The opinion of the court was delivered by: SIMMONS
The defendant, Joseph Lena, was tried before a jury and was convicted on two counts of extorting money from architectural firms in connection with the construction of two school buildings, in violation of Title 18, United States Code Section 1951.
The matter is now before this Court on defendant's Motion for a New Trial and Motion in Arrest of Judgment. Defendant's Motion for a New Trial asserts twelve (12) reasons why a new trial should be granted, while the Motion in Arrest of Judgment asserts four (4) reasons why the verdict should be set aside, judgment arrested and the defendant discharged. This case involved two (2) counts of alleged violations of Title 18, United States Code, Section 1951.
The first count of the indictment charges that the defendant unlawfully and willfully obstructed, delayed and affected interstate commerce by attempting to and attaining an alleged sum of $ 8,000.00 from Donald G. Williams and Edmond George Good, Jr., architects in the construction of the Grandview Elementary School; that this alleged sum was obtained by wrongful use of fear and under color of official right by the defendant between July, 1973, and continuing to May, 1977, while the defendant was a member of the Derry Area School Board in Westmoreland County, Pennsylvania.
The second count of the indictment charges that the defendant again unlawfully and willfully obstructed, delayed and affected interstate commerce by extortion, in that he attempted to and obtained an alleged sum of Five Thousand ($ 5,000.00) Dollars from Desmone and Szalai Associates, and Charles L. Desmone, Architects for the construction of the Eastern Westmoreland Area Vocational Technical School, that the alleged sum was obtained by the defendant by the wrongful use of fear and under color of official right between March 1974, and continuing until 1976, while the defendant was a member of the school board for the Eastern Westmoreland Area Vocational Technical School and a member of the joint operating committee for this school board.
The evidence of trial showed that in April of 1971, the architectural firm of Williams, Shields, Snyder, and Goas was selected for an elementary school construction project in Derry Township. Over the next two years, the firm did a feasibility study, and prepared schematic drawings for the Grandview Elementary School. During this time, the firm earned roughly fifteen (15%) per cent of its fee, or $ 60,000.00-$ 70,000.00, but had been paid very little money (Tr. 97-101).
In July of 1973, Donald G. Williams, a partner in Williams, Shields, Snyder and Goas, met with the defendant, who was then the president of the Derry Township School Board, in a restaurant in Breezewood. The defendant said that "they had to have somewhere in the neighborhood of $ 12,000.00 from (the firm) to keep the project going." (Tr. 102) At first Williams refused, but when the defendant persisted, Williams said that he would discuss the matter with his partners (Tr. 106-107). Williams met with his partners, and they agreed to make payments to Lena because they "were well into the project and had a big investment and felt that they could, even though (the firm) had the contract, could figure out some way to fire us." (Tr. 107) Between July of 1973, and April of 1977, the firm made ten or twelve payments totalling approximately $ 8,000.00 to Lena. The payments usually occurred after the firms had submitted bills to the school district. Lena would call Williams and advise him that he would "have to take care of them if the bill was going to get on the agenda." (Tr. 111)
The evidence showed that Williams, Shields, Snyder and Goas was licensed to do business in Maryland, as well as in Pennsylvania. In the early 1970's the firm had a good deal of business in Maryland and maintained an office there (Tr. 115-116). As part of its responsibilities in connection with the Grandview Elementary School project, the firm supervised construction of the school building, which included materials imported from a number of states other than Pennsylvania (Tr. 120-123).
The evidence at trial also showed that the Eastern Westmoreland Vocational Technical School, built in 1975, was sponsored by three school districts: Latrobe, Derry Area and Ligonier Valley. The 27-member school board for the Vo-Tech School was comprised of nine members from each of the participating districts. Between 1968 and 1975, the defendant represented Derry Area on the Vo-Tech School Board. He was also on the nine-member joint operating committee from 1972 to 1975, and on the site selection committee beginning in 1971 (Tr. 399-402).
The Vo-Tech School was designed by the architectural firm of Desmone and Szalai (Tr. 402). Charles Desmone testified that his firm was selected for the Vo-Tech School project in June of 1970. Thereafter, the firm spent approximately $ 30,000.00, in the three and one-half year site selection process. A site for the school was approved by the joint board in March of 1974 (Tr. 311-312).
Late in 1973, or early in 1974, the defendant asked Desmone to meet him for lunch. At the meeting Lena told Desmone that it was customary for the architects in state construction projects to pay a portion of their fees to secure their jobs (Tr. 316). Lena further indicated that he was "in a position to control the members of the Derry Board in exchange for money." (Id.) Desmone said he "would have to think about that," but, after a second conversation with Lena, agreed to pay him $ 6,000.00, (Tr. 317-318). Desmone agreed to pay the money because he "had spent over $ 30,000.00, in the site selection process," and felt that there was no way to retrieve that money, and "if the project didn't go ahead, then there was no way (he) could get the $ 30,000.00 out." (Tr. 318)
Desmone made five or six payments of between $ 800.00, and $ 1,200.00. The first payment was made sometime in 1974, and the last in 1975. The payments were usually made about the times that the architectural firm submitted its invoices for its services. Desmone would place a check in an envelope and put the envelope in the map holder on the passenger side of his automobile. He would then pick up Lena, and they would go to lunch. While travelling to or from the restaurant, Lena would take the envelope (Tr. 318-322).
The evidence showed that Desmone and Szalai purchased supplies from outside Pennsylvania (G. Ex. 7; Tr. 322-323), and that materials used in the construction of the Vo-Tech School were imported from outside Pennsylvania (G. Ex. 1; Tr. 327-328). As part of its responsibilities in connection with the school construction project, the architectural firm supervised construction, and ensured that the materials purchased-including those purchased out of state-met its specifications (Tr. 321-322).
Did this Court err in failing to grant the defendant's motion for acquittal at the close of the government's case, and for a directed verdict at the close of the defendant's case, for the reason that there was lacking sufficient credible evidence to establish the requisites of the government's case to prove the defendant's guilt "beyond a reasonable doubt"?
It is the opinion of this Court that there was sufficient evidence produced by the government to submit both counts of this case to the jury, and it is further the opinion of this Court that the evidence presented to the jury was sufficient to sustain the defendant's conviction.
In his first argument, the defendant makes a lengthy attack on the credibility of the government's witnesses. At best, however, he raises the same factual issues that were submitted to the jury and were decided against him. The Court's function is not to "weigh evidence" or to "judge the credibility of witnesses." United States v. Greenlee, 517 F.2d 899, 902-903 (3d Cir. 1975), cert. denied, 423 U.S. 985, 96 S. Ct. 391, 46 L. Ed. 2d 301 (1975). At this point in the proceedings the question is not whether the Court agrees with the jury, but rather it is whether viewed in the light most favorable to the government, the evidence supports the guilty verdicts. E. g., United States v. Kenny, 462 F.2d 1205, 1226-1227 (3d Cir.), cert. denied, 409 U.S. 914, 93 S. Ct. 233, 34 L. Ed. 2d 176, 93 S. Ct. 234 (1972). We respectfully submit that the evidence-particularly the clear and unequivocal testimony of Donald Williams and Charles Desmone-provides substantial support for the finding that the defendant extorted money in connection with two school construction projects.
Thus, the defendant's specific attacks on the credibility of Williams and Desmone are beside the point. The defendant was entitled to test their credibility in cross-examination and to attack it in closing argument. When the jury chose to believe the two men, however, it was acting within its proper role as factfinder. Even the uncorroborated testimony of an accomplice may form the evidentiary basis for a conviction. See Cool v. United States, 409 U.S. 100, 103 n.4, 93 S. Ct. 354, 356, n.4, 34 L. Ed. 2d 335 (1972); United States v. Armocida, 515 F.2d 29, 48 (3d Cir. 1975), cert. denied, 423 U.S. 858, 96 S. Ct. 111, 46 L. Ed. 2d 84 (1975). There is no basis upon which its determination can properly be disturbed.
In any event, Williams and Desmone were credible witnesses. Each testified very definitely that the defendant had expressly asked them for money and had indicated that, if payments were not made, their respective school contracts would be in jeopardy. Although when first approached by agents of the Federal Bureau of Investigation, each man had denied making payments, there was no evidence that either man had ever lied under oath.
The defendant contends that the evidence failed to show that the defendant was in fact in a position to influence the Derry Area or Vo-Tech School Boards. No such showing was necessary, however. As the Third Circuit held in United States v. Mazzei, 521 F.2d 639, 643-644 (3d Cir. 1975), cert. denied, 423 U.S. 1014, 96 S. Ct. 446, 46 L. Ed. 2d 385 (1975), in order to show that in making a threat, a public official acted under color of his official right, it is not necessary to establish his actual power to carry out his threat. A wrongful use of his office is made out when he exploits a reasonable belief on the part of his victim that the power to carry out the threat exists. Id. As the Eighth Circuit has put it: "There is no requirement ... that the official have the actual power needed to perform an act which is the basis of the extortionate scheme." United States v. Brown, 540 F.2d 364 (8th Cir. 1976). See United States v. Harding, 563 F.2d 299 (6th Cir. 1977).
Was there sufficient and proper evidence presented to the jury to warrant the jury in finding that the acts of the defendant were extortionate and that said extortion did in some "way ...