Gebardi v. United States
Facts
A man and a woman, not then husband and wife, were indicted for conspiring together to transport the woman across state lines so they could engage in sexual intercourse. The evidence showed that they engaged in illicit sexual relations during the journeys, that the man purchased railway tickets for both of them for at least one trip, and that the woman agreed in advance to go and voluntarily went for the immoral purpose alleged. There was no evidence that any unnamed third person had joined the conspiracy. The proof showed no more as to the woman than willing participation and consent to her own transportation.
Issue
Whether a woman who merely consents to and voluntarily undertakes interstate transportation for an immoral purpose may be convicted of conspiracy with the transporting man to violate the Mann Act, even though her consent alone does not violate the Act. Also, whether the evidence supported conspiracy convictions where no other conspirator was proved.
Rule
Where a substantive statute contemplates a participant's acquiescence as an inseparable incident of the offense but does not punish that participant for mere consent, that same participation is not, without more, automatically punishable as conspiracy under the general conspiracy statute. Under the Mann Act, the transported woman's mere agreement to go and voluntary participation are not enough; to fall within the Act she must at least aid or assist someone else in transporting or procuring transportation for herself, and that aid must be more active than mere agreement.
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If federal prosecutors charge both Nolan and Tessa with conspiracy to violate the transportation statute, what is the strongest argument for Tessa's acquittal?