we find no fatal variance in the proof that would prejudice the defendants' substantial rights. 534 F.2d at 38. Furthermore, the Government did prove the majority of the thirty overt acts alleged in the indictment.
The defendants allege that the Court erred in failing to declare a mistrial because the prosecutor, in his closing to the jury, mentioned death and violence. We find that the closing address of the prosecutor was neither inflammatory nor prejudicial.
The defendants urge that the Court erred in failing to declare a mistrial because the Government withheld material that they claim should have been produced pursuant to Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). During the course of the trial, a question arose as to whether a transcript of a phone conversation that Jack Nigro had with defendant Duffy had been prepared by him or by his secretary, Carol Seminaro, and whether Nigro had requested Seminaro to say that she had typed the transcript. After discussion with counsel, the Court ordered the Government to produce any material in its file concerning Seminaro; the Government represented that it had no such material. (N.T. 12-183; 12-195; 15-31; 15-37; 15-54; 15-57; 15-63). Ms. Seminaro was then called as the Court's witness at which time she testified fully as to her conversations with Nigro and with Government agents. (N.T. 15-23 -- 50). Following her testimony, the defendants moved for a mistrial on the ground that the Government had withheld Brady material in connection with her testimony. (N.T. 15-60). The Court denied the defendants' motion on the basis of its finding in this record that Brady material was not withheld. (N.T. 15-67). Furthermore, the Court permitted the defense to recall Nigro for the purpose of determining if he had asked Seminaro to lie about the preparation of the transcript. (N.T. 15-71 -- 73). The defense, however, did not recall Nigro for further cross-examination. (N.T. 15-74). We find no error in the Court's ruling. The Brady rule involves discovery, after trial, of information known to the prosecution but unknown to the defense. United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 2397, 49 L. Ed. 2d 342 (1976).
In the present case, the defense was aware of all the Government's information during trial. Furthermore, unlike United States v. Harris, 498 F.2d 1164 (3d Cir.), cert. denied 419 U.S. 1069, 95 S. Ct. 655, 42 L. Ed. 2d 665 (1974), cited by defendants, there was no undisclosed false testimony by any of the Government's witnesses.
The defendants allege that the Court erred in admitting into evidence firearm purchase records and telephone toll receipts without adequate authentication and chain of custody testimony. We have reviewed the numerous occasions when such records were admitted into evidence and find no error.
The defense alleges that the Government did not comply with a pretrial consent order in that it repeatedly introduced evidence which had not been disclosed to the defense. In this complex case involving a multitude of documents, we find no bad faith on the part of the Government and no prejudice to the defendants.
Motion To Inspect Grand Jury Minutes.
The defendants have moved for permission to inspect the grand jury minutes pursuant to Rule 6(e) of the Federal Rules of Criminal Procedure. This motion was made by the defendants on the last day of this protracted trial and is based on the allegation that the Government willfully misused the grand jury process in that no evidence was presented to the grand jury concerning the violation of 18 U.S.C. § 951. (N.T. 17-104 -- 107). Even though the counts charging violation of this statute were dismissed at the close of the Government's case, the defendants allege that they were prejudiced by the Government's bypass of the grand jury procedure because inflammatory evidence concerning terrorism and insurgency which, they claim, was not relevant to the charges on which they were found guilty, was introduced into evidence to support the Government's case under 18 U.S.C. § 951.
Although the defendants have cited cases discussing prosecutorial or judicial amendment of a valid indictment or variance of proof between the allegations of the indictment and the evidence at trial, the real thrust of their argument is that there was insufficient evidence presented to the grand jury to support a violation of 18 U.S.C. § 951. In Costello v. United States, 350 U.S. 359, 76 S. Ct. 406, 408-09, 100 L. Ed. 397 (1956), the Supreme Court said:
If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. . . . An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more. (Footnote omitted).
See also, United States v. Calandra, 414 U.S. 338, 94 S. Ct. 613, 618, 38 L. Ed. 2d 561 (1974); United States v. Basurto, 497 F.2d 781 (9th Cir. 1974); United States v. Kenny, 462 F.2d 1205 (3d Cir. 1972), cert. denied 409 U.S. 914, 93 S. Ct. 233, 34 L. Ed. 2d 176; United States v. Rundle, 383 F.2d 421 (3d Cir. 1967), cert. denied 393 U.S. 863, 89 S. Ct. 144, 21 L. Ed. 2d 131 (1968). Disclosure of grand jury minutes is committed to the discretion of the trial judge. Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 79 S. Ct. 1237, 3 L. Ed. 2d 1323 (1959); United States v. Bertucci, 333 F.2d 292 (3d Cir.), cert. denied 379 U.S. 839, 85 S. Ct. 75, 13 L. Ed. 2d 45 (1964). We see no special circumstances which would justify our rejection of this well settled law by permitting the defendants to inspect the grand jury minutes.
Such ruling is particularly applicable in this case where defendants' motion was filed on the last day of trial and after the Court had directed a verdict of acquittal as to the counts alleging a violation of 18 U.S.C. § 951.
Even if we accept defendants' argument, however, they were not prejudiced by any testimony produced by the Government to support the charges pursuant to 18 U.S.C. § 951. Furthermore, Rule 12(b)(2) of the Federal Rules of Criminal Procedure requires defenses and objections based on defects in the indictment, other than that it fails to show jurisdiction in the Court or to charge an offense, to be raised prior to trial. Defendants' motion, made on the last day of trial, was therefore untimely filed. West v. United States, 359 F.2d 50 (8th Cir.), cert. denied, 385 U.S. 867, 87 S. Ct. 131, 17 L. Ed. 2d 94 (1966). See Sewell v. United States, 406 F.2d 1289 (8th Cir. 1969); United States v. Visconti, 261 F.2d 215 (2d Cir.), cert. denied 359 U.S. 954, 79 S. Ct. 743, 3 L. Ed. 2d 762 (1959); United States v. Miller, 246 F.2d 486 (2d Cir.), cert. denied 355 U.S. 905, 78 S. Ct. 332, 2 L. Ed. 2d 261 (1957).
Accordingly, as set forth in the attached Order, the Court, for the above mentioned reasons:
1. Denies the defendants' motion for arrest of judgment;
2. Grants the defendants' motion for judgment of acquittal on Counts 4, 5, 9, 11, 13, 15 and 16;
3. Denies the defendants' motion for judgment of acquittal on Count 1;
4. Denies the defendants' motion for a new trial; and
5. Denies the defendants' motion to inspect the grand jury minutes.
RAYMOND J. BRODERICK, J.
AND NOW, to wit, this 12th day of OCTOBER, 1976, upon consideration of the motions of defendants Cahalane and Byrne, and the opposition thereto, it is hereby ORDERED and DECREED as follows:
1. The defendants' motion for arrest of judgment is DENIED;
2. The defendants' motion for judgment of acquittal on Counts 4, 5, 9, 11, 13, 15 and 16 is GRANTED;
3. The defendants' motion for judgment of acquittal on Count 1 is DENIED;
4. The defendants' motion for a new trial is DENIED;
5. The defendants' motion to inspect the grand jury minutes is DENIED.
RAYMOND J. BRODERICK, J.