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

______
2

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.
3

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 
4

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 setaside 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. 
5

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. 
6

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.
7

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 
8

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 
9

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 
10

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 
11

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) 
12

(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 
13

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 
14

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 
15

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. MonserrateValentin, 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).
16

§ 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).
17

(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). 
18

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 
19

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. 
20

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. 
21

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 thenMayor 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).
22

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 
23

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.
24

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 
25

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.
26

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 
27

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.
28

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 
29

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 
30

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: 
31

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.
32

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.
33

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 
34

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 
35

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 
36

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 
37

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 
38

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.
39

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.