Sekhar v. United States

CRIMINAL LAW — Extortion

New Jersey Law Journal

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Sekhar v. United States, No. 12-357; U.S. Supreme Court; opinion by Scalia, J.; concurrence by Alito, J.; decided June 26, 2013. On certiorari to the U.S. Court of Appeals for the Second Circuit.

Investments for the employee pension fund of the state of New York and its local governments are chosen by the fund's sole trustee, the state comptroller. After the comptroller's general counsel recommended against investing in a fund managed by FA Technology Ventures, the general counsel received anonymous emails demanding that he recommend the investment and threatening, if he did not, to disclose information about the general counsel's alleged affair to his wife, government officials and the media. Some of the emails were traced to the home computer of petitioner Sekhar, a managing partner of FA Technology Ventures. Petitioner was convicted of attempted extortion, in violation of the Hobbs Act, 18 U.S.C. § 1951(a), which defines "extortion" to mean "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," § 1951(b)(2). The jury specified that the property petitioner attempted to extort was the general counsel's recommendation to approve the investment. The Second Circuit affirmed.

Held: Attempting to compel a person to recommend that his employer approve an investment does not constitute "the obtaining of property from another" under the Hobbs Act. Pp. 3-9.

(a) Absent other indication, "Congress intends to incorporate the well-settled meaning of the common-law terms it uses." Neder v. United States, 527 U.S. 1. As far as is known, no case predating the Hobbs Act — English, federal, or state — ever identified conduct such as that charged here as extortionate. Extortion required the obtaining of items of value, typically cash, from the victim. The act's text confirms that obtaining property requires "not only the deprivation but also the acquisition of property." Scheidler v. National Organization for Women Inc., 537 U.S. 393. The property extorted must therefore be transferable — that is, capable of passing from one person to another, a defining feature lacking in the alleged property here. The genesis of the Hobbs Act reinforces that conclusion. Congress borrowed nearly verbatim the definition of extortion from a 1909 New York statute but did not copy the coercion provision of that statute. And in 1946, the time of the borrowing, New York courts had consistently held that the sort of interference with rights that occurred here was coercion. Finally, this court's own precedent demands reversal of petitioner's convictions. See id. at 404-05. Pp. 3-8.

(b) The government's defense of the theory of conviction is unpersuasive. No fluent speaker of English would say that "petitioner obtained and exercised the general counsel's right to make a recommendation," any more than he would say that a person "obtained and exercised another's right to free speech." He would say that "petitioner forced the general counsel to make a particular recommendation," just as he would say that a person "forced another to make a statement." Adopting the government's theory here would not only make nonsense of words; it would collapse the longstanding distinction between extortion and coercion and ignore Congress's choice to penalize one but not the other. See Scheidler, 537 U.S. at 409. Pp. 8-9.

683 F.3d 436, reversed.

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