Hobbs Act extortion under color of official right does not require duress

In United States v. Buffis,(1) the First Circuit addressed whether a government official must wrongfully use actual or threatened force, violence, or fear to be convicted of Hobbs Act extortion under color of official right. The appellant, the former Chief of Police for Lee, Massachusetts,(2) challenged the sufficiency of the evidence to support his conviction for taking money in order to drop claims against two individuals accused of operating a house of ill repute, claiming that he could not be convicted as the two individuals were “comfortable” paying the funds.(3) The First Circuit held that extortion under color of official right is a prong separate from the “fear” prong, so when a government official receives a payment in an official capacity, “it need not prove that the official induced the payment through fear.”(4)

Background Facts

The appellant was charged with extortion for making a deal to drop charges against two individuals charged with prostitution in exchange for a payment of $4,000 to a charity run by the police department (and from which the appellant paid personal expenses). When the police first raided the inn, one of the individuals admitted to the prostitution and offered to donate the proceeds to charity in order to avoid the charges. The police initially refused the offer. However, when the appellant became involved, he decided that he would accept payment to clear the individuals.

To secure the deal, the appellant presented an “Accord & Satisfaction” to the two individuals at a scheduled court appearance. The two individuals signed the document, paid the $4,000 to the charity, and the appellant dropped the charges.

The clerk-magistrate assigned to the matter questioned the decision to drop the charges, and the district attorney’s office agreed, asking the Massachusetts State Police to investigate. After the investigation, a grand jury indicted the appellant for several charges, including Hobbs Act extortion under color of official right. At trial, the appellant was acquitted of all charges except Hobbs Act extortion under color of official right. He appealed.

Analysis

In order to be convicted of Hobbs Act extortion, the government must prove that an individual “obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires to do so.”(5) The government must prove that an individual “obtain[ed] property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.”(6)

Where, as here, the government seeks to convict on the “under color of official right” prong, it can do so by “showing that the defendant ‘obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts.’”(7)

The crux of the appellant’s argument on appeal was that, as the two individuals accused of prostitution signed the “Accord & Satisfaction” agreement voluntarily, without coercion, and had originally suggested payment of the prostitution proceeds to a charity in order to dismiss the claims, the appellant could not be guilty of extortion. However, the First Circuit found that courts have previously rejected both claims.

As to the first argument, the court pointed to Evans v. United States.(8) There, the Supreme Court stated that “an element of duress such as a demand” is not an element of Hobbs Act extortion under color of official right. As a result, the First Circuit court held that “where the government presents evidence that the government official received a payment under color of official right, it need not prove that the official induced the payment through fear.”(9)

As to the appellant’s second argument that an extortion claim could not stand because the two individuals were the ones to suggest payment of proceeds to a charity, the First Circuit held that "t is immaterial that [the two individuals charged with prostitution] approached the police first."(10) Extortion can clearly occur even when the payer"approach[es] [the public official] first" or when the payer shows a "readiness and even eagerness to play the game."(11)

Conclusion

The decision of the First Circuit is one that is consistent through the different federal circuits, in that public officials need not use “actual or threatened force, violence, or fear” to obtain money in order to be convicted with extortion under the Hobbs Act.(12) It is important to note, however, that significant questions remain as to what “under color of official right” means. The Hobbs Act does not define this phrase, so practitioners representing government officials should focus on that uncertainty rather than whether any threat was used to obtain money.

(1), --- F.3d ---, 2017 WL 3473600 (1st Cir. Aug. 14, 2017). (2)18 U.S.C. § 1951(a). (3)Buffis, at *1. (4)Id., at *5 (5)18 U.S.C. § 1951(a). (6)18 U.S.C. § 1951(b)(2). (7)Buffis, at *3, quoting United States v. Turner, 684 F.3d 244, 246 (1st Cir. 2012). (8)504 U.S. 255, 267-68 (1992). (9)Buffis, at *4. (10)Id., at *5 (11)United States v. Rivera-Medina, 845 F.2d 12, 14 (1st Cir. 1988). (12)18 U.S.C. § 1951(b)(2).