U.S. v. Rosa

Citation17 F.3d 1531
Decision Date23 February 1994
Docket NumberD,Nos. 430-433,s. 430-433
PartiesUNITED STATES of America, Appellee, v. Peter ROSA, also known as Pete Rosa, Howard Lipson, also known as Howie Lipson, Thomas Czys, also known as Tommy Czys, and Nisim Shmariahu, also known as Nino Shmariahu, Defendants-Appellants. ockets 93-1120, 93-1121, 93-1160 and 93-1219.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Daniel A. Nardello, Assistant United States Attorney, New York, New York (Zachary W. Carter, United States Attorney for the Eastern District of New York, Brooklyn, New York, Maria L. Zanfini, Nelson W. Cunningham, Assistant United States Attorneys, New York, New York, on the brief), for Appellee.

Ruth M. Liebesman, New York, New York, for Defendant-Appellant Peter Rosa.

Robert A. Ugelow, Brooklyn, New York, for Defendant-Appellant Howard Lipson.

Joseph W. Ryan, Jr., Uniondale, New York, for Defendant-Appellant Thomas Czys.

Michael F. Bachner, New York, New York, for Defendant-Appellant Nisim Shmariahu.

Before OAKES, KEARSE, and ALTIMARI, Circuit Judges.

KEARSE, Circuit Judge:

Defendants Peter Rosa, Howard Lipson, Thomas Czys, and Nisim Shmariahu appeal from judgments entered in the United States District Court for the Eastern District of New York following a jury trial before John S. Martin, Jr., Judge, sitting by designation, convicting them of conspiring, in violation of 18 U.S.C. Sec. 371 (1988), to receive stolen goods in violation of 18 U.S.C. Sec. 2315 (1988). The defendants were sentenced principally to serve the following terms of imprisonment, each to be followed by three years' supervised release: Rosa 49 months, Lipson 24 months, Czys 21 months, and Shmariahu 27 months. On appeal, defendants principally raise issues of venue with respect to an earlier trial in another district, double jeopardy, and insufficiency of the evidence. They also challenge their sentences. For the reasons below, we reject their contentions and affirm the judgments.


The present appeals arise out of the prosecution and two trials of appellants, along with one Joseph Fratta, who was acquitted, for conspiracy to receive and resell stolen goods, primarily silver and jewelry. The evidence presented at both trials included the testimony of special agent David Maniquis of the Federal Bureau of Investigation ("FBI"), who had an undercover role in the investigation; the testimony of confidential informant Aaron Rosen; some two dozen tape recordings of conversations between those witnesses and the defendants other than Shmariahu; and evidence of telephone calls between the residences of Rosa and Shmariahu. Taken in the light most favorable to the government, the evidence revealed the following.

A. The Events

In July 1991, Rosen, who had been arrested and had entered into a cooperation agreement with the government, met with Rosa at a restaurant in Brooklyn. Acting on instructions from the FBI, Rosen told Rosa he had been arrested for selling counterfeit perfume. Rosa responded that Rosen should not do stupid things and that the next time he should consult Rosa before doing anything.

On August 7, 1991, Rosen met Rosa and Joseph "Joey" Fratta at a cafe in Manhattan. Rosa told Rosen to bring Rosa "[a]ny kind of cologne, any that kind of stuff, that's that's [sic] not good.... Bring it to Joey, we'll take all you got." Rosa also told Rosen, "[a]nything you got take it to him first"; "[n]o matter what it is give it to him. Bring it to Joe." Fratta said, "just bring it to me and I gonna be responsible."

On August 16, Rosen met Fratta at a social club in Manhattan. During this meeting, Rosen told Fratta that he knew "a Russian guy" who could get "gold and diamonds." Fratta responded, "[i]t's swag, it's hot, swag gold. It's gotta be. I don't know anybody off the top of my head. Pete, Pete [Rosa] may have somebody." Fratta then questioned Rosen about his source for the "hot" merchandise and said he would talk to Rosa about it. A few days later Rosen received a call from Rosa instructing him to take his source "to Joey" and to call Rosa when the source was available for business.

On August 27, Rosen met Rosa at the Brooklyn restaurant where the July meeting had occurred (the "Brooklyn restaurant") and proffered a bar of silver as a sample for a larger transaction, along with a price list of other goods his source had for sale. Rosa agreed to meet with Rosen's source. On August 28, Rosen introduced undercover FBI agent Maniquis as the source of the supposedly stolen silver. (In fact, the silver and all of the supposedly stolen items brought to New York came from a government warehouse in Washington, D.C.) Repeatedly cross-examining Maniquis as to whether he was a police officer and threatening him with retribution if he were, Rosa agreed to buy silver from him at approximately 2/3 of the market rate for that commodity. Maniquis showed Rosa a sample 100-ounce bar and pointed out the bar's engraved serial numbers, stating that the silver would have to be sold outside of New York; Rosa agreed. The two then discussed possible future silver deals, including one for 900 pounds during the second week of September On August 30, Rosen and Maniquis met Rosa at another location in Brooklyn to transfer the remaining 24 100-ounce silver bars that Rosa had agreed to purchase. Rosa was accompanied by Czys, who Rosa said was to assist in the transaction. During this meeting, Rosa indicated that he did not have sufficient funds with him, and the group agreed to meet later in the day at the Brooklyn restaurant to complete the transaction. When they reconvened, Rosa told Maniquis to give his truck keys to Czys, who would transfer the silver to the buyer's car in the parking lot. Rosen saw Shmariahu get out of his car to help Czys when it became apparent that the silver was too heavy for one person to move. Czys and Shmariahu transferred the silver to the trunk of Shmariahu's car, while Rosa paid Maniquis $6,400 in cash.

and one for 2,000 pounds sometime in October. Maniquis told Rosa that the original source of the silver was a man who was about to retire from his job with a silver company. Despite expressing concern that the source, if caught, would betray them to the authorities, Rosa agreed to buy 25 100-ounce bars on August 30. Rosa took the sample 100-ounce bar with him when he left the meeting; a surveillance agent followed him to the building in which Lipson lived.

Rosa said he was also interested in purchasing stolen watches and jewelry and could fence various forms of electronic equipment. Maniquis and Rosa concluded their meeting with a discussion of the possible sale of "warm" watches. Maniquis warned that the serial numbers would have to be removed, and Rosa said that they would be because, "I deal only with professionals." Rosa also promised that the watches would be sold outside of New York.

On September 10, Rosa, Maniquis, and Rosen met again at the Brooklyn restaurant; Lipson also was present. As previously requested by Rosa, Maniquis proffered a list of "stolen" watches he had for sale; the list itemized each of the 17 watches' estimated actual value and Maniquis's asking price, which in each case was approximately 20% of the estimated actual value. Maniquis also gave Rosa a gold Omega watch as a sample. Rosa agreed in principle to the transaction, indicated that the actual transfer would take place in Lipson's mother's apartment, and stated that the watches would be sold outside of New York. The meeting concluded with a discussion of a possible future deal for 5,600 pounds of silver, and the confirmation of their agreement for a sale on September 19 of 1,000 pounds of silver. For that delivery, Lipson volunteered to provide a van.

On September 12, Maniquis met Rosa and Rosen at the Brooklyn restaurant and gave Rosa a bag with the supposedly stolen watches, after which Rosa and Rosen went to Rosa's Brooklyn home and there met Shmariahu. After Shmariahu performed an acid test on the watches to verify their gold content, discarding one that he said was not gold, he asked Rosa whether Rosen could be trusted. When Rosa vouched for him, Shmariahu gave Rosa cash for the watches; Rosa in turn gave Rosen $7,000 to give to Maniquis, plus $700 to keep as a commission.

On September 23, Rosa and Rosen met at the Brooklyn restaurant to arrange a sale of jewelry that Rosen said Maniquis had received from a cousin in Florida, who had acquired it under circumstances that Rosen said were "not our business." Once again the list of available items showed estimated actual values and asking prices; this time the asking prices were generally 10-20% of the values listed. Rosa agreed to meet Maniquis on September 26 to buy the jewelry. He said, "[T]hey're not gonna put us in jail unless [Maniquis] is wired."

On the afternoon of September 26, when Maniquis went to the agreed meeting place to transfer the jewelry, only Rosen was there, saying that Rosa had had an emergency and could not meet then. Later that day, Rosa telephoned Maniquis at a number in New Jersey and said he could meet Maniquis at 9 p.m. Maniquis said he would bring the jewelry back to Brooklyn at that time. The two, with Rosen, met at 9 p.m., and Maniquis delivered the jewelry to Rosa, agreeing that Rosa could pay Rosen later. Later that evening, Rosa paid Rosen $8,500 for the jewelry. At Rosa's request, Rosen returned $100 of this to be paid to Lipson.

In the 9 p.m. meeting, Maniquis said he would soon have available the 5,600 pounds of silver discussed on September 10. Rosa said his buyer would prefer to take the silver in installments. He said the buyer could handle any quantity of stolen jewelry, gold, or silver bars, and could provide $700,000 on a day's notice, but did not want to take possession of such a large quantity of silver at one time: "Cause you know what he said, he says, 'Pete, if they come with three, four thousand pounds, what happens, God...

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