U.S. v. Schilleci

• Decision Date: 17 January 1977
• Docket Number: No. 75-4362,75-4362
• Citation: 545 F.2d 519
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edward Calvin SCHILLECI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 519

545 F.2d 519

UNITED STATES of America, Plaintiff-Appellee, v. Edward Calvin SCHILLECI, Defendant-Appellant.

No. 75-4362.

United States Court of Appeals Fifth Circuit.

Jan. 17, 1977.

Julian R. Murray, Jr., New Orleans, La., for defendant-appellant.

Gerald J. Gallinghouse, U. S. Atty., John H. Musser, IV, Cornelius R. Heusel, Mary Williams Cazalas, Asst. U. S. Attys., New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before AINSWORTH and RONEY, Circuit Judges, and ALLGOOD, District Judge.

ALLGOOD, District Judge.

This case involves the indictment and conviction of Edward Calvin Schilleci, Police Chief of Slidell, Louisiana, on three counts of conspiracy to intercept wire and oral communications in violation of 18 U.S.C. §§ 371, 2511 and § 2 (aiding and abetting) and two counts of perjury in violation of 18 U.S.C. § 1623. Following FBI investigation, the defendant Schilleci was summoned to testify before a grand jury concerning certain wire tapping and bugging activities in the Slidell area. Schilleci was indicted not only for wire tapping conspiracy and for bugging, but for perjury before the grand jury concerning his alleged lack of knowledge of the incidents. Following trial, the defendant was convicted on all counts and was sentenced to serve one year and one day on each count, the sentences to run concurrently. Schilleci's co-indictee, James Decker, was not tried, the Government having entered a "deferred prosecution" arrangement in his case.

Appellant raises the following issues in support of his contention that his conviction on all five counts be reversed and that his case be remanded for a new trial.

A. Did the trial court err in refusing to sever the perjury counts from the substantive counts?

B. Did the trial court err in refusing to strike surplusage from the incident?

C. Did the trial court err in allowing Emmaline Hickey to testify as a rebuttal witness?

D. Did the trial court err in refusing to allow the defendant the right to present evidence in support of his motion for a new trial?

E. Did the trial court err in refusing to grant defendant's motion for judgment of acquittal as to Counts III and IV of the indictment?

F. Did the trial court err in its instruction to the jury regarding specific intent and ignorance of the law?

G. Did the trial court's violation of the "Mann Rule" constitute reversible error?

Underlying Facts

The defendant at the time of trial was the Police Chief of Slidell, Louisiana, and had been so for over seventeen years. He had been an officer for over twenty-seven years. Approximately two or three years prior to trial, the Slidell police had been given certain electronic equipment through an L.E.A.A. grant. The equipment was kept in the office of the Police Chief. For some while, the Slidell police had been attempting to apprehend a drug operator they thought operated out of a local bar, "Fooser's den." Having failed to make a case through the use of a confidential informant, a decision was made to tap the telephone at Fooser's Den. While the evidence is conflicting as to whether the Chief participated in making the decision, he did not deny that he was present when the decision was made, although he claims mere presence and not assent. The equipment was spread out in the Chief's office and several officers were called in by Sergeant Swann to discuss how to operate the equipment. Following a discussion in the Chief's office, Sergeant Swann and a representative of the telephone company met at 2:00 a. m. and installed the phone tap. Neither reported back to the Chief. After several days the tap was removed when it was learned that the narcotics operator no longer worked at Fooser's Den. Swann did not keep the Chief informed of what was going on at the time of the tap. No court order was issued authorizing the wire tap.

A second incident involved the "bugging" of the Clerk's office of the Slidell Court. The Police Chief had installed an alarm button underneath the desk of the Clerk to be used in the event that a disturbance broke out in the Clerk's office. It appears from the evidence that the Police Chief had just fought a tough political contest in an effort to be re-elected. It was speculated that some of the campaign material most damaging to the Chief originated in the Clerk's office. At a meeting after the election, Patrolman Hickey and Schilleci discussed the installation of a microphone in the Clerk's office. The microphone was proposed as an alternative to the alarm button which was hit on several occasions by secretaries sitting down at the desk thereby causing false alarms. Hickey installed a microphone in the place of the button, using the same wiring, and installed a speaker in the dispatcher's office, as well as running wires to the Chief's desk intercom. When the microphone was discovered, the wires in the dispatcher's office were disconnected, making the system inoperative. Schilleci maintained his lack of knowledge or approval of the bugging operation.

When called before the grand jury to testify concerning the two incidents, the Chief testified that he had no knowledge of the wire taps, or the bugging, and maintained his innocence. The grand jury not only indicted him on the substantive counts, but also for perjury in denying his knowledge or approval of the acts.

Discussion of the Issues Presented

A. Severance of Perjury Counts

The defendant claims that the trial judge erred in failing to sever the perjury counts from the substantive counts in the indictment because they arose from the defendant's testimony before the grand jury which was consistent with his plea of "not guilty." The defendant claimed that a trial on all the counts of the indictment would impermissibly create the impression that the claim of innocence had been rejected by another jury, thereby increasing the burden on the defendant to prove his innocence.

It should be pointed out that denial of a motion for severance under Federal Rules of Criminal Procedure, Rule 14, is reviewable only for an abuse of discretion. United States v. Marionneaux, 514 F.2d 1244 (5th Cir. 1975).

The case most closely on point to the issue raised is United States v. Pacente, 7th Cir., 490 F.2d 661, reversed en banc 503 F.2d 543 (7th Cir. 1974), cert. denied 419 U.S. 1048, 95 S.Ct. 623, 42 L.Ed.2d 642. In Pacente, a policeman was convicted for extortion and for perjury before the grand jury. In affirming the decision of the District Court, the Seventh Circuit en banc found no abuse of discretion in denying severance. Pacente contended that the fact that the jury was aware, through the indictment, that the grand jury did not believe his testimony "would discredit (his) denial at trial if he chose to testify, and would in any event tend to make the proof against him seem more persuasive." 503 F.2d at 547. While the Seventh Circuit initially found an abuse of discretion in failing to sever under these circumstances, the en banc court reversed, finding it an "unwarranted over-refinement to speculate that" the petit jury would be persuaded by the fact that the mere accusation had been made by the grand jury. Id.

We do not find it necessary to decide this issue. We merely urge caution and careful, deliberate consideration by the district courts should it again appear in a similar setting.

B. Surplusage in Indictment

C. Allowance of Rebuttal Witness

These two issues are also to be judged by the abuse of discretion standard. The defendant here complained that the indictment was too lengthy because it set out verbatim portions of the defendant's grand jury testimony rather than giving a short concise statement of the charges. The use of verbatim portions of grand jury testimony in perjury counts of an indictment is the normal manner in which most indictments are brought. The testimony set out those portions alleged to be false. Sufficient testimony was given to show the context of the questions and answers. Under the terms of Federal Rules of Criminal Procedure, Rule 7(c), there was no abuse of discretion in failing to strike the alleged surplusage.

After the defense had rested its case, the Government called as a rebuttal witness the wife of Patrolman Hickey, who testified that she was present when the Chief discussed the bugging of the Clerk's office. The defendant objected because the testimony was not really rebuttal in nature, but was a continuation of the Government's case in chief. Again there was no abuse of discretion on the part of the trial judge. The conduct of the trial is exclusively within his province. The testimony of Mrs. Hickey, while repetitious of earlier testimony, was directly contradictory to that given by the defendant while on the stand. While it may have been a continuation of the Government's main case, it was also rebuttal. See, United States v. Sadler,488 F.2d 434 (5th Cir. 1974). The trial judge did not commit error in allowing the testimony.

D. Presentation of Evidence in Support of Motion for New Trial

The defendant argues that it was error for the trial court to deny his motion for new trial, contending that there was newly discovered evidence which he was allowed to present only through a "proffer of evidence." Motions for a new trial, and the processing of such motions are addressed to the sound discretion of the trial court. The court's decision will not be reversed without a showing of an abuse of that discretion. United States v. Jacquillon,469 F.2d 380 (5th Cir. 1972), cert. denied 410 U.S. 938, 93 S.Ct. 1400, 35 L.Ed.2d 604. "In order to justify a new trial, the rule is that the evidence must in fact be newly discovered and that the movant must have exercised due diligence in discovering the evidence. It must not be merely cumulative or impeaching. Furthermore, the new evidence must be material and be such that it would probably produce an acquittal in a new trial. United...