Respondents Brief — Ocasio v. United States, 135 S. Ct. 1491 (2015) (No. 14-361)
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No. 14-361
In the Supreme Court of the United States
SAMUEL OCASIO, PETITIONER
v.
UNITED STATES OF AMERICA
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRIEF FOR THE UNITED STATES
DONALD B. VERRILLI, JR.
Solicitor General
Counsel of Record
LESLIE R. CALDWELL
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
ALLON KEDEM
Assistant to the Solicitor
General
STEPHAN E. OESTREICHER, JR.
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdo}j.gov
(202) 514-2217
QUESTION PRESENTED
The Hobbs Act defines extortion to include “the
obtaining of property from another, with his consent,
* * * under color of official right.” 18 U.S.C.
1951(b)(2). The question presented is:
Whether a conviction under the general federal
conspiracy statute, 18 U.S.C. 371, may be based on
Hobbs Act extortion where a public-official defendant
has formed an agreement to obtain property from
someone within the conspiracy.
(I)
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TABLE OF CONTENTS
Page
I iieccctrntncerncninttnennensiemmnetsnnnemmnmepmannin 1
EER OL OE ROS l
Statutory provisions involved ..............sssssesessseseseeneeseereesessenseenes 1
aaa a lial 2
TTI cssccrsentiieneintennttiinaitsnnntenahiennendaneantebveinennten 11
Argument:
A public official who agrees to obtain property from
a co-conspirator in exchange for public acts may be
prosecuted for conspiracy to commit extortion.................... 14
A. Conspiracy to violate the Hobbs Act requires
only an agreement for that unlawful purpose
and an overt ect in furtherance of the agreement ......15
B. Petitioner’s textual argument is premised on a
mistaken assumption: that all conspirators must
satisfy each element of the substantive offense........... 20
C. Petitioner’s other arguments for limiting
conspiracy liability are unpersuaSive.....................000++ 29
1. Obtaining property with another’s “consent”
is not equivalent to forming a conspiratorial
QETOUTIGI, cccceccssssscesecssescesossvesnsnsecneqcssnscsecesteecceccensocses 30
2. An “active participation” requirement is
consistent with conspiracy principles .................... 33
3. The government’s interpretation would not
impose liability on extortion “victims”................... 39
4. “Principles of federalism and lenity” do not
justify petitioner’s approach ................csessecsseeeeees 42
D. Petitioner also conspired with other BPD officers,
not only with Moreno and Mejia ................sscessseseeeeees 43
I sidsiniiteptianineranncatnmenimnceienmanmnenianianmnuetied 45
Appendix — Statutory provisions ..............ccsceseccsseseesereneeeees la
(IIT)
IV
TABLE OF AUTHORITIES
Cases: Page
Abuelhawa v. United States, 556 U.S. 816 (2009)............... 37
Braverman v. United States, 317 U.S. 49 (1942) ................ 15
Callanan v. United States, 364 U.S. 587 (1961)......16, 19, 31
Direct Sales Co. v. United States, 319 U.S. 703 (1943).......37
Evans v. United States, 504 U.S. 255 (1992) .............. passim
Gebardi v. United States, 287 U.S. 112
ITT iainidesietehiesentdecsnsidinaushddeapadeniieriniteiartaeeaniemepmmnans passim
lannelli v. United States, 420 U.S. 770 (1975) .............. 31, 32
Johnson v. United States, No. 13-7120 (June 26,
EARS eo Oe eae cn 38
King v. Southerton, 102 Eng. Rep. 1235 (1805) ............0000+ 30
Krulewitch v. United States, 336 U.S. 440 (1949)......... 16, 19
Muscarello v. United States, 524 U.S. 125 (1998)......... 42, 43
Nash v. United States, 229 U.S. 373 (1913) .............-cesseeeees 38
People v. Kay, 105 N.Y.S.2d 687 (N.Y. App. Div.
STITT viestrrnscieseteeanteaninieinensiiaieatsaniatinmmanieninaeitaigeiunetienemsngmiend 25
Pinkerton v. United States, 328 U.S. 640 (1946)........... 16, 32
Salinas v. United States, 522 U.S. 52
re cenecenesennesneinnennennnnstinnsmennisiateongumneananeneneenenmnane passim
Scheidler v. National Org. for Women, Inc.,
gE cee 26
Sekhar v. United States, 133 S. Ct. 2720 (2013)................. 26
Skilling v. United States, 561 U.S. 358 (2010).............000-000: 45
Smith v. United States, 508 U.S. 223 (1998).............cccseseee 42
Smith v. United States, 133 S. Ct. 714 (2013).............cccce00 32
Stephens, In re, 208 N.Y.S. 500 (N.Y. App. Div. 1924).......25
Sullivan v. Hudson, 490 U.S. 877 (1989)..........ccccccccceseseenees 26
United States v. Brock, 501 F.3d 762 (6th Cir.
Cases—Continued: Page
United States v. Coppola, 671 F.3d 220 (2d Cir. 2012),
cert. denied, 133 S. Ct. 843 (2013) ..........ec.sssesesnssnsesneneesess 31
United States v. Cornier-Ortiz, 361 F.3d 29 (1st Cir.
SN erntedieersnennseinsnnmmtonannaeaiimemmnmnemcnenests 36
United States v. Hirsch, 100 U.S. 33 (1879)..............c0000000+ 32
United States v. Holte, 236 U.S. 140 (1915)................ passim
United States v. Johnson, 337 F.2d 180 (4th Cir.
1964), cert. denied, 379 U.S. 988 (1965), 385 U.S.
846, and 385 U.S. 889 (1966) ............ccscecececessseseeeeenceterneeeees 36
United States v. Kissel, 218 U.S. 601 (1910)................0 15, 33
United States v. Marchan, 32 F. Supp. 3d 753
ye 36
United States v. Miller, 471 U.S. 130 (1985) 2.0... 44
United States v. Nelson, 486 F. Supp. 464 (W.D.
ans TnTITETTAsibcsitpiianeheniicentieenntinicaeaiaciteniainaheaiasienaamenemnensien 36
United States v. Rabinowich, 238 U.S. 78 (1915) ............... 23
United States v. Spitler, 800 F.2d 1267 (4th Cir.
SE inicrisentinncneniasesenteenniantinnininiteniummninmatineeemneten 28, 35
United States v. Tillem, 906 F.2d 814 (2d Cir.
1990) " eneaitiesiebiha aris ieiataniaitting 37
United States v. Townsend, 924 F.2d 1385 (7th Cir.
FE tiercesseemnnsmnnmeimnemaemenmniamperemmnenemmen 16
United States v. Williams, 553 U.S. 285 (2008) ...........c.0-0 38
United States v. Wright, 797 F.2d 245 (5th Cir. 1986),
cert. denied, 481 U.S. 1013 (1987)............csssssssssesssseeseseesees 36
United States v. Zayyad, 741 F.3d 452 (4th Cir. 2014)......29
United States v. Zeuli, 725 F.2d 813 (1st Cir. 1984)........... 36
United States v. Zhou, 428 F.3d 361 (2d Cir. 2005)............. 31
Wilkie v. Robbins, 551 U.S. 587 (2007) ............cccececereseees 15, 40
Statutes: Page
Hobbs Act, 18 U.S.C. 1951 et seq.:
AE 6, 20, 24, 2a
al passim, 2a
| EEN —- | |
el Be ciiiciccciemnesicnticncrtinaicmastinnteetiin passim, 2a
Mann Act, ch. 396, 36 Stat. 825.............c..0cecerscssesesesscsscecesesees 22
EE TEES ETE 30
cali 30
EE eee aR: 30
TT iccindiscenntnaniniitinpinnasticanctinimenial 30
| EEE EEC ReneS are Te passim, la
UIT iiiiicacaeeteaeiccilaeiabenitapiiininaiaalipaeaidesaseaiiidalial 29
a UIT nisi aineesicemeesaeniatpanuninietdenanatiansenisieidiniitinieniameueniiinl 29
TESTI isideenicneniniiiessaninannneminnatetintaeaiinennneiidl 30
SII asinine tneesiineanineeieiesieriannieatiaiadaeadl 28
I incinerated tates iainnatiemiinananiaial 29
ii saat es hleminiaecien tliat 29
aici in cerita eteieieeaneeet 29
Commissioners of the Code, The Penal Code of the
State of New York (1865):
Nailer aceasta lela ial 30
a a a 31
I adicesuesiediasiddanetidirsaleeieineseteeleaiasiginibiigienioendaiiaansianiatiaatel 31
N.Y. Penal Law (1881):
SUIT “caepessdirceseitiietiubtieitineieeaiitsehaichbieinacbabaelival 30
VII
Miscellaneous: Page
4 William Blackstone, Commentaries on the Laws of
Ne eincnneneccncemesetcemnnscinsmemmenpanenccinnninnss 13, 40
James Lindgren, The Elusive Distinction Between
Bribery and Extortion: From the Common Law to
the Hobbs Act, 35 UCLA L. Rev. 815 (1988)............... 30, 39
Merriam-Webster’s Collegiate Dictionary (10th ed.
SUID stasestiesnieciniaianiesicecbiieniiiapahaicnastistimmianiteaintlinteamenuutieminanianmnate 21
In the Supreme Court of the Anited States
No. 14-361
SAMUEL OCASIO, PETITIONER
v.
UNITED STATES OF AMERICA
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRIEF FOR THE UNITED STATES
OPINION BELOW
The opinion of the court of appeals (Pet. App. 1-29)
is reported at 750 F.3d 399.
JURISDICTION
The judgment of the court of appeals was entered
on April 29, 2014. A petition for rehearing was denied
on May 28, 2014. On July 18, 2014, the Chief Justice
extended the time within which to file a petition for a
writ of certiorari to and including September 25, 2014,
and the petition was filed on that date. The petition
was granted on March 2, 2015. The jurisdiction of this
Court rests on 28 U.S.C. 1254(1).
STATUTORY PROVISIONS INVOLVED
The pertinent statutory provisions are reproduced
in the appendix to this brief. App., infra, la-3a.
(1)
2
STATEMENT
Following a jury trial in the United States District
Court for the Dist..ct of Maryland, petitioner was
convicted on one count of conspiring to interfere with
commerce by extortion under the Hobbs Act, in viola-
tion of 18 U.S.C. 371, and three counts of interfering
with commerce by extortion, in violation of the Hobbs
Act, 18 U.S.C. 1951(a). Pet. App. 46, 51. The district
court sentenced petitioner to 18 months of imprison-
ment, to be followed by three years of supervised
release. Jd. at 47-48, 52-53. The district court also
ordered petitioner to pay $3,370.58 in restitution. Jd.
at 15-16; C.A. App. 1472. The court of appeals
affirmed petitioner’s convictions, Pet. App. 16-25, but
vacated the restitution order in part and remanded for
further proceedings concerning restitution, id. at 28-
29. On remand, the district court amended the judg-
ment and ordered restitution of $1500. Jd. at 53-54.
1. a. Hernan Alexis Moreno Mejia (known as Alex
Moreno) and Edwin Javier Mejia (known as Edwin
Mejia), who are brothers, co-owned and operated a
Baltimore-area car repair shop called Majestic Auto
Repair Shop, LLC (Majestic).' Pet. App. 2. In 2008,
Majestic did not “have a high volume of cars coming”
in for repairs. J.A. 95. Accordingly, the shop’s
owners struck a deal with Officer Jhonn Corona of the
Baltimore Police Department (BPD): Officer Corona
would send car accident victims to Majestic for
repairs; in return, Majestic would pay Officer Corona
a kickback of $150 per vehicle. J.A. 95-96, 150.”
' Majestic was originally a limited liability company but became
a corporation in 2010. C.A. App. 655-656, 736; see J.A. 145.
* That practice violated BPD policy in at least two ways. First,
BPD regulations prohibited officers from “solicit{ing] or
3
Officer Corona spread word to other BPD officers,
who joined the scheme and collected between $150 and
$300 for each car referred to Majestic. J.A. 96;
Pet. App. 6. Some officers even set up a referral
“network,” through which they would receive a
portion of another officer’s kickback as a fee for
“recruiting” that officer into the scheme. J.A. 126,
129. Between 2008 and 2011, as many as 60 BPD
officers received payments from Majestic. J.A. 96.
As Moreno later explained, the kickback scheme al-
lowed for a “beneficial” division of labor. J.A. 97.
When car accidents occur, “the first people to go to
the scenes” are police officers; for that reason, the
participating officers were well positioned to ensure
that damaged cars were sent to Majestic rather than
to another shop. /bid. If a car was still drivable,
Moreno or Mejia would create a phony towing record
“to prove to the insurance company that [the] car was
actually damaged before it got to the shop.” J.A. 152-
153. Once the car was at the shop, Moreno often
caused additional damage—in order to ensure that the
repairs were reimbursable according to insurance
“protocols” (J.A. 101-102, 107), and to conform the
damage to police accident reports, which the partici-
pating officers fabricated to increase insurance reim-
bursements (J.A. 139). Payments from insurance
companies were deposited directly into Majestic’s
acceptiing]” any “compensation[], reward, gift or other considera-
tion * * * without special permission of the police commissioner.”
C.A. App. 209; see Pet. App. 6. Second, for cars that needed tow-
ing, the BPD’s towing procedures required investigating officers
to contact, through dispatch, a pre-approved towing company that
already had a contract with the City of Baltimore. Pet. App. 6-7;
C.A. App. 213-214. Majestic was not such a company. J.A. 104;
Pet. App. 7.
4
business account (J.A. 145-147, 149-150), and Moreno
used the same account to make the payments to offic-
ers (J.A. 97-98, 149). Finally, Mejia would conceal
these kickbacks on Majestic’s books by categorizing
them as “advertising and promotion.” J.A. 158-159;
see J.A. 150-151.
The scheme proved financially “beneficial” to Ma-
jestic, Moreno, and Mejia. J.A. 96. Once Moreno
began paying the officers, the volume of Majestic’s
business “increased quickly” (J.A. 100), and its profits
similarly grew (J.A. 110). Moreno and Mejia even
argued about whether the shop was getting “too
many” cars. J.A. 109. By January 2011, at least 90%
of Majestic’s business consisted of officer referrals.
J.A. 100, 127.
b. In October 2007, the BPD hired petitioner as a
police officer and assigned him to the night shift in
south Baltimore. J.A. 75; C.A. App. 253. By May
2009, petitioner had learned of the kickback scheme
from another BPD officer, likely Officer Leonel Ro-
driguez. J.A. 111-114; Pet. App. 7-8 & n.7. According
to Moreno, Officer Rodriguez or another officer “re-
cruited” petitioner for the scheme and put him in
touch with Moreno. J.A. 136-137, 174; see J.A. 130.
On several occasions from May 2009 through about
February 2011, petitioner persuaded accident victims
to have their damaged cars towed to and repaired by
Majestic. Pet. App. 7-8. Often petitioner would call
Moreno from the scene of the accident to describe the
vehicle—its make, model, age, and the extent of any
damage. Jbid. Moreno preferred newer models be-
cause they were less likely to be written off by the
insurance company as “a total loss.” J.A. 105; see
J.A. 124. Also preferable were cars with “full cover,”
5
meaning that “the car at fault was a luxury vehicle and
that its insurer would pay for the damages.” Pet. App.
9; see J.A. 106-107 (cars with deployed airbags were
disfavored). If Moreno wanted a car, petitioner would
convince the owner to have it towed to the shop.
Pet. App. 8, 10. After referring a car to Majestic,
petitioner would call Moreno and request a $300 pay-
ment, usually by the next afternoon. /d. at 8-12. Peti-
tioner collected payments in person from Moreno at
Moreno’s home, an ATM, or a convenience store. /d.
at 10-12.
Petitioner also used Majestic’s services himself.
Pet. App. 12-13. For example, when his wife was in-
volved in a minor traffic accident, petitioner, at More-
no’s suggestion, overstated the damage in a claim
form filed with his insurer. Jd. at 12; C.A. App. 393-
395, 636-637. Moreno then caused additional damage
to the car in a manner consistent with petitioner’s
description, repaired the damage, and billed petition-
er’s insurance company, which paid for the repairs
and was later reimbursed by the other driver’s insur-
er. Pet. App. 12-13; C.A. App. 393-398, 636-637. Mor-
eno paid petitioner a $300 kickback for bringing his
car to the shop and also covered his insurance deduct-
ible and car rental fees. Pet. App. 13; C.A. App. 399.
Moreno explained at trial that he did so to “make
[petitioner] happy” and to ensure that petitioner
would “keep sending cars to Majestic.” C.A. App. 399;
see Pet. App. 13.
Finally, petitioner sought to bring other BPD offic-
ers into the scheme. See J.A. 125. Petitioner’s goal
was to “create a network” of officers who would give
him a cut of every kickback they received from Majes-
tic. J.A. 129; see J.A. 126 (petitioner sought to follow
6
the “example” of “officers [who] were making money
off other officers”). Ultimately, petitioner recruited at
least one other officer and put him in touch with
Moreno. J.A. 138 (“I asked him if he knew about the
cars. He stopped me right there. He was like no, no,
no, I’ve already got it, Ocasio explained that to me.”);
see J.A. 172-173 (Moreno told the FBI that petitioner
had recruited two other officers.).
2. In February 2011, after “an extensive investiga-
tion conducted by the BPD and the FBI” (Pet. App.
5), federal agents arrested Moreno, Mejia, petitioner,
and several other BPD officers (C.A. App. 1030-1032).
In March 2011, a grand jury in the District of Mary-
land indicted Moreno, Mejia, petitioner, and nine
other BPD officers—including Officer Rodriguez, who
had initially recruited petitioner into the kickback
scheme. J.A. 24-32. Most of the officers pleaded
guilty, as did Moreno and Mejia. Pet. App. 3 & n.2.
In October 2011, the grand jury returned a Super-
seding Indictment charging that petitioner and Officer
Kelvin Manrich had conspired with other BPD officers
and with Moreno and Mejia to interfere with com-
merce by extortion under the Hobbs Act, 18 U.S.C.
1951. J.A. 33-43. The Hobbs Act defines “extortion”
as “the obtaining of property from another, with his
consent, induced by wrongful use of actual or threat-
ened force, violence, or fear, or under color of official
right.” 18 U.S.C. 1951(b)(2). Count One alleged a
violation of the general federal conspiracy statute, 18
U.S.C. 371. J.A. 36-39. The “purpose of the conspira-
cy [was] for Moreno and Mejia to enrich over 50 BPD
Officers, including [petitioner], and to benefit Moreno
and Mejia by issuing payments to the BPD Officers in
exchange for the BPD Officers’ exercise of their offi-
7
cial positions and influence to cause vehicles to be
towed or otherwise delivered to Majestic for automo-
bile services and repair.” J.A. 36-37. The Supersed-
ing Indictment also charged petitioner with three
substantive counts of interfering with commerce by
extortion, in violation of 18 U.S.C. 1951(a) (Counts 5,
6, and 7). J.A. 41-42.
Before trial, petitioner sought a jury instruction
providing that the government, in order to convict him
of conspiracy to violate the Hobbs Act, had to prove
“that the conspiracy was to obtain money or property
from some person who was not a member of the
conspiracy.” J.A. 53. The government opposed the
request and moved to preclude petitioner from
making that argument to the jury. J.A. 57; see J.A.
61. The district court did not rule on either request
before trial.
Petitioner and Officer Manrich were tried together.
Pet. App. 13-14. Moreno, Mejia, and other witnesses
testified to the facts described above. Jd. at 3, 14.
Throughout the trial, petitioner maintained that
Moreno was the animating force behind the kickback
scheme. For example, in his opening statement, peti-
tioner’s counsel stated that Moreno was a “cancer” on
society who had “corrupted a great number of Balti-
more City police officers,” but “did not corrupt my
client, Samuel Ocasio.” J.A. 70; see J.A. 71 (“So what
Moreno was doing, he was corrupting police officers.
He was cheating insurance companies. Quite honest-
ly, he is making all of our insurance rates go up.”).
Similarly, during cross-examination, petitioner asked
Moreno: “You in fact recruited most of the officers,
did you not?” J.A. 127. And in closing, petitioner
argued that “Moreno, and to a lesser extent, his
8
brother, Edwin Mejia, were clearly involved in this
conspiracy up to their ears to get policemen to refer
cars to them.” C.A. App. 1226; see id. at 1232
(arguing that Moreno was “the ultimate schemer” who
“cheat[s] everybody that comes into his path”).
At the conclusion of the government’s evidence and
again at the close of all the evidence, petitioner moved
for a judgment of acquittal, arguing that he could not
be convicted because “the proceeds from the conspira-
cy were extracted from” the shop’s owners, who were
co-conspirators. J.A. 176; see J.A. 190. The district
court denied the motions because (1) the Fourth
Circuit had already rejected the argument that the
property in a Hobbs Act conspiracy must come from
someone outside the conspiracy; and (2) Majestic, not
its owners, “was actually the source of the pay-
mentjs]” in this case. J.A. 179; see J.A. 190.
Over petitioner’s objection, the district court also
declined to instruct the jury that the government had
to prove “that the conspiracy was to obtain money or
property from some person who was not a member of
the conspiracy.” J.A. 53; see Pet. App. 30-31. As part
of its conspiracy instruction, however, the court
“caution[ed]” the jury “that mere knowledge or acqui-
escence, without participation in the unlawful plan,
[was] not sufficient” to “establish membership in the
conspiracy.” J.A. 195. Rather, the government was
required to show that the conspirators had “a mutual
understanding * * * to cooperate with each other to
accomplish an unlawful act” (J.A. 192) and that the
defendant had joined the conspiracy “with the
intention of aiding in the accomplishment of those
unlawful ends” (J.A. 195).
9
Officer Manrich pleaded guilty before the case was
submitted to the jury. Pet. App. 15. The jury found
petitioner guilty on the conspiracy count and all three
substantive counts, and the district court sentenced
him to 18 months of imprisonment. /d. at 47-48. Peti-
tioner was also ordered to pay $3,370.58 in restitution.
Id. at 15-16; C.A. App. 1472.
3. The court of appeals affirmed petitioner's
convictions.’ Pet. App. 1-29.
On appeal, petitioner did not contest that the trial
evidence was sufficient to prove that he had commit-
ted extortion in violation of the Hobbs Act. He argued
that he could not be convicted of conspiracy, however,
because in his view “conspiring to extort property
from one’s own coconspirator does not contravene
federal law.” Pet. App. 16. For that argument, peti-
tioner relied on the Sixth Circuit’s decision in United
States v. Brock, 501 F.3d 762 (2007), which held that
“{t]lo be covered by the [Hobbs Act], the alleged
conspirators * * * must have formed an agreement to
obtain ‘property from another,’ which is to say,
formed an agreement to obtain property from some-
one outside the conspiracy.” Jd. at 767.
The court of appeals rejected petitioner’s
argument, holding “that a person * * * who actively
participates (rather than merely acquiesces) in a con-
spiratorial extortion scheme[} can be named and pros-
ecuted as a coconspirator even though he is also a
purported victim of the conspiratorial agreement.”
* As noted (p. 2, supra), the court of appeals partially vacated
the district court’s award of restitution and remanded for further
proceedings concerning restitution. Pet. App. 25-29. On remand,
the district court amended the judgment and ordered total restitu-
tion of $1500 rather than $3,370.58. Id. at 53-54.
10
Pet. App. 22. “That rule,” the court observed, “com-
ports with basic conspiracy principles,” inasmuch as
“{oJne who knowingly participates in a conspiracy to
violate federal law can be held accountable for not
only his actions, but also the actions of his coconspira-
tors.” /bid.
The court of appeals disagreed with petitioner’s
argument that “the Hobbs Act’s ‘from another’ lan-
guage requires that a coconspirator obtain property
from someone outside the conspiracy.” Pet. App. 23
(citation and internal quotation marks omitted). The
court explained that “‘from another’” simply “refers
to a person or entity other than the public official”
who received the property. /bid. In the court’s view,
“‘another’ can also be a coconspirator of the public
official,” provided that the co-conspirator “actively
participates” in the conspiracy “rather than merely
acquiesc[ing]” in it. /d. at 22-23. That is because, the
court explained, a bribe-payor’s “mere acquiescence”
in a payment, without more, would fall short of the
“agreement [necessary] to enter into a conspiracy.”
Id. at 23-24. Accordingly, the court reasoned, peti-
tioner was “wrong to suggest that every extortion
scheme will necessarily involve a conspiracy to commit
extortion.” Jd. at 24.
Finally, the court of appeals also pointed out that
petitioner’s argument rested on a “flawed * * *
evidentiary premise,” inasmuch as Moreno and Mejia
were not “his only coconspirators.” Pet. App. 25 n.14.
The evidence at trial “established a wide-ranging
conspiracy involving dozens of BPD officers who
received money for referring wrecked vehicles to the
Majestic Repair Shop.” Jbid. In the court’s view, “the
jury was entitled to find” that petitioner had con-
1]
spired with those other officers—irrespective of Mor-
eno’s and Mejia’s active involvement in the scheme.
Ibid.
SUMMARY OF ARGUMENT
Petitioner was validly convicted of conspiring to
violate the Hobbs Act by joining and participating in a
scheme to obtain “property from another, with his
consent * * * under color of official right.” 18 U.S.C.
1951(b)(2). He argues that conspirators must agree to
obtain property from someone outside the conspiracy,
but that contention is at odds with the Act itself and
with longstanding principles of conspiracy law.
A. Petitioner, a police officer, formed and carried
out an agreement to commit Hobbs Act extortion. He
agreed with the owners of a body shop, and with other
police officers, that the officers would “obtain[] a
payment to which [they were] not entitled, knowing
that the payment was made in return for official acts,”
Evans v. United States, 504 U.S. 255, 268 (1992),
namely, referrals of wrecked vehicles to the shop. All
participants, including the shop’s owners, actively
participated in that scheme.
B. Petitioner’s primary textual argument against
conspiracy liability rests on the requirement that
property be obtained “from another.” Petitioner
asserts that when conspirators merely agree “to
exchange property between themselves,” then “[(t]heir
agreement does not concern ‘another’ at all—only
themselves.” Pet. Br. 22. That argument is premised
on the mistaken assumption that all conspirators must
agree to commit every element of the crime. But “a
conspirator [need] not agree to commit or facilitate
each and every part of the substantive offense.”
Salinas v. United States, 522 U.S. 52, 63 (1997).
12
Indeed, a conspirator may face liability “even though
he was incapable of committing the substantive
offense” himself. Jd. at 64. Although the shop’s own-
ers did not agree that they would obtain property
“from another,” all participants in the kickback
scheme agreed on a common goal: that police officers
would perform official acts in order to obtain property
from another. Petitioner’s other textual arguments
rely on the same mistaken premise.
Petitioner’s interpretation would also perversely
punish the government for alleging and proving
additional facts at trial, as this case illustrates. Had
petitioner been accused of conspiring solely with
fellow officers, even petitioner would concede that all
elements of the conspiracy would be satisfied. But
because the government accused him of conspiring
“with other Baltimore Police Department Officers
* * * and with Moreno and Mejia,” petitioner says
the prosecution was defective. J.A. 36 (emphasis
added). There is no reason that a narrower conspira-
cy involving fewer participants should receive criminal
punishment, while a broader one involving more
participants receives none.
Petitioner’s reading is further flawed, because it
would cause serious conceptual problems in cases
involving payments from artificial entities, such as
businesses, that can act only through their agents.
And it would have anomalous consequences for
conspiracy charges based on other federal criminal!
statutes that prohibit transfers “from another” or “to
another”—many of which often involve collusive action
between the transferee and transferor.
C. Petitioner’s purpose-based arguments are
equally unpersuasive. First, he asserts that the gov-
13
ernment’s reading of the Hobbs Act “turns every act
of receiving a bribe into a conspiracy to commit extor-
tion.” Pet. Br. 37 (capitalization altered). He reasons
that, because the Act requires property to be obtained
with “consent,” 18 U.S.C. 1951(b)(2), that same con-
sent will also “establish that the bribe-payor and the
public official agreed” to the transaction. Pet. Br. 37.
But the Act’s “consent” requirement sets a far lower
threshold than the mens rea necessary for conspiracy;
“consent” may be shown even when a conspiratorial
agreement does not exist.
Petitioner is also wrong in suggesting that the
Fourth Circuit “fabricated” a distinction between a
bribe-payor’s “mere acquiescence” to an official
demand, as opposed to his “active participation” in the
scheme. Pet. Br. 46. That distinction is drawn direct-
ly from this Court’s conspiracy case law. See United
States v. Holte, 236 U.S. 140 (1915); Gebardi v. United
States, 287 U.S. 112 (1932). In the years since
Gebardi, numerous courts have applied the mere
acquiescence/active participant distinction to Hobbs
Act extortion, with no hint of difficulty or unfairness.
Finally, the government’s approach would not
impose liability on extortion “victims.” Pet. Br. 17, 18,
23. When a public official commits extortion by
trading official acts for private gain, the true victim is
the public, because “extortion is an abuse of public
justice.” 4 William Blackstone, Commentaries on the
Laws of England 141 (1769) (emphasis omitted). To
call Moreno and Mejia “the victims of their own
conspiracy” (Pet. Br. 2) ignores their active and
moving role in instigating the scheme and ensuring its
success.
14
D. Even if petitioner were correct that a Hobbs Act
conspiracy must involve conspirators other than the
bribe-payor, such a conspiracy existed in this case.
The indictment alleged, and the evidence at trial
proved, that petitioner conspired with his fellow police
officers. Any error in instructing the jury that the
shop owners were co-conspirators as well was accord-
ingly harmless.
ARGUMENT
A PUBLIC OFFICIAL WHO AGREES TO OBTAIN
PROPERTY FROM A CO-CONSPIRATOR IN EXCHANGE
FOR PUBLIC ACTS MAY BE PROSECUTED FOR
CONSPIRACY TO COMMIT EXTORTION
The general federal conspiracy statute makes it an
offense when “two or more persons conspire * * * to
commit any offense against the United States” and
one of the conspirators commits an overt act in fur-
therance of the offense. 18 U.S.C. 371. When the
conspiracy is to violate the Hobbs Act through extor-
tion by a public official, the conspirators must agree
that the official will “obtain[] a payment to which he
was not entitled, knowing that the payment was made
in return for official acts.” Evans v. United States,
504 U.S. 255, 268 (1992). That is what occurred in this
case: The conspirators agreed that petitioner and
other BPD officers would use their authority to funnel
car accident victims to Majestic, in return for pay-
ments from the shop’s owners.
Petitioner contends that, because the alleged
conspirators must conspire to obtain “property from
another, with his consent,” 18 U.S.C. 1951(b)(2)
(emphasis added), the conspirators must agree to
obtain property from someone outside the conspiracy.
But rot every conspirator must agree to commit (or
15
must be capable of committing) every element of the
substantive crime. The conspirators need only agree
that the public official will obtain property from an-
other, with the other’s consent, and that the provider
of the property will actively participate in the scheme.
Petitioner and his co-conspirators satisfied those
requirements by jointly forming a pian in which
petitioner would sell “public favors for private gain.”
Wilkie v. Robbins, 551 U.S. 537, 564 (2007). And even
under petitioner’s own theory, the evidence clearly
established his liability.
A. Conspiracy To Violate The Hobbs Act Requires Only
An Agreement For That Unlawful Purpose And An
Overt Act In Furtherance Of The Agreement
“The gist of the crime of conspiracy * * * is the
agreement or confederation of the conspirators to
commit one or more unlawful acts.” Braverman v.
United States, 317 U.S. 49, 53 (1942). When two or
more people join forces to obtain an objective that the
law forbids, and “one or more of [them] do any act to
effect the object of the conspiracy,” then they may be
found in violation of the general federal conspiracy
statute. 18 U.S.C. 371. Together with the shop’s
owners and with other BPD officers, petitioner
formed an agreement whose objective was for peti-
tioner and other officers to commit “extortion” under
the Hobbs Act—that is, for the officers to exchange
official acts for money. Having formed and carried
out that agreement, petitioner was guilty of criminal
conspiracy.
1. “A conspiracy is a partnership in criminal
purposes.” United States v. Kissel, 218 U.S. 601, 608
(1910). Congress long ago recognized that “collective
criminal agreement * * * presents a greater potential
16
threat to the public than individual delicts.” Callanan
v. United States, 364 U.S. 587, 593 (1961). Among
other things, a conspiracy serves “to unite, back of a
criminal purpose, the strength, opportunities and
resources of many,” creating a multifarious organiza-
tion that is “obviously more dangerous and more diffi-
cult to police than the efforts of a lone wrongdoer.”
Krulewitch v. United States, 336 U.S. 440, 448-449
(1949) (Jackson, J., concurring). Joint activity allows
for a division of labor among conspirators, “mak[ing]
possible the attainment of ends more complex than
those which one criminal could accomplish.” Callan-
an, 364 U.S. at 593. And the creation of an ongoing
criminal enterprise also “makes more likely the com-
mission of crimes unrelated to the original purpose for
which the group was formed.” /d. at 594. For these
and other reasons, “[i]t has been long and consistently
recognized * * * that the commission of the substan-
tive offense and a conspiracy to commit it are separate
and distinct offenses.” Pinkerton v. United States,
328 U.S. 640, 643 (1946).
Under the general federal conspiracy statute, “two
or more persons [who] conspire * * * to commit any
offense against the United States” are guilty of con-
spiracy if any one of them “dofes] any act to effect the
object of the conspiracy.” 18 U.S.C. 371. The statute
thus has two elements: (1) an agreement between two
or more conspirators “to commit any offense against
the United States”; and (2) an overt act by one of them
“to effect the object” of that agreement. The first
element resembles forming an agency relationship: It
is an “‘agreement[] to agree’ on the multitude of deci-
sions and acts necessary to successfully pull off a
crime.” United States v. Townsend, 924 F.2d 1385,
17
1394 (7th Cir. 1991). Accordingly, although the con-
spirators must “pursue the same criminal objective,” a
conspirator need not agree that he, himself, will
“commit or facilitate each and every part of the sub-
stantive offense.” Salinas v. United States, 522 U.S.
52, 63 (1997). Rather, it is sufficient that all members
of the conspiracy have committed themselves towards
the same unlawful goal. See id. at 64 (“If conspirators
have a plan which calls for some conspirators to per-
petrate the crime and others to provide support, the
supporters are as guilty as the perpetrators.”).
2. The Hobbs Act prescribes criminal 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).
The Act 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). As this Court has explained, the statute
thus combines two categories of criminal conduct—
“coercive extortion and extortion by official right”—
that had been treated as separate offenses under New
York penal law and the 19th-century Field Code,
which were Congress’s two models in adopting the
Hobbs Act. Evans, 504 U.S. at 261 n.9.
At issue in this case is extortion by official right,
traditionally a common law offense “committed by a
public official who took ‘by colour of his office’ money
that was not due to him for the performance of his
official duties.” Evans, 504 U.S. at 260 (citation and
footnotes omitted). As incorporated by the Hobbs
Act, extortion by official right covers at least two
18
categories of wrongdoing by public officials. The first
category is “extortion accomplished by fraud,” for
instance where an official falsely claims entitlement to
a fee for his services. /d. at 269; see ibid. (“wrongful
takings under a false pretense of official right”). The
second category, which was at issue in Evans itself, is
“the rough equivalent of what we would now describe
as ‘taking a bribe.’” Jd. at 260. A public official com-
mits this form of extortion if he “has obtained a pay-
ment to which he was not entitled, knowing that the
payment was made in return for official acts.” Jd. at
268. Although the payment must be accepted by the
public official “in return for his agreement to perform
specific official acts,” ibid., the exchange need not be
“initiated by the recipient of the bribe,” id. at 266.
See ibid. (government need not “pro[ve] that the
inducement took the form of a threat or demand”).
3. Petitioner does not deny that he was validly
convicted of substantive acts of extortion. See Pet.
Br. 1 (“Under this Court’s precedent, petitioner’s con-
duct constitutes extortion.”). Nor could he. The evi-
dence at trial overwhelmingly showed that petitioner
accepted multiple payments from the body shop’s
owners in return for using his influence as a police
officer to funnel car accident victims to their shop.
That was public-official extortion as the Act defines it:
Petitioner “obtain[ed] * * * property from another,
with his consent, * * * under color of official right.”
18 U.S.C. 1951(b)(2).
As noted above, for petitioner also to be guilty of
conspiracy, the government was required to prove
(1) that he agreed with one or more persons “to
commit any offense against the United States”; and
(2) one of the conspirators took an overt act “to effect
19
the object” of their agreement. 18 U.S.C. 371. The
evidence established that distinct offense as well.
The first element was satisfied by the conspirators’
agreement to “pursue the same criminal objective.”
Salinas, 522 U.S. at 63. Petitioner agreed “with other
Baltimore Police Department Officers * * * and with
Moreno and Mejia” that Majestic would “issufe] pay-
ments to the BPD Officers in exchange for the BPD
Officers’ exercise of their official positions and influ-
ence.” J.A. 36 (superseding indictment). The body
shop’s owners closely aligned themselves with peti-
tioner and other participating officers in active pursuit
of that common goal. The conspirators thus agreed
that petitioner and other officers would “commit an| ]
offense against the United States.”
That criminal agreement, moreover, had precisely
the characteristics that make conspiracies so danger-
ous. It united the “opportunities and resources”
of BPD officers such as petitioner—namely, the offic-
ers’ access to and influence over car accident victims
—together with the business assets and know-how of
the shop’s owners. See Krulewitch, 336 U.S. at 448
(Jackson, J., concurring). Participating BPD officers
also used their access to other officers in order to
recruit new co-conspirators, thereby extending the
conspiracy’s reach. This division of labor enabled a
far broader and “more complex” scheme than any
conspirator could have pulled off on his own. See
Callanan, 364 U.S. at 593. The conspiracy also facili-
tated crimes other than the kickbacks themselves,
such as falsified accident reports, phony towing forms,
self-inflicted damage to vehicles, and other forms of
insurance fraud. See id. at 594.
20
The second element of conspiracy—an overt act—is
not seriously disputed. Petitioner took a number of
steps “to effect the object” of the conspiracy, as did
Moreno, Mejia, and other participating officers.
Having satisfied both elements of Section 371,
petitioner may be held liable for conspiracy.
B. Petitioner's Textual Argument Is Premised On A
Mistaken Assumption: That All Conspirators Must
Satisfy Each Element Of The Substantive Offense
Petitioner does not directly address the elements
of a Section 371 conspiracy. Indeed, petitioner does
not refer at all to the text of the statute under which
he was convicted. See Pet. Br. viii-ix (listing federal
statutes, but not Section 371). Instead, petitioner
focuses on the requirement for an extortion conviction
under Section 1951 that property be taken “from
another.” He argues that members of a conspiracy
cannot satisfy that requirement if the property is
taken from one of them. According to petitioner, the
government must therefore prove that the conspira-
tors “agreed among themselves to obtain property
from a person outside the conspiracy.” Jd. at 21
(emphasis added). But that argument cannot be
squared with well-established principles of conspiracy
liability, or with the statute itself.
1. Petitioner’s primary argument purports to fol-
low from the Hobbs Act’s text. The statute punishes
“[wjhoever” commits “extortion or attempts or con-
spires so to do.” 18 U.S.C. 1951(a). The Act further
defines extortion as “the obtaining of property from
another, with his consent, * * * under color of
official right.” 18 U.S.C. 1951(b)(2) (emphasis added).
The word “another” must refer to someone besides
the perpetrator of the crime. Pet. Br. 22. So if two or
21
more people conspire “to exchange property between
themselves,” petitioner concludes, then “(tjheir
agreement does not concern ‘another’ at all—only
themselves.” Ibid.
Petitioner misreads the statute. When a public
official faces prosecution for conspiracy to commit
extortion under Section 1951(a), “Whoever” refers to
the defendant official, and “property from another”
refers to property not belonging to that official. See
Merriam-Webster’s Collegiate Dictionary 48 (10th ed.
1993) (defining “another” to mean, inter alia, “differ-
ent or distinct from the one first considered”). The
phrase “with his consent” similarly refers to the con-
sent of someone other than the public official. Those
conditions were satisfied here: Petitioner obtained
property from another (Moreno and Mejia), and did so
“with his consent.” Petitioner therefore obstructed
commerce “by extortion”; and, in forming an agree-
ment for that purpose, he also “conspire[d] so to do.”
Petitioner’s error lies in his unstated—but repeat-
ed—assumption that no conspirator may face liability
unless all conspirators have agreed to commit every
element of the crime. This error is well illustrated by
an example petitioner offers:
John, a policeman, says to Susan, a civilian, “Let us
agree to obtain money from another, by getting
that person’s consent through use of my right and
authority as a public official.” Susan then asks,
“Who did you have in mind?” If John were to an-
swer, “Oh, I meant you should pay me,” Susan
would rightly be confused.
Pet. Br. 23 (first emphasis added). In this example,
John’s phrasing suggests that both he and Susan
(“us”) are the subject of all the conduct: not only the
22
“agree[ing],” but also the “obtain[ing].” But while
both Susan and John can agree, only John can obtain
money from another. In other words, what makes the
phrasing problematic is that it requires both partici-
pants to take both actions—or at least to be capable of
doing so.
Under long-established principles of conspiracy
liability, however, “[a] conspiracy may exist even if a
conspirator does not agree to commit or facilitate each
and every part of the substantive offense.” Salinas,
522 U.S. at 63. Indeed, a conspirator can be held
liable even if he, himself, has agreed to commit none
of the elements of the substantive offense. For
instance, if the “plan * * * calls for some conspirators
to perpetrate the crime and others to provide support,
the supporters are as guilty as the perpetrators.” /d.
at 64. Moreover, “[a] person * * * may be liable for
conspiracy even though he was incapable of commit-
ting the substantive offense” himself. /bid. All that is
required is that the conspirators “share a common
purpose” that a crime be committed. /bid.
This last principle—that not all conspirators must
be capable of committing the substantive offense—is
illustrated by United States v. Holte, 236 U.S. 140
(1915). That case involved a prosecution for conspira-
cy to violate the Mann Act, ch. 395, 36 Stat. 825, which
imposed liability on “any person who shall knowingly
transport * * * in interstate or foreign commerce
* * * any woman or girl for the purpose of prostitu-
tion or debauchery.” The question was whether “the
transported woman” could be guilty of conspiring to
violate the Act based on the general federal conspira-
cy statute—that is, whether she had “‘conspire[d] to
commit an offence against the United States.’” Holte,
23
236 U.S. at 144 (quoting predecessor of Section 371).
The defendant argued that conspiracy liability could
only be predicated on “an offence that all the
conspirators should commit,” and that, as the woman
who was transported, she could not be guilty of the
substantive offense. Jbid. The Court disagreed, ex-
plaining that under “the common law as to conspira-
cy,” the word “‘commit’ means no more than bring
about.” Jbid. Given that definition, “plainly a person
may conspire for the commission of a crime by a third
person,” even if she could not commit the crime
herself. Ibid.; see United States v. Rabinowich, 238
U.S. 78, 86 (1915) (“A person may be guilty of conspir-
ing although incapable of committing the objective
offense.”).
In this case, although the shop’s owners could not
themselves commit public-official extortion, they
nevertheless could “conspire for the commission of a
crime by a third person”—namely, by petitioner and
other BPD officers. To return to petitioner’s example,
John might have said: “Let us agree that IJ, a public
official, will obtain money from another, namely you,
by getting your consent through use of my right and
authority as a public official.” The conspirators in
that scenario can agree to the use of the public
official’s authority in exchange for private gain; and if
the private party actively participates in the corrupt
scheme, see pp. 33-39, infra, then the two are
conspirators.
2. Petitioner’s other textual arguments are similar-
ly unavailing.
a. Petitioner contends that “when a public official
and a citizen merely agree to exchange property be-
tween themselves, it cannot be said that both parties
24
are agreeing to obtain the property.” Pet. Br. 23. But
their conspiratorial agreement need not be that “both
parties” will obtain the property. Rather, they need
only agree that “a public official [will] obtain[] a
payment to which he was not entitled, knowing that
the payment was made in return for official acts.”
Evans, 504 U.S. at 268.
b. For the same reason, petitioner errs in suggest-
ing that the government’s interpretation would have
the conspirators agreeing “to obtain their own con-
sent” to the payment. Pet. Br. 24 (emphasis added).
The consent of all conspirators is not required, only
the consent of the person giving money to the public
official.
ec. Petitioner argues that the Hobbs Act “punishes
‘whoever’ conspires to obtain property from ‘anoth-
er,” thereby indicating “that the ‘whoever’ and the
‘another’ must be different people.” Pet. Br. 24. That
argument depends on cobbling together the conspira-
cy language of Section 1951(a) (“Whoever” interferes
with commerce by “extortion or attempts or conspires
so to do”) with the definition of extortion in Section
1951(b)(2) (“obtaining of property from another”).
But petitioner was not convicted of conspiracy under
Section 195l(a). Rather, he was convicted under
Section 371, which applies when “two or more persons
conspire * * * to commit any offense against the
United States.” Petitioner does not dispute that he
committed such an offense, or that he formed an
agreement in service of that goal. That is all a convic-
tion under Section 371 requires. See pp. 15-20, supra.
Even if petitioner had been convicted of conspiracy
under Section 1951, that would not save his argument.
Petitioner is correct that the person who “obtain[s]”
25
the property must be different than “another,” but
that does not mean that the person who obtains the
property must be the same as “Whoever” is prosecut-
ed for conspiracy. Indeed, if petitioner were correct
that “Whoever” conspires must also be the person who
“obtain{s]” the property, then only public officials
could be conspirators, because only public officials can
obtain property “under color of official right.” Yet the
statute gives no indication that private parties who
actively facilitate an extortionate scheme are immune
from conspiracy liability. To the contrary, petitioner
himself cites New York cases in which private parties
were held liable for conspiring with public officials.
See Pet. Br. 41 (citing People v. Kay, 105 N.Y.S.2d
687, 688 (N.Y. App. Div. 1951) (per curiam), in which
“police officers conspired with two civilians,” and Jn re
Stephens, 203 N.Y.S. 500, 504-505 (N.Y. App. Div.
1924), in which a private attorney conspired with a
district attorney). In cases like those, where a private
party conspires with a public official, the private party
can be the “Whoever” in Section 1951(a), even if the
“obtaining of property from another * * * under color
of official right” in Subsection 1951(b)(2) was done by
the official.‘
d. Finally, petitioner argues that “the govern-
ment’s interpretation erases the requirement of ob-
taining property ‘from another,” because “no statuto-
ry language is needed to confirm the metaphysical
impossibility of paying oneself a bribe with one’s own
* Petitioner's argument overlooks the fact that “Whoever” in
Section 1951(a) is not the subject of “obtaining of property” in Sec-
tion 1951(bX2). Instead, “Whoever” refers to a person who “ob-
structs, delays, or affects commerce” or a person who “attempts or
conspires so to do.” 18 U.S.C. 1951(a).
26
money.” Pet. Br. 29. But all sides agree that the
property must change hands; the only question is
whether it may go from a co-conspirator to a public
official (the government’s view), or must it go to the
official from someone uninvolved in the conspiracy
(petitioner’s view). The answer to that question has
nothing to do with “the metaphysical impossibility of
paying oneself a bribe.” And in any event, under
either interpretation, the word “obtaining” would
itself be sufficient to indicate movement from one
person to another: “Obtaining property requires ‘not
only the deprivation but also the acquisition of proper-
ty.” Sekhar v. United States, 133 S. Ct. 2720, 2725
(2013) (quoting Scheidler v. National Org. for Women,
Inc., 587 U.S. 393, 404 (2003)).
3. Petitioner’s interpretation of Section 1951 would
also produce at least three anomalies that Congress
likely did not intend. See Sullivan v. Hudson, 490
U.S. 877, 890 (1989) (“Congress cannot lightly be
assumed to have intended” a reading that produces
“anomalous” results.).
a. Petitioner does not dispute that, for purposes of
his substantive extortion convictions, the statutorily
required roles were satisfied: Petitioner was the
“Whoever” in Section 1951(a), and Moreno was
“another” in Section 1951(b) from whom property was
obtained “with his consent.” Yet under petitioner’s
reading, those same respective roles do not suffice for
purposes of a conspiracy conviction. Congress would
have had no reason to bar conspiracy liability when
the bribe-payor actively participates with the corrupt
official in the undisputed selling of his office.
Petitioner responds that a bribe-payor like Moreno
cannot simultaneously “occupy both roles”—that is,
27
cannot be both “a conspirator and the ‘another’ from
whom the conspirators wrongly obtain property.”
Pet. Br. 30. But that response simply begs the ques-
tion presented (7.e., whether “property from another”
may come from a participant in the conspiracy).
Rather than explaining the anomaly that his view
would create, petitioner simply reasserts that his view
is correct.
b. In addition, petitioner’s interpretation would
perversely penalize the government for alleging and
proving additional facts at trial. Under petitioner’s
reading, a public official who agrees with other
officials to receive a bribe from a private citizen would
be guilty of conspiracy. But if those same officials
also conspire with the bribe-payor, then no one is
guilty of conspiracy.
This case illustrates the point. If petitioner had
conspired solely with his fellow BPD officers, then
he would not dispute that all elements at issue—
including “property from another” and “with his
consent”—would be satisfied. But because the evi-
dence established that petitioner conspired “with
other Baltimore Police Department Officers * * * ,
and with Moreno and Mejia,” petitioner says that his
conviction was defective. J.A. 36 (emphasis added).
Under petitioner’s interpretation, the government
would have been better off charging and proving a
narrower conspiracy involving fewer participants.
There is no reason that a narrower conspiracy involv-
ing fewer participants should receive criminal pun-
ishment, while a broader one involving more partici-
pants receives none.
c. Petitioner’s theory would also create serious
conceptual problems in cases involving payments
28
drawn from artificial entities, such as businesses or
unions, that can act only through their agents. It may
be difficult in such cases to determine whose property
was “obtain[ed]” and with whose “consent.” See, e.g.,
United States v. Spitler, 800 F.2d 1267, 1269-1270 (4th
Cir. 1986) (corporation’s vice president authorized
gifts to public official purchased with company funds,
in return for official’s promise to approve company’s
fraudulent invoices). It is also unclear whether the
answer might depend on the particular entity’s form—
for instance, whether or not it is incorporated, or
whether it is owned or controlled by the bribe-payor—
even though those formalities have little to do with
culpability.°
4. Finally, petitioner’s reading would also create a
substantial loophole in conspiracy law, because many
federal criminal statutes use phrases like “from
another” or “to another.” For instance, a prohibition
on passing state secrets applies to a federal employee
who “obtains from another” any coded information
and who, without authorization, “willfully publishes or
furnishes to another” that information. 18 U.S.C. 952.
Imagine a State Department employee who forms an
illicit agreement to acquire coded information from a
Ukrainian spy and sell it to his contact in the Russian
government. Under petitioner’s interpretation, none
of the three participants in that scenario would face
° In this case, for example, Majestic was initially a limited liabil-
ity company but became a corporation while the kickback scheme
was in progress, C.A. App. 655-656, 736; J.A. 145, and the record
does not indicate who owned its stock. There is no reason to think
that Congress would have wanted petitioner’s criminal liability to
turn on the particular corporate form of the entity from which his
bribes were paid.
29
conspiracy liability: The conspirators would be inca-
pable of “obtain[ing] from another” or “furnish[ing] to
another.”
Petitioner’s theory would create the same gap in
several other criminal prohibitions. See, e.g., 18
U.S.C. 495 (forging contracts “for the purpose of
* * * enabling any other person” to receive money
from the United States) (emphasis added); 18 U.S.C.
500 (issuing a fake money order to “fraudulently en-
abl{[e] any other person” to obtain money from the
postal service) (emphasis added); 18 U.S.C. 1543
(forged passport that is “furnishe[d] to another for
use”) (emphasis added). Yet such crimes are fre-
quently committed through collusion. For instance, in
United States v. Zayyad, 741 F.3d 452 (4th Cir. 2014),
the defendant was convicted under Section 371 for
conspiring with a drug dealer to traffic in counterfeit
goods, in violation of 18 U.S.C. 2320, by supplying the
dealer with fake Viagra and Cialis. 741 F.3d at 456-
458. Since “the term ‘traffic’ means to transport,
transfer, or otherwise dispose of, to another,” 18
U.S.C. 2320(f)(5) (emphasis added), petitioner’s theory
would have precluded conspiracy liability.
C. Petitioner’s Other Arguments For Limiting Conspira-
cy Liability Are Unpersuasive
Petitioner’s non-textual arguments are based on
the premise that the government’s reading of the
Hobbs Act “would turn every payment of a bribe to a
public official into a conspiracy to commit extortion.”
Pet. Br. 18. That premise misunderstands the Act’s
consent requirement and runs counter to longstanding
principles of conspiracy law.
30
1. Obtaining property with another’s “consent” is not
equivalent to forming a conspiratorial agreement
Petitioner argues that the government’s reading of
the Hobbs Act “turns every act of receiving a bribe
into a conspiracy to commit extortion.” Pet. Br. 37
(capitalization altered). He begins by noting that the
Act requires property to be given with the bribe-
payor’s “consent.” 18 U.S.C. 1951(b)(2). According to
petitioner, that same consent will also “establish that
the bribe-payor and the public official agreed” to the
transaction, automatically making the bribe-payor a
co-conspirator to the extortion. Pet. Br. 37. Asa
consequence, he concludes, the Hobbs Act would be-
come a “broad prohibition on paying bribes,” id. at 31,
contrary to Congress’s choice elsewhere in the crimi-
nal code to attack bribery with precision, id. at 33-34
(citing 18 U.S.C. 201(b)(1), 210, 212(a), 226(a)(1), 666).
But petitioner errs in conflating the Act’s “consent”
requirement with the mens rea necessary to form a
conspiracy, which is a much higher threshold.
At common law, robbery was the obtaining of prop-
erty by the application of pressure “such as may over-
come the ordinary free will of a firm man.” James
Lindgren, The Elusive Distinction Between Bribery
and Extortion: From the Common Law to the Hobbs
Act, 35 UCLA L. Rev. 815, 881 (1988) (Lindgren)
(quoting King v. Southerton, 102 Eng. Rep. 1235, 1241
(1805)). In both the Field Code and New York penal
law, the taking from another was said to be accom-
plished “against his will.” Commissioners of the Code,
The Penal Code of the State of New York § 280, at 98
(1865) (Field Code); see N.Y. Penal Law § 224, at
68 (1881) (same). This was a stringent standard:
“(T]he physical power to resist [must be] overcome by
31
force, or what is equivalent in law, the moral power to
refuse [must be] prostrated by fear.” Field Code
§ 584 note, at 210.
Instances involving a lesser degree of coercion, by
contrast, qualified as extortion, in which the taking
was said to occur “with his consent.” Field Code
§ 613, at 220; see N.Y. Penal Law § 552, at 174 (1881)
(same). The difference between the two crimes was
understood to be one of degree. See Field Code § 584
note, at 211 (“Thus extortion partakes in an inferior
degree of the nature of robbery.”). The Hobbs Act
preserved the traditional distinction, with “th{e)
element of consent” continuing to serve as “the razor’s
edge that distinguishes extortion from robbery.”
United States v. Zhou, 428 F.3d 361, 371 (2d Cir.
2005); see United States v. Coppola, 671 F.3d 220, 240
(2d Cir. 2012) (“[T]he consent element serves * * * to
distinguish between two illegal means of so obtaining
property: extortion (with consent) and robbery (with-
out consent).”), cert. denied, 133 S. Ct. 843 (2013).
As used by the Hobbs Act, therefore, consent
simply indicates the taking of property under
circumstances falling short of robbery. But the pres-
ence of consent does not necessarily indicate a mutual
“agreement” between co-conspirators, which is “the
essential element of the crime” of conspiracy. /annel-
li v. United States, 420 U.S. 770, 777 n.10 (1975). That
much is made clear by the Act itself, which includes
coercive extortion, in which payment is made “with
[another’s} consent, induced by wrongful use of actual
or threatened force, violence, or fear.” 18 U.S.C.
1951(b)(2). No one would say that such a payment
signals the “collective criminal agreement” necessary
for a conspiracy. Callanan, 364 U.S. at 593. The
32
same is true in cases of “extortion accomplished by
fraud,” where property is taken “under a false pre-
tense of official right.” Evans, 504 U.S. at 269. Yet
clearly both types of extortion—coercive extortion and
extortion by fraud—may still occur “with consent”
from another. Petitioner is thus wrong to suggest
that, in every case of extortion, the participants will
automatically satisfy the mens rea for conspiracy.*
For the same reason, petitioner is also wrong that,
under the government’s approach, every bribe-payor
would be a co-conspirator. Consent is not equivalent
to conspiratorial agreement; that the payor gave his
“consent” means only that property changed hands
under conditions not amounting to robbery. In cases
where the payor is simply complying with an official
demand, for instance, no meeting of the minds would
occur. See Smith v. United States, 133 S. Ct. 714, 719
(2013) (“The essence of conspiracy is ‘the combination
of minds in an unlawful purpose.’”) (quoting United
States v. Hirsch, 100 U.S. 33, 34 (1879)). But where
the participants have “combined efforts * * * in
pursuance of [a] plan,” a genuine “partnership in crim-
* Petitioner also alludes to the rule that a defendant may not be
convicted of both the substantive crime and conspiracy “where the
agreement of two persons is necessary for the completion of the
substantive crime and there is no ingredient in the conspiracy
which is not present in the completed crime.” Pet. Br. 38 (quoting
Pinkerton, 328 U.S. at 643). But that rule, often referred to as
Wharton’s Rule, “applies only to offenses that require concerted
criminal activity,” Jannelli, 420 U.S. at 785, which Hobbs Act
extortion does not. The circumstances of this case would also fall
under the so-called third-party exception to Wharton’s Rule,
because “the conspiracy involves more persons than are required
for commission of the substantive offense.” /d. at 782 n.15.
33
inal purposes” would exist, Kissel, 218 U.S. at 608, and
they may be prosecuted for conspiracy.
2. An “active participation” requirement is consistent
with conspiracy principles
In accordance with the foregoing, the Fourth Cir-
cuit correctly recognized that “‘mere acquiescence’”
to an official demand “is not punishable under
conspiracy principles.” Pet. App. 20. Where a bribe-
payor “actively participates (rather than merely
acquiesces) in a conspiratorial extortion scheme,” by
contrast, he may face liability as a conspirator. /d.
at 22. Petitioner mischaracterizes this distinction as
“fabricated.” Pet. Br. 46. In fact, not only is the
distinction essential to the formation of a conspiracy,
it has deep roots in this Court’s conspiracy case law.
The Court first alluded to such a distinction in
Holte, supra, where the question was whether a
woman transported in violation of the Mann Act could
conspire with the man with whom she traveled be-
tween states. The trial court dismissed the indictment
against her, reasoning that “she was no party to [the
offense] but only the victim.” 236 U.S. at 144. This
Court disagreed. While acknowledging that “there
may be a degree of cooperation that would not amount
to a crime,” the Court declined to rule out in all cases
a conspiracy involving the woman being transported.
Id. at 144-145. For instance, if the woman “should
suggest and carry out [the] journey,” and if she
“should buy the railroad tickets, or should pay the
fare” for the trip, then a conspiracy might exist. /d. at
145. The Court therefore found “little reason for not
treating the preliminary agreement as a conspiracy
that the law can reach, if we abandon the illusion that
the woman always is the victim.” /bid.
34
The Court elaborated on this theme in Gebardi v.
United States, 287 U.S. 112 (1932), another prosecu-
tion for conspiracy to violate the Mann Act. There,
the Court stressed features of the statute that are
pertinent here as well:
Congress set out in the Mann Act to deal with cases
which frequently, if not normally, involve consent
and agreement on the part of the woman to the
forbidden transportation. In every case in which
she is not intimidated or forced into the transporta-
tion, the statute necessarily contemplates her ac-
quiescence. Yet this acquiescence, though an inci-
dent of a type of transportation specifically dealt
with by the statute, was not made a crime under
the Mann Acct itself.
[W]e perceive in the failure of the Mann Act to
condemn the woman’s participation in those trans-
portations which are effected with her mere con-
sent, evidence of an affirmative legislative policy to
leave her acquiescence unpunished.
Id. at 121, 123. In other words, where Congress has
chosen to criminalize only one half of a transaction
that typically involves consent or acquiescence, then
conspiracy liability should presumptively require a
higher level of coordinated activity. See id. at 119
(“In applying this criminal statute we cannot infer
that the mere acquiescence of the woman transported
was intended to be condemned by the general
language punishing those who aid and assist the
transporter.”).
The Gebardi Court accordingly held that a conspir-
acy could exist, but only if the woman’s role in the
crime was “more active than mere agreement on her
35
part” to the illegal transportation. 287 U.S. at 119.
Applying that test, it determined that the conspiracy
convictions at issue could not stand. The woman had
merely “consented” to her transportation across state
lines, the Court explained, but there was “no evidence
that she purchased the railroad tickets or that hers
was the active or moving spirit in conceiving or carry-
ing out the transportation.” /d. at 116-117.
The reasoning of Gebardi applies with full force to
Hobbs Act extortion, which shares two key features
with the Mann Act. First, the Hobbs Act penalizes
one half of a bilateral transaction—as petitioner
himself points out. See Pet. Br. 25-26, 32-34. Second,
at least in cases of public-official bribery, “the statute
necessarily contemplates [the] acquiescence” of the
bribe-payor. Gebardi, 287 U.S. at 121. In reliance on
these features, courts have construed the Hobbs Act
to permit liability for a bribe-payor whose conduct
was “more active than mere acquiescence” to an
extortionate demand. Spitler, 800 F.2d at 1276. In
Spitler, for instance, the Fourth Circuit upheld a
bribe-payor’s conviction for aiding and abetting extor-
tion because he had “created a symbiotic relationship
with [the public official] through which [he] and [his
employer], in exchange for subsequent payments to
[the official], would receive substantial financial bene-
fits from [the official’s] approval of [the employer’s]
false invoices.” Jd. at 1278. And in this case, the
Fourth Circuit applied the same reasoning to extor-
tionate conspiracies. Pet. App. 22-25."
" The jury instructions in this case “caution{ed] * * * that mere
knowledge or acquiescence, without participation in the unlawful
plan, [was] not sufficient” to “establish membership in the conspir-
acy.” J.A. 195.
36
The Fourth Circuit is not alone in applying Gebardi
to Hobbs Act extortion. For decades, lower courts
have permitted bribe-payors to face aiding-and-
abetting liability for actively participating in bribery
schemes. See, e.g., United States v. Cornier-Ortiz,
361 F.3d 29, 40 (1st Cir. 2004) (upholding conviction
for aiding and abetting extortion where “[t]he evi-
dence supported the conclusion that some sort of quid
pro quo arrangement was in place and that Cornier
did more than merely acquiesce to it”); United States
v. Wright, 797 F.2d 245, 252 (5th Cir. 1986) (“(Tyhe
evidence indicates that Wright did aid and abet [the
public official’s] extortion by actively inducing and
soliciting the payment to [the official].”), cert. denied,
481 U.S. 1013 (1987); United States v. Zeuli, 725 F.2d
813, 817 (1st Cir. 1984) (“We have been directed to no
place in the record that supports the contention that
Zeuli was a victim of the extortion rather than a
perpetrator of it.”); United States v. Marchan, 32
F. Supp. 3d 753, 764 (S.D. Tex. 2013) (“The evidence
was clear (and was practically uncontroverted) that
[the defendant] was actively and willingly involved in
this scheme and that he was not a victim.”); United
States v. Nelson, 486 F. Supp. 464, 490 (W.D. Mich.
1980) (“But the defendant in this case is more than
just a payor of extorted money. He is an initiator of
an extortion.”); see also United States v. Johnson, 337
F.2d 180, 196 (4th Cir. 1964) (upholding conviction for
aiding and abetting violation of conflict-of-interest
statute where defendants had “a far more active role”
than “merely as payers” of a bribe), cert. denied, 379
U.S. 988 (1965), 385 U.S. 846, and 385 U.S. 889 (1966).
Where a bribe-payor has merely acquiesced to an
official demand, by contrast, he will not be held liable
37
as an aider and abettor. See United States v. Tillem,
906 F.2d 814, 824 (2d Cir. 1990) (reversing conviction
for aiding and abetting extortion where defendant was
“a victim succumbing to a climate of unstated prereq-
uisites to doing business with particular public
officials” (citation omitted)).
Thus, the distinction between mere acquiescence
and active participation was not “made-up” by the
Fourth Circuit, as petitioner claims. Pet. Br. 3. To
the contrary, “[flinding culpability when a ‘victim’
goes beyond passive compliance and becomes an ac-
tive participant in a conspiracy has been a principle of
our common law from the turn-of-the-century.” Til-
lem, 906 F.2d at 822 (citing Holte).*
* This Court has applied similar reasoning in other contexts. In
Abuelhawa v. United States, 556 U.S. 816 (2009), the Court consid-
ered whether the prohibition on using a phone to “facilitate” drug
sales applied to a defendant who had merely purchased a small
quantity of drugs on his cell phone. /d at 818. The Court read the
prohibition on facilitation narrowly (to mean “‘aid’ and ‘abet’”)
rather than broadly (to mean “make a sale easier”) in recognition
that the use of phones is a common feature of almost any drug
transaction. Jd. at 820-822 (citing Gebardi). Similarly, in Direct
Sales Co. v. United States, 319 U.S. 703 (1943), the Court held that
a drug manufacturer would not face conspiracy liability for its
otherwise legal sale of a prescription drug to a physician merely
because the manufacturer knew that the physician intended to
resell the drug illegally. /d. at 712 & n.8. But if the manufacturer
“work{ed] in prolonged cooperation with a physician’s unlawful
purpose to supply him with his stock in trade for his illicit
enterprise, there [would be] no legal obstacle to finding that the
supplier not only knows and acquiesces, but joins both mgnd and
hand with him to make its accomplishment possible.” Id. at 713
(emphasis added); see ibid. (conspiracy liability permitted where
‘{tJhere is informed and interested cooperation, stimulation,
instigation”).
38
Petitioner asserts that the distinction is “unworka-
ble and hopelessly vague.” Pet. Br. 48. But he points
to no evidence that juries o1 judges have struggled
with it in the years since Gebardi, or that its applica-
tion has led to arbitrary or unjust results. “[{T]he trier
of fact is quite capable of deciding the intent with
which words were spoken or action taken as well as
the reasonable construction given to them by the
official and the payor.” Evans, 504 U.S. at 274
(Kennedy, J., concurring). And as to vagueness, this
Court recently found no reason to “doubt the constitu-
tionality of laws that call for the application of a quali-
tative standard * * * to real-world conduct; ‘the law
is full of instances where a man’s fate depends on his
estimating rightly some matter of degree.’” Johnson
v. United States, No. 13-7120 (June 26, 2015), slip op.
12 (alteration omitted) (quoting Nash v. United
States, 229 U.S. 373, 377 (1913)). Indeed, “[c]lose
cases can be imagined under virtually any statute.
The problem that poses is addressed, not by the
doctrine of vagueness, but by the requirement of
proof beyond a reasonable doubt.” United States v.
Williams, 553 U.S. 285, 306 (2008).
In enacting the Hobbs Act, Congress chose to
criminalize behavior that “obstructs, delays, or affects
commerce” by means of extortion. 18 U.S.C. 1951(a).
It also recognized that extortionate schemes involving
multiple participants can have just as great an
impact—if not greater—which is why it imposed liabil-
ity on anyone who “conspires so to do.” /bid. Where a
public official initiates extortion on his own, with only
the “mere acquiescence” of the bribe-payor, then the
official should alone face liability. Gebardi, 287 U.S.
at 119. But where (as here) a bribe-payor not only
39
acquiesced, but in fact “was the active or moving spirit
in conceiving or carrying out the” scheme, id. at 117,
there is no reason to doubt that Congress would deem
him to be just as culpable as any other conspirator.
3. The government's interpretation would not impose
liability on extortion “victims”
Another significant theme running throughout
petitioner’s brief is that the government seeks to turn
bribe-payors like Moreno and Mejia into “the victims
of their own conspiracy.” Pet. Br. 2. This allegedly
shows that the government’s interpretation must be
flawed: “A party cannot at the same time be both a
victim of an extortion conspiracy (the party who parts
with his rightful property) and also one of the conspir-
atorial extortionists (the party who conspires with
others to wrongly obtain possession of the same prop-
erty).” Jd. at 23-24; see, e.g., id. at 2 (according to
government, “to bribe an official is to conspire with
that official to victimize oneself”); id. at 17 (“It makes
no sense to say that the victim of the conspiracy * * *
is also a conspirator.”); id. at 18 (“victimize oneself”).
Petitioner’s argument overlooks the variety of ex-
tortionate schemes covered by official-right extortion.
The crime of extortion, which dates from at least the
reign of King Edward I, was traditionally viewed not
simply as a property crime, but as a transgression
directly against the sovereign: The offense was said
to be contra pacem domini regis—“a breach of the
King’s peace.” Lindgren 833. The word “extortion”
may call to mind the predations of a corrupt public
official who pressures hapless citizens into paying him
tribute, and the Hobbs Act undoubtedly covers such
behavior. See id. at 842, 850-851 (citing common law
cases). Yet the Act also undoubtedly covers “the
40
rough equivalent of what we would now describe as
‘taking a bribe.’” Evans, 504 U.S. at 260; see id. at
267 n.18 (“[B]ribery and extortion as used in the
Hobbs Act are not mutually exclusive.”) (citation, in-
ternal quotation marks, and brackets omitted). When
a public official commits extortion of this variety, by
selling official acts for private gain, the true “victim”
is the public. For as Blackstone explained, “extortion
is an abuse of public justice.” 4 William Blackstone,
Commentaries on the Laws of England 141 (1769); see
Wilkie, 551 U.S. at 564 (“[T]he crime of extortion
focused on the harm of public corruption, by the sale
of public favors for private gain.”). Petitioner’s de-
scription of the bribe-payor as “the victim of the con-
spiracy,” Pet. Br. 17, is thus at odds with “the core
idea” of the Hobbs Act—namely, that “extortion [i]s a
species of corruption.” Wilkie, 551 U.S. at 564 n.12.
The “victim” label is especially inappropriate when
the Hobbs Act is interpreted, consistent with Gebardi,
to impose conspiracy liability only where the bribe-
payor’s role in the transaction was “more active than
mere agreement.” 287 U.S. at 119. One who does not
merely acquiesce to an official demand, but instead
“was the active or moving spirit in conceiving or car-
rying out” an extortionate scheme, is no victim at all.
Id. at 117. In such cases, there is “little reason for not
treating the preliminary agreement as a conspiracy
that the law can reach, if we abandon the illusion that
the [bribe-payor] always is the victim.” Holte, 236
U.S. at 145.
This case vividly illustrates the point. Moreno and
Mejia recognized that partnering with BPD officers
would be “beneficial,” and they eagerly joined the
kickback scheme in order to increase business to
41
Majestic. J.A. 95-97. They also took an active role in
making the scheme work. Moreno consulted with
participating officers to select the cars that would be
most profitable to have in his shop. Pet. App. 7-9; J.A.
105-107. To convince insurance companies that dam-
aged vehicles had been rendered undrivable, Moreno
and Mejia created phony towing records. J.A. 152-
153. Moreno often caused additional damage to cars
to ensure maximum insurance reimbursement. J.A.
101-102, 107, 139. Insurance payments were deposited
directly into Majestic’s business account, which
Moreno used to pay officers; Mejia concealed those
payments on Majestic’s books as “advertising and
promotion.” J.A. 159; see J.A. 145-147, 149-151. Par-
ticipation in the kickback scheme was highly lucrative
for Moreno and Mejia, eventually resulting in more
than 90% of Majestic’s business. J.A. 96, 100, 127.
The record thus refutes any suggestion that the
shop’s owners were the “victims” of this scheme.
Indeed, at trial, petitioner’s counsel tried to convince
the jury that Moreno was its chief executive—that he
had “recruited most of the officers,” J.A. 127, and had
“corrupted a great number of Baltimore City police
officers,” J.A. 70. See C.A. App. 1226 (“Moreno, and
to a lesser extent, his brother, Edwin Mejia, were
clearly involved in this conspiracy up to their ears to
get policemen to refer cars to them.”). Having partic-
ipated as full partners in the kickback scheme, More-
no and Mejia were petitioner’s co-conspirators, not his
victims. See J.A. 66 (“That’s why kickback schemes
are successful. Everybody gets what they want.”).
42
4. “Principles of federalism and lenity” do not justify
petitioner’s approach
Finally, petitioner appeals to “principles of federal-
ism and lenity.” Pet. Br. 42 (capitalization altered).
Neither assists him.
a. Petitioner’s federalism argument is premised on
two errors: first, that “there is no plausible textual
support for the government’s theory”; and second,
that the government’s “Hobbs Act interpretation
w{ould] transform every payment of a bribe to a state
or local official into a federal conspiracy to commit
extortion.” Pet. Br. 43. For the reasons explained
above, he is wrong on both counts. A proper reading
of the Hobbs Act would not turn the statute into a
general prohibition on paying bribes. Moreover,
Congress expressly contemplated that some acts of
extortion would be made possible by conspiratorial
agreements, and it determined that they should be
punished. See 18 U.S.C. 1951(a) (“Whoever * * *
conspires so to do”). Petitioner offers no reason to
believe that his agreement with Moreno and Mejia to
facilitate the kickback scheme lay outside Congress’s
concern.
b. Petitioner’s reliance on the rule of lenity fares
no better. That rule applies only when a criminal
statute contains a “grievous ambiguity or uncertain-
ty.” Muscarello v. United States, 524 U.S. 125, 139
(1998) (citation omitted). Neither “[t]he mere possi-
bility of articulating a narrower construction,” Smith
v. United States, 508 U.S. 223, 239 (1993), nor the
“existence of some statutory ambiguity” is “sufficient
to warrant application of that rule,” Muscarello, 524
U.S. at 138. Instead, the rule applies “only if, after
seizing everything from which aid can be derived,” the
43
Court “can make no more than a guess as to what
Congress intended.” /bid. (citation and internal quo-
tation marks omitted). For the reasons described
above, petitioner’s conspiracy conviction is consistent
with the best reading of the statute and with
longstanding principles of conspiracy law.
D. Petitioner Also Conspired With Other BPD Officers,
Not Only With Moreno And Mejia
Even if petitioner were correct that, in a Hobbs Act
conspiracy, there must be an agreement among
conspirators other than the bribe-payor, such
an agreement existed in this case. As the court of
appeals recognized, petitioner’s argument “is factually
flawed, in that it relies on an evidentiary premise—
that his only coconspirators were Moreno and Mejia—
that is entirely at odds with the record.” Pet. App. 25
n.14. In fact, the indictment against petitioner
alleged, and evidence at trial proved, “a wide-ranging
conspiracy involving dozens of BPD officers.” /bid.
The Superseding Indictment alleged that petition-
er “did knowingly and unlawfully combine, conspire,
confederate, and agree together, with other Baltimore
Police Department Officers,” as well as with Moreno
and Mejia. J.A. 36; see ibid. (“It was a purpose of the
conspiracy for Moreno and Mejia to enrich over 50
BPD Officers, including the defendants.”). The trial
evidence showed that petitioner learned of the kick-
back scheme from another BPD officer, most likely
Officer Rodriguez, who was indicted along with peti-
tioner but pleaded guilty. J.A. 28, 111-114; Pet. App.
7. After Officer Rodriguez told petitioner about the
kickback scheme, he and petitioner worked together
on at least one occasion, during which petitioner
helped Officer Rodriguez and Moreno collect a vehicle
44
from an accident scene. J.A. 119-123; see J.A. 122
(petitioner and Officer Rodriguez “pretend[ed] that
they didn’t know each other” at the scene); see also
Pet. App. 8-9 & n.7. Petitioner also recruited other
officers and brought them in on the scheme. J.A. 125-
127, 129-130, 137-138, 172-173. Given all this evidence,
“the jury was entitled to find [other participating]
BPD officers to be [petitioner’s}] coconspirator[s].”
Pet. App. 25 n.14.
Petitioner says that “the government’s theory at
trial was that Moreno and Mejia were petitioner’s
co-conspirators.” Pet. Br. 10. That formulation is
incomplete at best. Although the government
stressed petitioner’s ties to the shop’s owners, it also
emphasized petitioner’s ties to other officers:
“[TJhere are other police officers that you heard about
that you also can consider their conduct in determin-
ing whether they were part of the conspiracy and
whether there was a conspiracy.” J.A. 197 (emphasis
added). Indeed, it is hard to imagine how the jury
could believe that petitioner committed extortion—as
it obviously did, having convicted him on three
counts—yet not believe that he participated in the
scheme along with other officers.
The indictment and trial evidence thus supported
convicting petitioner of participating in a factually
lesser-included conspiracy involving only BPD offic-
ers. Cf. United States v. Miller, 471 U.S. 130, 185, 145
(1985) (where indictment can be read to cover a fraud-
ulent scheme that is “much narrower than, though
included within, the scheme that the grand jury had
alleged,” defendant may be convicted of that narrower
scheme). Similarly, any error in the jury instructions
would have been harmless. Cf. Skilling v. United
45
States, 561 U.S. 358, 414 & n.46 (2010) (harmless-error
analysis applies “when a jury is instructed on alterna-
tive theories of guilt,” one of which is “legally invalid,”
and the jury returns a general verdict). Even if
petitioner were correct about the question presented,
therefore, his conspiracy conviction should neverthe-
less be affirmed.
CONCLUSION
The judgment of the court of appeals should be affirmed.
Respectfully submitted.
DONALD B. VERRILLI, JR.
Solicitor General
LESLIE R. CALDWELL
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
ALLON KEDEM
Assistant to the Solicitor
General
STEPHAN E. OESTREICHER, JR.
Attorney
JULY 2015
APPENDIX
1. 18U.S.C. 371 provides:
Conspiracy to commit offense or to defraud United
States
If two or more persons conspire either to commit
any offense against the United States, or to defraud
the United States, or any agency thereof in any man-
ner or for any purpose, and one or more of such per-
sons do any act to effect the object of the conspiracy,
each shall be fined under this title or imprisoned not
more than five years, or both.
If, however, the offense, the commission of which is
the object of the conspiracy, is a misdemeanor only,
the punishment for such conspiracy shall not exceed
the maximum punishment provided for such misde-
meanor.
(la)
2a
2. 18 U.S.C. 1951 provides:
Interference with commerce by threats or violence
(a) Whoever in any way or degree obstructs, de-
lays, or affects commerce or the movement of any
article or commodity in commerce, by robbery or ex-
tortion or attempts or conspires so to do, or commits
or threatens physical violence to any person or prop-
erty 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.
(b) As used in this section—
(1) The term “robbery” means the unlawful tak-
ing or obtaining of personal property from the per-
son 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 posses-
sion, 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.
(2) The term “extortion” means 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.
(3) The term “commerce” means commerce
within the District of Columbia, or any Territory or
Possession of the United States; all commerce be-
tween any point in a State, Territory, Possession, or
3a
the District of Columbia and any point outside
thereof; all commerce between points within the
same State through any place outside such State;
and all other commerce over which the United
States has jurisdiction.
(c) This section shall not be construed to repeal,
modify or affect section 17 of Title 15, sections 52,
101-115, 151-166 of Title 29 or sections 151-188 of Title
45.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.