Opposition Brief — Cedric Cromwell, Petitioner v. United States

No. 24-6364

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

CEDRIC CROMWELL, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

D. JOHN SAUER

Solicitor General

Counsel of Record

MATTHEW R. GALEOTTI

W. CONNOR WINN

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTION PRESENTED

Whether bribery of the elected chairman of the governing

council of an Indian tribe, who was also president of the governing

board of the tribe’s gaming authority, is exempt from the Hobbs

Act’s

criminalization

of

extortion

right,” 18 U.S.C. 1951(a) and (b)(2).

(I)

“under

color

of

official

ADDITIONAL RELATED PROCEEDINGS

United States District Court (D. Mass.):

United States v. Cromwell, 20-cr-10271 (Jan. 31, 2023)

United States Court of Appeals (1st Cir.):

United States v. Cromwell, 23-1116 (Sept. 27, 2024)

(II)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 24-6364

CEDRIC CROMWELL, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINION BELOW

The opinion of the court of appeals (Pet. App. 2a-50a) is

reported at 118 F.4th 424.

JURISDICTION

The judgment of the court of appeals was entered on September

27, 2024.

A petition for rehearing was denied on October 31, 2024

(Pet. App. 57a).

The petition for a writ of certiorari was filed

on January 17, 2025.

The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

2

STATEMENT

Following a jury trial in the United States District Court

for the District of Massachusetts, petitioner was convicted on two

counts of federal program bribery, in violation of 18 U.S.C.

666(a)(1)(B); one count of conspiring to commit Hobbs Act extortion

under color of official right, in violation of 18 U.S.C. 1951;

and three counts of Hobbs Act extortion under color of official

right, in violation of 18 U.S.C. 1951.

Judgment 1.

The district

court granted petitioner’s posttrial motion for a judgment of

acquittal

on

the

Hobbs

Act

counts

but

denied

a

acquittal on the federal program bribery counts.

The

court

of

appeals

reversed

the

federal

judgment

of

Pet. App. 7a.

program

bribery

convictions, reinstated the Hobbs Act counts, and remanded the

case for further proceedings.

1.

In

2007,

the

Id. at 2a-50a.

United

the

Mashpee

Wampanoag as a Native American tribe in Massachusetts.

See 72

Fed. Reg. 8007 (Feb. 22, 2007).

States

recognized

Petitioner was then repeatedly

elected chairman of the governing tribal council.

359, 500-501.

C.A. App. 358-

Petitioner also became the president of the tribe’s

gaming authority and furthered its efforts to build a casino.

at 1438-1454.

Id.

The gaming authority aimed to construct the casino

on land that the federal government had placed into trust for the

tribe.

Id. at 286-287, 308-310, 359-361.

In 2014, petitioner persuaded the gaming authority to enter

into

a

consulting

agreement

with

Robinson

Green

Beretta

3

Corporation (RGBC), a Rhode Island architecture and design firm

run by petitioner’s codefendant.

C.A. App. 264, 281-282, 289-290,

338-341, 374-377, 699-702, 715-716.

The agreement was worth

millions of dollars in fees but could be canceled by the gaming

authority at will.

Id. at 716-717, 1525, 1557-1559.

And once

RGBC started submitting invoices, petitioner began asking the

company for large checks.

Id. at 780-785, 797-801, 806, 962-967,

1400-1418.

Petitioner instructed RBGC to issue those checks under a

pseudonym and to make them out either to a shell company under

petitioner’s

control

or

to

a

company

belonging

to

one

of

petitioner’s non-Indian associates (who would route the money to

petitioner).

C.A. App. 555-557, 584-594, 779-785, 798-801, 958-

967, 1400-1418.

Petitioner then deposited the funds into various

accounts and used the money for personal expenses.

965, 987, 993-996.

Id. at 960-

He also demanded and received from RGBC an

exercise bike and a weekend stay at a Boston hotel.

Id. at 820-

827, 1581-1598; see Pet. App. 5a-6a.

2.

A grand jury in the District of Massachusetts indicted

petitioner on one count of conspiring to commit federal program

bribery, in violation of 18 U.S.C. 371; two counts of federal

program bribery, in violation of 18 U.S.C. 666(a)(1)(b); one count

of conspiring to commit Hobbs Act extortion under color of official

right, in violation of 18 U.S.C. 1951; and four counts of Hobbs

Act extortion under color of official right, in violation of 18

4

U.S.C. 1951.

Pet. App. 5a-6a.

A jury found petitioner guilty on

the federal program bribery counts, the Hobbs Act conspiracy count,

and three of the Hobbs Act extortion counts.

Id. at 6a.

Petitioner moved for a judgment of acquittal.

7a.

Pet. App. 6a-

He challenged his Hobbs Act convictions on the theory that

“the evidence failed to establish that he was a public official”

as required to support a conviction for Hobbs Act extortion.

at 7a (brackets and emphasis omitted).

Id.

Petitioner also challenged

his federal program bribery convictions.

D. Ct. Doc. 253, at 5-9

(June 3, 2022).

The district court declined to acquit petitioner on the

federal program bribery counts, but entered a judgment of acquittal

on the Hobbs Act extortion and conspiracy counts.

2150.

C.A. App. 2029-

In acquitting petitioner on the Hobbs Act counts, the court

did not adopt petitioner’s arguments; instead, it took the view

that tribal sovereign immunity precluded Hobbs Act liability.

Id.

at 2036-2037.

3.

The

court

of

appeals

set

aside

the

Section

convictions, but reinstated the Hobbs Act convictions.

666

Pet. App.

2a-50a. And it remanded the case to the district court for further

proceedings.

Id. at 50a.

On the Hobbs Act counts, the court of appeals rejected the

district court’s immunity-based rationale for acquittal -- which

even petitioner did not defend -- by observing that “the United

States [is] a superior sovereign from whose suits the tribes enjoy

5

no sovereign immunity.”

Pet. App. 38a (citation omitted).

The

court of appeals also rejected petitioner’s alternative rationale

that a tribal officer is not a “public official” who would be

covered by the Hobbs Act.

Id. at 39a-42a.

The court of appeals noted that the Hobbs Act prescribes

punishment for “[w]hoever in any way or degree obstructs, delays,

or affects commerce

. . .

color of official right.”

by

. . .

extortion

. . .

under

Pet. App. 39a (quoting 18 U.S.C. 1951).

The court observed that under this Court’s precedent, “extortion

‘under color of official right’” is “an ‘offense committed by a

public official.’”

Ibid. (quoting Evans v. United States, 504

U.S. 255, 260, 261-264 (1992)).

extortion

prohibition

official.”

Ibid.

And the court explained that the

accordingly

“applies

to

any

public

The court also observed that the statute was

did not contain “ambiguity” that could justify resort to the rule

of lenity.

Id. at 40a.

ARGUMENT

Rather than defend the district court’s reasoning, petitioner

renews (Pet. 8-15) his contention that the Hobbs Act’s prohibition

on extortion under color of official right does not apply to Indian

tribal officials.

The court of appeals correctly rejected that

contention, and its decision does not conflict with any decision

of this Court or of another court of appeals.

This Court has

denied petitions for writs of certiorari presenting questions

about

whether

generally

applicable

federal

criminal

statutes

6

validly apply to members of an Indian tribe.

See, e.g., Mitchell

v. United States, 553 U.S. 1094 (2008) (No. 07-9351); Wadena v.

United States, 526 U.S. 1050 (1999) (No. 98-7027).

It should

follow the same course here.

1.

This Court has made clear that “general Acts of Congress

apply to Indians as well as to all others in the absence of a clear

expression to the contrary.”

Indian

Nation,

government

may

362

U.S.

prosecute

Federal Power Comm’n v. Tuscarora

99,

120

Native

(1960).

Americans

Accordingly,

for

federal

the

crimes

“[for] which there is federal jurisdiction regardless of whether

an Indian is involved.”

330 n.30 (1978).

generally

United States v. Wheeler, 435 U.S. 313,

And the courts of appeals have recognized that

applicable

federal

criminal

laws

apply

to

Indians,

regardless of whether the crime occurs in Indian country.

See,

e.g., United States v. Mitchell, 502 F.3d 931, 947-948 (9th Cir.

2007)

(carjacking),

cert.

denied,

553

U.S.

1094

(2008);

United States v. Brisk, 171 F.3d 514, 520-522 (7th Cir.) (drug

offenses), cert. denied, 528 U.S. 860 (1999); United States v.

Wadena,

152

F.3d

831,

842

(8th

Cir.

1998)

(bribery,

money

laundering, mail fraud, and conspiracy), cert. denied, 526 U.S.

1050 (1999); United States v. Boots, 80 F.3d 580, 593 (1st Cir.)

(mail and wire fraud), cert. denied, 519 U.S. 905 (1996); see also

1 Cohen’s Handbook of Federal Indian Law § 11.02[4][a] (2024).

No sound reason exists to exclude tribal officials from the

generally applicable prohibitions of the Hobbs Act.

This Court

7

has recognized that the statute was designed “to prohibit robbery

and extortion perpetrated by anyone.”

United States v. Culbert,

435

plain

U.S.

371,

377

(1978).

And

its

terms

accordingly

prescribe punishment for “[w]hoever 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.”

18 U.S.C. 1951(a) (emphasis added).

When Congress adopted that language, see Act of July 3, 1946,

ch. 537, 60 Stat. 420, the term “whoever” meant “[w]hatever person

or persons,” 12 Oxford English Dictionary 89 (1st ed. 1933); see

1 U.S.C. 1 (1948) (defining “whoever” to include “individuals” and

corporate bodies).*

statutory

text

Thus, as the court of appeals recognized, the

“exudes

comprehensiveness”

“unequivocally” covers tribal officials.

and

“clearly”

and

Pet. App. 42a (quoting

Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin,

599 U.S. 382, 388, 399 (2023)).

Nor

does

the

definition

of

“‘extortion”

to

encompass

extortion “under color of official right,” 18 U.S.C. 1951(b)(2),

differentiate tribal officials from federal, state, or local ones.

Had Congress intended to exclude tribal officials, “it easily could

have drafted language to that effect.”

Gallardo v. Marstiller,

596 U.S. 420, 429 (2022) (citation omitted).

Indeed, before

As originally enacted in the Anti-Racketeering Act of

1934, the statute similarly forbade “[a]ny person” to engage in

extortion under “color of official right” if it affected commerce

over which Congress had jurisdiction.

Ch. 579, §§ 1, 2(b), 48

Stat. 979-980.

*

8

Congress enacted the Hobbs Act, it had enacted statutes that

focused on persons acting under color of state law, e.g., 42 U.S.C.

1983, or those acting under federal law, e.g., Judicial Code, ch.

231, § 33, 36 Stat. 1097 (1911) (federal-officer removal).

But no

such limiting language appears in the Hobbs Act.

Indeed,

the

Hobbs

Act’s

definition

of

“commerce”

to

“encompass[] ‘all . . . commerce over which the United States has

jurisdiction,’” Taylor v. United States, 579 U.S. 301, 305 (2016)

(quoting 18 U.S.C. 1951(b)(3)), underscores its coverage of Indian

tribes.

That

“unmistakably

broad”

language,

ibid.,

reflects

Congress’s intent to “use all the constitutional power [it] has”

to prohibit extortion, Culbert, 435 U.S. at 373 (citation omitted).

And

that

constitutional

regulate commerce with

power

* * *

includes

the

Indian Tribes.”

authority

“[t]o

U.S. Const. Art.

I, § 8, Cl. 3.

Specifically, the Constitution vests Congress with “virtually

all authority over Indian commerce and Indian tribes,” Haaland v.

Brackeen, 599 U.S. 255, 273 (2023) (citation omitted), and the

“power to legislate

* * *

across a wide range of areas, including

criminal law,” id. at 275.

When exercising this power, Congress

may regulate both “Indian affairs” and “individuals,” id. at 278

(citations omitted), by prohibiting tribal officials from using

their position to extort others in ways affecting interstate or

Indian commerce.

9

2.

Petitioner’s contrary arguments are unsound.

Petitioner’s reliance (Pet. 11-12) on the Model Penal Code

and certain federal bribery laws is misplaced.

The Model Penal

Code expressly limits the definition of a “‘public servant,’” for

purposes of the model offense of “Bribery in Official and Political

Matters,” to an “officer or employee of” a state “government.”

Model Penal Code § 240.0(7) (1980); see id. § 240.0(2) (defining

“‘government’”

as

“any

branch,

subdivision

or

agency

government of the State or any locality within it”).

of

the

The federal

bribery statute explicitly cabins the definition of a “public

official”

to

federal

officials

authority.

18 U.S.C. 201(a)(1).

or

those

exercising

federal

And the federal programs bribery

statute, 18 U.S.C. 666(a), identifies non-federal officials -that is, any “agent of

* * *

government,”

because

ibid.

--

a State, local, or Indian tribal

Congress

intended

to

“extend”

Section 201’s coverage “to bribes offered to state and local

officials employed by agencies receiving federal funds,” Salinas

v. United States, 522 U.S. 52, 58 (1997).

None of those statutes

shares the Hobbs Act’s “all-encompassing scope,” Coughlin, 599

U.S. at 389, which covers “government officials generally,” Pet.

App. 41a-42a.

Petitioner’s reference (Pet. 9-11) to common law is similarly

misconceived.

Petitioner asserts (ibid.) that he did not commit

Hobbs Act extortion under color of official right because that

offense tracks common-law extortion and, at common law, tribal

10

leaders were not “public officials.”

But while the common law may

inform which actions might qualify as extortion under the Hobbs

Act, see Evans v. United States, 504 U.S. 255, 264 (1992), it does

not atextually limit the set of actors to whom the statute’s plain

language applies.

In any event, the particular sources of common

law to which petitioner looks are inherently unilluminating.

The

common law of England -- where “there was only one sovereign,”

Central Va. Cmty. Coll. v. Katz, 546 U.S. 356, 366 (2006), and no

tribes -- has no bearing on the issue here.

Nor does the common

law of States, which lack the federal government’s “plenary and

exclusive” federal jurisdiction over tribes.

See Brackeen, 599

U.S. at 272 (citation omitted).

Petitioner also errs in suggesting (Pet. 13) that Indians

“are not part of the polity of the United States.”

Congress

granted American citizenship to all native-born Indians.

June 3, 1924, ch. 233, 43 Stat. 253.

Act of

Those who belong to a

federally recognized tribe remain subject to tribal criminal laws,

United States v. Lara, 541 U.S. 193, 198 (2004), as well as the

federal laws that apply to everyone in the United States, Tuscarora

Indian Nation, 362 U.S. at 120.

“inherent

sovereign

authority,”

Tribes’ ability to exercise

Michigan

v.

Bay

Mills

Indian

Cmty., 572 U.S. 782, 788 (2014) (citation omitted), does not

meaningfully differentiate them from States, whose officials -both

employed

directly

by

the

State

and

less

directly

by

municipalities -- are indisputably subject to the Hobbs Act.

If

11

anything, tribes’ unique status as “domestic dependent nations,”

ibid. (citation omitted), should render tribal officials more

appropriate subjects of federal regulation than their state and

municipal counterparts.

Finally, petitioner errs in relying on (Pet. 14) the rule of

lenity.

from

That principle “applies only if ‘after seizing everything

which

aid

can

be

derived,’

there

remains

‘grievous

ambiguity,’” Pugin v. Garland, 599 U.S. 600, 610 (2023) (citation

omitted), “such that the Court must simply guess as to what

Congress intended,” United States v. Castleman, 572 U.S. 157, 173

(2014) (citation omitted). No such grievous ambiguity exists here.

3.

At all events, petitioner has identified no case of this

Court or of any court of appeals adopting his view or otherwise

conflicting with the decision below.

He accordingly presents no

sound basis for this Court’s review.

See Sup. Ct. R. 10.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

D. JOHN SAUER

Solicitor General

MATTHEW R. GALEOTTI

W. CONNOR WINN

Attorneys

APRIL 2025