Petition — Mannella v. United States

KK

| Supreme Court, U. &

> FILED

+ MAY 6 1976

IN THE

Supreme Court of the United States

Term, 1976

No. 75-1618

VINCENT MANNELLA,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

H. ARNOLD GEFSKY, Esqume,

SAMUEL J. REICH, Esquire,

MARK GLOSSER, Esquire,

Counsel for Petitioner.

Gersky, Reicu & Reicn,

1322 Frick Building,

Pittsburgh, Pennsylvania 15219,

412-391-6222.

Sr nner

BATAVIA TIMES, APPELLATE COURT PRINTERS —b

EDWARD W. SHANNON, SENIOR REPRESENTATIVE

HAROLD L. BERKOBEN, REPRESENTATIVE

1701 PARKLINE OR., PITTSBURGH, PA. 18287

412-081-7468

| MICHAEL RODAK JR, eee

v4

\

INDEX.

Page

I OF GD 0 3.06 end cccneacsceucesecessias l

EY 6X44 RAGOH0Rb- 606 nd deds Komen eds eodiween 2

Statement of Questions Presented for Review ........ 2

Constitutional and Statutory Provisions Involved ..... 2

I Sr Ge I 6 hick oon skein dinrediiwenes 4

Reasons for Granting the Writ..................008. 7

I. The trial Court’s charge appears to have given

the Hobbs Act a statutory construction contrary to

prevailing decisions of this Court............... 7

Il. In holding that the Hobbs Act defines and

prohibits the crime of attempted extortion, the

lower Court has decided an important question of

federal law which has not, but should be, settled by

GD an Kuk s'seneakasinedenesesacncseweeens 11

III. In holding that 28 U.S.C. § 515 authorizes

the commissioning of Strike Force attorneys who

may appear before grand juries and prosecute

federal cases, the lower Court decided an important

question of Federal Law which has not, but should

be settled by the honorable Court .............. 12

SR i nkecétcdcawhdendeeccensneeceseseuesenee 13

Appendices:

A—Judgment of the United States Court of Ap-

peals for the Third Circuit, Entered April 7, 1976 14

B—Memorandum Opinion Dated October 29,

PE hci s 66eseesednenhsedubadeeeeneuneneeenys 16

C—Letter Dated October 2, 1973 ............. 48

D—Memorandum and Order Dated May 19, 1975 50

II.

TABLE OF CASES.

Page

Rewis v. U.S., 401 U.S. 808 (1971) ................ 10, 11

U.S. v. Bass, 406 U.S. 336 (1971). .... ccc cece 10, 11

U.S. v. Enmons, 410 U.S. 396 (1973) .............. 10, 11

United States v. Mazzei, 521 F.2d 639 (3d Cir. 1975),

cert. denied, 96 S.Ct. 446 (1975) .................. y

STATUTES.

18 U.S.C. § 1951 (Hobbs Act).......... eae A TS.

28 U.S.C.:

I arta Cee ore rae es a Sd se tS 4, 12, 13

ened ere ee eee eat ts elt ee 2

CONSTITUTION.

United States Constitution, Commerce Clause, Article I,

ey te 2

IN THE

Supreme Court of the United States

osesoesne Term, 1976

Pe cocccce

VINCENT MANNELLA,

Petitic er,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

Petitioner, Vincent Mannella, prays that a Writ of Cer-

tiorari issue to review the Judgment of the United States

Court of Appeals for the Third Circuit entered in this case on

April 7, 1976 (Appendix “A” hereto).

Statement of Opinion

The trial Court (the United States District Court for the

Western District of Pennsylvania, the Honorable Barron P.

McCune, presiding) wrote an opinion dated October 29, 1975

(a copy of which is appended hereto and marked as Ap-

pendix “B’’) which to the best of petitioner’s knowledge has

not been printed by any official or unofficial reporter. The

United States Court of Appeals for the Third Circuit entered

a Judgment Order (no opinion) dated April 7, 1976, affirming

2

the Judgment of the District Court (a copy of which is ap-

pended hereto and marked as Appendix “A’’). Also, the trial

Court filed a memorandum and order dated May 19, 1975 (a

copy of which is attached hereto and marked as Appendix

“D”) denying petitioner’s Motion to Dismiss.

Jurisdiction

The Judgment of the Court of Appeals was entered on April

7, 1976 (See Appendix “A” hereto). This petition for cer-

tiorari was filed within thirty days of that date.

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(!).

Statement of Questions Presented

for Review

1. In a Hobbs Act prosecution may the requisite nexus to

Interstate Commerce be established by the fact that if the at-

tempted extortion had been carried out the assets of the vic-

tim, his company or his family would have been depleted?

II. Does a rejected extortion demand without more

establish a violation of the Hobbs Act where there is no actual

effect on Commerce?

Ill. Should petitioner’s Motion to Quash been granted

where the jetter of commission for the strike force « orney

did not specifically limit his authority as required the

Statute?

Constitutional and Statutory

Provisions Involved

1. The United States Constitution, Commerce Clause, Ar-

ticle 1, Section 8, Clause 3:

2.

3

“The Congress shall have the Power . . . to regulate

Commerce . . . among the several states . -

18 U.S.C. § 1951 (Hobbs Act):

“(a) Whoever in any way or degree obstructs, delays, or

affects commerce or the movement of any article or com-

modity in commerce, by robbery or extortion or attempts

- or conspires so to do, or commits or threatens physical

violence to any person or property in furtherance of a

plan or purpose to do anything in violation of this section

shali be fined not more than $10,000 or imprisoned not

more than twenty years, or both.

“(b) As used in this section—

(1) The term ‘robbery’ means the unlawful taking or

obtaining of personal property from the person or in

the presence of another, against his will, by means of

actual or threatened force, or violence, or fear of in-

jury, immediate or future, to his person or property, or

property in his custody or possession, or the person or

property of a relative or member of his family or of

anyone in his company at the time of the taking or ob-

taining.

(2) The term ‘extortion’ means the obtaining of

property from another, with his consent, induced by

wrongful use of actual or threatened force, violence,

or fear, or under color of official right.

(3) The term ‘commerce’ means commerce within the

District of Columbia, or any point in a State,

Territory, Possession, or the District of Columbia and

any point in a State, Territory, Possession, or the

District of Columbia and any point outside thereof, all

commerce between points within the same State

through any place outside such State, and all other

commerce over which the United States has jurisdic-

tion.

“(c) This section shall not be construed to repeal,

modify or affect section 17 of Title 15, sections 52, 101-

115, 151-166 of Title 20 or sections 151-188 of Title 45.

3. 28 U.S.C. § SIS:

“(a) The Attorney General or any other officer of the

Department of Justice, or any attorney specially appoint-

ed by the Attorney General under law, may, when

specifically directed by the Attorney General, conduct

any kind of legal proceeding, civil or crimina!, including

grand jury proceedings and proceedings before commit-

ting magistrates, which United States attorneys are

authorized by law to conduct, whether or not he is a resi-

dent of the district in which the proceeding is brought.

(b) Each attorney specially retained under authority

of the Department of Justice shall be commissioned as

special assistant to the Attorney General or special at-

torney, and shall take the oath required by law. Foreign

counsel employed in special cases are not required to

take the oath. The Attorney General shall fix the annual

salary of a special assistant or special attorney at not

more than $12,000.”

Statement of the Case

Appellant Mannella and co-defendants Rosa and Sica were

charged in a two-count indictment with conspiracy and at-

tempt to violate the Hobbs Act, 18 U.S.C. § 1951. The con-

spiracy count was dismissed during trial (R. 177a). All defen-

dants were found guilty by the jury on the attempt charge.

Appellant Mannella was sentenced to imprisonment for five

years and fined $2,500.00. Petitioner’s appeal was denied by

the Third Circuit Court of Appeals on April 7, 1976. The Ap-

pellate decision for co-defendant Sica is still pending. Co-

defendant Rosa has filed with the Third Circuit Court of Ap-

peals a petition for Rehearing which petition has not been

acted upon by the Court.

The substance of the charge is that Mannella and the other

defendants attempted to “shake down” a contractor for

$10,000 in connection with a park project for which he had

submitted a low bid. Essentially, the Government’s case con-

5

sisted of the testimony of Joseph Vaccarello, Jr.,' part-owner

of a family company which did landscaping and contracting

work under the name of Penn Landscape and Cement Work

(R. 95a). His testimony is summarized as follows.

On the morning of July 23, 1974, Vaccarello received a

telephone call at his place of business from Mannella’s office

requested that he come there immediately (R. 108a-109a).

Within ten minutes, Vaccarello arrived and went into Man-

nella’s private office where he was introduced by Mannelfa to

co-defendants Rosa and Sica (R. 109a-110a). Vaccarello was

asked if he submitted a bid for a park project in Monroeville.

When he acknowledged that he had, defendant Sica said, “We

represent several councilmen from the Borough of Monroe-

ville and you are a friend of Vince’s and Vince is a friend of

ours and we? have a problem with the job and we would like

you to get the job but we would like a donation.” (R. I] la-

112a). Vaccarello repiied that he would be willing to make a

donation “depending on what you want.” (R. 112a). When the

meeting adjourned, Vaccarello was told that Mannella would

contact him later (R. 114a; 216a). At this point, Vaccarello

testified he had no fear or apprehension.

Vaccarello testified that, later that same day, he received a

message from his answering service that Mannella had called.

Vaccarello testified that he met again with Mannella in Man-

nella’s private office at approximately 3:45 p.m. (R. 118a-

119a, 264a-265a). According to Vaccarello, only Mannella

and he were present at the second meeting. Mannella stated

that the donation was to be $10,000 in cash (R. 119a-120a).

Mannella said if the money was not paid, Vaccarello would

not get this work or other work in Monroeville (R. 127a-

' There appears to be a discrepancy in the spelling of “Vaccarello.” For

purposes of this Brief, the spelling is taken from the trial transcript.

* This appears to be an obvious error: as indicated elsewhere in the

transcript, Vaccarello was told: “You have a problem.” (R. 216a, 263a).

6

128a). When Vaccarello protested the amount, Mannella in-

dicated that the amount might be reduced to $5,000 (R. 120a-

121a).

Vaccarello did not pay any money. Notwithstanding his

refusal to pay, he was awarded the contract on July 31, 1974

and the contract was performed (R. 142a-145a; 204a-20Sa;

297a).

Vaccarello acknowledged that he had frequent contacts

with Mannella before and after July 23 and that, except for

this single instance, Mannella never asked him for money of

an improper nature, (R. 270a) in this matter, Mannella

showed no further interest in having money paid (R. 272a-

273a). when Vaccarello told Mannella that he had been

awarded the contract, Mannella replied that he was glad (R.

81a). Vaccarello stated that he considered this response to be

sincere (R. 271a). Vaccarello also acknowledged that he per-

formed the contract without interference by the defendants

(R. 297a).

Mannella, testifying on his own behalf, was the major

defense witness. He gave the background of his career as a

professional engineer which included providing services for

various municipalities (R. 500a-504a). However, he testified

that he has had no connection, officially or unofficially, with

the Borough of Monroeville (R. 504a). He testified that

defendant Rosa was a long-time client of his engineering

firm. On the morning of July 23, Rosa and Sica came to his

office unannounced and asked him if he knew Joseph Vac-

carello (R. 507a-508a). Mannella said he did and upon

request called Mr. Vaccarello to come to his office. It was ex-

plained to Mannella that Vaccarelio had a problem with the

contract primarily because of his time clause and a zoning

dispute involving Nick Vaccarello. According to Mannella,

his purpose was to help his friend and business associate, not

to hurt him (R. 507a-508a).

7

After Vaccarello arrived, there was a discussion. Mannella

testified that he did not pay close attention to the entire con-

versation but that he did participate in part (R. 509a-510a).

Near the end of the meeting, there was mention of a $7,500

donation which surprised him. He was disturbed that the

meeting had taken this turn and within minutes, the meeting

was over (R. 510a-51 la).

Mannelia insisted that there was only one meeting (R. 51 la-

517a). Various witnesses testified as to Mannella’s activities

during the afternoon when the second meeting allegedly took

place. George Mason, a Counci!man for one of the

Municipalities represented by Mannella, testified that shortly

after 3:30 p.m. on July 23, he was picked up by Mr. Mannella

at the “I” Gate of the Westinghouse Electric Plant in East

Pittsburgh. According to the evidence, it takes approximately

one-half hour to drive from Mannella’s office in Penn Hills to

the “I” Gate (E.g., R. 48la). Furthermore, Mr. Mason was

with Mr. Mannella from that time until shortly after 6:00

p.m.

REASONS FOR GRANTING THE WRIT

I. The trial Court’s charge appears to have given the

Hobbs Act a statutory construction contrary to prevailing

decisions of this Court.

The following facts merit special attention:

1. There was no money paid. The Monroeville Park con-

tract was awarded and performed without any interference by

the defendants (R. 18la, 297a).

2. The only theory of an affect on interstate commerce

which was submitted to the jury was the theory that if the ex-

tortion had been carried out, Joseph Vaccarello would have

$10,000 less for his work (R. 628a). The government had

8

produced various documents in the nature of invoices,

packaging lists, bills of lading, price paid quotes relating to

the park project (R. 192a-195a). All exhibits were dated after

the contract was awarded and at least weeks after the request

for a donation (R. 219a-220a). Apparently, most items were

purchased trom local companies and manufactured out-of-

state. Whatever significance this evidence had was not

clarified. In any event, a theory of interstate purchases was

not submitted to the jury, and the interstate commerce aspect

stands or falls on the “depletion of assets.”

3. On cross-examination by the government, Vaccarello

stated that if he had been required to pay the money, he could

have obtained it from himself, his family or his company (R.

296a). Thus, the depletion of assets involved is the depletion

of assets of Vaccarello, or his family or his company.

Discussion

Petitioner Manella contends that the evidence did not

establish nor did the trial Court properly submit to the jury

the issue of an effect on commerce. It is petitioner’s con-

tention that the interstate nexus required by the Hobbs Act is

not satisfied by evidence of a “depletion of assets” under

these circumstances.

In connection therewith, the charge of the Court is as

follows :

“And finally, if the extortion had been carried out in-

terstate Commerce would have been attected because

Vaccarello would have been deprived of $10,000.00

which he otherwise would have had available for ex-

penditures for materials for the performance of bids or

some other work and even the slightest effect on in-

terstate Commerce is sufficient upon which to base a

violation if, in fact extortion has been shown beyond a

reasonable doubt” (R. 628a) (See also 633a-634a).

9

Petitioner recognizes that the “depletion of assets” theory has

been upheld by various federal appeliate Courts (but not the

United States Supreme Court), including the Third Circuit

as most recently in United States v. Mazzei, 521 F.2d 639

(3d Cir. 1975), cert. denied, 96 ».Ct. 446 (1975).

Vaccarello testified that the money would come from him-

self, his family or business. If the commerce element is

satisfied because an individual, a family or a business may

have less money to spend on interstate commerce, then the

Hobbs Act applies virtually without limitation to all acts of

robbery and extortion. It is difficult, if not impossible, to con-

ceive of a situation where the victim of a robbery or extortion

(or of a conspiracy or an attempt) would not have less money

to spend. If this is the statutory test, then there is unlimited

federal criminal jurisdiction in areas formerly considered

within the primary law enforcement domain of local govern-

ment.

Thus, a conspiracy or attempt by three young people to

rob Joseph Vaccarello (or perhaps to pick his pocket) or to

hold up a gasoline station, or to snatch the purse of a

housewife going to a grocery store presumably fall under the

Act because such conduct would deplete the assets of the

victim and diminish the money available for transactions

“affecting” interstate commerce.

Perhaps it is too late in the day or the wrong day to argue

for a retrenchment of Federal criminal jurisdiction under the

Commerce Clause. Obviously, the Constitutional limits of the

Commerce Clause have been expanded immensely in the last

four decades. No doubt, the Founding Fathers (or even the

Constitutional scholars of four decades ago and less) would

be surprised to see an individual prosecuted under Federal

law because he committed a local act which “depleted the

assets” of a victim. Whatever validity remains of the doctrine

of federalism, the doctrine is threatened by such a trend.

10

The question seems to be not one of Constitutional

limitations, but of statutory interpretation. It is far from clear

that Congress intended to or did pass a statute which gave

Federal authorities extensive powers of prosecution in the

fields of robbery and extortion, particulariy, where the in-

terstate connection is nebulous and shallow. Three cases are

particularly relevant. Rewis v. U.S., 401 U.S. 808 (1971); U.S. v.

Bass, 404 U.S. 336 (1971); U.S. vs. Enmons, 410 U.S. 396

(1973).

In each of these cases, this Court deliberately refrained

from a broad application of three separate Federal criminal

statutes in the absence of an explicit manifestation of

Congressional intent. The decisions rest on two grounds:

1. Where there is ambiguity concerning the scope of

criminal statutes, such ambiguity should be resolved in favor

of lenity.

2. More pertinent to our discussion, the Court will not

presume that Congress has altered sensitive Federal-State

relationships and over extended limited Federal police

resources without a clear manifestation of intent. The En-

mons case is particularly interesting because it involved a

limitation on the Hobbs Act. In Enmons, the Court rejected

the Government’s contention that acts of violence in con-

nection with a legitimate labor strike violate the Hobbs Act.

In Enmons, the Court said:

“It (Government’s proposed interpretation of the

Statute) would cover all overtly coercive conduct in the

course of an economic strike, obstructing, delaying, or

affecting commerce. The worker who threw a punch ona

picket line, or the striker who deflated the tires on his

employer's truck would be subject to a Hobbs Act

prosecution.

“ “(U)nless Congress conveys its purpose clearly, it will

not be deemed to have significantly changed the federal-

state balance. Congress has traditionally been reluctant

to define as a federal crime conduct readily denounced

as criminal by the States . . . . (We) will not be quick to

assume that Congress has meant to effect a significant

change in the sensitive relations between federal and

state criminal jurisdiction.’ United States v. Bass, 404 U.S.

336, 349, 92 S.Ct. 515, 523, 30 L.Ed. 2d 488.” 410 U.S. at

p. 410-412

This language applies to the instant case as well.

Because of the extent to which the “depletion of assets”

theory threatens to invade traditional areas of local law en-

forcement pertaining to robbery and extortion, the potential

alteration of Federal-State relationships is far more extensive

than what was threatened by Rewis, Bass and Enmons.

Il. In hoiding that the Hobbs Act defines and

prohibits the crime of attempted extortion, the lower

Court has decided an important question of federal law

which has not, but should be, settled by this Court.

At the outset, it is important for the Court to address itself

to the Hobbs Act itself to determine from the language of the

Act what crime is established by Congress. It is respectfully

submitted that the crime established by the Hobbs Act is the

crime of affecting commerce or attempting to affect com-

merce by robbery or extortion or the commission or threat of

physical violence to any person or property in furtherance of

a plan or purpose to do anything in violation of the Act.

The issue of whether or not the Hobbs Act proscribes the

crime of attempted extortion concerns the meaning of the

statutory language, “attempts or conspires so to do.”

Throughout these proceedings, the defense has contended

that this language modifies or relates to“ . . . affects com-

merce . . .”? and not “extortion.” The government wants it

4 The statute applies to one who “obstructs, delays or affects” commerce.

For purposes of this brief, “affects” is employed as the broadest of the

terms.

12

both ways: it wants to amend the Act (and the indictment) to

prohibit attempts to obstruct commerce by attempted ex-

tortion. If “attempts” modified extortion,” this case fails

because there was no actual effect on commerce; if “attempts”

modifies “affects commerce,” this case fails because there

was no extortion, only an attempt.

The intent of the Act both grammatically and logically is

that Congress exercised its commerce power to the fullest by

prohibiting that conduct which in any way obstructs, delays

or affect commerce or the movement of any article or com-

modity in commerce or attempts in any way to obstruct, delay

or affect commerce or the movement of any article or com-

modity in commerce by extortion. The Act specifically

defines extortion. Attempted extortion is not made an of-

fense. In the case sub judice there was no act committed or

threatened of physical violence to person or property. To

reach economic fear as encompassed in the Act it is necessary

to use the definition of extortion contained in paragraph (b)

(2) of the Act. Vaccarello’s testimony goes only to economic

fear. Economic fear is contained (b) (2) of the Act. Attempted

extortion is not.

Ill. In holding that 28 U.S.C. §515 authorizes the

commissioning of Strike Force attorneys who may appear

before grand juries and prosecute federal cases, the lower

Court decided an important question of Federal Law

which has not, but should be settled by the honorable

Court.

Before trial, all counsel filed motions to quash because

grand jury proceedings were conducted by Strike Force at-

torneys. In recent months, the authority of Strike Force at-

torneys to conduct grand jury proceedings has been the

subject of extensive litigation, the results of which have, for

the most part, upheld their authority. And Judge McCune so

held. See generally, Appendix “D”.

13

Appellant submits that Strike Force attorneys may not ap-

pear before a grand jury because their letters of commission

do not comply with statutory requirements ‘See Appendix

“C” hereto).

28 U.S.C. §515 requires that the letter of commission

SPECIFICALLY describe the particular type of case which it

is authorized to investigate. This element of specificity is con-

spicuous by its absence in the letter of commission in the in-

stant case. Said letter gives Special Assistants a vague but for

all practical purposes, unlimited authority to investigate any

violation.

Not only do the lettegs of commission in the instant case not

comply with statutory requirements, but appellant submits

that Congress, in enacting the enabling legislation in 1906,

never intended to authorize the creation of independent field

offices thereafter by Special Assistants to the Attorney

General, each of whose authority is identical to a United

States Attorney. At best, as described in legislative history of

the Act, ail that Congress intended was to authorize the reten-

tion in special cases of highly skilled and knowledgable coun-

sel to represent the Government in special and/or complex

cases. For these reasons, petitioner submits that the Trial

Court improperly denied the Motion to Quash the indictment.

Conclusion

For these reasons, a Writ of Certiorari should issue to

review the judgment of the Court of Appeals for the Third

Circuit.

Respectfully submitted,

GEFSKY, REICH & REICH,

Arnold H. Gefsky,

Samuel J. Reich,

Mark L. Glosser,

Attorneys for Petitioner.

14

APPENDIX A.

Judgment of the United States Court of Appeals

for the Third Circuit, Entered April 7, 1976.

UNITED STATES COURT OF APPEALS

For the Third Circuit

No. 75-2383.

UNITED STATES OF AMERICA

vs.

FRANK JOSEPH ROSA a/k/a “JOE” JOSEPH

SICA, VINCENT MANNELLA,

Vincent F. Mannella, Appellant.

(D. C. Crim. No. 75-80).

Appeal from the United States District Court

for the Western District of Pennsylvania.

Argued April 6, 1976.

Before BIGGS, GIBBONS and HUNTER, Circuit Judges.

Blair A. Griffith, United States Attorney.

John W. Murtagh, Jr., Special Attorney, United States

Department of Justice.

James E. Roark, Asst. United States Attorney Suite 816,

Chatham Center Office Building, Pittsburgh, Pennsylvania

15219.

Attorneys for Appellee.

15

Appendix A—Judgment of the United States Court

of Appeals for the Third Circuit, Entered

April 7, 1976.

Samuel J. Reich, Esquire.

Mark L. Glosser, Esquire, 1322 Frick Building, Pittsburgh,

Pennsylvania 15219.

Attorneys for Appeliant Vincent Mannella.

JUDGMENT ORDER.

In this appeal from a judgment of sentence following con-

viction for violating 18 U.S.C. §1951 defendant Mannella

contends (1) that the Court erred in charging the jury that

there would be a sufficient relationship to inierstate com-

merce if they found an attempt to deprive Vaccarello of

$10,000 which would otherwise be available for his work, (2)

that $1951 does not proscribe attempted extortion, (3) that

the Court failed to charge a theory of defendant’s case, (4)

that the Court erred in refusing to relieve him of prejudical

joinder; and (5) that the case was presented to the grand jury

by improperly authorized Strike Force attorneys. We find no

error.

It is ORDERED and ADJUDGED that the judgment of the

district Court is affirmed. No cost.

By the Court,

JOHN J. GIBBONS,

Circuit Judge.

Attest,

THOMAS F. QUINN,

Clerk.

Dated: Apr. 7, 1976.

16

APPENDIX B.

Memorandum Opinion Dated October 29, 1975.

IN THE UNITED STATES DISTRICT COURT

For the Western District of Pennsylvania

UNITED STATES OF AMERICA,

VS.

FRANK JOSEPH ROSA, a/k/a “JOE”, JOSEPH

SICA, and VINCENT MANNELLA,

Defendants.

Criminal Action No. 75-80.

MEMORANDUM AND ORDER.

BARRON P. McCUNE, District Judge.

October 29, 1975.

In a two count indictment the United States charged defen-

dants Frank Joseph Rosa, Joseph Sica and Vincent Mannella

with violations of the federal conspiracy statute, 18 U.S.C.

$371 (Count 1) and the Hobbs Act, 18 U.S.C. § 1951 (Count

2). The conspiracy count was dismissed on motion of defen-

dants during presentation of the government's case. Trial

proceeded under the charge set forth in the second count of

the indictment.

At trial, the government’s chief witness was Joseph

Vacarello, Jr., who was part owner of a tamily business which

did landscape contracting work under the name Penn Land-

scape and Cement Work. Vacarello testified that on the

morning of July 23, 1974, he received a phone call at his place

17

Appendix B—Memorandum Opinion Dated October 29, 1975.

of business from the office of Vincent Mannella requesting

that he come up to Mannella’s office, which was located near-

by. Mannella, who was a business acquaintance of Vacarella,

was the founder and president of Mannella Engineers, a

private consulting engineering firm.

Vacarello testified that pursuant to the phone call, he went

to Mannelila’s office where Mannella introduced him to

defendants Rosa and Sica, who presented themselves as

representatives of unnamed members of the Monroeville

Borough Council. At the meeting Vacarello was asked if he

had submitted a bid on behalf of Penn Landscape for the con-

struction of a park in Monroeville Borough. When he

acknowledged that he had one of the defendants told him:

“We would like to see you get the job but we would like a

donation.” Vacarello was not alarmed since this was not an

unusual demand in his line of work. He was also told that he

had a problem but he was not made aware of just what that

problem was at the morning meeting. He was merely told that

Mannella would contact him later that day.

According to Vacarella’s testimony, he received a message

from his answering service during the afternoon of the same

day that Manella had called. He returned the call whereupon

Mannella requested him to come to his office again.

Vacarello testified that he did so.

Upon his arrival, and while only he and Mannella were

present, Vacarello testified that Mannella told him that the

“donation” was to be $10,000.00. His testimony was that he was

also told that if he refused to make the donation, he would

not get the Overlook Park project on which he was low bid-

der, or any other work from the Borough of Monreoville.

Vacarello also testified that he became aware of his

“problem” at this afternoon meeting with Mannella when

Mannella showed him a copy of the minutes of the Borough's

18

Appendix B—Memorandum Opinion Dated October 29, 1975.

Recreation Committee which indicated that he would not be

awarded the Overlook Park project.

The jury convicted all three defendants.

Now before the court are post trial motions filed on behalf

of defendants Rosa and Sica. Those motions are:

1. Motions in arrest of judgment under Rule 34, Fed. R.

Crim. P., in support of which defendants advance two prin-

cipal arguments, to wit,

(a) that Count II of the indictment fails to charge an in-

dictable offense, and

(b) that the offense of which defendants stand con-

victed is not the offense charged in the indictment;

2. Motions for judgment of acquittal under Rule 29, Fed.

R. Crim. P., in support of which defendants argue that the

evidence is insufficient to sustain the convictions as a matter

of law, and

3. In the alternative, motions for new trial under Rule 33

alleging trial errors, including, inter alia:

(a) denial of defendants’ repeated motions for

severance under Rule 14, Fed. R. Crim. P., for relief from

prejudicial joinder;

(b) the failure of the Court to charge the jury as re-

quested by defendants in certain’ of their points for charge;

(c) errors within the Court’s charge;

(d) error in admission of certain evidence; and

(e) failure to declare a mistrial after improper closing

argument by the prosecution.

After the careful consideration of the trial record, the

briefs of counsel and the points raised at oral argument on the

19

Appendix B—Memorandum Opinion Dated October 29, 1975.

motions, it is the opinion of this Court that all motions should

be denied.

L.

The Indictment.

Count II of the indictment charges that defendants

“did unlawfully and willfully attempt to obstruct, delay

and affect interstate commerce . . . by extortion as the

term ‘extortion’ is defined in and by Section 1951, Title

18, United States Code; that is to say the said defendants

did wrongfully and unlawfully attempt to obtain

property of the value of $10,000 in the form of money

from Joseph Vacarello, Jr. as agent and owner of the

Penn Landscape and Cement Work with his consent in-

duced by wrongful use of fear in that said defendants did

threaten the said Penn Landscape and Cement Work and

Joseph Vacarello, Jr., with loss of the ‘Overlook Park’

project and other contracts unless and until . . . Joseph

Vacarello, Jr. paid the defendants the said amount of

money.”

For purposes of the motions now before the Court, three

aspects of the indictment bear emphasis. First, the indictment

charges defendants with an unlawful attempt to obstruct com-

merce “by extortion as the term ‘extortion’ is defined in and

by Section 1951,” which is as follows:

“The term ‘extortion’ means the obtaining of property

from another, with his consent, induced by wrongful use

of actual or threatened force, violence or fear, or under

color of official right.”

18 U.S.C. § 1951(b)(2). Secondly, when the indictment charges

the wrongful use of fear, it is fear of economic loss, (see

United States v. Varlack. 225 F.2d 665, 668 (2d Cir. 1955)), i.e.,

20

Appendix B—Memorandum Opinion Dated October 29, 1975.

the loss of contracts, as opposed to fear of physical force or

violence against either the intended victim or his property.

Finally, it should be remembered that the indictment does not

charge that commerce was affected by extortion; it does not

charge that the extortion was completed or that commerce

was affected in any way. It does not Charge that money was

actually obtained from the intended victim. What is charged

is that defendants attempted to obtain money by instilling in

the victim fear of economic loss if he refused to accede to the

extortionate demand.

With this background, we now consider defendants’ con-

tentions seriatim.

M1.

The Hobbs Act.

18 U.S.C. § 1951, the so-called Hobbs Act, provides:

“(a) Whoever in any way or degree obstructs, delays or

affects commerce or the movement of any article or com-

modity in commerce by robbery or extortion or attempts

or conspires so to do, or commits or threatens physical

violence to any person or property in furtherance of a

plan or purpose or purpose to do anything in violation of

this section [shall be guilty of an offense. |!"

It is defendants’ contention that while the above-quoted

section clearly proscribes any attempt to obstruct, delay or

atfect commerce (as commerce is defined in the Act,

§ 1951(b)(3)) by extortion (as extortion is defined in the Act,

§ 1951(b)(2) supra), the language of the Act does not make

criminal an attempt to obstruct, delay or affect commerce by

attempted extortion when there is no threat or use of physical

violence and the indictment charges extortion of the type

21

Appendix B—Memorandum Opinion Dated October 29, 1975.

defined in the Act.' Stated otherwise, defendants argue that

where, as here, the fear of economic loss is the only force or

fear charged in the indictment, then in order for an offense to

be made out, the attempted extortion must have been com-

pleted, i.e., the victim must have acceded to the unlawful de-

mand.

A. Is ‘Attempted Extortion’ a Hobbs Act Offense?

Since there is no federal common law of crimes, federal

criminal law is purely statutory. United States v. Berrigan, 482

F.2d 171, 185 (3rd Cir. 1973). Therefore, an attempt to com-

mit a federal offense is itself an offense only when the section

defining the offense specifically includes an attempt within its

proscription. United States v. Padilla, 374 F.2d 782, 787, n.7.,

(2nd Cir. 1967); United States v. Joe, 452 F.2d 653, 654 (10th

Cir. 1972), see also Rule 31(c), Fed. R. Crim. P.

Defendants urge that ihe only crimes established by

§ 1951 (a) are:

1. The obstruction, delay or affectation of commerce

or the movement of any article in commerce by

(a) robbery, or

(b) extortion;

2. The attempt “so to do,”

3. The conspiracy “so to do,” and

4. Committing or threatening physical violence to any

person or property in furtherance of a plan to do anything in

violation of § 1951.

' Defendants distinguish between extortion as the term extortion is

defined by § 1951(b)(2) and “what might be loosely referred to as another

extortion provision,” that is, committing or threatening physical violence

to person or property in furtherance of a plan to do anything in violation of

§ 1951(a).” See Def. Rosa's Br., at 3.

22

Appendix B—Memorandum Opinion Dated October 29, 1975.

They argue that the wording of the Act precludes an in-

terpretation which would make it an offense to attempt to ob-

struct, delay or affect commerce by attempted extortion.

The premise for this claim is that the phrase “attempts or

conspires so to do” as used in the Act refers to interference

with commerce and not to the word, extortion. The identical

argument was made in United States v. Tropiano, 418 F.2d

1069, 1082 (2d Cir. 1969) where the appellants argued that

“| T]he Hobbs Act requires proof of completed extortion and

if construed to cover attempted extortion, is constitutionally

void for vagueness.” The Second Circuit rejected this argu-

ment:

“The textual analysis of the statute would clearly em-

brace am attempt or conspiracy to interfere with com-

merce by extortion even though the attempt or con-

spiracy failed because the extortion was uncompleted.

United States v. Pranno, 385 F.2d 387, 389-390 (7th Cir.

1967), cert. denied, 390 U.S. 944 (1968).”

418 F.2d at 1083.

Defendants have submitted a ‘etter of three language ex-

perts which would support their grammatical argument. (See

Exhibit “B” to Defendant Rosa’s Brief). However, after con-

sideration of the Act’s legislative history, its construction by

the judiciary in previous cases and the arguments presented

here, we are convinced that it was clearly the intent of

Congress to punish attempted extortion.

|. Legislative History of § 1951.

The present § 1951 is derived from the “Anti-Racketeering

Act of 1934.” United States v. Varlack, supra, at 671. Section 2

of the 1934 Act, 48 Stat. 979-980, provided:

23

Appendix B—Memorandum Opinion Dated October 29, 1975.

“Sec. 2. Any person who, in connection with or in

relation to any act in any way or in any degree affecting

trade or commerce or any article or commodity moving

or about to move in trade or commerce—

(a) obtains or attempts to obtain, by the use of or at-

tempt to use or threat to use force, violence or coercion,

the payment of money or other valuable considerations

. or

(b) obtains the property of another, with this con-

sent, induced by wrongful use of force or fear, or under

color of official right, or

(d) conspires or acts concertedly . . . to commit

any of the foregoing acts: shall upon conviction thereof

be guilty of a felony.” (Emphasis added).

After the “restrictive’’ decision of the Supreme Court in

United States v. Local 807, 315 U.S. 521 (1942), the statute was

amended in 1946 to provide:

“Sec. 2. Whoever in any way or degree obstructs, delays,

or affects commerce, or the movement of any article or

commodity in commerce, by robbery or extortion shall

be guilty of a felony.

“Sec. 4. Whoever attempts or participates in an attempt to

do anything in violation of section 2 shall be guilty of a

felony.” (Emphasis added).

60 Stat. 420.

2 In United States v. Local 807, supra, the Court declared that certain

terrorist activities of various Teamsters Locals were excluded from the

scope of the 1934 Act. Congress, evidently believing that the exemption

given labor under the 1934 Act was too broad responded with the 1946

amendment which was designed to deter such labor practices. See United

States v. Varlack, supra, at 669, United States v. Callanan, 364 U.S. 587,

590-591 (1961).

24

Appendix B—Memorandum Opinion Dated October 29, 1975.

In 1948 the Act was codified and assumed its present form,

62 Stat. 793 c. 645.

“Nothing in the legislative history of either the 1946

amendment or the 1948 codification indicates a

congressional purpose to effect a change in the 1934 Act

in so far as it was aimed at conspiracies to extort or rob

or attempts to extort or rob which obstruct, delay or af-

fect foreign or interstate commerce. Moreover, the

reviser’s notes to Title 18, § 1951 indicate quite clearly

that the ‘changes in phraseology and arrangement’ were

designed solely to effect consolidation,”

United States v. Varlack, supra, at 672."

We believe that it is clear from § 1951’s legislative history

that Congress did not intend to eliminate an attempt to extort

from the Act’s prohibition. Defendants, citing numerous

sections of Title 18, contend that Congress is aware of how to

make an attempt a criminal offense which, they argue, was

not done here. However, we believe that the present case is

but another example of how draftsmen and revisers can

create problems as to the meaning of a statute without busy

legislators having any idea of what is occurring. See United

States v. Padilla, supra, at 788 (J. Friendly, concurring).

' The elimination of separate sections for conspiracies and attempts (§§ 3

and 4 of the 1946 Act) and their consolidation with section 2 to form

§ 1951(a) of the present Act was explained in H.R. 304 (80th Cong. Ist

Sess.) (1947), at A131:

“The words ‘attempts or conspires so to do’ were substituted for sec-

tions 3 and 4 of the 1946 Act omitting as unnecessary the words ‘par-

licipates in an attempt’ and the words ‘or acts in concert with another

or with others’ in view of Section 2 of the Title which makes any person

who participates in an unlawful enterprise or aids or assists the prin-

cipal offender, or does anything toward the accomplishment of the

crime, a principal himself.”

See also Callunan v. United States, 364 U.S. 587 (1961).

25

Appendix B—Memorandum Opinion Dated October 29, 1975.

Defendants seek to invoke the maxim that penal statutes

should be strictly construed. However, as stated in United

States v. Padilla, supra, at 787:

“But that canon ‘is not an inexorable command to over-

.ride common sense “and evident statutory purpose,’

United States v. Brown, 333 U.S. 18, 25 and does not

‘require that the Act be given the “narrowest meaning. “It

is sufficient if the words are given their fair meaning in

accordance with the evident intent of Congress.’ ”

{ United States v. Cook, | 384 U.S. 257, 262-263 (1966).

While we agree with the observation of Mr. Justice Stewart,

in his dissent in Callanan v. United States, supra, at 598 that

“the relevant section of the Act (§ 1951). . . is not a model of

precise verbal structure,” it is evident from the legislative

history that it was the intent of Congress to forbid attempted

extortion.

2. Judicial Interpretation of the Hobbs Act.

As previously mentioned the same argument presented by

these defendants was made in United States v. Tropiano, supra,

the Court, finding that the text of the statute “would clearly

embrace an attempt. . . to interfere with commerce by ex-

tortion even though the attempt failed because the extortion

was uncompleted.”

Furthermore, in the recent case of United States v. Starks,

515 F.2d 112 (3rd Cir. 1975) the Third Circuit Court of Ap-

peals stated:

“The Hobbs Act proscribes a number of separate of-

fenses: (1) robbery; (2) extortion, (3) attempted robbery

or extortion; and (4) conspiracy to commit robbery or

extortion.”

515 F.2d at 116. See also United States v. Jacobs, 451 F.2d 530,

534 (Sth Cir. 1971) cert. denied, 405 U.S. 955 (1972).

26

Appendix B—Memorandum Opinion Dated October 29, 1975.

Defendants, while conceding that the statement in Starks, if

deemed controlling is fatal to their argument, contend that

the above quoted statement is mere dicta since in Starks, the

attempted extortion had reached fruition. Furthermore,

defendants contend that neither the Fifth Circuit in Jacobs

nor the Third Circuit in Starks has truly analyzed the Hobbs

Act for the number of crimes created since neither case

proceeds to the substantive offense of committing or

threatening physical violence to any person or property in

furtherance of a plan to violate the Act. See Def.’s br. at 8.

Furthermore, defendants contend that the case at bar is

distinguishable from cases cited by the government for the

proposition that attempted extortion is a substantive offense.

See e.g., Hulahan v. United States, 214 F.2d 441, 445 (8th Cir.

1954), cert. denied, 348 U.S. 865 (1954); Anderson v. United

States, 262 F.2d 764, 769-770 (8th Cir. 1959), cert. denied, 360

U.S. 929 (1959), United States v. Green, 246 F.2d 155 (7th Cir.

1957), cert. denied, 355 U.S. 871 (1957); United States v. Mit-

chell, 463 F.2d 187 (8th Cir. 1972); United States v.

Shackelford, 494 F.2d 67 (9th Cir. 1974), cert. denied, 417 U.S.

934 (1974), United States v. Merry, 514 F.2d 399 (8th Cir.

1975), and United States v. lozzi, 420 F.2d 512 (4th Cir. 1970),

cert. denied, 402 U.S. 943 (1971).

Defendants argue that when the courts in the above cited

cases refer to a prohibition against attempted extortion, they

are not referring to extortion as defined by the Act, but rather

to extortion within the substantive offense in the Act, to wit:

“whoever . . .commits or threatens physical violence to any

person or property . . .,” see n.1 supra. Defendants argue

that since the threat of physical violence is extortion within

the Act, the substantive crime is committed by threatening

physical violence. Defendants argue that the same is not true

in cases of extortion as “defined by the Act” which they argue

27

Appendix B—Memorandum Opinion Dated October 29, 1975.

requires that the property be obtained in order to make out a

substantive offense.

We find defendants’ argument unpersuasive and hold that

the prohibition against attempted extortion applies to cases

where extortion “as defined by the Act” is charged. In our

view, to adopt defendants’ technical argument would ignore

the Congressional purpose discerned from the legislative

history of the Act.

B. Were Defendants Convicted of the Crime Charged by the

Indictment?

As a corollary to their principal argument that the Hobbs

Act cannot be interpreted to proscribe attempted extortion,

defendants argue that the crime of which they were convicted

is not the crime charged in the indictment. The assertion is

based on the language of the indictment which charges defen-

dants with an attempt to obstruct, delay or affect commerce

by extortion, as the term “extortion is defined in and by

§ 1951.” Defendants argue that under the definition of ex-

tortion contained in § 1951 (b)(2), the attempt to extort must

have been completed. Having rejected defendants’ argument

that attempted extortion is not a Hobb’s Act crime, a fortiori,

we find no variance between the charge in the indictment and

the charge of which defendants were convicted.

In short, we believe that defendants were tried only on

charges set forth in the indictment as required by Ex parte

Bain, 121 U.S. 1 (1887) and Stirone v. United States, 361 U.S.

212 (1960).

Ti

Joinder

Among the arguments raised by defendants in support of

their respective motions for new trial, only one requires ex-

28

Appendix B—Memorandum Opinion Dated October 29, 1975.

tensive discussion, i.¢., whether it was error to deny defen-

dants’ repeated* motions to sever for relief from prejudicial

joinder. We conclude that it was not.

Defendants were properly joined in a single indictment

since they were alleged to have participated in the same acts

or transactions. United States v. Starks, supra, at 116. The

question is whether they were properly tried together.

Primarily, tor reasons of economy of time in judicial ad-

ministration, the general rule has evolved that persons jointly

indicted should be tried together. This rule has particular

strength where, as here, one crime may be proved against two

or more defendants on a single set of facts or the same

evidence, United States v. Shuford, 454 F.2d 772, 775-776 (4th

Cir. 1971), and a defendant is not entitled to a separate trial

merely because it might offer him a better chance of acquit-

tal. See United States v. Wilson, 434 F.2d 494, 501 (D.C. Cir.

1970), 8 Moore’s Federal Practice, § 14.04] 1] at 14-14.2—14-

15. But notwithstanding the need for efficiency in judicial ad-

ministration, a joint trial is inappropriate if it sacrifices a

defendant’s right to a fundamentally fair trial. United States v.

Shuford, supra, at 776, United States v. Echeles, 352 F.2d 892,

896 (7th Cir. 1965).

Whether or not a severance is to be granted is within the

sound discretion of the trial court. Opper v. United States, 348

U.S. 84 (1954), United States v. Stitt, 380 F. Supp. 1172, 1176

(W.D. Pa. 1974), and involves a balancing’ of the interests of

* Defendants requested severance prior to trial, during the direct

examination of governments principal witness twice (Tr. 144), during

redirect examination of government's principal witness (Tr. 247, 264), at

the conclusion of the government's case in chief (Tr. 277) and on four other

occasions subsequent to having rested (Tr. 322, 323, 349, 363).

"In Byrd v. Wainwright, 428 F.2d 1017 (Sth Cir. 1970), the Court offers

guidelines for evaluating motions for severance based on a desire to offer

exculpatory testimony of a co-defendant.

ee

29

Appendix B—Memorandum Opinion Dated October 29, 1975.

the public in avoiding a multiplicity of litigation and the in-

terest of the defendants in obtaining a fair trial. 8 Moore’s

Federal Practice, 14.02[1], at 14-3. Furthermore, in cases of

prejudicial joinder, defendant has the difficult burden of

demonstrating that he is sufficiently prejudiced by the joinder

to-warrant severance. As we have said, the determination of

the elusive criterion of prejudice rests within the judicial

discretion at the trial level, see 8 Moore’s Federal Practice,

§ 14.02[ 1], and requires a case-by-case determination. United

States v. Echeles, supra, at 897.

In their post-trial motions defendants argue that the Court

abused its discretion in denying their motions to sever. First,

defendant Rosa contends that a joint trial allowed prejudicial

statements to be elicited by other counsel’s examination of the

principal government witness:

“The prejudicial nature of joinder to this dei cndant is

evident from the standpoint of the entire trial. For exam-

ple, the limited cross-examination of the government

witness conducted by counsel for Rosa was expanded by

counsel for other defendants to the extent that the wit-

ness was finally able, on re-direct examination by the

government, to state that he had prepared a written

memorandum of the events occurring on July 23, 1974,

for the reason that if he disappeared he would want

someone to know what had occurred that day. All evi-

dence of lack of fear had been explored and established

by counsel for Rosa.” (Def’s Br. at 16-17).

Second, defendants argue that they were prejudiced by the

comments of counsel for co-defendant Mannella to the effect

that Mannella would take the stand and testify forthrightly

and honestly. In their view, that statement necessarily alluded

to the fact that both Rosa and Sica chose to rely on the

presumption of innocence and elected not to testify.

30

Appendix B—Memorandum Opinion Dated October 29, 1975.

Third, Rosa contends that his joint trial with defendants

Mannella and Sica was inherently prejudicial because of an-

tagonistic defenses.

Fourth, both defendants contend that they were denied a

fair trial (a), by the Court’s refusal to allow the cases against

them to go to the jury after the government rested and both

Rosa and Sica had rested, but before Mannella presented his

defense and (b), by the Court’s refusal to charge the jury, as

requested, that they could not consider evidence which was

presented during Mannella’s defense in connection with the

charges against Rosa and Sica. Defendants argue that these

allegedly prejudicial errors could have been avoided by

separate trials.

Fifth, defendant Sica contends that a severance was

required when his counsel advised the court that co-

defendant Rosa would provide exculpatory testimony on

Sica’s behalf if either Rosa or Sica were granted a severance,

but that he refused to testify and relinquish his right to

remain silent during the joint trial.

Finally, Sica contends that his constitutional rights to a fair

trial, effective assistance of counsel, due process and com-

pulsory process to secure witnesses in his behalf were

abrogated by the court’s denial of his motions to sever.

We will deal with each of these arguments seriatim:

Defendant Rosa’s first contention is that cross-examination

of Vacarello by counsel for co-defendant Mannella opened

the door for the government, on redirect, to elicit answers

which would not have come out at a separate trial, and which

were prejudicial to Rosa.* We find no merit in this argument.

“See Transcript, 247-248.

- ee

31

Appendix B—Memorandum Opinion Dated October 29, 1975.

Whether or not Vacarello’s statement that he prepared a writ-

ten memo of the events which transpired on July 23, 1974,

(the date of the meeting) so that in the event “,!] would end

up missing | would have wanted that to be found. . ."”

would have come out at a separate trial is purely a matter of

speculation. But even assuming that it would not have, its ad-

mission was not so prejudicial as to warrant a severance. The

jury was instructed that defendants were not charged with any

physical force or violence. Furthermore, the mere fact that a

defendant would have a better chance of acquittal in a

separate trial is immaterial. United States v. Wilson, supra. The

test is whether “for each of the defendants to see the face of

Justice they must be tried separately.” DeLuna v. United

States, 308 F.2d 140, 155 (Sth Cir. 1962). In our view, the fact

that the jury was permitted to consider all of the evidence

against all of the defendants was entirely proper with the

cautionary instruction that each of the defendants was to be

separately considered."

Defendants cite DeLuna v. United States, supra, for the

proposition that comments by counsel for co-defendant Man-

nella to the effect that Mannella would testify forthrightly

and honestly necessarily prejudiced Rosa and Sica who elect

ed to remain silent as was their right, see United States v.

Housing Foundation, 176 F.2d 665 (3rd Cir. 1949). In the

DeLuna case, DeLuna and his counsin Gomez were charged

jointly in a two-count indictment with receiving and

facilitating the transportation and concealment of a narcotic

drug and with purchasing and acquiring a narcotic drug. Like

defendants here, both Gomez and DeLuna had their own at-

torneys and each attorney defended his own client as he saw

fit without regard to the interest of the other defendants. At

* Tr. 242-243.

"Tr. 389.

32

Appendix B—Memorandum Opinion Dated October 29, 1975.

the trial, after Gomez’s pretrial motion for severance had

been denied, DeLuna did not testify. Gomez, however, did

testify and blamed everything on DeLuna. According to

Gomez he was an “innocent victim of circumstances.”

“[H]is only connection with the narcotics was when he

and DeLuna were riding in Gomez’s automobile, DeLuna

saw the police coming, tossed a package (the narcotics) to

him and told him to throw it out the window. The police

saw Gomez throw the package.”

308 F.2d, at 141-142.

In closing, counsel for Gomez made repeated comments on

DeLuna’s failure to testify which were strenuously objected to

by counsel for DeLuna. Gomez was acquitted and DeLuna

convicted. In reversing DeLuna’s conviction the Court of Ap-

peals for the Fifth Circuit held that a defendant's con-

Stitutionally guaranteed right to remain silent, free from

prejudicial comment, applies to statements by a co-

defendant's attorney as well as statements by the prosecution

or the court. Furthermore, the court felt that instructions by

the court that no inference of guilt could be drawn from a

defendant's silence were inadequate to neutralize the effect of

those comments:

“But considering the head on collision between the two

defendants, the repetition of the comments, and the ex-

tended colloquy over the comments between the trial

judge and the lawyers, the imputation of guilt to DeLuna

was magnified to such an extent that it seems unrealistic

to think any instruction to the jury could undo the

prejudicial effects of the reference to DeLuna’s silence.”

308 F.2d at 154. Therefore, the court held that if an attorney’s

duty to his client requires him to draw the jury’s attention to a

possible inference of guilt from a co-defendant’s silence, the

eee

33

Appendix B—Memorandum Opinion Dated October 29, 1975.

trial judge must order the defendants tried separately to

avoid putting “Justice to the task of simultaneously facing in

opposite directions.” 308 F.2d at 143.

In our opinion DeLuna is not applicable to this case since

there was no effort by counsel for Mannella to draw the jury's

attention to a possible inference of guilt from the failure of

either Rosa or Sica to testify. While DeLuna clearly stands for

the proposition that counsel for Mannella could have done

so,” the fact is that he did not. Therefore, the statements com-

plained of are, in the words of United States v. Shuford, supra,

“an oblique reference to defendant's failure to take the

stand.” 454 F.2d at 779. In Shuford, the court specifically

rejected the argument of defendant that a statement of co-

defendant’s counsel, to wit: “Mr. Shuford answered the

question in a direct, forthright manner without evasion” 454

F.2d at 779, was prejudicial to defendant. Because defendants

here, like those in Shuford did not attempt to blame each

other, we conclude that defendants suffered no prejudice

from the comments complained of.

Furthermore, we agree with Judge Bell’s concurring

opinion in DeLuna where he says that if severance in advance

of trial were required where there is a representation to the

court that one co-defendant does not expect to take the stand

while another or others do expect to testify,

“This would eliminate joint trials, or vest in the

detendant the right to a mistrial during final arguments,

or, in the alternative, build in reversible error, all in the

* Judge Bell, in a concurring opinion, argues that counsel should be

limited in his comments to statements of the type made by counsel for Man-

nella here but should not be permitted to go so far as to infer a co-defen-

dant’s guilt trom his silence. See 8 Moore's Federal Practice, § 14.04) 3], at

14-40—14-48.

34

Appendix B—Memorandum Opinion Dated October 29, 1975.

discretion of the defendants. The law contemplates no

such end.”

308 F.2d at 156.

Finally, in the court's charge, the jury was instructed:

“The law never imposes upon a defendant in a criminal

case the burden or duty of calling any witnesses or

producing any evidence and a defendant need not testify

in his own defense and you may not draw any adverse in-

ference from his failure to do so, that is, the defendant

need not testify in his own defense and I repeat that you

may not draw any adverse inference against him from his

failure to testify."

Nor do we find that defendants’ claim that joint trial was

inherently prejudicial because of the antagonistic defenses of

co-defendants has any merit.

“If all that was necessary to avoid joint trial was a

showing of prejudice, there would be few, if any, multi-

defendant trials. This is because the very fact of joinder

is prejudicial to one or more of the defendants. Thus, the

following inherently prejudicial factors do not give rise

to severence: that another defendant is charged with

more serious offenses, that defenses of co-defendants are

generally antagonistic. . .”

8 Moore’s Federal Practice, §14.04[ 1], at 14-14.1. However,

even were we to assume that antagonistic defenses required a

severance, see e.g., DeLuna v. United States, supra, the

defenses in this case were not “antagonistic.’’ See United States

v. Baggett, 455 F.2d 476 (Sth Cir. 1972). We have carefully

reviewed the record and fully agree with the government's

contention that the net effect of Mannella’s testimony was to

exculpate all three defendants.

Tr. 368.

ence ee eee

35

Appendix B—Memorandum Opinion Dated October 29, 1975.

In contrast to DeLuna, where the defenses were mutually

exclusive, none of ‘the defendants here sought to exculpate

himself at a co-defendant’s expense. See Fields v. United

States, 370 F.2d 836 (4th Cir. 1967). We believe that the

statement of the court in United States v. Baggett, supra, at 478,

is also applicable here.

“All three defendants were charged as to the same

events. . . It would not be reasonable to require separate

trials merely because the ¢ ality of the defense of each

defendant might vary, if the defenses do not conflict.”

In answer to defendants’ fourth argument we believe that

both (1), the request to have the cases against Rosa and Sica

submitted to the jury prior to Mannella’s defense and (2), the

request to instruct the jury that they could not consider the

evidence presented in Mannella’s defense in connection with

the charges against Rosa and Sica were properly denied. In

effect, the granting of either request would have amounted to

a severence. The indictment in our view charged a joint at-

tempt against all three defendants. It was, therefore, proper

that the jury be permitted to consider all the evidence against

each of the defendants. The fact that certain portions of Man-

nella’s testimony may have corroborated the government’s

evidence is immaterial, United States v. Wilson, supra, at 501-

502, especially in view of the fact that the net effect of his

testimony in no way prejudiced the other defendants. The

court also instructed the jury that “you should consider each

of these defendants separately.”’'' The trial strategy employed

by counsel for Rosa and Sica whereby neither counsel par-

ticipated in any cross-examination of defendant Mannella

was just that, a trial strategy, and the defendants were not

denied an opportunity to do so.

'' 389—Tr.

36

Appendix B—Memorandum Opinion Dated October 29, 1975.

Finally, we reject Sica’s argument that a sevefance was

necessary when his counsel advised the court that Rosa would

testity on Sica’s behalf if a severance were granted. Sica

raised his contention that Rosa had testimony exculpatory as

to Sica, which Rosa would be willing to testify to in a separate

trial, after the United States had rested. The United States

submits that raising the issue, after the government had rested

its Case in chief was untimely in view of the fact that Rosa was

Sica’s son-in-law and the five month interval between in-

dictment and trial. However, since there is no evidence that

Rosa's willingness to testify at a separate trial became known

to Sica prior to that time, we believe it would be improper to

base our ruling on that ground since the court has a con-

tinuing duty at all stages of the trial to grant a severance if

prejudice should appear. Schaffer v. United States, 362 U.S.

511 (1960).

In support of his argument, defendant cites United States v.

Gleason, 259 F. Supp. 282 (S.D. N.Y. 1966), United States v.

Shuford, 454 F.2d 772 (4th Cir. 1971) and United States v.

Echeles, 352 F.2d 892 (7th Cir. 1965). In Gleason, after a

pretrial hearing the court granted severance in an income tax

evasion case when the moving defendant made a showing that

he needed the evidence of a co-defendant to establish his

defense of lack of guilty knowledge. In Echeles, the court

reversed the conviction of an attorney for suborning perjury

and impeding the administration of justice when it found that

denial of defendant’s motion for severance made him unable

to call his co-defendant to the stand for the purpose of getting

exculpatory statements into evidence which the co-defendant

had made in open court:

“At this juncture, we hold merely that, having knowledge

of Arrington’s record testimony protesting Echeles’ in-

nocence, and considering the obvious importance of such

ee MER ee oe oe

A ee

37

Appendix B—Memorandum Opinion Dated October 29, 1975.

testimony to Echeles, it is error to deny the motion for a

separate trial.”

352 F.2d at 898. In Shuford, the Court of Appeals for the

Fourth Circuit held it was error to deny the appellant's

motion for severance where “co-defendant had indicated to

the trial judge that he would testify if granted a severance and

had indicated the precise contents of the expected testimony

and its importance.”

Thus, in all three cases the defendant presented the trial

court with strong reasons demonstrating his need for the

testimony of a co-defendant.

In this case, on the other hand, defendant Sica merely

represented that Rosa would testify in a manner exculpating

Sica if either were severed. In United States v. Kahn, 381 F.2d

824, 841 (7th Cir. 1967) the court stated:

“The unsupported possibility that such testimony might

be forthcoming does not make the denial of a motion for

severance erroneous.”

Furthermore, the cases are consistent in their holding that a

defendant must make a showing that the testimony would be

exculpatory in effect. See, e.g., Smith v. United States, 385

F.2d 34, 38 (Sth Cir. 1967), Byrd v. Wainwright, 428 F.2d 1017,

1020 (Sth Cir. 1970), United States v. Kaufman, 291 F. Supp.

451 (S.D. N.Y. 1968). That showing was not made here.

IV

Sufficiency of the Evidence

In passing on the sufficiency of the evidence to support a

verdict of guilty in a criminal case, the court must view the

evidence and reasonable inferences that may be drawn

38

Appendix B—Memorandum Opinion Dated October 29, 1975.

therefrom in the light most favorable to the prosecution and

determine as a question of law whether there is substantial

evidence, either direct or circumstantial, to support the ver-

dict. Glasser v. United States, 315 U.S. 60, 80 (1942); United

States v. McClain, 469 F.2d 68, 69 (3rd Cir. 1972).

In the charge to the jury the court stated that

“In order to convict Rosa of the charge of attempted ex-

tortion you must find beyond a reasonable doubt that:

A. He intentionally went to Mannella’s office to par-

ticipate with Mannella in a plan to obtain money from

Vacarello by the use of threats, specifically, the threat

to deprive Vacarello of the award of the Overlook

contract or other contracts. No other offense is

charged and no other offense may be considered by

you.

B. That part of the plan was to be that Mannella was

to be the spokesman for him (Rosa) in relating the

amount of money to be paid and the threats allegedly

stated. And that the second meeting occurred. And

Mannella did demand the money and did make the

threat.

C. That Rosa intended the threat to be real, that is,

serious, and he intended that Vacarello would be

frightened by the threat.

D. That Vacarello had a reasonable basis upon which

to conclude that the defendants could have prevented

him from getting the Overlook contract or other con-

tracts from the Borough of Monroeville.

E. That Vacarello believed the threats, that is, that

he was anxiously concerned by them.

39

Appendix B—Memorandum Opinion Dated October 29, 1975.

F. That if the extortion had been carried out and the

$10,000.00 paid, interstate commerce would have been

affected.”’'*

The Court gave an almost identical charge as to what was

necessary to convict defendant Sica. (Tr. 386-387).Also, the

court gave a charge on aiding and abetting under 18 U.S.C.

§2.

Both Rosa and Sica now contend that the evidence was in-

sufficient as a matter of law to permit a jury to find guilt un-

der the court’s charge. We disagree.

The government's principal witness, Joseph Vav xrello, Jr.,

testified that he received a phone call on the morning of July

23, 1974, requesting that he come to Mannella’s office, which

he did. Upon his arrival, Mannella introduced him to defen-

dants, Rosa and Sica. Following the introductions, Vacarello

testified:

“A. ...Mr. Manella said, ‘Did you bid a job in

Monroeville?’ And I said, “Yes, I did.’ ‘Well, Overlook

Park?’ And I said, ‘Yes,’ Then Mr. Sica said, “We

represent several councilmen from the Borough of

Monroeville and you are a friend of Vince’s and Vince is

a friend of yours and we have a problem with the job and

we would like to see you get the job but we would like a

donation.’

Q. What did you say, sir?

A. I said, ‘Okay, fine, depending on what you

want.’ ”'8

Vacarello said that at the time he had no idea what type of

problem Sica was talking about nor what type of donation he

'2 Tr. 384-385, 404-405.

'" Tr. 64-65.

40

Appendix B—Memorandum Opinion Dated October 29, 1975.

was talking about. Later, Vacarello testified that he was told

that Vince would call him later, after which he left Man-

nella’s office. Later that same day, Vacarello testified that he

received a phone message from his answering service that

Mannelia’s office had called. According to his testimony, when

Vacarello returned the call Mannella requested that he come

up, which he did. Only he and Mannella were present at this

second meeting.

“Q. What conversation, if any, took place at that

time.

A. At that time Mr. Mannella told me what the

amount of the donation was, or whatever it was.

Q. What amount did he specify?

A. $10,000.00.

Q. What did you say?

A. Iwas sort of shocked, I says, you know, no way, it

is ridiculous.

Q. What did he say?

“A. Well, I don’t know, let me think a minute

here—when he told me $10,000, I says, ‘Christ, that is

ridiculous, there is no way it could be paid on a job of

this size’ and I told Mr. Mannella, he is an engineer, |

mean, he knows what things are. I said, ‘Who the hell am

I supposed to make this check to anyway?’ Mr. Mannella

said, ‘We don’t take checks, it is cash in an envelope to

me.’

Q. What did you say?

A. I said, ‘There is no way that I would pay it.’

Upon being asked if Mannella told him why he had brought

Vacarello and the other two defendants together, Vacarello

answered:

' Tr. 72-73.

41

Appendix B—Memorandum Opinion Dated October 29, 1975.

“A. Mr. Mannella said that I was apparently angry.

He said, ‘Look, they are a friend of mine, you are a

friend of mine. All I did here, all I am doing is getting

you together.’ ”

“Q. Did you still at this time, did you have any

knowledge of what your problem was?

A. No, I did not.

Q. Did you find out at that meeting with Mr. Man-

nella what your alleged problem was?

A. Well, at that time at that second meeting, Mr.

Mannella showed me the copy of the minutes of

a Monroeville committee meeting.”"®

Those minutes rejected Vacarello’s bid on the Overlook Park

project and Vacarello testified that it was then that he

realized what his “problem” was. When Vacarello said, “They

do other work in Monroeville,” Mannella responded, “Save

your time, save your money,” or something on that order.

Vacarello then left Mannella’s office.

The government submits that the evidence clearly

established a common scheme, whereby the three defendants,

designating Mannella as their spokesman and middleman, at-

tempted to “shake down” Vacarello, and that despite the fact

that only Mannella was present at the time of the attempt, '*

defendants Rosa and Sica were equally guilty because of their

presence and participation at the earlier meeting.

As previously mentioned, the court instructed the jury un-

der 18 U.S.C. §2, the aiding and abetting statute. This was

'° Tr. 78.

'* The jury was instructed that there was no attempt at any extortion at

the morning meeting of July 23, 1974, as a matter of law.

42

Appendix B—Memorandum Opinion Dated October 29, 1975.

necessary inasmuch as the jury was instructed that there was

no attempt to extort as a matter of law at the morning

meeting. Since defendants Rosa and Sica were not actually

present at the time of the attempt, they were necessarily con-

victed as aiders and abettors.

In order to aid and abet another to commit a crime it is

necessary that the defendant associate himself with the

Criminal enterprise, that he participate in it as something

which he wishes to bring about and that he seeks by his action

to make it succeed. United States v. Barber, 429 F.2d 1394,

1397 (3rd Cir. 1970), quoting United States v. Peoni, 100 F.2d

401, 402 (2d Cir. 1938), quoted with approval in Nye &

Nissen v. United States, 336 U.S. 613, 619 (1949). Mere

presence at the scene of a crime, even in the company of one

or more of the principal wrongdoers, does not alone make

one an “aider and abettor,” unless the jury is convinced

beyond a reasonable doubt that defendant was doing

something to forward the crime and that he was a participant

rather than merely a knowing spectator. United States v. King,

402 F.2d 289, 291 (10th Cir. 1968); see Hicks v. United States,

150 U.S. 442 (1893), United States v. Barber, supra. Stated

otherwise, to convict a person of aiding and abetting, his con-

duct or other special circumstances attending his presence at a

crime must be such as to show that he had associated himself

with and participated in the criminal undertaking, and

something of significance beyond his mere presence is

necessary to justify conviction. United States v. Barber, supra,

at 1397. Furthermore, in Barber the court said that in order to

prevent onlookers from being convicted,

“The courts have responsibility to make sure that mere

speculation is not permitted to substitute for proof of

group activity in crime.”

See Government of the Virgin Islands v. Navarro, 513 F.2d 11

(3rd Cir. 1975).

43

Appendix B—Memorandum Opinion Dated October 29, 1975.

However, an act of relatively slight importance may

warrant a jury’s finding of participation in a crime. United

States v. Burrell, 496 F.2d 609, 610 (3rd Cir. 1974). Par-

ticipation may also be shown by circumstantial evidence as

well as by direct evidence, United States v. Garguilo, 310 F.2d

249, 253 (2d Cir. 1962). In deciding whether circumstantial

evidence supports a conviction the question is whether all the

pieces of evidence against the defendant, taken together,

make a strong enough case to let a jury find him guilty beyond

a reasonable doubt. United States v. Pratt, 429 F.2d 690, 694

(3rd Cir. 1970).

It is essential that the proof against each defendant must be

individual and personal, United States v. DeCavalcante, 440

F.2d 1264, 1275 (3rd Cir. 1971), United States v. Klein, 515

F.2d 751 (3rd Cir. 1975) and mere association with con-

spirators or knowledge of the illegal activity is not sufficient.

United States v. Prince, 515 F.2d 564, 567 (Sth Cir. 1975).

Since defendants Rosa and Sica were not convicted on the

basis of their being present at the scene of the crime, (they

were not present when the crime was committed) we must

decide as ‘o each whether there is evidence, either direct or

circumstantial, to support the finding that each was guilty of

aiding and abetting in the attempted extortion.

First, as to defendant Sica, the testimony is that Sica was

the one who told Vacarello he had a problem and that “we”

would like a donation. Furthermore, Sica told Vacarello that

Mannella would call him later that day. Sica argues, and we

agree, that in order for the conviction to stand it is necessary

to infer that Sica appointed Mannella as his spokesman. Sica

argues that the evidence was insufficient to go to a jury

without accepting a theory of vicarious liability for the phone

call, and imputed authority to make the demands. While there

is no direct evidence that either Rosa or Sica knew what Man-

44

Appendix B—Memorandum Opinion Dated October 29, 1975.

nella was going to say, we believe that by his participation in

the earlier meeting Sica did associate himself with the

criminal enterprise. We believe that there is clearly evidence

from Sica’s statement that “Vince will call you” that he in-

tended to associate himself with Mannella. We, therefore,

reject Sica’s argument.

While the evidence against Rosa was not as strong as against

the other defendants, it was sufficent to enable a reasonable

man to conclude that Rosa was guilty of the offense charged

beyond a reasonable doubt. In our view, Rosa’s argument is

fatally defective in its interpretation of the conclusions which

the jury could draw from his presence in Mannella’s office

during the morning meeting.

Defendant Rosa’s argument is that since Rosa did not say

or do anything which instilled any fear in Vacarello and since

Rosa never demanded or attempted to demand any money

from Vacarello, his mere presence at the morning meeting is

insufficient evidence as a matter of law of his participation in

the attempt to extort. Further, Rosa contends that his

presence in Mannella’s office at the time of the meeting can-

not support the jury verdict finding him guilty of elements

“A” through “F” of the court’s charge.

We disagree since we find that the jury could conclude on

the basis of all the evidence that Rosa had associated himself

with the extortion scheme and like Sica, had appointed Man-

nella as his spokesman. While the evidence of Rosa’s par-

ticipation is entirely circumstantial, it is sufficient to sustain

the conviction.

45

Appendix B—Memorandum Opinion Dated October 29, 1975.

V

| Other Claimed Errors

We have carefully examined all other claims of error in

defendants’ motions and find them to be without merit. In

our-view, only one of those claimed errors requires dis-

cussion, i.e., whether the court committed prejudicial error in

allowing Vacarello to testify as to a conversation which oc-

curred subsequent to the attempt between himself and defen-

dant Mannella wherein Mannella asked him: “Did you pay

those fellows the $7,500?”"’

Defendants, citing K rulewitch v. United States, 336 U.S. 440,

contend that the court erred in permitting Vacarello to testify

to that conversation over defendants’ objection. They con-

tend that the conversation complained of amounted to a state-

ment by an alleged co-conspirator after the conspiracy was at

an end which Krulewitcl: held could not be used against the

declarant’s co-defendants. We disagree.

In the first place, the conspiracy charge was dismissed on

defendant’s motion prior to admission of the evidence now

complained of. Furthermore, we do not believe that the

statement is hearsay since it was not offered to prove the truth

of the matter asserted but rather to show Mannella’s guilty

knowledge of an attempt. Under the government’s theory

wherein Mannella was a spokesman for Rosa and Sica, the

statement was likewise admissible against them. Cf. Anderson

v. United States, 417 U.S. 211 (1974), United States v. Lutwak,

344 U.S. 604, 617-618 (1952).

In our judgment, the post trial motions should therefore be

denied.

'? See Tr. 135-144.

46

Appendix B—Memorandum Opinion Dated October 29, 1975.

IN THE UNITED STATES DISTRICT COURT

For the Western District of Pennsylvania

UNITES STATES OF AMERICA,

vs.

FRANK JOSEPH ROSA, a/k/a “JOE,” JOSEPH

SICA, and VINCENT MANNELLA,

Defendants.

Criminal Action No. 75-80.

ORDER.

AND NOW, October 29, 1975, the post trial motions of

defendants, Frank Joseph Rosa and Joseph Sica, in arrest of

judgment and of acquittal and for new trial are denied.

All defendants shall appear in Court Room No. i0 on

November 20, 1975, at 10:00 A.M., for the imposition of sen-

tence.

BARRON P. McCUNE,

United States District Judge.

cc: Harold Gondelman, Esq.

1018 Frick Building

Pittsburgh, Pa. 15219

Thomas Livingston, Esq.

The Colonial Building

Ross at Second

Pittsburgh, Pa. 15219

47

Appendix B—Memorandum Opinion Dated October 29, 1975.

Samuel J. Reich, Esq.

Mark Glosser, Esq.

Suite 1112 Frick Building

Pittsburgh, Pa. 15219

John Daley, Esq.

°19th Floor, Commonwealth Building

Pittsburgh, Pa. 15222

John W. Murtagh, Jr., Special Attorney

Chatham Center Office Building

Pittsburgh, Pa. 15219

James E. Roark, A.U.S.A.

644 United States Courthouse

Pittsburgh, Pa. 15219

Blair A. Griffith, U.S. Attorney

644 United States Courthouse

Pittsburgh, Pa. 15219

48

APPENDIX C.

Letter Dated October 2, 1973.

Assistant Attorney General

Criminal Division

DEPARTMENT OF JUSTICE

Washington 20530

October 2, 1973

Mr. John W. Murtagh

Criminal! Division

Department of Justice

Washington, D. C.

Dear Mr. Murtagh:

The Department is informed that there have occurred and

are occurring in the Western District of Pennsylvania and

other judicial districts of the United States violations of

federal criminal statutes by persons whose identities are un-

known to the Department at this time.

As an attorney at law you are specially retained and ap-

pointed as a Special Attorney under the authority of the

Department of Justice to assist in the trial of the aforesaid

cases in the aforesaid district and other judicial districts of

the United States in which the Government is interested. In

that connection you are specially authorized and directed to

file informations and to conduct in the aforesaid district and

other judicial districts of the United States any kind of legal

p. oceedings, civil or criminal, including grand jury proceed-

ings and proceedings before committing magistrates, which

United States Attorneys are authorized to conduct.

Your appointment is extended to include, in addition to the

aforesaid cases, the prosecution of any other such specia!

cases arising in the aforesaid district and other judicial dis-

tricts of the United States.

49

Appendix C—Letter Dated October 2, 1973.

You are to serve without compensation other than the com-

pensation you are now receiving under existing appointment.

Please execute the required oath of office and forward a

duplicate thereof to the Criminal Division.

Sincerely,

HENRY E. PETERSEN,

Henry E. Petersen,

Assistant Attorney General

50

APPENDIX D.

Memorandum and Order Dated May 19, 1975.

IN THE UNITED STATES DISTRICT COURT

For the Western District of Pennsylvania

UNITED STATES OF AMERICA,

vs.

FRANK JOSEPH ROSA, a/k/a “JOE”, Joseph

SICA and VINCENT MANNELLA.

Criminal Action No. 75-80.

MEMORANDUM and ORDER.

BARRON P. McCUNE, District Judge

May 19, 1975.

The defendants have been indicted for alleged conspiracy

to violate the Hobbs Act, Title 18, § 1951] (Interference with

commerce by threats or violence). Essentially the government

contends that the defendants conspired to and attempted to

obstruct interstate commerce by attempting to extort

$10,000.00 from Joseph Vacarello, Jr.

Several pretrial motions have been filed. All defendants

have joined in all motions.

The first is a motion to dismiss because so-called “Strike

Force” attorneys presented the case to the Grand Jury pur-

Suant to appointments which were invalid for lack of

51

Appendix D—Memorandum and Order Dated May 19, 1975.

specificity under 28 U.S.C., § 515(a) and therefore under Rule

of Criminal Procedure 6(d) unauthorized persons were in the

Grand Jury Room. The defendants also seek an evidentiary

hearing of a discovery nature to determine the circumstances

under which the appointments were made, the directives of

the Attorney General, if any exist, in addition to the letters of

appointment; who the attorneys were who appeared before

the Grand Jury and all of the inter-office material which the

Attorney General has pertaining to the authority of the

government attorneys.

The second motion asks the severance of the trial of Man-

nella from the others because of pretrial publicity which re-

ferred to Rosa and Sica as figures connected with organized

crime. Three newspaper articles were attached to the motion

which refer to Rosa and Sica as members of the organized

crime family of John Sebastian La Rocca.

Defendant Rosa moves for a severance for purposes of trial

as well because of the danger of the admission of the hearsay

statements of alleged co-conspirators during the trial.

At oral argument defendant Rosa also moved for a

severance because of the fear of [ Bruton v. United States, 391

U.S. 123 (1968)] problems. He contends that Mannella’s

Grand Jury testimony has been given Mannella and he fears

that it contains admissions or confessions which, if used, will

compromise the other deiendants. He has not seen Mannella’s

testimony but believes the problem to exist.

At oral argument John W. Murtagh, Jr., and James E.

Roark appeared representing the government and Mr. Mur-

tagh stated that he had presented the case to the Grand Jury.

His letter of appointment was furnished, dated October 2,

1973, executed by Henry E. Petersen, Assistant Attorney

General.

52

Appendix D—Memorandum and Order Dated May 19, 1975.

The letter has been examined. It is fairly general in tenor

and is not unlike the appointment of other so-called Strike

Force attorneys which we have seen.

We recently said in ruling on a similar motion in the case of

U.S. v. Nemetz, et al., Cr. No. 75-32, that so much had

already been written on this subject that it was unnecessary to

add to the material.

Defendants argue that the specificity requirements of 28

U.S.C. § 515(a)' render the appointments void because the let-

ter of appointment is too general. This depends on whether

the reader concludes that Congress intended to limit the At-

torney General in obtaining help or to assist the Attorney

General in getting help when needed. The great weight of

authority adopts the view that Congress intended to permit

the Attorney General to get all the help he required and he

was therefore authorized to specially appoint attorneys and to

specifically direct them to function in a broad field. See U.S.

v. Brown, Cr. No. 74-867 (S.D. N.Y., filed February 24, 1975),

16 CrL 2504, March 12, 1975.

The last opinion on this subject available to us in an

opinion of April 22, 1975, in the District Court for the

District of Rhode Island, Misc. No. 75-86, captioned: “In Re:

Grand Jury Subpoenas addressed to Raymond L. S. Patriarca

et al.’ We agree with what was said there.

We find it unnecessary to furnish discovery to defendants

concerning the Attorney General's directives or his inter-

office practices or what he may have told Murtagh respecting

his authority.

The motion to dismiss because of the alleged violation of

Rule 6(d) of the Criminal Rules will be dismissed.

'28 U.S.C. 515(a) provides, inter alia: “The Attorney General or any

other officer of the Department of Justice, or any attorney specially ap-

pointed by the Attorney General under law, may, when specifically direct-

ed by the Attorney General, conduct any kind of legal proceeding . . .™

a pees _—s

53

Appendix D—Memorandum and Order Dated May 19, 1975.

With respect to the second motion that we sever Mannella’s

trial because of pretrial publicity, we believe it wise to await

voir dire to determine whether the publicity makes the grant-

ing of this motion proper so it will be denied as well.

The motion of Rosa that we sever his case for trial because

of ‘the danger of the admission of the hearsay statements of

alleged co-conspirators during the trial will be denied also.

This leaves pending the motion that the trials be severed

because of the possibility of Bruton problems because of what

Mannella may have said to the Grand Jury. Government

counsel states that there are no Bruton problems but defense

counsel suspect they exist. We have no way of knowing the an-

swer to this short of looking at the transcript of Mannella’s

testimony or of ordering it displayed to all defense counsel.

The latter course is unwise because Mannella may not wish to

reveal the testimony.

We are willing to examine that testimony in camera pro-

vided all parties, including the government, consent.

However, we do not require this action. We believe it would

be just as wise to proceed to trial believing that government

counsel will not create a problem so well warned of in ad-

vance of trial.

Therefore, the motion to sever because of a possible Bruton

problem is denied. However, it will be reconsidered in the

event defendants and the government present the Mannella

transcript within 10 days from the date hereof along with a re-

newed motion.

The trial of this case will begin at 10:00 A.M., June 23,

1975, in Court Room No. 10.

It is so ordered.

BARRON P. McCUNE,

United States District Judge.