The opinion of the court was delivered by: THOMAS I. VANASKIE
On May 25, 1995, a telephone conference was conducted with counsel in the above-captioned matter. During the course of the telephone conference, counsel for the Government clarified the Government's position with respect to its prosecution of the Defendant for mail fraud. Specifically, counsel for the Government indicated that the Government did not intend to present evidence that Defendant played some role in causing Business Telecommunication Systems, Inc. of New York ("BTSI") to mail commission payments in envelopes addressed to Defendant's attention.
The Government had clarified its position in response to my ruling in denying Defendant's Motion to Dismiss the Indictment. During the course of my ruling, I indicated that "if the Indictment in this case merely alleged that Fauver took checks that had been delivered through the mails to the Bradford County Prison," the Indictment would be dismissed under the rationale of United States v. Tarnopol, 561 F.2d 466 (3rd Cir. 1977) , and United States v. Beall, 126 F. Supp. 363 (N.D. Cal. 1954). See also Parr v. United States, 363 U.S. 370, 4 L. Ed. 2d 1277, 80 S. Ct. 1171 (1960) (School Board members' conversion of tax payments sent through the United States mails did not constitute mail fraud).
The Government's position, as clarified during our telephone conference, is that a mail fraud prosecution may be maintained because the checks that Fauver allegedly converted were delivered by the Postal Service. In light of the Government's clarification of its position with respect to this matter, the rationale of the May 9, 1995 Memorandum compels dismissal of the Indictment. As explained in Beall, 126 F. Supp. at 366:
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1. The Order of May 9, 1995 denying Defendant's Motion to Dismiss the Indictment is VACATED.
2. For the reasons set forth in the Memorandum accompanying the May 9, 1995 Order, and in light of the clarification of the Government's position in this matter, the Motion to Dismiss the Indictment (Docket Entry 8) is GRANTED.
United States District ...