United States v. Samuel Ocasio ( 2014 )

Granted by Supreme Court March 2, 2015
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4462
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SAMUEL OCASIO,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:11-cr-00122-CCB-13)
Argued: December 11, 2013 Decided: April 29, 2014
Before MOTZ, KING, and SHEDD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by published
opinion. Judge King wrote the opinion, in which Judge Motz and
Judge Shedd joined.
ARGUED: Matthew Scott Owen, KING & SPALDING LLP, Washington,
D.C., for Appellant. Kathleen O'Connell Gavin, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON
BRIEF: Daniel S. Epps, KING & SPALDING LLP, Washington, D.C.,
for Appellant. Rod J. Rosenstein, United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee.
KING, Circuit Judge:
In 2012, a jury found defendant Samuel Ocasio, a former
officer of the Baltimore Police Department (the “BPD”), guilty
of four offenses relating to his involvement in a kickback
scheme to funnel wrecked automobiles to a Baltimore auto repair
shop in exchange for monetary payments. Ocasio was convicted on
three Hobbs Act extortion counts, see 18 U.S.C. § 1951, plus a
charge of conspiracy to commit such extortion, see 18 U.S.C.
§ 371. On appeal, Ocasio primarily maintains that his
conspiracy conviction is fatally flawed and must be vacated. He
also challenges a portion of the sentencing court’s award of
restitution. As explained below, we affirm Ocasio’s conspiracy
and other convictions, vacate the restitution award in part, and
remand.
I.
A.
On March 9, 2011, Ocasio and ten codefendants were indicted
in the District of Maryland in connection with the kickback
scheme involving payments to BPD officers in exchange for
referrals to a Baltimore business called Majestic Auto Repair
Shop LLC (the “Majestic Repair Shop,” or simply “Majestic”).
Nine of the defendants were BPD officers, and the others were
Herman Alexis Moreno and Edwin Javier Mejia, brothers who were
2
co-owners and operators of the Majestic Repair Shop. The
single-count indictment alleged, pursuant to 18 U.S.C. § 371,
that the defendants, along with others “known and unknown,”
conspired to violate the Hobbs Act, 18 U.S.C. § 1951, by
agreeing to “unlawfully obtain under color of official right,
money and other property” from Moreno, Mejia, and Majestic. See
J.A. 18. 1 As such, the initial indictment both charged Moreno
and Mejia with the conspiracy offense and identified them — as
well as Majestic — as victims of the extortion conspiracy.
Seven months later, on October 19, 2011, the grand jury
returned a seven-count superseding indictment charging only two
defendants, Ocasio and another BPD officer, Kelvin Quade
Manrich, who had not been named in the initial indictment.
Thereafter, the conspiracy offense in the first indictment was
dismissed as to each of the other defendants, in exchange for
guilty pleas. Each defendant entered into a plea agreement with
the government and pleaded guilty to a separately-filed
superseding information, predicated on admitted involvement in
the kickback scheme. 2 In connection with their guilty pleas, the
1
Citations herein to “J.A. ___” refer to the contents of
the Joint Appendix filed by the parties in this appeal.
2
Several of the BPD officer-defendants were convicted of a
single count of Hobbs Act extortion under 18 U.S.C. § 1951,
while other defendants were convicted of two offenses, Hobbs Act
extortion and conspiring to commit extortion. On July 11, 2011,
(Continued)
3
brothers Moreno and Mejia agreed that they would testify at
Ocasio’s trial.
Count One of the superseding indictment — naming both
Ocasio and Manrich — repeated the charge of conspiring to
violate the Hobbs Act, in contravention of 18 U.S.C. § 371.
Counts Two through Four charged Manrich with Hobbs Act
extortion, that is, extorting Moreno by “unlawfully obtaining
under color of official right, money and property,” in violation
of 18 U.S.C. § 1951(a). See J.A. 55. Finally, counts Five
through Seven charged Ocasio with Hobbs Act extortion of Moreno
on three specific occasions — January 17, 2010, January 10,
2011, and January 15, 2011. 3
In Count One, the superseding indictment alleged the § 371
conspiracy offense against Ocasio and Manrich in the following
terms:
From in or about the Spring of 2008, and continuing
through at least February 2011, [Ocasio and Manrich],
and others both known and unknown to the Grand Jury,
Moreno and Mejia each pleaded guilty to Hobbs Act extortion and
conspiracy.
3
The Hobbs Act 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). References in this
opinion to Hobbs Act extortion refer to extortion committed
under color of official right, as charged against Ocasio and
Manrich.
4
did knowingly and unlawfully combine, conspire,
confederate, and agree together, with other [BPD
officers], and with Moreno and Mejia to obstruct,
delay, and affect commerce and the movement of any
article and commodity in commerce by extortion, that
is, to unlawfully obtain under color of official
right, money and other property from Moreno, Mejia,
and [the Majestic Repair Shop], with their consent,
not due the defendants or their official position, in
violation of [the Hobbs Act].
J.A. 50. According to Count One, the purpose of the conspiracy
was for “Moreno and Mejia to enrich over 50 BPD Officers . . .
by issuing payments to the BPD Officers in exchange for the BPD
Officers’ exercise of their official positions and influence to
cause vehicles to be towed or otherwise delivered to Majestic
for automobile services and repair.” Id. at 51. Count One
spelled out two overt acts in furtherance of the conspiracy — a
December 14, 2010 phone call between Manrich and Moreno, plus a
January 15, 2011 call between Ocasio and Moreno — and
incorporated by reference, as additional overt acts, each of the
six substantive Hobbs Act extortion counts.
B.
The prosecutions underlying this appeal were the result of
an extensive investigation conducted by the BPD and the FBI.
The BPD began its investigation in the summer of 2009. When
federal authorities joined the investigation in late 2010, the
BPD had identified approximately fifty of its officers as
possibly involved in wrongdoing with the Majestic Repair Shop.
5
In the winter of 2010, the FBI placed a wiretap on Moreno’s
telephone and began surveillance at both Majestic and at
Moreno’s residence. During the period from November 2010 to
February 2011, the FBI recorded thousands of phone calls between
Moreno and various BPD officers, including Ocasio and Manrich.
The trial evidence established a wide-ranging kickback
scheme involving the Majestic Repair Shop and BPD officers. 4 The
scheme was fairly straightforward: BPD officers would refer
accident victims to Majestic for body work and, in exchange for
such referrals, the officers would receive monetary payments.
The payments made to BPD officers by the Majestic Repair Shop
for their referrals of wrecked vehicles were made by both cash
and check, and ranged from $150 to $300 per vehicle. After the
kickback and extortion scheme began, knowledge of it spread by
word-of-mouth throughout the BPD.
The referral of accident victims to the Majestic Repair
Shop by BPD officers in exchange for money violated the BPD’s
established procedures. The BPD General Orders specify that BPD
officers shall not violate any state or federal laws or city
ordinances, or solicit or accept any “compensation, reward,
4
Our factual recitation is drawn primarily from the trial
record. In light of the guilty verdicts, we present the
relevant facts in the light most favorable to the prosecution.
See Evans v. United States, 504 U.S. 255, 257 (1992).
6
gift, or other consideration” without the permission of the
Police Commissioner. See J.A. 49, 208-09. Pursuant to BPD
General Order I-2, which specifies “towing procedures,” if an
accident victim in a non-emergency situation declines to contact
her insurance company or other towing service (such as AAA), the
BPD officer at the accident scene should call, through the BPD
communications center, an already approved “Medallion towing
company” to move the damaged vehicle. 5 In an emergency
situation, i.e., when conditions are hazardous or a wrecked
vehicle could impede traffic or cause further injuries, BPD
officers have the discretion to contact a Medallion towing
company to request towing services without first securing the
consent of the wrecked vehicle’s owner or operator. Regardless
of whether a Medallion towing company is called for a wrecked
vehicle, the “owner or operator [retains] full discretion to
determine the destination to which the vehicle [is] to be
towed.” Id. at 213. Majestic was not, at any point during the
Count One conspiracy, a Medallion towing company.
1.
The Count One conspiracy commenced in late 2008 or early
2009. Officer Ocasio first became involved in the kickback
5
A Medallion towing company is a pre-approved towing
business that has a contract with the City of Baltimore to
provide towing services in connection with automobile accidents.
7
scheme in about May 2009, when, after learning about the scheme
from another BPD officer, he called Moreno to request a tow
truck for an accident. Moreno and Ocasio met for the first time
at the scene of that accident. From May 2009 until about
February 2011, Ocasio referred numerous vehicles to the Majestic
Repair Shop, and received a cash payment on each occasion. On
several occasions, Ocasio — who usually worked the BPD’s night
shift — called Moreno from an accident scene and described the
damaged vehicles. If Moreno wanted a vehicle towed to Majestic,
Ocasio would convince the driver that she should use Majestic’s
services and then arrange for the wrecked vehicle to be towed to
Majestic. 6 After referring the wrecked vehicle to Majestic,
Ocasio would call Moreno and request his cash payment of $300,
usually by the next afternoon.
a.
Around midnight on January 17, 2010, Officer Ocasio
responded to an accident scene in Baltimore. After determining
that one of the wrecked vehicles was not driveable, Ocasio
called the driver, a Mr. Taylor, to the BPD patrol car and gave
6
Although the Majestic Repair Shop was primarily a body
shop, rather than a towing company, it owned and operated a tow
truck and worked with at least one other towing business. The
vehicles referred to Majestic by BPD officers were either towed
to Majestic by its own tow truck, or Moreno arranged for wrecked
vehicles to be towed there by other towing services.
8
him advice — that the Majestic Repair Shop should tow and repair
Taylor’s wrecked car. When Taylor told Ocasio that he had
already called AAA, Ocasio convinced Taylor to cancel the AAA
request and have his vehicle towed instead to Majestic. Ocasio
then called Moreno to request a tow for Taylor. Almost
immediately, Ocasio called Moreno again, asking him to delay his
arrival at the accident scene because Ocasio’s supervisor was
nearby. Several minutes later, Ocasio called Moreno again to
let him know that the coast was clear. Moreno, along with BPD
Officer Leonel Rodriguez (who was already with Moreno when
Ocasio called), arrived at the accident scene with a tow truck
and towed Taylor’s car to Majestic. 7 Ocasio called Moreno the
following morning seeking his $300 cash payment for the
referral.
b.
Several months later, in March 2010, a driver flagged
Ocasio down around midnight to report that his vehicle had been
vandalized. Ocasio, after ascertaining that the car could not
be driven and was blocking a city street, recommended calling
7
Moreno explained to the jury that Officers Rodriguez and
Ocasio were friends and associates, and Moreno identified
Rodriguez as the BPD officer who probably introduced Ocasio to
the kickback scheme. Despite knowing each other, Rodriguez and
Ocasio acted as strangers when both were present at the January
17, 2010 accident scene.
9
the Majestic Repair Shop. When the owner consented, Ocasio
called Moreno to arrange for the tow. As a result, Moreno towed
the vehicle to Majestic and performed repair work on it that was
worth several thousand dollars. Ocasio called Moreno several
times the next afternoon and arranged for his $300 cash referral
payment.
On November 7, 2010, Officer Ocasio was again working the
BPD’s night shift. Around 4:00 that morning, Ocasio was called
to an area of Baltimore where four parked vehicles had been hit
by a fifth vehicle. Ocasio called Moreno to describe the four
damaged vehicles and to see if Moreno would like any of them
referred to the Majestic Repair Shop. During this call, Ocasio
described the car that had collided with the parked vehicles,
advising Moreno that it was “an Acura Legend” with “full cover,”
conveying to Moreno that the car at fault was a luxury vehicle
and that its insurer would pay for the damages suffered by the
other vehicles. See J.A. 416. Moreno expressed concerns to
Ocasio about the values of the four damaged automobiles,
questioning whether they would be worth towing and repairing.
Ocasio then identified one of those cars as a 2006 Toyota, which
interested Moreno because the Toyota was more valuable than the
others. Ocasio advised Moreno that there was no need to tow the
Toyota, however, because it could still be driven. In response,
10
Moreno suggested that Ocasio “talk to” the owner of the Toyota
and convince him to have it towed to Majestic. Id. at 419.
After Moreno and Ocasio agreed that the Toyota should be
referred to the Majestic Repair Shop, Ocasio identified its
owner, a Mr. Tran, through the computer in a BPD patrol car.
Despite the early morning hour and the fact that the Toyota was
in operating condition, Ocasio went personally to Tran’s home
and misrepresented the accident situation. Ocasio falsely
advised Tran that the accident report had to be completed that
very morning. Officer Rogich, another BPD officer who was at
the scene, explained otherwise to the jury, stating that he
“wouldn’t have knocked on [the owners’] doors,” and “would have
just left” accident report forms on the windshields of the
damaged cars or at the owners’ doors. See J.A. 926. While in
Tran’s residence, Ocasio recommended that Majestic fix the
Toyota. Ocasio then called Moreno, who arrived soon thereafter
and convinced Tran to have the Toyota towed to Majestic for
repairs. Moreno also gave Tran documentation reflecting that
his Toyota had been towed to Majestic. Rather than towing the
Toyota, however, Moreno drove it from the accident scene to
Majestic. En route, Moreno stopped at a nearby convenience
store and met Ocasio. While there, Moreno withdrew $300 in cash
from a Majestic bank account, which was paid to Ocasio.
11
c.
In the early morning hours of January 10, 2011, Officer
Ocasio was called to the scene of a hit-and-run accident in
Baltimore to translate for an accident victim, Mr. Quintanilla,
who did not speak English. Quintanilla’s SUV had been damaged
in the accident, and it had been pushed off the street into a
yard. The first BPD officer to respond to the scene concluded
that there was no need to tow the SUV. Ocasio, after asking
Quintanilla if he knew where the SUV could be fixed, recommended
that it be towed to the Majestic Repair Shop. Ocasio then
called Moreno to describe the damaged SUV, and Moreno responded
by sending one of his associates to tow it to Majestic. That
afternoon, Ocasio called Moreno seeking his referral fee. On
January 14, 2011, Ocasio picked up Moreno at Majestic and they
travelled together to a nearby ATM. Moreno then withdrew $300
in cash from a Majestic bank account and paid it to Ocasio.
d.
On January 15, 2011, Officer Ocasio made yet another
referral to the Majestic Repair Shop. Shortly after 2:00 a.m.,
Ocasio arrived at the scene of a hit-and-run accident, being one
of several BPD officers to respond. Ocasio had not been
assigned to the accident by the BPD dispatcher, however, and
should have been on “special detail” in another area of
Baltimore. The wrecked vehicle was badly damaged and could not
12
be driven. Ocasio did not ask the car’s owner if she had a
towing company or speak to her about having her vehicle towed
and repaired. He nevertheless called Moreno and requested that
a tow truck be sent to the accident scene. In response, Moreno
sent an associate, who had the car’s owner sign paperwork
authorizing the tow for her wrecked vehicle. Moreno’s associate
also gave the vehicle’s owner a Majestic business card. Later
that morning, Ocasio sent Moreno a text message asking to “pick
up the money today before I go to work.” J.A. 538. Ocasio then
went to Moreno’s home and collected $300 in cash. 8
2.
Officer Ocasio also personally utilized the services of the
Majestic Repair Shop. On January 29, 2010, Ocasio’s wife was
involved in a traffic accident that caused only slight damage to
the rear bumper of her SUV. As a result, Ocasio called Moreno
and asked that his wife’s SUV be towed to Majestic. Because
Ocasio’s insurance company (GEICO) was unlikely to pay for such
minor repairs, Ocasio overstated the SUV’s damage on a GEICO
claim form. Moreno then caused additional damage to the SUV —
8
The events of January 17, 2010, underlie the Hobbs Act
extortion offense alleged against Ocasio in Count Five of the
superseding indictment; the events of January 10 and 14, 2011,
underlie Count Six; and, the events of January 15, 2011,
underlie Count Seven. Counts Five, Six, and Seven are, in turn,
incorporated into Count One as overt acts in furtherance of the
extortion conspiracy.
13
which he subsequently repaired — consistent with the damage
description that Ocasio had provided to GEICO on the claim form.
Ocasio’s insurance claim was paid in full and, because Ocasio’s
wife was not responsible for the accident, GEICO was reimbursed
by the other driver’s insurer (Erie Insurance) for the damage
falsely claimed by Ocasio with respect to the SUV. In addition
to the standard $300 cash referral fee, Majestic paid Ocasio’s
insurance deductible and car rental fees that were not covered
by the insurers. As Moreno explained at trial, Majestic made
those payments in an effort to keep Ocasio happy, with the hope
that he would continue referring damaged vehicles to Majestic.
On December 29, 2010, Ocasio again called on the Majestic
Repair Shop’s towing and repair services for his personal needs.
When Ocasio’s private vehicle broke down in Baltimore, he called
Moreno for a tow. Moreno advised Ocasio that he would take care
of the towing fee and sent a friend from another towing service
to tow Ocasio’s vehicle. Rather than have his automobile towed
to Majestic’s shop, however, Ocasio had it towed to his
residence. The towing fee was $150, more than Moreno had
anticipated. When Moreno asked Ocasio to split the towing fee,
Ocasio agreed to do so, but thereafter reneged on that
arrangement.
14
C.
Prior to Ocasio and Manrich’s joint trial on the
superseding indictment, the prosecution submitted its proposed
jury instructions to the district court. In response, Ocasio
made objections and submitted his own proposed instructions.
Therein, Ocasio raised the primary argument that he pursues on
appeal: that he could not be convicted of conspiring with
Moreno and Mejia, because they were the victims of the alleged
Hobbs Act extortion conspiracy. Ocasio’s argument relied on
United States v. Brock, 501 F.3d 762 (6th Cir. 2007), wherein
the Sixth Circuit concluded that the victim of a Hobbs Act
conspiracy must be a person outside the alleged conspiracy,
i.e., the victim cannot also be a coconspirator in the extortion
scheme. 9 The prosecution objected to Ocasio’s proposed Brock
9
Ocasio’s proposed instruction concerning his Brock
argument stated:
In order to convict a defendant of conspiracy to
commit extortion under color of official right, the
government must prove beyond a reasonable doubt that
the conspiracy was to obtain money or property from
some person who was not a member of the conspiracy.
Therefore, if you find that the only person or persons
from whom a defendant conspired to obtain money by
extortion under color of official right was another
person or other persons who were also members of the
conspiracy, then you must find the defendant not
guilty of the conspiracy.
J.A. 136.
15
instruction, contending that his reliance on the Brock decision
was foreclosed by applicable precedent.
The trial began in Baltimore on February 13, 2012. On
February 22, 2012, after presenting twenty-four witnesses, the
prosecution rested. Ocasio and Manrich each moved for judgments
of acquittal. With respect to the Count One extortion
conspiracy, Ocasio pursued his Brock argument that Count One
rested on a legally impermissible theory under which he could
not be convicted. The district court denied Ocasio’s acquittal
motion, as well as Manrich’s, distinguishing Brock and
concluding that this Court’s decision in United States v.
Spitler, 800 F.2d 1267 (4th Cir. 1986), controlled.
The following day, Manrich pleaded guilty to the charges
lodged against him in the superseding indictment. Ocasio,
however, proceeded with the trial and called five witnesses in
his defense, three of whom were character witnesses. Ocasio
himself did not testify. At the conclusion of the evidentiary
presentations, Ocasio renewed his judgment of acquittal motion,
which was again denied.
On February 24, 2012, prior to deliberations, the district
court instructed the jury, including in those instructions the
essential elements of the Hobbs Act conspiracy and extortion
offenses lodged against Ocasio. The court did not instruct the
jury on Ocasio’s Brock argument. That afternoon, the jury found
16
Ocasio guilty of all charges against him, that is, conspiring to
commit Hobbs Act extortion, plus three counts of Hobbs Act
extortion.
On June 1, 2012, the district court sentenced Ocasio to
eighteen months in prison, to be followed by three years of
supervised release. The court also ordered Ocasio to make
restitution to the BPD in the sum of $1,500.00, the aggregate
value of the cash payments Ocasio had received from the Majestic
Repair Shop. The prosecution sought further restitution with
respect to Erie Insurance, predicated on the proposition that
Ocasio had defrauded GEICO, which in turn had been reimbursed by
Erie (as insurer for the at-fault driver involved in the
accident with Ocasio’s wife). At sentencing, the court deferred
ruling on the Erie restitution issue and took the matter under
advisement. The criminal judgment, without addressing the
prosecution’s restitution request with respect to Erie, was
entered on June 5, 2012. On July 23, 2012, the court entered an
amended judgment, directing Ocasio to make restitution to Erie
in the sum of $1,870.58. That amount represented the difference
between the total reimbursement made by Erie and the amount
actually attributable to the Erie-insured motorist.
Ocasio timely noticed this appeal, and we possess
jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C.
§ 1291.
17
II.
On appeal, Ocasio maintains that the Count One conspiracy
conviction is fatally flawed. Under Ocasio’s theory, conspiring
to extort property from one’s own coconspirator does not
contravene federal law, and thus the conspiracy offense was not
proven and the district court erred in denying him an acquittal
on Count One. Additionally, Ocasio challenges the restitution
award to Erie Insurance, contending that Erie is not a victim of
any of his offenses of conviction.
A.
We first address and reject Ocasio’s contention that his
Count One conspiracy conviction is legally invalid. 10 We review
de novo a district court’s denial of a motion for judgment of
acquittal. See United States v. Smith, 451 F.3d 209, 216 (4th
Cir. 2006). In conducting such a review, we must sustain a
guilty verdict if, viewing the evidence in the light most
favorable to the prosecution, it is supported by substantial
evidence. See id. Moreover, we review de novo a question of
10
Ocasio further posits that the fatally flawed Count One
conspiracy charge enabled a prejudicial trial joinder with his
alleged coconspirator Manrich, and, as a result, he is also
entitled to a new trial on the three substantive Hobbs Act
charges (Counts Five through Seven). Because we reject the
premise that Ocasio’s Count One conspiracy conviction is legally
invalid, we must also deny his new trial request.
18
law, including an issue of statutory interpretation. See United
States v. Ide, 624 F.3d 666, 668 (4th Cir. 2010).
1.
Ocasio was convicted under 18 U.S.C. § 371 of conspiring
with BPD officers, as well as Moreno, Mejia, and others known
and unknown to the grand jury, to contravene the Hobbs Act by
extorting three victims — Moreno, Mejia, and the Majestic Repair
Shop. Section 371, the general federal conspiracy statute,
provides that such an offense occurs when
two or more persons conspire . . . to commit any
offense against the United States . . . in any manner
or for any purpose, and one or more of such persons do
any act to effect the object of the conspiracy.
Consistent with the statutory language, the trial court
instructed that, in order to convict Ocasio of the Count One
conspiracy, the jury was obliged to find that the prosecution
satisfied the following elements:
First, that two or more persons entered the unlawful
agreement that is charged in the [superseding]
indictment, starting in or about the spring of 2008,
and this is the agreement to commit extortion under
color of official right[;]
Second, that the defendant, Mr. Ocasio, knowingly and
willfully became a member of that conspiracy[;]
Third, that one of the members of the conspiracy
knowingly committed at least one of the overt acts
charged in the [superseding] indictment; and
[F]ourth, that the overt act, which you find to have
been committed, was done to further some objective of
the conspiracy.
19
J.A. 1176-77. The court explained that “the reasonably
foreseeable acts, declarations, statements and omissions of any
member of [a] conspiracy, in furtherance of the common purpose
of the conspiracy, are considered under the law to be the acts
of all the members, and all the members are responsible for such
acts.” Id. at 1186. The court further explained that, if the
jury found Ocasio a member of the charged conspiracy “then any
acts . . . or statements . . . in furtherance of the conspiracy
by [persons] you also find to have been members of the
conspiracy, may be considered against” Ocasio, “even if those
acts were done, and the statements were made, in his absence and
without his knowledge.” Id. 11
The statutory object of the Count One conspiracy was to
violate the Hobbs Act, which provides, in pertinent part, that
[w]hoever in any way or degree obstructs, delays, or
affects commerce . . . by . . . extortion . . . in
furtherance of a plan or purpose to do anything in
violation of this section shall be [guilty of an
offense against the United States].
11
Of note, the district court made clear that the jury was
to consider whether the prosecution had satisfied its burden of
proof as to any and all of the overt acts charged in the
superseding indictment, including those committed by Manrich.
The court explained that, if the jury were to find that both
Manrich and Ocasio were members of the conspiracy, then the jury
could consider any acts done or statements made by Manrich
“during the course of the conspiracy, and in furtherance of the
conspiracy,” in its “decision as to whether the government has
proved all of the elements of the offenses charged against Mr.
Ocasio.” J.A. 1187-88.
20
18 U.S.C. § 1951(a). The Hobbs Act defines “extortion,” in
pertinent part, as “the obtaining of property from another, with
his consent, . . . under color of official right.” Id.§ 1951(b)(2). In order to prove such a Hobbs Act extortion
offense, the prosecution “need only show that a public official
has obtained a payment to which he was not entitled, knowing
that the payment was made in return for official acts.” Evans
v. United States, 504 U.S. 255, 268 (1992).
2.
Ocasio, relying on the Sixth Circuit’s decision in United
States v. Brock, 501 F.3d 762 (6th Cir. 2007), contends that his
conspiracy conviction is fatally flawed because a public
official cannot be convicted of conspiring to extort property
from his own coconspirator. He seeks to distinguish our
decision in United States v. Spitler, 800 F.2d 1267 (4th Cir.
1985) — the decision primarily relied upon by the district court
to reject Ocasio’s theory.
a.
We begin our analysis by discussing Brock and Spitler. 12 In
the latter case, we ruled that Spitler, an employee of a state
12
In Brock and Spitler, the defendants were not prosecuted
under 18 U.S.C. § 371, the statute specified in Count One, but
under the conspiracy provision of the Hobbs Act, 18 U.S.C.
§ 1951. Although the elements of those offenses are similar, a
§ 371 conspiracy requires proof of an overt act, while a § 1951
(Continued)
21
contractor, was properly convicted under the Hobbs Act for
conspiring with a state highway official to extort money and
property from Spitler’s employer. See 800 F.2d at 1278-79.
Spitler authorized his underlings to accede to the public
official’s demands for firearms, jewelry, and other items of
value in exchange for approval of inflated invoices. Spitler
posited on appeal that “as a victim of [the public official’s]
extortion he could not, as a matter of law, be convicted as an
aider and abettor or a conspirator to the extortion merely by
virtue of his acquiescence.” Id. at 1275. We determined,
however, that Spitler was no “mere extortion victim.” Id.In so ruling, Spitler recognized the extremes of a spectrum
of conduct ranging from “mere acquiescence” (which is not
punishable under conspiracy principles) to active solicitation
and inducement (which plainly fall within the purview of the
conspiracy statutes). See 800 F.2d at 1276-78. Writing for the
panel, Judge Russell found it unnecessary to “paint with a broad
brush and declare a bright line at which a payor’s conduct
constitutes sufficient activity beyond the mere acquiescence of
a victim so as to subject him to prosecution as an aider and
conspiracy does not. The maximum penalties under the two
statutes also differ: A conspiracy conviction under § 1951
carries a maximum of twenty years, four times that of a
conspiracy conviction under § 371.
22
abettor or a conspirator.” Id. at 1278. That was because the
panel concluded that Spitler’s involvement in the extortion
scheme “constituted a far more active role” than the mere
payment of money, in that Spitler had also “induced, procured,
caused, and aided” the public official’s ongoing extortion. Id.
(internal quotation marks omitted).
Thereafter, in its contrary Brock decision, the Sixth
Circuit ruled that the Hobbs Act’s conspiracy provision did not
reach conduct by private citizens who had concocted a bribery
scheme to pay off a county clerk. Brock and his brother
operated a bail bond business. When a client “skipped town” and
the Brocks became liable on the bond, Brock asked the county
clerk to “make the problem go away by removing the scheduled
forfeiture hearing from the court’s calendar.” See 501 F.3d at
765 (internal quotation marks and punctuation omitted). Brock
then paid the clerk for altering the court’s schedule. Brock
and his brother conducted the scheme with the county clerk over
several years, securing the clerk’s cooperation when their
bonding clients absconded. The court of appeals determined
that, because the Brocks were victims of the clerk’s extortion
scheme, they could not also be conspirators.
In so ruling, the Brock court focused on the language of
the Hobbs Act, reasoning that a Hobbs Act conspiracy requires an
agreement to obtain “‘property from another,’ which is to say,
23
. . . an agreement to obtain property from someone outside the
conspiracy.” 501 F.3d at 767. Additionally, the court noted
that the Hobbs Act “requires the conspirators to obtain that
property with the other’s consent,” and questioned how or why
extortion victims would “conspire to obtain their own consent.”
Id. As the court summarized, “the law says that the conspiracy
must extort ‘property from another’ and do so ‘with his
consent,’ neither of which applies naturally to the
conspirators’ own property or to their own consent.” Id. at
768. Notably, the Brock court acknowledged Spitler but
emphasized that it “did not consider the textual anomalies
raised here.” Id. at 769.
b.
As the district court determined, Ocasio’s case is governed
by our Spitler precedent. The Spitler rule is that a person
like Moreno or Mejia, who actively participates (rather than
merely acquiesces) in a conspiratorial extortion scheme, can be
named and prosecuted as a coconspirator even though he is also a
purported victim of the conspiratorial agreement. That rule
comports with basic conspiracy principles: One who knowingly
participates in a conspiracy to violate federal law can be held
accountable for not only his actions, but also the actions of
his coconspirators. See, e.g., United States v. Burgos, 94 F.3d
849, 858 (4th Cir. 1996) (en banc). Put simply, as Judge
24
Haynsworth aptly explained nearly thirty years ago, a conviction
for “conspiring to obstruct commerce in violation of the Hobbs
Act may be founded upon proof of an agreement to engage in
conduct which would violate the statute.” United States v.
Brantley, 777 F.2d 159, 163 (4th Cir. 1985).
Ocasio contends to the contrary. Relying on Brock, he
argues that the Hobbs Act’s “from another” language requires
that a coconspirator obtain property “from someone outside the
conspiracy.” 501 F.3d at 767. At the outset, we note that the
language of the Hobbs Act does not compel this conclusion: the
“from another” requirement refers to a person or entity other
than the public official. That is, it provides only that a
public official cannot extort himself. Thus, where a defendant
is charged with conspiring to commit Hobbs Act extortion, the
prosecution must show that the object of the conspiracy was for
the conspiring public official to extort property from someone
other than himself. Nothing in the Hobbs Act forecloses the
possibility that the “another” can also be a coconspirator of
the public official.
Ocasio next contends that the law must require that a
victim under the Hobbs Act be a person outside the conspiracy
because, otherwise, every victim’s “consent” could be considered
his agreement to enter into a conspiracy with his victimizer,
“thereby creating a separately punishable conspiracy in every
25
§ 1951(a) case.” See Br. of Appellant 28. Ocasio’s premise,
however, is foreclosed by Spitler, which underscored the
proposition that mere acquiescence in an extortion scheme is not
conspiratorial conduct. Rather, “conduct more active than mere
acquiescence” is necessary before a person “may depart the realm
of a victim and may unquestionably be subject to conviction for
aiding and abetting and conspiracy.” Spitler, 800 F.2d at 1276.
Under Spitler, therefore, Ocasio is wrong to suggest that every
extortion scheme will necessarily involve a conspiracy to commit
extortion. A bribe-payor’s mere acquiescence to the scheme
suffices to render a bribe-taker guilty of extortion. But
Spitler requires the bribe-payor’s more active participation in
the scheme to make him a coconspirator. 13
13
The Brock court attempted to distinguish Spitler on the
ground that the conspirators in Spitler, unlike those in Brock,
did in fact obtain property from “‘another’ unrelated entity
outside the conspiracy.” See Brock, 501 F.3d at 769. Under
this theory, Spitler’s employer — and not Spitler himself — was
the victim of the public official and Spitler’s extortion
scheme. The Brock court distinguished the case before it by
describing the alleged conspiracy as one whose “supposed point
. . . was to extort the Brocks’ cash payments, . . . not
property from an unrelated entity outside the conspiracy.” Id.In Spitler, however, we criticized the government for
arguing that Spitler could be convicted as a conspirator because
it was his employer who was the extortion victim. Specifically,
we “question[ed] the soundness of the government’s position
because under its theory, a corporate officer who merely accedes
to a public official’s implicit or explicit demands to the
corporation by authorizing an expenditure of corporate funds
would be subject to prosecution under the Hobbs Act for aiding
(Continued)
26
In light of our precedent, we must affirm Ocasio’s Count
One conspiracy conviction. See Robinson v. Shell Oil Co., 519
U.S. 337, 340 (1997) (“Our inquiry must cease if the statutory
language is unambiguous and the statutory scheme is coherent and
consistent.” (internal quotation marks omitted)). We thus
decline Ocasio’s invitation to afford him relief under the rule
of lenity. See Chapman v. United States, 500 U.S. 453, 463
(1991) (“The rule of lenity . . . is not applicable unless there
is a grievous ambiguity or uncertainty in the language and
structure of the Act, such that even after a court has seized
every thing from which aid can be derived, it is still left with
an ambiguous statute.” (internal quotation marks omitted)). We
also refuse, as we must, to abandon our Spitler precedent and
adopt the Sixth Circuit’s analysis in Brock. See McMellon v.
United States, 387 F.3d 329, 332 (4th Cir. 2004) (en banc)
(recognizing “the basic principle that one panel cannot overrule
a decision issued by another panel”). 14
and abetting the extortion and for conspiracy to commit the
extortion.” Spitler, 800 F.2d at 1275. The propriety of
Spitler’s conspiracy conviction, Judge Russell explained, rested
not on whether some other victim could be identified, but on
whether Spitler was a mere victim of — rather than an active
participant in — the extortion scheme.
14
We further observe that Ocasio’s Brock theory is
factually flawed, in that it relies on an evidentiary premise —
that his only coconspirators were Moreno and Mejia — that is
(Continued)
27
B.
Although we affirm Ocasio’s convictions, we vacate the
sentencing court’s award of restitution to Erie Insurance.
Ocasio maintains that Erie was not a victim of any of his
offenses of conviction. At best, he contends, Erie was the
victim of an uncharged insurance fraud scheme. Our review of
the court’s restitution order is for abuse of discretion. See
United States v. Llamas, 599 F.3d 381, 387 (4th Cir. 2010). We
assess de novo any legal questions raised with respect to
restitution issues, including matters of statutory
interpretation. See United States v. Ryan-Webster, 353 F.3d
353, 359 (4th Cir. 2003).
The Victim Witness Protection Act (the “VWPA”) provides in
pertinent part that a district court, when sentencing a
defendant convicted under Title 18, may order him to make
restitution to any victim of the offenses of conviction. See 18
U.S.C. § 3663. The VWPA defines a “victim” as
a person directly and proximately harmed as a result
of the commission of an offense for which restitution
entirely at odds with the record. To the contrary, the evidence
established a wide-ranging conspiracy involving dozens of BPD
officers who received money for referring wrecked vehicles to
the Majestic Repair Shop. Under the evidence, the jury was
entitled to find each of those BPD officers to be Ocasio’s
coconspirator, regardless of whether Ocasio even knew him. See
Burgos, 94 F.3d at 858.
28
may be ordered including, in the case of an offense
that involves as an element a scheme, conspiracy, or
pattern of criminal activity, any person directly
harmed by the defendant’s criminal conduct in the
course of the scheme, conspiracy, or pattern.
Id. § 3663(a)(2). The Supreme Court has explained that a
restitution award must “be tied to the loss caused by the
offense of conviction” and does not “permit a victim to recover
for losses stemming from all conduct attributable to the
defendant.” Hughey v. United States, 495 U.S. 411, 418 (1990).
Consistent therewith, we have recognized that the VWPA
“authorizes restitution only for losses traceable to the offense
of conviction.” United States v. Ubakanma, 215 F.3d 421, 428
(4th Cir. 2000). In conspiracy prosecutions, however, “broader
restitution orders encompassing losses that result from a
criminal scheme or conspiracy, regardless of whether the
defendant is convicted for each criminal act within that
scheme,” are permitted. United States v. Henoud, 81 F.3d 484,
488 (4th Cir. 1996). Nevertheless, an award of restitution is
only appropriate if the act that harms the purported victim is
“either conduct underlying an element of the offense of
conviction, or an act taken in furtherance of a scheme,
conspiracy, or pattern of criminal activity that is specifically
included as an element of the offense of conviction.” United
States v. Blake, 81 F.3d 498, 506 (4th Cir. 1996). Accordingly,
we explained that when
29
the harm to the person [or entity] does not result
from conduct underlying an element of the offense of
conviction, or conduct that is part of a pattern of
criminal activity that is an element of the offense of
conviction, the district court may not order the
defendant to pay restitution to that individual.
Id.Applying the foregoing standard to these circumstances, we
are unable to endorse the sentencing court’s determination that
Erie Insurance suffered any losses that resulted from the Hobbs
Act extortion conspiracy charged in Count One. Indeed, nothing
in the superseding indictment or in the trial evidence suggests
that an object of that conspiracy was to commit insurance fraud.
Nor does the record suggest that an insurance fraud scheme was
part of a pattern of criminal activity included as an element of
the Count One conspiracy. Perhaps Ocasio could also have been
convicted of defrauding Erie Insurance or conspiring to do so,
but that did not occur. The United States Attorney and the
grand jury did not see fit to charge Ocasio with an insurance
fraud scheme, and it would thus be inappropriate to penalize him
as though he was also convicted of that offense. Because Erie
was not a “victim” under the VWPA, the district court’s award of
restitution to Erie Insurance must be vacated. 15
15
The information under which Moreno and Mejia were
separately prosecuted and convicted alleged, in pertinent part,
that (1) “Moreno and Mejia agreed with various BPD Officers to
add damage to vehicles in order to increase Majestic’s profit
(Continued)
30
III.
Pursuant to the foregoing, Ocasio’s convictions and
sentence, as reflected in the district court’s judgment order of
June 6, 2012, are affirmed. The court’s amended judgment order
of July 23, 2012, however, is vacated to the extent that it
includes the award of restitution to Erie Insurance. We remand
for such other and further proceedings as may be appropriate.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
from the insurance company payments,” and (2) “various BPD
Officers would falsify [accident reports]” to make it appear
that the damage added to the vehicle by Majestic had actually
been caused by the underlying accident, thus enabling Majestic
to seek additional reimbursements from various insurance
companies. See United States v. Moreno, No. 1:11-cr-357,
Information at 5 (D. Md. June 29, 2011), ECF No. 1. Notably,
however, neither the initial nor the superseding indictments
charging Ocasio include any allegation that he or any other
conspirator falsified accident reports or insurance claims.
31