The Hobbs Act: Federal Extortion Prosecution and the Color of Official Right

Introduction: What Is The Hobbs Act?

The Hobbs Act covers a wide range of criminal conduct.  In this article, we focus on the application of the Hobbs act to cases of extortion under the color of official right.

Originally intended as a weapon against labor racketeering, The Hobbs Act—codified at 18 U.S.C. § 1951—has become a primary tool for use in the Federal prosecution of state and local elected officials for robbery and extortion.

The sweep of The Hobbs Act is jurisdictionally limited as is much of federal law to the effect of an act of robbery or extortion upon interstate commerce.

Not every criminal act of robbery or extortion may be prosecuted under The Hobbs Act. Only those acts which constitute the obstruction or delay or have some similar effect upon interstate commerce qualify. However, as we will discuss in this article, the impact on interstate commerce can be direct or indirect, and is generally not difficult for prosecutors to prove

Interstate commerce is, of course, when money changes hands for commercial purpose across state lines.  But it is also much broader and includes the moving of products or services across state borders.

What does the statute actually say?

It states that—

… [w]hoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires to do so, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.

The statute goes on to define “extortion” 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.”

A too-quick reading of this language will risk breezing past crucial components of this law. It contains a number of elements that should be explored in some detail to fully comprehend.

This article focuses on the federal prosecution of officials for extortion under The Hobbs Act.

The Elements of Extortion under The Hobbs Act

When attorneys talk about the “elements” of a criminal charge, what they are referring to are the different components of the charge that must be proven beyond a reasonable doubt in a court of law in order for a prosecutor to obtain a conviction.

Generally, if one of the elements of a criminal charge cannot be proven, a defendant cannot be convicted of that charge (though the defendant may still be in jeopardy from what are called “lesser included charges,” such as Attempted Extortion, which is a complete crime upon the demand for property by a defendant).

The elements of extortion under The Hobbs Act are as follows:

  1. Interference with interstate commerce;
  2. Obtaining or attempting to obtain or conspiring to obtain property from another;
  3. With his or her consent;
  4. Induced by wrongful use of actual or threatened, force, violence, or fear or under color of official right.

Thus, while we normally think of extortion as something involving a threat of violence or the inducement of fear in the victim, the Hobbs Act can also be violated under the color of official right.

What does this mean?  It means that where a public official is concerned, the government does not have to prove that such an official threatened or took other steps involving fear to get the victim to make the payment.  Instead, the government can prove that the payment could be extorted by the nature of the public office occupied by the defendant.

Intent

The “unwritten element” of extortion under The Hobbs Act—and any criminal charge—is intent. That is, the defendant must have, to some extent, intended to commit a criminal act.

Under The Hobbs Act, specific intent to commit the crime exactly as written above is not required, however. The government need only prove that a defendant willfully performed acts that result of which were to instill fear in the victim.

One federal circuit court has held, for instance, that a defendant’s honest belief that he had a lawful right to the property involved was not relevant to the issue of intent, and therefore was not a defense.

The government does not need to show that the defendant acted with the purpose of or a desire to obstruct commerce. The government only needs to prove that the defendant undertook a course of action likely to have the effect of obstructing commerce.

Importantly, note that Element No. 2, above, allows for a prosecution for conspiring to obtain property from another.  This means that the intent requirement is satisfied even where a defendant only had the intent to cooperate with a plan to obstruct commerce by extortion.

But that is not all.  Some courts have also held that individuals who make payments to the public official can also be prosecuted as an aider and abettor, or as a co-conspirator under certain circumstances.  The key question here is whether the person who made the payments played a role in instigating the scheme.

Effect upon Interstate Commerce

The government only needs to prove that a defendant’s conduct affected interstate commerce in a minimal way.

This is, essentially, a jurisdictional element, drafted into 18 U.S.C. § 1951 because, under the U.S Constitution, much of federal jurisdiction arises from an action’s impact on interstate commerce. If a crime occurs only within a single state without any effect upon economic affairs outside of that state’s borders, it generally the subject of state and not federal criminal jurisdiction (with exceptions).

This being the case, it is a relatively low bar for the prosecution.  Importantly, to meet the interstate commerce requirement, the government can show that the effect on interstate commerce is either direct or indirect.  For example, if the extortion deprives the victim of money that the victim would otherwise use to purchase products manufactured outside the state or outside of the United States, this showing would meet the “interstate commerce” element.

It is, again, not relevant whether a defendant even knows that interstate commerce is involved with an extortionate act.

Obtaining or Attempting to Obtain or Conspiring to Obtain Property

For a Hobbs Act conviction, the government must prove that the defendant obtained, or received, the victim’s surrendered property—or the benefit of the victim’s loss of that property.

What is and isn’t “property” for the purpose of satisfying this element has been the subject of many judicial decisions, but some courts have interpreted this concept quite broadly.

For example, the right of a trash removal dealer to solicit the accounts of potential customers was found to constitute property for purposes of The Hobbs Act by the Second Circuit Court of Appeals.

The U.S. Supreme Court has ruled that intangible property qualifies as extortable property under The Hobbs Act, generally.

As to the benefit to the defendant, or the receipt of the surrendered property, it is not necessary for the government to prove that the defendant personally received the property or the benefit of the property. A coercion to transfer property to a third party will satisfy the “benefit” facet of this element.

The victim’s loss of property is the key requirement here to prove a completed offense.  However, note that attempt is also criminalized under the Hobbs Act, even if it did not actually instill fear in the victim.

With Consent

This element is the logical differentiator between robbery and extortion. In a robbery, property is taken by force from a victim, against his or her will.

With extortion, property is obtained consensually from the victim—induced by wrongful actual or threatened force, violence, or fear, or under “color of official right.”

This is a factual consideration. Was property snatched from a victim, or was it handed over?

Induced by Wrongful Actual or Threatened Force, Violence, or Fear, or Under Color of Official Right

One of the most important aspects of The Hobbs Act from a prosecutorial standpoint is that it can be used to prosecute both private and public actors.

This means that the statute applies to both private citizens who are not in public office and to “public” citizens who are.

The Hobbs Act does not limit its definition of extortion to incidents in which property is obtained through use of fear.

The Act includes as “color of official right” actions wrongful takings by public officers of property not due to the officer or his or her office, whether or not that taking was accomplished by force, threats, or any use of fear.

This includes not only affirmative takings of property but also the mere retention of things of value paid by private persons for performance of official duties.

In other words, The Hobbs Act is not merely aimed at thuggery but also public corruption. Again, when it comes to public officials, the gravamen of the offense is the coercive element arising from the position occupied by the public official.

The question of wrongfulness, here, is not whether it was wrong of a defendant to threaten force or take a bribe, but, rather, whether the receipt of property was wrongful. What must be proved by the government is whether the defendant had any lawful claim to the property in question.

Penalties under The Hobbs Act

As stated, the penalty for a conviction under The Hobbs Act is a statutory fine or imprisonment for up to 20 years—or both.

Different offenses under the Hobbs Act fall under different provisions of the federal sentencing guidelines.  Specifically as to extortion under color of official right, Guideline Section 2C1.1.  The guideline assigns points based on various aspects of the offense, including whether the defendant was a public official, whether the offense involved more than one extortion, the value of the payment (which is keyed to the fraud loss table), and other factors.

Judges are not required to sentence those convicted of extortion under The Hobbs Act concurrently. That is, sentences under The Hobbs Act may be enhanced by the sentences of other charges.

As with all white collar offenses, the sentencing guidelines in Hobbs Act cases can be quite involved.  The different in a well-researched and well-prepared argument by an experienced white collar defense lawyer can make a significant difference in the outcome.

Defenses to Hobbs Act Charges

The first argument for a criminal defense attorney representing a client being investigated or charged under The Hobbs Act is jurisdictional: Did the act(s) in question actually affect, delay, or obstruct interstate commerce?

Beyond that, the role of the criminal defense attorney is to knock out one or more of those necessary elements under The Hobbs Act discussed above.

If the defendant is not a public official, was the property obtained through the use of fear or not? Did the victim suffer any actual loss? Did the defendant benefit from the loss of the victim’s property?

And so on.

Pre-Indictment Representation in Hobbs Act Cases

If you are being investigated for extortion under The Hobbs Act, this is right time to retain the services of an experienced white collar criminal defense attorney.

Prior to indictment, it is important to take the right steps in your own defense—and to refrain from taking the wrong steps, including speaking to the Government.

If you have received a target letter, have been subpoenaed to produce documents or to testify before a grand jury, or if you have been posited questions by governments agents or your home or office searched, you need to know how to respond and how not to respond to such pressures.

Our attorneys know how to protect your rights and interests as prosecution begins to circle. We are experienced with complex cases involving voluminous documentation and multiple witnesses.

Contact an Experienced Hobbs Act Defense Attorney

If you are being investigated or have been charged with extortion under The Hobbs Act, it is crucial that you consult with an experienced Washington, DC white collar criminal defense attorney immediately.

To discuss your case with us in confidence, please contact us to schedule your free case evaluation.

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