U.S. v. Abbas

• Decision Date: 26 March 2009
• Docket Number: No. 07-3866.,07-3866.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Omar ABBAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

560 F.3d 660

UNITED STATES of America, Plaintiff-Appellee, v. Omar ABBAS, Defendant-Appellant.

No. 07-3866.

United States Court of Appeals, Seventh Circuit.

Argued September 24, 2008.

Decided March 26, 2009.

John Hauser (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Nicole C. Henning (argued), Jones Day, Chicago, IL, Lauren Robel, Indiana University, Bloomington, IN, for Defendant-Appellant.

Before POSNER, DIANE P. WOOD, and TINDER, Circuit Judges.

TINDER, Circuit Judge.

Omar Abbas challenges the application of U.S.S.G. § 2C1.1 (extortion under color of official right) to his sentence for impersonating an FBI agent and argues that he should be re-sentenced. While we agree that impersonation of a public official is not action "under color of official right" (and thus does not qualify for treatment under § 2C1.1), we find that the sentencing error was harmless and that Abbas's sentence was reasonable. Accordingly, we affirm.

I. Background

Omar Abbas ran scams on several unsuspecting immigrants in the Chicago area, offering to make various immigration and criminal problems go away in return for cash. As part of his scheme, he occasionally claimed to be an FBI agent and even flashed a badge when one of his victims asked for proof. When a friend of one of his victims got suspicious, Abbas reported the friend to the FBI as a Hamas member, a claim the FBI debunked.

Abbas, however, had no relationship with the FBI or the Secret Service, the organization with which he claimed affiliation once he was taken into custody. In fact, he had no ability whatsoever to influence the outcome of the proceedings in which his victims were involved. Instead, he took the cash (on at least one occasion) to a casino in Indiana where he used the money to gamble.

He was eventually indicted on five counts: extortion under color of official right, in violation of the Hobbs Act, 18 U.S.C. § 1951, impersonation of an FBI Special Agent, 18 U.S.C. § 912, transporting in interstate commerce U.S. currency stolen or gained by fraud, 18 U.S.C. § 2314, and two counts of making false statements to FBI agents, 18 U.S.C. § 1001(a)(2).

Abbas pled guilty to the currency transportation charge and took the four other counts to trial. At trial, he was acquitted of the Hobbs Act charge, but convicted of impersonating an FBI agent and the two counts of making false statements. Per the Pre-Sentence Report and the government's recommendation, the district court calculated Abbas's sentence using U.S. Sentencing Guidelines § 2C1.1, pursuant to the cross reference found in U.S.S.G. § 2J1.4. It is the application of § 2C1.1 that forms the issue in this case.

The sentence for impersonating an FBI agent is determined by a judge according to § 2J1.4 of the Guidelines. Section 2J1.4(c)(1) contains a cross-reference that reads, "If the impersonation was to facilitate another offense, apply the guideline for an attempt to commit that offense, if the resulting offense level is greater than the offense level determined above." Even though the defendant was acquitted by the jury of extortion under color of official right, the sentencing judge found by a preponderance of the evidence that the defendant's impersonation was to facilitate color of official right extortion. The judge used § 2C1.1 (the color of official right guideline) to calculate the defendant's offense level. Applying this guideline, the judge sentenced the defendant to 29 months' imprisonment, and indicated that even if the Guidelines calculation was incorrect, she would impose the same sentence based on the factors listed in 18 U.S.C. § 3553.

II. Extortion Under Color of Official Right

We review both the district court's interpretation of the Guidelines and its application of the Guidelines to the facts de novo. United States v. Thomas, 520 F.3d 729, 736 (7th Cir.2008); United States v. Haddad, 462 F.3d 783, 793 (7th Cir.2006). The district court found, over Abbas's objection, that § 2C1.1 was an appropriate cross-reference to apply to his conviction, adopting a statement by this court in United States v. McClain, 934 F.2d 822, 831 (7th Cir.1991), that private citizens who masquerade as public officials are subject to extortion "under color of official right" liability. In addition, the district court relied on what it referred to as the legislative history of the Hobbs Act to support its reading. On appeal, the government argues that we should adopt this rationale and affirm the dictum in McClain because the resulting liability for masqueraders under the Hobbs Act is consistent with the plain language of the statute. Abbas, of course, argues the exact opposite.

Section 2C1.1 applies to "Offering, Giving, Soliciting, or Receiving a Bribe; Extortion Under Color of Official Right; Fraud Involving the Deprivation of the Intangible Right to Honest Services of Public Officials; Conspiracy to Defraud by Interference with Governmental Functions." The phrase "Extortion Under Color of Official Right" at issue here matches the language of the Hobbs Act, 18 U.S.C. § 1951, which punishes anyone who "obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion" and defines extortion as "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." 18 U.S.C. § 1951(b)(2).

The government does not argue that Abbas used or threatened force, or made his victims afraid. Instead, Abbas's victims were already afraid when he met them. One was afraid of being removed from the country; another was afraid for his son, who was incarcerated. Abbas sought to capitalize on this fear and did so by pretending to be an FBI agent who could solve his victims' problems.¹ The question is whether, when Abbas stepped into this role, he committed extortion "under color of official right."

At the outset, we should note that McClain did not directly address this issue and therefore does not determine the outcome of Abbas's appeal. McClain, 934 F.2d at 836 (Easterbrook, J., concurring) (noting that "panels of this court will consider it their duty to examine the subject anew when finally seized of a concrete controversy"). McClain is factually very different from this case. McClain involved not an impersonator but a private citizen involved in a scheme to bribe Chicago officials who, like Abbas, was acquitted of the "official right" charge. However, at the same time McClain was convicted of several conspiracy charges with separate non-extortion predicate offenses. He appealed those convictions, arguing that statements admitted against him to prove the "official right" charge had unfairly prejudiced the jury on these other charges. It was against this backdrop that we noted that "as a general matter and with caveats as suggested here, proceeding against private citizens on an `official right' theory is inappropriate under the literal and historical meaning of the Hobbs Act." Id. at 831.

One of the caveats we suggested was that McClain's "analysis does not apply, for example, to a private person actually masquerading as a public official." Id. at 830. It was this limiting phrase in McClain that led the district court here to believe that application of § 2C1.1 was appropriate for Abbas, who was convicted of such a masquerade. While we agree with the analysis in McClain that private citizens generally cannot be considered to act "under color official right," we disagree that masqueraders are the exception to this general rule. We disagree based on our reading of the statute and the well-reasoned approach to the issue taken by our sister circuits.

Remarkably, there appears to be no source for the undisputed meaning of the term "under color of official right." The Supreme Court conducted a rigorous exegesis of the term in Evans v. United States, 504 U.S. 255, 112 S.Ct. 1881, 119 L.Ed.2d 57 (1992), and reached the conclusion that extortion under color of official right did not require an official to solicit a bribe to incur criminal liability. More relevant to our purposes, however, is that the Supreme Court made it clear that "the portion of the [Hobbs Act] that refers to official misconduct continues to mirror the common-law definition" of extortion.² Evans, 504 U.S. at 264, 112 S.Ct. 1881. See also Scheidler v. Nat'l Org. for Women, Inc., 537 U.S. 393, 402, 123 S.Ct. 1057, 154 L.Ed.2d 991 (2003).

Thus, the government's argument that we can look to a plain reading of the "under color of official right" language, informed only by the dictionary definition of the word, is unavailing. "[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." Evans, 504 U.S. at 259-60, 112 S.Ct. 1881 (alteration in the original). "Or, as Justice Frankfurter advised, `if a word is obviously transplanted from another legal source, whether the common law or other legislation, it brings the old soil with it.'" Id. at 260 n. 3, 112 S.Ct. 1881 (quoting Frank-furter, Some Reflections on the Reading of Statutes, 47 Colum. L.Rev. 527, 537 (1947)). The term "under color of official right" has been around for centuries. It appeared in Magna Carta-era England, was imported into New York state law, codified in the Hobbs Act,³ and was subsequently interpreted by the Supreme Court. See Scheidler, 537 U.S. at 402-03, 123 S.Ct. 1057; James Lindgren, "The Elusive Distinction Between Bribery and Extortion: From the Common Law to the Hobbs Act," 35 UCLA L.Rev. 815 (1988). Extracting meaning from the phrase requires an examination of precedent and traditions of interpretation, rather than a sort of tabula rasa consideration of the words themselves.

In Evans, the Court explained that "[a]t common law, extortion...