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THOMAS, J., dissenting

cretion in the Prosecution of Local Political Corruption, 10 Pepp. L. Rev. 321, 336–343 (1983).

The reader of today's opinion, however, will search in vain for any consideration of the principles of federalism that animated Gregory, Rewis, Bass, and McNally. It is clear, of course, that the Hobbs Act's proscription of extortion "under color of official right” applies to all public officials, including those at the state and local level. As our cases emphasize, however, even when Congress has clearly decided to engage in some regulation of the state governmental officials, concerns of federalism play a vital role in evaluating the scope of the regulation. The Court today mocks this jurisprudence by reading two significant limitations (the textual requirement of “inducement” and the common-law requirement of “under color of office”) out of the Hobbs Act's definition of official extortion.

proval” of judicial interpretation of a statute) (internal quotation marks omitted).

I find it unfortunate that the arguments we rejected in McNally today become the law of the land. See ante, at 268,269 (“Our conclusion is buttressed by the fact that so many other courts that have considered the issue over the last 20 years have interpreted the statute in the same way. Moreover, given the number of appellate court decisions ... it is obvious that Congress is aware of the prevailing view” and has ratified that view through its silence).

8 This case is, if anything, more compelling than Gregory v. Ashcroft, 501 U. S. 452 (1991). In both cases, Congress clearly chose to engage in some regulation of state governmental officials. In Gregory, however, that regulation was sweeping on its face, and our task was to construe an exemption from that otherwise broad coverage. We decided the case on the ground that the exemption must be assumed to include judges unless a contrary intent were manifest. “[I]n this case we are not looking for a plain statement that judges are excluded. We will not read the [statute) to cover state judges unless Congress has made it clear that judges are

[I]t must be plain to anyone reading the Act that it covers judges.” Id., at 467. Here, in contrast, our task is to construe the primary scope of the Hobbs Act.

included. ...

THOMAS, J., dissenting


I have no doubt that today's opinion is motivated by noble aims. Political corruption at any level of government is a serious evil, and, from a policy perspective, perhaps one well suited for federal law enforcement. But federal judges are not free to devise new crimes to meet the occasion. Chief Justice Marshall's warning is as timely today as ever: “It would be dangerous, indeed, to carry the principle, that a case which is within the reason or mischief of a statute, is within its provisions, so far as to punish a crime not enumerated in the statute, because it is of equal atrocity, or of kindred character, with those which are enumerated.” United States v. Wiltberger, 5 Wheat., at 96.

Whatever evils today's opinion may redress, in my view, pale beside those it will engender. “Courts must resist th[e] temptation [to stretch criminal statutes] in the interest of the long-range preservation of limited and even-handed government.” United States v. Mazzei, 521 F.2d 639, 656 (CA3 1975) (en banc) (Gibbons, J., dissenting). All Americans, including public officials, are entitled to protection from prosecutorial abuse. Cf. Morrison v. Olson, 487 U. S. 654, 727– 732 (1988) (SCALIA, J., dissenting). The facts of this case suggest a depressing erosion of that protection.

Petitioner Evans was elected to the Board of Commissioners of DeKalb County, Georgia, in 1982. He was no local tyrant—just one of five part-time commissioners earning an annual salary of approximately $16,000. The board's activities were entirely local, including the quintessentially local activity of zoning property. The United States does not suggest that there were any allegations of corruption or malfeasance against Evans.

In early 1985, as part of an investigation into “allegations of public corruption in the Atlanta area," a Federal Bureau of Investigation agent, Clifford Cormany, Jr., set up a bogus firm, “WDH Developers,” and pretended to be a land developer. Cormany sought and obtained a meeting with Evans.

THOMAS, J., dissenting

From March 1985 until October 1987, a period of some two and a half years, Cormany or one of his associates held 33 conversations with Evans. Every one of these contacts was initiated by the agents. During these conversations, the agents repeatedly requested Evans' assistance in securing a favorable zoning decision, and repeatedly brought up the subject of campaign contributions. Agent Cormany eventually contributed $8,000 to Evans' reelection campaign, and Evans accepted the money. There is no suggestion that he claimed an official entitlement to the payment. Nonetheless, he was arrested and charged with Hobbs Act extortion.

The Court is surely correct that there is sufficient evidence to support the jury's verdict that Evans committed "extortion" under the Court's expansive interpretation of the crime. But that interpretation has no basis in the statute that Congress passed in 1946. If the Court makes up this version of the crime today, who is to say what version it will make up tomorrow when confronted with the next perceived rascal? Until now, the Justice Department, with good reason, has been extremely cautious in advancing the theory that official extortion contains no inducement requirement. Until the Supreme Court decides upon the validity of this type of conviction, prosecutorial discretion should be used to insure that any case which might reach that level of review is worthy of federal prosecution. Such restraint would require that only significant amounts of money and reasonably high levels of office should be involved.” See U. S. Dept. of Justice, United States Attorneys' Manual $9–131.180 (1984) (emphasis added). Having detected no “[s]uch restraint” in this case, I certainly have no reason to expect it in the future.

Our criminal justice system runs on the premise that prosecutors will respect, and courts will enforce, the boundaries on criminal conduct set by the legislature. Where, as here, those boundaries are breached, it becomes impossible to tell where prosecutorial discretion ends and prosecutorial abuse, or even discrimination, begins. The potential for

THOMAS, J., dissenting

abuse, of course, is particularly grave in the inherently political context of public corruption prosecutions.

In my view, Evans is plainly innocent of extortion. With all due respect, I am compelled to dissent.

'Evans also was convicted of filing a false income tax return. He now challenges that conviction on the ground that the jury was given improper instructions. He did not, however, challenge those instructions at trial or in the Court of Appeals. Thus, his current challenge is not properly before this Court. See Delta Air Lines, Inc. v. August, 450 U. S. 346, 362 (1981); Adickes v. S. H. Kress & Co., 398 U. S. 144, 147, n. 2 (1970).





No. 91–194. Argued January 22, 1992—Decided May 26, 1992 Respondent North Dakota, through its Tax Commissioner, filed an action

in state court to require petitioner Quill Corporation-an out-of-state mail-order house with neither outlets nor sales representatives in the State—to collect and pay a use tax on goods purchased for use in the State. The trial court ruled in Quill's favor. It found the case indistinguishable from National Bellas Hess, Inc. v. Department of Revenue of Ill., 386 U. S. 753, which, in holding that a similar Illinois statute violated the Fourteenth Amendment's Due Process Clause and created an unconstitutional burden on interstate commerce, concluded that a “seller whose only connection with customers in the State is by common carrier or the ... mail” lacked the requisite minimum contacts with the State. Id., at 758. The State Supreme Court reversed, concluding, inter alia, that, pursuant to Complete Auto Transit, Inc. v. Brady, 430 U. S. 274, and its progeny, the Commerce Clause no longer mandated the sort of physical-presence nexus suggested in Bellas Hess; and that, with respect to the Due Process Clause, cases following Bellas Hess had not construed minimum contacts to require physical presence within a State as a prerequisite to the legitimate exercise of state power. Held:

1. The Due Process Clause does not bar enforcement of the State's use tax against Quill. This Court's due process jurisprudence has evolved substantially since Bellas Hess, abandoning formalistic tests focused on a defendant's presence within a State in favor of a more flexible inquiry into whether a defendant's contacts with the forum made it reasonable, in the context of the federal system of Government, to require it to defend the suit in that State. See Shaffer v. Heitner, 433 U. S. 186, 212. Thus, to the extent that this Court's decisions have indicated that the Clause requires a physical presence in a State, they are overruled. In this case, Quill has purposefully directed its activities at North Dakota residents, the magnitude of those contacts are more than sufficient for due process purposes, and the tax is related to the benefits Quill receives from access to the State. Pp. 305-308.

2. The State's enforcement of the use tax against Quill places an unconstitutional burden on interstate commerce. Pp. 309-319.

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