UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 90-2010
UNITED STATES,
Appellee,
v.
RICHARD CLARK JOHNSON,
Defendant, Appellant.
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No. 90-2011
UNITED STATES,
Appellee,
v.
MARTIN QUIGLEY,
Defendant, Appellant.
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No. 90-2012
UNITED STATES,
Appellee,
v.
CHRISTINA LEIGH REID,
Defendant, Appellant.
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ERRATA
The opinion of the court dated December 19, 1991, is amended as
follows:
Page 22, first paragraph, line 11, and page 23, second paragraph,
line 2, "Abby" should be changed to "Abbie."
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No. 90-2010
UNITED STATES,
Appellee,
v.
RICHARD CLARK JOHNSON,
Defendant, Appellant.
_____________________
No. 90-2011
UNITED STATES,
Appellee,
v.
MARTIN QUIGLEY,
Defendant, Appellant.
_____________________
No. 90-2012
UNITED STATES,
Appellee,
v.
CHRISTINA LEIGH REID,
Defendant, Appellant.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
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Before
Torruella, Circuit Judge,
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Coffin and Timbers,* Senior Circuit Judges.
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Richard E. Bachman, by appointment of the court, with whom Peter
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D. King and Hale, Sanderson, Byrnes & Morton were on brief for
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appellant Martin Quigley.
Alan M. Dershowitz with whom Jack Zaremski, Kevin J. O'Dea, and
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Rosanna Cavallaro were on brief for appellant Richard Clark Johnson.
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William P. Homans, Jr. with whom Homans, Hamilton & Dahmen was on
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brief for appellant Christina Leigh Reid.
Alexandra Leake, Assistant United States Attorney, with whom
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Wayne A. Budd, United States Attorney, Ronald R. Roos, Trial Attorney,
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and Christine M. Thren, Attorney Advisor, were on brief for appellee.
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*Of the Second Circuit, sitting by designation.
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COFFIN, Senior Circuit Judge. Appellants were convicted of
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conspiracy and substantive offenses for their roles in terrorist
activities directed against the British presence in Northern
Ireland. They seek to overturn their convictions and vacate
their sentences on various grounds. After careful review of the
record in this case, we affirm the judgments of the district
court and uphold the convictions and sentences of all three
appellants.1
I. Background
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The facts as the jury could have found them are as
follows. From 1978 until his arrest in July 1989, appellant
Richard Clark Johnson, an American citizen, was engaged in the
research and development of explosives for export to the Republic
of Ireland and use by the Provisional Irish Republican Army (the
PIRA) in its attacks against British civilian and military
targets there and elsewhere. Johnson is a highly educated and
trained electrical engineer. Since receiving his Master's Degree
in the early 1970's he has worked for a number of prominent firms
in the aerospace industry, including Hughes Aircraft and the
Northrop Corporation in California. From 1986 on Johnson carried
out his weapons research and development in a workshop built by
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1Arrest warrants for two others, Peter Eamon Maguire and Gerald
Vincent Hoy, were issued along with those for appellants.
Maguire is an Irish national who is not present in the United
States, has not been arrested, and was not present at trial. Hoy
pled guilty to the charges against him on May 29, 1990. Neither
is a party to this appeal.
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him in the basement of his parents' home in Harwich,
Massachusetts.
Between 1981 and 1986, Johnson wrote and sent a series of
letters regarding the procurement and development of remote-
control bombs to Peter Eamon Maguire, an electronic systems
expert in the Republic of Ireland who is named a defendant in
this case, see supra note 1. The letters ("the Clondalkin
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letters") describe Johnson's efforts to perfect the technology of
the remote-control bombs that have been used by the PIRA in its
attacks upon persons and property in Northern Ireland and
elsewhere since 1972.2 In 1987 the Irish national police seized
these letters from a hiding place in Maguire's home in
Clondalkin, Dublin.
Appellant Martin Peter Quigley is a citizen of the Republic
of Ireland and a United States resident. Like Johnson, he has
been involved in ongoing efforts to improve the technology of
PIRA weaponry. In December 1988, in a conversation over a pay
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2Johnson refers to the acquisition of 27 and 72 megahertz radio
transmitters, the type of transmitter typically used by the PIRA
in its remote-control bombs. The letters also chronicle
Johnson's efforts to improve the detonation mechanism of the
bombs through the use of laser technology, which would shield the
system from jamming attempts. The FBI seized most of the
components of this laser-based system from Johnson's workshop in
Harwich.
The letters describe Johnson's attempts to enhance the
detonator system by using the Weather Alert radio frequency.
From August 1983 on, Northern Irish authorities began to recover
the remains of Weather-Alert bombs in the wake of PIRA-sponsored
bombings. The letters also describe Johnson's procurement of
model FX-401 frequency selector switches, used by the PIRA as
decoders in its remote-control bombs, and his efforts to develop
a time-delayed fuse controlled by a digital wrist watch.
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telephone, Quigley solicited Johnson's advice regarding the
development of a surface-to-air missile system to "counteract"
British military helicopters in Northern Ireland. Between 1988
and 1989, Quigley regularly encouraged appellant Christina Leigh
Reid to join an amateur rocketry society and familiarize herself
with the construction and operation of rocket motors for use in
the anti-helicopter missile system. In the summer of 1989,
Quigley participated in the acquisition of a .50 caliber rifle
for export to the Republic of Ireland.
Appellant Christina Leigh Reid, an American citizen, is a
college-educated electrical engineer and was employed by a
defense-related firm in California until her arrest. From 1983
on, she served as a courier of electronic components for the
remote-control bombs and of information, including a request for
handguns, between Johnson in the United States and "Sean," an
associate of Maguire, in the Republic of Ireland. In the summer
of 1983, as national security efforts increased in preparation
for the Los Angeles Olympic games, Reid provided a false social
security number and address to obtain a post office box, in her
name, to insure the safety and secrecy of the Johnson-Maguire
correspondence.
In late 1988, Reid introduced Johnson to Quigley, over the
telephone, for the purpose of advancing the development of PIRA
weaponry. It was during that telephone call that Quigley
requested Johnson's assistance in developing the anti-helicopter
missile system. Thereafter, Reid, with Quigley's encouragement,
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sought to join an amateur rocketry society with a view to
learning about rocket motors and assisting in the deployment of
the anti-helicopter missile system.
A federal grand jury returned a four count superseding
indictment (the indictment) against appellants on March 22, 1990.
Count One charged all three appellants with conspiracy to violate
the Arms Export Control Act, 22 U.S.C. 2778(b)(2), (c), in
violation of 18 U.S.C. 371, by conspiring to export devices and
materials for the discharge of bombs from the United States,
without first obtaining an export license. Count Two charged
Johnson with the actual manufacture and export of these
materials, in violation of 22 U.S.C. 2778(b)(1), (c). Count
Three charged all three appellants with conspiracy to injure and
destroy British military helicopters based at the Royal Air Force
Station in Aldergrove, Northern Ireland in violation of 18 U.S.C.
956. Count Four charged appellants Johnson and Quigley with
the possession and control of property, namely Johnson's Harwich,
Massachusetts laboratory, used and intended for use in the
destruction of British military helicopters in aid of the PIRA,
in violation of 18 U.S.C. 957 and 2.
Appellants filed various motions before and during trial.
We discuss those relevant to this appeal briefly. All three
appellants moved for the suppression of evidence acquired through
the government's electronic surveillance of Johnson and Quigley.
In addition, all three moved to dismiss Count Three of the
indictment for failure to describe with adequate specificity the
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helicopters that appellants conspired to destroy. Johnson and
Quigley moved to dismiss Count Four of the indictment on the
ground that the underlying statute, 18 U.S.C. 957, violates the
First and Fourteenth Amendments of the United States
Constitution. Quigley moved for severance of his trial from that
of the co-defendants.
The district court denied appellants' motions. Following a
twenty-eight day trial, the jury found all three appellants
guilty of the charges against them, and the district court
sentenced appellants accordingly. On appeal, Johnson, Quigley
and Reid assert numerous grounds for reversing their convictions
and, in the case of Quigley and Johnson, vacating their
sentences. We now turn to our discussion of these claims.
II. The FISA Surveillance Evidence
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Between August 1988 and July 1989, the time of appellants'
arrests, the government conducted electronic surveillance of
Johnson and Quigley pursuant to the Foreign Intelligence
Surveillance Act, 50 U.S.C. 1801-11 (FISA).3 Enacted in
1978, FISA establishes a statutory procedure whereby a federal
officer, acting through the Attorney General, may obtain a
judicial warrant authorizing the use of electronic surveillance
in the United States for foreign intelligence purposes. See S.
___
Rep. No. 604, 95th Cong., 2d Sess. (1978), reprinted in 1978
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3The government did not seek to subject Reid to electronic
surveillance. Her conversations were recorded only to the extent
that they were with Johnson or Quigley.
-8-
U.S.C.C.A.N. 3904, 3906; United States v. Duggan, 743 F.2d 59, 77
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(2d Cir. 1984).
The results of the surveillance undertaken in this case
include audio tapes of incriminating conversations among
appellants and constitute a substantial portion of the
government's evidence. The government identified for appellants
the tapes that it intended to use at trial and made available to
them all of the tapes in advance of trial.
Prior to trial all three appellants moved for suppression of
the FISA evidence, arguing that it had been obtained in violation
of FISA and the United States Constitution. The Attorney General
having filed an affidavit that disclosure of the FISA
applications and orders would jeopardize national security
interests, the magistrate judge conducted an ex parte in camera
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review of the materials.4 The magistrate judge concluded that
the surveillance was legal in all respects and, in a lengthy and
careful opinion, recommended that appellants' suppression motions
be denied. The district court adopted this recommendation.
Appellants renew their suppression arguments on appeal. At
the request of all parties, this court has conducted its own ex
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parte, in camera review of the surveillance applications and
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orders. Having done so, we agree with the magistrate judge and
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4FISA 1806(f) provides that where the Attorney General files an
affidavit that disclosure or an adversary hearing on FISA related
material would harm the national security of the United States,
the district court is prohibited from disclosing the contested
material. Under such circumstances, the district court is to
review the material in camera and ex parte to determine whether
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the surveillance was lawfully authorized and conducted.
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the district court that the FISA surveillance of appellants was
lawfully authorized and conducted.
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A. Threshold Challenge
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1. Purpose of the FISA Surveillance
________________________________
Appellants attack the government's surveillance on the
ground that it was undertaken not for foreign intelligence
purposes, but to gather evidence for a criminal prosecution.
FISA applications must contain, among other things, a
certification that the purpose of the requested surveillance is
the gathering of foreign intelligence information and a detailed
description of the nature of the information sought. See
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1802(a)(1)(A), 1804(a)(6), (7). Although evidence obtained under
FISA subsequently may be used in criminal prosecutions, see S.
___
Rep. No. 701, 95th Cong., 2d Sess. (1978), reprinted in 1978
_________ __
U.S.C.C.A.N. 3973, 3979-85 [hereinafter S. Rep. No. 95-701];
Duggan, 743 F.2d at 78, the investigation of criminal activity
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cannot be the primary purpose of the surveillance. See Duggan,
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743 F.2d at 77; United States v. Truong Dinh Hung, 629 F.2d 908,
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915 (4th Cir. 1980). The act is not to be used as an end-run
around the Fourth Amendment's prohibition of warrantless
searches.
We find no evidence of an end-run in this case. From our
review of the government's FISA applications, it is clear that
their primary purpose, from the first authorization in July 1988,
to July 1989, when appellants were arrested, was to obtain
foreign intelligence information, not to collect evidence for any
criminal prosecution of appellants. The government's inquiries
were all directed to activities relating to the support of PIRA
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operations in Northern Ireland. At no point was there reference
to any criminal liability or prosecution.
2. Showing of Necessity
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In a variation on the "impermissible purpose" argument,
Johnson and Reid argue that their United States citizenship and
residency render the FISA surveillance of them illegal under both
FISA and the Fourth Amendment. We consider the statutory
challenge first.
Where the government seeks FISA authorization for the
surveillance of a "United States person," as opposed to a foreign
national or a foreign power, FISA requires that it make a
specialized showing that the information sought is "necessary to
. . . the ability of the United States to protect against," inter
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alia, "sabotage or international terrorism by a foreign power or
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an agent of a foreign power; or clandestine intelligence
activities by . . . a foreign power or by an agent of a foreign
power," 1801(e)(1)(B), (C), or that the information is
"necessary to . . . the conduct of the foreign affairs of the
United States," 1801(e)(2)(B).
Johnson, joined by Reid, contends that because his work for
the PIRA was not directed against the United States and because
the government could not have shown that information regarding
his PIRA activity was "necessary" to the conduct of foreign
affairs or to the prevention of international terrorism, the FISA
surveillance violated the statute.
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The fact that appellants' terrorist activity was directed at
Northern Ireland, rather than the United States, is of no
consequence to the legality of the FISA surveillance, as the
legislative history and plain language of FISA make clear.
FISA permits surveillance of an American person where the
information sought is necessary to the ability of the United
States "to protect against . . . international terrorism."
1801(e)(1)(B). This class of information is manifestly broader
than that comprising information necessary for the United States
to protect itself against such dangers. As the drafters of FISA
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stated:
The committee intends that terrorists . . . acting for
foreign powers should be subject to surveillance under
this bill when they are in the United States, even if
the target of their violent acts is within a foreign
country and therefore outside actual Federal . . .
jurisdiction. This departure from a strict criminal
standard is justified by the international
responsibility of government to prevent its territory
from being used as a base for launching terrorist
attacks against other countries.
S. Rep. No. 95-701 at 3999, quoted in Duggan, 743 F.2d at 74.
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Having reviewed the FISA applications in this case, we find
that they conform to the standards governing the surveillance of
American persons set forth in 1801(e). The applications reveal
that Johnson had engaged in terrorist acts in support of PIRA
efforts directed against British interests in Northern Ireland.
They thus demonstrate that Johnson was a member of "a group
engaged in international terrorism or activities in preparation
therefore," and, as such, an "agent of a foreign power."
1801(a)(4), (b)(1)(A). In addition, the information sought by
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the government in its surveillance of Johnson was, in our
estimation, necessary to the ability of the United States to
protect against international terrorism and to manage its foreign
affairs. See Duggan, 743 F.2d at 74 ("[I]nternational terrorism
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conducted from the United States, no matter where it is directed,
may well have a substantial effect on United States national
security and foreign policy."); S. Rep. No. 95-701 at 3999.
Johnson and Reid also maintain that the FISA provisions
governing the surveillance of United States citizens contravene
the Fourth Amendment's prohibition of warrantless searches. This
argument was apparently not raised before the magistrate judge.
Before us, it achieves its fullest expression in a footnote to
Johnson's Reply Brief. We suspect, therefore, that appellants
have waived this claim for purposes of their appeal. We have
reviewed it, nonetheless, and find it to be without merit for the
reasons set forth by the Second Circuit in Duggan, 743 F.2d at
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72-74 (requirements of Fourth Amendment vary with governmental
interest at stake; "`procedures established in [FISA] are
reasonable in relation to legitimate foreign counterintelligence
requirements and the protected rights of individuals.'" Id. at
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73 (quoting S. Rep. No. 95-701 at 3983)).5
B. The Legality of the Subsequent FISA Applications
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Appellants challenge the legality of the government's
applications to renew the initial surveillance order of July
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5While it is true that the FISA target in Duggan was not a United
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States citizen, the court's reasoning applies with equal force to
the surveillance of resident United States citizens.
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1988. They argue that the government's failure to include the
results of the first surveillance, conducted between July and
October 1988, in its applications to extend the surveillance,
filed subsequently, contravened the pertinent provisions of FISA.
We disagree with appellants' construction of the relevant
FISA provisions for the reasons recommended by the magistrate
judge and adopted by the district court. See Report and
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Recommendation of Magistrate Judge at 8-10 (Appellants' argument
precluded by FISA 1805(d)(2), which permits FISA judge to
extend surveillance authorization "on the same basis as [the]
original order."). Moreover, we have reviewed the government's
reauthorization applications in this case and find that each
presented the court with facts establishing that appellants
Johnson and Quigley were acting as agents of a foreign power,
pursuant to 1805 (a)(3)(A), 1801(b)(2)(C), (D). Each
application not only set forth the facts supporting prior
applications, as required by 1804(a)(9), but also meticulously
supplied the FISA judge with new details of appellants' terrorist
activity.
III. The Opening Statements and the Challenged PIRA Evidence
_______________________________________________________
Appellants argue that the government's opening statement and
the district court's admission of certain evidence over
appellants' objections denied them the right to a fair trial
guaranteed by the Sixth Amendment of the Constitution.
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A. The Government's Opening Statement
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Certain of the prosecution's opening remarks were, according
to appellants, so improperly inflammatory as to prejudice
irreparably their right to a fair trial. Appellants object to
the government's characterization of the case as "`an echo of
sadness from the graves of dead generations'" and its references
to, among other things, the "bloody but abortive" Irish
Republican uprisings against British rule, the PIRA's bombing
campaign of British civilian and military targets, and the acts
of "ambush" and "sabotage" perpetrated by the PIRA "amongst the
hedgerows, stone walls and narrow lanes of the Irish
countryside." Appellants assert that the government's
prejudicial comments mandate the reversal of their convictions.
This circuit recognizes the impropriety of prosecutorial
commentary serving "no purpose other than `to inflame the
passions and prejudices of the jury, and to interject issues
broader than the guilt or innocence of the accused,'" United
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States v. Machor, 879 F.2d 945, 956 (1st Cir. 1989) (quoting
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United States v. Doe, 860 F.2d 488, 494 (1st Cir. 1988)). We
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are, likewise, mindful of the threat to a defendant's right to a
fair trial posed by remarks foisting a theory of "guilt by
association" upon the jury. United States v. St. Michael's
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Credit Union, 880 F.2d 579, 602 (1st Cir. 1989).
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The remarks of the prosecutor are to be judged in light of
the circumstances of the trial. United States v. Socony-Vacuum
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Oil Co., 310 U.S. 150, 238-42 (1940); United States v. Boldt, 929
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F.2d 35, 40 (1st Cir. 1991). The challenged statements, in our
view, were not improperly inflammatory. Though vivid and
rhetorical, against a background redolent of long continued
violence and carnage they did not exceed the bounds of
adversarial propriety. We are confident that the prosecutor's
remarks had no effect on the outcome of the twenty-eight day
trial. See Boldt, id. (prosecutorial impropriety subject to
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harmless error review). The government marshalled a wealth of
evidence, most of it comprised of appellants' own admissions in
telephone conversations and correspondence, of appellants'
participation in the offenses for which they were charged and of
their connections to the PIRA and its longstanding, ongoing
terroristic campaign.
B. The Challenged Evidence
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Appellants also maintain that the court improperly admitted
various pieces of evidence: (1) an FBI video tape of an explosion
caused by a simulated PIRA remote-control bomb; (2) a newspaper
article published by the PIRA's political arm recounting a failed
PIRA bombing attempt; (3) an article from the same publication,
seized from appellant Reid's apartment, describing the shooting
down of a British military helicopter by the Irish Republican
Army in Northern Ireland; (4) the testimony of a British
commander forced to land his helicopter at the time of the PIRA
attack recounted in the article;6 and (5) testimony regarding
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6Reid alone challenges the the admission of the newspaper article
describing the attack upon British helicopters and the testimony
of Lieutenant Colonel Webb, the British commander who witnessed
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the history and methods of the PIRA, including Maguire's role as
one of its commanders and the development and deployment of
certain weapons by the PIRA.
To be admissible, evidence must be relevant to a material
fact in issue, and its probative value must outweigh any
prejudicial effect upon the jury. The evidence to which
appellants object was relevant to their objectives on all four
counts of the indictment, which charged appellants with acting
"to further the forcible reunification of . . . Ireland . . . by
means of an armed insurrection waged by the Provisional Irish
Republican Army against British and Northern Ireland
authorities." The testimony concerning the methods of the PIRA
and the history of the Irish conflict, in particular, was
relevant, given the characterization of the PIRA as a "body of
insurgents" in Count Four of the indictment.
Additionally, as the district court noted at trial, the
challenged evidence was relevant to the determination of whether
the various electronic components and information that appellants
possessed and sought to export were, as the government charged,
defense materials and services or were, instead, as appellants
argued, the odds and ends of innocent hobbyists.
As for the evaluation of probative value and prejudicial
effect under Fed. R. Evid. 403, it is uncontroverted that the
district court's "battlefield determination is to be accorded
great deference on appeal," United States v. Hadfield, 918 F.2d
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the raid.
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987, 995 (1st Cir. 1990). "`Only rarely -- and in
extraordinarily compelling circumstances -- will we, from the
vista of a cold appellate record, reverse a district court's on-
the-spot judgment . . . .'" Pinkham v. Burgess, 933 F.2d 1066,
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1071 (1st Cir. 1991) (quoting Freeman v. Package Machinery Co.,
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865 F.2d 1331, 1340 (1st Cir. 1988)).
The nub of appellants' unfair prejudice complaint is their
contention that the challenged evidence caused the jury to
convict "`on a theory of guilt by association,'" Johnson Opening
Brief at 29 (quoting St. Michael's Credit Union, 880 F.2d at 602
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(1st Cir. 1989)). As the district court indicated, however,
there was considerable evidence, quite apart from that
challenged, of appellants' involvement with the PIRA.
Appellants' own conversations and correspondence, as well as the
possessions recovered from their homes -- the detonator designs
and components and PIRA news articles -- demonstrate their
approval of, and contribution to, the methods and goals of the
PIRA. The risk of a "guilt by association" verdict against the
backdrop of direct evidence of appellants' involvement with the
PIRA, is remote, at best, and insufficient to warrant a finding
of unfair prejudice.
IV. Count Three: Specificity of Charge and Proof
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All three appellants seek to overturn their convictions
under Count Three of the indictment on the ground that it failed
to charge an offense with adequate specificity and that the
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evidence at trial was insufficient to sustain convictions against
them.
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A. Specificity of the Charging Language
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Count Three of the superseding indictment charged appellants
with knowingly and willfully conspiring to injure and destroy
"specific property belonging to the government of the United
Kingdom . . . to wit: One or more of a total of less than
seventy military helicopters of the Lynx, Gazelle, Puma, Chinook
and Wessex class, based at the Royal Air Force Station at
Aldergrove, Northern Ireland" in violation of 18 U.S.C. 956.7
Appellants claim that this language does not satisfy the
specificity requirement of 956(b), which states that an
indictment under the statute must describe the "specific
property" that the defendants conspired to injure or destroy.
Appellants argue that the indictment is defective because it
identifies the targeted property by class -- a quantity of
military helicopters stationed at a particular location -- rather
than more particularly.
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718 U.S.C. 956, "Conspiracy to injure property of a foreign
government," provides:
(a) If two or more persons within the jurisdiction of
the United States conspire to injure or destroy
specific property situated within a foreign country and
belonging to a foreign government or to any political
subdivision thereof with which the United States is at
peace, or any railroad, canal, bridge, or other public
utility so situated, and if one or more such persons
commits an act within the jurisdiction of the United
States to effect the object of the conspiracy, each of
the parties to the conspiracy shall be fined . . . or
imprisoned . . . or both.
(b) Any indictment . . . under this section shall
describe the specific property which it was the object
of the conspiracy to injure or destroy.
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We concur in the thoughtful analysis of the magistrate judge
adopted by the district court on this issue. See United States
___ _____________
v. Johnson, 738 F. Supp. 591, 592-94 (D. Mass. 1990). From the
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legislative history of 956 the magistrate judge concluded that
the particularity requirement of 956(b) was added to shield a
discrete class of conduct from the reach of 956(a), namely,
constitutionally protected activity, such as a pro-PIRA speech or
a PIRA fund-raising event, that only indirectly implicates the
injury of foreign property. See id. at 593.
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Viewed in this light, the magistrate judge suggested, "the
specificity requirement in Section 956 does not mean that the
property which is the object of the conspiracy to destroy needs
to be described in minute detail." Id. To require more
__
specificity than the number, class, and location of the targeted
property "would be to subvert the purpose and intent of the
statute, in effect, to render it meaningless." Id. Indeed, in
__
the case before us, the charging language describes the
vulnerable property with as much specificity as did the
conspirators themselves. At no time did appellants single out a
particular helicopter to be destroyed. Rather, the record
reflects their commitment to the destruction of British military
helicopters in Northern Ireland, generally.
B. Sufficiency of the Evidence
___________________________
Appellants also assert that the evidence at trial was
insufficient to warrant guilty verdicts against them on Count
Three. Appellants' sufficiency challenge on Count Three tracks
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their specificity claim and, accordingly, fails. Although the
evidence at trial established appellants' interest in an
indeterminate number of helicopters comprised of several classes,
rather than in any particular machine, this was all that was
required. And it is beyond question that, taking the evidence
and all reasonable inferences therefrom in the light most
favorable to the government, the jury could have found beyond a
reasonable doubt that appellants sought to destroy a class of
British military helicopters stationed in a particular location.
See United States v. Zannino, 895 F.2d 1, 9 (1st Cir. 1990)
___ _____________ _______
(sufficiency standard of review).
The jury had before it the transcript of the December 15,
1988 conversation in which Reid introduced Johnson to Quigley,
and Quigley requested Johnson's assistance in devising an anti-
helicopter missile system. As well, it had a copy of a 1988
article published by the political arm of the PIRA and seized
from Reid's apartment, recounting the destruction of a British
army helicopter in Northern Ireland by the Irish Republican Army
and describing the helicopters as "a priority target." From the
apartment of defendant Hoy, a coconspirator in this case, see
___
supra note 1, the FBI seized a handwritten list of the five
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classes of helicopters stationed at the Royal Air Force Station
in Aldergrove, Northern Ireland, and a copy of British Military
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Helicopters, both of which were presented to the jury. The
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government also introduced a variety of direct evidence, in the
form of intercepted conversations, of the efforts of Reid and
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Quigley to obtain access to rocket motors through a rocketry
society. Taking this and the rest of the evidence in the light
most favorable to the government, we must uphold the jury's
guilty verdicts against appellants on Count Three.
IV. Count Four: First Amendment Challenge to 18 U.S.C. 957
_________________________________________________________
Johnson, on behalf of himself and Quigley,8 claims that 18
U.S.C. 957, the statute underlying Count Four of the
indictment, violates the First and Fourteenth Amendments of the
Constitution because it is "substantially overbroad in its
formulation and impermissibly vague in its application."9 The
thrust of his argument is that 957 threatens "the core
constitutional guarantees of unfettered political association and
expression. . . ." Johnson Opening Brief at 33. Briefing neither
the overbreadth nor vagueness arguments in accordance with the
substantial law on point, Johnson instead merges the two in a
series of sketchy complaints. We consider the overbreadth and
vagueness arguments separately.
A. Overbreadth
___________
____________________
8In his brief, Quigley incorporates Johnson's argument on this
issue in its entirety. For ease of reference, however, we
discuss the claim as if made only by Johnson.
918 U.S.C. 957 provides for the punishment of one who "in aid
of any foreign government, knowingly and willfully possesses or
controls any property or papers used or designed or intended for
use in violating any penal statute, or any of the rights or
obligations of the United States under any treaty or the law of
nation."
-24-
Johnson does not argue that his possession and control of
the Harwich laboratory, in which he carried out research and
development of PIRA weaponry, is protected expression or that
957 was invalidly applied to him. Rather, he appears to concede
that his conduct falls within the statute's "legitimate sweep."
New York v. Ferber, 458 U.S. 747, 770 (1982) (quoting Broadrick
________ ______ _________
v. Oklahoma 413 U.S. 601, 615 (1973). Johnson is, nevertheless,
________
entitled to raise an overbreadth challenge, since a statute whose
terms are so broad as to chill a "substantial" amount of
protected speech of parties not before the court, New York State
______________
Club Ass'n v. City of New York, 487 U.S. 1, 14 (1988), may not be
__________ ________________
enforced against anyone, even one whose activity the statute
legitimately governs. See id. at 11; Ferber, 458 U.S. at 770
___ __ ______
(quoting Broadrick, 413 U.S. at 615); Magill v. Lynch, 560 F.2d
_________ ______ _____
22, 29 (1st Cir. 1977).
Johnson's First Amendment attack upon 957 depends,
therefore, upon the strength of his showing that the statute
chills a substantial amount of protected expression. Toward this
end, he asserts that 957 threatens the "basic right to speak
out and participate in matters of international concern," and
provides examples, relegated to a footnote in his Reply Brief, of
conduct that he maintains is impermissibly compromised by the
statute's broad language. His examples include the possession of
blueprints for a robbery planned by someone else and the
possession of a treatise on violent revolution, where the
possessor knows but does not share the author's intent.
-25-
Possession of Abby Hoffman's Steal This Book, is, according to
________________
Johnson, likewise chilled by 957, presumably since the title of
the work suggests an intent to violate a penal statute. At oral
argument Johnson added two examples of actual individuals whose
protected expression would fall within the statute's
prohibitions: a university professor possessing pro-PLO
literature, and a lawyer, Johnson's counsel, holding pro-Israeli
materials.
Even under Johnson's expansive reading of the reach of
957, we are not persuaded that the likely impact of possible
unconstitutional applications is sufficient to invalidate the
statute, broadly worded though it may be. "It is clear . . .
that the mere fact that one can conceive of some impermissible
applications of a statute is not sufficient to render it
susceptible to overbreadth challenge." City Council v. Taxpayers
____________ _________
For Vincent, 466 U.S. 789, 800 (1983). See also Ferber, 458 U.S.
___________ ________ ______
at 770, n.25; Broadrick, 413 U.S. at 618. Rather, a "substantial
_________
overbreadth" determination requires that the party launching the
facial attack "demonstrate from the text of [the statute] and
from actual fact that a substantial number of instances exist in
which the [statute] cannot be applied constitutionally." New
___
York State Club Ass'n, 487 U.S. at 14. See also Taxpayers For
______________________ ________ _____________
Vincent, 466 U.S. at 802.
_______
Johnson's examples fall short of the requisite
substantiality showing. Abby Hoffman's work remains popular, and
we have been directed to no other books which, since the
-26-
enactment of 957 in 1948, have been chilled by the statute.
Moreover, 957 evidently has had no chilling effect upon the
political speech of either the university professor or lawyer
described by Johnson at argument. Indeed, that 957 apparently
has never been enforced until now, and that, since 1948,
Americans have regularly expressed their support of subversive
ideas or institutions, often "in aid of a[] foreign government,"
957, counsels against a finding of substantial overbreadth in
this case. See New York State Club Ass'n, 487 U.S. at 14, and
___ __________________________
Taxpayers For Vincent, 466 U.S. at 802 (refusing to find
_______________________
substantial overbreadth where litigants failed to develop
adequate record of speech-deterrent impact on third parties).
We are unpersuaded by Johnson's First Amendment claim, not
only because he has failed to demonstrate that 957
substantially threatens the protected activity of parties not
before the court, but also, and more importantly, because, as we
read it, the statute does not impermissibly interfere with
protected speech. Until now, there has been no challenge to, and
no occasion to interpret, 957. The instant case, however,
presents us with both. We therefore turn to our interpretation
of the statute.
We agree with the district court that the objective of 957
is "to prohibit certain conduct, not to impinge on
constitutionally protected speech." United States v. Johnson,
_____________ _______
738 F. Supp. 594, 596 (D. Mass. 1990). It is well settled that
"the state may . . . curtail speech when necessary to advance a
-27-
significant and legitimate state interest," where it does so in a
viewpoint-neutral manner unrelated to the suppression of ideas.
Taxpayers For Vincent, 466 U.S. at 804.10 In the case before
_____________________
us, it is undisputed that the federal government has significant
and legitimate interests in curbing criminal activity undertaken
in aid of a foreign power and in ensuring the observance of its
treaty obligations.
We believe that 957 furthers this interest with only
incidental impact upon First Amendment liberties. Punishment for
the possession of papers or property is predicated not upon the
subversive message of such materials, but upon their actual or
intended use in the commission of a crime or the violation of an
international obligation of the United States in aid of a foreign
government.
In our view, the plain import of the `used or intended for
use' qualification in 957 is to limit punishment under the
statute to cases where the papers or property at issue fall
within an exceedingly narrow category of material, what might be
called instrumentalities of crime.11 This would include items
____________________
10 See also United States v. O'Brien, 391 U.S. 367, 376 (1968)
_________ _____________ _______
(where "`speech' and `nonspeech' elements are combined in the
same course of conduct, a sufficiently important government
interest in regulating the nonspeech element can justify
incidental limitations on First Amendment freedoms"); Texas v.
_____
Johnson, 491 U.S. 397, 407 (1989) (limiting application of
_______
lenient O'Brien rule "to those cases in which `the governmental
_______
interest is unrelated to the suppression of free expression'"
(quoting O'Brien, 391 U.S. at 377)).
_______
11In so construing 957, we are guided by the principle that
"application of the overbreadth doctrine is `strong medicine'
that should be invoked only `as a last resort,'" Secretary of
____________
-28-
obviously used only for criminal purposes, such as counterfeit
dollars and the printing press on which they are produced. The
statute also would cover the possession of less telling
materials, such as papers relating to the design of a bomb and
property comprising the components with which it is to be built,
where the possessor intends to use these items in violating a
penal statute or an international obligation of the United States
in aid of a foreign government.12
One may not, on the other hand, be prosecuted under 957
for exercising the "right to speak out and participate in matters
of international concern," for possessing a manifesto urging
"violent revolution," or for owning pro-Israeli or pro-PLO
literature, as Johnson suggests. Nor, indeed, may one be subject
to liability for the possession of any paper or property merely
advocating lawless activity.13 We, therefore, are satisfied
____________________
State of Maryland v. J. H. Munson Co., 467 U.S. 947, 958 (1984)
_________________ ________________
(quoting Broadrick, 413 U.S. at 613), as well as our duty to
_________
construe a federal statute to avoid constitutional problems where
such a construction is reasonable and not contrary to
congressional intent. See DeBartolo Corp. v. Florida Gulf Coast
___ ______________ __________________
Building & Constr. Trades Council, 485 U.S. 568, 575 (1988);
___________________________________
Arnett v. Kennedy, 416 U.S. 134, 162 (1974).
______ _______
12We reject Johnson's argument that the statute fails to specify
whose "design" or "intent" controls the 957 liability
determination. A fair reading of the statute makes clear that
liability turns upon the possessor's intent to violate either a
___________
penal statute or an international obligation of the United
States.
13Johnson's objection to the absence of an "imminence"
requirement from 957 is, therefore, inapposite. See Johnson
___
Reply Brief at 20, relying on Brandenburg v. Ohio, 395 U.S. 444
___________ ____
(1969) (state may not punish advocacy of illegal or violent
action unless "such advocacy is directed to inciting or producing
imminent lawless action and is likely to incite or produce such
-29-
that to the extent that 957 encroaches upon the exercise of
free speech, it does so in furtherance of substantial government
interests and in a manner unrelated to the suppression of
ideas.14
We cannot say that there will never be a case in which
957, even as construed by us, might be applied impermissibly. To
warrant facial invalidation, though, "the overbreadth of a
statute must not only be real, but substantial as well . . . ."
Ferber, 458 U.S. at 770 (quoting Broadrick, 413 U.S. at 615).
______ _________
Having already addressed the inadequacy of Johnson's
substantiality showing, we "must assume that `whatever
overbreadth may exist should be cured through case-by-case
analysis of the fact situations to which [the statute's]
sanctions . . . may not be applied.'" New York State Club Ass'n,
_________________________
487 U.S at 14 (quoting Broadrick, 413 U.S. at 615-16). More
_________
drastic measures than this, we are obliged to leave to Congress.
B. Vagueness
_________
____________________
action." Id. at 447).
__
14Consider, by way of contrast, the ban on "all First Amendment
activities" from the terminal area of Los Angeles International
Airport, invalidated on overbreadth grounds in Board of Airport
_________________
Commissioners of the City of Los Angeles v. Jews For Jesus, 482
_________________________________________ _______________
U.S. 569 (1987). In that case, the Supreme Court invalidated the
resolution because it was an "absolute prohibition of speech"
justified by "no conceivable governmental interest. . . ." Jews
____
For Jesus, 482 U.S. at 575. Similarly, the Broadrick Court
__________ _________
rejected petitioner's facial overbreadth challenge to a statute
forbidding state employees from engaging in certain partisan
political activity on grounds that the statute was "not . . .
directed at particular groups or viewpoints," and that it sought
"to regulate political activity in an even-handed and neutral
manner." 413 U.S. at 616.
-30-
Johnson argues that 957 is impermissibly vague in its
application in violation of the Due Process Clause of the
Fourteenth Amendment. We find that Johnson lacks standing to
raise this claim.
It is settled beyond controversy that one whose conduct is
clearly governed by a statute may not successfully challenge it
for vagueness. See Parker v. Levy, 417 U.S. 733, 756 (1974);
___ ______ ____
United States v. Morison, 844 F.2d 1057, 1071 (4th Cir. 1988)
_____________ _______
(citing Levy, id.). Johnson does not argue that 957 was
____ __
unfairly applied to him.15 He maintains, instead, "that a
defendant may . . . raise a facial challenge to 957 on
vagueness grounds," where First Amendment freedoms are involved.
In Levy, a case which did implicate First Amendment liberties,
____
the Supreme Court rejected precisely this argument,
characterizing it as "a blending of the doctrine of vagueness
with the doctrine of overbreadth . . . not . . . supported by
prior decisions of this Court." 417 U.S. at 756. We therefore
do not reach the merits of Johnson's due process claim.
V. Quigley's Claims: Variance, Sufficiency, Severance
___________________________________________________
Appellant Quigley seeks reversal of the verdicts returned
against him on a variety of grounds independent of those asserted
by appellants as a group. He maintains that a prejudicial
____________________
15The district court, adopting the report and recommendation of
the magistrate judge, concluded, and we agree, that the statute
was validly applied to Johnson and Quigley for their possession
of the Harwich laboratory. See Johnson, 738 F. Supp. 597-98.
___ _______
-31-
variance between the conduct charged in Count One and the
evidence adduced at trial denied him a fair trial, that the
evidence was insufficient to support his convictions on Counts
One and Four, and that the district court's denial of his motion
for severance deprived him a fair trial.
A. The Variance and Sufficiency Claims
___________________________________
Quigley argues that a prejudicial variance between the
conspiracy charged in Count One16 and the evidence adduced at
trial produced reversible error. Count One describes a single
conspiracy, spanning the years between 1981 and 1989, "to further
the forcible reunification of Northern Ireland and the Republic
of Ireland by means of an armed insurrection waged by the
Provisional Irish Republican Army against British and Northern
Ireland authorities." According to Quigley, however, the
evidence at trial proved the existence of two conspiracies, one
directed at the export of defense articles and services for the
perfection of remote-control bombs, and another aimed at the
export of a missile system conceived specifically for the purpose
of destroying British military helicopters.
Quigley insists that there was insufficient evidence of his
involvement in any pre-1988 arms export activity to support his
conviction for the broad conspiracy he finds charged in Count
One. In United States v. Glenn, 828 F.2d 855 (1st Cir. 1987), we
_____________ _____
____________________
16Count One charges all three appellants with conspiracy to
export defense materials and services illegally in violation of
18 U.S.C. 371 ("Conspiracy to commit offense or to defraud
United States") and 22 U.S.C. 2778.
-32-
adopted a three part test for determining whether a prejudicial
variance exists as to any defendant. We determine first whether
there is "evidence sufficient to permit a jury to find the . . .
agreement that the indictment charges," Id. at 858. Where no
__
such evidence exists, we consider whether the evidence is
"sufficient to permit a jury, under a proper set of instructions,
to convict the defendant of a related, similar conspiracy." Id.
__
Where such evidence exists, we ask whether the variance amounts
to "harmless error." Id.
__
Because we answer the first of the Glenn inquiries in the
_____
affirmative, we need not address the other two. On December 15,
1988, Quigley asked Johnson, over a pay telephone, to assist him
in the production of a missile system "to counteract . . . low
flying helicopters." Quigley adverted to his awareness of
Johnson's pre-1988 work perfecting PIRA weaponry, including a
laser-detonation mechanism for the remote control bombs, and to
his own past and ongoing efforts on this score.17
This conversation permits an inference that Quigley not only
knew about, but also participated in, the pre-1988 operations.
At the least, it shows that Quigley recognized that the post-1988
____________________
17For example, Quigley told Johnson, "As you probably guessed by
now, I kind of, we're experiencing a slight technical problem;"
"and you kinda helped us out of these situations before and ah,
we're looking to you once again"; "[a]s I was saying . . . we're
developing a new system . . . ."; "it's a much different system .
. . . But it's what's available to us as you well knew so some of
these . . . use radar, infra-red, acoustic . . . magnetic,
etcetera"; "[s]o we're kinda looking to you if, if possible,
could you look into that field for us ?" "As [Maguire] said to
me . . . yourself and him we're always about ten years ahead of
everybody else."
-33-
missile system on which he worked was simply the most recent in a
series of projects undertaken by the conspirators to assist the
PIRA in its attacks against British interests in Northern
Ireland. Thus, whatever his particular involvement in the pre-
1988 work, we think the record at a minimum shows a "tacit
understanding," Glenn, 828 F.2d at 858, on Quigley's part, that
_____
he was joining an extant scheme to bring about the forcible
reunification of Ireland. Quigley was properly charged, and
found culpable for, his membership in the broad conspiracy
described in Count One.
We find no merit to Quigley's argument that insufficient
evidence existed to find that he committed overt acts in
furtherance of this conspiracy. Quigley's concession that "the
exhibits seized from Quigley and Hoy showed that they had done
the preliminary design of a rocket system to a point where
construction could begin," is, by itself, enough to prove his
involvement. Quigley has failed to demonstrate that a reasonable
jury, taking all of the evidence, and reasonable inferences
therefrom, in the light most favorable to the government, could
not have returned a guilty verdict against him for the offense
charged. Zannino, 895 F.2d at 9.18
_______
____________________
18We also reject Quigley's sufficiency argument with respect to
Count Four, which charged him with aiding and abetting Johnson in
the possession and control of the Harwich laboratory. Quigley
concedes that the evidence against him "consisted . . . of the
facts that [he] and Johnson had discuss[ed] with each other
various electronic projects in the development of a rocket
system; [that] their correspondence covered some details of
technical work Johnson had done [,] and that Quigley visited the
Johnson home . . . and viewed . . . Johnson's . . .`laboratory
-34-
B. The Motion For Severance
________________________
Quigley argues that the district court's denial of his
motion for severance under Fed. R. Crim. P. 14 violated his Sixth
Amendment right to a fair trial.19 His claim is hewn from the
same wood as his prejudicial variance claim: because he was not
involved in the pre-1988 exportation of remote-control bomb
components, he was substantially prejudiced by the joint trial of
all three appellants in this case.20
Our conclusion that Quigley was properly charged and
convicted for the overall scheme alleged in Count One effectively
resolves the severance claim as well. Because Quigley's
involvement as a conspirator could be found to encompass both the
pre- and the post-1988 exportation, there was no need to exclude
evidence relevant to the pre-1988 activity from the jury's
determination of his guilt. The trial court's refusal to grant
____________________
workshop,'" where his fingerprints were found. Quigley Brief at
31. This evidence is sufficient to permit a reasonable jury to
find that Quigley affirmatively participated in the Harwich
"venture," and so aided and abetted in the offense charged. See
___
Nye & Nissen v. United States, 336 U.S. 613, 619 (1949); United
____________ _____________ ______
States v. Lema, 909 F.2d 561, 569 (1st Cir. 1990).
______ ____
19Rule 14 provides, in relevant part:
If it appears that a defendant or the government is
prejudiced by a joinder of offenses or of defendants .
. . for trial together, the court may . . . grant a
severance of defendants or provide whatever other
relief justice requires.
20Quigley objects to the introduction against him of the Johnson-
Maguire "Clondalkin letters," "the Armagh device," (a remote-
control bomb recovered from a PIRA-sponsored explosion), the FBI
videotape of an explosion caused by a simulated PIRA bomb, a 1985
newspaper article published by the PIRA, and evidence of
appellant Johnson's acquisition of bomb components.
-35-
Quigley his own trial, or to compartmentalize the evidence at the
joint trial as Quigley would have preferred, therefore, cannot be
deemed an abuse of discretion. See United States v. Natanel, 938
___ _____________ _______
F.2d 302, 308 (1st Cir. 1991) (review of denial of severance
motion is for abuse of discretion).
VI. Reid's Claims: Sufficiency of the Evidence21
___________________________________________
Reid argues that the verdicts returned against her on Counts
One and Three were not supported by adequate evidence of her
knowledge of the objectives underlying the conspiracies charged.
The indictment identifies the objective underlying the arms
exportation conspiracy charged in Count One as the furtherance of
"the forcible reunification of Northern Ireland and the Republic
of Ireland by means of an armed insurrection waged by the
[PIRA]." It describes the purpose of the anti-helicopter
agreement charged in Count Three as the injury and destruction of
British military helicopters stationed at the Royal Air Force
Station in Aldergrove, Northern Ireland.
It is axiomatic that to be found guilty of conspiracy, a
defendant must be found to have had knowledge of, and an intent
to further, the objectives of the conspiracy. See United States
___ _____________
v. Rengifo, 858 F.2d 800, 808 (1st Cir. 1988); United States v.
_______ _____________
____________________
21We have considered Reid's claim that the district court
committed reversible error in refusing to charge the jury
precisely as she requested, and find it to be without merit. See
___
United States v. Passos Paternina, 918 F.2d 979, 984 (1st Cir.
_____________ ________________
1990) (citing United States v. Gibson, 726 F.2d 869, 874 (1st
_____________ ______
Cir. 1984)).
-36-
Marsh, 747 F.2d 7, 12 (1st Cir. 1984). To obtain a guilty
_____
verdict against a defendant charged with conspiracy, however, the
government need not show that the defendant concurred in every
detail of the underlying objective of the conspiracy; nor need it
prove that she appreciated the full extent of the illegal
enterprise. See United States v. Rivera-Santiago, 872 F.2d 1073,
___ _____________ _______________
1079 (1st Cir. 1989). All that is required is a showing "that
[the defendant] appreciated `the essential nature of the plan,'
and freely determined to associate [her]self with it." United
______
States v. Ruiz, 905 F.2d 499, 506 (1st Cir. 1990) (citation
______ ____
omitted) (quoting Rivera-Santiago, 872 F.2d at 1079 (quoting
_______________
Blumenthal v. United States, 332 U.S. 539, 557 (1947))).
__________ _____________
On Count One, there was more than adequate evidence upon
which a reasonable jury might have found Reid not only to be
"connected" with the charged exportation plan, but to have
understood fully and joined wholeheartedly in it. The Johnson-
Maguire "Clondalkin letters," which address the design,
construction, and export of remote-control bombs, contain
numerous references to Reid's direct participation in the
exportation scheme.
The letters describe Reid carrying a component for a bomb in
June, 1983, to "Sean," an associate of Maguire in Northern
Ireland, and to her delivering a message from "Sean" to Johnson
that "Sean" was in need of handguns. The letters also state that
Reid was, in the words of Johnson and Maguire, "doing a fine
job," "really taking to electronics," "know[ing] her way around
-37-
pretty well," becoming "a real asset," being "dazzled" by "Sean,"
and "doing the necessary gopher work." And, though, in their
letters, Johnson and Maguire more often refer to Reid as "the
bird," "the girl," or "our young friend," rather than by name, a
reasonable jury certainly could have found that this person, and
"the young lady . . . named Chris" and "C. Reid," were one and
the same.
The evidence also established that in 1983 Reid gave a false
address and social security number in order to secure a post
office box in her name for use by Johnson and Quigley to insure
the continued security of their correspondence. Seized from
Reid's apartment was a note requesting her to ship "as soon as
possible" a PRO 30 scanner, a variant of which was recovered from
a PIRA car bomb detonated in Northern Ireland in 1985. The note
stated that "the rest of the gifts can follow at intervals as
usual." In addition, seized from Reid's apartment was a letter
from one "Liam," asking Reid to warn Johnson that the Irish
authorities had seized his letters to Maguire and to urge him not
to respond to any letter without being certain of its
authenticity.
As for Reid's knowledge of the objective of the anti-
helicopter conspiracy, we need only point to her arrangement of
and participation in the telephone conversation of December 15,
1988, in which Quigley requested Johnson's help in developing a
missile system to destroy British helicopters. That Reid
introduced Johnson to Quigley on the occasion of this exchange
-38-
and, thereafter, corresponded with Quigley regularly on the
subject of her joining a rocketry society so that she might learn
to operate rocket motors, would permit a reasonable jury to infer
her knowledge and approval of the proposed bombing of the
helicopters at Aldergrove.
Given the profusion of evidence of Reid's direct
participation in the conspiracies charged, we cannot say that the
jury unreasonably concluded that she understood and assented to
their underlying purposes.22 See Zannino, 895 F.2d at 9.
___ _______
VII. The Johnson and Quigley Sentences
_________________________________
Johnson and Quigley attack the legality of their sentences
on several fronts.23 We consider each in turn.
A. Sophisticated Weaponry
______________________
The government and appellants agree that U.S.S.G. 2M5.2,
"Exportation of Arms, Munitions, or Military Equipment or
Services Without Required Validated Export License," was the
applicable guideline for determining the sentences of Johnson and
____________________
22In response to Reid's argument that the out-of court statements
of coconspirators standing alone are insufficient to prove
knowing participation beyond a reasonable doubt, we note, and
Reid concedes, that neither the Supreme Court nor this circuit
has ruled on this issue. We find, however, that adequate
evidence existed on which the jury reasonably could have found
knowledgeable participation on Reid's part, even ignoring the
written and spoken statements of Johnson and Quigley.
23The district court sentenced Johnson to 60 months of
incarceration on Count One, 120 months on Count Two, 36 months on
Count Three, and 120 months on Count Four, all to be served
concurrently. It sentenced Quigley to a 60 month term of
incarceration on Count One, a 36 month term on Count Three, and a
96 month term on Count Four, all to be served concurrently.
-39-
Quigley on Counts One and Two.24 Johnson, however, on behalf
of himself and Quigley, objects to the district court's
determination that appellants' conduct involved a conspiracy to
export "sophisticated weaponry" such that a base offense level of
22, rather than 14, was appropriate. The gist of appellants'
argument is that the "defense articles" forming the basis of the
illegal exportation offense charged in Count One may not be
classified as "sophisticated" or, for that matter, as "weaponry,"
since "virtually every item [appellants were] alleged to export
was readily available at hobby shops and consumer-oriented
electronics stores, and . . . had common, nonmilitary
applications." Johnson Opening Brief at 38.
We are unpersuaded, to say the least, by appellants' cast of
the facts. It is precisely their skill in making extraordinary
the ordinary that warrants a finding of "sophistication" under
2M5.2. As the Probation Department suggested, in a report
adopted by the district court, "the ability to take readily
available items and . . . using knowledge and skills gained
through extensive education and on the job training . . . rework
them so that they become a radio controlled detonating device,"
underscores the sophistication of appellants' handiwork.25 See
___
____________________
24Congress amended 2M5.2 in 1990. In its prior form, and as
applied to appellants, 2M5.2 set the base offense level at the
greater of "(1) 22, if sophisticated weaponry was involved; or
(2) 14."
25Because we were not provided with the Addendum to the
Presentence Report for appellant Johnson, in which this statement
appears, we have excerpted it from the government's Consolidated
Brief at 101-02, n.75.
-40-
also United States v. Nissen, 928 F.2d 690, 694 (5th Cir. 1991)
____ _____________ ______
(components "`involved' in a tangible way with `sophisticated
weaponry,'" are "sophisticated weaponry" within meaning of
2M5.2).
When reviewing a sentence under the guidelines, we accept
the factual findings of the district court unless they are
clearly erroneous. See 18 U.S.C. 3742(e); United States v.
___ ______________
Pilgrim Market Corp., No. 91-1581, slip op. at 4-5 (1st Cir.
_____________________
Sept. 5, 1991). There was no error in the district court's
finding that appellants dealt in "sophisticated weaponry."
B. The Upward Departure
____________________
Appellants also argue that the district court wrongly
departed upward from the guidelines sentencing range by
considering factors that are not, according to appellants,
"aggravating circumstances" permitting such departures. See
___
U.S.S.G. 5K2.0.
At disposition, the district court specified the reasons for
its departure decision. It referred to the "cool, deliberative,
calculated" quality of appellants' conversations regarding the
development of weaponry in aid of the PIRA and the utter lack of
"any expression of remorse or contrition" in these conversations.
The court noted that appellants discussed the development of
weapons likely to result in injury and death like "two trained
individuals . . . discussing a mechanical problem that they had
to solve." As well, the judge repeatedly referred to "the
potential for death to innocent people" produced by appellants'
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activities. The court also referred to the "extreme" amount of
"planning and sophistication" in the arms export conspiracy; the
"multiple occurrences" of illegal conduct; and the threat posed
by appellants' arms export conspiracy to an American security
interest, namely, the peaceful resolution of the conflict in
Northern Ireland. In addition, the court characterized
appellants' conduct as "terrorism, flat out," and reckoned this
factor in its departure calculation.
Our review of departure decisions follows a three-step
analysis. See United States v. Aymelek, 926 F.2d 64, 69 (1st
___ _____________ _______
Cir. 1991); United States v. Diaz-Villafane, 874 F.2d 43, 49 (1st
_____________ ______________
Cir. 1989). We first inquire whether, as a matter of law, the
circumstances relied upon by the sentencing court "are of a kind
or degree that . . . may appropriately be relied upon to justify
departure." Diaz-Villafane, id. Second, "we determine whether
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the circumstances, if conceptually proper, actually exist in the
. . . case." Id. Lastly, we measure the reasonableness of the
__
direction and degree of the departure. See id. Regarding the
___ __
third step, "appellate review must occur with full awareness of,
and respect for, the trier's superior `feel' for the case." Id.
__
at 49-50; "[w]e will not lightly disturb decisions to depart . .
. ." Id. at 50.
__
Under the first step of the Diaz -Villafane analysis, we
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find that, as a matter of law, each of the circumstances relied
upon by the court was an appropriate basis for the departure.
Section 5K2.8 of the guidelines specifically authorizes a
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departure from the guidelines range for "unusually . . . cruel"
or otherwise "extreme conduct". More generally, 5K2.0 provides
that the sentencing court may impose a sentence outside the range
recommended by the guidelines if it finds any aggravating or
mitigating circumstance "`of a kind or to a degree not adequately
taken into consideration by the Sentencing Commission in
formulating the guidelines.'" 5K2.0 (quoting 18 U.S.C.
3553(b)). While the district court did not specifically
advert to 5K2.8 or 5K2.0, we are free to consider their
applicability. See Acha v. United States, 910 F.2d 28, 30 (1st
___ ____ _____________
Cir. 1990); Doe v. Anrig, 728 F.2d 30, 32 (1st Cir. 1984) (court
___ _____
of appeals free to affirm based on any ground supported by the
record). The court did rely expressly upon 5K2.14, which
authorizes departures for the endangering of the public welfare
and national security, and on 2M5.2, which permits departures
where an extreme amount "of planning or sophistication" or
"multiple occurences," or a threat to national security is found.
2M5.2, comment. (n.2).
Appellants argue that the district court erred in deeming
the threat to national security and the potential for death and
destruction produced by appellants' conduct "aggravating
circumstances," because, according to appellants, these factors
were adequately taken into account by the Sentencing Commission
in establishing the guidelines. Appellants note that the Arms
Export Control Act underlying Counts One and Two of the
indictment was enacted in "furtherance of world peace and the
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security and foreign policy of the United States," 22 U.S.C.
2778(a)(1), and that 2M5.2 of the guidelines, prescribing the
base offense level for the arms export offenses, presumes the
existence of a threat to national security and the potential for
death and destruction. They similarly attack the court's
reliance upon appellants' terroristic purpose in the departure
determination, claiming that their convictions for the offense
charged in Count Four were predicated upon terrorist activity,
namely, their "aiding a faction and body of insurgents."
We find no merit to these arguments. Their logic would
require that an internationally trained terrorist bent on
murdering scores of innocent civilians be sentenced no more
severely than an unlicensed arms dealer; and that one who would
provide arms to a body of insurgents be sentenced no more harshly
than one who would supply them with drug paraphernalia. The
guidelines plainly preclude such results. Section 5K2.0 permits
an upward departure where factors -- a threat to national
security or terroristic purpose, for example -- are present "to a
degree substantially in excess of that which ordinarily is
involved in the offense of conviction," or in any configuration
"`not adequately taken into consideration'" by the Sentencing
__________
Commission, (quoting 18 U.S.C. 3553(b); emphasis added).
Turning to the second and third of the Diaz-Villafane steps,
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we are satisfied that there was ample evidence, much of it set
forth in the foregoing portions of this opinion, to support the
district court's findings on the factors justifying upward
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departure. In addition, we conclude that the degree of the
departure, which effectively doubled Johnson's sentence, was
reasonable.
"Although `there appears to be some inherent tension in the
guidelines themselves as to the extent to which departure is
permissible,' we read the Guidelines as envisioning considerable
discretion in departure decisions . . . ." Diaz-Villafane, 874
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F.2d at 52 (citation omitted) (citing S. Rep. No. 225, 98th
Cong., 2d Sess. (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3235
_________ __
(purpose of Guidelines "is to provide a structure for evaluating
the fairness and appropriateness of the sentence for an
individual offender, not to eliminate the thoughtful imposition
of individualized sentences")).
In Diaz-Villafane we upheld a departure that more than
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tripled defendant's maximum term. As we stated in that case,
while "cognizant that departures should be the exception rather
than the rule, we must nonetheless defer, within broad limits, to
the trial judge's intimate familiarity with the nuances of a
given case." 874 F.2d at 52 (citation omitted). Because we do
not find the degree of departure in this case to be "outside the
universe of acceptable punishments," id., we defer to the
__
district court's decision.
C. The Ex Post Facto Claim
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Appellants argue that the district court's reliance on the
guidelines policy statement regarding terrorism, 5K2.15,
violates the Ex Post Facto Clause of Article I of the
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Constitution because the statement was issued in November 1989,
after the criminal acts charged in the indictment were complete.
We agree that the court improperly relied upon the statement, but
we find this error to be of no consequence.
The bare fact that the district court applied 5K2.15 to
pre-November 1989 conduct does not mean that an ex post facto
punishment was visited upon appellants. In the sentencing arena,
an ex post facto law is one that "`changes the punishment, and
inflicts a greater punishment, than the law annexed to the crime,
when committed.'" Miller v. Florida, 482 U.S. 423, 429 (1987)
______ _______
(quoting Calder v. Bull, 3 Dall. 386, 390 (1798)).
______ ____
Appellants have made no showing that the court's reliance
upon 5K2.15 resulted in the imposition of a more severe
punishment than would otherwise have been ordered. As we have
indicated, the trial court articulated a number of legitimate
bases, quite apart from the terrorism factor, for its departure
decision. And, to the extent that the court sought to consider
appellants' terrorism an aggravating circumstance warranting an
increased sentence, it was free to do so even before the
publication of 5K2.15. Upon issuing 5K2.15, the Sentencing
Commission commented that "[t]his amendment does not make a
substantive change. Such conduct is . . . included in . . .
other policy statements." U.S.S.G. App. C, at C.292 (Nov. 1991
ed.). See, e.g., 5K2.0 ("[c]ircumstances that may warrant
_________
departure from the guidelines pursuant to this provision cannot,
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by their very nature, be comprehensively listed and analyzed in
advance").
We conclude that the trial court's reference to 5K2.15 at
disposition did not violate appellants' constitutional right to
be free of ex post facto punishment.
D. Other Sentencing Issues
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Appellants argue that the district court erred in using the
arson guideline, 2K1.4, to determine their sentences on the
Count Four convictions. See 18 U.S.C. 3553(b) ("[i]n the
___
absence of an applicable sentencing guideline . . . the court
shall . . . have due regard for the relationship of the sentence
imposed to sentences prescribed by guidelines applicable to
similar offenses and offenders. . . ."). This issue was not
preserved for appeal, Johnson apparently having made no objection
in the district court, and Quigley having explicitly approved the
use of 2K1.4 in his Sentencing Memorandum.
Appellants also contend the trial court erred in refusing to
depart downward under 2X1.1(b)(2) for an incomplete conspiracy.
The record is ambiguous as to whether this claim, too, was
waived; because the issue requires little discussion, however, we
nevertheless choose to address it.
A trial court's discretionary refusal to depart downward
from the guidelines sentencing range is not appealable. United
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States v. Lauzon, No. 90-1661, slip op. at 8-9 (1st Cir. July 16,
______ ______
1991); United States v. Jiminez-Otero, 898 F.2d 813, 815 (1st
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Cir. 1990). We have appellate jurisdiction only "where it is
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unclear whether a district court's refusal to depart was based on
an exercise of discretion or based upon the district court's
finding that it could not depart as a matter of law." Lauzon,
______
slip op. at 8.
We conclude that review is impermissible here. Appellants
and the government each argued the appropriateness of a 2X1.1
departure based on the specific facts of this case. The court
declined to depart downward on this ground in open court and on
the record. See Tr. Disposition at 14. We have no reason to
___
believe that its decision resulted from anything other than a
discretionary determination that the government had the better of
the two arguments.
The judgment of the district court is affirmed.
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