APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. No. 75-773).
Weis, Circuit Judge, Tom C. Clark,*fn* Associate Justice and Garth, 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 U.S.C. § 1934.*fn1 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.*fn2 In the latter case, 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. Glasser v. United States, 315 U.S. 60, 80, 86 L. Ed. 680, 62 S. Ct. 457 (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-1 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 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 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 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. 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 disguised 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.
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."*fn3
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.
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 country illegally?"
Although the inquiry was directed to the conspiracy count, the jury obviously recognized the importance of the manner 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 overwhelming, was enough to require jury consideration. The record establishes without doubt the defendants' possession of the rifles and ammunition in this country and the confiscation in Northern Ireland. According to the Government'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 defendants, 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 under 22 U.S.C. § 1934 and 22 C.F.R. § 121-23 (1975). There, also, defendants contested the sufficiency of the evidence to prove the offense. ...