*3
party
entrance,
made its
without arrest or
HILL,
McWILLIAMS,
and
Before
SETH
search warrants.
Judges.
Circuit
In
raiding party
Trooper Lincoln,
was
job
whose
was to secure rooms on the
HILL,
Judge.
Circuit
second floor until such time as officers had
appeal
the convictions
This
results from
to
authority
Entering
search.
the upstairs
appellants on charges
three
stem
hall,
male,
Lincoln observed a black
later
alleged
prostitu
from an
interstate
ming
appellant
identified as
Street. Lincoln
operation. Appellant Harris was con
tion
yelled
stop
for Street to
and identified him-
on all six counts of the indictment.1
victed
self as an officer of the law. Street ran
I,
Appellant
was convicted on
Counts
into a bedroom and locked the door. Lin-
IV,
III,
Appellant
and VI.
Cline was con
coln
open
and another officer forced
on
I
VI.
victed
Counts
and
door and entered the bedroom. Street was
matter,
disposition
of our
of this
Because
going
out
window
when
officers
not detail the facts
we need
apprehended him.
right
A search
around
Rather, the matters which
offenses.
are
the window
a pistol
revealed
and some mar-
of this appeal center around
determinative
ijuana. After
was
removed from the
into
appel-
admitted
evidence which
items
bedroom, Lincoln found a photograph al-
argue
suppressed
have
bum,
lants
should
been
Government’s Exhibit
protruding
illegal
of an
and seizure. The
search
fruits
inch
an
or so from underneath
one
to those
are
relevant
contentions
de-
the night
Appellant
facts
stands.
Cline and her
gave
below.
husband
tailed
consent to
at
search
2:07 a.
alleged
debauchery
I
1.
of the indictment
a violation
engage
Count
and to
in other
immoral
(conspiracy).
371
II
of 18 U.S.C.
Count
al-
practices)
§
and 18
alleged
U.S.C.
2.
IV
§
Count
(coercion
leged a
of 18
2423
§
violation
U.S.C.
(interstate
a
violation
18
§
U.S.C.
1952
rack-
prostitution,
minor female for
or enticement of
eteering) and
alleged
18 U.S.C. § 2. Count V
debauchery
purpose)
other
and
or
immoral
18
(interstate
another violation of 18 U.S.C.
2421
§
(aiding
abetting).
2
and
§
U.S.C.
Count
III
transportation
prostitution,
for
de-
alleged
(inter-
a
of 18 U.S.C.
2421
§
violation
bauchery
purpose).
and other immoral
Count
transportation of a female with the intent
state
alleged
VI
(in-
violation
§
U.S.C.
induce, entice,
compel
purpose to
and
her
voluntary servitude) and 18
§
U.S.C.
give
prostitute
up
become a
herself
. .” Consequently,
we must deter-
m.;
premises
search of
general
if the
mine
law
officers’
enforcement
ac-
made.
Clearly,
tions were reasonable here.
there
photo-
that the
first contend
time
get
arrest
search warrants
(Exhibit 71) and
album
graph
before the raid.
this
we are deal-
(the pistol and
items
the other
regarding
public place
with a
ing
dwelling.
and not a
illegal
an
were the fruits of
marijuana)
out,
government points
As the
Mrs. Cline
have been
seizure and should
search
any
(the
“horse
allowed
walker”
iden-
fake
that
contend
Appellants also
suppressed.
tity
used)
one undercover agent
who came
in ad-
its discretion
trial court abused
engage
to her door to enter and
in several
71;
preju-
they contend
mitting Exhibit
along
activities
with
patrons.
other
There
outweighed
far
effect of
exhibit
dicial
is, however, no
prac-
doubt that
better
relevancy
possessed.
it
any
raiding party
tice would have been
this
say that
impossible
for us to
It
warrants
coming
to secure
before
to Mitch-
*4
merit. This Court
contention has no
latter
ell’s Farm.
have Exhibit 71 before it because
not
does
Having
factors,
noted these
we can
lost,
during
apparently
was
exhibit
the
agree
part
appellants’
not
with that
ar
the Clerk of
from the office of
transmittal
which
gument
they
in
contend that an ar
for the
States District Court
the United
always
rest warrant must
be secured where
the
of Kansas to the office of
Clerk
District
appears why
no reason
it could not have
we cannot review
this Court. Because
In
been obtained.
Dorman v. United
unaccepta-
alleged
itself
the exhibit
States,
313,
U.S.App.D.C.
140
effect,
required
is
prejudicial
a remand
ble
(1970),
stated,
the court
“The Fourth
appellants.
all
as to
provides
Amendment
protection even as to
necessary,
a
there is
Because
remand is
public
arrest
in a
place, though in such
evi-
sufficiency
to consider
need
no
the requirement
only
cases
is
that there be
by appellants.
arguments
raised
dence
probable cause and there is no additional
however,
husbandry,
demands
judicial
Good
requirement of recourse to a warrant.”
Amend-
this Court resolve the Fourth
that
The Dorman
Ford v.
decision relied on
concerning
questions
ment
States,
259,
122 U.S.App.D.C.
United
352
pistol
marijuana.
(1965).
927
presented
F.2d
Ford
a situation
on
present one basic attack
persons
car,
where
were
in a
prob-
arrested
or not
search and seizure. “Whether
disputed
able cause was not
and warrants
Farm’ on
who raided ‘Mitchell’s
the officers
determining
had not been
In
obtained.
1972,
a
24,
first obtained
should have
June
proper
arrests were
in-
and evidence seized
no
They contend Lincoln had
warrant?”
admissible,
to the
cidental
search was
was a
right to be there because this
legal
court stated:
exigent circum-
search and no
warrantless
find no
holding
We
case
that a war-
by
government.
shown
The
are
stances
in
place
rantless arrest
for a
public
a
warrant
answers that a search
government
cause,
felony, supported
of-
by probable
Farm
not needed because Mitchell’s
fends the
validity prescribed
standard of
entered
public place
a
and the officers
Fourth Amendment. The stan-
arrests,
premises.
not to search the
to make
dard is
...
In
reasonableness.
that
government’s position is
The
States,
Draper United
211 porting requirement into a dwell- ing nighttime entry a forceful of warrants —ar- rest person reasonably a believed and search —in the ing exigent to arrest absence of circumstances. within, Resnick upon probable cause that he had involved a series of three warrantless searches. The felony, ap- pre- a where no reason court committed termitted decision the validity warrant could not peared why an arrest of the first government search and held the sought, pointed the Court have been had not met its 294, bringing burden of 87 Hayden, Warden v. 387 U.S. S.Ct. second and third searches and the (1967), subse- 18 782 and said that L.Ed.2d quent seizures exigencies within one of the certainly by nega- case “. . . stands justifying proceeding prior without approv- implication proposition tive for the that an judicial al magistrate. In that required arrest warrant in the absence of agents entered a fenced area three times exigent v. New Coolidge circumstances.” and made vantage points observations from Hampshire, U.S. S.Ct. inside the fenced tract. Following the third (1971). proceeded to L.Ed.2d 564 The Court search, warrantless the men inside the area recognize the District of Columbia Circuit’s directed law other people enforcement but acceptance of that rule Dorman de- building. raid the Arrests and seizures fol- question clined to in the case decide lowed. We think these facts are distin- Dorman, then before the Court. guishable present from those in our case greater court noted that a burden was certainly present higher degree placed on officials who enter a home with- unreasonableness. types out consent than in other of entries. *5 Upon remand, oral public place Here a is involved. The marijuana and pistol will not be entry of the officers was for the of excluded on the ground that it would be arrests; making they intended to seek con fruit illegal of an search and seizure. search, and, effectuating after sent Appellant urges arrests, Street that he was enti- did receive that consent. We do tled to a directed verdict as to Count IV single factor that time was of not believe (interstate the indictment racketeering). to obtain warrants before enter available That count reads as follows: ing to make the arrests causes the entrance subsequent 20, 1972, Mitchell’s Farm and the or May into On in the Dis- Kansas, incident to an arrest to be unreason trict of search type This does not mean that this of able. ERNEST TIMOTHY HARRIS, Rather, conduct is desirable. we sim police JAMES LOGAN, ply do not deem it unconstitutional in this ALPHONSO NEPHEW, a/k/a STREET, REED ALEXANDER where this case. This is not case Court’s LARUE, ALEXANDER REED invocable, supervisory authority is as state officials are involved. traveled in interstate commerce from cite cases
Appellants
many
dealing
Kansas,
Junction City,
to Harford Coun-
necessity
with the
for search warrants un
ty, Maryland, with intent
to:
exigent
present.
circumstances are
less
(1) Distribute the proceeds of an un-
the instant
the officers entered to
activity,
lawful
prostitution,
to wit:
in
entry
make arrests. Their
without warrant
violation of the laws of the State of
public place
as
was reasonable
this was a
Maryland;
probable
pistol
and
cause existed. The
and
(2) Commit crimes of violence to fur-
marijuana were seized in a search incident
ther
activity
the unlawful
prostitu-
of
constitutionality
an arrest.
tion; and
searches incident to lawful arrests is well
(3)
promote, manage,
Otherwise
estab-
California,
established. Chimel v.
395 U.S.
lish,
on,
carry
promo-
facilitate
(1969).
89 S.Ct.
and did of the that a proceeds proof unlawful variance between the and the to distribute particulars grounds commit crimes of bill of is not prostitution, for rever- activity of activity appellant prejudiced by the unlawful sal unless the to further violence Glaze, promote, otherwise variance.” United States 313 F.2d prostitution, establish, on, (2d carry and facilitate We believe was manage, management, proof establish- aware of the to be promotion, against adduced the unlawful and was carrying prejudiced by any on of him not ment and variance particulars in violation of 18 between the bill of activity prostitution, and the proof. Proof of actual travel 1952 and U.S.C. in interstate U.S.C. commerce him was not necessary to his ordered the United States The trial court conviction under Count IV. whether Attorney to inform Street III, IV and VI would proof for Counts The judgment of conviction as to each of principal mere- acted as or indicate Street the defendants-appellants aside, is set counseled, commanded, aided, induced or ly are cases remanded for a new trial and the commission of offenses. procured proceedings such further may appro- be responded that as to The United States priate. jury III the could determine Street Count an aider and abettor. The OPINION ON
acted more as REHEARING response of this was that apparent effect PER CURIAM. considered to have acted as a Following issuance of the prior Court’s IV and VI. principal in Counts cases, opinion Stephen Lester, in these K. argues: Appellant Street an Assistant United Attorney, con- Having charge prin- elected to as a [him] agent tacted the F.B.I. charge of this obliged cipal, the Government case; Lester agent informed the that he had traveled in interstate prove basis of our decision. In an affidavit sub- specified commerce on the date in the Court, mitted to this Lester stated on De- being Indictment. There no evidence 10, 1975, cember he received 146 black and in interstate commerce that he traveled *6 F.B.I.; photographs white from the Lester Indictment, alleged as in the is Street recognized photographs these copies as of entitled to have the Count dismissed. the color photographs which were in the appellee any does not contend evidence The missing Exhibit 71. Nine of the exhibit’s produced Street did travel in in- photos 155 had not copied; writing been on Appellee terstate commerce on that date. copies the back of the 146 appear did not on argues was well aware of the evi- originals. the Lester concluded his affida- confronting dence him and a determination by stating, vit “Other than the fact that the principal and abettor or of aider is an aca- photographs color, attached 146 are not in exercise. demic they accurately reflect the contents of Government’s Exhibit 71.” alleged The overt acts in the con of the indictment indicated spiracy count 22, 1975, Court, On December this general party the role of each in the trans order, permitted supplementation of the alleged in IV. subsequently action Count appeal by record on the government. The alleged overt act was that or One photographs “[o]n 146 and the Lester affidavit 21, 1972, Baltimore, May Mary at Court, motion, were The filed. on its own STREET, land, REED ALEXANDER rehearing; ordered a limited the rehearing gave a/k/a REED ALEXANDER LARUE was to concern the issues relating to admis- AL ERNEST TIMOTHY HARRIS and sibility of Exhibit 71 and whether the money.” Appellant record, NEPHEW PHONSO supplemented by government, as the prejudice simply urges claims no but an permit is sufficient this Court to deter- government election relevancy irrevocable mine the and materiality of the required proof prin- prejudicial which acted as a exhibit its vis-a-vis effect.
213 vancy rehearing has been held and it is our of the exhibit showing The the rela- supplemented tionship parties is (especially conclusion record as these issues involuntary to determine related permit sufficient to this Court servitude count) countering and in alleged unacceptable preju certain testimony the issue of of Thus, appellants Harris new and Street as to their effect of Exhibit 71.1 dicial general unfamiliarity with activities at missing no trial because of the exhibit Mitchell’s Farm must, however, outweigh any would pas- longer required. We deter prejudice sion and engendered by pic- original mine the issues raised in the briefs tures. The trial court did not err in admit- filed in this case and not addressed in our ting Exhibit 71. previous opinion. Appellants raise numerous conten raise numerous con tions concerning sufficiency of the evi concerning admissibility tentions of Ex dence. In determining challenges, we present ques 71. These contentions
hibit
must view the
light
evidence in the
most
founda
sufficiency
tions
of
favorable to the government
to decide if
evidence,
relevancy, and
tion
the exhibit’s
there is sufficient
proof,
substantial
direct
weighing
relevancy,
any,
of that
if
circumstantial,
together with reasona
appellants
against possible prejudice to
ble
therefrom,
inferences to be drawn
from
All three
from the exhibit’s admission.
jury might
which a
appellants
find these
within the sound discretion of
matters are
guilty beyond a reasonable doubt. United
court,
only
reverse
trial
and we can
Downen,
v.
496
(10th
F.2d 314
Cir.
Young v. An
an abuse of that discretion.
1974),
den’d,
897,
cert.
419
177,
U.S.
95 S.Ct.
derson,
1975) (deter
(10th
F.2d 969
Cir.
513
142;
42 L.Ed.2d
Yates,
United States v.
470
relevancy);
of
United States
mination
(10th
F.2d
968
Cir.
Willis,
(8th
1973), cert.
841,
den’d,
94 S.Ct.
U.S.
Appellants argue the evidence was
(weighing
prejudice against
L.Ed.2d 738
of
insufficient as to the conspiracy count be
Gard,
17.-
relevancy);
Jones on Evidence §
cause there was no proof of an agreement
1972) (sufficiency
foun
51 at 354
ed.
among the appellants to violate the laws of
evidence). Having
copies
viewed the
dation
the United
alleged
States. The
conspiracy
photographs and considered the
involved
violations of 18 U.S.C. §§
record,
1952, 2421,
say
(footnote
we cannot
the trial court abused
1 of
original
71. opinion
statutes).
its discretion in the admission of Exhibit
describes these
The overt
photo
alleged
the admission of the
acts
purpose
set forth the basic outline of
scheme,
graphs
in Exhibit 71 was not a
and we set out some of those
required stringent
give
standards of foun
overt acts to
which
the factual context of our
authenticity
Many
dation and
evidence.
decision.
In the spring of
appellant
complaints actually go to the
*7
appellants’
Harris asked one
prosti
Cookie Martinez to
weight
jury
give
photo
should
tute herself and turn over all monies she
graphs.
pictures containing
To the extent
May,
earned to him.
Martinez was
appellants
Kansas,
none of the
or witnesses are in
taken from
City,
Junction
to Kan
exhibit, any
admitting
City, Missouri,
Harris,
cluded in the
error in
sas
by
one James
be
necessarily
Logan,
Alphonso
those would
harmless. The
and one
Nephew; Harris,
jury
appellants
Nephew
had seen the
and the wit
and Martinez flew from Kansas
Missouri,
City,
Baltimore,
nesses and could have discerned in which
Maryland.
to
persons
present.
Appellant
were not
We
photos
Street met the trio at Baltimore
gave
photos
money
do not believe these
were of a nature
and
to
Nephew
Harris and
passions
prejudices
(allegedly
to inflame the
their shares of
earnings
from
jury against
appellants.
The rele-
the Mitchell’s
enterprise
Farm
accumulated
appellants’
arguments
Suppress”
raised in
1. We have considered the
“Motion to
and find
unconvincing.
them
absences).
was taken to
pellants
Martínez
in their
also is attacked because Cookie
by Harris.
Farm and was beaten
testimony
Mitchell’s
Martinez’s
regarding
torture,
herself
at
began prostituting
Martinez
confinement and
supported
threats is not
being
with all monies
col- by
Mitchell’s Farm
other evidence and is
contradicted
her
who divided them
by appellant
lected
Cline
own
appellate
acts. Our
function does not
Harris,
Harris
Nephew
with
Street.
permit the weighing
conflicting
evidence
subsequently traveled to
and Martinez
or consideration of
credibility.
witnesses’
Illinois,
Wichita, Kansas,
Chicago,
via
Buck,
United States v.
(10th
appellants’ attempts to limit the evidence jury
which the could use to determine a
conspiracy recognized have existed. We
that circumstantial evidence is almost al-
ways required prove agreement an Butler,
violate the law. United v. jury America, UNITED STATES of which, believed, evidence if had established Plaintiff-Appellee, set previously. the acts forth These acts reasonably
and the inferences drawn there- jury would have from allowed to deter- BISHOP, Bobbie L. Defendant-Appellant. beyond a appel- mine reasonable doubt that No. 75-1184. law. agreed lants had to violate the United Appeals, States Court of Appellants argue could not have Tenth Circuit. guilty been found of the Mann Act and Racketeering if Interstate Act violations April 13, 1976. conspiracy Having were not shown. determined there sufficient evidence co-conspirator, was a we need not this
consider contention.
Appellants attack Harris’ con II, III
victions on Counts and V because only
Cookie Martinez’s is the evi trips specified
dence those counts prostitution.
were for the
involuntary against ap- servitude count all