U.S. v. Price

• Decision Date: 09 March 1978
• Docket Number: 77-1676,77-1609 and 77-1608,Nos. 77-1929,s. 77-1929
• Citation: 577 F.2d 1356
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Arnold J. PRICE, Charles R. Mitchell, William Pernar Mitchell, a/k/a Bill Mitchell, and Bobbi Mitchell, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1356

577 F.2d 1356

UNITED STATES of America, Plaintiff-Appellee, v. Arnold J. PRICE, Charles R. Mitchell, William Pernar Mitchell, a/k/a Bill Mitchell, and Bobbi Mitchell Defendants-Appellants.

Nos. 77-1929, 77-1676, 77-1609 and 77-1608.

United States Court of Appeals Ninth Circuit.

March 9, 1978.

Rehearing and Rehearing En Banc Denied June 12, 1978.

John J. O'Connell (argued), Tacoma, Wash., for defendants-appellants.

James Moore, Asst. U. S. Atty. (argued), Seattle, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before CARTER AND HUFSTEDLER, Circuit Judges, and SMITH, ^* District Judge.

RUSSELL E. SMITH, District Judge:

Defendants Arnold Price, Charles R. Mitchell, William P. Mitchell, and Bobbi Mitchell were convicted of a conspiracy to transport two women, Shelly and Debbie, ¹ in interstate commerce for purposes of prostitution, and Charles R. Mitchell was convicted of transporting Debbie from Washington to Oregon for purposes of prostitution.

Because of the confrontation problem arising as to Charles Mitchell, we set out the evidence supporting the conviction in more detail than ordinarily would be necessary. The detail is necessary to disclose, as to Charles Mitchell, the overwhelming nature of the evidence.

William P. Mitchell and his wife, Bobbi Mitchell, owned and operated Daisy Mae's Massage Parlor in Anchorage, Alaska. William Mitchell told a police officer of his ownership. It was stipulated that checks drawn on the account of Bobbi Mitchell and William Mitchell, signed by William Mitchell, were issued in payment of the earnings of female employees of the massage parlor. Bobbi Mitchell, in a taped conversation with Shelly and Debbie, implicated William Mitchell in the operation of the business. In the same taped conversation she revealed that the parlor was operated for purposes of prostitution. The conversation was lengthy and explicit in sexual detail. William Mitchell and Charles Mitchell were brothers, and telephone records show that there was communication over the telephones listed to Daisy Mae's Massage Parlor and Bobbi Mitchell in Anchorage and the telephone listed to Charles Mitchell in Vancouver, Washington.

In June 1976 Charles R. Mitchell told his friend Arnold Price of Daisy Mae's Massage Parlor and stated that anyone working there could make good money. He asked Price to let him know if he found anyone who would be interested in working in the massage parlor. This is proven not only by the statements of coconspirator Price, but by Price's testimony, given when he took the stand in his own behalf, and that testimony is corroborated by all of the subsequent happenings. Price, while employed by CETA, learned from Shelly, a fellow worker at CETA, that she had at one time been a prostitute. On July 26, 1976, while Shelly was visiting the CETA offices, Price advised her of the Alaskan massage parlor and told her that she could make $1,000 to $2,000 a month working there. Shelly said that she was interested and asked Price if he would arrange a meeting with his friend. Shelly advised her friend Debbie of the proposal, and then Debbie called Price and asked if she also could meet his friend. Price said "yes." These facts were proved by the testimony of Shelly, Debbie, and Price. Price's testimony as to his conversation with Shelly was as follows:

A I don't remember exactly what was said but then I suggested to her that if she was interested in working in a sauna in Alaska, that she might want to check with a friend of mine.

Q And what was her response?

A She sort of raised her eyebrows and said, "That sounds interesting," and that was about all.

Q Now at that time did you say anything regarding the amount one could earn or whether prostitution was part of it?

A I believe I said she could make, maybe, $1,000 or $2,000 a month, or something like that. I don't remember exact figures.

Q Did you say anything about prostitution?

A I said, when I mentioned working in the sauna, she said, "Doing what?" and I said, "Whatever," or "Tricks," you know, "Turning tricks."

Q What did you mean when you said "turning tricks"?

A I meant prostitution.

Unbeknownst to Price, Shelly, who had been in marijuana trouble, was cooperating with the county drug enforcement officers. She advised the sheriff's office of Price's proposal. The sheriff's office in turn advised the FBI, and ultimately Shelly was asked to pursue the matter. Shelly called Price to arrange a meeting to discuss his offer. Price took Shelly and Debbie to Mitchell's house on August 5, 1976. The fact of this meeting at Charles Mitchell's house was proved by the testimony of Shelly, Debbie, and Price, and surveilling officer Smith. Smith took pictures of the women, Price, Price's car, and the Charles Mitchell house. That the meeting took place and that the conversation (not taped) related to Alaska is corroborated by a note shown to be in Charles Mitchell's handwriting and given by him to Shelly. The note bears Charles Mitchell's name, address, phone number, and the word "Alaska." After the meeting, Shelly delivered the note to the officers, who initialed it and dated it August 5th, 1976.

On August 9th, in a taped telephone call to Price, Shelly made arrangements with Price to have him take her back to Charles Mitchell's house. A meeting at Charles Mitchell's house, attended by Debbie, Shelly, and Mitchell, occurred on August 11th. The conversation at that meeting, which revolved about the trip to Alaska, was taped. ² On August 12th, Debbie, in a taped telephone conversation with Charles Mitchell, discussed the trip to Alaska and arranged a meeting at Charles Mitchell's house on that evening. ³ The meeting was held, and the entire conversation was taped. ⁴ The trip to Alaska was discussed in detail, and arrangements were made for the women to meet at Charles' house the next morning. That same evening, and after the meeting, there was another taped telephone conversation ⁵ between Debbie and Charles Mitchell in which the final arrangements for the transportation to Portland were made. Charles Mitchell took both women from Vancouver, Washington, to the Portland airport on August 13th. The fact of the trip is proved by Shelly and Debbie and corroborated by the testimony of a surveilling officer. Debbie testified that Charles Mitchell gave Shelly three hundred-dollar bills. By airlines personnel it was proved that two girls and a man approached the airlines counter, that one of the girls bought two tickets to Anchorage, Alaska, with three hundred-dollar bills. At the request of an officer, the airlines personnel segregated the ticket coupon and the bills. They were admitted in evidence.

Shelly and Debbie boarded the aircraft and met an FBI agent in Seattle who made reservations for them in Anchorage. In Anchorage, on August 13th, they called Bobbi Mitchell, who came to their hotel room. The business of the massage parlor was thoroughly discussed, and the taped conversation shows unequivocally that Bobbi Mitchell expected Shelly and Debbie to report for work as prostitutes on the morning of the 14th. They did not report, but rather returned to Vancouver the next morning.

It is against this background that we discuss the assigned errors.

CROSS-EXAMINATION AND CONFRONTATION :

Charles Mitchell argues that the judgment should be reversed as to him because his cross-examination of Shelly was improperly limited and his constitutional right to confront her was thereby denied.

After Shelly's first conversation with Price, she called Vic Calzaretta, the chief criminal deputy in the sheriff's office. Later she met with Calzaretta and John Dush, an officer in the narcotics unit. The cross-examination of Shelly was limited as follows: Q Had you ever worked in any capacity providing information such as that to Mr. Dush or to the individuals in the narcotics unit?

MR. MOORE: Objection, Your Honor.

THE COURT: Read the question.

(Preceding question read by the reporter.)

THE COURT: What is the purpose?

MR. KANEV: Your Honor, for some reason, as the witness pointed out, she was met not by MR. Calzaretta whom she telephoned, but by individuals of the narcotic unit.

THE COURT: So?

MR. KANEV: This line of questioning would go to her interest in the matter.

THE COURT: Sustained.

The defendant Charles Mitchell had the right to explore the relationship between the witness and the law enforcement officers (Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); United States v. Callahan, 551 F.2d 733 (6th Cir. 1977); United States v. Garrett, 542 F.2d 23 (6th Cir. 1976; United States v. Croucher, 532 F.2d 1042 (5th Cir. 1976); United States v. Harris, 501 F.2d 1 (9th Cir. 1974); United States v. DeLeon, 498 F.2d 1327 (7th Cir. 1974)), and the cross-examination was limited improperly.

Charles Mitchell's cross-examination of Shelly was limited, but the fact is that Shelly's relationship with the police was explored fully. On cross-examination by counsel for William and Bobbi Mitchell, Shelly testified that she had been arrested for possession of marijuana on May 20, 1976; that following a hearing the charge was dropped; that she was friendly with John Dush, the narcotics officer, had worked for him, and had received expense reimbursement in the amount of $34.00. It also appeared that, at the time of the events in this case, she was under a subpoena to testify before a court but that she had never had to appear. Officer Dush testified that Shelly had been a confidential informant for the narcotics division of the sheriff's office for about three months prior to events in this case and had worked on seven to nine heroin cases. Dush was fully cross-examined as to the relationship between Shelly and the narcotics division. We also note that Debbie, whose background was similar to Shelly's, was fully cross-examined as to her relationship with the officers.

The evidence...