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1475

Element of 18 USC 912—Demanding or Obtaining a Thing of Value

The distinguishing element of the second offense in § 912 is demanding or obtaining a thing of value. This element is not limited in its application to things having commercial value. Even something as intangible as information has been held sufficient. United States v. Sheker, 618 F.2d 607 (9th Cir. 1980). Some courts further distinguish two separate violations, demanding on the one hand and obtaining on the other. Ekberg v. United States, 167 F.2d 380 (lst Cir. 1948); see Elliott v. Hudspeth, 110 F.2d 389, 390 (10th Cir. 1940); United States v. York, 202 F. Supp. 275, 276, 277 (E.D.Va. 1962).

It has been held that demanding and obtaining are merely modes of committing the offense and therefore are lesser offenses included in the more general offense of acting. Consequently, if the only act committed by the accused is the demanding or obtaining of a thing of value, he cannot be convicted both of acting as an officer of the United States and of demanding and/or obtaining a thing of value. See Ekberg v. United States, 167 F.2d at 384-87. The implication is that such facts would support a conviction under either the acting clause or the demanding and obtaining clause, but some courts hold that an allegation of demanding and obtaining appearing in the same count with an allegation of acting renders the count defective. See United States v. Leggett, 312 F.2d 566, 568 (4th Cir. 1962).

[cited in USAM 9-64.300]