UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
filed: October 20, 1976.
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
Before: BIGGS, GIBBONS and HUNTER, Circuit Judges.
BIGGS, 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 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, 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, and continuing until on or about August 15, 1974, in the Western District of Pennsylvania and elsewhere, the defendants, FRANK JOSEPH ROSA, a/k/a 'JOE', JOSEPH SICA and VINCENT MANNELLA, did unlawfully and wilfully attempt to obstruct, delay and affect interstate commerce, 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 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 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.
"All in violation of Title 18, United States Code, Section 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),*fn2 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 decides, that the Hobbs Act covered attempt to extort. There are, however, many cases whose holdings support the position of the United States.*fn3 Of these cases, United States v. Iozzi, 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 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 evidence 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 attempted extortion outside the Hobbs' proscription. The weight of the above precedent and the Act's legislative history*fn4 compel us to find that attempted extortion is unlawful.*fn5
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 (1942). The evidence is sufficient to sustain Sica's judgment of conviction on the second count. We come now to the severance question.
B. The Issue of Severance
Federal Rule of Criminal Procedure 14*fn6 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. United States, 362 U.S. 511, 516 (1960). The standard to determine whether a severance motion was properly denied 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 "[the] 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. denied, 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.*fn7 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 relationship 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. 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 [appears] that other matters may tend to incriminate him. He indicated a willingness to testify to these exculpatory matters, [if] not called in this particular trial..."*fn8
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. Unquestionably 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 uncontradicted if he did not deem them to be correct. Mr. Livingston's statement was therefore supported by an implicit 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 without comment but stated in his opinion filed later: "In this case, on the other hand, defendant Sica merely represented that Rosa would testify in a manner exculpating Sica if either were severed. In United States v. Kahn, 381 F.2d 824, 841 (7th Cir. 1967), the court stated: 'The unsupported possibility that such testimony might be forthcoming does not make the denial of a motion for severance erroneous.' Furthermore, the cases are consistent in their holding that a defendant must make a showing that the testimony would be exculpatory in effect. See, e.g., Smith v. United States, 385 F.2d 34, 38 (5th Cir. 1967), Byrd v. Wainwright, 428 F.2d 1017, 1020 (5th Cir. 1970).*fn9 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 codefendant would be impermissible. Clearly, if Rosa testified as represented by Mr. Livingston, 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. Wainwright, 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?
"(2) Will the projected testimony of the codefendant be exculpatory in nature, and how significant 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 proposed 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? Related 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 satisfied, and rule (5) is not involved. The fourth, the timeliness 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 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 depended cannot be regarded as de minimis.
The distinguished District Judge seems to have taken the position that the offer of proof was insufficiently specific. But how much more specific could it have been, considering that while the joint trial continued Rosa continued to assert the privilege against self-incrimination? The representation in our view was sufficiently explicit to sustain a severance.*fn10
Accordingly, we will reverse Sica's judgment of conviction.
HUNTER, Circuit Judge:
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.