Petition — LeCompte v. United States

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Supreme Court, U.&

FILED

DEC 12 1979

MICHARL RBBAK, JR., CLERR

TO THE

SUPREME COURT

OF THE

UNITED STATES

No. e987 912 4q

Edward Raymond LeCompte,

Petitioner

vs.

United States of America

Respondent

On Petition For Writ Of Certiorari

A. Cecil Palmour

Cook & Palmour

Post Office Box 370

Summerville, GA 30747

Counsel for Petitioner

TABLE OF CONTENTS

Page

Jurisdictional Statement .......-ssseee- 0 1

Opinions Below ........ ai Win'h aleck ss 1

_Jurisdiction ........ Torr Tere ere 1

Questions Presented .......sse-eees Heese 2

Statement of the Case....... oor 2

Argument..... wovuweine pe peheoacne jameedee 4

Reason for Grant of Certiorari......... — 10

Conclusion ......++.+:. in tae oa Wioeseces ‘ 14

Certificate of Service .........++0-- jeeeeee 15

APPeNdix 2... cee ee ee cece reer scrcececcees

TABLE OF AUTHORITIES

CASES:

Blumenthal v. United States,

$32 U.S. 530 (1947)... ccccerccccses 4

Desist v. United States,

» Em me Fo. | ee 10

Glasser v. United States,

Hamling v. United States,

418 U.S. 87 (1974)......0eee- ckeenes 4

Hankerson v. North Carolina,

U.S. , 97 S.Ct. 2339

United States v. Nixon,

416- U8. 663 CISTE) 6 ccccccccses

Winship, in re, 397 U.S. 358 (1970)...

Glover v. United States,

306 F.2d 594 (10 Cir. 1962)....

Phelps v. United States,

160 F.2d 858 (8 Cir. 1947).....

Poliafico v. United States,

237 F.2d 97 (2 Cir. 1976)......

Tomplain v. United States,

42 F.2d 202 (5 Cir. 1930)......

United States v. Bentvena,

319 F.2d 916 (2 Cir. 1963).....

United States v. Callaway,

524 F.2d 609 (9 Cir. 1975).....

United States v. Chambers,

382 F.2d 910 (6 Cir. 1967).....

United States v. Consolidated

Laundries, 291 F.2d 563 (2 Cir.

tL ) hee ee re le eee Be

United States v. Cooper,

567 F.2d 252 (3 Cir, 1977).....

United States v. Craig,

522 F.2d 29 (6 Cir. 1975)......

ii.

em POY? .

iii.

United States v. Dixon,

962 F.2d 1138 (9 Cir. 1977)........ 12

United States v. Duckett,

950 F.2d 1027 (5 Cir. 1977)....:... 5

United States v. Freie,

945 F.2d 1217 (9 Cir. 1976)........ 6

United States v. Garcia,

Bos ©. a0: Sis €7 Cir. 19TT) 66 eck ie ss 12

United States v. Gimelstob,

475.F.2d 157 (3 Cir. 1973).....:.. ‘ 13

United States v. James,

990 F.2d 575 (5 Cir. 1979)......... 5,6

United States v. Johnson,

467 F.2d 804 (1st Cir. 1972)....... 5

United States v. Kates,

506 F.20 306 (3 Cir. 1975)... ....-. 6,13

United States v. Kenny,

C928 2d es a a5, ig 'G 4 W’a eb aa ke 13

United States v. Kirk,

004 F.2d 1261 (8 Cir; 1977)....... 7.

United States v. Lustig,

999 F.2d 737 (9 Cir. 1977)........ 12

United States v. Malatesta,

583 F.2d 748 (5 Cir. 1978)........ 8,11

United States v. Malatesta,

590 F.2d 1378 (§.Cir. .1979)......< 8. 9.11

United States v. Mayes,

512 F.2d 637 (6 Cir. 1974)....... 5)

United States v. Morado,

454 F.2d 167 (5 Cir. 1972)........

United States v. Santos, :

$85 F.2d 43 (7 Cir.. 1967)......05.

United States v. Schmaltz,

562 F.2d 558 (8 Cir. 1977)........

United States v. Stromberg,

268 F.2d 256 (2 Cir. 1959)........

United States v. Wyant,

576 F.2d 1312 (8 Cir. 1968).......

Connecting Defendants to Conspiracies,

Virginia Law Review 64:881 (1978)..

Developments in the Law - Criminal

Conspiracy 72 Harv.L.Rev. 980 (1959)...

Herman, Frivolous Criminal Appeals,

47N.Y.U. L.Rev. 701 (1972).......

Levie, Hearsay and Conspiracy,

52 Mich.L.Rev. 1159 (1964). teeeeees

LaFave & Scott, Handbook,

458, 459 (1972)... . ces e ween eevceece

iv.

12,13

5, 11

JURISDICTIONAL STATEMENT

Opinions Below

The first opinion of the Fifth Circuit Court of

Appeals in this case was rendered on August 9, 1978

(Exhibit "A" of Appendix). Following petition for

rehearing and suggestion of en banc consideration

(but en banc consideration denied) the opinion was

modified (Exhibit "B" of Appendix) on November 6,

1978. This opinion, as modified, is reported (544 F.

2d 1247).

The judgment of the District Court (prior to

appeal) was one granting motions of acquittal of

defendants LeCompte and Hatmaker (Exhibit "C" of

Appendix). Upon remand by the Circuit Court, the

District Court denied amended motions for new trial

and affirmed the convictions. Upon appeal, the

Fifth Circuit affirmed (Exhibit "D" to Appendix)

( F.2d ).

LeCompte made petition for rehearing, and

suggested en banc consideration (Exhibit "E" to

Appendix) on July 26, 1979.

On September 6, 1979, LeCompte submitted

additional memoranda (Exhibit "F" to Appendix).

LeCompte's petition for rehearing and for en

banc consideration was denied on November 14, 1979

(Exhibit "G" to Appendix).

Jurisdiction

This court has jurisdiction to entertain this

writ of certiorari under the provisions of 28 USCA

1254,

Questions Presented

(1) In reviewing a guilty verdict disapproved

by the District Judge (on motion for acquittal) is

defendant's connection with a conspiracy to be

established by "slight evidence" or by "substantial

evidence"?

(2) Where the Circuit Court bas changed its

criteria for review from the "slight e-ridence” test

to the "substantial evidence" test, is a defendant

whose case is then pending before the court entitled

to the benefit of the "substantial evidence" test?

Statement of the Case

LeCompte, along with ten other defendants,

was convicted by a jury for conspiracy to engage

in interstate prostitution. Upon LeCompte's

motion following the verdict, the District Judge

ordered his acquittal, based upon lack of proof of

his connection with the conspiracy (Appendix

Exhibit "C").

The United States Court of Appeals for the

Fifth Circuit reversed. Its opinion was that only

"slight evidence" was required to connect defendant

with a conspiracy (Appendix, Exhibit "A"). Upon

LeCompte's motion for reconsideration because of

insufficiency of evidence, the "slight evidence”

language was deleted, without comment as to the

quantum required (Appendix, Exhibit "B").

Upon remand and motion for new trial, the

District Court entered judgment of conviction

pursuant to the Circuit Court opinion. LeCompte

appealed.

2 ee

While LeCompte's appeal was pending, the

Fifth Circuit Court of Appeals disapproved the

"slight evidence" test. United States v. Malatesta,

590 F.2d 1379, 1382 (Mar. 12, 1979). LeCompte,

on March 26, 1979, in response to the Court's

request of March 23, 1979, for comment upon

decisions rendered since briefing, urged the Court

to apply Malatesta to his case, because the Court

had decided on Nov. 8, 1978, to reconsider the

"slight evidence" test; Malatesta, 583 F.2d 748; and

had denied his motion on November 6, 1978 (App.,

Ex. "E"). This was prior to oral argument, and

the point was made at oral argument (Id., p. 1).

The Court rendered its opinion on July 18,

1979. F.2d (5 Cir.)(Appendix, Exhibit

"D"). LeCompte moved for rehearing and for en

banc consideration upon the ground that the change

from the "slight evidence" to the "substantial evidence"

test had been overlooked (Appendix, Exhibit "E").

On September 6, 1979, LeCompte submitted memo

citing Hankerson v. North Carolina, U.S. ;

97 S.Ct. 2339 (1977), to support his contention that

failure to apply the "substantial evidence" test to

his case would not comport to "administration of

justice with an even hand" (Appendix, Exhibit "F").

The petitions for rehearing and for en banc considera-

tion were denied on November 14, 1979 (Appendix,

Exhibit "G"),

ARGUMENT

The "slight evidence” test is not

" an eens appellate criteria

for judging defendant's connection

with a conspiracy. The rule as

expressed has been that "slight

evidence" is sufficient to connect a

defendant to a conspiracy once its

existence has been proved (cases

cited in "Reasons for Grant of

Certiorari").

The conspiracy itself should be

established by substantia’ evidence.

Glasser v. United States, 315 U.S.

60, 80 (1942); Hamling v. United

States, 418 U.S. 87, 124 (1974).

Related rules in conspiracy prosecutions

have sensitized the evidentiary quantum: Secrecy

and concealment being essential features of a

successful conspiracy (Blumenthal v. United :

States, 332 U.S. 539, 557 - 1947), indirect proo

is necessary. Levie, Hearsay and Conspiracy,

_A Re-Examination of the Co-Conspirator's

Exception to the Hearsay Rule, 52 Mich.L.Rev.

1159, 1160 (1964). The hearsay rules, of course,

permit extrajudicial statements. Levie, i

and Conspiracy, 52 Mich.L.Rev., note 20, Pp. ;

(1954). Group trials increase the probability of an

individual's conviction by association. W. LaFave

& A. Scott, Handbook on Criminal Law, $61, n. 8,

at 458-459 (1972); Developments in the Law - :

Criminal Conspiracy, 72 Harv.L.Rev. 980, n. 1

(1959).

A difference in the evidentiary quantum

required for establishing the conspiracy itself

versus a given defendant's connection with it

risks fracture of the concept that guilt remain

"individual and personal". United States v.

Duckett, 550 F.2d 1027 (5 Cir. 1977); United

States v. Morado, 454 F.2d 167, 175 (5 Cir. 1972).

Whatever test is used should assure the preserva-

tion of the "reasonable doubt" standard. United

States v. Mayes, 512 F.2d 637, 647 (6 Cir. 1974),

cert. denied, 422 U.S. 1008, 423 U.S. 840 (1975).

The rule itself - the necessity to "connect"

a given defendant with the conspiracy - infers the

existence of a conspiracy among others. Connecting

Defendants to Conspiracies. Virginia Law Review

64, p. 881, at 892 (1978).

However, the mechanics vary among the

Circuits: In applying the rule that admissions

of a co-conspirator may be introduced only after

independent proof [Glasser v. United States, 315

U.S. 60, 74, 75 (1942); United States v. Nixon,

418 U.S. 683, 701 (1974)], some circuits combine

the defendant's and the witness‘ connection into

one general test. United States v. Johnson, 467

F.2d 804, 807 (1st Cir. 1972), cert. denied, 410

U.S. 909 (1973); United States v. Craig, 522 F.2d

29, 31 (6 Cir. 1975). Others separate the two

elements, requiring proof of conspiracy and then

demonstration of the connection. United States v.

Santos, 385 F.2d 43, 44 (7 Cir. 1967), cert. denied,

390 U.S. 954 (1968); Glover v. United States, 306

F.2d 594, 595 (10 Cir. 1962),

The Fifth Circuit, in United States v. James,

990 F.2d 575, at 980-581, concluded that this

court's decision in United States v. Nixon, 418 U.S.

683, at 701 (1974) placed the responsibility upon

the trial judge to determine "questions of fact re-

lating to admissibility of the (co-conspirator) state-

ment." (590 F.2d at 580)

(A) declaration by one defendant

is admissible against other defendants

only where there is a "sufficient

showing, by independent evidence

of a conspiracy among one or more

other defendants and the declarant

and if the declarations at issue were

in furtherance of that conspiracy".

418 U.S. at 701, 94S.Ct. at 3104,

41 L.Ed.2d at 1060 (emphasis ours),

and that "as a preliminary matter,

there must be substantial, independent

evidence of a conspiracy at least

enough to take the question to the jury".

Id., at 701, n. 14. (emphasis by Court

of Appeals) (590 F.2d at p. 581)

(quoting United States v. Nixon, supra)

In cases where proof of defendant's connec-

tion is sought other than by a co-conspirator state-

ment, there is apparently no demarcation between

proof of conspiracy and proof of individual connection

with it. Poliafico v. United States, 237 F.2d 97

104 (2 Cir. 1956); United States v. Kates, 508 F.2d

308, 310 (3 Cir. 1975); United States v. Freie, 545

F.2d 1217, 1221-1222 (9 Cir. 1976), cert. denied,

430 U.S. 966 (1977). "Slight evidence" thus merges

into the totality of proof, tending either to dilute -

the "reasonable doubt" standard [In re Winship, 397

U.S. 358, 364 (1970)], or to overburden appellate

review. Herman, Frivolous Criminal Appeals, 47

N.Y.U.L.Rev. 701 (1972). A conscientious appellate

review would appear insufficient to meet the "reason-

able doubt" standard, if "slight evidence" is adequate

to connect defendant with the conspiracy.

The language of Phelps v. United States,

160 F.2d 858 (8 Cir. 1947), cert. denied, 334 U.S.

860 (1948), that "It is therefore possible, for the

circumstances (of) an individual defendant's parti-

cipation in an established conspiracy to become

ee |

ARTE, BEKO OT ™

SUA net on yt

substantial from their weight in position and context,

though in abstractionthey may seem only slight,"

(Id., at 867-868), suggests that there be proof,

circumstances, or inferences from the "established

conspiracy" itself, in addition to, or to support, the

"slight evidence". However, subsequent cases state

the "slight evidence" rule without qualification.

U. S. v. Kirk, 534 F.2d 1262, cert. denied, 430

U.S. 906 (8 Cir. 1977); U. S. v. Wyant, 576 F.2d

1312 (8 Cir. 1978); Cave v. United States, 390 F.id

58 (8 Cir. 1968), cert. denied, 88 S.Ct. 2059 (1969),

as do other circuits (see cases cited in Reasons for

Grant of Certiorari).

A "slight evidence" test is especially in-

appropriate to connect a defendant to a conspiracy,

because of relaxed rules of evidence in conspiracy

cases, and the practice of joining numerous defendants

in one trial. The fact that this is only a criteria for

appellate review does not increase the quantum

required for conviction. It would not be logical to

assume that the appellate courts would affirm as

many convictions under a "substantial evidence"

test that they would under the "slight evidence"

test.

(2) Defendant is entitled to the

"substantial evidence" test to

connect him to the conspiracy :

or at least to a rule of law as

to the basis upon which his

connection wit.: the conspiracy

is predicated,

This is a short chronology of LeCompte's

quandary:

The District Judge granted his motion for

acquittal, following jury verdict of guilt, upon the

ground of insufficiency of evidence to connect him

with the conspiracy. The Circuit Court on August

9, 1978, reversed, stating that "slight evidence"

was sufficient to connect him with it (Appendix,

Exhibit "A"). LeCompte moved for rehearing and

for en banc consideration of the sufficiency of the

evidence. During that same period, the case of

United States v. Malatesta, 583 F.2d 748 (5 Ci~.

1978), was pending in that Circuit.

On November 6, 1978, the Circuit Court

denied LeCompte's motions for reconsideration.

577 F.2d 1247, 1255 (5 Cir. 1978) and at the same

time deleted from the opinion the "slight evidence"

language which appeared in its opinion of August

9, 1978 (Appendix, Exhibit "B"). That was the

only change from its original opinion.

On November 8, 1978, the Circuit Court

granted en banc consideration of the validity of

the "slight evidence" rule it had previously applied

in conspiracy cases. Malatesta, (above) 583 F.2d

748 (5 Cir. 1978).

The District Court, in LeCompte's case,

pursuant to the Circuit Court mandate, entered

judgment of conviction based upon the prior jury

verdict of guilt. LeCompte appealed, based upon

grounds made in a motion for new trial. That

appeal was pending on March 12, 1979, upon which

date the Circuit Court's en banc decision in

Malatesta was rendered. 590 F.2d 1379 (5 Cir.

March 12, 1979).

On March 23, 1979, the Circuit Court, in

LeCompte's case requested comment upon relevant

decisions rendered since briefing. On March 26,

1979, LeCompte replied (Attachment to Appendix,

Exhibit "E"), calling to the Court's attention the

Malatesta case. —

ke et coe

‘On July 18, 1979, the Circuit Court affirmed

LeCompte's conviction (Appendix, Exhibit "D").

LeCompte moved for rehearing and for en banc con-

sideration upon the ground that Malatesta should

apply to him (Appendix, Exhibit "E"). On Sept.

6, 1979, LeCompte submitted additional memoranda

upon retroactivity (Appendix, Exhibit "F"). The

Circuit Court denied rehearing and denied en banc

consideration on November 14, 1979 (Appendix, Ex.

"G"). Neither its opinion of July 18, 1979 (App.,

Ex. "D") nor its denial of rehearing (App., Ex. "G")

mentioned applicability of Malatesta to LeCompte's

case.

LeCompte's contention is this:

He was convicted under the "slight evidence"

test, because the District Judge applied that test,

although he found the evidence insufficient (App.,

Ex. "C"); and the original opinion of the Circuit

Court applied the "slight evidence" test. The modi-

fication of that opinion deleted only the "slight

evidence" language, and did not otherwise change

the opinion (App., Ex. "B"). The opinions on

LeCompte's subsequent appeal did not clarify whether

the "slight evidence" test was applied to LeCompte

(Appendix, Exhibits "D" and "G"). Since Malatesta

had stated that the "slight evidence" test would apply

to appeals decided thereafter (above), LeCompte's

conviction was presumptively under the "slight

evidence" test. However, the deletion of the "slight

evidence" language from the opinion (above) two

days after the grant of en banc consideration of

Malatesta indicates an awareness of schism.

10.

Assuming that application of the "slight

evidence" rule has reached such proportions that

prospectivity is necessary, its application to

LeCompte would be inappropriate: The Govern-

ment's appeal in his case was pending at the same

time as that of Malatesta; accordingly no appeals

would be spawned. To deny application of the

"substantial evidence" test to LeCompte "(H)ardly

comports with the ideal of ‘administration of justice

with an even hand™. Hankerson v. North Carolina,

U.S. , 97 8.Ct. 2339 (1977) [quoting

from Desist v. United States, 394 U.S. 244 (1969)].

Reason for Grant of Certiorari

To resolve the conflict among the

Circuit Courts of the United States

as to the quantum of evidence

necessary to connect one of several

defendants to a conspiracy, once

the existence of the conspiracy has

been proved.

11.

The conflict is substantial. A "slight

evidence” test was spawned by the Fifth Circuit

decision of Tomplain v. United States, 42 F.2d

202, 203 (5 Cir. 1930). United States v. Malatesta,

583 F.2d 748, at 760 (concurring opinion).

From 1930 ... until 1963 only 12

reported cases cited (Tomplain)

and fewer than 15 did from 1963

to 1970. Since 1970 ... Federal

Courts of Appeal applied the rule

5 times in 1971, 6 in 1972, and 9 in

1973. At least 15 cases per year

since then have referred to it. In

1977, at least 36 Federal cases cited

the rule at the Circuit level... In

cases reported from January, 1977,

through September 1, 1978, the

Fifth Circuit invoked the rule 28

times, and the Ninth Circuit applied

it in 19 cases.

Connecting Defendants to Conspiracies:

The Slight Evidence Rule and the

Federal Courts, Virginia Law Review

64; 881, note 4 (1978).

Upon en banc consideration in United States

v. Malatesta, 590 F.2d 1379, 1382 (5 Cir. 1979),

the Fifth Circuit overruled Tomplain. Its view was

that Glasser v. United States, 315 U.S. 60, 80 (1942),

and Hamling v. United States, 418 U.S. 87, 124

(1974), required application of the "substantial

evidence" test (590 F.2d at 1382). Judge Coleman's

opinion in the original review of Malatesta was that

the “substantial evidence" test was the "firmly

established" Jaw of the Fifth Circuit (583 F.2d at

761) and that the "slight evidence" test was spurious

(583 F.2d at 761-762).

12.

The Ninth Circuit has expanded the test from

a standard of appellate review to one permitting

instructions to the jury that only "slight evidence"

is necessary to connect a defendant to the conspiracy.

United States v. Lustig, 555 F.2d 737 (9 Cir. 1977),

cert. denied, 434 U.S. 1045 (1978). Also see,

United States v. Dixon, 562 F.2d 1138 (9 Cir. 1977);

United States v. Callaway, 524 F.2d 609, 615 (9 Cir.

1975), cert. denied, 424 U.S. 967 (1976).

The Sixth Circuit applies the "slight evidence”

test. United States v. Chambers, 382 F.2d 910,

913(5), and precedents there cited.

The Eighth Circuit first applied a "slight but

substantial in context" test. Phelps v. United States,

160 F.2d 858 (8 Cir. 1947), cert. denied, 334 U.S.

860 (1948); but now applies a "slight evidence"

test apparently without qualification. United States

v. Schmaltz, 562 F.2d 558 (8 Cir. 1977), cert. denied,

U.S. (98 S.Ct. 485); United States v. Wyant,

576 F.2d 1312 (8 Cir. 1978).

The Seventh Circuit "must take the view of

the evidence which most favors the Government, and

if substantial evidence supports the jury's conviction,

we will not reverse it." United States v. Garcia,

562 F.2d 411, at 414 (7 Cir. 1977) (emphasis added),

citing Glasser v. United States, 315 U.S. 60, 80 (1942).

This language was used in considering defendant's

contention that "there must at least be evidence to

support the inference that the defendant in some

_ way joined and participated in the conspiratorial

scheme." (562 F.2d at 414)

The Second Circuit says that the evidence to

connect a defendant with the conspiracy "must be

substantial, and not ‘too slight'." United States v.

~Bentvena, 319 F.2d 916, at 949 (2 Cir. 1963). The

"too slight" language comes from United States v.

Stromberg, 268 F.2d 256, at 267 (2 Cir. 1959):

ate aid

25s

13.

It is incumbent upon us to examine

the contentions that even if the

Government witnesses are believed,

the independent evidence connecting

each defendant with the conspiracy

is insufficient to sustain his conviction.

(268 F.2d at p. 267, citing Glasser,

— above)

(T)he independent evidence was too

slight to warrant the admission of

hearsay declarations and too slight

to submit to the jury.

(268 F.2d at 267)

The independent proof may be cir-

cumstantial, but it must be "sub-

stantial" and not "too slight".

United States v. Consolidated

Laundries, 291 F.2d 563 (2 Cir.

1960) (citing Stromberg).

The Third Circuit viewed the "slight evidence"

language (of cases there noted) as "no more than a

shorthand expression of the rule that, after a guilty

verdict by a jury ... an appellate tribunal may not

substitute its inferences from the evidence for those

drawn by the factfinder." United States v. Cooper,

567 F.2d 252, 253 (1977) (citing Glasser, above).

The "slight evidence" language appeared in previous

Third Circuit decisions. United States v. Kates,

508 F.2d 308, 310 (3 Cir. 1975); United States v.

Gimelstob, 475 F.2d 157, 164 (3 Cir. 1973), cert.

denied, 414 U.S, 828 (1974). United States v. Kenny,

462 F.2d 1205, 1226 (Part V, Opinion)(3 Cir. 1972).

14.

CONCLUSION

It would be timely for this Court to speak upon

this "slight evidence” rule because its use has in-

creased among the Circuits, and the volume of

conspiracy cases continues to mount.

For the reasons here previously stated, we

respectfully urge that the "slight evidence" rule be

disapproved as a test for connecting a defendant to

a conspiracy.

Due to the fact that the Fifth Circuit Court of

Appeals changed from the "slight" to the "substantial"

evidence test under the circumstances heretofore

outlined, LeCompte respectfully urges remand for

explication as to whether the "substantial evidence"

test was applied, or should apply, to him.

Respectfully ,

COOK Baer

By: wt, (ere

“ ‘MA. Cecil Palmour

P.O. Box 370

Summerville GA 30747

—

OR OR hy FRE POP ELT FS IN EN TI ——

15.

CERTIFICATE OF SERVICE

I have served the foregoing application for

writ of certiorari with Appendix upon the United

States, by mailing a copy of same to Mr. James E.

Baker, 428 U. S. Courthouse, 56 Forsyth Street,

N.W., Atlanta, Georgia 30303, the United States

Attorney handing the matter.

This bf day of December, 1979.

atrn1w

tioner

ounsel for Pe

APPENDIX EXHIBIT "A"

UNITED STATES v. CLEMONES

UNITED STATES of America,

Plaintiff-Appellee,

Mike CLEMONES, Priscilla Scott,

Charles Everett Coburn, Jr., Joseph

Harold Johnson, and William Alonzo

Johnson, Jr., Defendants-Appellants.

UNITED STATES of America,

Plaintiff-Appellant,

Vv.

Edward Raymond LeCOMPTE and

Kathy Hatmaker,

Defendants-Appellees.

Nos. 76-3866, 76-3870.

United States Court of Appeals,

Fifth Circuit.

Aug. 9, 1978.

Defendants were convicted before

the United States District Court for the

Northern District of Georgia, Albert J.

Henderson, Jr., Chief Judge, of substan-

tive or conspiracy counts, or both, arising

from multistate prostitution activities,

and judgments of acquittal were entered

as to two other defendants, and cross

appeals were taken. The Court of Ap-

peals, Godbold, Circuit Judge, held that:

(1) prosecutor’s ex parte order informing.

government witnesses that they were ex-

cused until the next day from further

interviews by defense counsel was im-

proper, but did not require reversal, in

absence of showing of real, substantive

impairment of defendants’ right to fair

trial; (2) Government’s alleged failure to

comply fully with discovery orders did

not require reversal, in absence of show-

ing of prejudice; (8) evidence sustained

defendant’s conviction of Mann Act vio-

6084

lation; (4) evidence sustained: defend-

ant’s conviction of traveling in interstate

commerce with intent to carry on an un-

lawful activity; (5) evidence sustained

defendant’s conviction of conspiring to

operate an interstate prostitution ring

through a pattern of racketeering activi-

ties, and (6) evidence sustained jury’s

verdict that defendants were guilty of

conspiring to operate an interstate pros-

titution ring through a pattern of rack-

eteering activities.

Affirmed in part; reversed and re-

manded in part.

1. Criminal Law 6661, 1168(2)

Prosecution’s failure to serve forth-

with as many government witnesses as

possible with magistrate’s order stating

that government witnesses could talk

with defense counsel, together with pros-

ecution’s ex parte order informing

government witnesses that they were ex-

cused until the next day from further

interviews by defense counsel was im-

proper, but such action did not require

reversal of defendants’ convictions, in

absence of showing of real, substantive

impairment of defendant’s right to fair

trial.

2. Criminal Law @1171.1(1)

Instructions allegedly given to

government witness by assistant United

States attorney, indicating that after de-

fense objections to testimony were sus-

tained, witness was to convey the infor-

mation to jury anyway, did not require

reversal of defendants’ convictions, in

absence of showing of prejudice to de-

fendants.

3. Criminal Law <1166(1)

Government’s failure to turn over

one FBI interview report, failure to tell

defense counsel that a witness had told

Synopses, Syllabi and Key Number Classification

The Synopses, Syllabi and Key Number Classifi-

cation constitute no part of the opinion of the court.

6085 UNITED STATES v. CLEMONES

an FBI agent of some insignificant er-

rors in transcript of his grand jury testi-

mony, failure to tell defendants that in

the past a government witness had been

a paid informer, and Government’s delay

in giving to defense counsel the names

of persons who had been promised im-

munity did not require reversal of de-

fendants’ convictions, in absence of

showing of prejudice.

4. Conspiracy @47(1)

Evidence in prosecution arisirz out

of multistate prostitution activities sus-

tained finding of the existence of a sin-

gle conspiracy as charged, rather than

multiple conspiracies.

5. Prostitution e=4

Evidence that defendant furnished

intrastate transportation to prostitute

after prostitute had crossed state line as

part of a prearranged trip sustained de-

fendant’s conviction of Mann Act viola-

tion. 18 U.S.C.A. § 2421.

6. Prostitution 1

Within meaning of statute making

it unlawful to travel in interstate com-

merce with intent to carry on an unlaw-

ful activity and thereafter to perform an

act to carry on said activity, the term

“unlawful activity” includes any business

enterprise involving prostitution offenses

in violation of the laws of the state

where committed. 18 U.S.C.A. §§ 1952,

1952(b).

See publication Words and Phrases

for other judicial constructions and

definitions.

7. Prostitution <5

Evidence that defendant drove pros-

titute across state lines where prostitute

had sexual relations with a man with

whom defendant was attempting to ne-

gotiate a land transaction sustained de-

fendant’s conviction of traveling in inter-

state commerce with intent to carry on

an unlawful activity, notwithstanding

fact that prostitute was paid no money

for her sexual favors. 18 U.S.C.A.

§§ 1952, 1952(b); West’s F.S.A. § 796.07.

8. Prostitution @=5

Evidence that defendant furnished

or otherwise participated in the trans-

portation of prostitute to points in other

states sustained defendant’s conviction

of operating an interstate prostitution

ring through a pattern of racketeering

activities. 18 U.S.C.A. § 1962(c).

9. Conspiracy @47(3)

Evidence sustained defendant’s con-

viction of conspiring to operate an inter-

state prostitution ring through a pattern

of racketeering activities. 18 U.S.C.A.

§ 1962(d).

10. Criminal Law e=1024(5)

Government can appeal a judgment

of acquittal entered after a verdict of

guilt.

11. Conspiracy <=48.1(1)

Once existence of a conspiracy is

shown, only slight evidence is required to

warrant submitting to the jury the ques-

tion of a particular defendant’s mernber-

ship; Government is not required to

prove that defendant had full knowledge

of all details of conspiracy, but knowl-

edge of its essential nature is sufficient.

12. Conspiracy <47(3)

Evidence that prostitutes were

brought from out of state, delivered to

defendants, and were set up in business

at establishments operated by defend-

ants, and that some or all of them paid

over earnings to defendants sustained

jury’s verdict that defendants were

guilty of conspiring to operate an inter-

state prostitution ring through a pattern

of racketeering activities. 18 U.S.C.A.

§ 1962(c). bs

Appeals from the United States Dis-

trict Court for the Northern District of

Georgia.

en RTE OT Oe OR

= ony RE TI

UNITED STATES v. CLEMONES 6086

Before JONES, GODBOLD and GEE,

Circuit Judges.

GODBOLD, Circuit Judge:

In a three weeks jury trial the individ-

ual appellants were convicted of substan-

1. Of the defendants involved in this appeal, all

except Joseph Harold Johnson were convicted

on Count One of the 44-count indictment.

Count Cne charged each defendant with con-

spiring to operate an interstate prostitution

ring through a pattern of racketeering activi-

ties in violation of 18 U.S.C. § 1962(d) (1976).

Billy Johnson, Priscilla Scott and Mike Clem-

ones were convicted on Count Two, which

charged them with operating an _ interstate

prostitution ring through a pattern of racket-

eering activities in violation of 18 U.S.C.

§ 1962(c) (1976). Charles Coburn was con-

victed on Count Forty-one, which charged a

violation of 18 U.S.C. § 2421 (1976). Joseph

Harold Johnson was convicted on Count Eigh-

teen, which charged a violation of 18 U.S.C.

§ 1952(a) (1976). Additionally, Scott was con-

victed on two other counts, Clemones on four,

and Billy Johnson on 19. Each of these counts

charged a violation of 18 U.S.C. § 1952(a)

(1976), 18 U.S.C. § 2421 (1976), or 18 U.S.C.

§ 2422 (1976).

The relevant portions of the statutes, all

from 18 U.S.C., are set forth below.

§ 1961. Definitions

As used in this chapter—

(1) “Racketeering activity” means (A) any

act or threat involving murder, kidnapping,

gambling, arson, robbery, bribery, extortion,

or dealing in narcotic or other dangerous

drugs, which is chargeable under State law

and punishable by imprisonment for more

than one year; (B) any act which is indict-

able under any of the following provisions of

title 18, United States Code: Section 201 (re-

lating to bribery), section 224 (relating to

sports bribery), sections 471, 472, and 473

(relating to counterfeiting), section 659 (re-

lating to theft from interstate shipment) if

the act indictable under section 659 is feloni-

ous, section 664 (relating to embezzlement

from pension and welfare funds), sections

891-894 (relating to extortionate credit

transactions), section 1084 (relating to the

transmission of gambling inforrnation), sec-

tion 1341 (relating to mail fraud), section

tive or conspiracy counts, or both, arising

from multi-state prostitution activities

conducted at many locations in the South

and Southeast.! The convictions of all

appellants are affirmed. The United

States also appeals, from judgments of

acquittal entered by the trial court as to

1343 (relating to wire fraud), section 1503

(relating to obstruction of justice), section

1510 (relating to obstruction of criminal in-

vestigations), section 1511 (relating to the

obstruction of State or local law enforce-

ment), section 195] (relating to interference

with commerce, robbery, or extortion), sec-

tion 1952 (relating to racketeering), section

1953 (relating to interstate transportation of

wagering paraphernalia), section 1954 (relat-

ing to unlawful welfare fund payments), sec-

tion 1955 (relating to the prohibition of ille-

gal gambling businesses), sections 2314 and

2315 (relating to interstate transportation of

stolen property), sections 2421-24 (relating

to white slave traffic), . . .

§ 1962. Prohibited activities

(a) It shall be unlawful for any person

who has received any income derived, di-

rectly or indirectly, from a pattern of racket-

eering activity or through collection of an

unlawful debt in which such person has par-

ticipated as a principal within the meaning

of section 2, title 18, United States Code, to

use or invest, directly or indirectly, any part

of such income, or the proceeds of such in-

come, in acquisition of any interest in, or the

establishment or operation of, any enterprise

which is engaged in, or the activities of

which affect, interstate or foreign commerce.

A purchase of securities on the open market

for purposes of investment, and without the

intention of controlling or participating in

the control of the issuer, or of assisting an-

other to do so, shall not be unlawful under

this subsection if the securities of the issuer

held by the purchaser, the members of his

immediate family, and his or their accom-

plices in any pattern or racketeering activity

of the collection of an unlawful debt after

such purchase do not amount in the aggre-

gate to one percent of the outstanding secu-

rities of any one class, and do not confer,

either in law or in fact, the power to elect

one or more directors of the issuer.

(b) It shall be unlawful for any person

through a pattern of racketeering activity or

A-iv

6087 UNITED STATES v. CLEMONES

two defendants after they were found

guilty by the jury. We reverse the

judgments of acquittal.

The evidence displayed organized pros-

titution in its most degrading aspects.

through collection of an unlawful debt to

acquire or maintain, directly or indirectly,

any interest in or control of any enterprise

which is engaged in, or the activities of

which affect, interstate or foreign commerce.

ployed by or associated with any enterprise

engaged in, or the activities of which affect,

interstate or foreign commerce, to conduct

or participate, directly or indirectly, in the

conduct of such enterprise’s affairs through

a pattern of racketeering activity or collec-

tion of unlawful debt.

(d) It shall be unlawful for any person to

conspire to violate »ny of the provisions of

subsections (a), (b) vr (c) of this section.

Added Pub.L. 91- 452, Title IX, § 901(a),

Oct. 15, 1970, 84 Stat. 942.

§ 1952. Interstate and foreign travel or trans-

portation in aid of racketeering enter-

(a) Whoever travels in interstate or for-

eign commerce or uses any facility in inter-

state or foreign commerce, including the

mail, with intent to—

(1) distribute the proceeds of any unlawful

activity; or

(2) commit any crime of violence to fur-

ther any unlawful activity; or

(3) otherwise promote, manage, establish,

carry on, or facilitate the promotion, man-

agement, establishment, or carrying on, of

any unlawful activity,

and thereafter performs or attempts to per-

form any of the acts specified in subpara-

graphs (1), (2), and (3), shall be fined not

more than $10,000 or imprisoned for not

more than five years, or both.

s * s & we s

§ 2421. Transportation generally

Whoever knowingly transports in inter-

state or foreign commerce, or in the District

of Columbia or in any Territory or Posses-

sion of the Wnited States, any woman or girl

for the purpose of prostitution or debauch-

ery, or for any other immoral purpose, or

with the intent and purpose to induce, en-

tice, or compel such woman or girl to be-

come a prostitute or to give herself up to

The women ranged from experienced

professionals to teen-age girls as young

as 14, some induced into prostitution by

promises of money, clothing and cars,

others forced by beatings and threats of

debauchery, or to engage in any other im-

moral practice; or

Whoever knowingly procures or obtains

any ticket or tickets; or any form of trans-

portation or evidence of the right thereto, to

be used by any woman or girl in interstate

or foreign commerce, or in the District of

Columbia or any Territory or Possession of

the United States, in going to any place for

the purpose of prostitution or debauchery,

or for any other immoral purpose, or with

the intent or purpose on the part of such

person to induce, entice, or compel her to

give herself up to the practice of prostitu-

tion, or to give herself up to debauchery, or

any other imnicra! practice, whereby any

such woman or girl shall be transported in

interstate or foreign commerce, or in the

District of Columbia or any Territory or Pos-

session of the United States—

Shall be fined not more than $5,000 or

imprisoned not more than five years, or

both.

June 25, 1948, c. 645, 62 Stat. 812; May 24,

1949, c. 139, § 47, 63 Stat. 96.

§ 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 Co-

lumbia or in any Territory or Possession of

the United States, for the purpose of prosti-

tution or debauchery, or for any other im-

moral purpose, or with the intent and pur-

pose on the part of such person that such

woman or girl shall engage in the practice of

prostitution or debauchery, or any other im-

moral practice, whether with or without her

consent, and thereby knowingly causes such

woman or girl to go anc 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 iraprisoned

not more than five years, or both.

June 25, 1948, c. 645, 62 Stat. 812.

A-v

UNITED STATES v. CLEMONES 6088

violence, even some recruited through

their parents. They worked with and

often were controlled by pimps to whom

they turned over their earnings, and

when necessary they were disciplined by

threats, beatings and pistol whippings.

By plane, bus and the cars of pimps

the women were moved from location to

location on command, from Virginia to

Alabama, to cities, towns and rural truck

stops, where they operated in houses of

prostitution, apartments, massage par-

lors, mobile homes and the outbuildings

of rural service stations. Some were

“owned” by one pimp, others by “joint

owners.” Women were “sold” by one

pimp to another Arrangements were

made for abortions, releases on bail and

even dental care. The take was large,

for example $110,000 in five to six

months at a small-town Georgia truck

stop. Prostitutes earned as much as

$400-$500 per week; as little as clothing

money.

I. Denial of access to witnesses

[1] The assistant United States At-

torney handling the case instructed some

30 to 35 witnesses appearing before the

grand jury that the proceedings were se-

cret and that they should not discuss

their testimony with anyone other than

their attorneys or government agents.

The defense learned of this and filed a

motion asking to be permitted to talk to

the witnesses. A magistrate heard the

motion and, on March 26, 1976, entered

an order stating that the witnesses could

talk with defense counsel. He ordered

that each witness subpoenaed by the

government be served forthwith with a

copy of the order.

2. One young girl, not previously a prostitute,

was “delivered” by Billy Johnson to an Ala-

bama truck stop to be a waitress. She refused

to engage in prostitution, Johnson came back

The case was set for trial April 5.

The government asserts that on April 5

a copy of the order was given to all, or

most, of the witnesses. The defendants

say this was not done until July 12. The

case was continued to June 7, and before

that date continued again to July 12.

On July 12 the court learned that de-

fendants still had not had full access to

the witnesses who had appeared before

the grand jury. In some instances de-

fense counsel had been able to talk to,

and even get a statement from, a wit-

ness. The government does not dispute,

however, that in the main the witnesses

had not been interviewed by the defense.

It is unclear whether this was caused by

lack of knowledge of the magistrate’s

order, failure of the government to serve

the order, dilatoriness of the defendants,

or some combination of these factors.

For purposes of this appeal, we assume

the fault was the government’s.

The district judge tried to rectify the

matter. The witnesses were assembled

in the courtroom with government coun-

sel excluded and advised of their rights

and obligations as witnesses. Defense

counsel began interviewing persons will-

ing to submit to interviews. There were

approximately 12 defense counsel

present, and about 10 of some 80 wit-

nesses were interviewed on July 12. As

this process began either the magistrate

or the assistant United States Attorney

told some of the witnesses not yet inter-

viewed that they were excused until the

next day. Before the actual trial began

the following day the defendants moved

for a continuance based on their inability

to prepare. The motion was denied.

The trial began and lasted three weeks.

and beat her, and she acceded. The operator,

Cleburn, returned her to Johnson after a few

days and Johnson then “sold” her to another

pimp for $500.

A-vi

6089 UNITED STATES v. CLEMONES

All defendants contend these events

deprived them of a fair trial. The

government has conceded, grudgingly

and half-heartedly, that the instructions

to the witnesses were improper.’ It has

not satisfactorily explained the failure to

serve the magistrate’s order forthwith

on as many witnesses as could be found.

The government erred, but other than

general allegations of prejudice the de-

fendants have not shown that they were

really harmed by belated aecess to the

witnesses. The names of some witnesses

were revealed by the indictments. By

July 12 some of the defendants had al-

ready talked to, and even obtained state-

ments from, some witnesses. Several

days before trial the government fur-

nished statements of witnesses, FBI re-

ports of interviews and grand jury testi-

mony. On the first day of trial the

government furnished defendants a list

of government witnesses. No particular-

ized prejudice is even argued with re-

spect to any specific witnesses. Defend-

ants made no showing that they could

not interview witnesses as the long trial

progressed. When the government rest-

ed after two weeks and 47 witnesses, no

defendant asked for additional time to

further prepare a defense or to locate

additional witnesses.

Defense counsel were indignant at the

government’s interference with their ac-

vess to witnesses and its inept response

to corrective efforts, and they were enti-

tled to be indignant. But they have not

demonstrated real, substantive impair-

ment of their right to fair trial.

3. See, e. g., U. S. v. White, 454 F.2d 435 (CA7,

1971), cert. denied, 406 U.S. 962, 92 S.Ct. 2070,

32 L.Ed.2d 350 (1972); Gregory v. U. S., 125

U.S.App.D.C. 140, 369 F.2d 185 (1966), aff'd

after remand, 133 U.S.App.D.C. 317, 410 F.2d

1016, cert. denied, 396 U.S. 865, 90 S.Ct. 143,

24 L.Ed.2d 119 (1969).

The government represents that the assist-

ant United States Attorney gave the erroneous

II. Other prosecutorial misconduct

{2] On cross-examination it was

brought out that government witness

Lawrence had given a statement to an

investigator for some of the defendants

in which he described instructions that

he said were given him by the assistant

United States Attorney concerning how

he should conduct himself when called as

a witness. The general effect of the

alleged instructions was that when de-

fense objections had been sustained to

testimony, upon a signal from the assist-

ant United States Attorney witness

Lawrence would get the information

over to the jury anyhow. If the alleged

instructions were given, it is not shown

that any prejudice to defendants result-

ed. The same analysis applies to the

testimony of a hostile government wit-

ness, who stated that when she ques-

tioned what she said were inaccuracies in

a statement previously taken from her

by the FBI, the assistant United States

Attorney threatened her with a perjury

charge “if [she] got on the stand and

lied.”

III. Discovery

[3] Before trial the government

turned over to defendants a great vol-

ume of Jencks Act material. Defend-

ants complain of the failure to turn over

one FBI interview report, failure to tell

the defense that a witness had told an

instructions to the witnesses under what he

thought was an office policy, and that he was

motivated by protecting the witnesses, many

of whom were young and frightened prosti-

tutes, from publicity, threats and even vio-

lence. But denial of defense access to the wit-

nesses, imposed on the prosecutor’s ex parte

order, was not the proper way to pursue these

objectives.

A-vii

UNITED STATES v. CLEMONES 6090

FBI agent of some insignificant errors in

the transcript of his grand jury testimo-

ny, and failure to tell defendants that in

the past a government witness had been

a paid informer. These complaints are

overblown and in no instance shown to

be prejudicial.

Also, the government was required to

give the names of persons who had been

promised immunity. It delayed in doing

so despite several demands. Only a lim-

ited number of persons—the government

says three—had been extended formal

immunity. Nevertheless, the prosecutor

realized that statements had been made

informally to witnesses, particularly

young prostitutes, that they were not

going to be prosecuted for prostitution,

and he furnished at trial a list of 30

names. The government’s response was

dilatory, but no defendant points out any

prejudice.

IV. Single versus multiple conspiracies

[4] Some of the defendants raise the

Kotteakos‘ contention that a single con-

spiracy was charged, multiple conspira-

cies proved. The conspiracy here is simi-

lar to that in U. S. v. Perez, 489 F.2d 51

(CA5, 1973). We eschew any effort to

describe it in structural terms. It was a

single-purpose and continuously ongoing

undertaking to operate a multi-state

prostitution enterprise. Prostitutes were

recruited, “broken in,” cared for, disci-

plined, moved from location to location,

and dropped out of the ring or were put

out. Many reappeared and rejoined.

The nature of the enterprise necessarily

included a cast part permanent and part

changeable and changing, and constantly

changing locations. Billy Johnson was

the dominant force. Clemones, Dill, Sur-

rett, Joseph Earl Johnson, and others

were helpers, associated pimps and jun-

ior pimps, some not always present but

floating in and out of the ongoing opera-

tion. We hold that there was no vari-

ance, but if there was the substantial

rights of the defendants were not mate-

rially affected.

V. Defendant Scott

[5] Scott was not entitled to judg-

ment of acquittal on count 10. Count 10

charged her with a violation of the Mann

Act by aiding and abetting in the trans-

portation of Thelma Ann Lunsford from

Georgia to Johnson City, Tennessee, in

1973. Lunsford had been working in

various cities for Billy Johnson. John-

son, in Rome, Georgia, told her that he

was sending her to Johnson City, Ten-

nessee. In Lunsford’s presence Johnson

called Scott, who operated a house of

prostitution in Johnson City, and told

Scott that he was sending Lunsford to

Johnson City. Johnson took Lunsford to

Chattanooga, Tennessee, where she

caught a bus to Johnson City. She was

met there at the bus station by Scott

who took her to Scott’s emporium.

Lunsford worked there as a prostitute

for two weeks, then on instruction from

Johnson returned by bus to Chattanooga.

Johnson met her there and drove her

back to Rome. Lunsford gave Johnson

money she had earned working for Scott.

Later Lunsford traveled to Johnson City

several more times, went to Scott’s, and

worked there as a prostitute.

Scott contends that on Lunsford’s first

trip in 1973 the only act she committed

was to meet Lunsford at the bus station

in Johnson City at which time the of-

fense already had been completed. This

overlooks the prearrangement consisting

of the telephone call, followed by the

4. Katteakos v. U. S., 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).

. A-viti

6091 UNITED STATES v. CLEMONES

actual interstate transportation with the

last leg terminating at Scott’s house in

Johnson City. U. S. v. Dimsdale, 410

F.2d 358 (CA5, 1969), holds that the

transportation necessary for conviction is

complete when the state line is crossed.

It does not stand for the converse, i. e.,

that furnishing transportation after the

state line is crossed and as part of a

prearranged interstate trip is not an of-

fense. See Cwach v. U. S., 212 F.2d 520

(CA8, 1954).

Scott received a three-year sentence

on each count, all concurrent. Under

the concurrent sentence doctrine, we

need not consider the validity of Scott’s

convictions on counts 1, 2 and 25.

VI. Defendant Joseph Harold Johnson

By arrangement between this defend-

ant and Billy Johnson, Lunsford went

from Georgia to Florida to entertain

“the Colonel,” a man with whom this

defendant was attempting to negotiate a

land transaction. The defendant and

Clemones drove Lunsford to this defend-

ant’s motel in Florida, where she met

“the Colonel” and had sexual relations

with him. He paid no money to her for

her favors, and as far as she knew he

paid no money to anyone.

[6,7] Defendant was convicted under

18 U.S.C. § 1952, making it unlawful to

travel in interstate commerce with in-

tent to carry on an unlawful activity atid

thereafter to perform an act to carry on

said activity. The term “unlawful activ-

ity” includes any business enterprises in-

volving prostitution offenses in violation

of the laws of the state where commit-

ted. 18 U.S.C. § 1952(b). The appellant

says that under Florida law prostitution

is confined to sexual intercourse for hire.

But Fla.Stat.Ann. § 796.07 (West 1976)

also includes in the definition “giving or

receiving of the body for licentious sexu-

al intercourse without hire.” Appellant

also argues that the isolated event with

“the Colonel” does not amount to a busi-

ness enterprise within § 1952. The jury

could have concluded, however, that the

defendant’s motel was a business enter-

prige involving prostitution and that the

trip to Florida was intended in part to

facilitate the carrying on of unlawful ac-

tivity in the motel.

VII. Defendant Clemones

[8] Clemones asserts that he was en-

titled to judgment of acquittal on the

conspiracy count and on_ substantive

counts 2, 16, 17, 18 and 25. His argu-

ment, in essence, is that the evidence of

his furnishing or otherwise participating

in the transportation of prostitutes to

points in other states shows no more

than that “he went along for the ride”

with defendant Billy Johnson. Billy

Johnson was the master pimp of the net-

work. Clemones was deeply involved

with Johnson and the network in many

ways that were described to the jury.

The jury could infer that Clemones, who

was active on numerous other occasions

in various ways—including transporting

prostitutes to other states—was not an

innocent guest on these delivery runs

but was a central figure in the conspir-

acy.

Because Clemones’ sentences under

counts 2, 16, 17, 18 and 25 are concurrent

with his sentence under the conspiracy

count, we need not consider his remain-

ing arguments.

VIII. Defendant Coburn

[9] Coburn was convicted on counts 1

and 41. He received concurrent sen-

tences.

A pimp named Surrett, with whom

Billy Johnson had many dealings, testi-

. A-ix

UNITED STATES v. CLEMONES 6092

fied that Johnson asked him to go into

partnership with Johnson and Coburn

for conducting prostitution at Coburn’s

truck stop in Cedar Bluff, Alabama.

Johnson brought a young girl from his

trailer at Rome, Georgia, to Coburn’s

place, talked with Coburn and left. The

girl declined to engage in prostitution.

Johnson returned and beat her, and she

then did engage in prostitution, with Co-

burn and his wife arranging her dates.

After a couple of days of this Coburn

drove the girl to Rome and delivered her

back to Johnson The jury found that

Coburn was a member of the conspiracy,

and we will not disturb this finding. Co-

burn also attacks the alleged failure of

the government to promptly furnish a

list of its witnesses. The list was fur-

nished on the first day of trial. In view

of the concurrent sentence, we need not

discuss Coburn’s conviction on Count 41.

IX. The government’s appeal

The jury found Hatmaker and Le-

Compte guilty on Count One. The trial

court, however, found the evidence in-

sufficient to support verdicts against

Hatmaker and LeCompte and granted

their motions for judgments of acquittal.

From these rulings the government ap-

peals. We reverse.

[10] The government can appeal a

judgment of acquittal entered after a

verdict of guilt. In U. S. v. Boyd, 566.

F.2d 929 (CA5, 1978), this court held

such an appeal permissible pursuant to

18 U.S.C. § 3731 (1976). The decision in

Boyd is not inconsistent with the princi-

les announced in U. S. v. Martin Linen

Supply Co., 480 U.S. 564, 97 S.Ct. 1349,

51 L.Ed.2d 642 (1977). See U. S. v.

Scott, —- U.S. —-—, 98 S.Ct. 2187, 56

L.Ed.2d --—, (1978).

5. This was the girl ‘“‘sold”

We must decide whether the evidence,

viewed in the light most favorable to the

government, was sufficient to support

the jury’s conclusions that beyond rea-

sonable doubt the appellees conspired to

violate § 1962(c).

{11] Under Count One Hatmaker and

LeCompte were charged with a conspir-

acy to operate an interstate prostitution

ring through a pattern of racketeering

activity. Our affirmance of the convic-

tions of Billy Johnson, Clemones, Charles

Coburn, and Scott establishes that the

government proved the existence of the

conspiracy. Once the existence of a con-

spiracy is shown only slight evidence is

required to warrant submitting to the

jury the question of a particular defend-

ant’s membership. See, e. g., U. S. v.

Baldorrama, 566 F.2d 560, 566 (CA5,

1978). The government was not re-

quired to prove that the appellees had

full knowledge of all the details of the

conspiracy. Knowledge of its essential

nature—to operate a prostitution ring

through a pattern of racketeering activi-

ty—is sufficient. U.S. v. Brasseaux, 509

F.2d 157, 160 (CA5, 1975). See Blumen-

thal v. U. S., 382 U.S. 539, 557, 68 S.Ct.

248, 256, 92 L.Ed. 154, 168 (1947). In

this case the evidence is sufficient that

each appellee harbored the required in-

tent to enter the conspiracy as well as

the state of mind necessary to commit

the object offense of conducting the af-

fairs of an enterprise through a pattern

of racketeering activity. Compare U. S.

v. Cantu, 557 F.2d 1173 (CA5, 1977), cert.

denied, — -- U.S. --——, 98 S.Ct. 1236, 55

L.Ed.2d 763 (1978), with U. S. v. Feola,

420 U.S. 671, 95 S.Ct. 1255, 43 L.Ed.2d

541 (1975). See Marcus, Criminal Con-

spiracy: The State of Mind Crime—In-

tent, Proving Intent, and Anti-federal

Intent, 1976 U.III.L.F. 627.

to another pimp for $500.

A-x

6093 UNITED STATES v. CLEMONES

[12] The evidence, as it relates to

Hatmaker, shows that she operated a

house of prostitution in Knoxville, Ten-

nessee. In 1971 Billy Johnson called her

from Rome, Georgia, and told her that

he would bring Thelma Lunsford te Hat-

maker’s place in Knoxville for prostitu-

tion. He then brought Thelma to Hat-

maker’s house, and she did engage in

prostitution there and turned her earn-

ings over to Billy Johnson. In 1973 or

1974, Mildred Lunsford traveled with

Billy Johnson and Thelma Lunsford from

Rome, Georgia, to Chattanooga, then

Mildred traveled by common carrier to

Johnson City, Tennessee, where Hatmak-

er met her. Thereafter Mildred worked

in Johnson City as a prostitute. On a

second occasion, Hatmaker met Mildred

on her arrival in Johnson City. Again,

Lunsford worked as a prostitute in John-

son City. The evidence further reveals

that Linda Bishop, a prostitute, worked

at Hatmaker’s establishment in Knox-

ville after traveling to Knoxville with

Thelma Lunsford. She gave Hatmaker

some of her earnings while there. Bish-

op left Knoxville and flew to Atlanta to

meet Billy Johnson.

The evidence, as it relates to Le-

Compte, shows that he managed the Big

Rig Truck Stop near Newport, Tennes-

see, and that the truck stop was one of

the locations at which Billy Johnson

placed his prostitutes. Thelma Lunsford

was brought there by Billy Johnson. Le-

Compte was running the Big Rig, and

Thelma gave him half the money she

made. She overheard conversations be-

tween LeCompte and Billy Johnson re-

garding prostitution. When LeCompte

was arrested, records were found in the

cabin next to his residence which, the

jury could infer showed Thelma’s daily

earnings. Linda Bishop was brought to

the Big Rig by Billy Johnson to engage

in prostitution, and while there she gave

part of her money to LeCompte. Cath-

erine Weathers was brought by Billy

Johnson from Roanoke, Virginia, to the

Big Rig and introduced to LeCompte.

Thus, prostitutes were brought from

out of state and delivered, or were sent

from out of state and were met, and

were set up in business at Hatmaker’s

and at the Big Rig. Some or all of them

paid over earnings to Hatmaker or Le-

Compte and to Billy Johnson. Johnson,

the pimp, discussed travel arrangements

with Hatmaker. He talked prostitution

with LeCompte and introduced Weathers

to LeCompte. These things occurred in

the conduct of prostitution, in which

movement of women from place to place,

and supervision of women by pimps, and

division of money with the pimp and the

operator, are characteristic. With re-

spect to both Hatmaker and LeCompte

the jury could infer that each knew that

the essential nature of the conspiracy

embraced a pattern of travel in inter-

state commerce by persons intending to

advance their unlawful business enter-

prise through the commission of acts

specified in 18 U.S.C. § 1961 and em-

braced the division of the earnings of

the prostitutes who had been sent or

brought in. The jury was entitled to

reject inferences that Hatmaker and Le-

Compte each carried on a local enterprise

and had no knowledge that the conspir-

acy into which they entered as partici-

pants involved interstate travel. The

trial court erred in granting the motions

for judgments of acquittal by Hatmaker

and LeCompte.

The judgments of conviction of the in-

dividual appellants are AFFIRMED.

The judgment acquitting Hatmaker and

LeCompte on Count One is REVERSED

and the case REMANDED for proceed-

ings not inconsistent with this opinion.

Adm. Office, U.S. Courts—West Publishing Company, Saint Paul, Minn.

APPENDIX EXHIBIT "B" A-xi

UNITED STATES v. CLEMONES 698

UNITED STATES of America,

Plaintiff-Appellee,

Vv.

Mike CLEMONES, Priscilla Scott,

Charles Everett Coburn, Jr., Joseph

Harold Johnson, and William Alonzo

Johnson, Jr., Defendants-Appellants.

UNITED STATES of America,

Plaintiff-Appellant,

Vv.

Edward Raymond LeCOMPTE and

Kathy Hatmaker,

Defendants-Appellees.

Nos. 76-3866, 76-3870.

United States Court of Appeals,

Fifth Circuit.

Nov. 6, 1978.

Appeals from the United States Dis-

trict Court for the Northern District of

Georgia; Albert J. Henderson, Jr., Chief

Judge.

ON PETITIONS FOR REHEARING

AND PETITIONS FOR REHEAR-.

ING EN BANC

(Opinion 8/9/78, 5 Cir., 1978, 577

F.2d 1247).

Before JONES, GODBOLD and GEE,

Circuit Judges.

PER CURIAM:

The opinion is modified by deleting the

following language (p. 1255):

Once the existence of a conspiracy is

shown only slight evidence is required

to warrant submitting to the jury the

question of a particular defendant’s

membership. See, e. g., U. S. v. Bal-

darrama, 566 F.2d 560, 566 (CA5,

1978). .

The petitions for rehearing filed by

Edward Raymond LeCompte, William

Alonzo Johnson, Jr., Joseph Harold John-

son, Priscilla Scott and Mike Clemones

are DENIED, and no member of this

panel nor Judge in regular active service

on the Court having requested that the

Court be polled on rehearing en banc,

(Rule 35 Federal Rules of Appellate Pro-

cedure; Local Fifth Circuit Rule 12) the

petitions for rehearing en banc are DE-

NIED.

The petition for panel rehearing filed

by Kathy Hatmaker is DENIED.

Adm. Office, U.S. Courts—West Publishing Company, Saint Paul, Minn.

A-xii

APPENDIX EXHIBIT "Cc"

UNITED STATES OF AMERICA

CRIMINAL

VERSUS ACTION NO.

CR-76-16-R

WILLIAM ALONZO JOHNSON,

et al

ORDER

Presently pending in the above styled

criminal case are the motions for judg-

ment of acquittal of the defendants,

Kathy Hatmaker and Edward LeCompte.

Both defendants were convicted on

Count One of the indictment, which

charges that they entered into a con-

spiracy with other named defendants to

associate in a prostitution ring affecting

interstate commerce, directly or indirectly

conducted through a pattern of racketeering

activities. 18 U.S.C. §1962(c). Both

motions raise the same contentions: (1)

insufficiency of the evidence and (2) a

fatal variance between the indictment and

the proof at trial.. This latter point,

because it is essentially a restatement

of the first ground for judgment of acquittal,

will be considered first.

A "variance" occurs when the evidence

adduced at trial reveals the commission of

a crime but does not substantiate the

allegations of criminal activity alleged

in the indictment. See Berger v. United

States, 295 U.S. 78, 55 S.Ct. 629, 79

L.Ed. 1314 (1935). If this difference be-

tween allegation and evidence is material,

it deprives the defendant of fair warning

A-xiii

of the charges that will be proved against

him and constitutes a "fatal variance."

See Kotteakos v. United States, 328 U.S.

750, 66 &.Ct. i239, 90 L«Ea@ 1557 (1946)..

The indictment in this case charged

Hatmaker and LeCompte with participation

in a Single conspiracy. They argue that,

if the evidence proved any criminal activity

at all, it demonstrated only separate, un-

related conspiracies with the defendant,

William A. "Billy" Johnson, as the common

co-conspirator in each and that, as a re-

sult, the proof of multiple conspiracies

at trial amounted to a fatal variance from

the single conspiracy theory underlying

the indictment.

Although some courts are more inclined

to find prejudice from the mere existence

of variance in a conspiracy trial, see,

e.g., United States v. Bertolotti, 529

F.2d 149 (2nd Cir. 1975); United States v.

Sperling, 506 F. 2d 1323 (2nd Cir. 1974),

the Fifth Circuit Court of Appeals has

adopted a more restrictive view. When

the indictment charges a single conspiracy

and two or more are proved, there is no

fatal variance if the evidence proves

beyond a reasonable doubt that the de-

fendant is guilty of at least one. See

United States v. Wayman, 510 F.2d 1020

(5th Cir. 1975); United States v. Dryden,

423 F.2d 1175 (5th Cir. 1970); Parmenter

v. United States, 279 F.2d 151 (5th Cir.

1960); Smith v. United States, 283 F.2d

245 (5th Cir. 1960); Jolly v. United States,

232 ¥.24 83 (Sth Cir. 1956).

Absent a showing of prejudice, which

is not asserted here, the resolution of

A-xiv

the issue of a fatal variance depends

upon whether the defendants were guilty

of a criminal conspiracy at all. The

variance problem, therefore, is necess-

arily incorporated into the insufficiency

of evidence ground.

In order to support a conspiracy

under 18 U.S.C. §1962(c), there must be

proof of an agreement. Cf. United States

v. Falcone, 311 U.S. 205, 61 S.Ct. 204,

85 L.Ed. 128 (1940). This "meeting of

the minds" need not be express and can

be shown by circumstantial evidence alone.

See United States v. Gomez, 529 F.2d 412

(Sth Cir. 1976). Once the conspiracy has

been established, only slight evidence is

required to link an individual defendant

to the scheme, see United States v. Arteaga-

Limones, 529 F.2d 1183 (5th Cir. 1976);

United States v. Lawson, 523 F.2d 804 (5th

Cir. 1975), and a defendant's personal

stake in accomplishing the object of the

conspiracy is one factor that bears on the

possibility of his participation. See

United States v. Hawes, 529 F.2d 472 (5th

Cir. 1976).

Kathy Hatmaker operated a house of

prostitution in Knoxville, Tennessee.

Although Billy Johnson, the alleged head

of the prostitution ring, occasonally sent

his girls to work out of Hatmaker's resi-

dence, there was testimony that she had

nothing to do with arranging or financing

their transporation to or from her house.1

1/ Mildred Lunsford testified on direct

examination that Hatmaker had once met her

at the bus station in Johnson City, Tennessee.

However, she later admitted to three prior

inconsistent statements on this point and

finally retracted her identification of

Hatmaker.

A-xv

The most damaging testimony to connect

Hatmaker to the conspiracy and the only

other substantive reference to her was pro-

vided by Thelma Lunsford, who contended

during her testimony that Billy Johnson

had called Hatmaker by telephone to arrange

an “appointment" for her in Knoxville,

Tennessee. Because this testimony would

permit, if not compel, the inference that

Hatmaker knew of Johnson's illegal inter-

state activities, the issue of its ad-

missibility is crucial.

Although the fact that a phone call

was made by Johnson is admissible, his

identification of Hatmaker as the other

party to the conversation is hearsay.

Rule 802, Fed.-R.Evid. Since Lunsford

did not testify that she was a party to

the conversation, whether Johnson actually

spoke to Hatmaker depends on his veracity. /

The co-conspirator exception to the rule

is unavailing. While such declarations

are admissible in certain circumstances,

see United States v. Crockett, 514 F. 2d

64 (5th Cir. 1975), there must first be

independent proof that the defendant was

a member of the conspiracy. See United

2/ No similar problem would be presented

if Johnson had testified to and authenticated

his conversation with Hatmaker, Rule 901 (a)

(6), Fed.R.Evid.; cf. United States v.

Romano, 482 F.2d 1183 (5th Cir. 1973); see

also McCormick, Evidence, §226; and no

hearsay problem would be involved. Rule

801(d) (2) (A), Fed.R.Evid.

3/ Rule 801(d) (2) (E), Fed.R.Evid., con-

siders statements of co-conspirators in a

proper case, as not being hearsay.

A-xvi

States v. James, 510 F.2d 546 (5th Cir.

1975); United States v. Perez, 489 F.2d

51 (5th Cir. 1973). Thelma Lunsford's

statements here, however, provide the

only proof to associate Hatmaker with

the conspiracy.4

Consequently, the only facts clearly

proved by the prosecution are that Hat-

maker operated a house of prostitution in

Knoxville and that, on occasion, Johnson's

girls worked for her. From these facts,

a reasonable inference may be drawn that

she had a business relationship with

Johnson. The mere participation in pro-

stitution activities is not a federal

crime. See Twitchell v. United States, 313

F.2d 425 (9th Cir. 1963), vacated on other

grounds sub nom., 376 U.S. 188 (1964).

A similar analysis is mandated in the

4/ It is doubtful that Lunsford's testi-

mony alone would support Hatmaker's con-

viction. Admission of hearsay testimony

without objection is harmless error if

there is sufficient independent evidence

to sustain the defendant's conviction,

e.g., United States v. Anderson, 485 F.2d

239 (5th Cir. 1973), and of the three

separate references to the phone conver-

sations, Hatmaker objected only to the

second. Because these hearsay statements

are the only evidence relating to Hatmaker,

it clearly affects the "substantial

rights" of the defendant and cannot be

used to uphold the verdict. See United

States v. Gomez, supra; United States v.

Rodriguez, 524 F.2d 485 (5th Cir. 1975).

A-xvii

case of Edward LeCompte. He owned a

truckstop in Rogersville, Tennessee and

there was testimony that Johnson sent his

girls there to engage in prostitution.

As was the case with Hatmaker, LeCompte

had nothing to do with arranging trans-

portation to or from his place of business.

Again, the most pertinent information came

from Thelma Lunsford, who stated that she

had observed LeCompte and Johnson dis-

cussing prostitution.

Based on the admissible evidence

against Hatmaker and LeCompte, the jury

could reasonably draw the inference

that both defendants were involved with

Johnson in prostitution activities.

What is required to support their con-

victions, however, is further proof of

a knowing association with the inter-

state prostitution scheme and the evidence

at the trial does not permit this

further inference. Cf. United States v.

Bloom, 482 F.2d 1162 (8th Cir. 1973).

See also Direct Sales Co., Inc. v. United

States, 319 U.5. 703, 63.8.Ct. 1265, 87

L.Ed. 1674 (1943).

The basic conspiracy, which

the government spent a great

deal of time proving, was

not a conspiracy to commit

federal offenses, with which

(the defendant) is charged.

Some of the co-conspirators

may have intended to import

out of state girls, and may

have done so. But the basic

conspiracy could have been

carried on without these

activities, and we do not

think that the evidence

sufficiently ties (the

defendant) in with a

participation in, or a

knowledge of or a purpose

to commit the federal

offenses that must be

SNOW. « 2 se 3 +

Twitchell v. United States, supra at 429.

Accordingly, the motions of Kathy

Hatmaker and Edward LeCompte for judgment

of acquittal are granted.

So ordered this 17 day of September,

1979.

Albert J. Henderson, Jr. /s/

Judge, United States District

Court for the Northern District

of Georgia

APPENDIX EXHIBIT "D" A-xix

% UNITED STATES of America,

Plaintiff-Appellee,

Edward Raymond LeCOMPTE and

Kathy Hatmaker,

Defendants- Appellants.

No. 78-5780.

United States Court of Appeals,

Fifth Circuit.

July 18, 1979.

After remand from prior appeals,

577 F.2d 1247 and 582 F.2d 1373, defend-

ants were convicted in the United States

District Court for the Northern District

of Georgia, at Rome, Albert J. Hender-

son, Jr., J., of conspiracy in connection

with the operation of a large multistate

prostitution ring, and they again appeal-

ed. The Court of Appeals held, inter

alia, that the trial court did not commit

reversible error in refusing to instruct on

the difference between single and multi-

ple conspiracies.

Affirmed.

1. Criminal Law <>1173.2(1)

Where evidence in prosecution for

conspiracy in connection with operation

of interstate prostitution ring showed

that conspiracy was single-purpose and

continuously ongoing undertaking, trial

court did not commit reversible error in

refusing to instruct jury on difference

between single and multiple conspiracies.

18 U.S.C.A. § 1962(c).

2. Conspiracy @=48.2(2)

Even though evidence in conspiracy

prosecution showed that some defend-

ants did not take part in beatings, pistol

whippings and threats committed by oth-

UNITED STATES v. LeCOMPTE 6306

er defendants, trial court properly refus-

ed requested charge that acts of other

defendants could not be chargeable or

imputed to appealing defendants since, if

such acts were done in furtherance of

conspiracy and appealing defendants

were members of such conspiracy, law

made latter defendants responsible for

acts of their coconspirators; court ade-

‘= quately protected appealing defendants’

rights by instructing jury that it should

consider evidence separately as to each

defendant and each count. 18 U.S.C.A.

§ 1962(c).

3. Criminal Law <=42

Record in prosecution for conspiracy

in connection with operation of inter-

statc prostitution ring did not support

defendant’s contention that she should

receive equitable immunity on basis of

representations made by United States

Attorney in another district, to effect

that she would not be indicted in that

district if she gave statement; record

likewise refuted contention that such

statement was improperly “used” in la-

ter prosecution of defendant in Northern

District of Georgia. 18 U.S.C.A.

§ 1962(c).

Appeals from the United States Dis-

trict Court for the Northern District of

Georgia.

Before TUTTLE, GODBOLD and RU-

BIN, Circuit Judges.

PER CURIAM:

The present appellants, LeCompte and

Hatmaker, and _ several co-defendants

were charged with violating several stat-

utes in the operation of a large, multi-

state prostitution ring. The motions of

these appellants for judgment of acquit-

tal were granted at trial on all counts

Synopses, Syllabi and Key Number Classification

The Synopses, Syllabi and Key Number Classifi-

cation constitute no part of the opinion of the court.

A-xx

6307 UNITED STATES v. LeCOMPTE

except Count One, charging a RICO con-

spiracy under i8 U.S.C. § 1962(c). The

jury found appellants and the co-defend-

ants guilty on this count, and the court

granted appellants’ motions for judg-

ment of acquittal notwithstanding the

verdict. On appeal by all defendants

and cross-appeal by the government, we

reversed as to LeCompte and Hatmaker

and reinstated the jury’s verdict finding

them guilty under Count One. U. S. v.

Clemones, 577 F.2d 1247 (CA5), modified,

582 F.2d 1373 (CA5, 1978). They now

appeal from the judgments of conviction

entered on remand.

{1} Both appellants contend that the

court reversibly erred in refusing to in-

struct on the difference between single

and multiple conspiracies. In our earlier

decision we described the conspiracy in

detail and held that it was “a single-pur-

pose and continuously ongoing undertak-

ing to operate a multi-state prostitution

enterprise,” 577 F.2d 1253. The multi-

ple-single point was there raised in terms

of variance. It is raised here in terms of

failure to instruct. But the facts that

compelled our previous conclusion that

this was a single conspiracy require us to

conclude now that no instruction was re-

quired. Nothing is presented to us that

makes a different decision appropriate in

this appeal. The trial court did not err

to the prejudice of these two defendants

by refusing to instruct the jury on the

difference between single and multiple

conspiracies.

[2] Both appellants assert that they

were the victims of devastating spillover

from testimony describing acts of co-de-

fendants, especially the prostitution ring-

leader Billy Johnson, including beatings,

pistol whippings, threats of killing, and

other unsavory activities in which appel-

lants were not involved. The evidence

against appellants is not as strong as

that against other defendants and they

were not shown to be involved in the

foregoing violent acts. But the Consti-

tution does not require that in a charge

of group crime a trial be free of any

prejudice but only that the poten.ial for

transferability of guilt be minimized to

the extent possible. U.S. v. Elliott, 571

F.2d 880 (CA5, 1978). This standard was

met here. The court properly refused a

requested charge that the acts of Billy

Johnson could not be “chargeable or im-

puted” to the other defendants. If the

acts were done in furtherance of the

conspiracy and appellants were members

of the conspiracy, the law makes appel-

lants responsible for the acts however

repugnant. The court adequately pro-

tected appellants’ rights by instructing

the jury that it should consider the evi-

dence separately as to each defendant

and each count.

[3] Hatmaker makes an_ individual

contention that the indictment should

have been dismissed as to her because

she was entitled to equitable immunity

arising from events that occurred in the

Southern District of Indiana. She gave

an incriminating statement in the South-

ern District of Indiana against a person

named Feinstein, not a defendant in this

case and charged there with prostitution

activities. She did so induced by repre-

sentations given by a U. S. Attorney in

the Southern District of Indiana. Ac-

cording to the U. S. Attorney, Hatmaker

was only told that she would not be in-

dicted in the Southern District of Indi-

ana. Later she was indicted in the

Northern District of Georgia in the

present case, and she insists that the

government breached its agreement with

her by “using” her Indiana statement in

this:case. Hatmaker does not quite say

that she was promised that she would

not be indicted anywhere on prostitu-

A-xxi

UNITED STATES v. LeCOMPTE 6308

tion-related activities; she seems to say

that the exact scope of the promise was

unclear and that in such situations the

government may not use against her in

any way the statement she gave and

that the statement revealed names of

persons who were witnesses in the Geor-

gia case. No plea bargain is involved.

Hatmaker was simply a witness in Indi-

ana. Pretermitting whether immunity

based upon giving testimony can ever be

conferred by any agency other than the

court,! Hatmaker has not proved that

the U. S. Attorney in Indiana promised

her immunity from anything beyond be-

ing indicted in the case there. Nor does

it appear that the statement she gave in

Indiana was “used” in this case. It came

into possession of an FBI agent who had

investigated the Georgia case, but after

he had learned the names of witnesses,

had interviewed them, and they had tes-

tified before the grand jury. It came

into possession of the prosecuting attor-

ney shortly before the grand jury re-

turned the indictment. Nothing indi-

cates that the statement was used by the

grand jury, and it was not used at trial.

Assuming the government was required

to prove that the Georgia indictment

was based upon information independent

of the Indiana statement, we think it did

so.

“The convictions are AFFIRMED.

1. See U. S. v. Donahey, 529 F.2d 831. 832 (CA5, 1976).

Adm. Office, U.S. Courts—West Publishing Company, Saint Paul, Minn.

A-xxii

APPENDIX EXHIBIT "E"

NUMBER 78-5780

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA,

PLAINTIFF F-APPELLEE,

Vv.

EDWARD RAYMOND LECOMPTE AND

KATHY HATMAKER,

DEFENDANTS-APPELLANTS

MOTION FOR REHEARING AND FOR

REHEARING EN BANC

ON BEHALF OF DEFENDANT

EDWARD RAYMOND LECOMPTE

A. CECIL PALMOUR

COOK & PALMOUR

Post Office Box 370

Summerville GA 30747

COUNSEL FOR DEFENDANT-

APPELLANT LECOMPTE

A-xxiii

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA,

PLAINTIFF-APPELLEE

ve NUMBER 78-5780

EDWARD RAYMOND LECOMPTE

and KATHY HATMAKER,

DEFENDANTS-APPELLANTS

I. CERTIFICATE OF COUNSEL

The undersigned, counsel of record for

Defendant-Appellant Edward Raymond LeCompte,

certifies that the following listed party has an

interest in the outcome of this case. These

representations are made in order that Judges

of this'Court may evaluate possible disqualificaton

or recusal pursuant to Local Rule 13(a):

None.

/s/ A. Cecil Palmour

Attorney of Record for

Defendant-Appellant

Edward Raymond LeCompte

A-xxiv

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA,

PLAINTIFF-APPELLEE

Vv. NUMBER 78-5780

EDWARD RAYMOND LECOMPTE

and KATHY HATMAKER,

DEFENDANTS-APPELLANTS

MOTION FOR REHEARING AND FOR

REHEARING EN BANC ON BEHALF OF

DEFENDANT EDWARD RAYMOND LECOMPTE

II, REQUIRED STATEMENT FOR

REHE

I express a belief based on reasoned and

studied professional judgment that the court

inadvertently overlooked the case of United States

v. Malatesta, (5 Cir. March 12, 1979) 590 F.2d

1379, and United States v. James, (5 Cir. Feb. 12,

1979) 590 F.2d 575.

We called the court's attention to these cases

at oral argument, and had briefed it upon this

court's request of March 23, 1979, to comment upon

"relevant intervening decisions that have been

rendered since (our) last brief was filed." (Court's

memo)

The court's opinion here discussed neither

the Malatesta case nor the principle involved. We

attach herewith the memo we furnished the court

on March 26, 1979.

A-xXXxV

We say that LeCompte should have the benefit

of James and Malatesta because this court amended

its opinion in LeCompte on November 6, 1978 (582

F.2d 1373), which was two days prior to its grant of

en banc herein in Malatesta, which was on Nov. 8,

1978 (583 F.2d 748).

James (above) was decided on Feb. 12, 1979.

A circumstance here highly relevant in that the

District Court here did determine "at the end of

the trial" (apropos James, 590 F.2d at 582) that

LeCompte's connection with the conspiracy had not

been established.

The James principle we here urge (regardless

of order of proof) is that the Judge determine the

admissibility of hearsay under the new rules of

evidence (590 F.2d at pp. 578-579). The Judge in

LeCompte's case did make this determination in

ruling upon LeCompte's motion.

Although the District Judge found the

evidence insufficient to connect neither LeCompte

nor Hatmaker to the conspiracy, he did express

adherence to the "slight evidence" rule rejected in

Malatesta (590 F.2d at p. 1382).

The evidence connecting both LeCompte and

Hatmaker to the conspiracy was at most "slight

evidence" and accordingly their acquittals by the

trial judge was appropriate either under James or

Malatesta.

SUMMARY :

LeCompte should have the benefit of James

and Malatesta because his case was under considera-

tion prior to the grant of en banc hearing in

A-xxvi A-xxvii

IN THE UNITED STATES COURT OF APPEALS

Malatesta, and because his case fits these decisions FOR THE FIFTH CIRCUIT

as to acquittal.

UNITED STATES OF AMERICA,

Respectfully , PLAINTIFF-APPELLEE

COOK & PALMOUR, Vs NUMBER 78-5780

Attorneys for Defendant- EDWARD RAYMOND LE COMPTE,

Appellant Edward Raymond DEFENDANT-APPELLANT

LeCompte

MEMORANDUM COMMENTING UPON

By:/s/ A. Cecil Palmour "RELEVANT INTERVENING DECISIONS . .

RENDERED SINCE (OUR) LAST BRIEF

COOK & PALMOUR WAS FILED"

Attorneys at Law

Post Office Box 370 Later cases which show merits of

Summerville GA 30747 ose LeCompte's contention on the

question of conspiratorial connection.

CERTIFICATE OF SERVICE

On March 12, 1979, this Court "banished"

I have served the Government with the above : the "slight evidence" rule theretofore

and foregoing motion for rehearing and for re- H applied in conspiracy cases "as to all

hearing en banc, by mailing a copy of same to Mr. f appeals hereafter to be decided by this

William L. Harper, United States Attorney, 428 U. S. { court." U.S. V. Malatesta (No. 77-5032,

Courthouse, 56 Forsyth Street, N.W., Atlanta, : slip opinion, p. 3403, 3406).

Georgia 30303. ;

f This is a "Slight evidence" case be-

This 26th day of July, 1979. cause the trial judge here directed acquittal,

even though he applied the "sligh’*: evidence"

/s/ A. Cecil Palmour test (R. , Trial Judge's order). This

Of Counsel for Defendant- Court reversed in U.S. v. LeCompte, et al.,

Appellant Edward Raymond 577 F.2d 1247 (Aug.1978) stating that "once

LeCompte ; the existence of a conspiracy is shown only

Slight evidence is required to warrant sub-

mitting to the jury the question of a

particular defendant's membership". (Id.,

at p. 1255) (emphasis ours).

On petition for re-hearing en banc

the above-quoted language was deleted (Nov.

6, 1978), without further comment.

A-xxviii

One critical aspect of this case was

the Government's contention that certain

statements of alleged co-conspirators were

subject to jury consideration under the new

Federal Rules of Evidence (Gov't. brf. pp.

87-92). It was there argued that this

evidence caught Hatmaker and LeCompte in

the conspiratorial net (at pp. 90, 91, 92).

U.S. v. James, (nos. 77-5188, 77-5271, slip

Opinion Feb. 12, 1979, at pp. 3257 and 3259 -

5th Cir.) establishes the proposition

[overruling U.S. v. Appollo, 476 F.2d 156

(1973)] that the initial determination

should be made by the Judge. While the

district judge's conclusion here was

made in the order directing verdicts, his

decision was "whether a conspiracy existed

and whether the defendants and declarant

were members of it". James ‘above, slip op.,

div. 4, at p. 3259).

""As a preliminary matter,

there must be substantial indepen-

dent evidence of a conspiracy, at

least enough to take the question

to the jury. Whether the standard

has been satisfied is a question

of admissibility of evidence to

be decided by the trial judge.'"

James (above), slip op., at p. 3260,

quoting from U.S. v. Nixon, 418 U.S.

683, 94 S.Ct. 3090, 41 L.Ed.2d 1039

(1974) (emphasis by the court).

James also discusses the order of

proof, designed to avoid prejudice to

defendant (Id., at pp. 3261-3262). How-

ever, an order made "At the End of Trial"

is also discussed (Id., at p. 3262). If

such evidence has not been connected up at

the end of the trial, there seems no objec-

tion to the Judge's decision taking the

A-xxix

form of a directed verdict.

While the decisions in Malatesta and

in James do not facially require retro-

activity as to LeCompte, several things

suggest the propriety of giving considera-

tion to LeCompte's circumstance:

1) .This is the same case, and

appellate decision has not

become final.

2) The district court did not

here give the "slight evidence"

instruction to the jury, and

hence LeCompte was not ina

position requiring him to

except to such as an improper

instruction under Hall (525

F.2d 1254) or Marionneau (514

F.2d 1249).

3) This case was originally before

the Court at the same time en

banc hearing was granted in

Malatesta, 583 F.2d 748. (This

Court's supplementary opinion

deleted the "slight evidence"

language on Nov. 6, 1978, and

granted en banc in Malatesta on

Nov. 8, 1978.) When this Court

denied LeCompte's petition for

rehearing (on Nov. 6, 1978), in

which it deleted the "slight

evidence" language of its original

opinion, did it not then have in

mind the potential inapplicability

of this rule? Even though the

"slight evidence" rule was not

discarded until March 12, 1979,

it was discarded in the Malatesta

case, following its decision of

Nov. 8, 1978, to hear en banc.

A-xxx

The coincidence of the con-

Sideration of "slight evidence"

in LeCompte and Malatesta, we

respectfully suggest, makes

appropriate its application in

LeCompte.

This Court in LeCompte did not

state whether it applied the

"slight" or "substantial"

evidence test.

The common understanding in the

Circuit that the "slight evidence"

test was appropriate (see con-

currence of Judge Coleman, 583

F.2d at pp. 762, 763) justified

defendant's failure to raise the

question. U.S. v. Morales (5 Cir.

1973) 477 F.2d 1309, 1315; U.S. v.

Freeman (D.C. 1975) 514 F.2d 1314.

If the District Court had applied

his conclusion (as to the insuffi-

ciency of the evidence to establish

conspiratorial connection) in the

context of James (above) rather

than upon motion for acquittal, a

different review question would

be presented, upon the same eviden-

tiary consideration.

The Court's function does not rule

out consideration of oversights

which are serious. Western Pac.R.

Corp. v. WPR Co., 345 U.S. 247,

73 S.Ct. 656 (1952). We especially

refer to LeCompte's contention

made here and in original appeal

of lack of evidence of conspira-

torial connection (the conclusion

A-Xxxxi

reached by the District Court).

Respectfully submitted,

COOK & PALMOUR

Attorneys for

Defendant-Appellant

Edward Raymond LeCompte

BY: /s/ A. Cecil Palmour

A. Cecil Palmour

COOK & PALMOUR

Attorneys at Law

Post Office Box 370

Summerville GA 30747

A-xxxti

APPENDIX EXHIBIT "F"

Law Offices

COOK & PALMOUR

Summerville, Georgia 30747

September 6, 1979

Hon. Edward W. Wadsworth, Clerk

United States Court of Appeals

Fifth Circuit

600 Camp Street

New Orleans, Louisiana 70130 .

Re: No. 78-5780, United States of America,

Plaintiff-Appellee, v. Edward Raymond

LeCompte, Defendant-Appellant

Dear Mr. Wadsworth:

Please consider this as an application to file

supplemental memorandum upon our contention

that this Court should apply to Appellant LeCompte

this Court's decision in United States v. Malatesta,

(5 Cir. Mar. 12, 1979) 590 F.2d 1379.

We wish to call to the Court's attention the case of

Hankerson v. State of North Carolina, 97 S.Ct.

2339 (1977), decided June 17, 1977.

We believe that the Supreme Court in this case has

supported the position we have already taken here:

"When the Court declines to hold a new

constitutional rule retroactive, one

chance beneficiary - the lucky individual

whose case was chosen as the occasion for

announcing the new principle - enjoys

retroactive application, while others

similarly situated have their claims

adjudicated under the old doctrine. This

hardly comports with the ideal of 'adminis-

tration of justice with an even hand'.

Desist v. United States, supra, at 255

(Douglas, J., dissenting).

A-xxxiii

Not only this language, but the decision itself,

affirms this principle.

Yours very truly,

A. CECIL PALMOUR

ACP /ab

ec: Mr. William L. Harper

United States Attorney

428 U. S. Courthouse

56 Forsyth Street, N.W.

Atlanta, Georgia 30303

A-xxxiv

APPENDIX EXHIBIT "G"

[Godbold]

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

U. S. COURT OF APPEALS

FILED

NOV 14 1979

GILBERT F. GANUCHEAU

CLERK

NO. 78-5780

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDWARD RAYMOND LE COMPTE, and

KATHY HATMAKER,

Defendants-Appeliants.

Appeals from the United States District Court

for the Northern District of Georgia

ON PETITION FOR REHEARING AND

PETITION FOR REHEARING EN BANC

(Opinion 7-18-79 _, 5Cir., 197, _—‘F.2d__).

(November 14, 1979)

Before TUTTLE, GODBOLD and RUBIN,

Circuit Judges.

A-XXXV

PER CURIAM:

The Petitions for Rehearing of appellants

Kathy Hatmaker and Edward Raymond Le Compte

are DENIED, and no member of this panel nor Judge

in regular active service on the court having

requested that the court be polled on rehearing

en banc, (Rule 35 Federal Rules of Appellate

Procedure; Local Fifth Circuit Rule 16) the Petition

for Rehearing En Banc of appellant Edward Raymond

LeCompte is DENIED.

ENTERED FOR THE COURT:

/s/_ John C. Godbold

United States Circuit Judge

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