United States v. Herbert Sperling

Before WATERMAN and VAN GRAAF- EILAND, MOTLEY,* Judges, Circuit District Judge.

WATERMAN, Circuit Judge: decide are asked to whether after trial upon single indictment containing imposition several pun- counts the of dual ishments conspir- for violations both the acy criminal enterprise pro- Comprehensive visions of Drug Abuse Prevention and Control Act of 846 and respectively, arising * York, designation. sitting by the Southern New District of Of leadership large of a parole of the defendant’s on each of out Counts One Eight, organization trafficking (the in il- conspiratorial Nine and Ten conspiracy and substan- counts, against the constitution- drugs, licit offends tive respectively), as well as fines of subjected jeop- $50,000 right not to be to double on each of al these four counts. ardy. appeal, On this court affirmed Sperling’s superseding

In a indictment filed convictions on Counts One and Two and May District of New York in reversed and remanded for a Southern new trial on Eight, Counts Nine Ten. Sperling twenty-seven Herbert Sperling, supra.2 In view charged were with various violations of the fact others imposed concurrent sentences had been the federal narcotics laws. Twelve on these latter three counts and on the charged Sper- conspir- counts were laid. The first count, acy we also remanded for a ling and the others with to vio- reconsid- imposed eration of sentence on late the federal narcotics laws from Janu- the con- count. 11, 1973, spiracy 506 F.2d at 1335 n. ary through May in viola- 14. tion of 846. The second rehearing following On the remand for charged Sperling organizing alone with sentencing, reconsideration of the District managing continuing criminal narcotics original Court adhered to its sentence that involving five enterprise peo- at least other Sperling imprisoned thirty years be in violation of 21 848.1 The ple, U.S.C. § $50,000 count, fined on the tenth, eighth, ninth and the “substantive run concurrently with the life sentence and counts,” charged Sperling and others with $100,000 originally imposed fine on the distribute, possessing with intent continuing criminal enterprise count. distributing, cocaine on three occa- From this reimposition of the sentence sions, in violation of 21 U.S.C. 812 and count, and fine on the conspiracy Sperling 841 and 18 U.S.C. 2.§ appeals, arguing, now as he did in the court charged The offenses in the various below,3 that the was both a less- grew Sperling’s counts all out of role as er included offense of and one of the series large highly profitable leader of a nar charged criminal activities in the contin- organization. story cotics The is set forth count, and, uing enterprise hence, criminal case, opinion huge in our earlier in this counts, sentencing that on both rather than (2d Sperling, 506 F.2d 1323 other, only on one or the violated his Fifth guaranty against jeop- Amendment double (1975), 43 L.Ed.2d 439 and we ardy. thorough After consideration of this need not restate it here. issue, important we order difficult and appellant’s prison sentence and fine on the jury In June at the end of a trial conspiracy count be vacated. weeks, Sperling which lasted about four guilty charges. Sep- was found of all In I Pollack, Judge pre- tember who had trial, Sperling proposition sided at the sentenced to life We start with the $100,000 imprisonmént jeopardy and a fine on the clause of the Fifth double enterprise (Count designed criminal count Amendment4 “was as much to Two), prevent thirty being pun and to concurrent terms of the criminal from twice years’ imprisonment plus years’ special six ished for the same offence as being from filed, subsequently Sperling presents previous- 3. 1. In a Bill of Particulars The has not issue eight participants ly by others were named as been considered this court. enterprise, all of whom conspirators among the named in were Count jeopardy 4. The double clause reads: “nor shall One, six as co-defendants and two as unindict- any person subject for the same offence to co-conspirators. ed put jeopardy be twice in life limb.” Eight, subsequent- Nine and Ten were Counts prosequi. ly of nolle dismissed in an order * * parte Lange, Ex twice tried violation of the federal narcot U.S.C, (18 Wall.) 163,173, (1874). 21 L.Ed. 872 laws, 848,6 ics the same offense twice, “prohibits merely punishing or at they when both arise out of a defendant’s punish a second time to criminal tempting participation managerial in a capacity.in a ly, Helvering for the same offense.” single, large-scale conspiracy object whose 391, 399, Mitchell, 303 U.S. and accomplishment is to traffic illegally in (1938). also 82 L.Ed. See North Caroli Only they narcotics? if are not the same Pearce, 711, 717, na v. punishment offense does for both comport Indeed, in the with the Constitution. original Rights the Bill of version of draft No contention is made here that the of- ed James Madison for submission to the charged upon fenses rest different series of Representatives House Indeed, transactions. on Sperling’s original clause read: appeal the strongly Government contended person No shall be subject, except that the evidence large showed one conspi- cases of impeachment, to more than one network, ratorial in which Sperling and co- punishment or one trial for the same of- Pacelli, defendant (whose Vincent Jr. trial fence. severed) had occupied been the roles of Congress 1 Annals of The co-leaders. wording changed was in the Senate to em- ploy the more traditional “jeopardy” term In double jeopardy cases such as prevent in order to a misconstruction of the this, clause that would prohibited have a defend- applicable rule is that where the [t]he seeking ant from a new trial on appeal, but same act or transaction constitutes a vio- no alteration in the nature of the tradition- lation statutory provisions, of two distinct guaranty al itself was intended. United the test to applied be to determine Wilson, v. 332, 341, States 420 U.S. 95 S.Ct. whether there are only two offenses or 1013, 43 L.Ed.2d 232 one, is provision whether each requires prohibition This against multiple punish proof of a fact which the other does not. ment the same offense only express not States, Blockburger 299, v. es the United 284 fundamental U.S. principle of law in 304, 180, 182, 52 (1932); in S.Ct. 76 volved this case but L.Ed. 306 specifies also accord, precise nature of the Gavieres confronting issue v. United us: 220 U.S. 338, 342, 421, are the crimes of 31 to violate the 55 L.Ed. 489 laws, 846,5 federal narcotics 21 This “Blockburger so-called § test” focuses on that of engaging continuing in a criminal the statutorily required elements of the of- 6. 21 U.S.C. 5. 21 U.S.C. less than 10 life paragraph (2); uing a term of both section, $100,000 punishment prescribed ter is commission of which was the attempt commit ' Any (b) (a)(1) Any person imprisonment, criminal which For punishable by ^[******] person any or enterprise and to the forfeiture purposes § person imprisonment conspiracy. 846 848 may offense defined in this years enterprise who * * provides: provides, not exceed the maximum to a fine of not more than and which attempts if— of subsection who engaged imprisonment *. shall be sentenced to for the engages in a or pertinent part: may prescribed object conspires offense, may in a contin- (a) or fine or subchap- of this not be up to Title 18 under this tion shall not be stantial position punishment chapter chapter such sentence series of (c) (B) (A) (1) (2) concert with five or more other any respect In the case of he violates such from which such which are undertaken other income or resources. or II of this violations of this * * * section, imposition violation is a organizer, subchapter for which is a to whom such position shall not be granted, any provision chapter— ; shall not any II of this supervisory position, person and section 4202 of subchapter management, suspended, proba- sentence person felony, apply. by or execution of obtains sub- a such of this sub- chapter continuing occupies imposed persons or sub- person a

1055 States, 420 fenses, uing v. United criminal enterprise charge Iannelli prove is to 1284, 17, conspiracy.7 n. 95 S.Ct. Jeffers, 785 United States v. jeopardy- hence the double 532 (1975), (7th Cir.), F.2d 1106-07 cert. violated here unless granted, would not be 97 clause all. (1976) of- (No. 75-1805, L.Ed.2d 74 Term).

the elements present then, in order to convict of In the proved setting, fense must be these two of continuing criminal fenses are “the same in law and in fact.” Downey Peyton, Pacelli, v. v. (2d offense. See 470 F.2d 67 Cir. (4th 1971). it Cir. “[Whenever proof (1973); accord, of one offense appears L.Ed.2d 178 Kramer, element another proves every (2d essential States 289 F.2d 909 Cir. act, the Fifth growing 1961). out of the same punishment

Amendment limits the to a sin- II Austin, gle act.” United States F.2d (6th 1976). below, however, The court rea soned that Put way, analy- another under traditional sis a 846 conspiracy if is a “lesser included a conspiracy entirely independent of a offense” of a 848 criminal the related substantive offense which itself enterprise, punishment imposed then on the involves long concerted action so as the (§ greater 848) offense preclude pun- would conspiracy charged larger involves a (§ 846). ishment on the lesser The test of a participants number of than the substan- lesser included offense has been stated as tive offense requires.

follows: Sperling, 413 F.Supp. where an offense cannot be committed (SDNY 1976). In the context of this necessarily without committing another case, we do not believe this distinction an- offense, necessarily the latter is a includ- question swers the of whether Sperling’s offense; if, ed in the commission of participation in the conspiracy constituted statute, acts made unlawful one two appears offenses. to us to be a another, always offender must violate statement party” exception of the “third necessarily one offense is included in the gist Wharton’s Rule. The of Wharton’s other. Rule is that where (1961) (foot- Law C.J.S. Criminal the § statute the defining substantive of- omitted). 187-88, 221, States, 2 355 78 S.Ct. U.S. Thus, 420 U.S. at 95 at 1292. S.Ct. (1957). L.Ed.2d Congressional punish intent to cumulatively the conspiracy both and the substantive of- proscription doctrine is the to the Central fense is necessary presump- to override the multiple punishments for same against conspiracies tion those and substantive In the middle of the Twelfth Cen- offense. crimes which fall within Wharton’s Rule Thomas á Becket is said to tury, Archbishop punished cannot be more than once. In King Henry II a concession have won from —which, course, Iannelli of dealt with a dif- punished in the ecclesias- exempting clerks Supreme ferent statute —the Court found being punished again from tical courts case, Congressional such intent. In this for transgres- King’s courts for the same statute, this we do not. argued punishment that the latter sion. He idip- would violate the maxim Nemo bis Ill sum, ought punished man to be twice —no offense, dating Congress long maxim We note that for the same has —a an commentary Jerome’s manifested unmistakable intention to least from St. The harshly enterprise provision with narcotics offenders. deal dealt only with sen- Drug tencing. Prevention and It was Comprehensive Abuse an alternative to be in- voked in the case of those who engaged Act of Stat. Control extensive violations of the seq. (1970), exemplar et is an of that narcotics laws and who derived profit substantial See, example, H.R.Rep.No. for from intention. enterprise. their illicit Requiring a H.R.18583, mini- (accompanying the bill 91-1444 mum sentence of years’ ten imprisonment Act), (1970) eventuated in the 1970 which and providing imposition for the of life Cong. & Ad.News 4575: U.S.Code sentences parole, without it was intended to reported provides bill severe crimi- The keep certain offenders “out of circulation.” persons engaged in penalties nal illicit As merely sentencing provision, however, drugs or sale of controlled manufacture it contemplated the use of hearsay and ru- primarily profits for the to be derived mor in the presentencing report without therefrom. providing opportunity an for cross-examina- Congress This attitude of well-known declarant; tion of the it would have al- courts, application to the and we decline the lowed the sentencing judge to por- withhold lenity” in this case of the “rule of toward presentence tions of the report from the defendant, States, Bell v. United defendant; it and would have placed on the (1955), 99 L.Ed. 905 U.S. defendant the burden of proving that any appellant guide should insists our substantial income enjoyed he was not at- considerations. tributable to his illegal transactions in nar- Congress has manifested an attitude not cotics. of toward lenity severity but violation Doubts about the constitutionality the narcotics laws. provisions these of the continuing criminal 386, 391, v. United Gore 78 enterprise sentencing proposal led to an making amendment a continuing criminal Still, enterprise not merely sentencing we must focus our attention on the alterna- offense, tive but a distinct us, statutory provisions thereby before and on assuring that all its elements would have to be against jeop- constitutional mandate double estab- ardy. struction bles render ing the direction and control of producing derworld that provision, only extensive, abuse from individual alties comprehensive struction sections of the § versal While the just the 1970 section of the 1970 Act encompassing C.I.T. Credit these “Generalities the help unique.” is intended to 227, 229, it is clear that every problem statutory continuing managers legislative history legislation, sought us little. § scheme of offenses and distributing enterprises. statute 408 of the Corp., the entire field of United States v. Uni- about involved of the narcotics un- personal * * * criminal reach, L.Ed. 260 Congress, large statutory Act, and it is the of the two here to enact a Cong. The varia- use U.S.C. 21 narcotics 218, 221, in creat- provide is not up drug pen- con- con- jury trial” led to the enactment of “a new lished in court before the offender could be fense be into triable in court.” history shows that what originated as a this cern that subjected to its harsh members distinct offense with all its elements “any Far suggests acy eign constitutional such in the enacted and offense, new from H.R.Rep.No.91-1444, of the real Commerce sentencing & Admin.News punishable indicating, us, guaranties sentencing stiff House Interstate and For- protections portion Committee, alternative remained as statute, (“Additional along Congress criminal enterprise of- penalties. Thus, as the Government 4566, 4650, preserved. with the provision lacked ^[1970] but with all our afforded by a intended that incorporated Views” of legislative U.S.Code conspir- 4651.) con- mandatory minimum sentences. IV instructive, believe, origi- It is we that as dismissing Sperling’s In contention that introduced, continuing the criminal nally precluded conviction and sentence on 848 § 1058 acts, 846, the District re- ent overt that Court and “the

sentencing on evidence that § our decision United large part lied in on the conspiracies were distinct is overwhelm- (2d 823 Papa, Cir. States ing.” Furthermore, 533 F.2d at 821. of the 1976), where we stated: sixty total of conspirators named in the two recognized prosecu- that has indictments, This Court only Papa and one An- two— sep- is distinct and tion under section 848 thony both, Passero —were named in and prosecution conspir- for the arate from a Passero’s charged role in the events may offenses that acy and substantive Southern District indictment had the evidence some of offered constitute gone virtually unestablished at the trial. enterprise count. continuing on We only personnel that “the concluded link however, support does not the passage, This conspiracies between the two besides the below, that case can- conclusion drawn appellant [Papa] tenuous at best.” 533 holding that sentencing taken as not be F.2d at 822. presents 848 no under both 846 and § § plea As of Papa’s bargain upon the jeopardy problems. Papa Since double indictment, Eastern District the count us the strongly urged upon Government charging him with 848 § offense here, we controlling as our decision turn engaging in a criminal enter- analysis of it. now to a detailed prise Papa argued was dismissed. that this jury after a Papa was convicted trial in “necessarily absorbed the conspiracy and the United States District Court for the charged substantive offenses in the South- District of New York on a two- Southern indictment,” ern District they since were (the count indictment “Southern District count; necessary elements 848 § indictment”) (1) him with charging conspir- hence, jeopardy prevented double to traffic in ing with five others narcotics prosecution. Southern District rejected (2) in violation of 21 and with U.S.C. § well, noting contention as that the con- possession substantive offense with spiracies charged in two indictments heroin, in intent to distribute violation of 21 Furthermore, entirely independent. were 841. He had U.S.C. earlier pointed Papa’s we out that claims with re- pleaded guilty brought to an indictment spect to the count pure rested on § (the the Eastern of New District York speculation as to what evidence would have indictment”) “Eastern District been offered had there been a trial on that charged (1) conspiring him with with twen- count, and we that observed to introduce ty-one named co-defendants others to “during same evidence trial on different traffic in violation narcotics in of 21 offenses is consistent entirely princi- (2) engaging and with in a ples of jeopardy.” double 533 F.2d at 823. criminal enterprise in violation of 21 U.S.C. Then followed the statement upon relied by the court below. That statement does appeal On from his Southern District con- not mean prosecution sentencing viction, forcefully Papa asserted that his for both 846 and 848 offenses will never plea earlier to the Eastern District indict- Indeed, offend jeopardy. double in not one ment precluded on the conspiracy conviction Papa three cases cited in after the count, arguing conspiracies quoted statement8 did the court squarely charged in the two indictments were actual- imposition consider whether ly sentence parts single conspiracy, of a and hence upon both a count prosecution his second violated the concomitant double rejected claim, punish- count constitutes double jeopardy clause. We pointing single out that two ment for a indictments al- offense violation of the leged co-conspirators short, different double In jeopardy and differ- clause. we Sperling, supra, (2d (1974); 8. United States v. 95 S.Ct. L.Ed.2d 283 denied, 1974), Manfredi, (2d cert. 488 F.2d 588 (1975); denied, Cir. 2651, cert. Sisca, Cir.), (2d 503 F.2d 1337 L.Ed.2d today in no Iannelli v. opinion that our decision supra, which it Papa. decision in way interpreted conflicts with our as “formpng] a new double jeopardy approach towards complex statu- an affirm compelling cited to us as Also tory crimes.” Jeffers, supra, 532 ance is United States theme opinion [T]he [Iannelli] (7th Cir.), granted, F.2d seems to be that at least in the area of (1976) (No. 50 L.Ed.2d complex crimes, statutory if Congress in- 75-1805, Term). As Jeffers seems to tends that two offenses be retained as here, what we decide opposite hold offenses, independent prosecution under detail, noting that ease in some we examine permissible. both is question it involved a at the outset that arising from the at alleged jeopardy former Id. 1108. The panel read Iannelli as separate appellant changing had suffered the Blockburger fact that test10 from a separate indictments. upon principle jeopardy convictions of double into a tool of statutory analysis for interpreting whether Jeffers, highly-structured “the head of Congress intended to impose multiple pun- network,” 532 F.2d at narcotics distribution multiple ishments for arising offenses from engaging in a contin- 1104 was convicted of single act. enterprise in violation of 21 uing criminal imprison- to life 848 and sentenced U.S.C. need not decide whether we he had earlier separate agree however, In a trial with this analysis, ment. for we conspiracy above, to violate the are of the opinion, been convicted of set out that Con laws, 21 gress narcotics in violation of did not federal intend 846 and 848 to §§ 846, upon an indictment handed offenses separately and simultaneously U.S.C. § day punishable the same as the 848 indictment where the facts on down which the events.9 involving the same violations rest are the same.11 conspiracy conviction on the We have carefully legisla- After his scrutinized the and, to his trial on the continu- tive charge, prior history, teachings with the of Ian- mind, enterprise, sought Jeffers nelli in ing criminal we have reached the conclu- that, (18 dismiss the criminal sion unlike the statute in Iannelli grounds, jeopardy Congress require indictment on double did not claiming the same events were the activity persons concerted of five or more solely of both. The trial court denied Jef- as an element of “to restrict basis motion, convicted, he was and the fers’ Sev- federal intervention to eases in which feder- implicated,” enth Circuit affirmed. al interests substantially 1296, but, at rath- had no trouble Appeals The Court of er, Congress provision as an intended this finding was a lesser conspiracy offense, alternative one available to be enterprise. of the criminal included offense presented against significantly leaders of Observing that traditional rules of double large conspiratorial enterprises. narcotics require reversal jeopardy would therefore prosecu- conviction in the latter of Jeffers’ Our conclusion is buttressed the severe tion, apply penalty provisions incorporated nonetheless declined to the court in 848 and sentences, analysis.” suspended mechanical 532 F.2d its disallowance of “this rather Rather, it probation parole n.3. went on to consider for those convicted. at 1108 Ante, sought pp. to consolidate the 1054-1055. 9. The Government trial, as to have one but two indictments so contending objected, “that agree Jeffers 11. We are unable to with the rationale enterprise were not pp. opinion, set forth at 1110-11 of the Jeffers great prejudice would re- ‘the same’ and that where the court concluded that 846 and 848 enterprise charge in the criminal quite sult to [him] “are directed at different results” and co-conspirators by bringing as to by Congress separately in evidence were intended to be directly inculpate punishable. legislative history did not We read the was differently. at 1106. Consolidation [him].” denied. 1060 Congress, respectfully disagree unable to I majori conclude with eradicating as it with rightly is

concerned ty’s position that concerted action is the drugs, in- scourge traffic in illicit equivalent conspiratorial A action. con being person convicted of tended requires spiracy “preconcert conni could be of a narcotics leader Peterson, vance”. United States v. 524 imprisonment pa- without to life sentenced 167, (4th 1975), denied, F.2d 174 Cir. cert. role, again then also sentenced for be- 1088, 881, 423 96 U.S. S.Ct. 47 L.Ed.2d 99 & he very gang member of the led. ing a 925, 1136, 424 96 U.S. S.Ct. 47 334 L.Ed.2d (1976). action, Concerted on the other reasons, appel For these we vacate hand, result may from duress than One, rather Count Sperling’s sentence12 on lant agreement. Cf. count, Tierney, United States v. only vacate but we sentence, 643, (9th Cir.), denied, on 424 F.2d 646 for his conviction Count cert. 400 We, course, 53, 850, (1970). unaffected.13 U.S. 91 S.Ct. 27 One remains L.Ed.2d 87 Sperling’s undisturbed sentence may leave It occur without criminal intent on the unlikely Count Two and in the fine on of one or more parties of the involved. that sometime in the future his con event States, 604, See v. Baker United 393 F.2d overturned, on Count Two shall be viction (9th Cir.), denied, 836, 609 cert. 393 89 U.S. imposed on the unaffected the sentence 110, 21 (1968); S.Ct. L.Ed.2d 106 United reinstated. on Count One is to be conviction Lester, 68, States v. 363 (6th F.2d 72-73 Cir. remanded to District Court. Cause denied, 1966), 1002, cert. 385 U.S. 87 S.Ct. 705, (1967); 17 L.Ed.2d 542 Boushea v. GRAAFEILAND, Judge Circuit VAN States, 131, 173 (8th United F.2d 134 Cir. (dissenting): 1949). may simply be joint activity concepts of the fundamental One aiding abetting. associated Unit conspiracy is that there is no such law of Hodorowicz, 218, ed v. States 105 220 F.2d as a one-man thing conspiracy. United (7th denied, Cir.), 584, cert. 308 U.S. Gisehaltz, 434, v. 278 437 F.Supp. States 108, (1939); 84 L.Ed. 489 Jamail v. United reason, one mem (S.D.N.Y.1967). For this States, 216, (5th 1932). 55 F.2d 217 Cir. alleged conspiracy an be con ber of cannot “aids, abets, counsels, commands, One who acquitted. if all other members are victed procures” induces or the commission of a Peterson, 645, States v. F.2d 651 United 488 crime punishable principal. is as a 18 828, Cir.), denied, (5th cert. 419 95 U.S. S.Ct. 2; Peoni, United v. States 100 F.2d 49, (1974); States v. United 401, (2d 1938). This, substance, Cir. 402 Shuford, 772, 1971); (4th 454 F.2d 779 Cir. prohibited by is the conduct 848. Con 362, States, v. United 289 F.2d 368 Herman spiracy to commit a substantive offense and 897,82 (5th Cir.), denied, cert. 368 S.Ct. aiding abetting sep its commission are 174, (1961). L.Ed.2d 93 848 7 21 U.S.C. § crimes, arate and distinct and a defendant proscribes a one-man offense. A defendant may be convicted of both. v. United States indicted alone can be and convicted alone. 1069,1083 Tropiano, (2d 1969), 418 F.2d Cir. requires proof agree Conviction no denied, 1258, cert. 397 U.S. 90 25 S.Ct. is implicit every conspiracy. ment which L.Ed.2d 530 Borelli, See United States 336 F.2d The (2d 384 Cir. District jury, Court instructed the 85 13 L.Ed.2d 555 exception, without that before appellant count, jeopardy analysis applicable single 12. The double nal 848. His conten- $50,000 imposed Sperling, appeal, also to the upon fine on tion contention with which States, that, American having see Tobacco v. agree, United we been convicted for (1946), crimes, committing pun- L.Ed. both he be could not set it and we aside also. only ished on both convictions but on one. Stewart, (2d Appellant propriety, Pravato, does not 1975); contest Cir. 703, F.2d not and does claim error in that he was (2d the fact 1974); Cir. Gorman v. indicted, tried, and convicted on the con- both (2d 1972). F.2d count, spiracy and the crimi- violating could convicted he committed the sub-

jury must find that charged in Counts 9 and

stantive offenses indictment; these were

10 of appel- a series of violations

lant; posi- occupied supervisory that he management; position

tion from the

he obtained substantial income re- of none of these was

violations. Proof

quired for conviction under the not, therefore,

count. The two offenses are in fact.” Because I

“the same law and conspiratorial agree-

conclude also that is not an element of a 848

ment essential

violation, majority’s I cannot concur in the

holding dispa- that the sentences these jeopardy.

rate offenses constituted double respectfully

I therefore dissent.

Michael MEEROPOL and Robert Plaintiffs-Appellants,

Meeropol, NIZER, Doubleday Co., Inc. and

Louis & Publications, Inc.,

Fawcett

Defendants-Appellees.

No. Docket 76-7434. Appeals, Court of Circuit.

Second

Argued May 1977. July

Decided notes requires fense concerted action and none participated necessary par- other than the We believe the two offenses for ties, danger there is no additional [to which Sperling was sentenced meet society due agree- to the existence of an test, that, involved, on the facts here ment among person more than one to 846 defines a lesser offense with- included violate the a charge conspir- law] in required 848. One of the elements to acy to violate the statute will not lie[.] convict of a 848 offense is that the de- fendant shall have violated the narcotics Boyle, U.S.App.D.C. 755, 767, laws “in with concert five or more other persons.” “mutually (1973). “Concerted” means on,” “performed agreed exception general contrived or or itself an to the rule Collegiate conspiracy New Dic- that a unison.” Webster’s to commit a crime and the crime, (1976 ed.). think it is too tionary requiring We commission the each proof cavil that to act “in concert” to of an element not plain required for for the other, necessarily conspir- separately cumulatively law includes are pun violate the and, hence, so, the contin- ing prove traditionally to do to ishable. Wharton’s Rule has congruent, offenses are far from laws and that he have derived 7. The two substantial in- however, requires since unlike come therefrom. have violated the narcotics the defendant adultery, biga- year judges “For God not twice as for the to such crimes application Friedland, duelling, agreement where M. Jeop- same offense.” Double my, incest 5-6, ardy, supra normally prerequi- a 326-27. the crime is to commit W. LaFave & accomplishment. to its site Bill Rights being When our own was Law 492- Scott, on Criminal Handbook A. drafted, “preventing multiple punishment to party” exception The “third (1972). the offense for same was foremost in the punishment dual for Rule allows Wharton’s minds of the framers of the jeopardy double object crime where conspiracy and Comment, Jeopardy, clause.” Twice in in the conspiracy take persons more Yale L.J. 266 n. 13 And while the sub- necessary accomplish to than are determine, legislature may consistently offense. stantive clause, jeopardy with the double that multi- exception inap- its We find Rule and ple punishments may imposed for a sin- charged Sperling to this case. was plicable conduct, gle course of constitutional a criminal en- engaging prohibition prosecu- limits the discretion- of laws terprise in violation of the narcotics tors and courts “to cumulate convictions conspiracy to violate the narcotics and with punishment legislature’s when the will laws, violate the not with to explicit.” is not Id. at 311-12. enterprise statute it- continuing criminal Thus, reluetant, Congress we when self, be the situation to which which would silent, grant power prosecutors to analysis applies Rule Wharton’s —and multiple punishments for a sin- bring about case, example, in Iannelli was the offense, gle and this would follow from States, claim is supra. Sperling’s United of the District Court’s view that acceptance clause it- jeopardy the double founded on charging of the mere more defendants in self. count than with the rationale of count would render con- agree cannot subject an additional reason. victions on both counts to distinct Court for the District punishments. double against the rule history “The history proce- of criminal is the jeopardy Moreover, even were this a Wharton’s is more procedural doctrine No other dure. case, Rule our conclusion would not be a all-pervasive.” M. Fried- fundamental Supreme different one. The Court has land, It has Jeopardy Double made clear that “Wharton’s Rule does not * * side of the counterpoise on the stood as on principles jeopardy rest of double *. mas- against the state with its defendant Instead, it has vitality only current as if un- capable, and resources power sive judicial presumption, applied to be checked, the individual ac- overwhelming legislative absence of intent to the con- of a crime. Cf. Green United cused trary.” Iannelli v. supra,

Case Details

Case Name: United States v. Herbert Sperling

Court Name: Court of Appeals for the Second Circuit

Date Published: Aug 26, 1977

Citation: 560 F.2d 1050

Docket Number: 237, Docket 76-1269

Court Abbreviation: 2d Cir.