Hilliard v. United States, 4789.

• Decision Date: 21 July 1941
• Docket Number: No. 4789.,4789.
• Parties: HILLIARD v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

121 F.2d 992 (1941)

HILLIARD v. UNITED STATES.

No. 4789.

Circuit Court of Appeals, Fourth Circuit.

July 21, 1941.

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John W. Carter, Jr., of Danville, Va., and T. W. Messick, of Roanoke, Va. (M. M. Kreindler, of New York City, and Waldo G. Miles, of Danville, Va., on the brief), for appellant.

F. S. Tavenner, Jr., U. S. Atty., of Woodstock, Va., and Howard C. Gilmer, Jr., Asst. U. S. Atty., of Pulaski, Va. (R. Roy Rush, Asst. U. S. Atty., of Roanoke, Va., on the brief), for appellee.

Before SOPER, DOBIE, and NORTHCOTT, Circuit Judges.

SOPER, Circuit Judge.

Hughes Robert Hilliard, the appellant in this case, was defendant in the District Court and was convicted and sentenced to serve a term of ten years in the penitentiary and to pay a fine of $10,000, under an indictment which charged that in violation of 18 U.S.C.A. § 400, he induced and coerced Stella Vaughan, a girl under the age of eighteen years, to go from Bristol, Virginia, to New York City to engage in prostitution. The girl testified in substance as follows: In May, 1939, she and an older sister met Hilliard at Bristol and Marion, Virginia, where they were operating a concession at a traveling carnival. He visited the carnival several times and asked Stella Vaughan to go to New York to work in a restaurant which he owned, picturing a life of easy work and plenty of money, with freedom to return to Virginia at will. She had had some domestic difficulties, and, on this account, did not wish to return to her home at Wytheville, Virginia. Instead she went to Bristol and took a room in a hotel, where she was joined by Hilliard who forced her to go to his room and spend the night with him. The next morning she secured some of her clothing from her room, put it in his bag and left Bristol for New York in his automobile. They passed through Wytheville and stopped at Roanoke. There he gave her twenty dollars to buy clothing, and she went shopping alone, and waited for him in one shop from 3 to 9:30 P. M. That night they spent in a tourist cabin. The next day he took her to Lynchburg, where he telehoned the Cadillac Hotel in New York, and told two girls, "Inez" and "Bobby", to meet her at the railroad station in New York. He gave her a railroad ticket and put her on the New York train. On the way she spent two hours alone in Washington. She was met in New York by two girls named Bobby Jenson and Inez Kelly Hilliard, the defendant's wife. They explained that she would have to lead a life of prostitution or starve, and took her to the Cadillac Hotel where, on the following day and the next two weeks, she was so engaged. She then became sick. Hilliard, who in the meantime had reached New York, took her to a doctor and then to his apartment. After an interval of two weeks she was taken back to the hotel and resumed the practice of prostitution. During all of this time she was coerced by the defendant, acting in concert with the other girls, and turned over all of her earnings to him. Finally in September, after he had struck her with a shoe for leaving the hotel alone, she escaped with the assistance of an elevator boy, and returned to her home in Virginia using for the purpose some money he had given her to pay her room rent.

Certain portions of this story were corroborated. It was shown by other witnesses that Hilliard met the girl at Bristol and Marion; that they were both registered at the hotel in Bristol on the same night; that he was in Roanoke while she was shopping; that she went to New York and stopped at the Cadillac Hotel and also at his apartment, and that she was treated by a physician for a venereal disease. In summary, it may be said that while there was abundant evidence to support the charge that Hilliard induced the girl to go to New York for immoral purposes, there was little ground for believing that she was forced into a life of prostitution. When she was fifteen, she ran away from home and married, but separated from her husband after the ceremony and the marriage was annulled. She admitted that on one occasion prior to her stay in New York she had had a sexual experience.

On behalf of the defendant, his wife testified that she first saw the girl when the latter came to the wife's room at the Cadillac Hotel and said that she had hitchhiked to New York to secure medical treatment and to see the Fair, and that Hilliard had told her to look up his wife. The doctor who treated the girl in New York was called as a government witness and testified on cross examination that he first saw her on May 17, 1938, three days after her arrival in New York, and that she had then been infected with gonorrhea for at least two weeks.

It is not claimed that the evidence was insufficient to take the case to the jury, but certain rulings of the District Judge, excepted to by the defendant during the trial, require this summary of the evidence. Specifically, it is contended that errors were made in regard to the admissibility of evidence, and that the conduct of the prosecuting attorney was so improper and prejudicial to the defendant as to require that the judgment be reversed and a new trial granted in the interests of justice. We consider these exceptions in the order in which they have been urged upon us.

First, it is contended that the defendant, who did not desire to take the witness stand, was compelled to testify against himself by the District Attorney in the following fashion: During the cross examination of Stella Vaughan it was brought out that during the period when, according to her testimony, she was held in the Cadillac Hotel in New York by force, she had written certain letters to her mother and a sister at Wytheville, telling them that she was living at the Cadillac Hotel and wanted to come home; but she received no answer to her letters, and therefore thought that they did not go out of the hotel. Thereupon the District Attorney interrupted the examination and said: "I want to call for the production of those letters if you have them. I ask if they have the letters that they produce them in court. I am not saying counsel has them. I am including the defendant".

One of appellant's counsel replied: "I ask that the District Attorney produce the letters if he has them".

Whereupon, the United States Attorney said: "I don't have them".

No objection to the incident was made at the time, but later during the cross examination of the witness the defendant on this account moved for a mistrial and it was overruled. The District Judge made it clear to the jury by the following statement that there was no evidence that either side was in possession of the letters in question. The judge said: "Gentlemen of the Jury, there was some mention made of letters which the witness wrote home. I will say to the jury the demand of the District Attorney on the defendant and the demand on the District Attorney by the defendant — you gentlemen are not to draw any inference that either the Government or the defendant or both, had the letters, or the other. Each side requested the other to produce them and they said they didn't have them and you are not to draw any inference that either side ever had them."

The mere recital of the circumstances sufficiently shows that the defendant suffered thereby no deprivation of his constitutional rights and no embarrassment in his defense. It is true that the prosecuting attorney may not, in the presence of the jury, demand that the defendant produce an incriminating document. See Powell v. Commonwealth, 167 Va. 558, 189 S.E. 433; 110 A.L.R. 90, 101 note; and the rule was applied, for example, in the leading case of McKnight v. United States, 6 Cir., 115 F. 972, where a copy of an incriminating document was put in evidence by the District Attorney accompanied by a demand that the defendant produce the original, and it was held that such action was a violation of the immunity secured to the defendant by the Fifth Amendment to the Constitution. So, in the pending case, the possession of the letters by the defendant would have been weighty testimony against him, indicating that he had intercepted the letters in order to conceal the girl's whereabouts from her family; but the jury was not allowed to entertain any incriminating inference in this respect, for as soon as objection was made, the jury was promptly told by the judge that there was nothing to show that the defendant ever had the letters. The incident was closed without exerting any compulsion upon the defendant, and without prejudice to his case. See Bain v. United States, 6 Cir., 262 F. 664.

The next point relates to the essential element of the government's case under the statute that the girl was under 18 years in the spring of 1939, when it was charged the offense was committed. To establish this fact the government offered a certified copy of the birth certificate showing that Stella May Vaughan (the full name of the prosecuting witness), was born on November 23, 1922, at Wytheville, Virginia, to Walter Frank Vaughan and Ella May Vaughan. The document was certified by the local Registrar of Vital Statistics. A Virginia statute, Code 1936, § 1580, makes such a copy admissible in evidence in the courts of the State. The defendant objected to the certificate at the trial on the ground that it was not authenticated in the manner required by 28 U.S. C.A. § 688, but now concedes that this statute is not applicable. The objection now is that the State statute has no application to a criminal trial in the federal court, and that at common law the certificate of a public officer is inadequate to prove a disputed fact. It is also contended that there was no evidence to show the identity of the prosecuting witness with the person named in the certificate. The extremely trivial character of this point, and indeed of the whole objection, is shown by the evidence of Ella Vaughan, the girl's mother, who testified to the name of the child and the...