CRIMINAL LAW--EXTORTION OR PUBLIC POLICY, WHERE DO WE DRAW THE LINE?: FIRST CIRCUIT FINDS HOBBS ACT EXTORTION MAY APPLY TO THE ACTIONS OF TWO BOSTON CITY HALL OFFICIALS--UNITED STATES V. BRISSETTE, 919 F.3D 670 (1ST CIR. 2019).

• Author: Soares, Alexis

The federal crime of extortion can have a substantial negative effect on interstate and foreign commerce due to its aggregate impact on the economy. (1) The Hobbs Act, enacted to regulate extortion and robbery, defines extortion as "the obtaining of property from another, with ... consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." (2) In United States v. Brissette, (3) the First Circuit Court of Appeals grappled with defining and applying the elements of extortion under the Hobbs Act. (4) The First Circuit ultimately determined that the "obtaining of property" element of the extortion provision may be satisfied even when no personal benefit is incurred. (5)

In 2016, two City of Boston ("the City") public officials, Kenneth Brissette ("Brissette") and Timothy Sullivan ("Sullivan"), were indicted for extortion and conspiracy to commit extortion in violation of the Hobbs Act. (6) Brissette served as the Director of the Office of Tourism, Sports and Entertainment for the City and Sullivan served as the Mayor's Chief of Staff for Intergovernmental Relations and the Senior Advisor for External Relations. (7) In their respective roles, Brissette and Sullivan worked closely with Crash Line Productions ("Crash Line"), a live music production company that had a licensing agreement with the City to host "Boston Calling," a biannual music festival hosted on City Hall Plaza. (8)

In July 2014, Crash Line requested a permit to host the September "Boston Calling" festival.* 9 Over the next two months, Brissette and Sullivan repeatedly told the company that it needed to hire local union workers to staff the music festival in order to receive a permit. (10) Crash Line explained that it had already secured labor for the festival through preexisting contracts with a non-union company. (11) On September 2, 2014, Crash Line, still without a permit and with only three days before the festival was scheduled to begin, met with Brissette and Sullivan who, once again, insisted the company hire union workers to staff the festival. (12) Due to persistent demands from the City and the fast approaching event date, Crash Line entered into a contract to hire nine union workers; shortly after, the City issued the necessary permit to host the festival. (13)

In April of 2016, the Boston Globe reported that the Federal Bureau of Investigation was investigating whether members of Mayor Martin J. Walsh's administration merely advised Crash Line of the potential problem that may arise if they did not staff local union workers, or whether the City pressured Crash Line to hire local union stagehands. (14) The following month, Brissette was arrested in response to an eight-page indictment. (15) The initial indictment, handed up by a grand jury, charged only Brissette with Hobbs Act extortion; however, a month later, a superseding indictment added a Hobbs Act extortion charge against Sullivan and charged both men with conspiracy to commit Hobbs Act extortion. (16)

On March 22, 2018, the district court dismissed the indictment based on its interpretation of the phrase "obtaining of property" in the Hobbs Act extortion provision. (17) District court Judge Leo Sorokin explained that the government failed to prove that Brissette and Sullivan physically obtained property and that the men gained a personal benefit from their actions, noting both elements are necessary under the extortion provision. (18) The government appealed, and the First Circuit Court of Appeals was tasked with deciding whether, under the Hobbs Act, "merely directing property to a third party" constitutes "obtaining of [that] property," or whether one must also "enjoy[] a personal benefit from" that directed transfer. (19) Aligning itself with other circuits that have resolved the same question, the First Circuit Court of Appeals held that conferring a personal benefit is not necessary to prove Hobbs Act extortion. (20) Therefore, the district court's order of dismissal was vacated and the case was remanded for further proceedings. (21)

In 1946, Congress passed the Hobbs Act to prohibit actual or attempted robbery or extortion that would negatively affect interstate or foreign commerce. (22) Since its adoption, the Hobbs Act has expanded federal criminal jurisdiction and is frequently used in cases involving public corruption, commercial disputes, violent crimes, and corruption directed at labor unions. (23) By definition, the elements of extortion are: (1) interference with interstate commerce; (2) obtaining, attempting to obtain or conspiring to obtain property from another; (3) with consent; and (4) "inducement] by wrongful use of actual or threatened force, violence, or fear or under color of official right." (24) The use of force, violence, or fear to obtain property must be "wrongful" in order for the action to fall within the Hobbs Act and violate criminal law. (25) Courts have grappled with defining two elements of the Hobbs Act in particular: the phrase "obtaining of property," and "wrongful" conduct. 26

The Hobbs Act does not define the word "obtaining," nor the phrase "obtaining of property." (27) When the terms of a statute are ambiguous, courts will interpret them within the context of their statutory scheme, or, alternatively, presume that the statutory terms hold their common-law meaning. (28) The Model Penal Code's ("MPC") definition of "extortion," which is rooted in common-law, defines the term "obtaining" as "bringing about a transfer or purported transfer of a legal interest in the property, whether to the obtainer or another." (29) Relying on the MPC definition, the Supreme Court has held that the term "obtaining," as used under the Hobbs Act extortion provision, does not impliedly require that a personal benefit be conferred. (30) On the contrary, the Supreme Court has consistently found that the phrase "obtaining property" is not exclusive to the extortioner, but includes situations where the defendant directs a transfer from the victim to a third party. (31) The Supreme Court has also established that Congress intended for the "obtaining of property" element to be satisfied through "extortion under the guise of obtaining wages ..." regardless of whether it was for actual or fictitious labor. (32)

When determining whether the means used to obtain property is "wrongful," courts have ruled that the use of actual or threatened violence or fear, as well as fear of physical harm, is inherently wrongful under the statute. (33) The Supreme Court has held that the obtaining of property itself is "wrongful" when the extortioner uses wrongful means to accomplish a wrongful end. (34) The term "wrongful," qualifies each of the enumerated means of obtaining property found in the Hobbs Act: "actual or threatened force, violence or fear." (35) Though "fear of economic loss" is a type of fear, courts have held that it is not considered "wrongful" under the Hobbs Act because the fear of economic harm is a part of many legitimate business transactions. (36) It should be noted, however, that the fear of economic loss has been deemed wrongful "when [it's] employed to achieve a wrongful purpose." (37)

In United States v. Brissette, the First Circuit held that a defendant need not receive a personal benefit when "obtaining" property under the Hobbs Act. (38) The court reached this conclusion by applying the MPC definition of "obtaining," as the court in Scheidler did. (39) Though the defendants argued that the use of the word "obtaining" impliedly imposes a "personal benefit requirement," the court viewed the term in context to rule against the defendants' position. (40) Once the court defined the term, it then used precedent to determine the application of "obtaining of property." (41)

The court rejected the appellees' argument that the element of "obtaining" cannot include a transfer of property to a third party, stating that the defendants misinterpreted the holding in Sekhar v. United States. (42) Aligning itself with the Second, Third, Eighth, Ninth and Tenth Circuits, the First Circuit found that the "obtaining" element of the extortion provision of the Hobbs Act is satisfied when property is transferred to a third party, notwithstanding any personal benefit. (43) Lastly, by clarifying the purpose of the Hobbs Act, the court rejected the defendants' alternative arguments that their conduct did not warrant a Hobbs Act federal violation, but instead a possible common-law coercion violation. (44) Judge Baron, writing for the First Circuit, distinguished coercion from extortion by examining United States v. Enmons and United States v. Kemble, ultimately finding that the act of directing wages to a third person, regardless of whether it's for actual or fictitious labor, constitutes "obtaining property" under the Hobbs Act. (45)

The defendants pointed to a line of cases concerning the "under color of official right" element of Hobbs Act extortion; however, the Court determined that these cases did not address the "obtaining" element and were therefore irrelevant to the case at hand. (46) The court solely dealt with the "under color of official right" element, which was not addressed in Brissette and Sullivan's indictment. (47) The court did not address the "wrongfulness" element of the provision, confining its holding to the "obtaining of property" element that the parties raised on appeal. (48)

Ultimately, the First Circuit improperly expanded the extortion provision of the Hobbs Act in Brissette v. United States. (49) The Supreme Court has repeatedly held that the rule of lenity prevents courts from adopting a broad interpretation of an act where the language and history of the Hobbs Act is ambiguous. (50) In United States v. Bass, the Supreme Court listed two vitally important reasons for applying the rule of lenity: first, "a fair warning" and fair understanding of the law "should be given to the...