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United States v. Pelusio

decided: December 22, 1983.


Appeals from judgments of the Western District of New York entered after a jury trial before Judge Michael A. Telesca, convicting each appellant of the unlawful receipt, while under indictment for or convicted of a crime punishable by imprisonment for more than one year, of firearms (Counts I and II) and of ammunition (Counts IV and V). 18 U.S.C. §§ 922(h)(1), 924(a) and 2. There was no evidence that the firearms had been received separately from the ammunition. The convictions on Counts I and II are affirmed. The convictions on Counts IV and V are reversed and the case is remanded for dismissal of these two counts. Judge Winter concurs in part and dissents in part in a separate opinion.

Mansfield, Cardamone, and Winter, Circuit Judges. Winter, Circuit Judge, dissenting in part and concurring in part.

Author: Mansfield

MANSFIELD, Circuit Judge:

Michael A. Pelusio (Michael) and Thomas A. Pelusio (Thomas) appeal from a judgment of the Western District of New York, entered after a jury trial before Judge Michael A. Telesca, convicting them of unlawful receipt of firearms and ammunition transported in interstate commerce, 18 U.S.C. §§ 922(h)(1), 924(a) and 2. Michael was convicted of one count of charging receipt of a gun (Count I) and another charging receipt of ammunition (Count IV), while under felony indictment and while having previously been convicted of a felony. Thomas was likewise convicted on two counts (II and IV), charging unlawful receipt of the gun and ammunition while under indictment for a felony. We affirm their convictions of unlawful receipt of the gun (Counts I and II), and reverse their convictions of unlawful receipt of the ammunition (Counts IV and V).

The case arises out of hostilities between an insurgent Rochester gang and the gang "in power" in that city. At approximately noon on August 27, 1982, Gerald Pelusio, a brother of the two defendants, was shot to death at the Rochester home of Paul Comfort, a friend of the Pelusios. At 7:00 P.M. on the same day, apparently in retaliation, the front window of a gambling establishment operated by the gang in power was destroyed by a shotgun blast from a pickup truck identified by color and license plate number as probably owned and operated by the Pelusios. After locating the truck outside of Thomas' Rochester home the Rochester police stationed an unmarked car on the street for purposes of open surveillance and were shortly joined by two more police cars, one marked and the other unmarked. The police were aware that Michael was a convicted felon and that the Pelusios often used and exercised control over a 1976 white and beige Buick bearing New York license plate "18 MFS," owned by Elaine Comfort, wife of Paul Comfort.

While the police were conducting their surveillance Officer Bellucco, who was in the marked police car, noticed a Buick answering this description turn onto the street where the police were parked, following which the Buick pulled over to the side of the street, shut off its lights and started to back away from the police cars. The officers immediately went into action. Two drove their cars to block the front of the Buick, while Officer Bellucco backed his police car past the retreating Buick and cut it off from the rear. As Bellucco exited from his car and approached the Buick, he noticed that the driver was Raymond Sampson, a convicted felon who was a member of the insurgent gang and a friend of the Pelusios and Comfort, and that the two passengers were Thomas (in the front seat) and Michael (on the right rear passenger seat). He heard noises from the inside of the Buick similar to those of shells being ejected from a gun and saw Michael make some "quick motion." Officer Cowley said, "There may be a gun in the car." Officer Bellucco drew his gun, but held it by his side. As he came abreast of the left rear window he noted a Mossberg Pump.12-gauge shotgun in Michael's lap. After the passengers exited the vehicle, Bellucco seized the shotgun, which had a pistol-type grip; a further search of the rear of the car yielded five rounds of.12-gauge shotgun shells.

On October 13, 1982, a six-count indictment was filed against Michael A. Pelusio, Thomas A. Pelusio and Raymond Sampson, charging each in two counts with unlawful receipt of a firearm and unlawful receipt of ammunition in violation of 18 U.S.C. §§ 922(h)(1), 924(a) and 2.*fn1 Sampson's case was severed by the district court prior to trial. Motions by Michael and Thomas to suppress evidence of the seizure of the firearm and ammunition as violative of their Fourth Amendment rights were denied by Judge Telesca after an extended evidentiary hearing.

At trial the evidence not only established the foregoing but also showed that the shotgun found by the police had been purchased by the defendants' brother, David J. Pelusio, two months earlier. Thomas Pelusio testified in his own defense that sitting in the front passenger seat of the Buick he was unaware of the presence of the shotgun, some three feet long, in the lap of his brother Michael in the back seat of the car, and that if he had known that there was a shotgun in the car he would not have entered it. On cross-examination, however, he conceded*fn2 that on December 18, 1981, he had been in a vehicle where a shotgun had been seized, and that on January 20, 1982, he had entered another vehicle with knowledge that there were two shotguns in it.


Defendants contend that evidence of their possession of the shotgun and ammunition should have been suppressed as the fruits of an unlawful arrest and search in violation of the Fourth Amendment. The government replies that the police were justified in making an investigatory stop of the white Buick under the principles of Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), and its progeny.

The legality of an investigatory stop depends on (1) the nature and extent of the government's need for the stop, which must be judged according to the importance of its law enforcement interests under the circumstances, and (2) the reasonableness of the stop, which depends mainly on the degree of police intrusion on the defendants' freedom of movement. United States v. Streifel, 665 F.2d 414, 420-21 (2d Cir. 1981). To make a stop the law enforcement authority must be aware of "specific articulable facts" giving rise to a reasonable suspicion that the individuals to be stopped are engaged in criminal activity. United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (1975); Delaware v. Prouse, 440 U.S. 648, 654, 59 L. Ed. 2d 660, 99 S. Ct. 1391 (1979). Upon review, the court must consider the totality of the circumstances, United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981). The permissible duration and intrusiveness of an investigative stop depend on the extent of the law enforcement interest and the seriousness of the conduct giving rise to a reasonable suspicion of unlawful activity. Dunaway v. New York, 442 U.S. 200, 209, 60 L. Ed. 2d 824, 99 S. Ct. 2248 (1979); Pennsylvania v. Mimms, 434 U.S. 106, 108-09, 54 L. Ed. 2d 331, 98 S. Ct. 330 (1977); Adams v. Williams, 407 U.S. 143, 32 L. Ed. 2d 612, 92 S. Ct. 1921 (1972); Terry v. Ohio, supra, 392 U.S. at 19-20. The longer and more intrusive the stop, the stronger must be the justification for it. Michigan v. Summers, 452 U.S. 692, 69 L. Ed. 2d 340, 101 S. Ct. 2587 (1981); United States v. Vasquez, 638 F.2d 507, 520 (2d Cir. 1980), cert. denied, 454 U.S. 847, 102 S. Ct. 165, 70 L. Ed. 2d 135 (1981). "What might be unreasonable when an officer merely suspects that a minor offense has been committed is not unreasonable when . . . officers have reason to fear that a suspected criminal is armed. The nature of the crime under investigation, the location of the stop, the time of day, the reaction of the suspect to the approach of police are all facts which bear on the issue of reasonableness." United States v. Harley, 682 F.2d 398, 402 (2d Cir. 1982). In that regard, the Supreme Court has recently noted that "roadside encounters between police and suspects are especially hazardous." Michigan v. Long, 463 U.S. 1032, 1049, 77 L. Ed. 2d 1201, 103 S. Ct. 3469, 3480, 51 U.S.L.W. 5231, 5236, (1983). When a lawful investigatory stop reveals facts amounting to probable cause for search and arrest the law enforcement officers may proceed accordingly. See Adams v. Williams, supra, 407 U.S. at 148; Terry v. Ohio, supra, 392 U.S. at 10.

In the present case the law enforcement need was obvious and the police had articulable facts creating grounds for reasonable suspicion of unlawful activity. A member of an insurgent gang, the defendants' brother Gerald, had been murdered earlier in the day; the initial response was the shotgun blasting of the dominant gang's gambling establishment from a truck strongly resembling that owned by the Pelusios. These circumstances alone entitled the police to infer that the second crime had probably been committed by the defendants in retaliation for the murder of their brother and that further crimes might be committed as part of the internecine gang war in progress. Armed participants in these crimes might reasonably be expected to be found in the vicinity of the Pelusios' home. When a 1976 Buick known to be used by the Pelusios turned into the street and, noting the marked police car, shut off its lights and started backing away from the scene, it greatly enhanced the grounds for suspicion, United States v. Harley, supra, 682 F.2d at 401. The police, who were experienced in crime detection, could reasonably conclude that its passengers might be one or more of the Pelusios and that they might be armed. As it turned out, their reasonable suspicion was confirmed.

Given the importance of the law enforcement interest in locating the persons suspected of committing serious crimes that day and in preventing further violence, the police intrusion was reasonable. As the Court noted in Adams v. Williams, supra, 407 U.S. at 145-46, a policeman cannot under such circumstances "simply shrug his shoulders and allow a crime to occur or a criminal to escape." In this case the conduct of the police in temporarily blocking the defendants' car for a stop was "the essence of good police work." Id. at 145. Indeed, the policemen would have been remiss in their duty if they had acted otherwise. The mere interception of a moving vehicle for questioning does not require probable cause, United States v. Brignoni-Ponce, supra, 422 U.S. at 880, and it is not unduly intrusive to require the occupants to step out of an auto even when suspected of lesser crimes. Pennsylvania v. Mimms, supra, 434 U.S. at 109-11. In view of the seriousness of the violent crimes that had been committed and the likelihood that the occupants of the Buick might be armed, which was confirmed by the sound of shells being ejected from a gun, Officer Bellucco acted reasonably in holding his weapon drawn at his side. In any event the intrusion proved to be of minimal duration since the officers within a matter of seconds inadvertently saw in plain view the shotgun in Michael's lap, which in light of the other circumstances provided the requisite probable cause. Coolidge v. New Hampshire, 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022 (1971). Since both the investigative stop and the arrest were proper we affirm the district court's denial of defendants' motion to suppress the resulting evidence.

Defendant Thomas A. Pelusio also contends that there was insufficient evidence to convict him of having knowingly received the shotgun in violation of 18 U.S.C. § 922(h)(1) or of having aided and abetted its receipt by his brother Michael. The standard by which we are governed on review is whether, viewing the evidence most favorably to the government, Glasser v. United States, 315 U.S. 60, 68, 86 L. Ed. 680, 62 S. Ct. 457 (1942), a rational jury could find beyond a reasonable doubt that the defendant had knowingly received the firearm or aided and abetted such receipt by another. Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979). Direct evidence that the weapon was physically placed in the defendant's ...

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