Conspiracy and the Scope of the Hobbs Act

Author: Chris Gant, Contributing Member, University of Cincinnati Law Review

“You see that right there? Special Investigations Unit. Special. Get it? Ten grand. First of each month. Deliver it right here.”[1] This excerpt from the film American Gangster is an example of how a corrupt law enforcement officer might extort a criminal like Frank Lucas into paying bribes. Congress enacted the Hobbs Act in 1946 to prohibit public officials from obtaining property from others by extortion.[2] While not as sensational as the Frank Lucas example, former Baltimore Police Officer Samuel Ocasio was convicted of four offenses relating to his involvement in a kickback scheme to funnel wrecked automobiles to a Baltimore auto repair shop in exchange for monetary payments.[3] One of his four charged offenses included a conspiracy to commit extortion.[4] On appeal, Ocasio argued that this conspiracy conviction was flawed and must be vacated because he did not obtain any property from someone outside of the conspiracy.[5]

On March 2, 2015 the Supreme Court granted certiorari in United States v. Ocasio, presumably to resolve a circuit split between the Fourth and the Sixth Circuit Courts of Appeal. The split is based on incongruent rulings between the courts over whether conspiracy to commit extortion, under the Hobbs Act, requires that the conspirators agree to obtain property from someone outside of the conspiracy. The Sixth Circuit ruled in United States v. Brock that such a requirement does exist, while the Fourth Circuit reached the opposite conclusion in United States v. Ocasio, finding that there is no such requirement. The Supreme Court should adopt the Sixth Circuit’s holding because the Fourth Circuit’s ruling in Ocasio expands the scope of the Hobbs Act beyond what Congress intended. Additionally, opting for the less expansive view of the Act does not inhibit the prosecution of public officials because governments have other means for conviction, such as state laws prohibiting bribes and extortion.

The Hobbs Act and U.S. v. Brock

The Hobbs Act prohibits “conspiring” to “affect commerce . . . by . . . extortion.”[6] Importantly, “extortion” means “the obtaining of property from another, with his consent . . . . under color of title.”[7] In United States v. Brock, the defendants, Mike and Jerry Brock, owned a bail bonds company (Brock Bonding).[8] When one of Brock Bonding’s clients failed to appear in court (meaning the company would be liable to pay the bond) Jerry Brock approached the supervisory clerk for the criminal division of the county courthouse to remove the scheduled forfeiture hearing from the court’s calendar, thus removing the company’s liability to pay the bond.[9] The Brock brothers then paid the clerk for the next two-and-a-half years to “take care” of situations like these.[10] The FBI discovered their scheme and charged the brothers and the clerk with conspiring to extort money in violation of the Hobbs Act.[11] The trial court convicted each of the brothers to a twenty-one month prison term after a jury found that the brothers had violated the Hobbs Act.[12]

The Sixth Circuit Court of Appeals reversed their convictions and sentences, finding that the Hobbs Act does not permit conviction of a defendant for conspiring to extort his own property.[13] The rationale, and where the courts are split, is the interpretation of the phrase “property from another” found in the definition of extortion contained in the Hobbs Act. The Sixth Circuit took this phrase to mean that the coconspirators must form an agreement to “obtain property from someone outside the conspiracy.”[14] To support this notion the court also examined the phrase “with his consent” in the Act and rhetorically asked why, if the Hobbs Act was meant to include property in the conspiracy, would extortion victims “conspire to obtain their own consent?”[15]

The Fourth Circuit: Ocasio and Spitler

On two occasions, the Fourth Circuit has reached the opposite conclusion when interpreting the phrase “property from another.” In Ocasio, the defendant had a relationship with the Majestic Repair shop—owned by Alexis Moreno and Edwin Mejia—and under the parties’ arrangement, Ocasio would refer car owners involved in accidents to the repair shop in exchange for a cash payment.[16] This referral was contrary to the Baltimore Police Department established procedures and the Police Department’s General Orders, which state that an officer is not to accept any “compensation, reward, gift, or other consideration” without the permission of the Police Commissioner.[17] The trial court convicted Ocasio and sentenced him to eighteen months in prison. On appeal, Ocasio relied on Brock to argue that he could not be convicted of the conspiracy charge because his scheme did not involve obtaining property from outside of the conspiracy.[18]

The Fourth Circuit rejected this argument, instead relying on its precedent in United States v. Spitler. Spitler involved a scheme where an employee for the state of Maryland would approve of overbilling for the company where Spitler was employed. The Sixth Circuit also considered Spitler when making its decision, but concluded that “Spitler thus facilitated the extortion of [the company’s] property, not his own.”[19] Brock also distinguished Spitler by stating that the court “did not consider the textual anomalies raised here.”[20]

In Ocasio, the Fourth Circuit rejected the Brock argument and ruled that the “property from another” phrase does not require property to be obtained from someone outside of the conspiracy. Instead, the court asserted that the “from another” requirement refers to a person or entity other than the public official, i.e., that a public official cannot extort himself.[21]

The Supreme Court Should Reverse the Fourth Circuit

The purpose of the Hobbs Act is to prohibit public officials from obtaining property from others via extortion. This purpose is greatly expanded under the Fourth Circuit’s ruling to punish the victim (payor) of the extortion.[22] In this case, it would subject Alexis Moreno and Edwin Mejia to the charge of conspiracy to extort as well. As Brock states, “Congress knows how to prohibit the giving or offering of bribes directly.”[23] The fact that Congress has not prohibited the giving of bribes directly and clearly, lends credibility to the notion that the statute is not meant to reach those who are giving bribes.

The Fourth Circuit’s ruling is an example of overreach by the federal government. Many state laws already prohibit paying bribes to state officials.[24] In fact, the Brocks were indicted on that charge in Tennessee for their involvement in their scheme.[25] And Ocasio was still convicted on three other counts of violating the Hobbs Act, each with a maximum prison sentence of 20 years. There is no need for the conspiracy charge in order to hold the public official accountable, since he received well below the maximum sentence and could have received a much longer sentence if his conduct warranted such a punishment. Moreover, because the officials in both cases were state officers, it is better to the let states punish their conduct—and a broad reading of the Hobbs Act would intrude on this.

Courts should be, for the most part, narrowing the application of federal laws strictly to what they were intended to encompass, not expanding the scope of a federal law against someone whom it was not intended to reach. Further advancing this notion is the rule of lenity, which states that if there is more than one reasonable interpretation of a criminal statute, it should be read in favor of the defendant.[26] In this case, the fact that two appellate courts disagree as to the meaning of the statute, it is safe to deduce that there is more than one reasonable interpretation of the statute. Accepting the Fourth Circuit’s ruling as precedent would clearly go against the rule of lenity. In cases such as Brock, the Fourth Circuit’s ruling is not the narrowest application, thus disobeying the rule of lenity. Clearly, the Sixth Circuit’s ruling would be more favorable to the defendant, and under the rule of lenity, it is the interpretation that should apply.

Finally, the Fourth Circuit’s reasoning is illogical. The Fourth Circuit stated that the “property from another” requirement simply means that a public official cannot extort himself. Similar to the question presented by the Sixth Circuit in regards to consent, how does one extort oneself? Given this abnormality, it is certainly more logical to interpret that phrase to mean that the extortion must involve property from someone outside of the conspiracy.

The Supreme Court Should Narrowly Apply the Hobbs Act

The Sixth Circuit has been known for being overruled by the Supreme Court.[27] This case will buck the trend primarily because the Fourth Circuit’s ruling is one of classic federal government overreach. The Hobbs Act was meant to punish public officials for extorting bribes or other types of consideration. The Fourth Circuit’s ruling would extend this Act to the victim or payor of the extortion, and this was not the intent of the Act. Further, as a matter of statutory construction, the Fourth Circuit did not apply the rule of lenity, a well-known cannon of statutory interpretation. The Supreme Court should atypically rule alongside the Sixth Circuit and reverse the Fourth Circuit’s decision in United States v. Ocasio.

[1]American Gangster (Universal Pictures 2007). American Gangster is a biographical crime film based on the criminal career of Frank Lucas, a crime boss in Harlem in the late 1960s and 1970s.

[2] United States v. Brock, 501 F.3d 762, 768 (6th Cir. 2007).

[3] United States v. Ocasio, 750 F.3d 399, 401 (4th Cir. 2014).

[4] See 18 U.S.C § 371.

[5] Ocasio, 750 F.3d 399 at 401.

[6] 18 U.S.C §1951(a).

[7] 18 U.S.C. §1951(b)(2).

[8] United States v. Brock, 501 F.3d 762, 765 (6th Cir. 2007).

[9] Id.

[10] Id.

[11] Id.

[12] Id. at 766.

[13] Id. at 769.

[14] Id. at 762.

[15] Id. at 767.

[16] United States v. Ocasio, 750 F.3d 399, 402 (4th Cir. 2014).

[17] Id.

[18] Id. at 407.

[19] Brock, 501 F.3d at 769.

[20] Id.

[21] Ocasio, 750 F.3d at 411.

[22] It helps to understand the terminology; the victim is the payor and the extorter is the public official. Although many of the victims are more than willing to acquiesce, they are considered the victims.

[23] See e.g.18 U.S.C. §201(b)(1) (making it illegal to give, offer or promise anything of value to any federal official); id. §210 (making it illegal to bribe someone for any appointive office under the United States for any person).

[24] See Tenn. Code Ann. § 39-16-102.

[25] Ocasio, 750 F.3d at 768.

[26] See McNally v. United States, 483 U.S. 350 (1987).

[27]Walsh, Mark, A Sixth Sense: the 6th Circuit has Surpassed the 9th as the Most Reversed Appeals Court, ABA Journal, (Sept. 25, 2015).


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