The opinion of the court was delivered by: MCCUNE
In a two count indictment the United States charged defendants Frank Joseph Rosa, Joseph Sica and Vincent Mannella with violations of the federal conspiracy statute, 18 U.S.C. § 371 (Count 1) and the Hobbs Act, 18 U.S.C. § 1951 (Count 2). The conspiracy count was dismissed on motion of 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 Mannella requesting that he come up to Mannella's office, which was located nearby. Mannella, who was a business acquaintance of Vacarello, was the founder and president of Mannella Engineers, a private consulting engineering 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 themselves as representatives of unnamed members of the Monroeville Borough Council. At the meeting Vacarello was asked if he had submitted a bid on behalf of Penn Landscape for the 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 Mannella would contact him later that day.
According to Vacarello's testimony, he received a message from his answering service during the afternoon of the same day that Mannella had called. He returned the call whereupon Mannella requested him to come to his office again. Vacarello testified that he did so.
Upon his arrival, and while only he and Mannella were present, Vacarello testified that Mannella told him that the "donation" was to be $10,000.00. His testimony was that he was also told that if he refused to make the donation, he would not get the Overlook Park project on which he was low bidder, or any other work from the Borough of Monroeville. Vacarello also testified that he became aware of his "problem" at this afternoon meeting with Mannella when Mannella showed him a copy of the minutes of the Borough's Recreation Committee which indicated that he would not be awarded the Overlook Park project.
The jury convicted all three defendants.
Now before the court are post trial motions filed on behalf of defendants Rosa and Sica. Those motions are:
1. Motions in arrest of judgment under Rule 34, Fed.R.Crim.P., in support of which defendants advance two 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 indictment;
2. Motions for judgment of acquittal under Rule 29, Fed.R.Crim.P., in support of which defendants argue that the evidence is insufficient to sustain the convictions as a matter of law; and
3. In the alternative, motions for new trial under Rule 33 alleging trial errors, including, inter alia :
(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
(e) failure to declare a mistrial after improper closing argument by the prosecution.
After careful consideration of the trial record, the briefs of counsel and the points raised at oral argument on the motions, it is the opinion of this court that all motions should be denied.
Count II of the indictment charges that defendants
"did unlawfully and willfully attempt to obstruct, delay and affect interstate commerce . . . by extortion as the term 'extortion' is defined in and by Section 1951, Title 18, United States Code; that is to say the said defendants did wrongfully and unlawfully attempt to obtain property of the value of $10,000 in the form of money from Joseph Vacarello, Jr. as agent and owner of the Penn Landscape and Cement Work with his consent 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:
"The term 'extortion' means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right."
18 U.S.C. § 1951(b)(2). Secondly, when the indictment charges the wrongful use of fear, it is fear of economic loss, (see United States v. Varlack, 225 F.2d 665, 668 (2d Cir. 1955)), i.e., 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.
18 U.S.C. § 1951, the so-called Hobbs Act, provides:
"(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section [shall be guilty of an offense.]"
It is defendants' contention that while the above-quoted section clearly proscribes any attempt to obstruct, 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 obstruct, delay or affect commerce by attempted extortion when there is no threat or use of physical violence and the indictment charges extortion of the type defined in the Act.
Stated otherwise, defendants argue that where, as here, the fear of economic loss is the only force of 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 unlawful demand.
A. Is 'Attempted Extortion' a Hobbs Act Offense ?
Since there is no federal common law of crimes, federal criminal law is purely statutory. United States v. Berrigan, 482 F.2d 171, 185 (3rd Cir. 1973). Therefore, an attempt to commit a federal offense is itself an offense only when the section defining the offense specifically includes an attempt within its proscription. United States v. Padilla, 374 F.2d 782, 787, n. 7., (2nd Cir. 1967); United States v. Joe, 452 F.2d 653, 654 (10th Cir. 1972); see also Rule 31(c), Fed.R.Crim.P.
Defendants urge that the only crimes established by § 1951(a) are:
1. The obstruction, delay or affectation of commerce or the movement of any article in commerce by
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 attempted extortion.
The premise for this claim is that the phrase " attempts or conspires so to do " as used in the Act refers to interference with commerce and not to the word, extortion. The identical argument was made in United States v. Tropiano, 418 F.2d 1069, 1082 (2d Cir. 1 6) w9ehre9 the appellants argued that "The Hobbs Act requires 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 to conspiracy to interfere with commerce by extortion even though the attempt or conspiracy failed because the extortion was uncompleted. United States v. Pranno, 385 F.2d 387, 389-390 (7th Cir. 1967), cert. denied, 390 U.S. 944, 88 S. Ct. 1028, 19 L. Ed. 2d 1132 (1968)."
Defendants have submitted a letter of three language experts which would support their grammatical argument. (See Exhibit "B" to Defendant Rosa's Brief). However, after consideration of the Act's legislative history, its construction by the judiciary in previous cases and the arguments presented here, we are convinced that it was clearly the intent of Congress to punish attempted extortion.
1. Legislative History of § 1951.
The present § 1951 is derived from the "Anti-Racketeering Act of 1934." United States v. Varlack, supra, at 671. Section 2 of the 1934 Act, 48 Stat. 979-980, provided:
"Sec. 2. Any person who, in connection with or in relation to any act in any way or in any degree affecting trade or commerce or any article or commodity moving ...