Extortion, deprivation of rights, and the myth of the Twitter counter-punch: Part II

In my last post, I focused on the potential civil rights issues arising from the account given by Joe Scarborough and Mika Brzezinski concerning their allegation that the President, through his staff, asked them to apologize for negative coverage and make their coverage more positive in exchange for the President using his authority to stop publication of a potentially damaging story about them in the National Enquirer.  Again, there appears to be more to this story, the President denies Joe’s account, and it is unclear as yet whose version is correct.  My previous post discussed the federal statutes that make it a crime to willfully deprive a person of his rights, 18 U.S.C. 242, and to conspire to injure, oppress, threaten, or intimidate a person in the exercise of a constitutional right, or because of his exercise of a constitutional right.  18 U.S.C. 241.  But because there has been some commentary on the potential extortion and reputational blackmail aspects of this story, I will now focus on those.

First, let’s begin with the statutes that proscribe extortion.  The Hobbs Act, 18 U.S.C. 1951, does so, but I think the Hobbs Act is problematic here.  This law makes it a crime to obstruct, delay, or affect commerce by extortion.  It further defines “extortion” in section 1951(b)(2) as 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.”

The problem is that, in this case, even assuming the truth of Joe’s account, there was likely no effort to obtain “property.”  Although intangible things can be “property,” the Supreme Court held in Sekhar v. United States that “property,” for purposes of Hobbs Act extortion, must be capable of transfer from one person to another.  It must be obtainable.  The Sekhar Court also distinguished between extortion and coercion, which, the Court said, is threatening another person to do or abstain from doing something that he or she has a legal right to do or abstain from doing.  Coercion, then, need not involve transferable, obtainable property; Hobbs Act extortion does.  And the Hobbs Act does not cover mere coercion.

The other statutes that might seem directly relevant here are those in the statutory scheme involving interstate communications, 18 U.S.C. 875.  In particular, consider subsections (b) and (d), both of which forbid threatening interstate communications made with the “intent to extort.”  They also require that the threats be to “injure the person of another” (as in (b)) or to “injure the property or reputation of the addressee” (as in (d)).  If Joe’s account is true, then if the President was threatening to greenlight a story that would cause reputational or financial jury to Joe and Mika, this would seem to fit the injury element, even though it is not physical injury as required by subsection (b) (that is, if we can say that “injury to the person” also includes reputational or financial injury; of course, this could also mean physical injury only).

Here the problem is that the mens rea element requires an “intent to extort . . . money or other thing of value.”  Even in Joe’s account, the President did not seek money.  The question, then, would be whether the President’s alleged effort to extract an apology, and thereby change the substantive content of Morning Joe’s coverage, would constitute extorting a “thing of value.”  One might argue that a political commentary show’s substantive coverage of the President is a “thing of value” because it is the show’s content that attracts viewers and advertisers, revenue and ratings.   Perhaps, it could be argued, Morning Joe’s viability would be affected if it changed the way it covered the President.  But this would seem to be a contested issue in a case under either section 875(b) or section 875(d).  And if Sekhar’s understanding of extortion in the Hobbs Act context also applies to the extortion provisions of section 875, then it would not be enough to simply show that there was merely intent to coerce.

A somewhat more viable statute in the section 875 scheme could be subsection (c), which also forbids interstate communications that threaten to injure the person of another, but does not require any intent to extort.  Thus, we can avoid the extortion/coercion problem that Sekhar acknowledged, as well as the tricky issues involving money and what a “thing of value” is.   The Supreme Court held in Elonis v. United States that section 875(c) requires that the actor send a communication with the purpose of making a threat, or with knowledge that the communication will be viewed as a threat.  Mere negligence will not suffice, but the Court did not address recklessness (Justice Alito’s separate opinion would have allowed a conviction based on recklessness — “conscious[ly] disregard[ing] the risk that the communication will be viewed as a true threat”).  Again, if a threat to injure reputation or to cause financial harm satisfies the “injury to the person of another” element, then this would seem to be a better fit than the more complicated extortion statutes.

In short, those who say this alleged incident might not fit the legal standards for extortion or reputational blackmail may well be right.  I am not sure, however, that failure to satisfy extortion or reputational blackmail is, or should be, the end of the matter.  Again, if the First Amendment protects Joe and Mika from a threat of the kind alleged, then sections 241 and 242 are potentially implicated, and section 875(c) is worth a closer look.  But even if, as is certainly possible, Joe’s allegations would be insufficient to support application of the criminal statutes I have mentioned, there remains the question of whether — if the facts are as Joe alleges them — this amounts to a serious abuse of power, one that implicates the First Amendment rights of the media and that deserves greater scrutiny by Congress, the institution charged with investigating presidential abuses.

Questioning the media, even in a combative tone, is one thing, and hardly new for presidents.  But if a president seeks to do harm to individual members of the media merely because the president dislikes the content of, and viewpoint expressed in, the media’s coverage of him, that is quite another thing entirely.  And constitutionalists should stand firm against such an authoritarian posture, whether criminal or not.

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Extortion, deprivation of rights, and the myth of the Twitter counter-punch: Part I

I rarely comment on the President’s tweets, unless they implicate a legal or constitutional issue of relevance.  And I am confident that everything has been said already about the President’s repugnant tweets concerning Mika Brzezinski and Joe Scarborough.  There is a follow-up issue on which I prefer to focus, but I will add only these thoughts on the tweet itself.

First, using a Twitter account to insult people is a rather pathetic form of “counter-punching,” and probably should not count as such.  In this context, “counter-punching” would be appearing in person on Morning Joe and saying to Joe and Mika’s faces exactly what the President said via Twitter.  Second, even if it is “counter-punching,” our civil society — and notably our criminal law — has always taken an unkind view of certain disproportionate forms of “counter-punching.”  If someone pushes me on the subway, or insults me on the street, or slaps me in the face, I do not have the right to shoot him in the forehead with a rifle.  Proportionality matters.

That said, another issue arose yesterday during Morning Joe that has received some attention.  During yesterday’s broadcast, Joe and Mika described a story in which, according to them, the President — through one or more of his staff at the White House — threatened to permit the publication of a story in the National Enquirer about Joe and Mika’s personal life together if they refused to call the President and apologize for their negative commentary on him.  If they called and apologized, Joe’s account goes, the President would use his influence and connections with the Enquirer to kill the Enquirer story.  The President denies the account as it was told on the show, but Joe claims to have documentary evidence to prove the version he told.

Several commentators have explored whether this amounts to criminal extortion or reputational blackmail.  I want to add just a bit more to the criminal law angle, but I will reserve a discussion of the extortion statutes for a separate post.  Instead, I will focus this post on the potential deprivation of constitutional rights and conspiracy to do so, both of which are serious federal crimes.

For purposes of this legal discussion, I will assume the accuracy of Joe’s description of the events, though we still do not know for certain what exactly happened and it is possible that Joe’s account leaves out salient details that could affect the legal analysis here.  I also interpret his account as not simply an effort by the President to seek an apology, but also to induce Joe and Mika to stop making negative comments about the President and to cover the President in a positive light (otherwise, what’s the point?).  So based on this, here are the legal issues that I think could be relevant that concern the potential criminal deprivation of civil rights.

If Joe’s account is accurate, then it is possible that the President has endeavored to coerce the media into doing something with its coverage, or refraining from doing something with its coverage, by threatening reputational or financial harm to television hosts based on the content of their speech (or, worse still, the viewpoint expressed).  If so, this has very serious First Amendment implications, and raises the question of whether the President has willfully deprived Joe and Mika of their First Amendment — and perhaps equal protection — rights under color of law, in violation of 18 U.S.C. 242.

As always, in any section 242 case, there is the question of what “willfully” means.  The Supreme Court said in Screws v. United States that this includes “open defiance or reckless disregard of a constitutional requirement which has been made specific and definite.”  There may also be some question as to whether the President was acting “under color of law,” if he was relying simply on his private relationship with the Enquirer rather than on any official power as President.  But there is case law holding that an official acts “under color of law” when he uses the victim’s fear of his power as a public official to induce the victim to do something or refrain from doing something.  See United States v. Giordano, 442 F.3d 30 (2nd. Cir. 2006).

And that connection is strengthened if the President used White House staff to communicate his threats.  Indeed, if Joe’s account is accurate, then the use of White House staff would seem to implicate 18 U.S.C. 241, which says that it is a crime for “two or more persons to conspire to injure, oppress, threaten, or intimidate any person . . . in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same.”  The conspiracy problem is worse still if the President formed an agreement with the folks at the Enquirer in this regard, though the Enquirer denies any contact with the White House on this specific matter.  The conspiracy against rights statute does not require color of law, nor does it require an overt act in furtherance of the agreement.  Criminal liability attaches the moment that the agreement is formed.

Of course, presidents and other politicians often use their position to influence media coverage (granting special access, etc.).  Doing so is not typically thought to implicate the First Amendment.  The question here is whether, assuming the veracity of Joe’s account, there is something different — and constitutionally pernicious — about coercing a change in viewpoint by threatening to allow publication of potentially damaging information about a media figure’s personal life.  The act-omission distinction might also be important here under section 242 (if the allegation is simply that the President failed to do something), although the theory could be that the threat itself constitutes the deprivation.

All of this is subject to the usual caveats that, first, it is not clear that the President violated a criminal law; and second, even if he committed a criminal offense, he likely would not be prosecuted while in office.  Still, as I have said before, this would not immunize him from a congressional investigation or impeachment.  Some may think that further discussion of this story makes a mountain out of a molehill.  But if Joe’s account is true — if the President used his office, and those in his charge, to communicate to prominent cable news hosts that he would greenlight, or at least not intervene to stop, a potentially damaging story about their personal lives as a way of coercing them into apologizing for negative content and giving him more positive coverage — then it is hard to imagine how this would not constitute a serious abuse of power and a threat to the First Amendment of the Constitution.  And it is surely worthy of a congressional inquiry.

When does robbery of a local brothel substantially affect interstate commerce? Apparently, pretty much always.

Last year, I posted about the Supreme Court’s review of, and unsurprising decision in, Taylor v. United States.  That case, up from the Fourth Circuit, held that the jurisdictional element of the Hobbs Act, 18 U.S.C. 1951, is satisfied where there is a robbery involving a drug dealer.

This past week, the Fourth Circuit issued another opinion raising a similar question about the application of the “affects commerce” element of the Hobbs Act to an unlawful business operation.  This time, rather than drug dealers, the court in United States v. Lopez considered the 2007 robbery of a Maryland brothel.

As the court described the facts of the case, the Prince George’s County brothel was located in a first-floor apartment, staffed by a Adelaida Garcia-Calderon and a doorman/money collector.  Two young men entered, demanded money, tied the doorman’s feet and hands, and then one of them raped Garcia-Calderon at knife-point.  Another man, Carlos Cordon, walked in on the robbery and was stabbed to death by one of the perpetrators; Cordon’s body was found behind the apartment building.  Garcia-Calderon and the doorman survived, but the case remained unsolved for several years.  Finally, local police were able to match the DNA from the crime scene to Miguel Ramon Cerros-Cruz, an MS-13 member, and Alexsi Lopez.  Police also had the testimony of an MS-13 member who was incarcerated with Lopez and overheard Lopez confess to the brothel robbery and killing, while also implicating Cerros-Cruz.

Lopez was indicted for violating, and conspiring to violate, the Hobbs Act.  (Although he was 17 at the time of the crime, Lopez was 24 at the time of trial, and was subject to trial in federal district court; the five-year statute of limitations was also extended because of the DNA testing, see 18 U.S.C. 3297).  Cerros-Cruz pleaded guilty; Lopez went to trial and was convicted.  The court sentenced Lopez to 20 years in prison.  (Though I remain curious: if there was evidence that the perpetrators committed the robbery, rape, or killing in order to maintain or increase their standing with MS-13, why not charge the case under VICAR, 18 U.S.C. 1959?).

The Fourth Circuit rejected Lopez’s claim on appeal that there was insufficient evidence to show the required effect on commerce.  Citing the familiar line that the Hobbs Act requires only a de minimis effect on commerce, the court noted that a brothel — like drug dealing — is an “inherently economic enterprise.”  Moreover, the court noted, in many cases, including this one, the brothel workers will travel across state lines.  The Government also provided evidence that the brothel used condoms manufactured out-of-state, and that Lopez and Cerros-Cruz targeted the brothel because of its nature as an illegal business that dealt in cash.

Although this case feels much like Taylor, that case expressly limited its holding to situations involving drug dealers as targets and to “drugs or drug proceeds,” because the federal government has jurisdiction over those markets.  “We do not resolve what the Government must prove to establish Hobbs Act robbery where some other type of business or victim is targeted,” the Court said.  After Taylor, it is worth asking whether a small-scale, local brothel engages in the kind of commercial activity over which the United States exercises jurisdiction the way that it does with respect to the controlled substance market.  After all, the Taylor decision was arguably inevitable in light of Gonzales v. Raich, which expressly decided that Congress had the power to regulate the interstate drug marketplace by reaching even wholly intrastate, locally grown marijuana.

The Fourth Circuit did not have a similar precedent on which it could rely with respect to federal jurisdiction over an interstate brothel marketplace.  Still, existing Hobbs Act case law seems to support the Lopez holding. This includes the more general rationale offered in Taylor — citing Raich — with respect to aggregation of economic activity and Congress’s ability to reach intrastate incidents of an activity that is part of a broader class of activity that is within Congress’s reach.  See also Perez v. United States.  Just as drug dealing is a “moneymaking endeavor,” as Taylor described it, so, too, is prostitution.   To reach this activity through the Hobbs Act, though, one must conclude that robbery of a brothel would also effect an interstate brothel marketplace over which the United States exercises jurisdiction.

In addition, multiple lower federal court cases recognize that where the robbery depletes the assets of a commercial establishment, then this is enough to satisfy the jurisdictional element.  But does the Lopez case involve the depletion of assets of a business, or simply of the individual sex worker or brothel manager?  Presumably, of course, someone else  — to whom Garcia-Calderon answers — is getting a cut of the cash.  But is that cash used for purposes connected with the business (such as to buy condoms, or bed linens, or other items associated with pursuing a business that involves sexual activity)?  Also, the fact that the condoms came from out-of-state provides a thin basis for satisfying what should be a more demanding jurisdictional analysis, unless the robbers took condoms, as well.  Nonetheless, federal courts have found the Hobbs Act satisfied on much thinner grounds than exist in Lopez.

Still, it is worth considering the gravamen of Justice Thomas’s Taylor dissent, and the efforts that Justice Alito made to limit the reach of the Taylor holding (perhaps to satisfy some of Justice Thomas’s concerns).  If the Fourth Circuit is correct that the brothel’s character as a commercial establishment, even an unlawful one, is by itself sufficient to satisfy the Hobbs Act (and thus the Commerce Clause), then it would seem that any robbery of any business — no matter how small, or how local, and no matter the volume of its business nor the amount of money that it makes — would be enough to justify the exercise of federal jurisdiction under the statute.  One wonders whether that rule would be consistent not only with the statutory definition of “commerce,” but also with a Constitution that denies a general police power to the federal government.

Perhaps the Fourth Circuit, even if ultimately correct, could have offered a more substantial analysis with respect to the effect on commerce.  It is one thing to acknowledge that the Hobbs Act incorporates all of Congress’s commerce power.  It is quite another to interpret the Hobbs Act in a way that gives Congress more than that.

 

Supreme Court narrows scope of an “official act,” but keeps “misdemeanor crime of domestic violence” broad

While the decision in Whole Woman’s Health will dominate the news today, I note the other two cases of interest that came down today, as well.

In McDonnell v. United States, a unanimous Court – per the Chief Justice – vacated Governor McDonnell’s conviction under federal anti-corruption statutes, including honest services fraud and Hobbs Act extortion.  Though the term “official act” appears in the federal bribery statute but not the honest services statute or Hobbs Act, the parties agreed that this prosecution would use the bribery statute’s understanding of “official act” as the basis for applying the other relevant statutes.  See 18 U.S.C. 201(a).  The Court held that McDonnell’s jury received erroneous instructions on the meaning of an “official act.”   An “official act” is a “decision or action” on a “question, matter, cause, suit, proceeding, or controversy.” But “setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an ‘official act,'” the Court held.  Consequently, because the Court gave a narrowing construction to the statutes, there was no need to invalidate either the honest services statute or the Hobbs Act as unconstitutionally vague.

Rather than say whether McDonnell’s conduct fits the understanding of “official act” that the Court supplied here, the Court remanded the case to the Fourth Circuit to reconsider that question under the new standard.  So McDonnell is not out of the woods yet.  But his case is demonstrably stronger now.  And one wonders whether DOJ might be well-served to let go of this one.

While the Court’s reading of federal law is defensible as a matter of interpretation, I continue to believe this case was decided largely on concerns about the separation of powers, and perhaps even federalism.  This was a point that Justice Breyer articulated during oral argument, and I think the opinion tries to account for those concerns.  As the Court’s opinion explains, there was concern that the broad theory of the case that the Government had posited would have a chilling effect on governmental action in the political branches.  That is, elected officials might be wary of providing some service to, or meeting with, a constituent or citizen for fear of crossing the bounds of a prohibited quid pro quo.  Moreover, the Court explained that it had concerns about applying federal anti-corruption statutes in a way that would impose federal standards of conduct upon state and local officials and potentially displace state and local ethics or criminal laws.  Remember that Virginia did not pursue charges against McDonnell.

The remaining case today was Voisine v. United States.  There the Court held that a conviction for reckless assault on a domestic partner constitutes a “misdemeanor crime of domestic violence” for purposes of 18 U.S.C. 922(g)(9).  Using the definition in 18 U.S.C. 921(a)(33)(A), which requires the “use of . . . physical force,” the Court held that a reckless assault involves the use of physical force just the same as intentional or knowing assault.  Practically speaking, this means that a person with a conviction for a reckless domestic assault is forbidden under federal law from ever owning a firearm.

As sometimes happens in close cases like this, the Court’s opinions turned into a rather abstract debate on the criminal law.  If you like mens rea theory, you’ll love Justice Thomas’s dissent.  But beyond the high-level (and, yes, important) debate over the meaning of various mens rea terms, this case involved the serious matter of domestic violence committed by two men from Maine who also owned guns.  When officials began investigating Voisine for killing a bald eagle, they learned that he had a conviction under Maine law for reckless assault on his girlfriend, and that he owned a rifle.  Armstrong had a similar conviction for assaulting his wife.  Then, when he was the subject of a drug investigation, law enforcement officers found six guns and a large amount of ammunition in his home.  The Court found that these prior convictions were sufficient to bring both men within the ambit of 922(g)(9).

This case is a victory for proponents of tighter restrictions on firearms ownership.  But the Second Amendment implications did not escape Justice Thomas.  In a portion of his dissent in which he wrote only for himself (Justice Sotomayor joined the others parts of his dissent, but not Part III), Justice Thomas lamented that the Court’s broad understanding of the firearms possession disability here was likely unconstitutional.  Thomas clearly indicated this possibility at oral argument, when he broke his ten years of silence by asking the Government a question about the Second Amendment implications (“can you give me another area where a misdemeanor violations suspends a constitutional right?”).

I will have a bit more on the Thomas dissents in Voisine and Whole Woman’s Health in a subsequent post.  I see them as connected.

 

Supreme Court decides Taylor: knowingly robbing a drug dealer of drugs or proceeds satisfies Hobbs Act

After a long week of business travel, I’m ready to begin posting again and wanted to begin with some observations on the (in my view) egregious treatment given to Dustin Johnson yesterday at Oakmont by the United States Golf Association.  Fortunately, DJ played sterling golf down the stretch, mooted the consequences of the USGA’s concerns, and (implicitly, of course) gave the USGA a big ol’ middle finger with a dramatic birdie at 18 to widen his margin of victory in the U.S. Open.  But I have been thinking about doing some posts on what the rules of sports can learn from rules of law, and the Johnson-ball-moving controversy supplies an excellent subject for such a post (as would the almost equally egregious treatment DJ received from the PGA of America at Whistling Straits back in 2010, robbing him of his place in the playoff for the PGA Championship – I’m sure I want to revisit that, too).

But that commentary will have to wait.  More immediately, it was a big day at the Supreme Court for federal criminal justice.  Nothing shocking, but three cases announced today each have some significance for prosecutors and defense lawyers.

The Court decided Taylor v. United States.  I posted on Taylor earlier in the year (here).  Predictably, the Court, per Justice Alito, held that the jurisdictional element of the Hobbs Act, 18 U.S.C. 1951, is satisfied merely by showing that the defendant knowingly robbed a drug dealer of drugs or drug proceeds.  The opinion was short, and found that any questions about the scope of the jurisdictional element were governed by Gonzales v. Raich.  Because Congress has the authority to regulate the intrastate possession, manufacture, or distribution of controlled substances, it follows that Congress can criminalize the intrastate theft of controlled substances.

Three items from Taylor are noteworthy.  First, Justice Alito’s opinion accepted, for purposes of this litigation, the holding from Stirone v. United States that the Hobbs Act employs the full scope of congressional commerce power.  Justice Alito does not defend this proposition with any additional language, but simply says the “expansive language of the Act” cannot be interpreted otherwise.  But that is exactly the problem: the expansive language of the Act.  Had Taylor placed before the Court the question of whether the wording of the jurisdictional element was consistent with the Court’s Commerce Clause cases since 1995 (Lopez), and not 1960 (Stirone), I think Justice Alito would have had to defend the scope of the Hobbs Act more decisively.  My view is that these drug robbery cases are the somewhat easy cases, because of Raich; far more difficult applications of the jurisdictional element involve other kinds of robberies, ones that do not involve subject matter already covered by a Court decision on the scope of the Commerce Clause (e.g., robbery of, say, a local convenience store, or a home-invasion robbery of a person who also owns a small business).  Justice Alito seems to acknowledge this by limiting the holding to drug dealer robberies, and perhaps that very sentence will encourage challenges to the scope of the jurisdictional element in other robbery cases that do not involve drug dealers.

Second, Justice Alito acknowledges Justice Thomas’s lone dissent.  Justice Thomas was largely echoing concerns he has raised for twenty years about the Court’s Commerce Clause jurisprudence, and because he could not muster majorities in the previous Commerce Clause cases in which he wrote separately to express his views on Commerce Clause originalism, it is unsurprising that he is speaking for himself here, as well.  But Justice Alito then says “we have not been asked to reconsider Raich.  So our decision in Raich controls the outcome here.”  Fair enough.  But what if the Court had been asked to reconsider Raich?  I’m not sure this matters much, as I think Justice Alito (and the Chief Justice) would be highly unlikely to undo Raich.  Even if that question were before the Court, Justice Thomas would likely be writing for himself (after all, he is the only Raich dissenter who is still on the Court).

Finally, the majority opinion says the Hobbs Act is satisfied if the defendant “knowingly stole or attempted to steal drugs or drug proceeds.”  I read this as requiring proof of knowledge as to the derivation of the items sought.  But what if the defendant robbed a drug dealer and did not know the person was a drug dealer?  Or, what if the defendant knowingly targeted a drug dealer but stole items not derived from the sale of drugs (such as, for example, expensive jewelry that the victim bought with salary from legitimate employment)?  The Court’s language here could invite additional litigation in these cases on the question of where the money to purchase the stolen items came from –  legitimate sources or drug trafficking?

The Court today also decided RJR Nabisco v. European Community (here), which held that in civil RICO litigation, RICO does not apply extraterritorially unless Congress expressly makes it so.  Because civil RICO decisions can affect the scope of criminal RICO prosecutions (each kind of action derives from the same body of statutory law), I will think more about how important this case may (or may not) be in future criminal RICO cases.

And the Court decided Utah v. Strieff (here), holding that the exclusionary rule does not apply where an unconstitutional Terry stop leads to the discovery of an outstanding warrant, the arrest for which turns up drug evidence.  The discovery of the outstanding warrant, the Court held, breaks the chain of causation between the initial illegality and the seizure of the evidence.  I’ll have more to say on Strieff in a future post.

If you hide the gun you just used in a robbery in the shared basement of your apartment building, can police look there without a warrant?

The Fourth Amendment protects the people against unreasonable searches and seizures.  But what is a “search”?  One of the lasting contributions that Justice Scalia made to constitutional law was his revival of the trespass doctrine in Fourth Amendment search analysis.  In United States v. Jones and Florida v. Jardines, Justice Scalia wrote for Court majorities that a Fourth Amendment search occurs not just when there is an invasion of a person’s reasonable expectation of privacy (as the Court held in Katz v. United States), but also where the government commits a physical trespass upon a constitutionally protected area (a person, house, paper, or effect, as named in the Fourth Amendment’s text).  In Jones, this included installation of a GPS tracking device on the undercarriage of a suspect’s vehicle; in Jardines, use of a drug-sniffing dog around the perimeter of a person’s home.

Does a police officer engage in a Fourth Amendment “search” where he enters the shared basement of a multi-unit apartment building without a warrant, and looks inside of a crawl space there to find evidence of a crime?  The United States Court of Appeals for the Seventh Circuit provides some answers in United States v. Sweeney.

Two days before Christmas, 2013, a man entered a Milwaukee pub and drew a gun on the pub’s general manager, who held a bank bag full of money that would be used for the pub’s cash register.  The man escaped with the bag of money.  The manager, however, recognized the man as a former employee, Eugene Sweeney, and identified the gun he used and the specific markings that it contained.

Police went to Sweeney’s apartment building, where he was captured.  There were two apartments on each of the three floors of the building.  The front and back doors of the building are typically locked.  One officer descended a shared back staircase that led to a common basement area.  The basement contained a laundry room, hot water tanks, and a crawl space beneath the stairs.  The officer looked inside of the crawl space and found a plastic bag containing a handgun, ammunition, and a magazine.

Sweeney was charged with Hobbs Act robbery, brandishing a firearm during a crime of violence, and as a felon in possession of a firearm.   He was convicted and sentenced under the Armed Career Criminal Act.  In the district court, Sweeney unsuccessfully challenged the officer’s warrantless entry into the basement and the crawl space where the officer found the gun that was later admitted against Sweeney – the pub general manager testified that it looked like the gun that Sweeney used during the robbery.

The Seventh Circuit upheld the seizure of the gun, saying that there was no “search” as that term is used in the Fourth Amendment, and therefore no warrant was required.  The court easily found that, even though neither party had argued it, Sweeney had no reasonable expectation of privacy in the shared basement space here.  The more complicated question, however, was whether the officer’s actions constituted a physical trespass onto a constitutionally protected area.

The court said it did not – or, it did not as to Sweeney.  As to whether this was a trespass, this was a shared space over which Sweeney could not claim exclusive control, nor did he have any right to store items there or to exclude anyone from the space.  So even assuming that this was a trespass onto someone’s property, it was not Sweeney’s (as opposed to the building owner or landlord).

The other problem the court identified with Sweeney’s claim was that the officer’s intrusion, even if a common law trespass, did not involve a constitutionally protected area.  The best argument that Sweeney could make on this subject would be to say that the basement was within the curtilage of his home (his apartment).  Curtilage is the area immediately surrounding the home, which is associated with the privacies and intimacies of the home itself, and therefore is treated as part of the home for Fourth Amendment purposes.  But the court rejected that theory as applied here, consistent with other courts that have held that common basements in multi-unit dwellings are not within the curtilage of those units.  The court did not rule out the possibility that, on some set of facts, such a basement might be within the protected curtilage.  Rather, it simply held that on the facts of this case, the basement and crawl space here could not be considered within the curtilage of Sweeney’s second-floor apartment.

The court therefore affirmed Sweeney’s convictions, though it remanded for resentencing.

 

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.