Friday, April 25, 2014
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.
Amendment 801 to § 2G2.2(b)(3)(F) is a substantive change to the Guidelines, and does not apply retroactively under § 2255
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