505 F2d 102 United States v. Scaramuzzo

505 F.2d 102

UNITED STATES of America, Plaintiff-Appellee,
v.
Frank Victor SCARAMUZZO, aka Frank Moore, Defendant-Appellant.

No. 74-2164.

United States Court of Appeals, Ninth Circuit.

Oct. 18, 1974.

Stephen Stein (argued), Goodman, Snyder & Gang, Las Vegas, Nev., for defendant appellant.

Stuart W. Rudnick, Special Atty. (appeared), Organized Crime and Racketeering Section, U.S. Dept. of Justice, Los Angeles, Cal., for plaintiff-appellee.

OPINION

Before BROWNING, DUNIWAY, and INGRAHAM,1 Circuit Judges.

PER CURIAM:

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1

Appellant was convicted of devising a scheme to defraud the Central Telephone Company in Las Vegas, Nevada, in violation of 18 U.S.C. 1343. The evidence established that appellant avoided toll charges for at least one long distance call from Las Vegas to Los Angeles by first placing a toll-free call to an area code 800 number subscribed to by the American Express Company in Phoenix, Arizona, and then diverting that call to the Los Angeles number by use of an electronic device called a 'blue box.'

2

There is no merit in appellant's contention that 18 U.S.C. 1343 does not apply to frauds involving telephone communications. This court has twice affirmed convictions under 18 U.S.C. 1343 in which interstate telephone calls played an integral role in the scheme to defraud, Battaglia v. United States, 349 F.2d 556 (9th Cir. 1965); Spindler v. United States,336 F.2d 678 (9th Cir. 1964), and the legislative history of the 1956 amendment to the statute demonstrates that Congress intended to reach frauds perpetrated by telephone. H.R. No. 2385, 84th Cong., 2d Sess. (1956), 1956 U.S.Code Cong. & Admin. News, p. 3091.

3

Alternatively, appellant argues that the statute must be read to apply only to frauds committed on the recipient of the message, not the transmitter. We agree with the conclusion of the Courts of Appeals for the Fifth and Tenth Circuits that this contention is without merit. See Scott v. United States, 448 F.2d 581, 583 n.5 (5th Cir. 1971); Brandon v. United States, 382 F.2d 607, 611 (10th Cir. 1967).

4

We are not impressed with appellant's suggestion at oral argument that the scheme to defraud may have been completed before any interstate transmission of sounds or signals occurred, but, in any event, this contention was not properly raised in the district court.

5

Affirmed.

1

Honorable Joe McDonald Ingraham, Senior Judge, United States Court of Appeals for the Fifth Circuit, sitting by designation