Sekhar v. United States ( 2013 )

(Slip Opinion) OCTOBER TERM, 2012 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
SEKHAR v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No. 12–357. Argued April 23, 2013—Decided June 26, 2013
Investments for the employee pension fund of the State of New York
and its local governments are chosen by the fund’s sole trustee, the
State Comptroller. After the Comptroller’s general counsel recom-
mended against investing in a fund managed by FA Technology Ven-
tures, the general counsel received anonymous e-mails demanding
that he recommend the investment and threatening, if he did not, to
disclose information about the general counsel’s alleged affair to his
wife, government officials, and the media. Some of the e-mails were
traced to the home computer of petitioner Sekhar, a managing part-
ner of FA Technology Ventures. Petitioner was convicted of attempt-
ed extortion, in violation of the Hobbs Act, 18 U.S. C. §1951(a),
which defines “extortion” to mean “the obtaining of property from an-
other, with his consent, induced by wrongful use of actual or threat-
ened force, violence, or fear, or under color of official right,”
§1951(b)(2). The jury specified that the property petitioner attempt-
ed to extort was the general counsel’s recommendation to approve the
investment. The Second Circuit affirmed.
Held: Attempting to compel a person to recommend that his employer
approve an investment does not constitute “the obtaining of property
from another” under the Hobbs Act. Pp. 3–9.
(a) Absent other indication, “Congress intends to incorporate the
well-settled meaning of the common-law terms it uses.” Neder v.
United States, 527 U.S. 1, 23. As far as is known, no case predating
the Hobbs Act—English, federal, or state—ever identified conduct
such as that charged here as extortionate. Extortion required the ob-
taining of items of value, typically cash, from the victim. The Act’s
text confirms that obtaining property requires “not only the depriva-
2 SEKHAR v. UNITED STATES
Syllabus
tion but also the acquisition of property.” Scheidler v. National Or-
ganization for Women, Inc., 537 U.S. 393, 404. The property extort-
ed must therefore be transferable—that is, capable of passing from
one person to another, a defining feature lacking in the alleged prop-
erty here. The genesis of the Hobbs Act reinforces that conclusion.
Congress borrowed nearly verbatim the definition of extortion from a
1909 New York statute but did not copy the coercion provision of that
statute. And in 1946, the time of the borrowing, New York courts
had consistently held that the sort of interference with rights that oc-
curred here was coercion. Finally, this Court’s own precedent de-
mands reversal of petitioner’s convictions. See id., at 404–405.
Pp. 3–8.
(b) The Government’s defense of the theory of conviction is unper-
suasive. No fluent speaker of English would say that “petitioner ob-
tained and exercised the general counsel’s right to make a recom-
mendation,” any more than he would say that a person “obtained and
exercised another’s right to free speech.” He would say that “petition-
er forced the general counsel to make a particular recommendation,”
just as he would say that a person “forced another to make a state-
ment.” Adopting the Government’s theory here would not only make
nonsense of words; it would collapse the longstanding distinction be-
tween extortion and coercion and ignore Congress’s choice to penalize
one but not the other. See Scheidler, supra, at 409. Pp. 8–9.
683 F.3d 436, reversed.
SCALIA, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and THOMAS, GINSBURG, BREYER, and KAGAN, JJ., joined. ALITO,
J., filed an opinion concurring in the judgment, in which KENNEDY and
SOTOMAYOR, JJ., joined.
Cite as: 570 U. S. ____ (2013) 1
Opinion of the Court
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SUPREME COURT OF THE UNITED STATES
_________________
No. 12–357
_________________
GIRIDHAR C. SEKHAR, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 26, 2013]
JUSTICE SCALIA delivered the opinion of the Court.
We consider whether attempting to compel a person to
recommend that his employer approve an investment con-
stitutes “the obtaining of property from another” under
18 U.S. C. §1951(b)(2).
I
New York’s Common Retirement Fund is an employee
pension fund for the State of New York and its local gov-
ernments. As sole trustee of the Fund, the State Comp-
troller chooses Fund investments. When the Comptroller
decides to approve an investment he issues a “Commit-
ment.” A Commitment, however, does not actually bind
the Fund. For that to happen, the Fund and the recipient
of the investment must enter into a limited partnership
agreement. 683 F.3d 436, 438 (CA2 2012).
Petitioner Giridhar Sekhar was a managing partner of
FA Technology Ventures. In October 2009, the Comptrol-
ler’s office was considering whether to invest in a fund
managed by that firm. The office’s general counsel made a
written recommendation to the Comptroller not to invest
in the fund, after learning that the Office of the New York
2 SEKHAR v. UNITED STATES
Opinion of the Court
Attorney General was investigating another fund man-
aged by the firm. The Comptroller decided not to issue a
Commitment and notified a partner of FA Technology
Ventures. That partner had previously heard rumors that
the general counsel was having an extramarital affair.
The general counsel then received a series of anony-
mous e-mails demanding that he recommend moving for-
ward with the investment and threatening, if he did not,
to disclose information about his alleged affair to his wife,
government officials, and the media. App. 59–61. The
general counsel contacted law enforcement, which traced
some of the e-mails to petitioner’s home computer and
other e-mails to offices of FA Technology Ventures.
Petitioner was indicted for, and a jury convicted him of,
attempted extortion, in violation of the Hobbs Act, 18
U.S. C. §1951(a). That Act subjects a person to criminal
liability if he “in any way or degree obstructs, delays, or
affects commerce or the movement of any article or com-
modity in commerce, by robbery or extortion or attempts
or conspires so to do.” §1951(a). The Act defines “extor-
tion” to mean “the obtaining of property from another,
with his consent, induced by wrongful use of actual or
threatened force, violence, or fear, or under color of official
right.” §1951(b)(2).1 On the verdict form, the jury was
asked to specify the property that petitioner attempted to
extort: (1) “the Commitment”; (2) “the Comptroller’s ap-
proval of the Commitment”; or (3) “the General Counsel’s
——————
1 Petitioner was also convicted of several counts of interstate trans-
mission of extortionate threats, in violation of 18 U.S. C. §875(d).
Under §875(d), a person is criminally liable if he, “with intent to extort
from any person, firm, association, or corporation, any money or other
thing of value, transmits in interstate or foreign commerce any com-
munication containing any threat to injure the property or reputation
of the addressee.” In this case, both parties concede that the definition
of “extortion” under the Hobbs Act also applies to the §875(d) counts.
We express no opinion on the validity of that concession.
Cite as: 570 U. S. ____ (2013) 3
Opinion of the Court
recommendation to approve the Commitment.” App. 141–
142. The jury chose only the third option.
The Court of Appeals for the Second Circuit affirmed
the conviction. The court held that the general counsel
“had a property right in rendering sound legal advice to
the Comptroller and, specifically, to recommend—free from
threats—whether the Comptroller should issue a Com-
mitment for [the funds].” 683 F. 3d, at 441. The court
concluded that petitioner not only attempted to deprive
the general counsel of his “property right,” but that peti-
tioner also “attempted to exercise that right by forcing the
General Counsel to make a recommendation determined
by [petitioner].” Id., at 442.
We granted certiorari. 568 U. S. ___ (2013).
II
A
Whether viewed from the standpoint of the common
law, the text and genesis of the statute at issue here, or
the jurisprudence of this Court’s prior cases, what was
charged in this case was not extortion.
It is a settled principle of interpretation that, absent
other indication, “Congress intends to incorporate the
well-settled meaning of the common-law terms it uses.”
Neder v. United States, 527 U.S. 1, 23 (1999).
“[W]here Congress borrows terms of art in which are
accumulated the legal tradition and meaning of cen-
turies of practice, it presumably knows and adopts the
cluster of ideas that were attached to each borrowed
word in the body of learning from which it was taken
and the meaning its use will convey to the judicial
mind unless otherwise instructed.” Morissette v.
United States, 342 U.S. 246, 263 (1952).
Or as Justice Frankfurter colorfully put it, “if a word is
obviously transplanted from another legal source, whether
4 SEKHAR v. UNITED STATES
Opinion of the Court
the common law or other legislation, it brings the old soil
with it.” Some Reflections on the Reading of Statutes, 47
Colum. L. Rev. 527, 537 (1947).
The Hobbs Act punishes “extortion,” one of the oldest
crimes in our legal tradition, see E. Coke, The Third Part
of the Institutes of the Laws of England 148–150 (1648)
(reprint 2008). The crime originally applied only to extor-
tionate action by public officials, but was later extended
by statute to private extortion. See 4 C. Torcia, Wharton’s
Criminal Law §§695, 699 (14th ed. 1981). As far as is
known, no case predating the Hobbs Act—English, federal,
or state—ever identified conduct such as that charged
here as extortionate. Extortion required the obtaining of
items of value, typically cash, from the victim. See, e.g.,
People v. Whaley, 6 Cow. 661 (N. Y. Sup. Ct. 1827) (justice
of the peace properly indicted for extorting money); Com-
monwealth v. Bagley, 24 Mass. 279 (1828) (officer properly
convicted for demanding a fee for letting a man out of
prison); Commonwealth v. Mitchell, 66 Ky. 25 (1867)
(jailer properly indicted for extorting money from pris-
oner); Queen v. Woodward, 11 Mod. 137, 88 Eng. Rep. 949
(K. B. 1707) (upholding indictment for extorting “money
and a note”). It did not cover mere coercion to act, or to
refrain from acting. See, e.g., King v. Burdett, 1 Ld. Raym.
149, 91 Eng. Rep. 996 (K. B. 1696) (dictum) (extortion
consisted of the “taking of money for the use of the stalls,”
not the deprivation of “free liberty to sell [one’s] wares in
the market according to law”).
The text of the statute at issue confirms that the
alleged property here cannot be extorted. Enacted in 1946,
the Hobbs Act defines its crime of “extortion” as “the ob-
taining of property from another, with his consent, induced
by wrongful use of actual or threatened force, violence,
or fear, or under color of official right.” 18 U.S. C.
§1951(b)(2) (emphasis added). Obtaining property re-
quires “not only the deprivation but also the acquisition of
Cite as: 570 U. S. ____ (2013) 5
Opinion of the Court
property.” Scheidler v. National Organization for Women,
Inc., 537 U.S. 393, 404 (2003) (citing United States v.
Enmons, 410 U.S. 396, 400 (1973)). That is, it requires
that the victim “part with” his property, R. Perkins & R.
Boyce, Criminal Law 451 (3d ed. 1982), and that the extor-
tionist “gain possession” of it, Scheidler, supra, at 403,
n. 8; see also Webster’s New International Dictionary 1682
(2d ed. 1949) (defining “obtain”); Murray, Note, Protesters,
Extortion, and Coercion: Preventing RICO from Chilling
First Amendment Freedoms, 75 Notre Dame L. Rev. 691,
706 (1999) (Murray). The property extorted must there-
fore be transferable—that is, capable of passing from one
person to another. The alleged property here lacks that
defining feature.2
The genesis of the Hobbs Act reinforces that conclusion.
The Act was modeled after §850 of the New York Penal
Law (1909), which was derived from the famous Field
Code, a 19th-century model penal code, see 4 Commission-
ers of the Code, Penal Code of the State of New York §613,
p. 220 (1865) (reprint 1998). Congress borrowed, nearly
verbatim, the New York statute’s definition of extortion.
See Scheidler, 537 U. S., at 403. The New York statute
contained, in addition to the felony crime of extortion, a
new (that is to say, nonexistent at common law) misde-
meanor crime of coercion. Whereas the former required,
as we have said, “ ‘the criminal acquisition of . . . property,’ ”
ibid., the latter required merely the use of threats “to
——————
2 It may well be proper under the Hobbs Act for the Government to
charge a person who obtains money by threatening a third party, who
obtains funds belonging to a corporate or governmental entity by
threatening the entity’s agent, see 2 J. Bishop, Criminal Law §408, p.
334, and n. 3 (9th ed. 1923) (citing State v. Moore, 1 Ind. 548 (1849)), or
who obtains “goodwill and customer revenues” by threatening a market
competitor, see, e.g., United States v. Zemek, 634 F.2d 1159, 1173 (CA9
1980). Each of these might be considered “obtaining property from
another.” We need not consider those situations, however, because the
Government did not charge any of them here.
6 SEKHAR v. UNITED STATES
Opinion of the Court
compel another person to do or to abstain from doing an
act which such other such person has a legal right to do
or to abstain from doing.” N. Y. Penal Law §530 (1909),
earlier codified in N. Y. Penal Code §653 (1881). Congress
did not copy the coercion provision. The omission must
have been deliberate, since it was perfectly clear that
extortion did not include coercion. At the time of the
borrowing (1946), New York courts had consistently held
that the sort of interference with rights that occurred here
was coercion. See, e.g., People v. Ginsberg, 262 N.Y. 556,
188 N.E. 62 (1933) (per curiam) (compelling store owner
to become a member of a trade association and to remove
advertisements); People v. Scotti, 266 N.Y. 480, 195 N.E.
162 (App. Div. 1934) (compelling victim to enter into
agreement with union); People v. Kaplan, 240 A.D.
72, 74–75, 269 N. Y. S. 161, 163–164, aff ’d, 264 N.Y. 675,
191 N.E. 621 (1934) (compelling union members to drop
lawsuits against union leadership).3
——————
3 Also revealing, the New York code prohibited conspiracy “[t]o pre-
vent another from exercising a lawful trade or calling, or doing any
other lawful act, by force, threats, intimidation.” N. Y. Penal Law
§580(5) (1909) (emphasis added). That separate codification, which Con-
gress did not adopt, is further evidence that the New York crime of
extortion (and hence the federal crime) did not reach interference with
a person’s right to ply a lawful trade, similar to the right claimed here.
Seeking to extract something from the void, the Government relies
on cases that interpret a provision of the New York code defining
the kinds of threats that qualify as threats to do “unlawful injury to the
person or property,” which is what the extortion statute requires. See
N. Y. Penal Code §553 (1881); N. Y. Penal Law §851 (1909). Those
cases held that they include threats to injure a business by preventing
the return of workers from a strike, People v. Barondess, 133 N.Y. 649,
31 N.E. 240, 241–242 (1892) (per curiam), and threats to terminate a
person’s employment, People ex rel. Short v. Warden, 145 A.D. 861,
130 N. Y. S. 698, 700–701 (1911), aff’d, 206 N.Y. 632, 99 N.E. 1116(1912) (per curiam). Those cases are entirely inapposite here, where
the issue is not what constitutes a qualifying threat but what consti-
tutes obtainable property.
Cite as: 570 U. S. ____ (2013) 7
Opinion of the Court
And finally, this Court’s own precedent similarly de-
mands reversal of petitioner’s convictions. In Scheidler,
we held that protesters did not commit extortion under the
Hobbs Act, even though they “interfered with, disrupted,
and in some instances completely deprived” abortion
clinics of their ability to run their business. 537 U. S., at
404–405. We reasoned that the protesters may have
deprived the clinics of an “alleged property right,” but they
did not pursue or receive “ ‘something of value from’ ” the
clinics that they could then “exercise, transfer, or sell”
themselves. Id., at 405. The opinion supported its holding
by citing the three New York coercion cases discussed
above. See id., at 405–406.
This case is easier than Scheidler, where one might at
least have said that physical occupation of property
amounted to obtaining that property. The deprivation
alleged here is far more abstract. Scheidler rested its
decision, as we do, on the term “obtaining.” Id., at 402,
n. 6. The principle announced there—that a defendant
must pursue something of value from the victim that can
be exercised, transferred, or sold—applies with equal force
here.4 Whether one considers the personal right at issue
——————
4 The Government’s attempt to distinguish Scheidler is unconvinc-
ing. In its view, had the protesters sought to force the clinics to pro-
vide services other than abortion, extortion would have been a proper
charge. Petitioner committed extortion here, the Government says,
because he did not merely attempt to prevent the general counsel from
giving a recommendation but tried instead to force him to issue one.
That distinction is, not to put too fine a point on it, nonsensical. It is
coercion, not extortion, when a person is forced to do something and
when he is forced to do nothing. See, e.g., N. Y. Penal Law §530 (1909)
(it is a misdemeanor to coerce a “person to do or to abstain from doing
an act”). Congress’s enactment of the Hobbs Act did not, through the
phrase “obtaining of property from another,” suddenly transform every
act that coerces affirmative conduct into a crime punishable for up to 20
years, while leaving those who “merely” coerce inaction immune from
federal punishment.
8 SEKHAR v. UNITED STATES
Opinion of the Court
to be “property” in a broad sense or not, it certainly was
not obtainable property under the Hobbs Act.5
B
The Government’s shifting and imprecise characteriza-
tion of the alleged property at issue betrays the weakness
of its case. According to the jury’s verdict form, the “prop-
erty” that petitioner attempted to extort was “the General
Counsel’s recommendation to approve the Commitment.”
App. 142. But the Government expends minuscule effort
in defending that theory of conviction. And for good
reason—to wit, our decision in Cleveland v. United States,
531 U.S. 12 (2000), which reversed a business owner’s
mail-fraud conviction for “obtaining money or property”
through misrepresentations made in an application for a
video-poker license issued by the State. We held that
a “license” is not “property” while in the State’s hands and
so cannot be “obtained” from the State. Id., at 20–22.
Even less so can an employee’s yet-to-be-issued recom-
mendation be called obtainable property, and less so still
a yet-to-be-issued recommendation that would merely ap-
prove (but not effect) a particular investment.
Hence the Government’s reliance on an alternative,
more sophisticated (and sophistic) description of the
property. Instead of defending the jury’s description, the Gov-
ernment hinges its case on the general counsel’s “intangi-
ble property right to give his disinterested legal opinion to
——————
5 The concurrence contends that the “right to make [a] recommenda-
tion” is not property. Post, at 4 (ALITO, J., concurring in judgment). We
are not sure of that. If one defines property to include anything of
value, surely some rights to make recommendations would qualify—for
example, a member of the Pulitzer Prize Committee’s right to recom-
mend the recipient of the prize. I suppose that a prominent journalist
would not give up that right (he cannot, of course, transfer it) for a
significant sum of money—so it must be valuable. But the point
relevant to the present case is that it cannot be transferred, so it cannot
be the object of extortion under the statute.
Cite as: 570 U. S. ____ (2013) 9
Opinion of the Court
his client free of improper outside interference.” Brief for
United States 39. But what, exactly, would the petitioner
have obtained for himself? A right to give his own disin-
terested legal opinion to his own client free of improper
interference? Or perhaps, a right to give the general coun-
sel’s disinterested legal opinion to the general counsel’s
client?
Either formulation sounds absurd, because it is. Clearly,
petitioner’s goal was not to acquire the general coun-
sel’s “intangible property right to give disinterested legal
advice.” It was to force the general counsel to offer advice
that accorded with petitioner’s wishes. But again, that is
coercion, not extortion. See Murray 721–722. No fluent
speaker of English would say that “petitioner obtained
and exercised the general counsel’s right to make a rec-
ommendation,” any more than he would say that a person
“obtained and exercised another’s right to free speech.” He
would say that “petitioner forced the general counsel to
make a particular recommendation,” just as he would
say that a person “forced another to make a statement.”
Adopting the Government’s theory here would not only
make nonsense of words; it would collapse the longstand-
ing distinction between extortion and coercion and ignore
Congress’s choice to penalize one but not the other. See
Scheidler, supra, at 409. That we cannot do.
The judgment of the Court of Appeals for the Second
Circuit is reversed.
It is so ordered.
Cite as: 570 U. S. ____ (2013) 1
ALITO, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–357
_________________
GIRIDHAR C. SEKHAR, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 26, 2013]
JUSTICE ALITO, with whom JUSTICE KENNEDY and JUS-
TICE SOTOMAYOR join, concurring in the judgment.
The question that we must decide in this case is whether
“the General Counsel’s recommendation to approve the
Commitment,” App. 142—or his right to make that rec-
ommendation—is property that is capable of being ex-
torted under the Hobbs Act, 18 U.S. C. §1951. In my view,
they are not.
I
The jury in this case returned a special verdict form
and stated that the property that petitioner attempted
to extort was “the General Counsel’s recommendation to
approve the Commitment.” What the jury obviously
meant by this was the general counsel’s internal sugges-
tion to his superior that the state government issue a
nonbinding commitment to invest in a fund managed by
FA Technology Ventures. We must therefore decide
whether this nonbinding internal recommendation by a
salaried state employee constitutes “property” within the
meaning of the Hobbs Act, which defines “extortion” as
“the obtaining of property from another, with his con-
sent, induced by wrongful use of actual or threatened
force, violence, or fear, or under color of official right.”
§1951(b)(2).
2 SEKHAR v. UNITED STATES
ALITO, J., concurring in judgment
The Hobbs Act does not define the term “property,” but
even at common law the offense of extortion was under-
stood to include the obtaining of any thing of value. 2 E.
Coke, The First Part of the Institutes of the Laws of
England 368b (18th English ed. 1823) (“Extortion . . . is a
great misprison, by wresting or unlawfully taking by any
officer, by colour of his office, any money or valuable thing
of or from any man”); 4 W. Blackstone, Commentaries
*141 (extortion is “an abuse of public, justice which con-
sists in any officer’s unlawfully taking, by colour of his
office, from any man, any money or thing of value”). See
also 2 J. Bishop, Criminal Law §401, pp. 331–332 (9th ed.
1923) (“In most cases, the thing obtained is money. . . . But
probably anything of value will suffice”); 3 F. Wharton, A
Treatise on Criminal Law §1898, p. 2095 (11th ed. 1912)
(“[I]t is enough if any valuable thing is received”).
At the time Congress enacted the Hobbs Act, the con-
temporary edition of Black’s Law Dictionary included an
expansive definition of the term. See Black’s Law Diction-
ary 1446 (3d ed. 1933). It stated that “[t]he term is said to
extend to every species of valuable right and interest. . . .
The word is also commonly used to denote everything
which is the subject of ownership, corporeal or incorporeal,
tangible or intangible, visible or invisible, real or personal;
everything that has an exchangeable value or which goes
to make up wealth or estate.” Id., at 1446–1447. And the
lower courts have long given the term a similarly expan-
sive construction. See, e.g., United States v. Tropiano,
418 F.2d 1069, 1075 (CA2 1969) (“The concept of prop-
erty under the Hobbs Act . . . includes, in a broad sense,
any valuable right considered as a source or element of
wealth”).
Despite the breadth of some of these formulations,
however, the term “property” plainly does not reach every-
thing that a person may hold dear; nor does it extend to
everything that might in some indirect way portend the
Cite as: 570 U. S. ____ (2013) 3
ALITO, J., concurring in judgment
possibility of future economic gain. I do not suggest that
the current lower court case law is necessarily correct, but
it seems clear that the case now before us is an outlier and
that the jury’s verdict stretches the concept of property
beyond the breaking point.
It is not customary to refer to an internal recommenda-
tion to make a government decision as a form of property.
It would seem strange to say that the government or its
employees have a property interest in their internal rec-
ommendations regarding such things as the issuance of
a building permit, the content of an environmental impact
statement, the approval of a new drug, or the indictment
of an individual or a corporation. And it would be even
stranger to say that a private party who might be affected
by the government’s decision can obtain a property inter-
est in a recommendation to make the decision. See, e.g.,
Doyle v. University of Alabama, 680 F.2d 1323, 1326
(CA11 1982) (“Doyle had no protected property interest
in the mere recommendation for a raise; thus she was not
entitled to due process safeguards when the recommended
raise was disapproved by the University”).
Our decision in Cleveland v. United States, 531 U.S. 12(2000), supports the conclusion that internal recommenda-
tions regarding government decisions are not property. In
Cleveland, we vacated a business owner’s conviction under
the federal mail fraud statute, 18 U.S. C. §1341, for “ob-
taining money or property” through misrepresentations
made in an application for a video poker license issued by
the State. We held that a video poker license is not prop-
erty in the hands of the State. Cleveland, supra, at 15. I
do not suggest that the concepts of property under the
mail fraud statute and the Hobbs Act are necessarily the
same. But surely a video poker license has a stronger
claim to be classified as property than a mere internal
recommendation that a state government take an initial
step that might lead eventually to an investment that
4 SEKHAR v. UNITED STATES
ALITO, J., concurring in judgment
would be beneficial to private parties.
The Government has not cited any Hobbs Act case
holding that an internal recommendation regarding a gov-
ernment decision constitutes property. Nor has the Gov-
ernment cited any other example of the use of the term
“property” in this sense.*
The Second Circuit recharacterized the property that
petitioner attempted to obtain as the general counsel’s
“right to make a recommendation consistent with his legal
judgment.” 683 F.3d 436, 442 (2012). And the Govern-
ment also presses that theory in this Court. Brief for
United States 15, 34–45. According to the Government,
the general counsel’s property interest in his recommenda-
tion encompasses the right to make the recommendation.
Id., at 35–36. But this argument assumes that the rec-
ommendation itself is property. See id., at 35 (the general
counsel’s “ ‘recommendation’ and his ‘right to make the
recommendation’ are merely different expressions of the
same property”). If an internal recommendation regarding
a government decision does not constitute property, then
surely a government employee’s right to make such a
recommendation is not property either (nor could it be
deemed a property right).
II
The Government argues that the recommendation was
the general counsel’s personal property because it was
——————
* To recognize that an internal recommendation regarding a govern-
ment decision is not property does not foreclose the possibility that
threatening a government employee, as the government’s agent, in
order to secure government property could qualify as Hobbs Act extor-
tion. Here, after all, petitioner’s ultimate goal was to secure an invest-
ment of money from the government. But the jury found only that
petitioner had attempted to obtain the general counsel’s recommenda-
tion, so I have no occasion to consider whether a Hobbs Act conviction
could have been sustained on a different legal theory.
Cite as: 570 U. S. ____ (2013) 5
ALITO, J., concurring in judgment
inextricably related to his right to pursue his profession as
an attorney. See id., at 34–35. But that argument is
clearly wrong: If the general counsel had left the State’s
employ before submitting the recommendation, he could
not have taken the recommendation with him, and he
certainly could not have given it or sold it to someone else.
Therefore, it is obvious that the recommendation (and the
right to make it) were inextricably related to the general
counsel’s position with the government, and not to his
broader personal right to pursue the practice of law.
The general counsel’s job surely had economic value to
him, as did his labor as a lawyer, his law license, and his
reputation as an attorney. But the indictment did not
allege, and the jury did not find, that petitioner attempted
to obtain those things. Nor would such a theory make
sense in the context of this case. Petitioner did not, for
example, seek the general counsel’s legal advice or de-
mand that the general counsel represent him in a legal
proceeding. Cf. United States v. Thompson, 647 F.3d 180,
186–187 (CA5 2011) (a person’s labor is property capable
of being extorted). Nor did petitioner attempt to enhance
his own ability to compete with the general counsel for
legal work by threatening to do something that would, say,
tarnish the general counsel’s reputation or cause his law
license to be revoked. Cf. Tropiano, 418 F. 2d, at 1071–
1072, 1075–1077 (threats to competitor in order to obtain
customers constitute extortion); United States v. Zemek,
634 F.2d 1159, 1173–1174 (CA9 1980) (same); United
States v. Coffey, 361 F. Supp. 2d 102, 108–109 (EDNY
2005) (the right to pursue a lawful business is extortable
property under the Hobbs Act).
The Court holds that petitioner’s conduct does not
amount to attempted extortion, but for a different reason:
According to the Court, the alleged property that petition-
er pursued was not transferrable and therefore is not
capable of being “obtained.” Ante, at 4–5, 7–8. Because I
6 SEKHAR v. UNITED STATES
ALITO, J., concurring in judgment
do not believe that the item in question constitutes prop-
erty, it is unnecessary for me to determine whether or not
petitioner sought to obtain it.
* * *
If Congress had wanted to classify internal recommen-
dations pertaining to government decisions as property,
I think it would have spoken more clearly than it did in
the Hobbs Act. But even if the Hobbs Act were ambiguous
on this point, the rule of lenity would counsel in favor of an
interpretation of the statute that does not reach so broadly,
see Scheidler v. National Organization for Women, Inc.,
537 U.S. 393, 409 (2003). This is not to say that the
Government could not have prosecuted petitioner for ex-
tortion on these same facts under some other theory.
The question before us is whether the general counsel’s
recommendation—or the right to make it—constitutes
property under the Hobbs Act. In my view, they do not.
For these reasons, I concur in the Court’s judgment.