United States v. Bazzell, 10280

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtMAJOR, , and KERNER and DUFFY, Circuit
Citation187 F.2d 878
Docket Number10285.,No. 10280,10280
Decision Date25 April 1951


Joseph H. Goldenhersh, East St. Louis, Ill., William M. Giffin, A. D. Van Meter III, Robert B. Oxtoby and G. William Horsley, Springfield, Ill., for appellants.

Howard L. Doyle, U. S. Atty., Marks Alexander and George R. Kennedy, Asst. U. S. Attys., Springfield, Ill., for appellee.

Before MAJOR, Chief Judge, and KERNER and DUFFY, Circuit Judges.

KERNER, Circuit Judge.

These are appeals from a judgment of conviction and sentence after a jury had found defendants guilty under an indictment containing three counts. The first count charged defendants, in violation of the Federal Kidnaping Act, 18 U.S.C.A. § 1201, with kidnapping one Mildred Tedrick, transporting her in interstate commerce and holding her for the purpose of placing her in a house of prostitution, and that she was harmed after having been kidnaped. The second count charged the same offense, but omitted the allegation that Mildred was not released unharmed. The third count charged that defendants, in violation of § 371 of the Criminal Code, 18 U.S.C.A. § 371, conspired with each other to commit the crime charged in counts one and two. The overt acts alleged were that defendants traveled to Kentucky and back to Illinois; that they entered a house of prostitution in Bowling Green, Kentucky; that Bazzell struck the girl in Bowling Green, Kentucky, as well as in East St. Louis, Illinois; and that he brought the girl to a house of prostitution in Madison, Illinois. Bazzell, appellant in No. 10280, was convicted on counts one and three, and Lasby and Ryan, appellants in No. 10285, were found guilty only on the third count of the indictment. In this court the appeals were consolidated.

Bazzell's first contention is that there was no kidnaping under the statute, that is to say, the evidence does not sustain the verdict. As to this contention, it is well to remember that under the long and well established law we may consider only that evidence favorable to the plaintiff. We are not permitted to weigh conflicting evidence, but must test the sufficiency of the proof upon the basis of what the jury had the right to believe, and not upon what defendant claims the jury should have believed.

There was evidence that shortly after Christmas, 1947, the girl went to work as a waitress in a tavern operated by Bazzell, and continued to work, intermittently, until March, 1948, at which time he took her to a house of prostitution near Collinsville, Illinois, and told her she must work as a prostitute. The girl was scared of him, and from that time until July, 1949, she worked as a prostitute in various houses of ill fame and gave her earnings to Bazzell. About July 6, 1949, Bazzell took the girl to a brothel in Bowling Green, Kentucky, and made arrangements for her to work there as a prostitute. She worked there until December 5, and until shortly before Thanksgiving gave her earnings to Bazzell, but after that date she discontinued the payments. December 5, Bazzell came to the brothel, but the girl had left the house several hours before his arrival. Bazzell, upon learning of her departure, said that when he saw her he would "whip her for slipping away." The girl returned to the brothel on December 22 and remained until January 26, but did not remit any money to Bazzell.

On the evening of January 25, 1950, Bazzell, accompanied by Lasby and Ryan, drove from Illinois to Bowling Green in Bazzell's automobile. The three men entered the house where the girl worked at about 1 o'clock A.M. on January 26. They were admitted by the house manager. Ryan and Lasby each kept his right hand in his coat pocket, and each stationed himself at a door, and Bazzell told them, "if anyone moves, let them have it." Bazzell then seized the girl by the hair, kicked her in the back, struck her on the head and twisted her arm. She repeatedly told Bazzell that she would not go with him, but he forcibly made her accompany him to her room on the second floor of the house where he took all of her money, and obtained her clothes and loaded them into his automobile. Bazzell then collected from the madam in charge of the brothel the money which the girl had earned that day, after which the three men and the girl got into Bazzell's automobile and drove to East St. Louis, Illinois, arriving there about 7 o'clock on the morning of January 26. While en route, Bazzell told the girl that if she had endeavored to escape "she would not have gotten very far, because Bozo Lasby has a German Luger, and it will shoot a good block."

Upon their arrival in East St. Louis, Bazzell registered the girl in a tourist court, transferred her clothes into a cabin, and the three men proceeded to a tavern. About noon, Bazzell sent Ryan to bring the girl to the tavern, and later in the afternoon Bazzell took her back to the tourist court. While there he beat her about the head and ear with a blackjack, striking her a number of times, and stated that he was "going to straighten her out for taking off" and "teach her not to ever take off again." He remained in the cabin with her that night. The next evening, January 27, he took the girl to work at a house of ill fame in Madison, Illinois, several miles from East St. Louis, where she worked that evening until she was taken into custody by agents of the F. B. I. She was examined by a physician and was found to be suffering from numerous contusions and abrasions about the head and shoulders, and the inside of her ear canal was swollen.

The Federal Kidnaping Act punishes anyone who knowingly transports in interstate or foreign commerce any person who has been unlawfully seized, confined, inveigled, decoyed, kidnaped, abducted, or carried away and held for ransom, or reward or otherwise, except, in the case of a minor, by a parent.

Bazzell insists that there is no evidence of any restraint or any use of weapons; that no force was exercised, or if force was used, the girl's actions thereafter were entirely voluntary.

Concededly, before a defendant may be convicted under the statute in question, there must be an unlawful seizure, a holding for a specific purpose, and an interstate transportation of the victim, and where the indictment charges that the victim was harmed, there must be proof that she was not released unharmed.

In Gooch v. United States, 297 U.S. 124, 56 S.Ct. 395, 397, 80 L.Ed. 522, the Court held that the Act broadly prohibited transportation in interstate commerce of persons who were being unlawfully restrained "in order that the captor might secure some benefit to himself." And in Chatwin v. United States, 326 U.S. 455, 460, 66 S.Ct. 233, 90 L.Ed. 198, the Court recognized that the holding or restraint could be achieved by mental as well as by physical means.

In our case, as already noted, there was testimony that the girl was afraid of Bazzell and that she gave him her earnings up to November, 1949. It is undisputed that on January 25, 1950, Bazzell drove to Bowling Green, Kentucky, where he picked up the girl and transported her to Illinois. There was testimony that when she refused to leave Bowling Green, Bazzell struck and kicked her and twisted her arm, and that during this time Lasby and Ryan, strangers to her, were guarding the doors, each with his hand in his pocket, under orders from Bazzell that "if any one moves, let them have it." And there was testimony that after the three men and the girl left the house in Bowling Green, the house manager spoke over the telephone to the girl's mother at Patoka, Illinois, and to the Sheriff of Fayette County, Illinois. As a result of these talks, the manager of the house was interviewed by an agent of the F. B. I., and on January 28 Bazzell was taken into custody on a warrant charging him with kidnaping. In addition, there was testimony that before taking the girl to work again as a prostitute at Madison he struck her with a blackjack and told her he would teach her not to ever take off again. We have examined the original records consisting of 385 pages of typewritten testimony and the circumstantial evidence and the reasonable inferences flowing therefrom. It proved beyond a reasonable doubt that Bazzell unlawfully seized and carried the girl away from Kentucky into Illinois by force and against her will, in the sense that her resistance was overcome by physical force and threats which put her in fear of her life, and that she was carried away for the purpose of placing her in a house of prostitution in order that Bazzell might secure some benefit to himself.

We next consider Bazzell's contention that the evidence fails to show that the offense was committed within the jurisdiction of the court. He says the transportation was from Kentucky into Illinois and to East St. Louis in the Eastern District of Illinois, hence if any offense was committed, it was not committed in the Southern District of Illinois, as laid in the indictment. We think this venue point is without merit.

Jurisdiction depends upon where the crime is committed. As already noted, the indictment alleged several overt acts, one of which was that Bazzell brought the girl to a house of prostitution in Madison, a city in the Southern District of Illinois, and, as we have shown, took her to the house of prostitution in Madison for the purpose of prostitution, where she worked until she was taken into custody. Thus there was direct proof that the crime was committed in the Southern District of Illinois. See United States v. Downing, 2 Cir., 51 F.2d 1030.

Finally, Bazzell contends that the court erred in admitting a blackjack in evidence. It was found at Bazzell's apartment when he was arrested. The argument is that there was no evidence that the blackjack had any connection with the seizure or detention. As we have...

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