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United States v. Kotakes

March 11, 1971


Hastings, Senior Circuit Judge, and Cummings and Kerner, Circuit Judges.

Author: Hastings

HASTINGS, Senior Circuit Judge.

Defendant Ross Kotakes was charged in a two-count indictment with violations of the Mann Act, Title 18, U.S.C.A. ยง 2421.*fn1 In Count I, defendant was charged with knowingly transporting in interstate commerce on January 7, 1968, from Gary, Indiana to Louisville, Kentucky, a woman for the purpose of prostitution, debauchery and other immoral purposes. In Count II, defendant was charged with transporting the same woman back from Louisville to Gary on January 12, 1968, for the same unlawful purposes.

Following a jury trial, defendant was found not guilty on Count I and guilty on Count II. The trial court denied defendant's motion for acquittal on Count II, notwithstanding the jury verdict. Defendant was sentenced to imprisonment for two years*fn2 on judgment of conviction on Count II. He now appeals such judgment and sentence. We affirm.

Grounds asserted for reversal are (1) insufficiency of the evidence to sustain the verdict; (2) invalidity of the verdict as a matter of law; (3) erroneous instructions; and (4) unreasonable delay in commencement of the prosecution.

We have read the entire transcript of the testimony in the trial of this cause in order to determine whether the jury verdict of not guilty under Count I of the indictment, as a matter of law, precludes a guilty verdict under Count II. The district court, in a memorandum opinion, reviewed this question and denied defendant's motion for acquittal notwithstanding the verdict. We agree.

We need not outline the evidence in great detail. Viewing the evidence in the light most favorable to the Government, the jury would have been justified in finding the following narrative established beyond a reasonable doubt.

An 18 year old girl, Marian Chadwick, was transported from Michigan to Gary, Indiana by one Goff in December, 1967, for the purpose of prostitution. Defendant was the owner and operator of the Villardo Hotel in Gary. Goff first had Marian work for him as a prostitute at the Venus Cafe in Gary. She paid over to Goff all of the cash proceeds from her work. About December 23, 1969, Goff registered at the Villardo Hotel and took her with him for the same purpose. Goff had two other prostitutes working there for him, Ruth and Dee Dee. On coming to the Villardo Hotel, for a valuable money consideration paid to him by defendant, Goff transferred his working interest in Marian to defendant. At this time, defendant was living with his prostitute girl friend, Tina, at the Villardo Hotel. Defendant took Tina and Marian on a Christmas vacation trip to Las Vegas, Nevada. On their return, defendant had Marian working for him as a prostitute in the Villardo and took all of her earnings from this activity.

About January 7, 1968, defendant and Goff took their respective prostitutes to Louisville, Kentucky, for the sole and express purpose of working as prostitutes there during a Mobile Home Show convention. Defendant drove his Cadillac from Gary to Louisville and transported with him Tina and Marian, together with Goff and his call girls, Ruth and Dee Dee, and a gambler friend of defendant, John Montagano. The three men rode in the front seat and the four girls in the rear seat. Upon arrival in Louisville, defendant registered at a Holiday Inn motel for a room for himself and his two prostitutes. Goff did the same, and Montagano for himself. All of them were there until January 12, 1968. While there the prostitutes stayed at the motel and were engaged solely in plying their trade, paying their earnings to either defendant or Goff. Defendant paid all expenses for Marian on the trip to Louisville and while in Louisville. During his stay in Louisville, defendant spent some time at the Mobile Home Show and had some future interest in engaging in that business. The record is quite clear that Marian made the trip solely for the purpose of engaging in prostitution and not for vacation or other personal reasons.

On January 12, 1968, defendant drove the same party of seven persons from Louisville back to Gary and paid Marian's expenses. This return trip was made by defendant for the sole and express purpose of having Marian engage in prostitution at the Villardo Hotel in Gary, which she did along with the other girls, paying her earnings to defendant. This continued until about February 14, 1968 when, for a valuable money consideration, defendant transferred Marian and her services to a third "pimp", one James Craft, and she left the Villardo with Craft. We see no need to detail certain corroborating evidence of the activities in Louisville and Gary.

Defendant testified in his own behalf and freely acknowledged Marian's work as a prostitute in Gary and Louisville, but denied that she ever worked for him or gave him her earnings as his prostitute. He testified and contended throughout the trial that his trip to Louisville was concerned solely with his interest in the Mobile Home Show. He denied that he paid Goff anything for Marian's services or that Craft paid him anything for them. In short, defendant testified that Marian's activities were voluntary on her part and that she either kept her earnings or paid them to someone else.

It becomes apparent that the jury exercised its prerogative and discredited defendant's testimony essential to establishing his defense to the charge in Count II. Credibility evaluations and determinations lie within the province of the trier of fact, the jury in this case.

Defendant urges reversal upon the holdings in Mortensen v. United States, 322 U.S. 369, 64 S. Ct. 1037, 88 L. Ed. 1331 (1944) and United States v. Ross, 2 Cir., 257 F.2d 292 (1958). Such reliance is misplaced because each case is readily distinguishable on its facts.

In Mortensen, petitioners, a man and wife, operated a house of prostitution in Nebraska. They took two girls, who had been living at their house as prostitutes, with them on a trip to Utah, which was planned and consummated purely as a vacation. Upon their return, the girls resumed prostitution at petitioners' house. The Court, in reversing the judgment of conviction, stated at page 377 of 322 U.S., at page 1041 of 64 S. Ct.: "To punish those who transport inmates of a house of prostitution on an innocent vacation trip in no way related to the practice of their commercial vice is consistent neither with the purpose nor with the language of the Act." The Court held that a conviction of petitioners for transporting the ...

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