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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 Go to Jail For Using Bitcoin?

Bitcoin and similar “crytpocurrencies” have been around for years, but Bitcoin is getting a lot more attention than usual in 2017, primarily based on the fact that such currencies have risen in value six times over since the start of the year, and $6.6 billion in digital currencies are now traded daily. This growth in digital currencies is having some effect on mitigating the cloud of controversy that has hung over Bitcoin and similar currencies, which is partly due to the mysterious origins of Bitcoin (for years its inventor remained anonymous) and the frequent use of Bitcoin in criminal transactions. But, as digital currency grows in popularity, more individuals and businesses are justifiably interested in learning more while understandably cautious about the legality.

Digital Currency Usage Is Not Inherently Illegal

Individuals and businesses are permitted to use Bitcoin and other similar currencies, although some states such as New York do impose licensing requirements on certain parties. Under New York State’s recently promulgated BitLicense rules, parties engaged in the following activities are required to obtain a BitLicense from the state if they are conducting business in New York or with people who reside in New York:

  • Virtual currency transmission
  • Storing, holding, or maintaining custody or control of virtual currency on behalf of others
  • Buying and selling virtual currency as a customer business
  • Performing exchange services as a customer business
  • Controlling, administering, or issuing a virtual currency

Customers and merchants who merely conduct transactions involving digital currency are not required to obtain a license in New York.

Criminal Liability With Bitcoin

The most common situations in the news involving criminal liability for use of Bitcoin and similar currencies is when the currency is used for illegal purposes. Several high-profile individuals have been convicted of crimes in connection with an online marketplace called Silk Road where illegal transactions involving criminal acts for hire, illegal pornography, and drug trafficking were facilitated by use of Bitcoin.

In one case, an entrepreneur who ran a service facilitating Bitcoin transactions pled guilty and served time in federal prison for facilitating the purchase of illegal drugs on Silk Road using Bitcoin. In another case, the founder of Silk Road was sentenced to life in prison for his role in facilitating illegal transactions using Bitcoin, and his trial included evidence of five potential murder-for-hires that he sought out “to protect his burgeoning creation from informants.”

Bitcoin and similar currencies have also been factors in criminal investigations and prosecutions involving fraudulent securities dealings as well as money laundering. Ultimately, many of the same finance-related crimes that can be committed with traditional currency can also be committed with digital currency, although, perhaps ironically given the attraction many of had to the supposed privacy of digital currency, crimes involving digital currency have become easier for law enforcement to investigate in some cases.

When faced with any questions over potential criminal liability for a proposed transaction or one that has already occurred, parties are highly encouraged to speak with an experienced criminal defense attorney regarding their situation.

Contact a New York White Collar 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, and aggressively pursues appeals on their behalf. To take immediate action to defend your rights in a white collar investigation or prosecution, do not hesitate to contact us today to schedule a confidential consultation regarding your matter.

When Do I Have a Right to an Attorney?

As residents of the United States – whether citizens or not – we enjoy the greatest legacy of constitutional rights against government overreach into our personal lives that the world has known, and this legacy is most famously embedded in our constitution’s approach to the rights of people against police and prosecutors. But, in many cases, unless a person is actually aware of what those rights are and how to utilize them, those rights can be wasted. This is especially true with regard to our constitutional right to an attorney. Below we briefly discuss what that means and how you can assert those rights.

Don’t Speak: The Fifth Amendment Right to an Attorney

We often speak of the “right to an attorney” as if it were a single right provided by the constitution, but really there are two distinct but related sources of this right in the constitution. The first is the Fifth Amendment, which states that a person has the right against self-incrimination. What that means is that you cannot be forced to give the government damaging information about yourself that could lead to a conviction.

The federal courts have more fully illustrated what that means by also ruling that a person does not need to provide any information to a government agent questioning him. In addition, the courts have ruled that, when a person tells the police that he wants to speak to an attorney before speaking to police, the police must stop all questioning.

Note that this right does not depend on the police arresting you or “reading you your rights,” and instead a person can invoke this right anytime the police are questioning him. If the police keep questioning, then they are in violation of the law and any statements provided will be inadmissible at trial.

“The Assistance of Counsel”: The Sixth Amendment Right to an Attorney

In addition to the right to a lawyer that attaches to every person’s right against self-incrimination, the Sixth Amendment of the Constitution also guarantees every person “the Assistance of Counsel for his defense” at trial. As with the Fifth Amendment, the federal courts have ruled that this constitutional guarantee means that a defendant not only has a right to an attorney at a criminal trial but also has a right to an attorney during pre-trial proceedings, starting from the time that formal proceedings are brought against the defendant, such as through an indictment.

What this means is that any statement obtained from a defendant by government agents without his attorney present is inadmissible. But, putting this together with the Fifth Amendment rights, what every person should understand is that they always have a right to an attorney when approached by government agents – regardless of whether they have been read their rights, arrested, or formally charged – and speaking to police or other agents without an attorney can result in self-incrimination.

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.  

In What Circumstances Can a Drug Conviction Be Appealed?

Whether you have been convicted in state or federal court for a drug crime, you already know that serious consequences to your liberty and future can follow, including a long prison sentence, steep fines, and lasting damage to your personal and professional reputation. Which makes appealing your drug conviction a hugely important step to consider. Not all convictions involve circumstances providing grounds for appeal, but below are a few common grounds for appealing a drug crime conviction. Consult with an experienced drug crime appeals attorney to learn more about grounds for appeal in your situation, and do not delay as appeals are often extremely time-sensitive.

Improper Police Action in Detaining or Arresting You

The police must have reasonable suspicion that you have violated the law to stop and detain you, whether on the street or in your car. If they did not, and evidence leading to your conviction was collected as a result, you may have grounds to appeal. In addition, police must have probable cause that you committed a crime before arresting you, and failure to do so can be grounds for appeal.

Failure to Provide You With an Attorney

If the police obtained statements from you leading to your conviction while in custodial interrogation (e.g. where you were detained) prior to reading you your Miranda rights, such statements may be thrown out on appeal. In addition, if you asked for a lawyer but did not receive one, or if the police questioned you without a lawyer after you were indicted, you may have grounds to appeal.

Improper Admission or Denial of Evidence

Convictions in drug crimes are often based on the nature of the evidence admitted against you, either in witness statements or physical or documentary evidence. If a judge improperly allowed the admission of evidence against you in violation of procedural rules or your constitutional rights (such as where the police violate your Fourth Amendment rights with an illegal search), this can be grounds for appeal. Likewise, an improper  failure to allow the admission of evidence that would have helped exculpate you may also be grounds for appeal.

Issues with Your Criminal Jury

A number of grounds for appeal can arise with regard to the jury that handed down your conviction. If prosecutors used improper jury selection techniques – such as selecting jurors based on race – this can be grounds for appeal. Also, if jurors engaged in misconduct by failing to follow the judge’s orders, this can also be grounds for appeal.

A Lack of Sufficient Evidence Against You

While a jury makes the determination of guilt against you, the question of your guilt should not even go to the jury if the prosecutors had not presented evidence such that it would be reasonable for a jury to find that you were guilty beyond a reasonable doubt. An appeals attorney can examine your trial record to determine whether this is the case.

Improper Judge Instructions

If the judge improperly instructed the jurors with regard to how they should analyze the facts presented at your trial in the light of the legal structures, this can be grounds for appeal.

Failure of Your Counsel at Trial

Unfortunately, many attorneys are incompetent or at least fail to provide adequate counsel at trial. If this was the case, you may have grounds for appeal.

Improper Sentence

When a judge hands down a sentence after a conviction that is not supported by the facts or the law, you can appeal the sentence.

Contact a New York Federal Drug Crime Appeals 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 and aggressively pursues appeals on their behalf. To take immediate action to appeal your drug crime conviction, do not hesitate to contact us today to schedule a confidential consultation regarding your matter.

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The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship. Prior results do not guarantee future outcomes.