10 October 2019

A Threat To Sue For An Actual Personal Injury Is Not Extortion In Colorado

I see this issue come up from time to time, so it is worthwhile to note a published decision of the Colorado Court Of Appeals on point: People v. Knox, 2019 COA 152, ¶¶ 2-4 and 48-51. The ruling says in the pertinent parts (emphasis added) that:
¶ 2 On November 26, 2014, Amber Diedrichs-Giffin was turning left in her car when she heard a “bang” as Knox forcefully placed her hands on the hood of the car. When Diedrichs-Giffin asked if Knox was okay, Knox responded that her “leg kind of hurts.” . . . Diedrichs-Giffin provided her insurance and contact information; however, Knox declined to contact law enforcement officials and asked for “weed” or money, stating, “We could settle this now.” Knox walked away — seemingly uninjured — after Diedrichs-Giffin directed Knox to contact Diedrichs-Giffin’s insurance company.  
¶ 3 Shortly afterward, Diedrichs-Giffin called 911 to report the accident, expressing her uncertainty about who was at fault. The dispatcher told her that, without an injury, she did not need to file a report; but if Knox contacted law enforcement officials later, they could refer to the recording of Diedrichs-Giffin’s call.  
¶ 4 Later the same day, Knox sent Diedrichs-Giffin a series of text messages asking to settle matters outside of court. The particular text message underlying the eventual criminal extortion charge and conviction stated:  
"Hey amber, this is Ashley the young lady, u hit..i have a little amount of time if i want to pursue, court action…im already on pain management and am going through hard times like everyone..im sure..id rather u help me out we agree to a one time feesable amount. We can even sign something if u want..to keep out of a long court proceeding going back to court over several months, insurance goin up, and my medical bills, since im in and out of hospital already[.] Let me know, if that works for you, or u would rather draw it out in court. Thanks[.]" 
Diedrichs-Giffin did not respond to the message and testified that she perceived it as an attempt to “make a one-time deal with me so that way we didn’t have to pursue it in court.” 
. . . 
¶ 48 Knox contends, the People concede, and we agree that Knox’s threats of litigation to cause “economic hardship” were insufficient to prove her guilty of criminal extortion.  
¶ 49 As pertinent here, a person commits criminal extortion if  
"(a) The person, without legal authority and with the intent to induce another person against that other person’s will to perform an act or to refrain from performing a lawful act, makes a substantial threat to . . . cause economic hardship . . . to . . . the threatened person or another person; and  
(b) The person threatens to cause the results described in paragraph (a) of this subsection (1) by:  
(I) Performing or causing an unlawful act to be performed . . . ." 
[Colorado Revised Statutes] § 18-3-207.  
Thus, as a Colorado federal district court decision explained, proof of extortion requires the prosecution to prove 
"(i) a person, lacking legal authority to do so, ma[de] a threat to . . . cause economic . . . harm to the victim, with the intent of coercing the victim to perform an act or refrain from performing an act, and  
(ii) the person propose[d] to do so by resorting to an unlawful act or by threatening to invoke action by a third party, such as law enforcement." 
Witt v. Snider, Civ. A. No. 16-cv-01303-MSK-CBS, 2017 WL 2215252, at *5 (D. Colo. May 19, 2017).  
However, making a threat to do something while lacking express legal authority is not tantamount to committing an unlawful act. See Whimbush v. People, 869 P.2d 1245, 1249 (Colo. 1994). The defendant must have made a threat to commit an unlawful act. Id.  
¶ 50 Because no Colorado court has addressed this issue, we look to the decisions of other jurisdictions that reached this conclusion. As both parties mention, the overwhelming majority of jurisdictions addressing the unlawful act requirement in the federal analogue conclude that “[a] threat to litigate, by itself, is not necessarily ‘wrongful’ within [this context]. After all, under our system, parties are encouraged to resort to courts for the redress of wrongs and the enforcement of rights.” United States v. Pendergraft, 297 F.3d 1198, 1206 (11th Cir. 2002); see Deck v. Engineered Laminates, 349 F.3d 1253, 1257–58 (10th Cir. 2003); Rendelman v. State, 927 A.2d 468, 481 (Md. Ct. Spec. App. 2007), aff’d, 947 A.2d 546 (Md. 2008); see also Zueger v. Goss, 2014 COA 61, ¶ 42, 343 P.3d 1028, 1038 (Colo. App. 2014) (“Settlement implies a compromise; it does not establish conduct against one’s will.”).  
¶ 51 Accordingly, Knox’s threat to sue Diedrichs-Giffin did not suggest that she intended to act unlawfully; instead, she gave Diedrichs-Giffin the option to settle her alleged claim to avoid litigation. We join other jurisdictions in concluding that the threat of litigation does not constitute criminal extortion. Accordingly, we vacate Knox’s conviction for criminal extortion.
Footnote Regarding The Other Charges And What This Means To The Actual Defendant

Criminal extortion, of which Knox was acquitted on appeal, is a class four felony. Criminal extortion is an offense that is sometimes subject to enhanced sentences related to crimes of violence, but only if the defendant "(A) Used, or possessed and threatened the use of, a deadly weapon; or (B) Caused serious bodily injury or death to any other person except another participant," which are factors that weren't present in this offense, so it was only an ordinary non-violent class 4 felony.

Knox was still found guilty of two counts of false reporting to authorities (which were not appealed), which are class 3 misdemeanors defined at Colorado Revised Statutes § 18-8-111 under the facts in question, and three counts of attempting to influence of public official, which are class 4 felonies defined at Colorado Revised Statutes § 18-8-306, which were appealed but upheld on appeal.

This was based upon the fact that six days after the accident she called 911 and said that she had been hit by the other person's car in an accident that had just happened, and then told two separate police officers at two separate times the same thing, in an effort to get the police to charge the driver with a hit and run offense.

But she confessed that she had lied after being confronted with the email that was the basis of the criminal extortion claim from six days earlier, and the timed transcript of the 911 call of the driver six days earlier, who had called 911 after Knox left to determine if the accident had to be reported to the police to guard against being charged with a hit and run offense.

Knox's attorneys had argued on appeal that police officers didn't count as public officials within the meaning of that particular statute (a not completely implausible argument in the context of how that word was used in deferent parts of criminal code that was nonetheless ultimately rejected by the Court of Appeals), that the false reporting charge and the attempting to influence charge were duplicative offenses involving the same conduct (the Court of Appeals held that they were not duplicative because they involved different kinds of intended outcomes), and that there should be one offense for the entire continuous period of her cover up rather than one for each separate incident of lying to different person, one after the other. These contentions were rejected.

Thus, because of the Court of Appeals ruling affirming that each of these five convictions are separate crimes for which she may be convicted separately, Knox will have not one felony conviction, but three felony convictions (in either case in addition to two misdemeanor convictions which were not appealed), on her criminal record as a result of this extended episode of conduct arising from the same prosecution and incident. 

In Colorado, three felony convictions arising from the same trial, and the same episode of criminal conduct, still only counts as one "strike" for habitual offender statutes as currently written, but this wouldn't necessarily be true in the face of a prosecution for a federal crime, or a prosecution for a crime in another state, or under a Colorado habitual offender statute enacted at some time in the future, where she might face some form of recidivist sentencing enhancement as a three strikes felon.

In Colorado, a class 3 misdemeanor, the least serious misdemeanor classification, is ordinarily punishable by up to six months in jail and/or a $50 fine, plus court costs and restitution, if any. This can be reduced by 50% for good behavior. A class 3 misdemeanor does not carry many collateral consequences related to that conviction, and alternative sentences, such as probation, are quite common for class 3 misdemeanors.

In Colorado, a non-violent, non-sex offense, non-drug class 4 felony is generally punishable by a definite term of imprisonment of two to six years (which may be reduced by up to 50% for good behavior while incarcerated), followed by three years of parole, and/or a fine of $2,000 to $500,000, plus court costs and restitution, if any. A class 4 felony conviction has many collateral consequences in terms of matters such as eligibility for gun ownership, eligibility to enter many licensed occupations (even as a notary public) or the military, makes a non-citizen (even one on a documented visa in good standing) deportable, is ineligible to be punished by a fine without imprisonment for a felony, can give rise to habitual offender sentencing for later convictions, etc. 

Thus, with three felony convictions, she could face $6,000 to $1,500,000 in fines (if the judge chooses to impose them), plus court costs and restitution, if any, or the court could chose to impose no fine and only court costs and restitution, if any.

If she were sentenced to serve the sentences concurrently, she would face two to six years in prison, which could be reduced to one to three years in prison with good behavior, followed by three years of parole. 

But, if she were sentenced to serve the sentences consecutively, she would face six to eighteen years in prison, which could be reduced to three to nine years in prison with good behavior, followed by three years of parole. 

The sentence can't be more severe, however, following the appeal, than it was in the original sentencing hearing following the convictions.

When convictions are based on the same act or series of act arising from the same criminal episode, the sentences imposed must run concurrently, unless there are multiple victims involved, in which case consecutive sentences may be imposed in the discretion of the court, pursuant to Colorado Revised Statutes § 18-1-408(2)-(3). So, the two incidents in which a misdemeanor false reporting and felony four obstruction of justice convictions were obtained for the same statements, must each have concurrent sentences, and all five offenses of conviction must be served concurrently, unless the judge finds that the 911 dispatcher, and the two respective police officers were multiple victims of these crimes and exercised his or her discretion in the original sentencing hearing to impose consecutive sentences. The fact that this wasn't raised as an issue on appeal suggests that this probably didn't happen. The case for there being multiple victims would have been much stronger if the criminal extortion conviction had been upheld, and we don't know if that sentence was to be served consecutively or concurrently.

Thus, the three felony convictions v. one felony conviction part of the appellate decision was really only pertinent to the collateral consequences of the conviction, to any collateral attack on the convictions (since she would have to invalidate all three convictions to reduce her sentence if irregularities were ever alleged with respect to any of them), and to the fine that could be imposed (if a fine was imposed at all in the first place).

So, instead of serving up to three months in jail (if she has good behavior while incarcerated) and possibly up to $100 of fines, in addition to court costs and restitution, if any, Ms. Knox will have to serve one to three years in prison (if she has good behavior while incarcerated), followed by three years of parole, and possibly up to $6,000 to $1,500,000 of fines, plus court costs and restitution, if any, and significant collateral consequences of the conviction. She would probably also be eligible in either case for a probation sentence, in lieu of incarceration or parole, or for a fine, in lieu of incarceration and parole, if the judge deemed fit.

The only issue remaining in the case that would be worthy of considering for a further appeal to the Colorado Supreme Court would be the ruling that the count of attempting to influence a public official was allowed in these circumstances (the decision on whether false reporting and attempting to influence a public official were duplicative couldn't escape all three felony counts because she was convicted of only two false reporting counts, arising from separate incidents, but was convicted of attempting to influence a public official in one count arising from an incident in addition to the two false reporting counts. But, the fact that two separate panels of the Colorado Court of Appeals reached the same conclusion on this issue, albeit with somewhat different reasoning, doesn't make it an attractive issue for the Colorado Supreme Court to consider.

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