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Extortion By Private Person

Any person who receives or demands money or any thing of value from someone as part of a threat against disclosing information, or as a consideration for not disclosing information, in violation of the law, shall be liable for extortion.  The essential elements of the federal crime of extortion are defendant’s use of actual or threatened force; violence, or fear; and the victim’s consent, however forced, to the transfer of property[i]. 

Extortion is frequently utilized by organized crime to generate income and extortionists use measures such as shakedown rackets and loan-sharking as a means to obtain money[ii].  Blackmail is another form of extortion whereby criminals obtains money from victims by threatening to expose private or embarrassing conduct[iii].

Transmitting a threatening communication in interstate commerce for the purpose of extortion is also a punishable offense[iv].  Title 18 of United States Code § 875 criminalizes extortion as a true threat is not protected by the First Amendment[v].  Hence, Constitution requires that speech involved must constitute a “true threat.” In order to establish that certain language constitutes a “true threat,” the government must prove that the statement came in context or under such circumstances wherein a reasonable person would take that statement as serious expression of intention to inflict bodily harm and would perceive such expression as being communicated to effect some change or achieve some goal through intimidation.  Whether a letter contains “true threat” is an objective inquiry, and “guilt is not dependent upon what defendant intended, but whether recipient could reasonably have regarded defendant’s statement as threat[vi].”  Also, a person shall be liable if the threat was of such a nature as would reasonably induce fear, even though communication was not delivered to person threatened[vii].

Extortion or attempted extortion is treated as an offense within the offense of bank robbery and the act of receiving, possessing, concealing, or disposing of the proceeds of extortion is punishable under federal law[viii]. 

In order to be liable, the person must act with criminal intent.  The victim of an extortion acts from fear, whether of violence or exposure and there should be a specific intent on the part of the perpetrator to induce such fear in the victim.  The elements of extortion are a wrongful use of force or fear, with the specific intent of inducing the victim to consent to the defendant’s obtaining his property, which does not in fact induce such consent and results in the defendant’s obtaining property from the victim[ix].  Courts will find the specific intent by using an objective analysis of the entire surrounding circumstances and facts[x].  

If the statute requires malice on the part of the defendant, it does not mean a feeling of ill will towards the person threatened, but the willful doing of an act with an illegal intent.  Similarly, evidence of a demand or a request for a specific sum of money is not a prerequisite to a conviction of extortion[xi].

Statutes and courts have broadened the definition of extortion to include unlawful acquisitions of property by means of threats.  Thus, in order to constitute extortion, it is sufficient if the defendant made a threat with the requisite intent and it reasonably appears to the recipient that the threat could be carried out[xii].

Examples of the kinds of threats that qualify for extortion are threats to cause physical harm to another, to cause damage to property, to subject another to physical confinement, to accuse someone of a crime, to expose a secret tending to subject someone to hatred, contempt, or ridicule, or to take action or withhold action as an official, etc.  For instance, the California court has held that threat may be to do an unlawful injury to the person or property of the individual threatened or of a third person; or to accuse the individual threatened, or any relative, or member of his/her family, of any crime; or to expose, or to impute to him or them any deformity, disgrace or crime; or to expose any secret affecting the particular person or his/her family[xiii]. 

Threat need not be as to any specific plan of action and no precise words are necessary to convey a threat.  Courts have held that “the more vague and general the terms of the accusation the better it would subserve the purpose of the accuser in magnifying the fears of his victim, and the better also it would serve to protect him in the event of failure to accomplish his extortion and of a prosecution for his attempted crime[xiv].”  Thus a threat to destroy or injure a person or his/her character or property is sufficient.  However, in this context, some courts have held that a threat to expose another to disgrace and to injure his or her reputation was not a threat of injury to the person or property of another[xv].

Also, a threat need not be directly communicated to the object of the threat, unless the statute specifically dictates so.  The threat must be used as a means to obtain money or something of value from the victim for the purpose of gain to the one making the threat.  There is no need for an overt act to carry out the threat.  The crime of extortion is complete before the money is handed over.  But receipt of the money is certainly evidence of the extortionist’s intent[xvi].  

Courts will admit any competent evidence which tends to prove or disprove any material fact at issue.  A jury may properly consider the surrounding circumstances and the probability or improbability of defendant’s testimony[xvii].

A defendant can make a valid defense of duress or coercion may be a valid defense in a prosecution for extortion.  However, the defendant must present evidence showing that he/she committed the extortion against his/ her will under circumstances which constituted a real, imminent and impending danger to him/ her or to some loved one.  Alternatively, a defendant must produce evidence showing that defendant committed the extortion because he/she reasonably believed at the time of the extortion that such a danger existed[xviii].

However, a defendant charged with transmitting threatening communications in interstate commerce cannot escape liability by claiming ignorance of the interstate nexus[xix].

[i] 18 U.S.C.S. § 1951(b)(2).

[ii] United States v. Nardello, 393 U.S. 286 (U.S. 1969).

[iii] United States v. Xiao Qin Zhou, 428 F.3d 361, 371 (2d Cir. N.Y. 2005).

[iv] 18 USCS § 875, United States v. Alkhabaz, 104 F.3d 1492 (6th Cir. Mich. 1997).

[v] United States v. Whiffen, 121 F.3d 18, 22 (1st Cir. N.H. 1997).

[vi] United States v. Stewart, 411 F.3d 825 (7th Cir. Ind. 2005).

[vii] United States v. Holder, 302 F. Supp. 296 (D. Mont. 1969).

[viii] 18 U.S.C.A. § 880.

[ix] People v. Hesslink, 167 Cal. App. 3d 781 (Cal. App. 4th Dist. 1985).

[x] Whiffen, 121 F.3d 18.

[xi] People v. Hesslink, 167 Cal. App. 3d 781 (Cal. App. 4th Dist. 1985).

[xii] People v. Harris, 43 Cal. 4th 1269 (Cal. 2008).

[xiii] People v. Oppenheimer, 209 Cal. App. 2d 413 (Cal. App. 2d Dist. 1962).

[xiv] People v. Bolanos, 49 Cal. App. 2d 308 (Cal. App. 1942).

[xv] State v. Simmons, 114 R.I. 16 (R.I. 1974).

[xvi] People v. Fort, 138 Mich. App. 322 (Mich. Ct. App. 1984).

[xvii] People v. Jones, 161 Ill. App. 3d 688, 696 (Ill. App. Ct. 1st Dist. 1987).

[xviii] Stevens v. State, 397 So. 2d 324 (Fla. Dist. Ct. App. 5th Dist. 1981).

[xix] Whiffen, 121 F.3d 18.

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