U.S. v. Skowronski, 1391

• Decision Date: 29 June 1992
• Docket Number: D,No. 1391,1391
• Citation: 968 F.2d 242
• Parties: UNITED STATES of America, Appellee, v. Richard SKOWRONSKI, Defendant-Appellant. ocket 92-1002.
• Court: U.S. Court of Appeals — Second Circuit

Page 242

968 F.2d 242

UNITED STATES of America, Appellee, v. Richard SKOWRONSKI, Defendant-Appellant.

No. 1391, Docket 92-1002.

United States Court of Appeals, Second Circuit.

Argued April 23, 1992.

Decided June 29, 1992.

James B. Comey, Asst. U.S. Atty., New York City (Otto G. Obermaier, U.S. Atty., S.D.N.Y., on the brief), for appellee.

John Nicholas Iannuzzi, New York City (Iannuzzi and Iannuzzi, on the brief), for defendant-appellant.

Before: OAKES, Chief Judge, KEARSE and WALKER, Circuit Judges.

KEARSE, Circuit Judge:

Defendant Richard Skowronski appeals from a judgment entered in the United States District Court for the Southern District of New York following a jury trial before John M. Cannella, Judge, convicting him of conspiring to obstruct, delay, and affect commerce by robbery, in violation of 18 U.S.C. § 1951 (1988) ("Hobbs Act" or "Act"). He was sentenced principally to 57 months' imprisonment, to be followed by a three-year term of supervised release. On appeal, Skowronski contends chiefly (1) that the court erred in admitting certain evidence, (2) that the properly admitted evidence was insufficient to support his conviction, and (3) that the court erred in computing his sentence. For the reasons below, we affirm the judgment.

I. BACKGROUND

The government's proof at trial consisted principally of telephone conversations intercepted by court-authorized wiretap, and testimony of Federal Bureau of Investigation ("FBI") agents who interviewed or conducted surveillance of Skowronski. The principal wiretap evidence came from the Long Island home telephone of one Lawrence Tinnirello and included recorded conversations between, inter alios, Tinnirello and his cousin Joseph DiSomma, who was Skowronski's closest friend, and between Tinnirello and alleged coconspirator Lawrence Taylor. Taken in the light most favorable to the government, the evidence showed the following.

In late 1989, Richard Skowronski, then a college student, worked part-time at the Telco Jewelry ("Telco") store on Avenue U in Brooklyn, New York. The store carried an inventory worth about $300,000; when closed, it was protected by security gates lowered over the door and display windows. From Thanksgiving through the end of the Christmas season, the store remained open until 9:00 p.m., and during evening business hours it was protected by security guards. The store was managed by Skowronski's mother. In addition to Skowronski and his mother, it employed three women, and the owner testified that store policy normally required that at least three employees be present at all times. Skowronski's mother, called to testify in his behalf, testified that at all times during the Christmas season there were at least four employees plus a guard in the store, and that at times the total rose to seven.

In November 1989, the wiretap on Tinnirello's telephone alerted surveillance agents to a plan by, inter alios, Tinnirello, DiSomma, Taylor, and Skowronski (generally referred to in the conversations as "Richie" or "the kid"), to rob the Avenue U Telco store. On November 18, Tinnirello told Taylor that "the kid" wanted them to rob his store and that the kid would "stand up." Telco also owned a jewelry store on 18th Avenue in Brooklyn, and in describing the plan to rob Telco's Avenue U store in a week or two, Tinnirello stated that he would employ the same method used recently in robbing another jewelry store on 18th Avenue "[t]hat, uh, that was next door to the other store that they own." Tinnirello said the robbers had, inter alia, "put the gates down," and that is what he planned.

On November 20, Tinnirello left a message on DiSomma's answering machine, saying that he "want[ed] to meet Richie this week and take a look at that thing." DiSomma returned the call the next day, and Tinnirello confirmed that he planned to go to Brooklyn. DiSomma said that "Richie" had mentioned "it" and stated that "he said whatever night, just give me a day's, a night's notice...."

On November 23, Tinnirello called one Charles Lachterman and, explaining that he would talk "very vaguely," said he was going to Brooklyn. He said, "I got an Shortly after noon on December 13, FBI agents visited Skowronski, who was then baby-sitting at his sister's home, and told him they had information that the Avenue U Telco store was to be robbed and that he was involved. The agents sought both to prevent the robbery and to encourage Skowronski to cooperate in their investigation. They did not reveal the wiretap on Tinnirello's telephone, however, implying that their information had come from one of Skowronski's coworkers. Skowronski denied any knowledge of or involvement in a robbery plan.

                inside guy," and "[i]t's just him and two girls, and he wants to take the whole fuckin' place....  Now my friend works in there.   You understand?   So it's a setup."   Tinnirello said he intended to reconnoiter, to "go there and buy somethin', a chain or somethin'," in order to "see how much money is involved."   On November 27, Tinnirello told DiSomma that he and Taylor would go to case the Telco store the following day, and assured DiSomma that he would alert Skowronski in advance.  "I have Richie's beeper.   I'm gonna beep him first," in order not to shock him, causing him to "faint"--or worse, causing him to greet Tinnirello with familiarity
                

Soon after the agents departed, Skowronski's sister returned home. Skowronski promptly left and drove several blocks to a pay telephone, where he appeared to make a total of three calls. He then drove to his own home, which was a few blocks away. Minutes later, DiSomma arrived.

At about 1:30, Skowronski and DiSomma left in the latter's car and drove several blocks to another pay telephone, where they called Tinnirello. DiSomma opened this call by telling his cousin, "We got trouble." When Tinnirello asked what had happened, DiSomma urged him to go to a telephone booth and call back. When Tinnirello persisted in his questioning, DiSomma repeated that Tinnirello should go to a pay telephone, and Skowronski took the phone and urged him, "Now." When Tinnirello continued to resist going to a pay telephone, insisting that his home telephone was not tapped, DiSomma told him that the trouble involved Tinnirello, DiSomma, and "my friend," and answered affirmatively when Tinnirello asked, "Who, Richie?" DiSomma tried to impress on Tinnirello that the matter was "serious," and Skowronski emphasized, "Very." Tinnirello asked, "Who's that, Richie?" and DiSomma responded, "Yeah. He was paid a visit today." After Tinnirello continued to press for details of the problem, Skowronski again took the telephone and said, "Lar, go to a pay phone, dude."

About an hour after that conversation concluded, DiSomma telephoned Tinnirello again at his home, and the two pondered the source of the FBI's information and discussed the reliability of Skowronski not to inform on them. DiSomma reassured Tinnirello that Skowronski was "a stand-up kid." DiSomma also said he "d[id]n't wanna see the kid get fired," and he and Tinnirello then discussed what Telco's owner should be told about the FBI's visit to Skowronski, and what explanation would be given to "Richie's mother."

Eventually, the known participants in the plan were arrested. Skowronski, Taylor, and another were charged in a one-count indictment with conspiring to obstruct, delay, and affect commerce by robbing the Avenue U Telco store, in violation of the Hobbs Act, 18 U.S.C. § 1951. Tinnirello, Lachterman, and DiSomma were charged in a separate indictment with the same Hobbs Act conspiracy and with other offenses.

Skowronski was tried alone because both of his co-defendants died prior to trial. At his first trial, the jury was unable to agree on a verdict. At the retrial, the jury found him guilty as charged. He was sentenced as indicated above, and this appeal followed.

II. DISCUSSION

On appeal, Skowronski contends principally that the trial court erred in admitting evidence, that the properly admitted evidence was insufficient to convict him, and that the court erred in calculating his sentence. We find no merit in his contentions.

A. The Challenges to the Admission of Evidence

Skowronski contends that the introduction of expert testimony by an FBI agent explaining some of the terms used in the taped telephone conversations was unfairly prejudicial because the testimony introduced the specter of organized crime. He also claims that evidence introduced about the other jewelry store robbery referred to by Tinnirello was improperly admitted because it was irrelevant and unduly prejudicial. These contentions need not detain us long.

The trial judge is accorded broad discretion under Fed.R.Evid. 702 to admit expert testimony when he believes it will assist the jury in understanding a question of fact; his decision to admit such testimony will be sustained on appeal unless it is shown to be "manifestly erroneous." Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S.Ct. 1119, 1122, 8 L.Ed.2d 313 (1962); United States v. Torres, 901 F.2d 205, 237 (2d Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 273, 112 L.Ed.2d 229 (1990); United States v. Nersesian, 824 F.2d 1294, 1308 (2d Cir.), cert. denied, 484 U.S. 958, 108 S.Ct. 357, 98 L.Ed.2d 382 (1987); United States v. Cruz, 797 F.2d 90, 96 (2d Cir.1986).

In the present case, the court allowed the government to introduce evidence as to the meanings of terms such as "stand-up" (i.e., unlikely to inform), likely to "flip" (i.e., likely to inform), and "made guy" (i.e., a documented and sworn member of an organized crime family). It was well within the discretion of the court to allow expert testimony as to the specialized meanings of these terms on the ground that the jury might not otherwise be familiar with them. Though Skowronski's insistence on elaboration to the jury of the witness's qualifications in this area necessitated greater airing of the witness's...