Petition — Cornfeld v. United States

| +) Cour, US

| ILED |

77-780 NOV 80 \977

IN THE MICHAEL RODAK, JR., CLERK

SUPREME COURT OF THE

October Term

UNITED §S

, 1977 *

No. 76-3391

BERNARD CORNFELD, d/b/a GRAYHALL, INC.,

Vv.

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH

CIRCUIT

Of Counsel:

Donald E. Grossfield

140 Westminster Road

kochester, New York 14607

Telephone: (716) 473-0943

Richard I. Wideman

RUDICH & WIDEMAN

9255 Sunset Boulevard

Suite 414

Los Angeles, Cali ornia

90069

Telephone: (213) 272-8252

Attorney for Petitioner

TABLE OF CONTENTS

Opinion Below

Jurisdiction

Question Presented

Statutory Provisions Involved

Statement of the Case

Reasons for Granting the Writ

This Court Should Resolve

Conflicting Rules Regarding

Wiretapping Permissible

Under 18 U.S.C. §2511(2)

The Court of Appeals Erred

in Holding That Evidence

Otherwise Barred by 47 U.S.C.

§605 Was Admissible Under 18

U.S.C. §2511

Conclusion

Appendix A

Appendix B

Page

LO

14

la

lb

TABLE OF AUTHORITIES

Cases:

Benati v. United States, 355 U.S

96 (1957)

Bubis v. United States, 384 F.2d

643 (9th Cir. 1967)

Hanna v. United States, 394 U.S.

1015 (1969)

Katz v. United States, 389 U.S.

347 (1967)

Page

10,13

Nadrone v. United States, 302 U.S.

379 (1937)

United States v. Goldstein, 535

F.2d 1305 (9th Cir. 1976)

United States v. Keen, 508 F.2d

986 (9th Cir. 1974), cert. denied,

421 U.S. 929 (1975)

Federal Statutes:

Wire Frauds Statute, 18 U.S.C.

§1343

Interception and Disclosure

Statute, 18 U.S.C. §2511 4,

Unauthorized Publication

Statute, 47 U.S.C. §605

» #4 «

12

a oe

7,10,12,13

3,10,11,13

=— 2

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1977

OPINION BELOW

The opinion of the Court of Appeais

for the Ninth Circuit, ~ot yet reported,

appears in the Appendix hereto. The opin-

ion sustained the conviction of petitioner

in the District Court where after a jury

trial he was found guilty on each of three

No. 76-3391

BERNARD CORNFELD, d/b/a GRAYHALL, INC.,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The petitioner, Bernard Cornfeld,

respectfully prays that a writ of certiora-

ri issue to review the judgment and opinion

of the United States Court of Appeals for

the Ninth Circuit entered in this proceed-

ing on October 31, 1977.

counts of wire fraud in violation of 18

U.S.C. §1343.

JURISDICTION

The judgment of the Court of Appeals

for the Ninth Circuit was entered on

October 31, 1977, and this petition was

filed within thirty (30) days of that

date.* This Court's jurisdiction is in-

voked under 28 U.S.C. §1254(1).

QUESTION PRESENTED

Whether information obtained through

a telephone wiretap undertaken without a

Warrant by a private vire carrier may be

introduced by the government as evidence

in the prosecution of petitioner for vio-

2-*4on of 18 U.S.C. §1343.

STATUTORY PROVISIONS INVOLVED

United States Code, Title 18:

§1343.

"Whoever, having devised or in-

tending to devise any scheme or

* See Appendix B.

—

artifice to Jefraud, or for

obtaining money or property by

means of false or fraudulent

pretenses, representations, or

promises, transmits or causes

to be transmitted by means of

wire, radio, or television

communication in interstate or

foreign commerce, any writings,

signs, signals, pictures, or

sounds for the purpose of exe-

cuting such scheme or artifice,

shall be fined not more than

$1,000 or imprisoned not more

than five years, or both. Ad-

ded July 16, 1952, c. 879,

§ 18(a), 66 Stat. 722, and

amended July 11, 1956, c. 56l,

70 Stat. 523."

United States Code, Title 47:

§605.

"Except as authorized by chap-

ter 119, Title 18, no person

receiving, assisting in receiv-

ing, transmitting, or assisting

in transmitting, any interstate

or foreign communicaticn by

wire or radio shall divulge or

publish the existence, contents,

substance, purport, effect, or

meaning thereof, except through

authorized channels of transmis-

sion or reception, (1) to any

person other than the addressee,

BEST COPY AVAILABLE

= oe

his agent, or attorney, (2) to

a person employed or authorized

to forward such communication

to its destination, (3) to prop-

er accounting or distributing

officers of the various commu-

nicating centers over which the

communication may be passed,

(4) to the master of a ship un-

der whom he is serving, (5) in

response to a subpena issued by

a court of competent jurisdic-

tion, or (6) on demand of other

lawful authority."

United States Code, Title 18:

§2511(2) (a).

"It shall not be unlawful under

this chapter for an operator of

a switchboard, or an officer,

employee, or agent of any commu-

nication common carrier, whose

facilities are used in the trans-

mission of a wire communication,

to intercept, disclose, or use

that communication in the normal

course of his employment while

engaged in any activity which is

a necessary incident to the ren-

dition of his service or for the

protection of the rights or prop-

erty of the carrier of such com-

munication: Provided, That said

communication common carrier

shall not utilize service observ-

ing or random monitoring except

» @

for mechanical or service

quality control checks."

STATEMENT OF THE CASE

On August 10, 1976, following a jury

trial, petitioner was found guilty of each

of three counts of wire fraud and on

September 30, 1976, was sentenCed to serve

concurrent sentences of ninety (90) days

on each of the counts, to pay restitution

to the telephone company, and to pay a to-

tal fine of $3,000.0f. The indictment al-

leged that Cornfeld caused his employees

to place overseas calls via "blue boxes",

thereby bypassing Pacific's billing appara-

tus, in violation of 18 U.S.C. §1343.

The evidence against Cornfeld consist-

ed primarily of the testimony of former

secretaries and evidence obtained by the

telephone company's warrantless wiretap.

The Pacific Telephone Company first became

suspicious of blue box activity at Grayhall

(petitioner's corporation) when an 800

INWATS printout revealed that phone calls

from Grayhall to 800 numbers (toll free)

significantly exceeded the average talking

times to toll free numbers. Thereafter a

company agent attached a CMC 2600 to

Grayhall's lines; this device detected the

presence of a 2600 cycle tone, which tone

is utilized by the phone company in open-

ing up long distance circuits. Moreover,

the 2600 cycle tone does not ordinarily

originate at the subscribers location, and

» @«

therefore its detection at the subscriber's

location is indicative of blue box use.

The agent concluded, after obtaining the

foregoing information, that blue box acti-

vity was in fact occurring at Grayiall.

Nonetheless, the agent attached an

Hekemian 51A, a sophisticated pen register,

to Grayhall's telephone lines. This device

printed on a paper tape in black the tele-

phone numbers dialed without the aid of a

blue box and printed in red all calls pre-

ceded by a 2600 cycle tone, i.e., blue box

calls. In addition to this apparatus, the

agent ultimately attached a tape recorder

activated by the 2600 cycle tone, which

operated for approximately 2 minutes and

revealed the telephone numbers dialed and

the beginning of the communication. The

telephone company contended it only record-

ed three calls in a 12 day period. It is

noteworthy that the telephone company had

concluded blue box activity was taking

taking place at Grayhall prior to the at-

tachment of either the Hekemian 514A or the

tape recorder.

On January 22, 1975, Pacific informed

the F.B.I. of the investigation. On

January 28, F.B.I. Special Agent Willie

White participated in the execution of a

search warrant at Grayhall. The agents re-

covered two blue boxes, a group of cards

containing numbers frequently called via

the blue box, and directions for using a

blue box, all in a third floor, locked bed-

room.

— 2 - 8 -

On the basis of the material produced

Grayhall, Inc., prior to Pacific Telephone's

by Pacific and the evidence obtained in

tapping of petitioner's phone. The question

the search of Grayhall, petitioner was

charged with three counts of fraud by wire

and causing an offense, under 18 U.S.C.

§§1343 and 2. Petitioner moved under Rule

41(f), Fed.R.Crim.Proc., to suppress all

of the evidence resulting from the tele-

phone company.'s investigation and from the

F.B.I. search. Following a hearing, the

motion to suppress was denied. The matter

was tried to a jury on August 3, 1976, re-

sulting in findings of guilty on all counts

on August 10, 1976.

REASONS FOR GRANTING THE WRIT

Because 18 U.S.C. §2511 permits

conduct - wiretapping - that is particular-

ly repugnant to estabiished traditions of

liberty and privacy, it is especially im-

portant that this Court clarify and stan-

dardize the rules under which such activity

may take place, as well as the use to which

such wiretaps may be >ut by government

prosecutors.

This Court Should Reconcile

Conflicting Rules Regarding

Permissible Wiretapping

Under 18 U.S.C. §2511(2)

The testimony of prosecution witnesses

in the case at bar demonstrates that there

was evidence of "blue box" activity at

then arises, in light of other checking de-

vices employed by Pacific, whether the wire-

Lap was a "necessary incident to the rendi-

tion of his service or to the protection of

the rights or property of the carrier." It

is respectfully submitted that under present

circumstances it is the phone companies and

not the federal courts that are making fun-

damental decisions as to what constitutes a

"necessary'' wiretap - and that is because

there is no uniformity among or within the

Circuits on this question.

The Ninth Circuit itself has ruled in-

sonsistently on this matter. In Bubis v.

United States, 384 F.2d 643 (9th Cir. 1967),

it was held that:

- the monitoring and tape re-

cording ... after ampie evidence

has been secured of the illegal

use by appellant of the company's

facilities, was ‘inreasonable and

unnecessary. To sanction such

practices on the part of the tele-

phone company would tend to emas-

culate the protection of privacy

§605 was intended to protect. In

these circumstances the District

Court erred in admitting into evi-

dence the tape recordings...."

(Emphasis added.)

But in United States v. Goldstein, 535

F.2d 1305 (9th Cir. 1976), the Court allowed

Wiretapping and said:

"This case does not involve unrea-

sonable monitoring, as found in

Bubis v. United States, supra,

where the phone company recorded

every phone call made or received

by the suspect for three months.

Rather, only fraudutent-caits

were recorded, the recordings were

limited to the initial portion of

the calls, and the device was in-

stalled only long enough to allow

the company to insure that it could

sustain a successful prosecution.

The investigation was reasonably

justified and ‘to an extent reason-

ably necessary for the company's

investigation’ and was, therefore,

permissible. United States v.

Bubis, 384 F.2d at 648."

It must be noted that in Bubis, the

Ninth Circuit used as a standard the con-

duct of the phone company before the tap

was placed. In Goldstein, the emphasis was

placed on conduct during the wiretap. In

the case at bar, petitioner argued before

the Ninth Circuit that the wiretap was not

"necessary" under the Bubis doctrine. But

the Court dismissed his contention with an

abrupt reference to the Goldstein decision

- which was inapposite. This confusion is

» 48 «

typical of the many cas. s brought under

these statutes, and the confusion will con-

tinue and intensify unless this Court acts

to enc it.

The Court of Appeals Erred

in Holding That Evidence

Otherwise Barred by 47 U.S.C.

§695 Was Admissible Under

18 U.S.C. §2511

It is absolutely clear that had the

tap been placed on petitioner's phone by law

enforcement officials, a violation of peti-

tioner's rights under the Fourth Amendment

would have occurred. Katz v. United States,

389 U.S. 347. This Cecurt has never ruled

directly on the issue of use as evidence

by the government of wiretap information ob-

tained by a private wire carrier where such

information could not be obtained directly

by the government absent a warrant.

It is equally clear that prior to pas-

sage of the Omnibus Crime Control and Safe

Streets Act of 1968, specifically 18 U.S.C.

§2511(2), the conduct of Pacific Telephone

would have been absolutely barred, and the

wiretap on petitioner's phone could not have

been placed at all.

Even though 18 U.S.C. §2511 exempts

wire carriers from the proscriptions im-

posed by 47 U.S.C. §605, it by no means

follows necessarily that §2511 "authorizes"

o-Bt «

phone companies to wiretap. Nor does §2511

appear on its face to allow the companies

to disclose wiretap information to the gov-

ernment or allow the government to make use

of such information as evidence in a crim-

inal prosecution.

Section 605 is absolute in its lan-

guage and has been so interpreted by this

Court. Nadrone v. United States, 302 U.S.

379 (1937).

In Nadrone v. United States, 302 U.S.

379 (1937), the United States Supreme Court

interpreted the application of §605 thusly:

"Taken at face value the plirase

‘no person' comprehends federal

agents, and the ban on communica-

tion to ‘any person' bars testi-

mony to the content of an

intercepted message. Such an ap-

plication of the section is sup-

ported by comparison of the clause

concerning intercepted messages

with that relating to those known

to empoloyes [sic] of the carrier.

The former may not be divulged to

any person, the latter may be di-

vulged in answer to a Lawful sub-

poena."” 302 U.S. at p. 379.

* ve *

"We nevertheless face the fact that

the plain words of Section 605

- 12 -

forbid anyone, unless authorized

by the sender, to intercept a

telephone message, and direct in

equally clear language that 'no

person’ shall divulge or pubiish

the message or its substance to

‘any person.' To recite the con-

tents of the message in testimony

before a court is to divulge the

message. The conclusion that the

Act forbids such testimony seems

to us unshaken by the Government's

arguments." 302 U.S. at p. 382.

(Emphasis original. )

Accord: Benati v. United States, 355

U.S. 96 (1957).

Section 251l has been treated as either

an amendment or exception to §605. But to

so treat §2511, it is necessary to read that

section as an "authorizing" statute - and

there is no self-evident reason to do so.

Indeed, the Ninth Circuit has held that §2511

is " ... not ... a positive authorization of

such taps." United States v. Keen, 508 F.2d

986 (9th Cir. 1974), cert. denied, 421 U.S.

929 (1975).

This discrepency was recognized, as

was the advisability of Supreme Court re-

view in this field, by Mr. Justice Fortas,

in a dissenting opinion in Hanna v. United

States, 394 U.S. 1015. Joined by Mr. Justice

Douglas in his opinion that a writ of

» 43 «

certiorari st«:ild issue in order to define

the

relationships between §605, §2511,

the

Constitution, and the various Courts of

Appeals opinions. Justice Fortas wrote:

And,

"Tl would grant certiorari in

this case to resolve the area of

conflict between circuits and to

determine whether §605 permits

the telephone company to inter-

cept and divulge personal commu-

nications which are used in the

expectation of freedom from ‘the

uninvited ear.' Katz v. United

States, 389 U.S. 347, 352, 88

S.ct. 507, 19 L.Ed.2d 576 (1967).

he added, in a footnote:

"It is by no means clear that

the new statute would authorize

this kind of conduct if a simi-

lar case occurred today. Unless

it did, §605 would still apply

and the same prcolems that exist

in this case would arise again.’

« th<

CONCLUS LON

WHEREFORE, for the reasons herein shown,

this petition for writ of certiorari should

be granted,

oe submitted,

-

Keka SZan

Richard I. Wideman

RUDICH & WIDEMAN

9255 Sunset Boulevard

Suite 414

Los Angeles, California 90069

Telephone: 213-272-8252

Attorney for Petitioner

Of Counsel:

Donald E. Grossfield

140 Westminster Road

Rochester, New York 14607

Telephone: 716-472-0943

November 30, 1977

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERTCA, )

Plaintiff-Appellee, ‘

Vv. No. 76-3391

BERNARD CORNFELD, dba ‘ OPINION

Grayhall, Inc., )

Defendant-Appellant. ‘

Appeal from the

United States District Court

for the

Central District of California.

Before: wlY and HUFSTEDLER, Circuit Judes,

and LINDBERG ~ District Judge.

PER CURIAM:

Appellant Bernard Cornfeld was

*The Honorable William J. Lindberg, Senior

United States District Judge, Seattle,

Washington, sitting by designation.

la

convicted by jury trial on three counts of

fraud by wire, in violation of 18 U.S.C.

§ 1343, for the use of two multi-frequency

signal generators, called "blue boxes",

which enabled callers to re-route long

distance telephone calls and avoid being

billed for the services. We affirm.

I

The indictment chronologically broke

down the scheme to defraud into two separ-

ate time periods. Between July 20 and

October 18, 1974, Cornfeld utilized or

caused to be utilized the "415" area code

scheme, and between approximately October

29, 1974 and January 28, 1975, he utilized

or caused to be utilized the '800" area

code scheme. Count three pertained to a

single telephone call on or about January

17, 1975, with respect to a call to Geneva,

Switzerland. ;

In December, 1974, William Chaney, an

experienced Pacific Telephone Company

(Pacific) investigator, routinely reviewed

an 800 INWATS print-out for the period be-

tween October 29 and November 7, 1974, and

noted that twelve ''800"' number calls were

made from telephone tumber 274-8698, re-

gistered to Grayhall, Inc., 1100 Carolyn

Way, Beverly Hills, California (Grayhall).

Seven of these calls were made to the

Sheraton Hotel Reservation Service at 800-

325-3535 and lasted a total of eighty-nine

2a

minutes, an average of 12.7 minutes.

Chaney's suspicions became aroused because

the Sheraton reservation service number is

One commonly employed by blue box users

and the normal time period within which

reservation services are executed is less

than three minutes. A check of the appli-

cation for telephone service showed that

appellant Cornfeld was president of Gray-

hall.

Pursuant to Pacific's policy, Chaney

requested from the accounting department

of the company a "series 300"" study on 274-

8698. The series 300 study contained a

print-out of every number that was dialed

from 274-8698 to numbers outside the area

code 213. Chaney found that twenty-seven

calls were nlaced to various area code 800

numbers during the period between November

25 and December 21, 1974, with an average

calling time of 12.7 minutes per call.

At the same time Chaney learned that

the telephone number 274-8698 was one of

three telephone numbers assigned in ro-

tary to Grayhall; the other numbers were

274-8696 and 274-8697. Chaney addition-

ally discovered that 274-4688 was assigned

to Grayhall as a separate number. Follow-

ing Pacific's standard procedure for docu-

mentation in potential "blue box" cases,

Chaney attached a CMC 2600 device to 274-

8698 on January 8, 1975. The CMC 2600 is

a device which registers on a counter the

3a

number of times a 2600 cycle tone, a tone

emitted by blue boxes, is sent across the

line. On the same day, Chaney connected

a tape recorder to the CMC 2600. The tape

recorder was activated automatically when

the CMC 2600 registered a burst of 2600

cycle activity and would automatically ter-

minate the recording after two minutes.

Deciding to use a more sophisticated de-

vice, he replaced the CMC 2600 with a

Hekemian 51A. This device not only per-

formed the same functions as the former,

but also produced a tape print-out in

black lettering of all outgoing calls from

the telephone, and shifted to an upper key

and printed in red ink the numbers called

via the blue box. The Hekemian 51A was

attached from January 8 until January 28,

1975, a period of twenty days; the tape

recorder was attached for only 13 days.

On January 17, 1975, the CMC 2600 was

attached to telephone number 274-4688; on

January 21, the two-minute tape recording

device was attached. While the CMC 2600

was removed on January 28, 1975, eleven

days later, the tape recorder was removed

after only one day.

In the opinion of Chaney, the total

number of area code 415 calls listed that

were completed via the blue box was 319;

the total number of area code 8&9 calls

was 55. On January 22, 1975, Chaney in-

formed the F.B8.1. of his investigation.

4a

On January 28, F.8.1. Special Agent Willie

White participated in the execution of a

search warrant at Grayhall. The agents

recovered two blue boxes, a group of cards

containing numbers frequently called via

the blue box, and directions for using a

blue box, all in a third floor, locked

bedroom.

On the basis of the material produced

by Pacific and the evidence obtained in

the search of Grayhall, Cornfeid was

charged with three counts of fraud by wire

and causing an offense, under 18 U.S.C.

§§ 1343 and 2. Cornfeld moved under Rule

41(f), Fed.R.Crim.Proc., to suppress all

of the evidence resulting from the tele-

phone company's investigation and from

the F.B.1. search. Following a hearing,

the motion to suppress was denied. The

matter was tried to a jury on August 3,

1976, resulting in findings of guilty on

all counts on August 10, 1976.

Il

The numerous issues raised on appeal

may be summarized as tollows:

(1) whether Pacific Telephone Com-

pany conducted its investigation in a con-

stitutionally and statutorily proper man-

ner under federal law;

(2) whether the Communications Act

of 1934 and Title III of the Omnibus Crime

5a

Control Act authorized the monitoring of

telephone calls in the manner done by

Pacific Telephone in this case;

(3) whether the evidence should have

been excluded because it was obtained in

violation of state law;

(4) whether the prosecution's con-

duct during trial was improper and resul-

ted in substantial prejudice;

(5) whether the prosecution's sum-

mation impermissibly commented on Corn-

feld's failure to testify;

(6) whether the questioning of pro-

secution and defense witnesses by the

trial judge was improper; and

(7) whether the evidence adduced at

trial was sufficient <o prove guilt beyond

a reasonable doubt.

III

The appellant's primary argument,

raised by the first three issues, asks

this court to address again the propriety

of the investigative conduct of a private

telephone company, in light of the Com-

munications Act of 1934, 47 U.S.C. §605,

and Title III of the Omnibus C e Control

Act, 18 U.S.C. §2511(2)(a)(i).— Cornfeld

alleges that the attachment of the CMC

6a

2600 device, the monitoring of the

telephone lines by the tape recorder, and

the subsequent disclosure to the F.B.I1.

of the information secured through these

devices were made in violation of federal

and state law.

The same issues were presented in

United States v. Goldstein, 532 F.2d 1305

(9th Cir. 1976), cert. denied, U.S.

(1977); see also United States v.

Auler, 539 F.2d 642 (7th Cir. 1976), cert.

denied, U.S. (1977). Appellant

argues that Pacific's monitoring violated

the exceptions previously carved out of

§ 605, in that it was not reasonable or

necessary to tape record or attach addi-

tional monitoring devices to the telephones

after Chaney first determined in his mind

that a blue box was in fact being used.

According to Chaney's testimony, this oc-

curred after he had reviewed the 800

INWATS print-out and the series 300 study,

and before any devices were actually at-

tached to the telephones. In Goldstein,

supra, we re-affirmed our earlier decision

in Bubis v. United States, 384 F.2d 643

(9th Cir. 1967), that in the enactment of

§ 605, Congress did not intend to deprive

communications systems of their fundamental

right to take reasonable measures to pro-

tect themselves and their properties

against the illegal acts of a trespasser.

Under § 605, it became well established

that a telephone company could monitor

Ja

and disclose telecommunications on its

line to the extent "reasonably necessary"

to protect its property from fraud.

United States v. Goldstein, supra at 1309

and n. 2. But the authority to intercept

and disclose wire communications is not

unlimited, we noted. The telephone com-

pany may only intercept a communication

which is a "necessary incident to the ren-

dition of . .. service or... [for]

the protection of the [company's] rights

or property .. .", 18 U.S.C. § 2511(2)

(a)(i). While in Bubis, supra at 648, the

court reversed a conviction where it was

shown that the telephone company had re-

sorted to "unreasonabie practices", this

court did note that "reasonable methods"

included the use of a frequency recording

device and limited use of a tape recorder

to identify the offending parties. Subse-

quently, in United States v. Goldstein,

supra, we extended this authority to in-

clude the authorized release to federal

authorities such as the F.B.I., the infor-

mation gathered.

The appellant has failed to demon-

strate how the factual situation present

in this case is distinguishable from that

found in Goldstein, such that a different

result is required. The question of the

violation of state law was decided ad-

versely to appellant in Goldstein, and

requires no further elaboration.

8a

IV

Appellant next alleges that improper

prosecutorial conduct was intended to mis-

lead the jury and resulted in substantial

injustice. In this regard, appellant cites

various statements made by the prosecutor

during his opening argument regarding the

forthcoming testimony of several witnesses,

various alleged admonitions by the court

to the prosecutor concerning the type of

questions he was asking, and an alleged

innuendo that Cornfeld and a witness were

"sleeping together'’. A review of the

transcript fails to indicate that the pro-

secutor strayed beyond the permissible

bounds, either in the opening or closing

arguments. Furthermore, the appellant's

failure to object at trial requires that

he demonstrate plain error in order to

win reversal of the conviction on appeal,

United States v. Memoli, 449 F.2d 160 (9th

Cir. 1971), cert. denied, 405 U.S. 928

(1972); Rule 52(b), Fed.R.Crim.Proc., and

no such error has been shown. As to the

"sleeping together'’ remark, when read in

its full context, it is clear that the re-

mark dealt only with the inquiry as to

whether or not the witness and Cornfeld

were together at all times and addressed

the question of the credibility of the

witness in testifying that Cornfeld had

no opportunity to use a blue box. The

question was an appropriate area of in-

quiry and only in the most convoluted of

9a

of readings could it be construed to imply

what appellant would have us believe it

implied.

V

The appellant next argues that the

prosecutor commented on Cornfeld's failure

to testify. During his closing argument,

the prosecutor stated that "in a fraud-

type case such as this, the individual,

the defendant, who has perpetrated the

fraud is the one who wants to keep it a

secret. . . . In this particular case you

have a clever individual who used people

to insulate himself from criminal respon-

sibility . .. ina very clever way, by

keeping quiet about the blue boxes."

Later he stated to the jury that "it is

totally illogical, that the defendant

could present this story ... ."" Read in

their full context, the remarks do not in-

dicate a reference to Cornfeld's failure

to testify, but rather refer to the asser-

tion that one who engages in criminal ac-

tivity is not going t» make it public

knowledge. It is ‘entirely appropriate for

the prosecutor to argue to the jury and at-

tempt to explain away the reason for Corn-

feld's secrecy in the operation of the blue

boxes. The comments were not of such a

character that the jury would naturally

and necessarily take them to be comments

on the failure of the accused to testify,

Griffin v. California, 380 U.S. 609 (1965).

10a

Furthermore, no objection was made at the

time of the comments and they cannot be

construed as plain error, United States v.

Parker, 549 F.2d 1217 (9th Cir. 1977),

cert. denied, 97 S.Ct. 1659 (1977); Rule

52(b), Fed.R.Crim.Proc,

VI

Appellant next argues that the trial

judge improperly questioned prosecution

and defense witnesses to the extent that

actual prejudice inhered to Cornfeld. The

allegation is without merit. The trial

judge may question witnesses to clear up

ambiguities and clarify the issues for the

jury, so long as he maintains an appearance

of impartiality, Rule 614, Fed.R.Civ.Proc.

Vil

Finally, the appellant argues that

the evidence adduced at trial was insuffi-

cient to prove guilt beyond a reasonable

doubt. The proper standard for determining

the sufficiency of the evidence on appeal

is 'whether the trier of fact could reason-

ably arrive at its conclusion,"' Glasser v.

United States, 315 U.S. 60, 80 (1942);

United States v. Rojas, 458 F.2d 1355,

1356 (9th Cir. 1972). The record indi-

cates that Cornfeld was an incorporator

of Grayhall; was listed as president on

all telephone bills; used the residence

as his principal residence from May, 1974

lla

through January, 1975; was in control of

the secretaries; and instructed his secre-

taries to place overseas calls for himself

and his guests. Borland's testimony about

her conversation with Cornfeld in mid-

October, 1974 indicated that she discussed

blue boxes with him and was told to pre-

pare an "800" number list; Cornfeld kept

after her to prepare the list. Carsen's

testimony indicated that there was a blue

box at the residence at least as early as

late 1971 and that she gave Cornfeld a

clear warning about the danger of using

the devices.

Read as a whole, there is more than

ample evidence from which the trier of

fact could determine that Cornfeld used or

caused to be used blue boxes in the placing

of long distance telephone calls.

Affirmed.

12a

Footnote 1/

47 U.S.C. § 605 prohibits unauthorized

publication or use of wire or radio com-

munication:

that:

Except as authorized by chapter

119, Title 18, no person receiv-

ing, assisting in receiving,

transmitting, any interstate or

foreign communication by wire or

radio shall divulge or publish

the existence, contents, sub-

stance, purport, effect, or

meaning thereof, except through

authorized channels of trans-

mission or reception, (1) to

any person other than the addres-

see, his agent, or attorney, (2)

to a person employed or author-

ized to forward such communica-

tion to its destination, (3) to

proper accounting or distributing

officers of the various communi-

cating centers over which the

communication may be passed, (4)

to the master of a ship under

whom he is serving, (5) in re-

sponse to a subpoena issued by

a court of competent jurisdic-

tion, or (6) on demand of other

lawful authority.

18 U.S.C. § 2511(2)(a)(i) provides

13a

(Reference page 6a)

It shall not be unlawful under

this chapter for an operator of

a switchboard, or an officer,

employee, or agent of any com-

munication common carrier, whose

facilities are used in the trans-

mission of a wire communication,

to intercept, disclose or use

that communication in the normal

course of his employment while

engaged in any activity which is

a necessary incident to the ren-

dition of his service or to the

protection of the rights or pro-

perty of the carrier of such

communication; Provided, that

said communication common car-

riers shall not utilize service

observing or random monitoring

except for mechanical or ser-

vice quality control checks.

l4a

NOTE:

APPENDIX B

Although the "Filing Date"

which appears on Page One

of the Court of Appeals'

Opinion within the stamp

of the Clerk of the Court

is October 27, 1977, the

date on which the Judgment

was docketed was October

31, 1977. Under Rule 36

of the Federal Rules of

Appellate Procedure:

"The notation of Judgment

in the docket constitutes

entry of the Judgment."

See also Scofield v. Labor

Board, 394 U.S. 423, 427.

Lb