Edwin P. WILSON and Erik S. Wilson, Defendants
United States District Court,
565 F. Supp. 1416 (1983)


 EDWARD WEINFELD, District Judge.

 The defendant, Edwin P. Wilson ("Wilson"), is named in all seventeen counts of an indictment and Erik S. Wilson, his son, is named in fifteen, all of which center about charges that while Wilson was in custody at the Metropolitan Correction Center ("MCC") New York, New York within this district he plotted, aided and abetted by his son, to cause the murder of witnesses and prospective witnesses in prosecutions against him in the United States District Courts for the Southern District of Texas, the Eastern District of Virginia and the District of Columbia, as well as the murder of two Assistant United States Attorneys who were in charge of the prosecution in the District of Columbia, and other persons.  Wilson has since been convicted in the Districts of Texas and Virginia and is serving respective cumulative sentences of seventeen and fifteen years.  He was acquitted of the charges against him in the District of Columbia.

 The indictment charges that in and around November and December 1982 and early January 1983, during Wilson's detention at the MCC pending his upcoming trials and after sentence had been imposed in a concluded trial where he was found guilty, he met Wayne Trimmer ("Trimmer"), a fellow inmate at the MCC, there in custody under sentences imposed pursuant to New York state judgments of conviction for murder and prison escape;  that Wilson solicited Trimmer's assistance in carrying out his plan to kill the witnesses, the two Assistant United States Attorneys and other persons in return for a substantial sum of money;  that his proposal included Trimmer's providing an assassin, or a "hit man," to kill the intended victims for payments ranging in each instance from $50,000 to $500,000;  that Trimmer, who at that time had been cooperating with federal and state authorities on other and unrelated matters, reported Wilson's proposal to the Federal Bureau of Investigation, who assigned one of its agents to act in an undercover capacity as the hit man under the name of Tony [p. 1421] DeAngelo ("DeAngelo");  that Trimmer introduced the agent, posing as the "hit man" and under his assumed name, to Wilson;  that thereafter, apart from various alleged overt acts, Wilson at the MCC identified DeAngelo to his son, who subsequently paid $9800 cash to DeAngelo as a down payment for the first killing.

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 [T]he defendant is charged with the assimilated crime of solicitation of murder under New York law.  This count charges that the defendant solicited, and attempted to cause, government informer Wayne Trimmer and FBI agent DeAngelo to murder eight individuals:  the six witnesses and the two Assistant United States Attorneys.  Section 100.20 of the New York Penal Law provides that "[a] person is not guilty of criminal solicitation when his solicitation constitutes conduct of a kind that is necessarily incidental to the commission of the crime [charged]."  Defendant argues that because he is charged with a conspiracy to murder the witnesses and prosecutors, which necessarily involved the solicitation of co-conspirators, prosecution under this count is "absolutely barred."  Here the defendant invokes the well known Wharton's Rule, applicable to certain offenses such as bribery, adultery, bigamy and other offenses which necessarily require the participation of two persons and where the concert of action is merged in the commission of the substantive offense.  However, the Rule is inapplicable here.  An act of solicitation may be performed by a single individual;  it does not require the cooperation of another person.  Here the defendant is only charged with soliciting Trimmer and DeAngelo and is not nor could be charged with conspiring with them because they are government agents.  Because other overt acts are alleged in the conspiracy count, Wilson's alleged solicitation of the government agents is not, as New York law requires, "necessarily incidental" to a conviction thereunder.  Thus there is no bar to prosecution under both statutes, although one may question, in view of the number of counts, why it was necessary to add another.

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