Pine v. United States

• Decision Date: 27 May 1943
• Docket Number: No. 10336.,10336.
• Citation: 135 F.2d 353
• Parties: PINE v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

135 F.2d 353 (1943)

PINE v. UNITED STATES.

No. 10336.

Circuit Court of Appeals, Fifth Circuit.

April 26, 1943.

Rehearing Denied May 27, 1943.

Vincent C. Giblin and James M. Carson, both of Miami, Fla., for appellant.

Herbert S. Phillips, U. S. Atty., of Tampa, Fla., for appellee.

Before HUTCHESON, HOLMES, and McCORD, Circuit Judges.

HUTCHESON, Circuit Judge.

Charged with having conspired with named and unnamed persons to violate the Mann Act,¹ that is to say, with having conspired to transport women and girls in interstate commerce to work in the LaPaloma Club in Miami under depraved and debauched surroundings and conditions which would induce and lead them to a course and life of sexual immorality, appellant was found guilty as charged and sentenced to be fined and imprisoned. Conceding that the indictment charges an offense under Athanasaw v. United States, 227 U.S. 326, 33 S. Ct. 285, 57 L.Ed. 528, Ann.Cas.1913E, 911, and not seriously contesting that the LaPaloma Club was operated under surroundings and conditions, and that women were unlawfully transported for work in it, as charged, appellant here insists: that there is no evidence whatever that he was a party to, or even so much as knew of the existence of, the conspiracy charged; that his motion for a directed verdict should have been granted; and that for the failure to grant it, the judgment must be reversed. In addition, he urges upon us that there was prejudicial error in the conduct of the trial (1) in that the court did not prevent, and not preventing failed to protect defendant from the consequences of, misconduct of the government's attorneys, and (2) in that the court refused to give in charge to the jury defendant's requested charges Nos. 6, 10, 24 and 29.

Because, if we are to reverse for errors committed in the conduct of the trial, we should do so without comment on the sufficiency of the evidence to support the conviction, we will first consider those assigned errors. Of these, those based on misconduct of government's counsel are not supported by exceptions taken at the time of their occurrence or requests to charge with reference to them, nor were they assigned by the defendant as errors "on which he will rely in the prosecution of his appeal". They are brought to our attention for the first time in appellant's brief, by what he calls a new assignment, that he did not have a fair trial because of the flagrant misconduct of the prosecution.

We are prepared to hold that there might be instances of such flagrant misconduct on the part of the government as that, though not excepted to at the time of their occurrence, and not claimed as error except in the brief, we would reverse for them. This, however, is certainly not such a case. A most careful reading of the record as a whole in the light of the claims of misconduct set out in Appendix B of appellant's brief leaves us in no doubt that the conduct of the prosecution did not constitute reversible error. Defendant was himself a lawyer of the widest experience in the conduct of criminal cases. For many years as state prosecutor, he had prosecuted in criminal cases in that county, and for as many more he had defended in them. Adroit, vigorous, forceful, naturally resentful of the prosecution and of the charges made and testified to against him, he personally participated in the trial, counseling and conferring in its course, and actively cross-examining many of the witnesses, particularly those who most straightly and vilely accused him. In addition, as a witness in his own behalf, he testified at length. In view of the nature of the vigorous personal defense he made and of the clash of personalities which was thus made inevitable, it is plain that there was ample ground for anticipating, as well as basis for excusing, some by-play. As was to be expected, therefore, there were plenty of exchanges between Pine and Paisley, but it was give and take throughout, and at no time, in our opinion, did either Pine or Paisley transcend permissible limits. Instead, therefore, of the record showing gross and prejudicial misconduct and unfairness on the part of the prosecution, it is, we think, under the circumstances remarkably free from anything of the kind.

When we turn to the refused requests to charge, we must keep in mind that they are not to be considered abstractly or in vacuo as though the court had given no charge at all. They must be considered in their relation to the trial as a whole and especially in the light of the very full and fair general charge given, to which no exception was taken. In short, the refusal as to any of them may be regarded as reversible error if, but only if, (1) it is in itself a correct charge, (2) it is not substantially covered in the main charge, and (3) it is on such a vital point in the case that the failure to give it deprived defendant of a defense or seriously impaired its effective presentation. So considering them, it is quite clear that the refusal to give defendant's requested charge No. 6, charging generally that accomplice testimony should be received with extreme caution, did not constitute reversible error for (1) it was couched in such general terms as to be misleading, and (2) the judge charged fully on the weighing of evidence, and it was a matter within his discretion whether a charge as to accomplice testimony should be given.² Neither was it reversible error to refuse to give charge No. 10.³ Its effect was to charge as though the offense was the substantive one of actually transporting particular women and girls rather than the offense of conspiring to transport, and it was, therefore, confusing and incorrect. The indictment charged Pine not with transporting particular women and girls but with having entered into a conspiracy to transport, and it was not necessary to convict him that he should know or intend that any particular woman or girl was to be transported. It was sufficient if he was in a general conspiracy or agreement that such transportation would be accomplished, even though there was in fact no transportation. Besides, the refusal of the charge did not deprive Pine of his defense or seriously impair its presentation, for the district judge, in his full charge on conspiracy, correctly charged the offense and specifically required of the jury before they could convict that they find beyond a reasonable doubt, that is, that they have a full, firm and abiding conviction, that the defendant had entered into the agreement and understanding the indictment charged. Over and over he reiterated that knowledge of and participation in the unlawful agreement was of the essence of the offense. At one place he charged, "Mere knowledge alone does not make one a member of a conspiracy, either knowledge of the existence of the conspiracy or knowledge of the commission of overt acts or even participation in an overt act, but there must be membership in the unlawful combination by aid, assistance or tacit understanding." Again he charged, "It is necessary for the government to prove that there was an unlawful conspiracy formed as charged in the indictment, and that Pine was a member of said conspiracy". And further, and greatly important to the defendant, he charged the jury, "You should acquit the defendant if you do not find him guilty of the charge made in the indictment, even if you may...