Opinion analysis: Federal conspiracy law reaches persons who agree to obtain secret kickbacks from a member of the conspiracy
on May 2, 2016 at 5:33 pm
Although my preview described the question in Ocasio v. United States as a “brain-teaser,” my post-argument review suggested that the Court would give a “simple answer” upholding Samuel Ocasio’s conviction. Today’s opinion confirms the latter view. But with three dissenting Justices plus one concurring Justice on this eight-Justice Court, the fallout from Ocasio may be, as Justice Sonia Sotomayor’s dissent suggests, to “raise more questions than answers” for future federal “official right” extortion prosecutions.
First, you need to understand and accept Evans
To evaluate Ocasio, one must first know that in 1992 the Court ruled six to three in Evans v. United States that the federal “Hobbs Act” extortion statute reaches “what we would now describe as” state public officials “taking a bribe.” That is, when a public official takes a bribe from a willing briber, we call it federal extortion “under color of official right”; the public official wrongfully uses the implicit power of his position to obtain money to which he is not entitled, in return for promising some official action. While the Evans rule was based on the Court’s view of the common law, it might also be explained as upholding the only method federal prosecutors have to reach state-official bribery schemes, because there is no general federal bribery statute reaching state officials. (Other than in certain narrow circumstances, the federal bribery statute reaches only federal, not state, officials.) In circumstances where state or local officials are not enforcing (for whatever reason, including corruption) their own anti-bribery laws, federal intervention into state affairs is viewed by some as a “good thing,” not unlike federal intervention in certain criminal civil rights scenarios.
Note, however, that Justice Clarence Thomas’s dissent in Evans, and his similar dissent today in Ocasio, strongly disagree: the “under color of official right” federal extortion interpretation, he says, “tramples” “sovereignty interests” and “wrenches from States the presumptive control that they should have over their own officials’ wrongdoing.” With Justice Stephen Breyer agreeing today “with the sentiment expressed” by Justice Thomas (that “Evans … may well have been wrongly decided”) and concurring only because Ocasio did not ask that Evans be overruled — and all other opinions today also reserving that question — we may hear more about it in the future. But for today, Evans remains “good law.”
What about a conspiracy to commit “under color of official right” extortion?
In Ocasio, the question is one of conspiracy law: can a group of people be convicted of conspiring to commit “under color of official right” extortion, when they are agreeing merely to obtain secret kickbacks from one of their own group? Or as Justice Sotomayor pejoratively described it, “they agree only to transfer property among themselves”? Justice Samuel Alito’s opinion for five Justices (Justice Breyer’s concurrence joining “the majority’s opinion in full”) saw the case as easily answered in the affirmative under “longstanding principles of conspiracy law.”
In brief: Samuel Ocasio and other Baltimore police officers agreed with the owners of a local auto-body shop to steer owners of cars damaged in accidents to the body shop in return for kickbacks paid by the body shop owners to the officers. Thus the officers undisputedly committed federal Hobbs Act extortion: they “affected commerce” by “obtaining property from another” (the body shop owners), “under color of official right” (that is, by virtue of their official positions as first responders to traffic accidents).
The body shop owners, not being public officials, could not be charged with federal extortion. (And a federal aiding and abetting theory was not used or examined here.) But they were charged, with Ocasio, with federal conspiracy. (For unexplained reasons, the prosecutors used the general federal conspiracy statute, Section 371, rather than the specific Hobbs Act conspiracy provision. Some readers have suggested this could make a difference here, but I don’t see how under the terms of today’s decision.) So Ocasio made this disarmingly simple argument: because the Hobbs Act requires that property be obtained “from another,” but the property here belonged to the body shop owners themselves, they did not agree to obtain property “from another” but only from themselves — and therefore they could not agree (conspire) with Officer Ocasio to commit that crime. So, Ocasio argued, his own conspiracy conviction should be vacated.
But all conspirators here agreed that the crime “be committed”
The majority began by reciting, under “age-old” conspiracy law principles, that “a conspirator need not agree to commit every part of the substantive offense,” so long as all conspirators acted “with the specific intent that the underlying crime be committed” (emphasis in the original, and citing sources ranging from the Court’s 1997 decision Salinas v. United States back to Bishop’s 1882 Commentaries on the Criminal Law). Thus even a person who is “incapable of committing the substantive offense himself” may still be convicted of conspiring to do so (citing the Court’s 1915 decision in United States v. Rabinowich). For example, just over a hundred years ago, the Court ruled in United States v. Holte that, under the Mann Act, a woman could be convicted of conspiring to transport herself across state lines for an immoral purpose, even though she could not be convicted of the substantive offense itself.
These principles and precedents were sufficient “to resolve this case.” Ocasio and other officers plainly agreed to obtain property “from another,” and the body shop owners “agree[d] to help” him commit this crime. Thus they all shared “a common criminal objective.” For this “very simple reason,” the argument that the body shop owners were not agreeing to take property from another “fails” to undermine the theory that they conspired to assist Ocasio to do so. “Nothing in the text of the Hobbs Act even remotely undermines th[e] conclusion” that “fundamental” conspiracy principles support Ocasio’s conviction here (and thus the principles of “lenity” and “federalism” are “unavailing”).
The Court’s opinion is careful, however, to say that not every local public official bribery scheme is now federally indictable as an extortion conspiracy. Although persons who pay bribes to public officials often “grudgingly consent,” “such consent is quite different from the mens rea necessary for a conspiracy.” While this seems correct, it does, as Justice Sotomayor notes in dissent, raise questions of how to distinguish, and leaves federal prosecutors with great discretion. That objection, however, hardly separates federal extortion from the myriad other crimes that federal prosecutors oversee – and as I have written elsewhere, with the modern proliferation of federal criminal statutes, virtually any state crime can be creatively charged federally as well. It is discretion (and resources), not clear legal demarcation, that restrains federal prosecution.
Perhaps a more interesting avenue of inquiry growing out of today’s decision will be to apply a concept of “grudging consent” to the oft-questioned phenomenon of “consent” to search under the Fourth Amendment, in circumstances where few rational persons would willingly consent (see, for example, the Court’s 2002 ruling in United States v. Drayton). But that discussion is for a different forum.
Justice Sotomayor dissented from Ocasio today, opining that employing a concept of a person “conspiring” to obtain money “from himself” is “not the most natural or logical way” of interpreting the Hobbs Act. Instead, she writes that “the relevant entity to consider,” when applying the “from another” text, is “the conspiratorial group.” Thus she would rule that “the most natural reading” would be to accept Ocasio’s argument that one cannot conspire to violate the Hobbs Act unless the object is to obtain property “from an entity different or distinct from the conspiracy” itself.
To me, however, what is most interesting about this plausible dissenting view, is that Chief Justice John Roberts silently joined Justice Sotomayor’s opinion. That has not been a common pairing on the Court, although Justice Sotomayor was the only joiner in the Chief Justice’s dissent in Bank Markazi v. Peterson just eleven days ago. With over a decade now on the Court, the Chief Justice, who had little criminal law experience in his prior career, seems clearly to be developing his own independent philosophy of criminal law and procedure. Keep your eye on Chief Justice Roberts in future criminal cases.
Finally, Justice Thomas adhered to his dissenting view in Evans and argued today that that ruling ought not be “extended’ to conspiracy cases. In response, Justice Alito merely observed in a footnote that it would be anomalous to hold that a single statutory provision means one thing for the substantive crime but another when conspiracy is charged. Again, however, at least four Justices appear to now be open to the idea that Evans should be revisited. (And on this point, although modern Snapchat memories fade quickly, one can wonder what difference Justice Scalia’s presence might have made today.)
The crime of extortion has always been a difficult one to understand, beyond its paradigmatic “obtaining property by threat of force” context (which was developed in common law to permit prosecution even when property was not “immediately” taken “from the person” in a forceful robbery). The complicated federal definition of “under color of official right” extortion has now added decades of additional confusion. Today’s decision does not resolve any of these large concerns. It merely upholds, unless Congress decides otherwise, the application of Hobbs Act extortion to kickback schemes between corrupt public officials and individuals who willingly pay bribes. One can always ask, of course, why Officer Ocasio and his friends were not prosecuted by local Maryland authorities. But until the overall mysteries of federalism are resolved, the result today does not seem wrong as a matter of case-specific practical reality.