United States v. Frank Joseph Pezzino

Pezzino appeals from his conviction for violating 18 U.S.C. §§ 371 , 1084(a) and 1952(a).

He first contends that his conviction for conspiracy (§ 371) fails because Wharton’s Rule prevents him from being convicted for a conspiracy when the substantive offenses upon which it was based required concert of action between or among two or more persons. The argument is unavailing because the substantive offenses stated in sections 1084(a) and 1952(a) can be committed by a person acting alone as well as by persons acting in concert. For example, a bookmaker could be convicted for violating section 1084(a) if he used a telephone to lay off a bet even though his fellow gambler failed to answer the telephone, and he could violate section 1952(a) if he took a plane cross-country to pay off a bet, even if his payee turned out to be unavailable. A Wharton Rule challenge is determined by an analysis of the statute creating the substantive offense and not by the evidence introduced in a particular case to prove the offense. (Iannelli v. United States (1975) 420 U.S. 770 , 95 S.Ct. 1284 , 43 L.Ed.2d 616 ).

Next, Pezzino contends that the evidence was insufficient to support his…