Opinion

United States v. Edward O'Grady

  • 742 F.2d 682
  • 1984 U.S. App. LEXIS 20565
Court
Court of Appeals for the Second Circuit
Filed
Jul 12, 1984
Status
Published
Author
Pierce
On the bench
Meskill, Lumbaad, Pierce, Feinberg, Kaufman, Kearse, Cardamone, Newman, Winter, Pratt, Van Graafeiland, Mansfield, Lumbard, Oakes, Mes-Kill, Carda-Mone
Cited by
51 cases

"inducement can take many forms, some more subtle than others"

How later courts described this case

  • "inducement can take many forms, some more subtle than others"
  • prosecution must show defendant "did something" to induce payment
  • altering position on "pattern-of-receipt" instruction in Hobbs Act prosecution to avoid even division of in banc court
  • “Although receipt of benefits by a public official is a necessary element of the crime, there must also be proof that the public official did something, under color of his public office, to cause the giving of benefits”

Written by the judges who cited it.

The opinion

PIERCE, Circuit Judge, with whom FEINBERG, Chief Judge, IRVING R. KAUFMAN, JON O. NEWMAN, KEARSE, CARDAMONE, WINTER and GEORGE C. PRATT, Circuit Judges, join,

concurring.

I concur in the majority opinion and in its holding that inducement is an essential element of the crime of extortion in a Hobbs Act prosecution and, therefore, that the district court erred in instructing the jury that “[t]he Government need not show that the defendant in words or otherwise, induced, requested, demanded, or solicited the benefits” received. I write separately, however, to emphasize that where warranted by the evidence, as herein, the jury should be permitted to infer inducement by the defendant based upon a finding of repeated acceptances over, a period of time of substantial benefits (i.e., benefits of a nature and magnitude which reasonably could affect a public official’s exercise of his or her duties).

The majority opinion recognizes that inducement “can take many forms, some more subtle than others.” My concern is that while in some cases there may be express inducement, in other cases, it may be implied. The issue. of whether there exists inducement, express or implied, must be determined by the fact-finder, here a jury. In this case, the jury instruction was erroneous because in effect it mandated an inference of inducement merely upon a finding of acceptance of benefits with knowledge of the donor’s motivation. Given a correct instruction, however, the jury would have been free, if it chose to do so, to infer inducement from a finding of repeated acceptances over a period of time of substantial benefits. Such an instruction would recognize that the repeated acceptances of such benefits could, although it need not necessarily, constitute a communicative act amounting to inducement by implication. In short, given a proper charge, the jury could find that such continued acceptances of unwarranted' benefits served to communicate a message inducing such benefits and, thus, constituted extortionate misuse of the power of public office.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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