Petition for a Writ of Certiorari — Miles v. United States

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES CIRCUIT COURT OF

APPEALS FOR THE SIXTH CIRCUIT AND

BRIEF IN SUPPORT OF PETITION .

SUBJECT INDEX

PETITION

Page

Summary Statement of the Matter Involved........ 2

Jurisdiction to Review the Judgment.............. 6

gy Perera errr er Ty rierer ye rey 7

Reasons Relied On for Allowance of the Writ....... 10

Pah 4Eb-56556 CUAUL EDN ORG SEER OM ooN a peedd doe 12

BRIEF

Opinions of the Courts Below..................... 13

EHO IN oa oS inca vaconckaccaceas 14

Oe OOM aay oda keneandasdadeueua 18

Specification of Assigned Errors.................. 21

PURSE re recdy cee oes Srey es ere te 22

ii

INDEX TO AUTHORITIES CITED

Page

Ballard v. U. S., 329 U. S. 187, 67 S. C. 261, 91 L.

Ree re a ene Sede Ae atres 7, 11, 17, 28

Bihn v. U. S., 328 U. S. 633, 66 S. C. 1172, 90 L. E.

BOE. Sevan akcdcseo sense hatec ee caees 7, 10, 11, 17, 31

Bollenbach v. U. S., 326 U. S. 607, 66 S. C. 402, 90

i £ Serer Fi Ye

Brown v. U. S., 150 U. S. 93, 14 S. C. 37, 37 L. E

RRR ES ee re Bee ey mare ty op . .10, 17, 24, 27, 30

Cleveland v. U. S., 329 U. S. 14, 67 S. C. 13, 91 L. E

Ue roe AUR Aa RAAT RETESET UN caw dd eh eae 10, 17

Fiswick v. U. S., 329 U. S. 211, 67 S. C. 224, 91 L. E.

BO Livia ceksessibaawe bus udeehienis 10, 17, 24, 27, 30

Hyde v. U. S., 225 U. S. 347, 32 S. C. 795, 56 L. EK.

BE CeCe ce bab Ouest ae seas cee ee edheeeneee 24

Logan v. U. S., 144 U. S. 263, 12 S. C. 617, 36 L. E.

ee en ane ks whe ak eke wae 10, 17, 24, 27, 30

Pinkerton v. U. S., 328 U. S, 640, 66 S. C. 1180, 90

Be Be Seve be ad a ReEA ER eae Ane ee eee ere 27

U.S. v. Irvine, 98 U. S. 450, 25 L. E. 193... . .10, 17, 24, 27, 30

U.S. v. Faleone, 311 U.S. 205, 61 S. C. 204, 85 L. E.

seed ound ke biers basis cbaedeessiaae 10, 17, 28, 30

U. S. v. Kissel, 218 U. S. 601, 31 S. C. 124, 85 L. E.

NE habe dbctasdcedavdesabns cashes *...10, 17, 24, 27, 30

—7_—"

Supreme Court of the United States

OCTOBER TERM, 1948

BENJAMIN JOSEPH MILES and

MYRTLE LETT MILES,

Petitioners,

vs.

THE UNITED STATES OF AMERICA,

Respondent

ee

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH

CIRCUr?f

To the Honorable Chief Justice and Associate Justices of

the Supreme Court of the United States:

Petitioners, Benjamin Joseph Miles and Myrtle Lett

Miles, pray for issuance of a writ of certiorari to the United

States Court of Appeals for the Sixth Circuit, for the pur-

pose of reviewing a decision of that court affirming, with-

out opinion, on October 14, 1948, the verdicts of conviction

of petitioners on April 16, 1947, and sentences on May 16,

1947, in the United States District Court for the Eastern

District of Michigan, Southern Division.

SUMMARY STATEMENT OF THE MATTER

INVOLVED

Petitioners were convicted of conspiracy to knowingly

persuade, induce, entice and cause to be persuaded, induced

and enticed and to aid and assist in persuading, inducing

and enticing, a certain girl to-wit, Loretta Ann McDonald,

to go from Detroit, Michigan in the Eastern District of

Michigan, to the City of Columbus, in the State of Ohio,

the same being in interstate commerce for the purpose of

prostitution, and did thereby knowingly cause the said

Loretta Ann McDonald to go and be carried and trans-

ported from Detroit, Michigan to Columbus, Ohio, as a

passenger upon the line and route of a common carrier in

interstate commerce in violation of Title 18, United States

Code, section 88 (now Title 18, United States Code, section

371), conspiracy to commit offense against the United

States. That statute provided as follows:

‘‘If two or more persons conspire either to com-

mit any offense against the United States, or to de-

fraud the United States in any manner or for any

purpose, and one or more of such parties do any

act to effect the object of the conspiracy, each of the

parties to such conspiracy shall be fined not more

than ten thousand ($10,000) dollars, or imprisoned

not more than two years, or both.’’

The indictment (R. 1-4) named two other persons as

defendants, Ronald Woodling, alias Ronald Bradley,

(which name is the one usually appearing in the record),

and Kay Woodling, alias Kay Nordberg, and a fifth party,

Frank (Peck) Glassman, as a co-conspirator but not 20-

defendant. None of those parties have joined in this

petition.

accccaiiat

3

Petitioners were not named as defendants in Count I

(R. 1). Count IT (R. 1-3) is the conspiracy charge on

which petitioners were convicted. Count III (R. 3-4) states

the substantive offense. The trial court granted a motion

to acquit petitioners on that Count (R. 56-7). However,

the convictions were for conspiracy to commit the offense

stated therein, e. g., violation of Title 18 United States

Code, section 399 (now Title 18, United States Code, sec-

tion 2422), white slave traffic, inducing transportation for

immoral purposes, which reads:

‘*Any person who shall knowingly persuade, in-

duce, entice, or coerce, or cause to be persuaded,

induced, enticed or coerced, or aid or assist in per-

suading, inducing, enticing, or coercing any woman

or girl to go from one place to another in interstate

or foreign commerce, or in any territory or the Dis-

trict of Columbia, 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 con-

sent, 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 or carriers

in interstate or foreign commerce, or any territory

or the District of Columbia, shall be deemed guilty

* * @ 99

A motion to strike all evidence introduced against peti-

tioners and for a judgment of acquittal was denied (R. 56-

58). The ground for the motion was that the substantive

offense and the conspiracy were completed, prior to the

occurrence of any acts or declarations of petitioners al-

legedly connecting them with the conspiracy.

4

The court in the course of a rather long charge to the

jury, among other instructions, charged, them in these par-

ticular words:

(R. 66) ‘‘Now, the offense that the Government

charges in this conspiracy is the violation, against

the defendant Ronald Woodling, or Ronald Brad-

ley, of Section 398, the transportation element; and

against all four defendants, a conspiracy to violate

Section 399, inducing the transportation for im-

moral purposes, as I described it to you. That is

the first element, an object to be accomplished. The

object to be accomplished was the violation of this

law, Section 399, insofar as this conspiracy is con-

cerned; the inducing or enticing of this girl by the

defendant or aiding and abetting by them to make

this trip, as described, for the purposes described.’’

(R. 68) ‘‘Now, as to the duration of a conspir-

acy: The law is that once a conspiracy is shown to

exist, which in its nature is not ended merely by

end of time, it continues to exist until consummated

or until the accomplishment of the object of it. No

general rule of law can be accurately laid down

touching when accomplishment has been achieved.

It follows, therefore, that this question is one well

nigh wholly of fact, of fact to be resolyed by com-

mon sense and human observation and experience,

and largely each category must be weighed in its

own facts.’’

(R. 85) ‘*The second count is a conspiracy charge.

You ean find all of the defendants guilty. Your

verdict can be that: they are all guilty; or none

guilty; or that two or more are guilty.’’

(R. 75) ‘*Criminal intent may be implied from

the act, conduct, declarations or admissions of any

of the defendants. Considered in relation to the

charge made, they may establish criminal intent.”’

(R. 74) ‘*While you may show what a man does

by direct evidence of eye witnesses, the only way

s=-~—7"

5

you can show what he intends or believes or what

his plans or purposes are, or were, is by circum-

stantial evidence.’’

(R. 77) ‘*And the fact that there was some testi-

mony in the case here that Loretta Ann McDonald

freely went of her own will, and so on, that makes

no difference, even though she did go freely of her

own will you should find if all the other elements of

the offense have been proved b2yond a reasonable

doubt, as I have explained to you, and she might

have consented, it makes no difference as to the

guilt or innocence in this case. Or the fact that, if

you should find that Loretta Ann McDonald has

signified a willingness or wanted to go to Colum-

bus, that would not make any difference.’’

The jury returned verdicts of guilty as to all defendants

on the counts which were not dismissed (R. 5).

Notice of appeal (R. 8) and assignments of error (R. 9-

11) were filed by petitioners, and the judgments and con-

victions were affirmed, without opinion, by the United

States Court of Appeals for the Sixth Cireuit on October

14, 1948 (R. 95). This Court granted an extension of time

to and including November 30, 1948, in which to file a peti-

tion for writ of certiorari.

What is now involved are the judgments of the appellate

court in affirming certain rulings of the trial court and in

sanctioning the manner of charging the jury on vital ele-

ments of the offense.

The rulings were:

(1) That the conspiracy had not terminated when the

woman transported had crossed the state line, which was

prior to the occurrence of any acts or declarations of peti-

tioners allegedly connecting them with the conspiracy;

and

(2) That the evidence against petitioners, which was

of activities and declarations after the woman transported

had crossed the state line, was sufficient as a matter of law

to present a questi»n for the jury as to whether or not peti-

tioners had joined and participated in the conspiracy.

Those rulings, and their affirmances on appeal decided

federal questions in a way probably in conflict with appli-

cable decisions of this Court.

The objectionable features of the charge are set forth

supra, In sustaining their correctness a federal question

was decided in a way probably in conflict with applicable

decisions of this Court, and resulted in a violation of the

minimuin standards of clarity and conciseness necessary to

insure a fair trial as defined by this Court.

JURISDICTION TO REVIEW THE JUDGMENT

Jurisdiction to issue a writ of certiorari to the United

States Court of Appeals for the Sixth Circuit and to review

the judgment is conferred on this Court by Title 28, United

States Code, section 1254, as follows:

‘Cases in the courts of appeals may be reviewed

by the Supreme Court by the following methods:

‘(1) By writ of certiorari granted upon the

petition of any party to any civil or criminal case,

before or after the rendition of judgment or de-

cree ;’”

This was a eriminal prosecution, (Indictment, R. 1-4) for

violation of Title 18, United States Code, section 88 (now

Title 18, United States Code, section 371), conspiracy to

commit offense against the United States. The offense

specified (set out in Count III of the Indictment R. 3-4)

was violation of Title 18, United States Code, section 399

e'e_—_—"_

7

(now Title 18, United States Code, section 2422), white

slave traffic, inducing transportation for immoral purposes.

Petitioners were convicted and sentenced in the trial court

(R. 5-7), and the same were affirmed upon appeal to the

United States Court of Appeals for the Sixth Cireuit on

October 14, 1948, without opinion (R. 95). That opinion

was a final judgment. An extension of time to and includ-

ing November 30, 1948 was granted by this Court for the

filing of this petition.

The appellate court, in affirming the rulings of the trial

court and the correctness of portions of the charge to the

jury, which are the questions presented in this petition,

decided federal questions in a way probably in conflict with

applicable decisions of this Court (Supreme Court Rule

38 (5) (b)).

The questions presented also raise important issues in

the administration of the federal criminal laws. Ballard v.

U. §., 329 U. S. 187, 67 S. C. 261, 91 L. E. 181; Bihn v. U. S.,

328 U. S. 633, 66 S. C. 1172, 90 L. E. 1485.

QUESTIONS PRESENTED

1. Whether there was error in the appellate court’s af-

firmance of the trial court’s ruling that the conspiracy had

not terminated and been completed at the instant the

woman transported had crossed the Michigan-Ohio line;

which crossing had taken place prior to the occurrence of

any acts or declarations of petitioners allegedly connecting

them with the conspiracy; and that therefore a conspiracy

existed which could be joined.

This question was raised in the trial court by objections

to the introduction of evidence which appear at pages 14,

15, 17, 18, 29, 31, 32, 48, 50, 54, 56, 57 and 58 of the record,

8

and by a motion to strike all evidence against petitioners

and for a judgment of acquittal (R. 56).

On appeal, the points relied on (R. 9-11) raised the issue

in the Court of Appeals. The Court of Appeals, in affirm.

ing the judgments without opinion, stated that no error

existed in the proceedings (R. 95).

2. Whether there was error in the appellate court’s af-

firmance of a ruling by the trial court that the evidence

against petitioners, which was of activities and declara-

tions of the petitioners after the woman transported had

crossed the state line, was sufficient as a matter of law to

present a question for the jury as to whether or not peti-

tioners had joined and participated in the conspiracy

charged.

This question was raised in the trial court by objections

to the introduction of evidence which appear at pages 14,

15, 17, 18, 29, 31, 32, 48, 50, 54, 56, 57 and 58 of the record,

and by a motion to strike all evidence against petitioners

and for a judgment of acquittal (R. 56).

On appeal, the points relied on (R. 9-11) raised the issue

in the Court of Appeals. The Court of Appeals, in affirm-

ing the judgment without opinion, stated that no error

existed in the proceedings (R. 95).

3. Whether the appellate court’s sanctioning of the

manner of charging the jury on vital elements of the

offense, which (1) omitted reference at a crucial point to

the requirement of transportation by common carrier, (2)

charged that there is no rule of law governing the ques-

tion of how long a conspiracy continues, (3) failed to

charge that one defendant alone could be guilty on the

conspiracy count, (4) stated that the declarations and con-

duct of any of the conspirators are competent fo prove

criminal intent on the part of “ll the conspirators, and

ES_

9

(5) instructed that though the woman may have made the

interstate trip of her own free will, it made no difference

as to the guilt or innocence of the accused, violated the

minimum standards of correctness, clarity, and concise-

ness necessary to insure a fair trial.

The errors included in this question have been properly

saved for consideration here. The portions of the charge

involved appear at pages 66, 68, 85, 75, 74 and 77 of the

record, respectively.

The attention of the trial court was called to the element

of transportation by common carrier (R. 86-7). On the

second point the trial court had repeatedly rejected peti-

tioners’ arguments that the conspiracy had terminated as

a matter of law (R. 31, 32, 50, 56). Numbers three and five

are points 10 and 9, respectively, of the points relied on for

appeal (R. 10). Number 4 is in the same class as number

two. After repeated objections to the competence of items

of evidence and.a motion to strike and for judgment of

acquittal (R. 56-8) the trial court’s mind was fixed, and it

% would have been useless to further except specifically to

this and other parts of the charge.

The appellate court, in affirming the judgments without

opinion, stated that no error was apparent on the record

(R. 95).

10

REASONS RELIED ON FOR ALLOWANCE

OF THE WRIT

1. The rulings of the courts set forth in the ‘‘ Questions

Presented’’ in this petition, decided federal questions in a

way probably in conflict with the applicable decisions of

this Court in Fiswick v. U. S., 329 U. S. 211, 67 S. C. 224,

91 L. E. 196; Bihn v. U. S., 328 U. S. 633, 66 S. C. 1172, 90

L. E. 1485; Bollenbach v. U. S., 326 U. S. 607, 66 S. C. 402,

90 L. E. 350; U. S. v. Falcone, 311 U. S. 205, 61 S. C. 204,

85 L. E. 128; U. 8. v. Kissel, 218 U. S. 601, 31 S. C. 124, 54

L. E. 1168; Brown v. U. S., 150 U. S. 93, 14 8. C. 37, 37 L.

E. 1010; Logan v. U. S8., 144 U. S. 268, 12 S. C. 617, 36

L. E. 429; and U. S. v. Irvine, 98 U. S. 450, 25 L. E. 193.

This was a criminal prosecution, for conspiracy, \wnder

Title 18, United States Code, section 88 (now Tith 18,

United States Code, section 371) to violate Title 18, United

States Code, section 399 (now Title 18, United States Code,

section 2422), white slave traffic, inducing transportation

for immoral purposes.

The errors which petitioners contend are grounds for

reversal by this Court concerned whether the conspiracy to

transport the woman involved terminated when she crossed

the state line, the type and quantum of proof which as a

matter of law will constitute a jury question, where the

first contact of petitioners with the other conspirators or

with the woman transported was after she had crossed a

state line, and whether due to certain errors in the charge

to the jury it met the minimum standards of clarity, cor-

rectness and conciseness required in a trial of this type.

Those rulings decided federal questions within the mean-

ing of Supreme Court Rule 38 (5) (b). Fiswick v. U. S.,

supra; Cleveland v. U. S., 329 U. 8. 14, 67 S. C. 13, 91 L.

—aaEEE

11

E. 12; U. S. v. Sheridan, 329 U. S. 379, 67 S. C. 332, 91 L.

E. 359.

Petitioners believe that the principles of the above cases,

properly applied, would produce a contrary result.

9 The rulings of the courts, below, set forth in the

‘‘Questions Presented”’ in this petition, present important

questions in the administration of federal criminal pro-

cedure.

Those rulings, on the time of termination of the conspir-

acy, where the only evidence implicating petitioners was

concerning matters that occurred after the woman trans-

ported had crossed the state line, on the sufficiency of the

proofs to raise a jury question, where there was no contact

whatsoever between petitioners and the other conspirators

or the woman involved until she had crossed the state

bordei, and on the requirements of clarity, correctness and

conciseness of the charge to the jury are matters of general

interest and of vital importance in the enforcement of the

conspiracy statute.

Such is a sufficient reason for allowance of the writ.

Bollenbach v. U. S., supra; Bihn v. U. S., supra; Ballard

v. U. S., swpra.

12

PRAYER

Wherefore, petitioners pray that a writ of certiorari

issue under the seal of this Court, directed to the United

States Court of Appeals for the Sixth Circuit, command-

ing said court to certify and send to this Court a full and

complete transcript of the record and. proceedings of said

cause, numbered and entitled in its docket No. 10,611, Ben-

jamin Joseph Miles and Myrtle Lett Miles v. United States

of America, to the end that said cause may be reviewed and

determined by this court, and that the judgment of the

United States Court of Appeals for the Sixth Circuit be

reversed, and for such further relief as this court may

deem proper.

Respectfully submitted,

FITZGERALD, WALKER, CONLEY

& HOPPING,

LOUIS M. HOPPING,

2256 Penobscot Building,

Detroit 26, Michigan,

Counsel for Petitioners.

PETER L. LaDUKE,

2256 Penobscot Building,

Detroit 26, Michigan,

Of Counsel.

13

Supreme Court of the United States

OCTOBER TERM, 1948

BENJAMIN JOSEPH MILES aad

MYRTLE LETT MILES,

Petitioners,

vs.

THE UNITED STATES OF AMERICA,

Respondent

ea ee

BRIEF IN SUPPORT OF PETITION FOR

WRIT OF CERTIORARI

Subject Index Appears on First Page.

Index to Authorities Cited appears on second page.

OPINIONS OF THE COURTS BELOW

The proceedings in the District Court of the United

States for the Eastern District of Michigan, Southern

Division were begun by indictment (R. 1-4) and docketed

as criminal case Number 29,248. The verdict of the

jury filed April 16, 1947 (R. 5), and the judgments and

sentences filed May 16, 1947 (R. 6-7), were not reported.

14

The appeal to the United States Court of Appeals for

the Sixth Circuit was docketed as case number 10,611.

The judgment affirming the convictions without opinion,

filed October 14, 1948, has not been reported.

GROUNDS FOR JURISDICTION

The date of the judgment of the United States Court

of Appeals for the Sixth Circuit for which review is

sought was October 14, 1948 (R. 95). That opinion was

a final judgment. An extension of time to and including

November 30, 1948 was granted by this Court within

which to apply for a writ of certiorari. (Supreme

Court Rule 38 (2); Rules of Criminal Procedure 37 (b)

(2)).

This was a criminal prosecution (Indictment, R. 1-4),

for violation of Title 18 United States Code, section

88 (now Title 18, United States Code, section 371),

conspiracy to commit offense against the United States.

The offense specified (set out in Count III of the In-

dictment R. 3-4), was violation of Title 18 United

States Code, section 399 (now Title 18, United States

Code, section 2422), white slave traffic inducing trans-

portation for immoral purposes. (The statutes are set

forth supra in the petition pp. 2-3.) Petitioners were

convicted and sentenced in the trial court on the con-

spiracy count (R. 5-7), after the substantive count was

dismissed (R. 56-7). The United States Court of Ap-

peals for the Sixth Circuit affirmed the proceedings, with-

out opinion (R. 95).

Jurisdiction for issuance of a writ of certiorari to

that court to review the judgment is conferred on this

Court by Title 18, United States Code, section 1254,

which provides:

—

15

‘‘Cases in the Courts of Appeals may be re-

viewed by the Supreme Court by the following

methods:

(1) By writ of certiorari granted upon the peti-

tion of any party to any civil or criminal case, be-

fore or after rendition of judgment or decree;”’

Review is sought because the appellate court, by its

judgment without opinion, affirmed certain rulings of

the trial court and sanctioned the manner of instruct-

ing the jury on vital elements of the offense.

The rulings were:

(1) That the conspiracy had not terminated when the

woman transported had crossed the state line, when the

crossing had taken place prior to the occurrence of any

acts or declarations of petitioners allegedly connecting

them with the conspiracy; and,

(2) That the evidence against petitioners, being acts

and declarations occurring after the woman transported

had crossed the state line, was sufficient as a matter of

law to present a question for the jury as to whether

or not petitioners had joined the conspiracy.

These questions were raised in the trial court by ob-

jections to the introduction of evidence which appear at

pages 14, 15, 17, 18, 29, 31, 32, 48, 50, 54, 56, 57, and 58

of the record, and by a motion to strike all evidence against

petitioners ‘and for a judgment of acquittal (R. 56).

On appeal, the issues were raised in the points relied

on (R. 9-11). The Court of Appeals, in affirming the

judgments without opinion, stated that no error existed

in the proceedings (R. 95).

Therefore the questions have been properly saved

for consideration by this Court.

16

The objectionable features of the charge are set forth

supra, in the petition, (pp. 4-5).

The instructions are erroneous because, respectively;

(1) reference to the statutory requirement of transporta-

tion by common carrier was omitted at a crucial point;

(2) the jury was charged that there is no rule of law

governing the duration of a conspiracy; (3) under the

language of the. indictment (R. 3-4) one defendant alone

could have been found guilty of conspiracy; (4) it was

stated, without qualification, that the declarations and

conduct of any one of the conspirators were competent

and admissible against all to prove criminal intent, and

(5) the jury was foreclosed from considering whether the

circumstances of the woman’s leave-taking had any bear-

ing on the defendants’ criminal intent.

The errors have been properly saved for considera-

tion by this Court.

The portions of the charge appear in the record at

pages 66, 68, 85, 75 and 77, respectively.

The attention of the trial court was called to the lack of

instruction on the element of transportation by common

earrier (R. 86-7). On the second point, the trial court had

repeatedly rejected petitioners’ arguments that the con-

spiracy had terminated as a matter of law prior to the oc-

currence of any events allegedly connecting petitioners to

the offense (R. 31, 32, 50 and 56). Numbers three and five

are points 10 and 9, respectively, of the points relied on for

appeal (R. 10), and were fixed and ultimate conclusions of

the trial court. Number four is in the same class as num-

ber two. After repeated objections to the competence of

items of evidence appearing throughout the record, and

denial of the motion to strike and for judgment of acquittal

(R. 56-8), petitioners had done all that could be expected

of them to raise the issues.

—

17

The appellate court found no error on the record, in af-

firming the judgments, without opinion (R. 95).

The appellate court, in affirming the rulings of the trial

court above referred to and by refusing to hold that the

charge to the jury violated, the minimum standards of cor-

rectness, conciseness and clarity necessary for a fair trial,

decided federal questions in a way probably in conflict with

applicable decisions of this Court (Supreme Court Rule

38 (b) (2)).

Those eases are Fiswick v. U. S., 329 U.S. 211, 67 8. C.

924, 91 L. E. 196; Bihn v. U. S., 328 U.S. 633, 66 S. C. 1172,

90 L. E. 1485; Bollenbach v. U. S., 326 U. 8. 607, 66 S. C.

402, 90 L. E. 350; U. S. v. Falcone, 311 U. S. 205, 61 S. C.

904, 85 L. E. 128; U. S. v. Kissel, 218 U. S. 601, 31 S. C. 124,

54 L. E. 1168; Brown v. U. S., 150 U. S. 93, 14 S. C. 37, 37 L.

E. 1010; Logan v. U. S., 144 U. S. 263, 12 8. C. 617, 36 L. E.

429; and U. S. v. Irvine, 98 U. S. 450, 25 L. E. 193.

The rulings decided federal questions and adequate

grounds exist for allowance of the writ. Fiswick v. U. S.,

supra; Cleveland v. U. S., 329 U.S. 14, 67 S. Ct. 13, 91 L. E.

12; U. 8. v. Sheridan, 329 U. S. 379, 67 S. C. 332, 91 L. KE.

359.

The matters are in addition, substantial errors which,

denied. fundamental rights of petitioners, and are matters

of general interest and vital importance in the enforcement

of the federal criminal laws. This supplies a further

grounds for allowance of the writ. Ballard v. U. S., 329 U.

S. 187, 67 S. C. 261, 91 L. E. 181; Bihn v. U. S., supra; Bol-

lenbach v. U. S., supra.

Therefore this Court has jurisdiction to grant a writ of

certiorari as prayed.

18

STATEMENT OF THE CASE

The contents of the ‘‘Summary Statement of the Matter

Involved,’’ supra, pp. 2-6 of the petition for writ of certio-

rari are adopted and made a part of this section. The

material below is supplementary thereto.

The woman involved in the transportation was named

Loretta Ann McDonald (Indictment, R. 14). She was

commonly called Billie.

Defendant Ronald Woodling (alias Ronald Bradley, the

name generally used in the record) had arranged for her

to enter into a life of prostitution (R. 13 and 20-29). A

couple of days before October 2, 1946, she had expressed a

desire to leave Detroit (R. 26), and wished him to arrange

the trip.

On Wednesday, October 2, 1946, he told her she was

going to Columbus, Ohio the next day (R. 15 and 26). That

night he gave her ten dollars for train fare and a slip of

paper with the address of petitioner Benjamin Miles, a

phone number, and a notation ‘‘I’m Billie. Peck sent me,”’

thereon (R. 15-16).

Bradley picked up Billie about 10:30 the following morn-

ing, Thursday, October 3, 1946, and after eating breakfast

they went to the Michigan Central Depot in Detroit. Brad-

ley and Billie remained at the station until 1:00 P. M., when

Billie got on the train for Columbus (R. 16).

She arrived-in Columbus, Ohio about 6:30 P. M. of that

day (R. 15 and 26), and went by cab to the home of peti-

tioners (R. 16, 51 and 52).

Upon arriving there she announced her name to Myrtle

Miles (R. 51 and 52). Benjamin Miles told Billie he had

not expected her until later (R. 16 and 52).

>>

19

Petitioners operated a house of prostitution at the ad-

dress. Billie worked there as a prostitute for a short time

(R. 18). —

The fourth defendant, Kay Woodling (alias Kay Nord-

berg, which is the name generally appearing in the record)

was previously acquainted with Ronald Bradley, and with

Frank (Peck) Glassman, who was named as a co-conspira-

tor but not co-defendant, and who was a witness for the

government.

Around the first of October, 1946, Kay Nordberg met

Frank Glassman in Columbus, Ohio (R. 36). She came in

on Sunday night (R. 36 and 43), which was probably

September 29, 1946, and left on Tuesday, October 1, 1946,

for Detroit.

On the day she left for Detroit, she told Glassman that

she would like to place a girl for Ronnie, and preferred

that she go to the house of prostitution operated in

Columbus, Ohio by petitioners (R. 36). Kay Nordberg

apparently knew of the place and either she or Ronnie

knew the address because he gave it to Billie the follow-

ing evening, October 2, 1946 (R. 15-16). Glassman knew

Benjamin Miles but not the address of his place, and

didn’t learn the address until the following day (R. 35

and 37), which was Thursday, October 3, 1946, the day

Billie arrived in Columbus.

On Tuesday evening, after her arrival in Detroit, Kay

Nordberg called Glassman and asked him to contact pe-

titioner Benny Miles with reference to placing the girl

for Bradley (R. 36). He agreed to call Miles (R. 36).

Glassman’s testimony does not establish the date or

time, but he called petitioner Benjamin Miles after get-

ting the phone number from a cab driver (R. 37, 51 and

52). Glassman said that a girl from Detroit named Kay

20

had called and said she would like to place a girl (R. 37,

51 and 52). He didn’t tell Miles where the girl was from

(R. 52). Glassman had never before had anything to do

with placing a girl in a call house (R. 38) and didn’t

know who this girl was (R. 39).

Benny Miles said to send the girl, because there was

always an opening for one (R. 37 and 52).

About half an hour later Kay Nordberg called Glass-

man and he told her that Miles had said his house could

use a girl.

Statements given the Federal Bureau of Investigation

by petitioners on February 28, 1947 were put in evidence

by the government at the trial (R. 50-53). That given by

Benjamin Miles establishes (R. 52) that the call from

Glassman came on the same afternoon that Loretta Me-

Donald arrived at the Miles home, and only a short time

before her arrival. She was expected much later.

One-half hour later Kay Nordberg made the call to

Glassman above referred to. There is no evidence of Kay

having thereafter contacted Bradley, who had been at

breakfast and at the train station with Billie between

10:30 A. M. and 1:00 P. M.

The charge to the jury limited their consideration (R.

82) to evidence of events occurring between October 1 and

October 3, 1946. But it was not specified what evidence

was thereby excluded from their consideration.

A great deal of evidence of events long before and after

the duration of the alleged conspiracy had been previously

admitted against repeated objections by petitioners. In

some cases the trial court stated that the subjects would

be properly treated in the charge (R. 14; 15 and 50).

21

SPECIFICATION OF ASSIGNED ERRORS

1. The appellate court erred in affirming the trial

court’s ruling that the conspiracy had not terminated at

the instant the woman transported crossed the Michigan-

Ohio line, and that therefore the conspiracy continued to

the time of the acts and declarations of petitioners

allegedly connecting them therewith.

9. The appellate court erred in affirming the ruling of

the trial court that the evidence against petitioners, which

consisted of acts and declarations occurring after the

woman transported had crossed the state line, was suffi-

cient as a matter of law to present a question for the

jury as to whether petitioners had joined the conspiracy.

3. The appellate court, by affirming the trial court’s

judgment’s without opinion, erroneously sanctioned the

manner of charging the jury, which (1) omitted reference

at a crucial point to the requirement of transportation by

common carrier, (2) charged that there is no rule of law

governing the question of how long a conspiracy con-

tinues, (3) failed to charge that one defendant alone could

be fcund guilty on the conspiracy count, (4) stated, with-

out qualification, that the declarations and conduct of any

of the conspirators are competent to prove criminal intent

on the part of any or all of the conspirators, and (5)

instructed that though the woman may have made the in-

terstate trip of her own free will, it made no difference as

to the guilt or innocence of the accused.

ARGUMENT

SUMMARY

The United States Court of Appeals for the Sixth

Circuit, by affirming the judgment of the trial court, erred

in its rulings regarding the duration of the conspiracy

charged and the sufficiency of the evidence as to petition-

ers’ connection with the offense, and by sanctioning the

manner in which the jury was instructed.

All elements of the offense were completed prior to the

occurrence of any acts or declarations of petitioners con-

necting them therewith. The conspiracy contemplated but

one act, the interstate transportation of a woman for

purposes of prostitution. The offense was complete when

she crossed the state line. The appellate court errone-

ously applied rules of law respecting conspiracies of a

continuing nature, where a series of acts is necessarily

involved.

Irrespective of whether that ruling was correct, there

was further error in the appellate court’s affirmance of

the trial court’s ruling that there was sufficient evidence

respecting participation in the conspiracy by petitioners

to present a question for the jury.

There was no evidence connecting petitioners to the

conspiracy until after the woman transported had crossed

the state line. The record affirmatively shows that they

did not know the girl or where she was from.

This ruling was particularly prejudicial because a

great deal of extraneous evidence was heard by the jury,

and the effect of it could not be eradicated by the manner

in which the jury was charged.

VO

23

Further error was committed by the appellate court in

sanctioning the manner of charging the jury at five vital

points.

A writ of certiorari should issue as prayed because the

rulings and the sanctioning of the manner of giving the

charge decided federal questions in a way probably in

conflict with applicable decisions of this court. A further

reason exists in that substantial questions are presented

which are of general public interest and important mat-

ters respecting the enforcement of the federal criminal

laws.

1. THE RULING THAT THE CONSPIRACY HAD NOT TER-

MINATED AT THE INSTANT THE WOMAN TRANS-

PORTED HAD CROSSED THE STATE LINE, BUT CON-

TINUED UNTIL THE TIME OF THE ACTS AND DE-

CLARATIONS OF PETITIONERS ALLEGEDLY CON-

NECTING THEM THEREWITH, DECIDED A FEDERAL

QUESTION IN A WAY PROBABLY IN CONFLICT WITH

APPLICABLE DECISIONS OF THIS COURT, AND PRE-

SENTS AN IMPORTANT QUESTION IN THE ADMINIS-

TRATION OF THE FEDERAL CRIMINAL LAWS.

The first contact between the other named conspirators

and petitioners was the phone call from Glassmon (R. 37

and 52). His testimony does not establish the date or

time of the call. The statement of petitioner Benjamin

Miles shows that the call was made on the evening the

girl arrived (R. 52). She left Detroit at 1:00 P.M. and

arrived in Columbus at 6:30 P.M., and took a cab to the

Miles residence (R. 16, 26, 51 and 52). Therefore she did

not appear at the Miles home until sometime after 6:30

P.M. October 3, 1946, which was long before she was ex-

pected (R. 52).

The government put in evidence the statement of Ben-

jamin Miles and is bound by its contents, at least as to

matters not otherwise controverted.

24

The evidence conclusively shows that Loretta McDonald

had crossed the Michigan-Ohio line prior to the first con-

tact between petitioners and the other conspirators. Judi-

cial notice should be taken that the travel time from De-

troit to the state line is about an hour.

This was not a continuing type of conspiracy requiring

a series of acts, which would continue until abandonment

or withdrawal of the participants. Only one act was in-

volved, e.g., transportation of a woman across a state

line.

As said in Hyde v. U. S., 225 U. S. 347, 32 S. C. 793,

56 L. E. 1114:

‘‘The distinction is vital and has different conse-

quences and incidents. * * * The conspiracy ac-

complished or having a distinct period of accom-

plishment differs from one that is to be continu-

ous.”’

The situation is governed by the principles of such cases

as Fiswick v. U. 8., Bollenbach v. U, S., U. S. v. Kissel,

Brown v. U. S., Logan v. U. S. and U. S. v. Irvine, all

supra.

In the Fiswick case the offense was the filing of false

alien registration statements. It was held that the con-

spiracy terminated on the filing of the last statement.

Bollenbach v. U. S., supra, held that a party did not

become a member of the conspiracy to transport securi-

ties where the substantive offense was completed.

U. S. v. Kissel, supra, held that while a conspiracy is

not co-existent solely with its formation, it terminates

upon its abandonment or success.

The Brown and Logan case involved murders and the

Irvine case a wrongful witholding of funds. All held that

— S

25

the offense being a single act and not a series of acts,

the conspiracy terminated upon completion of the offense.

These are applicable decisions because they all deal

with conspiracies to commit offenses which by their nature

are completed upon the doing of a single act. Here the

act was transportation of a woman across a state line.

At that instant all the elements of the offense were com-

pleted, as the narrative of facts above conclusively

demonstrates. All the acts occurred prior to any contact

with petitioners, and their participation was not a neces-

sary element of the conspiracy. There was sufficient

showing as to the intent of Bradley and Woodling to

transport the girl for purposes of prostitution whether

or not she ever went to the Miles home. For instance,

Bradley knew Bobbie Adams who operated another call

house in Columbus, to where he later took the girl (R.

47-8).

The above decisions of this Court were probably mis-

applied because they all hold that where a non-continuous

conspiracy is involved the completion of the substantive

offense marks the termination point of the conspiracy;

and since a federal statute was involved this was clearly

a federal question.

The ruling is one of general interest and substantial

rights of petitioners are involved. This is so because it

is important to settle how far the conspiracy net-may be

spread to draw accused persons within its folds.

26

2. THE RULING THAT THE EVIDENCE RESPECTING THE

ACTS AND DECLARATIONS CF PETITIONERS AL-

LEGEDLY CONNECTING THEM WITH THE CONSPIR-

ACY WAS SUFFICIENT AS A MATTER OF LAW TO

PRESENT A QUESTION FOR THE JURY DECIDED A

FEDERAL QUESTION IN A WAY PROBABLY IN CON-

FLICT WITH APPLICABLE DECISIONS OF THIS COURT,

AND PRESENTS AN IMPORTANT QUESTION IN THE

ADMINISTRATION OF THE FEDERAL CRIMINAL LAWS.

The first contact between petitioners and the other de-

fendants was the phone call from Glassman (R. 37, 51

and 52). That and the arrival of Billie at the Miles home,

and her agreeing to work there represents the whole of

the evidence respecting petitioners’ connection to the con-

spiracy.

There was testimony that the girl was taken to the

doctor (R. 16, 32-4, 53 and 58) for an examination, that

she had. a quarrel with one of the girls in the house (R.

53) and that another girl from Detroit was there (R. 17-

18). The admission of that testimony was damaging and

prejudicial, and designed to bolster a weak case. It was

not cured by a simple statement that the jury was limited

to considering only events occurring between October 1

and 3, 1946 (R. 82). For instance, immediately before the

charge was given the court overruled with finality the

objection to the medical report (R. 58). The record con-

tains. much other evidence of the same nature and ob-

jections thereto.

Therefore, the question of whether the evidence as a

matter of law presented a jury question was of utmost

importance in this case.

The call from Glassman came long after the girl Billie

was on her way to Columbus (R. 52). A holding that the

conspiracy was not then ended and further that petition-

—

27

ers joined the conspiracy and became liable for all of its

consequences is an interpretation of the conspiracy stat-

ute which probably misapplies applicable decisions of this

Court, supra, and has serious and important consequences

in the administration of federal criminal procedure.

It is important to distinguish this situation from one

where a party has joined a conspiracy and the question

is whether he shall be responsible for certain subsequent

acts, such as in Pinkerton v. U. S., 328 U. S. 640, 66 S. C.

1180, 90 L. BE. 1489.

Whatever presumptions may obtain there do not apply

here, where the questions are whether or not a conspiracy

was in existence at the time the particular acts occurred,

and, secondly, if it had not terminated, whether the acts

and declarations as a matter of law were sufficient to

make a question for the jury as to whether the con-

spiracy was joined.

The decisions of this Court have established that con-

spiracies such as the one here, contemplating a single

offense, do have, as a matter of law definite starting and

termination points. The principle was established in the

Fiswick, Bollenbach, Kissel, Brown, Logan and Irvine

cases, as pointed out in the discussion under the first

Specification of Error, supra.

A further question in the Bollenbach case, supra; was

whether the acts of the defendant could in any event con-

stitute joinder of the conspiracy. He had assisted in the

disposal of stolen securities after their interstate trans-

portation. It was held that knowledge of the conspiracy

and of intention to enter the criminal partnership had

not been proven.

Here the testimony of Glassman (R. 37) definitely

establishes that petitioners did not know who the girl was

28

or where she was from. Admittedly she worked as a

prostitute at the Miles home. But that was no federal

offense. Petitioners are in the same position as the de-

fendant Bollenbach, and the law of that case is directly

applicable here.

U. S. v. Falcone, supra, is likewise an applicable de-

cision of this Court on the question of whether or not as

a matter of law a conspiracy was joined. Falcone sold

material to a group of still operators, probably with

knowledge the supplies would he used in illicit distilling.

It was held that he did not thereby become a party to the

conspiracy, though his conduct may have furthered the

objects of the same.

The rule there governs here: petitioners having taken

the girl Billie into their house may have aided the object

of the conspiracy, but they had no knowledge of the con-

spiracy and were not conspirators.

As in the case of defendant Falcone, petitioners are

not charged with aiding and abetting the offense, since

that count was dismissed (R. 56-7).

It is contended that the above decisions are applicable

to petitioners and were misapplied here.

A further reason for allowance of the writ is that there

is presented an important question in the administration

of criminal justice. Ballard v. U. S. and Bollenbach v.

U. S., supra.

This was a federal criminal prosecution. Assuming

that the first assignment of error is decided against the

contention of petitioners, and a conspiracy was in exist-

ence at the time of their first contact with the other de-

fendants, the question remains whether petitioners joined

the criminal partnership. That subject is of general in-

__ ecgaeemaaalal

29

terest, not only for a Mann Act offense, but for the pur-

poses of prosecutions under other federal criminal laws.

A holding that petitioners joined this conspiracy per-

mits encompassing within the folds of the conspiracy

dragnet those who shall touch in the slightest, or even

gaze upon, the most distant orbit of the operations of a

conspiracy. Doing so ignores well-settled requirements

regarding proof of intent to participate in the offense

charged.

3. THE APPELLATE COURT ERRED IN SANCTIONING THE

TRIAL COURT’S CHARGE TO THE JURY. THEREFORE

FEDERAL QUESTIONS WERE DECIDED IN A WAY

PROBABLY IN CONFLICT WITH APPLICABLE DECI

SIONS OF THIS COURT, AND SUBSTANTIAL QUES-

TIONS IN REGARD TO THE ADMINISTRATION OF FED-

ERAL CRIMINAL PROCEDURE ARE THEREBY PRE-

SENTED.

The objectionable features of the charge are set out

supra, in the petition for writ of certiorari, pp. 4-5. They

will be discussed in the order as there set forth.

(1) Reference to the requirement of transportation by

common carrier was omitted. At the conclusion of the

charge, in response to an objection by counsel (R. 86) the

statute was read in its entirety (R. 87). But attention

was not called to the transportation by common carrier

element, The term was mentioned in an incidential fash-

ion at pages 76 and 83 of the record. But at crucial points

(R. 66 and 78) the point was omitted. The net resuit is

that the requirement was never adequately fixed in the

minds of the jury.

(2) The instruction that no rule of law is applicable and

that the jury may find the duration of the conspiracy on

the basis of their own experience and observation mis-

30

applies the prinicples of the Fiswick, Sollenbach, Falcone,

Kissel, Brown, Logan, and Irvine cases, cited and dis-

cussed supra, under the first and second specifications.

Moreover, the effect of the instruction is to tell the

jury that a continuing conspiracy was involved.

(3) Omitting to state that one defendant alone could

be found guilty of conspiracy ignores the language of the

indictment, which names ‘‘other persons to the Grand

Jurors unknown’’ as co-conspirators (R. 2). This omis-

sion is particularly damaging because of the small amount

of evidence respecting the alleged participation of peti-

tioners as compared to that concerning other defendants,

(4) (5) It was prejudicial to state that the conduct of

any of the conspirators might be considered as bearing

upon the criminal intent of any or all.

The vice is that the instruction was not qualified in any

way. The existence of a conspiracy and who are the par-

ticipants must first be shown. Admissions made after its

termination are admissible against the maker alone.

Brown v. U. S., Logan v. U. S., and U. S. v Irvine, supra,

The instruction permits the jury to wander with unfetter-

ed license to gather implications from circumstantial evi-

dence on a fundamental element of proof., e. g., intent to

join the conspiracy.

(6) The instruction that whether the woman trans-

ported went of her own free will is immaterial prevented

the jury considering that evidence in relation to whether

or not a conspiracy ever existed, and whether the defend-

ants had the criminal intent to transport her. The sta-

tute and the indictment (R. 3) state that the offense is to

‘‘knowingly’’ do certain acts, and the jury was entitled

to consider the evidence on that point.

SS

31

The effect of the charge, read in its entirety, is to leave

the jury in a confused state on vital elements of the case,

and to substantially prejudice petitioners in their funda-

mental rights.

This Court in Bihn v. U. S., supra, established certain

rules regarding what constitutes a correct, concise and

clear charge to the jury. It further established that the

giving of such a charge is a matter of fundamental rights

to the defendant.

The charge here misapplied the rules of that case and

resulted in denial of a fair trial to petitioners. On the

same authority petitioners contend that federal questions

of importance in the administration of federal criminal

justice are thereby presented.

CONCLUSION AND PRAYER

The United States Court of Appeals for the Sixth Cir-

cuit, in affirming without opinion the judgments of the

trial court, committed errors in ruling that the conspiracy

with which petitioners were charged had not terminated

prior to the occurrence of any acts allegedly connecting

them therewith and that a jury question was presented as

to whether they had become members of the criminal part-

nership. Further error was committed in approving the

charge of the trial court on vital elements of the case.

The rulings and approval of the charge decided federal

questions in a way probably in conflict with applicable

decisions of this Court, denied fundamental rights of

petitioners, and present substantial questions in the ad-

ministration of federal criminal justice.

Therefore, adequate reasons exist for issuance of a writ

of certiorari to the United State Court of Appeals for the

Sixth Circuit.

32

It is respectfully submitted that this case is one calling

for the exercise by this Court of its supervisory powerg

by granting a writ of certiorari as prayed, and the

after reviewing and reversing the decision. a

FITZGERALD, WALKER, CONLEY)

& HOPPING, 4

LOUIS M. HOPPING,

2256 Penobscot Building,

Detroit 26, Michigan,

Counsel for Petitioners,

PETER L. LaDUKE,

2256 Penobscot Building,

Detroit 26, Michigan,

Of Counsel.