U.S. v. Barbieri, s. 78-1447

• Decision Date: 01 February 1980
• Docket Number: 78-1448,Nos. 78-1447,s. 78-1447
• Citation: 614 F.2d 715
• Parties: 6 Fed. R. Evid. Serv. 585 UNITED STATES of America, Plaintiff-Appellee, v. Michael J. BARBIERI, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Wayne ELLIOTT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 715

614 F.2d 715

6 Fed. R. Evid. Serv. 585

UNITED STATES of America, Plaintiff-Appellee, v. Michael J. BARBIERI, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Wayne ELLIOTT, Defendant-Appellant.

Nos. 78-1447, 78-1448.

United States Court of Appeals, Tenth Circuit.

Feb. 1, 1980.

David M. Johnson, of Hayes & Heisler, Clayton, Mo., for defendant-appellant Michael J. Barbieri.

Robert J. Turner, of Turner, Turner & Green, Oklahoma City, Okl., for defendant-appellant Wayne Elliott.

Teresa M. Black, Asst. U. S. Atty., Oklahoma City, Okl. (with Larry D. Patton, U. S. Atty. and Susie Pritchett, Asst. U. S. Atty., Oklahoma City, Okl., on the brief), for plaintiff-appellee.

Before SETH, Chief Judge, BREITENSTEIN and McKAY, Circuit Judges.

McKAY, Circuit Judge.

Defendant Barbieri is the imaginative author of an elaborate scheme aimed at achieving a national monopoly in the prostitution industry. Although Barbieri's plan was described as "infalable (sic ) and he thought it over and there was nothing illegal about forming a Hookers' Union (that was) going to take over the whole country," Record, vol. 7, at 242, Barbieri and a companion, Elliott, met with some difficulties in implementing it. Their criminal convictions are the subjects of this appeal.

Barbieri's initial attempts at implementation were made in St. Louis, Missouri, with an experienced prostitute named Hinchcliff. Competition being what it is in the business, Barbieri and Hinchcliff found it convenient to terminate their operation before certain threats from unhappy competitors were successfully carried out. But Barbieri was undaunted. He determined that if the police could be deceived into thinking his establishment was a front for law enforcement, analogous to police-sponsored "sting" operations, he could continue toward his goal protected from prosecution as well as from competition. When unsuccessful with the police, he advised Hinchcliff to transfer to Las Vegas and indicated that they "would pick up business elsewhere." Record, vol. 7, at 148. Oklahoma City was among the list of possibilities.

On November 16, 1977, Barbieri was sent by his employer to Oklahoma City for a few weeks to supervise the refurbishing of an airplane. While there, Barbieri encountered Elliott, the co-defendant, and, in the usual course of her business, a prostitute named Davis. On November 25, Barbieri, his girl friend and Elliott drove to St. Louis. They returned to Oklahoma City November 27.

The day after his return, Barbieri again visited Davis and, among other things, proposed that she join with him in setting up an escort service in Oklahoma City. Sometime thereafter Barbieri met with Davis to introduce her to Elliott, "the person who was going to be in charge of the Oklahoma City operation" and who would be the contact with Barbieri and "the home office in St. Louis." Record, vol. 7, at 323-24. In the series of meetings that followed, Barbieri, Elliott and Davis discussed the grand prostitution scheme, dignified by Barbieri's and Elliott's occasional references to their links to "the old man" of organized crime.

During one of the meetings, Barbieri telephoned Hinchcliff in Las Vegas, telling her while Elliott and Davis listened: "Things look real good, it looks like we can take over the city and run the city and I want you to come to Oklahoma City, bring Mitzi, and we are going to start our organization." Record, vol. 7, at 329. He explained to Hinchcliff that he had a girl who knew the business in Oklahoma City and that he and a friend were there preparing to set up an apartment "just like we had in St. Louis." Id. at 190. Hinchcliff then traveled from Las Vegas to Oklahoma City.

The plan for Oklahoma City went forward, but not without problems. Arrangements were made for an apartment, a telephone was installed, and advertisements for the escort service appeared in the paper. In the meantime, however, Davis had become a police informer. Although suspicious, Barbieri and Elliott did not exclude her before she obtained extensive incriminating tape recordings.

Barbieri was indicted in Count I essentially for traveling from St. Louis, Missouri, to the Western District of Oklahoma on November 27, 1977, with the intent to promote, manage, establish, or carry on prostitution operations in violation of the Travel Act, 18 U.S.C. § 1952. ¹ In the second count, Barbieri and Elliott were indicted for conspiracy to commit a violation of the Travel Act. 18 U.S.C. § 371. Among the overt acts alleged by the government were Barbieri's travel on November 27, an interstate phone call to Hinchcliff and Hinchcliff's travel from Las Vegas to Oklahoma City. In the face of the prostitutes' direct testimony and the tape recordings, neither Barbieri nor Elliott found it profitable to deny the bulk of the government's case. Instead, each testified that the endeavor was an elaborate put-on, a big game, a fantasy, and that he had no intention of carrying it out. While the exaggerated nature of some of the ideas involved gave credence to the defense, the jury did not believe it. Barbieri was convicted on both counts, and Elliott on Count II.

BARBIERI'S APPEAL

Evidence of Intent

A successful prosecution under the Travel Act, 18 U.S.C. § 1952, requires proof that the defendant (1) traveled or used facilities in interstate commerce; (2) with intent to promote, manage, establish, carry on or facilitate the promotion, management, establishment, or carrying on of a prohibited activity e. g., illegal prostitution; and (3) thereafter attempted to or did in fact engage in one of the proscribed activities.

By linking the interstate element to the proscribed activity with an intent requirement, Congress made it clear that there must be a coincidence between the purpose of interstate activity and the prohibited objective. The question is: Why was the travel or the use of an interstate facility undertaken? The interstate means must be used in furtherance or in facilitation of the illegal activities. See Erlenbaugh v. United States, 409 U.S. 239, 246, 93 S.Ct. 477, 481, 34 L.Ed.2d 446 (1972); United States v. Graham, 581 F.2d 789, 790 (9th Cir. 1978). Cf. United States v. Marino, 421 F.2d 640, 641 (2d Cir. 1970). The use of the interstate means need not be essential to the illegal scheme as long as it makes the illegal objective "less difficult" to accomplish. United States v. Miller, 379 F.2d 483, 486 (7th Cir.), cert. denied, 389 U.S. 930, 88 S.Ct. 291, 19 L.Ed.2d 281 (1967). Of course, the facilitation of the proscribed activity need not be the sole purpose for the use of interstate means. United States v. Pauldino, 443 F.2d 1108, 1112 (10th Cir.), cert. denied, 404 U.S. 882, 92 S.Ct. 212, 30 L.Ed.2d 163 (1971). "The fact that travel is motivated by two or more purposes, some of which lie outside the ambit of the Travel Act, will not preclude conviction under the Act if the requisite § 1952(a) intent is also present." United States v. Gooding, 473 F.2d 425, 428 (5th Cir.), cert. denied, 412 U.S. 928, 93 S.Ct. 2752, 37 L.Ed.2d 155 (1973). In contrast, there will be circumstances where the crossing of state lines will be wholly unrelated to any criminal objective. For instance, one engaged in an illegal prostitution operation may take a vacation in another state and then return to his home and activities without violating the Act. See United States v. Judkins, 428 F.2d 333, 335 (6th Cir. 1970); United States v. Hawthorne, 356 F.2d 740 (4th Cir.), cert. denied, 384 U.S. 908, 86 S.Ct. 1344, 16 L.Ed.2d 360 (1966). ² If the use of the interstate facility is incidental to the scheme, no federal crime is committed. See United States v. Villano, 529 F.2d 1046, 1053 (10th Cir. 1976); United States v. Altobella, 442 F.2d 310, 315 (7th Cir. 1971).

The difficult task in many Travel Act prosecutions is not in producing evidence of the proscribed activities or the use of interstate means, but in showing the connecting intent. In most cases intent must be proved by circumstantial evidence. See United States v. Pauldino, 443 F.2d 1108, 1114 (10th Cir.), cert. denied, 404 U.S. 882, 92 S.Ct. 204, 30 L.Ed.2d 163 (1971). Determining when there is sufficient proof to permit the jury to infer the requisite intent is rarely simple. Such a determination cannot be made by resort to a fixed rule but must be made on a case-by-case basis, keeping in mind the government's burden of proof. Applying these principles here, we believe that there was sufficient evidence to support the jury's finding that Barbieri's interstate trip from Oklahoma City to St. Louis and back was in furtherance of his criminal objectives. The trial court therefore did not err in submitting the case to the jury.

The only direct testimony bearing on intent was presented by Barbieri and Elliott. That testimony indicates an innocent purpose for the trip. The prosecution evidence offered to show intent was entirely circumstantial. However, viewed in a light most favorable to the government, this evidence clearly showed that Barbieri formed the intent before the trip to establish an interstate prostitution network, with a branch in Oklahoma City and the headquarters in St. Louis, and that Barbieri undertook overt acts in furtherance of that intent immediately upon his return to Oklahoma City. The evidence showed that Barbieri's companion on the trip, Elliott, was his co-conspirator in establishing the Oklahoma activities. It showed that Barbieri and Elliott applied for a $200,000 loan while in St. Louis. It showed repeated references by Barbieri and Elliott in Oklahoma City meetings to organized crime connections in St. Louis. Finally, it showed that the day after the trip Barbieri told Davis, whom he was enlisting in the illegal Oklahoma enterprise, that "he was with a group from St. Louis that has been currently for the past six weeks surveying the Oklahoma City market and he was going to set up an escort prostitution...