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United States v. Muskovsky

decided: December 8, 1988.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
SIDNEY MUSKOVSKY AND MICHAEL POSNER, DEFENDANTS-APPELLANTS



Appeals from the United States District Court, for the Northern District of Illinois, Eastern Division. No. 87 CR 59 -- William T. Hart, Judge.

Coffey, Flaum, and Easterbrook, Circuit Judges.

Author: Flaum

FLAUM, Circuit Judge.

Defendants Michael Posner and Sidney Muskovsky were convicted by a jury of fourteen violations of the Travel Act and of conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (RICO). The Travel Act violations were premised on the use of an interstate facility, the telephone, to promote, manage, facilitate and carry on acts of prostitution in violation of Illinois law, and the RICO violation was based on the predicate Travel Act violations. On appeal, the Defendants assert numerous errors. First, they claim that there was insufficient evidence to convict them of either the Travel Act or RICO conspiracy violations. Second, they claim that the government's conduct in gathering evidence against them was so outrageous that, as a matter of due process, their convictions must be reversed. Third, they claim that the trial court committed plain error in failing to instruct the jury on the definition of "pattern" for purposes of a RICO violation. Finally, the Defendants assert that, because Illinois law precludes conviction for both a substantive crime and a conspiracy to commit that substantive crime, their RICO conspiracy sentences must be vacated since they cannot be sentenced for both the Travel Act violations and the RICO conspiracy violation. Because we find no merit in these contentions, we affirm.

I.

Defendant Michael Posner was the owner of the Roman House, a club located in Prairie View, Illinois. Defendant Sidney Muskovsky was the manager of that club from approximately 1979 to 1985. The Roman House was billed as a nude dancing establishment and featured a sign in front of the club which read "Nude, Nude, Nude." The defendants admitted that they intended to run the club as a "bust-out" joint -- an establishment where the object is to take all of the customer's money. The government contended at trial, and apparently convinced the jury, that the Roman House succeeded in its objective by enticing the customer to buy very expensive drinks, using their credit cards, in exchange for sexual favors.

The Defendants were convicted of fourteen counts of using a facility in interstate commerce to promote, facilitate, manage and carry on an unlawful activity in violation of 18 U.S.C. Section 1952 (the Travel Act). The Defendants were also convicted of one count of conspiring to participate in the affairs of an enterprise through a pattern of racketeering activity in violation of 18 U.S.C. Section 1962(d) (RICO). Defendant Posner was sentenced to ten years' imprisonment on the RICO conspiracy conviction and five years' probation on the Travel Act counts, and was also fined a combined total of $95,000. Defendant Muskovsky was sentenced to four years' imprisonment on the RICO conspiracy count and five years' probation on the Travel Act violations. This appeal followed.

II.

The Defendants attack their convictions in various ways under the rubric of insufficient evidence. First, they claim that some of the testimony against them was so unreliable that it should not have been taken into account by the jury. Without that testimony, they say, there is insufficient evidence to prove that they violated either the Travel Act or RICO. Second, the Defendants claim there is insufficient evidence to show that they entered into a conspiracy to operate the Roman House through a pattern of racketeering activities. Third, the Defendants assert that there was insufficient evidence of the interstate nexus required to support a RICO violation. Finally, the Defendants offer a grab bag of claims alleging insufficient evidence to support their Travel Act convictions.

When presented with a claim of insufficient evidence we will "affirm the verdict if the evidence, when viewed in the light most favorable to the government, establishes that any rational trier of fact could have found the elements of the crime beyond a reasonable doubt." United States v. Leibowitz, 857 F.2d 373, slip op. at 13 (7th Cir. 1988); United States v. D'Antonio, 801 F.2d 979, 981 (7th Cir. 1986). This is a very heavy burden for a defendant to meet. United States v. Bruun, 809 F.2d 397, 408 (7th Cir. 1987). The burden becomes even heavier, however, where there is a claim of insufficient evidence because of the unreliability of one or more witnesses. Matters of witness credibility, absent "extraordinary circumstances," are solely for the jury to evaluate. United States v. D'Antonio, 801 F.2d at 982. With these standards in mind we now turn to the specific allegations of insufficient evidence made by the Defendants.

A.

The Defendants claim that the testimony of three of the Government's witnesses, Ann Stefka, Kim Hileman and Nada Lauts, was "somewhere between . . . inherently incredible and inherently improbable." They claim that such flawed testimony provides the extraordinary circumstances which allow a reviewing court to independently evaluate witness credibility. Moreover, with the testimony of these witnesses excluded, they believe there is insufficient evidence to support their convictions.*fn1

Ann Stefka was a waitress at the Roman House from late 1979 to early 1981. She testified at trial that she "frequently" saw acts of oral sex and sexual intercourse take place at the Roman House between customers and the dancers and mixers.*fn2 She also testified that she saw both Posner and Muskovsky send girls to the back of the club to be with customers.*fn3 As a waitress, one of Ms. Stefka's duties was to clean up after the club had closed for the night. Ms. Stefka testified that in the course of this cleanup she occasionally found used sexual paraphernalia such as condoms in the back of the club.

On cross-examination, defense counsel extensively questioned Ms. Stefka on whether she had ever heard Posner tell his employees not to engage in sex. Ms. Stefka testified that she had not heard Posner say this, whereupon defense counsel attempted to impeach her with her grand jury testimony asserting that she had heard Posner make such a statement. Defense counsel also attempted to bring out that Ms. Stefka had a drug problem at the time she worked at the Roman House, a charge which Ms. Stefka denied.

Kim Hileman worked as a dancer and a mixer at the Roman House in 1980. She testified that she and other girls engaged in oral sex and sexual intercourse with customers in the back area of the Roman House. According to Ms. Hileman, when a customer entered the Roman House he would be seated at a table near the dance floor where a mixer would eventually join him. If the customer agreed to buy drinks for the mixer, the mixer would ask the customer if he would like to go to the back area where they could be "more comfortable." Once in the back, she would attempt to induce the customer to buy bottles of "bubbly," a non-alcoholic mixture of juice and soda. Only after the customer had purchased three or four bottles of bubbly, at approximately $96 a bottle, would she engage in sexual intercourse or oral sex with the customer. Ms. Hileman further testified that Muskovsky sent her to the back area with the knowledge that she would engage in oral sex or sexual intercourse and never told her not to engage in such acts.

On cross-examination the defense established that Ms. Hileman had a serious drinking problem during part of the time she worked at the Roman House. The defense also introduced evidence that Ms. Hileman told the FBI, prior to the grand jury proceedings in this case, that she did not engage in sexual conduct of any kind at the Roman House. Ms. Hileman admitted that she was fired from the Roman House because of her failure to show up for work and because of her drinking problems.

Nada Lauts, from May to October, 1976, was also a dancer and mixer at the Roman House. Ms. Lauts, like Ms. Hileman, testified that she attempted to get customers to buy bottles of "champagne" and then go to the back area where they could "party and have a good time." Ms. Lauts further testified that she saw other mixers engage in oral sex and sexual intercourse with customers in the back area and that she saw Defendant Posner send girls to the back area. During both direct and cross-examination, Ms. Lauts admitted that in exchange for her testimony she was given immunity from prosecution, was given aid in trying to settle problems she had with the IRS, and that, because of her testimony, a case against her husband involving drug possession may have been dropped.

Defendants claim that the testimony of these three witnesses should be disregarded because the testimony was "somewhere between inherently incredible and inherently improbable." Initially, we note that the Defendants have waived this claim by failing to raise it before the district court. See United States v. Carter, 720 F.2d 941, 945 (7th Cir. 1983) (failure to present issue to district court results in a waiver of that issue on appeal). Even if we were to reach the Defendants' claim on the merits, however, we would find that the testimony was properly before the jury. Defendants cite United States v. Rosenberg, 416 F.2d 680, 683 (7th Cir. 1969), for the proposition that we may disregard testimony which is "inherently improbable." In Rosenberg, evidence gathered by government agents was excluded at trial because the agents lacked a search warrant at the time they obtained the evidence. On appeal, the government claimed that its agents were lawfully on the premises of the ...


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