THREATENING COMMUNICATIONS, EXTORTION, BLACKMAIL AND OTHER THREAT CRIMES IN FEDERAL COURT
By John Teakell Attorney-‐at-‐Law
I. Generally Title 18 of the United State Code contains several federal crimes of extortion, communicating threats, and similar federal offenses, whether the communication is via “wire” or mail. Sections 871 through 880 of Title 18, U.S. Code, list these federal crimes: §871. Threats Against the President §872. Extortion by U.S. Officers or Employees §873. Blackmail §874. Kickbacks from Public Works Employees §875. Interstate Communications §876. Mailing Threatening Communications §877. Mailing Threats from Foreign Country §878. Threats Against Foreign Officials §879. Threats Against Former Presidents §880. Receiving Proceeds of Extortion
Generally, the crime of “blackmail” has become more known as “extortion.” Extortion is essentially threatening to do something, or disclose something, that will in some manner harm the potential victim of the threat. Often, the threat of the potential harm is done in attempts to obtain something of value, whether it is money or some non-‐tangible benefit. It is a federal crime pursuant to the use of interstate or foreign communications (see Title 18, U.S. Code, §875, Interstate Communications), or the use of the mail (see Title 18, U.S. Code §876, Mailing Threatening Communications). A federal threat crime can also be prosecuted pursuant to the requirement that it involve a violation of federal law (see Title 18, U.S. Code, §873, Blackmail).
II. Commonly Used Charges
The most common extortion or extortionate threat prosecuted by a United States Attorney’s Office or by the U.S. Department of Justice is for Interstate Communications, which involves threats of harm (can be physical, economic, or other) that are carried out by the use of wire transmissions, such as emails, faxes, computer chats or messages, wires, or other interstate or foreign communications. Mailing threatening communications would have been considered a common method of communicating threats that violate federal criminal law several years ago, but with technological advances with computers and communications, more such threats are commonly communicated by an interstate transmission than by using the mail system.
A less-‐commonly charged federal crime than threats by interstate communication, but probably more known by the public, is the federal offense of Threats Against the President. The U.S. Secret Service commonly investigates leads of persons who may appear to have made threats against the President of the United States, yet a small percentage are actually formally charged through the U.S. Attorney’s Office.
III. Threatened Harm
The threat has to be an actual threat, and the potential or threatened harm can be economic, but it does not have to be so. A threatened harm can be to reputation or to any information that would negatively affect a person or his/her business.
Title 18 U.S.C. §875, Interstate Communications, references a potential, or threatened: 1) kidnapping; 2) harm/injury to a person; 3) harm to the property of a person; or 4) harm to his reputation.
Title 18, U.S.C. §876, Mailing Threatening Communications, lists the same potential harms from a threat as the subject of prosecution: 1) kidnapping; 2) harm to a person; 3) harm to property; or 4) harm to reputation.
Note that Title 18, U.S.C. §873 contains the phrase “under a threat of informing, or as a consideration for not informing.” This is the classical blackmail/extortion situation, wherein a person would threaten to inform people or the public of a wrongdoing or an embarrassing matter, in order to obtain a payment for not disclosing such information. Such information could be the subject of a legitimate prosecution for criminal activity, yet the “blackmailer” or person making the extortionate threat, would still be guilty of committing the crime of extortion or blackmail (or making threatening communications, depending on how the prosecution charged the case).
IV. Extortionate Credit Transactions
Title 18 of the U.S. Code makes it illegal to make extortionate lending of credit, which is, in general terms, making loans with rates of interest in excess of 45%. These types of transactions are historically associated with organized crime figures and/or “loan sharking.”
Extortionate lending offenses are found at 18 U.S.C. §891, et seq., specifically at §§892 and 893.
Investigations of threatening communications are often started by a complaining person, who claims to have been threated by email, text, mail, or some other manner. The Federal Bureau of Investigation, U.S. Postal Inspectors, U.S. Homeland Security and the U.S. Secret Service can investigate these complaints of threats or extortion. The U.S. Secret Service becomes aware of letters written to the President or other communications to the President or White House due to their monitoring for security reasons.
These federal investigations, like all other federal investigations, would be prosecuted by a United States Attorney’s Office in the district where the offense occurred, or it might be prosecuted by the U.S. Department of Justice. Some threats could be prosecuted in the District of Columbia, such as a threat against the President.
Any person convicted in federal court of extortionate threats, blackmail, or threats against the President, is subject to the type of sentencing as in other federal cases. That is, such sentencings are guided by the U.S. Sentencing Guidelines, taking into consideration the recommendation punishment range from the calculations of the U.S. Sentencing Guidelines. These calculations depend on the base level of the particular guideline, plus the enhancements for factors that address the egregiousness of the incident(s). See the U.S. Sentencing Guidelines and U.S. Sentencing Guidelines Manual.