I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

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I have the impression these people just aren’t getting along.

Did you folks know there were three decisions released by the U.S. Supreme Court today?

Somewhere, an individual named Giridhar C. Sekhar and his lawyers are celebrating a victory on a national stage and no one noticed.

I was vaguely aware another case (Sekhar v. United States) was coming, and somewhere along the line got the impression it was a Hobbs Act prosecution– that is, a federal prosecution for extortion.

Well, it’s a case that probably would only interest people who care about white collar criminal defense or the Rule of Lenity (I do, I do!), but, upon reading it, I think I see a few things observing for more general audiences.

First, there’s the odd vote.  Scalia majority opinion, joined by Roberts, Thomas, Ginsburg, Breyer, and Kagan.  Alito opinion, joined by Kennedy and Sotomayor.

Well, I know Scalia is personally fond of the Rule of Lenity, and that’s one of the criminal law issue where I find agreement with him.  And Alito just never seems to want to give a break to a criminal defendant.  But that is not exactly how it turned out.

The question is whether a government lawyer’s opinion is a “property right” from which he or she can be extorted by threats.  A government lawyer was going to provide an opinion that the state pension fund should not invest in a particular investment.  Hearing this was coming, the defendant, who was in management with the subject of the investment, began sending anonymous emails to the lawyer saying the defendant was going to tell the lawyer’s wife about an extra-marital affair if the opinion weren’t changed.

I think we can all agree this is really bad and probably ought to be criminal, but that is not the question.  The question is whether a lawyer’s right to give advice is a “property right” that the defendant can be said to take away via the threat.

Scalia writes, nope:

But what, exactly, would the petitioner have obtained for himself? A right to give his own disinterested legal opinion to his own client free of improper interference? Or perhaps, a right to give the general counsel’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 recommendation,” 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.

That all sounds perfectly reasonable and I would join it.  But Alito (joined by Kennedy and Sotomayor) writes in concurrence to say Scalia described the problem all wrong.  Scalia, Alito writes, should have analyzed the question in terms of whether the opinion was property:

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. …

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 petitioner pursued was not transferrable and therefore is not capable of being “obtained.”  Because I do not believe that the item in question constitutes property, it is unnecessary for me to determine whether or not petitioner sought to obtain it.

Wait a minute, Alito seems to exactly agree with Scalia here.  I mean, both opinions cite Lord Coke’s Institutes for a definition of extortion, for heavens sake.  The business in the opinions about whether the property was transferable seems way into quibbling to me.  What, exactly is the problem? The issue I suggest in the title?

Here’s the opinion.




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