# Opposition Brief — Kotakes v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_1163%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1971 - **Citation:** 403 U.S. 919 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_1163%3A2. Public record. Not legal advice.