United States v. Benjamin

22-3091
United States v. Benjamin

In the
United States Court of Appeals
FOR THE SECOND CIRCUIT

AUGUST TERM 2022
No. 22-3091

UNITED STATES OF AMERICA,
Appellant,

v.

BRIAN BENJAMIN,
Defendant-Appellee. *

On Appeal from the United States District Court
for the Southern District of New York

ARGUED: MAY 2, 2023
DECIDED: MARCH 8, 2024

Before: KEARSE, JACOBS, and MENASHI, Circuit Judges.

Brian Benjamin was indicted on charges of federal funds
bribery, honest services wire fraud, conspiracy to commit each of
those offenses, and falsifying records. The U.S. District Court for the
Southern District of New York dismissed three of the charges—

* The Clerk of Court is directed to amend the caption as set forth above.
federal funds bribery, honest services wire fraud, and conspiracy to
commit these two crimes—on the ground that the indictment failed
to allege an explicit quid pro quo between Benjamin and his campaign
donor. We conclude that the indictment sufficiently alleged an
explicit quid pro quo. Therefore, we reverse the judgment of the district
court and remand for further proceedings.

HAGAN SCOTTEN, Assistant United States Attorney
(Jarrod L. Schaeffer, Assistant United States Attorney, on
the brief), for Damian Williams, United States Attorney for
the Southern District of New York, New York, NY, for
Appellant.

BARRY BERKE (Dani R. James, Darren LaVerne, on the
brief), Kramer Levin Naftalis & Frankel LLP, New York,
NY, for Defendant-Appellee.

MENASHI, Circuit Judge:

Brian Benjamin served as a state senator in New York from 2017
to 2021. In early 2019, Benjamin decided to run for New York City
comptroller. Early in his campaign, Benjamin allegedly agreed to
allocate $50,000 in state funds to a non-profit organization that was
controlled by Gerald Migdol, a real estate developer in Benjamin’s
district, in exchange for campaign contributions that Migdol
provided. Benjamin allegedly attempted to conceal the arrangement
by falsifying campaign forms, misleading regulators, and providing
false information during his background check when he was
nominated to be lieutenant governor of New York.

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 On April 11, 2022, a grand jury returned an indictment with
five charges. Count One charged Benjamin with conspiracy to commit
bribery and honest services wire fraud in violation of 18 U.S.C. § 371.
Count Two charged Benjamin with soliciting bribes in violation of 18
U.S.C. § 666(a)(1)(B). Count Three charged Benjamin with honest
services wire fraud in violation of 18 U.S.C. §§ 1343 and 1346. Counts
Four and Five charged Benjamin with falsifying records in violation
of 18 U.S.C. § 1519.

Prior to trial, Benjamin moved to dismiss the indictment,
claiming that the government had not sufficiently alleged an explicit
quid pro quo, as required to sustain a charge of bribery against a public
official in connection with campaign contributions. The district court
agreed and dismissed Counts One, Two, and Three on December 5,
2022. The government appealed, and the trial on Counts Four and
Five was adjourned pending this appeal.

We conclude that the indictment sufficiently alleged an explicit
quid pro quo for the purposes of Counts One, Two, and Three.
Therefore, we reverse the judgment of the district court and remand
for further proceedings.

BACKGROUND

A

“In reviewing the district court’s dismissal of the indictment,
we accept as true all of the allegations of the indictment.” United States
v. Goldberg, 756 F.2d 949, 950 (2d Cir. 1985). Benjamin served as a state
senator from 2017 to 2021. In 2019, Benjamin decided to run for New
York City comptroller. Gerald Migdol, a real estate developer in
Benjamin’s district, had previously made contributions to Benjamin’s
campaign for state senator, and Benjamin had attended events
associated with Migdol’s non-profit organization, Friends of Public

3
School Harlem (“FPSH”). In March 2019, Benjamin informed Migdol
of his plan to run for comptroller and sought Migdol’s help in
obtaining small-dollar campaign contributions. Migdol expressed
concern that soliciting campaign contributions for Benjamin would
displace donations to FPSH. Benjamin responded by stating, “Let me
see what I can do.”

About two months later, Benjamin discovered that he had the
authority as a state senator to allocate up to $50,000 in state grants to
school districts, libraries, and non-profit organizations in his district.
On or about May 31, 2019, Benjamin informed Migdol that he would
be allocating the full $50,000 to FPSH. Migdol later stated that he
understood Benjamin to be offering the grant allocation in return for
Migdol obtaining contributions to Benjamin’s campaign.

At Benjamin’s request, the New York State Senate allocated
$50,000 to FPSH in June 2019. The following day, Benjamin texted
Migdol to notify him that the grant had been allocated, although the
grant still needed the approval of the administering state agencies
before it would be disbursed. On July 8, 2019, Benjamin and Migdol
met in Benjamin’s senate office, and Migdol gave three checks to
Benjamin, totaling $25,000, to be paid to “Benjamin for New York,”
Benjamin’s senate campaign. Two of the checks, for $10,000 each,
were made out in the name of one of Migdol’s relatives. A third check
for $5,000 was made out on behalf of a limited liability company that
Migdol controlled. Migdol communicated to Benjamin that the
money came from Migdol himself, despite the names on the checks.
Benjamin accepted the checks, and Migdol completed the required
campaign finance forms in Benjamin’s presence. Benjamin reminded
Migdol about the grant and his expectation that Migdol would
procure small-dollar donations on behalf of his comptroller
campaign.

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 In September 2019, Benjamin attended a fundraising event for
FPSH. At the event, he presented Migdol and FPSH with an oversized
novelty check in the amount of $50,000. Benjamin called Migdol the
next month to clarify that—in order to qualify for the public funds
matching program for New York City municipal races, which
matched donations at a ratio of 8 to 1—the contributions to his
comptroller campaign should be no larger than $250 and paid by
check or money order.

In October 2019, Migdol began providing contributions to
Benjamin’s comptroller campaign, often falsifying donor names or
covertly funding the contributions himself by reimbursing the listed
donors. Benjamin remained in contact with Migdol regarding his
efforts and encouraged Migdol to provide more contributions. At one
point, according to the indictment, “Benjamin met with [Migdol] on
the street to collect a bundle of [Migdol] contributions.” App’x 10.
Meanwhile, FPSH proceeded through the administrative process to
ensure the disbursement of the grant. FPSH halted its efforts to obtain
the grant in January 2021, following a news story about Migdol’s
participation in fraudulent contributions to Benjamin’s campaign.

In June 2021, Benjamin lost his campaign for New York City
comptroller. Later that year, Governor Kathy Hochul considered
Benjamin for lieutenant governor. During the vetting process,
Benjamin attempted to conceal his arrangement with Migdol. In
doing so, he denied to regulators that Migdol had procured
contributions to his campaign. In his background check, Benjamin
also stated that he had never exercised legislative authority in any
matter concerning someone from whom he solicited contributions.
On September 9, 2021, Benjamin became lieutenant governor. He
resigned his post on April 12, 2022, when he was indicted.

5
 B

Before the U.S. District Court for the Southern District of New
York, Benjamin moved to dismiss Counts One, Two, and Three,
arguing that the counts failed to allege an explicit “quid pro quo,” as
required by McCormick v. United States, 500 U.S. 257 (1991). The
district court agreed with Benjamin and dismissed these counts of the
indictment.

In its decision, the district court stated that “the Indictment fails
to allege an explicit quid pro quo, which is an essential element of the
bribery and honest services wire fraud charges brought against
Benjamin.” United States v. Benjamin, No. 21-CR-706, 2022 WL
17417038, at *1 (S.D.N.Y. Dec. 5, 2022). It noted that under McCormick,
a quid pro quo “must involve a payment made in return for an explicit
promise or undertaking.” Id. at *6 (internal quotation marks omitted).
The district court also held that the standard of Evans v. United States,
504 U.S. 255 (1992), was inapposite because that standard applied
only to cases not involving campaign contributions. Benjamin, 2022
WL 17417038, at *6-8. The district court described Evans as holding
that a quid pro quo “can be proven inferentially, based on the
implication that an official has knowingly accepted a payment
intended to compensate him for an official act.” Id. at *6. In so holding,
the district court relied on dicta from our opinions in United States v.
Ganim, 510 F.3d 134 (2d Cir. 2007), and United States v. Garcia, 992 F.2d
409 (2d Cir. 1993). Although neither Ganim nor Garcia involved
campaign contributions, we said in those cases that Evans “modified
[McCormick’s] standard in non-campaign contribution cases by
requiring that the government show only that a public official has
obtained a payment to which he was not entitled, knowing that the
payment was made in return for official acts.” Ganim, 510 F.3d at 143
(internal quotation marks omitted) (quoting Garcia, 992 F.2d at 414).

6
 Because it determined that Evans was inapposite, the district
court examined McCormick’s requirement of an “explicit” quid pro quo.
According to the district court, “if one thing is clear, it is that an
‘explicit’ promise cannot be satisfied by implication, as it would be
contradictory to hold that a quid pro quo agreement could be
simultaneously ‘explicit’ and ‘implicit.’” Benjamin, 2022 WL 17417038,
at *9. The district court noted the distinction in Justice Kennedy’s
concurring opinion in Evans “between an ‘express’ agreement and
one ‘implied from words and actions.’” Id. (quoting Evans, 504 U.S. at
274 (Kennedy, J., concurring in part and concurring in the judgment)).
The district court explained that, under McCormick, “the pro itself [that
is, the agreement] must be clear and unambiguous—and
characterized by more than temporal proximity, winks and nods, and
vague phrases like ‘let me see what I can do.’” Id. at *10. The district
court held that McCormick requires this sort of unambiguous quid pro
quo in the campaign contribution context. Because the indictment did
not allege an agreement that was expressly stated, the district court
dismissed Counts One, Two, and Three for “failure to charge an
essential element.” Id. at *15. 1

Finally, the district court observed that concerns about freedom
of speech and due process “weigh[ed] in favor of a stricter
interpretation of the ‘explicit’ quid pro quo requirement,” Benjamin,
2022 WL 17417038, at *13, and that it was best “to err on the side of

1In addition, the district court held that, to establish an explicit quid pro quo,
“the explicit agreement must precede the official conduct.” Benjamin, 2022
WL 17417038, at *16. The district court based this holding on the Supreme
Court’s statement in McCormick that prohibited conduct occurs when “the
official asserts that his official conduct will be controlled by the terms of the
promise.” Id. (quoting McCormick, 500 U.S. at 273). According to the district
court, the indictment did not allege a clear and unambiguous agreement
prior to Benjamin’s conduct in awarding the $50,000 grant.

7
protecting political speech rather than suppressing it,” id. (quoting
McCutcheon v. FEC, 572 U.S. 185, 209 (2014)). Because there was
“confusion among the courts” as to the standard in campaign
contribution cases—and because of the language in Ganim and
Garcia—the district court held that Benjamin could not have had fair
warning that he could be charged for conduct that “did not clearly
involve an ‘explicit’ quid pro quo.” Id.

LEGAL STANDARDS

“The dismissal of an indictment is an extraordinary remedy
reserved only for extremely limited circumstances implicating
fundamental rights.” United States v. De La Pava, 268 F.3d 157, 165 (2d
Cir. 2001) (internal quotation marks omitted). We review the
dismissal of an indictment de novo, United States v. Gonzalez-Roque, 301
F.3d 39, 44 (2d Cir. 2002), accepting “as true all of the allegations of
the indictment” and disregarding “[c]ontrary assertions of fact by the
defendants,” Goldberg, 756 F.2d at 950.

The Sixth Amendment guarantees that “in all criminal
prosecutions, the accused shall enjoy the right … to be informed of
the nature and cause of the accusation.” U.S. Const. amend. VI. Rule 7
of the Federal Rules of Criminal Procedure implements that
constitutional guarantee by requiring that the indictment “be a plain,
concise, and definite written statement of the essential facts
constituting the offense charged.” Fed. R. Crim. P. 7(c)(1). The
Supreme Court has held that an indictment is sufficient if it
(1) “contains the elements of the offense charged and fairly informs a
defendant of the charge against which he must defend” and
(2) “enables him to plead an acquittal or conviction in bar of future
prosecutions for the same offense.” Hamling v. United States, 418 U.S.
87, 117 (1974). “An indictment, however, need not be perfect, and

8
common sense and reason are more important than technicalities.” De
La Pava, 268 F.3d at 162. Therefore, “an indictment need do little more
than to track the language of the statute charged and state the time
and place (in approximate terms) of the alleged crime.” United States
v. Alfonso, 143 F.3d 772, 776 (2d Cir. 1998) (quoting United States v.
Stavroulakis, 952 F.2d 686, 693 (2d Cir. 1992)).

DISCUSSION

An explicit quid pro quo under McCormick need not be expressly
stated but may be inferred from the official’s and the payor’s words
and actions. The district court believed that McCormick and Evans set
out two different standards that apply in two different contexts. In
fact, Evans is an application and clarification of McCormick. Both cases
describe a single quid pro quo requirement that applies regardless of
whether the case involves purported campaign contributions. The
allegations of an illicit agreement in this case satisfy the quid pro quo
requirement described in those cases.

I

The indictment charged Benjamin with federal funds bribery
and honest services wire fraud. The federal funds bribery statute
makes it a crime when “an agent of an organization, or of a State, local,
or Indian tribal government, or any agency thereof,” “accepts or
agrees to accept[] anything of value from any person, intending to be
influenced or rewarded in connection with any business, transaction,
or series of transactions of such organization, government, or agency
involving any thing of value of $5,000 or more.” 18 U.S.C.
§ 666(a)(1)(B). The Supreme Court has emphasized that “[t]he
prohibition is not confined to a business or transaction which affects
federal funds.” Salinas v. United States, 522 U.S. 52, 57 (1997).

The honest services statute prohibits the use of the mail or the

9
wires to further “a scheme or artifice to deprive another of the
intangible right of honest services.” 18 U.S.C. § 1346; see 18 U.S.C.
§§ 1341, 1343. “[T]he honest-services statute,” the Supreme Court has
said, “covers only bribery and kickback schemes.” Skilling v. United
States, 561 U.S. 358, 368 (2010).

As the district court noted, these statutes “do not, on their face,
contain any requirement to show an explicit quid pro quo agreement.”
Benjamin, 2022 WL 17417038, at *13. But in McCormick and Evans, the
Supreme Court held that the government must prove a quid pro quo to
establish criminal liability under the Hobbs Act, which prohibits
extortion “under color of official right.” 18 U.S.C. § 1951(b)(2).
Relying on the Supreme Court’s reasoning, the district court held that
“an explicit quid pro quo is an ‘implicit element’ of each statutory
offense charged here.” Benjamin, 2022 WL 17417038, at *13.

The Supreme Court has explained, however, that the quid pro
quo requirement “is derived from the statutory language ‘under color
of official right,’ which has a well-recognized common-law heritage.”
Evans, 504 U.S. at 268 n.20; see also id. at 275 (Kennedy, J., concurring
in part and concurring in the judgment) (“I agree with the Court[] that
the quid pro quo requirement … is derived from the statutory
requirement that the official receive payment under color of official
right as well as the inducement requirement.”) (citation omitted). The
statutes at issue here lack the “under color of official right” language.
Nevertheless, both parties proceed on the assumption that the quid
pro quo requirement applicable to Hobbs Act extortion “under color
of official right” also applies to federal funds bribery and honest
services wire fraud. Other circuit courts have proceeded on the same

10
assumption. 2 We therefore assume without deciding that the charges
against Benjamin require proof of a quid pro quo.

II

The district court held that, pursuant to McCormick, an “explicit
quid pro quo” must be “clear and unambiguous” such that “(1) the link
between the official act and the payment or benefit—the pro—[is]
shown by something more than mere implication, and (2) there [is] a
contemporaneous mutual understanding that a specific quid and a
specific quo are conditioned upon each other.” Benjamin, 2022 WL
17417038, at *7, *12. While we agree that the quid pro quo must be clear
and unambiguous, there is no reason why it cannot be implied from
the official’s and the payor’s words and actions. In other words, “the
agreement must be explicit, but there is no requirement that it be
express.” Siegelman, 640 F.3d at 1171. An “explicit” agreement is one
that is plainly evident but not necessarily expressly stated:

The official and the payor need not state the quid pro quo
in express terms, for otherwise the law’s effect could be
frustrated by knowing winks and nods. The inducement
from the official is criminal if it is express or if it is

2 See United States v. Ring, 706 F.3d 460, 466 (D.C. Cir. 2013) (“[W]e assume

without deciding a proposition that [the defendant] appears to take for
granted: that McCormick, which concerned extortion, extends to honest-
services fraud.”); United States v. Siegelman, 640 F.3d 1159, 1171-74 (11th Cir.
2011) (assuming, “[w]ithout deciding,” that “a quid pro quo must be proved
in an honest services bribery prosecution” but concluding that “even if a
quid pro quo instruction was required, such an instruction was given” and
any error was harmless); see also United States v. Allen, 10 F.3d 405, 411 (7th
Cir. 1993) (“Given the minimal difference between extortion under color of
official right and bribery, it would seem that courts should exercise the
same restraint in interpreting bribery statutes as the McCormick Court did
in interpreting the Hobbs Act.”).

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 implied from his words and actions, so long as he intends
it to be so and the payor so interprets it.
Evans, 504 U.S. at 274 (Kennedy, J., concurring in part and concurring
in the judgment).

Every other circuit to have considered this question has held,
as we do today, that the McCormick explicit quid pro quo requirement
may be met by implication from the official’s and the payor’s words
and actions and need not entail an express statement. See United States
v. Correia, 55 F.4th 12, 31 (1st Cir. 2022) (holding that “it was well
within the jury’s province … to infer the existence of an explicit quid
pro quo” despite the lack of an express agreement); United States v.
Allinson, 27 F.4th 913, 925 (3d Cir. 2022) (agreeing with jury
instructions that “[t]he explicitness requirement does not require an
official’s specific statement that he will exchange official action for a
contribution, but rather requires that the quid pro quo be clear and
unambiguous, leaving no uncertainty about the terms of the
bargain”); United States v. Davis, 841 F. App’x 375, 379 (3d Cir. 2021)
(“Davis asserts that the words ‘express’ and ‘explicit’ mean the same
thing, but he is incorrect. … [A]n explicit arrangement need not be
‘memorialized in a writing’ or spoken aloud. … Thus, ‘direct and
circumstantial evidence,’ including the context of the arrangement,
may be used to prove that there was a ‘clear and unambiguous’
promise of official action in exchange for payment.”); United States v.
Blagojevich, 794 F.3d 729, 738 (7th Cir. 2015) (“‘Nudge, nudge, wink,
wink, you know what I mean’ can amount to extortion under the
Hobbs Act.”); United States v. Terry, 707 F.3d 607, 613 (6th Cir. 2013)
(“What is needed is an agreement, full stop, which can be formal or
informal, written or oral. As most bribery agreements will be oral and
informal, the question is one of inferences taken from what the
participants say, mean and do, all matters that juries are fully

12
equipped to assess.”); Siegelman, 640 F.3d at 1171 (“[T]here is no
requirement that this agreement be memorialized in a writing, or
even … be overheard by a third party. Since the agreement is for some
specific action or inaction, the agreement must be explicit, but there is
no requirement that it be express.”); United States v. Blandford, 33 F.3d
685, 696 (6th Cir. 1994) (“[B]y ‘explicit’ McCormick did not mean
‘express.’”); United States v. Carpenter, 961 F.2d 824, 827 (9th Cir. 1992)
(“The jury may consider both direct and circumstantial evidence,
including the context in which a conversation took place, to determine
if there was a meeting of the minds on a quid pro quo. As we read
McCormick, the explicitness requirement is satisfied so long as the
terms of the quid pro quo are clear and unambiguous.”); United States
v. Inzunza, 638 F.3d 1006, 1014 (9th Cir. 2011) (“An official may be
convicted without evidence equivalent to a statement such as: ‘Thank
you for the $10,000 campaign contribution. In return for it, I promise
to introduce your bill tomorrow.’ The connection between the explicit
promise of official action and the contribution must be proved, but
the proof may be circumstantial, under the test as it is stated in
McCormick and elaborated in Carpenter.”); United States v. Tomblin, 46
F.3d 1369, 1381 (5th Cir. 1995) (“The explicitness requirement is
satisfied … so long as the terms of the quid pro quo are clear and
unambiguous.”) (alteration omitted) (quoting Carpenter, 961 F.2d at
827).

III

The district court reached a contrary conclusion based on a
misunderstanding of the relationship between McCormick and Evans,
which apply the same rather than different standards for establishing
a quid pro quo, and in reliance on dicta from two of our prior cases.

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 A

In Evans, the Supreme Court applied the quid pro quo
requirement first articulated in McCormick. Accordingly, Evans is an
elaboration of McCormick rather than a separate test.

In McCormick, a member of the West Virginia House of
Delegates—who was seeking re-election—received cash payments
from a lobbying group that he did not report as campaign
contributions. See McCormick, 500 U.S. at 260. After winning
re-election, McCormick sponsored legislation that benefited the
lobbying group. The legislation passed, and the group gave
McCormick another cash payment. McCormick was convicted of
extorting payments under color of official right in violation of the
Hobbs Act. See id. at 261.

The Supreme Court considered whether, in addition to
showing that the payments were not intended as legitimate campaign
contributions, the prosecution also needed to establish a quid pro quo
between McCormick and the lobbyists. The Supreme Court held that
the prosecution did need to make that showing, and the Court
vacated McCormick’s conviction because the jury had not been so
instructed. In reaching that conclusion, the Court offered the
following observation:

Money is constantly being solicited on behalf of
candidates, who run on platforms and who claim
support on the basis of their views and what they intend
to do or have done. Whatever ethical considerations and
appearances may indicate, to hold that legislators
commit the federal crime of extortion when they act for
the benefit of constituents or support legislation
furthering the interests of some of their constituents,
shortly before or after campaign contributions are

14
 solicited and received from those beneficiaries, is an
unrealistic assessment of what Congress could have
meant by making it a crime to obtain property from
another, with his consent, “under color of official right.”
Id. at 272. The Court held that a payment that could have been a
campaign contribution violates the Hobbs Act only if the payment
was either “induced by the use of force, violence, or fear” or “made
in return for an explicit promise or undertaking by the official to
perform or not to perform an official act.” Id. at 273. The Court
emphasized that, because “McCormick’s sole contention in this case
is that the payments made to him were campaign contributions,” the
Court did “not decide whether a quid pro quo requirement exists in
other contexts, such as when an elected official receives gifts, meals,
travel expenses, or other items of value.” Id. at 274 n.10.

One year later in Evans, the Court considered whether an
affirmative act of inducement by the official was an element of
extortion under color of official right under the Hobbs Act. John
Evans, a member of the Board of Commissioners of Dekalb County in
Georgia, received $7,000 in cash and $1,000 in campaign contributions
from an undercover FBI agent. See Evans, 504 U.S. at 257. At Evans’s
trial, the district court instructed the jury that “if a public official
demands or accepts money in exchange for a specific requested
exercise of his or her official power, such a demand or acceptance does
constitute a violation of the Hobbs Act regardless of whether the
payment is made in the form of a campaign contribution.” Id. at 258
(alteration omitted) (emphasis added).

On appeal, Evans argued that the jury instructions did not
“properly describe the quid pro quo requirement for conviction”
because the jury heard that it could convict based on Evans’s passive
acceptance of contributions. Id. at 268. The Supreme Court rejected

15
the “criticism of the instruction” and concluded that the instruction
“satisfies the quid pro quo requirement of McCormick v. United States
because the offense is completed at the time when the public official
receives a payment in return for his agreement to perform specific
official acts; fulfillment of the quid pro quo is not an element of the
offense.” Id. (citation omitted). The Court explained that while Evans
“did not initiate the transaction, his acceptance of the bribe
constituted an implicit promise to use his official position to serve the
interests of the bribegiver,” establishing the quid pro quo. Id. at 257
(emphasis added). As Justice Kennedy elaborated in his concurrence,
to satisfy the McCormick quid pro quo requirement, “[t]he official and
the payor need not state the quid pro quo in express terms, for
otherwise the law’s effect could be frustrated by knowing winks and
nods.” Id. at 274 (Kennedy, J., concurring in part and concurring in
the judgment). Instead, “[t]he inducement from the official is criminal
if it is express or if it is implied from his words and actions, so long as he
intends it to be so and the payor so interprets it.” Id. (emphasis
added).

Nothing in the Court’s opinion suggests that Evans altered the
McCormick standard; Evans applied that standard. In applying the
quid pro quo requirement of McCormick, Evans clarified the
requirement in three ways. First, Evans clarified that an explicit quid
pro quo does not need to be expressly stated or memorialized and may
be inferred from words and actions. Some courts, suggesting that
McCormick’s requirement of an “explicit” quid pro quo cannot
encompass the implicit promise described in Evans, have sought to
distinguish the cases. But McCormick and Evans do not conflict. The
agreement constituting the quid pro quo must be “explicit” in the sense
that it must be clear that the official “obtained a payment … knowing
that the payment was made in return for official acts.” Evans, 504 U.S.

16
at 286. However, the jury may infer such an agreement based on
evidence of the official’s “implicit promise to use his official position
to serve the interests of the bribegiver.” Id. at 257. Because “the
agreement is for some specific action or inaction, the agreement must
be explicit, but there is no requirement that it be express.” Siegelman,
640 F.3d at 1171.

Second, Evans clarified that a quid pro quo may exist even if the
official took no affirmative steps to induce the bribe—by, for example,
making a threat—but simply accepted the bribe with the knowledge
that it was intended as consideration for his official acts. See Evans,
504 U.S. at 266-68. Third, because Evans involved both campaign
contributions and personal payments to the official, Evans clarified
that McCormick’s explicit quid pro quo requirement applies to non-
campaign-contribution payments. Indeed, the Court approved the
jury instruction that “if a public official demands or accepts money in
exchange for a specific requested exercise of his or her official power,
such a demand or acceptance does constitute a violation of the Hobbs
Act regardless of whether the payment is made in the form of a campaign
contribution.” Id. (alteration omitted) (emphasis added).

McCormick and Evans both apply to cases involving an illicit
payment to a public official, even if the payment is given as a
campaign contribution. The showing of a quid pro quo, assuming it is
required, may be based on inference and need not involve an express
statement.

B

In reaching this conclusion about the relationship between
McCormick and Evans, we agree with most other circuits to have
considered the question. The Third, Fourth, Fifth, Seventh, and
Eleventh Circuits have all held that Evans applies to cases involving

17
campaign contributions. See Allinson, 27 F.4th at 925 (explaining, in a
campaign contribution case, that “bribery can occur through
‘knowing winks and nods’” and still qualify as “an explicit quid pro
quo”) (quoting Evans, 504 U.S. at 274 (Kennedy, J., concurring in part
and concurring in the judgment)); Siegelman, 640 F.3d at 1171
(explaining that “McCormick does not impose such a stringent
standard” as to require “only express words of promise” as Evans
clarified); United States v. Whitfield, 590 F.3d 325, 349 (5th Cir. 2009)
(“In McCormick, the Supreme Court held that a conviction under the
Hobbs Act for extortion under color of official right requires a
showing of an explicit quid pro quo when the alleged illegal payments
take the form of campaign contributions. … In Evans v. United States,
the Supreme Court clarified that no overt act is required on the part
of the official.”); United States v. Giles, 246 F.3d 966, 972 (7th Cir. 2001)
(concluding that Evans clarified that “the quid pro quo requirement
applies in all extortion prosecutions under the Hobbs Act” and that
“the government need not show an explicit agreement, but only that
the payment was made in return for official acts”); Tomblin, 46 F.3d at
1379 (explaining that “[u]nder the bribery statutes, the government
must prove a quid pro quo, that is, that the official took money in
return for an exercise of his official power” and citing both McCormick
and Evans); United States v. Taylor, 993 F.2d 382, 385 (4th Cir. 1993)
(“Any payment to a public official, whether it be a legitimate
campaign contribution or a bribe, is made because of the public office
he holds. Evans makes clear that the public official must obtain ‘a
payment to which he was not entitled, knowing that the payment was
made in return for official acts.’”); United States v. Martinez, 14 F.3d 543,
553 (11th Cir. 1994) (“We construe this language from Evans as
adopting the quid pro quo requirement of McCormick.”).

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 The Sixth and Ninth Circuits have suggested in dicta that an
alternative reading of McCormick and Evans might be appropriate, 3
but in more recent cases involving campaign contributions, both
circuits have treated Evans as an application of McCormick. See Terry,
707 F.3d at 613 (applying McCormick and Evans in a campaign
contribution case); Inzunza, 638 F.3d at 1020 (same). 4 We agree with
the majority view.

3 The Sixth Circuit has offered contradictory interpretations. Compare
Blandford, 33 F.3d at 696 (“Our reading of Evans—as limited to the campaign
contribution context—is bolstered by the fact that the case, after all,
involved campaign contributions.”), with United States v. Abbey, 560 F.3d
513, 517-18 (6th Cir. 2009) (“Evans modified the standard in non-campaign
contribution cases by requiring that the government show only that the
official obtained a payment to which he was not entitled, knowing that the
payment was made in return for official acts.”) (internal quotation marks
and alteration omitted). The Ninth Circuit has indicated that Evans might
be limited to the non-campaign-contribution context, the opposite of the
Sixth Circuit’s suggestion in Blandford. See United States v. Kincaid-Chauncey,
556 F.3d 923, 937 (9th Cir. 2009) (“[T]o convict a public official of Hobbs Act
extortion for receipt of property other than campaign contributions, ‘[t]he
official and the payor need not state the quid pro quo in express terms, for
otherwise the law’s effect could be frustrated by knowing winks and
nods.’”) (quoting Evans, 504 U.S. at 274 (Kennedy, J., concurring in part and
concurring in the judgment)).
4 Some statements from the First and Eighth Circuits also suggest an
alternative view. See United States v. Chastain, 979 F.3d 586, 591 (8th Cir.
2020) (“Outside of the campaign contribution context, an explicit quid pro
quo is not required.”); United States v. McDonough, 727 F.3d 143, 155 n.4 (1st
Cir. 2013) (declining “to follow McCormick v. United States” because “we
have held that McCormick applies only in the context of campaign
contributions”).

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 C

In Hobbs Act extortion cases, we have suggested in dicta that
McCormick’s requirement of an explicit quid pro quo is limited to
campaign contribution cases and that Evans allows an implicit quid
pro quo to establish guilt only in non-campaign-contribution cases. See
Ganim, 510 F.3d at 143 (“Evans modified this standard in non-
campaign contribution cases by requiring that the government show
only that a public official has obtained a payment to which he was not
entitled, knowing that the payment was made in return for official
acts.”) (internal quotation marks omitted) (quoting Garcia, 992 F.2d at
414). 5 The implication of these dicta is that, when campaign
contributions are involved, the requirement to show an “explicit” quid
pro quo means that the agreement must be expressly stated. However,
we have never made such a statement in a case that involved
campaign contributions. To the extent that a statement in an opinion
“referred not just to circumstances similar to those presented by the
facts before it, but also to potential circumstances that were not before
it, the panel was of course offering dicta.” Ming Shi Xue v. BIA, 439
F.3d 111, 121 (2d Cir. 2006) (internal quotation marks omitted); see also
Carroll v. Carroll’s Lessee, 57 U.S. 275, 286-87 (1853) (“[I]f [an issue]
might have been decided either way without affecting any right
brought into question, then, according to the principles of the
common law, an opinion on such a question is not a decision. To make
it so, there must have been an application of the judicial mind to the
precise question necessary to be determined to fix the rights of the
parties.”); Xiao Ji Chen v. DOJ, 471 F.3d 315, 338 (2d Cir. 2006)

5 See also United States v. Silver, 948 F.3d 538, 548 (2d Cir. 2020) (quoting

Garcia, 992 F.2d at 414); United States v. Rosen, 716 F.3d 691, 701 (2d Cir. 2013)
(citing Ganim, 510 F.3d at 148).

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(“Holdings—what is necessary to a decision—are binding. Dicta—no
matter how strong or how characterized—are not.”) (quoting United
States v. Garcia, 413 F.3d 201, 232 n.2 (2d Cir. 2005) (Calabresi, J.,
concurring)).

Because we now consider the issue in the context of a campaign
contribution case, we conclude that Evans applies to such cases.

We recognize that campaign contributions implicate the First
Amendment, which “requires us to err on the side of protecting
political speech rather than suppressing it.” McCutcheon, 572 U.S. at
209 (quoting FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 457 (2007)
(opinion of Roberts, C.J.)). “[C]ampaigns must be run and financed,”
and a public official may permissibly “act for the benefit of
constituents or support legislation furthering the interests of some of
their constituents, shortly before or after campaign contributions are
solicited and received from those beneficiaries.” McCormick, 500 U.S.
at 272. But “[i]t is the corrupt agreement that transforms the exchange
from a First Amendment protected campaign contribution … into an
unprotected crime.” Siegelman, 640 F.3d at 1173 n.21. If “Congress
may permissibly seek to rein in ‘large contributions [that] are given to
secure a political quid pro quo from current and potential office
holders,’” McCutcheon, 572 U.S. at 207 (quoting Buckley v. Valeo, 424
U.S. 1, 26 (1976)), it certainly may prohibit the quid pro quo itself. The
quid pro quo requirement, as elaborated above, alleviates the First
Amendment concern.

IV

Having clarified the scope of the quid pro quo requirement, we
conclude that the district court erred in dismissing the indictment for
failure to state a claim.

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 A

The indictment alleged a quid pro quo in paragraphs 1 and 40.
Paragraph 1 alleged as follows:

From at least in or about 2019, up to and including at
least in or about 2021, Brian Benjamin, the defendant,
participated in a scheme to obtain campaign
contributions from a real estate developer [Migdol] in
exchange for Benjamin’s agreement to use, and actual use
of, his official authority and influence as a New York
State senator to obtain a $50,000 grant of state funds [for
Organization-1].
App’x 1 (emphasis added). And Paragraph 40 alleged that “Benjamin
solicited and received campaign contributions from [Migdol] in
exchange for Benjamin’s agreement to use, and actual use of, his official
authority and influence to obtain the State Grant for Organization-1.”
Id. at 19 (emphasis added).

This language sufficiently alleged an explicit quid pro quo. We
agree with the government that the phrase “in exchange for” in both
paragraphs satisfied the quid pro quo requirement of McCormick
because it alleged an unambiguous agreement to exchange an official
public act by Benjamin for financial contributions from Migdol. The
fact that the agreement was never stated expressly is immaterial
because the existence of the agreement, and the clarity of its terms to
Migdol and Benjamin, could be inferred from their words and actions.
In fact, the language of the indictment parallels the jury instruction
that the Supreme Court upheld in Evans. See 504 U.S. at 258 (“[I]f a
public official demands or accepts money in exchange for a specific
requested exercise of his or her official power, such a demand or
acceptance does constitute a violation of the Hobbs Act regardless of
whether the payment is made in the form of a campaign

22
contribution.”) (alteration omitted) (emphasis added). The district
court therefore erred when it held that the indictment failed to allege
an explicit quid pro quo.

B

The district court also erred insofar as it held that the
indictment failed to allege a crime because it failed to establish that
contributions followed the promise to perform an official act. Under
McCormick and Evans, “a quid pro quo with the attendant corrupt
motive can be inferred from an ongoing course of conduct.” Evans, 504
U.S. at 274 (Kennedy, J., concurring in part and concurring in the
judgment) (emphasis added). “[T]he Government need only show
that a public official has obtained a payment to which he was not
entitled, knowing that the payment was made in return for official
acts.” Id. at 268 (majority opinion).

The course of conduct alleged in the indictment described a
corrupt quid pro quo that satisfies McCormick and Evans. At the
conclusion of the March 2019 meeting, Benjamin asked for Migdol’s
assistance in collecting small-dollar campaign contributions. Migdol
said he would be unable to do so because such contributions would
displace donations to his non-profit. Benjamin said “Let me see what
I can do,” 6 and afterward he informed Migdol that he would allocate
a state grant to the non-profit. These facts allow the inference that
Benjamin promised to perform an official act in exchange for
monetary payments. Following that promise, Benjamin allegedly
accepted money from Migdol knowing that it was offered in return

6 Cf. McCormick, 500 U.S. at 260 (“Vandergrift told McCormick that he
would contact the doctors and see what he could do.”); Garcia, 992 F.2d at
412 (“Moreno informed the Congressman that ‘my financial situation was
not that good at that time, but that I was going to see what I could do.’”).

23
for his decision to allocate the state grant. The fact that the grant had
not yet been disbursed when Benjamin accepted the money—because
state agencies still needed to approve the disbursement—does not
indicate a lack of an agreement between Benjamin and Migdol.
“[F]ulfillment of the quid pro quo” through actual disbursement of the
grant “is not an element of the offense.” Id.; see also Ganim, 510 F.3d at
142-43.

C

We agree with the district court that “principles of due process
require ‘fair warning … in language that the common world will
understand’ as to what conduct is prohibited by law.” Benjamin, 2022
WL 17417038, at *13 (quoting McBoyle v. United States, 283 U.S. 25, 27
(1931)). But the applicable statutes, as well as McCormick and Evans,
provided sufficient notice that the alleged exchange in this case was
prohibited. Benjamin had fair warning that his alleged agreement
with Migdol was illegal and that it would not become legal if he
simply avoided memorializing it expressly in words or in writing.

CONCLUSION

We reverse the judgment of the district court dismissing
Counts One, Two, and Three of the indictment and remand for further
proceedings consistent with this opinion.

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