United States v. Byrne

Decision Date12 October 1976
Docket NumberCrim. No. 75-773.
Citation422 F. Supp. 147
PartiesUNITED STATES of America v. Neil BYRNE et al.
CourtU.S. District Court — Eastern District of Pennsylvania




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 Duffy.


BRODERICK, District Judge.

Presently before the Court are the motions of defendants Neil Byrne and Daniel Cahalane for Arrest of Judgment 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 to defendants Byrne and Cahalane and a verdict of not guilty as to defendant Daniel Duffy1 in connection with some counts of the twenty-three count Indictment. Both Byrne and Cahalane were found guilty on Count 1 which charged them with conspiracy to export firearms without a license; defendant Byrne also was found guilty on Counts 5 and 13 which charged him with exporting firearms without a license and aiding and abetting; defendant Cahalane also was found guilty on Counts 4, 9, 11, 15 and 16 charging him with exporting firearms without a license and aiding and abetting.2

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 abetting 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)3 and the regulations promulgated thereunder, 22 C.F.R. Section 127.01.4 The theory on which the government proceeded at trial was that although the facts and circumstances relating 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 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 evidence 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 informal, 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 inferred from circumstantial evidence. The Government need not show that the defendant participated in every transaction or even that he knew the identities 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 conspiracy the evidence must be sufficient for the jury to reasonably 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 government 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 associates himself with an ongoing conspiracy may become a party to that agreement, either expressly by agreement 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 purpose when he performs acts which further that illicit purpose. Direct Sales, supra; United States v. Salerno, 485 F.2d 260, 263 (3d Cir. 1973); United States v. American Radiator & Standard Sanitary Corporation, 433 F.2d 174 (3d Cir. 1970). By acting in furtherance of the co-conspirators' goals with knowledge of the improper purpose, the jury can reasonably 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 indictment, 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.5

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 establishes 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 Government proved that the defendants, along with the co-conspirators, 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 affect its probative value, for circumstantial evidence is indistinguishable from direct evidence insofar as the jury's fact-finding function is concerned. United States v. Hamilton, 457 F.2d 95, 98 (3d Cir. 1972). "Evidence 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 summarize 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 mentioned 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 weapons 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).

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 concerning 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...

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