U.S. v. Mitchell

• Decision Date: 10 December 1985
• Docket Number: No. 85-1349,85-1349
• Citation: 778 F.2d 1271
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Erick MITCHELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1271

778 F.2d 1271

UNITED STATES of America, Plaintiff-Appellee, v. Erick MITCHELL, Defendant-Appellant.

No. 85-1349.

United States Court of Appeals Seventh Circuit.

Argued Sept. 27, 1985.

Decided Dec. 10, 1985.

William D. Stiehl, Jr., Stiehl & Stiehl, Belleville, Ill., for defendant-appellant.

Bruce E. Reppert, Asst. U.S. Atty., Frederick J. Hess, U.S. Atty., East St. Louis, Ill., for plaintiff-appellee.

Before CUMMINGS, Chief Judge, ESCHBACH, Circuit Judge, and SWYGERT, Senior Circuit Judge.

CUMMINGS, Chief Judge.

Defendant Erick Mitchell appeals his conviction for kidnapping, violating the Mann Act, and conspiracy. For the reasons set out below, we affirm his conviction.

I

The incident in question occurred in the early morning hours of July 6, 1983. According to Cheryl Chambers, she and her friend Trina Dively had gone to a restaurant in St. Louis at 10:30 PM the evening of July 5, 1983. They met several other friends at the restaurant, and they talked, drank, and danced until approximately 2:30 AM. Chambers and Dively, along with another friend, Jim Crowder, subsequently left the restaurant and headed towards their car. Before they could reach Chambers' car, however, a car with four young adult men pulled up, and one of the four men, brandishing a gun, forced Chambers into their car. The four men took Chambers across a bridge between St. Louis, Missouri, and East St. Louis, Illinois. While en route, the assailants physically struck Chambers, threatened her life, told her she would be raped by all four of them, and partially pulled down her pants. They stopped near some railroad tracks in East St. Louis, at which time the assailants pulled Chambers out of the car and removed the rest of her clothes. Defendant pulled his pants off and tried to pull Chambers' legs apart, while another one of the assailants pulled Chambers' ears to force her head towards his midsection. Defendant denied all of this, and testified that Chambers voluntarily entered the car, requested the driver to pull over, exited the car, and asked for payment before she would have sex with the four men.

At this point, Arthur Herwick, a railroad policeman, stumbled onto the group. The assailants fled in their car. Herwick gave Chambers his coat, since she was naked at the time, and radioed a description of the car. Acting on this information as well as information provided by Crowder, who had telephoned the police immediately after Chambers had been abducted, the police were able to apprehend the assailants as they crossed the bridge back into St. Louis. Chambers was then brought to the scene to identify the four men as her assailants, which she did. Defendant and the other three assailants were arrested and charged with attempted forcible rape, attempted forcible sodomy, and kidnapping under Missouri law. On the same date, a complaint was filed in the United States District Court for the Southern District of Illinois by the Federal Bureau of Investigation charging the four assailants with kidnapping. On July 29, 1983, the United States Attorney's Office moved to dismiss the federal charges and defer to the state prosecution. An order was entered on August 1, 1983, dismissing those charges.

On June 22, 1984, all of the assailants were acquitted in a joint trial in state court in Missouri. Significantly, defendant Mitchell's confession was not received in evidence. ¹

On August 31, 1984, all of the assailants were indicted by a federal grand jury for the Southern District of Illinois and charged with kidnapping, violation of the Mann Act, and conspiracy. Defendant Mitchell was indicted separately. The indictments followed the receipt of a letter from the Assistant Attorney General of the Criminal Division of the United States Justice Department approving the successive federal prosecution, pursuant to the Department's "Petite policy." ²

Defendant moved to dismiss the indictment, in part because he claimed that this was a selective and discriminatory prosecution based on race. In connection with this motion, defendant filed a motion to compel the discovery of various internal prosecution documents. The district court denied both motions.

Defendant was tried by a jury and found guilty of all three counts on October 25, 1984, after a four-day trial. Defendant's confession, which was not introduced in his state trial (n. 1 supra ), was introduced in this federal trial. He was sentenced to fifty years for the kidnapping charge. He also received five-year terms on the Mann Act and conspiracy charges, to run concurrently with each other and concurrently with the kidnapping sentence. ³ On appeal, defendant raises various issues concerning the scope of the Mann Act, double jeopardy, selective prosecution, and his sentence.

II

In pertinent part the Mann Act provides:

Sec. 2421. Transportation generally

Whoever knowingly transports in interstate or foreign commerce, or in the District of Columbia or in any Territory or Possession of the United States, any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose, or with the intent and purpose to induce, entice, or compel such woman or girl to become a prostitute or to give herself up to debauchery, or to engage in any other immoral practice; or

Whoever knowingly procures or obtains any ticket or tickets, or any form of transportation or evidence of the right thereto, to be used by any woman or girl in interstate or foreign commerce, or in the District of Columbia or any Territory or Possession of the United States, in going to any place for the purpose of prostitution or debauchery, or for any other immoral purpose, or with the intent or purpose on the part of such person to induce, entice, or compel her to give herself up to the practice of prostitution, or to give herself up to debauchery, or any other immoral practice, whereby any such woman or girl shall be transported in interstate or foreign commerce, or in the District of Columbia or any Territory or Possession of the United States--

Shall be fined not more than $5,000 or imprisoned not more than five years, or both. Sec. 2422. Coercion or enticement of female

Whoever knowingly persuades, induces, entices, or coerces any woman or girl to go from one place to another in interstate or foreign commerce, or in the District of Columbia or in any Territory or Possession of the United States, for the purpose of prostitution or debauchery, or for any other immoral purpose, or with the intent and purpose on the part of such person that such woman or girl shall engage in the practice of prostitution or debauchery, or any other immoral practice, whether with or without her consent, and thereby knowingly causes such woman or girl to go and to be carried or transported as a passenger upon the line or route of any common carrier or carriers in interstate or foreign commerce, or in the District of Columbia or in any Territory or Possession of the United States, shall be fined not more than $5,000 or imprisoned not more than five years, or both.

18 U.S.C. Secs. 2421, 2422 (emphasis supplied).

Defendant contends that the interstate transportation of a woman for the purpose of rape or sodomy is not an "immoral purpose" proscribed by the Mann Act on the ground that the Mann Act proscribes only those immoral purposes which are habitual or impose an immoral status of some duration on a woman, whereas a rape is a one-time event which does not alter a woman's moral status. However, the courts have consistently rejected such a crabbed interpretation of the phrase "immoral purpose." The Supreme Court has noted that the phrase "immoral purpose" is not limited to those activities that give rise to commercial gain. Caminetti v. United States, 242 U.S. 470, 486, 37 S.Ct. 192, 194, 61 L.Ed. 442. Several courts have specifically held that rape is an immoral purpose within the purview of the Mann Act and in each case affirmed the conviction of a defendant who transported a woman across state lines for the purpose of raping her. Devault v. United States, 338 F.2d 179 (10th Cir.1964); Reamer v. United States, 318 F.2d 43 (8th Cir.1963), certiorari denied, 375 U.S. 869, 84 S.Ct. 129, 11 L.Ed.2d 95; Brown v. United States, 237 F.2d 281 (8th Cir.1956). Moreover, this issue is so well established that in two recent cases, courts of appeals affirmed the Mann Act conviction of a defendant who transported a woman across state lines for the purpose of raping her without any discussion whatsoever of whether the Mann Act proscribed such conduct. United States v. Hastings, 739 F.2d 1269 (7th Cir.1984), certiorari denied, --- U.S. ----, 105 S.Ct. 1199, 84 L.Ed.2d 343; United States v. Link, 728 F.2d 1170 (8th Cir.1984). Significantly, in two of the cited cases the defendant picked up the woman in St. Louis, Missouri, and then crossed the Mississippi River and raped her in Illinois, which precisely matches the geographical facts in the instant case. Link, Brown. In a third case, the defendants picked up several women in East St. Louis, Illinois, and then drove to St. Louis, Missouri, where they repeatedly raped and sodomized the women. Hastings.

Defendant cites only one case, United States v. McClung, 187 F.Supp. 254 (E.D.La.1960), in an attempt to support his proposition. In McClung, the defendant was indicted for transporting a woman across state lines for the purpose of engaging in sexual intercourse with her. The court held that the Mann Act did not proscribe a single act of consensual sexual intercourse, in part reasoning that the phrase "immoral purpose" should be restricted to "a limited category, encompassing only the more notorious or vicious sexual immoralities." McClung, 187 F.Supp. at 257. While a single act of consensual sexual intercourse may not be in this limited category, rape surely is, and hence McClung does not conflict with our decision today. Moreover, no other courts to our knowledge have relied on...