Nicolopoulos v. United States, 6269.

• Decision Date: 27 May 1964
• Docket Number: No. 6269.,6269.
• Citation: 332 F.2d 247
• Parties: Nicholas NICOLOPOULOS, Defendant, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — First Circuit

332 F.2d 247 (1964)

Nicholas NICOLOPOULOS, Defendant, Appellant, v. UNITED STATES of America, Appellee.

No. 6269.

United States Court of Appeals First Circuit.

Heard April 7, 1964.

Decided May 27, 1964.

Manuel Katz, Boston, Mass., with whom Paul T. Smith and Daniel Klubock, Boston, Mass., were on brief, for appellant.

William J. Koen, Asst. U. S. Atty., with whom W. Arthur Garrity, Jr., U. S. Atty., was on brief, for appellee.

Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.

ALDRICH, Circuit Judge.

The defendant and one other, following pleas by other alleged conspirators, including one Massahos, were tried on a joint indictment for conspiracy and the substantive offense of causing the transportation of stolen firearms in interstate commerce knowing the same to have been stolen. 15 U.S.C. § 902(g).¹ At the close of the government's case the other defendant was ordered acquitted. Defendant was found guilty on both counts and he appeals.

The court charged the jury that conviction on the conspiracy count required an "agreement" between the defendant and Massahos to transport the guns in question from New Hampshire to Massachusetts, and thereby perhaps implicitly required the jury to find that the defendant had knowledge that the transportation involved the crossing of a state line. With respect to the substantive count the charge contained not even that much reference to knowledge. Yet under this statute, whatever else may be required,² it must be that "causing" interstate transportation requires knowledge on the part of the defendant, or, at least, reasonable grounds to know, that his conduct involves, or will result in, such commerce. Cf. Pereira v. United States, 1954, 347 U.S. 1, 9, 74 S.Ct. 358, 98 L.Ed. 435; United States v. Sheridan, 1946, 329 U.S. 379, 391, 67 S.Ct. 332, 91 L.Ed. 359. In an extended record we find no basis for a finding that the defendant had even reason to know that the two guns in question either had been or were to be so transported.

The defendant lived in Chelmsford, Massachusetts, as did Massahos. Massahos operated a gasoline filling station in Salem, New Hampshire. "On the late afternoon or early evening" of October 13, 1959, Massahos telephoned defendant's home and spoke to defendant. So far as appears nothing was said as to where he was calling from. The indefinite specification of the hour would not, without more, warrant a finding that defendant knew he was still at work. In fact Massahos was calling from Salem, where he had the guns.³ Massahos told defendant that one Bonyman "had come in with these weapons;" that they were stolen; that Massahos had bought them, but had no use for them. "I told him how much I had paid for them and he told me to bring them down to his house" and he would pay the same amount. Bonyman was known to defendant as a...