Sheldon Silver Case Highlights Renewed Questions About the Hobbs Act (Bloomberg Law)

Over the last decade, the U.S. Supreme Court has repeatedly reined in federal prosecutors' aggressive use of federal criminal laws to pursue alleged corruption by state and local officials. Skilling, McDonnell, and Kelly all overturned convictions of officials, rejecting expansive interpretations of criminal statutes that had become common in public corruption cases.

A recent dissent from the denial of certiorari in the case of Sheldon Silver, the former speaker of the New York State Assembly, highlights another aspect of anti-corruption law that is ripe for correction: the use of the Hobbs Act's prohibition of extortion to prosecute cases of alleged bribery.

The Hobbs Act criminalizes extortion, which is the "obtaining of property from another, with his consent, …under color of official right." On its face, the act has nothing to do with bribery—in ordinary English, extortion is coercion, and an individual who pays a bribe to obtain some benefit has not been coerced.

Nevertheless, nearly three decades ago, in Evans v. United States, the Supreme Court held that Hobbs Act extortion included simple bribery. Prosecutors have taken that reading and run with it, tacking on Hobbs Act extortion charges—carrying up to 20 years' imprisonment—any time they allege official bribery.

High Court Justices Question Whether Evans Should Stand

Evans is a relic of a bygone era. Not only has the Supreme Court progressively limited the reach of anti-corruption law, but the court has increasingly insisted on adherence to statutory text. As Justice Elena Kagan has quipped, "We're all textualists now." And multiple justices have openly questioned whether Evans should stand.

In 2016, Justices Clarence Thomas and Stephen Breyer both suggested that Evans was wrongly decided, and two others on the court—Chief Justice John Roberts and Justice Sonia Sotomayor—conspicuously declined to address whether Evans should be overruled on the sole ground that "[n]o party [has] ask[ed] us" to overrule it. In contrast, no current member of the court has defended Evans.

Just weeks ago, Justice Neil Gorsuch added his voice to that chorus in Silver's case, saying the court should reconsider Evans in light of the "thoughtful criticisms" leveled against it. Again, no justice wrote to defend Evans, and it is reasonable to assume that the court denied Silver's petition for one of the several non-Evans reasons advanced by the government.

Evans Should Be Overruled

In light of these developments, officials charged under the Hobbs Act should be certain to argue that Evans must be overruled. And criminal appellate attorneys should be alert for opportunities to invite the court to reconsider Evans. They will likely find a receptive audience.

Evans' holding that the Hobbs Act covers "taking a bribe" cannot be squared with the text for a host of reasons:

• First, Evans misread "under color of official right." The established meaning of that phrase, at common law, meant the officer obtained the property under the pretense that the officer was entitled to the property by virtue of his office. An official who takes a bribe does not act under color of official right. The bribe payor knows the official is not entitled to the bribe—that's the whole point of a bribe.
• Second, Evans ignored the plain meaning of "extortion," and that Congress consistently distinguishes between "bribery" and "extortion." As Justice Antonin Scalia explained in McCormick, "where the United States Code explicitly criminalizes conduct" that is bribery, "it calls the crime bribery, not extortion." For example, 18 U.S.C. § 201 criminalizes "[b]ribery of public officials and witnesses," whereas 18 U.S.C. § 872 criminalizes "[e]xtortion by officers or employees of the United States." Congress did not include "bribery" in the Hobbs Act, and there is no reason to read it in.
• Third, even if the Hobbs Act were ambiguous, two principles of statutory construction resolve the ambiguity: the rule of lenity and the plain statement rule. Lenity requires a court to resolve any ambiguity in favor of the criminal defendant. In addition, courts give a narrow construction to federal legislation that threatens to disturb the balance between the national government and state governments unless Congress has made its contrary intent plain. Both rules apply here, and both require rejecting the atextual inclusion of bribery in the Hobbs Act.

There are thus strong textual arguments that Evans was wrong—arguments that will appeal to the current court. In most cases, seeking the overruling of precedent amounts to tilting at windmills. But Evans conflicts with two strong tendencies in the court's current jurisprudential approach: its adherence to the text of statutes and its commitment to policing the boundaries of federal public-corruption prosecutions.

Given an appropriate case, the court appears poised to return the Hobbs Act to its proper, more limited, scope.

Jones Day represented Silver on appeal and at resentencing, as well as Gov. Bob McDonnell (McDonnell v. United States), and Bridget Anne Kelly (Kelly v. United States).

Reproduced with permission. Published March 1, 2021. Copyright 2021 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com