Jarabo v. United States, 4134

• Citation: 158 F.2d 509
• Decision Date: 09 December 1946
• Docket Number: No. 4134,4134
• Parties: JARABO v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

158 F.2d 509 (1946)

JARABO v. UNITED STATES.

No. 4134

Circuit Court of Appeals, First Circuit.

December 9, 1946.

COPYRIGHT MATERIAL OMITTED

Walter L. Newsom, Jr., of San Juan, P. R., for appellant.

Francisco Ponsa Feliu, Asst. U. S. Atty., of San Juan, P. R. (Philip F. Herrick, U. S. Atty., of San Juan, P. R., on the brief), for appellee.

Before MAGRUDER, MAHONEY and WOODBURY, Circuit Judges.

WOODBURY, Circuit Judge.

The appellant was indicted in five counts for an equal number of separate and distinct violations of § 2 of the White Slave Traffic Act, 36 Stat. 825, 18 U.S.C.A. § 398. He pleaded not guilty to each count but a jury in the court below found him guilty as charged in the first four counts although not guilty as charged in the fifth. Thereupon he was sentenced to terms of imprisonment on each of the counts upon which he had been found guilty; the sentences to run consecutively. On this appeal from the judgment sentencing him as above the appellant asserts that the Government's evidence was insufficient as a matter of law to sustain the verdict of guilty on the first count; that the court below erred in its instructions to the jury and in the admission of certain evidence, and that the conduct of the court below, of the Assistant United States Attorney who tried the case, and of certain of the Government's witnesses was such as to render the trial unfair. We shall consider these contentions in the order enumerated, except those with respect to the charge, which we shall take up in conjunction with the other asserted errors to which they relate.

The evidence offered by the Government in support of the charge laid in the first count, if believed, as apparently it was, tended to prove the following facts. At the time alleged therein, July 1943, the appellant was enrolled as a student at the University of Puerto Rico. On the afternoon of the 27th of that month he took the young woman named in the count, who was a fellow student, in his automobile to a party given by one of their teachers. They left this party at about 6 p.m. and went to a road-side cafe where they danced and drank until about 10 p.m. when the young woman asked the appellant to take her home. He agreed to do so, but instead he drove her to a secluded place and there, over her objections as she said, had sexual intercourse with her. We think this evidence adequate to sustain the verdict returned on the count in question.

The section of the Act under which the appellant was indicted provides so far as material for the purposes of this appeal that "Any person who shall knowingly transport * * * in any Territory * * * any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose, or with the intent and purpose to induce, entice, or compel such woman or girl to become a prostitute or to give herself up to debauchery, or to engage in any other immoral practice * * * shall be deemed guilty of a felony * * *". Obviously this section does not attempt to punish acts of sexual immorality as such. It leaves acts of that nature to punishment under the police power of the locality where committed. Hoke v. United States, 227 U.S. 308, 321, 33 S.Ct. 281, 57 L.Ed. 523, 43 L.R.A.,N.S., 906, Ann.Cas. 1913E, 905; Malaga v. United States, 1 Cir., 57 F.2d 822, 825. What it condemns, so far as Puerto Rico is concerned, is any intra-territorial transportation, (Crespo v. United States, 1 Cir., 151 F.2d 44, 45) of any woman or girl for the purposes, or with the intentions and purposes, stated therein, and this even though there be no element of commercialism involved. Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 61 L.Ed. 442, L.R.A.1917F, 502, Ann.Cas.1917B, 1168; Cleveland v. United States, 67 S.Ct. 13. So much is conceded. The appellant's contention is that on the facts we have stated the jury were not warranted in drawing the inference that he transported the woman named in count 1 for any forbidden purpose. He says that on the evidence it could only be found that the purposes for which he transported the woman were the innocent ones of going to an afternoon party and then to a place to dance and have a few drinks and thence to return the woman to her home, so that as a result his sexual intercourse with her could only be found to have been a casual event upon a journey undertaken for other purposes. Hence he argues that under the rule of Yoder v. United States, 10 Cir., 80 F.2d 665, 670-672 and cases therein cited, his transportation of the woman could not be found to have been within the condemnation of § 2 of the Act.

We do not agree. While it is true that "guilt under the Mann Act turns on the purpose which motivates the transportation, not on its accomplishment" (Cleveland v. United States, supra, 67 S.Ct. 16) it is well established, as we shall have occasion to point out hereinafter, that evidence of specific instances of sexual immorality indulged in by the accused and the woman or girl alleged to have been transported, if proximate enough in point of time, is relevant on the issue of the purpose or intent of the transportation. However the Yoder case, supra, and the cases cited and discussed at length therein, upon which the appellant relies, also establish that such evidence standing alone is not enough to support a verdict of guilty when there is direct evidence indicating that the transportation alleged in the indictment was undertaken for some innocent purpose. Thus the evidence adduced by the Government in support of count 1 would not warrant the inference that the appellant's transportation of the woman named therein was illegal at its inception. It could only be found that the appellant's purpose at the start of the journey was to take the woman to an afternoon party. But the transportation was not simply from the woman's house to the party and back again with a casual or incidental moral dereliction on the way home. The evidence is that the place where they went to dance and drink was not on the way from the afternoon party to the house where the woman lived, but in the opposite direction, and the evidence indicates that after leaving the cafe the appellant again deviated from the direct route to her home. From this it is clear that on the evidence the jury could well find that at some point on the trip, either on the way from the party to the cafe or after leaving the cafe to go home, the purpose developed in the appellant's mind to transport the woman for the purpose of having sexual intercourse with her. And since the statute specifically covers any transportation whatever in the Territory of Puerto Rico, that is enough to sustain the conviction. And this holds true even though the appellant at the time he transported the woman for the purpose of having sexual intercourse with her also intended eventually to take the woman home. It is enough if one of the purposes of his transportation of her was within the ban of the statute. Carey v. United States, 8 Cir., 265 F. 515, 518.

From the foregoing discussion it is abundantly clear that the appellant's objection to the portion of the charge quoted in the margin¹ is unavailing.

This brings us to the question of the admissibility of the evidence to which the appellant objected at the trial. Before considering it, however, it is necessary to outline the facts with respect to the second and fourth² counts of the indictment.

The Government's evidence indicated that about six months after the occurrence of the events already disclosed, specifically in December 1943, the appellant rented an apartment in San Juan but did not live there, or even take any meals there, except casual lunches on a few occasions, and that he only partially furnished it. Its principal equipment consisted of a large sofa and photographic apparatus consisting of lights, reflectors, etc., and a camera mounted on a tripod and equipped with an automatic shutter.

With respect to the second count the Government's evidence was that the appellant transported the woman named therein, and another woman who is not named in any count, in his automobile from separate places in San Juan to his apartment, and there after a few drinks had sexual intercourse with them. Furthermore, the evidence was that the appellant by means of his automatic camera took pictures of himself and the women, sometimes with both of them together and sometimes with one of them alone, all in the nude, not only in the act of having sexual intercourse, but also while indulging in, to say the least, bizarre sexual practices.

The evidence with respect to the fourth count was that on another occasion the appellant took the woman therein named, also in his automobile, from a place in San Juan to his apartment and there attempted to take pictures of her at least partially undressed, but that she refused to permit him to do so, whereupon he struck her several times and tore some of her clothes off but that she escaped and reported the incident to the insular police authorities.

One of the appellant's exceptions is to the admission of testimony by the woman named in the fourth count that he had beaten her, and to the testimony of others with respect to her physical condition afterward in corroboration thereof. He says that this testimony was immaterial to any issue in the case and was prejudicial. We do not agree. We think the evidence had some tendency to show the purpose for which the appellant transported the woman to his apartment (it is conceded that his purpose in doing so was immoral) and that it was not so prejudicial as to require its exclusion as a matter of law. The Circuit Court of Appeals for the Eighth Circuit in Neff v. United States, 8 Cir., 105 F.2d 688, 690, 691, held evidence precisely similar to this admissible in a case like the present one and we are not disposed to disagree.

The appellant's principal complaint with respect to the admission of evidence is that the court below...