# Petition for Writ of Certiorari — Harms v. United States (No. 602) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0137%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1959 ## Text = - saa aa y ie: soled = | - aciilih aii it LE COPY |. : FILED | ong tps reas ‘1 DEC 21-1959 ms BROWNING, Cloth |. ; bh The «= SUPREME €OURT OF THE UNITED sr, ATES = OCTOBER TERM 1959 | No. 6 0 2 CATHERINE LOUISE HARMS. Petitioner ' UNITED STATES-OF AMERICA, Respondent ° + ~ “PETITION FOR A WRIT OF CERTIORARI TO THE : UNITED ‘STATES COURT OF APPEALS j FOR THE FOURTH CIRCUIT | Rosert G: Doumar 550. Law Building’ Norfolk, Virginia FREDERICK T. STANT ‘700 Board of Trade Building Norfolk, Virginia Counsel for Petitioner ° ® © e, . . . - rs . . : é *. 4 ° ‘ & A . 6 y : ° 2 ’ See < ® __ tae | ~INDEN = : ° , » - d x . , - : ; ° Psrere 2 Opinions Below | er ee we ie ne os Tenet & i? » es Jurisdiction ee ean : (ires stions. Presented —® ae : 2 Statrites an witlatio wlasolved) re aemerede and Kee 1 Lag . “SQARETIICTIE . o. o.-: nnn e ceca tecwee nese eee nega eT egeateeteorenedensserees tae oe ’ : TE ocean ease oi BE ss aa : Introduction ......... Lk VED aa, | Perey eee seis - Wliether.it is Essential that the ‘Government. Show thay the. | Petitioner “Knowingly Caused” the Girl to , Travel by Interstate Carrier. ....... A TEESE Gren Sad 7 - oS Sg een | MRSDECD EES OS Mier | AUTHORITIES een. CASES: ee ak ; Alpert v. United States, 12 F2d 332 (6th Cir. 19260)... &° Bell v.-United States, 349 U.S. 81 (1955) oo. ay Ex Parte Public Nation: ul Bank of N. Y., RN U.S: 101 (14928) eer. 2 EE ON Ee eee 10 (sloucester_ I = ere. ial ore S. T96" sing (1885) abiieamei SNe ee LR a A acu tanailenepannses 13 ‘ Hatrison v. Vose, 50 U.S. 396, 9 vis 372 (1850) —.. 10 Tee -¢ y. United States, 227 U. S. 308 (1913) .......----- 14. “\ LaPage v. - United States. 146 F2d 536 (&th Cir. BOGS Poo x nnd nn nncck So nets wee ePesnelp iat teterccroresenecegeebeweontae 10 Moffit v- Uriited States, 154 F 3d 402 ( 10th Cir. 1946) .. 16 Sixty -two Cases of Jam v. United States, 340 _$, 598 —_—— (195 ee IE an eon 17 _ United States v. Bianco, 163 F: "Supp. 867 (Ww. D. Pa. : I aS caches eas oem seninnachenccncitnmensenasonnabeoupenaneed a. United - States y. Saledi mis, 03 F2d 302 (2d a | CLD BE Ay Reale ae , 140 ——" Wagner v. United States, ‘WI 2d 354 (6th Cir. joa | Sa TT a saanpencncomengte conMcnissc- f° HP fot mi . @ \ ah Page” Washington Market Co. v. Hoffman, 101 USS. 112° = IBZ). ceec Bone ci ten emetic cads ok 10 Wilson v. United States: 323 v. S. 563 1914) ieee 7. a “Statutes: is ora” RESCA Bt ............ aie Angers. OE, I icv ccdecties sess sg he Secathioe 7 18 U.S.C.A. $399 oocsseccsenssscseene ‘siccciad sedi ee 18 U.S.C.A. §2421 ....+.....2...0 lesaccane secacsossssnabyeedios "7 8, 9 Mk ot en nS SS eS IR USCA, $2428 hansen 3 Treatises: : ae a : * = 7 Statistical Abstract of the United States, 1959, U. Dept. of ‘Commerce, : Bureau of Census suciediedibcasiute = \ 45 e ae \ me 4 ¥ oo | o Bi fi 7 The © SUPREME COU RT OF, THE UNITED STATES OC TORER TERM 1959 An a No. . 4 € ATHERINE LOUISE: HARMS. Petitioner re ne \; = ee eee UNFFED STATES OF AMERICA, ‘Ke spondent _PETITION FOR-A' WRIT OF CERTIORARI TO THE —// "+ UNITED STATES‘COURT OF APPEALS / FOR THE FOURTH CIRCUIT. ~~ 4 : ¥ yx N \ : 3 Ks (; athgrine Louise: Harms, your Netitioner, prays: Aion’ a / writ of vertiorari isstie ‘to review. the judgment of the ‘United States Court. of ° Appeats” for the ‘Fourth Circuit, | entered ia the above ‘entitled case on November 20). 1959. Fé er Q OPINIONS BEL “an _. The opinion of the: United Stafés Court of ‘Appeals for - the Fourth Ciréuit is pane this time to your peti- | tioner” s knowledge and a copy‘ts att ached hereto, ‘Phe opin: ion’ of the United States District Court: for the Eastern - District of Virginia ip set out-on page 6 of the appellant's appendix. | * : od ee JyRisnic TION (ass . S The judgment of the. Court. of "Appeals vi Was entered on * November 20, 1939:-and the jurisdiction of this Court .is -invoked under the provisions of 28 U.S.C.A., $1254 (1). QUESTIONS PRESENTED Ww HETHER Ir. Is EssENTIAL ‘Twat THE GOVERN MENT Suow Twat THE PETITIONER “KNOWINGLY CAUSED” tHe Girt TO TRAVEL BY INTERSTATE CARRIER. e Qa : : Ld k Sia TUE ES AND REGULATIONS INVOLVED r US.CA. § 2422. ds as ictows: a “Whoever, tense persitades, induées, entices, or - coerces: any woman or girl to go from one place. to another in interstate or foreign commerce, grin the > District of Columbia or ii any Tetritory-or “Possession of thé United States, for the neg sis conten or debauchery, or- for any other immoral purpose, « with the intent and purpose on the paft of su¢h nec 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 - thereby knowingly causes such woman or girl to go and -to be carried or transported as a passenger upon tine x line or route of any common ‘eurtion or carriers -in interstate: or foreign commerce ‘or. in the District of Columbia or ine any Territory or Possession of the ‘United States, shall be fined not more than $5,000:00 = ee not.more than five years, or both, June 25, 14S, ¢ >. O45, yO2 Stat. 812.” * STATEMENT Catherine Louie Harms, ‘Ruth Twisdale ( ‘ousins and_ Connie Jean Day wet named as defendants in a five count. indictment charging. violation of the white slave Yraffic act. Harms was charged on each of the first four counts with ' substantive offenses.- The first count charged her with vidlation of 18 U.S.C.A. §2423. involvi ring a minor female, — Sandra. G..Ulrich. The Second count ‘charged her. with violation of 18 U.S.C.N. § 2422 alleging’ the inducement of Josephine Bruno. The third and a counts: charged _ violations of 18 U.S.C.A. $2422 involving Linda Faye® Ponder and a woman. named therein as Anne M iller, respectively. The fifth count which named Cousins and Day aléng. with Harms as defendants chargétl a conspirac y uncer 18 U.S.C.A. $371. te commit offenses in violation of the acts referred above to,coverigg the period from: Novem ber, 1955, to a? 9 of-the indictment. “At the trial, the District Court acduitted the defendant, Harms, on the first count of the indictment gn moticn of the Government. At the conclusion of the Government’ s. evidence, the District Court granted the defend:nt's: nic tie m. ‘ora judgment ef acquittal-as to the fourth count as well -as the motion for acquittal of the third ‘defendant:.Connic: jean Day, on the fifth count. The jury returned, a verdict | of Fc on the 2nd, 3rd and fifth counts as te the defend- . Marms, ang § a verdict of guilty on the fifthsconnt as t» Ochiai: C ousins. The District Court * denied: the defendants’ motion to: set aside the verdict and entered ifdeiment of conviction ot both defendants from Ww Akh . > nes appealed. Ne . Fe, The Circuit Cowrt of Appeals for the Fourth Circuit reversed the conviction of Cousins.om the fifth.count of the . ~~. ue ——s ‘ 7 2 ss penaacedl indictnient . and found that Harms was: i ietenoperty cone vic ted on counts three and tive of the indictment. The con viction. ofthe second count, which. ts the only count re’ mainitig, alleging the: inducement of Josephine Brune Wits aflirmed be the Cireuit ‘Court. — Bho" ae ee a ‘Josephine Bruno and Catherine Louise. Harms had lx come acquainted in L955 and from that time until January” 1987 ‘Brune had worked as a prostitute for Harnis‘in Nor-. foik on several occasions. In November, 1956, Bruno leit, Nor folk with’ the undérstanding that she would return’ to Norfolk to resume her work there in January, On January 2 or 3, 1957, Harms made a telephone call to Bruno in ‘Atlantic City, New Jersey, and Brune agreed to bein Nor folk to work on Janusgry 7 1957. . . The Government provided no. evidence to -show that *Harms knew how Bruny was to come to Norfolk unde what method or means. Harms sent no money and gave-no- ‘instructions to Brune; in fact, all that Harms did was to tell Bruno to come on back to Nor folk..Although, Bruno had been in’ Norfolk on many occasions, it was not shown how any previous krips to Nortolk were made; nor was it show) how Bruno Could have traveled’ by some « ther 1 means, The. only thing thet Harnis told, Bruno was that Harms had ic place for Bruno’to work. It was shown to Jhave been conr mon practice, for Bruno ta call orto be called to go to work» in various areas.’ In fact. if Bruno had: not been talled by | Harms to come to work, Bruno would have catled som one in order to work ‘somewhere. Appellant's appendix— “pages 39 and 40. Thus, the only thing Harms told Brin .was that she -had a‘place for-B TLIO tormaintain her pro fession. It wassadmitted. that the Gov ernment did not sho that ‘Harms knowingly caused Bruno to travel by interstate carrier, . ¢ . . Ty: . ARGUMENT. s \ “EN tRODECTION _ Under the statute ‘now in question 28 U:S.C.A. § 2422 the following elements ‘ate set forth: that (1) whoe, er know ingly . . Induces .. .any woman . . to go from one place to another in interstate .. . commerce... ., (2) for the “purpose ,. of prostitution . . Q) and thereby knowingly causes such womar. .. to go and-to be carried! upon the line or route of any common .¢ ‘arrier . |. in interstate 6 eee commerce. (italics added ).'F or the ‘purpose of this: petition, it is admitted that Catherine. Louise ;-Harms. knowingly indticed Josephine Bruno to go’ from one place to ane ther in. interstate commerce -for- the purpose. of prostitution. This, clearly, elements one -and, two-of the statute were: proven, It was shown that Bruno traveled by an interstate common cafrier in interstate commerce. 1 2 "The Circuit Coutt ‘ot: Appeals held, in an opinion by Field, District Judge, that since element one of the offense Was shown, 1. ¢.,.a knowing inducement to go from one pl: ice to. another in interstaté commerce, “It was not neces- sary for the Government to-go further and’attempt to Show “that [hirms kiiowingly ‘caused the victim to travel by come + mon carrier either by direction.or know ledge that the victim, Bri, would use that. mode of transportation. * (Opinion ~p. 4) Thus, the C ircuit Court held that an essential element of a criminal statute would not have to be proven. The opinion went an-ig state: “The knowing persuasion te. mike the interstate trip, of course, must be shown with Son w degtee of particularity, but once the - ‘knowing per- . a carrier, Thus, the question is w hether the-government must. . _ show. that’ Harms ° ‘knowingly catised” Bruno to travel by é “ ¢ . be . t : . f . bad 4 * * a * - ‘ * e ‘ f x £ ™%* . ‘ . 6 ps * ‘ ° Se stasion has been shtwn, if the trip by interstate carticr folk ws. the offense is complete, shee ih onli / ’ ~~ oe T he Cirenit Court hased its decision on a case which had “noe facts and no stenc graphic report, United “States v. Yaledonds, 93 F 2d 302. «2d Cir, 1937 ), and ev en extended the obiterictum of that case. This’ was, an acceptance or Cx wvernment s submitted proposition which was “that the” dérendant knowingly induces the ‘victim’ to travel inter- state foraninimorel purpose aid by that means... Cattses the ictime to tritvel by & minon carrier.” (Appellee’s Brief pp. SS) i. ; ° ; ria The boistrict, Court-in its opinion states as fellowes: spe: tk ing of the Suledonis case sti ates a : a ach nibtedLy it must be shown.that the woman or. war irt did travel in interstate commerce as a passenger of a ‘common carrier, but the knowledge and intent as te this phase Gf the case becomes tinimportant as far as, the accused is coneerned. Day , aa Lut for the Sale donis opinion, $j isnot unlikely that this Court Woitld take a different view as to defend: ant’s motion, Undi tabtedly Saledonis ign ires the plain words of Pho St: ituite by construing the ords * ‘thereby’ knowingly” so as to relate back to the intent in the original inducement. ( — S eee” p. S) At Is apparent that through some use of stalls th: it an esse tial statutory element is completely eliminated. | deed the Cireuit Court did not bther with sophistry sie clearly, held the word “knowingly” 4n_ the phrase “know- ingly causes” to be supertluous, meaningless and. effectively deleted it from the statute as drawn by Congress. Rs Wuetuer It-is, EssentiaL THAT THE GOVERNMENT Suow THAT THE PETITIONER. “KNOWINGLY Cav SED" THE GIRL TO » TR. \WEL BY INTERSTATE CARRIER? ° ° The y ‘Mann Act” or the “White Slave Act” is a very broad statute. Section 2421, Zormerly 18 ULS.C.A. $398. ‘deals with, trarisportation generally “and ‘does. not invlve - ‘a common earrier specifically nor réquire transportation by ‘common carrier. Wilson v. United States 232 U.S. 563 (1914). Section 2422 formerly 18 U.S.C. $399, deals with transportation by a common carriet. The statutes differ in, requirements. Thus, it has been held antl generally followed that Sectiga 2421 and Section 2422 are separate and dis- ~ tinct offenses and.that one trarisaction can give rise to a violation of both sections, both of which can be’ punished -eparatily as distinct crimes. H’agner vy. United States, 171 Fd 354, 3604 (5th Cir. 1948) cert. den, 337 U.S. 044. There are several distinctions between Section 2421 and Section 2422 and for: the sake ‘of clarity they are set out ., side‘by side as follows: Sw, 63 Seat. * "$2421. the United States, im or foreign commerce. District of Columtja or any Ter- Transportation generally Whoever knawingly transports in interstate or foreign commerce or in the District-ef. Cok mbia or in any Territory or Possession, of the United States, any woman or girl for the_purpose of prosti- - tution or debanchery, or for any other immoral purpose, or with the intent and purpose to induce, entice, or compel such woman or firl to become a prostitute or: to wive herself up to debauchery, or to engage im any other immoral practice; Or, -Whoever knowingly procures or obtains any ticket or tickets, or any form of transportation or evidence of the right thereto, to he used by any woman or, gitl-in interstate or foreign commerce, win the District of Columlna or any Territory or Possession of any place for the purpose of pros- titution or dehauchety, or for any other immoral purpose, or with the intent or purpose on the part of such person to induce,-ertice, or compel her to give hesself up to the practice of prostitution, or 1 give herself up to debauchery. or any other. immotal practice, _whe reby any sueh weman or girl shall be transported in interstate — or in the’ ritory or Possession of the U nited States—— Shall be fined not more than $5,000 or imprisoned not more than five vears, or both. June 25. 1948, ¢. OAS. 4 fe Stat. .&12, amend! May 2°, 1949, ¢. WS * induces, going to” > +. $2422. Coercion or enticement of female —\WWheever, knowingly _perstiades, entices, Or coercesany woman Gr girl ‘to go from one place to another. in interstate or foreign commerce, or in the Dis- trict of Columbia or in any Terri- tory or Possession of the United - States, for the purpose of prosti- tution or debauchery, er for any other immoral purpose, or with the intent and purpose on the part of such person that such weman or girl shall engage in the practice _of prostitution or debauchery. or any other immoral practice, whether with or without her con- sent, and thereby. knowingly ‘causes such woman or girl to go and to be carried or transported #S a passenger upon the line or route of any common carrier or carriers in interstate or foreign conmer¢e, or in. the District of Columbia or in any. Territory or Possession of the United States, shall be fined -not more than $5,000 or imprisoned not more than five years, or beth. June 25, 1048, c. 645, 62 Stat. 812. ' j ? . cr) Under Section 2421 there must be more than a mere in- ‘ducement or enticement. It is essential that greater pe. - suasion or coercion be shown. LaPage vy. United ‘States, 146 F2d. 536 (8th Cir. 1945). Moreover, under Section | ‘2421, the transportation need not be by common carrier ‘but can be by private vehicle. Wilson vs. United States, supra; Sloan vs. United States, 287 Fed. 91 (8th Cir. 1923).. However, under Section 2422 transportation by automobile is not punishable. Alpert vs. L ‘nited States. 12 F2d 352 ( 2d Ci ir. 1926). From a perusal of both Sections of the code, it can -be seen that there are other distinctions, in the statutes. The final clause of Section 2421 provides *. .. whereby any stich woman or girl shall be transported in interstate or foreign commerce, or in the District Of C olumbia or any Territary or Possession of the United States—". Whereas. the final clause of ‘the statute in question, Section 2422, provides “. . ..and thereby knowingly causes such woman or girl to go ind ty be carried or transported 3 as a passenger ‘upon the line or ‘route of any common carrier or carriers in interstate or foreign commerce, or in the District of Co- lumbia or in any Territory or Possession ot the United States. . .”. It-cdn be seen.that in one section the plain, ward “‘w hereby” is’ used, and 4 in the section in question the words “thereby knowingly causes” are used. The differ- ence in the wording of-the statutes, standing alone, ‘is SUt- ‘ ” ficient to sustain the petitioner’ s position. “The following construction’ was Placed upon Section "2422 by the Circuit Court: “The knowing persuasion to make the interstate trip, of cOurse, must be shown with some degree of particularity, but once the knowing per- suasion has: been»shown, if the trip by interstate carrier follows, the offense is complete.” (Opinion p. 4} “This ¥on- a \ the W hite Slave Act: | ; o-- | aoe struction makes Section 2422 read“... and thereby such ~woman or girl is carried or transported as a passenger “upon the line or route of any common carrier, ete. 3 instead of “and thereby knowingly ‘causes stich wonran or girl, ete.” TPhyfs the: judiciary has effectively legislated. “Congress used particular words to convey particular mean- ‘ings, which are ignored, in construing a statute, one of the most well accepted °° _ Propositions of law is that cited in LaPage vs, U.S. 146 F2d 536,538 (Sth Cir, 1945), where they were discussing In construing this provision of the two sections we started with the rule that a-statute should be con- strued so té give effect to all of its: sane ‘In Ex parte Public National ‘Bank of New York 278 U.S. 101, 104, 49 S. Ct.-43.44,73 L. Ed. 202 is stated: “No rule of statutory construction has been more definitely stated or more often repeated than, the eardinal rule that significance and effect shall. if pas; .-— - sible be accorded to every word. As e arly as Bacon's Abridgement, section 2, it was said that ‘a statute ought, upon the whole, to be so construed that, if can be prevented, no clause, sentence, or work shall be superfluous, void or insignificant’. Ww ashington Mar: ‘ ket Company. vs . Hoffman, 101 US . 112,115.25 L. Fd. 782”: ° This rule is so strong in penal statute that in the cage of Harrison vs. Vose, 50.U.S. 396, 9 Howe 372, 378. there Was a question concerning. the meaning of the word “ar- rival”, The Court stated “In the construction of a ‘penal Statute. it is well settled, also, that all Teasonable doubts 7 = se | ae “ >» . concerning its meaning ought to operate in favor of the - respondent”. Accordingly the court felt that there was a doubt in the meaning of the word “arrival” and c mstrtied the doubt in favor of the defendant: and directed his ac- quittal. Therefore, if there is any ‘doubt concerning the Ty word “knowingly”, this’ doubt must be construed in the detendant’s favor. . . _ There. can-bé no question that any doubts in the con- struction or application of a criminal statute should be re- @ oo: a solved in. favor of the defendant. Bell vs. United States, 349 ULS. 81 (1955). bre How. there can Sut win concerning the interpreta- tion of Section 2422 is beyond Yie undersigned’s Gompre- hension, A plain reading of the statute would require that knowledge be proven. Indeed it has been only recently that. any other construction ‘was plausible. Inno report@d case under Section 2422, to the undersigned’s knowledge. have . the facts failed to establish that the defendant “knowitigh ° vaused” the girl to travel by interstate carrier. The gov- bs . ernment was unable to cite one to either the District Court | or to-the Circuit Court. Either money, agency or direction . has always been present as evidence against the defendant. In fact, in earlier cases it was urged that the forerunner | oof Section 2421. not the section-in question, required the . 2 government to show that the defendants either directed or “te knew how the victims were to travel ‘interstate. whether in ‘private vehicle or through a common carrier. Thus jin - Hilson Vsal!nited States, 232°U.S. 563,566. (1914). the tollowing is stated: ! : ees Pees There were numer us counts in the indictment, ancl , “general verdict of guilty. The substance of the charge Was the defendants caused and procured two girls to | re transported in interstaté commerce trom Milwartkee. Wisconsin, te Chicago, Hingis. fer the purpose +! prostitution: There was alse a comnt charging a com spiracy to commit the same otfensé. The theory of the Government. sufficiently stated in the iridictment and supported by evidence at the trial was that ine pur osuance of an understanding between defendants and me aman named Corder, they gave him eleven-dollars in money, with instructions to proceed from Chicago to Milwaukee, induce one or doth of the girls to returt, with him te Chicago, paying’ their transportation and other expenses out of the eleven dollars, and bring: . theme te a house ef prostitution in the latter city kept by the defendants; and that Corder carried out these instructions to the letter, bringing both girls over ‘an interstate electric railway line and escorting them to defendants’ house for the purpose. of prostitution. Ot the questiine at law that are raised. only the following seem fo require mention : S st “- o , }. It is insisted that the offense was not) full proved because there was nothing to- show: that “de ; tendarits either directed or Krew how .the girls: were to come from Milwaukee to Chie: age, whether in a private vehicle or through the instrumentality: of + common carriér, But, in our opinion, in ordef te con stitute an offense under ‘the act it is not essential thet the eran ation bé by common carrier. The statnte reads: “That any pegson whe shall kn wvingly trcrispeort of cause to be transported, or aid OF ass st in obtrinitig transportation for, or in transporting, in interstiie foreign commerce, .. any weman or girl tor the pur Aid: of prostitution or debauchery. or for any other » * # c ‘ ‘immeral purpose, . . . or who shall knowingly ‘ga cure or obtain, or cause to be procured or obtained, « ail or assist in procuring or obtaining, any ticket or tickets, or any form of transportation’ or evidence of ‘the right thereto, to be used by any woman or girl in “mterstate or foreign commerce, es going Jo any place tor the purpose of prostitution or debate hery. tor any other immoral purpose... . whereby any such woman or girl shall be transported. in interstate or foreign commerce, ©... shall be deemed guilt voof it ielany.” . ete. . ge , rhe prohibition is not-in terms contined to trans portation by common carrier, nor need sucha limits tion be implied in order to sustain the constitutic mtality of the enactment. As has alre: idy beet “lecide “dat has) the quality of a police regulation, alytough enacted in the exere ise of the power to regulate, interstate com. merce (Hoke United St: ites, 227, US. 308. 323. Gloucester ens Co, vv. Pennsvivania, 114 ULS. 196- 215). and since this power is complete in itself, it was discretionary with Congress. whether: the: prohibition should be extefided ta transportation bv others than: common ¢ arriers, The aitentivi on that- defendants were not within. the _vrohrbition of the act hecause they did not control on instruct Corder in the choice of means of conv evance is not worthy of serions consideration. \ceording the Government's evidence, Corder was emploved fh defendants as their agent, and furnished bv them with “money sufficient for the expenses of the transport: tion. but without detinite instructions as to:;what mer! sboukt be emploved, A natural inference was that he * 14 should decide upon the mode and select. the route: and th: it such selection was within the Scope ot his a ALLENICN ‘iti tlic s audded ) , . : 2 *e¢ In st Case ‘of Habe Vv _ United States, 327 U. S. 308. 324 (1913), the opinion, stated where the defendant urged thiit “The evidence does nat show. that the defendants or either of theni induced, ete., . the Women to become passengers in inte rstate commerce.” The Court went ‘on to state: “The partic ulars are recited wherein it is contended that the evi denee is deficient. It was for thggury te detertftine .. . ete.” Thus, it. iwas always assumed that the government must show know ledge or direction on the part of detend: int: mo) “the mode of travel employed by the ‘victim. ° The basis for the government's position is the Case ol” i nited States ¥. Saledonis, 93 F2d 302. 304 (2d Cir. 19 37 \. wherein the Tallow ity statement was made : It is alse suggested that there finuist be some direct cact showing an intent on the part of the inducer: thea the transportation shall be by common carrier. This section does not say 'so, but, plainly savs that'one who induees and who. shall “thereby ykn wvingly cause’ inte Tstate commere c by common cartier Is’ guilty of the offense, if such transportation follows. An affirmatiy « ‘directive act is*nat involved. The inducement in’ an’ cat itself, without consideration of intemt and with to further direct act. is the moving cause of, wh it follows, The inducement may: be any offer sullicigpt to -cattsy the woman te-respond, The inducement Sets In mite n the successive acts that constitute the crime. It is un necessary to show -control of the medium a Tite portation by the inducer. It is sutheiont if the acetsed we a: : 1S te yet knows-or should-have known that interstate transporta- 3 tion by commen carrier would reasonable result and if it does. Peers ye . , The Court in the excerpted case states.at page 303: “THE TESTIMONY WAS NOT TAKEN STENOGRAPH- ICALLY AND. THE RECORD ON APPEAL DOES NOT CONTAIN THI EVIDENCE: ADDUCED AT TRIAL’. What “direct act” the Court is speaking of*is pure conjecture, How this abstract stateme nt of law applied- ty the facts in that case és beyond the deterntination of the undersigned and it would appearthat only speculation could resolve its application to the-present case, How this could be at authority for the removal of a word from a statute perplexes your oratut, The submitted pre position is in direct contravention to the cases. Moreover, Harms, the petitioner herein, could not have known that interstate transportation , hy commen carrier would reasonably, result. Harms called trun on January 2 or 2’ The call was made from Norfolk, Virginia, te Atlantic City: New Jersey. a distance Of bess than 250 miles. Bruno came to Nortolkgn January 7, 1959, minimum At tour days after the call. Lf Brung had come: one hour after the eall, then Harms may have been charge “ With knowledge that B ruin must have used air transport. L tion. Butawith ever 6& million motor vehicles in the United Sti Hes Ntatistical \Abstract of ‘the United’ States, 1959. US. Dept! of Conia. Bureau of Census, p. 359, it would be ¢ asomable to assume that Bruno would: travel: by ante: 1 obi “on the super highways betweeh Norfolk and Atlantic ( ‘tty e a's PERS The government: relies heavily on) the interpretation. pluced on mail fratid statutes: It is submitted that the mai! statute is Not analogous since it encompasses a completely: : . ® ‘. 7 Me . Wy al and traditions in Certain businesses. Thus: 16 : s different field relative to the-conduct of ‘ordinary busine~< and the use of the mails. necessarily entailing’ the’ custom. in Moffit v. United States, 154 F2d 402, 406 (10th Cir. 1946):-it was stated in dismissing ¢ one of the counts against thelfefendant as. follows: ay . .As pointed out above. ‘when eaciens caused the collection item to be sent through the mail he’ was chargeable with the use of the mail by: the correspond- ent bank in notifying the Blackwell Bank that the item had been paid, because. as a man of ordinary business experience he knew that it was’ established custom or — the banks to usé the mails for such purposes: It cannot: however, ‘be said as a matter of law that it is a well- established custom of which men of ordinary business experience would have knotwledge. that banks require in addition to the ordinary and customary notification rae notification by ‘telegram and further con- ' mation of telegram by one. Hens a person of ordidary experience would expect that travel would be by private autgmobile. The ordinary course of travel in the United States is by. automobile. This is so . extensive that the railroads are going out of the passenyer hauling business.' The mail statute and the white slave statute are not analagous. The question volved fherele hinges on the ae \tiori of the statute. SHOULD THE STATUTE BE IN “FERPRETED ‘AS IT IS WRITTEN OR te hee DA “WORD BE EK L IMINATFE D?. The statute requires that the defendant . knowingly i duce the victim to travel interstate for an immoral he e ‘ \ e ; a - and thereby kr wingly cause the victim to trav el by com- \ “mi m carrier a __As was seen by the JVilson case, supra, where the statute _ provides merely transportation without limiting the type “te common carier then the defendant need not have the knowledge of the type of transportation whether by com- “mon carrier or private vehicle. It, therefore, would seem — that the converse of this would be true, i.e. where the statute limits the transportation to a common carrier, then. the knowledge of the type of transportation must be shown. The word frie wvingly would normally require a perception of the facts requisite to makeup the ¢rime. Seé Ul’. S. vs. . fence o 103 F-: Supp: BO7 OW. D. Pa. 1952). T he government contended in the Circuit Court th: ut the word “knowingly” as used before the word “causes’ relates back to the inducement or persuasion.. If this is so, why w aa\the werd knowingly alse used befUre the word “persuade” in the statute ? In fact, the government -sub- mitted to the Cou low that the word “kn Avingly”*-can be omitted without changing the statute. Y he Cireuit Court. accepted the government's contention and omitted the word, ° The Circuit Court by elimimating this word effectively ‘violated the constitutional ‘privilege against er post facto laws. Every ‘person is entitled to: know in advance what acts will constitute a crime. It is not the court's duty te write iw or omit words a€ is stated in 02 cases of Jam v.* oS. 340.0, S. 593 (1951): o but our problem ts te construe what Congress has written. After all, Congress expresses its: purpose. by. ‘ aw” words. [t is for ug to ascertain—neither to add nor to subtract. neithar to'delete nor. to’ distort. ; we pies. 7 ‘Tn our anxiety to effectuate the C ongressignal 1 pur, pose of protecting the public, we. must take care not to extend the scope ‘of the statute beyond the point Z where Congress, indicated it would stop. It is ‘peapettidly’ urged that the statute be interpreted ; as it is’ w ritten. It is the province of the law to define with "clarity Or-how:else.can a lawyer advise a client. If it were the intention of the Constitution that the Court. could re- write‘a criminal statute’ by omitting a word then drafters Wasted.a lot of time prohibiting cr post facto laws. Your orator emphatically ‘urges that the obiter dictun of the Saledonis case not be followed. It is impossible ty determine its: application. As the ‘Honorable Trial C ourt stated: “Undoubtedly Saledonis ignores the: plain words. of the statute by construing the words ‘thereby knowingly" SO as to relate back to the intent in the original induce- ment.” The Court stafed that except for the Saledonis case. “itds not unlikely that’ this Court would take a. differen; “view as to thedefendant's motion.” (Appellant's Appendiv: p. 8) Thus, the Trial Court and the Circuit Court seem to . indicate that the Judiciary can successfully amend a sti Unite, It is: respectiully submitted that Congress should amet _ Its Own statutes if it wants. so to do, ni k .¢é . a . . od CONCLUSION The ruling below ‘injects ancert: ainty and in ICONS Hstenete into the interpret ation of. the Mann Act. For over titty years everyone, assumed that the government must prov, . sie ace & Norfolk, Virginia ; ¢ % . 3 , . 7 19 F under 18 U.S.CLA: $2422 that the detentions bither directed | oor knew how the vickhin would travel, whether by comnx m ae ‘carrier or private cony eyance/Now on the hasis of adecision | _of another Circuit where no facts or stenographic “rpport aay was ay ailable, the Fourth: Circuit’ has seen fit to upset a construction previously accepted everyw here, If the present: case were alloggg@ to stand, then it would be an invitation : Jor ev ery Cr url in, the land to engage in jtidicial - a | Respectfully submitted. Ropert’ G. Dov MAR 550 Law Building Norfolk; Virginia . te ) i see " FREDERICK T. STANT. - 700 Board of Trade Building Counsel for Petitioner . . « . “8 - | UNITED STATES COURT OF APPEALS. FOR THE FOURTH CIRCUIT | No. 7943. ? ¢ CATHERINE LOUISE HARMS and | RUTH TWISDALE CQUSINS, Appellants, . Versus » ‘ UNITED STATES OF AMERICA, Appellee. APPEAL FROM THE UNITED STATES District CourT FOR THE EASTERN DISTRICT OF VIRGINIA, AT NORFOLK. Wa _teR E. HorrMan, District JupGE. (Argued October 7, 1959. Decided November 20, 1959.) ‘Before Haynswortn and Borewax, Circuit Judges, and FIELD, District Judge. 6 = : Robert: G.“Doumar and. Frederick T. Stant por Appellants, and John M. Hollis, United States Attorney, for + ~ pellee. : | a ff» FIeExp, District Judge : . Appellants, Harms and Cousins, who are sisters, along “with one, Connie Jean Day, were named as defendants in a five count indictment charging vielations of the White _ Slave Traffic Act. Harms was charged in each of the first ' four counts with substantive offenses, the first count charg- - ing her with violation of 18 U.S.C. 2423, involving a minor female, Sandra, Lee Ulrich. The second count charged her with.a violation of 18 U S.C.°2422, alleging the inducement of Josephine Bruno. The third and fourth counts charged similar Violations of 18 U.S.C. 2422, involving Linda Fay Ponder and a woman named therein as Ann Miller, respec- tively... ee ; The fifth count which named Cousins and -Day, along with Harms, as defendants, charged a conspitacy under 18 U.S.C. 371-to commit offenses in violation of the sections above referred to.eovering the period from November, 1955, to the date of the indictment. — At the trial, the Court acquitted the defendant Harms on the first count of the indictment upon the motion of the Government. At the conclusion of. the Government's evi- denc¢, the Court granted defendant’s motion for judgment of acquittal as to the gpurth count as well as the motion for acquittal of the third defendant, Connie Jean Day, on the fifth count. _ The hay returned a verdict of guilty on the second, third © and fifth counts as to the defendant, Harms, and a verdict of guilty on the fifth count as to the defendant, Cousins. The Court denied appellant’s motion to set aside the verdict . and entered judgment of conviction of both defendants from which saad have appealed. With reference to the conviction of the appellant Harms on the second count, it is contended that there was not suf-— ficient evidence to show that Harms knowingly exercised the requisite persuasion or inducemént of Bruno to travel - in igterstate commerce. It is further contended that it was essential that the Government sliow that Harms either directed or knew that the victim, Bruno, would travel by. comnion carrier, The. evidence indi¢ated that Bruno and ‘Harms had become acquainted in 1955 and from that time up until January, 1957, Bruno. had worked as a prostitute for Harms in Norfolk on several occasions. In Nov ember, 1956, Bruno, lett Norfolk to return to New Jersey with the understanding that:she might return to Norfolk to resume her work there in January. On January 2 or 3, 1957, Harms made a telephone call to Bruno in Atlantic City, New * Jersey, asking’ her to return ‘to Norfolk and.it was agreed that Bruno would come to Norfolk on January 7, 1957. On that date, Bruno traveled to Norfolk by interstate air line . carrier, and, after her arrival, e1 ngaged i in acts of prostitu- tion in establishments maintained by Harms. Under this evidence, we feel that the conviction of: Harms,on the second count unquestionably should be af- firmed. The evidence set out above of the telephone invita- tion trom Harms to Bruno and her response in making the interstate trip Was sufficient to sustain ‘the jury's finding... that Harms effectually induced or persuaded Bruno to make | the trip. McGuire v. United States 152 F; 2d 577, LaPage | ‘vy. United States, 146 F. 2d 536. The fact that Bruno had | | previously expressed the desire to return to Norfolk or that | she paid her own fare, is immaterial in view of the other _ «evidence and the. juty’s finding thereon. United States v. ~ Reed 96 F. 2d 785. ° ——e > Vv 24 Nor do we feel that it was essential that the Government show that Harms directed or knew that Bruno would travel by interstate carrier. Having shown the knowing induce- mentor persuasion of Bruno to come from New Jersey ti oVi irginia and the fact of the resultant trip by interstate carrier, the Governnient had covered the essential elements - necessary to justify.a conviction under Section 2422. It was not necessary for the Government to go further and at- tempt to show that Hatms knowingly caused the victim to _travel by common carrier either by direction or knowledge that the victim, Bruno, would-use that mode of transporta- tion. “Cause” is a word of very broad import and its mean- ing is generally known. See United States v. Kenofskey 243 .- U.S. 440. The knowing persuasion to make the interstate trip, ofcourse, must be shown with some degree of par- ticularity . but once the knowing persuasion has been’ shown, if the trip by interstate carrier follows, the offense is com- plete. In considering the comparable statute (18 U.S.C 399) prior to the revision of the Criminal Code in’ the ‘case of United States v. Saledonis, 3S F. 2d 302, the Court stated: “It is also suggested that there must be.some direct act showing an intént on the part of the inducer that. the transportation shall’ be by common carrjer. This section does not say: so, but plainly says that one who induces and who shall ‘thereby knowingly cause’ inter- state commerce by common carrier is guilty of the offense if such transportation follows: An affirmative directive act is not involfed.. The inducement in and.of itself, without consideration of intent and with. no further direct act, is the mov ing cause of what follows. The inducement may be afy offer sufficient to cause _ the woman to respond. The inducement sets in motion ~ the successive acts that constitute the cyfme: It is un- necessary to show.control of the medium of trans- portation by the inducer. It is Stifficient if the accused * -« knoivs or should have know n that interstate transpor- tation by common carrier would reagonably result and. if it does.” < _We agree with the above language’ to the effect tliat the requisite. inducement is any offer sufficient to cause the woman to respond, and that since the appellant knowingly induced or. persuaded Bruno to make the trip then she “know ingly caused” Bruno to travel by’ interstate carrier within the meaning of the statute. | The evidence with respect to the third count involving Linda Fay Ponder presents a°different situation. As to.thig ' cont the evidence shows that sometime prior to January 21, 1957, Ponder made a-call from Detroit, Michigan, to Harms in Norfolk, asking [larms. if she could come to Norfolk ‘to work for her as a prostitute. After questioning her if regard to her age and appearance, Harms agreed that she would have a place for Ponder. Ponder later called Harms again, asking if Ann Miller could come with her, to. which Harms agreed. Both Ponder ‘and Miller traveled _ to Nortolk by interstate air line carrier on. January 21, | 957. Upon their arrival at the Norfolk Airport, Ponder called Harms and pursuant to that*call a meeting place was _ arranged and thereafter both Ponder and Miller engaged in.acts of prostitution in IIarms’ establishment: The evidence indicated that Harms knew neither of these women. prior to the time.of their arrival in Norfolk.: The evidence also shows that both telephone calls were initiated ° > 26 by Ponder and that-it was her suggestion that both she and Miller come to work for Harms. Thé evidence fails to show that Harms knew that Ponder was thaking the call from any point outside of the State of Vi irgi nia. While. weds - not know that. Harms-would have been deterred or acted - otherwise than she did had she known .that Ponder and Miller were calling from Detroit?nevertheless we feel that the absence of evidence of such knowledge on the part of Harms has an important bearing on the validity of the conviction on this third count.. The constitutionality. of the Whitt Slave Traffic Act has been, upheld as a proper exer- cise-of the powers of Congress solely under the commerce clause of the Federal Constitutian. Hoke v. United States 277 U. S. 308. Accordingly, the gravamen of the offense is the inducement or persuasion to travel in interstate com- merée for the immoral purposes set forth in the Act. The — immoral acts or pursuits in themselves are exclusively the subject of regulation under the police power of the state where they are committed. The statute makes the intent . to transport.the woman in interstate commerce for such i im moral purposes an element of the crime. United States v- Grace 73 F. 2d 294. Sloan v. United States 287 F. 91. I: seems clear that the Government must present evidence — showi ing the intent of the defendoptt i in regard to the inter state aspect’ of the offense. This intent of the detendant must necessarily exist prior’ to, or concurrent with. the in. terstate trip of the victim. Alpert v. Unitéd States 12 | 2d 352. United States v. Gr race, supra. With respect to the third count, there is no evidence which would show that Harms had know ledge that. she was inducing or pe rsnading Ponder to make an intérstate trip'to take her place in the admittedly Hew: ul establishment9 of Harms. The record ° shows that the: District Judge granted a motion for Judg- - 2 -) ment of acquittal with respect to the fourth count involving Ann Miller, and it is our opinion that the Court should | likewise have granted the motion for judgment of acquittal - ~~on-the third count: for-the-reason set forth, abov e- Ae ane as catalan With respect to the fifth count charging Slennie, Cousins and Day with conspiracy, as we have already noted the District Court granted a motion for judgment of acquittal as to the defendant, Day. While the indictment in the con- spiracy count specified the period from November, 1953, io the date of the indictment, as a result of the disposition of the first count, the District Judge in his charge to the - jury indicated that the conspiracy, if any,-did not take place. until shortly prior to, Januafy 7, 1957. We think the Court acted correetly in so confining the period of the alleged con-— spiracy and the question betore-us is whether the evidence | supports the jury’s verdict on the conspiracy count pur: snant.to such charge. The evidence shows that Harms and Cousins are sisters and were together in a house of prostitution in Norfolk in 1954. However, Cousins moved to Flotida in the early part - ot 1955, and with the exception of “two or three’ visits a year,” did not return to Norfolk until sometime after Jan- uary 1, 1957. The evidence further shows that whenever, she came to Nortolk during that period she staved at the residence of her sister, Harms. i F ° Unquestionably, Cousins evidenced ‘the same lack, of ‘moral fibre as her sisier, and was a willing. helper to -her sister in running her establishments when the cccasion de- manded. Her assistance in a number of istahees is clearly shown by the evidence. It is equally clear. however, that Hatms was the “madam” and controlled ‘both the purse and policy of the business. The maid. Rebbie Knight. in 78 ee 28 ° speaking of Cousins’ activities, stated, “Well, she would maybe try to give! her sister a hand, Wut it was her sister’s business. . . Undoubtedly, there was a sufficiency. of evidence t to con- _ viet Couisins of conspiracy to maintain a house of prostitu- “tion; but it does not necessarily follow that the evidence was sufficient on the charge ot conspiracy to violate the White’ Slax» Act in: this. case. Concededly, Cousins was absent from active participation on the Norfolk scene from early 1955 until after January 2, 1957. The government agent who had Harms under surveillance during that period testified that he had never seen Cousins during that entire time nor until sometime after. January, 1957. She was not in Nortolk at the time of the call. from Harms to Bruno. Under the circumstances, it would appear on the evidence . that the conspiracy necessarily had to come into being, if at all, subsequent to the telephone call to. Bruno and prior to her arrival at Norfolk Airport on January 7th, There is no direct evidence of any agreement between Cousins evd Harms, and, accordingly, the conviction of Harms on the: alleged conspiracy rests solely on inferences drawr from her overt’ aéts together. with the other evidence pre- sented i in this éase. _ The overt acts of Cousins placed her under a high degree: of suspicion. However, proof of overt acts in themselves is , not sufficient, -for it must be established that the conspiracy or’ agreement which is charged to have existed and w hich is the gist of the offense h: id been formed before and was existing at the time of the commission of ‘the overt act or ‘acts. Pahly v. United States 50 F. 2d: 237. United States v. Grossman 335 F; 2d 408. There must be proof of the un- _lawful agreement, either expressed or implied, and participa- 290 tion with knowledge of the agreement. Davidson v. United States OLE, 2d 250. The agreement of conspiracy may, of. course, be. proven and established by circumstantial evi- dence. United States v. Glasser 315 U.S. 60. Clune v. United States 159 U.S. 590. Even though it is not necessary that such circumstantial evidence exclude every reasonable hypothesis consistent with innocence,’ nevertheless, the evi- dence should be sutti¢ient to prove this element of the crime beyond a reasonable doubt. As. was stated in ‘Dahly v. United States, supra, “circumstantial evidence is equally * available. with direct evidence to prove the conspiracy, but suspicion or conjecture cannot take the place of evidence. Guilt must be established beyond a reasonable doubt, and; where the evidence is.as consistent with innocence as with guilt, no conviction can Atel be had.” When the evidenced with respect to Cousins is appraised in this light, it occurs to us that it is not of. such convincing ‘de ‘gree as to warrant more than a mere probability or con- jectureof guilt. With a total absence of direct proot of the essential agreement between Cousins and Harms, we feel that the inferenct drawn from the ev idence with regard to Cousins'on the fitth count is “so tentious as to amaunt to mere speculation.” See Call v. United States 2605 F. 2d-167. We do not believe that the sum of the cireumst: intial elements in the record in this case is sufficient to support the con- viction of the defendant Cousins on the conspiracy count: and since a person cannot conspire With himself or her- self) it necessarily follows that the motion of both défend- arits as to the fi/th count should have been granted. . : —— ' Holland v. United States 348 US. 121. we as Our conclusion requires the reversal of the eciviction of Cousins and cher discharge from: further pr: ceding Harms, however, received a general sentence ot thi rei months and a tine of $1,000.00 imposed jointly upon cotimt: two, three and five. W e hate found that she was improper): convicted on counts’ three and five. However, the penalty imposed upon her.does not exceed that which might have deen imposed under the second’count had_ it stood’ alone. . The convict m on the second count being sufficient in ong to support the sentence, we must affirm the conviction « Harms. Claassen v. United States 142 U.S. 140, Whitfield ‘-, Ohio 297 ULS. 431. ” Affirmed ‘in part, reversed in part and remanded -“e u --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0137%3A2. Public record. Not legal advice.