01-2839 U.S. v. Costello

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“The examples in the application notes to the guideline are limited to such cases, see U.S.S.G. § 2G1.1 Application Note 2, and the history and logic of prostitution offenses argue strongly for the limitation. Prostitution is a business, and when carried on as is common in conjunction with striptease dancing-the dancers providing a thin cover for the activity and also advertising their charms to the customers-involves an employment relation between the prostitutes and the managers of the business. But since it is an illegal business (section 1952 is confined to illegal prostitution, and so would not apply to prostitution in the handful of counties in Nevada in which brothels are legal), employers cannot use the law of contracts to control the behavior of their employees. The tendency is to substitute force, the hope being that the persons against whom the force is being used or threatened, namely the prostitutes, will be reluctant to complain to the police since they are themselves engaged in a criminal activity. The guideline in question defines in effect an aggravated form of the prostitution offense that occurs when the ringleaders resort to force to keep the prostitutes in line. Defined more broadly, for example to include roughing up unruly customers, the guideline would have the paradoxical effect of increasing the risks to prostitutes. After all, it is not only their employers, but also their customers, who, knowing that prostitutes, engaged as they are in an illegal activity, are unlikely to complain to the police, are more likely than is normal to use force against them. The ordinary law of property permits a property owner, including a business establishment, to use gentle force (‘molliter manus imposuit’-literally, he placed his hands gently) to expel a person who refuses without right to leave the premises when told to do so. See, e.g., Billingsley v. Stockmen’s Hotel, Inc., 901 P.2d 141, 145 (Nev. 1995). The use of such force would come within the literal terms of the guideline if the government’s position were correct. That makes very little sense that we can see. But even if the government limited its position (as surely it should) to a degree of force or method of coercion that an ordinary businessman would be forbidden to employ in defense of his property, the mere fact that the bouncer who goes too far works for a bar that is also a brothel does not make the prostitution offenses committed there aggravated offenses, for encountering an ungentle bouncer is an ordinary risk of patronizing a bar, rather than anything special to prostitution.

“So the sentence must be vacated and the case remanded for reconsideration of the four-level increase.”

Affirmed in part, Vacated and Remanded in part.

Appeal from the United States District Court for the Northern District of Indiana, Moody, J., Posner, J.