United States v. Beckley

• Decision Date: 29 September 1965
• Docket Number: Crim. No. 24167.
• Parties: UNITED STATES of America v. Gilbert L. BECKLEY et al.
• Court: U.S. District Court — Northern District of Georgia

259 F. Supp. 567

UNITED STATES of America v. Gilbert L. BECKLEY et al.

Crim. No. 24167.

United States District Court N. D. Georgia, Atlanta Division.

September 29, 1965.

Charles L. Goodson, U. S. Atty. for N. D. of Georgia, Atlanta, Ga., for the United States.

Edward Bennett Williams, Washington, D. C., James R. Venable, Joe Salem, Atlanta, Ga., for defendants.

SLOAN, District Judge.

Count One of the indictment in the above captioned criminal action, briefly stated, charges that defendants from on or about the 1st day of January, 1961, up to and including on or about the 27th day of June, 1961, did unlawfully, etc., combine, conspire, confederate and agree with each other and with others unknown, to commit offenses against the United States, to-wit, (a) to devise a scheme and artifice to defraud the American Telephone and Telegraph Company, its subsidiaries, etc., by depriving said company of monies due and payable for long distance telephone calls and by depriving the company of the honest services of its employees and by causing the facilities of the company to be used in a manner prohibited by its tariffs, it being alleged that all of the above was done by transmitting and causing to be transmitted by wire in interstate commerce, sounds, to-wit, telephone calls and conversations for the purpose of executing such scheme and artifice in violation of 18 U.S.C. § 1343, and (b) to knowingly cause the telephone company, a common carrier within the meaning of 47 U.S.C. § 153 to extend to persons facilities in interstate wire communication other than filed by the company with the Federal Communications Commission pursuant to 47 U.S.C. § 203(a), by willfully and knowingly causing the company to extend to defendants facilities which were used for unlawful purposes, to-wit, for the purpose of conducting gambling activities in violation of the laws of the United States and of the several states and that the extension of such facilities for other than the purposes specified in the schedules filed by the company with the said Commission, all in violation of 47 U.S.C. §§ 203(c) and 501.

It is alleged that it was a part of said conspiracy that defendants Beckley and Lowe would appropriate to their own use the services of the defendant, James C. Gunter, an employee of the Long Lines Department of the telephone company, to place long distance calls from points within the various states of the United States to points in other states and foreign countries for defendants Beckley and Lowe which calls would be placed without either the authorization of the telephone company or the payment of the toll charges due and owing for such calls.

It is alleged that it was also a part of such conspiracy that defendants would conceal from the telephone company the placing of such calls in connection with the gambling activities of defendants Beckley and Lowe by using the services of defendant Gunter to place such calls as a consequence of which no toll slips or other record would be made as to the existence, origin point, or terminal point of long distance calls made by said defendants. The indictment sets out 26 overt acts allegedly committed by defendants in furtherance of the alleged conspiracy, these overt acts consisting of the placing of long distance calls by defendants at alleged specific times and to alleged specific places, all charged to be in violation of 18 U.S.C. § 371.

Count Two of the indictment charges that defendant Gilbert L. Beckley, during the period alleged in Count One, devised a scheme and artifice to defraud the telephone company by depriving it of the money due it for long distance telephone calls, by depriving it of the honest services of its employees and by causing the facilities of the telephone company to be used in a manner prohibited by statute and that the said defendant did, on a specific date alleged, cause sounds to be transmitted by wire communication in interstate commerce, from and to specific places named, without the authorization of the telephone company, in a manner prohibited by its tariffs, that is to say, to conduct unlawful gambling activities, and without the payment of the charges therefor, in violation of 18 U.S.C. § 1343.

Count Three, briefly stated, charges that during the period alleged in Count One, defendant Gilbert L. Beckley devised a scheme and artifice to defraud the telephone company by depriving it of the honest services of its employees and by causing its facilities to be used in a manner prohibited by its tariffs and that for the purpose of executing said scheme that defendant Beckley caused sounds to be transmitted from Newport, Kentucky to Atlanta, Georgia and thence to Los Angeles, California, by wire communication in interstate commerce by utilizing the services in Atlanta, Georgia, of defendant James C. Gunter, an employee of the Long Lines Department of the telephone company, without the authorization of the telephone company and in a manner prohibited by its tariffs, "that is to say, to conduct unlawful gambling activities and which communication was transmitted without the payment of toll charges, all in violation of 18 U.S.C. § 1343".

The remaining counts of the indictment charge similar offenses to those charged in Counts Two and Three except as to the particular defendant named therein, the date of the calls made, etc.

The defendants have filed motions to dismiss the indictment on the following grounds:

1. The indictment should be dismissed because it fails in two respects to charge an offense under 18 U.S.C. § 1343, upon which the conspiracy and each of the substantive counts are based.

(a) Interstate wires were not used to execute any fraud alleged in this indictment as required by the terms of 18

U.S.C. § 1343 in order to give the federal government jurisdiction.

(b) The alleged scheme to cheat the telephone company was not a fraud under the terms of the statute because it involved no false pretenses, no representations and no promises.

2. The part of each count which charges a violation of 47 U.S.C. § 203(c) should be dismissed. Such violation is alleged fully in (b) of the conspiracy count, and as a part of the fraud in each of the substantive counts. The defendants are incapable of causing the telephone company to extend its facilities unlawfully in violation of 47 U.S.C. § 203(c). The statute is violated only when the telephone company itself acts.

3. The indictment should be dismissed because it is based upon evidence in violation of 47 U.S.C. § 605 and defendants' Fourth Amendment rights against unreasonable search.

The motions of the defendants to dismiss the indictment are now properly before the Court for determination under Local Rule 8.

SUFFICIENCY OF THE CHARGES IN THE INDICTMENT TO CONSTITUTE AN OFFENSE UNDER TITLE 18, U.S.CODE, § 1343. (SEE APPENDIX)

The defendants contend that the wires were not used for the purpose of executing the alleged fraudulent scheme. Defendants contend that the wires were not used to carry out the fraud because the use of the wires was the fraud.

The scheme charged in the indictment includes the use of the wires.

The statute proscribes transmission by telephone "for the purpose of executing" a scheme to defraud. The courts have found such purpose in wire and mail fraud cases where the use of the facility was "in furtherance of the scheme". Milam v. United States, 322 F.2d 104, 109 (5 Cir.); A step in execution of the scheme—Huff v. United States, 5 Cir., 301 F.2d 760, 765—"as the means of consummating frauds", Abbott v. United States, 239 F.2d 310, 314, (5 Cir.). The defendants contend that their use of the wires was too closely connected with the execution of the scheme for the statute to apply; that the scheme was executed for the purpose of using the wires. That the wires were not used to carry out the fraud because the use of the wires was the fraud.

The government contends that long distance calls made in pursuance of a scheme to defraud the telephone company of its long distance tolls have as one of their purposes the execution of that scheme. The fact that there were also other purposes in making the calls would not effect this. Linden v. United States, 254 F.2d 560, 568 (4 Cir.).

Where the use of the wires is an essential part of the scheme to defraud such use is "for the purpose of executing" the scheme. Gregory v. United States, 253 F.2d 104, 109, 110 (5 Cir.).

DOES THE ALLEGED SCHEME TO CHEAT THE TELEPHONE COMPANY CONSTITUTE A FRAUD WITHIN THE TERMS OF TITLE 18, U.S.CODE, § 1343? (SEE APPENDIX)

The defendants contend that the offense charged is just a simple scheme to cheat the telephone company. The defendants scheme as alleged in the indictment was to deprive the telephone company of its profits by dishonest and fraudulent means. Abbott v. United States, supra.

Defendants contend that the indictment fails to allege a scheme to defraud within the meaning of Title 18, U.S. Code, § 1343 because there were no false pretenses, representations or promises to the telephone company.

It is not necessary that there be false representations or promises. All that is necessary is that it be a scheme calculated to deceive. Silverman v. United States, 213 F.2d 405 (5 Cir.).

There may be a scheme to defraud by means...