United States v. Zubkoff
Decision Date | 30 September 1969 |
Docket Number | No. 11,Docket 33602.,11 |
Citation | 416 F.2d 141 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Leo ZUBKOFF, Defendant-Appellant. |
Court | U.S. Court of Appeals — Second Circuit |
Paul Ivan Birzon, Buffalo, N. Y., for defendant-appellant.
Richard J. Arcara, Asst. U. S. Atty. (H. Kenneth Schroeder, Jr., U. S. Atty., for the Western District of New York, on the brief), for plaintiff-appellee.
Before LUMBARD, Chief Judge, and SMITH and FEINBERG, Circuit Judges.
Certiorari Denied January 19, 1970. See 90 S.Ct. 684.
In United States v. Palumbo, 401 F.2d 270 (2d Cir.1968), cert. denied, 394 U.S. 947, 89 S.Ct. 1281, 22 L.Ed.2d 480 (1969), this court held that a trial judge has discretion under certain circumstances to prevent the use of prior convictions to impeach a defendant. In this appeal we are told that a conviction should be set aside because the trial judge did not exercise that discretion. For reasons indicated below, we do not agree that reversal is called for.
Appellant Leo Zubkoff was convicted in November 1968, after a three-day jury trial before Harold P. Burke, J., in the United States District Court for the Western District of New York on a three-count indictment charging knowing possession of stolen goods from an interstate shipment, 18 U.S.C. § 659, and conspiracy to violate that section, 18 U. S.C. § 371.1 Appellant wisely makes no attack on the sufficiency of the proof since the evidence of his guilt was very strong. The jury could properly have found the following: At the end of June 1964, 52 automobile radios which had been shipped in interstate commerce were stolen from the loading dock of the Continental Transportation Lines, Inc. at its terminal in Buffalo, New York. The wholesale cost of each radio was $33, and the retail price was about $55. Appellant Zubkoff ran a junk yard which was a mere 70 yards from the place where the theft occurred. In early July 1964, Donald J. Daniels, a used car dealer, purchased an automobile radio from Zubkoff for $12.50 cash. This radio was subsequently confiscated by agents of the Federal Bureau of Investigation as being part of the stolen shipment. Although Daniels purchased only one radio, Zubkoff had offered to sell him more. On July 13, 1964, two F.B.I. agents observed a 1959 green Chevrolet arrive at appellant Zubkoff's loading platform. This vehicle was owned and operated by co-defendant Charles Barone. Barone and two other men loaded the vehicle with 17 cartons. Zubkoff was present during the loading, and instructed two of his employees to assist. Zubkoff himself carried a larger, open carton and gave it to Barone. Zubkoff also gave Barone a blanket which Barone used to cover up the cartons in his automobile. The agents watched Barone drive off from Zubkoff's junk yard and apprehended him within a quarter of a mile. In the Chevrolet were 20 new automobile radios whose serial numbers matched those of the stolen radios; there was one radio in each of 17 cartons and three radios in the larger, open carton which had been handled personally by Zubkoff.
It is true that appellant testified in his own defense that he had rented space to a man named "Williams" and another man, that the cartons belonged to them, that he did not know Barone and that all he did was to allow Barone to pick up the radios after receiving telephoned instructions, presumably from "Williams," to let Barone have them. The jury, of course, was not required to accept this story and, in view of Zubkoff's own testimony, was more than justified in rejecting it; e. g., defendant admitted, on cross-examination, that although he had never seen the men before and did not know their full names, address or telephone number, he rented them space in his warehouse and gave them keys to the premises, the latter a privilege not then accorded to his own employees; moreover, the regular books and records evidencing the alleged rental transaction had been lost in a fire and Zubkoff could not recall whether he helped Barone with the loading. On the entire record, the jury had ample grounds for finding appellant guilty of all three counts in the indictment.
Appellant argues that we must nevertheless reverse because the judge allowed the Government to use two prior convictions to impeach his credibility. The issue arose after defendant had testified in his own defense. Before the Government began to cross-examine defendant, his counsel asked the court to bar mention of three convictions of defendant in the New York State courts, one in 1929 for unlawful entry, another in 1940 for petit larceny, and a third in 1966 for procuring for prostitution. The judge excluded the last conviction because it was "on appeal, so that is not a final judgment." As to the other two, the entire colloquy was as follows:
Thereafter, the Government cross-examined defendant effectively, clearly pointing up his inconsistencies and failures of recollection and the inherent incredibility of his story. At the very end of the cross-examination, the two convictions were brought up:
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