Hobbs Act
 | This article may be too technical for most readers to understand. (November 2017) |
The Hobbs Act, named after Congressman Sam Hobbs (D-AL) and codified at 18 U.S.C. § 1951, is a U.S. federal law enacted in 1946 that provides:
(a) Whoever 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, 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.
Section 1951 also proscribes conspiracy to commit robbery or extortion without reference to the conspiracy statute at 18 U.S.C. § 371. Although the Hobbs Act was enacted as a statute to combat racketeering in labor-management disputes, the statute is frequently used in connection with cases involving public corruption, commercial disputes, and corruption directed at members of labor unions.
The Hobbs Act criminalizes both robbery and extortion, where:
- "robbery" means the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, and
- "extortion" means 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.
Jurisdictional element
In interpreting the Hobbs Act, the Supreme Court has held that the statute employs the fullest extent of federal authority under the Commerce Clause. Thus, the lower federal courts have recognized that an actual effect on commerce is sufficient to satisfy the federal jurisdictional element even if it is slight or de minimis.
The government will often use the depletion of assets theory to prove the jurisdictional element. Under this theory, interstate commerce is affected when an enterprise, which either is actively engaged in interstate commerce or customarily purchases items in interstate commerce, has its assets depleted through extortion, thereby curtailing the victim's potential as a purchaser of such goods. While the courts have interpreted the jurisdictional element liberally, it is not a formality; courts have drawn a distinction under the depletion of assets theory between individuals and businesses. While depletion of a business' assets is usually sufficient to show an effect on interstate commerce, depletion of an individual's assets generally is not. Representatively, the Second Circuit reasoned in United States v. Perrotta (2002)[1] that making no distinction between individuals and businesses would bring under the ambit of the Hobbs Act every conceivable robbery or extortion.
Extortion by fear
The Hobbs Act covers extortionate threats of physical, economic and informational harm (i.e. blackmail). To be "wrongful," a threat of physical violence must instill some degree of duress in the target of the extortion.[2] Furthermore, it is unlikely an economic threat is "wrongful" for Hobbs Act purposes unless a defendant purports to have the power to harm another person economically and that person believes the defendant will use that power to deprive him of something to which he is legally entitled.[3] Finally, in the context of blackmail, a Hobbs Act prosecution is probably proper if there is no nexus between the information the defendant threatens to expose and the defendant's claim against the property of the target.[4]
Extortion under color of law
The Hobbs Act also reaches extortionate acts by public officials acting under the color of law. A public official commits extortion under the color of law when he obtains a payment to which he is not entitled knowing that it was made in exchange for official acts.[5] § 1951 therefore not only embraces the same conduct the federal bribery statute (18 U.S.C. § 201) prohibits, it goes further in two ways:
- § 1951 is not limited to federal public officials.
- The government need only prove a public official agreed to take some official action in exchange for payment as opportunities arose to do so (i.e. a "stream of benefits" theory) to sustain a § 1951 charge whereas, under § 201, the government must prove an express quid pro quo (or something approaching one).[6]
It is important to note, however, that it is irrelevant whether the public official in fact intended to hold up his or her end of the bargain—it is enough that the official had knowledge of the payor's intent to buy official acts. Notwithstanding its potentially broad reach, § 1951 is narrower than § 201 in at least one important respect: Under § 201, both the official receiving a bribe and the person bribing him have committed a federal crime, but, under § 1951, a payor of a bribe is most likely not guilty as an accomplice to extortion.[7]
Activity unrelated to robbery or extortion
On February 28, 2006, the Supreme Court of the United States decided Scheidler v. National Organization for Women. The Court's unanimous opinion held that physical violence unrelated to robbery or extortion falls outside the scope of the Hobbs Act, and that the United States Congress did not intend the Act to create a "freestanding physical violence offense." For that reason, the Court held, abortion clinics could not use the Hobbs Act to obtain an injunction against anti-abortion protesters.
On June 26, 2013, in Sekhar v. United States,[8] the Court ruled that threats to a public official in order to get him to use his non-transferable property (in this case, a general counsel's recommendation to a government official with respect to approving an investment) in a certain way did not constitute "the obtaining of property from another" within the meaning of the Act. The Court reasoned that the defendant did not seek to "obtain" the recommendation from the attorney, but instead wanted the attorney to make the recommendation a certain way, which is the crime of coercion (not proscribed by the Hobbs Act), not extortion (proscribed by the Hobbs Act).
See also
Notes
- ^ United States v. Perrotta, 313 F.3d 33, 37 (2d Cir. 2002).
- ^ See United States v. Zhou, 428 F.3d 361 (2d Cir. 2005).
- ^ See, e.g. United States v. Capo, 791 F.2d 1054 (2d Cir. 1992); United States v. Albertson, 971 F. Supp. 837 (D. Del. 1997).
- ^ See United States v. Jackson, 196 F.3d 383 (2d Cir. 2000).
- ^ See Evans v. United States, 504 U.S. 255 (1992).
- ^ See United States v. Kincaid-Chauncey, 556 F.3d 923 (9th Cir. 2009); see also United States v. Ganim, 510 F.3d 134 (2d Cir. 2007) (Sotomayor, J.).
- ^ See United States v. Brock, 501 F.3d 762 (6th Cir. 2007).
- ^ Sekhar v. United States, No. 12–357, ___ U.S. ___ (2013)
References
- Doyle, Charles (November 6, 2018). Robbery, Extortion, and Bribery in One Place: A Legal Overview of the Hobbs Act (PDF). Washington, DC: Congressional Research Service. Retrieved 23 November 2018.
- Matthew T. Grady (2005). "Extortion May No Longer Mean Extortion after Scheidler v. National Organization for Women, Inc.". North Dakota Law Review. 81 (1). University of North Dakota: 33.
- James Lindgren (1988). "The Elusive Distinction Between Bribery and Extortion: From the Common Law to the Hobbs Act". UCLA Law Review. 35. University of California at Los Angeles: 815.
- Joseph Maurice Harary (1985). "Misapplication of the Hobbs Act to Bribery". Columbia Law Review. 85. Columbia Law School: 1340.
- Charles F.C. Ruff (1977). "Federal Prosecution of Local Corruption: A Case Study in the Making of Law Enforcement Policy". Georgia Law Review. 65. University of Georgia School of Law: 1171.
- Herbert J. Stern (1971). "Prosecution of Local Political Corruption under the Hobbs Act: The Unnecessary Distinction Between Bribery and Extortion". Seton Hall Law Review. 3. Seton Hall University School of Law: 1.