Hattaway v. United States

• Decision Date: 15 September 1969
• Docket Number: No. 25587.,25587.
• Citation: 416 F.2d 1178
• Parties: Virginia R. HATTAWAY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

416 F.2d 1178 (1969)

Virginia R. HATTAWAY, Appellant, v. UNITED STATES of America, Appellee.

No. 25587.

United States Court of Appeals Fifth Circuit.

September 15, 1969.

Edward C. Flood, Bartow, Fla., for appellant.

Edward F. Boardman, U. S. Atty., E. J. Salcines, Asst. U. S. Atty., Tampa, Fla., for appellee.

Before THORNBERRY and SIMPSON Circuit Judges, and SUTTLE, District Judge.

SIMPSON, Circuit Judge:

Appellant, Virginia R. Hattaway, was indicted with her husband on a charge of having transported a girl in interstate commerce for the purpose of debauchery and other immoral purposes in violation of Title 18, U.S.C., §§ 2 and 2421, otherwise known as the Mann Act.¹ Her motion for severance for trial was granted. She was tried before a jury and found guilty. On this appeal the question is whether she was denied a fair trial because of error in cross-examining her as to prior acts and in the admission of testimony from rebuttal witnesses as to acts of misconduct other than those alleged in the indictment.

The case for the government was that appellant and her husband in November of 1965 took a young girl on an interstate automobile trip from Winter Haven, Florida, to Moultrie, Georgia, with intermediate stops at various motels in Florida. Mrs. Hattaway drove the car. There was evidence from which the jury could find that appellant, acting on behalf of her husband, registered in the motels under a fictitious name and address and that she, her husband and the young girl went into the motels where sexually immoral acts were committed by appellant's husband upon the young girl with appellant's knowledge and that appellant on two occasions had sexual intercourse with her husband in the presence of the minor. The trip consumed the hours between early Sunday morning and noon Monday. The group had been at a Moultrie motel since sometime after midnight Sunday night, pursuant to Mrs. Hattaway's registration for them, when the minor was dropped off on the street, about noon, two blocks from a bus station. She telephoned home collect, and arrangements were made with Moultrie authorities for her return. The appellant and her husband proceeded to other southern states for several days before returning to Florida. No useful purpose would be served by setting forth the evidence in detail, and it is sufficient to say that the verdict was amply supported by the evidence and the judgment of conviction should be affirmed unless there was reversible error committed during the progress of the trial.

Appellant first complains that she was subjected to cross-examination as to prior acts of misconduct not raised by the direct examination. The questions alleged to constitute improper cross-examination concerned whether or not appellant had had conversations with a named woman with respect to arranging dates with women in behalf of appellant's "boss", or husband. Appellant in response to this line of questioning denied that she met the woman referred to at the time and place specified, or had a conversation with her as to certain sexual conduct, or discussed a husband and wife's dating other people while they were married, or called any other women about any dates. It was not error to permit this cross-examination. The scope of cross-examination is committed to the sound discretion of the trial court. That discretion is not shown to be abused here. Appellant here asserts that she had produced no evidence as to her good character, but when she took the stand in her own behalf she testified that she had been raised in a very Christian home and had always been concerned about the children's welfare. In light of this testimony the questions put by counsel for the government were proper. See McCormick on Evidence (1954), Sec. 42, page 89.

The second point raised by appellant is that rebuttal witnesses were permitted to testify that appellant committed collateral acts of misconduct. Error is claimed in the admission of this testimony and in the failure of the trial court to instruct the jury to disregard it.

As was pointed out above, no error occurred in permitting the government to cross-examine Mrs. Hattaway on having conversations with other women in which she suggested that these women engage in improper sexual conduct with her husband. Since appellant put her character in issue, these questions were not improper. The serious problem now raised by appellant, however, is whether error was committed when the government put on the stand women who testified as to having engaged in conversations with Mrs. Hattaway of the nature that Mrs. Hattaway had previously denied. Appellant relies upon United States v. Masino, 2 Cir. 1960, 275 F.2d 129, United States v. Sweeney, 3 Cir. 1959, 262 F.2d 272, and authorities there cited. These authorities are pertinent here. In Sweeney, for example the Court of Appeals reversed a Hobbs Act conviction for the erroneous admission of the testimony of rebuttal witnesses concerning prior conduct of the defendant. Defendant there had been asked on cross-examination whether he had ever used force on any truck drivers and was asked whether he knew of three named individuals or could recall incidents involving them. He...