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Extortion By Public Officer

Extortion by a public officer has been defined as “the corrupt demanding and receiving by an officer, by color of office, of money or other thing of value, that is not due at all, or more than is due, or before it is due.”  Under common law, a public official who under color of office obtained the property of another not due either to the office or the official was guilty of extortion.  Many states have statutorily expanded the definition of the felony of extortion to include acts by private individuals under which property is obtained by means of force, fear, or threats[i].

The scope of the crime is quite wide and it encompasses any federal, state, or local officer or an executive, legislative, or judicial officer who enjoys official privileges and duties.  Some statutes confer liability on persons occupying official or quasi official position where as some statutes stipulate that only a designated class of officials comes within the purview of the statute[ii].  However, this does not mean that a public officer who does not come under any designated class will not be liable for extortion.  In the case of such conduct, such an officer will be liable under the principles of common law.

The term color of office means that the officer acts under the pretense that the officer is entitled to the fee by virtue of his/her office.  The service rendered in lieu of the money by such officer must be apparently, or under the pretense that it is within official power or authority.  However, the taking of money need not be “coercive” to find criminal liability for extortion[iii].  A public officer must accept money in his/her official capacity.  Thus, if a public officer renders a service for another and demands payment in a private capacity, such person cannot be guilty of extortion since the demand was not made under color of office[iv].

In order to be categorized as extortion under color of office, the act sought to be influenced by the taking of money must be one which is incumbent upon the officer to perform.  The officer must accept the money with intent to appropriate money with sufficient knowledge that he/she is not entitled to such money.  In other words, the taking of money should be willful and corrupt.

Also, in order to constitute extortion, the taking must be of something of value.  A “thing of value” includes “intangible objectives, and extends to the mailing of a threatening letter with the intent to extort testimony linking the defendant to pending charges against him[v].”

The crime of extortion occurs once the officer misuses his/her official position to receive some benefit.  It is not necessary that the officer must have received some personal benefit.  Although a mere promise or agreement to pay is not sufficient to constitute extortion, some courts have held that an extortive threat is sufficient to punish for the felony whether or not anything was obtained thereby[vi].  Thus, a threat or demand is not a prerequisite to liability.

An officer who illegally received a fee cannot absolve himself/herself from liability by claiming that he/ she accepted the fee merely as a tip or gratuity[vii].

[i] United States v. Nardello, 393 U.S. 286, 289 (U.S. 1969).

[ii] State v. Goodman, 9 N.J. 569 (N.J. 1952).

[iii] State v. Matule, 54 N.J. Super. 326 (App.Div. 1959).

[iv] Commonwealth v. Francis, 201 Pa. Super. 313 (Pa. Super. Ct. 1963).

[v] United States v. Nilsen, 967 F.2d 539 (11th Cir. Fla. 1992).

[vi] People v. Goodman, 159 Cal. App. 2d 54 (Cal. App. 2d Dist. 1958).

[vii] Commonwealth v. Hopkins, 165 Pa. Super. 561 (Pa. Super. Ct. 1949).

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