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without regard to proof of any actual or threatened force, violence, or fear. As a practical matter, when a public servant obtains money or property to which he or his office is not entitled and does so under color of official right, it will almost always be possible without undue difficulty to show that the property was passed unwillingly because of an implicit threat (e.g., resulting from longstanding corrupt custom) that economic or other harm would result if the payment was not made. Although the "pure" common law offense of extortion may not have required such proof, the extortion offense as it has evolved has focused upon the threat or placing in fear of a person as a prohibited means of obtaining property. The Committee, therefore, adopts the modern rationale for the offense and eliminates from the category of extortion the present Hobbs Act offense, which is very similar to bribery, involving public officials and aspects of blackmail treated separately in the Code. Notably, there appear to be very few prosecutions by the Department of Justice under the "color of official right" branch of 18 U.S.C. 1951.61 Under S. 1, as reported, official misconduct of this nature will be punishable, at an equivalent level, as bribery under section 1351.

Finally, the Committee has eliminated the reference in the Hobbs Act to the "wrongful use" of force, violence, etc., on which the Supreme Court in the Enmons decision predicated its holding that labor officials were not covered by the Act for their extortionate activities against employers, if the objective sought thereby was a legitimate goal of collective bargaining. As indicated before, the Committee intends to overturn the Enmons exception and to prohibit uniformly the use of extortionate means involving actual or threatened violence to obtain property, irrespective of whether the property could legitimately have been acquired in some other way.

B. Culpability

The conduct in section 1722 is obtaining property by threatening or placing another person in fear that any person will be subjected to bodily injury or kidnapping or that any property will be damaged. Under the rules of construction provided in section 303 (b) (1), the requisite culpability level is "knowing," thus requiring proof that the offender was aware of the nature of his conduct.61a

The element that the property obtained is "property of another" is an existing circumstance. Since no culpability standard is specifically prescribed, the applicable state of mind that must be shown is "reckless," i.e., that the offender was aware of but disregarded the risk that the circumstance existed.62

The Committee believes that the overall culpability requirements under this section are sufficient to deal appropriately with the situations involving the so-called "claim of right" defense, which the National Commission proposed to define for all forms of theft, including extortion. Under the Commission's suggested definition, it would be a defense to a prosecution for extortion that the actor "honestly believed

See. e.g., United States v. Addonizio, 451 F.2d 49 (3d Cir. 1971), cert. denied, 405 U.S. 936 (1972), a prosecution for extortion by a public official which was tried to the jury on a theory of use of actual fear of economic harm."

61 The only reported prosecutions under the "color of right" theory are three recent cases from the Seventh Circuit: United States v. Braasch, 505 F.2d 139 (7th Cir. 1974); United States v. Crowley, 504 F.2d (7th Cir. 1974); and United States v. Staszcuk, 502 F.2d 875 (1974). See also United States v. Kenny, 462 F.2d 1205, 1228-1229 (3d Cir. 1972), cert. denied. 409 T.S. 914 (1973).

61 See section 302(b) (1).

62 See sections 303(b) (2) and 302 (c) (1).

that he had a claim to the property or services involved which he was entitled to assert in the manner which forms the basis for the charge against him." The Commission reasoned that if A and B are involved in an automobile accident and A threatens to press criminal charges. against B should B refuse to pay for the damages to A's car, A, although technically guilty of theft if he obtains the payment (blackmail as defined in the instant bill), should not be subject to a successful prosecution because "he was acting under a claim of right to the property and he believed that he was entitled to act as he did in order to get it." 63 The Committee concluded that no such defense should ever be available where the criminal conduct is extortion, as here defined (i.e., threatening or placing another person in fear that another person will be subjected to bodily injury or kidnapping or that any property will be damaged).

A defense based on a similar claim or belief is afforded, to the extent deemed appropriate, by the culpability requirements of the offense. Thus, if the defendant is wholly unaware of the risk that the property he obtains is that of another and believes it is his, he has a defense to extortion-even though his belief was incorrect-because he lacks the requisite recklessness. Where, however, the defendant is aware that the property may be that of another (in the sense that the other has an interest which the defendant is not privileged to infringe without consent), then he would, and should, be guilty for threatening bodily injury or property damage in order to obtain the property. To afford a "claim of right" defense in this latter instance (even if the defendant honestly believed the property was his alone but was aware of the risk it was not) would be unjustified and would encourage individuals to forego legitimate means for pressing contested property or money claims in favor of more immediately effective illegitimate means. The Committee, therefore, believes that a "claim of right" defense should be available only where the de 'endant is not aware of the risk that the property is that of another. To this extent, the claim of right defense is built into the culpability requirements of the offense.

4. Jurisdiction

Subsection (c) of section 1722 provides Federal jurisdiction over an offense described in this section in a variety of circumstances.

The first such circumstance exists if a circumstance set forth in subsection 1721 (c) (defining the jurisdictional bases for robbery) exists or has occurred. These bases are discussed in relation to section 1721, and that discussion is applicable here. The bases referred to carry forward, among other things, the jurisdictional reach of the Hobbs Act, 18 U.S.C. 1951, and part of the reach of the Travel Act, 18 U.S.C. 1952. However, incorporation here of all the jurisdictional bases applicable to robbery is designed also to eliminate present gaps in jurisdictional coverage over extortion which the Committee regards as irrational. For example, although existing law contains an elaborate statutory scheme applicable to the robbery of Federally insured banks and other financial institutions, there is no corresponding prohibition of extortion directed at such institutions. Because of the increased incidence of extortion offenses, which often cannot currently

63 See Working Papers. p. 943. It should be noted that even for blackmail of the nonviolent tyne. the "claim of right defense departs from present Federal law. See United States v. Pignatell, supra note 42.

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be satisfactorily prosecuted, and the Committee's inability to perceive a reason for retaining this peculiar hiatus in Federal jurisdiction, this subsection proposes to extend Federal cognizance over extortion of fenses to instances where the property obtained is that of a national credit institution, or is in its care, custody, or control. Similarly, there seems no reason not to extend extortion jurisdiction to Federal enclaves (where jurisdiction for robbery offenses presently exists), rather than rely on the Assimilative Crimes Act concept to incorporate the disparate extortion provisions of State law.

The second jurisdictional basis exists if the United States mail or a facility of interstate or foreign commerce is used in the planning, promotion, management, execution, consummation, or concealment of the offense, or in the distribution of the proceeds of the offense. This embraces the use of the mails jurisdiction of 18 U.S.C. 876 and 877, as well as the use of interstate or foreign commerce facilities jurisdiction of 18 U.S.C. 875 and 1952. It is not deemed necessary to have a separate, express jurisdictional base for mere movement of the proceeds across a State or United States boundary in the commission of an offense in view of the broad additional commerce coverage provided by the incorporation by reference of paragraph 1721 (c) (6).

The third jurisdictional basis exists if the offense is committed by a Federal public servant 65-acting under color of office. This carries forward the jurisdictional purview of 18 U.S.C. 872 and 26 U.S.C. 7214 (a).

66

The fourth nexus exists if the offense is commited by a person pretending to be a Federal public servant, a former Federal public servant, or a foreign official. This in part carries forward the scope of 18 U.S.C. 872 but expands that jurisdiction to include persons pretending to be former Federal public servants or present foreign officials as well as present Federal public servants.

The fifth circumstance arises if the offense is committed to collect an extension of credit, as defined in subsection 1806 (c). This carries forward part of the coverage of current 18 U.S.C. 894(a).

The sixth circumstance exists if the property consists of any part of the compensation of a person employed in the construction, completion, repair, or refurbishing of a Federal public building, Federal public work, or a building financed in whole or in part by a loan or grant. from the United States, and is obtained by threatening or placing any person in fear in relation to that person's employment. This continues coverage of public work kickbacks proscribed by 18 U.S.C. 874 and parallels the National Commission's formulation in Final Report § 1740(4)(f) with certain minor exceptions. The phrase "in relation to that person's employment," used by the National Commission, has been incorporated. It is intended to cover both threats directed to the loss of employment and the "any other manner whatsoever" language

64 In such cases the robbery provision of 18 U.S.C. 2113 (a) is often not applicable since the extortionist may not take the money or property directly from any "person." Moreover, the larceny provision of 18 U.S.C. 2113(b) is of limited value since, after directing that money be left at a designated drop some distance from the bank, the extortionist may not pick up the money. Likewise, many of these offenses are not subject to prosecution under the limited Federal extortion statutes (18 U.S.C. 875 and 876). As a consequence, the Hobbs Act, 18 U.S.C. 1951, has often been relied upon in such cases. Under proposed section 1722 (c) (1), the jurisdictional base that the money or property is owned by or under the care, custody, or control of the institution will be considerably easier to establish than the "affecting commerce" requirement of the Hobbs Act.

65 The term "Federal public servant" is defined in section 111. (See the definition of "public servant").

The term "foreign official" is defined in section 111.

Section 1723.

of 18 U.S.C. 874. While there are no cases interpreting the latter phrase, it is clear that although the threat need not involve the loss of employment, it nevertheless must have some relationship to it (refusal to hire or promote, demotion, transfer to another project, less desirable assignment on the same project, etc.). If the extortion were not restricted to some aspect of the victim's employment, jurisdiction would exist in every case so long as the victim was employed on one of the projects enumerated in the statute.

The seventh and last circumstance arises if the property is obtained by threatening or placing a person in fear in relation to any person's employment under a grant or contract of assistance pursuant to the Economic Opportunity Act of 1964, as amended. This carries forward the jurisdictional extent of 42 U.S.C. 2703 (b).

5. Grading

An offense under this section is graded as a Class C felony (up to fifteen years in prison). This is somewhat below the maximum penalty presently provided in 18 U.S.C. 875-877, 894, and 1951, but aggregate penalties may be meted out if the offender carries a dangerous weapon during the extortion offense (see section 1823), or if he commits certain crimes of violence (e.g., murder (section 1601) or maiming (section 1611)).

SECTION 1723. BLACKMAIL

1. In General and Present Federal Law

Blackmail is a property obtaining offense similar to extortion. It is defined in widely differing ways throughout the States, sometimes being limited to private persons (as opposed to extortion which involves public officials). Section 1723, however, is not designed to be limited to private persons. It differs from extortion (section 1722) in the nature of the threat or fear-inducing conduct which is used to obtain property. Whereas extortion is confined to a threat or placing in fear that any person will be subjected to bodily injury or kidnapping or that property will be damaged, this section covers a threat or placing in fear that principally concerns non-violent conduct, e.g., accusing a person of a crime, adversely affecting his employment, subjecting a person to economic loss, exposing a fact that will injure a person's reputation, or taking or withholding action as a public servant or causing a public servant to take or withhold such action. To the extent, however, that this section proscribes a threat or placing in fear that any person will engage in conduct constituting a crime, it overlaps section 1722 where the crime threat, or fear involves kidnapping or a crime involving bodily injury.

Present Federal law contains a number of offenses which this section would replace, many of which were discussed in connection with the previous section.

18 U.S.C. 873 punishes by up to one year in prison whoever, "under a threat of informing, or as a consideration for not informing, against any violation of any law of the United States, demands or receives any money or other valuable thing."

18 U.S.C. 874 punishes by up to five years in prison whoever, by force, intimidation, or threat of procuring dismissal from employment, or by any other manner whatsoever, induces any person employed in a public works project financed in whole or in part by loans or grants

from the United States to give up any part of the compensation to which he is entitled under his contract of employment.

A similar statute, 42 U.S.C. 2703(b), makes it an offense punishable by up to one year in prison to induce any person to give up any money or thing of value to any person by threat of procuring the dismissal of any person from employment or of refusal to employ or renew a contract of employment in connection with a grant or contract of assistance under the Economic Opportunity Act of 1964.

18 U.S.C. 875, 876, and 877 contain a two-year felony provision proscribing identical conduct but geared to the protection of a different jurisdictional interest. Thus, 18 U.S.C. 875 (d) prohibits the transmission, with intent to extort, of a communication in interstate or foreign commerce containing any "threat to injure the property or reputation of the addressee or of another or the reputation of a deceased person, or any threat to accuse the addressee or any other person of a crime." 18 U.S.C. 876 and 877 prohibit the same conduct where the communication is sent via the domestic or foreign mails."

The Hobbs Act, 18 U.S.C. 1951, which was discussed at length in relation to the previous section, punishes blackmail to the extent that it has been held to encompass placing persons not only in fear of personal injury or property damage but also in fear of economic loss or injury to their business or profession. Jurisdiction is linked to obstruction, delay, or effect upon commerce, or the movement of any article or commodity in commerce "in any way or degree."

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18 U.S.C. 872 penalizes by up to three years in prison whoever, being an officer or employee of the United States, or representing himself to be the same, under color or pretense of office, commits or attempts to commit an "act of extortion." The penalty decreases to a maximum of one year in prison if the value of the property obtained does not exceed $100.

26 U.S.C. 7214(a) punishes by up to five years in prison any officer or employee of the United States acting in connection with any United States revenue law "who is guilty of any extortion or willful oppression under color of law." The term "extortion" in the above two statutes has not been authoritatively construed and may include conduct defined in this section as blackmail.

18 U.S.C. 894 (a) (1), discussed at length in the analysis of the preceding section, punishes by up to twenty years in prison whoever knowingly participates in any way in the use of any extortionate means to collect or attempt to collect an extension of credit. The term "extortionate means" is defined in 18 U.S.C. 891 as a means which involves the use, or an express or implicit threat of use, of violence or other criminal means to cause harm to the person, reputation, or property of any person.

2. The Offense

A. Elements

Subsection (a) of section 1723 provides that a person is guilty of an offense if he "obtains property of another by threatening or placing

67 Since these statutes are not directed to the obtaining of property but punish the more inchoate conduct of communicating the threat, with intent to extort, they would be carried forward under section 1001 (Criminal Attempt) as an attempt to commit blackmail under th's section.

es See, e.g., United States v. Tropiano, supra note 29; United States v. Addonizio, supra note 60.