Extortion as Defined by Statute

18 U.S.C. §1951(a)(2) defines extortion as the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.

Canadian criminal code section 346(1) says "[e]very one commits extortion who, without reasonable justification or excuse and with intent to obtain anything, by threats, accusations, menaces or violence induces or attempts to induce any person, whether or not he is the person threatened, accused or menaced or to whom violence is shown, to do anything or cause anything to be done."

Elements of Extortion

There are essentially three elements to the offense of extortion. (1) Coercion was employed, (2) without reasonable justification or excuse, and (3) to obtain property in the United States or anything in Canada.

Coercion

The coercion element of the extortion statutes includes threats, menaces, violence, fear, accusations, or official right.

Threat

A threat is an exchange. You do this, or else I will do that.

Examples of bad threats:

  1. Pay me, or else I will shoot you.
  2. Pay me, or else I will report you for crime and call the police on you.
  3. Pay me, or else I will arrest you

Examples of allowable threats:

  1. Pay me, or else I will stop working for you, or put you on a "stop list."1
  2. Pay me, or else you cannot have my eggs.
While threats have a bad reputation, a threat is not always wrongful because a person can hold reasonable justification or excuse.

Menaces

A menace is something that threatens to cause evil or harm.

Examples:

  • Pay me, or else I will block entrance to your business.

Violence

Violence is either an act or a threat of an unwanted contact.

Examples:

  1. Inflicting a physical injury and carrying away property.
  2. A threat of violence. Pay me, or else I will inflict a physical injury.

Fear

Fear is a state of mind that something is dangerous and likely to cause pain or injury.

Examples:

  1. Afraid of being punished for crime.
  2. Afraid of being physically injured.

Accusations

An accusation is coercive. An accusation puts a person in fear of a punishment, which is likely to cause pain or injury. The accusation element comes from the common-law crime of blackmail.

Examples:

  1. Pay me, or else I will report you for crime and call the police on you.
  2. Pay me, or else I will prosecute you for crime.

Official Right

At common-law extortion was a "separate public official offense punishing the conduct of public officials who sought personal financial gain under colour of their office. It has since been statutorily expanded in some jurisdictions, such as Canada, to include more familiar forms of blackmail." R v. Davis, [1999] 3 SCR 759.

At common law, extortion was an offense committed by a public official who took 'by colour of his office' money that was not due to him for the performance of his official duties. A demand, or request, by the public official was not an element of the offense. Extortion by the public official was the rough equivalent of what we would now describe as 'taking a bribe.' Evans v. United States, 504 U.S. 255 (1992).

The Supreme Court of the United States said in Evans v. United States, 504 U.S. 255:

As we explained above, our construction of the statute is informed by the common-law tradition from which the term of art was drawn and understood. We hold today that the Government need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts.

So official right is coercive, but for extortion one still needs to show color, or a lack of reasonable justification or excuse.

Examples:

  1. Pay the government, or I will take or withhold an official act and levy your bank account (official right).
  2. Pay me, or I will take or withhold an official act and arrest you (extortion).

Without Reasonable Justification or Excuse

In Canada there is a reasonable justification or excuse clause contained within the extortion statutes. In the United States, the threat needs to be one of force, or under color of official right. The Supreme Court of Canada said in "As this excuse does not affect a determination of culpability, it is procedurally similar to entrapment. Both function as excuses rather than justification in that they concede the wrongfulness of the action but assert that under the circumstances it should not be attributed to the actor." If a person is justified in their action, then they have done nothing wrongful. A person has reasonable justification or excuse if he is not demanding more than is due2 and he is using his or her own power or property to negotiate and not trespassing on other people's power.

Examples of Reasonable Justification or Excuse:

  1. Pay me, or else I will stop working for you and/or put you on a "stop list".
  2. Pay the Government, or else I will take or withhold an official act.
  3. Pay the bank, or else I will take or withhold a banking act and foreclose on your home.
  4. Pay me, or else I will sue you.

Under Color of Official Right

Official right satisfies the coercive element of the extortion statutes. Courts "conclude that the coercive element is provided by the public office itself."3 Color is crossing the line between public and private beneficiaries and therefore the public official is not entitled to the payment. In Wilkie v. Robbins, 551 U.S. 537 (2007) the Supreme Court of the United States said:

The importance of the line between public and private beneficiaries for common law and Hobbs Act extortion is confirmed by our own case law, which is completely barren of an example of extortion under color of official right undertaken for the sole benefit of the Government.

To be convicted of public official extortion, one must also show that the mental intent element of the crime is satisfied. The prosecution must demonstrate that the public official accepted the payment knowing it was made in exchange for influence in official acts.

Conclusion

Extortion mainly depends on what you are negotiating with. A person can negotiate with their own property and power. But a person cannot negotiate with violence or with the Government's property and power, unless the benefit is solely for the Government. The crime at common-law was essentially a trespass on the King's coercion.

1. [R. v. Natarelli, [1967] SCR 539]↩
2. [R. v. Natarelli, [1967] SCR 539]↩
3. [Evans v. United State, [1967] SCR 539]↩
See Town of Newton v. Rumery, 480 U.S. 386.

Written by Joel Allan Sumner