United States v. Frances Pecora and Nofio Pecoraro, A/K/A Norfio Pecora, Jr.

693 F.2d 421, 1982 U.S. App. LEXIS 23664
CourtCourt of Appeals for the Fifth Circuit
DecidedDecember 1, 1982
Docket81-3312
StatusPublished
Cited by26 cases

This text of 693 F.2d 421 (United States v. Frances Pecora and Nofio Pecoraro, A/K/A Norfio Pecora, Jr.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Frances Pecora and Nofio Pecoraro, A/K/A Norfio Pecora, Jr., 693 F.2d 421, 1982 U.S. App. LEXIS 23664 (5th Cir. 1982).

Opinions

GEE, Circuit Judge:

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 1952.1 After pleas of not guilty were entered, both defendants moved to dismiss the indictment for lack of jurisdiction.2 The district court deferred ruling on [423]*423this motion pending presentation of evidence at trial. Following a jury trial, each defendant was found guilty. The defendants again asserted their jurisdictional argument in a motion for judgment of acquittal, which the district court denied. Sentences were assessed, and this appeal followed.

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 Burrescia3 met with Layris-son and discussed campaign contributions (regarding a millage campaign) as well as the individuals arrested in the drug “bust,” including Pecoraro. On October 29, Burres-cia returned to the sheriff’s office and gave $9,000 in cash to Layrisson and the District Attorney of Tangipahoa Parish. Prior to the conversation, a Special Agent of the Federal Bureau of Investigation had been contacted, and the affair was recorded. The money was given to Burrescia by Frances Pécora for the purpose of insuring that her son would not be convicted. On November 5, 1980, the sheriff, District Attorney, and Burrescia met again to discuss the bribe, and this conversation was likewise recorded. A meeting in which Frances Pé-cora was included was set up for the next day at Burrescia’s home. This meeting, likewise recorded, revealed that Pécora wanted the help of the sheriff and the District Attorney in protecting her son. Several more meetings, all recorded, between Layrisson and Burrescia took place in the following weeks, and the sheriff indicated that he wanted to talk to Pécora. Thus Burrescia attempted to call Frances Pécora from the sheriff’s office, and learned that she was in Georgia. He then told the sheriff that he would have Pécora call the sheriff from Georgia.

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 [424]*424argued “that the interstate nexus supplied by their use of interstate facilities was isolated, minimal, inconsequential, and nonessential to the ... scheme and insufficient to establish jurisdiction under the Travel Act.” Id. at 735. The court responded by holding that one telephone call sufficed.

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,

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Bluebook (online)
693 F.2d 421, 1982 U.S. App. LEXIS 23664, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-frances-pecora-and-nofio-pecoraro-aka-norfio-pecora-ca5-1982.