Subject:  McCORMICK v. UNITED STATES, Syllabus



 
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as
is being done in connection with this case, at the time the opinion is
issued.  The syllabus constitutes no part of the opinion of the Court but
has been prepared by the Reporter of Decisions for the convenience of the
reader.  See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES


Syllabus



McCORMICK v. UNITED STATES


certiorari to the united states court of appeals for the fourth circuit

No. 89-1918.  Argued January 8, 1991 -- Decided May 23, 1991

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 when an
official receives a campaign contribution, regardless of whether it is a
legitimate contribution.  Pp. 9-17.

    (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. 11-12.

    (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.
13-16.

    (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. 16-17.

    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. 17-18.

896 F. 2d 61, reversed and remanded.

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.  Stevens, J., filed a dissenting opinion, in which
Blackmun and O'Connor, JJ., joined.

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Subject: 89-1918 -- OPINION, McCORMICK v. UNITED STATES

 


NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


No. 89-1918



ROBERT L. McCORMICK, PETITIONER v. UNITED STATES

on writ of certiorari to the united states court of appeals for the fourth
circuit

[May 23, 1991]


    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. MDRV 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  {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.
    Following an investigation, a federal grand jury returned an indictment
charging McCormick with five counts of violating the Hobbs Act, {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. MDRV 7206(1),
{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. {4}
    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, {5} we granted certiorari. 498 U. S. --- (1990).  We reverse and
remand for further proceedings.

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, {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
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. {7}  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.
    It goes without saying that matters of intent are for the jury to
consider.  Cheek v. United States, 498 U. S. ---, --- (1991) (slip op., at
10).  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, 613-614 (1946); Cole
v. Arkansas, 333 U. S. 196, 201-202 (1948).  Cf. Kotteakos v. United
States, 328 U. S. 750, 763 (1946); Cabana v. Bullock, 474 U. S. 376, 384
(1986); Carpenters v. United States, 330 U. S. 395, 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. {8}

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). {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.
    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 (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 MDRV
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. {10}  By the same
token, we hold, as McCormick urges, that the District Court's instruction
to the same effect was error. {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 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 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
for further proceedings consistent with this opinion.
So ordered.


 
 
 
 
 

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1
    West Virginia law prohibits cash campaign contributions in excess of
$50 per person.  W. Va. Code 3-8-5d (1990).

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."

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 . . . ."

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 work 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.

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. 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 profferred 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 necesssary 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 offical 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 1.  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.

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. 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 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, 443, and n. 38
(1984).

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).

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 10, n. 4,
that the procedural posture of this case is no different than the posture
in Arizona v. Fulminante, 499 U. S. --- (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.

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.

10
    As noted previously, see supra, at 10-11, 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.

11
    In so holding, we do not resolve the conflict mentioned in n. 5, supra,
with respect to the necessity of proving inducement.





Subject: 89-1918 -- CONCUR, McCORMICK v. UNITED STATES

 


    SUPREME COURT OF THE UNITED STATES


No. 89-1918



ROBERT L. McCORMICK, PETITIONER v.
UNITED STATES


on writ of certiorari to the united states court of appeals for the fourth
circuit

[May 23, 1991]



    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. MDRV 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: MDRV 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 MDRV 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 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. MDRV 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 of ficial
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 of ficial
right" more naturally connotes some false assertion of official entitlement
to the property.  This interpretation might have the effect of making the
MDRV 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, 28 N. Y. S. 2d 796, 797 (Sup. Ct.
1941); see People v. Dio guardi, 8 N. Y. 2d 260, 273-274 (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 crimi
nalizes 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 MDRV 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. MDRV 201(b) (criminalizing bribery of and by federal
officials). {1}  Compare 18 U. S. C. MDRV 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. MDRV 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.  See, e. g., Moskal v. United
States, 498 U. S. --- (1990).  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 9, n. 5 -- I think it well to bear in mind that the
statute may not exist.


 
 
 
 
 

------------------------------------------------------------------------------
1
    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.





Subject: 89-1918 -- DISSENT, McCORMICK v. UNITED STATES

 


    SUPREME COURT OF THE UNITED STATES


No. 89-1918



ROBERT L. McCORMICK, PETITIONER v.
UNITED STATES


on writ of certiorari to the united states court of appeals for the fourth
circuit

[May 23, 1991]



    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. MDRV 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 (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 Van dergrift
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 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.
    "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. {1}


    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 7, 11, 13-14, 15, 16.


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. {2}  In my 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. {3}  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.
    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 a payment for an implicit
promise of fair teatment, 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. {4}  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.  I
respectfully dissent.
 
 
 
 
 
 

------------------------------------------------------------------------------
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 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.

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 13-14.

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, 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, 146-147 (1973).

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, --- U. S. --- (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 harmlesserror
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 (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 (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)).
