Twitchell v. United States

• Decision Date: 08 March 1963
• Docket Number: No. 17742.,17742.
• Citation: 313 F.2d 425
• Parties: Robert TWITCHELL, Jayne Ackerman Rogers, et al., Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

313 F.2d 425 (1963)

Robert TWITCHELL, Jayne Ackerman Rogers, et al., Appellants, v. UNITED STATES of America, Appellee.

No. 17742.

United States Court of Appeals Ninth Circuit.

February 4, 1963.

Rehearing Denied March 8, 1963.

Joseph S. Kane, Seattle, Wash., for appellants Jayne Ackerman Rogers and Harrison Rogers.

Clay Nixon, Seattle, Wash., for appellant Twitchell.

Betty Taylor Howard, Seattle, Wash., for appellant Conklin.

Brockman Adams, U. S. Atty., and Thomas H. S. Brucker, Asst. U. S. Atty., Seattle, Wash., for the United States.

Before HAMLEY and DUNIWAY, Circuit Judges, and TAYLOR, District Judge.

DUNIWAY, Circuit Judge.

In this criminal case, the appeals are by Robert Twitchell, Margaret Elinor Conklin, Jayne Ackerman Rogers (Mrs. Rogers), and Harrison Rogers (Mr. Rogers). They were tried under a nine count indictment, in which Max Kosher and Dale Ratcliff were also named as defendants. Kosher and Ratcliff were not tried.

Count I charged all of the named defendants, together with Gloria Ashen, Gustave Meyers, Calvin Kellar, Norman Winslow, Vivian Hendricks, and others unknown, with a conspiracy (18 U.S.C. § 371) to violate sections 2421,¹ and 2422² (the Mann Act) as principals (see section 2(a) and (b))³ of Title 18. The gist of the charge is a conspiracy to violate the Mann Act by: a. transporting or causing to be transported a woman or women in interstate commerce for immoral purposes (§ 2421, first paragraph, and § 2(b)), b. procuring and obtaining and causing to be procured and obtained a ticket or tickets to be used by a woman or women in interstate commerce for immoral purposes (§ 2421, second paragraph, and § 2(b)), and c. persuading, etc., a woman or women to travel in interstate commerce and causing her or them to use a common carrier for immoral purposes (§ 2422). All four of the appealing defendants were found guilty under this count.

Counts II and III charge Mrs. Rogers with two substantive offenses, transporting and aiding, abetting, counselling or inducing the transporting of two different women (Gowans and Addington) from Portland, Oregon to Snohomish County, Washington, for immoral purposes (§ 2421, first paragraph, and § 2(a)). She was found guilty on both counts.

Count IV charged Mrs. Rogers and Dale Ratcliff with a similar offense, involving one Parker. Mrs. Rogers was found guilty on this count.

Count V charged Mr. and Mrs. Rogers and Conklin with a similar offense, involving one Balduyck. The count was dismissed as to the Rogers, and Conklin was found not guilty. Count VI, a similar count against the Rogers, involving one Ryan, was also dismissed.

Count VII charged the two Rogers with transporting Ryan from Portland to Snohomish County (§ 2421, first paragraph). They were both found guilty.

Count VIII charges Mrs. Rogers with an offense similar to that charged in Counts II and III, but involving one Wheeler. Mrs. Rogers was found guilty.

Count IX charges the Rogers and Conklin with transporting or causing to be transported or aiding, etc. the transportation of one Wells from Portland to Snohomish County. (§ 2421, first paragraph and § 2(a) and (b)). All three were found guilty.

Thus all four appellants were convicted under the conspiracy count. Twitchell was convicted solely under that count. Mrs. Rogers was found guilty under six counts charging substantive offenses. (II, III, IV, VII, VIII and IX), Mr. Rogers under two such counts (VII and IX), and Conklin under one such count (IX).

Twitchell was sentenced to three years, Conklin to one year and one day under each of the two counts, Mrs. Rogers to two years under each of the seven counts, and Mr. Rogers to one year and one day under each of the three counts. In the case of each defendant, sentence under the substantive count or counts was made concurrent with the sentence under Count I.

Since Twitchell's appeal relates solely to Count I, the conspiracy charge, we first consider that appeal. His principal contention, properly preserved at all stages of the trial, is that the evidence does not sustain the conviction. We agree.

Neither prostitution nor maintaining or conspiring to maintain a house of prostitution is a federal offense. It is not the business of federal prosecutors to prosecute for state offenses, or of federal courts to entertain such prosecutions. And we think that federal courts must be on guard against attempts to convert what are essentially offenses against state laws into federal crimes via the conspiracy route. (See the opinion of Harlan, J., concurring in part and dissenting in part, in Ingram v. United States, 1959, 360 U.S. 672, 683, 79 S.Ct. 1314, 3 L.Ed.2d 1503; cf. Jackson, J., concurring, in Krulewitch v. United States, 1949, 336 U.S. 440, 455-458, 69 S.Ct. 716, 93 L.Ed. 790.) That appears to us to be what happened here.

There is a mass of evidence from which a jury might find that Twitchell, who was sheriff of Snohomish County, conspired with various madams (Ashen, Rogers, Conklin) either separately or together, to operate one or more houses of prostitution in Snohomish County, Washington, in or near the City of Everett. According to this evidence, Twitchell's part was, in return for payoffs, to tolerate the operations and assure them a monopoly. But such a conspiracy is not a federal offense. The federal offense is, speaking generally, interstate transportation or inducement of transportation of women for purposes of prostitution, and the question we must decide is whether the evidence shows, in relation to Twitchell, participation in a conspiracy to commit such an offense. Since these are necessary elements in the substantive offense, the government must establish, if it charges a conspiracy to commit the offense, that these are objectives of the conspiracy, and that the person charged as a conspirator can be fairly said to be a party to the objectives.

We consider first, what the test is by which we should measure the evidence. We have in mind the established rules that it is not necessary to show that the substantive offense was actually committed (Goldman v. United States, 1918, 245 U.S. 474, 477, 38 S.Ct. 166, 62 L.Ed. 410; Marino v. United States, 9 Cir., 1937, 91 F.2d 691, 696, 113 A.L.R. 975), that once a conspiracy has been established, "slight evidence may be sufficient to connect a defendant with it" (Nye & Nissen v. United States, 9 Cir., 1948, 168 F.2d 846, 852, aff'd, 1949, 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919), and that a conspirator need not be shown to know all of the details of, or parties to, the conspiracy (Marino v. United States, supra, at 696). It is still true that the conspirator must know the purpose of the conspiracy. (Ibid.)

Cases involving conspiracies to commit other federal offenses are not, in our judgment, particularly helpful. This is because of the peculiar nature of offenses under the Mann Act. It is not a violation of that Act to employ, in a house of prostitution, women who have come from other states of their own accord, even if their purpose in coming was to indulge in prostitution. (See McGuire v. United States, 8 Cir., 1945, 152 F.2d 577, 579-580) Thus proof, of which there is a circumstantial modicum in this case, that Twitchell knew that some of the girls in the houses that he was protecting came from out of state, is not enough.

In this respect, the case differs from many federal conspiracy cases, in which the federal element is almost necessarily involved, such as mail fraud cases, (see Pereira v. United States, 1954, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435) or in which the principal object is to commit a federal offense, such as a conspiracy to defraud the United States (see Nye & Nissen v. United States, supra.) Here, the federal element is tangential to, and not necessarily involved in, the principal object of the conspiracy.

We think that, in a case of this kind, the evidence must show in relation to Twitchell that either:

1. he directly agreed to the illegal interstate transportation, or directly agreed to a scheme which could not be consummated without illegal interstate transportation, or directly agreed to a scheme in which it was known that the likelihood of illegal interstate transportation was great (it being understood that such agreement need not be overt, and may be inferred from circumstantial evidence; and that directness refers not to face-to-face dealings, but to the extent of his knowledge of the purpose and scope of the conspiracy); or

2. he evidenced his indirect agreement by substantial participation in the scheme with actual knowledge of the proposed, or completed, illegal interstate transportation. (The degree of knowledge required of the interstate aspect thus increases as the defendant's connection with the core agreement becomes more tenuous.) (See our decisions in Lee v. United States, 9 Cir., 1939, 106 F.2d 906, and Ege v. United States, 9 Cir., 1957, 242 F.2d 879; and also Harms v. United States, 4 Cir., 1959, 272 F.2d 478, and United States v. Crimmins, 2 Cir., 1941, 123 F.2d 271.)

Applying the foregoing test, we conclude that the evidence against Twitchell is insufficient, although viewed, as it must be, most favorably to the government. (Hansberry v. United States, 9 Cir., 1961, 295 F.2d 800). The government points first to the evidence heretofore mentioned showing a conspiracy involving Twitchell in payoffs for protection of the operations of the various madams. It then points to evidence showing that Twitchell visited at least one of the madams' operations occasionally, that his "bag man," Meyers, and his "contact man," Kosher, went there more often, that one of these two had been told that at least one girl had been brought up from Portland, and that Mrs. Rogers had brought her. It also points to evidence that several prostitutes working in the houses involved came from out of state. We are of the opinion, as we were in Ege, supra, that this evidence is not sufficient, however great...