As if the Baltimore police needed more bad press.

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A Kickback Is a Conspiracy to Extort Yourself. Wait, What?

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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The Supreme Court has decided a Baltimore Police Department extortion case straight out of "The Wire" on the basis of common sense. It held that the federal bribery statute allows a conviction for conspiracy to commit bribery even when the co-conspirator was also the victim. That's the nature of a kickback, after all: The party that's being extorted is also one of the beneficiaries of the scheme.

This holding required the court to go beyond the literal words of the statute and ascertain its true purpose. The late Justice Antonin Scalia, who hated such purpose-driven statutory interpretation, is harrumphing somewhere as his textualism was rejected.

You'd expect Justice Clarence Thomas to have dissented, and he did. But in a noteworthy twist, the other dissent in the 5-3 decision was written by Justice Sonia Sotomayor -- and her opinion was joined by Chief Justice John Roberts. Both, it appears, disfavor the extension of conspiracy law, although perhaps for different reasons.

The facts of the case, Ocasio v. U.S., are simple. Samuel Ocasio was part of a ring of Baltimore cops who steered accident victims to a particular repair shop in exchange for a kickback. He was caught on a wire engaged in the practice, and charged with conspiracy to commit extortion.

The federal Hobbs Act, which was also at issue last week when the Supreme Court considered the bribery conviction of former Virginia governor Bob McDonnell, defines extortion as “the obtaining of property from another, with his consent, under color of official right.”

After being convicted, Ocasio argued that the statute couldn't apply to him because he could not be convicted of conspiring with the repair shop owners to obtain money from them. His best argument was the text of the statute. The words “obtaining … property from another” sound like they should apply to a case when you are extorting money from someone against his will -- not when you are working alongside that person to send business to him and to get a kickback from him.

Justice Samuel Alito wrote the majority opinion rejecting this literal reading. His core argument was that the reading is “contrary to age-old principles of conspiracy law.”

The proof came from a 1915 case involving the Mann Act, which prohibited transporting a woman across state lines for immoral purposes. In that decision, written by the great Justice Oliver Wendell Holmes, a woman who had agreed to have herself transported across state lines was convicted of conspiracy to violate the act even though she was the victim as well as the perpetrator.

Alito quoted Holmes as writing, “plainly a person may conspire for the commission of a crime by a third person.”

It followed, argued Alito, that the repair shop owners could conspire to enable the commission of the crime of extortion even though logically, they couldn't be extorting themselves. According to this theory, the owners were conspiring with Ocasio to extort kickbacks from them, so he could therefore be convicted of extortion.

I’m not sure that Alito represented Holmes’s logic correctly. Holmes proposed a hypothetical example of a “professional prostitute” who wanted to be transported across state lines for an immoral purpose. Such a woman, Holmes said, would be guilty of the underlying offense of the Mann Act, by transporting herself across state lines for immoral purpose.

Holmes added that traditionally, agreements to participate in the crimes of bigamy and dueling couldn't be made into a charge of conspiracy.

If I'm right that Holmes’s argument rested on the possibility that the woman could have been guilty of the underlying crime, then extortion should be considered more like bigamy and dueling, crimes that take two to tango but couldn't be made into conspiracy crimes under the common law.

Alito’s opinion is clearly correct in a practical sense with respect to kickbacks, to which it’s restricted. A kickback isn't exactly the same as an agreement to be extorted, but it’s clearly a crime of some sort.  Alito was trying to interpret the law in the Hobbs Act in light of its purpose of fighting official corruption, even if he claimed to be studying common law tradition.

Sotomayor’s dissent emphasized words of the Hobbs Act, which prohibits extorting “another person.” And she added that the court's majority opinion could potentially give prosecutors extra leverage in extortion cases by enabling them to threaten to prosecute bribe-payers for conspiracy to extort themselves.

For the liberal Sotomayor, the point was surely to limit the reach of federal criminal law. Roberts’s motivation is less clear. He once represented corporate clients, and corporate defendants might be especially vulnerable to being charged with conspiracy when they pay bribes.

But it’s also possible that Roberts generally fears the far reach of conspiracy law. The end of Sotomayor's opinion cited Justice Robert Jackson for the idea that “conspiracy has long been criticized as vague and elastic, fitting whatever a prosecutor needs in a given case.” Roberts clerked for Chief Justice William Rehnquist, who himself clerked for Jackson.

Roberts has some things in common with the centrist Jackson. One of them appears to be the belief that prosecutors are powerful enough without creative readings of conspiracy law.

  1. Less than two weeks ago, this unlikely duo joined in a dissent emphasizing the power of the courts. Now the court's most liberal member and its conservative chief have once again made common cause.

  2. Admittedly, Holmes also wrote that “a conspiracy with an officer or employee of the government or any other for an offense that only he could commit has been held for many years to fall within the conspiracy section … of the Penal Code.” That would support Alito’s position.

  3. In a 1992 decision, Evans v. U.S., the court said bribery and extortion were basically the same thing. Thomas’s dissent in today’s case said that precedent was wrong.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Philip Gray at philipgray@bloomberg.net