359 U.S. 187 (1959), 7, Abbate v. United States

Docket Nº:No. 7
Citation:359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729
Party Name:Abbate v. United States
Case Date:March 30, 1959
Court:United States Supreme Court

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359 U.S. 187 (1959)

79 S.Ct. 666, 3 L.Ed.2d 729



United States

No. 7

United States Supreme Court

March 30, 1959

Argued October 22, 1958




Indicted in an Illinois State Court for violating an Illinois statute making it a crime to conspire to injure or destroy the property of another, petitioners pleaded guilty, and each was sentenced to three months' imprisonment. Thereafter, because of the same conspiracy, they were indicted, tried and convicted in a Federal District Court for violating 18 U.S.C. § 371 by conspiring to violate 18 U.S.C. § 1362, which forbids the injury or destruction of communications facilities "operated or controlled by the United States."

Held: their federal prosecution was not barred under the Double Jeopardy Clause of the Fifth Amendment by their earlier conviction in the State Court. United States v. Lanza, 260 U.S. 377. Pp. 187-196.

247 F.2d 410 affirmed.

BRENNAN, J., lead opinion

MR. JUSTICE BRENNAN delivered the opinion of the Court.

During a strike against the Southern Bell Telephone and Telegraph Company, the petitioners and one McLeod were solicited in Chicago, Illinois, by a union official, Shelby, to dynamite facilities of the telephone company located in the States of Mississippi, Tennessee, and Louisiana. The four men met in Chicago, where Shelby gave the petitioners and McLeod the plans of the facilities to

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be dynamited and instructed them as to the method to be used. After Shelby left Chicago, the petitioners told McLeod that they would not go though with the plan. McLeod, however, obtained dynamite and went to Mississippi to destroy telephone company facilities located there. The petitioners thereupon disclosed the plot to the telephone company and the Chicago police.

The petitioners, with Shelby and McLeod, were subsequently indicted by the State of Illinois for violating an Illinois statute making it a crime to conspire to injure or destroy the property of another.1 The indictment describes the property as "communication facilities belonging to the Southern Bell Telephone & Telegraph Company" and "belonging to the American Telephone and Telegraph Company." The petitioners entered pleas of guilty to the indictment, and were each sentenced to three months' imprisonment.

Thereafter, indictments were returned in the United States District Court for the Southern District of Mississippi against the petitioners and Shelby, and also against one Perry, who pointed out to McLeod the property to be dynamited. This indictment does not refer to the facilities as belonging to the telephone companies, but charges the offense of violating 18 U.S.C. § 3712 by conspiring

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to destroy, contrary to 18 U.S.C. § 13623

certain works, property and material known as coaxial repeater stations and micro-wave towers . . . located in the States of Mississippi, Tennessee and Louisiana . . . which were essential and integral parts of systems and means of communication operated and controlled by the United States.

McLeod confessed to his part in the conspiracy and testified on the federal trial to petitioners' acts of participation in the conspiracy. These same acts were the basis of the Illinois convictions. The Government also introduced proof that the Strategic Air Command, the Civil Aeronautics Administration, the Navy, and other federal agencies have the exclusive use of some of the circuits within [79 S.Ct. 668] the coaxial cables carried by the repeater stations and microwave towers that were to be destroyed. The federal jury found the four defendants guilty as charged. On appeal, the Fifth Circuit Court of Appeals reversed the convictions of Shelby and Perry for error in the admission of evidence, but affirmed the convictions of the petitioners, 247 F.2d 410. We granted certiorari limited to consideration of the claim that the federal prosecutions, based on the same acts as were the prior state convictions, placed petitioners twice in jeopardy contrary to the Fifth Amendment, 355 U.S. 902.

In Bartkus v. Illinois, 359 U.S. 121, the order of the prosecutions was the reverse of the order in this case. Here, the federal prosecution came after the Illinois convictions. Thus, this case squarely raises the question whether a federal prosecution of defendants already prosecuted for the same acts by a State subjects

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those defendants "for the same offense to be twice put in jeopardy of life or limb" in violation of the Fifth Amendment.4

We do not write on a clean slate in deciding this question. As early as 1820, in Houston v. Moore, 5 Wheat. 1, it was recognized that this issue would arise from the concurrent application of state and federal laws.5 During the following three decades, a number of state courts reached differing conclusions as to whether a state prosecution would bar a subsequent federal prosecution of the same person for the same acts.6 Against this background, this Court thoroughly considered the question in three cases between 1847 and 1852. In Fox v. Ohio, 5 How. 410, the petitioner had been convicted of passing a counterfeit coin of the United States within the State of Ohio in violation of a state statute. She contended that the Fifth Amendment prohibited successive state and federal prosecutions for the same acts, and therefore that a prosecution under the Ohio statute would prevent federal authorities from prosecuting the same act under the federal counterfeiting laws. Thus, the argument continued, the Court should declare the Ohio statute unconstitutional under the

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Supremacy Clause in order to preserve the effectiveness of federal law enforcement. Houston v. Moore and some of the leading state authorities bearing on whether the Fifth Amendment applied to successive state and federal prosecutions were argued to the Court. All members of the Court agreed that the Fifth Amendment would not prohibit a federal prosecution even though based on the same act of passing the counterfeit coin that resulted in the state prosecution. There was a division, however, as to what disposition of the case was required by this conclusion. The majority reasoned that, since the Ohio prosecution would not render the Federal Government powerless to enforce its counterfeit laws, there was no basis for declaring the Ohio statute unconstitutional under the Supremacy Clause, Const. art. 6. Mr. Justice McLean, dissenting, thought that, since "the punishment under [79 S.Ct. 669] the State law would be no bar to a prosecution under the law of Congress," 5 How. at 439, this undesirable result should be avoided by declaring the state statute unconstitutional, for, he said, "[n]othing can be more repugnant . . . than two punishments for the same act," id., 5 How. at 440. Three years later, in United States v. Marigold, 9 How. 560, a unanimous Court affirmed a conviction under the federal counterfeiting statute that was discussed in Fox. The Court, in holding that a state and a federal statute could both apply to the same conduct, accepted the conclusion of Fox that

the same act might . . . constitute an offense against both the State and Federal governments, and might draw to its commission the penalties denounced by either. . . .

9 How. at 569.

The third case, Moore v. Illinois, 14 How. 13, gave clear expression to the emerging principle that the Fifth Amendment did not apply to a federal prosecution subsequent to a state prosecution of the same person for the same acts. That case involved a conviction of Moore

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under an Illinois statute for harboring an escaped slave. A federal statute outlawed the same act as an interference with the rights of the owner of the slave. Moore urged that the Illinois statute was void "as it subjects the delinquent to a double punishment for a single offence," 14 How. at 19. The Court rejected this argument, saying:

Every citizen of the United States is also a citizen of a State or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offence or transgression of the laws of both. . . . That either or both may (if they see fit) punish such an offender cannot be doubted. Yet it cannot be truly averred that the offender has been twice punished for the same offence, but only that, by one act, he has committed two offences, for each of which he is justly punishable. He could not plead the punishment by one in bar to a conviction by the other; consequently, this court has decided, in the case of Fox v. Ohio, . . . that a State may punish the offence of uttering or passing false coin, as a cheat or fraud practised on its citizens, and, in the case of the United States v. Marigold, . . . that Congress, in the proper exercise of its authority, may punish the same act as an offence against the United States.

14 How. at 20. Justice McLean again dissented on the ground of his dissent in Fox, namely, that the state law should be declared invalid for the very reason that "the conviction and punishment under the State law would be no bar to a prosecution under the law of Congress." Id., 14 How. at 21.

The reasoning of the Court in these three cases was subsequently accepted by this Court, in dictum, in the following

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cases: United States v. Cruikshank, 92 U.S. 542, 550; Coleman v. Tennessee, 97 U.S. 509, 518; Ex parte Siebold, 100 U.S. 371, 389; United States v. Arjona, 120 U.S. 479, 487; Cross v. North Carolina, 132 U.S. 131, 139; In re Loney, 134 U.S. 372, 375; Pettibone v. United States, 148 U.S. 197, 209; Crossley v. California, 168 U.S. 640, 641; Sexton v. California, 189 U.S. 319, 322-323; Matter of Heff, 197 U.S. 488, 507; [79 S.Ct. 670] Grafton v. United States, 206 U.S. 333, 353-354; Southern R. Co. v. Railroad Comm'n of Indiana, 236 U.S. 439, 445; and ...

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