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.
420 U. S.
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.
420 U. S.
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.
420 U. S.
782-786.
(c) Here such a contrary intent existed, for, in drafting the
Act, Congress manifested its awareness of the distinct nature of a
conspiracy
Page 420 U. S. 771
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.
420 U. S.
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.
420 U. S.
789-790.
477 F.2d 999, affirmed.
POWELL, J., delivered the opinion of the Court, in which BURGER,
C.J., and WHITE, BLACKMUN, and REHNQUIST, JJ., joined. DOUGLAS, J.,
filed a dissenting opinion, in Part II of which STEWART and
MARSHALL, JJ., joined,
post, p.
420 U. S. 791.
BRENNAN, J., filed a dissenting opinion,
post, p.
420 U. S.
798.
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,
Page 420 U. S. 772
with conspiring [
Footnote 1]
to violate and violating 18 U.S.C. § 1955, a federal gambling
statute making it a crime for five or more person to conduct,
finance, manage, supervise, direct, or own a gambling business
prohibited by state law. [
Footnote
2] Each petitioner was convicted of both offenses, [
Footnote 3] and each was sentenced
under both the substantive and conspiracy counts. [
Footnote 4] The Court of Appeals
Page 420 U. S. 773
for the Third Circuit affirmed, finding that a recognized
exception to Wharton's Rule permitted prosecution and punishment
for both offenses, 477 F.2d 99 (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 (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).
[
Footnote 5]
Page 420 U. S. 774
The Rule has been applied by numerous courts, state [
Footnote 6] and federal [
Footnote 7] alike. It also has been
recognized by this Court, [
Footnote
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 statements
Page 420 U. S. 775
of this Court as well,
see Gebardi v. United States,
287 U. S. 112,
287 U. S. 122
(1932);
United States v. Katz, 271 U.
S. 354,
271 U. S. 355
(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. 212 U.S.
481 (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 sub nom.
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, at 122 n. 6. 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.2d
Page 420 U. S. 776
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 (1974). [
Footnote 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 (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, post, p. 925. 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. 7231;
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, at 986. With this diversity
of views in mind, we turn to an examination of the history and
purposes of the Rule.
Page 420 U. S. 777
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, ante,
p.
420 U. S. 671;
Pinkerton v. United States, 328 U.
S. 640,
328 U. S. 644
(1946);
Braverman v. United States, 317 U. S.
49,
317 U. S. 53
(1942). [
Footnote 10] Unlike
some crimes that arise in a single transaction,
see Heflin v.
United States, 358 U. S. 415
(1959);
Prince v. United States, 352 U.
S. 322 (1957), the conspiracy to commit an offense and
the subsequent commission of that crime normally do not merge into
a single punishable act.
Pinkerton v. United States,
supra, at
328 U. S. 643.
[
Footnote 11] Thus, it is
well recognized that, in most cases, separate sentences can be
imposed for the conspiracy to
Page 420 U. S. 778
do an act and for the subsequent accomplishment of that end.
Feola, supra; Callanan v. United States, 364 U.
S. 587 (1961);
Pinkerton, supra; Carter v.
McClaughry, 183 U. S. 365
(1902). Indeed, the Court has even held that the conspiracy can be
punished more harshly than the accomplishment of its purpose.
Clune v. United States, 159 U. S. 590
(1895).
The consistent rationale of this long line of decisions rests on
the very nature of the crime of conspiracy. This Court repeatedly
has recognized that a conspiracy poses distinct dangers quite apart
from those of the substantive offense.
"This settled principle derives from the reason of things in
dealing with socially reprehensible conduct: collective criminal
agreement -- partnership in crime -- presents a greater potential
threat to the public than individual delicts. 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.
Group association for criminal purposes often, if not normally,
makes possible the attainment of ends more complex than those which
one criminal could accomplish. Nor is the danger of a
conspiratorial group limited to the particular end toward which it
has embarked. Combination in crime makes more likely the commission
of crimes unrelated to the original purpose for which the group was
formed. In sum, the danger which a conspiracy generates is not
confined to the substantive offense which is the immediate aim of
the enterprise."
Callanan v. United States, supra, at
364 U. S.
593-594. As Mr. Justice Jackson, no friend of the law of
conspiracy,
see Krulewitch v. United States, 336 U.
S. 440,
336 U. S.
445
Page 420 U. S. 779
(1949) (concurring opinion), observed: "The basic rationale of
the law of conspiracy is that a conspiracy may be an evil in
itself, independently of any other evil it seeks to accomplish."
Dennis v. United States, 341 U. S. 494,
341 U. S. 573
(1951) (concurring opinion).
See also United States v.
Rabinowich, 238 U. S. 78,
238 U. S. 88
(1915).
B
The historical difference between the conspiracy and its end has
led this Court consistently to attribute to Congress
"a tacit purpose -- in the absence of any inconsistent
expression -- to maintain a long-established distinction between
offenses essentially different; a distinction whose practical
importance in the criminal law is not easily overestimated."
Ibid.; Callanan, supra, at
364 U. S. 594.
Wharton's Rule announces an exception to this general
principle.
The Rule traces its origin to the decision of the Pennsylvania
Supreme Court in
Shannon v. Commonwealth, 14 Pa. 226
(1850), a case in which the court ordered dismissal of an
indictment alleging conspiracy to commit adultery that was brought
after the State had failed to obtain conviction for the substantive
offense. Prominent among the concerns voiced in the
Shannon opinion is the possibility that the State could
force the defendant to undergo subsequent prosecution for a lesser
offense after failing to prove the greater. The
Shannon
court's holding reflects this concern, stating that
"where concert is a constituent part of the act to be done, as
it is in fornication and adultery,
a party acquitted of the
major cannot be indicated of the minor."
Id. at 227-228.
Wharton's treatise first reported the case as one based on
principles of double jeopardy,
see F. Wharton, Criminal
Law 198 (2d ed. 1852), and indicated that it was
Page 420 U. S. 780
limited to that context. [
Footnote 12] Subsequently, however, Wharton came to view
the principle as one of broader application. The seventh edition of
Wharton's treatise reported the more general rule which is repeated
in similar form today.
Shannon v. Commonwealth was said to
be an application of the principle, rather than its source. 2 F.
Wharton, Criminal Law 634 (7th ed. 1874).
This Court's previous discussions of Wharton's Rule have not
elaborated upon its precise role in federal law. In most instances,
the Court simply has identified the Rule and described it in terms
similar to those used in Wharton's treatise. But in
United
States v. Holte, 236 U. S. 140
(1915), the sole case in which the Court felt compelled
specifically to consider the applicability of Wharton's Rule, it
declined to adopt an expansive definition of its scope. In that
case, Wharton's Rule was advanced as a bar to prosecution of a
female for conspiracy to violate the Mann Act. Rejecting that
contention, the Court adopted a narrow construction of the Rule
that focuses on the statutory requirements of the substantive
offense, rather than the evidence offered to prove those elements
at trial:
"The substantive offence might be committed without the woman's
consent, for instance, if she were drugged or taken by force.
Therefore the decisions that it is impossible to turn the
concurrence
Page 420 U. S. 781
necessary to effect certain crimes such as bigamy or dueling
into a conspiracy to commit them do not apply."
Id. at 145.
Wharton's Rule first emerged at a time when the contours of the
law of conspiracy were in the process of active formulation. The
general question whether the conspiracy merged into the completed
felony offense remained for some time a matter of uncertain
resolution. [
Footnote 13]
That issue is now settled, however, and the Rule currently stands
as an exception to the general principle that a conspiracy and the
substantive offense that is its immediate
Page 420 U. S. 782
end do not merge upon proof of the latter.
See Pinkerton v.
United States, 328 U. S. 640
(1946). If the Rule is to serve a rational purpose in the context
of the modern law of conspiracy, its role must be more precisely
identified.
C
This Court's prior decisions indicate that the broadly
formulated Wharton's Rule does not rest on principles of double
jeopardy,
see Pereira v. United States, 347 U. S.
1,
347 U. S. 11
(1954);
Pinkerton, supra, at
328 U. S.
643-644. [
Footnote
14] Instead, it has current vitality only as a judicial
presumption, to be applied in the absence of legislative intent to
the contrary. The classic Wharton's Rule offenses -- adultery,
incest, bigamy, duelling -- are crimes that are characterized by
the general congruence of the agreement and the completed
substantive offense. The parties to the agreement are the only
persons who participate in commission of the substantive offense,
[
Footnote 15] and the
immediate consequences
Page 420 U. S. 783
of the crime rest on the parties themselves, rather than on
society at large.
See United States v. Bobo, 477 F.2d at
987. Finally, the agreement that attends the substantive offense
does not appear likely to pose the distinct kinds of threats to
society that the law of conspiracy seeks to avert. [
Footnote 16] It cannot, for
Page 420 U. S. 784
example, readily be assumed that an agreement to commit an
offense of this nature will produce agreements to engage in a more
general pattern of criminal conduct.
Cf. Callanan v United
States, 364 U. S. 587
(1961);
United States v. Rabinowich, 238 U. S.
78 (1915).
The conduct proscribed by § 1955 is significantly different from
the offenses to which the Rule traditionally has been applied.
Unlike the consequences of the classic Wharton's Rule offenses, the
harm attendant upon the commission of the substantive offense is
not restricted to the parties to the agreement. Large-scale
gambling activities seek to elicit the participation of additional
persons -- the bettors -- who are parties neither to the conspiracy
nor to the substantive offense that results from it. Moreover, the
parties prosecuted for the conspiracy need not be the same persons
who are prosecuted for commission of the substantive offense. An
endeavor as complex as a large-scale gambling enterprise might
involve persons who have played appreciably different roles, and
whose level of culpability varies significantly. It might,
therefore, be appropriate to prosecute the owners and organizers of
large-scale gambling operations both for the conspiracy and for the
substantive offense, but to prosecute the lesser participants only
for the substantive offense. Nor can it fairly be maintained that
agreements to enter into large-scale gambling activities are not
likely to generate additional agreements to engage in other
criminal endeavors. As shown in
420 U. S. the
legislative history of § 1955 provides documented testimony to the
contrary.
Page 420 U. S. 785
Wharton.'s Rule applies only to offenses that require concerted
criminal activity, a plurality of criminal agents. In such cases, a
closer relationship exists between the conspiracy and the
substantive offense because both require collective criminal
activity. The substantive offense therefore presents some of the
same threats that the law of conspiracy normally is thought to
guard against, and it cannot automatically be assumed that the
Legislature intended the conspiracy and the substantive offense to
remain as discrete crimes upon consummation of the latter.
[
Footnote 17] Thus, absent
legislative intent to the
Page 420 U. S. 786
contrary, the Rule supports a presumption that the two merge
when the substantive offense is proved. [
Footnote 18]
But a legal principle commands less respect when extended beyond
the logic that supports it. In this case, the significant
differences in characteristics and consequences of the kinds of
offenses that gave rise to Wharton's Rule and the activities
proscribed by § 1955 counsel against attributing significant weight
to the presumption the Rule erects. More important, as the Rule is
essentially an aid to the determination of legislative intent, it
must defer to a discernible legislative judgment. We turn now to
that inquiry.
IV
The basic purpose of the Organized Crime Control Act of 1970,
Pub.L. No. 9152, 84 Stat. 922, 923, was
"to seek the eradication of organized crime in the United States
by strengthening the legal tools in the evidence-gathering process,
by establishing new penal prohibitions, and by providing enhanced
sanctions and new remedies to deal with the unlawful activities of
those engaged in organized crime."
The content of the Act reflects the dedication with which the
Legislature pursued this purpose. In addition to enacting
provisions to facilitate the discovery and proof of organized
criminal activities, Congress passed a number of relatively severe
penalty provisions. For example, Title X, codified in 18 U.S.C. §§
3575-3578,
Page 420 U. S. 787
identifies for harsher sentencing treatment certain "dangerous
special offenders," among them persons who initiate, direct, or
supervise patterns of criminal conduct or conspiracies to engage in
such conduct, and persons who derive substantial portions of their
income from those activities. [
Footnote 19] § 3575(e).
Major gambling activities were a principal focus of
congressional concern. Large-scale gambling enterprises were seen
to be both a substantive evil and a source of funds for other
criminal conduct.
See S.Rep. No. 91617, pp. 71-73 (1969).
[
Footnote 20] Title VIII
thus was enacted
Page 420 U. S. 788
"to give the Federal Government a new substantive weapon, a
weapon which will strike at organized crime's principal source of
revenue: illegal gambling."
Id. at 71. In addition to declaring that certain
gambling activities violate federal as well as state law, 18 U.S.C.
§ 1955, Title VIII provides new penalties for conspiracies to
obstruct state law enforcement efforts for the purpose of
facilitating the conduct of these activities. 18 U.S.C. § 1511.
In drafting the Organized Crime Control Act of 1970, Congress
manifested its clear awareness of the distinct nature of a
conspiracy and the substantive offenses that might constitute its
immediate end. The identification of "special offenders" in Title X
speaks both to persons who commit specific felonies during the
course of a pattern of criminal activity and to those who enter
into conspiracies to engage in patterns of criminal conduct. 18
U.S.C. § 3575(e). And Congress specifically utilized the law of
conspiracy to discourage organized crime's corruption of state and
local officials for the purpose of facilitating gambling
enterprises. 18 U.S.C. § 1511. [
Footnote 21]
Page 420 U. S. 789
But the § 1955 definition of "gambling activities" pointedly
avoids reference to conspiracy or to agreement, the essential
element of conspiracy. Moreover, the limited § 1955 definition is
repeated in identifying the reach of § 1511, a provision that
specifically prohibits conspiracies. Viewed in this context, and in
light of the numerous references to conspiracies throughout the
extensive consideration of the Organized Crime Control Act, we
think that the limited congressional definition of "gambling
activities" in § 1955 is significant. The Act is a carefully
crafted piece of legislation. Had Congress intended to foreclose
the possibility of prosecuting conspiracy offenses under § 371 by
merging them into prosecutions under § 1955, we think it would have
so indicated explicitly. It chose instead to define the substantive
offense punished by § 1955 in a manner that fails specifically to
invoke the concerns which underlie the law of conspiracy.
Nor do we find merit to the argument that the congressional
requirement of participation of "five or more persons" as an
element of the substantive offense under § 1955 represents a
legislative attempt to merge the conspiracy and the substantive
offense into a single crime. The history of the Act instead reveals
that this requirement was designed to restrict federal intervention
to cases in which federal interests are substantially implicated.
The findings accompanying Title VIII,
see note
Page 420 U. S. 790
following 18 U.S.C. § 1511, would appear to support the
assertion of federal jurisdiction over all illegal gambling
activities,
cf. Heart of Atlanta Motel v. United States,
379 U. S. 241,
379 U. S. 258
(1964);
Katzenbach v. McClung, 379 U.
S. 294 (1964). Congress did not, however, choose to
exercise its power to the fullest. Recognizing that gambling
activities normally are matters of state concern, Congress
indicated a desire to extend federal criminal jurisdiction to reach
only "those who are engaged in an illicit gambling business of
major proportions." S.Rep. No. 91-617, p. 73 (1969). It accordingly
conditioned the application of § 1955 on a finding that the
gambling activities involve five or more persons and that they
remain substantially in operation in excess of 30 days or attain
gross revenues of $2,000 in a single day. 18 U.S.C. §
1955(b)(1)(iii) (1970 ed. and Supp. III). [
Footnote 22] Thus, the requirement of "concerted
activity" in § 1955 reflects no more than a concern to avoid
federal prosecution of small-scale gambling activities which pose a
limited threat to federal interests and normally can be combated
effectively by local law enforcement efforts.
Viewed in the context of this legislation, there simply is no
basis for relying on a presumption to reach a result so
Page 420 U. S. 791
plainly at odds with congressional intent. We think it evident
that Congress intended to retain each offense as an "independent
curb" available for use in the strategy against organized crime.
Gore v. United States, 357 U. S. 386,
357 U. S. 389
(1958). We conclude, therefore, that the history and structure of
the Organized Crime Control Act of 1970 manifest a clear and
unmistakable legislative judgment that more than outweighs any
presumption of merger between the conspiracy to violate § 1955 and
the consummation of that substantive offense.
V
In expressing these conclusions, we do not imply that the
distinct nature of the crimes of conspiracy to violate and
violation of § 1955 should prompt prosecutors to seek separate
convictions in every case, or judges necessarily to sentence in a
manner that imposes an additional sanction for conspiracy to
violate § 1955 and the consummation of that end. Those decisions
fall within the sound discretion of each, and should be rendered in
accordance with the facts and circumstances of a particular case.
We conclude only that Congress intended to retain these traditional
options. Neither Wharton's Rule nor the history and structure of
the Organized Crime Control Act of 1970 persuade us to the
contrary.
Affirmed.
[
Footnote 1]
The general conspiracy statute under which this action was
brought, 18 U.S.C. § 371, provides in pertinent part:
"If two or more persons conspire either to commit any offense
against the United States, or to defraud the United States, or any
agency thereof in any manner or for any purpose, and one or more of
such persons do any act to effect the object of the conspiracy,
each shall be fined not more than $10,000 or imprisoned not more
than five years, or both. . . ."
[
Footnote 2]
Title 18 U.S.C. § 1955 (1970 ed. and Supp. III) provides in
pertinent part:
"(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 gambling business which
-- "
"(i) is a violation of the law of a State or political
subdivision in which it is conducted;"
"(ii) involves five or more persons who conduct, finance,
manage, supervise, direct, or own all or part of such business;
and"
"(iii) has been or remains in substantially continuous operation
for a period in excess of thirty days or has a gross revenue of
$2,000 in any single day."
"(2) 'gambling' includes but is not limited to pool-selling,
book making, maintaining slot machines, roulette wheels or dice
tables, and conducting lotteries, policy, bolita or numbers games,
or selling chances therein. . . ."
[
Footnote 3]
Petitioner Iannelli additionally was convicted of mailing
gambling paraphernalia, 18 U.S.C. § 1302, and using a fictitious
name for the purpose of conducting unlawful bookmaking activities
by means of the Postal Service. 18 U.S.C. § 1342.
[
Footnote 4]
On the substantive counts, each petitioner was fined and
sentenced to imprisonment and a subsequent term of probation. Each
petitioner also was sentenced to an additional probationary period
for the conspiracy conviction. Petitioner Iannelli's probationary
sentence is equal in length to that imposed for the substantive
violations and is to be served concurrently. The probationary
sentence imposed on each of the other petitioners for the
conspiracy offense likewise is to be served concurrently with the
probationary term imposed for the § 1955 violation. In their cases,
however, the probationary term for the conspiracy offense exceeds
that imposed for violation of § 1955.
[
Footnote 5]
The current edition of Wharton's treatise states the Rule more
simply:
"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."
1 R. Anderson, Wharton's Criminal Law and Procedure § 89, p. 191
(1957).
[
Footnote 6]
See, e.g., People v. Wettengel, 98 Colo.193, 198, 58
P.2d 279, 281 (1935);
People v. Purcell, 304 Ill.App. 215,
217, 26 N.E.2d 153, 154 (1940);
Robinson v. State, 184
A.2d 814, 820 (Md.Ct.App. 1962).
[
Footnote 7]
See, e.g., United States v. New York C. & H.R. R.
Co., 146 F. 298, 303-305 (CC SDNY 1906),
aff'd,
212 U. S. 481
(1909);
United States v. Zeuli, 137 F.2d 845 (CA2 1943);
United States v. Dietrich, 126 F. 659, 667 (CC Neb.1904);
United States v. Sager, 49 F.2d 725, 727 (CA2 1931).
[
Footnote 8]
The Court's most complete description of the Rule appears in
Gebardi v. United States, 287 U.
S. 112,
287 U. S.
121-122 (1932):
"Of this class of cases, we say that the substantive offense
contemplated by the statute itself involves the same combination or
community of purpose of two persons only which is prosecuted here
as conspiracy. . . . [T]hose decisions . . . hold, consistently
with the theory upon which conspiracies are punished, 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 either at common law . . . or under the federal
statute."
(Citations omitted.)
See also Pinkerton v. United
States, 328 U. S. 640,
328 U. S. 642
(1946);
United States v. Katz, 271 U.
S. 354,
271 U. S. 355
(1926);
United States v. Holte, 236 U.
S. 140,
236 U. S. 145
(1915).
[
Footnote 9]
This appears to represent a departure from the Second Circuit's
earlier view. The conspiracy charge dismissed in
United States
v. Sager, 49 F.2d 725 (CA2 1931), involved agreements by more
than two persons to commit substantive offenses that could have
been consummated by only two. In that case, however, the Second
Circuit determined that Wharton's Rule precluded indictment for
both offenses.
[
Footnote 10]
The agreement need not be shown to have been explicit. It can
instead be inferred from the facts and circumstances of the case.
See Direct Sales Co. v. United States, 319 U.
S. 703,
319 U. S.
711-713 (1943). In some cases, reliance on such evidence
perhaps has tended to obscure the basic fact that the agreement is
the essential evil at which the crime of conspiracy is directed.
See Note, Developments in the Law -- Criminal Conspiracy,
72 Harv.L.Rev. 920, 933-934 (1959). Nonetheless, agreement remains
the essential element of the crime, and serves to distinguish
conspiracy from aiding and abetting which, although often based on
agreement, does not require proof of that fact,
see Pereira v.
United States, 347 U. S. 1,
347 U. S. 11
(1954), and from other substantive offenses as well.
Id.
at
347 U. S.
11-12.
[
Footnote 11]
This was not always the case. Under the early common law, a
conspiracy, which was a misdemeanor, was considered to merge into
the completed felony that was its object. That rule was based on
the significant procedural differences then existing between felony
and misdemeanor trials. As the procedural distinctions diminished,
the merger concept lost its force, and eventually disappeared.
See generally Callanan v. United States, 364 U.
S. 587,
364 U. S.
589-590 (1961), and sources cited therein.
[
Footnote 12]
The sixth edition of Wharton's treatise reported the principle
of
Shannon v. Commonwealth, 14 Pa. 226 (1850), in the
following manner:
"It has been recently held in Pennsylvania that no indictment
lies for a conspiracy between a man and a woman to commit adultery.
It was said by the learned judge who tried the case that, where
concert is the essential ingredient to the act, there is no
conspiracy; but from the peculiar circumstances of the case, it is
clear that this authority cannot be used beyond the class of cases
to which it belongs."
3 F. Wharton, Criminal Law § 2321, p. 78 (6th ed. 1868).
[
Footnote 13]
As previously noted, the general rule in the early common law
was that the conspiracy merged with the felony upon consummation of
the latter. Thus, an indictment that charged conspiracy in terms
indicating that the felony actually had been committed was
considered invalid.
See H. Carson, The Law of Criminal
Conspiracies and Agreements as Found in the American Cases,
published in R. Wright, The Law of Criminal Conspiracies and
Agreements 191 (1887). When it was clear that the felony had been
perpetrated, Carson considered a conspiracy indictment to be
"futile."
Ibid.
Wharton's treatises likewise recognized the difficulty posed by
the concept of merger of the felony and the conspiracy to commit
that offense. The seventh edition of the treatise notes that "[t]he
technical rule of the old common law pleaders, that a misdemeanor
always sinks into a felony when the two meet" had been applied to
the law of conspiracy. 2 F. Wharton, Criminal Law § 2294, p. 637
(7th ed. 1874). Wharton was more critical of this concept than
Carson, however, observing that the rule was one "with very little
substantial reason."
Ibid. He discussed approvingly
English and American cases that were beginning to reflect a narrow
view of the merger doctrine in the law of conspiracy, and to
indicate that the conspiracy might be pursued as an independent
offense even when the felony was committed.
Id. at
638-639. Wharton subsequently indicated that the proper sentencing
disposition in a case of conviction for both offenses was to
apportion the penalty between the two. 2 F. Wharton, Criminal Law §
1344, p. 198 (8th ed. 1880), quoting from
R. v. Button, 11
Q.B. (Ad. & E., N. S.) *929, 116 Eng.Rep. 720 (1848).
[
Footnote 14]
In a proper case, this Court's opinion in
Ashe v.
Swenson, 397 U. S. 436
(1970), can afford protection against reprosecution following
acquittal, a concern expressed by the Pennsylvania Supreme Court in
Shannon.
[
Footnote 15]
An exception to the Rule generally is thought to apply in the
case in which the conspiracy involves more persons than are
required for commission of the substantive offense. For example,
while the two persons who commit adultery cannot normally be
prosecuted both for that offense and for conspiracy to commit it,
the third-party exception would permit the conspiracy charge where
a "matchmaker" -- the third party -- had conspired with the
principals to encourage commission of the substantive offense.
See 1 R. Anderson, Wharton's Criminal Law and Procedure §
89, p. 193 (1957);
State v. Clemenson, 123 Iowa 524, 526,
99 N.W. 139 (1904). The rationale supporting this exception appears
to be that the addition of a third party enhances the dangers
presented by the crime. Thus, it is thought that the legislature
would not have intended to preclude punishment for a combination of
greater dimension than that required to commit the substantive
offense.
See Comment, Gambling Under the Organized Crime
Control Act: Wharton's Rule and the Odds on Conspiracy, 59 Iowa
L.Rev. 452, 460 (1973); Note, Developments in the Law,
supra, n 10, at
956.
Our determination that Congress authorized prosecution and
conviction for both offenses in all cases,
see
420 U. S.
infra, makes it unnecessary to decide whether the
exception to Wharton's Rule could properly be applied to
conspiracies to violate § 1955 involving more than five persons.
See supra at
420 U. S. 775.
We note, however, that the statute and its legislative history seem
to suggest that it could not. By its terms, § 1955 reaches gambling
activities involving "five or more persons." Moreover, the
legislative history of the statute indicates that Congress assumed
that it would generally be applied in cases in which more than the
statutory minimum number were involved.
See n 21,
infra. It thus would seem
anomalous to conclude that Congress intended the substantive
offense to subsume the conspiracy in one case, but not in the
other.
[
Footnote 16]
Commentators who have examined the Rule have identified its
major underlying premise to be that agreements to commit crimes to
which it applies do not seem to present the distinct dangers that
the law of conspiracy seeks to avert.
See Comment,
Gambling Under the Organized Crime Control Act,
supra,
n 15, at 456; Note,
Developments in the Law,
supra, n 10, at 955. The same consideration is also apparent
in
Shannon v. Commonwealth, 14 Pa. at 227. As Chief
Justice Gibson there noted:
"If confederacy constituted conspiracy, without regard to the
quality of the act to be done, a party might incur the guilt of it
by having agreed to be the passive subject of a battery, which did
not involve him in a breach of the peace. By such preconcerted
encounters, it has been said, a reputation for prowess is sometimes
purchased by gentlemen of the fancy. In the same way there might be
a conspiracy to commit suicide by drowning or hanging in concert,
according to the method of the Parisian roues, though no one could
be indicted if the felony were committed. It may be said such
conspiracies are ridiculous and improbable. But nothing is more
ridiculous than a conspiracy to commit adultery -- were we not
bound to treat it with becoming gravity, it might provoke a smile
-- or more improbable than that the parties would deliberately
postpone an opportunity to appease the most unruly of their
appetites. These are subtle premises for a legal conclusion, but
their subtlety is in the analysis of the principle, not in the
manner of treating it."
[
Footnote 17]
The test articulated in
Blockburger v. United States,
284 U. S. 299
(1932), serves a generally similar function of identifying
congressional intent to impose separate sanctions for multiple
offenses arising in the course of a single act or transaction. In
determining whether separate punishment might be imposed,
Blockburger requires that courts examine the offenses to
ascertain "whether each provision requires proof of a fact which
the other does not."
Id. at
284 U. S. 304.
As
Blockburger and other decisions applying its principle
reveal,
see, e.g., Gore v. United States, 357 U.
S. 386 (1958);
American Tobacco Co. v. United
States, 328 U. S. 781,
328 U. S.
788-789 (1946), the Court's application of the test
focuses on the statutory elements of the offense. If each requires
proof of a fact that the other does not, the
Blockburger
test is satisfied, notwithstanding a substantial overlap in the
proof offered to establish the crimes.
See Gore v. United
States, supra. We think that the
Blockburger test
would be satisfied in this case. The essence of the crime of
conspiracy is agreement,
see, e.g., Pereira v. United
States, 347 U.S. at
347 U. S. 11-12;
Braverman v. United States, 317 U. S.
49,
317 U. S. 53
(1942);
Morton v. California, 291 U. S.
82,
291 U. S. 92-93
(1934), an element not contained in the statutory definition of the
§ 1955 offense. In a similar fashion, proof of violation of § 1956
requires establishment of a fact not required for conviction for
conspiracy to violate that statute. To establish violation of §
1955 the prosecution must prove that the defendants actually did
"conduct, finance, manage, supervise, direct, or own all or part of
an illegal gambling business." § 1955(a). The overt act requirement
in the conspiracy statute can be satisfied much more easily.
Indeed, the act can be innocent in nature, provided it furthers the
purpose of the conspiracy.
See Yates v. United States,
354 U. S. 298,
354 U. S.
333-334 (1957);
Braverman, supra.
[
Footnote 18]
We do not consider initial dismissal of the conspiracy charge to
be required in such a case. When both charges are considered at a
single trial, the real problem is the avoidance of dual punishment.
This problem is analogous to that presented by the threat of
conviction for a greater and a lesser included offense, and should
be treated in a similar manner. 8 J. Moore, Federal Practice �
31.03 (2d ed.1975).
Cf. Comment, Gambling Under the
Organized Crime Control Act,
supra, 420 U.
S. 15, at 461-464.
[
Footnote 19]
Additionally, Title IX, codified in 18 U.S.C. §§ 1961-1968,
seeks to prevent the infiltration of legitimate business operations
affecting interstate commerce by individuals who have obtained
investment capital from a pattern of racketeering activity.
See § 1962. Title IX provides penalties for such conduct,
§ 1963, and also affords civil remedies for its prevention and
correction, including provisions permitting United States district
courts to require divestiture of interests so acquired and impose
reasonable restrictions on the future investment activities of
persons identified by the statute. § 1964.
[
Footnote 20]
"Law enforcement officials agree almost unanimously that
gambling is the greatest source of revenue for organized crime. It
ranges from lotteries, such as 'numbers' . . . to off-track horse
betting. . . . In large cities where organized criminal groups
exist, very few of the gambling operators are independent of a
large organization. . . ."
"Most large-city gambling is established or controlled by
organized crime members through elaborate hierarchies."
"
* * * *"
"There is no accurate way of ascertaining organized crime's
gross revenue from gambling in the United States. Estimates of the
annual intake have varied from $7 to $50 billion. Legal betting at
racetracks reaches a gross annual figure of almost $5 billion, and
most enforcement officials believe that illegal wagering on horse
races, lotteries, and sporting events totals at least $20 billion
each year. Analysis of organized criminal betting operations
indicates that the profit is as high as one-third of gross revenue
-- or $6 to $7 billion each year. While the Commission cannot judge
the accuracy of these figures, even the most conservative estimates
place substantial capital in the hands of organized crime
leaders."
Report of the President's Commission on Law Enforcement and
Administration of Justice, The Challenge of Crime in a Free Society
188-189 (1967).
[
Footnote 21]
The Senate initially contemplated a more sweeping prohibition.
The Senate version of that provision declared it unlawful for
"two or more persons to participate in a scheme to obstruct the
enforcement of the criminal laws of a State or political
subdivision thereof, with the intent to facilitate an illegal
gambling business."
S. 30, 91st Cong., 1st Sess., § 802 (1969). Discussions in the
Senate hearings reveal that this language was intentionally chosen
to obtain the broadest possible coverage for that provision. It was
hoped that prohibiting "schemes", rather than "conspiracies," would
enable the prosecution to obtain convictions in cases in which they
might be unable to establish the requisite knowledge of the major
members of the enterprise required for a conspiracy conviction.
See Hearings on S. 30 before the Subcommittee on Criminal
Laws and Procedures of the Senate Committee on the Judiciary, 91st
Cong., 1st Sess., 397 (1969). The Senate version was criticized in
hearings before the House Judiciary Subcommittee, where it was
asserted that this language was too vague.
See Hearings on
S. 30 before Subcommittee No. 5 of the House Committee on the
Judiciary, 91st Cong., 2d Sess., ser. 27, p. 498 (1970). The bill
reported from the House Judiciary Committee prohibited
conspiracies, rather than schemes, and that version subsequently
was enacted into law.
[
Footnote 22]
Congress was aware that the imposition of this requirement would
have the practical effect of limiting federal criminal jurisdiction
to even larger gambling enterprises than those identified in §
1955.
"It is anticipated that cases in which this standard can be met
will ordinarily involve business-type gambling operations of
considerably greater magnitude than this definition would indicate,
. . . because it is usually possible to prove only a relatively
small proportion of the total operations of a gambling enterprise.
Thus, the legislation would, in practice, not apply to gambling
that is sporadic or of insignificant monetary proportions. It will
reach only those who prey systematically upon our citizens and
whose syndicated operations are so continuous and so substantial as
to be a matter of national concern."
S.Rep. No. 91-617, p. 73 (1969).
MR. JUSTICE DOUGLAS, dissenting.
The eight petitioners in this case were tried, along with other
codefendants, on a multiple count indictment alleging the
commission of various offenses in connection with gambling
activities. Petitioners were convicted both of participating in an
"illegal gambling business," 18 U.S.C. § 1955, and of conspiring to
commit that offense, 18 U.S.C. § 371. On both statutory and
constitutional
Page 420 U. S. 792
grounds, I would hold that the simultaneous convictions under
both statutes cannot stand.
I
In my view, the Double Jeopardy Clause forbids simultaneous
prosecution under §§ 1955 and 371. Wharton's Rule, in its original
formulation, was rooted in the double jeopardy concern of avoiding
multiple prosecutions.
Carter v. McClaughry, 183 U.
S. 365,
183 U. S.
394-395 (1902), and later cases [
Footnote 2/1] confine the double jeopardy protection to
prohibiting cumulative punishment of offenses that are absolutely
identical, but I would not extend those cases so as to permit both
convictions in this case to stand.
The evidence against petitioners consisted largely of
conversations that involved gambling transactions. The Government's
theory of the case was that petitioner Iannelli was the central
figure in the enterprise who, through other employees or agents,
received bets, arranged payoffs, and parceled out commissions. The
evidence established, in the Government's view, "syndicated
gambling," the kind of activity proscribed by § 1955. The very same
evidence was relied upon to establish the conspiracy -- a
conspiracy, apparently, enduring as long as the substantive offense
continued, and provable by the same acts that established the
violation of § 1955. Thus, the very same transactions among the
defendants gave rise to criminal liability under both statutes.
Under these circumstances, I would require the prosecutor to
choose between § 371 and § 1955 as the instrument for criminal
punishment.
See my dissenting opinion in
Gore v.
United States, 357 U. S. 386,
357 U. S.
395-397 (1958), where the Government brought three
charges based on
Page 420 U. S. 793
a single sale of narcotics. To permit this kind of multiple
prosecution is to place in the hands of the Government an arbitrary
power to increase punishment. Here, as in
Gore, I would
require the prosecutor to observe the "
"fundamental rule of law
that out of the same facts a series of charges shall not be
preferred,"'" id. at 357 U. S. 396,
quoting Reina v. Elrington, 9 Cox C.C. 86, 90, 1 B&S
688, 696 (1861).
II
Apart from my views of the Double Jeopardy Clause, I would
reverse on the additional ground that Congress did not intend to
permit simultaneous convictions under §§ 371 and 1955 for the same
acts. The rule that a conspiracy remains separable from the
completed crime, thus permitting simultaneous conviction for both,
rests on the assumption that the act of conspiring presents special
dangers the Legislature did not address in defining the substantive
crime and that are not adequately checked by its prosecution.
[
Footnote 2/2] But the rule of
separability is one of construction only, an aid to discerning
legislative intent. Wharton's Rule teaches that, where the
substantive crime itself is aimed at the evils traditionally
addressed by the law of conspiracy, separability should not be
found unless the clearest legislative statement demands it. In my
view, this case fits the rationale of Wharton's Rule, and there is
no legislative
Page 420 U. S. 794
statement justifying the inference that Congress intended to
permit multiple convictions.
Title 18 U.S.C. § 1955, which creates the substantive offense,
is aimed at a particular form of concerted activity. The provision
was added by the Organized Crime Control Act of 1970, Pub.L. 9152,
84 Stat. 922. This statute, as its title indicates, was directed at
criminal activity carried out by large organizations, described by
Congress as hierarchical in structure and as having their own
system of law and independent enforcement institutions. [
Footnote 2/3] Most of the Act was devoted
to altering the powers and procedures of law enforcement
institutions to deal with existing offenses. [
Footnote 2/4] Only a few provisions added new
prohibitions of primary conduct. Among these was Title VIII, which
appears under the heading "Syndicated Gambling." Section 1955,
included in Title VIII, prohibits participation in an "illegal
gambling business," which is defined as one involving at least five
persons who "conduct, finance, manage, supervise, direct, or own
all or part of" the enterprise. Congress thought that federal law
enforcement resources would be used to combat large enterprises,
"so continuous and so substantial as to be a matter of national
concern." [
Footnote 2/5]
Conviction under § 1955 satisfies, in my view, the social
concerns that punishment for conspiracy is supposed to address. The
provision was aimed not at the single unlawful wager, but at
"syndicated gambling." Congress viewed this activity as harmful
because, on such a scale,
Page 420 U. S. 795
it was thought to facilitate other forms of illicit activity,
one of the reasons traditionally advanced for the separate
prosecution of conspiracies. Where § 1955 has been violated, the
elements of conspiracy will almost invariably be found. The
enterprises to which Congress was referring in § 1955 cannot, as a
practical matter, be created and perpetuated without the agreement
and coordination that characterize conspiracy. Section 1955 is thus
most sensibly viewed as a statute directed at conspiracy in a
particular context.
All this the majority seems to concede when it acknowledges a
"presumption that the two [crimes] merge when the substantive
offense is proved."
Ante at
420 U. S. 786.
But the majority concludes that simultaneous conviction is
authorized because it is not "explicitly excluded."
Ante
at
420 U. S. 789.
The majority thus implicitly concedes that the statute is silent on
the matter of simultaneous conviction. [
Footnote 2/6] To infer from silence an intention to
permit multiple punishment is, I think, a departure from the
"presupposition of our law to resolve doubts in the enforcement of
a penal code against the imposition of a harsher punishment,"
Bell v. United States, 349 U. S. 81,
349 U. S. 83
(1955). I would adhere to that principle, which is but a specific
application of the "ancient rule that a criminal statute is to be
strictly construed,"
Callanan v. United States,
364 U. S. 587,
364 U. S. 602
(1961) (STEWART, J., dissenting).
The majority suggests,
ante at
420 U. S. 784,
that § 371 may be
Page 420 U. S. 796
used to enhance the punishment for a § 1955 offense committed by
"owners and organizers" of the enterprise, leaving prosecution
under § 1955 alone for "lesser participants." But this is the
Court's suggestion, not that of Congress. Congress recognized that
syndicated operations would include persons having varying degrees
of authority, [
Footnote 2/7] and
set a maximum penalty accordingly.
Congress did address the matter of sentence enhancement in Title
X of the Act, codified in 18 U.S.C. §§ 3575-3578. These provisions
authorize augmented punishment, to a maximum of imprisonment for 25
years, for felonies committed by a "dangerous special offender," §
3575(b). Some of the procedural obstacles to sentence enhancement
under these provisions, and the constitutional questions raised
thereby, are now being litigated in the District Courts. [
Footnote 2/8] Nothing in Title X, however,
supports the majority's position. "Special offender," as defined in
§ 3575(e), includes a defendant convicted of a felony that was
committed in furtherance of a "conspiracy . . . to engage in a
pattern of conduct criminal under applicable laws of any
jurisdiction. . . ." The application of this language to a § 1955
conviction is not readily apparent. Though "pattern of criminal
conduct" is not defined in the statute, it is clear from the
legislative history that Congress was focusing on repeated
offenders. [
Footnote 2/9] An
enterprise proscribed by § 1955 will involve repeated transactions;
yet I have
Page 420 U. S. 797
doubt that Congress intended that proof of a § 1955 offense
alone would constitute a "pattern."
In any case, the special procedures of Title X are at odds with
any notion that § 371 would be used to enhance punishment. Sentence
may be increased under § 3575 only if the judge makes special
findings that the defendant is "dangerous," § 3575(f). And §
3575(a) requires that "[i]n no case shall the fact that the
defendant is alleged to be a dangerous special offender be an issue
upon the trial . . . [or] be disclosed to the jury. . . ." The
trial judge must state the reasons for enhancing sentence, §
3575(b), and there are provisions for appellate review, § 3576.
Among the purposes of Title X was
"improving the rationality, consistency, and effectiveness of
sentencing by testing concepts of limiting and guiding sentencing
discretion, [
Footnote 2/10]"
a purpose undercut by authorizing the prosecutor to add charges
under § 371. If, as the majority says, the statute is a "carefully
crafted piece of legislation,"
ante at
420 U. S. 789,
we should leave the differentiation of offenders to the scheme
Congress expressly created.
Conspiracy, if charged in a § 1955 prosecution, should be
charged as a preparatory offense that merges with the completed
crime, and considered by the jury only if it first acquits the
defendant of the § 1955 charge. The trial judge did allude to this
use of the conspiracy charge, [
Footnote 2/11] and he did suggest that the jury might
defer
Page 420 U. S. 798
consideration of the conspiracy count until after deliberation
of the § 1955 charge. But that was only a suggestion; the
instructions permitted convictions on both charges. The error
cannot be corrected merely by vacating the sentences on the
conspiracy count; it requires a new trial. We so held in
Milanovich v. United States, 365 U.
S. 551 (1961), where the trial judge had permitted the
jury to convict the defendant both of larceny and of receiving
stolen goods. We held that simultaneous conviction of both offenses
was impermissible, and that the proper remedy was a new trial:
"[T]here is no way of knowing whether a properly instructed jury
would have found the wife guilty of larceny or of receiving (or,
conceivably, of neither)."
Id. at
365 U. S.
555.
I would accordingly reverse these convictions.
MR. JUSTICE STEWART and MR. JUSTICE MARSHALL join Part II of
this opinion.
[
Footnote 2/1]
E.g., Morgan v. Devine, 237 U.
S. 632,
237 U. S. 641
(1915);
Pinkerton v. United States, 328 U.
S. 640,
328 U. S.
643-644 (1916);
Gore v. United States,
357 U. S. 386
(1958).
[
Footnote 2/2]
See United States v. Rabinowich, 238 U. S.
78,
238 U. S. 88
(1915):
"For two or more to confederate and combine together to commit
or cause to be committed a breach of the criminal laws is an
offense of the gravest character, sometimes quite outweighing, in
injury to the public, the mere commission of the contemplated
crime. It involves deliberate plotting to subvert the laws,
educating and preparing the conspirators for further and habitual
criminal practices. And it is characterized by secrecy, rendering
it difficult of detection, requiring more time for its discovery,
and adding to the importance of punishing it when discovered."
[
Footnote 2/3]
See S.Rep. No. 91-617, pp. 361 (1969) (hereinafter
Senate Report).
[
Footnote 2/4]
Title I authorized the convening of special grand juries, and
Titles II through VI were aimed at enhancing the prosecutors
ability to obtain testimony of witnesses. Title X provides for the
enhancement of sentences of designated offender.
[
Footnote 2/5]
Senate Report 73.
[
Footnote 2/6]
By the application of 18 U.S.C. § 1511, a defendant may be found
guilty both of violating § 1955 and of conspiracy to "obstruct the
enforcement of the criminal laws of a State or political
subdivision thereof, with the intent to facilitate an illegal
gambling business." An essential element of the narrowly defined §
1511 conspiracy is participation of an "official or employee" of a
governmental unit. That requirement is not satisfied here, and thus
§ 1511 is inapplicable.
[
Footnote 2/7]
See Senate Report 441; H.R.Rep. No. 91-1549, p. 53
(1970).
[
Footnote 2/8]
See United States v. Kelly, 384 F.
Supp. 1394 (WD MO.1974);
United States v.
Duardi, 384 F.
Supp. 874 (WD MO.1974);
United States v.
Edwards, 379 F.
Supp. 617 (MD Fla.1974).
[
Footnote 2/9]
Repeated offenders included both those having prior convictions
and those who, by virtue of particular positions in a criminal
organization, had committed previously undetected crimes. Senate
Report 87-88; H.R.Rep. No. 91-1549,
supra, at 61-62.
[
Footnote 2/10]
Senate Report 83.
[
Footnote 2/11]
The trial judge explained:
"It is theoretically possible that two people could conspire to
form a business of five [participants] or more. It would be
theoretically possible, too, that, if the business were underway
and only reached a total of four, . . . there would be no violation
of Section 1955, but there still could be a conspiracy charge on
the part of those who planned the agreement to ultimately make a
business of five, even though they never actually reached
five."
Tr. 2505.
MR. JUSTICE BRENNAN, dissenting.
In
Bell v. United States, 349 U. S.
81 (1955), this Court held that, in criminal cases,
"[w]hen Congress leaves to the Judiciary the task of imputing to
Congress an undeclared will, the ambiguity should be resolved in
favor of lenity."
Id. at
349 U. S. 83. I
agree with MR. JUSTICE DOUGLAS that "[§] 1955 is . . . most
sensibly viewed as a statute directed at conspiracy in a particular
context,"
ante at
420 U. S. 795, and that the statute is at best silent on
whether punishment for both the substantive crime and conspiracy
was intended. In this situation, I would invoke
Bell's
rule of lenity. I therefore dissent.