subtle: "Proof 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." Id. at 691-92. The extortion must "begin with the public official, not with the gratuitous actions of another" and "when a public official merely accepts unsolicited benefits knowing that they were given because of his public office", it is not extortion. Id. at 684, 691. Absent inducement, observed the O'Grady court, public officials would neither be protected from an overbroad statute nor an impermissible degree of prosecutorial discretion and the Hobbs Act would be transformed into a professional ethics standard governing public officials. 742 F.2d at 687.
The Ninth Circuit, in United States v. Aguon, 813 F.2d 1413 (9th Cir. 1987), while not in so many words parting with that circuit's construction of the Hobbs Act as to require inducement, see United States v. McClelland, 731 F.2d 1438, 1440 (9th Cir. 1984), cert. denied, 472 U.S. 1010, 86 L. Ed. 2d 723, 105 S. Ct. 2708 (1985), required a demand on the grounds of office for an act to be under color of official right. While "no threat and no specific inducement need be made . . . a demand (which some people might think to be a form of inducement) is necessary."
813 F.2d at 1416. "However subtly the official communicated, a demand was . . . necessary to constitute common law extortion," and Congress has not indicated any intention to eliminate that common law requirement. Id. While noting differences between its conclusion and some language in O'Grady, most notably the O'Grady court's understanding of "inducement", the Aguon court concluded that it was in harmony with O'Grady on the main points, most particularly that the jury must find "that the public official did something, under color of his office, to cause the giving of benefits." Id. at 1418, quoting O'Grady, 742 F.2d at 693.
Without pausing to analyze why the language of the Hobbs Act and the common law dictate that inducement or demand should be the anchor of color of official right, it is clear that without that anchor, official right goes out to sea, bizarre results obtain, and uncertainty again rears its head. For example, the Third Circuit has approved a jury instruction that extortion under "color of official right is defined as the taking by a public official of money not due him or his office. . . ." United States v. Cerilli, 603 F.2d 415, 427 n.2 (3d Cir. 1979) (Aldisert, J., dissenting), cert. denied, 444 U.S. 1043, 62 L. Ed. 2d 728, 100 S. Ct. 728 (1980). See Jannotti, 673 F.2d at 595. This expansive language, absent an inducement requirement or stripped from its moorings in a case in which there was "overwhelming" proof of coercion, 603 F.2d at 425, would cover even a gift where no quid pro quo was either sought or believed to be possible because a gift is not " due him or his office" (emphasis supplied). It would cover any pocketing of money by a public official as by larceny or embezzlement committed surreptitiously.
But it would defy logic to penalize the mere receipt of a gratuity, effectively a lesser included offense of bribery, the same as the greater offense. Cerilli notes that "The receipt of money . . . is not inherently wrongful." 603 F.2d at 419-20. And certainly more than a gift or a mere taking is required if the foundation of the Hobbs Act in the Anti-Racketeering Act of 1934 and the New York Criminal Code as construed by the New York courts in 1946, when the Hobbs Act became effective, is not to be ignored. See United States v. Agnes, 753 F.2d 293, 297 (3d Cir. 1985).
Certainly, too, more than a gift or a mere taking is required if state and local officials are not to face penalties potentially ten times greater than federal officials, under federal law, for identical conduct. See 18 U.S.C. § 201(g) (federal official who receives money "for or because of any official act performed or to be performed" is subject to imprisonment for two years).
I, for one, will not attribute such an intent to Congress. Rather, with Hobbs already on the books, the enactment of the "anti-gratuity" statute in 1962 was "a clear indication that Congress did not believe that the Hobbs Act prohibits such conduct." O'Grady, 742 F.2d at 691. Beyond that, of course, the enactment of that statute, which eliminates common law concepts, is a clear message that Congress did not intend to eliminate the common law core when in the Hobbs Act it employed the common law phrase "under color of official right". See Aguon, 813 F.2d at 1417. And so there is uncertainty and, indeed, confusion when one sees color of official right defined, without more, as a taking of money not due the public official or his office. What the "more" is, absent inducement or something akin thereto, is not entirely clear.
Mazzei teaches that there must be a showing that a public official "through the wrongful use of office obtains property not due him or his office. . . ." 521 F.2d at 645. But how is one's office "wrongfully used"? Certainly, wrongful use of office means more than the mere receipt of money not due the official or his office, although the receipt of money is, of course, a necessary element of the crime. The phrase "wrongful use" -- and the word "obtain" -- implies an action component and a defendant has to use his office to obtain money.
Certainly, too, the facts of those cases which speak in terms of "wrongful use of office" describe conduct from which inducement is readily inferred. The wrong under the Hobbs Act, after all, is the manner in which that money is obtained and the defendant must, in some manner, use his employment to extort. Cerilli, 603 F.2d at 419-20 and n.6.
What becomes fairly clear from a close reading of the cases is that whether it is called "inducement", "exploitation", "use of office", "demand", "coercion" (explicit or implicit), or whatever, there must be a causation component for there to be extortion, i.e. something done by an official which causes one to knowingly part with money or property. It also becomes fairly clear that the disagreement among courts as to the parameters of what "something" is required is more apparent than real.
Even if passive acceptance of a bribe -- an "unexpected bribe", as Jannotti describes it -- would constitute a violation of the Hobbs Act, a conclusion which the cases before the Third Circuit have not required it to draw, see Jannotti, 673 F.2d at 595, implicit in accepting a bribe is an understanding that certain action or inaction is sought in exchange for payment with the receipt of payment effectively compliance with a demand. A bribe by definition comprehends the payment of money based on a belief on the part of the payor that payment is the quid pro quo for the taking or withholding of official action, a belief which is exploited or subtly induced by the payee upon acceptance of payment with knowledge of the reason therefor. As Judge Easterbrook put it, "The prosecutor needed to show that [the 'victim'] paid because Murphy was willing to alter his official acts". United States v. Murphy, 768 F.2d 1518, 1535 (7th Cir. 1985), cert. denied, 475 U.S. 1012, 106 S. Ct. 1188, 89 L. Ed. 2d 304 (1986).
Stated somewhat differently, the public official even in the bribe situation must obtain property knowing that it is consideration for the exercise of his official duty. So viewed, of course, bribery and extortion are not mutually exclusive because it is of no matter whether the "victim" is willing or unwilling and of no matter that the purported "victim" himself instigated the corrupt opportunity.
There was no evidence that either official used his office to extort money from Malouf. Nelson, who committed a crime akin to embezzlement, obtained no money from Malouf with Malouf's consent. By definition, therefore, his conduct did not constitute "extortion". Gassaro had no intention of obtaining money from Malouf but, rather, Malouf and Gassaro together intended to obtain money from the City of New Brunswick.
While this conduct did not constitute extortion, it was the underpinning of the government's theory on the mail fraud count -- a scheme to defraud the City -- a theory, and a contention, which would have been tested at the new trial on Count 1 had that count not subsequently been dismissed.
The Hobbs Act counts are hereby dismissed.