Wharton’s Rule

  1. militarydefenselawyers418Some offenses require two or more culpable actors acting in concert. There can beno conspiracy where the agreement exists only between the persons necessary to commit such an offense. Examples include dueling, bigamy, incest, adultery, and bribery. MCM, pt. IV,  5c(3).
  2. Iannelli v. United States , 420 U.S. 770, 782-86 (1975). Defendant and seven others were convicted of conspiracy to violate and violating 18 U.S.C. § 1955, a federal statute making it a crime for five or more persons to operate a prohibited gambling business. Convictions for both offenses were affirmed. Wharton’s Rule “has current vitality only as a judicial presumption, to be applied in the absence of legislative intent to the contrary. The classic Wharton’s Rule offenses—adultery, incest, bigamy, dueling—are crimes that are characterized by the general congruence of the agreement and the completed substantive offense. The parties to the agreement are the only persons who participate in commission of the substantive offense, and the immediate consequences of the crime rest on the parties themselves rather than society at large.”
  3. Rule does not apply where the substantive offense does not demand concertedcriminal activity, such as drug use or distribution. United States v. Crocker, 18 M.J. 33, 38-39 (C.M.A. 1984) (drug distribution); United States v. Johnson , 58 M.J. 509 (N-M. Ct. Crim. App. 2003) (drug use); United States v. Osthoff , 8 M.J. 629 (A.C.M.R. 1979).
  4. Rule does not apply when the conspiracy involves the cooperation of a greater number of persons than is required for commission of the substantive offense. See United States v. Crocker , 18 M.J. 33, 38 (C.M.A. 1984) (affirming conspiracy conviction where accused accepted money and agreed to buy drugs for another airman on a trip to Amsterdam; Wharton’s Rule did not apply because only one party to a drug distribution need have a criminal intent); United States v. Jiles , 51 M.J. 583 (N.M. Ct. Crim. App. 1999) (holding Wharton’s Rule did not apply to conspiracy to distribute marijuana).
  5. But see United States v. Parada , 54 M.J. 730 (C.G. Ct. Crim. App. 2001)(Application of Wharton’s Rule to drug offenses is a highly fact-dependent determination in which the extent of the enterprise in time and reach are prime considerations. Conspiracy to distribute marijuana where the only parties involved were the accused, who mailed the drugs, and his friend, who received them, was unnecessary “piling-on” of charges); United States v. Viser , 27 M.J. 562 (A.C.M.R. 1988) (holding Wharton’s Rule does not apply to drug offenses).
  6. Wharton’s Rule does not apply to conspiracy to violate an anti-black marketingregulation. United States v. Wood , 7 M.J. 885 (A.F.C.M.R. 1979) (reasoning that the regulation could be violated by one person).

anti-black marketing regulation

Iannelli v. United States