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 interfering 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 the effective cause of her immoral activities; specifically, the jury could have concluded that the will directing the transportation for immoral purposes was appellant’s, and that appellant therefore “transported” Miss Lanuzza though he provided neither the funds nor the physical means for the trip. See 18 U.S.C.A. § 2(b), and ¶ 8 of Reviser’s Notes to 18 U.S.C.A. § 2421. See also Wright v. United States, 175 F.2d 384, 387 (8th Cir., 1949); Wagner v. United States, 171 F.2d 354, 360, 363 (5th Cir., 1948).

II

Appellant asserts that the judgment must be reversed because the court reporter failed to record the closing arguments of counsel in violation of the statutory command that “all proceedings in criminal cases had in open court” be recorded verbatim. 28 U.S.C.A. § 753 (b) (1). Appellant has not suggested any error that may have occurred in the prosecuting attorney’s summation. The sole error specified is the failure to record the summations; this error, appellant argues, in itself requires reversal and a new trial.1

We do not agree. In reviewing criminal convictions on appeal we are to disregard “error * * * which does not affect substantial rights.” Rule 52(a), Federal Rules of Criminal Procedure. If the closing arguments of counsel contained no error affecting appellant’s substantial rights, then failure to record those arguments would also be harmless error. Appellant argues that since the summations were not recorded we cannot be sure. But we are not compelled to set aside a valid conviction because of an error which may have been wholly harmless in order to be sure that we are not, through ignorance of the facts, denying relief for error which prejudiced appellant’s substantial rights. The trial judge, the prosecuting attorney, appellant’s trial counsel, the reporter, and the appellant himself are all available, as also, no doubt, are other witnesses to what transpired. The appropriate procedure is to vacate the judgment and remand for a nearing to determine whether appellant was prejudiced by the error in failing to record the arguments. If the_ trial court concludes that he was, a new trial may be ordered. If the court concludes that he was not, a new final judgment may be entered. See Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954). See also Killian v. United States, 368 U.S. 231, 241-244, 82 L.Ed. 302, 7 L.Ed.2d 256 (1961); United States v. Shotwell Mfg. Co., 355 U.S. 233, 78 S. Ct. 245, 2 L.Ed.2d 234 (1957) ; Ogden v. United States, 303 F.2d 724, 737-738 (9th Cir., 1962).2

Appellant argues that in Stephens v. United States, 289 F.2d 308 (1961), the Court of Appeals for the Fifth Circuit adopted a rule which would require outright reversal in circumstances such as are presented here. We think Stephens is distinguishable. The court there stated that the defendant required the transcript of unrecorded proceedings to “properly present certain specified errors to this Court” (289 F.2d at 309); in the present case, appellant has specified no error to which the closing arguments would be relevant. It also appears from the briefs and record in Stephens that defendant represented himself at trial; appointed counsel entering the case for the first time on appeal. This circumstance materially enhanced the likelihood that substantial error occurred in the unrecorded proceedings (which included the impaneling of the jury as well as closing arguments), and materially reduced the likelihood that a reasonably accurate estimate of the possibility of prejudice could be arrived at in a hearing if the case were remanded for that purpose.

Vacated and remanded for further proceedings.