United States v. Katherine Bordallo Aguon

A three-judge panel of this court reversed Aguon’s convictions for extortion and conspiracy in violation of the Hobbs Act, 18 U.S.C. § 1951 and her convictions for making false statements before a grand jury and conspiracy to obstruct justice. United States v. Aguon, 813 F.2d 1413 (9th Cir.1987) {Aguon I). At the suggestion of the government, the case was taken en banc. 831 F.2d 1487 (9th Cir.1987).

Upon rehearing en banc, we are presented with three questions:

(1) whether we should retain the rule established in United States v. McClelland, 731 F.2d 1438 (9th Cir.1984), cert. denied, 472 U.S. 1010, 105 S.Ct. 2708, 86 L.Ed.2d 723 (1985), which held that “inducement” need not be proven in an extortion conviction when property obtained from another by a public official was obtained “under color of official right,”

(2) whether the jury instructions on mens rea were adequate, and (3) whether bias was established when a juror had previously committed an offense similar to the one being tried.

As did the three-judge panel, we reverse and remand to the district court. In doing so, we overrule McClelland because we conclude that proof of “inducement” is a prerequisite to conviction of extortion. As a separate ground for reversal of the Hobbs Act convictions, we adopt the panel’s view that the mens rea instructions were inadequate. Contrary to the panel, we find no juror bias proven and therefore we affirm the non-Hobbs Act convictions.

While we adopt extensive portions of the three-judge panel’s opinion, we modify it in several respects. Therefore, we withdraw the opinion of this court in Aguon I at 813 F.2d 1413 and replace it herewith.

I

Extortion: The Jury Instructions

The relevant facts and proceedings regarding the jury instructions on the extortion charge are taken verbatim from Judge Noonan's opinion in Aguon I: *1161 es, a washing machine, a gas dryer, a microwave oven, and a refrigerator “to make her happy.” He gave them without payment because “like I said, I’m vendor it’s to me hard to ask money” and because “I don’t want the people don’t like my, don’t like company to do business with DOE.” He testified that he also bought a carpet selected by Aguon in Los Angeles and installed it in her house in Guam. He did this so he would have “no trouble” with his maintenance contract with DOE. Finally, he testified that he also put central air-conditioning in her home. The total value of these offerings was at least $8,500. Aguon was charged under Count Two of the indictment with having “knowingly and wilfully” committed extortion under 18 U.S.C. § 1951 in that she “did obtain and cause to be obtained” these goods, and she was convicted of that crime. 1

*1160 Katherine B. Aguon, the defendant, was the Director of the Department of Education (DOE) of Guam between February 1980 and December 1982. A co-defendant was Pyong Hok Han, a Korean businessman, whose company, Hando Enterprises, Inc., was a vendor to DOE. Han testified that he gave Aguon dress-

*1161 At the beginning of the case before any evidence was introduced, the trial court read what it characterized as instructions “which go to the essential elements of the criminal conduct that is charged here” in order to give the jury “some feel for the nature of the case.” The jury was told that the government had “to prove the case beyond a reasonable doubt.” The jury was told that to prove extortion the government would have to prove that the defendant “caused or attempted to cause another to part with money or property by threatening to withhold official action unless he did so.” The giving of preliminary instructions was well within the practice permitted by this circuit. Manual of Model Jury Instructions for the Ninth Circuit 29 (1985).

The court’s instructions to the jury at the' close of the case were that the government must prove beyond a reasonable doubt “three essential elements ” in its case:

First, that the defendant induced another under color of official right to part with property.

Second, that she did so by extortion as defined in these instructions.

Third, that in doing so, interstate commerce was delayed, interrupted or adversely affected. [Italics supplied]

The court defined “wrongful” as “the obtaining of property by an alleged extortionist to which he has no lawful claim.” “Therefore,” the court said, proof “that the defendant obtained property under color of official right and that he was not lawfully entitled to this property” was “sufficient to establish that this property was wrongfully obtained by the defendant.”

As to “color of official right,” the court charged:

This type of extortion does not require proof of any specific acts on the part of the public official demonstrating force, threats, use of fear or inducement.

The wrongful use of otherwise valid official power converts dutiful action into extortion ...

So long as the motivation for the payment focuses on the recipient’s office, the conduct falls within the ambit of Section 1951 of Title 18, United States Code. [Italics supplied]

We determine the adequacy of jury instructions by examining them in their entirety. United States v. Feldman, 788 F.2d 544, 555 (9th Cir.1986) [, cert. denied, — U.S. —, 107 S.Ct. 955, 93 L.Ed.2d 1003 (1987) ]. We review a district court’s decision as to particular instructions for abuse of discretion. Id.

*1162 II

Extortion: The Meaning of “Induced"

We agree with the three-judge panel’s conclusion that:

The instructions in this case were fundamentally flawed. First, in line with the court’s “preliminary instructions,” they told the jury that the defendant had to “induce” the payment. Then the instructions told the jury that no proof of acts demonstrating “inducement” was necessary. The government now argues that the instruction requiring proof of inducement was more favorable to the defendant than the law required, so she lost nothing in having the instruction canceled by the later instruction. But the instructions are contradictory. The difficulty with contradictory instructions is the confusion they must have generated in the jury. Did it matter whether the payments were induced or not induced? The jury was left without guidance on this question.

The Aguon I opinion suggests a reason for the confusion in the trial court’s instructions:

We have construed the Hobbs Act not to require inducement by the government official_ McClelland, 731 F.2d [at] 1440 [citation omitted]. The court has observed that the statutory definition of extortion is in the disjunctive: “induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right” (emphasis supplied). This construction of the Hobbs Act is concurred in by almost all other circuits. Id. at 1439. This court has held that violations of the Hobbs Act “may be proved by demonstrating nothing more than that the payment in question was obtained ‘under color of official right.’ ” Id. at 1440.

But here we must part company with the analysis of Aguon I. As Judge Haynsworth stated, and we agree, “[t]he meaning of ‘induced ... under color of official right’ is the question in this case.” United States v. Paschall, 772 F.2d 68, 71 (4th Cir.1985) (emphasis supplied), cert. denied, 475 U.S. 1119, 106 S.Ct. 1635, 90 L.Ed.2d 181 (1986). To answer this question we shall examine the grammatical construction, plain meaning, legislative history, and judicial interpretation of the Hobbs Act.

A

Grammatical Construction

In United States v. Hathaway, 534 F.2d 386, 393 (1st Cir.), cert. denied, 429 U.S. 819, 97 S.Ct. 64, 50 L.Ed.2d 79 (1976), the First Circuit focused on the disjunctive nature of the statutory definition of “extortion” at 18 U.S.C. § 1951(b)(2) and particularly emphasized the use of the word “or” preceding the last phrase, “under color of official right.” Our court in McClelland purported to follow this reasoning and concluded that inducement need not be shown in a Hobbs Act prosecution of a public official. McClelland, 731 F.2d at 1440. But, in a very recent post-Hathaway opinion, the First Circuit states the disjunction more accurately: “[w]e have interpreted the definition in the disjunctive, finding that the prosecution can establish a violation by showing that a defendant induced payment either through use of actual or threatened force, violence or fear, or under color of official right.” United States v. Bucci, 839 F.2d 825, 827 (1st Cir., 1988) (emphasis in original). We believe that the First Circuit’s newly added emphasis on the word “either” is consistent with our view of statutory construction.

Upon close grammatical analysis, it appears that, correctly parsed, the verb “induced” is modified by two prepositional phrases: “by wrongful use of actual or threatened force, violence, or fear,” and “under color of official right.” Both prepositional phrases modify the one verb, “induced.” An accurate grammatical reading is that several methods of inducement are permitted by the Act. The prepositions “by” and “under” are parallel. The prepositional phrases have a parallel disjunctive function in modifying “induced.” Only “induced” payments are thus proscribed. See Comment, Prosecuting Public Officials Under the Hobbs Act: Inducement as an *1163 Element of Extortion Under Color of Official Right, 52 U. Chi. L.Rev. 1066, 1087 (1985).

We are persuaded that our McClelland court, in focusing on the disjunctive construction of the prepositional phrases, failed to consider the significance of the verb such phrases modified. While the grammatical analysis may not be entirely dispositive, we are convinced that proper interpretation of the Hobbs Act cannot ignore the original statutory command that the alleged activity must “induce” the alleged payment.

B

Plain Meaning of “Induced”

The ordinary meaning of “induce” is “to move and lead (as by persuasion or influence).” Webster’s Third New International Dictionary (1986). Black’s Law Dictionary (5th ed. 1979) defines “induce”: “To bring on or about, to effect, cause, to influence to an act or course of conduct, lead by persuasion or reasoning, incite by motives, prevail on.”

All definitions of “induce” are active. Something is done. The payee must have done something to activate the payor.

In construing the statute we begin with the premise that Congress meant each word it incorporated into a definition to have meaning. “Legislative words presumably have meaning and so we must try to find it_And so we assume that Congress uses common words in their popular meaning, as used in the common speech of men.” Frankfurter, Some Reflections on the Reading of Statutes, 47 Col.L.Rev. 527, 534, 536 (1947).

The background and legislative history of the Hobbs Act support the conclusion that Congress, in defining the elements of the crime, intended the extortionist to have more than an inert role in the transaction.

C

Historical Background and Legislative History

The validity of our analysis is reinforced by Judge Noonan’s development of historical background and legislative history in Aguon I:

The ancient phrase “under color of official right” (the equivalent of ex colore officii) had a distinct meaning at common law. It meant “an act badly done under the countenance of an office” under “a dissembling visage of duty.” Dive v. Maningham, 75 Eng.Rep. 96, 108 (Common Pleas, 1550). Without amplification the phrase is used by Blackstone to define extortion. 4 Commentaries on the Laws of England (1765) 141 (“any officer’s unlawful taking, by color of his office, from any man, any money or value that is not due to him, or more than is due, or before it is due.”).

As applied at common law in the United States the phrase “by or under color of office or official right” was construed to mean that the official made a demand. If money was paid voluntarily, it was not obtained by the officer “by color of his office.” See, e.g., Commonwealth v. Dennie, Thacher’s Criminal Cases (Boston Mun.Ct.1827) 165. “Demand” on the part of the payee, “unwillingness on the part of the payor, were correlative”. The ordinary meaning of “to extort” is “to obtain from an unwilling person.” This ordinary meaning was preserved by the interpretation the courts gave to “color of office.” See LaTour v. Stone, 139 Fla. 681, 190 So. 704 (1939) and the authorities cited therein; Daniels v. United States, 17 F.2d 339 (9th Cir.), cert. denied, 274 U.S. 744, 47 S.Ct. 591, 71 L.Ed. 1325 (1927).

Some courts insisted that there must be an express request for payment by an official before he could be guilty of extortion. E.g., United States v. Harned, 43 F. 376 (D.Wash.1890). Other courts found demand in a course of conduct that conveyed the official’s messsage to his victim. E.g., Commonwealth v. Wilson, 30 Pa.Super. 26 (1906). However subtly the official communicated, a demand was what was necessary to constitute common law extortion. See Comment, “United States v. Mazzei: Hobbs Act Extortion Under Color of Official *1164 Right” 62 Va.L.Rev. 439, 441 (1976) (common law extortion consisted of “corruptly demanding”).

Congress has used the terms “extort” or “extortion” in a variety of statutes without any indication of an intention to eliminate the common law requirement of demand. E.g., 18 U.S.C. § 875 (transmission with intent to extort); 18 U.S.C. § 876 (mailing with intent to extort); 18 U.S.C. § 872 (extortion by federal officials). This last statute makes it a crime for any officer of the United States “under color of his office” to commit “extortion.” As the statute uses a term already contained in the common law meaning of extortion, it has been reasoned that Congress must have meant to require more — the commission of official acts which brought pressure on the one subject to them. United States v. Sutter, 160 F.2d 754 (7th Cir.1947). The statute, so interpreted, does not abandon the common law requirement of a demand, but rather, emphasizes its necessity for proof of commission of the crime.

We find it particularly significant that the word “induced” is common to the extortion definition in the Hobbs Act and two source statutes. The New York Penal Code of 1909 defined extortion as the “obtaining of property from another, ... with his consent, induced by a' wrongful use of force or fear, or under color of official right.” N.Y. Penal Law § 850 (1909), as amended, 1917 N.Y. Laws 1545 (emphasis supplied). This definition had been carried forward from the proposed 1864 Penal Code which was not enacted until 1881. See Commissioners of the Code The Penal Code of the State of New York tit. XV ch. VI § -613 at 220 (1864); N.Y. Penal Code tit. XV ch. V § 552 at 139 (1881). 2

The Anti-Racketeering Act of 1934 defined extortion as: “[ojbtains the property of another, with his consent, induced by wrongful use of force and fear, or under color of official right_”48 Stat. 979, 980 (1934) (emphasis supplied).

As pointed out in Aguon I, the latter statute:

was amended in 1946 by the Hobbs Act, where extortion was defined in terms of these prohibited acts: “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.” 18 U.S.C. § 1951(b)(2). Congressman Hobbs said explicitly that the definitions of robbery and extortion were modeled on the New York Penal Code. 91 Cong.Rec. 11,900 (1945). Other congressmen observed that the congressional definitions were in harmony with the understanding of extortion in all of the states, 89 Cong.Rec. 3205 (1943) (statement of Rep. Graham); 91 Cong. Rec. 11,906 (1945) (statement of Rep. Robsion).... When “Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word....” Morissette v. United States, 342 U.S. 246, 263 [72 S.Ct. 240, 250, 96 L.Ed. 288] (1952).

It is a well-established principle of statutory construction that when one jurisdiction adopts the statute of another jurisdiction as its own, there is a presumption that the construction placed upon the borrowed statute by the courts of the original jurisdiction is adopted along with the statute and treated as incorporated therein. Tucker v. Oxley, 9 U.S. (5 Cranch) 34, 42, 3 L.Ed. 29 (1809); Vela v. Government Employees Insurance Company, 395 F.2d *1165 437, 439 (9th Cir.1968). At the time the Hobbs Act was passed, New York law had explicitly recognized the distinction between extortion and bribery, and the need to prove inducement as an element of the former. See, e.g., Hornstein v. Paramount Pictures, 22 Misc.2d 996, 1002-04, 37 N.Y.S.2d 404, 412-13 (N.Y.Sup.Ct.1942), aff'd, 266 A.D. 659, 41 N.Y.S.2d 210 (1943), aff'd, 292 N.Y. 468, 55 N.E.2d 740 (1944); Simpson v. Coastwise Lumber & Supply, 239 N.Y. 492, 498-500, 147 N.E. 77, 79 (1925). The New York Code also had a separate statute prohibiting the crime of “oppression,” defined as the misuse of public office by act rather than by threat. N.Y. Penal Law § 854 (1909); see also New York v. Learman, 261 A.D. 748, 752, 28 N.Y.S.2d 360, 364 (1941). That the New York Code of the time so recognized and distinguished the similar crimes of bribery, extortion, 3 and oppression, but required inducement only for the crime of extortion, is strong evidence that Congress also intended to require inducement as an element for conviction under the Hobbs Act.

As stated in Aguon I:

Courts are not to create new crimes by changing the accepted meaning. [See Morissette, 342 U.S. at 263, 72 S.Ct. at 250]. If the core common law concept is abandoned, the meaning of extortion becomes uncertain. The statute is “set adrift upon a sea of prosecutorial discretion” and “becomes unconstitutionally vague.” United States v. Mazzei, 521 F.2d 639, 655 (3d Cir.) (en banc) (Gibbons, J. dissenting), cert. denied, 423 U.S. 1014 [96 S.Ct. 446, 46 L.Ed.2d 385] (1975). Judge Gibbons’ fears were not idle. The Second Circuit was informed by the United States Attorney for the Eastern District of New York in 1983 that the “Hobbs Act may be viewed as enacting a special code of integrity for public officials” although that “as a matter of pros-ecutorial discretion” ambiguous de min-imis conduct by public officials would not be prosecuted. United States v. O’Grady, 742 F.2d 682, 694 (2d Cir.1984). As that court pointed out, rejecting this interpretation of the statute, the fact that ambiguous conduct could be prosecuted was alien to basic concepts of criminal justice. Id.; see also Comment, [52 U.Chi.L.Rev. at 1087].

The government’s construction of the Hobbs Act equates it with the federal statute commonly called “the anti-gratuities statute,” 18 U.S.C. § 201(g) [1962]. Under this statute a federal official who receives money “for or because of any official act performed or to be performed” is subject to imprisonment for two years. Under the Hobbs Act any public official, federal or state, is subject to imprisonment of twenty years. The enactment of the antigratuity statute in 1962 was “a clear indication that Congress did not believe that the Hobbs Act prohibits such conduct.” O’Grady, 742 F.2d at 691. The enactment of the anti-gratuity statute, which deliberately eliminates common law concepts, is also a clear indication that Congress did not intend to eliminate the common law core when in the Hobbs Act it employed the common law phrase “under color of official right.”

There has been development under the statute as to proof of demand by an official — a development by modern case law consistent with the common law core. Demand may be proved not by the words of the defendant but by the custom of the system in which the official operates. E.g., United States v. Kenny, 462 F.2d 1205 (3d Cir.) (Gibbons, J.), cert. denied, 409 U.S. 914 [93 S.Ct. 233, 34 L.Ed.2d 176] (1972). The Kenny machine, long-entrenched, had established a system whereby “no one could do business” with Jersey City or Hudson County without a kickback, usually 10 percent, of the contract price. At the head of this system was the boss who held no official or party position, yet controlled everything. In this system, the office *1166 holders did not have to make individual demands for the money. A “thoroughly meshed arrangement” produced the kickbacks for Kenny. Id. at 1211. Demand for payment was built in.

Not surprisingly, Judge Noonan’s analysis is consistent with the history of this subject set forth in the recognized authority in the field: Noonan, Bribes, 564-91 (1984).

D

Judicial Construction

We find ourselves in accord with the Second Circuit’s conclusion that inducement is an element required for conviction under the Hobbs Act. We note with approval that the Second Circuit has analyzed the facts of cases in which other courts of appeals have explicitly rejected the necessity of proof of inducement and concluded that “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.” O’Grady, 742 F.2d at 689. Writing for the Seventh Circuit, Judge Posner noted: “There is an air of the academic about this intercircuit conflict because, as a matter of fact, in none of the cases in which the issue has been pressed was the official passive_” U.S. v. Holzer, 816 F.2d 304, 311 (7th Cir.), vacated, — U.S. —, 108 S.Ct. 53, 98 L.Ed.2d 18 (1987), aff'd in part on remand, 840 F.2d 1343 (1988).

In our pre-McClelland holdings we have found sufficient evidence of inducement without questioning whether inducement was an essential element under the Hobbs Act. See United States v. Gates, 616 F.2d 1103, 1106 (9th Cir.1980); United States v. Phillips, 571 F.2d 495, 500-01 (9th Cir.), cert. denied, 439 U.S. 831, 99 S.Ct. 107, 58 L.Ed.2d 125 (1978). Indeed, “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.” O’Grady, 742 F.2d at 691.

Thus, we are persuaded to adopt the reasoning of O’Grady in its main points which, as suggested by Aguon I, are:

[T]hat the Hobbs Act punishes a fundamentally different offense than the anti-gratuities statute, [O’Grady,] 742 F.2d at 691; that proof of actions under color of office is essential to proof of the crime, id. [at 689]; and that in short, “this offense requires the jury to find that the public official did something, under color of his office, to cause the giving of benefits.” Id. at 693.

The government is free to prove that a system was in place in the Department of Education in Guam such that no words were necessary for Aguon to utter to get a payoff. The government did prove at the trial that Granich and Camacho were so regularly paid off by Han that no repetition of demands was necessary by them: a system as to them was in place and at work. But in the case of Aguon, who came into office after Granich and Camacho had embarked on extortion, the evidence of a system of which she was aware was different. Nevertheless, the government may be able to show that Aguon was part of a system whose customary operation demanded that a share go to the head honcho....

The instruction, “So long as the motivation for the payment focuses on the recipient’s office, the conduct falls with the orbit of Section 1951 of Title 18” is not erroneous if properly qualified by surrounding language making a correlation between the payor’s motivation and the payee’s conduct. See 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). No such language qualified the instruction here.

We hold that proof that the defendant “induced” the improper payment is an essential element in the crime of extortion and that “inducement” can be in the overt form of a “demand,” or in a more subtle form such as “custom” or “expectation” such as might have been communicated by the nature of defendant’s prior conduct of his office. Reliance on a system of expecting payments in exchange for public favors can itself be the necessary act of inducement if the public official previously establishes or acquiesces in the system and if the donor is sufficiently aware of the ex *1167 pectation created by prior acts of extortion. Accordingly, the jury instructions must incorporate inducement, which may be explicit or implicit, as a required element of the crime of extortion under the Hobbs Act.

Perhaps an observation on the distinction between bribery and extortion in the federal law is warranted. Bribery is committed by both the bribe giver and the recipient; extortion is only committed by the recipient. Bribery and extortion will still overlap in some situations. As Judge Aldisert noted:

At their tangent, the offenses of bribery and extortion may both arise out of the same nucleus of operative facts. A public official who corruptly accepts an unauthorized fee for the performance of his official duty may be guilty of both bribery and extortion. At the opposite extreme, however, the offenses bear little resemblance.

United States v. Cerilli, 603 F.2d 415, 435 (3d Cir.1979) (Aldisert, J., dissenting), cert. denied, 444 U.S. 1043, 100 S.Ct. 728, 62 L.Ed.2d 728 (1980). Under modern federal law, a public official’s inducement of a payment of money for performance of a public act is bribery. See 18 U.S.C. § 201. Such conduct by a public official is also extortion under the Hobbs Act, 18 U.S.C. § 1951(b)(2). But there is a difference. If the official accepts the payment to perform a public act, it is bribery under section 201; however, if the payment is not induced, it can still be bribery but not extortion under the Hobbs Act.

The distinction is reasonable. Until a 1965 statutory change, New York law accepted extortion as a defense to a charge of bribery. People v. Dioguardi, 8 N.Y.2d 260, 203 N.Y.S.2d 870, 881-82, 168 N.E.2d 683, 692 (1960). 4 Indeed, as Judge Aldisert explains:

A public official charged with extortion under the Hobbs Act should be able to argue that although he did in fact receive something of value, it was given at the initiative of the donor, and not as a result of force, fear or duress emanating from the defendant. Thus, in an indictment for extortion, it is logically and jurispru-dentially sound to permit a defense of bribery. To hold otherwise is to blur completely the distinction between the two crimes.

Cerilli, 603 F.2d at 435 (Aldisert, J., dissenting). The distinction makes sense also because it may be more objectionable for an official to coerce or to demand and thereby to obtain money than for an official to succumb to temptation in accepting money offered him. Public officials who tell members of the public that favors are for sale commit a more serious offense than those who accept unsolicited payments. Under McClelland, a prosecutor could convert a less serious offense, bribery, in which the recipient did no more than accept payment initiated by the bribe-giver, into a more serious offense, extortion, in which conviction could result in a ten-times greater punishment. Prosecutorial discretion should not be permitted to go that far. Stated another way, “when there are two rational readings of a criminal statute, one harsher than the other, we are to choose the harsher only when Congress has spoken in clear and definite language.” McNally v. United States, — U.S. —, 107 S.Ct. 2875, 2881, 97 L.Ed.2d 292 (1987).

Because we are persuaded that our previous analysis of the extortion statute fails to evaluate properly its common law background and more recent developments in legal scholarship, we hereby overrule McClelland to the extent it is inconsistent with our conclusions in this opinion. 5

Ill

Extortion: Role of Mens Rea

We agree with Judge Noonan in Aguon I that the instructions on mens rea were inadequate:

*1168 The government on appeal argues that mens rea was implicit in the court’s use of “wrongful.” But the court’s own definition of the term negates this argument. The court told the jury that the defendant obtained property wrongfully if it was “obtained under color of official right” and she was “not lawfully entitled to this property.” This statement of the elements of the crime was incomplete. Intention was omitted. A homely example will illustrate the deficiency. A judge taking a colleague’s robe by mistake does so under color of official right and he is not lawfully entitled to the robe. The taking is wrongful. But it is no crime: the judge acts without mens rea.

One searches the instructions on extortion almost in vain for any instructions enlightening the jury on mens rea. One finds:

It is not necessary for the government to show that the defendant actually intended to delay, obstruct or affect interstate commerce.

Thus the jury was told what intention the government need not prove. It was not told what intention the government must prove. The general instruction that was given, “You may consider it reasonable to draw the inference and find that a person intends the natural and probable consequences of acts knowingly done or knowingly omitted,” has no bearing on the specific intention to commit the crime with which Aguon was charged.

Criminal intent was a necessary element that the government had to prove. No act standing alone is a crime under the Hobbs Act. A guilty mind has to be proved as well as a wrongful deed. In an historic opinion, Justice Jackson, the ... international prosecutor of the misdeeds of a regime without any respect for individual rights, vindicated this regular requirement of Anglo-American criminal law as “no provincial or transient notion.” Invoking William Blackstone, Roscoe Pound and Max Radin, and writing for the Cou