U.S. v. Holcomb, 85-2669

• Decision Date: 22 August 1986
• Docket Number: No. 85-2669,85-2669
• Citation: 797 F.2d 1320
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles HOLCOMB and Ed Wallach, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1320

797 F.2d 1320

UNITED STATES of America, Plaintiff-Appellee, v. Charles HOLCOMB and Ed Wallach, Defendants-Appellants.

No. 85-2669.

United States Court of Appeals, Fifth Circuit.

Aug. 22, 1986.

Dick DeGuerin, Houston, Tex., for Charles Holcomb.

Scott Ramsey, Harry Nelson Monck, Houston, Tex., for Ed Wallach.

Henry K. Oncken, U.S. Atty., Susan L. Yarbrough, James R. Gough, Asst. U.S. Attys., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before GEE, RANDALL, and DAVIS, Circuit Judges.

GEE, Circuit Judge:

Today we consider the appeals of two men found guilty of violating the Travel Act, 18 U.S.C. Sec. 1952, and the Mann Act, 18 U.S.C. Sec. 2422, by participating in an interstate prostitution ring. Their appeals require us to make several rulings. First, the defenses presented at trial were not antagonistic enough to mandate severance. Second, the Mann Act counts of the indictment were insufficient because they mention nothing about an essential element of that statute: the use of a common carrier to cross state lines. We therefore reverse the convictions under these counts. Finally, although appellant Wallach's guilt is clear, insufficient evidence supports Holcomb's convictions on the other counts. Judgment against him is accordingly reversed.

During 1982 and 1983, Penelope Hatteras operated several businesses in Houston, Texas, Dallas, Texas, Atlanta, Georgia, and Denver, Colorado. Although the advertised purpose of these businesses was to provide "nude modeling and escort services," they were really fronts for an interstate prostitution ring: telephone receptionists would receive calls from customers and dispatch "models" to handle the requests. Payment for the models' services could be by either cash or credit card. Appellant Charles Holcomb was the Houston operation's accountant, and Ed Wallach was a "go-fer"--or general flunky--for Hatteras.

Unfortunately for these entrepreneurs, the federal government discovered what was occurring. Hatteras, Holcomb, Wallach, and Eleanor Murphy ¹ were arrested in 1983, and later indicted on 21 counts. The indictment can be summarized as follows:

1. Count One charges conspiracy (18 U.S.C. Sec. 371) to violate the Travel Act, 18 U.S.C. Sec. 1952, ² and the Mann Act, 18 U.S.C. Sec. 2422. ³

2. Counts Two, Four, Six, Eight, Ten, Twelve, and Fourteen charge specific violations of the Travel Act by causing women to travel in interstate commerce and to then engage in prostitution.

3. Counts Three, Five, Seven, Nine, Eleven, Thirteen, and Fifteen charge specific violations of the Mann Act by inducing the same women to travel in interstate commerce, with the intent that these women engage in prostitution. ⁴

4. Counts Sixteen, Seventeen, Eighteen, Nineteen, Twenty, and Twenty-one charge violations of the Travel Act by the alleged use of interstate telephone calls between offices of Hatteras's business in Atlanta, Georgia and Houston, Texas.

Tried together, Hatteras and Wallach were convicted on all counts, while Holcomb was convicted on all but Counts Four, Five, Six, Seven, Fourteen, and Fifteen. The trial court probated the sentences, with both Holcomb and Wallach receiving three years probation for each count, their sentences to run concurrently. All three appealed, but Hatteras has since abandoned her appeal.

Both Holcomb and Wallach contend that they were entitled to severance under Fed.R.Crim.P. 14 because each presented to the jury defenses antagonistic to the other. The general rule, however, is that those indicted together are to be tried together. United States v. Stotts, 792 F.2d 1318, 1321 (5th Cir.1986). Fed.R.Crim.P. 14 allows severance, but the decision to sever lies within the trial court's discretion; we may review only for an abuse of that discretion. Id. Where allegedly antagonistic defenses are concerned, severance is required only when the defense of one party, if believed, necessarily indicates the guilt of the other. Id. In other words, the defenses must be "more than merely antagonistic--they must be antagonistic to the point of being mutually exclusive." Id., quoting United States v. Berkowitz, 662 F.2d 1127, 1133 (5th Cir.1981). The prototypical example is a trial in which each of two defendants claims innocence, seeking to prove instead that the other committed the crime.

Antagonistic defenses, however, do not result solely when each defendant points the finger at the other; "[s]everance may be required if only one defendant accuses the other, and the other denies involvement." United States v. Romanello, 726 F.2d 173, 177 (5th Cir.1984). Nor need the accusation be explicit. In United States v. Johnson, 478 F.2d 1129 (5th Cir.1973), defendant Smith argued that he was a government informer whose only purpose in helping commit the crime was to aid the police; defendant Johnson, on the other hand, contended that he simply had nothing to do with the crime. We determined that Johnson was entitled to a new trial; although Smith never explicitly accused Johnson, in order to accept his defense, the jury would necessarily have had to disbelieve Johnson's. Appellants rely on Johnson in arguing that an abuse of discretion occurred; we must therefore analyze the defenses presented at trial to discern the degree to which they can be said to conflict.

Hatteras and Wallach each contended that he lacked the mens rea necessary to violate any criminal law. This argument arises from the manner in which Hatteras ran her businesses. Ostensibly, the models were independent contractors who relied on Hatteras's businesses to establish contact with customers. In other words, by receiving phone calls from those desiring the "models' " services and by then notifying the models of the requests, her businesses served as brokers only: a conduit between buyer and seller. For providing such assistance, Hatteras would receive an "agency fee," skimmed off the top of the model's proceeds. She maintained that her agency was to provide only nude modeling and massage services; her telephone receptionists were instructed to refuse to assist callers explicitly requesting sexual favors. Her models, moreover, testified that Hatteras never talked to them in terms of outright prostitution. Should a model wish to discuss specifics over the telephone, Hatteras demanded complete silence on the topic of sex. In this way, she could and did argue that her part of the operation did not involve prostitution; she collected her fees for providing nude modeling and massages only, which are legal. She might send models to various addresses, but what those women did once there was allegedly beyond her control. Wallach also adopted this defense, but the jury gave it no credence.

One could easily be skeptical of their disclaimer of intent. When Hatteras told him in their first meeting that she ran only a nude modeling and massage service, for example, Holcomb immediately suspected that a prostitution operation was actually involved. Testifying, he mentioned that common sense readily allowed one to discern what was going on, despite Hatteras's asserted business objective of providing only modeling and massages. His trial defense was instead the "piano player" defense: like the piano player in a cathouse (who furnishes only music), he suspected that naughty activities were occurring but contributed no more than accounting services to Hatteras. More specifically, he contended that, as a mere accountant providing legitimate bookkeeping services, he was unaware of any models' interstate travels. Because of this ignorance, he argued, he cannot be found guilty of conspiracy or of substantive violations of the Mann Act or the Travel Act.

Because Hatteras has dropped her appeal, we need not consider how she might have been harmed by Holcomb's testimony; rather, we look to any possible prejudice either Holcomb or Wallach suffered from the defense of the other. When we do, it is immediately apparent that Holcomb cannot maintain that Wallach's defense was antagonistic to his. Wallach's defense of professed ignorance of any activity other than modeling and massaging does nothing to undermine Holcomb's asserted ignorance of interstate travel, especially considering that Holcomb himself suspected prostitution. Had the jury accepted the defense of Hatteras and Wallach--that prostitution was beyond their knowledge or control--then it seems likely that all three defendants would have been found innocent. On the other hand, even though the jury disbelieved this defense, it had to consider Holcomb's on its own merits, because his contentions are unaffected by the state of mind of Hatteras and Wallach. In Johnson, we stated that Smith's conviction was not reversible because not influenced by Johnson's defense. 478 F.2d at 1132. Smith's defense prejudiced Johnson's, not the other way round. We think that Holcomb stands in a position similar to Smith's position in Johnson. The antagonistic defenses argument is therefore unavailing for him.

Wallach stands on firmer footing in making this argument. Holcomb's testimony that he immediately suspected prostitution when told of the operation's basic structure can be viewed as antagonistic to the defense of Hatteras and Wallach. Holcomb's words challenge the credibility of a defense based on alleged inability to control the models; if it is so easy to realize how prostitution can result from the legitimate services provided, as Holcomb said it is, then one may reasonably conclude that the business's operators in fact intended this result. We nevertheless hold that severance is not required because of this. While Holcomb's words can be seen as undermining Wallach's defense, they did not form the core of Holcomb's defense. He did not base his argument on his immediate suspicion of prostitution; rather, the gist of his defense was his own alleged ignorance of the operation's interstate...