Wednesday, November 2nd, 2005

Extortion Conviction Vacated Because Property Was Not Taken from Victim with His “Consent”

United States v. Xiao Qin Zhou, Docket No. 03-1575(L) (2d Cir. Nov. 1, 2005) (Miner, Calabresi, Amon (by designation)): This is an interesting opinion that discusses a critical difference between the crime of robbery and the crime of extortion under the Hobbs Act, 18 U.S.C. § 1951. While the defendants took property from the victim by force (indeed, at gunpoint), they were not guilty of extortion (the sole offense with which they were charged in connection with this particular victim) because they did not give the victim the choice of refusing to turn over the property. The “element of consent” by the victim in turning over money or property, the Court explains, “is the razor’s edge that distinguishes extortion from robbery,” which involves taking money or property from a person “against his will.” Op. 15. And because the evidence was insufficient to show that the victim was given the Hobson’s choice of either turning over his property or be shot, the Court vacated the defendants’ extortion convictions.

Defendants were charged with committing numerous acts of armed robbery in NYC’s Chinatown during a six-month spree. Regarding one particular incident, however, the Government charged them with extorting (and conspiring to extort) money and property under the Hobbs Act, rather than robbery. Several Section 924(c) counts were also included in the indictment, one corresponding to each count of robbery or extortion. Defendants were convicted on all counts and they appealed.

The Circuit affirms their conviction on all counts except the extortion count, the related conspiracy count, and the corresponding § 924(c) count. Regarding the alleged extortion incident, the evidence showed that one of the conspirators called the victim on the phone, identified himself as being associated with “Vietnamese Boy” (VB), and said that VB would come by later that day to pick up $10,000, which the victim should place in a red envelope. The victim responded that he had no money and hung up. And while the victim testified that he vaguely knew who VB was, no evidence showed that VB had a reputation for violence or that the victim feared VB in any way.

Later the same day, four of the conspirators, including the two appellants, showed up at the victim’s (illegal) gambling parlor and tried to get inside. When they couldn’t, they asked to see the victim (one of the parlor’s managers) outside. And when the victim came outside, the four conspirators pointed their guns at him and demanded $10,000. When the victim again said he had no money, the conspirators hit him on the head and in his stomach area with their guns. They then took a necklace worn by the victim and fled from the scene.

The Court held that these facts failed to prove the crime of extortion, which “means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear.” 18 U.S.C. § 1951(b)(2) (emphasis added). Based on this language, and noting that “[c]hoice on the part of the victim is a common theme in all extortion cases,” the Court ruled that an essential element of the crime of extortion is that the defendant gives the victim the option of either turning over his property, or not turning over the propety and face dire consequences. The Court explains:

“‘[T]he legislative history of the [Hobbs] Act makes clear that its proponents understood extortion to encompass situations in which a victim is given the option of relinquishing some property immediately or risking unlawful violence resulting in other losses, and he simply chooses what he perceives to be the lesser harm. . . . In order to foreclose any argument by an extortionist that the relinquishment of property in such circumstances was [truly] voluntary, [however,] the Hobbs Act definition of extortion simply prohibits the extortionist from forcing the victim to make such a choice.'”

Op. 15 (emphasis in original) (quoting United States v. Arena, 180 F.3d 380, 394 (2d Cir. 1999)). Regardless of “however much of a Hobson’s choice that may be,” the true extortion victim “always retains some degree of choice in whether to comply with the extortionate threat.” Op. 15. The “victim’s consent — however forced — to the transfer of the property” is an essential element of the crime of extortion. Op. 16.

Where such choice on the part of the victim is absent, the defendant is guilty not of extortion, but of robbery. As the Court puts it, “this element of consent is the razor’s edge that distinguishes extortion from robbery.” Op. 15; see id. 27 (“[I]t is this notion that the victim of extortion consents to the taking — albeit through threat or force — that separates extortion from robbery.”).

In this case, there was no indication in the record that appellants “thought, or sought, to obtain property from [the victim] . . . by means of a forced consent.” Op. 24. Rather, the evidence showed only that appellants and their co-conspirators tried to rob the victim. See id. (“It seems inescapable that this incident was nothing more nor less than a classic robbery.”). The Court thus vacated their extortion convictions.

Query: Does this case mean that a defendant who takes money from someone at gunpoint while saying “your money or your life” is guilty not of robbery but of extortion? It would seem so, since the victim is given a choice — “albeit through threat or force” — of either turning over his money or not turning over his money (with resulting dire consequences). Even such Hobson’s choices count under the extortion statute, however, as this case explicitly holds. See Op. 15. But can this be right?

Posted by
Categories: Uncategorized
Comments are closed.