693 F.2d 421 | 5th Cir. | 1982
Lead Opinion
Defendants Frances Pécora and her son, Nofio Pecoraro, were charged by indictment with conspiracy, wire fraud, and use of an interstate facility to carry out a bribery scheme in violation of 18 U.S.C. §§ 2, 371, 1343, and 1952.
Background
Nofio Pecoraro was arrested on October 13,1980, on state charges of possession with intent to distribute marihuana. The next day, Frances Pécora met Sheriff Layrisson, who held her son in custody. Two weeks later, Jimmie Burrescia
Later that day, Burrescia called Sheriff Layrisson and then handed the telephone to Nofio Pecoraro to talk to the sheriff. Lay-risson asked Pecoraro to have his mother call him. The following morning, Frances Pécora returned the sheriff’s call and explained that she was in Georgia to visit a sick friend and that she had been told that he wanted to talk to her. In the conversation that ensued, many of the details and terms of the bribery scheme were discussed.
Threshold Issue: Jurisdiction under Sections 1952 and 1343
The initial issue raised by the defendants is whether the federal courts may assume jurisdiction over this local bribery ease, involving only Louisiana residents, under 18 U.S.C. §§ 1343 or 1952 on the basis of a single interstate telephone call made at the request of Sheriff Layrisson. The government argues that this call was sufficient to establish jurisdiction under the Travel Act (§ 1952) and also under the wire fraud statute (§ 1343) because the phone call facilitated the bribery and because the call was made for the purpose of executing the bribery scheme. Passing upon this slender jurisdictional basis requires us to examine closely the recent cases construing these federal laws.
In United States v. Perrin, 580 F.2d 730 (5th Cir.1978), aff’d, 444 U.S. 37, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979), this court, faced with a similar claim that interstate contacts were insufficient to found jurisdiction under the Travel Act, held that one interstate phone call by a defendant to obtain gravity maps necessary to exploit stolen seismic exploration charts was sufficient to invoke § 1952 jurisdiction. We found “no requirement that the use of interstate facilities be essential to the scheme: it is enough that the interstate travel or the use of interstate facilities makes easier or facilitates the unlawful activity.” 580 F.2d at 736, citing Rewis v. United States, 418 F.2d 1218, 1221 (5th Cir.1969), rev’d on other grounds, 401 U.S. 808, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971). We see no principled distinction between this case and the present one. There, as here, the defendant
And in United States v. Jones, 642 F.2d 909 (5th Cir.1981), we again held that “[a]s long as the interstate travel or use of the interstate facilities and the subsequent facilitating act make the unlawful activity easier, the jurisdictional requisites under § 1952 are complete.” 642 F.2d at 913, relying on Perrin, supra. The defendant in Jones made a trip from Oklahoma to Texas to cash wagering checks in “facilitation” of an ongoing gambling enterprise.
Under the facts before us, there can be no doubt that the phone call from Pécora in Georgia to the sheriff in Louisiana facilitated and made easier the bribery scheme. Indeed, the entire conversation consisted of details involving the attempted bribery, and the scheme was undoubtedly furthered by the lengthy discussion of these details. Nevertheless, the defendants argue that even if the bribery scheme was made easier due to the phone call, the call was so fortuitous and incidental that it does not invoke § 1952 jurisdiction.
In United States v. Archer, 486 F.2d 670 (2d Cir.1973), the court found that a phone call from Paris to New York, made by an undercover agent, “served no purpose that would not have been equally served by a call from New York,” and could thus be characterized as “a casual and incidental occurrence,” United States v. Corallo, 413 F.2d 1306, 1325 (2d Cir.), cert. denied, 396 U.S. 958, 90 S.Ct. 431, 24 L.Ed.2d 422 (1969), or “a matter of happenstance,” Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493, 496 (1971). 486 F.2d at 682-83.
The defendants make several arguments on the basis of the above cases. As we have already said, we reject any contention that the phone call from Georgia did not facilitate or benefit the bribery scheme. We likewise reject the defendants’ suggestion that the request by the sheriff for Frances Pécora to call him was an attempt artificially to create or manufacture federal jurisdiction under the Travel Act; the district court found as a fact and on ample evidence that the sheriff requested Burrescia to have Frances Pécora call him before the sheriff knew that she was in Georgia. Unlike Archer, the interstate element in this case was not furnished solely by undercover agents and there is no question of any attempt to contrive jurisdiction.
Finally, we discern in the Travel Act no exception for casual and incidental occurrences or for “happenstance” ones. Its language is straightforward and comprehensive. Therefore, even were we not constrained by our prior holdings in Perrin and Jones, we would conclude that jurisdiction existed here.
As to the convictions under the wire fraud statute, 18 U.S.C. § 1343, the defendants repeat their arguments challenging jurisdiction. Here as well, however, the use of interstate wires need not actually further the illegal scheme, but need only be intended to execute the scheme. United States v. Hammond, 598 F.2d 1008, 1010 (5th Cir.), remanded on rehearing, 605 F.2d 862 (5th Cir.1979). In United States v. Davila, 592 F.2d 1261 (5th Cir.), cert. denied, 444 U.S. 843, 100 S.Ct. 85, 62 L.Ed.2d 56 (1979), we held that an interstate transmission “at the heart” of a scheme cannot be too incidental to invoke § 1343 jurisdiction. And we have likewise held that one phone call is sufficient to constitute an offense, Huff v. United States, 301 F.2d 760, 765 (5th Cir.), cert. denied, 371 U.S. 922, 83 S.Ct. 289, 9 L.Ed.2d 230 (1962). As with the travel act, jurisdiction was present here on the plain language of the wire fraud act.
Refusal to Excuse Juror
During an evening recess, when a juror answered the telephone at about 11:00 p.m., a female voice inquired whether she was on the jury. Upon being told that she was, the caller asked in what case. At this
At the conclusion of the colloquy with the juror in question, the trial judge voiced his concern that to excuse her at such a time and on such a ground might encourage further attempts by the nighttime caller to disqualify jurors, so that “we may end up with no jury at all.” After further discussion between court and counsel, the court adopted — with the apparent acquiescence of all counsel — a compromise course: the juror would be retained on the panel, but counsel’s right to re-urge the motion to strike her or the entire panel at any later time was expressly reserved and maintained by the court. No effort to do so was ever made by any counsel thereafter.
This we cannot countenance; the point has been waived. Nor, assuming that considerations of plain error are appropriate to this situation of apparent deliberate waiver, are any of these apparent. The trial judge, impliedly at least, accepted the juror’s assertions that this simple inquiry as to her status as a juror would not affect her and that the other jurors regarded it as a prank or joke. In this, no such error appears as, by its obviousness or otherwise, was of such magnitude as to call in question the fairness, integrity or public reputation of the proceedings. United States v. Atkinson, 297 U.S. 157, 56 S.Ct. 891, 80 L.Ed. 555 (1936).
Other Claims for Reversal
Appellants advance several other points for reversal: that the wire fraud and travel act counts are multiplicitous, that the court erred in refusing to admit transcripts of certain taped conversations, that certain comments in argument by counsel for the United States were erroneous, and that certain instructions and refusals to instruct by the trial judge — as in declining to instruct on a duress defense — were reversible. We have considered all of these carefully, in the context of the trial, and conclude that none merits discussion.
Conclusion
For the above reasons, the judgments below are
AFFIRMED.
. 18 U.S.C. § 1343, the wire fraud statute, reads:
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined not more than $1,000 or imprisoned not more than five years, or both.
The Travel Act, 18 U.S.C. § 1952, reads, insofar as is pertinent here:
(a) Whoever travels in interstate or foreign commerce or uses any facility in interstate or foreign commerce, including the mail, with intent to—
(1) distribute the proceeds of any unlawful activity; or
(2) commit any crime of violence to further any unlawful activity; or
(3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on of any unlawful activity,
and thereafter performs or attempts to perform any of the acts specified in subpara-graphs (1), (2), and (3), shall be fined not more than $10,000 or imprisoned for not more than five years, or both.
(b) As used in this section “unlawful activity” means (1) any business enterprise involving gambling, liquor on which the Federal excise tax has not been paid, narcotics or controlled substances (as defined in section 102(6) of the Controlled Substances Act), or prostitution offenses in violation of the laws of the State in which they are committed or of the United States, or (2) extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States.
. Defendant Frances Pécora also separately filed a motion to dismiss on jurisdictional grounds and on the ground that the indictment was muitiplicious.
. A third defendant, who was convicted and did not appeal.
. That defense counsel retained the incident in mind is evidenced by the inquiry of one, near the close of the trial, whether any other juror had reported such an attempted contact, as the court had instructed all to do. None had.
Concurrence in Part
concurring in part and dissenting in part:
I concur fully in the Court’s opinion on “Refusal to Excuse Juror” and “Other Claims for Reversal”. This includes as well the Court’s determination as to both §§ 1343 and 1952 that the telephone call from Georgia was not contrived as an attempt artificially to create or manufacture federal jurisdiction. Furthermore and not without substantial misgivings, I concur in the affirmance of the conviction for violation of the Travel Act, 18 U.S.C. § 1952.
But as to the conviction for wire fraud violation, 18 U.S.C. § 1343, I must dissent.
To begin with, I agree with the Court that “the use of interstate wires need not actually further the illegal scheme, but need only be intended to execute the
I would therefore reverse with directions to dismiss the wire fraud count.