United States v. Sekhar

11-4298
United States v. Sekhar
UNITED STATES COURT OF APPEALS 1
2
FOR THE SECOND CIRCUIT 3
4
August Term, 2011 5
6
7
(Argued: April 16, 2012 Decided: June 26, 2012) 8
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Docket No. 11-4298 10
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UNITED STATES OF AMERICA, 14
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Appellee, 16
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- v.- 18
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GIRIDHAR C. SEKHAR, 20
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Defendant-Appellant. 22
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Before: JACOBS, Chief Judge, B.D. PARKER and 26
HALL, Circuit Judges. 27
28
Giridhar Sekhar appeals his conviction, following a 29
jury trial in the Northern District of New York (Thomas J. 30
McAvoy, Judge), for [i] attempted extortion of the General 31
Counsel of the New York State Comptroller’s Office in 32
violation of the Hobbs Act, 18 U.S.C. § 1951(a), and [ii] 33
interstate transmission of extortionate threats in violation 34
of 18 U.S.C. § 875(d). Sekhar argues that his conduct did 35
not come within the statutory definition of extortion 36

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2
because he did not “attempt to obtain property” from the 1
General Counsel. See Scheidler v. Nat’l Org. for Women, 2
Inc., 537 U.S. 393, 409 (2003) (“Scheidler II”) 3
(interpreting 18 U.S.C. § 1951(b)(2)). Sekhar argues that 4
[1] the General Counsel’s right to make recommendations was 5
not a property right, and [2] he did not attempt to 6
appropriate or exercise that right. We affirm. 7
PAUL A. CLYNE, Albany, N.Y., for 8
Appellant. 9
10
RAJIT S. DOSANJH, Assistant 11
United States Attorney 12
(Elizabeth C. Coombe, Assistant 13
United States Attorney, on the 14
brief), for Richard S. 15
Hartunian, United States 16
Attorney for the Northern 17
District of New York, Syracuse, 18
N.Y., for Appellee. 19
20
DENNIS JACOBS, Chief Judge: 21
Giridhar Sekhar was convicted following a jury trial in 22
the United States District Court for the Northern District 23
of New York (Thomas J. McAvoy, Judge) of [i] attempted 24
extortion of the General Counsel of the New York State 25
Comptroller’s Office in violation of the Hobbs Act, 18 26
U.S.C. § 1951(a), and [ii] interstate transmission of 27
extortionate threats in violation of 18 U.S.C. § 875(d). 28
Sekhar had threatened to disclose gossip that the General 29

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3
Counsel was conducting an office affair unless the General 1
Counsel recanted a recommendation to the State Comptroller 2
to reject a proposal by Sekhar’s company. On appeal, Sekhar 3
contends that his conduct did not come within the statutory 4
definition of extortion because he did not “attempt to 5
obtain property” from the General Counsel. See Scheidler 6
II, 537 U.S. at 409 (interpreting 18 U.S.C. § 1951(b)(2)). 7
Sekhar argues that [1] the General Counsel’s right to make 8
recommendations was not a property right, and [2] he did not 9
attempt to appropriate or exercise that right. We affirm. 10
11
BACKGROUND 12
Investment Process. The Common Retirement Fund 13
(“Pension Fund” or “Fund”) is the employee pension fund for 14
the State of New York and various of its local governments. 15
The State Comptroller is the sole trustee and has final 16
approval over all Fund investments. 17
If the Comptroller approves an investment, he issues a 18
Commitment. Fund investments are sometimes contingent on a 19
company’s attracting other investors, and a Commitment 20
assists that process by signaling the backing of the Pension 21
Fund. But a Commitment does not bind the Fund to invest; 22

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4
for that, the parties must execute and close on a limited 1
partnership agreement. 2
Proposed Investment with FA Technology. In 2008, the 3
Comptroller issued a Commitment for a $35 million investment 4
in a fund managed by FA Technology Ventures (“FA 5
Technology”) known as “FA Tech II.” The investment never 6
closed. In October 2009, the Comptroller’s Office 7
considered another $35 million investment in two FA 8
Technology funds, known collectively as “FA Tech III.” 9
Based on the proposed terms, FA Technology would earn nearly 10
$7.6 million in management fees over ten years, and could 11
earn more depending on how the investment performed. 12
In April 2009, the Comptroller’s Office had prohibited 13
investments marketed by placement agents. Although FA 14
Technology did not use a placement agent for FA Tech III, it 15
had used one for FA Tech II, and the Comptroller’s Office 16
questioned the FA Tech III investment on that ground because 17
the investment was “essentially the same” as FA Tech II. 18
While the General Counsel was considering the issue, he 19
was advised by the Office of the New York Attorney General 20
that it was investigating the placement agent involved in FA 21
Tech II and that the Pension Fund should avoid association 22

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5
with that agent. The General Counsel’s internal memo 1
recommended that, “[b]ased on information provided by the 2
Office of the Attorney General . . ., it would be prudent, 3
from a legal perspective, to avoid moving forward” with the 4
FA Tech III investment and warned that the Pension Fund and 5
the Comptroller’s Office could be “in a vulnerable situation 6
if the investment were made and a report or other finding of 7
wrongdoing was subsequently issued by the [Office of the 8
Attorney General].” The Comptroller, so advised, decided on 9
November 13 not to approve the investment. 10
The First Deputy Comptroller conveyed the decision to 11
George Hulecki, a managing partner of FA Technology. 12
Hulecki had previously been informed of the General 13
Counsel’s opposition to the investment and of rumors that he 14
was having an extramarital affair. 15
Sekhar’s Conduct. On November 17, the General Counsel 16
received an anonymous e-mail to his work account requesting 17
a personal e-mail address to report “a serious ethical 18
issue.” He advised the e-mailer to contact the Inspector 19
General, but also provided a personal address. The e-mailer 20
replied to the personal address accusing the General Counsel 21
of “blackball[ing] a recommendation on a fund,” and 22

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6
threatening that if, by November 20, he did not tell the 1
Comptroller that he had a “change of heart” and “recommend 2
moving forward with this fund,” the e-mailer would disclose 3
that the General Counsel was having an office affair to the 4
General Counsel’s wife, as well as to the Comptroller, the 5
Attorney General, the press, and others. 6
That night, another e-mail warned the General Counsel 7
that he had “36 hours left . . . [t]o make the wrong right.” 8
The next day, a similar e-mail arrived, as well as an e-mail 9
attaching a draft letter to the Attorney General disclosing 10
the alleged affair. 11
On the advice of law enforcement, the General Counsel 12
asked the e-mailer for more time. On Monday, November 23, 13
the e-mailer assured the General Counsel that he would 14
“never hear about this again” if he could “get this fixed by 15
Wednesday.” On Tuesday, December 1, the e-mailer asked the 16
General Counsel what he thought about Tiger Woods: “[W]ho 17
would have thought that a woman could get that upset . . . 18
and over what?” (ellipses in original). 19
The FBI traced some of the e-mails to the Brookline, 20
Massachusetts home of Sekhar, a managing partner of FA 21
Technology, and executed a search warrant. Sekhar admitted 22

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7
to sending the e-mails, and forensics confirmed Sekhar’s 1
computer as the source. 2
Procedural History. The indictment alleged that Sekhar 3
wrongfully attempted to obtain the General Counsel’s 4
recommendation to approve the Commitment, the Comptroller’s 5
approval of the Commitment, and the Commitment itself. 6
Sekhar was charged with one count of attempted extortion 7
under the Hobbs Act, 18 U.S.C. § 1951(a), and six counts of 8
interstate transmission of extortionate threats, id. 9
§ 875(d). Sekhar moved pro se to dismiss the indictment on 10
the ground (inter alia) that it failed to state an offense, 11
see Fed. R. Crim. P. 12(b)(3)(B), because a recommendation 12
is not property, an approval is not property, and the 13
indictment did not allege that Sekhar threatened a person 14
with power to issue the Commitment. In denying the motion, 15
the court ruled that “the General Counsel’s right to make 16
professional decisions without outside pressure is an 17
intangible property right” and that the government need only 18
prove that Sekhar “believed that the General Counsel’s 19
recommendation was the determining factor in obtaining the 20
Commitment.” 21
22

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1 Sekhar was acquitted on the count based on the
December 1 “Tiger Woods” e-mail.
8
Sekhar, defending pro se, was convicted on the 1
extortion count and on five of the six counts of interstate 2
transmission of extortionate threats. 1 For each count, the 3
jury indicated on a special verdict form that Sekhar 4
attempted to extort the General Counsel’s recommendation to 5
approve the Commitment. 6
Sekhar, with counsel, moved for a judgment of acquittal 7
or a new trial, based (inter alia) on the sufficiency of the 8
evidence. See Fed. R. Crim. P. 29(c), 33(a). The court 9
ruled that there was sufficient evidence that: Sekhar 10
attempted to exercise control over the General Counsel’s 11
right to make recommendations; Sekhar believed that this 12
exercise would result in a Commitment; and a Commitment 13
would benefit Sekhar financially. Sekhar was sentenced to 14
fifteen months’ incarceration on each count, to be served 15
concurrently. 16
17
DISCUSSION 18
On appeal, Sekhar contends that the indictment failed 19
to state an offense and that the evidence was insufficient 20
to sustain the conviction. For both contentions, Sekhar’s 21

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2 The Court has sometimes reviewed arguments similar to
Sekhar’s as challenging the sufficiency of the evidence, see
United States v. Cain, 671 F.3d 271, 277 (2d Cir.), cert.
denied sub nom. Soha v. United States, 132 S. Ct. 1872
(2012), and sometimes as challenging the indictment, see
United States v. Coppola, 671 F.3d 220, 233 (2d Cir.), reh’g
denied, No. 10-0065-cr (2d Cir. May 14, 2012); Gotti, 459
F.3d at 320.
9
argument is the same: His conduct, as alleged in the 1
indictment and proven at trial, did not come within the 2
statutory definition of extortion because he did not 3
“attempt to obtain property” from the General Counsel. See 4
Scheidler II, 537 U.S. at 409 (interpreting 18 U.S.C. 5
§ 1951(b)(2)). The standard of review for both contentions 6
is de novo. United States v. Gotti, 459 F.3d 296, 320 (2d 7
Cir. 2006) (“[W]e evaluate the legal issue[] of whether the 8
indictment properly charged Hobbs Act extortion . . . under 9
a de novo standard.”); United States v. Madori, 419 F.3d 10
159, 166 (2d Cir. 2005) (“We review de novo a challenge to 11
the sufficiency of evidence and affirm if the evidence, when 12
viewed in its totality and in the light most favorable to 13
the government, would permit any rational jury to find the 14
essential elements of the crime beyond a reasonable doubt.” 15
(internal quotation marks omitted)). Accordingly, we 16
analyze both contentions together. 2
17
The Hobbs Act subjects to criminal liability “[w]hoever 18

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10
in any way or degree obstructs, delays, or affects commerce 1
or the movement of any article or commodity in commerce, by 2
robbery or extortion or attempts or conspires so to do.” 18 3
U.S.C. § 1951(a). “The term ‘extortion’ means the obtaining 4
of property from another, with his consent, induced by 5
wrongful use of actual or threatened force, violence, or 6
fear, or under color of official right.” Id. § 1951(b)(2). 7
The parties agree that this definition also applies to § 8
875(d), which subjects to criminal liability “[w]hoever, 9
with intent to extort from any person, firm, association, or 10
corporation, any money or other thing of value, transmits in 11
interstate or foreign commerce any communication containing 12
any threat to injure the property or reputation of the 13
addressee.” See also United States v. Jackson, 180 F.3d 55, 14
70 (2d Cir. 1999) (“Given Congress’s contemporaneous 15
consideration of the predecessors of § 875(d) and the Hobbs 16
Act, . . . we infer that Congress’s concept of extortion was 17
the same with respect to both statutes.”). 18
The element of “obtaining . . . property” entails a 19
two-part inquiry: “whether the defendant is (1) alleged to 20
have carried out (or, in the case of attempted extortion, 21
attempted to carry out) the deprivation of a property right 22

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from another, with (2) the intent to exercise, sell, 1
transfer, or take some other analogous action with respect 2
to that right.” Gotti, 459 F.3d at 324 (citing Scheidler 3
II). 4
5
I 6
“The concept of property under the Hobbs Act . . . is 7
not limited to physical or tangible property or things, but 8
includes, in a broad sense, any valuable right considered as 9
a source or element of wealth . . . .” United States v. 10
Tropiano, 418 F.2d 1069, 1075 (2d Cir. 1969) (citations 11
omitted); accord Gotti, 459 F.3d at 323. 12
“The right to pursue a lawful business . . . has long 13
been recognized as a property right . . . .” Tropiano, 418 14
F.2d at 1076. There is a property right to “conduct a 15
business free from threats,” United States v. Arena, 180 16
F.3d 380, 394 (2d Cir. 1999), abrogated in part on other 17
grounds by Scheidler II, 537 U.S. at 403 n.8, and “to make 18
various business decisions . . . free from outside 19
pressure,” Gotti, 459 F.3d at 327. 20
The General Counsel’s job was to provide legal advice 21
to the Comptroller. A “lawyer’s stock in trade is the sale 22

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3 The government has not argued, and we need not
consider, whether the state and local employees whose money
was invested in the Pension Fund had a property right to
have the General Counsel make recommendations in the best
interest of the Fund.
12
of legal services.” Massaro v. Chesley (In re San Juan 1
Dupont Plaza Hotel Fire Litig.), 111 F.3d 220, 237 n.19 (1st 2
Cir. 1997) (internal quotation marks omitted). What is sold 3
is “time and advice.” United States v. Bertoli, 994 F.2d 4
1002, 1023 (3d Cir. 1993) (internal quotation marks 5
omitted). Accordingly, the General Counsel had a property 6
right in rendering sound legal advice to the Comptroller 7
and, specifically, to recommend--free from threats--whether 8
the Comptroller should issue a Commitment for FA Tech III. 3
9
Sekhar argues that the General Counsel’s recommendation 10
to approve the Commitment--which the jury found was the 11
object of the attempted extortion--was not a property right 12
enjoyed by the General Counsel because it was not, for the 13
General Counsel, a “source or element of wealth.” See 14
Tropiano, 418 F.2d at 1075. According to Sekhar, the 15
government had to show that the General Counsel derived 16
wealth from his ability to make the recommendation or that 17
he would have suffered monetarily had Sekhar succeeded in 18
forcing him to change his recommendation. 19

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13
The value and worth of a lawyer’s services may be said 1
generally to depend on freedom from conflict, including a 2
conflict created by personal blackmail. Accordingly, the 3
General Counsel’s ability to give legal advice free from 4
threats--and, specifically, to make a recommendation on FA 5
Tech III--can be seen as a “source or element of wealth” for 6
the General Counsel. In any event, as the district court 7
observed, a property right need not be a source of wealth to 8
the target of the extortion. 9
In Gotti, the Court held that the defendants--members 10
and associates of the Gambino Crime Family--deprived union 11
members of their rights under the Labor-Management Reporting 12
and Disclosure Act of 1959 (“LMRDA”), 29 U.S.C. § 501(a), 13
“to free speech[,] . . . democratic participation in union 14
affairs[, and] . . . loyal representation by their officers, 15
agents, and other representatives.” 459 F.3d at 325; accord 16
Coppola, 671 F.3d at 234-36; see also United States v. 17
Bellomo, 176 F.3d 580, 592-93 (2d Cir. 1999) (“The right of 18
the members of a union to democratic participation in a 19
union election is property . . . .”). In considering 20
another count, the Court held that the defendants deprived 21
healthcare plan participants of their right to have the 22

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4 Sekhar cites Town of W. Hartford v. Operation Rescue,
915 F.2d 92, 102 (2d Cir. 1990), for the proposition that
“the term ‘property’ cannot plausibly be construed to
encompass altered official conduct.” In West Hartford, the
Court held that anti-abortion protesters did not engage in
extortion by (inter alia) resisting arrest and refusing to
identify themselves to police: While these actions caused
the town to expend additional resources, “[v]irtually any
conduct that elicits a governmental response will require
activity by one or more salaried governmental employees.”
Id. Mere “governmental response to unlawful acts is not
‘property’ within the meaning of the Hobbs Act.” Arena, 180
F.3d at 393 (citing W. Hartford, 915 F.2d at 101-02). In
West Harford, unlike the present case, the governmental
response was an exercise of the police power, which did not
entail a channeling of value or advantage to the benefit of
a defendant.
14
plan’s “trustees and fiduciaries discharge their duties in 1
[the plan’s] best interest.” Gotti, 459 F.3d at 326. The 2
Court did not analyze whether these rights were a “source or 3
element of wealth” for the targets of the extortion. 4
Instead, as discussed in Part II, the Court focused on the 5
value of the rights to the defendant extortionists. 4
6
7
II 8
“[T]he extortion provision of the Hobbs Act . . . 9
require[s] not only the deprivation but also the acquisition 10
of property.” Scheidler II, 537 U.S. at 404. The question 11
becomes “whether the defendants . . . ‘pursued [or] received 12
something of value from [victims] that they could exercise, 13

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transfer, or sell.’” Gotti, 459 F.3d at 323 (brackets in 1
original) (quoting Scheidler II, 537 U.S. at 405). The 2
defendants in Scheidler II, anti-abortion protesters who 3
aimed to shut down clinics, “‘may have deprived or sought to 4
deprive [the clinics] of their alleged property right of 5
exclusive control of their business assets,’” but “‘there 6
was no basis upon which to find that [the protesters] 7
committed extortion under the Hobbs Act’” because the 8
protesters “‘did not obtain or attempt to obtain property 9
from [the clinics].’” Id. at 322-23 (quoting Scheidler II, 10
537 U.S. at 405, 409). 11
The protesters “would have satisfied the Scheidler II 12
Court’s definition of ‘obtaining’” had they “sought to take 13
further action after having deprived the clinics of their 14
right to conduct their business as they wished--by, for 15
example, forcing the clinic staff to provide different types 16
of services.” Id. at 324. In such an event, “the victim is 17
ordered to exercise his or her rights in accordance with the 18
extortionist’s wishes, such that the extortionist is 19
essentially controlling the exercise of those rights.” Id. 20
at 324 n.9. 21
22

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16
Accordingly, in Gotti, the Court held that the 1
defendants, by controlling the decisions of union officials, 2
“caused the relinquishment of the union members’ LMRDA 3
rights . . . in order to exercise those rights for 4
themselves.” Id. at 325; accord Coppola, 671 F.3d at 234- 5
38. Addressing another count, the Gotti Court held that the 6
defendants, by dictating the healthcare plan that union 7
trustees selected, deprived the union members of their 8
rights to have the trustees act as fiduciaries and 9
“exercised the rights . . . in order to profit themselves.” 10
459 F.3d at 326; see also Cain, 671 F.3d at 282 (“[W]hether 11
the property that is the subject of the extortion is 12
valuable in the hands of the defendant . . . will rarely be 13
a problem in cases . . . in which the defendant seeks to 14
exploit the very intangible right that he extracts from the 15
victim.”). 16
Here, as the district court concluded, Sekhar attempted 17
to deprive the General Counsel of his right to make a 18
recommendation consistent with his legal judgment and 19
attempted to exercise that right by forcing the General 20
Counsel to make a recommendation determined by Sekhar. 21
22

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17
As Sekhar points out, a positive recommendation from 1
the General Counsel would not have guaranteed a Commitment, 2
and a Commitment would not have guaranteed an investment. 3
But “‘[t]he concept of property . . . does not depend upon a 4
direct benefit being conferred on the person who obtains the 5
property.’” Gotti, 459 F.3d at 320 (quoting Tropiano, 418 6
F.2d at 1075-76). An extortionist does not necessarily 7
profit by exercising the rights thus obtained; it is enough 8
that “defendants exercise[] the rights in question in order 9
to profit themselves.” Id. at 326 (emphasis added). 10
The defendant in Cain, who used threats and violence to 11
drive his competitors from the market, argued that the 12
government “introduced no evidence that through [his] 13
coercive conduct [he] obtained specific tree service jobs or 14
a quantifiable portion of the tree-service market.” 671 15
F.3d at 279. The Court held that the defendant had 16
committed extortion because his “purpose in using violence 17
against his victims was to acquire the market share held by 18
[his competitors] and to exploit it for his own enrichment.” 19
Id. at 283. The Court expressed disagreement with the Ninth 20
Circuit’s holding in United States v. McFall, 558 F.3d 951, 21
957 (9th Cir. 2009), that “[i]t is not enough to gain some 22

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18
speculative benefit by hindering a competitor.” 671 F.3d at 1
283 n.4. 2
Here, the evidence showed that a positive 3
recommendation by the General Counsel would have increased 4
the chances the Comptroller would issue a Commitment; a 5
Commitment was necessary for FA Tech III to receive a 6
Pension Fund investment; and an investment would have 7
resulted in management fees for FA Technology and profit for 8
Sekhar, as a managing partner. And the evidence showed that 9
Sekhar understood that line of causation. Accordingly, 10
there was sufficient evidence to conclude that Sekhar, in 11
order to profit, attempted to exercise the General Counsel’s 12
property right to make recommendations. The government was 13
not required to prove that Sekhar would actually have been 14
enriched had he succeeded in exercising that right. 15
Opportunities have value. 16
17
CONCLUSION 18
For the foregoing reasons, we affirm the district 19
court’s judgment of conviction. 20

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