concurring in part and dissenting in part:
I concur fully in the Court’s opinion on “Refusal to Excuse Juror” and “Other Claims for Reversal”. This includes as well the Court’s determination as to both §§ 1343 and 1952 that the telephone call from Georgia was not contrived as an attempt artificially to create or manufacture federal jurisdiction. Furthermore and not without substantial misgivings, I concur in the affirmance of the conviction for violation of the Travel Act, 18 U.S.C. § 1952.
But as to the conviction for wire fraud violation, 18 U.S.C. § 1343, I must dissent.
To begin with, I agree with the Court that “the use of interstate wires need not actually further the illegal scheme, but need only be intended to execute the *426scheme”. At p. 424, and the Court’s citation and quotation from United States v. Davila, that the interstate transmission “at the heart of the scheme” must be more than just incidental. But the phone call from Pécora in Georgia was clearly not at the “heart” of this bribery scheme. Even though the details of the phone conversation clearly furthered the bribery scheme, the use of interstate facilities was incidental. The wire fraud statute is analogous to the mail fraud statute, 18 U.S.C. § 1341, Napper v. Anderson, Henley, Shields, Bradford & Pritchard, 500 F.2d 634, 636 (5th Cir.1974), cert. denied, 423 U.S. 837, 96 S.Ct. 65, 46 L.Ed.2d 56 (1975), and there is no § 1341 violation if the use of mails is incidental and unpremeditated, Glenn v. U.S., 303 F.2d 536 (5th Cir.1962). Because federal jurisdiction should not be based on fortuity, such as the incidental phone call made by Pécora when she heard that the sheriff wanted to talk to her, I cannot find jurisdiction proper under § 1343.
I would therefore reverse with directions to dismiss the wire fraud count.