Sekhar v. United States
570 U.S. ___ (2013)

Annotate this Case



No. 12–357



on writ of certiorari to the united states court of appeals for the second circuit

[June 26, 2013]

     Justice Alito, with whom Justice Kennedy and Jus-tice Sotomayor join, concurring in the judgment.

     The question that we must decide in this case is whether “the General Counsel’s recommendation to approve the Commitment,” App. 142—or his right to make that recommendation—is property that is capable of being ex-torted under the Hobbs Act, 18 U. S. C. §1951. In my view, they are not.


     The jury in this case returned a special verdict form and stated that the property that petitioner attempted to extort was “the General Counsel’s recommendation to approve the Commitment.” What the jury obviously meant by this was the general counsel’s internal suggestion to his superior that the state government issue a nonbinding commitment to invest in a fund managed by FA Technology Ventures. We must therefore decide whether this nonbinding internal recommendation by a salaried state employee constitutes “property” within the meaning of the Hobbs Act, which defines “extortion” as “the obtaining of property from another, with his con- sent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” §1951(b)(2).

     The Hobbs Act does not define the term “property,” but even at common law the offense of extortion was understood to include the obtaining of any thing of value. 2 E. Coke, The First Part of the Institutes of the Laws of England 368b (18th English ed. 1823) (“Extortion . . . is a great misprison, by wresting or unlawfully taking by any officer, by colour of his office, any money or valuable thing of or from any man”); 4 W. Blackstone, Commentaries *141 (extortion is “an abuse of public, justice which consists in any officer’s unlawfully taking, by colour of his office, from any man, any money or thing of value”). See also 2 J. Bishop, Criminal Law §401, pp. 331–332 (9th ed. 1923) (“In most cases, the thing obtained is money. . . . But probably anything of value will suffice”); 3 F. Wharton, A Treatise on Criminal Law §1898, p. 2095 (11th ed. 1912) (“[I]t is enough if any valuable thing is received”).

     At the time Congress enacted the Hobbs Act, the contemporary edition of Black’s Law Dictionary included an expansive definition of the term. See Black’s Law Dictionary 1446 (3d ed. 1933). It stated that “[t]he term is said to extend to every species of valuable right and interest. . . . The word is also commonly used to denote everything which is the subject of ownership, corporeal or incorporeal, tangible or intangible, visible or invisible, real or personal; everything that has an exchangeable value or which goes to make up wealth or estate.” Id., at 1446–1447. And the lower courts have long given the term a similarly expansive construction. See, e.g., United States v. Tropiano, 418 F. 2d 1069, 1075 (CA2 1969) (“The concept of prop-erty under the Hobbs Act . . . includes, in a broad sense, any valuable right considered as a source or element of wealth”).

     Despite the breadth of some of these formulations, however, the term “property” plainly does not reach everything that a person may hold dear; nor does it extend to everything that might in some indirect way portend the possibility of future economic gain. I do not suggest that the current lower court case law is necessarily correct, but it seems clear that the case now before us is an outlier and that the jury’s verdict stretches the concept of property beyond the breaking point.

     It is not customary to refer to an internal recommendation to make a government decision as a form of property. It would seem strange to say that the government or its employees have a property interest in their internal recommendations regarding such things as the issuance of a building permit, the content of an environmental impact statement, the approval of a new drug, or the indictment of an individual or a corporation. And it would be even stranger to say that a private party who might be affected by the government’s decision can obtain a property interest in a recommendation to make the decision. See, e.g., Doyle v. University of Alabama, 680 F. 2d 1323, 1326 (CA11 1982) (“Doyle had no protected property interest in the mere recommendation for a raise; thus she was not entitled to due process safeguards when the recommended raise was disapproved by the University”).

     Our decision in Cleveland v. United States, 531 U. S. 12 (2000) , supports the conclusion that internal recommendations regarding government decisions are not property. In Cleveland, we vacated a business owner’s conviction under the federal mail fraud statute, 18 U. S. C. §1341, for “obtaining money or property” through misrepresentations made in an application for a video poker license issued by the State. We held that a video poker license is not property in the hands of the State. Cleveland, supra, at 15. I do not suggest that the concepts of property under the mail fraud statute and the Hobbs Act are necessarily the same. But surely a video poker license has a stronger claim to be classified as property than a mere internal recommendation that a state government take an initial step that might lead eventually to an investment that would be beneficial to private parties.

     The Government has not cited any Hobbs Act case holding that an internal recommendation regarding a gov-ernment decision constitutes property. Nor has the Government cited any other example of the use of the term “property” in this sense.*

     The Second Circuit recharacterized the property that petitioner attempted to obtain as the general counsel’s “right to make a recommendation consistent with his legal judgment.” 683 F. 3d 436, 442 (2012). And the Government also presses that theory in this Court. Brief for United States 15, 34–45. According to the Government, the general counsel’s property interest in his recommendation encompasses the right to make the recommendation. Id., at 35–36. But this argument assumes that the recommendation itself is property. See id., at 35 (the general counsel’s “ ‘recommendation’ and his ‘right to make the recommendation’ are merely different expressions of the same property”). If an internal recommendation regarding a government decision does not constitute property, then surely a government employee’s right to make such a recommendation is not property either (nor could it be deemed a property right).


     The Government argues that the recommendation was the general counsel’s personal property because it was inextricably related to his right to pursue his profession as an attorney. See id., at 34–35. But that argument is clearly wrong: If the general counsel had left the State’s employ before submitting the recommendation, he could not have taken the recommendation with him, and he certainly could not have given it or sold it to someone else. Therefore, it is obvious that the recommendation (and the right to make it) were inextricably related to the general counsel’s position with the government, and not to his broader personal right to pursue the practice of law.

     The general counsel’s job surely had economic value to him, as did his labor as a lawyer, his law license, and his reputation as an attorney. But the indictment did not allege, and the jury did not find, that petitioner attempted to obtain those things. Nor would such a theory make sense in the context of this case. Petitioner did not, for example, seek the general counsel’s legal advice or demand that the general counsel represent him in a legal proceeding. Cf. United States v. Thompson, 647 F. 3d 180, 186–187 (CA5 2011) (a person’s labor is property capable of being extorted). Nor did petitioner attempt to enhance his own ability to compete with the general counsel for legal work by threatening to do something that would, say, tarnish the general counsel’s reputation or cause his law license to be revoked. Cf. Tropiano, 418 F. 2d, at 1071–1072, 1075–1077 (threats to competitor in order to obtain customers constitute extortion); United States v. Zemek, 634 F. 2d 1159, 1173–1174 (CA9 1980) (same); United States v. Coffey, 361 F. Supp. 2d 102, 108–109 (EDNY 2005) (the right to pursue a lawful business is extortable property under the Hobbs Act).

     The Court holds that petitioner’s conduct does not amount to attempted extortion, but for a different reason: According to the Court, the alleged property that petitioner pursued was not transferrable and therefore is not capable of being “obtained.” Ante, at 4–5, 7–8. Because I do not believe that the item in question constitutes prop-erty, it is unnecessary for me to determine whether or not petitioner sought to obtain it.

*  *  *

     If Congress had wanted to classify internal recommendations pertaining to government decisions as property, I think it would have spoken more clearly than it did in the Hobbs Act. But even if the Hobbs Act were ambiguous on this point, the rule of lenity would counsel in favor of an interpretation of the statute that does not reach so broadly, see Scheidler v. National Organization for Women, Inc., 537 U. S. 393, 409 (2003) . This is not to say that the Government could not have prosecuted petitioner for ex-tortion on these same facts under some other theory. The question before us is whether the general counsel’s recommendation—or the right to make it—constitutes property under the Hobbs Act. In my view, they do not.

     For these reasons, I concur in the Court’s judgment.


1 * To recognize that an internal recommendation regarding a government decision is not property does not foreclose the possibility that threatening a government employee, as the government’s agent, in order to secure government property could qualify as Hobbs Act extortion. Here, after all, petitioner’s ultimate goal was to secure an investment of money from the government. But the jury found only that petitioner had attempted to obtain the general counsel’s recommendation, so I have no occasion to consider whether a Hobbs Act conviction could have been sustained on a different legal theory.

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