United States v. Mills, 16673.

• Decision Date: 15 September 1966
• Docket Number: No. 16673.,16673.
• Citation: 366 F.2d 512
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alice MILLS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

366 F.2d 512 (1966)

UNITED STATES of America, Plaintiff-Appellee, v. Alice MILLS, Defendant-Appellant.

No. 16673.

United States Court of Appeals Sixth Circuit.

September 15, 1966.

Don L. Hanni and Jack W. Nybell, Youngstown, Ohio, for appellant, Thomas P. Wellman, Youngstown, Ohio, on the brief.

Nathaniel R. Jones, Asst. U. S. Atty., Cleveland, Ohio, for appellee, Merle M. McCurdy, U. S. Atty., Cleveland, Ohio, on the brief.

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

PHILLIPS, Circuit Judge.

Appellant was convicted on two counts of an indictment charging conspiracy and the substantive offense of transporting a girl in interstate commerce for purposes of prostitution, in violation of 18 U.S.C. § 2421. One co-defendant, Ted Jackson, plead guilty. The jury returned a verdict of not guilty as to the other co-defendant. Appellant was sentenced to imprisonment of five years on the first count and three years on the second count, the sentences to run consecutively.

The girl was a fourteen year old high school freshman, residing in Pennsylvania. She met Jackson, a saxophone player, at a bar, and began to have dates with him. Thereafter the girl traveled by bus from Pennsylvania to Ohio and went to one of two "boarding houses" operated by appellant in Youngstown.

The girl testified that she engaged in prostitution at this "boarding house," paying board to appellant and sharing with appellant an agreed percentage of the money received from her activities.

Jackson purchased the bus ticket for the transportation of the girl from Pennsylvania to Youngstown. There was evidence from which the jury could have concluded that appellant arranged to have $15.00 wired to Jackson which was used for the purchase of this bus ticket, and that appellant had a long distance telephone conversation with Jackson concerning the details of the arrangement prior to the arrival of the girl in Youngstown.

Jackson testified that appellant previously had asked him if he knew any "working girls" and that: "She gave me her telephone number and if I should happen to meet any girls that were working or that were prostitutes, she told me where she could be reached."

On this appeal appellant contends that there was a fatal variance between the indictment and the evidence, and that the district judge committed certain reversible errors in the conduct of the trial. No question is raised as to the sufficiency of the evidence to sustain the verdict of the jury; therefore no further recitation of the evidence is necessary in this opinion.

1) Variance between indictment and evidence

We deal first with the contention that there was a fatal variance between the indictment and the evidence. The indictment charged that the three named defendants:

"wilfully and knowingly did combine, conspire, confederate, and agree to commit an offense against the United States, that is, to knowingly transport and cause to be transported in interstate commerce, from Scranton, Pennsylvania to Youngstown, Ohio, a girl (name of girl omitted here) for the purpose of prostitution, or with the intent and purpose to induce, entice or compel such girl to become a prostitute, in violation of Title 18, Section 2421, United States Code."

The indictment further charged as follows:

"At the times hereinafter mentioned, the defendants committed the following overt acts in furtherance of said conspiracy and to effect the objects thereof:

"1. On or about May 1, 1964, Ted Jackson and Alice Mills had a long distance telephone conversation between Scranton, Pennsylvania and Youngstown, Ohio.

"2. On or about May 2, 1964, Alice Mills and George Winford, Jr. telegraphed $15.00 from Youngstown, Ohio, to Ted Mason (emphasis supplied) in Scranton, Pennsylvania.

"3. On or about May 2, 1964, Ted Jackson, in Scranton, Pennsylvania, purchased a Greyhound Lines bus ticket for (name of girl omitted here) from Scranton, Pennsylvania, to Youngstown, Ohio; in violation of Title 18, Section 371, United States Code."

The second count of the indictment charged appellant with the substantive offense of transporting the girl from Scranton, Pennsylvania, to Youngstown, Ohio, for the purpose of prostitution, or with the intent and purpose to induce, entice or compel the girl to become a prostitute. The third count charged Ted Jackson with the same substantive offense.

The name "Ted Mason" in the indictment was a typographical error. There is no evidence in the record as to any transactions with a "Ted Mason." The mention of "Ted Mason" clearly was intended to refer to "Ted Jackson," whose name appeared as a defendant at four other places in the indictment.

Appellant filed a motion to dismiss the indictment because of this variance, which motion was overruled by the district court. The district judge charged the jury as follows concerning this typographical error:

"In the first count, the second overt act is — `No. 2. On or about May 2, 1964 Alice Mills and George Winfield, Jr.\' * * * that is simply a typographical error, and while the Indictment reads George Winfield, Jr., it is amended to read Charles Winford, Jr., and as I said, it is simply a typographical error — and it goes on to say — `They telegraphed $15.00 from Youngstown, Ohio to Ted Mason in Scranton, Pennsylvania\'. Now, gentlemen of the jury, in the second overt act it says they telegraphed $15.00 to Ted Mason and for your purpose and for your consideration you will consider this to be `Ted Jackson\'.

"Now, Overt Act No. 2 goes on, and I will read it correctly, it says, `No. 2. On or about May 2, 1964, Alice Mills and Charles Winford, Jr., telegraphed $15.00 from Youngstown, Ohio to Ted Jackson in Scranton, Pennsylvania.\' Now, that is the second overt act charged in the Indictment. Again, while the Indictment reads in the second overt act, George Winfield, Jr., for your purposes that means Charles Winford, Jr., for the defendant. It also reads telegraphed to `Ted Mason\' and for your purposes of considering the guilt or innocence of the accused, that means `Ted Jackson\'."

A variance is not to be regarded as material where it is not of a character which could have mislead the defendant at the trial, Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 79 L.Ed. 1314; or where it involves no element of surprise prejudicial to the efforts of the defendant to prepare his defense, United States v. Ragen, 314 U.S. 513, 526, 62 S.Ct. 374, 86 L.Ed. 383, rehearing denied, 315 U.S. 826, 62 S.Ct. 620, 86 L.Ed. 1222; or where it does not affect substantial rights. Rule 52(a), F.R. of Crim.P.; cf. United States v. Haskins, 345 F.2d 111, 114 (C.A.6). "Whether or not a variance is prejudicial is a judgment that must be made on the facts of each case." United States v. Russano, 257 F.2d 712, 715 (C.A.2).

There is nothing in the record in the present case to indicate that appellant was surprised, mislead or prejudiced in any way by the reference to "Ted Mason" in the indictment. The identity of Ted Jackson with the case was well known to appellant at the time the indictment was returned.

We find the contention of appellant concerning the variance between the indictment and the evidence to be without merit.

2) Time limitation on closing argument

Appellant next contends that, in view of the length and complexity of the trial, the district judge erred in restricting the time for argument by her attorney to thirty-five minutes.

As stated by this court in Wagman v. United States, 269 F. 568, 573-574 (C.A.6), cert. denied, 255 U.S. 572, 41 S.Ct. 376, 65 L.Ed. 792: "The court has undoubted right to limit argument within the bounds of a reasonable discretion." See also Kolp v. United States, 2 F.2d 953 (C.A.6). The cases on this subject are collected in a...