United States v. Edward O'Grady

VAN GRAAFEILAND,

Circuit Judge, concurring in part and dissenting in part.

As is apparent from disparate judicial interpretations, the phrase “under color of official right”, standing alone, is vague almost to the point of unconstitutionality. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99 , 102 S.Ct. 1186, 1193-94 , 71 L.Ed.2d 362 (1982). Uncertainty would be exacerbated if this Court were to adopt the test of reasonableness espoused by the panel majority and the en banc dissenters, who would impose liability only if an official received property that “could reasonably be perceived as likely to affect his exercise of his public duties.” The criminality of conduct seldom is established by applying a test of reasonableness. See, e.g., United States v. Bright, 517 F.2d 584, 587 (2d Cir.1975); United States v. Jacobs, 475 F.2d 270, 287 (2d Cir.), cert. denied, 414 U.S. 821 , 94 S.Ct. 116 38 L.Ed.2d 53 (1973); People v. Mackell, 47 A.D.2d 209, 218-19 , 366 N.Y.S.2d 173 (1975), aff'd, 40 N.Y.2d 59 , 386 N.Y.S.2d 37 , 351 N.E.2d 684 (1976). Even when terms such as “recklessness” and “negligence” are used in a criminal statute, they usually are “intended to connote deviations from reasonableness signif *696 icantly greater in degree than the ordinary kinds of misfeasance which may suffice for civil purposes.” 1 C. Torcía, Wharton’s Criminal Law § 27, at 141 (14th ed. 1978).

However, while I agree with the en banc majority that the panel decision should be reversed, I believe the majority require more proof by the Government than the Act requires. It would be better, I believe, simply to continue the judicial gloss which this Court and most others have applied to this portion of the statute; namely, that it incorporates the common law definition of extortion. See United States v. Trotta, 525 F.2d 1096, 1100 (2d Cir.1975), cert. denied, 425 U.S. 971 , 96 S.Ct. 2167 , 48 L.Ed.2d 794 (1976); United States v. Jannotti, 673 F.2d 578, 594-95 (3d Cir.), cert. denied, 457 U.S. 1106 , 102 S.Ct. 2906 , 73 L.Ed.2d 1315 (1982); United States v. Dozier, 672 F.2d 531, 539 (5th Cir.), cert. denied, 459 U.S. 943 , 103 S.Ct. 256 , 74 L.Ed.2d 200 (1982); United States v. Hedman, 630 F.2d 1184, 1195 (7th Cir.1980), cert. denied, 450 U.S. 965 , 101 S.Ct. 1481 , 67 L.Ed.2d 614 (1981).

Common law extortion is the unlawful taking by any officer under color of his office of “any money or thing of value that is not due him, or more than is due, or before it is due.” United States v. Trotta, supra, 525 F.2d at 1100 n. 8. To constitute extortion under the common law, the taking must have been done with corrupt intent. People v. Clark, 242 N.Y. 313, 325 , 151 N.E. 631 (1926); 3 R. Anderson, Wharton’s Criminal Law & Procedure § 1394 (1957); 1 W. Burdick, The Law of Crime § 277 (1946).

When Congress borrows terms of art from the common law, “it presumably knows and adopts the cluster of ideas” that are attached to them. Morissette v. United States, 342 U.S. 246, 263 , 72 S.Ct. 240, 249 , 96 L.Ed. 288 (1952). Accordingly, in the prosecution of a public official under the Hobbs Act, the Government is required to prove corrupt or criminal intent on the part of the accused, i.e., an intent to do knowingly and willfully that which is condemned as wrong by law. See United States v. Price, 617 F.2d 455, 460 (7th Cir.1979); United States v. Adcock, 558 F.2d 397, 402 (8th Cir.), cert. denied, 434 U.S. 921 , 98 S.Ct. 395 , 54 L.Ed.2d 277 (1977). If the Hobbs Act, as thus interpreted, is charged Correctly, no public official will be convicted for accepting without a quid pro quo a cigar, a cigarette, a hot dog, or even a trip to Disneyland.

Moreover, if the gift is sufficiently modest that it does not deplete the resources of the giver and elicits no action of any sort in response, it is unlikely to cause even the modest interference with interstate commerce that is an essential element of a Hobbs Act crime.

The majority quite properly is concerned about Hobbs Act charges being based upon small, unsolicited gratuities. I share their concern. However, the majority’s interpretation of the Act which requires “some action by the public official to induce the benefits given” and mandates that “extortion under color of official right [begin] with the public official,” applies to large benefits as well as small ones. Apparently, Second Circuit juries henceforth must be instructed that, if the idea for the gift— no matter how large the gift may be — originated in the mind of the giver rather than that of the public official, the jury must acquit. I doubt this is what Congress intended.

I suggest that, if our trial judges bear in mind that violation of the Hobbs Act is a malum in se offense, an essential element of which is the existence of mens rea, there will be no need for this Court to stand alone and apart from the other Circuits in its interpretation of the Act.