U.S. v. Egan

Decision Date27 October 1988
Docket NumberNo. 86-5308,86-5308
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Walter J. EGAN, aka: Jake Egan, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Rick M. Flam, Los Angeles, Cal., for defendant-appellant.

Richard E. Drooyan, Chief Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before ALARCON, NELSON and REINHARDT, Circuit Judges.

NELSON, Circuit Judge:

This case is hereby resubmitted.

BACKGROUND

Walter Egan appeals his convictions for violating the Hobbs Act, 18 U.S.C. Sec. 1951, and the Mail Fraud statute, 18 U.S.C. Sec. 1341. Both convictions were based on Egan's activities as a member of the City Council for Carson, California. Egan organized a political action committee and then, both personally and through associates, informed individuals interested in constructing a mobile-home project in Carson that contributions to the committee would ensure his support. Egan also solicited and accepted payments made directly to himself.

The political action committee took various actions to defeat city council candidates who opposed the mobile-home project, and to support Egan's political career. Egan himself supported the projects and other related issues in city council votes.

Egan was convicted under the Hobbs Act for obtaining "property from another, without his consent, ... under color of official right." The district court instructed the jury not to convict Egan unless it found that "the defendant caused another to part with money by promising to take or withhold official action if he did so, or by threatening to take or withhold official action unless he did so." On appeal, Egan contends that this jury instruction was plain error because it failed to instruct the jury that two other elements were required for conviction: a demand for the money on the ground of office, and a specific wrongful intent. At oral argument, Egan relied primarily on our decision in United States v. Aguon, 813 F.2d 1413 (9th Cir.1987) (Aguon I). We deferred submitting this case in anticipation of Aguon being reheard by an en banc panel of this court. Our court has now reconsidered Aguon, withdrawn its original opinion, and published a new opinion. See United States v. Aguon, 851 F.2d 1158 (9th Cir.1988) (Aguon II). We therefore evaluate Egan's claims of error in light of this new decision.

Egan's mail fraud conviction was based on a charge that Egan engaged in a scheme or artifice to defraud Carson of (1) the right to have Carson's affairs conducted honestly; (2) Egan's faithful performance of duty; and (3) the right to be informed about contributions and expenditures concerning the campaign and city council election. The district court instructed the jury that, "[t]he object of the [mail fraud] scheme need not be to obtain money or property. It may be to deceive [the citizens] of the honest and faithful services of a public official or information regarding political influence or sources of contributions to political campaigns to which they are entitled." On appeal, Egan argues that his mail fraud conviction must be reversed because McNally v. United States, --- U.S. ----, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), interpreted the mail fraud statute to protect only property rights, not intangible rights such as the right to good government.

Egan was sentenced to one year in custody of the Attorney General and three years

of probation. He has served his time in custody and is now on probation.

STANDARDS OF REVIEW

Whether Hobbs Act extortion as interpreted by Aguon requires a demand on the ground of office or other inducement, and whether it requires a specific wrongful intent are questions of law reviewed on appeal de novo. See United States v. Johnson, 804 F.2d 1078, 1081 (9th Cir.1986).

Whether the jury was adequately instructed regarding these requirements must be decided by considering the instructions viewed as a whole. See United States v. Marabelles, 724 F.2d 1374, 1382 (9th Cir.1984). The instruction regarding inducement is reviewed to determine whether it misled the jury or misstated the law. See Martinelli v. City of Beaumont, 820 F.2d 1491, 1493 (9th Cir.1987). 1 The absence of an instruction regarding an intent requirement is reviewed for plain error because Egan neither objected to the absence of an intent instruction nor offered an intent instruction of his own. See United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir.1986). Although reversal for plain error is exceptional, see id. at 1367-68, it is acceptable in order to prevent a miscarriage of justice such as conviction on an improper basis. See United States v. Hudson, 564 F.2d 1377, 1380 (9th Cir.1977).

Whether McNally mandates reversal because it precludes all mail fraud convictions based on intangible rights is a question of law reviewed de novo. See United States v. Moreno-Pulido, 695 F.2d 1141, 1143 (9th Cir.1983).

DISCUSSION
I. The Requirement of Demand or Inducement

In Aguon I, we stated that Hobbs Act extortion under color of official right includes a demand on the ground of office as an element of the crime. See 813 F.2d at 1418. Because Egan's jury was not instructed about this demand element, Egan asks us to overturn his conviction.

In Aguon II, we rejected the position that extortion requires a demand on the ground of office. See Aguon II, at 1165-67. We held that "inducement is an element required for conviction under the Hobbs Act." Id. at 1165. However, inducement can include many acts that are not demands: " '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 defendant's prior conduct of his office." Id. at 1166. Thus, to be guilty of extortion, rather than mere acceptance of a bribe, the public official must do something beyond merely accepting an unsolicited payment. See id. at 1167. He must communicate to members of the public that favors are for sale. Id. Such inducement can be a demand, a request, or even a "system of expecting payments in exchange for public favors" established or acquiesced in by the public official. Id. at 1166.

The district court did not use the word "inducement" in its jury instructions. However, it instructed the jury that in order to convict, it must conclude beyond a reasonable doubt that Egan caused others to part with their money (1) by promising to take or withhold official action if they contributed; or (2) by threatening to take or withhold official action if they did not contribute.

The instruction was adequate under Aguon II. It did not permit conviction based on mere acceptance of a contribution. Rather, it required specific acts of inducement: Egan's promises that, in exchange for the contributions and payments he solicited In some respects, the instruction may even have been more generous than Aguon II demands, for it would not have permitted conviction based upon a system of accepting funds which of itself communicated a threat or promise of official action. Even so, it would have been desirable to specify the inducement requirement more clearly, if only to make appellate review simpler. In making these observations, we intend no criticism of the district judge. The instructions were crafted before Aguon I and Aguon II. In the future, guided by Aguon II and our analysis today, district courts can prepare instructions that specify that inducement is a necessary element of the offense.

he would engineer favorable votes before the city council. The jury had heard and the district judge had reviewed with them the evidence of Egan's orchestration of the scheme from the outset. The allusion to Egan's "promises" in the challenged instruction clearly referred to this evidence. We conclude therefore that the jury instruction complied with the inducement requirement announced in AguonII.

II. The Requirement of Wrongful Intent

In Aguon II, we reversed a Hobbs Act conviction in part because the jury had not been instructed adequately on the mens rea requirement for an extortion conviction. Although the jury had been instructed that "the wrongful use of otherwise valid official power converts dutiful action into extortion," 851 F.2d at 1161, it was not informed that the defendant must have known that her acts were wrongful, or that she must have intended to commit wrongful acts. In light of the fact that the instructions on inducement seemed to permit conviction based merely on acceptance of money to which the official was not entitled, without requiring any intentional act inducing payment, we found that the jury instruction did not describe the mens rea requirement correctly. Id. at 1168. In particular, the lack of a mens rea instruction, together with the confusing instructions about inducement seemed to permit Aguon's conviction based on her acceptance of funds to which she was not entitled. Because extortion requires that the official induce contributions to which she is not entitled--i.e. that she induce such contributions by wrongful acts--we could not sustain a conviction without proof of intentional wrongful acts constituting inducement.

Egan claims that his conviction must be reversed because the jury was not instructed specifically about the mens rea requirement. We disagree. This case differs greatly from Aguon II. In this case, the jury was instructed that it could not convict unless it found that Egan caused people to give him money by promising or threatening to take or withhold official action. It was also instructed that it could not convict Egan of extortion without finding that Egan intended to commit an act proscribed by the Hobbs Act. Because of this instruction, the jury could not have convicted if it believed that Egan merely...

To continue reading

Request your trial
16 cases
  • U.S. v. Freeman
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • September 22, 1993
    ...332, 121 L.Ed.2d 250 (1992) (state senator); United States v. Montoya, 945 F.2d 1068 (9th Cir.1991) (state senator); United States v. Egan, 860 F.2d 904 (9th Cir.1988) (city councilperson); United States v. Bordallo, 857 F.2d 519 (9th Cir.1988), amended on unrelated grounds, 872 F.2d 334 (9......
  • U.S. v. Walgren
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • September 13, 1989
    ...charged with violating ethical duties. McNally, 107 S.Ct. at 2882 n. 9. This Circuit rejected that distinction in United States v. Egan, 860 F.2d 904, 910 (9th Cir.1988).8 The en banc court vacated the panel decision and reversed the defendant's conviction. The court did not address the "ec......
  • U.S. v. Payne
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • September 6, 1991
    ...to the jury instructions as read. Defense counsel made no objection. RT 1402. Payne relies on a footnote in United States v. Egan, 860 F.2d 904, 907 n. 1 (9th Cir.1988) in support of his argument that his submission of a presumption of innocence instruction was sufficient to preserve the is......
  • U.S. v. Sandoval-Lopez
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • August 8, 1997
    ...for violations of § 1341. See, e.g., United States v. Mitchell, 867 F.2d 1232 (9th Cir.1989) (granting § 2255 relief); United States v. Egan, 860 F.2d 904 (9th Cir.1988) (reversing conviction on direct appeal); United States v. Dadanian, 856 F.2d 1391 (9th Cir.1988) (granting petition for r......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT