Blumenfield v. United States

• Decision Date: 15 November 1960
• Docket Number: No. 16465-16467.,16465-16467.
• Citation: 284 F.2d 46
• Parties: Isadore BLUMENFIELD, Appellant, v. UNITED STATES of America, Appellee (two cases). Monte PERKINS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

284 F.2d 46 (1960)

Isadore BLUMENFIELD, Appellant, v. UNITED STATES of America, Appellee (two cases).

Monte PERKINS, Appellant, v. UNITED STATES of America, Appellee.

Nos. 16465-16467.

United States Court of Appeals Eighth Circuit.

November 15, 1960.

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Thomas D. McBride, Philadelphia, Pa., for appellants; Michael Von Moschzisker and McBride, Von Moschzisker & Bradley, Philadelphia, Pa., and E. David Rosen, Miami, Fla., on brief, for appellant Blumenfield, and Erling Swenson, Minneapolis, Minn., on brief for appellant Monte Perkins.

Hyam Segell, Asst. U. S. Atty., St. Paul, Minn., for appellee; Fallon Kelly, U. S. Atty., St. Paul, Minn., on the brief.

Before SANBORN, WOODROUGH and MATTHES, Circuit Judges.

MATTHES, Circuit Judge.

A federal grand jury at St. Paul, Minnesota, returned four indictments against Isadore Blumenfield and Monte Perkins¹ charging them with violations of the so-called White Slave Traffic Act, Title 18, U.S.C.A. § 2422 on four separate dates, between December 24, 1955 and July 14, 1958, and one indictment charging an unlawful conspiracy. The latter, based upon Title 18, U.S.C.A. § 371, charged that between September 1, 1954, and September 1, 1958, at Minneapolis, Minnesota, and divers other places to the grand jury unknown, Blumenfield and Perkins conspired to commit certain offenses against the United States in violation of Title 18, U.S.C.A. § 2422, and that in furtherance of the conspiracy the defendants performed 13 separate overt acts, set forth explicitly in the indictment. It is sufficient to say that each of the overt acts named one Marilyn Ann Tollefson as the object of the defendants' activities.

Upon motion the cases were consolidated for trial.

Defendants were convicted on indictment No. 71,² which charged a substantive offense, and on indictment No. 74, the conspiracy charge. The court sustained Perkins' after trial motion for judgment of acquittal of his conviction under indictment No. 71. Blumenfield was adjudged to serve a sentence of two years and pay a fine of $2,500. This was a single general sentence on indictments Nos. 71 and 74. Perkins was sentenced to a year and one day on his conviction on indictment No. 74. Both were acquitted by the jury on indictments Nos. 70, 72 and 73.

Sufficiency of Indictments.

Defendants attack the indictments, claiming they are invalid because they fail to name the woman alleged to have been induced to travel in interstate commerce, etc., in violation of the statute, Title 18, U.S.C.A. § 2422.³

Firmly entrenched is the constitutional principle that, to be valid, an indictment must sufficiently advise the defendant of the nature and cause of the accusation in order that he may meet it and prepare for trial and, after judgment, be able to plead the record and judgment in bar of a further prosecution for the same offense. Rosen v. United States, 161 U.S. 29, 40, 16 S.Ct. 434, 40 L.Ed. 606; Wong Tai v. United States, 273 U.S. 77, 80, 81, 47 S.Ct. 300, 71 L.Ed. 545; Bartell v. United States, 227 U.S. 427, 431, 33 S.Ct. 383, 57 L.Ed. 583; Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252; Tubbs v. United States, 8 Cir., 105 F. 59.

At a pre-trial hearing on the motions to dismiss the indictments, the government attorney made this statement, "I think he (counsel for defendants) knows that the victim in this case is a woman by the name of Marilyn Ann Tollefson, and if he doesn't know that we will spread it on the record at this time * * *." He further suggested that a bill of particulars would remedy the situation complained of. The trial court ruled that in his opinion it was not necessary for the indictments to name the woman, that this omission could be cured by a bill of particulars, stating to defendants' counsel: "you may resort to a motion for a bill of particulars, and on such a motion it will follow that the Court will require the United States Attorney to name the woman involved. That has already been indicated here openly in Court * * *."

We are not persuaded by defendants' argument that the omission of Marilyn Ann Tollefson's name from the indictment rendered it completely impotent as a true bill and that trials upon the indictments violated the Fifth and Sixth Amendments of the Federal Constitution. The indictments were in the language of the statute — they were not vague, but were sufficient to inform the defendants of the charge they had to meet and afforded them reasonable opportunity to prepare their defense. The omission of the name of the woman transported does not in our considered opinion render the indictment any more invalid than did the failure of the indictment to set out the contents of the obscene, lewd and lascivious letter in Tubbs v. United States, 8 Cir., 105 F. 59, and Bartell v. United States, 227 U.S. 427, 33 S.Ct. 383; or failure to allege that the victim was transported by "common carrier," see Sun Chong Lee v. United States, 9 Cir., 125 F.2d 95; or failure to allege the mode of transportation, Mellor v. United States, 8 Cir., 160 F.2d 757, 760, certiorari denied 331 U.S. 848, 67 S.Ct. 1734, 91 L.Ed. 1858. If defendants were motivated by good faith in their assertion that they would have difficulty in defending the charge, or that the omission of the name of the woman transported might not protect them subsequently in a plea of former jeopardy, they could have called for a bill of particulars. See Heasley v. United States, 8 Cir., 218 F.2d 86, 89, certiorari denied 350 U.S. 882, 76 S.Ct. 134, 100 L.Ed. 778; Rosen v. United States, 161 U.S. 29, 34, 40, 16 S.Ct. 434. As we have seen, the court announced that, upon request, it would require the Government to provide defendants with a bill of particulars, this notwithstanding that the woman's name had been stated in open court. Defendants failed to avail themselves of this remedy.

The lack of substance with respect to this contention becomes more apparent when it is viewed in light of indictment No. 74, which charged the conspiracy. There, Marilyn Ann Tollefson was named in each of the 13 paragraphs setting forth the overt acts committed in furtherance of the conspiracy. Finally, it should be noted that the Government at no time suggested that defendants had ever induced any person other than Marilyn Ann Tollefson to travel in interstate commerce for purposes prohibited by the Act. She and she alone was the object of defendants' unlawful activities. On this record we are satisfied that the defendants were not prejudiced because of the failure of the indictment in the respect mentioned; they were not surprised, neither did the omission prevent their ability to meet the charge and prepare for trial, and they could successfully plead the record and judgment to bar a further prosecution for the same offense.

Motion for Examination of Grand Jury Minutes.

Denial of defendant Blumenfield's motion to inspect the minutes "for the exclusive purpose of determining how many women testified before it" is the basis for the argument that the indictment was not based upon proper evidence — the theory being that some grand jurors may have found that defendants induced woman "A" while others may have found that defendants induced woman "B".

The rule of secrecy surrounding grand jury proceedings must govern unless there is a "clear showing" of good cause. Costello v. United States, 8 Cir., 255 F.2d 389, 396, certiorari denied Cannella v. U. S., 358 U.S. 830, 79 S.Ct. 51, 3 L.Ed.2d 69. There is a presumption that the grand jury acted on sufficient evidence. United States v. Texeira, 2 Cir., 162 F.2d 169, 170; United States v. Weber, 2 Cir., 197 F.2d 237, 238, certiorari denied 344 U.S. 834, 73 S.Ct. 42, 97 L.Ed. 649. Inasmuch as there were no affidavits supporting the motion, nor any factual allegations indicating insufficiency of evidence or any other irregularity upon the part of the grand jury in delivering a true bill, the trial court was fully justified in concluding that the motion constituted a "fishing expedition" and the denial of access to the grand jury minutes was clearly proper.

Transfer of Venue.

By separate pre-trial motions, defendants petitioned for transfer of the case to another district, as authorized by Rule 21 (a) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., alleging that because of prejudice against defendants in the District of Minnesota, they could not obtain a fair and impartial trial in that district. Alternatively, Blumenfield requested that the proceeding be transferred to the Northern District of Illinois, sitting at Chicago, as authorized by Rule 21(b), on the theory that venue of the offense could have been laid in the first instance in the Illinois district. Perkins' motion was denied on October 26, 1959. A 3-day hearing on Blumenfield's motion was conducted and Perkins renewed his request for transfer at that time. The court denied both motions without prejudice to renew the same if upon voir dire examination of the jury panel, it was demonstrated that defendants could not obtain a fair trial in the District of Minnesota.⁴

At the hearing on this issue, the court admitted, and personally examined, numerous local newspaper clippings, microfilm strips, and radio and television scripts, covering a period of approximately 25 years, indicating that Blumenfield had been depicted as an individual of questionable and unsavory character. Typical examples were newspaper clippings relating to his trial and acquittal for murder in 1936, together with various references to his connection with the "Kid Cann Syndicate," an organization composed of questionable characters engaged in selling liquor. Other articles indicated that a former United States Attorney in Minnesota, while a candidate for governor of that state, had accused Blumenfield of being a racketeer and participating in the looting of the local transit company.⁵

Defendants do not directly challenge the propriety of the court...