# Memorandum for the United States — Abbate v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386409_0139%3A6 ## Record - **Collection:** Supreme Court brief - **Document type:** Memorandum for the United States - **Published:** January 1, 1959 - **Citation:** 359 U.S. 187 ## Text Office - Pt Us. | FILED \ | NOV.6- 1957 {LIBRARY z ih _» JOHN T. FEY, Clerk ae SUPRE ME COURT. ua I | Sih Supreme Gout of he 7 z States OCTOBER Tai, 195 ° Louis JosEPH ABBATE AND Micuart Lovis FALconr, | PETITIONERS . Vv. . _Unrrep StaTes OF AMERICA‘. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATHS COURT OF APPEALS FOR THE. FIFTH OIRCUIT MEMORANDUM FOR THE UNITED STATES - 2 J. LEE RANKIN, . * | Solioitor ,General, \ - RUFUS D. McLEAN, .. “Acting Assistant Attorney General, _ SULIA Pp COOPER, . Attorneys, Department of Justice, ee 6,3 D. O. Cm Opinion below-------- Reinet User iacanentiwnastawk IS nt a ogc 8. C. 1254 (1). ea toa Cia aXe “ } . a QUESTIONS PRESENTED 1, Whether petitioners could be tried on a federal. — charge of conspiracy to destroy federally-operated communication systems in violation. of 18 U. S. C. | 1362 after they had been convicted on a state charge of conspiracy to destroy telephone company property, ‘ both charges growing out of the same acts. ¢ 2. Whether the evidence established. the ‘existence of communication systems operated and controlled by | the United. States within the yneaning of 18 U.S. C. ‘1362. ) 3. Whether there was-a sufficient showing of knowl- edge on the part of petitioners that the communica- ‘tions systems they were conspiring to destroy were - federally-operated. 4. Whether the evidence was uufficient to establish | - the participation of petitioners in the conspiracy. © _ 5. Whether it was reversible error to admit evi- dence of overt acts occurring after petitioners had 7 withdrawn from the conspiracy. STATUTES INVOLVED 18 Uz g, C. 371 provides in pertinent part: If two or more persons conspire either to - commit any offense against the United States, or to defraud ‘the United States, or any agency thereof in. any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than: $10,000 .or imprisoned not more than five years, or both. 3 * * * nee. # /} 3 18 U.S. C. 1362 amis Whoever willfully or maliciously injures. or _ destroys any of the works, property, or material .. of any radio, telegraph, telephone, or cable, line, © station, or system, or other means of com- munication, operated or controlled by the United States, whether constructed or in proc- ess of construction, or willfully or maliciously interferes\in any way with the working or use of any such line, or system, or willfully or maliciously obstructs, hinders, or delays the - transmission of: any communication over any - ‘such line, or system, shall be fined not more than $1,000 or imprisoned not more than three - “y years, or both. | CF a ag STATEMENT ick An indictment returned in the United States District Court for the Southern District of Mississippi charged petitioners Abbate and Falcone, and two others, James Shelby and Charles Perry, with conspiring, together with one Norman McLeod (not indicted), to violate 18 U: 8. C. 1362 by agreeing willfully and maliciously to injure and destroy, and hinder message transmis- © - sion over, communication systems operated and con- _ trolled by the United States (R. 2). After trial by jury, all of the defendants were convicted (R. 1074). Petitioner Abbate was seritenced to imprisonment for - three years (R. 1124-1126), petitioner Faleone for one year (R. 1127-1128), Shelby for three years (R. 1131- 1133) and ‘Perry for two years (R. 1129-1131).* ’ 1Th addition, Abbate, Shelby, and Perey were each sentenced to pay fines of $1,000.00. | os 6, In a riveteial demand for a separate trial, diniea by - the court, Shelby and Perry submitted evidence’show- \ ing that their codeferidants Abbate and Falcone, pe- : __ titioners herein, had. been previously convicted in a 3 court. of the State of Illinois, upon a plea of guilty, for a conspiracy to destroy communication facilities iy | _ of named telephorie ‘companies, an offense growing out of the same acts’ as,alleged in the federal prosecution ao. =: yoo ed ee ieee ee: government’ Ss: pede. paren of testimony _- of. Illinois ‘law enforcement officers and. officials to '- whiom petitioners ‘had made confessions after their ’ arrest on the state charge, and upon the testimony of McLeod, a co-conspirator. who had turned state’s evi--- dence, corroborated by testimony of witnesses. who had observed and’ aided the conspirators’ movements. This testimony established the following facts: a On April 15, 1955,- petitioner Abbate, a resident of. - Chicago, received a telephdne call from an acquaint- ance who asked if he were interested in making a ~ “fast buck’’ through a. deal involvi ing “Italian con- - fetti’’, «. ¢., dynamite (R. 314-315, 738). Abbate ek- ; pressed interest and agreed to get help from peti-. — tioner Falcone, also a Chicago resident, and McLeod, : _ then on parole from:the Oklahoma State Penitentiary from a sentence for armed robbery, who was familiar . with the use of dynamite (R. 315, 738, 740-741, 24, - - 47). Arrangement was made by telephone for Abbate. _ to meet a man who would give him details, a man who S. proved to be James Shelby, an assistant, viee: pres- eee nae VA ident of the Communication Workers of America (R. 317). On April 20, |1955, Abbate, with Falcone and McLeod, picked up elby_from-a. Chicago street cor- ner, drove around the city for a time, and ended up in a tavern (R. 27-48, 318, 741-743). At this time _ Shelby spoke of the strike against the Southern Bell Telephone and Telegraph Company, and expressed — dissatisfaction with the company. ’s unwillingness to’: | negotiate, saying that it was going to be necessary to © _ “get rough”’ (R. 38). He told the men that he wanted certain of the company’s s installations dynamited (R. *40, 742) and gave detailed maps and plans of.the — installations in three southern statés to Abbate (R.: 42, 44) designating the places that were to be de- stroyed (R. 751). At that time, McLeod was ‘intro- duced to Shelby as the “shooter” (R. 38) ‘and Falcone: assumed responsibility for getting the dynamite (R. . 45, 46, 48). — The following day Abbate was given five hundred dollars for expenses (R. 47, 752, 760). He gave fifty dollars of this amount to Falcone (R. 752, 760). Abbate, Falcone and-McLeod made two unsuccessful - attempts: to get dynamite (R. 53, 54). Falcone then. ‘told McLeod that he could not .go.-south. because -of business in. Chicago (R. 55). Abbate told McLeod that he was not going south because it was. too dan- gerous (R. 56); he suggested to McLeod that they might take the plans and sell them to the telephone company. .However, after McLeod ‘‘raréd up on — him,”” Abbate gave McLeod train fare to Mississippi A(R. 51, 752, , 761). 6 McLeod secured dynamite, packed it in-thrde suit cases and left for Mississippi (R. 59-60). InJ ackson, Mississippi, he registered at a hotel under an assumed name previously agreed upon by Abbate and Shelby: " (R. 61, 65, 215-218), and called Charles Perry, the - . president of the union’s local at J ackson, ‘Mississippi (R. 67).. He told Perry that Shelby had sent him to do the ‘‘shooting’”’ and that the others who were. hired _ had not shown up (R. 68, 71). Perry made arrange- ments with a girl union member who, posing as Me- Leod’s wife, drove McLeod ‘to varying locations in the area so that he could ‘‘spot” company installations, including microwave towers at and near Meridian, Mississippi, which were to be targets (R. 75-80, 646- 708). McLeod told Shelby that he felt: sure the. “other guys’’ (petitioners: here) were. going to “double-cross us but I have no proof of it” (R. 81). McLeod received $100 from Shelby (R. 88) and rode with him to see telephone company “huts” which were prospective targets. Before. McLeod could do the dynamiting, for which he expected to get $6,000, Shelby told him to go back to Chicago and get the. plans from Abbate, giving McLeod $50 for train fare (R. 81-104). Back in Chicago, about April 24th, McLeod called Abbate to get the plans (R. 108). ' Abbate was very anxious to know what Shelby thought about his failure to come south. He- came to see. ~~ MeLeod but did not bring the plans (R. 109). On April 25th-an anonymous telephone caller to _ the Illinois Bell Telephone Company that he had in- formation,he wanted to sell concerning plans of some - ( . persons to destroy . property of ie Southern Bell Telephone Company (R. 240-241). Since the caller . did. not want to come -in to the company office, a ‘street meeting was arranged for that evening (R. 241). Company investigators: arranged to have a Chicago ’ city police officer meet the caller, who turned out to be ~ Abbate (R. 243). Abbate, thinking he was meeting a company representative, told the officer he wanted six thousand dollars fer the plans which he had (R. 251). At an appointment arranged by Abbate for the fol-. lowing morning, April 26th, he was arrested ( R. 258- 259). Chicago police’ recovered: from him copies of ' the maps and diagr ams showi ‘ing the location of South-| erm Bell Telephone ‘Company installations which he and Faleone; with the aid of a girl typist, had dupli- cated from the originals the night before (R. 260, - 636-641). Both he and Faleone made admissions at the time to the Illinois authorities (R. 730-765). Two days after the arrest of Abbate and Falcone, two installations, including a ‘hut’? through which government circuits were amplified, were damaged by : explosions (R. 504-508). he government showed through testimony of an ex- pert witness, an, engineer of the Southern Bell Tele- phone Company, that no less than twenty-one of its circuits or facilities running through two sets of. co- axial cable in the area designated bythe plans found in Abbate’s, possession were used solely by agencies of the United States, including the Civil Aeronauties Ad- ministration and such military units.as the Str ategic | Air Command and: the Navy AR. 397-402). W ith the 446095—57——-2 ‘aid of a map, the expert traced these lines through the dy namite target points (R. 364-385), pointing out that the ‘‘huts’”’ performed the function of amplifying mes-— sages: sent through cables (R. 362) and that the micro- wave towers amplified radio messages (R. 386). The expert testified that many of these circuits were used, operated and completely ‘controlled by the United States twenty-four hours a day (R. 371, 380-382), and _ that they could not be repaired or otherwise touched by the company without permission of the government (R.: 373, 377). It was established that Perry and | Shelby. had first hand knowledge of these full-time gov- ernment circuits gained through their association with : the telephone company (R. 435-442, 493-498) .. ‘On appeal, the Court of Appeals affirmed as to pe- *. titioners, but, ruling that evidence of their statements ‘made after arrest by Chicago police was improperly admitted as against the other conspirators then still at large, reversed as to PaneInY. and. Perry eA Pet. 39). ARGUMENT 1. Presumably because of the many decisions by this Court that the federal and state governments are sepa- rate sovereigns which may inflict separate punishments for offenses against each sovereign arising out of a single act,’ petitioners did not enter a plea: of double jeopardy. before or at the trial based on their prior conviction and three month sentence hy the Tllinois ‘eourt.' In this Court, howéver, they call attention to a ? Moore v. / inois, 14 How. 13; Nerton v. California, - v.68. 319; United States vy. Lanza, 260 U. S. 377: Hebert v . Louisi- ind, BAUS. BIZ | 3 —>."- ae the fact that this issue of double jeopardy is presently .. before this Court for reexamination. Bartkus v. Illi- nois, No. 39, this Term, does involve prosecution by dif-- . ferent sovereigns for the same act of bank robbery where the only. differentiating element of the federal offense is the allegation of the facts necessary for fed- - eral. jurisdiction: That is also the’ situation here, al- though this case is distinguished from Bartkus | in. three respects. First, in Bartkus, the plea of double jeopardy was raised before the second trial. Second, Bartkus arises in the context of a state trial after a federal trial while this ‘ease inv olves the con- verse situation, a fedefal trial after a. state trial. Third, in Bartkus, the first trial ended in.an acquittal rather. than, as here, a conviction. Nevertheless, it may “be that the decision in Bartkus will have a bear- ing on the problem presented here, since the facts which would support a plea of double jeopardy, which are not disputed, were before the trial court and the ease is now pending on direct review of the conviction. Therefore, despite. the rule: that double jeopardy is a. defense which is waived if not timely raised,’ the Court may wish to defer disposition: of this petition until the ; Bartkus case is decided. 3 . Petitioners attack the siiainiias of the evidence to ‘tld that there was an interest of the govern- . ment protected by 18 U. S, C. 1362. Government testimony painstakingly 3 dev eloped that there ‘ were 3 Levin ve ‘nited States, 5 F. 2d 598.(C. A. 9). certiorari de- nied, 269 W. 8. 562; Brady v. United States, 24 F. 2d 399 (C. A. 8), certiorari denied, 278 U. S. 603; McGinley v. a 120 + F vd 528 (C. A. 10). AU ‘closed government circuits”’ running through the conspiracy target area (R. 370-402). - No less, than twenty-one circuits were identified by number.and lo-’ eation and specified as being: under the control of .the Strategic Air Command, the Navy or the Civil Aero- nautics Administration... Most were designated. by name as “GFP” or “Government Full Period” cir enits (R..375) ; the government operation and control - was said’ to be in effect twenty-four hours a day.(R. 371, 372, 380). There was testimony that these circuits were ‘turned over to the Gov ernment and marked in such a way,that nobody has any right to fool with. them at all’’ and that they could not ‘be repaired by the telephone company without the permission of the | eovernment (It. 373, 377, 378, 381), and that in some instances, where the military owned the distribution cables, the gover nment: did its own repairs (R. 378). Some of the cire uits, designated as “TT” or teletype- writer ¢1 ircuits, were described as engineered military circuits which were held in readiness for.a national emergency and which carried * nessages transmitted by electric machines operated exclusively: by the gov- ernment (R. 381, 382); with respect to those connect- ing with overseas circuits in Washington, the tele- . phone company had no eontrol whatever (R. 383). Petitioners’ argument, which seems to rest on the preniise that the telephone company had complete con- trol, is factually unfounded. . These cirtuits were a means of communication ee and controlled by the United States. — Petitioners are apparently contending, in aidition. that beeause these’ circuits were percentage-wise a 11 pa & . small proportion of the total circuits passing through coaxial cables of the telephone company, they are not a means of cominunication operated and controlled by the United States.within the meaning of the stat- _ ute, The plain meaning of the statute refutes this -‘eontention. ‘The language prohibits the.injury or de- struction of ‘‘any of the works, property, or material of any radio, telegraph, telephone, or cable, line, sta- tion, or system, or other means of .communication, | operated of controlled by the United States * * ns 3 It likewise prohibits the interference ‘in any way with the working or use of any such line, or system’, . — or’ the obstruction, hindrance or delaying of “the transmission of any communication over any such line, or system * *.*’’.' This broad and jnelusive .lan- - _ guage, with emphasis on operation and control; shows * the vital purpose of the legislation to protect gov-. ernment. ‘communications, not simply government- owned lines as petitigners contend (Pet. 19). The in- » dictment (R. 3) charged a conspiracy in the words of the statute to destroy, property which Was an essential and integral _p _part of - sipabonel and means of communi- eation operated and controlled by the United States, to interfere with: the use and working of communiea- tion systems so operated ‘and controlled, and to ob- struct the transmission of communications over such systems. The evidence; showing the full-time and ex- clusive government use of. specified communication circuits, _was more than sufficient | J prove these fe charges. =: A 3 = s: 12 3. Petitiéners allege that there was insufficient evi- - denee ad their knowledge of the existence of the gov- for conspiracy. to obstruct the transmission of ecom- — munications.dver such systems. Although, admittedly, the evidence showed that. co-conspirators Perry and Shelby had knowledge of the government circuits, we - “do not argue that this knowledge can automatically be imputed to petitioners. It must be shown that the con- — spiracy which petitioners joined was one to violate a federal law and therefore that interference with the - federal system was within the contemplation of the con- spiracy. But it is clear that petitioners are chargeable with what was within the ‘‘ reasonable intendment of the | ’ eoummon understanding’’ at the time they joined the | - canspiracy. United States v. Crimmins, 123. F. 2d _ 271, 273 (C. A. 2). Here the express agreement con- templated the destruction, of communication systems — covering | three states, Where destruction having such _ widespread effect is intended, interference with fed- ‘eral communications should be regarded as a natural: - consequence wirich must follow from such destruction. See United States v. Anderson, 101 F. 2d 325 (C. A. 7), certiorari denied, 307 U. S. 625; Williams. v. United States, 295 Fed. 302 (C. A. 5) ;‘ see also, Pereira v. United States, 347 U. S. 1, and Clark v. United States, 213 F. 2d 63 (C. A. 5). Petitioners, we think, “agreeing to destroy. such communications facilities, in —_*¥n these cases defendants. who were shown to have conspired — to cripple railroad transportation were presumed to have’ in- tended consequences of their acts. which in Anderson obstructed passage of mail and, in Williams, restrained interstate commerce. — p © _ 40 ~: _ reckless disregard of who might control or operate’ . them, must under these circumstances be held to have _ embraced a conspiracy. which contemplated the nat. ' ural consequences of such action—the obstruction of government communications, — 4, Petitioners contend further that ae never ‘in- tended to enter the conspiracy and that they withdrew _ before. an overt act was committed in its furtherance. ~ The facts clearly show Vans contention to be without merit. 3 Petitioner Abbate was a keyman in the formation of the conspiracy. It was he who contdcted petitioner _ Falcone and McLeod (R. 740-741) and brought them together with Shelby (R. 741-742). It. was he who did most. of the talking (R. 39), and who received the money for expenses connected with the planned de- struction (R. 752). Petitioner Falcone received fifty dollars of this expense money (R. 760) and agreed to: get. ‘the dynamite (R. 45). A conspiracy existed and overt acts *in furtherayce ‘thereof had been committed" - at this point. Moreover there was no showing of with- . drawal at that. time. While petitioners refused to go _ south, Abbate gave Mcl.eod the money. to go south, sending him on his criminal mission (R. 56). At. - this time certainly the conspiracy was still existing as to _ petitioners. See United States v. Britton, 108 U. S. _ 199; United States v. Beck, 118 F. 24 178 (C. A. 7), ~ eertiorari ‘denied, 313 U. S. 587; Eldredge v. United _ States, 62 F. 2d 449 (C. A. 10). Abbate did not in. __ faet arrange his surreptitious contact with the tele- Phone company until April 25th after McLeod had re- é oe 14 ennned from the. south. fea up until this time. at —_ there had been no affirmative or effective act which could constitute a withdrawal. Hyde v. T “nited States, 225 U. S. 347; Eldredye v. ‘United States, supra; United States v. Compagna, 146 F. 2d 524 & A. 2), certiorari denied, 324 U. S. 867. 5. Petitioners contend that the trial court committed prejudicial error in admitting into evidence testimony . concerning actual dynamiting, oceurring on April 28, © a 1955, which damaged or destroyed facilities included — .in conspiratorial. plans. Such testimony was clearly. . ‘@ admissible against Shelby and .Perry, not only to in- dicate the nature of tue conspiracy, but for the reason _ that they were still at large and presumably acting pursuant t6 the conspiracy. We assume that peti- = tioners, having made disclosures and having been jailed two days earlier, could not have heen directly respon- sible for the destruction. Nevertheless we believe such '* evidence to have been admissible against them to show the nature of the original conspiracy which they joined. See Lutwak v. United States, 344 U. 8. 604. Moreover, even assuming the evidence to be improper, its adminis- sion would have been harmless error under the cireum- stancés here. The jury could not have. been misled. The evidence was clear that petitioners were in jail at the time of the bombings. ‘The charge of the court in- dicated that they were at this time ‘‘out of the 995 conspiracy”. It was the detailed testimony recount- ° Thus the charge reads in part ( R. 1049- 1050) : “Now, you have evidence here tending to show that while this | thing happened in tect in which the officers arrested Abbate 15 ' Ing petitioners’ admissions, corroborated by the testi- mony of. McLeod and’ others, which provided over-— whelming proof of their guilt. . | '. Respectfully submitted. | : S| J. LEE RANKIN, pats Solicitor General. | _ Rurvus D. McLean, ° Acting Assistant Attorney General. BEATRICE ROSENBERG, Jutia P, Cooper, | Attorneys. > 77 | at NovEMBER 1957. oF : and afterwards rmee Falcone, that it happened before the - dynamiting down here. * * * | “Now, as to’ these two men, when they were arrested by the . Officers and were placed ‘in prison, they no longer had any power to commit acts or to-do things that might bind the others and | _ for that reason, while I had some question in my mind at. first, a _ careful examination of the law has convinced me that I should .chatge you that insofar as their statements to the police officers | up there are concerned, and to the extent that ty may involve anybody else, it is not to be considered against the-other person. In other words, it can be considered against them alone and it can, even though they were out of the conspiracy, that evidence is admissible against them for the purpose of proving that they were parties to the conspiracy. In other words, they can make admissions insofar as they are concerned and it is receivable in - evidence to be received along with all the other evidence to de- _ termine whether they were parties to the conspiracy,” .@- ©. S GOVERNMENT PRINTING OFFICE: 1987 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386409_0139%3A6. Public record. Not legal advice.