Can a jury infer from a defendant's unexplained possession of recently stolen property that he participated in the theft?

Appellants also argue that their due process rights were violated by the trial court's instruction that the jury could infer from a defendant's unexplained possession of recently stolen property that he participated in the theft. They argue that this inference no longer accords with reality because the offense of robbery has become specialized and "it is most common for two separate parties the thief and the fence each to perform a specialized task entailing different risks and 'skills.' " We have most recently considered the validity of a similar inference in United States v. Tavoularis, 515 F.2d 1070, 1074-75 (2d Cir. 1975). In Tavoularis we held that the inference "in light of the other evidence in the case . . . would verge on the irrational." Id. at 1075. Thus we declined to decide "whether, in the abstract, the inference of participation in the theft from unexplained possession of recently stolen goods comports with due process requirements . . . ." Id. at 1074-75. In Tavoularis the government's own evidence tended to show that the defendant had not participated in the theft, but was merely a middleman. We noted that "(i) t may well be that a factor relevant to the determination of (the validity of the inference) in any particular case would be whether, on the one hand, the inference was

Page 755