Wednesday, October 15, 2014
PROOF OF AN OVERT ACT AND RECEIPT OF A BENEFIT ARE NOT REQUIRED TO PROVE CONSPIRACY UNDER THE HOBBS ACT. A DEFENDANT CAN BE GUILTY OF CONSPIRACY TO EXTORT, BUT NOT GUILTY OF ATTEMPT TO EXTORT.
Appellants Ronald Salahuddin, a former deputy mayor of Newark, and Sonnie Cooper, a demolition contractor, appealed their convictions under the Hobbs Act, 18 U.S.C. §1951(a), for conspiring to extort under color of official right. Specifically, Salahuddin was charged with using his office to obtain charitable and political donations, and to direct contracts to Cooper’s business. There was also evidence that Salahuddin was a “silent partner” in Cooper’s demolition business. The government used a confidential informant (“C.I.”) to gather evidence against the appellants. The C.I., in turn, avoided prosecution on bribery and tax evasion charges. Appellants were charged in a five count indictment, but were convicted only of the conspiracy charge. They each raised numerous, separate issues on appeal, which the Third Circuit rejected in United States v. Salahuddin (13-1751).
Salahuddin argued that conviction under the Hobbs Act required proof of an overt act. As a matter of first impression, the Third Circuit ruled that conviction under the conspiracy provisions of the Hobbs Act does not require proof of an overt act. The appellate court applied the Supreme Court holdings in U.S v. Shabani, 513 U.S. 10 (1994) and Whitfield v. U. S., 543 U.S. 209 (2005), which stand for the proposition that when a statue is silent on the issue of overt acts, then proof of an overt act is not required. While most circuits have ruled similarly, at least one circuit has required proof of an overt act. On a related appellate issue, Salahuddin argued that the indictment was constructively amended because it included overt acts in the indictment, but the jury instructions did not require proof of those acts. Initially the Third Circuit was unconvinced that the language in the indictment referred to overt acts. More importantly, the Third Circuit rejected this argument because overt acts was not a required element of the offense.
Salahuddin then argued that the government was required to show that at least one member of the conspiracy received a benefit from the conduct. The Third Circuit rejected this argument. The circuit court noted that a conspiracy charge differs from completion of an offense. The fact that conspirators failed in their goal to obtain a benefit through extortion does not negate the conspiracy offense. Therefore proof that defendants received the desired benefit is not required for conviction of conspiracy under the Hobbs Act.
Additionally, Salahuddin raised several potential jury instruction errors. First, he challenged his conviction on the basis that the jury was not instructed to find a quid pro quo arrangement between himself and the C.I. for the charitable donations to organizations supported by city officials in exchange for demolition work. Since no quid pro quo requirement exists for cases involving non-campaign charitable donations, the trial court was not required to give such a jury instruction. Next, Salahuddin contended that in addition to the general unanimity instruction, the court should have sua sponte instructed the jurors that they needed to unanimously agree to facts supporting one object of the conspiracy. The appellate court rejected this argument, finding that the trial court was not required to issue such a jury instruction. Finally, Salahuddin challenged the jury instructions because the trial court did not initially provide the definition of extortion under color of official right when reading the jury instruction on conspiracy. However, the trial court provided the definition moments later. The appellate court found that the brief delay between the reading of the initial instruction and the definition was not plain error.
Appellant Cooper also raised several appellate issues, all of which were rejected by the Third Circuit. First, Cooper challenged the denial of his Rule 33 motion. Specifically, he argued that the evidence did not support the verdict because the C.I’s testimony was biased and false, and further the government did not provide sufficient evidence. The Third Circuit affirmed the denial of the motion ruling that issues concerning the C.I.’s credibility were for the jury to weigh and decide. Moreover, the jury was aware of the C.I’s motivations for testifying, i.e., his deal with the government. Furthermore, in addition to the C.I’s testimony, the government provided recordings of the appellants which provided strong evidence against themselves. Finally, regarding evidentiary matters, the Third Circuit ruled that direct evidence was not necessary, but rather the charges could be proved through circumstantial evidence.
Next, Cooper challenged the denial of his Rule 29 motion. The motion was based on the same arguments made in support of the Rule 33 motion, plus he further argued that the jury’s not guilty verdict on the Hobbs Act attempt charge was inconsistent with the guilty verdict on the conspiracy charge. The appellate court explained that the requirements for an attempt count are different from a conspiracy count. Specifically, “attempt” requires evidence that the defendants took a substantial step toward completion of the extortion, while “conspiracy” does not require an overt act. Also, it is possible to enter into a conspiracy, but not take a substantial step toward completion of the offense. Therefore, the verdicts were not inconsistent.
Lastly, Cooper argued that the trial court should have granted his motion to vacate the conviction based on “selective prosecution and outrageous government conduct.” This issue was waived because Cooper did not raise it before trial.
For all of the reasons discussed above, the Third Circuit affirmed the convictions of both Salahuddin and Cooper.
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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