United States v. Greenberg

• Decision Date: 17 November 1971
• Docket Number: Cr. No. 71-88.
• Citation: 334 F. Supp. 1092
• Parties: UNITED STATES of America, Plaintiff, v. Meyer GREENBERG et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

334 F. Supp. 1092

UNITED STATES of America, Plaintiff, v. Meyer GREENBERG et al., Defendants.

Cr. No. 71-88.

United States District Court, N. D. Ohio, W. D.

November 17, 1971.

Peter M. Handwork, Asst. Atty. for the U. S., Toledo, Ohio, for plaintiff.

Robert J. Rotatori, Cleveland, Ohio, for defendants.

MEMORANDUM

DON J. YOUNG, District Judge.

Anthony J. Arnone, one of the defendants in this case, and his twelve co-defendants were charged in an indictment with both a conspiracy to violate Title 18 U.S.C. § 1955, thereby violating 18 U.S.C. § 371, and conducting an illegal gambling business in violation of 18 U. S.C. § 1955.

The grand jury returned a ten count indictment. Counts IV, VI, VIII and X charge this defendant with conspiracy. Counts III, V, VII, and IX contain the substantive violation of § 1955 against this same defendant.

This defendant has now moved to dismiss counts IV, VI, VIII and X on the ground that there exists a duplicity of offenses charged in the indictment. Arnone argues that where it is impossible under any circumstances to commit the substantive offense without cooperative action the preliminary agreement between the same parties to commit the offense is not an indictable conspiracy.

There is little dispute that conspiracy, by itself, constitutes a crime.

"* * * It has been repeatedly declared in decisions of this court, that a conspiracy to commit a crime is a different offense from the crime that is the object of the conspiracy. * * * The conspiracy, however fully formed may fail of its object, however earnestly pursued; the contemplated crime may never be consummated; yet the conspiracy is none the less punishable. * * * And it is punishable as conspiracy, though the intended crime be accomplished." United States v. Rabinowich, 238 U.S. 78, 85, 35 S.Ct. 682, 683, 59 L.Ed. 1211 (1914).

Commission of a substantive offense and a conspiracy to commit such an offense are separate and distinct offenses. United States v. Sykes, 305 F. 2d 172 (6th Cir. 1962).

There are, however, several important exceptions to this general rule, not all of which need to be discussed in connection with this case. In all of them there seems to be a lack of judicial clarity as to their application to particular facts, which compounds the difficulties presented by defendant's motion.

A recognized exception important in the present case has been called the "identity of offenses" exception.

In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the Court enunciated the test to be used to determine the appropriateness of this exception. At page 304, 52 S.Ct. at page 182, the Court stated:

"* * * The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not. Gavieres v. United States, 220 U.S. 338, 342 31 S.Ct. 421, 55 L.Ed. 489, and authorities cited."

This test, although clearly delineated and often applied when two substantive offenses are involved, does not appear to have been affirmatively applied in any case involving conspiracy. This may be due in part to the fact that in those cases where it has arisen the substantive offense involved only required the action of one party, whereas the conspiracy offense required the combination of two persons. This would seem to constitute the additional fact required to establish a separate offense. This test does not lend itself to decisive application in this case since both the conspiracy and the substantive offense require a plurality of actors. In attempting to apply this test to these circumstances, the result is a hopeless semantic quagmire.

The second and perhaps most important exception, for purposes of this case is what is known as the "concert of action" rule. This has also come to be known as "Wharton's Rule", and is stated in Wharton, 2 Criminal Law § 1339 as follows:

"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 character that is aggravated by a plurality of agents, cannot be maintained. As crimes to which concert is necessary (i. e. which cannot take place without concert), we may mention dueling, bigamy, incest, and adultery, to the last of which the limitations here expressed has been specifically applied by authoritative American courts. We have here the well known distinction between concursus necessarius and concursus facultativus —in the latter of which the occasion of a second agent, to the offense is an element added to its conception; in the former of which the participation of two agents is essential to its conception; and from this it follows that conspiracy, the gist of which is combination, added to the crime, does not lie for concursus necessarius. 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 this offense as conspiracy. Of course, when the offense is not consummated, and the conspiracy is one which by evil means a combination of persons is employed to effectuate, this combination is of itself indictable; and hence persons combining to induce others to commit bigamy, adultery, incest or dueling do not fall within this exception and may be indicted for conspiracy."

This doctrine has at least been recognized by many courts, although in many cases it has been held to be inapplicable to the case presented.¹ What is observed from all of the cases which touch upon this area is that the statutory requirements essential to the substantive offense must be taken into consideration.

The substantive crime involved here, a violation of 18 U.S.C. § 1955, reads in relevant part as follows:

"(a) Whoever conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling business shall be fined not more than $20,000 or imprisoned not more than five years, or both.

"(b) As used in this section—

"(1) `illegal gambling business' means a

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