Brandon v. United States

• Decision Date: 29 August 1967
• Docket Number: 9396.,No. 9395,9395
• Parties: Herman D. BRANDON, Appellant, v. UNITED STATES of America, Appellee. Sylvester E. GAUTREAUX, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

382 F.2d 607 (1967)

Herman D. BRANDON, Appellant, v. UNITED STATES of America, Appellee.

Sylvester E. GAUTREAUX, Jr., Appellant, v. UNITED STATES of America, Appellee.

Nos. 9395, 9396.

United States Court of Appeals Tenth Circuit.

August 29, 1967.

John M. Amick, Oklahoma City, Okl., for appellants.

David A. Kline, First Asst. U. S. Atty., Oklahoma City, Okl. (B. Andrew Potter, U. S. Atty., Oklahoma City, Okl., on the brief), for appellee.

Before WILBUR K. MILLER, Senior Circuit Judge,^* and BREITENSTEIN and HILL, Circuit Judges.

WILBUR K. MILLER, Senior Circuit Judge:

On April 29, 1966, a grand jury in the District Court for the Western District of Oklahoma returned a multi-count indictment against Thomas E. McCay, Glenn S. Danford and the appellants, Herman D. Brandon and Sylvester E. Gautreaux, Jr. The first count accused them of conspiracy to commit offenses against the United States.¹ The count alleged that the specific crimes which the indictees were accused of conspiring to commit were the transmission, by wire and radio communication in interstate commerce, of certain sounds and signals in furtherance of a preconceived scheme to defraud Southwestern Bell Telephone Company of revenue for the use of long distance telephone service and facilities, in violation of 18 U.S.C. § 1343.²

It was part of the conspiracy, count one alleged, that the indictees would acoustically connect to various telephone lines an electronic device which would conceal the existence of long distance calls made by the conspirators, thereby preventing the telephone company from billing them for such calls. Twenty-two overt acts in furtherance of the conspiracy were charged. Each of the remaining 46 counts of the indictment accused one of the conspirators of a specifically described unlawful use of an electronic device for the purpose indicated, in violation of 18 U.S.C. § 1343. Nine of these counts were laid to the appellant Brandon and five to the appellant Gautreaux.

On August 8, 1966, when the cases were called, McCay and Danford pleaded nolo contendere, but Brandon and Gautreaux stood on their pleas of not guilty and went to trial. They did not take the stand and offered no evidence in defense of the charges against them. Both were found guilty on August 10, 1966, not only under the conspiracy count, but also under the various other counts which applied to them. On October 27, 1966, the trial judge reserved imposition of sentences and placed Brandon and Gautreaux on probation for three years; nevertheless, they appeal.

The Government's evidence showed that in February, 1965, one Lewis G. McKenzie demonstrated to Brandon and Gautreaux at his laboratory in California an electronic device referred to as a "black box," which McKenzie later admitted under cross-examination "could be used to circumvent the telephone company's billing equipment" and which was manufactured by him "under-cover." At the appellants' request, McCay and Danford joined them in California and the four purchased the "black box." It was taken to Oklahoma and used there by the conspirators until it was seized by agents of the Federal Bureau of Investigation in the execution of a search warrant covering the office of the appellants.

Early in 1965, officials of the telephone company became suspicious when its accounting department reported that a "computer print out" showed numerous calls of long duration placed to universal information numbers³ throughout the United States from a limited number of telephones. Because of this, the telephone company's Security Supervisor for Oklahoma, where the suspected telephones were located, proceeded to monitor the lines in question at intervals from April, 1965, to January, 1966.

It is unnecessary, we think, to undertake a technical description of the monitoring devices and the method of their operation. Suffice it to say the monitoring process revealed that long distance calls from the suspected numbers — which were those used by the appellants — were being placed in such a manner as to avoid the telephone company's billing equipment. Tape recordings of the monitored long distance conversations were made, and later were taken to the grand jury, pursuant to subpoena; they became the bases of the substantive counts of the indictment.

The appellants do not challenge or contradict the evidence introduced by the Government. Instead, they substantially admit its accuracy by making in their brief the following Statement of Facts:

"Lewis McKenzie, a witness for the government, manufactured a device which, by the emission of tones of various fixed frequencies, enabled a telephone user to dial a distant telephone without actuating the telephone company\'s automatic billing equipment. There was evidence that the defendants had acquired the device in California, and both defendants had used the device to make long distance calls.

"The telephone company eventually became aware that something irregular was occurring, and constructed a rather elaborate device which enabled their security agents to monitor four suspected lines. This device was placed in operation and calls made from the suspected lines were intercepted, broadcast over a loudspeaker and recorded on tape. (These included a number of calls made by each defendant.) Excerpts from these tapes were used in evidence against the defendants at the trial."

In attempted avoidance of the damaging facts thus admitted, appellants argue the convictions should be reversed because of two propositions thus stated: (1) "The indictment does not allege, nor did the evidence prove an offense against the United States;" and (2) "Evidence acquired by the Government in violation of 47 U.S.C.A. 605⁴ should have been excluded and the failure to do so was highly prejudicial to the defendants."

In support of the first of these propositions, the appellants make the following statements:

"* * * (1) no false representation was ever made by any of these defendants to the telephone company; (2) the telephone company was never deceived with regard to any of the calls alleged in the substantive counts; the company was aware of the time the calls began, from where the calls originated, to whom the calls were made, and the length of time the calls lasted; (3) the telephone company did not suffer any monetary loss nor did any of the defendants experience any financial gain as a result of the sending of the signals; (4) it was never shown

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