McCormick v. United States – Oral Argument – January 08, 1991

Media for McCormick v. United States

Audio Transcription for Opinion Announcement – May 23, 1991 in McCormick v. United States

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William H. Rehnquist:

We’ll hear argument next in No. 89-1918, Robert L. McCormick v. United States.

Mr. di Trapano, you may proceed.

Rudolph L. di Trapano:

Mr. Chief Justice, and may it please the Court:

The essential issue on this appeal is under what circumstances and to what extent can a noncoercive solicitation of campaign contributions to defray an election expense be in violation of the color of official right provision of the Hobbs Act, and also to what extent and under what circumstances would income declared or the failure to declare a campaign contribution as income violate the tax fraud statutes.

The petitioner in this case was a legislator in the House of Delegates in West Virginia with a history of having sponsored and having worked very hard for a hospital in Southern West Virginia that had to be staffed by foreign-trained doctors, in this case Filipino doctors.

For a period of years the activities of this legislator was limited to extending a temporary license.

Without that extension, without legislative enactment, this hospital would not be able to have operated, and those people in need of health care in that region of Appalachia would have had to travel some 2-1/2 hours to Charleston.

This was a very crucial need in that area, and this… and the petitioner involved was heavily involved with that objective.

William H. Rehnquist:

Where exactly was his district?

Rudolph L. di Trapano:

The district is the… it’s the southern district of West Virginia; Logan County is the county that he is elected from, Your Honor.

William H. Rehnquist:

Logan County.

Rudolph L. di Trapano:

A couple of days before the June 1 payment, the contribution was made, there was a phone call… and this is the only evidence, the only evidence that links the petitioner with a solicitation.

A phone call made by the lobbyist where the conversation had to do with the campaign.

The petitioner said I have an expensive campaign, I haven’t heard from the doctors, and what are you going to do about it.

The lobbyist who made the phone call and the Government’s chief witness, Vandergrift, goes to see the head of the foreign-trained doctors organization, a Dr. Manuel, and repeated the conversation, and said we ought to help the petitioner in his campaign, Mr. McCormick in his campaign.

The… Dr. Manuel… they go to the bank, and although the petitioner did not ask for cash, and under West Virginia law cash contributions over $50 is in violation of the law, punishable by three times the fine, but not an incarcerative offense.

They go to the bank, writes a check for $2,000.

Part of it goes to the lobbyist for expenses, and $900, in $100 bills, is put in an envelope and delivered to the petitioner.

Now, the court… rather the United States Attorney’s Office indicted… had Mr. McCormick indicted under color of official right.

It is the… it is our thesis that color of official right, a plain reading, the plain meaning of color of official right is a pretended assertion of right, that the Congress of 1946 never contemplated that color of official right would be used to prosecute election laws and enforce election laws of the state.

Color of official right and the debate in Congress in 1943… the law was enacted in 1946 but Congressman Hobbs from Alabama, when questioned about color of official right and what it meant, the debate is very limited, and he said it means a pretense assertion of right.

A public official who doesn’t have the right who is asserting the right, more rights than he does have, in extracting money.

Now, for 25 years the Justice Department has never prosecuted for campaign violations until the 1970’s.

That particular passage went unobserved and was not used as a vehicle to prosecute defendants for violating State election laws.

In the Government’s brief the Government–

Antonin Scalia:

Excuse me, Mr. di Trapano.

As I understand it, the Government’s theory for not using it, however, is quite different from the one that you have said.

Rudolph L. di Trapano:

–Yes, Your Honor.

The Government–

Antonin Scalia:

Their theory was that there had to be some coercion or threat of force.

Antonin Scalia:

That was what they thought.

That it was not an independent clause, color of official right, that it just went with the other ones.

Right?

Rudolph L. di Trapano:

–No, Your Honor.

The Government’s theory in the case, as I understand it, is that they contended that this payment was not a political contribution at all.

Antonin Scalia:

No, no, no.

I’m not talking about this case.

I’m talking about those years–

Rudolph L. di Trapano:

In those years, yes.

Antonin Scalia:

–in which, as you have just described, the Government never used this provision–

Rudolph L. di Trapano:

Never used it, right.

Antonin Scalia:

–for things of this sort, political corruption.

Their reason for not using it was not, was not the legislative history that you have just described.

Their reason for not using it was not, as I understand it, that they thought you had… in order to come within it you had to assert a right to it that you really didn’t possess.

Rudolph L. di Trapano:

That’s… that appears to be the Government’s reasoning, but it’s not… it’s not justified by the, by the language of the act.

Antonin Scalia:

Well, my understanding is that that was not the Government’s reason.

That the Government’s reason for not using it was that they thought it was not an independent clause at all, but that that whole clause,

“or under color of official right. “

was attached to the other clauses, and you had to show the other ones in addition to that one.

Rudolph L. di Trapano:

That’s correct.

Antonin Scalia:

Okay.

Rudolph L. di Trapano:

That was used… for the first time in the 1970’s used, and disjunctive in the Kenny case.

That is correct, Your Honor.

In any event, the Government chose to call this transaction a personal payoff.

Now, the contribution was admittedly made in contravention to State law, because the state law in West Virginia makes cash contributions in excess of $50 illegal, and it is punishable, as I have said, by three times the fine.

It also went unreported.

Now, we feel that the… that the color–

William H. Rehnquist:

It went unreported because the petitioner didn’t report it, I take it?

Rudolph L. di Trapano:

–Yes, Your Honor.

Yes, the petitioner didn’t report it.

Sandra Day O’Connor:

Not only didn’t report it for State law purposes as campaign contribution, but didn’t report it as Federal income.

Rudolph L. di Trapano:

Yes.

But the petitioner… but there is no evidence that the petitioner had not used this to reimburse himself for advance that he had made to his campaign.

And the evidence, and the Government concedes that that was the campaign–

Sandra Day O’Connor:

Well, I suppose those facts are evidence about… that go to whether it was a campaign contribution or not.

If it isn’t treated by the candidate in compliance with the laws for receiving campaign contributions, I suppose the jury can consider that fact.

Rudolph L. di Trapano:

–Well, the jury apparently did consider that, but we, we strongly urged the court not to instruct the jury because under the color of official right and under the Hobbs Act the means… the definition of a political contribution, the purpose of it is to influence the nomination, the election, or defeat of a candidate.

The form of the contribution has never been used either in State or Federal definition as part of the definition.

This was in fact a campaign contribution.

Every conversation that had to do with the transaction, it was described as helping Bob in the election, helping him in his campaign.

There was nothing in any of the conversations that had to do that this was some kind of a personal payoff.

Now, the, the petitioner… the court in its–

Sandra Day O’Connor:

How do you explain the failure to report it as a campaign contribution and the failure to report it as income?

Rudolph L. di Trapano:

–How do I–

Sandra Day O’Connor:

Explain it.

Rudolph L. di Trapano:

–Well, the campaign… money received to defray expenses is not income.

And if it’s not income, it shouldn’t be reported.

The tax regulations recognize that, that you can have fund raisers to pay you back, you can advance money to a campaign and you can have fund raisers, and that is not income.

And there was no obligation for him to report this as income.

With respect to the… to the application of the Hobbs Act, the color of official right–

William H. Rehnquist:

Mr. di Trapano, I think Justice O’Connor also asked how do you explain the failure to report it under West Virginia law?

Rudolph L. di Trapano:

–I don’t… I don’t have an explanation why he didn’t report it, other than he simply didn’t comply with the West Virginia reporting laws.

There may be… there may have been other contributions not reported.

But our strenuous objection to the charge of the, of the, to the jury… the court in charge of the jury in connection with these contributions said that it was… that if the contribution, and specifically the contribution from the doctors to the petitioner, if it was not voluntarily made.

And voluntary was described as not having an expectation of benefit, whatever benediction the defendant received as a result of that instruction was stripped away by the court’s conditioning every voluntary contribution unless it was made… it was not voluntary if there was some expectation of benefit.

In this case, obviously, the doctors did have an expectation of benefit, as virtually every political contribution carries.

In the instructions that the court gave the jury after our… we strenuously objected to these instructions.

But the jury in this case really had no options, because the, the court had labeled this… the court said that if, that a political contribution, even if not reported and even if it was in cash, in violation of state law, can still be a political contribution if voluntarily made.

But then again destroyed the effect of that by saying that it’s not a voluntary contribution if there is some expectation of benefit.

Going back to the Hobbs Act and the Enmons case, a request for contribution is a First Amendment prerogative.

Rudolph L. di Trapano:

Political contributions are necessary, and the donors, the contributors, as well as the candidate, has the right to ask for contributions.

The court in its… the color of official right provision as interpreted, and the Hobbs Act as interpreted of this Court, if the… if it had… if there is a legitimate entitlement to the contribution… there was in this case… then the means, whether it was not reported, whether it was in contradiction of State law, is not a dispositive factor as to whether or not there is guilt in the Hobbs Act.

In the Enmons case, as the Court will remember, there there was a strike, a collective bargaining.

The end, the legitimate end, was a collective bargaining benefit of higher wages.

The means used were violating State laws by violence, by using rifles, by blowing up substations, and the Court held that that was not a violation… the means used, and the use of the word “wrongful” as when it precedes “wrongful use”–

Sandra Day O’Connor:

Mr. di Trapano–

Rudolph L. di Trapano:

–Yes, Your Honor.

Sandra Day O’Connor:

–Do you think that it would be a violation of the Hobbs Act for a legislator to say if you will give me a so-called… a campaign contribution, then I promise I will try to help you get the legislation you want?

Rudolph L. di Trapano:

If the color of official right could be expanded to reach into campaign contributions, I’d say yes.

Sandra Day O’Connor:

Does it cover that?

Rudolph L. di Trapano:

I don’t think the intent covers that, but I do–

Sandra Day O’Connor:

Does the language cover it?

Rudolph L. di Trapano:

–No, Your Honor.

Sandra Day O’Connor:

Color of right.

Rudolph L. di Trapano:

Color of official right has a specific meaning.

Sandra Day O’Connor:

In exchange for a promise.

Rudolph L. di Trapano:

Color of official right has a… no, Your Honor, I don’t think it covers it.

I don’t think–

Sandra Day O’Connor:

Some courts have so held.

Rudolph L. di Trapano:

–Some courts have held that there has to be a quid pro quo in order to convict–

Sandra Day O’Connor:

And a promise could be a quid pro quo.

Rudolph L. di Trapano:

–A promise, yes, Your Honor.

And I–

Sandra Day O’Connor:

Which could be express or implied.

Rudolph L. di Trapano:

–I think there has to be an identifiable quid pro quo.

There should be a more precise standard in this situation, because it is–

Sandra Day O’Connor:

But it could be a promise?

Rudolph L. di Trapano:

–There should be… there should be a promise made on behalf–

Sandra Day O’Connor:

It could be a promise, is that right?

Rudolph L. di Trapano:

–Yes, Your Honor.

Rudolph L. di Trapano:

It should contemplate a promise, it should contemplate a consideration and a promise.

Um-hum.

But it should… it should be something very specific, because there is a vast difference in a nonelective public official, who has no business getting money in the first instance.

There is no, there is no conceivable reason why a nonelective official should be asking for money.

And you can understand the decisions in that context.

But where you have a candidate for public office whose very… whose very life depends upon raising campaign contributions, then the laws, the standards should be different.

We were prejudiced by the instructions.

The trial court said if the payment focused on the office.

Now, that has no business in this kind of a case, because every contribution focuses on the office.

And the jury was instructed–

–May I just ask you this question?

Is it essential to your position that we conclude that this was a campaign contribution?

The reason I ask the question is, as I read the instructions, the judge told the jury that there was nothing illegal about making a campaign contribution.

And do we not have to conclude from the verdict of guilty that the jury therefore determined that it was not a campaign contribution?

Rudolph L. di Trapano:

Your Honor, to answer your question, the court did instruct the jury in that connection.

However, it… the court kept repeating that the voluntary contribution had to be made without some expectation of benefit.

And that is wrong for two reasons.

Number one is that every contribution has some expectation of benefit, and that was the definition that was spontaneously suggested to the court by the United States attorney.

There is no basis for that as defining a voluntary contribution.

So it took it outside the ambit of a political contribution once the court said unless it was voluntarily made, and voluntary means that the donor cannot have an expectation of benefit.

And, Your Honor, that destroyed any… that took it outside the purview of a campaign contribution.

John Paul Stevens:

I’m not sure I completely understand your answer.

It seemed to me the judge did say it’s not illegal in and of itself to solicit or accept legitimate campaign contributions, and so forth.

Rudolph L. di Trapano:

He did.

He did, Your Honor.

John Paul Stevens:

And the mere receipt of such political contribution is not illegal.

Now, they found he acted illegally, so did… does it not necessarily follow they found he did not receive such a campaign contribution?

Rudolph L. di Trapano:

No.

If the court had… if the court had defined… if the court had not conditioned to define the voluntary, I agree with you, Your Honor.

I agree with you.

Rudolph L. di Trapano:

But when the court said you must also find that it is voluntarily made, and when I say voluntary I mean that the donor had no expectation of benefit.

Again, that, Your Honor, is in conflict with the Enmons case, or rather with the 807 case, I mean, where the state of mind of the donor, the payer, should not be the guiding principle in determining the legal liability of the recipient.

Antonin Scalia:

You’re referring… I’m sorry.

You’re referring to page 34 of the Joint Appendix, I take it, in which the instruction says in order to find Mr. McCormick guilty you must be convinced beyond a reasonable doubt that the payment alleged was made with the expectation that such payment would influence Mr. McCormick’s official conduct and with knowledge on his part that it was made, that the payment was made, with that expectation?

Rudolph L. di Trapano:

Yes, Your Honor.

Antonin Scalia:

And you say that that is quite different from a quid pro quo?

Rudolph L. di Trapano:

Yes, Your Honor.

I think–

David H. Souter:

So you’re saying that the quid pro quo instruction is necessary in effect to distinguish a campaign contribution from something which is not?

I mean, that’s what it boils down to?

Rudolph L. di Trapano:

–Yes, Your Honor.

David H. Souter:

All right.

Now, you answered… if I recall, a moment ago you answered one of Justice O’Connor’s questions by saying that a promise merely to use best efforts to help in the passage of legislation would not be a sufficient quid pro quo.

Is that correct?

Was that your answer?

Rudolph L. di Trapano:

I would say that if the candidate, before he received a contribution, and had no history one way or the other, would say to a contributor, to a contributor, that if I get a contribution I’ll do my best, I think that approaches a quid pro quo.

David H. Souter:

So that would be enough?

Rudolph L. di Trapano:

I think it approaches it, Your Honor.

I, I still think it should be, when you are dealing with the First Amendment, when you are dealing with campaign contributions and with the Buckley-Valeo, the… where it says that it will be rigorously… the standards will be rigorously reviewed, I believe that there should be more, or it should be an identifiable quid pro quo in the… in the election law.

David H. Souter:

Well, the quid pro quo, I suppose, can either be a promise to use best efforts, or I suppose the next step would be a promise to deliver the legislation.

And I take it you’re not going so far as to say that there has somehow got to be a promise to deliver the finished product before a legislator could provide a quid pro quo for purposes of this statute?

Rudolph L. di Trapano:

If the candidate said to the contributor, I will not use my best efforts if I don’t get your money, I will use my best efforts if I do, that’s a quid pro quo.

David H. Souter:

Do you think it was finable on the evidence in this case that that’s what your client was indicating?

Rudolph L. di Trapano:

There is not one word to suggest that.

David H. Souter:

Well, does there have to be one word?

Rudolph L. di Trapano:

Yes, there does have to be one.

There has to be–

David H. Souter:

In other words, it’s not so much the definiteness now of the quid pro quo, as the definiteness of the statement expressing the promise or the demand for a quid pro… or the promise of a quid pro quo for the demand that you are requiring?

Rudolph L. di Trapano:

–Your Honor–

David H. Souter:

He’s just got to be more explicit about it, is what you’re saying.

David H. Souter:

Is that fair to say?

Rudolph L. di Trapano:

–I’m saying he had to be… yes, Your Honor.

I think you have to be… you know, you could cite 100 examples.

The NRA doesn’t contribute to people who don’t have a history of voting against gun laws, against gun regulations.

Labor, labor PAC committees would never contribute to somebody who votes against minimum wage.

I mean, it’s, it’s–

David H. Souter:

No, I don’t, I don’t need… I don’t think you need to argue that to me.

I just want to make sure that I am understanding exactly what you’re saying.

And I think what you’re saying is that if there had been an explicit solicitation by which your client said either I am going to use no more efforts to help these doctors if they don’t contribute, or conversely, I will continue to use my best efforts if they do contribute, that would have been enough to provide a quid pro quo.

Is that correct?

Rudolph L. di Trapano:

–Yes, Your Honor.

I would think so.

And in the–

Sandra Day O’Connor:

Well, don’t you think that that understanding could be implicit rather than express?

Isn’t that possible?

Rudolph L. di Trapano:

–Your Honor, I do think that is possible.

Sandra Day O’Connor:

And if not, why not?

Rudolph L. di Trapano:

Your Honor, I think that it’s possible for somebody serving in the legislature, State or in Congress to… and implicit in a campaign contribution is that he’s got to continue on a course of conduct.

I do think it’s implicit.

I think that’s the nature in this country of campaign contributions given to candidates who have empathy with–

Sandra Day O’Connor:

Well, if the promise is implicit, as Justice Souter has described it, then it would be a violation of the Hobbs Act.

It’s a quid pro quo.

Rudolph L. di Trapano:

–Well, Your Honor, I don’t… I think it has to be… there has to be identifiable quid pro quo.

Sandra Day O’Connor:

Your argument is it has to be express.

Rudolph L. di Trapano:

Yes, Your Honor.

Sandra Day O’Connor:

But there is nothing in the statute that says that.

Rudolph L. di Trapano:

There is nothing in the statute that says they have any business in large to cover campaign contributions, and Congress never intended this act to get involved in regulating State elections.

There is nothing in this debate that suggests… suggests that color of official right has anything to do with regulating State elections.

Byron R. White:

Counsel, suppose a Congressman says to some people, I’m not running for the next… I’m not running for office next time.

I know you want this bill passed.

Byron R. White:

I will use my best efforts to get the bill passed if you pay me $10,000.

And there is… it doesn’t even, it doesn’t purport to be a campaign contribution.

Now, I suppose you would say that that is subject to the Hobbs Act.

Rudolph L. di Trapano:

I’d say that’s… that could be subject… the color… under color of official right.

Byron R. White:

That’s just a payoff.

Rudolph L. di Trapano:

That’s a payoff.

Byron R. White:

Well, suppose that that same Congressman’s… suppose the facts are what they exactly are in this case, and it did not purport to be a campaign contribution.

There was no… there’s no express anything.

The facts are these facts except the legislator doesn’t even claim that it’s a campaign contribution.

Rudolph L. di Trapano:

Well, the legislator did then report it.

The legislator’ll never–

Byron R. White:

All right, but doesn’t it… this pay… suppose in this case the payoff never purported to be, and was never claimed to be a campaign contribution, but there still was no express quid pro quo agreement?

The facts are just like they are in this case, except that it doesn’t purport to be a campaign contribution.

Rudolph L. di Trapano:

–Well, Your Honor, in this case it’s not, because the only conversation in evidence is that–

Byron R. White:

Well, but I… my question is on those facts would the legislator be subject to prosecution under the Hobbs Act?

Rudolph L. di Trapano:

–I don’t think so.

I don’t think so under the Hobbs Act, Your Honor.

Byron R. White:

Even though there is no claim that it’s even a… campaign contribution?

Rudolph L. di Trapano:

Yes.

There’s additional reason in the Hobbs Act, Your Honor, because in the Hobbs Act the means, the means of attaining a contribution has been condemned in the Enmons opinion.

That’s not a relevant consideration.

Byron R. White:

Well, if it isn’t, it’s either a campaign contribution or it’s a payoff.

I had thought you said the only way you could win in this case is if it’s a campaign contribution?

Rudolph L. di Trapano:

I’d… I… I misspoke if I said that.

I’m not suggesting… if it’s a quid pro quo reason, it violates the law.

If the Court is expanding–

Byron R. White:

What business has a legislator got taking this kind of money except as a campaign contribution?

Rudolph L. di Trapano:

–He has none.

To defray expenses, that’s what this was taken for, to defray expenses that he had advanced.

William H. Rehnquist:

Mr. di Trapano, let me take you back, if I may, to the jury charge that you were speaking about and which questions were asked on page 34 of the Joint Appendix, where the language used in that first paragraph is that the payment had to be made on behalf of the doctors with the expectation that such payment would influence Mr. McCormick’s official conduct.

William H. Rehnquist:

Now, that is the charge that you think was mistaken in stating the law?

Rudolph L. di Trapano:

I think that charge is mistaken, yes, Your Honor.

William H. Rehnquist:

You said earlier that there was a charge that it had to be… the jury would have to find it was given in expectation of benefit, and is there another charge to that effect, or were you just paraphrasing this charge?

Rudolph L. di Trapano:

No, Your Honor.

The court… let me read this.

The court actually said… the court said, and the court recognized our defense that the fact that the contribution was made in violation of State law could still be a political contribution made in cash.

But the court said that a voluntary political contribution, though it may have been made in violation of local law, it was a defense in this case, it was permissible.

However, the court went on to say voluntary is that which is freely given without expectation of benefit.

William H. Rehnquist:

What page of the Joint Appendix is that on?

Rudolph L. di Trapano:

That’s on 30, page 30.

William H. Rehnquist:

Thank you.

Rudolph L. di Trapano:

And page… and again the court repeated on page 31, when it reread.

The jury was confused, came back, and the court said again, the mere voluntary payment of money, without expectation of benefit, does not constitute extortion.

It had to be without expectation of benefit, and there is no way we could argue that these four or five doctors didn’t have some expectation of benefit, because they wanted their license.

Byron R. White:

Counsel, do you read the Solicitor General as agreeing with you that if you are going to rely on a quid pro quo it has to be an explicit agreement?

Rudolph L. di Trapano:

Yes, Your Honor.

Byron R. White:

And shouldn’t… and I take it you read the Solicitor General as not resting on the notion that there was a quid pro quo for a campaign contribution?

Rudolph L. di Trapano:

Yes, Your Honor.

I read the Solicitor General as mischaracterizing the transaction as being a personal payoff without any evidence in the record to support that.

Byron R. White:

Okay.

Rudolph L. di Trapano:

I would like to reserve my several minutes I have.

William H. Rehnquist:

Very well, Mr. di Trapano.

Mr. Wright, we’ll hear from you.

Christopher J. Wright:

Thank you, Mr. Chief Justice, and may it please the Court:

The issue in this case, in our view, is whether petitioner received a personal payoff or a campaign contribution, and the court of appeals held, quote,

“The evidence supports the conclusion that the money was never intended by any of the parties to be a campaign contribution. “

I’d like to briefly review the facts to show that the court of appeals and the jury were both correct in that finding.

Antonin Scalia:

Before you do, the evidence… one can concede that the evidence supports that conclusion without conceding that the jury was required to arrive at that conclusion.

What in the instructions requires the jury to find that this was not a campaign contribution, in the sense… in the proper sense of a campaign contribution?

Christopher J. Wright:

I would be happy to review the instructions with you at this point.

Antonin Scalia:

What I’m concerned about is specifically the sections of the instruction that we were talking about.

If something is not a campaign contribution if it is given with the expectation of deriving some benefit from it, then indeed nothing is a… or very little is a campaign contribution.

Christopher J. Wright:

Well, first let me say that the portion of the instructions that Mr. di Trapano was referring to don’t really have to do with campaign contributions.

But I’d like to take a minute and really go through this, if you’re troubled by it.

I think that Justice Stevens and others suggested that the instructions are really quite clear, that the jury could not convict if they concluded that this was a campaign contribution, and I think that that is correct.

I’ll focus on the instructions that were given, the supplemental instructions, since–

William H. Rehnquist:

What page of the Joint Appendix will you be dealing with?

Christopher J. Wright:

–They start on page 27 and they run until the end.

I’d like to first note that if you start on page 29 the court sets out the basic elements of a Hobbs Act violation, and on page 29 and 30 it talks about inducement.

On page 30 through 32 it speaks about the meaning of color of official right.

On page 33 and going over to the top of 34 the court is still speaking of the Hobbs Act and it covers campaign contributions.

It returns to campaign contributions on page 37 as part of the tax fraud defense.

Now, looking at pages 33 to 34 I’d like to note that there are 1, 2, 3, 4… 5 paragraphs.

Each one of those paragraphs was delivered verbatim from the instructions the petitioner requested.

Of course there was no objection.

Nothing was deleted from their requested instructions.

Excuse me.

It says that many public officials in this country receive campaign contributions–

William H. Rehnquist:

Where are you reading from now?

Christopher J. Wright:

–The second full paragraph.

Sandra Day O’Connor:

Of what page?

Christopher J. Wright:

33.

“Many public officials in this country receive political contributions from individuals who, the official knows, are motivated by a general gratitude toward him. “

I won’t finish that paragraph.

The next paragraph says,

“The mere solicitation or receipt of such political contributions is not of itself illegal. “

The next paragraph reviews the facts of this case and says that there is evidence that Mr. McCormick might have received campaign contributions.

The paragraph after that says, and I’ll quote it,

“It would not be illegal, in and of itself, for Mr. McCormick to solicit or accept political contributions from foreign doctors who would benefit from this legislation. “

I’d like to turn briefly to page 37.

Christopher J. Wright:

The tax fraud instruction–

Antonin Scalia:

Excuse me, before you do that, what about the top paragraph on 34?

The first full paragraph on 34.

Was that a part of the instructions that the defendant requested?

Christopher J. Wright:

–No.

No, I don’t believe that that is part of the campaign contribution defense instruction.

And–

Antonin Scalia:

Well, wait–

Christopher J. Wright:

–Let me say next that they did not object to this instruction either.

Antonin Scalia:

–There was no objection to the instructions at all?

Christopher J. Wright:

Not to the paragraph on page 34 that you’ve just referred to.

Antonin Scalia:

Well, as I see the difference between 34, the first paragraph on 34 says what extortion does consist of, and the paragraph you just quoted says what a campaign contribution that is not extortion consists of.

And the only difference between the two is that paragraph on page 33 beginning “Many public officials”.

It says it’s okay if you give the money even in the hope that the goodwill generated will make the official more receptive.

And then this paragraph on 34 says however, it’s bad and it’s extortion if it’s given not with the hope but with the expectation that it will produce his conduct.

Is that the line that you think is the correct one between hope and expectation?

That’s the line between extortion and a campaign contribution?

Christopher J. Wright:

No, Your Honor.

I don’t think the jury instructions are reasonably read that way.

I think, reading them in context, the court has explained what color of official right means, and the instruction you’re speaking of goes more to that.

But the jury has also been instructed at considerable length that if it was a campaign contribution he can’t be convicted.

And I don’t think that anything in the color of official right instructions can be read to negate the longer express instruction that petitioner requested on campaign contributions.

William H. Rehnquist:

Well, Mr. Wright, how about the instruction that petitioner mentioned, the last full paragraph on page 30 of the Joint Appendix?

Christopher J. Wright:

Well, I think that it’s very unusual for a petitioner to be commenting on this.

Let me explain that it was the Government who objected to this instruction.

As originally given, the Government objected to the word “voluntary” because in context it seemed to suggest that because the doctors consented to the payments that it would be a defense, and hence it would be impossible to convict anyone who consensually made a payment.

The district court then came up with the phrase

“freely given without expectation of benefit. “

And–

William H. Rehnquist:

Do you think that’s a correct statement of the law?

Christopher J. Wright:

–I think that in context it distinguishes what the district court meant it to distinguish, and what I think the jury understood it to be, that there is a difference between a consensual payment and a voluntary–

Sandra Day O’Connor:

But Mr. Wright, doesn’t every person who makes a political contribution almost expect some kind of benefit in some form?

Christopher J. Wright:

–Yes.

Sandra Day O’Connor:

You expect to be benefitted by having their service, or because of the positions you expect them to take.

I mean, it’s a very difficult line unless you rely on a line that says there has to be a quid pro quo.

And in that event we know what is a contribution and what isn’t.

Christopher J. Wright:

Well, Your Honor, I think whether it’s a contribution or not can be determined from the facts.

Now, we agree that if it is in fact a campaign contribution, a sort of heightened quid pro quo would be required.

In our view vote selling is what is covered in the case of campaign contributions.

If it’s a personal payoff, however, in our view, it is always a misuse of public office for an official to accept a payoff for doing his job.

David H. Souter:

But Mr. Wright, isn’t it the case that the jury would be left, given these instructions, with the understanding that the difference between the… what is or is not a campaign contribution, and hence what is or is not a payoff, is a difference which depends on the distinction between giving with hope and giving with expectation?

Isn’t that a fair assessment of the instructions?

Christopher J. Wright:

I don’t think so.

I think, again, that the jury was instructed what the meaning of color of official right was, and was instructed that that meant that the official had to know that the public official was receiving money on account of his office.

In this case that Mr. McCormick was receiving it–

David H. Souter:

Yeah, but every… every candidate receives money on account either of the office that he holds or hopes to hold.

Christopher J. Wright:

–And it was told that it couldn’t convict if it was a campaign contribution.

David H. Souter:

But… and maybe I’m just going around in circles here, but I don’t see what the jury had to go on to determine what was or was not a contribution, except this distinction between hope and expectation.

Christopher J. Wright:

Well, Your Honor, let me turn briefly to the tax fraud instructions.

Let me add first that any ambiguity in the campaign contribution charge would be chargeable to petitioner, who again requested those instructions.

David H. Souter:

Yes, but he was… he was also requesting more.

I mean, it’s not as though, at least as I understand it, the petitioner never said implicitly or otherwise that the instructions as they stand are fine.

I think he was saying that the instructions without the addition of some kind of quid pro quo language are misleading.

Isn’t that true?

Christopher J. Wright:

There was one objection to the quid pro quo instruction, yes.

None to the campaign contribution portion of the charge.

On page 37 of the Joint Appendix with respect to the tax fraud charge with jury was told that in order to constitute nontaxable political contributions payments must have been made for one or more of the following purposes.

(1) utilized for generally recognized campaign expenses, regardless of when such expenses were incurred, or (2) used to reimburse the political candidate for out-of-pocket campaign expenses paid by him, et cetera.

In light of those instructions, and the jury convicted petitioner on the tax fraud offense, I think it’s really very clear that the jury could not have concluded that these were in fact campaign contributions.

They just couldn’t have convicted him on the tax fraud charge otherwise.

Christopher J. Wright:

If I may return briefly to the facts–

Anthony M. Kennedy:

So is this a harmless error analysis?

Christopher J. Wright:

–Your Honor, I don’t… the way I read the instructions, I don’t believe there was any error.

I think–

Anthony M. Kennedy:

Well, suppose there had been no conviction, an acquittal on the tax charge?

Christopher J. Wright:

–I still, I believe–

Anthony M. Kennedy:

Then you couldn’t make the argument you just made.

Christopher J. Wright:

–Well, I believe that the argument that the instructions on pages 33 to 34 of the Joint Appendix with respect to the campaign contribution defense to the Hobbs Act violation are perfectly adequate.

So, that is the argument I would make.

I think that the tax fraud instructions are perhaps even more clear.

Sandra Day O’Connor:

Well, Mr. Wright, if we thought a quid pro quo was an element of the offense, then I suppose the instructions were deficient?

Christopher J. Wright:

It depends on exactly what you mean, again, by quid pro quo.

If you mean only vote selling is illegal, the instructions are deficient.

Sandra Day O’Connor:

Well, that there has to be some promise, express or implied, of benefit that the office holder makes in exchange for the payment.

Christopher J. Wright:

Oh, I’m sorry.

If you mean quid pro quo in that sense–

Sandra Day O’Connor:

Yes.

Christopher J. Wright:

–I don’t think that they are deficient.

I think the jury understood that Petitioner was going to continue to support them.

What’s missing in this case–

Sandra Day O’Connor:

Well, did the instructions not say that it is not necessary that the Government prove the defendant promised to commit a quid pro quo?

Christopher J. Wright:

–What the… no, they don’t say that, phrased that way.

What the instructions–

Sandra Day O’Connor:

Well, would you look at the bottom of page 32 and 33 and tell me?

Christopher J. Wright:

–Yes, that’s where I am, Your Honor.

The instructions first say, in the last full paragraph on page 32, that whether a public official accepts a payment for an implicit promise of fair treatment, there is an inherent threat that without such payment the public official would exercise his discretion in an adverse manner.

But it then goes on to reject a defense.

In the next paragraph, it says it’s not necessary that the Government prove that the defendant committed or promised to commit a quid pro quo.

Now, that means it’s not a defense for petitioner here to say he would have supported the doctors anyway.

The fact is he obtained the money from the doctors, knowing that they were giving it to secure his support.

Christopher J. Wright:

Now, he never said I’m going to change my position unless you give me the money.

Sandra Day O’Connor:

Well, but it goes on and says in either event a quid pro quo… it says it… a quid pro quo is not an essential element of the crime.

Now, I guess some courts think it is, and I suppose that’s why we took this case.

Christopher J. Wright:

Well, I don’t think any court thinks it is in a payoff case.

I know of no holding of that sort.

And we agree that if this were a campaign contribution that what was missing here was better evidence of vote selling.

Sandra Day O’Connor:

When you say it isn’t necessary in a payoff case, isn’t that the paradigm example of a quid pro quo?

What is a payoff if it isn’t a quid pro quo?

Christopher J. Wright:

Well, that’s why, Your Honor, I think there–

Sandra Day O’Connor:

I don’t understand.

Christopher J. Wright:

–There are two different sorts of quid pro quo’s that we’re talking about here.

There was a quid pro quo here.

The doctors understood that their payoffs to petitioner were to secure and retain his support of the bill.

But we didn’t–

Sandra Day O’Connor:

Is that not a quid pro quo?

Christopher J. Wright:

–Yes, it is.

Yes, it is, Your Honor.

Sandra Day O’Connor:

And you think the statute doesn’t require that?

Christopher J. Wright:

No, the statute does–

Sandra Day O’Connor:

That there be a quid pro quo?

Christopher J. Wright:

–does require that.

Sandra Day O’Connor:

It does.

Christopher J. Wright:

And the jury was told–

Sandra Day O’Connor:

But the jury was told that there is… that’s not an essential element, that it’s not necessary.

Christopher J. Wright:

–I… I think that this… the jury has been told previously on the color of official right… instructions, rather… that the jury has to understand… or, I’m sorry, the jury has to be convinced that the money was given on account of the official’s office.

That’s under color of office.

What the jury was told, on the quid pro quo instruction that you’re focusing on, was that it’s not a defense for the doctor to say that… I mean for petitioner to say that he would have voted for the doctors anyway, and it’s not a deficiency in the Government’s–

Sandra Day O’Connor:

Well, it doesn’t say that.

It isn’t couched in terms of a defense at all.

Christopher J. Wright:

–I… well, and it’s not a deficiency in the Government’s evidence that we didn’t show that he said give me the money or I will switch position.

Christopher J. Wright:

It’s enough that they gave him the money knowing that… expecting that this would keep him from switching position.

If this were a campaign contribution we would think that we would need clearer evidence of vote selling.

William H. Rehnquist:

Well, Mr. Wright, you know, it isn’t as if the Hobbs Act had a legislative exception for campaign contributions.

I mean, the statute prohibits certain conduct, and you’re agreeing that ordinarily a campaign contribution does not come within that prohibition.

But to charge the jury that the money must have been given on account of the defendant’s office, certainly that covers an awful lot of campaign contributions, doesn’t it?

Christopher J. Wright:

Yes.

William H. Rehnquist:

If you’re… you know, if I’m Senator so-and-so and I go before some group that… raising funds, and they say well, gee, he has sure voted the way we wanted him to the last 6 years, let’s give him some.

Isn’t that giving him money on account of his official… his office?

Christopher J. Wright:

Yes, Your Honor.

And if it’s a campaign contribution it’s not a misuse of office.

William H. Rehnquist:

But you talk as if the term, quote, “campaign contribution” is somewhere defined in a statute.

It isn’t.

Christopher J. Wright:

Let me try to explain where we get it.

In Classic this Court defined the similar phrase under color of laws, under color of State laws by misuse of State law.

And the lower courts have similarly defined under color of official office to mean by misuse of official office.

It is a misuse of official office to accept a payoff to do your job.

It is always a misuse.

It is not a misuse in the example you gave for an elected official to seek a campaign contribution from people whose positions he has supported.

And that… that’s the real difference.

William H. Rehnquist:

Your argument suggests that there is a very clearly established definition of the term campaign contribution which he who runs may read, and therefore we don’t have to worry about the line between campaign contribution and something that violates the Hobbs Act.

It turns out to be a very fuzzy line.

Christopher J. Wright:

Well, there is a line.

I guess I disagree as to just how fuzzy it is.

Any money that is given to be used to defray campaign expenses is, in our view, a campaign contribution, whether or not it violates a State election law, although we would certainly agree that whether–

Byron R. White:

Unless there’s an explicit promise to exchange legislative efforts for the money.

Christopher J. Wright:

–That’s right.

That’s the vote selling example that we think is the one case where a campaign contribution constitutes extortion.

Antonin Scalia:

Mr. Wright, as I… may I call your attention again to page 37 of the Appendix?

You made an argument to the effect that whatever error was made in the campaign contribution section of the instructions was harmless because the jury found that there hadn’t been a campaign contribution anyway, and you quoted that section on 37 where in order to constitute nontaxable political contributions the payment must have been made for one or more of the following purposes.

And then you say the jury, in order to find him guilty of this count, must have found that one of those two existed.

Antonin Scalia:

Correct?

Did I understand your argument correctly?

Christopher J. Wright:

The jury must have rejected that it was used for generally recognized campaign expenses or to reimburse the candidate.

If it found that he had… that he had either used them to pay campaign expenses or to reimburse himself, then it would have concluded that they were nontaxable, and would not have convicted him of tax fraud.

Antonin Scalia:

That’s right, but they would have been non-taxable not because they were not political contributions originally when made, but because they were not nontaxable political contributions, because although they may have been contributed for his campaign, he converted them to his own use.

That would make them taxable, but it wouldn’t prove that the jury did not find them to have been political contributions originally.

Christopher J. Wright:

Well, I don’t think that that’s right with the instruction you have read, Your Honor.

Now, on the prior page there is an instruction that says that conversion would make a campaign contribution taxable.

However, Ms. Beatty suggested that there was simply no evidence for such a, an instruction, and I’d agree that that was right.

They certainly never argued that he accepted a campaign contribution and then pocketed it.

Their argument has always been… well, of co rse, first their argument was he didn’t take the money.

Antonin Scalia:

But the issue is what the jury understood by these instructions.

And at the bottom of page 36 the judge says if you find that they were campaign contributions you must further be convinced that the… that he converted them.

And that’s what the later instruction goes to: even if they were campaign contributions.

I don’t see that this, that the jury’s conviction on the later count necessarily shows that they came to any conclusion on campaign contributions, other than the kind of conclusion that would have been affected by the campaign contribution instructions, which didn’t require a quid pro quo to invalidate it.

Christopher J. Wright:

I’m not sure I followed all that.

I would agree that there are two different kinds of instructions here.

One is a conversion instruction and one is if these were used for campaign expenses or to reimburse the candidate, then they are not taxable in any event.

There was no conversion argument here.

There was a reimbursement argument in this case.

We think that the jury clearly rejected that reimbursement argument.

Byron R. White:

Well, Mr. Wright, suppose we… suppose we think the jury might have found that these were campaign contributions, but that there was a quid pro quo, based on these facts?

I take it you would say to… that the jury was wrong as a matter of law?

Christopher J. Wright:

That these were campaign contributions, but that there was a quid pro quo?

Byron R. White:

Based on these facts.

Christopher J. Wright:

I don’t think that the jury could have found that in light of these instructions.

Or I don’t think that they did.

Byron R. White:

I thought you a while ago said that if it’s a campaign contribution there has to be an explicit statement of the exchange, and I thought you meant that on the facts of this case there wasn’t such an explicit–

Christopher J. Wright:

We… that’s right, we did not present evidence, and I am sorry, when I said quid pro quo again I meant the heightened sort of quid pro quo.

Byron R. White:

–All right, but there was not evidence–

Christopher J. Wright:

Mr. McCormick–

Byron R. White:

–in the campaign contribution there was not evidence to justify a conviction in this case.

Christopher J. Wright:

–Yes, we did not show that the doctors reasonably believed that Mr. McCormick was definitely going to change position unless they gave him this.

We simply argued they gave him the money to secure his support, but it wasn’t clear vote selling.

John Paul Stevens:

Mr. Wright, can I ask you a rather basic question?

In the court of appeals, as I understand the opinion, the basic argument the appellate made was there wasn’t sufficient evidence to support the conviction.

I don’t understand from the court of appeals’ opinion that there was any argument about instructions at all.

Am I right, or did they specifically challenge particular instructions that were erroneously given or erroneously failed to be given?

Christopher J. Wright:

They objected to one portion of an argument, of an instruction respecting the quid pro quo instructions.

John Paul Stevens:

They objected in the trial court?

Christopher J. Wright:

Yes.

The first time–

John Paul Stevens:

And did they argue that on appeal in the court of appeals?

Christopher J. Wright:

–I believe that they mentioned that in their brief, but–

John Paul Stevens:

Because the court of appeals… reading the court of appeals’ opinion, one would get the impression that the case was argued on the assumption that the jury was properly instructed.

Christopher J. Wright:

–Yes.

John Paul Stevens:

And I don’t find in your opponent’s brief a particularization of the instructions that he contends were erroneously given or failed to be given.

Christopher J. Wright:

Oh, no, no.

They… the focus of their argument has always been that this–

John Paul Stevens:

That the evidence is insufficient–

Christopher J. Wright:

–is a campaign contribution, not a payoff.

That’s right, and that the evidence is insufficient to support the conclusion that it was a payoff.

That’s certainly how the case was argued in the court of appeals, and that’s how it was argued in the… in the district court once they gave up the position that the money had never been paid at all, halfway through the trial.

Anthony M. Kennedy:

–I’m not sure it follows that because the legislator said he wouldn’t change his position that there is still not, that you still can’t prove some quid pro quo.

Christopher J. Wright:

I’m not sure that we couldn’t have proved a quid pro quo, but we didn’t… we didn’t go for the very strict… we proved that this money was given to secure his support.

We didn’t prove that he explicitly said I’m going to change position, or we didn’t meet that heightened requirement that we think might well be needed in a case of a campaign contribution.

Anthony M. Kennedy:

But you seem to be saying that a quid pro quo is very constrictive of this statute, as exemplified by your answer to Justice O’Connor, that oh, well, a payoff is not a quid pro quo… which is something I still can’t understand.

And here it seems to me that there can very well be a quid pro quo if he simply says he’s going to maintain his position with vigor, and that that is quite a plausible requirement to put into this statute.

Christopher J. Wright:

That’s true, Your Honor.

We… we’re very sensitive about not, not criminalizing ordinary campaign behavior, and we want to make quite clear that we don’t think it’s a misuse of office… I believe it was the Chief Justice’s hypothetical… for a candidate to stand in front of a group and say I’m a supporter of your position and I’m running for reelection and you ought to contribute to my campaign.

Christopher J. Wright:

But again, that’s not this case, where Mr. McCormick went to the doctors’ lobbyist, who had previously picked up a $766 hotel tab for him, thus indicating his willingness to dispense favors, and said I’ve paid about $2,000 out of my own pocket and I haven’t heard from your doctors.

They deliver $2,900 in cash the next day, which is even more than he claimed he’d spent.

They deliver it in $100 bills, placed in sealed envelopes, personally delivered to him.

They make three more payments later on, long after the election, and petitioner finally says the debt is paid, and they cease to make payments.

Now, under those facts we think it’s plain that this was a payoff, not a campaign contribution, and that it was a misuse of office for him to obtain them.

John Paul Stevens:

Would you just help me on the term payoff?

By that I take it you mean money that was to be received and used by him personally, as opposed to reimbursing campaign expenditures?

Christopher J. Wright:

Yes.

Money given to him unconditionally, to be used for any purpose he wanted.

John Paul Stevens:

If he proved that he had in fact used it for campaign purposes, would it be a payoff?

Christopher J. Wright:

If it was given to him as a payoff and he happened to pay them off… to use it towards a campaign contribution, yes, it would still be a payoff.

I think that might get him off the tax fraud charge.

I’m not sure of that.

But of course, the jury found that this was a payoff, and also convicted him of tax fraud in this case.

So it clearly rejected his argument, as did the court of appeals, and we think it’s decision is reasonable.

If there are no further questions, I have nothing more.

William H. Rehnquist:

Thank you, Mr. Wright.

Mr. di Trapano, do you have rebuttal?

You have 3 minutes remaining.

Rudolph L. di Trapano:

Thank you, Your Honor.

I would just like to make–

John Paul Stevens:

Mr. di Trapano, before you start may I just ask you to tell us specifically which instructions you objected to that… and argued in the court of appeals were erroneously given, and you still pertain?

Rudolph L. di Trapano:

–We devoted a third of our brief to the instructions in the court of appeals.

The court never mentioned it.

John Paul Stevens:

You did?

The court of appeals never mentioned the issue?

Rudolph L. di Trapano:

No.

It didn’t address it at all.

John Paul Stevens:

You don’t identify in your brief here which instructions you thought were erroneously given, do you?

Rudolph L. di Trapano:

Well, what we didn’t… the court of appeals didn’t rule on it and we don’t address it in our… in this brief, except we do–

John Paul Stevens:

So your argument is basically not that the jury was improperly instructed, but rather that the evidence in the record is insufficient to support the conviction?

Rudolph L. di Trapano:

–No, we objected to the… we vigorously objected to the court defining or instructing the jury with respect to what a voluntary payment, that it… the expectation of benefit took it outside the ambit of a campaign contribution.

We debated that, vigorously objected to it.

We fought over… see, our trial judge did not let us read the charge he was going to give the jury.

We have to… after the charge, he says what he’s going to do… for example, we didn’t… specific intent was just… was charged to the jury without our having any prior knowledge of what the instruction was going to be.

But we did object to the instruction.

We offered instructions that made quid pro quo an essential… and quid pro quo has to be conditional.

And that was our… that was our argument.

We did object to it, Your Honor, and we objected vigorous to it, and devoted a third of our brief.

Not mention it, as the Assistant Solicitor says.

We devoted a substantial portion of our brief arguing over the instructions that were given to the jury.

We objected vigorously to them, to the instruction.

The one instruction was where the court said every payment… any payment made, in focusing on the official office is illegal and comes within the purview of the color of official right provision.

But moreover, see, the Government charged… the Government argued to the jury, he says we don’t have to show that he gave some quid pro quo or threatened any action.

Simply that when it was paid the doctors paid it with an expectation of benefit.

That’s what they argued here.

Whether it’s a campaign contribution makes no difference, either if it was extorted or under color of official right.

That’s what the Government argued in their instructions, that’s what they argued to the jury, and the defendant was prejudiced by those instructions.

The court, moreover, as Justice Scalia was questioning about the tax fraud case, again voluntary was… on four occasions that definition was given to the jury that voluntary is that which is given without expectation of benefit.

And if they found that it was a contribution with that definition, then he was… then he was guilty of the tax fraud case.

The jury was, in our opinion, and as we point out in our brief to the Fourth Circuit, was badly instructed with respect to those matters I have just mentioned.

Thank you very much, Your Honor.

William H. Rehnquist:

Thank you, Mr. di Trapano.

The case is submitted.