ROBERT L. MCCORMICK, PETITIONER V. UNITED STATES OF AMERICA

   No. 89-1918

   In The Supreme Court Of The United States

   October Term, 1990

   On Writ Of Certiorari To The United States Court Of Appeals For The
Fourth Circuit

   Brief For The United States

            TABLE OF CONTENTS
   Questions Presented
   Opinion below
   Jurisdiction
   Statutory provisions involved
   Statement
   Summary of argument
   Argument:
      I. Petitioner violated the Hobbs Act by inducing
         a personal payoff under color of official
         right
         A. The Hobbs Act prohibits an elected official
            from inducing a personal payoff in
            return for doing his job
         B. Petitioner was convicted of obtaining a
            personal payoff, not a campaign contribution
     II. Petitioner's tax fraud conviction is valid even
         if his Hobbs Act conviction is overturned
   Conclusion

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. 1-22) is reported at
896 F.2d 61.

                             JURISDICTION

   The judgment of the court of appeals was entered on February 12,
1990.  A petition for rehearing was denied on March 7, 1990.  The
petition for a writ of certiorari was filed on June 5, 1990, and was
granted on October 1, 1990.  The jurisdiction of this Court is invoked
under 28 U.S.C. 1254(1).

                     STATUTORY PROVISIONS INVOLVED

   The Hobbs Act, 18 U.S.C. 1951, provides as follows:

         (a) Whoever in any way or degree obstructs, delays, or
      affects commerce or the movement of any article or commodity in
      commerce, by robbery or extortion or attempts or conspires so to
      do, or commits or threatens physical violence to any person or
      property in furtherance of a plan or purpose to do anything in
      violation of this section shall be fined not more than $10,000
      or imprisoned not more than twenty years, or both.

         (b) As used in this section --

         (1) The term "robbery" means the unlawful taking or obtaining
      of personal property from the person or in the presence of
      another, against his will, by means of actual or threatened
      force, or violence, or fear of injury, immediate or future, to
      his person or property, or property in his custody or
      possession, or the person or property of a relative or member of
      his family or of anyone in his company at the time of the taking
      or obtaining.

         (2) 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.

         (3) The term "commerce" means commerce within the District of
      Columbia, or any Territory or Possession of the United States;
      all commerce between any point in a State, Territory,
      Possession, or the District of Columbia and any point outside
      thereof;  all commerce between points within the same State
      through any place outside such State;  and all other commerce
      over which the United States has jurisdiction.

         (c) This section shall not be construed to repeal, modify, or
      affect section 17 of Title 15, sections 52, 101-115, 151-166 of
      Title 29 or sections 151-188 of Title 45.

   Section 7206 of the Internal Revenue Code, 26 U.S.C., provides in
relevant part as follows:

         Any person who --

         (1) * * * Willfully makes and subscribes any return,
      statement, or other document, which contains or is verified by a
      written declaration that it is made under the penalties of
      perjury, and which he does not believe to be true and correct as
      to every material matter * * *

                      * * * * *

      shall be guilty of a felony and, upon conviction thereof, shall
      be fined not more than $100,000 * * * or imprisoned not more
      than 3 years, or both, together with the costs of prosecution.
      STATEMENT

                          QUESTIONS PRESENTED

   1. Whether petitioner, an elected public official, was properly
convicted of violating the Hobbs Act by wrongfully inducing the making
of a personal payoff for the performance of his official duties.

   2. Whether petitioner, who did not declare the payoff he received
as income, was properly convicted of filing a false personal income
tax return.

   After a jury trial in the United States District Court for the
Southern District of West Virginia, petitioner, a state legislator,
was convicted of extortion under color of official right, in violation
of the Hobbs Act, 18 U.S.C. 1951;  and of filing a false income tax
return, in violation of 26 U.S.C. 7206(1).  He was sentenced to three
years' probation, fined $50,000, and ordered to pay restitution of
$900 and prosecution costs of $1,647.50.  The court of appeals
affirmed.

   1. In 1984, petitioner was a member of the West Virginia House of
Delegates.  He represented an economically depressed coal mining
region that had long suffered from a shortage of medical personnel.
To help alleviate the problem, West Virginia legislation had for some
time allowed foreign medical school graduates who had not met the
State's medical licensing requirements to practice medicine under
temporary permits while studying to pass the licensing examinations.
Tr. 119-129, 377-378.  Approximately 20 to 30 temporary-permit doctors
had repeatedly failed the examinations but were able to continue
practicing medicine while studying to take the examinations again.
Tr. 610.  The legislature passed a bill in 1980 that required the
temporary-permit program to terminate in 1982.  In 1981, that deadline
was postponed until 1984.  Tr. 122, 163, 378-379, 553.

   a. Petitioner had been a long-time supporter of the
temporary-permit system.  Tr. 152, 228, 341.  In 1983, lobbyist John
Vandergrift called petitioner and said that he was interested in
speaking to the temporary-permit doctors to see whether they would
hire him to work on their behalf.  Petitioner gave Vandergrift the
name and telephone number of Dr. Ernesto Manuel, who had acted as a
spokesman for the doctors.  Tr. 151-152.  A number of temporary-permit
doctors, including Dr. Manuel, subsequently met with Vandergrift,
hired him as their lobbyist, and at Vandergrift's suggestion formed
the "Coalfield Health Care Association." Dr. Manuel became the
president of the Association.  Tr. 151-154, 157, 293-294.

   During the 1984 West Virginia legislative session, petitioner
sponsored legislation urged by the Association that extended the
temporary-permit system for another year.  Tr. 163-167.  On March 10,
1984, the last day of the 1984 legislative session, Vandergrift, who
was staying at a Charleston hotel, learned that petitioner had
incurred a $766.34 bill at the hotel.  Vandergrift paid the bill using
Dr. Manuel's credit card.  When Vandergrift later told petitioner that
he had taken care of the bill, petitioner did not ask why.  Tr.
1034-1036;  C.A. App. 1125.  Then, shortly after the close of the 1984
legislative session, petitioner agreed at Vandergrift's request to
sponsor new legislation, to be introduced during the 1985 session,
that would grant permanent medical licenses to the temporary-permit
doctors.  Tr. 165-167.

   Vandergrift testified that late in May of 1984, shortly before the
primary election, he had a telephone conversation with petitioner.  In
that conversation, Vandergrift stated, petitioner "expressed to me
that his campaign was rather expensive, the election was coming up,
and that he had put out a couple of thousand dollars out of his pocket
and he hadn't heard anything from the foreign physicians and he wanted
to know what I was going to do about it." Tr. 167-168.  According to
Vandergrift, petitioner was "very upset" and "unfriendly," and the
tone of his voice was "very rough." Tr. 168, 282.  Vandergrift told
petitioner he would get in touch with Dr. Manuel and "see what I could
do." Tr. 168.

   Vandergrift then "relayed the conversation to Dr. Manuel." Tr. 169.
 Because petitioner "had mentioned he had to put out cash,"
Vandergrift testified, "I decided to go ahead and replace it in kind."
Tr. 210.  A day or two later, on June 1, 1984, Dr. Manuel cashed a
$1,200 Association check and gave the proceeds to Vandergrift.  Under
his agreement with Dr. Manuel, Vandergrift kept $300 of the money and
placed the rest, in the form of nine $100 bills, in an envelope to
deliver to petitioner.  Tr. 170-171, 306-308.  Vandergrift then
personally delivered the envelope containing the $900 to petitioner at
his office at McCormick's Department Store in Logan, West Virginia.
Petitioner's receipt of the $900 provided the basis for the Hobbs Act
count on which he was convicted.

   Vandergrift told petitioner there would be more money later that
day.  Petitioner said he would not be in his office that afternoon,
but that if Vandergrift had more money he should give it to
petitioner's grandnephew.  Tr. 171-172.  Later that day, Vandergrift
received a $4,000 Association check payable to him from Dr. Manuel,
with the understanding that Vandergrift would keep $2,000 and the
other $2,000 would be delivered to petitioner.  Tr. 309, 354.  That
same day, Vandergrift cashed the $4,000 check and put $2,000 of it in
$100 bills in an envelope.  Accompanied by another Association member,
Conrad Cabauatan, whose wife was a temporary-permit doctor,
Vandergrift delivered the envelope to petitioner's grandnephew, who
later gave it to petitioner.  Tr. 176-178.  The government's evidence
showed that Dr. Manuel delivered three more cash payments from the
doctors to petitioner:  $800 on November 1, 1984;  $600 on December
19, 1984;  and $950 on May 15, 1985.  Tr. 318-326.  /1/

   Neither the doctors nor petitioner treated the $900 June 1 payment,
or any of the other cash payments, as a campaign contribution.
Petitioner did not report the payments on his campaign books or in his
required campaign financing filings.  C.A. App. 1102-1114
(petitioner's campaign financial statements).  Nor did he report it on
his federal tax return for 1984.  C.A. App. 1083-1095 (tax return).
The Association kept a record of its payments to petitioner, but the
Association's records did not identify those payments as campaign
contributions;  indeed, the Association used a code to disguise the
fact that petitioner was the recipient.  C.A. App. 1068, 1070
(photocopies of the five relevant Association checks), 1076, 1078,
1080 (Association records).  /2/

   b. Dr. Manuel testified that he gave petitioner the cash payments
to "express() our thanks for what he has been doing." Tr. 320.  Dr.
Jamie Gosien, who was present when the $600 payment was made on
December 19, 1984, understood that the cash payment was made "for the
bill," Tr. 566, and "in return for (petitioner's) efforts," Tr. 582.
Conrad Cabauatan testified that petitioner was given "the money in
order to further the cause of the Coalfield Health Care Association *
* * to secure a permanent license for those temporary licensed
doctors." Tr. 893.  Vandergrift stated that he advised the doctors to
give petitioner the money because he "wouldn't take the risk of not
giving it to him." Tr. 281.

   The evidence showed that petitioner did, in fact, aid the
temporary-permit doctors.  At Dr. Manuel's request, petitioner
appeared at a November 12, 1984, hearing of the West Virginia Board of
Medicine to argue the temporary-permit doctors' cause and to appeal to
the Board not to oppose legislation favorable to the temporary-permit
doctors.  Tr. 321-322, 387-388.  The legislature reconvened in January
1985, and in February petitioner sponsored the favorable licensing
legislation, H.B. 1431.  Tr. 180-183, 325-326.  Petitioner spoke at
length in favor of the bill, which passed the House of Delegates and
the Senate and became law on May 2, 1985.  Tr. 183-184, 325;  C.A.
App. 1022-1067 (transcript of petitioner's remarks during debate on
H.B. 1431).  Two weeks after the bill was enacted, petitioner received
the last of the series of cash payments from Dr. Manuel.  Tr. 325-331.

   In spite of the enactment of the licensing bill, seven of the
temporary-permit doctors, including Dr. Manuel, Dr. Gosien, and Conrad
Cabauatan's wife, were denied licenses by the Medical Licensing Board
because they failed to meet even the liberal licensing requirements of
the new law.  Tr. 118-122, 184-185, 331-332, 602-604, 612-617.
Vandergrift contacted petitioner and said that petitioner would have
to make an appearance at the next Board meeting.  Vandergrift told
petitioner that "in order to get the board to change (its) mind and
back up on the decision, he would have to intimidate the hell out of
them." Tr. 185.  On July 8, 1985, petitioner appeared at the hearing
and made a presentation that included thinly veiled threats of
legislative action adverse to the interests of the Board.  Tr.
186-187, 412-418, 591-592.  Petitioner assured the Board that "if I
had a personal interest where I was going to have some gain out of
this thing, I would not expect you-all to believe a word I've said or
even to let me try to sway you in reconsidering your action." Tr. 502.
 As a result of the hearing, five of the seven doctors, including Dr.
Manuel, Dr. Gosien, and Conrad Cabauatan's wife, obtained permanent
licenses.  Tr. 403-404, 593.

   The following year, Vandergrift asked petitioner whether another
politician should solicit funds from the formerly unlicensed
physicians.  According to Vandergrift, petitioner responded by saying
that "the doctors had taken good care of him and the debt was paid and
everyone else should basically not be asking them for any more
political contributions." Tr. 189.

   2. In September 1988, a federal grand jury returned an indictment
charging that petitioner "obtain(ed) property in the form of cash
payments * * * not due either him or his office, directly or
indirectly, from foreign doctors holding temporary permits, with their
consent, induced under the color of official right." J.A. 13.  In
Counts 1 through 5, the indictment charged each of the five payments
to petitioner as separate Hobbs Act violations.  Count 6 charged
petitioner with filing a false income tax return for 1984 because he
had failed to report the 1984 payments as personal income.  J.A.
14-15.

   a. At trial, the government's theory of prosecution, as set forth
in its opening statement and closing arguments, was that the payments
were personal payoffs that the doctors had made to ensure petitioner's
continued support of legislation favorable to them.  Tr. 106, 112,
115, 1113, 1129.  The initial theory of the defense, as set forth in
defense counsel's opening statement, was that petitioner had never
received any payments.  Defense counsel claimed that the evidence
"will militate against any possible inference that (petitioner) asked
for, induced, or received any money from these doctors." Tr. 6.  /3/
Counsel further told the jury that petitioner "needs 5 or 6 hundred
dollars or 4,000 dollars like he would need the Hong Kong flu.  He
doesn't need that money, we will show you, and didn't ask for it and
didn't receive it." Tr. 7.

   During trial, the defense sought to impeach Vandergrift's testimony
by suggesting he had never delivered any money to petitioner, but
instead had pocketed it himself with the intention of claiming it as a
lobbying expense for the Association.  Tr. 253, 255;  see Tr. 304.  In
this connection, defense counsel first suggested that petitioner had
never asked Vandergrift for money.  If petitioner had needed a
campaign contribution from the doctors, counsel suggested, petitioner
would have called them directly.  Defense counsel asked Vandergrift
why petitioner "would need you to intercede with a group that he had
connected you with?" Tr. 234.  In the same vein, defense counsel later
sought to establish that Dr. Manuel had no way of knowing whether
Vandergrift gave petitioner the $900 payment of June 1, 1985.  Tr.
351.  The defense called Conrad Cabauatan, who testified that he did
not recall making any payment with Vandergrift or ever having met
petitioner's grandnephew.  Tr. 884-886.  The defense also called
petitioner's grandnephew, David McCormick, who denied ever receiving
anything from Vandergrift.  Tr. 1014-1015.  In addition, the defense
sought to develop evidence respecting petitioner's substantial net
worth in support of its claim that petitioner had no motive to take
any money.  Tr. 535-544, 937.

   That line of defense was weakened substantially when Dr. Manuel
testified that he personally gave petitioner cash on three occasions.
By the time defense counsel made his closing argument, the theory of
the defense had shifted entirely.  In his closing argument, defense
counsel did not contest petitioner's receipt of the money, but claimed
that the money was given and received as campaign contributions.  As
such, he argued, the payments could not violate the Hobbs act unless
they were coerced or were made in exchange for a specific quid pro
quo.  Tr. 1130-1157.  In rebuttal argument, the government reiterated
its theory that petitioner had "receive(d) cash payments for doing his
job, that's the crime that he is charged with." Tr. 1161;  see also
Tr. 1170.  The government noted the abrupt change in the defense
strategy, Tr. 1164, and argued that the evidence refuted the claim
that the payments were made or received as campaign contributions, Tr.
1164-1170.

   b. Both in the initial jury instructions, J.A. 16-22, and in the
instructions given after the jury sought further guidance, J.A. 27-34,
the district court comprehensively instructed the jury on the elements
of a Hobbs Act violation.  The court instructed that in order to
convict, the jury had to find that petitioner "induced a cash payment
from foreign doctors, as alleged in each count," that petitioner "did
so knowingly and willfully by extortion," and that in doing so he
"affected or attempted to affect interstate commerce." J.A. 17, 28.

   The statute defines "extortion" as "the obtaining of property from
another, with his consent, induced * * * under color of official
right," 18 U.S.C. 1951(b)(2), and the court so instructed the jury,
J.A. 29;  see J.A. 17.  The court went on to explain the terms
"inducement" and "under color of official right" in detail, and made
clear that petitioner could not be convicted for receiving campaign
contributions.

   With respect to "inducement," the court instructed that "inducement
can be in the form of a demand, or in a more subtle form such as
custom or expectation such as might have been communicated by the
nature of the defendant's prior conduct in his office, if any." J.A.
30;  see J.A. 18.  The jury was told that it could "take into account
all the surrounding circumstances, including any words spoken or
actions of the defendant," in determining whether petitioner had
induced the payments.  J.A. 29;  see J.A. 18.

   The court defined "under color of official right" to mean "the
obtaining of money by a public official when the money obtained was
not lawfully due and owing to him or his office." J.A. 30;  see J.A.
18-19.  The jury was further instructed:  "If the public official
knows the motivation of the victim to make any payment focuses on the
public official's office, and money is obtained by the public official
which was not lawfully due and owing to him or the office he
represented, or which he was not otherwise lawfully entitled to
receive, that is sufficient to satisfy the government's burden of
showing a misuse of office and extortion under color of official
right." J.A. 31;  see J.A. 19.  The court added that "(a) claim that a
public official's actions would have been the same whether or not he
received the alleged payment is * * * irrelevant and * * * it is not
necessary that the government prove that the defendant committed or
promised to commit a quid pro quo." J.A. 32;  see J.A. 21-22.

   The court also instructed the jury that the alleged Hobbs Act
violation is a "specific intent" crime, which requires that "the
government must prove beyond a reasonable doubt that the defendant
knowingly did an act which the law forbids, purposely intending to
violate the law." Tr. 1191.  The jury was instructed that "the
specific intent requirement permeates every element of the offense,
and is to be applied by you with respect to each count independently
and separately." /4/ Tr. 1192.

   With respect to the defense theory that the payments were campaign
contributions, not personal payoffs, the court instructed that
"extortion does not occur where one who is a public official receives
a legitimate gift or a voluntary political contribution even though
the political contribution may have been made in cash in violation of
local law." J.A. 30.  The court further explained that petitioner
could not be convicted simply for soliciting and accepting campaign
contributions:

         It is not illegal, in and of itself, for an elected
      legislator to solicit or accept campaign contributions on behalf
      of himself or other legislators from individuals who have a
      special interest in pending legislation.  * * *

         Many public officials in this country receive political
      contributions from individuals who, the official knows, are
      motivated by a general gratitude toward him because of his
      position on certain issues important to them, or even in the
      hope that the goodwill generated by such contributions will make
      the official more receptive to their cause.

         The mere solicitation or receipt of such political
      contributions is not of itself illegal.

J.A. 33;  see J.A. 20-21.  The court summarized this instruction by
stating:  "It would not be illegal, in and of itself, for Mr.
McCormick to solicit or accept political contributions from foreign
doctors who would benefit from this legislation." J.A. 33-34.

   In the instructions with respect to the tax fraud offense, the
court reiterated the requirement that the jury find that the cash
payments were not received by petitioner as campaign contributions.
The court first instructed the jury that "(w)here a political gift is
received by an individual or a political organization and it is held
or used for present or future expenses of a political campaign or for
similar purposes, it is not taxable income to the recipient." J.A. 37.
 The court then made clear that petitioner could not be convicted of
tax fraud if he had used the money for his campaign or even to
reimburse himself for campaign expenditures.  The court instructed the
jury that the payments would constitute nontaxable political
contributions if they had been "utilized for generally recognized
campaign expenses, regardless of when such expenses were incurred," or
"used to reimburse the political candidate for out-of-pocket campaign
expenses paid by him during a current campaign, or, if he is not
currently campaigning, during his last previous campaign." J.A. 37.
Furthermore, the court made clear that the mere violation of a local
campaign finance law did not give rise to liability for tax fraud:
"In determining whether a particular payment represents a nontaxable
political contribution, it does not matter whether or not the payment
may have violated some state election law, although the fact that the
payment is found to have violated some local election law may be taken
into account for such value as it may have, if any, on the issue of
intent." J.A. 37-38.

   The jury convicted petitioner on the income tax charge and on the
Hobbs Act charge involving the initial June 1, 1984, payment of $900.
It failed to reach a verdict on the other four Hobbs Act counts.

   3. The court of appeals affirmed.  Pet. App. 1-22.  It concluded
that the jury instructions respecting when a personal payoff to a
public official violates the Hobbs Act were correct.  Id. at 9-10.
The court then recognized that "(t)his case revolves primarily around
the question of whether the money (petitioner) received was the result
of extortion or only an illegal campaign contribution.  * * * If the
money was a voluntary campaign contribution, then (petitioner) is
guilty only of violating state election laws." Id. at 11.

   The court of appeals explained that "when an official does not
intend a payment to be a campaign contribution, a jury should be
allowed to infer from the circumstances surrounding the payment that
it is in fact a payoff violating the Hobbs Act." Pet. App. 18.  In
this case, the court noted, petitioner knew that "his continued
support was essential for (the temporary-permit) doctors to receive a
permanent license," and in light of that knowledge, told their
lobbyist that he had not 'heard from' the doctors." Id. at 19.
Although petitioner, Vandergrift, and Dr. Manuel "all knew that cash
campaign contributions greater than fifty dollars were illegal in West
Virginia," the doctors delivered "one hundred dollar bills placed in
sealed envelopes * * * to (petitioner) personally at his office."
Ibid.  The court held that the "evidence supports the conclusion that
the money was never intended by any of the parties to be a campaign
contribution." Id. at 20.  Accordingly, it affirmed the Hobbs Act
conviction.  Ibid.

   Petitioner's only defense to the tax fraud charge was that the
money was a contribution to his reelection campaign.  Because the
court of appeals concluded that the jury's contrary finding was
supported by the evidence, the court affirmed petitioner's conviction
on that count.  Pet. App. 20-22.

                          SUMMARY OF ARGUMENT

   The jury in this case found that petitioner accepted a personal
payoff, not a campaign contribution, from the temporary-permit
doctors.  That pivotal finding provides the basis for affirmance of
petitioner's conviction both under the Hobbs Act and the federal tax
laws.  In light of that finding, it is not necessary for this Court to
address the difficult question of when the solicitation or acceptance
of a campaign contribution constitutes extortion under color of
official right.

   I. The Hobbs Act prohibits a public official from inducing a payoff
for doing his job.  The common law prohibition against extortion
"under color or official right" long prohibited such acts, and in
enacting the Hobbs Act Congress adopted the conventional common law
definition of extortion.  Congress borrowed most directly from New
York's extortion statute, which broadly defined extortion under color
of official right to include receipt by a public official of
compensation (other than his salary) for his official service.  That
is what the jury found occurred here.

   A. Petitioner argues that extortion under color of official right
should be narrowly limited to cases in which an official pretends that
he has the right to a fee.  This proposed limitation is contrary to
the common law origins of the Hobbs Act, the unanimous construction
given the Hobbs Act by the courts of appeals, and this Court's
construction of similar language in other statutes.  Moreover, the
unprecedented narrowing of the statute that petitioner proposes would
convert the crime of extortion under color of official right into what
amounts to a false pretenses offense.

   B. Petitioner also argues that the Hobbs Act does not prohibit the
inducement of campaign contributions in the absence of proof of a
threat or a promise of a specific quid pro quo.  We agree with that
general statement of the law.  Under West Virginia law, as under state
and federal law generally, campaign contributions are lawful if they
are not coerced or made as part of an explicit agreement by the public
official to confer some benefit on the contributor.  The solicitation
of a campaign contribution therefore is ordinarily not "wrongful"
within the meaning of the Hobbs Act, which prohibits the obtaining of
funds only by "wrongful" means.

   Outside the protected area of campaign financing, however,
different principles apply.  The Hobbs Act reaches the inducement of a
personal payoff when the public official knows that the payment is
made on account of his office, since the inducement and making of
personal payoffs to public officials is universally condemned as
"wrongful." As the court of appeals held, the facts adduced at trial
show that petitioner intended to obtain what he received -- a cash
payoff, not a campaign contribution.  And the instructions made it
abundantly clear that the jury did not convict petitioner for
soliciting a campaign contribution.  Thus, even though petitioner
never explicitly told the doctors that his support for their attempt
to obtain permanent licenses was contingent on their making a payoff
to him, it was sufficient that he induced the payoff knowing that the
doctors were likely to pay him in order to secure, retain, and reward
his support for their cause.

   II. Petitioner argues that his tax fraud conviction stands or falls
with the Hobbs Act count.  That is not necessarily so.  Even if the
Court accepts one of petitioner's legal arguments and reverses his
Hobbs Act conviction, that would not affect the correctness of the
jury's conclusion that petitioner obtained a $900 payment that was not
a campaign contribution and that he failed to report it as income.
Only if this Court accepts petitioner's factual contention that he was
convicted for receiving a campaign contribution -- a contention that
was rejected by the jury and the court of appeals -- should his tax
fraud conviction be reversed.

                               ARGUMENT

   I. PETITIONER VIOLATED THE HOBBS ACT BY INDUCING A PERSONAL PAYOFF
UNDER COLOR OF OFFICIAL RIGHT

   Petitioner has briefed this case as if it were established that the
payments the doctors made to him were campaign contributions rather
than personal payoffs.  /5/ The jury, however, rejected the "campaign
contributions" defense and instead determined that petitioner was
personally paid off for his efforts on behalf of the doctors.  In
light of the instructions given by the court, the jury's verdict makes
it very clear that petitioner was not convicted for receiving campaign
contributions.

   The evidence at trial fully supported the jury's conclusion that
petitioner received a payoff;  in view of petitioner's mid-trial
switch of theories, it is not surprising that the jury regarded the
benign characterization of the cash payments as "campaign
contributions" to be a transparent effort to give an appearance of
legitimacy to payments that were actually personal payoffs.  Because
the jury was properly instructed and permissibly found that the
payment for which petitioner was convicted was not a campaign
contribution, much of petitioner's argument in this Court is based on
an erroneous premise.  For the same reason, in light of the jury's
finding, it is unnecessary for this Court to address the question
whether and in what manner the Hobbs Act applies to bona fide campaign
contributions.

   A. The Hobbs Act Prohibits An Elected Official From Inducing A
Personal Payoff In Return For Doing His Job

   The Hobbs Act prohibits extortion, which it defines 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).  Petitioner was
charged and convicted of extortion under color of official right.
That offense has a long history, dating back to 1275.  Lindgren, The
Elusive Distinction Between Bribery and Extortion:  From the Common
Law to the Hobbs Act, 35 U.C.L.A. L. Rev. 815, 841 (1988).  In fact,
while "extortion" today evokes the image of racketeering and the use
of threats of force by private individuals, at common law extortion
was a crime that could be committed only by a public official.  2 W.
LaFave & A. Scott, Substantive Criminal Law 458 (1986);  United States
v. Harding, 563 F.2d 299, 304 (6th Cir. 1977), cert. denied, 434 U.S.
1062 (1978).

   The federal crime of extorting property "under color of official
right" was first enacted as part of Section 2(b) of the
Anti-Racketeering Act of 1934, Ch. 569, Section 2(b), 48 Stat. 979.
/6/ In 1946, the pertinent language was incorporated, unchanged, into
the Hobbs Act, Ch. 537, 60 Stat. 420.  See United States v. Emmons,
410 U.S. 396, 401-408 (1973).  This Court recognized in Emmons that
the Hobbs act "incorporate(d) New York's conventional definition of
extortion -- 'the obtaining of property from another . . . with his
consent, induced by a wrongful use of force or fear, or under color of
official right.' N.Y. Penal Law Section 850 (1909)." 410 U.S. at 406
n.16.  /7/

   In the 1909 New York Penal Law, which was in effect when the
Anti-Racketeering Act and the Hobbs Act were enacted, extortion under
color of official right included the receipt by a "public officer" of
"compensation for his official service" where no compensation is due.
N.Y. Penal Law Section 855 (Ingram 1909);  Lindgren, supra, 35
U.C.L.A. L. Rev. at 898.  /8/ Thus, extortion under color of official
right was understood in New York (and therefore presumably by the
Congress that adopted New York law as the basis for the Hobbs Act) to
apply to the inducement of payoffs by an elected official in return
for his services.  In this respect, the New York law, and derivatively
the Hobbs Act, was fully consistent with the long common law history
of punishing public officials for extortion when they received --
whether by coercion, false pretenses, or bribery -- fees to which they
were not entitled.  See Lindgren, supra, 35 U.C.L.A. L. Rev. at
837-882.  /9/

   Petitioner acknowledges that "the common law offense of extortion *
* * included some forms of bribery." Br. 26.  He nevertheless contends
that the proscription of extortion under color of official right is
limited to cases in which an official pretends that he has a right to
the money he obtains.  Br. 24, 27.  /10/

   The adoption of this contention would lead to a radical narrowing
of the statute's reach.  Under petitioner's theory, a public official
would commit the crime of extortion under color of official right only
if he claimed that a fee was required by law when in fact no such fee
was due.  Under this theory, a public official would not commit
extortion under color of official right when demanding a payoff in
exchange for performing his job, even if there was an explicit demand
for payment or a clear promise of a quid pro quo, unless he falsely
represented that the payment was legally required.

   Petitioner's sweeping contention is inconsistent with the meaning
of the crime of extortion under color of official right at common law
and under the New York extortion statute.  There is no indication that
the common law courts limited the concept of extortion to cases in
which public officials falsely represented that a fee was legally
required.  /11/ And the New York legislature, following the
conventional approach, defined extortion broadly to include various
acts by which a public official improperly obtained "compensation for
his official service." N.Y. Penal Law Section 855 (Ingram 1909);  see
note 8, supra.  That definition was not in any way limited to cases of
misrepresentation or fraud by the public official, but clearly
encompassed cases in which the public official simply demanded
compensation as a condition of doing his job.  /12/

   The limitation suggested by petitioner is also contrary to the
uniform construction of the Hobbs Act by the courts of appeals.  The
issue of the proper construction of the "color of official right"
clause of the Hobbs Act has been litigated extensively in the courts
of appeals, and every circuit that has addressed the issue has
rejected the view that extortion under color of official right covers
only the collection of fees under the pretense that the fees are owed.
 /13/

   Furthermore, petitioner's construction of the phrase "under color
of official right" conflicts sharply with this Court's construction of
similar language in other familiar statutory contexts, where the
requirement that action be "under color of state law" has been
interpreted to include "(m)isuse of power, possessed by virtue of
state law and made possible only because the wrongdoer is clothed with
the authority of state law." United States v. Classic, 313 U.S. 299,
326 (1941) (interpreting the predecessor to 18 U.S.C. 242);  Monroe v.
Pape, 365 U.S. 167, 172 (1961) (interpreting 42 U.S.C. 1983).  As the
courts of appeals have held, exactly the same interpretation is
appropriate for the phrase "under color of official right":  it
applies to the misuse of official power to obtain things of value,
even if there is no pretense of entitlement on the part of the
official.

   Petitioner's theory, if adopted, would produce a striking anomaly
in the federal law of extortion.  An official would commit extortion
under color of official right if the victim paid an excessive fee
believing it was due, but not if the victim was flatly told that he
must make a payoff in order to obtain official action.  If that were
the law, "extortion under color of official right" would have little
in common with the ordinary concept of extortion, but instead would be
converted into a type of fraud or false pretenses offense.  Extortion
is ordinarily understood to mean the act of obtaining money by
consent, where the consent is induced by a threat of some kind of
injury in the future.  See W. LaFave & A. Scott, supra, Section 8.12.
Under petitioner's view of the crime of extortion under color of
official right, however, the victim's consent would be the product not
of a threat, but of a misrepresentation.  As Professor Lindgren has
pointed out, "(l)imiting official extortion only to cases of false
pretenses and excluding coercion would not fit almost anyone's notion
of the correct scope of official extortion." Lindgren, 35 U.S.L.A. L.
Rev. at 895.

   In support of his contention, petitioner relies primarily on the
absence of legislative history indicating any intention to reach other
sorts of corruption by local officials.  Br. 28.  The scope of a
statute, however, is not limited to the specific examples of its
anticipated application that are mentioned in the legislative history.
 Pittston Coal Group v. Sebben, 488 U.S. 105, 115 (1988).  /14/ The
language chosen by Congress -- "extortion * * * under color of
official right" -- indicates that Congress intended to adopt a broad
prohibition against extortionate behavior by public officials, /15/
and its selection of the language of the New York statute indicates an
intention to adopt the conventional meaning of the offense, which New
York law had adopted.

   Petitioner also relies heavily on a 1943 statement that
Representative Hobbs made on the floor of the House, in which he said
that "'(c)olor of official right' means absence of a right but
pretended assertion of right." Br. 20 (quoting 89 Cong. Rec. 3228
(1943)) (emphasis omitted).  Representative Hobbs' statement, however,
was made in response to the concern expressed by another congressman
that the Act "would apply to an initiation fee in a labor union."
Ibid. (statement of Rep. Day).  In context, it appears that
Representative Hobbs was simply assuring the other congressman that
the "color of official right" language in the Act applied only to
public officials or to persons claiming to be public officials, and
did not apply to private persons such as union officers.  His
statement does not justify limiting the reach of the Act so that it is
inapplicable to cases in which a public official demands a personal
payoff to do his job.  /16/

   B. Petitioner Was Convicted Of Obtaining A Personal Payoff, Not A
Campaign Contribution

   The remainder of petitioner's argument in this Court, like the
whole of his argument in the court of appeals, assumes that the Hobbs
Act applies to public officials other than in situations where an
official falsely pretends that a fee is due.  Petitioner's further
contention is that the Act does not prohibit the solicitation of
"campaign contributions, absent proof of a quid pro quo." Br. 35
(argument heading).  The flaw in petitioner's argument, however, is
that he was not convicted for receiving a campaign contribution i.e.,
funds that are intended to be used to defray campaign expenses.  The
jury concluded that he received a personal payoff, not a campaign
contribution, and the evidence supports that conclusion.  In that
setting, it is not necessary for the government to show that the
payment was the product of either an explicit threat or a quid pro
quo.  Instead, where an official is shown to have received a personal
payoff, it is sufficient that the evidence show that he induced the
payoff and that the payoff was made on account of his official
position, both of which were proved in this case.

   The evidence that petitioner was seeking a payoff rather than a
bona fide campaign contribution is compelling.  Instead of contacting
Dr. Manuel directly, petitioner spoke to Vandergrift, who had
previously used the Association's funds to pay a large hotel bill owed
by petitioner.  Tr. 1034-1036.  Going through Vandergrift was a
curious way to seek a campaign contribution, since it was petitioner
who had introduced Vandergrift to Dr. Manuel.  Because Vandergrift's
role as intermediary between the doctors and petitioner related
exclusively to the temporary-permit legislation, making a solicitation
through Vandergrift was especially likely to send the message that a
payment was expected for petitioner's support of the doctors' cause.

   The manner in which petitioner conveyed his demand for money and
handled the $900 June 1, 1985, payment after it was made gave further
indication that he was seeking a payoff, albeit under the guise of
requesting a campaign contribution.  Speaking in a rough tone, Tr.
282, petitioner told Vandergrift that "he had put a couple of thousand
dollars out of his pocket" for his campaign, Tr. 168.  Vandergrift
deduced that he should "replace it in kind," Tr. 210, even though the
evidence indicated that all of the parties to the transaction knew
that cash campaign contributions of more than $50 were illegal, see
Pet. App. 19.  When Vandergrift delivered the nine $100 bills to
petitioner, petitioner did not act surprised and he did not ask for a
check instead.  None of the parties reported the transaction as a
campaign contribution.  C.A. App. 1076-1080, 1102-1114.  /17/

   The timing of the payments is especially revealing.  The payments
continued to be made long after the election was over, and the last
payment was made only two weeks after the favorable legislation was
enacted with petitioner's support.  The timing strongly suggests that
the payments were tied to the legislation, not the campaign.

   Finally, after one of the payments had been made, petitioner made
the highly revealing remark to Vandergrift that "the doctors had taken
good care of him and the debt was paid." Tr. 189.  Thus, the evidence
supports the conclusion that all the parties to the payment --
petitioner, Vandergrift, and the doctors -- regarded the $900 as a
payoff, not a campaign contribution, and that the references to the
campaign were merely window-dressing to give the payoff the appearance
of legitimacy.  /18/

   The jury was properly instructed that it could not convict
petitioner if it concluded that the $900 payment was a campaign
contribution.  The jury was told, for example, that "(m)any public
officials in this country receive political contributions from
individuals who, the official knows, are motivated by a general
gratitude toward him because of his position on certain issues
important to them, or even in the hope that the goodwill generated by
such contributions will make the official more receptive to their
cause," and that "(t)he mere solicitation or receipt of such political
contributions is not of itself illegal." J.A. 33.  The instructions on
the tax fraud count provided that petitioner could not be convicted if
he had used the money "for generally recognized campaign expenses" or
even if the money had been used "to reimburse the political candidate
for out-of-pocket campaign expenses." J.A. 37.  The jury concluded
that although petitioner mentioned during his conversation with
Vandergrift that he had incurred campaign expenses, he was seeking a
personal payoff.

   Petitioner states, Br. 49 n.16, that his campaign finance reports
show that he contributed more than $3,000 of his own money to his 1984
campaign.  But the evidence at trial showed that petitioner received
more than $5,000 from the doctors, well in excess of the amount of his
own funds he claimed to have spent on his campaign.  Yet even if the
amount paid by the doctors had been less than the amount petitioner
spent, that would not render the doctors' payment a campaign
contribution as long as neither side treated them as such.  Any other
conclusion would allow any elected official who contributed to his
campaign to justify a payoff simply by calling it a reimbursement for
personal campaign expenditures.  /19/

   If this case had involved a campaign contribution rather than a
personal payoff, it would have been necessary for the government to
prove that the contribution was obtained by a threat to take
unfavorable action or a specific promise to take favorable action,
i.e., a quid pro quo.  See, e.g., United States v. Biaggi, 909 F.2d
662, 695 (2d Cir. 1990) (an elected official can be convicted under
the Hobbs Act for extorting a campaign contribution only if the
official "directly * * * linked the contribution to specific official
action to be taken by the official");  United States v. Haimowitz, 725
F.2d 1561, 1573 (11th Cir.), cert. denied, 469 U.S. 1072 (1984);
United States v. Dozier, 672 F.2d 531, 537 (5th Cir.), cert. denied,
459 U.S. 943 (1982);  United States v. Cerilli, 603 F.2d 415, 418-421
(3d Cir. 1979), cert. denied, 444 U.S. 1043 (1980).  The Department of
Justice has adopted that position as a policy matter, stating that
"campaign contributions will not be authorized as the subject of a
Hobbs Act prosecution unless they can be proven to have been given in
return for the performance of or abstaining from an official act;
otherwise any campaign contribution might constitute a violation."
Department of Justice, United States Attorneys' Manual (P-H) Section
9-85A.306, at 9-1938.134 (Supp. 1988-2).

   The statutory basis for this special treatment of campaign
contributions is the requirement that the inducement of a payment
under the Hobbs Act be "wrongful," 18 U.S.C. 1951(b)(2), a requirement
that applies to each of the listed means of obtaining property.  See
United States v. Enmons, 410 U.S. at 399 & n.2;  United States v.
French, 628 F.2d 1069, 1074 (8th Cir.) ("It is the wrongful purpose of
the taking under color of official right that makes appellee's conduct
extortion under the Hobbs Act."), cert. denied, 449 U.S. 956 (1980).
It is lawful in West Virginia, as in every other State and under
federal law, for a public official to solicit campaign contributions,
see W. Va. Code Sections 3-8-1 through 3-8-13 (1990);  Buckley v.
Valeo, 424 U.S. 1, 21 (1976), United States v. Brewster, 506 F.2d 62,
67 (D.C. Cir. 1974), but it is universally unlawful for such
contributions to be induced by threats or promises relating to
official action.  See W. Va. Code Section 3-8-12(e) (1990).  A
campaign contribution is therefore "wrongful," and thus subject to
prosecution under the Hobbs Act, only where the connection between the
contribution and the candidate's official acts is clearly conditional.
 A candidate is, of course, free to point out to potential campaign
contributors that he favors their position on an important issue and
to advise them that a contribution to his campaign is therefore in
their best interest.  But a candidate cannot sell his vote by stating
explicitly that his position on a particular issue will depend on
whether he receives a suitable campaign contribution.  /20/

   Where, as in this case, no campaign contribution is at issue, it is
not necessary for the government to prove that the public official
offered a quid pro quo in exchange for payment made to him.  That is
because the demand for and receipt of a personal payoff in return for
performing official services is always wrong, so that the concern for
distinguishing between legitimate campaigning and vote-selling does
not apply.  In United States v. Dozier, 672 F.2d 531, 537 (5th Cir.
1982), the court recognized that "(d)emands for money by an unelected
official may constitute extortion per se." With respect to personal
payoffs, an elected official is no different from an unelected
official, for in that setting the act of receiving payment for an
official act is invariably wrongful.  /21/

   Contrary to petitioner's contention, no error was committed because
the jury was told that the evidence did not have to show that
petitioner "committed or promised to commit a quid pro quo," J.A. 22,
32, in order to convict.  Petitioner suggests that the jury merely had
to find that he received the money from the doctors, but the
instructions showed that the jury also had to conclude (1) that he
"induced" the payoff, J.A. 18, 29;  (2) that the doctors paid
petitioner "with the expectation that (petitioner) would extend to
(the doctors) some benefit or refrain from some harmful action, and
(petitioner) accepted the money knowing it was being transferred to
him with that expectation," J.A. 17-18;  and (3) that the money was
not paid as a "voluntary political contribution," J.A. 30.  In
context, it is clear that the instruction stating that the jury did
not have to find that petitioner promised a quid pro quo simply meant
that if the jury found that the payments to petitioner were personal
payoffs, rather than bona fide campaign contributions, it was
unnecessary for the government to prove that petitioner expressly
conditioned his support for the doctors on the receipt of a payment
from them.

   In sum, what is required in a case involving a personal payoff is
what the district court instructed the jury it had to find in order to
convict petitioner -- proof that the payoff was induced rather than
volunteered, J.A. 30;  see J.A. 18, and proof that the official knew
"the motivation of the victim to make any payment focuses on the
public official's office," J.A. 31;  see J.A. 19.  /22/ As we have
noted, the evidence in this case showed that petitioner demanded money
from the doctors, and it was clear that petitioner did so because he
knew the doctors wanted to secure, retain, and reward his official
support for their efforts to obtain permanent medical licenses.

   The evidence further showed that petitioner "delivered" for the
temporary-permit doctors -- he asked the West Virginia Board of
Medicine not to oppose legislation favorable to the Association, Tr.
321-322, 387-388, he sponsored the legislation, Tr. 180-183, 325-326,
and he badgered the Board to ensure that some of the doctors who could
not qualify even under the new law obtained licenses, Tr. 186-187,
412-418, 592.  Thus, petitioner performed services of the sort the
doctors expected when they made their payments to him, which supports
the jury's conclusion that the parties regarded the funds as a payoff
for services rather than a contribution to a campaign.  Because
petitioner demanded a personal payoff, knowing that the doctors were
likely to accede to the demand because of his office, he was properly
convicted of extortion under color of official right.

   II. PETITIONER'S TAX FRAUD CONVICTION IS VALID EVEN IF HIS HOBBS
ACT CONVICTION IS OVERTURNED

   The court of appeals affirmed petitioner's tax fraud conviction
because, in affirming his extortion conviction, it had rejected his
contention that he merely received a campaign contribution from the
doctors.  Pet. App. 20-21.  As the court of appeals recognized, if
petitioner's Hobbs Act conviction is affirmed, it necessarily follows
that his tax fraud conviction must also be affirmed.  If this Court
reverses the conviction on the Hobbs Act count, however, it does not
follow that the Court must also reverse the conviction on the tax
fraud count.

   Under petitioner's broad argument, extortion under color of
official right prohibits an official only from collecting a fee that
he pretends is due.  Acceptance of that far-reaching view would
require that petitioner's Hobbs Act conviction be reversed.  But even
if extortion under color of official right does not cover the
inducement of a personal payoff, the federal tax laws nevertheless
require that officials report any income received through such
schemes.  Since it is now undisputed that petitioner received $900
from the doctors and did not report it as income, he committed tax
fraud, and nothing about petitioner's broad argument undermines that
conclusion.

   Under petitioner's narrower contention, he should not have been
convicted of a Hobbs Act violation because the government failed to
prove a sufficiently explicit quid pro quo agreement by petitioner to
perform official acts in exchange for the payment.  But if
petitioner's Hobbs Act conviction is reversed on that ground, that
would not change the fact that he received the payment.  Moreover, the
jury concluded that petitioner received it as a personal payoff, since
the jury was instructed that if the payment was "held or used for
present or future expenses of a political campaign or for similar
purposes, it is not taxable income to the recipient," J.A. 37.  /23/
Accordingly, petitioner was required to report the $900 payment as
income whether or not it was received as part of a quid pro quo
arrangement prohibited by the Hobbs Act.

   Only if this Court concludes that the $900 was received as a
campaign contribution would it follow that his tax fraud conviction
should be reversed.  As the jury was instructed, if the payment
"constituted voluntary political contributions, it was not taxable
income and Mr. McCormick's failure to report it on his tax return was
not illegal." J.A. 36.  But there is no basis for the Court to reject
the jury's factual finding that the money was a personal payoff -- a
finding which the court of appeals held was supported by the evidence,
Pet. App. 20 -- and overturn petitioner's tax fraud conviction.

                              CONCLUSION

   The judgment of the court of appeals should be affirmed.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   ROBERT S. MUELLER, III

      Assistant Attorney General

   WILLIAM C. BRYSON

      Deputy Solicitor General

   CHRISTOPHER J. WRIGHT

      Assistant to the Solicitor General

   RICHARD A. FRIEDMAN

      Attorney

   DECEMBER 1990

   /1/ On each occasion on which the Association gave petitioner a
cash payment, Dr. Manuel wrote an Association check with a coded
notation indicating that the check was for petitioner.  The check
would then be cashed, and the cash would be placed in an envelope to
be given to petitioner.  Tr. 318-326.  Dr. Manuel testified that the
last three payments were for petitioner to distribute to other
politicians, Tr. 323-324, 328-329, but there was no evidence that
petitioner gave the money to anyone else, see Tr. 1167-1168.

   /2/ The evidence included petitioner's campaign financial
statements, signed and sworn to by petitioner, which contained a
notice to candidates that contributions of more than $50 from one
contributor in cash, rather than by check or money order, were
improper and that all contributions, regardless of the amount, had to
be reported.  C.A. App. 1102, 1106, 1110, 1111.

   /3/ Because the defense opening statement was transcribed out of
the usual order (Tr. 116), it is included at Tr. 2-13 (and may also be
found at C.A. App. 74-86).

   /4/ However, the jury was instructed that it need not find specific
intent respecting the effect of petitioner's actions on interstate
commerce.  J.A. 22, 32.  That instruction was correct.  See, e.g.,
United States v. Daley, 564 F.2d 645, 649 (2d Cir. 1977), cert.
denied, 435 U.S. 933 (1978).

   /5/ Each of the argument headings in petitioner's brief contends
that his convictions for receiving "campaign contributions" must be
reversed.

   /6/ Section 2(b) of the Anti-Racketeering Act of 1934 proscribed
"(o)btain(ing) the property of another, with his consent, induced by
wrongful use of force or fear, or under color of official right."

   /7/ In support of that point, the Court cited the following
portions of the legislative history of the Hobbs Act:  91 Cong. Rec.
11,842 (1945), (remarks of Rep. Walter);  id. at 11,843 (remarks of
Rep. Michener);  id. at 11,900 (remarks of Rep. Hancock);  ibid.
(remarks of Rep. Hobbs);  id. at 11,906 (remarks of Rep. Robison).

   /8/ New York Penal Law Section 855 (Ingram 1909) provided:

         A public officer who asks, or receives, or agrees to receive
      a fee or other compensation for his official service:

         1. In excess of the fee or compensation allowed to him by
      statute therefor;  or

         2. Where no fee or compensation is allowed to him by statute
      therefor;

         Commits extortion * * * .

   /9/ As this Court has noted, "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." Morissette v. United States, 342 U.S.
246, 263 (1952);  see Taylor v. United States, 110 S. Ct. 2143, 2155
(1990).

   /10/ Petitioner did not make this argument in his petition for a
writ of certiorari or in the courts below.

   /11/ Professor Lindgren notes dozens of English cases in which
officials were convicted of extortion for behavior that did not
involve the collection of a fee under the pretense that it was due.
For example, in a series of cases decided in 1298, officials were
convicted of extortion for accepting payments in lieu of jury duty
from potential jurors who did not want to serve.  See 35 U.C.L.A. L.
Rev. at 855.  And in the 1700s, an official committed extortion by
accepting 42 shillings in return for not taking a defendant arrested
for assault to prison.  Id. at 857.  In addition, the New York courts
affirmed the extortion conviction of a forensic specialist who offered
to generate unfavorable evidence against the driver in an automobile
accident in return for a payoff.  People v. Hansen, 241 N.Y. 532, 150
N.E. 542, 211 N.Y.S.2d 861 (1925), aff'g 211 A.D. 861 (1924).
Obviously, there was no pretense that the fee was owed to the forensic
specialist.

   /12/ In his dissenting opinion in United States v. Cerilli, 603
F.2d 415, 434 (3d Cir. 1979), cert. denied, 444 U.S. 1043 (1980), from
which petitioner quotes at length (Br. 26-27), Judge Aldisert failed
to note New York's entire statutory definition of extortion and thus
interpreted the New York statute as being narrower than it was.

   /13/ See, e.g., United States v. Hathaway, 534 F.2d 386, 392-394
(1st Cir.), cert. denied, 429 U.S. 819 (1976);  United States v.
Trotta, 525 F.2d 1096, 1099-1100 (2d Cir. 1975), cert. denied, 425
U.S. 971 (1976);  United States v. Kenny, 462 F.2d 1205, 1228-1229 (3d
Cir.), cert. denied, 409 U.S. 914 (1972);  United States v. Price, 507
F.2d 1349, 1350 (4th Cir. 1974);  United States v. Williams, 621 F.2d
123, 125-126 (5th Cir. 1980), cert. denied, 450 U.S. 919 (1981);
United States v. Harding, 563 F.2d at 307;  United States v. Braasch,
505 F.2d 139, 151 (7th Cir. 1974), cert. denied, 421 U.S. 910 (1975);
United States v. Brown, 540 F.2d 364, 372-373 (8th Cir. 1976);  United
States v. McClelland, 731 F.2d 1438, 1439 (9th Cir. 1984), cert.
denied, 472 U.S. 1010 (1985);  United States v. Hall, 536 F.2d 313,
320-321 (10th Cir.), cert. denied, 429 U.S. 919 (1976);  United States
v. Swift, 732 F.2d 878, 879-880 (11th Cir. 1984), cert. denied, 469
U.S. 1158 (1985).

   /14/ Petitioner begins his argument by stating that the "under
color of official right" clause is hardly mentioned in the legislative
history of the Hobbs Act, which focused on labor racketeering.  Br.
14-15.  There is, of course, no merit to petitioner's suggestion that
despite its broad language the Act should be limited to labor
racketeering simply because the legislative debates focused on that
topic.

   /15/ Relying on United States v. Bass, 404 U.S. 336, 349-350
(1971), petitioner notes (Br. 29-31) that a "clear statement" is
necessary before this Court will conclude that Congress has made a
federal crime of conduct traditionally regulated by the States.  The
textual statement "under color of official right" satisfies that
requirement, particularly when coupled with the broad jurisdictional
reach of the statute.  See United States v. Culbert, 435 U.S. 371, 373
(1978) ("(T)he statutory language sweeps within it all persons who
have 'in any way or degree . . . affect(ed) commerce . . . by robbery
or extortion.' 18 U.S.C. Section 1951(a) (1976 ed.).  These words do
not lend themselves to restrictive interpretation;  as we have
recognized, they 'manifest() a purpose to use all the constitutional
power Congress has to punish interference with interstate commerce by
extortion, robbery or physical violence.' Stirone v. United States,
361 U.S. 212, 215 (1960).").

   /16/ Petitioner also suggests (Br. 33 n.13) that proof of
"coercion" -- by which he apparently means evidence of "force,
violence, or fear" -- should be required in prosecutions for extortion
under color of official right.  As the courts of appeals have
unanimously agreed, however, the Hobbs Act is phrased in the
disjunctive, and proscribes extortion by either "wrongful use of
actual or threatened force, violence, or fear" or "under color of
official right." In a dissenting opinion in United States v. Cerilli,
603 F.2d at 429, on which petitioner relies, Judge Aldisert
"concede(d) that a purely semantic approach to the statutory language
can substantiate a decision that no duress need be proved," but
thought that a literal interpretation would have prevailed only "(i)n
an earlier era of our jurisprudential tradition." The Criminal
Division of the Department of Justice once erroneously interpreted the
statute in the same manner.  See United States Dep't of Justice, Labor
Racketeering Manual 18-19 (1971).  We believe that interpreting the
disjunctive language in the statute to provide independent grounds for
liability is entirely sensible and cannot be dismissed simply by the
pejorative use of the term "literal interpretation" and the suggestion
that such an approach to statutory construction is outmoded.

   /17/ As the district court instructed the jury, J.A. 37-38, the
fact that a public official violated some state campaign financing law
does not convert his solicitation of campaign contributions into the
solicitation of a payoff.  The violation of a state law governing
campaign financing may be relevant to determining the public
official's intent, but it does no ipso facto render his acceptance of
funds a violation of the Hobbs Act.  The court of appeals correctly
noted that "(i)f the money was a voluntary campaign contribution, then
(petitioner) is guilty only of violating state election laws." Pet.
App. 11.

   /18/ Petitioner contends (Br. 4) that "the government's own theory
was that the payments were intended to reimburse Mr. McCormick for
expenses he had incurred in his reelection campaign." That is not so.
The government's theory is and has been that petitioner "receive(d)
cash payments for doing his job." Tr. 1161.  Although petitioner
mentioned that he had paid some money out of his own pocket in
connection with his campaign when he demanded money from the doctors,
we think that Vandergrift correctly ascertained that petitioner did
not want a campaign contribution, but instead wanted a cash payoff.

   /19/ There is no merit to petitioner's contention, Br. 44, that the
factors mentioned by the court of appeals as bearing on the question
whether a payment was a campaign contribution or a personal payoff are
unduly vague.  Petitioner misunderstands the purpose of those factors.
 Those factors are not designed to determine "whether a political
contribution violates the Hobbs Act," Pet. Br. 42, but to distinguish
campaign contributions from "payments (that) were never intended to be
legitimate campaign contributions," Pet. App. 17.  The factors listed
by the court of appeals to make that determination include such
common-sense considerations as whether the payment was made in cash or
by check, whether it was delivered to the official personally, and
whether the payor or the official treated the payment as a campaign
contribution.  Ibid.  Where, as here, a payment is delivered in cash
directly to the elected official who does not treat the payment as a
contribution to his election campaign, there is nothing unfair or
surprising about concluding that the payment was not a campaign
contribution, and that the official's inducement of the payment was
therefore a wrongful use of his public office.

   /20/ Accordingly, having concluded that the evidence did not
sufficiently show that an elected official had coupled a demand for a
campaign contribution with a promise to perform an official act, the
court in United States v. Haimowitz, supra, 725 F.2d at 1573,
correctly reversed a Hobbs Act conviction.

   /21/ The dissenting judge in United States v. Cerilli, 603 F.2d at
437, asked if a governor "would be guilty of a Hobbs Act violation if
he now were to appear at a fundraising dinner and solicit
contributions for his political party" from businessmen?" The answer
is no, because political contributions are different from personal
payoffs.  But it would be a violation for an elected official in such
a situation to solicit personal payoffs rather than political
contributions or to threaten to change position on an important issue
in the absence of a sufficient contribution.

   Of course, if a particular State made it lawful for an elected
official to accept campaign contributions in exchange for the
performance of official duties, a Hobbs Act prosecution could not be
based on such conduct, because it would not be "wrongful." But we are
aware of no State in which such conduct is lawful, just as we are
aware of no State in which it is lawful to use the threat of violence
to obtain property;  in the case of personal payoffs to public
officials, as in the case of extortion by threat of violence, the
element of wrongfulness will invariably be satisfied.

   /22/ Although the inducement in this case was quite explicit
(petitioner said "he hadn't heard from the foreign physicians," and
petitioner "wanted to know what (Vandergrift) was going to do about
it," Tr. 167-168), it is not necessary for the government to show an
explicit inducement to satisfy the requirements of the Hobbs Act.
Even in the absence of an express request for payment, an inference of
unlawful inducement can be drawn from factors such as the repeated
acceptance of substantial benefits, see United States v. Biaggi, 909
F.2d at 669, or the acceptance of payments by a public official in a
setting in which it is understood that payments are expected, United
States v. Egan, 860 F.2d 904, 907 (9th Cir. 1988).  A number of courts
of appeals have held that the proof of inducement is sufficient as
long as the public official simply accepts something of value, knowing
that it has been conferred because of his office.  See, e.g., United
States v. Evans, 910 F.2d 790, 796-797 (11th Cir. 1990);  United
States v. Garner, 837 F.2d 1404, 1421-1422 (7th Cir.), cert. denied,
486 U.S. 1035 (1988);  United States v. Spitler, 800 F.2d 1267,
1274-1275 (4th Cir. 1986);  United States v. Jannotti, 673 F.2d 578,
594-596 (3d Cir. (en banc), cert. denied, 457 U.S. 1106 (1982);
United States v. Butler, 618 F.2d 411, 417-418 (6th Cir.), cert.
denied, 447 U.S. 927 (1980), and cases cited therein.  It is not
necessary in this case for the Court to address the question whether
an inducement based on the public official's office rather than his
conduct is sufficient to satisfy the statute, since the inducement in
this case came directly from petitioner and was explicit.

   /23/ The jury was also told that if the money was "used to
reimburse the candidate for out-of-pocket campaign expenses paid by
him" then it was not taxable.  J.A. 37.