United States v. Sekhar, Docket No. 11–4298.

• Decision Date: 26 June 2012
• Docket Number: Docket No. 11–4298.
• Citation: 683 F.3d 436
• Parties: UNITED STATES of America, Appellee, v. Giridhar C. SEKHAR, Defendant–Appellant.
• Court: U.S. Court of Appeals — Second Circuit

683 F.3d 436

UNITED STATES of America, Appellee,

v.Giridhar C. SEKHAR, Defendant–Appellant.

Docket No. 11–4298.

United States Court of Appeals, Second Circuit.

Argued: April 16, 2012.

Decided: June 26, 2012.

Paul A. Clyne, Albany, N.Y., for Appellant.

Rajit S. Dosanjh, Assistant United States Attorney (Elizabeth C. Coombe, Assistant United States Attorney, on the brief), for Richard S. Hartunian, United States Attorney for the Northern District of New York, Syracuse, N.Y., for Appellee.

Before: JACOBS, Chief Judge, B.D. PARKER and HALL, Circuit Judges.

DENNIS JACOBS, Chief Judge:

Giridhar Sekhar was convicted following a jury trial in the United States District Court for the Northern District of New York (Thomas J. McAvoy, Judge ) of [i] attempted extortion of the General Counsel of the New York State Comptroller's Office in violation of the Hobbs Act, 18 U.S.C. § 1951(a), and [ii] interstate transmission of extortionate threats in violation of 18 U.S.C. § 875(d). Sekhar had threatened to disclose gossip that the General Counsel was conducting an office affair unless the General Counsel recanted a recommendation to the State Comptroller to reject a proposal by Sekhar's company. On appeal, Sekhar contends that his conduct did not come within the statutory definition of extortion because he did not “attempt to obtain property” from the General Counsel. See Scheidler v. Nat'l Org. for Women, Inc. (Scheidler II), 537 U.S. 393, 409, 123 S.Ct. 1057, 154 L.Ed.2d 991 (2003) (interpreting 18 U.S.C. § 1951(b)(2)). Sekhar argues that [1] the General Counsel's right to make recommendations was not a property right, and [2] he did not attempt to appropriate or exercise that right. We affirm.

BACKGROUND

Investment Process. The Common Retirement Fund (“Pension Fund” or “Fund”) is the employee pension fund for the State of New York and various of its local governments. The State Comptroller is the sole trustee and has final approval over all Fund investments.

If the Comptroller approves an investment, he issues a Commitment. Fund investments are sometimes contingent on a company's attracting other investors, and a Commitment assists that process by signaling the backing of the Pension Fund. But a Commitment does not bind the Fund to invest; for that, the parties must execute and close on a limited partnership agreement.

Proposed Investment with FA Technology. In 2008, the Comptroller issued a Commitment for a $35 million investment in a fund managed by FA Technology Ventures (“FA Technology”) known as “FA Tech II.” The investment never closed. In October 2009, the Comptroller's Office considered another $35 million investment in two FA Technology funds, known collectively as “FA Tech III.” Based on the proposed terms, FA Technology would earn nearly $7.6 million in management fees over ten years, and could earn more depending on how the investment performed.

In April 2009, the Comptroller's Office had prohibited investments marketed by placement agents. Although FA Technology did not use a placement agent for FA Tech III, it had used one for FA Tech II, and the Comptroller's Office questioned the FA Tech III investment on that ground because the investment was “essentially the same” as FA Tech II.

While the General Counsel was considering the issue, he was advised by the Office of the New York Attorney General that it was investigating the placement agent involved in FA Tech II and that the Pension Fund should avoid association with that agent. The General Counsel's internal memo recommended that, “[b]ased on information provided by the Office of the Attorney General ..., it would be prudent, from a legal perspective, to avoid moving forward” with the FA Tech III investment and warned that the Pension Fund and the Comptroller's Office could be “in a vulnerable situation if the investment were made and a report or other finding of wrongdoing was subsequently issued by the [Office of the Attorney General].” The Comptroller, so advised, decided on November 13 not to approve the investment.

The First Deputy Comptroller conveyed the decision to George Hulecki, a managing partner of FA Technology. Hulecki had previously been informed of the General Counsel's opposition to the investment and of rumors that he was having an extramarital affair.

Sekhar's Conduct. On November 17, the General Counsel received an anonymous e-mail to his work account requesting a personal e-mail address to report “a serious ethical issue.” He advised the e-mailer to contact the Inspector General, but also provided a personal address. The e-mailer replied to the personal address accusing the General Counsel of “blackball[ing] a recommendation on a fund,” and threatening that if, by November 20, he did not tell the Comptroller that he had a “change of heart” and “recommend moving forward with this fund,” the e-mailer would disclose that the General Counsel was having an office affair to the General Counsel's wife, as well as to the Comptroller, the Attorney General, the press, and others.

That night, another e-mail warned the General Counsel that he had “36 hours left ... [t]o make the wrong right.” The next day, a similar e-mail arrived, as well as an e-mail attaching a draft letter to the Attorney General disclosing the alleged affair.

On the advice of law enforcement, the General Counsel asked the e-mailer for more time. On Monday, November 23, the e-mailer assured the General Counsel that he would “never hear about this again” if he could “get this fixed by Wednesday.” On Tuesday, December 1, the e-mailer asked the General Counsel what he thought about Tiger Woods: “[W]ho would have thought that a woman could get that upset ... and over what?” (ellipses in original).

The FBI traced some of the e-mails to the Brookline, Massachusetts home of Sekhar, a managing partner of FA Technology, and executed a search warrant. Sekhar admitted to sending the e-mails, and forensics confirmed Sekhar's computer as the source.

Procedural History. The indictment alleged that Sekhar wrongfully attempted to obtain the General Counsel's recommendation to approve the Commitment, the Comptroller's approval of the Commitment, and the Commitment itself. Sekhar was charged with one count of attempted extortion under the Hobbs Act, 18 U.S.C. § 1951(a), and six counts of interstate transmission of extortionate threats, id. § 875(d). Sekhar moved pro se to dismiss the indictment on the ground ( inter alia ) that it failed to state an offense, seeFed.R.Crim.P. 12(b)(3)(B), because a recommendation is not property, an approval is not property, and the indictment did not allege that Sekhar threatened a person with power to issue the Commitment. In denying the motion, the court ruled that “the General Counsel's right to make professional decisions without outside pressure is an intangible property right” and that the government need only prove that Sekhar “believed that the General Counsel's recommendation was the determining factor in obtaining the Commitment.”

Sekhar, defending pro se, was convicted on the extortion count and on five of the six counts of interstate transmission of extortionate threats. ¹ For each count, the jury indicated on a special verdict form that Sekhar attempted to extort the General Counsel's recommendation to approve the Commitment.

Sekhar, with counsel, moved for a judgment of acquittal or a new trial, based ( inter alia ) on the sufficiency of the evidence. SeeFed.R.Crim.P. 29(c), 33(a). The court ruled that there was sufficient evidence that: Sekhar attempted to exercise control over the General Counsel's right to make recommendations; Sekhar believed that this exercise would result in a Commitment; and a Commitment would benefit Sekhar financially. Sekhar was sentenced to fifteen months' incarceration on each count, to be served concurrently.

DISCUSSION

On appeal, Sekhar contends that the indictment failed to state an offense and that the evidence was insufficient to sustain the conviction. For both contentions, Sekhar's argument is the same: His conduct, as alleged in the indictment and proven at trial, did not come within the statutory definition of extortion because he did not “attempt to obtain property” from the General Counsel. See Scheidler II, 537 U.S. at 409, 123 S.Ct. 1057(interpreting 18 U.S.C. § 1951(b)(2)). The standard of review for both contentions is de novo. United States v. Gotti, 459 F.3d 296, 320 (2d Cir.2006) (“[W]e evaluate the legal issue[ ] of whether the indictment properly charged Hobbs Act extortion ... under a de novo standard.”); United States v. Madori, 419 F.3d 159, 166 (2d Cir.2005) (“We review de novo a challenge to the sufficiency of evidence and affirm if the evidence, when viewed in its totality and in the light most favorable to the government, would permit any rational jury to find the essential elements of the crime beyond a reasonable doubt.” (internal quotation marks omitted)). Accordingly, we analyze both contentions together. ²

The Hobbs Act subjects to criminal liability “[w]hoever 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.” 18 U.S.C. § 1951(a). “The term ‘extortion’ means 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.” Id. § 1951(b)(2). The parties agree that this definition also applies to § 875(d), which subjects to criminal liability “[w]hoever, with intent to extort from any person, firm, association, or corporation, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to injure the property or reputation of the addressee.” See also United States v. Jackson, 180 F.3d 55, 70 (2d Cir.1999) (“Given Congress's contemporaneous consideration of the predecessors of § 875(d) and the...