Argument preview: A brain-teaser for criminal conspiracy law
on Oct 2, 2015 at 4:20 pm
The Court’s first criminal case of the Term presents a real brain teaser: may a defendant be convicted of conspiracy to commit an offense, when he has the intent necessary to commit the offense but his co-conspirator does not? The case arises in the specific context of the unusual federal Hobbs Act extortion statute, and getting to the specific question initially requires some complex explanation. But unless I misunderstand it, the general question is as old as the common law.
The facts and the law
In Ocasio v. United States, set for argument on Tuesday October 6, the defendant was charged with extortion by a public official “under color of official right” – an offense that would more commonly be described as accepting a bribe. Ocasio was a Baltimore Police Department officer (“BPD”), and along with a number of other officers, he was charged with accepting “kickbacks” from a local auto-body repair shop (owned by the Mejia brothers) in return for “steering” cars involved in traffic accidents to the body shop. Because there is no general federal bribery statute, the government turned to the Hobbs Act and the general federal conspiracy statute. (And as is often true in such cases, nothing in the record reveals why federal, rather than state, prosecutors handled this case.)
The Hobbs Act is an extortion statute enacted in the 1930s, and it prohibits acts we normally think of as extortion: using threats, violence, or fear to obtain property from another, with the victim’s “consent” induced by the threats, violence, or fear. However, at common law the crime of “extortion” also applied to public officials who sought to collect an unlawful additional “fee” from people needing their public official services. Thus the Hobbs Act also condemns efforts to obtain the property of another person with his “consent” when induced “under color of official right.” In United States v. Evans (1992), the Court ruled that under this “under color of official right” language, a public official commits “extortion” merely by accepting a bribe in return for some official act (a “quid pro quo” relationship).
Evans produced a somewhat fractured set of opinions, but its overall holding was clear: a public official such as Ocasio commits extortion by accepting a kickback in return for using his official position corruptly. Thus Ocasio was convicted on three counts of substantive Hobbs Act extortion (which are not at issue here).
The “agreement,” at the heart of the crime of conspiracy, is the issue here.
The government, however, also charged Ocasio with conspiring to commit Hobbs Act extortion, and the jury convicted him on that count as well. The indictment charged that Ocasio, other officers, and the Mejia brothers had all conspired to “unlawfully obtain under color of official right money and other property” from the Mejias and their body shop. It is hornbook law that the heart of the crime of conspiracy is “agreement” between the co-conspirators to commit the target offense. Thus the government had to prove that Ocasio and his co-conspirators “agreed” to commit extortion, which the Hobbs Act defines as “the obtaining property from another.”
“From another” is the linguistic nut on which the question presented in this case turns: “Does a conspiracy to commit extortion require that the conspirators agree to obtain property from someone outside the conspiracy?” Ocasio argues that because the Mejia brothers were transferring their own property (the kickbacks) to Ocasio, they did not (and could not) agree to a plan to obtain property “from another.” Although Ocasio may indeed have planned to obtain property “from another” (the Mejias), the Mejias did not – it was their property, not “another’s.” Thus, Ocasio contends, the “unity of purpose” that he says conspiracy requires (quoting a 1946 Supreme Court decision) was lacking.
Ocasio contends that his position – that “Hobbs Act property must be from someone outside the conspiracy” — flows directly from the plain language “from another.” This is perhaps too broad: it seems that the eleven officers charged with conspiracy in this case all “agreed” among themselves to obtain property “from another” (the Mejias). Thus even if the Mejias were in on the scheme and actively encouraging it, as the evidences suggests, the officers could be convicted of conspiring among themselves even though the kickbacks came from persons actively participating inside the conspiracy. (By the way, only Ocasio tried this case to verdict; all the others pled out.)
But Ocasio claims that the jury in his trial was asked to convict only on the theory that the conspiracy was solely between the Mejias and him, and that the jury was never “asked to find” agreement between him and anyone else. Thus, says Ocasio, the question presented is pure: may a public official be convicted of conspiracy to commit “under color of official right” extortion, when his only “agreement” is with the payor of the bribe, who by definition is paying with his own property, not property of “another.” It seems that this factual question – what was the theory on which the jury was asked to convict – will have to be settled before the legal question is answered.
The federal government presents a number of arguments (perhaps overly complicated, see for example the semantics at page 25 of its brief) in opposition. It points to settled law that not all co-conspirators must commit every element of the underlying offense, as well as a 1915 case – United States v. Holte – holding that a woman may be convicted of conspiring to transport herself across state lines (for an immoral purpose). The government also points to old New York cases (relevant because the federal Hobbs Act was based on New York law), in which individuals who paid a bribe were apparently convicted of conspiracy to extort. Ocasio responds that the statute in Holte did not require transport of “another” woman, and that the New York cases involved multiple co-conspirators – which, under Ocasio’s theory, this case did not.
Importantly, the federal government promises that its theory does not turn every act of bribery into federal extortion; only “active participants” in a bribery/kickback scheme are co-conspirators – otherwise they are victims. The Fourth Circuit and other circuits have adopted this distinction, which perhaps can be drawn from a definition of what “with consent” actually means. But Ocasio’s theory (Hobbs Act property must be from someone “outside the conspiracy”) was endorsed in the Sixth Circuit’s 2007 opinion in United States v. Brock, written by respected Judge Jeffrey Sutton (who perhaps not coincidentally was an early clerk to Justice Antonin Scalia). This represents the circuit split that supports review now. Brock, however, addressed a slightly different factual scenario – there it was the bribe payor, rather than the public official, who argued that the bribe he agreed to pay was not “from another.” It will be interesting to see what the Justices have to say about Brock.
Why this case is a brain teaser
In considering this case, my thoughts just circle around and around. And I find the briefs of both parties somewhat unsatisfying. For example, I don’t understand why the federal government did not present at least some argument that, in fact, the statutory language “from another” does not plainly mean “someone outside the conspiracy.” Appearing to concede the “plain language” ground is a mistake in any statutory case.
Moreover, a point not found in either brief keeps popping up for me: that under the modern “unilateral” view of conspiracy, such as that found in the Model Penal Code (Section 504), a person can be convicted of conspiring with an undercover agent. That is, so long as one person has the required mental state and believes he is agreeing with another to commit a crime, he may be convicted of conspiracy even if the other person secretly is not “agreeing.” This was not the view of the common law (which required a “bilateral” agreement) — and the Court has previously looked hard to common law in interpreting the Hobbs Act. However, I have always thought that the modern, unilateral rule was accepted for federal conspiracy law. But perhaps that is not so clear: the federal government only obliquely refers to it, deep into its brief (page 32 n.6), and relies on what it calls the “third-party exception,” which is not further explained. Meanwhile, Ocasio presents his case as though it involves no “third party,” but rather simply an agreement between the Mejias and him. And, he says, the Mejias simply did not agree to try to obtain property “from another” – they merely agreed to transfer their own money to him. So Ocasio’s argument becomes rather simple: because there was no agreement to violate the terms of the Hobbs Act, there was no conspiracy conviction.
Yet Ocasio plainly did agree to obtain property from another – so his conspiratorial liability seems clear. This distinguishes the case from Brock. Perhaps the Mejias could not be convicted of conspiracy – “from another” protects them – and indeed they apparently pled guilty only to the substantive crime, not conspiracy. But, says the federal government, Ocasio can claim no such protection, and his conduct and mens rea satisfied every element of the conspiracy crime.
“And yet,” Ocasio might respond, “the Mejias did not agree with me to get property ‘from another’” — and conspiracy irreducibly requires an agreement to commit the defined crime. It was Congress’s choice to use the words “from another,” and if that undermines the conviction here, it is for Congress to address. And so we go, around and around. How can a person be convicted of conspiring with an undercover agent, when the agent is not actually agreeing to commit the crime? Whether the life of this law will be logic, or practical experience, may be determined in this case.
One last point: Ocasio rhetorically rings the bells of “prosecutorial overreaching” and federalism (arguing that state and local bribery prosecutions should be left to the states). Given the Court’s recent attention to cases in which it has perceived such overreaching – think of Yates v. United States (the fish case) and Mellouli v. Lynch (the sock case), both last Term – such arguments appear to speak to a theme that some “conservative” as well as “liberal” Justices are currently considering. Listen next Tuesday for those themes as well. And after an hour, we shall see whether either side can plainly “count to five,” as Justice Brennan used to say.