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United States v. Marino

July 7, 1982; As Amended July 12, 1982.

UNITED STATES OF AMERICA, APPELLEE
v.
MARINO, ALFONSO, APPELLANT



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Author: Garth

Before: GARTH, BECKER, Circuit Judges and MUIR, District Judge*fn*

Opinion OF THE COURT

GARTH, Circuit Judge.

Alfonso Marino was convicted and sentenced on three counts of unlawful possession of firearms in violation of 18 U.S.C. App. § 1202(a). On appeal, Marino raises two claims. First, he argues that the warrant authorizing the search, which led to the discovery of three firearms in his home was defective under the Supreme Court's decisions in Aguilar v. Texas, 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509 (1964), and Spinelli v. United States, 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584 (1969). Therefore, he contends, the district court erred in refusing to suppress all physical evidence seized as a result of the search. Second, Marino argues that the simultaneous possession of three firearms in his home constituted a single, undifferentiated offense under 18 U.S.C. App. § 1202(a). Thus, he asserts, it was improper to convict and sentence him on three separate counts.

We reject Marino's first contention and hold that the district court properly determined that the search warrant satisfied the Aguilar-Spinelli requirements. We agree with Marino's second contention, however, and we note that the Government does not contest Marino's argument that the simultaneous possession of the three firearms in his home constituted a single offense under section 1202(a), and not three separate offenses. Accordingly, though we affirm the district court's holding as to the adequacy of the search warrant, we will vacate the sentences and remand the case to the district court for the sole purpose of resentencing.

I.

On July 2, 1981, the Pennsylvania State Police, in conjunction with the Philadelphia Police Department, obtained a warrant authorizing a search of Marino's home. The warrant specified as items to be searched for and seized "Stolen Property such as office equipment, Precious Metals, Guns, and monies and Records pertaining to these activities. Also Methamphetamine[,] a Schedule II Controlled Substance." Appendix at 4. The search warrant was issued on the basis of an affidavit supplied by Kenneth K. Anthony, a Pennsylvania State Police Officer, and Lt. James Potocnak, a Philadelphia Police Officer. The affidavit stated that Lt. Potocnak had spoken the day before (on July 1, 1981) with a police informant "who in the last three months had given police information which had led to the arrest of three persons for serious crimes and the securing of evidence against those persons arrested." Appendix at 6. Noting that the informant "has extensive contact with organized crime figures," the affidavit stated that on June 30th and July 1st, 1981, the informant had been inside Marino's house. According to the affidavit, the informant had told the police that while present in Marino's house, he had overheard Marino negotiate with professional burglars over the price of stolen items, including jewelry, bonds, credit cards, silverware, precious metals, office equipment, and guns. The informant also claimed that Marino kept guns near him or on his person while at home. Finally, the affidavit stated that the informant had told the police that he had personally observed Marino exchange drugs and money for stolen goods. See Appendix at 4-6.

The search was conducted on July 2, 1981, with Marino present in his house. In the course of the search, the police found a loaded pistol in the nightstand adjacent to Marino's bed, as well as two rifles in a closet next to the bedroom. On the basis of this evidence a federal grand jury charged Marine on October 6, 1981, with a violation of 18 U.S.C. App. § 1202(a) (1).*fn1 The indictment consisted of three counts charging that Marino, having been convicted of a felony, had on July 2, 1981, possessing a Browning 9 millimeter semi-automatic pistol (Count One), a Marlin .35 caliber rifle (Count Two), and a Remington .270 caliber rifle (Count Three).

Marino filed pretrial motions requesting that the search warrant be controverted, that physical evidence be suppressed, that statements and identifications made as a result of the search be suppressed, and that the informant be produced. In an order of November 20, 1981, the district court denied the motion in all respects except for one; the motion to suppress Marino's statements at the time of his arrest was granted.See Appendix at 12.

On November 30, 1981, a jury was impaneled and on December 1, 1981, Marino was found guilty on all three counts. After he was given a two-year sentence on Count One, a two-year sentence on Count Two consecutive to the sentence on Count One, and a five-year probationary term on Count Three, consecutive to the first two counts, see Appendix at 20, Marino filed a timely notice of appeal.

II.

As we have noted, Marino asserts that the district court erred in holding that the affidavit supporting the issuance of the search warrant provided a sufficient basis upon which to determine probable cause. We find this contention to be without merit.

The affidavit related in detail extensive information concerning the purchase of stolen goods, traffic in illicit drugs, and possession of illegal firearms, all in Marino's house. It is therefore clear that the information in the affidavit, if accurate, was sufficient to establish probable cause for the search, and Marino does not argue to the contrary. Rather, he argues that there was no basis for concluding that the information giving by the informant was indeed accurate and credible. If there was no basis for concluding ...


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