text:
    UNITED STATES of America, Plaintiff-Appellee, v. Teodulo DIAZ-RODRIGUEZ, Defendant-Appellant (two cases).
    Nos. 72-2436, 72-2624.
    United States Court of Appeals, Ninth Circuit.
    April 26, 1973.
    Certiorari Dismissed June 19, 1973. See 93 S.Ct. 3024.

      Joseph Milehen (argued) Mclnerney, Milchen & Frank, San Diego, Cal., for defendant-appellant.
    Matthew T. Kissane, Asst. U. S. Atty. (argued), Harry D. Steward, U. S. Atty., Douglas G. Hendricks, Stephen G. Nelson, Asst. U. S. Attys., San Deigo, Cal., for plaintiff-appellee.
    Before CHAMBERS and BARNES, Circuit Judges, and LUCAS, District Judge.
   PER CURIAM:

These appeals are from Diaz’ conviction of one count of conspiracy to violate the immigration laws, under 18 U.S.C. § 371 and 8 U.S.C. § 1324, and of twenty-two substantive counts of harboring aliens illegally, under 8 U.S.C. § 1324(a)(3), and from the district court’s denial of his motion for a new trial subsequent to those convictions.

The Government alleged a conspiracy to introduce aliens unlawfully into the United States, and to harbor them at Diaz’ place of residence in San Diego preparatory to further transportation of the aliens to the Los Angeles area. The evidence adduced, which was directly contradicted in part at trial, demonstrated that Diaz participated in the harboring of the unlawfully admitted aliens at his residence on April 14-15, 1972 under a prior agreement made with three co-conspirators.

The sole issue on appeal as to the merits of the judgment of conviction is whether the district court erred in commenting on the evidence while instructing the jury. A Federal court judge has full discretionary power to offer observations on the evidence during instructions if it is clearly demonstrated that the jury has the exclusive function of making the final finding as to the facts. See Duke v. United States, 255 F.2d 721, 728 (9th Cir., 1958); cert. denied 357 U.S. 920, 78 S.Ct. 1361, 2 L.Ed.2d 1365 (1958); Jones v. United States, 124 U.S.App.D.C. 83, 361 F.2d 537, 540 (1966); rehear, denied en banc (1966). Diaz isolates the district court’s comments pertaining to the evidence submitted supporting the existence of the conspiracy, and the overt act of the rented truck delivering the aliens to his residence. This isolation of these comments apart from the complete record of instruction is not an accurate interpretation of the scope and overall tenor of the district court’s communications to the jury. The district court deemed it to be its duty to focus in its comments and instructions upon the one element of the Government’s case which seemed to «be based on contradictory testimony and to be located at the center of the factual controversy — Diaz’ knowledge of the conspiracy and of the substantive violations. Any emphasis made upon those two elements in the instructions was more than compensated for by the subsequent and final admonition to the jury that it should disregard and reject the district court’s preliminary analysis of the evidence in the course of their deliberations. Thus, viewed on the whole, there is no indication that the district court abused its discretion, or otherwise sought to usurp the jury’s function as the ultimate finder of the facts.

With respect to the post-trial motion before the district court, Diaz raises two intimately related issues for ■ consideration. He alleges that newly discovered evidence in the form of a pretrial statement by a co-conspirator, undisclosed by the Government prior to and during the trial, necessitated a retrial, and that, alternatively, this statement was not merely cumulative or impeachment evidence, but bore directly upon the question of guilt or innocence and therefore necessitated a retrial. The substance of the statement was that, on the dates in question, the co-conspirator, Mireles, did not either see Diaz, or converse with him on the telephone as to their purported plans to transport the aliens. At trial, Diaz’ counsel was finally notified that Mireles would not be called as a witness. His trial counsel never made any request as to any statements the co-conspirator might have made to the Government. After the trial, Diaz’ counsel learned for the first time, through a third party, of the co-conspirator’s statements. A subsequent interview with Mireles by Diaz’ counsel corroborated this statement as to the absence of involvement on the part of Diaz in the activities on the dates in question.

The standard for review of an order denying a motion for a new trial on the ground of newly discovered evidence is very narrow.

“ ‘The generally held essentials for a new trial based on newly discovered evidence are the following: (1) the evidence must have been discovered since the trial; (2) it must be material to the factual issues at the trial, and not merely cumulative nor impeaching the character or credit of a witness; (3) it must be of such a nature that it would probably produce a different verdict in the event of a retrial. United States v. Costello, 255 F.2d 876 (2 Cir.), cert. denied 357 U.S. 937, 78 S.Ct. 1385, 2 L.Ed.2d 1551 (1958).’” United States v. Durgin, 444 F.2d 308, 308-309 (9th Cir., 1971); cert. denied 404 U.S. 945, 92 S.Ct. 297, 30 L.Ed.2d 260 (1971) quoting United States v. Polisi, 416 F.2d 573, 576-577 (2nd Cir., 1969).

Exceptions to this general rule exist. The Government may not suppress evidence of an exculpatory or of an otherwise favorable nature where it is material to the issue of guilt, irrespective of the good faith of the prosecution. Brady v. State of Maryland, 373 U.S. 83, 87-88, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). A test has been phrased whether the undisclosed evidence was so critical that its absence prevented the defendant from receiving a fair trial under the Constitution. United States v. Hibler, 463 F.2d 455, 459 (9th Cir., 1972). But materiality — the existence of prejudice — is essential. A new trial is not automatically required whenever the prosecution’s files subsequently reveals evidence of possible utility to the defense but of unlikely weight in altering the verdict. Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Diaz concedes that it would have been improper to have Mireles take the stand in any event — thus, a substantial question of the utility of the pretrial statement exists. More importantly, however, there was independent evidence tending to corroborate Danner’s story as to Diaz’ complicity — Diaz’ next-door neighbor observed the same various activities in and about the residence on the day in question. Cf. Gig-lio, supra, 405 U.S. at 154-155, 92 S.Ct. 763; Hibler, supra 463 F.2d at 458. Accordingly, Diaz’ argument for a new trial based not only upon the disclosure of new evidence, but upon the Government’s failure to disclose evidence of an exculpatory nature must fail. Since its conceded tendency was to implicate Diaz at least as to the conspiracy charge, its utility did not directly bear solely upon the question of guilt as to the substantive offense — thus, its purpose would more likely have been for limited impeachment purposes. Also, the neighbor’s independent testimony corroborating that of Danner’s as to Diaz’ complicity in the events on the dates in question distinguishes the facts and holdings in Giglio and Hibler. Accordingly, this Court cannot conclude that the admission of Mireles’ statements, even if that had been possible under the circumstances, would have been more likely to result in a different verdict in the event of retrial.

The judgment of conviction and the order denying the motion for a new trial are affirmed.

      . The district court made substantially the following findings of facts as to the controversial statement made by Mireles. In an interview with the Government’s attorney, Mireles said that he had met a man called “Shorty” in Mexico who told him that he would be paid $200.00 to assist in an alien smuggling and transportation operation. Mireles had agreed, and Shorty had referred him and Danner, another co-conspirator, to Diaz. Mireles then went to Diaz’ residence, and identified himself as being sent by Shorty. Mireles said that Diaz was to be paid $30.00 for renting the house to be used for the alien smuggling operation. Mireles denied knowledge of how the aliens were guided across the border and brought to Diaz’ house, and yet he admitted participation in one prior trip with Danner involving the transportation of nineteen aliens to the Los Angeles area. He finally admitted that he only rented the truck for the occasion in question, and was not going to receive any profit from that particular venture. lie said that Danner drove the transport vehicle, Shorty arranged the overall operation, and Diaz provided the house for harboring the aliens — and that all he actually did was rent the truck. Mireles then said that he had not seen Diaz on the afternoon of April 14, 1972, and he denied having made any phone calls to Danner or Diaz on April 15, 1972. Mireles was willing to testify against Diaz, but the Government’s attorney told him and his counsel that he would not be used as a Government witness. Diaz’ trial attorney was never advised of this conversation with Mireles.

      . Danner testified to his arrest on April 15, 1972, while driving a rented truck carrying twenty-two aliens. He said that he had met Mireles in Tijuana, Mexico on April 14, and had agreed to drive the rented truck to a place in Orange County, California. Danner and Mireles then drove to Diaz’ residence where Mireles talked with Diaz. Mireles then told Danner that he was to pick up the aliens, and bring them back to the house. Danner drove the aliens across the border, with Mireles following in a separate vehicle. Danner then concealed the aliens in a shack at the rear of Diaz’ house. The next morning, on April 15, Diaz told Danner that Mireles had called him on the phone, and had advised him to wait until the highway checkpoint was more favorable for moving the aliens north. Subsequently, Mireles called and talked to Danner, advising him that the road was clear. Danner also testified to harboring aliens at Diaz’ house the previous week. On April 7, he had driven thirty-five aliens to the house where they stayed overnight before continuing on the next day.

      . Tlie neighbor testified to seeing a rented truck in Diaz’ backyard on April 15 and at several times the previous week. He also testified to seeing several individuals who looked like Mexicans being loaded into a truck that day from the small building in Diaz’ backyard.


source: Caselaw Access Project

author: INGRAHAM, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Mickey John RYAN, Defendant-Appellant.
    No. 72-2414.
    United States Court of Appeals, Fifth Circuit.
    May 15, 1973.

      Morton A. Orbach (Court-Appointed), Miami, Fla., for defendant-appellant.
    Robert W. Rust, U. S. Atty., Charles Farrar, Harold F. Keefe, Asst. U. S. Attys., Miami, Fla., for plaintiff-appel-lee.
    Before JONES, GODBOLD and IN-GRAHAM, Circuit Judges.
   INGRAHAM, Circuit Judge:

Defendant-appellant Mickey John Ryan appeals from his conviction by a jury of conspiring to violate and of violating 21 U.S.C. §§ 841(a)(1) and 846 and 18 U.S.C. § 2 in connection with his participation in a scheme to purchase and distribute cocaine. The most significant issue presented by this appeal is whether the trial court erred in allowing an agent of the Bureau of Narcotics and Dangerous Drugs (BNDD) to testify in court concerning an out-of-court voice identification of the defendant when the conversation which served as the basis for comparison, and hence the identification, contained incriminating statements obtained in violation of defendant’s Fifth Amendment rights as set out in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and applied by this court in United States v. Ramos, 448 F.2d 398 (5th Cir., 1971). The trial court did not err in allowing the identification testimony to go to the jury, and defendant’s other points of error are without merit. Ryan’s conviction is, therefore, affirmed.

I.

On March 11, 1972, BNDD Agent Constantine Kritikos, acting undercover, went to the residence of John Black in Apollo Beach, Florida, to negotiate for the purchase of cocaine. He was accompanied by a government informer. In the course of his conversation with Mr. Black, Kritikos learned that Black had a partner who was hiding in the bedroom. The partner was described as a thirty-three year old white man. Before leaving Black’s home Agent Kritikos was given a Miami telephone number to call regarding future cocaine transactions.

On March 14, 1972, about 7:30 in the evening, Agent Kritikos called the Miami number given him by John Black and asked to speak to Black. The person answering the phone identified himself as “Mickey, John’s partner,” and informed Kritikos that the pending cocaine transaction was moving along well and to call back at 9:30 that same evening. (This was the first contact between Agent Kritikos and the defendant Mickey Ryan, and this telephone conversation forms the basis upon which Kritikos was later able to identify Ryan’s voice.)

Later in the evening on March 14 Ryan was arrested at the Executive Inn Motel in Miami. The events leading to his arrest can be summarized briefly. BNDD undercover agents Baumwald and Starratt went to a room in the Executive Inn at 5 P.M. on the 14th and acquired a sample of cocaine from two persons, Runion and Price. The agents returned to the same room at 7 P.M. and purchased 234 grams of cocaine from the same two men. It was agreed that another sale would be made later that evening. At 11:45 P.M. the undercover agents returned to the room to make the final purchase. Runion and Price were present but the cocaine had not yet arrived. After a short wait someone knocked at the door and Runion left the room. Although' Agent Baumwald did not see an actual transfer of cocaine, defendant Ryan was observed standing outside the door in the motel hallway, and when Runion returned he had a package of cocaine with him. Ryan was arrested a few minutes later outside the motel.

After his arrest Ryan was taken to the BNDD office in Miami and was given Miranda warnings for at least the second time. He declined to sign a waiver of rights form. Agent Kritikos then asked the defendant several questions. The following are excerpts from the agent’s testimony which was taken outside the jury’s presence:

[Defense counsel]
“Q. Go ahead.
[Agent Kritikos]
A. I said, ‘You are Mickey?’ He said, ‘Yes.’ I said, ‘You’re John’s partner that came down from Apollo Beach,’ and I made a derogatory remark about the Buick they came down in. He said, ‘Yes.’ That’s all he said.
I asked him who was his connection for the cocaine. He wouldn’t say anything. I asked him where they were going to go with the money. He wouldn’t say anything. So with other questions along those lines, he wouldn’t answer them.
Now I asked him how old he was and he advised me that he was thirty-three. And then I said, ‘You’re John’s thirty-two year old partner ?’ He said, ‘Yes.’ . . .
[Government counsel]
Q. Then, is that when you asked him, ‘What’s your name ?
A. Yes, sir — No, sir. No. I said, ‘You’re Mickey?’ He said, ‘Yes.’
Q. And did you mention any telephone conversation you had with him ?
A. Yes, sir. I said — that’s right— ‘You’re the guy that talked to me on the phone. I’m Gus. Remember?’ And he said ‘Yes.’
Q. Then what did you say?
A. And ‘You’re the guy that came down with John from Apollo Beach in that beat up Buick.’ That — ■
Q. What did he say?
A. ‘Yes.’
Q. And then what did you ask him?
A. ‘How old are you?
Q. What did he say?
A. ‘Thirty-three.’
Q. What did you say then ?
A. ‘You’re the thirty-two year old partner of John’s that was up in the house hiding in the bedroom, is the way I put it, ‘in Apollo Beach.’
Q. What did he say?
A. ‘Yes.’ ”

II.

In United States v. Ramos, 448 F.2d 398 (5th Cir., 1971), we held that incriminating statements made in response to government instigated interrogation, after defendant’s refusal to sign a waiver of rights form, were inadmissible. A government investigator is Miranda bound to cease interrogation once the defendant indicates that he wishes to remain silent. Miranda v. Arizona, supra, 384 U.S. at 473-474, 86 S.Ct. 1602; United States v. Ramos, supra, 448 F.2d at 399. See United States v. Phelps, 443 F.2d 246 (5th Cir., 1971). The trial court properly ruled that Ryan’s answers to the questions asked by Agent Kritikos were inadmissible under this standard. Ryan’s answers were incriminating admissions obtained as a result of government instigated interrogation after Ryan had refused to sign a waiver of rights form.

We are not faced with the precise Ramos problem, however, because the agent’s questions and Ryan’s answers were not admitted into evidence. The narrow question is whether these incriminating statements could be part of a voice exemplar used for identification purposes.

III.

Our analysis begins with the row settled proposition that a defendant can be compelled to give a voice exemplar without any violation of his Fifth Amendment protection against self-incrimination. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1972) [1972]; United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1972). See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263 (1967); Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1967); United States v. Sanders, 477 F.2d 112 (5th Cir., 1973); United States v. Walker, 453 F.2d 1205 (5th Cir., 1972). If Agent Kritikos had talked to Ryan about the weather or some other equally innocuous subject, and based his voice identification on that conversation, we would have no trouble upholding the identification. The peculiar problem here is that Ryan’s answers to the pointed questions asked by Agent Kritikos tended to confirm that he was, in all probability, the same man Kritikos had talked with just six hours earlier on the telephone. The crux of the issue is, therefore, whether the agent’s identification was based on the content rather than the sound of his conversation with Ryan.

The answer to this question turns on the credibility accorded the agent’s testimony, heard outside the presence of the jury, that his identification was founded on the sound of Ryan’s voice rather than the communicative aspects of the conversation. We assume, as did the trial court, that Ramos would preclude the introduction of in-court identification testimony had the court determined that the identification was the product of the communicative nature of the conversation. The court concluded, however, that the out-of-court identification was the product of a voice comparison. We have examined the record in this case and hold that this finding is not clearly erroneous. The lower court had the benefit of observing Agent Kritikos on the witness stand and of examining him first hand to test the basis for his identification. Under close questioning by the court and by both government and defense counsel, Agent Kritikos maintained, and gave sufficient support for, his position that his identification was based on the sound of defendant’s voice. On this record the court’s decision to credit the agent’s testimony is not clearly erroneous. There is therefore no basis on which the agent’s testimony should have been excluded because the identification was not the result of the Ramos proscribed questioning.

IV.

For purposes of judicial economy — and in the likely event that Ryan will at some time seek relief under § 2255 — we think it appropriate to comment on several related issues not raised directly by defendant’s appellate brief. After Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed. 411 (1972), it is apparent that Ryan did not have a right to the presence of counsel at the pre-indictment confrontation with Agent Kritikos. Kirby holds that pre-indictment confrontations are not “critical stages” of the prosecution at which the presence of counsel is constitutionally required. But, the absence of a requirement for counsel does not remove the defendant from the broad protection of the due process clause. The Kirby Court explicitly recognized this principle when it stated:

“What has been said is not to suggest that there may not be occasions during the course of a criminal investigation when the police do abuse identification procedures. Such abuses are not beyond the reach of the Constitution.”

Id. at 690, 92 S.Ct. at 1883.

The Court then reiterated its view that “it is always necessary to ‘scrutinize any pretrial confrontation . . . . ’” 406 U.S. at 690-691, 92 S.Ct. at 1883, citing United States v. Wade, 388 U.S. at 227, 87 S.Ct. 1926. The standard on which to scrutinize pretrial confrontations is found, according to Kirby, in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). The Stovall standard has its foundation in the due process clause of the Fifth and Fourteenth Amendments. If pretrial confrontation procedures are “unnecessarily suggestive and conducive to irreparable mistaken identification,” then they violate due process of law. 388 U.S. at 302, 87 S.Ct. at 1972. The thrust of this due process protection is to assure against pretrial confrontation procedures which may lead to a mistaken identification of a defendant. The pretrial confrontation in the instant case was not conducive to a mistaken identification of defendant Ryan as a participant in the cocaine distribution scheme. For this reason Ryan cannot look to the rationale underlying Stovall for a basis upon which to assert that the identification testimony here should have been excluded.

V.

Ryan’s other assertions of error are without merit. In United States v. Amando Lopez, 459 F.2d 949 (5th Cir., 1972), we held that 18 U.S.C. §§ 841(a) (1) and 846 were constitutional. Congress did not exceed its constitutional power “by creating federal narcotics offenses that do not require proof of a specific nexus with interstate commerce as a prerequisite for conviction.” United States v. Alberto Lopez, 461 F.2d 499, 500 (5th Cir., 1972). The rationale for this holding is that it would be a futile exercise to attempt to separate intrastate from interstate activities, and that such an attempt would substantially interfere with and obstruct the power of Congress to regulate interstate commerce. 459 F.2d at 951. See Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1961).

Count One of the indictment, the conspiracy count, charged that Ryan had “a .tacit understanding” with several other persons to violate the previously discussed statutes. Ryan seems to argue that a tacit agreement cannot be an element of conspiracy and thus Count One is insufficient and should have been dismissed. The basis for this position appears to be the erroneous notion that the conspiracy must be bottomed on an actual overt agreement to commit a crime. Defendant also appears concerned that because the dictionary definition of “tacit” implies something done in silence, without words, he could be convicted for an unknowing participation in a criminal scheme. This latter concern is unfounded. The indictment charged that Ryan “knowingly, intentionally, and willfully” conspired with others to violate the statute. Furthermore, the court’s jury instructions carefully emphasized that Ryan’s participation in the criminal activity had to be knowing and intentional. Finally, it is unnecessary for a conspiracy to be bottomed on an express or formal agreement. Oral statements of agreement are equally unnecessary. It is enough if a conspiracy to commit a crime can be inferred from .the circumstances present in a given case.

Ryan next contends that the trial court erred while instructing the jury on intent. The court stated:

“Intent, ordinarily may not be proved directly. There is no way of fathoming the operations of the human mind. You may infer the defendant’s intent from the surrounding circumstances. You may consider any statement made or omitted by the defendant at the time; and 1 don’t think there is any particular evidence of any statement. You may consider all the facts and all the circumstances in evidence from which you may be able to arrive at your conclusion following the charges of law as to the intent at the time.” (Emphasis supplied,)

Ryan objects to the italicized portion of this statement. He argues that it was a comment on his silence at the time of his arrest and on his failure to testify, thus violating his Fifth Amendment right against self-incrimination. Assuming arguendo that .the charge was erroneous in the first instance, the court cured the error when, after suggestion by defense counsel, it clarified the statement to the jury by explaining that a defendant has no duty to make a statement.

When considering possible error in a court’s charge, the reviewing court must examine the charge in its totality and should not isolate possible erroneous statements from the context in which they were made. We have examined the entirety of the court’s charge here and find it completely fair to the defendant. Any prejudice flowing from the attacked portion of the charge was inconsequential when viewed against the charge as a whole.

Finally, Ryan argues that the court should have required the government to disclose the name of the government informer who accompanied Agent Kritikos to John Black’s residence on March 11. The court informed defendant’s counsel that it would require the government to produce the informer if he so desired. The record reveals that counsel decided, after consulting with the defendant, that the delay which would have resulted from producing the informer was not worth having the informer present. The court was sufficiently accommodating to the interests of the defendant. Its decision not to disclose the name of the informer was, on the facts here, a proper place to strike the balance between the government’s need to keep an informant secret (both for the government’s and the informer’s sake) and the defendant’s desire to know more about the informant.

' The defendant’s conviction is in all respects affirmed.

      . Sec. 841(a)(1) provides:
      “(a) Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally—
      “(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.”
      Sec. 846 provides:
      “Any person who attempts or conspires to commit any offense defined in this subchapter is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.”

      . This statute provides :
      “(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
      “(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.”

      . Other issues will be discussed infra.

      . Ryan makes an unconvincing argument that there was not probable cause for his arrest. We hold that probable cause was established because the arresting officers were aware of the following facts:
      (1) that Black was working with a partner; (2) that Ryan had been seen with Black throughout the evening of March 14; (3) that Black and Ryan together had entered the motel just prior to the 7 P.M. transaction and (4) that Black and Ryan had entered had left shortly after its completion; the motel just prior to the midnight transaction; (5) that Price and Runion were waiting for delivery of the cocaine prior to the arrival of Black and Ryan at midnight; (6) that cocaine was transferred to Runion shortly after the arrival of Black and Ryan: (7) that either Black or Ryan had been seen carrying a brown overnight bag; (8) that Runion had obtained the cocaine for the midnight sale from someone just outside the motel room; (9) that Ryan was observed standing in the hallway just outside the motel room.

      . Compare United States v. Ramos, supra, with United States v. McDaniel, 463 F.2d 129 (5th Cir., 1972) ; United States v. Devall, 462 F.2d 137 (5th Cir., 1972) ; United States v. Tafoya 459 F.2d 424 (10th Cir., 1972). McDaniel, Devall and Tafoya teach that the Ramos rule is not to be applied per se. The question is whether the interrogation which occurs after the defendant’s refusal to sign the waiver form is government instigated.

      . This is exactly the procedure the agent should have followed in this case in his effort to make a voice identification. Our affirmance of Ryan’s conviction should not be considered as an approval of the agent’s conduct.

      . The following excerpts from the agent’s testimony establish a sufficient basis on which the trial court could conclude that the identification was the product of a voice comparison:
      “EXAMINATION [Out of jury’s presence]
      BY MR. ORBAOH :
      Q. Mr. Kritikos, at the headquarters, when you began speaking with Mr. Ryan, how did you know that it was Mr. Ryan?
      A. He identified himself to me.
      Q. That was the first question that you asked him, right?
      A. Yes, sir.
      Q. How did you know that he was the fellow that you spoke to on the phone ?
      A. I recognized his voice.
      Q. What was the first question you had asked him?
      A. “Are you Mickey?”
      I stated, “You are Mickey,” something like that.
      Q. You hadn’t heard his voice prior to that, had you?
      A. Just on the telephone.
      Q. Then he said, “I’m Mickey”?
      A. He said, ‘Yes.’
      Q. He said, ‘Yes.’?
      A. Yes.
      THE ■ COURT: What words have you heard this man speak other than on the telephone, as you say?
      THE WITNESS: After the three questions which he only answered, ‘Yes’, he advised me that he wasn’t going to answer any questions.
      THE COURT: What did he say?
      THE WITNESS: He said, T don’t know anything about any cocaine. I don’t know anything about a house in the Gables’ or — Yes. Well, he didn’t say, ‘Gables.’ Coconut Grove, I believe. He didn’t know anything about any dope; he doesn’t know anything about any Cuban connections.
      THE COURT: Did he say these things ?
      THE WITNESS: Yes, sir. And that’s it. All this only lasted five or ten minutes maximum.
      BY MR. ORBACH:
      Q. Let me ask you something. Was it helpful to you when this fellow said that he was Mickey and the guy who spoke to you, the guy who came down with John?
      A. Was it helpful?
      Q. Yes, in identifying him.
      A. Just the ‘Yes’ part, the one word?
      Q. No, the three questions, two or three questions that we are talking about.
      A. Was it helpful? That didn’t positively identify him for me, sir.
      Q. I didn’t ask you if it positively identified him. I assume this and the phone conversation, put the two together and you knew you had the right man.
      A. The conversation we had after this also.

        Q. The conversation also that followed?
      A. Yes, sir.
      Q. In other words, taking the whole thing in conjunction, there was no question but the fact that this was the same guy that you spoke to over the phone previously the past day?
      A. Yes, six hours before.
      Q. The first two questions of the identification and the fact that he was the one that spoke to you on the phone; right?
      A. Yes.
      Q. After the first two questions were you satisfied this was the same fellow that you spoke to over the phone?
      A. Not till we finished our conversation.
      Q. Of course by that time he was saying he didn’t want to talk to you.
      A. He didn’t want to answer specific questions that were directed to him.
      Q. Were you looking to have him admit that he spoke to you on the phone?
      A. After I spoke to the gentleman a few minutes I recognized his voice; right. That was already established.
      Q. You recognized his voice. You said a ‘few minutes.’ How much into the conversation had you gotten when you recognized his voice?
      A. I couldn’t say. The conversation only lasted ten minutes, maybe.
      Q. How far into the conversation would you say this is the same fellow I spoke to on the phone?

        A. A little more than half way through.
      Q. By that stage, what was lie saying to you when you first realized that this was the same guy that spoke to you?
      A. He didn’t know about any cocaine or any Cuban connections, like that. When lie was talking about Cuban connections, lie also was mentioning words we had used on the phone, saying the same words.”

      . “[A] claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it .” Stovall v. Denno, 388 U.S. 302, 87 S.Ct. 1972. For an excellent, practical guide to the problems encountered in pretrial confrontations which lead to identification, see Sobel, Eye-Witness Identification — Legal and Practical Problems (1972).

      . For an example of a charge that we held unfair, compare United States v. Williams, 473 F.2d 507 (5th Cir., 1973) [1973], and cases cited therein.


author: EUGENE A. WRIGHT, Circuit Judge:

text:
    The FORT MOJAVE TRIBE, By and Through its Tribal Council in Class Action on behalf of all members of said Tribe, Plaintiff-Appellant, v. William L. LAFOLLETTE et al., Defendants-Appellees.
    No. 71-1967.
    United States Court of Appeals, Ninth Circuit.
    May 16, 1973.

      Raymond C. Simpson (argued) of Simpson & Rehkop, Long Beach, Cal., Cox & Cox, Phoenix, Ariz., for plaintiff-appellant.
    David Freidenrich (argued), Palo Alto, Cal., William Elsing, Fennemore, Craig, von Ammon, & Udall, Phoenix, Ariz., Charles C. Graeber, Richard Mulligan, Lonergan, Jordan & Gresham, San Ber-nardino, Cal., Bryan R. McCarthy of Freitas, Allen, McCarthy, Bettini & McMahon, San Rafael, Cal., Collins & Wool-way, Dan Stroud, Los Angeles, Cal., for defendants-appellees.
    Dale Kent Frizzell, Asst. Atty. Gen., Dept, of Lands and Natural Resources, Glen R. Goodsell, Carl Strass, Edmund B. Clark, Dept, of Justice, Washington, D. C., for amicus curiae.
    Before HAMLIN, BROWNING, and WRIGHT, Circuit Judges.
   EUGENE A. WRIGHT, Circuit Judge:

This is an appeal from an order dismissing an amended complaint on the ground that the United States was an in-. dispensable party to the litigation. The appellant, an Indian tribe acknowledged by the government pursuant to statute [25 U.S.C. § 476], brought suit to quiet title as against claims of the defendants to land in Arizona. The complaint did not allege who was in possession but asserted that defendants made some claims adverse to the title of the tribe.

The tribe asserts a superior right under Executive Order No. 1296, February 2, 1911, by which the United States withdrew from settlement certain land in (the territory of) Arizona and set it apart

“as an addition to the present Fort Mojave Indian Reservation . . . , for the use and occupation of the Fort Mojave and such other Indians as the Secretary of the Interior may see fit to settle thereon.”

Defendants moved to dismiss the action on several grounds, including lack of subject matter jurisdiction and failure to join an indispensable party. The latter ground was the one relied upon by the district court in dismissing without prejudice. It was the view of the trial judge that the Executive Order did not transfer title and no trust patent had been issued to the land in question, leaving title in the government.

I.

THE INDISPENSABLE PARTY ISSUE

Without joining the United States, an Indian tribe may sue in its own right to protect its interest in restricted land. Choctaw & Chicasaw Nations v. Seitz, 193 F.2d 456 (10th Cir. 1951). It is of no consequence that no trust patent had been issued for the land involved. See Skokomish Indian Tribe v. France, 269 F.2d 555 (9th Cir. 1959).

As the United States will not be bound by any determination made in a suit to which it is not a party, United States v. Candelaria, 271 U.S. 432, 46 S.Ct. 561, 70 L.Ed. 1023 (1926),

“It does not appear that failure to join the United States would radically and injuriously affect its interest nor will a final determination be inconsistent with equity and good conscience.” Salt River Pima-Maricopa Indian Community v. Arizona Sand and Rock Co., 353 F.Supp. 1098, 1101 (D.Ariz.1972).

Our Skokomish decision is controlling here, and the order of dismissal was improper.

II.

JURISDICTION OF THE DISTRICT COURT

The appellant Indian tribe’s claim of federal jurisdiction is based on 28 U.S.C. § 1362. 3 Defendants argue that § 1362 retains the requirements for federal question jurisdiction that have been judicially engrafted onto 28 U.S.C. § 1331, and that these have not been met here.

It is doubtful that the requirements of § 1331 are met in the present case whether the plaintiff’s suit be styled as an action in ejectment or one to quiet title. But we agree with the dissenting opinion of Judge Lumbard in Oneida Indian Nation of New York State v. County of Oneida, 464 F.2d 916, 924 (2d Cir. 1972) that Congress intended by § 1362 to authorize an Indian tribe to bring suit in federal court to protect its federally derived property rights in those situations where the United States declines to act. Accord: Salt River Pima-Maricopa Indian Community v. Arizona Sand and Rock Company, supra,. As so interpreted the statute is clearly constitutional. Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 6 L.Ed. 204 (1824).

Scholder v. United States, 428 F.2d 1123, 1125 (9th Cir. 1970), and Quinault Band of Indians v. Gallagher, 368 F.2d 648, 656 (9th Cir. 1966), do not hold otherwise.

Reversed and remanded.

        . Defendants urge this court to uphold the order of dismissal on the grounds that the federal court in Arizona was without jurisdiction because the land in question was in California. Plaintiff replies that by virtue of the Interstate Compact Defining Boundary between the States of Arizona and California, approved by Congress August 11, 1966, 80 Stat. 340 the land is in Arizona. Obviously this is a factual question which should be resolved by the trial court in the first instance.

      . 28 U.S.C. § 1362 provides:
      “The district courts shall have original jurisdiction of all civil actions, brought by any Indian tribe or band with a governing body duly recognized by the Secretary of Interior, wherein the matter in controversy arises under the Constitution, laws, or treaties of the United States.”

      . The action was designated an action to quiet title but there is no allegation the plaintiff is presently in possession of the lands in controversy. If plaintiff is out of possession it has an adequate remedy at law in ejectment and an action to quiet title will not lie. Whitehead v. Shattuck, 138 U.S. 146, 11 S.Ct. 276, 34 L.Ed. 873 (1891) ; Oneida Indian Nation of New York State v. County of Oneida, 464 F.2d 916 (2d Cir. 1972) ; cf. Roubedeaux v. Quaker Oil & Gas Co., 23 F.2d 277 (10th Cir. 1927). But if the plaintiff’s proper remedy is an action in ejectment “a long and unbroken line of Supreme Court decisions holds that the complaint 'in such an action presents no federal question [under 28 U.S.C. § 1331] even when a plaintiff’s claim of right or title is founded on a federal statute, patent or treaty [cits omitted].” Oneida Indian Nation, supra at 920 of 464 F.2d.

      . While an action to quiet title will present a federal question under 28 U.S.C. § 1331 if the complaint alleges a substantial controversy between the parties regarding the interpretation or effect of federal law, Skokomish Indian Tribe v. France, 269 F.2d 555 (9th Cir. 1959), the present complaint includes no such allegation.
      “ [A] controversy in respect 'of lands has never been regarded as presenting a Federal question merely because one of the parties to it has derived his title under an act of Congress.” Shulthis v. McDougal, 225 U.S. 561, 32 S.Ct. 704, 56 L.Ed. 1205 (1912).


author: STEVENS, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Earl Christopher HUNTER et al., Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Hyland HILL, Defendant-Appellant.
    Nos. 72-1700, 72-1701.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 7, 1973.
    Decided April 11, 1973.
    Rehearing Denied June 13, 1973.

      James W. Bradford, James Manahan, William J. Dougherty, Indianapolis, Ind., for defendants-appellants.
    Stanley B. Miller, U. S. Atty., William F. Thompson, Asst. U. S. Atty., Indianapolis, Ind., for plaintiff-appellee.
    Before DUFFY, Senior Circuit Judge, and KILEY and STEVENS, Circuit Judges.
   STEVENS, Circuit Judge.

Fourteen defendants were indicted as joint participants in an Indianapolis gambling operation. Count I charged a conspiracy to conduct ah illegal gambling business in violation of 18 U.S.C. § 371; Count II charged that the same defendants engaged in the same illegal gambling business “in concert with each other” in violation of 18 U.S.C. § 1955. Shortly after the trial commenced, the charges against one defendant were dismissed and 11 defendants pleaded guilty. Appellants Hunter and Hill were tried and found guilty on both counts. Their appeals principally question: (1) the constitutionality of § 1955; (2) whether their gambling was “conducted by five or more persons” within the meaning of the statute; and (3) whether the two counts properly charged two different offenses.

I.

There is no evidence that appellants’ gambling activities had any effect whatsoever on interstate commerce. Accepting the government’s interpretation of the facts, however, their business was large enough to satisfy the minima specified in 18 U.S.C. § 1955. That statute, enacted on October 15, 1970, as § 803(a) of the Organized Crime Control Act of 1970, provides, in material part:

“§ 1955. Prohibition of illegal gambling businesses
“(a) Whoever conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling business shall be fined not more than $20,000 or imprisoned not more than five years, or both.
“(b) As used in this section—
“(1) ‘illegal gambling business’ means a gambling business which—
“(i) is a violation of the law of a State or political subdivision in which it is conducted;
“(ii) involves five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business; and
"(iii) has been or remains in substantially continuous operation for a period in excess of thirty days or has a gross revenue of $2,000 in any single day.” 84 Stat. 922, 937.

The Organized Crime Control Act contains a statement of findings relating to the impact of organized crime on the nation’s economy. See 84 Stat. 922-923. With respect to Title VIII dealing with syndicated gambling, Congress made a special finding “that illegal gambling involves widespread use of, and has an effect upon, interstate commerce and the facilities thereof.” 84 Stat. 936. It is fair to interpret the legislation as a whole as reflecting a broad finding by Congress that the class of gambling enterprises described in §1955 has a sufficient impact on the interstate economy to warrant prohibition by federal criminal legislation. As we interpret the holding in Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686, that finding, which we do not question, is sufficient to support the statute even when applied to individual members of the class whose own activities may not have any demonstrable impact on interstate commerce.2

United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488, and Rewis v. United States, 401 U.S. 808, 91 S.Ct. 1056, 28 L.Ed.2d 493, on which appellant Hunter relies, presented questions of statutory construction; in neither of those cases did the Court find a want of constitutional power to legislate. In short, we agree with the position uniformly adopted in other circuits on this constitutional issue. United States v. Becker, 461 F.2d 230, 233-234 (2d Cir. 1972); United States v. Harris, 460 F.2d 1041, 1043-1048 (5th Cir. 1972); United States v. Riehl, 460 F.2d 454, 458 (3rd Cir. 1972); Schneider v. United States, 459 F.2d 540 (8th Cir. 1972); United States v. Palmer, 465 F.2d 697 (6th Cir. 1972), cert. denied 409 U.S. 874, 93 S.Ct. 119, 34 L.Ed.2d 126.

II.

The contention that appellants’ gambling was not “conducted” by five or more persons raises a question of law and also a question of fact. They argue that the statutory language requires five persons in a supervisory or ownership capacity, and therefore mere runners, telephone clerks, salesmen, and the watchman may not be counted as part of the required five persons. They also argue that each of them conducted a separate business which did not, in any event, employ as many as five persons. We reject both arguments.

Our study of the legislative history persuades us that the substitution of the words “five or more persons who conduct, finance, manage, supervise, direct, or own” for the language in Senate Bill 30 which had referred to five or more •persons “who participate in the gambling activity” was merely designed to exclude customers of the illegal venture. As the House Committee Report stated, the term “conducts” is broad enough to include both “high level bosses and street level employees.” In short, we again accept Judge Mansfield’s analysis of the issue. See United States v. Becker, 461 F.2d 230, 232-233 (2d Cir. 1972).

Appellants’ claim that the record discloses three separate businesses rather than one is by no means frivolous. Three different kinds of lottery tickets —“dailies,” “moon and lightning tickets,” and “bank slips” — each owned by a different “banker,” were sold at the same place of business. Those premises were managed by two partners (Haering and Ferdinand) who employed about 12 persons in various capacities. Haering and Ferdinand were the proprietors of the “dailies” business and received a commission of 25% on gross sales of “moon and lightning tickets” and 35% on sales of “bank slips” made from their premises. Appellant Hunter owned the “moon and lightning” business and appellant Hill owned the “bank slips.” Hunter and Hill had no contact with one another, and each employed his own runners to make deliveries to, and pick-ups, from, the premises operated by Haering and Ferdinand.

In familiar commercial terms, Haer-ing and Ferdinand operated a retail outlet at which they sold their own product as well as the products of two other suppliers, Hunter and Hill. Although, as appellants plausibly argue, the three businesses are readily identifiable as separate commercial ventures, we are satisfied that the three entrepreneurs had a sufficient common interest in the development of sales, the maintenance of security, the efficient performance of services, and the solvency of all three ventures, to make it proper to regard them as a single criminal enterprise for purposes of the statutes here involved. Since it is fair to charge each of the three principals with knowledge of the basic features of the total operation, it was proper to treat Hunter and Hill as participants in the same venture even though they had no direct contact with one another.

We therefore conclude that all of the defendants participated in the same conspiracy charged in Count I of the indictment and in the same “illegal gambling business” charged in Count II. The question which remains is whether there was any material difference between that conspiracy and that illegal business.

III.

Two offenses may be separately prosecuted and punished if each requires proof of an element which the other does not. The Blockburger test, though easily stated, is sometimes difficult to apply. Thus, on facts comparable to those before us, the Second Circuit held that seven participants in an illegal gambling venture may be prosecuted both for conspiracy to violate § 1955 and for the violation of § 1955 itself, United States v. Becker, 461 F.2d 230, 234 (1972); whereas two district courts, relying on Wharton’s Rule, have reached a contrary result in cases involving thirteen and eight defendants, respectively, United States v. Greenberg, 334 F.Supp. 1092 (N.D.Ohio 1971); United States v. Fi-gueredo, 350 F.Supp. 1031 (M.D.Fla. 1972).

If a substantive offense may be committed by a single individual, a conspiracy to commit that offense, unlike an attempt, does not merge with the completed offense. This rule, which stems from the common law distinction between felonies and misdemeanors, is supported by the notion that conspiracy is an especially grave offense and is consistent with the constitutional objection to double jeopardy.

The rule is different, however, if the substantive offense requires the con-eerted action of two wrongdoers and they are indicted for both conspiracy and the completed crime. Neither history, policy, nor the Blockburger formula justifies two punishments of persons who both agree to engage, and do in fact engage, in acts such as adultery, bribery, or a prohibited rebate transaction In such cases a two-person conspiracy to commit a two-person crime is like an individual attempt to commit an individual offense.

It has been said, however, that the conspiracy to commit adultery is a separate offense when a third person participates in the arrangement; obviously, such a third party is a conspirator though not guilty of the substantive offense. The status of the two principal offenders is less clear; if their agreement encompassed only a single transaction, it is difficult to see why the involvement of the matchmaker should affect their own culpability. In any event, as we read the cases presenting the question whether the participants in a consummated multi-person offense may be charged with conspiracy, they do not turn on the number of participants in the conspiracy, but rather on whether or not the conspiracy charged depends on proof of an element which is not a part of the substantive offense.

State v. Clemenson, 123 Iowa 524, 99 N.W. 139 (1904), which is sometimes cited as an example of the “third person” exception to Wharton’s Rule, actually sustained a conspiracy charge against an adulterer because the consent of his partner was not an element of the substantive offense in Iowa. The Iowa court explained a different result reached in Pennsylvania and Alabama by the fact that the woman’s consent was an element of the substantive offense in those states.

The conspiracy allegations in United States v. New York Central & H. R. R. Co., 146 F. 298 (C.C.N.Y.1906) and United States v. Sager, 49 F.2d 725 (2d Cir. 1931), described agreements by more than two persons to commit substantive offenses which could be committed by only two. Those cases are thus analogous to a charge of conspiracy by more than five persons to violate 18 U. S.C. § 1955. In Sager, the conspiracy count alleged “concert between several intended givers of a bribe and the intended taker of the same bribe,” 49 F.2d at 727; in the New York Central case, the indictment charged “that seven persons named and others to the jurors unknown were parties to the conspiracy,” 146 F. at 304. Both multi-person situations fell within Judge Learned Hand’s statement that “when the crime, which is the object of the putative conspiracy, requires for its commission some reciprocal action of the conspirators indicted, they may not be indicted for conspiring to commit it if they have in fact consummated it. This is because the crime presupposed their mutual agreement which was therefore a part of it” United States v. Center Veal & Beef Co., 162 F.2d 766, 770 (2d Cir. 1947).

In his earlier opinion in United States v. Zeuli, 137 F.2d 845, 846 (2d Cir. 1943), Judge Hand had summarized the rule as follows:

“Lower Federal courts have several times decided that, if a crime necessarily involves the mutual cooperation of two persons, and if they have in fact committed the crime, they may not be convicted of a conspiracy to commit it. United States v. Dietrich, C.C.Neb., 126 F. 664 (Van Devanter and Munger, JJ.); United States v. New York Central & H. R. R. Co., C. C., 146 F. 298 (Holt, D. J.); United States v. Sager, 2 Cir., 49 F.2d 725, 727, 728. Although the Supreme Court has never actually so decided, it has twice clearly approved the doctrine; and we accept it as settled law. United States v. Katz, 271 U.S. 354, 355, 46 S.Ct. 513, 70 L.Ed. 986; Gebardi v. United States, 287 U.S. 112, 122, 53 S.Ct. 35, 77 L.Ed. 206, 84 A.L.R. 370. Therefore, if the conspiracy was confined to the transaction between Zeuli and Steneck by which the stolen books were sold, although both were guilty of the substantive crime, neither was' guilty of conspiracy. The indictment was not so confined; it laid a single conspiracy which comprehended not only the disposal of the books but the original theft of them. Such a conspiracy was not within the doctrine we have just mentioned, for it covered more than the crime of receiving.”

In the case before us, both alleged offenses require “the mutual cooperation” or the “reciprocal action” of a plurality of persons. The conspiracy charged in Count I is confined to the transactions described in Count II as a violation of § 1955; the conspiracy covers nothing more than the substantive crime committed by the conspirators. There is no suggestion that the proof of intent required for the violation of § 1955 is any different from the evidence required to sustain the charge of conspiracy.

It is true, as the government argues, that the conspiracy charge encompasses more than five persons, the number required.tor a violation of § 1955. It is also true, and equally significant, that the substantive charge encompasses more than two persons, the number required for a violation of § 371. But an argument which merely emphasizes the number of persons charged in the indictment does not identify an element of each offense which adequately differentiates the other. Two or more may be guilty of conspiracy; five or more may be guilty of either conspiracy or the substantive crime. But 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. We think this conclusion is a fair interpretation of congressional intent, is supported by the considerations which normally require that an attempt merge with a completed offense, and is consistent with the general rule that conspiracy is a crime separate from the individual substantive offense or offenses which the conspirators intended. We find “no ingredient in the conspiracy [charged in Count I] which is not present in the completed crime [charged in Count II].” Pinkerton v. United States, 328 U.S. 640, 643, 66 S.Ct. 1180, 1182, 90 L.Ed. 1489.

The judgment of conviction in Count I is reversed. In all other respects the judgments are affirmed.

      . Other contentions relate to the refusal to declare a mistrial when 11 defendants changed their pleas, the number of peremptory challenges, the admissibility of the government’s Exhibit 11, and the claimed variance under the reasoning of Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557. As the discussion in the text, infra, indicates, the last contention is met by our acceptance of the government’s view of the record as disclosing a single conspiracy. We find no merit in the other contentions.

      . As defined in the statute, “ ‘gambling’ includes but is not limited to pool-selling, book-making, maintaining slot machines, roulette wheels or dice tables, and conducting lotteries, policy, bolita or numbers games, or selling chances therein.” In this case appellants concede that their activities constituted “gambling” as so defined, and that they were conducted in violation of the law of Indiana.

      . “As pointed out in United States v. Darby, 312 U.S. 100 [61 S.Ct. 451, 85 L.Ed. 609], the decision sustaining an Act of Congress which prohibited the employment of workers in the production of goods ‘for interstate commerce’ at other than prescribed wages and hours, a class of activities was held properly regulated by Congress without proof that the particular intrastate activity against which a sanction was laid had an effect on eommeree.
      :]: * * * * “Where the class of activities is regulated and that class is within the reach of federal power, the courts have no power ‘to excise, as trivial, individual instances’ of the class. Maryland v. Wirtz, 392 U.S. 183, 193 [88 S.Ct. 2017, 20 L.Ed.2d 1020].
      “Extortionate credit transactions, though purely intrastate, may in the judgment of Congress affect interstate commerce. In an analogous situation, Mr. Justice Holmes, speaking for a unanimous Court, said: ‘[W]hen it is necessary in order to prevent an evil to make the law, embrace more than the precise thing to be prevented it may do so.’ Westfall v. United States, 274 U.S. 256, 259 [47 S.Ct. 629, 71 L.Ed. 1036].” Perez v. United States, 402 U.S. 146, 152-154, 91 S.Ct. 1357, 1361, 28 L.Ed.2d 686.

      . Finney, Newport, Peterson, Phelps and Willey sold bank slips; Porter, Warren and Board sold all three types of tickets. Blaine and Stewart were stationed at telephones to inform customers of winning numbers ; Anderson guarded the door and Taylor was the night watchman.

      . Kelly and Hanna served as intermediaries between Hunter, Haering and Ferdinand ; Jackson was the runner for Hill. Hunter had never even visited Haering’s premises; Hill had apparently been seen there on only one occasion.

      . Without burdening the opinion with financial detail, our study of government Exhibit 16 persuades us that none of the three businesses, if operated independently, would have supported the total operation described by the evidence.

      . “Bach of the offenses created requires proof of a different element. The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Gavieres v. United States, 220 U.S. 338, 342 [31 S.Ct. 421, 55 L.Ed. 489], and authorities cited” Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 520.

      . “Under the early common law, a conspiracy — which constituted a misdemean- or — was said to merge with the completed felony which was its object. See Commonwealth v. Kingsbury, 5 Mass. 106. This rule, however, was based upon significant procedural distinctions between misdemeanors and felonies. The defendant in a misdemeanor trial was entitled to counsel and a copy of the indictment; these advantages were unavailable on trial for a felony. King v. Westbeer, 1 Leach 12, 15, 168 Eng.Rep. 108, 110 (1739); see Clark and Marshall, Crimes, § 2.03, n. 96 (6th ed.). Therefore no conviction was permitted of a constituent misdemeanor upon an indictment for the felony. When the substantive crime was also a misdemeanor, People v. Mather, 4 Wend. 229, 265 (N.Y.), or when the conspiracy was defined by statute as a felony, State v. Mayberry, 48 Me. 218, 238, merger did not obtain. As these common-law procedure niceties disappeared, the merger concept lost significance, and today it has been abandoned. Queen v. Button, 11 Q. B. 929, 116 Eng.Rep. 720; Pinkerton v. United States, 328 U.S. 640 [66 S.Ct. 1180, 90 L.Ed. 1489].” Callanan v. United States, 364 U.S. 587, 589-590, 81 S.Ct. 321, 323, 5 L.Ed.2d 312. The offense charged in each count in this indictment is a felony punishable by imprisonment of not more than five years.

      . “We cannot agree that there is anything unreasonable, or inconsistent with the general policy of the Bankruptcy Act, in allowing a longer period for the prosecution of a conspiracy to violate one of its penal clauses than for the violation itself. 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.” United States v. Rabinowich, 238 U.S. 78, 88, 35 S.Ct. 682, 685, 59 L.Ed. 1211.
      See also Dennis v. United States, 341 U.S. 494, 573-574, 71 S.Ct. 857, 95 L.Ed. 1137 (Mr. Justice Jackson concurring)

      . Since the agreement between the conspirators is an ingredient “distinct from the completion of the unlawful project” itself, see Pinkerton v. United States, 328 U.S. 640, 644, 66 S.Ct. 1180, 1182, 90 L.Ed. 1489, and since the crime of conspiracy may be completed even though the project is unsuccessful, the Bloclcburger test is satisfied. This is not true, however, “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.” Id. at 643, 66 S.Ct. at 1182.

      . “It is the general rule that a conspiracy to commit a crime is a different offense from the crime which is the object of the conspiracy. * * *
      “There is excluded from the rule conspiracies to commit erimes which in their very nature require concerted action of all the participants. In such cases, the result has such a close connection with the objective offense as to be inseparable from it. United States v. Katz, 271 U.S. 354, 355, 46 S.Ct. 513, 70 L.Ed. 986; Lisansky v. United States, 4 Cir., 31 F.2d 846, 67 A.L.R. 67.” Freeman v. United States, 146 F.2d 978, 979 (6th Cir. 1945).

      . “In each of the cases of Shannon v. Commonwealth, 14 Pa. 226, and in Miles v. State, 58 Ala. 390, a man and woman were indicted for a conspiracy to commit adultery with each other. It was held in each case that the conspiracy' was the same thing as the substantive offense, and the indictments were quashed. Wharton, in commenting on these cases, says:
      “ ‘When the law says a combination between two persons to affect a particular end shall be called, if the end be effected by a certain name, it is not lawful for the prosecution to call it by some other name; and when the law says such an offense — e. g., adultery— shall have a certain punishment, it is not lawful for the prosecution to evade this limitation by indicting the offense as conspiracy. Of course, when the offense is not consummated, and the conspiracy is one which by evil means a combination of persons is employed to effectuate, this combination is of itself indictable, and hence persons combining to induce others to commit bigamy, adultery, incest, or duelling do not fall within this exception, and may be indicted for conspiracy.’ Wharton’s Crim.Law, § 1339.”
      United States v. New York Central & H. R. R. Co., 146 F. 298, 303 (C.C.N.Y. 1906).

      . “The agreement or transaction stated in this indictment was immediately and only between two persons, one charged with the intended taking and the other with the intended giving of the same bribe. Concert and plurality of agents in such an agreement or transaction are, in a sense, indispensable elements of the substantive offenses, defined in section 1781, of agreeing to receive a bribe and of agreeing to give one. A person cannot agree with himself, receive from himself, or give to himself. The concurrent and several acts of two persons aro necessary to the act of agreeing, receiving, or giving. In this respect, agreeing to receive a bribe from another and agreeing to give one are unlike soliciting or offering a bribe, because the solicitation or offer may be the act of a single person and may occur without any concurrent act of another.
      * * * *
      “Because concert and plurality of agents, in the sense we have hereinbefore shown, are essential to each of the offenses— there are two, not one — the commission of which is charged to have been the object of this so-called conspiracy, and because no other concert and plurality of agents are here charged, we are of opinion that the acts described in this indictment do not constitute a conspiracy under section 5440.” United States v. Dietrich, 126 F. 664, 667-668 (C.C.Neb.1904).

      . United States v. New York Central & H. R. R. Co., 146 F. 298 (C.C.N.Y.1906).

      . See Judge Krentzman’s discussion of the “third person” exception to Wharton’s Rule in United States v. Figueredo, 350 F.Supp. 1031, 1035 (M.D.Fla.1972).

      . “Nor is the consent of the female essential to constitute the crime. As adultery is a felony, then, and may be committed without the consent of the female, . . . there is no ground for saying that the offense may not be the subject of conspiracy.” 99 N.W. 139.

      . “This case is readily distinguishable from Shannon v. Com., 14 Pa. 226, and Miles v. State, 58 Ala. 390. In those decisions the agreement of a married woman to have intercourse with a man other than her husband was held not to amount to a conspiracy to commit adultery, for that the consent involved was a part of the offense itself.” Ibid.

      . Cf. United States v. Nasser, 476 F.2d 1111 (7th Cir. 1973) ; dissenting opinion page 1125.

      . One of the elements of the offense defined in 18 U.S.C. § 371 is that “two or more persons conspire. . . . ” The comparable language in the § 1955 definition of an illegal gambling business is that it involve “five or more persons.”

      . See United States v. Figueredo, 350 F.Supp. 1031, 1036 (M.D.Fla.1972) ; cf. United States v. Nasser, 476 F.2d 1111 at page 1120-1121 (7th Cir. 1973) ; Gebardi v. United States, 287 U.S. 112, 53 S.Ct. 35, 77 L.Ed. 206.