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United States v. Lomas

March 24, 1971

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JOHN MELVIN LOMAS, DEFENDANT-APPELLANT



Knoch, Senior Circuit Judge, and Cummings and Kerner, Circuit Judges.

Author: Knoch

KNOCH, Senior Circuit Judge.

Defendant-appellant, John Melvin Lomas, appeals his conviction in a jury trial on a charge of interstate transport of a woman for immoral purposes in violation of Title 18 U.S.C. ยง 2421. He was sentenced to serve five years.

Defendant presents five issues for review:

"(1) Whether the Court erred in failing to declare a mistrial upon motion duly made, after a government witness testified to a conversation with defendant-appellant wherein said defendant-appellant allegedly had told of his commission of a crime in the past similar in nature to that for which he was being tried.

"(2) Whether the Court cured the error recited in paragraph 1 above, by an instruction to the jury.

"(3) Whether the defendant-appellant was given a fair trial in the face of the introduction of irrelevant and highly prejudicial evidence.

"(4) Whether the defendant-appellant was given a fair trial despite the fact that the trial court asked the principal government witness a leading question, the tendency of which was to assume the guilt of the defendant-appellant.

"(5) Whether the Court erred when it instructed the jury that prostitution need not be the only purpose of interstate transportation of a woman or a girl, or that it was one of the dominant purposes of such interstate travel, in order to prove an immoral purpose."

The defendant was charged with unlawful interstate transport of Donna Rae Hawley from Davenport, Iowa to Rock Island, Illinois. Miss Hawley testified that after conversation with defendant in Kansas City, Kansas, with regard to her engaging in prostitution in Rock Island, Illinois, arrangements were made to travel to Davenport, Iowa by bus.

Prior to allowing Miss Hawley to answer a question concerning payment for bus fare, the Court instructed the jury that the testimony was admitted solely for the purpose of background and knowledge, to show the purpose of the trip. She then testified that she was to pay her own bus fare, defendant having told her he had been in some trouble about taking a girl across a state line.

The Court denied defendant's motion for mistrial but ordered the reference to prior trouble stricken and instructed the jury to disregard it.

Defendant argues that it was impossible for the jury to disregard having in effect been told that defendant had committed a prior offense similar to that with which he was now charged and being tried, even though there was no reference to the nature of the "trouble" or whether it involved an arrest, let alone a conviction.

Defendant relies on Helton v. United States, 5 Cir. 1955, 221 F.2d 338, which reversed and remanded a conviction on a charge of illegal acquisition and production of marijuana, where, in the course of the trial, testimony was received of defendant's admission to smoking marijuana intermittently during the previous four or five years. The Trial Judge ordered this testimony stricken, but the jury was not instructed to disregard the improper testimony. The Fifth Circuit doubted whether such admonition would in any event have been efficacious because the defense was that the marijuana ...


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