United States v. Pacheco

Decision Date07 March 1974
Docket NumberNo. 72-3355.,72-3355.
Citation489 F.2d 554
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Louis B. PACHECO and John N. Fountain, Jr., Defendants-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit


Arnold Levine, Tampa, Fla., for defendants-appellants.

John L. Briggs, U.S. Atty., Jacksonville, Fla., Bernard H. Dempsey, Jr., Claude H. Tison, Jr., Asst. U.S. Attys., Tampa, Fla., for plaintiff-appellee.

Before GEWIN, AINSWORTH and MORGAN, Circuit Judges.

Rehearing and Rehearing En Banc Denied March 7, 1974.

AINSWORTH, Circuit Judge:

Appellants Louis B. Pacheco and John N. Fountain, Jr., were indicted, along with fifty-eight other persons, in a two-count indictment charging them with operation of an illegal gambling business, in violation of 18 U.S.C. §§ 19551 and 2,2 and with conspiracy to operate an illegal gambling business, in violation of 18 U.S.C. § 371.3 All those indicted were allegedly participants in the same illegal gambling organization involving bookmaking and numbers operations in Florida. By the date set for trial, fifty-two of the defendants entered pleas of guilty to one or both counts, and only four defendants were left for trial.4 After a two-week jury trial, verdicts of guilty on both counts were returned as to three of the defendants, including appellants here. The fourth defendant was found guilty on count II but was acquitted on the conspiracy charge contained in count I. Appellant Pacheco was placed on a three-year probation, and appellant Fountain was sentenced to six months in jail plus a five-year probation. Appellants do not contest the sufficiency of the evidence presented at trial to support their convictions; rather, they raise several issues concerning the trial court's rulings on certain motions and on particular matters of evidence. After careful consideration of their assertions of error, we affirm appellants' convictions.


For federal jurisdiction to exist over the operation of an illegal gambling business, in violation of 18 U.S.C. § 1955, it is necessary to show, inter alia, that the business "involved five or more persons" in its conduct, financing, management, supervision, direction, or ownership. 18 U.S.C. § 1955(b)(1)(ii). Because of this jurisdictional requirement, appellants, relying on Wharton's rule, see page 558, infra, contend that it was improper to charge them with both the substantive offense of operating an illegal gambling business and a conspiracy to commit that offense; and that the trial court, therefore, erred in denying their motions to dismiss count I of the indictment, which charged a violation of 18 U.S.C. § 371. While Wharton's rule, properly applied, may occupy a legitimate place in the criminal law,5 it would be inappropriate to apply it in the present situation.

It is fundamental that "the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses", Callanan v. United States, 364 U.S. 587, 593, 81 S.Ct. 321, 325, 5 L.Ed.2d 312 (1961); Pinkerton v. United States, 328 U.S. 640, 643, 66 S. Ct. 1180, 1182, 90 L.Ed. 1489 (1946), and a person may ordinarily be convicted of and sentenced for both. Pinkerton v. United States, 328 U.S. at 643, 66 S. Ct. at 1182. Conspiracy is a separate offense on the theory that collective criminal agreement presents greater antisocial potentialities than criminal activity pursued by individuals. See, e. g., W. LaFave & A. Scott, Jr., Criminal Law 459-60 (1972); Developments in the Law—Criminal Conspiracy, 72 Harv.L.Rev. 920, 923-24 (1959). "Concerted action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality." Callanan v. United States, 364 U.S. at 593, 81 S.Ct. at 325.

Wharton's rule affords a narrowly limited exception to the principle that conspiracy, as well as the substantive offense, may be prosecuted. That rule, as stated by the commentator whose name it bears, provides that "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 nature that it is aggravated by a plurality of agents, cannot be maintained." 2 F. Wharton, Criminal Law § 1604, at 1862 (12th ed. 1932). The classic situations in which the rule is said to apply are dueling, bigamy, adultery, and incest. Id. The apparent rationale of the rule is that it is grossly unjust to punish two parties for the commission of a crime and for combining to commit the crime when the combination is an inherent element of the substantive offense. See R. Anderson, 1 Wharton's Criminal Law and Procedure § 89 (1957); Developments in the Law—Criminal Conspiracy, supra, at 953-56. In the case law, the rule has been applied almost exclusively to instances in which the object of the alleged conspiracy was a two-party crime, such as the giving and receiving of bribes, United States v. Dietrich, 126 F. 664 (C.C.D.Neb.1904); People v. Wettengel, 98 Colo. 193, 58 P.2d 279 (1935), or the buying and selling of contraband goods, United States v. Katz, 271 U.S. 354, 355, 46 S.Ct. 513, 70 L.Ed. 986 (1926) (dictum). The rule has been held not to apply when the number of conspirators exceeds the number of participants essential to the contemplated crime. See, e. g., United States v. Iannelli, 3 Cir., 1973, 477 F.2d 999, 1002 (18 U.S.C. § 1955); United States v. Becker, 2 Cir., 1972, 461 F.2d 230, 234 (18 U.S.C. § 1955); Baker v. United States, 9 Cir., 1968, 393 F.2d 604, 610, cert. denied, 393 U.S. 836, 89 S.Ct. 110, 21 L.Ed.2d 106; Old Monastery Co. v. United States, 4 Cir., 1945, 147 F.2d 905, 907-908, cert. denied, 326 U.S. 734, 66 S.Ct. 44, 90 L.Ed. 437.6

In asking us to apply Wharton's rule to the section 1955 situation, appellants misconceive the import of that section's jurisdictional requirement that five or more persons be involved in the illegal gambling business. Such jurisdictional requirements are unrelated to the criminal character of the conduct and should be separately treated. See, e. g., United States v. Blassingame, 2 Cir., 1970, 427 F.2d 329, 330, cert. denied, 402 U.S. 945, 91 S.Ct. 1629, 29 L.Ed.2d 114 (1971); Overton v. United States, 5 Cir., 1968, 405 F.2d 168, 169; Pipes v. United States, 5 Cir., 1968, 399 F.2d 471, 472, cert. denied, 394 U.S. 934, 89 S.Ct. 1207, 22 L.Ed.2d 464 (1969); Pilgrim v. United States, 5 Cir., 1959, 266 F.2d 486, 488.

In enacting the Organized Crime Control Act of 1970, of which section 1955 is a part, Congress directed its attention to large-scale, syndicated gambling because it was thought that "organized crime derives a major portion of its power through money obtained from such illegal endeavors as inter alia syndicated gambling . . . ." 1970 U.S.Code Cong. & Admin.News p. 1073. As its jurisdictional basis for making organized gambling prosecutable in a federal court, Congress relied on its power to regulate interstate commerce. Section 1955 was drafted to prohibit only those gambling businesses that reach a size and scope certain to have significant interstate impact. See United States v. Harris, 5 Cir., 1972, 460 F.2d 1041, cert. denied, 409 U.S. 877, 93 S.Ct. 128, 34 L.Ed.2d 130. The section contains a jurisdictional statement—separate from the statement of prohibited conduct— that defines "illegal gambling business" as a business that involves five or more persons and that either is in continuous operation for more than thirty days or has a gross revenue of $2,000 in any single day. 18 U.S.C. § 1955(b)(1). Through this jurisdictional statement, Congress sought to confine federal attention to large-scale organized gambling, which clearly has direct effects on interstate commerce. It is apparent, therefore, that participation by a group of persons was included as a jurisdictional element in section 1955 for reasons wholly separate from those that explain the presence of concerted activity as a substantive element in the traditional Wharton's rule crimes.

Section 1955 left the states with control of enforcement efforts against smaller gambling operations that did not meet the minimum jurisdictional requirements, though such businesses might be identical to the others in every respect except size: "The intent of section 1511 and section 1955, below, is not to bring all illegal gambling activity within the control of the Federal Government, but to deal only with illegal gambling activities of major proportions."7 Thus, in its section 1955 jurisdictional statement, Congress was making no distinctions between the conduct prohibited by section 1955 and that conduct not within its scope. The activity proscribed by section 1955 is not a unique offense distinguishable in its substantive elements from the crime of operating an illegal gambling business involving less than five persons—or for that matter, involving one person.

Wharton's rule is applicable only when more than one party is necessary to perform the basic crime. It prevents prosecution for conspiracy only where the proscribed type of conduct cannot take place without such concert of action. The basic conduct prohibited by section 1955, however—the operation of an illegal gambling business—does not require concert of action. It is not, therefore, a proper subject for the application of Wharton's rule. The trial court properly denied appellants' motions to dismiss the conspiracy count of the indictment. See United States v. Bobo, 4 Cir., 1973, 477 F.2d 974, 985-987; Note, Wharton's Rule and Conspiracy to Operate an Illegal Gambling Business, 30 Wash. & Lee L.Rev. 613 (1973). See also United States v. Iannelli, 3 Cir., 1973, 477 F.2d 999, 1002; United States v. Becker, 2 Cir., 1972, 461 F.2d 230, 234.8


Appellants next contend that the trial court erred in denying their motions for severance of...

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