United States v. Cahalane

560 F.2d 601
Court of Appeals for the Third Circuit·Decided August 11, 1977·No. Nos. 76-2461, 76-2473, 76-2511, 76-2512, 76-2565, 76-2566 and 77-1173·Published·Cited by 44 cases

Opinion

OPINION OF THE COURT

WEIS, Circuit Judge.

Although many issues are raised in these appeals, the principal contentions center on the sufficiency of the evidence. 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 prosecution 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.

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 [603]*603U.S.C. § 1934.1 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. § 3731.2 In the latter ease, the defendants 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. Glas-ser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Sica, 560 F.2d 149 (3d Cir. 1977); United States v. De Cavalcante, 440 F.2d 1264 (3d Cir. 1971).

Byrne, Cahalane and others in Pennsylvania and New York purchased Armalite semi-automatic, Lee-Enfield and Springfield rifles, M-l carbines and armor piercing ammunition 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 distances. It also came equipped with a grenade launcher and a flash suppressor. The four named defendants (excluding 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 approximately half of these weapons in Northern Ireland.

In addition to this activity in Eastern Pennsylvania, evidence established that'Ca-halane 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 Committee, 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 fundraising activities and was also the center of the armament purchase and transportation efforts. A former NO-RAID 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. Telephone records disclosed numerous calls between Lyons and Byrne, Lyons and Cahalane, as well as to NORAID headquarters by both Byrne and Cahalane. Byrne also negotiated with a Government informant for the purchase of rifles, machine guns, armor piercing ammunition, rocket 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, grenade 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 member told a Government witness that Lyons had once [604]*604disguised 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 agreement to export weapons without a license and the defendants’ 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 CONSPIRACY COUNT

Stressing the legality and “openness” of their munitions 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 record, 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 heat was on,” and since “Scotland Yard is cooperating with the FBI,” “they had to be very, very careful.”3

The Government proved that the guns were purchased in this country and were traced to Northern Ireland. Exportation in fact occurred, and the circumstantial evidence was sufficient to allow the jury to find knowledge of an improper 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 district court’s determination upholding the jury verdict.

II.

THE SUBSTANTIVE COUNTS

Conceding arguendo, in light of the verdict, the purchase 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 prosecution’s case relied on circumstantial evidence and the inferences 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 deliberations:

“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 conspiracy to have the weapons leave the county illegally?”

Although the inquiry was directed to the conspiracy count, the jury obviously recognized the importance of the manner of exportation.

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United States v. Cahalane, 560 F.2d 601 (3d Cir. 1977).

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