11th Circuit to Drunken, Randy Player-Types: Caveat Emptor

By Jonathan R. Tung, Esq. on August 12, 2016 | Last updated on March 21, 2019

This next question is going to smack some readers as being highly chauvinistic, but what does a rich man in a bar expect when beautiful young girl asks him to buy her a drink? This question, believe it or not, is at the heart of a recent Eleventh Circuit case that reversed several criminal convictions against some enterprising businesses in Miami.

The opinion is colorful, offering a dose of booze, Star Trek, film-noir, and theology in such an efficient bundle -- all of which help lead the court to answer the "what are you expecting" question with "not much."

Mixing Alcohol With Hormones -- Uh Oh...

The case came before the Eleventh Circuit after several Miami businesses men were accused of wire fraud in connection to a scheme to lure tourists to their bars and nightclubs, and to entice them into racking up huge tabs. The men had hired young and exotic looking Eastern European girls as their bait, tasking them with going out and hunting for unwitting male customers. As the old saying goes, "Sex sells."

These girls were apparently very good at enticing male customers. John Bolaris, a Philadelphia weatherman decided that he'd beat the blues by going south for some sun. He was approached by the defendant's "B-girls," as the "bar girls" were known.

A quick peck on the cheek later and his fate was sealed. The B-girls brought him to their bar, the alcohol flowed and Bolaris got drunker and looser with his money. About $43,000 in booze and who-knows-what was billed on his Amex card. Of course, in the midst of all this merry-making, it was never disclosed that the girls were on the defendants' payroll.

Wire Fraud Claims and Pop Culture

Once they'd sobered up, Bolaris and other duped men sued, claiming that the defendants employed fraud under the federal Wire Fraud Statute. Judge Amar Tharpar authored the circuit's opinion. Tharpar, apparently a Trekkie and pop culture fan, decided to spread his wings by writing an opinion pregnant with references including Vulcans, Casablanca, alcohol and Moses.

He described the defendants' defense as the Casablanca defense: they were shocked... shocked! to learn that fraud was allegedly taking place at their establishments. Human juries were not as logical as Vulcans, needing "a bit more guidance as to exactly what the court's instructions logically entail." And the wire-fraud statute, "does not enact as federal law the Ninth Commandment given to Moses on Sinai." (That's "thou shalt not bear false witness against thy neighbor.")

They Got What They Paid For

The government had proffered the theory that the girls' non-disclosure of their relationship with the defense was alone enough to trigger the fraud finding. The defense demurred and argued that the men who stumbled into their establishments on the arms of beautiful (hired) women weren't victims at all. They got what they paid for "no more, no less."

This is exactly what Tharpar had to say about the government's theory:

Now imagine another, more common scenario: a young woman asks a rich businessman to buy her a drink at Bob's Bar. The businessman buys the drink, and afterwards the young woman decides to leave. Did the man get what he bargained for? Yes. He received his drink, and he had the opportunity to buy a young woman a drink. Does it change things if the woman is Bob's sister and he paid her to recruit customers? No; regardless of Bob's relationship with the woman, the businessman got exactly what he bargained for. If, on the other hand, Bob promised to pour the man a glass of Pappy Van Winkle but gave him a slug of Old Crow instead, well, that would be fraud. Why? Because the misrepresentation goes to the value of the bargain.

Judge Tharpar must be the consummate gentleman, because we are certain that some men tacitly bargain for the opportunity to get something more from the women for whom they buy drinks...if you get our drift. As ribald and crass it sounds, does not Judge Tharpar's conclusion preclude the existence of such predatory (perhaps unilateral) bargaining?

Just a thought.

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