ROBERT L. MCCORMICK, PETITIONER V. UNITED STATES OF AMERICA No. 89-1918 In The Supreme Court Of The United States October Term, 1990 On Writ Of Certiorari To The United States Court Of Appeals For The Fourth Circuit Brief For The United States TABLE OF CONTENTS Questions Presented Opinion below Jurisdiction Statutory provisions involved Statement Summary of argument Argument: I. Petitioner violated the Hobbs Act by inducing a personal payoff under color of official right A. The Hobbs Act prohibits an elected official from inducing a personal payoff in return for doing his job B. Petitioner was convicted of obtaining a personal payoff, not a campaign contribution II. Petitioner's tax fraud conviction is valid even if his Hobbs Act conviction is overturned Conclusion OPINION BELOW The opinion of the court of appeals (Pet. App. 1-22) is reported at 896 F.2d 61. JURISDICTION The judgment of the court of appeals was entered on February 12, 1990. A petition for rehearing was denied on March 7, 1990. The petition for a writ of certiorari was filed on June 5, 1990, and was granted on October 1, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED The Hobbs Act, 18 U.S.C. 1951, provides as follows: (a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both. (b) As used in this section -- (1) The term "robbery" means the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining. (2) the term "extortion" means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right. (3) The term "commerce" means commerce within the District of Columbia, or any Territory or Possession of the United States; all commerce between any point in a State, Territory, Possession, or the District of Columbia and any point outside thereof; all commerce between points within the same State through any place outside such State; and all other commerce over which the United States has jurisdiction. (c) This section shall not be construed to repeal, modify, or affect section 17 of Title 15, sections 52, 101-115, 151-166 of Title 29 or sections 151-188 of Title 45. Section 7206 of the Internal Revenue Code, 26 U.S.C., provides in relevant part as follows: Any person who -- (1) * * * Willfully makes and subscribes any return, statement, or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter * * * * * * * * shall be guilty of a felony and, upon conviction thereof, shall be fined not more than $100,000 * * * or imprisoned not more than 3 years, or both, together with the costs of prosecution. STATEMENT QUESTIONS PRESENTED 1. Whether petitioner, an elected public official, was properly convicted of violating the Hobbs Act by wrongfully inducing the making of a personal payoff for the performance of his official duties. 2. Whether petitioner, who did not declare the payoff he received as income, was properly convicted of filing a false personal income tax return. After a jury trial in the United States District Court for the Southern District of West Virginia, petitioner, a state legislator, was convicted of extortion under color of official right, in violation of the Hobbs Act, 18 U.S.C. 1951; and of filing a false income tax return, in violation of 26 U.S.C. 7206(1). He was sentenced to three years' probation, fined $50,000, and ordered to pay restitution of $900 and prosecution costs of $1,647.50. The court of appeals affirmed. 1. In 1984, petitioner was a member of the West Virginia House of Delegates. He represented an economically depressed coal mining region that had long suffered from a shortage of medical personnel. To help alleviate the problem, West Virginia legislation had for some time allowed foreign medical school graduates who had not met the State's medical licensing requirements to practice medicine under temporary permits while studying to pass the licensing examinations. Tr. 119-129, 377-378. Approximately 20 to 30 temporary-permit doctors had repeatedly failed the examinations but were able to continue practicing medicine while studying to take the examinations again. Tr. 610. The legislature passed a bill in 1980 that required the temporary-permit program to terminate in 1982. In 1981, that deadline was postponed until 1984. Tr. 122, 163, 378-379, 553. a. Petitioner had been a long-time supporter of the temporary-permit system. Tr. 152, 228, 341. In 1983, lobbyist John Vandergrift called petitioner and said that he was interested in speaking to the temporary-permit doctors to see whether they would hire him to work on their behalf. Petitioner gave Vandergrift the name and telephone number of Dr. Ernesto Manuel, who had acted as a spokesman for the doctors. Tr. 151-152. A number of temporary-permit doctors, including Dr. Manuel, subsequently met with Vandergrift, hired him as their lobbyist, and at Vandergrift's suggestion formed the "Coalfield Health Care Association." Dr. Manuel became the president of the Association. Tr. 151-154, 157, 293-294. During the 1984 West Virginia legislative session, petitioner sponsored legislation urged by the Association that extended the temporary-permit system for another year. Tr. 163-167. On March 10, 1984, the last day of the 1984 legislative session, Vandergrift, who was staying at a Charleston hotel, learned that petitioner had incurred a $766.34 bill at the hotel. Vandergrift paid the bill using Dr. Manuel's credit card. When Vandergrift later told petitioner that he had taken care of the bill, petitioner did not ask why. Tr. 1034-1036; C.A. App. 1125. Then, shortly after the close of the 1984 legislative session, petitioner agreed at Vandergrift's request to sponsor new legislation, to be introduced during the 1985 session, that would grant permanent medical licenses to the temporary-permit doctors. Tr. 165-167. Vandergrift testified that late in May of 1984, shortly before the primary election, he had a telephone conversation with petitioner. In that conversation, Vandergrift stated, petitioner "expressed to me that his campaign was rather expensive, the election was coming up, and that he had put out a couple of thousand dollars out of his pocket and he hadn't heard anything from the foreign physicians and he wanted to know what I was going to do about it." Tr. 167-168. According to Vandergrift, petitioner was "very upset" and "unfriendly," and the tone of his voice was "very rough." Tr. 168, 282. Vandergrift told petitioner he would get in touch with Dr. Manuel and "see what I could do." Tr. 168. Vandergrift then "relayed the conversation to Dr. Manuel." Tr. 169. Because petitioner "had mentioned he had to put out cash," Vandergrift testified, "I decided to go ahead and replace it in kind." Tr. 210. A day or two later, on June 1, 1984, Dr. Manuel cashed a $1,200 Association check and gave the proceeds to Vandergrift. Under his agreement with Dr. Manuel, Vandergrift kept $300 of the money and placed the rest, in the form of nine $100 bills, in an envelope to deliver to petitioner. Tr. 170-171, 306-308. Vandergrift then personally delivered the envelope containing the $900 to petitioner at his office at McCormick's Department Store in Logan, West Virginia. Petitioner's receipt of the $900 provided the basis for the Hobbs Act count on which he was convicted. Vandergrift told petitioner there would be more money later that day. Petitioner said he would not be in his office that afternoon, but that if Vandergrift had more money he should give it to petitioner's grandnephew. Tr. 171-172. Later that day, Vandergrift received a $4,000 Association check payable to him from Dr. Manuel, with the understanding that Vandergrift would keep $2,000 and the other $2,000 would be delivered to petitioner. Tr. 309, 354. That same day, Vandergrift cashed the $4,000 check and put $2,000 of it in $100 bills in an envelope. Accompanied by another Association member, Conrad Cabauatan, whose wife was a temporary-permit doctor, Vandergrift delivered the envelope to petitioner's grandnephew, who later gave it to petitioner. Tr. 176-178. The government's evidence showed that Dr. Manuel delivered three more cash payments from the doctors to petitioner: $800 on November 1, 1984; $600 on December 19, 1984; and $950 on May 15, 1985. Tr. 318-326. /1/ Neither the doctors nor petitioner treated the $900 June 1 payment, or any of the other cash payments, as a campaign contribution. Petitioner did not report the payments on his campaign books or in his required campaign financing filings. C.A. App. 1102-1114 (petitioner's campaign financial statements). Nor did he report it on his federal tax return for 1984. C.A. App. 1083-1095 (tax return). The Association kept a record of its payments to petitioner, but the Association's records did not identify those payments as campaign contributions; indeed, the Association used a code to disguise the fact that petitioner was the recipient. C.A. App. 1068, 1070 (photocopies of the five relevant Association checks), 1076, 1078, 1080 (Association records). /2/ b. Dr. Manuel testified that he gave petitioner the cash payments to "express() our thanks for what he has been doing." Tr. 320. Dr. Jamie Gosien, who was present when the $600 payment was made on December 19, 1984, understood that the cash payment was made "for the bill," Tr. 566, and "in return for (petitioner's) efforts," Tr. 582. Conrad Cabauatan testified that petitioner was given "the money in order to further the cause of the Coalfield Health Care Association * * * to secure a permanent license for those temporary licensed doctors." Tr. 893. Vandergrift stated that he advised the doctors to give petitioner the money because he "wouldn't take the risk of not giving it to him." Tr. 281. The evidence showed that petitioner did, in fact, aid the temporary-permit doctors. At Dr. Manuel's request, petitioner appeared at a November 12, 1984, hearing of the West Virginia Board of Medicine to argue the temporary-permit doctors' cause and to appeal to the Board not to oppose legislation favorable to the temporary-permit doctors. Tr. 321-322, 387-388. The legislature reconvened in January 1985, and in February petitioner sponsored the favorable licensing legislation, H.B. 1431. Tr. 180-183, 325-326. Petitioner spoke at length in favor of the bill, which passed the House of Delegates and the Senate and became law on May 2, 1985. Tr. 183-184, 325; C.A. App. 1022-1067 (transcript of petitioner's remarks during debate on H.B. 1431). Two weeks after the bill was enacted, petitioner received the last of the series of cash payments from Dr. Manuel. Tr. 325-331. In spite of the enactment of the licensing bill, seven of the temporary-permit doctors, including Dr. Manuel, Dr. Gosien, and Conrad Cabauatan's wife, were denied licenses by the Medical Licensing Board because they failed to meet even the liberal licensing requirements of the new law. Tr. 118-122, 184-185, 331-332, 602-604, 612-617. Vandergrift contacted petitioner and said that petitioner would have to make an appearance at the next Board meeting. Vandergrift told petitioner that "in order to get the board to change (its) mind and back up on the decision, he would have to intimidate the hell out of them." Tr. 185. On July 8, 1985, petitioner appeared at the hearing and made a presentation that included thinly veiled threats of legislative action adverse to the interests of the Board. Tr. 186-187, 412-418, 591-592. Petitioner assured the Board that "if I had a personal interest where I was going to have some gain out of this thing, I would not expect you-all to believe a word I've said or even to let me try to sway you in reconsidering your action." Tr. 502. As a result of the hearing, five of the seven doctors, including Dr. Manuel, Dr. Gosien, and Conrad Cabauatan's wife, obtained permanent licenses. Tr. 403-404, 593. The following year, Vandergrift asked petitioner whether another politician should solicit funds from the formerly unlicensed physicians. According to Vandergrift, petitioner responded by saying that "the doctors had taken good care of him and the debt was paid and everyone else should basically not be asking them for any more political contributions." Tr. 189. 2. In September 1988, a federal grand jury returned an indictment charging that petitioner "obtain(ed) property in the form of cash payments * * * not due either him or his office, directly or indirectly, from foreign doctors holding temporary permits, with their consent, induced under the color of official right." J.A. 13. In Counts 1 through 5, the indictment charged each of the five payments to petitioner as separate Hobbs Act violations. Count 6 charged petitioner with filing a false income tax return for 1984 because he had failed to report the 1984 payments as personal income. J.A. 14-15. a. At trial, the government's theory of prosecution, as set forth in its opening statement and closing arguments, was that the payments were personal payoffs that the doctors had made to ensure petitioner's continued support of legislation favorable to them. Tr. 106, 112, 115, 1113, 1129. The initial theory of the defense, as set forth in defense counsel's opening statement, was that petitioner had never received any payments. Defense counsel claimed that the evidence "will militate against any possible inference that (petitioner) asked for, induced, or received any money from these doctors." Tr. 6. /3/ Counsel further told the jury that petitioner "needs 5 or 6 hundred dollars or 4,000 dollars like he would need the Hong Kong flu. He doesn't need that money, we will show you, and didn't ask for it and didn't receive it." Tr. 7. During trial, the defense sought to impeach Vandergrift's testimony by suggesting he had never delivered any money to petitioner, but instead had pocketed it himself with the intention of claiming it as a lobbying expense for the Association. Tr. 253, 255; see Tr. 304. In this connection, defense counsel first suggested that petitioner had never asked Vandergrift for money. If petitioner had needed a campaign contribution from the doctors, counsel suggested, petitioner would have called them directly. Defense counsel asked Vandergrift why petitioner "would need you to intercede with a group that he had connected you with?" Tr. 234. In the same vein, defense counsel later sought to establish that Dr. Manuel had no way of knowing whether Vandergrift gave petitioner the $900 payment of June 1, 1985. Tr. 351. The defense called Conrad Cabauatan, who testified that he did not recall making any payment with Vandergrift or ever having met petitioner's grandnephew. Tr. 884-886. The defense also called petitioner's grandnephew, David McCormick, who denied ever receiving anything from Vandergrift. Tr. 1014-1015. In addition, the defense sought to develop evidence respecting petitioner's substantial net worth in support of its claim that petitioner had no motive to take any money. Tr. 535-544, 937. That line of defense was weakened substantially when Dr. Manuel testified that he personally gave petitioner cash on three occasions. By the time defense counsel made his closing argument, the theory of the defense had shifted entirely. In his closing argument, defense counsel did not contest petitioner's receipt of the money, but claimed that the money was given and received as campaign contributions. As such, he argued, the payments could not violate the Hobbs act unless they were coerced or were made in exchange for a specific quid pro quo. Tr. 1130-1157. In rebuttal argument, the government reiterated its theory that petitioner had "receive(d) cash payments for doing his job, that's the crime that he is charged with." Tr. 1161; see also Tr. 1170. The government noted the abrupt change in the defense strategy, Tr. 1164, and argued that the evidence refuted the claim that the payments were made or received as campaign contributions, Tr. 1164-1170. b. Both in the initial jury instructions, J.A. 16-22, and in the instructions given after the jury sought further guidance, J.A. 27-34, the district court comprehensively instructed the jury on the elements of a Hobbs Act violation. The court instructed that in order to convict, the jury had to find that petitioner "induced a cash payment from foreign doctors, as alleged in each count," that petitioner "did so knowingly and willfully by extortion," and that in doing so he "affected or attempted to affect interstate commerce." J.A. 17, 28. The statute defines "extortion" as "the obtaining of property from another, with his consent, induced * * * under color of official right," 18 U.S.C. 1951(b)(2), and the court so instructed the jury, J.A. 29; see J.A. 17. The court went on to explain the terms "inducement" and "under color of official right" in detail, and made clear that petitioner could not be convicted for receiving campaign contributions. With respect to "inducement," the court instructed that "inducement can be in the form of a demand, or in a more subtle form such as custom or expectation such as might have been communicated by the nature of the defendant's prior conduct in his office, if any." J.A. 30; see J.A. 18. The jury was told that it could "take into account all the surrounding circumstances, including any words spoken or actions of the defendant," in determining whether petitioner had induced the payments. J.A. 29; see J.A. 18. The court defined "under color of official right" to mean "the obtaining of money by a public official when the money obtained was not lawfully due and owing to him or his office." J.A. 30; see J.A. 18-19. The jury was further instructed: "If the public official knows the motivation of the victim to make any payment focuses on the public official's office, and money is obtained by the public official which was not lawfully due and owing to him or the office he represented, or which he was not otherwise lawfully entitled to receive, that is sufficient to satisfy the government's burden of showing a misuse of office and extortion under color of official right." J.A. 31; see J.A. 19. The court added that "(a) claim that a public official's actions would have been the same whether or not he received the alleged payment is * * * irrelevant and * * * it is not necessary that the government prove that the defendant committed or promised to commit a quid pro quo." J.A. 32; see J.A. 21-22. The court also instructed the jury that the alleged Hobbs Act violation is a "specific intent" crime, which requires that "the government must prove beyond a reasonable doubt that the defendant knowingly did an act which the law forbids, purposely intending to violate the law." Tr. 1191. The jury was instructed that "the specific intent requirement permeates every element of the offense, and is to be applied by you with respect to each count independently and separately." /4/ Tr. 1192. With respect to the defense theory that the payments were campaign contributions, not personal payoffs, the court instructed that "extortion does not occur where one who is a public official receives a legitimate gift or a voluntary political contribution even though the political contribution may have been made in cash in violation of local law." J.A. 30. The court further explained that petitioner could not be convicted simply for soliciting and accepting campaign contributions: It is not illegal, in and of itself, for an elected legislator to solicit or accept campaign contributions on behalf of himself or other legislators from individuals who have a special interest in pending legislation. * * * Many public officials in this country receive political contributions from individuals who, the official knows, are motivated by a general gratitude toward him because of his position on certain issues important to them, or even in the hope that the goodwill generated by such contributions will make the official more receptive to their cause. The mere solicitation or receipt of such political contributions is not of itself illegal. J.A. 33; see J.A. 20-21. The court summarized this instruction by stating: "It would not be illegal, in and of itself, for Mr. McCormick to solicit or accept political contributions from foreign doctors who would benefit from this legislation." J.A. 33-34. In the instructions with respect to the tax fraud offense, the court reiterated the requirement that the jury find that the cash payments were not received by petitioner as campaign contributions. The court first instructed the jury that "(w)here a political gift is received by an individual or a political organization and it is held or used for present or future expenses of a political campaign or for similar purposes, it is not taxable income to the recipient." J.A. 37. The court then made clear that petitioner could not be convicted of tax fraud if he had used the money for his campaign or even to reimburse himself for campaign expenditures. The court instructed the jury that the payments would constitute nontaxable political contributions if they had been "utilized for generally recognized campaign expenses, regardless of when such expenses were incurred," or "used to reimburse the political candidate for out-of-pocket campaign expenses paid by him during a current campaign, or, if he is not currently campaigning, during his last previous campaign." J.A. 37. Furthermore, the court made clear that the mere violation of a local campaign finance law did not give rise to liability for tax fraud: "In determining whether a particular payment represents a nontaxable political contribution, it does not matter whether or not the payment may have violated some state election law, although the fact that the payment is found to have violated some local election law may be taken into account for such value as it may have, if any, on the issue of intent." J.A. 37-38. The jury convicted petitioner on the income tax charge and on the Hobbs Act charge involving the initial June 1, 1984, payment of $900. It failed to reach a verdict on the other four Hobbs Act counts. 3. The court of appeals affirmed. Pet. App. 1-22. It concluded that the jury instructions respecting when a personal payoff to a public official violates the Hobbs Act were correct. Id. at 9-10. The court then recognized that "(t)his case revolves primarily around the question of whether the money (petitioner) received was the result of extortion or only an illegal campaign contribution. * * * If the money was a voluntary campaign contribution, then (petitioner) is guilty only of violating state election laws." Id. at 11. The court of appeals explained that "when an official does not intend a payment to be a campaign contribution, a jury should be allowed to infer from the circumstances surrounding the payment that it is in fact a payoff violating the Hobbs Act." Pet. App. 18. In this case, the court noted, petitioner knew that "his continued support was essential for (the temporary-permit) doctors to receive a permanent license," and in light of that knowledge, told their lobbyist that he had not 'heard from' the doctors." Id. at 19. Although petitioner, Vandergrift, and Dr. Manuel "all knew that cash campaign contributions greater than fifty dollars were illegal in West Virginia," the doctors delivered "one hundred dollar bills placed in sealed envelopes * * * to (petitioner) personally at his office." Ibid. The court held that the "evidence supports the conclusion that the money was never intended by any of the parties to be a campaign contribution." Id. at 20. Accordingly, it affirmed the Hobbs Act conviction. Ibid. Petitioner's only defense to the tax fraud charge was that the money was a contribution to his reelection campaign. Because the court of appeals concluded that the jury's contrary finding was supported by the evidence, the court affirmed petitioner's conviction on that count. Pet. App. 20-22. SUMMARY OF ARGUMENT The jury in this case found that petitioner accepted a personal payoff, not a campaign contribution, from the temporary-permit doctors. That pivotal finding provides the basis for affirmance of petitioner's conviction both under the Hobbs Act and the federal tax laws. In light of that finding, it is not necessary for this Court to address the difficult question of when the solicitation or acceptance of a campaign contribution constitutes extortion under color of official right. I. The Hobbs Act prohibits a public official from inducing a payoff for doing his job. The common law prohibition against extortion "under color or official right" long prohibited such acts, and in enacting the Hobbs Act Congress adopted the conventional common law definition of extortion. Congress borrowed most directly from New York's extortion statute, which broadly defined extortion under color of official right to include receipt by a public official of compensation (other than his salary) for his official service. That is what the jury found occurred here. A. Petitioner argues that extortion under color of official right should be narrowly limited to cases in which an official pretends that he has the right to a fee. This proposed limitation is contrary to the common law origins of the Hobbs Act, the unanimous construction given the Hobbs Act by the courts of appeals, and this Court's construction of similar language in other statutes. Moreover, the unprecedented narrowing of the statute that petitioner proposes would convert the crime of extortion under color of official right into what amounts to a false pretenses offense. B. Petitioner also argues that the Hobbs Act does not prohibit the inducement of campaign contributions in the absence of proof of a threat or a promise of a specific quid pro quo. We agree with that general statement of the law. Under West Virginia law, as under state and federal law generally, campaign contributions are lawful if they are not coerced or made as part of an explicit agreement by the public official to confer some benefit on the contributor. The solicitation of a campaign contribution therefore is ordinarily not "wrongful" within the meaning of the Hobbs Act, which prohibits the obtaining of funds only by "wrongful" means. Outside the protected area of campaign financing, however, different principles apply. The Hobbs Act reaches the inducement of a personal payoff when the public official knows that the payment is made on account of his office, since the inducement and making of personal payoffs to public officials is universally condemned as "wrongful." As the court of appeals held, the facts adduced at trial show that petitioner intended to obtain what he received -- a cash payoff, not a campaign contribution. And the instructions made it abundantly clear that the jury did not convict petitioner for soliciting a campaign contribution. Thus, even though petitioner never explicitly told the doctors that his support for their attempt to obtain permanent licenses was contingent on their making a payoff to him, it was sufficient that he induced the payoff knowing that the doctors were likely to pay him in order to secure, retain, and reward his support for their cause. II. Petitioner argues that his tax fraud conviction stands or falls with the Hobbs Act count. That is not necessarily so. Even if the Court accepts one of petitioner's legal arguments and reverses his Hobbs Act conviction, that would not affect the correctness of the jury's conclusion that petitioner obtained a $900 payment that was not a campaign contribution and that he failed to report it as income. Only if this Court accepts petitioner's factual contention that he was convicted for receiving a campaign contribution -- a contention that was rejected by the jury and the court of appeals -- should his tax fraud conviction be reversed. ARGUMENT I. PETITIONER VIOLATED THE HOBBS ACT BY INDUCING A PERSONAL PAYOFF UNDER COLOR OF OFFICIAL RIGHT Petitioner has briefed this case as if it were established that the payments the doctors made to him were campaign contributions rather than personal payoffs. /5/ The jury, however, rejected the "campaign contributions" defense and instead determined that petitioner was personally paid off for his efforts on behalf of the doctors. In light of the instructions given by the court, the jury's verdict makes it very clear that petitioner was not convicted for receiving campaign contributions. The evidence at trial fully supported the jury's conclusion that petitioner received a payoff; in view of petitioner's mid-trial switch of theories, it is not surprising that the jury regarded the benign characterization of the cash payments as "campaign contributions" to be a transparent effort to give an appearance of legitimacy to payments that were actually personal payoffs. Because the jury was properly instructed and permissibly found that the payment for which petitioner was convicted was not a campaign contribution, much of petitioner's argument in this Court is based on an erroneous premise. For the same reason, in light of the jury's finding, it is unnecessary for this Court to address the question whether and in what manner the Hobbs Act applies to bona fide campaign contributions. A. The Hobbs Act Prohibits An Elected Official From Inducing A Personal Payoff In Return For Doing His Job The Hobbs Act prohibits extortion, which it defines as "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." 18 U.S.C. 1951(b)(2). Petitioner was charged and convicted of extortion under color of official right. That offense has a long history, dating back to 1275. Lindgren, The Elusive Distinction Between Bribery and Extortion: From the Common Law to the Hobbs Act, 35 U.C.L.A. L. Rev. 815, 841 (1988). In fact, while "extortion" today evokes the image of racketeering and the use of threats of force by private individuals, at common law extortion was a crime that could be committed only by a public official. 2 W. LaFave & A. Scott, Substantive Criminal Law 458 (1986); United States v. Harding, 563 F.2d 299, 304 (6th Cir. 1977), cert. denied, 434 U.S. 1062 (1978). The federal crime of extorting property "under color of official right" was first enacted as part of Section 2(b) of the Anti-Racketeering Act of 1934, Ch. 569, Section 2(b), 48 Stat. 979. /6/ In 1946, the pertinent language was incorporated, unchanged, into the Hobbs Act, Ch. 537, 60 Stat. 420. See United States v. Emmons, 410 U.S. 396, 401-408 (1973). This Court recognized in Emmons that the Hobbs act "incorporate(d) New York's conventional definition of extortion -- 'the obtaining of property from another . . . with his consent, induced by a wrongful use of force or fear, or under color of official right.' N.Y. Penal Law Section 850 (1909)." 410 U.S. at 406 n.16. /7/ In the 1909 New York Penal Law, which was in effect when the Anti-Racketeering Act and the Hobbs Act were enacted, extortion under color of official right included the receipt by a "public officer" of "compensation for his official service" where no compensation is due. N.Y. Penal Law Section 855 (Ingram 1909); Lindgren, supra, 35 U.C.L.A. L. Rev. at 898. /8/ Thus, extortion under color of official right was understood in New York (and therefore presumably by the Congress that adopted New York law as the basis for the Hobbs Act) to apply to the inducement of payoffs by an elected official in return for his services. In this respect, the New York law, and derivatively the Hobbs Act, was fully consistent with the long common law history of punishing public officials for extortion when they received -- whether by coercion, false pretenses, or bribery -- fees to which they were not entitled. See Lindgren, supra, 35 U.C.L.A. L. Rev. at 837-882. /9/ Petitioner acknowledges that "the common law offense of extortion * * * included some forms of bribery." Br. 26. He nevertheless contends that the proscription of extortion under color of official right is limited to cases in which an official pretends that he has a right to the money he obtains. Br. 24, 27. /10/ The adoption of this contention would lead to a radical narrowing of the statute's reach. Under petitioner's theory, a public official would commit the crime of extortion under color of official right only if he claimed that a fee was required by law when in fact no such fee was due. Under this theory, a public official would not commit extortion under color of official right when demanding a payoff in exchange for performing his job, even if there was an explicit demand for payment or a clear promise of a quid pro quo, unless he falsely represented that the payment was legally required. Petitioner's sweeping contention is inconsistent with the meaning of the crime of extortion under color of official right at common law and under the New York extortion statute. There is no indication that the common law courts limited the concept of extortion to cases in which public officials falsely represented that a fee was legally required. /11/ And the New York legislature, following the conventional approach, defined extortion broadly to include various acts by which a public official improperly obtained "compensation for his official service." N.Y. Penal Law Section 855 (Ingram 1909); see note 8, supra. That definition was not in any way limited to cases of misrepresentation or fraud by the public official, but clearly encompassed cases in which the public official simply demanded compensation as a condition of doing his job. /12/ The limitation suggested by petitioner is also contrary to the uniform construction of the Hobbs Act by the courts of appeals. The issue of the proper construction of the "color of official right" clause of the Hobbs Act has been litigated extensively in the courts of appeals, and every circuit that has addressed the issue has rejected the view that extortion under color of official right covers only the collection of fees under the pretense that the fees are owed. /13/ Furthermore, petitioner's construction of the phrase "under color of official right" conflicts sharply with this Court's construction of similar language in other familiar statutory contexts, where the requirement that action be "under color of state law" has been interpreted to include "(m)isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." United States v. Classic, 313 U.S. 299, 326 (1941) (interpreting the predecessor to 18 U.S.C. 242); Monroe v. Pape, 365 U.S. 167, 172 (1961) (interpreting 42 U.S.C. 1983). As the courts of appeals have held, exactly the same interpretation is appropriate for the phrase "under color of official right": it applies to the misuse of official power to obtain things of value, even if there is no pretense of entitlement on the part of the official. Petitioner's theory, if adopted, would produce a striking anomaly in the federal law of extortion. An official would commit extortion under color of official right if the victim paid an excessive fee believing it was due, but not if the victim was flatly told that he must make a payoff in order to obtain official action. If that were the law, "extortion under color of official right" would have little in common with the ordinary concept of extortion, but instead would be converted into a type of fraud or false pretenses offense. Extortion is ordinarily understood to mean the act of obtaining money by consent, where the consent is induced by a threat of some kind of injury in the future. See W. LaFave & A. Scott, supra, Section 8.12. Under petitioner's view of the crime of extortion under color of official right, however, the victim's consent would be the product not of a threat, but of a misrepresentation. As Professor Lindgren has pointed out, "(l)imiting official extortion only to cases of false pretenses and excluding coercion would not fit almost anyone's notion of the correct scope of official extortion." Lindgren, 35 U.S.L.A. L. Rev. at 895. In support of his contention, petitioner relies primarily on the absence of legislative history indicating any intention to reach other sorts of corruption by local officials. Br. 28. The scope of a statute, however, is not limited to the specific examples of its anticipated application that are mentioned in the legislative history. Pittston Coal Group v. Sebben, 488 U.S. 105, 115 (1988). /14/ The language chosen by Congress -- "extortion * * * under color of official right" -- indicates that Congress intended to adopt a broad prohibition against extortionate behavior by public officials, /15/ and its selection of the language of the New York statute indicates an intention to adopt the conventional meaning of the offense, which New York law had adopted. Petitioner also relies heavily on a 1943 statement that Representative Hobbs made on the floor of the House, in which he said that "'(c)olor of official right' means absence of a right but pretended assertion of right." Br. 20 (quoting 89 Cong. Rec. 3228 (1943)) (emphasis omitted). Representative Hobbs' statement, however, was made in response to the concern expressed by another congressman that the Act "would apply to an initiation fee in a labor union." Ibid. (statement of Rep. Day). In context, it appears that Representative Hobbs was simply assuring the other congressman that the "color of official right" language in the Act applied only to public officials or to persons claiming to be public officials, and did not apply to private persons such as union officers. His statement does not justify limiting the reach of the Act so that it is inapplicable to cases in which a public official demands a personal payoff to do his job. /16/ B. Petitioner Was Convicted Of Obtaining A Personal Payoff, Not A Campaign Contribution The remainder of petitioner's argument in this Court, like the whole of his argument in the court of appeals, assumes that the Hobbs Act applies to public officials other than in situations where an official falsely pretends that a fee is due. Petitioner's further contention is that the Act does not prohibit the solicitation of "campaign contributions, absent proof of a quid pro quo." Br. 35 (argument heading). The flaw in petitioner's argument, however, is that he was not convicted for receiving a campaign contribution i.e., funds that are intended to be used to defray campaign expenses. The jury concluded that he received a personal payoff, not a campaign contribution, and the evidence supports that conclusion. In that setting, it is not necessary for the government to show that the payment was the product of either an explicit threat or a quid pro quo. Instead, where an official is shown to have received a personal payoff, it is sufficient that the evidence show that he induced the payoff and that the payoff was made on account of his official position, both of which were proved in this case. The evidence that petitioner was seeking a payoff rather than a bona fide campaign contribution is compelling. Instead of contacting Dr. Manuel directly, petitioner spoke to Vandergrift, who had previously used the Association's funds to pay a large hotel bill owed by petitioner. Tr. 1034-1036. Going through Vandergrift was a curious way to seek a campaign contribution, since it was petitioner who had introduced Vandergrift to Dr. Manuel. Because Vandergrift's role as intermediary between the doctors and petitioner related exclusively to the temporary-permit legislation, making a solicitation through Vandergrift was especially likely to send the message that a payment was expected for petitioner's support of the doctors' cause. The manner in which petitioner conveyed his demand for money and handled the $900 June 1, 1985, payment after it was made gave further indication that he was seeking a payoff, albeit under the guise of requesting a campaign contribution. Speaking in a rough tone, Tr. 282, petitioner told Vandergrift that "he had put a couple of thousand dollars out of his pocket" for his campaign, Tr. 168. Vandergrift deduced that he should "replace it in kind," Tr. 210, even though the evidence indicated that all of the parties to the transaction knew that cash campaign contributions of more than $50 were illegal, see Pet. App. 19. When Vandergrift delivered the nine $100 bills to petitioner, petitioner did not act surprised and he did not ask for a check instead. None of the parties reported the transaction as a campaign contribution. C.A. App. 1076-1080, 1102-1114. /17/ The timing of the payments is especially revealing. The payments continued to be made long after the election was over, and the last payment was made only two weeks after the favorable legislation was enacted with petitioner's support. The timing strongly suggests that the payments were tied to the legislation, not the campaign. Finally, after one of the payments had been made, petitioner made the highly revealing remark to Vandergrift that "the doctors had taken good care of him and the debt was paid." Tr. 189. Thus, the evidence supports the conclusion that all the parties to the payment -- petitioner, Vandergrift, and the doctors -- regarded the $900 as a payoff, not a campaign contribution, and that the references to the campaign were merely window-dressing to give the payoff the appearance of legitimacy. /18/ The jury was properly instructed that it could not convict petitioner if it concluded that the $900 payment was a campaign contribution. The jury was told, for example, that "(m)any public officials in this country receive political contributions from individuals who, the official knows, are motivated by a general gratitude toward him because of his position on certain issues important to them, or even in the hope that the goodwill generated by such contributions will make the official more receptive to their cause," and that "(t)he mere solicitation or receipt of such political contributions is not of itself illegal." J.A. 33. The instructions on the tax fraud count provided that petitioner could not be convicted if he had used the money "for generally recognized campaign expenses" or even if the money had been used "to reimburse the political candidate for out-of-pocket campaign expenses." J.A. 37. The jury concluded that although petitioner mentioned during his conversation with Vandergrift that he had incurred campaign expenses, he was seeking a personal payoff. Petitioner states, Br. 49 n.16, that his campaign finance reports show that he contributed more than $3,000 of his own money to his 1984 campaign. But the evidence at trial showed that petitioner received more than $5,000 from the doctors, well in excess of the amount of his own funds he claimed to have spent on his campaign. Yet even if the amount paid by the doctors had been less than the amount petitioner spent, that would not render the doctors' payment a campaign contribution as long as neither side treated them as such. Any other conclusion would allow any elected official who contributed to his campaign to justify a payoff simply by calling it a reimbursement for personal campaign expenditures. /19/ If this case had involved a campaign contribution rather than a personal payoff, it would have been necessary for the government to prove that the contribution was obtained by a threat to take unfavorable action or a specific promise to take favorable action, i.e., a quid pro quo. See, e.g., United States v. Biaggi, 909 F.2d 662, 695 (2d Cir. 1990) (an elected official can be convicted under the Hobbs Act for extorting a campaign contribution only if the official "directly * * * linked the contribution to specific official action to be taken by the official"); United States v. Haimowitz, 725 F.2d 1561, 1573 (11th Cir.), cert. denied, 469 U.S. 1072 (1984); United States v. Dozier, 672 F.2d 531, 537 (5th Cir.), cert. denied, 459 U.S. 943 (1982); United States v. Cerilli, 603 F.2d 415, 418-421 (3d Cir. 1979), cert. denied, 444 U.S. 1043 (1980). The Department of Justice has adopted that position as a policy matter, stating that "campaign contributions will not be authorized as the subject of a Hobbs Act prosecution unless they can be proven to have been given in return for the performance of or abstaining from an official act; otherwise any campaign contribution might constitute a violation." Department of Justice, United States Attorneys' Manual (P-H) Section 9-85A.306, at 9-1938.134 (Supp. 1988-2). The statutory basis for this special treatment of campaign contributions is the requirement that the inducement of a payment under the Hobbs Act be "wrongful," 18 U.S.C. 1951(b)(2), a requirement that applies to each of the listed means of obtaining property. See United States v. Enmons, 410 U.S. at 399 & n.2; United States v. French, 628 F.2d 1069, 1074 (8th Cir.) ("It is the wrongful purpose of the taking under color of official right that makes appellee's conduct extortion under the Hobbs Act."), cert. denied, 449 U.S. 956 (1980). It is lawful in West Virginia, as in every other State and under federal law, for a public official to solicit campaign contributions, see W. Va. Code Sections 3-8-1 through 3-8-13 (1990); Buckley v. Valeo, 424 U.S. 1, 21 (1976), United States v. Brewster, 506 F.2d 62, 67 (D.C. Cir. 1974), but it is universally unlawful for such contributions to be induced by threats or promises relating to official action. See W. Va. Code Section 3-8-12(e) (1990). A campaign contribution is therefore "wrongful," and thus subject to prosecution under the Hobbs Act, only where the connection between the contribution and the candidate's official acts is clearly conditional. A candidate is, of course, free to point out to potential campaign contributors that he favors their position on an important issue and to advise them that a contribution to his campaign is therefore in their best interest. But a candidate cannot sell his vote by stating explicitly that his position on a particular issue will depend on whether he receives a suitable campaign contribution. /20/ Where, as in this case, no campaign contribution is at issue, it is not necessary for the government to prove that the public official offered a quid pro quo in exchange for payment made to him. That is because the demand for and receipt of a personal payoff in return for performing official services is always wrong, so that the concern for distinguishing between legitimate campaigning and vote-selling does not apply. In United States v. Dozier, 672 F.2d 531, 537 (5th Cir. 1982), the court recognized that "(d)emands for money by an unelected official may constitute extortion per se." With respect to personal payoffs, an elected official is no different from an unelected official, for in that setting the act of receiving payment for an official act is invariably wrongful. /21/ Contrary to petitioner's contention, no error was committed because the jury was told that the evidence did not have to show that petitioner "committed or promised to commit a quid pro quo," J.A. 22, 32, in order to convict. Petitioner suggests that the jury merely had to find that he received the money from the doctors, but the instructions showed that the jury also had to conclude (1) that he "induced" the payoff, J.A. 18, 29; (2) that the doctors paid petitioner "with the expectation that (petitioner) would extend to (the doctors) some benefit or refrain from some harmful action, and (petitioner) accepted the money knowing it was being transferred to him with that expectation," J.A. 17-18; and (3) that the money was not paid as a "voluntary political contribution," J.A. 30. In context, it is clear that the instruction stating that the jury did not have to find that petitioner promised a quid pro quo simply meant that if the jury found that the payments to petitioner were personal payoffs, rather than bona fide campaign contributions, it was unnecessary for the government to prove that petitioner expressly conditioned his support for the doctors on the receipt of a payment from them. In sum, what is required in a case involving a personal payoff is what the district court instructed the jury it had to find in order to convict petitioner -- proof that the payoff was induced rather than volunteered, J.A. 30; see J.A. 18, and proof that the official knew "the motivation of the victim to make any payment focuses on the public official's office," J.A. 31; see J.A. 19. /22/ As we have noted, the evidence in this case showed that petitioner demanded money from the doctors, and it was clear that petitioner did so because he knew the doctors wanted to secure, retain, and reward his official support for their efforts to obtain permanent medical licenses. The evidence further showed that petitioner "delivered" for the temporary-permit doctors -- he asked the West Virginia Board of Medicine not to oppose legislation favorable to the Association, Tr. 321-322, 387-388, he sponsored the legislation, Tr. 180-183, 325-326, and he badgered the Board to ensure that some of the doctors who could not qualify even under the new law obtained licenses, Tr. 186-187, 412-418, 592. Thus, petitioner performed services of the sort the doctors expected when they made their payments to him, which supports the jury's conclusion that the parties regarded the funds as a payoff for services rather than a contribution to a campaign. Because petitioner demanded a personal payoff, knowing that the doctors were likely to accede to the demand because of his office, he was properly convicted of extortion under color of official right. II. PETITIONER'S TAX FRAUD CONVICTION IS VALID EVEN IF HIS HOBBS ACT CONVICTION IS OVERTURNED The court of appeals affirmed petitioner's tax fraud conviction because, in affirming his extortion conviction, it had rejected his contention that he merely received a campaign contribution from the doctors. Pet. App. 20-21. As the court of appeals recognized, if petitioner's Hobbs Act conviction is affirmed, it necessarily follows that his tax fraud conviction must also be affirmed. If this Court reverses the conviction on the Hobbs Act count, however, it does not follow that the Court must also reverse the conviction on the tax fraud count. Under petitioner's broad argument, extortion under color of official right prohibits an official only from collecting a fee that he pretends is due. Acceptance of that far-reaching view would require that petitioner's Hobbs Act conviction be reversed. But even if extortion under color of official right does not cover the inducement of a personal payoff, the federal tax laws nevertheless require that officials report any income received through such schemes. Since it is now undisputed that petitioner received $900 from the doctors and did not report it as income, he committed tax fraud, and nothing about petitioner's broad argument undermines that conclusion. Under petitioner's narrower contention, he should not have been convicted of a Hobbs Act violation because the government failed to prove a sufficiently explicit quid pro quo agreement by petitioner to perform official acts in exchange for the payment. But if petitioner's Hobbs Act conviction is reversed on that ground, that would not change the fact that he received the payment. Moreover, the jury concluded that petitioner received it as a personal payoff, since the jury was instructed that if the payment was "held or used for present or future expenses of a political campaign or for similar purposes, it is not taxable income to the recipient," J.A. 37. /23/ Accordingly, petitioner was required to report the $900 payment as income whether or not it was received as part of a quid pro quo arrangement prohibited by the Hobbs Act. Only if this Court concludes that the $900 was received as a campaign contribution would it follow that his tax fraud conviction should be reversed. As the jury was instructed, if the payment "constituted voluntary political contributions, it was not taxable income and Mr. McCormick's failure to report it on his tax return was not illegal." J.A. 36. But there is no basis for the Court to reject the jury's factual finding that the money was a personal payoff -- a finding which the court of appeals held was supported by the evidence, Pet. App. 20 -- and overturn petitioner's tax fraud conviction. CONCLUSION The judgment of the court of appeals should be affirmed. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General WILLIAM C. BRYSON Deputy Solicitor General CHRISTOPHER J. WRIGHT Assistant to the Solicitor General RICHARD A. FRIEDMAN Attorney DECEMBER 1990 /1/ On each occasion on which the Association gave petitioner a cash payment, Dr. Manuel wrote an Association check with a coded notation indicating that the check was for petitioner. The check would then be cashed, and the cash would be placed in an envelope to be given to petitioner. Tr. 318-326. Dr. Manuel testified that the last three payments were for petitioner to distribute to other politicians, Tr. 323-324, 328-329, but there was no evidence that petitioner gave the money to anyone else, see Tr. 1167-1168. /2/ The evidence included petitioner's campaign financial statements, signed and sworn to by petitioner, which contained a notice to candidates that contributions of more than $50 from one contributor in cash, rather than by check or money order, were improper and that all contributions, regardless of the amount, had to be reported. C.A. App. 1102, 1106, 1110, 1111. /3/ Because the defense opening statement was transcribed out of the usual order (Tr. 116), it is included at Tr. 2-13 (and may also be found at C.A. App. 74-86). /4/ However, the jury was instructed that it need not find specific intent respecting the effect of petitioner's actions on interstate commerce. J.A. 22, 32. That instruction was correct. See, e.g., United States v. Daley, 564 F.2d 645, 649 (2d Cir. 1977), cert. denied, 435 U.S. 933 (1978). /5/ Each of the argument headings in petitioner's brief contends that his convictions for receiving "campaign contributions" must be reversed. /6/ Section 2(b) of the Anti-Racketeering Act of 1934 proscribed "(o)btain(ing) the property of another, with his consent, induced by wrongful use of force or fear, or under color of official right." /7/ In support of that point, the Court cited the following portions of the legislative history of the Hobbs Act: 91 Cong. Rec. 11,842 (1945), (remarks of Rep. Walter); id. at 11,843 (remarks of Rep. Michener); id. at 11,900 (remarks of Rep. Hancock); ibid. (remarks of Rep. Hobbs); id. at 11,906 (remarks of Rep. Robison). /8/ New York Penal Law Section 855 (Ingram 1909) provided: A public officer who asks, or receives, or agrees to receive a fee or other compensation for his official service: 1. In excess of the fee or compensation allowed to him by statute therefor; or 2. Where no fee or compensation is allowed to him by statute therefor; Commits extortion * * * . /9/ As this Court has noted, "where Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed." Morissette v. United States, 342 U.S. 246, 263 (1952); see Taylor v. United States, 110 S. Ct. 2143, 2155 (1990). /10/ Petitioner did not make this argument in his petition for a writ of certiorari or in the courts below. /11/ Professor Lindgren notes dozens of English cases in which officials were convicted of extortion for behavior that did not involve the collection of a fee under the pretense that it was due. For example, in a series of cases decided in 1298, officials were convicted of extortion for accepting payments in lieu of jury duty from potential jurors who did not want to serve. See 35 U.C.L.A. L. Rev. at 855. And in the 1700s, an official committed extortion by accepting 42 shillings in return for not taking a defendant arrested for assault to prison. Id. at 857. In addition, the New York courts affirmed the extortion conviction of a forensic specialist who offered to generate unfavorable evidence against the driver in an automobile accident in return for a payoff. People v. Hansen, 241 N.Y. 532, 150 N.E. 542, 211 N.Y.S.2d 861 (1925), aff'g 211 A.D. 861 (1924). Obviously, there was no pretense that the fee was owed to the forensic specialist. /12/ In his dissenting opinion in United States v. Cerilli, 603 F.2d 415, 434 (3d Cir. 1979), cert. denied, 444 U.S. 1043 (1980), from which petitioner quotes at length (Br. 26-27), Judge Aldisert failed to note New York's entire statutory definition of extortion and thus interpreted the New York statute as being narrower than it was. /13/ See, e.g., United States v. Hathaway, 534 F.2d 386, 392-394 (1st Cir.), cert. denied, 429 U.S. 819 (1976); United States v. Trotta, 525 F.2d 1096, 1099-1100 (2d Cir. 1975), cert. denied, 425 U.S. 971 (1976); United States v. Kenny, 462 F.2d 1205, 1228-1229 (3d Cir.), cert. denied, 409 U.S. 914 (1972); United States v. Price, 507 F.2d 1349, 1350 (4th Cir. 1974); United States v. Williams, 621 F.2d 123, 125-126 (5th Cir. 1980), cert. denied, 450 U.S. 919 (1981); United States v. Harding, 563 F.2d at 307; United States v. Braasch, 505 F.2d 139, 151 (7th Cir. 1974), cert. denied, 421 U.S. 910 (1975); United States v. Brown, 540 F.2d 364, 372-373 (8th Cir. 1976); United States v. McClelland, 731 F.2d 1438, 1439 (9th Cir. 1984), cert. denied, 472 U.S. 1010 (1985); United States v. Hall, 536 F.2d 313, 320-321 (10th Cir.), cert. denied, 429 U.S. 919 (1976); United States v. Swift, 732 F.2d 878, 879-880 (11th Cir. 1984), cert. denied, 469 U.S. 1158 (1985). /14/ Petitioner begins his argument by stating that the "under color of official right" clause is hardly mentioned in the legislative history of the Hobbs Act, which focused on labor racketeering. Br. 14-15. There is, of course, no merit to petitioner's suggestion that despite its broad language the Act should be limited to labor racketeering simply because the legislative debates focused on that topic. /15/ Relying on United States v. Bass, 404 U.S. 336, 349-350 (1971), petitioner notes (Br. 29-31) that a "clear statement" is necessary before this Court will conclude that Congress has made a federal crime of conduct traditionally regulated by the States. The textual statement "under color of official right" satisfies that requirement, particularly when coupled with the broad jurisdictional reach of the statute. See United States v. Culbert, 435 U.S. 371, 373 (1978) ("(T)he statutory language sweeps within it all persons who have 'in any way or degree . . . affect(ed) commerce . . . by robbery or extortion.' 18 U.S.C. Section 1951(a) (1976 ed.). These words do not lend themselves to restrictive interpretation; as we have recognized, they 'manifest() a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery or physical violence.' Stirone v. United States, 361 U.S. 212, 215 (1960)."). /16/ Petitioner also suggests (Br. 33 n.13) that proof of "coercion" -- by which he apparently means evidence of "force, violence, or fear" -- should be required in prosecutions for extortion under color of official right. As the courts of appeals have unanimously agreed, however, the Hobbs Act is phrased in the disjunctive, and proscribes extortion by either "wrongful use of actual or threatened force, violence, or fear" or "under color of official right." In a dissenting opinion in United States v. Cerilli, 603 F.2d at 429, on which petitioner relies, Judge Aldisert "concede(d) that a purely semantic approach to the statutory language can substantiate a decision that no duress need be proved," but thought that a literal interpretation would have prevailed only "(i)n an earlier era of our jurisprudential tradition." The Criminal Division of the Department of Justice once erroneously interpreted the statute in the same manner. See United States Dep't of Justice, Labor Racketeering Manual 18-19 (1971). We believe that interpreting the disjunctive language in the statute to provide independent grounds for liability is entirely sensible and cannot be dismissed simply by the pejorative use of the term "literal interpretation" and the suggestion that such an approach to statutory construction is outmoded. /17/ As the district court instructed the jury, J.A. 37-38, the fact that a public official violated some state campaign financing law does not convert his solicitation of campaign contributions into the solicitation of a payoff. The violation of a state law governing campaign financing may be relevant to determining the public official's intent, but it does no ipso facto render his acceptance of funds a violation of the Hobbs Act. The court of appeals correctly noted that "(i)f the money was a voluntary campaign contribution, then (petitioner) is guilty only of violating state election laws." Pet. App. 11. /18/ Petitioner contends (Br. 4) that "the government's own theory was that the payments were intended to reimburse Mr. McCormick for expenses he had incurred in his reelection campaign." That is not so. The government's theory is and has been that petitioner "receive(d) cash payments for doing his job." Tr. 1161. Although petitioner mentioned that he had paid some money out of his own pocket in connection with his campaign when he demanded money from the doctors, we think that Vandergrift correctly ascertained that petitioner did not want a campaign contribution, but instead wanted a cash payoff. /19/ There is no merit to petitioner's contention, Br. 44, that the factors mentioned by the court of appeals as bearing on the question whether a payment was a campaign contribution or a personal payoff are unduly vague. Petitioner misunderstands the purpose of those factors. Those factors are not designed to determine "whether a political contribution violates the Hobbs Act," Pet. Br. 42, but to distinguish campaign contributions from "payments (that) were never intended to be legitimate campaign contributions," Pet. App. 17. The factors listed by the court of appeals to make that determination include such common-sense considerations as whether the payment was made in cash or by check, whether it was delivered to the official personally, and whether the payor or the official treated the payment as a campaign contribution. Ibid. Where, as here, a payment is delivered in cash directly to the elected official who does not treat the payment as a contribution to his election campaign, there is nothing unfair or surprising about concluding that the payment was not a campaign contribution, and that the official's inducement of the payment was therefore a wrongful use of his public office. /20/ Accordingly, having concluded that the evidence did not sufficiently show that an elected official had coupled a demand for a campaign contribution with a promise to perform an official act, the court in United States v. Haimowitz, supra, 725 F.2d at 1573, correctly reversed a Hobbs Act conviction. /21/ The dissenting judge in United States v. Cerilli, 603 F.2d at 437, asked if a governor "would be guilty of a Hobbs Act violation if he now were to appear at a fundraising dinner and solicit contributions for his political party" from businessmen?" The answer is no, because political contributions are different from personal payoffs. But it would be a violation for an elected official in such a situation to solicit personal payoffs rather than political contributions or to threaten to change position on an important issue in the absence of a sufficient contribution. Of course, if a particular State made it lawful for an elected official to accept campaign contributions in exchange for the performance of official duties, a Hobbs Act prosecution could not be based on such conduct, because it would not be "wrongful." But we are aware of no State in which such conduct is lawful, just as we are aware of no State in which it is lawful to use the threat of violence to obtain property; in the case of personal payoffs to public officials, as in the case of extortion by threat of violence, the element of wrongfulness will invariably be satisfied. /22/ Although the inducement in this case was quite explicit (petitioner said "he hadn't heard from the foreign physicians," and petitioner "wanted to know what (Vandergrift) was going to do about it," Tr. 167-168), it is not necessary for the government to show an explicit inducement to satisfy the requirements of the Hobbs Act. Even in the absence of an express request for payment, an inference of unlawful inducement can be drawn from factors such as the repeated acceptance of substantial benefits, see United States v. Biaggi, 909 F.2d at 669, or the acceptance of payments by a public official in a setting in which it is understood that payments are expected, United States v. Egan, 860 F.2d 904, 907 (9th Cir. 1988). A number of courts of appeals have held that the proof of inducement is sufficient as long as the public official simply accepts something of value, knowing that it has been conferred because of his office. See, e.g., United States v. Evans, 910 F.2d 790, 796-797 (11th Cir. 1990); United States v. Garner, 837 F.2d 1404, 1421-1422 (7th Cir.), cert. denied, 486 U.S. 1035 (1988); United States v. Spitler, 800 F.2d 1267, 1274-1275 (4th Cir. 1986); United States v. Jannotti, 673 F.2d 578, 594-596 (3d Cir. (en banc), cert. denied, 457 U.S. 1106 (1982); United States v. Butler, 618 F.2d 411, 417-418 (6th Cir.), cert. denied, 447 U.S. 927 (1980), and cases cited therein. It is not necessary in this case for the Court to address the question whether an inducement based on the public official's office rather than his conduct is sufficient to satisfy the statute, since the inducement in this case came directly from petitioner and was explicit. /23/ The jury was also told that if the money was "used to reimburse the candidate for out-of-pocket campaign expenses paid by him" then it was not taxable. J.A. 37.