[55] ALDISERT, Circuit Judge, dissenting.

It is now seven years since this court decided the seminal case of United States v. Kenny, 462 F.2d 1205 (3d Cir. 1972), announcing a revolutionary interpretation of the Hobbs Act, 18 U.S.C. § 1951. We stated therein that a Hobbs Act violation based on extortion by a public official need not include proof of threat, fear or duress. We found no error in the following jury instruction: "Extortion under color of official right is the wrongful taking by a public officer of money not due him or his office, whether or not the taking was accomplished by force, threats or use of fear."

I describe our decision as revolutionary because it became the country's landmark case interpreting extortion under the Hobbs Act and departed completely, without benefit of in banc rehearing, from Judge Rosenn's opinion for the panel in United States v. Addonizio, 451 F.2d 49, 72 (3d Cir. 1971), cert. denied, 405 U.S. 936, 92 S.Ct. 949, 30 L.Ed.2d 812 (1972), in which, discussing extortion by the mayor of Newark, it was stated that "while the essence of bribery is voluntariness, the essence of extortion is duress." (Emphasis added).

I believe this court was right in Addonizio, and that Kenny erred both in determining the substantive law and in reversing a panel decision without in banc consideration. I would cure our error by having the full court reexamine the Kenny rule in this case, and order a new trial because the trial judge gave a Kenny charge and refused an Addonizio point for instruction.

It is now my view that our interpretation in Kenny and its progeny is not supported by the legislative intent underlying the Hobbs Act nor is it historically accurate. I believe that our failure to reexamine its rationale has resulted in a perpetuation of erroneous law not only in this circuit but in the First, Second, Fourth, Seventh, Eighth and Tenth Circuits which have followed our lead without setting forth a reasoned elaboration for their conclusions.

I.

A year after deciding Addonizio, with less than one page of discussion we affirmed the extortion conviction of a public official without "proof of threat, fear, or duress." Kenny, 462 F.2d at 1229. We said, "But while private persons may violate the statute only by use of fear and public officials may violate the act by use of fear, persons holding public office may also violate the statute by a wrongful taking under color of official right." Id. Authority for this disjoinder of the "force, violence, or fear" and the "color of official right" phrases of § 1951(b)(2) was said to be found in United States v. Nardello, 393 U.S. 286, 289, 89 S.Ct. 534, 21 L.Ed.2d 487 (1969); United States v. Sutter, 160 F.2d 754, 756 (7th Cir. 1947); State v. Begyn, 34 N.J. 35, 167 A.2d 161 (1961); and State v. Weleck, 10 N.J. 355, 91 A.2d 751, 759-760 (1952).

Nardello was an extortion case brought under the Travel Act, 18 U.S.C. § 1952, holding that extortion under the Act encompasses acts of private individuals who obtain money by virtue of fear and threats. The decision was essentially an interpretation of the § 1952(b)(2) proscription of "extortion . . . in violation of the laws of the State in which committed or of the United States." Rejecting petitioners' contention that their conduct was blackmail, not extortion, under Pennsylvania statute, the Court defined the federal crime of extortion:

Prosecutions under the Travel Act for extortionate offenses involving only private individuals have been consistently maintained. . . . Although only private individuals are involved, the indictment encompasses a type of activity generally known as extortionate since money was to be obtained from the victim by virtue of fear and threats of exposure. . . . [W]e decline to give the term "extortion" an unnaturally narrow reading, . . . and thus conclude that the acts for which appellees have been indicted fall within the generic term extortion as used in the Travel Act.

Nardello, supra, 393 U.S. at 295-96, 89 S.Ct. at 539. Clearly, the decision was tied to the Travel Act prohibition of extortion, and nowhere supports the notion that public officials may commit extortion without threat, fear or duress under § 1951.

Sutter reversed the conviction of a federal employee charged with violating 18 U.S.C. § 171, a statute which prohibited, but did not define, extortion. The court reasoned that because "[t]here are no common law crimes within the jurisdiction of the Federal Government," and because "Congress did not see fit to define extortion in the terms known to the common law . . . extortion is used in its common, ordinary sense as distinguished from the sense in which it was known at common law." Sutter, 160 F.2d at 756. After quoting Webster's definition of extortion, the court held,

Under this statute, a Federal employee is guilty only if he uses his office to place another under compulsion of fear, force or the undue exercise of power, so that such person parts with something of value unwillingly and involuntarily. It is the oppressive use of official position that is the essence of this offense.

Id.

State v. Begyn, in obiter dictum, briefly discussed extortion under New Jersey statute and common law even though Begyn had not been tried for extortion. State v. Begyn, 167 A.2d at 166-67. State v. Weleck, likewise, discusses New Jersey statutory and common law extortion. Neither of these cases should be a ground for the interpretation of a federal statute enacted years before the cases were decided.

All of this might be relevant to the interpretation of 18 U.S.C. § 1951 if it were assumed that the Hobbs Act incorporated the common law definition of extortion. Unfortunately, the cases cited by the Kenny court beg that question. Indeed, the Supreme Court in Nardello held that the Travel Act offense of extortion was not equivalent to the common law offense as did the Seventh Circuit in Sutter as to 18 U.S.C. § 171.

A brief passage from State v. Begyn, supra, shows the fragility of its relevance to the Kenny conclusion:

The essence of [extortion under the common law] was the receiving or taking by any public officer, by color of his office, of any fee or reward not allowed by law for performing his duties. The purpose would seem to be simply to penalize the officer who non-innocently insisted on a larger fee than he was entitled to or a fee where none was permitted or required to be paid for the performance of an obligatory function of his office. The matter was obviously of particular importance in the days when public officials received their compensation through fees collected and not by fixed salary. Our early cases dealt with precisely this kind of a situation.

Begyn, supra, 167 A.2d at 166. Obviously, that common law definition was of less importance when public officials received salaries, so that "[i]n many States . . . the crime of extortion has been statutorily expanded to include acts by private individuals under which property is obtained by means of force, fear, or threats." Nardello, supra, 393 U.S. at 286, 89 S.Ct. at 536. Nardello, adopted the government's suggestion that under the Travel Act, "Congress intended that extortion should refer to those acts prohibited by state law which would be generically classified as extortionate, i. e., obtaining something of value from another with his consent induced by the wrongful use of force, fear, or threats." Id. at 290, 89 S.Ct. at 536. Such crimes are called extortion, blackmail, theft by intimidation, or are classified "under the general heading of offenses directed against property." Id. at 288-90, 89 S.Ct. at 536.

Such an interpretation makes sense due to the Travel Act's proscription of "extortion, bribery, or arson," making all three punishable by a maximum of five years imprisonment. 18 U.S.C. § 1952(b)(2). It would not make sense under the Hobbs Act, which prohibits only robbery and extortion, making both punishable by twenty years imprisonment. Recognizing that the Hobbs Act requires a distinction between behavior which constitutes bribery and acts constituting extortion, I believe it is also essential to distinguish common law extortion from the crime that Congress intended to punish under the Hobbs Act.

II.

At bottom, then, we are faced with the interpretation of a criminal statute. I am quick to concede that a purely semantic approach to the statutory language can substantiate a decision that no duress need be proved because the statute provides: "induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." In an earlier era of our jurisprudential tradition this literal interpretation might have carried.

In 1899 Holmes lamented, "We do not inquire what the legislature meant; we ask only what the statute means." He would not voice this complaint today, for although contemporary courts are fond of stating that "[t]he starting point in every case involving the construction of a statute is the language itself," methodology now appears to abjure a strictly semantic approach. We have played with the Mischief Rule of Heydon's case, the Golden Rule, and the Literal Rule. We have dallied with what American jurisprudence has called the "Plain Meaning Rule."

Impressive authorities have warned us not to depend too much on the actual language of a statute. Cardozo said that "[w]hen things are called by the same name, it is easy for the mind to slide into an assumption that the verbal identity is accompanied in all its sequences by identity of meaning." Holmes told us: "A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used." Learned Hand said "it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning."

Current wisdom requires judges to ascertain the "legislative intent," a task somewhat akin to pinpointing the intent of a testator or of disputing parties to a contract. Proper judicial construction, in the modern view, requires recognition and implementation of the underlying legislative purpose; the judge, the theory holds, must accommodate the societal claims and demands reflected in that purpose. To do this, as Justice Roger J. Traynor puts it, we need "literate, not literal" judges, lest a court make a construction within the statute's letter, but beyond its intent.

This approach to statutory precept demonstrates a fundamental difference in the judicial process today from that of a half century past. Today, what the legislature has said is not as important as what it intended. Its words will be respected, it is true, but its intentions will be discovered and given equal, if not superior, respect. Very seldom do we now encounter the watchwords of another day: "If the words are plain, they give meaning to the act, and it is neither the duty nor the privilege of the courts to enter speculative fields in search of a different meaning." Rather, we now say, "When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no `rule of law' which forbids its use, however clear the words may appear on `superficial examination.'" That we no longer follow the rigid semantic approach is sound, because in the common law tradition a rule from case law is never considered in vacuo. The reason for the rule is always considered. In sum, the purpose, the subject matter, the context, and the legislative history appear to be the major aids in considering statutory precept today. It is to the legislative history of the Hobbs Act that I now turn.

III.

Judge Gibbons' dissenting opinion in United States v. Mazzei, 521 F.2d 639, 651-55 (3d Cir.) (in banc), cert. denied, 423 U.S. 1014, 96 S.Ct. 446, 46 L.Ed.2d 385 (1975), sets forth in detail the legislative history of 18 U.S.C. § 1951(b)(2), the extortion section of the Hobbs Act under which appellants were convicted. A summary of the important points in that discussion will be sufficient.

The word "extortion" first appeared in the Anti-Racketeering Act of 1946 which amended the Anti-Racketeering Act of 1934. Although the 1934 statute did not use the term, it did proscribe what must have been intended as common law extortion, that is, obtaining property "under color of official right." The latter language has been carried forward without change since the initial Act so that whatever congressional intention may be ascribed to that term must be found in the records of the Seventy-third Congress.

Nothing in the legislative history shows that the 1934 Act was intended to permit federal authorities to police influence peddling in the political processes of the states. Indeed, whatever legislative history there is suggests a contrary conclusion. The 1934 Act originated in the Senate as S. 2248, 73d Cong., 2d Sess. (1934), reprinted in 78 Cong. Rec. 457-58 (1934), and contained no reference to extortion by "color of official right." After passing the Senate, 78 Cong. Rec. 5734 (1934), it was submitted in the House, where it was completely amended and a new bill substituted. The reasons for this amendment have been described by the Supreme Court in United States v. Teamsters Local 807, 315 U.S. 521, 529, 62 S.Ct. 642, 645, 86 L.Ed. 1004 (1942), as follows:

After the bill had passed the Senate, however, representatives of the American Federation of Labor expressed fear that the bill in its then form might result in serious injury to labor, and the measure was redrafted by officials of the Department of Justice after conferences with the President of the Federation.

With the House revision the term "color of official right" appeared for the first time.

The House Report, submitted along with its new version of S. 2248 (H.R. 6926), was short. In addition to the text of the new bill, it reprinted a letter written by the Attorney General to the Chairman of the House Judiciary Committee. H.R.Rep. No. 1833, 73d Cong., 2d Sess. 2 (1934). In United States v. Teamsters Local 807, the Supreme Court placed heavy emphasis on this letter as a tool to interpret the 1934 Act. The substance of the letter is contained in these paragraphs:

The original bill was susceptible to the objection that it might include within its prohibition the legitimate and bona fide activities of employers and employees. As the purpose of the legislation is not to interfere with such legitimate activities but rather to set up severe penalties for racketeering by violence, extortion, or coercion, which affects interstate commerce, it seems advisable to definitely exclude such legitimate activities.

As the typical racketeering activities affecting interstate commerce are those in connection with price fixing and economic extortion directed by professional gangsters, we have inserted subparagraphs (a) and (b), making such activities unlawful when accompanied by violence and affecting interstate commerce.

The Sherman Antitrust Act is too restricted in its terms and the penalties thereunder are too moderate to make that act an effective weapon in prosecuting racketeers. The antiracketeering bill would extend the Federal jurisdiction in those cases where racketeering acts are related to interstate commerce and are therefore of concern to the Nation as a whole.

Judge Gibbons' opinion pointedly referred to a comment by Congressman Oliver of New York, during the floor debate after the bill had cleared committee: "This is merely the creation of an extortion statute against those who extort money by force or violence from those engaged in interstate commerce." 78 Cong.Rec. 11402 (1934).

The drafters of the 1934 Act took the term "color of official right" from the New York Penal Law of 1909 which defined the crime of extortion as follows:

Extortion is the obtaining of property from another, or the obtaining the property of a corporation from an officer, agent or employee thereof, with his consent, induced by a wrongful use of force or fear, or under color of official right.

Compare this language with § 2(b) of the 1934 Act:

Obtains the property of another, with his consent, induced by wrongful use of force and fear, or under color of official right;

The similarity between the definitions is consistent with legislative history. Congressman Hobbs of Alabama, sponsor of the bill, stated that "there is nothing clearer than the definitions of robbery and extortion in this bill. They have been construed by the courts not once, but a thousand times. The definitions in this bill are copied from the New York Code substantially." 91 Cong.Rec. 11900 (1945). Congressman Hancock of New York stated: "The bill contains definitions of robbery and extortion which follow the definitions contained in the laws of the State of New York." Id. Judge Gibbons summed up the relevance of New York law as follows:

While the meaning attributed to the term "color of official right" by the New York legislature and courts is by no means dispositive of the congressional intent in using the phrase, it is highly persuasive both because its meaning in New York has long been settled and because the legislative history indicates no intention to change that meaning.

521 F.2d at 653. It is therefore critical to examine the New York law of extortion.

IV.

Advice has been offered by Professor Charles F. C. Ruff, former Director, Watergate Special Prosecution Force, that New York made a clear distinction between extortion "by a wrongful use of force or fear," which was punishable as a felony, and extortion "under color of official right" which was a misdemeanor:

Extortion under color of official right was in turn divided into two parts: oppression, defined as the unlawful and malicious arresting of an individual or seizure of his property,[75] and extortion, defined as a public officer's asking, receiving, or agreeing to receive a fee in excess of that allowed by statute or when no such fee is authorized.[76] Both of these offenses were misdemeanors, whereas the larceny-type offenses were felonies carrying sentences of up to twenty years in prison.[77]

[75] See N.Y. Penal Law app. § 854 (McKinney 1967).

[76] Id. § 855.

[77] Id. § 852.[]

The relationship of the New York Penal Code to the Hobbs Act definition of extortion is of paramount importance in considering the elements of the § 1951 offense because of two fundamental precepts of statutory interpretation. First, it is elementary that the ultimate aim is to ascertain the intention of Congress in the enactment of a statute, and that intention, when discovered, must prevail. "In the interpretation of statutes, the function of the court is easily stated. It is to construe the language so as to give effect to the intent of Congress." United States v. American Trucking Associations, 310 U.S. 534, 542, 60 S.Ct. 1059, 1063, 84 L.Ed. 1345 (1940). Second, any ambiguity which exists in a penal statute must be construed in favor of the defendant. Chief Justice Marshall stressed the predominance of this rule over other "maxims or rules for the construction of statutes":

The rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals; and on the plain principle, that the power of punishment is vested in the legislative, not in the judicial department.

United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95, 5 L.Ed. 37 (1820). The Supreme Court has reaffirmed Chief Justice Marshall's admonition consistently through the years, as recently as United States v. Naftalin, ___ U.S. ___, ___, 99 S.Ct. 2077, 60 L.Ed.2d 624 (1979). For our purposes, the reasons for the rule are as important as the rule itself. An examination of these reasons demonstrates that this court did violence both to the rule and its reasons when we opted for the broad interpretation of extortion in Kenny. When a choice is to be made between two readings of a federal criminal statute, "it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite." United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 222, 73 S.Ct. 227, 229, 97 L.Ed. 260 (1952).

I believe that the congressional intent underlying the Hobbs Act is clearly and unambiguously disclosed by its legislative history. Not only is there a total lack of specific congressional intent that the Act apply to state and local public officials in the absence of violence or coercion, but the legislative history indicates that Congress intended to rely on the New York law of extortion for its definition of the crime. To hold otherwise is to defy the Supreme Court's admonition that "because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity." United States v. Bass, 404 U.S. 336, 348, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1971) (my emphasis). It is said that this policy embodies an instinctive revulsion against men languishing in prison unless the lawmaker has clearly said they should. Id. Thus, one of the basic errors we committed when we embarked on the Kenny journey was to ignore the mandate that "where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant." Adamo Wrecking Co. v. United States, 434 U.S. 275, 285, 98 S.Ct. 566, 573, 54 L.Ed.2d 538 (1978).

Extortion under color of official right under the New York schema must implicate (1) oppression, as therein defined, and not applicable in Kenny or here, (2) extortion in the sense of the original common law formulation, defined as a public officer's asking, receiving, or agreeing to receive a fee where no fee is authorized or in excess of that allowed by statute, or (3) extortion by wrongful use of force or fear. Unless money is received under a specific misrepresentation that it is an authorized fee, a public official cannot be guilty of extortion under New York law in the absence of duress.

The salient feature of New York extortion law is the unusually clear distinction between the offenses of bribery and extortion. This is manifested in People v. Dioguardi, 8 N.Y.2d 260, 203 N.Y.S.2d 870, 168 N.E.2d 683 (1960), which held that bribery and extortion were "mutually exclusive crimes" and that a defendant charged with extortion was entitled to acquittal if the jury found that he had been bribed. Id., 8 N.Y.2d at 273-74, 203 N.Y.S.2d at 881-82, 168 N.E.2d at 692. The court reasoned that bribery "makes the payor equally as guilty as the payee, which could never be the case with extortion," and that the payee could not be guilty of extortion if the payor were guilty of bribery, id. (emphasis added), relying on People v. Feld, 262 App. Div. 909, 28 N.Y.S.2d 796 (1941), and on Hornstein v. Paramount Pictures, 22 Misc.2d 996, 1003, 37 N.Y.S.2d 404, 412 (Sup.Ct. 1942), aff'd 266 App. Div. 659, 41 N.Y.S.2d 210, aff'd 292 N.Y. 468, 55 N.E.2d 740, both of which were decided well before the enactment of the Hobbs Act. The holding of People v. Feld was that bribery of a labor representative and extortion were mutually exclusive crimes; Hornstein held that "the essence of bribery is the voluntary giving of something of value to influence the performance of official duty, whereas the essence of extortion is duress." Dioguardi, supra, 203 N.Y.S.2d at 882, 168 N.E.2d at 692.

Although this nuance of New York law has been criticized as a " unique interpretation" which should not restrict federal courts applying the Hobbs Act, I believe it is totally consistent with the common law origins of the offenses. Moreover, congressional reliance on New York law demands adherence to that interpretation, however it may differ from the law of other states.

V.

Our conclusion in Kenny is not justified by any reference to the common law origins of the crimes of extortion and bribery. I make this statement with full awareness that true common law definitions are somewhat elusive.

The historical basis of extortion, a common law misdemeanor, was the corrupt collection of an unlawful fee under color of public office. The requirement that the unlawful fee be associated with the office held by the recipient is central to an understanding of the traditional Blackstonian definition generally expressed in broader language. Professor Perkins advises:

A fee collected under color of office is unlawful if — (1) the law does not authorize a fee for the purpose for which this fee is collected, or (2) a fee is authorized but only in an amount smaller than that collected, or (3) a fee might be authorized but none was due at the time this fee was collected. For this reason Blackstone defined extortion as "an abuse of public justice, which consists in any officer's unlawfully taking, by colour of his office, from any man, any money or thing of value that is not due to him, or more than is due, or before it is due." Since a fee is unlawful under any one of the three circumstances the simpler wording is preferred for purposes of definition.

Against the backdrop of this common law history, it becomes important to understand exactly what Judge, later Justice, Minton meant in United States v. Sutter, supra, when, in dictum, he stated that at common law "color of public office took the place of the force, threats, or pressure implied in the ordinary meaning of the word extortion." If this statement means that no force, threat, or pressure need be proved if the officer charged an official fee when none was required by law or charged a fee larger than that provided by law, it is proper. But if, outside the context of charging an improper fee for the mandatory performance of official duty, the statement means that one need not prove force, fear or duress at common law to prove wrongdoing on the part of an official, then I agree with Professor Ruff that this is "an explanation wholly at odds with the true common law origins of the offense." That a number of courts have subsequently parroted Minton's formulation does not legitimate what was illegitimate when first uttered. Error is not cured by repetition.

On the other hand, the common law misdemeanor of bribery is an offense which may be committed both by the giver and the recipient. It originated as an offense which could only be committed by a judge or other person concerned with the administration of justice but was broadened in the eighteenth century to extend beyond the conduct of judicial officers. A bribe has been defined as "something given for the purpose of improperly influencing official action, and either giving or accepting a bribe constitutes bribery."

There is an obvious correlation between the common law offenses of bribery and extortion. Nevertheless, in addition to the fact that both a bribe giver and a bribe taker are guilty of bribery whereas the victim of extortion is innocent, another distinction between the offenses is apparent. The later development of the crime of extortion, including blackmail, occurred "in order to plug a loophole in the robbery law by covering sundry threats which will not do for robbery. . . . [B]oth crimes equally require that the defendant's threats induce the victim to give up his property, something which he would not otherwise have done." Thus, although both bribery and extortion originated as offenses related to performance of public office, bribery is a victimless crime whereas extortion developed along the lines of robbery.

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.

Accordingly, congressional references to New York's law of extortion in a statute which did not proscribe bribery but was passed "to set up severe penalties for racketeering by violence, extortion, or coercion," creating a twenty year penalty, necessitate a Hobbs Act interpretation which includes the element of fear, threat or duress. 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 jurisprudentially sound to permit a defense of bribery. To hold otherwise is to blur completely the distinction between the two crimes. Our Kenny rule has precisely that effect.

The government supports this result for an obvious and self-serving reason. To obtain a conviction under the Hobbs Act, with its possible twenty year sentence, the government must prove "robbery or extortion," 18 U.S.C. § 1951(a); bribery is not illegal under the Hobbs Act. To establish a federal case of bribery implicating a state official, the government must resort to the Travel Act, 18 U.S.C. § 1952 (1970), which prohibits both bribery and extortion. But the Hobbs Act jurisdictional base is much broader than that of the Travel Act. An essential element of any Travel Act offense is the requirement of travel in interstate commerce, or the use of interstate commerce facilities. Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1971), noted that Congress did not intend overly broad application of the Travel Act which "would alter sensitive federal-state relationships, could overextend limited federal police resources, and might well produce situations in which the geographic origin of customers, a matter of happenstance, would transform relatively minor state offenses into federal felonies."

Prior to ascending the District Court bench in New Jersey, Judge Herbert J. Stern was the government prosecutor in Kenny. In urging an expansive meaning of extortion in the prosecution of public officials under the Hobbs Act, he wrote:

Under the Travel Act, the courts have required deliberate, knowing interstate travel or the similar use of interstate facilities to achieve the illegal act. However, under the Hobbs Act it has been held that if, in fact, the "extortion" affected interstate commerce, there is a violation of the Act notwithstanding the absence of an intent to have this effect, or even the absence of any anticipation that such an effect might result. . .

Thus, in situations where interstate travel or use of interstate facilities cannot be proven, or where the knowing use of them by the public official cannot be demonstrated, the federal government will often have to prosecute local political corruption under the Hobbs Act or not at all.

But the fact that a government prosecutor who wants "to prosecute local political corruption" finds it easier to establish federal jurisdiction under the Hobbs Act than under the Travel Act cannot possibly form a reasoned basis for obliterating the distinction between the separate crimes of extortion and bribery or for affirming the Hobbs Act convictions of local public officials who were not permitted the defense that they were bribed. Our tolerance of this prosecutorial legerdemain is an indulgence in jurisprudential anarchy at the expense of basic tenets of criminal law — the presumption of innocence, the government's burden in all prosecutions, and the basic maxim nullum crimen, nulla poena. One charged with extortion, carrying a twenty year Hobbs Act penalty, should have the option of defending on the basis that he is guilty only of bribery under the Travel Act, carrying a five year penalty. This is an option, in my view, explicitly granted by the Congress. It is an option, unfortunately, which is substantially foreclosed by our decision in Kenny.

VI.

The grave danger of our Kenny rule is its potential of embracing myriad situations which threaten fundamental federal-state relations and of creating very real tensions in the traditional operations of political party fund raising. The case at bar is illustrative of one set of circumstances. United States v. Trotta, 525 F.2d 1096 (2d Cir. 1975), cert. denied, 425 U.S. 971, 96 S.Ct. 2167, 48 L.Ed.2d 794 (1976), illustrates another facet of the problem. There, a municipal commissioner of public works was charged with demanding that a firm of consulting engineers contribute to the local Republican Committee. The district judge dismissed the indictment because it did not charge that there had been any adverse action, any threat of action, or, indeed, any relationship between the demand for contributions and any contract awarded by the defendant. The Second Circuit reversed, relying on another of Kenny's progeny, United States v. Braasch, 505 F.2d 139, 151 (7th Cir. 1974), cert. denied, 421 U.S. 910, 95 S.Ct. 1561, 43 L.Ed.2d 775 (1975), stating, "So long as the motivation for the payment focuses on the recipient's office, the conduct falls within the ambit of 18 U.S.C. § 1951." Trotta, supra, 525 F.2d at 1100. The decision utilizes this far-reaching language:

[I]t does not matter whether Trotta "induces payments to perform his duties or not to perform his duties." Nor does it matter that payments may have been induced simply by assertion of power or pressure stemming from Trotta's position as a public official. United States v. Price, 507 F.2d 1349 (4 Cir. 1974). To repeat, it is the use of the power of the public office itself to procure the payments of money not owed to the public official or his office that constitutes the offense. This was adequately alleged; and we, therefore, hold that the indictment is sufficient on its face.

525 F.2d at 1100-01. Professor Ruff's observations on this holding are significant:

[I]f a public official who asks for a political contribution from one who does, or may do, business with the government can be prosecuted on proof of those, facts alone, then the Hobbs Act has become an extraordinary mechanism for controlling political activity on the state and local levels. . . . If the Trotta opinion means that a local government official commits extortion by soliciting a contribution from an organization that has or might have contracts with his agency, and is thereby liable to be imprisoned for twenty years, one may well ask whether a governor who attends a fundraising dinner and solicits contributions from the businessmen present has committed a felony.

Applying his analogy to the case at bar, an intriguing question comes to mind. The prosecutor in this case was United States Attorney Richard Thornburgh who is now Governor of Pennsylvania. Can it be said that Governor Thornburgh, a man of the highest moral principles, would be guilty of a Hobbs Act violation if he now were to appear at a fundraising dinner and solicit contributions for his political party from Pennsylvania businessmen? I think not. But the Second Circuit believes that Kenny would allow it because such an act would have been done under color of office and there is no requirement of duress. I am quick to add that this is a hypothetical case and is not set forth here as an example of the facts at bar. But it is exactly the type of "Hobbs Act run rampant" that should immediately be checked by in banc reconsideration of this court's Kenny rule.

Accordingly, I dissent, and would order a new trial for all appellants.

. . . . .

(2) 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.