Chargois v. United States, 15770.

• Decision Date: 02 June 1959
• Docket Number: No. 15770.,15770.
• Citation: 267 F.2d 410
• Parties: Leroy CHARGOIS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

267 F.2d 410 (1959)

Leroy CHARGOIS, Appellant, v. UNITED STATES of America, Appellee.

No. 15770.

United States Court of Appeals Ninth Circuit.

June 2, 1959.

Peter J. Kalamarides, Anchorage, Alaska, for appellant.

William T. Plummer, U. S. Atty., George N. Hayes, Asst. U. S. Atty., Anchorage, Alaska, for appellee.

Before ORR, BARNES and JERTBERG, Circuit Judges.

BARNES, Circuit Judge.

Appellant was charged in a two count indictment with the violation of §§ 2421 and 2422 of Title 18 U.S.C. (White Slave Traffic Act).¹ Count I covered the alleged transportation in "foreign commerce" between San Francisco and Anchorage, Territory of Alaska, in April, 1955. Count II covered alleged transportation by common carrier between Fairbanks and Anchorage, within the Territory of Alaska, on October 5, 1954.

The "victim" in each count engaged in prostitution in Alaska subsequent to each act charged, as she had for several years prior to the time the appellant first met her.

Appellant was tried and convicted by a jury on both counts. He urges as error three points:

I. Fatal variance between the indictment on Count I and the proof, because of the reference to "foreign commerce."

II. Insufficiency of the evidence to support a conviction on either count.

III. Error in instructions.

We will treat the first point, and then consider the second and third together.

The indictment charges the victim was "transported as a passenger on common carriers in foreign commerce, to-wit: from San Francisco, California, to Anchorage, Territory of Alaska, for the purpose of prostitution, debauchery and other immoral purposes, and said defendant thereby knowingly caused in the manner aforestated said woman to be transported as a passenger between the points aforementioned for the purpose of prostitution, debauchery and other immoral purposes."

Obviously the words "foreign commerce" were included in error. But they were mere surplusage. The point of departure and point of arrival were correctly specified. Neither appellant nor his counsel were misled, nor prejudiced in the slightest degree.

The essential elements of the crime were charged. "Even if an essential averment in an indictment is faulty in form; yet, if it may by fair construction be found within the text, it is sufficient." Craig v. United States, 9 Cir., 1936, 81 F.2d 816, 822. There was no prejudicial error.

We next consider error in the instructions. Appellant relies principally on two propositions: One, that there was no cautionary instruction given relating to the lack of credibility of a prostitute; two, that the language of the statute, to-wit: "debauchery" and "other immoral purposes," was not properly defined.

Authority is cited us that it is not error to give such a cautionary instruction. But no authority is cited that requires the trial court in every case to give a cautionary instruction with respect to the testimony of a self-confessed, or any, prostitute when there are general instructions on the credibility of witnesses. Hilliard v. United States, 4 Cir., 1941, 121 F.2d 992, 1000, certiorari denied, 314 U.S. 627, 62 S.Ct. 111, 86 L.Ed. 503; Sandquist v. United States, 10 Cir., 1940, 115 F.2d 510. The court did give the usual, ordinary instructions with regard to the credibility of witnesses. We deem them sufficient.

As to the definition of the terms used in the statute, a two-pronged attack is made by appellant. First, he correctly states the statute refers to "other immoral purposes," and objects to the term "other immoral practice." But that exact language is likewise used in the statute, so that the terms are for practical purposes interchangeable. The transcript shows the court did instruct, in one place, as to "any other immoral practice." But, the court instructed only as to the meaning of "other immoral purpose," as follows:

"Other immoral purpose * * is not confined to commercialized vice or prostitution for gain. It includes any other sexual acts which are contrary to the laws pertaining to morality in this jurisdiction."

In determining whether such an instruction was sufficient, or insufficient and erroneous, it becomes necessary to consider appellant's third alleged error, the insufficiency of the evidence as to each count.

As to both counts, there exists in the record sufficient substantial evidence to permit the jury to conclude that the purpose of each trip was to permit the victim to engage in prostitution. Thus the first and third essential elements of the crime were established, i. e., transportation, with the intent and purpose of placing the victim in prostitution. The second essential element that the victim was persuaded, induced, enticed or coerced into the transportation is more difficult to establish. From a careful study of the complete transcript, we are satisfied that there was sufficient evidence from which a jury could lawfully determine that such persuasion, inducement, enticement or coercion existed as to the second count. There is substantial evidence as to that count that the appellant supplied the cost of the transportation to the victim, and went from Anchorage to Fairbanks to ensure her return with him to Fairbanks. They traveled back together. There exists the claim that this trip was solely for the purpose of medical care, yet the victim was receiving adequate medical care in Fairbanks. She testified that a second dominant and substantial purpose, other than medical care, was to return to Fairbanks to continue as a prostitute. And it might well be inferred by a trier of fact that the appellant was primarily interested in the victim regaining her health so that she could return to prostitution and support him as quickly as possible.

Thus the clear and substantial evidence as to the joint intent to engage in prostitution after the transportation proved in Count II eliminates, we hold, any error in the instructions relating to "debauchery" and "other immoral purposes."

But the evidence supporting the first count is not as clear, convincing, or substantial. True, the complaining witness states the appellant paid her way. Such evidence is always important. But this testimony is weakened by the testimony of the government's witness, Rayford, who had actually produced the money used to buy her ticket; by the testimony of the victim herself as to repaying the cost of transportation; and...