Opposition Brief — May v. United States

No. 92-1235

Mn the Supreme Court of the Cuted States

( ji rORER Pep, } yy

BRIEF FOR THE UNTEPED STATES IN OPPOSTPION

QUESTIONS PRESENTED

1. Whether the district court properly instructed the

jury on the quid pro quo element of extortion under

color of official right.

2. Whether the district court’s supplemental anti-

deadlock instruction was impermissibly coercive.

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Allen v. United States, 164 U.S. 492 (1896) .................. 9

Evans v. United States, 112 S. Ct. 1881 (1992)............. 7.8

Lowenfield v. Phelps, 484 U.S. 231 (1988) .................. 9 11

McCormick v. United States, 111 S. Ct. 1807 (1991) ..... 7

Peterson v. United States, 213 F. 920 (9th Cir. 1914) ... 10

United States v. Angiulo, 485 F.2d 387 (ist Cir. 1973) ... 10

United States v. Caceres, 440 U.S. 741 (1979) ....0..000.... 9

United States v. Fioravanti, 412 F.2d 407 (8d Cir.),

cert. denied, 396 U.S. 8387 (1969) ...... eee 9-10

United States v. Flannery, 451 F.2d 880 (1st Cir.

EE ehh ian anaes bh Guia vue bundaccauabichsuliseschubhbesvacsunaaWanes 9

United States v. Harris, 391 F.2d 3848 (6th Cir.), cert.

OE, SURE 0 SUDIIUD yo, cpnsascnncnndaksnnencsuneencosesns 10

United States v. Nichols, 820 F.2d 508 (1st Cir. 1987) .. 11

United States v. Rey, 811 F.2d 1458 (11th Cir.), cert.

I S.C UED cca ciisennsacncnancvscndvssndaceessoncnse 10

United States v. Sawyers, 423 F.2d 13835 (4th Cir.

IEE a aR eR AO Rr 9

United States v. Seruggs, 583 F.2d 2388 (Sth Cir. 1978). 11

United States v. Silvern, 484 F.2d 879 (7th Cir. 1978) .. 10

United States v. Thomas, 449 F.2d 1177 (D.C. Cir.

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Statute:

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IV

Miscellaneous: Page

Committee on Pattern Jury Instructions, U.S. Fifth

Circuit Judges Ass'n, Pattern Jury Instructions

Criminal Cases (1983)

U.S. Attorneys’ Manual:

1984 .. W

Jn the Supreme Court of the United States

OCTOBER TERM, 1992

No. 92-1235

DONALD O. MAY. PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The judgment order of the court of appeals (Pet. App.

A1) is unpublished, but the judgment is noted at 979 F.2d

1538 (Table).

JURISDICTION

The judgment of the court of appeals was entered on

November 16, 1992. The petition for a writ of certiorari

was filed on January 19, 1993. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

After a jury trial in the United States District Court

for the Northern District of Georgia, petitioner was

convicted of extortion, in violation of the Hobbs Act, 18

U.S.C. 1951. He was sentenced to ten: months’ imprison-

ment, to be followed by three years of supervised release,

and he was fined $20,000. The court of appeals affirmed

without opinion, Pet. App. Al.

1. In January 1989, petitioner was appointed to the

Spalding County Planning Commission, which considers

zoning and land use matters for Spalding County, Geor-

gia. A few months later, petitioner met with Gerald

Lawhorn, who sought to develop a shooting club—a place

where hunters could shoot at clay targets thrown from

machines, along with a clubhouse, restaurant, and

lodges—on property Lawhorn owned in Spalding County.

They agreed that Lawhorn would pay petitioner $5,400 to

draft a new zoning classification that would allow

Spalding to develop the shooting club on his property.

Without revealing to the Planning Commission either

his relationship with Lawhorn or that he had personally

drafted the proposed new zoning classification, petitioner

voted both on the amendment adding the new classifica-

tion and on Lawhorn’s application to rezone his property.

Gov't C.A. Br. 3-5.

Petitioner drafted into the new zoning classification a

requirement for pre-development approval by the Plan-

ning Commission. In June 1990, after petitioner had

become chairman of the Planning Commission, Lawhorn

was informed that the County building inspector had

refused, at petitioner’s direction, to issue Lawhorn a

building permit. After meeting with petitioner concern-

ing this matter, Lawhorn’s attorney reported to

Lawhorn that he believed petitioner wanted to be paid to

a a

approve Lawhorn’s pre-development plans. Gov’t C.A.

Br. 6-8.

At a meeting in June 1990, petitioner told Lawhorn

that the pre-development plans did not conform to the

applicable code. Petitioner added that he would be

chairman of the Planning Commission for another two

and one-half years, and he said that Lawhorn would have

to compensate him for the work he would need to do to

make the plans acceptable. Lawhorn understood peti-

tioner to be demanding a payoff in order to get the plans

approved by the Planning Commission. Lawhorn in-

formed the local district attorney and the FBI of

petitioner’s proposal. Gov’t C.A. Br. 8.

At a secretly recorded meeting on July 19, 1990,

Lawhorn agreed to pay petitioner $6,500 to get his pre-

development plans approved by the Planning Commission

within six weeks. Five days later, after Lawhorn paid

petitioner $3,500 as a down payment, petitioner guaran-

teed Lawhorn that he would vote to approve the plans and

that other members of the Planning Commission would

vote with him. Following the meeting, government

agents stopped petitioner and seized the payment. Gov't

C.A. Br. 9-10.

2. Petitioner was charged with extorting money from

Lawhorn both through the wrongful use of economic fear

and under color of official right. With respect to the

“under color of official right” theory of extortion, the

district court instructed the jury in pertinent part as

follows. Pet. App. B7-B9:'

' The court gave the same instructions in the form of a

supplemental charge on two occasions, in response to inquiries

from the jury. See Pet. App. B17-B18, B29-B30.

Extortion under color of official right is the wrongful

taking by a public official of money not due to him or

his office. Extortion under color of official right does

not require proof of specific acts by the public official

demonstrating force, threat, or the use of fear, so

long as the victim consented to giving over the

money or property because of the office or position

held by the official.

Furthermore, passive acceptance of property by a

public official is sufficient to form the basis of

extortion under color of official right if the official

knows that he is being offered the payment in

exchange for a specific requested exercise of his

official power. That is, the official need not take any

specific action to induce the offering of the benefit.

* * * * X

Now, in order to establish a violation of the Hobbs

Act due to extortion or attempted extortion under

color of official right, it is not necessary that the

government prove the defendant as a public official af-

firmatively demanded or solicited a payment in

exchange for some specific exercise of the power of

his position as a member of the * * * Planning Com-

mission * * *,

All that must be established is that the defendant

accepted or agreed to accept a payment to which he

was not entitled, and that this payment was moti-

vated by the victim’s expectation of the defendant’s

exercise of his power as a public official, and that the

defendant was aware that the payment or the in-

tended payment was to be made in exchange for the

performance of his official duties.

3. During the third day of deliberations the jury

announced that it was deadlocked. Pet. App. B38. In

response to that announcement, the district court gave a

modified Allen charge as follows, id. at B39-B40:

Ladies and gentlemen of the jury, I’m going to ask

that you continue your deliberations in an effort to

reach an agreement upon a verdict and dispose of this

‘ase, and I have a few additional comments that |

would like for you to consider as you do so.

This is, as I am sure you realize, an important case.

The trial has been expensive [in] time, effort, money,

and emotional strain to both the defense and the

prosecution. If you should fail to agree upon a verdict

the case will be left open and may have to be tried

again. Obviously another trial would only serve to

increase the cost to Doth sides, and there is no reason

to believe that the case can be tried again by either

side any better or 1..9re exhaustively than it has been

tried before you.

Any future jury must be selected in the same man-

ner and from the same source as you were chosen,

and there is no reason to believe that the case could

ever be submitted to twelve men and women more

conscientious, more impartial, or more competent to

decide it, or that more or clearer evidence could be

produced.

If a substantial majority of your number are in

favor of conviction, those of you who disagree should

reconsider whether your doubt is a reasonable one

since it appears to make no effective impression upon

the minds of the others. On the other hand, if a

majority or even a lesser number of you are in favor

of an acquittal, the rest of you should ask yourselves

6

again and [mljost thoughtfully whether you should

accept the weight and the sufficiency of the evidence

which fails to convince your fellow jurors beyond a

reasonable doubt.

Remember that at all times that no juror is

expected to give up an honest belief he or she may

have as to the weight or effect of the evidence, but

after a full deliberation and consideration of the

evidence in this case it is your duty to agree upon a

verdict if you can do so.

You must also remember that if the evidence in the

case fails to establish guilt beyond a reasonable

doubt, the defendant should have your unanimous

verdict of not guilty. You may be as leisurely in your

deliberations as the occasion may require, and you

should take all the time which you may feel is

necessary.

At the end of the day on which the Allen charge was

given, the jury reached a verdict, convicting petitioner

on one extortion count and acquitting him on another.

Pet. App. B41.

4. On appeal, petitioner contended that the district

court erroneously instructed the jury on the quid pro

quo element of extortion under color of official right.

Petitioner also contended that the district court’s modi-

fied Allen charge was impermissibly coercive. The

court of appeals rejected those claims without opinion.

Pet. App. Al.

ARGUMENT

1. Petitioner contends (Pet. 22-28) that the district

court inadequately instructed the jury on the quid pro

quo element of a Hobbs Act offense.

In McCormick v. United States, 111 S. Ct. 1807, 1816

(1991), which involved the receipt of campaign contrib-

utions, this Court held that “|t]he receipt of such

contributions is * * * vulnerable under the [Hobbs] Act

as having been taken under color of official right, but

only if the payments are made in return for an explicit

promise or undertaking by the official to perform or not

to perform an official act.” In Evans v. United States,

112 S. Ct. 1881, 1889 (1992), which involved the receipt of

a $7,000 payment that was not dressed up as a campaign

contribution, the Court held that “the Government need

only show that a public official has obtained a payment to

which he was not entitled, knowing that the payment was

made in return for official acts.”

In this case, petitioner cannot claim that the payment

from Lawhorn was a campaign contribution, since pe-

titioner was not an elected official. Accordingly, the

applicable standard is that set forth in Frans, which the

district court’s instructions closely followed. The dis-

trict court instructed the jury that, in order to be guilty

of extortion under color of official right, it is sufficient

that the public official accept money knowing that the

“ The difference is in the specificity of the agreement. It would

not be a violation of the Hobbs Act to make a campaign contribu-

tion to a legislator because the legislator was generally in favor of

protectionist trade policy and the contributor’s business would

profit from protectionist legislation. But, under McCormick, it

would be a violation of the Hobbs Act for a candidate to accept a

campaign contribution that was expressly conditioned on the can-

didate’s agreement to vote in a particular manner on a specific

matter. It would also be a violation of the Hobbs Act, under

Evans, for a legislator to accept a cash payoff (not a campaign

contribution) from a person the legislator knows to have an

interest in protectionist legislation, where the legislator knows that

the payment was made in return for the legislator’s official acts of

support for protectionist trade policies, even if no specific act was

promised in exchange for the payment.

8

payment was offered “in exchange for a specific re-

quested exercise of his official power.” Pet. App. B8.

The court subsequently reiterated that the government

must show that the payment was “made in exchange for

the performance of his official duties.” /d. at B9. Those

instructions were plainly consistent with this Court’s

holding that “the Government need only show that a pub-

lic official has obtained a payment to which he was not

entitled, knowing that the payment was made in return

for official acts.” 112 S. Ct. at 1889.

Petitioner does not contend that the above-quoted

instructions were defective. Rather, he argues (Pet. 23)

that they were fatally contradicted by the district

court’s instruction that “it is not necessary that the

Government prove the defendant as a public official

affirmatively demanded or solicited a payment in

exchange for some specific exercise of the power of his

position.” Pet. App. B9. But particularly when read in

conjunction with the instructions that preceded and

followed it, the instruction on which petitioner focuses

did not in any way contradict the court’s instruction that

the government was required to prove that Lawhorn’s

payment was made in exchange for petitioner’s perfor-

mance of an official act. Rather, the import of the chal-

lenged instruction was that, in order to violate the Hobbs

Act, a public official need not induce (“affirmatively de-

mand|] or solicit{|],” in the words of the instruction) the

payment. This Court held in Kvans that the Hobbs Act

does not require proof of inducement. 112 S. Ct. at 1883."

% In 1984, in light of the then-existing uncertainty as to the

scope of extortion under color of official right, the U.S. Attorneys’

Manual advised prosecutors to use their discretion to limit

prosecutions to cases involving high offices and large payoffs.

U.S.Attorneys’ Manual § 9-131.180 (1984). See Evans, 112 S. Ct. at

1904 (Thomas, J., dissenting). Petitioner argues (Pet. 24-27) that

his prosecution violated that guideline. As an initial matter,

9

2. Petitioner contends (Pet. 28-83) that the district

court erred by giving a modified Alien charge after the

jury had informed the court that it had reached an im-

passe. The court of appeals properly rejectea that claim.

In Allen v. United States, 164 U.S. 492, 501-502 (1896),

this Court held that it was proper for a district court to

give a supplemental instruction to a deadlocked jury en-

couraging the jurors to be open-minded and to reconsider

their views if possible during their deliberations so that

a verdict might be reached. More recently, in Lowen-

field v. Phelps, 484 U.S. 231, 2837 (1988), the Court

reaffirmed the principles underlying the A//en decision.

Those principles, the Court added, “apply even with

greater force in a case such as this, where the charge

given, in contrast to the so-called ‘traditional A/len

charge,’ does not speak specifically to the minority ju-

rors.” 484 U.S. at 237-238.

The principal criticism of instructions patterned on

the charge in Allen has been that such instructions

direct only jurors in the minority to reexamine their

views. See, e.g., United States v. Flannery, 451 F.2d 880,

883 (Ist Cir. 1971); United States v. Thomas, 449 F.2d

1177, 1188 (D.C. Cir. 1971); United States v. Sawyers, 423

F.2d 1335, 1342 (4th Cir. 1970); United States v.

Fioravanti, 412 F.2d 407, 417 (3d Cir.), cert. denied, 396

however, petitioner failed to raise the issue below and thereby

waived it. Second, internal Justice Department guidelines confer

no rights on defendants; the Justice Department is the sole judge

of whether a particular prosecution meets its own standards. See

United States v. Caceres, 440 U.S. 741 (1979). Third, the amount

of money involved in this case was substantial, and the office,

although not a public position of high visibility, was an important

position within the local county government. Finally, the

guideline on which petitioner relies was repealed prior to

petitioner’s prosecution. See U.S. Attorneys’ Manual § 9-131

(1988).

aati

10

U.S. 8387 (1969). Although the charge in this case

suggested that if a substantial majority of jurors favored

acquittal or conviction, the others should reconsider

their views, it also stated that even if only a minority of

jurors favored acquittal, the others should reconsider

whether they should accept “the weight and the

sufficiency of the evidence which fails to convince your

fellow jurors beyond a reasonable doubt.” Pet. App. B39.

Accordingly, the charge did not contain the much-

criticized language suggesting that only the minority

jurors should reexamine their views.

The charge in this case also did not suffer from the

other principal defect attributed to some variations of

the Allen charge—that they place undue emphasis on

the prospect of a retrial and the costs that a retrial

would impose on both parties. See, e.g., United States v.

Rey, 811 F.2d 1453, 1459 (11th Cir.), cert. denied, 484 U.S.

830 (1987); United States v. Silvern, 484 F.2d 879, 880-881

(7th Cir. 1973) (en bane); United States v. Thomas, 449

F.2d at 1183. In this case, the instruction stated only

that if the jury did not reach a verdict, the case would be

left open and might have to be tried again. The

instruction thus informed the jury that a retrial was

possible, not that it was inevitable. See United States v.

Harris, 391 F.2d 848, 355-357 (6th Cir.), cert. denied, 393

U.S. 874 (1968). In addition, although the instruction

referred to the expense of the trial and the expense of

retrial, it did not dwell on those points. Compare United

States v. Angiulo, 485 F.2d 37, 39 (st Cir. 1973); Peter-

son v. United States, 213 F. 920, 924-926 (9th Cir. 1914).

Furthermore, the instruction at issue carefully bal-

anced references to the consequences of a deadlocked

jury with the admonition that the jurors should not feel

compelled to surrender their honest convictions merely

to reach a verdict, and it reminded the jury to return a

verdict of not guilty if the evidence failed to establish the

1]

defendant’s guilt beyond a reasonable doubt. In sum, the

instruction, viewed as a whole, was not impermissibly

coercive. See United States v. Nichols, 820 F.2d 508, 511-

512 (1st Cir. 1987).'

While there are differences in the anti-deadlock

instructions approved by various courts of appeals, all

the courts of appeals have upheld some form of sup-

plemental jury charge advising jurors of their duty to

deliberate and to attempt to reach a verdict. See

Lowenfield v. Phelps, 484 U.S. at 238 n.1. There is no

compelling need for a uniform anti-deadlock instruction

for all circuits. Variety in the way courts remind juries

of their duty to deliberate—like the variety in other jury

instructions, such as the instruction on reasonable

doubt—has been accepted practice in the federal system

for years. See Committee on Pattern Jury Instructions,

U.S. Fifth Circuit District Judges Ass’n, Pattern Jury

Instructions—Criminal Cases 28 (1983). Unless and

until this Court chooses to promulgate pattern jury in-

structions for the district courts throughout the nation,

some variation among instructions, such as the anti-

deadlock instruction, will be inevitable.

‘ Petitioner faults the supplemental charge (Pet. 33) for failing

to inform the jury of its right not to reach a verdict. However,

the charge stated that it was the jury’s duty to agree on a verdict

only “if you can do so.” Pet. App. B40. Petitioner also argues

(Pet. 33) that the charge was coercive because it was given on a

Friday. The timing of an anti-deadlock instruction, however, is

within the discretion of the district court, see United States v.

Scruggs, 5883 F.2d 238, 241 (5th Cir. 1978), and we know of no au-

thority for the proposition that such an instruction may not be

given the day before the weekend.

12

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WILLIAM C. BRYSON

Acting Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney General

JOEL M. GERSHOWITZ

Attorney

APRIL 1993