Opposition Brief — Amadio v. United States

Page

triiddtbpmigehetnkuscdéunn seuweceese 1

Retains Gaia ch at hilich ented mes aiie Geaiiniaaneiah diem evemeds 1

iis aoe aebeeaineweaieneasine 2

iipnsdndewehdaneoransevewenenaes 2

ie hpbiebisdcavandedenmacenstasesoress 4

ia. oleh wadhandeedamenduon 7

iden ekededuued penn wehwasdhdn weedeat 16

CITATIONS

Cases:

Athanasaw v. United Staies, 227 U.S. 326__-_-- 8-9

Banks v. United States, 204 F. 2d 666, certiorari

| eS ere 14

Beyer v. United States, 251 Fed. 39-__--.....--- 9

Burgess v. United States, 294 Fed. 1002____-_--_-- 9

Fields v. United States, 164 F. 2d 97, certiorari

8 I ee eS Sra 13

Pine v. United States, 135 F. 2d 353, certiorari

| CO SS 8 eee 9

| Inited States v. Brand, 229 Fed. 847... ..------ 9

United States v. Lewis, 110 F. 2d 460, certiorari

i te i Ob Ol indbedoesmarecdtenecews 9

Weinbaum v. United States, 184 F. 2d 330_____- 13

Zimberg v. United States, 142 F. 2d 132, certiorari

Sh Ph Sil. cuneuubedatunedwes 14

Statutes:

RE A Ne alee erm 2

it ti dogs cmmbsvenconsdibededases 3

~—

Inthe Suyreme Court of the Wnited States

OcroserR TERM, 1954

No. 416

ANTHONY G. ‘‘AMos’’ AMADIO, PETITIONER

Vv.

Unirep States oF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE BREV-

ENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The majority and dissenting opinions in the

Court of Appeals (Pet. 21-42) are reported at

215 F. 2d 607 and 615.

JURISDICTION

The judgment of the Court of Appeals was

entered on August 30, 1954, and a petition for

a rehearing was denied on September 21, 1954

(Pet. 2). The petition for a writ of certiorari

was filed on October 19, 1954. The jurisdiction of

this Court is invoked under 28 U. S. C. 1254 (1).

(1)

PT

OF SEP Oa Ses

oo

SRR Y Spr

—

2

QUESTIONS PRESENTED

1. Whether the indictment, which alleged un-

lawful transportation of one girl, and the induce-

ment of another to travel, in interstate commerce

‘“‘for an immoral purpose, to wit, to place her in

employment and environment in Calumet City,

Illinois, which would tend to cause her to give

herself up to a condition of debauchery which

would eventually and naturally lead to a course

of sexual immoyality,’’ charged offenses under

the Mann Act.

2. Whether there was sufficient evidence of

petitioner’s intent to violate the statute.

3. Whether the trial court abused its discretion

in denying pétitioner’s motion for a bill of par-

ticulars.

4. Whether the circumstances under which two

government witnesses refused to answer questions

on the ground of self-incrimination deprived peti-

tioner of a fair trial.

5. Whether petitioner was prejudiced by vari-

ous rulings on the admission of evidence.

STATUTES INVOLVED

18 U. S. C. 2421 provides in pertinent part:

Whoever knowingly transports in inter-

state or foreign commerce, or in the Dis-

trict of Columbia or in any Territory or

Possession of the United States, any

woman or girl for the purpose of prostitu-

tion or debauchery, or for any other im-

3

moral purpose, or with the intent and pur-

pose to induce, entice, or compel such

woman or girl to become a prostitute or to

give herself up to debauchery, or to engage

in any other immoral practice; * * *

* + * + *

Shall be fined not more than $5,000 or

imprisoned not more than five years, or

both.

18 U. S. C. 2422 provides:

Whoever knowingly persuades, induces,

entices, or coerces any woman or girl to go

from one place to another in interstate or

foreign commerce, or in the District of

Columbia or in any Territory or Possession

of the United States, for the purpose of

prostitution or debauchery, or for any

other immoral purpose, or with the intent

and purpose on the part of such person

that such woman or girl shall engage in the

practice of prostitution or debauchery, or

any other immoral practice, whether with

or without her consent, and thereby know-

ingly causes such woman or girl to go and

to be earried or transported as a passenger

upon the line or route of any common ear-

rier or carriers in interstate or foreign

commerce, or in the District of Columbia

or in any Territory or Possession of the

United States, shall be fined not more than

$5,000 or imprisoned not more than five

years, or both.

4

STATEMENT

On October 3, 1953, following a trial by jury,

petitioner was convicted, in the United States

District Court for the Southern District of Indi-

ana, on counts I and IV of a five-count indictment,

drawn under the Mann Act (R. 3, 472, 4-6).

Count I charged that on August 30, 1952, peti-

tioner ‘‘did unlawfully and knowingly induce”

and cause Frieda West to travel, as a passenger

upon a common carrier, from Evansville, Indiana

to Chicago Heights, Illinois, “for an immoral

purpose, to wit, to place her in employment and

environment in Calumet City, Illinois, which

would tend to cause her to give herself up to a

condition of debauchery which would eventually

and naturally lead to a course of sexual immoral-

ity,”’ in violation of 18 U. S. C. 2422 (R. 4; Pet.

46). Count IV charged that on August 16, 1952,

petitioner and Grover Craig, in violation of 18

U. S. C. 2421, “did unlawfully and knowingly

transport Mary Katherine Hamilton’ from

#vansville, Indiana to Calumet City, Lilinois,

“for an immoral purpose,” described in the same

terms as in count I (R. 5-6; Pet. 47-48). Peti-

tioner was sentenced to concurrent terms of three

years’ imprisonment on each of the two counts

(R. 3, 473). On appeal, the judgment of convie-

5

tion was affirmed by a divided court (Pet. 21,

37).

The evidence to support the conviction may be

summarized as follows:

Petitioner was the owner of a tavern on State

Street in Calumet City, [llinois, known as the

Derby Club (R. 337-338). The establishment

was located in a two-block seetion which included

26 taverns and night clubs (R. 47, 158, 159, 167-

168). Like other taverns in the area (se R. 165-

167), petitioner employed “B” girls to solicit

drinks for themselves (in reality colored water)

from men customers. The girls received com-

missions on the drinks sold, with a guaranteed

salary of $40 per week, less $10 for lodging (R. 34,

42,73,145). The place was merely a large room with

a bar, a band stand and booths (R. 37, 147). The

back booths were dimly lighted, and if girls took

men back there, ‘‘double shots’’ had to be ordered

(R. 38, 39, 130, 147). Petitioner told one of the girls

that the back booths were ‘‘where the guys ean feel

around”? (R. 130).

The girls employed by petitioner were housed

above another tavern known as the Four Aces

(R. 47, 56-57, 73, 79, 128), in a building owned

‘Craig, who was tried together with petitioner and con-

victed on count IV, did not seek a review of his conviction,

upon which he was sentenced to imprisonment for one year

(R. 3, 474).

by petitioner and operated by his brother (R,

337-338). In walking to these sleeping quarters

from the Derby Club it was necessary to pass

the other taverns and night clubs (R. 51). Most

of the shows were ‘‘strip-tease’’ acts (R. 167-

168), and the signs emphasized that they had

‘‘girl’”’ shows (Exs. 1 and 2, R. 50). Petitioner

gave some of his girl employees money to see

the shows in the area (R. 131-132, 145). He told

one that she could “‘learn lots fast’’ (R. 149),

Petitioner, who had some interests in oil wells

near Evansville, Indiana, made trips to that city

where his nephew Craig lived (R. 30, 337). He

told Craig that if at any time Craig found a

girl who wanted to come, he would give him the

money for a ticket to send her up (R. 383-384),

Mary Katherine Hamilton, whose transporta-

tion is the basis of count IV of the indictment,

lived in Evansville and knew Craig. In the sum-

mer of 1952, when she was fifteen years old, she

told Craig she wanted a job (R. 30). Craig in-

troduced her to petitioner, who told her that she

could have a job as a waitress in Calumet City

if she had a statement from her mother that

she was 18 years old (R. 30-31). Petitioner

wrote out a note, and her mother signed it (R. 31).

She then drove to Calumet City with petitioner

in his car (R. 31-32), and was put to work

as a “‘B”’ girl (R. 32-33). The woman bartender

at petitioner’s club told her to get all the drinks

—

= »

she could (R. 35). Later the bartender suggested

that she could make money by taking “guys out’’

(R. 36). During her third week at the club,

Craig followed her to her room and tried to have

sexual intercourse with her (R. 45-46). A few

days later petitioner forced her to have inter-

course with him (R. 46-47). He told her ‘he

could make dates’? for her with oil field workers

and she could make quite a bit of money that |

way (R. 50, 70).

Frieda West, the girl named in count I, was

asked by Craig if she wanted to work at the

Derby Club in Calumet City as a hostess (R. 71-

72). Craig sent her and two other girls by train

to Chicago Heights, where petitioner picked them

up and drove them to the Four Aces (R. 73,

377). They were employed as ‘‘B” girls (R. 73).

The woman bartender told Freida that if she would

come to the club during the day, she would show

her how te make more money than she made

as a “B” girl, that there was a day bed in the

back room of the club, and that whatever was

earned would be shared ‘‘with the cash register’’

(R. 77). Frieda West stayed only one week in

Calumet City (R. 75). Petitioner drove her home

and asked her to return, but she refused (R. 80).

Fo EEN SOOO OE A OLED A CLOTTED: NOT EIR INCE. TEST SS ERNE. IN AT CRE

ARGUMENT

1. Petitioner contends (Pet. 3, 13-14) that the f

indictment failed to charge a federal offense, in é

that the immoral purpose alleged—the placing of

321801—54——-2 '

i

8

a girl ‘‘in employment and environment * * *

which would tend to cause her to give herself up

to a condition of debauchery which would even-

tually and naturally lead to a course of sexual

immorality’’—is not within the Mann Act. That

contention was in effect rejected by this Court

three years after enactment of the Mann Act in

Athanasaw v. United States, 227 U. S. 326. In

that case, under an indictment alleging the trans-

portation of a girl for ‘‘the purpos: of debauch-

ery’’ or ‘‘to give herself up to debauchery,” this

Court upheld the trial court’s charge, from which

the descriptive language in the indictment in the

instant case was extracted almost verbatim, that

the jury should determine ‘‘whether the employ-

ment to which the defendants called the girl

[chorus girl] and the influences with which they

surrounded her tended ‘to induce her to give her-

self up to a condition of debauchery which even-

tually and naturally would lead to a course of

immorality sexually.’’’ Since proof of such an

intent was held to fulfill the statutory require-

ment, the detailing of such an intent to add spee-

ificity to the general charge in an indictment

cannot be considered to detract from the effective-

ness of the indictment. Furthermore, this Court

endorsed the views of the trial court in that the

guilt of the defendants did not ‘depend upon

having the intent themselves to debauch the girl

or to intend that some one else should do so,”

9

hecause “‘the statute had a more comprehensive

prohibition and was designed to reach acts which

might ultimately lead to that phase of debauchery

which consisted in ‘sexual actions.’’’ 227 U. S.

at 332.

In 1943, the petition for certiorari in Pine v.

United States, 135 F, 2d 353 (C. A. 5), certiorari

denied, 320 U. S. 740 (involving allegations of

immoral purpose almost exactly the same as those

in the instant case) specifically requested this

Court to overrule the Athanasaw case (No. 111,

O. T. 1943). Other lower federal courts have also

sustained convictions on the theory of the instant

indictment. United States v. Lewis, 110 F. 2d

460 (C. A. 7), certiorari denied, 310 U. S. 634;

Burgess v. United States, 294 Fed. 1002 (C. A.

D. C.) ; Beyer v. United States, 251 Fed. 39 (C. A.

9); United States v. Brand, 229 Fed. 847 (S. D.

| em

2. Petitioner claims (Pet. 15-16) that there was

not sufficient proof of his knowledge of the im-

moral elements surrounding the girls’ place of

employment and living quarters. As appears

from the facts related above (supra pp. 5-7), there

is sufficient evidence to show not only petitioner’s

knowledge but his contribution to the immorality

of the Derby Club. The jury, by its verdict,

evidently rejected his disclaimer of responsibility

therefor. His admitted purpose to employ the

girls in that particular, known environment, was

Sw ae errr we

ali scale

a

10 Pe

therefore sufficient to support the jury’s finding

that petitioner transported them for employment

in an immoral environment, and consequently, for

an immoral purpose within the purview of the

statute. As the court below stated (Pet. 31) :

*** Both the place of employment

and the place of habitation of the girls

mentioned in counts I and IV of the indict-

ment were located in the very midst of a

concentrated area of vicious sexual im-

morality. Defendant saw to it that these

girls would learn about their environment.

He supplied them with money to attend the

night clubs, nineteen of which featured

entertainment primarily of a sexual nature.

Life as a “‘B girl’’ in defendant’s tavern,

with its surrounding conditions, would not

only tend to cause a girl to give herself up

to a condition of debauchery, which would

eventually and naturally lead to a course of

sexual immorality, but any other result

could not reasonably be expected. * * *

3. Petitioner’s contention (Pet. 19) that he was

prejudiced by the trial court’s refusal to grant

him a bill of particulars is without merit. His

motion for a bill of particulars (R. 8-18) clearly

called for evidentiary matter. Furthermore, as

the majority of the court below pointed out (Pet.

25), the clear language of the indictment with its

particularization of the term ‘immoral purpose,”

supplied petitioner with full details of the

charges. Petitioner did not need a bill of par-

ll

ticulars to determine, as he claims (Pet. 19),

“whether or not he would be faced with the en-

vironment of the place of en\ployment of the girls

named in the indictment or the general area of

Calumet City’’; the only reasonable meaning to

be drawn from the indictment was that the en-

vironment related to the place and its immediate

setting.’

4. To show the environment into which the girls

were brought, the government sought to prove

that acts of prostitution had occurred in the

premises above the Four Aces, a few months after

the girls named in the indictment had left peti-

tioner’s employ (R. 107-110). The man involved,

Geno Sarbo, stated he could not remember the

incident about which he was questioned and could

not remember giving a statement to the F. B. I.

(R. 107-108). The court permitted the govern-

ment to treat him as a hostile witness and to in-

quire as to specific statements to the F. B. I. ad-

mitting sexual relations with Patricia Swartz

above the Four Aces (R. 107-108). The witness

* The trial court did not err, as petitioner asserts (Pet. 6),

in refusing to give the jury certain instructions requested by

petitioner (R. 464, 465-471). Requested instruction No. 7

(R. 465) was given by the trial court verbatim (R. 425).

Requested instructions, Nos. 8, 20, 26, 30, 62, 64, 65 (R. 466,

467-468, 469, 470-471), were substantially covered by the

charge given (R. 421-422, 423, 427,428). Requested instruc-

tions, Nos. 10, 11, 12, 15, 24, 32, 60, 61 (R. 466-467, 468, 469)

were either irrelevant to the issues involved or were couched

in such general terms as to be misleading.

ARP E ME «

—

12

claimed the privilege against self-incrimination

(R. 109-110). Upon examination by the defense,

Sarbo testified that the day before he was called

to testify he was advised by the prosecuting attor-

ney that all he had to do at the trial was to “tell

the truth about matters pertinent to this ease” and

that “if you wanted to claim immunity to ask the

Judge and if the Judge told you to answer, then

you would, but otherwise you were claiming that”

(R. 111-112, 110).

The girl involved also claimed the privilege

(R. 115). In the discussion that followed out

of the presence of the jury the court raised some

question as to whether the incidents were not too

remote from the dates alleged in the indictment

(R. 119-123). The government agreed to with-

draw the witness until a foundation was laid

(R. 123). Subsequently, after a witness had tes-

tified to the general atmosphere in the two blocks

of Calumet City in 1952 and the early part of

1953 (R. 162-166), and one Juanita Cooper had

testified that she engaged in prostitution above

the Four Aces in January 1953 (R. 182-185),

the government recalled Patricia Swartz. She

again claimed her privilege and was sustained

by the trial court (R. 196). Asked whether she

had made previous statements to the F. B. L

she said she had repudiated her first statement

in her second (R. 193, 196-197). The govern-

ment also recalled Sarbo and he again claimed

13

his privilege (R. 201). He testified he did not

remember admitting to the F. B. I. that he had

had relations with girls above the Four Aces

(R. 202-203).

An F. B. I. agent testified that in an inter-

view with Sarbo the latter admitted having inter-

course with Miss Swartz above the Four Aces

in January 1953, and that he had numerous such

relations with other girls in Calumet City in

1952 (R. 205-206). The F. B. I. agent also tes-

tified that, in two separate interviews, Miss

Swartz admitted having intercourse with Sarbo

above the Four Aces in January 1953 (R.

206-207 ).

Although the majority of the court below (Pet.

34) thought that the government must have known

that the witnesses were going to invoke the

privilege, the record does not support this view

as to the first time the witnesses were called.

Since hoth witnesses had made statements to the

F. B. L. and since it was not clear that the

possibility of incrimination related to a federal

offense, the United States attorney, as his state- .

ment to Sarbo shows, properly considered the

matter as one to be passed upon by the judge.

See Weinbaum v. United States, 184 F. 2d 330

(C. A. 9). And since the witnesses did prove on

the stand to be obviously hostile, it was not an

abuse of discretion for the judge to permit them |

k

to be treated as such. See Fields v. United

ee

14

States, 164 F. 2d 97 (C. A. D. C.), certiorari

denied, 332 U. S. 851; Zimberg v. United States,

142 F. 2d 132 (C. A. 1), certiorari denied, 323

U. S. 712; see also Banks v. United States, 204

F. 2d 666 (C. A. 8), certiorari denied, 346

U. 8. 857.

However, in permitting recall of the witnesses

after it was clear that they were going to claim

the privilege and in permitting contradictory tes-

timony as to their admissions, which were rele-

vant only to proof of general environment, the

court permitted the United States attorney to go

rather far afield from the main issues in the case.

Nevertheless, we believe with the court below that

‘the evidence which actually permeated through

the extended and confusing proceedings was very

slight, uncertain and unconvincing. This meager

evidence could not have prejudiced the jury

against the defendant, especially in view of the

fact that there was sufficient competent evidence

in the record to support the verdict’’ (Pet. 35).’

* The Government also called Ann Cresno, who, in answer

to a question whether she had ever been called to perform an

abortion in Calumet City, testified that she once responded

to a telephone call to see a girl, who wanted the witness to

help her (R. 212-213). On motion by petitioner's counsel,

the answer was stricken by the court and the jury instructed

to “disregard it” (R. 214). Upon further examination, the

witness denied that in September 1952 she had been called

to perform an abortion at the Derby Club, or that in 1952

she had several calls in the night club area of Calumet City

(id.). After the witness ndmitted that she had currently

been in petitioner's company, the trial court declared her

ar

15

5. Other evidence to which petitioner objects

was, we believe, properly admitted on the issue of

environment. The testimony of Juanita Cooper

as to committing acts of prostitution in the place

where petitioner’s ““B” girls were housed, al-

though not connected with petitioner, and al-

though relating to a period shortly after the dates

alleged in the indictment, does show the general

atmosphere to which petitioner transported the

girls. An environment of the nature shown here

does not occur instantaneously. Testimony that

no effort was made to evict a woman who came

into petitioner’s club, disrobed herself and asked

customers to buy her drinks (R. 319-221), tended

to show the character of the establishment which

petitioner was running. Evidence that peti-

tioner’s bartender suggested to the girls that they

engage in prostitution was directly relevant to

the issue of environment, the sole purpose for

which it was admitted.

It appears from the record (R. 361) that the

to be a hostile witness (R. 216). Thereupon she was asked

whether she had not previously stated to the F. B. I. that in

1952 she “had been requested on many occasions to perform

abortions on women who worked in Calumet City night

clubs” (R. 217). Petitioner moved for a mistrial, which was :

denied, but the trial court admonished “the jury to disregard

the testimony of this witness—all of it” (R. 218%). In his H

instructions at the close of the case, the judge specifically

instructed the jury “not to pay any attention to any testi-

mony that was stricken out” (R. 429). Under the cireum-

stances, the error in calling this witness was cured,

SO a ee Soar

,

prosecuting attorney, in cross-examining peti-

tioner concerning a disorderly conduct conviction,

was referring to an Amadio who had lived at a

certain address in Chicago. Petitioner denied

that he had ever been convicted or that he had

ever lived in Chicago. This raised a collateral

issue of identity, which had to be resolved by inde-

pendent proof (which the prosecuting attorney

apparently was unable to do) before a record of

a conviction could be admitted to rebut peti-

tioner’s testimony in this respect, if false. Under

such circumstances, it was not improper for the

prosecuting attorney to let the matter rest with

petitioner’s denial of any conviction. There is no

evidence that the prosecuting attorney brought up

the subject of conviction in bad faith. At most,

he made an honest mistake of identity.

CONCLUSION

It is respectfully submitted that the petition

for a writ of certiorari should be denied.

Srwon E. Soserorr,

Solicitor General.

Warren Ouney III,

Assistant Attorney General.

Beatrice KOSENBERG,

Epwarp 8. SzvKELEwicz,

Attorneys.

November, 1954.