United States v. Farber

• Decision Date: 25 September 1964
• Docket Number: No. 15680.,15680.
• Citation: 336 F.2d 586
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bernard J. FARBER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

336 F.2d 586 (1964)

UNITED STATES of America, Plaintiff-Appellee, v. Bernard J. FARBER, Defendant-Appellant.

No. 15680.

United States Court of Appeals Sixth Circuit.

September 25, 1964.

Morton Rabkin (Court Appointed), Cincinnati, Ohio, for appellant.

Milton J. Trumbauer, Detroit, Mich., Lawrence Gubow, U. S. Atty., James Francis Finn, Asst. U. S. Atty., Detroit, Mich., on brief, for appellee.

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

HARRY PHILLIPS, Circuit Judge.

Bernard J. ("Bernie") Farber was convicted of violating the White Slave Traffic Act, 18 U.S.C. § 2421, and sentenced to four years in prison. The jury found him guilty of knowingly procuring transportation for, and knowingly causing to be transported in interstate commerce, from Detroit, Michigan, to Lima, Ohio, a woman for purposes of prostitution. A verdict of not guilty was returned on the second count of the indictment, charging transportation of the same woman from Lima to Detroit.

Two questions are presented on this appeal: (1) The sufficiency of the evidence to sustain the verdict; and (2) Whether the District Court committed prejudicial error in admitting testimony which defendant contends was hearsay, which was later stricken by the trial judge with specific instructions that it be disregarded by the jury.

The Sufficiency of the Evidence

The woman in question testified that in October 1958, as an eighteen-year-old married girl separated from her husband, she came from her home in Flint, Michigan, to Detroit, where she met defendant; that defendant approached her several times concerning engaging in prostitution and, after first rejecting the proposal, she consented to engage in such acts; that for a period of time she lived with defendant, ostensibly as husband and wife; that defendant instructed her as to how to engage in prostitution and how to examine people for venereal disease; that she lived in an apartment, did not pay her own rent, and defendant arranged her prostitution dates for her; and that she collected from her dates and turned over to defendant approximately $1,000 per week from her activities in Detroit, receiving from him money for clothing.

As for her transportation in interstate commerce, this woman testified that in December 1958 defendant arranged for her to go to Lima, Ohio, accompanied her to the bus station, purchased her bus ticket, and told her that she would be met in Lima by a man named "Bob"; that she had never been to Lima before and did not know anybody there; that it was not her "idea to go to Lima," and that she made the trip at the instance of defendant; that she engaged in prostitution in Lima until after the Christmas holidays at a tavern known as Willow Inn, owned by a Mr. and Mrs. Robert Burden, both of whom testified as government witnesses at the trial; that she had no previous acquaintance with the Burdens, and that defendant gave her their names before she left Detroit; that Burden came to the bus station in Lima and drove her in his automobile to the tavern; that she worked as a waitress and carried on prostitution activities in a bedroom or cabin connected with the bar; that defendant came to see her while she was in Lima and she paid over money to him while he was there in an unspecified amount, but less than $1,000 per week; and that on or shortly after New Year's Day she returned to Detroit by bus, on her own volition, paying her own bus fare.

Mr. and Mrs. Burden testified that this woman came to their tavern, that Mr. Burden met her at the bus station, that she paid $5.00 to Mrs. Burden each time she used the bedroom or cabin adjoining the bar, and that defendant visited her while she was in Lima. They denied the woman's testimony that she split her collections with them on a 60-40 basis, she retaining 60 per cent and paying them 40 per cent.

Defendant contends that there was not sufficient evidence for the jury to find that he had the intent to transport this woman to Lima for the purpose of engaging in prostitution. He asserts that he exercised no control over her, as demonstrated by the fact that she left Lima and returned to Detroit on her own volition.

The intent required to be proved under 18 U.S.C. § 2421, "is an intent that the female transported by the accused in interstate commerce shall, after such transportation, engage in the charged immoral conduct." Baker v. United States, 310 F.2d 924, 931 (C.A. 9), cert. denied 372 U.S. 954, 83 S.Ct. 952, 9 L.Ed. 2d 978; Dunn v. United States, 190 F.2d 496, 497 (C.A. 10). It is well recognized that this intent may be shown by circumstantial evidence. Hardie v. United States, 208 F.2d 694 (C.A. 5).

The offense is complete under this statute when it is shown that the defendant knowingly induced the interstate transportation and that the victim crossed a state boundary. "However, this is true only where it is shown also that the defendant had the requisite intent and purpose that the victim `give herself up to the practices of prostitution, or * * * give herself up to debauchery, or any other immoral practice'." United States v. Austrew, 202 F.Supp. 816, 823 (D.Md.), aff'd 317 F.2d 926 (C. A. 4); Guffey v. United States, 310 F.2d 753, 754 (C.A. 10). In Austrew, supra, the court states that intent may be inferred from the character of the environment and the subsequent conduct of the parties: "Typically, then, triers of fact must make reasonable inferences from the conduct of the party in question and the surrounding circumstances." 202 F. Supp. 816, 824. Where the intent of the accused is an ingredient of the crime charged, its existence is a question of fact for the jury. Stewart v. United States, 311 F.2d 109, 112 (C.A. 9); Baker v. United States, supra.

We find Mortensen v. United States, 322 U.S. 369, 64 S.Ct. 1037, 88 L.Ed. 1331, relied upon by defendant, to be readily distinguishable from the instant case on its facts.

The trial judge instructed the jury adequately and at length as to the elements of "intent." We hold that there is...