Public Corruption Meets Semantic Magic

Okay, so there’s a crime called extortion, and there’s also one called conspiracy to commit extortion, but here’s the question.

Can the government convict you of both extorting people and conspiring with those same people to extort themselves?

In a divided opinion this month, the U.S. Supreme Court said yes.

The case involved a police officer who participated in a kickback scheme with an auto-repair shop. When the officer would arrive at the scene of a car accident, he’d persuade people to tow their cars to the repair shop, and the owners would pay him $150 to $300 each time.

The scheme worked like a charm. It revived the repair shop’s fortunes, and it grew to enlist as many as sixty other officers in the police department.

It ended, however, when the officer, the owners, and nine other cops were indicted for extortion under a federal racketeering statute known as the Hobbs Act. The statute defines extortion to include the obtaining of property from another with his consent but under color of official right. In a prior case, the Supreme Court had described this type of extortion as roughly equivalent to taking a bribe, which seemed to fit the bill here. Everyone ended up pleading guilty except the officer.

But curiously, the government charged the officer with both extortion and conspiring with the shop owners to commit extortion, even though the owners were the ones paying up. It’s unclear why the government decided to pursue this theory of conspiracy rather than one in which the officer conspired with other officers to take bribes. At trial, the officer argued that he couldn’t be guilty of a conspiracy to commit extortion unless he conspired against someone outside the alleged conspiracy. He asked for a jury instruction to that effect, but the court denied his motion and refused his instruction. A jury convicted him on all counts.

On appeal, the officer didn’t challenge his conviction for extortion, but he argued that he couldn’t be guilty of the conspiracy count because the crime didn’t involve taking property from anyone outside the conspiracy itself.

But a razor-thin majority of the Court said yes, he could, thus giving federal prosecutors another way to charge bribery cases involving state or local officials.