U.S. v. McClelland, 83-1220
| Decision Date | 01 May 1984 |
| Docket Number | No. 83-1220,83-1220 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Joseph McCLELLAND, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
N. Patrick Flanagan, Deputy Federal Public Defender, Reno, Nev., for defendant-appellant.
Edward R.J. Kane, Las Vegas, Nev., for plaintiff-appellee.
Appeal from the United States District Court for the District of Nevada.
Before WISDOM, * SKOPIL, and NORRIS, Circuit Judges.
On March 4, 1981, appellant, Reno City Councilman Joseph McClelland, was contacted by an agent of the Federal Bureau of Investigation. The agent presented himself as a representative of Doctors Fiduciary Trust, a fictitious organization composed of Arizona doctors who had pooled their funds to create an investment trust.
A series of subsequent telephone calls and meetings culminated in a meeting at Carson City on March 28, 1981. At this meeting, appellant accepted a check for $3,750 made out to Associated Consultants, Inc., a corporation owned by appellant.
On March 29, 1983, appellant was indicted for attempted interference with commerce by extortion, a violation of 18 U.S.C. Sec. 1951. Appellant was subsequently tried and convicted. He now appeals.
Appellant first of all contends that under 18 U.S.C. Sec. 1951 the government must prove that he acted in some manner to induce the payment he received and that consequently the trial court committed reversible error when it instructed the jury that "[i]t is not necessary for the Government to show that the defendant induced the extortionate payment." We disagree.
Every circuit which has considered whether inducement is an essential element of a section 1951 violation has ruled that it is not. See, e.g., United States v. Jannotti, 673 F.2d 578, 594-96 (3d Cir.1982) (en banc), cert. denied, 457 U.S. 1106, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982); United States v. Butler, 618 F.2d 411, 417-20 (6th Cir.), cert. denied, 447 U.S. 927, 100 S.Ct. 3024, 65 L.Ed.2d 1121 (1980); United States v. Hall, 536 F.2d 313, 320-21 (10th Cir.), cert. denied, 429 U.S. 919, 97 S.Ct. 313, 50 L.Ed.2d 285 (1976); 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); United States v. Braasch, 505 F.2d 139, 151 n. 8 (7th Cir.1974), cert. denied, 421 U.S. 910, 95 S.Ct. 1561, 43 L.Ed.2d 775 (1975).
The statute is clearly phrased in the disjunctive: "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." Sec. 1951(b)(2) (Emphasis supplied). Further, a disjunctive reading comports with the historical development of the crime of extortion. The "under color of official right" language reflects the common law definition of extortion, which could be committed only by a public official's corrupt taking of a fee under color of his office and did not require proof of threat, fear, or duress.... The misuse of public office is said to supply the element of coercion.... Threats, fear and duress became express elements only when the crime was later broadened to include actions by private individuals, who had no official power to wield over their victims.
Hathaway, 534 F.2d at 393. Thus, we hold that where the defendant is a public official, the government need not show inducement and extortion may be proved by demonstrating nothing more than that the payment in question was obtained "under color of official right." 1
Appellant argues that even if inducement is not an essential element of a section 1951 violation, the indictment in this case alleged inducement and it was thus error for the trial court to instruct the jury that it was unnecessary to find inducement. Whatever the merit of appellant's characterization of the indictment, a variance between the indictment and the case sent to the jury does not constitute reversible error unless the error prejudiced the defendant's substantial rights. Fed.R.Crim.P. 52(a); United States v. Mastelotto, 717 F.2d 1238, 1246 (9th Cir.1983); United States v. Gordon, 641 F.2d 1281 (9th Cir.), cert. denied, 454 U.S. 859, 102 S.Ct. 312, 70 L.Ed.2d 156 (1981). Appellant makes no specific allegations of prejudice, and no...
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U.S. v. Aguon
...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 defin......
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U.S. v. Aguon
...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 ......
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U.S. v. McClelland
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US v. McClelland
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