*1 In the motion. renewal of his dictate impediment appears
meantime receiving re- treatment
to his
quires.
Appeal dismissed. America,
UNITED STATES of Plaintiff-Appellee, JENKINS, Defendant-Appellant.
Eli
No. 29684. Appeals,
United States Court Fifth Circuit.
April
Rehearing Rehearing Denied and En Banc June Denied
statute. The essence defense of Jenkins’ conduct, that his whatever been, moving was not force the inducement Feldman to travel as charged. the view most
Taking of the evidence *3 government favorable as is Fla., Hawes, Tampa, C. J. Mark R. rule, 1942, Glasser v. United Terry Fla., Petersburg, Abernathy, St. 60, 80, U.S. 62 S.Ct. 86 L.Ed. Clearwater, Fla., defend- Furnell, A. Cir., Strauss v. United ant-appellant. 926, 928, was as Briggs, Atty., Bernard L. U. John S. follows: Atty., Jr., Tam- Dempsey, Asst. H. U. S. On November accom- Jenkins Fla.,
pa, plaintiff-appellee. panied Petersburg members of the St. Quarterback Georgia Atlanta, Club to BELL, GÉWIN, and Before games. for a weekend of football *, Judges. Circuit ALDISERT stayed members of the At- club at Upon lanta Baltimore Jen- Hotel. arrival Judge: BELL, Circuit assigned kins was to a anoth- suite with Appellant, a Act a Mann case. This is er on the member fifth floor. lawyer Petersburg, Flor- practicing in St. evening, through That of the efforts a ida, before and convict- tried of some the members and other various charging a ed indictment on a one count persons, prostitutes several came to the 2422.1 He was of 18 U.S.C. violation § began successfully plying hotel and their years imprisonment four sentenced to Feldman, professional trade. a Diane $5,000. and The trial consumed fined prostitute accompanied of three vig- approximately and was a six weeks members to a room in the After hotel. throughout. indicia orous contest One completing her their room business in vigor of in is seen the fact left and went to she There elevator. urges assignments pellant fifty of now she met another member of St. Pe- Upon tersburg group par- record consideration of the error. who to a invited her assignments error, ty progress after in and of and then in suite. all Jenkins’ argument, find no er- extended oral She was introduced Jenkins and judgment accordingly ror affirm and had sexual him intercourse with and of court. district attending group others who were charged Jenkins indictment During party. the course go Feldman to from At- Diane induced recog- evening that he Jenkins told her Georgia Petersburg, lanta, Flori- to St. and seen nized recalled that he had her da, interstate common carrier via for her arrest warrant St. Peters- prostitu- commerce, burg. purpose charged for the in the warrant She larceny. grand debauchery He told her of the with tion in violation and * practice engage girl by designation. Circuit, sitting in .the or shall Third Of the any debauchery, prostitution other or or practice, or with- with immoral whether or enticement Coercion § 18 U.S.C. thereby knowingly consent, out her and female go girl knowingly and to persuades, such woman or causes Whoever passenger transported entices, any duces, or be carried woman or or coerces any upon place common go the line or route of girl from one to another * * * * * * foreign interstate or carriers in carrier interstate or commerce commerce, prostitution not more than purpose shall fined or de- imprisoned pur- $5,000 any five bauchery, more than or or for other immoral years, purpose pose, or both. with the intent and person part that such woman of such bondsman, agreed represent her get if she in serious trouble could she previously for the discussed fee. handle and that could did not return he urged get her her off. He her case and appeared On November 1966 she following Biltmore the to return to the pre- Court for a in Justice the Peace
night her to introduce when hearing grand larceny liminary on the committing magistrate), judge (a charge. transported She was signed warrant, who from a black Cadillac owned Jenkins it. could discuss staying the hotel she was at the where Jenkins, part- night, Saturday, following direction of Jenkins. On bondsman, Abernathy, ner Estes the hotel returned Jenkins’ again participated a law all in acts of clerk were vehicle. suite. She persons various sexual intercourse hearing by represented She was at prosti- as did several other the room During Abernathy. Jenkins *4 there she there. While tutes who were hearing, argument quite heated. became Dadswell. met Justice Peace judge and retired cham- The counsel to urged They her case and he discussed out and told Feld- bers. Jenkins came stating Florida, that her to return to something wrong man that was because lawyer he a and that Jenkins was fine judge a from the one he ex- different things that she would could so handle pected presiding and that she would was go jail. not have to to go judge and have to to bed with charges get in order to further with Jenkins talked about She agreed. case was dismissed. She The charges he told her at which time dismissed. larceny grand a the offense of extra- serious one and that she could be evening next, That she was tak- or again dited held without He and bond. she en to the Gulf Winds Motel where represent her in the case. offered to engaged seven in sexual relations with have fee to that she would men, according testimony, which to her prostitute a to her furnish services partici- was corroborated some partner one time. and his law Jenkins group were Jen- pants. Included find He her that she could also assured attorney kins, Abernathy, the state’s prostitute plenty Pe- ás a in St. of work afternoon, prosecuted her that who had tersburg help find her that he would and Manderscheid, bondsman, Estes the and go-go job He then stated a as a dancer. judge trial owner of motel. The her to ride back St. he wanted was not involved. Petersburg him and on the train with his association with Jenkins continued way. pay de- her She that he would days. during the several Feldman next on this offer to return the train. clined JayCee convention her that a He told Sunday her talked Feldman with On progress he and that Orlando Aft- was then in Florida. husband who arrange to take for Manderscheid could Jenkins, relating he incident with er carry her trade. She her there to on if return she should told her she was not interested. up thought clear could Jenkins charges against Feldman also her. 22, 1966, Feldman On November Petersburg Depart- Police called the St. Carr, a peared Richard before an out- there was verified that ment and Peace, a traffic ticket on Justice of against standing grand larceny warrant again represented charge and was his ho- Jenkins at then called She her. again Abernathy. Jenkins Jenkins offer, accept had al- tel his but get se- into that she reminded her could night ready she Later that checked out. agreed with Jenkins rious She trouble. Petersburg. plane took a to St. Jenkins, sexual relations with Monday Abernathy, judge for return she contacted Jenkins and the On arranged a office. He went their services. There immediately having responded fol- her for “talked”. Feldman She also testi- lowing Abernathy appearance. fied this court threatened her waving opener a letter or her knife arranged days Several later Jenkins keep quiet face advised her Jemison, for Feldman contact leave town. cus- had his clients friends. Jemison arriving developed pre- It in Florida. tomers who were viously negotiated $100.00, story price of Feld- related her For a to the vice night squad Petersburg spent police man one of cus- the St. these force. police Happy Dolphin at the Inn. advised her tomers town. leave story She also tried to sell her without During December, the first week newspaper. success to a local The news- to a took Feldman house Jenkins paper county referred her to the sheriff he owned in a residential area story who listened her re- and then Petersburg. testified that Jen- St. She prosecution ferred her to the FBI. This kins her the house wanted to live followed. prostitutes and three with two other girls would continue with men. I. profession men their while burglarize as a base use the house group appellant’s One conten neighborhood. further in the She homes judgment tions notion turns gave check testified she Jenkins acquittal granted should have been months to cover the first rent. allegedly $130 *5 because the evidence shows check was on her husband’s account moving The that Jenkins not the was induce forged to it and his name with Jen- she ment for Feldman’s travel in interstate watching. never moved argument kins Feldman commerce. This on based house. into this rejec appellant what characterizes as 9, 1966; made a Feldman tion of his illicit offer to On December return to St. Petersburg Quar appearance, this court third time on the train with the only Abernathy. light pearing That eve- terback Taken in most Club. the Jenkins, ning, government, at the of she the instruction favorable to Glasser v. Lounge. States, supra, at the Office sur Carr United the met They rounding subsequent the Mo- from to Venice offer and went the the engaged participants rela- she sexual conduct tel where of various after the Petersburg testified that Jen- Feldman to tions She returned with Carr. St. only temporarily rejected to told her do this. shows kins that she Feldman reversed her course offer. the incident with About a week after talking with her was after husband but Judge Carr, tried suc- Feldman without appellant unable to contact at his hotel money from several of the cess to obtain prior departure. to his persons in this affair. She tes- involved money Appellant that the needed tified she maintains that the real reason give husband, so as to return New York ducement Feldman’s her was to was expecting. baby mother, police In offi- she was the advice of a and birth outstanding. connection, at his met Jenkins cer that warrant she was adversely question to return to New This was decided office seek funds fact appellant by jury her related to He refused and and there York. complained about husband had that her matter ends. given and that rent check for the argues the infer- also good. obliged had to make been on from the evidence ences be drawn jury phoned and not warrant later Carr and Estes inducement would She excluding every hypothesis money. reasonable relying for Estes asked them directed McTyre guilt, on to come to was that of her his office where she save Cir., 1954, States, 65. by Abernathy 213 F.2d 5 met and Jenkins. After United evi- refusing money, pertains circumstantial her she This rule demands for not to where the harm those testified threatened dence cases 434 proof by 421 F.2d It less direct evidence. Vick v. was than the con Cir., States, 1954, 216 F.2d duct found of within bounds United be States, supra. judicial propriety HeLlman v. United Strauss v. States, Cir., F.2d transportation here The interstate carrier, regard- complaints Airlines, a common series of disputed. prostitution ing fact of the court’s treatment defense not of Petersburg debauchery presence counsel both in and of St. by out category.
clearly evidence. established direct of fall into the same in- They of considered us in was also direct evidence been There part long sharply This context of a contested on the Jenkins. ducement and, Nunnally balance, say v. United on test of trial we cannot meets the Cir., 1961, trial from the afforded Jenkins standpoint jury. question part Assum- of fairness on makes however, proof ing arguendo, acceptable that the court was in accord with circumstantial, judicial propriety the evi- or due inducement was standards process. sufficient as a whole was dence taken reasonably conclude episode the court where guilty beyond a reasonable Jenkins was impa unusual irritation and evidenced Andrews, 5 States v. doubt. United regarding propensity for tience moving counsel’s F.2d 952. place took mistrials the cross-examination last witness Nunnally su v. United presence and was out pra, also forecloses the claim Moreover, any possibility hold that prostitu insufficient as evidence was rulings harm from the court’s and Jenkins tion because charge having to the e., cured mind, purpose in i. another jury.2 Nunnally teach dismissed. the warrant purposes under dual can es that there only III. prostitution need *6 this statute-— Nunnally purposes. principal of the Appellant numerous makes argument destroys Jenkins that also the concerning alleged prosecu complaints would an carrier did not know interstate during of torial misconduct course the Petersburg. employed trip in the to St. as to the trial. are so attenuated Some here a common It is sufficient as require no with discussion. Those would carrier in interstate commerce substantiality of modicum will be consid likely utilized. be and was The first of these concerns ered. appellant crimi of as a characterization II. government’s opening in the state nal group of con ment to the This Appellant’s next characterization alleged judicial the of made in the context what do with was government tentions has to prove. expected No are to These contentions misconduct. by complained objection appellant and made first act without merit. having request ad ac was no for corrective trial court of concerns the government to the failure crime the trial court. The witness of tion object vised assignment er did not rise of perjury. to this This occurrence is fatal of States, Fogarty 5 which we United the the conduct ror. See v. level of Cir., Bridges v. Reed, Cir., 1959, 5 F.2d 201. faulted in States v. 263 Cf. United banc, 1967, 435, States, Cir., F.2d 22. en 5 376 1969, 414 F.2d reversed during duty trial the is of the to admonish have been addressed “It Court the cause, attorney who, at times that all his of this ease. Remember an out zeal for liberty disregard keeping you, jurors, something at are which is not in as does arriving procedure. in at Court all comments of the rules of evidence or the your findings against the facts.” the own as to You are draw no inference an of the Court side whom admonition
435 argument Appellant’s on Hall reliance defense Without counsel. Cir., 1969, putting imprimatur States, every our remark Cir., 1955, States, prosecutor, perceive the v. United made Steele we 628, plain misplaced. the sense Here error which F.2d should be in noticed gov- objection remark made was absence of as was the case. appel- expected prove that ernment lawyer, IV.
lant,
had conducted
a criminal
those he
himself so as to become one .of
Appellant maintains
re
usually represented.
this
We construe
versible error was committed when the
nothing
statement
than a
more
government
permitted
put
two
government
appel-
prove
expected to
witnesses
on the stand when it was
guilty.
lant
in
known
claim
advance
against
privilege
self-incrimination.
Appellant
further
attacks
leading
In the
case of Namet v. United
prosecutor
conduct of
1962,
373 U.S.
83 S.Ct.
wit
his examination of several
course of
Supreme
10 L.Ed.2d
Court not
complaint
gravamen
nesses.
ed that
the lower courts had
suggested things
been re
prosecutor
is that
versed
two
through
circumstances. One
inis
were
flagrant
of a
case
conscious and
framing
ef
questions.
of his
We
prosecution
fort
to build a
carefully
case
com
examined each statement
based on the unfavorable
inferences
complaints
plained
to be
and find the
privi
which inure from a claim of
ap
merit.
is true as
without
While
lege. The other is where the inference
prosecutor
pellant points
out
weight
government’s
adds critical
suggest
there is other evi
cannot
subject
case
a form not
to cross-ex
on which the
dence not before
amination.
Neither
these
circum
the defend
convinced
present
stances
here.
guilt,
ant’s
McMillian v. United
appel
find
F.2d
privilege
Carr elected to
use
regard to
lant’s contentions
in this
selectively.
testified
He
numerous
without
substance.
nonprivileged facts which
tended
cor-
government’s
roborate
His
case.
urges
prose
claiming
privilege
reasons
cutor committed
reversible error
deciding
some instances
an-
argument
final
before the
sever
swer
in others
not clear
from the
are
particulars.
objection
al
No
was made
instance,
For
claimed the
record.
by defense
*7
States v.
counsel. Cf. United
privilege as to whether he knew the de-
Co., 1940,
Socony-Vacuum
Oil
U.S.
fendant,
answered that he did recall
but
811,
60 S.Ct.
437
testimony
peared
death in a fire in
that Feldman’s
before
New York
grand jury
recorded. Cf.
first
was not
weekend of the trial.
The trial
judge
Howard,
Cir., 1970,
prose-
v.
5
was notified
United States
jury seques-
Equating
effort
to call
cutor and
433
he ordered the
F.2d 1.
grand
using
grand jurors
keep
a
'in order
in lieu of
tered
this information
argu-
purposes
part
jury transcript
from the
for the
This act on the
showing
partic-
solely
ment,
a
was no
court was done
defendant’s
protection
required
dis-
ularized
as
before
and there is no
need
evidence that
may
anything
grand jury proceedings
irregular
closure of
occurred.
To the
States,
contrary,
jurors
permitted.
v.
all of
Dennis
stated on
Monday
855, 868-875,
morning
they
1966,
86 S.Ct.
384 U.S.
had
Posey
nothing through
1840,
heard
16 L.Ed.2d
v.
the news or oth-
Cir., 1969,
545,
judge
erwise
about
the case. The
or-
Feldman,
speculate
why
in-
dered
Here
statements of
them not to
several
grand
vestigative
jury
files,
up.
practice
state
had
and a
been locked
The better
transcript
the de-
made available to
would have been for
were
the court
to have
addition,
promptly
In
without a
fendant.
federal
defense counsel
advised
considering
grand jury transcript,
prosecu-
information
from
received
transcripts
tor,
and state-
or
that all available
to have
promptly
counsel,
made availa-
ments of Feldman
been
advised defense
so
might
Jenkins,
perceive
are unable
defense
ble to
counsel
have been
advantaged
prosecution
respect
sequestra-
consulted with
how
to the
find, however,
tion. We
over the defense.
defendant
prejudice
suffered no
from
manner
Vi.
in which that matter was handled nor in
sequestration.
find no
in the claim
We
merit
exculpato
prosecution
withheld
VIII.
ry
evidence from Jenkins
violation of
Brady Maryland,
U.S.
urges
the follow
1194,
5
319
410.
instruc-
charge
given.
proof
regarding
was
of
tion
burden
vitiated
where
same
We
“(i)f
any
language
pointed
an in-
harmful
in that case that
effect which
out
complained might
produced. No
or set of facts must
of
have
ference from a fact
evidence,
language
opposing
in
such
was
be
curative
included
overcome with
charge
Mann, Henderson,
presump-
in
or
then
a
the inference becomes
South,
supra.
places
tion and
a burden on the accused
Cf. Estes v. United
States, Cir., 1964,
presumption.”
5
319 F.
335 F.2d
overcome that
609.
given including
charge as
at 409.
the added lan-
2d
guage
Devitt,
is taken
from Mathes
However,
subsequently distin-
we
Jury
Instructions,
Federal
Practice
guished
in Helms v. United
Mann
Supp.).
(1968
10.06
States,
Cir.,
§
In
340 F.2d
gov-
that ease we noted
while
assignment
This
of
is
error
always
ernment
bears
the burden
assignment
tangentially
related to
proof, in Mann the sole defense turned
charge
error that
conference which
e.,
state,
on mental
i.
that the defendant
place
reported.
in
not
took
chambers was
willfully
did
or de-
not intend to
evade
request
reported
that it
There
imposed.
tax
held
feat
We
the income
statute,
753(b),
and the
28 U.S.C.A. §
result
that a different
obtains where the
requires only
proceedings
open
in
objective
around
conduct.
contest centers
reported.
We
hold
States,
See
also Henderson v. United
charge
in chambers
not
conference
Cir., 1970,
counsel
presented. assign-
By summation, way every carefully consid-
ment of error has been Those not discussed are deemed
ered. require no dis- without merit Appellant his due un-
cussion. received system. represented He was our der jury trial in a able and assiduous counsel prejudicial The facts were
free of error. to make issue
sufficient
redemption for There the thé
matter must does end.
Affirmed. REHEARING
ON PETITION FOR PETITION REHEAR-
AND FOR
EN BANC PER CURIAM: Cal., Chin, Fresno, Christopher M. J. Rehearing for Petition is denied appellant. panel and no member of nor Atty., Schouweiller, Las S. Bart M. U. regular active on service Court Vegas, Nev., appellee. having requested polled the Court HAMLEY, Before DUNIWAY rehearing (Rule banc, en 35 Federal HUFSTEDLER, Judges. Circuit Procedure; Appellate Rules Local 12) Fifth Rule Circuit Petition for PER CURIAM: Rehearing En Banc is denied. appeals Krenz from his con- violating
viction for 18 U.S.C. § (passing money). counterfeit argues Krenz that certain counterfeit improperly evi- bills were admitted into trial dence and that comments argu- judge prejudiced Neither him. ment is meritorious. America, UNITED STATES of introduced eleven Government Appellee, passed bills that the same Krenz evening gambling in a Krenz casino. Appellant. Thomas KRENZ, Leo inadmissible contends the bills were No. 25866. proper The first want foundation. Appeals, United States Court bill introduced was to Krenz linked Ninth Circuit. testimony That of two witnesses. May together testimony, with the circumstan- evidence, adequately tied Krenz
tial (See eleven v. United all bills. Carrullo (8th 1950) 745- F.2d States Cir. arguments 746.) addressed to His are admissibility, weight, rather than the evidence.