Opposition Brief — Kotakes v. United States

Gu the Supreme Court of the Binited States

OctToBER TERM, 1970

No. 1629

Ross KOTAKES, PETITIONER

Vv.

UNITED STATES OF AMERICA

é

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

In a two-count indictment filed in the United

States District Court for the Northern District of

Indiana, petitioner was charged with knowingly

transporting one Marian Chadwick from Gary, Indi-

ana, to Louisville, Kentucky, for purposes of prosti-

tution on January 7, 1968 (count 1), and with trans-

porting the same woman from Louisville back to Gary

for the same unlawful purpose on January 12, 1968

(count 2), in violation of the Mann Act, 18 U.S.C.

2421. After a jury trial, petitioner was acquitted on

count 1 and convicted on count 2. He was sentenced

to two years’ imprisonment, subject to the parole

eligibility provisions of 18 U.S.C. 4208(a)(2). The

court of appeals affirmed (Pet. App. A).

(1)

425-976—71

2

Petitioner argues here that he is entitled to ac-

quittal as a matter of law (Pet. 20-30). He asserts

that the count 2 transportation back from Louisville

to Gary must be deemed merely a return journey,

and that the jury’s acquittal on count 1 bars his

conviction on count 2 under Mortensen v. United States,

322 U.S. 369. The facts of this case (see Pet. App. 2-6),

however, distinguish it from Mortensen. Under the

evidence the jury could infer that Miss Chadwick did

not voluntarily travel with petitioner, but rather was

compelled to do so. Thus, even if petitioner made the

count 1 trip without the requisite unlawful purpose, the

return (count 2) trip was separate. The evidence indi-

cates that petitioner returned Miss Chadwick to Gary,

not simply to bring her home, but because he intended

to have her available to work as a prostitute for him

there—the statutorily proscribed purpose. This was not

an innocent vaeation trip, as in Mortensen.

Petitioner further claims that his acquittal on

count 1 rendered insufficient the proof of his guilt

under count 2 (Pet. 31-35). But in this case the

indictment charged two different offenses as to which

the evidence differed. Thus the acquittal on count 1

did not, as petitioner contends, involve facts essential

! to the count 2 conviction. Moreover, even if the ver-

dicts here are inconsistent, the count 2 conviction

should be sustained where, as in this case, sufficient

j evidence supports it; the inconsistency is deemedte——__

| result from the exercise by the jury of its historic

power of lenity. Dunn v. United States, 284 U.S.

3

390; * United States v. Carbone, 378 F. 2d 420, 422-

423 (C.A. 2), certiorari denied, 389 U.S. 914; see

also United States v. Dotterweich, 320 U.S. 277, 279.

It is therefore respectfully submitted that the peti-

tion for a writ of certiorari should be denied.

Erwin N. Griswo.p,

Solicitor General.

May 1971.

? Petitioner quotes the Dunn opinion to the opposite: effect:

(Pet. 33-34), representing that the quotation is from “Justice

Holmes speaking for the Court.” In fact the quotations are

from the dissenting opinion of Mr. Justice Butler. Mr. Justice

Holmes wrote the majority opinion, which holds that an

inconsistent jury verdict does not require acquittal.

U.S. GOVERNMENT PRINTING OFFICE: 1971