8.143 HOBBS ACT—EXTORTION OR ATTEMPTED EXTORTION UNDER COLOR OF OFFICIAL RIGHT (18 U.S.C. § 1951)
The defendant is charged in [Count _______ of] the indictment with [attempted] extortion under color of official right 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 was a public official;
Second, the defendant [[obtained] [intended to obtain]] [specify property] that the defendant knew [he] [she] was not entitled to receive;
[Third, the defendant knew that the [specify property] [[was] [would be]] given in return for [taking] [withholding] some official action; [and]]
[Third, the defendant knew that the [specify property] [[was] [would be]] given in return for an express promise to perform a particular official action; and]
Fourth, commerce or the movement of an article or commodity in commerce from one state to another [was] [would have been] affected in some way[.] [; and]
[Fifth, 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.]
[The acceptance by a public official of a campaign contribution does not, in itself, constitute a violation of law even though the donor has business pending before the official. However, if a public official demands or accepts [money] [property] [some valuable right] in exchange for a specific requested exercise of official power, such a demand or acceptance does constitute a violation regardless of whether the payment is made in the form of a campaign contribution.]
If the defendant is not a public official, then this instruction should be modified to include a requirement that the government prove that the defendant either conspired with a public official or aided and abetted a public official. United States v. McFall, 558 F.3d 951, 960 (9th Cir.2009). A Hobbs Act conspiracy may exist even if some members of the conspiracy are not public officials and thus cannot complete the offense. Ocasio v. United States, 136 S.Ct. 1423, 1429-32 (2016). The object of the conspiracy need not be to get property from a person outside the conspiracy; it is sufficient that the property comes from another member of the conspiracy. Id. at 1434-35.
When the property is not a campaign contribution, the government need only show that the public official obtained payment to which he or she was not entitled knowing that the payment was made in exchange for some official act. See United States v. Kincaid-Chauncey, 556 F.3d 923, 937-38 (9th Cir.2009). In such a case the first version of the third element should be used and the final paragraph should not be included.
The second version of the third element, and the final paragraph should be included in cases involving an alleged campaign contribution. See McCormick v. United States, 500 U.S. 257 (1991); Kincaid-Chauncey, 556 F.3d at 936. The express promise need not actually be carried out. It is sufficient if the promise to act is given in exchange for the property. See Evans v. United States, 504 U.S. 255, 267 (1992).
The bracketed language stating a fifth element applies to attempt to engage in extortion under color of official right. 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).