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Mixed-Up Majority Upholds Cop's Conspiracy Conviction -- Barely

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By Casey C. Sullivan, Esq. on May 02, 2016 3:57 PM

It was an unusual alignment of justices that came together to uphold the extortion conspiracy conviction of a former Baltimore police officer today. Samuel Ocasio, the Baltimore cop, had been convicted of extortion and conspiracy to commit extortion under the Hobbs Act for his role in an auto-repair kickback scheme. That conviction can stand, the Supreme Court ruled, rejecting arguments that a conspiracy to extort must involve taking property from someone outside the conspiracy, rather than willing participants in a scheme.

But not only was the Court's majority a rare combination of justices, it was a tenuous one at that.

Cash for Clunkers

Ocasio was one of several Baltimore police officers caught in a kickback scheme with Majestic Auto Repair Shop, in suburban Rosedale, Maryland. When responding to accidents, Ocasio and other officers would send motorists to Majestic, in exchange for $150 to $300 per referral.

After the deal was discovered in 2011, Ocasio was convicted of three counts of extortion and one count of conspiracy to commit extortion -- or, as the Hobbs Acts phrases it, "obtaining the property from another ... under color of official right."

An Unusual Pairing

Justices Alito, Kennedy, Ginsburg, Breyer, and Kagan came together to uphold the conviction -- an atypical mix of justices on the majority. (As Jonathan Adler points out on the Volokh Conspiracy, other "unusual divisions" of the justices can be seen in this term's rulings in Luis v. United States and Bank Markazi v. Peterson.)

In an opinion authored by Justice Alito, the Court rejected Ocasio's arguments that a conspiracy to violate the Hobbs Act must involve extorting someone outside the conspiracy. That's not necessary, the Court explained, holding that "the basic principles of conspiracy law" resolved the case -- a conspiracy conviction under the Hobbs Act can stand so long as the conspirators agreed to commit the crime.

It was a straight-forward approach to the conspiracy question. But, as the two dissents and one concurrence made clear, the real problems were with the underlying crime -- how the Hobbs Act's prohibition on extortion can be applied to what most would consider simply bribery.

It's Bribery, but We'll Call It Extortion

But that 5-3 majority was a slim one. As the majority noted, "The subtext of these arguments is that it seems unnatural to prosecute bribery on the basis of a statute prohibiting 'extortion,'" a reading of the Hobbs Act adopted in Evans v. United States, where the Court held that extortion encompassed the "rough equivalent of what we would now describe as taking a bribe."

Justice Thomas took Evans on directly in his dissent. Evans disregarded the meaning of "under color of official right," Justice Thomas argued, which requires the money or property received to have been claimed under a false pretense of official right. Wrongful seizure of property by the government would count. Bribery would not.

And Justice Thomas almost had someone on his side. (We haven't run the numbers lately, but we're guessing Justice Thomas has written more solitary, unjoined dissents than any other Supreme Court justice ever.)

In his concurrence, Justice Breyer noted that he agreed "with the sentiment" that Evans "may well have been wrongly decided." Was Evans not good law, Breyer noted, he may have ruled differently. But Evans is good law, for the time being, forcing him to join the majority.

A Conspiracy Without a Victim?

Justice Sotomayor, joined by Chief Justice Roberts, also issued a dissent, this time focused on the language of the Hobbs Act, rather than Evans. As Justice Sotomayor notes, the Hobbs Act requires extortion of the property of "another:"

If a group of conspirators sets out to extort "another" person, we ordinarily think that they are proposing to extort money or property from a victim outside their group, not one of themselves. Their group is the conspiratorial entity and the victim is "another" person.

Under the majority's reading of the act, the requirement to obtain property from another person can be met simply when conspirators "agree only to transfer property among themselves."

"That is not a natural or logical way to interpret" the act, Justice Sotomayor argued. But it was enough to sway the majority of the Court, just barely.

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