U.S. v. Campione

• Decision Date: 16 August 1991
• Docket Number: 89-3122 and 89-3123,Nos. 89-3121,s. 89-3121
• Citation: 942 F.2d 429
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas CAMPIONE, Marion Collins and John Patricelli, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 429

942 F.2d 429

UNITED STATES of America, Plaintiff-Appellee, v. Thomas CAMPIONE, Marion Collins and John Patricelli,

Defendants-Appellants.

Nos. 89-3121, 89-3122 and 89-3123.

United States Court of Appeals, Seventh Circuit.

Argued May 10, 1990.

Decided Aug. 16, 1991.

Stephen D. Anderson, argued, Dept. of Justice, Chicago Strike Force, Chicago, Ill., for plaintiff-appellee.

Patrick A. Tuite, argued, Luis M. Galvan, argued, Office of the Federal Public Defender, and Jed Stone, argued, Urban & Stone, Chicago, Ill., for defendants-appellants.

Before COFFEY and KANNE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

KANNE, Circuit Judge.

For the price of two drinks, patrons could watch a nude dancing stage show at My Friend's Place in Franklin Park, Illinois. They also were presented with the opportunity to "mix" with the dancers. "Mix" means spend time with a dancer. Customers were required to pay money to mix; however, mixing was not a euphemism for prostitution exclusively. Some dancers were characterized as "light mixers" and others as "heavy mixers." Light mixers did not engage in oral sex or sexual intercourse with the patrons, heavy mixers did. Dancers received commissions based upon the time sold to patrons.

Dancers circulated among the tables and attempted to sell a "stick" to customers which entitled the customer to spend a short time with the dancer at the table. Certain areas in the bar afforded more privacy than the tables. One such area was known as the booth area; patrons were required to purchase a "small bottle" for $40.00 to $360.00 to spend time with a dancer in this area. ¹ No oral sex or sexual intercourse was permitted in the booth area. The back room, another private area, consisted of a large space in the rear of the building divided into several small cubicles, each offering candlelight, a couch and an end table. A patron paid $240.00 to $720.00 for a "bottle" to spend time with dancers in this area of the bar. Only in the back room were patrons permitted to engage in oral sex or sexual intercourse with the dancers. Eighteen patrons testified to having engaged in sexual intercourse or oral sex with dancers in the back room.

Customers could charge the price of bottles on credit cards. Credit authorizations were secured via an interstate telephone call; customers then signed the credit card slip and were escorted to the back room. Patrons of My Friend's Place testified to paying by credit card for time which entitled them to engage in oral sex or sexual intercourse.

An index card file was maintained at My Friend's Place to monitor patrons. The cards included the patron's name, his credit card number, the dates of his visits and the amount he was charged. The file was used to ensure that patrons were not "policemen trying to make a bust" and to gauge how much a patron would be willing to spend on a return visit. Defendants maintained and used the file system.

All defendants were involved in the management of My Friend's Place. Thomas Campione owned the business, the building and the property on which the building was located. Campione was instrumental in setting up the credit card payment scheme, hiring dancers and waitresses, and instructing employees regarding the practices and procedures to be used at My Friend's Place. Marion Collins was the president of My Friend's Place and responsible for the day-to-day management, including the hiring of dancers, scheduling of employees' work hours, and signing and handing out employees' paychecks. John Patricelli acted as the floor manager at My Friend's Place by greeting patrons on their arrival, checking their identification, acting as a master of ceremonies for the stage show, dealing with troublesome customers, and delivering credit card slips to National Credit Services. ²

A jury convicted defendants of conspiracy to violate the Racketeer Influenced and Corrupt Organizations ("RICO") statute, 18 U.S.C. § 1962(d), and thirty-two violations of the Travel Act, 18 U.S.C. § 1952. The Travel Act violations arose from use of interstate telephone transmissions to secure credit card authorizations and provided the underlying predicate acts for the RICO violation.

I. Defendants Campione and Collins

Defendants Campione and Collins pose a number of arguments on appeal. First, they argue that the district court erred when it failed to hold a hearing on the government's peremptory challenges of prospective jurors with Italian-American surnames. Second, they argue there was insufficient evidence that the credit card charges specified in the indictment were specifically or significantly related to the unlawful activity of prostitution as required by the Travel Act. Third, they argue that the government failed to prove that the person who made the credit card authorization phone calls also performed the "thereafter acts" required by the Travel Act. Fourth, they argue that the jury instructions should have required the jury to find an agreement among the conspirators as to which RICO predicate acts would be committed. And, finally, the defendants argue that the jury was improperly instructed that they could convict defendants on their substantive Travel Act charges based on their participation in the RICO conspiracy.

A. Peremptory Challenges

Defendants argue that it was error for the district court to fail to hold a hearing on the government's peremptory challenges of prospective jurors with Italian-American surnames relying on the principles set forth in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The question of extending Batson to the ethnic classification of Italian-Americans has not been addressed by the Supreme Court or this court. Other circuits have been presented with the issue, but avoided addressing it directly and instead focused on whether defendants presented a prima facie showing that Italian-Americans are a cognizable ethnic group under Batson and its progeny. See United States v. Di Pasquale, 864 F.2d 271, 276 (3rd Cir.1988) (court said even if Batson was not restricted to race, defendants failed to present a prima facie case), cert. denied, 492 U.S. 906, 109 S.Ct. 3216, 106 L.Ed.2d 566 (1989); United States v. Angiulo, 847 F.2d 956, 984 (1st Cir.1987) (defendant failed to show that Italian-Americans are a cognizable group), cert. denied, 488 U.S. 852, 928, 109 S.Ct. 138, 314, 102 L.Ed.2d 110, 332 (1988); United States v. Bucci, 839 F.2d 825, 833 (1st Cir.1988) (court said that Batson extends to ethnic groups that meet the criteria and defendant here failed to show that Italian-Americans meet the criteria); United States v. Sgro, 816 F.2d 30, 33 (1st Cir.1987) (court assumed, without deciding, that Batson extends to ethnic groups and then found that defendant failed to establish prima facie showing that Italian-Americans [comprise] a cognizable group), cert. denied, 484 U.S. 1063, 108 S.Ct. 1021, 98 L.Ed.2d 986 (1988). In each case the district judge determined that defendants failed to show that Italian-Americans or persons with Italian surnames are a cognizable group under a Batson analysis.

During the voir dire proceedings, the defendants in this case requested a side-bar conference after the judge excused two "Italian surnamed jurors" on the basis of the government's exercise of two peremptory challenges. At the side-bar conference defense counsel stated to the judge that "Italian-Americans are a recognizable ethnic group." The district judge responded, "I don't believe Batson extends to any ethnic group in the population and I am not sure that these people are necessarily Italian-Americans." ³ The judge asked defense counsel if they wanted to say anything else. Defense counsel answered no and made no request for an evidentiary hearing. Defense counsel made no proffer of evidence to support the assertion that the excused jurors were ethnic Italian-Americans--other than the fact that they possessed Italian-sounding surnames; nor, did they make a proffer of evidence to show that Italian-Americans are a cognizable group subjected to discrimination because of their ethnicity.

Contrary to the view expressed by the district judge, it may be that the Batson analysis extends to discrimination in jury selection based solely on ethnicity. See Hernandez v. New York, --- U.S. ----, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (court examined peremptory challenges to members of ethnic group on basis of race discrimination); St. Francis College v. Al-Khazraji, 481 U.S. 604, 613, 107 S.Ct. 2022, 2028, 95 L.Ed.2d 582 (1987) (in context of § 1982, court defined "race" to include identifiable classes of persons who are subjected to discrimination solely because of their ancestry or ethnic characteristics). But we need not reach that issue today. We simply note that the defendants offered no evidence to establish a prima facie showing that the prosecutor exercised his peremptory challenges on the basis of ethnicity.

Given the examination process available in the selection of a petit jury, the spelling of a person's surname is insufficient--standing alone--to show that he or she belongs to a particular ethnic group. Moreover, in the context of ethnicity, a Batson analysis would require that the challenged jurors be members of a cognizable ethnic group that is subjected to discriminatory treatment. See Angiulo, 847 F.2d at 984; Bucci, 839 F.2d at 833; Sgro, 816 F.2d at 33. A conclusory statement by defense counsel that "Italian-Americans [comprise] a recognizable ethnic group," without more, does not rise to the level of a preliminary showing that Italian-Americans meet the test of a cognizable group whose members could not be excluded from a jury without justification based on factors other than ethnicity.

It was not error for the district judge to decline to hold an evidentiary hearing where no such hearing was requested and no evidence to establish a prima facie showing of discriminatory use of...