Sekhar v. United States

• Decision Date: 26 June 2013
• Docket Number: No. 12–357.,12–357.
• Citation: 186 L.Ed.2d 794,570 U.S. 729,133 S.Ct. 2720
• Parties: Giridhar C. SEKHAR, Petitioner v. UNITED STATES.
• Court: U.S. Supreme Court

570 U.S. 729

133 S.Ct. 2720

186 L.Ed.2d 794

Giridhar C. SEKHAR, Petitioner

v.UNITED STATES.

No. 12–357.

Supreme Court of the United States

Argued April 23, 2013.

Decided June 26, 2013.

Paul D. Clement, for Petitioner.

Sarah E. Harrington, for Respondent.

Paul D. Clement, Counsel of Record, George W. Hicks, Jr., Bancroft PLLC, Washington, DC, for Petitioner.

Donald B. Verrilli, Jr., Solicitor General, Counsel of Record, Mythili Raman, Acting Assistant Attorney General, Michael R. Dreeben, Deputy Solicitor General, Sarah E. Harrington, Assistant to the Solicitor General, Joel M. Gershowitz, Washington, D.C., for United States.

Justice SCALIA delivered the opinion of the Court.

We consider whether attempting to compel a person to recommend that his employer approve an investment constitutes "the obtaining of property from another" under 18 U.S.C. § 1951(b)(2).

I

New York's 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 (C.A.2 2012).

Petitioner Giridhar 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 extramarital affair.

The general counsel then received a series of anonymous e-mails demanding that he recommend moving forward 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. ––––, 133 S.Ct. 928, 184 L.Ed.2d 719 (2013).

II

A

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, 119 S.Ct. 1827, 144 L.Ed.2d 35 (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, 72 S.Ct. 240, 96 L.Ed. 288 (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 prisoner); 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 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) (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, 123 S.Ct. 1057, 154 L.Ed.2d 991 (2003) (citing United States v. Enmons, 410 U.S. 396, 400, 93 S.Ct. 1007, 35 L.Ed.2d 379 (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, 123 S.Ct. 1057; 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, 123 S.Ct. 1057. 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 (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, 123 S.Ct. 1057. We reasoned that the protesters may have deprived the clinics of an "alleged property right," but they did not pursue or...