ORDER
This matter is before the court on defendant’s motion for judgment of acquittal made at the close of all the evidence, on which the court reserved its ruling, and renewed on January 31, 1972, after a jury verdict of guilty on January 25, 1972. Resistance was filed February 11, 1972.
Defendant was charged in a one count indictment with wiretapping in violation of 18 U.S.C. § 2511(1) (a) which states:
. . . any person who . . . willfully intercepts [or] endeavors to intercept . . . any wire . . . communication . . .
shall be guilty of an offense against the United States. The term “wire communication” is defined in 18 U.S.C. § 2510(1) as:
any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of interstate or foreign communications, [emphasis added].
The basis for defendant’s motion is that plaintiff failed to prove two essential elements of the crime: (1) that Northwestern Bell Telephone Company is a “common carrier,” and (2) that it is engaged in “providing or operating . . . facilities for the transmission of interstate or foreign communications.”
The record is devoid of testimony that Northwestern Bell is either a common carrier or engaged in interstate or foreign communications. In its resistance plaintiff contends, however, that these are not essential elements and, in the alternative, (for the first time) requests the court to take judicial notice of these facts, if they are elements of the crime. Plaintiff’s request for judicial notice *1142 comes 17 days after the verdict. The court did not take notice sua sponte during the trial.
Research has failed to disclose - any case law on whether the component parts of the definition of “wire communication” are elements of the crime. Therefore, the statute must be construed by the court. 1 The legislative history of the statute discloses that its major purpose was to combat organized crime. 2 Section 2511(1) (a) and its history' in-, dicate that Congress intended a “blanket prohibition against the interception of any wire communication.” 3 However, Congress seemed to limit “wire communication” to include only communications carried by a common carrier through our Nation’s communications network. Congressional and Administrative News, supra, p. 2178. The coverage was intended to be comprehensive, but it clearly refers only to communications sent through the facilities of a communication common carrier. The statute does not extend to any person not
engaged as a common carrier in providing or operating . . . facilities for the transmission of interstate or foreign communications. Section 2510(1).
Therefore, the court is of the view that “wire communication” as defined in the statute must be proved in order to sustain a conviction. In effect, (1) common carrier and (2) providing or operating facilities for the transmission of interstate or foreign communications are essential elements of the crime.
In its resistance requesting the court to now take judicial notice of these facts concerning Northwestern Bell,
the
government relies heavily on Gold v. United States,
Whether on its own motion or otherwise, where judicial notice is taken, the jury must be instructed that they are to accept the faet noticed as true. McCormick,
supra;
Rule 201, Proposed Rules of Evidence,
Rule 29(a), FRCrP, in providing for motions for judgment of aquittal states that such a motion should be granted after the evidence on either side is closed if the evidence is insufficient to sustain a conviction for the offense charged. Cartwright v. United States,
It is therefore ordered.
Defendant is acquitted.