United States v. Edward O'Grady

742 F.2d 682, 1984 U.S. App. LEXIS 20565

• Court: Court of Appeals for the Second Circuit
• Decided: July 12, 1984
• Docket: 782, Docket 82-1344
• Status: Published

Opinions

ON REHEARING EN BANC

. , . . , , MESKILL, Circuit Judge, joined by FEINBERG, Chief Judge, IRVING R. KAUFMAN, OAKES, JON 0. NEWMAN, KEARSE, CARDAMONE, PIERCE, WINTER and GEORGE C. PRATT, Circuit Judges.

This is an appeal from a judgment entered in the United States District Court for the Eastern District of New York, Platt, J., convicting appellant after a jury trial of extortion under color of official right in violation of the Hobbs Act, 18 u.S.C. § 1951 (1982). A divided panel of this Court affirmed the conviction of O’Grady on August 10, 1983. At the request of a member of this Court, a poll of the judges in regular active service was taken to determine if the case should be reheard en banc. A majority voted for the rehearing. The Court called for and received new briefs from the parties which addressed the issues discussed in the majorjty and dissenting opinions. Sitting en b we now vacate the panel opinioil) reverse ^ conviction and remand to the , , „ , . , , ,, distncit court for a ^ *ia1’ because thef was Plam error m the charSe Slven to the )ury-

BACKGROUND

In 1972 the New York City Transit Au. thority (NYCTA) executed a contract with Pullman Standard under which NYCTA agreed to purchase from Pullman Standard 745 subway carg at a cost of nearly $2i0 million.¹ Edward 0’Grady was employed fcy ^ NYCTA ag superintendent of the Quality Control Section, Department of New Car Engineering. In 1981 a federal grand jury indicted O’Grady for violating the Hobbs Act by accepting an assortment 0f benefits from companies under contract to provide subway cars to the NYCTA. °'®rad!' waS by *iury' '°"nd g"iltj and sentenced to one year probation plus a «i n not) fine ;>iu’uuu Ime-

The Hobbs Act proscribes extortion affecting interstate commerce, whether by “wrongful use of actual or threatened force, violence, or fear, or under color of official right.”² 18 U.S.C. § 1951(b)(2) (1982). The Act is a powerful and effective law enforcement tool, providing for up to twenty years imprisonment, a $10,000 fine, or both. It has become a principal weapon in the government’s arsenal against corruption in public affairs.

In United States v. Margiotta, 688 F.2d 108 (2d Cir.1982), cert. denied, 461 U.S. 913, 103 S.Ct. 1891, 77 L.Ed.2d 282 (1983), this Court held that extortion “under color of official right” occurs “when a public official makes wrongful use of his office,” whether or not “the wrongful use of official power [is] accompanied by actual or threatened force, violence, or fear.” Id. at 130-31. We are now asked to decide whether extortion under color of official right occurs when a public official merely accepts unsolicited benefits knowing that they were given because of his public office. We hold that it does not.

O’Grady had been involved in the contract negotiations and the ultimate selection of Pullman-Standard as the prime contractor for the purchase of the subway cars. Pullman-Standard engaged numerous subcontractors to help design, manufacture and assemble the new subway cars for what was commonly known as the R-46 project. Throughout the project, O’Grady was responsible for ensuring vendor compliance with contract specifications. Before any component of the new subway cars was put into full production, it had to be inspected and approved by O’Grady’s department. If a component was defective from either a technical or aesthetic viewpoint, or failed to comply with contract specifications, O’Grady could force the vendor to make the necessary modifications at its own cost. The inspection process continued from the design stage through final production.

O’Grady’s indictment charged him with “attempting to obtain and obtaining the benefits valued at approximately Thirty Thousand Dollars ($30,000) in entertainment, including but not limited to lunches, dinners, sports events, golf outings, weekend vacations and trips, from [vendors involved in the R-46 project], with the consent for such entertainment having been wrongfully induced under color of official right.”³ See App. for Appellant at 8. At trial, the government proved that during the nine year period covered by the indictment, O’Grady received from Pullman-Standard and its subcontractors over forty fully paid trips to various resorts throughout the country,⁴ two “all events” season tickets to Madison Square Garden, countless rounds of free golf, meals and other benefits, altogether worth in excess of $34,-000. O’Grady willingly accepted all of these benefits despite having instructed his subordinates not to accept anything from R-46 contract vendors.

O’Grady admitted having received the benefits, but he denied wrongdoing. He maintained that entertaining customers was an industry wide practice and that he was only one of many NYCTA officials who had received benefits from R-46 vendors. The evidence adduced at trial supported O’Grady's contention. Several R-46 contract vendors testified that it was company policy to entertain customers and that many NYCTA officials, including O’Grady’s supervisors, had also been treated to meals, entertainment and trips.⁵ From the vendor’s perspective, the expense of entertaining customers was offset by the positive customer-vendor relationship and goodwill that it purchased. Moreover, the vendors could in most cases deduct for tax purposes the cost of the entertainment as an ordinary and necessary business expense.

O’Grady held the reins on the production process and he would often supervise on-site inspections himself. Vendors treated O’Grady, who was known to be an avid golfer, to countless rounds of golf in conjunction with his on-site inspection tours. Although most vendors considered O’Grady a fair man, “[h]e was a tough man when it came to enforcing the rights of the [NYC-TA].” ⁶ Evidently it was difficult to sit down and do business with O’Grady as he was a very busy man. Vendors viewed the meals, trips and other entertainment conferred on O’Grady as a way to get his ear. There is no evidence in the record that O’Grady ever demanded or asked for a free meal, an expense-paid trip or a complimentary round of golf. The benefits he received were freely and willingly offered by the vendors. In the words of Pullman-Standard’s project manager, “[i]t was our normal way of doing business.” Trial Tr. at 187.

The trial judge instructed the jury that extortion under color of official right requires proof that (1) the defendant obtained property of another with his consent; (2) the consent was induced under color of official right; (3) the defendant knowingly and willfully obtained the property by those means; and (4) the defendant’s actions in obtaining the property affected interstate commerce. O’Grady disputed only two elements. He denied having induced the benefits he received and having known the benefits were given to him because of his public office. He defended on the basis that the indictment merely described normal business practice. The district court instructed the jury:

If you find beyond a reasonable doubt that a company gave any benefit that it is alleged to have given in the indictment because the company reasonably believed that, in his official capacity, Mr. O’Grady had the power to take or withhold action that could hurt or benefit the company, or to affect or influence the inspection and delivery of the R-46 subway car, then you may find that the consent of the bestowing company, was induced under color of official right, and if you further find beyond a reasonable doubt that the defendant knew that that [was] the reason travel and entertainment benefits were given to him, then the second element is satisfied; but if either or both of these facts has not been so proven beyond a reasonable doubt, then it is not, and you must find for the defendant.

Trial Tr. at 1785-86. The district court explained that “[t]he Government need not show that the defendant in words or otherwise, induced, requested, demanded, or solicited the benefits,” id. at 1784, or that O’Grady “was influenced in his decisions by any favor he received,” id. at 1783. O’Grady’s attorney forcefully objected to the charge delivered by the district court⁷ and offered his opinion that under the charge given, “President Reagan and Mrs. Reagan must be convicted, absolutely must,” as must any “public official, who takes a cigarette or a cigar from anybody else.” Id. at 1818-19. The jury returned a verdict of guilty and the district court thereafter sentenced O’Grady to a one year term of probation and a $10,000 fine. This appeal followed.

DISCUSSION

O’Grady argues that his conduct did not constitute extortion under color of official right. He urges the abandonment of precedent in this Circuit interpreting the Hobbs Act broadly, see United States v. Margiotta, 688 F.2d 108 (2d Cir.1982), cert. denied, 461 U.S. 913, 103 S.Ct. 1891, 77 L.Ed.2d 282 (1983); United States v. Trotta, 525 F.2d 1096 (2d Cir.1975), cert. denied, 425 U.S. 971, 96 S.Ct. 2167, 48 L.Ed.2d 794 (1976), in favor of a narrower reading that would limit the Act’s scope to extortion accompanied by some form of duress. Relying heavily on the dissent of Judge Aldisert in United States v. Cerilli, 603 F.2d 415 (3d Cir.1979), cert. denied, 444 U.S. 1043, 100 S.Ct. 728, 62 L.Ed.2d 728 (1980) (citing United States v. Mazzei, 521 F.2d 639 (3d Cir.) (en banc) (Gibbons, J., dissenting), cert. denied, 423 U.S. 1014, 96 S.Ct. 446, 46 L.Ed.2d 385 (1975)), O’Grady argues that Congress intended to rely on the New York law of extortion to define the crime under the Hobbs Act. Under New York law, extortion under color of official right required the unlawful seizure of personal property, the receipt of an unauthorized fee by misrepresentation or the official’s use of force or fear. Cerilli, 603 F.2d at 433 (Aldisert, J., dissenting). O’Grady claims that United States v. Kenny, 462 F.2d 1205 (3d Cir.), cert. denied, 409 U.S. 914, 93 S.Ct. 233, 34 L.Ed.2d 176 (1972), deviated from the congressional intent when it stated that extortion did not require force, threats or use of fear. We found these arguments unpersuasive in United States v. Margiotta, 688 F.2d at 130-31, and see no reason to overrule that decision.

Having rejected O’Grady’s broad arguments, however, we nonetheless hold that the district court erroneously instructed the jury that the mere acceptance of benefits by a public official is extortion under color of official right if the official knew that his office was the motivation behind the giving of the benefits. “Extortion ‘under color of official right’ is committed when a public official makes wrongful use of his office to obtain money not due him or his office.” United States v. Margiotta, 688 F.2d 108, 130 (2d Cir.1982) (emphasis added), cert. denied, 461 U.S. 913, 103 S.Ct. 1891, 77 L.Ed.2d 282 (1983). The conduct proscribed by the Hobbs Act is the wrongful use of public office, not merely the acceptance of benefits. Although receipt of benefits by a public official is a necessary element of the crime, there must also be proof that the public official did something, under color of his public office, to cause the giving of benefits.

Extortion under color of official right was added to the federal criminal law in the 1940s to combat racketeering in interstate commerce. Anti-Racketeering Act of 1946, Pub.L. No. 79-486, § 1(c), 60 Stat. 420 (1946) (amending the Anti-Racketeering Act of 1934, Pub.L. No. 73-376, 48 Stat. 979 (1934)). See United States v. Cerilli, 603 F.2d at 431 (Aldisert, J., dissenting) (quoting United States v. Local 807 of International Brotherhood of Teamsters, 315 U.S. 521, 529, 62 S.Ct. 642, 645, 86 L.Ed. 1004 (1942)). The federal courts have converted the crime from a narrow prohibition aimed at public officials who demand or receive a fee not due them or their office, or who extort money by force or violence, into a broad license for “federal authorities to police influence peddling in the political processes of the states.” United States v. Mazzei, 521 F.2d at 652 (Gibbons, J., dissenting); see Ruff, Federal Prosecution of Local Corruption: A Case Study in the Making of Law Enforcement Policy, 65 Geo.L.J. 1171, 1183 (1977).

The practical effect of the district court’s instruction is to further extend the reach of the statute and to impose upon all public officials an affirmative obligation not to accept benefits of any type or form. The statute is thus transformed from a vehicle to eradicate extortion and robbery in interstate commerce into a professional ethics standard governing public officials.

The instruction of the district court does not square with this Court’s decision in United States v. Margiotta, 688 F.2d 108 (2d Cir.1982), cert. denied, 461 U.S. 913, 103 S.Ct. 1891, 77 L.Ed.2d 282 (1983). In Margiotta, this Court examined the government’s burden of proof in a Hobbs Act prosecution for extortion under color of official right. Joseph Margiotta was Chairman of the Republican Committee of Nassau County and the Town of Hemp-stead, New York. Although not an elected official, Margiotta wielded considerable control over certain public officials and governmental functions in those municipalities. Margiotta had negotiated a deal with the Williams Agency, an insurance broker, under which he agreed to appoint the Agency as Broker of Record with full power to place insurance on all municipal properties in exchange for the Agency’s promise to designate fifty percent of its insurance commissions to be distributed at Margiotta’s direction to others as political favors. Margiotta was indicted for, among other things, “violating the Hobbs Act by inducing the Williams Agency to make the payments of the insurance commissions under color of official right.” Id. at 114. Margiotta defended, unsuccessfully, on the ground that his appointment of the Williams Agency as Broker of Record was not contingent upon a secret agreement to divvy insurance commissions, and that “commission sharing among brokers was a good faith continuation of a long-standing and widely-known political patronage arrangement in New York.” Id. at 119.

Margiotta’s conviction was affirmed on appeal. Writing for this Court, Judge Kaufman held that “[affirmative pressure in the form of force, fear, or direct solicitation” is not necessary to establish inducement because the power inherent in public office supplies the necessary pressure or threat. Id. at 132. Instead, “it is the utilization of the power of public office to induce consent to the payments that is the gist of an offense of obtaining money ‘under color of official right.’ ” Id. The evidence established that the Williams Agency consented to the kickback arrangement only because Margiotta would have, as he testified, replaced it as Broker of Record had it not consented. Consequently, there was sufficient evidence to support a finding that “power of office [was used] in such a manner that would induce the payments.” Id. at 133. Thus, Margiotta was guilty of violating the Hobbs Act not because he was powerful but because he used the power of public office to induce payments not due him or his office.

The district court’s charge to the jury in this case permitted the jury to find O’Grady guilty of extortion under color of official right absent any proof that he wrongfully used his office to induce the benefits he received. Essentially, the district court equated the mere acceptance of benefits by a public official with wrongful use of public office and permitted the jury to infer inducement if it found that the R-46 vendors bestowed benefits on O’Grady because of his public office and that O’Grady knew what motivated the bestowal. The district court instructed the jury:

The Government need not show that the defendant in words or otherwise, induced, requested, demanded, or solicited the benefits from the companies involved.

So long as the motivation for the bestowal of any of the benefits focused on Mr. O’Grady’s office — that is, so long as the office or the fact of his official position, induced the payments — and so long as the defendant knew such was the case — then the conduct falls within the ambit of the Statute.

Trial Tr. at 1784.

As Margiotta made clear, to prove the crime of extortion under color of public office the government must show that the public official induced the benefits received.⁸ The fact of public office supplies the potential threat or force necessary, but it is the wrongful use of that office to induce benefits that constitutes the crime. The charge given by the district court eliminated the government’s burden of proving that O’Grady used his office to induce or obtain the benefits he received. Judge Kaufman’s opinion in United States v. Margiotta is replete with references to this indispensable element of the crime: “[e]xtortion ‘under color of official right’ is committed when a public official makes wrongful use of his office to obtain money not due him or his office,” 688 F.2d at 130; “it is the utilization of the power of public office to induce consent to the payments that is the gist of [the] offense,” id. at 132; “a public official may be guilty ... if the payments are motivated as a result of his exercise of the powers of his public office,” id. at 133; and, public officials are guilty if they “use their power of office in such a manner that would induce the payments,” id.

While the government is not required to prove that the public official demanded or directly solicited the benefits received, or that he offered a specific quid pro quo in exchange for the benefits, United States v. Trotta, 525 F.2d 1096, 1100 (2d Cir.1975), cert. denied, 425 U.S. 971, 96 S.Ct. 2167, 48 L.Ed.2d 794 (1976), the government must show that the power of public office was misused in such a way as to induce the giving of benefits. Cf. United States v. Dozier, 672 F.2d 531, 537 (5th Cir.) (“the prohibited exchange is the same: a public official may not demand payment as inducement for the promise to perform (or not to perform) an official act”), cert. denied, 459 U.S. 943, 103 S.Ct. 256, 74 L.Ed.2d 200 (1982); United States v. Trotta, 525 F.2d at 1100 (“the pressure exerted by Trotta by means of the power of his public office to induce the payment of money is, in itself, the misuse of the office”); United States v. Mazzei, 521 F.2d 639, 643 (3d Cir.) (en banc) (jury could conclude that extortion under color of official right occurred “so long as it found that [the extorted party] held, and defendant exploited, a reasonable belief that ... the power in fact of defendant’s office included ... effective authority”), cert. denied, 423 U.S. 1014, 96 S.Ct. 446, 46 L.Ed.2d 385 (1975).

We recognize that several other courts of appeals have explicitly rejected the notion that proof of inducement is necessary. See, e.g., United States v. Jannotti, 673 F.2d 578, 595 (3d Cir.) (en banc), cert. denied, 457 U.S. 1106, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982); United States v. Hedman, 630 F.2d 1184, 1195 (7th Cir.1980), cert. denied, 450 U.S. 965, 101 S.Ct. 1481, 67 L.Ed.2d 614 (1981); United States v. Butler, 618 F.2d 411, 417-18 (6th Cir.), cert. denied, 447 U.S. 927, 100 S.Ct. 3024, 65 L.Ed.2d 1121 (1980); United States v. Price, 617 F.2d 455, 458 (7th Cir.1979); United States v. Braasch, 505 F.2d 139, 151 (7th Cir.1974), cert. denied, 421 U.S. 910, 95 S.Ct. 1561, 43 L.Ed.2d 775 (1975). However, we do not read those decisions to permit a conviction for extortion under col- or of official right absent evidence that the public official misused his office to obtain the benefits. Certainly the facts of those cases, and of most reported decisions construing extortion under color of official right, establish conduct from which inducement can readily be inferred. See United States v. Jannotti, 673 F.2d at 596 (payment made after “assurances that there would be no obstacles” to construction of hotel project); United States v. Hedman, 630 F.2d at 1188-91 (city building inspectors accepted concealed payoffs in return for nonenforcement of housing code); United States v. Butler, 618 F.2d at 418 (town public works commissioner accepted money from developer in exchange for moving up priority of his projects); United States v. Price, 617 F.2d at 458 (victim testified that if he did not pay city electrical inspector money, he would later have to pay “twice something for the same job”); United States v. Braasch, 505 F.2d at 151 (protection money extorted from bar owners by police officers); see also United States v. Dozier, 672 F.2d 531, 538 (5th Cir.) (state commissioner of agriculture “asked for ten thousand dollars in return for granting a charter to the owner of a livestock auction barn”), cert. denied, 459 U.S. 943, 103 S.Ct. 256, 74 L.Ed.2d 200 (1982); United States v. Barber, 668 F.2d 778, 781 (4th Cir.) (state liquor control commissioner removed quantities of state-owned liquor from state warehouses and subsequently billed the liquor suppliers for the shortage), cert. denied, 459 U.S. 829, 103 S.Ct. 66, 74 L.Ed.2d 67 (1982); United States v. Scacchetti, 668 F.2d 643, 646 (2d Cir.) (judge offered to assist automobile businessman with a license suspension case in return for free auto repair service), cert. denied, 457 U.S. 1132, 102 S.Ct. 2957, 73 L.Ed.2d 1349 (1982); United States v. French, 628 F.2d 1069, 1072 (8th Cir.) (city marshal accepted cash in return for settlement of forfeited bonds), cert. denied, 449 U.S. 956, 101 S.Ct. 364, 66 L.Ed.2d 221 (1980); United States v. Williams, 621 F.2d 123, 125-26 (5th Cir.1980) (school board member asked for and received airline tickets and cash from contractors doing business with the school board), cert. denied, 450 U.S. 919, 101 S.Ct. 1366, 67 L.Ed.2d 346 (1981); United States v. Grande, 620 F.2d 1026, 1031 (4th Cir.) (reasonable inference that city housing director misused office by accepting money from prospective contractors in return for supplying cost data on prospective projects), cert. denied, 449 U.S. 830, 919, 101 S.Ct. 98, 317, 66 L.Ed.2d 35, 146 (1980); United States v. Summers, 598 F.2d 450, 452-53 (5th Cir.1979) (town public works official told contractor to “come up with five percent of the total bid price” if he wanted to get the contract); United States v. Cerilli, 603 F.2d 415, 418 (3d Cir.1979) (state transportation official demanded payments as a condition to state’s leasing of privately owned snow removal equipment), cert. denied, 444 U.S. 1043, 100 S.Ct. 728, 62 L.Ed.2d 728 (1980); United States v. Wright, 588 F.2d 31, 34-35 (2d Cir.1978) (school board official’s exchange of letter of intent to renew a contract for cash was evidence of extortionate demand), cert. denied, 440 U.S. 917, 99 S.Ct. 1236, 59 L.Ed.2d 467 (1979); United States v. Harding, 563 F.2d 299, 301 (6th Cir.1977) (real estate commission’s executive director sold copies of licensing exam and answers in advance of exam date), cert. denied, 434 U.S. 1062, 98 S.Ct. 1235, 55 L.Ed.2d 762 (1978); United States v. Adcock, 558 F.2d 397, 400 (8th Cir.) (state liquor commissioner took kickbacks in return for his persuading liquor commission to purchase victims’ wine), cert. denied, 434 U.S. 921, 98 S.Ct. 395, 54 L.Ed.2d 277 (1977); United States v. Brown, 540 F.2d 364, 372-73 (8th Cir.1976) (city building commissioner proposed scheme to funnel fees for demolition work to him which construction companies agreed to for fear of retribution); United States v. Hall, 536 F.2d 313, 317-18, 320-21 (10th Cir.) (allegation that governor in exchange for cash agreed to exert his influence for the benefit of the victims), cert. denied, 429 U.S. 919, 97 S.Ct. 313, 50 L.Ed.2d 285 (1976); United States v. Hathaway, 534 F.2d 386, 394 (1st Cir.) (state redevelopment authority director “used the office of [redevelopment director] to initiate and induce payments” in exchange for fair consideration of contract proposals), cert. denied, 429 U.S. 819, 97 S.Ct. 64, 50 L.Ed.2d 79 (1976); United States v. Trotta, 525 F.2d 1096, 1097-98 (2d Cir.1975) (indictment charged town public works commissioner with demanding and obtaining political contributions from contractors under his control), cert. denied, 425 U.S. 971, 96 S.Ct. 2167, 48 L.Ed.2d 794 (1976); United States v. Mazzei, 521 F.2d 639, 643 (3d Cir.) (en banc) (victim testified that he gave state senator cash because he “thought that was the method that state leases were handled”), cert. denied, 423 U.S. 1014, 96 S.Ct. 446, 46 L.Ed.2d 385 (1975); United States v. Price, 507 F.2d 1349, 1350 (4th Cir.1974) (per curiam) (payment of cash to county councilman in exchange for assurances that occupancy permit would be obtained); United States v. Crowley, 504 F.2d 992, 995 (7th Cir.1974) (police officers paid protection money); United States v. Staszcuk, 502 F.2d 875, 878 (7th Cir.1974) (alderman accepted cash in return for not opposing zoning ordinance amendments), modified in part on other grounds, 517 F.2d 53 (en banc), cert. denied, 423 U.S. 837, 96 S.Ct. 65, 46 L.Ed.2d 56 (1975); United States v. Hyde, 448 F.2d 815, 833 (5th Cir.1971) (state attorney general threatened loan companies with lawsuits if cash payments were not made), cert. denied, 404 U.S. 1058, 92 S.Ct. 736, 30 L.Ed.2d 745 (1972).

Our prior decisions reinforce our conclusion that wrongful use of office involves some action by the public official to induce the benefits given. The government mistakenly relies on United States v. Trotta, 525 F.2d 1096 (2d Cir.1975), cert. denied, 425 U.S. 971, 96 S.Ct. 2167, 48 L.Ed.2d 794 (1976), where we reasoned that an “indictment is [not] defective because of its failure to allege ‘a specifically identifiable misuse of office,’ in which [the public official] engaged, as an unlawful quid pro quo or a consideration in the nature of official action running from [the public official] to [the victim] in return for the payment of the money not lawfully owed.” Id. at 1100. However, the indictment in Trotta did allege that the public official demanded and obtained cash to which neither he nor his office was entitled. That demand, coupled with the power of his public office, was a sufficient allegation of extortion. Id. (“the pressure exerted by [the public official] by means of the power of his public office to induce the payment of the money is, in itself, the misuse of the office”). Similarly, in United States v. Scacchetti, 668 F.2d 643 (2d Cir.), cert. denied, 457 U.S. 1132, 102 S.Ct. 2957, 73 L.Ed.2d 1349 (1982), we characterized the public official’s role in committing extortion under color of official right as follows:

The essential in the statute is the use of the office through acts unrelated to the duties of the public official but which could only be undertaken because of his official position. So long as the motivation for the payment focuses on the office of the recipient, the conduct falls within the ambit of the Hobbs Act. The government’s proof was in this instance sufficient to demonstrate that the defendant made his demands in connection with the misuse of the authority of his public office.

Id. at 647. Thus, extortion under color of official right begins with the public official, not with the gratuitous actions of another. See United States v. Barber, 668 F.2d 778, 783 (4th Cir.) (voluntary payment of money is not extortion), cert. denied, 459 U.S. 829, 103 S.Ct. 66, 74 L.Ed.2d 67 (1982).

There is no question that Congress has the power to proscribe the receipt of gratuities by federal officials and perhaps may use the commerce power to proscribe some instances of such receipt by state and local officials. It used the former power in 1962 when it enacted 18 U.S.C. § 201 (1982) as part of a comprehensive regulatory scheme governing the conduct of federal officials. 18 U.S.C. § 201(g) proscribes “a public official’s receipt of a gratuity, to which he was not legally entitled, given to him in the course of his everyday duties ... [if] he was in a position to use his authority in a manner which could affect the giftgiver.” United States v. Niederberger, 580 F.2d 63, 69 (3d Cir.) (IRS employee convicted for receiving gratuities from oil corporations in the form of golfing trips), cert. denied, 439 U.S. 980, 99 S.Ct. 567, 58 L.Ed.2d 651 (1978).

A public official convicted of violating 18 U.S.C. § 201(g) can be fined $10,000 or imprisoned for two years or both. The maximum penalty for a violation of the Hobbs Act is a $10,000 fine or twenty years imprisonment or both. The elements which the government must prove in a section 201(g) prosecution are remarkably similar to those in a Hobbs Act prosecution as erroneously interpreted by the district court in its instruction to the jury.⁹

Under the district court’s jury instruction a federal official can be convicted of extortion under color of official right or illegal receipt of gratuities with evidence that he accepted benefits knowing they were given because of his official position. Yet, a federal official is subject to twenty years imprisonment plus a $10,000 fine under the Hobbs Act whereas he might receive at most two years imprisonment plus a $10,-000 fine if prosecuted for the same conduct under 18 U.S.C. § 201(g).

The enactment of 18 U.S.C. § 201(g) in 1962 prohibiting the receipt of gratuities by federal officials is a clear indication that Congress did not believe that the Hobbs Act prohibits such conduct. To expand the Hobbs Act’s coverage beyond that intended by Congress oversteps the proper role , of the judiciary. See In re Grand Jury Subpoena (PErsico), 522 F.2d 41, 65 (2d Cir.1975) (“in moving beyond the confines of literal statutory language and of legislative history, courts must proceed cautiously for fear of overreaching their traditional role”).

We realize that inducement can take many forms, some more subtle than others. 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. If the evidence established that O’Grady clearly created the impression, not by words but by deeds, that vendors whose business fortunes with the NYCTA depended on him were expected to make generous “gifts” to him, then O’Grady could not escape conviction. It would be easy for the government to prove, if it were so, that those who gave, profited, and those who did not, lost. However, there was very little evidence that O’Grady asked for or demanded benefits, that he offered quid pro quo in exchange for benefits, that he forestalled official action in anticipation of receiving benefits, or that he misused his public office in any way. Moreover, New York Air Brake, the most generous vendor ($14,580.71 of the $34,199.86 in benefits detailed in the indictment), played an insignificant role in the R-46 contract; its president testified that “New York City Transit has never been an important customer of ours. We have not gotten nothing [sic] but test quantities and token application there.” Trial Tr. at 957. Yet, the prime contractor, Pullman-Standard, whom one would expect would have been the most generous if in fact its fortunes turned on pleasing O’Grady, accounted for only $5,903.74 of the $34,199.86 in benefits given to O’Grady over the nine year project. That is not to say that O’Grady could not have been found guilty on the facts of this case if the jury had been properly charged. One vendor testified that O’Grady once complained to him of insufficient generosity and that same vendor testified that on one occasion O’Grady’s attitude toward his proposal improved after O’Grady was taken on an expense paid trip to Florida.¹⁰ Overall, however, the evidence suggested only that O’Grady, like other officials of NYCTA, accepted what was offered. There is far less evidence of inducement in this case than in other cases where Hobbs Act convictions were upheld. See, e.g., United States v. Dozier, 672 F.2d 531, 538 (5th Cir.) (state commissioner of agriculture asked for ten thousand dollars in return for granting a charter), cert. denied, 459 U.S. 943, 74 L.Ed.2d 200 (1982); United States v. Williams, 621 F.2d 123, 125-26 (5th Cir.1980) (school board member requested money from contractors doing business with the board), cert. denied, 450 U.S. 919, 101 S.Ct. 1366, 67 L.Ed.2d 346 (1981).¹¹ A new trial is necessary because the charge to the jury omitted an essential element of the offense, to wit, a finding that O’Grady misused his office to obtain benefits not due him or his office.

We do not approve of O’Grady’s course of conduct which may well have violated ethical codes and state laws. We cannot agree, however, that O’Grady may be convicted under the Hobbs Act of the practices detailed in the indictment unless the jury charge makes clear that this offense requires the jury to find that the public official did something, under color of his office, to cause the giving of benefits. Public officials occupy unique positions of influence and power in our society and are the focus of great admiration and attention as well as intensive lobbying. Vast sums of money are spent in efforts to persuade, cajole or appease them.¹² The jury charge given by the district court would make the mere receipt of a benefit by a public official, whether a hot dog from a street vendor or an expense-paid vacation to Disney World, punishable under the Hobbs Act with up to twenty years imprisonment and a $10,000 fine.¹³ This interpretation of the Hobbs Act would place every public official in jeopardy by virtue of his status rather than his venal acts. Cf Robinson v. California, 370 U.S. 660, 666, 82 S.Ct. 1417, 1420, 8 L.Ed.2d 758 (1962).

The position of the United States Attorney’s office in this matter, that the “Hobbs Act may be viewed as enacting a special code of integrity for public officials,” ¹⁴ is unsettling at best. The government assures us that “as a matter of prosecutorial discretion, it would make no sense to attempt to prosecute for ... de mini-mus [sic], ambiguous conduct.” Id. The fact that ambiguous conduct could be prosecuted under the government’s interpretation raises serious constitutional questions of fair notice and overbreadth and makes a mockery of the principle that criminal statutes must be construed strictly with any ambiguity resolved in favor of lenity. United States v. Enmons, 410 U.S. 396, 411, 93 S.Ct. 1007, 1015, 35 L.Ed.2d 379 (1973) (citations omitted); cf. United States v. Chestnut, 394 F.Supp. 581, 591 (S.D.N.Y. 1975) (narrow construction of criminal statute meets “least drastic means” test), aff'd, 533 F.2d 40 (2d Cir.), cert. denied, 429 U.S. 829, 97 S.Ct. 88, 50 L.Ed.2d 93 (1976). The fact that United States Attorneys are responsible and fair-minded persons offers little comfort here. The evil of selective prosecution is not avoided by the likelihood that de minimis violations will be overlooked. We remain a nation of laws rather than of men.

The panel opinion is vacated. The judgment of conviction is reversed and this case is remanded to the district court for a new trial.

1 . NYCTA’s purchase of the subway cars was financed in substantial part through funds administered by the Urban Mass Transit Authority, United States Department of Transportation. Delivery of the cars began in March 1975 and was completed in October 1978.

2 . The Hobbs Act provides that:

(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both.

(b) As used in this section—

(1) The term "robbery” means the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.

(2) The term "extortion” means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.

(3) The term "commerce” means commerce within the District of Columbia, or any Territory or Possession of the United States; all commerce between any point in a State, Territory, Possession, or the District of Columbia and any point outside thereof; all commerce between points within the same State through any place outside such State; and all other commerce over which the United States has jurisdiction.

(c) This section shall not be construed to repeal, modify or affect section 17 of Title 15, sections 52, 101-115, 151-166 of Title 29 or sections 151-188 of Title 45.

18 U.S.C. § 1951 (1982).

3 . Count One of the indictment alleged:

1. In or about and between January 1, 1972 and June, 1981, both dates being approximate and inclusive, the defendant EDWARD H. O’GRADY knowingly, wilfully and unlawfully did attempt to and did obstruct, delay and affect commerce, as that term is defined in Section 1951(b)(3) of Title [18] of the United States Code, by attempting to obtain and obtaining the benefits valued at approximately Thirty Thousand Dollars ($30,000) in entertainment, including but not limited to lunches, dinners, sports events, golf outings, weekend vacations and trips, from Pullman, Rockwell, General Electric, Luminator, WAB-CO, Walton Products, Westcode, Standard Steel, Elicon National, New York Air Brake Co., McGraw Edison Co. and Abex Inc., their officers, agents and employees, with the consent for such entertainment having been wrongfully induced under color of official right.

2. The aforesaid conduct of the defendant EDWARD H. O’GRADY had the potential of affecting and did affect commerce (a) because it depleted the assets of the above-named companies, all of which were engaged in, dependent upon, and regularly used the facilities of interstate commerce; and (b) because the performance of the R-46 contract, described in paragraph 2 of the Introduction of this indictment, required the use of the facilities of interstate commerce for the movement of materials, supplies, products and personnel between New York and other states. (Title 18, United States Code, Section 1951).

See App. for Appellant at 8-9.

4 . The overwhelming majority of trips were two-to-four day excursions to various resorts, principally the Greenbrier in White Sulphur Springs, West Virginia. The vendor would typically pay for O’Grady’s, and sometimes his wife’s, food and lodging and would often pay the travel expenses. The vendor paid for O’Grady’s golf expenses on each trip. The pattern of excursions indicates that O’Grady travelled most often at vendors’ expense when activity on the R-46 contract was greatest.

5 . See, e.g., Trial Tr. at 59-60 (testimony of Walter Kilrae, ex-Assistant Program Manager of the R-46 project, Pullman-Standard); 277, 386 (testimony of Martin Simon, ex-engineer, General Electric Co.); 411 (testimony of Jay Hook, Vice-President, Masco Corp.); 469-70 (testimony of Alfred W. Frank, Director of Sales, McGraw-Edison Co.); 566, 574 (testimony of Robert W. Kennedy, ex-Project Manager of R-46 project, Union Switch & Signal Co.); 948 (testimony of P.O. Willaman, President, New York Air Brake).

6 . Trial Tr. at 185 (testimony of Walter Kilrae); see, e.g., id. at 949-50 (testimony of P.O. Willaman); 1003 (testimony of Frank F. Frangella, Foreman, NYCTA); 1016 (testimony of William Gregory, Foreman, NYCTA).

7 . The district court’s jury instruction incorporated the government’s request to charge with minor modifications in favor of the defendant. O’Grady’s attorney filed objections to the government’s proposed instructions, but he failed to object when the district court went over the charge it intended to deliver to the jury.

After the district court charged the jury, O’Grady’s attorney objected on the record to the entire charge as wrong on the law. Because O’Grady’s attorney filed objections to the government’s proposed instruction and because it was clear throughout the trial that O'Grady disputed the government’s interpretation of the law, we find that O’Grady sufficiently preserved his right of appeal on this issue.

In his brief to the three judge panel, O’Grady framed the “sole question on appeal in this case [as] whether [his] conduct is cognizable as extortion under the terms of the Hobbs Act." Br. of Appellant at 6. Thus, his appeal was not limited to a challenge of the sufficiency of the evidence, but directly attacked the district court’s instruction on the law. In O’Grady’s words, "where extortion under color of official right is charged, the government must prove that the payment was obtained by force, fear or duress.” Id. at 7. In his brief to the en banc court, O’Grady presents and argues the question of "whether the. district court erred in failing to instruct the jury that it could convict only if O’Grady wrongfully used his public office to induce the benefits received.”

The jury charge contained plain error in any event.

8 . "Induce” means "to move and lead (as by persuasion or influence)" and "obtain” means "to gain or attain possession ... by some planned action or method.” Webster's Third New International Dictionary (1971).

9 . Actually, the government’s burden is lighter under the district court’s jury charge in that a § 201(g) prosecution requires proof that the gratuity was given "for or because of any official act performed or to' be performed by” such public official.

10 . The government emphasized one particular incident in 1977 as providing proof that O’Grady’s official actions were influenced as a result of an expense-paid trip given to him by a vendor. The General Electric Company, a subcontractor to Pullman-Standard, had problems at that time manufacturing traction motors, control equipment and gear equipment to contract specifications. O’Grady’s department complained that the motors vibrated excessively and that a particular electrical component was not sufficiently sturdy. In addition, O’Grady's department rejected as many as 80% of certain gearbox seals because of tiny perforations in them. General Electric did not agree with O’Grady’s evaluation and tried to discuss the problem with various NYCTA officials. After General Electric unsuccessfully tried to persuade NYCTA to conduct certain tests on the equipment, the company instructed one of its engineers to take O’Grady to Orlando, Florida, at company expense, so that O’Grady could visit the service shops of the Walt Disney Company where General Electric components operated successfully in the monorail cars at Disney World. In Orlando, O’Grady and the engineer discussed business, rode the monorail and visited the maintenance shop, but for the greater portion of the trip they played golf. Mr. Martin Simon, the former General Electric engineer who accompanied O’Grady to Florida, testified that when O’Grády returned from the trip, General Electric was successful in having the tests performed on their equipment. Trial Tr. at 320-42.

11 . The government has maintained that this case is akin to United States v. Barber, 668 F.2d 778 (4th Cir.), cert. denied, 459 U.S. 829, 103 S.Ct. 66, 74 L.Ed.2d 67 (1982), in that “when gifts of that quantity and of that nature are given over an extended period of time, the irresistible conclusion is that in fact they were not gifts, but that they were given to forestall a negative action being taken." This case is distinguishable because the defendant in Barber, a member of the state liquor control commission, took state owned liquor from state warehouses and subsequently billed the companies that had originally sold the liquor to the state. Unlike Barber, there was no evidence that O’Grady so used his office to obtain or induce the benefits that were given to him by R-46 contract vendors.

12 . The district court recognized the difficulty in distinguishing the motive of those who bestow benefits on public officials:

The Court: When I was the village attorney in Long Island and believe me, as far as I know the Good Humor company had nothing to do with the village attorney, and I am not sure they gave it to me because I was village attorney — but I remember them driving me back when I appeared for the Mackitan Company in a local matter, and I found out that they spread Good Humor around Nassau County and they said they gave all the officials cakes for Mother’s Day, every Supreme Court Justice and every official and they found out I was village attorney and the next Mother’s Day there appeared on my doorstep a Good Humor cake which was whipped cream well-melted, but nonetheless a cake. I think it was probably too late to do anything other than eat what was left of it, or toss it in the wastebasket.

The point is, under your interpretation, I guess that is a violation of the Hobbs Act.

Prosecutor: Did you go back the next day and say, boy, was that good?

The Court: No. I never talked to them.

Prosecutor: There is really a difference there.

The Court: Why?

Prosecutor: Because that would come under the heading of a gift.

Prosecutor: There is a big difference between handing a gift to somebody and someone giving something to someone motivated by a public official’s power.

The Court: I know several [state] Supreme Court Justices, whom I asked, and they said they got a cake—

Prosecutor: Was Good Humor a plaintiff or defendant in a case before them?

The Court: Yes.

Prosecutor: They should have returned it. What year was this?

Statutes can be enforced, yes, in a manner that [of]fends the Constitution, I suppose, but this is not one of those times.

Prosecutor: The question of degree goes to prosecutorial [discretion] rather than a violation of the Constitutional sta[ndard].

If someone takes a candy bar under the Hobbs Act, that person does not get indicted. But when you have $35,000 worth of benefits, the degree of abuse at that point leaves the Government no choice but to prosecute.

Prosecutor: It indicates criminal intent and conduct that is very blatant and that cries out for prosecution.

Otherwise, people can walk into a situation ask absolutely no questions, the graft and corruption going on all the time — everybody else does it, I will do it — and no one will get prosecuted.

Trial Tr. at 492-95.

13 . The district court was also worried about what it termed the question of "degrees:"

The Court: I am not worried about that. Do you have any cases that discuss this question of degree?

Am I not just as guilty if I take a lunch from you today, and that’s all I take, as if I took 15 lunches from you—

Prosecutor: Yes, if it’s done with the intent required by the Hobbs Act.

The Court: I know you are taking me to lunch because I am a Judge. I have never known you in any other capacity.

Prosecutor: ... The question of degree really relates to the exercise of discretion. People charged under the State [law], are charged with taking the free lunches and dinners, but there is no evidence to support the extent of the activity, to support — they are nowhere near what Mr. O’Grady took.

The Court: That is not the question. If I took one lunch—

Prosecutor: Yes.

The Court: It’s not a question of degree.

Prosecutor: We exercise prosecutorial discretion and don’t charge everybody. That is true with respect to almost any Statute.

Trial Tr. at 486-88.

14 . Letter from Raymond J. Dearie, United States Attorney for the Eastern District of New York, to the United States Court of Appeals for the Second Circuit (Jan. 21, 1983) (clarifying government’s response to questions raised at oral argument of United States v. O’Grady, No. 82-1344 (2d Cir. argued Jan. 19, 1983)).