Hobbs ActExtortion By Force, Violence, or Fear
In order to prove a violation of Hobbs Act extortion by the wrongful
of actual or threatened force, violence, or fear, the following questions
be answered affirmatively:|
- Did the defendant induce or attempt to induce the victim to give up
property or property rights?
- "Property" has been held to be "any valuable right considered as a
of wealth." United States v. Tropiano, 418 F.2d 1069, 1075 (2d Cir.
(the right to solicit garbage collection customers). "Property" includes
right of commercial victims to conduct their businesses. See
States v. Zemek, 634 F.3d 1159, 1174 (9th Cir. 1980) (the right to make
business decisions and to solicit business free from wrongful coercion) and
cases). It also includes the statutory right of union members to
participate in union affairs. See United States v. Debs, 949
199, 201 (6th Cir. 1991) (the right to support candidates for union office);
United States v. Teamsters Local 560, 550 F. Supp. 511, 513-14
1982), aff'd, 780 F.2d 267 (3rd Cir. 1985) (rights guaranteed union
members by the Labor-Management Reporting and Disclosure Act, 29 U.S.C.
- Did the defendant use or attempt to use the victim's reasonable fear of
physical injury or economic harm in order to induce the victim's consent to
- A defendant need not create the fear of injury or harm which he
to induce the victim to give up property. See United States v.
Duhon, 565 F.2d 345, 349 and 351 (5th Cir. 1978) (offer by employer to
union official for labor peace held to be "simply planning for inevitable
for money" by the union official under the circumstances); United States
Gigante, 39 F.3d 42, 49 (2d Cir. 1994), vacated on other grounds and
superseded in part on denial of reh'g, 94 F.3d 53 (2d Cir. 1996)
some businesses to refuse operations with the victim sufficiently induced
victim's consent to give up property, consisting of a right to contract
with other businesses, as long as there were other businesses beyond
control with whom the victim could do business).
- Moreover, attempted extortion may include an attempt to instill
in a federal agent conducting a covert investigation or a defendant "made of
unusually stern stuff." See United States v. Gambino, 566
414, 419 (2d Cir. 1977) (argument that FBI agent pretending to be extortion
victim could not be placed in fear is not a defense to attempted extortion
agent); see also United States v. Ward, 914 F.2d 1340, 1347
Cir. 1990) (an attempt to instill fear included a demand for money from a
who knew that the defendant was only pretending to be a federal undercover
when he threatened the victim with prosecution unless money was paid).
- However, the payment of money in response to a commercial bribe
solicitation, that is, under circumstances where the defendant does not
the victim with economic harm, but only offers economic assistance in return
payment to which the defendant is not entitled, is not sufficient to prove
extortion by fear of economic loss. United States v. Capo, 817 F.2d
951-52 (2d Cir. 1987) (solicitation of money from job applicants by persons
having no decisionmaking authority in return for favorable influence with
employment counselors was insufficient evidence of inducement by fear);
see United States v. Blanton, 793 F.2d 1553, 1558 (11th Cir.
(inducement by fear was proven by the defendant's solicitation of a labor
consulting contract, to help employer stop outside union organizing, when
solicitation was accompanied by defendant's threat to form another union and
begin organizing employees if the consulting contract was not accepted).
- Did the defendant's conduct actually or potentially obstruct, delay, or
affect interstate or foreign commerce in any (realistic) way or degree?
- The Hobbs Act regulates extortion and robbery, which Congress has
determined have a substantial effect on interstate and foreign commerce by
of their repetition and aggregate effect on the economy. Therefore, the
proscribed offenses fall within the category of crimes based on the Commerce
Clause whose "de minimis character of individual instances arising under
statute is of no consequence." United States v. Bolton, 68 F.3d 396,
(10th Cir. 1995) (upholding Hobbs Act convictions for robberies whose
the defendant would have used to purchase products in interstate commerce),
quoting, United States v. Lopez, --- U.S. ---, 115 S.Ct. 1624,
(1995); material in brackets added; see also United States v.
Atcheson, 94 F.3d 1237, 1243 (9th Cir. 1996) (robbery of out-of-state
and ATM cards); United States v. Farmer, 73 F.3d 836, 843 (8th Cir.
(robbery of commercial business); United States v. Stillo, 57 F.3d
558 n.2 (7th Cir. 1995).
- Hobbs Act violations may be supported by proof of a direct effect on
channels or instrumentalities of interstate or foreign commerce, as for
where the threatened conduct would result in the interruption of the
movement of goods or labor. See United States v. Taylor, 92
1313, 1333 (2d Cir. 1996) (extortion of money, unwanted labor, and
on construction projects by threatened shutdowns and labor unrest);
States v. Hanigan, 681 F.2d 1127, 1130-31 (9th Cir. 1982) (robbery of
undocumented alien farm workers while they were traveling from Mexico to the
United States in search of work); United States v. Capo, 791 F.2d
1067-68 (2d Cir. 1986), vacated on other grounds, 817 F.2d 947 (2d
1987) (scheme to extort local job applicants had a potential effect on
applicants who might otherwise be hired).
- Indirect effects on such commerce are also sufficient, as for
example, where the obtaining of property and resulting depletion of the
assets decreases the victim's ability to make future expenditures for items
Taylor, supra (depletion of contractors' assets). However,
Seventh Circuit has distinguished Hobbs Act cases involving depletion of a
business' assets from those involving the depletion of an individual
assets which, the court has ruled, are not as likely to satisfy the
jurisdictional requirement of the Hobbs Act. United States v.
671 F.2d 1020 (7th Cir. 1982); United States v. Boulahanis, 677 F.2d
590 (7th Cir. 1982). Other circuits have agreed where the extortion or
of an individual has only an "attenuated" or "speculative" effect on some
or group of individuals engaged in interstate commerce thereby diminishing
"realistic probability" that such commerce will be affected. See
United States v. Collins, 40 F.3d 95, 100 (5th Cir. 1994) (conviction
robbery of a computer company employee reversed on grounds that theft of
automobile with cellular phone had an insufficient effect on his employer's
business); United States v. Quigley, 53 F.3d 909 (8th Cir. 1995)
(upholding the acquittal, following guilty verdict, of defendants who beat
robbed two individuals in route to buy beer at a liquor store).
- Was the defendant's actual or threatened use of force, violence or fear
- Generally, the extortionate obtaining of property by the wrongful use
actual or threatened force or violence in a commercial dispute requires
a defendant's intent to induce the victim to give up property. No additional
proof is required that the defendant was not entitled to such property or
he knew he had no claim to the property which he sought to obtain.
United States v. Agnes, 581 F.Supp. 462 (E.D. Pa. 1984),
F.2d 293, 297-300 (3d Cir. 1985) (rejecting claim of right defense to
use of violence to withdraw property from a business partnership).
- However, the Supreme Court has recognized a claim-of-right defense to
Act extortion in labor-management disputes.
In a 1973 decision, the Court reversed the conviction of union-member
who had used violence against an employer's property, during an otherwise
legitimate economic labor strike, in order "to achieve legitimate union
objectives, such as higher wages in return for genuine services which the
employer seeks." United States v. Enmons, 410 U.S. 396, 400 (1973).
Court reasoned that the legislative history of the Hobbs Act disclosed that
Congress had been concerned with attempts by union officials to extort wages
unwanted and fictitious labor, to which employees were not entitled, as
contrasted with the policing of legitimate labor strikes in general.
the Court concluded that the union members' use of violence during the
not "wrongful" for purposes of Hobbs Act extortion. The Supreme Court also
a broadly worded statement that
"wrongful" has meaning in the Act only if it limits the
coverage to those instances where the obtaining of the property would itself
"wrongful" because the alleged extortionist has no lawful claim to that
In its labor-management context, the claim-of-right defense is not
applicable where defendants do not have legitimate labor objectives. The
claim-of-right defense has been held not to excuse the following kinds of
- payoffs to union officials and employee representatives in violation
the federal labor laws (29 U.S.C. § 186); United States v.
F.2d 1250, 1259 (5th Cir. 1975) (solicitation of church donation in return
removal of labor pickets); United States v. Gibson, 726 F.2d 869 (1st
1984) (request for payoff to remove pickets);
- sham fees which labor unions are not entitled to collect under the labor
laws; United States v. Wilford, 710 F.2d 439, 444 (8th Cir. 1983)
(economic coercion of dues and initiation fees from truck drivers who were
self-employed or who were told they would receive no member benefits);
- employee payments which violate existing labor contracts; United
v. Russo, 708 F.2d 209, 215 (6th Cir. 1983) (under threat of job loss,
employees' payment of health and pension contributions which labor contract
required employer to pay);
- employer payments to labor unions which are not included in existing
contracts; United States v. Traitz, 871 F.2d 368, 381-82 (3d Cir.
(violence used to collect fines on employers for non-compliance with union
which were not made part of the labor contract);
- demands that a non-union employer cease business operations during a
union organizing campaign; United States v. Edgar Jones, 766
994, 1002-03 (6th Cir. 1985) (violent campaign by union officials and
union-represented competitor to drive the non-union employer out of business
under the pretext of persuading employees to join the union and enforce area
- employer payments for labor consulting to establish a bogus "sweetheart
union" and thereby discourage legitimate organizing by other unions;
States v. Blanton, 793 F.2d 1553 (11th Cir. 1986).
- construction contractors' payments of money, wages for unwanted and
superfluous employees, and subcontracts with employee representatives which
unrelated to the hiring of employees. United States v. Taylor, 92
1313, 1319 and 1333 (2d Cir. 1996) (extortion of contractors by leaders of
minority labor coalitions).
Several courts of appeals have limited the claim-of-right defense to
context of labor-management disputes by refusing to extend the defense to
extortionate violence and economic fear in commercial disputes and public
corruption cases. United States v. Debs, 949 F.2d 199, 201 (6th Cir.
1991) (violence against union members in retaliation for support of
candidate for union office); United States v. Castor, 937 F.2d 293,
(7th Cir. 1991) (violent threats to obtain consent to enter into business
arrangement); United States v. Zappola, 677 F.2d 264, 269 (2d Cir.
(beating of debtor to coerce repayment of purported debt); United States
Porcaro, 648 F.2d 753, 760 (1st Cir. 1981) (franchisor's violence to
franchisee to vacate premises); United States v. French, 628 F.2d
1075 (8th Cir.1980) (public official's kickbacks on bail bond settlements);
United States v. Cerilli, 603 F.2d 415, 419 (3d Cir. 1979)
of political contributions); United States v. Warledo, 557 F.2d 721,
729-730 (10th Cir. 1977) (violence by Native Americans to compel railroad to
reparations for tribal lands).
However, other courts have held that the extortionate use of fear of
economic harm in commercial disputes is subject to a claim-of-right defense
the grounds that, unlike violence, the use of economic fear is not
"wrongful." See United States v. Kattar, 840 F.2d 118, 123-24
Cir. 1988) (threat to expose church to litigation unless purported "award"
information was paid to defendant was not a legitimate use of economic fear
the information was false and defamatory); United States v. Clemente,
F.2d 1069, 1077-78 (2d Cir. 1981) (extortion of bogus consulting payments
subcontractor coerced by the threat of labor unrest against the
Where the claim-of-right defense applies, courts have generally held
the Government must prove that the defendant knew that he was not entitled
receive the property which he sought to obtain. United States v.
Arambasich, 597 F.2d 609, 611 (7th Cir. 1979) (demand by labor union
on employer that the official and others be hired for no-show employment
threat of labor unrest); United States v. Sturm, 870 F.2d 769, 774
Cir. 1989) (in prosecution involving debtor's withholding of property from a
creditor-bank, "the term 'wrongful' requires the government to prove, in
involving extortion based on economic fear, that the defendant knew
he was not legally entitled to the property that he received."); United
v. Dischner, 974 F.2d 1502, 1515 (9th Cir. 1992) (failure to instruct
defendant must know he had no entitlement to property he sought by use of
economic fear did not rise to the level of plain error; but "knowledge of
extortion encompasses knowledge of the lack of lawful claim to the
[cited in USAM 9-131.010]