Antonin Scalia

“ In fact, the District Court's instruction that a finding that an "implicit promise of fair treatment" on the part of petitioner in exchange for the contribution would support a Hobbs Act conviction came in part from petitioner's tendered instructions at trial. For example, defendant's requested instruction number 8-A in the District Court proposed that the jury be instructed as follows:
"To prove the crime of extortion under color of official right, the government must establish a demand for payment by the official. ”

“ And conversely, evidence that petitioner would have supported the legislation anyway is not a defense to the already completed crime. The thug who extorts protection money cannot defend on the ground that his threat was only a bluff because he would not have smashed the shopkeeper's windows even if the extortion had been unsuccessful. ”

“ Many public officials receive legitimate 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 good will generated by such contributions will make the official more receptive to their cause. ”

“ An expectation that the donor will benefit from the election of a candidate who, once in office, would support particular legislation regardless of whether or not the contribution is made, would not make the payment contingent or involuntary in that sense ”

“ Addonizio, 451 F.2d 49, 72 (CA3 1971) (" [W] hile the essence of bribery is voluntariness, the essence of extortion is duress") ; United States v. Kubacki, 237 F.Supp. 638, 641 (ED Pa.1965) (same) . Not until 1972 did any court apply the Hobbs Act to bribery. See United States v. Kenny, 462 F.2d 1205, 1229 (CA3 1972) ("kickbacks" by construction contractors to public officials established extortion "under color of official right," despite absence of "threat, fear, or duress") . ”

“ It would require statutory language more explicit than the Hobbs Act contains to justify a contrary conclusion." Ante, at 272-273.↑ "In determining the effect of this instruction on the validity of respondent's conviction, we accept at the outset the well-established proposition that a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge. ”

“ It is sufficient that an affirmance of McCormick's conviction rest on the legal and factual theories actually presented to the jury, whether or not these theories were the ones relied upon by the Court of Appeals.
I respectfully dissent.
Notes
↑ * ↑ The supplemental charge to the jury was equally clear:↑ "Serving constituents and supporting legislation that will benefit the district and individuals and groups therein is the everyday business of a legislator. It is also true that campaigns must be run and financed. ”

“ It also appears to be the case that under New York law, which has long contained identical "under color of official right" language and upon which the Hobbs Act is said to have been based, see Ruff, supra, at 1183, bribery and extortion were separate offenses. An official charged with extortion could defend on the ground that the payment was voluntary and thus he was guilty only of bribery. People v. ”