287 U.S. 112 (1932), 97, Gebardi v. United States

Docket Nº:No. 97
Citation:287 U.S. 112, 53 S.Ct. 35, 77 L.Ed. 206
Party Name:Gebardi v. United States
Case Date:November 07, 1932
Court:United States Supreme Court

Page 112

287 U.S. 112 (1932)

53 S.Ct. 35, 77 L.Ed. 206



United States

No. 97

United States Supreme Court

Nov. 7, 1932

Argued October 10, 1932




1. Section 2 of the Mann Act imposes a penalty upon

Any person who shall knowingly transport or cause to be transported, or aid or assist in obtaining transportation for, or in transporting in interstate or foreign commerce . . . any woman or girl for the purpose of prostitution or debauchery or for any other immoral purpose. . .


That a woman who is the willing object of such transportation, but who does not aid or assist otherwise than by her consent, is not guilty of the offense. P. 119.

2. A woman merely acquiescing in her transportation by a man for immoral conduct between them in violation of § 2 of the Mann Act does not thereby commit the crime of conspiring to commit the substantive offense of which, by the transportation, he alone becomes guilty. P. 123.

So held upon the ground that, as Congress set out in the Mann Act to deal with cases which involve consent and agreement on the part of the woman in every case in which she is a voluntary agent at all, the failure of the Act to condemn her participation in transportation effected with her mere consent evinces an affirmative legislative policy to leave her acquiescence unpunished.

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This policy would be contravened were it to be held that the very passage of the Mann Act effected a withdrawal, by the earlier conspiracy statute, of that immunity which the Act itself confers.

57 F.2d 617 reversed.

Certiorari, 286 U.S. 539, to review the affirmance of convictions and sentences of the petitioners, a man and a woman, for alleged conspiracies, in three counts.

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STONE, J., lead opinion

MR. JUSTICE STONE delivered the opinion of the Court.

This case is here on certiorari, 286 U.S. 539, to review a judgment of conviction for conspiracy to violate the Mann Act (36 Stat. 825, 18 U.S.C. § 397 et seq.). Petitioners, a man and a woman, not then husband and

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wife, were indicted in the District Court for Northern Illinois for conspiring together, and with others not named, to transport the woman from one state to another for the purpose of engaging in sexual intercourse with the man. At the trial without a jury, there was evidence from which the court could have found that the petitioners had engaged in illicit sexual relations in the course of each of the journeys alleged; that the man purchased the railway tickets for both petitioners for at least one journey, and that, in each instance, the woman, in advance of the purchase of the tickets, consented to go on the journey and did go on it voluntarily for the specified immoral purpose. There was no evidence supporting the allegation that any other person had conspired. The trial court overruled motions for a finding for the defendants and in arrest of judgment, and gave judgment of conviction, which the Court of Appeals for the Seventh Circuit affirmed, 57 F.2d 617, on the authority of United States v. Holte, 236 U.S. 140.

The only question which we need consider here is whether, within the principles announced in that case, the evidence was sufficient to support the conviction. There, the defendants, a man and a woman, were indicted for conspiring together that the man should transport the woman from one state to another for purposes of prostitution. In holding the indictment sufficient, the court said (p. 144):

As the defendant is the woman, the district court sustained a demurrer on the ground [53 S.Ct. 36] that, although the offense could not be committed without her, she was no party to it, but only the victim. The single question is whether that ruling is right. We do not have to consider what would be necessary to constitute the substantive crime under the Act of 1910 [the Mann Act], or what evidence would be required to convict a woman under an indictment like

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this, but only to decide whether it is impossible for the transported woman to be guilty of a crime in conspiring as alleged.

The court assumed that there might be a degree of cooperation which would fall short of the commission of any crime, as in the case of the purchaser of liquor illegally sold. But it declined to hold that a woman could not under some circumstances not precisely defined, be guilty of a violation of the Mann Act, and of a conspiracy to violate it as well. Light is thrown upon the intended scope of this conclusion by the supposititious case which the court put (p. 145):

Suppose, for instance, that a professional prostitute, as well able to look out for herself as was the man, should suggest and carry out a journey within the Act of 1910 in the hope of blackmailing the man, and should buy the railroad tickets, or should pay the fare from Jersey City to New York; she would be within the letter of the Act of 1910, and we see no reason why the act should not be held to apply. We see equally little reason for not treating the preliminary agreement as a conspiracy that the law can reach if we abandon the illusion that the woman always is the victim.

In the present case, we must apply the law to the evidence -- the very inquiry which was said to be unnecessary to decision in United States v. Holte, supra.

First. Those exceptional circumstances envisaged in United States v. Holte, supra, as possible instances in which the woman might violate the act itself, are clearly not present here. There is no evidence that she purchased the railroad tickets or that hers was the active or moving spirit in conceiving or carrying out the transportation. The proof shows no more than that she went willingly upon the journeys for the purposes alleged.

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Section 2 of the Mann Act1 (18 U.S.C. § 398), violation of which is charged by the indictment here as the object of the conspiracy, imposes the penalty upon

any person who shall knowingly transport or cause to be transported, or aid or assist in obtaining transportation for, or in transporting, in interstate or foreign commerce . . . any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose. . . .

Transportation of a woman or girl whether with or without her consent, or causing or aiding it, or furthering it in any of the specified ways, are the acts punished when done with a purpose which is immoral within the meaning of the law. See Hoke v. United States, 227 U.S. 308, 320.

The Act does not punish the woman for transporting herself; it contemplates two persons -- one to transport and

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the woman or girl to be transported. For the woman to fall within the ban of the statute, she must, at the least, "aid or assist" someone else in transporting or in procuring transportation for herself. But such aid and assistance must, as in the case supposed in United States v. Holte, supra, 145, be more active than mere agreement on her part to the transportation and its immoral purpose. For the statute is drawn to include those cases in which the woman consents to her own transportation. Yet it does not specifically impose any penalty upon her, although it deals in detail with the person by whom she is transported. In applying this criminal statute, we cannot infer that the mere acquiescence of the woman transported was intended to be condemned by the general language punishing those who aid and assist the transporter,2 any more than it has been [53 S.Ct. 37] inferred that the purchaser of liquor was to be regarded as an abettor of the illegal sale. State v. Teahan, 50 Conn. 92; Lott v. United States, 205 F. 28; cf. United States v. Farrar, 281...

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