Byron White

“ This Court has never held that the right to a jury trial is satisfied when an appellate court retries a case on appeal under different instructions and on a different theory than was ever presented to the jury. Appellate courts are not permitted to affirm convictions on any theory they please simply because the facts necessary to support the theory were presented to the jury.↑ The record shows that McCormick did not ask for an instruction to the effect that proof of an explicit quid pro quo was necessary to convict an elected official under the Hobbs Act for extorting a campaign contribution. ”

“ 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. ”

“ Even assuming that the result of each of these seven inquiries was unfavorable to McCormick, as they very likely were in the Court of Appeals' view, we cannot agree that a violation of the Hobbs Act would be made out, as the Court of Appeals' first conclusion asserted.
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. ”

“ Neither did the Court of Appeals note that the jury was not instructed in accordance with the court's holding that the difference between legitimate and illegitimate campaign contributions was to be determined by the intention of the parties after considering specified factors. ”

“ Following an investigation, a federal grand jury returned an indictment charging McCormick with five counts of violating the Hobbs Act, [2] by extorting payments under color of official right, and with one count of filing a false income tax return in violation of 26 U.S.C. § 7206 (1) , [3] by failing to report as income the cash payments he received from the foreign doctors. At the close of a 6-day trial, the jury was instructed that to establish a Hobbs Act violation the Government had to prove that McCormick induced a cash payment and that he did so knowingly and willfully by extortion. ”

“ McCormick spoke at length in favor of the bill during floor debate and the bill ultimately was enacted into law. Two weeks after the legislation was enacted, McCormick received another cash payment from the foreign doctors. ”

“ United States v. O'Grady, 742 F.2d 682 (1984) . In 1988, the Ninth Circuit, en banc, agreed with the Second Circuit, overruling a prior decision expressing the majority rule. United States v. Aguon, 851 F.2d 1158 (1988) . Other courts have been unimpressed with the view expressed in O'Grady and Aguon. See, e.g., United States v. Evans, 910 F.2d 790, 796-797 (CA11 1990) , cert. pending, No. 90-6105; United States v. Spitler, 800 F.2d 1267, 1274 (CA4 1986) ”