Review of the Federal Crime of Blackmail and Extortion
Blackmail is also commonly known as extortion which is described as making threats to do something, or disclose something, that will cause harm to the victim of the threat.
This threat of potential harm is done with the intent to obtain something of value, which is often money or some other type of benefit.
Put simply, blackmail and extortion is the illegal conduct of demanding money from someone to not report something, such as potentially embarrassing information about the person, or even criminal behavior.
18 U.S.C. § 873 lays out legal penalties for a someone who demands or receives money, or anything of value, made under threats of informing, or for not informing, which violates federal laws.
The term blackmail is often used in many contexts, but most typically involves someone knowing a secret about someone else and wanting something to stay quiet about it.
While this is generally true, the federal crime of blackmail requires specific elements to be met, which will be discussed in detail in the following text.
It is important to contact an experienced lawyer if you are facing a federal blackmail charge.
Our Los Angeles criminal defense lawyers will review the laws more closely below.
What is the Legal Definition of Blackmail?
Blackmail under federal law is found at 18 U.S.C. § 873 under a fairly short definition which describes it as:
- “whoever, under a threat of informing, or as a consideration for not informing, against any violation of any law of the United States, demands or receives any money or valuable thing...”
The important distinction for a federal blackmail charge is that the secret at issue relates to the violation of the law, which is a misdemeanor offense..
If someone knows that someone else committed a crime and offers to stay quiet about it for a sum of money, then that person has committed blackmail under federal law.
A common blackmail or extortion case pursued by a federal prosecutor is related to interstate communications, defined under the related statute 18 U.S.C. § 875.
This federal offense involves threats of harm, either economic or physical, that is accomplished by use of wire transmissions, like email, text messages, or other interstate or foreign communications.
This threatened harm could be the victim's reputation or to any information that would negatively impact their business.
What Are the Related Federal Crimes?
There are only specific forms of extortion and threats that will be prosecuted under federal law, rather than state-level prosecution.
There are several related crimes to the federal crime of blackmail or extortion and are listed under Chapter 41 of Title 18 of the U.S Code, they are:
- 18 U.S.C. § 871 – threats against Presidents and successors,
- 18 U.S.C. § 872 – extortion by United States employees,
- 18 U.S.C. § 874 – kickbacks from public works employees,
- 18 U.S.C. § 875 – interstate communications,
- 18 U.S.C. § 876 – mailing threatening communications,
- 18 U.S.C. § 877 – threatening communications from foreign country,
- 18 U.S.C. § 878 – threats and extortion against foreign officials,
- 18 U.S.C. § 879 – threats against former Presidents and others,
- 18 U.S.C. § 880 – receiving the proceeds of extortion.
These crimes cover a wide range of criminal acts and also have varying punishments. A plea to a lesser crime from the above list might be available if you are negotiating a plea deal to a more serious criminal charge.
Other lesser crimes can give a jury an alternative choice to allow a defendant to avoid a conviction on more serious charges.
What Are the Penalties for 18 U.S.C. § 873?
Blackmail is a federal misdemeanor charge, which means that the maximum possible penalty upon conviction is:
- up to one year in a federal prison,
- a fine as ordered by the court, or both.
Of all the crimes listed in Chapter 41 of Title 18 of the U.S. Code, blackmail has the short possible criminal sentence.
Extortion under 18 U.S.C. § 872 for $1,000 or less is the only other charge listed in this chapter with a maximum sentence of one year in jail and a fine.
Other charges listed in this chapter have maximums that go as high as 20 years in prison upon conviction.
If you are charged with mailing threats of any kind listed above, then you will likely face a 20-year maximum under sections 875, 876, 877, and 878.
Interestingly, you face lower maximums for making threats against the president or any former president. Charges under sections 871 and 879 have five-year maximum sentences.
Readers should note, however, the actual sentence will always depend on the specific factors listed under the United States Sentencing Guidelines, and others under 18 U.S.C. § 3553(a).
A defendant is typically subjected to broad discretion that is afforded to a federal sentencing judge who will normally consider the following:
- defendant's criminal record,
- mitigating factors related to their character and background.
It might be possible to receive a sentence that doesn't include prison time through sentencing alternatives, such as community service, drug treatment, or home confinement.
What Are Some Defenses to Blackmail?
A federal criminal investigation into 18 U.S.C. § 873 blackmail and extortion is often a complex issue that requires experienced legal representation early in the case process.
A prosecutor is required to demonstrate that the defendant in a blackmail charge intentionally sought money or some other item of value to stay quiet about the criminal activity of another.
One common defense against a blackmail charge is that of intent. A prosecutor must show that the defendant intended to blackmail the victim.
If the threat in unreasonably believed or is not backed by any real threat of harm, there is no blackmail under federal law.
Blackmail can occur during a discussion, so there may be a lack of evidence. If there is a lack of physical evidence, such as letters or text messages, this can be a defense and grounds for dismissal.
If the defendant can demonstrate that they were incapacitated, legally insane, or intoxicated at the time of the alleged blackmail, then this might serve as a defense to the element of intent.
The facts and circumstances of each case will determine what defenses are available. If the secret in question is not related to the violation of U.S. law, then that can serve as a defense to federal blackmail charges.
This does not mean that the action could be illegal under state law, as there are various state laws related to blackmail and extortion. Another potential defense strategy includes the possibility of:
- Negotiating with the federal prosecutor on a pre-indictment resolution,
- Negotiate a plea deal after the criminal filing, or
- We can litigate your case in a federal jury trial if necessary.
After we closely review all the specific details of your blackmail or extortion case, then we can help guide you through the process and determine what legal steps we need to take to protect your freedom.
Eisner Gorin LLP is based in Los Angeles County and represents clients who are facing federal criminal charges throughout the United States. You can contact out law firm for an initial consultation at (877) 781-1570, or fill out our contact form.