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February 11, 1972

James RISPO and George Rispo

John Morgan Davis, District Judge.

The opinion of the court was delivered by: DAVIS

Presently before this Court is defendants' Motion for a new trial or judgment of acquittal. The defendants stand convicted by this Court sitting with a jury on all three counts of an Indictment charging them with transportation of a stolen firearm in interstate commerce, *fn1" transfer of ten firearms to a person who is a resident of another state, *fn2" and conspiracy as to both substantive offenses. *fn3"

 At trial, the following facts were revealed. On October 12, 1968, certain firearms were stolen from the home of one Martin M. Maliner. During November of the same year, both defendants, residents of Philadelphia, arranged through one Martin Pecarsky to sell a pistol, identified as having belonged to Maliner, to Sergeant Higby of the Pemberton Township, New Jersey, Police Department. The sale was consummated when Pecarsky picked up the pistol at George Rispo's house and transported it to Higby in New Jersey. In December, a subsequent sale of ten handguns, also identified as having belonged to Maliner, was arranged through direct telephone conversations between the defendants and Sergeant Higby. The purchaser was Trooper Walter Wasyluk, of the New Jersey State Police. At this second sale which took place in Pennsylvania but was made to a resident of New Jersey, James Rispo was present. During a later valid search of George Rispo's home, two shotguns were found which also were identified as having been taken in the burglary of Maliner's home.

 The defendants allege several errors in the trial of the case and we shall consider them now.


 At the end of the defendant's trial, this Court instructed the jury that it could infer from the defendants' unexplained possession of recently stolen firearms, knowledge on their part that the guns actually were stolen. This particular point of law was given to the jury because included among the elements of the crime charged in the first Count of the Indictment was one requiring knowledge on the part of the offender that the weapons involved were stolen. *fn4" The propriety of such an instruction has long been accepted. Rugendorf v. United States, 376 U.S. 528, 84 S. Ct. 825, 11 L. Ed. 2d 887; United States v. Pounds, 323 F.2d 419 (3rd Cir. 1963). Defendants, however, contend that the Court erred in giving this instruction in light of Commonwealth v. Owens, 441 Pa. 318, 271 A. 2d 230 (1970) in which the Pennsylvania Supreme Court reversed a conviction based primarily upon an application of the same "knowledge presumption" involved herein. The potential force of this decision upon the case at bar arises not only from the fact that it relates to the criminal law of the state in which this district is situated but also from the fact that it is founded primarily upon two recent Supreme Court cases: Leary v. United States, 395 U.S. 6, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969) and Turner v. United States, 396 U.S. 398, 90 S. Ct. 642, 24 L. Ed. 2d 610 (1960). Having carefully examined these cases we find that neither the Leary and Turner cases nor the Owens case is determinative of the validity of the instructions given by this Court in the case at bar.

 Leary and Turner were convicted under separate federal statutes, relating to marijuana and narcotic drugs respectively, each of which contained a similar passage allowing a trial court to presume from mere possession of marijuana or of a narcotic drug, knowledge on the part of the possessor that it was illegally imported into the United States. *fn5"

 In the Leary case, which the Turner case followed, the Supreme Court determined that a criminal statutory presumption is unconstitutional "unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend." Leary v. United States, supra, 395 U.S. at p. 36, 89 S. Ct. at p. 1548. The Court examined the sources of marijuana and discovered that the size of the domestic harvest had greatly increased since the law was passed. So significant in quantity -- and apparently in quality -- had the home grown variety become that the user himself could not necessarily determine whether his marijuana had been imported or not. In overturning the conviction, the Court concluded that the underlying premise of the presumption was no longer factually valid and thus the presumption itself could not constitutionally serve as a basis for a conviction.

 In considering the Turner conviction, the Court separated the two types of narcotic drugs involved. As to cocaine, which it found to be grown domestically, the Court echoed its decision in Leary. But as to heroin, which it found to be almost entirely imported, the Court let the presumption stand.

 This "more likely than not" test is the same test that the Pennsylvania Supreme Court adopted in weighing the same presumption in Owens. Commonwealth v. Owens, supra. Had Owens and the case at bar involved a statutory presumption as did Leary and Turner, Owens would be a strong precedent for us. But the Owens case did not, and the case at bar does not, involve a statutory presumption but rather a presumption which is, in essence, "a long recognized rule of Common Law. I Wigmore, § 152." United States v. Coppola, 424 F.2d 991 (2nd Cir. 1970). The significance of this difference was set forth in United States v. Hood, 422 F.2d 737, at p. 741, et seq., (7th Cir. 1970):

The cases cited by the defendant involve the constitutionality of presumptions created by statute. In such statutory presumption cases the court must ask whether the legislature could determine "with substantial assurance that the presumed fact is more likely than not to flow from the proved fact * * *." Leary v. United States, 395 U.S. 6, 36, 89 S. Ct. 1532, 1548, 23 L. Ed. 2d 57 (1969). When testing a common law presumption in a jury instruction a court is faced with a different question, namely, whether the facts before it indicate that the presumed fact is more likely than not to flow from the proven fact in the given case. Since a legislative enactment is not involved and the accompanying policy against legislative interference with the presumption of innocence is inapplicable, the abstract rule of law embodied in the jury instruction need not be tested apart from the facts before the court.

 Since the validity of a Common Law presumption must be determined on a case by case basis, we cannot blindly follow Owens as the defendants would have us do. Even the Pennsylvania Supreme Court realized the limited scope of its decision noting in its Opinion that it had "little doubt that the knowledge presumption concerning receipt of stolen goods is constitutionally infirm, at least as applied to the circumstances of this case." Commonwealth v. Owens, supra, 441 Pa. at p. 324, 271 A. 2d at p. 233 (emphasis ours). Owens can merely serve as a guide for us as to what kind of factual situations the presumption ought not to apply.

 In Owens, the prosecution only showed that defendant had sold a hand gun, apparently of not uncommon make, that had been reported stolen. The unfortunate popularity of hand guns and the common uninhibited selling and trading of these "Saturday Night Specials" on the street corners in the unhappier neighborhoods of urban America, cast doubt upon the question of whether it was more likely than not that Owens knew if the gun he possessed had been stolen. The prosecution, therefore, could not employ the presumption alone to ...

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