Federal criminal statutes should be narrowly construed so that individuals are only punished when their conduct plainly and unmistakably falls within the scope of the law, even if that conduct is reprehensible. In 2009, the general counsel of New York comptroller’s office, acting as sole trustee of the state’s employee pension fund, recommended against investment in a fund managed by FA Technology Ventures. Shortly thereafter, general counsel Luke Bierman received a series of anonymous emails from Petitioner, a managing partner of FA Technology, demanding that either Bierman recommend the fund or have allegations of an extramarital affair exposed to the public. Petitioner was indicted in federal court and charged with violating the Hobbs Act, which prohibits extortion affecting interstate commerce, conduct including “attempts to obtain property from another … induced by wrongful use of fear and threatened fear.” The crucial issues were whether the general counsel’s right to make a recommendation to approve the fund constituted “property” within the meaning of the Act and whether Petitioner’s conduct was an “attempt to obtain property.” After the district court instructed the jury that property includes “any valuable intangible right considered as a source or element of wealth,” Petitioner was convicted. The appeals court affirmed the holding in contravention of the Supreme Court’s statutory interpretation principles and substantive jurisprudence. Cato has joined the National Association of Criminal Defense Lawyers, as amicus, urging the Supreme Court to resolve a perpetual issue which arises whenever Congress enacts a statute and federal prosecutors stretch the meaning of that statute’s language to conduct Congress never intended to punish and expanding federal prosecutorial power into areas traditionally regulated by the states. We argue that the Court has repeatedly applied two firmly established principles of statutory interpretation to preclude unwarranted federal criminal prosecutions and to curb the over-federalization of criminal laws: The Court requires “clear and definite” statutory language before it will choose the harsher of two plausible readings (the rule of lenity); and, it follows a federal non-intrusion rule which, absent a clear statement of Congressional intent, counsels against the federal government’s intrusion into areas of criminal law enforcement reserved for the states. In this case, the federal prosecutors and lower courts exceeded those limits. The statutory provision on “obtaining of property from another” cannot be construed consistently with either the Court’s jurisprudence or the Act’s legislative history and still be read to encompass an effort to influence a non-binding recommendation by a salaried attorney in a state agency. As federal prosecutors seek to expand their power beyond statutory limits, the Supreme Court should act to safeguard essential principles of federalism and liberty and to protect individuals who, while not entirely innocent, were not intended to be punished under a particular statute.
Featuring the author Betty Medsger; with comments by Julian Sanchez, Research fellow, Cato Institute; moderated by Gene Healy, Vice president, Cato Institute.
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