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JOHN H. EVANS v. UNITED STATES

decided: May 26, 1992.

JOHN H. EVANS, JR., PETITIONER
v.
UNITED STATES



ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT.

Stevens, J., delivered the opinion of the Court, in which White, Blackmun, and Souter, JJ., joined, in Parts I and II of which O'connor, J., joined, and in Part III of which Kennedy, J., joined. O'connor, J., and Kennedy, J., filed opinions concurring in part and concurring in the judgment. Thomas, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scalia, J., joined.

Author: Stevens

JUSTICE STEVENS delivered the opinion of the Court.

We granted certiorari, 500 U.S. -- (1991), to resolve a conflict in the Circuits over the question whether an affirmative act of inducement by a public official, such as a demand, is an element of the offense of extortion under color of official right" prohibited by the Hobbs Act, 18 U.S.C. § 1951. We agree with the Court of Appeals for the Eleventh Circuit that it is not, and therefore affirm the judgment of the court below.

I

Petitioner was an elected member of the Board of Commissioners of DeKalb County, Georgia. During the period between March 1985 and October 1986, as part of an effort by the Federal Bureau of Investigation (FBI) to investigate allegations of public corruption in the Atlanta area, particularly in the area of rezonings of property, an FBI agent posing as a real estate developer talked on the telephone and met with petitioner on a number of occasions. Virtually all, if not all, of those conversations were initiated by the agent and most were recorded on tape or video. In those conversations, the agent sought petitioner's assistance in an effort to rezone a 25-acre tract of land for high-density residential use. On July 25, 1986, the agent

handed petitioner cash totaling $7,000 and a check, payable to petitioner's campaign, for $1,000. Petitioner reported the check, but not the cash, on his state campaign-financing disclosure form; he also did not report the $7,000 on his 1986 federal income tax return. Viewing the evidence in the light most favorable to the Government, as we must in light of the verdict, see Glasser v. United States, 315 U.S. 60, 80 (1942), we assume that the jury found that petitioner accepted the cash knowing that it was intended to ensure that he would vote in favor of the rezoning application and that he would try to persuade his fellow commissioners to do likewise. Thus, although petitioner did not initiate the transaction, his acceptance of the bribe constituted an implicit promise to use his official position to serve the interests of the bribe-giver.

In a two-count indictment, petitioner was charged with extortion in violation of 18 U.S.C. § 1951 and with failure to report income in violation of 26 U.S.C. § 7206(1). He was convicted by a jury on both counts. With respect to the extortion count, the trial judge gave the following instruction:

"The defendant contends that the $8,000 he received from agent Cormany was a campaign contribution. The solicitation of campaign contributions from any person is a necessary and permissible form of political activity on the part of persons who seek political office and persons who have been elected to political office. Thus, the acceptance by an elected official of a campaign contribution does not, in itself, constitute a violation of the Hobbs Act even though the donor has business pending before the official.

"However, if a public official demands or accepts money in exchange for [a] specific requested exercise of his or her official power, such a demand or acceptance does constitute a violation of the Hobbs Act regardless of whether the payment is made in the form of a campaign contribution." App. 16-17.

In affirming petitioner's conviction, the Court of Appeals noted that the instruction did not require the jury to find that petitioner had demanded or requested the money, or that he had conditioned the performance of any official act upon its receipt. 910 F.2d 790, 796 (CA11 1990). The Court of Appeals held, however, that "passive acceptance of a benefit by a public official is sufficient to form the basis of a Hobbs Act violation if the official knows that he is being offered the payment in exchange for a specific requested exercise of his official power. The official need not take any specific action to induce the offering of the benefit." Ibid. (emphasis in original).*fn1

This statement of the law by the Court of Appeals for the Eleventh Circuit is consistent with holdings in eight other Circuits.*fn2 Two Circuits, however, have held that an affirmative act of inducement by the public official is required to support a conviction of extortion under color of official right. United States v. O'Grady, 742 F.2d 682, 687 (CA2 1984) (en banc) ( "Although receipt of benefits by a public official is a necessary element of the crime, there must also be proof that the public official did something, under color of his public office, to cause the giving of benefits"); United States v. Aguon, 851 F.2d 1158, 1166 (CA9 1988) (en banc) ( "We find ourselves in accord with the Second Circuit's conclusion that inducement is an element required for conviction under the Hobbs Act"). Because the majority view is consistent with the common-law definition of extortion, which we believe Congress intended to adopt, we endorse that position.

II

It is a familiar "maxim that a statutory term is generally presumed to have its common-law meaning." Taylor v. United States, 495 U.S. 575, 592 (1990). As we have explained, "where Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them." Morissette v. United States, 342 U.S. 246, 263 (1952).*fn3

At common law, extortion was an offense committed by a public official who took "by colour of his office"*fn4 money that was not due to him for the performance of his official duties.*fn5 A demand, or request, by the public official was not an element of the offense.*fn6 Extortion by the public official was the rough equivalent of what we would now describe as taking a bribe." It is clear that petitioner committed that offense.*fn7 The question is whether the federal statute, insofar as it applies to official extortion, has narrowed the common-law definition.

Congress has unquestionably expanded the common-law definition of extortion to include acts by private individuals pursuant to which property is obtained by means of force, fear, or threats. It did so by implication in the Travel Act, 18 U.S.C. § 1952, see United States v. Nardello, 393 U.S. 286, 289-296 (1969), and expressly in the Hobbs Act. The portion of the Hobbs Act that is relevant to our decision today provides:

"(a) Whoever in anyway or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both.

"(b) As used in this section --

"(2) The term extortion' means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." 18 U.S.C. § 1951.

The present form of the statute is a codification of a 1946 enactment, the Hobbs Act,*fn8 which amended the federal Anti-Racketeering Act.*fn9 In crafting the 1934 Act, Congress was careful not to interfere with legitimate activities between employers and employees. See H. R. Rep. No. 1833, 73rd Cong., 2d Sess., 2 (1934). The 1946 Amendment was intended to encompass the conduct held to be beyond the reach of the 1934 Act by our decision in United States v. Teamsters, 315 U.S. 521 (1942).*fn10 The Amendment did not make any significant change in the section referring to obtaining property "under color of official right" that had been prohibited by the 1934 Act. Rather, Congress intended to broaden the scope of the Anti-Racketeering Act and was concerned primarily with distinguishing between "legitimate" labor activity and labor "racketeering," so as to prohibit the latter while permitting the former. See 91 Cong. Rec. 11899-11922 (1945).

Many of those who supported the Amendment argued that its purpose was to end the robbery and extortion that some union members had engaged in, to the detriment of all labor and the American citizenry. They urged that the Amendment was not, as their opponents charged, an anti-labor measure, but rather, it was a necessary measure in the wake of this Court's decision in United States v. Teamsters.*fn11 In their view, the Supreme Court had mistakenly exempted labor from laws prohibiting robbery and extortion, whereas Congress had intended to extend such laws to all American citizens. See, e.g., 91 Cong. Rec. 11910 (1945) (remarks of Rep. Springer) ( "To my mind this is a bill that protects the honest laboring people in our country. There is nothing contained in this bill that relates to labor. This measure, if passed, willrelate to every American citizen"); id., at 11912 (remarks of Rep. Jennings) ( "The bill is one to protect the right of citizens of this country to market their products without any interference from lawless bandits").

Although the present statutory text is much broader*fn12 than the common-law definition of extortion because it encompasses conduct by a private individual as well as conduct by a public official,*fn13 the portion of the statute that refers to official misconduct continues to mirror the common-law definition. There is nothing in either the statutory text or the legislative history that could fairly be described as a "contrary direction," Morissette v. United States, 342 U.S., at 263, from Congress tonarrow the scope of the offense.

The legislative history is sparse and unilluminating with respect to the offense of extortion. There is a reference to the fact that the terms "robbery and extortion" had been construed many times by the courts and to the fact that the definitions of those terms were "based on the New York law." 89 Cong. Rec. 3227 (1943) (statement of Rep. Hobbs); see 91 Cong. Rec. 11906 (1945) (statement of Rep. Robsion). In view of the fact that the New York statute applied to a public officer "who asks, or receives, or agrees to receive" unauthorized compensation, N. Y. Penal Code § 557 (1881), the reference to New York law is consistent with an intent to apply the common-law definition. The language of the New York statute quoted above makes clear that extortion could be committed by one who merely received an unauthorized payment.*fn14 This was the statute that was in force in New York when the Hobbs Act was enacted.

The two courts that have disagreed with the decision to apply the common-law definition have interpreted the word "induced" as requiring a wrongful use of official power that "begins with the public official, not with the gratuitous actions of another." United States v. O'Grady, 742 F.2d, at 691; see United States v. Aguon, 851 F.2d, at 1166 ( inducement' can be in the overt form of a 'demand,' or in a more subtle form such as custom' or expectation"'). If we had no common-law history to guide our interpretation of the statutory text, that reading would be plausible. For two reasons, however, we are convinced that it is incorrect.

First, we think the word "induced" is a part of the definition of the offense by the private individual, but not the offense by the public official. In the case of the private individual, the victim's consent must be "induced by wrongful use of actual or threatened force, violence or fear." In the case of the public official, however, there is no such requirement. The statute merely requires of the public official that he obtain "property from another, with his consent, . . . under color of official right." The use of the word or" before under color of official right" supports this reading.*fn15

Second, even if the statute were parsed so that the word "induced" applied to the public officeholder, we do not believe the word "induced" necessarily indicates that the transaction must be initiated by the recipient of the bribe. Many of the cases applying the majority rule have concluded that the wrongful acceptance of a bribe establishes all the inducement that the statute requires.*fn16 They conclude that the coercive element is provided by the public office itself. And even the two courts that have adopted an inducement requirement for extortion under color of official right do not require proof that the inducement took the form of a threat or demand. See United States v. O'Grady, 742 F.2d, at 687; United States v. Aguon, 851 F.2d, at 1166.*fn17

Petitioner argues that the jury charge with respect to extortion, see supra, at 2 - 3, allowed the jury to convict him on the basis of the "passive acceptance of a contribution." Brief for Petitioner 24.*fn18 He contends that the instruction did not require the jury to find an element of duress such as a demand," Brief for Petitioner 22, and it did not properly describe the quid pro quo requirement for conviction if the jury found that the payment was a campaign contribution.

We reject petitioner's criticism of the instruction, and conclude that it satisfies the quid pro quo requirement of McCormick v. United States, 500 U.S. -- (1991), because the offense is completed at the time when the public official receives a payment in return for his agreement to perform specific official acts; fulfillment of the quid pro quo is not an element of the offense. We also reject petitioner's contention that an affirmative step is an element of the offense of extortion under color of official right" and need be included in the instruction.*fn19 As we explained above, our construction of the statute is informed by the common-law tradition from which the term of art was drawn and understood. We hold ...


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