May 16, 2016
Government Investigations & White Collar Defense
Author(s): Brian T. Kelly
In a case that challenged a common perception of extortion—that it necessarily involves a victim—the Supreme Court recently held that a public official can be convicted of conspiring to commit extortion under the Hobbs Act (18 U.S.C. § 1951) even when his co-conspirators are the ones willingly furnishing the money or property. The Court’s 5–3 ruling in Ocasio v. United States, No. 14-361 (May 2, 2016), confirms that extortion under color of official right can take place even when all parties to the extortion are corrupt and the scheme is mutually beneficial.
The Court’s ruling in Ocasio preserves the government’s ability to use the Hobbs Act to prosecute state and local bribery schemes. The conflation of bribery and extortion dates back to 1992, when the Supreme Court decided Evans v. United States, 504 U.S. 255 (1992). In Evans, the Court held that extortion under color of official right is tantamount to bribery. Because the federal bribery statute (18 U.S.C. § 201) does not reach state or local officials, the Hobbs Act became the federal government’s primary means of prosecuting state and local bribery.
Ocasio is one such case. Samuel Ocasio, a Baltimore police officer, was part of a widespread kickback scheme whereby officers would steer drivers involved in car accidents to a particular auto body shop for repairs. The owners of the body shop, Majestic, would pay Ocasio and other officers a sum of money for each car referred to their shop. The government ultimately indicted Ocasio, other officers, and the owners of Majestic and charged them with conspiring to violate the Hobbs Act, among other offenses. Ocasio was convicted of the conspiracy count and of other extortion counts.
On appeal, Ocasio argued that his conspiracy conviction could not stand because the money he obtained came from the owners of Majestic—i.e., his co-conspirators. For a Hobbs Act conspiracy to have occurred, Ocasio argued, the players had to have conspired to obtain property from someone who was not a member of the conspiracy. Otherwise, under the government’s awkward charging, the owners of the body shop had been part of a conspiracy to extort money from themselves. Ocasio argued that the definition of extortion in the Hobbs Act, which criminalizes a public official’s taking of property “from another,” prohibited this. “From another,” he argued, could not mean a co-conspirator.
The Court rejected Ocasio’s argument. Recalling fundamental principles of conspiracy law, the Court noted that all of the conspirators had a shared intent: that some member of the conspiracy would commit the underlying crime (extortion). This common criminal objective, the Court said, sustained the conspiracy conviction, even if certain members of the conspiracy (the body shop owners) were incapable of ultimately committing the underlying crime.
Commentary in the majority opinion and in Justice Breyer’s concurring opinion, and in dissents by Justice Thomas and Justice Sotomayor (the latter joined by Chief Justice Roberts), suggests that Ocasio will not be the Court’s last word on Hobbs Act extortion. Some members of the Court appear to lack confidence in the Evans holding; others dispute the Court’s interpretation of “for another” in the statute. For now, the government retains the ability to prosecute bribery-like behavior under this extortion statute, but many questions about Hobbs Act extortion remain, and are likely to find their way to the Court again.
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