Metropolitan News-Enterprise


Monday, September 8, 2008


Page 1


Court Upholds Prostitution Convictions, Based on Preposition


By STEVEN M. ELLIS, Staff Writer


The Ninth U.S. District Court of Appeals on Friday upheld the convictions of two women under federal law for using a telephone to operate a prostitution business at a pair of Montana massage studios, based on Congress’ preposition placement, rejecting a defense that no calls crossed state lines.

Looking to The Elements of Style and The Chicago Manual of Style, Judge Richard R. Clifton wrote that the Travel Act’s prohibition on the use of “any facility in interstate or foreign commerce” with the intent to further certain unlawful activity did not require the government to show use crossing state lines because Congress intended the preposition “in” to modify “facility.”

Clifton also rejected the women’s argument that Congress should instead have prohibited use of any facility “of” interstate commerce, concluding that there was no “special significance” to the use of one preposition over the other in the act.

Tina Nader owned and operated two massage studios in Great Falls and Billings from the mid-1990’s until the middle of this decade, with the latter managed by her employee Marilyn Lake. The pair did not dispute that the business involved prostitution, and business records indicated approximately 5,000 customers from Montana and at least five other states.

Many of the prostitution transactions were initiated by a telephone call from the customer, so the federal government indicted Nader and Lake under the Travel Act for using the telephone to carry on a business enterprise involving prostitution in violation of Montana law. Congress enacted the Travel Act in 1961 to bar interstate travel or use of an interstate facility in aid of racketeering or an unlawful business enterprise.

When the government notified Nader and Lake that it intended to prove they used a “facility in interstate or foreign commerce,” even though none of the calls on record came from outside the state, the pair jointly moved to dismiss the indictment, arguing that their solely intrastate use of the telephone was not the “use” contemplated by the act.

However, after U.S. District Judge Richard F. Cebull of the District of Montana denied their motion, both pled guilty pursuant to agreements reserving their right to appeal.

Nader and Lake renewed on appeal their argument that the facility at issue must actually be used in interstate commerce in order to violate the Travel Act, but Clifton—noting that case questioned only congressional intent, not congressional power—agreed with the government’s response that the defendants’ interpretation was at odds with the act’s plain meaning.

“The government’s interpretation of the Travel Act is the more sensible…,” he wrote. “Congress placed the phrase next to the word ‘facility,’ which strongly supports the conclusion that the phrase modifies that word….

“The facility itself, not its use, must be in interstate commerce.”

Clifton similarly rejected the defendants’ contention that Congress showed its intent to require actual interstate activity by drafting the act to prohibit the use of “any facility in interstate or foreign commerce” rather than the use of “any facility of interstate or foreign commerce.”

Looking to parallel language in the federal murder-for-hire statute enacted at the same time, he agreed with other circuit courts that Congress “intended to the two phrases to be interchangeable.”

He also swept aside the defendants’ argument that the act was intended to target the “top men” of organized crime who oversaw illegal activities in one state while residing in another based on the statute’s broad wording, and denied Nader and Lake’s request to apply the rule of lenity—mandating that no individual be forced to speculate whether conduct is prohibited—because the pair “knew that their conduct was illegal.”

Clifton further rejected the defendants’ argument that such a broad interpretation of the Travel Act offended principles of federalism, noting that the act establishes only concurrent federal jurisdiction over what are already state or local crimes.

“While there may be valid questions as to the wisdom of drafting such a broad statute or applying it in the context of local prostitution businesses like the ones in this case, these are policy issues within the discretion of the other branches,” he said.

Judges Kim McLane Wardlaw and N. Randy Smith joined Clifton in his opinion.

The cases are United States v. Nader, No. 07-30311, and United States v. Lake, No. 07-30316.


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