790 F.2d 1015 (2nd Cir. 1986), 41, United States v. Lanza

Docket Nº:41, 42 and 36, Dockets 85-1053, 85-1108 and 85-1115.
Citation:790 F.2d 1015
Party Name:UNITED STATES of America, Appellee, v. Anthony LANZA, Anthony Nuzio, Vyscheslav Lyubarsky, a/k/a
Case Date:May 07, 1986
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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790 F.2d 1015 (2nd Cir. 1986)

UNITED STATES of America, Appellee,

v.

Anthony LANZA, Anthony Nuzio, Vyscheslav Lyubarsky, a/k/a

"Slava", and Roman Zonesashville, Defendants.

Appeal of Vyscheslav LYUBARSKY, a/k/a "Slava", Roman

Zonesashvili, and Anthony Lanza, Defendants-Appellants.

Nos. 41, 42 and 36, Dockets 85-1053, 85-1108 and 85-1115.

United States Court of Appeals, Second Circuit

May 7, 1986

Argued Sept. 3, 1985.

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Paul E. Summit, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., Warren Neil Eggleston, Asst. U.S. Atty., New York City, of counsel), for appellee.

Malvina Nathanson, Commack, N.Y. (Robert C. Gottlieb, Sussman & Gottlieb, Commack, N.Y., of counsel), for defendant-appellant Vyscheslav Lyubarsky [*].

Barry Bassis, The Legal Aid Society, Federal Defender Services Unit, New York City, for defendant-appellant Roman Zonenashvili.

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Irving Anolik, New York City (Irving Anolik and Joseph Panzer, New York City, of counsel), for defendant-appellant Anthony Lanza.

Before FRIENDLY, [**] PIERCE and PRATT, Circuit Judges.

PIERCE, Circuit Judge:

These appeals are from judgments of conviction in the United States District Court for the Southern District of New York, Inzer B. Wyatt, Judge, after a jury trial for conspiracy to commit wire fraud, in violation of 18 U.S.C. Sec. 371. Appellants Anthony Lanza and Vyscheslav Lyubarsky were sentenced to four years' imprisonment, and appellant Roman Zonenashvili to three years' imprisonment.

Lanza presents three issues on appeal: the sufficiency of the evidence for his conviction; the impact of allowing testimony by the government's principal witness Yan Zubok that he was shown a picture of Lanza at a Federal Bureau of Investigation (FBI) office; and the denial of Lanza's motion for a severance.

Lyubarsky and Zonenashvili contend that certain evidentiary rulings relating to the cross-examination of Zubok and to the proffer of extrinsic impeachment evidence vis-a-vis Zubok deprived them of their right to confront witnesses and to present a defense. Lyubarsky and Zonenashvili also challenge the court's instructions to the jury concerning conscious avoidance with regard to knowledge and specific intent.

We affirm.

BACKGROUND

The government's proof at trial consisted principally of the testimony of Yan Zubok, a cooperating witness, and tape-recorded telephone conversations which Zubok had with both Lyubarsky and Nuzio regarding the alleged conspiracy. Nuzio, a co-defendant, pleaded guilty on the first day of trial and later testified on Lanza's defense case.

Zubok testified that he immigrated to the United States in 1976; in 1980, he found employment in New York City with Lemiro International (Lemiro), a jewelry store owned by Gregory Lekach. Zubok worked intermittently at Lemiro between 1980 and August 1983, during which time he met Lyubarsky. In 1983, Zubok left Lemiro and opened his own jewelry business in Chicago, Illinois, which he named Keyiasso. He later learned that there had been a burglary at Lemiro and suspected that it was a fraudulent burglary to obtain insurance proceeds. He testified that thereafter Lyubarsky suggested to him that they do at Keyiasso "exactly what Lekach did" at Lemiro.

In April, 1984, Zubok went to New York where he met with agents from the FBI. He told the agents of his conversation with Lyubarsky, and thus began his cooperation with the FBI. On April 26, 1984, Zubok met Lyubarsky in Forest Hills, Queens, and Lyubarsky asked him about the safe and alarm system at Keyiasso and told him that he would "talk with people, and ... decide what he will do in my office." The next day Zubok met Lyubarsky in Manhattan and was driven to Bay Ridge, Brooklyn. En route, he told Zubok that he would introduce him to his "boss". Upon arrival, Zubok was introduced to a man later identified by Zubok as Anthony Lanza. At the meeting, Lanza also questioned Zubok about the safe and alarm system at Keyiasso.

On April 30, 1984, Lyubarsky introduced Zubok to Nuzio and Zonenashvili at a restaurant in Brooklyn, at which time Zubok was checked with a metal detector. During the meeting, Nuzio told Zubok that the operation would have to "go the right way" or "we will crush your head". Nuzio inquired about insurance coverage and whether Zubok would need any help in order to raise his inventory to the appropriate level. Zubok told them that Keyiasso

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had $750,000 of insurance coverage and declined further assistance. Zubok also testified that it was "agreed that the [burglary] would take place at the time when [Keyiasso] had somewhere between 500 and 800 thousand dollars worth of merchandise".

On May 2, 1984, Lyubarsky and Zonenashvili met with Zubok at Keyiasso in Chicago, and informed him that he would be visited by individuals who would survey his safe and alarm system. According to the testimony of Zubok's son, Eugene, and Nuzio, on May 7, 1984, Lyubarsky, Zonenashvili and Nuzio inspected the Keyiasso premises.

Three days later, Lyubarsky and Nuzio met Zubok at Kennedy Airport in New York. Zubok was told by Lyubarsky that the operation was proceeding smoothly and that "the most important task now [was] to acquire merchandise." It was the government's theory, as explained in opening argument (Tr. 111), that Zubok's role in the phony burglary scheme was to obtain jewelry on credit and store it in his vault at Keyiasso. After the jewelry was stolen by burglars hired by Lanza, the jewelry was to be divided and held by each of the conspirators until the insurance proceeds were received. During this trip to New York, Zubok met with Lanza, Nuzio and Lyubarsky at a Brooklyn restaurant. During the meeting, Lanza discussed the manner in which the merchandise would be divided between them, and Nuzio again threatened Zubok's life unless he carried out his part of the scheme.

In late May, sometime after an unsuccessful attempt by Lyubarsky, Zonenashvili and Zubok to obtain jewelry on credit, Zubok came to New York and was unexpectedly met at the airport by Lyubarsky, Zonenashvili and Nuzio. They took him to a private social club in Brooklyn, where Lanza joined them. Lanza informed Zubok that the burglars had already been paid $150,000 for their part in the scheme and told him that if he failed to obtain the required merchandise he would be killed.

In addition to testimony by Zubok and Zubok's adult son, Eugene, the government played taped telephone conversations between Nuzio and Zubok. In these tapes, Nuzio is heard to threaten to kill Zubok if he failed to obtain certain merchandise on credit. Nuzio also makes references to "my boss" and to "Tony" during discussions of the scheme.

Only Lanza presented a defense case. He called Nuzio as a witness and Nuzio testified that Lanza was not present at any of the meetings with Zubok, but his testimony otherwise corroborated much of Zubok's testimony. Nuzio testified that the objective of the scheme was to "con" Zubok into obtaining merchandise and giving it, as well as the $150,000 compensation for the supposed burglars, to the three of them, but that there was never any agreement to actually go through with the burglary or to defraud the insurance company. Nuzio testified that Lanza was not his boss and that the references to "my boss" and to "Tony" on the tape recordings were intended to scare Zubok into thinking that Nuzio had powerful "Italians" working with him.

The sole theory of defense for Lyubarsky and Zonenashvili was that while all these events did occur the purpose behind them was not the conspiracy charged in the indictment, i.e., "a scheme to stage a sham burglary at a Chicago, Illinois, jewelry store and thereby to defraud the store's insurance carrier", but...

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