holding similar Pinkerton instruction inadequate to support conviction on four of five counts of attempted extortion where various aspects of the liability were unusual and complex, the instruction was not linked to the crime of attempted extortion or its elements and the indictment was complex; acknowledging that when application of coconspirator liability is straightforward, a simple Pinkerton instruction may suffice
How later courts described this case
- holding similar Pinkerton instruction inadequate to support conviction on four of five counts of attempted extortion where various aspects of the liability were unusual and complex, the instruction was not linked to the crime of attempted extortion or its elements and the indictment was complex; acknowledging that when application of coconspirator liability is straightforward, a simple Pinkerton instruction may suffice
- finding “no reason” to disturb the district court’s ruling that defendant’s 1985 tax return was not probative of his state of mind at the time he filed his 1984 return, given his indictment in the intervening year
- holding that where an individual did not present testimony damaging to the defendant, his character was not at issue, and therefore questioning him for impeachment was precluded as irrelevant
- stating that there is nothing to impeach if a declaration is not being placed in evidence for its truth
Written by the judges who cited it.
The opinion
EASTERBROOK, Circuit Judge,
concurring.
The prosecutor charged McClain with violating the Hobbs Act by extorting money “under color of official right”. The jury acquitted him. Whether a private person can violate the Hobbs Act in the way this indictment alleged is irrelevant to the jury’s verdict on other counts, to the sentence, and to the disposition of this appeal. I therefore do not join Part II.B of the opinion, although I join the remainder of the opinion and the judgment.
My colleagues do not pretend that their discussion of the Hobbs Act plays any role in explaining the outcome of this appeal. They seek to clarify the law rather than support a judgment. I favor clear and simple rules, but under Article III of the Constitution our authority to announce rules depends on the presence of a concrete controversy. There is none between these parties about the proper reading of the Hobbs Act. Other defendants are at loggerheads with the United States on this question; district judges disagree about the subject; but so far as McClain is concerned, this opinion is advisory. His interests are no more at stake than they would have been had the prosecutor dismissed this charge before trial.
We cannot settle the scope of the Hobbs Act; only Congress or the Supreme Court can do so. Today’s discussion will not precipitate a decision by either body. The majority’s analysis, being unrelated to the judgment, is also unreviewable. Dicta sometimes point the way to an inevitable outcome or adduce new arguments for the consideration of other courts. We do neither. Arguments are balanced; two of my colleagues choose sides.
Cert-proof essays leave the “losing” party, unable to obtain review from a higher tribunal, behind the eight ball. Until we produce a decision in a form subject to review by our superiors, we are just stirring the pot. The Department of Justice will continue to frame indictments in these terms; judges will continue to ponder the arguments rehearsed in the majority's opinion; panels of this court will consider it their duty to examine the subject anew when finally seized of a concrete controversy. Perhaps the prosecutor will reformulate the charge under 18 U.S.C. § 2 , as in United States v. Margiotta, 688 F.2d 108, 130-33 (2d Cir.1982), and we will have to review the question from that perspective. *837 One way or the other, the final decision lies ahead.