When Extortion Equals Bribery, Can Victims Be Villains?

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By Tom Taylor

Oct. 5 — Stretching the federal law against extortion to cover what most view as run-of-the-mill bribery caused problems during a conspiracy case argued at the U.S. Supreme Court Oct. 6 (Ocasio v. United States, U.S., No. 14-361, argued 10/6/15).

The case involves a former Baltimore police officer convicted of federal Hobbs Act extortion—and conspiring to commitextortion under the general conspiracy statute—for his participation in a scheme to send drivers involved in car accidents to a particular repair shop in exchange for a fee.

The problem was, according to the officer, that the conspiracy charge was based on the involvement not of any true co-conspirators, but the alleged victims of the extortion—the brothers who owned the repair shop.

As defendant Samuel Ocasio explained it in his brief, the government's theory was that he “conspired with the people who paid him to obtain property from the people who paid him.”

But several members of the court—Justices Antonin Scalia and Stephen G. Breyer in particular—seemed to imply that the court had helped to create the confusion when it extended the reach of the Hobbs Act into crimes resembling briberyin the 1992 case of Evans v. United States, 504 U.S. 255. Notably, Scalia joined Justice Clarence Thomas's dissent in that opinion.

Failed to Ask

And although some enmity toward Evans showed throughout the hearing, the decision's future didn't really seem in doubt.

For one thing, Ocasio didn't ask the court to overrule or reexamine the holding in Evans.

In fact, he didn't even challenge his conviction for “color of official right” extortion under the Hobbs Act—“obtaining of property from another … under color of official right.” He only challenged the conspiracy conviction.

“Is it well established, or even not well established, that you are obtaining property under color of law when you give somebody a bribe,” Scalia asked Ethan P. Davis of King & Spalding LLP, San Francisco, who represented Ocasio—making a clear reference to Evans.

Davis said that “until 1992, I think that was an open question,” but Evans changed the game, establishing that “Hobbs Act extortion encompasses the paying of bribes.”

“I dissented, I assume,” Scalia quipped.

Breyer laid it out even more clearly. “If bribery is extortion, then why isn't conspiracy to commit bribery conspiracy to commit extortion? We're back where we began,” Breyer said.

“The odd thing is calling bribery extortion,” he said.

And although Thomas was characteristically silent during the argument, his feelings about Evans can be discerned from his dissent.

“By stretching the bounds of extortion to make it encompass bribery, the Court today blurs the traditional distinctionbetween the crimes,” Thomas wrote.

Additionally, you could see Thomas chuckle during one of Breyer's questions about the logical line between extortion andbribery.

But aversion to prior precedent isn't always enough to overcome stare decisis, as Thomas's opinion last term in Bank of Am. N.A. v. Caulkett, 2015 BL 171240 (U.S. June 1, 2015), showed.

Thomas's opinion in Caulkett featured a footnote cataloguing the criticism of the controlling precedent, Dewsnup v. Timm—coincidently, another case from 1992—but ultimately declined to overrule it, noting that nobody asked the court to go that far.

Textual Argument

So with questions about the soundness of Evans swirling in the background, the parties traded blows, each trying to wield the text of the statute to his advantage.

Davis led off with the argument that the phrase “from another”—as in, “obtaining of property from another”—in the Hobbs Act means that the target of a conspiracy to extort money must be outside of the circle of conspirators.

“The plain language of the Hobbs Act resolves this case. When two people agree that one will pay the other a bribe, they have merely agreed to exchange property between themselves, not to obtain property from another,” Davis said.

But Justice Elena Kagan didn't see it that way.

Almost from the very beginning, Kagan led the charge to illustrate how the case fit within the boundaries of traditional conspiracy law.

“Mr. Ocasio is committing every element of the substantive offense,” she said. “He is obtaining property from another. That is, he's obtaining property from the body shop owners,” Kagan said.

“And the body shop owners agreed that he would do so. So it seems to me that in the normal way that conspiracy law works, there is a conspiracy here,” she said.

In the end, nobody had a strong response to this logic. Justice Samuel A. Alito Jr. even implied that Ocasio was advocating for a special exception to hornbook conspiracy law, one made just for the Hobbs Act.

“Is it fair to say that you are advancing an argument that is limited to the precise language of the Hobbs Act?” Alito asked Davis. “You are not taking issue with the proposition that a person can conspire to commit an offense that the person could not personally commit.”

“So is it fair to say that what you want is a special conspiracy rule that applies only in cases of Hobbs Act conspiracies?” Alito wondered.

‘Active Participation'

Seeing how Kagan's logic hit the mark with most of the court, Assistant to the Solicitor General Allon Kedem picked it up and adopted it whole-heartedly as soon as he began his argument.

But problems arose when Kedem was asked how the government would address the fact that anyone who offered a bribe to a government official would seem to be guilty of conspiracy to commit extortion as well.

“Do you agree that under your approach, every private individual who seeks to bribe a state official is liable for conspiracy to commit Hobbs Act extortion?” Justice Anthony M. Kennedy asked.

Kedem responded that the U.S. Court of Appeals for the Fourth Circuit got it right in the ruling below when it required “active participation” in the conspiracy—that is, doing something more than just handing over money in return for official acts.

When asked how you charge “active participation” to a jury, Kedem said, “you would have to tell the jury that if all you've agreed to do is to turn over money in return for official acts, then that by itself is insufficient.”

But Scalia wasn't sure where the active participation standard came from.

“I mean, there is just as much of an agreement between the two people to obtain money from another, whether that other actively participates or not,” he said. “Where do you get this active participation requirement from?”

Kagan agreed. “I guess I'm with Justice Scalia that I don't quite really understand how to get from the typical real agreement that we require in conspiracy cases to some higher standard with respect to this crime of active participation.”

And Breyer—once again—put it into even starker terms.

Any policeman, state official or anyone who asks for money in a situation related to their job is already guilty of extortion, Breyer explained.

“So now what you're going to do is you're going to make not only them guilty of the federal crime,” you're “going to make anybody who pays them guilty of the federal crime. That's the purpose of this case,” he said.

What the active participation standard is designed to do, Breyer said, is “separate the sort-of-innocent victims” who just pay the money, from those that want to pay the money—like the body shop owners in this case.

Essentially, active participation helps you counter the argument from the petitioner that we are federalizing “vast numbers of state crimes, which really are the state's business,” Breyer said.

That characterization didn't come across as a ringing endorsement of the government's position.

In the end, it looked like the government's view of Hobbs Act conspiracy would hold up. But, especially in light of the court's recent decisions addressing prosecutorial overreaching and issues of federalism, the court's opinion (or opinions) will likely raise serious questions about how the government will wield its authority.

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