embraced by the prohibitions of Section 1962(c). The Court's position on that issue has been fully and adequately set forth in the Opinion reported at 405 F. Supp. 23 (E.D.Pa. 1975), in this case, dealing with the motions of co-defendant George Collitt. Our rejection of Frumento's argument is based on that discussion.
Frumento argues further that, even if the Bureau is a statutory "enterprise," the activities of the Bureau do not affect interstate or foreign commerce. We believe that this challenge to the jurisdictional reach of the statute is also without merit. The Government intends to prove at trial, and it is accepted as true for purposes of this motion, that all cigarettes marketed in Pennsylvania are imported from other states and that the Bureau is the sole governmental agency empowered to enforce the Commonwealth's laws respecting the importation of cigarettes. Frumento contends that once the cigarettes have been sold by the out-of-state manufacturer or dealer to the Pennsylvania distributor, the Bureau's enforcement of that distributor's subsequent obligation to make payment of the Pennsylvania cigarette tax before resale does not amount to engaging in or affecting interstate commerce. From the time the Pennsylvania tax is paid, the argument continues, the cigarettes may only be sold legally within Pennsylvania and, thus, the relevant journey of the taxed cigarettes is only intrastate. This argument too narrowly restricts the meaning of the concept "affect interstate commerce." It is obvious that the imposition of the Pennsylvania tax affects the resale price to any purchaser of the taxed cigarettes. It is also basic economic theory that the price of an item usually has a relationship to the unit sales volume of the item. By enforcing the Commonwealth's cigarette tax laws, the Bureau directly affects the price of legitimate cigarettes in Pennsylvania and, thus, the amount of legitimate cigarette sales in Pennsylvania. Since all cigarettes sold in Pennsylvania are originally imported from other states, any activity which influences the amount of cigarette sales in the Commonwealth clearly affects interstate commerce. The jurisdictional prerequisites of the crimes for which Frumento stands accused have been properly alleged.
Double Jeopardy and Collateral Estoppel
Frumento contends that this federal prosecution is barred by the Double Jeopardy Clause of the Fifth Amendment to the Constitution. In June, 1972, Frumento was tried and acquitted in Philadelphia Municipal Court on charges of bribery, extortion and conspiracy to accept bribes and avoid payment of the Pennsylvania cigarette tax. The state indictment was based on the same alleged activity as the present federal indictment, which charges that Frumento violated 18 U.S.C. § 1962(c) by engaging in the conduct of the Bureau's affairs through a pattern of racketeering activity. In relevant part, "racketeering activity" is defined by the statute as "any act or threat involving . . . bribery, [or] extortion, . . . which is chargeable under State law and punishable by imprisonment for more than one year . . . ." 18 U.S.C. § 1961(1) (A). Proof of a "pattern of racketeering activity," which is an essential element of the charged offense, requires a showing of at least two separate instances of racketeering activity. 18 U.S.C. § 1961(5).
Frumento argues that the holding of Abbate v. United States, 359 U.S. 187, 3 L. Ed. 2d 729, 79 S. Ct. 666 (1959), that successive state and federal prosecutions for the same acts are not barred by the Double Jeopardy Clause, is no longer valid. While the doctrine of dual sovereignty has been eroded somewhat by more recent Supreme Court decisions, such as Murphy v. Waterfront Commission, 378 U.S. 52, 12 L. Ed. 2d 678, 84 S. Ct. 1594 (1964), and Elkins v. United States, 364 U.S. 206, 4 L. Ed. 2d 1669, 80 S. Ct. 1437 (1960), this Court believes that the Abbate rule has continuing vitality. United States v. Johnson, 516 F.2d 209, 212 (8th Cir.), cert. denied, 423 U.S. 859, 96 S. Ct. 112, 46 L. Ed. 2d 85 (1975); United States v. Fernandez, 497 F.2d 730, 747 n.10 (9th Cir. 1974) (Hufstedler, J., concurring specially), cert. denied, 420 U.S. 990, 43 L. Ed. 2d 670, 95 S. Ct. 1423 (1975). In fact, Chief Justice Burger, joined by Justices White and Rehnquist, recently addressed the issue and stated specifically that they believe Abbate remains "good law." Watts v. United States, 422 U.S. 1032, 1038, 45 L. Ed. 2d 688, 95 S. Ct. 2648 (1975) (dissenting opinion).
Our ruling that Abbate v. United States, supra, is controlling here leads directly to the rejection of the second prong of Frumento's argument. Frumento contends that since an essential element of the federal crimes for which he stands indicted is proof of violations of state law, for which a state court has already acquitted him, the doctrine of collateral estoppel bars this prosecution. See generally Ashe v. Swenson, 397 U.S. 436, 25 L. Ed. 2d 469, 90 S. Ct. 1189 (1970). The doctrine of collateral estoppel prevents the relitigation of a once-determined issue of ultimate fact by the same parties in a subsequent action. Ashe v. Swenson, supra at 443. The state and federal governments, as separate sovereigns, are not the same party. Therefore, federal prosecution for a violation of federal law, which happens to incorporate within its provisions state law for which there has already been a state prosecution, does not offend the established collateral estoppel rule of federal criminal law. See United States v. Kerrigan, 514 F.2d 35, 37 n.1 (9th Cir.), cert. denied, 423 U.S. 924, 96 S. Ct. 266, 46 L. Ed. 2d 249 (1975); United States v. Smaldone, 485 F.2d 1333, 1343 (10th Cir. 1973), cert. denied, 416 U.S. 936, 40 L. Ed. 2d 286, 94 S. Ct. 1934 (1974). The principle of Ashe v. Swenson, supra, does not apply in the separate sovereign context. United States v. Fernandez, supra, 497 F.2d at 747 n.10 (Hufstedler, J., concurring specially).
Department of Justice Policy
The Department of Justice has an internal policy against "duplicating federal-state prosecutions." Petite v. United States, 361 U.S. 529, 4 L. Ed. 2d 490, 80 S. Ct. 450 (1960). It has recently been articulated as "the Department of Justice policy of not prosecuting individuals previously tried in a state court for offenses involving the same acts, unless there exist 'most compelling reasons,' and then only after the specific approval of the appropriate Assistant Attorney General has been obtained." Watts v. United States, supra, 422 U.S. at 1033 (dissenting opinion, quoting Solicitor General's brief for the United States). Frumento claims that this prosecution violates the above-stated policy.
The Government has presented to the Court a letter affidavit from Deputy Assistant Attorney General John C. Keeney, dated October 20, 1975, which states that in his position as Acting Assistant Attorney General, Criminal Division, he personally approved this prosecution on May 4, 1975, with full awareness of the previous state action. The requisite approval was, thus, received for this prosecution.
The only remaining question is whether there were "most compelling reasons" to bring this federal indictment. The flexibility and discretion inherent in this phrase makes the question of whether there has been compliance with the policy an inappropriate subject for judicial evaluation. Watts v. United States, supra at 1037 (dissenting opinion). This is not a case such as Watts, where the Solicitor General confessed error on the grounds that prior approval for the prosecution had not been sought and "compelling reasons" did not exist for the federal prosecution. Proper approval from the Assistant Attorney General was obtained for this prosecution. The Court will not go further and review the merits of this internal prosecutorial decision.
Grand Jury Selection
Frumento moves to dismiss the indictment on the ground that the grand jury was selected in violation of the requirements of the Jury Selection and Service Act of 1968, 28 U.S.C. § 1861 et seq., and his Fifth Amendment right to be indicted only by a grand jury which constitutes a fair cross-section of the community from which it is drawn. Frumento argues that the exclusive use of voter registration lists to obtain the juror wheel
may result in the selection of a group of individuals not properly representative of the community as regards the characteristics of race, age or economic status.
We note preliminarily that Frumento's statutory challenge is barred by his failure to comply with the mandatory procedural prerequisites to such an attack on the selection process. See 28 U.S.C. § 1867(e). The motion before the Court contains no "sworn statement of facts which, if true, would constitute a substantial failure to comply with the provisions" of the Act. 28 U.S.C. § 1867(d). Compare Test v. United States, 420 U.S. 28, 42 L. Ed. 2d 786, 95 S. Ct. 749 (1975). The absence of such a sworn statement requires the denial of a motion to dismiss the indictment for noncompliance with the statutory jury selection procedures. United States v. Mitchell, 397 F. Supp. 166, 175 (D.D.C. 1974); United States v. Stephens, 315 F. Supp. 1008, 1009 (W.D.Okla. 1970).
The Fifth Amendment to the Constitution has been held to require that no group in the community be excluded unjustly from grand jury service and that a grand jury panel shall constitute a fair cross-section of the judicial district from which it is chosen. United States v. Leonetti, 291 F. Supp. 461, 473 & n.3 (S.D.N.Y. 1968), approved in United States v. Bennett, 409 F.2d 888, 892-893 (2d Cir.), cert. denied, 396 U.S. 852, 90 S. Ct. 113, 24 L. Ed. 2d 101 (1969); International Longshoremen's & Warehousemen's Union v. Ackerman, 82 F. Supp. 65, 122 (D.Hawaii 1948) (Biggs, J.), rev'd on other grounds, 187 F.2d 860 (9th Cir.), cert. denied, 342 U.S. 859, 96 L. Ed. 646, 72 S. Ct. 85 (1951). This Court need not decide the "difficult question" of whether failure to comply with the requirements set forth in 28 U.S.C. § 1867 for a statutory challenge to the grand jury selection procedures should also bar a constitutional challenge in the same action. See Virgin Islands v. Navarro, 513 F.2d 11, 18-19 & n.5 (3d Cir.), cert. denied, 422 U.S. 1045, 45 L. Ed. 2d 698, 95 S. Ct. 2662 (1975). Assuming, arguendo, that the constitutional challenge may properly be made here, the Court believes that it is without merit.
In United States v. Dellinger, 472 F.2d 340 (7th Cir. 1972), cert. denied, 410 U.S. 970, 35 L. Ed. 2d 706, 93 S. Ct. 1443 (1973), the defendants moved for a dismissal of the indictment on the ground that the grand jury was improperly selected. Their objection was based on the use of lists of voters (registered or actual) as the source of names for selection. The language of the court concerning its rejection of the defendants' constitutional challenge is sufficient answer to the motion here under consideration:
Feasibility makes reliance on voter lists attractive. They contain a large if not precisely perfect sample of the qualified residents of an area, reflecting all the varying attitudes relevant to the grand jury function which such residents hold. Among persons qualified to vote, and absent discriminatory practices in administering the election system, not demonstrated here, the voter list is open as a matter of choice. The choice of the voter list as the source of names for jury selection is surely not invidious discrimination, except where the list itself reflects discriminatory practices.
. . . [We] are not prepared to say that the use of the voter list per se results in distortion of a perfect cross section sufficient to render an indictment constitutionally invalid. 472 F.2d at 366.