La Page v. United States, 12863.

• Decision Date: 29 January 1945
• Docket Number: No. 12863.,12863.
• Citation: 146 F.2d 536,156 ALR 965
• Parties: LA PAGE v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

156 ALR 965, 146 F.2d 536 (1945)

LA PAGE v. UNITED STATES.

No. 12863.

Circuit Court of Appeals, Eighth Circuit.

January 10, 1945.

Rehearing Denied January 29, 1945.

A. M. Cary, of Minneapolis, Minn. (Mark McCabe, of Minneapolis, Minn., on the brief), for appellant.

John W. Graff, Asst. U. S. Atty., of St. Paul, Minn. (Victor E. Anderson, U. S. Atty., of St. Paul, Minn., on the brief), for appellee.

Before STONE, SANBORN, and THOMAS, Circuit Judges.

STONE, Circuit Judge.

This is an appeal from a conviction for violation of the White Slave Traffic Act, 18 U.S.C.A. § 397 et seq.

Appellant urges here three claimed errors: (1) Improper restriction of cross-examination of a witness; (2) error in the charge to the jury, and (3) insufficiency of the evidence to support the crime set forth in the indictment. We have examined the points as to restriction of cross-examination and as to the charge to the jury and find no merit in either.

The serious matter is the sufficiency of the evidence to sustain the crime charged in the indictment. The indictment is in one count under Section 2 of the Act, 36 Stat. 825, U.S.C.A. Title 18, § 398, and in the words of that section, charges that appellant "did cause to be transported and aid and assist in obtaining transportation in interstate commerce" of Dora Thomas "for the purpose of prostitution, debauchery, and other immoral purposes."

The evidence established that Dora Thomas (who was an inmate of a house of prostitution operated by appellant at Fargo, North Dakota) had gone to Minneapolis, Minnesota, for a vacation; that appellant telephoned her, one evening, to return as "one of her girls was leaving" and she would be expected early next morning; that it was understood by both women that Dora Thomas would return to Fargo next day by train; and that she did so return. Baldly, the evidence is that Dora Thomas made this interstate journey at her own expense because of appellant's telephone request and that both women understood the immoral purpose for which the trip was to be taken. Since there was no evidence that appellant gave any aid or assistance in obtaining the transportation, the sufficiency of the proof depends upon whether it shows that appellant "did cause Dora Thomas to be transported" (italics added) within the meaning of section 2 of the Act.

Appellant contends that where, as here, the only act of accused is that of persuading or inducing an interstate trip by common carrier for immoral purposes, such act is not causing such trip within the meaning of section 2 but is, if any crime, the one stated in section 3 of the Act, U.S.C.A. Title 18, § 399.

The pertinent language in the two sections is: Section 2. "Any person who shall knowingly * * * cause to be transported * * * in interstate * * * commerce * * * any woman or girl for the purpose of prostitution"; and section 3, "Any person who shall knowingly persuade, induce * * * any woman or girl to go from one place to another in interstate * * * commerce * * * for the purpose of prostitution." Since, generally speaking, "`cause' is a word of very broad import" (United States v. Kenofskey, 243 U.S. 440, 443, 37 S.Ct. 438, 439, 61 L.Ed. 836)¹ and since to "persuade" or to "induce"² might very well come within a broad definition of "cause", the contention is really that "cause" as used in section 2 is limited by exclusion of the means of bringing about specifically set forth in section 3.

In construing these provisions of the two sections, we start with the rules that a statute should be construed so as to give effect to all of its language³ and that a broad statutory provision will not apply to a matter specifically dealt with in another part of the same Act.⁴ Also, it has been determined that the two sections cover separate crimes.⁵ One distinction between the two sections has, under some facts, been based upon the necessity of use of a common carrier in section 3, § 399, U.S.C.A., Title 18, while no such necessity exists in section 2, § 398, U.S.C.A. Title 18 (Coltabellotta v. United States, 2 Cir., 45 F.2d 117, 119; Blain v. United States, 8 Cir., 22 F.2d 393, 395) but the sections are distinct also irrespective of the common carrier feature and this distinction is between "causing to be transported", etc., under section 2, and "persuading, inducing" etc., to be transported under section 3 (see the Kavalin and Roark cases in note 5). The only way to make that distinction effective and to preserve any effect to this part of section 3 is to eliminate as causes for transportation under section 2 the kinds of causation covered in section 3 by the expressions "persuade, induce, entice, or coerce."

Appellee relies on decisions by this Court as follows: Schrader v. United States, 8 Cir., 94 F.2d 926; Gillenwaters v. Biddle, 8 Cir., 18 F.2d 206; Carey v. United States, 8 Cir., 265 F. 515, and Huffman v. United States, 8 Cir., 259 F. 35. The Schrader case conviction was sustained solely by an application of the "aiding and abetting" statute (Title 18 U.S.C.A. § 550). We need not determine whether that decision should be followed since the fact situation here does not admit of application of section 550 for the reason that appellant here was the only person involved in this unlawful transportation. However, it is not amiss to state that the effect of section 399 upon application of section 550 or upon section 398 was not brought to our attention or considered in the Schrader case.⁶ The Carey case was a general sentence of three months on four counts of indictment — two counts were for furnishing transportation on two trips and the other two counts for "persuading" the victim to make these trips. While the judgment was affirmed, there was no consideration of the point involved here. The Huffman case was conviction on count one and acquittal by verdict on counts two, three and four of an indictment. Count one was for causing a woman to be transported on a trip under section 2; the second count was identical covering a different trip; count three was for persuading, inducing and enticing (under section 3) the same woman on the first trip; and count four was identical covering the other trip. A point presented and determined was whether the acquittal on counts two, three and four was inconsistent with the conviction on count one. The judgment was affirmed. The ground for affirmance is not as distinctly stated as might be (see pages 40-42 of 259 F.) but may fairly be said to be that the several counts pleaded the same transaction in different manner or means of its commission so as "to avoid at the trial an acquittal by reason of any unforeseen lack of harmony between the allegations and the proofs" (page 40 of 259 F.). Also, reliance is placed, by appellee, on Johnson v. United States, 7 Cir., 215 F. 679, L.R.A. 1915A, 862, but this case is not pertinent.

The only one of the above cases which bears upon the point before us is the Huffman case. If that case is to be understood as holding that to "induce," etc., transportation under section 3 is within to "cause" to be transported under section 2, then the authority of that case is materially weakened, if not destroyed, by our later case of Roark v. United States, 8 Cir., 17 F.2d 570, 573, 51 A.L.R. 870. We think the Huffman case should no longer be followed to the effect that to "induce," etc., under section 3 is to "cause" under section 2. Where the accused does no more to "cause", i. e., to bring about, the transportation than is shown here, the crime is a violation of section 3 for persuading or inducing and is not a violation of section 2 for causing unlawful transportation. The test of difference in similar crimes is that there must be a difference in the evidence necessary to establish the particular crime from that required to establish the other crime. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 86 L.Ed. 306; Gillenwaters v. Biddle, 8 Cir., 18 F.2d 206, 208. Here all of the essential evidence is necessary to establish a crime under section 3⁷ and there is no further evidence. In short, if this evidence establishes also a crime under section 2, it must follow that any evidence sufficient to prove a crime under section 3 is likewise sufficient to prove a crime under section 2. Since section 3 is of similar and of narrower application than section 2, the inevitable result is that all meaning of section 3 is included in section 2 and section 3 states no crime not included in section 2. This is to strike out section 3 and give it no effect whatever. We think it is not our province thus to nullify a portion of an Act, by statutory construction, when it is possible to reconcile the two sections giving each a separate meaning and effect and thereby preserve both sections of the Act.

In view of our foregoing determination, it is not necessary to examine the further contention of appellant that the judgment should be reversed under authority of Mortensen v. United States, 322 U.S. 369, 64 S.Ct. 1037.

The judgment is reversed and the case remanded with directions to enter judgment of acquittal.

SANBORN, Circuit Judge (dissenting).

Since the evidence shows that the appellant knowingly brought about the return of Dora Thomas from Minneapolis, Minnesota, to Fargo, North Dakota, for the purpose of prostitution, and therefore caused her to be transported in interstate commerce, I think the conviction of the appellant under section 2 of the White Slave Traffic Act should be sustained. The Supreme Court has held that under that section "transportation of a woman or girl whether with or without her consent, or causing or aiding it, or furthering it in any of the specified ways, are the acts punished, when done with a purpose which is immoral within the meaning of the law." Gebardi v. United States, 287 U.S. 112, 118, 53 S.Ct. 35, 36, 77 L.Ed. 206, 84 A.L. R. 370. The language of section 2 of the Act should be given its full meaning, since that...