Petition — Sica v. United States

a

—

Supieme Court, U. &.

cm FIL E D

AUG 29 1977

IN THE

} MICHAEL RODAK, JR., CLER

Supreme Court of the United 5 fes

Term, 1977

No 319

JOSEPH SICA,

Petitioner

v.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

LIVINGSTON, MILLER, O’MALLEY & CLARK

THOMAS A. LIVINGSTON

DENNIS J. CLARK

Attorneys for Petitioner

Colonial Building

205 Ross Street

Pittsburgh, Pa. 15219

(412) 391-7686

SMITH BROS ., LAW PRINTERS, 620 SECOND AVENUE, PITTSBURG , PA. 15219

— PAGE

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Reasons for Granting the Writ decries 10

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Appendix:

A—Memorandum and Order of the United

States District Court for the Western Dis-

trict of Pennsylvania dated May 19, 1975. la

B—Memorandum and Order of the United

States District Court for the Western Dis-

trict of Pennsylvania dated October 29,

e REE — 6a

C—Opinion and Order of the United States

Court of Appeals for the Third Circuit

dated October 20, 1976 reversing the con-

J rr 39a

D— Order of the United States Court of Ap-

peals for the Third Circuit dated December

16, 1976 granting appellee's petition for re-

hearing and vacating order of October 20,

— —, A he ed 51a

E— Opinion and Order of the United States

Court of Appeals for the Third Circuit

dated July 6, 1977 affirming the conviction.. 52a

F—Order of the United States Court of Ap-

peals for the Third Circuit dated August 2,

1977 denying appellant’s petition for re-

r 78a

Table of Citations.

CITATIONS

CASES PAGE

Bruton v. United States, 391 U.S. 128, 88 S.Ct. 1620

11%³öÜ . 22

— 17, 19, 20

Cool v. United States, 409 U.S. 100, 93 S.Ct. 354

% ² VVV ei ie Ge ree 3, 23

Ex Parte Bain, 121 U.S. 1, 7 S.Ct. 781 (1887) 13

Fiswick v. United States, 144 U.S. 263, 12 S.Ct. 224

FF en 22

In Re Winship, 397 U.S. 358, 90 S.Ct. 1068 (1970) . 13

Krulewitch v. United States, 336 U.S. 440, 69 S.Ct.

r Te IS bs 22

Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038

—:r ——A: 13

Schaffer v. United States, 362 U.S. 511, 80 S. Ct. 945

T— ⁰ ¹ AAA A 18

Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270

gaa A i eee 12, 13,17

United States v. Addonizio, 451 F.2d 49 (3d Cir.

1971), cert. den. 405 U.S. 936, 92 S.Ct. 949 16, 17

United States v. Critchley, 353 F.2d 358 (3d Cir.

— . mae a, 17

United States v. DeCavalcante, 440 F.2d 1264 (3d

rr MEMO. 13

United States v. Enmons, 335 F. Supp. 641 (E.D. La.

1971), affd. 410 U.S. 396, 93 S.Ct. 100777 12

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

/ w— ——— catiiabesdemenaibiglinkidesiee 19

United States v. Green, 350 U.S. 415, 76 S.Ct. 522

% 12

United States v. Housing Foundation of America,

Inc., 176 F. 2d 665 (3d Cir. 1949) ... . . .. .. 18

Table of Citations.

CASES PAGE

United States v. Nadaline, 471 F.2d 340 (5th Cir.

1973), cert. den. 411 U.S. 951, 93 S.Ct. 1924 15

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

111 ———————5ð 19

STATUTES

Federal Rules of Criminal Procedure, Rule 14 18

„ „Section 1951

Title 18, United States Code 3, 4, 10, 11, 12, 14, 17

OTHER SECONDARY SOURCES

Black's Law Dictionary, 162 (Revd. 4th Ed. 1968). 14

Moore’s Federal Practice, Vol. 8 §14.04(3) .............. 22

In THE

Supreme Court of the United States

Term, 1977

No.

JOSEPH SICA,

Petitioner

v

UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Your petitioner, Joseph Sica, prays that a Writ of

Certiorari issue to review the judgment of the United

States Court of Appeals for the Third Circuit in the

above captioned case.

OPINIONS BELOW

The district court’s memorandum and order dated

May 19, 1975 is not reported but is set forth herein at

Appendix A. The district court’s memorandum and order

dated October 29, 1975 is reported at 404 F. Supp. 602

(W.D. Pa. 1975) and is set forth herein at Appendix B.

The court of appeals’ opinion and order dated Octo-

ber 20, 1976 reversing Sica’s conviction is not reported

but is set forth herein at Appendix C. The court of ap-

peals’ order dated December 16, 1976 granting appellee’s

Jurisdiction.

petition for rehearing and vacating the order of Octo-

ber 20, 1976 is set forth herein at Appendix D. The court

of appeals’ opinion and order dated July 6, 1977 affirming

Sica’s conviction is not yet reported but is set forth

herein at Appendix E. The court of appeals’ order dated

August 2, 1977 denying appellant’s petition for rehearing

is set forth herein at Appendix F.

JURISDICTION

The court of appeals issued an order denying the

petition for rehearing on August 2, 1977, and the within

petition for a writ of certiorari is being filed within

thirty days of said order. The jurisdiction of this Court

is invoked under Title 28, United States Code, Section

1254(1).

Questions Presented.

QUESTIONS PRESENTED

Whether the Hobbs Act, 18 U.S.C. §1951, proscribes

“attempted extortion”?

Whether the evidence is sufficient to prove a viola-

tion of the Hobbs Act, 18 U.S.C. §1951, by extortion

or attempted extortion?

. Whether it was a denial of due process of law to

refuse petitioner’s motions for severance and thus

deprive him of the testimony of a co-defendant who

was willing to testify at a separate trial and would

have contradicted the only inculpatory testimony

against petitioner?

. Whether a defendant at a joint trial is entitled to a

severance after the Government has rested and

before a co-defendant presents defense testimony

in order that the jury may consider only the Gov-

ernment’s evidence against him?

Whether the jury should have been instructed with

the standard accomplice charge and its corollary

under Cool v. United States, 409 U.S. 100, 93 S.Ct.

354 (1972) when a co-defendant testified in his own

behalf and presented both inculpatory and excul-

patory evidence against petitioner?

Statute Involved.

STATUTE INVOLVED

18 U.S.C. §1951. Interference with commerce by threats

or violence

(a) Whoever in any way or degree obstructs, de-

lays, or affects commerce or the movement of any article

or commodity in commerce, by robbery or extortion or

attempts or conspires so to do, or commits or threatens

physicai violence to any person or property in further-

ance of a plan or purpose to do anything in violation of

this section shall be fined not more than $10,000 or im-

prisoned 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 injury, 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 com-

pany at the time of the taking or obtaining.

(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 Territory or

Possession of the United States; all commerce

between any point in a State, Territory, Possession,

or the District of Columbia and any point outside

thereof; all commerce between points within the

Ee eg

Statement of the Case.

same State through any place outside such State;

and all other commerce over which the United States

has jurisdiction.

(e) This section shall not be construed to repeal,

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

115, 151-166 of Title 29 or sections 151-188 of Title 45.

June 25, 1948, c. 645, 62 Stat. 793.

STATEMENT OF THE CASE

History

On February 26, 1975, your petitioner Joseph Sica

was indicted at criminal number 75-080 in the United

States District Court for the Western District of Penn-

sylvania. The indictment named two co-defendants,

Frank Joseph Rosa and Vincent Mannella, and charged

all three individuals with two counts of violating the

provisions of Title 18, United States Code, Section 1951,

the “Hobbs Act”. Count one, which was dismissed by the

district court during trial, alleged a conspiracy to violate

91951. Count two alleged that from July 23, 1974 to

August 15, 1974, in the Western District of Pennsylvania

and elsewhere, Sica, Rosa and Mannella did unlawfully

and wilfully attempt to obstruct, delay and affect inter-

state commerce and the movement of articles and com-

modities in commerce by extortion, i.e., defendants did

attempt to obtain property of the value of $10,000 in

the form of money from one Joseph Vacarello, Jr., as

agent and owner of Penn Landscape and Cement Work

with his consent induced by wrongful use of fear in that

defendants did threaten Vacarello and his company with

the loss of the “Overlook Park” project and other con-

Statement of the Case.

tracts unless nd until Vacarello and his company paid

the said amount of money to defendants.

On August 5, 1975, a jury trial of the indictment

against all defendants was convened before the Honor-

able Barron P. McCune, District Judge. On August 12,

1975, the jury returned a verdict of guilty as to all de-

fendants on count two. Sica filed motions for judgment

of acquittal, new trial and arrest of judgment; but said

motions were denied by the lower court. Subsequently,

Sica was sentenced to pay a $10,000 fine and to serve

a term of imprisonment for five years with eligibility

for parole under 18 U.S.C. §4208(a)(1) upon serving

six months of said term.

On October 20, 1976, a panel of the United States

Court of Appeals for the Third Circuit reversed the

judgment of sentence. But, on December 16, 1976, the

court of appeals en banc granted the Government’s peti-

tion for rehearing and vacated the order of October 20,

1976. After rehearing, the court of appeals en banc with

three judges dissenting affirmed the judgment of sen-

tence on July 6, 1977. Sica’s petition for rehearing was

denied on August 2, 1977.

Facts

The first of two Government witnesses, Katherine

Vlack Kendall, testified that she was employed by Man-

nella Engineers as a secretary during the summer of

1974. At some point during that summer, Frank Joseph

Rosa, a business client of Mannella Engineers, and Jo-

seph Sica arrived to see Vincent Mannella. Kendall did

not remember the date of this meeting and could not say

it was July 23. While Rosa and Sica were with Mannella,

Kendall, upon Mannella’s request, called Joseph Vaca-

9

—— «„ 5„ͤ%ͤ„ „ * * Spree

Statement of the Case.

rello and asked him to come to the office of Mannella

Engineers. Vacarello arrived shortly thereafter and en-

tered Mannella’s private office. Kendall had no knowl-

edge of what transpired in Mannella’s office; she did not

see or hear anything. Kendall also testified that she only

saw Rosa and Sica together at the office of Mannella

Engineers on one occasion during the summer of 1974,

and that she never saw Sica in the office after the above

mentioned meeting with Mannella.

The other Government witness, Joseph Vacarello,

testified that he is part owner of a landscaping and con-

tracting business, Penn Landscape and Cement Work

Company, which is located in the Pittsburgh area. He

has done work for the Borough of Monroeville which in-

cludes the development of three recreational park areas:

Hawkeye Park, Ferndale Park and Overlook Park. Vaca-

rello’s bid on the Overlook Park project (Government

Exhibit #2) was submitted on July 9, 1974; his com-

pany’s bid was the lowest base bid at $128,600.

On July 23, 1974, Vacarello received a telephone call

from Mannella with whom he enjoyed a business rela-

tionship. At Mannella’s request, Vacarello went to Man-

nella’s office where he was introduced to a Mr. Rosa and

a Mr. Sical. Vacarello stated that the Overlook Park

project was one of the topics discussed during the ap-

proximately ten minutes which he spent in Mannella’s

office. Sica explained that he represented several coun-

cilmen from Monroeville, and there was a “problem”

with the Overlook Park project. He stated that... we

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

1. Vacarello was unable to identify defendant-

appellant Sica as the same individual who was introduced

to him and spoke to him in Mannella’s office on July 23,

1974.

Statement of the Case.

donation”. The gist of the conversation was if Vacarello

was experiencing a problem in securing the contract on

the Overlook Park project, he could probably help him-

self by making a donation. No specific amount of money

was mentioned; he was simply told that Mannella would

contact him later. Vacarello testified that he did not con-

sider this donation request to be out of the ordinary in

any way; in the contracting business, it is not unusual

to be asked for a donation. Also, at no point during the

July 23 meeting was there any discussion coincerning

potential or actual suppliers of materials for the Over-

look Park project.

Vacarello stated that the meeting was friendly and

without hostility; no threats or demands were made and

he was not placed in fear of physical or economic harm.

Sica never requested any specific amount of money from

Vacarello, nor did Sica do or say anything to put Vaca-

rello in fear at the July 23 meeting or at any time there-

after. Vacarello was not at all fearful of Sica, Rosa or

Mannella; and he was not at all concerned about being

awarded the Overlook Park contract as a result of the

meeting.

Vacarello testified that he was involved in a dispute

with the Borough of Monroeville concerning work his

company had done a year earlier in Hawkeye Park. In

settlement, the Borough paid $2,000 over the bid con-

tract price to Vacarello. As a result of the dispute, cer-

tain Borough officials had developed “hard feelings” to-

ward Vacarello. Also, a controversy over zoning matters

between his brother Nick and the Borough could have

affected the relationship between Vacarello’s company

and the Borough of Monroeville.

Statement of the Case.

Vacarello testified that late in the afternoon of July

23, 1974, Mannella telephoned him and asked him to re-

turn to Mannella’s office. Vacarello proceeded to Man-

nella’s office where he saw and met with only Mannella

who told Vacarello that the amount of the donation in

regard to the Overlook Project was $10,000; this was the

first occasion on which money was discussed. Mannella

stated that the money was to be paid in cash to him.

Vacarello responded that the amount was ridiculously

high and he would not pay it or even $5,000. Mannella

then showed to Vacarello a copy of the minutes of the

Monroeville Recreation Committee meeting (Govern-

ment Exhibit #4). These minutes disclosed that Com-

mittee members had recommended that Vacarello not be

awarded the Overlook Park contract due to their dis-

satisfaction with his company’s past performance on

the Hawkeye Park project. Vacarello realized he had a

“problem” but still refused to make the donation. When

Vacarello mentioned bidding on other contracts for

Monroeville Borough, Mannella told him to save his time

and money. Vacarello then departed Mannella’s office.

Vacarello stated that he never paid any money to

any individual in regard to the Overlook Park project,

and after July 23, 1974, neither Mannella nor anyone else

asked him to make such a payment. On July 31, 1974,

after a public meeting of the Monroeville Borough coun-

cil, Vacarello’s company was awarded the Overlook Park

contract (Government Exhibit #7) which was formally

executed on August 15, 1974. Mannella was glad when

Vacarello received the contract, but Mannella never sug-

gested that Vacareilo pay the previously requested dona-

tion or any part thereof. After July 23, Mannella showed

absolutely no interest in that money even though Man-

nella and Vacarello were often together on other busi-

10

Reasons For Granting A Writ of Certiorari.

ness during that summer. Subsequent to the meeting on

July 23, Vacarello did not speak with Sica or Rosa con-

cerning any matter in regard to Overlook Park.

REASONS FOR GRANTING

A WRIT OF CERTIORARI

Petitioner Sica poses an important question of

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

by this Court. He asks this Court to determine whether

the Hobbs Act, 18 U.S.C. §1951,2 proscribes “attempted

extortion”’.

The instant indictment, alleging a violation of the

Hobbs Act, reads:

. “That on or about July 23, 1974, and continuing

until on or about August 15, 1974, in the Western

2. The Hobbs Act, 18 U.S.C. § 1951

pertinent part, the following: § , sets forth, in

§ 1951. Interference with commerce by threats

or violence

(a) 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, or com-

mits or threatens physical violence to any person or

property in furtherance of a plan or purpose to do

anything in violation of this section shall be fined

not more than $10,000 or iimprisoned not more than

twenty years, or both.”

(b) As used in this section

(2) The term “extortion” means the ob-

taining of property from another, with his con-

sent, induced by wrongful use of actual or

threatened force, violence, or fear, or under

color of official right.

— > Ser [

11

Reasons For Granting A Writ of Certiorari.

District of Pennsylvania and elsewhere, the defend-

ants, FRANK JOSEPH Rosa, a/k/a “JOE”, JOSEPH SICA

and VINCENT MANNELLA, did unlawfully and wilfully

attempt to obstruct, delay and affect interstate com-

merce, as the term “commerce” is defined in and by

Section 1951, Title 18, United States Code, and the

movement of articles and commodities in 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 Penn Land-

scape and Cement Work with his consent induced

by wrongful use of fear in that the 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 the Penn Landscape and Cement Work

and Joseph Vacarello, Jr., paid the defendants the

said amount of money. (Emphasis supplied.)

„All in violation of Title 18, United States Code,

Section 1951.”

The L court instructed the jury and wrote in its

opinion that the crime alleged in the instant indictment

was “attempted extortion”. Sica believes such a view

to be erroneous and argues that the Hobbs Act does

not proscribe such conduct. The language of the statute

is clear; the criminal conduct is not the attempt to

extort but the attempt to obstruct, delay or affect com-

merce by robbery or extortion.3 The language of the

3. The words “attempt so to do” in the Hobbs Act

refer to obstructing, delaying or affecting commerce;

grammatically, the words do not refer to robbery or

extortion.

12

Reasons For Granting A Writ of Certiorari.

indictment is consistent with that of the statute; it

alleges that the defendants did” .. . attempt to obstruct,

delay and affect interstate commerce... by extortion

_ Petitioner Sica’s argument is bolstered by a review

of the applicable judicial precedent. In deciding cases

concerning 18 U.S.C. § 1951, this Court has not included

“attempted extortion” as one of the crimes proscribed

by the statute. In United States v. Green, 350 U.S. 415,

420, 76 S.Ct. 522, 526 (1956), the Court said: “... [I]n

our view the legislation (the Hobbs Act) is directed at

the protection of interstate commerce against injury

from extortion...” (emphasis supplied). In Stirone v.

United States, 361 U.S. 212, 80 S.Ct. 270 (1960), the

Court said that the Hobbs Act “. . . speaks in broad lan-

guage, manifesting a purpose to use all the constitu-

tional power Congress has to punish interference with

interstate commerce by extortion, robbery or physical

violence” (361 U.S. at 215, 80 S.Ct. at 272; emphasis

supplied), and that ... there are two essential elements

of a Hobbs Act crime: interference with commerce and

extortion (361 U.S. at 218, 80 S.Ct. 274; emphasis sup-

plied). In a decision affirmed by the Supreme Court,

United States v. Enmons, 335 F. Supp. 641, 644 (E.D.

La. 1971), affd. 410 U.S. 396, 93 S.Ct. 1007, it was

written:

“Hence, under the Hobbs Act, in order to constitute

a crime, one must obstruct, delay, or affect inter-

state commerce or attempt to do so, by ‘robbery or

extortion’ whether or not physical violence, or

threats of physical violence to persons or property

is used.” (Emphasis supplied.)

*

13

Reasons For Granting A Writ of Certiorari.

Petitioner Sica contends that the evidence is not

sufficient to prove he violated the Hobbs Act by extor-

tion or attempted extortion.

It is a well established principle that a defendant

can only be tried upon the indictment returned against

him, and the charges therein cannot be broadened

through amendment except by a grand jury. Ex Parte

Bain, 121 U.S. 1, 9-10, 7 S.Ct. 781, 786 (1887) ; Stirone v.

United States, supra; Russell v. United States, 369

U.S. 749, 82 S.Ct. 1038 (1962). “The concern repre-

sented by these cases is that the indictment under

which the accused is prosecuted remains the same

one as brought by the grand jury rather than becoming

through ‘interpolation the indictment of the prosecutor

or the court’ ”’. United States v. De Cavalcante, 440 F. 2d

1264, 1270-1271 (3d Cir. 1971). It is also well established

that a verdict of guilty cannot be sustained without

64. .. proof beyond a reasonable doubt of every fact neces-

sary to constitute the crime . . .”. In Re Winship, 397

U.S. 358, 364, 90 S.Ct. 1068, 1073 (1970). Here, the lan-

guage of the indictment charges Sica with the “. . . at-

tempt to obstruct, delay and affect interstate commerce

... by extortion as the term ‘extortion’ is defined in and

by. . . the Hobbs Act. In order to sustain a conviction

under this indictment, extortion as it is defined in the

Act must be proven beyond a reasonable doubt. Such

proof is absent in the evidence of record. In fact, it is

uncontroverted that neither Sica nor his co-defendants

obtained property from another; the $10,000 recited in

the indictment never was paid by Vacarello to Sica, his

co-defendants or anyone else. Although he was awarded

the Overlook Park contract, Vacarello never paid any

14

Reasons For Granting A Writ of Certiorari.

amount of money to any individual in regard to that con-

tract. Since the essential element of extortion was not

established, the specific charges in the indictment have

not been proven and the verdict cannot be sustained.

Assuming arguendo that the Hobbs Act does for-

bid “attempted extortion”, the questions arise whether

or not that crime is proven by the evidence and, if it is,

whether or not Sica is guilty of it. “Attempt”, while not

specifically defined in 18 U.S.C. § 1951, means “an effort

or endeavor to accomplish a crime, amounting to more

than mere preparation or planning for it, which, if not

prevented, would have resulted in the full consummation

of the act attempted, but which, in fact, does not bring

to pass the party’s ultimate design”. Black's Law Dic-

tionary 162 (Revd. 4th Ed. 1968). “Extortion” is defined

in 18 U.S.C. § 1951 as “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”. The evidence discloses that on the

morning of July 23, 1974, a Mr. Sicat and defendants

Rosa and Mannella met with Vacarello and, among other

things, discussed the Overlook Park project on which

Vacarello’s contracting firm had placed the lowest bid

fourteen days earlier. Sica mentioned Vacarello’s “prob-

lem“ in regard to being awarded the contract, and then,

on behalf of several Borough councilmen, stated that:

„. . . we would like to see you get the job but we would

like a donation”. Vacarello was not asked for any spe-

cific amount of money; he was told that Mannella would

contact him later. Concerning this morning meeting on

= 1 —— — — to identify petitioner Sica

e gentleman with whom he conve in Mannella’

office on July 23, 1974. ei

15

Reasons For Granting A Writ of Certiorari.

July 23, 1974, the trial court instructed the jury that

there was no attempt to extort as a matter of law.

Subsequent to the morning meeting on July 23,

1974, Vacarello never spoke with the unidentified Mr.

Sica in regard to a donation or any aspect of the Over-

look Park project. Since attempted extortion did not

occur at the only meeting where both Vacarello and

Sica were present, Sica has not been shown to have com-

mitted the crime (as defined by the trial court) which

was charged. It is submitted that the words and actions

of Mannella at the meeting between him and Vacarello

can not be imputed to Sica. There is no basis in the

record for assuming that Mannella spoke and acted

with the knowledge and authorization of Sica. Moreover,

there is no evidence that Sica had agreed with Mannella

as to details, i. e., the precise words, approach and

amount of the donation.

Even if the words and actions of Mannella can

somehow be attributed to Sica, the evidence presented

by the Government in the case sub judice still fails

to demonstrate that he aided or abetted an attempted

extortion. For, it is Sica’s contention that no attempted

extortion was committed at the meeting between Man-

nella and Vacarello during the afternoon of July 23,

1974 or at any other time. To prove “extortion”, the

Hobbs Act requires a showing that property was ob-

tained by force, violence or fear. “It has been held that

to prove an attempt to extort it is necessary to show

an attempt to arouse fear United States v. Nada-

line, 471 F. 2d 340, 343 (5th Cir. 1973), cert den. 411

U.S. 951, 93 S.Ct. 1924. Here, it is certain that the meet-

ing with Mannella and his request for a $10,000 dona-

tion did not in fact cause Vacarello to be fearful of phy-

16

Reasons For Granting A Writ of Certiorari.

sical or economic harm; Vacarello was never fearful in

any way of Mannella, Sica or Rosa. Furthermore, it is

certain that neither Mannella’s words nor actions con-

stituted an attempt to arouse fear in Vacarello. If fear

of economic loss was aroused in Vacarello, it was not

instilled by Mannella but by an act of the Monroeville

Recreation Committee which had occurred prior to the

afternoon meeting between Mannella and Vacarello on

July 23, 1974. Said Committee recommended that Vac-

arello, even though he was the lowest bidder,5 not be

awarded the Overlook Park contract due to the Com-

mittee’s dissatisfaction with his company’s past per-

formance on Borough construction projects. Thus, Man-

nella was not attempting to imply that problems would

be caused if the donation was not made, nor was he at-

tempting to threaten Vacarello since, at that moment,

the Borough of Monroeville did not appear willing to

award the contract to Vacarello. Instead, Mannella was

offering a possible solution by which Vacarello might

induce certain action, i.e., the awarding of the Overlook

Park contract to Vacarello’s company. Under these cir-

cumstances, Mannella was not attempting to extort

money from Vacarello. As the Third Circuit stated in

United States v. Addonizio, 451 F. 2d 49, 72 (3d Cir.

1971), cert. den. 405 U.S. 936, 92 S.Ct. 949:

“The Hobbs Act definitions of robbery and extortion

ere taken from New York law. United States v.

Nedley, 255 F. 2d 350 (3d Cir. 1958). The definition

of extortion at the time of the Hobbs Act’s enact-

ment was found in former New York Penal Law

5. Government witness Vacarello testified that a

low bid alone does not insure that a company will be

awarded a contract.

17

Reasons For Granting A Writ of Certiorari.

§ 850, McKinney’ s Consol. Laws, c. 40. In inter-

— 2 850, the New York courts distinguished

extortion from bribery. Thus, in Hornstein v. Para-

mount Pictures, 22 Misc. 2d 996, 37 N.Y.S. 2d 404

(1942), the court pointed out that while bribery

was a voluntary payment made in order to exert

undue influence upon the performance of an official

duty, extortion involves payment in return for

something to which the payor is already legally en-

titled. In other words, while the essence of bribery

is voluntariness, the essence of extortion is duress.

People v. Dioguardi, 8 N.Y. 2d 260, 203 N.Y.S. 2d

870, 168 N.E. 2d 683 (1960).”

Here, Vacarello was not legally entitled to anything; he

was merely asked for a voluntary payment to exert in-

fluence. While such a request may constitute bribery, it

does not constitute attempted extortion.

It is also noteworthy that the Government’s evi-

dence fails to show that Sica attempted, or aided and

abetted an attempt, to obstruct, delay and affect inter-

state commerce as specifically alleged in the indictment

and required in order to prove a violation of the Hobbs

Act. Stirone v. United States, supra; United States v.

Addonizio, supra. Under this statute, trade or commerce

must be affected by extortion “in any way or degree“.

18 U.S.C. 81951 (a). Here assuming “arguendo” that at-

tempted extortion occurred, there is no evidence of such

an effect either in fact or potential. There would have

been no cancellation or delay in the construction work.

Jobs would not have been lost, nor would there have

been an alteration in suppliers or the purchase of sup-

plies. The same amount of money would have been

circulated in commerce. See: United States v. Critchley,

353 F. 2d 358 (3d Cir. 1965).

18

Reasons For Granting A Writ of Certiorari.

III.

Petitioner Sica alleges that the court of appeals has

rendered a decision in conflict with the decision of the

Fifth Circuit in Byrd v. Wainwright, 428 F.2d 1017 (5th

Cir. 1970) , by holding that the trial court did not abuse

its discretion in denying petitioner Sica’s repeated mo-

tions for severance.

Rule 14 of the Federal Rules of Criminal Procedure

permits a severance, despite the propriety of the origi-

nal joinder, if needed to avoid prejudice. Events at trial

may alter a situation such that severance is necessary

in order to preserve a defendant’s right to fair trial. A

district judge has the power to order a severance under

Rule 14, and indeed has a “continuing duty at all stages

of the trial to grant a severance if prejudice does ap-

pear.” Schaffer v. United States, 362 U.S. 511, 516

S.Ct. 945, 948 (1960). ; ys

At the trial below, Sica suffered prejudice because

he was unable to call co-defendant Frank Joseph Rosa

as a witness in his defense. Sica moved for a severance

for this reason on two occasions during trial; each mo-

tion was denied. It is clear that one defendant may not

require another to take the stand at a trial in which both

are charged since this would be inconsistent with the

privilege of a criminal defendant not to be called to the

stand at all. United States v. Housing Foundation of

America, Inc., 176 F.2d 665, 666 (3d Cir. 1949). Since

Rosa was unwilling to forego his Fifth Amendment

right, he was unavailable to testify on Sica’s behalf at

their joint trial.

There is a line of cases which evidence the courts’

lack of willingness to sever a joinder of defendants. How-

19

Reasons For Granting A Writ of Certiorari.

ever, these decisions rest on a skepticism regarding both

whether a codefendant would actually be called and

whether he would actually testify. In the instant case,

no hint of skepticism on either of these questions was

present. Counsel for Sica respectfully represented that

he would call Rosa if he could. Rosa informed counsel

for Sica that he would testify on Sica’s behalf in a sepa-

rate trial, but not at the joint trial of all co-defendants.

Furthermore, Rosa was offered to the trial court as an

exculpatory witness in favor of Sica. Counsel for Sica

explained that Rosa told him in the presence of his

(Rosa’s) counsel that he could and would provide ex-

culpatory testimony. Counsel for Sica considered this

exculpatory testimony to be significant and necessary

to his client’s defense. He even set forth the specific na-

ture of the testimony as follows:

“Mr. Livingston: It having been represented to

me by Mr. Rosa in the presence of his counsel that

he could if called exculpate or provide testimony

that would tend to exculnate Mr. Sica ineluding but

not limited to testimony that Mr. Sica is the father-

in-law of Mr. Rosa and Mr. Rosa had a business re-

lationship with Mr. Mannella and on the occasion of

July 23, Mr. Sica went along with Mr. Rosa to Mr.

Mannella's office and did not participate in any con-

versation with Mr. Vacarello or Mr. Mannella as

has been testified to by Mr. Vacarello. It has been

by inference suggested to me that there are other

matters that Mr. Rosa would not discuss with me.

It appearing that other matters may tend to incrimi-

nate him.”

In the face of so compelling a need for testimony which

goes to the heart of the issues involved, the severance

20

Reasons For Granting A Writ of Certiorari.

requested by Sica should have been granted. See: United

States v. Gleason, 259 F. Supp. 282, 284-285 (S.D.N.Y

1966) ; United

— ited States v. Shuford, 454 F.2d 772 (4th Cir.

In rejecting Sica’s argument, the ma jori

court of appeals applied five factors — "hee

v. Wainwright, supra, 428 F.2d at 1019-1020 which

ought to be considered in deciding whether to seve

a defendant under these circumstances (see: 1

— E, 64a-67a). They concluded that on balance, even

ough Sica was unable to call a witness who might have

contradicted the only inculpatory testimony against him,

the trial judge had not abused his di ion i i

serie is discretion in refusing

The three dissenters on the court of

soned that the majority had mistakenly ——

record and erroneously interpreted Byrd v. Wainwright

supra (see : Appendix E, 69a-77a). Using the Byrd anal-

ysis, the dissenters reached a different result, believing

that the severance motions should have been treated

with “greater deference as was d i

one in x i

senters concluded: inline

It should be most particularly noted that in Byrd

the opposite result from that favored by the ma-

jority in the case at bar was reached, and severance

was granted, though the facts favoring severance in

Byrd were not as strong as in the case at bar.”

(Appendix E, 77a). |

Sica maintains that the B inwri

yrd v. Wainwright facto

adopted by the court of appeals were in fact met. —

sel for Sica clearly set forth co-defendant Rosa’s pro-

posed exculpatory testimony and the reason for the

21

Reasons For Granting A Writ of Certiorari.

severance. Also, Rosa himself indicated to counsel for

Sica that he would testify on Sica’s behalf in a separate

trial. Thus, it appears that the principal reason for the

majority’s holding was the concern for judicial econ-

omy” (Appendix E, 66a). Sica vigorously argues that

when a conflict exists between an individual’s constitu-

tional right to a fair trial and the administrative work-

ings of the judiciary, the former must supersede the

latter.

IV.

Petitioner Sica submits that this Court ought to de-

cide whether a defendant at a joint trial is entitled to a

severance after the Government has rested and before a

co-defendant presents defense testimony in order that

the jury may consider only the Government’s evidence

against him.

At the trial below, petitioner Sica argued that a

severance was necessary because of the prejudice caused

by the presentation of co-defendant Mannella’s defense

after Sica had rested. Sica moved for a severance on this

ground and requested that the trial court instruct the

jurors that they only could consider the Government’s

evidence, and not Mannella’s, in weighing the case

against him. After this motion was denied, counsel for

Sica informed the trial court that since Mannella’s de-

fense was wholly independent of Sica’s case he wouid not

participate in the presentation of Mannella’s defense by

cross-examination or otherwise. Throughout this presen-

tation, he repeatedly objected, moved that the testimony

be stricken and moved for relief from prejudicial joinder

under Rule 14 of the Federal Rules of Criminal Proce-

dure. Each objection and motion was overruled by the

trial court.

22

Reasons For Granting A Writ of Certiorari.

The prejudice to Sica because of the joinder to

co-defendant Mannella was painfully obvious through-

out the presentation of Mannella’s defense. First, during

both the opening and closing address to the jury, Man-

nella’s counsel commented upon his client’s willingness

to give up his Fifth Amendment right and to testify

truthfully in his own behalf; such a comment could only

serve to unfairly draw attention to and raise suspicions

about Sica’s silence. Second, the existence of antagonis-

tic defenses was inherently prejudicial to Sica. See:

Moore’s Federal Practice, Vol. 8, § 14.04 (3) at 14-29;

Bruton v. United States, 391 U.S. 128, 88 S.Ct. 1620

(1968). Third, certain testimony by Mannella himself

constituted evidence of criminal conduct not charged in

the indictment. Such irrelevant and damaging testimony

was bound to have an adverse effect on the jury’s con-

sideration of the case against Sica. It would have been

inadmissible in a separate trial, but due to the instant

joinder it was improperly injected into the case. Fourth,

Mannella testified to statements which he made in

regard to the incident in question long after its termina-

tion. Since these statements were made in the absence

and without the knowledge of the accused (Sica), they

are inadmissible to prove the guilt of one other than

the declarant. Krulewitch v. United States, 336 U.S. 440,

69 S.Ct. 716 (1948). The prejudicial effect of the admis-

sion of these statements against one other than the

declarant and the lower court’s failure to caution the

jury accordingly would ordinarily require a reversal of

a conviction. Fiswick v. United States, 144 U.S. 263, 12

S.Ct. 224 (1891). Fifth, Mannella’s testimony affirmed

that Sica was the “Mr. Sica” with whom Vacarello con-

versed on July 23, 1974. As noted above, Vacarello could

not make an in-court identification of Sica and was not

23

Reasons For Granting A Writ of Certiorari.

certain that Sica was the individual who he met. To

have Mannella fill this critical gap in the Government’s

case was extremely prejudicial to Sica. With this par-

ticular testimony and all that was introduced as a result

of Mannella and Sica being tried together, the jury

could have based its conviction of Sica on the case

presented by his co-defendant. In view of this obvious

prejudice, it is plain that petitioner Sica was denied his

constitutional right to a fair trial.

V.

In the court of appeals, petitioner Sica argued that

the trial court erred in refusing to instruet the jury with

the standard accomplice charge and its corollary under

Cool v. United States, 409 U.S. 100, 93 S.Ct. 354 (1972).

This argument was rejected, and Sica now contends that

the court of appeals’ decision is in conflict with an ap-

plicable decision of this Court, Cool v. United States,

supra.

Petitioner Sica contends that co-defendant Man-

nella must be classified as an accomplice of Sica under

the circumstances of the instant matter. Since Mannella

testified in his own behalf and presented incriminating

evidence as to Sica, Sica is entitled to a jury instruction

on the standard accomplice charge. It is submitted that

the failure to give this charge as well as its corollary

under Cool v. United States, supra, was error. Cool re-

quires that where accomplice testimony is offered the

trial court must instruct the jury that it can either con-

vict or acquit on the basis of accomplice testimony. 409

U.S. 103, n. 4, 93 S.Ct. 356-357, n. 4. Furthermore, Man-

nella’s testimony also presented exculpatory evidence

as to Sica, eg., that Mannella only had one meeting with

24

Conclusion.

Vacarello on the morning of July 23, 1974 when Sica

and Rosa were present and that the alleged afternoon

meeting on that date never occurred. By virtue of Cool,

exculpatory testimony of an accomplice need only be

proven by a fair preponderance of the evidence in order

to raise a reasonable doubt. 409 U.S. 101-105, 93 S.Ct.

354-357.

CONCLUSION

For the reasons discussed above, petitioner Sica

requests a writ of certiorari issue to review the judg-

ment of the United States of Appeals for the Third

Circuit.

Respectfully submitted,

THOMAS A. LIVINGSTON

DENNIS J. CLARK

Attorneys for Petitioner

Certificate of Service.

CERTIFICATE OF SERVICE

Petitioner, Joseph Sica, by his attorneys, Thomas A.

Livingston, Esq., and Dennis J. Clark, Esq., hereby cer-

tify that the within Petition for Writ of Certiorari has

been forwarded by mail for filing to the Clerk of the

Supreme Court of the United States in Washington,

D.C., and that a true and correct copy of said Petition

has been forwarded by mail to the Office of the Solicitor

General of the United States, Department of Justice,

Washington, D.C.

THOMAS A. LIVINGSTON, Esq.

DENNIS J. CLARK, Esq.

Attorneys for Petitioner

APPENDIX *

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 con-

spiracy to violate the Hobbs Act, Title 18, § 1951 (Inter-

ference with commerce by threats or violence). Essen-

tially the government contends that the defendants con-

spired to and attempted to obstruct interstate commerce

by attempting to extort $10,000.00 from Joseph Va-

carello, Jr.

Several pretrial motions have been filed. All defend-

ents 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 pursuant to appointments which were in-

valid for lack of specificity under 28 U.S.C., § 515(a) and

therefore under Rule of Criminal Procedure 6(d) unau-

thorized persons were in the Grand Jury Room. The

2a

Appendix A.—Memorandum, Order Dated May 19, 1975.

defendants also seek an evidentiary hearing of a discov-

ery nature to determine the circumstances under which

the appointments were made, the directives of the Attor-

ney 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 au-

thority of the government attorneys.

The second motion asks the severance of the trial of

Mannella from the others because of pretrial publicity

which referred to Rosa and Sica as figures connected

with organized crime. Three newspaper articles were

attached to the motion which refer to and Sica as

members of the organized crime family of John Sebas-

tian 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 conf€nds that

Mannella’s Grand Jury testimony has been given Man-

nella and he fears that it contains admissions or confes-

sions which, if used, will compromise the other defend-

ants. 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. Murtagh stated that he had presented the case to

the Grand Jury. His letter of appointment was furnished,

3a

Appendix A.—Memorandum, Order Dated May 19, 1975.

dated October 2, 1973, executed by Henry E. Petersen,

Assistant Attorney General.

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)1 render the appointments void

because the letter of appointment is too general. This

depends on whether the reader concludes that Congress

intended to limit the Attorney 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 spe-

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

v. Brown, Cr. No. 74-867 (S.D. N. V., 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:

1. 28 U.S.C. 515 (a) provides, inter alia: The At-

torney General or any other officer of the Department

of Justice, or any attorney specially appointed by the

Attorney General under law, may, when specifically

directed by the Attorney General, conduct any kind of

legal proceeding...”

4a

Appendix A.—Memoraadum, Order Dated May 19, 1975.

“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 de-

fendants concerning the Attorney General’s directives

or his interoffice practices or what he may have told

Murtagh respecting his authority.

The motion to dismiss because of the alleged viola-

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

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 pub-

licity makes the granting 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 answer 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

provided 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

5a

Appendix A.—Memorandum, Order Dated May 19, 1975.

government counsel will not create a problem so well

warned of in advance of trial.

Therefore, the motion to sever because of a possible

Bruton problem is denied. However, it will be reconsid-

ered in the event defendants and the government present

the Mannella transcript within 10 days from the date

hereof along with a renewed 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.

6a ,

Appendix B.—Memorandum, Order Dated Oct. 29, 1975.

APPENDIX B.

Memorandum and Order 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.

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

defendants Frank Joseph Rosa, Joseph Sica and Vincent

Mannella with violations of the federal conspiracy sta-

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

U.S.C. § 1951 (Count 2). The conspiracy count was dis-

missed on motion of defendants 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 family business

which did landscape contracting work under the name

Penn Landscape and Cement Work. Vacarello testified

that on the morning of July 23, 1974, he received a phone

call at his place of business from the office of Vincent

7a

Appendix B.—Memorandum, Order Dated Oct. 29, 1975.

Mannella requesting that he come up to Mannella’s office,

which was located nearby. Mannella, who was a business

acquaintance of Vacarella, was the founder and presi-

dent of Mannella Engineers, a private consulting engi-

neering firm.

Vacarello testified that pursuant to the phone call,

he went to Mannella’s office where Mannella introduced

him to defendants Rosa and Sica, who presented them-

selves 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 construction 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 Man-

nella would contact him later that day.

According to Vacarella’s testimony, he received a

message from his answering service during the after-

noon of the same day that Mannella had called. He re-

turned 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 bidder, or any other work from the

Borough of Monroeville. Vacarello also testified that he

became aware of his “problem” at this afternoon meet-

8a

Appendix B.—Memorandum, Order Dated Oct. 29, 1975.

ing with Mannella when Mannella showed him a copy of

the minutes of the Borough’s Recreation Committee

which indicated that he would not be awarded the Over-

look 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 principal arguments, to wit,

(a) that Count II of the indictment fails to

charge an indictable offense; and

(b) that the offense of which defendants stand

convicted is not the offense charged in the indict-

ment;

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 con-

victions 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 requested by defendants in certain of their points

for charge;

(c) errors within the Court’s charge;

(d) error in admission of certain evidence; and

9a

Appendix B.—Memorandum, Order Dated Oct. 29, 1975.

(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 argu-

ment on the motions, it is the opinion of this Court that

all motions should be denied.

I.

THE INDICTMENT

Count II of the indictment charges that defendants

“did unlawfully and willfully attempt to obstruct,

delay and affect interstate commerce... by extor-

tion as the term ‘extortion’ is defined in and by Sec-

tion 1951, Title 18, United States Code; that is to

sav the said defendants did wrongfully and unlaw-

fully 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 induced 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 commerce “by extortion as the term

‘extortion’ is defined in and by Section 1951,” which is

as follows:

10a

Appendix B.—Memorandum, Order Dated Oct. 29, 1975.

“The term ‘extortion’ means the obtaining of

property from another, with his consent, induced

by wrongful use of actual or threatened force, vio-

lence 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., 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’

contentions seriatim.

II.

THE Hospss ACT

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

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

lays or affects commerce or the movement of any

article or commodity in commerce by robbery or

extortion or attempts or conspires so to do, or com-

mits or threatens physical violence to any person or

property in furtherance of a plan or purpose or pur-

pose to do anything in violation of this section

[shall be guilty of an offense.]”

lla

Appendix B.—Memorandum, Order Dated Oct. 29, 1975.

It is defendants’ contention that while the above-

quoted section clearly proscribes any attempt to ob-

struct, delay or affect 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 ob-

struct, 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 defined in

the Act. i 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

completed, i.e., the victim must have acceded to the un-

lawful demand.

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

Since there is no federal common law of crimes, fed-

eral criminal law is purely statutory. United States v.

Berrigan, 482 F.2d 171, 185 (3rd Cir. 1973). Therefore,

an attempt to commit a federal offense is itself an offense

only when the section defining the offense specifically in-

cludes 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.

1. Defendants distinguish between extortion as the

term extortion is defined by § 1951(b)(2) and “what

might be loosely referred to as another extortion pro-

vision,” 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.

12a

Appendix B.—Memorandum, Order Dated Oct. 29, 1975.

Defendants urge that the only crimes established by

§ 1951(a) are:

1. The obstruction, delay or affectation of com-

merce 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.

They argue that the wording of the Act precludes

an interpretation which would make it an offense to

attempt to obstruct, delay or affect commerce by at-

tempted extortion.

The premise for this claim is that the phrase “at-

tempts or conspires so to do” as used in the Act refers

to interference with commerce and not to the word, ex-

tortion. 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 re-

quires proof of completed extortion and if construed to

cover attempted extortion, is constitutionally void for

vagueness.” The Second Circuit rejected this argument:

“The textual analysis of the statute would clearly

embrace an attempt or conspiracy to interfere with

commerce by extortion even though the attempt or

conspiracy failed because the extortion was uncom-

pleted. 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.

13a

Appendix B.—Memoraneit, Order Dated Oct. 29, 1975.

Defendants have submitted a letter of three lan-

guage experts which would support their grammatical

argument. (See Exhibit B“ to Defendant Rosa’s Brief).

However, after consideration of the Act’s legislative his-

tory, 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.

1. Legislative History of § 1951.

The present § 1951 is derived from the Anti-Rack-

eteering Act of 1934.” United States v. Varlack, supra,

at 671. Section 2 of the 1934 Act, 48 Stat. 979-980, pro-

vided :

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

relation to any act in any way or in any degree af-

fecting trade or commerce or any article or com-

modity moving or about to move in trade or com-

merce—

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

of or attempt 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

consent, induced by wrongful use of force or fear,

or under color of official right; or

(d) conspires or acts concertedly . . . to com-

mit any of the foregoing acts; shall upon conviction

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

14a

Appendix B.—Memorandum, Order Dated Oct. 29, 1975.

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 at-

tempt to do anything in violation of section 2 shall

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

60 Stat. 420.

In 1948 the Act was codified and assumed its pres-

ent form, 62 Stat. 793 c. 645.

“Nothing in the legislative history of either the 1946

amendment or the 1948 codification indicates a con-

gressional purpose to effect a change in the 1934

Act in so far as it was aimed at conspiracies to ex-

tort or rob or attempts to extort or rob which ob-

struct, delay or affect foreign or interstate com-

merce. 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,”

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

declared that certain terrorist activities of various Team-

sters 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).

15a

Appendix B.—Memorandum, Order Dated Oct. 29, 1975.

United States v. Varlack, supra, at 672.3

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

history that Congress did not intend to eliminate an at-

tempt to extort from the Act’s prohibition. Defendants,

citing numerous sections of Title 18, contend that Con-

gress is aware of how to make an attempt a criminal of-

fense 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. Padil-

la, supra, at 788 (J. Friendly, concurring).

Defendants seek to invoke the maxim that penal

stututes should be strictly construed. However, as stated

in United States v. Padilla, supra, at 787:

“But that canon ‘is not an inexorable command to

override common sense and evident statutory pur-

pose,’ United States v. Brown, 333 U.S. 18, 25 and

does not ‘require that the Act be given the “narrow-

est meaning.“ It is sufficient if the words are given

3. The elimination of separate sections for con-

spiracies 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 sections 3 and 4 of the 1946 Act

omitting as unnecessary the words ‘participates 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 ac-

complishment of the crime, a principal himself.”

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

16a

Appendiæ B. Memorandum, Order Dated Oct. 29, 1975.

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 pre-

sented 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 inter-

fere with commerce by extortion even though the at-

tempt 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 Appeals stated:

“The Hobbs Act proscribes a number of separate

offenses: (1) robbery; (2) extortion; (3) attempt-

ed robbery or extortion; and (4) conspiracy to com-

mit robbery or extortion.”

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

F.2d 530, 534 (5th Cir. 1971) cert. denied, 405 U.S. 955

(1972).

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

17a

Appendix B.—Memorandum, Order Dated Oct. 29, 1975.

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 sub-

stantive 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 govern-

ment 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. Mitchell, 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. Iozzi, 490 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 ex-

tortion, 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 phys-

ical violence. Defendants argue that the same is not true

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

argue requires that the property be obtained in order to

make out a substantive offense.

18a

Appendix B.—Memorandum, Order Dated Oct. 29, 1975.

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 dis-

cerned 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 in-

dictment. The assertion is based on the language of the

indictment which charges defendants with an attempt

to obstruct, delay or affect commerce by extortion, as

the term “extortion is defined in and by § 1951.” Defend-

ants argue that under the definition of extortion con-

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

have been completed. Having rejected defendants’ argu-

ment 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).

III.

JCINDER

Among the arguments raised by defendants in sup-

port of their respective motions for new trial, only one

19a

Appendix B.—Memorandum, Order Dated Oct. 29, 1975.

requires extensive discussion, i.e., whether it wasterror

to deny defendants’ repeated‘ motions to sever for relief

from prejudicial joinder. We conclude that it was not.

Defendants were properly joined in a single indict-

ment 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 proper-

ly tried together. ö

Primarily, for reasons of economy of time in judicial

administration, the general rule has evolved that per-

sons 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. Shu-

ford, 454 F.2d 772, 775-776 (4th Cir. 1971), and a de-

fendant is not entitled to a separate trial merely because

it might offer him a better chance of acquittal. 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 administration, 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 with-

in the sound discretion of the trial court. Opper v. United

States, 348 U.S. 84 (1954), United States v. Stitt, 380 F.

4. Defendants requested severance prior to trial,

during the direct examination of government’s 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).

20a

Appendix B.—Memorandum, Order Dated Oct. 29, 1975.

Supp. 1172, 1176 (W.D. Pa. 1974), and involves a balanc-

ing® of the interests of the public in avoiding a multi-

plicity of litigation and the interest 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 demon-

strating that he is sufficiently prejudiced by the joinder

to warrant severance. As we have said, the determina-

tion of the elusive criterion of prejudice rests within the

judicial discretion at the trial level, see 8 Mocre's Fed-

eral 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 Ny

other counsel’s examination of the principal govern-

ment witness:

“The prejudicial nature of joinder to this de-

fendant is evident from the standpoint of the entire

trial. For example, 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 witness 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 evidence of

5. In Byrd v. Wainwright, 428 F.2d 1017 (5th

Cir. 1970), the Court offers guidelines for evaluating

motions for severance based on a desire to offer ex-

culpatory testimony of a co-defendant.

21a

Appendix B. Memorandum, Order Dated Oct. 29, 1975.

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.

Third, Rosa contends that his joint trial with de-

fendants Mannella and Sica was inherently prejudicial

because of antagonistic 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 gov-

ernment 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 à fair trial, effective assistance of counsel, due proc-

ess and compulsory process to secure witnesses in his

22a

Appendix B.—Memorandum, Order Dated Oct. 29, 1975.

behalf were abrogated by the court’s denial of his mo-

tions 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 re-

direct, 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. Whether or

not Vacarello’s statement that he prepared a written

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

(the date of the meeting) so that in the event “[I] would

end up missing I would have wanted that to be found

.-’7 would have come out at a separate trial is purely a

matter of speculation. But even assuming that it would

not have, its admission was not so prejudicial as to

warrant a severance. The jury was instructed that de-

fendants 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 (5th Cir. 1962). In

our view, the fact that the jury was permitted to con-

sider 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.®

6. See Transcript, 247-248.

7. Tr. 242-243.

8. Tr. 389.

23a

Appendix B.—Memorandum, Order Dated Oct. 29, 1975.

Defendants cite DeLuna v. United States, supra, for

the proposition that comments by counsel for co-defend-

ant Mannella to the effect that Mannella would testify

forthrightly and honestly necessarily prejudiced Rosa

and Sica who elected 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

cousin Gomez were charged jointly in a two-count indict-

ment 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 attorneys and

each attorney defended his own client as he saw fit with-

out regard to the interest of the other defendants. At

the trial, after Gomez’s pretrial motion for severance

had been denied, DeLuna did not testify. Gomez, how-

ever, did testify and blamed everything on DeLuna. Ac-

cording to Gomez he was an “innocent victim of circum-

stances.”

„[Hlis only connection with the narcotics was

when he and DeLuna were riding in Gomez’s auto-

mobile; 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 com-

ments on DeLuna’s failure to testify which were strenu-

ously objected to by counsel for DeLuna. Gomez was

acquitted and DeLuna convicted. In reversing DeLuna’s

conviction the Court of Appeals for the Fifth Circuit

held that a defendant’s constitutionally guaranteed right

to remain silent, free from prejudicial comment, applies

24a

Appendix B.—Memorandum, Order Dated Oct. 29, 1975.

to statements by a co-defendant’s attorney as well as

statements by the prosecution or the court. Further-

more, 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 extended 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 trial judge must order the de-

fendants triedjseparately to avoid putting “Justice to

the task of simultaneously facing in opposite directions.”

308 F. ad 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

9. Judge Bell, in a concurring opinion, argues that

counsel should be limited in his comments to statements

of the type made by counsel for Mannella here but

should not be permitted to go so far as to infer a co-

defendant’s guilt from his silence. See 8 Moore’s Federal

Practice, § 14.04[3], at 14-40—14-48.

— —

25a

Appendix B. Memorandum, Order Dated Oct. 29, 1975.

not. Therefore, the statements complained 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 statenient of co-de-

fendant’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 suf-

fered 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 ad-

vance of trial were required where there is a representa-

tion to the court that one co-defendant does not expect

to take the stand while another or others do expect to

testify,

“This would eleiminate joint trials, or vest in the de-

fendant the right to a mistrial during final argu-

ments, or, in the alternative, build in reversible er-

ror, all in the disgretion of the defendants. The law

contemplates no such end.”

308 F.2d at 156.

Finally, in the court’s charge, the jury was in-

structed:

“The law never imposes upon a defendant in a crim-

inal 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 inference from his failure to do so, that

is, the defendant need not testify in his own defense

26a

Appendix B.—Memorandum, Order Dated Oct. 29, 1975.

and I repeat that you may not draw any adverse in-

ference against him from his failure to testify.“ 10

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 preju-

dicial factors do not give rise to severance: that

another defendant is charged with more serious

offenses, that defenses of co-defendants are gen-

erally antagonistic...”

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

ever, 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 (5th Cir.

1972). We have carefully reviewed the record and fully

agree with the government’s contention that the net ef-

fect of Mannella’s testimony was to exculpate all three

defendants.

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 748, is also applicable here.

„All three defendants were charged as to the

same events. It would not be reasonable to re-

10. Tr. 368.

— —

27a

Appendix B. Memorandum, Order Dated Oct. 29, 1975.

quire separate trials merely because the quality of

the defense of each defendant might vary, if the

defenses do not conflict.”

In answer to defendants’ fourth argument we be-

lieve that both 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 Man-

nella's defense in connection with the charges against

Rosa and Sica were properly denied. In effect, the grant-

ing of either request would have amounted to a sever-

ance. The indictment in our view charged a joint attempt

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 Mannella’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 preju-

diced the other defendants. The court also instructed the

jury that you should consider each of these defendants

separately.“ 11 The trial strategy employed by counsel

for Rosa and Sica whereby neither counsel participated

in any cross-examination of defendant Mannella was

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

denied an opportunity to do so.

Finally, we reject Sica’s argument that a severance

was necessary when his counsel advised the court that

Rosa would testify on Sica’s behalf if a severance were

granted. Sica raised his contention that Rosa had testi-

mony exculpatory as to Sica, which Rosa would be will-

11. 389—Tr.

28a

Appendix B.—Memorandum, Order Dated Oct. 29, 1975.

ing to testify to in a separate trial, after the United

States had rested. The United States submits that rais-

ing 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

indictment 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 continuing duty at all stages of

the trial to grant a severance if prejudice should ap-

pear. 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 rever-

sed 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 protest-

ing Echeles’ innocence, and considering the obvious

importance of such testimony to Echeles, it is error

to deny the motion for a separate trial.”

ae — — + - 4 =

— Ä Oe et rt oe

—— aes

— —

29a

Appendix B.—Memorandum, Order Dated Oct. 29, 1975.

352 F. ad 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.”

Fusthermore, the cases are consistent in their holding

that a defendant must make a showing that the testi-

mony would be exculpatory in effect. See, e.g., Smith v.

United States, 385 F.2d 34, 38 (5th Cir. 1967), Byrd v.

Wainwright, 428 F.2d 1017, 1020 (5th 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 sup-

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

view the evidence and reasonable inferences that may be

drawn therefrom in the light most favorable to the pros-

ecution and determine as a question of law whether

SS . W-- .]

30a

Appendix B.—Memorandum, Order Dated Oct. 29, 1975.

there is substantial evidence, either direct or circum-

stantial, to support the verdict. 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 at-

tempted extortion you must find beyond a rea-

sonable doubt that:

A. He intentionally went to Mannella’s

office to participate 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 Over-

look 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 defend-

ants could have prevented him from get-

ting the Overlook contract or other con-

tracts from the Borough of Monroeville.

31a

Appendiæ B. Memorandum, Order Dated Oct. 29, 1975.

E. That Vacarello believed the threats,

that is, that he was anxiously concerned

by them.

F. That if the extortion had been carried

out and the $10,000.00 paid, interstate com-

merce 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 insufficient as a matter of law to permit a jury to

find guilt under the court’s charge. We disagree.

The government’s principal witness, Joseph Vaca-

rello, 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, Man-

nella introduced him to defendants, Rosa and Sica. Fol-

lowing the introductions, Vacarello testified:

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

in Monroeville?’ And I said, Ves, I did.’ Well, Over-

look 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.“

12. Tr. 384-385, 404-405.

13. Tr. 64-65.

32a

Appendix B.—Memorandum, Order Dated Oct. 29, 1975.

Vacarello said that at the time he had no idea what

type of problem Sica was talking about nor what type

of donation he was talking about. Later, Vacarello testi-

fied that he was told that Vince would call him later,

after which he left Mannella’s office. Later that same

day, Vacarella testified that he received a phone mes-

sage from his answering service that Mannella’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. I was 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, I 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.’ wae

14. Tr. 72-73.

33a

Appendix B.—Memorandum, Order Dated Oct. 29, 1975.

Upon being asked if Mannella told him why he had

brought Vacarello and the other two defendants to-

gether, Vacarello answered:

“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 fad out at that meeting with Mr.

Mannella 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 Vacarel-

lo said, They do other work in Monroeville,” Mannella

responded, “Save your time, save your money,” or some-

thing on that order. Vacarello then left Mannella’s office.

The government submits that the evidence clearly

established a common scheme, whereby the three defend-

ants, designating Mannella as their spokesman and mid-

dleman, attempted to “shake down” Vacarello, and that

despite the fact that only Mannella was present at the

time of the attempt, 16 defendants Rosa and Sica were

15. Tr. 78.

16. 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.

34a

Appendix B.—Memorandum, Order Dated Oct. 29, 1975.

equally guilty because of their presence and participa-

tion at the earlier meeting.

As previously mentioned, the court instructed the

jury under 18 U.S.C. § 2, the aiding and abetting statute.

This was 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 convicted 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 some-

thing 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 abet-

tor,“ 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 conduct or other special circumstances

attending his presence at a crime must be such as to

show that he had associated himself with and partici-

pated in the criminal undertaking, and something of

significance beyond his mere presence is necessary to.

justify conviction. United States v. Barber, supra, at

35a

Appendix B.—Memorandum, Order Dated Oct. 29, 1975.

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).

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). Participation may also be shown by circumstan-

tial 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. De-

Cavalcante, 440 F.2d 1264, 1275 (3rd Cir. 1971), United

States v. Klein, 515 F.2d 751 (3rd Cir. 1975) and mere

association with conspirators or knowledge of the illegal

activity is not sufficient. United States v. Prince, 515

F. 2d 564, 567 (5th 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 com-

mitted) we must decide as to 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.

36a

Appendix B.—Memorandum, Order Dated Oct. 29, 1975.

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 con-

viction to stand it is necessary to infer that Sica ap-

pointed Mannella as his spokesman. Sica argues that

the evidence was insufficient to go to a jury without ac-

cepting a theory of vicarious liability for the phone call,

and imputed authority to make the demands. While there

is not direct evidence that either Rosa or Sica knew what

Mannella was going to say, we believe that by his par-

ticipation in the earlier meeting Sica did associate him-

self with the criminal enterprise. We believe that there

is clearly evidence from Sica’s statement that “Vince will

call you” that he intended 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 sufficient to en-

able 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 inter-

pretation 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 mat-

ter 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 cannot support the jury

37a

Appendix B.—Memorandum, Order Dated Oct. 29, 1975.

verdict finding him guilty of elements “A” through F“

of the court’s charge.

We disagree since we find that the jury could con-

clude on the basis of all the evidence that Rosa had as-

sociated himself with the extortion scheme and like Sica,

had appointed Mannella as his spokesman. While the

evidence of Rosa’s participation is entirely circumstan-

tial, it is sufficient to sustain the conviction.

V

OTHER CLAIMED ERRORS

We have carefully examined all other claims of er-

ror in defendants’ motions and find them to be without

merit. In our view, only one of those claimed errors re-

quires discussion, i.e., whether the court committed pre-

judicial error in allowing Vacarello to testify as to a con-

versation which occurred subsequent to the attempt be-

tween himself and defendant Mannella wherein Mannella

asked him: “Did you pay those fellows the 87,500?“ 17

Defendants, citing Krulewitch v. United States, 336

U.S. 440, contend that the court erred in permitting

Vacarello to testify to that conversation over defen-

dants’ objection. They contend that the conversation

complained of mounted to a statement by an alleged co-

conspirator after the conspiracy was at an end which

Krulewitch held could not be used against the declar-

ant’s co-defendants. We disagree.

In the first place, the conspiracy charge was dis-

missed on defendant’s motion prior to admission of the

evidence now complained of. Furthermore, we do not

17. See Tr. 135-144.

38a

Appendix B.—Memorandum, Order Dated Oct. 29, 1975.

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 at-

tempt. Under the government’s theory wherein Man-

nella 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 there-

fore be denied.

IN THE UNITED STATES DISTRICT COURT

For the Western District of Pennsylvania

UNITED STATES OF AMERICA,

v.

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. 10

on November 20, 1975, at 10:00 A.M., for the imposition

of sentence.

BARRON P. McCUNE,

United States District Judge

39a

Appendix C—Opinion of the Court of Appeals.

APPENDIX C.

UNITED STATES COURT OF APPEALS

For THE THIRD CIRCUIT

No. 75-2411

UNITED STATES OF AMERICA

*

JOSEPH SICA,

Appellant

APPEAL FROM THE FINAL JUDGMENT OF SENTENCE OF THE

UNITED STATES DISTRICT COURT FOR THE WESTERN

DISTRICT OF PENNSYLVANIA

Criminal No. 75-80

Argued April 6, 1976

Before: Biccs, GIBBONS and HUNTER, Circuit Judges.

BLAIR A. GRIFFITH, Esquire

United States Attorney

JOHN W. MURTAGH, JR., Esquire

Special Attorney

U.S. Department of Justice

JAMES E. ROARK, Esquire

Asst. U.S. Attorney

816 Chatham Center Office Bldg.

Pittsburgh, Penna. 15219

Attorneys for Appellee

THOMAS A. LIVINGSTON, Esquire

The Colonial Building

205 Ross Street

Pittsburgh, Penna. 15219

Attorney for Appellant

f

Appendix C- Opinion of the Court of Appeals.

40a

Opinion of the Court

(Filed October 20, 1976)

Biccs, Circuit Judge.

This is an appeal from a judgment of conviction and

sentence in the United States District Court for the

Western District of Pennsylvania. Jurisdiction is based

on 28 U.S.C. § 1291.

The factual background is set forth in United States

v. Rosa, 404 F. Supp. 602 (W.D. Pa. 1975). We therefore

restrict out discussion to what we deem to be the essen-

tials. Two other defendants, Rosa and Mannella, were

indicted with Sica for conspiracy and attempted extor-

tion in violation of the Hobbs Act. 18 U.S.C. § 1951. Both

were convicted and their judgments of conviction were

affirmed by this Court. United States v. Rosa, 535 F.2d

1248 (3d Cir. 1976), petition for cert. filed, 44 U.S.L.W.

3750 (U.S. June 29, 1976) (No. 1738). The conspiracy

count was dismissed and is not before us. The second

count was retained and trial proceeded on this count.

I. Facts

The chief government witness was Joseph Vaca-

rello, 1 Jr., who was a part-owner of a landscape contract-

ing concern. Defendant Mannella, an engineer, had busi-

ness dealings with Vacarello in the past. At the behest

of Mannella, Vacarello came to Mannella’s office on the

morning of July 23, 1974. Mannella introduced him to

defendants Rosa and Sica. Sica characterized himself as

a “representative” of “several” councilmen of the Bor-

1. The District Court spelled this witness’ name

as indicated. The transcript spelled it with two c“ 's.

Since other portions of the record appear consistent

with the District Court’s spelling, we adopt it.

4la

Appendix C—Opinion of the Court of Appeals.

ough of Monroeville, Pennsylvania. Vacarello had re-

cently submitted a bid on the Overlook Park project in

Monroeville. Sica told Vacarello “we would like to see

you get the job, but . . would like a donation.” Tran-

script, page 65. The size of the donation was not speci-

fied. Vacarello testified that Sica indicated that Mannella

would call later concerning the size of the donation.

That afternoon Mannella called and asked Vacarello

to again come to his office. Vacarello went immediately

and was told by Mannella, who was alone, that the do-

nation was to be $10,000. Mannella implied that failure

to make it would mean that Vacarello would not be con-

sidered for other Monroeville projects, as well. Vacarello

was shown the recent minutes of the Public Relations

and Recreation Committee of Monroeville. The commit-

tee had recommended to the Borough Council that Vaca-

rello’s low bid on the Overlook project not be accepted.

There was some discussion of how the money was to be

split among Rosa, Sica, and Mannella and Mannella’s

role as go-between. Transcript, pages 74, 78.

Vacarello did not pay the “donation” and did receive

the contract for the Overlook Park project. So far as the

record shows, he was not denied subsequent contracts.

Sica’s appeal presents an issue as to severance

which we think requires discussion. We must deal with

a preliminary issue first, however.

II. Law

A. The Crime of Attempted Extortion

The Hobbs Act, 18 U.S.C. § 1951, provides in perti-

nent part: (a) Whoever in any way or degree obstructs,

delays, or affects commerce or the movement of any ar-

ticle or commodity in commerce, by robbery or extor-

42a

Appendix C—Opinion of the Court of Appeals.

tion 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 shall be fined not more than

$10,000 or imprisoned not more than twenty years, or

both.

“(b) As used in this section—* * * (2) The term

‘extortion’ means the obtaining of property from an-

other, with his consent, induced by wrongful use of ac-

tual or threatened force, violence, or fear, or under color

of official right.”

In the second count the indictment charged the three

defendants as follows:

„. .. 2. That on or about July 23, 1974, an continuing

until on or about August 15, 1974, in the Western

District of Pennsylvania and elsewhere, the defend-

ants, FRANK JOSEPH Rosé, a/k/a ‘JOE’, JOSEPH SICA

and VINCENT MANNELLA, did unlawfully and wilfully

attempt to obstruct, delay and affect interstate com-

merce, as the term ‘commerce’ is defined in and by

Section 1951, Title 18, United States Code, and the

movement of articles and commodities in 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 un-

lawfully attempt to obtain property of the value of

$10,000 in the form of money from Joseph Vacarello,

Jr., as agent and owner of Penn Landscape and

Cement Work with his consent induced by wrongful

use of fear in that the said defendants did threaten

the said Penn Landscape and Cement Work and Jo-

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

project and other contracts unless and until the

43a

Appendix C—Opinion of the Court of Appeals.

Penn Landscape and Cement Work and Joseph Va-

carello, Jr. paid the defendants the said amount of

money.

“All in violation of Title 18, United States Code, Sec-

tion 1951.” (Emphasis added).

Sica argues that, as used in the Hobbs Act, the word

“attempts” modifies only “obstructs, delays or affects

commerce” and does not modify “extortion”. If Sica’s

understanding of the statute is correct, his conduct

would not be proscribed because it amounted only to

attempted extortion.

United States v. Starks, 515 F.2d 112, 116 (3d Cir.

1975), 2 would seem to support the position of the United

States on this issue albeit the pertinent language may be

deemed to be dictum, for Starks assumes, rather than de-

cides, that the Hobbs Act covered attempt to extort.

There are, however, many cases whose holdings support

the position of the United States.3 Of these cases, United

States v. lozzi, 420 F.2d 512 (4th Cir. 1970), cert. denied,

402 U.S. 943 (1971), bears a strong resemblance to the

instant case. Iozzi was indicted, inter alia, for attempted

2. In Starks, we stated: “The Hobbs Act pro-

scribes a number of separate offienses: (1) robbery;

(2) extortion; (3) attempted robbery or extortion; and

(4) conspiracy to commit robbery or extortion.” 515

F.2d at 116 (Emphasis added).

3. United States v. Jacobs, 451 F.2d 530 (5th Cir.

1971), cert. denied, 405 U.S. 955 (1972); United States

v. Iozzi, 420 F.2d 512 (4th Cir. 1970), cert. denied, 402

U.S. 943 (1971); United States v. Tropiano, 418 F.2d

1069 (2d Cir. 1969), cert. denied, 397 U.S. 1021 (1970) ;

Anderson v. United States, 262 F.2d 764 (8th Cir.),

cert. denied, 360 U.S. 929 (1959) ; United States v. Green,

246 F.2d 155 (7th Cir.), cert. denied, 355 U.S. 871

(1957).

44a

Appendix C—Opinion of the Court of Appeals.

extortion. There was “fear of economic loss” in that the

defendant demanded, but did not receive, a sum of money

in exchange for a trouble-free construction job. The evi-

dence showed only that the threatened individuals, as

here, could reasonably anticipate economic loss. Id. at

515.

Sica fails to cite any case where a court has squarely

broached his novel statutory construction and found at-

tempted extortion outside the Hobbs’ proscription. The

weight of the above precedent and the Act’s legislative

history! compel us to find that attempted extortion is

4. The legislative history is set out by the District

Judge at 404 F. Supp. 607-09. The Hobbs Act was de-

rived from the Anti-Racketeering Act of 1934. United

States v. Varlack, 225 F.2d 665, 671 (2d Cir. 1955). After

the Supreme Court restricted the scope of the 1934 Act

in United States v. Teamsters Local 807, 315 U.S. 521

(1942), the statute was amended 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.” Act of July 3,

1946, ch. 537, §§ 2, 4, 60 Stat. 420 (Emphasis added).

The Varlack court observed: “Nothing in the legislative

history of the 1946 amendment or the 1948 codification

[62 Stat. 793] 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 affect foreign or interstate

commerce. Moreover, the reviser’s notes to Title 18,

§ 1951 indicate quite clearly that the ‘changes in phrase-

ology and arrangement’ were designed solely to effect

consolidation.” United States v. Varlack, supra at 672.

We agree. See Callahan v. United States, 364 U.S. 587,

591 n.5 (1961).

45a

Appendix C—Opinion of the Court of Appeals.

unlawful. 5

In view of the appellant’s conviction, we review the

record in the light most favorable to the government.

Glasser v. United States, 315 U.S. 60, 80 (1952). The evi-

dence is sufficient to sustain Sica’s judgment of convic-

tion on the second count. We come now to the severance

question.

B. The Issue of Severance

Federal Rule of Criminal Procedure 146 authorizes

severance if it is required to avoid prejudice. A District

Judge has the power to order a severance under Rule 14

and has a “continuing duty at all stages of the trial to

grant a severance if prejudice does appear.” Schaffer v.

5. Sica attempted to extort by inducing fear of

contract loss. He argues here that here was no fear of

economic harm derived from Sica et al. because any

fear indu d was due to the Recreation Committee’s

action. Sica does not present any convincing argument

showing that Vacarello would be unreasonable in be-

lieving that Sica et al. could influence the ultimate

decision maker, the Borough Council, to deprive him of

the Overlook contract if payment were not made. Cf.

United States v. Mazzei, 521 F.2d 639, 643-44 (3d Cir.)

(en banc), cert. denied, 423 U.S. 1014 (1975).

6. Rule 14 provides: “Relief from prejudicial

joinder. If it appears that a defendant or the govern-

ment is prejudiced by a joinder of offenses or of de-

fendants in an indictment or information or by such

joinder for trial together, the court may order an elec-

tion or separate trials of counts, grant a severance of

defendants or provide whatever other relief justice re-

quires. In ruling on a motion by a defendant for sever-

ance the court may order the attorney for the govern-

ment to deliver to the court for inspection in camera

any statements or confessions made by the defendants

which the government intends to introduce in evidence

at the trial.”

46a

Appendix C—Opinion of the Court of Appeals.

United States, 362 U.S. 511, 516 (1960). The standard to

determine whether a severance motion was properly de-

nied is the old one of whether the trial court abused its

discretion. The appellant concedes that the burden is on

him to demonstrate that a joint trial has so prejudiced

him as to deny him a fair trial. In United States v.

Somers, 496 F.2d 723 (3d Cir.) , cert. denied, 419 U.S. 832

(1974), we said that “[t]he burden of demonstrating

such abuse is a heavy one.” Id. at 730. See also United

States v. Armocida, 515 F.2d 29, 46 (3d Cir.), cert. de-

nied, 423 U.S. 858 (1975).

Sica moved for a severance on two occasions during

the trial on the grounds that, without severance, he

would be unable to call defendant Rosa to testify as

Sica's witness.7 Both motions were denied. Essentially,

both raise the same issue. Because Rosa did not testify

and could not be compelled to do so, Sica argued that

Sica was prejudiced by his inability to introduce Rosa’s

exculpatory testimony. The following showing was made

by Sica’s counsel:

“Mr. LIVINGSTON: It having been represented

to me by Mr. Rosa in the presence of his counsel that

he could if called exculpate or provide testimony

that would tend to exculpate Mr. Sica including but

not limited to testimony that Mr. Sica is the father-

in-law of Mr. Rosa and Mr. Rosa had a business re-

lationship with Mr. Mannella and on the occasion

of July 23 Mr. Sica went along with Mr. Rosa to

Mr. Mannella’s office and did not participate in any

conversation with Mr. Vaccarello [sic] or Mr. Man-

nella as has been testified to by Mr. Vaccarello. It

has been by inference suggested to me that there are

7. rep 323-25, 364-65.

47a

Appendix C—Opinion of the Court of Appeals.

other matters that Mr. Kosa would not discuss with

me. It appear[s] that other matters may tend to

incriminate him. He indicated a willingness to tes-

tify to these exculpatory matters, [if] not called in

this particular trial. 8

We therefore have a statement by Sica’s counsel that

Rosa would testify in the exculpatory manner stated if a

severance were granted. See United States v. Kahn, 366

F. 2d 259, 264 (2d Cir.) cert. denied, 385 U.S. 948 (1966).

There is no corroborating statement by Rosa as to what

he would say or whether he intended to testify on Sica’s

behalf and nothing was said by Rosa’s counsel. Unques-

tionably Rosa’s counsel was present at sidebar during

Mr. Livingston’s representation, and we cannot assume

that a member of the Pennsylvania bar in good standing

would let Mr. Livingston’s statements stand uncontra-

dicted if he did not deem them to be correct. Mr. Liv-

ingston’s statement was therefore supported by an im-

plicit representation that Rosa would in fact contradict

some of Vacarello’s testimony respecting the crucial

meeting on July 23, 1974.

The learned District Judge denied the motion with-

out comment but stated in his opinion filed later: “In this

case, on the other hand, defendant Sica merely repre-

sented 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 un-

supported possibility that such testimony might be forth-

coming does not make the denial of a motion for sev-

erance erroneous.’ Furthermore, the cases are consistent

in their holding that a defendant must make a showing

8. Tr. 364.

482

Appendix C—Opinion of the Court of Appeals.

that the testimony would be exculpatory in effect. See,

e.g., Smith v. United States, 385 F.2d 34, 38 (5th Cir.

1967), Byrd v. Wainwright, 428 F.2d 1017, 1020 (5th Cir.

1970) .[9] United States v. Kaufman, 291 F. Supp. 451

(S.D. N.Y 1968). That showing was not made here.” 404

F. Supp. at 614-15. We cannot agree.

If we assume the truth of Vacarello’s version of the

meeting of July 23, 1974, the evidence against Sica while

largely circumstantial, nonetheless meets the standard

of Glasser v. United States, 315 U.S. 60, 80 (1942). On

the motions for severance the issue is whether the

availability of testimony which contradicted the version

of the government’s sole witness to the sole meeting

involving Sica might have produced a different verdict.

In United States v. Somers, 496 F.2d 723, 731 (3d Cir.),

cert. denied, 419 U.S. 832 (1974), this court certainly

intimated that the denial of a severance motion which

had the effect of depriving the defendant of exculpatory

testimony of a co-defendant would be impermissible.

Clearly, if Rosa testified as represented by Mr. Living-

ston, the testimony would be exculpatory.

The Fifth Circuit has spelled out five functional rules

for ascertaining whether a severance should be granted

on the proffer of exculpatory evidence. Byrd v. Wain-

wright, 428 F.2d 1017, 1019-20 (5th Cir. 1970) :

1) Does the movant intend or desire to have

the codefendant testify? How must his intent be

made known to the court, and to what extent must

the court be satisfied that it is bona fide?

9. The court in Byrd v. Wainwright, 428 F.2d 1017,

1020 (5th Cir. 1970), did rely on oral presentation by

defendant’s counsel in granting severance. See 404 F.

Supp. at 615.

49a

Appendix C—Opinion of the Court of Appeals.

“(2) Will the projected testimony of the co-

defendant be exculpatory in nature, and how signif-

icant must the effect be? How does the defendant

show the nature of the projected testimony and its

significance? Must he in some way validate the pro-

posed testimony so as to give it some stamp of

verity [7].

“(3) To what extent, and in what manner, must

it be shown that if severance is granted there is like-

lihood that the codefendant will testify?

4) What are the demands of effective judicial

administration and economy of judicial effort? Re-

lated to this is the matter of timeliness in raising

the question of severance.

“(5) If a joint trial is held, how great is the

probability that a codefendant will plead guilty at

or immediately before trial and thereby prejudice

the defendant, either by cross-defendant prejudice

or by surprise as it relates to trial preparation?”

(Footnotes omitted. )

In this case rules (1) and (3) were unquestionably satis-

fied, and rule (5) is not involved. The fourth, the time-

liness of the tender in light of judicial economy, is not

even urged by the government, and on this record could

not be. The critical factor is the exculpatory value of the

tendered testimony. In judging that factor it must be

kept in mind that Sica was kept in the case at the end of

the government’s proofs solely on one theory: that he

had silently acquiesced in conversations testified to by

Vacarello which suggested that defendants Mannella and

Rosa at later meetings would be acting on his behalf. The

denial of the severance motion served to deprive Sica of

50a

Appendix C—Opinion of the Court of Appeals.

the one witness who could have contradicted Vacarello

on the contents of the conversation. The district court

did not find that Rosa would not have testified in the

manner claimed or that Sica’s counsel made the motion

in bad faith. The government’s case against Sica was

thin, and the testimony of a witness who could impeach

the one government witness upon whom that case de-

pended cannot be regarded as de minimis.

The distinguished District Judge seems to have

taken the position that the offer of proof was insuffi-

ciently specific. But how much more specific could it

have been, considering that while the joint trial con-

tinued Rosa continued to assert the privilege against

self-incrimination? The representation in our view was

sufficiently explicit to sustain a severance. 10

Accordingly, we will reverse Sica’s judgment of con-

viction.

HUNTER, Circuit Judge, dissenting:

Finding no abuse of discretion, I respectfully dissent.

My reliance is upon a full review of the record and upon

Judge McCune’s thorough opinion reported at 404 F.

Supp. 602 (W.D. Pa. 1975).

Therefore, I would affirm.

10. We make the suggestion that in the future

counsel seeking a severance put the evidence relied on

in the record.

51a

Appendix D— Order Granting Petition for Rehearing.

APPENDIX D.

UNITED STATES COURT OF APPEALS

For THE THIRD CIRCUIT

No. 75-2411

UNITED STATES OF AMERICA

v.

JOSEPH SICA,

Appellant

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

Present: SEITz, Chief Judge, and Biccs, VAN DUSEN,

ALDISERT, ADAMS, GIBBONS, ROSENN, HUNTER, WEIS and

GARTH, Circuit Judges.

Upon consideration of appellee’s petition for re-

hearing en banc in the above-entitled appeal, and a ma-

jority of the active judges having voted for rehearing

en banc, .

It is ORDERED that appellee’s petition for rehearing

in the above-entitled appeal be, and hereby is, granted;

and

It is FURTHER ORDERED that the judgment of this

court entered October 20, 1976, be, and hereby is, va-

cated; and

It is FURTHER ORDERED that the Clerk of this Court

list this appeal for rehearing before the court en banc,

at a time to be set at th convenience of the court.

By THE CourRT :—

VAN DUSEN

Circuit Judge

Dated: December 16, 1976

52a

Appendix E—Opinion of the Court of Appeals.

APPENDIX E.

UNITED STATES COURT OF APPEALS

For THE THIRD CIRCUIT

No. 75-2411 ;

UNITED STATES OF AMERICA

v

JOSEPH SICA,

Appellant

On Appeal From the United States District Court

For the Western District of Pennsylvania

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

Argued April 6, 1976

Present: Biccs, GisBoNs and HUNTER, Circuit Judges.

Reargued May 12, 1977

Present: Szrrz, Chief Judge, Biccs, VAN DUSEN,

ALDISERT, ADAMS, GIBBONS, ROSENN, HUNTER, WEIS and

GARTH, Circuit Judges.

BLA A. GRIFFITH

United States Attorney

JOHN W. MURTAGH, JR.

Special Attorney

U.S. Department of Justice

JAMES E. ROARK

Assistant U.S. Attorney

816 Chatham Center Office Bldg.

Pittsburgh, Pennsylvania 15219

Attorneys for Appellee

Appendix E—Opinion of the Court of Appeals.

THOMAS A. LIVINGSTON

DENNIS J. CLARK

The Colonial Building

205 Ross Street

Pittsburgh, Pennsylvania 15219

Attorneys for Appellant

(Filed July 6, 1977)

HUNTER, Circuit Judge:

Joseph Sica appeals from his conviction on a charge

of attempted extortion in violation of the Hobbs Act, 18

U.S.C. § 1951.1 He argues that (1) the Hobbs Act can-

not be interpreted to reach the activity—attempted ex-

tortion—in which he allegedly engaged; (2) there was

not substantial evidence to support the conviction; (3)

the trial court’s refusal to grant him a severance from

his co-defendants prejudiced his right to a fair trial; and

(4) the court’s charge to the jury was fatally defective,

because it did not contain the “accomplice charge”

sought by Sica. Finding no merit in any of these claims,

we affirm.

1. 18U.S.C. § 1951 provides as follows:

§ 1951. Interference with commerce by threats

or violence

(a) Whoever in any way or degree ob-

structs, delays, or affects commerce or the

movement of any article or commodity in

commerce, by robbery or extortion or at-

tempts or conspires so to do, or commits

or atens physical violence to any per-

son or property in furtherance of a plan

or purpose to do anything in violation of

this section shall be fined not more than

$10,000 or imprisoned not more than

twenty years, or both.

- Appendix E—Opinion of the Court of Appeals.

I.

Joseph Sica, Frank Joseph Rosa, and Vincent Man-

nella were indicted on February 26, 1975, in the District

Court for the Western District of Pennsylvania. Count I

1. (Cont'd.)

(b) As used in this section—

(1) The term “robbery” means the

unlawful taking or obtaining of per-

sonal 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 injury,

immediate or future, to his person or

property, or property in his custody or

ssion, 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 obtaining.

40 57 the

(2) The term “extortion” means

obtaining of property from —

with his consent, induced by wrongf

use of actual or threatened force,

violence, or fear, or under color of

official right.

he term commerce“ means com-

— within the District of Columbia,

or any Territory or Possession of the

United States; all commerce between

any point in a State, Territory, Pos-

session, 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 jur-

isdiction. 1

i tion shall not be construed to

X or affect section 17 of Title

15, sections 52, 101-115, 151-166 of Title

29 or sections 151-188 of Title 45.

55a

Appendix E—Opinion of the Court of Appeals.

of the indictment alleged a conspiracy to violate 18

U.S.C. § 1951; it was dismissed during trial and is of no

further relevance. Count II charged that from July 23,

1974, to August 15, 1974, Sica, Rosa, and Mannella un-

lawfully and wilfully attempted to obstruct, delay, and

affect interstate commerce and the movement of articles

and commodities in commerce by extortion, in violation

of 18 U.S.C. § 1951.

Trial began on August 5, 1975. The first of two Gov-

ernment witnesses was Katherine Vlack Kendall. She

testified that during the summer of 1974, she had been

employed as a secretary by Mannella Engineers. At

some point during the summer, Rosa and Sica both ar-

rived to see Vincent Mannella. Kendall could not recall

the date of this meeting, but she testified that Rosa and

Sica were together at the office on only one occasion.

While Rosa and Sica were with him, Mannella had

Kendall call Joseph Vacarello and ask Vacarello to come

to the office. Vacarello arrived shortly thereafter. Ken-

dall testified that she did not know what took place

among the four men.

The Government’s chief witness was Joseph Vaca-

rello, part-owner of a landscaping and contracting busi-

ness. He testified that on July 23, 1974, he received a

telephone call from Mannella, requesting that he come to

Mannella’s office. He complied, and Mannella introduced

him to Sica and Rosa upon his arrival.

Vacarello testified that Mannella began to talk

about the Overlook Park project, a job on which Vaca-

rello’s company had a few weeks earlier submitted the

lowest bid to the Borough of Monroeville, Pennsylvania.

Sica then identified himself and Rosa as representatives

Appendix E—Opinion of the Court of Appeals.

of several unnamed members of the Borough Council.

Sica said that there was some problem with the project,

that they would like to see Vacarello get the job, but

that they would like a “donation.” Sica told Vacarello

that Mannella would call Vacarello later about the dona-

tion, and Mannella agreed.

That afternoon, according to Vacarello, Mannella

called and asked Vacarello to come to his office again.

Upon his arrival, he found Mannella alone. Mannella im-

mediately told him that the donation was to be $10,000.

Vacarello refused to pay. Mannella then clarified the

„problem“ to which Sica had alluded earlier in the day.

He showed Vacarello a copy of the minutes of a recent

Monroeville Recreation Committee meeting, which dis-

closed that the Committee had recommended that Vaca-

relo not be awarded the Overlook Park project.

Vacarello still refused to pay, telling Mannella that

he would simply bid on other Monroeville projects. Man-

nella warned him to save his time and money. There was

also, according to Vacarello, some discussion of how

Rosa, Sica and Mannella would split the donation.

Vacarello left without agreeing to pay. Neverthe-

less, he did receive the Overlook Park contract. As far as

the record shows, he was not subsequently denied other

Monroeville contracts.

Mannella was the only witness for the defense. He

testified that there was only one meeting, the one on the

morning of July 23, 1974. He claimed that at the time of

the alleged afternoon meeting, he had been out of his

office. He denied any intention to extort money from

Vacarello.

The jury evidently believed Vacarello. It convicted

all three defendants. All post-trial motions were denied

, 8 57

Appendix E Opinion of the Court of Appeals. '

in a thorough and thoughtful opinion by the district

judge, United States v. Rosa, 404 F. Supp. 602 (W.D.

Pa. 1975). This Court affirmed the convictions of Rosa

and Mannella without opinion. United States v. Rosa, 535

F. 2d 1248 (3d Cir. 1976), cert. denied, 45 U.S.L.W. 3249

( U.S., October 10, 1976). A panel of this Court reversed

Sica’s conviction, United States v. Sica, No. 75-2411 (3d

Cir. 1976), but the court in banc vacated the panel judg-

ment and granted the Government’s petition for rehear-

ing on December 16, 1976.

II.

Sica argues that a judgment of acquittal should have

been entered, because the statute under which he was

indicted, 18 U.S.C. § 1951, does not proscribe the activity

in which he was proven? to have engaged, i.e., attempted

extortion in an attempt to obstruct commerce. His argu-

ment turns largely on his reading of section 1951 (a):

(a) 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, or com-

mits or threatens physical violence to any person or

property in furtherance of a plan or purpose to do

anything in violation of this section shall be fined

not more than twenty years, or both.

Sica insists that the phrase “attempts or conspires

so to do” refers to obstruction of commerce, not to extor-

tion. Three expert grammarians submitted a letter in

2. Because this is an appeal from a judgment upon

A — ilty, 4 1 * the dow’ of the —

avorable 2 vernment. .

United States, 315 U.S. 60, 80 (1942). *

Appendix E—Opinion of the Court of Appeals.

support of this position. Thus, says Sica, the Act pro-

nibits an attempt to obstruct commerce by completing

the act of extortion, but it does not by its terms reach

merely an attempted extortion. And because an attempt

to commit a federal offense is itself an offense only when

statutorily proscribed, Sica concludes that proof of his

attempt to extort money from Vacarello does not estab-

lish any violation of section 1951.

This Court has already indicated, in dictum, that the

Hobbs Act does prohibit attempted extortion in an at-

tempt to obstruct commerce. United States v. Starks, 515

F.2d 112, 116 (3d Cir. 1975). As far as out research dis-

closes, every court of appeals that has ruled on the

question has reached a similar conclusion. United States

v. lozzi, 420 F.2d 512 (4th Cir. 1970), cert. denied, 402

U.S. 943 (1971); United States v. Tropiano, 418 F.2d

1069, 1082-83 (2d Cir. 1969), cert. denied, 397 U.S. 1021

(1970); United States v. Green, 246 F.2d 155, 157 (7th

Cir.), cert. denied, 355 U.S. 871 (1957); Hulahan v.

United States, 214 F.2d 441, 445 (8th Cir.) , cert. denied,

348 U.S. (1954); see United States v. Shackleford, 494

F.2d 67 (9th Cir.), cert. denied, 417 U.S. 934 (1974);

United States v. Jacobs, 451 F.2d 530, 534 (5th Cir.

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

This conclusion squares with the legislative history

of the Hobbs Act. Section 1951 derives from the Anti-

Racketeering Act of 1934, 48 Stat. 979. Section 2 of the

1934 Act described persons who would be guilty of

felony for doing certain things; among them was the

following:

Any person who, in connection with or in rela-

tion to any act in any way or in any degree affect-

ing trade or commerce or any article or commodity

=e 59a

Appendix E—Opinion of the Court of Appeals.

moving or about to move in trade or commerce—

(a) Obtains or attempts to obtain, by the use

of or attempt to use or threat to use force, violence,

or coercion, the payment of money or other valuable

considerations...

(Emphasis added). Congress amended the Act in 1946,

in response to a restrictive reading by the Supreme

Court.3

The amended Act, 60 Stat. 420, read in part as follows:

Sec. 2. Whoever in any way or degree ob-

structs, delays, or affects commerce, or the move-

ment of any article or commodity in Commerce, by

robbery or extortion, shall be guilty of a felony.

Sec. 3. Whoever conspires with another or

with others, or acts in concert with another or with

others to do anything in violation of section 2 shall

be guilty of a felony.

Sec. 4. Whoever attempts or participates in

an attempt to do anything in violation of section B

shall be guilty of a felony.

(Emphasis added.) Thus, an attempt to commit extor-

tion in order to obstruct commerce seems to have been

within the purview of the 1946 Act.

3. In United States v. Teamsters Local 807, 315

U.S. 521 (1942), the Court declared that certain ter-

rorist activities carried out by labor organizations fell

outside the scope of the Anti-Racketeering Act. In res-

ponse, Congress amendments in 1946, 60 Stat.

420, which were igned to bring labor terrorism with-

in the Acts ban. See United States v. Callanan, 364 U.S.

587, 590-91 (1961) ; United States v. Yorkley, 542 F.2d

300, 302-03 (6th Cir. 1976); United States v. Varlack,

225 F. 2d 665, 669 (2d Cir. 1955).

60a

Appendix E—Opinion of the Court of Appeals.

The Act was codified in 1948, and the separate sec-

tions dealing with conspiracies and attempts were con-

solidated with section 2. 62 Stat. 793 c. 645. This gave

section 1951 its present form. Nothing in the legislative

history of the codification, however, suggests any int

tion to change the Act’s ban on ttempts to rob or extort.

Indeed, the evidence suggests the contrary. The reviser’s

notes to Title 18, § 1951 state that changes in phrase-

ology and arrangement were designed solely to effect

consolidation. United States v. Varlack, 225 F.2d 665,

672 (2d Cir. 1955) .4

We hold, therefore, that section 1951 forbids at-

tempted extortion which would, if the act were com-

pleted, have the effect of obstructing commerce. This

holding gives effect to the apparent intent of Congress

and the obvious purpose of the statute.®

4. The House Report dealing with the 1948 codi-

fication explained the change:

The words “attempts or conspires so to do”

were substituted for sections 3 and 4 of the 1946

act, omitting as unnecessary the words “partici-

pates in an attempt” and the words “or acts in

concert with ancther or with others”, in view of

section 2 of this title [Title 18] which makes any

person who participates in an unlawful enterprise

or aids or assists the principal offender, or does

anything towards the accomplishment of the crime,

a principal himself.

H. R. Rep. No. 304, 80th Cong., 2d Sess A. 131 (1947).

5. Sica also argues that even if section 1951 pro-

hibits attempted extortion, no such attempt was proved

as a matter of law. The crime of extortion involves an

effort to arouse fear in the victim. Sica insists that

neither he nor his cohorts aroused any fear in Vacar-

ello; any fear of property loss—the Overlook Park con-

tract—was induced instead by the actions of the Mon-

J 2 2 61

Appendix E—Opinion of the Court of Appeals. N

III.

Sica’s next contention is that there was insufficient

evidence to support his conviction. Specifically, he points

out that he was not present at the afternoon meeting,

during wllich the attempt to extort was actually made.

He adds that there is no evidence to justify imputing to

him the words and actions of Manella at the afternoon

meeting.

While it is true that Sica was not present during the

actual attempt, there was sufficient evidence® to justify

5. (Cont’d.)

roeville Recreation Committee. In light of the not ve

subtle hints that Sica and the stags cout influence the

ultimate decision maker—the Borough Council—this

argument evaporates. The threat to Vacarello’s con-

tractual interest was clear, and it emanated from Sica

and his co-defendants: pay up and you will get the job;

refuse and you will not be considered at all. In addition,

— — that * — were not forth-

0 , Vararello wo o be wasting his ti

bidding on other Monroeville jobs. a

Sica makes two other frivolous arguments relativ

to the question of attempted extortion. First, he —

that if we interpret § 1951 to forbid attempted extor-

tion, then it is void for vagueness. In light of the rather

clear legislative history and the substantial judicial gloss

indicating that the Act does prohibit attempted extor-

tion, we cannot agree.

Second, he insists that if the crime for which he

was convicted was attempted extortion, then fatal var-

lance occurred, for the indictment charged him with an

attempt to obstruct, delay and affect interstate com-

merce ... by extortion.” Since we have already held that

the statutory language, tracked by the indictment, em-

braces attempted extortion, we cannot agree with this

claim, either.

6. See note 2 supra.

62a

Appendix E—Opinion of the Court of Appeals.

the jury’s apparent belief that Mannella spoke for Sica.

According to Vacarello, it was Sica who said that he and

Rosa represented the Monroeville council members. It

was Sica who declared: “[W]e would like to see you get

the job but we would like a donation.” Tr. at 65. And

it was Sica who told Vacarello that Manella would call

later about the size of the donation.

If the jury believed Vacarello’s story—and it ob-

viously did—there was sufficient evidence as a matter of

lav’ to support an inference that Mannella spoke on be-

half of Sica, that Sica had associated himself with the

criminal enterprise. United States v. Barber, 429 F.2d

1394, 1397 (3d Cir. 1970).

IV.

Sica claims that his right to a fair trial was preju-

diced by the trial court’s refusal to sever his trial from

that of Rosa.7? But to win reversal on this point, he must

show that the refusal to sever amounted to an abuse of

discretion, and the “burden of demonstrating such abuse

is a heavy one.” United States v. Somers, 496 F.2d 723,

7. Fed R. Crim. P. 14 provides as follows:

Relief from prejudicial joinder. If it appears

that a defendant or the government is prejudicated

by a joinder of offenses or of defendants in an indict-

ment or information or by such joinder for trial to-

gether, the court may order an election or separate

trials of counts, grant a severance of defendants or

provide whatever other relief justice requires. In

ruling on a motion by a defendant for severance the

court may order the attorney for the government to

deliver to the court for inspection in camera any

statements or confessions made by the defendants

= the government intends to introduce at the

trial.

Appendix E—Opinion of the Court of Appeals. .

730 (3d Cir.), cert. denied, 419 U.S. 832 (1974). See also

United States v. Armocida, 515 F.2d 29, 46 (3d Cir.),

cert. denied, 423 U.S. 858 (1975). Sica fails to carry that

heavy burden. ae

Just before the Government rested its case, Sica’s

counsel moved for severance. He alleged that Rosa “has

indicated a willingness to testify on behalf of Mr. Sica

but that he will not give up his right to refuse to testify

in his own trial.” Tr. at 324. This motion was denied.

After the Government rested, Sica’s counsel made

what must be considered a second request for severance,

through the request was none too clear:

MR. LIVINGSTON: It having been represented

to me by Mr. Rosa in the presence of his counsel

that he could if called exculpate or provide testi-

mony that would tend to exculpate Mr. Sica includ-

ing but not limited to testimony that Mr. Sica is the

father-in-law of Mr. Rosa and Mr. Rosa had a busi-

ness relationship with Mr. Mannella and on the oc-

casion of July 23 Mr. Sica went along with Mr. Rosa

to Mr. Mannella’s office and did not participate in

any conversation with Mr. Vaccarello [sic] or Mr.

Mannella as has been testified to by Mr. Vaccarello.

It has been by inference suggested to me that there

are other matters that Mr. Rosa would not discuss

with me. It appear[s] that other matters may tend

to incriminate him. He indicated a willingness to

testify to these excudpatory matters, [if] not called

in this particular trial.

Tr. 364. Rosa’s counsel was present during this state-

ment and remained silent throughout. Again, the trial

court denied the motion to sever.

* Appendiæ E Opinion of the Court of Appeals.

For purposes of discussion, we will assume that

Sica did intend to have Rosa testif and that the testi-

mony might have proved exculpatory. The crucial in-

quiry remains whether Sica has carried his heavy bur-

den, Somers, supra, of demonstrating that the refusal to

sever his trial was an abuse of discretion. United States

v. Finkelstein, 526 F.2d 517, 523 (2c Cir. 1975), cert.

denied. 8 ; see United States v. Addonizio,

451 F.2d 49, 62-63 (3d Cir.), cert. denied, 405 US. 936

(1972). We conclude that he has not. The district court

properly determined that counsel’s showing of possible

prejudice to the defendant was insufficient.

The Fifth Circuit has listed several factors a trial

court ought to consider in deciding whether to sever the

trial of a particular defendant:

(1) Does the movant intend or desire to have

the codefendant testify? How must his intent be

made known to the court, and to what extent must

the court be satisfied that it is bona fide?

(2) Will the projected testimony of the code-

fendant be exculpatory in nature, and how signifi-

cant must the effect be? How does the defendant

show the nature of the projected testimony and its

significance? Must he in some way validate the pro-

posed testimony so as to give it some stamp of

verity [?].

(3) To what extent, and in what manner, must

it be shown that if severance is granted there is

likelihood that the codefendant will testify?

(4) What are the demands of effective judicial

administration and economy of judicial effort? Re-

lated to this is the matter of timeliness in raising

the question of severance.

65a

Appendix E—Opinion of the Court of Appeals.

(5) If a joint trial is held, how great is the

probability that a codefendant will plead guilty at

or immediately before trial and thereby prejudice

the defendant, either by cross-defendant prejudice

or by surprise as it relates to trial preparation?

Byrd v. Wainwright, 428 F.2d 1017, 1019-20 (5th Cir.

1970).8 Although this court has not had occasion to es-

tablish such a list, we find that of the Fifth Circuit illum-

inating. In light of those factors, we discern no abuse

of discretion.

Factor number one was fulfilled. The defendant did

express a desire to have co-defendant testify, and that

desire was made known to the court.

Factor number two is more conjectural, since there

was no separate voir dire requested concerning the pro-

jected nature of Rosa’s testimony.? The significance of

the exculpatory effect of Rosa’s projected testimony is

difficult to gauge in view of the vagueness of counsel’s

8. The Second Circuit established a different list:

(1) the sufficiency of the showing that the

co-defendant would testify at a severed trial and

waive his Fifth Amendment privilege . . .; (2) the

degree to which the exculpatory testimony would

be cumulative .. .; (3) the counter arguments of

judicial economy . . .; and (4) the likelihood that

the testimony would be subject to substantial, dam-

aging impeachment... .

United States v. Finkelstein, 526 F.2d 517, 523-24 (2d

Cir. 1975), cert. denied, —— U.S. ——. Obviously, both

the Second and Fifth Circuits are concerned with similar

problems. Neither list purports to be exclusive.

9. The holding of such a voir dire would be a proper

vehicle for the resolution of the severance motion. It

would permit the parties and the court to explore, under

oath, the likelihood that the co-defendant would, indeed,

testify at any severed trial. It might also allow some

consideration of the projected testimony’s content.

Appendix E—Opinion of the Court of Appeals.

statement. Sica’s family relationship to Rosa and Rosa’s

business relationship with Mannella had already been

proved by other witnesses. The only other allegation was

that Rosa would testify that Sica “did not participate

in any conversation with Mr. Vaccarello [sic] of Mr.

Manella. ...”

Factor number three is also questionable. While

Rosa’s attorney did not contradict the statement that

Rosa was willing to testify at a separate trial, neither

did he promise that Rosa would do so. Instead, he re-

mained silent. We do not imply that Rosa’s attorney

acted in bad faith. We observe only that there was no

commitment by Rosa to follow the course charted by

Sica’s counsel.

About factor number four there can be no doubt.

Judicial economy militated strongly against severance.

The proof offered at a separate trial would have been

completely duplicative of the proof in the case sub

judice. Furthermore, the fact that the motion came so

late in the course of the trial entitled the court to view

it with some skepticism; if Rosa could genuinely excul-

pate his father-in-law completely at the close of the Gov-

ernment’s case, he ought to have been willing to do so

at the outset. The timing of the motion simply rein-

forces the inference that Rosa at that point had little to

lose by trying to help Sica get clear of the case.

Factor number five—a guilty plea—is not and can-

not be urged.

The balance among these four factors is not an easy

one to strike. It is true that Sica was unable to call a

witness who might have contradicted the only inculpa-

tory testimony—vVacarello’s. But it is also true that

Rosa was in a position to do so at absolutely no risk to

himself; that he had a family incentive for doing so;

* * 6

Appendix E Opinion of the Court of Appeals. ”

that he never promised he actually would testify; that

the lateness of the offer casts some doubt on the authen-

ticity of the projected testimony; that the severed trial

would be completely duplicative. In view of the standard

of review—abuse of discretion—we are in no position to

substitute our judgment for that of the district court.

We must allow that court’s decision to stand unless we

are convinced that Sica was deprived of his right to a

fair trial. Somers, supra at 730. Sica simply has not car-

ried his heavy burden on that score.

V.

: Finally, Sica argues that the court erred in refus-

ing to give the jury a standard accomplice charge, and

its “corollary” under Cool v. United States, 409 U.S. 100

(1972), with respect to the testimony of Mannella. In

general, an accomplice charge lo need be given only when

the alleged accomplice incriminates the defendant. See,

e. g., Crawford v. United States, 212 U.S. 183, 204

(1909) ; Cool, Supra at 103. In this case, Mannella did not

give any testimony inculpating Sica. Indeed, Mannella

spent his entire time on the stand denying that any crime

had taken place. He did place Sica at the morning meet-

ing, but no crime was committed then; moreover, the

testimony of Vlack placed Sica there, too.

10. A standard accomplice ch i

the jury as follows: P arge would instruct

An accomplice is one who unites with another

person in the commission of a crime, voluntarily

and with common intent. An accomplice does not

become incompetent as a witness because of par-

ticipation in the crime charged. On the contrary, the

testimony of one who asserts by his testimony that

he is an accomplice, may be received in evidence

and considered by the jury, even though not corrob-

orated by other evidence, and given such weight as

68a

Appendix E—Opinion of the Court of Appeals.

Cool is totally inapposite. In Cool, the trial court

impermissibly diminished the Government’s burden of

proof by instructing the jury that it could consider a

defense witnesses’s exculpatory testimony only if it

found that testimony true beyond a reasonable doubt.

Thus, the trial court erred by giving an accomplice

charge when the accomplice testified for the defense.

Here, the trial judge committed no such error. Indeed

he took care to highlight for the jury the exculpatory

portions of Mannella’s testimony. App. at 630a-32a. Cool

contains no affirmative requirement that some sort of

reverse accomplice charge be given whenever an alleged

accomplice testifies for the defense.

VI.

For the foregoing reasons, the judgment of convic-

tion will be affirmed.

To THE CLERK:

Please file the foregoing opinion.

JAMES HUNTER, III, Circuit Judge

10. (Cont’d.)

the j feels it should have. The jury, however,

44 in mind that such testimony is always

to be received with caution and considered with

great care.

(You should never 1 a 22 —— —

unsupported testimony of an alleged accom .

ae sum believe that unsupported testimony

beyond a reasonable doubt.)

0 itt & C. Blackmar, Federal J Practice & In-

2 — $17.06 (3d ed. 1977); un Gaited States v.

Armocida, 515 F.2d 29, 47 (3d Cir. 1975).

69a

Appendix E—Opinion of the Court of Appeals.

UNITED STATES v. SICA, No. 75-2411

Biacs, Circuit Judge, dissenting.

I confess to an abiding disquietude as to thé result

reached by the majority in this case.

I.

MISTAKEN INTERPRETATION OF THE RECORD

BY THE MAJORITY

I am in full agreement with the majority’s position

that severance is within the sound discretion of the trial

court. However, the question remains whether the

learned District Judge actually exercised his discretion

to deny severance until he filed his opinion on October 29,

1975, some 53 days after the last motion for severance

set out in Sica’s “Motion for Judgment of Acquittal, for

a New Trial, and for Arrest of Judgment,“ 1 viz., para-

graphs “2” and “7”, filed August 18, 1975. See United

States v. Rosa, 404 F. Supp. 602, 610-611 (1975). Sica

made two previous motions for severance, one on August

7, 1975 (Tr. 323; 370a), and another the following day,

August 8, 1975 (Tr. 364; 411a). These motions were met

with immediate and unexplained denials by the learned

Trial Judge. See the transcript and appendix-page cita-

tions set out above.

1. “Motion for Judgment of Acquittal, for a New

Trial, and for Arrest of Judgment“: 2. The Court erred

in refusing to sever defendant Sica from defendant Rosa.

... 7. Court erred in denying defendant Sica a severance

so that he would be able to call in his defense Mr. Frank

Joseph Rosa, who, in the presence of his counsel, indi-

cated that he would in a separate trial testify to matters

exculpatory in the nature set forth in the transcript and

other matters not revealed because incriminatory in

nature.”

70a

Appendix E—Opinion of the Court of Appeals.

The majority concludes that there was no abuse of

discretion by the trial court in denying Sica’s motion for

severance and in its opinion finds that Sica’s offers of

proof were neither sufficiently clear nor corroborated.

However, it is submitted that the record before us shows

no indication the learned Trial Judge exercised his dis-

cretion until he rendered his opinion and that he waited

until the very end of the trial, i. e., ended by his judgment

and opinion in Rosa, 404 F. Supp. 602. At that point, of

course, no response could be made by Sica to his ruling

on the motion or any evidence or corroboration of Sica’s

good faith could be offered. Had the trial court informed

or indicated to Mr. Livingston, Sica’s counsel, that he

desired a corroborating statement from Rosa as to what

he, Rosa, would say, or whether he intended to testify

on Sica’s behalf, with Rosa’s counsel, Mr. Gondelman,

standing at sidebar conference with Mr. Livingston,

Sica’s counsel, as was the case in Byrd v. Wainwright,

428 F. 2d 1017 (5th Cir. 1970), one must assume that Mr.

Gondelman would have informed the court then and there

if Mr. Livingston, Sica’s counsel, was misstating the

facts. I cannot but believe that had the trial court made

the suggestion of amplification of the record, that the

suggestion would not have been promptly complied with

by counsel for Sica. The majority’s emphasis upon Byrd

v. Wainwright, supra, is not misplaced, but should be

predicated upon an exercise of discretion by the district

court.

The position taken by the Trial Judge seems similar

to that of an old time English boxing referee, who merely

“keeps the ring” and offers neither act nor word to

facilitate the contest, yet Rule 2, Fed. R. Crim. Proc., 18

U.S. C., provides:

Appendix E Opinion of the Court of Appeals. *

“Purpose and Construction. These rules are

intended to provide for the just determination of

every criminal proceeding. They shall be construed

to secure simplicity in procedure, fairness in ad-

ministration and the elimination of unjustifiable ex-

pense and delay.“

II.

ERRONEOUS INTERPRETATION BY THE MAJORITY OF

BYRD v. WAINWRIGHT

The majority analyzes Sica’s contention that the

district court committed reversible error by refusing his

motions for severance, relying on the Fifth Circuit’s

opinion in Byrd v. Wainwright, 428 F.2d 1017 (5th Cir.

1970). I have no quarrel with the majority’s reliance on

Byrd except for the fact that that reliance does not go

far enough. Byrd, a state habeas corpus case, sets forth

five factors which as a matter of a constitutional mini-

mum ought to be considered when a court is faced with

a motion to sever. They are:

“(1) Does the movant intend or desire to have

the codefendant testify? How must his intent be

made known to the court, and to what extent must

the court be satisfied that it is bona fide?

“(2) Will the projected testimony of the code-

fendant be exculpatory in nature, and how signifi-

cant must the effect be? How does the defendant

show the nature of the projected testimony and its

significance? Must he in some way validate the pro-

＋ — so as to give it some stamp of ver-

y [7].

“(3) To what extent, and in what manner, must

it be shown that if severance is granted there is

likelihood that the codefendant will testify?

72a

Appendix E—Opinion of the Court of Appeals.

“(4) What are the demands of effective judicial

administration and economy of judicial effort? Re-

lated to this is the matter of timeliness in raising the

question of severance. :

“(5) If a joint trial is held, how great is the

probability that a codefendant will plead guilty at

or immediately before trial and thereby prejudice

the defendant, either by cross-defendant prejudice

or by surprise as it relates to trial preparation?”

Id. at 1019-1020 (notes omitted).

In the instant case the majority concludes that no

abuse of discretion, amounting to a deprivation of a fair

trial, occurred, using the Byrd analysis. I am compelled

to a different result.

In respect to Factor “1” of Byrd, supra, relating to

the desire of the movant to have his co-defendant Rosa

testify, was, in my view and also according to the ma-

jority opinion, met by Sica.

The second factor set out in Byrd, the exculpatory

nature of the testimony, the majority, quite remarkably,

finds “conjectural.” At Sica’s second request his attor-

ney, Mr. Livingston, said that Rosa would give excul-

patory testimony on Sica’s behalf if called in a separate

trial. It is quoted in full in this opinion, infra. (Tr. 364;

411a). In judging that factor it must be kept in mind

that Sica was kept in the case at the end of the Govern-

ment’s proofs solely on one theory: that he had silently

acquiesced in conversations testified to by Vacarello

which suggested that defendants Manella and Rosa at

later meetings would be acting on his behalf. The denial

of the severance motion served to deprive Sica of the one

witness who could have contradicted Vacarello on the

. * 7

Appendix E Opinion of the Court of Appeals.

contents of the conversation. The district court did not

find that Rosa would not have testified in the manner

claimed or that Sica’s counsel made the motion in bad

faith. The Government’s case against Sica was thin, and

the testimony of a witness who could impeach the one

Government witness upon whom that case depended

cannot be regarded as de minimis. There is no element

of conjecture present as to exculpatory value.

The majority opinion also concludes in effect that

the statement of the reason for severance was not clear,

but on August 7, 1975, the following transpired (Tr. 324;

371a): .

“Mr. Livingston [Sica’s counsel]: It has been

represented to me that Mr. Rosa is prepared and

has testimony that would tend to exculpate Mr.

Sica. I cannot call Mr. Rosa in this trial in view of

the fact that he is a defendant on trial. Out of the

presence of the jury I am informing the Court that

I propose to call him as a witness. He has indicated

a willingness to testify on behalf of Mr. Sica but

that he will not give up his right to refuse to testify

in his own trial. I, therefore, request that the Court

sever either Mr. Rosa or Mr. Sica from this particu-

lar trial.

“The Court: In other words, you want me to

sever Rosa?

“Mr. Livingston: I care not, either one, your

Honor.

“The Court: Either one?

“Mr. Livingston: Well, if Rosa is severed he

cannot then refuse to testify in his own trial.

74a

Appendix E Opinion of the Court of Appeals.

“The Court: I understand your motion to be

sever Rosa, the same motion as Mr. Gondelmanl[2]

made.

“Mr. Livingston: It is not the same, I want

a trial where I can call Mr. Rosa as a witness and

that can be accomplished by my request to sever Mr.

Sica because if Mr. Sica is severed and later goes

to trial he has no problem that he has now with cal-

ling Mr. Rosa as a witness because Mr. Rosa will go

to conclusion here and he can be called as a witness

at that time in a separate trial.” (Emphasis added).

On August 8, 1975, the following tran

This text is long and has been trimmed here. Open the source document for the complete record.