ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. No. 75-80).
Biggs, Gibbons and Hunter, Circuit Judges. Seitz, Chief Judge, Biggs, Van Dusen, Aldisert, Adams, Gibbons, Rosenn, Hunter, Weis and Garth, Circuit Judges. Biggs, Circuit Judge, dissenting.
Joseph Sica appeals from his conviction on a charge of attempted extortion in violation of the Hobbs Act, 18 U.S.C. § 1951.*fn1 He argues that (1) the Hobbs Act cannot be interpreted to reach the activity - attempted extortion - 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.
Joseph Sica, Frank Joseph Rosa, and Vincent Mannella were indicted on February 26, 1975, in the District Court for the Western District of Pennsylvania. Count I 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 unlawfully 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 Government 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 arrived 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. Kendall testified that she did not know what took place among the four men.
The Government's chief witness was Joseph Vacarello, part-owner of a landscaping and contracting business. 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 Vacarello'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 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 donation, 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 immediately 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 disclosed that the Committee had recommended that Vacarello not be awarded the Overlook Park project.
Vacarello still refused to pay, telling Mannella that he would simply bid on other Monroeville projects. Mannella 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. Nevertheless, 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 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, 429 U.S. 822, 97 S. Ct. 71, 50 L. Ed. 2d 83 (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 judgment and granted the Government's petition for rehearing on December 16, 1976.
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*fn2 to have engaged, i.e., attempted extortion in an attempt to obstruct commerce. His argument 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 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.
Sica insists that the phrase "attempts or conspires so to do" refers to obstruction of commerce, not to extortion. Three expert grammarians submitted a letter in support of this position. Thus, says Sica, the Act prohibits 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 establish any violation of section 1951.
This Court has already indicated, in dictum, that the Hobbs Act does prohibit attempted extortion in an attempt to obstruct commerce. United States v. Starks, 515 F.2d 112, 116 (3d Cir. 1975). As far as our research discloses, every court of appeals that has ruled on the question has reached a similar conclusion. United States v. Iozzi, 420 F.2d 512 (4th Cir. 1970), cert. denied, 402 U.S. 943, 29 L. Ed. 2d 111, 91 S. Ct. 1607 (1971); United States v. Tropiano, 418 F.2d 1069, 1082-83 (2d Cir. 1969), cert. denied, 397 U.S. 1021, 25 L. Ed. 2d 530, 90 S. Ct. 1262 (1970); United States v. Green, 246 F.2d 155, 157 (7th Cir.), cert. denied, 355 U.S. 871, 2 L. Ed. 2d 76, 78 S. Ct. 122 (1957); Hulahan v. United States, 214 F.2d 441, 445 (8th Cir.), cert. denied, 348 U.S. 856, 99 L. Ed. 675, 75 S. Ct. 81 (1954); see United States v. Shackelford, 494 F.2d 67 (9th Cir.), cert. denied, 417 U.S. 934, 94 S. Ct. 2647, 41 L. Ed. 2d 237 (1974); United States v. Jacobs, 451 F.2d 530, 534 (5th Cir. 1971), cert. denied, 405 U.S. 955, 31 L. Ed. 2d 231, 92 S. Ct. 1170 (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 relation to any act in any way or in any degree affecting trade or commerce or any article or commodity 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.*fn3 The amended Act, 60 Stat. 420, read in part as follows:
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. 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 2 shall be guilty of a felony.
(Emphasis added.) Thus, an attempt to commit extortion in order to obstruct commerce seems to have been within the purview of the 1946 Act.
The Act was codified in 1948, and the separate sections dealing with conspiracies and attempts were consolidated 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 intention to change the Act's ban on attempts to rob or extort. Indeed, the evidence suggests the contrary. The reviser's notes to Title 18, § 1951 state that changes in phraseology and arrangement were designed solely to effect consolidation. United States v. Varlack, 225 F.2d 665, 672 (2d Cir. 1955).*fn4
We hold, therefore, that section 1951 forbids attempted extortion which would, if the act were completed, have the effect of obstructing commerce. This holding gives effect to the apparent intent of ...