Appeal from the District Court of the United States for the Southern District of New York.
Before L. HAND, CLARK, and FRANK, Circuit Judges.
This is an appeal by William Mitchell from his conviction by a jury of the crime of transporting his own wife in interstate commerce for the purpose of prostitution and debauchery, in contravention of the White Slave Traffic Act of 1910, 18 U.S.C.A. § 398. The wife testified at length against him; and although there was some corroboration from others of certain details of her testimony, it is quite obvious that no conviction could be had without her evidence. The errors pressed on this appeal are that her testimony was not legally admissible against him, and that the court erroneously refused to allow him to dismiss his counsel during the trial.
The revolting details of the testimony given by the wife need not be stated here further than is necessary to set forth the legal question involved. She said that she met defendant during February, 1941, at a cafeteria in San Diego, California, where she was employed as a waitress, that she went out with him soon thereafter, and that on the third or fourth occasion she had intercourse with him.A short time thereafter he asked her to go out to work for him as a prostitute, since he needed the money, telling her of a certain hotel where he had made all the arrangements for her, and later actually bringing her to another place, where he again asked her to work as a prostitute. Each time she refused. He was arrested in April, 1941, for contributing to the delinquency of a minor, the charge being based on the fact that he had stayed in a hotel room with her overnight. As she would not testify against him, the charge was dismissed. He was, however, indicted for possession of marihuana, and was convicted. The night before his arrest he again urged her to go to work as a prostitute at the places previously suggested. While in jail he wrote her that he needed $100 for a lawyer and "You know what to do." Upon his release in June, 1941, he went to Albuquerque, New Mexico, since he had been directed by the court to leave the state when his sentence was served. In October, 1941, in response to a letter from defendant, she went to Albuquerque, where they were married. She then got together a total of $800 of her own money, which she gave to defendant; and they left for New York, arriving on October 21, 1941.
After two weeks in New York, defendant told her that she would have to go out to hustle for him, as he needed money. There follows a considerable record of various urgings and threats on his part, and refusals on hers, in the presence of assisting third persons or otherwise, as chance seemed to determine, with suggestions of specific places where she might operate, as a result of which she eventually capitulated and worked at several places, which she named, including, among others, two specific hotels. During the time that she worked as a prostitute, defendant took all the money she earned, amounting to some $2,000. He was arrested on February 9 and convicted on March 17, 1942.
In considering the admissibility of the wife's testimony, distinction must be made between a general privilege prohibiting testimony by one spouse against another and the special privilege as to confidential communications. The latter seems quite thoroughly recognized and approved in this country, 8 Wigmore on Evidence, 3d Ed. 1940, §§ 2332-2341,*fn1 whereas the former, while also widely recognized except where modified by statutes or limited by exceptions, has been strongly criticized as of obscure origin, uncertain rationalization, and unfortunate results in limiting judicial search for the truth. Wigmore, id. §§ 2227-2245, especially § 2228, quoting Jeremy Bentham's devastating blasts at the rule, and § 2245, expressing the hope that "before the centenary of Bentham's death, no vestige of the privilege will remain." It is omitted from the American Law Institute's Model Code of Evidence, although the privilege for confidential communications is retained. Rules 215, 216. See Ladd, A Modern Code of Evidence, 27 Iowa L. Rev. 214, reprinted in the Institute's Model Code, 329, 344; also Report of Committee on Improvements in the Law of Evidence, 1938, 63 A.B.A.Rep. 594, 595. In New York by statute a husband or wife is a competent witness against the other in a criminal cause, except that neither can be compelled to disclose a confidential communication made by one to the other during the marriage, N. Y. Penal Law § 2445, Consol. Laws, c. 40, and except that no conviction under N. Y. Penal Law § 1090 for the compulsory prostitution of a wife shall be had upon the testimony of the wife unsupported by other evidence.*fn2 Of course, the privilege of one spouse to testify for the other was established in the federal courts in the notable opinion of Justice Sutherland in Funk v. United States, 290 U.S. 371, 54 S. Ct. 212, 78 L. Ed. 369, 93 A.L.R. 1136.
In the present case, defendant through his counsel objected "to his wife testifying unless she is going to testify voluntarily." The court asked her if she was willing to testify, and she replied, "Yes." The examination then proceeded. Although there is some basis at least under statutes for the view that the privilege is that of the witness, Commonwealth v. Barker, 185 Mass. 324, 70 N.E. 203; Commonwealth v. Barronian, 235 Mass. 364, 126 N.E. 833, clearly the better view is that the privilege is that of either spouse who chooses to claim it. Wigmore, id. § 2241. Even if the objection was not adequate in scope here, we think we should notice the assigned error, in view of its importance in the case, and all the circumstances, including the objections made to counsel hereinafter discussed. Indeed, it seems desirable to point out that no injustice was done the accused, for we think the testimony clearly admissible under a long recognized exception to the general principle.
This is the famous exception for Necessity, in the case of injuries to the spouse, stated in 1631 in Lord Audley's Case, Hut. 115, 3 How.St.Tr. 401, where the husband had instigated rape against his wife. The exception itself is well settled; the only question at all doubtful is whether it can be properly applied to a violation of the White Slave Traffic Act. Here the argument is made that this is not a crime against the person of the wife, but a crime against interstate commerce. But, as Wigmore, id. § 2239, says generally of all cases of enticing to prostitution or white slave traffic involving the wife, "of course morally it is a shameless offense against wifehood"; and we agree, as do all the authorities, with a single exception, which deal with the specific question under this statute. Denning v. United States, 5 Cir., 247 F. 463; Pappas v. United States, 9 Cir., 241 F. 665; Cohen v. United States, 9 Cir., 214 F. 23, certiorari denied 235 U.S. 696, 35 S. Ct. 199, 59 L. Ed. 430; United States v. Rispoli, D.C.E.D.Pa., 189 F.271; United States v. Bozeman, D.C.W.D. Wash., 236 F. 432.*fn3 In the only case which has ruled otherwise, Johnson v. United States, 8 Cir., 221 F. 250, the court, as Wigmore, id., points out, failed to consider the exception at all. In Yoder v. United States, 10 Cir., 80 F.2d 665, the defendant's divorced wife was allowed to testify in denial of the defendant's testimony, but Judge McDermott rested the court's decision on the broader ground of the wife's competency. See also Cohen v. United States, 5 Cir., 120 F.2d 139.In Kerr v. United States, 9 Cir., 11 F.2d 227, certiorari denied 271 U.S. 689, 46 S. Ct. 639, 70 L. Ed. 1153, on a prosecution for violation of the mails, a wife was allowed to testify that her husband had mailed her poisoned candy.
To say of this statute at bar that all it does is to preserve the purity of our federal compact is to shut our eyes to the realities of modern federal crime, where the federal ground, whatever it may be, is the constitutional excuse and justification, rather the reason for being, of the legislation. Cf. Chamberlain, Federal Criminal Statutes, 1934, 20 A.B.A.J. 501; Federal Co-operation in Criminal Law Enforcement, 48 Harv.L.Rev. 489; 1 Law & Contemp. Prob. 399-508. Whatever else this statute may do, it strikes at the exploitation of women, and comes directly within the reason of the exception. After all, the situation of the injured wife deserves some consideration; and in circumstances such as are here presented, we think it would be shocking to deny her the right to testify. With Denning v. United States, supra, 247 F. at page 466, we believe that "a woman is as much entitled to protection against complete degradation as against a simple assault."
Although the further point has been urged in the two able briefs presented on behalf of the accused that confidential communications between husband and wife were improperly allowed, we think that is not the case here. For application of the privilege, the communications must be such as from their nature were fairly intended to be confidential. Wolfle v. United States, 291 U.S. 7, 54 S. Ct. 279, 78 L. Ed. 617; Yoder v. United States, supra; Wigmore, id. § 2336. Wigmore indeed urges that there should be the same exception for necessity as in the privilege against testifying, id. § 2338; and the Institute's Model Code, supra, so provides. Further, it is clear that communications actually made outside the marriage relation, as before marriage, are not within the rule. Halback v. Hill, 49 App.D.C. 127, 261 F. 1007; Yoder v. United States, supra; Commonwealth v. Barronian, supra; Wigmore, id. § 2335; and compare statutes cited above. Here the communications most important to the case occurred before marriage.Again, the privilege applies only to communications, not to acts, which would include the taking of the money from her, or to communications in the presence of third parties, such as the various threats in the presence of others, as well as the arrangements made with others for places for her to work. Wolfle v. United States, supra; Wigmore, id. § 2337, 2339. In view of all that is thus admissible, what would be left is of very minor importance, hardly distinguishable from what is to be admitted. And we feel quite clear that under the circumstances whatever defendant said to her was not intended to be confidential and does not come within the privilege. New York Life Ins. Co. v. Mason, 9 Cir., 272 F. 28; Kansas City Life Ins. Co. v. Jones, D.C.S.D. Cal., 21 F.Supp. 159; Parkhurst v. Berdell, 110 N.Y. 386, 18 N.E. 123, 6 Am.St.Rep. 384. On her testimony he made no bones about issuing his directions for her work of prostitution in the presence of others; and it is the merest chance, not the nature of the communications or his desire to keep them confidential, which finds certain of his orders to her made to her alone. We hold that the court committed no error in the admission of evidence.
The other assignment of error is based on an occurrence in the midst of trial after the wife's highly incriminating testimony had been given, when defendant attempted to dismiss the attorney appointed to represent him by the court. The background of this incident must be stated. Although the docket entries below do not appear in the record, the brief for the United States states that on February 16, 1942, or shortly after defendant's arrest, an attorney, Mr. Brandenberg, appeared on behalf of the wife, who was being held as a material witness, that defendant was indicted on February 20, and that Mr. Brandenberg filed a notice of appearance for defendant on February 25.Defendant pleaded not guilty on March 4. On March 11, when the case was called for trial, defendant addressed the court and stated that he wished to represent himself. The record before us is an abbreviated narrative record made up by counsel and certified by the court, as permitted by us in granting defendant leave to appeal in forma pauperis. It goes on: "He said he cannot afford a lawyer, so the Court offered to assign a lawyer. Mr. Brandenberg requested permission to withdraw. The Court granted this request and then assigned Mr. Brandenberg to defend the defendant and the case was adjourned to March 12, 1942."
The case went on trial on March 13, 16, and 17. On March 16, when the wife's examination and cross-examination had been completed, the record shows that "Defendant Mitchell addressed the Court and stated 'I would like the dismissal of this attorney. I am within my rights.'" To this the court said: "I have assigned him to represent you," whereupon defendant said: "I refuse to accept this man as my attorney." Then the court replied: "Sit down. The Jury will disregard this demonstration." And the record continues: "During the trial Matthew F. Brandenberg, Esq., attorney for the defendant Mitchell, consulted with Mitchell and Mitchell made no further objection to Mr. Brandenberg acting as his attorney, except as set forth above."
The claim of error as to the assignment of Mr. Brandenberg in the first instance would seem clearly not well taken. The court here seems to have been properly solicitious of the rights and welfare of an accused. Defendant said he could not afford a lawyer; and so the court relieved him of this obligation, but, properly mindful of the constitutional right to counsel and its safeguarding in the federal courts (cf. The Right to Benefit of Counsel Under the Federal Constitution, 42 Col.L.Rev. 271, and cases hereinafter cited), provided for such counsel by appointing the lawyer already familiar with the case. Defendant, far from objecting, availed ...