1. In McCormick v. United States, 500 U.S. 257 (1991), this Court held that a conviction for extorting a campaign contribution "under color of official right" (18 U.S.C. § 1951(a)) requires proof of an "explicit" quid pro quo; that is, proof that the contribution was "made in return for an explicit promise or undertaking by the official to perform or not to perform an official act." When campaign contributions are not at issue, the quid pro quo need not be "explicit." The lower courts all apply these same standards to honest services fraud bribery charges under 18 U.S.C. § 1346. The question presented is:
When a prosecution for Hobbs Act extortion "under color of official right" and for honest services fraud bribery is premised on campaign contributions, may the jury find a promise of official action in exchange for the payment to be "explicit" (as this Court requires), even if that promise is not "express," as held by the court below and one other Circuit, or is an unexpressed promise necessarily other than "explicit," and thus insufficient, as held by four Circuits?

2. In Evans v. United States, 504 U.S. 225 (1992), this Court held that the required quid pro quo in a Hobbs Act extortion case could be established by the receipt of "a payment to which [the official] was not entitled, knowing that the payment was made in return for official acts." A closely divided Court construed "under color of official right" to permit conviction if the official's position was the reason for the payment, dispensing with any requirement of proving an act of inducement. The question presented is:
Should Evans v. United States, 504 U.S. 225 (1992), be overruled in part, because the phrase "under color of official right" – as used in the law of extortion as of the time that the Hobbs Act was enacted – applied only to a pretense of entitlement to the payment by virtue of the recipient's position?

When-campaign-contributions-are-not-at-issue,-the-quid-pro-quo-need-not-be-explicit