The opinion of the court was delivered by: MUIR
On February 22, 1973, Defendants Matthew Whitaker, Stephen Santai, John Joseph Pancerella, Charles Nicola, and Benito Mione were charged in a two-count indictment with conducting an illegal gambling business in violation of 18 U.S.C. § 1955,
and conspiracy to do so in violation of 18 U.S.C. § 371. Following a jury trial beginning September 6, 1973 and ending September 18, 1973, all of the Defendants were adjudged guilty of both counts. Before the Court are several motions by all Defendants for a new trial and for judgment of acquittal. The issues presented by the various motions will be discussed seriatim.
1. DID THE GOVERNMENT PROVE THAT THE CRIME OF CONDUCTING AN ILLEGAL GAMBLING BUSINESS WAS COMMITTED WITHIN THE MIDDLE DISTRICT OF PENNSYLVANIA?
The basic constitutional provisions contained in Art. III, § 2 and in the Sixth Amendment of the United States Constitution are implemented by F.R. Crim. P. 18 which provides:
"Except as otherwise permitted by statute or by these rules, the prosecution shall be had in a district in which the offense was committed."
The indictment charged the Defendants with conducting a gambling business within the Middle District of Pennsylvania. The bulk of the evidence introduced by the Government consisted of recordings of telephone conversations by and between the several Defendants in furtherance of the gambling business. The evidence, if believed, demonstrated that Defendant Whitaker in Pottsville, Pennsylvania, furnished the daily "line" on sporting events by telephone calls to and from Defendant Pancerella in Mt. Carmel, Pennsylvania. Pancerella would thereafter transmit the "line" information, by telephone, to Defendants Mione and Nicola in the Mt. Carmel-Shenandoah area. At the end of the day, Mione and Nicola would notify Pancerella of the bets which had been taken. Pancerella would transmit by telephone the total of the bets to Defendant Santai in Pottsville. While the Mt. Carmel-Shenandoah area is within the Middle District of Pennsylvania, Pottsville is in the Eastern District of Pennsylvania. Defendants argue that any conduct in furtherance of the gambling business by Santai and Whitaker consisted only in placing or receiving telephone calls from outside this District to Mount Carmel, within the District. Therefore, Defendants contend, as to Santai and Whitaker, this Court had no venue because they did not commit the offense charged in the indictment within the Middle District. And, Defendants argue, since it was improper to prosecute Santai and Whitaker in this District, the charges against the other three Defendants should also be dismissed because there would no longer be the requisite 5 or more persons participating in the gambling business as required by 18 U.S.C. § 1955.
It has long been held that where a conspiracy is comprised of many transactions in various districts, venue as to all conspirators is proper in any district in which any act in furtherance of the conspiracy was committed by any of the conspirators. Hyde v. United States, 225 U.S. 347, 32 S. Ct. 793, 56 L. Ed. 1114 (1912); United States v. Cohen, 197 F.2d 26 (3d Cir. 1952). Similarly, operating an illegal gambling business is a crime which may include conduct in several different districts. To cover the venue requirements for this type of crime, Congress enacted 18 U.S.C. § 3237 which was derived from an 1867 statute defining conspiracy, see Wright and Miller, Federal Practice and Procedure, § 303, and which provides in pertinent part:
"(a) Except as otherwise expressly provided by enactment of Congress, any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.
"Any offense involving the use of the mails, or transportation in interstate or foreign commerce, is a continuing offense and except as otherwise expressly provided by enactment of Congress, may be inquired of and prosecuted in any district from, through, or into which such commerce or mail matter moves."
Thus, prosecutions of crimes under the securities acts consisting of using the mails to employ a scheme to defraud purchasers of securities may be brought in the district of the mailing, the district of receipt, and in the district where the scheme was formed. See United States v. Cashin, 281 F.2d 669 (2d Cir. 1960). It has been held that 18 U.S.C. § 3237 applies to crimes involving interstate telephone calls either on the rationale that the crime began in one district and was completed in another, or the rationale that the statutory language "transportation in interstate commerce" encompasses the use of wire facilities for the transmission of messages. United States v. Spiro, 385 F.2d 210 (7th Cir. 1967); United States v. Synodinos, 218 F. Supp. 479 (D. Utah 1963). In the case at bar, prosecution of all of the Defendants in this District was proper where it was proven that in conducting an illegal gambling operation each Defendant placed or received telephone calls in or to points within the Middle District of Pennsylvania.
2. CAN DEFENDANTS BE CONVICTED OF BOTH A VIOLATION OF 18 U.S.C. § 1955, AND CONSPIRACY TO VIOLATE THAT STATUTE?
"An agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy when the crime is of such a nature as to necessarily require the participation of two persons for its commission."
1 Wharton's Criminal Law and Procedure, § 89, p. 191 (Anderson Ed. 1971). The principle of Wharton's Rule has been accepted by the federal courts where it has been held that a conspiracy charge may not be added to the substantive charge "where the agreement of two persons is necessary for the completion of the substantive crime and there is no ingredient in the conspiracy which is not present in the completed crime." Pinkerton v. United States, 328 U.S. 640, 643, 66 S. Ct. 1180, 1182, 90 L. Ed. 1489 (1946).
Courts have divided on the applicability of Wharton's Rule to facts similar to those in the case at bar. The courts, in cases involving thirteen and eight defendants respectively, held that the defendants could not be prosecuted both for conspiracy to violate § 1955 and for violation of § 1955 itself. United States v. Greenberg, 334 F. Supp. 1092 (N.D. Ohio 1971); United States v. Figueredo, 350 F. Supp. 1031 (M.D. Fla. 1972). A contrary result was reached in United States v. Becker, 461 F.2d 230 (2d Cir. 1972), petition for cert. filed, 41 U.S.L.W. 3160 (U.S. July 28, 1972) (72-158) where it was stated:
". . . in this case an additional two persons, or seven in all, were named in the indictment as having engaged in the conspiracy, whereas the substantive offense required the participation of only five . . . . As we have recently reiterated, as long as the conspiratorial concert of action and the substantive offense underlying it are not coterminous and fewer participants are required for the commission of the substantive offense than are named as joining in a conspiracy to commit it, there is no infirmity in the conspiracy indictment."
461 F.2d at p. 234. From this language, it would appear that the Becker court would allow convictions for conspiracy and the substantive offense only when there were more than five persons engaged in the illegal gambling business. In the most recent of this line of cases, the court in United States v. Hunter, 478 F.2d 1019 (7th Cir. 1973) cert. denied, 414 U.S. 857, 94 S. Ct. 162, 38 L. Ed. 2d 107, eschewed the numbers game and found a conspiracy violation improper because the proof of intent required for the violation of § 1955 was not different from the evidence required to sustain the charge of conspiracy:
". . . [Even] though five or more persons are named in the indictment, a charge of conspiracy to violate § 1955 may not be maintained if it comprehends nothing more than the agreement which those persons necessarily performed by the commission of the substantive offense itself."
While I find the reasoning in Hunter more persuasive, this Court is bound by a recent decision of the Court of Appeals for this circuit which followed the Becker rationale. United States v. Iannelli, 477 F.2d 999 (3d Cir. 1973), cert. denied, 409 U.S. 980, 93 S. Ct. 310, 34 L. Ed. 2d 243. However, the Iannelli case involved more than 5 participants and the Court specifically avoided a decision on the applicability of Wharton's Rule where, as here, only five participants in the gambling business are named. In my view, the conspiracy conviction in the case at bar is improper under the rationale of either Hunter or Becker.
The Government contends that the requirement of § 1955 that at least five persons conduct the gambling business is a jurisdictional element as differentiated from an element of criminality. It argues that group activity is not part of the crime itself, but is only included in the statute as a ground for federal jurisdiction. I fail to grasp the significance of this point. While the 5 person requirement may be jurisdictional, unless it is met no federal crime has been committed. Although a jury need not find knowledge on the part of a defendant of such a jurisdictional element, United States v. Iannelli, supra, it must nevertheless find the existence of the element. And the effect of the requirement of § 1955 that five or more persons engage in the gambling business is necessary to build into the crime a conspiracy by the five participants to conduct a gambling business. Without such an agreement, the intent of the defendants to engage in the gambling business could not be found. The Court is not persuaded by the Government's example of how a conspiracy to violate § 1955 may exist without participation in the gambling business. We have the opposite situation here, and I have concluded that participation in the gambling business in this case could not have existed without a conspiracy to do so. Because I find that "there is no element in the conspiracy which is not present in the completed crime," Pinkerton v. United States, supra, Defendants' motion for judgment of acquittal on Count II will be granted.
3. DID THE COURT ERR IN FAILING TO CHARGE THE JURY IN THE LANGUAGE OF THE INDICTMENT?
In charging the jury on one of the elements of a violation of 18 U.S.C. § 1955, the Court, in conformance with the statute, stated that an illegal gambling business involves five or more persons who "conduct, finance, manage, supervise, direct or own all or a part of a gambling business." (emphasis supplied). The indictment charged that the Defendants did "conduct, finance, manage, supervise, direct and own . . . an illegal gambling business . . . ." (emphasis supplied). Since the Government introduced no evidence that any of the Defendants owned the gambling business, Defendants contend that the Court's charge in disjunctive terms was prejudicial error. However, it is settled that where a statute lists several acts in the disjunctive which constitute a crime, a conviction is valid where any one of the acts is proven even though the indictment links the alleged acts in the conjunctive. United States v. McCann, 465 F.2d 147, 162 (5th Cir. 1972). See Turner v. United States, 396 U.S. 398, 420, 90 S. Ct. 642, 24 L. Ed. 2d 610 (1970).
4. DID THE COURT ERR IN REFUSING TO INCLUDE THE CONCEPT OF "MORAL CERTAINTY" IN ITS CHARGE ON REASONABLE DOUBT?
In its charge to the jury on what constitutes reasonable doubt, the Court denied Defendants' requested instruction that "[a] reasonable doubt exists whenever, after careful and impartial consideration of all the evidence in a case, the jurors do not feel convinced to a moral certainty that a defendant is guilty of the charge." The "moral certainty" concept is a standard part of the reasonable doubt charge in federal courts. Devitt and Blackmar, Federal Jury Practice and Instructions, § 11.01. Defendants have not objected to other portions of the reasonable doubt charge given by the Court. In my view, a charge on "moral certainty" tends to confuse the concept of reasonable doubt. Some jurors may interpret it to mean a doubt based on something other than reason. In United States v. Johnson, 343 F.2d 5 (2d Cir. 1965), the Court found inadequate a charge that the jury should acquit a defendant unless "morally convinced of his guilt." The position of the Court of Appeals for this circuit is unclear. While in United States v. Evans, 359 F.2d 776 (3d Cir. 1966), the Court affirmed a conviction where a requested charge on moral certainty was denied,
in United States v. Stubin, 446 F.2d 457 (3d Cir. 1971), the court reviewed a charge containing the moral certainty concept and found it adequate. In neither case did the Court have before it the question of whether omitting the "moral certainty" charge was error. I have concluded that where, as here, the remainder of the charge adequately and properly defines the term "reasonable doubt," it was not error to refuse to give an instruction on "moral certainty."
5. DID THE COURT ERR IN REFUSING TO ALLOW FULL EXAMINATION OF WITNESSES ON THE ISSUE OF MINIMIZATION OF THE INTERCEPTION OF TELEPHONE CONVERSATIONS AND IN REFUSING TO SUBMIT THE MINIMIZATION ISSUE TO THE JURY?
On December 15, 1972, the Honorable R. Dixon Herman of this Court signed an order authorizing the interception of telephone communications, the recordings of which ultimately made up the bulk of the evidence presented by the Government in the trial of this case. Pursuant to the mandate of 18 U.S.C. § 2518(5), the authorization order provided, inter alia, that the intercept "shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter . . . ." Following arraignment, the Defendants filed several motions including various motions to suppress the wiretap evidence. The suppression motions, which raised the minimization issue, were referred by this Court to Judge Herman because he granted the authorization order. On June 22, 1973, Judge Herman conducted a hearing on the motions to suppress. Much of the evidence and arguments presented at that hearing went to the question of whether the wiretaps in question were conducted in such a way as to minimize the interception of communications not otherwise subject to interception. On July 27, 1973, Judge Herman entered an order denying all of the suppression motions.
At the trial in this case, the issue of minimization was raised repeatedly, particularly during the examination of the F.B.I. agents who made and supervised the wiretaps. Because of the possibility that new evidence on the minimization issue might be uncovered, and in order to provide Defendants with a complete record on which to base any future appeal of the order denying the suppression motions, the Court permitted a liberal inquiry on matters relating to minimization. But when it appeared that matters presented at the hearing before Judge Herman were merely being rehashed, the Court cut off examination of the witnesses on this issue because of the time factor in an already lengthy trial. In view ...