Willie Frank Brown v. United States

Appellant was convicted of transporting Betty Joyce Lanuzza from Seattle, Washington, to Richmond, California, for the purpose of prostitution in violation of 18 U.S.C.A. § 2421 . He seeks reversal upon two grounds.

I

Appellant argues that because Miss Lanuzza furnished the automobile and the money, she and not he “transported” the couple between the points alleged. From the government’s evidence at the trial, the jury might have concluded that prior to the trip in question Miss Lanuzza became a prostitute on appellant’s instruction, that appellant directed Miss Lanuzza’s activities, obtained customers for her, and received and used the proceeds of her efforts as means of support, that appellant decided that the trip would be made to get away from a man who was “bothering” Miss Lanuzza and in *295 terfering with her activities as a prostitute by “hanging around,” that the trip was made with the understanding that during the journey and while in California Miss Lanuzza would continue to support appellant and herself by prostitution, and that she*did so. In short, there was evidence from which the jury could have found that appellant directed and controlled Miss Lanuzza and was…

(dissenting).

I dissent. I agree that the evidence is sufficient to support a finding that the woman was transported by the defendant, but I would not remand the matter for further proceedings relating to oral argument.

In Irving v. United States, 1931, 9 Cir., 53 F.2d 55, at 56 , we said “that prejudice is not inferred from mere error, and that the burden is always upon an appellant to show that he has suffered damage in his case.” To the same effect, Didia v. United States, 1939, 9 Cir., 106 F.2d 918, 920 . There is a presumption that the District Court tried the ease properly and that it protected the rights of the defendant, until the contrary is made to appear. This rule applies with particular force where it is claimed that there has been prejudicial misconduct in the argument of the prosecutor. D’Aquino v. United States, 1951, 9 Cir., 192 F.2d 338, 367 .

Here, error does appear, in that the arguments of counsel were not taken down by the court reporter, but there is not even an assertion that if the argument had been taken down and brought before this court it would disclose any misconduct on the part of the prosecutor, or any other error, much less prejudicial…

(concurring).

I concur fully in Judge BROWNING’S opinion.

When, as here, there has been a complete disregard of a positive statutory command to record closing arguments, I find myself in a predicament. I do not want to order a new trial merely for want of this recording, in the absence of some proof of prejudice. And still, I know that if, in fact, government counsel made the kind of argument dealt with in Ginsberg v. United States, 5 Cir., 257 F.2d 950, 955 , 70 A.L.R.2d 548 , or in Wagner v. United States, 5 Cir., 263 F.2d 877, 884 , I would seriously consider reversal for “plain error”, whether objection was or was not made at the time. Compare Viereck v. United States, 318 U.S. 236, 248 , 63 S.Ct. 561 , 87 L.Ed. 734 .

That any such thing happened is extremely unlikely, but it is not impossible, as the cases cited show. Perhaps the chances are only one in ten thousand, but since I believe that never, if we can possibly avoid it, should any man stand convicted where plain error occurs, I think we have taken here the only step that *297 will make certain that appellant is assured a fair trial.

314 F.2d 293 Willie Frank BROWN, Appellant, v. UNITED STATES of America, Appellee. No. 17782. United States Court of Appeals Ninth Circuit. Feb. 18, 1963. Gerald N. Hill, San Francisco, Cal., for appellant. Brockman Adams, U.S. Atty., Thomas H. S. Brucker, Asst. U.S. Atty., Seattle, Wash., for appellee. Before POPE, BROWNING and DUNIWAY, Circuit Judges. BROWNING, Circuit Judge. 1 Appellant was convicted of transporting Betty Joyce Lanuzza from Seattle, Washington, to Richmond, California, for the purpose of prostitution in violation of 18 U.S.C.A. 2421. He seeks reversal upon two grounds. 2 * Appellant argues that because Miss Lanuzza furnished the automobile and the money, she and not he 'transported' the couple between the points alleged. From the government's evidence at the trial, the jury might have concluded that prior to the trip in question Miss Lanuzza became a prostitute on appellant's instruction, that appellant directed Miss Lanuzza's activities, obtained customers for her, and received and used the proceeds of her efforts as means of support, that appellant decided that the trip would be made to get away from a man who was 'bothering' Miss Lanuzza and interfering with…