McCORMICK v. UNITED STATES

No. 89-1918

L. McCORMICK, PETITIONER v.UNITED STATES

[May 23, 1991]

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 of ficial 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 of ficial 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, 28 N. Y. S. 2d 796, 797 (Sup. Ct. 1941); see People v. Dio guardi, 8 N. Y. 2d 260, 273-274 (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 crimi nalizes 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). ^[n.1] 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. — (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 9, n. 5 — I think it well to bear in mind that the statute may not exist.

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Notes

1 Section 201(b)(2) prescribes penalties for anyone who

"being a public official or person selected to be a public official, directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for:

"(A) being influenced in performance of any official act;

"(B) being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud on the United States; or

"(C) being induced to do or omit to do any act in violation of the official duty of such official or person."

Section 201(b)(1) provides penalties for anyone who "corruptly gives, offers or promises anything of value to any public official or person who has been selected to be a public official" for the same three purposes.