IANNELLI v. UNITED STATES

Transcript: 

Argument of James E. Mclaughlin

Chief Justice Warren E. Burger: We'll hear arguments next in 73-64, Iannelli against the United States.

Mr. James E. McLaughlin, I think you may safely proceed now.

Mr. James E. Mclaughlin: Mr. Chief Justice, and may it please the Court.

This case involves the issue of whether the petitioners here were properly indicted for and convicted of conspiracy to violate 18 U.S.C. 1955 when they were also indicted for and convicted for the substantive violation of 18 U.S.C.1955.

The eight petitioners here were indicted in a multiple count indictment with a number of other un-indicted co-conspirators and charged among other things.

First, with conspiring to violate Section 1955 and then charged with a substantive violation of 1955.

The petitioner Iannelli was also indicted for alleged violations of 18 U.S.C. 1302 and 1341.

All of the petitioners here were convicted of both the substantive violation of 1955 and of conspiracy.

All were sentenced on both counts and in this case is before the Court here, each of the defendants, aside from Mr. Iannelli was given an additional two years probation on the conspiracy conviction.

Now, simply stated question before the Court is whether the application of Wharton's Rule in this case bars the dual conviction and dual sentencing of these petitioners.

Wharton's Rule is not at all a new rule. However of course, it was -- when it was initially applied some 125 years ago, 130 years ago, it was mostly applied in cases involving dueling and crimes of adultery, that sort of thing.

Now, dueling is not a very popular --

Chief Justice Warren E. Burger: It wasn't a very wide ranging rule --

Mr. James E. Mclaughlin: No, no your honor, it was not.

Dueling has somewhat fallen out of fashion and adultery is seldom prosecuted these days, so it really hasn't -- hasn't been applied as often with perhaps the two of them, but I don't think Professor Wharton ever really contemplated the Congressional scheme that Congress had in mind in Section 1955.

I think he would've -- have felt that his rule would have applied.

But as you point out, Mr. Chief Justice, it was not a widely applied rule but it was a sound rule and we contended, it is a sound rule, and the gist of the rule is simply that when an offense requires concerted action or plurality of agents that Wharton speaks of it, then the crime of conspiracy cannot be added to the substantive crime.

Now in 1955, the statute clearly states that in order to vile a convicted, five or more persons must act in concert, own, conduct, finance, manage an illegal gambling business.

The conspiracy statute of course, requires that two or more persons agree to do an illegal act.

Both statutes speak in terms of minimums, not maximums.

Now, Wharton's Rule has never been directly applied by this Court but it has been adverted to in Gebardi v. United States which we cite in our brief, and of course it has been adverted to in a number of Circuit Court cases.

Now, in the application of Wharton's Rule in 1955, the circuits are not in agreement.

They're in conflict and I assume that this is one of the fundamental reasons why we're here.

The Solicitor General did not oppose our petition for certiorari.

The Seventh Circuit in United States v. Hunter has held that Wharton's Rule clearly applies.

The Second Circuit, which was the first circuit to consider the problem, has held that it did not.

The Third Circuit followed the Second, and the Fourth and the Fifth sort of went off on their own but also following the Second.

Now, we feel that the reasoning in Hunter is in fact the proper reasoning because they state there that there is no element or an early ingredient in the conspiracy which is not present in the completed crime, and we think that's what Wharton's Rule was all about.

It requires a minimum of five or more persons to own, conduct, finance or manage an illegal gambling enterprise to constitute the substantive violation of 1955. Now, we contend that when those five persons own, conduct, manage or finance an illegal gambling enterprise, they are in effect agreeing to do so and conspiring to do so.

Now, the government takes the position and it in part is proper that if the substantive crime can be successfully maintained by a single individual, then Wharton's Rule in effect has no application.

And in aide of that proposition, the government cites a hypothetical situation at page 28 of its brief in which it indicates that it would be possible for a single person to be convicted of the substantive violation of 1955 and the situation where a single bookmaker hires ten high school students who are deluded into thinking that they're involved in a market research product and do not realize that they're in the bookmaking operation.

Well unfortunately, I don't represent ten high school students, and ten high school students weren't involved in the case that brings us here.

That hypothetical situation as Professor Wright points out in our reply brief might be very interesting in a law school classroom, but this is a real case and this kind of cases involve real people.

Justice William H. Rehnquist: But then, the rule you're contending for Mr. McLaughlin would be a fact, a case-by-case application rather than a flat rule one way or the other?

Mr. James E. Mclaughlin: Yes, I think so, Mr. Justice Rehnquist.

I think perhaps it would have to be that way but I'm simply trying to point out that the hypothetical posed by the government, is just so hypothetical that it has no basis in reality at all.

Justice William H. Rehnquist: Well, I took the government's point to be that if they could demonstrate some instances in which Wharton's Rule wouldn't apply in the administration of the statute, then it shouldn't apply at all.

Mr. James E. Mclaughlin: Well, I think that's the position they take but the position we take is that they would have to demonstrate some practical, possible hypothetical -- in point of actual practice, any bookmaker who employed ten high school students in an aide or in an effort to operate a gambling business probably wouldn't even be mentally competent to stay on trial.

Chief Justice Warren E. Burger: Now, if you convert that into some dangerous drugs, you might have a more commercially feasible illustration, might you not?

Mr. James E. Mclaughlin: Yes, well now, traditionally now, for instance in the drug cases, Wharton's Rule does not apply because a single person can clearly be involved in the sale of drugs or transfer of drugs.

But here, the statute specifically requires a minimum of five.

Now, we just said the hypothetical posed by the government is just so unreal that it's not demonstration an instance where a single person could do it, and the actual, practical fact of the matter is that a single person can't do it and there has never been a single case brought under 1955 and there have been many, many cases brought under 1955 where a single person was charged with a substantive offense.

Throughout the government's argument, and this of course is a two-fold argument, one, we contend that Wharton's Rule in fact does apply and it applies in two ways in this case.

One, it bars dual punishment and two, it in fact requires a new trial in this case.

Now, throughout the government's argument, there is almost implicit in their argument and in their brief, a tacit admission that probably there is something wrong about the concept of dual punishment in this area, and they keep saying,

And I think the government senses, as certainly we do, that there is something definitely offensive about the concept of dual punishment in this area.

I think perhaps even more graphically --

Justice Potter Stewart: Well, I gather that the differences with maybe our constitutional source.

I don't see that -- you haven't suggested that Wharton's Rule has a constitutional source.

The government seems to feel it does.

Mr. James E. Mclaughlin: Now, I haven's suggested that, no.

I --

Justice Potter Stewart: A double jeopardy source.

Mr. James E. Mclaughlin: It verges on that.(Voice Overlap)

Justice Potter Stewart: You don't argue with that?

Mr. James E. Mclaughlin: No.

I don't think I have -- I don't think I have to go that far.

Justice Potter Stewart: Well, you were asking us to apply Wharton's Rule just as a matter of supervisory value or ?

Mr. James E. Mclaughlin: Well yes, and as a matter of -- there is a conflict in the circuits and the Solicitor General recognizes this conflict and recognizes in his memorandum in response to our petition that the problem is a recurring one and is of considerable importance.

And it is of great importance because even more graphically than in our case, the problem of dual punishment is demonstrated in the case of Grosso v. United States at 73-1412 which petition is here in this Court and is being held pending the action of the Court in this case, and I happen to be counsel in that case, too.

And in that case, the defendants were given the maximum sentences -- the one defendant was given a maximum sentence, consecutive sentences for the conspiracy and the substantive trial, so that there -- so that in that petition, it's very graphically demonstrated, you can end up with ten years instead of five.

Mr. James E. Mclaughlin: Now, as I say, I think the government almost concedes that there is something offensive about this idea of dual punishment but they take the position of course that there is no, in this case, no trial should be required because the Court can simply just straighten everything out by straightening out the concept of the punishment.

Justice Potter Stewart: Is it your contention, Mr. McLaughlin, that charges of conspiracy and of the substantive offense cannot be brought or that the jury must be instructed that they cannot find guilt of both even if they are brought?

Mr. James E. Mclaughlin: That is not our position that they cannot be brought because in this particular case in Iannelli, there were two other substantive offenses charged and the conspiracy related to those as well.

So it would have been clearly improper for the District Court even though we asked him to do so and perhaps we improperly asked him to do so that he was not that easily misled.

He refused to do so prior to trial because he said it was untimely.

It's our position that if the conspiracy of Wharton's Rule applies and conspiracy is not a punishable offense, then it should not be submitted to the jury if that's all there is, that is the conspiracy and the 1955.

Justice William J. Brennan: Now, I'm not sure I follow.

You do concede, as I understand your answer now.

Tell me if I'm wrong that a person or necessarily two or more persons can be charged with conspiracy as well as with the commission of the substantive offense at the same trial.

But that the jury must be instructed that they cannot find them guilty of both, is that it?

Mr. James E. Mclaughlin: I don't think the jury should be instructed on conspiracy at all.

I think at the point when the government rests and the case is ready for charge.

If the Court has determined that the plaintiffs were not entitled to a direct verdict, he should not submit that the conspiracy to the jury at all, he should just submit the substantive offense.

Justice Potter Stewart: You could have, of course, just to conspiracy case in the case where the gambling operation was never in fact set up.

Mr. James E. Mclaughlin: That's --

Justice Potter Stewart: You can have a conspiracy plus an overt act and --

Mr. James E. Mclaughlin: That's possible.

Justice Potter Stewart: But frustration of the object of the conspiracy would always (Voice Overlap) and that you could have guilty -- have people guilty of conspiracy.

Mr. James E. Mclaughlin: That's right, but the Court can make that determination at that time I think and he doesn't have to submit it.

What we're objecting to and the reason we think that we're entitled another trial is that if you can't meet out dual punishment for the conspiracy, then why is the jury permitted to consider that you may have committed two crimes when in fact, only one is punishable.

Now, it's giving the government two targets when they should only have one.

Justice Potter Stewart: Well, I still don't know that I understand your answer to my question.

Maybe my question isn't clear.

But as I understand your answer, you do not contend that the prosecutions cannot charge these people with both the conspiracy and with the substantive offense.

Mr. James E. Mclaughlin: That's correct.

Justice Potter Stewart: You concede that.

Mr. James E. Mclaughlin: That's correct, Mr. Chief.

Justice Potter Stewart: Alright, then let's assume that the proof at the trial shows that there was a conspiracy and that there was a commission of the substantive offense by five or more because five or more people were engaged in it.

I don't mean there's evidence in rebuttal of that, so there's enough to go to the jury.

Now, does the trial judge have any duty in your submission to instruct the jury that they may not find the defendants guilty of both?

Mr. James E. Mclaughlin: Yes, that's at a minimum.

Justice Potter Stewart: Well, what is your --

Mr. James E. Mclaughlin: Frankly, if he has determined that there is sufficient evidence --

Justice Potter Stewart: Of both.

Mr. James E. Mclaughlin: Of both, then I do not think that he should submit both to the jury.

Justice Potter Stewart: Which one must he eliminate?

Mr. James E. Mclaughlin: I would think that he would submit the substantive offense because it carries the more vigorous penalty.

Justice Potter Stewart: That's not a very defendant minded answer.

Mr. James E. Mclaughlin: No, it's not but I think that that's probably a more palatable choice for the District Court because I think that they probably would feel that the more serious charge would be the one that should be submitted.

Justice Potter Stewart: The conspiracy is a pretty serious charge.

Generally because, it has often been considered to be more serious than the substantive offense.

Mr. James E. Mclaughlin: Right.

Justice Potter Stewart: This Court has often said so..

Mr. James E. Mclaughlin: But in terms of penalty, Congress has elected to make the substantive offense of the more serious crime.

Justice Potter Stewart: Well then, would you answer my question.

It's the duty of the trial judge and his instructions to the jury assuming people charged with both conspiracy and with the substantive offense assume sufficient evidence of both to go to the jury.

Now, what is the trial Court's or trial judge's duty under your submission under the Wharton Rule as to his instructions to the jury?

Or is it his duty to dismiss at the end of the prosecution (Voice Overlap)one or both of the charges?

Mr. James E. Mclaughlin: We feel that --

Justice Potter Stewart: There is always one.

Mr. James E. Mclaughlin: To dismiss the conspiracy.

Justice Potter Stewart: Why?

Mr. James E. Mclaughlin: Because the conspiracy is an integral part of the substantive offense.

Without the conspiracy, the substantive offense requires a conspiracy.

Justice Potter Stewart: Yes, but the conspiracy doesn't always result in the substantive offense and the jury might or might not reject the incriminating evidence with respect to the substantive offense.

It might hold if both went to the jury that there was a conspiracy but that there was not a substantive offense, and shouldn't the jury be afraid as to so hold?(Voice Overlap)

Would both therefore go to the jury?

Mr. James E. Mclaughlin: Well, then perhaps maybe they should, Mr. Justice Stewart.

But at that point, then the Court should clearly instruct the jury that they can't find them both.

On this case of course, the jury was instructed just the opposite.

Justice Potter Stewart: And I didn't know if that was your position or if it was your position that in the event that there were a finding of guilt as to both, then it became incumbent upon the District Judge to do something about it.

Mr. James E. Mclaughlin: No, as a matter, I think that's totally the wrong approach to it, what you portray (Voice Overlap).

Justice Potter Stewart: Well, what is your --

Mr. James E. Mclaughlin: I think he has to cure the matter by his charge, the minimum, before it goes to the jury but not wait until (Voice Overlap)

Justice Potter Stewart: And say what -- (Voice Overlap) by his charge.

Mr. James E. Mclaughlin: That they may not find and the defendant's guilty of both offenses.

If you're going to give them the election where you're going to submit both the conspiracy and the substantive offense, I think he should charge then that if they find the defendants guilty of the substantive offense, they should not consider the conspiracy or should find them not guilty of the conspiracy.

Justice Potter Stewart: And the instruction should be that way rather that you can't find them guilty of both.

You'd have to say if you find them guilty of the substantive offense, then you must what, find him not guilty of the conspiracy --

Mr. James E. Mclaughlin: Not guilty --

Justice Potter Stewart: Or not consider --

Mr. James E. Mclaughlin: Or not consider it.

Really, it would be foolish to have them consider it only to find them not guilty.

I think it's not considered at all.

Justice Potter Stewart: And only in with the instruction be only if you find him not guilty of the substantive offense are you permitted to consider the conspiracy charge?

Would that be the instruction in your submission?

Mr. James E. Mclaughlin: Yes, yes Mr. Justice Stewart, I believe it would.

I believe it would.

But if I had my brothers advice the district (Voice Overlap) --

Justice Potter Stewart: Well, I want to know what your submission is here, that's all.

Mr. James E. Mclaughlin: Well, what you said is correct.

You understand it and we understand each other.

Chief Justice Warren E. Burger: Okay.

On your thesis, ten men -- or then men and women -- could not engage in a conspiracy and have it developed that only five of them were participants in this substantive offense.

The two you said are all bound together.

You can't separate them.

Mr. James E. Mclaughlin: Well -- yes, they are bound together.

I can't really conceive of a practical situation.

I can't conceive of any practical situation where the question you posed would occur in a gambling scenario.

Chief Justice Warren E. Burger: And then what you're saying is that there can't be any offensive conspiracy to commit the offense?

Mr. James E. Mclaughlin: Really, that's what I'm --

Chief Justice Warren E. Burger: You must consummate it in order to have any criminal act.

Mr. James E. Mclaughlin: That's right, because the statute requires that the five or more people actually be in operation.

In other words, they can't be prosecuted unless they have gotten the thing off the ground.

The statute doesn't speak in terms of theoretical gambling operations.

It speaks of actual ones that have attained a certain plateau of economics of success and have operated for 30 days or more.

So that the conspiracy is complete when you have enough to the lay the substantive charge.

You see, under the government's theory, they sort of think that these people sort of drift in to these things.

Gambling enterprises don't operate by drafting employees.

They only have voluntary enlistments and the people that enlist in these operations understand what they're doing.

They aren't high school kids who think they're doing market research because this situation wouldn't even be prosecuted because they'd never be successful enough.

In the actual, real world of bookmaking, this conspiracy would be consummative when the substantive offense is consummated.

So actually what I'm saying is that the conspiracy really doesn't -- it's such an integral part of the substantive offense; it really doesn't exist.

And what I'm also saying is of course that in view of this substantive statute and in view of the fact that it requires every ingredient of a conspiracy, then we feel that Congress and the Court should not count this dual punishment.

We don't think that these petitioners should be punished twice for the same crime, and we feel that here they have been punished twice for the same crime.

Now, I would like --

Chief Justice Warren E. Burger: In your submission in response to Mr. Justice Stewart, do I understand you correctly to say that if both offenses are submitted to the jury, the jury can take its choice but they must -- they're mutually exclusive.

Mr. James E. Mclaughlin: They're mutually exclusive.

As I said that certainly as a minimum, I would feel that the District Court would have to tell the jury that they may not find the defendant guilty of both (Voice Overlap) substantive offense.

Then they must disregard -- not regard the conspiracy at all.

Justice Potter Stewart: However that they're not necessarily mutually exclusive, that there could be a conspiracy without any evidence at all of the element commission of the substantive offense.

Mr. James E. Mclaughlin: That's a hypothetical possibility, Mr. Justice.

Justice Potter Stewart: Only hypothetical.

There may be no reported cases but it certainly not an Alice in Wonderland idea that people can plan to set up a gambling operation and then by reasons of death or illness or competition or various other reasons, it can be frustrating --

Mr. James E. Mclaughlin: I would --

Justice Potter Stewart: There would be a conspiracy without a substantive offense.

Mr. James E. Mclaughlin: I would certainly concede that it is possible.

The five persons could agree and say, and make one phone call to another fellow and say,

And that really is a conspiracy.

Chief Justice Warren E. Burger: If I follow you, that's a different answer from the one you gave me at the moment --

Mr. James E. Mclaughlin: But I don't think it's -- I don't think it's a probable situation and in the instance where you have the substantive offense and the Court is satisfied that there is sufficient evidence to submit the substantive offense to the jury, then clearly there is a conspiracy, too, because the substantive offense requires one.

If in Mr. Justice Stewart's hypothesis there could be, as it could be a conspiracy without the substantive offense, the District Court shouldn't submit the question of the substantive offense to the jury because it's probably so clear that there's no evidence to support it that they shouldn't be permitted to consider it anyway.

Chief Justice Warren E. Burger: You're analogizing this in a sense of having a jury find a man guilty of a given crime and a lesser included defense under the same statute.

Mr. James E. Mclaughlin: It's somewhat similar, yes, Your Honor.

I think I have a few minutes left, I'll save it.

Chief Justice Warren E. Burger: Very well.

Mr. Evans?

Argument of Mark L. Evans

Mr. Mark L. Evans: Mr. Chief Justice, and may it please the Court.

The government has four contentions in this case.

First, Wharton's Rule has no application at all to Section 1955.

Second, even if it does have application, this case comes within a standard exception to Wharton's Rule because there were more persons involved in the conspiracy in this case than the minimum number required to commit the substantive offense.

Justice Potter Stewart: Does that mean that if you had a case where there were exactly five people who conspired and who were -- who then carried out their conspiracy by conducting a gambling operation then Wharton's Rule would be applicable?

Mr. Mark L. Evans: Well in our contention --

Justice Potter Stewart: I mean just with respect to your point two?

Mr. Mark L. Evans: As to point two, that's right.

Third, when Wharton's Rule does apply, its effect is solely to prohibit double punishment for the conspiracy in the substantive offense.

It does not bar an indictment either alone or together with the substantive offense and it does not bar submitting both counts to the jury under proper instructions along the lines Mr. Justice Stewart was discussing with Mr. McLaughlin earlier.

Finally, even if Wharton's Rule applies to this case and does bar an indictment, petitioners still would not be entitled in this case to a new trial as Mr. McLaughlin suggested at point as an alternative disposition.

There would be no need for a new trial, all that would be necessary would be to vacate the sentences that were imposed on the conspiracy convictions.

And I'd like to start, if I may just by briefly addressing that final point because it can be taken with the assumption that everything that Mr. McLaughlin has said about Wharton's Rule's application to Section 1955 and to this case is true.

Now, he has suggested in his brief and he had alluded to it again at argument that a new trial would be necessary here apparently because the presence of the conspiracy character in the course of the trial and in the jury's deliberations has so tainted the jury's verdict on the substantive count that there must be a new trial to eliminate this taint.

As we understand the argument, if it rests upon the notion that in the absence of the conspiracy count, all the hearsay declarations that were admitted at this trial would have been excluded and they would not be admissible on a retrial only on the substantive account -- only on the substantive count.

We think this is wrong for several reasons.

First, as we show on our brief, the admissibility of hearsay declarations of co-conspirators does not depend upon the presence of an indictment -- of a conspiracy count in the indictment.

It depends only upon a showing by non-hearsay evidence that there was in fact a joint venture in crime of which the defendant was a member.

Justice Potter Stewart: This argument leads you right into Mr. McLaughlin's case, isn't it?

You're saying that they're the same.

Mr. Mark L. Evans: No, no, we're not saying they're the same.

We're saying that -- well, I'm not sure --

Justice Potter Stewart: You're saying that the substantive offense is basically the same because they support the same exceptions to the hearsay rule.

Mr. Mark L. Evans: Well, we're -- in a sense, if Wharton's Rule apply, and I'm here taking everything that he has said is given, if Wharton's Rule applies yes, there is inherent in the substantive offense the very conspiracy to which he objects that in terms of a subsequent -- in terms of separate counts --

Justice Potter Stewart: I see, you're beginning this argument by --

Mr. Mark L. Evans: I'm just beginning by accepting everything just to discuss only what should be done with this case if everything were accepted.

Justice Potter Stewart: I see.

Mr. Mark L. Evans: Now, even if for some reason the hearsay testimony would be inadmissible if there were only the substantive count at trial that the District Judge here contrary to the suggestion that Mr. McLaughlin's brief makes specifically instructed the jury that they could consider that hearsay testimony, those hearsay declarations only in connection with the conspiracy count on page 61 of the appendix.

He made a very elaborate effort to direct the jury's attention to the conspiracy count only last and he stated that,

That evidence, the hearsay evidence would not be admissible in proving guilt under the second count, the Section 1955 count, but it could be admissible under the circumstances I just enumerated with you in proving the guilt of conspiracy.

So even if for some reason the hearsay declarations could not be admitted, should not have been admitted in this trial, there's no reason to believe that the jury disregarded the explicit instruction disregarded with respect to the substantive count.

Our contention in essence is that there's been no taint attached to the substantive conviction, in this case, no reason to remand for a new trial on that count in any event.

The heart of this case is the question whether Wharton's Rule applies at all in the context of Section 1955, and before I address the statutory question, I think it would be helpful to outline our theory of Wharton's Rule.

We start with two principles, consistent principles we believe.

First, that a conspiracy ordinarily is separate and distinct from its substantive aim because each requires proof of a fact that the other does not.

For example, a conspiracy to commit a bank robbery requires proof of an agreement between the two robbers to commit the crime, but it does not require proof that robbery was actually consummated.

On the other hand, the substantive charge of bank robbery requires proof that the crime was consummated but not that there was any agreement to commit it.

And this Court has accordingly held in many cases that cumulative sentences may be imposed upon convictions for both the conspiracy and its substantive aim.

And that is so because a conspiracy is thought to pose dangers beyond those posed by the commission of the substantive offense itself.

An unlikened attempt for that reason, the conspiracy does not merge within the completed substantive offense.

Now, the second principle as I say that's consistent with this is basically an application of the Constitutional Protection against Double Jeopardy.

When one offense is necessarily included within another, a person may not be given cumulative sentences for a single act that violates both.

For example, assaulting a federal officer is necessarily included within the greater prime of assaulting a federal officer with the use of a deadly weapon.

It is impossible under any circumstances to commit the greater offense without also committing the lesser.

Justice William H. Rehnquist: What authority are you relying onto that proposition, that the double jeopardy forbids that?

Mr. Mark L. Evans: Well, inferring it from decisions of this Court, most particularly North Carolina against Pierce, in which the Court stated that -- and there may be others, too, that --

Justice Byron R. White: You seem to be making this trial as being straightforward application of the double jeopardy clause, but such that conviction of the greater offense by (Inaudible).

Mr. Mark L. Evans: That's right.

Oh, you're -- no.

Well, I'll cite some cases to support --

Justice Potter Stewart: Mr. Evans yes.

Mr. Mark L. Evans: Yes.

Well, there are several in the footnote there.

Now, in our --

Justice Byron R. White: Do you feel --

Mr. Mark L. Evans: We're looking for a constitutional source.

Unknown Speaker: (Inaudible) but do you put out in your brief the (Inaudible) double jeopardy.

Mr. Mark L. Evans: That's right, that's right.

It rests in our view upon --

Unknown Speaker: (Inaudible) for that, if you think you've seen (Inaudible) double jeopardy clause.

Mr. Mark L. Evans: This we think is the source of Wharton's Rule properly understood.

It's not broader, I mean in a sense we're -- we're giving it a constitutional footing so that it's scope can be appreciated.

Justice William H. Rehnquist: Did the Wharton think that when he evolved it?

Mr. Mark L. Evans: Well no, Wharton -- Wharton did not.

Wharton's Rule in my view is an anomaly.

It developed as we explained in our brief from what we view as a misreading of an 1850 Pennsylvania State Court decision.

There's no comparable rule in England, and the leading British commentator as I indicate in the brief thinks that the rule is unnecessarily subtle.

Well, we thought about it a great deal and we concluded that it has an application as part of the broader rules that we think would be applicable in the case of a lesser included offense and the greater offense.

We do think that the double jeopardy clause would bar an imposition of two punishments for assaulting a federal officer for example with a deadly weapon, and for the crime that necessarily was included within it, mainly the assault upon the officer.

Justice Byron R. White: Well, how about the adverse punishment for assault on a federal officer and punishment for assault with a deadly weapon?

And the former necessarily include the latter.

Would you say conviction for the included offense would bar prosecution for the greater?

Mr. Mark L. Evans: Well, we think that's -- it's --

Justice Byron R. White: Now, you say that --

Mr. Mark L. Evans: Yes, it's not obviously this case.

We're not -- this has no application to it.

We mentioned that only in passing.

Justice Byron R. White: You should draw that the case because assume the -- assume there's a conviction of conspiracy and then there's like the substantive offense.

The rule was the conviction for the included offense includes the section for a greater offense.

Mr. Mark L. Evans: Well, Mr. Justice White, I believe that we're inferring that rule from a combination of the cases we've cited but Waller is basically the case, as I recall it that was a conviction on a local ordinance that was as the Court stated that the offense was included within the --

Justice Byron R. White: Not really --

Chief Justice Warren E. Burger: Yeah, that's --

Mr. Mark L. Evans: Well, no --

Justice Byron R. White: This whole question of --

Justice Potter Stewart: Well, how about Blackledge against Perry last term?

Mr. Mark L. Evans: I'm not familiar with it.

Justice Potter Stewart: Well, that's pretty much on the --

Mr. Mark L. Evans: But in any event, I really don't think we have to struggle with this issue.

It's not really presented here.

We only mention it in passing to suggest the contours of what would be the rules with respect to lesser included offenses and greater offenses.

Chief Justice Warren E. Burger: Well of course, your friend was saying that this is analogous.

This case is analogous to a lesser included offense situation.

I take it you'd want to accept that.

Mr. Mark L. Evans: No, we do not --

Chief Justice Warren E. Burger: You seem to becoming a little close to the edges of it there.

Mr. Mark L. Evans: Well, I was outlining Mr. Chief Justice what our view is of the proper application of Wharton's Rule.

We think it applies only where it can be stated that the conspiracy is a lesser included offense of the substantive crime so that one could not possibly in any circumstances commit the substantive crime without also conspiring to do so, and the example that we used in the brief and we think is the clearest example is the case of dueling, which is defined in terms of an armed combat between two persons pursuant to an agreement to do so.

Now, in order to commit a duel under that definition, you must agree to do so. You must in effect commit each of the elements of a conspiracy.

Now in that context, we have no question that this is the appropriate case in which to apply this general -- whatever the general double jeopardy rules may be with respect to a lesser included offenses in greater offenses.

When we come to Section 1955 however, this is not -- this is anywhere anything like dueling.

I think looking at 1955 in recalling the central question, I think that our theory of Wharton's Rule is whether it would be possible under any circumstances to commit the substantive crime of conducting an illegal gambling business without also conspiring to do so.

Now, the statute defines illegal gambling business as one that involves five or more persons who conduct it but it does not state and it does not imply in our view that all five must be knowing and willful participants.

The purpose of the five-person requirement like that of the other requirements in the definition was to limit the allocation of federal resources to the large gambling operations.

The requirement is one of size, not one of culpability.

This is confirmed we think by the form that was used by Congress in drafting the statute, which is set out at page 2 of our brief.

As --

Justice Harry A. Blackmun: I suppose the purpose of that was to get some federal mixes, wasn't it, some effect on interstate commerce?

Mr. Mark L. Evans: Mr. Justice Blackman, the Congress found that gambling generally has an impact upon interstate commerce.

It specifically stated however that it declined to prohibit, although it thought it was within its reach to do so.

It declined to prohibit all gambling operations because it wished to limit federal resources to the major operations of major proportions.

I don't think this is an essential link for a federal jurisdiction but it is the one Congress picked for policy purposes.

Chief Justice Warren E. Burger: Was it part of the policy theory that they were going to leave the small operations to the states?

Mr. Mark L. Evans: That's exactly right, Mr. Chief Justice.

Now -- but in doing so, the Congress specifically recognized in its legislative reports that while it normally assumed that more than five persons would be involved in the kind of operations it had in mind that it recognized that it's very difficult to prove the full extent of most gambling operations.

And for that reason, it chose five as a number and again, I believe it chose the number in terms of the size of the operation.

It did not specify and there's no reason to believe it had in mind.

Chief Justice Warren E. Burger: It might just as easily have decided to cut the line at ten.

Mr. Mark L. Evans: It might just as easily have decided to cut it at ten.

I believe it was a legislative choice that this would be an appropriate limit to permit prosecutions of large gambling operations in which not everyone could be proved to be involved without having the federal Courts burdened by (Inaudible) prosecutions.

Justice Byron R. White: Let's see if I understand.

You had a set of two, you're suggesting there would be not attack on basic federal jurisdiction.

Mr. Mark L. Evans: Well, there may be an attack upon it.

I'm just pointing out that the Congress believed that the reach of its authority extended beyond the limits that was chosen in the statute.

We believe that Congress deliberately left open in the statute the possibility of prosecuting a sole bookmaker to use the hypothetical we used in our brief who hires innocent persons to help him operate his gambling business.

And it did so because it realized that it may be that there were other people involved, but guilty persons involved, people who are culpable but it's not always easy to prove their involvement.

It's enough to prove that there is one culpable individual operating a business large enough to merit federal attention.

Now, we think that this demonstrates or it answers the question I started with, that is, whether it is possible in any circumstance to commit the substantive offense without conspiring to do so.

The answer is it is possible.

It's a theoretical inquiry granted and there probably will never be such a case.

There may or there may not be such a case; I know of none.

But this is a question of what would be possible and we believe that in this circumstance in which one guilty culpable person hires enough persons to operate his business to bring it within federal -- scope of federal jurisdiction that he would be guilty of the substantive offense but he could not be convicted of a conspiracy because there would be no proof that he conspired with any other culpable person involved in the operation.

Now, one might properly ask I think in these circumstances whether Congress really intended that a person who violates Section 1955 should be subject to the additional punishment for a conspiracy, which probably would be connected with the large operation.

But we think that this Court's decision in Callanan is an answer to that question.

That was not a Wharton's Rule case but an analogous argument was made.

Callanan argued that Congress could not have intended to subject him to multiple punishment for conspiracy and obstructing commerce by extortion because both crimes were created by the same section of the statute.

The Court stated however that the historic distinctiveness between a conspiracy and its substantive aim gives rise to a presumption that Congress intended to maintain that distinction and to maintain the separate punitive consequences of each, and the Court stated in a sentence that I think is worth quoting that appears on page 42 of our brief,

Well, there is no such specific language to the contrary in this statute and we believe that the presumption established by Callanan should be applied in this case as well.

Justice Potter Stewart: I just want to be sure I understood the arguments you're making a moment or two ago.

It's your submission is it that at least theoretically, a single individual could be guilty of violating section 1955.

Mr. Mark L. Evans: That's correct.

Justice Potter Stewart: Because he would be the only one with or with knowledge of what was going on --

Mr. Mark L. Evans: Correct.

Justice Potter Stewart: Is that it?

And he could -- he would hire four more, people who just didn't know what was going on upstairs, is that it?

Mr. Mark L. Evans: That's right.

Justice Thurgood Marshall: Is it a gambling operation?

Mr. Mark L. Evans: Well, we're not suggesting that this is likely.

We're just suggesting that the statute permits -- would permit a prosecution in those circumstances.

The Court of Appeals rested its decision in this case on a ground that this Court needn't consider unless it first finds contrary to our contention that Section 1955 does necessarily include a conspiracy.

That ground is that this case falls within the standard exception to the rule that permits prosecution for a conspiracy when it involves more persons than the minimum number essential to the commission of the substantive offense.

This exception has been recognized even by this Court in the Gebardi case and it's now accepted by the current addition of Wharton's Treaties.

We think it's consistent with the rationale of the rule itself.

Separate punishment in our view is precluded by Wharton's Rule on the theory that Congress took into account in establishing the punishment for the substantive offense all the dangers inherent in the commission of the substantive offense, including the dangers involved and any necessarily included conspiracy.

But when the conspiracy exceeds in number, the minimum number necessary to the commission of the substantive crime, its dangers are likely to be increased also.

And there is no reason in these circumstances to presume that Congress intended to limit the punishment where the conspiracy is greater than -- or creates dangers greater than those inherent in the substantive crime itself.

Chief Justice Warren E. Burger: Let me suggest a hypothetical to you to pursue Mr. Justice Stewart's proposition that you might have four innocent and one guilty, would this situation do it if you had a mountain resort up the borders of Nevada and four people were hired and told that it was in Nevada and that it was perfectly legal to be running the gambling operation, being professional gamblers from Las Vegas or some place.

But the one man who was running the show knows that it is in whatever is an adjacent state which makes it illegal.

What would be the situation then?

Mr. Mark L. Evans: Well, that might be a situation --

Chief Justice Warren E. Burger: Well, it's pretty strange -- it's pretty strange example.

Mr. Mark L. Evans: I think Mr. Chief Justice that while only the one who knows would be guilty of the substantive crime that he might well be guilty of the conspiracy as well because while the four --

Chief Justice Warren E. Burger: Not if he deceived --

Mr. Mark L. Evans: Well I guess it may -- it may fit.

I'm not sure.

It may be the same thing.

Any example you hypothesize is bound to be an unlikely one because this is not the normal situation.

But what matters is that even in those hypothetical situations, it seems to me clear, seems to us clear that the statute would permit prosecution of the one individual and we believe that there are circumstances, and this may be another one in which there would be no prosecution for conspiracy.

Chief Justice Warren E. Burger: Of the four, you mean?

Mr. Mark L. Evans: Of any.

Now, on my hypothetical at least and perhaps on yours, too, Mr. Chief Justice, in order to be convicted of conspiracy, there must be at least two persons --

Chief Justice Warren E. Burger: Under the Mens rea are all the parties --

Mr. Mark L. Evans: Well there has to be at least two persons who share in the guilty knowledge.

Now, to the extent that the four here do not share in the guilty knowledge, I would say that their agreement with him was not a meeting of the minds sufficient to constitute the kind of agreement that's punishable as a conspiracy.

To conclude, I think it's worth recalling Mr. Justice Holmes' statement that was quoted in this Court's decision in Callanan.

He said,

Well, we think that for many years, Wharton's Rule has been applied by the course uncritically and we urge the Court in this case to reconsider the formula and to apply it, if at all only consistent with its proper rationale.

Chief Justice Warren E. Burger: We'll resume there at one o'clock.

Mr. Mark L. Evans: Mr. Chief Justice, I didn't quite get at my conclusion and during lunch, it occurred to me that it might be worth clarifying some points that were raised during the pre-lunch point.

Mr. Justice White, to address further the question that we were discussing earlier about double jeopardy, we don't mean to suggest that it is beyond the power of Congress or a legislature to prescribe that although a crime includes another that both should be punished separately.

We think this is within the power of Congress.

We think however that once it is determined that Congress did not intend separate punishment.

In other words, as nothing was said about it at all, we believe the presumption should be that a single punishment is what was intended and we believe that the decisions of this Court make it clear that in those circumstances, it would be improper to --

Justice Byron R. White: (Inaudible)

Mr. Mark L. Evans: Now, whether they could -- it would depend upon the will on Congress, whether --

Justice Byron R. White: Let us say that the will of Congress was clear and you could punish for both the included offense and the greater offense.

Mr. Mark L. Evans: Well, in that --

Justice Byron R. White: In the same prosecution, you may charge and convict and punish for both.

Mr. Mark L. Evans: I think that that would be constitutionally permissible.

Justice Byron R. White: You think it would?

Mr. Mark L. Evans: Yes.

And I think it's the functional equivalent of Congress saying -- let's just take a concrete example.

Take the assault on a federal officer.

The statute as I remember it says that it's three years for assaulting a federal officer, it's ten years for assaulting a federal officer with the use of a deadly weapon.

Now, if Congress were to say these punishments that the ten years for assaulting a federal officer with a deadly weapon shall be in addition to the three years that would be otherwise imposed for simply assaulting a federal officer, I think that's constitutionally permissible.

It's the same thing as if Congress said three years for assaulting a federal officer, 13 years for assaulting a federal officer with a deadly weapon.

Chief Justice Warren E. Burger: What about murder and manslaughter?

Mr. Mark L. Evans: Well --

Chief Justice Warren E. Burger: You wouldn't suggest that they could punish for both in one crime --

Mr. Mark L. Evans: Well, I think Congress could or a legislature could, but it would be the same thing as saying -- I mean it would just be an awkward way for the legislature to have imposed simply a higher punishment for the greater crime by saying that you can cumulate the greater and the lesser.

It's just another way of saying the greater shall be --

Chief Justice Warren E. Burger: Do you have to go that far in this case?

Mr. Mark L. Evans: No, it's not really -- but I just want to clarify some --

Justice Byron R. White: Well, let's see if I get it clarified some of the things you may have said in the brief.

Mr. Mark L. Evans: Well, I think our brief states Mr. Justice White, that -- I'm reading from page 21 and 22 of our brief that we say that this aspect of the double jeopardy protection is of course subject to the legislative will because the severity and allocation of punishment for criminal conduct are peculiarly questions of legislative policy.

And we cite --

Justice William J. Brennan: But suppose what you have as indeed some states do, felony murders.

You may not try the murder and the felony, robbery let's say, in the course in which a death occurs together.

And the state tries for murder, felony murder, proves the facts of the robbery, the deaths in the course of the robbery gets conviction, imposes a mandatory life sentence, let us say, for the murder.

After that, they try him for the robbery.

Can you do that?

Mr. Mark L. Evans: I didn't --

Justice William J. Brennan: And robbery carries 15 years.

Mr. Mark L. Evans: I believe it would depend upon an understanding of what the intention of legislature was.

If it were -- if the legislature intended --

Justice William J. Brennan: Well, the legislature said in so many words, you can't try these two offenses together.

They have to be tried separately.

And in the case of the felony murder, the sentence shall be mandatorily life.

In the case of the robbery, this will be 15 years.

They try and convict him for the felony murder, he gets that mandatory sentence of life.

Mr. Mark L. Evans: Well --

Justice William J. Brennan: May he now be charged for the robbery?

Mr. Mark L. Evans: I can't answer it because I don't know what policy lies behind the proscription of a joint trial in the two.

And if the proscription is --

Justice William J. Brennan: But they have such proscriptions.

Mr. Mark L. Evans: Well --

Justice William J. Brennan: I don't know why they have them.

They have them.

Mr. Mark L. Evans: Well I haven't thought about this question, Mr. Justice Brennan.

Justice William J. Brennan: Do you think double jeopardy wise, that can be done?

Mr. Mark L. Evans: I really haven't thought about it.

I think it would depend on analysis of the legislature.

Justice William J. Brennan: Nielson is a case that you cite in your footnote.

Mr. Mark L. Evans: Well, Nielson was not that.

Justice William J. Brennan: Nielson was cohabitation, conviction, and later prosecutions for adultery, conviction, and this Court set it aside.

Mr. Mark L. Evans: Well --

Justice William J. Brennan: That wasn't included defense --

Mr. Mark L. Evans: In Nielson, it was a conviction of a greater offense and then it was an attempt to prosecuting unless -- what I'm suggesting is that it's within the power of the legislature to provide --

Justice William J. Brennan: But the legislature in that instance and Nielson did that.

Mr. Mark L. Evans: Well, the legislature --

Justice William J. Brennan: The Utah legislature did precisely that.

They tried him first with cohabitation, which was a federal statute.

He was convicted.

And then he was tried for the adultery, which was also a federal statute, and he was convicted and this Court set the --

Mr. Mark L. Evans: Well, what I'm suggesting that there was nothing in Nielson as I recall Nielson that indicated that there was an expressed determination by the legislature that both crimes should be punished and punished separately, that one who commits both should be punished for both separately.

What I'm suggesting is that in the absence of such a determination, that's right, that I would think that double jeopardy probably does prohibit it.

But --

Justice William J. Brennan: If this Court held, as I understand Justice Brandeis opinion.

I never saw the case, that was cited.

If I understand his opinion at page 191, that's double jeopardy.

And what can the legislature do in the face of the double jeopardy?

Mr. Mark L. Evans: Well, I believe that this aspect of the double jeopardy protection depends upon a threshold analysis of what it is that the legislature has determined.

Justice William J. Brennan: You mean the legislature in that instance, if it had said yes and we mean even if convicted, he may be tried the second time?

Mr. Mark L. Evans: Yes.

Justice William J. Brennan: It has said that many words, notwithstanding the double jeopardy clause, the adultery conviction --

Mr. Mark L. Evans: That's correct.

I believe that's correct.

Justice William J. Brennan: What authority did you get (Voice Overlap) --

Mr. Mark L. Evans: Well, there has never been a case that I can point to, as a matter of fact, the issue may be raised in a peripheral way and the case that's pending.

But that's my view of what the double jeopardy clause -- how it works in the context of double punishment for the same acts that violate two provisions.

It may be different where you're talking about success of prosecutions, but this is my understanding of how it works in this context.

Chief Justice Warren E. Burger: And here we're talking about a case I thought of planning it and doing it.

Mr. Mark L. Evans: That's right.

Chief Justice Warren E. Burger: Congress has said that there are two separate trials.

Mr. Mark L. Evans: That's our position, right.

So in our view, this issue doesn't even come up in the case.

Chief Justice Warren E. Burger: Thank you, Mr. Evans.

You have about three minutes left, Mr. McLaughlin.

Rebuttal of James E. Mclaughlin

Mr. James E. Mclaughlin: I would address myself solely to one point, and that's the point of proper relief.

The government at page 14 of its brief has conceded that if Wharton's Rule applies, and we of course contend that it does, that the proper procedure would have been to instruct the jury to consider the conspiracy count only if they have found the defendants not guilty of the substantive offense.

The government further concedes at page 14 of its brief that this procedure, proper procedure was not followed in this case.

Where we depart from the government is then what is the proper relief for the petitioners here, and we submit that we are entitled to the relief that Mr. Justice Stewart found required in the case of Milanovich v. United States, which unfortunately we did not cite in our brief --

Justice Potter Stewart: That was the receiving stolen property and the conviction for both and for larceny.

Mr. James E. Mclaughlin: That's correct, Your Honor.

That's for the 365 US 557, and that remedy is a new trial.

In closing, we submit that Professor Francis Wharton was buried 85 years ago, I trust that his rule will not be perished in this term.

Thank you.

Chief Justice Warren E. Burger: Thank you, gentlemen.

The case is submitted.