*2
BROOKS,
Before EDWARDS and
O’SULLIVAN,
Judges,
Circuit
Sen-
Judge.
ior Circuit
O’SULLIVAN,
Judge.
Senior Circuit
appeal
We consider
of Walter
up-
John Henderson from his conviction
of two counts of an indict-
trial
charging
ment
him with
of 18
violation
Act,
U.S.C.
the so-called Travel
§
2421, viz.,
transpor-
the interstate
purpose
tation
a woman
having
engage
It
Henderson,
purpose,
Louise
Miles,
long
prostitute,
from Cleve-
land,
Ohio,
Kentucky, “on
October,
or about
1965.”
the 5th
year
a five
sentence
received
count,
on each
con-
sentences to run
currently.
involved,
questions
In his statement of
appellant charges
following:
First,
the indictment was
defective
not set out
number and section
pros
which made
business of
activity.
in
titution
an unlawful
dictment
out the federal statutes al-
set
violated,
legedly
ment and
to wit: 18
Sec-
the evidence
U.S.C.
It
then set out
fatal
to the Government’s
tions
and 2421.
long
so
is not too ex-
the interstate
travel was
as such variance
undertak-
en,
treme and does not
an actual
result
*
prejudice
*
*
defendant.”
manage
promote,
“to
*
*
*
*3
activity
repeating
unlawful
and in
several
times that
on
an
*
* *
being
enterprise
be met if the
a business
burden would
and
involving
the laws
[*]
that
[*]
*y>
prostitution
of
woman
the State
named
in'
of
violation
was
trans-
of
jection
travel
1965.” Defense counsel made
date
and
to
reasonably
transportation
giving
related to October
such instruction.
took
timely
“on
ob-
ported
Louisville, Kentucky,
this case we
to
“for the Under
facts of
purpose
prostitution.”
Appellant
re-
consider
that
this was error
and
quires
request
particulars.
a new
To elucidate
a bill of
trial.
for
assignment.
well
our
We find
merit
to this
basis
our
as
as
7(c).
possible
belief as to the
effect of the
Fed.R.Crim.P.
foregoing
jury,
upon
instruction
Second, that no conviction could
rather extensive review of the evidence
be sustained because there was evidence
required.
illegal
that
and
travel
trial,
prosecution,
proof
At
its
charged,
as
transportation,
solely
relied
on
physically impossible
“was
testimony Mary
Miles,
Louise
who
regularly
employed
woman was
and
appellant
said that
the date
working
during
in Cleveland
same
charged drive her
in a 1963 Cadillac
supposed
that
hours
she was
to have
Cleveland, Ohio,
Louisville,
to
Ken-
Louisville, Kentucky.”
been in
tucky, arriving there at about 3:00 A.M.
There was defense
evidence that
said
She
she went at once to her
that
transported
working
woman
in
was
working
already
sister’s house and was
alleged
at
Cleveland
the time she
was
prostitution
by nightfall
at her trade of
have been
to Louisville.
day;
arrival,
upon
the same
merely
created an issue of fact
she contacted a man
known
she had
dur-
jury.
resolution
previous
prostitute
her
activities as
validity.
is without
Louisville;
in
man
Third,
proprietor
the District
called
an establishment
giving
following
erred in
“girls, gambling
4-Aces Club at which
jury:
pa-
and alcohol” were
to its
available
trons;
manager
that she became the
“Although
indict-
Count One of the
working manager
per-
club —a
alleges
ment
trav-
—
defendant
sonally filling “prostitution dates”;
elled in interstate
on or
commerce
prostitution
the revenue from her own
5, 1965,
about October
it is
neces-
by her,
kept
received
over and
sary
prove
for the Government
salary
manager.
her
above
as
he
exact
travelled
date. Under
alleges
Miles,
years
indictment which
Louise
old at
given
transpired
event
engaged
on or about a
time
in
of trial
particular
prostitution
date the Government will
city
in
in her native
satisfy
its
es-
burden of
if it
Louisville from 1950 to 1955 and from
beyond
similarly occupied
tablishes
reasonable doubt
happened during
peri-
Wayne,
that the event
Fort
Indiana. She testified that
od of
related
from 1959 to 1964 she ceased such ac-
tivity
date
in the
indictment.
worked first
nurse’s
hospital
Government’s burden is to
assistant
at a Cleveland
occurred,
plant
event
and a variance be-
at a
then
General Electric
2, 1965,
tween the in the indict-
environs of Cleveland. On June
Louisville,
working
quarrel.
employment,
ous
however,
returned to
this last
She
while
him
there-
continued
send
met
she
money.
he
In
she re-
frequently.
be-
the summer
him
Soon
after saw
good
gan suggesting
a final
too
turned
that she was
Cleveland
basket,
looking
quarrel
Henderson over her claim
lunch
trying
becoming
persuade
her
and more
that he
daughter
more
would be
prostitu-
prostitution. There-
her to return tó
to enter
lucrative for
tion, suggesting
reason,
after she
the FBI for the
she do so Cleve-
went to
complaint
said,
Cleveland
she
“I made this
She refused work
land.
and,
choice,
justice
I
done.”
decided
take
cause
think
should
own
be
when,
up prostitution
Before The record does not tell
after
in Louisville.
us
against
leaving
obviously making
complaint
Hender-
she
Cleveland
got
son,
with old Louisville contacts
returned
touch
*4
ready
carrying
promptly
resume her
the time of trial she was there
and made
began.
prostitution.
it
on her
career at
where
trade of
subject,
Questioned closely on the
she
Henderson took the stand and denied
although
impor-
transported
that he
Mrs.
Louis-
Henderson
Miles to
insisted
1965,
5,
any
prostitution,
it was
on
or
to reenter
ville October
at
other
tuned her
pimp
go
he
to do time. He denied that
her idea that she
to Louisville
was
describing
person,
there,
for her or
other
several sisters
as
She had
so.
gambler,
does himself
her mother and
She
small-time
work-
were
father.
ing
quite shady
participating
in
at
establishment
not describe Henderson as
Club,
meeting
getting
up
Cleveland. He told of
Mrs.
in
set
the 4-Aces
her
at
insisting
in
except
Miles
their
he drove
1965 and
whatever
and
for
when,
gave
relationship,
ended in
her
she
account
by him,
or
claimed
Mrs. Miles
him
nor of the time
wanted
his activities there
marry
leaving.
upon
He
of his
She testi-
her.
testified
circumstances
expressed
so,
pimp
his
do
she
Henderson was her
reluctance to
fied that
among
him, saying,
sent
threatened
other re-
that for some 23 months she
money
him
marks,
go
partially
“If I
to the FBI
told
She
from Louisville.
you
Kentucky,
transported
supported
them
you
me
these statements with record
going
penitentiary.”
are
to the
refusal,
Per-
evidence.
sisting
relationship,
in
their
his
Mary
Miles
two children born
threat,
was,
whatever
ended with her
marriage
which
ended in divorce.
Thanksgiving,
“If
married
young people
in
remained
Cleve-
These
get ready
penitentiary.”
intervals,
were,
frequent
at
con-
land and
in-
fined in reformatories or other like
There
sufficient evidence
was
complaining
It was
Miles’
was
stitutions.
Mrs.
Henderson
part
pimp
he
women.
it was
Henderson’s duties witness’
as was
other
prison
pimp
for receiv-
as her
to see to the welfare
He had served
term
goods
generally
care
the house
these children
stolen
was
they
character,
disreputable
lived
she carried on
where
while
so were
people
spent
Hender-
time.
testified that
with
he
his
Louisville. She
whom
however,
part
him,
son failed
out
The crime
bargain,
kept
money
pimp
she sent to
but
not that he was
otherwise
continued, however,
filthy character,
to send
him.
money
but
on October
She
transported Mary
from
to him.
It will be sufficient
he
Miles
say
could
so that she
that Mrs. Miles testified that she be- Cleveland to Louisville
gan
engage
in 1965
Thére
evi-
her service for Henderson
money
find
him
into
dence from which the
could
and continued
send
Mary
resume
of a
that he
Miles to
said that at the time
visit
induced
1967. She
Thanksgiving
prostitution
he received sub-
her to Clevelandat
earnings
parts
such.
of her
she and
had a seri-
stantial
leged
give
govern-
to his
need not
attention
dubious
the indictment.
We
proof,
conforming
explanation
however,
re-
of the reasons
for his
ment’s
strict-
ceiving large
money
ly
indictment,
amounts of
Mrs. Miles
was that
her.
on
5. Faced
October
unimpeached
with General Electric’s
rec-
put
employment
Defendant
evidence
ords,
prosecution
attempt
Company
records of the General Electric
wrong
to show that Mrs. Miles could be
Park,
plant at
Nela
in the environs
dates,
right
her
but
on the fact of
Cleveland. These established that
“reasonably
her
at a date
working
day
Miles was
on the
she
there
related” to October 5. The defense was
conveyed
contended
government’s proofs
entitled to meet the
probative
value of
Louisville.
contrary
might
per-
which
unimpeached.
these records
These
trip
suade the
day
records showed that on the 5th
happen
did not
consider that
all. We
October, 1965,
every
day
other
the Court’s instruction was calculated to
thereof,
through
one in October
the 28th
possibility.
foreclose that
day
employ-
which was the last
of her
ment, Mrs. Miles worked the
shift
second
says:
brief to us
midnight.
from about 3:00 P.M. to
Fol-
assump-
“Defendant makes the fatal
lowing
the work
October
accept
tion
was forced to
punched
A.M.,
out at 12:13
*5
on October 6.
hearsay
the
business
records
over
Mary's
testimony.
direct
Introduction
completely
credible
evidence
exception
of business records is an
to
raised a clear
issue of fact as to
hearsay
Palmer,
rule. Hoffman v.
truth of her claim that she was trans-
(2d Cir., 1942),
RQ
they
Michigan
Appeals
held the
weight
Court of
in their
improper, saying:
it deserved.
felt
judge did,
repeat,
“To
as the trial
Judge’s accused instruc-
The District
time is not of the essence did not re-
rule
tion was
correct statement
jury,
spond
raised
applies
a variance
when there is
i.e.,
they
to convict must
confine their
charge and the
between
indictment’s
deliberations
whether
Here
it.1
evidence offered to
September
offense occurred on
28.
there was no
and the
such variance
Based on all
charge,
effect, wiped out the
Court’s
they
so
should
confined in
probative
clear
of the defendant’s
value
instructions,
People
clear
v. Hunter
crime could
evidence
(1965),
Mich.
132 N.W.2d
set out in the
have occurred on the date
People
King (1962),
95.
Cf.
solely
on in the
indictment
relied
Mich.
219.
114 N.W.2d
proofs.
“
prosecu-
‘It is
settled
well
Neither
the brief
nor
tion is
entitled to some latitude
fix-
appellee
date, but, having
discloses
relevant
once identi-
particular
research
the matter
consider
under
fied and selected a
trans-
action,
ation. While we
satisfied
it must
then stand or fall
require
facts of
Gillespie, Michigan
this case
the de
the election.’
make,
pro
cision
(2d ed),
our own research
Criminal Law and Procedure
supportive
vides some state law
of it.
People
Brocato,
In the case of
“The instruction
allowed
Mich.App. 277,
(1969),
evidence that Henderson had prostitute on Octo-
ed his Louisville insistence
ber 5 and Henderson’s only transport on the he not did claimed, done so. never Jerry al., etc., J. HALLBERG et depends The federal case Plaintiffs-Appellees, upon establishing defendant of- fended a federal al., Charles W. HILBURN et Defendants- charged. manner Absent the Court’s Appellants. instruction, sophisticated accused might No. 29047. found that regret proved had not its case. We Appeals, United States Court of the learned need to reverse but feel that Fifth Circuit. Judge unwittingly gave in- District Nov. deprived struction that the defendant say a fair We are trial. unable quoted harmless er-
ror. and the vacated
cause remanded for newa trial.
EDWARDS, (dissent- Circuit
ing).
Respectfully, I dissent. record, majority as the seems
agree, present jury question. If *7 so, appeal from verdict guilty, required we are to review the
evidence from the
most
view
government.
favorable to the
Glasser v.
States,
60, 80,
United
315 U.S.
62 S.Ct.
dictment to have “on or about Oc- 5, 1965”)
tober was not a material ele-
ment of the offense itself. Stewart v. States, (8th United 395 F.2d 1968). Cir. Judge’s The District instruction that did not have to good supported by
“that exact date” is
authority. States, Ledbetter United 606, 612, 170 U.S. 42 L.Ed. S.Ct.