Petition for Writ of Certiorari — Craft v. United States

ae L“ORARYT " ; Bupreme Mert er ow,

@ueremMeE COURT, UV: 5 -390 YF Y

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

Misc, WB oo... ..5,

JUDY CRAFT, ROBERT SAMUEL YOUNG, MELVINA YOUNG,

AMOS LANE BRIDGES, KATHLEEN MAUDE MUCKENSTRUM,

LIZ WILSON and COLLEEN BURNS,

Petitioners,

VS

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

for the Fifth Circuit

NORMAN S. LONDON

LAWRENCE J. FLEMING

418 Olive Street

St. Louis, Missouri 63102

Attorneys for Petitioners

ISDE LEE IS a IDO EST TEED,

St. Louis Law Printing Co., Inc., 812 Olive Street 63101 314-231-4477

INDEX

PN Dh. c Genes Wu 0d sr kiddeieiakeawkeons

EE aa cA BK Na Socks hak RRKA BOREL ERR KAS

a ee eae ee wala e baa

Rea ai ine ae oe ar POs a ee Ce

RS her ie ea Sig Bete eg ee ee

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B. Summary of Trial Record ....................

ee ee eee

Reasons for Granting the Writ ..................05.

1.

The decision below fails to recognize that where a

specific state statute is charged in a Section 1952

Indictment, the state law must be constitutionally

sound in order to support a conviction ..........

Guidance is needed from this Court in fashioning an

appropriate burden of proof—reasonable doubt in-

STE TTT TT eT CTE ET TTT CET

This Court should provide criteria for determining

the extent of permissible comment by a prosecutor

on the credibility of government witnesses .......

a a ere ae re eee ete oe

0 AP eee rey ey err: ere ea yee rey eS

Cases Cited

Compton v. United States, 305 F. 2d 119 (9th Cir. 1962)

Connally v. General Construction Co., 269 U.S. 385, 391 .

Ss An & & NY N N

12

12

10

Ter

DARN ARS BHA SHNCATE AIREE SY ile Be

ii

Dunbar v. United States, 156 U.S. 185, 199 (1895) ..... 12

Dunn v. United States, 407 F. 2d 833, 885-886 (5 Cir.

GR AN gee rg a rarer en ae ee 16

Government of Virgin Islands v. Turner, 409 F. 2d 102 (3

SE < . WREN SE Ca wh ta Wes ba SS Va ak SHER AO 15

Gradsky v. United States, 373 F. 2d 706, 709-710 (5 Cir.

CE De Cee Vhb eka yh CASA R EAS AARC Ones 15

Lanzetta v. New Jersey, 306 U.S. 451 ............045. 10

Levy v. State, 208 S.W. 667 (Tex. 1919) ............. 9

AEE SAMO, A GLE ND nck cece ene nennnans 10

McMillian v. United States, 363 F. 2d 165 (5 Cir. 1966) 17

Miles v. United States, 103 U.S. 304 (1880) .......... 12

People v. Webb, 25 NYS 2d 554 (1941) ...........54. 9

Speiser v. Randall, 357 U.S. 513, 523, 534 (1958) ...... 12

State v. Bourg, 182 So. 2d 510 (La. 1966) ............ 9

State v. Gardner, 156 N.W. 747 (Iowa, 1916) ......... 9

State v. Marsh, 196 N.W. 930 (Minn. 1922) ........... 9

State v. Perry, 436 P. 2d 252 (Ore. 1967) ............ 9

State v. Poague, 72 N.W. 2d 620 (Minn. 1955) ........ i)

State v. Ray, 193 N.W. 2d 315 (Minn. 1971) .......... i)

State v. Simpson, 50 N.W. 2d 661 (N.D. 1951) ........ i)

State v. Thuna, 109 P. 331 (Wash. 1910) ............ i)

Stromberg v. California, 283 U.S. 359, 368 ............ 10

United States v. Barbera, 486 F. 2d 333 (2d Cir. 1973) .. 12

United States v. Cerone, 452 F.2d 274 (7th Cir. 1972),

Se, I WO RE PD oes knee cee we ceeees 8

United States v. Cohen Grocery Co., 255 U.S. 81 (1921) 11

United States v. Crisco, 493 F. 2d 232 (8th Cir. 1974) ... 12

United States v. Kahn, 412 F.2d 272 (2 Cir. 1973), cert.

a Sr ee Seer err reer re eee 8

United States v. Nardello, 393 U.S. 286 .............. 11

United States v. National Dairy Products Corp., 372 U.S.

Pe a kta Get Geian sede stankhannesdanscas 11

United States v. Petrillo, 332 U.S. 1 (1947) ........... 11

United States v. Senano, 496 F. 2d 81 (5 Cir. 1974) ..... 17

Statutes Cited

State of West Virginia Code, Chapter 61-8-5(b) ....3, 5, 7,8

Title 18, United States Code, § 1952 ................ 4,7

Title 18, United States Code, § 1952 (a) and (b) ........ 2

Title 18, United States Code, § 2422 ................ 4

Title 18, United States Code, § 3651 .............4.. 4,5

Title 18, United States Code, § 4208(a)(2) ............ 4

Be Me. B POEED A hha tna S kA GG cepa daa s ev ennaea 2

pet "EN EB ee re rere ree 9

Textbook Cited

Devitt and Blackmar, Federal Jury Practice and Instructions

to. ER. Aer ee ere c eer aey eee 13,14

Py OB Te Rey 4

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

Mee. FO Sexcckubea

JUDY CRAFT, ROBERT SAMUEL YOUNG, MELVINA YOUNG,

AMOS LANE BRIDGES, KATHLEEN MAUDE MUCKENSTRUM,

LIZ WILSON and COLLEEN BURNS,

Petitioners,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

for the Fifth Circuit

Petitioners pray that a Writ of Certiorari be issued to review

the judgment of the United States Court of Appeals for the

Fifth Circuit entered in this case on July 3, 1975.

OPINION BELOW

The opinion of the Court of Appeals is, as yet, unpublished,

but is appended hereto as Exhibit A.

selene tly delat et ahi stance

JURISDICTION

The judgment of the Court of Appeals was entered on July

3, 1975. On July 30, 1975, this Court entered an order ex-

tending the time to file a Petition for Writ of Certiorari to and

including September 1, 1975. Jurisdiction of this Court is

envoked under 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Should a Federal Court address itself to the constitu-

tionality of a state statute in a federal criminal case charging

use of interstate facilities to violate a said statute?

2. Does an instruction stating that the defendant “may rely”

upon evidence brought out on examination of Government

witness improperly shift the burden of proof to the defendant?

3. What criteria shall be applied in determining whether a

prosecutor’s opening remarks regarding the credibility of a Gov-

ernment witness constitute reversible error?

STATUTES INVOLVED

Title 18, United States Code, § 1952 (a) and (b)

(a) Whoever travels in interstate or foreign commerce or

uses any facility in interstate or foreign commerce, in-

cluding the mail, with intent to—

(1) distribute the proceeds of any unlawful activity;

or

(2) commit any crime of violence to further any un-

lawful activity; or

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(3) otherwise promote, manage, establish, carry on,

or facilitate the promotion, management, establish-

ment, or carrying on, of any unlawful activity,

and thereafter performs or attempts to perform any of

the acts specified in subparagraphs (1), (2), and (3), shall

be fined not more than $10,000 or imprisonment for not

more than five years, or both.

(b) As used in this section “unlawful activity” means (1)

any business enterprise involving gambling, liquor on

which the Federal excise tax has not been paid, narcotics,

or prostitution offenses in violation of the laws of the

State in which they are committed or of the United

States, or (2) extortion, bribery, or arson in violation of

the laws of the State in which committed or of the United

States.

State of West Virginia Code, Chapter 61-8-5(b):

‘

*. . . (b) Any person who shall engage in prostitution,

lewdness, or assignation, or who shall solicit, induce, en-

tice, or procure another to commit an act of prostitution,

lewdness or assignation; or who shall reside in, enter or

remain in any house, place, building, hotel, tourist camp,

or other structure, or enter or remain in any vehicle,

trailer or other conveyance for the purpose of prostitution,

lewdness or assignation; or who shall aid, abet, or partici-

pate in the doing of any of the acts therein prohibited,

shall upon conviction for the first offense under this sec-

tion, be punished by imprisonment in the county jail for a

period of not less than sixty days, nor more than six

months, and by a fine of not less than fifty dollars and not

to exceed one hundred dollars . . .”

GAIA ANP Se

STATEMENT

A. Convictions and Sentences

; This is an appeal from the judgments, convictions and sen-

tences of the United States District Court for the Southern Dis-

: trict of Florida, wherein defendants Robert Young, Amos Lane

Bridges, Melvina Young, Kathleen Maude Muckenstrum, Judy

Craft, Colleen Burns, and Isabel Prince were convicted of one

count of conspiracy to engage in interstate prostitution activities

in violation of Title 18 United States Code, §1952, and defend-

ants Robert Young, Amos Lane Bridges, and Melvina Young

were convicted of one count of inducing a woman to engage

in interstate prostitution activities in violation of Title 18, United

States Code, §2422, and further, defendants Robert Young,

Amos Lane Bridges, and Kathleen Maude Muckenstrum were

: convicted of one count of engaging in interstate prostitution ac-

tivities in violation of Title 18, United States Code §1952.

BA jkr,

nal Aah aS

i Appellant Robert Young was sentenced to three years on

- each of the three counts of which he was convicted; such sen-

tence to be served consecutively for a total of nine years.

aha mt Rape it ia!

Appellant Bridges was sentenced to three years on each of

the three counts of which he was convicted; such sentence to

be served consecutively for a total of nine years, pursuant to

Title 18, United States Code, §4208(a)(2).

Appellant Prince was sentenced to two years on the one

count of which she was convicted, and was granted a “split

sentence”, pursuant to Title 18, United States Code, §3651,

such that all but sixty days of her sentence was suspended.

Appellant Craft was sentenced to two years on the count of

which she was convicted, pursuant to Title 18, United States

Code, §3651, such that all but sixty days of her sentence was

suspended.

2

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Appellant Muckenstrum was sentenced to two years on each

of the two counts of which she was convicted; such sentence to

run concurrently; and she was granted split sentence treatment,

pursuant to Title 18, United States Code, $3651, such that all

but thirty days of her sentence was suspended.

Appellant Melvina Young was sentenced to two years on each

of the two counts of which she was convicted; such sentence

to run concurrently; and she was granted split sentence treat-

ment, pursuant to Title 18, United States Code, §3651, such

that all but ninety days of her sentence was suspended.

The United States Court of Appeals for the Fifth Circuit af-

firmed the convictions with regard to all defendants except

Isabel Prince, whose conviction was reversed on grounds of

insufficient evidence.

B. Summary of Trial Record

No issue is raised in this petition regarding the sufficiency of

the evidence as to the convicted defendants except insofar as

point I may be interpreted as a sufficiency question. Conse-

quently, no summary of the evidence will be made except as to

those areas relating to the issues sought to be brought before

this Court.

During his opening statement, government counsel, referring

to his principal witness, stated: “She is going to tell you the

truth. She is going to tell you how it all happened.” Upon the

defense motion for a mistrial, the Court denied the motion, but

instructed the jury to disregard the statement.

Thereafter, the Government presented the testimony of sev-

eral witnesses, then requested that the Trial Court take judicial

notice of the West Virginia Statute, Chapter 61-8-5(b) of the

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State of West Virginia Code (TR. 658). Over defendants’ ob-

jections to the constitutionality of the aforesaid statute, which

fails to define “prostitution”, the Trial Court, taking judicial

notice, concluded that the statute is constitutional in that West

Virginia would revert to the common law definition of prostitu-

tion (TR. 659-663, 739-740) and, accordingly, instructed the

jury, over objections, that prostitution, as defined by the Court,

is illegal in West Virginia.

Defendants specifically objected to various other instruc-

tions given by the Court, particularly to the instruction regard-

ing burden of proof and reasonable doubt (TR. 828-829).

C. Court of Appeals Opinion

Although petitioners raised and argued the constitutionality

of the West Virginia Statute, the Court of Appeals declined

to rule on the issue stating: “There is no need to prove a vio-

lation of the state law as an essential element of the federal

crime, and therefore the failure to define a generic term ac-

cording to the state law is not error.”

With regard to the burden of proof instruction the Appel-

late Court found the instruction “in its entirety did not shift

the burden of proof to the defendant.”

Finally, with regard to the comment by the prosecution in

opening statements, the Court cautioned that it is “dangerous

business for a prosecutor to state to the jury that the Govern-

ment vouches for the honesty of its witness, but found the

cautionary instruction given by the Trial Court was “sufficient

to avoid error in the failure to grant a mistrial.”

REASONS FOR GRANTING THE WRIT

1. The Decision Below Fails to Recognize That Where a

Specific State Statute Is Charged in a Section 1952 Indictment,

the State Law Must Be Constitutionally Sound in Order to

Support a Conviction.

Five counts of the instant indictment allege offenses under

Title 18, United States Code, § 1952, which prohibits using

interstate facilities to promote or carry on “any unlawful ac-

tivity.” These counts further specify that the “unlawful ac-

tivity” alleged was in violation of Chapter 61-8-5-(b), State of

West Virginia Code. Consequently, a violation of the West

Virginia Law was an essential element of the offense charged

under Title 18, United States Code, § 1952, in Counts I, V,

VII, and VIII of the indictment.

This factor was recognized by the Assistant United States

Attorney in requesting that the Court take judicial notice of

the West Virginia Statute. The government attorney stated:

“Mr. Ferguson: Well, the purpose being that the cases

say that the offense of prostitution must be illegal in the

states in which the girls were supposed to have traveled.

Therefore, I am asking the Court to take judicial notice

of the fact that it is illegal to commit prostitution in

West Virginia.”

ae ae te Soe ee eee

“Mr. Ferguson: I do know it is encumbent upon the

Government not to prove that prostitution actually took

place, but it is encumbent upon the government to prove

that prostitution was in violation of the laws of the State.

I am merely asking the Court to recognize the fact that

it is against the law in the State of West Virginia to com-

mit prostitution” (Tr. 659).

, ——s

2 ove wee nee bcd GF

nied

This general principle is supported in United States v. Kahn,

412 F.2d 272 (2 Cir. 1973), cert. denied 411 U.S. 982;

United States v. Cerone, 452 F.2d 274 (7th Cir. 1972), cert.

denied 405 U.S. 964.

Since it was essential to both the pleading and proof that

prostitution be illegal in the State of West Virginia, there can

be no violation of the federal law unless the West Virginia

Statute is constitutionally valid. However, the West Virginia

Statute is on its face unconstitutionally vague and indefinite.

The Statute reads as follows:

‘“.. . (b) Any person who shall engage in prostitution,

lewdness, or assignation, or who shall solicit, induce, en-

tice, or procure another to commit an act of prostitution,

lewdness or assignation; or who shall reside in, enter or re-

main in any house, place, building, hotel, tourist camp,

or other structure, or enter or remain in any vehicle,

trailer or other conveyance for the purpose of prostitution,

lewdness or assignation; or who shall aid, abet, or partici-

pate in the doing of any of the acts therein prohibited,

shall upon conviction for the first offense under this sec-

tion, be punished by imprisonment in the county jail for

a period of not less than sixty days nor more than six

moiiths, and by a fine of not less than fifty dollars and not

to exceed one hundred dollars . . .”

Nowhere within the Statute is the term “prostitution” defined,

nor have the West Virginia Courts clarified the term. More-

over, the Statute, in elaborating on the activity prohibited uses

the term “lewdness or assignation”, both of which are subject

to widely differing interpretations. Additionally, the term “pros-

titution” itself has been assigned various definitions by courts

and legislatures. For example, the Florida Statute contains the

following definition:

aay Tee

“a) The term ‘prostitution’ shall be construed to include

the giving or receiving of the body for sexual intercourse for

hire and shall be construed to include the giving or receiv-

ing of the body for licentious sexual intercourse without

hire. Florida Rev. Stat. § 796.07(a).”

At 73 C.J.S. PROSTITUTION § 1, the term is defined as fol-

lows:

“The word ‘prostitution’ is not a technical one and has

no common law meaning. It is defined as the practice of a

female offering her body to indiscriminate sexual inter-

course with men, or common lewdness of a female, as dis-

tinguished from sexual intercourse confined to one man,

harlotry or whoredome . . . it may also be defined as the

act of submitting to indiscriminate sexual intercourse which

the woman solicits whether or not she receives compensa-

tion for the act.”

In fact, several state legislatures and courts have interpreted

the offense to include indiscriminate sexual intercourse whether

or not for hire. See eg: State v. Thuna, 109 P. 331 (Wash.

1910); State v. Poague, 72 N.W. 2d 620 (Minn. 1955); State

v. Gardner, 156 N.W. 747 (Iowa, 1916); State v. Perry, 436

P. 2d 252 (Ore. 1967); People v. Webb, 25 NYS 2d 554

(1941); State v. Simpson, 50 N.W. 2d 661 (N.D. 1951); State

v. Marsh, 196 N.W. 930 (Minn. 1922); State v. Bourg, 182

So. 2d 510 (La. 1966). Texas courts have recognized an inter-

esting distinction between a “prostitute” and a “common prosti-

tute”, with only the latter being a violation of the law. See: Levy

v. State, 208 S.W. 667 (Tex. 1919), and the Minnesota Courts

have held that indiscriminate posing in the nude is punishable

under a prostitution ordinance. State v. Ray, 193 N.W. 2d 315

(Minn. 1971).

Accordingly, there is no universal judicial definition of

“prostitution”, and, absent a legislative definition, the West

crcmtes ta bi ihindin cee DAN

Virginia Statute can be made to apply to various types of sexual

conduct depending on the view of the enforcing officers.

This Court has long recognized that penal statutes containing

terms subject to varying interpretations are void as unconsti-

tutionally vague.

As the Court has stated in Lanzetta v. New Jersey, 306 US.

451, at 453:

“It is the statute, not the accusation under it, that pre-

scribes the rule to govern conduct and warns against trans-

gression. See Stromberg v. California, 283 U.S. 359, 368;

Lovell v. Griffin, 303 U.S. 444. No one may be required

at peril of life, liberty or property to speculate as to the

meaning of penal statutes. All are entitled to be informed

as to what the State commands or forbids. The applicable

rule is stated in Connally v. General Construction Co.,

269 U.S. 385, 391: ‘That the terms of a penal statute cre-

ating a new offense must be sufficiently explicit to inform

those who are subject to it what conduct on their part will

render them liable to its penalties, is a well-recognized re-

quirement, consonant alike with ordinary notions of fair

play and the settled rules of Jaw. And a statute which

either forbids or requires the doing of an act in terms so

vague that men of common intelligence must necessarily

guess at is meaning and differ as to its application, violates

7 99

the first essential of due process of law’.

The Court, in Connally v. General Construction Co., 269

U.S. 385, went on to say:

“

. . The dividing line between what is lawful and un-

lawful cannot be left to conjecture, the citizens cannot be

held to answer charges based upon penal statutes whose

mandates are so uncertain that they will reasonably admit

of different constructions.” at 393.

ae Sey

See also United States v. National Dairy Products Corp., 372

U.S. 29 (1963); United States v. Petrillo, 332 U.S. 1 (1947);

United States v. Cohen Grocery Co., 255 U.S. 81 (1921).

The deficiency in the West Virginia Statute brings into focus

the additional problem in determining what definition of prosti-

tution the grand jury sitting in Florida utilized in returning the

indictment. Apparently, under Florida law, the term included

“licentious sexual intercourse without hire.” Consequently, a

particular act may be “prostitution” in Florida, but not prostitu-

tion in West Virginia.

In attempting to remedy this difficulty, the Trial Court spe-

cifically noted the absence of a definition in the West Virginia

Statute, but sought to apply “the common law definition” despite

the fact “prostitution is not a crime at common law.” (TR. 660)

Accordingly, the Trial Court overruled defendants’ motions to

dismiss and for judgment of acquittal, and, over defendants’ ob-

jections, took judicial notice of the West Virginia Statute and

instructed the jury that prostitution is illegal in West Virginia.

However, it is submitted that such an ad hoc judicial defini-

tion can in no way remedy the constitutional defect inherent

in the Statute. The Court, therefore, should have dismissed the

indictment upon the motion duly filed by defendants, and for

the same reasons committed reversible error when over specific

objection the Court instructed the jury to the effect that, “the

State of West Virginia outlaws prostitution”, and that, “prostitu-

tion is defined as sexual intercourse for hire.”

The Court of Appeals in concluding that under United States

v. Nardello, 393 U.S. 286, it was sufficient that the acts proven

“fall within the generic term charged, failed to recognize that

the indictment did not charge interstate activities for “immoral

purposes”, but rather interstate activities for purpose of violat-

ing a specific state statute. This factor was recognized by the

government attorney when he stated:

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aa.

“Your honor, since the indictment states only the word

‘prostitution,’ I can find no argument upon which to re-

quest ‘immoral purpose’ charge.” (TR. 844)

Consequently, guidance is needed from this Court in deter-

mining whether under such an indictment the federal courts

should consider the constitutional validiiy of a state statute.

2. Guidance Is Needed From This Court in Fashioning an

Appropriate Burden of Proof—Reasonable Doubt Instruction.

Both trial and appellate courts have been floundering in their

attempts to adequately define and instruct on the burden of

proof and the meaning of reasonable doubt. See eg: Miles v.

United States, 103 U.S. 304 (1880); Dunbar v. United States,

156 U.S. 185, 199 (1895); Speiser v. Randall, 357 U.S. 513,

523, 534 (1958); Compton v. United States, 305 F 2d 119

(9th Cir. 1962); United States v. Barbera, 486 F 2d 333 (2d

Cir. 1973); United States v. Crisco, 493 F 2d 232 (8th Cir.

1974).

In the instant case the Trial Court gave the following instruc-

tion:

“The burden of proving a defendant guilty beyond a

reasonable doubt rests upon the Government. This burden

never shifts throughout the trial. The law does not require

a defendant to prove his innocence or produce any evi-

dence. He may rely upon evidence brought out on exam-

ination of witnesses for the Government. If the Govern-

ment fails to prove a defendant guilty beyond a reasonable

doubt, the jury must find him not guilty.

“A reasonable doubt means a doubt that is based on

reason and common sense. It does not mean a mere pos-

sible doubt or a speculative or imaginary or forced doubt,

2 > ck Oo tee aes ee 7 IF

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et Si

because anything related to human affairs is open to some

possible or imaginary doubt. It is the kind of doubt which

would cause a reasonable person to hesitate in making a

decision or in taking an important step in some serious

matter in his own private affairs.

“A reasonable doubt exists whenever after careful and

impartial consideration of all of the evidence in a case,

the jurors do not feel convinced to a moral certainty that

the defendant is guilty of the charge.

“So if the jury views the evidence of the case as rea-

sonably permitting either of the two conclusions, one of

innocence and the other of guilty, the jury should, of

course, adopt the conclusion of innocence.” (TR. 859-

860)

In contrast to the above instruction, petitioners requested the

burden of proof—reasonable doubt instruction recommended in

Devitt and Blackmar, Federal Jury Practice and Instructions

(1970), § 11.01 (TR. 828). This instruction reads as follows:

“The law presumes a defendant to be innocent of crime.

Thus, a defendant, although accused, begins the trial with

a ‘clean slate’-—with no evidence against him. And the law

permits nothing but legal evidence presented before the

jury to be considered in support of any charge against the

accused. So, the presumption of innocence alone is suf-

ficient to acquit a defendant, unless the jurors are satis-

fied beyond a reasonable doubt of the defendant's guilt

after careful and impartial consideration of all the evidence

in the case.

“It is not required that the government prove guilt be-

yond all possible doubt. The test is one of reasonable

doubt. A reasonable doubt is a doubt based upon reasons

and common sense—the kind of doubt that would make a

PA NOR BI, aN

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reasonable person hesitate to act. Proof beyond a reason-

able doubt must, therefore, be proof of such a convincing

character that you would be willing to rely upon it un-

hesitatingly in the most important of your own affairs.

“The jury will remember that a defendant is never to be

convicted on mere suspicion or conjecture.

“The burden is always upon the prosecution to prove

guilt beyond a reasonable doubt. This burden never shifts

to a defendant, for the law never imposes upon a defendant

in a criminal case, the burden or duty of calling any wit-

ness or producing any evidence.

“A reasonable doubt exists whenever, after careful and

impartial consideration of all the evidence in the case, the

jurors do not feel convinced to a moral certainty that a

defendant is guilty of the charge. So, if the jury views the

evidence in the case as reasonably permitting either of the

two conclusions—one of innocence, the other of guilty—

the jury should, of course, adopt the conclusions of in-

nocence.”

Comparing the two instructions set out above, it is apparent

that the Devitt & Blackmar instruction emphasizes the principle

that the government has the burden of proof, that the defendant

need not prove anything, and defines proof beyond a reasonable

doubt in terms of proof sufficient to cause the jury to act “un-

hesitatingly in the most important of your own affairs.” On the

other hand, the Trial Court’s instruction tends to place at least

a minimal burden on the defendant by stating:

“The law does not require a defendant to prove his in-

nocence or to produce any evidence. He may rely on evi-

dence brought out on examination of witnesses for the

Government.” (Emphasis supplied )

Of course, it is well established that the defendant need not

“rely” on any evidence and to say that he may rely on evidence

a

brought out on cross-examination implies that there must be

some evidence (whether “produced” by the government or de-

fendant) upon which defendant bases his case.

In view of the confusion which exists as to an appropriate

Burden of Proof-Reasonable Doubt Instruction, it is submitted

that this Court should address itself to the problem and enunci-

ate guidelines to be followed by the lower courts.

3. This Court Should Provide Criteria for Determining the

Extent of Permissible Comment by a Prosecutor on the Credi-

bility of Government Witnesses.

The purpose of an opening statement is to give broad out-

lines of the case to enable the jury to comprehend it; it is not

to poison the jury’s mind against the defendant and it is not to

recite items of highly questionable evidence. Government of

Virgin Islands v. Turner, 409 F. 2d 102 (3 Cir. 1969).

In the instant case, the government during opening statement

commented to the jury as follows:

“Count III charges Robert Young with persuading and

inducing a woman by the name of Sally Burns to travel to

Wheeling, West Virginia. You will hear Sally Burns tes-

tify this morning. She will be our first witness. She is

going to tell you the truth. She is going to tell you how

it all happened.” (Emphasis supplied) (TR. 115)

Thereafter, defendants objected to these remarks and moved

that a mistrial be declared (TR. 117). The Trial Court, deny-

ing defendants’ motion for a mistrial, instructed the jury to dis-

regard the comments of the prosecutor. (TR. 118)

In Gradsky v. United States, 373 F 2d 706, 709-710 (5 Cir.

1967). the Appellate Court was faced with an analogous situ-

pe

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aan ee

ation when an Assistant United States Attorney made similar

remarks to the jury. Reversing the conviction, the Court stated:

“Here it is impossible to construe the language used by

the prosecuting attorney in any way other than saying

that the government had run a check on these two wit-

nesses and had concluded on the basis of such check, ob-

viously out of the ken of the jury, that they were speaking

the truth . . . [IJn two places the attorney's statements

represented to the Jury that the government's belief in the

credibility of the witness was based on something other

than the evidence of record. He first said that, ‘The gov-

ernment representatives don’t put a witness on the stand

unless there appears to be some credibility until he ap-

pears to be a truthful witness’. This could not, appear be-

fore the government puts a witness on the stand, unless

there had been some kind of check run on the witness

prior to his being used. Thus, it is self-evident that the gov-

ernment’s vouching of the witness was based on something

‘other than the testimony of those witnesses before the jury.’

“This statement by the Assistant United States Attorney

was error; it was highly prejudicial; and may have con-

tributed substantially to the verdicts of the jury which are

on appeal here. The statement, therefore, makes it neces-

sary that the judgment of conviction and sentences be re-

versed.” Gradsky, supra, at 710.

In Dunn v. United States, 407 F 2d 833, 885-886 (5 Cir.

1962), the United States Attorney made several improper re-

marks to the jury during his opening statement. Finding the

prosecutor's remarks prejudicial and affecting the substantial

rights of the defendant, the Court stated:

“In the instant case, ‘zeal outran fairness’ in our judg-

ment. At the outset, the jury was told that the prosecu-

tor’s opinion in the case was the most flagrant he had ever

tried and was replete with fraud. At this point, it would

a

have been relatively simple for the Court to have dis-

charged the jury who heard the prejudicial remarks and

impaneled another one. It is improper for counsel to ex-

press his personal opinion or to state facts of his own

knowledge, not in evidence, and not part of the evidence

to be presented; or to make unwarranted inferences or in-

sinuations calculated to prejudice the defendant. Talia-

ferro v, United States, 47 F, 2d 699 (9 Cir. 1931).

“The fact that the Court told the jury to ‘disabuse your

minds of that statement’ cannot remove the prejudice. This

Court reversed a conviction for improper argument, in

Ginsberg v. United States, 257 F 2d 950 (5 Cir. 1958),

where there was no objection to the argument and no cor-

rective charge given. The Court stated:

“We hold this statement of the prosecuting attorney con-

stituted ‘plain error * * * affecting substantial rights’ un-

der Rule 52(b) 18 U.S.C.A., governing criminal proce-

dure. It was such an error, also, as would have been

magnified in its influence on the jury by an objection and

motion for mistrial.”

See also, McMillian v. United States, 363 F. 2d 165 (5 Cir.

1966); United States v. Senano, 496 F. 2d 81 (5 Cir. 1974).

Petitioners submit that the prosecutor’s remarks within the

instant case were improper, prejudicial and affected their sub-

stantial rights to a fair trial. As a result, this prejudice could

not have been cured by an instruction from the Trial Court

telling the jury to disregard the comments. The statement, “she

is going to tell you the truth”, is nothing more than a personal

opinion of an attorney which has no place—before a jury dur-

ing Opening statement or any time. In view of the fact that this

comment occurred during opening statement, it would have been

a relatively simple matter to discharge the jury who heard the

prejudicial comments and select another. Instead, the Trial

ey eee case at |

We 28 ties! Stee orate ue.

— ee

Court chose simply to instruct the jury to disregard the con

ments.

The obvious disconcern of the Trial Court points up tl

need for a clear-cut statement by this Court regarding the pri

cedure to be followed in remedying such a situation.

CONCLUSION

For the foregoing reasons, a Writ of Certiorari should issi

to review the judgment and opinion of the Court of Appeals.

Respectfully submitted

LONDON & GREENBERG

418 Olive Street—Suite 404

St. Louis, Missouri 63102

(314) 231-8700

Attorneys for Petitioner:

ee Ly ag ee

APPENDIX

en

UNITED STATES v. PRINCE

UNITED STATES of America,

Plaintiff-Appellee,

v.

Isobel PRINCE, Judy Craft, a/k/a

Sandy Woods, Robert Samuel Young,

a/k/a Robert Jensen, Melvina Young,

a/k/a Tammy Young, Amos Lane

Bridges, a/k/a Sonny Bridges, Kath-

leen Maude Muckenstrum, a/k/a Kim

Baker, Liz Wilson, and Colleen Burns,

a/k/a Rebecca Williams, Becky, Mit-

zie, Defendants-Appellants.

No. 74-3463.

United States Court of Appeals,

Fifth Circuit.

July 3, 1975.

Defendants were convicted in the

United States District Court for the

Southern District of Florida at Miami, C.

Clyde Atkins, J., for conspiracy to en-

gage in interstate prostitution activities,

and certain defendants were convicted of

substantive offenses, and they appealed.

The Court of Appeals, Bell, Circuit

Judge, held that prosecutor’s remarks in

opening statement that Government's

first witness would tell the truth did not

create impression that there was other

evidence, unknown or unavailable to the

jury, on which the prosecutor relied;

that there was no need to prove a viola-

tion of state law as an essential element

of interstate travel or transportation in

aid of racketeering enterprises and it

was unnecessary to decide constitutional-

ity of West Virginia statute prohibiting

prostitution; that instruction that de-

fendant may rely upon evidence brought

out on examination of witnesses for the

Government did not, taken in context,

shift burden of proof to defendants;

_ A> ae ————

that a defendant's conviction in another

case for conspiracy to engage in inter-

state prostitution activities involving

South Carolina operation and numerous

parties not associated with West Virgin-

ia operation did not bar prosecution

based on the West Virginia operation on

theory of double jeopardy; and that evi-

dence that a defendant had worked in

house of prostitution and caught money

as it was thrown down the stairs by

prostitutes after they had collected from

customers was insufficient to connect de-

fendant to conspiracy.

Affirmed as to six defendants, re-

versed as to one defendant.

1. Criminal Law ¢=720(5)

Prosecutor’s remarks in opening

statement that Government's first wit-

ness was going to tell the truth did not

create impression that there was other

evidence, unknown or unavailable to the

jury, on which the prosecutor relied.

2. Threats e8

There is no need to prove a violation

of state law as an essential element of

interstate travel or transportation in aid

of racketeering enterprises, and there-

fore the failure to define a generic term

according to state law is not error. 18

US.C.A. § 1952.

3. Prostitution e=5

Lack of definition of “prostitution”

within West Virginia statute prohibiting

same did not vitiate convictions for con-

spiracy to engage in interstate prostitu-

tion activities in violation of statute pro-

hibiting interstate travel or transporta-

tion in aid of racketeering enterprises

inasmuch as term “prostitution” is a ge-

neric term and the trial court sufficient-

ly described the offense as “sexual inter-

course for hire.” 18 U.S.C.A. § 1952;

Code W.Va., 61-8-5(b).

itil SRR te a i BSD AN Ae ILRI EEE LGN AE WEED SANS: SC

| Rint Ais?

ety Seo

6233 UNITED STATES v. PRINCE

4. Prostitution 4

Evidence in prosecution for engag-

ing in interstate prostitution activities in

violation of statute prohibiting interstate

travel or transportation in aid of racket-

eering enterprises was sufficient to sus-

tain verdict that prostitution was com-

mitted. 18 U.S.C.A. § 1952; Code

W.Va., 61-8-5(b).

5. Criminal Law @=778(5)

Instruction that a defendant may

rely on evidence brought out on exami-

nation of witnesses for the Government

did not shift burden of proof to defend-

ant.

6. Criminal Law @822(11)

Reviewing court is required to con-

sider a jury instruction in its entirety

and even if a portion of the charge,

standing alone, would appear to shift the

burden of proof to the defendant, there

is no error if the jury is sufficiently in-

formed where the burden lies.

7. Criminal Law @=789(2)

Record on appeal from convictions in

connection with interstate prostitution

activities disclosed no error in instruction

on reasonable doubt. 18 U-S.C.A.

§§ 1952, 2422.

& Criminal Law ¢=202(1)

Fact that defendant had been con-

victed of conspiracy to engage in inter-

state prostitution by reason of activities

in South Carolina operation did not bar,

on double jeopardy principles, prosecu-

tion for similar conspiracy involving

West Virginia operation where there

were numerous parties associated only

with the South Carolina operation or the

West Virginia operation but not with

both and there was no evidence that ei-

ther of the ventures depended for its

success on the other. 18 U.S.C.A.

§ 1952; Code W.Va., 61-8-K(b).

9. Conspiracy *=47(1)

Once a conspiracy is shown to exist,

slight evidence is all that is required to

connect a particular defendant with the

conspiracy.

10. Conspiracy @=47(1)

To connect a particular defendant

with a conspiracy, the proof must be in-

dividual and personal and Government

must prove beyond a reasonable doubt

that each member of the conspiracy had

the deliberate, knowing, and specific in-

tent to join the conspiracy; mere associ-

ation with conspirators or knowledge of

the illegal activity is not sufficient.

11. Conspiracy @=47(3)

Evidence that defendant had a job

in house of prostitution and on occasion

caught money as it was thrown down

the stairs by prostitutes after they had

collected from customers was insufficient

to bind defendant to conspiracy to en-

gage in interstate prostitution activities.

18 U.S.C.A. § 1952; Code W.Va., 61-8-

5b).

Appeals from the United States Dis-

trict Court, Southern District of Florida.

Before BELL, DYER and SIMPSON,

Circuit Judges.

BELL, Circuit Judge:

This is an appeal by defendants Robert

Young, Amos Lane Bridges, Melvina

Young, Kathleen Maude Muckenstrum,

Judy Craft, Colleen Burns, and Isobel

Prince from convictions on one count of

conspiracy to engage in interstate prosti-

tution activities in violation of Title 18,

U.S.C.A. § 1952, and by defendants Rob-

ert Young, Amos Lane Bridges, and Mel-

vina Young from convictions on one

count of inducing a woman to engage in

ay ee

UNITED STATES v. PRINCE

interstate prostitution activities in viola-

tion of Title 18, U.S.C.A. § 2422. In

addition, Robert Young, Bridges, and

Muckenstrum appeal from convictions on

one count of engaging in interstate pros-

titution activities in violation of Title 18,

U.S.C.A. § 1952. Defendants assert nu-

merous errors in the proceedings of the

district court; some assignments are as-

signed collectively, some individually.

We find no error in those collective as-

signments or in Muckenstrum’s claim of

double jeopardy. We reverse as to ap-

peliant Prince.

Appellants first complain that a mis-

trial should have been declared due to

certain remarks made by government

counsel. During the opening statement,

Counsel stated:

you will hear Sally Burns

testify this morning. She will be our

first witness. She is going to tell you

the truth. She is going to tell you

how it all happened A

An objection was made to these remarks

and it was moved that a mistrial be de-

clared. The motion was denied and the

jury was instructed to disregard the

comments of the prosecutor.

{1] This court has cautioned that it is

“dangerous business” for a prosecutor to

state to the jury that the United States

government vouches for the honesty or

veracity of its witnesses. Gradsky v.

United States, 5 Cir., 1967, 373 F.2d 706,

710; McMillian v. United States, 5 Cir.,

1966, 363 F.2d 165. The test as to

whether the prosecutor has expressed an

improper opinion is “whether the prose-

cutor’s expression might reasonably lead

the jury to believe that there is other

evidence, unknown or unavailable to the

jury, on which the prosecutor” relied.

363 F.2d 169 (Emphasis supplied). The

remarks in the present case do not cre-

POOR CCPY

ate such an impression. The cautionary

instruction given by the court was suffi-

cient to avoid error in the failure to

grant a mistrial.

Appellants next attack the statute un-

der which they were prosecuted. They

argue that to be in violation of 18 US.

C.A. § 1952 they must be found to be in

violation of 61-8-S(b), West Virginia

Code. That statute prohibits “prostitu-

tion or procur{ing] another to

commit an act of prostitution.” It is

submitted that because the term “prosti-

tution” is not defined within the statute,

that it is unconstitutionally void.

[24] This court has recently held,

however, that in § 1952 cases state law

“merely serves a definitional purpose.”

United States v. Conway, 5 Cir., 1975,

507 F.2d 1047, 1051. There is no need to

prove a violation of the state law as an

essential element of the federal crime

and therefore the failure to define a ge-

neric term according to state law is not

error. id. In Conway, we looked to

United States v. Nardello, 1969, 393 U.S.

286, 89 S.Ct. 584, 21 L.Ed.2d 487, where

the Supreme Court held that prosecu-

tions under § 1952 were not restricted to

state labels, but that it is sufficient for

the acts to fall within the “generic term”

charged. We need not concern our-

selves, then, with the lack of a definition

of “prostitution” within the West Virgin-

ia statute. That term is also a gencric

term and the definition of the trial court

“sexual intercourse for hire” sufficiently

described the offense. It is therefore

unnecessary for us to decide the consti-

tutionality vel non of the statute. We

further find that there was sufficient

evidence presented to sustain a verdict

that prostitution was committed.

{5} A third assignment of error looks

to the jury instructions on burden of

sick Ml ili

proof and on reasonable doubt.' Appel-

lants point to one sentence of the charge

as possibly shifting the burden of proof

impermissibly from the government to

them. They also object to the overall

tone of the charge as being too strict

upon the defendants. We also find no

error in those contentions. The sentence

complained of, that “he [the defendant]

may rely upon evidence brought out on

examination of witnesses for the govern-

ment” is somewhat ambiguous but, tak-

en in context, it does not shift the bur-

den of proof to defendants.

(6,7] We are required to consider a

jury instruction in its entirety. Even if

a portion of the charge, standing alone,

would appear to shift the burden of

proof to the defendant, there is no error

if the jury is sufficiently informed where

the burden lies. Todd v. Stynchcombe, 5

Cir., 1978, 486 F.2d 1030, 1081. In the

charge before us, the jury was told re-

peatedly that the burden rested on the

government, and the government alone,

and that the burden never shifted

throughout the trial. Likewise, we find

no error in the instruction on reasonable

doubt.

[8] Appellant Muckenstrum individu-

ally argues that her prosecution in this

case was barred by principles of double

jeopardy. She was indicted and convict-

ed in United States v. Muckenstrum, 5

1. The jury instructions in question are as fol-

lows:

The burden of proving a defendant guilty

beyond a reasonable doubt rests upon the

Government. This burden never shifts

throughout the trial. The law does not re-

quire a defendant to prove his innocence or

produce any evidence. He may rely upon

evidence brought out on examination of wit-

nesses for the Government. If the Govern-

ment fails to prove a defendant guilty be-

yond a reasonable doubt, the jury must find

him not guilty.

UNITED STATES v. PRINCE

Cir., 1975, —— F.2d ——, also decided this

day. That case also charged a conspir-

acy to engage in interstate prostitution

activities in violation of 18 U.S.C.A.

§ 1952. Muckenstrum contends that the

two conspiracies were really one continu-

ing conspiracy and points to similarity of

parties, witnesses, dates and acts for

support. The only difference, according

to her theory, is the point of travel:

South Carolina in one instance, West

Virginia in the other. While Mucken-

strum and James Reed were common

to both cases,? there were numerous oth-

er parties who were associated only with

the South Carolina operation or the West

Virginia operation but not with both.

There is no evidence that the South Car-

olina conspiracy depended in any way on

the West Virginia venture for its success

or vice versa, or that they were a part of

one operation. Although the two con-

spiracies were similar in nature, it is

clear that they were not sufficiently re-

lated to establish one conspiracy. Thus

jeopardy did not attach to Muckenstrum

in the first proceeding such that the

second was barred. See Dryden v. Unit-

ed States, 5 Cir., 1968, 403 F.2d 1008,

1009.

(9,1@} Appellant Isobel Prince chal-

lenges her conviction on the grounds

that there was insufficient evidence to

bind her to the conspiracy. This circuit

A reasonable doubt means a doubt that is

based on reason and common sense. It does

not mean a mere possible doubt or a specu-

lative or imaginary or forced doubt, because

anything related to human affairs is open to

some possible or imaginary doubt. It is the

kind of doutt which would cause a reasona-

ble person to hesitate in making a decision

or in taking an important step in some seri-

ous matter in his own private affairs.

2. The jury could not reach a decision as to

Reed and he was dismissed with prejudice.

nie ee aa

UNITED STATES v. PRINCE

has long adhered to the rule that once a

conspiracy is shown to exist, slight evi-

dence is all that is required to connect a

particular defendant with the conspiracy.

United States v. Reynolds, 5 Cir., 1975,

511 F.2d 603, 607; United States v. War-

ner, 5 Cir., 1971, 441 F.2d 821, 830; Lo-

pez v. United States, 5 Cir., 1969, 414

F.2d 909, 911. The proof, however, must

be individual and personal and the

government must prove beyond a reason-

able doubt that each member of the con-

spiracy had the deliberate, knowing, and

specific intent to join the conspiracy.

Mere association with conspirators or

knowledge of the illegal activity is not

sufficient. United States v. Falcone,

1940, 311 U.S. 205, 210-11, 61 S.Ct. 204,

85 L.Ed. 128; United States v. Miller, 5

Cir., 1974, 500 F.2d 751, 764; United

States v. Morado, 5 Cir., 1972, 452 F.2d

167, 175; Roberts v. United States, 5

Cir., 1969, 416 F.2d 1216, 1220; Causey v.

United States, 5 Cir., 1965, 352 F.2d 208,

206. Here the only evidence relating to

POOR CCPY

Prince is that she had a job in the house

of prostitution in Wheeling, West Vir-

ginia and that on occasion she caught

money as it was thrown down the stairs

by prostitutes after they had collected

from customers. She was not connected

to management other than by her pres-

ence and by catching the money. There

was no evidence that she knew of the

conspiracy charged or that she waz in

any way associated with the interstate

aspect of the prostitution endeavor.

{11} Viewing the evidence in the

light most favorable to the government

as we are required to do, we neverthe-

less conclude that there was not suffi-

cient evidence presented as to Prince and

her conviction is reversed.

We find no merit in the hearsay evi-

dence contention.

Affirmed as to appellants Robert

Young, Bridges, Melvina Young, Muck-

enstrum, Craft, and Burns.

Reversed as to appellant Isobel Prince.