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SCOTUS: Extortionist can conspire to commit extortion with person whom he is extorting

Ocasio v. United States, USSC No. 14-361, (May 2, 2016), affirming United States v. Ocasio, 750 F.3d 399, (4th Cir. 2014); SCOTUSblog page (includes links to briefs and commentary)

That post title is Justice Thomas’s view of the majority’s decision in this case, and he is not the lone dissenter. The Hobbs Act makes it a crime to obstruct, delay or affect commerce by extortion. It defines extortion as the obtaining of property from another with his consent, induced by wrongful use of force, violence or fear, or under color of official right. 18 U.S.C. §1951(b)(2). In a split decision with an odd alignment of justices, the majority holds that “a group of conspirators can agree to obtain property ‘from another’ in violation of the [Hobbs] Act even if they agree only to transfer property among themselves.”  (Slip op. Sotomayor, J. dissenting at 1).

Ocasio and other Baltimore police officers had a good thing going. When they reported to the scene of a car accident, they persuaded the owners of the damaged cars to have the cars towed to the Majestic Auto Repair shop, which then gave the officers a kickback for the referral.  Ocasio argued that the Hobbes Act conspiracy requires proof that the alleged conspirators agreed to obtain money or property from someone who was not a member of the conspiracy. The majority (written by Alito and joined by Kennedy, Ginsburg, Breyer and Kagan) disagreed:

[B]asic principles of conspiracy law resolve this case. In order to establish the existence of a conspiracy to violate the Hobbs Act, the Government has no obligation to demonstrate that each conspirator agreed personally to commit—or was even capable of committing—the substantive offense of Hobbs Act extortion. It is sufficient to prove that the conspirators agreed that the underlying crime be committed by a member of the conspiracy who was capable of committing it. In other words, each conspirator must have specifically intended that some conspirator commit each element of the substantive offense.

Evans v. United States, 504 U.S. 255, 260 (1992) held that taking property from another with his consent under the color of official right is the “rough equivalent of what we now describe as ‘taking a bribe.'” To prove bribery, the government only has to show that a public official obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts. Justice Breyer’s concurrence noted that Evans may have been wrongly decided but SCOTUS was still bound by it. Justice Thomas’s dissent argued that SCOTUS “started down the wrong path in Evans, which wrongly equated extortion with bribery. In so holding, Evans made it seem plausible that an extortionist could conspire with his victim.” He would not extend Evans any further.  Indeed, Justice Thomas worries:

Today the Court again broadens the Hobbs Act’s reach to enable federal prosecutors to punish for conspiracy all participants in a public-official bribery scheme. The invasion of state sovereign functions is again substantial. The Federal Government can now more expansively charge state and local officials. And it can now more easily obtain pleas or convictions from these officials: Because the Government can prosecute bribe-payors with sweeping conspiracy charges, it will be easier to induce those payors to plead out and testify against state and local officials. The Court thus further wrenches from States the presumptive control that they should have over their own officials’ wrongdoing. (Slip op. Thomas, J. dissenting at 5).

Sotomayor (joined by Roberts) dissented because the majority’s view of “from another” was neither natural nor logical and broadened the reach of conspiracy prosecutions:

When three people agree to obtain property “from another,” the everyday understanding of their agreement is that they intend to obtain property from someone outside of their conspiracy. The Court reaches the opposite conclusion, based entirely on an assumption that the Hobbs Act’s use of “from another” takes as its reference point the vantage of Ocasio alone, rather than the group endeavor that constitutes conspiracy. The Court offers no explanation–grounded in either the text of the statute or so-called “age-old principles of conspiracy law”–for why that assumption is correct.

Conspiracy has long been criticized as vague and elastic, fitting whatever a prosecutor needs in a given case. See, e.g., Krulewitch v. United States, 336 U. S. 440, 445–457 (1949) (Jackson, J., concurring). This Court has warned that “we will view with disfavor attempts to broaden the already pervasive and wide-sweeping nets of conspiracy prosecutions.” Grunewald v. United States, 353 U. S. 391, 404 (1957). Today, in reaching an unnatural outcome predicated on an unsupported assumption, the Court says never mind. (Slip op. Sotomayor, J dissenting at 11).

See SCOTUSblog’s thorough analysis of this opinion here. 

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