Baker v. United States

Citation310 F.2d 924
Decision Date18 January 1963
Docket NumberNo. 17937.,17937.
PartiesJames Richard BAKER, Appellant, v. UNITED STATES of America, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Gordian S. Benes, Richard L. Daly, and Robert J. O'Hanlon, St. Louis, Mo., for appellant.

John W. Bonner, U. S. Atty., Melvin D. Close, Jr., and Thomas R. C. Wilson, III, Asst. U. S. Attys., Las Vegas, Nev., for appellee.

Before ORR, HAMLEY and JERTBERG, Circuit Judges.

HAMLEY, Circuit Judge.

James Richard Baker was tried and convicted of knowingly transporting Carol Lou Thomas from Tiller, Oregon to Elko, Nevada, for the purpose of prostitution, in violation of the White Slave Traffic Act, 18 U.S.C. § 2421. He appeals, asserting that the trial court erred in admitting certain evidence, in failing to instruct the jury on certain points, and in erroneously instructing them as to other matters.

For the purposes of appeal the facts are established by the undisputed testimony of Miss Thomas. In the latter part of June, 1959, Miss Thomas met Baker in Elko, Nevada, while both were passengers on a bus. Baker got off at Reno, Nevada, but she continued on to Tracy, California, where she made her home with her sister and brother-in-law. In August, 1959, Baker visited Miss Thomas two or three days at Tracy.

About the middle of September, 1959, he returned to Tracy and told Miss Thomas that he was married but was getting a divorce. He asked her to go with him to Reno and to marry him after the divorce. She agreed and they left Tracy in his automobile. When they reached Sacramento, California, Baker suggested to her that she could make money for him by being a prostitute. They did not stop at Sacramento but drove on to Tiller, Oregon, where they stayed at his home.

Baker and Miss Thomas stayed in Tiller for three or four days and then drove in his automobile to Reno, Nevada, where they checked into a motel. She then went downtown and had her hair dyed platinum blonde, after which they drove to Elko. When they reached Elko, they went to Betty's D & D Club, arriving there about 3:00 o'clock A.M. After they entered the club Baker left Miss Thomas and went into another room with a girl who was present. When he returned he told Miss Thomas that Betty did not have any room for anybody, "but he knew they did because they were always needing girls."

The two then drove to a Joe Conforte's place in Wadsworth, Nevada, arriving there at 6:00 o'clock A.M. Baker told Miss Thomas he would see if they needed any girls, and went inside. When he returned to the automobile he told Miss Thomas to go inside with him. She did so and Baker introduced her to the maid who showed her to a room. Baker then left.

Miss Thomas worked as a prostitute in this house for four or five days, this being the first time she had done such work. She made two or three hundred dollars which she turned over to Baker when he returned at the end of this period.

Miss Thomas then went with Baker in his automobile to Winnemucca, Nevada, where she began working as a prostitute at Mickey's My Place bar. Baker then left. Four or five days later, Miss Thomas left this place and arranged to have two truck drivers take her to Sacramento. There she took a bus and returned to her sister's home in Tracy. Baker called for her a day or so later and took her to the Moonlight Ranch in Carson City, Nevada, where he arranged for her to work as a prostitute.

Four or five days later they left Carson City. Miss Thomas' testimony is confused as to what they did next. They may have driven directly to Peoria, Illinois. On the other hand they may have driven first to Caseyville, Illinois, where they picked up Baker's daughter at the house of his mother. If the latter is the case, they then took the girl to his father's home in Grant's Pass, Oregon, before going to Peoria. In either event, they reached Peoria about November 1, 1959. Baker arranged to have her work there as a prostitute in a house operated by one Pam Miller. Miss Thomas worked there until January, 1960, when she returned to Oregon.

Appellant's first two points on appeal relate to the testimony of Pam Miller. Testifying for the Government over the objection of Baker's counsel, she corroborated the testimony of Miss Thomas concerning the events which occurred in Peoria. Appellant argues that Pam Miller's testimony should have been excluded as "substantive evidence of an independent crime."

Testimony concerning events in Peoria tended to prove an independent crime, since the indictment charged only a transportation between Tiller, Oregon and Elko, Nevada. It is the general rule that on the trial of a person accused of crime, proof of a distinct, independent offense is inadmissible. Tedesco v. United States, 9 Cir., 118 F.2d 737, 739-740.

But there are several exceptions to this rule, one being that proof of an independent crime may be produced to show the intent with which the alleged act was committed. Bush v. United States, 9 Cir., 267 F.2d 483, 489; Tedesco, above, at page 740 of 118 F.2d.

Appellant recognizes this exception and concedes that the testimony of Miss Thomas concerning the events which occurred in Peoria was admissible under it. But he draws the line at Pam Miller's testimony, arguing that hers was "substantive" in character.

In urging that Pam Miller's testimony was substantive in character, appellant seems to advance three independent arguments. One, which we shall first consider, is that it was introduced to prove the fact of the Tiller-Elko transportation rather than the purpose for which it was undertaken.

We perceive no reason for drawing such a distinction between the testimony of Miss Thomas and that of Pam Miller. It is true that Government counsel did not expressly state, at the time the evidence was received, that the purpose of Pam Miller's testimony was to establish purpose with regard to the Tiller-Elko transportation. But this is the only reasonable inference in view of the fact that her testimony did no more than corroborate that of Miss Thomas, which was concededly limited to that purpose. Moreover, during argument to the jury, counsel for the Government referred to evidence concerning Peoria only as tending to establish intent.

Appellant's second argument in this connection is that Pam Miller's testimony did not tend to prove anything about his general disposition to have Miss Thomas work as a prostitute, and that it was only offered to prove that Miss Thomas had worked for Pam Miller in Peoria. This effort to corroborate Miss Thomas' testimony by introducing evidence of a collateral matter, it is argued, tended to confuse the issues being tried, and the evidence should have been excluded as irrelevant.

If Pam Miller had testified only to the fact that Miss Thomas had worked for her in Peoria, this argument might have some merit.1 But she testified that Miss Thomas and appellant came to her house in Peoria together. This evidence was relevant to appellant's purpose in the Tiller-Elko transportation. It directly concerned appellant's conduct, from which the jury could draw inferences concerning his mental state.

Appellant's third argument appears to be that Pam Miller's testimony, being cumulative of that given by Miss Thomas, strained to the breaking point the proper application of the "intent" exception.

No doubt the amount or character of evidence concerning independent crimes, tendered under the "intent" exception to the general rule can, under stated circumstances, be such as to require a trial court in the exercise of a sound discretion to call a halt. But under the circumstances of this case, the production of Pam Miller as an additional witness as to the Peoria episode does not seem unreasonable or unfair.2 Moreover, it is unlikely that Baker was prejudiced thereby any more than he was already prejudiced by the undisputed and concededly admissible testimony of Miss Thomas concerning Baker's activities at Wadsworth, Winnemucca and Carson City, Nevada, and Peoria, Illinois.

The Court did not err in receiving the testimony of Pam Miller.

Appellant further argues, however, that if Pam Miller's testimony was admissible the jury should have been, but was not, instructed as to its limited purpose.

Such an instruction is proper and if the trial court is requested to give such an instruction it would be error to refuse. See Tedesco v. United States, 9 Cir., 118 F.2d 737, 740.

But although appellant, under Rule 30, Federal Rules of Criminal Procedure, 18 U.S.C.A. had the right to file a written request for such an instruction, his then counsel did not do so.3 Nor did counsel orally request that such an instruction be given. Moreover, he interposed no objection to the omission of such an instruction. Instead, trial counsel for appellant, when asked by the court before any instructions had been given, whether the instructions proposed to be given covered the points he had in mind, answered, "Yes, Your Honor." After all of the instructions had been given, counsel for appellant told the court, "The defendant has no exceptions."4

It is provided in Rule 30 that no party may assign as error any portion of the charge or omission therefrom "unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection." Therefore the failure to instruct as to the limited purpose of the testimony from Pam Miller may not be a ground for reversal here unless we notice the matter as a plain error or defect affecting substantial rights, within the meaning of Rule 52(b), Federal Rules of Criminal Procedure.

Appellant asks us to so notice the failure to give an instruction concerning the limited application to be given Pam Miller's testimony.

The issues of the case were relatively simple. Baker presented no defense other than to put the Government on...

To continue reading

Request your trial
32 cases
  • Gilbert v. United States
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • October 24, 1966
    ...the evidence of guilt in this case was overwhelming. See Bushaw v. United States, 9 Cir., 1965, 353 F.2d 477, 481; Baker v. United States, 9 Cir., 1963, 310 F.2d 924, 929-930; Cellino v. United States, 9 Cir., 1960, 276 F.2d Affirmed. BARNES, Circuit Judge. I concur in Parts I and IIA of Ju......
  • Cohen v. United States
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • June 20, 1967
    ...327 F.2d 189, 195 (9th Cir. 1964); Turf Center Inc. v. United States, 325 F.2d 793, 797 n. 5 (9th Cir. 1963); Baker v. United States, 310 F.2d 924, 931 (9th Cir. 1962); Legatos v. United States, 222 F.2d 678, 687 (9th Cir. 1955); Bateman v. United States, 212 F.2d 61, 69-70 (9th Cir. 1954).......
  • Lessig v. Tidewater Oil Company
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • February 17, 1964
    ...in terms of the specific facts in all cases (Cohen v. Western Hotels, Inc., 276 F.2d 26, 28 (9th Cir. 1960); cf. Baker v. United States, 310 F.2d 924, 930 (9th Cir. 1962)), it would seem appropriate to do so where, as here, the abstract legal principles are not self-explanatory to a lay jur......
  • United States v. Friedman
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • July 16, 1971
    ...claims that he did not know the transcripts were stolen. The evil present in Morissette is not present here. Compare Baker v. United States, 9 Cir., 1962, 310 F. 2d 924, 930. G. Friedman's contentions that the trial judge erred in refusing Friedman's clarifying instructions on obstruction o......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT