Cwach v. United States, 14878

• Decision Date: 29 April 1954
• Docket Number: No. 14878,14888.,14887,14878
• Parties: CWACH v. UNITED STATES. BATSELL v. UNITED STATES. MOORE v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

212 F.2d 520 (1954)

CWACH v. UNITED STATES.

BATSELL v. UNITED STATES.

MOORE v. UNITED STATES.

Nos. 14878, 14887, 14888.

United States Court of Appeals Eighth Circuit.

April 29, 1954.

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Clarence W. Button, Denver, Colo., for appellant Cwach.

E. C. Mogren, St. Paul, Minn., for appellants Batsell and Moore.

Alex Dim, Asst. U. S. Atty., St. Paul, Minn. (George E. MacKinnon, U. S. Atty., St. Paul, Minn., on the brief), for appellee.

Before GARDNER, Chief Judge, and WOODROUGH and COLLET, Circuit Judges.

WOODROUGH, Circuit Judge.

Defendants Cwach, Batsell, and Moore were jointly indicted, tried, and convicted of violation of Section 2 of the Mann Act, 18 U.S.C.A. § 2422, and of conspiring to violate said Act, 18 U.S. C.A. § 371. Defendant Batsell was also convicted of violating Section 1 of the Mann Act, 18 U.S.C.A. § 2421.

Count I of the indictment charged that,

"On or about the 19th day of December, 1951, Frank Batsell, also known as Frank Batsel, Clifford Eugene Moore, George Sutton, and Frances Cwach, did knowingly persuade, induce and entice a woman to travel by common carrier, to wit: a bus, from Minneapolis, * * * Minnesota, to Sioux Falls, South Dakota, for the purpose of having the said woman engage in the practice of prostitution, debauchery and other immoral practices", in violation of 18 U.S.C.A., Section 2422.

Count II of the indictment charged, under 18 U.S.C.A. § 2421, that defendant Batsell, on or about December 19, 1951, did knowingly procure a bus ticket for the use of a woman to travel in interstate commerce from Minneapolis, Minnesota, to Sioux Falls, South Dakota, for the purpose of having said woman engage in the practice of prostitution, debauchery and other immoral practices.

In Count III of the indictment it was charged that the four named defendants, on or about December 19, 1951, "did conspire to persuade, induce and entice" a woman to travel by common carrier from Minneapolis to Sioux Falls for the purpose of having said woman engage in the practice of prostitution, debauchery and other immoral practices, in violation of Section 371, 18 U.S.C.A. Section 371.

The indictment alleged the following overt acts were committed in furtherance of the conspiracy charged in Count III:

"1. On or about the 19th day of December, 1951, the defendant Clifford Eugene Moore placed a long distance telephone call from Minneapolis, Minnesota to Sioux Falls, South Dakota.

"2. On or about the 19th day of December, 1951, defendant Frank Batsell, also known as Frank Batsel, drove in an automobile a certain woman from or in the vicinity of 704 Humboldt Ave. North, Minneapolis, Minnesota, to the Greyhound Bus Depot at 7th Street and First Ave. North, Minneapolis, Minnesota.

"3. On or about the 19th day of December, 1951, the defendant Frank Batsell, * * *, purchased a ticket on a common carrier for the use of a certain woman to travel from Minneapolis, Minnesota, to Sioux Falls, South Dakota."

Considering the evidence in the light most favorable to the government, as we must, Shama v. U. S., 8 Cir., 1936, 94 F.2d 1, the following facts appear from the record. Gloria Jordell, the principal witness for the prosecution, was the girl friend of defendant Frank Batsell. For some months prior to the date of the alleged offenses, she had been living with Batsell in Minneapolis and supporting both of them from her earnings as a prostitute. At the time of trial of this case she was serving a one-year sentence in the Minneapolis Workhouse for sodomy. She testified that on December 18, 1951, she and defendant Batsell were sitting in a car parked near Howard's Steak House on Olson Highway in Minneapolis. At about 6:00 o'clock in the evening of that day they met defendants Moore and Sutton there. The testimony was that a conversation took place between the witness and the three defendants concerning the "hustling" business and different girls engaged therein. Defendant Moore's wife had formerly worked as a prostitute in Sioux Falls, South Dakota, and defendant Sutton's girl friend, Bonnie LeDay, was then engaged in that occupation there but wished to return to Minneapolis for the Christmas holidays. The defendants asked the witness, Gloria Jordell, if she would go to Sioux Falls as a replacement for Bonnie LeDay for several days. At first she demurred, saying that she had never worked in a house of prostitution before. The defendants, however, convinced her everything would be all right and she finally consented to make the trip. Whereupon, the testimony shows, the group drove to Sutton's home in Minneapolis where, sometime between 8:00 and 10:00 P.M., defendant Sutton placed a long distance telephone call to Number 2-3323 in Sioux Falls, South Dakota. Sutton asked to speak to Bonnie and, after telling her that he was sending Gloria Jordell to Sioux Falls as her replacement for a few days, handed the phone to the witness Jordell who also talked to Bonnie for a few minutes. Sutton then asked to speak to Fran. Sutton asked Fran if it would be all right to send Gloria Jordell to Sioux Falls as Bonnie LeDay's replacement for several days. When Sutton finished speaking to Fran, the witness Jordell talked to her. The witness testified that she told Fran she had never worked in a house of prostitution before and was afraid to come to Sioux Falls. After assuring her that everything would be all right and that she would get along fine, Fran gave the witness a telephone number and address and told her to call as soon as she arrived in Sioux Falls. The evidence further shows that the next day, December 19, 1951, defendant Batsell drove the witness to the bus depot in Minneapolis where he purchased her a ticket to Sioux Falls. The witness arrived in Sioux Falls late that evening, called the number given her by Fran, and was told to come to Frances Rooms, a house of prostitution operated by defendant Frances Cwach. There she met defendant Frances Cwach, Bonnie LeDay, and another girl Virginia Beck. The witness signed the register book, giving her address as Huron, South Dakota, after being advised by defendant Cwach to name some small town in South Dakota as her residence. Bonnie LeDay left shortly thereafter for Minneapolis and the witness worked as a prostitute for several days in Frances Rooms.

The records of the Minneapolis telephone company introduced in evidence showed that a long distance telephone call had been made at 10:00 P.M. on December 18, 1951, from 81 Hoag Ave., Minneapolis, the home of defendant Sutton, to Number 2-3323 in Sioux Falls, South Dakota. Records of the Sioux Falls telephone company showed that Number 2-3323 was the telephone number of Frances Rooms and was listed or charged to defendant Frances Cwach.

Each of the defendants took the stand and denied the occurrence of the alleged telephone call on the evening of December 18, 1951. Although Frances Cwach admitted Gloria Jordell worked at Frances Rooms for several days beginning December 19, 1951, her defense, as well as that of the other defendants, was that the witness, a confessed prostitute, had voluntarily gone there to practice her art, without any persuasion, inducement, or enticement on the part of any of the defendants. Defendant Batsell also denied purchasing a bus ticket for the use of Gloria Jordell in making the trip to Sioux Falls, as charged in Count II of the indictment. Thus the jury was presented with the issues to be resolved. Verdicts were returned against each defendant on each count charged. Defendant Sutton has not appealed from his conviction and sentence.

Defendants Batsell and Moore have filed a short brief in this court, incorporating by reference, insofar as applicable, the arguments and authorities contained in the brief of defendant Cwach. Our discussion will include all of the defendants who have appealed, unless otherwise noted.

Defendant Cwach's first assignment of error is the admission into evidence of testimony concerning the telephone conversation of December 18, 1951. Her argument is: first, that no proper foundation was laid for the admission of such testimony because there was no identification of her as the person with whom Gloria Jordell conversed; and second, such testimony was hearsay as to this defendant.

At the time of the alleged telephone conversation, the witness Jordell had never met Frances Cwach or talked to her on a telephone. Identification of the voice, however, is not a prerequisite to the admissibility of a telephone conversation. Andrews v. U. S., 10 Cir., 1935, 78 F.2d 274, 105 A.L.R. 322; 20 Am.Jur., Evidence, sec. 366. Identity of the person with whom the conversation is alleged to have been had may be established by circumstantial evidence. Testimony and documentary evidence subsequently introduced conclusively established that defendant Cwach was the person with whom Sutton and Jordell conversed on the night of December 18, 1951. The address and phone number given Gloria Jordell by Fran was the address and phone number of defendant Cwach's place of business in Sioux Falls. Records of the telephone company proved that a call was placed and a fifteen minute conversation ensued at or near the time and from the place testified to. Upon arriving at Frances Rooms, Jordell testified that defendant Cwach greeted her with the words, "I was expecting you." Virginia Beck testified that prior to Gloria Jordell's arrival on December 19th, she heard Bonnie LeDay remark about the phone call and discuss her replacement with defendant Cwach. She also corroborated Jordell's testimony that Bonnie LeDay left Frances Rooms shortly after Jordell arrived. These circumstances were sufficient to establish the identity of defendant Cwach as the person with whom the telephone conversation was had. Andrews v. U. S., supra.

Nor is it a valid objection that the testimony was admitted prior to the identification of defendant Cwach. The order of proof in a...