Abbate v. United States, 16226.

• Decision Date: 09 September 1957
• Docket Number: No. 16226.,16226.
• Citation: 247 F.2d 410
• Parties: Louis Joseph ABBATE, Michael Louis Falcone, Charles G. Perry and James Shelby, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

247 F.2d 410 (1957)

Louis Joseph ABBATE, Michael Louis Falcone, Charles G. Perry and James Shelby, Appellants, v. UNITED STATES of America, Appellee.

No. 16226.

United States Court of Appeals Fifth Circuit.

August 8, 1957.

Rehearing Denied September 9, 1957.

Charles A. Bellows, Chicago, Ill., Frank F. Mize, Forest, Miss., Quitman Ross, Laurel, Miss., and Jason Ernest Bellows, Chicago, Ill., for appellants, Louis Joseph Abbate and Michael Louis Falcone.

Robert E. Hauberg, U. S. Atty., Richard T. Watson, Asst. U. S. Atty., Jackson, Miss., for appellee.

Before RIVES, JONES, and BROWN. Circuit Judges.

RIVES, Circuit Judge.

The four appellants were jointly indicted for conspiring¹ to commit the offense denounced by 18 U.S.C.A. § 1362,² that is, willfully or maliciously to injure or destroy means of communication operated or controlled by the United States. The overt acts charged extended over a period of ten days, from April 19 to April 28, 1955. A strike was then going on by the Communication Workers of America, CIO, against the Southern Bell Telephone and Telegraph Company.³

The defendants Shelby and Perry were officers of the Communication Workers of America, Shelby being an assistant to a vice-president stationed in Washington, D. C. and Perry being President of the Jackson, Mississippi local of that union. Abbate and Falcone were residents of Chicago, Illinois. Norman D. McLeod, also named in the indictment as a co-conspirator but not indicted, was on parole from the Oklahoma State Penitentiary where he had been serving a sentence for armed robbery. He turned state's evidence and was the first and perhaps the principal witness for the Government.

Prior to arraignment, Shelby and Perry filed a joint motion for a severance and separate trial, setting out that Abbate and Falcone had been convicted in the Criminal Court of Cook County, Illinois⁴ for a crime based upon the identical acts charged in this case, and that, subsequent to their arrests in Illinois, Falcone and Abbate had made lengthy confessions and statements implicating Shelby in the alleged conspiracy. Their motion for severance was overruled.

McLeod's testimony consumes nearly 200 pages of the typed record. He testified in detail to the formation of the conspiracy and to the acts of each of the conspirators. If believed by the jury, his testimony sufficed for the conviction of all four defendants. Its credibility, however, was severely attacked, not only because of its inherent weakness as the testimony of a co-conspirator, but also because of his conviction of grand theft in California and of armed robbery in Oklahoma. Further, McLeod admitted to a long career of criminal dynamiting, and had refused to testify for the Government until assured by one of the attorneys for the telephone company that "he would see to it" that McLeod was not indicted for conspiracy, and, apparently, that promise had been kept. The Government, therefore, made every effort to corroborate McLeod's testimony.

The taxicab driver who had transported McLeod from Canton, Mississippi to Jackson, Mississippi was produced, as was the Chicago bartender in whose tavern the conspiracy had been hatched. Abbate was the only conspirator other than McLeod whom the bartender could definitely identify. The Government then introduced an investigator for the Illinois Bell Telephone Company and a detective attached to the Chicago Police Department, who testified at great length concerning the statements and admissions of Abbate which did corroborate McLeod in many particulars, including operation sheets and maps showing details of the planned criminal dynamiting. Over the strenuous objections of Shelby and Perry, the testimony as to Abbate's statements and confessions was admitted for the time being as against all four defendants, with the court stating,

"After its over, I shall tell the jury as to how to weigh the evidence. It\'s incomplete at this time. The case is incomplete and I, myself, I am not fully informed to instruct the jury."

This testimony was received about the middle of the week-long trial.

The Government continued to present a most impressive case. It introduced experts to prove that the Government operated and controlled many of the telephone circuits planned for destruction. It showed by former co-workers of Shelby and of Perry that they had worked on Government circuits and were familiar with their operation and control. It proved Shelby's transportation to Chicago and his registration at a hotel there under an assumed name. It proved by a stenographer that she had retyped the operation plans at the instance of Abbate and Falcone. It proved by two young women residents of Jackson, Mississippi, that, at Perry's request, one of them had accompanied McLeod on a tour of inspection to familiarize himself with the installations to be dynamited, the young woman posing as his wife to allay suspicion in the event they were questioned. As an impressive closing witness, the Government introduced Frank Furlic, Esquire, Assistant State Attorney of Chicago, Illinois, who had interviewed Abbate and Falcone. The court again declined a mistrial and separate trial as to Shelby and Perry, and declined to limit the consideration of Abbate's and Falcone's statements to the one making the statements, stating that "* * * when it comes time to charge the jury, then, I will tell them what the law is."

At four fifteen on Friday afternoon, the last day of the trial, the court commenced its lengthy (more than forty typed pages) charge to the jury. When that charge had been more than half completed, the court finally got around to instructing the jury as follows:

"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 charge you that insofar as their statements to the police officers up there are concerned, and to the extent that they 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

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