ROBERT L. McCORMICK, PETITIONER v. UNITED STATES
No. 89-1918
SUPREME COURT OF THE UNITED STATES
500 U.S. 257
January 8, 1991, Argued
May 23, 1991, Decided
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. 276. STEVENS, J., filed a dissenting opinion, in which
BLACKMUN and O'CONNOR, JJ., joined, post, p. 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 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, n1 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.
n1 West Virginia law prohibits
cash campaign contributions in excess of $ 50 per person. W. Va. Code § 3-8-5d
(1990).
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.
Following an investigation, a federal grand jury returned an indictment charging
McCormick with five counts of violating the Hobbs Act, n2 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), n3 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. n4
n2 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."
n3 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 . . . ."
n4 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 that 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.
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 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 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 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 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, n5 we
granted certiorari. 498 U.S. 807 (1990). We reverse and remand for further
proceedings.
n5 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.
90-6105; 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 "it 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 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.
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, n6 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 interpreted and applied in those contexts. In
two respects, however, we agree with McCormick that the Court of Appeals erred.
n6 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. Braasch, 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 UCLA L. 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 and is untimely, and we do not address it further.
Berkemer v. McCarty, 468 U.S. 420, 443, 82 L. Ed. 2d 317, 104 S. Ct. 3138, and
n.38 (1984).
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.
n7 Instead, the Court of Appeals, after announcing a rule of law for determining
when payments are made under color of official right, 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.
n7 "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).
It goes without saying that matters of intent are for the jury to consider.
Cheek v. United States, 498 U.S. 192, 203, 112 L. Ed. 2d 617, 111 S. Ct. 604
(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 presents
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, 613-614, 90 L. Ed. 350, 66 S. Ct. 402 (1946); Cole v. Arkansas,
333 U.S. 196, 201-202, 92 L. Ed. 644, 68 S. Ct. 514 (1948). Cf. Kotteakos v.
United States, 328 U.S. 750, 763, 90 L. Ed. 1557, 66 S. Ct. 1239 (1946); Cabana
v. Bullock, 474 U.S. 376, 384, 88 L. Ed. 2d 704, 106 S. Ct. 689 (1986);
Carpenters v. United States, 330 U.S. 395, 408, 91 L. Ed. 973, 67 S. Ct. 775
(1947). If for no other reason, therefore, the judgment of the Court of Appeals
must be reversed and the case remanded for further proceedings. n8
n8 JUSTICE STEVENS apparently
refuses to recognize that the Court of Appeals affirmed McCormick's conviction
on legal and factual theories never tried before 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 289, n.4, that the procedural posture of this case is no different than
the posture in Arizona v. Fulminante, 499 U.S. 279, 113 L. Ed. 2d 302, 111 S.
Ct. 1246 (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 from 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.
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). n9 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 "further," 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.
n9 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 Requested 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.
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 than the Hobbs Act contains to justify a contrary
conclusion. Cf. United States v. Enmons, 410 U.S. 396, 411, 35 L. Ed. 2d 379, 93
S. Ct. 1007 (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 § 9-85A.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."
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. n10 By the same token, we hold, as McCormick
urges, that the District Court's instruction to the same effect was error. n11
n10 As noted previously, see
supra, at 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.
n11 In so holding, we do not resolve the conflict mentioned in n.5, supra, with
respect to the necessity of proving inducement.
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 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 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.
V
Accordingly, we reverse the judgment of the Court of Appeals and remand the case
for further proceedings consistent with this opinion.
So ordered.
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.
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 quos. 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 1960's, 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 the
victim"); United States v. Addonizio, 451 F.2d 49, 72 (CA3 1971) ("While 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 "so 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 Geo. 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 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 (App. Div.
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. 661, 661-663 (N. Y. 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). * 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.
* 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.
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
267, n.5 -- I think it well to bear in mind that the statute may not exist.
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:
"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, 80, 86 L.
Ed. 680, 62 S. Ct. 457 (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 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.
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 nor 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.
"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." App. 20-22. n1
n1 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 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 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 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.
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.'" Ante, at 265;
see also ante, at 269, 272-273, 274-275.
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. n2 In
my opinion this is a gross misreading of that sentence in the context of the
entire set of instructions.
n2 "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 272-273.
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. n3 But even if they were ambiguous, or
subject to improvement, they certainly do not provide a basis for reversing the
conviction when the petitioner failed to advise the District Court of an error
this Court now believes it has detected.
n3 "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, 107, 70 L. Ed. 857, 46 S.
Ct. 442 (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, 34 L. Ed. 2d 335, 93 S. Ct. 354 (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, 146-147, 38 L. Ed. 2d 368, 94 S. Ct. 396 (1973).
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.
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 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. n4 It is sufficient that an affirmance of
McCormick's conviction rest on the legal and factual theories actually presented
to the jury, whether or not these theories were the ones relied upon by the
Court of Appeals.
n4 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, 113
L. Ed. 2d 302, 111 S. Ct. 1246 (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, 185, 99 L. Ed. 2d 151, 108 S. Ct. 950 (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, 842, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984)
("Since this Court reviews judgments, not opinions, we must determine whether
the Court of Appeals' legal error resulted in an erroneous judgment . . ."
(footnote omitted)).
I respectfully dissent.