Ocasio v. United States, which was argued today,* presents a real puzzler of conspiracy law, though after today's argument I'm not sure the Court sees it that way. Stated at the highest level of abstraction, the question in Ocasio is this. If Statute Y makes it a crime for a person to do X to another person, and Person 1 and Person 2 agree that Person 2 is to do X to Person 1, and one or both persons commit an overt act in furtherance of their agreement, have Persons 1 and 2 conspired to violate Statute Y? They have clearly agreed that Person 2 will violate Statute Y, but has Person 1 agreed with Person 2 to violate Statute Y? Or has he only agreed to be a victim of Person 2's violation of Statute Y? The Court seemed today to think the answer is the former.
Turning to the specific facts and law of this case, the Hobbs Act makes it a crime to "affect commerce . . . by . . . extortion," and defines "extortion" as "the obtaining of property of another, with his consent . . . under color of official right." The Court has interpreted that language to include public officials accepting bribes. In Ocasio, the Court granted certiorari to consider when, if ever, an agreement between a bribe-payor and a bribed public official to give and take bribes is a conspiracy to commit Hobbs Act extortion. Ocasio, a police officer who took bribes from owners of a body shop in return for steering wrecked cars their way, argues the answer to that question is never, because the bribe-payors have not conspired to obtain property from another; they've conspired to transfer their own property. As the government sees it, Ocasio and the body shop owners agreed and intended that Ocasio would obtain property from persons other than himself (the body shop owners), and thus, conspired to commit Hobbs Act extortion.
Part of what makes this case difficult is that there isn't really any helpful statutory text to go on. Ocasio claims there is; in his briefs and in today's argument, he tried very hard to make this case about the "obtaining of property of another" language in the Hobbs Act. That didn't really wash at oral argument because it's besides the real point of the case. There's no question that Ocasio, and his putative co-conspirators, intended a violation of the Hobbs Act to occur - that is, that they intended that Ocasio obtain property from persons other than himself under color of official right. The question is whether the intended violation must be a violation from the perspective of each of the co-conspirators - that is, whether the body shop owners had to intend that money be obtained from persons other than themselves - or just from the perspective of Ocasio, in which case the conspirators need only have intended that money be obtained from persons other than Ocasio. That's a question of conspiracy law, and on this point, the conspiracy statute, and conspiracy doctrine, are opaque.
The general conspiracy statute under which Ocasio was convicted makes it a crime for two or more persons to conspire to commit a federal crime, so long as one of the conspirators commits an act in furtherance of the conspiracy. That's all it says. On the one hand, the Court has held this means that not every conspirator need intend to personally commit every element of the substantive crime, or even be capable of doing so. On the other hand, each conspirator, at least at common law, must specifically intend for the commission of each element of the substantive crime.
What remains surprisingly unsettled is whether conspirators need only intend for a crime to be committed from the perspective of one of the co-conspirators, or more broadly, from the perspective of the state, or whether they must intend each element from their perspective for there to be a conspiracy. For example, murder is the wrongful killing of another; suicide is the killing of oneself. If someone hires a hitman to kill her, has she conspired with the hitman to commit a murder? She's certainly conspired for a murder to be committed from the perspective of the state (in whose eyes the hitman is supposed to murder another) or from the perspective of the hitman. She intends for a murder to happen and for the hitman to commit one. But she hasn't herself intended to kill someone other than herself; from her perspective, she intends a suicide, not a murder of another. It's no real answer to say, as the government did in its briefs and at argument, that since each conspirator need not be capable of performing each element of a crime, a willing victim of a crime who logically cannot commit a crime with relation to themselves is therefore a conspirator. A willing victim of a crime that requires some act towards another is not only unable to commit that crime with relation to themselves; they do not even intend for some criminal act to happen to someone other than themselves. I can see arguments here either way - on the one hand, it seems very strange to punish someone who contracts to kill herself as if she contracted to kill someone else, on the other, it may not be so strange given that she's intended for the commission of a murder - but it's certainly a very hard problem.
The Justices, however, who engaged with this problem didn't seem to find it very hard. Not a single Justice vocally bought into Ocasio's central point - that there was no conspiracy to obtain property from another because the persons from whom property was obtained were conspirators - and several Justices clearly rejected it. Justice Kagan repeatedly insisted that Ocasio and the body-shop owners had conspired that Ocasio would obtain money from another, and that "there's no reason under standard conspiracy law that we would use the perspective of the agreer [the body shop owners] rather than the perspective of the perpetrator [Ocasio]." Justice Sotomayor echoed these points. Justice Alito suggested that Ocasio's case was no different from the Court's old Mann Act conspiracy cases, in which women were convicted of conspiring with others to "transport any woman," i.e., themselves, across state lines for purposes of prostitution. Ethan Davis, counsel for Ocasio, tried to argue that "any woman" was different from "another," which seems quite right ("any woman" does not necessarily exclude self-transporters, while "obtaining of property of another" does exclude obtaining money from oneself), but that didn't convince Justice Alito, who replied that "any woman" subsumed "another." Justice Breyer, for his part, said that once the Court took the step of interpreting extortion to include taking bribes, it followed that conspiracy to extort would include schemes to give and receive bribes.
This isn't to say that Ocasio entirely lacked for support today. Justice Scalia, who dissented in the Court's decision holding that Hobbs Act extortion included accepting bribes, continues to believe that that decision is wrong and repeatedly suggested that the Court shouldn't extend it any further. Justice Kennedy expressed some concerns about the federalization of state bribery law, and the possibility that on the government's view, every willing giving and taking of a bribe would become a conspiracy to extort. Allon Kedem, assistant to the Solicitor General, attempted to allay these concerns by proposing an "active participation" requirement, under which more than merely agreeing to give a bribe would be needed to make out a conspiracy, but several Justices (Kagan, Scalia) questioned how such a requirement could be squared with traditional conspiracy law. Kedem claimed, in response, that something like it was in the old Mann Act conspiracy cases. Justice Breyer, for his part, seemed to accept that something like an active-participation test was inevitable once the Court took the step of conflating extortion with bribe-taking. Chief Justice Roberts was concerned that active participation was never charged to the jury, and was very interested in the government's claim that, even if the jury instructions on which Ocasio could be convicted for conspiring with the body shop owners were improper, there was sufficient evidence to convict Ocasio because he conspired with other police officers to take bribes. That interest might suggest that Roberts is skeptical of the government's defense of the jury instructions, as might several questions he put to Davis, which looked to me like attempts to fill in gaps in Ocasio's argument.
Prediction: Ocasio may have anywhere from one (Scalia) to four (Scalia, Roberts, Kennedy, Thomas) votes, and probably has at least two or three, but I struggle to see where he gets his majority. I do think the Court will be forced to accept some version of the government's active-participation requirement, lest it turn every giving and taking of a bribe into a conspiracy to extort.
* I should note that I'm recapping Ocasio from a transcript which is unusually rocky - much more so than first-day transcripts of oral arguments at the Court have been in the past. Some of the more fun and/or notable mistakes in this transcript: "old English . . . cases" got rendered as "Olde English . . . cases" (Olde English is a brand of cheap malt liquor), while Ocasio's counsel is transcribed at one point as saying "I think going back to how that kind of conversation would happen in ordinary English is a way to severability 80's not plausible to read the statute like that." One imagines some sort of VH1 show on 1980s severability law.