From Ocasio to McDonnell: Is the existing Hobbs Act more trouble than it is worth?

Samuel Ocasio and other members of the Baltimore Police Department had an agreement with two brothers who owned a local repair shop.  In exchange for money, Ocasio and the officers would persuade people with damaged cars to take their vehicles to the shop.  This, of course, was designed to increase the brothers’ business – and it did.  By 2011, about 90% of the shop’s business resulted from the kickback scheme.  Ocasio was convicted in federal court of violating, and conspiracy to violate, the Hobbs Act, based on the theory that he conspired to obtain money from the brothers under color of official right.  But who were the victims of Ocasio’s extortion?  The brothers.  With whom did he conspire?  The brothers (there is no evidence that he conspired with anyone else).  Can the co-conspirators also be the victims?  Can you conspire with someone to extort them?

Ocasio took his case to the Supreme Court, and said the Government’s theory is contrary to the statute.  According to Ocasio, when the Hobbs Act speaks of obtaining property “from another,” it is referring to someone outside of the conspiracy.  The Supreme Court today disagreed, upholding the Hobbs Act convictions in Ocasio v. United States.

Hobbs Act extortion conspiracy (and, after today, general federal conspiracy using official-right extortion as the target offense) requires that someone conspire to obtain property from another with the other’s consent and under color of official right.  The Court held that the Government does not have to show that every co-conspirator would personally commit the underlying target offense.  Rather, it is enough if there is agreement that someone in the conspiracy commit the target offense.  The brothers could not possibly commit the underlying offense – they are not public officials, and thus do not act under color of official right.  But they certainly agreed that Ocasio would obtain property from them.  So because Ocasio had a common objective with the brothers, and he acted under color of official right, the conspiracy conviction was appropriate.

Another issue that arose in Ocasio was the meaning of a 1992 case, Evans v. United States, and the scope of the Hobbs Act’s extortion provision.  Justice Breyer wrote a concurring opinion to say that he possibly disagreed with the holding in Evans – which said that Hobbs Act extortion is the “rough equivalent” of bribery – but would not vote to reexamine Evans here because that argument had not been made.

Justice Thomas was not so restrained.  In his dissent in Ocasio, Thomas reiterated a point that he made in his Evans dissent: that extortion is not the equivalent of bribery.  Thomas also explained in detail his views about the differences between official-right extortion and bribery, and argued that the Court’s opinion has now compounded Evans’ mistake by importing the Evans misunderstanding into federal conspiracy law.  Moreover, the effort to conflate extortion and bribery has serious ramifications for federalism and for the patchwork of public corruption laws that exist at the federal and state level.  The practical effect is this, and it is noticeable by anyone who follows federal public corruption prosecutions: expanding the reach of the Hobbs Act has made it easier to prosecute state and local elected officials for corruption.  The federal bribery statute only reaches federal officials, so another mechanism is necessary, and the Hobbs Act has filled that void (as has the honest services fraud statute).  This, Thomas argued, interferes with the power of state governments to police the conduct of their own officials (think Bob McDonnell, and the differences between how Virginia law viewed his conduct and how it was viewed by federal prosecutors).

The overlap with McDonnell is striking, particularly in the Thomas dissent.  I would be surprised, based on Ocasio, if Thomas did not vote to overturn Governor McDonnell’s convictions, at least under the Hobbs Act.  I also expect that Justice Breyer can now be counted among those who are likely to vote for Governor McDonnell’s side – I already suspected that in listening to Justice Breyer’s concerns during the McDonnell oral argument, but now after Ocasio, I am even more clearly persuaded that Justice Breyer harbors very serious concerns about the scope of federal prosecutorial power in public corruption cases.  The harder question, in my mind now, is whether Justice Alito’s and Justice Kagan’s pro-prosecution positions in Ocasio foreshadows a pro-prosecution position in McDonnell.  If so, a 4-4 split is not out of the question.

Another issue that Ocasio implicates is whether the Hobbs Act is, like other federal statutes that have occupied the Court’s time in recent years (see, e.g., ACCA), becoming too problematic to leave untouched.  This is not to say that it is unconstitutional on its face, though I have expressed some concerns about the jurisdictional element in robbery cases (still, Taylor may gives us some guidance on that matter).  Nor is this to say that this is a problem exclusively for the Court to resolve.  It is, rather, to say that this has become a problem for Congress.  And in the contemporary criminal justice reform environment, if Congress were looking to a specific statute as an example of a federal law that gives massive power to federal prosecutors and has potentially been extended beyond its proper reach, Congress could do far worse than to take a close look at the Hobbs Act.

 

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