U.S. v. Grady

• Citation: 544 F.2d 598
• Decision Date: 27 October 1976
• Docket Number: D,265,Nos. 264,s. 264
• Parties: , 1 Fed. R. Evid. Serv. 408 UNITED STATES of America, Appellee, v. Frank GRADY and John Jankowski, Appellants. ockets 76-1201, 76-1208.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 598

544 F.2d 598

37 A.L.R.Fed. 819, 1 Fed. R. Evid. Serv. 408

UNITED STATES of America, Appellee, v. Frank GRADY and John Jankowski, Appellants.

Nos. 264, 265, Dockets 76-1201, 76-1208.

United States Court of Appeals Second Circuit.

Argued Sept. 15, 1976.

Decided Oct. 27, 1976.

Thomas A. Holman, New York City (O'Dwyer & Bernstien, Frank Durkan, New York City, of counsel), for appellant Grady.

Mark G. Barrett, New York City (Kenneth E. Bruce, New York City, of counsel), for appellant Jankowski.

Michael Q. Carey, Asst. U.S. Atty., New York City (Robert B. Fiske, Jr., U.S. Atty., Southern District of New York, Marc Marmaro, Jane W. Parver, Allen R. Bentley, Lawrence B. Pedowitz, Asst. U.S. Attys., New York City, of counsel), for appellee.

Before SMITH, OAKES and MESKILL, Circuit Judges.

OAKES, Circuit Judge:

The waves of tragedy from the internecine conflict in Northern Ireland have their ripple effects in this country. Appellants here are Frank Grady, a sympathizer with the Catholic minority in Ulster, and John Jankowski, a licensed firearms dealer in Yonkers, New York. Each was convicted of conspiracy to violate the federal firearms law, particularly 18 U.S.C. §§ 922(m) and 923, which together require a licensed firearms dealer to make true entries in a federal firearms record, and of ten substantive counts of making or causing to be made false entries as to ten .30-caliber semiautomatic rifles in Jankowski's record or "logbook"; Grady was also convicted of one count of unlawful exportation without a permit of these same rifles, in violation of 22 U.S.C. § 1934 and 22 C.F.R. §§ 121-23 (1975).

Conviction after a jury trial was had in the United States District Court for the Southern District of New York, Charles L. Brieant, Jr., Judge. ¹ On appeal, appellants argue that the evidence was insufficient to convict them; that the prosecution was time-barred by the statute of limitations, 18 U.S.C. § 3282; that the statute proscribing the making of false entries in a logbook was not violated, since real people signed their own names and home addresses as purchasers of the weapons; that Irish police reports proving that rifles of the same make, appearance and registered serial numbers were found in Northern Ireland were improperly admitted into evidence; and that the trial court erred in permitting the introduction of subsequent similar act testimony as well as in its charge on aiding and abetting. We find appellants' points to be without merit and accordingly affirm the judgments.

I. Sufficiency of the Evidence.

As to all but the unlawful exportation count, appellants argue that there was insufficient evidence to convict them as a matter of law. The Government's proof was that in May and again in July of 1970, appellant Grady, with the assistance of Government witness John Casey and a Martin Lyons, purchased from appellant Jankowski a number of M-1-B carbines in order to ship them to Northern Ireland. At trial the Government produced four witnesses, each of whom had signed Jankowski's federal firearms record knowing he had not individually paid for and was not going to receive the firearm for which he signed. Taking the evidence in the light most favorable to the Government, as we are required to do in light of the jury verdict, there was ample proof as to Grady that he himself signed for two guns and encouraged the others to sign, and that he or Lyons gave the other individual "purchasers" transfer documents falsely purporting to show that each such "purchaser" had transferred the particular rifle "bought" from Jankowski to another person whom the original " purchaser" not only had never met, but who in several cases was dead.

Jankowski's defense was that he thought he was selling to members of a gun club, but by his own admission he never learned the name of the club. Moreover, the Government's proof was that Lyons was introduced to Jankowski as a person concerned about the troubles in Northern Ireland and interested therefore in purchasing rifles, hand grenades and machine guns. Jankowski advised he could not supply the latter items but said he could supply rifles as long as he obtained a signature in his logbook for each rifle supplied. He approached another dealer to buy 100-500 unregistered rifles. He received cash from Lyons and another co-conspirator. The individual signers did not pay any money to Jankowski as they went along and never received or authorized anyone else to receive the weapons for which they had signed from Jankowski, nor were they shown any weapons. In several cases each of the people signed the logbook twice, and in Casey's case the Government's proof was that Jankowski filled in two separate dates even though Casey signed on the same day. There was further evidence that on a Saturday night in July, 1970, when the gun shop was closed, Grady, Casey and Lyons went to the store and were let in by Jankowski, at which time they loaded over 25 carbines in Grady's and Casey's cars. There clearly was ample evidence from which the jury could have found that Jankowski made and caused to be made false entries in his logbook, that Grady fully participated in this crime as an aider and abettor, and that the two together conspired to commit the crime.

II. Statute of Limitations.

Appellants next urge that the applicable statute of limitations bars their convictions. In this case all of the overt acts in the alleged conspiracy, as well as the conduct constituting the substantive offenses, took place between May 6 and mid-July of 1970. The original indictment was filed on May 2, 1975, just within the five-year statute of limitations under 18 U.S.C. § 3282. ² The original indictment was not dismissed, but the Government filed a superseding indictment on the day trial commenced, March 8, 1976. Appellants argue that this superseding indictment was returned after the statute of limitations had expired.

This argument misconceives the interplay of an indictment with a statute of limitations. Once an indictment is brought, the statute of limitations is tolled as to the charges contained in that indictment. United States v. Feinberg, 383 F.2d 60, 64-65 (2d Cir. 1967) (dictum), cert. denied, 389 U.S. 1044, 88 S.Ct. 788, 19 L.Ed.2d 836 (1968); Powell v. United States, 122 U.S.App.D.C. 229, 352 F.2d 705, 707 n.5 (1965) (dictum). This is a sensible application of the policies underlying statutes of limitations. The defendants are put on timely notice, because of the pendency of an indictment, filed within the statutory time frame, that they will be called to account for their activities and should prepare a defense. See United States v. Marion,404 U.S. 307, 322-23 & n.14, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). The statute begins to run again on those charges only if the indictment is dismissed, and the Government must then reindict before the statute runs out or within six months, whichever is later, in order not to be time-barred. ³ Since the statute stops running with the bringing of the first indictment, a superseding indictment brought at any time while the first indictment is still validly pending, ⁴ if and only if it does not broaden the charges made in the first indictment, cannot be barred by the statute of limitations. United States v. Wilsey, 458 F.2d 11, 12 (9th Cir. 1972) (per curiam); United States v. Garcia, 412 F.2d 999, 1000-01 (10th Cir. 1969); see United States v. Strewl, 99 F.2d 474, 477 (2d Cir. 1938) (L. Hand, J.), cert. denied, 306 U.S. 638, 59 S.Ct. 489, 83 L.Ed. 1039 (1939).

Here, there is no question that the first indictment was still validly pending when the superseding indictment was returned. We must examine the two indictments carefully, however, to be certain that the second did not broaden or substantially amend the charges made in the first. Such an examination is particularly necessary in view of the judicial policy favoring repose in close cases. See United States v. Marion, supra, 404 U.S. at 322 n.14, 92 S.Ct. 455, 30 L.Ed.2d 468. In assessing whether the superseding indictment impermissibly changed the charges here, we are guided to some extent by cases dealing with variances between indictments issued by a grand jury and later amendments of indictments permitted by trial courts. We have held that "amendments of 'form' as opposed to substance are permissible," United States v. Colasurdo, 453 F.2d 585, 591 (2d Cir. 1971), cert. denied, 406 U.S. 917, 92 S.Ct. 1766, 32 L.Ed.2d 116 (1972), quoting Russell v. United States, 369 U.S. 749, 770, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); see United States v. Wilner, 523 F.2d 68, 72 (2d Cir. 1975), and the Supreme Court has indicated that "trivial" or "innocuous" amendments are acceptable, Stirone v. United States, 361 U.S. 212, 217, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). See also Jackson v. United States, 123 U.S.App.D.C. 276, 359 F.2d 260, 262-65, cert. denied, 385 U.S. 877, 87 S.Ct. 157, 17 L.Ed.2d 104 (1966).

With these considerations in mind, we turn to the differences between the two indictments in the instant case. Upon examination, it appears that, to the extent any change of substance was made at all, the charges were narrowed, not broadened. See Salinger v. United States, 272 U.S. 542, 548-49, 47 S.Ct. 173, 71 L.Ed. 398 (1926). In the superseded indictment, the conspiracy count (Count 1) charged in paragraph two that Grady would cause Jankowski and the unindicted co-conspirators to enter their names in the logbook and in paragraph three that Jankowski would knowingly make false entries in the logbook, in that the unindicted co-conspirators and Jankowski would falsely enter their names and addresses as the "true purchasers" of .30-caliber semiautomatic rifles; in the conspiracy count of the superseding indictment paragraph two alleged that Jankowski would make false entries and paragraph three that Grady and Jankowski would and did cause to be entered in the logbook the names of persons who had not in fact...