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United States v. O'Grady

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT


August 10, 1983

UNITED STATES OF AMERICA, APPELLEE,
v.
EDWARD O'GRADY, APPELLANT.

Appeal from a judgment of conviction entered in the Eastern District of New York (Platt, J.) after a jury trial on charges of extortion under color of official right in violation of the Hobbs Act, 18 U.S.C. § 1951(b)(2), through a New York City Transit Authority official's acceptance of over $30,000 worth of vacation trips, meals, season tickets and other benefits from contractors doing business with the Authority. Affirmed. Judge Meskill dissents.

Author: Mansfield

Before:

LUMBARD, MANSFIELD and MESKILL, Circuit Judges.

MANSFIELD, Circuit Judge:

We are called upon once more to define the limits of the Hobbs Act's prohibition against extortion affecting interstate commerce and carried out "under color of official right," 18 U.S.C. § 1951(b)(2) (1976). Edward O'Grady, a former employee of the New York City Transit Authority ("NYCTA"), appeals from a judgment of conviction entered in the Eastern District of New York, Thomas C. Platt, Jr., Judge, after a jury trial, on charges that O'Grady violated the Hobbs Act by accepting over $34,000 worth of vacation trips, meals season tickets, and other benefits from contractors doing business with the Transit Authority. We affirm.

During the period 1972-81, the NYCTA entered into and carried out the then-largest subway contract in history, the "R-46" contract. The Pullman-Standard Co. was the prime contractor on the project, and employed numerous subcontractors. All of these companies (the "vendors") had to submit their porposed subway car components to the NYCTA for approval. The NYCTA could reject a proposed component because it did not function adequately or because the NYCTA deemed its cosmetic appearance unacceptable. A NYCTA rejection could entail enorlus expenditures by the vendor to correct the problem.

At or near the center of this approval process was Edward O'Grady, who worked for the NYCTA as Superintendent of the Quality Control Section, Department of New Car Engineering. Between 1972 and 1981, O'Grady accepted more than $34,000 worth of in-kind benefits from vendors engaged in business with the NYCTA on the R-46 project.*fn1 The most common form of benefit that O'Grady accepted from the vendors was a golfing trip, often accompanied by meals and lodging. The largesse bestowed upon O'Grady without charge to him included over 40 fully paid trips to various resorts,*fn2 two all-events season tickets to Madison Square Garden, scores of rounds of golf, and numerous expensive meals for himself and sometimes for his wife as well.

O'Grady was indicted by a federal grand jury in December 1981 on a single count of violating 18 U.S.C. § 1951(b)(3)*fn3 by obtaining approximately $30,000 in entertainment from various vendors on the R-46 project. He was tried by a jury before Judge Platt in June 1982, found guilty, and in September 1982 sentenced to a year's probation and a fine of $10,000.

At trial a number of vendors testified to their practice of entertaining Mr. O'Grady during the period in question. Most of the witnesses denied that O'Grady had ever explicitly asked that the vendors provide the benefits, or that O'Grady had provided any explicit quid pro quo therefor to the vendors. However, there was overwhelming evidence that O'Grady made it his routine practice to accept gratuities of all sorts from vendors; indeed, one vendor testified that O'Grady had a reputation for "taking almost anything that was given to him." T. 208. Although some R-46 vendors may at their own expense have held outings for transit employees generally, including those from other cities as well as those from the NYCTA, the record reveals that on many occasions vendors entertained O'Grady only, providing him alone with substantial benefits, and that O'Grady received far more from the vendors than did any of his colleagues or superiors at the NYCTA. O'Grady was aware of the impropriety of his actions, instructing at least one of his subordinates "not to go to lunch or dinners or receive gifts from the [vendors]." T. 983.

There was some evidence that O'Grady solicited the benefits and/or delivered a quid pro quo therefor. One vendor testified that O'Grady had complained to him that the vendor was not "generous," and had stated that he (the vendor) was in fact "tight as a . . . excuse the language." T. 345-47. The same vendor testified that quest by the vendor with regard to certain components, but that after the company took O'Grady on a primarily-social trip to Disney World in Orlando, Florida, O'Grady agreed with the company's position. T. 326-28, 341-42. Another vendor testified that although his relationship with O'Grady was initially "difficult," his "communications" with O'Grady improved somewhat after he took O'Grady and his wife out for dinner and a show. T. 587, 592.

Discussion

The Hobbs Act in pertinent part defines extortion as "the obtaining of property from another, with his consent, . . . under color of official right." Relying exclusively on this provision, the government argues that O'Grady made "Wrongful use of his office to obtain money not due him or his office." United States v. Margiotta, 688 F.2d 108, 130 (2d Cir. 1982), cert. denied, 103 S. Ct. 1891 (1983).

O'Grady first argues that his conviction must be overturned because his actions, although perhaps illegal under local law,*fn4 did not amount to a violation of the Hobbs Act as that Act is construed by the dissent in United States v. Cerilli, 603 F.2d 415, 426 (3d Cir. 1979) (Aldisert, J., dissenting), cert. denied, 444 U.S. 1043 (1980). According to the Cerilli dissent, which O'Grady urges this court to adopt, the Hobbs Act incorporates by reference the definition of "extortion" under the New York Penal Code. The Cerilli dissent argues that under that definition extortion "under color of official right" can occur in only three narrow circumstances: (1) when an official commits "oppression" by unlawfully seizing an individual or his property; (2) when an official makes a specific misrepresentation that the benefits he is accepting constitute an authorized "fee," when in fact no such fee or only a lesser fee has been authorized; and (3) when the official wrongfully uses force or fear. Id. at 433. O'Grady relies on the fact that his conduct does not fit within any of these categories of wrongdoing.

Like other circuits that have considered this question, we decline the invitation to find that the Hobbs Act incorporates every detail of the New York law of extortion. United States v. Cerilli, supra, 603 F.2d 415, 425-26 (3d Cir. 1979), cert. denied, 444 U.S. 1043 (1980); United States v. Harding, 563 F.2d 299, 304 (6th Cir. 1977), cert. dneied, 434 U.S. 1062 (1978); see also United States v. French, 628 F.2d 1069, 1073 (8th Cir.), cert. denied, 449 U.S. 956 (1980) (New York law of extortion is helpful but not controlling authority). The legislative history of the Hobbs Act is virtually silent with respect to the "color of official right" provision. See United States v. French, supra, 628 F.2d at 1073; United States v. Cerilli, supra, 603 F.2d at 425-26. While there are indications from the congressional debates over other portions of the Hobbs Act that the New York law of extortion was considered with respect to the legality of certain labor union activities, see United States v. Enmons, 410 U.S. 396, 406 n.16 (1973), we find no congressional mandate to incorporate the New York law of extortion into the Hobbs Act. As the Harding court noted, many states besides New York had statutes barring extortion "under color of official right" at the time Congress passed the Hobbs Act, see Harding, supra, 563 F.2d at 304, suggesting that Congress intended to refer not only to the law of New York state on extortion but to that of other states as well. See French, supra, 628 F.2d at 1073. In the absence of some indication that Congress intended to shackle the broad language of the Hobbs Act with the particular restrictions existing in a single state's law, we decline to read the Act so narrowly.

O'Grady makes two further arguments that this Court has already explicity rejected. First, he contends that the Hobbs Act should be read to provide that "extortion under color of official right" occurs only when payment is obtained by "force, fear, or duress." We recently rejected this argument in United States v. Margiotta, 688 F.2d 108, 131 (2d Cir. 1982), cert. denied, 103 S. Ct. 1891 (1983), and we see no need to reconsider it here. See also United States v. Harding, supra, 563 F.2d at 305-06; United States v. Mazzei, supra, 521 F.2d at 644. Second, O'Grady argues that he cannot be convicted under the "color of official right" prong of the Hobbs Act because there was insufficient proof that he delivered any quid pro quo to the donating vendors. Leaving aside evidence from which it could be inferred that O'Grady favored certain vendors after partaking of their generosity, we note that O'Grady's contention was rejected by this Court in United States v. Trotta, 525 F.2d 1096, 1100 (2d Cir. 1975), cert. denied, 425 U.S. 971 (1976), in which we point out that "a quid pro quo may, of course, be forthcoming in an extortion case, or it may not. In either event, it is not an essential element of the crime." Trotta, 525 F.2d at 1100; see also Margiotta, supra, 688 F.2d at 133 (same).

O'Grady also argues that the vacation trips, theatre and sports tickets, meals, and the like could not have been extorted from the vendors because he was "due" those benefits in light of the widespread practice in the industry of bestowing such benefits upon key transit authority officials. Even if we were to accept the remarkable argument that widespread corruption is not corruption at all, we would find that O'Grady's acceptance of benefits from vendors far outdistanced that of other NYCTA officials, and that any argument that he was entitled to such benefits is absurd.

Finally, although O'Grady has raised no objection on this appeal to the jury charge, our colleague Judge Meskill urges in dissent that the district court erred in failing to instruct the jury that it could convict only if it found that O'Grady actively "induced" or "obtained" the giving of benefits by the vendors, and that the evidence may have been insufficient to support such a finding. We disagree. First, we note that other Courts of Appeals have generally rejected the notion that an official must actively "take the initiative" or "induce payment" in order to violate the Hobbs Act. See United States v. Jannotti, 673 F.2d 578, 595 (3d Cir.) (en banc ), cert. denied, 457 U.S. 1106 (1982); United States v. Hedman, 630 F.2d 1184, 1195 (7th Cir. 1980), cert. denied, 450 U.S. 965 (1981); United States v. Butler, 618 F.2d 411, 417-18 (6th Cir. 1980), cert. denied, 447 U.S. 927 (1980), 449 U.S. 1089 (1981).*fn5

"At common law, extortion was defined as "any officer's unlawfully taking, by color of his office, from any man, any money or thing of value that is not due to him." 4 W. Blackstone, Commentaries n.* (Footnote omitted) 141. The requirement that the money be taken "by color of his office" meant "simply that the officer must have taken money not due him for the performance of his official duties." . . .

"The holding in our cases that the Hobbs Act covers the acceptance of bribes by public officials even when payment was not obtained by force, threats, or use of fear, and the further suggestion that there need be no inducement or prior request for such payments, accords with the view taken by other courts of appeals. In United States v. Hedman, 630 F.2d 1184 (7th Cir. 1980), cert. denied, 450 U.S. 965, 101 S. Ct. 1481, 67 L. Ed. 2d 614 (1981), the government proved at trial that defendants, city building inspectors, accepted money from builders who failed to conform with the building code, but no solicitation of the bribes was shown. In rejecting defendants' argument that the government must show that the officials were the "initiators' or "inducers' of the alleged payments, the court stated:

It is settled law in this Circuit as well as others that in a Hobbs Act prosecution for extortion under color of official right it is unnecessary to show that the defendant induced the extortionate payment. . . . The Government is merely required to prove that a public official obtained money to which he was not entitled and which he obtained only because of his official position.

"Id. at 1195 (footnote omitted). The Sixth Circuit has also held that the "technical overdrawn distinction" which the public officials sought to make there between bribery and extortion under the Hobbs Act is not in keeping with the legislative intent, and that "in cases of misuse of official power, bribery and extortion are not mutually exclusive." United States v. Butler, 618 F.2d 411, 417 (6th Cir. 1980), cert. denied, 447 U.S. 927, 100 S. Ct. 3024, 65 L. Ed. 2d 1121 (1980) and 449 U.S. 1089, 101 S. Ct. 811, 66 L. Ed. 2d 816 (1981)." United States v. Jannotti, supra, 673 F.2d at 595.

We are persuaded that a public official need not expressly broach the idea of payment in order to extort benefits within the meaning of the "color of official right" provision; his willing acceptance of benefits that are "induced" by the sheer power of his public office is sufficient to violate the Act. See, e.g., United States v. Jannotti, supra, 673 F.2d at 595. Although the giving of benefits to a public official may amount to bribery, the public official who wrongfully accepts the benefits is not held responsible under the Hobbs Act for the conduct of the "donors" but for his own conduct in accepting substantial benefits from them which he must realize are offered to him only because of his office.

Even if we were to accept the view that some affirmative action amounting to solicitation by the public officer must be shown to prove extortion "under color of official right," proof of a formal express demand is not necessary; it is sufficient to show that the official by his conduct indicated or implied that to obtain favorable treatment from him, or even to get his attention, one must pay for the privilege. See, e.g., United States v. Price, 617 F.2d 455, 458 (7th Cir. 1979); United States v. Hathaway, 534 F.2d 386 (1st Cir.), cert. denied, 429 U.S. 819 (1976). A corrupt official, well aware of the inherent power he possesses by virtue of his office, does not need to shout his demands; a few subtle indications are sufficient to fetch a response. To require affirmative or express words of inducement would be to sacrifice substance for form.

In the present case there was ample evidence of inducement and misuse by O'Grady of power inherent in his office. His criticism of one vendor as "tight" and "not generous" could reasonably be interpreted by the vendor and the jury as a soliciation for larger benefits. Moreover, he clearly created the impression, not by words but by deeds, that vendors whose business fortunes with the NYCTA depended on him were expected to make generous "gifts" to him. By establishing a pattern of accepting proffered benefits from the first few vendors he conveyed the message to all that this was his method of operation and that if they wanted favorable treatment they should do likewise. In short, he used his office in a way that would cause successive vendors to confer benefits upon him. It could reasonably be inferred that if he had refused the first of the long string of valuable benefits conferred on him, that would have ended the matter; no further benefits would have been offered to him. But he chose the "benefit" route,, from which the vendors could reasonably conclude that unless they acceded they might not get favorable treatment from him. This constituted "utilization of the power of [his] public office" to obtain the benefits, United States v. Margiotta, supra, 688 F.2d at 132. Given the enormous financial stakes for the vendors, it would take little encouragement to ensure such an investment in O'Grady's good will. Thus we reject his contention that there was insufficient evidence of inducement.

O'Grady has based his appeal solely on the alleged insufficiency of the evidence against him. However, our dissenting colleague raises an additional concern about the charge to the jury, which we share. The district court properly instructed the jury that to find O'Grady guilty of extortion under color of official right it must find that (1) he obtained the property of others with their consent, a fact that O'Grady conceded, (2) the consent was induced under color of official right, (3) his actions were knowing and willful, and (4) the acts affected interstate commerce, an element that he did not contest. T. 1780-81. With respect to the second of these elements, however, the court instructed that inducement under color of official were motivated by O'Grady's public office, i.e., by the reasonable belief that O'Grady had the "power to take or withhold action that court hurt or benefit the company, or to affect or influence the inspection and delivery of the R-46 subway car," T. 1785, and that (b) O'Grady knew that this was the reason why the benefits were conferred.

Since Congress' purpose in enacting the Hobbs Act was to prohibit corrupt use by a public official of his office, the government, in order to convict an official of extortion under color of official right, must prove that (1) the benefits conferred on the official could reasonably be perceived as likely to affect his exercise of his public duties, and (2) that the official was aware that the benefits would be so perceived. Thus, contrary to the argument of defense counsel below, a public official who "takes a cigarette or a cigar from anybody else" that is offered solely because of his official status has not committed a violation of the Hobbs Act, since no reasonable person would expect the official to be likely to be influenced in the performance of his duties by the proffer of such a minuscule "benefit."

Of course, in any case where the issue is whether the official would be influenced by the receipt of benefits accepted, the court should, if requested to do so, instruct the jury that the benefits provided had to be such that a reasonable person would expect the defendant to be likely to be influenced in the performance of his duties by the receipt of the benefits. In this case it was not error for the court to fail to give such a charge as it was not requested. Moreover, on the record before us a reasonable person would surely conclude that an official who accepted lavish vacation trips, costly season tickets, and the like, totalling over $34,000, from vendors with business pending before him would at the very least be likely to be influenced in the performance of his official duties by the receipt of such benefits.*fn6 Similarly, in light of the magnitude of the benefits conferred upon O'Grady and of his explicit warning to one of his subordinates not to follow his own example, there can be no reasonable doubt that O'Grady was aware that the benefits given to him would be perceived as likely to affect his exercise of his public duties.

The judgment of conviction is affirmed.

MESKILL, Circuit Judge, dissenting:

I respectfully dissent.

The Hobbs Act proscribes extortion affecting interstate commerce, whether "by wrongful use of actual or threatened force, violence, or fear, or under color of official right." 18 U.S.C. § 1951(b)(2) (1976). The Act is a powerful and effective law enforcement tool, providing for up to twenty years imprisonment, a $10,000 fine, or both. It has become a principal weapon in the government's arsenal against corruption in public affairs. We are asked to decide whether extortion under color of official right occurs when a public official merely accepts unsolicited benefits knowing they were given because of his public office. The majority holds that a conviction for extortion under color of official right does not require proof that the public official induced, solicited or demanded the benefits he received, or that he offered some form of quid pro quo therefor. The majority deems it sufficient to show that the public official accepted benefits that were offered to him because of his public office, that he knew the reason for the bestowal and that the benefits given were of a type that could reasonably be perceived as likely to affect his exercise of his public duties. I dissent because there is no justification for this unwarranted expansion of the Hobbs Act into areas far beyond the contemplation of Congress.

BACKGROUND

In 1972, the New York City Transit Authority (NYCTA) executed a contract with Pullman-Standard under which it agreed to purchase 745 subway cars at a cost of nearly $210 million. Edward O'Grady, employed by NYCTA as Superintendent of the Quality Control Section, Department of New Car Engineering, had been involved in the contract negotiations and the ultimate selection of Pullman-Standard as prime contractor. Pullman-Standard engaged numerous subcontractors to help design, manufacture and assemble the new subway cars for what was commonly known as the R-46 project. Throughout the project O'Grady was responsible for ensuring vendor compliance with contract specifications.Before any component of the new subway cars was put into full production, it had to be inspected and approved by O'Grady's department. If a component were defective from either a technical or an aesthetic viewpoitnt or failed to comply with contract specifications, O'Grady could force the vendor to make the necessary modifications at its own cost. The inspection process continued from the design stage through final production.

On December 8, 1981 a federal grand jury returned a one count indictment charging O'Grady with violating the Hobbs Act between 1972 and 1981 "by attempting to obtain and obtaining the benefits valued at approximately Thirty Thousand Dollars ($30,000) in entertainment . . . from [vendors involved in the R-46 project], with the consent for such entertainment having been wrongfully induced under color of official right." At trial the government proved that during the nine year period covered by the indictment, O'Grady received from Pullman-Standard and its subcontractors over forty fully-paid trips to various resorts throughout the country, two all events season tickets to Madison Square Garden, countless rounds of free golf, meals and other benefits, altogether worth in excess of $34,000. O'Grady willingly accepted all of these benefits despite having instructed his subordinates not to accept anything from R-46 contract vendors.

O'Grady admitted having received the benefits, but he denied wrongdoing. He maintained that entertaining customers was an industry-wide practice and that he was only one of many NYCTA officials who had received benefits from R-46 vendors. The evidence adduced at trial supported O'Grady's contention. Several R-46 contract vendors testified that it was company policy to entertain customers and that many NYCTA officials, including O'Grady's supervisors, had also been treated to meals, entertainment and trips.*fn1 From the vendors' perspective, the expense of entertaining customers was offset by the positive customer-vendor relationship and goodwill that it purchased. Moreover, the vendors could in most cases deduct for income tax purposes the costs of the entertainment as ordinary and necessary business expenses.

Nevertheless, O'Grady consumed a far greater portion of the vendors' entertainment budgets than did other NYCTA officials. O'Grady held the reins on the production process and he would often supervise on-site inspections. Vendors treated O'Grady, who was known to be an avid golfer, to countless rounds of golf in conjunction with his on-site inspection tours. Although most vendors considered O'Grady a fair man, "[h]e was a tough man when it came to enforcing the rights of the [NYCTA]."*fn2 It was difficult to sit down and do business with O'Grady as he was a very busy man. Vendors viewed the meals, trips and other entertainment conferred on O'Grady as a means of getting his ear. There is no evidence in the record that O'Grady ever demanded or asked for a free meal, an expense-paid trip, or a complimentary round of golf. The benefits he received were freely and willingly offered by the vendors. In the words of Pullman-Standard's project manager, "[i]t was our normal way of doing business." Trial Tr. at 187.

The trial judge instructed the jury that extortion under color of official right requires proof that (1) the defendant obtained property of another with his consent; (2) the consent was induced under color of official right; (3) the defendant knowingly and willfully obtained the property by those means; and (4) the defendant's actions in obtaining the property affected interstate commerce. O'Grady disputed only two elements. He denied having induced the benefits he received and having known that the benefits were given to him because of his public office.He defended on the basis that the indictment merely described a normal business practice. The district court instructed the jury:

If you find beyond a reasonable doubt that a company gave any benefit that it is alleged to have given in the indictment because the company reasonably believed that, in his official capacity, Mr. O'Grady had the power to take or withhold action that could hurt or benefit the company, or to affect or influence the inspection and delivery of the R-46 subway car, then you may find that the consent of the bestowing company was induced under color of official right, and if you further find beyond a reasonable doubt that the defendant knew that this [was] the reason travel and entertainment benefits were given to him, then the second element is satisfied; but if either or both of these facts has not been so proven beyond a reasonable doubt, then it is not, and you must find for the defendant.

Trial Tr. at 1785-86. The district court explained that "[t]he Government need not show that the defendant in words or otherwise, induced, requested, demanded, or solicited the benefits," id. at 1784, or that O'Grady "was influenced in his decisions by any favor he received," id. at 1783. O'Grady's attorney forcefully objected to the charge delivered by the district court*fn3 and offered his opinion that under the charge given, "President Reagan and Mrs. Reagan must be convicted, absolutely must," as must an "public official, who takes a cigarette or a cigar from anybody else." Id. at 1818-19. The jury retruned a verdict of guilty and the district court thereafter sentenced O'Grady to a one year term of probation and a $10,000 fine.

Discussion

O'Grady's appeal frames a question of first impression under the Hobbs Act, whether a public official by accepting unsolicited benefits from companies doing business with his employer automatically violates the Hobbs Act. Recently, in United States v. Margiotta, 688 F.2d 108 (2d Cir. 1982), cert. denied, 51 U.S.L.W. 3789 (U.S. May 2, 1983), this Court held that "[e]xtortion under color of official right" occurs "when a public official makes wrongful use of his office to obtain money not due him or his office," whether or not "the wrongful use of official power [is] accompanied by actual or theatened force, violence, or fear." Id. at 130-31. The majority in this case extends Margiotta, holding that a public official's "willing acceptance of benefits that are "induced" by the sheer power of his public office is sufficient to violate the [Hobbs] Act," provided that the benefits are of a type that "could reasonably be perceived as likely to affect his exercise of his public duties." I do not agree. As I interpret Margiotta, the conduct proscribed under the Hobbs Act is the wrongful use of public office to obtain benefits, not merely the acceptance of benefits. Although unlawful receipt of benefits is a necessary element of the offense, Margiotta requires proof that the public official did something, under color of public office, to cause the giving of benefits. Because the district court gave the jury an incorrect instruction on this essential element of the offense, I would reverse O'Grady's conviction and remand for a new trial. United States v. DeMarco, 488 F.2d 828, 832 (2d Cir. 1973).

A. Hobbs Act Run Rampant*fn4

O'Grady argues that his conduct did not constitute extortion under color of official right. He urges this Court to abandon established precedent in this Circuit interpreting the Hobbs Act broadly, see United States v. Margiotta, 688 F.2d 108 (2d Cir. 1982), cert. denied, 51 U.S.L.W. 3789 (U.S. May 24, 1983); United States v. Trotta, 525 F.2d 1096 (2d Cir. 1975), cert. denied, 425 U.S. 971 (1976), in favor of a narrower reading that would limit the Act's scope to extortion accompanied by some form of duress. O'Grady relies on Judge Aldisert's dissent in United States v. Cerilli, 603 F.2d 415 (3d Cir. 1979), cert. denied, 444 U.S. 1043 (1980), which in turn relied on Judge Gibbons' dissent in United States v. Mazzei, 521 F.2d 639, 646-56 (3d Cir.) (en banc), cert. denied, 423 U.S. 1014 (1975). Judge Aldisert argued that the law took a wrong turn in United States v. Kenny, 462 F.2d 1205 (3d Cir.), cert. denied, 409 U.S. 914 (1972), where the court approved of the following jury instruction: "Extortion under color of official right is the wrongful taking by a public officer of money not due him or his office, whether or not the taking was accomplished by force, threats or use of fear." United States v. Cerilli, 603 F.2d at 427.

Judge Aldisert recognized that 18 U.S.C. § 1951(b)(2) could be read literally to mean that extortion under color of official right could occur absent proof of force, duress or fear. Id. at 429, see United States v. Nardello, 393 U.S. 286, 289 (1969); United States v. Williams, 621 F.2d 123, 124 (5th Cir. 1980), cert. denied, 450 U.S. 919 (1981). However, he insisted that the legislative history of the Hobbs Act disclosed a congressional intent to rely on the New York law of extortion to define the crime. The term "color of official right" was lifted by the drafters of the Anti-Racketeering Act of 1934, ch. 569, 48 Stat. 979, the predecessor to the Hobbs Act, from the New York Penal Law of 1909. Id. at 431-32. At that time New York law defined extortion under "color of official right" as a public officer's asking for or agreeing to receive a fee in excess of that allowed by statute, or extortion by wrongful use of force or fear. Extortion was distinct from bribery. Consequently, Judge Aldisert concluded that a conviction under the Hobbs Act requires proof of extortion under "color of official right" as that offense was defined by New York law. Id. at 433; see United States v. Jannotti, 673 F.2d 578, 627 (3d Cir.) (en banc) (Aldisert, J., dissenting), cert. denied, 457 U.S. 1106 (1982).

I share the concerns expressed by Judge Gibbons and Judge Aldisert and regret that those concerns have fallen on deaf ears. The majority of circuits, including our own, have followed the lead of United States v. Kenny and do not require proof of a threat, force or duress to sustain a conviction for extortion under color of official right. United States v. Margiotta, 688 F.2d at 130-31; see United States v. Williams, 621 F.2d 123, 124 (5th Cir. 1980) (citing cases), cert. denied, 450 U.S. 919 (1981); cf. United States v. Williams, 621 F.2d at 126 (Tate, J., concurring) ("it is clear to me . . . that the congressional intent to punish racketeering by extortion, with penalties of up to twenty years imprisonment, included that the extortion be by coercion, economic or otherwise") (footnote omitted). Ever since extortion under color of official right was introduced into federal criminal law in the 1940s as a tool to combat racketeering, the federal courts have blindly converted the crime from a narrow prohibition aimed at public officials who demand or receive a fee not due them or their office, or who extort money by force or violence, into a broad license for "federal authorities to police influence peddling in the political processes of the states." United States v. Mazzei, 521 F.2d at 652 (Gibbons, J., dissenting); see Ruff, Federal Prosecution of Local Corruption: A Case Study in the Making of Law Enforcement Policy, 65 Geo. L.J. 1171, 1183 (1977). Indeed, the United States Attorney for the Eastern District of New York tells us that the "Hobbs Act may be viewed as enacting a special code of integrity for public officials."*fn5 While it is too late to abandon the long line of cases interpreting extortion under color of official right to embrace conduct other than common law extortion, it is not too late to correct the government's misguided interpretation of the Hobbs Act. But, I am in the minority.

B. The Essence of Extortion Is Inducement

The district court instructed the jury that the mere acceptance of benefits by a public official is extortion under color of official right if the official knew that his public office was the motivation behind the giving of the benefits. The majority approves of this instruction. The practical effect of this decision is to impose on all public officials an affirmative obligation not to accept benefits of any type or form. A statute originally designed to eradicate extortion and robbery in interstate commerce is now converted into a professional ethics standard governing public officials. The majority's decision is untenable and fraught with the potential for abuse. Moreover, it does not square with this Court's decision in United States v. Margiotta, 688 F.2d 108 (2d Cir. 1982), cert. denied, 51 U.S.L.W. 3789 (U.S. May 2, 1983).

In United States v. Margiotta, this Court examined the government's burden of proof in a Hobbs Act prosecution for extortion under color of official right. Joseph Margiotta was Chairman of the Republican Committee of Nassau County and the Town of Hempstead, New York.Although not an elected official, Margiotta wielded complete control over certain public officials and governmental functions in those municipalities. Margiotta had negotiated a deal with the Williams Agency, an insurance broker, under which he agreed to appoint the agency as broker of record with full power to place insurance on all municipal properties in exchange for the agency's promise to designate fifty percent of its insurance commissions to be distributed to Margiotta's direction to others as political favors. Margiotta was indicted for, among other things, "violating the Hobbs Act by inducing the Williams Agency to make the payments of the insurance commissions under color of official right." 688 F.2d at 114. Margiotta defended, unsuccessfully, on the grounds that his appointment of the Williams agency as broker of record was not contingent upon a secret agreement to divvy insurance commissions and that "commission sharing among brokers was a good faith continuation of a long-standing and widely-known political patronage arrangement in New York." Id.at 119.

Margiotta's conviction was affirmed on appeal. Writing for this Court, Judge Kaufman held that "[a]ffirmative pressure in the form of force, fear, or direct solicitation" is not necessary to establish inducement because the power inherent in public office supplies the necessary pressure or threat. Id. at 132.Instead, "it is the utilization of the power of public office to induce consent to the payments that is the gist of an offense of obtaining money "under color of official right." Id. The evidence established that the Williams Agency consented to the kickback arrangement only because Margiotta would have, as he testified, replaced it as broker of record had it not consented. Consequently, there was sufficient evidence to support a finding that the "power of office [was used] in such a manner that would induce the payments." Id. at 133.

The district court's charge to the jury in this case permitted the jury to find O'Grady guilty of extortion under color of official right absent any proof that he wrongfully used his office to induce the benefits he received. Essentially, the district court equated the mere acceptance of benefits by a public official with wrongful use of public office and permitted the jury to infer inducement if it found that the R-46 vendors bestowed benefits on O'Grady because of his public office and that O'Grady knew what motivated the bestowal. The district court instructed the jury that:

The Government need not show that the defendant in words or otherwise, induced, requested, demanded, or solicited the benefits from the companies involved.

So long as the motivation for the bestowal of any of the benefits focused on Mr. O'Grady's office -- that is, so long as the office or the fact of his official position, induced the payments -- and so long as the defendant knew such was the case -- then the conduct falls within the ambit of the Statute.

Trial Tr. at 1784.

The charge given by the district court eliminated the government's burden of proving that O'Grady used his office to induce or obtain the benefits he received. Under United States v. Margiotta the fact of public office merely supplies the threat or force necessary to the crime of extortion; it is the wrongful use of that office to induce benefits that constitutes the crime. Margiotta was guilty of violating the Hobbs Act not because he was powerful, but because he used the power of public office to induce payments not due him or his office. To prove the crime of extortion under color of public office the government must show that the public official induced or obtained the benefits received.*fn6 Judge Kaufman's opinion in United States v. Margiotta is replete with references to this indispensable element of the crime: "[e]xtortion "under color of official right" is committed when a public official makes wrongful use of his office to obtain money not due him or his office," 688 F.2d at 130; "it is the utilization of the power of public office to induce consent to the payments that is the gist of [the] offense," id. at 132; "a public official may be guilty . . . if the payments are motivated as a result of his exercise of the powers of his public office," id. at 133; public officials are guilty if they "use their power of office in such a manner that would induce the payments," id.; and "[i]n this case, the appointment and retention of the [Williams] Agency as Broker of Record thus satisfies the requirement of a use of public office or action "under color of official right," id. at 132-33. While the government is not required to prove that the public official expressly demanded or directly solicited the benefits received or that he offered a specific quid pro quo in exchange for the benefits, United States v. Trotta, 525 F.2d 1096, 1100 (2d Cir. 1975), cert. denied, 425 U.S. 971 (1976), the government must show that the power of public office was misused in such a way as to induce the giving of benefits, that the public official exploited the power of his office to obtain benefits. Cf. United States v. Dozier, 672 F.2d 531, 537 (5th Cir.) ("the prohibited exchange is the same: a public official may not demand payment as inducement for the promise to perform (or not to perform) an official act"), cert. denied, 51 U.S.L.W. 3303 (U.S. Oct. 18, 1982); United States v. Trotta, 525 F.2d at 1100 ("the pressure exerted by Trotta by means of the power of his public office to induce the payment of money is, in itself, the misuse of the office"), cert. denied, 425 U.S. 971 (1976); United States v. Mazzei, 521 F.2d 639, 643 (3d Cir.) (en banc) ("so long as it found that [the extorted party] held, and defendant exploited, a reasonable belief that . . . the power in fact of defendant's office included the effective authority"), cert. denied, 423 U.S. 1014 (1975).

I recognize that several other courts of appeals have explicitly rejected the notion that proof of inducement is necessary. See, e.g., United States v. Jannotti, 673 F.2d 578, 595 (3d Cir.) (en banc), cert. denied, 457 U.S. 1106 (1982); United States v. Hedman, 630 F.2d 1184, 1195 (7th Cir. 1980), cert. denied, 450 U.S. 965 (1981); United States v. Butler, 618 F.2d 411, 417-18 (6th Cir.), cert. denied, 447 U.S. 927 (1980); United States v. Price, 617 F.2d 455, 458 (7th Cir. 1979); United States v. Braasch, 505 F.2d 139, 151 (7th Cir. 1974), cert. denied, 421 U.S. 910 (1975). However, I do not read those decisions to permit a conviction for extortion under color of official right absent evidence that the public official misused his office to obtain the benefits. Certainly the facts of those cases, and of most of official right, establish conduct from which inducement can readily be inferred. See United States v. Jannotti, 673 F.2d at 596 (payment made after "assurances that there would be no obstacles" to construction of hotel project); United States v. Hedman, 630 F.2d at 1188-91 (city building inspectors accepted concealed payoffs in return for nonenforcement of housing code); United States v. Butler, 618 F.2d at 418 (town public works commissioner accepted money from developer in exchange for moving up priority of his projects); United States v. Price, 677 F.2d at 458 (victim testified that he did not pay city electrical inspector money, he would later have to pay "twice something for the same job"); United States v. Braasch, 505 F.2d at 151 (protection money extorted from bar owners by police officers); see, e.g., United States v. Dozier, 672 F.2d 531, 538 (5th Cir.) (state commissioner of agriculture "asked for ten thousand dollars in return for granting a charter to the owner of a livestock auction barn"), cert. denied, 51 U.S.L.W. 3303 (U.S. Oct. 18, 1982); United States v. Barber, 668 F.2d 778, 781 (4th Cir.) (state liquor control commissioner removed quantities of state-owned liquor from state warehouses and subsequently billed the liquor suppliers for the shortage), cert. denied, 51 U.S.L.W. 3254 (U.S. Oct. 4, 1982); United States v. Scacchetti, 668 F.2d 643, 646 (2d Cir.) (judge offered to assist automobile businessman with his license suspension case in return for free auto repair service), cert. denied, 50 U.S.L.W. 3998.01 (U.S. June 21, 1982); United States v. French, 628 F.2d 1069, 1072 (8th Cir.) (city marshal accepted cash in return for settlement of forfeited bonds), cert. denied, 449 U.S. 956 (1980); United States v. Williams, 621 F.2d 123, 125-26 (5th Cir. 1980) (school board member asked for and received airline tickets and cash from contractors doing business with the school board), cert. denied, 450 U.S. 919 (1981); United States v. Grande, 620 F.2d 1026, 1031 (4th Cir.) (reasonable inference that city housing director misused office by accepting money from prospective contractors in return for supplying cost data on prospective projects), cert. denied, 449 U.S. 830 (1980); United States v. Cerilli, 603 F.2d 415, 418 (3d Cir. 1979) (state transportation official demanded payments as a condition to state's leasing of privately-owned snow removal equipment), cert. denied, 444 U.S. 1043 (1980); United States v. Summers, 598 F.2d 450, 452-53 (5th Cir. 1979) (town public works official told contractor to "come up with five percent of the total bid price" if you want to get the contract); United States v. Wright, 588 F.2d 31, 34-35 (2d Cir. 1978) (school board official's exchange of letter of intent to deliver a speech for cash is evidence of extortive demand), cert. denied, 440 U.S. 917 (1979); United States v. Harding, 563 F.2d 299, 301 (6th Cir. 1977) (real estate commissioner sold copies of licensing exam and answers in advance of exam date), cert. denied, 434 U.S. 1062 (1978); United States v. Adcock, 558 F.2d 397, 400 (8th Cir.) (state liquor commissioner took kickbacks in return for his persuading liquor commission to purchase victims' wine), cert. denied, 434 U.S. 921 (1977); United States v. Brown, 540 F.2d 364, 373 (8th Cir. 1976) (city building commissioner proposed rental kickback scheme which construction companies agreed to for fear of retribution); United States v. Hall, 536 F.2d 313, 317-18, 320-21 (10th Cir.) (allegation that governor in exchange for cash agreed to exert his influence for the benefit of the victims), cert. denied,

429 U.S. 919 (1976); United States v. Hathaway, 534 F.2d 386, 394 (1st Cir.) (state redevelopment authority director "used his office of [redevelopment director] to initiate and induce payments" in exchange for fair consideration of contract proposals), cert. denied, 429 U.S. 819 (1976); United States v. Trotta, 525 F.2d 1096, 1097-98 (2d Cir. 1975) (indictment charged town public works commissioner with demanding and obtaining political contributions from contractors under his control), cert. denied, 425 U.S. 971 (1976); United States v. Mazzei, 521 F.2d 639, 743-44 (3d Cir. (en banc) (victim testified that he gave state senator cash because "I thought that was the method that state leases were handled"), cert. denied, 423 U.S. 1014 (1975); United States v. Price, 507 F.2d 1349, 1350 (4th Cir. 1974) (per curiam) (payment of cash to county councilman in exchange for occupancy permit); United States v. Crowley, 504 F.2d 992, 995 (7th Cir. 1974) (police officers paid protection money); United States v. Staszcuk, 502 F.2d 875, 878 (7th Cir. 1974) (alderman accepted cash in return for not opposing zoning ordinance amendments), modified in part on other grounds, 517 F.2d 53 (en banc), cert. denied, 423 U.S. 837 (1975); United States v. Hyde, 448 F.2d 815, 833 (5th Cir. 1971) (state attorney general threatened loan companies with lawsuits if cash payments were not made), cert. denied, 404 U.S. 1058 (1972).

Our prior decisions reinforce my conclusion that wrongful use of office involves some action by the public official to induce the benefits given. The government and the majority mistakenly rely on United States v. Trotta, 525 F.2d 1096 (2d Cir. 1975), cert. denied, 425 U.S. 971 (1976), where we reasoned that an "indictment is [not] effective because of its failure to allege "a specifically identifiable misuse of office," in which [the public official] engaged, as an unlawful quid pro quo or a consideration in the nature of official action running from [the public official] to [the victim] in return for the payment of the money not lawfully owed." Id. at 1100. However, the indictment in Trotta did allege that the public official demanded and obtained cash to which neither he nor his office was entitled. That demand, coupled with the power of his public office, was a sufficient allegation of extortion. Id. ("the pressure exerted by [the public official] by means of the power of his public office to induce the payment of the money is, in itself, the misuse of the office"). Similarly, in United States v. Scacchetti, 668 F.2d 648 (2d Cir.), cert. denied, 50 U.S.L.W. 3998.01 (U.S. June 21, 1982), we characterized the public official's role in committing extortion under color of official right as follows:

The essential in the statute is the use of the office through its acts unrelated to the duties of the public official but which could only be undertaken because of his official position. So long as the motivation for the payment focuses on the office of the recipient, the conduct falls within the ambit of the Hobbs Act. The government's proof was in this instance sufficient to demonstrate that the defendant made his demands in connection with the misuse of the authority of his public office.

Id. at 647. Extortion under color of official right begins with the public official, not with the gratuitous actions of another. See United States v. Barber, 668 F.2d 778, 783-84 (4th Cir.) (voluntary payment of money is not extortion), cert. denied, 51 U.S.L.W. 3254 (U.S. Oct. 4, 1982).

Granted, inducement can take many forms, some more subtle than others. But, requiring evidence of inducement would not necessarily foreclose a conviction on the evidence in this case, or in most cases for that matter. Wrongful use of public office can be established with proof of a request, demand or solicitation of benefits whether by the wink of an eye or otherwise; proof of a quid pro quo would suffice as would other circumstantial evidence tending to show that the public official induced the benefits. If, as the majority suggests, the evidence establishes that O'Grady "clearly created the impression, not by words but by deeds, that vendors whose business fortunes with the NYCTA depended on him were expected to make generous "gifts' to him,"*fn7 then O'Grady could not escape conviction because it would be easy for the government to prove that those who gave, profited, and those who did not, lost. However, there was very little, if any, evidence that O'Grady asked for or demanded benefits, that he offered quid pro quo in exchange for benefits, that he forestalled official action in anticipation of receiving benefits, or that he misused his public office in any way. One vendor did testify that his "communications" with O'Grady "improved" after he treated O'Grady and his wife to dinner. Another vendor testified that O'Grady once complained to him of insufficient generosity and that same vendor testified that on one occasion O'Grady's attitude toward his proposal improved after O'Grady was taken on an expense paid trip to Florda.*fn8 Overall, however, the evidence suggested only that O'Grady, like other officials of NYCTA, accepted what was offered.

I recognize that by requiring some evidence of inducement, some of the most subtle forms of extortion might go unpunished. However, I prefer to err on the side of under-inclusiveness when dealing with a criminal statute that provides for twenty years imprisonment and a $10,000 fine. This simple fact is that the Hobbs Act by its terms punishes extortion, not the receipt of gratuities. I do not doubt the power of Congress to proscribe the illegal receipt of gratuities. But, it has not done so with the Hobbs Act.

In 1962, Congress enacted a comprehensive regulatory scheme governing the conduct of federal officials that punishes the receipt of bribes, 18 U.S.C. § 201(c) (1976), and the receipt of gratuities, 18 U.S.C. § 201(g) (1976).*fn9 The government's burden of proof under 18 U.S.C. § 201(g) is remarkably similar to its burden of proof under the Hobbs Act as that burden is defined by the majority.

What is proscribed [under 18 U.S.C. § 201(g)], simply put, is a public official's receipt of a gratuity, to which he was not legally entitled, given to him in the course of his everyday duties, for or because of any official act performed or to be performed by such public official, and he was in a position to use his authority in a manner which could affect the gift-giver. See, United States v. Alessio, 528 F.2d 1079, 1082 (9th Cir. 1976). . . .

United States v. Niederberger, 580 F.2d 63, 69 (3d Cir.) (IRS employee convicted for receiving gratuities from oil corporations in the form of golfing trips), cert. denied, 493 U.S. 980 (1978). Under the majority's holding, a federal official can be convicted of extortion under color of official right or illegal receipt of gratuities with evidence that he accepted benefits knowing they were given because of his official position. Compare United AUI States v. Evans, 572 F.2d 455, 482 (5th Cir.) (In prosecution under section 201(g), "[t]he jury was well justified in concluding that Evans accepted the money and favors with knowledge that the payments were made because of his official position."), cert. denied, 439 U.S. 870 (1978), with Majority Opinion ("public official who wrongfully accepts the benefits is . . . responsible under the Hobbs Act . . . for his own conduct in accepting benefits . . . which he realizes are offered to him only because of his office"). Yet, a federal official is subject to twenty years imprisonment plus a $10,000 fine under the Hobbs Act whereas he might receive at most two years imprisonment plus a $10,000 fine if prosecuted for the same conduct under 18 U.S.C. § 201(g). Similarly, a New York official could be convicted under the Hobbs Act for conduct prohibited by the New York gratuities statute -- a class A misdemeanor. N.Y. Penal Law § 200.35 (McKinney 1975); see Majority Op. at n.4.

Congress' enactment in 1962 of a statute prohibiting the receipt of gratuities by federal officials convinces me that Congress did not intend in 1934 to prohibit the same conduct with the Hobbs Act. To attribute to the Hobbs Act a congressional intent so broad, so severe and so foreign to the stated purpose of the Act is to step well beyond the proper role of the judiciary. See In re Grand Jury Subpoena (Alphonse Persico), 522 F.2d 41, 65 (2d Cir. 1975) ("in moving beyond the confines of literal statutory language and of legislative history, courts must proceed cautiously for fear of overreaching their traditional role, particularly where statutes may be dangerously expanded to encroach on individual liberties").

C. Can Wrongful Use of Office Be Inferred From the Acceptance of Benefits?

As I understand the majority's decision, the government need not show wrongful conduct on the part of the public official to convict him of extortion under color of official right. The majority holds that the trier of fact can reasonably infer wrongful use of office from the mere receipt of benefits. In my judgment, that inference is unreasonable because it fails to distinguish innocent gift giving and legitimate business-related conduct from extortion. Over the course of a nine year contractual relationship, it is not surprising that the R-46 vendors sought to cultivate a positive working relationship with O'Grady. It is also not surprising that O'Grady took advantage of the vendors' goodwill. But the mere fact that O'Grady was entertained extensively by the vendors does not in itself suggest that he extorted the entertainment or neglected his public duties as a result. In a related context, the Fourth Circuit considered whether a bank officer misused funds of a federal bank by entertaining "state and party officials who might be influential in securing government deposits for the bank." United States v. Arthur, 544 F.2d 730, 733 (4th Cir. 1976). In reversing the conviction, the court emphasized the distinction between bribery and "goodwill" expenditures, that is, a specific intent to induce action:

If "influence" is given its broadest common meaning, it is clear that "goodwill" gifts and favors to and entertainment of government officials are intended to influence the judgment of such officials. That is, such expenditures are made with the hope that the officials will be more likely to award government business to the donor if a favorable business climate is created than if such a climate is not established. But, . . . this type of influence does not amount to bribery.

Id. at 735. The majority does not distinguish innocent business-related conduct from unlawful abuse of official power. Although the Hobbs Act has withstood challenge on the ground of void for vagueness, see United States v. Dozier, 672 F.2d 531, 538-40 (5th Cir.), cert. denied, 51 U.S.L.W. 3303 (U.S. Oct. 18, 1982); United States v. Williams, 621 F.2d 123, 124-25 (5th Cir. 1980), cert. denied, 450 U.S. 919 (1981), the majority's interpretation of extortion under color of official right invites a review of those decisions. Recall that most of the R-46 vendors testified at trial that the conduct described in the indictment was an industry-wide practice. O'Grady was not always alone at the Greenbrier; in fact, he was accompanied by his colleagues at NYCTA and by other transit authority officials from across the country. Moreover, the even of selective prosecution is evident. I find it anomalous that our tax laws approve and bless the bait that hooked O'Grady. See I.R.C. § 162(a) (1983).

The majority attempts to deal with the fatal overbreadth of extortion under color of official right as defined by the district court, recognizing that it criminalizes "even trivial gratuities, such as a cigar, a taxi ride, or a single meal."*fn10 In its view, innocent conduct can be distinguished from unlawful conduct by requiring proof that "(1) the benefits conferred on the official could reasonably be perceived as likely to affect his exercise of his public duties, and (2) that the official was aware that the benefits would be so perceived." The majority draws a distinction only in degree. I believe that there should be a distinction in kind rather than degree. We should not equate the cost of benefits given a public official to the value of those benefits in the public official's hand. O'Grady enjoyed golf, but he may have been equally satisfied playing golf at Winged Foot in Mamaroneck, New York, without a plane ride, as at the Greenbrier. The R-46 vendors routinely gathered customers from across the country for conventions or outings at the vendors' expense. In most cases, the distinction was selected by the vendor, not by O'Grady. Is it more corrupt for a public official to accept a gourmet meal at an expensive French restaurant chosen by the bestower than an inexpensive dinner at the public official's favorite family restaurant? Does it make sense to focus our attention on the cost to the donor, who is evidently doing nothing illegal and in fact has the IRS" blessing, instead of on the value to the donee who is supposedly acting corruptly? I do not believe there is any necessary correlation between the quantity and quality of benefits given to a public official and the unlawful influence obtained as a result. Consequently, the majority fails to cure the overbreadth and vagueness problem.

Although the majority appends an additional element to the government's burden of proof, the failure of the district court to charge this additional element is deemed harmless error. The majority is impressed by the "largesse" bestowed upon O'Grady and apparently agrees with the government's position at oral argument that "when gifts of that quantity and of that nature are given over an extended period of time, the irresistible conclusion is that in fact they were not gifts, but that they were given to forestall negative action being taken." I am unaware of any evidence from which it can be inferred that, in the words of the majority, "O'Grady favored certain vendors after partaking of their generosity." To the contrary, at least four vendors testified that O'Grady was not affected or influenced by the quantity or quality of benefits bestowed on him. Moreover, New York Air Brake, the most generous vendor ($14,580.71 of the $34,199.86 in benefits detailed in the indictment), played an insignificant role in the R-46 contract; its president testified that "New York City Transit Authority has never been an important customer of ours. We have not gotten nothing but test quantities and token application there."*fn11 Trial Tr. at 957. Yet, the prime contractor, Pullman-Standard, whom one would expect would have been the most generous if in fact its fortunes turned on pleasing O'Grady, account for only $5,903.74 of the $34,199.86 in benefits given O'Grady over the nine year project. There is no basis for inferring misuse of office from the receipt of benefits by a public official. That is not to say that O'Grady could not have been found guilty on the facts of this case by a properly charged jury. But, a new trial is necessary because the charge to the jury omitted an essential element of the offense, to wit, a finding that O'Grady misused his office to obtain benefits not due him or his office.

I do not bless the course of dealings that existed between NYCTA officials and R-46 contract vendors, but I do not agree that O'Grady's participation in the industry-wide practice detailed in the indictment without more is punishable under the Hobbs Act. Public officials occupy unique positions of influence and power in our society and are the focus of great admiration and attention as well as intensive lobbying. Vast sums of money are spent in efforts to persuade, cajole or appease them.*fn12 The charge given here by the district court would make the mere receipt of a benefit by a public official, whether a hot dog from a street vendor or an expense-paid vacation to Disney World, punishable under the Hobbs Act with up to twenty years imprisonment and a $10,000 fine. The majority's modification of the charge offers little comfort. I fear the implication of this decision that places every public official in such jeopardy by virtue of his status.

The position of the United States Attorney that "the Hobbs Act may be reviewed as enacting a special code of integrity for public officials," is unsettling at best. The government assures us that "as a matter of prosecutorial discretion, it would make no sense to attempt to prosecute for . . . de minimus, ambiguous conduct." See supra note 5. The fact that ambiguous conduct could be prosecuted under the majority's interpretation raises serious constitutional questions of fair notice and overbreadth and makes a mockery of the principle that criminal statutes must be construed strictly with any ambiguity resolved in favor of lenity. United States v. Enmons, 410 U.S. 396, 411 (1973); cf. United States v. Chestnut, 394 F.Supp. 581, 591 (S.D. N.Y. 1975) (narrow construction of criminal statute meets "least drastic means" test), aff'd, 533 F.2d 40 (2d Cir.), cert. denied, 429 U.S. 829 (1976). Extortion under color of official right has a well-recognized meaning at common law. In the absence of clear congressional intent to extend the prohibitions of the Hobbs Act to embrace conduct such as that of O'Grady, I would prefer to stay within recognized boundaries. See United States v. Everett, 700 F.2d 900, 904 (3d Cir. 1983). The fact that present United States Attorneys are responsible and fair-minded persons does little to calm my anxiety. See Baggett v. Bullitt, 377 U.S. 360, 373 (1964) ("Well-intentioned prosecutors and judicial safeguards do not neutralize the vice of a vague law.") The evil of selective prosecution is not minimized by the likelihood that de minimus violations will be overlooked. We remain a nation of laws rather than men.

I would reverse the conviction.


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