Opinion
Nos. 04 Civ. 1500 (TPG)(ts), 98 Cr. 108, 98 Cr. 412.
April 26, 2005
OPINION
On February 20, 2004 petitioner, represented by an attorney, filed a motion under 28 U.S.C. § 2255, and, in the alternative, a petition under 28 U.S.C. § 2241. On April 20, 2004 an amended application was filed.
Since petitioner is seeking to attack a federal conviction, this proceeding should be treated as a motion under 28 U.S.C. § 2255. Under Rule 4(b) of the Rules Governing Section 2255 Proceedings, the court has examined the motion and has determined that it should be summarily dismissed.
At the outset, it must be determined whether this proceeding is barred by § 2255's one-year limitation. The statute states that the one-year period of limitation runs from the latest of certain dates. The dates relevant to the present case are the date when the conviction becomes final, and the date "on which the right asserted was initially recognized by the Supreme Court." Petitioner's conviction became final in the year 2000. This was about four years before the filing of the present proceeding. However, it appears from the petition that it is based on an alleged new rule of law announced by the Supreme Court on February 26, 2003 inScheidler v. National Organization for Women, 537 U.S. 393 (2003). The present proceeding was filed within one year of that decision.
The court will examine the issue of whether petitioner is indeed relying on a right "initially recognized" by the Supreme Court in Scheidler, and, if so, whether such right was violated.
The Criminal Proceedings
Petitioner was charged in two indictments — 98 Cr. 108 and 98 Cr. 412. The first was originally before Judge Griesa and the second was before Judge Keenan. On December 28, 1998 Judge Keenan took the guilty plea of petitioner in both cases. Petitioner pled guilty to conspiracy to commit murder in violation of 18 U.S.C. § 1958, as charged in 98 Cr. 411. He also pled guilty to conspiring to commit extortion in violation of 18 U.S.C. § 1951(b)(2), as charged in 98 Cr. 108.
On the murder conspiracy charge petitioner made the following admission:
THE DEFENDANT: Between August 1997 and October 1997, I agreed with members of the Latin Kings that we would arrange to have Eric Fontanez killed in order to prevent him from testifying against me.
I traveled from New Jersey to New York on several occasions during that time to meet with members of the Latin Kings, including individuals known to me as King Jay, King Bugsy, King EZ.
I told members of the Latin Kings that they would receive money or property for arranging for the hit on Fontanez. I gave members of the Latin Kings cash on one occasion during this period.
The admission on the extortion conspiracy was as follows:
THE DEFENDANT: On February 17, 1997, I conspired with Eric Fontanez and Jose Vasquez to commit an armed extortion at North Shore Environmental Solutions in Glen Cove.
THE COURT: I am sorry?
THE DEFENDANT: In Glen Cove, Long Island. I picked them up in the Bronx and drove them to Long Island. I provided them with a gun to use during the extortion by sending Fontanez and Vasquez into North Shore Environmental Solutions. I was trying to get the owner to pay me money he owed me.
In the present petition, the claim is that what petitioner admitted on the extortion charge was not in fact extortion, as allegedly now defined by the Supreme Court in the Scheidler case.
On June 18, 1999 petitioner moved to withdraw his guilty plea. This motion was based on various reasons having nothing to do with the definition of extortion. This motion was denied by Judge Keenan on July 27, 1999. On December 20, 1999 Judge Keenan sentenced petitioner to 144 months in prison on both charges, the sentences to be served concurrently.
Petitioner appealed. His principal argument was that he should have been allowed to withdraw his guilty plea. Again, there was no argument about the definition of extortion. The Court of Appeals affirmed the conviction on December 11, 2000. United States v. Barbaro, 242 F.3d 368.
Discussion
The extortion conspiracy charge against petitioner was brought under 18 U.S.C. § 1951, known as the "Hobbs Act." Petitioner's argument about the Hobbs Act and the Scheidler case is as follows:
Specifically, petitioner's conviction of 18 U.S.C. § 1951 (the "Hobbs Act") did not have any factual basis, pursuant to a new interpretation of that provision in the Supreme Court's February 26, 2003, opinion in Scheidler v. National Organization for Women, 537 U.S. 393, 123 S.Ct. 1057 (2003). In Scheidler, the Court held, inter alia, that a Hobbs Act conviction must have involved an attempt to obtain "property." Hobbs Act convictions must also be based on attempt to obtain property to which the alleged perpetrator was not otherwise entitled, lest the accused be entitled to a "claim of right" defense.
Petitioner goes on to argue that he never attempted to obtain any property, although he was "entitled to any property he could be deemed to have attempted to obtain." Petitioner further alleges that he hoped that he could get the money owed him, although this was never communicated to the victims. He told his alleged co-conspirators, who were sent into the establishment with a gun, that the victims were simply "to pay their debts in general," and that the victims were never told to pay a debt to the petitioner or to any of petitioner's representatives. Most of this involves unsworn statements in the motion, which are contrary to what petitioner actually admitted in his guilty plea allocution, quoted earlier in this opinion.
The Scheidler decision involved a civil RICO action, in which certain of the alleged predicate acts were violations of the Hobbs Act. It was claimed that the defendants had committed extortion in violation of the Hobbs Act when they engaged in certain activities designed to frustrate the operation of abortion clinics. The Supreme Court, relying on specific language of the Hobbs Act that extortion involves "the obtaining of property from another," held that the activities in question did not involve such obtaining of property from the abortion clinic operators. Id. at 400-402. The Court further contrasted extortion with the crime of coercion, the latter crime being the use of force or threat of force to restrict another's freedom of action. Id. at 405-406.
It is clear that the Supreme Court in Scheidler did not announce any new rule of law applicable to petitioner's extortion conspiracy case or any new definition of extortion applicable to his case. The Supreme Court said nothing to indicate that the crime to which petitioner pled guilty was not extortion and was instead the crime of coercion. It is true that the Supreme Court referred to a 1934 New York decision for the proposition that extortion requires an intent "to obtain that which in justice and equity the party is not entitled to receive." Id. at 404, citing People v. Cuddihy, 151 Misc. 318, 324, 271 N.Y.S. 450, 456 (1934). But this was part of a discussion of the fact that extortion involves not only the deprivation of property but the acquisition or obtaining of property. The New York decision did indeed contain the quoted language, but this language was part of a discussion by the New York court of the simple fact that the property or money extorted must belong to the victim.
The conclusion is that petitioner's present application does not assert a right "initially recognized by the Supreme Court" inScheidler. Therefore petitioner's one-year time to file his § 2255 motion did not run from February 26, 2003, but from the year 2000 when his conviction became final. His motion is therefore time-barred.
However, it is also clear that the motion is without merit. What petitioner admitted in his guilty plea was extortion within the meaning of the Hobbs Act. The definition in that statute is contained in 18 U.S.C. 1951(b)(2);
(2) The term "extortion" means 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.
Petitioner admitted providing his co-conspirators with a gun to use during the extortion, which involved trying to get the owner of North Shore to pay money he owed petitioner. Thus, there was a conspiracy to obtain property (i.e., money) from North Shore with the use of a gun. Petitioner admitted that this was intended to be extortion. The court is relying, as it should, on the admission at the guilty plea allocution, not on unsworn statements of the attorney in the petition.
The collection of a debt by the threat or use of violence or physical injury is surely within the statutory definition of extortion. Physical injury and violence are inherently wrongful and to threaten or use them in order to obtain property is what is made criminal under the Hobbs Act. U.S. v. Jackson, 18 F.3d 55, 69 (2d Cir. 1999). On the other hand, a threat to cause economic loss is not inherently wrongful, but becomes wrongful only when it is used to obtain property to which the threatener is not entitled. Id. at 70.
Petitioner, of course, did not admit the mere threat of economic harm, but admitted conspiracy to commit extortion by the use of a gun. This was a violation of the Hobbs Act.
The motion is denied and dismissed.
SO ORDERED.