Brief for the Respondent in Opposition — Pine v. United States

INDEX

5403840—43

Page

Opinion below. -- . 1

Jurisdiction - - - - - 1

Questions presented 2

Statutes involved _ - - x ‘

Statement {

Argument. 15

Conclusion. 30

CITATIONS

Cases:

Allen v. United States, 4 F. (2d) 688, certiorari denied

sub nom. Mullen v. United States, 267 U.S. 598 Tee 90

Athanasaw v. Uniled States, 227 U.S. 326 2. 15, 16, Tv, 18, 30

Beale v. United States, 71 fe. Goa) WS7 15

Berger Vv. United States, 295 U.S. 78-. 29

Bever v. United States, 251 Fed. 39- 15

Booth v. United States, 57 I. (2d) 192 A 20

Burgess v. United States, 294 Fed. 1002 15, 16

Caminetti v. United States, 242 U.S. 470 co 17

Cheatham v. State, 67 Miss. 335 we 96

Clark v. United States, 211 Fed. 916_- 2 16

Commonwealth v. New, 142 Pa. Super, 358, 16 A. (2d) 437 17

Craig v. United Staves, 81 ¥. (2d) 816, certiorari denied, 298

U.S. 690. ae 21

Diggs v. United States, 220 Fed. 545, affirmed sub nom.

Caminetti v. United States, 242 U.S. 470 26

Direct Sales Co., Inc. v. United States, No. 598, October

Term, 1942, decided June '4, 1943 19, 20, 24

Dunlop v. United States, 165 U. 8. 486 16

Fowler v. United States, 273 Fed. 15 20

Freed v. United States, 266 Fed. 10132* ; 5 26

Galatas v. United States, 80 F. (2d) 15, certiorari denied,

207 U- 8 711 t 21, 24

Gebardi v. United States, 287 U.S. 112 as 25

Glasser v, United States, 315 U.S. 60- 20, 21

Goode v. United States, 58 F. (2d) 105 20

Hanks v. United States, 97 F. (2d) 309 26

Hanley v. United States, 123 Fed. 849 : 26

Hays v. United States, 231 Fed. 106, affirmed sub nom.

Caminetti v. United States, 242 U.S. 470 26

Heitler v. United States, 244 Fed. 140- ae a 26

Jezewski v. United States, 13 F. (2d) 599, certiorari denied,

273 U.S. 735- Ere : 20

Kelly v. United States, 297 Fed. 212----- — 21

King v. United States, 55 F. (2d) 1058---------- yore 16

(I)

eg

II

Cases—Continued. Page

Mackreth v. United States, 103 F. (2d) 495.--.----------. 25

Marino v. United States, 91 F. (2d) 691, certiorari denied

sub nom. Gullo v. United States, 302 U.S. 764---------. 20

Martin v. United States, 100 F. (2d) 490, certiorari denied,

BOG Ui. ht eee chat sy sess dun dhveevecwotenceecet was 20, 21

Marz v. United States, 86 F. (2d) 245_...-..------------- 20, 24

McDonnell v. United States, 19 F. (2d) 801, certiorari

MOG AIO UCR Ue basasccciwannisasesammesse nice es 21

Meyers v. United States, 94 F. (2d) 433, certiorari denied,

SOEs Pe OUR ea ate eee ant waded oe kewi taeda ws 24

Miller v. United States, 95 F. (2d) 492_--_-----.-.------ 25

Moens v. United States, 267 Fed. 317__.---------------. 16, 18

Mutual Film Corporation v. Industrial Commission of Ohio,

BUGS OC eee a eetinas saw san aoe ke cadease sera s 17

People v. Pesky, 230 App. Div. 200, affirmed, 254 N. Y. 373. 17

People v. Wendling, 258 N. Y. 451_------- Pee ere es 17

Rachmil v. United States, 288 Fed. 782_........._...---- 26

Reginelli v. United States, No. 767, October Term, 1942,

certiorari denied, April 5, 1946_......2-.2.2-22226.0... 17

Shama v. United States, 94 F. (2d) 1, certiorari denied, 304

ie Oeeiwet aca woTe ke MAG Rak ean be nanm denon 21

siack'v.. United States, 27.8; (2d) 16... .....222.2.. 6.2.4. 20

rate VERO, LOIN Oy. BOU ds dann ccnonkiwston cueen uu wn 25

Suslak v. United States, 213 Fed. 918..-....-..--------- 16, 28

Telman v. United States, 67 F. (2d) 716, certiorari denied,

BUGIS erOUNUL wlan cAloe eo Rewe Ca ie wae oc wan acme 20

Van Pelt v. United States, 240 Fed. 346_____.____.-____- 28

United States v. Altman, 8 F. Supp. 880_---------------- 18

United States v. Becker, 62 F. (2d) 1007____..__._____-- " 25

United States v. Bitty, 208 U. 8. 3938.................... 17

Uniied States v. Block, 88 F. (2d) 618__-_________._____- 25

United States v. Brand, 220 Ped. 847 .........2-0--020ce 15

United States v. Elgin, J. & E. Ry. Co., 298 U.S. 492______- 15

United States v. Harrison, 121 F. (2d) 930, certiorari denied,

PEL Okt a kdaecun Woewe owl ee Cau eee eee eee ead 20

United States v. Holte, 236 Wik etereveg ns tem ce eae 25

United States v. Lewis, 110 F. (2d) 460, certiorari denied,

ROU tie a a Alin Ae Cas eres aed a emai ao 15, 16, 28

United States v. Long, 16 F. Supp. 231___.._.....__-__-- 15

United States v. Manton, 107 F. (2d) 834, certiorari denied,

Wee ite CUE e cn cowe ag eabeenstueh becuse euwaken 20

Wainer v. United States, 82 F. (2d) 805_____-___________. 26

Wallace v. United States, 243 Fed. 300__...____._______- 26

Statutes:

Act of June 25, 1910, c. 395, Sec. 2, 36 Stat. 325 (18 U.S. C.

398), known as the Mann Act_._..__._._...._._____. 2

Section 37 of the Criminal Code (18 U.S. C. 88)__________- 3

Inthe Supreme Court of the United States

OcroBeR TERM, 1943

No. 111

FRED PINE, PETITIONER

v.

UNITED STares OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES CIRCUIT COURT OF APPEALS FOR THE FIFTH

CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the circuit court of appeals (R.

711-719) has not yet been reported.

JURISDICTION

The judgment of the circuit court of appeals

was entered April 26, 1943 (R. 719), and a peti-

tion for rehearing (R. 719-729) was denied May

25, 1943 (R. 729). The petition for a writ of

certiorari was filed June 19, 1943. The jurisdic-

tion of this Court is invoked under Section 240 (a)

of the Judicial Code, as amended by the Act of

February 13, 1925. See also Rules XI and XIII

(1)

Z

of the Criminal Appeals Rules promulgated by

this Court May 7, 1934.

QUESTIONS PRESENTED

1. Whether Athanasaw v. United States, 227

U.S. 326, which holds that the Mann Act applies

to the interstate transportation of a woman or

girl for the purpose of placing her in surround-

ings that tend ‘‘to induce her to give herself up

to a condition of debauchery which eventually and

naturally would lead to a course of immorality

sexually,’’ should be overruled.

2. Whether there is sufficient evidence to sup-

port the jury’s finding that petitioner was a party

to the conspiracy charged in the indictment.

3. Whether the trial court erred in failing to

give instructions requested by petitioner.

+. Whether the record shows any misconduct

on the part of government counsel that constitutes

reversible error.

STATUTES INVOLVED

The Act of June 25, 1910, ce. 395, See. 2, 36 Stat.

825 (18 U. 8S. C. 398), known as the Mann Act,

provides:

Any person who shall knowingly trans-

port or cause to be transported, or aid or

assist in obtaining transportation for, or in

transporting, in interstate or foreign com-

merce, or in any Territory or in the District

of Columbia, any woman or girl for the pur-

pose of prostitution or debauchery, or for

3

any other immoral purpose, or with the in- :

tent and purpose to induce, entice, or com-

pel such woman or girl to become a prosti-

tute or to give herself up to debauchery, or

to engage in any other immoral practice ; or

who shall knowingly procure or obtain, or

cause to be procured or obtained, or aid or

assist in procuring or obtaining, any ticixet

or tickets, or any form of transportation or

evidence of the right thereto, to be used by

any woman or girl in interstate or foreign

commerce, or in any Territory or the Dis-

triet of Columbia, in going to any place for

the purpose of prostitution or debauchery,

ov for any other immoral purpose, or with

the intent or purpose on the part of such

person to induce, entice, or compel her to

give herself up to the practice of prostitu-

tion, or to give herself up to debauchery, or

any other immoral practice, whereby any

such woman or girl shall be transported in

interstate or foreign commerce, or IM any

Territory or the District of Columbia, shall

be deemed guilty of a felony, and upon con-

viction thereof shall be punished by a fine

not exceeding $5,000, or by imprisonment

of not more than five years, or by both such

fine and imprisonment, in the discretion of i

the court.

Section 37 of the Criminal Code (18 U. 8. C.

88) provides:

If two or more persons conspire

to commit any offense against the United

States * * * and one or more of such

* * *

LEY EAE RAAT EEE?

Sears

4

parties do any act to effect the object of

the conspiracy, each of the parties to such

conspiracy shall be fined not more than

$10,000, or imprisoned not more than two

years, or both.

STATEMENT

On June 15, 1940, petitioner, Al Youst, Evelyn

Clark Youst, and Carroll King were indicted, in

the District Court of the United States for the

Southern District of Florida, for conspiracy to

violate the Mann Act. Petitioner secured a sever-

ance, Al Youst and Evelyn Clark Youst were tried

and convicted, and there was a mistrial as to King,

who was taken ill during the trial.’

On July 31, 1941, petitioner was separately re-

indicted for the same conspiracy (R. 1-4). The

indictment charged him with having conspired

with Al Youst, Evelyn Clark Youst, Rachel Clark,

and Carroll King, to bring about the transporta-

tion of seven named women and girls,* and other

women and gitls whose names were to the grand

jurors unknown,’ from Chattanooga, Tennessee,

* Neither the original indictment nor any of the proceedings

thereunder are included in the record here. See in support of

the statements in the text, R. 207, 233, 235, 298, 341, 643, 659-

660.

* Mary and Frances McCullar, Billie Johnson, Ann Ben-

nett, Jessie Asher, Betty Martin Tinker, and Frances Jobe

(R. 2).

*The Government’s bill of particulars (R. 15-22) identi-

fied Rachel Clark (R. 19, 22) as the only one of the women

and girls (R.2) previously unnamed who was known to have

been transported in furtherance of the conspiracy.

5

Atlanta, Georgia, and other places, to Dade

County, Florida, to work for Palm Lake Develop-

ment, Ine., a corporation owning and operating

the La Paloma Club, amid surroundings and con-

ditions tending to induce and influence them ‘‘to

give themselves up to a condition, form and type of

debauchery that would naturally lead them to a

course of sexual immorality’? (R. 1-2). Ten overt

acts were alleged.

Petitioner’s first trial, m October 1941, ended

in a mistrial (see R. 157, 463, 659-660), On a

second trial he was found guilty by a jury (R.

29-23, 692) and was sentenced to two years’ im-

prisonment and to pay a fine of $1,000 (R. 24).

Upon appeal to the Cireuit Court of Appeals for

the Fifth Circuit the conviction was affirmed (R.

711-719).

Petitioner does not challenge the sufficiency of

the evidence which establishes the conspiraey al-

leged in the indictment, and admits (Pet. 7) that,

pursuant to the conspiracy, women and girls were

brought from other states to the La Paloma Club

where they were placed in conditions and sur-

roundings of debauchery of the kind that would

lead naturally and inevitably to sexual immoral-

ity! He denies only the sufficiency of the evidence

‘Throughout the time that the club was in operation, ex-

cept when the “heat” was on, the entertainment was lewd,

lascivious, suggestive, and depraved (R. 90-92, 14. 98-99, 135,

168-169, 173, 186-187, 188, 195, 204, 206, 208-209, 231, 306, 371,

389, 418-421, 429). Except when the “heat” was on, peti-

tioner both witnessed and encouraged performances of such

6

to show that he was a party to or had knowledge

of such conspiracy or any acts done in furtherance

thereof (Pet. 16, 20, 25-26, 41, 45-46). We shall

therefore summarize only that portion of the evi-

dence upon which we rely to show petitioner’s

participation in the conspiracy:

Petitioner was born in 1890 and has practiced

law at Miami, Florida, since 1914 (R. 529, 595-

598). Most of his practice has been in the field

of criminal law, both as the county solicitor of Dade

County, Florida (where the La Paloma Club was

located), and as defense counsel (R. 533, 596-598),

Prior to December 31, 1938, Al Youst operated the

La Paloma Club at 24th Avenue and 79th Street

in Miami (R. 87, 526). The club had been raided

by the Ku Klux Klan in the fall of 1937 (R. 34,

37, 88, 110, 601-602), and petitioner was asked

a character (R. 95, 122, 195, 285, 317-318, 432, 548). Sev-

eral of the girls who were induced to come from other

states testified to having never previously seen or partici-

pated in performances of the type put on at the La Paloma

Club (R. 306, 371-872, 384, 412, 429-430). Most of the

girls used as entertainers and dancers were under age (R. 91,

102, 136, 140, 166, 170, 172, 183, 208, 304, 369, 383, 410).

Sexual relations at the club were free and easy (R. 93-95,

108-109, 135-136, 307, 403, 408). The main topic of conver-

sation among the employees was sex (R. 99, 125, 169). There

was testimony that petitioner frequently talked sex and forms

of sex perversion with the girls (R. 95, 96, 98, 115-118, 125),

and that he engaged in an unnatural form of sexual inter-

course with one of them (R. 134-135, 142, 153, 162, 167, 174)

and made advances to another (R. 318, 326-327, 333-339) ; and

that Youst made advances to several others (R. 372-873, 381,

390-391, 431, 443).

7

and paid by Youst to take the “‘heat’’ off the club

by taking care of the local ‘stiffs’ (R. 34, 36).

Shortly thereafter, in November or December,

1937, the club was raided by officers from the

County Solicitor’s Office of Dade County, Florida

(R. 37, 38, 110), and Youst and his entertainers

were placed in jail (R. 602). Petitioner secured

their release from jail (R. 529-530, 603, 606-607),

and instrueted the witness Harkette to impress

upon the employees of the club, who were called

to testify at a hearing before the County Solicitor,

“that they never saw any strip tease dances and

never saw any girl expose her body at any time

and nothing obscene’? (R. 38). As a result of

their testimony at this hearing Youst and King

were subsequently charged with perjury and de-

fended by petitioner (R. 516-519, 531-532, 606).

As a further outgrowth of the ‘eivcilibiaatlens by

the County Solicitor both an injunction proceed-

ing and criminal informations were filed against

Youst, charging him with maintenance of a public

nuisance on the basis of the lewd and lascivious

character of the entertainment at the La Paloma

Club. In these proceedings Youst was repre-

sented by petitioner, on whose advice Youst al-

lowed an injunction decree to be entered by con-

sent and pleaded nolo contendere to the criminal

information (R. 525-528, 554-558). Petitioner

also represented Youst or the club in a number of

other legal proceedings (R. 514-528, 560-561).

SAOR4O—43-—- — 2

8

Because of having been convicted of burglary

Youst was unable to secure a liquor license (R.

601, 610). In the latter part of 1938 he pur-

chased, in the name of his sister, Mrs. MacNichol,

a five-acre tract at 27th Avenue and 79th Street,

three blocks away from the old location (R. 88,

534, 536). Construction of a new clubhouse and a

number of cottages was completed under the su-

pervision of Bert Reeves (R. 52). Petitioner was

frequently present while the work was in progress

(R. 56-57, 210). At the solicitation of petitioner,

and with $1,500 secured at petitioner’s office,

Holmes Allen applied for and received a liquor

license in the name of the ** Palm Club,”’ which peti-

tioner represented to Allen was to be run by a

partnership consisting of petitioner, Reeves, and

Allen (R. 67-68, 71). Thereafter, early in 1939,

Palm Lake Development, Inc., was organized

with petitioner, Reeves, and Allen as the original

incorporators. Reeves was president, Allen vice

president, and petitioner secretary-treasurer. Of

the 20 shares issued, 10 were issued to Youst’s

sister, Mrs. MacNichol, 7 to her husband, 2 to peti-

tioner, and 1 to Reeves which he never received

and subsequently indorsed over to aid the corpora-

tion in securing a loan. The property on which

the buildings had been erected was transferred by

Mrs. MacNichol and her husband to the corpora-

tion. (R. 52-58, 61-64, 66, 71-74, 537, 539-541,

575, 611-612.) Subsequently, in September 1939,

§

by falsely representing that Youst had nothing

to do with the management of the club but was

merely to be manager of the floor show, peti-

tioner secured a transfer to the corporation of the

liquor license that Allen previously had procured

in the name of the ‘* Palm Club’”’ (R. 48-51, 52-54,

57, 99-60, 69, 72, 75-79, 80-82, 84-87, 546-547).

After discovering that the entertainers from the

old club had made their appearance at the new

club (R. 68, 88, 96-97, 239, 547-548), Allen re-

signed as president out of ‘‘self-respect”’ (R. 68,

70, 72-73). Reeves then became president and

Frank Talley, orchestra leader at the club, be-

came vice president (R. 538-539).

The minute-book of the eorporation was kept at

all times in petitioner’s law office (R. 470, 486,

609). Checks issued by the corporation required

the signatures both of petitioner as secretary-

treasurer and of Youst as general manager (R.

58-59, 471, 476, 487, 609-610). Petitioner re-

ferred to himself, was referred to by others, and

was respousible for his being so referred to by

others, as the ‘‘owner’’ and ‘‘boss’’ of the club

(R. 112-114, 169, 174, 176, 179, 212, 248, 253,

257, 277, 286-287, 293, 321, 351, 415, 423, 434, 578,

620, 636-637).2 When the ‘‘heat’’ was on the

*'The government witness, Evelyn Clark Youst, testified :

“He [petitioner] would tell me to call all the girls at the bar

and introduce him as the boss and he was the owner of the

La Paloma Club and my husband was just a manager

there * * * Almost every time he would be out there he

ABA Ry Wy: SEANAD ores

i

club, but only then, he would instruct the girls

not to put on the type of performances that had

drawn the ‘‘heat’’ (R. 212, 231-232, 247, 253, 415-

416, 420-421). He referred to himself before

them, and was regarded by them, as the ‘‘boss”

(R. 112-114, 174, 212, 248, 253, 257, 277, 286-287,

293, 321, 351, 415, 423, 434). He was frequently

at the club (R. 37-39, 56-57, 88, 89, 134, 171, 187,

209, 210, 301, 317, 391, 415, 431, 445, 544, 545,

548). On his visits to the club he would go behind

the bar, ‘‘look in the cash register or punch some

of the waiter’s pads,’’ engage in conversation with

Youst as to the management, go over the books

with Youst, and receive money from Youst (R.

210-212, 213, 247-248, 250-253, 393, 482-433).

Petitioner himself testified that he knew as early

as the spring or summer of 1939 that some of

the girls had come from New Orleans (R. 636),

One of the girls whom Youst had brought from

New Orleans in the fall of 1938, testified that

after her arrival at the club petitioner had in-

troduced himself to her saying ‘‘ You are one of the

crew Al brought up here?’’ (R. 184-185, 189, 192-

195). ;

There was further evidence that petitioner knew

that other girls had been transported from other

states. In March 1939, Evelyn Clark Youst, a

co-conspirator who had begun working at the La

would say ‘I am the owner of the club,’ to bring in the new

girls and to introduce them as he was the boss” (R. 212).

Bene ye

1]

Paloma Club in November 1938 (R. 208, 238) and

becaine the mistress and later the wife of Youst

(R. 210-211, 215, 236, 243), made a trip to her

home at Chattanooga, at Youst’s request, to get

gitls to work at the La Paloma Club.’ She traveled

at the club’s expense. She got in touch with Betty

Martin Tinker in Chattanooga, who came to Miami

around Easter, 1939, on money wired her by the

cub (R. 217-219, 274-277, 369-371, 375-377).

Mrs. Tinker testified that upon being introduced to

her, petitioner said ‘So you are from Chattanooga

too”’ (R. 374).

Again, in June 1939, Rachel Clark, Evelyn’s

sister, who had come from Chattanooga to Miami

the preceding January at Evelyn’s request (R.

214), returned to Chattanooga. Before she left

petitioner told her “if you find any girls as cute

as you are, bring them down’ (R. 320, 329-331,

333, 366-367, 562, 581, 638). Carroll King, a co-

conspirator and bartender at the club, accom-

panied Rachel as far as Atlanta, and it was com-

mon gossip at the club that they were going to

bring back ‘‘some cute ones” (R. 219-220, 264—

265, 307-309). At Chattanooga Rachel put an

advertisement in the Chattanooga Times for June

28, 1939 (R. 309-310). The McCullar sisters and

Billie Johnson answered this advertisement (R.

* She testified :““We were always looking for new girls, new

talent all the time. Every time I would go on a vacation my

husband would always tell me to bring back some new girls”

(R. 213, 216, 257).

LANE AGE AOI

12

310-311, 384-386, 412). At Atlanta, King secured

Ann Bennett and Jessie Asher (R. 504-505, 508).

King then drove to Chattanooga, brought the Me-

Cullar sisters and Billie Johnson to Atlanta, there

picked up Jessie Asher and Ann Bennett and

returned with the five to Miami about June 30

or July 1, paying for gasoline and their meals en

route, with money advanced to him by Mrs. Irene

Clark, the mother of Evelyn and Rachel (R. 221,

225-226, 385-388, 396, 413, 505, 509). Mrs. Clark

was reimbursed by a check from the Palm Lake

Development, Inc., signed by both Youst and peti-

tioner (R. 223-225, 266-269, 311). Shortly after

the arrival of these five girls at the club Evelyn

introduced petitioner to them as their “boss,”

pursuant to his expressed desire “‘to meet the

babes from Tennessee”’ (R. 226, 423). Upon be-

ing introduced to them petitioner said ‘‘you are

the babes that Carroll King brought down from

Tennessee ?’? (R. 391, 392, 405, 415).

Rachel Clark returned to Miami at Evelyn’s

request on money supplied by their mother, who

was reimbursed by a check from the Palm Lake

Development, Inc., signed by both Youst and peti-

tioner (R. 226-228, 263, 270-274, 312-313). Eve-

lyn testified that there was some delay in securing

petitioner’s signature on the check, and that con-

trary to the usual practice of his signing checks

in advance, before they were made out, he did

not sign this one until after the payee’s name had

13

been inserted and Youst had signed it (R. 228,

971-273). She also testified that while Rachel

was away petitioner said to Youst in her presence

that since Youst had Evelyn, ‘‘when Rachel would

come back he [petitioner] was going to have

Rachel’’ (R. 229, 262, 280). Rachel testified to a

previous request from petitioner that he’ be per-

mitted to have unnatural relations with her (R.

318, 326-327, 333-339).

While denying knowledge of Youst’s activities

in procuring girls, petitioner admitted on cross-

examination that had he been told how Youst was

getting them it would have made no difference—

it would have been ‘‘all right’? with him (R. 631).

He did not deny having been consulted by Carroll

King, at the request of Youst, as to whether the

newspaper advertisements for dancers and enter-

tainers might get them ‘‘into trouble with the

white slave law’’ (R. 631-632). Petitioner ac-

tively aided Youst in keeping at the club girls un-

der age who were being investigated by the proba-

tion authorities. Thus, in August 1939, Youst

brought Vicki Van Payne, Ileen Randall, and

Patricia O’Hara to petitioner’s office, for the pur-

pose of having him straighten out the difficulties

and enable them to continue working at the club.

Petitioner told them that thenceforth he would

be their legal guardian (R. 132-134, 142, 165-166,

171-173). Although being told that Patricia

O'Hara was eighteen (R. 172), petitioner wrote

14

**out’a telegram stating that she was born October

el 19) which was forwarded by mail to her

herxwho, at the girl’s request, sent peti-

- a the telegram he himself had composed (R,

LideilS, 872-573). He turned it over to the juve-

rities (R. 634).

Folk Wang the raid by the Federal Bureau of

Thvestigation on March 26, 1940, Evelvn Clarke

Youst and QRachel Clark made statements to

officers of the Bureau iMiplicating petitioner and

Youst. Petitioner urged them to retract these

statements when called to testify at the prelimi-

nary hearing before the United States Commis-

sioner, and to say that they were told to make

them bv the officers. Since it was ‘‘big men like

Al and Fred” that the F. B. I. were after and

‘they would not put kids like us in jail,’’ the

girls should testify in such a way as to throw the

whole responsibility on Evelyn. In that way every-

one would ‘‘beat the rap,’’ and they would then

put up a big sign saving: ‘*We beat the Ku Klux

Klan, county and state, and beat the sheriff's

office and now we beat the Federal Government.

This is Youst’s and Pine’s notorious night club.

We are going to show you everything”? (R. 233-

237, 294-297, 323-324, 359, 363). The Govern-

ment’s witness Laura Baker testified that after

the F, B. I. raid both Youst and petitioner had

requested that she say nothing to the authorities

(R. 101-102, 121-122) about her having spent a

15

night at a local hotel, at the request of Youst,

with a man whose aid in securing a liquor license

Youst desired to obtain (R. 94).

ARGUMENT

I

Petitioner asks (Pet. 18, 23-24, 33-39) this

Court to overrule Athanasaw v. United States,

997 U. S. 326, which holds that the Mann Act

applies to the interstate transportation of a woman

or girl for the purpose of placing her in surround-

ings that tend ‘‘to induce her to give herself up to

a condition of debauchery which eventually and

naturally would lead to a course of immorality

sexually.”’ He contends that this imterpretation

deprives the statute of an ascertainable standard

of guilt and constitutes an unwarranted extension

of its compass.

The Athanasaw case was decided in 1913, less

than three years after the statute’s enactment, by

a unanimous court. It has been followed by the

lower federal courts.’ By allowing the statute to

remain unamended, Congress has acquiesced in

this long-standing judicial construction of it.

United States v. Lewis, 110 F. (2d) 460 (C. C. A. 7),

certiorari denied, 310 U. S. 634; Beyer v. United States, 251

Fed. 39 (C.C. A. 9) ; Burgess v. United States, 294 Fed. 1002

(App. D. C.); United States v. Brand, 229 Fed. 847 (S. D.

N. Y.); United States v. Long, 16 F. Supp. 231 (E. D. Il.).

* Cf. United States v. Elgin, J. & E. Ry. Co., 298 U.S. 492,

500; Beale v. United States, 71 F. (2d) 787, 739 (C. C. A. 8).

ea

ELT! RE

16

We submit that the Athanasaw decision is an

application of the plain meaning of the statute

rather than a judicial enlargement of it, and that

neither as written nor as thus applied does the

statute violate the ‘‘void for vagueness’’ rule upon

which petitioner relies. While the words of the

statute, ‘‘debauchery,’’ ‘‘any other immoral pur-

pose,’”? and ‘‘any other immoral practice,” apart

from their context, might be given an extremely

wide application, they are restricted contextually

to debauchery and immoral purposes or practices

of a sexual character.” But as was ruled in the

Athanasaw case, the statutory language does not

require that the immediate objective be sexual in-

tercourse. It is clearly sufficient if the surround-

ings to which the girl is taken are such as to con-

duce naturally to sexual immorality. Such a con-

struction of the statute can do no violence to the

common understanding of the words ‘debauch-

ery’? or ‘‘immorality’’ when confined as they are

Petitioner does not con-

10

to sexual looseness.

° United States v. Lewis, 110 F. (2d) 460, 462 (C. C. A.7),

certiorari denied 310 U. S. 634; Suslak v. United States, 213

Fed. 913, 917 (C. C. A. 9) ; King v. United States, 55 F. (2d)

1058, 1061 (C. C. A. 10); Burgess v. United States, 294 Fed.

1002, 1004 (App. D. C.).

2 Construed in the light of common understanding of the

terms used, the statute and the language of this Court in the

Athanasaw case are no less precise and definite as a guide to

conduct than are the various federal and state obscenity stat-

utes, See Dunlop vy. United States, 165 U. S. 486, 500-501;

Clark v. United States, 211 Fed. 916, 918 (C. C. A. 8) : Moens

v. United States, 267 Fed. 317 (App. D.C.) ; Commonwealth

17

tend—and in view of the evidence he obviously

eould not suecessfully contend—that the La

Paloma Club was not within common understand-

ing ‘‘an efficient school of debauchery of the spe-

cial immorality’? that the statute was designed

to cover. Consequently, the interstate transporta-

tion of a Woman or girl into such surroundings,

for the purpose of having her participate in or be

present at the sexual exhibitions and acrobatics

performed there, can be deemed nothing less than

transportation for an ‘‘immoral purpose’ or the

purpose of ‘‘debauchery,’’ giving those terms of

the statute their common understanding. To say

the contrary ‘‘would shock the common under-

standing of what constitutes an immoral purpose.”’

Caminetti v. United States, 242 U.S. 470, 486.

Accordingly, there is even less basis for asking

this Court to reconsider the Athanasaw decision

than there was for the request, rejected at the last

Term,” that it reconsider and overrule its deci-

sion in Caminetti v. United States, 242 U.S. 470,

which held the Mann Act applicable to noncom-

mercialized vice. The two decisions are parts of

v. Vew, 142 Pa. Super. 358, 16 A. (2d) 437 (1940) ; People v.

Wendling, 258 N. Y. 451 (1932): People v. Pesky, 230 App.

Div. 200 (1930), affirmed, 254 N. Y. 373 (1930). Cf. Mutual

Film Corporation vy. Industrial Commission of Ohio, 236

U.S. 230, 245-246. Cf. United States v. Bitty, 208 U.S. 393,

402.

1 Athanasaw vy. United States, 227 U.S., at 333.

Reginelli vy. United States, No. T67, October Term, 1942,

certiorari denied, April 5, 1943.

Pai 25 |

18

a single pattern of interpretation accepted in the

early years of the statute’s enforcement and con-

sistently applied since.”*

II

In rejecting petitioner’s contention that the evi-

\ a:

dence does not support the verdict, the circuit

court of appeals, while stating that the evidence

made it clear that petitioner ‘*knew both generally

and particularly awhat was gomg on at the club”

(R. 717), held that it was not necessary for the

Government to prove that petitioner ‘‘had knowl-

edge of the purpose to bring or the actual bringing

in of a particular girl’; that ‘‘It was sufficient

to show that he knew of, and was a party to, a

general plan or conspiracy to transport girls or

women unlawfully in interstate commerce’ (R.

718). Dut petitioner, while denying that. the

evidence showed any such general conspiracy, as-

serts that by the indictment (R. 2) and bill of

particulars (R. 22) he was placed on trial for

conspiring to transport certain specifie individuals,

and that the circuit court of appeals was therefore

in error in sustaining his conviction on the basis

Tf, as we submit, the statute means what this Court said

it meant in the Athanasaw case, it cannot matter that the

draftsmen of the indictment in the case at bar utilized the

language of that decision rather than the terminology of the

statute, as petitioner points out (Pet. 38), An indictment

need not follow the statutory language; it is sufficient if it

alleges the elements of the offense. See JM/oens vy. United

States, 267 Fed. 317, 320-322 (App. D.C.) ; United States v.

Altman, 8 F. Supp. 880, 884 (W. D. N: Y.).

1y

of a more general conspiracy (Pet. 7-11, 16, 20,

95-26, 41, 45-46).

It is unnecessary, we believe, to determine

whether the conspiracy charged was as narrow

in scope as petitioner insists, since the evidence,

we submit, was sufficient to- make petitioner a

party either to a general conspiracy to transport

girls as needed, or to a narrower one to transport

specific individuals. Under settled prineiples of

the law of conspiracy, petitioner may be tied into

a conspiracy of the latter type even though he

may never have heard of any particular girl or

been aware of the specific circumstances of her

transportation; and, of course, it was not neces-

sary to show that all of the girls named were

transported pursuant to the conspiracy, or indeed

for that matter that any of them were so trans-

ported, since it is not necessary to establish that a

substantive offense was committed.

Petitioner’s position that the evidence does not

support the verdict is apparently predicated to a

large extent upon the erroneous. assumption that

there must be ‘‘direet or positive testimony or

proof’? (Pet. 4) of his guilty connection with the

conspiracy charged. But it is settled that no

formal agreement is essential to the formation of a

conspiracy “ and that the existence of an agreement

A

“*Not the form or manner in which the understanding is

made, but the fact of its existence and the further one of

making it effective by overt conduct are the crucial matters.”

Direct Sales Co. Ine. ve United States, No. 598. October

Term, 1942, decided June 14, 1943. The existence of an

SRR TSS PSO IE ak TS FAI A DLL EMINENT Sg PAT the de IDO SPT ONT EFL TRE ON

20

may be shown by inference from acts, conduct,

and attendant circumstances.” A conspiracy is

often susceptible of proof in no other way than

by a collocation of circumstances tending to sus-

tain the inferences necessary to support the ver-

dict,"° and one who knowingly cooperates to fur-

ther the objects of a conspiracy thereby becomes

a party to it.” It is not essential that he under-

agreement is sufficiently shown by concert of action, “all the

parties working together understandingly, with a single de-

sign for the accomplishment of a common purpose.” /’orwler

v. United States, 273 Fed. 15, 19 (C. C. A. 9): Marino vy.

United States, 91 F. (2d) 691, 694 (C. C. A. 9), certiorari

denied sub nom. Gullo y, United States, 302 U.S. 764; Marx

v. United States, 86 F. (2d) 245, 250 (C. C. A. 8) 3 Stack vy.

United States, 27 F. (2d) 16,17 (C.C. A. 9). It is sufficient

if there is a mutual implied understanding, and cooperation

in furthering the purposes of the unlawful enterprise.

Martin y. United States, 100 F. (2d) 490, 495-496 (C. C. A.

10), certiorari denied, 306 U.S. 649: Booth v. United States,

dT F. (2d) 192, 197 (C. C. A. 10): Jezewski v. United States,

13 F. (2d) 599, 602 (C. C. A. 6), certiorari denied, 273 U.S.

735; Allen v. (nited States, 4 F. (2d) 688, 691 (C. C. A. 7),

certiorari denied sub nom. Mullen v. United States, 267 U.S.

598.

13 (Joode v. United States, 58 F. (2d) 105, 107 (C. C. A. 8):

Tellman v. United States, 67 F. (2d) 716, 717 (C. C. A. 10),

certiorari denied, 292 U.S. 650; Glasser v. United States, 315

U.S. 60, 80; United States v. Harrison, 121 F. (2d) 930, 934

(C. C. A. 3), certiorari denied, 314 U.S. 661.

16 United States v. Manton, 107 F. (2d) 834, 889 (C.C. A.

2), certiorari denied, 309 U.S. 664; irect Sales Co., Ine. v.

United States, No. 593, October Term, 1942, decided June 14,

1943.

17 Allen v. United States, 4 F. (2d) 688, 698 (C. C. A. 7),

certiorari denied sub nom. Mullen v. United States, 267 U.S.

598; Booth v. United States, 57 F. (2d) 192, 197 (C.C. A. 10);

Martin v. United States, 100 F. (2d) 490, 496 (C. C. A. 10),

certiorari denied, 306 U.S. 649.

{0 ERGOT ATER ON Le OTRO TN FE OL ER TS

elt alec

ii

21

stand the entire scope of the conspiracy. It is

sufficient if he knows its purposes in a general

way and participates in their furtherance. More

specifically, in prosecutions for conspiracy to vio-

late the Mann Act ‘‘the jury may infer intent from

all the circumstances in evidence,’’ and evidence

of the conduct of a party after the transportation

has been completed may be sufficient to sustain

his conviction.” And of course the evidence, with

the inferences reasonably to be derived therefrom,

must be viewed in the light most favorable to the

Government. Glasser v. United States, 315 U.S.

60, 80.

The evidence set forth in the Statement, supra,

clearly shows that as early as November or De-

cember, 1937, the nature of petitioner’s contacts

with Youst and the La Paloma Club was sufficient

to put him on notice as to the kind of a place it

was, and that the transportation to it from out-of-

state of anv women or girls to serve as entertain-

ers would constitute a violation of the Mann Act.

Petitioner was further warned by the nature of

* McDonnell vy, United States, 19 F, (2d) 801, 808 (.C.C. A.

1), certiorari denied, 275 U.S. 551; Galatas v. United States,

80 F, (2d) 15,23 (C. C. A. 8), certiorari denied, 297 U.S.711:

Craig v. United States, 81 F. (2d) 816, 822 (C. C. A. 9), cer-

tiorari denied, 298 U.S. 690; Martin v. United States, 100 F.

(2d) 490, 495-496 (C. C. A. 10), certiorari deri ed, 306 U. S.

649.

*® Shama v. United States, 94 F. (2d) 1,4 (C. C. A. 8), cer-

tiorari denied, 304 U.S. 568; Welly v. United States, 297 Fed.

212 (C.C. A. 9).

POR AME LEONEL he ONL OL A OEE OTORES POP LTE: TCO ANID ION RT PR EBT PERI SID AT NE UAL ENERO ath PENA GSO OP TE

99

the state court proceedings filed against Youst in

November 1938, and in which he was represented

by petitioner (R. 525-528, 554-558). Despite this

knowledge petitioner entered upon a business as-

sociation with Youst in the operation of the La

Paloma Club. To enable the club to have the

liquor license necessary to its life, he admits (Pet.

6-7) that he deliberately misrepresented to the

County Commissioners the relation of Youst to

the club. He became an inecorporator, share-

holder, and seecretary-treasurer of the corporation

owning and operating the club, under an arrange-

ment permitting no checks to be issued unless

signed by him as well as Youst. Although serv-

ing as a “front’? for Youst, he was no mere

‘“dummy’’ as he now contends (Pet. 5) he was.

He referred to himself, and was responsible for

his being referred to by others, as ‘fowner’’ and

‘‘boss’’ of the club. By his own testimony (R.

548) as well as by that of others (R. 95, 188, 195,

285, 317-318, 432), he witnessed and encouraged

the sexual exhibitions performed as part of the

regular entertainment, and was the one who

would instruct the girls when the ‘‘heat’’ was on,

but only then, to call a halt (R. 212, 231-232, 247,

253, 415-416, 420-421). By his own testimony he

callously disavowed any interest in how the enter-

tainers were procured (R. 631), despite the fact

of its being common knowledge at the club, where

he was frequently present on business, that they

Leet

we

23

were regularly being brought from other states, and

despite the fact of IMs having signed checks that

paid for their transportation. Knowing, according

to his own testimony, by the spring or summer of

1939 that Youst had brought some entertainers

from New Orleans (R. 636), he introduced himself

to one of them (Flora May Richardson) saying

“You are one of the crew Al brought up here?”

(R. 189, 192-195). To Evelyn Youst he expressed

adesire to meet ‘‘the babes from Temnessee’* and

was introduced to them as their ‘‘boss’’? (R. 226,

423), saying to them ‘*You are the babes that

Carroll King brought down from Tennessee ?”’

(R. 391, 392, 405, 415). While Rachel Clark, to

whom he had made advances (R. 318, 326-327, 333-

339), was in Tennessee, he told Youst that as Youst

had Evelyn Clark ‘‘when Rachel would come back

he [petitioner] was going to have Rachel’’ (R.

229, 262, 280). He actively aided Youst to the

point of deliberate deception of the age of girls

whom the juvenile authorities were investigating

(R. 132-134, 142, 165-166, 171-173). After the

raid by the Federal Bureau of Investigation, and

before anyone had been indicted, he showed full

realization of the extent to which he himself as

well as Youst had become incriminated (R. 233-

237, 294-297, 323-324, 359, 363).

In sum, the conclusion cannot be avoided that,

although petitioner left the details of the manage-

EELS HCN AEP LY BW I TAG ME

PEA ET POO NCI i A

24

ment of the club to Youst and was not interested

in the identity of the particular girls to be pro-

cured, he, nevertheless, was generally aware of all

that was going on, had a mutual understanding

and common purpose with Youst, and actively

aided and abetted the consummation of that pur-

pose. The collocation of circumstances sustaining

this conclusion is far too strong for him now to

assert convincingly complete lack of knowledge or

guilty connection with the unlawful purposes and

acts of his coconspirators whose ‘‘front’’ he de-

liberately chose to be. When a conspiracy is es-

tablished, as it was here, only slight quantitative

evidence connecting a particular defendant with it

may in the circumstances be substantial and, there-

fore, sufficient to warrant submission to the jury

of the issue of his guilt.” Here the evidence was

abundant.”

2° Meyers vy. United States, 94 F. (2d) 483, 434 (C. C. A. 6),

certiorari denied, 304 U.S. 583; Mare v. United States, 86 F.

(2d) 245, 250 (C. C. A. 8); Galatas v. United States, 80 F.

(2d) 15, 24 (C. C. A. 8), certiorari denied, 297 U.S. 711.

*t Here, as in Direct Sales, Inc. v. United States, No. 598,

October Term, 1942, decided June 14, 1943, “There is more

than suspicion, more than knowledge, acquiescence, careless-

ness, indifference, lack of concern. There is informed and

interested cooperation, stimulation, instigation. And there is

also a ‘stake in the venture’ which, even if it may not be essen-

tial, is not irrelevant to the question of conspiracy. * * *

In such a posture the case does not fall doubtfully outside

either the shadowy border between lawful cooperation and

criminal association or the no less elusive line which separates

25

Ill

Petitioner urges as reversible error (Pet. 11-14,

26-28, 32, 46-54) the trial court’s refusal to give

to the jury petitioner’s requested instructions 6,

10, 24, and 29 (R. 679-680, 682, 687-688, 691-692).

Requested instruction No. 6 (Pet. 11; R. 679),

to the effect that accomplice testimony ‘should

be received with extreme caution,’’ failed to

identify by name Evelyn Youst and Rachel Clark

as the only Government witnesses who could possi-

bly have been deemed accomplices of petitioner.

The other girls named in the indictment were in

no sense accomplices but victims.” The requested

instruction was therefore, as the circuit court of

appeals held, ‘‘couched in such general terms as to

be misleading’? (R. 713).

Furthermore, even as applied solely to accom-

plice testimony, the giving of an instruction of

this nature rests, as the court below held (R. 713-

714), in the discretion of the trial court.” It is

conspiracy from overlapping forms of criminal cooperation.”

The judge emphasized throughout his charge that in order

to convict petitioner the jury must know that he had knowl-

edge of the purpose of the conspiracy and that he inten-

tionally participated in it (R. 663-671).

“ (ebardi v. United States, 287 UO. S. 112, 118; Miller vy.

United States, 95 F. (2d) 492, 494 (C. C. A. 9): ef. United

States v. Holte, 236 U.S. 140; Mackreth vy. United States, 103

F. (2d) 495, 496 (C. C. A. 5).

* United States vy. Block, 88 F. (2d) 618, 621 (C.C,. A. 2):

“It is common practice so to caution a jury, but it is not neces-

sary even when as here the accused asks that it be done”;

United States y. Becker, 62 F. (2d) 1007, 1009 (C. C. A. 2):

Si

26

‘‘well established’’ that a conviction under the

Mann Act, as under other statutes, ‘‘may rest on the

evidence alone of a coconspirator or accomplice.”

Heitler v. United States, 244 Fed. 140, 144 (C.C. A.

7); Diggs v. United States, 220 Fed. 545, 552-553

(C. C. A. 9), affirmed sub nom. Caminetti v. United

States, 242 U.S. 470, 495. That the trial court did

not abuse its discretion here is plain. The testimony _

of Evelyn Youst and Rachel Clark was abundantly —

corroborated by other witnesses who were not ac-

complices. In this respect the case is materially dif-

ferent from Freed v. United States, 266 Fed. 1012

(App. D. C.), relied on by petitioner (Pet. 20, 47),

where the reversal was for failure to advise the

jury ‘‘as to the danger of convicting upon the

uncorroborated testimony of accomplices.’’ 266

Fed. at 1016. (Italies supplied.)

Requested instruction No. 10 (Pet. 12; R. 682)

was to the effect that if the jury should find that

petitioner had no knowledge of the transportation

“The warning is never an absolute necessity. It is usually de-

sirable to give it; in close cases it may turn the scale ; but it is

at most merely a part of the general conduct of the trial, over

which the judge’s powers are discretionary, like his control

over cross-examination, or his comments on the evidence”;

Rachmil v. United States, 288 Fed. 782, 785 (C. C. A. 2); |

|

Hanley v. United States, 123 Fed. 849 (C. C. A. 2); Hanks

v. United States, 97. F. (2d) 309, 311-312 (C. C. A. 4);

Wainer vy. United States, 82 F. (2d) 305, 307-308 (C. C. A.7);

Wallace v. United States, 243 Fed. 300, 807 (C. C. A. 7);

Hays vy. United States, 231 Fed. 106, 110 (C. C. A. 8), affirmed

sub nom. Caminetti v. United States, 242 U. 8. 470, 495;

Cheatham v. State, 67 Miss. 335 (1890); State v. Haney, 19

N. C. 390, 398 (1837).

—

27

of any of the named women or girls, or no intent

that any of such women or girls would be trans-

ported, it must acquit him. This instruction was

properly refused. In so far at least as it required

knowledge by petitioner of the identity of the

girls transported, it introduced an element which,

of course, it was not necessary for the Govern-

ment to establish as a prerequisite to petitioner’s

conviction upon a charge of conspiracy to trans-

port. Additionally, the trial judge in his charge

not only defined the elements of a conspiracy, but

correctly delineated the factors which conditioned

petitioner’s accountability, and over and over

again reiterated the essentials of which the jurv

would have to have a *‘full, firm, and abiding con-

viction’’ in order to hold petitioner guilty (R.

662-673).

Requested instruction No. 24 (Pet. 12-13; R.

687-688) related to the use of circumstantial evi-

dence. A comparison of the requested charge

with the one actually given on circumstantial evi-

dence * demonstrates beyond question that the cir-

““Circumstantial evidence is the proof of independent

facts which if proven beyond a reasonable doubt another fact

would follow as a natural or very probable conclusion from

the facts that have been proven, Guilt established by cireum-

stantial evidence is an inference of guilt from other facts

independently proven. Proof by circumstantial evidence is

the proof of one fact by proof of the existence of certain other

facts. Guilt, if proven by circumstantial evidence, must to

the satisfaction of the jury be reasonabl[y], natural[ly] and

probably inferred beyond a reasonable doubt from the cir-

cumstances of other facts proven and such inference of guilt

mete ay

28

euit court of appeals was correct in holding that

the one given embodied all the essentials of the one

requested (R. 715).

Requested instruction No. 29 (Pet. 13-14; R,

691-692) would have told the jury that ‘“‘the

maturity or immaturity and the experience or in-

experience”’’ of the women or girls brought to the

La Paloma Club were ‘‘material facts’’ for its

consideration in determining the question, submit-

ted to it (R. 671-672), as to waether the conditions

there were such as would tend to induce them to

give themselves up to a condition of debauchery

eventually and naturally leading to a course of

immorality sexually. As the circuit court of ap-

peals held (R. 715), the Mann Act is not an anti-

seduction statute, and the requested instruction

was, under the circumstances of this case at least,

‘fa wholly incorrect statement of the law.’’”

The language in United States v. Lewis, 110 F.

(2d) 460, 464 (C. C. A. 7), certiorari denied, 310

U. S. 634, upon which petitioner relies (Pet. 22,

52), did not relate to an instruction given or re-

fused and was used in a case in which the de-

fendants contended that ‘‘their exhibitions were

intended to be educational and to show the disas-

must be consistent only with guilt and inconsistent with in-

nocence. These independent facts or circumstantial evidence

must be proven beyond a reasonable doubt as independent

facts and leading to such conclusion under the rules as I

have stated.” (R. 672-673.)

*5 Suslak vy. United States, 213 Fed. 913 (C. C. A. 9); Van

Pelt v. United States, 240 Fed. 346, 348 (C. C. A. 4).

Eee

29

trous effects of immoral conduct.’’ However sig-

nificant may be the maturity or immaturity of a

participant in an exhibition of such a character,

there is no basis for the application of any such

criterion in a case such as this, where education

in debauchery, of both participants and spectators,

could have been the sole purpose.

IV

Under a heading phrased in large part in the

language of this Court’s opinion in Berger v.

United States, 295 U. S. 78, 84-85, petitioner

makes sweeping charges of misconduct on the part

of the prosecuting attorneys, alleged to constitute

reversible error although no exception was taken

at the trial and no assignment of error was predi-

cated thereon (Pet. 14, 22-23, 28-29, 32, 54-56).

Without discussing any specific instances, he in

effect asks this Court to search the entire record

in the hope of its finding evidence of such mis-

conduct. Space limitations obviously preclude the

Government from undertaking any detailed refuta-

tion of petitioner’s sweeping charges. It suffices to

say that the pages of the record cited by petitioner

(Pet. 56) carry their own refutation of the ex-

istence of any misconduct even remotely resem-

bling that which occurred in the Berger ease.

On the basis of a ‘‘most careful reading of the

record’? the cireuit court of appeals had ‘no

doubt that the conduct of the prosecution did not

30

9

constitute reversible error’’ and was in fact ‘“‘re-

markably free’’ from anything in the nature of

prejudicial misconduct or unfairness on the part

of the prosecution, despite a vigorous personal

defense by one who was himself an experienced

criminal lawyer (R. 713-714).

CONCLUSION

No adequate reason is presented for asking this

Court to reconsider its decision in the Athanasaw

case. Petitioner had a fair trial and his convie-

tion is adequately supported by the evidence. No

question is presented which warrants review on

certiorari. It is, therefore, respectfully submitted

that the petition should be denied.

Oscar Cox,

Acting Solicitor General.

WENDELL BERGE,

Assistant Attorney General.

Oscar A. Provost,

Epwarp G,. JENNINGS,

Special Assistants to the Attorney General.

W. Marvin SMITH,

Attorney.

JuLY 1943,

U S GOVERNMENT PRINTING OFFICE: 1943