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Hobbs Act

18 U.S.C. 1951

The Hobbs Act, 18 U.S.C. 1951, makes it a crime to commit robbery or extortion that affects interstate or foreign commerce.  The Hobbs Act also makes it a crime to attempt to commit those listed offenses.  More often than not, Hobbs Act is used in the context of robbery.  It is also sometimes used to prosecute extortions, but to a lesser extent.  In either case, the Hobbs Act carries significant penalties.  Usually  charges under the Hobbs Act are accompanied by a series of other charges including, 924(c) offenses, conspiracy elements and sometimes RICO violations

The Henry Law Firm PLLC represents people charged with robbery and extortion under the Hobbs Act.  We have successfully argued for reduced sentences and dismissal of charges.  Our attorneys are well versed in challenges to the interstate and foreign commerce prong of the offense, and stand ready to argue against forensic evidence (DNA, fingerprints, cell site history) the government may use.

The Hobbs Act states:

Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be [punished].

18 U. S. C. §1951(a).

Hobbs Act Robbery

The United States Attorney’s Manual makes clear that “the robbery offense in 18 U.S.C. § 1951 is to be utilized, as a general rule, only in instances involving organized crime, gang activity, or wide-ranging schemes.”  Historically, this crime has been used to prosecute robbery sprees involving gas station robberies, commercial institution robberies and other types of robbery that are not classified as bank robbery or pharmacy robbery.  Bank and pharmacy robbery are separate offenses.  In some instances, the government has used the Hobbs Act to prosecute gang on gang violence and the robbery of a drug dealer finding that those offenses affect interstate commerce.

In the context of the Hobbs Act, robbery is defined generally as:

Robbery is the unlawful taking or obtaining of personal property from the person or in the presence of another, against their will, by means of actual or threatened force, or violence, or fear of injury, whether immediately or in the future, to their person or property, or property in their custody or possession, or the person or property of a relative or member of their family or of anyone in their company at the time of the taking or obtaining.

Hobbs Act Extortion

Hobbs Act extortion differs from robbery in one very significant way; consent.  Where as in robbery property is obtained without the consent of the person being robbed, extortion involves the taking of property from a consenting individual.  However, that consent must be induced through force or threats.  Extortion is generally defined as:

Extortion is the obtaining of another person’s property or money, with (his)(her) consent when this consent is induced or brought about through the use of actual or threatened force, violence or fear.

In addition to traditional extortion, the government may also charge that occurs under color of official right.  This particular crime is aimed at government officials or employees.  In essence, this crime attempts to regulate the authority of public office.  As further explanation, the definition of extortion under color of official right is:

A public official or employee commits “extortion under color of official right” if they uses the power and authority of their office in order to obtain money, property, or something of value from another to which neither that public official or employee nor that government office has an official right.   Extortion under color of official right means that a public official induced, obtained, accepted, or agreed to accept a payment to which he or she was not entitled, knowing that the payment was made in return for taking, withholding, or influencing official acts.

Interstate and Foreign Commerce

Robbery and extortion are both crimes that have traditionally been prosecuted by state courts.  However, the government has some ability to regulate traditional state criminal offenses, but only in limited circumstances.  In order for the United States government to regulate robbery and extortion under the Hobbs Act the law looks to the Commerce Clause of the Constitution.

There are three categories of activity that Congress may regulate under its commerce power: (1) the use of the channels of interstate commerce; (2) the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities; and (3) those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce. U.S.C.A. Const. Art. 1, § 8, cl. 3.
Taylor v. United States, 136 S. Ct. 2074 (2016)

By alleging that a robbery or extortion has somehow affected commerce, the government may be authorized to prosecute crimes under the Hobbs Act.  The impact of the crime on interstate commerce does not have to be significant, and the courts have made clear that a minimal impact is sufficient for a conviction.  In some cases, the Courts have found that drug dealing affects interstate commerce as a general principle because drug crimes are regulated under federal law, even if they only occurred intrastate.  The expansion of the commerce prong of the Hobbs Act is troubling.

The Court in Taylor left open the question of how interstate commerce is impacted in cases other than drug robberies.  However, prior cases have determined that the robbery of a fast food restaurant, a gas station, or a pizza delivery man also impacts interstate commerce because of their status as a business with ties to out of state activities and the movement of money and goods.
In explaining how drug dealing affects interstate commerce the Court said:

The production, possession, and distribution of controlled substances constitute a “class of activities” that in the aggregate substantially affect interstate commerce, and therefore, Congress possesses the authority to regulate and to criminalize the production, possession, and distribution of controlled substances even when those activities occur entirely within the boundaries of a single State. U.S.C.A. Const. Art. 1, § 8, cl. 3.

Taylor v. United States, 136 S. Ct. 2074 (2016)

The point of contention as to whether a particular act affects interstate or foreign commerce is a significant issue in the Hobbs Act context.  This is an issue that can and should be raised as there is some reason to believe there still remains division in the Supreme Court on the issue.  The Supreme Court, in a dissent by Justice Thomas pointed out that the decision in Taylor, “creates serious constitutional problems and extends our already expansive, flawed commerce-power precedents.”  Justice Thomas makes the point that the commerce clause has been expended to such a great extent that it should be limited, “[t]o avoid giving Congress a general police power…”

Attempt and Conspiracy

The Hobbs Act can be violated through both attempt and conspiracy.  Attempt and conspiracy are inchoate crimes, meaning they are committed by seeking to or preparing to commit another crime.  In this context, attempt means that a “substantial step towards the completion” of the Hobbs Act violation has occurred.  A conspiracy criminalizes the agreement to commit a Hobbs Act crime.  In both instances, something less than the completion of the actual robbery or extortion is required.

How Can We Help

The federal criminal defense attorneys at The Henry Law Firm PLLC have significant experience representing individuals charged or being investigated for Hobbs Act crimes.  We have represented individuals charged with sophisticated extortion schemes and and a variety of robbery crimes.  Our knowledge of the law behind commerce clause litigation, violent offense sentencing enhancements and the use of forensic evidence by the government gives us the upper hand in Hobbs Act defense.  Call the Henry Law Firm PLLC at 646-820-0224 to learn how our innovation and experience can help you.

Can I Plead the Fifth in a Company Internal Investigation?

You probably already understand that only a state, local, or federal prosecutor can bring criminal charges against you, and that your employer’s attorneys or outside law firm may have the power to discipline you in the form of suspension or termination, but they cannot put you in jail. But what your employer’s lawyers can do is to report information about you – including statements you have made and your work emails and other records – to the government, which can then use that information in any way it pleases, including in preparing civil actions and/or criminal charges against you. Which raises the question of whether it is appropriate for an employee, manager, director, officer, or other individual to raise the protections of the Fifth Amendment in an internal investigation conducted by a business entity.

Why Companies Report Misconduct to the Government

It may seem counterintuitive that your employer would self-report incriminating information relating to its employees’ work on their behalf – as companies are often but not always liable for the acts of employees within the scope of employment – but such is the nature of white collar civil and criminal investigations in recent decades.

More and more, state and federal investigators incentivize companies to self-report wrongdoing by employees. Common ways in which this occurs is that prosecutors and companies will reach a deferred prosecution agreement (DPA) or non-prosecution agreement (NPA), by which the company will avoid prosecution itself by agreeing to undertake other actions, such as paying fines, instituting new procedures, and/or taking actions against individuals in the company perceived to be problematic. This is generally only done when the company makes efforts to self-report, e.g. handing over the findings of an internal investigation.

This of course can be a relatively good outcome for the company, but not for the individuals who are on the receiving end of the company’s internal actions. Furthermore, the government may bring civil and/or criminal proceedings against the individuals based on information provided by the company.

You Are Not Obligated to Incriminate Yourself

The Fifth Amendment protection against self-incrimination applies only to the government and its agents, meaning that it would only make sense for an individual to invoke his or her Fifth Amendment rights when being questioned by an agent of a state, local, or federal government.

That said, you are never obligated to respond to questions from private parties, including your supervisor, HR department, in-house counsel, or an outside law firm conducting an internal investigation. Of course, your employer is, in many cases, not obligated to continue employing if you refuse to participate in an internal investigation related to your conduct at work.

Thus, rather than invoking your Fifth Amendment right in an internal investigation where you have reason to believe negative consequences might flow from what you say, a more appropriate action is to work with an experienced white collar defense attorney who can assess your situation and help you strategize what your best options are in light of your circumstances. Those options might range from simply providing your employer with all information requested to being represented by an attorney during all questioning, and so on, but only a white collar attorney that represents you can provide you with that guidance.

Contact a New York Defense Attorney Today

The Henry Law Firm PLLC provides criminal defense to individuals and businesses throughout New York in all state and federal investigations and prosecutions. If you believe you may be under investigation for any state or federal crime, do not hesitate to contact us today to schedule a confidential consultation regarding your matter.

What Does it Mean to Have “Constructive Possession” of a Firearm in New York?

Although we often hear about a lack of gun control in the U.S., federal agents arrest around 7,000 individuals for firearms violations every year, and many more arrests are made at the state level. While the Second Amendment and current federal regulations do allow for legal ownership of a wide variety of firearms, you can face stiff criminal penalties if arrested for possession of an illegal weapon. Furthermore, felony convicts and others who have had their gun ownership rights revoked also face arrest, which are among the most common type of federal firearms. States and localities such as New York do go further than federal law in regulating firearms, requiring permits for pistol ownership and outlawing assault rifles. But what does it mean to have possession of a firearm in New York? Under the concept of “constructive possession,” defendants in firearms crime cases face legal challenges in asserting their criminal defense in New York.

Possession and Constructive Possession Defined

First off, it should be understood that possession is not the same as ownership. If you are holding a firearm, you are possessing it, regardless of whether someone loaned it to you even for a brief moment, you are transferring it to someone else, or you simply found it.

Constructive possession takes the concept of possession a step further. It says that a person can be considered to have possessed a firearm – and thus run afoul of any relevant firearm laws – even if the firearm was not literally in their possession. Specifically, New York courts have held that: a defendant has property in his or her constructive possession when that defendant:

  • exercises a level of control over the area in which the property is found, OR
  • exercises control over the person from whom the property is seized, AND
  • this control was sufficient to give the defendant the ability to use or dispose of the property

New York legal authorities have also said that two people can both have constructive possession over contraband when: “they each exercise dominion or control over the property by a sufficient level of control over the area in which the property is found.”

Defending Against Constructive Possession Charges

Taking the above definition, this means that prosecutors can bring charges for illegal possession of a firearm when the defendant is not literally possessing the firearm on his body or in his personal belongings, but where a gun is simply found on a person over whom he has control (e.g. a spouse, a child, a subordinate, etc.) or in property he possesses, such as a shared home, vehicle, or business.

That said, it is important to remember that prosecutors must prove every element of a firearms charge beyond a reasonable doubt, and an experienced criminal defense attorney can cast doubt and present contrary arguments against the prosecutor’s allegations.

Such defenses can take any number of specific forms, but might include questioning whether a defendant did in fact have control over the person or the property on which the firearm was found or whether the defendant was even aware of the presence of the firearm. Talk to an experienced criminal defense attorney about the best defense in your particular circumstance.

Contact a New York Defense Attorney Today

The Henry Law Firm PLLC provides criminal defense to individuals and businesses throughout New York in all state and federal investigations and prosecutions. If you believe you may be under investigation for any state or federal crime, do not hesitate to contact us today to schedule a confidential consultation regarding your matter.

Are There Legal Defenses to Extortion/Blackmail?

Extortion and blackmail crimes both involve threats made against another person to do violence to that person or their property – which can include publicizing facts about that person to damage his or her reputation – for the purpose of extracting money or other property from the person. Under both state and federal law, an extortion conviction is a felony that can mean many years in prison, fines, as well as a ruined personal and professional reputation. But sometimes people are investigated and/or charged with extortion based on exaggerations or statements taken out of context. If you are under investigation for extortion, it is important to obtain experienced legal counsel to present your best defenses to the potential charges.

Lack of Evidence to Support an Extortion Charge

Extortion statutes may vary across states and at the federal level, but in general they require that the defendant have knowingly made a threat to damage the person, property, or reputation of a victim with the purpose of obtaining money or other property from the victim.

When a disagreement between parties gets out of control, an extortion or blackmail allegation may arise based on what has actually just heated negotiations and discussions which should not be taken literally or which were not based on an actual intent to threaten another person. Your defense attorney can assess all of the available evidence for relevance and strength and cast doubt on the prosecutor’s allegations in this regard, as the prosecutor is required to prove your intent beyond a reasonable doubt.

Lack of Admissible Evidence

Even where evidence may support elements of an extortion or blackmail charge, that evidence can only be used against you where it is admissible based on being legally obtained by police and other government agents.

If evidence was obtained through illegal means – including custodial interrogations that did not include Miranda warnings, detainments not supported by reasonable suspicion, questionings that did not honor your right to counsel, searches not conducted via a warrant or a warrant exception – your attorney can successfully argue that such evidence should not presented to a jury and that charges should be dismissed.

Attempted Extortion or Conspiracy to Commit Extortion

When no money or property was actually obtained in response to an alleged extortion threat, prosecutors may still try to bring charges based on an attempt to extort or even a conspiracy (agreement) to commit conspiracy. In such cases, your attorney can argue that you did not have the requisite intent for either an attempt or conspiracy and/or that no significant steps were actually taken in furtherance of committing extortion.

Other Defenses to Extortion

Other defenses that your attorney may raise to an extortion charge could include:

  • You performed illegal acts under duress
  • You were voluntarily or involuntarily intoxicated at the time, negating the mental intent
  • You otherwise lacked the mental capacity to commit extortion

Speak to an experienced defense attorney at the first sign of an extortion investigation to begin mounting your best defense to all potential charges.

Contact a New York Extortion Defense Attorney Today

The Henry Law Firm PLLC provides criminal defense to individuals and businesses throughout New York in all state and federal investigations and prosecutions. If you believe you may be under investigation for any state or federal crime, do not hesitate to contact us today to schedule a confidential consultation regarding your matter.  

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