United States v. Manzo

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______

No. 10-2489
______

UNITED STATES OF AMERICA,
Appellant

v.

LOUIS MANZO; RONALD MANZO
______

On Appeal from the United States District Court
for the District of New Jersey
(D.C. Nos. 2-09-cr-00759-001 and 002)
District Judge: Honorable Jose L. Linares
______

Argued January 11, 2011
Before: RENDELL, AMBRO and FISHER, Circuit Judges.

(Filed: February 17, 2011)

Mark E. Coyne, Esq.
Office of United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102
Glenn J. Moramarco, Esq. (Argued)
Office of United States Attorney
Camden Federal Building & Courthouse
401 Market Street, 4th Floor
P.O. Box 2098
Camden, NJ 08101
Counsel for Appellant

John D. Lynch, Esq. (Argued)
1814 Kennedy Boulevard
Union City, NJ 07087
Counsel for Appellee, Louis Manzo

Samuel R. DeLuca, Esq.
George T. Taite, Esq.
De Luca & Taite
3451 Kennedy Boulevard
Jersey City, NJ 07307
Counsel for Appellee, Ronald Manzo

______

OPINION OF THE COURT
______

FISHER, Circuit Judge.

Defendants Louis Manzo (“Louis”) and Ronald Manzo
(“Ronald”) were indicted as the result of a federal investigation
into public corruption and money laundering in Hudson County,

2
New Jersey. They were charged with, inter alia, conspiracy to
commit extortion under color of official right in violation of 18
U.S.C. § 1951(a) (the “Hobbs Act”) and attempted extortion
under color of official right in violation of the Hobbs Act. The
District Court dismissed the conspiracy and attempt charges
because it concluded that neither Louis, an unsuccessful mayoral
candidate, nor Ronald, his brother and campaign manager, acted
“under color of official right.” On appeal, the government
argues that the conduct is within the scope of the Hobbs Act
based on the principles underlying the inchoate crimes of
attempt and conspiracy. For the reasons stated herein, we will
affirm the judgment of the District Court. Specifically, we hold
that acting “under color of official right” is a required element
of an extortion Hobbs Act offense, inchoate or substantive,
when that offense does not involve threatened force, violence or
fear.

I.

The parties are in basic agreement on the facts. In May
2006, Solomen Dwek was arrested by the Federal Bureau of
Investigation (“FBI”) on bank fraud charges. He subsequently
agreed to become a cooperating witness for the FBI, assisting
with an investigation into public corruption. In that role, Dwek
posed as a real estate developer who was looking for assistance
expediting his development projects through local government
processes. Dwek surreptitiously recorded many of the meetings
he attended. The investigation, dubbed “Bid Rig III,” resulted in
the arrest of numerous Jersey City, New Jersey politicians on

3
July 23, 2009. 1 Among those arrested were Louis and Ronald
Manzo (collectively, the “Manzos”).

Louis was an unsuccessful Jersey City mayoral candidate
in the election held on May 12, 2009. Although he had
previously held public office in other capacities, he was not a
public official at the relevant time here and did not pretend to be
one. Ronald is the brother of Louis, and acted as his campaign
manager and political advisor for the 2009 mayoral election.

Two individuals who previously accepted corrupt
payments from Dwek, Edward Cheatam and Maher Khalil, 2
suggested that Dwek meet with Louis to protect his real estate
development interests in Jersey City. Accordingly, the Manzos,
Dwek and Cheatam participated in a series of six meetings,
spanning from February 2009 to April 2009. Over the course of
those meetings, Dwek agreed to make cash payments and illicit
contributions to Louis’s campaign in exchange for his future
official assistance, action and influence. The Manzos accepted
three cash payments from Dwek totaling $27,500 prior to the
election. Dwek also agreed to pay the Manzos an additional
$17,500 after Louis was elected, in exchange for Louis’s official
assistance as mayor.

1
We note that several Bid Rig III defendants have pled
guilty to similar charges. Other Bid Rig III cases have been
stayed by the District Court pending the outcome of this appeal.
2
Cheatam served as a Commissioner on the Jersey City
Housing Authority and was also the affirmative action officer
for Hudson County. Khalil was an employee of the Jersey City
Department of Health and Human Services.

4
 The payments were made in furtherance of two separate
schemes. First, Louis agreed to expedite approvals of a
particular Jersey City real estate development project known as
the “Garfield Development.” In exchange, Dwek paid the
Manzos $20,000 before the election and promised to pay an
additional $10,000 after Louis was elected. Second, Louis
agreed to promote Khalil in exchange for a payment of $7,500
before the election and the promise of an additional $7,500 after
the election.

The election was held on May 12, 2009, and Louis
received 26% of the vote, finishing second in a five-candidate
field. Mayor Jerramiah Healy received 53% of the vote and was
re-elected. Because Louis was not elected mayor, he did not
receive either of the two post-election payments that were
agreed upon in furtherance of the two schemes.

On October 6, 2009, a grand jury in the District of New
Jersey returned a six-count indictment, which charged the
Manzos with: (1) one count of conspiracy to commit extortion
under color of official right in violation of the Hobbs Act;
(2) three counts of attempted extortion under color of official
right in violation of the Hobbs Act; and (3) two counts of travel
in interstate commerce to promote, carry on and facilitate
bribery in violation of 18 U.S.C. §§ 1952(a)(3), 2. On April 20,
2010, the grand jury returned a superseding indictment with a
seventh count, charging the Manzos with mail fraud in violation
of 18 U.S.C. § 1341.

Louis Manzo filed a pretrial motion seeking dismissal of
Counts One through Four, which charged the Hobbs Act

5
conspiracy and attempt offenses. For the government to prove a
violation of the Hobbs Act using the “under color of official
right” theory, it “need only show that a public official has
obtained a payment to which he was not entitled, knowing that
the payment was made in return for official acts.” Evans v.
United States, 504 U.S. 255, 268 (1992). Louis argued that the
government could not meet this burden because at all relevant
times he was merely a candidate and did not act “under color of
official right” as a public official. Ronald joined in the motion.

The District Court granted the Manzos’ motion seeking
dismissal of the Hobbs Act attempt and conspiracy charges. It
applied the rule of lenity, and held that the conduct was “not
clearly within the scope of the Hobbs Act even if only
conspiracy or attempt [was] charged.” United States v. Manzo,
714 F. Supp. 2d 486, 496 (D.N.J. 2010). Specifically, the
District Court held that because neither Louis nor Ronald held
public office, they did not act “under color of official right.” Id.
at 500. It therefore dismissed the conspiracy and attempt
charges because the indictment insufficiently alleged the
elements of the offense intended to be charged. The
government timely appealed.

II.

The District Court had subject matter jurisdiction under
18 U.S.C. § 3231. We have jurisdiction under 18 U.S.C.
§ 3731.

We have plenary review over the sufficiency of an
indictment to charge an offense. United States v. Yusuf, 536

6
F.3d 178, 184 (3d Cir. 2008). An indictment is “sufficient so
long as it (1) contains the elements of the offense intended to be
charged, (2) sufficiently apprises the defendant of what he must
be prepared to meet, and (3) allows the defendant to show with
accuracy to what extent he may plead a former acquittal or
conviction in the event of a subsequent prosecution.” United
States v. Kemp, 500 F.3d 257, 280 (3d Cir. 2007) (internal
quotation marks omitted). We presume that the factual
allegations in an indictment are true for the purpose of this
analysis. United States v. Besmajian, 910 F.2d 1153, 1154 (3d
Cir. 1990).

III.

This case presents a significant and novel question,
creatively framed and well-presented by the government. In
essence, it asks us to consider whether an unsuccessful
candidate for public office can attempt or conspire to obtain
property from another with that person’s consent induced under
color of official right within the meaning of the Hobbs Act. 3
Whether the Manzos can be charged with conspiracy or attempt

3
For the purpose of this appeal, both Ronald and Louis
are treated the same. A private citizen may be convicted of
extortion under the Hobbs Act “if that private citizen either
conspires with, or aids and abets, a public official in the act of
extortion.” United States v. Saadey, 393 F.3d 669, 675 (6th Cir.
2005); see also United States v. McFall, 558 F.3d 951, 958-59
(9th Cir. 2009); United States v. Tomblin, 46 F.3d 1369, 1382
(5th Cir. 1995).

7
to violate the Hobbs Act turns initially on whether they acted
“under color of official right.” 4

The District Court concluded that the Manzos were not
acting “under color of official right” because: (a) the Hobbs Act
is ambiguous and the legislative history supports a narrow
construction of the phrase; (b) the congressional purpose of the
statute corresponds with a narrow construction; and (c) the rule
of lenity applies to narrow the application of the ambiguous
statute. Moreover, the District Court concluded that acting
“under color of official right” was a requirement even for
prosecution of an inchoate violation of the Hobbs Act that did
not involve threatened force, violence or fear. We agree and
conclude that, because the Manzos did not act “under color of
official right,” they may not be charged with attempt or
conspiracy to extort in violation of the Hobbs Act.

4
The other elements of a Hobbs Act violation were
clearly met in this case. First, both parties concede that the
Manzos obtained property from another with his consent.
Second, the interstate commerce element is satisfied. Even
though the agreement was local and the product of a government
sting operation, we require only “proof of a [potential] de
minimis effect on interstate commece.” United States v. Urban,
404 F.3d 754, 766 (3d Cir. 2005) (discussing Lopez-Morrison-
Jones analysis). We have previously found that both local and
fictitious schemes satisfy the interstate commerce element of a
Hobbs Act violation. See United States v. Jannotti, 673 F.2d
578, 590-94 (3d Cir. 1982). Accordingly, the interstate
commerce element is met here.

8
 A.

To determine whether the Manzos’ conduct falls within
the Hobbs Act, we begin with the plain meaning of the “under
color of official right” language. Chevron, U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837, 842
(1984) (“If the intent of Congress is clear, that is the end of the
matter[.]”); United States v. Gregg, 226 F.3d 253, 257 (3d Cir.
2000). The Hobbs Act provides, in pertinent part:

(a) Whoever in any way or degree obstructs,
delays, or affects commerce or the movement of
any article or commodity in commerce, by
robbery or extortion or attempts or conspires so to
do, or commits or threatens physical violence to
any person or property in furtherance of a plan or
purpose to do anything in violation of this section
shall be fined under this title or imprisoned not
more than twenty years, or both.

(b) As used in this section—

…

(2) The term “extortion” means the
obtaining of property from another, with his
consent, induced by wrongful use of actual or
threatened force, violence, or fear, or under color
of official right.

18 U.S.C. § 1951.

9
 The scope of the term “under color of official right” is
not readily apparent from the face of the statute. Indeed, courts
have grappled with ambiguity embedded in the text of the Hobbs
Act, and in particular, the “under color of official right”
language. The ambiguity has led some judges to comment that
“the phrase ‘under color of official right’, standing alone, is
vague almost to the point of unconstitutionality.” United States
v. O’Grady, 742 F.2d 682, 695 (2d Cir. 1984) (Van Graafeiland,
J., concurring in part and dissenting in part). The debate over
the interpretation of the “under color of official right” language
is ongoing; “[o]ther defendants are at loggerheads with the
United States on this question; district judges disagree about the
subject; . . . [w]e cannot settle the scope of the Hobbs Act; only
Congress or the Supreme Court can do so.” United States v.
McClain, 934 F.2d 822, 836 (7th Cir. 1991) (Easterbrook, J.,
concurring). We have grappled previously with the ambiguity
of the Hobbs Act language, and, in an attempt to shed light on
the language, thoroughly discussed its legislative history. See
United States v. Mazzei, 521 F.2d 639, 649-56 (3d Cir. 1975)
(en banc) (Gibbons, J., dissenting) (discussing legislative history
of “under color of official right”); see also United States v.
Cerilli, 603 F.2d 415, 424 (3d Cir. 1979) (Aldisert, J.,
dissenting) (same). However, we have yet to confront squarely
the question before us.

Because the statute is not clear on its face, we normally
look to legislative history to discern congressional intent. See,
e.g., Bruesewitz v. Wyeth Inc., 561 F.3d 233, 244 (3d Cir. 2009).
Unfortunately, when the Hobbs Act was passed, no mention was
made of the meaning of extortion “under color of official right”
in the legislative history. Because “[t]he legislative history is

10
sparse and unilluminating with respect to the offense of
extortion,” the Supreme Court has directed us to presume that
Congress intended to adopt the common law meaning of a
phrase. Evans, 504 U.S. at 264.

“Extortion is one of the oldest crimes in Anglo-American
jurisprudence.” Id. at 278 (Thomas, J., dissenting). At common
law, the phrase “extortion under color of official right” was a
legal term of art that encompassed only the actions of public
officials. Id. at 260; Mazzei, 521 F.2d at 650. Extortion was
defined as “any officer’s unlawfully taking, by color of his
office, from any man, any money or thing of value that is not
due to him.” 4 W. Blackstone, Commentaries.5 The “essence of
the offense was the abuse of the public trust that inhered in the
5
Blackstone used the phrase “by color of his office,”
rather than “under color of official right,” which appears in the
Hobbs Act. This difference is immaterial because the exact
language in the Hobbs Act was likely derived from an
influential treatise on the criminal law of England, written by
William Hawkins, which said:

[I]t is said, [t]hat extortion in a large sense
signifies any oppression under color of right; but
that in a strict sense, it signifies the taking of
money by any officer, by color of his office, either
where none at all is due, or not so much is due, or
where it is not yet due.

Evans v. United States, 504 U.S. 255, 261 n.4 (1992) (quoting 1
W. Hawkins, Pleas of the Crown 316 (6th ed. 1787)).

11
office.” Mazzei, 521 F.2d at 650. Early case law demonstrated
a strict adherence to the narrow common law construction of the
phrase:

The offense consists in the oppressive misuse of
the exceptional power with which the law invests
the incumbent of an office. It is thus apparent
that the crime of extortion is committable only by
an officer. The officer need not possess a legal
title to the office whose functions he executes. A
person who serves as an officer, and claims to be
one[,] is estopped to deny his official
appointment. 2 Bish. Cr. Law, s 392. So it
appears that a de facto as well as a de jure officer
is punishable for extortion, as he is for any other
malfeasance in office. But an official character,
either de facto or de jure, is essential. The
indictment is drawn in the usual form, and
charges that the defendants were officers, and, by
color of their office, extorted. This is a material
averment, proof of which is absolutely required to
support a conviction.

Id. (quoting Kitby v. State, 31 A. 213, 213-14 (N.J. 1894))
(emphasis added). Accordingly, common law extortion, which
extended only to the actions of a public official or someone
acting with the power of a public official, does not encompass
the Manzos’ conduct.

The statutory offense of extortion mirrors the narrow
common law interpretation. The word “extortion,” as used in

12
the Hobbs Act, first appeared in the Anti-Racketeering Act of
1946 (“1946 Act”), which amended the Anti-Racketeering Act
of 1934 (“1934 Act”). The 1934 Act addressed primarily labor
racketeering, but also proscribed an offense that we now define
as extortion: obtaining property “under color of official right.”
Mazzei, 521 F.2d at 652. The 1934 Act was interpreted
narrowly in United States v. Teamsters Local 807, 315 U.S. 521
(1942), which ultimately led to its amendment in 1946. The
1946 Act broadened the description of coercive extortion to
include “threatened force or fear,” but merely carried forward
the “under color of official right” language. Mazzei, 521 F.2d at
652. Accordingly, we look back to the legislative history
surrounding the enactment of the 1934 Act to discern any
legislative history relevant to the “under color of official right”
language. Id.

There is surprisingly little legislative history
accompanying the 1934 Act, and what little exists reveals that it
“was [not] intended to empower federal authorities to police
influence peddling in the political processes of the states.” Id.
The 1934 Act was proposed by the Senate and initially
contained no mention of the phrase “under color of official
right.” Id. After passing the Senate, it was submitted to the
House, where it was completely amended. Id. The House
revision added the phrase “under color of official right” for the
first time, but a letter explaining the revisions failed to mention
the rationale for inclusion of the phrase. Id. The omission
“suggests that the draftsmen did not intend the prohibition to
reach conduct not extortionate at common law.” Id. at 653.

13
 In fact, we can trace the identical “under color of official
right” language back to the New York Penal Law of 1909,
which, in turn, borrowed the language from a penal code
prepared by David Dudley Field and others (the
“Commissioners”). Commissioners of the Code, The Penal
Code of the State of New York (1865). The Field version
provided: “Extortion is the obtaining of property from another,
with his consent, induced by a wrongful use of force or fear, or
under color of official right.” Id.

In an explanatory note to the Field version, the
Commissioners cited to People v. Whaley, 6 Cow. 661 (N.Y.
Sup. Ct. 1827), for the derivation of the “under color of official
right” language. Whaley involved a common law extortion suit
where the presiding justice ultimately collected a fee to which he
was not entitled under the law. Id. at 661. The court found that
the fee had been extorted “under color of official right.” Id.
The court defined the offense as follows:

Extortion signifies, in an enlarged sense, any
oppression under color of right. In a stricter
sense, it signifies the taking of money by any
officer, by color of his office; either, where none
at all is due, or not so much due, or when it is not
yet due.

Id.

Field’s definition of extortion, derived from Whaley, was
first enacted verbatim into the New York Penal Code of 1881,
ch. 676, section 552. The drafters also included Section 556 to

14
expand upon the definition of extortion committed “under color
of official right.” Mazzei, 521 F.2d at 654. Section 556
provided that:

A public officer, or a person pretending to be
such, who unlawfully and maliciously, under
pretense of color or official authority,

1. Arrests another, or detains him against his will;
or

2. Seizes or levies upon another’s property; or

3. Dispossesses another of any lands or
tenements; or

4. Does any other act, whereby another person is
injured in his person, property, or rights;

Commits oppression and is guilty of
misdemeanor.

The New York Penal Code of 1909 later adopted Section
556 as well as the “under color of official right” language. “The
New York statute intended to proscribe common law extortion
which required an act or pretended act in an official capacity.”
Mazzei, 521 F.2d at 654. The statutory language tracing back to
1827 reveals that “the portion of the [Hobbs Act] that refers to
official misconduct continues to mirror the common-law
definition.” Evans, 504 U.S. at 264. Extortionate conduct
committed “under color of official right” must be action in an
official capacity or a pretended act in an official capacity, which

15
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.” 6

6
As a general rule, only public officials may be charged
using the “under color of official right” theory. United States v.
Kenny, 462 F.2d 1205, 1229 (3d Cir. 1972). However, we do
not assert that a candidate for public office may never violate the
Hobbs Act by acting “under color of official right.” Indeed, the
Supreme Court has considered a Hobbs Act question involving a
candidate for re-election to public office. In McCormick v.
United States, 500 U.S. 257 (1991), the Supreme Court
considered whether campaign contributions received “under
color of official right” by a successful candidate required a quid
pro quo element to constitute a Hobbs Act violation.

The Supreme Court distinguished between valid
“political contributions” and extortion under the Hobbs Act. It
held that a candidate running for re-election could violate the
Hobbs Act by accepting certain bribes. It noted that

[p]olitical contributions are of course vulnerable
if induced by the use of force, violence or fear.
The receipt of such contributions is vulnerable
under the Act as having been taken under color of
official right, but only if the payments are made in
return for an explicit promise or undertaking by
the official to perform or not to perform an
official act. In such situations the official asserts

16
 B.

The narrow common law reading of the “under color of
official right” language is also consistent with congressional
purpose. Mazzei, 521 F.2d at 645. Congress sought to proscribe
coercive activity through enactment of the Hobbs Act. Under
the terms of the Hobbs Act, a person can only commit extortion
in one of two ways: (1) through threatened force, violence or
fear or (2) under color of official right. See 18 U.S.C.
§ 1951(b)(2). Both of these types of extortion are inherently
coercive. The District Court found that the Manzos’ actions did
not involve any coercion, and were thus outside the ambit of the
Hobbs Act.

The government argues that the District Court erred in
inserting a “coercion requirement” into the Hobbs Act. This
argument mischaracterizes the District Court’s reasoning. In
exploring the congressional purpose underlying the Hobbs Act,
the District Court correctly apprehended that Congress sought to
criminalize only coercive exchanges. In essence, when

that his official conduct will be controlled by the
terms of the promise or undertaking. This is the
receipt of money by an elected official under
color of official right within the meaning of the
Hobbs Act.

Id. at 273. Unlike McCormick, Louis was not a public official
at the time of the events in question. He was therefore not an
“official assert[ing] that his official conduct [would] be
controlled by the terms.” Id. (emphasis added).

17
proceeding under a “color of official right” theory, the “misuse
of public office is said to supply the element of coercion.”
United States v. Hathaway, 534 F.2d 386, 393 (1st Cir. 1976)
(quoting Mazzei, 521 F.2d at 644-45). Therefore, while the
element of coercion is subsumed in the “under color of official
right” theory, it is not a separate element that the government
must prove. Rather, coercion is merely the justification for
permitting a prosecution under the Hobbs Act.

The government argues that the implicit coercion
requirement was met because Louis agreed and intended to
obtain additional cash from Dwek after being elected mayor and
in exchange for exercising his official powers as mayor. This
argument is unpersuasive. 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. 7

7
Instead, as the Manzos point out, Congress recognizes
and targets candidates as a distinct class under the criminal law.
Under 18 U.S.C. § 599:

Whoever, being a candidate, directly or indirectly
promises or pledges the appointment, or the use of
his influence or support for the appointment of
any person to any public or private position or
employment, for the purpose of procuring support
in his candidacy shall be fined under this title or
imprisoned not more than one year, or both; and if
the violation was willful, shall be fined under this

18
 In accordance with the legislative history, the
congressional purpose underlying the Hobbs Act and centuries
of interpretation of the phrase “under color of official right,” we
conclude that the Manzos were not acting “under color of
official right,” as defined in the Hobbs Act. 8

C.

Having concluded that the Manzos did not act “under
color of official right,” we must determine whether they
nonetheless may be prosecuted for the inchoate offenses of
conspiracy or attempt. The government argues that the

title or imprisoned not more than two years, or
both.

Although this statute only applies to federal candidates, not state
candidates, it reveals Congress’s recognition that candidates
should be treated as a separate class under the law.
8
We do not use the rule of lenity to reach this conclusion
because we find that the statutory text is sufficiently clear after
examining the legislative history and congressional purpose of
the Hobbs Act. However, we note that if we were unable to
clarify the text, the rule of lenity would provide an additional
basis to affirm the District Court. The rule of lenity applies to
ambiguous applications of the Hobbs Act, Scheidler v. Nat’l
Org. for Women, Inc., 537 U.S. 393, 409 (2003), and “ensures
there is fair warning of the boundaries of criminal conduct and
that legislatures, not courts, define criminal liability.” United
States v. Edmonds, 80 F.3d 810, 821 (3d Cir. 1996) (en banc)
(internal citation and quotation marks omitted).

19
conspiracy count is valid because both elements of a conspiracy
are met: (1) criminal intent and (2) an overt act. Specifically,
the government argues the Manzos’ criminal intent
“crystallized” when they agreed to accept future payments in
exchange for future political favors. It contends that when the
Manzos accepted down payments in furtherance of this scheme,
this constituted an overt act substantiating a charge for
conspiracy.

The government also argues that the attempt counts are
valid because both elements of an attempt are met. An attempt
conviction “requires evidence that [the defendants] (1) acted
with the requisite intent to violate the statute, and (2) performed
an act that, under the circumstances as [they] believe[] them to
be, constitute[d] a substantial step in the commission of the
crime.” United States v. Tykarsky, 446 F.3d 458, 469 (3d Cir.
2006). It contends that when the Manzos accepted down
payments in furtherance of the schemes, this constituted a
substantial step.

Neither party disputes that if every contingency upon
which this case is based had occurred (if Louis had won the
election, accepted money as mayor of Jersey City, and
subsequently misused his public office), the Manzos would have
been guilty of a prototypical, substantive Hobbs Act violation.
However, the two parties dispute the importance of Louis’s
failure to obtain office. The government maintains that his
failure to obtain office constitutes a factual impossibility, which
is not a defense to conspiracy or attempt. See, e.g., United
States v. Williams, 553 U.S. 285, 300 (2008); United States v.
Hsu, 155 F.3d 189, 199 (3d Cir. 1998). The Manzos argue, and

20
the District Court agreed, that acting “under color of official
right” is a required status element of any Hobbs Act violation,
inchoate or substantive, that does not involve threatened force,
violence or fear.

We agree that “[t]he Hobbs Act, by its own terms,
encompasses the inchoate offenses of attempt and conspiracy to
extort.” United States v. Jannotti, 673 F.2d 578, 592 (3d Cir.
1982) (en banc). Moreover, the government need not prove
every substantive element of an offense to establish an inchoate
offense. See United States v. Feola, 420 U.S. 671, 694 (1975)
(“The law of conspiracy identifies the agreement to engage in a
criminal venture as an event of sufficient threat to social order to
permit the imposition of criminal sanctions for the agreement
alone, plus an overt act in pursuit of it, regardless of whether the
crime agreed upon actually is committed.”). In fact, a Hobbs
Act conspiracy charge does not even require that “‘the ends of
the conspiracy were from the very inception of the agreement
objectively []attainable.’” Hsu, 155 F.3d at 203 (quoting
Jannotti, 763 F.2d at 591). We also agree that factual
impossibility, or the fact that the agreement was “objectively
unattainable,” is not a defense to a charge of conspiracy or
attempt. Hsu, 155 F.3d at 203. We disagree, however, with the
importance of Louis’s failure to obtain public office.

In support of its argument that this case turns on factual
impossibility, the government points to United States v.
Ledesma-Cuesta, 347 F.3d 527 (3d Cir. 2003). In that case, the
defendant was charged with attempted possession with intent to
distribute cocaine on a vessel subject to the jurisdiction of the
United States, in violation of the Maritime Drug Law

21
Enforcement Act (“MDLEA”). The MDLEA makes it a crime
to attempt or conspire to “board a vessel subject to the
jurisdiction of the United States,” and “possess with intent to
manufacture or distribute a controlled substance.” 46 App.
U.S.C. § 1903(a). Ledesma-Cuesta had four kilograms of
cocaine aboard a vessel bound for Philadelphia, but he was
outside the territorial waters of the United States when he was
discovered. We concluded that this satisfied the requirements of
attempt, an inchoate offense, because “he had already taken
substantial steps toward possessing with intent to illegally
distribute the cocaine in U.S. customs waters, making his actual
location at the time of the apprehension immaterial.” Ledesma-
Cuesta, 347 F.3d at 532. Indeed, we noted that “[t]he case
before us, then, is the exact type of case the MDLEA was
designed to address: one in which the defendant is caught on the
high seas, with drugs intended for illegal distribution once he
reaches U.S. territory.” Id.

Ledesma-Cuesta is distinguishable from the facts at hand
because this is not the “type of case the [Hobbs Act] was
designed to address.” 9 Id. The Hobbs Act is intended to address
a situation where a defendant is caught in public office,
promising to misuse his office once he receives payment. Here,
the government seeks to extend inchoate principles to gloss over
the failure of the central status element of an “under color of

9
The Manzos seek to distinguish this case on the basis
that possessing drugs is always an illegal enterprise. This
distinction is not compelling because, at a minimum, the
Manzos acted in violation of state campaign finance laws.

22
official right” Hobbs Act violation: acting “under color of
official right.” 10

10
We also note that United States v. Tykarsky, 446 F.3d
458 (3d Cir. 2006), is distinguishable. There, the defendant was
charged with interstate travel to engage in illicit sexual conduct
with a minor, in violation of 18 U.S.C. § 2423(b), and using an
interstate facility to attempt to persuade a minor to engage in
illegal sexual activity, in violation of 18 U.S.C. § 2422(b).
Tykarsky argued that the indictment was insufficient because an
undercover FBI agent was posing as a 14-year old girl, and
therefore because no minor was actually involved in the charged
offenses, it was legally impossible for him to commit the
charged crime. We observed that the distinction between legal
impossibility and factual impossibility was “elusive[]” and that
“many jurisdictions [have] eschew[ed] the distinction between
legal and factual impossibility and abolish[ed] the defense
altogether.” Id. at 466. However, we held that legal
impossibility can sometimes be a defense to a crime, depending
on legislative intent. Id. We concluded that the legislative
history of § 2423(b) and § 2422(b) made clear that legal
impossibility was not a defense to that particular crime, and it
was sufficient that Tykarsky attempted to engage in illicit sexual
conduct with a minor. Id. at 468-69. In contrast, the legislative
history does not clearly extend application of the Hobbs Act to
this circumstance. It is not sufficient that the Manzos attempted
to gain the status of acting “under color of official right.” We
leave for another day whether legal impossibility could be a
defense to certain Hobbs Act conspiracy charges and from
whose perspective we would analyze the conspiracy, the

23
 On the other hand, we have sustained a proper charge for
conspiracy to commit a Hobbs Act violation where a non-status
element of the offense was not met. In United States v. Jannotti,
defendants Jannotti and Schwartz were convicted by a jury of
conspiracy to extort in violation of the Hobbs Act. 673 F.2d
578. At the time of the acts in question, Schwartz was president
of the Philadelphia City Council and Jannotti was the Council’s
majority leader. Both Schwartz and Jannotti accepted bribes
from a cooperating witness for the FBI as part of the ABSCAM
government operation designed to reveal government
corruption. The district court set aside the verdict and dismissed
the conspiracy count for lack of jurisdiction. Specifically, the
district court concluded that because the scheme and the money
were all entirely fictitious, there was no effect on interstate
commerce. We reversed and relied on the principle that “[a]ll
that was necessary, in addition to an overt act, was that the
intended future conduct they had agreed upon include[d] all the
elements of the substantive crime.” Id. at 593 (quoting United
States v. Rose, 590 F.2d 232, 235 (7th Cir. 1978)). Accordingly,
we ruled that the “defendants’ plan to transport the goods
interstate, even though unattainable from the outset, sufficiently
impinged on an area of federal concern to justify federal
regulation and prohibition.” Jannotti, 673 F.2d at 593.

The facts in Jannotti are directly analogous to the facts in
Ledesma-Cuesta and distinguishable from the facts here.
Jannotti represents the proper circumstances that support a
charge for conspiracy to commit a Hobbs Act violation. In
contrast to Jannotti, neither Louis nor Ronald ultimately acted

defendant’s or the victim’s.

24
“under color of official right,” the central status element of a
Hobbs Act “under color of official right” violation.
Accordingly, their actions do not sustain a charge for conspiracy
or attempt.

Although this is a question of first impression in our
Circuit, we note that the United States Court of Appeals for the
Seventh Circuit decided a factually similar case, United States v.
Meyers, 529 F.2d 1033 (7th Cir. 1976). In Meyers, the
defendants were candidates for public office who accepted
money individually in consideration for their future official acts
as trustees for the East Side Levee and Sanitary District. The
defendants ultimately obtained public office. They were
indicted for an inchoate offense, conspiracy to violate the Hobbs
Act, and the district court framed the issue on appeal as
“whether candidates for political office can obtain property (i.e.,
$6000) from another with that person’s consent induced under
color of official right.” Id. at 1035. The district court concluded
that “[a] mere candidate for public office can not obtain property
from another with that person’s consent under color of official
right.” Id.

On appeal, the Seventh Circuit disagreed with the district
court’s characterization of the issue. It narrowed the issue on
appeal to “whether, within the meaning of the Hobbs Act, it is a
crime for candidates for political office to conspire to affect
commerce by extortion induced under color of official right
during a time frame beginning before the election but not ending
until after the candidates have obtained public office.” Id. at
1035 (emphasis added). The court leaned on the “crucial factor
of continuity in the crime of conspiracy,” and determined that

25
the conspiracy did not conclude until after the defendants took
office. Id. at 1036. Accordingly, the Seventh Circuit held that
“the alleged conspiracy to obtain property under color of official
right constitutes a crime under the Hobbs Act, even though [the
defendants] were private citizens at the inception of the
conspiratorial agreement.” Id. Although the Seventh Circuit
reasoned that “it is no less of a crime under the Hobbs Act to
sell one’s public trust before, rather than after, one is installed in
public office,” it rested its decision on the basis that the
defendants ultimately obtained office. Id. at 1038. 11

A Hobbs Act inchoate offense prohibits a person acting
“under color of official right” from attempting or conspiring to
11
Several other courts have drawn upon the reasoning in
Meyers, but none has extended inchoate Hobbs Act violations to
a candidate who never obtained public office. In United States
v. Forszt, the Seventh Circuit considered a defendant who began
accepting bribes while in office but received the final payments
after leaving office. 655 F.2d 101 (7th Cir. 1981). It extended
the period of criminality for a conspiracy charge to encompass
the period after the defendant left office because he began to sell
his “public trust” while still in office. Id. at 104. However, the
reach of Meyers was narrowed considerably in United States v.
McClain, 934 F.2d 822 (7th Cir. 1991). The Seventh Circuit
stated: “therefore we believe that, as a general matter and with
caveats as suggested here, proceeding against private citizens on
an ‘official right’ theory is inappropriate under the literal and
historical meaning of the Hobbs Act, irrespective of the actual
‘control’ that citizen purports to maintain over governmental
activity.” Id. at 831.

26
use his or her public office in exchange for payments. It does
not prohibit a private person who is a candidate from attempting
or conspiring to use a future public office to extort money at a
future date. Conspiracy is a powerful tool that is often well-
utilized by the government; however “[i]ts history exemplifies
the ‘tendency of a principle to expand itself to the limit of its
logic.’” Krulewitch v. United States, 336 U.S. 440, 445 (1949)
(Jackson, J., concurring) (quoting Cardozo, The Nature of the
Judicial Process 51 (1921)). 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,” as feared by the District Court.
Manzo, 714 F. Supp. 2d at 497. No court has extended
application of the Hobbs Act this far, and we decline to do so
now.

IV.

For the foregoing reasons, we will affirm the judgment of
the District Court. Acting “under color of official right” is a
requirement of an extortion Hobbs Act offense, substantive or
inchoate, when that offense does not involve threatened force,
violence or fear. Conduct by an unsuccessful candidate in an
election does not meet that requirement.

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