1. Section 2 of the Mann Act imposes a penalty upon
"Any person who shall knowingly transport or cause to be
transported, or aid or assist in obtaining transportation for, or
in transporting in interstate or foreign commerce . . . any woman
or girl for the purpose of prostitution or debauchery or for any
other immoral purpose. . ."
Held:
That a woman who is the willing object of such transportation,
but who does not aid or assist otherwise than by her consent, is
not guilty of the offense. P.
287 U. S.
119.
2. A woman merely acquiescing in her transportation by a man for
immoral conduct between them in violation of § 2 of the Mann Act
does not thereby commit the crime of conspiring to commit the
substantive offense of which, by the transportation, he alone
becomes guilty. P.
287 U. S.
123.
So
held upon the ground that, as Congress set out in
the Mann Act to deal with cases which involve consent and agreement
on the part of the woman in every case in which she is a voluntary
agent at all, the failure of the Act to condemn her participation
in transportation effected with her mere consent evinces an
affirmative legislative policy to leave her acquiescence
unpunished.
Page 287 U. S. 113
This policy would be contravened were it to be held that the
very passage of the Mann Act effected a withdrawal, by the earlier
conspiracy statute, of that immunity which the Act itself
confers.
57 F.2d 617 reversed.
Certiorari, 286 U.S. 539, to review the affirmance of
convictions and sentences of the petitioners, a man and a woman,
for alleged conspiracies, in three counts.
Page 287 U. S. 115
MR. JUSTICE STONE delivered the opinion of the Court.
This case is here on certiorari, 286 U.S. 539, to review a
judgment of conviction for conspiracy to violate the Mann Act (36
Stat. 825, 18 U.S.C. § 397
et seq.). Petitioners, a man
and a woman, not then husband and
Page 287 U. S. 116
wife, were indicted in the District Court for Northern Illinois
for conspiring together, and with others not named, to transport
the woman from one state to another for the purpose of engaging in
sexual intercourse with the man. At the trial without a jury, there
was evidence from which the court could have found that the
petitioners had engaged in illicit sexual relations in the course
of each of the journeys alleged; that the man purchased the railway
tickets for both petitioners for at least one journey, and that, in
each instance, the woman, in advance of the purchase of the
tickets, consented to go on the journey and did go on it
voluntarily for the specified immoral purpose. There was no
evidence supporting the allegation that any other person had
conspired. The trial court overruled motions for a finding for the
defendants and in arrest of judgment, and gave judgment of
conviction, which the Court of Appeals for the Seventh Circuit
affirmed, 57 F.2d 617, on the authority of
United States v.
Holte, 236 U. S. 140.
The only question which we need consider here is whether, within
the principles announced in that case, the evidence was sufficient
to support the conviction. There, the defendants, a man and a
woman, were indicted for conspiring together that the man should
transport the woman from one state to another for purposes of
prostitution. In holding the indictment sufficient, the court said
(p.
236 U. S.
144):
"As the defendant is the woman, the district court sustained a
demurrer on the ground that, although the offense could not be
committed without her, she was no party to it, but only the victim.
The single question is whether that ruling is right. We do not have
to consider what would be necessary to constitute the substantive
crime under the Act of 1910 [the Mann Act], or what evidence would
be required to convict a woman under an indictment like
Page 287 U. S. 117
this, but only to decide whether it is impossible for the
transported woman to be guilty of a crime in conspiring as
alleged."
The court assumed that there might be a degree of cooperation
which would fall short of the commission of any crime, as in the
case of the purchaser of liquor illegally sold. But it declined to
hold that a woman could not under some circumstances not precisely
defined, be guilty of a violation of the Mann Act, and of a
conspiracy to violate it as well. Light is thrown upon the intended
scope of this conclusion by the supposititious case which the court
put (p.
236 U. S.
145):
"Suppose, for instance, that a professional prostitute, as well
able to look out for herself as was the man, should suggest and
carry out a journey within the Act of 1910 in the hope of
blackmailing the man, and should buy the railroad tickets, or
should pay the fare from Jersey City to New York; she would be
within the letter of the Act of 1910, and we see no reason why the
act should not be held to apply. We see equally little reason for
not treating the preliminary agreement as a conspiracy that the law
can reach if we abandon the illusion that the woman always is the
victim."
In the present case, we must apply the law to the evidence --
the very inquiry which was said to be unnecessary to decision in
United States v. Holte, supra.
First. Those exceptional circumstances envisaged in
United States v. Holte, supra, as possible instances in
which the woman might violate the act itself, are clearly not
present here. There is no evidence that she purchased the railroad
tickets or that hers was the active or moving spirit in conceiving
or carrying out the transportation. The proof shows no more than
that she went willingly upon the journeys for the purposes
alleged.
Page 287 U. S. 118
Section 2 of the Mann Act [
Footnote 1] (18 U.S.C. § 398), violation of which is
charged by the indictment here as the object of the conspiracy,
imposes the penalty upon
"any person who shall knowingly transport or cause to be
transported, or aid or assist in obtaining transportation for, or
in transporting, in interstate or foreign commerce . . . any woman
or girl for the purpose of prostitution or debauchery, or for any
other immoral purpose. . . ."
Transportation of a woman or girl whether with or without her
consent, or causing or aiding it, or furthering it in any of the
specified ways, are the acts punished when done with a purpose
which is immoral within the meaning of the law.
See Hoke v.
United States, 227 U. S. 308,
227 U. S.
320.
The Act does not punish the woman for transporting herself; it
contemplates two persons -- one to transport and
Page 287 U. S. 119
the woman or girl to be transported. For the woman to fall
within the ban of the statute, she must, at the least, "aid or
assist" someone else in transporting or in procuring transportation
for herself. But such aid and assistance must, as in the case
supposed in
United States v. Holte, supra, 236 U. S. 145,
be more active than mere agreement on her part to the
transportation and its immoral purpose. For the statute is drawn to
include those cases in which the woman consents to her own
transportation. Yet it does not specifically impose any penalty
upon her, although it deals in detail with the person by whom she
is transported. In applying this criminal statute, we cannot infer
that the mere acquiescence of the woman transported was intended to
be condemned by the general language punishing those who aid and
assist the transporter, [
Footnote
2] any more than it has been inferred that the purchaser of
liquor was to be regarded as an abettor of the illegal sale.
State v. Teahan, 50 Conn. 92;
Lott v. United
States, 205 F. 28;
cf. United States v. Farrar,
281 U. S. 624,
281 U. S. 634.
The penalties of the statute are too clearly directed against the
acts of the transporter, as distinguished from the consent of the
subject of the transportation. So it was intimated in
United
States v. Holte, supra, and this conclusion is not disputed by
the government here, which contends only that the conspiracy charge
will lie though the woman could not commit the substantive
offense.
Second. We come thus to the main question in the case
-- whether, admitting that the woman, by consenting, has
Page 287 U. S. 120
not violated the Mann Act, she may be convicted of a conspiracy
with the man to violate it. Section 37 of the Criminal Code (18
U.S.C. § 88) punishes a conspiracy by two or more persons "to
commit any offense against the United States." The offense which
she is charged with conspiring to commit is that perpetrated by the
man, for it is not questioned that, in transporting her, he
contravened § 2 of the Mann Act.
Cf. Caminetti v. United
States, 242 U. S. 470.
Hence we must decide whether her concurrence, which was not
criminal before the Mann Act nor punished by it, may, without more,
support a conviction under the conspiracy section, enacted many
years before. [
Footnote 3]
As was said in the
Holte case (p.
236 U. S.
144), an agreement to commit an offense may be criminal
though its purpose is to do what some of the conspirators may be
free to do alone. [
Footnote 4]
Incapacity of one to commit the substantive offense does not
necessarily imply that he may with impunity conspire with others
who are able to commit it. [
Footnote 5]
Page 287 U. S. 121
For it is the collective planning of criminal conduct at which
the statute aims. The plan is itself a wrong which, if any act be
done to effect its object, the state has elected to treat as
criminal.
Clune v. United States, 159 U.
S. 590,
159 U. S. 595.
And one may plan that others shall do what he cannot do himself.
See United States v. Rabinowich, 238 U. S.
78,
238 U. S.
86-87.
But, in this case, we are concerned with something more than an
agreement between two persons for one of them to commit an offense
which the other cannot commit. There is the added element that the
offense planned, the criminal object of the conspiracy, involves
the agreement of the woman to her transportation by the man, which
is the very conspiracy charged.
Congress set out in the Mann Act to deal with cases which
frequently, if not normally, involve consent and agreement on the
part of the woman to the forbidden transportation. In every case in
which she is not intimidated or forced into the transportation, the
statute necessarily contemplates her acquiescence. Yet this
acquiescence, though an incident of a type of transportation
specifically dealt with by the statute, was not made a crime under
the Mann Act itself. Of this class of cases, we say that the
substantive offense contemplated by the statute itself involves the
same combination or community of purpose of two persons only which
is prosecuted here as conspiracy. If this were the only case
covered by the Act, it would be within those decisions which hold,
consistently
Page 287 U. S. 122
with the theory upon which conspiracies are punished, that,
where it is impossible under any circumstances to commit the
substantive offense without cooperative action, the preliminary
agreement between the same parties to commit the offense is not an
indictable conspiracy either at common law,
Shannon and Nugent
v. Commonwealth, 14 Pa. 226;
Miles v. State, 58 Ala.
390;
cf. State v. Law, 189 Iowa, 910, 179 N.W. 145, 11
A.L.R.194;
see State ex rel. Durner v. Huegin, 110 Wis.
189, 243, 85 N.W. 1046, 62 L.R.A. 700, or under the federal
statute. [
Footnote 6]
See
United States v. Katz, 271 U. S. 354,
271 U. S. 355;
Norris v. United States, 34 F.2d 839, 841,
reversed on
other grounds, 281 U. S. 281 U.S.
619;
United States v. Dietrich, 126 F. 664, 667. But
criminal transportation under the Mann Act may be effected without
the woman's consent, as in cases of intimidation or force (with
which we are not now concerned). We assume, therefore, for present
purposes, as was suggested in the
Holte case,
supra, p.
236 U. S. 145,
that the decisions last mentioned do not, in all strictness, apply.
[
Footnote 7] We do not rest
Page 287 U. S. 123
our decision upon the theory of those cases, nor upon the
related one that the attempt is to prosecute as conspiracy acts
identical with the substantive offense.
United States v.
Dietrich, 126 F. 664. We place it, rather, upon the ground
that we perceive in the failure of the Mann Act to condemn the
woman's participation in those transportations which are effected
with her mere consent, evidence of an affirmative legislative
policy to leave her acquiescence unpunished. We think it a
necessary implication of that policy that, when the Mann Act and
the conspiracy statute came to be construed together, as they
necessarily would be, the same participation which the former
contemplates an an inseparable incident of all cases in which the
woman is a voluntary agent at all, but does not punish, was not
automatically to be made punishable under the latter. It would
contravene that policy to hold that the very passage of the Mann
Act effected a withdrawal by the conspiracy statute of that
immunity which the Mann Act itself confers.
It is not to be supposed that the consent of an unmarried person
to adultery with a married person, where the latter alone is guilty
of the substantive offense, would render the former an abettor or a
conspirator,
compare In re Cooper, 162 Cal. 81, 85, 121 P.
318, or that the acquiescence of a woman under the age of consent
would make her a coconspirator with the man to commit statutory
rape upon herself.
Compare Queen v. Tyrrell, [1894] 1 Q.B.
710. The principle, determinative of this case, is the same.
On the evidence before us, the woman petitioner has not violated
the Mann Act, and, we hold, is not guilty of a conspiracy to do so.
As there is no proof that the man conspired with anyone else to
bring about the transportation, the convictions of both petitioners
must be
Reversed.
MR. JUSTICE CARDOZO concurs in the result.
[
Footnote 1]
"Any person who shall knowingly transport or cause to be
transported, or aid or assist in obtaining transportation for, or
in transporting, in interstate or foreign commerce, or in any
Territory or in the District of Columbia, any woman or girl for the
purpose of prostitution or debauchery, or for any other immoral
purpose, or with the intent and purpose to induce, entice, or
compel such woman or girl to become a prostitute or to give herself
up to debauchery, or to engage in any other immoral practice, or
who shall knowingly procure or obtain, or cause to be procured or
obtained, or aid or assist in procuring or obtaining, any ticket or
tickets, or any form of transportation or evidence of the right
thereto, to be used by any woman or girl in interstate or foreign
commerce, or in any Territory or the District of Columbia, in going
to any place for the purpose of prostitution or debauchery, or for
any other immoral purpose, or with the intent or purpose on the
part of such person to induce, entice, or compel her to give
herself up to the practice of prostitution, or to give herself up
to debauchery, or any other immoral practice, whereby any such
woman or girl shall be transported in interstate or foreign
commerce, or in any Territory or the District of Columbia, shall be
deemed guilty of a felony, and upon conviction thereof shall be
punished by a fine not exceeding $5,000, or by imprisonment of not
more than five years, or by both such fine and imprisonment, in the
discretion of the court."
[
Footnote 2]
Sec. 3 of the Act (18 U.S.C. § 399), directed toward the
persuasion, inducement, enticement, or coercion of the prohibited
transportation, also includes specifically those who "aid or
assist" in the inducement or the transportation. Yet it is obvious
that those words were not intended to reach the woman who, by
yielding to persuasion, assists in her own transportation.
[
Footnote 3]
Section 30, Act of March 2, 1867 (14 Stat. 471, 484), "except
for an omitted not relevant provision, . . . has continued from
that time to this, in almost precisely its present form."
See
United States v. Gradwell, 243 U. S. 476,
243 U. S.
481.
[
Footnote 4]
The requirement of the statute that the object of the conspiracy
be an offense against the United States, necessarily statutory,
United States v.
Hudson, 7 Cranch 32, avoids the question much
litigated at common law (
see cases cited in Wright, The
Law of Criminal Conspiracies (Carson ed. 1887) and in Sayre,
Criminal Conspiracy, 35 Harv.L.Rev. 393) of the criminality of
combining to do an act which anyone may lawfully do alone.
[
Footnote 5]
So it has been held repeatedly that one not a bankrupt may be
held guilty under § 37 of conspiring that a bankrupt shall conceal
property from his trustee (Bankruptcy Act § 29(b), 11 U.S.C. §
52(b)).
Tapack v. United States, 220 F. 445,
cert.
denied, 238 U.S. 627;
Jollit v. United States, 285 F.
209,
cert. denied, 261 U.S. 624;
Israel v. United
States, 3 F.2d 743;
Kaplan v. United States, 7 F.2d
594,
cert. denied, 269 U.S. 582.
And see United States
v. Rabinowich, 238 U. S. 78,
238 U. S. 86-87.
These cases proceed upon the theory (
see United States v.
Rabinowich, supra, 238 U. S. 86)
that only a bankrupt may commit the substantive offense, though we
do not intimate that others might not be held as principals under
Criminal Code, § 332 (18 U.S.C. § 550).
Cf. Barron v. United
States, 5 F.2d 799.
In like manner,
Chadwick v. United States, 141 F. 225,
sustained the conviction of one not an officer of a national bank
for conspiring with an officer to commit a crime which only he
could commit.
And see United States v. Martin, 4 Cliff.
156;
United States v. Stevens, 44 F. 132.
[
Footnote 6]
The rule was applied in
United States v. N.Y.C.. & H. R.
Co., 146 F. 298;
United States v. Sager, 49 F.2d 725.
In the following cases, it was recognized and held inapplicable for
the reason that the substantive crime could be committed by a
single individual:
Chadwick v. United States, 141 F. 225;
Laughter v. United States, 259 F. 94;
Lisansky v.
United States, 31 F.2d 846,
cert. denied, 279 U.S.
873. The conspiracy was also deemed criminal where it contemplated
the cooperation of a greater number of parties than were necessary
to the commission of the principal offense, as in
Thomas v.
United States, 156 F. 897;
McKnight v. United States,
252 F. 687.
Cf. Vannata v. United States, 289 F. 424;
Ex parte O'Leary, 53 F.2d 956.
Compare Queen v.
Whitchurch, 24 Q.B.D. 420.
[
Footnote 7]
It should be noted that there are many cases not constituting "a
serious and substantially continued group scheme for cooperative
law breaking" which may well fall within the recommendation of the
1925 conference of senior circuit judges that the conspiracy
indictment be adopted "only after a careful conclusion that the
public interest so requires." Atty.Gen. Rep. 1925, pp. 5, 6.