# Iannelli v. United States > Supreme Court of the United States · March 25, 1975 · 420 U.S. 770 URL: https://www.frixlaw.com/law-library/cases/9426046 ## Case - **Full name:** IANNELLI Et Al. v. UNITED STATES - **Court:** Supreme Court of the United States - **Decided:** March 25, 1975 - **Citations:** 420 U.S. 770; 95 S. Ct. 1284; 43 L. Ed. 2d 616; 1975 U.S. LEXIS 52 - **Precedential status:** Published - **Opinion:** Dissent by Douglas - **Judges:** Brennan, Powell, Douglas, Stewart, Marshall - **Cited by:** 1,242 later opinions in the Frix Law Library ## Citator (automated) - **Yellow flag:** Reported overruled on other grounds by Brown v. Ohio, 432 U.S. 161 (1977) — not on the Supreme Court's list. - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9426046 ## How later opinions describe it (automated extraction) - explaining that the Blockburger test “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, B… - holding "that the history and structure of the Organized Crime Control Act of 1970 mánifest a clear and unmistakable legislative judgment that more than outweighs any presumption of merger between the conspiracy * * * and the consummation of that substantive offense” - holding that Wharton’s Rule did not apply because a review of the applicable statutes showed that Congress did not intend that conspiracy to violate a federal gambling statute be merged with the substantive gambling offense - holding that the legislative intent expressed in the history and structure of the act prohibiting illegal gambling manifested a clear intent to punish conspiracy as a distinct offense, outweighing any presumption of merger - stating that the Blockburger test “focuses on the statutory elements of the offense” and that the test may be satisfied “notwithstanding a substantial overlap in the proof offered to establish the crimes” ## Opinion text 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 *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, 394-395 (1902), and later cases 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, 395-397 (1958), where the Government brought three charges based on *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 396 , quoting Regina 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. 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 *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. 91-A52, 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. 3 Most of the Act was devoted to altering the powers and procedures of law enforcement institutions to deal with existing offenses. 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.” 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 *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 786. But the majority concludes that simultaneous conviction is authorized because it is not “explicitly excluded.” Ante, at 789. The majority thus implicitly concedes that the statute is silent on the matter of simultaneous conviction. 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, 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, 602 (1961) (Stewart, J., dissenting). The majority suggests, ante, at 784, that § 371 may be *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 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. 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. 9 An enterprise proscribed by § 1955 will involve repeated transactions; yet I have *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,” 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 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, 11 and he did suggest that the jury might defer *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 555 . I would accordingly reverse these convictions. Mr. Justice Stewart and Mr. Justice Marshall join Part II of this opinion. E. g., Morgan v. Devine, 237 U. S. 632, 641 (1916); Pinkerton v. United States, 328 U. S. 640, 643-644 (1946); Gore v. United States, 357 U.S. 386 (1958). See United States v. Rabinowich, 238 U. S. 78, 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.” See S. Rep. No., 91-617, pp. 36-41 (1969) (hereinafter Senate Report). Title I authorized the convening of special grand juries, and Titles II through VI were aimed at enhancing the prosecutor’s ability to obtain testimony of witnesses. Title X provides for the enhancement of sentences of designated offenders. Senate Report 73. 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. See Senate Report 40-41; H. R. Rep. No. 91-1549, p. 53 (1970). 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). 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. Senate Report 83. 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9426046. Public record. Not legal advice.