Powell v. United States, 19294.
Citation | 347 F.2d 156 |
Decision Date | 11 June 1965 |
Docket Number | No. 19294.,19294. |
Parties | Clarence Eric POWELL, Appellant, v. UNITED STATES of America, Appellee. |
Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
David B. Flinn, San Francisco, Cal., for appellant.
Jo Ann D. Diamos, U. S. Atty., Henry L. Zalut, Asst. U. S. Atty., Phoenix, Ariz., for appellee.
Before KOELSCH and BROWNING, Circuit Judges, and WEIGEL, District Judge.
Appellant was convicted of transporting a girl from Texas to Phoenix, Arizona, for purposes of prostitution, in violation of 18 U.S.C.A. § 2421. The interstate journey was admitted. The sole issue was appellant's intent.
The trial court properly instructed the jury that the immoral purpose renders the interstate transportation illegal, and must therefore exist before the journey ends and supply the dominant motive for the trip.1 The court also properly instructed the jury that the necessary intent may be established by circumstantial evidence, including evidence of conduct of the parties after the journey has ended.2
The jury retired at 4:12 p. m. At 8:40 p. m. the jury requested further instructions. The jury's request and the court's response were as follows:
The jury retired. A guilty verdict was returned five minutes later.
The meaning of the jury's inquiry was uncertain. All that the inquiry made clear was that the jury was confused as to the legal standards to be applied in resolving the central factual issue upon which defendant's guilt or innocence depended. The court made no effort to discover the nature of the jury's misunderstanding. Instead, the court assumed, despite its own doubts, that the jury meant to ask whether the requisite wrongful purpose could be inferred from evidence of conduct subsequent to the interstate journey. The court therefore reread an instruction which it had previously given on this subject. But it would seem just as likely that the jury meant to ask whether the defendant would be guilty of the offense charged if the wrongful intent were first conceived after the couple arrived at their destination. The court did not repeat its prior instructions on this subject. Moreover, the instruction which was given, if taken as an answer to the second possible meaning of the jury's inquiry, might well have led the jurors to suppose that a wrongful purpose conceived following the journey would suffice. Thus, the court's response may have led to the application of a standard which was wholly improper.
Bollenbach v. United States, 326 U.S. 607, 612-613, 66 S.Ct. 402, 405, 90 L.Ed. 350 (1946). 326 U.S. 612, 66 S.Ct. 405. That the court's last word in this case may have misled the jury on a vital issue appears from what we have said; that it may have been decisive is reflected in the promptness with which the jury terminated its deliberations.3
It is no answer to say that the supplemental instruction was correct, so far as it went; or that it was to be read in the light of the original instructions and that these fairly presented the issues.4 The ultimate question is "whether the charge taken as a whole was such as to confuse or leave an erroneous impression in the minds of the jurors." Perez v. United States, 297 F.2d 12, 16 (5th Cir. 1961). See also Bland v. United States, 299 F.2d 105, 108-109 (5th Cir. 1962); United States v. Christmann, 298 F.2d 651 (2d Cir. 1962). Cf. Babson v. United States, 330 F.2d 662, 666 (9th Cir. 1964). As we have noted, the jury's inquiry showed the initial charge left the jury confused. A rereading of a portion of that charge which was not clearly responsive to the jury's inquiry could scarcely have clarified the matter in the jurors' minds. Clear error occurred, requiring reversal.5
Appellant urges reversal on the additional ground that certain evidence was admitted which indicated that he had possessed, used, purchased, and sold narcotics. Appellant's objection came so late, and his counsel was so clearly responsible for the introduction of much of the material on this subject which appears in the record, that it is doubtful that reversible error occurred. However, since there must be a new trial, it...
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