What is Hobbs Act Extortion?
Hobbs Act extortion charges can be confusing for non-attorneys and for attorneys who don’t practice white collar criminal defense in the federal criminal courts. The Hobbs Act covers two categories of crime – it covers robberies when there is federal jurisdiction, but it also covers extortion which can include bribery by public officials.
What is extortion under federal law, and what does the government have to prove to convict someone of Hobbs Act extortion?
Can public officials be prosecuted under the Hobbs Act for accepting bribes? When would a bribe be considered extortion?
What is the Hobbs Act?
The Hobbs Act is found at 18 USC Section 1951, and is titled “interference with commerce by threats or violence:”
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 so to do, 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 Hobbs Act makes it a crime punishable by up to 20 years to commit either 1) robbery or 2) extortion when the robbery or extortion impacts interstate commerce.
Although robberies that affect interstate commerce are also prosecuted under the Hobbs Act, in this article we are focusing on extortion as defined by the Hobbs Act – what is Hobbs Act extortion, and what does the government have to prove to get a conviction?
What is Hobbs Act Extortion?
The Hobbs Act was passed by Congress in 1946 to close a “loophole” in the Anti-Racketeering Act.
It was a direct response to the US Supreme Court’s decision in United States v. Teamsters Local 807, which held that wage payments to employees do not qualify as a demand for payment under the Anti-Racketeering Act, even though the “wage payments” were a demand for payment from trucking companies by the Union in return for allowing their trucks to operate New York City.
The Hobbs Act defines 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,” which would have covered conduct like that in the Teamsters Local 807 case if it involved threats of violence or if it was committed by a public official.
What are the Elements of Hobbs Act Extortion?
In addition to the jurisdictional requirements, Hobbs Act extortion requires: 1) the obtaining of property from another, 2) with their consent, 3) when the consent is obtained by the wrongful use of actual or threatened force, violence, or fear.
This definition would cover something like a “protection racket,” where members of a crime organization go to local store owners and demand payment in return for “protection” – meaning, if the store owner pays, the persons demanding payment won’t beat them up or burn their store down.
But there is another, alternate element that Congress added: “…or under color of official right.” What does that mean?
Is Bribery of Public Officials Covered by the Hobbs Act?
“Under color of official right” covers situations where force or violence is not threatened, but the person demanding payment is a public official.
This clause in the Hobbs Act has allowed prosecutors to expand the use of the Hobbs Act’s extortion provisions beyond the prosecution of organized crime or labor unions and to bring cases against public officials who would not have otherwise have qualified for prosecution under federal bribery laws…
What is Considered Bribery of Public Officials Under Federal Law?
The federal bribery statute, found at 18 USC Section 201, makes it a crime for a federal public official or persons acting on behalf of the federal government to accept a bribe. A prosecution under Section 201 requires a “quid pro quo,” or an agreement that the federal official will use the power of their office to benefit the person paying the bribe, in exchange for the payment.
What if the person accepting the bribe is a state or local official, though? Section 201 only applies to federal officials…
Methods for federal prosecutors to charge state and local officials with bribery include:
- The Foreign Corrupt Practices Act (FCPA);
- The honest services fraud provision;
- 18 USC Section 666, or bribery in connection with federal programs; and
- Hobbs Act extortion, or extortion “under color of official right.”
Evans v. United States – Extortion Under Color of Official Right
Extortion “under color of official right” is easier for the prosecution to prove than a traditional bribery prosecution under Section 201 would be.
For example, in Evans v. United States, the Supreme Court held that a politician can be convicted of Hobbs Act extortion even when the politician does not ask for the payment, much less demand payment or make threats.
In Evans, an FBI agent posed as a real estate developer who wanted to rezone a parcel of land in the Atlanta, Georgia area. The agent gave a politician $7000 cash along with a $1000 donation to the politician’s campaign.
Although the politician did not ask for the money or initiate the contact, he also did not report the cash on his campaign finance forms or his tax returns.
The US Supreme Court found that it did not matter – a demand for payment is not an element of Hobbs Act extortion and it is enough that the politician accepted the money without reporting it, knowing that the cash was given to him with an expectation that the politician would exercise his official power to benefit the payor.
Does the Hobbs Act Cover Attempt and Conspiracy?
What if a public official asks for payment in exchange for consideration, but the target refuses to pay? No money changes hands, no extortion? An attempt to commit Hobbs Act extortion is punishable as if the extortion had been completed:
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 so to do…
The statute covers conspiracy to commit extortion as well as attempt – you could be convicted of Hobbs Act extortion even if you were not directly involved in the transaction…
What is the Jurisdictional Requirement for Hobbs Act Extortion Charges?
No person can be prosecuted in federal court unless the federal court has jurisdiction over the alleged crimes, which is why the first element of Hobbs Act extortion charges is that the alleged crime affected interstate commerce:
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…
The jurisdictional requirement is an element of the offense that must be proven beyond any reasonable doubt, but the courts have interpreted the jurisdictional requirement loosely – was the cash intended to be used in any way that would touch on interstate commerce?
Or did the public official or someone else involved in the alleged crime travel between states, bringing their actions under the Travel Act, 18 U.S.C. § 1952, which prohibits interstate travel, use of the mail, or use of any “facility in interstate or foreign commerce” to further unlawful activity (unlawful activity would include extortion)?
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