Youst v. United States, 11352.
| Decision Date | 08 November 1945 |
| Docket Number | No. 11352.,11352. |
| Citation | 151 F.2d 666 |
| Parties | YOUST v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Flay E. Randle, of Springfield, Mo., for appellant.
H. S. Phillips, U. S. Atty., of Tampa, Fla., and Fred Botts, Asst. U. S. Atty., of Miami, Fla., for appellee.
Before HUTCHESON, WALLER, and LEE, Circuit Judges.
On August 1, 1941, appellant was convicted on both counts of an indictment jointly charging him and three others with conspiring, in violation of 18 U.S.C.A. § 88, to transport certain women in interstate commerce for immoral purposes, in violation of 18 U.S.C.A. § 398. On or about the same date he was found guilty on each of eight counts in a second indictment charging him with unlawfully transporting and causing to be transported certain women in interstate commerce for immoral purposes, in violation of 18 U.S.C.A. § 398. On each of the counts of the conspiracy indictment he was sentenced to serve two years in the penitentiary and to pay a fine of $1,000, said sentences to run consecutively. On the first four counts of the second indictment he was sentenced to serve two years in the penitentiary and to pay a fine of $1,000, and to serve a like sentence and pay a like fine on the last four counts of that indictment, said sentences to run consecutively, the first to begin with the expiration of the sentences imposed on Counts 1 and 2 of the conspiracy indictment. On August 4, 1941, appellant was delivered to the warden of the penitentiary in Atlanta, Georgia, to begin serving said sentences.
On January 23, 1945, by written motion he petitioned the United States District Court for the Southern District of Florida to vacate the judgment and sentence on the second count of the conspiracy indictment for the reason that it was illegal and void in that the conspiracy alleged in the second count arose out of the same agreement which constituted the conspiracy alleged in the first count, and that for one conspiracy only one sentence could be lawfully imposed. The court below overruled the motion, and appellant prosecuted this appeal, assigning as error the refusal of the court below to vacate the judgment and sentence on Count 2 of the conspiracy indictment for the reason set out in the motion.
Here appellant urges that the four corners of the indictment clearly show that the two counts have to do with one conspiracy, and that the indictment on its face alleges only a single agreement to violate the White-Slave Traffic Act, 18 U.S. C.A. § 397 et seq. Appellee meets this contention by urging first that the question is moot, as appellant has served the sentences imposed upon him on Counts 1 and 2 of the indictment; and second, if not moot, then in the absence of all evidence from the record we must assume that the evidence proved two separate conspiracies, not one, and so assuming must affirm the judgment appealed from.
The two counts, identical in many respects, differed in that Count 1, in the main, alleged the offense of unlawful transportation of three women from Chattanooga, Tennessee, to Dade County, Florida; whereas Count 2, in the main, alleged the offense of unlawful transportation of two women from Atlanta, Georgia, to Dade County, Florida. Specifically, each count set forth in identical language that during January, 1939, and continuously at designated times thereafter up to and including April 8, 1940, in Dade County, Florida, and at divers other places in Georgia and Tennessee appellant unlawfully conspired and agreed to commit certain offenses against the United States of America, in particular, unlawfully to transport and cause to be transported in interstate commerce certain women for the purpose of debauchery; Count 1 named three women as having been transported from Chattanooga, Tennessee, to Dade County, Florida; Count 2 named two women as having been...
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