Evans v. United States, 504 U.S. 255, 13 (1992)

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Cite as: 504 U. S. 255 (1992)

Opinion of the Court

Petitioner argues that the jury charge with respect to extortion, see supra, at 257-258, allowed the jury to convict him on the basis of the "passive acceptance of a contribution." Brief for Petitioner 24.18 He contends that the instruction did not require the jury to find "an element of dutions, and that there would be a budget either way ("Either way, yep. Oh, I understand that. I understand"). Id., at 38.

18 Petitioner also makes the point that "[t]he evidence at trial against [petitioner] is more conducive to a charge of bribery than one of extortion." Brief for Petitioner 40. Although the evidence in this case may have supported a charge of bribery, it is not a defense to a charge of extortion under color of official right that the defendant could also have been convicted of bribery. Courts addressing extortion by force or fear have occasionally said that extortion and bribery are mutually exclusive, see, e. g., People v. Feld, 262 App. Div. 909, 28 N. Y. S. 2d 796, 797 (1941); while that may be correct when the victim was intimidated into making a payment (extortion by force or fear), and did not offer it voluntarily (bribery), that does not lead to the conclusion that extortion under color of official right and bribery are mutually exclusive under either common law or the Hobbs Act. See, e. g., Stern, Prosecutions of Local Political Corruption Under the Hobbs Act: The Unnecessary Distinction Between Bribery and Extortion, 3 Seton Hall L. Rev. 1, 14 (1971) ("If the [Hobbs] Act is read in full, the distinction between bribery and extortion becomes unnecessary where public officials are involved").

Another commentator has argued that bribery and extortion were overlapping crimes, see Lindgren 905, 908, and has located an early New York case in which the defendant was convicted of both bribery and extortion under color of official right, see People v. Hansen, 241 N. Y. 532, 150 N. E. 542 (1925), aff'g, 211 App. Div. 861, 207 N. Y. S. 894 (1924). He also makes the point that the cases usually cited for the proposition that extortion and bribery are mutually exclusive crimes are cases involving extortion by fear and bribery, see, e. g., People v. Feld, supra; People v. Dioguardi, 8 N. Y. 2d 260, 263, 271-273, 168 N. E. 2d 683, 685, 690-692 (1960), and we note that the latter case was decided after the Hobbs Act, so it could not have been a case on which Congress relied. We agree with the Seventh Circuit in United States v. Braasch, 505 F. 2d 139, 151, n. 7 (1974), cert. denied, 421 U. S. 910 (1975), that " 'the modern trend of the federal courts is to hold that bribery and extortion as used in the Hobbs Ac[t] are not mutually exclusive. United States v. Kahn, 472 F. 2d 272, 278 (2d Cir. 1973), cert. den., 411 U. S. 982.' "


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