) 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 relevant provisions were enacted as part of the
Anti-Racketeering Act of 1934, 48 Stat. 979, and were carried
forward without change in the Hobbs Act of 1948. For more than 30
years after enactment, there is no indication that they were
applied to the sort of conduct alleged here.
When, in the 1960s, it first occurred to federal prosecutors to
use the Hobbs Act to reach what was essentially the soliciting of
bribes by state officials, courts were unimpressed with the notion.
They thought that public officials were not guilty of extortion
when they accepted, or even when they requested,
voluntary
payments designed to influence or procure their official action.
United States v. Hyde, 448 F.2d 815, 833 (CA5 1971) ("The
distinction from bribery is therefore . . . the fear and lack of
voluntariness on the part of
Page 500 U. S. 278
the victim");
United States v. Addonizio, 451 F.2d 49,
72 (CA3 1971) ("[W]hile the essence of bribery is voluntariness,
the essence of extortion is duress");
United States v.
Kubacki, 237 F.
Supp. 638, 641 (ED Pa.1965) (same). Not until 1972 did any
court apply the Hobbs Act to bribery.
See United States v.
Kenny, 462 F.2d 1205, 1229 (CA3 1972) ("kickbacks" by
construction contractors to public officials established extortion
"under color of official right," despite absence of "threat, fear,
or duress"). That holding was soon followed by the Seventh Circuit
in
United States v. Braasch, 505 F.2d 139, 151 (1974),
which said that, "[s]o long as the motivation for the payment
focuses on the recipient's office, the conduct falls within the
ambit of 18 U.S.C. § 1951." While
Kenny, Braasch, and
subsequent cases were debated in academic writing,
compare
Ruff, Federal Prosecution of Local Corruption: A Case Study in the
Making of Law Enforcement Policy, 65 Georgetown L.J. 1171 (1977)
(criticizing
Kenny),
with Lindgren, The Elusive
Distinction between Bribery and Extortion: From the Common Law to
the Hobbs Act, 35 UCLA L.Rev. 815 (1988) (defending
Kenny), the Courts of Appeals accepted the expansion with
little disagreement,
see, e.g., United States v. Harding,
563 F.2d 299, 302-303 (CA6 1977);
United States v.
Hathaway, 534 F.2d 386, 393 (CA1 1976);
United States v.
Hall, 536 F.2d 313, 320-321 (CA10 1976);
but see United
States v. Cerilli, 603 F.2d 415, 426-437 (CA3 1979) (Aldisert,
J., dissenting), and this Court has never had occasion to consider
the matter.
It is acceptance of the assumption that "under color of official
right" means "on account of one's office" that brings bribery cases
within the statute's reach, and that creates the necessity for the
reasonable but textually inexplicable distinction the Court makes
today. That assumption is questionable. "The obtaining of property
. . . under color of official
right" more naturally
connotes some false assertion of official
entitlement to
the property. This interpretation
Page 500 U. S. 279
might have the effect of making the § 1951 definition of
extortion comport with the definition of "extortion" at common law.
One treatise writer, describing "extortion by a public officer,"
states:
"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 790-791
(1957).
It also appears to be the case that, under New York law, which
has long contained identical "under color of official right"
language and upon which the Hobbs Act is said to have been based,
see Ruff,
supra, at 1183, bribery and extortion
were separate offenses. An official charged with extortion could
defend on the ground that the payment was voluntary, and thus he
was guilty only of bribery.
People v. Feld, 262 A.D. 909,
28 N.Y.S.2d 796, 797 (Sup.Ct.1941);
see People v.
Dioguardi, 8 N.Y.2d 260, 273-274, 203 N.Y.S.2d 870, 168 N.E.2d
683 (1960). I am aware of only one pre-Hobbs Act New York
prosecution involving extortion "under color of official right,"
and there the defendant, a justice of the peace, had extracted a
payment from a litigant on the false ground that it was due him as
a court fee.
People v. Whaley, 6 Cow. (N.Y.) 661, 661-663
(Sup.Ct.1827).
Finally, where the United States Code explicitly criminalizes
conduct such as that alleged in the present case, it calls the
crime bribery, not extortion -- and, like all bribery laws I am
aware of (but unlike § 1951 and all other extortion laws I am aware
of), it punishes not only the person receiving the payment but the
person making it.
See 18 U.S.C. § 201(b) (criminalizing
bribery of and by federal officials).
*
Page 500 U. S. 280
Cf. 18 U.S.C. § 872 (criminalizing extortion by federal
officials, making no provision for punishment of person extorted).
McCormick, though not a federal official, is subject to federal
prosecution for bribery under the Travel Act, 18 U.S.C. § 1952,
which criminalizes the use of interstate commerce for purposes of
bribery -- and reaches, of course, both the person giving and the
person receiving the bribe.
I mean only to raise this argument, not to decide it, for it has
not been advanced, and there may be persuasive responses.
See,
e.g., Lindgren,
supra, at 837-889 (arguing that,
under early common law, bribery and extortion were not separate
offenses, and that extortion did not require proof of a coerced
payment). But unexamined assumptions have a way of becoming, by
force of usage, unsound law. Before we are asked to go further down
the road of making reasonable but textually unapparent distinctions
in a federal "payment for official action" statute -- as we
unquestionably will be asked,
see ante at
500 U. S. 267,
n. 5 -- I think it well to bear in mind that the statute may not
exist.
* Section 201(b)(2) prescribes penalties for anyone who,
"being a public official or person selected to be a public
official, directly or indirectly, corruptly demands, seeks,
receives, accepts, or agrees to receive or accept anything of value
personally or for any other person or entity, in return for:"
"(A) being influenced in performance of any official act;"
"(B) being influenced to commit or aid in committing, or to
collude in, or allow, any fraud, or make opportunity for the
commission of any fraud on the United States; or"
"(C) being induced to do or omit to do any act in violation of
the official duty of such official or person"
Section 201(b)(1) provides penalties for anyone who "corruptly
gives, offers or promises anything of value to any public official
or person who has been selected to be a public official" for the
same three purposes.
JUSTICE STEVENS, with whom JUSTICE BLACKMUN and JUSTICE O'CONNOR
join, dissenting.
An error in a trial judge's instructions to the jury is not
ground for reversal unless the defendant has made, and preserved, a
specific objection to the particular instruction in question. Rule
30 of the Federal Rules of Criminal Procedure provides, in
part:
Page 500 U. S. 281
"No party may assign as error any portion of the charge or
omission therefrom unless that party objects thereto before the
jury retires to consider its verdict, stating distinctly the matter
to which that party objects and the grounds of the objection."
This Court's disapproval of portions of the reasoning in the
Court of Appeals' opinion, 896 F.2d 61 (CA4 1990), is not a
sufficient ground for reversing its judgment. It is perfectly clear
that the indictment charged a violation of the Hobbs Act, 18 U.S.C.
§ 1951, and that the evidence presented to the jury was adequate to
prove beyond a reasonable doubt that petitioner knowingly used his
public office to make or imply promises or threats to his
constituents for purposes of pressuring them to make payments that
were not lawfully due him. Apart from its criticism of the Court of
Appeals' opinion, the Court's reversal of petitioner's conviction,
in the final analysis, rests on its view that the jury instructions
were incomplete because they did not adequately define the concept
of "voluntary" contribution in distinguishing such contributions
from extorted payments, and because the instructions did not
require proof that petitioner made an "explicit" promise (or
threat) in exchange for a campaign contribution. In my opinion, the
instructions were adequate, and, in any event, to the extent that
they were ambiguous, petitioner failed to preserve a proper
objection.
In the Court of Appeals, petitioner argued that his conviction
under the Hobbs Act was not supported by sufficient evidence. In
reviewing such a contention, the appellate court must, of course,
view the evidence in the light "most favorable to the Government."
Glasser v. United States, 315 U. S.
60,
315 U. S. 80
(1942). So viewed, it is perfectly clear that petitioner could
properly have been found by the jury to be guilty of extortion.
Petitioner's crime was committed in two stages. Toward the end
of May, 1984, petitioner held an "unfriendly" conversation with
Vandergrift, the representative of the unlicensed doctors, which
the jury could have interpreted as an
Page 500 U. S. 282
implied threat to take no action on the licensing legislation
unless he received a cash payment, as well as an implicit promise
to support the legislation if an appropriate cash payment was made.
Because the statute applies equally to the wrongful use of
political power by a public official as to the wrongful use of
threatened violence, that inducement was comparable to a known
thug's offer to protect a storekeeper against the risk of severe
property damage in exchange for a cash consideration. Neither the
legislator nor the thug needs to make an explicit threat or an
explicit promise to get his message across.
The extortion was completed on June 1, 1984, when Vandergrift
personally delivered an envelope containing nine $100 bills to
petitioner. The fact that the payment was not reported as a
campaign contribution, as required by West Virginia law, or as
taxable income, as required by federal law, together with other
circumstantial evidence, adequately supports the conclusion that
the money was intended as a payment to petitioner personally to
induce him to act favorably on the licensing legislation. His
covert acceptance of the cash -- indeed, his denial at trial that
he received any such payment -- supports the conclusion that
petitioner understood the payers' intention, and that he had
implicitly (at least) promised to provide them with the benefit
that they sought.
As I understand its opinion, the Court would agree that these
facts would constitute a violation of the Hobbs Act if the
understanding that the money was a personal payment, rather than a
campaign contribution, had been explicit, rather than implicit, and
if the understanding that, in response to the payment, petitioner
would endeavor to provide the payers with the specific benefit they
sought had also been explicit, rather than implicit. In my opinion,
there is no statutory requirement that illegal agreements, threats,
or promises be in writing, or in any particular form. Subtle
extortion is just as wrongful -- and probably much more common --
than the kind of express understanding that the Court's opinion
seems to require.
Page 500 U. S. 283
Nevertheless, to prove a violation of the Hobbs Act, I agree
with the Court that it is essential that the payment in question be
contingent on a mutual understanding that the motivation for the
payment is the payer's desire to avoid a specific threatened harm
or to obtain a promised benefit that the defendant has the apparent
power to deliver, either through the use of force or the use of
public office. In this sense, the crime does require a "
quid
pro quo." Because the use of the Latin term "
quid pro
quo" tends to confuse the analysis, however, it is important
to clarify the sense in which the term was used in the District
Court's instructions.
As I have explained, the crime of extortion was complete when
petitioner accepted the cash pursuant to an understanding that he
would not carry out his earlier threat to withhold official action,
and instead would go forward with his contingent promise to take
favorable action on behalf of the unlicensed physicians. What he
did thereafter might have evidentiary significance, but could
neither undo a completed crime or complete an uncommitted offense.
When petitioner took the money, he was either guilty or not guilty.
For that reason, proof of a subsequent
quid pro quo -- his
actual support of the legislation -- was not necessary for the
Government's case. And conversely, evidence that petitioner would
have supported the legislation anyway is not a defense to the
already completed crime. The thug who extorts protection money
cannot defend on the ground that his threat was only a bluff,
because he would not have smashed the shopkeeper's windows even if
the extortion had been unsuccessful. It was in this sense that the
District Court correctly advised the jury that the Government did
not have to prove the delivery of a postpayment
quid pro
quo, as illustrated by these excerpts from the
instructions:
"It would not be illegal, in and of itself, for the defendant to
solicit or accept political contributions from foreign doctors who
would benefit from this legislation. "
Page 500 U. S. 284
"In order to find Mr. McCormick guilty of extortion, you must
first be convinced beyond a reasonable doubt that the payment
alleged in a given count in the indictment was made by or on behalf
of the doctors with the expectation that such payment would
influence Mr. McCormick's official conduct, and with the knowledge
on the part of Mr. McCormick that they were paid to him with that
expectation by virtue of the office he held."
"It is not illegal, in and of itself, for an elected legislator
to solicit or accept legitimate campaign contributions, on behalf
of himself or other legislators, from individuals who have a
special interest in pending legislation. The solicitation or
receipt of such contributions violates the federal extortion law
only when the payment is wrongfully induced under color of official
right."
"Many public officials receive legitimate political
contributions from individuals who, the official knows, are
motivated by a general gratitude toward him because of his position
on certain issues important to them, or even in the hope that the
good will generated by such contributions will make the official
more receptive to their cause."
"The mere solicitation or receipt of such political
contributions is not illegal."
"It is not necessary that the government prove in this case that
the defendant misused his public office in the sense that he
granted some benefit or advantage to the person or persons, here
the unlicensed doctors, who allegedly paid him money. Though the
unlicensed doctors may have gotten no more than their due in the
defendant's performance of his official duties, the defendant's
receipt of money, if you find that to have occurred, for the
performance of such acts is a misuse of office. When a public
official accepts the payment for an implicit promise of fair
treatment, if any such promise there were,
Page 500 U. S. 285
there is an inherent threat that, without the payment, the
public official would exercise his discretion in an adverse manner.
A claim that a public official's actions would have been the same
whether or not he received the alleged payments is, for this
purpose, irrelevant, and is no defense to the charges contained in
counts one through five of the indictment."
"So it is not necessary that the government prove that the
defendant committed or promised to commit a
quid pro quo,
that is, consideration in the nature of official action in return
for the payment of the money not lawfully owed. Such a
quid pro
quo may, of course, be forthcoming in an extortion case, or it
may not. In either event, it is not an essential element of the
crime."
App. 222. [
Footnote 2/1]
Page 500 U. S. 286
This Court's criticism of the District Court's instructions
focuses on this single sentence: "Voluntary is that which is freely
given without expectation of benefit."
See ante at
500 U. S. 269.
The Court treats this sentence as though it authorized the jury to
find that a legitimate campaign contribution is involuntary and
constitutes extortion whenever the contributor expects to benefit
from the candidate's election. [
Footnote 2/2] In my
Page 500 U. S. 287
opinion, this is a gross misreading of that sentence in the
context of the entire set of instructions.
In context, the sentence in question advised the jury that a
payment is voluntary if it is made without the expectation of a
benefit that is specifically contingent upon the payment. An
expectation that the donor will benefit from the election of a
candidate who, once in office, would support particular legislation
regardless of whether or not the contribution is made, would not
make the payment contingent or involuntary in that sense; such a
payment would be "voluntary" under a fair reading of the
instructions, and the candidate's solicitation of such
contributions from donors who would benefit from his or her
election is perfectly legitimate. If, however, the donor and
candidate know that the candidate's support of the proposed
legislation is contingent upon the payment, the contribution may be
found by a jury to have been involuntary or extorted.
In my judgment, the instructions, read as a whole, properly
focused the jury's attention on the critical issue of the
candidate's and contributor's intent at the time the specific
payment was made. [
Footnote 2/3]
But even if they were ambiguous, or subject to improvement, they
certainly do not provide a basis
Page 500 U. S. 288
for reversing the conviction when the petitioner failed to
advise the District Court of an error this Court now believes it
has detected.
In the Court of Appeals, petitioner did not argue that any
specific instruction was erroneous, or that the District Court
erred by refusing to give any instruction that petitioner had
tendered. Nor, at trial, did petitioner request the judge to
instruct the jury that any promise or threat in exchange for the
payment had to be explicit or to clarify the meaning of a
"voluntary" contribution, as distinguished from an illegally
induced payment. In fact, the District Court's instruction that a
finding that an "implicit promise of fair treatment" on the part of
petitioner in exchange for the contribution would support a Hobbs
Act conviction came in part from petitioner's tendered instructions
at trial. For example, defendant's requested instruction number 8-A
in the District Court proposed that the jury be instructed as
follows:
"To prove the crime of extortion under color of official right,
the government must establish a demand for payment by the
official."
"This demand for payment may be established by the words or
conduct of the defendant himself. It also may be communicated by
the nature of the defendant's prior conduct of his office."
13 Record, Supp. 1. Similarly, defendant's requested instruction
number 11-A read as follows:
"In order to find Mr. McCormick guilty of extortion, you must be
convinced beyond a reasonable doubt that the payments alleged in
the indictment were paid by [the doctors] with the expectation that
they would influence Mr. McCormick's official conduct, and with the
knowledge on the part of Mr. McCormick that they were paid to him
with that expectation."
Ibid.
As to the Government's requested instruction number 17, which
began with the sentence,
"When a public official accepts
Page 500 U. S. 289
a payment for an
implicit promise of fair treatment,
there is an inherent threat that, without the payment, the public
official would exercise his discretion in an adverse manner"
(emphasis added), petitioner did not object in any way to the
legal substance.
See 7 Tr. 1070 (Dec. 5, 1988).
See
also id. at 1071, 1077-1078 (petitioner's counsel conceding
that express or implied promise by McCormick to support legislation
in exchange for contribution would support finding of Hobbs Act
violation).
Given that the District Court's instructions to the jury largely
tracked the instructions requested by petitioner at trial, I can
see no legitimate reason for this Court now to find these
instructions inadequate. Because I am convinced that the petitioner
was fairly tried and convicted by a properly instructed jury, I
would affirm the judgment of the Court of Appeals. Of course, an
affirmance of the Court of Appeals'
judgment would not
mean that we necessarily affirm the Court of Appeals'
opinion. [
Footnote 2/4] It
is sufficient that an affirmance of McCormick's conviction rest on
the legal and factual
Page 500 U. S. 290
theories actually presented to the jury, whether or not these
theories were the ones relied upon by the Court of Appeals.
I respectfully dissent.
[
Footnote 2/1]
The supplemental charge to the jury was equally clear:
"It is not necessary that the government prove in this case that
the defendant misused his public office in the sense that he
granted some benefit or advantage to the person or persons, here
the unlicensed doctors, who allegedly paid him money. Though the
unlicensed doctors may have gotten no more than their due in the
defendant's performance of his official duties, the defendant's
receipt of money, if you find that to have occurred, for the
performance of such acts is a misuse of [p. 1243] office. Whether a
public official accepts a payment for an implicit promise of fair
treatment, if any such promise there were, there is an inherent
threat that without he payment, the public official would exercise
his discretion in an adverse manner. A claim that a public
official's actions would have been the same whether or not he
received the alleged payments is, for this purpose, irrelevant, and
is no defense to the charges contained in counts one through five
of this indictment."
App. 32.
"It is not illegal, in and of itself, for an elected legislator
to solicit or accept campaign contributions on behalf of himself or
other legislators from individuals who have a special interest in
pending legislation. The solicitation or receipt of such
contributions violates the federal extortion law -- and that's what
we're concerned with, the federal extortion law -- only when the
payment is wrongfully induced under color of official right."
"Many public officials in this country receive political
contributions from individuals who, the official knows, are
motivated by a general gratitude toward him because of his position
on certain issues important to them, or even in the hope that the
goodwill generated by such contributions will make the official
more receptive to their cause."
"The mere solicitation or receipt of such political
contributions is not, of itself, illegal."
Id. at 33.
"It would not be illegal, in and of itself, for Mr. McCormick to
solicit or accept political contributions from foreign doctors who
would benefit from this legislation."
"In order to find Mr. McCormick guilty of extortion, you must be
convinced beyond a reasonable doubt that the payment alleged in a
given count of the indictment was made by or on behalf of the
doctors with the expectation that such payment would influence Mr.
McCormick's official conduct, and with knowledge on the part of Mr.
McCormick that they were paid to him with that expectation by
virtue of the office he held."
Id. at 33-34.
[
Footnote 2/2]
"Serving constituents and supporting legislation that will
benefit the district and individuals and groups therein is the
everyday business of a legislator. It is also true that campaigns
must be run and financed. Money is constantly being solicited on
behalf of candidates, who run on platforms and who claim support on
the basis of their views and what they intend to do or have done.
Whatever ethical considerations and appearances may indicate, to
hold that legislators commit the federal crime of extortion when
they act for the benefit of constituents or support legislation
furthering the interests of some of their constituents, shortly
before or after campaign contributions are solicited and received
from those beneficiaries, is an unrealistic assessment of what
Congress could have meant by making it a crime to obtain property
from another, with his consent, 'under color of official right.' To
hold otherwise would open to prosecution not only conduct that has
long been thought to be well within the law but also conduct that,
in a very real sense, is unavoidable so long as election campaigns
are financed by private contributions or expenditures, as they have
been from the beginning of the Nation. It would require statutory
language more explicit than the Hobbs Act contains to justify a
contrary conclusion."
Ante at
500 U. S.
272-273.
[
Footnote 2/3]
"In determining the effect of this instruction on the validity
of respondent's conviction, we accept at the outset the
well-established proposition that a single instruction to a jury
may not be judged in artificial isolation, but must be viewed in
the context of the overall charge.
Boyd v. United States,
271 U. S.
104,
271 U. S. 107 (1926). While
this does not mean that an instruction, by itself, may never rise
to the level of constitutional error,
see Cool v. United
States, 409 U. S. 100 (1972), it does
recognize that a judgment of conviction is commonly the culmination
of a trial which includes testimony of witnesses, argument of
counsel, receipt of exhibits in evidence, and instruction of the
jury by the judge. Thus, not only is the challenged instruction but
one of many such instructions, but the process of instruction
itself is but one of several components of the trial which may
result in the judgment of conviction."
Cupp v. Naughten, 414 U. S. 141,
414 U. S.
146-147 (1973).
[
Footnote 2/4]
The Court cites no authority for its novel suggestion that an
appellate court's judgment affirming a criminal conviction should
be reversed even though no reversible error occurred during the
trial. Just this Term, the Court, in
Arizona v.
Fulminante, 499 U. S. 279
(1991), affirmed a state court judgment without approving of the
appellate court's analysis. In that case, the Arizona Supreme Court
had held that a criminal defendant's coerced confession should have
been suppressed, and that no harmless error analysis could be used
to save the conviction. This Court, while affirming the judgment
that the conviction had to be reversed, nevertheless held that the
harmless error rule was applicable to coerced confessions, but that
the error in the particular case was not harmless. The Court's
disapproval of a lower appellate court's analysis does not,
therefore, necessarily require a reversal of its judgment.
See
also K Mart Corp. v. Cartier, Inc., 485 U.
S. 176,
485 U. S. 185
(1988) ("Although we reject the Court of Appeals' analysis, we
nevertheless agree with its conclusion. . . .");
Chevron
U.S.A. Inc. v. Natural Resources Defense Council,
Inc., 467 U. S. 837,
467 U. S. 842
(1984) ("[S]ince this Court reviews judgments, not opinions, we
must determine whether the Court of Appeals' legal error resulted
in an erroneous judgment. . . ." (footnotes omitted)).