Petition for Writ of Certiorari — Oriolo v. United States

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i CHARLES ELMORE OROPLEY

® CLERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1944

No. 727

CHARLES C. ORIOLO,

Petitioner,

vs.

THE UNITED STATES OF AMERICA

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE THIRD CIRCUIT AND BRIEF IN SUP-

PORT THEREOF

* Tuomas D. McBripe,

Louis F. McCasg,

Counsel for Petitioner.

INDEX

Sussect INDEx

a)

S

a

Petition for writ of certioari......................

Summary statement of the matter involved. ....

Statement of the jurisdiction of this Court.....

ey ee eee

Reasons relied on for allowance of the writ.....

a eh eae Fe

Brief in support of petition.......................

Opinions of courts below.....................

ey SUS

ieee weesceuveses

I os dae ca svety eve yates

ae ee

afer 1

RK DOONNN AOR wee

Case Crrep

Mortensen v. United States, 322 U.S. 369........... 4,8

Statutes CITED

Act of June 25, 1910, Sec. 306................--... 3

BEE SEES ee 3,7

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1944

No. 727

CHARLES ©. ORIOLO,

vs,

THE UNITED STATES OF AMERICA

Petitioner,

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE THIRD CIRCUIT AND BRIEF IN SUP-

PORT THEREOF

To the Honorable the Chief Justice and the Associate

Justices of the Supreme Court of the United States:

Your petitioner, Charles C. Oriolo, in support of his

petition for writ of certiorari to review the final judgment

of the United States Circuit Court of Appeals for the Third

Circuit, entered November 6, 1944, confirming his conviction

for violation of the White Slave Traffic Act, on April 12,

1943, respectfully shows:

A

Summary Statement of the Matter Involved

Defendant was indicted November 16, 1942, for violation

of the White Slave Traffic Act, commonly called the Mann

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Act, being the Act of June 25, 1910; the applicable portions

follow:

‘*398: Any person who shall knowingly transport

or cause to be transported, or aid or assist in obtain-

ing transportation for, or in transporting in interstate

commerce * * * any woman or girl for the purpose

of prostitution or debauchery, or for any other immoral

purpose, or with the intent and purpose to induce,

entice, or compel such woman or girl to become a pros-

titute or to give herself up to debauchery, or to engage

in any other immoral practice; * * * shall be deemed

guilty of a felony.”’

‘*399: Any person who shall knowingly persuade, in-

duce, entice or coerce * * * any woman or girl to

go from one place to another in interstate or foreign

commerce, * * * for the purpose of prostitution or

debauchery, or for any other immoral purpose, or with

the intent and purpose on the part of such person

that such woman or girl shall engage in the practice

of prostitution or debauchery, or any other immoral

practice, whether with or without her consent, and

who shall thereby knowingly cause or aid or assist

in causing such woman or girl to go and to be carried

or transported as a passenger upon the line or route

of any common carrier in interstate commerce * * *

shall be deemed guilty of a felony.”’

The alleged transportation in Interstate Commerce

which took place July 20, 1942, consisted of a trip by rail-

road train from Atlantic City in the State of New Jersey

to Philadelphia, in the State of Pennsylvania.

The facts, as agreed upon in the Statement filed in lieu

of testimony, were that the defendant and one Elizabeth

George, who testified on behalf of the Government, met in

Philadelphia and that, after some preliminaries, defendant

took the woman to the Clinton Hotel in Philadelphia, where

he registered with her as man and wife under the name of

De Marco on July 6, 1942. The woman worked for defend-

3

ant as a prostitute. On July 19, 1942, the couple undertook

an automobile journey to Atlantic City for a day’s outing.

There they were arrested, and their automobile was held

by the authorities. The couple took the train back to Phil-

adelphia on July 20, 1942, and within about fifteen min-

utes from the time the return journey on the train com-

menced, and while the train was still in the State of New

Jersey, defendant informed the woman that she would have

to resume the business of prostitution in Philadelphia to

enable him to pay the $500.00 fine that had been imposed

in Atlantic City. Upon their arrival into Philadelphia, the

woman worked for the defendant as a prostitute and turned

over her earnings to him.

At the conclusion of the government’s case, defendant

entered a demurrer which was overruled, and on April

12, 1943, defendant was sentenced to undergo imprisonment

for a term of three years. Defendant has been at liberty

pending determination of his appeal to the Cireuit Court

of Appeals for the Third Cireuit in the sum of $5,000.00.

The Circuit Court of Appeals, October Term, 1943, No.

8514, sustained the conviction, Biggs, Cireuit Judge, dis-

senting. ;

B

Statement of the J urisdiction of This Court

1. Statutory Provision Believed to Sustain the Jurisdic-

tion.

The jurisdiction of this Court is invoked under section

240 (a) of the Judicial Code, as amended by the act of

February 13, 1925, e. 229, Par. 1, 43 Stat. 938 [U. S. C. A.

Title 28, Par. 347, (a)] and under the same act, ch. 229, Par.

8, 24 Stat. 940 (U. S.C. A., Title 28, Par. 350).

2. The Date of the Judgment to be Reviewed.

The judgment of the Cireuit Court of Appeals for the

Third Circuit, affirming the conviction of petitioner, was

2n

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entered on November 6, 1944. This petition, with support-

ing brief, and the certified record, are filed within thirty

days next after final judgment.

3. Statement of the nature of the cave and the rulings

of the Cireuit Court of Appeals Bringing the Case within

the Jurisdiction of this Court.

The nature of the case, conviction under the White Slave

Traffic Act, has been heretofore stated.

The Cireuit Court of Appeals ruled that although the

facts are ‘‘almost strikingly similar’’ to the facts in the

ease of Mortensen v. United States, 322 U.S. 369, the in-

stant case could be distinguished. That this ruling of the

Cireuit Court of Appeals is in conflict with the decision of

this Court in Mortensen v. United States is discussed more

fully hereafter in connection with petitioner’s reasons for

the allowance of the writ of certiorari, and in Petitioner’s

Brief in support of this petition.

4. Cases believed to sustain the jurisdiction of this Court.

Mortensen v. United States, 322 U. S. 369.

C

The Question Presented

1. Did the remark of petitioner, made to the woman in-

volved, after the commencement of the return trip of a

projected innocent vacation trip from Philadelphia, Penn-

sylvania, for a day’s outing in Atlantic City, New Jersey,

and back to Philadelphia, that the woman should go back

to work us a prostitute at the hotel, and should earn money

for petitioner to pay a fine which had been imposed upon

him in Atlantic City, show that a change had occurred in

the purpose of the trip to Philadelphia which distinguished

it from being merely the return of the vacation trip, the

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words having been spoken while the parties were yet in

the State of New Jersey?

2, Should the conviction below be reversed, and petitioner

be discharged?

D

Reasons Relied On for Allowance of the Writ.

1. In ruling that the actions of petitioner constituted a

violation of the White Slave Traffic Act, the Cireuit Court

of Appeals for the Third Cireuit decided a federal question

in a way probably in conflict with applicable decisions of

this Court; in particular, the decision in Mertensen v.

United States, 322 U.S. 369.

2. The matter is of the gravest importance, defendant

having been sentenced to undergo imprisonment for a term

of three years.

Wherefore your petitioner prays that a Writ of Certio-

rari issue under the seal of this Court directed to the Cir-

euit Court of Appeals for the Third Circuit, commanding

said Court to certify and send to this Court a full and com-

plete transcript of the record and of the proceedings of the

said Cireuit Court had in the case numbered and entitled

on its docket No. 8514, October Term, 1943, United States

of America, Appellee, vy. Charles C. Oriolo, alias Charles

Martini, alias John Martin, Appellant, to the end that this

cause may be reviewed and determined by this Court as

provided for by the Statutes of the United States, and that

the judgment herein of the said Circuit Court may be re-

versed by this Court, and for such further relief as to this

Court may seem proper.

Respectfully submitted,

Tuomas D. McBriprg,

Louis F. McCase

Attorneys for Petitioner.

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1944

No. 727

CHARLES C. ORIOLO,

Petitioner,

vs.

THE UNITED STATES OF AMERICA

BRIEF IN SUPPORT OF PETITION FOR WRIT OF

CERTIORARI

I

Opinions of Courts Below

The Opinion of the District Court of the United States for

the Eastern District of Pennsylvania, Kalodner, J., is re-

ported at 49 Fed. Supp. 226.

The Opinion of the Circuit Court of Appeals for the Third

Circuit has not yet been reported. A copy thereof appears

in the Record.

Jurisdiction

The Jurisdiction of this Court is invoked under Section

240 (a) of the Judicial Code, as amended by the Act of

February 13, 1925, Section 347, Title 28, U. S. C. A.

Statement of the Case

A complete statement of the case having been made in the

Petition for Writ of Certiorari, it would serve no useful

purpose to restate the case here.

Specifications of Error

1. The Circuit Court of Appeals for the Third Circuit

erred in holding that the act of petitioner in transport-

ing from Philadelphia, Pennsylvania, to Atlantic City,

New Jersey, and back to Philadelphia, a prostitute who had

been working for petitioner in Philadelphia, and who re-

sumed her work there after her return, constituted a viola-

tion of the White Slave Traffic Act, as to the return trip

alone.

Argument

It is contended that there are no facts in this case which

distinguish it from Mortensen v. United States, 322 U. 8S.

369.

It is conceded in the majority opinion of the Cireuit Court

that the petitioner set out with the woman involved from

Philadelphia, Pennsylvania, to Atlantic City, New Jersey,

for an innocent day’s outing. There was no breaking off

of her occupation as prostitute. Had the planned trip been

completed on the same evening, the case would admittedly

have fallen within the decision of the Mortensen case, in

which Mr. Justice Murphy said:

‘‘It may be assumed that petitioners anticipated

that the two girls would resume their activities as

prostitutes upon their return to Grand Island. But we

do not think it is fair or permissible under the evidence

adduced to infer that this interstate vacation trip, or

any part of it, was undertaken by petitioners for the

purpose of, or as a means of effecting or facilitating,

such activities. The sole purpose of the journey from

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beginning to end was to provide innocent recreation

and a holiday for petitioners and the two girls. It was

a complete break or interlude in the operation of peti-

tioners’ house of ill fame and was entirely disassoci-

ated therefrom. There was no evidence that any im-

moral acts occurred on the journey or that petitioners

forced the girls against their will to return to Grand

Island for immoral purposes. * * *

* * * The return journey under the circum-

stances of this case cannot be considered apart from

its integral relation with the innocent round trip as

a whole. There is no evidence of any change in the

purpose of the trip during its course. If innocent when

it began it remained so until it ended. Guilt or inno-

cence does not turn merely on the direction of travel

during part of a trip not undertaken for immoral ends.

If the return journey was illegal, so was the outgoing

one since all intended, from the beginning, to end the

journey where it began, at Grand Island. The outward

leg of the trip was interstate transportation. Yet it

was not charged, and could not well be, that proof of

this part of the trip was a violation of the Act. It

differed in no respect from the other part, except in the

direction of travel. That is not enough to make the

first part innocent, the last part illegal. Criminal

intent and purpose must be grounded on something

less ingenious than that which is necessary to sustain

a finding of such a purpose in making the return inter-

state journey to Grand Island.’’

In distinguishing the Mortensen case, the Circuit Court

said: ‘*There is one significant fact which, in our opinion,

distinguishes the present case from the Mortensen case

and presents evidence sufficient to sustain the conviction.

That evidence consists in the fact that defendant was ar-

rested and fined in New Jersey and HIS STATEMENT

TO THE WOMAN THAT SHE WOULD HAVE TO RE-

TURN TO PHILADELPHIA AND RESUME THE BUSI-

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NESS OF PROSTITUTION TO ENABLE HIM TO PAY

HIS FINE.”’ (Emphasis supplied.)

The court was in error in its statement of the facts.

The court added the words TO PHILADELPHIA. This

phrase did not appear in the testimony nor in the agreed

statement of facts. Judge Biggs, dissenting, appends in a

footnote, the testimony in question, ‘‘* * * we were

in Atlantic City on the train about fifteen minutes and he

(the defendant) said he needed * * * money to come

back and get hiscar. * * * Hetold me I should go back

to work as a prostitute in the * * * Hotel, and I

should earn the money for him so he could go back and pay

his fine to get his car.’’

The majority opinion entirely overlooks the vital point

that the return trip was already well under way when this

remark was made. The woman had been arrested with

petitioner (not, it should be noted, for any actions in con-

nection with her profession, but simply because she was

with petitioner who was persona non grata to the police

authorities of Atlantic City): obviously she knew of the

need for money. ‘The remark of petitioner related not at

all to any plirpose or change of purpose in the return

trip, but rather to the desirability or need of recovering

the car. Petitioner did not, as the majority mistakenly

declared, say she should return to Philadelphia, which would

indeed have been a slender thread on which to hang an

opinion, but would at least have related to the interstate

feature of the trip. His statement referred only to the

hotel. It did not mention Philadelphia, or make any refer-

ence to the return to Philadelphia. The precise words are

appended to the disenting opinion in a footnote. The

purpose of the return to Philadelphia had never varied. The

need for money for a fine may possibly have added some

basis for concern, but it did not even hasten the return

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to Philadelphia, which had been planned for the same day

as the trip to Atlantic City.

The majority opinion says: ‘‘In the case at bar there was

evidence of a change of purpose of the trip during its

course. The seizure of defendant’s automobile and the fine

imposed upon him supply the motive for the formation of

a new intent on his part in transporting the woman to

Pennsylvania, and his statement to her as to this intent was

sufficient to demonstrate that a change had occurred in the

purpose of the trip to Philadelphia which distinguished

it from being merely the return of the vacation trip.”’

It is submitted that this is simply torturing the ordinary

meaning of words for the purpose of preventing an undesir-

able person from going unpunished. There is not any evi-

dence of change of purpose to meet the burden of overcom-

ing the presumption of innocence, and proving petitioner’s

guilt beyond a reasonable doubt.

The dissenting opinion of Circuit Judge Biggs correctly

characterizes the alleged evidence relied upon by the ma-

jority: ‘‘If there be evidence of a change in the purpose

the change is too trivial to support the defendant’s convic-

tion in the light of Mortensen v. United States, 322 U. 8.

369.’

Conclusion

We urge that for the reasons stated herein, the Writ of

Certiorari should be granted.

Respectfully submitted,

Tomas D. McBripz,

Louis F. McCasg,

Attorneys for Petitioner.

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