EFTA00191587

FLEISCHER v. O. L R. 
403 
ate.. 403 FS 403 (INS) 
covered evidence based upon recantation 
of a material witness should be viewed 
with disfavor and that the-five elements 
necessary to the granting oh a motion for 
a new trial on the ground of newly dis-
covered evidence were lacking herein. 
We agree with Judge Larson that mo-
tions based upon the alleged recantation 
of a material witness should be viewed 
with disfavor. We also find that such 
motions are generally addressed to the 
sound judicial discretion of the trial 
court and that there will be no reversal 
on appeal except for a clear a se of that 
ir 
discretion. 
United States 
Johnson, 
1946, 327 U.S. 1( , 66 S.Ct. 4 4, 90 L.Ed. 
3
562; Connelly 
United States, 8 Cir., 
(
9, 271 F.2d 
, cert. denied, Caudle 
United 
States, 
1958, 
356 
U.S. 
921,
S.Ct. 700, 2 LEd.2d 716, rehearing 
denied, 1958, 366 U.S. 964, 78 S.Ct. 
991, 2 L.Ed.2d 1072. 
J
United States, 
896, 897, we 
[14] In McCroskey 
8 Cir., 1965, 339 F. 
stated: 
"Thirty-f' 
years 
I
in Johnson 
United States, 32 F2d 
127, 130 (8 ir. 1929), listed five re-
quirements generally recognized for 
the granting of a new trial for newly 
discovered evidence: the evidence must 
in fact be newly discovered since the 
trial; facts must be alleged from 
which the court may infer diligence; 
the evidence must not be merely cumu-
lative or impeaching; it must be ma-
terial: and it must be such that, on 
a new trial, it 'would probably pro-
duce an acquittal'. We have repeated-
ly rcco nized these in recent cases. 
) 
Ferina 
United States, sup , p. 107 
of 302 
.2d [95]; Connelly 
United 
States. supral
. 335 of 
1 F.2d 
[333] ; Edgar 
Finley, supra, p. 537 
of 312 F.2d [ 
]." 
The guide lines for passing on a motion 
for a new trial on the ground of newly 
discovered evidence as set forth in 
Johnson have been consistently applied 
by 
8 court since. See, also, Ander-
son 
United States, 8 Cir., 1966, 369 
F.2d 1, 19, cert. denied, 1967, 386 U.S. 
976, 87 S.Ct. 1171, 18 L.Ed.2d 136; 
ago, this court. 
Edwards 
United States. 8 Cir., 1966, 
361 F.2d 32, 734. The District Court 
in this case found that these elements 
were lacking: *e art in complete ac-
cord. 
There was no . abuse of discre-
tion in the denial of defendant's motion. 
These cases are in all things affirmed. 
Nathan FLEISCHER, Petitioner, 
COMMISSIONER OF INTERNAL REV-
ENUE, Respondent 
Nos. 219-220, Dockets 31638-91639. 
United States Court of Appeals 
Second Circuit. 
Argued April 9, 1968. 
Deckled Oct. 31, 1968. 
Proceedings on petition for review of 
decision and order of Tax Court that 
taxpayer's deductions for educational ex-
penditures were not permissible. 
The 
Court of Appeals, Waterman, Circuit 
Judge, held that evidence sustained find-
ings that taxpayer, who was employed as 
an entertainer to provide hotel guests 
with hypnotic demonstrations and lec-
tures, did not undertake his work towards 
a doctorate in psychology primarily to 
maintain or to improve skills required by 
his employment or to meet express re-
quirements of his employer and that his 
educational expenditures were not de-
ductible. 
Affirmed. 
I. Internal Revenue 6=5661 
Purpose of regulations pertaining to 
deductions of expenses for education is to 
differentiate between expenditures for 
education which constitute ordinary and 
necessary expenses paid or incurred in 
EFTA00192267

478 
979 FEDERAL REPORTER, 2d SERIES 
like the state courts of California where 
certain discretion lies with the trial court 
judge to strike "priors," or find them 
proved or not proved, this discretion 
does not exist under the law the Con-
gress has seen fit to enact for the guid-
ance of federal court judges. We 
debate the merits of the matter, but `• 
cannot legislate. No cases are cited by 
appellant on this point, and we find no 
merit in it. 
The judgment of conviction is affirmed. 
Catherine Louise HARMS and Ruth Twin 
dale Consists, Appellants, 
v. 
UNITED STATES of America, 
Appellee. 
No. 1913. 
United States Court of Appeals 
Fourth Circuit 
Argued Oct. 7, 1959. 
Decided Nov. 20, 1959. 
Prosecutions for violations of White 
Slave Traffic Act. The United States 
District Court for the Eastern District 
of Virginia, at Norfolk, Walter E. Hoff-
man, J., entered judgment of conviction 
as to one defendant on three counts and 
judgment of conviction as to the other 
defendant on one count and they ap-
pealed. The Court of Appeals, Field, 
District Judge, held that evidence was 
sufficient to sustain conviction of one 
defendant on count of inducing a woman 
to go from one place to another in inter-
state commerce for purpose of proetitu-
tion, but that evidence was insufficient 
to sustain a conviction of defendants 
with respect to an alleged conspiracy to 
commit offenses in violation of White 
Slave Traffic Act 
Affirmed in part, reversed in part 
and remanded. 
L Prostitution dm4 
Evidence was sufficient to sustain 
conviction of a defendant for violation 
of statute prohibiting the inducing of a 
woman to go from one place to another 
in interstate commerce for purpose of 
prostitution. 18 U.S.C.A. § 2422. 
S. Prostitutioa etoa 
Fact that woman had previously ex-
pressed to operator of a house of prosti-
tution her desire to return to such house 
or fact that such person paid her own 
fare in traveling in interstate commerce 
by common carrier to return to house 
after operator thereof had phoned and 
requested her to come back was imma-
terial, in view of other evidence, with 
respect to prosecution of operator for 
knowingly inducing a woman to go from 
one place to another in interstate com-
merce for purpose of prostitution. 18 
U.S.C.A. § 2422. 
S. Prostitution 474 
Where person operating a house of 
prostitution made a phone call to a wom-
an she had previously known to induce 
such woman to return to work for oper-
ator, it was not essential that govern-
ment, in prosecuting operator for viola-
tion of White Slave Traffic Act, show 
that operator directed or knew that other 
woman would travel by interstate com-
merce, and having shown the knowing 
inducement or persuasion of woman to 
come from one state to another and her 
resultant trip by interstate carrier, gov-
ernment covered essential elements nec-
essary to justify conviction of operator 
for knowingly inducing a woman to go 
from one place to another in interstate 
commerce for purpose of prostitution. 
18 U.S.C.A. § 2422. 
4. Prostitution 4=4 
Under statute making it a criminal 
offense for any person knowingly to in-
duce or coerce any woman or girl to go 
from one place to another in Interstate 
commerce for purpose of prostitution, 
requisite inducement is any offer Mt. 
dent to cause woman to respond. 18 
U.S.C.A. § 2422. 
EFTA00192268

6. Prostitution 4=4 
Evidence was insufficient to sustain 
conviction of operator of house of pros-
titution for violation of White Slave 
Traffic Act where operatoi, not knowing 
either of the women Involved prior to 
their time of arrival, agreed to allow 
such women to come to work at opera-
tor's house after such women had tele-
phoned operator who was not shown to 
have known that call came from out of 
state. 18 U.S.CA. § 2422. 
6. Prostitution f1=D1 
Under statute making it criminal 
offense for anybody knowingly to per-
suade, Induce, entice or coerce any wore-
an to go from one place to another in 
interstate commerce for purpose of pros-
titution, gravamen of offense is the in-
ducement or persuasion to travel in inter-
state commerce for immoral purposes, 
since the immoral acts or pursuits in 
themselves are exclusively the subject of 
regulation under police power of state 
where they are committed, and statute 
makes intent to transport women in in-
terstate commerce for such immoral pur-
poses an element of the crime, and gov-
ernment must present evidence showing 
intent of defendant in regard to inter-
state aspect of offense and this intent 
must necessarily exist prior to or con-
current with the interstate trip of vic-
tim. 18 U.S.C.A. § 2422. 
7. Conspiracy 4=47 
Evidence was insufficient to sustain 
conviction of defendants, who were sis-
ters, for conspiracy to violate White 
Slave Traffic Act. 18 U.S.C.A. §§ 371, 
2422. 
8. Conspiracy fi=f47 
Proof of overt acts in themselves is 
not sufficient to prove a conspiracy for 
it must be established that a conspiracy 
or agreement, which is charged to have 
existed and which is the gist of the of-
fense, had been formed before and was 
existing at the time of the commission 
of the overt act or acts. 
9. Conspiracy (M,47 
While agreement of conspiracy may 
be established by circumstantial evi-
HAP.Idli v. UNITED STATES 
mass 212 F2d 475 
dente, and even though it is not neces-
sary that such circumstantial evidence 
exclude every reasonable hypothesis con-
sistent with innocence, evidence should 
be sufficient to prove this element of 
crime beyond a reasonable doubt. 
479 
Conspiracy eine 
A party cannot conspire with him• 
self. 
IL Criminal Law 4=,I177 
Where trial court found defendant 
guilty on three counts and imposed a gen-
eral sentence and fine jointly upon the 
counts, and on appeal it was found that 
defendant was improperly convicted on 
two of the counts but the penalty im-
posed on her did not exceed that which 
might have been imposed on the one re-
maining count bad it stood alone, con-
viction of defendant must be afilrmed. 
Robert G. Doumar and Frederick T. 
Stant, Norfolk, Va., for appellants. 
John M. Hollis, U. S. Atty., Norfolk, 
Va., for appellee. 
Before HAYNSWORTH and BORE-
MAN, Circuit Judges, and FIELD, Dis-
trict Judge. 
FIELD, 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 violations of 
the White Slave Traffic Act. Harms was 
charged in each of the first four counts 
with substantive offenses, the first count 
charging 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 Pond. 
a woman named therein as Ann 
respectively. 
The fifth count which named Cousins 
and Day, along with Harms, as defend-
ants, charged a conspiracy under 18 U.S. 
EFTA00192269

480 
271 FEDERAL REPORTER. 24 SERIES 
C. § 371 to commit offenses in violation 
of the sections above referred to covering 
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 evidence, the Court grant-
ed defendant's motion for judgment of 
acquittal as to the fourth count as well 
as the motion for acquittal of the third 
defendant, Connie Jean Day, on the fifth 
count. 
The jury 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 they have 
appealed. 
With reference to the conviction of the 
appellant Harms on the second count, it 
is contended that there was not sufficient 
evidence to show that Harms knowingly 
exercised the requisite persuasion or in-
ducement of Bruno to travel in interstate 
commerce. It Is further contended that 
it was essential that the Government 
show that Harms either directed or knew 
that the victim, Bruno, would travel by 
common carrier. The evidence indicated 
that Bruno and Harms had become ac-
quainted in 1956 and from that time up 
until January, 1957, Bruno had worked 
as a prostitute for Harms in Norfolk on 
several occasions. In November, 1956, 
Bruno left 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 inter-
state air line carrier, and, after her ar-
rival, engaged in acts of prostitution in 
establishments maintained by Harms. 
[1, 2) Under this evidence, we feel 
that the conviction of Harms on the sec-
ond count unquestionably should be af-
firmed. The evidence set out above of 
the telephone invitation from 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, 8 Cir., 
162 P.24 677; La Page v. United States, 
8 Cir., 146 F.24:1 636, 166 A.L.B. 965. 
The fact that Bruno had previously ex-
pressed the desire to return to Norfolk 
or that she paid her own fare, is imma-
terial in view of the other evidence and 
the Ts finding thereon. 
United 
States 
Reed, 2 Cir., 96 F.2d 785. 
(3) Nor do we feel that it was essen-
tial that the Government show that 
Harms directed or knew that Bruno 
would travel by interstate carrier. Hav-
ing shown the knowing inducement or 
persuasion of Bruno to come from New 
Jersey to Virginia and the fact of the 
resultant trip by interstate carrier, the 
Government had covered the essential 
elements necessary to justify a convic-
tion under Section 2422. It was not nec-
essary for the Government to go further 
and attempt to show that Harms know-
ingly caused the victim to travel by com-
mon carrier either by direction or knowl-
edge that the victim, Bruno, would use 
that mode of transportation. "Cause" is 
• word of very broad import and its 
k
meaning i generally known. See Unit-
ed States 
Kenofakey, 243 U.S. 440, 37 
S.Ct. 438, 1 L.Ed. 836. The knowing 
persuasion to make the interstate trip, 
of course, must be shown with some de-
gree of particularity, but once the know-
ing persuasion hes been shown, if the 
trip by interstate carrier follows, the 
offense is complete. In considering the 
comparable statute (18 U.S.C. I 399) 
prior to the revision of the Crimi 
Code in the case of United States 
Saledonis, 2 Cir., 93 F.2d 302, 304, 
Court stated: 
"It is also suggested that there 
must be some direct act showing an 
intent on the part of the inducer 
EFTA00192270

HARMS v. 
Cu 
that the transportation shall be by 
common carrier. This section does 
not say so, but plainly says that one 
who induces and who shall 'thereby 
knowingly cause' interstate com-
merce by common carrier is guilty 
of the offense if such transporta-
tion follows: An affirmative direc-
tive act is not involved. The induce-
ment in and of itself, without con-
sideration of intent and with no fur-
ther direct act, is the moving cause 
of what follows. _The inducement 
may be any offer sufficient to cause 
the woman to respond. The induce-
ment sets In motion -the successive 
acts that constitute the crime. It is 
unnecessary to show control of the 
medium of transportation by the in-
ducer. It is sufficient if the accused 
knows or should have known that 
interstate transportation by com-
mon carrier would reasonably re-
sult and if it does." 
[4] We agree with the above lan-
guage to the effect that the requisite_ in-
ducement is any offer sufficient to cause 
The woman to rupsna, anrulat since 
the appellant knowingly induced or per-
suaded Bruno to make the trip then she 
"knowingly 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 pre-
sents a different situation. As to this 
count the evidence shows that sometime 
prior to January 21, 1957, Ponder made 
a call from Detroit, Michigan, to Harms 
in Norfolk, asking Harms if she could 
come to Norfolk to work for her as a 
prostitute. After questioning her in re-
gard to her age and appearance, Harms 
agreed that she would have a place for 
Ponder. 
Ponder Lt 
ed Harms 
again, asking if Ann 
could come 
with her, to 
• 
Harms agreed. Both 
Ponder and 
traveled to Norfolk by 
interstate air ne carrier on January 21, 
1957. Upon their arrival at the Norfolk 
Airport, Ponder called Harms and pur-
suant to that call a meeting place was 
arranged and thereafter both Ponder 
ITS F.14-31 
UNITED STATES 
481 
as 172 rtes 
and 
engaged in acts of prostitu-
tion n 
arms' establishment 
[5, 6] The evidence indicated that 
Harms knew neither of these women pri-
or to the time of their arrival in Norfolk. 
The evidence also shows that both tele-
phone calls were initiated by Ponder and 
that • 
s her suggestion that both she 
and 
iii 
come to work for Harms. The 
evidence ails to show that Harms knew 
that Ponder was making the call from 
any point outside of the State of Vir-
ginia. While we do not know that Harms 
would have been deterred or acted other-
wise than a 
• 
had she known that 
Ponder and 
were calling from De-
troit, neve 
e ea we feel that the ab-
sence of evidence of such knowledge on 
the part of Harms has an important bear-
ing on the validity of the conviction on 
this third count. The constitutionality 
of the White Slave Traffic Act has been 
upheld as a proper exercise of the powers 
of Congress solely under the commerce 
clause of the Fedel Constitution, art. 1, 
§ 8, cl. 3. Hoke 
United States, 227 
U.S. 808, 83 S.Ct. 281, 57 L.Ed. 523. 
Accordingly, the gravamen of the offense 
is the inducement or persuasion to travel 
in interstate commerce for the immoral 
purposes set forth in the Act. The im-
moral acts or pursuits in themselves are 
exclusively the subject of regulation un-
der the police power of the state where 
they are committed. The statute makes 
the intent to transport the woman in 
interstate commerce for such immoral 
purposes 
element of the crime. Unit-
ed Stir 
) 
Grace, 2 Cir., 73 F.2d 294; 
Sloan 
Dated States, 8 Cir., 287 F. 91. 
It seems clear that the Government must 
present evidence showing the intent of 
the defendant in regard to the interstate 
aspect of the offense. This intent of the 
defendant must necessarily exist prior 
to, or concurrent with the 
terstate 
L
 
trip of the victim. 
Alpert 
United 
tee, 2 Cir., 12 F.2d 352; Un 
States 
rit' 
Grace, supra. With respect to the 
d count, there is no evidence which 
would show that Harms had knowledge 
that she was inducing or persuading Pon-
der to make an interstate trip to take 
EFTA00192271

4f32 
272 FEIDEJIAI. RI:PORTER, 2d IiIEBIE8 
her place in the admittedly illegal estab-
lishment of Harms. The record shows 
that the District Judge granted a mo-
tion for judgment of acquittal with re-
spect 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 
above. 
[7] With respect to the fifth count 
charging Hanna, Cousins and Day with 
conspiracy, as we have already noted the 
District Court granted a motion for 
judgment of acquittal as to the defend-
ant, Day. While the indictment in the 
conspiracy count specified the period 
from November, 1955, to the date of the 
indictment, as a result of the disposition 
of the first count, the District Judge in 
his 
his charge to th 
ry indicated that the 
conspiracy, if 
, did not take place 
until shortly pr 
to January 7. 1957. 
We think the Court acted correctly in so 
waning the period of the alleged con-
spiracy and the question before us is 
whether the evidence supports the jury's 
verdict on the conspiracy count pursuant 
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 Flor-
ida in the early part of 1955, and with 
the exception of "two or three visits a 
year," did not return to Norfolk until 
sometime after January 1, 1957. The 
evidence further shows that whenever 
she came to Norfolk during that period 
she stayed at the residence of her sister, 
Harms. 
Unquestionably, Cousins evidenced the 
same lack of moral fibre as her sister, 
and was a willing helper to her sister in 
running her establishments when the 
occasion demanded. Her assistance in a 
number of instances is clearly shown by 
the evidence. It is equally clear, how-
ever, that Harms was the "madam" and 
controlled both the purse and policy of 
the business. The maid, Rebbie Knight, 
in speaking of Cousins' activities, stated, 
"Well, she would maybe try to give her 
sister a hand, but it was her sister's 
business." 
Undoubtedly, there was a sufficiency of 
evidence to convict Cousins of conspiracy 
to maintain a house of prostitution, but 
it does not necessarily follow that the 
evidence was sufficient on the charge of 
conspiracy to violate the White Slave 
Act in this case. Concededly, Cousins 
was absent from active participation on 
the Norfolk scene from early 1956 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 Norfolk at the 
time of the call from Harms to Bruno. 
Under the circumstances, it would ap-
pear 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 Nor-
folk Airport on January 7th. There is 
no direct evidence of any agreement be-
tween Cousins and Hanna, and, accord-
ingly, the conviction of Harms on the 
alleged conspiracy rests solely on infer-
ences drawn from her overt acts together 
with the other evidence presented in this 
a 
[8, 9] The overt acts of Cousins 
placed her under a high degree of sus-
picion. 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 ex-
isted and which is the gist of the offense 
had been formed before and was existing 
j
at the time of the commies' 
of the 
overt act or acts. 
Dahly 
United 
States, 8 Cir., 60 F.2d 8 
United 
States v. Grossman, D.C, 55 F.2d 408. 
There must be proof of the unlawful 
agreement, either expressed or implied, 
in 
and participation with 
owledge of the 
agreement. Davidson 
United States, 
8 Cir., 61 F.2d 260. 
e agreement of 
conspiracy may, of course, be proven and 
established by circumstantial evidence. 
Glasser v. United States, 815 U.S. 60, 62 
S.Ct. 467, 86 LEd. 680; Clune I United 
States, 169 U.S. 590, 16 S.Ct. 125, 40 
EFTA00192272

BUTORD v. min= STATES 
4&3 
Own MS Tie On 
L.Ed. 269. Even though It is not nee- 
we must 
rm the conviction of Harms. 
exclude every reasonable hypothesis con- 
12 S.Ct. 
9, 65 L.Ed. 966; Whitfield 
f
essary that such circumstantial evidence 
Claassen 
United States, 142 U.S. 1 . 
sistent with innocence? nevertheless, 
State of Ohio, 297 U.S. 431, 66 S.Ct. 582, 
the evidence should be sufficient to prove 
80 L.Ed. 778. 
this element of the crime beyond a rea- 
Affirmed in part, reversed in part and 
r
sable doubt. As was stated in Dahly 
remanded. 
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 estab-
lished beyond a reasonable doubt, and, 
where the evidence is as consistent with 
innocence as with guilt, no conviction can 
properly be had." [50 F.2d 43.] 
[10] When the evidence with respect 
Travis SIT 
Appellant, 
to Cousins is appraised in this light, it 
UNITED STATES of America, 
occurs to us that it is not of such con- 
Appellee. 
tinting degree as to warrant more than 
No. 16405.
a mere probability or conjecture of guilt. 
With a total absence of direct proof of 
United States Court of Appeals 
the essential agreement between Cousins 
Ninth Circuit 
and Harms, we feel that the inference 
Nov. 2, 1959. 
drawn from the evidence with regard to 
Rehearing Denied Dec.10, 1959. 
Cousins on the fifth count is "so tenuous 
as to 
cunt to mere speculation." See 
Call 
n 
United States, 4 Cir., 266 F.2d 
Defendant was convicted of two sub-
167, f 3. We do not believe that the sum 
stantive violations of narcotics laws and 
of the circumstantial elements in the rec- 
conspiracy. The United States District 
ord in this case is sufficient to support 
Court for the Northern District of Call-
the conviction of the defendant Cousins 
fognia, Southern Division, Michael J. 
on the conspiracy count; and since a per- 
Roche, J., rendered judgment, and de-
son cannot conspire with himself or her- 
fendant appealed. The Court of Appeals, 
self, it necessarily follows that the mo- 
Healy, Circuit Judge, held that where in-
tion of both defendants as to the fifth former had visited defendant's barber 
count should have been granted. 
shop while equipped with radio trans-
[11] Our conclusion requires the re- 
mitter and narcotics agent stated that 
venal of the conviction of Cousins and 
he passed by barber shop's entrance after 
i 
her discharge from further proceedings. 
informer had gone in, saw defendant and
Harms, however, received a general sen- 
heard her make certain statement, at 
fence of thirty months and a line of $1,- 
same time agent listening to radio re-
000.00 imposed jointly upon counts two, 
ceiver heard same statement, and defend-
three
a
 and five. We have found that she 
ant subsequently admitted that it was
was improperly convicted on counts three 
her conversation with informer to which 
government agent had listened on radio 
and five. However, the penalty imposed 
upon her does not exceed that which 
transmitter device, defendant's voice was 
might have been imposed under the sec- 
identified sufficiently to allow in evidence 
and count had it stood alone. The con- 
the admissions overheard by federal 
;Fiction on the second count being suffi- 
agents. 
dent In itself to support the sentence, 
Affirmed. 
t. Holland I. Caked States, 348116.121. 75 8.Ot. 127.90 LEd. 150. 
EFTA00192273

EGE 
• IS 
Edward Raymond EGE, Joseph Boyd and 
Joseph Victor luio, Appellants, 
UNITED STATES of America, 
Appellee. 
No. 14955. 
United States Court of Appeals 
Ninth Circuit 
April 1, 1957. 
Rehearing Denied May 15, 1957. 
One defendant was convicted of 
transporting woman front California to 
Arizona for purposes of prostitution and 
inch defendant and remaining two de-
fendants were convicted of conspiring to 
transport women between California, 
Arizona, and Nevada for purposes of 
prostitution. The United States Dis-
trict Court for the Northern District of 
California, Southern Division, Edward 
P. Murphy, J., entered judgment, and 
defendants appealed. The Court of Ap-
peals, Chambers, Circuit Judge, held 
that, where the one defendant gave 
prostitute $50 for her expenses in travel-
ing from San Francisco to house of 
prostitution in Arizona and made ar-
rangements for the prostitute with an-
other prostitute who was driving to the 
same destination, defendant persuaded 
and induced the prostitute to make the 
trip for purposes of prostitution in vio-
lation of the Mann Act, and that evi-
dence sustained conviction of two of the 
alleged conspirators but not conviction 
of the third. 
Judgment affirmed in part and re-
versed in part-
1. Prostitution ir 01 
Where defendant gave prostitute 
;50 for her expenses in traveling from 
San Francisco to house of prostitution 
in Arizona and made arrangements for 
prostitute with another prostitute who 
was driving to the same destination, de-
fendant persuaded and induced prosti-
tute to make the trip for purposes of 
prostitution in violation of the Mann 
Act. 18 U.S.C.A. §§ 2421, 2422. 
STATES 
879 
ale 
2. Conspiracy 4=047 
In prosecution for conspiring to 
transport women between several states 
for purposes of prostitution, evidence 
sustained conviction as to two of the al-
leged conspirators but not as to the 
third. 18 U.S.C.A. 55 371, 2421 et seq„ 
2422. 
3. Criminal Law 4=8211(1) 
In prosecution for conspiring to 
transport women between certain states 
for purposes of prostitution, requested 
instruction that jurors would have to 
agree on at least one of the overt acts 
was proper, but refusal to so charge was 
not reversible error, in view of fact that 
instructions given, when properly inter-
preted, gave jury such requirement of 
unanimity. 18 U.S.CA. 55 371, 2421 et 
seq., 2422. 
4. Criminal Law cM,1044 
If defendant does not move for di-
rected verdict, he is not entitled to a 
review of the sufficiency of evidence. 
Walter M. Campbell, Lillie & Bryant, 
Los Angeles, Cal., Robert B. McMillan, 
Leo R. Friedman and George T. Davis, 
San Francisco, Cal., for appellants. 
Lloyd H. Burke, U. S. Atty., Richard 
H. Foster, Ant. U. S. Atty., San Fran-
cisco, Cat, for appellee. 
Before STEPHENS, CHAMBERS and 
BARNES, Circuit Judges. 
CHAMBERS, Circuit Judge. 
Ege, Boyd and Bruno have run afoul 
of the Mann Act.' A young California 
girl who had renamed herself Cindy was 
their pawn. 
As a child through the normal school 
years, Cindy had been moved from one 
foster home to another. 
After nine 
years of school, she started to work. 
She was employed as a clerk by three 
San Francisco concerns, each in rapid 
succession. She then graduated to the 
chorus line of the burlesque follies. She 
seems to have been an habitue of the 
I. Sas 18 O.3.C.A. 1 2421 et en. 
EFTA00192274

880 
242 FEDERAL )LEPORTER, 2d SERIES 
Sarong Club in San Francisco. At least 
in 1953 that dub had among its clientele 
persona like the defendants Ege and 
Boyd who had commercial use for young 
women willing to accept their manage-
ment in the prostitution field. 
Ere maintained in San Francisco sort 
of a supply house of women (of whom 
Cindy became one) and Boyd and Bruno 
operated houses of prostitution where 
and when they could find local law re-
laxed. Eventually, Cindy and Ege ar-
gued. In the vernacular, "they fell out." 
And that seems to have given the fed-
eral agents their chance to make a case. 
During her career, Cindy was sent by 
Ege to Scottsdale, near Phoenix, Arizona, 
where she worked In Boyd's "house" 
which operated there awhile. Then she 
returned to California where she came 
under the direct control of Bruno at his 
"house" at Delano, some thirty miles 
north of Bakersfield. During the end 
of her circuit she plied her trade a day 
or two at Las Vegas, Nevada. There 
had been intermediate stops for her in 
brothels at Suisun, Sacramento and 
Barstow, under the aegis of Ege. It is 
around the necessary crossing of state 
lines by Cindy that the government 
found the required "commerce among 
the states" and thus the applicability of 
the Mann Act. It asserted that Ege, 
Boyd and Bruno all had a hand in the op-
eration. 
Ege was indicted for transporting 
Cindy from San Francisco to Scottsdale 
for the purposes of prostitution. 
See 
18 U.S.C.A. § 2421. A second count 
charged that Ege, Boyd and Bruno in 
violation of IS U.S.C.A. § 371 did con• 
spire together to commit an offense in 
that they and each of them did conspire 
in violation of 18 U.S.C.A. § 2421 know-
ingly "to transport women between Cali-
fornia and Arizona and California and 
Nevada for the purposes of prostitu-
tion." The indictment then related a list 
of fourteen overt acts• mainly incident to 
shuttling Cindy about the country. 
There was further amplification of the 
overt acts in a bill of particulars. 
A jury found Ege guilty on the first 
count which was his alone. On the sec-
ond or conspiracy count, Ege, Boyd and 
Bruno were all found guilty. Each was 
sentenced to five years on the conspiracy 
charge and Ege was given an additional 
five years on his single count. Ege's 
sentences run consecutively. 
The single count against Ego 
(13 Ege's sole claim here concerning 
the first count is that the evidence of 
the government only showed that Ege 
may have "persuaded or induced" Cindy 
to go to Arizona from San Francisco in 
violation of § 2422 of Title 18, but that 
it was not shown that he "caused her to 
be transported," a violation o(§ 2421. 
Reliance is placed upon LePage
United 
States, 8 Cir., 146 F.2d 536, 1
A.L.R. 
965. In that can, a woman WAS on va-
cation in Minneapolis from her employ-
ment as an inmate in a brothel in Fargo, 
North Dakota. The keeper of the house 
telephoned her and requested that she 
return. It was understood that she 
would resume her old employment in 
Fargo. The woman returned as request-
ed, but paid her own way. Of course, in 
a loose sense LePage did cause the 
woman to be transported in interstate 
commerce. But we assume that § 2421 
requires a little more "causing" beyond 
just "persuading and inducing." Here 
Ege made the arrangements for Cindy 
with another woman in the trade, one 
Judy, (or he pointed to the arrange-
ments) who was driving to the same 
Phoenix-Scottsdale destination. 
(Judy 
also was in the group of women con-
trolled by Ege.) Ege gave Cindy $50.00 
for her expenses to Phoenix, including 
share-the-ride expenses with Judy. This 
seems to have been no different than if 
he had presented Cindy with a plane or 
train ticket and told her to go. It is 
the same as if he handed Cindy the 
money and had taken her to the ticket 
window to make the purchase of a trans-
portation ticket to Phoenix. Such con-
duct goes, we hold, beyond men persuad-
ing or inducing. We hold that when the 
man puts up the money in advance, when 
EFTA00192275

ME M
STATES 
• a 
. Erre 
it is used for the interstate trip by the 
woman in accordance with his plan, when 
he has persuaded and induced her to 
make the trip for the purposes of prosti-
tution, he has also caused the woman to 
be transported in violation of § 2421. 
Thus, we distinguish LaPage's case. 
The sufficiency of the evidence against 
Ege and Boyd on the conspiracy count 
Ege, the small booking agent and man-
ager of prostitutes, operated from a 
home in San Francisco on which he had 
assumed the lease of Boyd. Boyd was 
in Arizona at Scottsdale near Phoenix 
operating his brothel in September-Octo-
ber, 1953. 
[2] Ege took the witness stand in 
defense. Boyd and Bruno did not. They 
rested when the government closed its 
case in chief. We think within the lim-
its of Dyer v. 3facDo 
all, 2 Cir., 201 
F.2d 265, and Bennett . United States, 
i 
9 Cir., 234 F.2d 675, 
e jury was en-
titled to draw many affirmative infer-
ences from the improbabilities of Ege's 
story. Tnese, when added to the evi-
dence in chief, make hollow any claim 
by Ege that there was insufficient evi-
dence of conspiracy as to him. 
And as to Boyd, we have the follow-
ing: 
1. The fact that before Cindy went 
with Judy in 1953 to Arizona Boyd and 
Ege knew each other. 
2. Efforts of Ege in September, 1953, 
to "place" Cindy somewhere. 
3. Ege dispatches Cindy, transporta-
tion prepaid, to Scottsdale along with 
the above-mentioned Judy. 
4. Boyd at Scottsdale received Cindy 
and puts her to work for a week or two in 
the trade at his brothel. 
6. Boyd's verbal act at Scottsdale in 
soliciting customers for his house when 
he stated that he was bringing over two 
women from California. 
2. During Cindy's stay at Boyd's "house" 
in Scottsdale there seem to have teen 
three girls serving the trade there. The 
origin of one girl le not shown. But On-
112 
881 
6. The quick appearance thereafter 
of Cindy at Scottsdale along with Judy 
straight from Ege's quarters in San 
Francisco' 
7. Evidence that Boyd did make 
many calls to San Francisco from his 
motel late in September, 1953, and in 
October. 
8. Boyd's subsequent admissions that 
he had telephoned Ege at San Francisco 
from Phoenix or Scottsdale, apparently 
around the time Cindy was going to and 
she was working for him in his house at 
Scottsdale. 
Out of the foregoing, the jury was en-
titled to infer from the circumstances 
that there a conspiracy had been formed 
in September, 1953, between Ege and 
Boyd to transport Cindy to Arizona from 
California for Mann Act purposes and 
to infer that it was executed. There is 
no shortage of evidence of at least one 
overt act, as charged, and of the com-
mencement of the act in the Northern 
District of California, and thus proper 
venue. 
Bruno and the conspiracy 
Bruno appears to have been an old 
and experienced operator in the brothel 
field. We have little doubt that as such 
he probably knew when he ordered a 
woman from Ege that she would be one 
whom Ege was shuttling here and there 
and over interstate lines. We strongly 
suspect that Bruno made the arrange-
ments with Ege for Cindy to fly from 
Phoenix to Bakersfield via Los Angeles 
before she rode with him from Bakers-
field to Delano, there to work at her new 
profession and thus profit Ege and 
Bruno. 
But the evidence is just too 
weak to hold Bruno for a violation of 
the Mann Act on the record here. 
Backtracking for a moment, the evi-
dence amounts to this: 
Apparently, 
without Boyd's knowledge,' Cindy at 
Scottsdale in October, 1953, talked on the 
dy end Judy were "two girls from Cali. 
fornia.-
3. That is, there are no facts in evidence 
that Boyd knew in advance, or simulume-
EFTA00192276

882 
242 FEDERAL REPORTER, 24 SERIES 
telephone to Ege at San Francisco. Ege 
told her to promptly fly to Bakersfield 
from Phoenix and to go to work at Dela-
no for Bruno. She followed instructions. 
Ege directed that when she reached the 
transfer stop at Los Angeles en route 
from Phoenix she should telephone Bru-
no at a Delano number. This she did, 
but she refused to state positively that 
she talked to Bruno when she made the 
call. Upon her arrival at the Bakersfield 
airport, Bruno meets her In his Cadillac. 
He takes her to Delano where she works 
in the trade for him. 
We only know 
from evidence inadmissible against Bru-
no that Boyd and Bruno knew each other. 
Undoubtedly, Ege and Bruno knew each 
other. 
We think there is a permissible weak 
legitimate inference that Bruno and Ege 
had formed a conspiracy. It would have 
been stronger if Cindy had testified she 
telephoned and talked to Bruno on the 
telephone upon arrival at Los Angeles. 
There is nothing that shows that Bruno 
lc
ever knew fr 
whence Cindy came to 
Los Angeles 
here she made the tele-
phone call to 
runo's number. Cindy 
was not asked if Bruno knew from 
whence she came. She was not asked if 
Bruno said anything indicating he knew 
she was under Ege's exclusive manage-
meat, or if Bruno had said anything 
about arrangements with Ege. Perhaps, 
It would have been futile to ask. It is 
obvious that Cindy's testimony disap-
pointed the government. It seems ob-
vious she was scared. 
While a conspiracy shown to exist is 
ordinarily presumed to continue (and 
it probably did), yet here the strongest 
inference under the evidence is that the 
original one started by En and Boyd 
stopped when Cindy left Boyd's place. 
There is no showing that Boyd helped 
her on her way to Bruno—no transporta-
tion of Cindy to the Phoenix airport on 
departure or final conversations with 
Boyd. 
No witnesses testified to any 
admissions by Bruno. Then just is not 
enough competent evidence on Bruno as 
oualy with the telephone call that Ege 
wile pulling Cindy away from Boyd and 
sending her to Bruno. If any inference 
to the formation of a new conspiracy be-
tween Ege and Bruno, or a continuation 
of the old Boyd-Ege conspiracy. Thus, 
we do not reach the contentions spin-
ning around the claim that we have here 
a charge of one conspiracy and proof of 
two. 
Specifications affecting all conspiracy 
defendants 
It is specified that the court erred in 
not instructing the jury that the jurors 
must all agree on at least one of the 
overt acts. With much force the defend-
ant Boyd argues, in effect, each juror 
might have selected his own overt act 
to the exclusion of others:- that the 
jurors may have "tacked" overt acts 
without all actually agreeing on any one. 
At first impression, it seems a powerful 
argument. We reject it nonetheless. 
The jury instructions included: 
1. "You must find 
• 
• 
• 
Fourth, that one of the conspirators 
(after the formation of the con-
spiracy] knowingly committed at 
least one of the overt acts charged 
in the indictment;" 
2. "Since the burden is upon the 
prosecution to prove the accused 
guilty beyond a reasonable doubt of 
every essential element of the crime 
charged, the defendant has the right 
to rely upon a failure of the prose-
cution to establish such proof." 
3. "You must consider each count 
separately as though each was set 
forth in a separate indictment, and 
in order to convict or acquit the 
defendant on any count, you must 
reach a unanimous verdict as to 
each count. It will take all twelve of 
you to convict or acquit, as the case 
may be, on each count." 
4. "It is not necessary, as I have 
indicated, that all the overt acts 
charged be proved, but it is neces-
sary that at least one of these be 
proved and that it be shown to have 
been in furtherance of the object of 
the conspiracy. 
Other overt acts 
is permiselble It Is that Boyd did not 
know. 
EFTA00192277

ant's request for the highly specific in4 
struction on unanimity should have been 
granted. And it is easy to say, "The 
requested instruction would be a correct 
one. Why not give it? It would do no 
harm." 
Yet if each juror selected his own 
overt act from the list, that would be a 
misconstruction of the instructions as 
given. . There is no positive insurance 
against a jury-going "haywire." Those 
of us who believe in the jury system, be-
lieve that the jury usually does not get 
mixed up. We believe the margin for 
error is less in simple instructions. 
[3] In the preparation of instruc-
tions, it is always a question of balance. 
If every instruction is granted that is 
not improper, either at the request of 
the defense or the government, the skein 
can get so twisted, snarled and knotted 
that the opportunity for jury error in-
creases. If sufficient and not wrong, 
brevity should be a fetish. More even 
justice will be done when simplicity is 
achieved, assuming adequacy is accom-
plished. The requested instruction was 
proper. 
We think Its refusal was not 
error; at least not reversible error. 
Anent this point, Boyd has argued 
that in the absence of an express in-
structr for unanimity on one overt-act 
there as error in the absence of a spe-
cial verdict which was not submitted. 
Above we have given our answer. Akin 
to this question is Bruno's contention 
that a special verdict should have been 
submitted to the jury on the overt acts. 
The treason eases of Cramer v. U. S., 
325 U.S. 1,C  S.Ct. 918, 89 L.Ed. 1441, 
and Haupt 
U. S., 330 U.S. 631, 67 S. 
Ct. 874, 91 
Ed. 1145 are cited. 
First, we can say that the overt act 
of the crime of treason of Article III, § 
of the Constitution is a substantial part 
of the crime. Insubstantial overt acts 
may qualify to move a garden variety of 
BOB'
IIIIITED STATES 
883 
• as SO Irad ifte
than those charged may be given in 
conspiracy agreement into the zone of 
evidence, but proof of one of those 
crime and away from "talking" and 
charged in the indictment is indis- 
"thinking." Yet such overt acts may 
pensable." 
fall short of the substance required for 
Ones first impression is that defend- 
a treasonable overt act. Thus, in a way, 
treason is sui generic. 
Second, here no objection was made to 
the submission to the jury of some overt 
acts upon which the evidence failed. 
Really the substantial question for the 
jury's consideration here was whether a 
conspiracy existed at all. 
Assuming the conspiracy, a claim that 
there was no overt act is ra 
hollow. 
Nonetheless, the defendants 
crc enti-
tled to have the jury (not the isi court, 
not this court) determine originally the 
question of the existence of an overt act. 
But the court's failure on its own mo-
tion (even yet not excepted to) to with-
draw certain overt acts from the jury 
must be viewed in the light of the fact 
that the proof shows almost conclusively 
the existence of an overt act. 
The Cramer case we do not regard as 
a harbinger of a holding that conspiracy 
cases require a special verdict on the 
overt acts. We believe that the decision 
there would have been affirmed if there 
had been sufficient proof for a jury issue 
on each overt act. Doubtless the sub-
mission of each overt act was thorough-
ly objected to and the objection over-
ruled. Here in Boyd's and Ege's case 
no objection was made on submitting to 
the jury the full list of alleged overt acts. 
Treason is a crime that gets special 
treatment almost all of the way. 
[4) At the trial, attorneys (other 
than those severally representing the de-
fendants now) made their defense main-
ly on the ground of no conspiracy. Ad-
ditionally, they offered to the district 
judge the rejected instruction on unanim-
ity on one overt act. As we have indi-
cated above, we think the instructions as 
given, properly interpreted, gave the 
jury this requirement of unanimity. If 
a defendant does not move for a directed 
verdict (these defendants did), he is not 
entitled to a review of the sufficiency of 
evidence. We think it of far less con-
sequence to a defendant to hold, as we 
EFTA00192278

884 
242 FEDERAL REPORTER. 2d SERIES 
do here, that it was not error to remove 
from the Jury's consideration some stray 
overt act, when it was never requested 
that such be done. Not having request-
ed the withdrawal of certain alleged 
overt acts, we thus find complaints are 
made that "unanimity on one overt act 
was not required" and "there should 
have been a special verdict" These, we 
hold to be without merit. 
The judgment is affirmed as to Ege 
and Boyd and reversed as to Bruno. 
sylvan LEMAIRE, on behalf of himself 
and all other bondholders of Kentucky 
and Indiana Terminal Railroad Cow 
pang, similarly situated, Plaintiff•Ap. 
pellant, 
I.
KENTUCKY AND INDIANA TERM. 
NAL RAILROAD COMPANY, The Bal. 
timore and Ohio Railroad Company, 
Chicago, Indianapolis O Louisville Rail-
way Company and Southern Railway 
Company, Defendants-Appellees. 
No. 177, Docket 24204. 
United States Court of Appeals 
Second Circuit. 
Argued Jan. 22, 1957. 
Decided April 2, 1951. 
Class action by bondholder to ob-
Min judgment declaring amount of prin-
cipal and interest payable on bonds which 
were Issued by American corporation in 
England and which were designated as 
gold coupon bonds. The United States 
District Court for the Southern District 
of New York, John M. Caehin, J., 140 
F.Supp. 82, rendered judgment declaring 
that they were payable in current British 
tender; the bondholder appealed. The 
Court of Appeals, Clark, Chief Judge, 
held that under "coupon gold" bonds, 
properly construed, issuer did not un-
dertake to make bondholders whole in 
event Great Britain went off gold stand-
ard, and bonds were payable in current 
British legal tender rather than at gold 
value. 
Affirmed. 
1. Courts 4=359 
In case tried in Federal Court sit-
ting in New York. New York law as to 
choice of law was controlling. 
2. Bonds 41:149, 103 
Under New York law, questions of 
construction and performance of bond 
agreement payable in England would be 
governed by English law. 
3 Payment 0=t2(1) 
Under English law, "gold" in a pay-
ment clause may have three possible 
meanings: (1) to prescribe commodity 
in which payment must be made; (2) to 
prescribe that payment shall be made at 
gold value; (3) to prescribe nothing, but 
to describe composition of currency pres-
ently lawful in country of payment. 
Seo publiettioo Words and Phrases. 
for other judklal COOlitrUCti011s and dad. 
Melons of "Gold". 
4. Payment 0=12(5) 
Under "coupon gold" bonds which 
were issued by American corporation in 
Great Britain in 1911 and which con-
tained promise to pay bearer £100 ster-
ling money of Great Britain at London 
with interest payable in gold, properly 
construed, issuer did not undertake to 
make bondholders whole in event Great 
Britain went off gold standard and bonds 
were payable in current British legal 
tender rather than at gold value. 
Milton Pollack, New York City (Sam-
uel N. Greenspoon, New York City, on 
the brief), for plaintiff-ap 
Ralph M. Carson, of 
Polk, 
Wardwell, Sunderland & 
to 
, New 
York City (Thomas O'G 
of 
Pol 
. 
• 
ibbon 
* 
and Francis W. Phillis, 
p 
k, 
Wardwell, Sunderland & 
len , New 
EFTA00192279

816 
202 FEDERAL SUPPLEMENT 
28 U.S.C. § 1402(b) (1952) plainly 
it
re-
late to venue and not 
o jurisdiction 
• 
• "." Abramovitch 
United States 
Lines, 174 F.Supp. 587 591-592 (S.D. 
N.Y.1959) ; cf. Hoiness I United States. 
335 U.S. 297, 301-302, 69 S.Ct. 70, 93 
L.Ed. 16 (1948). 
This issue need not be resolved here. 
for even if transfer were available, plain• 
tiff has not shown where such transfer 
would be in the interests of justice. 
Plaintiff is not barred from recom-
mencing this action against the United 
States in the appropriate district. The 
accident which forms the basis of this 
action occurred on December 16, 1960. 
Plaintiff is thus well within the two-year 
statute of limitations. 28 U.S.C. § 2401 
(b). 
Since plaintiff is neither a resident 
of this district, nor has she persuaded 
this court that an act or omission oc-
curred in this district. she has failed to 
comply with 28 U.S.C. § 1402(b). Ac-
cordingly, the motion of the United 
States to dismiss is granted. 
Settle order on notice within ten (10) 
days. 
UNITED STATES of America 
William 3Iichael AUMW also known 
as Bill 
Harold Sapperstein 
and 
Anne Sapper:lain. 
Grim. No. 24648. 
United States District Court 
D. Maryland. 
Feb. 26, 1962. 
The defendant was charged in a 
four-count indictment with violations of 
the White Slave Traffic Act. The Dis-
trict Court, Northrop, .J., held that evi-
dence warranted convictions under all 
four counts, and that conversations be-
tween defendant's co-defendants and two 
of the victims prior to transportation of 
victims, to show corroboration between 
the defendant and co-defendants, the in-
tentions of the defendant, and the pur-
pose of the transportation, were admis-
sible, though the conversations took place 
outside the presence of the defendant. 
Defendant convicted. 
L Criminal Law C=304(16) 
Federal District Court could take 
judicial notice of opinion of Chief Judge 
of District Court in prior prosecution in 
which defendant's co-defendants were 
found guilty. 
2. Prostitution C=3 
There was no fatal variance between 
first and second counts of indictment 
charging transportation of girls in inter-
state commerce for immoral purposes and 
evidence. 18 U.S.C.A. § 2421. 
3. Indictment and Information C=71 
Indictment need only furnish ac-
cused with such description of charge 
against him as will enable him to make 
his defense and as will protect him 
against double jeopardy. 
4. Criminal Law C=429(I) 
Birth certificate of girl, who was al-
legedly transported in interstate com-
merce for immoral purposes, was admis-
sible to show that she was under eight-
een, though girl's first and middle names 
were transposed on birth certificate, 
where it was properly sealed and certi-
fied. 18 U.S.C.A. § 2423. 
5. Criminal Law C=.421(3) 
Under exception to hearsay rule, tes-
timony of one as to his age is sufficient 
to establish his age. 
6 Prostitution C=4 
Birth certificate of girl who was al-
legedly under age of 18 years, and who 
was allegedly transported in interstate 
EFTA00192280

commerce for immoral purposes, was suf-
ficient to corroborate girl's own testi-
mony as to her age, though birth certifi-
cate had her first and middle names re-
versed. 18 U.S.C.A. § 2423. 
7. Criminal Law C=438 
Telephone and telegraph company 
records were admissible to establish in-
timate involvement of defendant, who 
was charged with violations of White 
Slave Traffic Act, with co-defendants' en-
listment of girls in another state. 18 
U.S.C.A. §§ 2.2421-2423. 
& Criminal Law C=423(1) 
Where several persons are jointly 
indicted for commission of crime, and it 
is proved that they acted in concert to ac-
complish their end, evidence of declara-
tions and acts of each, in furtherance of 
their criminal design, is admissible 
against all, even though conspiracy is not 
formally charged in indictment. 
18 U.S. 
C.A. § 2. 
9. Criminal Law C=k423(2), 424(1) 
Conversations between co-defend-
ants of defendant, who was charged with 
violations of White Slave Traffic Act, and 
victims before transportation of victims 
were admissible to show cooperation be-
tween defendant and co-defendants, in-
tentions of defendant, and purpose of 
transportation, 
though 
conversations 
took place outside presence of defendant, 
but testimony concerning statements and 
actions of co-defendants after transpor-
tation of victims was required to be 
stricken. 18 U.S.C.A. §§ 2, 2421-2423. 
10. Prostitution 2=4 
Act of defendant, who is charged 
with violations of White Slave Traffic 
Act, in furnishing money used by victim 
in accordance with plan of defendant is 
sufficient to establish element of induce-
ment. 18 U.S.C.A. §§ 2421-2423. 
11. Prostitution C=1 
Violation of Mann Act is complete 
when defendant knowingly induces inter-
state transportation of victim, and victim 
crosses state boundary, if defendant had 
intent that victim engage in immoral 
practice. 18 U.S.C.A. § 2421. 
202 V Su00.-52 
UNITED STATES 
AUSTREW 
Ole as 202 F Supp 816 (IOC) 
12. Prostitution C=.4 
Intent of defendant, who is charged 
with violation of Mann Act, that victim 
is to engage in immoral practice may bo 
inferred from character of environment 
and subsequent conduct of parties. 18 
U.S.C.A. § 2421. 
817 
13. Prostitution C=.4 
Evidence warranted conviction for 
violation of Mann Act. 18 U.S.C.A. § 
2421. 
14. Prostitution .2=t1. 
It was not necessary, in order to Jus-
tify conviction of defendant .for procur-
ing girl in interstate commerce for im-
moral purposes and for inducing girl to 
travel in interstate commerce for immor-
al purposes, to prove that girl actually en-
gaged in prostitution after being trans-
ported. 18 U.S.C.A. § 2422. 
13. Prostitution 0=4 
Evidence warranted conviction of 
defendant for inducing girl, who had not 
attained her 18th birthday, to go in inter-
state commerce for purpose of engaging 
in immoral practices. 
18 U.S.C.A. § 
2423. 
16. Prostitution C=4 
Evidence warranted conviction of de-
fendant charged with inducing girls to ga 
in interstate commerce for purpose of en-
gaging in immoral practices. 
18 U.S. 
C.A. § 2422. 
Joseph D. Tydings, U. S. Atty., John 
G. Underwood, and Carl J. Lorenz, Jr., 
Asst. U. S. Attys., Baltimore, hid, for 
plaintiff. 
Nathan M. Cohen, Chicago, Ill., for 
defendant Austrew. 
William F. Mosner, Towson, Md., for 
defendants Sapperstein. 
NORTHROP, District Judge. 
The defends 
Siam Michael Aus-
trew. alias Rill 
, together with Har-
old Sapperstein an 
Anne Sapperstein, 
his wife, is charged in a four count in-
EFTA00192281

818 
202 FEDERAL SUPPLEMENT 
dictment 1 with violations of the White 
Slave Traffic Act, 18 U.S.C.A. §§ 2421, 
I. The Indictment reads as follows: 
"FIRST COUNT: The Grand Jury for 
the District of Maryland charges: 
"On or about the 13th day of July, 
1057. In the District of Maryland. 
WILLIAM MICHAEL AU 
also 
known 
as BILL 
HAROLD SAPPERSTEIN, 
awl 
ANNE SAPPERSTEIN 
did knowingly procure and obtain Capital 
Airlines tickets to be used by certain 
girls, to wit. • 
• 
• 
Shirley Monroe, 
and Gladys Germaine Moyers, also known 
as Betty. McLean. in interstate commerce, 
in going to Calumet City. Illinois, for 
the purpose of prostitution. debauchery, 
and other immoral purposes, and with the 
intent and purpose on the part of the 
sok' WILLIAM MICHAEL AUSTREW, 
also known as BILL DAVIS, HAROLD 
SAPPERSTEIN and ANNE SAI.l'Elt• 
STEIN, to induce, entice and compel the 
maid girls to give themselves up to the 
practice of prostitution and to give them• 
selves wp to debauchery and other ini• 
moral practices, whereby the said girls 
were transported in interstate commerce. 
"SECOND COUNT: And the Grand Iti• 
ry for the District of Maryland further 
charges: 
"On or about the 13th day of July, 
1037. 
WILLIAM :MICHAEL AUSTREW, 
also 
known 
as 
BILL DAVIS, 
HAROLD SAPPERSTEIN, 
and 
ANNE SAPPERSTEIN 
did knowingly persuade, Induce, entice 
and coerce certain girls. to wit. • 
• 
• 
Shirley Monroe, and Cindy. Germaine 
Moyers. also known as Betty McLean, 
each of whom had not then attained her 
eighteenth birthday, to go from Friend-
ship Airport. in the State and Dis. 
Diet of Maryland. to 31ilwaiskee. Wiscon-
sin, by common carrier, to wit. Capital 
Airlines. in interstate commerce, with in-
tent that the said girls be induced and 
coerced to engage in prostitution, de-
bauchery, and other immoral practices. 
"THIRD COUNT: And the Grand Ju• 
ry for the District of Maryland further 
charges: 
"On or about the 11th day of July, 
1957. In the District of Maryland. 
WILLIAM MICHAEL AU.. 
also 
known 
as BILL 
HAROLD SAPPERSTEIN, 
and 
ANNE SAPPERSTEIN 
dill knowingly procure and obtain a 
Capital Airlines ticket to be used b7 a 
2422 and 2423 2; also, all of the named 
defendants are charged in all of the 
certain girl, to wit, Dora Estelle Heath• 
cote, also known as Laura Anderson, 
also known as Sandra Lester, in Inter• 
state commerce, in going to Calumet City, 
Illinois, for the purpose of prostitution. 
debauchery, and other immoral purposes, 
and with the intent nwl purpose on the 
part of the said WILLIAM MICHAEL 
AUSTREW, also known as RILL DAVIS, 
HAROLD SAPPERSTEIN. and ANNE 
SAPPERSTEIN, to Induce, entice, and 
compel the said girl to Rive herself up 
to the practice of prostitution, and to 
give herself up to debauchery and other 
immoral practices, whereby the said girl 
was transported in interstate commerce. 
" 
URTH COUNT: And the Grand Ju-
r 
fur the District of Maryland further 
c i. 
"On or about the 11th day of July, 
1937. 
WILLIAM 31ICHAEL AUSTREW, 
also 
known 
as 
BILL DAVIS, 
HAROLD SAPPERSTEIN, 
and 
ANNE SAPPERSTEIN 
did knowingly persuade, induce, entice, 
and coerce a certain girl, to wit, Dora Es• 
tette Hesthcote, also known as Laura 
Anderson, also known as Sandra Lester, 
to go from Friendship Airport, in the 
State and District of Maryland, to Chl• 
cage. Illinois. in interstate commerce, for 
the purpose of prostitution and debauch• 
ery and for other immoral purposes, and 
with the intent and Purpose on the part 
of the said WILLIAM MICUAE 
- 
THEW. also known al BILL 
HAROLD SAPPERSTEIN and 
SAPPERSTEIN, that the said girl should 
engage in the practice of prostitution and 
debauchery and other immoral practices. 
and thereby the said WILLIAM MI. 
CHAEL AUSTREW, also known as 
BILL DAVIS, HAROLD 
SAPPER-
STEIN. sod ANNE SAPPERSTEIN, did 
knowingly cause the said girl to go and 
to be carried and transported as a pas-
senger upon the lines and routes of com• 
mon carriers in interstate commerce• to 
wit. National Airlines and Capital Air. 
lints." 
2. Chapter 117—White Slave Traffic 
1 2421. Transportation generally 
"Whoever knowingly transports in In• 
terstate or foreign commerce, or in the 
District of Columbia or in any Terri-
tory or Possession of the United States, 
any woman or girl for the purpose of 
prostitution or debauchery, or for any 
other immoral purpose. or with the intent 
and purpose to induce, entice, or men. 
EFTA00192282

UNITED STATES I. AUSTREW 
819 
Cite as 202 P. Sum Sae °sem 
counts as principals under the Aiding and 
Chicago, the Derby Club provides an out-
Abetting Section, 18 U.S.C.A. § 2. 
let for its patrons' taste for alcohol, strip-
A motion for separate trials, made on 
dancing, sexual intercourse, and other 
behalf of Austrew, was granted on Sep- 
illicit low-life activities. Though there 
tember 26, 1961, and the Sappersteins 
was some conflict in the evidence on this 
were tried before Chief Judge Thomsen 
point, it is reasonably clear that there 
of this court and comic d on all four 
was a cot in a rear room of this club, 
counts. 
United States 
Sapperstein, 
1 
where patrons and prostitutes in the em-
198 F.Supp. 147 (D.Md.1 1). 
ployment of Austrew engaged in sexual 
intercourse. Some time prior to the pe-
riod with which we now are concerned, 
Anne Sapperstein worked at the Derby 
Club, where her principal activities were 
pocket-picking and B-drinking, that is, 
soliciting drinks from customers. 
Austrew was tried without a jury com-
mencing on October 25, 1961. 
At the 
conclusion of the evidence and upon the 
request of counsel on both sides, permis-
sion was granted for all argument and re-
buttal to be made in the form of written 
memoranda; this accounts for much of 
In July of 1957, Anne Sapperstein and 
the delay in the rendition of this opinion 
her husband, Harold, came to Baltimore. 
and verdict. 
Shortly after their arrival in this city, 
they met one of the alleged victims, Dora 
Heathcote, to whom they offered employ-
ment as a barmaid at the Derby Club. 
Heathcote accepted, and the Sappersteins 
then obtained money for her trip to Calu-
ment City at the Baltimore office of the 
Western 
Union Telegraph 
Company. 
FINDING OF FACTS 
Austrew is the manager and lessee of a 
night club owned by Amos Amadio, 
known as the Derby Club, in Calumet 
City, Illinois. One of apparently many 
such clubs in this town just outside of 
pet such woman or girl to become a pros• 
titute or to give herself up to de-
bauchery, or to engage in any other im-
moral practice; or 
"Whoever knowingly procures or ob-
tains any ticket or tickets, or any form 
of transportation or evidence of the right 
thereto, to be used by any woman or girl 
in interstate or foreign commerce, or in 
the District of Columbia or any Terri-
tory or Possession of the United States, 
in going to any place for the purpose of 
prostitution or debauchery, or for any 
other immoral purpose, or with the intent 
or purpose on the part of such person to 
induce, entice, or compel her to give her-
self up to the practice of prostitution. or 
to give herself up to debauchery. or any 
other immoral practice, whereby any such 
woman or girl shall be transported in 
Interstate or foreign commerce, or in the 
District of Columbia or any Territory or 
 
ion of the United States—
"Shall be fined not more than $3,000 
or imprisoned not more than five years, 
or both." 
"I 2422. 
Coercion or enticement of fe-
male 
"Whoever knowingly persuades, in-
duces, entices, or coerces any women or 
girl to go from one place to another in in-
terstate or foreign commerce, or in the 
District of Columbia or in any Territory 
or Possession of the United States, for 
the purpose of prostitution or debatieh• 
ery, 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 with-
out her consent, and thereby knowingly 
causes such woman or girl to go and 
to be carried or transported as a pas-
senger upon the line or route of any 
common carrier or carriers in interstate 
or foreign commerce, or in the District 
of Columbia or in any Territory or Pos-
session of the United States• shall be 
fined not more than $5.000 or imprisoned 
not more then five years, or both." 
2423. Coercion or enticement of nii• 
nor female 
"Whoever knowingly persuades, in-
duces. entices. or coerce. any woman or 
girl who has not attained her eighteenth 
birthday, to go front one place to another 
by common carrier, in interstate com-
merce or within the District of Columbia 
or any Territory or P • 
fon of the 
United States, with intent that she be 
induced or coerced to engage in prosti-
tution, debauchery, or other immoral 
practice, shall be fined not more than 
$10,000 or imprisoned not more than ten 
years, or both." 
EFTA00192283

820 
202 FEDERAL SUPPLEMENT 
This money was sent to the Sappersteins 
by Austrew, pursuant to two collect tele-
phone 
conversations 
between 
them. 
There can be no doubt about this trans-
action and Austrew's part in it, for it is 
firmly established by the records of the 
telephone and telegraph companies and 
by Austrew's own testimony. 
Part of the money sent by Austrew 
was used to purchase an airline ticket for 
Heathcote in the name of Laura Ander-
son. With at least a portion of the bal-
ance the Sappersteins bought the victim 
a set of luggage, helped her pack, and 
drove her to the airport; there they gave 
her Austrew's name and description, sup-
plied her with the telephone number of 
the Derby Club, and put her on the plane. 
This was a National Airlines flight, 
which took her to Washington, D. C., 
where she boarded a Capital Airlines 
plane bound for Chicago. 
ed.' On Friday, July 11. Heathcote arrived 
in Chicago and was met at Midway Air-
port by Austrew, who drove her to Calu-
met City and the Derby Club. During 
this drive and for some time after they 
reached the club, Austrew and the victim 
engaged in a conversation in which he in-
formed her that there were no barmaid 
positions available, as they were all filled 
by men, but that she "could either dance, 
B-drink, or hustle." Although the de-
fense has suggested that by "hustle" was 
meant "hustle drinks", the only reason-
able interpretation of this remark is that 
Austrew was asking Hlhcote to engage 
in prostitution. Setae!! 
United States, 
217 F.2d 257, at p. 262 (8th Cir.1954). 
By her spontaneous use of the disjunc-
tive in relating her conversation from the 
witness stand, Heathcote indicated that 
she was confronted with not just two, but 
three. alternatives. This was her under-
standing and it must have been Atn-
trew's intention. 
At this same time Heathcote voiced 
displeasure with the prospects confront-
ing her at the Derby Club, but, at Aus-
trew's insistence, she agreed to wait un-
til the Tuesday following her arrival be-
fore leaving. Austrew gave two reasons 
for requesting her to stay: first, so that 
he could confront the Sappersteins, upon 
their return from Baltimore, with her 
misunderstanding of the nature of her 
employment; and second, so that she 
would have a greater exposure to the ac-
tivities of the club, which it was hoped 
would entice her to at least participate in 
the strip-dancing. In the following few 
days Heathcote observed life at the Der-
by Club, including B-drinking and nude 
dancing. But she was not altogether pas-
sive; during her brief stay in Calumet 
City, she herself danced upon at least two 
occasions, stripping to the nude each 
time. 
In Baltimore, on Sunday, July 13. 1957, 
the Sappersteins met Shirley Monroe, a 
girl who was then but fourteen years of 
age. By a sequence of events similar to 
those which led to Ileathcote's arrival in 
Calumet City, Monroe and a third victim. 
Gladys Moyers, were enticed into making 
the same trip, both traveling under as-
sumed names. However, while Heath-
cote had been told that she was to be a 
barmaid, Monroe and Moyers were told 
Hurt they were to be strip-dancers. Also,.
their flight to Chicago was diverted to 
Milwaukee because of poor weather con-
ditions. Austrew, who testified that he 
had known the names of the two girls 
beforehand, eventually arrived at the 
Milwaukee airport, found the girls asleep 
there, and took them by car to Calumet 
City. 
Once in Calumet City, Austrew took 
Monroe about the town. During the 
early morning hours, in a room over 
another Calumet City bar. the Four Aces 
Club, these two engaged in sexual inter-
course. This fact, testified to by Mon-
roe, was controverted by the defendant; 
furthermore, the defense contended that 
her testimony was contradicted also by 
that of a disinterested witness, Andrew 
Rambush. The court is of the opinion 
that Monroe is more credible on this 
point than Austrew. Also, there is noth-
ing in Rambush's testimony that would 
contradict Monroe's version of the facts. 
Rambush testified that Austrew and 
Monroe arrived at his home, where she 
was to stay, some time after four o'clock 
EFTA00192284

• 
; 
EFTA00192285

PO ctiSCLA,444.51-,
eireski 
)1 
UNITED STATES v. At/STREW 
ate as 202 F.Supp. Ale 1190) 
in the morning and that Austrew left 
immediately thereafter; on the other 
hand, the victim testified that she had 
had intercourse with the defendant be-
fore—and not after—reaching Ram-
bush's house. There is no inconsistency 
between these two statements. 
The day after her arrival in Calumet 
City, Monroe left and went to Chicago, 
only to return to the Derby Club five or 
six days later. Either upon her first 
arrival in Calumet City or upon her re-
turn from Chicago—although the former 
alternative appears the more likely, the 
precise time is unclear—Austrew told 
her of her duties at the club; she was 
to strip-dance, B-drink, and "turn tricks 
in the back room." The victim testified 
that she understood the quoted phrase 
to mean that she was to prostitute her-
self with customers at the bar, the only 
reasonable interpretation to which this 
crude expression lends itself. United 
States v. Marks, 274 F.2d 15, at p. 17 
(7th Cir.1959). In any event, there was 
an agreement between Monroe and Aus-
trew whereby she was to turn over to 
him or to whoever was tending the bar 
the proceeds of her prostitution, a por-
tion of which was to be returned to her 
on a percentage basis. Pursuant to this 
plan, she in fact did engage in prostitu-
tion for at least two nights, turned 
over the proceeds to Austrew, and re-
ceived from him a percentage. 
Also, 
she once again had sexual relations with 
the defendant. 
In addition to these activities, Monroe 
explored every phase of the debauched 
world that was the Derby Club. In par-
ticular, on several occasions she per-
formed a strip-dance of a character too 
vulgar to relate. Such depravity, if it 
needs corroboration to bring it from the 
realm of degenerate fantasy into the 
realm of plausibility, was verified by a 
disinterested witness, William Zachare-
3. la making this objection. defense coun-
sel did not refer to another opinion in 
this ease, renderedoly 
Judge Watkins. 
See United States 
Austrew. 100 P. 
seep. ea2 (1).51€1.1 
). 
rich, who frequented 
during this period. 
After a few days in Austrew's em-
ployment, Monroe left the Derby Club 
and went to work at another Calumet 
City night spot, the Cadillac Club. She 
stayed there for but one night and even-
tually returned to Baltimore. 
CONCLUSIONS OF LAW 
Before reaching the substantive law 
of this case, we must consider first sev-
eral objections made by the defense on 
which rulings were reserved until this 
time. 
[1] First, at the outset of the trial 
of this defendant, defense counsel ob-
jected to the court's taking judicial no-
tice of Chief Judge Thomsen's earlier 
opinion in this case, in which the Sap-
perstei 
were found guilty.' United 
A
States 
Sapperstein, 198 F.Supp. 147 
(D.Md.1 61). This objection is wholly 
unmeritorious. McCormick, Evidence, § 
326, at p. 695 (1954). Of course, while 
the court is cognizant of the law as it 
is expounded in that opinion, the factual 
determinations made there have not in 
any way influenced those made here. 
[2,3] A further objection alleges a 
fatal variance between the first and sec-
ond counts of the indictment, both of 
which deal with the transportation of 
Monroe and Moyers, and the proof.' 
The first count charges the defendant 
with knowingly procuring airline tickets 
for the use of these girls "in interstate 
commerce, in going to Calumet City, 
Illinois, for the purpose of prostitution." 
On the face of it, this count allows two 
inferences: that the tickets were for the 
entire journey to Calumet City, or that 
they were for but a part of the journey. 
The latter inference is the more likely 
and conforms with the proof. The second 
count charges the defendant with know-
ingly persuading, inducing, enticing and 
coercing the victims "to go from Friend-
821 
the Derby Club 
4. The Indictment is set out In full above. 
See No. 1. 
EFTA00192286