## Facts

- Federal prosecutors charged Jacqueline “Pat” Rich, Lloyd Pelton, and Ann Frazier in an eight-count indictment arising from an interstate prostitution operation based in St. Louis, Missouri.
- Counts I–IV concerned travel connected to a Chicago, Illinois boat show: Rich allegedly arranged for three women who worked as prostitutes to travel from St. Louis to Chicago to “work” the show; Count I alleged conspiracy (Rich and Frazier) to violate 18 U.S.C. § 2421, and Counts II–IV alleged substantive § 2421 violations against Rich tied to three different women.
- Counts V–VIII concerned travel to Winnemucca, Nevada: Count V alleged conspiracy (Rich and Pelton) to violate § 2421 by sending three women to Winnemucca for prostitution; Counts VI–VIII alleged violations of 18 U.S.C. § 2422 (Rich and Pelton) for persuading, inducing, and enticing those women to go and causing their transportation as passengers on a common carrier.
- At trial, Rich sought to introduce a grand jury transcript from one woman, Kathleen Waggoner, who had testified earlier in a manner Rich claimed was favorable to the defense.
- Rich did not call Waggoner to testify live, asserting that Waggoner’s attorney would advise her to invoke the Fifth Amendment if called.
- The district court excluded the grand jury transcript over Rich’s objection.
- Rich and Pelton were convicted in the U.S. District Court for the Eastern District of Missouri on Mann Act counts and appealed, challenging (among other things) the exclusion of Waggoner’s transcript and the sufficiency of the evidence.

## Issues

1. Whether the district court erred in excluding Waggoner’s grand jury testimony under Federal Rule of Evidence 804 based on a claim that she was “unavailable” due to a predicted Fifth Amendment invocation.
2. Whether grand jury testimony qualifies as “former testimony” admissible under Rule 804(b)(1) when the opposing party lacked a similar motive and opportunity to examine the witness.
3. Whether the evidence was sufficient to support the convictions under 18 U.S.C. §§ 2421 and 2422, including proof of intent and interstate nexus.

## Decision

- The Eighth Circuit affirmed the convictions.
- The court held the grand jury transcript was properly excluded under Rule 804 because Rich did not make an adequate showing that Waggoner was actually unavailable due to privilege.
- The court further held that, in any event, grand jury testimony did not satisfy Rule 804(b)(1)’s “similar motive and opportunity” requirement for examination by the party against whom it was offered.
- Applying the standard that evidence is viewed in the light most favorable to the government, the court found the evidence sufficient to permit a rational jury to find the required elements under §§ 2421 and 2422.
- The court rejected remaining evidentiary and procedural challenges, finding no prejudicial error warranting reversal.

## Legal Principles

- A witness is not “unavailable” under Rule 804 based solely on counsel’s representation that the witness would invoke the Fifth Amendment; the proponent must provide a concrete basis showing the privilege will be asserted and testimony cannot be obtained.
- Rule 804(b)(1) requires that the party against whom former testimony is offered had a similar motive and opportunity to develop the testimony through examination; grand jury proceedings generally do not satisfy this requirement because adversarial examination is absent.
- For Mann Act offenses under 18 U.S.C. §§ 2421 and 2422, intent and purpose may be established through circumstantial evidence, including arrangements for interstate travel and the context indicating travel to engage in prostitution.
- Appellate sufficiency review defers to the jury’s verdict when, viewing the record most favorably to the prosecution, a rational jury could find the elements proved beyond a reasonable doubt.

## Conclusion

The Eighth Circuit affirmed Rich’s and Pelton’s Mann Act convictions, holding that the defense could not admit exculpatory grand jury testimony under Rule 804 without a concrete showing of witness unavailability and because the grand jury setting lacked the government’s similar motive and opportunity to examine required for “former testimony,” while the trial evidence otherwise supported the interstate prostitution counts.


United States v. Pelton, 578 F.2d 701 (8th Cir. 1978)