Griffin v. United States

• Decision Date: 03 February 1960
• Docket Number: No. 17656.,17656.
• Parties: Herman Lee GRIFFIN and Hugh James Resmondo, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

272 F.2d 801 (1959)

Herman Lee GRIFFIN and Hugh James Resmondo, Appellants, v. UNITED STATES of America, Appellee.

No. 17656.

United States Court of Appeals Fifth Circuit.

December 3, 1959.

As Corrected on Denial of Rehearing February 3, 1960.

Walter C. Shea, John Paul Howard, S. Perry Penland, Jacksonville, Fla., for appellants.

John L. Briggs, U. S. Atty., E. Coleman Madsen, Chief Asst. U. S. Atty., Jacksonville, Fla., James L. Guilmartin, U. S. Atty., S. D. Florida, Miami, Fla., for appellee.

Before HUTCHESON, TUTTLE and WISDOM, Circuit Judges.

As Corrected on Denial of Rehearing February 3, 1960. See 273 F.2d 958.

TUTTLE, Circuit Judge.

These are appeals by two defendants tried together and convicted under separate indictments for violating the first section of the White Slave Act, Title 18 U.S.C.A. § 2421.¹ This section proscribes knowingly transporting a woman in interstate commerce for prostitution. The indictments tracked the statutory language.

The principal grounds of appeal are (1) illegal consolidation of the cases for trial, (2) fatal variance between proof and indictment, and (3) insufficiency of evidence to convict.

Each party complains that by joining the two cases for trial each of them was prejudiced by being tied in with all the worst of the testimony against the other, as well as that against himself. This would, of course, be a valid contention, if the joinder for trial was improper. The rule as to joinder for trial is Rule 13, F.R.Cr.P., 18 U.S.C.A.:

"Rule 13. Trial Together of Indictments or Informations The court may order two or more indictments or informations or both to be tried together if the offenses, and the defendants if there is more than one, could have been joined in a single indictment or information. The procedure shall be the same as if the prosecution were under such single indictment or information."

In order to determine what offenses "could have been joined in a single indictment" we look at Rule 8, F.R.Cr.P. which provides:

"Joinder of Offenses and of Defendants

"(a) Joinder of Offenses. Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.

"(b) Joinder of Defendants. Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count."

It thus becomes necessary to determine whether these two indictments could have been joined. Appellants contend that whether the two offenses are based on the same act or transaction or are of the same or similar character must be gleaned from the face of the indictments; that where each indictment is complete on its face and alleges a single offense by a single defendant, the court could not legally join the two for trial with the expectation that it would later develop that they were in fact joinable. No authority is cited for this proposition. We conclude that it is not the law. If in fact the proof adduced on the trial of consolidated cases demonstrates that the two separate offenses could have been charged in a single indictment, the rule is satisfied. This is clearly implied by the court's comment as to the case of Pointer v. United States, 151 U.S. 396, 14 S.Ct. 410, 38 L.Ed. 208, in McElroy v. United States, 164 U.S. 76, 17 S.Ct. 31, 41 L.Ed. 355. See also Jordan v. United States, 5 Cir., 120 F.2d 65. If this were not the law nevertheless it would be apparent that on such a trial no prejudicial error would have occurred because under the law the two defendants could have been tried jointly if indicted jointly.

We think it amply clear that the proof adduced on the trial demonstrated that whatever acts were done by Resmondo relative to the "transportation" of Betty Tyson were equally the acts of Griffin and that whatever acts were done by Griffin relative to the "transportation" of Hazel Justice were equally the acts of Resmondo. Both men could have been jointly indicted for each of the separate offenses, either in two counts of a single indictment or in two separate indictments triable together.

It is not necessary to repeat at length the sordid details that were testified to by one of the prosecuting witnesses, a professional prostitute. The two men and two women together planned and carried out several weeks of activity in Florida during which the jury could find that the two men arranged for the women to engage in prostitution in Tallahassee, Orlando and Jacksonville; the latter turned substantial sums of money over to the two defendants; the quartet then discussed a trip to Atlanta which had been previously mentioned in the absence of Griffin. Resmondo and Betty Tyson first suggested a particular hotel in Atlanta, and Tyson telephoned one of the bellboys at this hotel and made arrangements for the two women to come there. Resmondo telephoned the airline ticket office and reserved two seats for the women; together they then got into Resmondo's automobile, where Griffin gave them together, as they were driving to the airport, $50 in cash; they left the women at the airport after putting their bags out; thereupon the two women went together to Atlanta by air, using the reservations made for them, and went to the hotel and "worked" about a week; the witness Justice then telephoned Griffin and told him she was returning to Jacksonville, and he told her "it would be alright." She flew home and he met her and soon Resmondo joined them, after which, in Resmondo's presence, Justice gave Griffin $180 of the prostitution money earned by her and Tyson in Atlanta; later the same day Resmondo took the Justice woman back to the airport to meet the "victim," Tyson. They parked and waited for her to come out and when she did she got in a cab and they followed her to see where she went. The two women pooled the money they made while in Atlanta.

If this evidence established a case against either man as relates to his transportation of one of the victims, it undoubtedly supports a finding that all that was done was done by them jointly and they could have been indicted and tried on a single indictment.

We now come to the appellant's contentions that there was a failure of proof of transportation. This contention is coupled with their complaint that the trial court erred in charging the jury that transportation could be proved by showing that the defendants had wilfully "caused" the women to be transported. There are two reasons why no error can be assigned as to this charge. The first reason is that the defendants embodied substantially that charge in their requested charge No. 9. They submitted the following request:

"9. The Court charges you that the Government has not proved that the defendant physically transported the woman as alleged in the indictment, therefore, to convict the defendant you must find from the evidence that the defendant wilfully `caused\' the woman to be transported as alleged in the indictment.

"The word `caused\' is defined to you to mean to effect a thing as an agent or to bring it about, (wilfully — four 32-A page-20FRD) "In determining whether or not the defendant `caused\' the woman to be transported as alleged in the indictment, you are instructed not to consider any evidence which might tend to show that the defendant persuaded, induced, enticed or coerced the woman to go from Jacksonville, Florida to Atlanta, Georgia, for the purposes of prostitution or debauchery."

The court gave in its charge the following:

"So, in this case, the Government has not proved that the defendant, either defendant in either case, physically transported the woman named in the indictment in each case interstate that is, across a State line. Therefore, to convict the defendant in either case, you must find from the evidence that the defendant will fully sic caused the woman to be transported as alleged in the indictment.

"The word `caused\' means to effect the thing as an agent or to bring it about. This must be proved beyond a reasonable doubt, as must the other elements of the offense charged in each case, please bear in mind."

The defendants made no objection to the failure of the court to include the last part of the requested charge.

The court also charged 18 U.S.C.A. § 2(a) and (b) as follows:

"Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal."

and

"Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal."

This section, spoken of as the aider and abetter statute, was properly charged in light of defendants' own request and in light of the terms of the statute itself. The effect of this charge is to say that if Resmondo or Griffin caused the airline to transport the women "which if directly performed by them * * * would be an offense...