# Petition — Cahalane v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 434 U.S. 1045

## Text

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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Ok Re UI ee ran oe pence ths Pen o eer e aney 10
4 & Oe | Sree re ere ern 4
a SR ee ee l

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2715%3A1. Public record. Not legal advice.