The opinion of the court was delivered by: BRODERICK
Presently before the Court are the motions of defendants Neil Byrne and Daniel Cahalane for Arrest of Judgment and/or for Judgment of Acquittal and/or for a New Trial. They have also moved for permission to inspect the grand jury minutes. After a lengthy four week trial, on June 21, 1976, the jury returned a verdict of guilty as to defendants Byrne and Cahalane and a verdict of not guilty as to defendant Daniel Duffy
in connection with some counts of the twenty-three count Indictment. Both Byrne and Cahalane were found guilty on Count 1 which charged them with conspiracy to export firearms without a license; defendant Byrne also was found guilty on Counts 5 and 13 which charged him with exporting firearms without a license and aiding and abetting; defendant Cahalane also was found guilty on Counts 4, 9, 11, 15 and 16 charging him with exporting firearms without a license and aiding and abetting.
Although the defendants have alleged numerous grounds on which they base their motions, we find that only their allegation that the evidence is insufficient to support a conviction on either the substantive counts of aiding and abetting the exportation of firearms without a license and on the conspiracy count raises substantial questions.
Sufficiency of the Evidence as to Conspiracy.
Both defendants were charged in the indictment with conspiracy to export firearms without a license in violation of 18 U.S.C. § 371 and 22 U.S.C. § 1934(c)
and the regulations promulgated thereunder, 22 C.F.R. Section 127.01.
The theory on which the government proceeded at trial was that although the facts and circumstances relating to the manner in which the firearms left the country were not known, the evidence and the inferences which can be drawn from it are sufficient for the jury to find beyond a reasonable doubt that the defendants conspired to export the firearms without a license.
The evidence produced at trial, viewed in a light most favorable to the government, Glasser v. United States, 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457 (1942); United States v. Armocida, 515 F.2d 29 (3d Cir. 1975), cert. denied 423 U.S. 858, 96 S. Ct. 111, 46 L. Ed. 2d 84 (1975), is sufficient to establish that the defendants had knowledge of a plan to export firearms without a license, entered into an agreement to further that plan, and performed acts to further the illicit purpose. Although the evidence is of a circumstantial nature, we find it sufficient to permit the jury to infer the existence of a widespread conspiracy to purchase arms and export them illegally to Ireland and the defendants' participation in it.
To support a conspiracy conviction, the government must show both an agreement and a specific intent to achieve some unlawful goal. United States v. Klein, 515 F.2d 751, 753 (3d Cir. 1975). The defendants contend that under the facts of this case the evidence is insufficient to support a verdict of guilty as to the conspiracy count in that there is no evidence that a common purpose existed. In United States v. Kates, 508 F.2d 308, 310-311 (3d Cir. 1975), the Third Circuit stated:
It is well stated that the "gist" of a conspiracy is an agreement. However slight or circumstantial the evidence may be, it must, in order to be sufficient to warrant affirmance, tend to prove that the appellant entered into some form of agreement, formal or informal, with his alleged co-conspirators. Similarly, we have stated that the essence of a conspiracy is a "unity of purpose" or "common design." [Footnote omitted].
In explaining the nature of the agreement necessary to prove a conspiracy, the Third Circuit, in Kates, further stated:
[A] formal agreement need not be established; rather, a defendant's involvement in the conspiracy may be inferred from circumstantial evidence. The Government need not show that the defendant participated in every transaction or even that he knew the identities of his alleged conspirators or the precise role which they played. Id. at 310. [Footnotes omitted].
The defendants also contend that neither defendant Byrne nor defendant Cahalane had any knowledge of the conspiracy's illicit purpose when they performed the acts described in the indictment and proved at trial. There is no question that in order to sustain a conviction for conspiracy the evidence must be sufficient for the jury to reasonably infer that the alleged conspirator had knowledge of the conspiracy's illicit purpose when he performed the acts in furtherance of the illicit purpose. This requirement is set forth by our Third Circuit in United States v. Klein, supra, in the following language:
To support a conspiracy conviction, the government must show both an agreement and a specific intent to achieve some unlawful goal. United States v. DeCavalcante, 440 F.2d 1264, 1275 (3d Cir. 1971); United States v. Borelli, 336 F.2d 376, 384 (2d Cir. 1964). We do not dispute that a party who associates himself with an ongoing conspiracy may become a party to that agreement, either expressly by agreement or implicitly by acts done in furtherance of that conspiracy. Direct Sales v. United States, 319 U.S. 703, 709, 63 S. Ct. 1265, 87 L. Ed. 1674 (1943); United States v. Lester, 282 F.2d 750, 753 (3d Cir. 1960). At a minimum, however, it must be shown that such a person has knowledge of the conspiracy's illicit purpose when he performs acts which further that illicit purpose. Direct Sales, supra; United States v. Salerno, 485 F.2d 260, 263 (3d Cir. 1973); United States v. American Radiator & Standard Sanitary Corporation, 433 F.2d 174 (3d Cir. 1970). By acting in furtherance of the co-conspirators' goals with knowledge of the improper purpose, the jury can reasonably infer that the new member has achieved a tacit agreement with members of the ongoing conspiracy. Without knowledge of some improper purpose, the agreement, which is the heart of any conspiracy indictment, cannot be inferred from acts, even acts which further the purpose of the conspiracy. United States v. Kates, 508 F.2d 308 (3d Cir. 1975). 515 F.2d at 753 [Footnotes omitted].
As the Court pointed out, such knowledge may be shown by circumstantial evidence "especially in a conspiracy case where direct evidence is likely to be scant." 515 F.2d at 754 [Footnote omitted]. Furthermore, in the face of a guilty verdict, only "slight" evidence is required to link a particular defendant to an established conspiracy. United States v. Hopkins, 518 F.2d 152 (3d Cir. 1975), citing Kates, 508 F.2d at 310.
The evidence introduced by the Government establishes the existence of a conspiracy to export guns and ammunition without a license lasting over several years and involving more than a dozen persons. The Government proved that the defendants, along with the co-conspirators, purchased several hundred firearms and nearly 100,000 rounds of ammunition at a cost in excess of $25,000. Other evidence, primarily circumstantial, shows patterns of overt, as well as clandestine, efforts to purchase weapons to be shipped to Northern Ireland for the use of the Provisional Irish Republican Army (IRA). The fact that much of the evidence is circumstantial does not affect its probative value, for circumstantial evidence is indistinguishable from direct evidence insofar as the jury's fact-finding function is concerned. United States v. Hamilton, 457 F.2d 95, 98 (3d Cir. 1972). "[Evidence] need not be inconsistent with every conclusion save that of guilt, provided it does establish a case from which the jury can find the defendant guilty beyond a reasonable doubt." Id., quoting United States v. Giuliano, 263 F.2d 582, 584 (3d Cir. 1959). Examining the evidence in a light most favorable to the Government, we can summarize it as follows:
Jeff Reh testified that he first met defendant Duffy in July of 1970 while they both worked as auto mechanics at Rudy Valentino Ford in Upper Darby, Pennsylvania. (N.T. 11-99). Duffy was emotionally involved in the struggle in Northern Ireland, and often became agitated when he read articles in the newspaper concerning the events in Northern Ireland. (N.T. 11-103; 11-117). Duffy, who knew that Reh was a member of the Army Reserves, asked Reh if he could obtain firearms, rocket launchers, hand grenades and ammunition for him that would be shipped to the people in Northern Ireland from New York. (N.T. 11-105; 11-107). According to Reh's testimony, Duffy said that money was no object because "they" had plenty of money. (N.T. 11-106). Duffy said that the money was raised at different dances and society-type affairs. (N.T. 11-106 -- 107). Although Duffy mentioned the IRA, he said he was not a member because a person had to live in Ireland to be a member. (N.T. 11-108). Reh told Duffy that he could not supply the weapons Duffy requested, but put Duffy in touch with one of his friends, Jack Nigro. (N.T. 11-109). In August of 1972, Reh saw Nigro in a shopping center and told him that a co-worker was interested in obtaining weapons for money. (N.T. 11-110 -- 111).
Nigro testified that as a result of the conversation with Reh, he received a call from Duffy on October 3, 1972. (N.T. 11-132). He had some discussion with Duffy concerning the possibility of Nigro's supplying "arms and stuff" on a large scale, but Duffy said he didn't want to discuss the matter on the phone. (N.T. 11-150 -- 152). Duffy said that the "stuff" would leave the country, and that once received, it would leave the country in a week or ten days. (N.T. 11-152). Duffy also told Nigro that funds were available, (N.T. 11-152), but that he did not have the final word on anything. (N.T. 11-153). After a subsequent conversation about two weeks later, Nigro and Duffy arranged to meet on October 20, 1972, outside of Duffy's place of employment. (N.T. 11-154 -- 155). At that time Duffy said they wanted Armalite rifles, Colt AR-15's, and rifles that could penetrate British flak vests and rocket launchers and mortars to use against the British tanks and armored cars. (N.T. 11-156). Nigro testified that Duffy said he was working for the IRA and cooperating with the Irish Northern Aid Committee in purchasing firearms. (N.T. 11-157). Duffy said that there were funds available from the Irish Northern Aid Committee to purchase arms and that he would speak to someone from New York whom he identified as "the General" about the firearms purchase. (N.T. 11-157). Nigro testified that Duffy said that he had purchased weapons in the past using identifications of recently deceased Irishmen. (N.T. 11-158). Duffy said they had previously used air freight, but were now running into problems with customs and were using ships out of New York to take the arms directly to Ireland. (N.T. 11-158). Duffy also said that they had to be very careful because Scotland Yard was cooperating with the FBI and "the heat was on." (N.T. 11-159).
John Rugg, the General Manager of Century Arms, Incorporated, a wholesale firearms dealer, testified that he sold Lee Enfield rifles and ball ammunition to Marjorie Palace, an unindicted co-conspirator who did business as a retail firearms dealer under the name of Palace Firearms. (N.T. 2-1-5; 2-192). Palace testified that she and her husband sold firearms from their home in Morrisville, Pennsylvania (N.T. 3-120), and that she sold firearms and ammunition to defendants Byrne and Cahalane (N.T. 3-139; 3-181), as well as to other co-conspirators. (N.T. 3-176; 3-180). She testified that her records showed that she sold 5 rifles to Byrne, 25 to Cahalane, 33 to Regan, and 140 to Conlon, making a total of 203 rifles purchased by the defendants and the co-conspirators from Palace Firearms. Rugg testified that Palace told him that she was selling these guns to collectors who preferred the rifles to be left in their original grease. (N.T. 2-131; 3-7). Rugg testified that rifles are put in grease for long periods of storage or for overseas shipment. (N.T. 2-131). Frank Moyer, an agent with the United States Treasury Department, Bureau of Alcohol, Tobacco and Firearms (ATF), who was qualified as a firearms expert, testified that wholesalers do not customarily pack firearms in grease for distribution to dealers in the United States, and that packing a firearm in grease would be appropriate for overseas shipment. (N.T. 9-185). Palace told Rugg that she was in a hurry for a delivery because Palace Firearms had been advertising a sale in a newspaper. (N.T. 3-4).
Robert Smith, a firearms dealer, testified that he sold armor-piercing ammunition to Palace. (N.T. 3-13). This ammunition was later sold by Palace to the co-conspirators. Palace told Smith that she wanted the armor-piercing ammunition because she had a contract with a police department in Trenton or Camden, New Jersey to supply ammunition for training purposes, for which a Federal grant had been issued. (N.T. 3-17 -- 18; 3-40). Fred Ecker, a lieutenant with the New Jersey State Police in the purchase and property control unit stationed in West Trenton, New Jersey, testified that the New Jersey State Police never used armor-piercing ammunition and never had a contract with Mrs. Palace to acquire such ammunition. (N.T. 3-45; 3-51). Dominic Limone, a training supervisor of the Police Academy of the Trenton, New Jersey State Police Department, testified that the police never used armor-piercing ammunition and never contracted with Mrs. Palace for that ammunition. (N.T. 3-52 -- 53). Richard Taylor, a sergeant in charge of the training bureau of Hamilton Township Police Department, which township is a suburb of Trenton, New Jersey, testified that the Police Department had never entered into a contract with Mrs. Palace to acquire armor-piercing ammunition. (N.T. 3-53 -- 54). Robert Plaag, a Captain of the Police Department of Ewing Township, which is adjacent to Trenton, New Jersey, testified that he had no dealings with Mrs. Palace concerning the supply of armor-piercing ammunition and that the Police Department never used armor-piercing ammunition. (N.T. 3-55 -- 56). Edward Hahn, a sergeant in charge of property management, equipment and supplies for the Camden, New Jersey Police Department, testified that the Camden Police Department has not ordered armor-piercing ammunition for the past ten years, he never observed any police department in the Camden area using armor-piercing ammunition, and that he had never heard of Mrs. Palace. (N.T. 3-95 -- 97).
Palace testified that she assumed the weapons purchased were going to be used by a gun club. (N.T. 4-56). Frank Moyer, the firearms expert, testified that the Armalite AR-180 is a semi-automatic weapon not used for sport and is particularly suitable for urban combat situations. (N.T. 9-174; 9-183). He testified that its effective accurate range is about 450 yards, that its maximum effective range is about 1800 yards, and that it will disintegrate a cinder block wall. (N.T. 9-178). He testified that the Lee Enfield Number 4 Mark I is a popular military weapon not used for hunting. (N.T. 9-182 -- 184).
Marie Hallowell, bookkeeper at Montgomery Loan Company, a firearms and sporting goods store, testified that Conlon, Byrne and Cahalane came into the store together on several occasions to purchase Armalite AR-180 weapons. (N.T. 2-79 -- 83). She testified that payment was made in cash. (N.T. 2-84). The firearms records of Montgomery Loan show that it sold 21 weapons to Byrne, 94 weapons to Cahalane, 15 to Regan, 35 to Conlon, and 10 to McNichol, making a total of 175 rifles purchased by the defendants and the co-conspirators from Montgomery Loan.
The Government proved that 378 weapons were purchased by the defendants and the co-conspirators. Of this total, 26 were purchased by Byrne, 119 by Cahalane, 175 by Conlon, 10 by McNichol and 48 by Regan.
The Government brought into the courtroom and introduced into evidence 137 weapons. (N.T. 6-121; 9-217). In addition, the Government introduced photographs of 27 weapons (N.T. 9-88), and produced evidence as to 16 additional weapons. (N.T. 9-81). Of these 180 weapons, 78 were British Enfield rifles, 91 were Armalite rifles, 7 were Plainfield Machine Works M-1 rifles and 4 were M-1903 rifles.
Victor Beavis, a principal officer of the Firearms Section of the Department of Industrial and Forensic Science located in Belfast, Northern Ireland, testified that the Royal Ulster Constabulary and the Royal Military Police send weapons to the Firearms Section which stores the weapons, examines them, and gives testimony in Court about them. (N.T. 6-81; 6-110). Beavis testified that all weapons are accompanied by a form which sets forth the serial number, caliber and type of weapon. (N.T. 6-86). These forms are examined by someone in the Department to insure that the information on the form corresponds with the information on the weapon.
Beavis testified that the serial numbers of the 137 guns introduced in evidence matched the serial numbers on the forms of the Department of Industrial and Forensic Science, and that all of the guns in evidence had been turned over to his Department by the Royal Irish Constabulary and the Royal Military Police in Northern Ireland. (N.T. 6-89; 9-27 -- 28; 9-40). He testified that all of these weapons had been received by his Department between May 1972 and May 1975. (N.T. 9-30 -- 38). Beavis also testified that the Department of Industrial and Forensic Science had received 27 additional guns for inspection which could not leave the country because they were the subject of court proceedings in Northern Ireland. (N.T. 9-90). At Beavis' instruction, a photographer in the Department of Industrial and Forensic Science took pictures of these weapons. (N.T. 9-90). These photographs were identified and introduced into evidence. (N.T. 9-94). Beavis also testified that the forms of the Department of Industrial and Forensic Science showed that sixteen additional guns were recovered and were disposed of through normal channels. (N.T. 9-81; 9-84).
John Casey testified that he had been a member and officer of the Irish Northern Aid Committee from 1970 to 1972. (N.T. 12-63 -- 64). He stated that when he joined the organization he understood its purpose to be the raising of funds to help the homeless people of Northern Ireland, but that in 1971, Martin Lyons, the leader of the Irish Northern Aid Committee, told him that the policy was being changed, and that the money could be used by the people in Northern Ireland to purchase weapons. (N.T. 12-66 -- 67). Casey testified that the purpose of the Irish Northern Aid Committee was the moving of guns and ammunition bound for Ireland, (N.T. 12-89) and testified to several occasions when he participated in crating guns and picking up guns for the Irish Northern Aid Committee. (N.T. 12-94 -- 98). He testified that guns were always referred to as "clothing" because they didn't want to discuss the movement of guns in the open. (N.T. 12-111 -- 112). Martin Lyons, who directed the pickup of guns (N.T. 12-112), discussed with Casey the purchase of guns in Connecticut in 1971 and the checking out of gun shops in upstate New York in 1972 (N.T. 12-105) with Frank Grady, the Chairman of an Irish Northern Aid Committee chapter. (N.T. 12-67). Lyons once told Casey that the "boys in Philly really came through for us" (N.T. 12-106), and once went to Philadelphia for a weekend with Grady. (N.T. 12-107). Lyons told Casey not to discuss anything over the phone because the Irish Northern Aid Committee phones were being tapped. (N.T. 12-102). Casey identified Cornelius Buckley, a friend of Lyons, as being present at the Irish Northern Aid Committee headquarters in the Bronx. (N.T. 12-67). Casey testified that Grady told him that Martin Lyons dressed up as a priest to get two trunks past customs and on board a ship bound for Ireland. (N.T. 12-91).
Michael Plunkett, an ATF agent, testified that he had contact in an undercover capacity with Eugene Marley, an unindicted co-conspirator, in Syracuse, New York in the spring of 1972. (N.T. 10-11 -- 12). Marley said he was active with the provisional wing of the IRA and that he was engaged in obtaining automatic weapons, explosives, rocket launchers and rockets for the IRA. (N.T. 10-12). He said that he was connected with an IRA group in Philadelphia (N.T. 10-13), that the organization was big in Philadelphia (N.T. 10-29), and that he would have to get the okay for the money from Philadelphia. (N.T. 10-29). Marley said that he made phone calls to his Philadelphia contact on Sundays. (N.T. 10-30). His telephone toll records show a pattern of Sunday calls to a Mr. Corry, to whose home Cahalane was traced by surveillance. (N.T. 14-134 -- 135). Marley arranged to have a truck available to pick up some weapons which were to be delivered on June 19, 1972 near Binghamton, New York, after which they would be taken to the Bronx in New York City. (N.T. 10-23 -- 24). As a result of surveillance, Richard Weller and Robert Hutt, ATF agents, observed Marley entering a hotel in Kirkwood, New York on June 20, 1972. (N.T. 10-51 -- 53). He met with two men who arrived in a van truck. (N.T. 10-52 -- 54). The men in the van were later stopped by Paul Starck, a New York state policeman, in response to a request by ATF agent Noel Haera, who participated in surveillance of the meeting in the motel. (N.T. 10-110 -- 111). Starck testified that the driver of the van produced a New York State driver's license in the name of Cornelius Buckley and a registration showing that the vehicle was owned by Martin Lyons. (N.T. 10-74). The other man in the van produced a driver's license in the name of Martin Lyons. (N.T. 10-74).
William Kavanaugh, an ATF agent acting in an undercover capacity representing that he had weapons for sale, testified that on July 8, 1972, he was at a meeting in the Bronx, New York City, attended by Ted Carroll, Martin Lyons, and Cornelius Buckley. (N.T. 12-32). Carroll had previously identified himself as Colonel Carroll of the IRA (N.T. 12-24) and Lyons and Buckley said they were members of the IRA. (N.T. 12-44). At that meeting they discussed with Kavanaugh the purchase from him of antitank rockets, grenade launchers, grenades and machine guns which they said were needed to knock out the armored cars used by the British. (N.T. 12-33 -- 34). Agent Kavanaugh was shown the cash needed for the purchase, which was $11,300. (N.T. 12-37). Lyons said that the weapons would be crated as plumbing material for shipment to Northern Ireland. (N.T. 12-39).
Thomas Clark, an ATF agent, testified that he observed Byrne and Cahalane entering Lyons' residence in the Bronx, New York on November 30, 1972 and on January 30, 1973. (N.T. 14-142 -- 152).
James Kelly, an ATF agent, testified that he observed Byrne and Cahalane leaving Cahalane's residence on January 27, 1972 at 8:30 p.m. and that Byrne removed several rifles and a canister used by the military to carry ammunition from the trunk of his car and put it in Cahalane's car. (N.T. 13-115 -- 118). Kelly also testified that on March 2, 1973, he observed Cahalane and Byrne at the Palaces' residence and place of business at 8:00 p.m. loading boxes of weapons into Cahalane's car. (N.T. 13-119 -- 126).
Thomas Lydon, an ATF agent, testified that on February 23, 1973, he saw cardboard cartons being unloaded from a car with New York license plates and taken inside Forney's Gun Shop in Penndel, Pennsylvania. (N.T. 14-90 -- 92). On February 26, 1973, he observed Donald Palace, Marjorie Palace's husband, put the same boxes into Palace's car. (N.T. 14-94). On March 2, 1973, he saw the same cartons being loaded at Palace's residence by Byrne and Cahalane into Cahalane's car. (N.T. 14-96 -- 97). On March 24, 1973, Agent Lydon observed, on the rear of a truck used by Cahalane in his business, cartons similar in appearance. (N.T. 14-103).
The defendants contend that the evidence, which we have summarized above, is insufficient for the jury to have found that there was an agreement of which they had knowledge and claim that the evidence established no more than "knowledge of shadowy dealings", which is insufficient to infer that Byrne and Cahalane were part of the conspiracy. United States v. Kates, supra, 508 F.2d at 312. However, we find that there was sufficient evidence from which the jury could reasonably find the ...