APPEAL FROM THE FINAL JUDGMENT OF SENTENCE OF THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA Criminal No. 75-80
Before: BIGGS, GIBBONS and HUNTER, Circuit Judges.
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 our discussion to what we deem to be the essentials. Two other defendants, Rosa and Mannella, were indicted with Sica for conspiracy and attempted extortion 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. d 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.
The chief government witness was Joseph Vacarello,*fn1 Jr., who was a part-owner of a landscape contracting concern. Defendant Mannella, an engineer, had business 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 Borough of Monroeville, Pennsylvania. Vacarello had recently 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." Transcript, page 65. The size of the donation was not specified. 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 donation was to be $10,000. Mannella implied that failure to make it would mean that Vacarello would not be considered for other Monroeville projects, as well. Vacarello was shown the recent minutes of the Public Relations and Recreation Committee of Monroeville. The committee had recommended to the Borough Council that Vacarello'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.
A. The Crime of Attempted Extortion
The Hobbs Act, 18 U.S.C. § 1951, provides in pertinent part: "(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 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 another, with his consent, induced by wrongful use of actual or threatened force, ...