United States v. Ronald Salahuddin

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______
No. 13-1464
______
UNITED STATES OF AMERICA
v.
RONALD SALAHUDDIN,
Appellant
______
No. 13-1751
______
UNITED STATES OF AMERICA
v.
SONNIE L. COOPER,
Appellant
______
On Appeal from the United States District Court
for the District of New Jersey
(D. N.J. Nos. 3-10-cr-00104-001 & 3-10-cr-00104-002)
District Judge: Honorable Freda L. Wolfson
______
Argued June 10, 2014
Before: FISHER, COWEN and TASHIMA,* Circuit Judges.
(Filed: September 3, 2014)
Thomas R. Ashley, Esq. [ARGUED]
Ashley & Charles
50 Park Place
Suite 1400
Newark, NJ 07102
Attorney for Appellant in No. 13-1464
Alan L. Zegas, Esq. [ARGUED]
552 Main Street
Chatham, NJ 07928
Attorney for Appellant in No. 13-1751
Mark E. Coyne, Esq.
*The
Honorable A. Wallace Tashima, Senior Circuit
Judge for the Ninth Circuit Court of Appeals, sitting by
designation.
2
David W. Feder, Esq. [ARGUED]
Office of United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102
Attorneys for Appellee
______
OPINION
______
FISHER, Circuit Judge.
Appellant Ronald Salahuddin (“Salahuddin”)
was the Deputy Mayor for Public Safety in Newark, New
Jersey. During his time in public office, he allegedly
conspired to use his official position to obtain charitable and
political contributions and to direct Newark demolition
contracts to Appellant Sonnie Cooper (“Cooper”), with whom
Salahuddin was allegedly in business. Salahuddin and
Cooper were convicted of conspiring to extort under color of
official right, in violation of the Hobbs Act, 18 U.S.C.
§ 1951(a).
Salahuddin and Cooper each raise an array of issues on
appeal, none of which overlap. Salahuddin raises issues with
the jury instructions and the proofs required for conviction
under the Hobbs Act. Cooper raises issues with the weight
and sufficiency of the evidence supporting the jury verdict
and the Government’s alleged selective prosecution and
3
outrageous conduct in its investigation and prosecution. We
will affirm both Salahuddin’s and Cooper’s convictions.
I.
A.
Salahuddin was the Deputy Mayor for Public Safety in
the City of Newark, New Jersey under the administration of
then-Mayor Cory Booker. Cooper owned and operated a
number of stores and businesses in Newark, including S.
Cooper Brothers Trucking (“Cooper Brothers”), a demolition
business. Cooper Brothers was qualified to receive
demolition work from Newark under the city’s minority set-
aside policy, but was ineligible for other demolition work.
Evidence introduced at trial suggests that Salahuddin
was a “silent partner” in Cooper’s demolition business. In
2004, Salahuddin gave Cooper money and mortgaged his
home and rental property so that Cooper Brothers could
pledge sufficient collateral to obtain a performance bond that
was a prerequisite for a garbage contract in Irvington, New
Jersey. Salahuddin also served as a general indemnitor for
the bond. These mortgages remained in effect through the
time frame relevant to the conspiracy. Salahuddin gave
money to Cooper for Cooper Brothers-related litigation and
expenses. Salahuddin helped Cooper generally in running the
business and facilitated obtaining an overdue payment from
the City of Newark soon after becoming Deputy Mayor. The
two occasionally referred to one another as business partners.
Salahuddin did not disclose his financial involvement with
Cooper Brothers. Nor did Cooper disclose Salahuddin’s
involvement on licensing forms filed with the state on behalf
of Cooper Brothers.
In July of 2006, Salahuddin met with Joseph
Parlavecchio (“Parlavecchio”), a Newark political operative.
4
Parlavecchio served as a consultant for several Newark
demolition companies. One of these companies belonged to
Nicholas Mazzocchi (“Mazzocchi”), a Newark businessman.
Mazzocchi’s company had retained Parlavecchio as a
consultant to help obtain demolition work from Newark,
because despite being the largest demolition contractor in
New Jersey, Mazzocchi’s company had not obtained
demolition work from Newark for five years. Unbeknownst
to Parlavecchio, Salahuddin, and Cooper, Mazzocchi was
cooperating with the F.B.I. as an informant. He had agreed to
work with the F.B.I. in April of 2006 – before this alleged
conspiracy began – in order to avoid prosecution for bribery
and tax-evasion. He recorded numerous meetings and
telephone conversations with Salahuddin and Cooper. These
recordings were introduced at trial and comprised the bulk of
the evidence against the two.1
Despite the fact that Salahuddin had no official power
over the awarding of demolition contracts, Salahuddin and
Parlavecchio discussed dividing the Newark demolition work
between Mazzocchi, Cooper Brothers, and another demolition
company for which Parlavecchio worked. Parlavecchio
recounted the agreement that he and Salahuddin had
discussed to Mazzocchi, stating that Mazzocchi could obtain
demolition work in Newark from Salahuddin if he promised
to give Cooper some work once in a while.
Mazzocchi met with Cooper individually and with
both Cooper and Salahuddin several times. They solidified
their understanding of the plan, whereby Salahuddin would
use his political influence to steer demolition work to
1 Parlavecchio was involved in discussions leading to
the alleged conspiracy in the beginning, but he was not
charged as a member of the conspiracy.
5
Mazzocchi, who would then give a piece of that work, or
subcontract it, to Cooper. Mazzocchi and Cooper
acknowledged the need for discretion, because Salahuddin
was a “political guy.” SA 172. Salahuddin confirmed that he
had the power to steer demolition work, stating: “I just tell
people this is what we want and that’s the way, you know, it
can happen.” SA 190. Salahuddin summarized the
arrangement to Mazzocchi, stating: “I’ll take care of, you
know, Newark. . . . You’ll be back in Newark. . . . And then,
you two, when something comes down the pike, you can
always call [Cooper] . . . .” SA 202.
To effectuate the conspiracy, Salahuddin urged
Newark’s Demolition Director Bob Minter – who had
responsibility for awarding demolition contracts – to give
work to Mazzocchi. Salahuddin told Minter that Mazzocchi
was a “friend of the administration,” and Minter understood
this to mean that he should give work to Mazzocchi. JA
1893-95.
Mazzocchi did offer some demolition work to Cooper.
He paid Cooper for some demolition work done at a small
carwash. After this work and payment, Salahuddin told
Mazzocchi that “we, I appreciate it tremendously.” SA 217.
A week after this carwash demolition work, Salahuddin
agreed to help Mazzocchi collect on a past-due bill with the
City of Newark, stating that his help was just part of their
“working relationship.” SA 224. Additionally, Minter
awarded two demolition jobs to Mazzocchi in 2007.
Mazzocchi subcontracted some of the work on both of these
jobs to Cooper. For one of them, Cooper was paid $5,029. A
day after depositing the check, Cooper wrote a check to
Salahuddin for $5,000 from the Cooper Brothers’ account.
The memo line stated: “Repay of Cash Loan.” SA 148.
6
In addition to work contracted from the City of
Newark, Salahuddin, Cooper, and Mazzocchi discussed
prospective demolition work on the new arena for the New
Jersey Devils hockey team. Salahuddin proposed that he
would suggest to the Devils that Mazzocchi receive the
demolition work. While Mazzocchi would get the majority of
it, Mazzocchi would subcontract a significant portion of that
work to Cooper. Salahuddin told Mazzocchi that Mazzocchi
was going to “be the pilot” but “we [he and Cooper] just
wanna be on the boat.” SA 240-41. Salahuddin tried to keep
the Devils arena work private, rather than having a public bid
process.
Salahuddin also sought and extracted political and
charitable contributions from Mazzocchi to help him
influence the demolition contracting process. He explained to
Mazzocchi that if Mazzocchi supported these entities,
Salahuddin could show other officials that Mazzocchi was
helping the city. Mazzocchi made several contributions
during the time frame of the conspiracy. He spent $5,000 on
a donation to Newark Now – a nonprofit associated with
Mayor Booker, $3,000 to purchase a table at a fundraiser for
Mayor Booker, $1,000 for a golf outing for Empower Newark
– a political action committee, and a total of $3,000 on
donations to Empower Newark. Salahuddin advised that
Mazzocchi should conceal the source of some of his
contributions by having the check come from a secretary or a
family member.
B.
On February 18, 2010, a grand jury in Trenton, New
Jersey returned a five-count indictment against Salahuddin
and Cooper. In Count 1, both were charged with conspiracy
to obstruct interstate commerce by extortion under color of
7
official right in violation of the Hobbs Act, 18 U.S.C.
§ 1951(a). In Count 2, both were charged with attempt to
obstruct interstate commerce by extortion under color of
official right in violation of the Hobbs Act, 18 U.S.C.
§ 1951(a), 18 U.S.C. § 2. In Counts 3, 4 and 5, they were
charged with violations of 18 U.S.C. § 666(a)(B) and 18
U.S.C. § 2 for knowingly and corruptly soliciting, demanding,
accepting and agreeing to accept as bribes things of value to
influence and reward Salahuddin’s effort to steer Newark
demolition contracts to Mazzocchi and Cooper. Count 3
related to contracts that Cooper received. Count 4 charged
only Salahuddin for contributions Mazzocchi made at
Salahuddin’s behest. Count 5 related to the $5,000 payment
that Cooper made to Salahuddin shortly after being paid by
Mazzocchi for subcontracted work.
Both Salahuddin and Cooper proceeded to trial, which
began on September 7, 2011. The Government introduced
recorded conversations involving Salahuddin and Cooper
made by Mazzocchi, documentary evidence of business
records and records of charitable donations, and witness
testimony from Mazzocchi and several Newark officials.
After the Government rested, Salahuddin called several
character witnesses and testified himself. Cooper called no
witnesses, but did examine Salahuddin. On October 14,
2011, the jury found Salahuddin and Cooper guilty on Count
1 – conspiracy to commit extortion under color of official
right in violation of the Hobbs Act – and not guilty on the
remaining counts.
Near the close of the Government’s case, Salahuddin
and Cooper moved for judgment of acquittal under Federal
Rule of Criminal Procedure 29. The District Court deferred
ruling on the motion until after trial. In post-trial briefing,
they reasserted their claims under Rule 29, requested a new
8
trial under Federal Rule of Criminal Procedure 33, and
challenged the verdict for insufficient jury instructions,
selective prosecution, and outrageous government conduct.
On July 19, 2012, the District Court denied the post-trial
motions.
On February 11, 2013, the District Court sentenced
Salahuddin to a term of imprisonment of one year and one
day and two years of supervised release, and imposed a
$5,000 fine. On March 4, 2013, the District Court sentenced
Cooper to a two-year term of supervised release, but no time
in prison, and imposed a fine of $3,000. Salahuddin and
Cooper filed separate and timely notices of appeal
II.
The District Court had jurisdiction under 18 U.S.C.
§ 3231. We have appellate jurisdiction pursuant to 28 U.S.C.
§ 1291.
III.
Because Salahuddin and Cooper briefed their appeals
separately and raise different issues, we will address them
separately. We will address the challenges that Salahuddin
raises to his conviction in Part III.A. We will address the
challenges Cooper makes to his conviction in Part III.B. We
note that Salahuddin joins all of Cooper’s arguments, but
Cooper has not done the same.
A. Salahuddin
Salahuddin raises seven issues on appeal. Three of
those issues implicate his theory that an overt act is required
for a Hobbs Act conspiracy conviction, and we address them
together in Part III.A.1. In Part III.A.2, we address
Salahuddin’s argument that the Hobbs Act conspiracy
9
conviction required proof that a member of the conspiracy
obtained benefits. We then address Salahuddin’s argument
that the conspiracy conviction cannot be sustained based upon
Mazzocchi’s charitable contributions in Part III.A.3. Finally,
we address two issues challenging the jury instructions in Part
III.A.4.
Salahuddin did not object to the jury instructions, and,
with the exception of the argument that we address in Part
III.A.2, he did not raise any of the arguments that he makes in
this appeal before the District Court. Therefore, we review
his arguments (except his argument that the Hobbs Act
conspiracy conviction required proof that a member of the
conspiracy obtained benefits) for plain error. In reviewing for
plain error, we inquire whether there is “(1) an error; (2) that
is plain; and (3) that affected substantial rights.” United
States v. Dobson, 419 F.3d 231, 236 (3d Cir. 2005). An error
is plain “if the error is ‘obvious’ or ‘clear under current law.’”
United States v. Vazquez, 271 F.3d 93, 100 (3d Cir. 2001) (en
banc) (quoting United States v. Olano, 507 U.S. 725, 734
(1993)). If all three of these conditions are met, “an appellate
court may in its discretion grant relief, but only if ‘the error
seriously affects the fairness, integrity, or public reputation of
[the] judicial proceedings.’” Dobson, 419 F.3d at 236
(alteration in original) (quoting United States v. Haywood,
363 F.3d 200, 206-07 (3d Cir. 2004)).
1.
Salahuddin raises three issues that can be grouped
together as a challenge to the Government’s failure to prove
that one of the alleged co-conspirators committed an overt act
in furtherance of the conspiracy. He argues that the District
Court erred in omitting an overt act requirement from its jury
instructions and that the rule of lenity requires that his
10
conviction be vacated. He also contends that because the
indictment alleged overt acts, the Government’s failure to
prove these acts constructively amended the indictment.
Because Salahuddin failed to object to the jury instructions or
raise the constructive amendment issue before the District
Court, we review these arguments for plain error. See United
States v. Duka, 671 F.3d 329, 352 (3d Cir. 2011) (applying
plain error review to an unpreserved constructive amendment
issue); United States v. Bansal, 663 F.3d 634, 643 (3d Cir.
2011) (applying plain error review to an unpreserved
statutory interpretation issue); United States v. W. Indies
Transport, Inc., 127 F.3d 299, 310 (3d Cir. 1997) (applying
plain error review to an unpreserved jury instruction issue).
To address Salahuddin’s specific arguments, we must
first determine whether an overt act is a required element of
Hobbs Act conspiracy. Our Court has not yet ruled on this
issue. We look to the Supreme Court’s opinions in United
States v. Shabani, 513 U.S. 10 (1994), and Whitfield v. United
States, 543 U.S. 209 (2005), as the appropriate framework to
use in making this determination. Both cases applied
principles of statutory construction to conclude that an overt
act was not required under the relevant conspiracy statutes, as
the statutory language was silent as to an overt act. In
Shabani, the Supreme Court considered the drug conspiracy
statute, 21 U.S.C. § 846. 513 U.S. at 11. In Whitfield, the
Court addressed conspiracy to commit money laundering in
violation of 18 U.S.C. § 1956(h). 543 U.S. at 211.
In prior cases involving conspiracy provisions, the
Whitfield Court observed, “where Congress had omitted from
the relevant conspiracy provision any language expressly
requiring an overt act, the Court would not read such a
requirement into the statute.” Whitfield, 543 U.S. at 213; see
also Singer v. United States, 323 U.S. 338, 340 (1945)
11
(concluding that the Selective Service Act does not require an
overt act for the conspiracy offense); Nash v. United States,
229 U.S. 373, 378 (1913) (concluding that the Sherman Act
does not require an overt act for antitrust conspiracy liability).
Absent an indication otherwise, we presume that “Congress
intends to adopt the common law definition of statutory
terms,” and the common law understanding of conspiracy
does not require an overt act for liability. Shabani, 513 U.S.
at 13. The general conspiracy statute, 18 U.S.C. § 371, which
“preceded and presumably provided the framework” for later
conspiracy statutes, expressly includes an overt-act
requirement. Id. at 14. With this in mind, the Whitfield Court
distilled the following rule: if a statutory text is modeled on
§ 371, the general conspiracy statute, “it gets an overt-act
requirement,” but if it is modeled on the Sherman Act, 15
U.S.C. § 1, which omits any express overt-act requirement,
“it dispenses with such a requirement.” Id. at 14 (internal
quotation marks omitted) (quoting United States v. Sassi, 966
F.2d 283, 284 (7th Cir. 1992)).
Salahuddin contends that Whitfield does not apply
because its principle can only be invoked when the statutory
text is plain and unambiguous, and the Hobbs Act, he
maintains, is not. But the Supreme Court did not establish
that a statute must be plain and unambiguous as a
precondition to the application of its test in Whitfield; instead,
it merely rejected petitioners’ invitation to look at the
statute’s legislative history because the statute was plain and
unambiguous. Id. at 215. More importantly, Whitfield is only
the last in a line of Supreme Court decisions applying the
principle that when a conspiracy statute is silent as to whether
an overt act is required, there is no such requirement.
Previous cases did not make a determination that a statute is
plain and unambiguous a prerequisite to the application of the
12
principles of these cases. Furthermore, the conspiracy
provision in § 1951 as it relates to an overt-act requirement is
plain and unambiguous. The portions of the Hobbs Act that
have been characterized as less than clear were distinct from
the conspiracy provision at issue here. See United States v.
Manzo, 636 F.3d 56, 62 (3d Cir. 2011) (“The scope of the
term ‘under color of official right’ is not readily apparent
from the face of the statute.”). And finally, we have
previously applied Whitfield to another conspiracy statute to
determine whether it required an overt act, without first
inquiring whether the statute was plain and unambiguous.
See United States v. Fullmer, 584 F.3d 132, 160 n.13 (3d Cir.
2009) (applying Whitfield to the Animal Enterprise Protection
Act to conclude that the language of the statute did not
require an overt act, even though the district court had
required it in its charge on conspiracy).
Applying Shabani and Whitfield here leads to the
conclusion that Hobbs Act conspiracy under § 1951 does not
require an overt act. Section 1951(a) provides:
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 under this title or
imprisoned not more than twenty years, or both.
18 U.S.C. § 1951(a). This language is similar to the statutory
language for conspiracy to commit money laundering – the
crime at issue in Whitfield – which provides that “[a]ny
13
person who conspires to commit any offense defined in
[§§ 1956 or 1957] shall be subject to the same penalties . . . .”
18 U.S.C. § 1956(h). Neither mentions anything about an
overt act, unlike § 371, which provides for conviction of
conspiracy “[i]f two or more persons conspire [] to commit
any offense against the United States . . . and one or more of
such persons do any act to effect the object of the conspiracy .
. . .” 18 U.S.C. § 371 (emphasis added). Conspiracy under
the Hobbs Act, like § 1956(h) but unlike § 371, makes no
mention of a required act. Therefore we decline to read in an
overt-act requirement.
Salahuddin urges that language in two decisions by
this Circuit supports the
conclusion that an overt act is required. In Manzo, 636 F.3d
at 68, and United States v. Jannotti, 673 F.2d 578 (3d Cir.
1982), both addressing Hobbs Act conspiracy, we mentioned
“the principle that ‘[a]ll that was necessary, in addition to an
overt act, was that the intended future conduct they had
agreed upon include[d] all the elements of the substantive
crime.’” Manzo, 636 F.3d at 68 (alterations in original)
(quoting Jannotti, 673 F.2d at 593). This language originates
from a case out of the Seventh Circuit, United States v. Rose,
590 F.2d 232, 235 (7th Cir. 1978), which dealt not with
Hobbs Act conspiracy, but with burglary conspiracy. We,
perhaps carelessly, allowed this language to creep in through
a citation to Rose in the context of considering issues wholly
unrelated to whether an overt act is required for Hobbs Act
conspiracy. The statements in these cases regarding an overt
act were dicta, as they did not consider the issue of whether
an overt act is required for Hobbs Act conspiracy, discuss it at
14
any length, or hold that it was required.2 Therefore, Manzo
and Jannotti did not hold and do not establish that an overt
act is required for Hobbs Act conspiracy in this Circuit.
Several of our sister Circuits have already weighed in
on whether an overt act is required for Hobbs Act conspiracy.
Today, we join the First, Second, and Eleventh Circuits,
which have held that an overt act is not a required element of
Hobbs Act conspiracy.3 See United States v. Monserrate-
Valentin, 729 F.3d 31, 62 (1st Cir. 2013) (“[A] Hobbs Act
conspiracy does not require proof of an overt act. Therefore,
the district court did not err in declining to include the overt
acts listed in the indictment as part of its instructions.”);
United States v. Pistone, 177 F.3d 957, 960 (11th Cir. 1999)
(relying upon Shabani to conclude that “the government is
not required to allege and prove an overt act in a prosecution
for conspiracy to obstruct commerce in violation of 18 U.S.C.
2 This Court has defined dictum as “a statement in a
judicial opinion that could have been deleted without
seriously impairing the analytical foundations of the holding
– that, being peripheral, may not have received the full and
careful consideration of the court that uttered it.” In re
McDonald, 205 F.3d 606, 612 (3d Cir. 2000) (internal
quotation marks omitted) (quoting Sarnoff v. Am. Home
Prods. Corp., 798 F.2d 1075, 1084 (7th Cir. 1986)). Whether
an overt act was required for Hobbs Act conspiracy was not at
issue in either case, so the statements could easily have been
deleted from both without impairing their holdings.
3
We note that the Fourth Circuit has recently indicated
that proof of an overt act is not required for a Hobbs Act
conspiracy. See United States v. Ocasio, 750 F.3d 399, 409
n.12 (4th Cir. 2014).
15
§ 1951”); United States v. Clemente, 22 F.3d 477, 480 (2d
Cir. 1994) (“In order to establish a Hobbs Act conspiracy, the
government does not have to prove any overt act.”). The
Fifth Circuit requires an overt act for Hobbs Act conspiracy. 4
See United States v. Box, 50 F.3d 345, 349 (5th Cir. 1995).
However, the Fifth Circuit has not examined the overt-act
requirement under the principles set forth in Shabani and
Whitfield.
We conclude that proof of an overt act is not required
for conviction of Hobbs Act conspiracy under 18 U.S.C.
§ 1951(a). Therefore, the District Court did not err, let alone
plainly err, in leaving such a requirement out of the jury
instructions. We also decline Salahuddin’s request to apply
the rule of lenity. The rule of lenity applies when “there is a
‘grievous ambiguity or uncertainty in the statute.’”
Muscarello v. United States, 524 U.S. 125, 139 (1998)
4 Salahuddin maintains that the Sixth, Seventh, and
Ninth Circuits also require an overt act for Hobbs Act
conspiracy. However, the cases upon which he relies do not
actually decide the issue. See United States v. Corson, 579
F.3d 804, 810 n. † (7th Cir. 2009) (observing the circuit split
on the overt act requirement but declining to consider
“whether proof of an overt act was required in this case”
because the defendants did not appeal on that ground); United
States v. Nelson, 66 F.3d 1036, 1044 (9th Cir. 1995)
(observing that an overt act is required, but in a case dealing
with money laundering conspiracy, not Hobbs Act
conspiracy); United States v. Uselton, 974 F.2d 1339 (6th Cir.
1992) (per curiam) (unpublished table decision) (observing,
in a case raising a double jeopardy challenge only, that the
indictment count for Hobbs Act conspiracy included overt
acts).
16
(quoting Staples v. United States, 511 U.S. 600, 619, n.17
(1994)). It “applies only if, after seizing everything from
which aid can be derived, we can make no more than a guess
as to what Congress intended.” Id. (internal quotation marks
and alterations omitted). Applying the principles set forth in
Shabani and Whitfield, the language of the statute plainly
indicates that an overt act is not required for Hobbs Act
conspiracy. Therefore, this is not an occasion to apply the
rule of lenity.
Finally, we address Salahuddin’s contention that the
failure to require proof of an overt act in the jury instructions
constructively amended the indictment. He maintains that
Count 1 of the indictment listed several “objects” of the
conspiracy, and by dispensing with the Government’s need to
prove the overt acts allegedly charged as “objects,” he was
convicted on an alternate or expanded basis from that charged
in the indictment. “An indictment is constructively amended
when evidence, arguments, or the district court’s jury
instructions effectively ‘amend[s] the indictment by
broadening the possible bases for conviction from that which
appeared in the indictment.’” United States v. McKee, 506
F.3d 225, 229 (3d Cir. 2007) (alterations in original) (quoting
United States v. Lee, 359 F.3d 194, 208 (3d Cir. 2004)). Even
assuming that these “objects” listed in the indictment were
alleged overt acts – which the Government disputes – because
we hold that proof of an overt act is not required for a Hobbs
Act conspiracy conviction, the indictment was not
constructively amended. The Government was not required
to prove and the jury was not required to find that any overt
acts occurred, so the failure to prove the alleged acts in the
indictment did not “broaden[] the possible bases for
conviction from that which appeared in the indictment.”
McKee, 506 F.3d at 229 (internal quotation marks omitted).
17
Because we hold that the statute imposes no overt act
requirement for a Hobbs Act conspiracy conviction, we reject
Salahuddin’s arguments resting upon the theory that proof of
an overt act was required for his conviction.
2.
Salahuddin contends that for a valid Hobbs Act
conspiracy conviction, the jury must find that the defendant
obtained something of value from the victim, which is a
requirement of extortion. Because he was acquitted of the
substantive bribery charges, which alleged several things of
value that he extorted under color of official right, he argues
that the jury necessarily found that he did not obtain anything
of value and his conviction for conspiracy cannot stand. We
exercise plenary review. United States v. Introcaso, 506 F.3d
260, 264 n.3 (3d Cir. 2007).
Salahuddin’s argument misunderstands the
requirements for inchoate offenses. He claims that because
elements of the substantive offense were lacking, the inchoate
offense of conspiracy must necessarily be lacking also. But
the substantive and inchoate offenses are separate crimes
requiring different proof. “Traditionally the law has
considered conspiracy and the completed substantive offense
to be separate crimes.” Iannelli v. United States, 420 U.S.
770, 777 (1975). “Conspiracy is an inchoate offense, the
essence of which is an agreement to commit an unlawful act.”
Id. “Because an agreement between two or more persons to
commit criminal acts poses, in and of itself, a serious danger
to social order, it is proscribed by the law of conspiracy.”
Jannotti¸ 673 F.2d at 591. The goal of the conspiracy – here,
obtaining something of value under color of official right –
need not be achieved for a conspiracy conviction. “The
ultimate failure of the conspiracy may diminish, but does not
18
eliminate, the threat it poses to social order; therefore, the
illegality of the agreement does not depend on the
achievement of its ends.” Id.
Salahuddin relies upon our opinion in Manzo in
support of his argument,5 but that case cannot be read to
support the contention that proof that the defendant
successfully obtained benefits is required for a Hobbs Act
conspiracy conviction. In Manzo, we considered whether
5 Salahuddin also relies upon the Supreme Court’s
decision in Scheidler v. National Organization for Women,
Inc., 537 U.S. 393 (2003). In Scheidler, the Supreme Court
held that “[b]ecause petitioners did not obtain or attempt to
obtain respondents’ property,” there could be no basis for
Hobbs Act extortion claims, state extortion claims, or claims
of conspiring or attempting to extort. Id. at 410. Scheidler
focused on the nature of the claimed property rights in finding
no extortion. The respondents maintained that the petitioners
sought to obtain “a woman’s right to seek medical services
from a clinic, the right of the doctors, nurses or other clinic
staff to perform their jobs, and the right of the clinics to
provide medical services free from wrongful threats, violence,
coercion and fear.” Id. at 400-01. The Court concluded that
although the petitioners may have deprived the respondents of
these property rights, they did not acquire the property,
because the nature of the property rights rendered them
incapable of being “obtained,” which was necessary to
commit extortion under the Hobbs Act. Id. at 405. The
claimed property rights here –business, charitable
contributions, and money – are of a very different nature than
those claimed in Scheidler. They are capable of being
acquired and therefore do not present the same problems as
the property rights at issue in Scheidler.
19
acting “under color of official right” was a required element
of the inchoate Hobbs Act extortion offenses. 636 F.3d at 59.
We concluded that acting “under color of official right” was
required even for the inchoate offenses because it is a
necessary status element of any Hobbs Act violation that does
not involve threatened force, violence or fear. Id. at 66-67.
We acknowledged that “the government need not prove every
substantive element of an offense to establish an inchoate
offense,” id. at 66, but “[a] Hobbs Act inchoate offense
prohibits a person acting ‘under color of official right’ from
attempting or conspiring to use his or her public office in
exchange for payments,” id. at 68-69. “To sustain an ‘under
color of official right’ Hobbs Act charge [where defendants
were not public officials or holding themselves out as such]
would create a legal alchemy with the power to transform any
gap in the facts into a cohesive extortion charge . . . .” Id. at
69 (internal quotation marks omitted).
Key to the determination that the government was
required to prove “under color of official right” for inchoate
Hobbs Act offenses was the conclusion that it was a “status
element.” Proving that a defendant successfully obtained
benefits is not a status element. Obtaining benefits is the
desired outcome, object, or goal of the extortion. Indeed,
successfully obtaining benefits in many instances completes
the extortion. We observed in Manzo that “a Hobbs Act
conspiracy charge does not even require that ‘the ends of the
conspiracy were from the very inception of the agreement
objectively [] attainable.’” Id. at 66 (alteration in original)
(quoting United States v. Hsu, 155 F.3d 189, 203 (3d Cir.
1998)). If it is not even required that the ends of the
conspiracy be attainable, it is surely not required that they
actually be achieved.
20
Requiring the government to prove that Salahuddin
successfully obtained benefits would go much further than
what is required under conspiracy law. It is the illegal
agreement that is criminalized in Hobbs Act conspiracy; the
actual completion of the agreed-upon venture is immaterial.
We therefore reject Salahuddin’s contention that the jury was
required to find that he obtained benefits and that the acquittal
on the substantive extortion counts undermines his conspiracy
conviction.6
3.
Salahuddin raises two issues with his conviction’s
foundation upon Mazzocchi’s charitable and political
contributions to Newark Now, Empower Newark, and then-
Mayor Booker. He argues first that the Government was
required to allege in the indictment that these entities were
“acting in concert” with Salahuddin. Second, he argues that
the District Court erred in failing to instruct the jury that for
the conviction to be based upon charitable contributions – to
6 Salahuddin argues that the acquittals on the
substantive extortion counts result in a “legal insufficiency”
or lack of requisite “crystallization” of criminal intent for
Hobbs Act conspiracy. Salahuddin Br., at 36 & n.10. But
bribery – of which he was acquitted – and Hobbs Act
conspiracy have different elements and are charged under
different statutes. Even if the verdicts were inconsistent, we
could not review them, as the Supreme Court made
inconsistent verdicts “unreviewable.” United States v.
Powell, 469 U.S. 57, 63 (1984). A defendant cannot
“challenge an inconsistent verdict involving a conviction of a
conspiracy and an acquittal on a predicate act.” United States
v. Maury, 695 F.3d 227, 264 (3d Cir. 2012).
21
Newark Now and Empower Newark – it must find that there
was an explicit quid pro quo agreement.
Salahuddin failed to preserve these issues below.
“[I]ndictments which are tardily challenged are liberally
constructed in favor of validity.” United States v. Vitillo, 490
F.3d 314, 324 (3d Cir. 2007) (internal quotation marks
omitted) (quoting United States v. Wander, 601 F.2d 1251,
1259 (3d Cir. 1979)). We will uphold the indictment “unless
it is so defective that it does not, by any reasonable
construction, charge an offense” under the relevant criminal
statute. Id. (internal quotation marks omitted) (quoting
United States v. Childress, 58 F.3d 693, 720 (D.C. Cir.
1995)). We review Salahuddin’s objections to the jury
instructions issued by the District Court for plain error.
Dobson, 419 F.3d at 236.
With respect to his first argument, Salahuddin relies
primarily upon the Third Circuit’s Model Criminal Jury
Instructions. They provide: “The government may show that
the benefit was meant to be given to the public official
directly, or to a third party who is not a public official but
who was acting in concert with the public official.” 3d Cir.
Model Crim. Jury Instr. § 6.18.1951-6 (emphasis added). The
District Court charged the jury using this exact language,
including the “acting in concert” requirement. See JA 2985.
While it is far from clear that our case law imposes an “acting
22
in concert” requirement, to the extent that there is, the jury
instructions complied.7
While the indictment does not use the specific “acting
in concert” language, it can be fairly read to imply that
Salahuddin acted in concert with the Newark officials raising
funds for these charities. The indictment stated that as a part
of the conspiracy, “Salahuddin solicited and accepted
contributions to organizations supported by City of Newark
officials from [Mazzocchi], which defendant Salahuddin
claimed would further enable him to secure demolition work
and other valuable benefits for [Mazzocchi] and [his]
company.” JA 6-7. Challenged at this tardy stage and on
review for plain error, we cannot say that the indictment’s
language is “so defective that it does not, by any reasonable
construction, charge” that Salahuddin was “acting in concert”
with the charitable organizations receiving Mazzocchi’s
donations.
7 Although the model jury instruction includes this
language, the Third Circuit cases cited in the comment do not
address an “acting in concert” situation, as they involved
direct payments. See United States v. Antico, 275 F.3d 245
(3d Cir. 2001) (declining to apply an explicit quid pro quo
requirement in a case that involved direct payments to the
official); United States v. Bradley, 173 F.3d 225 (3d Cir.
1999) (declining to apply an explicit quid pro quo
requirement in a case involving direct payments to the public
official and his defendant-girlfriend, without discussion of
“acting in concert”). Insofar as we need not – and do not –
decide this issue of an “acting in concert” requirement to
dispose of Salahuddin’s appeal, our opinion here should not
be read as holding that there is an “acting in concert”
requirement when the benefit is given to a third party.
23
Salahuddin argues second that the jury was required to
find an explicit quid pro quo arrangement for the charitable
contributions sought from Mazzocchi, and the District Court
erred in failing to instruct the jury as such.8 We have
previously rejected attempts to require an explicit quid pro
quo arrangement outside of the campaign contribution
context. See Bradley, 173 F.3d at 232 (approving an
instruction without an explicit quid pro quo requirement
because “a conclusion that in a Hobbs Act case the
government has to demonstrate that the public official made
an express promise to perform a particular act and that
‘knowing winks and nods’ are not sufficient would frustrate
the act’s effect” (quoting United States v. Evans, 504 U.S.
255, 274 (1992))). As neither the Supreme Court nor this
Court requires an explicit quid pro quo for non-campaign
charitable contributions – such as those to Empower Newark
and Newark NOW – the District Court cannot have plainly
erred in failing to instruct the jury as such.9
8
He also argues that his conviction cannot stand
because he did not receive any benefits from the charitable
contributions. But as discussed in Part III.A.2 above,
successfully obtaining benefits is not required for a Hobbs
Act conspiracy conviction.
9
An explicit quid pro quo is required for extortion
based upon campaign contributions. McCormick v. United
States, 500 U.S. 257, 273 (1991). The District Court did
instruct the jury that in the context of political contributions:
[I]f a particular defendant as a public official
solicits, receives, obtains, or accepts a political
contribution knowing that it is given in
24
The District Court instructed the jury as follows:
“[T]he government must prove beyond a reasonable doubt
that the public official knowingly and willfully, as those
terms are defined later in these instructions, used his official
position in order to obtain something of value to which he had
no right.” JA 2985. Under the Supreme Court’s precedent in
Evans, “the Government need only show that a public official
has obtained a payment to which he was not entitled, knowing
that the payment was made in return for official acts.” 504
U.S. at 268. As the jury instructions followed this precedent,
the District Court did not plainly err.
4.
Salahuddin raises issues with two other aspects of the
jury instructions. He argues that the District Court erred in
failing to instruct the jury that it must unanimously decide
which one of the “objects” of the conspiracy the defendants
agreed to pursue. He also argues that the District Court erred
in failing adequately to define “extortion under color of
official right” in the jury instructions on Hobbs Act
conspiracy. As Salahuddin failed to object to the jury
instructions before the District Court or submit an instruction
exchange for an explicit promise or
understanding by the official to perform or not
to perform a specific official act or course of
official action, then that defendant has
committed extortion under color of official right
and bribery.
JA 2987-88. This instruction complies with the applicable
precedent with respect to Mazzocchi’s contribution to a
fundraiser for then-Mayor Booker.
25
of his own, we review these claims for plain error. Dobson,
419 F.3d at 236.
With respect to the unanimity instruction, Salahuddin
maintains that the District Court ought to have augmented –
sua sponte – the general unanimity instruction to ensure that
the jury understood that it must unanimously agree to facts
supporting at least one object of the conspiracy. The
“objects” of the conspiracy, according to the indictment, were
to obtain money and benefits, including demolition business
and contributions, through Salahuddin’s position. These
“objects” are simply the benefits that the conspirators sought
to obtain through their agreement.
Salahuddin looks to our decision in United States v.
Beros, 833 F.2d 455 (3d Cir. 1987), in support of his
contention. In Beros, we determined that the general
unanimity instruction did not suffice where the defendant had
been charged in the indictment with numerous acts, each of
which could constitute a violation of the relevant statute. Id.
at 461. Because in theory, twelve jurors could have agreed
that the defendant violated the statute but with each juror
predicating his or her conclusion upon different acts, the
jurors ought to have been instructed that they must
unanimously agree as to which specific act or acts supported
his guilt. Id. at 461-62.
Beros is distinguishable from Salahuddin’s case for
several reasons. First of all, there is a difference between the
multiple alleged acts which could each constitute an offense
in Beros, and the multiple alleged benefits which the
defendants allegedly sought to obtain through the conspiracy
here. Because the specific benefits that the members of the
conspiracy sought to obtain is not a required element of
Hobbs Act conspiracy, the jury need not have been
26
specifically instructed as to unanimity in this regard. See,
e.g., United States v. Wise, 515 F.3d 207, 214 (3d Cir. 2008)
(“[T]he jury was not required to unanimously agree on the
type of weapon that [the defendant] possessed, because a
specific type of firearm is not an element of a violation under
18 U.S.C. § 924(c)(1)(A).”). Conspiracy seeks to punish only
the act of agreeing to commit an offense, so the jury verdict
only needs to be unanimous as to that act, not as to the
multiple benefits that the defendants allegedly sought to
obtain by entering into the agreement. See Shabani, 513 U.S.
at 16 (“[T]he criminal agreement itself is the actus reus . . .
.”). Beros is further distinguishable because the defendant in
Beros had preserved the issue of the unanimity instruction in
the district court below, whereas here, we are conducting
plain error review. Beros, 833 F.2d at 463. We conclude that
the District Court did not err, let alone plainly err, in failing to
issue a specific unanimity instruction sua sponte.
Turning to the District Court’s jury instructions on the
meaning of the substantive Hobbs Act offense, Salahuddin
asserts that the District Court erred by failing to define
“extortion under color of official right” in the instructions as
to the Hobbs Act conspiracy offense. The District Court
instructed the jury that for the Hobbs Act conspiracy count:
The government must prove beyond a
reasonable doubt that two or more persons
knowingly and intentionally arrived at a mutual
understanding or agreement, either spoken or
unspoken, to work together to achieve the
overall objective of the conspiracy, in sum, to
obtain payments and other valuable benefits by
extortion under color of official right, as I will
describe for you later in these instructions.
27
JA 2976-77 (emphasis added). Moments later, in recounting
the instructions on the Hobbs Act attempt charge, the District
Court further instructed:
Extortion under color of official right means
that a public official induced, obtained,
accepted, or agreed to accept a payment or
valuable benefit to which he was not entitled
knowing that the payment or valuable payment
accepted or to be accepted was made in return
for taking, withholding, or influencing official
acts.
JA 2984-85. This instruction tracks the Third Circuit’s
Model Criminal Jury instructions and adequately defines the
relevant terms under the governing case law. See United
States v. Urban, 404 F.3d 754, 768 (3d Cir. 2005) (“In order
to prove Hobbs Act extortion ‘under color of official right,’
‘the Government need only show that a public official has
obtained a payment to which he was not entitled, knowing
that the payment was made in return for official acts.’”
(quoting Evans, 504 U.S. at 268)). The few moments of
delay before the jury was fully and properly instructed on the
meaning of “extortion under color of official right” do not
constitute plain error.
B. Cooper
Cooper raises four issues on appeal. We address in
Part III.B.1 Cooper’s argument that the jury’s guilty verdict
was against the weight of the evidence. In Part III.B.2, we
address his challenge to the sufficiency of the evidence.
Finally, we address his contention that the District Court
28
erred in denying his motion to vacate his conviction and
dismiss the indictment on account of the Government’s
alleged selective prosecution and outrageous conduct in Part
III.B.3.
1.
Cooper contends that the jury’s guilty verdict as to the
Hobbs Act conspiracy charge is against the weight of the
evidence. He first made the arguments supporting this
contention before the District Court in a motion for a new
trial under Federal Rule of Criminal Procedure 33. Under this
rule, the district court “may vacate any judgment and grant a
new trial if the interest of justice so requires.” Fed. R. Crim.
P. 33(a). “A district court can order a new trial on the ground
that the jury’s verdict is contrary to the weight of evidence
only if it ‘believes that there is a serious danger that a
miscarriage of justice has occurred – that is, that an innocent
person has been convicted.’” United States v. Johnson, 302
F.3d 139, 150 (3d Cir. 2002) (quoting United States v. Santos,
20 F.3d 280, 285 (7th Cir. 1994)). “Thus, ‘[m]otions for a
new trial based on the weight of the evidence are not favored.
Such motions are to be granted sparingly and only in
exceptional cases.’” United States v. Brennan, 326 F.3d 176,
189 (3d Cir. 2003) (alteration in original) (quoting Gov’t of V.
I. v. Derricks, 819 F.2d 50, 55 (3d Cir. 1987)). When
evaluating a Rule 33 motion, the district court “does not view
the evidence favorably to the Government, but instead
exercises its own judgment in assessing the Government’s
case.” Johnson, 302 F.3d at 150.
The District Court denied Cooper’s Rule 33 motion
after thoroughly examining his arguments and the evidence
supporting the conspiracy conviction. The District Court
concluded that the evidence supported the jury’s finding and
29
many of Cooper’s arguments were more properly made to a
jury. We review a district court’s denial of a Rule 33 motion
for abuse of discretion. Brennan, 326 F.3d at 189.
Cooper’s arguments that the jury’s verdict was against
the weight of the evidence can be categorized into two
groups: (1) challenges to Mazzocchi’s trial testimony as
biased, false, and contradictory; (2) alleged failures in the
Government’s evidence presented at trial that undermine the
jury’s verdict. The District Court carefully evaluated all of
Cooper’s contentions, which he repeats on appeal. We have
reviewed the evidence presented at trial alongside Cooper’s
arguments, and conclude that the District Court did not abuse
its discretion in denying Cooper’s motion.
The majority of Cooper’s arguments amount to
challenges to Mazzocchi’s credibility and motives. He argues
that Mazzocchi gave false and inconsistent testimony and
manufactured the conspiracy as reflected in the recordings.
We can entirely reject these arguments, as the jury was made
aware – through cross-examination, closing arguments, and
the jury instructions10 – of Mazzocchi’s motivations, potential
10
The District Court instructed the jury:
30
bias, and inconsistent testimony. Equipped with this
knowledge, it was the jury’s responsibility to decide whether
or not to believe Mazzocchi’s testimony.
In suggesting that Mazzocchi’s testimony could not be
believed, and therefore the verdict was against the weight of
the evidence, Cooper points to numerous alleged
Cooperating witness testimony was received in
evidence and may be considered by you. The
government is permitted to present the
testimony of someone who has received a
promise from the government that he will not be
prosecuted and who has received a promise
from the government that his testimony will not
be used against him in a criminal case, but you
should consider that witness’ testimony with
great care and caution. In evaluating his
testimony, you should consider this factor along
with the others I have called to your attention.
Whether or not Mr. Mazzocchi’s testimony may
have been influenced by the government’s
promises is for you to determine. You may
give his testimony such weight as you think it
deserves.
JA 3014-15.
31
inconsistencies in Mazzocchi’s testimony. 11 But many of
these claimed inconsistencies are minor or more ambiguous
than Cooper makes them out to be. Mazzocchi’s testimony
described numerous meetings, conversations, and transactions
between himself and the defendants, it was lengthy, and it
was subject to cross-examination by counsel for both
Salahuddin and Cooper. Some minor contradiction or
confusion is understandable. Even if the inconsistencies were
more glaring than they appear to be, “[a] jury is free to
believe part of a witness’ testimony and disbelieve another
part of it.” United States v. Boone, 279 F.3d 163, 189 (3d Cir.
2002). It was the jury’s responsibility to weigh Mazzocchi’s
credibility considering his entire testimony, including the
alleged inconsistencies.
Contrary to Cooper’s arguments, Mazzocchi’s
testimony was not the Government’s only evidence of the
conspiracy. Much of the evidence against Cooper and
Salahuddin came from their own mouths, through recorded
conversations. Therefore, any inconsistencies and credibility
issues with Mazzocchi’s testimony do not render the jury
verdict against the weight of the evidence.
The remainder of Cooper’s arguments implicate
isolated pieces of evidence presented at trial, which he
11
For example, Cooper observes that Mazzocchi first
testified that Salahuddin introduced him to Cooper. He then
admitted that was not the case, he had been introduced to
Cooper by Parlavecchio. Cooper also contends that
Mazzocchi contradicted himself by first acknowledging that
he wished to gain access to business Cooper obtained through
minority set-aside contracts but then stating that the plan the
whole time was to use Salahuddin’s influence to obtain
business.
32
believes undermine the Government’s proof of the elements
of the conspiracy. Through these arguments, Cooper asks us
to look one-sidedly at small, isolated portions of the record to
conclude that the verdict was against the weight of the
evidence. But when each instance he raises is placed in the
proper context, it becomes clear that ample evidence – albeit
sometimes circumstantial – supported the conspiracy.
To the extent that Cooper challenges the lack of direct
evidence against him, that argument fails. While there may
not have been direct evidence of a quid pro quo, the evidence
of bribery and the unlawful nature of their agreement could
be proven circumstantially. McKee, 506 F.3d at 238 (“[A]
conspiratorial agreement can be proven circumstantially
based upon reasonable inferences drawn from actions and
statements of the conspirators or from the circumstances
surrounding the scheme.”).
Cooper suggests that Mazzocchi’s admission that he
paid Cooper a fair price for legitimate work that was
completed undermines the jury’s finding of a conspiracy. But
as the District Court observed, “[t]he issue is not how much
Cooper was paid for his work, but how he received the work
in the first place.” United States v. Salahuddin, No. 10-104,
2012 WL 2952436, at *14 (D.N.J. July 19, 2012). Similarly,
Cooper suggests that his ambivalence about whether
Mazzocchi paid him with cash or a check and his lack of
effort to conceal the $5,000 payment he made to Salahuddin
show that he did not have the intent to commit extortion. The
jury was free to make this inference; however, there was
ample evidence indicating that Cooper wished to join the
conspiracy and conceal other aspects of his relationship with
Salahuddin. For instance, Cooper stated of Salahuddin, “he’s
a political guy so he can’t get involved” in Mazzocchi’s
subcontracting work to Cooper. SA 172. And while Cooper
33
argues that their relationship merely indicated that they were
close friends, the jury was free to credit circumstantial
evidence indicating a concealed business relationship instead.
Cooper contends that Salahuddin’s openness in his
attempts to push Mazzocchi for city demolition contracts
demonstrates a lack of illicit purpose. But the jury could
infer that because Salahuddin did not have any actual
authority over demolition contracts, he had to use
Mazzocchi’s name in urging those who controlled the process
to award them to Mazzocchi. The illicit purpose is supported
by Salahuddin’s failure to reveal Mazzocchi’s arrangement to
subcontract work to Cooper and his own connection to
Cooper.
Cooper argues that the conspiracy conviction is
undermined because Salahuddin told Mazzocchi that he did
not need to subcontract work on one particular job to Cooper,
stating that Mazzocchi could “do something for him” if he
could, but if he could not “on this one, don’t worry about it.”
SA 303. But the jury could also construe this conversation,
along with the discussions of the other work the defendants
and Mazzocchi hoped to obtain, as showing that their
relationship was an ongoing one. It could conclude that
Mazzocchi did not need to subcontract to Cooper on this
smaller job because there were bigger ones coming down the
pipeline.
Ultimately, the arguments that Cooper makes do not
come close to suggesting “that there is a serious danger that a
miscarriage of justice has occurred.” Johnson, 302 F.3d at
150 (internal quotation marks omitted). His arguments about
credibility and challenges to portions of the Government’s
evidence were made to the jury, who were free to reject them.
We conclude that the District Court did not abuse its
34
discretion in rejecting Cooper’s arguments that the jury’s
verdict was against the weight of the evidence and denying
his motion for a new trial.
2.
Cooper argues next that the District Court erred in
denying his motion for judgment of acquittal under Federal
Rule of Criminal Procedure 29. He maintains that there was
insufficient evidence presented to the jury to allow them to
find that the Government had sustained its burden of proving
each element of the alleged conspiracy. The District Court
denied Cooper’s motion.
“We exercise plenary review over a district court's
grant or denial of a motion for judgment of acquittal based on
the sufficiency of the evidence, applying the same standard as
the district court.” United States v. Starnes, 583 F.3d 196,
206 (3d Cir. 2009). We “review the record in the light most
favorable to the prosecution to determine whether any
rational trier of fact could have found proof of guilt[] beyond
a reasonable doubt based on the available evidence.” United
States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005) (internal
quotation marks omitted) (quoting United States v. Smith, 294
F.3d 473, 476 (3d Cir. 2002)). “The burden on a defendant
who raises a challenge to the sufficiency of the evidence is
extremely high.” Starnes, 583 F.3d at 206 (internal quotation
marks omitted ) (quoting United States v. Iglesias, 535 F.3d
150, 155 (3d Cir. 2008)).
In support of his sufficiency-of-the-evidence claim,
Cooper incorporates all of the arguments and contentions
made in his challenge to the weight of the evidence, discussed
above. We need not revisit these arguments at length. To the
extent that they challenge Mazzocchi’s credibility, the jury
knew of his potential bias and the inconsistencies in his
35
testimony, yet still a rational trier of fact could have credited
his testimony. And while isolated pieces of evidence could
support a not guilty verdict, copious recorded testimony
supports the jury’s verdict. For the same reasons discussed
above, these arguments cannot lead us to conclude that no
rational trier of fact could have found Cooper guilty of
conspiracy to extort under color of official right.
Cooper also argues that the inconsistency of the jury’s
not guilty verdict on the Hobbs Act attempt charge with the
guilty verdict on the Hobbs Act conspiracy charge should be
considered in evaluating the sufficiency-of-the-evidence
claim. He maintains that it was impossible for a rational jury
to determine that Cooper conspired to commit extortion under
color of official right, but did not attempt to do so. The
acquittal, he argues, shows that the jury determined that he
either lacked the intent to commit extortion or that he did not
take a substantial step in furtherance of the conspiracy, either
of which would undermine the conspiracy conviction.
This argument misunderstands the requirements of
attempt as compared to conspiracy. An attempt conviction
requires that the defendants acted with the requisite intent to
violate the Hobbs Act and performed an act that constituted a
substantial step towards the commission of the crime. Manzo,
636 F.3d at 66. The jury did not inquire whether Cooper
performed a substantial step in furtherance of the conspiracy,
because conspiracy and attempt are different crimes. The two
inchoate offenses address different conduct, and “along the
continuum of different criminal activity, attempt crimes are
closer to completed crimes than are conspiracy crimes.”
United States v. O’Brien, 972 F.2d 47, 52 (3d Cir. 1992). As
discussed above, Hobbs Act conspiracy does not even require
an overt act. A rational jury could have reasonably concluded
that Cooper entered an agreement intending to commit
36
extortion under color of official right, but took no substantial
step in furtherance of committing that crime.
Furthermore, the jury’s acquittal on the attempt count
is irrelevant to our review of the sufficiency of the evidence
on the conspiracy count. Review to determine whether there
was sufficient evidence to convict on a particular count
“should be independent of the jury’s determination that
evidence on another count was insufficient.” Powell, 469
U.S. at 67. We conclude that the evidence was sufficient to
support the jury’s verdict for the reasons discussed above and
in the District Court’s lengthy opinion. The District Court did
not err in denying Cooper’s motion for judgment of acquittal.
3.
Cooper argues that the District Court erred in denying
his motion to vacate his conviction and dismiss the indictment
on account of selective prosecution and outrageous
government conduct. We conclude – as the Government
urges – that these claims are waived due to Cooper’s failure
to raise them before trial.
Under the Federal Rules of Criminal Procedure, “a
motion alleging a defect in instituting the prosecution” must
be raised before trial. Fed. R. Crim. P. 12(b)(3)(A). Claims
of selective prosecution and outrageous government conduct
allege defects in the institution of the prosecution. See United
States v. Pitt, 193 F.3d 751, 760 (3d Cir. 1999) (“[T]he
defense of outrageous government conduct is based on an
alleged defect in the institution of the prosecution itself.”);
United States v. Berrigan, 482 F.2d 171, 175 (3d Cir. 1973)
(“The question of discriminatory prosecution relates not to
the guilt or innocence of the appellants, but rather addresses
itself to a constitutional defect in the institution of the
prosecution.”). We have observed that a pretrial motion is
37
necessary to a claim of outrageous government prosecution
“unless the evidence supporting the claim of outrageous
government conduct is not known to the defendant prior to
trial.” Pitt, 193 F.3d at 760. The same logic applies to a
claim for selective prosecution. Therefore, we hold that
claims of outrageous government conduct and selective
prosecution must be made in a pretrial motion, unless the
evidence supporting these claims were not known to the
defendant prior to trial.
Cooper raised neither the selective prosecution claim
nor the outrageous government conduct claim before trial.
Instead, he raised them in a post-trial motion. Cooper has
presented no explanation or excuse for his failure to present
these arguments prior to trial. He had sufficient opportunity
to do so, as the evidence upon which he now relies in support
of these claims was available to him well before trial. 12 We
conclude that Cooper waived these defenses by failing to
raise them in a pretrial motion as required under Rule
12
Cooper bases his selective prosecution and
outrageous government conduct claims on the Government’s
alleged relinquishment of prosecutorial authority and agency
to Mazzocchi. Cooper contends that Mazzocchi is racist, and
chose to focus the investigation upon Cooper and Salahuddin
due to his racial animus. But Cooper was aware that the
Government chose to prosecute only Salahuddin and himself
– both African-American – and not Mazzocchi and
Parlavecchio – both Caucasian – from the time of institution
of the proceedings against him. He relies upon transcripts of
taped conversations between Mazzocchi and Parlavecchio to
demonstrate Mazzocchi’s alleged racial animus, but these
recordings were made available to him almost a year before
trial began.
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12(b)(3)(A). Because he has given no explanation or excuse
for his failure to raise them previously, we need not make an
exception to Cooper’s waiver. See Pitt, 193 F.3d at 760
(refusing to grant an exception to a waiver finding because
defendant had offered no explanation for failure to raise the
defense in a pretrial motion).
IV.
For the foregoing reasons, we will affirm the District
Court's judgments of conviction for both Salahuddin and
Cooper.
39