146 F.2d 730 (10th Cir. 1945), 2945, Cleveland v. United States

Docket Nº:2945-2955.
Citation:146 F.2d 730
Party Name:CLEVELAND v. UNITED STATES and ten other cases.
Case Date:January 04, 1945
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 730

146 F.2d 730 (10th Cir. 1945)



UNITED STATES and ten other cases.

Nos. 2945-2955.

United States Court of Appeals, Tenth Circuit.

January 4, 1945

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Claude T. Barnes and Edwin D. Hatch, both of Salt Lake City, Utah (J. H. McKnight and Knox Patterson, both of Salt Lake City, Utah, on the brief), for appellants.

John S. Boyden, Asst. U.S. Atty., of Salt Lake City, Utah (Dan B. Shields, U.S. Atty., and Scott M. Matheson, Asst. U.S. Atty., both of Salt Lake City, Utah, on the brief), for appellee.

Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.

BRATTON, Circuit Judge.

Six indictments were returned in the United States Court for Utah, five drawn under section 2 of the Mann Act, 18 U.S.C.A. § 398, and one drawn under section 3 of the Kidnapping Act, as amended, 18 U.S.C.A. § 408a. The indictment in one case drawn under the Mann Act charged that Heber Kimball Cleveland transported a certain woman, net then his wife, in interstate commerce from Salt Lake City, Utah, to Evanston, Wyoming, for the purpose of debauchery, and for the further immoral purpose of having sexual intercourse with her. The other indictments drawn under the Mann Act contained like charges, varying only in name of the accused, name of the woman transported, date, and points of origin and termination respectively of the transportation. The indictment drawn under the Kidnapping Act charged that the defendants transported, caused to be transported, and aided and abetted in transporting a certain girl in interstate commerce from Provo, Utah, by way of El Paso, Texas, to Short Creek, Arizona, well knowing her to have been inveigled, decoyed, carried away, and held. After trial by jury had been waived, the cases were submitted to the court on stipulated facts. The court found the defendant or defendants in each case guilty as charged in the indictment; and from the sentences imposed, separate appeals were perfected but the cases were briefed and argued together.

A detailed statement of the particular facts in each case would not serve any useful purpose. In most of the cases involving

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the charge of violating the Mann Act, the defendant was married; while married to his lawful wife, he and the woman named in the indictment went through a ceremony known in the religious cult of Fundamentalists as a plural or celestial marriage; after the ceremony they went into another state for the purpose of living and cohabiting together; and they did live and cohabit together there. In one case, the defendant, while married to his lawful wife, and the girl named in the indictment went from Utah to California for the purpose of being married by a celestial ceremony and then living together as man and wife. After the ceremony, they spent the night together and engaged in sexual intercourse, but the following day she refused to go further with their marriage. And in one case, one of the defendants was living in a state of plural marriage with the woman named in the indictment; and at their request, the other defendant, also a member of the Fundamentalist cult, transported the woman in interstate commerce in order that the cohabitation in plural marriage might continue. In some instances, the celestial ceremony was performed by a member of the Priesthood Council of the cult. In others, the record fails to indicate the position or title of the person performing it. In the case involving the charge of violating the Kidnapping Act, a girl fourteen years old but having the mental capacity of a child about seven years of age was employed by one of the defendants as a housekeeper. They went through a celestial ceremony, and she later became pregnant. Discovering her condition, her parents informed the juvenile authorities; and she was placed in the custody of the Welfare Department of the state, subject to the continuing jurisdiction of the court. With some aid, she escaped and went to the home of the other two defendants. There the three defendants persuaded and convinced her that she should abide 'by the law of God rather than the law of man'; that she was justified in running away from the Juvenile Court; that she should go with them to Mexico to be legally married to the defendant in whose home she had been employed; and that she should then remain in hiding until she reached her majority. After thus persuading and convincing the girl, all three defendants transported her from Salt Lake City to Juarez, Mexico, where a civil marriage ceremony was performed. They then transported her to a point in Utah. There the defendant who had assumed to marry her in the manner outlined obtained transportation from another member of the cult, and she was taken to Short Creek, Arizona, where she remained in hiding for more than two years, until discovered by federal authorities. While in hiding, she and the defendant last referred to continued to live together as man and wife.

It is contended that the court erred in denying the motion to quash the indictment in each case. The ground relied upon in each instance was that the grand jury which returned the indictment, and each member thereof, was prejudiced against the defendant and was therefore disqualified to sit as a grand juror in the matter; and that the return of the indictment by grand jurors of that kind constituted a wrongful invasion of the rights of the defendant. An affidavit of the defendant was attached to the motion, in which it was stated that he was an earnest and profound believer in the doctrines and principles of the Church of Jesus Christ of Latter-Day Saints, commonly referred to as the Morman Church; that he believed in, taught, and practiced the doctrine of plural marriages, that about the year 1920 a breach arose in the church with reference to the practice of polygamy, resulting in factional disagreement and intense bitterness; that due to such bitterness, the dominating high priesthood of the church aided, assisted, and incited the convening of the grand jury and the return of the indictment; that the foreman of the grand jury was a prominent and dominating figure in the high priesthood quorums of the church; that, upon information and belief, a large majority of the grand jurors, it not all of them, were likewise influential members of the church; and that the indictment was returned in a spirit of animosity and enmity toward the defendant. There is no need to explore the question of law whether in a United States court in indictment regular on its face may be attacked by motion to quash on the ground that some or all members of the grand jury which returned...

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