Evans v. United States, 504 U.S. 255, 21 (1992)

Page:   Index   Previous  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  Next

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

Opinion of Kennedy, J.

a payment will result in the victimization of the prospective payor or the withholding of more favorable treatment, a victimization or withholding accomplished by taking or refraining from taking official action, all in breach of the official's trust. See Lindgren, The Elusive Distinction Between Bribery and Extortion: From the Common Law to the Hobbs Act, 35 UCLA L. Rev. 815, 887-888 (1988) (observing that the offense of official extortion has always focused on public corruption).

Thus, I agree with the Court, that the quid pro quo requirement is not simply made up, as the dissent asserts. Post, at 287. Instead, this essential element of the offense is derived from the statutory requirement that the official receive payment under color of official right, see ante, at 268, n. 20, as well as the inducement requirement. And there are additional principles of construction which justify this interpretation. First is the principle that statutes are to be construed so that they are constitutional. See Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U. S. 568, 575 (1988), and cases cited therein. As one Court of Appeals Judge who agreed with the construction the Court today adopts noted, "the phrase 'under color of official right,' standing alone, is vague almost to the point of unconstitutionality." United States v. O'Grady, supra, at 695 (Van Graafeiland, J., concurring in part and dissenting in part) (citing Hoffman Estates v. Flip-side, Hoffman Estates, Inc., 455 U. S. 489, 498-499 (1982)). By placing upon a criminal statute a narrow construction, we avoid the possibility of imputing to Congress an enactment that lacks necessary precision.

Moreover, the mechanism which controls and limits the scope of official right extortion is a familiar one: a state of mind requirement. See Morissette v. United States, 342 U. S. 246 (1952) (refusing to impute to Congress the intent to create a strict liability crime despite the absence of any explicit mens rea requirement in the statute). Hence, even


Page:   Index   Previous  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  Next

Last modified: October 4, 2007