United States v. Faser

• Decision Date: 21 August 1969
• Docket Number: Crim. No. 1826.
• Citation: 303 F. Supp. 380
• Parties: UNITED STATES of America v. Christian FASER, Jr.
• Court: U.S. District Court — Eastern District of Louisiana

303 F. Supp. 380

UNITED STATES of America v. Christian FASER, Jr.

Crim. No. 1826.

United States District Court E. D. Louisiana, Baton Rouge Division.

August 21, 1969.

Louis C. LaCour, U. S. Atty., Eastern District of Louisiana, Owen A. Neff, Sp. Asst. U. S. Atty., New Orleans, La., for United States of America.

Rolfe H. McCollister, McCollister, Belcher, McCleary & Fazio, Baton Rouge, La., Sam J. D'Amico, D'Amico, Curet & Bush, Baton Rouge, La., John L. Avant, Dodd, Hirsch, Barker, Avant & Wall, Baton Rouge, La., for defendant.

WEST, Chief Judge:

Defendant, Christian Faser, Jr., was charged by a Federal Grand Jury on March 28, 1969, in a five count indictment with violating the Mail Fraud Statute, Title 18, United States Code, Section 1341. He now moves this Court to dismiss the indictment on the ground that it fails to state an offense for which he can be held to answer under the provisions of that statute. After hearing arguments of counsel, and after studying the exhaustive briefs filed and after reviewing the law applicable hereto, this Court concludes that there is no merit to defendant's motion to dismiss, and concludes that the indictment returned against the defendant on March 28, 1969, should not be dismissed.

Title 18, United States Code, Section 1341 provides, in pertinent part, as follows:

"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, * * * for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Post Office Department, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined * * *."

The alleged violation of this statute by the defendant is predicated on the following assertions contained in the indictment. Count One purports to charge a conspiracy within the meaning of Title 18, United States Code, Section 371, to commit a violation of the above quoted statute. In support of that charge, the indictment says:

"5. It was a part of said conspiracy that the defendant and the named co-conspirators would devise and intend to devise a scheme and artifice to defraud the State of Louisiana, that is to say, the said defendant, CHRISTIAN FASER, JR., and co-conspirators Ezekial W. Gravolet, Jr. and Numa P. Himbert would, while acting in their official capacities with the State of Louisiana, accept monies and bribes in return for causing public funds of the State of Louisiana to be deposited in the First National Bank of Jefferson Parish, Gretna, Louisiana, and would use their positions of public trust for the purpose of realizing private financial gain from the deposit of said public funds of the State of Louisiana, thus depriving the State of Louisiana of the honest and faithful performance of their duties as public officials, and would, for the purpose of executing such scheme and artifice and for the purpose of attempting to execute such scheme and artifice knowingly place and cause to be placed in authorized depositories for mail matter of the United States Post Office Department, checks, bank statements, and other matters and things to be sent and delivered by the Post Office Department between Baton Rouge, Louisiana, and Gretna, Louisiana; between Gretna, Louisiana, and New Orleans, Louisiana; between Gretna, Louisiana, and Baton Rouge, Louisiana; and between New Orleans, Louisiana, and Pointe-a-la-Hache, Louisiana, and would knowingly take and cause to be taken and received from the United States mails, checks, bank statements, and other matters and things, at Baton Rouge, Louisiana, at Gretna, Louisiana, at New Orleans, Louisiana, and at Pointe-a-la-Hache, Louisiana."

The remaining allegations of Count One charged that a co-conspirator, one Ezekiel W. Gravolet, Jr., who was at the time a member of the Louisiana Legislature, was to enter into a contractual arrangement with the First National Bank of Jefferson Parish, Gretna, Louisiana, whereby he would be employed to solicit deposits for the bank. The said Gravolet was to receive payment from the First National Bank of Jefferson Parish for securing deposits for the bank. Defendant, Christian Faser, Jr., who was employed at the time as Executive Secretary to the Governor of the State of Louisiana, and his two alleged co-conspirators, Gravolet and one Numa P. Himbert, who was employed by the Department of Highways for the State of Louisiana, were to cause public funds of the State of Louisiana to be deposited by mail in the First National Bank of Jefferson Parish. Gravolet was then to form or cause to be formed three Louisiana corporations ostensibly for the purpose of engaging in public relations business, the stock of which three corporations was to be owned by the wives of the defendant, Gravolet, and Himbert. It is then charged that Gravolet was to cause the First National Bank of Jefferson Parish to deposit a portion of the funds payable to him under his contract to obtain deposits to the accounts of each of the three corporations, thus utilizing the three corporations to "disguise bribe payments" to defendant and Himbert in return for the bank receiving the deposits of State highway funds. As overt acts under Count One it is charged that on or about May 31, 1960, Himbert, acting under instructions from the defendant Faser, caused a deposit of Highway Department funds in the amount of $3,000,000 to be mailed from Baton Rouge, Louisiana, to the First National Bank of Jefferson Parish; that on or about June 1, 1960, Gravolet entered into a contract of employment with the First National Bank of Jefferson Parish; that between January 2, 1961 and July 16, 1962, Gravolet formed the three corporations hereinabove referred to; that between June 1, 1960 and July 31, 1964, the First National Bank of Jefferson Parish paid commissions to Gravolet in the amount of approximately $491,033.38, and that between December, 1961 and July, 1964, Himbert received payments from the "public relations" corporations totaling approximately $55,790, while the defendant Faser, between September, 1960 and July, 1964, received payments from one of those corporations totaling approximately $64,903.34. The remaining overt acts alleged pertain to specific instances where the defendant allegedly caused the Baker Bank and Trust Company of Baker, Louisiana to place in the mails for collection certain specific checks drawn to the order of his wife on the account of one of the corporations hereinabove referred to.

Counts Two through Five of the indictment allege essentially the same facts as alleged in Count One and charge the defendant with actual violation of Title 18, United States Code, Section 1341, as distinguished from the conspiracy charged in Count One.

The Government contends that the facts alleged are sufficient to sustain a charge of conspiracy to use the mails to defraud as contained in Count One, and a charge of actually using the mails to defraud as charged in Counts Two through Five. The Government bases its case on the allegation in the indictment that the actions of the defendant Faser and his alleged co-conspirators "deprive the State of Louisiana of the honest and faithful performance of their duties as public officials" and that the allegations that the United States mails were used in furtherance thereof, are sufficient, if proved, to constitute the crime of using the mails to defraud under Title 18, United States Code, Section 1341. The defendant, on the other hand, contends, inter alia, that the facts as alleged, even if proved, do not constitute fraud and that therefore no Federal crime has been charged. It is the position of the defendant that the indictment fails to allege...