Bush v. United States

• Decision Date: 02 June 1959
• Docket Number: No. 15693.,15693.
• Citation: 267 F.2d 483
• Parties: Thomas Curtis BUSH, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

267 F.2d 483 (1959)

Thomas Curtis BUSH, Appellant, v. UNITED STATES of America, Appellee.

No. 15693.

United States Court of Appeals Ninth Circuit.

June 2, 1959.

Thomas Curtis Bush, Texarkana, Tex., in pro. per. also brief by court appointed counsel Arthur Warner, Los Angeles, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., T. Conrad Judd, Robert John Jensen, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before CHAMBERS, BARNES and JERTBERG, Circuit Judges.

BARNES, Circuit Judge.

Appellant was convicted by a jury of violating 18 U.S.C. § 2421, which prohibits knowingly transporting a woman in interstate commerce for prostitution or any other immoral purpose. A new trial was denied appellant, and he was sentenced to three and one-half years imprisonment.

Transportation of the seventeen year old complaining witness in an auto owned by defendant from Texas to California was freely admitted by defendant. The two were accompanied on the trip by the defendant's wife. The latter was a prostitute, known to be such by defendant before he married her, and to his knowledge, engaged in that profession at the Dixie Hotel in Beaumont, Texas, when defendant first met the complaining witness in Dallas, Texas.

The fact that the complaining witness engaged in prostitution immediately after her arrival jointly with defendant and his wife, in California, is likewise undisputed. Whether or not the complaining witness and the defendant engaged in immoral acts on the trip to, and after arrival within, California is disputed.

Because of this undisputed testimony, much of it given by defendant himself, the sole issue remaining for solution was the intent of defendant — did he have the intent, purpose and motive in bringing the complaining witness to California to have her engage in immoral practices? This, of course, was an essential constituent element of the offense charged. Dunn v. United States, 10 Cir., 1951, 190 F.2d 496. It is not necessary that such intent be the sole and single purpose of the transportation, if such purpose and intent was one of the reasons for the transportation. Masse v. United States, 5 Cir., 1954, 210 F.2d 418, certiorari denied 347 U.S. 962, 74 S.Ct. 711, 98 L.Ed. 1105.

It was defendant's position that he was the innocent victim of the complaining witness, that he had merely aided her to come to California from Texas to visit friends. According to defendant's trial counsel, "the girl herself duped the defendant as a professional prostitute and tried to lure him into an entrapment * * * to get out of some troubles of her own."

Such a defense when urged, caused the trial court to express surprise. "Do you mean to say," said the trial judge "that this defendant here is an innocent individual that has been duped by this young girl?" This, and other statements of the trial court, will be considered later.

With respect to the conflicting stories told by the principals as to the defendant's purpose and intent, it is sufficient to state that they presented a question of fact to be passed upon by the jury at the time of trial, and by the trial judge on the motion for new trial. Such a determination of fact is binding on this Court unless clearly erroneous. Bryson v. United States, 9 Cir., 1956, 238 F.2d 657, 662, certiorari denied 355 U.S. 817, 78 S.Ct. 20, 2 L.Ed. 2d 34; Hutson v. United States, 9 Cir., 1956, 238 F.2d 167, 170; Adolfson v. United States, 9 Cir., 1947, 159 F.2d 883, certiorari denied 331 U.S. 818, 67 S.Ct. 1307, 91 L.Ed. 1836. Cf., Fed. R.Civ.P. 52(a), 28 U.S.C.A. We need do no more than to recite some of the more important undisputed facts to conclude that they, together with the logical inferences to be drawn therefrom, clearly justified the verdict of guilty.¹

This appeal originally presented to this Court two briefs for appellant; one presented by defendant in pro. per. and one by his counsel.² We postponed the hearing of this appeal at defendant's suggestion³ until we were certain that the defendant was properly represented by counsel of his choice and was satisfied with that representation and satisfied to have such counsel proceed with the appeal.⁴

On this appeal three principal matters are urged:

(1) Misconduct of the trial court in making comments prejudicial to defendant.

(2) Error in the admission of evidence.

(3) Error in denial of defendant's motion to require the production of certain "make-sheets" by the prosecution.

Defendant points out some twenty-two places in the transcript where the court made some ruling, statement, or comment, indicating that the defendant's counsel was unduly prolonging his examination of witnesses or that he was harassing witnesses, or impugning the ability or integrity of defense counsel, or expressing "undue solicitude" for the prosecutrix, emphasizing the probability of her testimony, or that defense counsel was obtaining some personal satisfaction from requiring the witness to relate details concerning sexual acts.

From the record it appears obvious that the trial court resented defense counsel's trial tactics. He so expressed himself outside of the presence of the jury, and strongly implied it within the presence of the jury. But he also did two things of extreme importance: (1) He advised the jury on several occasions that his rulings and comments, if they raised any reflections on what was occurring in the courtroom, were reflections cast on defendant's counsel alone, not on defendant.⁵ Shockley v. United States, 9 Cir., 1948, 166 F.2d 704, 711-712. (2) The court refused to restrict defendant's counsel's cross-examination, either of the complaining witness, or of any other witness, in the slightest degree.⁶ He so ruled favorably to defendant despite his incredulity expressed as to the theory underlying the defense. He ruled in defendant's favor, on government's objections, far more often than he ruled against defendant. He did this despite conduct and statements on the part of defendant's counsel that verged upon, if they did not reach, impropriety.

The government might well have objected to the wide latitude the trial court permitted the defense counsel. While we cannot approve, as good judicial practice, all statements made by the trial judge, we find under the circumstances no clearly prejudicial error which affected defendant's right to a fair trial. Cf., D'Aquino v. United States, 9 Cir., 1951, 192 F.2d 338, 367, certiorari denied 343 U.S. 935, 72 S.Ct. 772, 96 L.Ed. 1343.

For a further important reason defendant cannot here complain. No objection was made to twenty of the twenty-two presently alleged errors. One of these alleged errors took place outside of the jury's presence. On three occasions defense counsel moved for a mistrial, once outside the presence of the jury.

Two of the three motions for a mistrial are quoted in full herein (n. 5, 6, supra). The third motion was made in chambers subsequent to the question hereinbefore quoted expressing surprise, made in open court by the trial judge, as to defense counsel's theory of the case. It came after defense counsel had said:

"I should be permitted to show that the state of mind of the defendant was totally innocent throughout. This girl herself duped the defendant as a professional prostitute and tried to lure him into an entrapment in this very court on these grounds to get out of some trouble of her own.

"The Court: Do you mean to say that this defendant here is an innocent individual that has been duped by this young girl?

* * * * * *

"Go ahead if that is your presumption."

Granted that this question might well have been left unasked in the presence of the jury, it still remained a question as to a legal theory. It was no comment on the evidence, or the credibility of any witness, nor on the credibility of the defendant, nor of his guilt or innocence of the crime with which he was charged. It was followed by a ruling which permitted defense counsel the widest latitude in attempting to establish the validity of his theory of defense.

Merely because a statement is made or question asked by court or counsel in the heat of a spirited trial which subsequently in the cool ivory tower of appellate court chambers seems inappropriate, does not make the stating nor the asking prejudicial error. Brown v. United States, 9 Cir., 1955, 222 F.2d 293, 297-298; D'Aquino v. United States, supra; Pacman v. United States, 9 Cir., 1944, 144 F.2d 562, certiorari denied 323 U.S. 786, 65 S.Ct. 278, 89 L.Ed. 627; Lewis v. United States, 6 Cir., 1926, 11 F. 2d 745, 747.

In a careful review of the whole record, we can find no prejudicial error created by any action of the trial court.

We come to appellant's second charged error — the introduction of testimony that defendant had made an extrajudicial admission he was a pimp.

On direct examination, defendant admitted over two hundred arrests in Texas in four years; eight "charges" and two convictions. On cross examination and without objection, defendant admitted that he "had had something to do with prostitution prior to 1954." On redirect examination by his own counsel he stated he had been "associated in this business" of prostitution, but "did not continue the business or associate in it" after his marriage in 1954. It was then that the girl later to become his wife was engaged in prostitution.

When defense objections, on the ground of immateriality for impeachment purposes were overruled to the question as to whether defendant had admitted to an F.B.I. agent he had once been a pimp, he stated he might have said so.⁷

There is no question but that there exists a general rule that evidence of appellant's previous misconduct or other criminal acts is inadmissible. Benton v. United States, 4 Cir., 1956, 233 F. 2d 491.

One well recognized exception is that proof of a prior conviction of a felony is admissible to impeach a witness' credibility. Meeks v. United States, 9 Cir., 1947, 163 F.2d 598; NLRB v. Baldwin...