U.S. v. Aguon

• Decision Date: 02 April 1987
• Docket Number: No. 85-1318,85-1318
• Citation: 813 F.2d 1413
• Parties: , 22 Fed. R. Evid. Serv. 1399 UNITED STATES of America, Plaintiff-Appellee, v. Katherine Bordallo AGUON, et al., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1413

813 F.2d 1413

55 USLW 2613, 22 Fed. R. Evid. Serv. 1399

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

No. 85-1318.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 12, 1986.

Decided April 2, 1987.

James S. Brooks, Agana, Guam, and Segundo Unpingco, San Jose, Cal., for defendant-appellant.

Paul Verrier, Agana, Guam, for plaintiff-appellee.

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

Before PREGERSON, POOLE and NOONAN, Circuit Judges.

NOONAN, Circuit Judge:

Katherine B. Aguon was prosecuted for extortion in violation of the Hobbs Act, 18 U.S.C. Sec. 1951; for conspiracy to commit extortion under 18 U.S.C. Sec. 1951; for mail fraud; and for conspiracy to obstruct justice and for false statements in the grand jury investigation of her conduct. A jury acquitted her of mail fraud and convicted her of the other offenses. We reverse and remand for a new trial.

Extortion: The Jury Instructions. 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). We review a district court's decision as to particular instructions for abuse of discretion. Id.

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 confusion in the court's instructions reflected uncertainty in the law of this circuit. We have construed the Hobbs Act not to require inducement by the government official. United States v. McClelland, 731 F.2d 1438, 1440 (9th Cir.1984), cert. denied, 472 U.S. 1010, 105 S.Ct. 2708, 86 L.Ed.2d 723 (1985). 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.

This court has not, however, spelled out what is meant by "under color of official right." See, e.g., United States v. Phillips, 577 F.2d 495, 502 (9th Cir.) (bribery and extortion not necessarily mutually exclusive), cert. denied, 439 U.S. 831, 99 S.Ct 107, 58 L.Ed.2d 125 (1978). This court in McClelland did not advert to the ambiguity created when the court said that the payment need not be "induced" but that it must be obtained "under color of official right." According to the standard meaning of the latter phrase, a demand on the grounds of office is required for an act to be under color of official right. No threat and no specific inducement need be made. But a demand (which some people might think to be a form of inducement) is necessary. The confusion and ambiguity of the trial court's instructions fairly reflect the unresolved ambiguity of McClelland.

The ancient phase "under color of official right" (the equivalent of ex colore officii ) had a distinct meaning at common law. It meant "an act badly done under the countenance of an office" under "a dissembling visage of duty." Dive v. Maningham, 75 Eng.Rep. 96, 108 (Common Pleas, 1550). Without amplification the phrase is used by Blackstone to define extortion. 4 Commentaries on the Laws of England 141 (1765) ("any officer's unlawful taking, by color of his office, from any man, any money or value that is not due to him, or more than is due, or before it is due.").

As applied at common law in the United States the phrase "by or under color of office or official right" was construed to mean that the official made a demand. If money was paid voluntarily, it was not obtained by the officer "by color of his office." See, e.g., Commonwealth v. Dennie, Thacher's Criminal Cases 165 (Boston Mun.Ct.1827). "Demand" on the part of the payee, "unwillingness" on the part of the payor, were correlative. The ordinary meaning of "to extort" is "to obtain from an unwilling person." This ordinary meaning was preserved by the interpretation the courts gave to "color of office." See LaTour v. Stone, 139 Fla. 681, 190 So. 704 (1939) and the authorities cited therein; Daniels v. United States, 17 F.2d 339 (9th Cir.), cert. denied, 274 U.S. 744, 47 S.Ct. 591, 71 L.Ed. 1325 (1927).

Some courts insisted that there must be an express request for payment by an official before he could be guilty of extortion. E.g., United States v. Harned, 43 F. 376 (D.Wash.1890). Other courts found demand in a course of conduct that conveyed the official's message to his victim. E.g., Commonwealth v. Wilson, 30 Pa.Super. 26 (1906). However subtly the official communicated, a demand was what was necessary to constitute common law extortion. See Comment, "United States v. Mazzei: Hobbs Act Extortion Under Color of Official Right" 62 Va.L.Rev. 439, 441 (1976) (common law extortion consisted of "corruptly demanding").

Congress has used the terms "extort" or "extortion" in a variety of statutes without any indication of an intention to eliminate the common law requirement of demand. E.g. 18 U.S.C. Sec. 875 (transmission with intent to extort); 18 U.S.C. Sec. 876 (mailing with intent to extort); 18 U.S.C. Sec. 872 (extortion by federal officials). This last statute makes it a crime for any officer of the United States "under color of his office" to commit "extortion." As the statute uses a term already contained in the common law meaning of extortion, it has been reasoned that Congress must have meant to require more--the commission of official acts which brought pressure on the one subject to them. United States v. Sutter, 160 F.2d 754 (7th Cir.1947). The statute, so interpreted, does not abandon the common law requirement of a demand, but rather, emphasizes its necessity for proof of commission of the crime.

The Supreme Court has analogously interpreted the Travel Act, 18 U.S.C. Sec. 1952, making it a crime to travel in interstate commerce to commit "extort...