U.S. v. Truglio

• Citation: 731 F.2d 1123
• Decision Date: 05 April 1984
• Docket Number: 83-5104,83-5115,Nos. 83-5103,s. 83-5103
• Parties: UNITED STATES of America, Appellee, v. Joseph Vincent TRUGLIO, Appellant. (Two cases) UNITED STATES of America, Appellee, v. Phillip PAVILACK, Appellant. UNITED STATES of America, Appellee, v. Roberta Mae EBRIGHT, Appellant. UNITED STATES of America, Appellee, v. Florence HESS, Appellant. to 83-5117, 83-5119 and 83-5120.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 1123

731 F.2d 1123

UNITED STATES of America, Appellee, v. Joseph Vincent TRUGLIO, Appellant. (Two cases)

UNITED STATES of America, Appellee, v. Phillip PAVILACK, Appellant.

UNITED STATES of America, Appellee, v. Roberta Mae EBRIGHT, Appellant.

UNITED STATES of America, Appellee, v. Florence HESS, Appellant.

Nos. 83-5103, 83-5104, 83-5115 to 83-5117, 83-5119 and 83-5120.

United States Court of Appeals, Fourth Circuit.

Argued Jan. 11, 1984.

Decided April 5, 1984.

Thomas A. Livingston, Pittsburgh, Pa., for appellant Truglio.

Robert P. Fitzsimmons, Wheeling, W.Va., for appellant Ebright.

Jacob M. Robinson, Wheeling, W.Va., for appellant Hess.

David J. Joel, Wheeling, W.Va., for appellant Pavilack.

Thomas O. Mucklow, Asst. U.S. Atty., Wheeling, W.Va., Richard M. Yurko, Third Year Law Student (William A. Kolibash, U.S. Atty., Wheeling, W.Va., on brief), for appellee.

Before WINTER, Chief Judge, and MURNAGHAN and SPROUSE, Circuit Judges.

MURNAGHAN, Circuit Judge:

Joseph Vincent Truglio, Florence Hess, Roberta Mae Ebright and Phillip Pavilack appeal from their convictions arising from their participation, in varying manners and degrees, in the operation and management of the King of the Road Health Spa, a house of prostitution in Wheeling, West Virginia.

Truglio, Hess, Ebright and Pavilack were indicted on November 19, 1982. In a twenty-five count indictment, appellants were charged with numerous violations of the Racketeer Influenced and Corrupt Organizations Act (18 U.S.C. Sec. 1962(c) and (d)), ¹ the Travel Act (18 U.S.C. Sec. 1952(a)(3)), ² and the Mann Act (18 U.S.C. Sec. 2422)). ³ Truglio was also indicted for two alleged violations of 18 U.S.C. Sec. 2511(1)(a). ⁴ The indictments covered activities of the appellants from March 11, 1980 to November 19, 1982.

Truglio owned and operated the King of the Road Health Spa located in Wheeling, West Virginia. Pavilack was described in the indictment as "a courier ... [who] assisted in the operation of the King of the Road Health Spa." Ebright and Hess were each described as "a manager at the King of the Road Health Spa" who "assisted in its operation."

The parties stipulated that prostitution was ongoing at the King of the Road. Testimony at trial showed that the prostitutes traveled to past residences on off-days or vacations. With respect to travel from outside the state to Wheeling, the evidence demonstrated that many of the prostitutes traveled from other states to work at the King of the Road. No evidence was presented at trial to indicate that the travel occurred for any reason other than prostitution.

The managerial nature of the roles of Ebright and Hess was exemplified by the testimony of Carmen Micha Jacobs, a prostitute at the King of the Road. When asked how she came to be employed at the establishment, Jacobs testified that she had met "a girl named Gypsy" who had provided her with a phone number. Jacobs called the phone number and spoke with Hess, who told her to call back. Instead, Ebright called Jacobs and told her that she "could come in."

Pavilack is referred to by the parties as a "courier," "go-fer," and "taxi-driver." Upon notification by either Hess or Ebright, Pavilack would transport women from the nearby Holiday Inn in Wheeling, West Virginia, where they had appeared, or transport them back to the Holiday Inn, where they would wait to travel, in some cases, to other states. Pavilack also took the women to and from the doctor's office on Wednesdays for their examinations. His further duties included the buying of groceries for the women, since most of them lived at the King of the Road when they were in Wheeling. Finally, witness Hickman, a prostitute, testified that she had paid rent to Pavilack so that she would have an address in Wheeling.

The women paid Pavilack directly for his courier services at the rate of five dollars per person. He was not in any way paid by the enterprise for his services. FBI surveillance teams observed Pavilack and the King of the Road for approximately two years, yet never saw him participating in other activities. No one ever saw him transport a woman across the state line.

On June 19, 1982, pursuant to a warrant issued by the district court, federal law enforcement officials conducted a search of the Truglio's residence. The warrant allowed seizure of:

currency, books, records, indices, movies regarding the interstate prostitution operation located at the King of the Road Health Club ..., and also controlled substance and paraphernalia relating thereto ...

During the search, the agents seized an extensive array of items, including eight audio cassettes, discovered in the kitchen cupboard.

The agent in charge of the search later testified that he did not listen to the cassettes while on the premises, and did not know what they were at the time of seizure. He first listened to the tapes "back in the office." The district court denied Truglio's pre-trial motion to suppress. Three of the eight cassettes were ultimately introduced into evidence and played for the jury.

The district court also denied pre-trial motions from all defendants for a change of venue within the district. The change of venue motion concerned the district court's decision to hold the trial in Clarksburg, rather than Wheeling, West Virginia, both of which are located in the Northern District of West Virginia. All of the defendants and defense witnesses resided in Wheeling. Three of the four defense attorneys resided in Wheeling, with the fourth only sixty miles away.

The district court nonetheless decided to hold the trial in Clarksburg, one hundred and twenty-two miles, and three hours' driving time from Wheeling. The judge based his decision on the fact that he had just moved from the Southern District of West Virginia, and, while he had managed to set up his Clarksburg office, he had yet to do so in Wheeling. Fearing that it would be too difficult to preside over the trial at the same time as he was trying to set up his facilities and get his support staff in working order, he denied the motion for a change of venue.

The nine-day jury trial, in Clarksburg, began on March 24, 1983. All four appellants were found guilty of the two alleged RICO violations. Truglio and Pavilack were found guilty of three Mann Act violations. As for the Travel Act, Truglio was convicted of twelve violations, Hess of nine, Ebright of seven, and Pavilack of four.

On May 10, 1983 appellants were sentenced. Truglio received two concurrent twenty-year sentences and a $20,000.00 fine for the RICO counts. He received an additional five-year sentence and $2,000.00 fine for each of the remaining fifteen counts. The five-year sentences were to run concurrently with each other, but consecutively to the RICO punishments. ⁵ Hess, Ebright and Pavilack received concurrent five-year sentences and fines of $1,000.00 for each of the counts of which they were convicted.

On appeal, the parties raise twenty-four issues. After consideration of the briefs and record, we find the majority of the claims to be without merit, and summarily affirm. ⁶ We restrict our discussion to the remaining issues, which, in our view, merit closer consideration.

I.

We first consider Appellant Truglio's contention that the district court erred in failing to suppress the audio cassettes seized from the kitchen cabinet. Truglio argues that to allow a search warrant referring to "records" to reach audio cassettes, would be to sanction an impermissible, exploratory search. He argues further, that, since the items to be seized were books, the seizure involves both Fourth Amendment and First Amendment considerations. Thus, he argues, the adequacy of the search warrant must be measured by an extremely stringent test of specificity.

Contrary to Truglio's assertion, the seizure of the audio cassettes does not involve First Amendment considerations. The warrant authorized seizure of items including "... books, records ...." Not all books, however, are automatically deserving of First Amendment protections in this context. Instead, "the constitutional requirement that warrants must particularly describe the 'things to be seized' is to be accorded the most scrupulous exactitude when the 'things' are books, and the basis for their seizure is the ideas they contain." Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 511, 13 L.Ed.2d 431 (1965) (emphasis supplied, citations omitted).

The word "books" in the context of a phrase like "books and records" has, of course, a quite different meaning. A "book" which is no more than a ledger of an unlawful enterprise thus might stand on a quite different constitutional footing from the books involved in the present case.

Id. at 485, n. 16, 85 S.Ct. at 512, n. 16. Unlike in Stanford, supra, the books and records to be seized from Truglio were not to be seized for the ideas they contained. "The items named in this warrant were evidentiary materials, and their seizure did not threaten to deprive the public of access to protected material." United States v Jacobs, 513 F.2d 564, 567 n. 3 (9th Cir.1975). ⁷

Since the records at issue do not implicate the First Amendment,

the test for the necessary particularity is a pragmatic one: "The degree of specificity required when describing the goods to be seized may necessarily vary according to the circumstances and type of items involved ... [T]here is a practical margin of flexibility permitted by the constitutional requirement for particularity in the description of items to be seized." United States v. Davis, 542 F.2d 743, 745 (8th Cir.1976).

United States v. Torch, 609 F.2d 1088, 1090 (4th Cir.1979), cert. denied, 446 U.S. 957, 100 S.Ct. 2928, 64 L.Ed.2d 815 (1980). Accord, United States v. Espinoza, 641 F.2d 153, 165 (4th Cir.1981), cert. denied, 454 U.S. 841, 102 S.Ct. 153, 70 L.Ed.2d 125 (1981). See also United States v. Cortellesso, 601 F.2d 28, 32 (1st Cir.1979), cert. denied, 444 U.S. 1072, ...