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SUPREME COURT OF THE UNITED STATES
GIRIDHAR C. SEKHAR, PETITIONER v. UNITED
on writ of certiorari to the united states
court of appeals for the second circuit
[June 26, 2013]
delivered the opinion of the Court.
We consider whether
attempting to compel a person to recommend that his employer
approve an investment con- stitutes “the obtaining of
property from another” under 18 U. S. C.
Common Retirement Fund is an employee pension fund for the State of
New York and its local governments. As sole trustee of the Fund,
the State Comptroller chooses Fund investments. When the
Comptroller decides to approve an investment he issues a
“Commitment.” A Commitment, however, does not actually
bind the Fund. For that to happen, the Fund and the recipient of
the investment must enter into a limited partnership agreement. 683
F. 3d 436, 438 (CA2 2012).
Sekhar was a managing partner of FA Technology Ventures. In October
2009, the Comptroller’s office was considering whether to
invest in a fund managed by that firm. The office’s general
counsel made a written recommendation to the Comptroller not to
invest in the fund, after learning that the Office of the New York
Attorney General was investigating another fund managed by the
firm. The Comptroller decided not to issue a Commitment and
notified a partner of FA Technology Ventures. That partner had
previously heard rumors that the general counsel was having an
The general counsel
then received a series of anony- mous e-mails demanding that he
recommend moving for- ward with the investment and threatening, if
he did not, to disclose information about his alleged affair to his
wife, government officials, and the media. App. 59–61. The
general counsel contacted law enforcement, which traced some of the
e-mails to petitioner’s home computer and other e-mails to
offices of FA Technology Ventures.
Petitioner was indicted
for, and a jury convicted him of, attempted extortion, in violation
of the Hobbs Act, 18 U. S. C. §1951(a). That Act
subjects a person to criminal liability if he “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.” §1951(a). The Act
defines “extortion” to mean “the obtaining of
property from another, with his consent, induced by wrongful use of
actual or threatened force, violence, or fear, or under color of
official right.” §1951(b)(2). [ 1
] On the verdict form, the jury was asked to specify
the property that petitioner attempted to extort: (1) “the
Commitment”; (2) “the Comptroller’s approval of
the Commitment”; or (3) “the General Counsel’s
recommendation to approve the Commitment.” App.
141–142. The jury chose only the third option.
The Court of Appeals
for the Second Circuit affirmed the conviction. The court held that
the general counsel “had a property right in rendering sound
legal advice to the Comptroller and, specifically, to
recommend—free from threats—whether the Comptroller
should issue a Commitment for [the funds].” 683 F. 3d,
at 441. The court concluded that petitioner not only attempted to
deprive the general counsel of his “property right,”
but that petitioner also “attempted to exercise that right by
forcing the General Counsel to make a recommendation determined by
[petitioner].” Id., at 442.
We granted certiorari.
568 U. S. ___ (2013).
Whether viewed from the
standpoint of the common law, the text and genesis of the statute
at issue here, or the jurisprudence of this Court’s prior
cases, what was charged in this case was not extortion.
It is a settled
principle of interpretation that, absent other indication,
“Congress intends to incorporate the well-settled meaning of
the common-law terms it uses.” Neder v. United States, 527
U. S. 1, 23 (1999) .
“[W]here Congress borrows terms of
art in which are accumulated the legal tradition and meaning of
centuries of practice, it presumably knows and adopts the cluster
of ideas that were attached to each borrowed word in the body of
learning from which it was taken and the meaning its use will
convey to the judicial mind unless otherwise instructed.”
Morissette v. United States, 342 U. S. 246, 263 (1952) .
Or as Justice Frankfurter colorfully put it,
“if a word is obviously transplanted from another legal
source, whether the common law or other legislation, it brings the
old soil with it.” Some Reflections on the Reading of
Statutes, 47 Colum. L. Rev. 527, 537 (1947).
The Hobbs Act punishes
“extortion,” one of the oldest crimes in our legal
tradition, see E. Coke, The Third Part of the Institutes of the
Laws of England 148–150 (1648) (reprint 2008). The crime
originally applied only to extortionate action by public officials,
but was later extended by statute to private extortion. See 4 C.
Torcia, Wharton’s Criminal Law §§695, 699 (14th ed.
1981). As far as is known, no case predating the Hobbs
Act—English, federal, or state—ever identified conduct
such as that charged here as extortionate. Extortion required the
obtaining of items of value, typically cash, from the victim. See,
e.g., People v. Whaley, 6 Cow. 661 (N. Y. Sup. Ct. 1827)
(justice of the peace properly indicted for extorting money);
Commonwealth v. Bagley, 24 Mass. 279 (1828) (officer properly
convicted for demanding a fee for letting a man out of prison);
Commonwealth v. Mitchell, 66 Ky. 25 (1867) (jailer properly
indicted for extorting money from pris- oner); Queen v. Woodward,
11 Mod. 137, 88 Eng. Rep. 949 (K. B. 1707) (upholding
indictment for extorting “money and a note”). It did
not cover mere coercion to act, or to refrain from acting. See,
e.g., King v. Burdett, 1 Ld. Raym. 149, 91 Eng. Rep. 996
(K. B. 1696) (dictum) (extortion consisted of the
“taking of money for the use of the stalls,” not the
deprivation of “free liberty to sell [one’s] wares in
the market according to law”).
The text of the statute
at issue confirms that the alleged property here cannot be
extorted. Enacted in 1946, the Hobbs Act defines its crime of
“extortion” as “the ob- taining 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) (emphasis
added). Obtaining property requires “not only the deprivation
but also the acquisition of property.” Scheidler v. National
Organization for Women, Inc., 537 U. S. 393, 404 (2003)
(citing United States v. Enmons, 410 U. S. 396, 400 (1973) ).
That is, it requires that the victim “part with” his
property, R. Perkins & R. Boyce, Criminal Law 451 (3d ed.
1982), and that the extortionist “gain possession” of
it, Scheidler, supra, at 403, n. 8; see also Webster’s
New International Dictionary 1682 (2d ed. 1949) (defining
“obtain”); Murray, Note, Protesters, Extortion, and
Coercion: Preventing RICO from Chilling First Amendment Freedoms,
75 Notre Dame L. Rev. 691, 706 (1999) (Murray). The property
extorted must therefore be transferable—that is, capable of
passing from one person to another. The alleged property here lacks
that defining feature. [ 2
The genesis of the
Hobbs Act reinforces that conclusion. The Act was modeled after
§850 of the New York Penal Law (1909), which was derived from
the famous Field Code, a 19th-century model penal code, see 4
Commissioners of the Code, Penal Code of the State of New York
§613, p. 220 (1865) (reprint 1998). Congress borrowed,
nearly verbatim, the New York statute’s definition of
extortion. See Scheidler, 537 U. S., at 403. The New York
statute contained, in addition to the felony crime of extortion, a
new (that is to say, nonexistent at common law) misdemeanor crime
of coercion. Whereas the former required, as we have said,
“ ‘the criminal acquisition of . . .
property,’ ” ibid., the latter required merely the
use of threats “to compel another person to do or to abstain
from doing an act which such other such person has a legal right to
do or to abstain from doing.” N. Y. Penal Law §530
(1909), earlier codified in N. Y. Penal Code §653 (1881).
Congress did not copy the coercion provision. The omission must
have been deliberate, since it was perfectly clear that extortion
did not include coercion. At the time of the borrowing (1946), New
York courts had consistently held that the sort of interference
with rights that occurred here was coercion. See, e.g., People v.
Ginsberg, 262 N. Y. 556, 188 N. E. 62 (1933) (per curiam)
(compelling store owner to become a member of a trade association
and to remove advertisements); People v. Scotti, 266 N. Y.
480, 195 N. E. 162 (App. Div. 1934) (compelling victim to
enter into agreement with union); People v. Kaplan, 240 App. Div.
72, 74–75, 269 N. Y. S. 161, 163–164,
aff’d, 264 N. Y. 675, 191 N. E. 621 (1934)
(compelling union members to drop lawsuits against union
leadership). [ 3
And finally, this
Court’s own precedent similarly demands reversal of
petitioner’s convictions. In Scheidler, we held that
protesters did not commit extortion under the Hobbs Act, even
though they “interfered with, disrupted, and in some
instances completely deprived” abortion clinics of their
ability to run their business. 537 U. S., at 404–405. We
reasoned that the protesters may have deprived the clinics of an
“alleged property right,” but they did not pursue or
receive “ ‘something of value
from’ ” the clinics that they could then
“exercise, transfer, or sell” themselves. Id., at 405.
The opinion supported its holding by citing the three New York
coercion cases discussed above. See id., at 405–406.
This case is easier
than Scheidler, where one might at least have said that physical
occupation of property amounted to obtaining that property. The
deprivation alleged here is far more abstract. Scheidler rested its
decision, as we do, on the term “obtaining.” Id., at
402, n. 6. The principle announced there—that a
defendant must pursue something of value from the victim that can
be exercised, transferred, or sold—applies with equal force
here. [ 4
] Whether one
considers the personal right at issue to be “property”
in a broad sense or not, it certainly was not obtainable property
under the Hobbs Act. [ 5
Government’s shifting and imprecise characterization of the
alleged property at issue betrays the weakness of its case.
According to the jury’s verdict form, the
“property” that petitioner attempted to extort was
“the General Counsel’s recommendation to approve the
Commitment.” App. 142. But the Government expends minuscule
effort in defending that theory of conviction. And for good
reason—to wit, our decision in Cleveland v. United States,
531 U. S. 12 (2000) , which reversed a business owner’s
mail-fraud conviction for “obtaining money or property”
through misrepresentations made in an application for a video-poker
license issued by the State. We held that a “license”
is not “property” while in the State’s hands and
so cannot be “obtained” from the State. Id., at
20–22. Even less so can an employee’s yet-to-be-issued
recommendation be called obtainable property, and less so still a
yet-to-be-issued recommendation that would merely ap- prove (but
not effect) a particular investment.
Government’s reliance on an alternative, more sophisticated
(and sophistic) description of the property. Instead of defending
the jury’s description, the Gov- ernment hinges its case on
the general counsel’s “intangible property right to
give his disinterested legal opinion to his client free of improper
outside interference.” Brief for United States 39. But what,
exactly, would the petitioner have obtained for himself? A right to
give his own disinterested legal opinion to his own client free of
improper interference? Or perhaps, a right to give the general
counsel’s disinterested legal opinion to the general
sounds absurd, because it is. Clearly, petitioner’s goal was
not to acquire the general coun- sel’s “intangible
property right to give disinterested legal advice.” It was to
force the general counsel to offer advice that accorded with
petitioner’s wishes. But again, that is coercion, not
extortion. See Murray 721–722. No fluent speaker of English
would say that “petitioner obtained and exercised the general
counsel’s right to make a recommendation,” any more
than he would say that a person “obtained and exercised
another’s right to free speech.” He would say that
“petitioner forced the general counsel to make a particular
recommendation,” just as he would say that a person
“forced another to make a statement.” Adopting the
Government’s theory here would not only make nonsense of
words; it would collapse the longstanding distinction between
extortion and coercion and ignore Congress’s choice to
penalize one but not the other. See Scheidler, supra, at 409. That
we cannot do.
The judgment of the
Court of Appeals for the Second Circuit is reversed.
It is so ordered.