8.142 HOBBS ACT—EXTORTION OR ATTEMPTED EXTORTION BY FORCE
(18 U.S.C. § 1951)
The defendant is charged in [Count _______ of] the indictment with [attempted] extortion by force, violence or fear in violation of Section 1951 of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, the defendant [[induced] [intended to induce]] [name of victim] to part with property by the wrongful use of actual or threatened force, violence, or fear;
Second, the defendant acted with the intent to obtain property;
Third, commerce from one state to another [was] [would have been] affected in some way[.] [; and]
[Fourth, the defendant did something that was a substantial step toward committing the crime.
Mere preparation is not a substantial step toward committing the crime. To constitute a substantial step, a defendant’s act or actions must demonstrate that the crime will take place unless interrupted by independent circumstances.]
For an instruction on extortion or attempted extortion by nonviolent threat, see Instruction 8.142A (Hobbs Act—Extortion or Attempted Extortion by Nonviolent Threat).
Only a de minimis effect on interstate commerce is required to establish jurisdiction under the Hobbs Act, and the effect need only be probable or potential, not actual. United States v. Lynch, 437 F.3d 902, 908-09 (9th Cir.2006) (en banc). The interstate nexus may arise from either direct or indirect effects on interstate commerce. Id. at 909-10. Where the effects are only indirect it may be appropriate to measure the adequacy of proof of interstate nexus by applying the test articulated in United States v. Collins, 40 F.3d 95, 100 (5th Cir.1994).
"Property" under the Hobbs Act is not limited to tangible things; it includes the right to make business decisions and to solicit business free from coercion. United States v. Hoelker, 765 F.2d 1422, 1425 (9th Cir.1985) (citing United States v. Zemek, 634 F.2d 1159, 1174 (9th Cir.1980)). The Hobbs Act is not limited to lawful property and includes contraband. United States v. Cortes, 732 F.3d 1078, 1093 (9th Cir. 2013).
Actual or threatened force standing alone does not violate the statute. "We conclude that Congress did not intend to create a freestanding physical violence offense in the Hobbs Act. It did intend to forbid acts or threats of physical violence in furtherance of a plan or purpose to engage in what the statute refers to as robbery or extortion (and related attempts or conspiracies)." Scheidler v. Nat’l Org. for Women, Inc. 547 U.S. 9, 23 (2006).
A defendant’s claim of right to the property is not a defense. "‘Congress meant to punish as extortion any effort to obtain property by inherently wrongful means, such as force or threats of force . . . regardless of the defendant’s claim of right to the property . . . .’" United States v. Daane, 475 F.3d 1114, 1120 (9th Cir. 2007) (quoting with approval from United States v. Zappola, 677 F.2d 264, 268-69 (2d Cir. 1982)). There is an exception to this proposition, but it is confined to cases involving certain types of labor union activity. Id. at 1119-20.
The bracketed language stating a fourth element applies to attempt to engage in extortion by force. Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime. United States v. Hofus, 598 F.3d 1171, 1176 (9th Cir.2010).