Supreme Court Decides Sekhar v. United States
On June 26, 2013, the U.S. Supreme Court decided Sekhar v. United States, holding that attempting to compel a person to recommend that his employer approve an investment does not constitute "the obtaining of property from another" under the Hobbs Act.
In 2009, the New York state employee pension fund was considering investing in a fund managed by the petitioner's employer. The state comptroller chooses the fund's investments in a "Commitment," and the general counsel for the comptroller's office makes written recommendations regarding the funds being considered for a Commitment. After the general counsel made a recommendation not to invest in the petitioner's employer's fund, the general counsel received anonymous email messages (later traced to the petitioner) threatening to reveal that the general counsel had been having an extra-marital affair if he did not recommend that the comptroller invest in the fund.
The United States charged the petitioner with attempted extortion in violation of the Hobbs Act, which 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." The jury convicted petitioner and specified the "property" he attempted to extort as "the General Counsel's recommendation to approve the Commitment." The Court of Appeals for the Second Circuit affirmed, holding that the general counsel "had a property right in rendering sound legal advice to the Comptroller" and to recommend a Commitment free from threats.
The Supreme Court reversed the Second Circuit. The Court looked to the common law, the text and genesis of the statute, and the Court's prior jurisprudence and concluded that the petitioner's acts did not constitute extortion under the Hobbs Act. Historically, extortion always required the obtaining of some item of value and did not cover "mere coercion to act, or to refrain from acting." The text of the statute also defines extortion as "the obtaining of property from another," which requires the property to be "transferable—that is, capable of passing from one person to another." The property at issue here, described by the government as an intangible property right in giving a disinterested legal opinion free from improper outside influence, was not transferable and amounted to coercion but not extortion.
Justice Scalia delivered the opinion of the Court, in which Chief Justice Roberts and Justices Thomas, Ginsburg, Breyer, and Kagan joined. Justice Alito filed an opinion concurring in the judgment, in which Justices Kennedy and Sotomayor joined.
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