U.S. v. Prince, 74-3463

• Decision Date: 03 July 1975
• Docket Number: No. 74-3463,74-3463
• Citation: 515 F.2d 564
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Isobel PRINCE, Judy Craft, a/k/a Sandy Woods, Robert Samuel Young, a/k/a Robert Jensen, Melvina Young, a/k/a Tammy Young, Amos Lane Bridges, a/k/a Sonny Bridges, Kathleen Maude Muckenstrum, a/k/a Kim Baker, Liz Wilson, and Colleen Burns, a/k/a Rebecca Williams, Becky, Mitzie, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 564

515 F.2d 564

UNITED STATES of America, Plaintiff-Appellee, v. Isobel PRINCE, Judy Craft, a/k/a Sandy Woods, Robert Samuel Young, a/k/a Robert Jensen, Melvina Young, a/k/a Tammy Young, Amos Lane Bridges, a/k/a Sonny Bridges, Kathleen Maude Muckenstrum, a/k/a Kim Baker, Liz Wilson, and Colleen Burns, a/k/a Rebecca Williams, Becky, Mitzie, Defendants-Appellants.

No. 74-3463.

United States Court of Appeals Fifth Circuit.

July 3, 1975.

Thomas A. Livingston, Pittsburgh, Pa., for Prince.

Norman S. London, L. J. Fleming, St. Louis, Mo., for Craft, Young, Young, Bridges, Muckenstrum & Burns.

E. David Rosen, Miami, Fla., for defendants-appellants.

Robert W. Rust, U. S. Atty., Donald L. Ferguson, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Appeals from the United States District Court, Southern District of Florida.

Before BELL, DYER and SIMPSON, Circuit Judges.

BELL, Circuit Judge:

This is an appeal by defendants Robert Young, Amos Lane Bridges, Melvina Young, Kathleen Maude Muckenstrum, Judy Craft, Colleen Burns, and Isobel Prince from convictions on one count of conspiracy to engage in interstate prostitution activities in violation of Title 18, U.S.C.A. § 1952, and by defendants Robert Young, Amos Lane Bridges, and Melvina Young from convictions on one count of inducing a woman to engage in interstate prostitution activities in violation of Title 18, U.S.C.A. § 2422. In addition, Robert Young, Bridges, and Muckenstrum appeal from convictions on one count of engaging in interstate prostitution activities in violation of Title 18, U.S.C.A. § 1952. Defendants assert numerous errors in the proceedings of the district court; some assignments are assigned collectively, some individually. We find no error in those collective assignments or in Muckenstrum's claim of double jeopardy. We reverse as to appellant Prince.

Appellants first complain that a mistrial should have been declared due to certain remarks made by government counsel. During the opening statement, Counsel stated:

. . . you will hear Sally Burns testify this morning. She will be our first witness. She is going to tell you the truth. She is going to tell you how it all happened . . .

An objection was made to these remarks and it was moved that a mistrial be declared. The motion was denied and the jury was instructed to disregard the comments of the prosecutor.

This court has cautioned that it is "dangerous business" for a prosecutor to state to the jury that the United States government vouches for the honesty or veracity of its witnesses. Gradsky v. United States, 5 Cir., 1967, 373 F.2d 706, 710; McMillian v. United States, 5 Cir., 1966, 363 F.2d 165. The test as to whether the prosecutor has expressed an improper opinion is "whether the prosecutor's expression might reasonably lead the jury to believe that there is other evidence, unknown or unavailable to the jury, on which the prosecutor" relied. 363 F.2d 169 (Emphasis supplied). The remarks in the present case do not create such an impression. The cautionary instruction given by the court was sufficient to avoid error in the failure to grant a mistrial.

Appellants next attack the statute under which they were prosecuted. They argue that to be in violation of 18 U.S.C.A. § 1952 they must be found to be in violation of 61-8-5(b), West Virginia Code. That statute prohibits "prostitution . . . or procur(ing) another to commit an act of prostitution." It is submitted that because the term "prostitution" is not defined within the statute, that it is unconstitutionally void.

This court has recently held, however, that in § 1952 cases state law "merely serves a definitional purpose." United States v. Conway, 5 Cir., 1975, 507 F.2d 1047, 1051. There is no need to prove a violation of the state law as an essential element of the federal crime and therefore the failure to define a generic term according to state law is not error. Id. In Conway, we looked to United States v. Nardello, 1969, 393 U.S. 286, 89 S.Ct. 534, 21 L.Ed.2d 487, where the Supreme Court held that prosecutions under § 1952 were not restricted to state labels, but that it is sufficient for the acts to fall within the "generic term" charged. We need not concern ourselves, then, with the lack of a definition of "prostitution" within the West Virginia statute. That term is also a generic term and the definition of the trial court "sexual intercourse for hire" sufficiently described the offense. It is therefore unnecessary for us to decide the constitutionality vel non of the statute. We further find that there was sufficient evidence presented to sustain a verdict that prostitution was committed.

A third assignment of error looks to the jury instructions on burden of proof and on reasonable doubt. ¹ Appellants point to one sentence of the charge as possibly shifting the burden of proof impermissibly from the government to them. They also object to the overall tone of the charge as being too strict upon the defendants. We also find no error in those contentions. The sentence complained of, that "he (the defendant) may rely upon evidence brought out on examination of witnesses for the government" is somewhat ambiguous but, taken in context, it does not shift the burden of proof to defendants.

We are required to consider a jury instruction in its entirety. Even if a portion of the charge, standing alone, would appear to shift the burden of proof to the defendant, there is no error if the jury is sufficiently informed where the burden lies. Todd v. Stynchcombe, 5 Cir., 1973, 486 F.2d 1030, 1031. In the charge before us, the jury was told repeatedly that the burden rested on the government, and the government alone, and that the burden never shifted throughout the trial. Likewise, we find no error in the instruction on reasonable doubt.

Appellant Muckenstrum individually argues that her prosecution in this case was barred by principles of double jeopardy. She was indicted and convicted in United States v. Muckenstrum, 5 Cir., 1975, 515 F.2d 568, also decided this day. That case also charged a conspiracy to engage in interstate prostitution activities in violation of 18 U.S.C.A. § 1952. Muckenstrum contends that the two conspiracies were really one continuing conspiracy and points to similarity of parties, witnesses, dates and acts for support. The only difference, according to her theory, is the point of travel: South Carolina in one instance, West Virginia in the other. While Muckenstrum and James Reed were common to both cases, ² there were numerous other parties who were associated only with...