# McCormick v. United States/Concurrence Scalia

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Scalia
* Dissenting Opinion Stevens
Justice SCALIA, concurring.
I agree with the Court's conclusion and, given the assumption on which this case was briefed and argued, with the reasons the Court assigns. If the prohibition of the Hobbs Act, 18 U.S.C. § 1951, against receipt of money "under color of official right" includes receipt of money from a private source for the performance of official duties, that ambiguously described crime assuredly need not, and for the reasons the Court discusses should not, be interpreted to cover campaign contributions with anticipation of favorable future action, as opposed to campaign contributions in exchange for an explicit promise of favorable future action.
I find it unusual and unsettling, however, to make such a distinction without any hint of a justification in the statutory text: § 1951 contains not even a colorable allusion to campaign contributions or quid pro quos. I find it doubly unsettling because there is another interpretation of § 1951, contrary to the one that has been the assumption of argument here, that would render the distinction unnecessary. While I do not feel justified in adopting that interpretation without briefing and argument, neither do I feel comfortable giving tacit approval to the assumption that contradicts it. I write, therefore, a few words concerning the text of this statute, and the history that has produced the unexamined assumption underlying our opinion.
Section 1951(a) provides: "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 . . . shall be fined not more than $10,000 or imprisoned not more than twenty years, or both." Section 1951(b)(2) 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." The relevant provisions were enacted as part of the Anti-Racketeering Act of 1934, 48 Stat. 979, and were carried forward without change in the Hobbs Act of 1948. For more than 30 years after enactment, there is no indication that they were applied to the sort of conduct alleged here.
When, in the 1960s, it first occurred to federal prosecutors to use the Hobbs Act to reach what was essentially the soliciting of bribes by state officials, courts were unimpressed with the notion. They thought that public officials were not guilty of extortion when they accepted, or even when they requested, voluntary payments designed to influence or procure their official action. United States v. Hyde, 448 F.2d 815, 833 (CA5 1971) ("The distinction from bribery is therefore . . . the fear and lack of voluntariness on the part of the victim"); United States v. Addonizio, 451 F.2d 49, 72 (CA3 1971) ("[W]hile the essence of bribery is voluntariness, the essence of extortion is duress"); United States v. Kubacki, 237 F.Supp. 638, 641 (ED Pa.1965) (same). Not until 1972 did any court apply the Hobbs Act to bribery. See United States v. Kenny, 462 F.2d 1205, 1229 (CA3 1972) ("kickbacks" by construction contractors to public officials established extortion "under color of official right," despite absence of "threat, fear, or duress"). That holding was soon followed by the Seventh Circuit in United States v. Braasch, 505 F.2d 139, 151 (1974), which said that "[s]o long as the motivation for the payment focuses on the recipient's office, the conduct falls within the ambit of 18 U.S.C. § 1951." While Kenny, Braasch, and subsequent cases were debated in academic writing, compare Ruff, Federal Prosecution of Local Corruption: A Case Study in the Making of Law Enforcement Policy, 65 Georgetown L.J. 1171 (1977) (criticizing Kenny ), with Lindgren, The Elusive Distinction between Bribery and Extortion: From the Common Law to the Hobbs Act, 35 UCLA L.Rev. 815 (1988) (defending Kenny ), the Courts of Appeals accepted the expansion with little disagreement, see, e.g., United States v. Harding, 563 F.2d 299, 302-303 (CA6 1977); United States v. Hathaway, 534 F.2d 386, 393 (CA1 1976); United States v. Hall, 536 F.2d 313, 320-321 (CA10 1976); but see United States v. Cerilli, 603 F.2d 415, 426-437 (CA3 1979) (Aldisert, J., dissenting), and this Court has never had occasion to consider the matter.
It is acceptance of the assumption that "under color of official right" means "on account of one's office" that brings bribery cases within the statute's reach, and that creates the necessity for the reasonable but textually inexplicable distinction the Court makes today. That assumption is questionable. "The obtaining of property . . . under color of official right " more naturally connotes some false assertion of official entitlement to the property. This interpretation might have the effect of making the § 1951 definition of extortion comport with the definition of "extortion" at common law. One treatise writer, describing "extortion by a public officer," states: "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 790-791 (1957).
It also appears to be the case that under New York law, which has long contained identical "under color of official right" language and upon which the Hobbs Act is said to have been based, see Ruff, supra, at 1183, bribery and extortion were separate offenses. An official charged with extortion could defend on the ground that the payment was voluntary and thus he was guilty only of bribery. People v. Feld, 262 A.D. 909, 28 N.Y.S.2d 796, 797 (Sup.Ct.1941); see People v. Dioguardi, 8 N.Y.2d 260, 273-274, 203 N.Y.S.2d 870, 168 N.E.2d 683 (1960). I am aware of only one pre-Hobbs Act New York prosecution involving extortion "under color of official right," and there the defendant, a justice of the peace, had extracted a payment from a litigant on the false ground that it was due him as a court fee. People v. Whaley, 6 Cow. (N.Y.) 661, 661-663 (Sup.Ct.1827).
Finally, where the United States Code explicitly criminalizes conduct such as that alleged in the present case, it calls the crime bribery, not extortion-and like all bribery laws I am aware of (but unlike § 1951 and all other extortion laws I am aware of) it punishes not only the person receiving the payment but the person making it. See 18 U.S.C. § 201(b) (criminalizing bribery of and by federal officials). #fn-s Compare 18 U.S.C. § 872 (criminalizing extortion by federal officials, making no provision for punishment of person extorted). McCormick, though not a federal official, is subject to federal prosecution for bribery under the Travel Act, 18 U.S.C. § 1952, which criminalizes the use of interstate commerce for purposes of bribery-and reaches, of course, both the person giving and the person receiving the bribe.
I mean only to raise this argument, not to decide it, for it has not been advanced and there may be persuasive responses. See, e.g., Lindgren, supra, at 837-889 (arguing that under early common law bribery and extortion were not separate offenses and that extortion did not require proof of a coerced payment). But unexamined assumptions have a way of becoming, by force of usage, unsound law. See, e.g., Moskal v. United States, 498 U.S. ----, 111 S.Ct. 461, 112 L.Ed.2d 449 (1990). Before we are asked to go further down the road of making reasonable but textually unapparent distinctions in a federal "payment for official action" statute-as we unquestionably will be asked, see ante, at 267, n. 5 I think it well to bear in mind that the statute may not exist.
Justice STEVENS, with whom Justice BLACKMUN and Justice O'CONNOR join, dissenting.
An error in a trial judge's instructions to the jury is not ground for reversal unless the defendant has made, and preserved, a specific objection to the particular instruction in question. Rule 30 of the Federal Rules of Criminal Procedure provides, in part: "No party may assign as error any portion of the charge or omission therefrom unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which that party objects and the grounds of the objection."
This Court's disapproval of portions of the reasoning in the Court of Appeals' opinion, 896 F.2d 61 (CA4 1990), is not a sufficient ground for reversing its judgment. It is perfectly clear that the indictment charged a violation of the Hobbs Act, 18 U.S.C. § 1951, and that the evidence presented to the jury was adequate to prove beyond a reasonable doubt that petitioner knowingly used his public office to make or imply promises or threats to his constituents for purposes of pressuring them to make payments that were not lawfully due him. Apart from its criticism of the Court of Appeals' opinion, the Court's reversal of petitioner's conviction, in the final analysis, rests on its view that the jury instructions were incomplete because they did not adequately define the concept of "voluntary" contribution in distinguishing such contributions from extorted payments, and because the instructions did not require proof that petitioner made an "explicit" promise (or threat) in exchange for a campaign contribution. In my opinion the instructions were adequate and, in any event, to the extent that they were ambiguous, petitioner failed to preserve a proper objection.
In the Court of Appeals, petitioner argued that his conviction under the Hobbs Act was not supported by sufficient evidence. In reviewing such a contention, the appellate court must, of course, view the evidence in the light "most favorable to the Government." Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). So viewed, it is perfectly clear that petitioner could properly have been found by the jury to be guilty of extortion.
Petitioner's crime was committed in two stages. Toward the end of May 1984, petitioner held an "unfriendly" conversation with Vandergrift, the representative of the unlicensed doctors, which the jury could have interpreted as an implied threat to take no action on the licensing legislation unless he received a cash payment as well as an implicit promise to support the legislation if an appropriate cash payment was made. Because the statute applies equally to the wrongful use of political power by a public official as to the wrongful use of threatened violence, that inducement was comparable to a known thug's offer to protect a storekeeper against the risk of severe property damage in exchange for a cash consideration. Neither the legislator nor the thug needs to make an explicit threat or an explicit promise to get his message across.
The extortion was completed on June 1, 1984, when Vandergrift personally delivered an envelope containing nine $100 bills to petitioner. The fact that the payment was not reported as a campaign contribution, as required by West Virginia law, or as taxable income, as required by federal law, together with other circumstantial evidence, adequately supports the conclusion that the money was intended as a payment to petitioner personally to induce him to act favorably on the licensing legislation. His covert acceptance of the cash-indeed, his denial at trial that he received any such payment-supports the conclusion that petitioner understood the payers' intention and that he had implicitly (at least) promised to provide them with the benefit that they sought.
As I understand its opinion, the Court would agree that these facts would constitute a violation of the Hobbs Act if the understanding that the money was a personal payment rather than a campaign contribution had been explicit rather than implicit and if the understanding that, in response to the payment, petitioner would endeavor to provide the payers with the specific benefit they sought had also been explicit rather than implicit. In my opinion there is no statutory requirement that illegal agreements, threats, or promises be in writing, or in any particular form. Subtle extortion is just as wrongful-and probably much more common than the kind of express understanding that the Court's opinion seems to require.
Nevertheless, to prove a violation of the Hobbs Act, I agree with the Court that it is essential that the payment in question be contingent on a mutual understanding that the motivation for the payment is the payer's desire to avoid a specific threatened harm or to obtain a promised benefit that the defendant has the apparent power to deliver, either through the use of force or the use of public office. In this sense, the crime does require a "quid pro quo." Because the use of the Latin term "quid pro quo " tends to confuse the analysis, however, it is important to clarify the sense in which the term was used in the District Court's instructions.
As I have explained, the crime of extortion was complete when petitioner accepted the cash pursuant to an understanding that he would not carry out his earlier threat to withhold official action and instead would go forward with his contingent promise to take favorable action on behalf of the unlicensed physicians. What he did thereafter might have evidentiary significance, but could neither undo a completed crime or complete an uncommitted offense. When petitioner took the money, he was either guilty or not guilty. For that reason, proof of a subsequent quid pro quo-his actual support of the legislation-was not necessary for the Government's case. And conversely, evidence that petitioner would have supported the legislation anyway is not a defense to the already completed crime. The thug who extorts protection money cannot defend on the ground that his threat was only a bluff because he would not have smashed the shopkeeper's windows even if the extortion had been unsuccessful. It was in this sense that the District Court correctly advised the jury that the Government did not have to prove the delivery of a postpayment quid pro quo, as illustrated by these excerpts from the instructions:
"It would not be illegal, in and of itself, for the defendant to solicit or accept political contributions from foreign doctors who would benefit from this legislation.
extortion, you must first be convinced beyond a reasonable doubt that the payment alleged in a given count in the indictment was made by or on behalf of the doctors with the expectation that such payment would influence Mr. McCormick's official conduct, and with the knowledge on the part of Mr. McCormick that they were paid to him with that expectation by virtue of the office he held.
"It is not illegal, in and of itself, for an elected legislator to solicit or accept legitimate campaign contributions, on behalf of himself or other legislators, from individuals who have a special interest in pending legislation. The solicitation or receipt of such contributions violates the federal extortion law only when the payment is wrongfully induced under color of official right.
"Many public officials receive legitimate 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 good will generated by such contributions will make the official more receptive to their cause.
"The mere solicitation or receipt of such political contributions is not illegal.
"It is not necessary that the government prove in this case that the defendant misused his public office in the sense that he granted some benefit or advantage to the person or persons, here the unlicensed doctors, who allegedly paid him money. Though the unlicensed doctors may have gotten no more than their due in the defendant's performance of his official duties, the defendant's receipt of money, if you find that to have occurred, for the performance of such acts is a misuse of office. When a public official accepts the payment for an implicit promise of fair treatment, if any such promise there were, there is an inherent threat that without the payment, the public official would exercise his discretion in an adverse manner. A claim that a public official's actions would have been the same whether or not he received the alleged payments is, for this purpose, irrelevant and is no defense to the charges contained in counts one through five of the indictment.
"So it is not necessary that the government prove that the defendant committed or promised to commit a quid pro quo, that is, consideration in the nature of official action in return for the payment of the money not lawfully owed. Such a quid pro quo may, of course, be forthcoming in an extortion case or it may not. In either event it is not an essential element of the crime." App. 20-22.
This Court's criticism of the District Court's instructions focuses on this single sentence:
"Voluntary is that which is freely given without expectation of benefit." Ante, at 265; see also ante, at 269, 272-273, 274-275.
The Court treats this sentence as though it authorized the jury to find that a legitimate campaign contribution is involuntary and constitutes extortion whenever the contributor expects to benefit from the candidate's election. In my opinion this is a gross misreading of that sentence in the context of the entire set of instructions.
In context, the sentence in question advised the jury that a payment is voluntary if it is made without the expectation of a benefit that is specifically contingent upon the payment. An expectation that the donor will benefit from the election of a candidate who, once in office, would support particular legislation regardless of whether or not the contribution is made, would not make the payment contingent or involuntary in that sense; such a payment would be "voluntary" under a fair reading of the instructions, and the candidate's solicitation of such contributions from donors who would benefit from his or her election is perfectly legitimate. If, however, the donor and candidate know that the candidate's support of the proposed legislation is contingent upon the payment, the contribution may be found by a jury to have been involuntary or extorted.
In my judgment, the instructions, read as a whole, properly focused the jury's attention on the critical issue of the candidate's and contributor's intent at the time the specific payment was made. But even if they were ambiguous, or subject to improvement, they certainly do not provide a basis for reversing the conviction when the petitioner failed to advise the District Court of an error this Court now believes it has detected.
In the Court of Appeals, petitioner did not argue that any specific instruction was erroneous or that the District Court erred by refusing to give any instruction that petitioner had tendered. Nor, at trial, did petitioner request the judge to instruct the jury that any promise or threat in exchange for the payment had to be explicit or to clarify the meaning of a "voluntary" contribution as distinguished from an illegally induced payment. In fact, the District Court's instruction that a finding that an "implicit promise of fair treatment" on the part of petitioner in exchange for the contribution would support a Hobbs Act conviction came in part from petitioner's tendered instructions at trial. For example, defendant's requested instruction number 8-A in the District Court proposed that the jury be instructed as follows:
"To prove the crime of extortion under color of official right, the government must establish a demand for payment by the official.
"This demand for payment may be established by the words or conduct of the defendant himself. It also may be communicated by the nature of the defendant's prior conduct of his office." 13 Record, Supp. 1.
Similarly, defendant's requested instruction number 11-A read as follows:
"In order to find Mr. McCormick guilty of extortion, you must be convinced beyond a reasonable doubt that the payments alleged in the indictment were paid by [the doctors] with the expectation that they would influence Mr. McCormick's official conduct, and with the knowledge on the part of Mr. McCormick that they were paid to him with that expectation." Ibid.
As to the Government's requested instruction number 17, which began with the sentence, "When a public official accepts a payment for an implicit promise of fair teatment, there is an inherent threat that, without the payment, the public official would exercise his discretion in an adverse manner" (emphasis added), petitioner did not object in any way to the legal substance. See 7 Tr. 1070 (Dec. 5, 1988). See also id., at 1071, 1077-1078 (petitioner's counsel conceding that express or implied promise by McCormick to support legislation in exchange for contribution would support finding of Hobbs Act violation).
Given that the District Court's instructions to the jury largely tracked the instructions requested by petitioner at trial, I can see no legitimate reason for this Court now to find these instructions inadequate. Because I am convinced that the petitioner was fairly tried and convicted by a properly instructed jury, I would affirm the judgment of the Court of Appeals. Of course, an affirmance of the Court of Appeals' judgment would not mean that we necessarily affirm the Court of Appeals' opinion. It is sufficient that an affirmance of McCormick's conviction rest on the legal and factual theories actually presented to the jury, whether or not these theories were the ones relied upon by the Court of Appeals.
I respectfully dissent.

## Notes

* ↑ The supplemental charge to the jury was equally clear:
* ↑ "Serving constituents and supporting legislation that will benefit the district and individuals and groups therein is the everyday business of a legislator. It is also true that campaigns must be run and financed. Money is constantly being solicited on behalf of candidates, who run on platforms and who claim support on the basis of their views and what they intend to do or have done. Whatever ethical considerations and appearances may indicate, to hold that legislators commit the federal crime of extortion when they act for the benefit of constituents or support legislation furthering the interests of some of their constituents, shortly before or after campaign contributions are solicited and received from those beneficiaries, is an unrealistic assessment of what Congress could have meant by making it a crime to obtain property from another, with his consent, 'under color of official right.' 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 statutory language more explicit than the Hobbs Act contains to justify a contrary conclusion." Ante, at 272-273.
* ↑ "In determining the effect of this instruction on the validity of respondent's conviction, we accept at the outset the well-established proposition that a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge. Boyd v. United States, 271 U.S. 104, 107, 46 S.Ct. 442, 443, 70 L.Ed. 857 (1926). While this does not mean that an instruction by itself may never rise to the level of constitutional error, see Cool v. United States, 409 U.S. 100, 93 S.Ct. 354, 34 L.Ed.2d 335 (1972), it does recognize that a judgment of conviction is commonly the culmination of a trial which includes testimony of witnesses, argument of counsel, receipt of exhibits in evidence, and instruction of the jury by the judge. Thus not only is the challenged instruction but one of many such instructions, but the process of instruction itself is but one of several components of the trial which may result in the judgment of conviction." Cupp v. Naughten, 414 U.S. 141, 146-147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973).
* ↑ The Court cites no authority for its novel suggestion that an appellate court's judgment affirming a criminal conviction should be reversed even though no reversible error occurred during the trial. Just this Term, the Court in Arizona v. Fulminante, --- U.S. ----, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), affirmed a state court judgment without approving of the appellate court's analysis. In that case, the Arizona Supreme Court had held that a criminal defendant's coerced confession should have been suppressed and that no harmless-error analysis could be used to save the conviction. This Court, while affirming the judgment that the conviction had to be reversed, nevertheless held that the harmless-error rule was applicable to coerced confessions, but that the error in the particular case was not harmless. The Court's disapproval of a lower appellate court's analysis does not, therefore, necessarily require a reversal of its judgment. See also K Mart Corp. v. Cartier, Inc., 485 U.S. 176, 185, 108 S.Ct. 950, 957, 99 L.Ed.2d 151 (1988) ("Although we reject the Court of Appeals' analysis, we nevertheless agree with its conclusion . . ."); Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984) ("[S]ince this Court reviews judgments, not opinions, we must determine whether the Court of Appeals' legal error resulted in an erroneous judgment . . ." (footnotes omitted)).