Staley, Gibbons and James Rosen,*fn* Circuit Judges.
The appellants James Rispo (72-1371) and George Rispo (72-1461) appeal from judgments sentencing them following their conviction on a three-count indictment which charges them with transporting a stolen firearm in interstate commerce, 15 U.S.C. § 902(g), selling firearms without a license to persons known to be residents of a state other than that in which they resided, 18 U.S.C. § 922(a)(5) and conspiring to commit those substantive offenses. 18 U.S.C. § 371. The appellants are brothers and were represented by the same attorney in the district court. That attorney here represents George Rispo, while James Rispo has on appeal retained separate counsel.
Contentions of George Rispo
George Rispo contends that the Government failed to prove he had the requisite criminal intent. There was ample evidence that the guns were recently stolen and the court charged that the jury could infer knowledge from this fact. If that charge was correct (see infra) there was evidence to sustain the jury's verdict. George Rispo also contends that the court improperly admitted certain evidence of other offenses. The evidence in question was admissible under United States v. Carter, 401 F.2d 748 (3d Cir. 1968), cert. denied, 393 U.S. 1103, 89 S. Ct. 905, 21 L. Ed. 2d 797 (1969), since it related to events inextricably a part of the history of the guilty acts charged in the indictment. Each other evidentiary ruling on which George Rispo relies was either correct, not the subject of an objection, or harmless.
Contentions Common to George and James Rispo
Both appellants contend that the court's charge pertaining to the inference which the jury might draw from the possession of recently stolen property was in error. The case involves the sale of an unusual hand gun of Russian manufacture, part of a large private gun collection recently stolen. In addition to the gun referred to in the indictment a number of unusual weapons from the same collection were by the evidence placed in appellants' possession or control. Appellants concede that the instruction given was correct under Rugendorf v. United States, 376 U.S. 528, 84 S. Ct. 825, 11 L. Ed. 2d 887 (1964), and United States v. Pounds, 323 F.2d 419 (3d Cir. 1963) (per curiam). They contend, however, that the authority of these cases has been undermined by 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 (1970), both of which dealt with statutory presumptions. After the Turner decision we reconsidered the instruction that possession of recently stolen property is circumstantial evidence from which the jury can infer scienter. United States v. Bamberger, 456 F.2d 1119, 1132-1135 (3d Cir. 1972). We held that such an instruction would be improper, absent proof of actual or constructive possession of the stolen property. Considering the evidence of such possession in this case, the court correctly charged that possession of the recently stolen property, not satisfactorily explained, was a circumstance from which the jury could infer that the persons in possession knew the property was stolen.
Contentions of James Rispo
(1) Respecting Cross-Examination of Defense Witnesses
James Rispo contends that it was error to permit the Government, in cross-examination of James Zimmie, a character witness for the defense, to inquire into an arrest for receiving stolen goods in January, 1969, and a conviction for that offense in June, 1969, because Zimmie had only testified to the reputation of the defendants in November and December, 1968. Ordinarily cross-examination of character witnesses as to their familiarity with events bearing upon a defendant's reputation, such as arrests and convictions, is a matter within the sound discretion of the trial court. Michelson v. United States, 335 U.S. 469, 69 S. Ct. 213, 93 L. Ed. 168 (1948); United States v. Polack, 442 F.2d 446, 447 (3d Cir.), cert. denied, 403 U.S. 931, 91 S. Ct. 2253, 29 L. Ed. 2d 710 (1971). It has been suggested that character evidence should be confined to a defendant's reputation at the time of commission of the crime, for fear that a false public impression might have been created by the defendant's arrest and charge for the very act for which he is being tried. See United States v. Null, 415 F.2d 1178 (4th Cir. 1969); V Wigmore, Evidence, § 1618. The arrest about which Zimmie was cross-examined took place during the period of the conspiracy charged in the indictment. If reference to the subsequent conviction was error it was harmless for several reasons. It was largely cumulative of the impact made by the proper reference to the arrest. It did not bear upon reputation tainted by the arrest and charge for which James Rispo was on trial. Finally, and conclusively, James Rispo took the stand in his own defense for the purpose of impeaching the testimony of a different prosecution witness. Thus his conviction for a crime involving crimen falsi was admissible against him. E.g., United States v. White, 446 F.2d 1280, 1283 (3d Cir. 1971); United States v. Mitchell, 427 F.2d 644, 647 (3d Cir. 1970); United States v. Evans, 398 F.2d 159, 164 (3d Cir. 1968); United States v. Remco, 388 F.2d 783 (3d Cir. 1968). The record makes clear that James Rispo's decision to testify was in no way related to Zimmie's cross-examination.
(2) The Joint Representation Issue
James and George Rispo retained the same privately compensated attorney. James now claims that he was deprived of the effective assistance of counsel (1) because there was a conflict of interest in the joint representation of him and his brother George, and (2) because the representation afforded him was below the level of normal competency.
The conflict of interest arose, according to James, because he, unlike George, had a criminal record. This, James contends, presented several dilemmas to the joint attorney. If, for example, counsel had used a character witness only for George, James would have suffered by comparison from the absence of such testimony on his behalf. If character evidence were introduced on behalf of both, James would have been (as he was in fact) exposed to the ...