Details: Sekhar v. United States

In 1946, Congress enacted the Hobbs Act, which punishes extortion, “one of the oldest crimes in our legal tradition.”  Extortion is the act of using a threat of force or violence to take someone else’s property.  In Sekhar v. United States, the Court considered the definition of  “property” under the Hobbs Act.  Specifically, the Court considered the question whether a recommendation to invest in a fund can be considered property.

Sekhar involved an attempt to compel a New York State lawyer to recommend that his employer approve an investment for the New York Common Retirement Fund (NYCRF) (an employee pension fund).  Sekhar was the managing partner of a technology firm that was seeking investment commitments, including from the NYCRF.  The general counsel of the NY Comptroller’s office recommended against investing in the fund, and the Comptroller notified the fund of its decision.  The partner of the technology firm, however, had learned that the general counsel was having an extramarital affair, and allegedly sent threatening emails to the general counsel demanding that he change his recommendation or else information about the affair would be released to the media.  After those emails were traced back to the technology firm, Sekhar was indicted for attempted extortion in violation of the Hobbs Act.

Sekhar was convicted.  The Second Circuit affirmed Sekhar’s conviction, holding that the general counsel had a property right in “rendering sound legal advice to the Comptroller,” and that Sekhar had attempted to deprive the general counsel of that property right.  The Court granted certiorari, and today unanimously voted to reverse the Second Circuit.

Writing for the Court, Justice Scalia (joined by the Chief Justice and Justices Thomas, Ginsburg, Breyer, and Kagan), held that “what was charged in this case was not extortion.”  The Court explained that the common law tradition of extortion, as well as the “genesis of the Hobbs Act,” requires that the property alleged to have been extorted must “be transferable” — that is, capable of passing from one person to another.  That is because the text of the Act defines extortion as “the obtaining of property from another.”  And, whatever might be said about the advice that the general counsel rendered, it cannot be considered “obtainable property” under the Hobbs Act. An employee’s “yet-to-be-issued recommendation [cannot] be called obtainable property, and less so still a yet-to-be-issued recommendation that would merely approve (but not effect) a particular investment.”

Justice Alito (joined by Justices Kennedy and Sotomayor) concurred in the judgment.  Justice Alito would have held that “internal recommendations regarding government decisions are not property.”  And if that is so, then “surely a government employee’s right to make such a recommendation is not property either (nor could it be deemed a property right).”  The majority differed from that approach, reserving judgment on the question whether some kinds of recommendations might be considered property (such as, for example, the right to make a recommendation as to who should receive a Pulitzer Prize).  Instead, the Court (in footnote 5) explained the key to its holding as the inability to transfer or obtain the right to issue the recommendation.