United States v. Cozzetti

Decision Date04 May 1971
Docket Number25881,No. 25880,25882.,25880
Citation441 F.2d 344
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Anthony Carlo COZZETTI, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Michael MILLER, also known as Michael Rosenthal, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Ronald Ernest GILMOUR, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit


Thomas R. Hogan (argued), San Francisco, Cal., for Cozzetti.

Robert D. Mulford, San Francisco, Cal., for Michael Miller.

George Foley, of Foley, Garner & Shoemaker, Las Vegas, Nev., for Gilmour.

Ray Little (argued), Asst. U. S. Atty., Bart M. Schouweiller, U. S. Atty., Julien G. Sourwine, Asst. U. S. Atty., Reno, Nev., for appellee.

Before CARTER and HUFSTEDLER, Circuit Judges, and BYRNE,* District Judge.

Rehearing Denied in No. 25880 May 4, 1971.

JAMES M. CARTER, Circuit Judge.

Cozzetti and Miller were convicted of conspiring to travel in interstate commerce and to use the facilities of interstate commerce for the purpose of carrying on a business enterprise involving prostitution in violation of 18 U.S.C. §§ 2 and 1952.1 Cozzetti was also convicted of transporting Charlene Travis in interstate commerce for the purpose of prostitution in violation of 18 U.S.C. § 2421. Gilmour was convicted on various counts. He filed notice of appeal but filed no briefs. The appeal in No. 25,882, is dismissed.

The following issues are raised on the appeal by Cozzetti or Miller or both: (1) sufficiency of the evidence to support the convictions, (2) constitutionality of 18 U.S.C. § 1952, (3) alleged error in refusal to grant a severance, (4) alleged violation of a sequestration order, (5) alleged error in revoking bail of one appellant during the trial, (6) constitutionality of a search incident to arrest and (7) alleged prejudicial comments by a defense counsel. We affirm as to Cozzetti and Miller.

1. Sufficiency of the Evidence.

Appellants contend that the evidence produced at their trial was insufficient to convict them of conspiring to travel in interstate commerce and to use the facilities of interstate commerce for the purpose of carrying on a business enterprise involving prostitution.

They argue that there was insufficient evidence of an agreement between them. Viewing the evidence in a light most favorable to the Government, as we must, we find ample evidence from which an agreement between Cozzetti and Miller could be inferred.

Cozzetti renewed an earlier acquaintance with Charlene Travis at a Christmas party in December, 1967. Travis testified that, after the party and before January 7, 1968, she agreed to work for Cozzetti as a prostitute and moved into his apartment in Las Vegas, Nevada. Travis testified that one morning Cozzetti placed a telephone call to a person in Los Angeles, California named Mike but did not speak to him. When Mike called back, Travis answered the phone and gave it to Cozzetti. Cozzetti told Travis that there was an opening for a girl in Los Angeles that needed filling immediately.

Cozzetti drove Charlene Travis from Las Vegas to the Los Angeles area on January 7, 1968, arriving around 3:00 a. m. at the Highlander Hotel in Hollywood. Around 10:00 a. m. Mike Miller (known then as Mike Rogers) arrived at the motel and took Cozzetti and Travis to Apartment 205 at the Orion Apartments on Arch Drive in Studio City, which he had rented under the name of Mike Rogers in late November of 1967. He remained as a tenant until March of 1968. Cozzetti told Travis that the apartment was the place she was to work as a prostitute.

Travis testified that she moved into the Orion Apartment and worked there as a prostitute for three weeks. The method of operation was for Miller to come to the apartment in the morning when telephone calls were placed to men, using a trick book with names and telephone numbers provided and kept by Miller. In the afternoon, the men called to set up appointments to see Travis. Miller came by in the evening to pick up his share of Travis' earnings, which was one-half of what she made, out of which Miller paid for the apartment. Travis gave the remaining portion of her earnings to Cozzetti with the understanding, made before the trip to California, that one-half of such remaining portion was hers. Cozzetti came to the apartment twice to pick up money and discussed daily the amount of earnings with Travis on the telephone.

After about three weeks at the Orion Apartment, Travis decided that she wanted to break ties with Cozzetti and moved to another apartment to work as a prostitute for Miller. Travis eventually left her employment with Miller, lived with two other men in the Los Angeles area, and negotiated with Cozzetti for her return to Las Vegas.

Appellants argue that, even if there was evidence of a conspiracy to use interstate facilities with the intent of violating state prostitution laws, there was no evidence of such a conspiracy with the intent to carry on a business enterprise in violation of state prostitution laws, required for a violation of 18 U.S.C. § 1952. The words "business enterprise," as used in § 1952, refer to a continuous course of conduct rather than sporadic, casual involvement in a proscribed activity. United States v. Zizzo (7 Cir. 1964) 338 F.2d 577, 580, cert. denied 381 U.S. 915, 85 S.Ct. 1530, 14 L.Ed.2d 435 (1965). Appellants argue that the evidence of agreement to bring Charlene Travis to Los Angeles to work as a prostitute, which she did for a few weeks in one place and a short time in another, shows only sporadic, casual involvement in proscribed activity. We disagree.

The trick lists and the arrangement for division of the proceeds indicate that the operation was intended to be profitable. The defection of Travis from the operation after a short period of time, even if it were an indication that the operation is in retrospect characterizable as sporadic and casual, does not indicate that the conspirators did not intend to engage in a continuous course of conduct. 18 U.S.C. § 1952 penalizes the use of interstate facilities "with the intent" to carry on the unlawful "business enterprise." The fact that the operation was shortly terminated or was small time does not take it out of § 1952. Spinelli v. United States (8 Cir. 1967) 382 F.2d 871, 890, rev'd on other grounds, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

2. Constitutionality of 18 U.S.C. § 1952.

Appellants contend that 18 U.S.C. § 1952 is unconstitutional because the words "business enterprise" are unconstitutionally vague. This court has held that § 1952 meets the standard of certainty required by the Constitution, although we did not specifically discuss the words "business enterprise." Turf Center, Inc. v. United States (9 Cir. 1963) 325 F.2d 793, 795. Accord, Spinelli v. United States, supra, 382 F.2d at 887-888. Those words do not introduce unconstitutional vagueness into the statute. United States v. Smith (E.D.Ill. 1962) 209 F.Supp. 907, 918, and cases cited therein. See generally, United States v. Roselli (9 Cir. 1970) 432 F.2d 879, cert. denied 401 U.S. 924, 91 S.Ct. 883, 27 L.Ed.2d 828, 2/22/71, as to the intent of Congress in enacting the section.

3. Denial of Severance.

Appellants contend that the trial court's failure to grant their motions for severance of their trial from the trial of the codefendant, Ronald Gilmour, was reversible error under Rule 14, F.R. Crim.P.

The trial below involved five counts of the eight count indictment returned against appellants and Gilmour; a count, under which Cozzetti and Miller were eventually convicted, charging the three with conspiracy to use interstate facilities to carry on a business enterprise involving prostitution; a substantive count, under which Cozzetti was eventually convicted, charging him with transporting Charlene Travis on January 7, 1969 from Las Vegas to Los Angeles for the purposes of prostitution; and three substantive counts, under which Gilmour was eventually convicted, charging him with transporting Joan Steinberg on three different dates between Las Vegas and California for the purposes of prostitution. The four substantive violations were alleged to be overt acts pursuant to the conspiracy. At the end of the prosecution's case, each of the three codefendants moved for judgments of acquittal on the conspiracy count, which were denied as to Cozzetti and Miller and granted as to Gilmour. The trial court denied the subsequent motions of Cozzetti and Miller for severance of their trials from Gilmour's.

There is no question that the initial joinder of the defendants was proper under Rule 8(b), F.R.Crim.P., and that failure of proof of the conspiracy that made possible the joinder is not a ground for severance under Rule 14, F.R.Crim. P., absent prejudice. Schaffer v. United States, 362 U.S. 511, 80 S.Ct. 945, 4 L. Ed.2d 921 (1960); Fernandez v. United States (9 Cir. 1964) 329 F.2d 899, 906, cert. denied, 379 U.S. 832, 85 S.Ct. 62, 13 L.Ed.2d 40 (1964). Appellants argue that they were prejudiced by trial with Gilmour by complicated circumstantial evidence, much of which involved illegal and immoral conduct with which they had no established connection, that even with limiting instructions left the jury hopelessly confused.

The decision under Rule 14 to grant or deny severance because of prejudice in the trials of defendants who are properly jointly indicted is within the sound discretion of the trial court. Opper v. United States, 348 U.S. 84, 85, 75 S.Ct. 158, 99 L.Ed. 101 (1954). The resolution of the question on appeal, whether the discretion was abused, depends on the facts of each case. Daut v. United States (9 Cir. 1968) 405 F.2d 312, 314. The trial court must weigh, on a case by case basis, the advantage to the administration of justice of joint trial against the prejudice to the defendants. The trial court need not...

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