Racketeering Charges In Sniper Case?

Edward Kennedy Jr., kisses the casket of his father at the Roman Catholic Funeral Mass for Sen. Edward M. Kennedy at Our Lady of Perpetual Help Basilica in Boston, Saturday, Aug. 29, 2009.
AP Photo/Alex Brandon
The Hobbs Anti-Racketeering Act of 1946, the Sword of Damocles now hanging over the heads of sniper suspects John Allen Muhammad and John Lee Malvo, is a little-known but widely-used part of the arsenal of federal criminal law. It prohibits extortion, attempted extortion, or conspiracies to commit extortion affecting interstate commerce "in any way or degree."

It has been described, with a fairly startling degree of consistency among lawyers who have come across it in their practice, as an "extraordinarily broad" statute aimed at an enormous range of conduct. When it was enacted shortly after the Second World War in order to combat racketeering and extortion — the Act was modeled after New York's state-of-the-art law in this area — Hobbs federalized the long-standing state crime of extortion. In the years since then, however, its scope has been expanded even further to cover public corruption cases and even, perhaps, threats against medical clinics that provide abortion services to women.

Indeed, the United States Supreme Court in early December will hear arguments in a case in which the Hobbs Act was used, successfully so far, against abortion opponents whose threats, a lower court found, interfered with the operations of two such clinics. The federal government, not originally a part of the clinic case, has filed a friend-of-the-court brief in that case arguing in favor of a broad interpretation of the Hobbs Act. At the same time, the United States concedes that the statute originally was designed to "protect the right of citizens of this country to market their products without any interference from lawless bandits."

It will not be the first time by a long shot that the High Court has deigned to interpret the statute. In 1992, for example, the Court ruled by a 6-3 margin that a county commissioner in Georgia could be convicted under the Hobbs Act even if he did not demand or request a payoff. That decision prompted Justice Clarence Thomas, in dissent, to call the statute an "engine for a stunning expansion of federal criminal justification into a field traditionally policed by state and local laws." My guess is that Justice Thomas will not have nearly as much heartburn about the intended use of the Act in the sniper case.

If you are wondering what in the world a federal anti-extortion statute would have to do with the sniper case, you are not alone. It's a bit of a real-world stretch by the feds to say that Muhammad and Malvo are extortionists, but prosecutors do so, at least for now, by claiming that the suspects crossed into Hobbs Act territory when they allegedly demanded a payment of $10 million in order to prevent additional sniper attacks. Without that purported demand, it is very likely that federal jurisdiction over the men would be even more tenuous than it now appears to be. And the irony, of course, is that investigators never believed that extortion was a central motive in the deadly attacks in the first place.

In the suspected snipers' case, then, the Hobbs Act serves as a serviceable bridge between the alleged conduct of the snipers and federal law. Since federal prosecutors could not bring federal murder charges against the men — those charges are typically reserved for the murders of federal law enforcement officials killed during the performance of their duties — the Hobbs Act otherwise gets the men into federal court. And, from there, other federal charges cobbled together with alleged Hobbs conduct could mean the death penalty for Muhammad if he is convicted and if a jury unanimously recommends a death sentence over life without the possibility of early release. If Malvo really is 17 years old, he cannot be executed under federal law because it prohibits capital sentences for juvenile offenders.

If federal prosecutors decide to try the suspects first in federal court, defense attorneys for Muhammad and Malvo likely will challenge the law on both factual and legal grounds. It's hard to say now how their factual defense will pan out since no one has yet shown me the evidence. Obviously, though, if it turns out that the men did not write that $10 million demand note, they'll have a decent chance of getting out from under Hobbs' shadow. But even if the men didn't write the note, they'll be in trouble under Hobbs if they asked (read: extorted) for anything in their correspondence or telephone calls with authorities.

As for a possible legal defense under Hobbs, all you really need to know is that the government's manual for prosecutors advises them not to use Hobbs too much lest it foster "judicial animosity." To me anyway, that cautionary advice means that the government knows it has a winning hand in Hobbs but doesn't like to play it too often.

By Andrew Cohen