United States v. Wheeler

• Decision Date: 25 June 1971
• Docket Number: No. 632-70.,632-70.
• Citation: 444 F.2d 385
• Parties: UNITED STATES of America, Plaintiff and Appellee, v. Joe Glennis WHEELER, Defendant and Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

444 F.2d 385 (1971)

UNITED STATES of America, Plaintiff and Appellee, v. Joe Glennis WHEELER, Defendant and Appellant.

No. 632-70.

United States Court of Appeals, Tenth Circuit.

June 25, 1971.

Robert Van Sciver, Salt Lake City, Utah, for defendant and appellant.

C. Nelson Day, U. S. Atty., and James F. Housley, Asst. U. S. Atty., Salt Lake City, Utah, for plaintiff and appellee.

Before PICKETT, BARRETT and DOYLE, Circuit Judges.

BARRETT, Circuit Judge.

Appellant Joe Glennis Wheeler and Jake Chess were convicted on an indictment charging that on or about July 1, 1969, they did knowingly and willfully transport and cause to be transported in interstate commerce, to wit, from Spokane, Washington, to Salt Lake City, Utah, four women for the purpose of prostitution in violation of Title 18 U.S. C.A. § 2421. Wheeler's main contentions on appeal are that (a) improper instructions were given to the jury; and (b) the evidence is insufficient to support conviction.

Title 18, U.S.C.A. § 2421, popularly known as the Mann Act, deals with the transportation of women in interstate commerce for the purpose of prostitution or other immoral purposes. The Act was created to curb white slave traffic in interstate commerce and to eliminate traffic in women by procurers who forced victims to lead a life of debauchery. Forrest v. United States, 363 F.2d 348 (5th Cir. 1966), cert. denied 386 U.S. 995, 87 S.Ct. 1315, 18 L.Ed.2d 343 (1967).

Facts

Toward the end of June, 1969, Wheeler drove from Salt Lake City, Utah, to Spokane, Washington with Chess in Chess's car. In Spokane they met Janet Anderson at Sam's Barbecue Pit where she was working as a prostitute. Chess stayed one night with her. She gave him some of the money she had received as a prostitute. Wheeler and Chess also met Marlene Kellis, a prostitute, and Ada Jones (Mitchell) and Sylvia Emery, runaways from the Good Shepherd Home in Spokane. Marlene, Ada and Sylvia lived for a while with Wheeler, Chess, and another man.

Wheeler, in a conversation with Janet Anderson, Chess, and another man, stated he had a night club in Salt Lake City and that prostitutes were making good money there. Wheeler said he would take Janet to Salt Lake City to see his club. In conversations between three of the women and Chess, during which Wheeler was present some of the time, they discussed having the women go with the co-defendants to Salt Lake City, how prostitution worked, and how to perform as a prostitute.

Wheeler and Chess stayed in Spokane several days and then took the four women to Salt Lake City in Chess's car. During the trip they discussed what was happening on West South Second, Salt Lake City, an area known to prostitutes, the money prostitutes made there, and the night club. They arrived in the early part of July. After they arrived in Salt Lake City, three of the women engaged in prostitution in the West South Second area. They gave the money they received to Chess. The evidence is not clear whether the fourth woman engaged in prostitution at the same time. Janet Anderson stayed in several hotels and lived with Chess for a while. Chess paid for her rooms at two hotels.

Marlene Kellis and Ada Jones (Mitchell) stayed for a few days at Wheeler's apartment and then stayed in a hotel with Janet Anderson. Sylvia Emery lived at a motel for a week and then moved in with Wheeler at a hotel. They registered as Mr. and Mrs. Wheeler.

Ada Jones (Mitchell) testified that Sylvia Emery worked as a prostitute and that she gave the money she made to Wheeler. Janet Anderson, Marlene Kellis, and a police detective testified that they believed Sylvia worked as a prostitute.

"Purpose" Element of Mann Act

The appellant relies on Mortensen v. United States, 322 U.S. 369, 64 S. Ct. 1037, 88 L.Ed. 1331 (1944) in which the defendants owned a house of prostitution in Nebraska and took two of the prostitutes to Utah for a vacation. The defendants were convicted under the Mann Act. The United States Supreme Court reversed the conviction, holding that it was an innocent trip. The fact that the girls returned to prostitution after the trip was not deemed relevant. The appellant relies on the following language from that case:

"An intention that the women or girls shall engage in the conduct outlawed by Section 2 must be found to exist before the conclusion of the interstate journey and must be the dominant motive of such interstate movement. And the transportation must be designed to bring about such result. Without that necessary intention and motivation, immoral conduct during or following the journey is insufficient to subject the transporter to the penalties of the Act." 322 U.S. at 374, 64 S.Ct. at 1040.

Wheeler contends that the accused must be personally motivated by an intent to transport women across a State line to engage in prostitution and that the alleged purpose of the women to engage in prostitution in Utah cannot be imputed to him even though he transported them knowing of their purpose.

The Mortensen case is distinguishable from the case at bar. In Mortensen, supra, the sole purpose of the trip was recreation. Here the sole purpose of the trip for the four women was that of engaging in prostitution in Salt Lake City. Courts have refused to extend Mortensen beyond its facts. Forrest v. United States, 363 F.2d 348 (5th Cir. 1966), cert. denied 386 U.S. 995, 87 S.Ct. 1315, 18 L.Ed.2d 343 (1967), supra. Our fact situation is similar to that in Forrest, supra. In that case the defendant traveled with some girls on a vacation to Florida and then returned to Alabama to resume prostitution. The Court held that the journey was for the dual purpose of recreation and prostitution even though the defendants were not to collect from the prostitutes' earnings on the trip. Since one of the purposes of the trip was for the purpose of prostitution and that purpose was in the minds of the appellants at the inception of the journey, the Court upheld their convictions.

In Cleveland v. United States, 329 U.S. 14, 17, 67 S.Ct. 13, 91 L.Ed. 12 (1946) the Court stated that:

"While Mortensen v. United States, supra 322 U.S. p. 377 64 S.Ct. 1037, rightly indicated that the Act was aimed `primarily\' at the use of interstate commerce for the conduct of the white slave business we find no indication that a profit motive is a sine qua non to its application."

Thus, even though Wheeler may not have received any proceeds from the women's practice of prostitution, either on the trip or in Utah, such proof is not necessary for a conviction under the Act. The purpose may be proved by circumstantial evidence, with consideration being given to the conduct of the parties within a reasonable time before and after the transportation. Dunn v. United States, 190 F.2d 496 (10th Cir. 1951).

A person is presumed to intend the natural consequences of his acts. United States v. Fleenor, 162 F.2d 935 (7th Cir. 1947). If the jury found, as it did, that Wheeler knew the four women were practicing prostitutes and that he transported them interstate, then the natural consequence of his action would be that they would engage in prostitution after their arrival, which they did. The purpose element of the Act may rest with an inference. The intent of the appellant was a question of fact for the jury. It may be proven by circumstantial evidence. United States v. Ebey, 424 F.2d 376 (10th Cir. 1970); VanNattan v. United States, 357 F.2d 161 (10th Cir. 1966); Stewart v. United States, 311 F.2d 109 (9th Cir. 1962).

There is substantial evidence to support the jury's verdict that Wheeler had the required "purpose of prostitution" in his mind before he transported the women across State lines. Wheeler discussed the possibility of prostitution in Salt Lake City with the four women before leaving Spokane. The requirement that the transportation be for the "purpose of prostitution" was met when Wheeler transported the women to Utah from Washington with the knowledge that they intended to engage in prostitution in Salt Lake City. Cleveland v. United States, supra; Gates v. United States, 122 F.2d 571 (10th Cir. 1941), cert. denied 314 U.S. 698, 62 S.Ct. 478, 86 L.Ed. 558 (1941).

The Supplemental Instruction

Wheeler contends that the court committed prejudicial error in giving an additional instruction to the jury in response to a jury inquiry. The jury asked the following question:

"If one knowingly takes a prostitute across a state line, is he guilty?"

No objections were made by defense counsel after the instructions were given and before the jury retired as required by Rule 30 of the Federal Rules of Criminal Procedure. Thus the court will not consider error in the instructions on appeal unless they are clearly prejudicial and erroneous. See Osborn v. United States, 391 F.2d 115 (10th Cir. 1968); Edwards v. United States, 374 F.2d 24 (10th Cir. 1966), cert. denied 389 U.S. 850, 88 S.Ct. 48, 19 L.Ed.2d 120 (1967); Felton v. United States, 344 F.2d 111 (10th Cir. 1965).

Wheeler contends that the Court's additional instruction created the impression that the jury could find him guilty without finding that he violated the purpose element of Section 2421. Wheeler, on appeal, objects to the additional instruction in which the Court stated in part:

"Now, if the Government\'s proof satisfies you beyond a reasonable doubt that they are prostitutes and that they were knowingly and wilfully transported across a state line, the fact that they are prostitutes, if that is established beyond a reasonable doubt to your satisfaction, is one fact in the case, one circumstance in the case, from which you can draw inferences about their state of mind, that is, whether or not it was for the purpose of prostitution down there." Tr. page 164.

Wheeler contends that if "they" and "their" are interpreted to apply to the women, then the jury could have found him guilty if satisfied simply that he knew the women were prostitutes and that he transported...