United States v. Mellor

• Decision Date: 10 April 1946
• Docket Number: No. 547 Criminal.,547 Criminal.
• Citation: 71 F. Supp. 53
• Parties: UNITED STATES v. MELLOR et al.
• Court: U.S. District Court — District of Nebraska

71 F. Supp. 53

UNITED STATES v. MELLOR et al.

No. 547 Criminal.

District Court, D. Nebraska, Norfolk Division.

April 10, 1946.

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A. Z. Donato, Asst. U. S. Atty., of Omaha, Neb., for plaintiff.

Eugene D. O'Sullivan and Hugh J. Boyle, both of Omaha, Neb., for defendants.

DELEHANT, District Judge.

The defendants were indicted jointly for the commission of the offense defined in the first clause of Title 18 U.S.C.A. § 398. The indictment charged in a single count that they "did unlawfully, wilfully, knowingly and feloniously transport and cause to be transported, and aid and assist in obtaining transportation for, and in transporting, in interstate commerce from the ranch home of the defendant Ralph B. Mellor in Holt County, * * * Nebraska * * * to the city of Moran, in the state of Wyoming, two certain girls," (whose names are fully set out in the indictment) "for the purpose of prostitution and debauchery and for other immoral purposes, and with the intent and purpose on the part of them, the said Ralph B. Mellor and Charles J. Ford, and each of them, to induce, entice and compel said girls, and each of them, to give themselves up to debauchery and to engage in other immoral practices."

The defendants acting jointly and severally, first, filed (a) a motion for bill of particulars; (b) a motion to quash the indictment; and (c) a special demurrer to the indictment. These pleadings were submitted to the court by arguments of counsel and, upon due consideration, were severally denied and overruled. The defendants were then arraigned and severally pleaded "not guilty." Thereafter, trial of both defendants was had to a jury, at the close of which a verdict of guilty was returned against each defendant. In a single pleading, they have moved severally for a new trial. Counsel have submitted exhaustive written briefs directed to the motion; and this memorandum is designed as a partial reflection of the court's conclusions upon the issues. It is recognized that oral argument may yet be tendered upon the motion; following which further observations upon the case will undoubtedly be orally made by the court, and the ruling upon the motion will be announced. It will be the present purpose of the court to advert in order to those issues which the defendants have supported by authority and typewritten argument; and thereafter very briefly to comment upon certain others of the many issues tendered by the motion but not argued. The court quite clearly understands that none of them are formally abandoned.

Duplicity is charged against the indictment in certain particularized respects. And it is claimed, first, because two defendants are joined in a single count charging, not conspiracy, but rather the commission of a substantive offense. The court is unable to perceive any virtue in the claim. With becoming candor, counsel for the defendants acknowledge in their brief their own failure to discover any authorities in support of their position. Recognizing that Lucas v. United States 70 App. D.C. 92, 104 F.2d 225, and United States v. Hunt, 7 Cir., 120 F.2d 592, are generally considered to support the course reflected in the present indictment, they endeavor to distinguish those cases by the circumstance that the question arose in each of them upon rejected demands for severance, while here it was presented by motion to quash and special demurrer, as well as upon appropriate attack on the indictment at the trial. But the cited cases do recognize, and rest upon, the propriety of indicting two or more defendants in a single count for the commission of a substantive offense in which both or all of them participate. And that propriety is equally fatal to an attack upon the prosecution thus framed, whether it be made by demurrer or motion to quash on the one hand, or by motion for severance on the other. United States v. Hunt, supra, seems to be directly instructive also in its factual setting. See also United States v. Mullen, D.C., 7 F.2d 244; and United States v. Glass, D. C.Ky., 30 F.Supp. 397. The propriety of indicting jointly, not for conspiracy but for a substantive crime, two or more persons who, together, commit a single offense and participate jointly in the several essential steps leading to its accomplishment can not seriously be challenged. See cases already cited. It is to be acknowledged that in some instances, upon motion, severance for trial of the defendants thus charged may be appropriate and even mandatory. Here no request for such action was made. Nor, the evidence being fairly appraised, would a demand for severance have been well taken.

But it is further argued that the indictment duplicitously charges more than one offense in a single count. The point is not well taken, whether it be predicated upon the contemporaneous transportation of more than one girl, or upon the alleged concurrence of more than one of the statutorily identified illicit purposes of the single transportation. The gist of the offense charged here is the act of unlawful transportation; and what is alleged is a single act of transportation. The act is not necessarily to be dissected into several crimes solely because it resulted in the illicit movement in interstate commerce of more than one girl. The precise question has been resolved unfavorably to the defendants in Robinson v. United States 10 Cir., 143 F.2d 276, 278, in which it is competently discussed. Dunlop v. United States, 165 U.S. 486, 17 S.Ct. 375, 41 L.Ed. 799; Clark v. United States, 8 Cir., 211 F. 916; United States v. Scott, C.C.Ky., 74 F. 213; Serentino v. United States, 1 Cir., 36 F.2d 871; United States v. Cason, D.C.La., 39 F.Supp. 730; United States v. Westman, D.C.Or., 182 F. 1017.

The court has not overlooked or disregarded those cases which hold that a single act of transportation involving more than one woman or girl may constitute as many offenses as the number of persons transported, or an even larger number, in the event that more than one offense arises out of the transportation of one or more of the transportees. Nor is the circumstance neglected that some of them, proceeding beyond their necessary scope, have asserted that such transportation must result in a multiplicity of offenses, of which an example is United States v. St. Clair, D.C.Va., 62 F. Supp. 795. In that proceeding to correct a sentence to consecutive terms of penal servitude upon a plea of guilty to separate counts arising out of a series of several transportations, some of which involved two or more women, the only question necessarily involved was whether a single illicit interstate carriage of more than one woman might give rise to an offense for the transportation of each of them. The court correctly replied in the affirmative, but quite gratuitously argued that the transportation could not be narrowed to a single offense. Gillenwaters v. Biddle, 8 Cir., 18 F.2d 206, 208, cited upon this point by the defendants, held only that the concurrent transportation in interstate commerce for specified immoral purposes of four women "doesnot necessarily imply a single offense" but may involve four separate offenses. The writer of the opinion properly argued that the purposes of transporting the four several women might very well differ as to each of them.

The test of the unity or multiplicity of offending by what ostensibly is a single operation is whether the same evidence is required to sustain the charge as to the two transported women. If it is, a single offense may be charged and proved. If not, multiple offenses have occurred. The leading case, though in another context, is Ebeling v. Morgan, 237 U.S. 625, 35 S.Ct. 710, 59 L.Ed. 1151, in which the Supreme Court found separate offenses to have been committed by a defendant in the cutting of several mail bags which he had stolen at a single time for the purpose of abstracting and keeping their contents. It was reasoned that despite the unity of purpose and of action in the primary taking, a separate and distinct act, in itself statutorily denounced as criminal, was involved in the cutting of each sack; and that each cutting was an offense complete in itself. Emphasis was also placed upon the unquestioned legal positions that proof of the cutting of one sack would not establish the cutting of the others or of any of them; and that conviction or acquittal of the offense of cutting one of them would be no bar to prosecution for the cutting of others of the sacks.

In the instant prosecution, the indictment, recognizing that the transportation of the two girls for a single illicit purpose aimed at both of them might involve a single offense, charged it in that fashion. It was clearly impregnable to motion to quash or demurrer. And upon the trial the evidence warranted the government's course, for the same evidence pursued the defendants throughout the trial in establishing both the transportation and its purpose as to both girls. From the onset of the actual transportation to its end, the evidence does not separate the girls from each other, and, only during brief and immaterial intervals of rest, removes them from the personal company of both defendants who also remained unseparated. And both in the interval between the defendants' accosting of the two girls on the highway and their departure from the Mellor ranch home, and in the period between the arrival of the four people at Moran, Wyoming, and the end of their contact, with only rare and insignificant intervals, the two girls remained together and the two men remained in each other's company, and that, both while all four of them were together, and while the girls were separated from the men. In saying which the court does not overlook the fact that during the two days before the departure from the Mellor ranch the defendants were not always together but with each other's understanding were engaged, sometimes together, sometimes...