Finger Painting with the Hobbs Act: Making Extortion Victims Co-Conspirators
May 10, 2016 (Mimesis Law) — If you’re a parent, then you’ve probably experienced that moment when your preschooler proudly handed you a recently completed art project. Or maybe the kid just cut out the middle man and independently posted this freshly painted Mona Lisa on the fridge. You look it over trying to figure out what the picture is supposed to be. Is that a plane with an arm or is it a hand grabbing a hot dog?
So you ask your budding little Jackson Pollock what the picture shows, and you are told that it is actually a picture of you. You can’t see it, but the kid shares at least half your genes, so after a hug and kiss, you send the kid on his way. You stare longer at the picture, but you still cannot see it. The law, like finger painting, can be messy. And sometimes when a layperson looks at the finished product, it looks as inscrutable as preschooler artwork.
The recent Supreme Court case Ocasio v. United States is one of those messy cases. But it’s not the facts that are messy; those are pretty straight forward, along with the underlying motive. Several police officers worked out a deal with a particular body shop to steer people involved in accidents to that business.
In return for being helpful, the body shop would give the officers a referral fee. There was no evidence that the motorists were coerced by the police, nor does it appear that the officers would refuse to aid the motorist if they wanted to have their vehicle taken elsewhere. Where it starts to get messy is the question of the moral culpability of the officers and the law involved.
This scheme was basically the street equivalent of those pop-up ads saying, “You’re on the internet anyway, why not get paid for it?” The struggling body shop found a clever way to increase their sales; the motorists quickly found a place to send their cars; and the officers were there to help the motorist and clear the road. On the surface, it seems like everyone got what they wanted and no one suffered any loss.[i]
But that’s not the way the feds saw this little scheme. In the eyes of the federal prosecutors, this was extortion. You probably did not see the extortion charge coming and, on further reflection, neither did you realize that this would be a federal case. This is like the robot and alien that your kid added to the family photo—where did all that come from? Except here that robot sends you to jail.
This became a federal case though our old friend, the Hobbs Act. As you may recall, the Hobbs Act gave rise to federal prosecution for attempted robbery of marijuana and the Virginia Governor making appointments and sending emails.
In the Oscanio case, the federal prosecutors saw this as extortion because of how that term was defined by the statute: “The term “extortion” means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.”
But, you may say to yourself, there wasn’t any actual or threatened force here. You are right, but the Supreme Court already interpreted this section to be essentially bribery—any taking was sufficient to trigger the statute. Justice Thomas disagreed (internal citations omitted):
The Court, therefore, errs in asserting that common law extortion is the “rough equivalent of what we would now describe as `taking a bribe,’ ” ante, at 5. Regardless of whether extortion contains an “inducement” requirement, bribery and extortion are different crimes. An official who solicits or takes a bribe does not do so “under color of office”; i.e., under any pretense of official entitlement. “The distinction between bribery and extortion seems to be that the former offense consists in offering a present or receiving one, the latter in demanding a fee or present by color of office.”
Where extortion is at issue, the public official is the sole wrongdoer; because he acts “under color of office,” the law regards the payor as an innocent victim and not an accomplice. With bribery, in contrast, the payor knows the recipient official is not entitled to the payment; he, as well as official, may be punished for the offense.
Congress is well aware of the distinction between the crimes; it has always treated them separately. Compare 18 U.S.C. § 872 (“Extortion by officers or employees of the United States” (emphasis added), which criminalizes extortion by federal officials, and makes no provision for punishment of the payor), with 18 U.S.C. § 201 (“Bribery of public officials and witnesses” (emphasis added), which criminalizes bribery of and by federal officials) . By stretching the bounds of extortion to make it encompass bribery, the Court today blurs the traditional distinction between the crimes.
Once bribery and extortion were conflated, and there was no need for the prosecutor to show that the official demanded a payment under the color of law, rather than just receiving a payment, this scheme was teed up for a home run. So, Baltimore Police Officer Ocasio was found guilty on the three counts related to the extortion. But that’s not all, Ocasio was found guilty under a conspiracy charge too.
Under the prosecution’s theory, the officers and the body shop conspired together to extort money from the body shop. Yes, you read that right. The body shop was both the victim of extortion and a co-conspirator to victimize itself.
This is probably the point where, if you haven’t already, you’d now agree that this is messy. Maybe it’s okay to fudge the law a little to protect the public from faithless public servants; bribery or extortion—what does it matter because it’s all bad conduct. But this case is exactly the sort of thing that happens when you fudge the law to ensure the blameworthy get their just deserts.
Without the treating extortion as something separate from bribery, the Hobbs Act can now reach conduct far beyond what Congress arguably intended. No longer is the victim of extortion considered a victim; instead, that person is treated like anyone who would offer a bribe. So, by treating extortion as bribery, federal prosecutors are legally permitted to charge extortion victims as co-conspirators, who victimized themselves. That’s pretty neat. Although, it should be noted that this was not the first time; the Court has already held once before that a victim can be a co-conspirator too.
Justice Sotomayor, in dissent, explained the Court’s opinion as follows:
And, in its effort to make sure Ocasio, Moreno, and Mejia get their just desserts [sic], the Court’s atextual interpretation of the Hobbs Act exposes innocent victims of extortion to charges that they “conspired” with their extorter whenever they agree to pay a bribe. The Court says not to worry, it will limit the scope of a conspiracy to exclude potential defendants whose participation in the extortion amounts to no more than “mere acquiescence,” analogizing to Gebardi. * * *
It leaves it for federal prosecutors to answer those questions in the first instance, raising the specter of potentially charging everybody with conspiracy and seeing what sticks and who flips.
To make this problem more stark, consider a situation where the facts were a little different. Suppose the original officer had approached the body shop with this scheme, instead of the other way. Further suppose that the owners of the body shop maintained that they felt pressured to participate; in essence, they truly felt that they were extorted. But each and every officer denied that was the case.
Under these facts, there would be nothing to stop the body shop from being prosecuted as co-conspirators to their own victimization. And if the jury didn’t buy the owners’ denials, then they would probably be found guilty. Maybe federal prison will have art time?
On the other hand, under Justice Thomas’ interpretation of the statute, the victims could never be co-conspirators. Moreover, there is a federalism concern noted by Justice Thomas in his dissent in the Ocasio case:
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.
A case can be made for federal prosecutors to serve as a backstop against public corruption so deep that it cannot be truly investigated and prosecuted locally. But that’s not how the Hobbs Act has been interpreted and used. And, so long as the Justices keep finger painting with the Hobbs Act, nothing will change.
[i] There were allegations that the body shop would defraud the insurance company, but that is beside the point here.