# McCormick v. United States

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## Concurring Opinion

    Scalia

## Dissenting Opinion

    Stevens
United States Supreme Court
500 U.S. 257
McCormick v. United States
No. 89-1918 Argued: Jan. 8, 1991. --- Decided: May 23, 1991
Syllabus
Petitioner McCormick, a member of the West Virginia House of Delegates in 1984, was a leading advocate of a legislative program allowing foreign medical school graduates to practice under temporary permits while studying for the state licensing exams. Some doctors practiced for years under the program, as they repeatedly failed those exams. He sponsored a bill, sought by an organization of those doctors, extending the program's expiration date and later agreed to sponsor legislation in the 1985 session that would grant the doctors a permanent license by virtue of their years of experience. After advising the doctors' lobbyist, during his 1984 reelection campaign, that, inter alia, he had heard nothing from the doctors, he received four cash payments from them, which he neither listed as campaign contributions nor reported as income on his 1984 federal income tax return. In 1985, he sponsored the permanent licensing legislation, and, after it was enacted, he received another payment from the doctors. Subsequently, he was indicted in the Federal District Court on five counts of violating the Hobbs Act, by extorting payments under color of official right, and one count of filing a false income tax return. The jury was instructed that extortion under color of official right does not occur where a "public official receives a . . . voluntary political contribution" and that "[v]oluntary is that which is freely given without expectation of benefit." The jury was also instructed on the tax count that a "voluntary" political contribution is not taxable income provided that the money is used for campaign expenses. McCormick was convicted of one Hobbs Act count and the tax violation, and the Court of Appeals affirmed. It found that an elected official's conviction under the Hobbs Act does not require proof of a quid pro quo-a payment made in return for an explicit promise or undertaking by the official to perform or not to perform an official act-unless the payments are "legitimate" campaign contributions. It then listed seven factors to be considered in making an extortion determination and concluded that McCormick extorted money from the doctors and that the parties never intended that money to be a campaign contribution.
Held:
1. The Court of Appeals erred in affirming McCormick's conviction under the Hobbs Act, because a quid pro quo is necessary for a conviction when an official receives a campaign contribution, regardless of whether it is a legitimate contribution. Pp. 268-275.
(a) The court affirmed the conviction on legal and factual grounds that were never submitted to the jury when it announced a rule of law for determining when payments are made under color of official right and found sufficient evidence to support its extortion findings. Assuming that the court was correct on the law, the judgment should have been set aside and a new trial ordered, since matters of intent are for the jury to consider, and since each of the court's seven factors presents an issue of historical fact. Pp. 269-270.
(b) A Hobbs Act violation would not be made out here even assuming an unfavorable response to all seven of the Court of Appeals' inquiries, including the factors of whether the official acted in his official capacity at or near the time of payment, whether he had supported legislation before the payment, and whether he had solicited the payor individually. To hold that legislators commit the federal crime of extortion when they act for their constituents' benefit or support legislation furthering their constituents' interests, shortly before or after they solicit or receive campaign contributions from those beneficiaries, is an unrealistic assessment of what Congress could have meant when it made obtaining property from another "under color of official right" a crime. Rather, under these circumstances, property is extorted in violation of the Hobbs Act only when an official asserts that his official conduct will be controlled by the terms of the promise or undertaking. Pp. 271-274.
(c) The Government's argument that the jury convicted on the basis that the payment was not a campaign contribution is mere speculation, since the instructions permitted the jury to find McCormick guilty of extortion if the payment, even though a campaign contribution, was not voluntary. Nor can the tax conviction be relied on to show that the jury believed that the payment was not a contribution for Hobbs Act purposes, since the instruction on the tax count also failed to require the jury to find that the payment was not a contribution before it could convict on that count. Pp. 274-275.
2. The Court of Appeals erred in basing its affirmance of the tax conviction solely on the extortion conviction. The extortion conviction does not demonstrate that the payments were not campaign contributions and hence taxable, since the instructions permitted the jury to convict McCormick of the tax charge if it was convinced that the payments were campaign contributions but was also convinced that the money was extorted. However, this finding does not necessarily exhaust the possible grounds for affirming on the tax count. Pp. 275-276.
896 F.2d 61 (CA 4 1990), reversed and remanded.
WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and MARSHALL, SCALIA, KENNEDY, and SOUTER, JJ., joined. SCALIA, J., filed a concurring opinion. STEVENS, J., filed a dissenting opinion, in which BLACKMUN and O'CONNOR, JJ., joined.
Rudolph L. di Trapano, Charleston, W.Va., for petitioner.
Christopher J. Wright, Washington, D.C., for respondent.
Justice WHITE delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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