U.S. v. Herrera

• Decision Date: 03 August 1978
• Docket Number: Nos. 1118,1119 and 1120,D,s. 1118
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carlos HERRERA, Victor Hugo Herrera, and Felipe Santiago Herrera, a/k/a"Chiquito", Defendants-Appellants. ockets 78-1145, 78-1146 and 78-1147.
• Court: U.S. Court of Appeals — Second Circuit

Page 1137

584 F.2d 1137

UNITED STATES of America, Plaintiff-Appellee, v. Carlos HERRERA, Victor Hugo Herrera, and Felipe Santiago Herrera, a/k/a"Chiquito", Defendants-Appellants.

Nos. 1118, 1119 and 1120, Dockets 78-1145, 78-1146 and 78-1147.

United States Court of Appeals, Second Circuit.

Argued May 26, 1978.

Decided Aug. 3, 1978.

Kassner & Detsky, P. C., New York City (Herbert S. Kassner, New York City, of counsel), for appellants Carlos Herrera and Felipe Santiago Herrera.

Ralph J. Schwarz, Jr., New York City, for appellant Victor Hugo Herrera.

Peter D. Sudler, Asst. U. S. Atty., New York City (Robert B. Fiske, Jr., U. S. Atty., S. D. N. Y., Gaines Gwathmey, III, and Richard D. Weinberg, Asst. U. S. Attys., New York City, of counsel), for appellee.

Before OAKES, Circuit Judge, and BLUMENFELD ^* and MEHRTENS, Senior District Judges. ^**

MEHRTENS, Senior District Judge.

Carlos Herrera, Victor Hugo Herrera and Felipe Santiago Herrera appeal from a judgment of conviction entered after a jury trial upon a four-count indictment.

Count 1 charged each of the Herrera brothers with conspiracy to harbor illegal aliens and use of the facilities of interstate commerce to operate an illegal enterprise, in violation of Title 18 U.S.C. § 372.

Count 2 charged each of the Herrera brothers with harboring illegal aliens whom they employed as prostitutes, in violation of Title 8 U.S.C. § 1324.

Count 3 charged each of the Herrera brothers with using the facilities of interstate commerce to conduct a house of prostitution, an illegal enterprise under the laws of New York, in violation of Title 18 U.S.C. § 1952.

Count 4 charged Victor Hugo Herrera with illegally re-entering the United States after having once been deported, in violation of Title 8 U.S.C. § 1326.

The jury returned guilty verdicts against all three defendants on Counts 1, 2 and 3, and against Victor Herrera on Count 4.

All defendants now appeal, urging numerous points of error. Finding none of their contentions meritorious, we affirm.

The Facts

Viewed in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), the evidence and reasonable inferences therefrom showed:

For two and a half years Carlos, Victor and Felipe Herrera, three brothers from Argentina, owned and operated a large "massage parlor" known as the Pleasure Seekers Club in New York City, which was in fact a house of prostitution.

During the period alleged in the indictment, June 1975 to October 1977, the Herrera brothers took an active role in the operation of the Pleasure Seekers Club. Each was physically present at the club in a managerial capacity, and each brother participated in hiring and paying the prostitutes employed there. Carlos was most active in the management in that he rented the space and supervised the remodeling and the installation of the security and alarm systems. Both Carlos and Victor explained the various house rules of procedure to the prostitutes, while Felipe functioned as the "bouncer" in addition to other duties.

The profitable operation of the Pleasure Seekers Club depended upon the defendants' ability to offer prostitutes a secure place to work where there would be little chance of arrest by the New York City Police (NYPD), or for non-citizens, detention and deportation by the Immigration and Naturalization Service (INS). The defendants used various means in their attempts to maintain such security. Among these were: (1) "Hostess" agreements, which the prostitutes were required to sign on a weekly basis, stating that the signatory was not involved in prostitution, apparently hoping that this would provide a basis to deny knowledge of prostitution on the premises; and (2) a security system, including closed-circuit television and alarms, which would signal the prostitutes of the presence of either NYPD or INS officials.

Four prostitutes who were employed by the defendants testified as to the daily operation of the Pleasure Seekers Club. Each went to the Pleasure Seekers Club seeking employment as prostitutes and was hired by one or more of the defendants. Once hired, these witnesses discovered that the club employed between 30 and 50 prostitutes at a given time. At the end of the working day the women were paid approximately one half of the face value of their tickets, less an additional 10% For "protection" and legal fees, as well as certain miscellaneous charges for laundry and keys. The women earned between $100 and $250 a day for their work as prostitutes and worked seven days a week.

Among the women employed by the Herrera brothers as prostitutes were numerous illegal aliens. On June 4, 1976, a raid of the club by INS resulted in the arrest of ten women for being in the United States illegally. The prostitutes who testified stated that the illegal aliens were assigned to work in the "middle section" of the club. It had a direct exit to the street to facilitate escape.

The club leased an extensive video security system and utilized a method of alarm signals to warn the prostitutes of any raid by the police or the Immigration Service. The women were instructed that the sounding of a long single alarm meant an INS raid, and the sounding of two alarms meant a police raid. In the event of an INS raid, the illegal aliens were instructed by the defendants to get dressed, quietly go to the middle section and, if possible escape via the back staircase.

All three of the Herrera brothers were active in efforts to conceal the presence of the illegal aliens at the club from the Immigration Service. One of the prostitutes, who was concerned about her illegal immigration status, told both Carlos and Victor on several occasions that she was in the country illegally, and was assured by Carlos that she would be forewarned by the alarm of any INS raid. On one occasion Victor told her and other prostitutes that he suspected an impending raid by the Immigration Service and that the women should await his orders. On at least one occasion, during November 1975, Carlos instructed a resident alien prostitute from the Dominican Republic always to maintain that she was from Puerto Rico, as this was part of the rules of the house in regard to aliens. On May 19, 1976 two INS officials went to the premises of the Pleasure Seekers Club. They identified themselves to Felipe, who was at the front counter, whereupon Felipe ran toward the rear portion of the building yelling "Immigration" several times in Spanish to warn the prostitutes of the presence of INS.

From June 1976 to October 1977 Carlos and Felipe Herrera lived at a condominium in New Jersey and commuted on a daily basis to and from their business at the club in Manhattan. During the same period Victor visited his former common-law wife and son at the same condominium in New Jersey, staying overnight and then going to work at the club in New York. All three Herrera brothers were at the condominium regularly.

A number of interstate telephone calls were made by the defendants relating to the business of the Pleasure Seekers Club. The man who installed and maintained the closed circuit television system returned a phone call from his New York office to Carlos Herrera in New Jersey concerning the leasing of video security equipment at the club. A New Jersey prostitute, who commuted to her employment at the club in New York on a daily basis, received several telephone calls at her home in New Jersey from Victor and others from the "Club" in New York inquiring as to her whereabouts when she failed to report for work. In addition, the government produced telephone toll records that showed hundreds of phone calls between the club in New York and each of the defendants' three condominiums in North Bergen, New Jersey over a period of several months in 1977.

On the evening of June 6, 1976, when the defendants and some of the prostitutes were being detained at INS headquarters, Carlos made a hand gesture toward an illegal alien prostitute whom he employed, indicating that she would be shot if she gave information against him to INS officials.

Subsequently, during July 1976, Carlos threatened the life of her child in Argentina and also her fiance. She was taken to Herrera's lawyer's office where she was forced to sign an affidavit alleging that INS officials had tortured her to gain her cooperation.

Following the defendants' indictment in October 1977, Victor and Felipe met with the estranged husband of an illegal alien prostitute who had given information to INS against the defendants. The Herreras asked him to influence her not to testify against them. At two subsequent meetings in January and February, 1978, respectively, Carlos threatened harm to their child if he did not so influence his wife. Victor was present on one of these occasions.

At the trial Victor stipulated that on April 16, 1971 he was deported from the United States; that after his deportation he later made an unauthorized re-entry into the United States; that he was found at the Pleasure Seekers Club in New York on June 4, 1976 and that he had never secured the required permission of the Attorney General of the United States to re-enter.

Asserted Misjoinder of Counts and Nonseverance of Parties

The defendants contend their convictions should be reversed because of impermissible joinder of offenses and of defendants.

In order to avoid proof under Count 4 that while illegally in the United States on a prior occasion he was a procurer and engaged in a business that enabled him to live off the proceeds of prostitution, Victor, as a matter of trial strategy, stipulated that he had been deported in 1971; that he re-entered the United States and was found at the Pleasure Seekers Club on June 4, 1976; and that his re-entry was not authorized by the Attorney General, thereby admitting his guilt. This stipulation was agreed to by Victor and his attorney and also by Carlos' attorney. This was the only...