2404. Hobbs Act -- Under Color Of Official Right | USAM | Department of Justice
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`U.S. Attorneys » Resources » U.S. Attorneys' Manual » Criminal Resource Manual » CRM 2000 -
`2500 » Criminal Resource Manual 2401-2499
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`2404. Hobbs Act -- Under Color Of Official Right
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`In addition to the "wrongful use of actual or threatened force, violence, or fear," the Hobbs Act (18
`U.S.C. § 1951) defines extortion in terms of "the obtaining of property from another, with his
`consent . . . under color of official right." In fact, the under color of official right aspect of the
`Hobbs Act derives from the common law meaning of extortion. As the Supreme Court explained
`in a recent opinion regarding the Hobbs Act,
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`"[a]t common law, extortion was an offense committed by a public official who took
`'by color of his office' money that was not due to him for the performance of his
`official duties. . . . Extortion by the public official was the rough equivalent of what we
`would now describe as 'taking a bribe.'" Evans v. United States, 504 U.S. 255
`(1992).
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`In order to show a violation of the Hobbs Act under this provision, the Supreme Court recently
`held that "the Government need only show that a public official has obtained a payment to which
`he was not entitled, knowing that the payment was made in return for official acts." While the
`definition of extortion under the Hobbs Act with regard to force, violence or fear requires the
`obtaining of property from another with his consent induced by these means, the under color of
`official right provision does not require that the public official take steps to induce the extortionate
`payment: It can be said that "the coercive element is provided by the public office itself." Evans v.
`United States, 504 U.S. 255 (1992); see United States v. Margiotta, 688 F.2d 108, 130 (2d Cir.
`1982), cert. denied, 461 U.S. 913 (1983) ("[t]he public officer's misuse of his office supplies the
`necessary element of coercion . . . .").
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`This theory of extortion under color of official right has resulted in the successful prosecution of a
`wide range of officials, including those serving on the federal, state and local levels. For example:
`United States v. O'Connor, 910 F.2d 1266 (7th Cir. 1990), cert. denied, 111 S. Ct. 953 (1991)
`(police officer accepts payments from FBI agents posing as crooked auto parts dealers); United
`States v. Stephenson, 895 F.2d 867 (2d Cir. 1990) (international trade official in Department of
`Commerce accepts payments to influence ruling); United States v. Spitler, 800 F.2d 1267 (4th
`Cir. 1986) (state highway administrator accepts money from road building contractor); United
`States v. Wright, 797 F.2d 245 (5th Cir. 1986), cert. denied, 481 U.S. 1013 (1987) (city
`prosecutors accept money for not prosecuting drunk drivers); United States v. Greenough, 782
`F.2d 1556 (11th Cir. 1986) (city commissioner accepts money for awarding city concession);
`United States v. Murphy, 768 F.2d 1518 (7th Cir. 1985), cert. denied, 475 U.S. 1012 (1986)
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`(judges accept payments to fix cases); United States v. Mazzei, 521 F.2d 639 (3d Cir.) (en banc),
`cert. denied, 423 U.S. 1014 (1975) (state senator accepts money from landlord seeking
`government office lease). In United States v. Stephenson, 895 F.2d at 871-73, the defendant,
`who was a federal official, unsuccessfully contended that the Hobbs Act only applied to state and
`local officials and that prosecution of federal official for extortion would have to be exclusively
`brought under 18 U.S.C. §872: extortion by officers and employees of the United States. The
`court found that the government could seek a charge under whichever of these two overlapping
`statutes it thought appropriate. Moreover, "it is not a defense to a charge of extortion under color
`of official right that the defendant could also have been convicted of bribery." Evans v. United
`States, 504 U.S. 255 (1992).
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`GENERAL RULE: The usual fact situation for a Hobbs Act charge under color of official right is a
`public official trading his/her official actions in a area in which he/she has actual authority in
`exchange for the payment of money.
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`Some cases under certain fact situations, however, have extended the statute further. For
`example:
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`• Some courts have held that a Hobbs Act violation does not require that the
`public official have de jure power to perform any official act paid for as long as
`it was reasonable to believe that he/she had the de facto power to perform the
`requested act. See United States v. Nedza, 880 F.2d 896, 902 (7th Cir. 1989)
`(victim reasonably believed state senator had the ability to impact a local
`business); United States v. Bibby, 752 F.2d 1116, 1127-28 (6th Cir. 1985);
`United States v. Sorrow, 732 F.2d 176, 180 (11th Cir. 1984); United States v.
`Rindone, 631 F.2d 491, 495 (7th Cir. 1980) (public official can extort money
`for permit beyond control of his office, so long as victim has a reasonable
`belief that he could affect issuance); United States v. Rabbitt, 583 F.2d 1014
`(8th Cir. 1978), cert. denied, 439 U.S. 1116 (1979); United States v. Harding,
`563 F.2d 299 (6th Cir. 1977), cert. denied, 434 U.S. 1062 (1978); United
`States v. Brown, 540 F.2d 364 (8th Cir. 1976); United States v. Hall, 536 F.2d
`313 (10th Cir.), cert. denied, 429 U.S. 919 (1976); United States v. Hathaway,
`534 F.2d 386 (1st Cir.), cert. denied, 429 U.S. 819 (1976); United States v.
`Mazzei, 521 F.2d 639, 643 (3rd Cir.) (en banc), cert. denied, 423 U.S. 1014
`(1975); United States v. Price, 507 F.2d 1349 (4th Cir. 1974).
`• Most courts have held that a Hobbs Act violation does not require that the
`public official be the recipient of the benefit of the extortion, and that a Hobbs
`Act case exists where the corpus of the corrupt payment went to a third party.
`However, consistent with the federal offenses of bribery and gratuities under
`18 U.S.C. § 201 (see 9 U.S.A.M. §§ 85.101 through 85.105), where the
`corpus of the corrupt payment inures to the benefit of a person or entity other
`than the public official most courts have also required proof of a quid pro quo
`understanding between the private corrupter and the public official. See
`United States v. Haimowitz, 725 F.2d 1561, 1577 (11th Cir.), cert. denied, 469
`U.S. 1072 (1984) ("a Hobbs Act prosecution is not defeated simply because
`the extorter transmitted the extorted money to a third party."); United States v.
`Margiotta, 688 F.2d 108 (2d Cir. 1982), cert. denied, 461 U.S. 913 (1983)
`(insurance agency made kickbacks to brokers selected by political leader of
`town); United States v. Scacchetti, 668 F.2d 643 (2d Cir.), cert. denied, 457
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`U.S. 1132 (1982); United States v. Forszt, 655 F.2d 101 (7th Cir. 1981);
`United States v. Cerilli, 603 F.2d 415 (3rd Cir. 1979), cert. denied, 444 U.S.
`1043 (1980); United States v. Trotta, 525 F.2d 1096 (2d Cir. 1975), cert.
`denied, 425 U.S. 971 (1976); United States v. Brennan, 629 F.Supp. 283
`(E.D.N.Y.), aff'd, 798 F.2d 581 (2d Cir. 1986). But see McCormick v. United
`States, 500 U.S. 257 (1991)(allegedly corrupt payment made in the form of a
`campaign contribution to a third party campaign organization was insufficient
`to support a Hobbs Act conviction absent evidence of a quid pro quo).
`• Some courts have held that the Hobbs Act can be applied to past or future
`public officials, as well as to ones who presently occupy a public office at the
`time the corrupt payment occurs. See United States v. Meyers, 529 F.2d
`1033, 1035-38 (7th Cir.), cert. denied, 429 U.S. 894 (1976) (court answered
`affirmatively the question "whether, within the meaning of the Hobbs Act, it is
`a crime for candidates for political office to conspire to affect commerce by
`extortion induced under color of official right during a time frame beginning
`before the election but not ending until after the candidates have obtained
`public office."); United States v. Lena, 497 F.Supp. 1352, 1359 (W.D. Pa.
`1980), aff'd mem., 649 F.2d 861 (3rd Cir. (1981); United States v. Barna, 442
`F.Supp. 1232, 1235 (M.D.Pa. 1978), aff'd mem., 578 F.2d 1376 (3rd Cir.),
`cert. denied, 439 U.S. 862 (1978).
`• Some courts have held that private persons who are not themselves public
`officials can be convicted under this provision if they caused public officials to
`perform official acts in return for payments to the non-public official. United
`States v. Margiotta, 688 F.2d 108 (2d Cir. 1982), cert. denied, 461 U.S. 913
`(1983) (court upheld conviction of head of local Republican Party under color
`of official right where defendant could be said to have caused, under 18
`U.S.C. §2(b), public officials to induce a third party to pay out money); see
`United States v. Haimowitz, 725 F.2d 1561, 1572-73 (11th Cir.), cert. denied,
`469 U.S. 1072 (1984) (private attorney's conviction of Hobbs Act violation
`upheld due to complicity with state senator); United States v. Marcy, 777
`F.Supp. 1398, 1399-400 (N.D.Ill. 1991); United States v. Barna, 442 F.Supp.
`1232 (M.D. Pa.), aff'd mem., 578 F.2d 1376 (3rd Cir.), cert. denied, 439 U.S.
`862 (1978). But see United States v. McClain, 934 F.2d 822, 829-32 (7th Cir.
`1991) ("we believe that, as a general matter and with caveats as suggested
`here, proceeding against private citizens on an 'official rights' theory is
`inappropriate under the literal and historical meanings of the Hobbs Act,
`irrespective of the actual 'control' that citizen purports to maintain over
`governmental activity.").
`• Some courts have also held that private individuals who make payments to a
`public official can be charged under the Hobbs Act, either as an aider and
`abettor or co-conspirator, if he or she is truly the instigator of the transaction.
`See United States v. Torcasio, 959 F.2d 503, 505-06 (4th Cir. 1992); United
`States v. Spitler, 800 F.2d 1267, 1276-79 (4th Cir. 1986) (conviction affirmed
`for aiding and abetting extortion under color of official right even though
`defendant, who paid kickbacks from corporate coffers, was an officer of the
`victim corporation); United States v. Wright, 797 F.2d 245 (5th Cir. 1986). But
`see United States v. Tillem, 906 F.2d 814, 823-24 (2d Cir 1990) (consultant
`employed to help restaurants obtain approvals from corrupt health inspectors
`had no stake in the conspiracy and was not promoting the outcome).
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`• Finally, in a federal prosecution of a state legislator, there is no legislative
`privilege barring the introduction at trial of evidence of the defendant's
`legislative acts. The Supreme Court has held that in such a prosecution a
`speech or debate type privilege for state legislators cannot be made
`applicable through Fed.R.Evid. 501. The Court said such privilege is not
`required by separation of powers considerations or by principles of comity, the
`two rationales underlying the Speech or Debate Clause of the U.S.
`Constitution, art. I, §6, cl. 1. United States v. Gillock, 445 U.S. 360, 368-74
`(1980).
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`CAVEAT: The Hobbs Act and Campaign Contributions. The Supreme Court has held that, when
`an allegedly corrupt payment masquerades as a campaign contribution, and when there is no
`evidence that the corpus of the "contribution" inured to the personal benefit of the public officer in
`question or was a product of force or duress, the Hobbs Act requires proof of a quid pro quo
`agreement between the contributor and the public officer. McCormick v. United States, 500 U.S.
`257 (1991). However, the Court has also held that proof that a quid pro quo agreement existed in
`a corruption case brought under the Hobbs Act may be proven circumstantially. Evans v. United
`States, 504 U.S. 255 (1992). This interpretation of the dimensions of the hobbs Act in corruption
`scenarios is consistent with the parameters of the facts needed to prove the federal crimes of
`bribery and gratuities under 18 U.S.C. § 201. See United States v. Brewster, 50-6 F.2d 62 (D.C.
`Cir. 1972), 9 U.S.A.M. §§ 85.101 through 85.105, supra.
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`CAVEAT: The Hobbs Act and evidence of a quid pro quo. When the Hobbs Act is applied to
`public corruption scenarios that lack evidence of actual "extortionate" duress, some courts have
`interpreted the Hobbs Act very strictly to require proof of a quid pro quo relationship between the
`private and the public parties to the transaction, even where the corpus of the payment inured to
`the personal benefit of the public official. See United States v. Martinez, 14 F.3d. 543 (11th Cir.
`1994)(Hobbs Act did not apply to pattern of in-kind payments given personally to Florida mayor in
`the absence of evidence of a quid pro quo relationship between the mayor and alleged private
`corrupter); United States v. Taylor, 993 F.2d 382 (4th Cir. 1993)(same); United States v.
`Montoya, 945 F.2d 1086 (9th Cir. 1991)(same); contra United States v. Brandford, 33 F.3d 685
`(6th Cir. 1994)(Hobbs Act does not require proof of quid pro quo where corpus of corrupt
`payment inured to the personal benefit of public officer). In addition, some courts require that
`corruption cases brought under the "color of official right" clause of the Hobbs Act be
`accompanied by proof that the public official induced the payment. See Montoya, supra.
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`At the very least, the courts will probably not extend the "color of official right" clause of the
`Hobbs Act beyond the parameters of crimes of bribery and gratuities in relation to federal officials
`that are described in 18 U.S.C. § 201. See United States v. Brewster, 506 F.2d 62 (D.C. Cir.
`1974), 9 U.S.A.M. §§ 85.101 through 85.105, supra. This means that where the corpus of the
`alleged corrupt payment passed to someone or something other than the public official personally
`(including those where it passed to a political committee), the Hobbs Act probably does not apply
`unless there is also evidence of a quid pro quo. And even then, some Circuits, such as the Ninth,
`require additional proof that the payment was induced by the public official.
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`PRACTICE TIP: The Public Integrity Section possesses considerable expertise in using the
`Hobbs Act to prosecute public corruption. While not required, AUSAs are strongly urged to
`consult with the Public Integrity Section in the investigation and prosecution of corruption cases
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`https://www.justice.gov/usam/criminal-resource-manual-2404-hobbs-act-under-color-offic...
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`under this statutory theory. Public Integrity can be reached at 202-514-1412, or by fax at 202-
`514-3003.
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`[cited in USAM 9-131.010]
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`‹ 2403. Hobbs Act -- Extortion By Force,
`Violence, Or Fear
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`up
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`2405. Form Indictment -- Interference With
`Commerce By Extortion Consisting Of
`Threats, Violence Or Fear (18 U.S.C. 1951)
`›
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