Opposition — Mannella v. United States

Nos. 75-1618 and 75-1738

In the Supreme Court of the United States

OCTOBER TERM, 1976

VINCENT MANNELLA, PETITIONER

Vv.

UNITED STATES OF AMERICA

FRANK JOSEPH ROSA, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ROBERT H. Bork,

Solicitor General,

RICHARD L. THORNBURGH,

Assistant Attorney General,

JEROME M. FEIT,

ANN T. WALLACE,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

In the Supreme Court of the United States

OCTOBER TERM, 1976

No. 75-1618

VINCENT MANNELLA, PETITIONER

Vv.

UNITED STATES OF AMERICA

No. 75-1738

FRANK JOSEPH ROSA, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The judgment orders of the court of appeals (Pet.

Apps. A) are not reported. The opinion of the district

court (Pet. No. 75-1618, App. B: Pet. No. 75-1738, App.

C) is reported at 404 F. Supp. 602.

JURISDICTION

The court of appeals entered judgments on April 7,

1976, and denied petitions for rehearing on May 3, 1976

(Pet. No. 75-1738, App. B). The petition for a writ of cert-

(1)

iorari in No. 75-1618 was filed on May 6, 1976. The peti-

tion in No. 75-1738 was filed on May 29, 1976. The juris-

diction of this Court is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

|. Whether the Department of Justice attorneys who

presented the case to the grand jury lacked proper

authorization to do so.

2. Whether “attempted” extortion is proscribed by 18

U.S.C. 1951 (the Hobbs Act).

3. Whether evidence of a potential effect on interstate

commerce by an act of attempted extortion is sufficient

to satisfy the interstate commerce requirement of the

Hobbs Act.

4. Whether the evidence was sufficient to sustain

petitioner Rosa’s conviction as an aider and abettor.

STATEMENT

Following a jury trial in the United States District

Court for the Western District of Pennsylvania, peti-

tioners were convicted of attempting to obstruct commerce

by extortion, in violation of I8 U.S.C. 1951. Petitioner

Mannella was sentenced to five years’ imprisonment and

a fine of $2.50). Petitioner Rosa was sentenced to five

years’ imprisonment and a fine of $10.000. The court of

appeals affirmed (Pet. Apps. A).

On July 23, 1974, Joseph Vaccarello, Jr., a landscape

contractor doing business in Ohio, West Virginia, and

Pennsylvania, went to petitioner Mannella’s office in

response to the latter’s request and there was introduced

by Mannella to petitioner Rosa and co-defendant Sica,

who represented themselves to be members of the

Monroeville Borough Council (Tr. 48, 60, 61, 63, 92).

Vaccarello was asked if he had submitted a bid for the

3

construction of a park in Monroeville Borough. When he

acknowledged that he had, co-defendant Sica replied:

“[W]e have a problem with the job and we would like to

see you get the job but we would like a donation” (Tr. 64-

65).

At a second meeting between Mannella and Vaccarello

later in the day, Mannella told Vaccarello that the “dona-

tion” would be $10,000 (Tr. 71-72) and that if it was not

forthcoming Vaccarello would not get the park project

(on which, it had already been determined, he had sub-

mitted the lowest bid) or any other work in the Borough

of Monroeville (Tr. 81). Mannella then showed Vaccarello

a copy of the minutes of the Borough’s Recreation Commit-

tee, which indicated that Vaccarello would not be awarded

the park project (Tr. 78-79).

Vaccarello refused to make the payment but was

subsequently awarded the contract nonetheless (Tr. 95).

Thereafter, in late September or mid-October, Vaccarello

asked Mannella why he had sent the F.B.I. to his office.

Mannella replied, “[w]ell, don’t worry what is going on,

they are just fishing.” At a later accidental meeting,

Mannella asked Vaccarello: “I just came from my attor-

ney’s office.” “Tell me, did you pay those fellows the

$7,500.00?” Vaccarello responded: “What 7,500?” “You

know I didn’t pay them” (Tr. 142, 143).

ARGUMENT

|. Petitioners contend that the Department of Justice

attorneys who presented this case to the grand jury

lacked proper authorization to appear before that body

and that the resulting indictment was therefore invalid

(Pet. No. 75-1618, pp. 12-13: Pet. No. 75-1738, pp. 13-

14). The Special Attorneys were directed, however, by a

commission properly issued under 28 U.S.C. 515(a) by the

4

Assistant Attorney General of the Criminal Division of the

Justice Department, to concern themselves with violations

of the criminal laws of the United States (Pet. No. 75-1618,

App. C). As appellate courts presented with this question

have uniformly held, the generality of such an authoriza-

tion does not invalidate either the Special Attorneys’ ap-

pearance before the grand jury or the presentation by them

of evidence relating to crimes regarding which the grand

jury returns an indictment. See, e.g.. /n re Subpoena of

Persico, 522 F. 2d 41 (C.A. 2): United States v. Wrigley,

520 F. 2d 362 (C.A. 8). certiorari denied, 423 U.S. 987.

2. Petitioners contend that, since their effort to extort

money froin Vaccarello was unsuccessful, their conduct

did not fall within the ambit of the Hobbs Act (18 U.S.C.

1951), which, they claim, does not forbid attempted

extortion (Pet. No. 75-1618, pp. 11-12; Pet. No. 75-1738,

pp. 9-13). The Hobbs Act provides:

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

or attempts or conspires so to do * * * shall be

[punished as prescribed].

In our view, the attempt conspiracy provision of the

statute can be sensibly construed in only one way: to

prohibit conspiracies or attempts to rob or extort that

would, if successful, obstruct, delay, or affect commerce.

Petitioners contend, however, that the phrase “at-

tempts or conspires” modifies “obstructs, delays, or

affects commerce” rather than “robbery or extortion.”

If petitioners’ construction were correct, then the statute

would prohibit, not attempted robbery or extortion, but

only completed robberies or extortions that are part of

attempts or conspiracies to obstruct commerce. This

5

would convert what seems plainly intended as a jurisdic-

tional element of the offense into the gravamen of the

crime and would leave the attempt/conspiracy prohibi-

tion with no _ practical application, it being most

unlikely that would-be robbers or extorters care at all

whether their proposed criminal scheme affects commerce.

Congress could not have intended such a nonsensical

result.

The Second Circuit rejected an identical argument in

United States v. Tropiano, 418 F. 2d i069, 1083, cert-

iorari denied, 397 U.S. 1021, holding that the statute

“embrace[s] an attempt or conspiracy to interfere

with commerce by extortion even though the attempt

or conspiracy failed because the extortion was uncom-

pleted.” See also United States v. Pranno, 385 F. 2d

387, 389-390 (C.A. 7), certiorari denied, 390 U.S. 944.

This result is clearly correct even if a nice parsing of the

language does not inevitably lead to it. In enacting the

Hobbs Act Congress was legislating, not for linguists,

but in a common-sense fashion, to outlaw just the sort of

conduct in which petitioners have been shown to have

engaged. Petitioners offer no legislative history in

support of their belief that Congress intended to except

the type of activities revealed here from the reach of the

statute, and we know of none.

Other courts of appeals have also indicated that 18

U.S.C. 1951 proscribes attempted extortion. United

States v. lozzi, 420 F. 2d 512 (C.A. 4), certiorari denied,

402 U.S. 943; United States v. Starks, 515 F. 2d 112, 116

(C.A. 3) (dictum), United States v. Jacobs, 451 F. 2d 530,

534 (C.A. 5) (dictum), certiorari denied, 405 U.S. 955;

Hulahan vy. United States, 214 F. 2d 441, 445 (C.A. 8),

6

certiorari denied, 348 U.S. 856: United States v. Green,

246 F. 2d 155. 157 (C.A. 7). certiorari denied, 355 U.S.

871.' Cf. United States v. Feola, 420 U.S. 671.

3. Petitioner Mannella contends (Pet. No. 75-1618. pp.

S-I1) that the government failed to estabiish that the

attempted extortion, if successful, would have affected

interstate commerce. The predicate to this argument is

that the government did not show that the requested

extortionate payment would have come from Vaccarello’s

business, as opposed to his personal resources or those of

his family.

Even if the money would have come from a source

other than from Vaccarello’s business directly, we submit

that the government would not have failed in its proof.

The attempted extortion consisted of a direct threat to

the ability of a business engaged in interstate commerce

to pursue its customary operations. In such circum-

stances, the nature of the extortionate demand, directly

threatening interstate commerce activities, alone suffices

to satisfy the jurisdictional requirement of the statute.

Moreover, regardless of their source, funds available to

Vaccarello to obtain a business contract in response to an

extortionate demand would presumably be available to

Vaccarello for other, legitimate business purposes as well.

‘Petitioners’ reliance (Pet. No. 75-1618, p. 10; Pet. No. 75-1738,

p. 12) upon United States v. Enmons, 410 U.S. 396, for the proposi-

tion that federal criminal jurisdiction under the Hobbs Act should

be narrowly construed, is misplaced. The Court there held. in light

of the language and legislative history of the Act. that Congress did

not intend the Act to reach violence and threats that were intended

to achieve the otherwise legitimate objectives of employees in a wage

dispute (id at 411). In the instant case. however. petitioners’

objective the receipt of money trom Vaccarello in return for the

award of the park project tell squarely within the reach of the

Statute.

— oo

Thus, so long as Vaccarello’s business affected interstate

commerce (petitioners do not argue that it did not),

payment of the money demanded would have depleted

the assets available to that business in one form or

another, and accordingly would have affected interstate

commerce within the meaning of the statute.

In any event, proof that the money would have come

directly from Vaccarello’s business was ample. Vaccarello

testified that when Mannella told him that he and his

confederates wanted $10,000, Vaccarello responded, “that

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

this size” (Tr. 73). Vaccarello further testified that Mannella

told him that another contractor had paid $20,000 on a

$700,000 project. Vaccarello distinguished that situa-

tion from his own by pointing out that the other contractor

“had no labor of any kind,” that $20,000 on $700,000 is

“a lot different from 10,000 on 128[100]° and that he

was using “lower price stuff (Tr. 73).

From this testimony there was ample basis for the jury

to conclude that Mannella and Vaccarello intended that

the “donation” of $10,000 would come from Vaccarello’s

business assets. Thus, the requested extortionate payment

of $10,000 to petitioners, if made, would have depleted

the resources of the enterprise to carry on its business in

interstate commerce. Whatever may be said of the “deple-

tion of assets” theory as applied to the far-fetched situa-

tions hypothesized by petitioner Mannella (Pet. No. 75-

1618, p. 9), in cases such as the present one, where the

extortion depletes the assets of a business engaged in in-

terstate commerce, jurisdiction is established under the

8

Hobbs Act quite without detriment to or invasion of the

domain of local law enforcement.’

4. Petitioner Rosa contends (Pet. No. 75-1738, p. 8)

that the government failed to prove that he aided and

abetted the attempted extortion. As the district court

below concluded, however (404 F. Supp. at 615-618),

there was ample evidence that petitioner Mannella was

not alone in the planning and execution of the attempted

extortion (see Nye and Nissen v. United States, 336 U.S.

613 United States vy. Barber, 429 F. 2d 1394, 1397

(C.A. 3)), and petitioner Rosa, like co-defendant Sica,

was introduced to Vaccarello as a representative of several

councilmen from the Borough of Monroe.» Both men

were portrayed as having “a problem” with vaccareilo’s

bid on the park project, as wanting Vaccarello “to get the

job.” and as desiring a “donation” in return (Tr. 64-65).

Without such representations it is unlikely that

Vaccarello would have been convinced that Rosa and

Sica had any ability to prevent his firm from obtaining

the contract. Moreover, although Rosa and Sica were not

present when Mannella designated the amount of the

contribution, Mannella made reference to their partici-

pation when he stated “[w]e don’t take checks” and when

he explained that his own role was simply that of middle-

man (Tr. 73). Under these circumstances, the court's

See United States v. Mazzei, 521 &. 2d 639 (C.A. 3) (en banc),

certiorari denied, 423 U.S. 1014; United States v. Crowley, 504

F. 2d 992, 998 (C.A. 7): United States v. Pacente, 503 F. 2d 543,

550 (C.A. 7), certiorari denied, 419 U.S. 1048; United States v.

De Met, 486 F. 2d 816, 821 (C.A. 7). certiorari denied. 416 U.S.

969: United States v. Augello, 451 F. 2d 1167, 1169-1170 (C.A,. 2),

certiorari denied, 405 U.S. 1070: United States v. Addonizio, 451

F. 2d 49, 77 (C.A. 3). certiorari denied, 405 U.S. 936: United States

v. Provenzano, 334 F. 2d 678, 692-693 (C.A. 3), certiorari denied.

379 U.S. 947.

EO gene ee me

9

conclusion that there was sufficient evidence of aiding

and abetting was correct and does not require further

review.

CONCLUSION

The petitions for a writ of certiorari should be denied.

Respectfully submitted.

ROBERT H. Bork,

Solicitor General.

RICHARD L. THORNBURGH,

Assistant Attorney General.

JEROME M. Felt,

ANN T. WALLACE,

Attorneys.

SEPTEMBER 1976.

DOJ-1976-09