U.S. v. Coran

• Decision Date: 26 December 1978
• Docket Number: Nos. 78-1114,s. 78-1114
• Parties: 3 Fed. R. Evid. Serv. 1397 UNITED STATES of America, Appellee, v. Samuel Mark CORAN, Defendant, Appellant. UNITED STATES of America, Appellee, v. Deborah C. TALLENT, Defendant, Appellant. UNITED STATES of America, Appellee, v. Mary Ann SCHURMANN, Defendant, Appellant. to 78-1116.
• Court: U.S. Court of Appeals — First Circuit

Page 70

589 F.2d 70

3 Fed. R. Evid. Serv. 1397

UNITED STATES of America, Appellee, v. Samuel Mark CORAN, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Deborah C. TALLENT, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Mary Ann SCHURMANN, Defendant, Appellant.

Nos. 78-1114 to 78-1116.

United States Court of Appeals, First Circuit.

Argued Sept. 14, 1978.

Decided Dec. 26, 1978.

Matthew H. Feinberg, Boston, Mass., by appointment of the Court, for appellant, Samuel Mark Coran.

Melvin Ravech, Boston, Mass., for appellant, Deborah C. Tallent.

Joan C. Schmidt, Boston, Mass., with whom Joseph J. Balliro, Boston, Mass., was on brief for appellant, Mary Ann Schurmann.

Kevin J. O'Dea, Asst. U. S. Atty., Boston, Mass., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for appellee.

Before COFFIN, Chief Judge, KUNZIG, ^* Judge, U.S. Court of Claims, DUMBAULD, ^** Senior District Judge.

DUMBAULD, District Judge.

The Travel Act of September 13, 1961, 75 Stat. 498-99, 18 U.S.C.A. § 1952, for violation of which defendants-appellants were convicted, ¹ provides as follows:

(a) Whoever travels in interstate or foreign commerce or uses any facility in interstate or foreign commerce, including the mail, with intent to

(1) distribute the proceeds of any unlawful activity; or

(2) commit any crime of violence to further any unlawful activity; or

(3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity,

and thereafter performs or attempts to perform any of the acts specified in subparagraphs (1), (2), and (3), shall be fined not more than $10,000 or imprisoned for not more than five years, or both.

(b) As used in this section 'unlawful activity' means (1) any business enterprise involving gambling, liquor on which the Federal excise tax has not been paid, narcotics, or prostitution offenses in violation of the laws of the State in which they are committed or of the United States, or (2) extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States.

This legislation was enacted as part of Attorney General Robert F. Kennedy's attack on organized crime. It was specifically directed "against the racketeer who conducts an unlawful business but lives far from the scene in comfort and safety, as well as against other hoodlums. . . . Obviously, we are not trying to curtail the sporadic, casual involvement in these offenses, but rather a continuous course of conduct sufficient for it to be termed a business enterprise." ²

Accordingly, to establish a violation of the statute the Government must prove: (1) interstate travel (or use of interstate facilities); (2) with intent to promote or facilitate an unlawful activity (to wit, in the case at bar, a "business enterprise involving . . . prostitution offenses in violation of the laws of the State in which they are committed"); (3) followed by performance (or attempted performance) of acts promoting or facilitating such unlawful prostitution.

The crucial issue in the case at bar is the existence Vel non of intent to promote a "business enterprise" involving prostitution offenses in violation of the laws of Maine, where the sexual conduct here involved took place. ³

The female defendants contend that they are merely actresses, dancers, or entertainers and that they proceeded to Lewiston to engage in what was to be nothing more than a theatrical performance; and that the sex acts were a casual and spontaneous response to propositions made after their arrival in Maine, and hence that the element of intent required by the statute in order to convict them did not exist at the time they crossed the state line. This would be a good defense if it had been believed by the jury. However, the jury's finding to the contrary is supported by adequate and substantial evidence in the record. The court in its charge squarely and fairly instructed the jury that the female defendants could not be convicted unless they "specifically intended to carry on and facilitate the carrying on of prostitution."

There was overwhelming evidence that the male defendant operated a large-scale prostitution enterprise, ⁴ with which the female defendants were associated, insofar as the trip to Maine was concerned.

Robert Skinner, a government informant (who was an ex-convict and had a drug charge dismissed for cooperation, but was evidently believed by the jury notwithstanding an appropriate cautionary instruction by the Court), testified that he was in the apartment where the male defendant lived with the female defendant Deborah Tallent, when a phone call was received by Deborah from "two steadies in Maine." Coran explained to Skinner that they "need some girls up there," that there was to be a convention with "maybe 300 guys." He said they were short a girl, and asked Skinner to provide one. Skinner made a phone call, ostensibly to locate another prostitute, but actually for the purpose of alerting government agents. Deborah put her luggage in Coran's Lincoln town car but came back "and waved her vibrator and said, 'I almost forgot the most important thing.' " (Tr. I, 15-19, 47) (Hereafter the day of trial will be indicated by roman numerals.)

Deborah Tallent picked up Mary Ann Schurmann in Boston and told her "Mark told us to get going out of Boston by 1:30." Schurmann phone for another girl who was pre-engaged, and Tallent said "Oh well, we will have to handle it together." (Tr. I, 82).

Coran later told Skinner, after completion of the mission to Maine "that they really made a bundle of money. He had a pocket full of money. He threw it on the bed about two or three grand. He said, 'listen, you really should have got some girls. You should have come up with the girls. They made a nice stash on this.' " (Tr. I, 25).

This evidence sufficiently establishes that the three defendants were united in a plan or enterprise having as its object the commission of unlawful prostitution offenses in Maine. In the execution of the conspiracy interstate travel and use of interstate facilities was contemplated and in fact took place.

With respect to the requirement that the "prostitution offenses" ⁵ must be "in violation of the laws of the State in which they are committed," defendants contend that the Maine law prohibiting prostitution ⁶ is unconstitutional and void, as a violation of an asserted federal constitutional right to "privacy."

Whatever view one may take of the scope of "privacy," ⁷ which as counsel indicated at argument is an unsettled and developing area of the law, ⁸ it seems clear that defendants in the case at bar are not entitled to the benefits of such protection as the law of "privacy" might afford under appropriate circumstances. They are foreclosed by the well-settled and longstanding rule that "(o)ne who would strike down a state statute as obnoxious to the Federal Constitution must show that the alleged unconstitutional feature injures him." ⁹

The testimony clearly shows that the female defendants here did not operate discreetly with any pretensions to privacy, but publicly solicited potential customers.

Upon their arrival at Lewiston, the female defendants after a telephone call to Roland Tanguay (the president of the Montagnard Club who had made the call to Boston to obtain the services of the girls for the club's stag show) were each provided with a room at the Ramada Inn. Tanguay and Donald Rioux, a maintenance man at the club, came to escort them to the club (Tr. II, 37). Before leaving the motel, however, Tanguay went into one room with the female defendant Schurmann, and Rioux into the other room with the female defendant Tallent. (Tr. II, 37, 44). According to Rioux's testimony "she performed oral sex on me" and "I put $20 on the bureau." (Tr. II, 43-44). ¹⁰ Tanguay had given him the money when he said he "couldn't afford it" (Tr. II. 46, 117-118).

The "exotic dancing" performance put on by the female defendants at the club was itself sexually suggestive. While nude (Tr. II, 62 (Rioux), 149 (Schurmann), 198 (Tallent)), they took one man out of the audience and wrestled him down to the floor, onto a red blanket. (Tr. II, 62 (Rioux), 70 (George Rouleau, vice president of the club)). According to defendant Schurmann, they were "just fooling around . . . dancing, and you know" (Tr. II, 172). According to defendant Tallent "We just danced with him." (Tr. II, 237). No witness testified that any sexual activity took place, though the Government's brief states that "(d)uring the show they performed sexual acts with an unidentified member of the Montagnard Club".

After the show, both female defendants circulated among the male audience drinking at the bar and solicited sexual intercourse, specifying $25 as the price and the Ramada Inn as the place (Tr. II, 92-96, 119-20). According to defendant Schurmann, it was she who was "propositioned" by the men. They "asked me if I wanted to have sex" and "offered money."

Q. What was said? Anything about money?

A. They offered money.

Q. How much?

A. Twenty-five dollars.

Q. And what did you say?

A. Well, I said, "All right."

Q. Did you tell them that you would be back at the Ramada Inn?

A. Yes.

Q. And did you later go back to the Ramada Inn?

A. Yes.

Q. Go to your room?

A. Yes.

Q. Did you engage in sexual activity for money with some person in your room?

A. Yes.

Q. How many persons?

A. Probably two, maybe three.

Q. And were you paid some money?

A. Yes. (Tr. II, 142-43).

Some men preceded the female defendants back to the motel, to show them the way. Later other men followed. They were noisy and milling around in the hallway of the motel. (Tr. I, 99; II, 199-201). The government agents saw the female defendants going in and out of the bedrooms, and also observed men going in and out of those rooms (Tr. I, 100). After an argument between the two defendants, they returned...