U.S. v. Maselli

• Decision Date: 25 May 1976
• Docket Number: No. 75-2106,75-2106
• Citation: 534 F.2d 1197
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ann Marie MASELLI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1197

534 F.2d 1197

UNITED STATES of America, Plaintiff-Appellee, v. Ann Marie MASELLI, Defendant-Appellant.

No. 75-2106.

United States Court of Appeals,

Sixth Circuit.

Argued Feb. 18, 1976.

Decided April 19, 1976.

Rehearing Denied May 25, 1976.

Gerald A. Messerman, Gold, Rotatori, Messerman & Hanna, Cleveland, Ohio (Court-appointed), for defendant-appellant.

Frederick M. Coleman, U. S. Atty., Cleveland, Ohio, Mervyn Hamburg, Appellate Section, Crim. Div., Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Before PHILLIPS, Chief Judge, and WEICK and LIVELY, Circuit Judges.

LIVELY, Circuit Judge.

A grand jury for the Northern District of Ohio returned a 23-count indictment on May 23, 1974 naming eleven defendants. The odd numbered counts 1 through 21 charged various defendants and others not indicted with violations of the Travel Act, 18 U.S.C. § 1952, and the corresponding even numbered counts 2 through 22 charged the same persons with violations of the Mann Act, 18 U.S.C. § 2421. Each of these counts also charged the persons named therein with violation of 18 U.S.C. § 2. Count 23 charged a conspiracy among the defendants named in counts 1-22, certain named but unindicted co-conspirators and other unknown persons to perform the illegal acts charged in the first twenty-two counts.

One defendant died before the trial began, one became ill during the trial and was severed and four pled guilty to one count each and were not tried. The defendant Maselli was found guilty on count 23, the conspiracy charge, and count 13, in which it was charged that she and an unindicted co-accomplice, John Richard Dudley, "caused Janice Phillips to travel in interstate commerce . . . (from Ohio to South Carolina) with the intent to promote, manage, establish, carry on and facilitate the promotion, management, establishment and carrying on of an unlawful activity, said unlawful activity being prostitution in violation of . . . (18 U.S.C. § 2421 and stated laws of South Carolina) and thereafter . . . did perform and cause to be performed acts to promote, manage, establish, carry on and facilitate the promotion, management, establishment and carrying on of said unlawful activity, and did distribute and cause the distribution of the proceeds of said unlawful activity.

"All in violation of Title 18, United States Code, Sections 1952 and 2." Maselli was acquitted of the charge in count 14 of transporting Janice Phillips from Ohio to South Carolina for immoral purposes. She was given consecutive one-year sentences on counts 13 and 23.

On appeal Maselli contends that the indictment was insufficient to charge an offense under 18 U.S.C. § 1952, that the district court erred in stating to counsel that certain portions of the indictment would be stricken and subsequently submitting these charges to the jury, and that the court's instructions to the jury contained errors which prejudiced her. All of these issues were raised in the district court and are properly here for review.

SUFFICIENCY OF THE INDICTMENT

Defendant argues that count 13 only charged her as an aider and abettor, not as a principal, since it stated that she "caused" the Phillips woman to travel to South Carolina instead of charging that defendant traveled interstate herself. It is her contention that a proper reading of the indictment names Dudley as the principal and her as an aider and abettor. She contends the use of the word "caused" indicated to her that she was being charged under 18 U.S.C. § 2(b) rather than § 1952. 18 U.S.C.A. § 2 reads as follows:

§ 2. Principals

(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which if directly performed by

him or another would be an offense against the United States, is punishable as a principal.

Since the indictment did not charge that Maselli "willfully" caused Janice Phillips to travel, it is contended that an essential element was missing and no offense was charged in count 13.

Defendant misconstrues the meaning of 18 U.S.C. § 2. A person charged with causing another to do an act which would be an offense if done by him directly is punishable as a principal under § 2(b). An aider and abettor is punishable in the same manner under § 2(a). The purpose of § 2(b) is to make it unnecessary to include language such as "causes or procures" in many criminal statutes. Revisor's Note to 18 U.S.C. § 2. Thus § 2 deals with two classes of activity which do not involve direct violations of the law, but which contribute to the commission of offenses and are punishable in the same manner as direct violations. The indictment clearly charged Maselli with a violation of 18 U.S.C. § 1952 by causing Janice Phillips to travel rather than by traveling with her. Maselli was charged as a principal, since one who causes another to commit an unlawful act is as guilty of the substantive offense as the one who actually commits the act. See United States v. Harris,523 F.2d 172 (6th Cir. 1975); United States v. Hoffa, 349 F.2d 20, 43 (6th Cir. 1965), affd., 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966); Reamer v. United States, 228 F.2d 906 (6th Cir. 1955). The word "willfully" is not used in § 1952, and it was not necessary to use it in the indictment, since 18 U.S.C. § 2 is embodied in every federal indictment. See United States v. Lester, 363 F.2d 68, 72 (6th Cir. 1966), cert. denied, 385 U.S. 1002, 87 S.Ct. 705, 17 L.Ed.2d 542 (1967); Pigford v. United States, 518 F.2d 831, 835 (4th Cir. 1975).

Even if Maselli was justified in believing that she was being charged only as a "causer" under § 2(b), the omission of the word "willfully" did not render count 13 of the indictment deficient. Though count 13 did not use the word "willfully," it did charge that defendant caused Janice Phillips to travel interstate "with the intent" to promote, etc. the unlawful activity of prostitution and "thereafter . . . did perform . . . acts to promote . . ." the unlawful activity and did distribute its proceeds. In Griffith v. United States, 230 F.2d 607 (6th Cir. 1956), the court held that omission of the word "knowingly" from an indictment for a Mann Act violation was not fatal because the language of the entire indictment "plainly and definitely indicate(s) that the essential ingredient of scienter existed in the mind" of the defendant. If other language in an indictment implicitly requires a particular element of an offense it is not necessary that words be used which explicitly require that element. Walker v. United States, 439 F.2d 1114 (6th Cir. 1971). When count 13 is read in its entirety it is clear that defendant was charged with an intentional violation of the Travel Act. See United States v. Salliey, 360 F.2d 699 (4th Cir. 1966).

One further argument is made in connection with defendant's theory that she was only charged under 18 U.S.C. § 2(b) and not as a principal under § 1952. She contends that it was error to give the jury an instruction on § 2(a) as well as 2(b). Again we must point out that defendant misconstrues the purpose and meaning of 18 U.S.C. § 2. The two subsections are not mutually exclusive forms of charging aiding and abetting. They are, rather, two statements of indirect illegal actions which carry the same consequences for the actor as direct violation of criminal statutes. Since 18 U.S.C. § 2 is included in its entirety in every federal indictment, it is proper, where the evidence justifies it, to instruct on both subsections. There was sufficient evidence from which the jury could have inferred that Maselli and Dudley together caused Janice Phillips to travel in interstate commerce for purposes of prostitution. There was also an abundance of evidence that Maselli aided and abetted Dudley in connection with the prostitution activities of Janice Phillips after causing her to travel from Ohio to South Carolina. The court properly charged the jury on the contents of both 18 U.S.C. § 2(a) and (b). United States v. Salliey, supra, 360 F.2d at 702.

In order to satisfy the requirements of the Fifth and Sixth Amendments, an indictment must set forth the elements of the offense intended to be charged and inform the accused of the nature of the charges against him, and it must be sufficiently detailed to permit the accused to avoid a later prosecution based on the same acts. Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962). We believe the indictment in the present case satisfied these criteria. If defendant desired greater particularity with respect to the charges she would be required to defend at trial, these could have been obtained by means of a motion for a bill of particulars. United States v. Branan, 457 F.2d 1062, 1065 (6th Cir. 1972).

ALLEGED VARIANCE BETWEEN INDICTMENT AND BASIS OF CONVICTION

It is elementary that procedural due process requires that a person be tried and convicted only for the specific offenses with which he is charged. Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948). Any variance between indictment and proof which "destroy(s) the defendant's substantial right to be tried only on charges presented in an indictment" is not harmless error. Stirone v. United States, 361 U.S. 212, 217, 80 S.Ct. 270, 273, 4 L.Ed.2d 252, 257 (1960). The defendant contends that her Fifth and Sixth Amendment rights were violated by the court's instructions permitting a conviction on the basis of proof received at the trial which varied from the charges in the indictment. This argument proceeds from the fact that Maselli was charged only with causing another to travel and not with using interstate facilities, including the mail, to promote and carry on unlawful activity. Use of such facilities to promote or carry on prostitution is also proscribed by § 1952. The jury heard evidence, without objection, that Janice...