*3 exercised control over a MANSFIELD, used and Before CARDAMONE WINTER, York bearing Buick New Judges. beige Circuit white and MFS,” owned Elaine plate license “18
MANSFIELD, Judge: Circuit Comfort, wife of Paul Comfort. (Michael) A. and Thomas Michael Pelusio conducting their police While the were judg- (Thomas) appeal from Pelusio Bellucco, who was surveillance Officer York, ment the Western District of New an- car, noticed a Buick police the marked Mi- jury Judge aftеr a trial before entered turn onto the street description swering Telesca, convicting them of unlaw- chael A. following parked, police where the ful of firearms and ammunition pulled over to side which the Buick commerce, transported in interstate street, lights its and started shut off 922(h)(1), 924(a) and 2. Michael U.S.C. §§ The offi- away back from cars. *4 charging receipt was convicted of one count Two into action. immediately сers went gun (Count I) charging a and another the to the front of their cars block drove IV), receipt (Count of ammunition while his Buick, backed while Officer Bellucco having and felony indictment while cut retreating the Buick and police past car felony. a previously been convicted of As Bellucco exited it off from the rear. was convicted on two Thomas likewise Buick, he car and the approached from his V), (II chаrging counts and unlawful re- Samp- Raymond that the driver was noticed gun un- ceipt of the and ammunition while son, a felon who was a member convicted a felony. der indictment for We affirm a the insurgent and friend of gang the receipt of unlawful of the their convictions Comfort, and that two the Pelusios (Counts II), and reverse their gun I seat) (in the front were Thomas passengers receipt convictions of unlawful of the am- (on right passenger the rear and Michael V). (Counts IV and munition the seat). He heard noises from inside The case arises out of hostilities between being the Buick similar those of shells insurgent gang gang an Rochester and the make ejected gun from a and saw Michael power” “in in At city. approximately said, Cowley Officer “quick some motion.” Pelusio, August 27, 1982, a noon on Gerald a in the car.” Officer “There defendants, of the two brother shot it his gun, by but held Bellucco drew his the death at Rochester home of Paul Com- rear As he abreast of the left side. came fort, a friend of the Pelusios. At 7:00 P.M. a .12- Mossberg Pump window he noted retaliation, apparently on the same in day, After the gauge shotgun lap. in Michael’s the gambling front window a establish- vehicle, exited the Bellucco passengers gang ment operated by power shotgun, pistol-type which had a seized destroyed by shotgun blast from a pickup of thе car grip; a further search of rear by truck identified color and license plate shotgun .12-gauge five rounds of yielded probably operated by number as owned and shells. locating
the Pelusios. After the truck out- 13, 1982, a six-count indict- On October
side of Thomas’ Rochester home the Roches- Pelusio, against ment Michael was filed police
ter an unmarked car stationed on Raymond Sampson, Thomas A. Pelusio and purposes open
street surveillance for cars, charging each in two counts with unlawful joined by
were shortly police two more receipt of The of a firearm and unlawful
one marked and the other unmarked. violation of U.S.C. were that Michael was a con- ammunition
police aware 924(a) 2.1 922(h)(1), Sampson’s
victed felon and that the Pelusios often case §§ 922(h)(1) provides: any or ammunition which Title 18 U.S.C. receive firearm § transported shipped in interstate been has “(h) any person— It shall be unlawful foreign commerce.” for, (1) who is under indictment or who 924(a) provides: of, Title 18 U.S.C. any § has been convicted in court a crime “(a) provision of this violates punishable imprisonment Whoever by term ex- chapter knowingly state- makes false ceeding year; one by prior
was severed the district court ableness of stop, depends mainly
trial. Motions Michael and by degree police Thomas on on intrusion
suрpress evidence the seizure of the fire- defendants’ freedom of movement. United Streifel,
arm and ammunition as violative of their States v. rights by Cir.1981).
Fourth Amendment denied To make the law stop enforce
Judge Telesea after an extended evidentia- ment must be authority “specific aware of
ry hearing.
giving
articulable facts”
rise to a reasonable
suspicion that
individuals to be stopped
At trial the
established
engaged
in criminal activity. United
foregoing
but also showed that
Brignoni-Ponce,
shotgun
found
pur-
2574, 2582,
brother,
chased
David J.
Prouse,
648, 654,
Delaware v.
440 U.S.
Pelusio, two months earlier. Thomas Pelu-
sio testified in his own defense
sitting
review, the
Upon
court must
consider
passenger
the front
seat
he
Buick
totality of the
was unaware
presence
of the shot-
Cortez,
gun, some
long,
lap
three feet
in the
permissible
car,
brother Michael
back seat of the
duration and
investiga
intrusiveness
an
and that if he
known
there was a
stop
tivе
depend
the extent of the law
car
would
have en-
enforcement
interest and the seriousness of
cross-examination, however,
tered it. On
*5
the
giving
conduct
rise
ato
reasonable sus
18, 1981,
he conceded2
on
that
he
December
picion of unlawful activity. Dunaway v.
had been in a
a shotgun
vehicle where
had
York,
200, 209,
New
2248,
442 U.S.
99 S.Ct.
seized,
been
20, 1982,
and that on January
824 (1979);
Pennsylvania
he had entered another vehicle with knowl-
Mimms,
106, 108-09,
v.
434 U.S.
98 S.Ct.
edge that
there
shotguns
were two
in it.
330, 332,
(1977);
government replies that police the were jus- 507, (2d States v. Vasquez, 520 an making tified in investigatory of stop Cir.1980), denied, 847, 102 U.S. the white Buick under principles the S.Ct. “What Ohio, Terry v. 88 S.Ct. might be when unreasonable an officer L.Ed.2d 889 (1968), and its progeny. merely suspects a minor offense has legality investigatory an been is not committed unreasonable when
stop the depends (1) nature and extent .. . have officers reason fear that a government’s the stop, need for the suspected criminal is armed. The nature of judged according must be im to the the investigation, crime under the location
portance of its law enforcement interests of the stop, the time the day, reaction of (2)
under the the suspect approach reason- the to the of police are all representation respect eligible parole ment with to the and shall become for as the by required provisions
information Board of the this Parole shall determine.” chapter kept person to be in the records a respect 2. The with concession to the December chapter, applying licensed under this inor 1981 incident came after Thomas de- exemption license or or relief from dis- present; nied under oath he had been ability provisions chapter, the this by govern- then recalled to the stand $5,000, be shall fined not more than im- signed receipt ment and confronted with his prisoned years, both, not more than five gun. Williams, supra, v. issuе Court noted in Adams
facts which bear on the of reasonable 145-46, at a Harley,
ness.” United States v. 407 U.S. at S.Ct. Cir.1982). In that regard, cannot under such circumstances policeman recently a
Supreme Court has noted his shoulders and allow “simply shrug police escape.”
“roadside encounters between a In crime occur or criminal to
suspects especially hazardous.” Michi police tempo- case of the the conduct
gan Long, ment or representation with respect to the information required by the provisions of this chapter to be kept in the records of a person licensed under this chapter, or in applying for any license or exemption or relief from disability under the provisions of this chapter, shall be fined not more than $5,000, or imprisoned not more than five years, or both, ment or representation with respect to the information required by the provisions of this chapter to be kept in the records of a person licensed under this chapter, or in applying for any license or exemption or relief from disability under the provisions of this chapter, shall be fined not more than $5,000, or imprisoned not more than five years, or both, — U.S. —, —, S.Ct. car for a rarily blocking the defendants’ 77 L.Ed.2d When police work.” stop good was “the essence of stоp facts investigatory Indeed,
lawful reveals at 1923. Id. at
amounting probable cause for search and have remiss their policemen would been the law enforcement officers
arrest if had otherwise. The duty acted v. Wil
proceed accordingly. See Adams moving of a vehicle for interception mere
liams, cause, at at supra, U.S. S.Ct. require probable questioning does
1924; Ohio, at Terry supra, U.S. Brignoni-Ponce, supra, at 1874. S.Ct. at and it is not at require occupants unduly intrusive In the law present case enforcement suspected out of an auto even when step need was obvious articu- Mimms, Pennsylvania v. su- lesser crimes. lable creating grounds facts for reasonable 109-11, at pra, 434 332-33. suspicion activity. of unlawful A member In view of the seriousness violent insurgent of an gang, crimes that had been committed and Gerald, brother earlier murdered occupants likelihood that Buick day; response was the initial armеd, might by which was confirmed shotgun blasting gang’s dominant ejected being the sound of shells from truck gambling establishment from a gun, reasonably Officer Bellucco acted the Pe- strongly resembling owned holding weapon drawn at his side. In These entitled lusios. circumstances alone event intrusion to be of proved infer police to that the second crime had minimal duration since the officers within been probably committed the defendants *6 of in inadvеrtently matter seconds saw in retaliation for the murder their broth- of shotgun lap, view in Michael’s plain the er and further crimes be com- might in the light of other circumstances of part gang mitted as the internecine war provided requisite probable the cause. in progress. participants Armed in these Hampshire, 403 Coolidge v. New might reasonably crimes be to be expected Since in the the home. vicinity found of Pelusios’ and the аrrest investigative stop both the the by
When a 1976 Buick known be used we affirm the district court’s proper were and, noting Pelusios turned the street into suppress of motion to the denial police car, the shut lights marked off its resulting evidence. scene, and started it backing away from the
greatly suspicion, enhanced the grounds for also Defendant Thomas Pelusio Harley, supra, United F.2d at States there evi contends that was insufficient 401. The in pоlice, experienced who having knowingly him of dence convict detection, crime reasonably could conclude shotgun the in violation of 18 received passengers be more of might its one or 922(h)(1) or and having of aided U.S.C. § might Pelusios be armed. receipt by his brother Michael. abetted its out, suspicion As it turned their reasonable governed by The standard which we was confirmed. whether, viewing is review law to the importance fаvorably government,
Given the most Glasser States, 315 locating persons
enforcement interest in v. United
suspected (1942), jury committing serious crimes that 86 L.Ed. rational
day violence, further find a reasonable doubt that preventing beyond could knowingly received intrusion was reasonable. As the the defendant testimony.
firearm aided abetted such this totality these cir-
by Virginia, another. Jackson permitted cumstances to find jury be- yond a reasonable doubt that Thomas had weapon physi
Direct evidence that the knowingly weapon, received the either
cally рlaced in the defendant’s hands is not jointly with or constructively through his
required contrary, to convict. To the re Michael, brother or had aided and abetted ceipt proved of the firearm be cir by knowing receipt such by Michael. evidence, cumstantial United v. La States The defendants next
mare, contend that (1st Cir.1983), pos prosecutor engaged prejudicial pat
session tern misconduct in his cross-examination constructive, “can either actual or ex- summation, Thomas and his which had Flores,
clusive or joint. States v. United the effect of denying them a fair trial. (9th Cir.1982);
679 F.2d United prosecutor’s Alverson, questions Most and the (9th States v. 666 F.2d relevant, objected comments
Cir.1982). per to were possession ‘Constructive exists
when a missible and person ... within bounds knowingly propriety. has
power given Although and the intention at a time at the outset of trial both sides
to exercise dominiоn and cooperated avoiding control over an unnecessary refer
object, directly through either “organized others.’ ences crime” before jury, United v. Birmley, [ States (6th Cir.1973) Craven, ]. See 478 F.2d also [1329] (6th pected that his brother Gerald had been on cross-examination Assistant U.S. Attorney whether did ask Thomas had sus Cir.1976); Daniels, United States v. shot someone connected with organized (6th Cir.1975).” However, crime. under the circumstances questioning imprоper since it
It is true that at the time of his went to Thomas’ for receiving motive Thomas, pas
arrest who was the front gun, which had been opened up by his ef senger Buick, seat of the did have the fort on cross-examination of the arresting person. on his But he was in close it; officers nothing to show that there was
proximity gun lap was in the seat, justifying “unusual” their investigative brother Michael in the back only a
couple Moreover, stop. аway. gun feet Other cross-examination Thomas visible,
was clearly its length (approximate permissible exploration amounted to similar
ly feet) making extremely three it receiving difficult his motive for the .12 gauge
to conceal. The purchased shotgun and his possible connection with
only two months earlier their brother shotgun blasting of the Fernwood Ave David, permitting the jury to infer that nue gambling following establishment
they had obtained day it from Dаvid on the of inquiry murder his brother. This includ of their arrest. The murder their broth ed questions gam as to whether he was a provided er strong a motive all three bler, whether he knew of a gambling estab
living brothers to aid and abet each other in Avenue, lishment at Fernwood and whether using weapon for purposes. retaliation he had heard that there a “hit” was out for previously Thomas had exercised dominion him. and control over the auto whiсh he and improper Nor was it prose for the gun were located at time of his cutor to regarding cross-examine Thomas Finally, although
arrest. Thomas testified prior
that instances in which he had been gotten he would never have into it, present shotgun.
car if he in an with a gun had known the was in he automobile On
was forced after his direct examination Thomas had tes being confronted with a
receipt presence for a tified that he was unaware of thе shotgun seized from him in
another automobile on shotgun December 1981 in the Buick in which he was
(only incident) nine a passenger got months before this to and that he “wouldn’t have
effectively concede untruthfulness ear” was a if had known there
168 nation, your ever cheated on to “Have you was testimony of this it. The purpose course, This, hitting was below in receiv- wife?” participate not that he did show to be condoned. govern- and is not gun. But thе the belt possessing
ing have been admis- to should objection question his elicited
ment’s cross-examination is resulting prejudice recent two But no that on least sustained.
sion he had a an shown; properly with witness in an auto indeed the present
occasions been business.” The swered, your those occasions “It is had on one of none
shotgun and knowledge a rea beyond with harmless automobile was therefore
entered thе error California, in it. The 386 shotguns v. Chapman two doubt.
that
there were
sonable
by deny-
opened
the door
having
824,
ing he would prosecutor’s Most of the it, shotgun was a had known there objected to the defendants were not to properly admitted cross-examination a now, showing absent be raised cannot and, Fed. credibility
impeach Canniff, v. 521 error. United Stаtes plain pres- that his 404(b), show denied,
Rules Evid. Cir.1975), cert. (2d F.2d inten- with the shotgun
ence the car 796, 46 1059, 96 See
tional and not a mistake accident. made. showing has been such (1976). No F.2d Loftsgaarden, Austin that, persuaded we are Lastly, Sports- (8th Cir.1982); Campus Sweater & the defendants any absent (D.S.D. Co., F.Supp. wear the five shotgun the .12 gauge received ... 1979) (“similar acts [are admitted] separate occa of ammunition rounds acts of repeated odds are that show lawfully be found sions, they сould ”), the same nature are accidental.... gun and the ammu guilty aff’d, (4th Cir.1981). the sub separate forming crimes nition as proper prosecu also for the It was Title 18 counts. ject multiplicitous David to ask is tor in summation “Where 922(h) it unlawful for makes U.S.C. § pur Pelusio?” Since felony or convicted of indicted for person Pelusio, the de David recently by chased ammunition” firearm or “to receive brother, been ex fendants’ he could have cоm in interstate shipped that has been if the defend pected, called as witness language, This 1, supra. merce. See n. ants, had done explained what he have (e.g., mail that of some statutes unlike have Presumably, he would gun. with fraud, 1343), does wire U.S.C. §§ that Thomas corroborated Thomas’ defense firearm or round whether each not state gun, with the had nothing to do ammunition, sepa that it was proof absent permissible, It was there been fact. received, nevertheless be rately could fore, in sum prosecutor comment thus be of a count and subject separate to call mation on the defendants’ failure involving a as crime separate punishable David as witness. United States a defense does sentence. Nor potential consecutive Coven, Cir.), cert. (2d history indicate an intent legislative denied, of a unlaw fragmentation load of permit Sindo so that each received firearms fully Cir.1980), na, See, separate charge. the basis of a form denied, *8 1577, 90th 2d H.R.Rep. Cong., No. Sess. e.g, v. L.Ed.2d 302 United States Ad. Cong. & 1968 U.S.Code reprinted Barnes, 121, 148 (2d Cir.1979), cert. 604 F.2d ambi construing 4410. similar News In denied, 907, 100 S.Ct. Act, et 18 U.S.C. in the Mann guity § (1980). transportation (whether simultaneous seq. lines than woman across state the As of more one
It is true that at times permits multiplicious purposes un immoral Attorney engaged in some
sistant U.S. made it clear Court
necessary, counts), Supreme theatrics, irrelevant and improper one dictates that lenity rule of
such as that the asking Thomas on cross-exami- v. charged.
offense Bell United In such any showing absent
States, 81, 83-84, 620, 622, defendants, of prejudice to the and none is L.Ed. 905 This principle applies case, shown this the witness’ assertion of equal
with force to the construction of 18 upheld will be privilege and his direct 922(h). Oliver, United v. U.S.C. States § permitted testimony to stand. Dunbar v. 224, Cir.1982). (7th 683 F.2d 232-33 When Harris, 690, (2d Cir.1979); 612 F.2d Congress wishes to make or each act unit a Cardillo, 606, United v. States 316 F.2d separate so, crime it knows how to do as it 822, (2d Cir.), denied, cert. 375 U.S. 84 S.Ct. demonstrated in the mail and wire fraud 60, To the extent statutes, 18 U.S.C. which §§ trying defendants were to show specifically mailing define each or transmis that Officer Bellucco was biased against sion as an offense. United States v. See personal defendants because of animosity, DeFiore, al., 763, 757, (2d et 720 F.2d 765-66 they were able to make that argument to Cir.1983). The statute before us contains the jury quite clearly forcefully even comparable
no definition. view Our follows without reference to administrative that of other eight circuits that have con charges. issue, sidered the either with respect to 18 Pe- judgments convicting Michael A. 1202(a), U.S.C. 922 or U.S.C.App. § § lusio and Thomas A. Pelusio of the offenses provides any convicted felon charged in Counts I and II of the indict- receives, possеsses, transports “who ment, respectively, are judg- affirmed. The commerce ... affecting commerce V, ments convicting them Counts IV and firearm” is of a guilty crime.3 are reversed and respectively, remanded to We have examined the other claims the district court with directions to dismiss error asserted defendants and find these two counts. them to judge be meritless. The trial required under the Sixth Amendment WINTER, Judge, dissenting Circuit Bellucco, to testimony strikе the of Officer part concurring part; who asserted privi- his Fifth Amendment I Since would affirm the convictions on
lege attempted when the defendants V, IV I counts dissent. respectfully cross-examine regarding him de- pending
partmental charges First, against him. The language “receive firearm
charges wholly unrelated this case ammunition” seems to me to state that a
or to any brought matters out on the of a receipt gun and ammunition is twо
government’s crimes, direct examination of the wit- whether or items are simul- Indeed, Second,
ness. they pertained taneously to events if purpose received.
postdating events this case. The legislation prevent is to access to sought
defendants simply explore firearms indicted or convicted felons be- general
witness’ credibility by cross-exam- cause of the will use them danger
ining respect crimes, him with danger cоllateral matters. to commit further is Oliver, denied, supra, 861, Cir.), 950, In addition to United v. (7th States cert. 421 U.S. Frankenberry, see United v. 1683, (1975) 696 F.2d 44 L.Ed.2d 239, (3d Cir.1982) (§ 922(h)); Powers, United 244-46 (§ 1202(a)); United States v. 572 F.2d Marino, States v. 682 F.2d 453-55 (8th Cir.1978) (§ 922(h)); Brown 150-52 Mason, Cir.1982) 12-2(a)); (§ United States v. States, (9th Cir.1980) United 623 F.2d 56-59 (4th Cir.1979) (§ 922(h)); 611 F.2d 50-52 Valentine, (§ 922(a)(6)); States v. McCrary, United States v. 325-28 (10th Cir.1983) 922(h), (§§ 292-94 (5th 1981) (§ 1202(a)); United States Cir. 1202(a)). Each cases dealt with simul of these Hodges, (5th Cir.1980) 628 F.2d 351-52 receipt gun; Oliver than one taneous of more Carty, (§§ 922(h), 1202(a)); precise itself dealt with issue before (5th (§ 922(i)); 1971) 447 F.2d 965-66 Cir. and am court —simultaneous Rosenbarger, United States v. munition. denied, (6th Cir.1976), single case Our research has not uncovered (1977) 97 holding contrary. Calhoun, *9 (§ 1202(a)); United States v. firearm is fully when loaded greater
much or the weapon than when
received are obtained. not both
ammunition but language purpose
Both to the result contrary
statute thus seem I concur in majority. Since
reached opinion, Judge Mansfield’s
the remainder of all counts. convictions on
I affirm the would America,
UNITED STATES
Plaintiff-Appellee, BACCOLLO,
Dominick
Defendant-Appellant. 306, Docket
No. 83-1181. Appeals, States Court of Circuit.
Second
Argued 1983. Oct.
Decided Dec.