138 F.2d 612 (8th Cir. 1943), 12467, Ellis v. United States

Docket Nº:12467, 12468.
Citation:138 F.2d 612
Party Name:ELLIS v. UNITED STATES (two cases).
Case Date:November 04, 1943
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 612

138 F.2d 612 (8th Cir. 1943)

ELLIS

v.

UNITED STATES (two cases).

Nos. 12467, 12468.

United States Court of Appeals, Eighth Circuit.

November 4, 1943

Appeal from the District Court of the United States for the Eastern District of Missouri; George H. Moore, Judge.

Page 613

R. R. Baynes, of New Madrid, Mo., for appellant Clarence Ellis.

Claudio Delitala, of St. Louis, Mo. (Stewart D. Flanagan, of St. Louis, Mo., on the brief), for appellant Cleatus Boone Ellis.

Harry C. Blanton, U.S. Atty., of Sikeston, Mo. (S. Russell Vandivort, Asst. U.S. Atty., of St. Louis, Mo., on the brief), for appellee.

Before SANBORN and RIDDICK, Circuit Judges, and DELEHANT, District Judge.

DELEHANT, District Judge.

The appellants were jointly indicted and tried in the District Court of the United States for the Eastern District of Missouri under an indictment in twenty-six counts, of which the first twenty-five charge the appellants jointly with the violation of 18 U.S.C.A. § 398. Reduced to their basic elements they involve three alleged incidents. Counts I to V inclusive charge both appellants with the transportation of a girl who, for the sake of convenience and restraint will be referred to as 'A', on an unidentified day in July, 1941 from a resort known as the 'Villa' near McClure, Illinois to Cape Girardeau County, Missouri, for the immoral purposes set out in the cited act. These five counts aver a single alleged transaction in a variety of forms, manifestly to support and meet conceivable testimony. Counts VI to X inclusive deal with the same incident, but charge the transportation of another girl who will be identified as 'B'. Counts XI to XV inclusive charge both appellants in various forms with the like illicit transportation of 'A' on an unidentified date in August or September, 1941 from New Madrid County, Missouri, to Reelfoot Lake, Tennessee. Counts XVI to XX inclusive similarly charge like and contemporaneous transportation of 'B'. Counts XXI to XXV inclusive charge the appellants jointly with similar transportation of 'A' only, on an unspecified day in November 1941, from New Madrid County, Missouri, to Reelfoot Lake, Tennessee. Thus, in the first two of the alleged journeys the transportation of both girls in involved and in the last it is asserted only that 'A' was transported. Count XXVI charges under 18 U.S.C.A. 88, a continuing conspiracy between the appellants to violate 18 U.S.C.A. 398 in the manner set out in the first twenty counts; and, besides the incidents involved in the substantive counts, avers several other overt acts in furtherance of the alleged conspiracy. Both appellants were found guilty upon each of the twenty-six counts of the indictment; and, thereupon, the trial court imposed on each appellant a sentence to imprisonment for five years upon each of the first twenty-five counts, to be served concurrently; and upon the twenty-sixth count to imprisonment for a further and nonconcurrent term of two years, and to the payment of a fine of five thousand dollars.

The two appellants prosecute separate appeals in these cases. Both have filed briefs; and oral argument was presented in behalf of the appellant in No. 12468, but not for the appellant in No. 12467.

At the close of the government's testimony upon the trial in the District Court each appellant separately moved for an instructed verdict of acquittal. These motions were denied and overruled; upon which the appellants severally rested without the introduction of any testimony in their behalf; and after oral argument, the case was submitted to the jury under the court's charge, to which no exception was taken.

The question primarily before us in each appeal is whether there was sufficient competent evidence before the trial court to sustain a verdict of guilty (a) upon one or more of the first twenty-five counts, the sentences thereunder having been prescribed for concurrent service; and (b) upon the twenty-sixth count. This question involves certain issues touching the reception of testimony, and especially an examination of the evidence, which must be made with full understanding that the gist of the offense defined by 18 U.S.C.A. § 398 is not the ultimate immoral design charged against the defendant, which, in its conception and achievement, is actually his major transgression, but rather the narrow act of the knowing transportation or causing, or aiding or assisting in the transportation in interstate commerce of any woman or girl with such immoral design. Hoke v. United States, 227 U.S. 308, 320, 33 S.Ct. 281, 57 L.Ed. 523, 23 L.R.A., N.S., 906, Ann. Cas. 1913E, 905; Athanasaw v. United States, 227 U.S. 326, 332, 33 S.Ct. 285, 57 L.Ed. 528, Ann. Cas. 1913E, 911; Wilson v. United States, 232 U.S. 563, 571, 34 S.Ct. 347, 58 L.Ed. 728; Roark v. United States, 8 Cir., 17 F.2d 570, 573; Drossos v. United States, 8 Cir., 16 F.2d 833, 834; Tedesco v. United States, 9 Cir., 118 F.2d 737, 741.

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So, however immoral may be a defendant's conduct, it is beyond federal punishment in the absence of the essential factor of interstate transportation in furtherance of such conduct.

Without unnecessary particularization, it may be noted that the evidence shows, on the part of both appellants over a substantial period of time, including the months mentioned in the indictment, a history of brazenly lascivious conduct, chiefly, though not entirely, with the two girls mentioned in the indictment. The appellants are cousins of each other, married men more than thirty years of age, each of whom has and at all material times had a child. During the period involved each was separately engaged in the operation in or near a separate town on highway 61 in southeastern Missouri of a roadside service station cabin camp and restaurant facilities and each owned and operated a new automobile. One of the girls named in the indictment was fifteen years old the other sixteen. Both were high school students. Much of the testimony in the case is devoted to the disclosure of appointed meetings and automobile rides, furtive loitering in lanes and unfrequented places, the occupancy of cabins in roadside camps for betraying intervals and at telltale hours, and to the direct narration of illicit relations between the appellant, Clarence Ellis, and the girl 'A' on the one hand, and the appellant, Cleatus Ellis, and the girl 'B' on the other hand. One of the appellants is shown twice during the period under inquiry to have accomplished the sexual violation of other teenage girls, once through intimidation of one victim with a pistol held at her side, the other time through the cooperative physical restraint of another victim by one of the female employees at his place of business. The two girls identified in the indictment seem to have cooperated readily with their respective partners in their sordid relations, and to have been the recipients of sporadic gifts of clothing and money from the respective men, though there is no indication that their favors were procured on a stable commercial basis.

But apart from a suspicious visit by the appellant, Cleatus Ellis, to 'B' in the state of Michigan involving no violation of a federal statute, the foregoing incidents were strictly intrastate transactions occurring entirely within a narrowly circumscribed area in Southeastern Missouri. Upon this account, evidence touching them was objected to as irrelevant to the charges made in the indictment; and error is assigned because of its reception. The evidence was properly received upon the element of intent, as a reflection of the lustful impulse which prompted each of the appellants during the precise interval of time involved to associate with the one of the girls who was quite regularly in his company. Tinsley v. United States, 8 Cir., 43 F.2d 890, 893; Neff v. United States, 8 Cir., 105 F.2d 688, 692; Cohen v. United States, 5 Cir., 120 F.2d 139; Baish v. United States, 10 Cir., 90 F.2d 988.

Touching the alleged interstate transportation between the states of Illinois and Missouri, and apart from the testimony of the girl 'B' which requires separate consideration, there was actually no testimony at all. One Richardson, as a witness for the government, did testify that once in the month of December 1941, he and Clarence Ellis and the girls, 'A' and 'B' drove from Marston, Missouri, to 'The Villa', near McClure, Illinois, and thence back to Marston; that the journey took place between 8:30 p.m. and 1 a.m.; that the men while at 'The Villa' gambled with dice and the girls played a mechanical musical device and possibly danced; and that the trip involved no other incident. In this testimony he was corroborated by the girl 'B'. But that journey was months after the alleged trip involved in the first ten counts of the indictment; was made without the participation of the appellant, Cleatus Ellis; and is clearly not proof of any specific act of interstate traffic charged in the indictment.

There was somewhat more evidence of travel by some of the designated parties from New Madrid County, Missouri, to Reelfoot Lake, Tennessee. A woman and her son gave testimony indicating that on the afternoon of the Saturday before Thanksgiving day in 1941 the woman saw Clarence Ellis and the girl 'A' in the former's automobile, approaching the Missouri side of a ferry across the Mississippi river at Point Pleasant, Missouri, and the boy saw them later proceeding off the ferry at its Tennessee terminus. But there the testimony respecting the journey ended. Reelfoot Lake is some eight or ten miles distant from the Tennessee end of the ferry and there is no testimony respecting the rest of the trip of the two persons

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in the automobile or indicating either its destination or its purpose. An eighteen year old...

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