This case comes before the court on post trial motions by defendants who were convicted by a jury of offenses arising out of a felon's purchase of two handguns. Vincent "Tippy" Panetta
was found guilty of the unlawful receipt of firearms,
the making of false statements,
while Charles Diana was found guilty of conspiracy. Panetta contends his motion for severance should have been granted and evidence of another crime was improperly received. Diana asserts his double jeopardy rights were prejudiced, and both Panetta and Diana contend there was undue pre-trial delay. I find their arguments to be unavailing and therefore their motions must be denied.
Viewed in the light most favorable to the government,
the evidence adduced at trial established that on two occasions in August, 1974, Panetta, a felon, purchased a handgun from Diana, a federally licensed gun dealer, and that on each occasion false information was listed in the federal forms required to be completed incident to the sale. At the outset of trial the jury was read stipulations which eliminated the need for the government to offer proof on certain elements of the crimes charged. First, it was agreed that prior to the dates of the alleged transactions the two handguns in question had been shipped to Pennsylvania in interstate commerce. See Barrett v. United States, 423 U.S. 212, 96 S. Ct. 498, 46 L. Ed. 2d 450 (1976); Cf. Scarborough v. United States, 431 U.S. 563, 97 S. Ct. 1963, 52 L. Ed. 2d 582 (1977). Secondly, it was stipulated that on March 2, 1960, Panetta had been convicted in Pennsylvania of burglary, a crime punishable by imprisonment for a term exceeding one year, and that at all times between August 13 and 27, 1974, Panetta was consciously aware of his prior conviction.
The government's chief witness was Kathleen Colligon, who had been Panetta's girlfriend at the times in question. Colligon testified that sometime in August, 1974, Tippy Panetta, the defendant, requested that she lend him her driver's license for use as identification in buying a gun from Diana, who owned a gun shop located in the basement of his home in Abington, Pennsylvania. Although she had reservations about doing so, Colligon allowed Panetta to take her license. When Panetta returned from the gun shop, Colligon observed that he had a handgun with him. Panetta told Colligon that he had not used her driver's license to buy the gun, but she later saw a bag from Diana's shop in Panetta's car. Attached to the bag was a receipt made out in Colligon's name. Panetta explained this by saying Colligon's name was on the receipt only, and that she had nothing to worry about.
Sometime later that month, August, 1974, Colligon accompanied Panetta to Diana's shop where Panetta exchanged the gun he had purchased for a different model. While at the store Colligon observed an index card record of the original purchase and noted that it listed her name and an address at which she had formerly resided. When questioned, Panetta told her that that card had never been sent (to the appropriate authorities) and that the gun was not registered in her name. Diana, who was present, did not disagree with this explanation. Colligon watched Panetta fill out the application for the second gun using the name and address of his cousin, Vincent J. Panetta, Roslyn, Pennsylvania, who was not then present in the shop. Colligon stated that in August, 1974, she and Tippy Panetta resided at the Woodbridge Mews Apartments in Northeast Philadelphia, and that his driver's license contained the address of his sister, 112 Hermit Street, Philadelphia.
The various state and federal forms required to be completed in connection with the transfer of the firearms in question were introduced in evidence. Federal Form 4473 (Exhibit G-1) and the state "Record of Sale of Firearms" (G-3) for the first gun, a Charter Arms.38 special calibre revolver, serial 149842, were dated August 14, 1974, and August 19, 1974, respectively, and were made out to show that the buyer was Colligon. The 4473 also certified that the buyer had never been convicted of a crime punishable by imprisonment for a term exceeding one year. Colligon testified that she had never purchased a gun from Diana, that she never asked Panetta to purchase a gun for her, and that Panetta never told her he had purchased a gun for her. She examined the signatures of the purported buyer on G-1 and G-3 and stated they were not hers.
She also noted that her last name in these signatures had incorrectly been spelled "COLLGAN" and that the state form (G-3) listed her eye color as blue when in fact her eyes are brown.
The defendant's cousin, Vincent J. Panetta, testified that he had never purchased a gun from Diana and in fact had never even met Diana prior to December, 1975. Federal Form 4473 (G-2) and the state "Record of Sale of Firearm" form (G-5) for the second gun, a Smith and Wesson Model 49 revolver calibre.38 special, serial J206823, were dated August 26 and August 30, 1974, respectively.
The 4473 listed the buyer as "Vincent Panetta, 1364 Beachwood St., Roslyn, Pa., height: 5 feet 9 1/2 inch, weight: 180, date of birth: 7-20-30, driver's license number: 04986329," and certified that the buyer had never been convicted of a crime punishable by imprisonment for a term exceeding one year. Vincent J. Panetta examined these documents and testified that he had not signed them; that his address is 1364 Birchwood (not Beachwood); his date of birth is January 23, 1922 (not July 20, 1930); his height is 5 feet 6 inch (not 5 feet 9 inch); his weight is 155 pounds (not 180); and his driver's license number is 04402789 (not 04986329).
Special Agent Christopher Mazzella of the FBI testified that during an interview Diana stated he had sold the first gun to Colligon on August 14, 1974, and had personally witnessed her sign form 4473 (G-1). He submitted the form to the authorities, got no response, and several days later Colligon came back and picked up the gun. Sometime around August 26, 1974, Colligon returned this gun to Diana. He refunded her money and a few days thereafter sold it to someone else. With respect to the second gun, Diana stated that he had sold it to Vincent J. Panetta on August 26, 1974, and had witnessed him sign the 4473 (G-2). Special Agent Clifford Cormany testified to hearing Diana state that he had taken the descriptive information used in G-2 from the driver's license of Vincent J. Panetta.
At the agent's request, Diana turned over to Mazzella the 4473's for both guns (G-1 and G-2); he did not give Mazzella his copies of the state forms,
although he told Mazzella that he had provided the agent with all his records on the guns in question.
Handwriting exemplars taken from Panetta (G-9 (1-46) and G-12) and Diana (G-11 and G-11A) were introduced in evidence. Special Agent Philip E. Dennis, Jr., of the FBI, who took the exemplars from Panetta, testified that when the defendant was asked to write "Kathy Colligon" he spelled the last name "COLLGAN," the spelling found in the buyer's signature on G-1 and G-3. On the basis of a comparison with the known handwriting of Panetta and Diana, FBI Special Agent Luther Senter, a handwriting expert, testified that the signature of the seller on G-1 and G-5 was the genuine signature of Diana
and that the writer of the purchaser's signature on G-2, 3, 4, and 5 was the defendant, Tippy Panetta. With respect to the Kathy "COLLGAN" signature on the Form 4473 for the first gun (G-1), Senter stated that he did not find enough identifying characteristics to reach a definite conclusion that it had been written by Panetta. However, while Senter could not be "100% positive" of the writer of the COLLGAN signature on G-1 (as he had been about the writer of the questioned purchasers' signatures in G-2 through G-5) and therefore would not give an opinion, he did state that there were a number of similarities between it and the known handwriting of Panetta and a number of dissimilarities between it and the known handwriting of Colligon.
Testimony offered by the defendants hardly aided their cause. First they called to the stand Special Agent Keith Rossman of the Bureau of Alcohol, Tobacco and Firearms, who testified that Diana's firearms acquisition-disposition book contained two sets of interrogatories for the second gun. In addition to the one showing the gun's being received from a wholesaler on April 12, 1974, and sold to Vincent J. Panetta on August 26, 1974, there was a later entry showing this same gun being received from Vincent J. Panetta on March 17, 1974, and sold to one Joseph Allen on May 10, 1975. Rossman also stated that the government made no effort to contact Allen about this transaction. Whatever benefit might have inured to the defendants from this testimony was quickly dissipated when Rossman explained on cross examination that the acquisition-disposition book was kept in chronological order as firearms were received by Diana and that the entry showing receipt of the second gun on March 17, 1974, was grossly out of order, thus giving rise to the possible inference that this entry had been deliberately falsified to cover up the defendants' unlawful activities.
The only other defense witness was Carl Bear, a friend of Diana's who is a gun dealer and is also in the roofing and siding business. Bear testified that during late August, 1974, he was putting aluminum siding on Diana's house when he was introduced to Panetta and Colligon and accompanied them and Diana into the basement gun shop where the quartet talked generally about firearms. Bear stated that he was in the presence of Panetta and Colligon from the time they entered the gun shop until they left the premises and that he saw neither of them come or go with any firearms or sign any papers. To rebut Bear's testimony that no weapons had been transferred on the day Panetta and Colligon were at the gun shop, the government recalled Agent Rossman who related that Diana's own firearms acquisition-disposition book (G-10) showed that the first gun had been returned to him by Colligon on August 26, 1974.
Diana's initial double jeopardy argument is straightforward. Prior to the instant trial, he had been convicted of making false declarations to a grand jury concerning certain of the gun transactions at issue here. Diana asserts his prior conviction bars his being prosecuted under the present indictment.
The double jeopardy clause protects against successive prosecutions for the same offense. See Ashe v. Swenson, 397 U.S. 436, 450-51, 90 S. Ct. 1189, 1198, 25 L. Ed. 2d 469 (1970) (Brennan, J., concurring). In Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306 (1932), the Supreme Court explained that the "test to be applied to determine whether there are two offenses or only one is whether each [charge] requires proof of a fact which the other does not." See also Ashe, supra, 397 U.S. at 468, 90 S. Ct. at 1204 (Burger, C.J., dissenting); United States v. Cala, 521 F.2d 605, 607 (2d Cir. 1975). Under this "same evidence" standard it is clear that Diana was not prosecuted twice for the same offense. In order to convict Diana at his first trial, the government had to prove he knowingly made a false, material declaration before the grand jury. See United States v. Lardieri, 497 F.2d 317, 319-20, rev'd in part on other grounds on reh. before original panel, 506 F.2d 319 (3d Cir. 1974). The essence of the conspiracy charge, on the other hand, was the unlawful agreement between Diana and Panetta to transfer firearms from the former to the latter. In order to sustain a conviction of conspiracy it is necessary for the government to prove "an agreement among the conspirators to commit an offense attended by an act of one or more of the conspirators to effect the object of the conspiracy." United States v. DeCavalcante, 440 F.2d 1264, 1272 (3d Cir. 1971), quoting United States v. Falcone, 311 U.S. 205, 210, 61 S. Ct. 204, 207, 85 L. Ed. 128 (1940). While the false testimony giving rise to the perjury charge related to the same subject matter as the object of the conspiracy, the sale of firearms from Diana to Panetta, this does not make the offenses the same for double jeopardy purposes. In re Bonk, 527 F.2d 120, 126 (7th Cir. 1975); see Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946); United States v. Pappas, 445 F.2d 1194, 1198 (3d Cir.), cert. denied sub nom., Mischlich v. United States, 404 U.S. 984, 92 S. Ct. 449, 30 L. Ed. 2d 368 (1971). The "same transaction test" espoused by Justices Brennan, Marshall, and Douglas in Ashe, and under which Diana's reprosecution for conspiracy would arguably be barred, is not a constitutional imperative, United States v. Marshall, 513 F.2d 274, 276 (5th Cir. 1975), cert. denied, 423 U.S. 1048, 96 S. Ct. 773, 46 L. Ed. 2d 636 (1976), and has not been adopted as the law of this Circuit, United States ex rel. Brown v. Hendrick, 431 F.2d 436, 440 (3d Cir. 1970), cert. denied, 402 U.S. 976, 91 S. Ct. 1677, 29 L. Ed. 2d 141 (1971).
Diana next argues that the collateral estoppel aspect of the double jeopardy clause as enunciated in Ashe, supra, precludes relitigation here of an ultimate fact (whether Diana sold a gun to Panetta) which was necessarily decided in the perjury trial. In making this argument defendant has overlooked a crucial distinction between the present situation and that presented in Ashe : in Ashe the defendant had been acquitted in the prior proceeding whereas here Diana was convicted at his prior trial. As the Eighth Circuit noted in Moton v. Swenson, 488 F.2d 1060, 1062 (1973), cert. denied, 417 U.S. 957, 94 S. Ct. 3086, 41 L. Ed. 2d 675 (1974), "prior acquittal was the linchpin of the Ashe decision . . . ." See also Pulley v. Norvell, 431 F.2d 258 (6th Cir. 1970), cert. denied, 401 U.S. 916, 91 S. Ct. 896, 27 L. Ed. 2d 817 (1971), wherein the court observed:
It is significant that Ciucci v. Illinois, 356 U.S. 571, 78 S. Ct. 839, 2 L. Ed. 2d 983, decided the same day as Hoag v. New Jersey, 356 U.S. 464, 78 S. Ct. 829, 2 L. Ed. 2d 913, was not overruled by Ashe. In Ciucci a man was accused of killing his wife and two children by shooting them and leaving them in a burning building. He was tried in three separate trials and convicted each time of first degree murder. The Court affirmed the convictions upon the same basis as Hoag but with the factual distinction that in Ciucci the defendant was convicted at the earlier trial while the defendant in Hoag was acquitted. We construe Ashe to recognize a distinction between a case where the defendant is convicted in trial one of a crime against A and in trial two of a crime occurring the same time against B, and the situation where at the first trial one of the defendants is acquitted of a crime against A under circumstances that the defendant's presence or absence at the scene of the crime is resolved in favor of the accused.
Id. at 261. Indeed, in view of Diana's prior conviction, a logical application of the collateral estoppel doctrine would require that the issue of whether he had sold a firearm to Panetta be conclusively resolved against him in the present case. This, of course, would be the same as a partially directed verdict of guilty and clearly would infringe upon Diana's constitutionally protected right to a jury trial. See 2 C. Wright, Federal Practice and Procedure § 461, at 242 (1969), and cases cited therein.
UNDUE PRETRIAL DELAY
Both Panetta and Diana contend that their convictions should be set aside because of undue delay in bringing them to trial. In United States v. Marion, 404 U.S. 307, 314-15, 92 S. Ct. 455, 460, 30 L. Ed. 2d 468 (1971), the Supreme Court held that the sixth amendment right to a speedy trial does not protect against pre-accusation delay. "It is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment." Id. at 320, 92 S. Ct. at 463. However, while recognizing that "the applicable statute of limitations is the primary guarantee against bringing overly stale criminal charges," id. at 322, 92 S. Ct. at 464, the Marion court also held that the due process clause of the fifth amendment was available to protect an accused from pre-indictment delay "if it were shown at trial that [such delay] caused substantial prejudice to [the accused's] right to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused." Id. at 324, 92 S. Ct. at 465 (emphasis added).
As noted previously the events giving rise to this case took place in August of 1974, Diana was indicted for perjury on November 15, 1975, the instant indictment was returned on June 16, 1976, and trial of this case commenced on September 8, 1976.
It is necessary initially to determine at what point Diana became an "accused" in this case for purposes of activating his speedy trial rights. In United States v. DeTienne, 468 F.2d 151, 155 (7th Cir. 1972), cert. denied, 410 U.S. 911, 93 S. Ct. 974, 35 L. Ed. 2d 274 (1973), the defendants had been arrested on various unrelated charges prior to their indictment for attempted bank robbery. The court rejected the defendants' argument that their speedy trial rights with respect to the bank robbery indictment should be measured from the date of their arrests on the unrelated charges. "It would be absurd in the extreme if an arrest on one charge triggered the Sixth Amendment's speedy trial protection as to prosecutions for any other chargeable offenses." Id. at 155. However, the court went on to note:
Of course, if the crimes for which a defendant is ultimately prosecuted really only gild the charge underlying his initial arrest and the different accusatorial dates between them are not reasonably explicable, the initial arrest may well mark the speedy trial provisions applicability as to prosecution for all the interrelated offenses.