Mortensen v. United States, 12531.

• Decision Date: 23 November 1943
• Docket Number: No. 12531.,12531.
• Citation: 139 F.2d 967
• Parties: MORTENSEN et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

139 F.2d 967 (1943)

MORTENSEN et al. v. UNITED STATES.

No. 12531.

Circuit Court of Appeals, Eighth Circuit.

November 23, 1943.

Eugene D. O'Sullivan, of Omaha, Neb. (Thomas W. Lanigan and William P. Mullen, both of Grand Island, Neb., on the brief), for appellants.

Emmet L. Murphy, Asst. U. S. Atty., of Omaha, Neb. (Joseph T. Votava, U. S. Atty., of Omaha, Neb., Fred G. Hawxby, Asst. U. S. Atty., of Lincoln, Neb., and William H. Meier, Asst. U. S. Atty., of Omaha, Neb., on the brief), for appellee.

Before WOODROUGH, THOMAS and JOHNSEN, Circuit Judges.

JOHNSEN, Circuit Judge.

Appellants were convicted under the White-Slave Traffic Act, 36 Stat. 825, 18 U.S.C.A. § 397 et seq., for transporting two girls from Salt Lake City, Utah, to Grand Island, Nebraska, for the purpose of prostitution and debauchery.

They contend that the transportation could not possibly constitute a violation of the Act, because it was merely part of "a circle vacation trip", made from Grand Island, Nebraska, to Yellowstone National Park and Salt Lake City, Utah, and return. They say — to quote the language of their brief — that "the transportation which took place was not transportation in interstate commerce within the intent or meaning of the law, i. e. transportation from a point in one state to a point in another state, but was a transportation from Grand Island, Nebraska, to Grand Island, Nebraska, and the touring through other states on the circle vacation trip was a mere incident to the through transportation and not transportation from one state to another — the transportation denounced by the law."

Appellants are mistaken as to the proper construction of the White-Slave Traffic Act and its object. The Act is entitled "An Act to further regulate interstate and foreign commerce by prohibiting the transportation therein for immoral purposes of women and girls, and for other purposes." Its first section, 18 U.S.C.A. § 397, defines "interstate commerce" for purposes of the Act as "transportation from any State or Territory or the District of Columbia to any other State or Territory or the District of Columbia". Its second section, 18 U.S.C.A. § 398, provides that "Any person who shall knowingly transport or cause to be transported, or aid or assist in obtaining transportation for, or in transporting, in interstate or foreign commerce, * * * any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose, * * * shall be deemed guilty of a felony," etc. This section of the Act plainly was intended to prohibit anyone from bringing a woman or girl across any state line, or of having her so brought, for the purpose of prostitution, etc. — which the jury has found was appellants' intent here in returning the girls to Nebraska. Congress has made no distinction in the Act, such as appellants would have us draw, between the crossing of a state line with an immoral purpose as a matter of a migrant destination and the crossing of a state line with such a purpose as part of some circle or return trip.¹ The statute entirely closes the doors of interstate terstate commerce to any and all such transportation.

The return of the girls in the present case by automobile from Salt Lake City, Utah, to Grand Island, Nebraska, was therefore inarguably transportation in interstate commerce, as defined in section 1 of the Act. With equal certainty, their return across intervening state lines, with the intent to have them re-enter the house of prostitution operated by appellants at Grand Island, Nebraska, was a transporting in interstate commerce "for the purpose of prostitution or debauchery", within the meaning of section 2 of the Act.

The reported decisions confirm this construction of the Act.² In Burgess v. United States, 54 App.D.C. 71, 294 F. 1002, a conviction was upheld, where the defendant, who already had a wife, took a woman from Washington, D. C., to Alexandria, Virginia, in order to marry her, and returned after the ceremony to the District of Columbia, where they cohabited. In Corbett v. United States, 9 Cir., 299 F. 27, the defendant was convicted of causing a woman to be transported for immoral purposes from Spokane, Washington, to Boise, Idaho, where the transportation was merely a return by the woman from a visit made to some of her children, who were ill in Spokane. Defendant and the woman had been illicitly cohabiting in Boise before the trip was made; it was intended that the woman should simply make a visit to Spokane and should return; defendant paid the expenses of the trip; and, after the woman's return to Boise, the parties resumed their cohabitation. The situation is epitomized in the second syllabus point of the case as follows: "That defendant paid for the transportation of a woman from the place they then were into another state, where she went alone, and return, with the intention that she should return, does not prevent the return transportation, if with the requisite intent, from being a violation of White Slave Traffic Act." In United States v. Oriolo, D.C.E.D.Pa., 49 F.Supp. 226, the defendant had taken a woman, who was working for him as a prostitute in Philadelphia, Pa., from that city to Atlantic City, New Jersey, for a day's outing, with the intention that she should resume her prostitution on their return to Philadelphia. He was indicted under the Act for transporting the woman back from Atlantic City to Philadelphia. He contended, as do appellants here, that the whole trip was a mere "unitary circular journey", and that it was therefore not a transportation from one state to another within the meaning and intent of the Act. The court held that the return trip from Atlantic City to Philadelphia was clearly transportation that was prohibited by the terms of the statute and that the defendant therefore was guilty of a violation of the Act.

As opposed to these decisions, we have been able to find only one case, United States v. Wilson, D.C.E.D.Tenn., 266 F. 712, and it is on this case that appellants place their reliance. There, the transportation of a woman, for immoral purposes, from Nashville, Tennessee, through a part of Alabama, to Chattanooga, Tennessee, was held not to be a violation of the Act, on the ground that the...