Mellor v. United States

• Decision Date: 16 June 1947
• Docket Number: 13350.,No. 13349,13349
• Citation: 160 F.2d 757
• Parties: MELLOR v. UNITED STATES. FORD v. SAME.
• Court: U.S. Court of Appeals — Eighth Circuit

160 F.2d 757 (1947)

MELLOR v. UNITED STATES.

FORD v. SAME.

Nos. 13349, 13350.

Circuit Court of Appeals, Eighth Circuit.

April 10, 1947.

Writ of Certiorari Denied June 16, 1947.

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Eugene D. O'Sullivan, of Omaha, Neb. (Hugh J. Boyle, of Omaha, Neb., on the brief) for appellants.

A. Z. Donato, Asst. U. S. Atty., of Omaha, Neb. (Joseph T. Votava, U. S. Atty, of Omaha, Neb., on the brief), for appellee.

Before SANBORN, WOODROUGH, and JOHNSEN, Circuit Judges.

Writ of Certiorari Denied June 16, 1947. See 67 S.Ct. 1734.

WOODROUGH, Circuit Judge.

These consolidated appeals present for our review judgments of conviction under an indictment charging Ralph B. Mellor, appellant in No. 13,349, and Charles J. Ford, appellant in No. 13,350, jointly with violation of Section 2 of the Mann Act, 18 U.S.C.A. § 398. The indictment was in a single count and charged that on or about August 10, 1944, appellants "did unlawfully, wilfully, knowingly, and feloniously transport and cause to be transported, and aid and assist in obtaining transportation for and in transporting, in interstate commerce from the ranch home of Defendant Ralph B. Mellor in Holt County, in the Norfolk Division of the District of Nebraska, Circuit aforesaid, and within the jurisdiction of this Court, to the City of Moran, in the State of Wyoming, two certain girls, to-wit, Doreen L. Hasenpflug and Lois Jean Milacek, for the purpose of prostitution and debauchery and for other immoral purposes, and with the intent and purpose on the part of them, the said Ralph B. Mellor and Charles J. Ford, and each of them, to induce, entice, and compel said girls, and each of them, to give themselves up to debauchery and to engage in other immoral practices; contrary to the provisions of the statute in such case made and provided, and against the peace and dignity of the United States of America (18 U.S.C. 398 18 U.S.C.A. § 398)."

Defendants filed motion for bill of particulars, a motion to quash the indictment and a special demurrer to the indictment. These motions were overruled, defendants were arraigned, pleaded not guilty and the case proceeded to trial before a jury. Motions for directed verdict filed at the close of the government's evidence and renewed at the close of defendants' evidence were overruled and defendants were found guilty. A motion for new trial was overruled and defendants were each sentenced to three years imprisonment. In ruling on the motion for new trial the district court passed on substantially the same contentions presented here and we have the benefit of an exhaustive and well considered opinion of the learned district judge setting forth the reasons for denial of the motion. 71 F.Supp. 53.

The appellants assign as error the action of the district court in overruling the motion for bill of particulars. No authority is cited in support of this assignment and it will suffice to observe that the motion was addressed to the sound discretion of the trial judge, whose decision was final in absence of clear abuse of such discretion. Kempe v. United States, 8 Cir., 151 F.2d 680; Braatelien v. United States, 8 Cir., 147 F.2d 888; Pines v. United States, 8 Cir., 123 F.2d 825.

"The rule is that if a defendant is not sufficiently informed by an indictment of the nature and cause of the accusation made against him and is fearful that upon trial he will be surprised by the evidence of the government, he can apply for a bill of particulars, which the trial court, in the exercise of a sound legal discretion, may grant or refuse, as the ends of justice require. It necessarily follows that a clear abuse of judicial discretion in denying an application for a bill of particulars must be shown in order to justify a reversal. Wong Tai v. United States, 273 U.S. 77, 82, 47 S.Ct. 300, 71 L.Ed. 545." Hewitt v. United States, 8 Cir., 110 F.2d 1, 7.

That appellants were neither misled, surprised nor confused by the language of the indictment and denial of the motion is evident on examination of the record. The indictment informed defendants of the offense with which they were charged and was sufficient to protect them subsequently, if necessary, in a plea of former jeopardy.

By appropriate assignments of error the sufficiency of the indictment is challenged. It is first contended that the indictment is so vague and indefinite as to result in denial of due process of law to defendants in violation of the Fifth Amendment and to violate defendants' rights under the Sixth Amendment to be informed of the nature and cause of the accusation against them.

The statute under which defendants were indicted provides in pertinent part:

"Any person who shall knowingly transport or cause to be transported, or aid or assist in obtaining transportation for, or in transporting, in interstate * * * commerce * * * 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, and upon conviction thereof shall be punished by a fine not exceeding $5000, or by imprisonment of not more than five years, or by both such fine and imprisonment, in the discretion of the court." 18 U.S.C.A. § 398.

It is immediately apparent that the indictment follows closely the language of the statute and supplies the specific information applicable to the particular case. In an indictment for a statutory offense it is generally sufficient to describe the offense in the words of the statute. Stokes v. United States, 8 Cir., 39 F.2d 440; Galatas v. United States, 8 Cir., 80 F.2d 15, certiorari denied, 297 U. S. 711, 56 S.Ct. 574, 80 L.Ed. 998. Section 2 of the Mann Act with which we are presently concerned sets forth the elements of the offense directly and with certainty, and the indictment framed in the language of the statute is sufficient against attack on the constitutional grounds. Blain v. United States, 8 Cir., 22 F.2d 393; United States v. Hunt, 7 Cir., 120 F.2d 592, certiorari denied, 314 U. S. 625, 62 S.Ct. 97, 86 L.Ed. 502; Hughes v. United States, 6 Cir., 114 F.2d 285.

The indictment challenged here bears striking resemblance to that upheld in United States v. Hunt, supra. While the mode of transportation was set forth in the indictment in the Hunt case and was not set forth in the present indictment, it is settled law that such an averment is not necessary in a prosecution under Section 2 of the Mann Act. Blain v. United States, supra; Cf.: Wilson v. United States, 232 U. S. 563, 34 S.Ct. 347, 58 L.Ed. 728.

The indictment is challenged further for its use of the conjunctive "and" in the charging parts, rather than the disjunctive "or" used in the statute. The contention is that this constituted an attempt by the United States Attorney to usurp the exclusive power of Congress to legislate under Art. I, Section 1 of the Constitution. But appellants do not point out, nor are we able to discern, how the power of Congress is in any manner affected. No authority is cited in support of appellants' contention and we are able to find none. On the other hand, the propriety of the use of conjunctive averments in an indictment based on a statute phrased in the disjunctive has long been recognized. Crain v. United States, 162 U.S. 625, 16 S.Ct. 952, 40 L.Ed. 1097; Ackley v. United States, 8 Cir., 200 F. 217; O'Neill v. United States, 8 Cir., 19 F.2d 322; Wolpa v. United States, 8 Cir., 86 F.2d 35; Pines v. United States, 8 Cir., 123 F.2d 825; Price v. United States, 5 Cir., 150 F.2d 283. As pointed out in the Ackley case, 200 F. at page 221:

"* * * if the statute denounces several things as a crime, the different things thus enumerated in the statute being connected by the disjunctive `or,' the pleader must connect them by the conjunctive `and' before evidence can be admitted as to more than the one act. To recite that the defendant did the one thing or another makes the indictment bad for uncertainty. To charge the one thing and another does not render the indictment bad for duplicity, and a conviction follows if the testimony shows the defendant to be guilty of either the one or the other thing charged."

It is most seriously urged that the indictment is duplicitous, and charges several offenses in one count. It is contended that it was improper to join two defendants in a single count indictment charging a substantive offense and not a conspiracy. However, the right to charge two defendants jointly in a single indictment is recognized in a number of well reasoned cases, which hold that such procedure does not result in misjoinder of defendants, nor render the indictment subject to attack for duplicity. United States v. Mullen, D.C., 7 F.2d 244; Lucas v. United States, 70 App.D.C. 92, 104 F.2d 225; United States v. Hunt, 7 Cir., 120 F.2d 592. The Hunt case was a Mann Act prosecution against two defendants who were jointly indicted and who requested a severance for the purpose of trial. The district court denied the severance and the Circuit Court of Appeals, in affirming the judgment, said 120 F.2d 593:

"We see no error in the trial court's refusal of severance. The two defendants acted jointly in most of the transactions which went to make up the crime charged. Most of the acts were done in each other's presence. Justice could be better served by a joint trial. The District Court correctly exercised its discretion. Lucas v. United States, 70 App.D.C., 92, 104 F.2d 225.

"* * * The six counts here charged were properly joined together, since all arose out of the same general transaction. Their allegations charged different phases of the same criminal plan, involving the same girls and the same general period of time."

In the Mullen case, supra, the court said, 7 F.2d at page 246:

"There was a suggestion of...