Evans v. United States, 504 U.S. 255, 23 (1992)

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

Opinion of Kennedy, J.

Morissette is relevant in one final respect. As I have indicated, and as the jury instructions in this case made clear, an official violates the statute only if he agrees to receive a payment not due him in exchange for an official act, knowing that he is not entitled to the payment. See App. 13 (requiring "wrongful use of otherwise valid official power"). Modern courts familiar with the principle that only a clear congressional statement can create a strict liability offense, see Morissette, supra, understand this fundamental limitation. I point it out only because the express terms of the common-law definition of official extortion do not state the requirement that the official's intent be corrupt, see, e. g., Whaley, supra, at 663-664; Hanley, supra, at 401-402, 104 N. W., at 59; Lindgren, 35 UCLA L. Rev., at 870-871 (setting forth six colonial-era definitions of official extortion), and some courts in this country appear to have taken the view that the common-law offense had no mens rea requirement. See, e. g., Commonwealth v. Bagley, 24 Mass. 279, 281 (1828) (affirming the conviction "of an honest and meritorious public officer, who by misapprehension of his rights [had] demanded and received a lawful fee for a service not yet performed"). On the other hand, in other jurisdictions corrupt motive was thought to be an element of the offense. E. g., Whaley, supra, at 664 (remarking that the jury found that the defendant accepted payment "with the corrupt intent charged in the indictment"). In any event, even if the rule had been otherwise at common law, our modern jurisprudence would require that there be a mens rea requirement now. In short, a public official who labors under the good-faith but erroneous belief that he is entitled to payment for an official act does not violate the statute. That circumstance is not, however, presented here.

The requirement of a quid pro quo in a 1951 prosecution such as the one before us, in which it is alleged that money was given to the public official in the form of a campaign contribution, was established by our decision last Term in


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