Evans v. United States, 504 U.S. 255, 6 (1992)

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Opinion of the Court

ture from them." Morissette v. United States, 342 U. S. 246, 263 (1952).3

At common law, extortion was an offense committed by a public official who took "by colour of his office" 4 money that was not due to him for the performance of his official duties.5 A demand, or request, by the public official was not an element of the offense.6 Extortion by the public official was the rough equivalent of what we would now describe as "taking a bribe." It is clear that petitioner committed that offense.7 The question is whether the federal statute, insofar

3 Or, as Justice Frankfurter advised, "if a word is obviously transplanted from another legal source, whether the common law or other legislation, it brings the old soil with it." Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947).

4 Blackstone described extortion as "an abuse of public justice, which consists in an officer's unlawfully taking, by colour of his office, from any man, any money or thing of value, that is not due to him, or more than is due, or before it is due." 4 W. Blackstone, Commentaries *141 (emphasis added). He used the phrase "by colour of his office," rather than the phrase "under color of official right," which appears in the Hobbs Act. Petitioner does not argue that there is any difference in the phrases. Hawkins' definition of extortion is probably the source for the official right language used in the Hobbs Act. See Lindgren, The Elusive Distinction Between Bribery and Extortion: From the Common Law to the Hobbs Act, 35 UCLA L. Rev. 815, 864 (1988) (hereinafter Lindgren). Hawkins defined extortion as follows: "[I]t is said, That extortion in a large sense signifies any oppression under colour of right; but that in a strict sense, it signifies the taking of money by any officer, by colour of his office, either where none at all is due, or not so much is due, or where it is not yet due." 1 W. Hawkins, Pleas of the Crown 316 (6th ed. 1787).

5 See Lindgren 882-889. The dissent says that we assume that "common-law extortion encompassed any taking by a public official of something of value that he was not 'due.' " Post, at 279. That statement, of course, is incorrect because, as stated in the text above, the payment must be "for the performance of his official duties."

6 Lindgren 884-886.

7 Petitioner argued to the jury, at least with respect to the extortion count, that he had been entrapped, see App. 20; however, in light of the jury's verdict on that issue, we must assume that he was predisposed to commit the crime.

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