Ocasio v. United States

(Slip Opinion) OCTOBER TERM, 2015 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
OCASIO v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT
No. 14–361. Argued October 6, 2015—Decided May 2, 2016
Petitioner Samuel Ocasio, a former police officer, participated in a
kickback scheme in which he and other officers routed damaged vehi-
cles from accident scenes to an auto repair shop in exchange for pay-
ments from the shopowners. Petitioner was charged with obtaining
money from the shopowners under color of official right, in violation
of the Hobbs Act, 18 U.S. C. §1951, and of conspiring to violate the
Hobbs Act, in violation of 18 U.S. C. §371. At trial, the District
Court rejected petitioner’s argument that—because the Hobbs Act
prohibits the obtaining of property “from another”—a Hobbs Act con-
spiracy requires proof that the alleged conspirators agreed to obtain
property from someone outside the conspiracy. Petitioner was con-
victed on all counts, and the Fourth Circuit affirmed. Petitioner now
challenges his conspiracy conviction, contending that he cannot be
convicted of conspiring with the shopowners to obtain money from
them under color of official right.
Held: A defendant may be convicted of conspiring to violate the Hobbs
Act based on proof that he reached an agreement with the owner of
the property in question to obtain that property under color of official
right. Pp. 5–18.
(a) The general federal conspiracy statute, under which petitioner
was convicted, makes it a crime to “conspire . . . to commit any of-
fense against the United States.” 18 U.S. C. §371. Section 371’s use
of the term “conspire” incorporates age-old principles of conspiracy
law. And under established case law, the fundamental characteristic
of a conspiracy is a joint commitment to an “endeavor which, if com-
pleted, would satisfy all of the elements of [the underlying substan-
tive] criminal offense.” Salinas v. United States, 522 U.S. 52, 65. A
conspirator need not agree to commit the substantive offense—or
2 OCASIO v. UNITED STATES
Syllabus
even be capable of committing it—in order to be convicted. It is suffi-
cient that the conspirator agreed that the underlying crime be com-
mitted by a member of the conspiracy capable of committing it. See
id., at 63–65; United States v. Holte, 236 U.S. 140; Gebardi v. United
States, 287 U.S. 112. Pp. 5–10.
(b) These basic principles of conspiracy law resolve this case. To
establish the alleged Hobbs Act conspiracy, the Government only
needed to prove an agreement that some conspirator commit each el-
ement of the substantive offense. Petitioner and the shopowners
reached just such an agreement: They shared a common purpose that
petitioner and other police officers would obtain property “from an-
other”—that is, from the shopowners—under color of official right.
Pp. 10–14.
(c) Contrary to petitioner’s claims, this decision does not dissolve
the distinction between extortion and conspiracy to commit extortion.
Nor does it transform every bribe of a public official into a conspiracy
to commit extortion. And while petitioner exaggerates the impact of
this decision, his argument would create serious practical problems.
Under his approach, the validity of a charge of Hobbs Act conspiracy
would often depend on difficult property-law questions having little
to do with culpability. Pp. 14–18.
750 F.3d 399, affirmed.
ALITO, J., delivered the opinion of the Court, in which KENNEDY,
GINSBURG, BREYER, and KAGAN, JJ., joined. BREYER, J., filed a concur-
ring opinion. THOMAS, J., filed a dissenting opinion. SOTOMAYOR, J.,
filed a dissenting opinion, in which ROBERTS, C. J., joined.
Cite as: 578 U. S. ____ (2016) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
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SUPREME COURT OF THE UNITED STATES
_________________
No. 14–361
_________________
SAMUEL OCASIO, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[May 2, 2016]
JUSTICE ALITO delivered the opinion of the Court.
Petitioner Samuel Ocasio, a former officer in the Balti­
more Police Department, participated in a kickback
scheme with the owners of a local auto repair shop. When
petitioner and other Baltimore officers reported to the
scene of an auto accident, they persuaded the owners of
damaged cars to have their vehicles towed to the repair
shop, and in exchange for this service the officers received
payments from the shopowners. Petitioner was convicted
of obtaining money from the shopowners under color of
official right, in violation of the Hobbs Act, 18 U.S. C.
§1951, and of conspiring to violate the Hobbs Act, in viola­
tion of 18 U.S. C. §371. He now challenges his conspiracy
conviction, contending that, as a matter of law, he cannot
be convicted of conspiring with the shopowners to obtain
money from them under color of official right. We reject
this argument because it is contrary to age-old principles
of conspiracy law.
I
Hernan Alexis Moreno Mejia (known as Moreno) and
Edwin Javier Mejia (known as Mejia) are brothers who co-
owned and operated the Majestic Auto Repair Shop (Ma­
2 OCASIO v. UNITED STATES
Opinion of the Court
jestic). In 2008, Majestic was struggling to attract cus­
tomers, so Moreno and Mejia made a deal with a Balti­
more police officer, Jhonn Corona. In exchange for kick­
backs, Officer Corona would refer motorists whose cars
were damaged in accidents to Majestic for towing and
repairs. Officer Corona then spread the word to other
members of the force, and eventually as many as 60 other
officers sent damaged cars to Majestic in exchange for
payments of $150 to $300 per referral.
Petitioner began to participate in this scheme in 2009.
On several occasions from 2009 to 2011, he convinced
accident victims to have their cars towed to Majestic.
Often, before sending a car to Majestic, petitioner called
Moreno from the scene of an accident to ensure that the
make and model of the car, the extent of the damage, and
the car’s insurance coverage would allow the shopowners
to turn a profit on the repairs. After directing a vehicle to
Majestic, petitioner would call Moreno and request his
payment.
Because police are often among the first to arrive at the
scene of an accident, the Baltimore officers were well
positioned to route damaged vehicles to Majestic. As a
result, the kickback scheme was highly successful: It
substantially increased Majestic’s volume of business and
profits, and by early 2011 it provided Majestic with at
least 90% of its customers.
Moreno, Mejia, petitioner, and nine other Baltimore
officers were indicted in 2011. The shopowners and most
of the other officers eventually pleaded guilty pursuant to
plea deals, but petitioner did not.
In a superseding indictment, petitioner was charged
with three counts of violating the Hobbs Act, 18 U.S. C.
§1951, by extorting money from Moreno with his consent
and under color of official right. As all parties agree, the
type of extortion for which petitioner was convicted—
obtaining property from another with his consent and
Cite as: 578 U. S. ____ (2016) 3
Opinion of the Court
under color of official right—is the “rough equivalent of
what we would now describe as ‘taking a bribe.’ ” Evans v.
United States, 504 U.S. 255, 260 (1992). To prove this
offense, the Government “need only show that a public
official has obtained a payment to which he was not enti­
tled, knowing that the payment was made in return for
official acts.” Id., at 268.
Petitioner and another Baltimore officer, Kelvin Quade
Manrich, were also charged with violating the general
federal conspiracy statute, 18 U.S. C. §371. The indict­
ment alleged that petitioner and Manrich conspired with
Moreno, Mejia, and other Baltimore officers to bring about
the same sort of substantive violations with which peti­
tioner was charged.
Before trial, petitioner began to raise a variant of the
legal argument that has brought his case to this Court.
He sought a jury instruction stating that “[i]n 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.” App. 53. In support of this
instruction, petitioner relied on the Sixth Circuit’s decision
in United States v. Brock, 501 F.3d 762 (2007), which
concerned two bail bondsmen who made payments to a
court clerk in exchange for the alteration of court records.
The Sixth Circuit held that “[t]o be covered by the [Hobbs
Act], the alleged conspirators . . . must have formed an
agreement to obtain ‘property from another,’ which is to
say, formed an agreement to obtain property from some­
one outside the conspiracy.” Id., at 767. The District
Court did not rule on this request prior to trial.
Petitioner’s codefendant, Manrich, pleaded guilty during
the trial, and at the close of the prosecution’s case and
again at the close of all evidence, petitioner moved for a
judgment of acquittal on the conspiracy count based on
4 OCASIO v. UNITED STATES
Opinion of the Court
Brock. The District Court denied these motions, conclud­
ing that the Fourth Circuit had already rejected Brock’s
holding in United States v. Spitler, 800 F.2d 1267 (1986).
The District Court also refused to give petitioner’s pro­
posed instruction. Instead, the court adopted the sort of
standard instructions that are typically used in conspiracy
cases. See generally L. Sand et al., Modern Federal Jury
Instructions: Criminal §19.01 (2015). In order to convict
petitioner of the conspiracy charge, the jury was told, the
prosecution was required to prove (1) that two or more
persons entered into an unlawful agreement; (2) that
petitioner knowingly and willfully became a member of
the conspiracy; (3) that at least one member of the con­
spiracy knowingly committed at least one overt act; and
(4) that the overt act was committed to further an objec­
tive of the conspiracy. The court “caution[ed]” “that mere
knowledge or acquiescence, without participation in the
unlawful plan, is not sufficient” to demonstrate member­
ship in the conspiracy. App. 195. Rather, the court ex­
plained, the conspirators must have had “a mutual under­
standing . . . to cooperate with each other to accomplish an
unlawful act,” and petitioner must have joined the con­
spiracy “with the intention of aiding in the accomplish­
ment of those unlawful ends.” Id., at 192, 195.
The jury found petitioner guilty on both the conspiracy
count and the three substantive extortion counts, and the
District Court sentenced him to concurrent terms of 18
months in prison on all four counts. On appeal to the
Fourth Circuit, petitioner’s primary argument was the
same one he had pressed before the District Court: that
his conspiracy conviction was fatally flawed because the
conspirators had not agreed to obtain money from a person
who was not a member of the conspiracy. The Fourth
Circuit rejected petitioner’s argument and affirmed his
convictions. 750 F.3d 399 (2014).
We then granted certiorari, 574 U. S. ___ (2015), and we
Cite as: 578 U. S. ____ (2016) 5
Opinion of the Court
now affirm.
II
Under longstanding principles of conspiracy law, a
defendant may be convicted of conspiring to violate the
Hobbs Act based on proof that he entered into a conspiracy
that had as its objective the obtaining of property from
another conspirator with his consent and under color of
official right.
A
In analyzing petitioner’s arguments, we begin with the
text of the statute under which he was convicted, namely,
the general federal conspiracy statute, which makes it a
crime to “conspire . . . to commit any offense against the
United States.” 18 U.S. C. §371 (emphasis added). Sec­
tion 371’s use of the term “conspire” incorporates long-
recognized principles of conspiracy law. And under estab­
lished case law, the fundamental characteristic of a
conspiracy is a joint commitment to an “endeavor which,
if completed, would satisfy all of the elements of [the under­
lying substantive] criminal offense.” Salinas v. United
States, 522 U.S. 52, 65 (1997); see 2 J. Bishop, Commen­
taries on the Criminal Law §175, p. 100 (rev. 7th ed. 1882)
(“Conspiracy, in the modern law, is generally defined as a
confederacy of two or more persons to accomplish some
unlawful purpose”); J. Hawley & M. McGregor, The Crim­
inal Law 99–100 (3d ed. 1899) (similar); W. LaFave, Crim­
inal Law 672 (5th ed. 2010) (similar).
Although conspirators must “pursue the same criminal
objective,” “a conspirator [need] not agree to commit or
facilitate each and every part of the substantive offense.”
Salinas, supra, at 63. A defendant must merely reach an
agreement with the “specific intent that the underlying
crime be committed” by some member of the conspiracy. 2
K. O’Malley, J. Grenig, & W. Lee, Federal Jury Practice
6 OCASIO v. UNITED STATES
Opinion of the Court
and Instructions: Criminal §31:03, p. 225 (6th ed. 2008)
(emphasis added); see also id., §31:02, at 220 (explaining
that a defendant must “intend to agree and must intend
that the substantive offense be committed” (emphasis
added)). “The government does not have to prove that the
defendant intended to commit the underlying offense
himself/herself.” Id., §31:03, at 226. Instead, “[i]f con­
spirators have a plan which calls for some conspirators to
perpetrate the crime and others to provide support, the
supporters are as guilty as the perpetrators.” Salinas,
supra, at 64; see Sand, supra, §19.01, at 19–54 (“[W]hen
people enter into a conspiracy to accomplish an unlawful
end, each and every member becomes an agent for the
other conspirators in carrying out the conspiracy”).
A few simple examples illustrate this important point.
Entering a dwelling is historically an element of burglary,
see, e.g., LaFave, supra, at 1069, but a person may con­
spire to commit burglary without agreeing to set foot
inside the targeted home. It is enough if the conspirator
agrees to help the person who will actually enter the
dwelling, perhaps by serving as a lookout or driving the
getaway car. Likewise, “[a] specific intent to distribute
drugs oneself is not required to secure a conviction for
participating in a drug-trafficking conspiracy.” United
States v. Piper, 35 F.3d 611, 614 (CA1 1994). Agreeing to
store drugs at one’s house in support of the conspiracy
may be sufficient. Ibid.
Not only is it unnecessary for each member of a conspir­
acy to agree to commit each element of the substantive
offense, but also a conspirator may be convicted “even
though he was incapable of committing the substantive
offense” himself. Salinas, supra, at 64; see United States
v. Rabinowich, 238 U.S. 78, 86 (1915) (“A person may be
guilty of conspiring although incapable of committing the
objective offense”); Sand, supra, §19.01, at 19–3 (“[ Y ]ou
may find the defendant guilty of conspiracy despite the
Cite as: 578 U. S. ____ (2016) 7
Opinion of the Court
fact that he himself was incapable of committing the
substantive crime”).
The Court applied these principles in two cases involv­
ing the Mann Act. See Act of June 25, 1910, ch. 395, 36
Stat. 825. Section 2 of the Mann Act made it a crime to
transport a woman or cause her to be transported across
state lines for an immoral purpose.1 In United States v.
Holte, 236 U.S. 140 (1915), a federal grand jury charged a
woman, Clara Holte, with conspiring with a man named
Chester Laudenschleger to violate this provision. The
District Court dismissed the charge against Holte, holding
that because a woman such as Holte could not be con-
victed for the substantive offense of transporting herself
or causing herself to be transported across state lines, she
also could not be convicted of conspiring to commit that
——————
1 In full, §2 provided as follows:
“That any person who shall knowingly transport or cause to be
transported, or aid or assist in obtaining transportation for, or in
transporting, in interstate or foreign commerce, or in any Territory or
in the District of Columbia, any woman or girl for the purpose of
prostitution or debauchery, or for any other immoral purpose, or with
the intent and purpose to induce, entice, or compel such woman or girl
to become a prostitute or to give herself up to debauchery, or to engage
in any other immoral practice; or who shall knowingly procure or
obtain, or cause to be procured or obtained, or aid or assist in procuring
or obtaining, any ticket or tickets, or any form of transportation or
evidence of the right thereto, to be used by any woman or girl in inter­
state or foreign commerce, or in any Territory or the District of Colum­
bia, in going to any place for the purpose of prostitution or debauchery,
or for any other immoral purpose, or with the intent or purpose on the
part of such person to induce, entice, or compel her to give herself up to
the practice of prostitution, or to give herself up to debauchery, or any
other immoral practice, whereby any such woman or girl shall be
transported in interstate or foreign commerce, or in any Territory or
the District of Columbia, shall be deemed guilty of a felony, and upon
conviction thereof shall be punished by a fine not exceeding five thou­
sand dollars, or by imprisonment of not more than five years, or by both
such fine and imprisonment, in the discretion of the court.” Act of June
25, 1910, ch. 395, 36 Stat. 825 (emphasis added).
8 OCASIO v. UNITED STATES
Opinion of the Court
offense.
In a succinct opinion by Justice Holmes, the Court
rejected this argument, stating that “plainly a person may
conspire for the commission of a crime by a third person,”
even if “she could not commit the substantive crime”
herself. Id., at 144–145.2 The dissent argued that this
holding effectively turned every woman who acquiesced in
a covered interstate trip into a conspirator, see id., at 148
(opinion of Lamar, J.), but the Court disagreed. The Court
acknowledged that “there may be a degree of coöperation”
insufficient to make a woman a conspirator, but it refused
to rule out the possibility that a woman could conspire to
cause herself to be transported. Id., at 144. To illustrate
this point, the Court provided the example of a woman
who played an active role in planning and carrying out the
trip.3
The Court expanded on these points in Gebardi v.
——————
2 The Court assumed that Holte could not be convicted as a principal
for the substantive offense of causing herself to be transported across
state lines. But the Court noted that it might be possible for a woman
to violate §2 of the Mann Act in a different way: by “aiding in procuring
any form of transportation for” a covered interstate trip. Holte, 236
U.S., at 144; see 36 Stat. 825 (“aid or assist in obtaining transporta­
tion”). If a woman could commit that substantive §2 violation, the
Court explained, there is no reason why she could not also be convicted
of conspiring to commit that offense. See 236 U.S., at 145. The Court,
however, refused to hold that this was the only ground on which a
woman like Holte could be convicted for conspiring to violate §2. Id., at
144–145. It thus addressed the broader question of whether it was
possible for a woman in Holte’s position to commit the offense of con­
spiring “that Laudenschleger should procure transportation and should
cause [Holte] to be transported.” Id., at 144.
3 The Court wrote:
“Suppose, for instance, that a professional prostitute, as well able to
look out for herself as was the man, should suggest and carry out a
journey within the act of 1910 in the hope of blackmailing the man, and
should buy the railroad tickets, or should pay the fare from Jersey City
to New York, she would be within the letter of the act of 1910, and we
see no reason why the act should not be held to apply.” Id., at 145.
 Cite as: 578 U. S. ____ (2016) 9
Opinion of the Court
United States, 287 U.S. 112 (1932), another Mann Act
conspiracy case. A man and a woman were convicted for
conspiring to transport the woman from one state to an­
other for an immoral purpose. Id., at 115–116. In decid­
ing the case, the Gebardi Court explicitly reaffirmed the
longstanding principle that “[i]ncapacity of one to commit
the substantive offense does not necessarily imply that he
may with impunity conspire with others who are able to
commit it.” Id., at 120. Moreover, the Court fully accepted
Holte’s holding that a woman could be convicted of con­
spiring to cause herself to be transported across state
lines. See 287 U.S., at 116–117. But the Court held that
the evidence before it was insufficient to support the con­
spiracy convictions because it “show[ed] no more than that
[the woman] went willingly upon the journeys for the
purposes alleged.” Id., at 117. Noting that there was no
evidence that the woman was “the active or moving spirit
in conceiving or carrying out the transportation,” the
Court held that the evidence of her “mere consent” or
“acquiescence” was not enough. Id., at 117, 123.4
——————
4 The path of reasoning by which the Gebardi Court reached these
conclusions was essentially as follows:
First, the Court perceived in §2 of the Mann Act a congressional
judgment that a woman should not be convicted for the offense created
by that provision if she did no more than consent to or acquiesce in the
interstate trip. Gebardi, 287 U.S., at 123. The Court concluded that
the transported woman could never be convicted under the language
prohibiting a person from transporting a woman or causing a woman to
be transported across state lines for an immoral purpose. See id., at
118–119 (“The Act does not punish the woman for transporting her­
self ”). And with respect to the statutory language making it a crime to
“ ‘aid or assist’ someone else in transporting or in procuring transporta­
tion for herself,” the Court held that aiding and assisting requires more
than mere “consent” or “acquiescence.” Id., at 119; see also Rosemond
v. United States, 572 U. S. ___, ___–___ (2014) (slip op., at 7–9) (aiding
and abetting requires intent to facilitate commission of offense).
Second, turning to the issue of conspiracy, the Court reasoned that
something more than the woman’s mere consent or acquiescence was
10 OCASIO v. UNITED STATES
Opinion of the Court
Holte and Gebardi make perfectly clear that a person
may be convicted of conspiring to commit a substantive
offense that he or she cannot personally commit. They
also show that when that person’s consent or acquiescence
is inherent in the underlying substantive offense, some­
thing more than bare consent or acquiescence may be
needed to prove that the person was a conspirator.
B
These basic principles of conspiracy law resolve this
case. In order to establish the existence of a conspiracy to
violate the Hobbs Act, the Government has no obligation
to demonstrate that each conspirator agreed personally to
commit—or was even capable of committing—the substan­
tive offense of Hobbs Act extortion. It is sufficient to prove
that the conspirators agreed that the underlying crime be
committed by a member of the conspiracy who was capable
of committing it. In other words, each conspirator must
have specifically intended that some conspirator commit
each element of the substantive offense.5
That is exactly what happened here: Petitioner, Moreno,
and Mejia “share[d] a common purpose,” namely, that
petitioner and other police officers would commit every
element of the substantive extortion offense. Salinas, 522
U.S., at 63–64. Petitioner and other officers would obtain
property “under color of official right,” something that
Moreno and Mejia were incapable of doing because they
were not public officials. And petitioner and other officers
——————
needed to avoid undermining the congressional judgment that it saw in
§2. The Court framed its holding as follows: “[W]e perceive in the
failure of the Mann Act to condemn the woman’s participation in those
transportations which are effected with her mere consent, evidence of
an affirmative legislative policy to leave her acquiescence unpunished.”
Gebardi, supra, at 123 (emphasis added).
5 Section 371 also requires that one of the conspirators commit an
overt act in furtherance of the offense. Petitioner does not dispute that
this element was satisfied.
Cite as: 578 U. S. ____ (2016) 11
Opinion of the Court
would obtain that money from “another,” i.e., from Mo-
reno, Mejia, or Majestic. Although Moreno and Mejia were
incapable of committing the underlying substantive of­
fense as principals,6 they could, under the reasoning of
Holte and Gebardi, conspire to commit Hobbs Act extor­
tion by agreeing to help petitioner and other officers com­
mit the substantive offense. See Holte, 236 U.S., at 145
(“[A] conspiracy with an officer or employé of the govern­
ment or any other for an offence that only he could commit
has been held for many years to fall within the conspiracy
section . . . of the penal code”); see also Salinas, supra, at
63–64; Gebardi, supra, at 120–121; Rabinowich, 238 U.S.,
at 86. For these reasons, it is clear that petitioner could
be convicted of conspiring to obtain property from the
shopowners with their consent and under color of official
right.
C
In an effort to escape this conclusion, petitioner argues
that the usual rules do not apply to the type of Hobbs Act
conspiracy charged in this case. His basic argument, as
ultimately clarified,7 is as follows. All members of a con­
——————
6 The Government argues that the lower courts have long held that a
private person may be guilty of this type of Hobbs Act extortion as an
aider and abettor. See Brief for United States 36–37. We have no
occasion to reach that question here.
7 Petitioner’s position has evolved over the course of this litigation.
As noted, petitioner requested a jury instruction stating that “[i]n 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.” App. 53. Under this instruc­
tion, as long as the shopowners were named as conspirators, petitioner
could not have been convicted even if there was ample evidence to prove
that he conspired with other Baltimore officers to obtain money from
the shopowners. (And, indeed, when he first raised his Brock argu­
ment, see United States v. Brock, 501 F.3d 762 (CA6 2007), another
officer, Manrich, was still in the case and was charged with the same
12 OCASIO v. UNITED STATES
Opinion of the Court
spiracy must share the same criminal objective. The
objective of the conspiracy charged in this case was to
obtain money “from another, with his consent . . . under
——————
conspiracy.)
The petition for a writ of certiorari appears to have been based on
this same broad argument. The question presented was phrased as
follows: “Does a conspiracy to commit extortion require that the con­
spirators agree to obtain property from someone outside the conspir-
acy?” Pet. for Cert. i. And the argument in petitioner’s opening brief
was similar. See Brief for Petitioner 1 (arguing that “a Hobbs Act
conspiracy requires that the conspirators agree among themselves to
wrongly obtain property from someone outside the ring of conspiracy”).
As the Government’s brief pointed out, this argument has strange
implications. See Brief for United States 27. Assume that there was
sufficient evidence to prove that petitioner conspired with other Balti­
more officers to obtain money from Moreno and Mejia. Under petition­
er’s original, broad argument, this charge would be valid so long as
Moreno and Mejia were not named as conspirators, but naming them in
the indictment would render the charge invalid. Indictments, however,
very often do not attempt to name all the conspirators, and the indict­
ment in this case did not do so. See App. 36 (charging that petitioner
and Manrich conspired with, among others, persons unknown). It
would be very strange if the decision to name Moreno and Mejia ren­
dered an otherwise valid charge defective. (Of course, petitioner might
make the even broader argument that the conspiracy charge would fail
if Moreno and Mejia, although not named as conspirators in the indict­
ment, were later listed as conspirators in response to a bill of particu­
lars or if the Government took that position at trial, perhaps by seeking
to introduce their out-of-court statements under the co-conspirator
exemption from the hearsay rule.)
In response to the Government’s argument, petitioner’s reply brief
claimed that his argument is actually the narrower one that we now
consider, i.e., that, as a matter of law, Moreno and Mejia cannot be
members of a conspiracy that has as its aim the obtaining of money
from them with their consent and under color of official right. See
Reply Brief 17–20. The reply brief contends that acceptance of this
narrower argument requires his acquittal because there is insufficient
evidence to show that he conspired with anyone other than Moreno and
Mejia. Ibid. The Court of Appeals, however, concluded otherwise. See
750 F.3d 399, 412, n. 14 (CA4 2014). Nevertheless, because that
court’s decision was based primarily on other grounds, we address
petitioner’s argument as ultimately refined.
Cite as: 578 U. S. ____ (2016) 13
Opinion of the Court
color of official right.” But Moreno and Mejia did not have
the objective of obtaining money “from another” because
the money in question was their own. Accordingly, they
were incapable of being members of the conspiracy
charged in this case. And since there is insufficient evi­
dence in the record to show that petitioner conspired with
anyone other than Moreno and Mejia, he must be acquit­
ted. See Reply Brief 3–11, 17–20.
This argument fails for a very simple reason: Contrary
to petitioner’s claim, he and the shopowners did have a
common criminal objective. The objective was not that
each conspirator, including Moreno and Mejia, would
obtain money from “another” but rather that petitioner
and other Baltimore officers would do so. See App. 36–37,
Superseding Indictment ¶11 (“It was a purpose of the
conspiracy for Moreno and Mejia to enrich over 50 BPD
[Baltimore Police Department] Officers . . . in exchange for
the BPD Officers’ exercise of their official positions and
influence to cause vehicles to be towed or otherwise deliv­
ered to Majestic”). Petitioner does not dispute that he was
properly convicted for three substantive Hobbs Act viola­
tions based on proof that he obtained money “from another.”
The criminal objective on which petitioner, Moreno, and
Mejia agreed was that petitioner and other Baltimore
officers would commit substantive violations of this na­
ture. Thus, under well-established rules of conspiracy
law, petitioner was properly charged with and convicted of
conspiring with the shopowners. Nothing in the text of
the Hobbs Act even remotely undermines this conclusion,
and petitioner’s invocation of the rule of lenity8 and prin­
——————
8 That rule applies only when a criminal statute contains a “grievous
ambiguity or uncertainty,” and “only if, after seizing everything from
which aid can be derived,” the Court “can make no more than a guess
as to what Congress intended.” Muscarello v. United States, 524 U.S.
125, 138–139 (1998) (internal quotation marks omitted).
14 OCASIO v. UNITED STATES
Opinion of the Court
ciples of federalism9 is unavailing.
1
Petitioner argues that our interpretation makes the
Hobbs Act sweep too broadly, creating a national antibrib­
ery law and displacing a carefully crafted network of state
and federal statutes. He contends that a charge of con­
spiring to obtain money from a conspirator with his con­
sent and under color of official right is tantamount to a
charge of soliciting or accepting a bribe and that allowing
such a charge undermines 18 U.S. C. §666 (a federal
bribery statute applicable to state and local officials) and
state bribery laws. He also argues that extortion conspir­
acies of this sort were not known prior to the enactment of
the Hobbs Act and that there is no evidence that Congress
meant for that Act to plow this new ground.
The subtext of these arguments is that it seems unnatu­
ral to prosecute bribery on the basis of a statute prohibit­
ing “extortion,” but this Court held in Evans that Hobbs
Act extortion “under color of official right” includes the
“rough equivalent of what we would now describe as ‘tak­
ing a bribe.’ ” 504 U.S., at 260. Petitioner does not ask us
to overturn Evans, see, e.g., Brief for Petitioner 1; Tr. of
Oral Arg. 4–5, 12–13, and we have no occasion to do so.
Having already held that §1951 prohibits the “rough
equivalent” of bribery, we have no principled basis for
precluding the prosecution of conspiracies to commit that
same offense.10
——————
9 We are not unmindful of the federalism concerns implicated by this
case, but those same concerns were raised—and rejected—in Evans v.
United States, 504 U.S. 255 (1992), see id., at 290 (THOMAS, J., dissent­
ing) (“The Court’s construction of the Hobbs Act is repugnant . . . to
basic tenets of federalism”), which we accept as controlling here, see
Part II–C–1, infra.
10 JUSTICE THOMAS argues that Evans was wrongly decided, and his
position makes sense to the extent that he simply refuses to accept that
case. But it founders insofar as it suggests that even if Evans is ac­
Cite as: 578 U. S. ____ (2016) 15
Opinion of the Court
Petitioner also exaggerates the reach of our decision. It
does not, as he claims, dissolve the distinction between
extortion and conspiracy to commit extortion. Because
every act of extortion under the Hobbs Act requires prop­
erty to be obtained with “consent,” petitioner argues, proof
of that consent will always or nearly always establish the
existence of a conspiratorial agreement and thus allow the
Government to turn virtually every such extortion case
into a conspiracy case. But there are plenty of instances
in which the “consent” required under the Hobbs Act will
not be enough to constitute the sort of agreement needed
under the law of conspiracy.
As used in the Hobbs Act, the phrase “with his consent”
is designed to distinguish extortion (“obtaining of property
from another, with his consent,” 18 U.S. C. §1951(b)(2)
(emphasis added)) from robbery (“obtaining of personal
property from the person or in the presence of another,
against his will,” §1951(b)(1) (emphasis added)). Thus,
“consent” simply signifies the taking of property under
circumstances falling short of robbery, and such “consent”
is quite different from the mens rea necessary for a
conspiracy.
This conclusion is clear from the language of §1951
prohibiting the obtaining of property “from another, with
his consent, induced by wrongful use of actual or threat-
ened force, violence, or fear.” §1951(b)(2) (emphasis
added). This language applies when, for example, a store
——————
cepted in relation to substantive Hobbs Act charges, it should not be
extended to conspiracy cases. See post, at 1 (dissenting opinion) (“I
would not extend Evans’ errors further”); post, at 3 (“[The Court’s]
holding . . . needlessly extends Evans’ error to the conspiracy context”);
post, at 4 (“The Court today takes another step away from the common-
law understanding of extortion that the Hobbs Act adopted”). It would
be very strange if a provision of the criminal code meant one thing with
respect to charges of a substantive violation but something very differ­
ent in cases involving a conspiracy to commit the same offense.
16 OCASIO v. UNITED STATES
Opinion of the Court
owner makes periodic protection payments to gang mem­
bers out of fear that they will otherwise trash the store.
While these payments are obtained with the store owner’s
grudging consent, the store owner, simply by making the
demanded payments, does not enter into a conspiratorial
agreement with the gang members conducting the shake­
down. See Salinas, 522 U.S., at 63–65 (conspirators must
pursue “the same criminal objective”); United States v.
Bailey, 444 U.S. 394, 405 (1980) (conspiracy requires “a
heightened mental state”); Anderson v. United States, 417
U.S. 211, 223 (1974) (“the prosecution must show that the
offender acted with a specific intent”). Just as mere ac­
quiescence in a Mann Act violation is insufficient to create
a conspiracy, see Gebardi, 287 U.S., at 121–123; Holte,
236 U.S., at 145, the minimal “consent” required to trig­
ger §1951 is insufficient to form a conspiratorial agree­
ment. Our interpretation thus does not turn virtually
every act of extortion into a conspiracy.
Nor does our reading transform every bribe of a public
official into a conspiracy to commit extortion. The “con­
sent” required to pay a bribe does not necessarily create a
conspiratorial agreement. In cases where the bribe payor
is merely complying with an official demand, the payor
lacks the mens rea necessary for a conspiracy. See Sa-
linas, supra, at 63–65; Bailey, supra, at 405; Anderson,
supra, at 223; Gebardi, supra, at 121–123. For example,
imagine that a health inspector demands a bribe from a
restaurant owner, threatening to close down the restau­
rant if the owner does not pay. If the owner reluctantly
pays the bribe in order to keep the business open, the
owner has “consented” to the inspector’s demand, but
this mere acquiescence in the demand does not form a
conspiracy.11
——————
11 Petitioner also claims that naming Moreno and Mejia as conspira­
tors opened the door for prosecutors to employ the potent party-joinder
Cite as: 578 U. S. ____ (2016) 17
Opinion of the Court
2
While petitioner exaggerates the impact of our decision,
his argument would create serious practical problems.
The validity of a charge of Hobbs Act conspiracy would
often depend on difficult property-law questions having
little to do with criminal culpability. In this case, for
example, ownership of the money obtained by petitioner is
far from clear. It appears that the funds came from Ma­
jestic’s account, App. 97–98, 149, and there is evidence
that during the period of petitioner’s membership in the
conspiracy, Majestic was converted from a limited liability
company to a regular business corporation, id., at 145;
App. in No. 12–4462 (CA4), pp. 655–656, 736. After that
transformation, the money obtained by petitioner may
have come from corporate funds. A corporation is an
entity distinct from its shareholders, and therefore, even
under petitioner’s interpretation of the applicable law,
Moreno and Mejia would have agreed that petitioner
would obtain money “from another,” not from them.
Suppose that Moreno or Mejia had made the payments
by taking money from a personal bank account. Would
that dictate a different outcome? Or suppose that Majestic
was a partnership and the payments came from a com-
pany account. Would that mean that Moreno agreed that
officers would obtain money “from another” insofar as they
would obtain Mejia’s share of the partnership funds and
that Mejia similarly agreed that officers would obtain
money “from another” insofar as they would obtain the
——————
and evidentiary rules that conspiracy charges make available. See
Brief for Petitioner 10–11, 18, 26–27, 37. But the naming of the
shopowners had no effect on joinder. The only other defendant named
in the superseding indictment, Manrich, could have been joined even if
the shopowners had not been named. Nor did naming Moreno and
Mejia have any effect on the admissibility of evidence of overt acts
committed by the Baltimore officers named as petitioner’s
co-conspirators.
18 OCASIO v. UNITED STATES
Opinion of the Court
share belonging to Moreno?
Or consider this example. Suppose that the owner and
manager of a nightclub reach an agreement with a public
official under which the owner will bribe the official to
approve the club’s liquor license application. Under peti­
tioner’s approach, the public official and the club manager
may be guilty of conspiring to commit extortion, because
they agreed that the official would obtain property “from
another”—that is, the owner. But as “the ‘another’ from
whom the property is obtained,” Reply Brief 10, the owner
could not be prosecuted. There is no apparent reason,
however, why the manager but not the owner should be
culpable in this situation.
III
A defendant may be convicted of conspiring to violate
the Hobbs Act based on proof that he reached an agree­
ment with the owner of the property in question to obtain
that property under color of official right. Because peti­
tioner joined such an agreement, his conspiracy conviction
must stand.
The judgment of the United States Court of Appeals for
the Fourth Circuit is affirmed.
It is so ordered.
Cite as: 578 U. S. ____ (2016) 1
BREYER, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–361
_________________
SAMUEL OCASIO, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[May 2, 2016]
JUSTICE BREYER, concurring.
I agree with the sentiment expressed in the dissenting
opinion of JUSTICE THOMAS that Evans v. United States,
504 U.S. 255 (1992), may well have been wrongly decided.
See post, at 1–2. I think it is an exceptionally difficult
question whether “extortion” within the meaning of the
Hobbs Act is really “the rough equivalent of . . . taking a
bribe,” Evans, 504 U.S., at 260 (internal quotation marks
omitted)—especially when we admittedly decided that
question in that case without the benefit of full briefing on
extortion’s common-law history, see id., at 272 (O’Connor,
J., concurring in part and concurring in judgment)
(“Neither party in this case has briefed or argued the
question”).
The present case underscores some of the problems that
Evans raises. For example, as in the scenario presented
by today’s Court, where the public health inspector asks
for money from a restaurant owner in exchange for favor-
able reports, see ante, at 16, courts (and juries) will have
to draw the difficult distinction between the somewhat
involuntary behavior of the bribe payor and the voluntary
behavior of the same bribe payor, which may determine
whether there is or is not a conspiracy. Compare United
States v. Holte, 236 U.S. 140, 144–145 (1915) (finding that
a transported woman could conspire to violate the Mann
Act), with Gebardi v. United States, 287 U.S. 112, 117,
2 OCASIO v. UNITED STATES
BREYER, J., concurring
123 (1932) (finding no such conspiracy).
Nonetheless, we must in this case take Evans as good
law. See Tr. of Oral Arg. 20 (Petitioner “take[s] th[e]
holding [in Evans] as a given”). That being so, I join the
majority’s opinion in full.
Cite as: 578 U. S. ____ (2016) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–361
_________________
SAMUEL OCASIO, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[May 2, 2016]
JUSTICE THOMAS, dissenting.
Today the Court holds that an extortionist can conspire
to commit extortion with the person whom he is extorting.
See ante, at 18. This holding further exposes the flaw in
this Court’s understanding of extortion. In my view, the
Court started down the wrong path in Evans v. United
States, 504 U.S. 255 (1992), which wrongly equated extor-
tion with bribery. In so holding, Evans made it seem
plausible that an extortionist could conspire with his
victim. Rather than embrace that view, I would not extend
Evans’ errors further. Accordingly, I respectfully dissent.
I
The Hobbs Act makes it a crime to “obstruc[t], dela[y],
or affec[t] commerce . . . by . . . extortion.” 18 U.S. C.
§1951(a). The 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.” §1951(b)(2).
In Evans, this Court held that, to obtain a conviction for
extortion “under color of official right,” the Government
need show only “that a public official has obtained a pay-
ment to which he was not entitled, knowing that the pay-
ment was made in return for official acts.” 504 U.S., at
268. The Court therefore interpreted “extortion” under
the Hobbs Act to be “the rough equivalent of . . . ‘taking a
2 OCASIO v. UNITED STATES
THOMAS, J., dissenting
bribe.’ ” Id., at 260.
I dissented in Evans because the Court’s holding disre-
garded the “definite and well-established meaning” of the
“under color of official right” element of extortion. Id., at
279 (internal quotation marks omitted). “ ‘At common law
it was essential that . . . money or property be obtained
under color of office, that is, under the pretense that the
officer was entitled thereto by virtue of his office. The
money or thing received must have been claimed or ac-
cepted in right of office, and the person paying must have
yielded to official authority.’ ” Ibid. (quoting 3 R. Ander-
son, Wharton’s Criminal Law and Procedure §1393,
pp. 790–791 (1957); emphasis deleted). When Congress
enacted the Hobbs Act in 1946, “the offense was [thus]
understood to involve not merely a wrongful taking
by a public official, but a wrongful taking under a false
pretense of official right.” 504 U.S., at 281 (emphasis
deleted).
Given the established meaning of under-color-of-official-
right extortion adopted in the Hobbs Act, the Court in
Evans erred in equating common-law extortion with tak-
ing a bribe. Id., at 283. Bribery and extortion are differ-
ent crimes. Ibid. With extortion, “the public official is the
sole wrongdoer.” Ibid. Because the official “acts ‘under
color of office,’ the law regards the payor as an innocent
victim and not an accomplice.” Ibid. An official who
solicits or takes a bribe, by contrast, does not do so “under
color of office”—that is, “under [a] pretense of official
entitlement.” Ibid. With bribery, “the payor knows the
recipient official is not entitled to the payment,” and “he,
as well as the official, may be punished for the offense.”
Ibid. (emphasis deleted).
II
Relying on Evans’ definition of Hobbs Act extortion, see
ante, at 2–3, 14, the Court holds that an extortionist can
Cite as: 578 U. S. ____ (2016) 3
THOMAS, J., dissenting
conspire to commit extortion with the person whom he is
extorting. Ante, at 10–11, 18. That holding is irreconcila-
ble with a correct understanding of Hobbs Act extortion
and needlessly extends Evans’ error to the conspiracy
context.
The general federal conspiracy statute makes it a crime
for “two or more persons [to] conspire . . . to commit any
offense against the United States.” 18 U.S. C. §371. To
be guilty of conspiracy to commit under-color-of-official-
right extortion, then, two or more persons must conspire
to “obtai[n] . . . property from another, with his consent,
induced . . . under color of official right.” §1951(b)(2).
Under a correct understanding of Hobbs Act extortion, it
is illogical and wrong to say that two people conspired to
extort one of themselves. As explained, in a Hobbs Act
extortion case, the only perpetrator is the public official;
the payor is a victim and not a participant. See Evans,
504 U.S., at 283 (THOMAS, J., dissenting). That under-
standing is irreconcilable with the view that an extortion-
ist and his payor-victim can be co-conspirators to extortion
of the payor. If a payor conspires with a public official for
the payor to pay that official, then—whatever the two can
be said to have done—they have not conspired to obtain
payments to that official “under . . . pretense of official
entitlement.” Ibid. The extortionist and payor both know
that the official is not entitled to the payments as a matter
of his office. They have not conspired to commit Hobbs Act
extortion.
The record confirms that the scheme here did not in-
volve extortion as the common law understood that crime.
Far from victimizing repair-shop owners Alexis Moreno
and Edwin Mejia, the allegedly extortionate scheme bene-
fited them and their repair shop. Over time, 90% or more
of the shop’s business came from paid-for referrals from
police officers. Moreno and Mejia worked with Ocasio and
other officers to maximize the shop’s profits from the
4 OCASIO v. UNITED STATES
THOMAS, J., dissenting
scheme. Moreno and Mejia both pleaded guilty to Hobbs
Act extortion and conspiracy—belying any claim that they
were innocent victims. The Government itself does not
maintain that the repair-shop owners paid Ocasio based
on his assertion of “a false pretense of official right to the
payment[s].” Id., at 282 (THOMAS, J., dissenting). The
Government is instead emphatic that Moreno and Mejia
“participated as full partners” in the scheme and that
“[t]he record . . . refutes any suggestion that [they] were
the ‘victims’ of th[e] scheme.” Brief for United States 41.
Whatever crime Ocasio may have committed, it was not a
conspiracy to commit extortion.
To be sure, the Court’s conclusion is plausible under
Evans’ redefinition of extortion. But that is a reason not
to extend Evans’ error. Only by blurring the distinction
between bribery and extortion could Evans make it seem
plausible that an extortionist and a victim can conspire to
extort the victim. The Court today takes another step
away from the common-law understanding of extortion
that the Hobbs Act adopted.
III
The Court’s decision is unfortunate because it expands
federal criminal liability in a way that conflicts with prin-
ciples of federalism. Even when Evans was decided nearly
25 years ago, the Hobbs Act had already “served as the
engine for a stunning expansion of federal criminal juris-
diction into a field traditionally policed by state and local
laws—acts of public corruption by state and local officials.”
504 U.S., at 290 (THOMAS, J., dissenting). By disregard-
ing the distinction between extortion and bribery, Evans
expanded the Hobbs Act to allow federal prosecutors to
reach more conduct by state and local government offi-
cials. See id., at 291–294. That expansion was unwar-
ranted. Congress had not made its intent to regulate state
officials “unmistakably clear in the language of the” Hobbs
Cite as: 578 U. S. ____ (2016) 5
THOMAS, J., dissenting
Act, Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) (inter-
nal quotation marks omitted), so this Court had no basis
for reading the Hobbs Act so expansively. Evans, supra,
at 291–292 (THOMAS, J., dissenting); see Jones v. United
States, 529 U.S. 848, 858 (2000) (“[U]nless Congress
conveys its purpose clearly, it will not be deemed to
have significantly changed the federal-state balance in
the prosecution of crimes” (internal quotation marks
omitted)).
Today the Court again broadens the Hobbs Act’s reach
to enable federal prosecutors to punish for conspiracy all
participants in a public-official bribery scheme. The inva-
sion of state sovereign functions is again substantial. The
Federal Government can now more expansively charge
state and local officials. And it can now more easily obtain
pleas or convictions from these officials: Because the Gov-
ernment can prosecute bribe-payors with sweeping con-
spiracy charges, it will be easier to induce those payors to
plead out and testify against state and local officials. The
Court thus further wrenches from States the presumptive
control that they should have over their own officials’
wrongdoing.
As in Evans, the Court cites no statutory text “clearly”
authorizing this intrusion into matters presumptively left
to the States. Jones, supra, at 858. As in Evans, there is
no need for the Court’s overreach because state law al-
ready punishes the conduct at issue here. See Md. Crim.
Law Code Ann. §9–201 (2012) (punishing bribery of and
bribery by a public official); cf. United States v. Brock, 501
F.3d 762, 769 (CA6 2007) (“No one doubts that the States
have criminal laws prohibiting their citizens from bribing
public officials. [We cannot think of] any reason to doubt
the States’ willingness to invoke these laws when their
citizens engage in [a brazen bribery scheme]”). And, as in
Evans, the Court reaches its decision with barely a nod to
the sovereignty interests that it tramples. See ante, at
6 OCASIO v. UNITED STATES
THOMAS, J., dissenting
13–14, and n. 9 (summarily dismissing as “unavailing”
Ocasio’s “invocation of . . . principles of federalism”). As in
Evans, I cannot agree.
* * *
Consistent with the Hobbs Act’s text, I would hold that
an extortionist cannot conspire to commit extortion with
the person whom he is extorting. Accordingly, I would
reverse the Court of Appeals’ judgment upholding Ocasio’s
conspiracy conviction.
For these reasons, I respectfully dissent.
Cite as: 578 U. S. ____ (2016) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–361
_________________
SAMUEL OCASIO, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[May 2, 2016]
JUSTICE SOTOMAYOR, with whom THE CHIEF JUSTICE
joins, dissenting.
If a group of conspirators sets out to extort “another”
person, we ordinarily think that they are proposing to
extort money or property from a victim outside their
group, not one of themselves. Their group is the conspira-
torial entity and the victim is “another” person.
But in upholding the conspiracy conviction here, the
Court interprets the phrase extorting property “from
another” in the Hobbs Act contrary to that natural un-
derstanding. It holds that a group of conspirators can
agree to obtain property “from another” in violation of the
Act even if they agree only to transfer property among
themselves.
That is not a natural or logical way to interpret the
phrase “from another.” I respectfully dissent.
I
The indictment here charged Ocasio, a former Baltimore
police officer, with participating in a kickback scheme
engineered by the owners of a local auto repair shop,
brothers Herman Moreno and Edwin Mejia. Ocasio and
other Baltimore officers referred car-accident victims to
the brothers’ shop for body repair work. In exchange,
Moreno and Mejia paid Ocasio between $150 and $300 for
each referral. The indictment pleaded that Ocasio, other
2 OCASIO v. UNITED STATES
SOTOMAYOR, J., dissenting
officers, and the brothers conspired in violation of the
federal conspiracy statute, 18 U.S. C. §371, to commit
extortion in violation of the Hobbs Act, §1951.
The federal conspiracy statute applies whenever “two or
more persons conspire” to commit a federal offense and at
least one of them acts in furtherance of the offense. §371.
The Hobbs Act, a federal offense, punishes “[w]hoever”
commits “extortion,” §1951(a), and defines “extortion” as
“the obtaining of property from another, with his consent,
. . . under color of official right,” §1951(b)(2). “Extortion”
includes taking a bribe. See Evans v. United States, 504
U.S. 255 (1992).1 Putting this all together, in charging
Ocasio with conspiring to commit extortion, prosecutors
charged him with agreeing to take bribes “from another”
person. §1951(b)(2).
At trial, rather than attempt to prove that Ocasio
agreed with other officers to take bribes from Moreno and
Mejia, the Government contended that when Ocasio
agreed to take the brothers’ bribes, he and the brothers
agreed that Ocasio would obtain property “from another”
person, i.e., someone other than himself. Ocasio argued,
by contrast, that it is impossible for a group of people to
agree to obtain property “from another” without evidence
that “another” person outside the conspiratorial agree-
ment gave up their property. Ocasio conceded that he
alone could violate the Hobbs Act by taking a bribe from
one of the brothers, but maintained that he and the
brothers as a group could not also violate the conspiracy
statute by agreeing that one of them would take a
bribe from themselves. This Court now rejects Ocasio’s
interpretation.
——————
1 JUSTICE THOMAS sets forth why he believes Evans was wrongly de-
cided. Ante, at 1 (dissenting opinion). No party asks us to overrule
Evans in this case and so that question is not considered here.
Cite as: 578 U. S. ____ (2016) 3
SOTOMAYOR, J., dissenting
II
The Hobbs Act criminalizes extortion where a public
official obtains property “from another.” §1951(b)(2). The
question here is how to define “another” in the context of a
conspiracy to commit extortion. “Another” is a relational
word. It describes how one entity is connected to a differ-
ent entity. In particular, it describes an entity “different
or distinct from the one first considered.” Merriam-
Webster’s Collegiate Dictionary 51 (11th ed. 2003).2
In this case—a conspiracy to violate the Hobbs Act by
obtaining property “from another”—the relevant entity to
consider is the conspiratorial group. The federal generic
conspiracy statute makes it a crime for two or more people
to “conspire.” §371. This Court gives the word “conspire”
its conventional meaning. See Salinas v. United States,
522 U.S. 52, 63 (1997). To “conspire” is to agree, and the
crux of a “conspiracy” is a “collective criminal agreement—
[a] partnership in crime.” Callanan v. United States, 364
U.S. 587, 593 (1961).
The most natural reading of “conspiring” to obtain
property “from another,” then, is a collective agreement to
obtain property from an entity different or distinct from
the conspiracy. But Ocasio, Moreno, and Mejia did not
agree that Ocasio would obtain property from a person
different or distinct from the conspirators as a group.
They agreed only that Ocasio would take property from
——————
2 See also Oxford English Dictionary 348 (1st ed. 1933) (“One more,
one further, originally a second of two things; subsequently extended to
anything additional or remaining beyond those already considered; an
additional” (emphasis deleted)); Oxford English Dictionary 495 (2d ed.
1989) (same); Webster’s New International Dictionary 110 (2d ed. 1950)
(“A different, distinct, or separate (one) from the one considered”); New
Oxford American Dictionary 65 (3d ed. 2010) (“used to refer to a differ-
ent person or thing from one already mentioned or known about”);
American Heritage Dictionary 74 (4th ed. 2000) (“Distinctly different
from the first”).
4 OCASIO v. UNITED STATES
SOTOMAYOR, J., dissenting
Moreno and Mejia—people who are part of rather than
distinct from the conspiracy. “These three people did not
agree, and could not have agreed, to obtain property from
‘another’ when no other person was involved.” United
States v. Brock, 501 F.3d 762, 767 (CA6 2007).
This understanding of “another”—that it refers to some-
one outside the conspiracy—is consistent not only with the
plain meaning of the Hobbs Act, but also with this Court’s
precedent explaining that the purpose of conspiracy law is
to target the conduct of group crimes. Conspiracy law
punishes the “collective criminal agreement,” because a
“[c]ombination” or “[g]roup association for criminal pur-
poses” is more dangerous than separate individuals acting
alone. Callanan, 364 U.S., at 593. A conspiracy is “a
partnership in crime,” a “confederation,” a “scheme,” and
an “enterprise.” Pinkerton v. United States, 328 U.S. 640,
644, 646–647 (1946). Accordingly, the law treats a con-
spiracy, at least in some ways, as an entity distinct from
its individual members.
A defendant is guilty of conspiracy only if he agrees that
the conspiratorial group intends to commit all the ele-
ments of the criminal offense. Salinas, 522 U.S., at 65 (“A
conspirator must intend to further an endeavor which, if
completed, would satisfy all of the elements of a substan-
tive criminal offense”). Because the focus is on the group’s
conduct—what “endeavor” they have agreed to commit
collectively—when individual members of a conspiracy act
to advance the conspiratorial endeavor, they act not on
behalf of themselves, but as “agents for [the conspiracy’s]
performance.” Hyde v. United States, 225 U.S. 347, 369
(1912). It does not matter if a single member of the group
undertakes to commit every element of the offense. Sa-
linas, 522 U.S., at 63–64 (“The partners in the criminal plan
must agree to pursue the same criminal objective and may
divide up the work, yet each is responsible for the acts of
each other”). When that one member acts as an agent for
Cite as: 578 U. S. ____ (2016) 5
SOTOMAYOR, J., dissenting
the conspiracy in furthering their collective endeavor, his
actions are “attributable to the others,” not just the in-
dividual agent alone. Pinkerton, 328 U.S., at 647; see
also id., at 646 (“[S]o long as the partnership in crime
continues, the partners act for each other in carrying it
forward”).
Accordingly, whether a criminal conspiracy exists de-
pends on what the conspirators agreed to do as a group.
This principle confirms that “from another” is best under-
stood as relating the conspiratorial enterprise to another
person outside the conspiracy. A conspiracy to obtain
property “from another,” then, is the group agreement that
at least one member of the group will obtain property from
someone who is not a part of their endeavor.
Departing from this natural reading of the text, the
Court holds that Ocasio can be punished for conspiracy
because Ocasio obtained property “from another” (Moreno
and Mejia) and Ocasio, Moreno, and Mejia agreed that
Ocasio would engage in that conduct. In order to reach
this conclusion, the Court implicitly assumes that the
Hobbs Act’s use of “from another” takes as its reference
point only a single member of the conspiracy, here, Ocasio,
rather than the group of conspirators as a whole. See
ante, at 5.
But what is the basis for that assumption? The Court
never explains. It is not based on the plain language of
the Hobbs Act. A natural reading of the text seems to
foreclose it—Moreno and Mejia are not “distinct or differ-
ent from” the group that formed the “collective criminal
agreement.” And the Court’s assumption does not follow
from prior precedent or any first principles of conspiracy
law. See Part III, infra.
Both the plain meaning of the statute and general prin-
ciples of conspiracy law lead to the same conclusion: A
conspiracy to commit extortion by obtaining property
“from another” in violation of the Hobbs Act should exist
6 OCASIO v. UNITED STATES
SOTOMAYOR, J., dissenting
only when the conspirators agree to obtain property from
someone outside the conspiracy.
III
The Court does not ground its decision in the Hobbs
Act’s use of the language “from another.” It instead relies
on what it says are “age-old principles of conspiracy law.”
Ante, at 1. But it does so to no avail. Most of these so-
called principles are derived from decisions that turn on
interpreting the text of another federal statute—the Mann
Act. And the remaining generic principles the Court cites
do not resolve the precise question in this case: whether
the Hobbs Act’s use of the phrase obtain property “from
another” adopts the perspective of an individual conspira-
tor or the conspiratorial group as a collective.
The Court’s best support comes from cases interpreting
the Mann Act, which made it a crime for “any person [to]
knowingly transport . . . in interstate or foreign commerce
. . . any woman or girl for the purpose of prostitution or
debauchery.” Ante, at 7–11 (quoting ch. 395, 36 Stat. 825)
(emphasis deleted). In one of its decisions, this Court held
that even though the transported “woman or girl” was
ostensibly the victim of the crime, nothing in the statute
precluded prosecutors from also convicting the woman for
conspiring with another person to transport herself illegally.
United States v. Holte, 236 U.S. 140, 144 (1915). From
this, the Court derives a generic principle of conspiracy
law that a victim of Hobbs Act extortion can also be liable
as a co-conspirator, just like the victim of a Mann Act
violation can. Ante, at 8–11.
The Court stretches this Mann Act case beyond its
tethers. The Court in Holte based its analysis entirely on
the text of the Act, not generic principles of conspiracy
law. Unlike the Hobbs Act’s use of “another person,” the
Mann Act prohibits transporting “any woman.” Based on
this language, the Court concluded that a woman could be
Cite as: 578 U. S. ____ (2016) 7
SOTOMAYOR, J., dissenting
held liable for conspiring with others to violate the Act.
Holte, 236 U.S., at 144–45. For example, a “professional
prostitute” could “suggest and carry out a journey” and
“buy the railroad tickets.” Id., at 145; see also 36 Stat. 825
(Mann Act) (specifying that “procuring or obtaining, any
ticket or tickets” was assistance of a criminal sort). Thus,
the Court held, “she would be within the letter of the act
. . . , and we see no reason why the act should not be held
to apply.” 236 U.S., at 145 (emphasis added).
Moreover, because Holte based its holding on the text of
the relevant substantive offense, its reasoning is con-
sistent with this Court’s actual principles of conspiracy,
which adopt the perspective of the conspiratorial group to
determine if their agreed-upon conduct violated the text of
the statute. If the members of an alleged Mann Act con-
spiracy agree to transport illegally “any woman,” the
group enterprise can logically and naturally intend to
transport a female member of the group. But that logic
does not hold in this case, where the Hobbs Act requires
the conspirators to agree to obtain property “from another.”
“Any,” unlike “another,” is not a relational word that
requires determining who is in the group and who is out.
The Court similarly attempts to create a generic con-
spiracy principle when it cites Gebardi v. United States,
287 U.S. 112 (1932), another Mann Act case that relies on
the Act’s text. In Gebardi, the Court considered the ques-
tion whether a woman who merely acquiesced to being
transported could be held liable for conspiring to violate
the Act. The Court held that a conspiracy could exist only
if the woman aided and assisted in her own transporta-
tion—something more than “mere agreement” or “mere
acquiescence” to being transported. Id., at 119, 123. The
Court based this decision explicitly on the language of the
Mann Act, which “does not punish the woman for trans-
porting herself . . . . For the woman to fall within the ban
of the statute she must, at the least, ‘aid or assist’ some-
8 OCASIO v. UNITED STATES
SOTOMAYOR, J., dissenting
one else in transporting or in procuring transportation for
herself.” Id., at 118–119.
Accordingly, the Court reasoned, the “necessary implica-
tion” of Congress’ decision not to include a woman who
merely consents in the scope of the Act was “that when the
Mann Act and the conspiracy statute came to be construed
together, as they necessarily would be,” Congress did not
intend for that woman to nevertheless always be held
liable as a conspirator. Id., at 123. This Court later char-
acterized Gebardi’s holding as an “exceptio[n] of a limited
character” to ordinary conspiracy law based on the “defini-
tion of the substantive offense,” i.e., the text of the statute.
Pinkerton, 328 U.S., at 643. Whatever ordinary conspiracy
principles might dictate, it was clear what Congress in-
tended the outcome to be in that case.
The Court tries to elicit a general principle of conspiracy
law from Gebardi: that while the ostensible victim of the
statute—there a woman transported, here a person paying
a bribe—cannot be convicted as a co-conspirator if she
merely acquiesces to the transportation or bribe, an active
participant in the conspiratorial group can nevertheless be
found guilty of conspiracy. Ante, at 15–16. The Court
draws this rough analogy in an attempt to cabin the scope
of future Hobbs Act conspiracy charges to exclude poten-
tial defendants whose participation in extortion amounts
to no more than “mere acquiescence.” But this ignores the
reasoning of Gebardi—the Court’s reliance on the express
terms of the Mann Act, not any generic conspiracy princi-
ples, led the Court to exclude a woman who “merely acqui-
esces” to being transported.
In addition to the Mann Act, the Court argues that its
interpretation is correct because Mejia and Moreno can be
held liable for conspiring to commit extortion even though
they were incapable of committing the substantive crime
themselves. (Because they are not public officials, Mejia
and Moreno cannot obtain property “under color of official
Cite as: 578 U. S. ____ (2016) 9
SOTOMAYOR, J., dissenting
right.” Ante, at 5–7.) True enough. But this principle
does not lead to the conclusion that “from another” takes
the perspective of Ocasio as its reference point, as opposed
to the conspiratorial group.
For example, suppose a politician and a lobbyist con-
spire to have the lobbyist tell his clients to pay the politi-
cian bribes in exchange for official acts. The lobbyist
cannot obtain those bribes under color of official right and
so could not be charged with a substantive Hobbs Act
extortion violation. But the conspiracy would still violate
the Hobbs Act, see Evans, 504 U.S., at 268, because the
conspiratorial group obtained property “from another,” i.e.,
from the clients who are outside the conspiracy that exists
between the lobbyist and the politician. Now suppose the
lobbyist instead agrees to pay the bribe himself. We would
be back to the question at the heart of this case.
The Court’s incapable-of-committing-the-substantive-
offense principle therefore cannot do the work the Court
thinks it does. It is entirely consistent to say obtaining
property “from another” in violation of the Hobbs Act
requires the conspirators to agree to obtain property from
someone outside the conspiracy, and to say that every
conspirator who enters into that agreement need not be
capable of committing the substantive offense himself.
Finally, the Court raises policy concerns: It mentions
that it would be odd to immunize the ostensible victims of
a conspiracy to commit extortion—here, Mejia and More-
no—if they play just as active a role in the conspiracy as
other members. Ante, at 18.
While perhaps odd, that concern does not warrant the
Court’s contortion of conspiracy law where there are other
criminal statutes—like federal antibribery laws and state
laws—that reach similar conduct. See, e.g., 18 U.S. C.
§666 (criminalizing bribery of state, local, or tribal officials
in specified circumstances); Md. Crim. Law Code Ann. §9–
10 OCASIO v. UNITED STATES
SOTOMAYOR, J., dissenting
201 (2012) (criminalizing bribery of public employee).3 Of
course, the Government could have attempted to convict
Ocasio for conspiracy on these facts without relying on the
Court’s odd theory—for example, by proving that Ocasio
conspired with other Baltimore police officers to extort
property from the brothers.
And, in its effort to make sure Ocasio, Moreno, and
Mejia get their just deserts, the Court’s atextual interpre-
tation of the Hobbs Act exposes innocent victims of extor-
tion to charges that they “conspired” with their extorter
whenever they agree to pay a bribe. The Court says not to
worry, it will limit the scope of a conspiracy to exclude
potential defendants whose participation in the extortion
amounts to no more than “mere acquiescence,” analogizing
to Gebardi. Ante, at 15–16.
But Gebardi grounded its “mere acquiescence” standard
in the text of the Mann Act. See supra, at 8–9. Here,
without any textual hook in the Hobbs Act, the Court rests
on no more than intuitions drawn from basic examples. If
a restaurant owner threatened with closure by a health
official reluctantly pays a bribe, the Court says that the
owner is not guilty of conspiracy. Ante, at 16. According
to the Court, he “consented” to extortion, but his mere
acquiescence to an “official demand” did not create a con-
spiratorial agreement. Ibid. By contrast, the Court says,
if a nightclub owner pursues a liquor license by asking his
manager to bribe a public official, he is clearly guilty of
conspiracy. Ante, at 18. He agreed with the public official
that the official would obtain property “from another,” i.e.,
from him, in exchange for a license. Ibid.
These examples raise more questions than answers.
——————
3 Moreover, any oddity in the Hobbs Act’s failure to punish the bribe
payors for conspiring with the bribe takers may be partly explained by
this Court’s decision to hold that extortion under the Hobbs Act reaches
a public official who accepts a bribe in the first place. See ante, at 1–2
(THOMAS, J., dissenting).
Cite as: 578 U. S. ____ (2016) 11
SOTOMAYOR, J., dissenting
When does mere “consent” tip over into conspiracy? Does
it depend on whose idea it was? Whether the bribe was
floated as an “official demand” or a suggestion? How
happy the citizen is to pay off the public official? How
much money is involved? Whether the citizen gained a
benefit (a liquor license) or avoided a loss (closing the
restaurant)? How many times the citizen paid the bribes?
Whether he ever resisted paying or called the police? The
Court does not say. It leaves it for federal prosecutors to
answer those questions in the first instance, raising the
specter of potentially charging everybody with conspiracy
and seeing what sticks and who flips.
* * *
When three people agree to obtain property “from
another,” the everyday understanding of their agreement
is that they intend to obtain property from someone outside
of their conspiracy. The Court reaches the opposite con-
clusion, based entirely on an assumption that the Hobbs
Act’s use of “from another” takes as its reference point the
vantage of Ocasio alone, rather than the group endeavor
that constitutes conspiracy. The Court offers no explana-
tion—grounded in either the text of the statute or so-
called “age-old principles of conspiracy law”—for why that
assumption is correct.
Conspiracy has long been criticized as vague and elastic,
fitting whatever a prosecutor needs in a given case. See,
e.g., Krulewitch v. United States, 336 U.S. 440, 445–457
(1949) (Jackson, J., concurring). This Court has warned
that “we will view with disfavor attempts to broaden the
already pervasive and wide-sweeping nets of conspiracy
prosecutions.” Grunewald v. United States, 353 U.S. 391,
404 (1957). Today, in reaching an unnatural outcome
predicated on an unsupported assumption, the Court says
never mind.
I respectfully dissent.