PHILADELPHIA (CN) – The 3rd Circuit tossed attempted extortion and conspiracy charges against a failed Jersey City, N.J. mayoral candidate indicted in the wake of a sweeping New Jersey anti-corruption sting, noting that allowing the charges could have set a dangerous precedent.
The 2009 sting, code-named “Bid Rig III,” netted a menagerie of local politicians, including failed Jersey City mayoral candidate Louis Manzo and his brother and campaign manager, Ronald Manzo, both of whom were charged in a six-count indictment that included three counts of attempted extortion under the Hobbs Act.
The Manzos filed a pretrial motion for dismissal of the conspiracy and attempted extortion charges, arguing that since Louis was merely a candidate and not an elected official, the government couldn’t prove the he acted “under color of official right,” a requirement for a Hobbs Act extortion offense when there is an absence of “threatened force, violence or fear.”
Judge Jose Linares for the U.S. District Court of New Jersey agreed.
The indictment accused the Manzos of accepting more than $27,000 from a FBI informant who told the brothers he was a developer looking for expedited approval of his building projects.
But even if the accusation were true, Linares found that the pay-off was “not clearly within the scope of the Hobbs Act.”
The 3rd Circuit approved of Judge Linares’ application of the rule of lenity, which instructs judges to interpret ambiguous statutory language in a defendant’s favor.
Writing for a three-judge panel, Circuit Judge D. Michael Fisher traced a history of confusion over the ambiguity of the Hobbes Act phrase “under color of official light.” Fisher said the Hobbs Act does not clearly define the meaning of the phrase “under color of official right,” noting that one judge went so far as to call the phrase unconstitutionally vague.
But Fisher concluded that extortion “committed ‘under the color of official right’ must be action in an official capacity or a pretended act in an official capacity, which means one pretends to hold an office that he in fact does not. Therefore, we conclude that because the Manzos neither acted nor pretended to act in an official capacity, their conduct was not ‘under color of official right.'”
The government claimed that the “under color of official right” requirement did not apply, because the Manzos acted with “implicit coercion,” since Louis Manzo agreed to use his official powers as mayor after being elected.
“This argument is unpersuasive,” Fisher wrote. “The Manzos never acted ‘under color of official right’ and never used force. Therefore, their actions were not of the coercive type targeted by Congress in the Hobbs Act.”
The brothers did not argue with the government’s contention that, had Louis Manzo been elected, having taken the money from the “developer” could have constituted actual extortion under the Act. And, had he been elected, the charges of attempted extortion and conspiracy to extort could have stood, the Judge wrote.
But the fact that Manzo lost the election precluded those charges, Fisher wrote, noting that the Hobbs Act does not apply to private people who are candidates for public office.
And extending the Act’s reach could have dangerous consequences, Fisher said.
“Conspiracy is a powerful tool that is often well-utilized by the government,” Fisher wrote. But “its history exemplifies ‘the tendency of a principal to expand itself to the limit of its logic,'” Fisher wrote, quoting another judge in a 1949 ruling, who in turn quoted the author of the book “The Nature of the Judicial Process.”
“To sustain an ‘under color of official right’ Hobbs Act charge here would create a ‘legal alchemy with the power to transform any gap in the facts into a cohesive extortion charge,” Fisher wrote, quoting the District Court’s ruling.
Fisher did not dismiss the mail fraud and bribery charges against Louis Manzo.