Evans v. United States

Decision Date26 May 1992
Docket NumberNo. 90-6105,90-6105
Citation112 S.Ct. 1881,119 L.Ed.2d 57,504 U.S. 255
PartiesJohn H. EVANS, Jr., Petitioner v. UNITED STATES
CourtU.S. Supreme Court
Syllabus

As part of an investigation of allegations of public corruption in Georgia, a Federal Bureau of Investigation agent posing as a real estate developer initiated a number of conversations with petitioner Evans, an elected member of the DeKalb County Board of Commissioners. The agent sought Evans' assistance in an effort to rezone a tract of land and gave him, inter alia, $7,000 in cash, which Evans failed to report on his state campaign-financing disclosure form or his federal income tax return. Evans was convicted in the District Court of, among other things, extortion under the Hobbs Act, which is "the obtaining of property from another, . . . induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right," 18 U.S.C. § 1951(b)(2). In affirming the conviction, the Court of Appeals acknowledged that the trial court's jury instruction did not require a finding that Evans had demanded or requested the money, or that he had conditioned the performance of any official act upon its receipt. However, it held that "passive acceptance of the benefit" was sufficient for a Hobbs Act violation if the public official knew that he was being offered the payment in exchange for a specific requested exercise of his official power.

Held: An affirmative act of inducement by a public official, such as a demand, is not an element of the offense of extortion "under color of official right" prohibited by the Hobbs Act. Pp. 259-271.

(a) Congress is presumed to have adopted the common-law definition of extortion—which does not require that a public official make a demand or request—unless it has instructed otherwise. See Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 249-250, 96 L.Ed. 288. While the Act expanded the common-law definition to encompass conduct by a private individual as well as a public official, the portion of the Act referring to official misconduct continues to mirror the common-law definition. There is nothing in the sparse legislative history or the statutory text that could fairly be described as a "contrary direction," ibid., from Congress to narrow the offense's scope. The inclusion of the word "induced" in the definition does not require that the wrongful use of official power begin with a public official. That word is part of the definition of extortion by a private individual but not by a public official, and even if it did apply to a public official, it does not necessarily indicate that a transaction must be initiated by the bribe's recipient. Pp. 259-266.

(b) Evans' criticisms of the jury instruction—that it did not properly describe the quid pro quo requirement for conviction if the jury found that the payment was a campaign contribution, and that it did not require the jury to find duress—are rejected. The instruction satisfies the quid pro quo requirement of McCormick v. United States, 500 U.S. ----, 111 S.Ct. 1807, 114 L.Ed.2d 307, because the offense is completed when the public official receives payment in return for his agreement to perform specific official acts; fulfillment of the quid pro quo is not an element of the offense. Nor is an affirmative step on the official's part an element of the offense on which an instruction need be given. Pp. 267-268.

(c) The conclusion herein is buttressed by the facts that many courts have interpreted the statute in the same way, and that Congress, although aware of this prevailing view, has remained silent. Pp. 268-269.

910 F.2d 790 (CA11 1990), affirmed.

STEVENS, J., delivered the opinion of the Court, in which WHITE, BLACKMUN, and SOUTER, JJ., joined, in Parts I and II of which O'CONNOR, J., joined, and in Part III of which KENNEDY, J., joined. O'CONNOR, J., and KENNEDY, J., filed opinions concurring in part and concurring in the judgment. THOMAS, J., filed a dissenting opinion, in which REHNQUIST, C.J., and SCALIA, J., joined.

C. Michael Abbott, Atlanta, Ga., for petitioner.

William C. Bryson, Washington, D.C., for respondent.

Justice STEVENS delivered the opinion of the Court.

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

I

Petitioner was an elected member of the Board of Commissioners of DeKalb County, Georgia. During the period between March 1985 and October 1986, as part of an effort by the Federal Bureau of Investigation (FBI) to investigate allegations of public corruption in the Atlanta area, particularly in the area of rezonings of property, an FBI agent posing as a real estate developer talked on the telephone and met with petitioner on a number of occasions. Virtually all, if not all, of those conversations were initiated by the agent and most were recorded on tape or video. In those conversations, the agent sought petitioner's assistance in an effort to rezone a 25-acre tract of land for high-density residential use. On July 25, 1986, the agent handed petitioner cash totaling $7,000 and a check, payable to petitioner's campaign, for $1,000. Petitioner reported the check, but not the cash, on his state campaign-financing disclosure form; he also did not report the $7,000 on his 1986 federal income tax return. Viewing the evidence in the light most favorable to the Government, as we must in light of the verdict, see Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469-470, 86 L.Ed. 680 (1942), we assume that the jury found that petitioner accepted the cash knowing that it was intended to ensure that he would vote in favor of the rezoning application and that he would try to persuade his fellow commissioners to do likewise. Thus, although petitioner did not initiate the transaction, his acceptance of the bribe constituted an implicit promise to use his official position to serve the interests of the bribe-giver.

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

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

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

In affirming petitioner's conviction, the Court of Appeals noted that the instruction did not require the jury to find that petitioner had demanded or requested the money, or that he had conditioned the performance of any official act upon its receipt. 910 F.2d 790, 796 (CA11 1990). The Court of Appeals held, however, that "passive acceptance of a benefit by a public official is sufficient to form the basis of a Hobbs Act violation if the official knows that he is being offered the payment in exchange for a specific requested exercise of his official power. The official need not take any specific action to induce the offering of the benefit." Ibid. (emphasis in original).1

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

II

It is a familiar "maxim that a statutory term is generally presumed to have its common-law meaning." Taylor v. United States, 495 U.S. 575, 592, 110 S.Ct. 2143, 2155, 109 L.Ed.2d 607 (1990). As we have explained, "where Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a depar- ture from them." Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 249-250, 96 L.Ed. 288 (1952).3

At common law, extortion was an offense committed by a public official who took "by colour of his office" 4 money that was not due to him...

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