JERTBERG, Circuit Judge:
A seven count indictment charged appellant in five counts of violating 18 U.S.C. § 2421 [Mann Act], in one count of violating 18 U.S.C. § 2422 [Mann Act], and in the last count charged appellant and one Barry Kornhaber of violating 18 U.S.C. § 1503 [obstruction of justice].
Trial to a jury resulted in a mistrial because the jury was unable to reach a verdict. In the course of that trial one of the counts (Count Five), charging a violation of § 2421, was dismissed.
On retrial to a jury, appellant was convicted on four counts charging violation of § 2421, one count charging violation of § 2422, and on the count charging violation of § 1503. Kornhaber was acquitted by the jury on the obstruction of justice count.
Appellant was committed to the custody of the Attorney General for a term of four years on each of three counts charging a violation of § 2421, all sentences to be served concurrently, and to three years on each of the three counts, one charging a violation of § 2421, one charging a violation of § 2422, and one charging a violation of § 1503, the sentences to be served concurrently, but consecutively to the sentences imposed on the three counts first mentioned.
Appellant appeals from the judgment of conviction entered against him. This court has jurisdiction under 28 U.S.C. §§ 1291 and 1294(1).
The § 2421 violations occurred during the period commencing on or about May 15, 1964, and ending on or about June 7, 1964, and involved two trips from Los Angeles County, California, to Las Vegas, Nevada, and two trips from Las Vegas to Los Angeles. By its verdict, the jury found, in each
The § 2422 violation occurred on or about June 12, 1964. By its verdict the jury found that appellant knowingly persuaded and coerced the said Loretta Hoskins to go into interstate commerce to Las Vegas, from Los Angeles, for prostitution, debauchery, and other immoral purposes and with the intent that Loretta Hoskins engage in the practice of prostitution, and thereby knowingly caused her to go and to be carried and transported as a passenger upon the line and route of a common carrier in interstate commerce.
The § 1503 violation occurred on or about August 5, 1964. By its verdict the jury found that appellant corruptly endeavored to influence, obstruct and impede the due administration of justice by corruptly endeavoring to impede and influence Loretta Hoskins, who had been and was to be a witness before the Federal Grand Jury, in connection with testimony that she had given and was to give before the Federal Grand Jury in its investigation and inquiry into possible violations of the Mann Act.
The testimony on the Mann Act charges was supplied, in the main, by Loretta Hoskins. Corroboration of parts of her testimony was supplied by landlords, motel operators, and telephone operators, who testified to seeing Loretta Hoskins and the appellant, or either one of them, and/or renting to them, or one of them, accommodations at particular times and places.
The testimony of Loretta Hoskins followed the usual pattern of testimony of a prosecutrix in this type of case. She testified that she was reluctantly coerced and induced by the appellant to enter into prostitution by promises and blandishments of appellant; that she turned over her earnings of prostitution to appellant, who transported or sent her back and forth between Los Angeles and Las Vegas, to engage in prostitution; that she was beaten by appellant; that she was dispossessed of her furniture by appellant; that she was instructed in the art or business of prostitution and recruiting customers by appellant and another prostitute named Beverly Caputo (sometimes known as Renee Dubeau), who was also in the service of appellant; and that she remained in the service of appellant through coercion, fear and threats of appellant.
She further testified that on June 13, 1964, she voluntarily went to the police station in Las Vegas, and later to the sheriff's office, and told the law enforcement officers the complete story of her activities in prostitution and her associations with appellant.
Appellant's defense, basically, was that while he knew of the trips to Las Vegas, and had gone there himself, and knew that Mrs. Hoskins and Miss Caputo had engaged in prostitution activities, that that activity and the trips back and forth were not under his control, and that he made trips to Las Vegas to secure arrangements for employment as an entertainer, from which, and as a magazine representative, he made his living; that Loretta Hoskins' charges were false and were motivated by jilted-lover revenge.
The events relating to the § 1503 charge may be briefly stated. Loretta Hoskins testified that on August 5, 1964, she visited a night club, where she had been previously employed, to see the owner-manager, Barry Kornhaber, and to pick up a typewriter she had left there. At a later meeting, Kornhaber told Loretta Hoskins that he had talked earlier to appellant, who told him about the events that occurred in Las Vegas; that appellant asked Kornhaber to tell her that he wanted to talk to her, and that he would give her cash, a trip to Hawaii, and would return her furniture if she would not testify against him. Later appellant and Loretta Hoskins met and appellant repeated his offer; that she mentioned that she had testified before the Grand Jury, and had talked to the FBI; that appellant pleaded with her and threatened to notify her family of her activities.
The defense of appellant and Kornhaber to the § 1503 charge was that they had not coerced Loretta Hoskins in any way; that she had written the retraction note voluntarily. Both denied any knowledge at the time the note was written that any federal charges might be brought against appellant, and they both believed that Loretta Hoskins' charges related only to possible State charges of pimping and pandering.
Appellant sets forth numerous specifications of error. He does not contend that the evidence is insufficient to support the jury verdict. He does contend, however, that the conviction should be set aside because of the "inherent incredibility" of Loretta Hoskins' testimony.
Our review of the record, in the light most favorable to support the verdict, satisfies us that the verdict is supported by ample evidence. We are unable to agree with appellant that the testimony of Loretta Hoskins is inherently incredible. In light of our view that the jury verdict is fully supported by the evidence, we see no purpose in setting forth all of the evidence in detail, but will only set forth such portions thereof as we deem necessary to properly review those specifications which appear to us to be well taken.
The record reveals that Beverly Caputo, above mentioned, was called as a witness by the Government, and testified in the first trial which resulted in a mistrial. Between the date of the mistrial and the commencement of the trial under review, appellant and Beverly Caputo were lawfully married. She was in attendance throughout the Government's case in the second trial, under subpoena issued by the Government.
Immediately prior to the commencement of the trial, a conference was held in the chambers of the district judge at which were present the district judge, appellant, co-defendant Kornhaber, their counsel, and counsel for the Government. During the conference the district judge stated that "somebody alerted me to a marriage problem. Let's find out about that." A colloquy between court and counsel ensued, relating to the "marriage problem," during which counsel for appellant stated that appellant and Beverly Caputo were married some time prior to the commencement of the second trial, and furnished to Government counsel the marriage certificate.
Further discussion on whether Beverly Caputo was compellable as a witness for the Government followed. At this conference the district court gave no indication of what his ruling might be, in the event the problem should arise during the course of the trial. At the conference, Government counsel stated that at the first trial the Government:
On the following day, and after the commencement of the trial, a further conference was had in chambers, out of the presence of the jury, at which were present the district judge, appellant and his co-defendant, Kornhaber, their counsel, and counsel for the Government. The district judge stated:
After further discussion on other matters, counsel for appellant stated:
Thereupon the court inquired of Government counsel as to his views. Government counsel stated:
Whereupon the court stated:
On the following day, in chambers, outside the presence of the jury, the following colloquy occurred between the district court and counsel for the Government:
Beverly Caputo was not called as a witness, either on behalf of the Government or the appellant.
As indicated, the district court ruled that the exercise of the privilege by either spouse, not to have appellant's wife testify against him, would have to be exercised after the wife was sworn as a witness in open court, and before the jury. In our view the district court erred in such ruling.
We believe that such privilege was exercised by the timely request made by appellant's counsel that such proceedings take place in chambers, and outside the presence of the jury. Cf. Tallo v. United States, 344 F.2d 467 (1st Cir. 1965); San Fratello v. United States, 340 F.2d 540 (5th Cir. 1965); and concurring opinion of Judge Hamley in Bisno v. United States, 299 F.2d 711 (9th Cir. 1961).
The Government relies upon the majority opinion in Bisno v. United States, supra, to support the ruling of the district court. In our view such reliance is misplaced.
In Bisno, the question of the spousal privilege did not arise until during the closing argument of the Government. In that case two of the ten specific items of property allegedly concealed from a trustee in bankruptcy by Bisno, a bankrupt, were a note of the Exeter Hotel in the sum of $2,000.00 dated December 20, 1955, payable to Sally Bisno, wife of the bankrupt, and a cashier's check in the sum of $2500.00 dated December 29, 1955, drawn on the Bank of America, payable to "Al Bisno or Sally Bisno." Referring to these items in his closing argument to the jury, counsel for the Government said:
In an effort to offset this remark, counsel for appellant then proposed the following jury instruction:
The trial court refused to give this instruction and on appeal Bisno argued that this was error. On the appeal the majority opinion of this court expressed the view that the district court did not err in this regard. In the majority opinion it is stated:
The situation in Bisno is to be contrasted with the situation in the instant case in which appellant endeavored to have his wife sworn and the privilege
Since we hold that the privilege was exercised by the timely request made by appellant's counsel that the proceedings take place in chambers, and outside the presence of the jury, it follows that Government counsel committed plain error in commenting on the failure of appellant to call his wife as a witness, and in arguing that if called, her testimony would have been adverse to the appellant's case.
In the course of his opening and closing arguments to the jury, counsel for the Government, among other things, stated to the jury:
The Mann Act charges set forth in the indictment cover the period from on or about May 14, 1964, to on or about June 12, 1964. Mrs. Hoskins made her complaint to the law enforcement officers at Las Vegas, Nevada, on June 13, 1964. Appellant was arrested on the same day or the following day.
Over the objections of appellant, a prosecution witness, an undercover police officer of the Los Angeles Police Department, testified that on July 7, 1964, almost a month after appellant's arrest and after the occurrence of the events charged in the Mann Act counts, he went to the apartment residence of appellant, who was not on the premises, and was greeted at the door by Beverly Caputo who was clad only in the bottom portion of a brief bikini; that he was ushered into the living room and then into a bedroom where he paid her $100.00 for prostitution services; that he then followed her into another bedroom where she placed the money in a box in a bureau drawer; and that both of them returned to the front bedroom where she removed the short bikini, at which time she was placed under arrest on a State charge of practicing prostitution.
We believe that the district court erred in admitting such testimony. Its relevance, if any, to the Mann Act charges against appellant, was slight when compared to its prejudicial character, and such testimony should not have been admitted.
In the early stages of the cross-examination of appellant, Government counsel asked appellant the following question:
Appellant's prompt objection to the question was sustained and the question was not answered.
On rebuttal, the Government offered the testimony of Kathy Lomonte. Her testimony related to events which occurred not earlier than February 1965, more than seven months after appellant's arrest. According to Government counsel the purported purpose of her testimony was to impeach certain testimony given by appellant. In the course of that examination, the following occurred:
Immediately thereafter, defense counsel approached the bench and, out of the hearing of the jury, moved for a mistrial based upon the improper prejudicial character of the witness's testimony. The motion was denied. Counsel for defendant renewed his motion following the redirect examination of the witness. The motion was again denied.
During argument in chambers, Government counsel contended that the questions directed to Miss Lomonte were proper as impeachment of appellant's testimony that he had not married Beverly Caputo to keep her from testifying against him. As indicated above, appellant gave no such testimony because objection was sustained to the question directed to him. The question was never answered, a fact which Government counsel, for some reason, claimed he failed to remember. Government counsel conceded he knew what answers would be forthcoming from Miss Lomonte to his questions.
In our view the questions were deliberately asked and the answers fully expected, the effect of which was to destroy the spousal privilege and was prejudicial to the appellant.
On the following day appellant's counsel renewed his motion for mistrial. At such time, some twenty hours after Miss
We believe that the prejudicial character of Miss Lomonte's testimony, concerning the reason for the marriage, was not cured by the court's belated admonition. See Mora v. United States, 190 F.2d 749 (5th Cir. 1951); Cf. United States v. Stromberg, 268 F.2d 256 (2d Cir. 1959), cert. den. 361 U.S. 863, 80 S.Ct. 123, 4 L.Ed.2d 102 (1959); United States v. Maloney, 262 F.2d 535 (2d Cir. 1959), and Tallo v. United States, supra.
It is to be borne in mind that appellant's counsel offered to explore the validity and bona fides of the marriage, in chambers, outside the presence of the jury. Government counsel vigorously opposed such request and never questioned the validity of the marriage until the improper question which was directed to the appellant on cross-examination. Notwithstanding that the objection to such question was sustained, Government counsel persisted by his improper questions concerning the marriage, directed to Miss Lomonte.
The record is crystal clear that Government counsel never intended to call Beverly Caputo as a Government witness because of her hostility as a Government witness on the first trial. Notwithstanding this, we are satisfied that the only purpose that Government counsel had in mind in asking the questions of the two witnesses concerning the marriage was to leave the impression with the jury that if Beverly Caputo had been called as a witness, her testimony would have been favorable to the Government.
On direct examination appellant testified that he made his living as an entertainer and as a magazine representative. On cross-examination, Government counsel inquired as to the amount of appellant's income in 1964 and in 1963, and then asked appellant:
Appellant's counsel promptly objected. The court stated to the jury:
to which the appellant replied:
In our view the district court's attempt to avoid prejudice to appellant failed. The cross-examination by Government counsel was irrelevant, non-impeaching and prejudicial. Appellant's failure to file an income tax return does not impeach his testimony that he received income from non-sordid sources. The Government concedes that appellant did have income from such sources.
In our view the prejudicial character of the testimony was not cured by the district court's admonition. As stated in Thurman v. United States, 316 F.2d 205 (9th Cir. 1963):
We are unable to say that in this case the error in admitting such testimony did not influence the jury or that it had very slight effect.
Because of the errors set forth in this opinion, we conclude that the judgments of conviction based upon the Mann Act charges must be reversed. We deem it unnecessary to discuss other errors specified by appellant.
We now consider appellant's appeal from the judgment of conviction for violating 18 U.S.C. § 1503 [obstruction of justice].
Appellant's sole specification of error is that:
During the trial two FBI agents testified at some length, as Government witnesses, to extra-judicial statements made by the defendant, Kornhaber, outside of appellant's presence. One of these statements was signed by Kornhaber. No contention is made on this appeal that the statements were other than voluntary, and made after Kornhaber had been fully advised of all his constitutional rights. No objection of any kind was made by appellant to the introduction of this testimony, and no request was made, either immediately before or immediately after the testimony of the two FBI agents, that the district judge instruct the jury that such testimony was not admissible or to be considered as evidence as against appellant. In the course of his instructions to the jury, the court stated:
If the district court erred in failing to give such instruction immediately before or after the testimony of the two FBI agents, such error, in our view, is harmless. We have carefully examined the testimony given by the two FBI agents and the testimony of Kornhaber in his own behalf. No objection of any kind was made by appellant to the testimony of Kornhaber. Except in minor matters, his testimony was substantially the same as the testimony of the two FBI agents. Appellant made no request for any limiting instruction in respect to Kornhaber's testimony.
The judgment of conviction of appellant on Count VII of the indictment is affirmed. The judgments of conviction of appellant on Counts I, II, III, IV and VI are reversed.