U.S. v. Pelton

Decision Date07 June 1978
Docket Number77-1695,Nos. 77-1682,s. 77-1682
Parties4 Fed. R. Evid. Serv. 334 UNITED STATES of America, Appellee, v. Lloyd M. PELTON, Appellant. UNITED STATES of America, Appellee, v. Jacqueline RICH, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Claude Hanks, Clayton, Mo., Hanks Taylor & Suddarth, Clayton, Mo., filed brief, for appellant, Pelton.

Irl B. Baris, St. Louis, Mo., for appellant, Rich.

David M. Rosen, Asst. U. S. Atty., argued, Robert D. Kingsland, U. S. Atty., St. Louis, Mo., on brief, for appellee.

Before GIBSON, Chief Judge, and ROSS and WEBSTER, 1 Circuit Judges.

GIBSON, Chief Judge.

This case involves charged violations of the Mann Act arising out of certain interstate activities undertaken by a prostitution operation based in St. Louis, Missouri. In July 1977, the Government returned an eight-count indictment against Jacqueline "Pat" Rich, Lloyd Pelton and Ann Frazier. 2 The first four counts of the indictment related to travel by prostitutes between St. Louis, Missouri, and Chicago, Illinois; the second four counts related to travel between St. Louis, Missouri, and Winnemucca, Nevada.

In late September 1976, Fred Coughlin, then a sales representative for a boat company in the St. Louis area, asked Rich to provide prostitutes for a forthcoming boat show in Chicago. Rich agreed to let Coughlin take two call girls whom she employed to Chicago to "work" the boat show. She then directed Kathleen Bray and Charlotte Anderson to drive to Chicago with Coughlin. She also arranged for the separate transportation to Chicago of Kathleen Waggoner, another call girl in her employ. All three women travelled to Chicago as arranged by Rich and worked as prostitutes at a boat show; while in Chicago they were managed pursuant to arrangements made by Rich. Bray became ill and returned to St. Louis earlier than the others, who returned at the conclusion of the boat show.

Upon Bray's return to St. Louis, plans were made for sending her and another call girl known as Georgia to work at Penny's Cozy Corner, a house of prostitution in Winnemucca, Nevada. According to Bray, she was present at Rich's apartment when Rich and Pelton made arrangements for this trip. Pelton called an acquaintance of his at Penny's Cozy Corner and arranged for Bray's stay there. It was agreed that he would receive $200 per girl for his placement services. Rich gave Bray $200 to buy clothes and $250 to buy an airplane ticket to Nevada and to pay for a doctor's examination and the accessories that she would need at Penny's Cozy Corner. Rich was to receive a percentage of the money which Bray earned in Nevada. Bray flew to Nevada and attempted to become licensed as a prostitute. Her application for a license was denied because she was under the age of eighteen, and she returned to St. Louis. Following Bray's return, Pelton and Rich made plans and arrangements, similar to those which they had made for her Nevada trip, for sending Shirley Dawson and Charlotte Anderson to Winnemucca. Pursuant to these arrangements, Dawson and Anderson travelled to Winnemucca in October 1976, and began to work at Penny's Cozy Corner. They quickly discovered that employment in Nevada was not as lucrative as they had imagined it would be and they returned to St. Louis after only a short tenure in Winnemucca.

Rich and Pelton were tried jointly to a jury on the charges arising from the aforesaid events. 3 Rich, who was charged in all eight counts, was found guilty on Counts I-VII and acquitted on Count VIII (Nevada trip of Anderson). She received an aggregate sentence of ten years' imprisonment. 4 Pelton, who was charged only in Counts V-VIII, was found guilty on Counts V (conspiracy involving trips to Nevada) and VII (Nevada trip of Bray) and acquitted on Counts VI and VIII (Nevada trips of Dawson and Anderson respectively). He received two concurrent sentences of three years' imprisonment.

Both defendants appeal. We first consider appellant Rich's contentions.

Continuance

Rich was arrested on July 11, 1977, and arraigned on July 18. At her arraignment, the District Court 5 set an August 1 trial date, despite protestations by Rich's counsel that this date would be inconvenient to him. On July 27, Pelton, who had also been given an August 1 trial date when he was arraigned on July 11, filed a motion for a continuance and the Government filed a written response requesting a denial of the motion. On July 28, Rich moved for a continuance.

When the case was called for trial on the morning of August 1, the District Court considered defendants' continuance motions. In support of their motions, both counsel asserted personal exigencies that had curtailed their pretrial preparation. Government counsel expressed opposition to the granting of a continuance, primarily because of his fear that delay of the trial could lead to the unavailability of several important Government witnesses who were then in protective custody. The District Court denied defendants' continuance motions, and on the afternoon of August 1, voir dire examination of potential jurors was conducted, a jury was impanelled and trial was commenced. Rich contends that the trial court's refusal to grant a continuance was erroneous because it precluded her attorney from making adequate preparation and investigation for her defense.

We note initially that a review of the trial transcript shows that Rich was vigorously defended at trial and belies the suggestion that counsel had less than adequate time to prepare for trial. The twenty-day period from time of arrest to trial appears adequate, particularly in view of the strictures of the Speedy Trial Act. Moreover, a motion for continuance is addressed to the sound discretion of the trial court, and a refusal to grant a continuance will be set aside only upon a showing of a clear abuse of discretion. United States v. Jackson, 549 F.2d 517, 528 (8th Cir.), cert. denied, 430 U.S. 985, 97 S.Ct. 1682, 52 L.Ed.2d 379 (1977); United States v. Webb, 533 F.2d 391, 395 (8th Cir. 1976). Counsel for Rich supported his motion for continuance with the speculation that there might be witnesses in Chicago and Nevada whom he had been unable to interview prior to trial because of the personal time strictures of his life. In opposing a continuance, the Government presented specific and cogent reasons which went to the very viability of the prosecution. On these facts, we are unable to say that the trial court abused its discretion in refusing to grant a continuance.

Discovery of tape recordings in the Government's possession

Discovery of evidence in criminal cases is governed by the provisions of Rule 16 of the Federal Rules of Criminal Procedure. Prior to trial, Rich made a request under Rule 16 for tape recordings of her voice which were in the Government's possession. Ordinarily, when a defendant requests inspection of his or her statements which are in the possession, custody or control of the Government, the Government has a duty of disclosure under Rule 16(a)(1)(A). 6 In the instant case, the Government declined to disclose to Rich the tape recordings of her voice which were in its possession. Motivated by concern for the safety of persons cooperating on the case, whose identity would be revealed to Rich if she heard the tapes, the Government requested a protective order under Rule 16(d)(1), which provides:

Upon a sufficient showing the court may at any time order that the discovery or inspection be denied, restricted, or deferred, or make such other order as is appropriate. Upon motion by a party, the court may permit the party to make such showing, in whole or in part, in the form of a written statement to be inspected by the judge alone. If the court enters an order granting relief following such an ex parte showing, the entire text of the party's statement shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal.

In support of its request, the Government made an ex parte presentation to the court. Upon listening to the tapes, the trial judge concluded that they contained nothing exculpatory of Rich. He then made the tapes a part of the record and issued a Rule 16(d)(1) order sealing them. The tapes were not used at trial. The Government also assures us that it made no use at trial of any evidence derived from the tapes.

Rich contends, nonetheless, that the court erred in denying her access to the recordings of her voice. Discovery matters are committed to the sound discretion of the district court and an error in administering the discovery rules is reversible only on a showing that the error was prejudicial to the substantial rights of the defendant. United States v. Crow Dog, 532 F.2d 1182, 1189 (8th Cir. 1976), cert. denied, 430 U.S. 929, 97 S.Ct. 1547, 51 L.Ed.2d 772 (1977); United States v. Cole, 453 F.2d 902, 904-05 (8th Cir.), cert. denied, 406 U.S. 922, 92 S.Ct. 1788, 32 L.Ed.2d 122 (1972). Given the trial court's finding that the tapes contained no exculpatory evidence and the fact that the Government made no direct or derivative use of the tapes, we find it difficult to understand how Rich could have been prejudiced by being denied access to the tapes. Moreover, a review of the record reveals that the protective order at issue here was entered in conformance with Rule 16(d)(1), which specifically authorizes ex parte proceedings. The purpose of the order sought here was to protect the identity of persons cooperating on the case. An adversary proceeding would have defeated the very purpose of the requested order by revealing their identities to Rich.

A review of the record, which includes the sealed tapes at issue here, convinces us that an ex parte proceeding was appropriate on the facts of this case and that the Government...

To continue reading

Request your trial
94 cases
  • U.S. v. Gibbs
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 19 Junio 1984
    ...asserted the fifth amendment privilege against self-incrimination, he then would have been deemed unavailable. See United States v. Pelton, 578 F.2d 701, 709-10 (8th Cir.1978). Hence, it is solely by reason of Gibbs' failure to raise the issue of Quintiliano's availability before the distri......
  • U.S. v. Pepe, s. 81-5453
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 28 Noviembre 1984
    ...are involved, the right of access may be delayed. See United States v. Walton, 602 F.2d 1176, 1179-80 (4th Cir.1979); United States v. Pelton, 578 F.2d 701, 708 (8th Cir.), cert. denied, 439 U.S. 964, 99 S.Ct. 451, 58 L.Ed.2d 422 (1978). As noted, the protected witnesses, here, were availab......
  • United States v. Falvey, 81 Crim. 423(S-2).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • 15 Junio 1982
    ...1851, 16 L.Ed.2d 973 (1966); Palermo v. United States, 360 U.S. 343, 354, 79 S.Ct. 1217, 1225, 3 L.Ed.2d 1287 (1959); United States v. Pelton, 578 F.2d 701, 707 (8th Cir.), cert. denied, 439 U.S. 964, 99 S.Ct. 451, 58 L.Ed.2d 422 (1978); United States v. Buckley, 586 F.2d 498, 506 & n.6 (5t......
  • U.S. v. Kopituk, 80-5025
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 4 Noviembre 1982
    ...the witness has testified on direct examination. See United States v. Rivero, 532 F.2d 450, 461 (5th Cir. 1976); United States v. Pelton, 578 F.2d 701, 709 (8th Cir.), cert. denied, 439 U.S. 964, 99 S.Ct. 451, 58 L.Ed. 422 (1978); United States v. Wilkinson, 513 F.2d 227, 232 (7th Cir. 1975......
  • Request a trial to view additional results
4 books & journal articles
  • Sex Work
    • United States
    • Georgetown Journal of Gender and the Law No. XXIII-2, January 2022
    • 1 Enero 2022
    ...187. 18 U.S.C.A. § 2421 (West, Westlaw through Pub. L. No. 115-90). 188. Kittling, supra note 186, at 918. 189. United States v. Pelton, 578 F.2d 701, 712 (8th Cir. 1978) (holding that the language of the statute states that interstate transportation for the purpose of prostitution is illeg......
  • Pre-trial discovery
    • United States
    • James Publishing Practical Law Books Defending Drinking Drivers - Volume One
    • 31 Marzo 2022
    ...times the court will insist on in camera examination of requested material before entering a protective order. United States v. Pelton , 578 F.2d 701 (8th Cir.) cert. den ., 439 U.S. 964 (1978). §430 SANCTIONS Defense counsel must be vigilant in avoiding discovery abuse and in projecting an......
  • Pretrial discovery
    • United States
    • James Publishing Practical Law Books Federal Criminal Practice
    • 30 Abril 2022
    ...order include: • A threat to the physical safety of a witness or other person resulting from discovery [ United States v. Pelton , 578 F.2d 701, 708 (8th Cir. 1978); United States v. Bulger , 283 F.R.D. 46, 55-56 (D. Mass. 2012)] • Economic harm to a witness if the government discloses his ......
  • Commercial sexual exploitation: human sex trafficking & non-consensual pornography
    • United States
    • Georgetown Journal of Gender and the Law No. XXIV-2, January 2023
    • 1 Enero 2023
    ...). 41. 18 U.S.C.A. § 2421 (West, Westlaw through Pub. L. No. 115–90). 42. Kittling, supra note 40, at 918. 43. United States v. Pelton, 578 F.2d 701, 712 (8th Cir. 1978) (holding that the language of the statute states that interstate transportation for the purpose of prostitution is illega......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT