Opinion — Gebardi v. United States

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SUPREME COURT OF THE UNITED STATES.

No. 97.—Octoser Term, 1932.

On Writ of Certiorari

to the United States

Cireuit Court of Ap-

vs.

The United States of America. peals for the Seventh

Circuit.

Jack Gebardi and Louise Rolfe Gebardi,

Petitioners,

[November 7, 1932.]

Mr. Justice Stone delivered the opinion of the Court.

This case is here on certiorari, 286 U. 8. 539, to review a judg-

ment of conviction for conspiracy to violate the Mann Act (36

Stat. 825; 18 U. S. C., § 397 et seq.). Petitioners, a man and a

woman, not then husband and wife, were indicted in the District

Court for Northern Illinois, for conspiring together, and with others

not named, to transport the woman from one state to another for

the purpose of engaging in sexual intercourse with the man. At

the trial without a jury there was evidence from which the court

could have found that the petitioners had engaged in illicit sexual

relations in the course of each of the journeys alleged; that the

man purchased the railway tickets for both petitioners for at least

one journey, and that in each instance the woman, in advance of

the purchase of the tickets, consented to go on the journey and

did go on it voluntarily for the specified immoral purpose. There

was no evidence supporting the allegation that any other person

had conspired. The trial court overruled motions for a finding

for the defendants, and in arrest of judgment, and gave judg-

ment of conviction, which the Court of Appeals for the Seventh

Circuit affirmed, 57 F. (2d) 617, on the authority of United States

v. Holte, 236 U. S. 140.

The only question which we need consider here is whether,

within the principles announced in that case, the evidence was

sufficient to support the conviction. There the defendants, a man

and a woman, were indicted for conspiring together that the man

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2 Gebardi et al. vs. United States.

should transport the woman from one state to another for pur-

poses of prostitution. In holding the indictment sufficient, the

Court said (p. 144):

“As the defendant is the woman, the District Court sustained

a demurrer on the ground that although the offence could not be

committed without her she was no party to it but only the victim.

The single question is whether that ruling is right. We do not

have to consider what would be necessary to constitute the sub-

stantive crime under the act of 1910 [the Mann Act], or what

evidence would be required to convict a woman under an indict-

ment like this, but only to decide whether it is impossible for the

—— woman to be guilty of a crime in conspiring as al-

eg

The Court assumed that there might be a degree of cooperation

which would fall short of the commission of any crime, as in the

ease of the purchaser of liquor illegally sold. But it declined to

hold that a woman could not under some circumstances not pre-

cisely defined, be guilty of a violation of the Mann Act and of a

conspiracy to violate it as well. Light is thrown upon the in-

tended scope of this conclusion by the supposititious case which

the Court put (p. 145):

“‘Suppose, for instance, that a professional prostitute, as well

able to look out for herself as was the man, should suggest and

carry out a journey within the act of 1910 in the hope of black-

mailing the man, and should buy the railroad tickets, or should

pay the fare from Jersey City to New York, she would be within

the letter of the act of 1910 and we see no reason why the act

should not be held to apply. We see equally little reason for not

treating the preliminary agreement as a conspiracy that the law

ean reach, if we abandon the illusion that the woman always is

the victim.’’

In the present case we must apply the law to the evidence; the

very inquiry which was said to be unnecessary to decision in

United States v. Holte, supra.

First. Those exceptional circumstances envisaged in United

States v. Holte, supra, as possible instances in which the woman

might violate the act itself, are clearly not present here. There

is no evidence that she purchased the railroad tickets or that hers

was the active or moving spirit in conceiving or carrying out the

transportation. The proof shows no more than that she went

willingly upon the journeys for the purposes alleged.

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Gebardi et al. vs. United States. 3

Section 2 of the Mann Act' (18 U. S. C. § 398), violation of

which is charged by the indictment here as the object of the con-

spiracy, imposes the penalty upon ‘‘Any person who shall know-

ingly transport or cause to be transported, or aid or assist in ob-

taining transportation for, or in transporting in interstate or

foreign commerce . . . any woman or girl for the purpose

of prostitution or debauchery or for any other immoral purpose

.”? Transportation of a woman or girl whether with or with-

out her consent, or causing or aiding it, or furthering it in any of

the specified ways, are the acts punished, when done with a pur-

pose which is immoral within the meaning of the law. See Hoke

v. United States, 227 U. S. 308, 320.

The Act does not punish the woman for transporting herself;

it contemplates two persons—one to transport and the woman or

girl to be transported. For the woman to fall within the ban of

the statute she must, at the least, ‘‘aid or assist’’ someone. else in

transporting or in procuring transportation for herself. But

such aid and assistance must, as in the case supposed in United

States v. Holte, supra, 145, be more active than mere agreement

on her part to the transportation and its immoral purpose. For

the statute is drawn to include those cases in which the woman con-

1** Any person who shall knowingly transport or cause to be transported,

or aid or assist in obtaining transportation for, or in transporting, in inter-

state or foreign commerce, or in any Territory or in the District of Cclumbia,

any woman or girl for the purpose of prostitution or iebauchery, or for any

other immoral purpose, or with the intent and purpose to induce, entice, or

compel such woman or girl to become a prostitute or to give herself up to

debauchery, or to engage in any other immoral practice; or who shall know-

ingly procure or obtain, or cause to be procured or obtained, or aid or assist

in procuring or obtaining, any ticket or tickets, or any form of transporta-

tion 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 District of Co-

lumbia, in going to any place for the purpose of prostitution or debauchery,

or 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 prostitution, 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 in any Territory or the District of Co-

lumbia, shall be deemed guilty of a felony, and upon conviction 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 the court.’’

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Revie. 8 PRS PEEL LORD ELLIE LE EELE LIVERS GOP SR TES IOS oS

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4 Gebardi et al. vs. United States.

sents to her own transportation. Yet it does not specifically im-

pose any penalty upon her, although it deals in detail with the

person by whom she is transported. In applying this criminal

statute we cannot infer that the mere acquiescence of the woman

transported was intended to be condemned by the general language

punishing those who aid and assist the transporter,? any more

than it has been inferred that the purchaser of liquor was to be

regarded as an abettor of the illegal sale. State v. Teahan, 50

Conn. 92; Lott v. United States, 205 Fed. 28; ef. United States v.

Farrar, 281 U. 8. 624, 634. The penalties of the statute are too

clearly directed against the acts of the transporter as distinguished

from the consent of the subject of the transportation. So it was

intimated in United States v. Holte, supra, and this conclusion

is not disputed by the Government here, which contends only that

the conspiracy charge will lie though the woman could not commit

the substantive offense.

Second. We come thus to the main question in the case, whether,

admitting that the woman, by consenting, has not violated the

Mann Act, she may be convicted of a conspiracy with the man to

violate it. Section 37 of the Criminal Code (18 U. 8. C., § 88),

punishes a conspiracy by two or more persons ‘‘to commit any

offense against the United States’’. The offense which she is

charged with conspiring to commit is that perpetrated by the man,

for it is not questioned that in transporting her he contravened

§ 2 of the Mann Act. Cf. Caminetti v. United States, 242 U. 8.

470. Hence we must decide whether her concurrence, which was

not criminal before the Mann Act, nor punished b, it, may, with-

out more, support a conviction under the conspiracy section, en-

acted many years before.®

As was said in the Holte case (p. 144), an agreement to commit

an offense may be criminal, though its purpose is to do what some

2§3 of the Act (18 U. S. C., § 399), directed toward the persuasion, induce-

ment, enticement or coercion of the prohibited transportation, also includes

specifically those who ‘‘aid or assist’’ in the inducement or the transportation.

Yet it is obvious that those words were not intended to reach the woman who,

by yielding to persuasion, assists in her own transportation.

8§ 30, Act of March 2, 1867 (14 Stat. 471, 484) ‘‘except for an omitted

not relevant provision, . . . has continued from that time to this, in al-

most precisely its present form’’. See United States v. Gradwell, 243 U. S.

476, 481.

PED GLE APE GE RBA GT ONE NPE POE NSE IME YELP TNE es

Gebardi et al. vs. United States. 5

of the conspirators may be free to do alone.* Incapacity of one to

commit the substantive offense does not necessarily imply that he

may with impunity conspire with others who are able to commit it.®

For it is the collective planning of criminal conduct at which the

statute aims. The plan is itself a wrong which, if any act be done

to effect its object, the state has elected to treat as criminal, Clune

v. United States, 159 U. S. 590, 595. And one may plan that others

shall do what he cannot do himself. See Umted States v. Rabino-

wich, 238 U. 8. 78, 86, 87.

But in this case we are concerned with something more than

an agreement between two persons for one of them to commit an

offense which the other cannot commit. There is the added ele-

ment that the offense planned, the eriminai object of the conspiracy,

involves the agreement of the woman to her transportation by the

man, which is the very conspiracy charged.

Congress set out in the Mann Act to deal with cases which fre-

quently, if not normally, involve consent and agreement on the

part of the woman to the forbidden transportation. In every case

in which she is not intimidated or forced into the transportation,

the statute necessarily contemplates her acquiescence. Yet this

acquiescence, though an incident of a type of transportation speci-

*The requirement of the statute that the object of the conspiracy be an

offense against the United States, necessarily statutory, United States v.

Hudson, 7 Cranch 32, avoids the question much litigated at common law

(see cases cited in Wright, The Law of Criminal Conspiracies [Carson ed.

1887] and in Sayre, Criminal Conspiracy, 35 Harv. L. Rev. 393) of the crim-

inality of combining to do an act which any one may lawfully do alone.

5So it has been held repeatedly that one not a bankrupt may be held guilty

under §37 of conspiring that a bankrupt shall conceal property from his

trustee (Bankruptcy Act § 29[b], 11 U. 8S. C., § 52). Tapack v. United States,

220 Fed. 445, certiorari denied 238 U. S. 627; Jollit v. United States, 285

Fed. 209, certiorari denied 261 U. S. 624; Israel v. United States, 3 F. (2d)

743; Kaplan v. United States, 7 F. (2d) 594, certiorari denied 269 U. 8. 582.

And see United States v. Rabinowich, 238 U. S. 78, 86, 87. These cases pro-

ceed upon the theory (see United States v. Rabinowich, supra, 86) that only a

bankrupt may commit the substantive offense though we do not intimate that

others might not be held as principals under Criminal Code, § 332 (18 U. 8. C.,

§ 550). Cf. Barron v. United States, 5 F. (2d) 799.

In like manner Chadwick v. United States, 141 Fed. 225, sustained the con-

viction of one not an officer of a national bank for conspiring with an officer

to commit a crime which only he could commit. And see United States v.

Martin, 4 Cliff. 156; United States v. Stevens, 44 Fed. 132.

SMES SEN TORN ORS. CTE US RES

6 Gebardi et al. vs. United States.

fically dealt with by the statute, was not made a crime under the

Mann Act itself. Of this class of cases we say that the substantive

offense contemplated by the statute itself involves the same com-

bination or community of purpose of two persons only which is

prosecuted here as conspiracy. If this were the only case covered

by the Act, it would be within those decisions which hold, con-

sistently with the theory upon which conspiracies are punished,

that where it is impossible under any circumstances to commit

the substantive offense without cooperative action, the preliminary

agreement between the same parties to commit the offense is not

an indictable conspiracy either at common law, Shannon and

Nugent v. Commonwealth, 14 Pa. St. 226; Miles v. State, 58 Ala.

390; ef. State v. Law, 189 Iowa 910; see State ex rel. Durner v.

Huegin, 110 Wis. 189, 243, or under the federal statute. See

United States v. Katz, 271 U. 8. 354, 355; Norris v. United States,

34 F. (2d) 839, 841, reversed on other grounds, 281 U. S. 619;

United States v. Dietrich, 126 Fed. 664, 667. But criminal trans-

portation under the Mann Act may be effected without the woman’s

consent as in cases of intimidation or force (with which we are

not now concerned). We assume, therefore, for present purposes,

as was suggested in the Holte case, supra, 145, that the decisions

last mentioned do not in all strictness apply.’ We do not rest our

decision upon the theory of those cases, nor upon the related one

that the attempt is to prosecute as conspiracy acts identical with

®The rule was applied in United States v. N. Y. C. & H. R. R. Co.,

146 Fed. 298; United States v. Sager, 49 F. (2d) 725. In the following

cases it was recognized and held inapplicable for the reason that the sub-

stantive crime could be committed by a single individual. Chadwick v.

United States, 141 Fed. 225; Laughter v. United States, 259 Fed. 94; Lisan-

sky v. United States, 31 F. (2d) 846, certiorari denied 279 U. S. 873. The con-

spiracy was also deemed criminal where it contemplated the cooperation of a

greater number of parties than were necessary to the commission of the

principal offense, as in Thomas v. United States, 156 Fed. 897; McKnight v.

United States, 252 Fed. 687; ef. Vannata v. United States, 289 Fed. 424;

Ex parte O’Leary, 53 F. (2d) 956. Compare Queen v. Whitchurch, 24

Q. B. D. 420.

7It should be noted that there are many cases not constituting ‘‘a serious

and substantially continued group scheme for cooperative law breaking’’

which may well fall within the recommendation of the 1925 conference of

senior circuit judges that the conspiracy indictment be adopted ‘‘only after

a careful conclusion that the public interest so requires.’’ Att’y Gen. Rep.

1925, pp. 5, 6.

Gebardi et al. vs. United States. y |

the substantive offense. United States v. Dietrich, 126 Fed. 664.

We place it rather upon the ground that we perceive in the

failure of the Mann Act to condemn the woman’s participation in

those transportations which are effected with her mere consent,

evidence of an affirmative legislative policy to leave her acquiesc-

ence unpunished. We think it a necessary implication of that

policy that when the Mann Act and the conspiracy statute came to

be construed together, as they necessarily would be, the same par-

ticipation which the former contemplates as an inseparable incident

of all cases in which the woman is a voluntary agent at all, but

does not punish, was not automatically to be made punishable

under the latter. It would contravene that policy to hold that the

very passage of the Mann Act effected a withdrawal by the con-

spiracy statute of that immunity which the Mann Act itself con-

fers. ;

It is not to be supposed that the consent of an unmarried per-

son to adultery with a married person, where the latter alone is

guilty of the substantive offense, would render the former an abet-

tor or a conspirator, compare In Re Cooper, 162 Cal. 81, 85, or that

the acquiescence of a woman under the age of consent would make

her a co-conspirator with the man to commit statutory rape upon

herself. Compare Queen v. Tyrrell [1894] 1 Q. B. 710. The prin-

ciple, determinative of this case, is the same.

On the evidence before us the woman petitioner has not violated

the Mann Act and, we hold, is not guilty of a conspiracy to do so.

As there is no proof that the man conspired with anyone else to

bring about the transportation, the convictions of both petitioners

must be

Reversed.

Mr. Justice Carpozo concurs in the result.

A true copy.

Test:

Clerk, Supreme Court, U. 8.

PRISE LATED LOLOL, LETT ILI EINE OG PNP pCR RLS SER