Evans v. United States, 504 U.S. 255, 19 (1992)

Page:   Index   Previous  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  Next

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

Opinion of Kennedy, J.

quirement of a quid pro quo as an alternative rationale, in my view this element of the offense is essential to a determination of those acts which are criminal and those which are not in a case in which the official does not pretend that he is entitled by law to the property in question. Here the prosecution did establish a quid pro quo that embodied the necessary elements of a statutory violation. I join Part III of the Court's opinion and concur in the judgment affirming the conviction. I write this separate opinion to explain my analysis and understanding of the statute.

With regard to the question whether the word "induced" in the statutory definition of extortion applies to the phrase "under color of official right," 18 U. S. C. 1951(b)(2), I find myself in substantial agreement with the dissent. Scrutiny of the placement of commas will not, in the final analysis, yield a convincing answer, and we are left with two quite plausible interpretations. Under these circumstances, I agree with the dissent that the rule of lenity requires that we avoid the harsher one. See post, at 289. We must take as our starting point the assumption that the portion of the statute at issue here defines extortion as "the obtaining of property from another, with his consent, induced . . . under color of official right."

I agree with the Court, on the other hand, that the word "induced" does not "necessarily indicat[e] that the transaction must be initiated by the" public official. Ante, at 266 (emphasis in original). Something beyond the mere acceptance of property from another is required, however, or else the word "induced" would be superfluous. That something, I submit, is the quid pro quo. The ability of the official to use or refrain from using authority is the "color of official right" which can be invoked in a corrupt way to induce payment of money or to otherwise obtain property. The inducement generates a quid pro quo, under color of official right, that the statute prohibits. The term "under color of" is used, as I think both the Court and the dissent agree, to

273

Page:   Index   Previous  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  Next

Last modified: October 4, 2007