United States v. Truglio

731 F.2d 1123
CourtCourt of Appeals for the Fourth Circuit
DecidedApril 5, 1984
DocketNos. 83-5103, 83-5104, 83-5115 to 83-5117, 83-5119 and 83-5120
StatusPublished
Cited by62 cases

This text of 731 F.2d 1123 (United States v. Truglio) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Truglio, 731 F.2d 1123 (4th Cir. 1984).

Opinion

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. § 1962(c) and (d)),1 the Travel Act (18 U.S.C. § 1952(a)(3)),2 and the Mann Act (18 U.S.C. § 2422)).3 Truglio was also indicted for two alleged violations of 18 U.S.C. § 2511(l)(a).4 The indictments covered activities of the appellants from March 11, 1980 to November 19, 1982.

[1126]*1126Truglio 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 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 [1127]*1127based 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.

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731 F.2d 1123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-truglio-ca4-1984.