U.S. v. OCASIO, NO. 12-4462

Decided: April 29, 2014

The Fourth Circuit affirmed the Defendant’s conviction on count one, a conspiracy charge, but vacated the sentencing court’s restitution award to Erie Insurance because it found that Erie did not qualify as a victim under the Victim Witness Protection Act (“VWPA”).

Samuel Ocasio (“Defendant”), a former officer with the Baltimore Police Department (the “BPD”), was found guilty of four offenses that related to his involvement in a kickback scheme to funnel wrecked automobiles to a Baltimore repair shop in exchange for monetary payments.  Defendant was convicted of three Hobbs Act extortion counts, plus a charge of conspiracy to commit extortion.  On appeal, Defendant maintained that his conspiracy was fatally flawed.  He also challenged a portion of the sentencing court’s restitution award.

Defendant, along with nine other BPD officers, Moreno and Mejia, co-owners and operators of the Majestic Repair Shop (“Majestic”), were indicted for conspiracy to commit extortion.  The indictment alleged that the defendants, along with others “known and unknown” violated the Hobbs Act by agreeing to “unlawfully obtain under color of official right, money and other property” from the co-owners and Majestic.  A grand jury returned a seven-count-superseding indictment charging only Defendant and Manrich, another BPD officer who had not initially been indicted.  Count one alleged that the defendants conspired to violate the Hobbs Act.  Counts two through four alleged that Manrich unlawfully obtained, under color of official right, money and property.  Counts five through seven charged Defendant with Hobbs Act extortion of one of the co-owner of Majestic on three occasions.

The prosecutions underlying Defendant’s appeal resulted from an extensive investigation by the BPD and Federal Bureau of Investigation (“FBI”).  The investigation of BPD officers and Majestic established that there was a wide-ranging kickback scheme in which BPD officers would refer accident victims to Majestic for repair, and in exchange for these referrals the officers would receive monetary payments.  At trial, Defendant raised his primary argument that was the crux of his appeal:  that he could not be convicted of conspiring with the co-owners of the repair shop, because they were the victims of the alleged Hobbs Act extortion conspiracy.  Defendant moved for judgment of acquittal in relation to the extortion conspiracy, but his motion was denied.  At the conclusion of his trial on the superseding indictment, Defendant renewed his judgment of acquittal motion, which was again denied.  The jury found Defendant guilty of all charges and he was sentenced to eighteen months in prison.  The court also ordered Defendant to make restitution to the BPD for the cash payments Defendant had received from the repair shop.  The prosecution further sought restitution with respect to Erie Insurance, predicated on the proposition that Defendant had defrauded GEICO, which in turn had been reimbursed by Erie (as insurer for the at-fault driver involved in an accident with Defendant’s wife).  The court entered an amended judgment, which directed Defendant to make restitution to Erie in an amount representing the difference between the total reimbursement made by Erie and the amount actually attributable to Erie.  Defendant timely noticed his appeal.

Reviewing Defendant’s contention that his count one conspiracy conviction was fatally flawed, the Court noted that it must sustain a guilty verdict if, viewing the evidence in the light most favorable to the prosecution, the verdict is supported by substantial evidence.  The Court also noted that it must review de novo a question of law, including an issue of statutory interpretation.  The Hobbs Act defines “extortion”, in part, as “the obtaining of property from another, with his consent, . . . under color of official right.”  To prove such an offense, the prosecution “need only show that a public official . . . obtained a payment to which he was not entitled, knowing that the payment was made in return for his official acts.”  The Court concluded that, contrary to Defendant’s arguments, the Hobbs Act contains no language that forecloses the possibility that “another” can also be a conspirator of the public official.  The Court also rejected Defendant’s argument that the law requires that victim under the Hobbs Act be a person outside the conspiracy.  Accordingly, the Court affirmed Defendant’s count one conspiracy.

The Court, however, vacated the sentencing court’s award of restitution to Erie Insurance, concluding that it was unable to endorse the sentencing court’s determination that Erie Insurance suffered any losses that resulted from the Hobbs Act extortion conspiracy charge in count one.  The Court concluded that because Erie was not a “victim”, as required by the VWPA, the award of restitution must be vacated.

Full Opinion

Abigail Forrister

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