Opposition Brief — Miles v. United States

INDEX

Page

Opinion below - - ----------------------------------------- 1

Jurtedliotion . .. . ... .. ~~ ~~ - + - 2 5 ee ne enn ne ee eee eens 1

Questions presented - - -------..---------------------------- 2

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Angement.......----------------- +--+ 22 oe oe ene 7

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. CITATIONS

Cases:

Cave v. United States, 159 F. 2d 464.______..____----.-- 10

Kulp v. United States, 210 Fed. 249. -.-.......--------- 9

United States v. Monroe, 164 F. 2d 471___.-_-.---------- 10

United States v. Reed, 96 F. 2d 785, certiorari denied, 305

MR ig oe SL RL CREE OS COLMA KAA nme enamieeh 14

United States v. Reginelli, 133 F. 2d 595, certiorari denied,

ST Mina < ctacaLCcbknkdhennskhcseteceomennae 14

United States v. Wilson, 154 F. 2d 802.__..-__-.-------- 10

Statute:

Act of June 25, 1910, c. 395, 36 Stat. 825 (18 U. 8. C. (1946

ed.) 398, 399:

BS PGi &tiin: ns acsianscuh Nid wc tclatarans Rae a lareanh A eee 2

aS niccntaidkmmhuan Satiigne Henk kon Misieda baowe ti 3

Miscellaneous:

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818714—48

Inthe Supreme Court of the Wnited States

OctToBER TERM, 1948

No. 437

BENJAMIN JOSEPH MILES AND MyrtTLe Lett MIzgs,

PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The Court of Appeals did not render an

opinion.

JURISDICTION

The judgment of the Court of Appeals was en-

tered October 14, 1948 (R. 95). On November

8, 1948, Mr. Justice Reed extended the time for

filing a petition for a writ of certiorari to and

including November 30 (R. 97). The petition was

filed November 29, 1948. The jurisdiction of this

(1)

2

Court is invoked under 28 U. 8. C. 1254 (1). See

also Rules 37 (b) (2) and 45 (a), F. R. Crim. P.

QUESTIONS PRESENTED

1. Whether the evidence established that peti-

tioners participated in the conspiracy prior to its

termination.

2. Whether there was error in the trial court’s

instructions to the jury.

STATUTE INVOLVED

The Act of June 25, 1910, c. 395, 36 Stat. 825,

18 U.S. C. (1946 ed.) 398, 399, commonly known

as the Mann Act, provided:

Sec. 2. That any person who shall know-

ingly transport or cause to be transported, or

aid or assist in obtaining transportation for,

or in transporting, in interstate or foreign

commerce, or in any Territory or in the

District of Columbia, any woman or girl

for the purpose of prostitution or de-

bauchery, or for any other immoral pur-

pose, * * * ghall be deemed guilty of

a felony, and upon conviction thereof shall

be punished by a fine not exceeding five

thousand dollars, or by imprisonment of not

more than five years, or by both such fine and

imprisonment, in the discretion of the court.

Sec. 3. That any person who shall know-

ingly persuade, induce, entice, or coerce, or

cause to be persuaded, induced, enticed, or

coerced, or aid or assist in persuading, induc-

ing, enticing, or coercing any woman or

girl to go from one place to another in

E-7" |

interstate or foreign commerce, or in any

Territory or the District 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 debauch-

ery, 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 car-

rier or carriers in interstate or foreign

commerce, or any Territory or the District

of Columbia, shall be deemed guilty of a

felony and on conviction thereof shall be

punished by a fine of not more than five

thousand dollars or by imprisonment for a

term not exceeding five years, or by both such

fine and imprisonment, in the discretion of

the court.

STATEMENT

The first count of an indictment returned in the

District Court for the Eastern District of Mich-

igan (R. 1-4) charged that on or about October 3,

1946, Ronald Woodling, alias Ronald Bradley,

transported, caused to be transported, and aided

and assisted in obtaining transportation for Lo-

retta Ann McDonald from Detroit, Michigan, to

Columbus, Ohio, for the purpose of prostitution,

in violation of Section 2 of the Mann Act (R. 1).

The second count charged that from October 1 to

on or about October 3, 1946, Ronald Woodling,

4

Kay Woodling, alias Kay Nordberg, and peti-

tioners conspired to violate Section 3 of the Mann

Act by persuading, inducing and enticing Loretta

McDonald to go from Detroit to Columbus for the

purpose of prostitution, thereby causing her to

be transported between those two cities as a pas-

senger upon the route of a common carrier.

Frank Glassman was named as a co-conspirator

in this count but was not indicted. (R. 1-2.)

The third count charged the same defendants with

a substantive violation of Section 3 (R. 3-4).

The jury found Ronald Woodling guilty on all

three counts, Kay Woodling guilty on. counts 2

and 3, and petitioners guilty on count 2 (R. 5,

88). Petitioners were each sentenced to two

years’ imprisonment and fined $5,000 (R. 6, 7)

and their convictions were affirmed on appeal,

without opinion (R. 95).

Loretta Ann McDonald was a young girl, 16

years old, who, in June or July 1946, had been

persuaded by Ronald Woodling to become a pros-

titute in Detroit (R. 13-15). Kay Woodling was

a prostitute who married Ronald Woodling

shortly after the offenses involved in this case

(R. 35, 36, 45). Petitioners were the operators

of a brothel in Columbus, a business in which

they had been engaged for 40 years (R. 50, 52).

During the summer of 1946 Kay Woodling had

been intimate with Frank Glassman, whose nick-

name was ‘‘Peck’’ (R. 37), and who was in the

taxi business in Columbus (R. 35). Glassman

5

testified that some time during September of that

year she told him that she was going to Chicago

or Detroit and ‘‘go back into the racket’’ (R. 36).

About October 1, 1946, Kay went from Detroit,

where she was then living, to Columbus to see

Glassman. She told him that she had met Ronald

Woodling, that he was a nice fellow, and that if

she could place a girl for Woodling he would give

her an apartment in Detroit. She asked if Glass-

man knew Benny Miles and said ‘‘she would

rather Benny had this girl because she wasn’t

very smart.’ (R. 35-36.) Kay returned to De-

troit the same day and at about 9:00 p. m. she

called Glassman and asked him to call Benny

Miles ‘“‘with reference to placing this girl for

Ronnie.”’ Glassman called Miles and told him

that ‘‘a girl named Kay from Detroit called and

said she would like to place a girl.’’ Miles told

Glassman, ‘‘Okay, send her; but first she will

have to have a physical.’’ At the same time Miles

gave Glassman his address as 2440 Groveport

Pike, Columbus. About a half hour later Kay

called Glassman again and he told her that Miles

had said, ‘‘okay, send her.’’ (R. 36-37.)

On October 2, Ronald Woodling told Loretta

McDonald that she was going to Columbus, Ohio,

the following day. That night he gave her $10

for train fare and a slip of paper on which was

written, ‘‘Benny Miles, 2440 Groveport Pike,’’

and a phone number, together with a message

Loretta was to give Miles; the message was, ‘‘I’m

6

Billie. Peck sent me.’’ Woodling put Loretta

on the train at the Michigan Central Station in

Detroit on October 3 at 1 p. m. She arrived in

Columbus about 6:30 and went direetly to the

address given on the slip of paper. There she

was met by petitioner Myrtle Miles, who admitted

her, saying, ‘‘Come in, we have been expecting

you, Billie.’””* Benjamin Miles told Loretta that

he had not expected her for twelve hours and

asked why she had not gone to ‘‘Peck’s place.”’

Myrtle Miles told Loretta at this time that there

was another girl from Detroit at the house and

introduced her to the girl. (R. 15-17.) Both

petitioners explained to Loretta what prices were

charged to the patrons of the house and that cer-

tain old customers, referred to as ‘‘neighbors,”’

were entitled to the rate of $3. They also ex-

plained the method by which the fees obtained

were to be divided. (R. 18.)

The following day, Friday, October 4, Loretta

went to the office of one Dr. Brown, where she was

examined and given a slip of paper which she

gave to Benjamin Miles. She worked at petition-

ers’ house until the following Tuesday, which was

her day off. Petitioners warned her not to tell

customers that she was ‘‘from out of the State of

Ohio as one of the men might be an F. B. I. man

or one of them might start talking to them.”

1In accordance with her instructions from Woodling,

Loretta destroyed the paper after her arrivai at petitioners’

house (R. 15).

—

7

Loretta was not permitted to make a long distance

telephone call to Ronald Woodling from petition-

ers’ house, ‘‘because the Federals might trace the

eall.”’ (R. 18.)

Petitioners also told Loretta that ‘‘the cops

were hot on their trail’’ and that they were going

to close on Tuesday. Loretta called Ronald

Woodling and he later went to Columbus, picked

her up at petitioners’ house, and placed her in

the house of Bobby Adams in Columbus, where

she worked for one night. (R. 19.)

ARGUMENT

1. Petitioners contend (Pet. 22-29) that the

substantive offense of inducing Loretta McDonald

to go from Detroit to Columbus for the purpose

of prostitution was complete the moment Loretta

crossed the Michigan-Ohio line on October 3, 1946;

that the conspiracy therefore terminated at the

same time; that the evidence showed that their

first contact with the other conspirators was the

phone call from Glassman and that this occurred

after Loretta had crossed the state line; ergo, that

the proof was insufficient to establish that they

joined or participated in an existing conspiracy.

The legal premise of this argument is, of course,

untenable, for the conspiracy continued at least

until Loretta arrived at her destination—petition-

ers’ brothel in Columbus—and we assume that

petitioners would concede that the proof showed

they joined the conspiracy before that time.

8

The factual premise of the contention is ne-

gated by the record. It is pitched upon peti-

tioner Benjamin Miles’ pre-trial statement to

agents of the F. B. I., which was introduced by

the Government, that Loretta arrived at his

brotliel the ‘“‘same evening’’ that Miles received

the telephone call from Glassman asking if he

could use a girl (R. 52). Petitioners argue that

since Glassman in his testimony did not fix the

exact date of the call, and since Loretta left De-

troit at 1:00 p. m. on October 3, it must be taken

as established by Miles’ statement that she had

already crossed the state line, one hour travel time

from Detroit, before Glassman calied him (Pet.

23-24). It is true that Glassman testified that his

conversations with Kay Woodling in Columbus

and by phone in Detroit and his call to Miles at

Kay’s request (see p. 5, supra) occurred ‘‘around

the first of October 1946’ (R. 36). But the

chronology of events as related by Glassman and

Loretta McDonald—Kay Woodling’s statement to

Glassman in Columbus that she wanted to place a

girl for Ronald Woodling and preferred to place

her in Benny Miles’ house; Kay’s call later the

same day after she had returned to Detroit asking

Glassman to call Miles; Glassman’s ensuing tele-

phone conversation with Miles when Glassman

said that “‘Kay’’ had called from Detroit and

wanted to place a girl and Miles said to ‘‘send

her’’; Ronald Woodling’s statements to Loretta in

Detroit on October 2 that she was going to Colum-

bus the next day and his action in dispatching

her on October 3 with a note bearing Miles’ ad-

dress and telephone number and the message,

“Peck [Glassman] sent me’’; petitioner Myrtle

Miles’ statement to Loretta upon her arrival that

they had been expecting her, and her introduction

to “another girl from Detroit’? who was at peti-

tioners’ house—-all point inevitably to the conclu-

sion that Glassman’s call to Miles aud Miles’

agreement to take Loretta into his brothel oc-

cursed on October 1 or 2, before she left Detroit.

Indeed, petitioners’ prior agreement was indis-

pensable to the consummation of the Woodlings’

plan to place Loretta in petitioners’ house. The

evidence plainly shows that petitioners knew Lo-

retta was coming and whence she came; that they

became parties to the conspiracy to send Loretta

to Columbus to engage in prostitution almost at

its inception.”

?In this connection, petitioners complain of testimony

concerning acts and declarations which occurred after Octo-

ber 3, 1946 (Pet. 26). Loretta McDonald's testimony that

petitioner Myrtle Miles told her immediately upon her arrival

on October 3 that there was another girl from Detroit at the

house (supra, p. 6), which pe.tioners include among the

allegedly inadmissible evidence, was clearly admissible as

showing petitioners’ knowledge that Loretta had come from

. Detroit pursuant to the conspiracy. Loretta’s testimony

that petitioners later cautioned her about telling patrons that

she was from out of the State and that she was not permitted

to use the telephone to call Woodling in Detroit because the

call might be traced was also admissible as showing peti-

tioners’ knowledge and intent. See Kulp v. United States,

210 Fed. 249 (C. C. A. 3). However, this latter testimony,

ee a

10

2. Isolating six paragraphs from the trial

court’s charge to the jury of approximately

twenty-eight pages, petitioners contend that they

embody five fundamental errors of law which re-

sulted in denying them a fair trial (Pet. 4-5, 29-

31). But petitioners did not make any such

objections at the conclusion of the court’s initial

charge nor at the conclusion of the supplementary

charge given as a result of suggestions by counsel

for the other defendants (see R. 85-86, 87) ; their

present contentions, therefore, come too late.

Rule 30, F. R. Crim. P.; United States v. Monree,

164 F. 2d 471 (C. C. A. 2); United States v.

Wilson, 154 F. 2d 802 (C. C. A. 2); Cawe vy.

United States, 159 F. 2d 464 (C. C. A. 8).

In any event, petitioners’ criticisms of the

charge are without merit.

They complain that the court omitted any ref-

erence to the requirement of transportation by

common carrier. The objection is frivolous, for

the court instructed the jury that it had been

stipulated that the New York Centrai railroad

as wel! as evidence concerning Loretta’s visit to the doctor

en October 4, 1946, her quarrel with another girl] at peti-

tioners’ house (R. 19), the termination of her stay at the

house, and her subsequent employment at Bobby Adams’

house, was withdrawn from the jury’s consideration on the

issue of petitioners’ guilt on the conspiracy count by the

court’s instruction that the jury was not to consider as against

them “any evidence relating to events which occurred prior

to Oct er 1, 1946, nor subsequent to October 3, 1946”

(R. 82).

ll

is acommon carrier.’ A few paragraphs later the

court alluded to the transportation element of the

conspiracy count, stating that the case involved a

conspiracy to induce the transportation for im-

moral purposes, and ‘‘That is the first element, an

object to be accomplished”’ (R. 66). The supple-

mental charge also specifically covered this point.

After reading Section 3 of the Mann Act, 18

U. 8. C. 399, in its entirety, the court said (R. 87):

Also I charge you that it is unnecessary

to show control of the medium of transpor-

tation by the different members of the con-

spiracy. It is sufficient if the co-conspira-

tors knew or should have known that inter-

state transportation by common carrier

would reasonably result and if it does.

Petitioners contend that the portion of the

charge in which the jury was instructed concern-

ing the duration of a conspiracy constituted prej-

udicial error in view of the legal principles

announced by this Court in previous cases. While

the court charged that a conspiracy continues

until consummated or until the accomplishment

*The charge in this regard reads (R. 66): “Now, it has

been agreed upon here that the New York Central Railroad is

a common carrie., and no proof was submitted, except the

stipulation of counsel. It that a correct statement?

“Mr. Thornton: Yes, Your Honor.

“Mr. Hopping [counsel for petitioners]: Yes, Your

Honor.

“Mr. Comb: Yes, Sir.”

12

of its object and that the question is one of fact

to be resolved by common sense and human ob-

servation and experience, the jury were also in-

structed that all evidence relating to events which

occurred prior to October 1, 1946, and subsequent

to October 3, 1946, was not to be considered as

against petitioners in determining their guilt or

innocence on the conspiracy count (R. 82). Thus,

petitioners have no basis for complaint, since

under this instruction the jury was not permitted

to consider evidence of incidents which occurred

after the day Loretta McDonald reached the desti-

‘ nation of her interstate journey, i. e., petitioners’

brothel.

Petitioners assert that the trial court erred in

neglecting to instruct the jury that one defendant

alone could be found guilty on the conspiracy

count,‘ since the count also referred to ‘‘other

persons to the Grand Jurors unknown’’ (R. 2).

But in view of the fact that there were four de-

fendants on trial on the conspiracy count and all

were convicted, it is difficult to understand how

the charge in this respect could have resulted in

any detriment to either petitioner. Under the

charge as given, the jury could have acquitted

either or both of the petitioners if they had

thought it proper.

* The court’s specific instruction on this score was as follows

(R. 85) :

“The second count is a conspiracy charge. You can 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.”

—

13

Petitioners have construed two sentences of the

charge to mean that the jury were told that the

conduct of any of the conspirators might be con-

sidered as bearing upon the criminal intent of

any and all. This is not only a misconstruction

of the fair meaning of the language employed

in the two sentences to which reference is made

(Pet. 4-5), but it also ignores other portions of

the instructions relating to criminal intent (R.

69-70, 75). The wording of the two challenged

sentences, when considered with other portions

of the charge, can have no other meaning than

that the acts, conduct, declarations, and admis-

sions of each defendant might be considered to

establish intent as to the defendant who per-

formed the acts or made the declarations or ad-

missions. Furthermore, when the charge is

considered in its entirety it is apparent that the

jury were fully instructed as to the importance

of criminal intent and the manner in which it

could be determined. The jury were told there

must be criminal intent to violate the law, that

intent might be established by circumstantial evi-

dence, that there must be a concurrence of acts

and intent, and that they were to ‘‘consider all

these facts and circumstances of the case which

touch the conduct of the particular defendant or

defendants, as well as all the evidence introduced

by the Government concerning any of the defend-

ants’ declarations or admissions, if believed by

you and sufficiently proven.”” (R. 75.)

14

Finally, petitioners contend that it was preju-

dicial to charge the jury that it was immaterial

whether Loretta McDonald went to Columbus

of her own free will. But this was a correct

statement of the law. See e. g., United States vy.

Reed, 96 F. 2d 785 (C. C. A. 2), certiorari denied,

305 U. S. 612; United States v. Reginelli, 133 F,

2d 595 (C. C. A. 3), certiorari denied, 318 U. 8.

783.

CONCLUSION

The judgment below is correct and the case

presents no conflict of decisions. We therefore

respectfully submit that the petition for a writ of

certiorari should be denied.

j Pump B. PErRiMan,

Solicitor General.

ALEXANDER M. CAMPBELL,

Assistant Attorney General.

Rosert S. Erpauxt,

JaMES W. Knapp,

Attorneys.

J ANUARY 1949.

U.S. GOVERNMENT PRINTING OFFICE: 1949