Iannelli v. United States 8212 64, No. 73

• Court: United States Supreme Court
• Writing for the Court: POWELL
• Citation: 43 L.Ed.2d 616,95 S.Ct. 1284,420 U.S. 770
• Parties: Robert E. IANNELLI et al., Petitioners, v. UNITED STATES. —64
• Docket Number: No. 73
• Decision Date: 25 March 1975

420 U.S. 770 95 S.Ct. 1284 43 L.Ed.2d 616 Robert E. IANNELLI et al., Petitioners,

v.

UNITED STATES.

No. 73—64. Argued Dec. 17, 1974. Decided March 25, 1975.

Syllabus

Each of the eight petitioners, along with seven unindicted coconspirators and six codefendants, was charged with conspiring to violate (18 U.S.C. § 371), and with violating, 18 U.S.C. § 1955, a provision of the Organized Crime Control Act of 1970 (Act) aimed at large-scale gambling activities; and each petitioner was convicted and sentenced under both counts. The Court of Appeals affirmed, finding that prosecution and punishment for both offenses were permitted by a recognized exception to Wharton's Rule. Under that Rule 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 necessarily to require the participation of two persons for its commission, in such a case the conspiracy being deemed to have merged into the completed offense. Held: Petitioners were properly convicted and punished for violating 18 U.S.C. § 1955 and for conspiring to violate that statute, it being clear that Congress in enacting the Act intended to retain each offense as an independent curb in combating organized crime. Pp. 777-791.

(a) Traditionally conspiracy and the completed offense have been considered to constitute separate crimes, and this Court has recognized that a conspiracy poses dangers quite apart from the substantive offense. Wharton's Rule is an exception to the general principle that a conspiracy and the substantive offense that is its immediate end do not merge upon proof of the latter. Pp. 777-782.

(b) The Rule—which traditionally has been applied to offenses such as adultery where the harm attendant upon commission of the substantive offense is confined to the parties to the agreement and where the offense requires concerted criminal activity—has current vitality only as a judicial presumption to be applied in the absence of a contrary legislative intent. Pp. 782-786.

(c) Here such a contrary intent existed, for in drafting the Act Congress manifested its awareness of the distinct nature of a con-

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spiracy and the substantive offenses that might constitute its immediate end, as well as a desire to provide a number of discrete weapons for the battle against organized crime. Pp. 786-789.

(d) The requirement of participation of 'five or more persons' as an element of the § 1955 substantive offense reflects no more than an intent to limit federal intervention to cases where federal interests are substantially implicated, leaving to local law enforcement efforts the prosecution of small-scale gambling activities. Pp. 789-790.

3 Cir., 477 F.2d 999, affirmed.

James E. McLaughlin, Pittsburgh, Pa., for petitioners.

Mark L. Evans, Washington, D.C., for respondent.

Mr. Justice POWELL delivered the opinion of the Court.

This case requires the Court to consider Wharton's Rule, a doctrine of criminal law enunciating an exception to the general principle that a conspiracy and the substantive offense that is its immediate end are discrete crimes for which separate sanctions may be imposed.

I

Petitioners were tried under a six-count indictment alleging a variety of federal gambling offenses. Each of the eight petitioners, along with seven unindicted coconspirators and six codefendants, was charged, inter alia,

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with conspiring¹ to violate and violating 18 U.S.C. § 1955, a federal gambling statute making it a crime for five or more persons to conduct, finance, manage, supervise, direct, or own a gambling business prohibited by state law.² Each petitioner was convicted of both offenses,³ and each was sentenced under both the substantive and conspiracy counts.⁴ The Court of Appeals

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for the Third Circuit affirmed, finding that a recognized exception to Wharton's Rule permitted prosecuion and punishment for both offenses, 477 F.2d 999 (3 Cir. 1973). We granted certiorari to resolve the conflicts caused by the federal courts' disparate approaches to the application of Wharton's Rule to conspiracies to violate § 1955. 417 U.S. 907, 94 S.Ct. 2600, 41 L.Ed.2d 211 (1974). For the reasons now to be stated, we affirm.

II

Wharton's Rule owes its name to Francis Wharton, whose treatise on criminal law identified the doctrine and its fundamental rationale:

'When to the idea of an offense plurality of agents is logically necessary, conspiracy, which assumes the voluntary accession of a person to a crime of such a character that it is aggravated by a plurality of agents, cannot be maintained. . . . In other words, when the law says, 'a combination between two persons to effect a particular end shall be called, if the end be effected, by a certain name,' it is not lawful for the prosecution to call it by some other name; and when the law says, such an offense—e.g., adultery—shall have a certain punishment, it is not lawful for the prosecution to evade this limitation by indicting the offense as conspiracy.' 2 F. Wharton, Criminal Law § 1604, p. 1862 (12th ed. 1932).⁵

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The Rule has been applied by numerous courts, state⁶ and federal⁷ alike. It also has been recognized by this Court,⁸ although we have had no previous occasion carefully to analyze its justification and proper role in federal law.

The classic formulation of Wharton's Rule requires that the conspiracy indictment be dismissed before trial. Wharton's description of the Rule indicates that, where it is applicable, an indictment for conspiracy 'cannot be maintained,' ibid., a conclusion echoed by Anderson's more recent formulation, see n. 5, supra, and by state-

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ments of this Court as well, see Gebard v. United States, 287 U.S. 112, 122, 53 S.Ct. 35, 37, 77 L.Ed. 206 (1932); United States v. Katz, 271 U.S. 354, 355, 46 S.Ct. 513, 70 L.Ed. 986 (1926). Federal courts earlier adhered to this literal interpretation and thus sustained demurrers to conspiracy indictments. See United States v. New York C. & H.R.R. Co., 146 F. 298, 303—305 (CC SDNY 1906), aff'd, 212 U.S. 481, 29 S.Ct. 304, 53 L.Ed. 613 (1909); United States v. Dietrich, 126 F. 659 (CC Neb.1904). More recently, however, some federal courts have differed over whether Wharton's Rule requires initial dismissal of the conspiracy indictment. In United States v. Greenberg, 334 F.Supp. 1092 (ND Ohio 1971), and United States v. Figueredo, 350 F.Supp. 1031 (MD Fla.1972), rev'd sub nom. United States v. Vaglica, 490 F.2d 799 (CA5 1974), cert. pending, Scaglione v. United States, No. 73 1503, District Courts sustained preliminary motions to dismiss conspiracy indictments in cases in which the prosecution also charged violation of § 1955. In this case, 339 F.Supp. 171 (WD Pa.1972), and in United States v. Kohne, 347 F.Supp. 1178, 1186 (WD Pa.1972), however, the courts held that the Rule's purposes can be served equally effectively by permitting the prosecution to charge both offenses and instructing the jury that a conviction for the substantive offense necessarily precludes conviction for the conspiracy.

Federal courts likewise have disagreed as to the proper application of the recognized 'third-party exception,' which renders Wharton's Rule inapplicable when the conspiracy involves the cooperation of a greater number of persons than is required for commission of the substantive offense. See Gebardi v. United States, supra, 287 U.S., at 122 n. 6, 53 S.Ct., at 37. In the present case, the Third Circuit concluded that the third-party exception permitted prosecution because the conspiracy involved more than the five persons required to commit the substantive offense, 477 F.

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2d 999, a view shared by the Second Circuit, United States v. Becker, 461 F.2d 230, 234 (1972), vacated and remanded on other grounds, 417 U.S. 903, 94 S.Ct. 2597, 41 L.Ed.2d 208 (1974). ⁹ The Seventh Circuit reached the opposite result, however, reasoning that since § 1955 also covers gambling activities involving more than five persons, the third-party exception is inapplicable. United States v. Hunter, 478 F.2d 1019, cert. denied, 414 U.S. 857, 94 S.Ct. 162, 38 L.Ed.2d 107 (1973).

The Courts of Appeals are at odds even over the fundamental question whether Wharton's Rule ever applies to a charge for conspiracy to violate § 1955. The Seventh Circuit holds that it does. Hunter, supra; United States v. Clarke, 500 F.2d 1405 (1974), cert. denied, 420 U.S. 925, 95 S.Ct. 1121, 43 L.Ed.2d 394 (1975). The Fourth and Fifth Circuits, on the other hand, have declared that it does not. United States v. Bobo, 477 F.2d 974 (CA4 1973), cert. pending sub nom. Gray v. United States, No. 73 231; United States v. Pacheco, 489 F.2d 554 (CA5 1974), cert. pending, No. 73—1510.

As this brief description indicates, the history of the application of Wharton's Rule to charges for conspiracy to violate § 1955 fully supports the Fourth Circuit's observation that 'rather than being a rule, (it) is a concept, the confines of which have been delineated in widely diverse fashion by the courts.' United States v. Bobo, supra, 477 F.2d, at 986. With this diversity of views in mind, we turn to an examination of the history and purposes of the Rule.

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III A.

Traditionally the law has considered conspiracy and the completed substantive offense to be separate crimes. Conspiracy is an inchoate offense, the essence of which is an agreement to commit an unlawful act. See, e.g., United States v. Feola, 420 U.S. 671, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975); Pinkerton v. United States, 328 U.S. 640, 644, 66 S.Ct. 1180, 1182, 90 L.Ed. 1489 (1946); Braverman v. United States, 317 U.S. 49, 53, 63 S.Ct. 99, 101, 87 L.Ed. 23 (1942).¹⁰ Unlike some crimes that arise in a single transaction, see Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959); Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957), the conspiracy to...