See United States v. Freeman, 6 F.3d 586, 593-94 (9th Cir. 1993) ("Because the evidence demonstrates that [defendant] possessed and misused official powers in connection with his [official] position . . ., we hold that a rational trier of fact could have found the essential elements of the crime of official right extortion beyond a reasonable doubt." (internal quotation marks and alteration omitted)); United States v. Loftus, 992 F.2d 793, 796 (8th Cir. 1993) ("In this case, we consider whether [defendant] promised to use his official position . . . to serve the bribe-giver's interests."). See United States v. Freeman, 6 F.3d 586, 593 (9th Cir. 1993) ("[T]he Hobbs Act reaches anyone who actually exercises official powers, regardless of whether those powers were conferred by election, appointment, or some other method.").
Because Richard did not object at trial to the district court's failure to give an entrapment instruction, we review under a plain error standard. See United States v. Loftus, 992 F.2d 793, 797 (8th Cir. 1993); United States v. Felix, 867 F.2d 1068, 1074 (8th Cir. 1989). Plain error exists only when a miscarriage of justice would otherwise result.
The same is true of a Hobbs Act extortion charge. See Evans, 504 U.S. at 268, 112 S.Ct. 1881 (recognizing that the crime of extortion under color of official right is “completed at the time when the public official receives a payment in return for his agreement to perform specific official acts”); United States v. Loftus, 992 F.2d 793, 797 (8th Cir.1993). In either case, when prosecuting a bribe recipient, the Government need only prove that he or she solicited or accepted the bribe in return for performing, or being influenced in, some particular official act. Of importance, the consummation of an “official act” is “not an element of the offense.”
Direct role, no; indirect role, yes. Dimora had considerable influence over such decisions, and he was not afraid to use it. “Actual authority over the end result ... is not controlling if [Dimora], through his official position, had influence and authority over a means to that end.” United States v. Loftus, 992 F.2d 793, 796 (8th Cir.1993). Dimora held considerable “influence” and “authority” over city employees.
Direct role, no; indirect role, yes. Dimora had considerable influence over such decisions, and he was not afraid to use it. "Actual authority over the end result . . . is not controlling if [Dimora], through his official position, had influence and authority over a means to that end." United States v. Loftus, 992 F.2d 793, 796 (8th Cir. 1993). Dimora held considerable "influence" and "authority" over city employees.
We have not previously had occasion to determine whether the power to influence by virtue of one's office satisfies the “under color of official right” requirement. However, other courts of appeals have explicitly held that the mere agreement to exercise influence is sufficient to sustain a conviction for extortion under the Hobbs Act. For example, in United States v. Loftus, 992 F.2d 793 (8th Cir.1993), a county commissioner was convicted of Hobbs Act extortion for accepting a bribe in exchange for agreeing to influence the city council's decision to rezone a property for a shopping center development. Though he was an official of the county, and not the city, Loftus told an undercover FBI informant that obtaining the votes for rezoning “would simply be a matter of swapping intergovernmental favors.”
A defendant must demonstrate more than the Government soliciting, requesting, or approaching him with an opportunity for illegal conduct to establish inducement. United States v. Loftus, 992 F.2d 793, 798 (8th Cir.1993). “When, as here, the government has not conceded the issue of inducement, the defendant's burden ought not be cast aside lightly.”
Because we find Abumayyaleh did not show inducement, we need not address whether he had the predisposition to commit the crime. See United States v. Loftus, 992 F.2d 793, 798 (8th Cir. 1993) (noting the prosecution is not required to prove predisposition when the defendant has not shown inducement). B. Sufficiency of the Evidence
Foster's reliance on Rabbitt is misplaced. First, there is no requirement under the Hobbs Act that the official must be acting in response to a pending issue; rather, an official's conduct controls an undertaking for purposes of the Hobbs Act when the property is accepted. See, e.g., Evans v. United States, 504 U.S. 255, 265-68, 112 S.Ct. 1881, 119 L.Ed.2d 57 (1992) (concluding the "under color of official right" element does not require an affirmative act of inducement by the official, and "the offense is completed at the time when the public official receives a payment in return for his agreement to perform specific official acts"); United States v. Loftus, 992 F.2d 793, 796 (8th Cir. 1993) ("When a public official accepts money and `asserts that his official conduct will be controlled by the terms of the promise or undertaking,' that official has received money `under color of official right within the meaning of the Hobbs Act.'" (quoting McCormick v. United States, 500 U.S. 257, 273, 111 S.Ct. 1807, 114 L.Ed.2d 307 (1991))).
See Manual of Model Criminal Jury Instructions for the District Courts of the Eighth Circuit, 419 (West 1994). See also United States v. Loftus, 992 F.2d 793, 797 (8th Cir. 1993). IV. CONCLUSION