JOHN H. EVANS, JR., PETITIONER V. UNITED STATES OF AMERICA

   No. 90-6105

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Eleventh Circuit

   Brief For The United States In Opposition

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. 1-15) is reported at
910 F.2d 790.

                             JURISDICTION

   The judgment of the court of appeals was entered on September 6,
1990.  The petition for a writ of certiorari was filed on October 29,
1990.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTION PRESENTED

   Whether a public official may be convicted of extortion under color
of official right in violation of the Hobbs Act only if the jury is
instructed that it must find that the public official initiated the
transaction that resulted in his receipt of an unlawful payoff.

                               STATEMENT

   After a jury trial in the United States District Court for the
Northern District of Georgia, petitioner, an elected County
Commissioner, was convicted of attempted 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 18 months' imprisonment for the Hobbs
Act violation and to four years' probation on the tax fraud count.
The court of appeals affirmed.

   1. In 1985, Clifford Cormany, Jr., an FBI agent, was working
undercover in the Atlanta area investigating allegations of public
corruption.  He posed as a representative of a group of real estate
investors interested in developing land in DeKalb County.  In March
1985, Agent Cormany was introduced to petitioner, an elected member of
the DeKalb County Board of Commissioners, by Albert Johnson, an
individual also under investigation.  Petitioner was told that
Cormany's investment group was looking for assistance with matters
relating to rezoning and variances.  Pet. App. 3.

   Between August 1985 and October 1986 petitioner and Agent Cormany
had a series of meetings and telephone conversations, most of which
were video-taped or audio-taped.  At the first of these meetings, in
August 1985, Cormany told petitioner that he wanted to give his
investment group a "leg up" on other developers in DeKalb County by
cultivating a close association with the public bodies that dealt with
zoning and related matters.  Petitioner agreed to arrange for Cormany
and Johnson to meet with other County Commissioners.  Pet. App. 3.

   In May 1986, Cormany and Johnson contacted petitioner and told him
that they wanted to have a plot zoned for the highest density possible
and were willing to do whatever was needed to achieve that result.
During the course of that conversation, there was a discussion of
petitioner's reelection campaign.  In response to a query from Johnson
about what size contribution would be considered "meaningful,"
petitioner replied that at a recent fundraising event contributors
were encouraged to give $1,000 apiece.  Johnson also asked whether
petitioner needed any "expense money." Petitioner stated that he had
to order a voter registration list and mailing labels in order to do a
precinct mailing.  He estimated that the registration list would cost
him about $260.  Cormany then wrote out a check to petitioner for
$300.  Petitioner used that money to buy the list and sent a thank you
note to Cormany.  Pet. App. 3-4.

   In July 1986, Cormany and Johnson met petitioner again and informed
him that they had a particular tract of land in mind for rezoning to a
higher density.  They told petitioner that expense monies would be
available for him if needed.  Petitioner recommended that Cormany and
Johnson meet with members of the County Planning Department so they
could get their rezoning application filed as soon as possible.  On
the morning of July 23, 1986, petitioner called Cormany.  The two men
discussed the rezoning application and petitioner's campaign, and they
arranged to meet the next day.  Pet. App. 4.

   Petitioner and Cormany met as scheduled on July 24.  Petitioner
showed Cormany a document containing his campaign budget from June 29
through the primary election on August 12.  The document showed a
budget of $14,180 and campaign contributions of $6,295, resulting in a
shortfall of $7,885.  After Cormany said, "I desperately need() your
help and support on this project," petitioner said:  "Well, let me
tell you.  I, it's cause, see you don't know how I operate.  What I'm,
what I'm telling you is that, this is what the shortfall is and then
you can decide whatever part you want to handle of that." Pet. App. 4.
 When Cormany responded, "You're talking about seven eight
eighty-five," petitioner responded affirmatively, and stated, "I
understand both of us are groping * * * for what we want to say to
each other." Ibid.  Petitioner added:  "If you gave me six, I'll do
exactly what I said I was gonna do for you.  If you gave me one, I'll
do exactly what I said I was gonna do for you.  I wanna make sure
you're clear on that part.  So it doesn't really matter.  If I
promised to help, that's what I'm gonna do." Id. at 5.

   Cormany then asked whether his contribution should be in cash or by
check.  Petitioner first responded that the payment should be in cash,
"so there won't be any, any, tinges, or anything." Pet. App. 4.  He
then modified that by asking for a check for $1,000, adding "that
means we gonna record it and report it and then the rest would be in
cash." Ibid.  Cormany then said, "I hope you understand that, ahh,
just because, you're in an election year that's not the only reason
that, I mean we would have a budget either way," and petitioner
responded, "I understand that." Ibid.

   Later that day, but before Cormany had paid petitioner, Cormany
tried to file the application for rezoning the property, but the
application was rejected because the property had been rezoned less
than two years earlier.  Petitioner and Cormany met again on July 25
and discussed whether the two-year limitation could be waived.  At
that meeting, Cormany gave petitioner $7,000 in cash, which petitioner
placed in an envelope, and a check for $1,000 payable to "John Evans
Campaign." Petitioner locked the cash in a file cabinet in his
campaign office.  Petitioner did not at that time record the $7,000 in
cash on his books or on the required state campaign financing
disclosure form.  At the August 12 DeKalb County Commission meeting,
the waiver was granted by a 4-0 vote.  Pet. App. 5.

   Cormany subsequently informed petitioner that approval of the
zoning application would require an amendment to the comprehensive
land use plan.  After the Planning Department recommended denial of
the application to make such an amendment to the comprehensive plan,
Cormany withdrew the zoning application.  Pet. App. 5.

   About 14 months after Cormany had given petitioner the $8,000, two
FBI agents interviewed petitioner at his office.  Petitioner was
informed that the agents wished to ask him about campaign
contributions he had received from developers.  Petitioner told the
agents that Cormany had given him $1,000 and that all of the
contributions he received from individuals were reflected in his
campaign disclosure reports.  Petitioner did not mention the $7,000
cash payment he received from Cormany.  Pet. App. 5-6.

   At the end of petitioner's campaign, he had a surplus of more than
$7,000, counting the $7,000 he received in cash from Cormany.
Petitioner argued that he used $4,100 of the $7,000 to repay in cash a
portion of an old campaign debt to his mother, and used the remaining
$2,900 to repay himself for loans he made to his campaigns from 1982
through 1986.  He did not record these payments in his books or amend
his state disclosure forms, however, until after he knew he was under
investigation.  He did not report the $7,000 payment as personal
income on his 1986 income tax return.  Pet. App. 5-6.

   2. On June 16, 1988, petitioner was indicted on one count of
violating the Hobbs Act by wrongfully obtaining under color of
official right both the $1,000 campaign contribution check and the
$7,000 cash payment.  He also was indicted on one count of filing a
false 1986 income tax return by not reporting the $7,000 cash payment
as personal income.

   With respect to the tax fraud count, the district court instructed
the jury:  "(I)f you find that the money the defendant received from
Cormany was a campaign contribution and that it was used to pay
campaign expenses or debts, the defendant was not required to report
it as income on his federal income tax return." Pet. App. 36.  With
respect to the Hobbs Act count, the district court instructed the jury
that it was not a violation of the Hobbs Act to take a campaign
contribution unless the contribution was induced as a quid pro quo for
an official act:

      The solicitation of campaign contributions from any person is a
      necessary and permissible form of political activity on the part
      of persons who seek political office.  Thus, the acceptance by
      an elected official of a campaign contribution does not, in
      itself, constitute a violation of the Hobbs Act even though the
      donor has business pending before the official. However, if a
      public official demands or accepts money in exchange for (a)
      specific requested exercise of his or her official power, such a
      demand or acceptance does constitute a violation of the Hobbs
      Act regardless of whether the payment is made in the form of a
      campaign contribution.

Pet. App. 7, 32-33.  The district court further instructed the jury
that to convict petitioner on either the Hobbs Act count or the tax
fraud count it must find that petitioner acted "voluntarily and
purposely with the specific intent to do something the law forbids;
that is, with bad purpose either to disobey or disregard the law."
Pet. App. 36.

   The jury convicted petitioner on both the tax fraud count and the
Hobbs Act count.

   3. The court of appeals affirmed.  Pet. App. 1-15.  With respect to
the Hobbs Act conviction, the court rejected petitioner's argument
that the jury should have been instructed that it had to find that
petitioner initiated the transaction that induced Cormany to part with
the money.  The court instead held that for the offense of extortion
under color of official right, the "inducement" requirement of the
Hobbs Act is satisfied if "the official knows that he is being offered
the payment in exchange for a specific requested exercise of his
official power." Pet. App. 7.

                               ARGUMENT

   1. Petitioner asserts (Pet. 16-23) that there is a conflict among
the circuits respecting whether a public official must initiate a
corrupt payoff to satisfy the "inducement" element of a Hobbs Act
violation.  While a theoretical conflict does exist among the circuits
on the meaning of inducement under the Hobbs Act, in this case and in
virtually all other cases the outcome would be the same under any of
the differing formulations of inducement.  Accordingly, review by this
Court is not warranted.  Petitioner also suggests that this case
should be held for the decision in United States v. McCormick, No.
89-1918.  However, that is not appropriate because McCormick does not
present the issue raised in this case.

   a. The Hobbs Act defines "extortion" to include "the obtaining of
property from another with his consent, induced * * * under color of
official right." 18 U.S.C. 1951(b)(2).  A number of courts of appeals
have stated that a public official who received a payoff may be found
guilty under the Act as long as the official knew that the wrongful
payment he received was motivated by a desire for a specific exercise
of his official power.  See, e.g., United States v. Garner, 837 F.2d
1404, 1423 (7th Cir. 1987), cert. denied, 486 U.S. 1035 (1988);
United States v. Spitler, 800 F.2d 1267, 1274-1275 (4th Cir. 1986);
United States v. McClelland, 731 F.2d 1438, 1439-1440 (9th Cir. 1984),
cert. denied, 472 U.S. 1010 (1985);  United States v. Jannotti, 673
F.2d 578, 594-596 (3d Cir.) (en banc), cert. denied, 457 U.S. 1106
(1982);  United States v. French, 628 F.2d 1069, 1074 (8th Cir.),
cert. denied, 449 U.S. 956 (1980);  United States v. Williams, 621
F.2d 123, 123-124 (5th Cir. 1980), cert. denied, 450 U.S. 919 (1981);
United States v. Butler, 618 F.2d 411, 417-418 (6th Cir.), cert.
denied, 447 U.S. 927 (1980);  United States v. Hall, 536 F.2d 313,
320-321 (10th Cir.), cert. denied, 429 U.S. 919 (1976);  United States
v. Hathaway, 534 F.2d 386, 393-394 (1st Cir.), cert. denied, 429 U.S.
819 (1976);  United States v. Trotta, 525 F.2d 1096, 1100 (2d Cir.
1975), cert. denied, 425 U.S. 971 (1976).

   Recently, the Ninth and Second Circuits have held that evidence of
the mere passive receipt of an unlawful payoff by a public official is
not sufficient to support a Hobbs Act conviction.  United States v.
Aguon, 851 F.2d 1158, 1166-1167 (9th Cir. 1988) (en banc);  United
States v. O'Grady, 742 F.2d 682, 687-689 (2d Cir. 1984) (en banc).
Those two cases create a theoretical conflict with the other circuits,
but the conflict has little practical significance.  As the Seventh
Circuit recognized, "(t)here is an air of the academic about this
intercircuit conflict because, as a matter of fact, in none of the
cases in which the issue has been presented was the official passive."
United States v. Holzer, 816 F.2d 304, 311 (7th Cir.), vacated, 488
U.S. 928 (1987), aff'd in part on remand, 840 F.2d 1343 (1988).
Indeed, the Second Circuit reviewed each of the appellate decisions
suggesting that passive acceptance of a gratuity violates the Hobbs
Act, and concluded that "the facts of those cases * * * establish
conduct from which inducement can readily be inferred." 742 F.2d at
689.

   Moreover, the Second Circuit and the Ninth Circuit both recognized
that a public official may induce a payoff in a variety of ways.  The
Second Circuit stated that "(p)roof of a request, demand or
solicitation, no matter how subtle, will establish wrongful use of
public office;  proof of a quid pro quo would suffice as would other
circumstantial evidence tending to show that the public official
induced the benefits." 742 F.2d at 691-692.  In the case before it,
the court added, if the defendant "created the impression, not by
words but by deeds, that vendors whose business fortunes with the (New
York City Transit Authority) depended on him were expected to make
generous 'gifts' to him, then (the defendant) could not escape
conviction." Id. at 692.  The Ninth Circuit similarly held that
"'inducement' can be in the overt 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 defendant's prior conduct in office."
851 F.2d at 1166.

   Subsequent decisions of the Second and Ninth Circuits make clear
that Aguon and O'Grady provide only that a Hobbs Act conviction may
not be "based on mere acceptance of a contribution." United States v.
Egan, 860 F.2d 904, 907 (9th Cir. 1988).  In Egan, the "district court
did not use the word 'inducement' in its jury instructions," ibid.,
but the Ninth Circuit affirmed a Hobbs Act conviction because the
instructions provided that the defendant could be convicted only if
the jury found that he had communicated that favors were for sale.  In
United States v. Campo, 774 F.2d 566, 569 (1985), quoting 742 F.2d at
694 (Pierce, J., concurring), the Second Circuit noted that a majority
of the court had concluded in O'Grady "that 'the jury should be
permitted to infer inducement by the defendant based upon a finding of
repeated acceptances over a period of time of substantial benefits.'"
The court in Campo affirmed the Hobbs Act conviction of a police
officer who repeatedly accepted $50 from the operator of a disco for
patrolling the area around the disco, although the police officer had
not initiated the payoffs.  774 F.2d at 568.

   The first question presented in the petition states that the issue
is whether a Hobbs Act conviction may be based "upon mere passive
acceptance" of a payoff.  Pet. i.  But the facts did not show mere
passive acceptance.  To the contrary, the give and take between
petitioner and Cormany evident during their recorded conversation on
July 24, 1986, would constitute "inducement" of a payoff by petitioner
in any court of appeals, including the Second and Ninth Circuits.  It
was petitioner who said, "you don't know how I operate" and proceeded
to suggest the proper amount of the payoff by referring to his
campaign budget.  Pet. App. 4.  It was also petitioner who reassured
Cormany that "I understand both of us are groping * * * for what we
need to say to each other." Ibid.  And petitioner took the initiative
in directing that the $8,000 payment should be divided between a
$1,000 campaign contribution that would be reported as such and a
$7,000 cash payment that would not be reported "so there won't be any,
any, tinges, or anything." Id. at 5.

   The jury instructions also required the jury to find inducement on
petitioner's part.  The jury was instructed that it had to find that
the payments were made as part of a quid pro quo arrangement, Pet.
App. 33, and that is sufficient to constitute proof of inducement in
the Second and the Ninth Circuits.  Aguon, 742 F.2d at 691-692;
Campo, 774 F.2d at 569;  Egan, 860 U.S. at 907.  Since the jury found
that petitioner offered his services for sale and entered into an
arrangement in which he effectively sold those services for money, his
conviction would be affirmed by any court of appeals.  This case
therefore does not warrant further review by this Court.

   b. There is no need to hold this case for McCormick v. United
States, because the petitioner in McCormick has not raised the
question presented here.  The focus of the petitioner's argument in
McCormick is that the jury was instructed that it need not find that
"the defendant committed or promised to commit a quid pro quo, that
is, consideration in the nature of official action in return for the
payment of money not lawfully owed." 89-1918 J.A. 22, 32-33.  No such
issue is presented in this case, where the jury was told that a public
official violates the Hobbs Act if he "demands or accepts money in
exchange for (a) specific requested exercise of his or her official
power." Pet. App. 33.  The petitioner in McCormick also broadly argues
that extortion "under color of official right" merely prohibits public
officials from pretending that a fee is due or that a fee in excess of
the lawful fee is due.  If the Court were to agree with that argument
that the Hobbs Act proscribes fraud rather than extortion,
prosecutions such as this would not be permissible.  However,
petitioner has not advanced the argument that extortion under color of
official right is committed only where a public official pretends that
a fee is due, so there is no reason to hold this case for McCormick.

   2. The second question presented is whether an elected public
official may be convicted of filing a false tax return for not
reporting money that was used to pay old campaign debts.  As
petitioner concedes, Pet. i n.1, that issue was not raised before the
Eleventh Circuit and was not addressed in the court of appeals'
opinion.  The petition does not include any argument on this second
question, but footnote 1 in the petition suggests that the question is
fairly subsumed by the primary question presented concerning the
nature of the proof of inducement required under the Hobbs Act.

   Contrary to petitioner's suggestion, the tax fraud question he
seeks to raise is entirely separate and distinct from the Hobbs Act
question presented in this case.  The jury was instructed that it
could not convict petitioner of tax fraud if it found "that the money
the defendant received from Cormany was a campaign contribution and
that it was used to pay campaign expenses or debts." Pet. App. 36.  It
is apparent that the jury disbelieved petitioner's claim that his
payments to his mother and to himself were reimbursements of expenses
or debts out of campaign funds, but instead found that petitioner held
the $7,000 in cash as personal income.  Petitioner's failure to record
those asserted "repayments" until after he discovered he was under
investigation may well have influenced the jury in its assessment of
the credibility of this defense.  In light of the finding by the jury
that petitioner accepted a cash payoff rather than a campaign
contribution and failed to report it on his tax return, his tax fraud
conviction should stand.  This is so even if his Hobbs Act conviction
were reversed on account of defective jury instructions with respect
to inducement, since the tax fraud offense does not require proof that
petitioner induced the payment he failed to report.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   ROBERT S. MUELLER, III

      Assistant Attorney General

   RICHARD A. FRIEDMAN

      Attorney

   DECEMBER 1990