Robbery, Extortion, and Bribery in One Place: A Legal Overview of the Hobbs Act
Released: 2018-11-06T00:00:00

Introduction

One defendant robbed local drug dealers. A second, a police officer, directed the victims of traffic accidents to a particular body shop for a kickback. A third, a state governor, accepted lavish gifts from a businessman who hoped to benefit from his largesse. All three were prosecuted under the Hobbs Act, the federal criminal statute that outlaws obstructing interstate commerce by robbery or extortion.

The Hobbs Act, 18 U.S.C. § 1951, began as the Anti-Racketeering Act in 1934, which punished obstructions of commerce "by extortion, violence, coercion, or intimidation." Congress recast the statute in the Hobbs Act in 1946 and polished it in 1948 in the revision of federal criminal law. Except for an adjustment in the fine schedule, the statute has remained unchanged ever since. The Supreme Court has visited the Hobbs Act on several occasions to review the statute's related, but very distinct, crimes. One proscribes robbery and is sometimes used to prosecute street crimes. The other proscribes extortion and is often used to prosecute federal, state, and local public corruption. This is a brief overview of the Act and relevant court interpretations of its provisions.

Robbery

The Hobbs Act robbery proscription, described in outline form, condemns the following:

(1) Whoever

(2) in any way or degree

(3) (a) obstructs,

(b) delays, or

(c) affects

(4) (a) [interstate or foreign] commerce or

(b) the movement of any article or commodity in commerce,

(5)(a) by robbery, i.e .,

(i) [knowing and willful]

(ii) unlawful taking or obtaining of personal property

(iii) (A) from the person or

(B) in the presence of another,

(iv) against his will,

(v) by means of actual or threatened (A) force,

(B) or violence, or

(C) fear of injury,

immediate or future,

(vi)(A) to his person or property,

(B) or property in his custody or possession,

(C) or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining

or (b) attempts or

(c) conspires so to do, or

(d) 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.

Whoever

As a general rule, the word "whoever" includes not only individuals, but also "corporations, companies, associations, firms, partnerships, societies, and joint stock companies …." Thus, corporations, labor organizations, and other legal entities may be liable for Hobbs Act violations committed by the entity's officers, employees, or members within the scope of their authority and for the benefit of the legal entity.

In Any Manner … Obstructs … Commerce

The Hobbs Act defines "commerce" as (1) commerce into or out of a state; (2) commerce into, out of, or within the District of Columbia or any U.S. territory or possession; or (3) all other commerce over which the United States has jurisdiction." The Supreme Court has acknowledged that the Hobbs Act's jurisdictional language "manifests a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery, or physical violence."

Nevertheless, the Constitution confines Congress's legislative authority under the Commerce and Necessary and Proper Clauses to enactments regulating (1) the channels of commerce, (2) the instrumentalities of commerce, or (3) the activities that substantially affect commerce. "[A]ctivities within this third category—those that 'substantially affect' commerce—may be regulated so long as they substantially affect interstate commerce in the aggregate, even if their individual impact on interstate commerce is minimal."

In the case of the Hobbs Act where Congress sought to exercise its Commerce Clause powers to the fullest, the courts have held that the impact on commerce in an individual case may be minimal, even de minimis . Examples include the following:

robbery of a business that sells products that originate in another state; robbery that results in a business having to temporarily close down; robbery that depletes the assets available to a business; robbery of a drug dealer; in some instances, robbery of an individual who regularly engages in interstate commerce; in some instances, robbery of a substantial number of individual victims or of a substantial amount from a single individual; and in some instances, robbery of an individual targeted because of his relation to commerce.

Robbery

Section 1951(b)(1) defines the word "robbery" as follows:

[T]he unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.

The Hobbs Act's robbery definition is built upon the common law, and consequently conviction requires proof of the use, threat, or fear of violent physical force.

Knowingly

Although the statute has no explicit statement of mind (mens rea) requirement, a Hobbs Act robbery conviction likely requires evidence that the defendant committed robbery "knowingly." In most instances, the word "knowingly" means that the defendant consciously engaged in the conduct that the law proscribes. Congress's inclusion of the term "force or violence" within the Hobbs Act's statutory definition of robbery seems to dispense with the need for a more demanding mens rea standard. The government, however, need not prove that the defendant intended to obstruct or delay interstate commerce.

Aiding and Abetting, Attempt, and Conspiracy

The Hobbs Act explicitly condemns not just robbery, but also attempts to rob and conspiracies to rob. By operation of 18 U.S.C. § 2, it also condemns aiding and abetting a Hobbs Act robbery. All three carry the same penalties as the underlying substantive offense. "[A] person is liable under [18 U.S.C.] § 2 for aiding and abetting a crime if (and only if) he (1) takes an affirmative act in furtherance of that offense, (2) with the intent of facilitating the offense's commission." Ordinarily, the first requirement for aiding and abetting liability is that someone else commits a crime. The Hobbs Act, however, encompasses both robbery and attempted robbery. Thus, even though no robbery ever occurs, a defendant may be guilty of aiding and abetting a Hobbs Act violation if he assists someone else's attempt to commit a Hobbs Act robbery.

"To be convicted of an 'attempt,' a defendant must: (1) have the specific intent to engage in the criminal conduct with which he is charged with attempting; and (2) have taken a substantial step toward the commission of the offense that strongly corroborates his criminal intent." As a general rule, conviction does not require successful commiss ion of the attempted offense. "Factual impossibility and mistake of fact are not defenses to an attempt" to commit a Hobbs Act robbery as long as the defendant intended to commit the substantive offense and took a substantial step to the satisfaction of that intent acting on facts as he believed them to be. Nor is abandonment a defense once a substantial step has been taken.

"A Hobbs Act robbery conspiracy has three elements—(1) an agreement to commit Hobbs Act robbery between two or more persons, (2) the defendant's knowledge of the conspiratorial goal and (3) the defendant's voluntary participation in furthering the goal." The general federal conspiracy statute requires the government to prove that one of the conspirators committed some overt act in furtherance of the scheme. Hobbs Act robbery conspiracy has no such requirement. Nevertheless, a conspirator remains liable for crimes committed in furtherance of the scheme until the conspiratorial goal is achieved or the conspirator withdraws. One court has said that, "[f]or a defendant to show that he withdrew from the conspiracy, proof merely that he ceased conspiratorial activity is not enough." Moreover, "he must also show that he performed 'some act that affirmatively established that he disavowed his criminal association with the conspiracy,' ... either the making of a clean breast to the authorities, or communication of the abandonment in a manner reasonably calculated to reach co-conspirators."

Sentencing

Hobbs Act robbery offenses are punishable by imprisonment for not more than 20 years. In addition, a defendant whose violation involved a firearm may have committed a second, separate offense under 18 U.S.C. § 924(c). Section 924(c) outlaws the use of a firearm during and in furtherance of a crime of violence, and calls for imposition of one of a series of mandatory minimums based on the type of firearm, the circumstances of its use, and the defendant's earlier criminal conduct. Until recently, every federal appellate court to consider the issue had concluded that a Hobbs Act robbery constituted a crime of violence for purposes of section 924(c). The Supreme Court's April 2018 decision in Session s v. Dimaya initially raised questions as to the continued validity of that conclusion based on the definition in Dimaya of what constitutes a crime of violence. Section 924(c) defines the term "crime of violence" as a felony either (1) with an element of physical force (the "elements clause") or (2) that involves substantial risk of physical force (the "risk clause"). The Court in Dimaya held that a comparably worded risk clause in another statute, 18 U.S.C. 16(b), was unconstitutionally vague. Lower court cases after Dimaya have continued to recognize Hobbs Act robbery as a section 924(c) crime of violence either under the elements clause or under the theory that section 924(c)'s definition is subject to a different mode of analysis. Application of section 924(c) is subject to the same Sixth Amendment right to jury consideration and Fifth Amendment rights to grand jury indictment and due process (proof beyond a reasonable doubt) as any other federal felony.

Hobbs Act robbery also qualifies as a racketeering predicate offense and thus as a money laundering predicate offense as well. A RICO (racketeering influenced and corrupt organization) offense consists, among other things, of conducting the affairs of a commercial enterprise through the patterned commission of a series of predicate offenses, such as Hobbs Act robbery. RICO violations are punishable by imprisonment for not more than 20 years.

Hobbs Act robbery, by virtue of its status as a RICO predicate offenses, stands as a money laundering predicate offense under 18 U.S.C. §§ 1956, 1957. Section 1956, among other things, proscribes engaging in a financial transaction involving the proceeds of a predicate offense in order to launder the proceeds or to promote further predicate offenses. Section 1957 proscribes engaging in a monetary transaction using more than $10,000 of the proceedings of a predicate offense. Thus, laundering Hobbs Act robbery proceeds or using the proceeds to facilitate subsequent robberies constitutes a violation of section 1956. By the same token, depositing or engaging in any other monetary transaction involving more than $10,000 of Hobbs Act robbery proceeds constitutes a violation of section 1957. Violations of section 1956 carry a penalty of imprisonment for not more than 20 years. Violations of section 1957 carry a penalty of imprisonment for not more than 10 years.

Extortion

Hobbs Act extortion comes in two forms. One, like Hobbs Act robbery, may involve violence. The other is committed "under color of official right." The two constitute the alternative means by which Hobbs Act extortion is accomplished. Regardless of form, Hobbs Act extortion and Hobbs Act robbery share many of the same elements as is obvious from a display of its components:

(1)Whoever

(2) in any way or degree

(3) (a) obstructs,

(b) delays, or

(c) affects

(4) (a) commerce or

(b) the movement of any article or commodity in commerce,

(5)(a) by extortion, i.e .,

(i) [knowing and willful]

(ii) obtaining the property of another

(iii) with his consent

(iv) (A) induced by wrongful use of actual or threatened

(I) force, or

(II) violence, or

(III) fear of injury, or

(B) under color of official right

(b) attempts or

(c) conspires so to do, or

(d) 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

Whoever

Again, the term "whoever" in federal law refers to an individual as well as to legal entities such as corporations, labor organizations, and unincorporated associations. A legal entity may incur criminal liability for the conduct of its officers, employees, members, or agents, committed within the scope of their authority, for the benefit, at least in part, of the legal entity. Hobbs Act extortion does not encompass conduct committed entirely for the benefit of a governmental entity.

In Any Manner … Obstructs … Commerce

As noted earlier, the Supreme Court recognizes that, in the Hobbs Act, Congress "speaks in broad language, manifesting a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery, or physical violence." Thus, Hobbs Act extortion convictions, like Hobbs Act robbery convictions, demand no more than that the government prove some slight, minimal, or de minimis impact on interstate or foreign commerce. It is enough that in any individual case the defendant's conduct has a potential impact on commerce. For example, the government has met its burden when it shows that "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."

Obtaining the Property of Another

The obtaining-property element of Hobbs Act extortion consists of "'not only the deprivation but also the acquisition of property.' ...That is, it requires that the victim part with his property and that the extortionist gain possession of it." Moreover, "the property must therefore be transferrable"; it must be something of value that can be exercised, transferred, or sold. Otherwise, the property may be tangible or intangible, lawful or contraband.

Intent

The Hobbs Act has no express state-of-mind element. The defendant need not know or intend that his conduct delays or obstructs interstate or foreign commerce. Otherwise, the cases suggest that the intent required for Hobbs Act extortion depends on which of the two forms of extortion is at issue. Robbery-like extortion, extortion by means of force or fear, involves the wrongful use of force, violence, or fear to induce the victim to surrender his property. Bribery-like extortion, extortion under color of official right, involves the misconduct of public officials. Bribery-like extortion demands proof that a corrupt official received something to which he was not entitled, knowing that it was the quid pro quo for his performance of an official act. Extortion by means of wrongful force, violence, or fear, on the other hand, requires evidence that the defendant acted knowingly and willfully, and is marked by the prerequisite that the force, violence, or fear be wrongful.

Two Kinds of Extortion

Wrongful Use of Force, Violence, or Fear

The Supreme Court's 1973 labor violence case, United States v. Enmons , complicates the description of Hobbs Act robbery-like extortion. In Enmons , the Supreme Court explained that the word "wrongful" as used in the Hobbs Act extortion provision refers to the use of force, violence, or fear to obtain property to which the extortionist has no lawful claim. Thus, the Hobbs Act applies to personal payoffs or feather-bedding extorted by union officials, but it does not reach "the use of violence to achieve legitimate union objectives, such as higher wages in return for genuine services which the employer seeks."

The Court concluded that the use of force, violence, or fear in Enmons was not "wrongful" because the purpose for which violence was employed, legitimate labor objectives, was not wrongful. Outside of the labor context, however, the lower federal courts have held that the question of Hobbs Act coverage turns on whether the use or threatened use of force, violence, or fear, as a means of squeezing property from another, is "wrongful." Legitimate labor objectives aside, the U.S. Courts of Appeals for the First, Seventh, and Ninth Circuits have decided that in the case of Hobbs Act extortion the use or threatened use of force or violence is "inherently wrongful." As for the fear of economic harm, these courts have said that "the use of legitimate economic threats to procure property is 'wrongful' under the Hobbs Act, only if the defendant has no claim of right to that property."

Color of Official Right

Hobbs Act extortion under color of official right occurs when a "public official has obtained a payment to which he is not entitled, knowing that the payment was made in return for official acts." It is the "rough equivalent" of bribery. It envisions a corrupt this-for-that ( quid pro quo ). Nevertheless, "[t]he offense is completed at the time when the public official receives a payment in return for his agreement to perform specific official acts; fulfillment of the quid pro quo is not an element of the offense." Although the offense implies a coercive relationship, duress is not an element of the offense; and there is no requirement that a public official request or invite a corrupt payment.

The Hobbs Act does not define the term "official act," but the bribery statute does. In McDonnell v. United States , the Supreme Court turned to the bribery statute's definition of "official act" in its summary of what constitutes an official act for purposes of Hobbs Act extortion:

In sum, an "official act" is a decision or action on a "question, matter, cause, suit, proceeding or controversy." The "question, matter, cause, suit, proceeding or controversy" must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee. It must also be something specific and focused that is "pending" or "may by law be brought" before the public official. To qualify as an 'official act,' the public official must make a decision or take an action on that "question, matter, cause, suit, proceeding or controversy." Or agree to do so. That decision or action may include using his official position to exert pressure on another official to perform an "official act," or to advise another official, knowing or intending that such advice will form the basis for an "official act" by another official. Setting up a meeting, talking to another official, or organizing an event (or agreeing to do so)—without more—does not fit the definition of "official act."

Aiding and Abetting, Attempt, and Conspiracy

As is true of Hobbs Act robbery, section 1951 proscribes obstructing commerce by means of extortion, and attempting or conspiring to do so. Section 2 of the federal criminal code treats those who aid or abet the commission of a felony by another as if they had committed the underlying crime themselves. Here as elsewhere, "[t]he crime of attempt consists of two elements. First, the government must prove culpable intent. In other words, the defendant must have been acting with the kind of culpability otherwise required for the commission of the crime that he is charged with attempting. The second element is conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent." Factual impossibility is not a defense. Nor is abandonment after a substantial step has been taken.

The crime of conspiring to commit Hobbs Act extortion is a bit of an enigma. The word "extortion" connotes a predator and a victim. Yet, a predator and a "victim" may be guilty of conspiracy to commit Hobbs Act extortion under color of official right without the participation of anyone else. Conspiracy requires that all conspirators embrace a common purpose, the commission of the underlying offense. Hobbs Act extortion requires the victim's "consent" to the surrender of his property to the extortionist, but "the minimal 'consent' required to trigger § 1951 is insufficient to form a conspiratorial agreement." It helps to think of Hobbs Act extortion as akin to bribery. As the Supreme Court explained in United States v. O casio , ["t]he 'consent' required to pay a bribe does not necessarily create a conspiratorial agreement. In cases where the bribe payor is merely complying with an official demand, the payor lacks the mens rea necessary for a conspiracy." Imagine, for example, "that a health inspector demands a bribe from a restaurant owner, threatening to close down the restaurant if the owner does not pay. If the owner reluctantly pays the bribe in order to keep the business open, the owner has 'consented' to the inspector's demand, but this mere acquiescence in the demand does not form a conspiracy." A unity of intent is also a component of aiding or abetting another to commit Hobbs Act extortion, which is complete when someone else commits the underlying offense.

Sentencing

Hobbs Act extortion, attempts, and conspiracies are all punishable by imprisonment for not more than 20 years. Unlike Hobbs Act robbery, the government appears to have rarely prosecuted Hobbs Act extortion as a crime of violence under 18 U.S.C. § 924(c) (carrying or using a firearm in furtherance of crime of violence). Hobbs Act extortion, however, qualifies as a predicate offense under RICO, the money laundering statutes, and the Travel Act. A RICO violation, for example, occurs whenever an individual conducts the affairs of a commercial enterprise through the patterned commission of a series of predicate offenses such as Hobbs Act extortion. The proceeds from Hobbs Act extortion may constitute an element of promotional money laundering. Proceeds of more than $10,000 generated by Hobbs Act extortion may supply an element in the offense of monetary transaction money laundering. The Travel Act, among other things, makes it a federal crime to travel interstate, use the mail, or use any facility in interstate commerce to promote or distribute the proceeds of a bribery or extortion offense.