Evans v. United States, 504 U.S. 255, 18 (1992)

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272

EVANS v. UNITED STATES

Opinion of Kennedy, J.

Justice O'Connor, concurring in part and concurring in the judgment.

I join Parts I and II of the Court's opinion, because in my view they correctly answer the question on which the Court granted certiorari—whether or not an act of inducement is an element of the offense of extortion under color of official right. See Pet. for Cert. i. The issue raised by the dissent and discussed in Part III of the Court's opinion is not fairly included in this question, see this Court's Rule 14.1(a), and sound prudential reasons suggest that the Court should not address it. Cf. Yee v. Escondido, 503 U. S. 519, 535-538 (1992). Neither party in this case has briefed or argued the question. A proper resolution of the issue requires a detailed examination of common law extortion cases, which in turn requires intensive historical research. As there appear to be substantial arguments on either side, we would be far more assured of arriving at the correct result were we to await a case in which the issue had been addressed by the parties. It is unfair to the United States to decide a case on a ground not raised by the petitioner and which the United States has had no opportunity to address. For these reasons, I join neither the dissent nor Part III of the Court's opinion, and I express no view as to which is correct.

Justice Kennedy, concurring in part and concurring in the judgment.

The Court gives a summary of its decision in these words: "We hold today 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." Ante, at 268. In my view the dissent is correct to conclude that this language requires a quid pro quo as an element of the Government's case in a prosecution under 18 U. S. C. 1951, see post, at 285-287, and the Court's opinion can be interpreted in a way that is consistent with this rule. Although the Court appears to accept the re-

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