SCOTUS Takes Expansive View of Conspiracy, Extortion

Bloomberg Law’s combination of innovative analytics, research tools and practical guidance provides you with everything you need to be a successful litigator.

By Kimberly Strawbridge Robinson

May 2 — Conspirators don't have to plot to take money from someone outside of the conspiracy to be guilty of conspiracy to commit extortion, the U.S. Supreme Court said May 2.

“Age-old principles of conspiracy law” show that conspirators don't have to be capable of committing the underlying offense—here, taking property “from another” under color of official right in violation of the Hobbs Act, 18 U.S.C. §1951—Justice Samuel A. Alito Jr. wrote for the 5-3 majority.

It's enough that “the conspirators agreed that the underlying crime be committed by a member of the conspiracy who was capable of committing it,” the court said.

Accordingly, the court upheld the conspiracy conviction of a former Baltimore cop who agreed to refer accident victims to a particular car repair shop in exchange for kickbacks.

But the dissenting justices said such a broad interpretation of the conspiracy statute, 18 U.S.C. §371, risks victimizing innocent parties.

“Today the Court holds that an extortionist can conspire to commit extortion with the person whom he is extorting,” Justice Clarence Thomas said in his dissenting opinion.

The court's broad interpretation of conspiracy, as well as the Hobbs Act, could fuel “an even more aggressive push for substantive criminal law reform at the federal level,” J. Richard Broughton, a professor at University of Detroit Mercy School of Law, Detroit, who blogs about criminal justice, told Bloomberg BNA May 2.

Fueling Reform?

“The criminal justice reform movement is not just about drug sentencing, or even just about sentencing generally,” Broughton, who worked in the Criminal Division of the Justice Department, said.

It's “also about the scope of federal criminal law and federal prosecutorial power,” he said.

Although the Supreme Court “has been far more effective at limiting the scope of federal criminal law than Congress has in recent years, Ocasio is a reminder that the Hobbs Act is among those federal statutes that have contributed to many of the concerns that animate those who seek criminal justice reform,” Broughton said.

Overlap With McDonnell

In this way, Ocasio overlaps with another conspiracy case pending before the high court—McDonnell v. United States, U.S., No. 15-474, argued 4/27/16, Broughton said.

There, the justices seemed primed to overturn the 2014 corruption conviction of former Virginia Governor Bob McDonnell .

Broughton notes that during the McDonnell argument, the justices seemed “to have serious concerns about the scope of prosecutorial power that the Government's theory of the case would permit.”

“But after Ocasio, if Governor McDonnell is to prevail, the Court will have to be persuaded that the Government's theory of the case in McDonnell goes intolerably farther than its theory of the case in Ocasio,” Broughton said.

If the government prevails in both cases, “conservatives on Capitol Hill have even greater incentive to make criminal law reform a priority,” he said.

Conflicts With Federalism?

Thomas's dissenting opinion is a good example of this, Broughton said.

“The Court’s decision is unfortunate because it expands federal criminal liability in a way that conflicts with principles of federalism,” Thomas said.

He said the court started on that path in Evans v. United States, 504 U.S. 255 (1992), which equated extortion under the Hobbs Act with run-of-the-mill bribery.

“Only by blurring the distinction between bribery and extortion could Evans make it seem plausible that an extortionist and a victim can conspire to extort the victim,” Thomas said.

But by criminalizing conduct that's already prohibited by state law, the court “further wrenches from States the presumptive control that they should have over their own officials' wrongdoing,” he said.

Justice Sonia Sotomayor agreed. The majority encourages federal prosecutors to charge everybody with conspiracy and see “what sticks and who flips,” Sotomayor's dissent, joined by Chief Justice John G. Roberts Jr., said.

Required by Evans

But the majority said the broad interpretation was necessitated by Evans.

“We are not unmindful of the federalism concerns implicated by this case, but those same concerns were raised—and rejected—in Evans,” the court said.

Because the petitioner didn't ask the court to overturn Evans, it must accept it as good law, the court said.

The justices' frustration with Evans could be one reason the opinion took so long to hand down.

The case was one of the first arguments of the 2015 term, and was the longest outstanding case when it was released. It was argued Oct. 6, 2015.

Even though Alito, Thomas and Justice Stephen G. Breyer suggested that Evans is troublesome, if not wrongly decided, it may be that there were not enough votes to overrule Evans after Justice Antonin Scalia—who dissented in Evans—passed away unexpectedly in February.

However, Broughton suggested that the delay could have something to do with the McDonnell case. “I wonder if Ocasio took so long, in part, because the Court wanted to at least hear McDonnell before it released anything on Ocasio,” he said.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at

For More Information

Full text at

Request Litigation on Bloomberg Law