*2 DENMAN, POPE, Before BONE and Judges. Circuit POPE, Judge. Circuit appellant, Langford, was convicted Act, of violation of the Mann 18 U.S.C.A. The indictment was 2421]. § [now § Count two counts. One transportation woman, of a one Carol commerce, Jones, foreign from Los California, County, Tiajuana, Angeles Mexico, purposes prostitution, de- bauchery practices. immoral and other The charged transportation of second count -purposes, same woman, for the same County. day Tiajuana Convic- men Angeles and that she never received less Los per than only. Langford brought tion man. $10 Count Two cus- was on men, tomers to her as did other whom she the time showed termed “trick hustlers” and who received One, Count mentioned *3 a fee for these services. soon built Jones parties married to Mexico went to large up steady a “call list” of customers. charged there, and that the money All over Langford. turned trip. in Count Two was their return urged appeal upon this that notwithstand- that, although testified she was in Jones subsequent prior ing the and Langford, love with left him she twice in prostitution, trip, going and the entire both time, March. The first her in saw a under the returning, was an innocent one car with dragged some men and her out States, 322 rule of Mortensen v. of it so she returned to his home. She left 1331. 369, 64 time, slapped him second because he had said, against Therefore, it is the verdict is her and a beaten her with On this belt. law, supported evidence. by and occasion private she took a in a room home did engage and prostitution in for sev- judgment It is also contended that the days. eral evening April 5, On the certain re- because of reversed Langford telephoned per- and her asked including by prosecutor marks made mission to come to her. He very see came upon failure defendant to of the comment humbly, protesting her, his love for and because the admission of and proposed marriage, subject a had Jones be irrelevant certain evidence claimed to previously accept- to him. broached Jones prejudicial. and this proposal although Langford ed told question of the A of the consideration her she would engage still have to a con- sufficiencyof evidence to sustain prostitution for a month two until his complete requires a rather review viction paid car was However, for. at this time testimony. of the anti-miscegenation there was an statute in parties effect California1 so decided witness, Jones, prosecuting was white Tiajuana, Mexico, to drive where the college degree a graduate, a and permitted marriage between law the races. applied She psychology. sociology employed worker in Los had been as a case night That Bry- a man named Jones Lang- met Angeles. She that she testified ant, a Langford, friend of were driven ford, Angeles night at a Los club Negro, a Langford Tiajuana. in his automobile to voluntarily his home and that she went they they When arrived found that it was A January, 1948. week to live with late marriage performed. too to have the Langford brought four sailors later, or so Bryant Both testified that the Jones perform him and her to home with asked trip Tiajuana was to have intercourse with them. She acts of sexual marriage performed. first, Lang- but consented refused at Tiajuana they went to nightclub. a slapped her. At this time there was ford they testified that while were there Jones Bryant present whom described girl another Jones sing. was asked to While he was prostitute Langford. for herself a singing, she decided that she would like to objection, testified that she had Over Jones photograph a Langford have taken of girl give Langford money seen other they nightclub herself left the to seek a several occasions. photographer. they one, Before however, money Langford approached received from She turned Langford. Although talking sailor, the sailors over she sailor. After with the Lang- prostitute until this turned to had not been time ford her and said that they need- money. thereupon one. She testified got then became that ed some She she into Langford’s and seven between three the back seat car she entertained with the Code, Lippold, 1948 in Sec. This tober Perez 1. Cal. Civil 32 Cal. held unconstitutional Oc- 2d 198 P.2d statute

SI prostitute Los and, sailor of a Langford proprietor while drove Angeles town, prostituted herself to outskirts of “callhouse”. paid Langford sailor. The sailor case, supra, man and In the Mortensen they approximate- nightclub returned to the wife, proprietors fame in house ill of a ly twenty they left it. minutes after had Nebraska, prostitutes allowed two of their Bryant’s point testimony conflicted at this accompany them aon vacation sang with that that he He said Jones. City, Salt Lake Utah. It was only for a short time—five minutes at the they Act because had the Mann violated Langford most—and that brought girls had back Salt nightclub when he left their table City Lake girls to Nebraska and the *4 sing- were there when he back after came occupation upon resumed their their re ing. they He had left did think Supreme through turn. The Mr. Court nightclub. the Murphy, language held that the of Justice Langford party then San drove the to the upon Mann use Act “is conditioned the Diego they spent night where the in a of transportation pur the interstate for Early morning hotel.' of the 6th of the pose of, effecting or or as a means of April, they Tiajuana, drove back to where facilitating, illegal the the commission of Langford signed “marriage pa- and Jones trip acts. Here the round had interstate pers”. Although marriage the certificate of purpose no such in way and was no related days was not received until some later subsequent to the immoralities in Grand through the mail considered herself Jones Island.” Langford married this time for- to from

ward. The rule is that the domi conceded transporta Bryant nant motive for the interstate Langford then drove Jones tion Bry- purpose pro of the victim Angeles. back must be the to Los Both Jones statute, we purpose ant scribed the but think the trip testified that the justified was in Tiajuana Angeles finding from that this case get to Los was to home, fell within the rule. In its to place they They to to the lived. get jury, directly Langford’s went advanced two to house where (1) Langford theories: girl living another whom married she had Jones primarily purpose for the of night “kicked out”. That to caus they went Jones her night they ing club to return to and continue at which had met. to prostitute; (2) work as a Langford said that asked for him her she Jones purpose up profession Langford her the dominant in again wanted to take Tiajuana night bringing but she declined in back from Los view of the Jones ‘iight. Bry- Angeles wedding get fact that it was her was to her back to work im mediately earning money ant did not hear this conversation. for him. In the Jones case, following night, jus her work Mortensen there was resumed no evidence April 7, tifying that, prostitute continued herself inference had the Morten Langford Lang- girls for several weeks. sens not taken the on the for interstate trip, brought girls customers to her the vacation would ford after have refused before, perform proscribed marriage many he had but activities for the Here, however, by this time she was well Mortensens. since established. fact that Langford again Langford left some time had used fo'rce threats After Jones him, keep got working day “tired of all that she had because neverthe she Jones appreciation, again, night, there is no left him put all less that he you, bought they gripe just day her back to work nothing is ever after the you pair “marriage”, want a new warrant conclusion that about journey May marriage In she went to work as a the interstate were shoes”. Haff, 64 S.Ct. 3. Hansen v. 2. 322 U.S. 968; L.Ed. Mortensen 7S v. United supra. to, trip but nothing parts permit a device the words into two in- as to statute, “induce, entice, compel her ference that the the drive to give practice prosti-' up herself Salt City pur- Lake was innocent while the pose tution”. The facts here are such journey the homeward to Grand jury might well that the reason Island disbelieve But in that case criminal”. marriage the usual one. journey outward was innocent it was admitted that no immoral acts had been ap other cases Here, committed trip. during we pellant readily distinguishable relies are seen, have government’s was the position the same reason. Van Pelt enterprise, trip the whole to Mex- States, 4 Cir., object ico, marriage, return, and the were un- interstate towas take get dertaken to back to work as a Jones defendant’s Virginia mistress to prostitute. If the .testimony of her- Maryland stay in the latter state until credited, self the consummation of this their child was born. The was held objective begun while played part have inducing the Mexico, in Langford’s incident car. Maryland. commission of a sexual act The contradiction Bry- of this incident in *5 States, Cir., Fisher v. United 266 F. testimony may explain ant’s jury’s purpose trip of the was to We acquittal verdict. do not think the on visit girl’s Although mother. illicit the first count is inconsistent with con- return, relations were resumed on the the viction on count, the second but even if it “ * * * court held that the mere fact were, consistency in the verdict is not re- journey that a from one state to another quired. Dunn v. United is intercourse, followed such when the 390, A.L.R. journey purpose, was not for that but 161; States, Cir., Catrino v. United wholly reasons, for other to which inter 176 F.2d 884. regarded course was not related cannot be Appellant argues also that the ver Here, as a violation of the statute.” supported dict is not by the evidence be of ap view the unusual attitude of the intent, cause there no evidence of pellant marriage, towards the jury we think only because the evidence aof self-con were warranted in finding that so far as prostitute fessed Langford connects with appellant was his dominant concerned mo prostitution. acts of While it is true marriage get tive for control of Bryant both that testified that Jones relationship and re-establish a Jones purpose their in making trip to Mexico pander profit prostitute from which he arrange was to marriage, and their extensively, trip, ed that the mar purpose in returning get home, towas -this all, riage primary end in view. bearing little Langford’s purpose has Appellant argues that the verdict of and intent. It is elementary that the in compels tent, guilty” purpose “not on Count One a simi necessary motive for the may lar verdict on Count Two. This contention establishment of crime rest in inf relationship argument stated, to his And bears a close erence.4 as we have we think ample improper government that it was there evidence from which the Langford transport jury to indict him two counts because the could infer that trip as a whole. ed should considered This with intent induce her to upon language prostitution. life latter is based return her As to case, supra, Langford’s in Mortensen where connection with immoral Jones’ acts, resumption by judge trial jury cautioned the it was said testimony practices immoral after their was to be girls of their received with Jones’ instructed, jury from their vacation did not caution. So were return en arbitrary splitting of the round titled to believe it. justify “an holding Reginelli, Cir., 4. See United States for a case so F.2d under this statute. urged or at were It is next the time these acts spring, charged. erred in admitting last the acts the dates Jones’ Lang- testify to prostitute give fact, she money saw a As a matter could not ford. It was irrelevant occupation is said that his had an occu- he has not ” * * * prejudicial. “The in disagree. We pation point the court At this disposition tent with does interposed, which There is no a moment. .one “Just particular effect, act must be ascertained from coun- evidence in to that the record and at the acts and declarations before sel. The are instructed to time; previous and when a act indicates counsel’s remark.” Counsel for the de- purpose, existing known rules objection fendant the ob- still made no may fairly presumed jectionable human conduct remark, indeed, and, they raise continue and control the defendant point appeal. the first time on this question, doing of the act pointed judge It is now out that the trial admissible in evidence.” Hall v. gave admonition, as his for his reason 870. The impropriety of such comment on the its time told at the it was ad failure to but that counsel was request mitted. Defendant made for arguing upon matters not in evidence. respect further instruction to it. On behalf it is said: urged judgment next (1) that the remarks cannot have been in any event be reversed new trial prejudicial to defendant view ordered by govern- because of a violation him; exceptionally strong against ment rule prohibiting counsel of the com- (2) prejudice any possibility ment the defendant’s failure to testi- *6 given by by cured an instruction fy. States, 60, 149 Wilson v. United U.S. on the effect to of defendant’s failure testi- U.S.C.A, 650; 765, 13 S.Ct. 18 fy, objection (3) that the cannot be

3481.5 considered because not raised at the time In jury, government of the trial. stated, counsel “I significant think it that the defendant go did not on stand the points Considering or- these inverse and the defendant has no im- witness to der, court, appears this and oth- peach the stories of Miss and Mr. ers, have said that an accused waives his Bryant”. by This went unobserved both right appeal assert on to such error counsel and defendant’s the 'court. Later object improp- by failure at the time the to the assistant attorney United States said: er remarks are made. York v. United again “Once I your want to direct atten- 656; States, Cir., 241 F. Nobile 9 United tion to the fact that the defendant was not Cir., 253; States, 3 Rice v. United on the stand. It seems to me that the least 689; 35 States, F.2d Milton v. get could do would be to the stand States, 394, App.D.C. United F.2d testify occupation as to his at time 556.6 18, "Competency 5. Tit. of accused. &3481: S., it.” v. U. reference to Wilson persons charged In trial of all with the 765, 766, 37 L.Ed. U.S. 13 S.Ct. against commission of offenses the Unit- proceedings ed States and in all in courts inquiry any authority martial and courts of these cases is some The State, by District, Territory, dimmed fact Possession or what the Johnson person charged shall, 189, the at his own re- v. United competent quest, 555, 704, holding 549, be a after witness. His L.Ed. objection request expressly failure to make such shall a similar been any presumption by against counsel, create the court was him.” waived careful prevent presumption being dealing “we are not “To such to note that here created, especially comment, oversight.” or with inadvertence The hostile com- ment, upon failure, necessarily a such must court “In such situation the said: rule jury. by from the be excluded The minds stated Mr. Sutherland Unit Justice jurors only Manton, F.2d can remain States v. the unaffected ed by excluding applicable: from this ‘If the failure to circumstance all enter an

Bá be held defendant may

Whether it should rely choose to on the state point by of counsel the upon failure, for accused waived the the any, upon failure object,7 right to the government prove every or whether to important com essential defendant is so that such charge against element error”, “grave ment him. should be as a And treated no lack of de- part failure a mere inadvertent fendant’s supply waived will a failure of object, subject appeal proof by government notice on support so as to “plain depends as a against error”8 itself finding him on es- case, gravity particular sential in the error element of the offense.” —upon flagrantly rights of the ac how Unlike the instruction which was disregarded. cused Because of have been held to have properly requested been attending our view of the circumstances Bruno v. making particular comments here neglected this one involved, presently men which we shall state, words, in many that the failure tion, why we should we see no reason of the defendant to take the stand does not plain which counsel treat as error create any presumption against him, or sufficiently to themselves did not notice that it should not enter into the discussions the time. call to the court’s attention or jury. deliberations of general admonished import Had the trial court either given the instruction was that of coun- jury the remarks testify sup defendant’s failure to cannot sel,9 given general or instruction the ply anything lacking government’s in the weight give effect that case. There remains possibility testify,10 the defendant’s failure to error jury, instruction, in obedience to the in- cured. The court did might have been require would to furnish “The defend- struct follows: proof every fact, essential and still con himself a witness. ant has not offered sider that the failure of testify defendant to whether or not deciding weight proof.11 added to such exception assign right” error had been a mere protected by “fundamental might inadvertence the matter stand in Fourteenth Amendment. Adamson v. *7 light. cannot California, 46, a different But that view 1672, 332 U.S. 67 S.Ct. 91 indulged. Plainly enough, 1903, counsel con- L.Ed. 171 A.L.R. 1223. The Su- sciously intentionally preme failed to save carefully Court has refrained judge point holding and led the trial to under- proMbition against the from the ” necessary was satisfied.’ compul- stand counsel a such comments is sion of the Fifth Amendment. See applied commonly 7. rule in cases of California, supra, Adamson v. 332 U.S. alleged prejudicial argument, not involv- 46, page 50, 1672; Twining 67 S.Ct. v. ing failure to comment defendant’s Jersey, 78, 114, New 29 S.Ct. States, testify, United is stated Cain v. 14, 53 97. L.Ed. Cir., 8 F.2d follows: 19 objection it, “Xo was made and the tri- States, Cir., 9. As in Brooks v. United 9 given al not a chance to was cure court 593; States, F.2d Robilio v. United might otherwise, by rebuke which it Cir., 975, certiorari denied 263 U. hurtful, done, it was and if well have if 716, 522, S. requested. Any such action had been act Morgan States, v. United F. may by preserved itself of the court 2d 385. Cf. Wilson exception, but inimical of ad- mere acts supra. counsel, witnesses, verse others Carlo, Cir., to the attention As in must United States v. Di be called objection by (grave errors, trial an 64 F.2d Milton court v. United may App.D.C. 394, excepted, this course court F.2d 556. sponte), by followed an ex- sua notice 11. The record shows took ruling court, ception of the to the Jury this instruction from “California by adequate ruling Ms to afford fail cor- Criminal”, (West Instructions ing Publish- objection of the matter to which rection 1946) compilation Co. of instruc- made.” is tions use the California courts. It prosecutor right exp'ected to have the 8. Tiie would therefore be to be so right frain such a comment is framed as from not to be consistent with the point by proper States, Cir., Had v. United cer defendant saved 115 F.2d -objection, given would tiorari instructions denied 312 have when 85 again, cured But error. given objec opportunity to make their When the later reference was made charge given, tions before defendant’s court failure to jury retired, stated counsel for defendant stopped counsel, jury instructed the none.12 disregard the remarks. As we now read We pros- believe that the remarks record we can note that the reason ecutor; jury considered as the which the court then stated for admoni- have viewed and understood them in the tion argument unsupport- was that the light time, transpired by what at the were ed looking evidence in the record. But prejudicial. past We have come to this con- record, cold considering this clusion, urged by not for the reason appeared matter as it must have to the government, jury, but for reason that we do we believe that the net effect not think that the remarks of undoubtedly simple counsel them was a understand- likely made in manner as would be ing such they were to what the jury improper lead the prosecutor to draw inferences. saying. To jury the minds the effect must “I The statement first made was: have been the same giv- as if the court had significant think that the defendant en a correct ruling, namely, reason for its go did not on the and the stand defendant that the of the remarks counsel were im- impeach has witness to the stories of proper. The silence of counsel for defend- Bryant”. Miss and Mr. The com Jones which object ant and their failure suggest ment prohibited is one which is impression. had the same suggest likely -to that the should draw adverse inferences the accused’s fail We think that to treat what was said testify. ure to The substance re here as such a violation of the rule con- mark here made of cerning comment on defendant’s failure to Bryant Miss Mr. was not con testify seriously as to be prejudicial to de- prosecutor tradicted. It is true that the fendant would be wholly We unrealistic.13 prefaced referring to fact that think that under such circumstances stand, go defendant did not on the respect be, was, error in this could a fact which the jury of course knew. waived the failure of defendant’s coun- statement, But we do not think object. sel to entirety, considered its would increase Appellant’s assignment last of er the liklihood that the would ad draw ror has little merit. In his verse inferences from defendant’s failure jury, said, prosecutor *8 per “If he And, testify. except special is in those go eventually mitted to free he is going to appears where it cases the accused brought again into a pos courtroom only possibly himself one who is could sibly possible is charged with government’s testimony, contradict the Lin —it —and Thereupon same offense.” S., Cir., judge trial 104, 296 prose den v. 3 F. U. interposed: “I do not think counsel can may properly cutor call attention to the speculate toas the future conduct of fact that the defendant. The has to determine witnesses has not been contradicted. Baker prosecutor is essential to a never valid trial to comment on de * * * right there. Too much is said fendant’s failure done about too little in the heat and Adamson hur in California. Cali he has v. ry trial, important. fornia, 46, for it 1672, all to 332 U.S. 1903, Things transpir of no moment in their A.D.R. 1223. 171 ing merely by are not made momentous 30, Federal Rules 12. See Rule of Criminal making Maryland record of them.” Cas Procedure, U.S.C.A. Reid, ualty 30, Co. v. 76 F.2d at inerrancy hardly possible page 13. “Abstract is 33. court; aof in a federal in the trial case whether in this in- guilty as INS. MFRS. MUT. MIMS v. CENTRAL past urged dictment for his conduct.” et CO. al. judge’s expressly that the failure to tell No. 12784. the jury speculative re- those Appeals United States Court prejudicial marks constituted error. We Fifth Circuit disagree. positive statement 2, Dec. 1949. past only was conduct consider his Rehearing 9, Denied Jan. jury as in- helpful as at least speculate forming they should not them possible conduct.

to the accused’s future record, the

Since we find no error in the

judgment is affirmed.

Upon Rehearing Petition for

PER CURIAM. urged

Upon petition for rehearing to Oriolo v.

that our decision counter runs S.Ct. opin- There, by memorandum

L.Ed. 1393.

ion, States reversed United Court

Oriolo, author- Cir., 146 F.2d

ity of Mortensen v. United by Judge pointed dissenting

As out Biggs, opinion Appeals,

from the of the Court of outing day’s simply there parties took a City, Jersey,

at New all the time Atlantic prostitution at Phil-

intending to resume the

adelphia. thought Judge Biggs It his car

that the fact defendant lost City, and that left New

Atlantic

Jersey trip by return train he woman that she must earn

marked to the

money so he could recover car change a sufficient

did not demonstrate distinguish from the case thought

Mortensen He the difference case. money to earn between transporta- recover his car and

defendant to money him, too trivial

tion to earn Supreme significant. Evidently

to be *9 agreed.

Court previously we have said

What

spect to the whole sufficiently

Mexico and return discloses proceed theory

our decision did purpose. change For that reason case, think in the su-

we decision Oriolo

pra, inapplicable here. rehearing petition for is denied.