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SUPREME COURT OF THE UNITED STATES
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No. 90-6105
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JOHN H. EVANS, Jr., PETITIONER v.
UNITED STATES
on writ of certiorari to the united states court of
appeals for the eleventh circuit
[May 26, 1992]

  Justice Thomas, with whom The Chief Justice and
Justice Scalia join, dissenting.
  The Court's analysis is based on the premise, with which
I fully agree, that when Congress employs legal terms of
art, it ```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.'''  Ante, at 4 (quoting Morissette
v. United States, 342 U. S. 246, 263 (1952)).  Thus, we
presume, Congress knew the meaning of common-law
extortion when it enacted the Hobbs Act, 18 U. S. C. 1951.
Unfortunately, today's opinion misapprehends that meaning
and misconstrues the statute.  I respectfully dissent.

                            I
  Extortion is one of the oldest crimes in Anglo-American
jurisprudence.  See 3 E. Coke, Institutes *541.  Hawkins
provides the classic common-law definition: ``[I]t is said,
that Extortion in a large Sense signifies any Oppression
under Colour of Right; but that in a strict Sense it signifies
the Taking of Money by any Officer, by Colour of his Office,
either where none at all is due, or not so much is due, or
where it is not yet due.''  1 W. Hawkins, Pleas of the Crown
170 (2d ed. 1724) (emphasis added).  Blackstone echoed that
definition: ``[E]xtortion is an abuse of public justice, which
consists in any officer's unlawfully taking, by colour of his
office, from any man, any money or thing of value, that is
not due to him, or more than is due, or before it is due.''  4
W. Blackstone, Commentaries on the Laws of England 141
(1769) (emphasis added).
  These definitions pose, but do not answer, the critical
question: what does it mean for an official to take money
``by colour of his office''?  The Court fails to address this
question, simply assuming that common-law extortion
encompassed any taking by a public official of something of
value that he was not ``due.''  Ante, at 4-5.
  The ``under color of office'' element of extortion, however,
had a definite and well-established meaning at common
law.  ``At common law it was essential that the money or
property be obtained under color of office, that is, under the
pretense that the officer was entitled thereto by virtue of his
office.  The money or thing received must have been
claimed or accepted in right of office, and the person paying
must have yielded to official authority.''  3 R. Anderson,
Wharton's Criminal Law and Procedure 1393, pp. 790-791
(1957) (emphasis added).  Thus, although the Court
purports to define official extortion under the Hobbs Act by
reference to the common law, its definition bears scant
resemblance to the common-law crime Congress presumably
codified in 1946.
                            A
  The Court's historical analysis rests upon a theory set
forth in one law review article.  See ante, at 4-5, and nn.
4-6 (citing Lindgren, The Elusive Distinction Between
Bribery and Extortion: From the Common Law to the
Hobbs Act, 35 UCLA L. Rev. 815 (1988)).  Focusing on early
English cases, the article argues that common-law extortion
encompassed a wide range of official takings, whether by
coercion, false pretenses, or bribery.  Whatever the merits
of that argument as a description of early English common
law, it is beside the point here-the critical inquiry for our
purposes is the American understanding of the crime at the
time the Hobbs Act was passed in 1946.  Cf. Harmelin v.
Michigan, 501 U. S. --, -- (slip op., at 15-16) (1991)
(plurality opinion) (English historical background is
relevant in determining the meaning of a constitutional
provision, but the ``ultimate question'' is the meaning of
that provision to the Americans who adopted it).
  A survey of 19th and early 20th century cases construing
state extortion statutes in light of the common law makes
plain that the offense was understood to involve not merely
a wrongful taking by a public official, but a wrongful taking
under a false pretense of official right.  A typical case is
Collier v. State, 55 Ala. 125 (1877).  The defendant there
was a local prosecutor who, for a fee, had given legal advice
to a criminal suspect.  The Alabama Supreme Court
rejected the State's contention that the defendant's receipt
of the fee-even though improper-amounted to ``extortion,''
because he had not taken the money ``under color of his
office.''  ``The object of the [extortion] statute is . . . not the
obtaining money by mere impropriety of conduct, or by
fraud, by persons filling official position.''  Id., at 127.
Rather, the court explained, ``[a] taking under color of office
is of the essence of the offense.  The money or thing received
must have been claimed, or accepted, in right of office, and
the person paying must have been yielding to official
authority.''  Id., at 128 (emphasis added).  That a public
official took money he was not due was not enough.
``[T]hough the defendant may have been guilty of official
infidelity, the wrong was to the State only, and no wrong
was done the person paying the money.  That wrong is not
punishable under this indictment.  Private and public
wrong must concur, to constitute extortion.''  Ibid.  Numer-
ous decisions from other jurisdictions confirm that an
official obtained a payment ``under color of his office''
only-as the phrase suggests-when he used the office to
assert a false pretense of official right to the payment.
Because the Court misapprehends the ``color of office''
requirement, the crime it describes today is not the com-
mon-law crime that Congress presumably incorporated into
the Hobbs Act.  The explanation for this error is clear.  The
Court's historical foray has the single-minded purpose of
proving that common-law extortion did not include an
element of ``inducement''; in its haste to reach that conclu-
sion, the Court fails to consider the elements that common-
law extortion did include.  Even if the Court were correct
that an official could commit extortion at common law
simply by receiving (but not ``inducing'') an unlawful
payment, it does not follow either historically or logically
that an official automatically committed extortion whenever
he received such a payment.
The Court, therefore, errs in asserting that common-law
extortion is the ``rough equivalent of what we would now
describe as `taking a bribe,''' ante, at 5.  Regardless of
whether extortion contains an ``inducement'' requirement,
bribery and extortion are different crimes.  An official who
solicits or takes a bribe does not do so ``under color of
office''; i.e., under any pretense of official entitlement.  ``The
distinction between bribery and extortion seems to be that
the former offense consists in offering a present or receiving
one, the latter in demanding a fee or present by color of
office.''  State v. Pritchard, 107 N.C. 921, 929, 12 S.E. 50, 52
(1890) (emphasis added).  Where extortion is at issue, the
public official is the sole wrongdoer; because he acts ``under
color of office,'' the law regards the payor as an innocent
victim and not an accomplice.  See, e.g., 1 W. Burdick, Law
of Crime 273-275, pp. 392-396 (1946).  With bribery, in
contrast, the payor knows the recipient official is not
entitled to the payment; he, as well as official, may be
punished for the offense.  See, e.g., id., 288-292, pp.
426-436.  Congress is well aware of the distinction between
the crimes; it has always treated them separately.  Com-
pare 18 U. S. C. 872 (``Extortion by officers or employees
of the United States'' (emphasis added), which criminalizes
extortion by federal officials, and makes no provision for
punishment of the payor), with 18 U. S. C. 201 (``Bribery
of public officials and witnesses'' (emphasis added), which
criminalizes bribery of and by federal officials).  By
stretching the bounds of extortion to make it encompass
bribery, the Court today blurs the traditional distinction
between the crimes.

                 B
Perhaps because the common-law crime-as the Court
defines it-is so expansive, the Court, at the very end of its
opinion, appends a qualification: ``We hold today that the
Government need only show that a public official has
obtained a payment to which he was not entitled, knowing
that the payment was made in return for official acts.''
Ante, at 13 (emphasis added).  This quid pro quo require-
ment is simply made up.  The Court does not suggest that
it has any basis in the common law or the language of the
Hobbs Act, and I have found no treatise or dictionary that
refers to any such requirement in defining ``extortion.''
Its only conceivable source, in fact, is our opinion last
Term in McCormick v. United States, 500 U. S. -- (1991).
Quite sensibly, we insisted in that case that, unless the
Government established the existence of a quid pro quo, a
public official could not be convicted of extortion under the
Hobbs Act for accepting a campaign contribution.  We did
not purport to discern that requirement in the common law
or statutory text, but imposed it to prevent the Hobbs Act
from effecting a radical (and absurd) change in American
political life.  ``To hold otherwise would open to prosecution
not only conduct that has long been thought to be well
within the law but also conduct that in a very real sense is
unavoidable so long as election campaigns are financed by
private contributions or expenditures, as they have been
from the beginning of the Nation.  It would require statuto-
ry language more explicit than the Hobbs Act contains to
justify a contrary conclusion.''  Id., at 14-15.  We expressly
limited our holding to campaign contributions.  Id., at 16,
n. 10 (``[W]e do not decide whether a quid pro quo require-
ment exists in other contexts, such as when an elected
official receives gifts, meals, travel expenses, or other items
of value'').
Because the common-law history of extortion was neither
properly briefed nor argued in McCormick, see 500 U. S., at
10, n. 6; id., at 1 (Scalia, J., concurring), the quid pro quo
limitation imposed there represented a reasonable first step
in the right direction.  Now that we squarely consider that
history, however, it is apparent that that limitation was in
fact overly modest: at common law, McCormick was
innocent of extortion not because he failed to offer a quid
pro quo in return for campaign contributions, but because
he did not take the contributions under color of official
right.  Today's extension of McCormick's reasonable (but
textually and historically artificial) quid pro quo limitation
to all cases of official extortion is both unexplained and
inexplicable-except insofar as it may serve to rescue the
Court's definition of extortion from substantial overbreadth.

                II
As serious as the Court's disregard for history is its
disregard for well-established principles of statutory
construction.  The Court chooses not only the harshest
interpretation of a criminal statute, but also the interpreta-
tion that maximizes federal criminal jurisdiction over state
and local officials.  I would reject both choices.

                 A
The Hobbs Act defines ``extortion'' as ``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.''  18 U. S. C. 1951(b)(2)
(emphasis added).  Evans argues, in part, that he did not
``induce'' any payment.  The Court rejects that argument,
concluding that the verb ``induced'' applies only to the first
portion of the definition.  Ante, at 10.  Thus, according to
the Court, the statute should read: ```The term ``extortion''
means the obtaining of property from another, with his
consent, either [1] induced by wrongful use of actual or
threatened force, violence, or fear, or [2] under color of
official right.'''  Ante, at 10, n. 15.  That is, I concede, a
conceivable construction of the words.  But it is-at the very
least-forced, for it sets up an unnatural and ungram-
matical parallel between the verb ``induced'' and the
preposition ``under.''
The more natural construction is that the verb ``induced''
applies to both types of extortion described in the statute.
Thus, the unstated ``either'' belongs after ``induced'': ``The
term `extortion' means the obtaining of property from
another, with his consent, induced either [1] by wrongful
use of actual or threatened force, violence, or fear, or [2]
under color of official right.''  This construction comports
with correct grammar and standard usage by setting up a
parallel between two prepositional phrases, the first
beginning with ``by''; the second with ``under.''
Our duty in construing this criminal statute, then, is
clear:  ``The Court has often stated that when there are two
rational readings of a criminal statute, one harsher than
the other, we are to choose the harsher only when Congress
has spoken in clear and definite language.''  McNally v.
United States, 483 U. S. 350, 359-360 (1987).  See also
United States v. Wiltberger, 5 Wheat. 76, 95 (1820) (Mar-
shall, C.J.).  Because the Court's expansive interpretation
of the statute is not the only plausible one, the rule of
lenity compels adoption of the narrower interpretation.
That rule, as we have explained on many occasions, serves
two vitally important functions:
``First, `a fair warning should be given to the world in
language that the common world will understand, of
what the law intends to do if a certain line is passed.
To make the warning fair, so far as possible the line
should be clear.'  Second, because of the seriousness of
criminal penalties, and because criminal punishment
usually represents the moral condemnation of the
community, legislatures and not courts should define
criminal activity.''  United States v. Bass, 404 U. S. 336,
348 (1971) (citations omitted; footnote omitted).
Given the text of the statute and the rule of lenity, I believe
that inducement is an element of official extortion under
the Hobbs Act.
Perhaps sensing the weakness of its position, the Court
suggests an alternative interpretation: even if the statute
does set forth an ``inducement'' requirement for official
extortion, that requirement is always satisfied, because ``the
coercive element is provided by the public office itself.''
Ante, at 11.  I disagree.  A particular public official, to be
sure, may wield his power in such a way as to coerce
unlawful payments, even in the absence of any explicit
demand or threat.  But it ignores reality to assert that every
public official, in every context, automatically exerts coercive
influence on others by virtue of his office.  If the Chairman
of General Motors meets with a local court clerk, for
example, whatever implicit coercive pressures exist will
surely not emanate from the clerk.  In Miranda v. Arizona,
384 U. S. 436 (1966), of course, this Court established a
presumption of ``inherently compelling pressures'' in the
context of official custodial interrogation.  Id., at 467.  Now,
apparently, we assume that all public officials exude an
aura of coercion at all places and at all times.  That is not
progress.

                 B
The Court's construction of the Hobbs Act is repugnant
not only to the basic tenets of criminal justice reflected in
the rule of lenity, but also to basic tenets of federalism.
Over the past 20 years, the Hobbs Act has served as the
engine for a stunning expansion of federal criminal jurisdic-
tion into a field traditionally policed by state and local
laws-acts of public corruption by state and local officials.
See generally Ruff, Federal Prosecution of Local Corruption:
A Case Study in the Making of Law Enforcement Policy, 65
Geo. L.J. 1171 (1977).  That expansion was born of a single
sentence in a Third Circuit opinion: ``[The `under color of
official right' language in the Hobbs Act] repeats the
common law definition of extortion, a crime which could
only be committed by a public official, and which did not
require proof of threat, fear, or duress.''  United States v.
Kenny, 462 F. 2d 1205, 1229, cert. denied, 409 U. S. 914
(1972).  As explained above, that sentence is not necessarily
incorrect in its description of what common-law extortion
did not require; unfortunately, it omits an important part
of what common-law extortion did require.  By overlooking
the traditional meaning of ``under color of official right,''
Kenny obliterated the distinction between extortion and
bribery, essentially creating a new crime encompassing
both.
``As effectively as if there were federal common law
crimes, the court in Kenny . . . amend[ed] the Hobbs
Act and [brought] into existence a new crime-local
bribery affecting interstate commerce.  Hereafter, for
purposes of Hobbs Act prosecutions, such bribery was
to be called extortion.  The federal policing of state
corruption had begun.''  J. Noonan, Bribes 586 (1984).
After Kenny, federal prosecutors came to view the Hobbs
Act as a license for ferreting out all wrongdoing at the state
and local level-```a special code of integrity for public
officials.'''  United States v. O'Grady, 742 F. 2d 682, 694
(CA2 1984) (en banc) (quoting Letter from Raymond J.
Dearie, U. S. Attorney for the Eastern District of New York,
to the United States Court of Appeals for the Second
Circuit, dated Jan. 21, 1983).  In short order, most other
circuits followed Kenny's lead and upheld, based on a
bribery rationale, the Hobbs-Act extortion convictions of an
astonishing variety of state and local officials, from a state
governor, see United States v. Hall, 536 F. 2d 313, 320-321
(CA10), cert. denied, 429 U. S. 919 (1976), down to a local
policeman, see United States v. Braasch, 505 F. 2d 139, 151
(CA7 1974), cert. denied, 421 U. S. 910 (1975).
Our precedents, to be sure, suggest that Congress enjoys
broad constitutional power to legislate in areas traditionally
regulated by the States-power that apparently extends
even to the direct regulation of the qualifications, tenure,
and conduct of state governmental officials.  See, e.g.,
Garcia v. San Antonio Metropolitan Transit Authority, 469
U. S. 528, 547-554 (1985).  As we emphasized only last
Term, however, concerns of federalism require us to give a
narrow construction to federal legislation in such sensitive
areas unless Congress' contrary intent is ``unmistakably
clear in the language of the statute.''  Gregory v. Ashcroft,
501 U. S. --, -- (1991) (slip op., at 7) (internal quota-
tion marks omitted).  ``This plain statement rule is nothing
more than a acknowledgement that the States retain
substantial sovereign powers under our constitutional
scheme, powers with which Congress does not readily
interfere.''  Ibid.  Gregory's teaching is straightforward:
because we ``assume Congress does not exercise lightly'' its
extraordinary power to regulate state officials, id., at --
(slip op., at 6), we will construe ambiguous statutory provi-
sions in the least intrusive manner that can reasonably be
inferred from the statute.  Id., at -- (slip op., at 13).
Gregory's rule represents nothing more than a restate-
ment of established law:
``Congress has traditionally been reluctant to define as
a federal crime conduct readily denounced as criminal
by the States.  . . .  As this Court emphasized only last
Term in Rewis v. United States, [401 U. S. 808 (1970)-
-a case involving the Hobbs Act's counterpart, the
Travel Act], we will not be quick to assume that
Congress has meant to effect a significant change in
the sensitive relation between federal and state crimi-
nal jurisdiction.  In traditionally sensitive areas, such
as legislation affecting the federal balance, the require-
ment of clear statement assures that the legislature
has in fact faced, and intended to bring into issue, the
critical matters involved in the judicial decision.''
United States v. Bass, 404 U. S., at 349 (footnote
omitted).
Similarly, in McNally v. United States, 483 U. S. 350
(1987)-a case closely analogous to this one-we rejected
the Government's contention that the federal mail fraud
statute, 18 U. S. C. 1341, protected the citizenry's ``intan-
gible right'' to good government, and hence could be applied
to all instances of state and local corruption.  Such an
expansive reading of the statute, we noted with disapproval,
would ``leav[e] its outer boundaries ambiguous and involv[e]
the Federal Government in setting standards of disclosure
and good government for local and state officials.''  Cf.
Baxter, Federal Discretion in the Prosecution of Local
Political Corruption, 10 Pepp. L. Rev. 321, 336-343 (1983).
The reader of today's opinion, however, will search in
vain for any consideration of the principles of federalism
that animated Gregory, Rewis, Bass, and McNally.  It is
clear, of course, that the Hobbs Act's proscription of
extortion ``under color of official right'' applies to all public
officials, including those at the state and local level.  As our
cases emphasize, however, even when Congress has clearly
decided to engage in some regulation of the state govern-
mental officials, concerns of federalism play a vital role in
evaluating the scope of the regulation.  The Court today
mocks this jurisprudence by reading two significant
limitations (the textual requirement of ``inducement'' and
the common-law requirement of ``under color of office'') out
of the Hobbs Act's definition of official extortion.

                III
I have no doubt that today's opinion is motivated by noble
aims.  Political corruption at any level of government is a
serious evil, and, from a policy perspective, perhaps one
well suited for federal law enforcement.  But federal judges
are not free to devise new crimes to meet the occasion.
Chief Justice Marshall's warning is as timely today as ever:
``It would be dangerous, indeed, to carry the principle that
a case which is within the reason or mischief of a statute,
is within its provisions, so far as to punish a crime not
enumerated in the statute, because it is of equal atrocity, or
of kindred character, with those which are enumerated.''
United States v. Wiltberger, 5 Wheat. 76, 96 (1820).
Whatever evils today's opinion may redress, in my view,
pale beside those it will engender.  ``Courts must resist th[e]
temptation [to stretch criminal statutes] in the interest of
the long-range preservation of limited and even-handed
government.''  United States v. Mazzei, 521 F. 2d 639, 656
(CA3 1975) (en banc) (Gibbons, J., dissenting).  All Ameri-
cans, including public officials, are entitled to protection
from prosecutorial abuse.  Cf. Morrison v. Olson, 487 U. S.
654, 727-732 (1988) (Scalia, J., dissenting).  The facts of
this case suggest a depressing erosion of that protection.
Petitioner Evans was elected to the Board of Commission-
ers of DeKalb County, Georgia, in 1982.  He was no local
tyrant-just one of five part-time Commissioners earning
an annual salary of approximately $16,000.  The Board's
activities were entirely local, including the quintessentially
local activity of zoning property.  The United States does
not suggest that there were any allegations of corruption or
malfeasance against Evans.
In early 1985, as part of an investigation into ``allegations
of public corruption in the Atlanta area,'' a Federal Bureau
of Investigation agent, Clifford Cormany, Jr., set up a bogus
firm, ``WDH Developers,'' and pretended to be a land
developer.  Cormany sought and obtained a meeting with
Evans.  From March 1985 until October 1987, a period of
some two and a half years, Cormany or one of his associates
held 33 conversations with Evans.  Every one of these
contacts was initiated by the agents.  During these conver-
sations, the agents repeatedly requested Evans' assistance
in securing a favorable zoning decision, and repeatedly
brought up the subject of campaign contributions.  Agent
Cormany eventually contributed $8,000 to Evans' reelection
campaign, and Evans accepted the money.  There is no
suggestion that he claimed an official entitlement to the
payment.  Nonetheless, he was arrested and charged with
Hobbs Act extortion.
The Court is surely correct that there is sufficient
evidence to support the jury's verdict that Evans committed
``extortion'' under the Court's expansive interpretation of
the crime.  But that interpretation has no basis in the
statute that Congress passed in 1946.  If the Court makes
up this version of the crime today, who is to say what
version it will make up tomorrow when confronted with the
next perceived rascal?  Until now, the Justice Department,
with good reason, has been extremely cautious in advancing
the theory that official extortion contains no inducement
requirement.  ``Until the Supreme Court decides upon the
validity of this type of conviction, prosecutorial discretion
should be used to insure that any case which might reach
that level of review is worthy of federal prosecution.  Such
restraint would require that only significant amounts of
money and reasonably high levels of office should be
involved.''  See U. S. Dept. of Justice, United States
Attorneys' Manual 9-131.180 (1984) (emphasis added).
Having detected no ``[s]uch restraint'' in this case, I certain-
ly have no reason to expect it in the future.
Our criminal-justice system runs on the premise that
prosecutors will respect and courts will enforce the bound-
aries on criminal conduct set by the legislature.  Where, as
here, those boundaries are breached, it becomes impossible
to tell where prosecutorial discretion ends and prosecutorial
abuse, or even discrimination, begins.  The potential for
abuse, of course, is particularly grave in the inherently
political context of public-corruption prosecutions.
In my view, Evans is plainly innocent of extortion.  With
all due respect, I am compelled to dissent.