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An aggressive prosecutorial interpretation of a federal criminal statute to reach conduct readily reachable under state law crashed against an immovable object in U.S. v. Brock, No. 05-6621-23/6645, 2007 WL 2492375 (6th Cir. Sept. 6, 2007). The brothers Michael and Jerry Brock, who owned a bail bond company, allegedly bribed a Tennessee court clerk to remove from the court’s calendar bond-forfeiture hearings in cases in which the company’s clients had failed to appear. Allegedly, by removing the cases, the clerk saved the company from forfeiture of the bonds for those clients. The U.S. government indicted the Brocks for conspiracy to bribe a public official, in violation of the Hobbs Act, 18 U.S.C. 1951. The indictment also included mail fraud counts, but they were dismissed. A jury found the Brocks guilty of the conspiracy, and each was sentenced to prison for 21 months. Under the Hobbs Act, a crime is committed by “[w]hoever . . . affects commerce . . . by robbery or extortion or . . . conspires so to do.” 18 U.S.C. 1951(a) (2000). The statute 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.” 18 U.S.C. 1951(b)(2) (2000). The prosecution’s theory was that the Brocks conspired with the clerk to extort money from themselves. The 6th U.S. Circuit Court of Appeals held that that theory fails to state a crime under the Hobbs Act. Squaring with the statutory definition of extortion The court reasoned that the theory fails to square with the statutory definition of “extortion,” which refers to “obtaining of property from another, with his consent.” The term “another” must refer to someone other than the perpetrator(s), i.e., here, someone outside the conspiracy, and the consent referred to must also be from that other person. On the facts alleged, there was no other person from whom the Brocks and the clerk conspired to obtain any property or consent. “How do (or why would) people conspire to obtain their own consent?,” the court asked. 2007 WL 2492375 at *4. From the definition of “extortion,” one might have thought that the person from whom the recipient obtains money or other property is a victim, and so cannot be a perpetrator, and that where, as the indictment here alleged, the payers initiated the bribes, there was no extortion. In Evans v. U.S., 504 U.S. 255 (1992), however, the U.S. Supreme Court, applying its understanding of the common law offense of “extortion” under color of official right, held that a public official’s mere receipt of a bribe, without any prior demand, threat or other inducement, constitutes extortion “under color of official right” for purposes of the statute. If the recipient of a bribe can thus be reached under section 1951 without any demand, threat or other inducement, isn’t it a small step to say that the giver of the bribe can also be reached, as a co-conspirator with the recipient? No, said the 6th Circuit. Treating bribers as co-conspirators under Section 1951 would convert that statute into a general prohibition of bribery. Congress directly prohibited bribery in 18 U.S.C. 201(b)(1), but only of federal officials. Section 1951, which reaches state officials and private recipients of bribes where interstate commerce is affected, includes no such prohibition, but, plainly, is limited to robbery and extortion � offenses committed by the recipient, not the payer, of money or other property. Had Congress intended Section 1951 to prohibit also the giving of a bribe, it could have drafted it on the model of Section 201(b)(1). Arguably, however, Congress could rely on 18 U.S.C. 2 and 371 to reach confederates of the recipient without defining the substantive offense so as to reach them. Moreover, the Supreme Court has held that the Hobbs Act “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.” Stirone v. U.S., 361 U.S. 212, 215 (1960). If the issue is framed as whether the Brocks were victims of the clerk or co-perpetrators, two Supreme Court decisions under the Mann Act, ch. 395, 36 Stat. 825 (1910) (codified as amended at 18 U.S.C. 2421-2424 (2000)), provide the prosecution an arguable analogy. The original act prohibited the transporting of a woman or girl in interstate commerce for prostitution “or any other immoral practice.” It plainly was intended to protect women and girls. In U.S. v. Holte, 236 U.S. 140 (1915) (Holmes, J.), however, the court, on review of a demurrer to a conspiracy indictment of a woman transported in violation of that act, held that such a prosecution is theoretically possible. The court hypothesized a case in which “a professional prostitute, as well able to look out for herself as was the man, should suggest and carry out a journey within the act of 1910 in the hope of blackmailing the man, and should buy the railroad tickets, or should pay the fare from Jersey City to New York.” 236 U.S. at 145. In Gebardi v. U.S., 287 U.S. 112 (1932), the court held that, where the woman did not procure her transportation but merely assented to it, she could not be liable as a co-conspirator, aider or abettor. The 6th Circuit rejected the Mann Act analogy on the ground that the texts of the Mann Act and the Hobbs Act are significantly different. 2007 WL 2492375 at *7. The court did not identify the relevant difference, but presumably it was referring at least to the presence of the word “another” in the Hobbs Act and its absence from the Mann Act. Thus, in Brock, the issue was not whether the Brocks were victims or perpetrators, but whether property was obtained “from another,” i.e., from someone other than a perpetrator � an issue with no Mann Act counterpart. Court distinguishes three Hobbs Act cases The 6th Circuit distinguished three Hobbs Act cases from other appeals courts in which the giver of a bribe to a public official was convicted of the substantive offense and/or conspiracy to commit it, and/or aiding and abetting it: U.S. v. Cornier-Ortiz, 361 F.3d 29 (1st Cir. 2004); U.S. v. Spitler, 800 F.2d 1267 (4th Cir. 1986); U.S. v. Wright, 797 F.2d 245 (5th Cir. 1986). In those cases, however, the ultimate source of the money for the bribe was a third-party entity, not the individual defendant. Therefore, the money was extorted “from another.” In U.S. v. Nelson, 486 F. Supp. 464, 486-92 (W.D. Mich. 1980), the alleged initiator and payer of a bribe from his own pocket to a public official was charged in Count 2 of the indictment as an aider and abetter. In ruling on a motion to dismiss the indictment, the court held that the payer could be so charged in a count alleging payment under color of official right, and, applying the analogy of Holte and Gebardi, deferred ruling on the motion as to Count 2 until the government presented a bill of particulars. Although arguably contrary to Brock, Nelson is only a district court opinion and, as the Brock court noted, it did not address the significance of the statutory words “from another.” The 6th Circuit also reasoned that any residual ambiguity as to whether the conspiracy aspect of Section 1951 reaches the givers of bribes should be resolved, under the rule of lenity, against the more expansive interpretation. Invoking the ‘basic notions of federalism’ The court supported its rejection of the prosecution’s interpretation by invoking “[b]asic notions of federalism.” 2007 WL 2492375, at *5. Bribery of a state official can be prosecuted under state law; and, indeed, Tennessee has indicted the Brocks for precisely that. Acceptance of the prosecution’s theory would have extended federal prosecutions even farther than they have already gone into offenses that relate to state and local government, and are subject to state criminal statutes. Concern about the possibly undue reach of federal criminal statutes into what are essentially state or local matters has been expressed in, e.g., Jones v. U.S., 529 U.S. 848 (2000); U.S. v. Bass, 404 U.S. 336, 349 (1971); and Rewis v. U.S., 401 U.S. 808, 812 (1971), which require a clear statement from Congress to support application of a criminal statute in a manner that changes the federal-state balance in prosecution of crimes. In a Hobbs Act prosecution, U.S. v. Culbert, 435 U.S. 371, 379 (1978), however, the Supreme Court commented: “With regard to the concern about disturbing the federal-state balance . . . there is no question that Congress intended to define as a federal crime conduct that it knew was punishable under state law.” Nevertheless, the Brock court applied the clear-statement requirement to Section 1951, and found it not satisfied. Stirone and Culbert are distinguishable from Brock. Stirone addressed whether the indictment contained one of the theories of effect on interstate commerce on which the conviction may have been based. Culbert addressed whether the Hobbs Act requires proof of “racketeering,” a term not included in the statute. The interpretive mood of those decisions, however, may not be so easily distinguishable. Richard M. Cooper is a partner at Williams & Connolly in Washington. He can be reached via e-mail at [email protected].

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