The Supreme Court/The Supreme Court.iso/pc/ascii/1990/90_6105/90_6105.zc2

Text File | 1992-05-25 | 11.7 KB | 218 lines

SUPREME COURT OF THE UNITED STATES
--------
No. 90-6105
--------
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 Kennedy, concurring in part and concurring in
the judgment.
  The Court gives a summary of its decision in these words:
-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 ___.  In my view the dissent is
correct to conclude that this language requires a quid pro
quo as an element of the Government's case in a prosecu-
tion under 18 U. S. C. 1951, see post, at ___, and the
Court's opinion can be interpreted in a way that is consis-
tent with this rule.  Although the Court appears to accept
the requirement of a quid pro quo as an alternative
rationale, in my view this element of the offense is essential
to a determination of those acts which are criminal and
those which are not in a case in which the official does not
pretend that he is entitled by law to the property in
question.  Here the prosecution did establish a quid pro quo
that embodied the necessary elements of a statutory
violation.  I join part III of the Court's opinion and concur
in the judgment affirming the conviction.  I write this
separate opinion to explain my analysis and understanding
of the statute.
  With regard to the question whether the word -induced-
in the statutory definition of extortion applies to the phrase
-under color of official right,- 18 U. S. C. 1951(b)(2), I find
myself in substantial agreement with the dissent.  Scrutiny
of the placement of commas will not, in the final analysis,
yield a convincing answer, and we are left with two quite
plausible interpretations.  Under these circumstances, I
agree with the dissent that the rule of lenity requires that
we avoid the harsher one.  See post, at ___.  We must take
as our starting point the assumption that the portion of the
statute at issue here defines extortion as -the obtaining of
property from another, with his consent, induced . . . under
color of official right.-
  I agree with the Court, on the other hand, that the word
-induced- does not -necessarily indicat[e] that the transac-
tion must be initiated by the- public official.  Ante, at ___
(emphasis in original).  Something beyond the mere
acceptance of property from another is required, however,
or else the word -induced- would be superfluous.  That
something, I submit, is the quid pro quo.  The ability of the
official to use or refrain from using authority is the -color
of official right-  which can be invoked in a corrupt way to
induce payment of money or to otherwise obtain property.
The inducement generates a quid pro quo, under color of
official right, that the statute prohibits.  The term -under
color of- is used, as I think both the Court and the dissent
agree, to sweep within the statute those corrupt exercises
of authority that the law forbids but that nevertheless
cause damage because the exercise is by a governmental
official.  Cf. Monroe v. Pape, 365 U. S. 167, 184 (1961)
(-`Misuse of power, possessed by virtue of state law and
made possible only because the wrongdoer is clothed with
the authority of state law, is action taken `under color of'
state law'-) (quoting United States v. Classic, 313 U. S. 299,
326 (1941)).
  The requirement of a quid pro quo means that without
pretense of any entitlement to the payment, a public official
violates 1951 if he intends the payor to believe that absent
payment the official is likely to abuse his office and his
trust to the detriment and injury of the prospective payor
or to give the prospective payor less favorable treatment if
the quid pro quo is not satisfied.  The official and the payor
need not state the quid pro quo in express terms, for
otherwise the law's effect could be frustrated by knowing
winks and nods.  The inducement from the official is
criminal if it is express or if it is implied from his words
and actions, so long as he intends it to be so and the payor
so interprets it.
The criminal law in the usual course concerns itself with
motives and consequences, not formalities.  And the trier of
fact is quite capable of deciding the intent with which words
were spoken or actions taken as well as the reasonable
construction given to them by the official and the payor.
See McCormick v. United States, 500 U. S. ___, ___ (1991)
(-It goes without saying that matters of intent are for the
jury to consider-).  In this respect a prosecution under the
statute has some similarities to a contract dispute, with the
added and vital element that motive is crucial.  For
example, a quid pro quo with the attendant corrupt motive
can be inferred from an ongoing course of conduct.  Cf.
United States v. O'Grady, 742 F. 2d 682, 694 (CA2 1984)
(Pierce, J., concurring).  In such instances, for a public
official to commit extortion under color of official right, his
course of dealings must establish a real understanding that
failure to make a payment will result in the victimization
of the prospective payor or the withholding of more favor-
able treatment, a victimization or withholding accomplished
by taking or refraining from taking official action, all in
breach of the official's trust.  See Lindgren, The Elusive
Distinction Between Bribery and Extortion: From the
Common Law to the Hobbs Act, 35 UCLA L. Rev. 815,
887-888 (1988) (observing that the offense of official
extortion has always focused on public corruption).
Thus, I agree with the Court, that the quid pro quo
requirement is not simply made up, as the dissent asserts.
Post, at ___.  Instead, this essential element of the offense
is derived from the statutory requirement that the official
receive payment under color of official right, see ante, at
___, n. 20, as well as the inducement requirement.  And
there are additional principles of construction which justify
this interpretation.  First is the principle that statutes are
to be construed so that they are constitutional.  See Edward
J. DeBartolo Corp. v. Florida Gulf Coast Building &
Construction Trades Council, 485 U. S. 568, 575 (1988), and
cases cited therein.  As one Court of Appeals Judge who
agreed with the construction the Court today adopts noted,
-the phrase `under color of official right,' standing alone, is
vague almost to the point of unconstitutionality.-  United
States v. O'Grady, , supra, at 695 (Van Graafeiland, J.,
concurring in part and dissenting in part) (citing Village of
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455
U. S. 489, 498-499 (1982)).  By placing upon a criminal
statute a narrow construction, we avoid the possibility of
imputing to Congress an enactment that lacks necessary
precision.
Moreover, the mechanism which controls and limits the
scope of official right extortion is a familiar one: a state of
mind requirement.  See Morissette v. United States, 342
U. S. 246 (1952) (refusing to impute to Congress the intent
to create a strict liability crime despite the absence of any
explicit mens rea requirement in the statute).  Hence, even
if the quid pro quo requirement did not have firm roots in
the statutory language, it would constitute no abuse of
judicial power for us to find it by implication.
Morissette legitimates the Court's decision in an addition-
al way.  As both the Court and the dissent agree, compare
ante, at ___ with post, at ___, n. 5, Congress' choice of the
phrase -under color of official right- rather than -by colour
of his office- does not reflect a substantive modification of
the common law.  Instead, both the Court and dissent
conclude that the language at issue here must be interpret-
ed in light of the familiar principle that absent any indica-
tion otherwise, Congress meant its words to be interpreted
in light of the common law.  Morissette, supra, at 263.  As
to the meaning of the common law, I agree with the Court's
analysis, and therefore join part III of the Court's opinion.
While the dissent may well be correct that prior to the
enactment of the Hobbs Act a large number of the reported
official extortion cases in the United States happened to
involve false pretenses, those cases do not so much as hint
that a false pretense of right was ever considered as an
essential element of the offense.  See, e.g., People v. Whaley,
6 Cow. 661, 663-664 (N.Y. Sup. Ct. 1827) (-Extortion
signifies, in an enlarged sense, any oppression under color
of right.  In a stricter sense, it signifies the taking of money
by any officer, by color of his office; either, where none at
all is due, or not so much due, or when it is not yet due-);
Hanley v. State, 125 Wis. 396, 104 N.W. 57, 59 (1905) (-The
common-law offense of extortion is said `to be an abuse of
public justice, which consists in any officer's unlawfully
taking by color of his office, from any man, any money or
thing of value that is not due him, or more than is due him,
or before it is due-) (quoting W. Blackstone, 4 Commentar-
ies 141).  Furthermore, as the Court demonstrates, see ante,
at ___, during the same period other American courts
affirmed convictions of public officials for extortion based
upon corrupt receipt of payment absent any claim of right.
Morissette is relevant in one final respect.  As I have
indicated, and as the jury instructions in this case made
clear, an official violates the statute only if he agrees to
receive a payment not due him in exchange for an official
act, knowing that he is not entitled to the payment.  See
App. 13 (requiring -wrongful use of otherwise valid official
power-).  Modern courts familiar with the principle that
only a clear congressional statement can create a strict
liability offense, see Morissette, supra, understand this
fundamental limitation.  I point it out only because the
express terms of the common law definition of official
extortion do not state the requirement that the official's
intent be corrupt, see, e.g., Whaley, supra, at 663-664;
Hanley, supra, at 401-402, 104 N.W., at 59; Lindgren,
supra, at 870-871 (setting forth six colonial-era definitions
of official extortion), and some courts in this country appear
to have taken the view that the common-law offense had no
mens rea requirement.  See, e.g., Commonwealth v. Bagley,
7 Pick. 279, 281 (Mass. 1828) (affirming the conviction -of
an honest and meritorious public officer, who by misappre-
hension of his rights [had] demanded and received a lawful
fee for a service not yet performed-).  On the other hand, in
other jurisdictions corrupt motive was thought to be an
element of the offense.  E.g., Whaley, supra, at 664 (re-
marking that the jury found that the defendant accepted
payment -with the corrupt intent charged in the indict-
ment-).  In any event, even if the rule had been otherwise
at common law, our modern jurisprudence would require
that there be a mens rea requirement now.  In short, a
public official who labors under the good-faith but erroneous
belief that he is entitled to payment for an official act does
not violate the statute.  That circumstance is not, however,
presented here.
The requirement of a quid pro quo in a 1951 prosecution
such as the one before us, in which it is alleged that money
was given to the public official in the form of a campaign
contribution, was established by our decision last term in
McCormick v. United States, 500 U. S. ___ (1991).  Readers
of today's opinion should have little difficulty in under-
standing that the rationale underlying the Court's holding
applies not only in campaign contribution cases, but all
1951 prosecutions.  That is as it should be, for, given a
corrupt motive, the quid pro quo, as I have said, is the
essence of the offense.
Because I agree that the jury instruction in this case
complied with the quid pro quo requirement, I concur in the
judgment of the Court.