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United States v. Zemater

decided: July 25, 1974.


Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 71 CR 98 RICHARD W. MCLAREN, Judge.

Swygert, Chief Judge, Kiley, Senior Circuit Judge, and Stevens, Circuit Judge.

Author: Per Curiam

A six count indictment charged five men, including the two appellants, with criminal activity in connection with the alleged operation of prostitution in Saigon in December, 1970. Count I charged a conspiracy*fn1 to violate the Mann Act*fn2 and the Travel Act.*fn3 Counts II, III, IV, and V charged substantive Mann Act violations, each in connection with one of the four women involved. Count VI charged a substantive offense under the Travel Act, namely the use of interstate facilities to effectuate a violation of the Illinois Pandering Statute.*fn4 The appellants were found guilty by a jury on all six counts.*fn5

This appeal challenges the sufficiency of the evidence on Counts IV and V, the correctness of numerous rulings made by the trial judge, and whether the Government's evidence proves a violation of the Travel Act.

The undisputed facts can be briefly summarized. Both appellants were theatrical agents, Auler working in Milwaukee and Zemater in Chicago. In September, 1970, Auler traveled to Saigon to arrange bookings for three groups of entertainers. In Vietnam he was in contact with one James Cotton, who was planning to open a nightclub named "The Office" in Saigon for the benefit of American servicemen. Upon his return to the United States, Auler asked Zemater to help locate four girls to work in the Saigon club.

In November, 1970, the appellants traveled to Madison, Wisconsin, where they approached Renee Kocoa and Margaret Paull, the women named in Counts IV and V of the indictment, about going to Saigon. In Madison, they were performing as dancers in a nightclub; they testified that they were given the impression that in Saigon they would be doing the same.

At about the same time, arrangements were made in Chicago with two other women, Sandra Lucido and Bobby Jean Wheeler, to go to Saigon to work in the same nightclub.

On approximately November 28, 1970, the four women and Auler left Chicago and traveled to Saigon via San Francisco and Hong Kong. The women performed as dancers in Cotton's nightclub in Saigon. There was also evidence that each of the women engaged in prostitution. After approximately 10 days, the four women left the villa in which "The Office" was located and, with the help of the American Embassy, returned to the United States.

There are three different versions of the facts which must be identified. They may be described chronologically as (1) the government's original theory; (2) the alternate theory; and (3) they post-trial theory.

The original theory of the prosecution, which was supported by the pretrial statements of all four women, their testimony before the grand jury, and the direct testimony of Kocoa and Paull, was that all four of them were hired to go to Saigon as dancers, that after their arrival they were forced to engage in prostitution, and that they made a dramatic escape from "The Office" to the American Embassy 10 days after their arrival. Although this was the prosecutor's theory when the case was presented to the grand jury, when the opening statements were made, and during the first portion of the trial, it is no longer seriously maintained.

After the trial was under way, and prior to the cross-examination of Paull -- the second "victim" to testify in support of the original forced prostitution theory -- the government advised the court that their next witness, Wheeler, had drastically changed her story and had completely recanted her earlier statements and grand jury testimony about forced prostitution and the "escape." Thereafter the government's evidence tended to support its alternate theory, namely, that the four women were employed by appellants to work voluntarily as prostitutes in Saigon. In the subsequent portions of the trial, the "victims" Wheeler and Lucido, as well as the witnesses VanNess and Monaghan (both of whom testified that they had formerly done business with appellants), gave testimony supporting this theory. Assuming that such testimony is credible, it would be sufficient to support a fairly typical Mann Act violation involving Wheeler and Lucido, and would also provide a basis for inferring that identical arrangements were made with Kocoa and Paull, since there was evidence that all four women did engage in prostitution in Saigon.

The third version of the entire matter is supported by two rather detailed affidavits attached to appellants' "Motion to Remand for Hearing on Defendants' Motion for a New Trial," which was filed in this court after the case had been taken under advisement. These affidavits, if true, indicate that the original version was correct insofar as it indicated a complete absence of discussion between the appellants and the four women about working as prostitutes in Saigon, and that the alternate version is correct insofar as it indicates that there was no forced prostitution in Saigon and no dramatic "escape" from involuntary custody. Under the post-trial version of the events, appellant merely hired the four women to work as dancers and they voluntarily undertook to enhance their earnings by (a) working as prostitutes in Saigon largely on their own initiative, and (b) contrived the highly publicized escape to the American Embassy to provide material for a lurid book which they contracted to publish upon their return to the States. The affidavits set forth evidence which, if true, and if available at the trial, might have been sufficient to cause the jury to accept the third version as the correct one.

The blatant contradictions in the evidence adduced at trial, and also between certain portions of the record and the post-trial affidavits, make it perfectly clear that significant false testimony was given. Normally a motion such as the post-argument motion to remand which has been filed by appellants should be addressed to the trial court in the first instance. The extraordinary circumstances portrayed by this record, however, fortified by the paramount importance of avoiding the risk of injustice to the ...

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