United States v. Figueredo

• Decision Date: 20 November 1972
• Docket Number: Cr. No. 72-44.
• Citation: 350 F. Supp. 1031
• Parties: UNITED STATES of America, Plaintiff, v. Louis Henry FIGUEREDO, Jr., et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

350 F. Supp. 1031

UNITED STATES of America, Plaintiff, v. Louis Henry FIGUEREDO, Jr., et al., Defendants.

Cr. No. 72-44.

United States District Court, M. D. Florida, Tampa Division.

November 20, 1972.

John L. Briggs, U. S. Atty., by Bernard H. Dempsey, Jr., Asst. U. S. Atty., Tampa, Fla., for plaintiff.

Raymond E. LaPorte, Tampa, Fla., for Figueredos Jr. and Sr. and Charline Albritton.

Henry Gonzales, Tampa, Fla., for Omer Thomas Caron.

J. Hardin Peterson, Jr., Lakeland, Fla., for James I. Black.

Richard A. Bokor, Tampa, Fla., for Guy Stein, Sr.

John Demmi, Tampa, Fla., for Manuel Llano.

Clinton Curtis, Lake Wales, Fla., for A. T. Edwards.

MEMORANDUM OPINION

KRENTZMAN, District Judge.

Eight named defendants are charged in an indictment with conducting an illegal gambling operation in violation of 18 U.S.C. § 1955,¹ and with conspiracy to violate § 1955. Several motions to dismiss the indictment have been filed, and a hearing was held on said motions September 6, 1972. Based upon a consideration of these motions and the grounds urged in support thereof, the following memorandum opinion and order is entered.

Section 1955 was enacted as a part of the Organized Crime Control Act of 1970. This statute prohibits the operation of any "illegal gambling business." An illegal gambling business is statutorily defined as one which; 1) is a violation of state law; 2) involves five or more persons; and 3) has been in substantially continuous operation for over thirty days or has a gross revenue of $2,000 in any single day. Thus, an element of proof in the government's case is that "five or more persons" be shown to have been involved in the gambling business. This requirement was inserted in the statute in order to make the crime federally cognizable. 1970 U.S. Code Cong. & Admin.News p. 4029. Only gambling businesses of a substantial size are proscribed.

I. Constitutionality of § 1955

Defendants contend that § 1955 is unconstitutional in that the penal statute is not based or reasonably related to any Congressional powers. The power of Congress to make federal penal statutes is a limited power. United States v. Cruikshank, 92 U.S. 542, 551, 23 L.Ed. 588 (1876).

In a recent case, however, the Fifth Circuit upheld the constitutionality of § 1955. United States v. Harris, 460 F.2d 1041 (5 Cir. 1972). The Court held that Congress has made a finding that the class and size of activities proscribed have an effect on interstate commerce. As such, the statute is a valid exercise of Congressional power. See also Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971). Other circuits have also upheld the constitutionality of § 1955. E. g., United States v. Becker, 461 F.2d 230 (2 Cir. 1972). The above cases clearly demonstrate the constitutionality of § 1955, and defendants' arguments in this regard are without merit.

II. Wharton's Rule

Defendants contend that they cannot be prosecuted for conspiracy to violate § 1955. The Supreme Court has consistently recognized the rule that the commission of a substantive offense and a conspiracy to commit it are separate and distinct offenses. E. g., Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). Defendants urge that an important exception to this doctrine is the rule of law commonly known as Wharton's Rule. This Rule states:

"An agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy when the crime is of such a nature as to necessarily require the participation of two persons for its commission." Anderson, 1 Wharton's Criminal Law & Procedure, § 89, p. 191 (1957).

The theory behind the Rule is that where certain crimes, such as adultery, require the concerted action of two persons, these persons cannot be charged with a conspiracy to commit the offense. "The conspiracy is merged into the substantive offense, or at least is such an integral part of it that the two cannot be considered separate offenses." 11 A.L.R. 196 (1921). This rule of criminal law has long been recognized in federal courts. E. g., Gebardi v. United States, 287 U.S. 112, 53 S.Ct. 35, 77 L. Ed. 206 (1932); United States v. Dietrich, 126 F. 664, 667 (C.C.Neb.1904).

Wharton's Rule has generally been applied to crimes such as abortion, adultery, bribery, incest, and dueling. In each case, the crime cannot be effectuated without the concerted activity of two people. To charge the two persons with both the substantive crime and with a conspiracy to commit the crime would be grossly improper, for the substantive offense cannot logically be committed without a conspiracy. Thus conspiracy is an inherent element of the substantive offense, and should not be made an additional crime.

Conspiracies are made punishable because of the increased danger involved in group offense. A conspiracy is a separate crime because it is felt that when two or more persons combine to accomplish a criminal purpose, the added element of combination is sufficiently evil to be punished separately.

Conspiracy is a crime with common law roots and with an unpopular background. See Sayre, Criminal Conspiracy, 35 Harv.L.Rev. 393. Justice Jackson once commented upon the concept of conspiracy as a separate crime:

"The looseness and pliability of the doctrine present inherent dangers which should be in the background of judicial thought wherever it is sought to extend the doctrine to meet the exigencies of a particular case."

Krulewitch v. United States, 336 U.S. 440, 449, 69 S.Ct. 716, 721, 93 L.Ed. 367 (1949) (Jackson, J., concurring).

The Supreme Court has indicated that it will view with disfavor attempts to broaden the scope of conspiracy prosecutions. Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957). When seen in this context, Wharton's Rule presents itself as a logical limitation on the use of conspiracy charges by prosecutors.

In the instant case the elderly and respectable Rule runs up against a modern penal statute directed toward organized crime activities of a sufficiently large size to come within the ambit of federal jurisdiction. Consideration of the problem by federal courts in two circuits have resulted in different holdings.

In United States v. Greenberg, 334 F. Supp. 1092 (N.D.Ohio 1971), the Court applied Wharton's Rule and held that thirteen defendants therein could not be charged with a conspiracy to violate § 1955. That Court stated:

". . . Congress has made the offense federally cognizable only when there are five or more participants. One of the bases of federal intervention is a concert of action between the parties. In other words, the offense is one involving the element of concursis necessarius. That is, it is absolutely necessary that there be a plurality of parties and it is necessary that there be concerted action among them. It therefore appears that a charge of conspiring to commit the offense should not be maintainable." Id. at 1095

The Second Circuit, however, disagreed with the Greenberg result. In United States v. Becker, 461 F.2d 230 (2 Cir. 1972), that Court held that Wharton's Rule had no application where more than five persons were charged with violating § 1955. Since § 1955 requires only five persons to be involved in the gambling operation, the Court held that charging more than five persons brought the case outside of the application of the Rule. Citing a recent case in that circuit,² the Court stated that:

"As long as the conspiratorial concert of action and the substantive offense underlying it are not coterminous and fewer participants are required for the commission of the substantive offense than are named as joining in a conspiracy to commit it, there is no infirmity in the conspiracy indictment." Id. at 234.

A lower court in the Second Circuit has conformed to the Becker holding. United States v. Mainello, 345 F.Supp. 863, 883 (E.D.N.Y.1972). Under this line of cases, Wharton's Rule is neatly side-stepped by the simple prosecutorial expediency of charging more than five persons with both the substantive crime and conspiracy to violate it.

The question sub judice does not appear to have been considered by the Fifth Circuit Court of Appeals. Harris, supra, makes no reference to it. This Court has obtained a copy of the indictment which was before the Harris court and it is a one count violation of Section 1955. Resolution of the problem requires, among other things, a careful analysis of Wharton's Rule and the various exceptions which have been applied to it. Wharton's Rule has a valid place in modern criminal law. Even though the Rule was designed in relation to common law crimes necessarily involving two persons, 1955 is a statute logically connected to such crimes. One man alone cannot violate § 1955; indeed, any number of persons less than five cannot violate the statute. At least five persons must be involved in the gambling business. Thus, each would be guilty if, and only if, at least four others were also involved. Concerted action is of the essence in this crime.

There are four generally recognized exceptions to the application of Wharton's Rule. See Anderson, 1 Wharton's Criminal Law & Procedure § 89, pp. 191-94. The Rule does not apply when the offense could be committed by one of the conspirators alone. E. g., Chadwick v. United States, 141 F. 225 (6 Cir. 1905). This exception has no application with regard to § 1955, as five persons must be involved.

It could be argued that under § 1955, only one person could be charged with the crime. This does not, however, affect the application of the Rule. In any of the crimes coming within the Rule, only one of the participants could conceivably be charged. For instance, only one duelor might be charged, but this does not affect the fact that at least one other person necessarily committed the crime with the one charged. In the instant case, if only one defendant were charged in the indictment, at least four others...