# Petition — Rich v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1463%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 439 U.S. 964 ## Text - Supreme Court, BS. | PILED 1 AUG 2 1978 | pax JR., CLERK | IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1977 No. A 8.2] 86 JACQUELINE RICH, Petitioner, VS. UNITED STATES OF AMERICA. PETITION FOR A WRIT OF CERTIORARI To the United States Court of Appeals for the Eighth Circuit IRL B. BARIS 2020 Railway Exchange Building 611 Olive Street St. Louis, Missouri 63101 (314) 231-1312 Attorney for Petitioner RS ES A | ATA St Louis Law Printing Co.. Inc.. 812 Olive Street 63101 314-231-4477 te ES ee, a eT INDEX Page eee ooo l ae Ue Lider S One sasecccrccccces 2 ele, ew nk ws/snscccveccces 3 Constitutional Provisions, Statutes and Rules Involved ... 4 LR AGEs bb cobs seccccccecece 9 Reasons for Granting the Writ ..............-.00005: 14 ee obs sass cccsee cece 14 BE. BEbpcOPGMG GUEWONNOMCE ....... wee e eee, 19 WEN. Umterwiew of witmcsses ............. eee eeeees 22 IV. Favorable evidence of unavailable witness ...... 25 V. Submissible case (legality of Nevada prostitution) 30 VI. Adoption of related petition for certiorari ...... 33 ee eee e ccc eees 33 Appendix A—Opinion of Court of Appeals, dated June 7, i OSE ke een ccecsgvccscrese A-1 PTR WRUREES SERN e he ese ce ceererccccccce A-20 Appendix C—Order of Court of Appeals, dated July 3, 1978, denying rehearing ...........-.-0-eeeeeee: A-21 Appendix D—Excerpts from testimony of Kathleen Wag- goner before grand jury, June 1, 1977 ............-. A-22 Citations Cases Alderman v. United States, 394 U.S. 165 (1969) ....3, 21, 22 Brady v. Maryland, 373 U.S. 82 (1962) .......... 3, 28, 30 Chambers v. Mississippi, 410 U.S. 284 (1973) ......... 30 Everitt v. United States, 281 F. 2d 429 (Sth Cir. 1960) .. 17 Gavino v. MacMahon, 499 F. 2d 1191 (2nd Cir. 1974)... 18 Kent v. Dulles, 357 U.S. 116 (1958) ................ 32 Lerma v. United States, 387 F. 2d 187 (8th Cir. 1968)... 32 McQueen v. Swenson, 498 F. 2d 207 (8th Cir. 1974) ... 23 Mortensen v. United States, 322 U.S. 369 (1944) ....... 32 Stans v. Gagliardi, 485 F. 2d 1290 (2nd Cir. ae 17 State v. Berstein, 372 S.W. 2d 57 (Mo. ORS Pa 24 Thomas v. Wyrick, 535 F, 2d 407 (8th Cir. ee 23 Twitchell v. United States, 313 F. 2d 425 (9th Cir. 1963) 32 United States v. Allen, 409 F. 2d 611 (10th Cir. 1969) .. 29 United States v. Allison, 474 F. 2d 286 (Sth Cir. 1973) .. 29 United States v. Didier, 542 F. 2d 1182 (2nd Cir. 1976) .. 18 United States v. Long, 449 F. 2d 288 (8th Cir. 1971) .... 24 United States v. Lovasco, 431 U.S. 783 gs Se 2 United States v. McCarthy, 292 F. Supp. 937 (S.D.N.Y. 1968) United States v. Milano, 443 F, 2d 1022 (10th Cir. 1971) 29 United States v. Millican, 414 F. 2d 811 (Sth Cir. 1969) 17 United States v. Mitchell, 354 F. 2d 767 (2nd Cir. 1966) . 17 United States v. Ploeger, 428 F. 2d 1204 (6th Cir. 1970). 17 United States v. Walker, 537 F. 2d 1192 (4th Cir. 1976). 17 United States v. Vole, 435 F. 2d 774 (7th Cir. 1970) ... 24 ill Constitutional Provisions Fifth Amendment, Constitution of the United States .... 4 Sixth Amendment, Constitution of the United States .... 4 Statutes Title 18, United States Code: Cha ey ees Te ee ee ee 32 RN ra sche s suk Os dale secede was a'en 5,9, 10, il, 31 ta ease oes s hw alee 8 49 8% 4, 6,9, 10, 11, 31 PEER ETS CETTE CELE 4,22 APES Sr Pee Cee TT EES 22 22 Fe eer ere Teer rT yee Tee eee ee Rules Rule 16(a), Federal Rules of Criminal Procedure 6, 20, 21, 22 Rule 16(d)(1), Federal Rules of Criminal DS eS Va Ea ne 3, 7, 20, 21, 22 Rule 804, Federal Rules of Evidence ........ 3, 7, 28, 29, 30 Miscellaneous Canon 39 of Professional Ethics .............-+00055 Comisky, Declare an End to Judicial Quotas, 36 Federal Bar Journal 30 (1977) ...........-5555 Weinstein’s Evidence, para. 804(b)(1)(05], page 804-68 ... 1... eee ee eee eee ene Wharton, Criminal Evidence (12th Ed., 1955), Ra nau ns Gee ae ee SUAS SWe bh bed vesesi Wharton, Criminal Evidence (12th Ed., 1955), 0 ok See weer re eee eS oe ee ee Wright, Feder: | Practice and Procedure, 0 2) Been IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1977 Naa ee JACQUELINE RICH, Petitioner, VS. UNITED STATES OF AMERICA. PETITION FOR A WRIT OF CERTIORARI To the United States Court of Appeals for the Eighth Circuit Jacqueline Rich, your petitioner, respectfully prays that a writ of certiorari be issued to review the judgment of the United States Court of Appeals for the Eighth Circuit, entered in the above-entitled cause on June 7, 1978. OPINIONS BELOW This cause was decided by a panel of the United States Court of Appeals for the Eighth Circuit on June 7, 1978, in an opinion which has not yet been officially reported. The opinion is re- ptt, aa produced as Appendix A hereto. (The panel of the Court of Appeals consisted of Chief Judge Gibson and Circuit Judges Ross and Webster. A footnote to the opinion states that Judge Webster heard the oral argument, participated in the confer- ence and concurred in the result, but he was not sitting on the Court at the time of the filing of the opinion because of his ap- pointment as Director of the Federal Bureau of Investigation.) On July 3, 1978, the Court of Appeals entered an order deny- ing petitioner’s petition for rehearing in banc and denying the petition for rehearing. (See Appendix C.) No opinion was writ- ten, and the order has not been officially reported.’ JURISDICTION The judgment of the United States Court of Appeals was entered on June 7, 1978. (See Appendix B.) A timely petition for rehearing and suggestion of appropriateness of rehearing before another panel or in banc was denied on July 3, 1978. (See Appendix C.) The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1). ' Actually, petitioner filed a petition for rehearing and suggestion of appropriateness of rehearing before another panel or in banc. The reason for the suggestion of another panel was that, in the govern- ment’s brief in the Court of Appeals, there were at least nine refer- ences to matters outside the record; it was suggested that the govern- ments brief be stricken and that either no brief or a new brief be filed for reargument before a different panel or before the Court in banc. The Court of Appeals did not refer to this Suggestion in the order of July 3, 1978, denying the petition for rehearing. Compare United States v. Lovasco, 431 U.S. 783, 798-799 (1977) (Stevens, J., dissenting). QUESTIONS PRESENTED I Whether the Court erred in refusing to grant a reasonable continuance of the trial, beyond two weeks from arraignment, in order to give petitioner an opportunity to prepare for trial in Missouri on matters occurring also in Illinois and Nevada. II Whether electronic surveillance and recordings of telephone conversations of petitioner, admittedly in the possession of the government, should have been produced, pursuant to Rule 16 of the Federal Rules of Criminal Procedure and Alderman v. United States, 394 U.S. 165 (1969). Ii Whether the Court erred in denying petitioner an opportunity to interview government witnesses prior to trial, where such wit- nesses were either in the protective custody of the government or their whereabouts were known to the government. IV Whether the Court erred in approving the failure of the gov- ernment, contrary to Brady v. Maryland, 373 U.S. 83 (1963), to produce grand jury testimony containing favorable evidence negating one count of the indictment and having relevance to all other counts, and in refusing to permit petitioner to introduce the transcript into evidence as former testimony of an unavailable witness, admissible under Rule 804 of the Federal Rules of Evi- dence. Vv Whether the Court erred in submitting the cause to the jury, including the question of whether voluntary interstate travel for the sole purpose of engaging in legalized prostitution in con- formity with Nevada laws constitutes a violation of the Mann Act (18 U.S.C. §§ 2421 and 2422). VI Whether certiorari should be granted for reasons which may be set forth in a separate petition of petitioner’s co-defendant. CONSTITUTIONAL PROVISIONS, STATUTES AND RULES INVOLVED Constitution of the United States Fifth Amendment. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Sixth Amendment. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which ~\ let dies district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. Statutes of the United States Title 18, United States Code § 2421. Transportation generally Whoever knowingly transports in interstate or foreign com- merce or in the District of Columbia or in any Territory or Possession of the United States, any woman or girl for the pur- pose of prostitution or debauchery, or for any other immoral pur- pose, 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 Whoever knowingly procures or obtains 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 com- merce, or in the District of Columbia or any Territory or Pos- session of the United States, in going to any place for the pur- pose 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 trans- ported in interstate or foreign commerce, or in the District of Columbia or any Territory or Possession of the United States— Shall be fined not more than $5,000 or imprisoned not more than five years, or both. § 2422. Coercion or enticement of female Whoever knowingly persuades, induces, entices, or coerces any woman or girl to go from one place to another in interstate or foreign commerce, or in the District of Columbia or in any Territory or Possession of the United States, for the purpose of prostitution or debauchery or for any other immoral purpose, or with the intent and purpose on the part of such person that such woman or girl shall engage in the practice of prostitution or dabauchery, or any other immoral practice, whether with or without her consent, and thereby knowingly causes such woman or girl to go and to be carried or transported as a passenger upon the line or route of any common carrier or carriers in interstate or foreign commerce, or in the District of Columbia or in any Territory or Possession of the United States, shall be fined not more than $5,000 or imprisoned not more than five years, or both. Federal Rules of Criminal Procedure Rule 16. Discovery and Inspection (a) Disclosure of Evidence by the Government. (1) Information Subject to Disclosure. (A) Statement of Defendant. Upon request of a defend- ant the government shall permit the defendant to inspect and copy or photograph: any relevant written or recorded statements made by the defendant, or copies thereof, within the possession, custody or control of the government, the existence of which is known, or by the exercise of due dili- gence may become known, to the attorney for the govern- ment; the substance of any oral statement which the gov- ernment intends to offer in evidence at the trial made by the defendant whether before or after arrest in response to —,. yen interrogation by any person then known to the defendant to be a government agent; and recorded testimony of the defendant before a grand jury which relates to the offense charged. Where the defendant is a corporation, partner- ship, association or labor union, the court may grant the defendant, upon its motion, discovery of relevant recorded testimony of any witness before a grand jury who (1) was, at the time of his testimony, so situated as an officer or em- ployee as to have been able legally to bind the defendant in respect to conduct constituting the offense, or (2) was, at the time of the offense, personally involved in the alleged conduct constituting the offense and so situated as an officer or employee as to have been able legally to bind the defend- ant in respect to that alleged conduct in which he was in- volved. = * * * . -_ -_ (d) Regulation of Discovery. (1) Protective and Modifying Orders. Upon a sufficient showing the court may at any time order that the discovery or inspection be denied, restricted, or deferred, or make such other order as is appropriate. Upon motion by a party, the court may permit the party to make such showing, in whole or in part, in the form of a « itten statement to be inspected by the judge alone. If the court enters an order granting relief following such an ex parte showing, the entire text of the party’s statement shall be sealed and pre- served in the records of the court to be made available to the appellate court in the event of an appeal. Federal Rules of Evidence Rule 804. Hearsay Exceptions; Declarant Unavailable (a) Definition of unavailability. “Unavailability as a witness” includes situations in which the declarant— — po (1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement; or (2) persists in refusing to testify concerning the subject matter of his statement despite an order of the court to do sO; or (3) testifies to a lack of memory of the subject matter of his statement; or (4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or (5) is absent from the hearing and the proponent of his statement has been unable to procure his attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), his attendance or testimony) by process or other reasonable means. A declarant is not unavailable as a witness if his exemption, re- fusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of his state- ment for the purpose of preventing the witness from attending or testifying. (b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceed- ing, a predecessor in interest, had an opportunity and simi- lar motive to develop the testimony by direct, cross, or re- direct examination. STATEMENT Petitioner Jacqueline Rich, a defendant below, was convicted on seven counts of an eight-count indictment (R.1),’ charging her with conspiracy and substantive violations of the Mann Act, 18 U.S.C. §§ 2421 and 2422. A co-defendant, Lloyd Pelton, was charged in four of the counts and convicted on two.® The first four counts related to a series of events involving travel between St. Louis, Missouri, and Chicago, Illinois, for prostitution purposes, and the last four related to travel be- tween St. Louis, Missouri, and Winnemucca, Nevada. Count One charged that between September 29, 1976, and October 2, 1976, petitioner and Ann Frazier, as defendants, and Etta Williams, as an unindicted co-conspirator, conspired to violate 18 U.S.C. § 2421, with overt acts being basically the same as the allegations of substantive counts Two, Three and Four. Count Two charged that on September 30, 1976, peti- tioner alone violated 18 U.S.C. § 2421 by transporting and causing to be transported in interstate commerce from St. Louis to Chicago, one Kathleen Waggoner, for the purposes of pros- titution, debauchery and other immoral purposes. Counts Three 2 The following abbreviations used in this petition refer to docu- ments filed in the Court of Appeals: “R”—Original designated Record on Appeal. “Supp. R.”—Supplement to Record, filed November 8, 1977. “Tr."—Transcript of trial testimony (338 pages), including ar- raignment and sentencing. “Supp. Tr.”—Supplementary Transcript of Trial proceedings (22 pages), including argument on motions immediately prior to com- mencement of trial. Petitioner has requested the Clerk of the Court of Appeals to certify and transmit the foregoing documents to this Court in connection with this petition. 3 These two defendants were represented by separate retained counsel and were tried jointly in the United States District Court for the Eastern District of Missouri, Hon. H. Kenneth Wangelin, District Judge, presiding. — and Four were identical in allegations to Count Two, except that the dates alleged in each were September 29, 1976, and the women who travel. 1 were Kathy Bray and Charlotte L. Anderson, respectively. Count Five charged that between October 7, 1976, and Oc- tober 15, 1976, petitioner and co-defendant Pelton conspired to violate 18 U.S.C. § 2421, with overt acts similar to the sub- stantive allegations in Counts Six, Seven and Eight. Count Six charged that on October 13, 1976, petitioner and co-defendant Pelton, in violation of 18 U.S.C. § 2422, persuaded, induced and enticed Shirley Dawson to go in interstate commerce from St. Louis to Nevada, with the intent and purpose on their part that the woman should engage in the practice of prostitution, and that the defendants did thereby knowingly cause the woman to go and to be transported as a passenger upon the line and route of a common carrier in interstate commerce. Counts Seven and Eight were identical to Count Six, except that the dates were October 7 and October 15, respectively, and the women who traveled were Kathy Bray and Charlotte L. Anderson, respectively. Petitioner and her co-defendant were indicted on July 7, 1977. Petitioner was arraigned on July 18, 1977 (Tr. 1), and entered a plea of not guilty (Tr. 3). She was given ten days in which to file pre-trial motions, and the trial was set for August 1, 1977 (Tr. 4). The pre-trial motions were duly filed, and they were overruled on August 1, 1977 (Supp. Tr. 2-14). To the extent relevant to the questions presented by this petition, these motions will be discussed more fully in the Reasons por- tion of this petition. The Court also overruled motions of pe- titioner and Pelton for a continuance (Supp. Tr. 15-21), and immediately thereafter trial commenced on August 1, 1977 (Tr. 4). (The defendant Frazier was not tried with petitioner and Pelton, as she had apparently indicated a willingness to dispose of her case in Chicago (Supp. Tr. 16), under the pro- visions of Rule 20 of the Federal Rules of Criminal Procedure.) — The cause was submitted to the jury on August 3, 1977, and the jury returned a partial verdict on that night (Tr. 326-327), and a verdict as to the balance of the counts on August 4 (Tr. 334-335). The jury found petitioner guilty on all counts ex- cept Count Eight, and Pelton guilty on Counts Five and Seven, and not guilty on Counts Six and Eight. For the Court’s convenience, a summary of the allegations of the indictment and the verdicts follows: Women Defend- Count Statute Dates Involved ants Verdict One § 371 9-29 to Anderson Rich Guilty 10- 2-76 Bray Frazier Not Tried Waggoner Two § 2421 9-30-76 Waggoner Rich Guilty Three § 2421 9-29-76 Bray Rich Guilty Four § 2421 9-29-76 Anderson Rich Guilty Five § 371 10-7 to. Dawson _ Rich Guilty 10-15-76 Bray Pelton Guilty Anderson Six § 2422 10-13-76 Dawson Rich Guilty Pelton Not Guilty Seven § 2422 10- 7-76 Bray Rich Guilty Pelton Guilty Eight § 2422 10-15-76 Anderson Rich Not Guilty Pelton Not Guilty Most of the evidence in the case came from witnesses and ex- hibits produced by the prosecution. Petitioner presented no evi- dence although she wanted to use the grand jury testimony of Waggoner (see Question IV herein); Pelton testified in his own behalf. ~. The evidence tended to show the following: Fred Coughlin testified that he had previously secured women for prostitution purposes from petitioner (Tr. 68-71), and he talked to her in September or October, 1976, with reference to furnishing women for the boat show in Chicago (Tr. 71-72). Thereafter Coughlin and a business associate met two young women at petitioner’s house, and all four drove to Chicago where they shared hotel rooms (Tr. 72-78). He did not pay the girls or petitioner any money in connection with the Chicago trip (Tr. 86). Kathy Bray testified that she and Anderson were the two girls who went to Chicago with Coughlin and his friend, and that later Waggoner came to Chicago with Etta Williams, also known as Agnes Brittain. The purpose of the trip was for the three women, Anderson, Bray and Waggoner, to engage in pros- titution, and they were sent there by petitioner who said they would be managed by Williams (Tr. 105-109). The government did not call Anderson, Waggoner or Wil- liams as witnesses in connection with the Chicago trips. Peti- tioner subpoenaed Waggoner as a witness but she refused to testify because she was awaiting trial on a perjury indictment. An issue is raised in this petition connected with her unavaila- bility as a witness. (See Question IV presented in this petition.) With reference to trips to Winnemucca, Nevada, Bray and Shirley Dawson testified that in October, 1976, Pelton made phone calls from petitioner's house to someone in Winnemucca, Nevada, for the purpose of making arrangements for women to travel there to engage in prostitution. Petitioner and Pelton were to share in their earnings, and petitioner loaned money for plane fares and clothes. Thereafter, Bray, Dawson and Ander- son traveled separately to Winnemucca by airplane. The wo- men registered with the Winnemucca Police Department, as re- quired by local regulations, but Bray did not secure a police license because she had misrepresented her age (Tr. 27-30, 110- 21, 182-191). A representative of the Police Department testi- |) fied that prostitution is legal in Winnemucca, Nevada (Tr. 33). Bray and Dawson each testified on cross-examination that they were not coerced or forced to go to Nevada (Tr. 123, 164-165, 168, 195-196, 210). Pelton testified in his own behalf and generally denied the testimony of Bray and Dawson. He denied that he had made arrangements for them to travel to Winnemucca, or that he had participated in any prostitution activities other than as an occasional customer (Tr. 243-251). At the close of all the evidence, the cause was submitted to the jury after argument and the Court’s charge to the jury (Tr. 289-321), to which the defendants made certain objec- tions (Tr. 257-285, 321-323). The jury deliberated during the evening but did not complete their work and resumed their deliberations the following day. They returned verdicts as pre- viously indicated. On August 19, 1977, petitioner was sentenced to a term of imprisonment of five years on each count, most of which were concurrent, and her total sentence was ten years; Pelton was sentenced to a total of three years imprisonment (Tr. 336-354). At the conclusion of the trial, petitioner’s bond was terminated, and she is presently confined at Alderson, West Virginia. Petitioner and Pelton each duly perfected their separate ap- peals to the United States Court of Appeals for the Eighth Circuit. Oral argument was consolidated and on June 7, 1978, a joint opinion (Appendix A) was rendered affirming the con- victions of both defendants. Petitioner’s timely petition for re- hearing was denied on July 3, 1978. (See Appendix C.) (The petition for rehearing of Pelton was filed after that of petitioner and was denied on July 24, 1978.) This petition for a writ of certiorari seeks to review the judgment of the Court of Appeals affirming the conviction of petitioner Jacqueline Rich. aw Shan REASONS FOR GRANTING THE WRIT I Continuance The indictment herein (R. 1) was filed on July 7, 1977, but petitioner did not become aware of it until she was arrested and released on bond on July 11. She appeared before District Judge Wangelin for arraignment on July 18 (Tr. 1), and the Court set the cause for trial on August 1, 1977 (Tr. 3). De- fense counsel at that time advised the Court that the date was not convenient because of plans to move his office (Tr. 3). The Court indicated that he was going on vacation toward the end of August and wanted to clear his criminal docket before leaving; after giving petitioner ten days in which to file motions, the Court implied that the trial would probably not be held on August 1: “. . . the setting of August 1 will be maintained and we'll take it from there and see what happens at that time.” When defense counsel suggested alternate dates before the Court’s vacation, the Court said that the matter would be set for August 1 and “we'll get to it as soon thereafter as possible” (Tr. 4). On July 27, 1977, within the time permitted by the Court, petitioner filed a number of pre-trial motions, including a mo- tion for continuance (R. 24). In addition to the moving of counsel's office, petitioner set forth other reasons for a con- tinuance, including inability to complete the investigation, the fact that events alleged in the indictment had to be investi- gated in Illinois and Nevada, the lack of contact between de- fense counsel because of scheduling problems, uncertainty as to the status of co-indictee Frazier, delays in discovery, and the refusal of the government to advise as to the whereabouts of prospective witnesses. eiieeeess —_ we The co-defendant Pelton had also filed a motion for con- tinuance {R. 19) based upon his counsel's other court commit- ments, out-of-town travels, press publicity affecting the case,* and necessity of interviewing out-of-town witnesses. On July 27, 1977, the government filed a written response to Pelton’s motion for continuance (R. 21), requesting a denial of the mo- tion for the reason that a continuance would cause “great inconvenience” to the government and witnesses. There was no mention of any threats to witnesses as the government claimed in court five days later. When the case was called for trial on August 1, petitioner an- nounced not ready and referred the Court to the pending motion for a continuance (Supp. Tr. 2). All of the other motions filed by petitioner had not been ruled upon, but they were quickly overruled (Supp. Tr. 2-14). The Court then took up the motion for a continuance. After reference to the move of his office, petitioner’s counsel discussed the difficulties of investigating a case involving facts occurring in Nevada and Chicago, and the need for research of Nevada law (Supp. Tr. 15-16). Government counsel acknowledged that co-defendant Frazier had not been in St. Louis for any discus- sions with other defendants concerning the case (Supp. Tr. 16). To the Court’s request as to the amount of time needed for preparation, petitioner’s counsel stated that they could be ready for trial prior to the Court’s vacation and that there would there- fore be no inconvenience to the Court (Supp. Tr. 17). Pelton’s counsel also explained his difficulties in preparing for trial as a result of out-of-town trips and involvement in other court mat- ters (Supp. Tr. 18-19). 4 As to the publicity, petitioner filed a separate motion for transfer of the cause (R. 35) which was summarily overruled by the District Court immediately prior to the start of the trial (Supp. Tr. 12-14) and without affording an opportunity to make a record on the press coverage (Supp. Tr. 14). —_ Government counsel made some veiled accusations as to possible pressure upon government witnesses, but there was no evidence presented that either defendant was responsible, and government counsel indicated that these government witnesses were in protective custody (Supp. Tr. 18-20). On the basis of these unsubstantiated allegations, which were denied by defend- ants, and which apparently were discussed earlier in a private conversation between the Court and government counsel (Supp. Tr. 19), the Court said “We'll start the voir dire examination in this case just as soon as we can get to it” (Supp. Tr. 20).5 We recognize that many cases have ruled that the matter of a continuance is within the sound discretion of the trial Court, but we believe that this case presents an example of an abuse of discretion for which the judgment of conviction must be reversed and a new trial ordered. When we consider the personal difficulties of counsel and the inability to consult with each other or to investigate the factual and legal background of ° We disagree with the characterization by the Court of Appeals of petitioner’s argument in support of a continuance as “speculation”, and the government's opposing argument as based upon “specific and cogent reasons”. It is true, of course, that petitioner was unable to present evidence of a specific defense witness who was unavailable, but petitioner did refer to the necessity of interviewing Ann Frazier in Chicago (Supp. Tr. 16), and obviously there were witnesses in Nevada who should have been interviewed. If it is only speculation, then the inability to be more positive was a direct result of the lack of investigative time. Certainly counsel could not in good faith rep- resent what would be testified to by witnesses whom he had been : por to interview because of the Court’s desire to try the case quickly. As to the “reasons” in support of the government’s position, we do not know the content of what was presented to the trial Court ex parte, but the government statement in open court was the rankest form of speculation (Supp. Tr. 18). The unsubstantiated accusations that threats emanated from the defendants were contradicted by the fact that petitioner did not see the discovery material until twenty- four hours before trial (Supp. Tr. 18). The red herring technique of the government's speculation became even more apparent during the course of the trial, when witness Kathy Bray broke down in Court (Tr. 134), almost as if by design after she had volunteered that she had been offered protection (Tr. 120). She was subse- — on this case, not only in the St. Louis area but also in Illinois and Nevada, we believe a reasonable continuance should have been granted. Counsvl assured the Court that it would have been possible to properly investigate the case and be ready for trial even before the Court’s vacation. Although the amount of time provided for trial preparation was less than in the instant case, there was a recognition in United States v. Millican, 414 F. 2d 811, 814 (Sth Cir. 1969), that time is needed for counsel “to check out both facts and law, particularly in a case involving events occurring at a locality other than the place of trial.” Distance from the scene where the case should have been investigated was also a factor in the reversal for failure to grant a continuance in United States v. Ploeger, 482 F. 2d 1204 (6th Cir. 1970). See also United States v. Walker, 537 F. 2d 1192 (4th Cir. 1976), and Everitt v. United States, 281 F. 2d 429 (Sth Cir. 1960). In United States v. Mitchell, 354 F. 2d 767, 769 (2nd Cir. 1966), the Second Circuit was sensitive to the desirability of a speedy trial under the Sixth Amendment, but cautioned: “At the same time, however, the desire for expedition can furnish no justification for the subversion of the Sixth Amendment right to present an effective defense through counsel.” In Stans v. Gagliardi, 485 F. 2d 1290, 1291-1292 (2nd Cir. 1975), the Court discussed its rules relating to speedy trials, and, although quently questioned on voir dire examination as to her reasons for being afraid, and she said that she heard it from Shirley Dawson and Agnes Brittain (Etta Williams)—both antagonistic to petitioner —but she had not “personally been threatened by either of these defendants” and never “heard either of these defendants threaten anyone else” (Tr. 173-174)!! But even if there had been threats to any witness, we submit that there are adequate procedures to protect witnesses in danger, includ- ing the drastic remedy of bond revocation upon appropriate proof. A premature trial without adequate preparation, based upon un- proved allegations of threats, is not a satisfactory or constitutional solution. in unable to order the District Court to postpone the trial, Circuit Judges Friendly and Feinberg left no doubt as to their position as to the propriety of a reasonable continuance. In dissent, not from the principle that a continuance was required but from the decision that there was no present power in the Court of Appeals to order the continuance, Judge Lumbard recognized (l.c. 1293) the constitutional implications of the problem as well as the deleterious effect on the administration of justice. In another Second Circuit decision, Gavino v. MacMahon, 499 F. 2d 1191 (2nd Cir. 1974), the facts are similar but are not as strong as those in the instant case. There more than two months had elapsed from date of indictment to the date set for trial, counsel also had other commitments, discovery material had been furnished two weeks before trial,® and it was necessary for counsel to interview prospective witnesses who were out of town. The Second Circuit said (l.c. 1196), in discussing the rules for prompt disposition of criminal cases: “. .. They were never designed to permit a district court to ride roughshod over the right of a defendant to prepare for trial... . “Without minimizing the importance of the public inter- est in prompt disposition of criminal cases, we cannot allow our concern with calendar dispatch to triumph over a de- fendant’s right to a fair trial, which is the foundation of our system of justice. To sacrifice a fair trial to the interest of expedition would surely undermine the true administration of justice.” See also United States v. Didier, 542 F.2d 1182, at fn. 6 (2nd Cir. 1976), that the “speedy trial rules cannot be used to deprive a defendant of adequate opportunity to prepare his defense.” 8 In the instant case, discovery started a little over a week before trial (Supp. Tr. 17), but some material was not furnished until the morning of trial (Supp. Tr. 2). = ee The problem of a “too speedy” trial was recognized in Co- misky, Declare an End to Judicial Quotas, 36 Federal Bar Journal 30, 37 (1977), where the author quotes from several respected authorities, including Chief Judge Swygert of the Seventh Circuit and Chief Judge Kaufman of the Second Cir- cuit, to support his axiom that: “Slow justice is always preferable to speedy injustice.” The denial of a reasonable continuance of the trial deprived petitioner of the due process of law and fair trial guaranteed by the Fifth Amendment to the Constitution of the United States. Petitioner may have been accorded the speedy and public trial required by the Sixth Amendment, but it was at the expense of other Sixth Amendment rights, particularly the right to compulsory process for witnesses and the effective as- sistance of counsel. Because of the conflict of the decision of the Court of Ap- peals herein with decisions of other Courts of Appeals and because of the impact of this decision on the administration of justice with reference to pre-trial investigation, we respect- fully suggest that certiorari should be granted as to this Question. II Electronic surveillance One of the pre-trial motions filed by petitioner was to sup- press the fruits of illegal electronic and other surveillance (R. 41). In it, petitioner stated that her attorney had been informed by the prosecutor that there were some recordings of petition- er’s voice, and that they had been played for the Court with- out petitioner or her counsel being present. The government’s written response (R. 51) confirmed that the electronic sur- siay I as veillance had been played for the Court both before and after the filing of petitioner’s motion. When the matter of electronic surveillance was taken up immediately prior to trial (Supp. Tr. 9), the government filed a motion for an order under Rule 16(d)(1) of the Federal Rules of Criminal Procedure to restrict the discovery of the electronic surveillance (Supp. R. 1), and the order was im- mediately entered (Supp. Tr. 9). Petitioner’s counsel suggested that the tapes bearing her re- corded voice, which had been played for the Court, were state- ments of petitioner and should have been produced under Rule 16(a) of the Federal Rules of Criminal Procedure (Supp. Tr. 10). The government contended that Rule 16(a) “makes it clear that the only statements of the defendant which are to be provided are those taken by the Government agents,” and that “these statements were taken by cooperating individ- uals, not Government agents” (Supp. Tr. 10). The government’s position was clearly erroneous because Rule 16(a) requires production of “any relevant written or recorded statements made by the defendant, or copies thereof, within the possession, custody or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government.” In this instance, there were recorded statements of the defendant which ob- viously were in the possession of the government, for the prose- cutor made them available to the Court ex parte ten days before trial and delivered them to the Court for retention by the Clerk (Supp. Tr. 10-12). The suggestion in the government’s Rule 16(d)(1) motion (Supp. R. 1), in the colloquy in court (Supp. Tr. 11), in the District Court order sealing the tapes and denying access to petitioner (Supp. R. 3), and in the Court of Appeals opinion that there is nothing exculpatory in the tapes, even if true, is irrelevant. Petitioner has not heard the tapes and does not = po know whether they are exculpatory. But Rule 16(a) does not require production of a defendant’s statements only when they are exculpatory; it requires production of all statements, ex- culpatory or incriminating. The opinion of the Court of Appeals erroneously speaks of discovery as a matter of discretion; but the requirements of Rule 16(a)(1)(A) have been mandatory since the 1975 Amend- ments to Rule 16. Furthermore, the suggestion in the opinion that it is “difficult to understand how Rich could have been prejudiced by being denied access to the tapes” is contrary to Alderman v. United States, 394 U.S. 165, 182 (1969), where this Court held that the defendant must be given an opportunity to determine relevance and that “the task is too complex, and the margin for error too great, to rely wholly on the in camera judgment of the trial court to identify those records which might have contributed to the Government’s case.” We believe the Court of Appeals also erred in holding that the tapes could be denied to petitioner under Rule 16(d)(1). If the Rule is applicable here, there was certainly not the “suf- ficient showing” required by that section. The unsupported rep- resentations in paragraph 5(A) of the motion as to threats by petitioner were never substantiated. Although the District Court order (Supp. R. 3) states that the Court heard evidence of danger, the evidence was not presented or preserved in accord- ance with the Rule 16(d)(1) procedure. The District Court and the Court of Appeals both disregarded the requirement in the Rule of a written statement, which is permitted, under cer- tain circumstances, to be presented in an ex parte showing. (The government brief in the Court of Appeals admitted that the motion “was the only writing or communication made to the District Court in this matter.”) Furthermore, a defendant should not be denied discovery material, especially that relating to electronic surveillance, on the possibility that persons or a pending investigation might be — om endangered, for “disclosure must be made even though attended by potential danger to the reputation or safety of third persons or to the national security—unless the United States would pre- fer dismissal of the case to disclosure of the information.” Alderman v. United States, 394 U.S. 165, 181 (1969). Certainly, a hearing should have been conducted to determine the legality and taint of the surveill: . e, pursuant to 18 U.S.C. §§ 3504 and 2510 et seq. Such an evidentiary hearing is con- templated by 18 U.S.C. § 2518(10)(a); Alderman, (at pp. 180-185) sets forth the procedure for such a hearing, recog- nizing that in camera examination by the trial Court is not sufficient. The Court of Appeals has failed to interpret Rule 16(a) and Rule 16(d)(1) properly. In denying petitioner access to her recorded statements, the Court of Appeals is also in conflict with this Court’s decision in Alderman v. United States. For these reasons, we respectfully suggest that certiorari should be granted as to this Question. Ill Interview of witnesses In a pre-trial motion, petitioner sought to compel the govern- ment to make witnesses and statements available to the defense (R. 45). The motion alleged that certain prospective witnesses, including the unindicted co-conspirator Etta Williams (who was obviously the government's source of information leading to the indictment), were either confined or under the control and supervision of the government and therefore unavailable to the defense. As to one witness, Waggoner, the prosecutor had told petitioner's counsel to contact her attorney, although the prose- cutor knew full well that such counsel was out of town. When a, this motion was taken up immediately before the commence- ment of the trial, the Court denied the motion, except to indi- cate that Jencks material would be furnished prior to cross- examination (Supp. Tr. 8). Thereafter, the prosecutor called various witnesses who were not made available to the defense and who had not been inter- viewed by the defense prior to their testimony. The prosecutor did not call Etta Williams and only made her available in the government office after the government rested (Tr. 214-216). The government also did not call Ann Frazier, Charlotte Ander- son or Kathleen Waggoner as witnesses, and they were not made available to the defense nor were their whereabouts disclosed. (Waggoner was subpoenaed by petitioner—see Question IV of this petition. ) We believe that the failure of the government to make their witnesses available for interview constituted reversible error. With the exception of Waggoner, petitioner could not locate the witnesses, especially the two who the government admitted were in their protective custody (Supp. Tr. 20). The opinion of the Court of Appeals does not discuss the inability of petitioner to interview the key witnesses Bray and Dawson prior to their testimony. The former Canon 39 of Professional Ethics provided: “A lawyer may properly interview any witness or pro- spective witness for the opposing side in any civil or crimi- nal action without the consent of opposing counsel or party.” Indeed there is a duty to do so. McQueen v. Swenson, 498 F. 2d 207, 216 (8th Cir. 1974); Thomas vy. Wyrick, 535 F.2d 407 (8th Cir. 1976), cert. denied 429 U.S. 868 (1976). A prosecutor must not interfere with this investigative process by concealing witnesses, as done here. That the trial Court has = some affirmative duty appears from United States v. Vole, 435 F. 2d 774, 778 (7th Cir. 1970): “In any event, since we are remanding the case, we wish to make it clear that witnesses are the special property of neither party and in the absence of compelling reasons the district court should facilitate access to them before trial whenever it is requested. See e.g., Gregory v. United States, 125 U.S. App. D.C. 140, 369 F. 2d 186, 188 (1966); Callahan v. United States, 371 F. 2d 658, 660 (9th Cir. 1967).” See also United States v. McCarthy, 292 F. Supp. 937, 946 (S.D.N.Y. 1968). Compare State v. Berstein, 372 S.W.2d. 57 (Mo. 1963). If the government was attempting to justify a denial of ac- cess to witnesses by the vague and unsubstantiated references to alleged threats, certainly adequate safeguards could have been provided by the Court. If there truly was a threat to the safety of witnesses, why was the threat no longer existent after the government rested—suddenly it was permissible for defense counsel to interview Etta Williams, whereas prior to trial, it was not. The Court of Appeals said that “understandably, she did not wish to speak to defendants prior to trial.” Even if this statement, which was not substantiated in the record, were cor- rect, the District Court should have followed the “better pro- cedure” of having the witness so state, as suggested in United States v. Long, 449 F. 2d 288, 295-296 (8th Cir. 1971), cert. denied 405 U.S. 974 (1972). It is true, of course, as the Opinion states, that petitioner interviewed Williams and decided not to call her as a witness, but had this occurred prior to trial, such an interview might have led to other witnesses whom pe- titioner could have called or to other investigative leads. Obviously, the government's prime purpose was to shield the witnesses against interview and not against danger. This con- =, pan cealment of witnesses and the denial of access for interview by defense counsel deprived petitioner of the effective assistance of counsel and the right to process for and confrontation of wit- nesses, contrary to the Sixth Amendment to the Constitution of the United States. For these reasons, we respectfully suggest that certiorari should be granted as to this Question. IV Favorable evidence of unavailable witness Petitioner filed a pre-trial motion for production of favorable evidence, in which, among other documents, she requested “transcripts of the testimony of all witnesses before any grand jury which investigated this matter which is favorable to this defendant” (R. 43). When the District Court considered the various defense motions on the morning of trial, the prosecutor responded to the Court’s request for an indication of what favorable evidence existed: “We have no favorable evidence, none that we know of, Judge” (Supp. Tr. 3). Defense counsel then pointed to the pendency of an indict- ment against Kathleen Waggoner, the woman named in Count Two, as well as one of those named in Count One, as having been transported from St. Louis to Chicago. It was a perjury indictment’ which indicated that she had testified before the grand jury that petitioner had nothing to do with her trip to Chicago, although the allegation in the instant indictment was that petitioner had transported or caused her to be transported. Government counsel responded that he was willing to turn over his file to the Court, but the Court indicated that this had already been done in camera, and that there was nothing favor- * A copy of the Waggoner perjury indictment was attached to petitioner’s post-trial motion in the trial court (R. 61-64). — able to the defendants, but that Jencks material (less certain expunged portions) would be made available (Supp. Tr. 3-6). Kathleen Waggoner did not testify as a witness for the gov- ernment, and therefore there was no Jencks material as to her. In view of the favorable testimony reflected in the indictment against her, petitioner desired to call her as a defense witness after the government rested. A subpoena was served on her, but, because of her pending indictment, her attorney said she would not testify and would invoke her Fifth Amendment privi- lege (Tr. 218). Petitioner’s counsel therefore requested that her grand jury testimony be furnished so that it could be used pursuant to Rule 804 of the Federal Rules of Evidence (Tr. 219). The government acknowledged that she had appeared before the grand jury and had testified under a grant of immunity (Tr. 219), and although the prosecutor attempted to suggest that he had not fully cross-examined her, he acknowledged that “it was a choice of ours” (Tr. 222). The government stated that “the gist of her testimony” was that Etta Williams, and not Pat Rich, had sent her to Chicago for the boat show (Tr. 224). Thus it was certainly favorable evidence for the defense because it was directly contrary to the allegations of Count Two. The District Court seemed to base its initial ruling denying access to the transcript of grand jury testimony on the basis of the continuing grand jury investigation (Tr. 224-225). Subse- quently, the Court indicated that if petitioner desired to read the entire indictment against the witness Waggoner, this might be permissible; petitioner declined to do so because it would in- form the jury of a pending indictment without a conviction. Fi- nally, the Court refused to permit defense counsel to read only those portions of her grand jury testimony reflected in the Waggoner indictment (Tr. 225-228). As a result, petitioner was not permitted to use Kathleen Wag- goner as a witness for the defense. She was an extremely im- a hae portant witness, because she would have contradicted the testi- mony of witness Bray and would, if believed, have proved petitioner’s lack of involvement in the Chicago trips. The effect on Bray’s testimony would also have affected the Nevada matter, about which she also testified. In the discussion in chambers, petitioner’s counsel speculated that there might be more favorable evidence in the full grand jury transcript than just appeared from the Waggoner indictment (Tr. 226-227). Our suspicion was confirmed when the transcript became available after the verdict herein. (Subsequent to this trial, Ms. Waggoner was tried on her perjury indictment, and during her trial, the grand jury transcript was introduced as Government’s Exhibit 1 therein. It thus became a matter of public record, and petitioner purchased a copy from the Clerk of the District Court.) We undetstand that this Court should not be burdened with matters outside the record, and in fact we complained in the Court of Appeals that the Government's brief there contained numerous matters outside the record. (See footnote 1, supra.) Recognizing that we might be subject to the same criticism, but in the light of the statement in footnote 8 of the Court of Appeals opinion that the worth of the grand jury testimony was “nuga- tory” because we failed to point out specific portions of the tran- script which were favorable, we are taking the liberty of attach- ing, as Appendix D to this petition, excerpts from the grand jury transcript which, had it been available, petitioner would probably have introduced at the trial. We have italicized those portions of the transcript which were quoted in the Waggoner indictment, and the balance comes from the transcript itself.* 8 Appendix D may not be completely accurate because the copy of the grand jury transcript which we were able to obtain is a poor copy, the pages are unnumbered and there have been obvious dele- tions. For a, full consideration of this issue, we respectfully suggest that this Court direct the government to produce more legible copies of the entire grand jury transcript of Ms. Waggoner, including those portions which have been deleted. — == It is obvious from a reading of Appendix D that there was a great deal of favorable evidence in the grand jury transcript other than that which was quoted in the Waggoner indictment. The jury should have been informed that she was introduced to petitioner by Etta Williams (also known as Agnes Brittain), that she originally worked as a prostitute for Miss Williams, that Etta Williams set up the Chicago trip, that although she was at the Drake Hotel, she did not see the other girls who were allegedly there (compare Tr. 143, 170), that she did not know Ann Frazier, the co-indictee, that Ms. Waggoner gave her prostitution fees to Etta Williams, that she knew nothing about an argument testified to by Coughlin and Bray (com- pare Tr. 80, 88, 158, and 170), that no one mentioned peti- tioner’s participation in the Chicago events, that she frequently visited at petitioner’s apartment during times when the govern- ment claimed that calls were being made to Nevada (relevant to contradict the evidence as to Counts Five through Eight), and that she had never been to Nevada. All of this would have been strong evidence contradicting the government’s case. On the basis of the information contained in the Waggoner indictment, the District Court should have ordered the grand jury transcript to be produced. Indeed, the prosecutor was under an affirmative duty to produce it, per Brady v. Mary- land, 373 U.S. 82 (1963). The facts here and in Brady are almost identical. (We respectfully submit that, based upon Brady, summary reversal of the judgment below would not be inappropriate as to this Question.) Once produced, the transcript would be admissible under the provisions of Rule 804 of the Federal Rules of Evidence. For purposes of that Rule, there can be no doubt that Kathleen Waggoner was “unavailable” as a defense witness, due to her exercise of her Fifth Amendment privilege. Rule 804(a) (1) follows the weight of authority in providing that the exercise of a claim of privilege satisfies the requirements of unavaila- = bility. See United States v. Allen, 409 F. 2d 611 (10th Cir. 1969); United States v. Milano, 443 F. 2d 1022 (10th Cir. 1971), cert. denied 404 U.S. 943 (1971), and Wharton, Criminal Evidence (12th Ed., 1955), § 483. The opinion of the Court of Appeals seems to find that Ms. Waggoner was not unavailable and states that petitioner raised the issue in an “extenuated and circuitous manner” which created only speculation. We believe that the statement by the witness’ attorney was sufficient, and there was no necessity to waste the Court’s time by the vain effort of actually putting her on the stand to claim her privilege. The Court of Appeals completely disregarded the fact, which is clear from the dis- cussions which took place both on and off the record in cham- bers (Tr. 218-228), that no one disputed the witness’ unavail- ability (Tr. 220). The various efforts by government counsel and the trial Court to avoid the use of her grand jury testimony were not couched in terms of unavailability, and the only time government counsel expressed an uncertainty as to unavailabil- ity, he did so on the untenable theory that she had been granted immunity (Tr. 221). Obviously the grant of immunity did not make her “available”, because she was under indictment when subpoenaed as a witness for this trial. Because Ms. Waggoner met the test of unavailability of Rule 804(a)(1), her grand jury testimony was then admissible under Rule 804(b)(1), which is a codification of the prior recorded testimony exception to the hearsay rule. The testimony was under oath, it related directly to the trial of this cause, and the government clearly had an opportunity to develop her testi- mony by direct, cross or redirect examination. The commentators and case law recognize that the testimony of a witness before a grand jury is in fact admissible when that witness is unavailable at the later trial. See Wharton, Criminal Evidence (12th Ed., 1955), §§ 470-471, and United States v. — Allison, 474 F. 2d 286, 288 (Sth Cir. 1973), cert. denied 419 U.S. 851 (1974). The due process clause of the Fifth Amend- ment also required the admission of relevant portions of the grand jury testimony. See Wright, Federal Practice and Pro- cedure, § 412, page 141, and Weinstein’s Evidence, para. 804 (b)(1) [05], page 804-68. As Mr. Justice Powell stated in Chambers v. Mississippi, 410 U.S. 284, 302 (1973): “Few rights are more fundamental than that of an accused to present witnesses in his own defense. [Cases cited.] . . In these circumstances, where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to de- feat the ends of justice.” The grand jury testimony of Kathleen Waggoner should have been made available to the defense under Brady v. Maryland, and should have been received in evidence undr Rule 804. Its suppression and exclusion violated petitioner’s rights to Fifth Amendment due process and Sixth Amendment process for wit- nesses in her behalf. We respectfully suggest that certiorari should be granted as to this Question. Vv Submissible case (legality of Nevada prostitution) The Court of Appeals rejected petitioner’s argument that the evidence was insufficient to support her convictions on any count. Although we feel strongly that there was no submissible case, we recognize that this Court has seldom reviewed such a decision, and we will not belabor the Question here. There is, however, one issue which we do assert in this petition—whether voluntary interstate travel solely to engage — | oe in lawful prostitution in Nevada is a violation of the Mann Act (18 U.S.C. §§ 2421 and 2422). This issue was presented to the Court of Appeals by petitioner but was not discussed by that Court, except in a brief rejection of the argument, without citation of authority, in the sections of the opinion pertaining to Pelton—see beginning of Constitutionality sec- tion and the second to last paragraph of the discussion of Count V. The evidence was quite clear that, within the provisions of 18 U.S.C. § 2422, there was no persuasion, inducement or enticement of Bray or Dawson in making the trips to Winne- mucca, Nevada. Bray testified that nobody forced or coerced her to go to Nevada (Tr. 123) and that she volunteered to go ther. (Tr. 165) because it was a good place to go (Tr. 168). Dawson testified that she wanted to go and was not persuaded or induced (Tr. 195). As to being enticed, she said that it was a matter of definition, and she went because of the potential for good money. It is obvious from their testimony that they were most anxious to go. Giving full credit to their testimony, the most that could be said is that petitioner loaned them some money, and it stretches the definition of persuasion or induce- ment or enticement, to the point of unconstitutional vagueness, to suggest that a loan of money would constitute sufficient evidence to prove these essential elements. But even if the testimony of Bray and Dawson is accepted without question, it is clear from the government’s case that they understood that they were going to Nevada to engage in the lawful profession of prostitution. The first thing that they did on arrival was to make an application for a permit with the local police, as required by local law (Tr. 115, 117, 118- 119, 145-146, 189-190, 201-202; see also Government’s Ex- hibits 2, 3 and 4). That they fully intended to comply with the local law is apparent from the fact that when Bray was unable to get her license, she immediately returned to St. Louis with- out engaging in any acts of prostitution (Tr. 118-119, 166). a. We have been unable to find any reported decision on this issue, but we believe that the constitutionality of the Mann Act is subject to serious question if it is to be applied to prohibit interstate travel to engage in lawful activities. Significantly, 18 U.S.C. § 1952, which covers the same general area as the Mann Act (although it has some additional elements, includ- ing the commission of an overt act after the travel), recognizes that the activities in the state to which the travel is directed must be in violation of the state law. And see Kent v. Dulles, 357 U.S. 116, 125-129 (1958), with reference to the right to travel. If as was said in Twitchell v. United States, 313 F. 2d 425, 428 (9th Cir. 1963), concerning the Mann Act, “federal courts must be on guard against attempts to convert what are essen- tially offenses against state laws into federal crimes via the con- spiracy route,” then a fortiori, that which is permitted by state law should not be the basis of a federal crime. See also the discussion in Mortensen v. United States, 322 U.S. 369, 377 (1944), as to the interstate transportation being only the means for facilitating “the commission of the illegal acts.” We submit that there was no intent on the part of any of the parties involved in the trips to Nevada, including petitioner if she was involved, to violate state or federal law. Specific in- tent is an essential element of a Mann Act offense (Lerma v. United States, 387 F. 2d 187, 188 (8th Cir. 1968), cert. de- nied 391 U.S. 907 (1968); Mortensen v. United States, 322 U.S. 369 (1944)), and the proof of the requisite mens rea was lacking in this case. Because of the unique issue presented herein which has not been decided by this Court and because of the effect of the de- cision herein on lawful state activities, we respectfully suggest that certiorari should be granted as to this Question. a oe Vi Adoption of related petition for certiorari Lloyd Pelton also appealed to the Court of Appeals from his conviction in the joint trial with petitioner. Each appellant filed separate briefs, but the appeals were heard together, and a joint opinion was written, although it considered the conten- tions of each separately. (See Appendix A.) Subsequently, Pelton filed a petition for rehearing in the Court of Appeals, which was denied on July 24, 1978. Petitioner does not know whether Pelton intends to file a petition for writ of certiorari, but if he does so, petitioner re- quests permission to adopt those portions of his petition which may be applicable to petitioner. CONCLUSION For these reasons, it is respectfully submitted that this peti- tion for a writ of certiorari should be granted. Respectfully submitted, IRL B. BARIS 2020 Railway Exchange Building 611 Olive Street St. Louis, Missouri 63101 (314) 231-1312 Attorney for Petitioner APPENDIX —_— APPENDIX A United States Court of Appeals for the Eighth Circuit No. 77-1682 United States of America, ) Appellee, Lloyd M. Pelton, Appeals from the United States District Court for the Eastern District of Missouri. Appellant. ) No. 77-1695 United States of Missouri, Appellee, Jacqueline Rich, Appellant. | Submitted: January 9, 1978 Filed: June 7, 1978 Before Gibson, Chief Judge, Ross and Webster,' Circuit Judges. 1 Prior to leaving this court to become Director of the Federal Bureau of Investigation, Judge Webster heard oral argument in this case, participated in the conference thereon, and concurred in the result. —_—. Gibson, Chief Judge. This case involves charged violations of the Mann Act arising out of certain interstate activities undertaken by a prostitution operation based in St. Louis, Missouri. In July 1977, the Gov- ernment returned an eight-count indictment against Jacqueline “Pat” Rich, Lloyd Pelton and Ann Frazier. The first four counts of the indictment related to travel by prostitutes between St. Louis, Missouri, and Chicago, Illinois; the second four counts related to travel between St. Louis, Missouri, and Winne- mucca, Nevada. In late September 1976, Fred Coughlin, then a sales repre- sentative for a boat company in the St. Louis area, asked Rich to provide prostitutes for a forthcoming boat show in Chicago. Rich agreed to let Coughlin take two call girls whom she em- ployed to Chicago to “work” the boat show. She then directed Kathleen Bray and Charlotte Anderson to drive to Chicago with Coughlin. She also arranged for the separate transportation to * Count I charged Rich and Frazier with conspiracy to knowingly transport women in interstate commerce for purposes of prostitution in violation of 18 U.S.C. § 2421. The overt acts offered in support of this conspiracy charge were. alleged to have occurred on Septem- ber 29 and 30, 1976, in connection with the transportation of three call girls to Chicago to “work” a boat show. Three of the overt acts alleged in Count I formed the basis of the substantive violations of 19 U.S.C. § 2421 with which Rich alone was charged in Counts II, III and IV. Count II charged Rich with a § 2421 violation with regard to Kathleen Waggoner, a/k/a “Monica”; Count III charged her with a similar violation with regard to Kathleen Bray, a/k/a “Baby”, and Count IV related to the interstate transportation of Charlotte Anderson, a/k/a “Frosty”, in violation of § 2421. Count V charged Rich and Pelton with conspiracy to knowingly transport women in interstate commerce for purposes of prostitution in violation of 18 U.S.C. § 2421. The overt acts offered in support of this conspiracy charge related to the transportation of three women, Shirley Dawson, Kathleen Bray and Charlotte Anderson, to Winne- mucca, Nevada, for purposes of prostitution. Count VI charged Rich and Pelton with violating 18 U.S.C. § 2422 by persuading, in- ducing and enticing Shirley Dawson to go to Winnemucca to act as a prostitute and by causing her to be transported there as a passenger upon the line and route of a common carrier in interstate commerce. Counts VII and VIII charged Rich and Pelton with similar violations with regard to Kathleen Bray and Charlotte Anderson, respectively. — Chicago of Kathleen Waggoner, another call girl in her employ. All three women travelled to Chicago as arranged by Rich and worked as prostitutes at a boat show; while in Chicago they were managed pursuant to arrangements made by Rich. Bray be- came ill and returned to St. Louis earlier than the others, who returned at the conclusion of the boat show. Upon Bray’s return to St. Louis, plans were made for sending her and another call girl known as Georgia to work at Penny’s Cozy Corner, a house of prostitution in Winnemucca, Nevada. According to Bray, she was present at Rich’s apartment when Rich and Pelton made arrangements for this trip. Pelton called an acquaintance of his at Penny’s Cozy Corner and arranged for Bray’s stay there. It was agreed that he would receive $200 per girl for his placement services. Rich gave Bray $200 to buy clothes and $250 to buy an airplane ticket to Nevada and to pay for a doctor’s examination and the accessories that she would need at Penny’s Cozy Corner. Rich was to receive a percentage of the money which Bray earned in Nevada. Bray flew to Nevada and attempted to become licensed as a prostitute. Her application for a license was denied because she was under the age of eighteen, and she returned to St. Louis. Following Bray’s return, Pelton and Rich made plans and arrangements, similar to those which they had made for her Nevada trip, for sending Shirley Dawson and Charlotte Anderson to Winnemucca. Pur- suant to these arrangements, Dawson and Anderson travelled to Winnemucca in October 1976, and began to work at Penny’s Cozy Corner. They quickly discovered that employment in Nevada was not as lucrative as they had imagined it would be and they returned to St. Louis after only a short tenure in Winnemucca. Rich and Pelton were tried iointly to a jury on the charges arising from the aforesaid events.* Rich, who was charged in * Frazier indicated a willingness to dispose of her case in Chicago under the provisions of Fed. R. Crim. P. 20; she was not tried with Rich and Pelton. ys i all eight counts, was found guilty on Counts I-VII and acquitted on Count VIII (Nevada trip of Anderson). She received an ag- gregate sentence of ten years’ imprisonment.* Pelton, who was charged only in Counts V-VIII, was found guilty on Counts V (conspiracy involving trips to Nevada) and VII (Nevada trip of Bray) and acquitted on Counts VI and VIII (Nevada trips of Dawson and Anderson respectively). He received two concur- rent sentences of three years’ imprisonment. Both defendants appeal. We first consider appellant Rich’s contentions. Continuance Rich was arrested on July 11, 1977, and arraigned on July 18. At her arraignment, the District Court® set an August 1 trial date, despite protestations by Rich’s counsel that this date would be inconvenient to him. On July 27, Pelton, who had also been given an August 1 trial date when he was ar- raigned on July 11, filed a motion for a continuance and the Government filed a written response requesting a denial of the motion. On July 28, Rich moved for a continuance. When the case was called for trial on the morning of August 1, the District Court considered defendants’ continuance mo- tions. In support of their motions, both counsel asserted personal exigencies that had curtailed their pretrial preparation. Government counsel expressed opposition to the granting of a continuance, primarily because of his fear that delay of the trial could lead to the unavailability of several important Govern- * Rich was sentenced to a five-year term of imprisonment on each of her seven convictions. She received concurrent terms of imprison- ment on Counts I-IV. Her sentences on Counts V-VII run concur- rently with one another, but consecutively to the sentences in Counts I-IV. ®° The Honorable H. Kenneth Wangelin, United States District Judge for the Eastern District of Missouri. TOM Le i ed. rE a | —_ ment witnesses who were then in protective custody. The District Court denied defendants’ continuance motions, and on the afternoon of August 1, voir dire examination of potential jurors was conducted, a jury was impanelled and trial was com- menced. Rich contends that the trial court’s refusal to grant a continuance was erroneous because it precluded her attorney from making adequate preparation and investigation for her defense. We note initially that review of the trial transcript shows that Rich was vigorously defended at trial and belies the sug- gestion that counsel had less than adequate time to prepare for trial. The twenty-day period from time of arrest to trial appears adequate, particularly in view of the strictures of the Speedy Trial Act. Moreover, a motion for continuance is addressed to the sound discretion of the trial court, and a refusal to grant a continuance will be set aside only upon a showing of a clear abuse of discretion. United States v. Jackson, 549 F.2d 517, 528 (8th Cir.), cert denied, 430 U.S. 985 (1977): United States v. Webb, 533 F.2d 391, 395 (8th Cir. 1976). Counsel for Rich supported his motion for continuance with the specula- tion that there might be witnesses in Chicago and Nevada whom he had been unable to interview prior to trial because of the personal time strictures of his life. In opposing a continuance, the Government presented specific and cogent reasons which went to the very viability of the prosecution. On these facts, we are unable to say that the trial court abused its discretion in refusing to grant a continuance. Discovery of tape recordings in the Government's possession Discovery of evidence in criminal cases is governed by the pro- visions of Rule 16 of the Federal Rules of Criminal Procedure. Prior to trial, Rich made a request under Rule 16 for tape re- cordings of her voice which were in the Government's possession. Ordinarily, when a defendant requests inspection of his or her — statements which are in the possession, custody or control of the Government, the Government has a duty of disclosure under Rule 16(a)(1)(A).® In the instant case, the Government declined to disclose to Rich the tape recordings of her voice which were in its possession. Motivated by concern for the safety of persons cooperating on the case, whose identity would be revealed to Rich if she heard the tapes, the Government requested a pro- tective order under Rule 16(d)(1), which provides: Upon a sufficient showing the court may at any time order that the discovery or inspection be denied, restricted, or deferred, or make such other order as is appropriate. Upon motion by a party, the court may permit the party to make such showing, in whole or in part, in the form of a written statement to be inspected by the judge alone. If the court enters an order granting relief following such an ex parte showing, the entire text of the party’s statement shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal. In support of its request, the Government made an ex parte presentation to the court. Upon listening to the tapes, the trial judge concluded that they contained nothing exculpatory of Rich. He then made the tapes a part of the record and issued a Rule 16(d)(1) order sealing them. The tapes were not used at trial. The Government also assures us that it made no use at trial of any evidence derived from the tapes. Rich contends, nonetheless, that the court erred in denying her access to the recordings of her voice. Discovery matters are committed to the sound discretion of the district court and an error in administering the discovery rules is reversible only ® Rule 16(a)(1)(A) provides in pertinent part: Upon request of a defendant the government shall permit the defendant to inspect and copy or photograph: any relevant writ- ten or recorded statements made by the defendant, or copies thereof, within the possession, custody or control of the gov- erment * * *. ens eh i aT on a showing that the error was prejudicial to the substantial rights of the defendant. United States v. Crow Dog, 532 F.2d 1182, 1189 (8th Cir. 1976), cert. denied, 430 U.S. 929 (1977); United States v. Cole, 453 F.2d 902, 904-05 (8th Cir.), cert. denied, 406 U.S. 922 (1972). Given the trial court’s find- ing that the tapes contained no exculpatory evidence and the fact that the Government made no direct or derivative use of the tapes, we find it difficult to understand how Rich could have been prejudiced by being denied access to the tapes. Moreover, a review of the record reveals that the protective order at issue here was entered in conformance with Rule 16(d)(1), which specifically authorizes ex parte proceedings. The purpose of the order sought here was to protect the identity of persons cooperat- ing on the case. An adversary proceeding would have defeated the very purpose of the requested order by revealing their identi- ties to Rich. A review of the record, which includes the sealed tapes at issue here, convinces us that an ex parte proceeding was ap- propriate on the facts of this case and that the Government made a sufficient showing for a protective order under Rule 16(d) (1). The District Court acted well within its discretion and in full compliance with Rule 16(d)(1) in denying Rich access to the tapes in the Government’s possession. Furthermore, Rich has made no showing that this order prejudiced her substantial rights. Her contention regarding the Rule 16(d)(1) order is without merit. Pretrial discovery of Government witness: Prior to trial, defendant Rich moved to compel the Govern- ment “to make witnesses and statements” available. Etta Wil- liams, a/k/a “Agnes Brittain,” an unindicted co-conspirator in Count I, was the only prospective Government witness identi- fied in the motion. The District Court denied the motion and — = po refused to order pretrial discovery of the Government’s wit- nesses.’ Rich contends that the trial court erred in refusing to order pretrial discovery of the Government’s witnesses. She also suggests that the Government interfered with her investi- gation of the case by concealing prospective witnesses from her. Rich’s attack on the District Court’s refusal to order pretrial discovery of witnesses is wholly lacking in merit. Discovery of prospective witnesses is not required under Fed. R. Crim. P. 16(a), United States v. Krohn, 558 F.2d 390, 394 (8th Cir.), cert. denied, — U.S. —, 98 S. Ct. 207 (1977); United States v. Rogers, 549 F.2d 490, 494 (8th Cir. 1976), cert. denied, 431 U.S. 918 (1977), and we can find no abuse of discretion in the trial court’s refusal to order this pretrial discovery. More- over, there is no support in the record for the suggestion that the Government impeded Rich in the investigation of her case by denying her access to prospective witnesses Charlotte An- derson, Ann Frazier, Kathleen Waggoner and Etta Williams. Rich employed Charlotte Anderson as a call girl. She makes no allegation whatsoever of contract between Anderson and the Government prior to trial. The Government denies having in- terviewed Anderson or even having known where she could be found; it did not call Anderson as a witness. Clearly there is no support for an inference of governmental concealment of Anderson. During the period in question, Ann Frazier and Kathleen Waggoner, neither of whom was called as a witness by the Government at Rich’s trial, had been charged with crimes by the Government. Rich presents this sole fact as the basis for her charge of concealment by the Government. The facts of this case simply do not support an equation of indictment with concealment and we decline to infer such an equation. * In denying defendants’ motion for pretrial discovery of witnesses, the district judge made it clear that his ruling had no bearing whatso- ever on the Government’s duty under 18 U.S.C. § 3500 to provide defendants with statements of witnesses after they had testified on direct examination at trial. It is clear that the Government complied fully with § 3500. rete? ee 0s on Etta Williams was the Government's initial source of in- formation in this case. Shortly after her involvement in the investigation of the case began, her apartment was fire-bombed. This event, plus another incident which suggested that her safety was in continuing jeopardy, resulted in her being placed in the protective custody of the Government and being given a new identity. Understandably, she did not wish to speak to defendants prior to trial. Rich has not shown that this reluc- tance on Williams’ part was anything other than a matter of her own personal choice. The fact that the Government had undertaken to protect her does not transform this choice into governmental concealment. Moreover, Rich’s claim of preju- dice because of her inability to interview Williams prior to trial is undercut by events which transpired during trial. Williams was present on the trial dates and was made available to the defendants after the Government determined that it would not use her as a witness. Defendants interviewed Williams at that time and decided not to call her as a witness. We conclude that Rich has failed to establish that the Government precluded her from interviewing a witness willing to talk with her prior to trial or that her lack of pretrial contact with Williams was prejudicial to her defense. Grand jury testimony of Kathleen Waggoner Count II of the indictment underlying the instant case charged Rich with a § 2421 violation with regard to the trans- portation of Kathleen Waggoner to Chicago. Waggoner’s trip to Chicago was also one of the overt acts alleged in support of the conspiracy charged in Count I. On June 1, 1977, pur- suant to a grant of use immunity, Waggoner testified before a grand jury investigating possible violations by Rich of 18 U.S.C. §§ 1503, 1952 and 2421. During her appearance be- fore the grand jury, Waggoner denied that Rich had sent her to Chicago in 1976 to work as a prostitute at the boat show — A-10 — and also denied that Rich had ever set her up on prostitution dates. As a consequence of this testimony, Waggoner was in- dicted on two counts of perjury before the grand jury in vio- lation of 18 U.S.C. § 1623. This indictment, which was handed down on June 25, 1977, set forth verbatim those portions of the grand jury transcript in which Waggoner denied that Rich had sent her to Chicago or set her up on prostitution dates. Waggoner was convicted on both counts of perjury at a trial which took place after the trial of Rich and Pelton. In a pre-trial motion, Rich sought “the testimony of all wit- nesses before any grand jury which investigated this matter which is favorable to this defendant.” In its answer to Rich’s motion, the Government stated that it would provide grand jury transcripts only insofar as it was required to do so by 18 U.S.C. § 3500. The trial court sustained the Government’s position and denied Rich’s motion. This ruling was consonant with the well-established rule in this circuit that grand jury testimony is generally not discoverable on pretrial motion. United States v. Harflinger, 436 F.2d 928, 935 (8th Cir. 1970), cert. denied, 402 U.S. 973 (1971). Waggoner was not called as a witness at Rich’s trial. If the Government had called Waggoner and if she had testified, Rich would have been entitled to a transcript of her grand jury testimony under 18 U.S.C. § 3500. Rich herself did not attempt to call Waggoner as a witness. Rather, she assumed that Waggoner would refuse to testify and sought, on that basis, to introduce a transcript of Waggoner’s grand jury tes- timony into evidence. On the morning of the third day of trial, counsel for Rich made the following in-chambers presentation to the trial court: I have caused a subpoena to be served upon Kathleen Waggoner to testify. It is my understanding that she is under charges at the present time in this Court or in ome See i — A-l1l — another Division and her attorney has indicated that he will advise her to invoke her privilege under the Fifth Amendment and refuse to testify. On that basis, Your Honor, I would request an opportunity to utilize her Grand Jury testimony and introduce portions of the Grand Jury testimony which would be relevant and request that the Government furnish me with a copy of her Grand Jury testimony. I believe that it would be admissible pur- suant to Rule 804 of the Federal Rules of Evidence. The Government objected to the use of Waggoner’s grand jury testimony. The court and both parties then discussed the general nature of Waggoner’s testimony before the grand jury, the use immunity under which she had testified and the per- jury indictment then pending against her. The district judge ultimately refused to allow Rich to introduce the transcript of Waggoner’s grand jury testimony into evidence. Contempo- raneously, however, he ruled that Rich could read Waggoner’s indictment to the jury. Although this indictment contained testimony in which Waggoner denied that Rich had sent her to Chicago or had set her up on prostitution dates, counsel for Rich chose not to introduce it into evidence. Rich now contends that Waggoner’s grand jury testimony was admissible under Fed. R. Evid. 804(a)(1) and that the trial court erred in refusing to allow her to introduce the relevant portions of this transcript at trial. Rule 804 sets forth those in- stances in which the hearsay statements of unavailable de- clarants may be admitted into evidence at trial. Rich relies upon § (a)(1) of Rule 804, which provides that a declarant is “un- available” if he or she “is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement.” The unavailability requirement of Rule 804 places the burden of producing an unavailable declarant upon the proponent of the evidence. United States v. Amaya, 533 F.2d 188, 191 (Sth — A-12 — Cir. 1976), cert. denied, 429 U.S. 1101 (1977); see generally 11 MOORE’S FEDERAL PRACTICE § 804.02, at VIII-239- 40 (2d ed. 1976). Rich, the proponent here, accordingly had the burden of establishing that Waggoner would invoke her fifth amendment privilege and thus be unavailable to testify. Our review of the record convinces us that Rich utterly failed to carry this burden. Counsel for Rich made no effort to pro- duce Waggoner, whom he had subpoenaed, and to demonstrate firsthand and in the court’s presence that she did intend to re- fuse to testify in reliance on her fifth amendment privilege against self-incrimination. Rather, he chose to raise the issue of her privilege in an extenuated and circuitous manner which gave the court nothing more than speculative basis for deter- mining whether she was available. Rich's proof that Waggoner was unavailable under Rule 804(a)(1) was that Waggoner’s attorney had said that he was going to advise Waggoner not to testify. There was no indication that Waggoner had in fact been so advised or that, if she had been, she had decided to exercise her privilege. We consider Rich’s suggestion, that Waggoner might in the future be advised of and then choose to exercise her fifth amendment privilege, to be a wholly inade- quate showing of unavailability under Rule 804(a)(1). The trial court did not err in refusing, on this speculative basis, to allow Rich to introduce into evidence the transcript of Wag- goner’s testimony before the grand jury.* * Rich also argues that the Government breached its duty of dis- closure under Brady v. Maryland, 373 U.S. 83 (1963), by failing to release Waggoner’s grand jury testimony. Under Brady, govern- mental suppression at trial of “evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, supra at 87. We can find no due process infringement in the instant case. Unlike Brady, where the evidence suppressed by the prosecution did not come to the defendant’s notice until after he had been tried, convicted and sen- tenced and his conviction had been affirmed, defendant Rich clearly had notice prior to trial of the evidence at issue here and in fact had access to the crucial aspects of Waggoner’s grand jury testimony — A-13 — Sufficiency of the evidence Rich contends that the evidence was insufficient to support her convictions. In considering this contention, we must view the evidence in the light most favorable to the Government. Glasser v. United States, 315 U.S. 60, 80 (1942). We have done so and we conclude that the evidence against Rich is legally sufficient to support her convictions. Indeed, the plethora of evidence of Rich’s participation in the transportation of women to Chicago and Nevada is such that we cannot find a close question of e*‘dentiary sufficiency on any of the seven counts on which she was convicted. Under these circumstances we choose not to catalogue the evidence adduced against Rich. Suffice it to say that the evidence, when viewed in the light most favorable to the Government, is more than sufficient to support the jury’s verdicts of guilty on Counts I-VII. We will now address defendant Pelton’s contentions. Constitutionality of 18 U.S.C. § 2421 Pelton argues that since prostitution is legal in Winnemucca, Nevada, the destination of the female whose interstate trans- portation underlines his convictions, the Mann Act uncon- stitutionally violates and derogates “the rights of females to seek legal employment as guaranteed by the constitution of this through the Waggoner indictment. She chose not to introduce the indictment with this verbatim testimony into evidence. We would ordinarily be hesitant to construe a tactical decision of this nature as an indicator of the materiality of evidence. Rich’s subsequent treat- ment of Waggoner’s grand jury testimony, however, supports the initial impression that its worth to Rich’s defense was nugatory. Al- though Rich has had access to Waggoner’s grand jury testimony since Waggoner’s trial, when it became a matter of public record, she has failed to specify any favorable evidence therein which she did not already have access to by way of Waggoner’s indictment. On these facts, we reject Rich’s claim that non-access at trial to Wag- goner’s grand jury testimony constituted a violation of her right to due process. — country.” As we have previously noted, “[i]t is rather late in the history of the Mann Act to still be contending for its un- constitutionality. The Act has been consistently upheld * * *.” (Citations omitted.) United States v. Garrett, 521 F.2d 444, 446 (8th Cir. 1975). Defendant Pelton is not a female whose ability to seek legal employment was constrained by the Mann Act and he consequently lacks standing to attack the statute on this basis. See United States v. Garrett, supra at 446. Because of his lack of standing, we pretermit analysis of the substance of his constitutional challenge, although we cannot help but note that its strength appears to lie in its ingenuity rather than in any degree of legal cogency. It is difficult to conceive of prostitution as being constitutionally guaranteed and protected. Severance Pelton filed a pretrial motion for severance which was denied by the District Court on July 27. At a pretrial proceeding on the morning of August 1, counsel for Pelton brought the sever- ance issue back to the District Court’s attention in a somewhat roundabout way, expressing the opinion that Pelton could not receive a fair trial because most of the evidence in the case was unrelated to Pelton. He made no formal motion for a severance at this time, however. Moreover, it is undisputed that Pelton did not renew the motion for severance at the close of the Govern- ment’s evidence or at the conclusion of all the evidence. If not so renewed, the motion is “deemed waived.” United States v. Porter, 441 F.2d 1204, 1212 (8th Cir.), cert. denied, 404 U.S. 911 (1971). Accordingly, we hold that Pelton has waived his right to assert the severance issue. Sufficiency of the evidence Pelton was charged in only those four counts of the indict- ment related to the Nevada trips. He was acquitted on Counts erent —* | po VI and VIII, which charged him with inducing the transporta- tion to Nevada of Shirley Dawson and Charlotte Anderson. He was convicted on Count V, the conspiracy charge stemming from the Nevada trips, and on Count VII, the charge involving the inducement of Kathleen Bray to travel to Nevada. Pelton con- tends that his convictions on Counts V and VII are not supported by sufficient evidence. In analyzing this contention, our point of departure must be those well-worn principles which require us to view the evi- dence in the light most favorable to the Government, Glasser v. United States, 315 U.S. 60, 80 (1942), and to accept as established all reasonable inferences from the evidence that tend to support the jury’s verdict. United States v. Overshon, 494 F.2d 894, 896 (8th Cir.), cert. denied, 419 U.S. 853 (1974). We must, moreover, be guided by the general rule that “it is not necessary that the evidence exclude every reason- able hypothesis except that of guilt but simply that it be suffi- cient to convince the jury beyond a reasonable doubt that the defendant is guilty.” United States v. Shahane, 517 F.2d 1173, 1177 (8th Cir.), cert. denied, 423 U.S. 893 (1975). This stand- ard also applies in cases where the conviction rests on circum- stantial evidence, see United States v. Joyner, 539 F.2d 1162, 1165 (8th Cir.), cert. denied, 429 U.S. 983 (1976); United States v. Shahane, supra at 1177, since circumstantial evidence is intrinsically as probative as direct evidence. Holland v. United States, 348 U.S. 121, 140 (1954). With these familiar prin- ciples in mind, we address Pelton’s attack upon the sufficiency of the evidence supporting his convictions. Count V Count V charged Pelton and Rich with a conspiracy to “knowingly transport in interstate commerce a woman or girl for the purpose of prostitution or debauchery and other im- — A-16 — moral purposes [a violation of Title 18, U.S.C. § 2421].” The indictment posited that in furtherance of this conspiracy Rich and Pelton agreed to send women and girls from St. Louis, Mis- ' souri, to Winnemucca, Nevada, for purposes of prostitution on various dates in October 1976, and that Rich gave Shirley Daw- son, Kathleen Bray and Charlotte Anderson money to purchase tickets to Reno, Nevada. Pelton contends generally that the evidence supporting his conspiracy conviction does not prove the existence of an un- lawful agreement between him and Rich. More specifically, he argues that any agreement that may have existed was lawful because prostitution is legal in Nevada and/or because the women in question travelled to Nevada on their own volition. “The offense of conspiracy consists of an agreement between the conspirators to commit an offense, attended by an act of one or more of the conspirators, to effect the object of the con- spiracy.” United States v. Skillman, 442 F.2d 542, 547 (8th Cir.), cert. denied, 404 U.S. 833 (1971). The agreement need not be express or formal and it may be established by circum- stantial evidence. United States v. Hutchinson, 488 F.2d 484, 490 (9th Cir. 1973), cert. denied, 417 U.S. 915 (1974). In- deed, this court has long recognized that since conspiracy is rarely susceptible of proof by direct evidence, it may properly be adduced from the conduct of the parties and the attending circumstances. Rizzo v. United States, 304 F.2d 810, 825 (8th Cir.), cert. denied, 371 U.S. 890 (1962); Goode v. United States, 58 F.2d 105, 107 (8th Cir. 1932). The conduct of the parties and the attending circumstances revealed by the record here support the existence of an agree- ment by Rich and Pelton to transport women to Nevada for prostitution purposes. Bray, one of the women so transported, testified that she was present at Rich’s apartment in St. Louis when Rich and Pelton decided to send her and another call es ce net ———— — A-17 — girl named Georgia to Penny’s Cozy Corner, a house of pros- titution in Winnemucca, Nevada. In Bray’s presence, Pelton made a telephone call to Penny’s and arranged for her to work there. Pelton and Rich then gave Bray instructions on what to do when she reached Winnemucca. She was told to register as a prostitute, which would require lying about her age since she was not yet eighteen years old, to get a doctor’s examina- tion and then to go to Penny’s. Bray, Rich and Pelton agreed that Bray would give 40% of her earnings to Penny’s and split the remaining 60% with Rich. Bray also agreed to pay Pelton $200 for setting her up at Penny's. To finance the trip, Rich lent Bray $200 for clothes and $250 for airfare, a license and the accessories which would be necessary at Penny’s. Bray subsequently flew from St. Louis to Nevada in accordance with the plans and arrangements formulated by Rich and Pelton and attempted to become a prostitute. Upon being denied a license in Winnemucca because she was under age, she returned to St. Louis. We believe that the evidence in this case was suffi- cient to have convinced the jury beyond a reasonable doubt that Pelton was guilty of participating in a conspiracy with Rich knowingly to transport a woman to Nevada in interstate com- merce for purposes of prostitution. We must reject as unavailing Pelton’s attempt to legitimize his agreement with Rich by arguing that prostitution is legal in Nevada and that Bray had a desire to travel to Nevada and to’ work there as a prostitute which pre-existed his participation in the plans. Section 2421 flatly prohibits transportation of women in interstate commerce “for the purpose of prostitution or de- bauchery and other immoral purposes”; its prohibition is not keyed to the legality or illegality of prostitution under the law of the state where the transportation ends. When Rich and Pelton agreed to send Bray to Nevada to work as a prostitute, they made an agreement to violate § 2421, and the status of prostitution under Nevada law has no bearing on the illegality of this agreement under the Mann Act. — A-18 — Equally lacking in legal merit is Pelton’s suggestion that any agreement he may have had with Rich was legal because Bray was predisposed and willing to go to Nevada to work as a prosti- tute. Whether or not Bray was so predisposed and willing is immaterial to the illegality of Pelton’s agreement with Rich to violate § 2421, for consent is neither a defense to a violation charged under § 2421, Gebardi v. United States, 287 U.S. 112, 119 (1932); Hattaway v. United States, 399 F.2d 431, 433 (Sth Cir. 1968); Wiley v. United States, 257 F.2d 900, 905 (8th Cir. 1958), nor to a violation charged under § 2422. Blumenfield v. United States, 284 F.2d 46, 53 (8th Cir.), cert. denied, 365 U.S. 812 (1960). Pelton conspired with Rich to transport Bray in interstate commerce to Nevada for purposes of prostitution in violation of § 2421. Whatever Bray’s degree of willingness to travel may have been, it does not vitiate the il- legality of the agreement to transport her for purposes of prosti- tution. Count VII Count VII charged Pelton and Rich with violating 18 U.S.C. § 2422 by persuading, inducing and enticing Kathleen Bray to gO in interstate commerce to Nevada with the intent on their part that she engage in prostitution there, and with thereby knowingly causing her to be transported there as a passenger upon the line and route of a common carrier in interstate com- merce. In challenging the sufficiency of the evidence supporting his conviction on this count, Pelton does not dispute that Bray was transported to Nevada for purposes of prostitution. His attack on the sufficiency of the evidence pertains to the issue of inducement. He seems to contend that because there was evi- dence that Bray was willing to go to Nevada to work as a prosti- tute, the record will not support a finding of inducement on his part. arenes! omens ats — —— pn a ee i ae talieine — so We are unable to agree. Even if we assume that Bray was willing to travel to Nevada to be a prostitute, the fact remains that by setting her up at Penny’s Cozy Corner, Pelton helped provide the inducement which caused her to make the trip.° It is the inducement of transportation which is prohibited under § 2422, not the actual provision of that transportation. Nunnally v. United States, 291 F.2d 205, 206-07, (Sth Cir. 1961). When an Offer to travel interstate for purposes of prostitution elicits a positive response from a woman to whom it is made, it consti- tutes a requisite inducement under the statute. Harms v. United States, 272 F.2d 478, 481 (4th Cir. 1959), cert. denied, 361 U.S. 961 (1960). The evidence here shows that Pelton made an inducement sufficient to persuade Bray to travel to Nevada. We believe that Pelton’s conviction under § 2422 with regard to Bray’s inducement is supported by sufficient evidence. Affirmed. A true copy. Attest: Clerk, U. S. Court of Appeals, Eighth Circuit. * Indeed, the fact that until Pelton “placed” her at Penny’s, Bray may have harbored an unfulfilled wish to go to Nevada to be a pros- titute emphasizes rather than undercuts the causal relationship be- tween Pelton’s inducement and Bray’s trip. — A-20 — APPENDIX B United States Court of Appeals for the Eighth Circuit No. 77-1695 September Term, 1977 United States of America, Appellee, vs. Jacqueline Rich, Appellant. JUDGMENT APPEAL FROM the United States District Court for the Eastern District of Missouri. THIS CAUSE came on to be heard on the original designated record of the United States District Court for the Eastern Dis- trict of Missouri and was argued by counsel. ON CONSIDERATION WHEREOF, it is now here ordered and adjudged by this Court, that the judgment and sentence of the said District Court, in this cause, be, and the same is hereby, affirmed. June 7, 1978 — A-21 — APPENDIX C United States Court of Appeals for the Eighth Circuit 77-1695 September Term, 1977 United States of America, Appellee, | Appeal from the i VS. United States District Court for the Eastern Jacqueline Rich, District of Missouri. Appellant. The Court having considered petition for rehearing en banc filed by counsel for appellant and, being fully advised in the premises, it is ordered that the petition for rehearing en banc be, and it is hereby, denied. Considering the petition for rehearing en banc as a petition for rehearing, it is ordered that the petition for rehearing also be, and it is hereby, denied. July 3, 1978 — A-22 — APPENDIX D Before the United States Grand Jury Eastern District of Missouri Eastern Division In re: Grand Jury Investigation No. | Transcript of Testimony of re ver reer Pre re Pee ere 2 June 1, 1977 Appearance: David M. Rosen, Esq., Assistant United States At- torney, Department of Justice, United States Court & Custom House, 1114 Market Street, St. Louis, Missouri 63101 KATHLEEN WAGNER being first duly sworn, testified as follows: By Mr. Rosen: Q. Will you state your name for the Grand Jury? A. Kathleen Leona Wagner. * * * * * * * Q. Do you know a person named Pat Rich? A. Yes, I do. Q. And how do you know her? A. I met Pat through Agnes Britton. The Foreman: Pardon me, I don’t think many of the jurors can hear you. A. I had met Pat Rich through Agnes Britton. om Q. How did you meet Agnes Britton, then? A. I met her through a man by the name of Jim, I don’t re- member his last name. Q. Now when you met Agnes, were you working for Agnes at any time? A. Yes. Q. O. K., and what services did you perform for Agnes? A. Prostitution. Q. Now approximately when did you meet Agnes? I realize you probably don’t have an exact date. A. No, I don’t. O. K., was it in 1976? It was last year. O. K., ’seventy-six; was it in winter, spring, fall, summer? > OoP”O In August, I think it was. Q. So in approximately August of 76 you would have met Agnes? A. Yes. Q. Now how long from the time you met Agnes was it until you met Pat Rich? A. Two months; I was with Agnes for two months, and then she had introduced me to Pat. Q. So this was around October, then, of ’76? A. Yes. Q. Now for what purpose did Agnes introduce you to Pat Rich? A. I had went down and bought a car from Pat’s car lot. Q. This is Lucky Autos? A. Yes. —s Q. And was that the only reason for your meeting Pat? A. Yes. * * * * a7 * * Q. Did you see Pat at least once a day before you moved in? A. Would you repeat that? Q. Before you moved into Pat’s apartment, did you go there at least once a day? A. At least, yes. Q. How long would each visit be, approximately? A. Not very long. Q. Would you be there at any particular time, always morn- ing, always afternoon, always night, or was it varied? A. It was different times. * * * * * a * Q. In September or October of last year, did you go to Chi- cago? A. Yes, 1 did. — Who did you go with? Agnes Britton. What was your purpose in going to Chicago? Prostitution. . Where did you stay in Chicago? Well, we stayed in the Drake Hotel, and we stayed at one gnes’s girl friends. >>O>rPOPrO of What is her name? I don’t remember, I really don’t. Ann Frazer? That don’t ring a bell. And does this girl friend live in Chicago? I don’t know that either, I had never been up there Agnes had took me. rFOPO PO — A-25 — Q. Who else was up in Chicago with you? A. There was Agnes, and myself, and that’s—me and her, and she tried to get a couple of other girls to work up there, another girl by the name of Marilyn or Madeline, I don’t really remember, she introduced me to so many people. Q. And you didn’t meet any other of Pat's working girls in Chicago—or Etta’s working girls, in Chicago—prostitutes? A. No, no one other than just Madeline. Q. Did you stay with anyone in particular, male, in Chicago? A. No. Q. What exactly were you doing up in Chicago, no prostitu- tion; for any particular event? A. There was—Agnes had told me something about a show boat, and she told me I could make some money up there, so I went up there; she took me. You didn’t meet anybody else? None other than Agnes’s dates that she had up there. O. K.; so you met some of Agnes’s dates? Yes, I did. Who are they? I don’t know; I don’t remember their names. Do you remember what business they worked for? No. And you don’t remember an argument over anyone up OPFOPO PFO PO there? A. No; not right offhand I don’t. * * * * * * * Q. Let’s start again with the Chicago trip. Who was it that set up the Chicago trip? A. Agnes Britton. — A-26 — Q. To you knowledge, did Pat Rich have anything at all to do with your going to Chicago for the boat show in September or October of 1976? A. None that I am aware of. Q. Did anyone ever mention this, Pat Rich’s participation? A. No. Q. How did you get to Chicago? A. Agnes drove me up there and drove me back, drove me on up there and drove me back. Q. O. K., she drove you up the first time, and then she drove you back to St. Louis? A. Yes, she did. Why did she take you back to St. Louis? She told me there was nothing else up there for me. You went back up to Chicago again? Yes. Was that like a day later? It was the same night. rFOP OPO * « * * oe * * Q. O. K., why did you go back to Chicago the second time that evening? A. Because Agnes told me that she was going to try to start her own prostitution house up in Chicago, and Q. And you were going to be one of her starting girls? A. Yes. Q. And you went up to Chicago with her? A. Yes, I did. Q. Did you again check into the Drake, or stay with this friend? A. We stayed with her friend, or who she said was her friend, I don’t know. — a — < o Q. At any point during your stay in Chicago for this particu- lar convention, did you engage in prostitution activities? A. Yes, I did. Q. Were these activities with people associated with the boat show? > Yes, they were. You received compensation—money? Repeat that again. You got money for the acts of prostitution, correct? Yes, I did. What did you do with the money? Gave it to Agnes. What did Agnes do with the money? I have no idea. rPOPFOPFO PO Q. What was your split of the money, or were you getting a straight fee? A. I wasn’t really getting anything out of it. Q. You were working for free? A. Yes, I mean it seemed like that to me, because Agnes was taking everything I was getting. Q. You didn’t get any money at all? A. No. Q. Vow while you were in Chicago for the boat show, the same time frame, who else in the world of prostitution did you meet; in other words, | am not talking about tricks that you picked up, I am not talking about social acquaintances, | am talking about what other prostitutes or people associated with prostitutes, did you meet up there? A. I don’t remember if 1 met anybody else up there or not. Q. O.-K., you met Agnes? A. Yes. — A-28 — You met Agnes’s friend? Yes. You met a girl named Marilyn? Yes. That's it? That's all. Nobody else? Nobody else that 1 can remember, no. Nobody else? That I can remember. rFOPOPOP OPO Q. Do you recall an argument over one of the tricks, one of the men up there, between you and other girls, or did you ac- tually see such an argument? A. No, I didn’t see or hear of anything of that sort. Q. You did not associate with any other working girls up there, aside from Agnes and her friend and Marilyn? A. Not to my knowledge, at all. * * * * * * * Q. Did you know any of the other girls who worked for Pat Rich as prostitutes? A. There was one girl that I can recall, by the name of Kathy Bray, I think she lives over in Illinois, I am not for sure. Q. How did you meet her? A. I met her over at Pat's, she introduced herself to me, I walked in and she was there; she started talking. Q. That's the only other girl you have met at Pat’s who works as a prostitute for Pat? A. That’s the only one. Q. Have you ever met any other girls at Pat's? — A-29 — A. No, because every time I go in there she is the only one there. Q. In other words, every time you have gone into her house except for once when you saw Kathy Bray, there have been no girls there? A. Right. Q. None of them working? A. No. * * * * * * * Q. Have you ever gone to the state of Nevada? Las Vegas, Reno, Winnemucca? A. No. Q. Have you ever gone to the state of Nevada for purposes of prostitution? A. Huh-uh. Q. Have you ever returned from the state of Nevada to St. Louis for purposes of prostitution? A. No, that I can remember. * * * * * * * --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1463%3A1. Public record. Not legal advice.