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Hobbs Act 101

This is one of a series of blog posts surveying federal criminal law topics, grounded for the most part on a study of official federal circuit jury instructions. This one surveys Hobbs Act crimes. Before we get started, you may wish to look at the previous "101" posts:

Conspiracy 101
Mail and wire fraud 101 part one (jurisdictional elements)
Mail and wire fraud 101 part 2 (elements in common)
Obstruction of justice 101

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The Hobbs Act, codified at 18 U.S.C. § 1951 was enacted in 1946 to combat labor union racketeering, but its terms do not limit it to labor unions, and it does not require proof of racketeering (although a violation of the Hobbs Act may be part of a "pattern of racketeering activity" in racketeering prosecutions). There are three Hobbs Act crimes:

  1. Extortion by force or threats of force
  2. Extortion under color of official right
  3. Robbery

Each of these acts is paired with a common jurisdictional element: The government must prove that the defendant's conduct "in any way or degree" affected commerce. The government does not have to prove that the defendant knew about or intended an effect on commerce, or that there was an actual effect on commerce. The government need only show that "the natural result of the offense would be to cause an effect on interstate commerce to any degree, however minimal or slight." Model Crim. Jury Instr. 9th Cir. 8.143B (2016). See also Taylor v. United States, 136 S.Ct. 2074, 2081 (2016) (robbery of drug dealer satisfied the commerce element; "as a matter of law, the market for illegal drugs is 'commerce over which the United States has jurisdiction'").

The statute is silent on mens rea. Circuit instructions may omit it (Fifth and Tenth), require willfulness (Third), knowingly (Fifth and Eleventh), voluntarily and intentionally (Eighth), or require the specific intent to acquire property (Ninth).

The statute includes language that supports charging Hobbs Act crimes as an attempt or a conspiracy. The conspiracy clause of § 1951 does not require proof of an overt act. Attempts and conspiracies are sometimes charged where the liability is based on an undercover operation using government funds, or where there is no actual effect on commerce. See Pattern Crim. Jury Instr. 6th Cir. 17.01 Comment (2019).

Property includes tangible and intangible things of value. Scheidler v. National Organization for Women, Inc., 537 U.S. 393, 402 (2003), but the property must be transferrable. Sekhar v. United States, 570 U.S. 729, 734 (2013). Extortion requires deprivation and acquisition of property. Scheidler, id. at 404.

Robbery and extortion are defined in 18 U.S.C. § 1951(b)(2).

Extortion under color of official right "is the wrongful taking by a public officer of money or property not due him or his office, whether or not the taking was accompanied by force, threats or use of fear. So if a public official voluntarily and intentionally misuses his public office and power for the wrongful purpose of inducing a victim to part with property, such activity constitutes extortion." Model Crim. Jury Instr. 8th Cir. 6.18.1951 (2017).

Extortion by color of official right can only be committed by public officials (although non-public officials may aid and abet or conspire to commit the crime). It is the "rough equivalent of what we would now describe as 'taking a bribe.'" Evans v. United States, 504 U.S. 255, 260 (1992). Evans affirmed a conviction based on an official's passive acceptance of a payment known to have been offered in exchange for a specific requested exercise of official power. A person who impersonates a public official does not act under color of official right. Fed. Crim. Jury Instr. 7th Cir. 18 U.S.C. § 1951 Color of Official Right—Definition Comment (2018).

"A Hobbs Act conviction for extortion under color of official right requires proof of a quid pro quo.... Fulfillment of the quid pro quo is not an element of the offense. The quo in a Hobbs Act extortion under color of official right prosecution is doing or not doing or agreeing to do or not do an official act." Pattern Crim. Jury Instr. 11th Cir. OI O70.2 Comment (2019) (citations omitted).

Official act is a term that is also used in bribery prosecutions under 18 U.S.C. § 201. It refers to a decision or action on a question, matter, cause, suit, proceeding or controversy that involves

  • "a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee." McDonnell v. United States, 136 S.Ct. 2355, 2371-72 (2016).
  • It must be something specific and focused that is "pending" or "may by law be brought" before a public official. Id. at 2372.
  • The public official must make a decision, take an action on it, or agree to do so. Id.

The decision or action could be using his or her official position to exert pressure on another official to perform an "official act," or advising another official, knowing or intending that such advice will form the basis for an "official act" by another official. Id. But "[s]etting up a meeting, talking to another official, or organizing an event (or agreeing to do so)—without more—does not fit that definition of 'official act.'" Id. It does not matter that the acts would have or should have taken without the bribe. See City of Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365, 378 (1991).

Where an elected official is charged with extorting campaign contributions, the government must prove "an explicit promise or undertaking" by the public official. McCormick v. United States, 500 U.S. 257 (1991).

The government need not prove that the conspirators sought or obtained money from someone outside the conspiracy or that each member of the conspiracy was capable of carrying out the extortion. Ocasio v. United States, 136 S.Ct. 1423 (2016).

The statutory maximum penalty is twenty years. The guidelines range can be readily ascertained by using the Federal Sentencing Guidelines Calculator.

(10/23/19)

 
 
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