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 inOcasio, 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.
The dissents
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.)
Conclusion
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.
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