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May 2, 2016

At SCOTUS, "age-old principes of conspiracy law" produces brand new division of Justices

More than six months after oral argument, the Supreme Court this morning finally released its opinion in Ocasio v. United States, No. 14-361 (S. Ct. May 2, 2016) (available here), which concerns the application of a federal conspiracy law surrounding extortion. Justice Alito wrote the opinion for the Court, and here is how it gets started:

Petitioner Samuel Ocasio, a former officer in the Baltimore 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 violation 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.

Few should be surprised that Justice Alito in Ocasio was not moved by a criminal defendant's effort to make more challenging pursuit of a conspiracy charge (a type of crime Judge Learned Hand famously describes as the "darling of the modern prosecutor's nursery").  But I was certainly surprised with how the votes of the other seven Justices broke down:

ALITO, J., delivered the opinion of the Court, in which KENNEDY, GINSBURG, BREYER, and KAGAN, JJ., joined. BREYER, J., filed a concurring opinion. THOMAS, J., filed a dissenting opinion. SOTOMAYOR, J., filed a dissenting opinion, in which ROBERTS, C. J., joined.

Because I do not spend all that much time thinking about either extortion or conspiracy, I doubt I will have much more to say about Ocasio. But I would be grateful to hear from readers in the comments as to whether they think this opinion was worth the wait and/or whether the unusual divides of the Justices has a possible significance beyond this one case.

May 2, 2016 at 10:43 AM | Permalink


I love this case because it is a great example of judicial framing. I glanced through all the opinions and agreed with all of them. FWIW, I would probably have voted with the majority. Can a person extort another person in a conspiracy of extortion? Why not? It's not a logically impossible claim. Is it what Congress was thinking about when it wrote the Hobbs act? Probably not, the dissent is correct on that score. And Thomas is correct about the lack of clarity in the court's prior opinions.

Where you stand all depends on where you sit.

Posted by: Daniel | May 2, 2016 10:55:55 AM

Breyer wrote an opinion sympathetic with Thomas, but relied more on stare decisis; this is something fairly familiar -- Breyer accepts precedents he might not like while Thomas will overturn something decided in 1798 if he thinks it is reasoned badly.

Sotomayor/Roberts, as I recall, was never in dissent together until a recent case. Now, they have been in dissent twice -- each writing one dissent each. I don't know the particulars of the case but can understand how a person can be guilty of extortion even if the target themselves is somehow guilty. So, it relies on statutory interpretation and applying past cases. Sounds like great law exam fodder.

Maybe, Scalia's death had something to do with the delay.

Posted by: Joe | May 2, 2016 11:44:06 AM

I like that this was an old school Extortion case (claim of official right) rather than the modern use of the term. Given my understanding of the term when I've had to look into this previously, I think Justice Thomas is correct. That being said, given that nobody challenged Evans, I don't think his position is particularly relevant.

Given Evans making this more a bribery statute than a Common Law Extortion statute, the majority is probably correct - although I'm very sympathetic to the defense.

Posted by: Erik M | May 2, 2016 2:11:13 PM

I see by closer reading that Breyer very well might overrule if given the chance but felt the matter was conceded here.

Posted by: Joe | May 2, 2016 6:12:17 PM

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