Appeals from judgments entered in the United States District Court for the Eastern District of New York, Sifton, J., following jury verdicts of conviction on substantive and conspiracy counts under the National Firearms Act. Convictions of all appellants affirmed.
Before Feinberg and Mulligan, Circuit Judges, and Pratt, District Judge.*fn*
All defendants appeal from a judgment of the United States District Court for the Eastern District of New York (Sifton, J.) entered on June 2, 1978, convicting them, after a jury trial following a mistrial, of conspiracy to manufacture firearm silencers in violation of 18 U.S.C. § 371 and 26 U.S.C. § 5861. Defendant MacQueen appeals, too, from a judgment entered by the same court on the same day, convicting him of 22 substantive violations of the National Firearms Act. 26 U.S.C. § 5801 Et seq.
MacQueen argues that the conduct of government undercover agents who collected the evidence was so shocking that it violated his fifth amendment right to due process. Siniscalchi argues that there was insufficient evidence to support his conviction, and that retrial violated his double jeopardy rights. Without filing briefs Armello and Zimmerman adopt the arguments as to due process and sufficiency of evidence.
The convictions of MacQueen, Armello and Zimmerman were affirmed from the bench after oral argument with a brief statement of the reasons for affirming. Decision was reserved on Siniscalchi's appeal, because the double jeopardy issue, which had become a major focus of the oral argument, had not been briefed by appellant, and appeared to require further consideration. At the court's suggestion, supplemental briefing was submitted in letter form by Siniscalchi's attorney and by the government's attorney. We now affirm Siniscalchi's conviction, concluding that there was sufficient supporting evidence and that his belated double jeopardy claim is without merit regardless of whether it was waived by failure to properly assert it below.
I. SUFFICIENCY OF THE EVIDENCE
The evidence connecting Siniscalchi to the firearms conspiracy was gathered by government undercover agents, posing as Mafia hitmen, who met twice with MacQueen and Siniscalchi to arrange the purchase of silencers and unregistered guns from MacQueen, and secretly tape-recorded conversations at these meetings. At the trial the jury heard the tapes, including the parts transcribed and set forth in the margin,*fn1 in which the four men discussed MacQueen's plan to murder co-conspirators Armello and Zimmerman.
Counsel for Siniscalchi sought to minimize this evidence, arguing to the jury and on appeal that Siniscalchi was present at each meeting with knowledge of the conspiracy, but that he did not actively join the conspiracy. However, a jury could reasonably interpret Siniscalchi's explicit acknowledgment, "Right. Now if I don't want to be involved which I am involved, I feel I'm involved", and his statement, "We might as well get a lot (of silencers)." (emphasis added) as linking him to the conspiracy. In context these statements by Siniscalchi provide evidence from which " "a reasonable mind might fairly conclude guilt beyond a reasonable doubt.' " United States v. Taylor, 464 F.2d 240, 243 (2d Cir. 1972).
In order to evaluate the double jeopardy claim it is first necessary to review in some detail the events surrounding jury deliberations on the first trial.
On February 14, 1978, after two weeks of the first trial, Judge Sifton gave his initial charge to the jury. Because the indictment included a four-man conspiracy count and 24 substantive counts divided into 7 separate groups, the charge was long and complex. The jury retired for deliberation before lunch on Tuesday, February 14, 1978. Later in the day the jury sent out two notes requesting certain testimony and exhibits, and asking questions about the conspiracy count. Their first question was whether they could convict just one defendant of conspiracy and find the other defendants not guilty, to which the judge answered, "In the circumstances of this case, no, you may not." Judge Sifton told the jury, in response to their second question, that they could not consider the government agents as part of the conspiracy, and that,
"The same element also has a bearing on the first question since more than one defendant must agree to the illegal objectives of the conspiracy. You cannot convict a single defendant because of the absence of an agreement among two defendants, at least two defendants to the illegal objectives of the conspiracy."
The jury then retired and sent out an additional note describing more specifically the testimony they wished to hear from the tape recordings. At 5:56 p. m. the jury returned to the courtroom, heard portions of the tapes as well as certain other testimony they had requested, and were then excused for the evening and directed to return for further deliberations at 9:30 a. m. the next day, Wednesday.
On Wednesday, Judge Sifton gave additional instructions with respect to conspiracy and entrapment. After more deliberations the jury inquired on the conspiracy count. "Must all four defendants be ...