The opinion of the court was delivered by: Edelstein, District Judge:
Defendants' request that this Court charge the jury in this
case that there is a quid pro quo requirement under a theory of
extortion under color of official right. For the reasons
discussed below, defendants' request is denied.
There is a split amongst the circuits on whether an
affirmative act of inducement is required to prove extortion
under color of official right. In United States v. O'Grady,
742 F.2d 682 (1984), the Second Circuit held, en banc, that some
affirmative act of inducement by the official had to be shown
to prove the Government's case. While the Ninth Circuit has
followed the Second Circuit's position, other circuits have
In McCormick v. United States, ___ U.S. ___, 111 S.Ct. 1807,
114 L.Ed.2d 307 (1991), the Supreme Court explicitly declined
to address the inducement requirement. Id. 111 S.Ct. at 1813 n.
5. Rather, the Court addressed "the issue of what proof is
necessary to show that the receipt of a campaign contribution
by an elected official is violative of the Hobbs Act." Id.
(emphasis added). In focusing on the issue of campaign
contributions, the Court stated:
After discussing these concerns about prosecutions involving
campaign contributions for extortion under "color of official
right," the Court held that such contributions are vulnerable
to prosecution in two situation. First, "political
contributions are of course vulnerable if induced by the use of
force, violence or fear." Id. Second, "the receipt of such
contributions is also 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." Id.
Thus, the Court created a quid pro quo requirement in
prosecutions designed to show that the receipt of a campaign
contribution constitutes extortion "under color of official
right." As the Court's opinion makes clear, this requirement is
designed to protect against prosecutions based on conduct that
was long thought to be lawful and conduct that is "unavoidable"
in election campaigns financed by private contributions or
Defendant's argue that the Ninth Circuit's decision in
United States v. Montoya, 945 F.2d 1068 (9th Cir. 1991),
extends McCormick to payments beyond campaign contributions.
Accordingly, the defendant's request that the quid pro quo
requirement be charged here.
Montoya dealt in part with campaign contributions and in part
with honoraria. Like campaign contributions, honoraria may
lawfully be requested and received by politicians. Thus, the
Ninth Circuit's decision to apply a quid pro quo requirement in
Montoya is wholly consistent with the Supreme Court's concern
in McCormick that the theory of extortion under color of
official right could be used to prosecute conduct that was long
thought to be lawful and conduct "unavoidable" in privately
financed election campaigns. Montoya therefore does not
interpret McCormick to provide a quid pro quo requirement in
all prosecutions under a theory of extortion under "color of
official right." In sum, neither the holdings nor the rationale
of McCormick or Montoya extend to the conduct involved in this
Campaign contributions or honoraria are not at issue in this
case. What is at issue are an alleged request for a consulting
job for a spouse and an alleged interest free loan funneled
through a relative. Clearly, this case does not involve conduct
that has long been thought to be lawful or conduct
"unavoidable" in election campaigns financed by private
contributions or expenditures. Accordingly, an instruction that
there is a quid pro quo requirement is inappropriate in this
case. Defendant's request is therefore denied.
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