Public Official’s “Influence” over Governmental Decision Sufficient to Establish Hobbs Act Extortion

United States v. Bencivengo, No. 13-1836. Defendant John Bencivengo was the mayor of Hamilton Township, New Jersey, when he hit up his close friend, Marliese Ljuba, for some help with money. In exchange, Bencivengo offered to convince a member of the local school board not to put up for bid Ljuba’s highly lucrative commissions as the school board’s insurance broker. In addition, Bencivengo agreed to approve a candidate proposed by Ljuba for a vacant seat on the board. At Bencivengo’s subsequent trial, Ljuba testified she believed Bencivengo could influence the school board member because “the Mayor is the head of the Republican party in Hamilton Township,” and that his endorsement of her proposed candidate was a practical necessity “if you want a position on the school district.” As a formal matter, Mayor Bencivengo had no official authority over actions of the school board, no actual power to replace a board member, and no other means of ensuring that Ljuba retained her brokerage contract.

Held, in prosecution for extortion under color of official right in violation of Hobbs Act, government not required to prove defendant had “effective power” over decision whether to place contract for bid; enough to show that defendant has, and agrees to wield, “influence over a governmental decision,” or that defendant’s official “position could permit such influence,” and victim reasonably believed defendant wields such influence. Conviction affirmed.

Separately, the Court holds that an indictment charging a Travel Act violation in one count and a Hobbs Act violation in another based on the same transaction is not multiplicitious in violation of the Double Jeopardy Clause. The Travel Act requires proof of interstate travel or use of the mails or other interstate facility, whereas the Hobbs Act requires proof of an effect on interstate commerce.

The Court further holds that the district judge’s statements in front of the jury, which “admonished defense counsel on several occasions to clarify questions that perhaps did not need to be clarified, as they were clearly understood, “ did not give rise to reversible error. The jury was twice instructed not to draw any inference from the court’s comments as to whether it held any opinion as to the defendant’s guilt, and evidence of guilt was in any event overwhelming.

Practice Note: Bencivengo suggests that where a challenge to the sufficiency of the evidence is predicated on a disputed construction of the charging statute, preserving the sufficiency claim requires that objection also be raised to any jury instruction embodying the government’s preferred construction. Thus, while instructional error would seem to be distinct from evidentiary insufficiency, special care should now be taken in asserting and preserving this genus of claims. Clearly, this is the best practice in any event, as challenges premised on a construction of the charging statute will ordinarily support both a corresponding instruction and a Rule 29 motion for judgment of acquittal.

Conviction Vacated Because Venue Did Not Lie in New Jersey in Computer Fraud and Abuse Act Prosecution

In United States v. Auernheimer, No. 13-1816, the defendant was accused of hacking into AT&T's system and obtaining the email addresses of 114,000 iPad owners.  Neither he, his co-conspirator, nor the servers he hacked were in New Jersey, but some of the iPad owners lived there, and the government prosecuted him in the District of New Jersey.  The district court denied his request for a jury instruction on venue, reasoning that venue properly lied in New Jersey as a matter of law.

The Third Circuit reversed, noting that proper venue is twice guaranteed to a criminal defendant in the Constitution, at Article III, Section 2, Clause 3 and in the Sixth Amendment.  It is also codified in Federal Rule of Criminal Procedure 18.  The panel reasoned that neither of the "essential conduct elements" of the Computer Fraud and Abuse Act ("CFAA") offense - accessing a computer without authorization, and obtaining information - occurred in New Jersey.  Further, because the government charged Auernheimer with conspiring to violate the CFFA in furtherance of a New Jersey state crime, neither of the conduct elements of that offense (accessing a computer without authorization, and disclosing information) occurred in New Jersey either.  Therefore, venue was not proper on the conspiracy count.

With respect to the identity fraud offense, neither of the essential conduct elements (transfer, possession or use, and doing so in connection with a federal crime or state felony) occurred in New Jersey, so venue was not proper on that charge.

The Court rejected the government's policy arguments for discounting the ordinary "essential conduct elements" test for venue.  It also rejected the government's argument that the venue error was harmless.  The Court indicated that a venue error may be structural and in any case this error was not harmless.  The Court reversed the district court's venue determination and vacated Auernheimer's conviction. 

Special thanks to Claudia Van Wyk for her contributions to this post!

 

 


 

Congress' Delegation of Authority to Determine SORNA's Applicability to Pre-Act Sex Offenders Did Not Violate the Nondelegation Doctrine

In United States v. Cooper, No. 13-2324, the Third Circuit considered whether Congress' decision to delegate authority to determine the applicability of federal registration requirements to sex offenders convicted before the Sex Offender Registration and Notification Act's ("SORNA") enactment was constitutional.  SORNA makes it a federal crime for any person who is required to register, and who travels in interstate or foreign commerce, to knowingly fail to register or to update his or her registration. 18 U.S.C. § 2250(a). The statute defines sex offenders to include persons convicted of sex offenses prior to SORNA’s enactment. 42 U.S.C. § 16911(1). However, Congress delegated to the Attorney General the authority to determine whether SORNA’s registration requirements would apply to pre-SORNA sex offenders. The Attorney General has since determined that SORNA’s registration requirements do in fact apply to offenders convicted of sex offenses prior to SORNA’s enactment. 28 C.F.R. § 72.3.

The Court determined that Congress’ delegation of this responsibility to the Attorney General was constitutional under the "nondelegation doctrine," which is rooted in the principle of separation of powers. The Court declined to apply a heightened standard here simply because Congress delegated the authority to create criminal liability. Instead, the Third Circuit analyzed Congress’ delegation of authority under the more common "intelligible principle" test. Under the intelligible principle test, a delegation of authority is constitutional so long as Congress "clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority." See Mistretta v. United States, 488 U.S. 361, 372-73 (1989). The Court ultimately concluded that since Congress laid out the general policy underlying the SORNA, the public agency to apply the policy, and the boundaries of the delegated authority, its delegation to the Attorney General did not violate the nondelegation doctrine.
 

Second or Successive 2255 Petition Not Authorized to Seek Relief Under Alleyne v. United States

Two brothers in United States v. Winkleman, Nos. 03-4500, 03-4753, filed motions in the Third Circuit requesting that it recall its mandate and reinstate their direct appeals so they could try to seek relief under Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013). Alleyne held that "any fact that increases the mandatory minimum [sentence] is an ‘element’ that must be submitted to the jury" and proved beyond a reasonable doubt. The Court construed the motions as successive collateral attacks on the Winklemans’ convictions and sentences under 28 U.S.C. § 2255.

A second or successive § 2255 petition is only authorized if it is based on newly discovered evidence or a new rule of constitutional law, "made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." Even if Alleyne announced a new rule of law, the Supreme Court has not made it retroactive to cases on collateral review. It is not a new substantive rule that places certain private activity beyond the reach of the criminal laws and it is not a watershed rule of criminal procedure that alters "our understanding of the bedrock procedural elements" of the adjudicatory process.

For those proceeding outside the successive petition context, it may be possible to argue that the Court's statement that Alleyne is not a watershed rule is dictum, since it was not necessary to the Court's ruling on retroactivity for successors under Tyler v. Cain, 533 U.S. 656, 668 (2001).