Petition — Cahalane v. United States

MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

October Term, 1977

No. Ki ¢ - 3

DANIEL CAHALANE and NEIL BYRNE,

Petitioners,

v.

UNITED STATES OF AMERICA,

Respondent.

JOINT PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT.

Tuomas Corias CARROLL,

Suite 326, Three Penn Center,

Philadelphia, PA 19102

(215) 568-5200

Attorney for Daniel Cahalane.

Jack LEVINE,

1427 Walnut Street,

Philadelphia, PA 19102

(215) 563-1388

Attorney for Neil Byrne.

international Printing Co., 711 So. 50th St., Phila., Pa. 19143 — Tel. (215) 727-8711

TABLE OF CONTENTS.

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CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED ........

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REASONS FOR GRANTING THE WRIT ...........0000 0000 sees

1. The Government Improperly Used the Compulsory

Registration Requirements of the Foreign Agents’

Registration Act of 1938 to Require Petitioners to

Disclose Their Affiliation With an Organization

Alleged to Be the “Hub” of the Conspiracy Charged

and the Trial Court Erred in Permitting the Govern-

ment to Introduce Such Registration Forms Into Evi-

dence Over Petitioners’ Fifth Amendment Objection

2. The Court of Appeals’ Denial of Petitioners Motions

to Dismiss the Government’s Appeals From Post-

Verdict Judgment of Acquittal Was Erroneous and

Inconsistent With This Court's Opinion in United

States v. Martin Linen Supply Co., — U.S.—......

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APPENDIX A—OPINION OF THE CouRT OF APPEALS ...........

AppENDIxX B—OPINION OF THE Districr CourT .............

Appenpix C—OrpER OF THE CourT OF APPEALS DENYING

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TABLE OF CITATIONS.

Cases: Page

Albertson v. Subversive Activities Control Board, 382 U. S. 70

ee le CR SOS LEE ky Tiel REN 9

Attorney General v. Irish Northern Aid Committee, 346 F.

Supp. 1384 (S. D. N. Y. 1972), affd. 465 F. 2d 1405,

ee ee es ne we eenaucedeees 6,7

Blau v. United States, 40 U.S. 150 ........... cee ewes )

Grosso v. United States, 390 U. S. 62 (1968) .............. 9

Haynes v. United States, 390 U. S. 85 (1968) .............. g

Marchetti v. United States, 390 U. S. 39 (1968) ............ 9

United States v. Byrne, 422 F. Supp. 147 (E. D. Pa. 1976) .. 1

United States v. Martin Linen Supply Co., — U. S. —, 51

i rk COED pecdcacnasc sa nwusdadsseeveren 2,10, 11

United States v. Wilson, 420 U. S. 332 (1975) .......... 10, 11, 12

Statutes:

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IN THE

Supreme Court of the United States

OcroseR TERM, 1977

No.

DANIEL CAHALANE and

NEIL BYRNE,

Petitioners

v.

UNITED STATES OF AMERICA,

Respondent

Petitioners pray that a Writ of Certiorari issue to re-

view the judgment of the United States Court of Appeals

for the Third Circuit entered in this action on August 11,

1977.

CITATIONS TO OPINIONS BELOW.

The Opinion of the United States District Court for

the Eastern District of Pennsylvania is printed in Ap-

pendix B hereto and is reported at 422 F. Supp. 147 (E.

D. Pa. 1976). The Opinion of the Court of Appeals for

the Third Circuit is not yet officially reported but is printed

in Appendix A hereto.

JURISDICTION.

The Opinion and Judgment of the Court of Appeals

was made and entered on August 11, 1977. Petitions for

Rehearing En Banc were timely filed and denied by the

Court of Appeals on September 21, 1977. By Order dated

October 3, 1977, the Court of Appeals stayed its mandate

pending the filing of this Petition. The jurisdiction of this

Court is invoked under 28 U. S. C. § 1254(1).

2 Joint Petition for Writ of Certiorari , Joint Petition for Writ of Certiorari 3

THE QUESTIONS PRESENTED.

1. WERE NOT PETITIONERS’ RESPECTIVE PRIVI-

LEGES AGAINST SELF-INCRIMINATION VIO-

LATED BY THE GOVERNMENT'S USE OF THE

FOREIGN AGENTS REGISTRATION ACT OF

1938, WHICH IS A REGISTRATION STATUTE

PROVIDING CRIMINAL PENALTIES FOR NON-

COMPLIANCE BUT WHICH CONTAINS NO EX-

PRESS PROHIBITION ON EVIDENTIARY USE

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED.

OF COMPELLED DISCLOSURES IN SUBSE- AMENDMENT V—CapiTaL Crimes: DouBLe JEOPARDY;

QUENT CRIMINAL PROSECUTIONS, TO COM- SELF-INCRIMINATION; DvuE PRoOcEss; JUST

PEL PETITIONERS TO DISCLOSE THEIR AF- COMPENSATION FOR PROPERTY

FILIATION WITH THE IRISH NORTHERN AID

COMMITTEE AT A TIME WHEN THE COMMIT-

TEE WAS THEN THE FOCUS OF A CRIMINAL

INVESTIGATION INTO UNLAWFUL MUNI-

TIONS EXPORTATION, AND DID NOT THE

LOWER COURT ERR IN PERMITTING THE

GOVERNMENT TO INTRODUCE INTO EVI-

DENCE THE REGISTRATION FORMS FILED BY

PETITIONERS AS PROOF OF THEIR RESPEC-

TIVE AFFILIATION WITH THE COMMITTEE

IN THIS PROSECUTION WHEREIN THE COM-

MITTEE WAS ALLEGED TO BE THE “HUB” OF

THE CONSPIRACY CHARGED IN THE INDICT-

MENT?

2. WAS NOT THE COURT OF APPEALS’ DENIAL

OF PETITIONERS’ MOTIONS TO DISMISS THE

GOVERNMENTS APPEALS FROM POST-VER-

DICT JUDGMENT OF ACQUITTAL ERRONE-

OUS AND INCONSISTENT WITH THIS COURT'S

OPINION IN UNITED STATES V. MARTIN

LINEN SUPPLY CO., — U. S. — (1977)?

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or in-

dictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any

person be subject for the same offense to be twice put in

jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be de-

prived of life, liberty, or property, without due process of

law; nor shall private property be taken for public use,

without just compensation.

4 Joint Petition for Writ of Certiorari

STATEMENT OF THE CASE.

Petitioners were tried in the United States District

Court for the Eastern District of Pennsylvania on a multi-

Count indictment charging, as here relevant, a Conspiracy

to export munitions without a license to Northern Ireland

(the “Conspiracy Count”) and substantive Counts charg-

ing specific events of aiding and abetting the unlicensed

exportation of munitions to Northern Ireland (the “Sub-

stantive Counts’ ).’

Jury verdicts of guilty were returned on June 21, 1976

as to both Petitioners on the Counts here relevant. Acting

on Petitioners’ post-trial motions, the District Court, on

October 12, 1976, granted Judgment of Acquittal on the

Substantive Counts, finding that the “Government failed

to produce one scintilla of evidence concerning the illegal

exportation of the weapons described in the indictment”

(422 F. Supp. at 160). On the Conspiracy Count, the

lower court denied Petitioners’ Motion and later sentenced

both Petitioners to a prison term.

Petitioners appealed to the United States Court of

Appeals for the Third Circuit from Judgment of Convic-

tion on the Conspiracy Count. The Government likewise

appealed from the post-verdict grant of Judgment of

Acquittal on the Substantive Counts. These appeals, and

others not directly pertinent, were consolidated and on

August 11, 1977 the Court of Appeals affirmed Petitioners’

conviction on the Conspiracy Count and reversed Judg-

ment of Acquittal on the Substantive Counts.

1. As here relevant, the Conspiracy Count charged as the

object of conspiracy a violation of regulations under 22 U. S. C.

§ 1934 and the Substantive Counts charged actual violations of

such regulations relating to the prior issuance of an export license

for the exportation of certain types of munitions.

Joint Petition for Writ of Certiorari 5

REASONS FOR GRANTING THE WRIT.

1. The Government Improperly Used the Compulsory

Registration Requirements of the Foreign Agents’

Registration Act of 1938 to Require Petitioners to

Disclose Their Affiliation With an Organization

Alleged to Be the “Hub” of the Conspiracy Charged

and the Trial Court Erred in Permitting the Govern-

ment to Introduce Such Registration Forms Into Evi-

dence Over Petitioners’ Fifth Amendment Objection.

The Theory of the Government’s case against Peti-

tioners was that Petitioners had purchased quantities of

weapons in the United States and, in a manner alleged in

the indictment as unknown to the grand jury, caused or

aided in the unlicensed exportation of these weapons to

the Provisional Irish Republican Army in Northern Ireland.

Petitioners did not dispute at trial that they had pur-

chased the munitions in question, nor is it disputed that

many of the munitions were later received in Northern

Ireland. Petitioners’ defense to the indictment was that

there was no evidence that the weapons were exported

from the United States in violation of applicable licensing

requirements nor that Petitioners had been knowing par-

ticipants in an enterprise to unlawfully export firearms.

As recited in the opinions of both the District Court

and Court of Appeals printed in the Appendix, the evi-

dence of a plan to export illegally, to the extent such evi-

dence was produced, was provided by the activities of

numerous unindicted co-conspirators whose common link

with Petitioners was their common membership in a New

York based organization known as the Irish Northern Aid

Committee, referred to as NORAID.

To establish that Petitioners were members of this

organization, the Government successfully offered, over

objection, registration statements filed by Petitioners pur-

6 Joint Petition for Writ of Certiorari

suant to the Foreign Agents’ Registration Act of 1938, 22

U. S. C. §611 et seq. (N. T. 14-34-14-51). The District

Court observed:

“The Government introduced short form registration

forms filed with the Department of Justice by the

three defendants on trial to show motive, intent and

means by which the conspiracy was effected, inas-

much as the documents evidenced that the defendants

were officers of the Irish Northern Aid Committee.”

(422 F. Supp. at 165)

At trial, the District Court conducted a hearing outside the

presence of the jury as to circumstances of how these forms

came to be filed with the Department of Justice. Frank

Durkan, Esquire testified for Petitioners (on Petitioners’

Motion to exclude the registration evidence) that he had

been counsel for the Irish Northern Aid Committee during

the relevant time period and was familiar with the circum-

stances under which the Department of Justice required

the Committee to register pursuant to the Foreign Agents’

Registration Act of 1938 (N. T. 13-23-13-315). After a

series of negotiations with the Department of Justice, the

Committee ultimately registered as a foreign agent “under

protest” (N. T. 13-294). Thereafter, litigation between

the Committee and Department of Justice concerning the

furnishing of membership lists and related documents,

which is reported at Attorney General v. Irish Northern

Aid Committee, 346 F. Supp. 1384 (S. D. N. Y. 1972),

aff d., 465 F. 2d 1405, cert. denied, 409 U. S. 1080 ( Mar-

shall, Douglas and Brennan, JJ. dissenting from denial of

Certiorari). During the progress of the litigation, the De-

partment of Justice further demanded that officials of the

various nationwide chapters of the Committee file “short

form registration forms” revealing their affiliation with the

Joint Petition for Writ of Certiorari 7

Committee. Negotiations concerning whether such forms

would be filed progressed from June, 1972 to June, 1973.

On December 18, 1972 this Court denied Certiorari in the

related litigation and ultimately numerous persons, includ-

ing Petitioners here, filed the short form registration forms

with the Department of Justice. Mr. Durkan testified that

“it was in direct compliance with this directive of the

Justice Department that all of these forms were filed.”

(N. T. 13-296).

At trial, the Government successfully offered into

evidence, over objection, the forms filed by Petitioners

for the following purpose:

Tue Prosecutor: Your Honor, these documents are short

form registration forms filed with the

Department of Justice by the defend-

ants Daniel Duffy, Neil Byrne and

Daniel Cahalane.

The documents evidence the fact that

they are officers of the Irish Northern

Aid Committee and that they engaged

in fund-raising activities. The docu-

ments are offered for three purposes:

To show motive, intent and means by

which the conspiracy was effected.

(N. T. 14-33).

Petitioners argued in the District Court, as argued

here, that the admission of these documents violated

Petitioners Fifth Amendment privilege against self-

incrimination and, in effect, resulted in an unconstitu-

tional application of the Foreign Agents’ Registration Act

of 1938.

It is interesting to note that during the litigation in

Attorney General v. Irish Northern Aid Committee, supra,

8 Joint Petition for Writ of Certiorari

the Government represented to the District Court (in

connection with its efforts to compel the Committee to

open its books and records for inspection) that:

“The Government will not send defendant's books

and records or copies to the grand jury.” (346 F.

Supp. at 1384)

This representation was in response to the Committee’s

argument that the Department of Jvstice’s interest in the

Committee was to further a grand jury investigation then

pending in Fort Worth, Texas and that compelled inspec-

tion of the records constituted a misuse of the Registration

Act to aid a criminal investigation (346 F. Supp. at 1388).

But in the instant matter the violation of Petitioners’

Fifth Amendment privilege is even more conspicuous. In

demanding the filing of short form registration forms, the

Department of Justice did not seek Committee records;

instead, it demanded personal disclosures by the affected

officers, including Petitioners.

As the record of the instant case makes clear, at the

time the Department of Justice was compelling Petitioners

to disclose their affiliation with the Committee, a criminal

investigation was in full progress and, indeed, as revealed

by Jenks Act materials furnished to Petitioners during

trial, a substantial portion of the case later to be presented

against Petitioners was already known to the Department

of Justice when it required the filing of the short form

registration forms.”

2. Moreover, in June 1973, Petitioners Cahalane and Byrne

were themselves subpoenaed before a Federal Grand Jury investi-

gating the activities which later became the subject matter of this

indictment. The Government subsequently proffered an immunity

Order as to Petitioner Cahalane. See uP S. v. Doe, In Re:

Cahalane, 361 F. Supp. 226 (E. D. Pa. 1973), aff'd. by Mem. Order,

485 F. 2d 678 (3rd Cir. 1973).

These subpoenas were issued in the aftermath of this Court's

denial of Certiorari in the aforementioned case.

Joint Petition for Writ of Certiorari 9

Further, this evidence was not merely incidental to

Petitioners prosecution. Their affiliation with the Com-

mittee was the principal justification offered by the Gov-

ernment for the introduction of numerous co-conspirator

statements concerning events happening throughout the

United States over several years.

Albertson v. Subversive Activities Control Board, 382

U. S. 70 (1965) held that orders requiring members of

the Communist Party to register as individual members

of the party violated their Fifth Amendment privilege

against self-incrimination, even though the Subversive

Activities Control Act contained a provision that the fact

of registration could not be received in evidence against

a registrant in any prosecution for violating any criminal

statute. Proceeding on the rationale that mere association

with the Communist Party presented a sufficient threat

of prosecution to support a claim of privilege (citing Blau

v. United States, 340 U. S. 159), this Court concluded that

personal registration could not be compelled.

In Marchetti v. United States, 390 U. S. 39 (1968),

Grosso v. United States, 390 U. S. 62 (1968) and Haynes

v. United States, 390 U. S. 85 (1968), this Court held

various registration statutes effectively violated potential

registrants privileges against self-incrimination where

registration presented a real hazard of self-incrimination.

In the present case, the Government used, or more

accurately misused, the registration provisions of the

Foreign Agents’ Registration Act to gather evidence for

ultimate use in a criminal prosecution. Truly, the Gov-

ernment’s misuse of this Act placed Petitioners in a posi-

tion which this Court should hold is protected by the

core interests of the Fifth Amendment. On one hand, if

Petitioners did not comply with the Justice Department's

“directive” to file short form registrations revealing their

10 Joint Petition for Writ of Certiorari

affiliation with the Irish Northern Aid Committee, they

were exposed to criminal prosecution under that Act for

failure to comply with its provisions (22 U. S. C. § 618).

On the other hand, compliance with the Act resulted in

the furnishing of information ultimately used to convict

Petitioners in the present prosecution.

The Foreign Agents Registration Act contains no

express prohibition on use of compelled disclosures in a

criminal prosecution. Thus, the Government successfully

used one statute to obtain information from Petitioners,

and another to prosecute them based, in part, on the

compelled disclosures.

It is urged that the Court grant certiorari to review

the significant constitutional issue presented.

2. The Court of Appeals’ Denial of Petitioners Motions to

Dismiss the Government's Appeals From Post-Verdict

Judgment of Acquittal Was Erroneous and Incon-

sistent With This Court’s Opinion in United States

v. Martin Linen Supply Co., — U. S. —.

Petitioners were convicted by the jury on both the

Conspiracy Count and the Substantive Counts. The lower

court denied all requested post-trial relief with respect to

the Conspiracy Count, but granted Petitioners’ motions

for judgment of acquittal on the Substantive Counts (422

F. Supp. 147). The Government appealed the granting

of judgment of acquittal and ultimately prevailed in the

Court of Appeals, resulting in Petitioners’ jury convictions

on the Substantive Counts being reinstated and the cause

being ordered remanded for sentencing on the Substantive

Counts (which has been stayed for pending the filing of

this Petition ).

Relying in principal part upon this Court's decision in

United States v. Wilson, 420 U. S. 332 (1975), the Court

Joint Petition for Writ of Certiorari 1]

of Appeals rejected Petitioners’ motion to dismiss the Gov-

ernment’s appeals, which motion had argued that a post-

verdict order granting judgment of acquittal was not ap-

pealable by the Government under 18 U. S. C. § 3731 and

was violative of the Double Jeopardy Clause.

In his concurring opinion in United States v. Martin

Linen Supply Co., — U. S. — , 51 L. Ed. 2d 642, 654

(1977), Mr. Justice Stevens correctly observed that Wil-

son, supra, is not authority for the proposition that the

Government may appeal from an acquittal. Beginning

with the proposition that “There is no statutory authority

for a government appeal from judgment of acquittal in a

criminal case” (51 L. Ed. 2d at 654), Mr. Justice Stevens

said in Footnote 1 to his opinion:

The contrary dictum in United States v. Wilson . . .

is not controlling for these reasons: First, the statutory

issue was not in dispute in any of those cases... .

Second . . . it is perfectly clear that the dictum is in-

correct. In view of our special responsibility for su-

pervising the proper functioning of the federal crim-

inal justice system, we should not hesitate to

correct a plain mistake involving a technical problem

of procedure when there has been no prejudicial re-

liance on that mistake. (Footnote 1 at 654)

Moreover, as Petitioners understand the opinion of

the Court in Martin Linen, authorized by Mr. Justice

Brennan, this Court no longer subscribes to the broad dic-

tum in Wilson that 18 U. S. C. § 3731 authorizes a govern-

mental appeal from an acquittal as long as appellate

relief for the Government will not subject criminal de-

fendants to another trial on the merits. Rather, as Peti-

tioners view Mr. Justice Brennan’s opinion, a governmental

appeal is not authorized by § 3731 if the acquittal by the

12 Joint Petition for Writ of Certiorari

Court is based on an analysis of the facts presented at trial

and a conclusion that, on the merits, the evidence was not

sufficient to allow a jury to convict.

There can be no question in the instant case that the

lower court's entry of judgment of acquittal was based on

a comprehensive analysis of the facts and a conclusion

that the “Government failed to produce one scintilla of

evidence concerning the illegal exportation of the weapons

described in the indictment” (422 F. Supp. at 160).

In seeking to dismiss the Government's appeals in the

present matter, Petitioners raised both the statutory issue

concerning the proper interpretation of § 3731 and a con-

stitutional claim under the Double Jeopardy Clause.

The instant case presents a proper procedural back-

ground for consideration of whether Wilson applies to a

post-verdict grant of judgment of acquittal entered on the

merits.

CONCLUSION.

For the foregoing reasons, petitioners respectfully re-

quest that a Writ of Certiorari be granted directed to the

Court of Appeals for the Third Circuit for review of the

decision of that Court in the instant matter.

Respectfully submitted,

Tuomas Co.as CARROLL,

Suite 326, Three Penn Center,

Philadelphia, Pa. 19102,

Attorney for Daniel Cahalane.

Jack LEVINE,

1427 Walnut Street,

Philadelphia, Pa. 19102,

Attorney for Neil Byrne.

APPENDIX “A”.

UNITED STATES COURT OF APPEALS

For THE THirRp CIRCUIT

Nos. 76-2461, 76-2473,

76-2511/ 12,

76-2565/66 and

77-1173

UNITED STATES OF AMERICA

v.

DANIEL CAHALANE, et al.

Daniel Cahalane, Appellant in 76-2461

Neil Byrne, Appellant in 76-2473

United States, Appellant in 76-2511/12

Daniel Cahalane, Appellant in 76-2565

Neil Byrne, Appellant in 76-2566

Neil Byrne, et al.,

Appellants in 77-1173

APPEAL FROM THE UNITED STATES DistTricr Court FOR THE

EASTERN DiIsTRICT OF PENNSYLVANIA

(D. C. Crim. No. 75-773)

Argued June 7, 1977

Before: Weis, Circuit Judge, CLArK,°® Associate Justice and

Garth, Circuit Judge.

* The Honorable Tom C. Clark, Associate Justice, Supreme

Court of the United States (Retired), sitting by designation, heard

the oral argument and participated in the decision in this case but

died before the opinion was written.

(Al)

A2 Appendix “A”

Robert W. Merkle, Esq. Thomas Colas Carroll, Esq.

Brandon Alvey, Esq. Suite 326,

David H. Hopkins, Esq. Three Penn Center

Daniel E. Fromstein, Esq. Philadelphia, Pa. 19102

United States Dept. of Attorney for Daniel

Justice Cahalane, Appellant in

Washington, D. C. 20530 76-2461, 76-2565, 77-1173,

Attorneys for the United and as Appellee in 76-2511

States, Appellee in 76-2461,

76-2473, 76-2565/66 and Jack J. Levine, Esq.

77-1173, and as Appellant 1427 Walnut Street

in 76-2511/12 Philadelphia, Pa. 19102

Attorney for Neil Byrne,

Appellant in 76-2473,

76-2566, 77-1173, and as

Appellee in 76-2512

OPINION OF THE COURT

(Filed August 11, 1977)

Wels, Circuit Judge.

Although many issues are raised in these appeals, the

principal contentions center on the sufficiency of the evi-

dence. A jury returned verdicts against the defendants on

charges of conspiracy and exporting arms and implements

of war without a license. We conclude that the prosecu-

tion produced enough evidence to sustain the verdicts and

the district court committed no reversible trial errors.

Therefore, the judgment of sentence on the conspiracy

count will be affirmed and the judgment of acquittal on the

substantive counts will be vacated.

Appendix “A” A3

A jury convicted defendants Neil Byrne and Daniel

Cahalane of both conspiracy and aiding and abetting the

exportation of arms and ammunition to Northern Ireland

without a license, in violation of 22 U.S. C. § 1934.’ After

hearing argument on post trial motions, the district court

entered judgment of acquittal on the substantive counts,

denied motions for a new trial, dismissed the challenges to

the conspiracy conviction, and sentenced the defendants

on that count. The defendants have appealed from the

judgment of sentence, and the Government has appealed

from the entry of acquittal as to the substantive counts

pursuant to 18 U. S. C. § 3731.’ In the latter case, the de-

fendants have cross-appealed, asking for a new trial in the

event that the judgment of acquittal is vacated.

The evidence in this lengthy trial is discussed in detail

in the district court’s opinion, United States v. Byrne, 422

F. Supp. 147 (E. D. Pa. 1976). We, therefore, will review

the evidence in a more general fashion, taking it, as we

must, in the light most favorable to the Government since

the jury verdict was against the defendants. Glasser v.

United States, 315 U. S. 60, 80 (1942); United States v.

Sica, — F. 2d — ( No. 75-2411, 3d Cir. July 7, 1977); United

States v. DeCavalcante, 440 F. 2d 1264 (3d Cir. 1971).

1. The trial court dismissed three counts and a portion uf the

conspiracy count. Two other defendants, Conlon and Regan, were

fugitives. The jury acquitted Daniel Duffy, another co-defendant,

of all charges.

2. The trial judge granted the judgment of acquittal after the

jury returned its guilty verdict. Therefore, a reversal of the judg-

ment of acquittal would result in reinstating the jury’s verdict

without again placing the defendants in jeopardy. Since the

Double Jeopardy Clause will not be violated, the government may

maintain its appeal under 18 U. S. C. $3731. United States v.

Wilson, 420 U. S. 332 (1975). See also United States v. Martin

Linen Supply Co., — U. S. —, 45 U. S. L. W. 4337 (U. S. April 4,

1977); United States v. Morrison, 429 U. S. 1 (1976); United States

v. Davis, — F. 2d — (No. 76-1935, 3d Cir. Mar. 24, 1977).

A4 Appendix “A”

Byrne, Cahalane and others in Pennsylvania and New

York purchased Armalite semi-automatic, Lee-Enfield and

Springfield rifles, M-1 carbines and armor piercing ammu-

nition during the period 1970-1973. Some of these

weapons were purchased packed in grease, a procedure

appropriate for overseas shipment. The Armalite rifle is

substantially the same as a U. S. Army M-16, capable of

piercing flak vests and steel helmets at substantial dis-

tances. It also came equipped with a grenade launcher

and a flash suppressor. The four named defendants (ex-

cluding Duffy) purchased about 360 weapons within one

year at a cost exceeding $30,000 and over 100,000 rounds

of ammunition. British authorities later seized approxi-

mately half of these weapons in Northern Ireland.

In addition to this activity in Eastern Pennsylvania,

evidence established that Cahalane and Byrne worked with

unindicted co-conspirators Martin Lyons and Francis

Grady who lived in New York City. All four were officers

of an organization known as the Irish Northern Aid Com-

mittee, NORAID, with Lyons acknowledged as a leader

and the others having lesser roles. NORAID headquarters

were located in the Bronx, where a local chapter functioned

under Lyons’ direction. NORAID engaged in various

fund-raising activities and was also the center of the arma-

ment purchase and transportation efforts. A former

NORAID member testified about his work in picking up,

crating and transporting weapons for the organization.

Byrne and Cahalane traveled to Lyons’ New York City

residence in November, 1972, and January, 1973. Tele-

phone records disclosed numerous calls between Lyons and

Byrne, Lyons and Cahalane, as well as to NORAID head-

quarters by both Byrne and Cahalane. Byrne also nego-

tiated with a Government informant for the purchase of

rifles, machine guns, armor piercing ammunition, rocket

Appendix “A” A5

launchers and mortars. He told the informant that the

arms would be shipped directly to Ireland from New York.

A government undercover agent testified that Lyons

and others attempted to purchase anti-tank rockets, gre-

nade launchers and automatic weapons. When the agent

asked how he got them to Ireland, “he [Lyons] told me

they crated it as plumbing stuff.”. Another NORAID mem-

ber told a Government witness that Lyons had once dis-

guised himself as a priest to get two trunks past customs

and aboard a ship bound for Ireland. The Government

also introduced evidence to show that neither Byrne,

Cahalane nor Duffy had a license to export weapons.

The district court found sufficient evidence from which

the Jury could reasonably find the existence of an agree-

ment to export weapons without a license and the defend-

ants’ knowledge and participation in the conspiracy. The

court, however, set aside the convictions on the substantive

counts on the ground that the Government failed to show

in what manner or by whom the specific guns described in

the indictment were exported.

I.

THE Consprracy Count

Stressing the legality and “openness” of their muni-

tions purchases, defendants contend that the Government

produced no evidence of intent to participate in a plan of

unlawful exportation. After a careful review of the rec-

ord, the district court summarized the Government’s case

as establishing 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 evidence

showed patterns of overt, as well as clandestine, efforts to

purchase weapons to be shipped to Northern Ireland for

the use of the IRA. According to defendant Duffy, “the

A6 Appendix “A”

heat was on,” and since “Scotland Yard is cooperating

with the FBI,” “they had to be very, very careful.” *

The Government proved that the guns were purchased

in this country and were traced to Northern Ireland. Ex-

portation in fact occurred, and the circumstantial evidence

was sufficient to allow the jury to find knowledge of an im-

proper purpose, United States v. Klein, 515 F. 2d 751 (3d

Cir. 1975), and an agreement to accomplish that result by

exporting without a license. We find no error in the dis-

trict court’s determination upholding the jury verdict.

Il.

THE SUBSTANTIVE COUNTS

Conceding arguendo, in light of the verdict, the pur-

chase of the arms and some manner of shipment to Ireland,

the defendants contend that the Government failed to prove

they aided and abetted an illegal exportation. The prose-

cution’s case relied on circumstantial evidence and the in-

ferences to be drawn from it. The issue, therefore, is

whether the verdict was supported by inferences which

could properly be drawn from the evidence. That the

jurors understood the issue is revealed by a question they

submitted to the trial judge during the course of delibera-

tions:

“If an individual fully, aware that the weapons he is

buying are ultimately going to end up in Northern

Ireland, believes that the weapons will leave the

United States in a legal manner is he guilty of a con-

spiracy to have the weapons leave the country

illegally?”

Although the inquiry was directed to the conspiracy count,

the jury obviously recognized the importance of the man-

3. Though Duffy was acquitted by the jury, his admissions do

not thereby Sessa deleted from the record.

Appendix “A” A7

ner of exportation. The district judge found that “the

Government failed to produce evidence sufficient for the

jury to find beyond a reasonable doubt that the offense of

exporting firearms without a license was committed by

anyone.” Hence, finding no proof of the underlying

crime’s commission, he ruled there could be no conviction

for aiding and abetting.

We do not agree that evidence of illegal exportation

was lacking. The prosecution’s case, though far from over-

whelming, was enough to require jury consideration. The

record establishes without doubt the defendants’ posses-

sion of the rifles and ammunition in this country and the

confiscation in Northern Ireland. According to the Gov-

ernment’s theory, Byrne and Cahalane worked with Lyons

and others in New York in purchasing arms to be smuggled

out of that city to Northern Ireland. Taking inferences

from the testimony in favor of the Government, as we are

required to do at this stage of the case, Glasser v. United

States, supra, United States v. Sica, supra, the jury could

find that Lyons, in fact, had smuggled arms aboard a ship

bound for Ireland, sometimes packing them as plumbing

supplies. Since Lyons engaged in such subterfuges, it

would be a reasonable inference that he, like the other de-

fendants, had no license to export. If the defendants and

other members of their group had been able to ship the

supplies through a licensed exporter, there would have

been no necessity for them to work with Lyons and his

organization, nor to fear the cooperation of the FBI and

Scotland Yard. Nor would it have been necessary for them

to transport bulky weapons by car, rather than having the

arms store ship them to an exporter.

In United States v. Grady, 544 F. 2d 598 (2d Cir.

1976), the defendant (an unindicted co-conspirator in the

case sub judice) was convicted of unlawful exportation

A8 Appendix “A”

under 22 U. S. C. § 1934 and 22 C. F. R. § 121-23 (1975).

There, also, defendants contested the sufficiency of the evi-

dence to prove the offense. The Court of Appeals for the

Second Circuit affirmed the conviction, stating:

“As to the lack of evidence claim, the short answer is

that the entire scheme of purchase from Jankowski

indicated that it was a clandestine undertaking to ex-

port firearms to Northern Ireland; from this the jury

could have inferred that those associated with it would

not seek an export license or use the services of a reg-

istered exporter, since either procedure would have in-

volved the recording of information as to the disposi-

tion of the weapons.” 544 F. 2d 598, 605 (2d Cir.

1976).

The court also recited evidence of the same event as in this

case—Lyons disguising himself as a priest to ship some

arms to Ireland. The evidence in the case sub judice is at

least as strong as that in Grady, if not more so. There is

more than evidence of clandestine activities—there are ad-

missions from other NORAID members with whom de-

fendants worked closely. United States v. Trowery, 542

F. 2d 623 (3d Cir. 1976).* Granting that the case is close,

nevertheless the Government produced sufficient evidence

to have the matter submitted to the jury. Since the ver-

dict had support in the record, the district court erred in

granting an acquittal.

4. Hearsay evidence admissible under the co-conspirator ex-

ception may, of course, be considered in the substantive counts as

well. 4 J. Wernstern, Eviwence § 801(d)(2)(E)[(01]. In United

a v. Mendoza, 473 F. 2d 692, 695 (5th Cir. 1972), the court

said:

“Nor is there any error in the court's refusal to exclude from

the jury’s consideration as to the substantive counts the evi-

dence admitted under the co-conspirator exception in the

hearsay rule. This exception is generally applicable to criminal

prosecutions and not limited to prosecutions for conspiracy.”

Appendix “A” AQ

Il.

ALLEGED AMENDMENT OF THE INDICTMENT

A month before trial, the Government wrote to the

court, naming additional co-conspirators “among others,

Eugene Marley, Martin Lyons, Francis Grady, Sean

Keenan and Cornelius Buckley.” The letter was inad-

vertently not sent to defense counsel, and they remained

unaware of it until approximately ten days before the

scheduled trial date of May 10, 1976. On May 5, the Gov-

ernment also submitted a list of twenty additional overt

acts. Defendants, at a pretrial conference on that date,

moved for a sixty day continuance, and after reviewing the

matter, the trial judge granted a two week delay.

Defendants do not question the trial judge’s action in

limiting the time of the continuance, but rather contend

that the additional overt acts amounted, in fact, to an

amendment of the indictment. They allege that these overt

acts, concerned with activities of Lyons and others in New

York, added the New York activities to the Philadelphia

operation described in the indictment. According to the

defense, the Government sought to add evidence developed

in its recently concluded Grady trial in New York.

The indictment charged that “the defendants would

provide rifles and ammunition to persons to the Grand

Jury unknown, to transport and export the aforesaid rifles

and ammunition to the Irish Republican Army in Northern

Ireland.” The list of additional overt acts and co-con-

spirators supplied by the Government before trial was ex-

planatory and descriptive rather than inconsistent or in

addition to the charges in the indictment. The lists there-

fore do not constitute “amendments” to the indictment.

See United States v. Goldstein, 502 F. 2d 526 (3d Cir.

1974).

Al0 Appendix “A”

The details were not at variance with the grand jury’s

understanding of the crime but constituted additional evi-

dence of the general charge. Since the defendants had

adequate time to make further investigation, prejudice is

absent. Indeed, from the record it appears that defense

counsel was not unaware of what had transpired in the

Grady trial. The trial judge properly ruled that there was

no amendment to the indictment, and his action in grant-

ing a continuance prevented any prejudice to defendants.

See United States v. Adamo, 534 F. 2d 31, 38-39 (3d Cir.

1976), cert. denied, — U. S. —, 97 S. Ct. 116 (1977).

IV.

REPEALER

Defendants argue that the repeal of 22 U.S. C. § 1934

and substitution of 22 U. S. C. § 2778 abates the prosecu-

tion in this case. 22 U. S. C. § 1934 (§ 414 of the Mutual

Security Act of 1954) was repealed in Pub. L. 94-329,

Title II, § 212(b)(1), June 30, 1976, 90 Stat. 745. The

repealer provides that a reference to § 414 shall be deemed

to be a reference to § 38 of the Arms Export Control Act,

22 U.S. C. § 2778, and references to licenses issued under

§ 38 of the Arms Export Control Act shall include licenses

under § 414. The repealer provides further.

“(2) All determinations, authorizations, regulations,

orders, contracts, agreements, and other actions is-

sued, undertaken, or entered into under section 414

of the Mutual Security Act of 1954 shall continue in

full force and effect until modified, revoked, or super-

seded by appropriate authority.”

Defendants contend that the preceding section does

not include “prosecutions,” and moreover, the instant

cases were based on violations of the regulations, rather

Appendix “A” All

than the statute itself. We do not pass upon the Govern-

ment’s position that the regulations, rather than the statute,

are controlling, although the regulations continued in

effect. See Executive Order No. 11940, reprinted as a

note to 50 U. S. C. App. § 2403. Moreover, there is

evidence of congressional intent to continue limitation on

arms exportation. See generally, 1976 U. S. Code Cong.

and Adm. News, page 1378. However, in our view the

General Savings Clause, 1 U. S. C. § 109, governs this case:

“The repeal of any statute shall not have the effect to

release or extinguish any penalty, forfeiture, or liabil-

ity incurred under such statute, unless the repealing

Act shall so expressly provide, and such statute shall

be treated as still remaining in force for the purpose

of sustaining any proper action or prosecution... .”

See Warden v. Marrero, 417 U. S. 653 (1974). Here, the

repealing statute does not express any intention to ex-

tinguish liability. To the contrary, it leads to the opposite

conclusion. Accordingly, we reject the defendants’ con-

tention.

V.

TRIAL ERRORS

The defendants urge a number of trial rulings as

reversible error:

1. The trial court erred in unduly restricting cross-

examination of a prosecution witness, Nigro, and

in declining to instruct the jury in evaluating his

testimony.

Rule 608(b), Federal Rules of Evidence governs the

scope of cross-examination, granting the trial court wide

discretion in allowing testimony about actions of a witness

Al2 Appendix “A”

affecting his character for untruthfulness. We find no

abuse of that discretion. The instruction which defense

counsel submitted to the trial judge was untimely. United

States v. Tourine, 428 F. 2d 865 (2d Cir. 1970), cert.

denied, 400 U. S. 1020 (1971); United States v. Ashton,

399 F. Supp. 1192 (W. D. Pa. 1974), aff'd, 521 F. 2d 1399

(3d Cir. 1975), cert. denied, 424 U. S. 942 (1976). More-

over, the charge did caution the jury about the reliability

of paid informer’s testimony. Nigro’s evidence obviously

fell in that category.

2. The prosecutor’s closing remarks were inflamma-

tory.

The trial judge did not err in rejecting this conten-

tion. United States v. Homer, 545 F. 2d 864, 867-868

(3d Cir. 1976).

3. The trial court improperly admitted the testimony

of co-conspirators.

The district court relied upon United States v. Trow-

ery, supra, and United States v. Trotter, 529 F. 2d 806

(3d Cir. 1976). We find no error in the admission of the

challenged statements.

4. The court erred in refusing to exclude the tran-

script of a telephone conversation recorded by

the Government informant Nigro.

The court’s ruling was within the discretion of the

trial judge. We find no reversible error in admitting the

transcript, despite the witness’ earlier destruction of the

magnetic tape.

5. Other evidentiary rulings cumulatively deprived

the defendants of a fair trial.

Appendix “A” Al3

Our review of the record does not substantiate this

allegation and we find no error.

6. The presence of many rifles in the courtroom preju-

diced defendants.

The guns were proper exhibits, and, in view of the

nature of the case, could hardly be considered shocking or

emotional. Moreover, it is well known that continued

exposure to even emotion-arousing objects tends to reduce

their effect. This was a lengthy trial, and the likelihood

that the presence of the exhibits throughout it had any

prejudicial effect is extremely speculative.

7. The court erred in refusing to marshall the evi-

dence.

The defendants’ complaint that the trial judge failed

to marshall the evidence is somewhat unusual. A judge

is free, if he chooses, to review the evidence providing he

does so in a fair and impartial manner. United States v.

Gaines, 450 F. 2d 186 (3d Cir. 1971), cert. denied, 405

U. S. 927 (1972); cf. Ayoub v. Spencer, 550 F. 2d 164 (3d

Cir. 1977). However, it is not obligatory that he review

the testimony, and, in the opinion of many trial lawyers

and judges, it is better left undone. Judge Learned Hand

wrote:

“{I]n this country not only has the exercise of the

power [to marshall the evidence] never been obliga-

tory, but the power itself has been somewhat suspect.

It is strange to hear an accused complaining of such

a failure; we may be assured that, if the power had

been used, the complaints would have been louder,

and almost certainly better grounded.” United States

v. Cohen, 145 F. 2d 82, 92-93 (2d Cir. 1944), cert.

denied, 323 U. S. 799 (1945).

Al4 Appendix “A”

As the district judge in this case remarked: “The mar-

shalling of the evidence is what counsel had done in sum-

mation to the jury.” Extensive comment on the evidence

by the trial judge usually leads to complaints of mistake,

undue emphasis on one phase or another, or subtle indica-

tion to the jury of the judge’s view on guilt or innocence.

We find no merit in this contention of the defendants.

8. The court erred in failing to charge on multiple

conspiracies.

We agree with the trial judge that this was not error

since there simply was no evidence of anything other than

one large conspiracy.

In summary, we find no reversible trial error.

VI.

DEFENDANTs Cross-APPEALS

Finally, we must dispose of a somewhat complicated

procedural matter. On October 12, 1976, the district court

ruled on various post-trial motions as follows: “[I]t is

hereby OrperED and DecreeEp as follows:

1. The defendants’ motion for arrest of judgment

is DENIED;

2. The defendants’ motion for judgment of ac-

quittal on Counts 4, 5, 9, 11, 13, 15 and 16 is GRANTED;

3. The defendants’ motion for judgment of ac-

quittal on Count | is DeNtep;

4. The defendants’ motion for a new trial is

DENIED;

5. The defendants’ motion to inspect the grand

jury minutes is DENtED.”

OOO eooeoererererererereooororeeeeeee;

Appendix “A” Al5

The court sentenced defendants on the conspiracy

count on October 27, 1976, and defendants appealed

within the required ten days. Fed. R. App. P. 4. The

Government, granted thirty days to appeal, did not file

its appeal from the judgment of acquittal until November

10, 1976. On November 19, 1976, defendants filed a

cross-appeal to the Government’s case, and petitioned the

district court for an extension of time because of “excus-

able neglect” under Fed. R. App. P. 4. The district court

denied any extension of time, and defendants have also

appealed this order.

Defendants argued that if we vacate the judgment of

acquittal on the substantive counts, we should then pro-

ceed to review the district court’s denial of their motion

for a new trial ° even though they have not been sentenced

on the substantive charges. We conclude that we do not

have jurisdiction to review their contentions. Defendants

do not have the right to cross-appeal when the Govern-

ment appeals under 18 U. S. C. § 3731, see United States

v. Long, 534 F. 2d 1097, 1101 (3d Cir. 1976); United

States v. West, 453 F. 2d 1351, 1353 n. 3 (3d Cir. 1972);

see also United States v. Olt, 492 F. 2d 910 (6th Cir. 1974);

United States v. Halbert, 436 F. 2d 1226 (9th Cir. 1970),

and the order they seek to appeal is clearly interlocutory.

Berman v. United States, 302 U. S. 211 (1937); United

States v. Mathews, 462 F. 2d 182 (3d Cir.), cert. denied,

409 U. S. 896 (1972); United States v. Rizzo, 439 F. 2d

694 (3d Cir. 1971). Hence, the cross-appeals must be

dismissed.

In the absence of a statutory right to appeal, the de-

fendant’s contentions can be considered by the reviewing

5. The district court’s order does not clearly spell out whether

its denial of defendants’ motion for new trial applied only to the

conspiracy count or to the substantive counts also. For purposes

of this appeal, we assume the order applied to all counts.

Al6 Appendix “A”

court under the general rule that an appellee may rely on

any ground in support of the judgment. United States v.

Moody, 485 F. 2d 531, 534 (3d Cir. 1973); see also United

States v. Finn, 502 F. 2d 938, 940 (7th Cir. 1974); United

States v. Halbert, supra. This situation is not presented

in the case sub judice: Defendants do not urge different

grounds for affirming the judgment of acquittal, rather

they seek reversal of the order denying a new trial. Nor

may we review defendants’ contentions under an analogy

to the procedure employed in civil cases before the 1963

amendments to Fed. R. Civ. P. 50(c), see Montgomery

Ward & Co. v. Duncan, 311 U. S. 243 (1940); Zimmer-

man v. Mathews Trucking Corp., 205 F. 2d 837 (8th Cir.

1953), for these are criminal, not civil appeals.

Moreover, there are practical reasons for refusing to

address defendants’ contentions at this time. First, the

defendants may, after sentencing, decide not to appeal.

Second, if the district court imposes concurrent sentences,

review may be declined under the concurrent sentence

doctrine. Benton v. Maryland, 395 U. S. 784 (1969);

Hirabayashi v. United States, 320 U. S. 81 (1943). If we

were to find reversible error and order a new trial, that

trial would have to proceed even if the district court had

intended to impose concurrent sentences—a result of no

gain to defendants, but wasteful of both judicial and de-

fendants’ resources.

The judgment of the district court will be affirmed as

to the conviction on the conspiracy count. The judgment

of acquittal on the substantive counts: Counts 4, 5, 9, 11,

13, 15, and 16, will be vacated and the matter will be re-

manded to the district court for further proceedings. The

cross-appeals of the defendants at Nos. 76-2565 and 76-

2566 will be dismissed.

Appendix “B” Al7

APPENDIX “B”.

UNITED STATES of America

v.

Neil BYRNE et al.

Crim. No. 75-773.

United States District Court,

E. D. Pennsylvania.

Oct. 12, 1976.

David H. Hopkins, Robert W. Merkle, Jr., Dept. of

Justice, Crim. Div., Washington, D. C., for plaintiff.

Jack J. Levine, Philadelphia, Pa., for Neil Byrne.

Kenneth E. Smith, Burlington, N. J., for Daniel

Cahalane.

Thomas Colas Carroll, Philadelphia, Pa., for Daniel

Memorandum and Order.

Brovenick, District Judge.

Presently before the Court are the motions of defend-

ants Neil Byrne and Daniel Cahalane for Arrest of Judg-

ment 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

A18 Appendix “B”

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 » ‘ith conspiracy to export firearms without

a license; defer. ‘ant Byrne also was found guilty on Counts

5 and 13 whici charged him with exporting firearms with-

out a license an . aiding and abetting; defendant Cahalane

also was found ; ailty on Counts 4, 9, 11, 15 and 16 charg-

ing him with exporting firearms without a license and aid-

ing 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 abe*ting 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

1. Also named as defendants in the Indictment were Vincent

Conlon and Thomas Regan, who are fugitives and were therefore

not on trial at the time.

2. All three defendants were also charged with acting as an

agent of a foreign government without prior notification to the

Secretary of State in violation of 18 U. S$. C. §951. The Court

granted the defendants’ motion for judgment of acquittal at the

= of the government's case as to the three Counts charging this

offense.

3. 22 U. S. C. § 1934 provides in pertinent part:

(a) The President is authorized to control, in furtherance

of world peace and the security and foreign policy of the

United States, the export and import of arms, ammunition, and

implements of war . . . other than by a United States Govern-

ment agency. The President is authorized to designate those

Appendix “B” Al9

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 re-

lating 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, 62 S. Ct. 457, 86 L. Ed. 680 (1942); United

3. (Cont'd. )

articles which shall be considered as arms, ammunition, and

implements of war . . . for the purposes of this section.

(b) As prescribed in regulations issued under this section,

every person who engages in the business of manufacturing,

exporting, or importing any arms, ammunition, or implements

of war, including technical data relating thereto, designated

by the President under subsection (a) of this section shall

register with the United States Government agency charged

with the administration of this section, and, in addition, shall

pay a registration fee which shall be prescribed by such

regulations.

(c) Any person who willfully violates any provision of

this section or any rule or regulation issued under this section,

or who willfully, in a registration or license application, makes

any untrue statement of a material fact or omits to state a

material fact required to be stated therein or necessary to

make the statements therein not misleading, shall upon con-

viction be fined not more than $25,000 or imprisoned not more

than two years, or both.

4. 22 C. F. R. Section 127.01 provides in pertinent part:

It shall be unlawful for any »rson to export or attempt

to export from the United States any of those articles on the

U. S. Munitions List without first having obtained a license

therefor, unless written approval was obtained from the De-

partment of State or an exemption from this requirement is

authorized by this subchapter.

All of the weapons charged in the indictment, which are identified

by serial number, are on the United States Munitions List.

A20 Appendix “B”

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, 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 evi-

dence 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 in-

formal, 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

Appendix “B” AQ]

inferred from circumstantial evidence. The Govern-

ment need not show that the defendant participated

in every transaction or even that he knew the iden-

tities 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 con-

spiracy the evidence must be sufficient for the jury to rea-

sonably 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 govern-

ment 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 associ-

ates himself with an ongoing conspiracy may become

a party to that agreement, either expressly by agree-

ment 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 pur-

pose when he performs acts which further that illicit

purpose. Direct Sales, supra; United States v. Sa-

lerno, 485 F. 2d 260, 263 (3d Cir. 1973); United

A22 Appendix “B”

States v. American Radiator & Standard Sanitary Cor-

poration, 433 F. 2d 174 (3d Cir. 1970). By acting in

furtherance of the co-conspirators’ goals with know]-

edge of the improper purpose, the jury can reason-

ably 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 in-

dictment, 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 estab-

lishes 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 Govern-

ment proved that the defendants, along with the co-con-

spirators, 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 af-

5. See also United States v. Johnson, 513 F. 2d 819, 823 (2d

Cir. 1975).

Appendix “B” A23

fect its probative value, for circumstantial evidence is in-

distinguishable from direct evidence insofar as the jury’s

fact-finding function is concerned. United States v. Ham-

ilton, 457 F. 2d 95, 98 (3d Cir. 1972). “[E]vidence 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 sum-

marize 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 men-

tioned 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 weap-

ons 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).

A24 Appendix “B”

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 con-

cerning 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 cooperat-

ing 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 di-

rectly 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).

Appendix “B” A25

At this meeting, they agreed that Nigro should meet

“the General” from New York. (N. T. 11-159). Duffy

called Nigro the following week, saying that he had ar-

ranged a meeting for November 6, 1972 between Nigro

and a man from Warminster. (N. T. 11-159). At that

meeting, Duffy introduced defendant Byrne as a very

high ranking member of the IRA. (N. T. 11-163). Byrne

said that the arms he wished to purchase were for his

homeland and would be shipped directly to Ireland

through New York. (N. T. 11-165; 11-170). When dis-

cussing payment for the arms, Byrne said that he had

$50,000 earmarked for arms purchases which could be pro-

cured from New York on a day’s notice. (N. T. 11-169).

Nigro’s last communication with Duffy was several weeks

after this meeting when Duffy called to ask Nigro why he

hadn't gotten back to him. (N. T. 11-173). Nigro said

that he hadn’t located anything yet and would call him.

(N. T. 11-173).

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 frora 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 had 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

A26 Appendix “B”

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 Depart-

ment, Bureau of Alcohol, Tobacco and Firearms (ATF),

who was qualified as a firearms expert, testified that whole-

salers do not customarily pack firearms in grease for dis-

tribution 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

arnmunition was later sold by Palace to the co-conspirators.

Palace told Smith that she wanted the armor-piercing am-

munition because she had a contract with a police depart-

ment in Trenton or Camden, New Jersey to supply am-

munition 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.

ee ee

Appendix “B” A27

Palace to acquire armor-piercing ammunition. (N. T.

3-53—54 ). Robert Plaag, a Captain of the Police Depart-

ment 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 ammuni-

tion 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 Depart-

ment, 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 pur-

chased were going to be used by a gun club. (N. T. 4-56).

Frank Moyer, the firearms expert, testified that the Arma-

lite 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 accu-

rate 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 to-

gether ou 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

A28 Appendix “B”

the defendants and the co-conspirators from Montgomery

Loan.

The Government proved that 378 weapons were pur-

chased 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 in-

troduced into evidence 137 weapons. (N. T. 6-121;

9-217). In addition, the Government introduced photo-

graphs of 27 weapons (N. T. 9-88), and produced evi-

dence 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 Sec-

tion 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 Constab-

ulary 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

ie to

em eA Me A

Appendix “B” A29

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 De-

partment 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 Depart-

ment of Industrial and Forensic Science showed that six-

teen additional guns were recovered and were disposed

of through normal channels. (N. T. 9-81; 9-84).

Raymond Hubbert, an ATF agent, testified that on

the basis of the weapons’ purchase records in evidence and

Mr. Beavis’ testimony, he prepared summary charts of the

weapons purchased and the weapons received in Northern

Ireland. (N. T. 14-164). One chart showed that all of

the weapons that were in evidence or had been identified

by Mr. Beavis were purchased by a defendant or co-

conspirator and recovered in Northern Ireland. (N. T.

14-164). This chart showed that of the total 180 weapons

that had been received by authorities in Northern Ireland

and turned over to the Department of Industrial and

Forensic Science, 11 had been purchased by defendant

Byrne, 40 had been purchased by defendant Cahalane,

90 by co-conspirator Conlon, 8 by McNichol and 31 by

Regan. Another chart showed that certain weapons that

were purchased together were received together by

Northern Irish authorities. (N. T. 14-170).

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 rais-

A30 Appendix “B” °

ing of funds to help the homeless people of Northern Ire-

land, 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 crat-

ing guns and picking up guns for the Irish Northern Aid

Committee. (N. T. 12-98). 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 week-

end 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

Appendix “B” A31

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 Phila-

delphia (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 under-

cover 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

A32 Appendix “B”

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 pur-

chase, 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 ob-

served Byrne and Cahalane entering Lyons’ residence in

the Bronx, New York on November 30, 1972 and on Jan-

uary 30, 1973. (N. T. 14-142—152).

James Kelly, an ATF agent, testified that he observed

Byrne and Cahalane leaving Cahalane’s residence on Jan-

uary 27, 1972 at 8:30 p.m. and that Byrne removed several

rifles and a canister used by the military to carry ammuni-

tion 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’ resi-

dence 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 Feb-

ruary 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, car-

tons similar in appearance. (N. T. 14-103).

Appendix “B” A33

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 shadowy dealings”, which is insuf-

ficient 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 existence of

an agreement to export weapons without a license and the

defendants’ knowledge and participation in the conspiracy.

Sufficiency of Evidence as to Substantive Counts.

The defendants also claim that the evidence is insuf-

ficient to support their conviction on the substantive

counts of aiding and abetting the exportation of firearms

without a license. As stated before, it was the Govern-

ment’s theory that even though it produced no evidence

concerning the manner of export,° the evidence is sufficient

for the jury to find beyond a reasonable doubt that the

firearms were exported without a license and that the de-

fendants knowingly aided and abetted the illegal transpor-

tation.

In order to convict a defendant of aiding and abetting

the commission of a crime, the Government must prove

two essential elements. First, that the substantive crime

has been committed, United States v. Tornabene, 222 F.

2d 875, 878 (3d Cir. 1955), and, second, that the defend-

ant charged with aiding and abetting had knowledge of

the commission of the substantive offense and acted with

6. Count 4 of the indictment, for example, charges that “in a

manner to the Grand Jury unknown”, Cahalane “knowingly, will-

7 and unlawfully transported and caused to be transported” the

earms.

A34 Appendix “B”

the intent to facilitate the commission of such offense.

United States v. Cades, 495 F. 2d 1166, 1167-1168 (3d

Cir. 1974); United States v. Docherty, 468 F. 2d 989, 992

(2d Cir. 1972). See United States v. Bryan, 483 F. 2d

88 (3d Cir. 1973); United States v. Provenzano, 334 F. 2d

678 (3d Cir.), cert. denied 379 U. S. 947, 85 S. Ct. 440,

13 L. Ed. 2d 544 (1964). The defendants contend that

the Government produced insufficient evidence to prove

either of these two essential elements.

Although we have already found that there is suf-

ficient evidence in the record for the jury to reasonably

find Byrne and Cahalane guilty of the conspiracy count,

we now find that even when looking at the evidence in a

light most favorable to the Government, the Government

failed to produce evidence sufficient for the jury to find

beyond a reasonable doubt that the offense of exporting

firearms without a license was committed by anyone. As

heretofore discussed, an essential element of the crime of

aiding and abetting is proof that the offense was committed

by someone.

As stated by the Supreme Court in Pinkerton v. United

States, 328 U. S. 640, 66 S. Ct. 1180, 1182, 90 L. Ed. 1489

(1946):

It has been long and consistently recognized by the

Court that the commission of the substantive offense

and a conspiracy to commit it are separate and distinct

offenses. ... The agreement to do an unlawful act is

even then distinct from the doing of the act. [Foot-

notes omitted}.

Our Third Circuit in United States v. Papas, 445 F. 2d

1194 (3d Cir. 1971) said:

Pinkerton v. United States makes clear that the crime

of conspiracy is separate and distinct from a related

substantive crime. (Citations omitted).

Appendix “B” A35

In United States v. Sall, 116 F. 2d 745 (3d Cir. 1940),

which held that although the evidence in the case was

sufficient to support a conspiracy conviction, it was not

sufficient to support a conviction on the substantive count,

Judge Maris pointed out:

This is for the reason that the gist of the crime

charged by the conspiracy count was his agreement

or combination with the other defendants to effect

the unlawful object of the conspiracy and not the

commission of the overt acts which followed.

In the present case the circumstantial evidence which

we have recited was undoubtedly sufficient to sup-

port the inference drawn by the jury that the defend-

ant Sall was a member of the conspiracy .... We do

not think, however, that the government's evidence

was sufficient to support the inference that the de-

fendant Sall knowingly and with criminal intent par-

ticipated . . . (in the substantive offense). The evi-

dence does not exclude the possible inference that . . .

(the substantive offense was committed) by others

without the knowledge of the defendant Sall. 116

F. 2d at 747-748.

We have no question that the Government produced

ample proof that Byrne purchased the 11 M-1903 rifles

described in Count 5 of the indictment from Montgomery

Loan Company on January 14, 1972 and that the one rifle

he is charged in Count 5 with exporting without a license

was turned over to the Department of Industrial and

Forensic Science by either the Royal Ulster Constabulary

or the Royal Military Police in Belfast, Northern Ireland

on April 29, 1974. However, the record is devoid of any

evidence as to how or who transported that weapon to

Northern Ireland. Likewise, the Government produced

A36 Appendix “B”

ample proof that on March 21, 1972, Byrne purchased 10

Armalite AR-180 auto-loading rifles specified in Count 13

of the indictment from Montgomery Loan Company and

that the 7 rifles he is charged in Count 13 with exporting

to Northern Ireland without a license were turned over to

the Department of Industrial and Forensic Science between

April 3, 1973 and October 18, 1974. However, as to those

7 weapons, no evidence was produced concerning the

manner or by whom they were exported.

The same is true of the Counts charging Cahalane

with transporting weapons to Northern Ireland without a

license. In Count 4 he is charged with purchasing 5

Armalite AR-180 auto-loading rifles and 4 M-1903 rifles

on January 14, 1972. The Government proved that the

weapons were purchased by him from Montgomery Loan

Company and that 3 of the Armalite rifles and 3 of the M-

1903 rifles that the defendant is charged with transporting

without a license were turned over to the Department of

Industrial and Forensic Science between February 22,

1973 and January 21, 1975. However, the Government

produced no evidence as to how or by whom they were

exported.

In Count 9 Cahalane is charged with purchasing 15

Armalite AR-180 auto loading rifles and transporting 14 of

them without a license. The Government proved that all

of the guns were purchased on January 28, 1972 from

Montgomery Loan Company and that 14 were turned

over to the Department of Industrial and Forensic Science

between May 17, 1972 and June 16, 1975, but offered no

evidence as to how or by whom the weapons were

transported.

In Count 11 Cahalane is charged with purchasing 15

Armalite AR-180 auto-loading rifles and with transporting

13 of them without a license. The Government proved

®

Appendix “B” A37

that all 15 rifles were purchased on March 10, 1972 from

Montgomery Loan Company. The Government adduced

no proof, however, concerning the manner or by whom

they were exported.

In Count 15 the indictment charge that Cahalane

purchased 5 Armalite AR-180 auto-loading rifles and trans-

ported 4 of them without a license. Even though the

Government proved that all the weapons were purchased

on March 21, 1972 from Montgomery Loan Company and

that 4 were received by the Department of Industrial and

Forensic Science between September 3, 1973 and January

23, 1975, it did not offer any evidence as to how or by

whom the weapons were transported.

Count 16 charges Cahalane with purchasing 25 Arma-

lite AR-180 auto-loading rifles and transporting, without a

license, 5 of those weapons. Proof at trial established

that the weapons were purchased on April 5, 1972 from

Montgomery Loan Company and came into the possession

of the Department of Industrial and Forensic Science

between April 3, 1973 and April 9, 1974, but there was

no evidence as to the manner and by whom they were

exported.

The Government’s proof of exporting without a license

was limited to the introduction of a document from the

Department of State showing that for the period from

January 1, 1969 to March 3, 1976, no record existed con-

cerning the issuance of any export license to Byrne, Caha-

lane, Conlon, McNichol, Regan or Duffy. However, the

record in this trial is completely devoid of any testimony

by the Government showing that no license or licenses

were issued in connection with the export of any of the

firearms described in the indictment.

It is the contention of the Government that since the

evidence shows that the weapons were purchased hy the

A38 Appendix “B”

defendants or the co-conspirators; that the weapons came

into the hands of the authorities in Northern Ireland; and

that there were overt and clandestine meetings and discus-

sions concerning the lawful and unlawful purchase of

weapons, the jury could reasonably infer that the weap-

ons described in the indictment were exported without a

license. The Government specifically points to the testi-

mony of Reh and Nigro. Nigro testified that Duffy said

they were running into problems with customs and that

Scotland Yard was cooperating with the FBI. However,

to sustain its burden, the Government was required to

prove either by circumstantial or direct evidence that the

firearms described in the indictment were exported with-

out a license. This the Government failed to do. The

Government failed to produce one scintilla of evidence

concerning the illegal exportation of the weapons described

in the indictment. This total lack of evidence we find to

be fatal to the Government's case, as to the substantive

counts. As we have heretofore pointed out, however, the

evidence is sufficient for the jury to find the defendants

Byrne and Cahalane guilty on the conspiracy count in that

the evidence is amply sufficient for the jury to find beyond

a reasonable doubt that the defendants conspired to export

firearms without a license. To support a conspiracy con-

viction, the Government must show an agreement and

specific intent to achieve an unlawful goal. The evidence

in this case does establish the existence of a conspiracy to

export guns without a license, although it fails to show

how or by whom the specific guns described in the indict-

ment were exported. It is well-established that in order

to find one guilty of conspiracy, it is not necessary for the

Government to show that the conspiracy was successful;

as a matter of fact, the proof may show that the conspiracy

failed. However, such is not the case for aiding and abet-

Appendix “B” A39

ting. To support an aiding and abetting charge the Gov-

ernment must produce evidence from which the jury can

find beyond a reasonable doubt that someone committed

the crime, i.e., that in this case, someone exported without

a license the weapons described in the indictment.

Although “the jury is permitted to infer from one fact

the existence of another essential to guilt, if reason and

experience support the inference”, Tot v. United States,

319 U. S. 463, 63 S. Ct. 1241, 1244, 87 L. Ed. 1519 ( 1943),*

it is well-settled that the Court cannot permit the jury to

rely on conjecture or speculation in arriving at its verdict.

United States v. Heithaus, 391 F. 2d 810 (3d Cir. 1968);

United States v. Cockerill, 366 F. Supp. 856 (S. D. Il.

1973). We believe that the jury was required to speculate

as to whether the weapons described in the indictment

were, in fact, exported by anyone without a license and

that the evidence produced at trial invites such conjecture.

The Government also contends that since it proved

“specific acts of the defendants to aid and abet an export

and an inescapable inference of intent to export illegally,

that none of the defendants had a license to export, and

that the weapons in question were in fact exported, the

burden of proceeding shifted to the defendants to advance

a defense that someone else possessed the necessary license

as that information, if a fact, was peculiarly within their

knowledge.” ®

We again point out that these defendants were

charged with aiding and abetting in connection with the

export of guns without a license. As we have heretofore

stated, the burden was on the Government to prove that

someone committed the crime of exporting without a li-

8. See United States v. Strickland, 509 F. 2d 273 (5th Cir.

1973%° United States v. Pichany, 490 F. 2d 1073, 1078-79 (7th Cir.

1973

9. Letter of Government dated July 20, 1976.

A40 Appendix “B”

cense. The Government’s argument that the burden of

proceeding shifted to defendants to advance a defense

that someone else possessed a license is in no way sup-

ported by the cases cited by the Government and this

Court knows of no theory of criminal law which would

relieve the Government from the burden of proving that

the guns were exported without a license.

In support of its contention, the Government appears

to place reliance on United States v. Fleischman, 339

U. S. 349, 70 S. Ct. 739, 94 L. Ed. 906 (1950); Morrison

v. People of California, 291 U. S. 82, 54 S. Ct. 281, 78

L. Ed. 664 (1934); and Rossi v. United States, 289 U. S.

89, 53 S. Ct. 532, 77 L. Ed. 1051 (1933). Although the

more recent decisions of our Supreme Court appear, for

the most part, to have discredited the theory expressed by

these cases that the burden in a criminal case shifts to the

detendant as to facts which could more conveniently be

proved by a defendant,"’ there is no factual basis in this

10. In suggesting that information concerning possession of a

license by someone other than the defendants is a fact peculiarly

within the know.edge of the defendants and therefore justifies

shifting the burden to the defendants, the Government appears to

rely on the “convenience test”. In Leary v. United States, 395 U. S.

6, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969), the Supreme Court

reviewed its holding in Tot v. United States, 319 U. S. 463, 63

S. Ct. 1241, 87 L. Ed. 1519 (1943), in which it stated that a

statutory presumption is valid when there is a rational connection

between the fact proved and the fact presumed. The Supreme

Court in Leary cited Morrison v. California, 291 U. S. 82, 54 S. Ct.

281, 78 L. Ed. 664 (1934) an example of the “convenience test”

and said:

The Tot Court reduced to the status of a “corollary”

another test which had some support in prior decisions:

whether it was more convenient for the defendant or for the

Government to supply proof of the ultimate fact which the

presumption permitted to be inferred. [Footnotes omitted].

89 S. Ct. at 1547.

Later in this opinion, the Supreme Court in Leary said:

However, we consider that this approach, which closely re-

sembles the test of comparative convenience in the production

of evidence [citing Morrison] was implicitly abandoned in

Appendix “B” A4l

case for claiming that it would have been more “conveni-

ent” for the defendants to prove that someone possessed a

license to export the guns in question. Not only would

such knowledge be more readily available to the United

States Government, i.e., that no one had a license to ship

these guns, but the cases make it abundantly clear that

the Government had the burden of proving that the guns

were exported without a license. It is the State Depart-

ment which issues licenses for exporting weapons. In

this case the only evidence presented by the Government

was that the three defendants on trial, the two defendants

who were fugitives, and one of the two unindicted co-con-

spirators named in the indictment did not have a license.

We take no issue with the rule cited by the Government

that the burden is on the defendants to establish that they

come within an “exception” to the statute that requires a

license to export the weapons in question, McKelvey v.

United States, 260 U. S. 353, 43 S. Ct. 132, 67 L. Ed. 301

10. (Cont’d.)

Tot .... [While recognizing (in Tot) that “the defendants

. . . knew better than anyone else whether they acquired the

firearms or ammunition in interstate commerce”, 319 U. S., at

469, 63 S. Ct., at 1246 [87 L. Ed., at 1525], the Court held

that because of the danger of overreaching it was incumbent

upon the prosecution to demonstrate that the inference was

permissible before the burden of coming forward could be

placed upon the defendant. 89 S. Ct. at 1552.

The Government also relies on the following Statement in Under-

hill, Criminal Evidence, Sixth Edition (1973), {53, p. 115:

But if a fact is peculiarly within the knowledge of the accused,

as his own age when he pleads nonage as to a defense or that

he ~ a — to : be an ~——- - — business

or an otherwise forbidden act, urden roof -

erally rests on him. “ as

The most recent case cited in Underhill to support this statement

is Communist Party of United States v. United States, 118 U. S.

App. D. C. 61, 331 F. 2d 807, 814 (1963), cert. denied, 377 U. S.

, 84 S. Ct. 1646, 12 L. Ed. 2d 737 (1964). However, Com-

munist Party relies on the now discredited case of Morrison v.

California, 291 U. S. 82, 54 S. Ct. 281, 284, 78 L. Ed. 664 (1934).

A 42 Append ix «« B”

(1922); United States v. Rosenberg, 515 F. 2d 190, 199

(9th Cir. 1975), cert. denied 423 U. S. 1031, 96 S. Ct. 562,

46 L. Ed. 2d 404; United States v. Chodor, 479 F. 2d 661,

663 (1st Cir.), cert. denied, 414 U. S. 912, 94 S. Ct. 254,

38 L. Ed. 2d 151 (1973). We emphasize, however, that

in this case we are not dealing with any “exception” or

“exemption” to the statute. It was the Government's

burden to prove, beyond a reasonable doubt, all of the

elements of the crime of aiding and abetting the exporta-

tion of particular weapons, which, in this case, required

proof that someone committed the substantive offense of

exporting the guns described in the indictment without a

license."’

11. In Mullaney v. Wilbur, 421 U. S. 684, 95 S. Ct. 1881, 1891,

44 L. Ed. 2d 508 (1975), the Supreme Court reaffirmed its holdin

in In re Winship, 397 U. S. 358, 90 S. Ct. 1068, 1073, 25 L. Ed.

368 (1970) that the due process clause of the Fourteenth Amend-

ment requires the Government to prove beyond a reasonable doubt

every fact necessary to constitute the crime the defendant is

charged with committing. Mullaney explains that although in a

criminal case the Government generally bears both the production

burden and the persuasion burden, in some particular instances

the Government is aided by a presumption or a permissible infer-

ence which must meet exacting standards of due process. In each

of the cases where the production burden is shifted, the ultimate

burden of persuasion by proof beyond a reasonable doubt remains

on the prosecution. S. Ct. at 1891-1892, n.’s 31, 32. However,

Mullaney establishes no general rule permitting the production

burden to shift; only specific instances of procedural devices set

forth in statutory form or well recognized by historical custom are

recognized. In striking down a Maine statute which required a

defendant in a murder case to prove by a preponderance of the

evidence that he acted in the heat of passion in order to reduce

the Lane from murder to manslaughter, the Supreme Court

stated:

It has been suggested that because of the difficulties in

negating an argument that the homicide was committed in the

heat of passion the burden of proving this fact should rest on

the defendant. No doubt this is often a heavy burden for the

prosecution to satisfy. The same may be said of the require-

ment of proof beyond a reasonable doubt of many contro-

verted facts in a criminal trial. But this is the traditional

burden which our system of criminal justice deems essential.

(Citations omitted). 95 S. Ct. at 1891.

Appendix “B” A43

Defendants Other Contentions.

The defendants have alleged a great number of other

errors. Many of these assignments of error were raised

pre-trial and were ruled upon after oral argument and

presentation of briefs. We will, however, briefly review

the alleged errors, inasmuch as the record contains the

arguments of both sides as well as the reasons for the

Court's rulings.

Motion in Arrest of Judgment.

In support of their motion in arrest of judgment, the

defendants contend that the Counts charging them with

exporting firearms without a license (Counts 4, 5, 9, 11, 13,

15, 16) do not charge an offense because the indictment

fails to allege that the defendants were engaged “in the

business of exporting” firearms without registration which

they claim is the only offense cognizable under 22 U. S. C.

§ 1934. This same argument was rejected in Samora v.

United States, 406 F. 2d 1095 (5th Cir. 1969). There, the

defendant, charged with a violation of this statute when

intercepted at the United States-Mexico border with hand-

guns secreted in his car, claimed that one isolated act

would not bring him within this statute. The Court in

Samora said that even though 22 U. S. C. § 1934(b), supra,

requires “every person who engages in the business of

manufacturing, exporting, or importing any arms, ammuni-

tion, or implements of war . . . designated by the Presi-

dent under subsection (a) of this section” to register,

subsection (a) of § 1934 authorizes the President to “con-

trol, in furtherance of world peace and the security and

foreign policy of the United States, the export and import

of arms, ammunition, and implements of war”, and sub-

section (c) speaks in terms of “any person” who violates

any rule or regulation issued under the section. 406 F. 2d

A44 Appendix “B”

at 1097. 22C. F. R. Section 127.01, promulgated pursuant

to § 1934, provides that it shall be unlawful for “any per-

son” to export from the United States any article on the

United States Munitions List without first having obtained

a license. Thus, Samora holds that neither the regulation

requiring a license to export the items listed by the Presi-

dent nor the regulation providing for application is limited

to the export by one “engaged in the business.” 406 F. 2d

at 1097. We so conclude.

The defendants also contend that the substantive

counts and the conspiracy count (Count 1) do not charge

an offense because the indictment fails to allege the man-

ner in which the weapons were transported from the

United States to Northern Ireland. This, they allege, is an

essential element of the offense. It is well established that

the function of an indictment is to apprise the defendant

of the charge of which he is accused and to provide pro-

tection against reprosecution should an acquittal result.

United States v. Goldstein, 502 F. 2d 526, 529 (3d Cir.

1974); United States v. Schartner, 426 F. 2d 470, 476 (3d

Cir. 1970). An indictment is sufficient if it contains a

plain, concise, and definite written statement of the essen-

tial facts constituting the offense and states all the essential

elements of the offense charged. United States v. Barbato,

471 F. 2d 918, 921 (1st Cir. 1973). As to the necessity of

alleging the manner of export, 22 C. F. R. Section 121.18,

promulgated pursuant to § 1934, states:

For the purposes of this subchapter the term “export”

means the sending or taking out of the United States

in any manner of any article, equipment, or technical

data on the United States Munitions List except as

may be otherwise expressly provided in a particular

context. (Emphasis added).

Appendix “B” A45

The manner of the export is not an essential element of

the crime. We hold that the indictment sets forth a suffi-

cient description of the facts and elements of the crime.”

Motion for a New Trial—Pre-Trial Rulings.

The defendants argue that the Court erred in failing

to sever the Counts charging them with acting as an agent

of a foreign government without prior notification to the

Secretary of State in violation of 18 U. S. C. § 951" and

18 U. S. C. § 11“ from the rest of the Counts, and that the

Court erred in declining to rule as a matter of law prior to

trial on whether the IRA was “a Body of Insurgents” as

charged in the indictment and provided in 18 U. S. C. § 11.

The defendants claim that the Court’s pre-trial ruling prej-

udiced them in that it permitted the Government to intro-

duce inflammatory evidence which was not relevant to the

charges in the indictment. Prior to trial the Court ruled

that whether the IRA was a body of insurgents was a ques-

tion of fact which should be decided by the jury and not

by the Court. At the close of the Government’s case, the

Court granted the defendant's motion for judgment of

acquittal in connection with the foreign agent Counts.

After granting the motion, the Court instructed the jury

12. See Etheridge v. United States, 380 F. 2d 804, 809 (5th

Cir. 1967) in which a similar claim was raised and rejected in

connection with an indictment similarly drafted as to these Counts.

13. 18 U. S. C. § 951 provides as follows:

Whoever, other than a diplomatic or consular officer or

attache, acts in the United States as an — of a foreign

ees without prior notification to the Secretary of State,

s be fined not more than $5,000 or imprisoned not more

than ten years, or both.

14. 18 U. S. C. $11 provides as follows:

The term “foreign government”, as used in this title, in-

cludes any government, faction, or body of insurgents within

a country with which the United States is at peace, irrespec-

tive of recognition by the United States.

A46 Appendix “B”

to disregard any evidence concerning the question of

whether the IRA was a body of insurgents. (N. T. 17-25).

Furthermore, Laris Hytle, a State Department consular

officer, was the only witness who gave testimony concern-

ing the situation in Northern Ireland. (N. T. 7-17—111).”

His testimony was relevant to the issue and was neither in-

flammatory nor prejudicial.

The defendants argue that the Court erred in failing

to exclude Jack Nigro’s telephone transcript of October 3,

1972 on the grounds that the best evidence, the tape re-

cording of the conversation, was destroyed by Nigro while

he was employed as an agent of the Federal government.

A pretrial hearing was held on May 20, 1976, at which time

Nigro was subject to direct and cross-examination. At the

conclusion of the hearing, the Court found that Nigro had

not been acting as an agent of the Federal government

and at trial ruled that the telephone transcript should not

be excluded ® since the tape had not been destroyed in

bad faith and, if Nigro was believed by the jury, the

transcript was accurate. (N. T. 11-136—139). At trial,

Nigro testified as to the events surrounding the transcript

(N. T. 11-144—148), and defense counsel searchingly

cross-examined Nigro on every detail concerning it. (N. T.

11-182—252). We have reviewed the record and find no

prejudice to the defendants in the Court’s having admitted

it in evidence.

15. Professor ae Moore, a professor of International Law at

the University of Virginia School of Law, testified as an expert in

the field of international law. (N. T. ge Jay Mallin, a

journalist, testified as an expert in the area unconventional

warfare. (N. T. 11-5—69). Neither witness gave any testimony

directly concerning any event in Northern Ireland.

16. The defendants 7 on United States v. Harrison, 173

U. S. App. D. C. 260, 524 F. 2d 421 (1975) and United States v.

Bryant, 142 U. S. App. D. C. 132, 439 F. 2d 642 (1971). Both of

these cases discuss the responsibility to maintain materials on the

part of a government “agent”.

Apvendix “B” A47

The defendants also contend that the Court erred in

not granting a pre-trial hearing to determine whether there

had been any taint from alleged unlawful electronic sur-

veillance. In response to defendants’ pre-trial motion

seeking an order disclosing information relevant to elec-

tronic surveillance, pursuant to 18 U. S. C. § 3504(a)(1),

the Government filed an affidavit by David H. Hopkins,

an attorney in the Criminal Division of the Department

of Justice, who was assigned to prepare and try this case.

This affidavit stated that he had turned over to defense

counsel transcripts of two electronic overhearings of per-

sons who might have been defendants. It further stated

that no evidence in the case was the primary product of an

unlawful act. On May 6, 1976, the Court denied the de-

fendants’ motion for a hearing, conditioned on the Govern-

ment’s agreement to set forth a more comprehensive affi-

davit showing the Federai agencies that were contacted by

the Government. On May 11, 1976, David Hopkins com-

plied with the Court’s order by filing a supplemental affi-

davit setting forth the Federal agencies that were con-

tacted. In light of the allegations of the defendants and

the affidavits of the government, the failure to hold a

hearing is not error. See United States v. D'Andrea, 495

F. 2d 1170 (3d Cir. 1974).

Evidentiary Errors.

The defendants claim that the Court erred in permit-

ting the introduction of foreign agents registration docu-

ments which were allegedly obtained in violation of de-

fendants’ Fifth Amendment rights. The Government

introduced short form registration forms filed with the De-

partment of Justice by the three defendants on trial to

show motive, intent and means by which the conspiracy

was effected, inasmuch as the documents evidenced that

the defendants were officers of the Irish Northern Aid

A48 Appendix “B”

Committee. (N. T. 13-210—211, 14-33). The defendants

objected, claiming that the documents violated their Fifth

Amendment privilege of self-incrimination."" Their argu-

ment is as follows: After extensive communications with

the Justice Department concerning the status of the Irish

Northern Aid Committee in 1972 and 1973, the defendants,

as Officers of the Irish Northern Aid Committee, filed regis-

tration statements pursuant to the Foreign Agents Reg-

istration Act of 1938, 22 U. S. C. § 611 et seq., as amended.

It is the defendants’ contention that at the same time the

Government was investigating the Irish Northern Aid

Committee to discover whether it had violated 18 U. S. C.

§ 951 by not registering with the Department of State.

Therefore, conclude the defendants, the Foreign Agents

Registration Act violates their Fifth Amendment rights.

After extensive oral argument and testimony out of the

presence of the jury, the Court noted that the Foreign

Agents Registration Act had been subject to attack on

Constitutional grounds and upheld in Attorney General v.

Irish Northern Aid Committee, 346 F. Supp. 1384 (S. D.

N.Y. 1972), affd 465 F. 2d 1405, cert. denied 409 U. S.

1080, 93 S. Ct. 679, 34 L. Ed. 2d 669 (N. T. 14-35). In

that case, the Court found that:

It cannot be seriously argued that the sole or dominat-

ing purpose of the Act is to compel criminals to keep

incriminating records to be used to convict the record-

keepers in subsequent criminal trials. Its purpose is

to meet the Government's need for records necessary

to enforce its national defense and foreign policies.

17. At trial the defendants cited Miranda v. Arizona, 384 U. S.

436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) and appeared to

abandon their original reliance on Leary v. United States, 395

U.S. 6, 89 S. Ct. 1 23 L. Ed. 2d 57 (1969); Marchetti v. United

States, 390 U. S. 39, 88 S. Ct. 697, 19 L. Ed. 2d 889 (1967); and

Haynes v. United States, 390 U. S. 85, 88 S. Ct. 722, 19 L. Ed. 2d

923 (1968).

Appendix “B” A49

And so, here disclosure of defendant’s activities

bears a substantial relation to a legitimate interest

which is asserted by the Government to justify the

disclosure. The governmental interest may fairly be

said to outweigh any possible infringement of the

First Amendment rights of the defendant’s members

or contributors. 346 F. Supp. at 1391.

In Attorney General, the Court distinguished Albertson v.

Subversive Activities Control Board, 382 U. S. 70, 86 S. Ct.

194, 15 L. Ed. 2d 165 (1965) on the ground that the pur-

pose of the Foreign Agents Registration Act is not to com-

pel criminals to keep incriminating records as was found to

be the case with the Act in question in Albertson. As

Justice Brennan, in his concurring opinion in Fisher v.

United States, 425 U. S. 391, 96 S. Ct. 1569, 1587, 48 L. Ed.

2d 39 (1976), points out: “Couch v. United States, 409

U. S. 322, 93 S. Ct. 611, 34 L. Ed. 2d 548 (1973) expressly

heid that the Fifth Amendment protected against the com-

pelled production of testimonial evidence only if the in-

dividual resisting production had a reasonable expectation

of privacy with respect to the evidence.” (Citations

omitted). No reasonable expectation of privacy could

attach to the forms filled by the defendants pursuant to

the Foreign Agents Registration Act. We find no error

in the Court’s ruling.

The defendants also argue that the Court erred in

permitting all of the weapons received by authorities in

Northern Ireland and turned over to the Department of

Industrial and Forensic Science for inspection to remain

in the courtroom throughout the trial inasmuch as only

51 of the 137 weapons were attributable to the defendants

on trial. However, the weapons in the courtroom were

all purchased by the defendants or their co-conspirators

and introduced in evidence. (N. T. 6-21—22; 9-217).

A50 Appendix “B”

The weapons themselves were the central evidence in the

case; in fact, several of the government's witnesses re-

quired the weapons for the presentation of their testimony.

(N. T. 6-63; 6-89—91; 6-121—142; 6-151—154). Since the

weapons were relevant and material to the case, any pos-

sible prejudicial effect of these items (and the defendants

have not alleged any prejudice) clearly was outweighed

by their probative value. United States v. Bamberger,

456 F. 2d 1119 (3d Cir. 1972), cert. denied, 413 U. S. 919,

93 S. Ct. 3067, 37 L. Ed. 2d 1046 (1973); United States

v. Farries, 328 F. Supp. 1034 (M. D. Pa. 1971). The

presence of the weapons in Court was a determination

within the discretion of the trial judge and we find no

abuse of discretion."* The defendants also claim error

because three of the weapons were present in the jury

room. The fact that the jury, during its deliberation,

requested to see one of each type of weapon can hardly

be said to have any prejudicial effect.

The defendants contend that the Court unduly re-

stricted the 2ross-examination of Jack Nigro by prohibiting

the defense from proving on cross-examination that Nigro

had issued some checks which bounced. On the basis of

Rule 608(b) of the Federal Rules of Evidence, the Court

excluded the evidence. This Rule states as follows:

(b) Specific instances of conduct. Specific in-

stances of the conduct of a witness, for the purpose

of attacking or supporting his credibility, other than

conviction of crime as provided in rule 609, may not

be proved by extrinsic evidence. They may, how-

ever, in the discretion of the court, if probative of

18. In United States v. Johnson, 401 F. 2d 746, 747-48 (2d

Cir. 1968), the Court said:

[t]he evidence was relevant; it can hardly be said in a case

where a is used in a hold-up that the gun .. . is too

prejudicial to be considered by the jury.

Appendix “B” A51

truthfulness or untruthfulness, be inquired into on

cross-examination of the witness (1) concerning his

character for truthfulness or untruthfulness, or (2)

concerning the character for truthfulness or untruth-

fulness of another witness as to which character the

witness being cross-examined has testified."

The Court ruled that since there had been neither an

indictment nor a conviction and since the writing of

checks which bounce can often occur where no criminal

intent is involved, in the exercise of its discretion, it found

that the matter was not probative of the witness’s truth-

fulness. (N. T. 11-225).

The defendants also contend that the Court restricted

the cross-examination of Nigro by prohibiting the defense

from proving on cross-examination that Nigro had worked

as an informant while he was under indictment for a

firearms offense. The Court ruled that defense counsel

could question the witness concerning any agreement

which the witness had with the Government in connection

with his testifying at the trial. (N. T. 11-212). The

defense thoroughly explored Nigro’s motives in working

with the Government agents; rather than being restricted,

defense counsel were permitted wide latitude in their

cross-examination.

The defendants claim the Court erred in permitting

testimony concerning the activities of Vincent Conlon,

Thomas Regan, William McNichol and Colm Frie; the

19. Prior to the adoption of the Federal rules, the case law

was well-established that prior criminal acts of a witness which

did not result in an indictment and conviction could not be intro-

duced to impeach a witness's credibility. See, e.g., United States

o. , 500 F. 2d 1238 (8th Cir.), cert. denied, 419 U. S. 1051,

95 S. Ct. 628, 42 L. Ed. 2d 646 (1974); United States v. Sposato,

446 F. 2d 779 (2d Cir. 1971); United States v. Glasser, 443 F. 2d

994 (2d Cir.), cert. denied, 404 U. S. 854, 92 S. Ct. 96, 30 L. Ed. 2d

95 (1971).

A52 Appendix “B”

acts and declarations of the following: Eugene Marley,

Ted Carroll, Cornelius Buckley, Martin Lyons, John

Grady, John Casey, Marjorie Palace; and the testimony of

Casey concerning statements of Martin Lyons and John

Grady. The defendants argue that insufficient proof was

offered to demonstrate that such acts and declarations

were performed pursuant to the conspiracy charged in the

indictment as to defendants Byrne and Cahalane. All of

those named above were alleged co-conspirators. It is

well established that out-of-court statements uf a co-

conspirator may be admissible against other defendants

upon a sufficient showing by independent evidence of a

conspiracy among one or more other defendants and the

declarant if the statements were in furtherance of the

conspiracy. United States v. Trotter, 529 F. 2d 806 (3d

Cir. 1976). See United States v. Nixon, 418 U. S. 683,

94 S. Ct. 3090, 3104, 41 L. Ed. 2d 1039; United States ».

Trowery, 542 F. 2d 623 (3d Cir. 1976); United States t.

Hopkins, 518 F. 2d 152 (3d Cir. 1975). In the present

case there was a sufficient showing by independent evi-

dence of a conspiracy between the defendants Byrne

and Cahalane and the declarant co-conspirators. The

trial court properly admitted into evidence against the

defendants the declarations of the above mentioned

co-conspirators.

Errors in the Court's Charge.

The defendants argue that the Court erred in failing

to instruct the jury on multiple conspiracies, pursuant to

Kotteakos v. United States, 328 U. S. 750, 66 S. Ct. 1239,

90 L. Ed. 1557 (1946), and that the Court should have

charged that proof of similar enterprises linked only by

a common member is not enough to establish a conspiracy

encompassing all parties to all transactions. The defend-

Appendix “B” A53

ants contend that the meetings and acts in Syracuse and

New York City, which they claim were linked solely by

the common activities of Lyons, raised the possibility of

the existence of two or three conspiracies rather than one

overall conspiracy. We believe there was no need to

instruct the jury as to multiple conspiracies. Only one

conspiracy was alleged in the indictment and only one

was proved at trial, United States v. Barrera, 486 F. 2d

333 (2d Cir. 1973), cert. denied, 416 U. S. 940, 94 S. Ct.

1944, 40 L. Ed. 2d 291 (1974). The dealings by the

participants in the conspiracy in this case evidenced “a

large general scheme, and . . . aid given by some con-

spirators to others in aid of that scheme.” United States

v. Kenny, 462 F. 2d 1205, 1216 (3d Cir. 1972), cert.

denied, 409 U. S. 914, 93 S. Ct. 233, 34 L. Ed. 2d 176

(1972), cited in United States v. Adamo, 534 F.2d 31

(3d Cir. 1976). Furthermore, the Court stressed in its

charge that the Government alleged a single conspiracy

and that the Government must show that each defendant

was a knowing member of this conspiracy. The possi-

bility of “guilt transference” to which defendants allude

was properly minimized by the Court’s instruction that in

determining whether a particular defendant was a member

of the alleged conspiracy, the jury should consider only

his acts and statements, for he could not be bound by the

acts or declarations of other participants unless it was

established that a conspiracy existed and that he was a

member of it. United States v. Salerno, 485 F. 2d 260,

263 (3d Cir. 1973), cert. denied, 415 U. S. 994, 94 S. Ct.

1596, 39 L. Ed. 2d 891 (1974) and cases cited therein.

The defendants contend that the Court erred in fail-

ing to instruct the jury that for any defendant to be con-

victed of conspiracy he must have known that the weapons

were to be exported by a person not having a license.

A54 Appendix “B”

The Court can find no basis for this allegation of error

because the Court instructed the jury that a defendant

could not be convicted unless he knowingly did an act

which the law forbids or knowingly failed to do an act

which the law requires, purposely intending to violate the

law.”°

20. The jury, during its deliberation, asked the question:

If an individual, fully aware that the weapons he is buy-

ing are ultimately going to end up in Northern Ireland, be-

lieves that the weapons will leave the United States in a legal

manner is he guil of a conspiracy to have the weapons leave

the country illegally?

And the Court answered:

Now the answer to that is “No,” and I want to explain

the answer so you will understand, I hope, in your further

deliberations.

First of all I am going to point out that in my charge this

morning I told you that a conspiracy is a combination of two

or more persons by concerted action to accomplish some un-

lawful purpose or to accomplish some lawful purpose by

ate means; so a conspiracy is a kind of partnership in

criminal purposes in which each member becomes the agent

of every other member, and that the gist of the offense is a

combination or agreement to disobey or disregard the law.

As I said this morning in this case, the unlawful purpose

charged in the indictment is the exporting or causing to be

exported from the United States to Northern Ireland articles

on the United States Munitions List without a license in viola-

tion of 22 United States Code, § 1934 and the Code of Federal

Regulations, 22-127.01.

Now the Government has the burden to establish beyond

a reasonable doubt that the conspiracy alleged in the indict-

ment was willfully formed and again, as I pointed out this

morning in my — and I am just picking out sections that

I think pertain to the answer to your question, and to read

that again, the Government has a burden to establish beyond

a reasonable doubt the conspiracy alleged in the indictment

was willfully formed, and I said to act or participate willfully

means to act or ey voluntarily and intentionally and

with specific intent to do something the law forbids or with

specific intent to fail to do something the law requires to be

one, that is to say, to act or —- with the bad purpose

either to disobey or disregard the law.

I also said specific intent, as the term implies, means more

than the general intent to commit the act. To establish

Appendix “B” A55

The defendants claim error in the Court’s failure to

instruct the jury that mere membership in the [rish North-

20. (Cont’d.)

specific intent the Government must prove that the defendant

knowingly did an act which the law forbids or knowingly

failed to do an act which the law requires purposely intending

to violate the law.

Now I also pointed out in the charge that an act is done

knowingly if done voluntarily and intentionally and not be-

cause of mistake or accident or other innocent reason, and

that the purpose of adding the word “knowingly” was to insure

that no one would be convicted for an act done because of

mistake or accident or other innocent reason.

Now I just want to further explain, as I did this morning,

by saying it is not necessary for a defendant to know the par-

ticular law which he is violating. It is not necessary for the

Government to show that he read the statute or has an actual

familiarity with the rules themselves; but he must intend to

do the act itself which the law forbids.

Now I just want to say you recall that I gave you the

elements of the conspiracy and in connection with the second

element I said the second element required before a defendant

may be convicted for the crime o openey is that the

y= ol willfully became a member of the conspiracy and

one may become a member of a conspiracy without full

knowledge of all the details of the conspiracy, without knowl-

edge of all the other members of the conspiracy.

On the other hand, a person who has no knowledge of

a conspiracy but happens to do an act in a way which furthers

the object or purpose of the conspiracy does not thereby be-

come a conspirator and mere association with a conspirator or

knowledge of the existence of a conspiracy is insufficient evi-

dence to prove participation in the conspiracy, and the Gov-

ernment must establish beyond a reasonable doubt that the

defendant whose case you are considering was aware of the

basic purpose and the object of the conspiracy and that he

entered in the conspiracy with the ific criminal intent,

that is, in this case with a purpose to export {.om the United

States any of those articles listed on the United States Muni-

fo List without obtaining a license from the Department of

tate.

Just to end up, I want to also point out to you what I

said in the e and again I am just picking out sections of

it which I think will help you in un ing my answer

“No” that I gave to = question, and that is the summary

of the conspiracy, and they are the four essential elements that

the Government must prove beyond a reasonable doubt:

A56 Appendix “B”

ern Aid Committee would not constitute evidence suf-

ficient to convict any defendant of conspiracy. Although

the Court has not been able to find a request to so charge,

in light of the Court’s extensive charge concerning the ele-

ments of conspiracy, we find no error.

The defendants further claim error in the Court's

declining to marshal the evidence as to each alleged con-

spirator. We find no error or prejudice to any defendant

in the Court's alleged failure to discuss the evidence ap-

plicable to each defendant.

The defendants argue that the Court erred in failing

to caution the jury that the testimony of Jack Nigro should

be examined with care if the jury believed he had at-

tempted to induce another to testify falsely or had

attempted to deceive law enforcement officers about ma-

terial facts in the case. The Judge charged the jury as

follows:

20. (Cont’d.)

First, I said the conspiracy described in the indictment,

that is, the exporting or causing to be exported from the

United States to Northern Ireland articles on the United

States Munitions List without a license, was willfully formed

and was existing at or about the time alleged; and

Second, that the particular defendant willfully became a

member of the conspiracy; and

Third, that during the pendency of the conspiracy one of

the conspirators thereafter committed at least one overt act in

furtherance of some object or purpose of the conspiracy; and

Fourth, that such overt act was knowingly done in fur-

therance of some object or cy of the conspiracy.

To bring it back to the “No” answer, I want to say the

Government has the burden to prove beyond a reasonable

doubt both an agreement, that is, the agreement speaking of

the conspiracy as being an — agreement, and a ific

intent to achieve some unlawful purpose, unlawful goal; and

it must be shown that a person, the defendant that you are

considering, had knowledge of the conspiracy’s illicit purpose

when he performed acts which furthered that illicit purpose.

I think I have answered it as completely as I could.

Appendix “B” A57

Information obtained from an informant who

provides evidence against a defendant for pay, or for

immunity from punishment, or for personal advantage

or vindication, must be examined and weighed by

the jury with greater care than the information ob-

tained from an ordinary witness. You must deter-

mine whether the informant’s information has been

affected by interest, or by prejudice against the

defendant.

We find that the jury was sufficiently apprised of the care

it should exercise in considering the testimony of the

informant. Government of Virgin Islands v. Hendricks,

476 F. 2d 776 (3d Cir. 1973); United States v. Bailey,

supra, 451 F. 2d at 181.

The defendants claim that the Court erred in failing

to instruct the jury concerning exemption from the

licensing requirement. As previously discussed, the bur-

den is on the defendants to establish that they came

within an exception. McKelvey v. United States, 260

U. S. 353, 43 S. Ct. 132, 67 L. Ed. 301 (1922); United

States v. Rosenberg, 515 F. 2d 190, 199 (9th Cir. 1975).

Since the defendants offered no evidence concerning a

statutory exemption, there was no error in failing to so

instruct the jury.

Other Alleged Errors.

The defendants contend that since the Government's

proof encompassed conspiratorial meetings and acts in

Syracuse, New York and New York City on dates and

under circumstances not alleged in the indictment, there

was a fatal variance in proof which requires a new trial.

It is well established that the Government is not limited

in its proof at trial to those overt acts alleged in the in-

A58 Appendix “B”

dictment. E.g., United States v. Adamo, 534 F. 2d at 38,

United States v. Quesada, 512 F. 2d 1043, 1046 (5th Cir.

1975). Since the defendants allege only that the Gov-

ernment introduced evidence as to additional overt acts,

but do not claim that the Government proved none of

the overt acts alleged in the indictment, we find no fatal

variance in the proof that would prejudice the defend-

ants’ 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 inflam-

matory 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 pur-

suant to Brady v. Maryland, 373 U. S. 83, 83 S. Ct. 1194,

iO L. Ed. 2d 215 (1963). During the course of the trial,

a question arose as to whether a transcript of a phone con-

versation 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 coun-

sel, 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

Appendix “B” A59

Court denied the defendants’ motion on the basis of its

finding in this record that Brady material was not with-

held. (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, how-

ever, 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 informa-

tion known to the prosecution but unknown to the de-

fense. 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 undis-

closed false testimony by any of the Government's

witnesses.

The defendants allege that the Court erred in admit-

ting into evidence firearm purchase records and telephone

toll receipts without adequate authentication and chain of

custody testimony. We have reviewed the numerous oc-

casions 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

21. For example, Marie Hallowell, the bookkeeper in charge

of records for Montgomery Loan Co.., testified that in t in the ordinary

course of business she made all the entries into the federally

uired firearms forms at the time of their sale. (N. T. 2-67-72).

john 1 John Rugs, General Manager of Century Arms, Inc., testified that

ts reflecting transactions with Palace Firearms were made

ode Gane a as eae ae a course of

business. (N. T. 2-118-127). Robert Smith, a dealer,

testified that the invoices produced at trial were completed con-

temporaneous! ee Se eres ae ee Se lar course

of business. (N. T. 3-11). Marjorie Palace testified that she or

A60 Appendix “B”

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 Gov-

ernment 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 Fed-

eral 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 will-

fully 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 by-

pass 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 indict-

21. (Cont’d.)

her secretary, under her supervision, prepared lists of serial num-

bers of firearms on her invoices of firearms transactions. (N. T.

3-127—131; 3-177—182; 3-187; 3-190) and that some of her records

were copied by a secretary under her supervision from the original

records that had been “dirtied” in a flood. (N. T. 3-192—245;

4-6—24). Noel Haera, an ATF agent, testified that he had obtained

telephone toll records by y contacting the Bell Telephone

Company pursuant to an arrangement with the telephone company

for supply of such records. (N. T. 10-103). Edgar Turner,

the official custodian of the Bell Telephone ye a delivered

telephone toll records pursuant to subpoena. (N. T. 7-199).

Appendix “B” A61

ment 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,

408-409, 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). Dis-

closure of grand jury minutes is committed to the discre-

tion 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

22. Furthermore, we see no evidence of bad faith on the part

of the Government, as alleged by the defendants, in seeking to

return an indictment of the counts charging violation of 18 U. S. C.

§951. From the beginning of the trial, the Government expressed

confidence that it could prove the counts charging violation of 18

U. S. C. § 951; the Government argued strenuously against defend-

ants’ motion for acquittal on those counts.

A62 Appendix “B”

ruling is particularly applicable in this case where defend-

ants’ 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 Fed-

eral 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. den.

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.

Appendix “C” A63

APPENDIX “C’”.

UNITED STATES COURT OF APPEALS

For THE TuHrrp Circuit.

Nos. 76-2461, 76-2473, 76-2511/ 12.

UNITED STATES OF AMERICA

v.

DANIEL CAHALANE anp NEIL BYRNE,

Appellants in Nos. 76-2461 and 76-2473,

Appellees in Nos. 76-2511/ 12.

Sur Petition for Rehearing.

Present: Srerrz, Chief Judge, ALpisErtT, ADAMS, GIBBONS,

RosENN, Hunter, Weis and Gartu, Circuit Judges.

The petition for rehearing filed by DANtrEL CAHALANE

and Nem Byrne in the above entitled case having been

submitted to the judges who participated in the decision

of this court and to all the other available circuit judges

of the circuit in regular active service, and no judge who

concurred in the decision having asked for rehearing, and

a majority of the circuit judges of the circuit in regular

active service not having voted for rehearing by the court

in banc, the petition for rehearing is denied.

By THE COURT,

Joseru F. WEIs, JR.,

Judge.

Dated: September 21, 1977.