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Sekhar v. United States

Facts of the Case

Provided by Oyez

In 2008 the General Counsel for the Office of the State Comptroller of New York advised against investing in a fund managed by FA Technology Ventures. The investment would have given FA Technology millions in service fees. The General Counsel received an anonymous email of "blackballing a recommendation on a fund" and threatened to disclose the General Counsel's extramarital affair to his wife, to the Comptroller, and to others if he did not change his recommendation within 36 hours. On the advice of law enforcement, the General Counsel asked for more time, which the individual granted. The FBI traced the emails to Giridahr Sekhar, a managing partner of FA Technology. Sekhar later admitted to sending the emails.

Sekhar was charged with one account of extortion and six counts of interstate transmission of extortionate threats under the Hobbs Act. The Hobbs Act prohibits obtaining property by threats. Sekhar moved to dismiss, arguing that the General Counsel's recommendation was not property. The district court denied the motion to dismiss, holding that the General Counsel's right to make professional decisions without outside influence was intangible personal property. Sekhar was convicted on six of the seven counts and sentenced to 15 months in jail. The U.S. Court of Appeals for the Second Circuit affirmed.

Questions

  1. Is the "recommendation" of an attorney, who is a salaried employee of a governmental agency, intangible property that can be the subject of an extortion attempt under the Hobbs Act?

Conclusions

  1. No. Justice Antonin Scalia delivered the opinion for the 9-0 majority. The Court held that attempting to compel a person to issue a favorable recommendation does not amount to extortion under the Hobbs Act. The Court determined that the right of the General Counsel to issue a professional recommendation is not transferrable, and therefore lacks an essential characteristic of extorted property.

    Justice Samuel A. Alito, Jr. wrote an opinion concurring in the judgment in which he argued that the key question was whether the General Counsel’s recommendation constituted property. As internal recommendations are not property, the issue of transferability became irrelevant. Justice Anthony M. Kennedy and Justice Sonia Sotomayor joined the concurrence in the judgment.