The opinion of the court was delivered by: THOMAS I. VANASKIE
Defendant Robert Fauver, the former Warden of the Bradford County Prison, Bradford County, Pennsylvania, has been charged with mail fraud and money laundering arising out of his alleged misappropriation of funds that were intended to benefit the Bradford County Prison and its inmates. Specifically, the Grand Jury Indictment, returned on November 22, 1994, accuses Fauver of cashing five checks mailed to the Bradford County Prison by Business Telecommunication Systems, Inc. of New York ("BTSI"), and applying the proceeds for his personal use instead of depositing those checks in the Prison Inmates' Commissary Fund. The specific uses of the mail charged in the Indictment occurred on November 12, 1990, September 27 and November 26, 1991, and February 26, 1992. The amount involved in those mailings is less than $ 5,000.
Contending that the mailing of the checks by BTSI pursuant to a valid contractual obligation between Bradford County and BTSI cannot be regarded as having been made in furtherance of the alleged fraudulent scheme, Fauver has moved to dismiss the Indictment.
If the mailings in question had been addressed to either Bradford County or the Bradford County Prison, there would be substantial merit to Fauver's argument. However, the Indictment charges that the mailings were addressed to Fauver himself. The Government argues that the checks were addressed to Fauver to enable Fauver to misappropriate the checks without receipt of the checks being recorded on Bradford County's books. It is this contention, suggesting a proximate connection between the use of the mails and Fauver's diversion of prison funds, which makes dismissal of the Indictment at this stage inappropriate.
Fauver served as the Warden of the Bradford County Prison from October of 1986 until January 29, 1993. He was appointed to this position by the Bradford County Commissioners.
Pursuant to a contract dated May 9, 1988, BTSI agreed to supply telephone services to the Bradford County Prison for an inmate "call-home" program. Under the agreement, BTSI was granted a license to install phones at the Bradford County Prison, and the Prison, as licensor, was to receive a license fee payable on a monthly basis. The amount of the fee was dependent upon phone usage. Fauver signed the agreement on behalf of the Bradford County Prison.
Checks issued by BTSI in payment of its contractual obligations were made payable to the Bradford County Jail and were delivered via the United States mail addressed to Fauver, Warden, Bradford County Jail, Troy, PA. The checks were to be deposited into the Inmates' Commissary Fund account at the National Bank of Bradford County.
The Indictment charges that from November, 1990 until January, 1993, Fauver engaged in a scheme to misappropriate payments made by BTSI and thereby deprive the citizens of Bradford County and the Bradford County Commissioners "of their right to his honest and faithful services. . . ." The Indictment further charges that, as part of the scheme to defraud, Fauver took checks "which had been mailed to the Bradford County Prison by [BTSI] and, instead of depositing those checks in the Inmates' Commissary Fund, would cash the checks and apply the proceeds for his personal use."
Four specific instances of mail fraud are charged. In each instance, the use of the mails upon which the Indictment is premised consisted of the sending of a check or checks from BTSI to the following addressee:
On December 28, 1994, Fauver moved to dismiss the Indictment. A supporting brief was filed on January 10, 1995.
The Government's opposing brief was filed on January 9, 1995. A reply brief was timely submitted on January 18, 1995. Oral ...