Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois; Walter C. Lindley, Judge.
Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.
The attack on the indictment and part of appellants' assault on the sufficiency of the facts to support the conviction may be treated together. Their position may be stated thus: A and B are not guilty of a conspiracy to violate section 398, title 18, USCA, upon a showing that A, a married man, pursuant to agreement between them, caused B, a woman, to be transported from state C to state D that the said A and B might have sexual relations in state D.
This contention we dispose of without discussion on authority of United States v. Holte, 236 U.S. 140, 35 S. Ct. 271, 59 L. Ed. 504, L.R.A. 1915D, 281. Counsel for appellants have advanced arguments not considered in the opinion in said case, but we are not prepared to reject the authority for such reason. In fact, we are unable to say that the arguments which appellants make in this case were not advanced in the Holte Case, although they were not considered in the opinion. See, also, Corbett v. United States (C.C.A.) 299 F. 27; O'Leary and Sullivan v. United States (C.C.A.) 53 F.2d 956.
Sufficiency of the Evidence. Aside from certain statements made after the three trips were completed (the subject of another assignment of error, and therefore now excluded in considering the evidence), it is argued by appellants that the only proof tending to establish the conspiracies was to be found in the evidence which established the substantive crime; that is, the violation of the so-called Mann Act. In short, it is argued that, even though A, a married man, be guilty of transporting B, a woman, from one state to another for immoral purposes, such evidence is insufficient to establish the crime of conspiring to commit said substantive crime by the said two parties. This court has on several occasions held that proof of the substantive offense alone is not sufficient to establish the crime of conspiracy to commit such offense. Biemer v. United States (C.C.A.) 54 F.2d 1045; Allen v. United States (C.C.A.) 4 F.2d 688.
Whether the rule to the effect that proof establishing the substantive offense is in and of itself insufficient to establish the conspiracy to commit the offense is technically and in all instances correct, we need not decide. Certainly instances may be readily suggested where it would be well-nigh impossible for the Government to establish the substantive offense whthout furnishing proof of a conspiracy to commit the offense. Likewise, many cases may be readily conceived where the proof of the substantive offense would not suggest, to say nothing of establish, the crime of conspiracy. In this case, there was evidence which, together with the proof of commission of the substantive offense, not only supports the charge of conspiracy, but persuasively establishes its existence. When, as in the instant case, it is shown that A, a married man, purchased for himself and B, a woman, tickets on railroad trains, which were used to transport, and did transport, both A and B from one state to another, and it further appeared that their trip was for immoral purposes, and that, while on their trip, they lived as husband and wife, and it further appeared that the two parties met at a depot in the city of Chicago to take the special through train upon which A had secured passage for both of them, credulity would be strained beyond the cracking point to accept as true the suggestion that said parties met, thus prepared to make the trip, accidentally rather than premeditatedly.
In the instant case, it further appeared that, before starting on their trips, Gebardi secured and paid for a room in a hotel in Chicago which Rolfe occupied; that, before starting on the trips, Gebardi purchased the tickets which provided for the passage, together with sleeping car service on trains leaving at a certain hour from a certain station; that on the date and at the time and at the place desiguated in the city of Chicago both parties appeared. Unexplained and unchallenged by either appellant, this statement of facts justifies, if it does not necessitate, a finding of prearrangement; that is, a planning, a confederacy -- a conspiracy, as charged in the indictment.
It is further argued, however, that, if any conspiracy were shown, it was a single one and not three separate ones. Again the record is barren of proof on the part of either appellant which disputes, explains, or qualifies the inferences which arose from the undisputed facts established by the Government. This evidence, produced by the prosecution, consisted of railroad tickets, Pullman tickets, the testimony of hotel-keepers, railway and Pullman employees, and certain notes which passed between appellants. The court was amply justified in finding, we think, that, when the parties left Chicago for Miami on the 18th of December, they did not contemplate a trip on January 25th from Chicago to Jacksonville, Fla. This second trip was separate and distinct from the first one and was undertaken pursuant to plans perfected by appellants after the first plan had been carried out in whole or in part. Nor is there any evidence from which the court might have found that the conspiracy included, not only the said trips on the two different dates from Chicago to Miami and from Chicago to Jacksonville, a month apart, but that said appellants should go from Gulfport to Chicago. The trips were entirely separate; the actions of Gebardi in securing the transportation in each instance were separate and disassociated one from the other; and we see no escape from the finding that the three trips were separate and the conspiracies preceding them were separate and distinct, one from the other.
It is needless to further observe that this court's review of the record was for the limited purpose of ascertaining whether any evidence appeared to support the trial court's finding (a jury having been waived), not to make a finding of fact.
Rulings on Admission of Evidence. Over objection, statements made by each appellant to police officers on February 27, 1929, were received in evidence. Appellants argue that the statements were prejudicial and not receivable against both appellants, because the conspiracy, if any existed, was at an end before they were made. Appellant Rolfe's statement was made February 27 at the office of Commissioner Stege of the detective bureau. Gebardi was not present. Gebardi's statement was made on the same day in a room in the Stevens Hotel where the two appellants were living as husband and wife at the time. From the statement of Gebardi, it was inferable that appellant Rolfe was present at the time it was made.
Nothing appeared in either statement which was not conclusively established by other testimony. No evidence was given by either appellant on the trial, and the Government's case thus uncontradictedly established the trips, established the immoral cohabitation under assumed names, as husband and wife, and this was what both of the statements objected to, disclosed.The statement of each appellant thus voluntarily made, even thought to a police officer investigating a state crime, was admissible against the party making it, regardless of whether the conspiracy had terminated. Likewise, the statement made by Gebardi in the presence of Rolfe was admissible against both of them. Rolfe's own statement, admissible against her, was but a restatement of what Gebardi said in the presence of the officer with Rolfe present.
Moreover, it does not appear so conclusively as to bar these statements that the last conspiracy had ended when the statements were made.One count of the indictment charged a conspiracy to violate the Mann Act by Gebardi's transporting Rolfe on January 25 from Gulfport, Miss., to Chicago for immoral purposes. When was this conspiracy at an end? When was the substantive crime completed? Appellants contend that Chicago was their home, and the substantive crime, as well as the conspiracy (conceding both to be established), was ended upon their arrival in Chicago. Proof does not support this argument. The evidence does not show Gebardi's residence any more definitely than it does his real name. Statements made by both parties to the hotel clerk and postmen in the South left his residence and his name involved in doubt. But, if it be admitted that Chicago was his residence, it does not follow that the S Hotel in Chicago where he lived with Rolfe, as man and wife, was his home, in view of other evidence that he had a wife and child living somewhere else in Chicago.
The foregoing observations respecting the statements made by appellants apply to the evidence of the police officers and witnesses who were present at the time the statements were made or immediately preceding their making. The same principle applies to the testimony of the Miami policeman. This testimony bore upon the immoral purpose for which Rolfe was transported and was necessary to establish the relation between the conspiracy and the substantive offense. Likewise, the exhibit objected to -- namely, a postcard of the Illinois Central Railway with a love note thereon addressed to Mr. D'Oro -- was receivable for the same purpose, in view of the other proof that appellants registered in hotels in the South as Mr. and Mrs. Vincent D'Oro. The testimony was not ...