United States v. Reed, 302.

• Citation: 96 F.2d 785
• Decision Date: 09 May 1938
• Docket Number: No. 302.,302.
• Parties: UNITED STATES v. REED et al.
• Court: U.S. Court of Appeals — Second Circuit

96 F.2d 785 (1938)

UNITED STATES v. REED et al.

No. 302.

Circuit Court of Appeals, Second Circuit.

May 9, 1938.

Henry A. Uterhart and Alfred M. Schaffer, both of New York City (Joseph Otis, of New York City, of counsel), for appellants June Reed and George Hammond.

Lamar Hardy, U. S. Atty., of New York City (Seymour M. Klein and Walter B. Lockwood, Assistant U. S. Attorneys, both of New York City, of counsel), for the United States.

Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

CHASE, Circuit Judge.

These appellants were tried and convicted in the District Court for the Southern District of New York on an indictment charging them with violations of the White Slave Traffic Act §§ 2, 3, 18 U.S.C. A. §§ 398 and 399, and with conspiring so to do. In each of three substantive counts they were charged with causing a woman named to be transported in interstate commerce for the purpose of prostitution; in each of three other counts they were charged with inducing a woman named to be transported in like commerce for a like purpose; and in a seventh count the conspiracy was charged. Appellant Reed was convicted and sentenced upon all counts to imprisonment and to pay identical fines. The imprisonment sentences were made to run concurrently and the payment of the fine imposed under one count to "cancel the need for payment of fines imposed on the other counts." Two of the substantive counts, each relating to a woman who came to New York from Florida, were dismissed as to appellant Hammond. He was convicted on all the other counts and was sentenced on them in the same way as was appellant Reed.

Reliance is put upon three grounds for reversal. It is argued (1) that evidence gained by the unlawful interception of communications by telephone was erroneously admitted; (2) that a motion for a directed verdict of acquittal was erroneously denied; and (3) that appellant Reed, who voluntarily testified in behalf of the appellants, was compelled to answer questions upon cross-examination in violation of her constitutional right of immunity from self-incrimination.

One communication by telephone, which was a conversation appellant Reed in New York had with one Sally Kelly in Florida concerning some letters Reed had written Sally Kelly, was unlawfully intercepted by a witness who was permitted to testify, over the objection of the appellants, to what was said. This was error. Nardone v. United States, 302 U.S. 379, 58 S. Ct. 275, 82 L.Ed. ___. This conversation concerned certain letters which appellant Reed had written Sally Kelly. A man in Florida was trying to get Mrs. Reed to pay him $200 for them, she told Miss Kelly, who then assured her that she need pay nothing for the letters had already been destroyed. But, while it was error to permit this witness to testify to the conversation he had unlawfully intercepted, the error was harmless, since both Miss Kelly and Mrs. Reed testified concerning that conversation and to the same effect as did the witness who had tapped the wire. Hartzell v. United States, 8 Cir., 72 F.2d 569; McLendon v. United States, 5 Cir., 14 F.2d 12. And the burden to show reversible error is on the appellants. Nash v. United States, 2 Cir., 54 F.2d 1006.

Two government witnesses also intercepted and testified as to many communications by telephone between appellant Reed and persons undisclosed as well as to some between appellants Reed and Hammond. They tended to show that appellant Reed, assisted by appellant Hammond, was operating a house of prostitution in New York City and that the girls named in the substantive counts of the indictment were prostitutes connected with such house. There was no attempt to prove that these communications were intrastate in character rather than interstate, though it is now said that as to many of them the inference that they were intrastate may be drawn from what was said. Perhaps this is so, but that will, in any event, leave some which were erroneously admitted because they may have been interstate communications. United States v. Bonanzi, 2 Cir., 94 F.2d 570. But there was ample evidence without any of that gained by wire tapping to prove beyond a reasonable doubt that appellants were doing what the intercepted communications indicated and that these girls were some of their prostitutes. No impartial jury could have found otherwise on the evidence had the...