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United States v. Hon

July 2, 1962


Author: Schnackenberg

Before DUFFY, SCHNACKENBERG and SWYGERT, Circuit Judges.


Edward Lee Hon, defendant, has appealed from a judgment of the district court, sentencing him to imprisonment for not more than 5 years, and providing that he be confined for a period of six months and that the remainder of the sentence be suspended and the defendant during the latter period placed on probation. The judgment was based upon a finding by the court that defendant was guilty, as charged in an amended information, of violating the White Slave Traffic Act, 18 U.S.C.A. ยง 2421 (the Mann Act), in knowinly transporting in interstate commerce from Reno, Nevada, to a point in Allen County, Indiana, Irene Silina Britton, herein referred to as Irene, for the purpose of prostitution and debauchery and for other immoral purposes, and with the intent and purpose to induce, entice and compel her to give herself up to debauchery and to become a prostitute. Defendant pleaded not guilty and, being a pauper, was represented by court-appointed counsel, who also appears in this court.

The evidentiary facts are not in dispute, having been established principally by the testimony of Irene, a witness for the government.

Irene hitchhiked from her home in Laurel, Maryland, to Reno, Nevada, and began practicing prostitution. There she met defendant and they proceeded to reside together in the home of Mr. and Mrs. Norman Rice, for two or three weeks, during which time Irene continued in her prostitution activity. Their only income was that which Irene thus earned.

They left Reno together on a strange odyssey to her home in Maryland, where her child was in her parents' household. They rode in defendant's old automobile to Flagstaff, Arizona, where they resided about three weeks in a hotel and Irene continued her professional activities.

Neither in Reno nor Flagstaff were any of her engagements obtained by defendant. It should be pointed out, however, that there is no evidence that he was afflicted with the habit of working for a living.

After three weeks at Flagstaff, they proceeded to Chicago, where they resided in a hotel for almost one month. During this period Irene worked as a restaurant waitress for about two weeks and defendant earned $7 for about one day's work. After they had saved about $40 or $50, they decided they had enough money for the next leg of the journey, which would bring them to her sister's home in Coshocton, Ohio, where they planned to reside for a short period, before going on to Maryland.*fn1 However, if the Coshocton relatives were expecting them, they were doomed to disappointment because of automobile troubles which beset Irene and defendant as they drove across the state of Indiana. He bought a rebuilt voltage regulator and battery cable at a junk yard and installed them. The trip eastward was resumed and they had dinner at Fortmeyer's, a truck stop near Fort Wayne. Then they found that the automobile would not start. Their funds had become depleted so that they had less than $6. They had the car towed a half mile down the road to a junk yard while they were in the car. After some delay defendant found that a new battery was required. The need for money was apparent. Irene, who had an unusual ability to improvise as occasion required, started to walk back to Fortmeyer's where she could earn some money, and a truck driver picked her up. Upon arriving at Fortmeyer's she performed one act of prosstitution and received $5. Defendant was then asleep in the car a half mile away. He had not urged her to go to Fortmeyer's to obtain the money; he said it was up to her.

Irene was arrested in Fortmeyer's by an Indiana state policeman and an agent of the FBI, while defendant was apprehended near his car at the junk yard.

1. At the outset, we must consider the government's contention that, in the absence of manifest error, the question of sufficiency of evidence to sustain a conviction cannot be reviewed on appeal where no motion for judgment of acquittal was interposed at the close of all the evidence.

The government in support of this contention cites a number of cases involving judgments based upon verdicts of juries. Corbin v. United States, 253 F.2d 646, 10 Cir.; Picciurro v. United States, 250 F.2d 585, 8 Cir.; Johns v. United States, 227 F.2d 374, 10 Cir.; Armstrong v. United States, 65 F.2d 853, 10 Cir. It also cites 18 U.S.C.A. rule 29, which is directed to jury trials.

The case at bar was tried by the court, without a jury, and the government's contention is not applicable to such a situation. Although not cited by the briefs in this case, we find that this precise question has been decided in Hall v. United States, 286 F.2d 676, 5 Cir. (1960), cert. denied 366 U.S. 910, 81 S. Ct. 1087, 6 L. Ed. 2d 236. In that case, the court said, at 677 of 286 F.2d:

"Further, Rule 29(a) is now so worded as to require the court 'of its own motion' to order the entry of a judgment of acquittal if the evidence is insufficient to sustain a conviction.

"In any event, there can be little or no need for a formal motion for a judgment of acquittal in a criminal case tried to a court without a jury upon the defendant's plea of not guilty. The plea of not guilty asks the court for a judgment of acquittal, and a motion to the same end is not necessary. De Luna v. United States, 5 Cir., 1955, 228 F.2d 114, 116. In such a case, therefore, we hold that the sufficiency of the evidence to ...

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