Batsell v. United States

• Decision Date: 24 February 1969
• Docket Number: No. 18945,19344.,18945
• Citation: 403 F.2d 395
• Parties: Harold Lee BATSELL, Appellant, v. UNITED STATES of America, Appellee (two cases).
• Court: U.S. Court of Appeals — Eighth Circuit

403 F.2d 395 (1968)

Harold Lee BATSELL, Appellant, v. UNITED STATES of America, Appellee (two cases).

Nos. 18945, 19344.

United States Court of Appeals Eighth Circuit.

November 19, 1968.

Certiorari Denied February 24, 1969.

Ellis Olkon, Minneapolis, Minn., for appellant, and Sheldon J. Eviden, Minneapolis, Minn., on the briefs.

J. Earl Cudd, Asst. U. S. Atty., Minneapolis, Minn., for appellee, Patrick J. Foley, U. S. Atty., and Neil P. Convery, Asst. U. S. Atty., Minneapolis, Minn., on the brief.

Before VOGEL, LAY and BRIGHT, Circuit Judges.

Certiorari Denied February 24, 1969. See 89 S.Ct. 865.

VOGEL, Circuit Judge.

We are concerned here with two separate appeals in a criminal conviction. The first appeal is from a judgment of conviction entered against appellant-defendant, Harold Lee Batsell, for violation of Section 2422 of the Mann Act, 18 U.S.C.A. § 2421 et seq. The second appeal is from the District Court's denial of defendant's motion, pursuant to Rule 33, Federal Rules of Criminal Procedure, 18 U.S.C.A., for a new trial on the ground of newly discovered evidence. In each case we affirm.

The issues in the appeal from the judgment of conviction will be considered first. The defendant was indicted in the District of Minnesota under 18 U.S.C.A. § 2421 for having procured interstate transportation for one Gloria Jean Hull (hereinafter "Miss Hull") from Minneapolis, Minnesota to New York City "for the purpose of prostitution, debauchery and other immoral purposes, and with intent on the part of defendant to induce, entice, and compel Miss Hull to give herself up to the practice of prostitution and debauchery and other immoral practices", and under 18 U.S. C.A. § 2422 for having persuaded, induced, enticed and caused Miss Hull to go from Minneapolis to New York for the aforesaid purposes.¹

The two indictments were consolidated for trial. What is hereinafter referred to as the first trial was commenced in the United States District Court in Minneapolis, Minnesota, before the Honorable Earl R. Larson and a jury on March 20, 1967. On March 27, 1967, after considerable testimony had been taken, the court granted defendant's motion for a mistrial.

The second trial, also before Judge Larson and a jury, commenced in St. Paul, Minnesota, on June 5, 1967. This trial resulted in defendant's acquittal of the charge under 18 U.S.C.A. § 2421 (the first indictment) and defendant's conviction for violation of 18 U.S.C.A. § 2422 (the second indictment).

The defendant relies generally on three grounds in his appeal from the judgment of conviction:

"I.

"The defendant was denied a fair trial because the jury\'s confusion as to the word `inducement\' in the statute 18 U.S.C. § 2422 was never clarified even after the jury requested clarification and the confusion was manifest in the inconsistent verdicts returned by the jury.

"II.

"In view of completely contradictory stories told by complaining witness, the evidence was insufficient to sustain conviction.

"III.

"Refusal of the court to allow defendant to recall Gloria Jean Hull, the key prosecution witness after the prosecution had been allowed to recall her on four separate occasions, constituted reversible error."

In order to properly resolve defendant's contentions, it is necessary to analyze in some detail the proceedings of the first and second trials.

During the first trial, Miss Hull, the alleged victim of the unlawful act charged against the defendant, suffered a "memory loss" until recalled by the prosecution for the fourth time. Upon being recalled the fourth time, she testified, after stating that her memory had returned, that she made the trip from Minneapolis to New York without inducement, enticement or persuasion by the defendant; that she went to New York to run away from her problems; that she did not know what she would be doing in New York; that although she did have sexual adventures in New York, she did so of her own free accord; that she boarded the airplane in Minneapolis with the defendant; and that defendant purchased her plane ticket. At this point defendant's motion for a mistrial was granted.

The second trial was delayed until Miss Hull, who disappeared after the first trial, could be located by the FBI and confined as a material witness under a $10,000 bond. At this trial, Miss Hull testified that she was 18 years of age at the time of the alleged unlawful acts; that she first met defendant when she was 14 or 15; that she attended a reform school for girls at Sauk Center, Minnesota; that the night before the trip to New York she stayed at the defendant's father's home in Minneapolis, although her mother's residence was also in Minneapolis; that she was driven to the airport accompanied by the defendant's sister, the sister's boy friend, and the defendant; that she went to New York voluntarily after having been persuaded by the defendant; that it was "understood" that what she would be doing in New York would be prostitution; that after the defendant "persuaded" her to go to New York, she went voluntarily; that defendant purchased her airplane ticket; and that defendant boarded the plane with her. She further testified that the defendant drove her from the New York airport to the Park Sheraton Hotel, where they met Nancy Ubel (who later became defendant's wife); that defendant then took her to the Taft Hotel, where she registered after receiving $20 from him; that he took her to her first "trick" the next morning; and that he subsequently took her to two or three other "tricks". During her sojourn in New York she continued to earn money as a prostitute, giving most of it to Nancy Ubel and to the defendant. Miss Hull's testimony with reference to the trip from Minneapolis to New York, the fact that the defendant accompanied her on the trip, her activities in New York as a prostitute, and the defendant's acquaintance and relationship with her there is substantially corroborated by the testimony of other witnesses. The defendant himself did not testify.

The record indicates that the case was submitted to the jury in the early afternoon of June 8, 1967. At 4:45 p. m. the jury returned to the courtroom and the following transpired:

"THE COURT: I have this written note from the Foreman of the jury: `Please reread the final instructions to the jury including a definition of terms, especially inducement and intent; also, the specific four points on each indictment.\' This is signed by Mr. Cherrier, your Foreman. Do you want me to read all of the instructions?

"JURY FOREMAN: There seemed to be some confusion on our part especially on the term `inducement\' and also in the instructions on the four points that had to do with each indictment. This is what we got hung up on.

"THE COURT: I didn\'t give you any definition in my instructions of inducement or persuasion or enticement, which are the terms that are used in the instructions. I didn\'t give you any definitions of those terms because I assumed that these are terms in common usage. On the matter of `intent,\' I did give you three instructions which might have some application on each of the two indictments. I listed the essential elements, which are four in number. Do you want me to reread all of the instructions? Do you want me to reread the instructions as they go to the matter of `intent\' and also the essential elements for each indictment?

"JURY FOREMAN: I think so."

After reiterating the essential elements for the § 2421 indictment, the court stated:

"With respect to Title 18, U.S.C., Section 2422, I instructed you as follows:

"The essential elements required to be proved in order to establish the offense charged under Title 18, Section 2422, are these:

"1. The act of inducing, enticing or persuading a woman or girl, in this case Gloria Jean Hull, to travel in interstate commerce.

"2. Doing such act with the intent or purpose that the woman or girl would engage in prostitution or other immoral practices.

"3. Causing the interstate transportation of a woman or girl, in this case Gloria Jean Hull, by common carrier for the immoral purpose.

"4. Doing such act or acts knowingly and wilfully.

"The burden is on the prosecution to prove all of the essential elements beyond a reasonable doubt.

"(I will reread these four essential elements.)

"(The four essential elements were reread.)

* * * * * *

"JURY FOREMAN: One other point that you brought out earlier had to do with a person going on a common carrier with or without — I believe it was wilfully inducing — for the purpose of inducing an illegal act. I believe that was one of the four points on the intent.

"THE COURT: You are talking about these four points in the essential elements?

"JURY FOREMAN: Yes.

"THE COURT: I will reread the essential elements in 2421.

* * * * * *

"The other section, Section 2422, the four elements are:

"1. The act of inducing, enticing or persuading a woman or girl, in this case Gloria Jean Hull, to travel in interstate commerce.

"2. Doing such act with the intent or purpose that the woman or girl would engage in prostitution or other immoral practice.

"3. Causing the interstate transportation of the woman or girl by common carrier for the immoral purpose.

"4. Doing such act or acts knowingly and wilfully.

"Perhaps this might be sufficient for your purposes now."

The jurors thereafter appeared satisfied with the court's explanation and defendant's counsel took no exception and made no request. On the following day, June 9, 1967, the jurors returned their verdict of not guilty as to § 2421 and guilty as to § 2422. Upon defendant's request, the jurors were polled. Each answered in the affirmative as to the two verdicts.

As noted, defendant contends on appeal that he was denied a fair trial because the jury's alleged confusion as to the meaning of the word "inducement" in § 2422 "was never clarified even after the jury requested clarification * * *." In response to the jurors' written request, the trial court did...