U.S. v. Aguon

• Decision Date: 01 July 1988
• Docket Number: No. 85-1318,85-1318
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Katherine Bordallo AGUON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1158

851 F.2d 1158

57 USLW 2063

UNITED STATES of America, Plaintiff-Appellee, v. Katherine Bordallo AGUON, Defendant-Appellant.

No. 85-1318.

United States Court of Appeals,

Ninth Circuit.

Argued En Banc and Submitted Jan. 13, 1988.

Decided July 1, 1988.

Segundo Unpingco, Pacific Lawyers Group, San Jose, Cal., for defendant-appellant.

Karen Skrivseth, U.S. Dept. of Justice, Washington, D.C., and K. William O'Connor, U.S. Atty., District of Guam, Agana, Guam, for plaintiff-appellee.

Appeal from the United States District Court for the District of Guam.

Before GOODWIN, Chief Judge, and BROWNING, WALLACE, HUG, TANG, FARRIS, NELSON, NORRIS, REINHARDT, WIGGINS and O'SCANNLAIN, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

A three-judge panel of this court reversed Aguon's convictions for extortion and conspiracy in violation of the Hobbs Act, 18 U.S.C. Sec. 1951 and her convictions for making false statements before a grand jury and conspiracy to obstruct justice. United States v. Aguon, 813 F.2d 1413 (9th Cir.1987) (Aguon I ). At the suggestion of the government, the case was taken en banc. 831 F.2d 1487 (9th Cir.1987).

Upon rehearing en banc, we are presented with three questions:

(1) whether we should retain the rule established in United States v. McClelland, 731 F.2d 1438 (9th Cir.1984), cert. denied, 472 U.S. 1010, 105 S.Ct. 2708, 86 L.Ed.2d 723 (1985), which held that "inducement" need not be proven in an extortion conviction when property obtained from another by a public official was obtained "under color of official right,"

(2) whether the jury instructions on mens rea were adequate, and (3) whether bias was established when a juror had previously committed an offense similar to the one being tried.

As did the three-judge panel, we reverse and remand to the district court. In doing so, we overrule McClelland because we conclude that proof of "inducement" is a prerequisite to conviction of extortion. As a separate ground for reversal of the Hobbs Act convictions, we adopt the panel's view that the mens rea instructions were inadequate. Contrary to the panel, we find no juror bias proven and therefore we affirm the non-Hobbs Act convictions.

While we adopt extensive portions of the three-judge panel's opinion, we modify it in several respects. Therefore, we withdraw the opinion of this court in Aguon I at 813 F.2d 1413 and replace it herewith.

I Extortion: The Jury Instructions

The relevant facts and proceedings regarding the jury instructions on the extortion charge are taken verbatim from Judge Noonan's opinion in Aguon I:

Katherine B. Aguon, the defendant, was the Director of the Department of Education (DOE) of Guam between February 1980 and December 1982. A co-defendant was Pyong Hok Han, a Korean businessman, whose company, Hando Enterprises, Inc., was a vendor to DOE. Han testified that he gave Aguon dresses a washing machine, a gas dryer, a microwave oven, and a refrigerator "to make her happy." He gave them without payment because "like I said, I'm vendor it's to me hard to ask money" and because "I don't want the people don't like my, don't like company to do business with DOE." He testified that he also bought a carpet selected by Aguon in Los Angeles and installed it in her house in Guam. He did this so he would have "no trouble" with his maintenance contract with DOE. Finally, he testified that he also put central air-conditioning in her home. The total value of these offerings was at least $8,500. Aguon was charged under Count Two of the indictment with having "knowingly and wilfully" committed extortion under 18 U.S.C. Sec. 1951 in that she "did obtain and cause to be obtained" these goods, and she was convicted of that crime. ¹

At the beginning of the case before any evidence was introduced, the trial court read what it characterized as instructions "which go to the essential elements of the criminal conduct that is charged here" in order to give the jury "some feel for the nature of the case." The jury was told that the government had "to prove the case beyond a reasonable doubt." The jury was told that to prove extortion the government would have to prove that the defendant "caused or attempted to cause another to part with money or property by threatening to withhold official action unless he did so." The giving of preliminary instructions was well within the practice permitted by this circuit. Manual of Model Jury Instructions for the Ninth Circuit 29 (1985).

The court's instructions to the jury at the close of the case were that the government must prove beyond a reasonable doubt "three essential elements " in its case:

First, that the defendant induced another under color of official right to part with property.

Second, that she did so by extortion as defined in these instructions.

Third, that in doing so, interstate commerce was delayed, interrupted or adversely affected. [Italics supplied]

The court defined "wrongful" as "the obtaining of property by an alleged extortionist to which he has no lawful claim." "Therefore," the court said, proof "that the defendant obtained property under color of official right and that he was not lawfully entitled to this property" was "sufficient to establish that this property was wrongfully obtained by the defendant."

As to "color of official right," the court charged:

This type of extortion does not require proof of any specific acts on the part of the public official demonstrating force, threats, use of fear or inducement.

The wrongful use of otherwise valid official power converts dutiful action into extortion ...

So long as the motivation for the payment focuses on the recipient's office, the conduct falls within the ambit of Section 1951 of Title 18, United States Code. [Italics supplied]

We determine the adequacy of jury instructions by examining them in their entirety. United States v. Feldman, 788 F.2d 544, 555 (9th Cir.1986) [, cert. denied, --- U.S. ----, 107 S.Ct. 955, 93 L.Ed.2d 1003 (1987) ]. We review a district court's decision as to particular instructions for abuse of discretion. Id.

II

Extortion: The Meaning of "Induced"

We agree with the three-judge panel's conclusion that:

The instructions in this case were fundamentally flawed. First, in line with the court's "preliminary instructions," they told the jury that the defendant had to "induce" the payment. Then the instructions told the jury that no proof of acts demonstrating "inducement" was necessary. The government now argues that the instruction requiring proof of inducement was more favorable to the defendant than the law required, so she lost nothing in having the instruction canceled by the later instruction. But the instructions are contradictory. The difficulty with contradictory instructions is the confusion they must have generated in the jury. Did it matter whether the payments were induced or not induced? The jury was left without guidance on this question.

The Aguon I opinion suggests a reason for the confusion in the trial court's instructions:

We have construed the Hobbs Act not to require inducement by the government official.... McClelland, 731 F.2d [at] 1440 [citation omitted]. The court has observed that the statutory definition of extortion is in the disjunctive: "induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right" (emphasis supplied). This construction of the Hobbs Act is concurred in by almost all other circuits. Id. at 1439. This court has held that violations of the Hobbs Act "may be proved by demonstrating nothing more than that the payment in question was obtained 'under color of official right.' " Id. at 1440.

But here we must part company with the analysis of Aguon I. As Judge Haynsworth stated, and we agree, "[t]he meaning of 'induced ... under color of official right' is the question in this case." United States v. Paschall, 772 F.2d 68, 71 (4th Cir.1985) (emphasis supplied), cert. denied, 475 U.S. 1119, 106 S.Ct. 1635, 90 L.Ed.2d 181 (1986). To answer this question we shall examine the grammatical construction, plain meaning, legislative history, and judicial interpretation of the Hobbs Act.

A Grammatical Construction

In United States v. Hathaway, 534 F.2d 386, 393 (1st Cir.), cert. denied, 429 U.S. 819, 97 S.Ct. 64, 50 L.Ed.2d 79 (1976), the First Circuit focused on the disjunctive nature of the statutory definition of "extortion" at 18 U.S.C. Sec. 1951(b)(2) and particularly emphasized the use of the word "or" preceding the last phrase, "under color of official right." Our court in McClelland purported to follow this reasoning and concluded that inducement need not be shown in a Hobbs Act prosecution of a public official. McClelland, 731 F.2d at 1440. But, in a very recent post-Hathaway opinion, the First Circuit states the disjunction more accurately: "[w]e have interpreted the definition in the disjunctive, finding that the prosecution can establish a violation by showing that a defendant induced payment either through use of actual or threatened force, violence or fear, or under color of official right." United States v. Bucci, 839 F.2d 825, 827 (1st Cir., 1988) (emphasis in original). We believe that the First Circuit's newly added emphasis on the word "either" is consistent with our view of statutory construction.

Upon close grammatical analysis, it appears that, correctly parsed, the verb "induced" is modified by two prepositional phrases: "by wrongful use of actual or threatened force, violence, or fear," and "under color of official right." Both prepositional phrases modify the one verb, "induced." An accurate grammatical reading is that several methods of inducement are permitted by the Act. The prepositions "by" and "under" are parallel. The prepositional phrases have a parallel disjunctive function in modifying "induced." Only "induced" payments are thus proscribed. See Comment, Prosecuting Public Officials Under the Hobbs Act: Inducement...