Evans v. United States, 504 U.S. 255, 20 (1992)

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274

EVANS v. UNITED STATES

Opinion of Kennedy, J.

sweep within the statute those corrupt exercises of authority that the law forbids but that nevertheless cause damage because the exercise is by a governmental official. Cf. Monroe v. Pape, 365 U. S. 167, 184 (1961) (" 'Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken 'under color of' state law' ") (quoting United States v. Classic, 313 U. S. 299, 326 (1941)).

The requirement of a quid pro quo means that without pretense of any entitlement to the payment, a public official violates 1951 if he intends the payor to believe that absent payment the official is likely to abuse his office and his trust to the detriment and injury of the prospective payor or to give the prospective payor less favorable treatment if the quid pro quo is not satisfied. The official and the payor need not state the quid pro quo in express terms, for otherwise the law's effect could be frustrated by knowing winks and nods. The inducement from the official is criminal if it is express or if it is implied from his words and actions, so long as he intends it to be so and the payor so interprets it.

The criminal law in the usual course concerns itself with motives and consequences, not formalities. And the trier of fact is quite capable of deciding the intent with which words were spoken or actions taken as well as the reasonable construction given to them by the official and the payor. See McCormick v. United States, 500 U. S. 257, 270 (1991) ("It goes without saying that matters of intent are for the jury to consider"). In this respect a prosecution under the statute has some similarities to a contract dispute, with the added and vital element that motive is crucial. For example, a quid pro quo with the attendant corrupt motive can be inferred from an ongoing course of conduct. Cf. United States v. O'Grady, 742 F. 2d 682, 694 (CA2 1984) (Pierce, J., concurring). In such instances, for a public official to commit extortion under color of official right, his course of dealings must establish a real understanding that failure to make

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