Petition — Lanzieri v. United States

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—WAR 181563

In The ALEXANDER L. STEVAS,

CLERK

Supreme Court of the United States

a

7

October Term, 1982

NICHOLAS LANZIERI,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

IRVING ANOLIK

Attorney for Petitioner

20 Vesey Street

Suite 700

New York, New York 10007

|

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

(212) 732-3050

7714

*NJ (201) 257-6850eNY (212) 840-9494°PA (215) 563-5587

MA (617) 542-1114°DC (202) 783-7288°USA (800) 221-0008

QUESTIONS PRESENTED

1. Whether the courts below misconstrued Rule 608 of the

Federal Rules of Evidence when they denied the petitioner an

opportunity to conduct a psychiatric examination of the main

Government witness, James McBride, who had admitted that he

had lied on a number of occasions, including to the trial court

itself, as well as to the Government, and also acknowledged that

he had a pathological fear of incarceration to the point that he

would do and say almost anything to avoid imprisonment (Fifth

and Sixth Amendments, United States Constitution)?

2. Whether a denial of a psychiatric examination of the main

Government witness, James McBride, constituted a violation of

the petitioner’s right to confront and cross-examine this witness

effectively?

3. Whether petitioner’s rights under the Fifth and Sixth

Amendments were abridged by trial court rulings that, in essence,

made it more difficult for him to gain access to certain important

witnesses?

4. Whether petitioner’s sentence amounting to six years

imprisonment violated due process of law by virtue of the exchange

between the trial judge and the petitioner concerning the latter’s

religious propensities and whether he was a true Catholic?

5. Whether there was sufficient evidence to have warranted

presenting this case to a jury, in view of the fact that there was

virtually no substantive evidence connecting Lanzieri to the crimes

charged?

ii

PARTIES

The petitioner herein had been indicted along with one Joseph

Martinez, Donald Habe, Frank DeSena, and Wayne David Kinney,

for theft of a foreign shipment, theft from Customs custody, and

conspiracy to commit theft. For the purpose of this petition,

however, the only defendant-appellant involved in the trial was

the petitioner, Nicholas Lanzieri, because there was a mistrial as

to him during an initial trial and he was tried separatedly and

apart from everyone else during a second trial, from which this

petition is being pursued. Thus, the parties herein are only

NICHOLAS LANZIERI and the UNITED STATES OF

AMERICA, and no one else.

iii

TABLE OF CONTENTS

Page

i PE ie vsveedvabbesahobe chnewaee ans i

PUIG 6 6b p bh ncb stoner Vebetderevgneresdnecdceevesees li

Be ND ss bars be cd ircctnvverseedeneserecesses iii

C0 ek ee PPT yey TCL er ire. eee Tere iv

NOEL POUT E CULE CLT CENT CEE Ce |

Ps .2 ok shesbavsncedbssu Parse ci pesiases kee l

Constitutional and Statutory Provisions Involved ........ 2

NS OE CU GUD sia dicccrvobss ieccadedérvceevesss 3

Reasons for Granting the Writ:

It was error and a denial of petitioner’s constitutional

rights under the Fifth and Sixth Amendments, as well

as Rule 608(a) of the Federal Rules of Evidence, for

the trial court to have denied petitioner’s request to

have a psychiatric examination of the main

Government witness, James McBride.............

The colloquy at the time of sentence, between the court

and defense counsel, indicated a prediliction on the

part of the court that the petitioner was 10t sincere

in his religious proclivities. Under the circumstances,

we believe that the sentencing procedure was

Ra a Coa 6 8.0 047 FHM ahle hs bd pen ates

iv

Contents

Page

III. The evidence against the petitioner was insufficient

as a matter of law but, to exacerbate this aspect, the

petitioner was denied a fair trial because of his inability

to call the witness, Fiattarone, or to interview in

advance of tiial the witness, Soba. This was an

infringemerit of the Fifth and Sixth Amendment rights

IE i bo ads Vode aededadnndsveniars 14

ee a Cea ve Sa en eh ave ee a 16

ES oc Shee way ele heed les o6b haba doe RE 17

TABLE OF CITATIONS

Cases Cited:

Ballard v. Superior Court, 64 Cal. 2d 159, 410 P. 2d 838

cet hive Sack Rese hehe Kecnuceriesane li

Chambers v. Mississippi, 401 U.S. 284, 35 L. Ed. 2d 297

CAEL UUAG ECE HERDER KEE SE UN OREL Sie Uvb Es Ebhind 6, 14

District of Columbia v. Arms, 107 U.S. 519, 27 L. Ed. 618

AREA ys Way) at Say SP ee 8

Gurleski v. United States, 405 F. 2d 252 (Sth Cir.

a EE Ta aR od. a 8

Kotteakos v. United States, 328 U.S. 750 (1946) ........ 15

Mangrum v. State, 227 Ark. 381, 299 S.W. 2d 80

is Tava Cal bash avisardadiptes tes crebwedies 11

Contents

Page

Pointer v. Texas, 380 U.S. 400, 13 L. Ed. 2d 923....... 14

Schmerber v. California, 384 U.S. 757, 16 L. Ed. 2d 908

ees eae ces ed cake pe eee ns Shen eee 12

Shuler v. Wainright, 491 F. 2d 1212 (Sth Cir. 1974)..... 8

State v. Burno, 200 N.C. 267, 156 S.E. 781 (1931)...... 11

State v. Butler, 27 N.J. 560, 143 A. 2d 530 (1958) ...... 11

State v. Franklin, 49 N.J. 286, 229 A. 2d 657 (1967).... Il

Townsend v. Burke, 334 U.S. 736 (1948) ............05. 13

United States v. Barnard, 490 F. 2d 907 (9th Cir.

REN Las eee es beck hoch Ret ER aaeeeneahs 11

United States v. Benn, 476 F. 2d 1127 (D.C. Cir.

ES he es aus ied anes vice chee cee eaebs 12

United States v. Dildy, 39 F.R.D. 340 (D.D.C. 1966).... 11

United States v. Dionisio, 410 U.S. 1, 35 L. Ed. 2d 67

RGU Ge 2d sis ado shire ine weed as eka e’ 12

United States v. Hiss, 88 F. Supp. 599 (S.D.N.Y. 1950), aff’d,

185 F. 2d 822 (2nd Cir. 1950), cert. den., 340 U.S. 948,

Pe RED os 6 6-0:d. 5 009d 00000609 Sen eses y

United States v. Lochoco, 542 F. 2d 84 (D.C. Cir. 1976)

vi

Contents

Page

United States v. Mara, 410 U.S. 19, 35 L. Ed. 99

Cole Mewes oes wigs ssi eted ibs chneeivseanee 12

PE We BHO BOEs SOT Ws BOE cccccccccccevseens 13

Statutes Cited:

SP UO A CEVEREb OC Nectostonséessssccdeneeesee 2

Pe MUM OMG Ck ces eScerteesvtkeocccesvesvevees 2

Ee ee ee ere er ery eye Te 2

ET Peebcbedoersboesebarcdarrsovecoscrece 2

United States Constitution Cited:

PR Ps isi ocrrcrercccrsovrcsoccees i, 2, 3, 13, 14

SE PRUNES be ve cvoccccretccedoerecesecvns i, 2, 3, 14

Rules Cited:

Federal Rules of Evidence:

gE A a ee oe a

iS Scored gs cedesieeeews buentedooes a Ve il

vii

Contents

Page

Other Authorities Cited:

James, Judicial Conference, 48 F.R.D. 39 (2d Cir.

Ac acy av une CSc Ne OE RE Roc ene heebekasabest? 8

Jones, Admission of Psychiatric Testimony in Alger Hiss Trial,

Oe. See ee GH BEE UHUED 6c bb eatbocereverre 10

Ledd, Some Observations on Credibility: Impeachment of

Witnesses, 52 Corn. L.Q. 239 (1967).........05 008 8

10 Moore’s Federal Practice:

NEE Bb cb ce debepeebeceteeecreceuverdtasieneues |

UE DUES op kcbendecrevertetetevecede ses venus 8

Richardson, Modern Scientific Evidence, §8.28 (1961).... 9

Weinhofen, Testimonial Competency and Credibility, 34 Geo.

Wath, L, Rev. 53 CIGES) vecccccseveserveces 8, 9, 10, 12

APPENDIX

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Order OF ASTISMANGS 0. cc cccrercvorerecrcrevevcvevecvens 3a

CN OE CO GO escccrccesepeawsetetdasvorenedess Sa

Relevant Statutory Provisions ..........s+sseeeeeeevees 7a

No.

In The

Supreme Court of the United States

~~

October Term, 1982

NICHOLAS LANZIERI,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

OPINION BELOW

A copy of the opinion of the United States Court of Appeals

for the Second Circuit is annexed hereto as an appendix.

JURISDICTION

(a) The judgment of conviction was rendered May 10, 1982,

convicting the petitioner of conspiracy to possess and transport

a quantity of silver (scrap) stolen from an interstate or foreign

2

shipment, knowing that the silver was stolen, and also one

substantive count of transportation of the aforesaid silver, after

trial before Honorable Mark Costantino and a jury.

The petitioner had been indicted for the aforesaid crimes

along with several co-defendants, but was ultimately tried alone

because as to him there was a mistrial during a first trial, and

a retrial was required.

The charges were predicated primarily upon the

testimony of one James McBride, an extremely unstable

personality, who testified against the petitioner, that petitioner

knowingly participated along with him and the others in the

transportation and misappropriation of certain scrap silver, which

was flowing in from foreign and from interstate commerce.

(b) The order of the United States Court of Appeals for the

Second Circuit affirming the judgment of the United States District

Court for the Eastern District of New York was rendered

November 12, 1982. A copy of the opinion of the court, as well

as the order of affirmance, is annexed hereto as appendices.

A petition for rehearing was filed, but was denied by

the United States Court of Appeals on January 17, 1983. A copy

of the order denying rehearing is also annexed as an appendix.

(c) Jurisdiction to review the judgment and order in question

by certiorari is conferred under 28 U.S.C. §§1254 and 1257.

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The Fifth and Sixth Amendments of the United States

Constitution, and Sections 659 and 2314 of Title 18 of the United

States Code, as well as Rule 608(a) of the Rules of Evidence,

are involved herein. These are reproduced in the appendix, so

far as relevant herein.

STATEMENT OF THE CASE

The petitioner was tried twice on the charges in the within

indictment. On the first occasion there was a conviction as to

co-defendants, but a mistrial as to him. At the second trial, which

is the subject for the petition for certiorari herein, petitioner was

tried alone and was convicted.

The main evidence against petitioner stemmed from testimony

of one James McBride, who was an accomplice as a matter of

law, and the main Government witness.

McBride had testified that he lived near the petitioner in Staten

Island and worked at John F. Kennedy International Airport for

**JFK Deliveries’, as a truck driver. McBride admitted that he

had stolen a quantity of silver residue and silver flakes from

Seaboard Airlines at Kennedy Airport, for which theft he was

charged and ultimately pleaded guilty. He was facing 5 years

imprisonment and a $10,000 fine at the time of his testimony,

but had not yet been sentenced (39, 40).'

His exposure originally had been to a possible 17-year

sentence, prior to his guilty plea (41).

McBride asserted that he had spoken to several people,

including one Joe Martinez, who was an agent at Seaboard World

Airlines. Later McBride declared that he spoke to petitioner,

Nicholas Lanzieri, but referred to some ‘‘cobalt’’ which McBride

1. Numerals in parentheses refer to pages of the official court reporter’s

minutes of trial, unless otherwise indicated.

4

informed Lanzieri he was trying to sell. It was his desire to obtain

the assistance of Lanzieri in selling this cobalt, but there was no

indication that Lanzieri was informed that the commodity had

been stolen. The scrap silver itself was contained in blue vinyl-

type barrels with black plastic tops (44).

Later, McBride stated that he informed Lanzieri that he had

scrap silver and wanted to know if Lanzieri could help him get

rid of it (51). Petitioner allegedly answered in the affirmative.

McBride never testified that Lanzieri actually knew the silver was

stolen, or the true value thereof.

McBride was substantially evasive on a number of aspects

of his testimony. For example, he claimed to have taken the

shipment in question to the firm where defendant worked on July

17th. He stated that there was someone there, whom he had never

seen before and could not identify. Not only could he not identify

him, but he could not even give an estimate as to the man’s height,

weight, color of his skin, or race (McBride, 52-54).

McBride further declared that he was with Mr. John Fraterino

[sic] for about twenty minutes that day (56).

The witness had great difficulty in even recalling what had

occurred and the date that he claims to have had a monetary

transaction with Lanzieri (56-62).

Illustrative of McBride’s inaccuracies and unreliability, the

following occurred at 131 of the transcript:

*Q. And you completely, entirely, were

wrong on every single portion and total of

payments the first time you ever talked to law

enforcement officials about this, isn’t that

right? A. Yes.”

5

Furthermore, McBride admitted that he had deliberately lied

to the court about his ability to hire a lawyer, and had lied in

other respects as well (131, 132):

**Q. You lied to the court when you started

to cooperate, isn’t that a fact? A. Yes.

Q. And you did that intentionally, didn’t

you? A. Yes.

Q. So when you just said five minutes ago

that you wouldn’t do it intentionally, you were

lying then, weren’t you? A. Well, not really.’’

Moreover, McBride admitted that he was terrified of going

to jail because he suffered from claustrophobia and ‘‘cannot abide

the thought of being in a confined place’’ (135).

Additionally, McBride admitted that the thought of going

to jail was like a “‘living hell. . .it would be unbearable’’ and that

he was “‘terrified of going to jail’’ (136).

Anomalously, McBride nevertheless insisted that despite his

pathological fear of confinement in jail, and despite the fact that

he had stolen many times and had lied to the court, he was

nevertheless telling the truth to the jury (136).

Anthony Fiattarone testified out of the presence of the jury

on behalf of the prosecution. He stated that he was employed

by DRD Fast Freight in 1980 as a truck driver and sometimes

worked in the vicinity of the airport. He remembered a person

by the name of ‘‘Mac’’ (presumably McBride), but denied any

recollection of having been asked by Mr. Habe to accompany

him and ‘‘Mac’”’ by driving someone’s car and following the DRD

truck (185). In essence he denied any recollection of events that

McBride claimed occurred (186).

There was no further substantive testimony specifically inking

the petitioner with involvement in this case.

While the petitioner himself did not take the stand, he called

his mother-in-law, Martha Hoffman, who stated that the petitioner

was in Florida in the latter part of July and certainly up to and

including August Sth, 1980 (438-444, 448-460).

This testimony, in essence, was by way of alibi because it

precluded the petitioner from having been in New York at a point

in time when McBride claimed that he was with the petitioner.

Returning for a moment to Fiattarone, it should be noted

that the Government obtained his testimony by conferring

immunity upon him (176, 177), but, ironically, the court would

not permit defense counsel to read his testimony to the jury when

an application was made sometime later.

While it is true that Mr. Cohen, the trial attorney for the

petitioner, did not make this application until the virtual close

of the defense case, the court, we submit, erred in holding that

in essence tie defense had waived the right to have this testimony

presented to the jury because of the point in time that the request

was made (423-430) (Chambers v, Mississippi, 401 U.S. 284, 35

L. Ed. 2d 297).

Fiattarone had given testimony on behalf of the Government,

under a grant of immunity, but the court would not permit defense

counsel at trial to read that testimony to the jury because the

application had been made after the witness had left the stand.

In short, the trial testimony revealed that McBride and

petitioner may have had some contacts concerning the disposition

of certain scrap silver, but there was no affirmative testimony

that petitioner actually knew the si’ er was stolen or that McBride

was a thief.

7

REASONS FOR GRANTING THE WRIT

I,

It was error and a denial of petitioner’s constitutional rights

under the Fifth and Sixth Amendments, as well as Rule 608(a) of

the Federal Rules of Evidence, for the trial court to have denied

petitioner's request to have a psychiatric examination of the main

Government witness, James McBride.

The main and primary witness against the petitioner was one

James McBride, who testified against the petitioner herein. It is

inconceivable that there could have been a conviction of the

petitioner without the testimony of James McBride.

McBride frankly admitted that he had lied on several

occasions to the court itself, and had lied to the Government.

In addition, McBride stated that he had a pathological fear

of incarceration, to the point that he would do and say almost

anything to avoid imprisonment.

Pursuant to Rule 608 of the Federal Rules of Evidence,

counsel below asked for a psychiatric examination of McBride.

This was denied categorically by the trial court below, without

so much as a hearing.

With the adoption of the Federal RP uies of Evidence, the rules

governing an attack upon a witness’ character for truthfulness

were codified. F.R. Evid. 608 provides in pertinent part as follows:

‘*(a) ... The credibility of a witness may be

attacked . . . by evidence in the form of opinion

or reputation. .. ."’ (Emphasis supplied.)

F.R. Evid. 608 does spell out certain limitations upon the

foregoing. However, it makes clear that the evidence offered may

refer to a witness’ propensity for untruthfulness. Legal

commentators have observed the F.R. Evid. 608 is a ‘‘necessary

limitation upon the broad rule of competency provided’’ by F.R.

Evid. 601. Thus, although a witness may be legally competent

to testify, he might still lack the character trait or traits necessary

to prevent him from testifying falsely, especially if there were

some advantage to be gained by falsification. 10 Moore's Federal

Practice §604.02; Ledd, Some Observations on

Credibility: Impeachment of Witnesses, 52 Corn, L.Q, 239, 241

(1967). Indeed, at least one judicial observer has noted that F.R.

Evid. 608 clearly contemplated the use of psychiatric testimony.

James, Judicial Conference, 48 F.R.D. 39, 63 (2d Cir, 1969).

The defense did not suggest that McBride was incompetent

to testify. Indeed, they conceded that he was, and that concession

is repeated! here. See District af Columbia v. Arms, 107 U.S, 519,

27 L. Ed. 618 (1883); Shuler v. Wainwright, 491 F, 2d 1212 (Sth

Cir, 1974); Gurleski v. United States, 405 F. 2d 252, 267 (Sth

Cir, 1968).

But together with the exceptionally broad rule of competency

(F.R. Evid. 601), there should be a concomitant increase in judicial

sensitivity to a criminal defendant’s ability to demonstrate whatever

might be relevant concerning the credibility of a given witness,

**That the court has found the witness to possess

the minimal degree of capacity to testify should

not foreclose a showing that because of a mental

defect or disorder his testimony is so untrustworthy

that it should be given little weight.’’ Weinhofen,

Testimonial Competency and Credibility, 34 Geo.

Wash. L. Rev. 53, 68 (1965).

9

Perhaps in response to this need the last thirty years have

shown an increasingly discernible tendency on the part of our

courts to allow expert psychiatric opinion as to credibility and

the character traits of a witness. See Richardson, Modern Scientific

Evidence, §8.28 (1961). This is as it should be, because it may

be difficult, if not impossible, for the untrained observer to detect

aberrations in the demeanor or social attitude of a mentally

disturbed witness. Thus, it has been held that expert testimony

as to the mental unsoundness of a witness is admissible for the

purpose of impeaching iiis credibility and, while even a mentally

ill witness will not generally be excluded from the witness stand,

the defendant should be allowed to bring evidence of such illness

to the attention of the jury. United States v. Hiss, 88 F. Supp.

599 (S.D.N.Y. 1950), aff’d., 185 F. 2d 822 (2nd Cir. 1950), cert.

den., 340 U.S. 948, 95 L. Ed. 683 (1951).

United States v. Hiss, 88 F. Supp., supra, was the first federal

case to deal with the question of the use of scientific testimony

to impeach the credibility of a witness. The principal witness was

a man named Whittaker Chambers, and the prosecution was

almost wholly dependent upon his testimony. The defendant did

not challenge Chambers’ competency to testify. However, he

sought to attack Chambers’ credibility by offering the testimony

of a psychiatrist concerning an in-court observation of the witness.

Though the psychiatrist had never examined Chambers, the court

allowed him to testify. Interestingly, the defense expert utilized

the device of a hypothetical question involving twelve symptoms?

2. These twelve symptoms were: (1) repetitive lying, (2) stealing, (3)

withholding truth, (4) insensitivity to the feeling of others, (5) play acting and

assuming false names, (6) bizarre and unusual acts, (7) vagabondage, (8)

instability of attachment, (9) pan-handling, (10) abnormal emotionality, (11)

paranoid thinking, and (12) pathological accusation. Weinhofen, supra at 69

n. 85.

10

to arrive at the conclusion that Chambers was a ‘‘Psychopathic

personality.’’” However, such opinions as are based upon

observations of courtroom behavior or upon hypothetical

questions are particularly vulnerable to attack and even ridicule

by the other side as inadequate or even unethical. Weinhofen,

supra at 69.

There seems to be consensus among commentators on the

issue that there is simply no substitute for a full clinical

examination of the witness by the expert. Weinhofen, supra, at

69. Jones, Admission of Psychiatric Testimony in Alger Hiss Trial,

11 The Alabama Law 212 (1950).

An interesting case in this area is United States v. Lochoco,

542 F. 2d 84 (D.C. Cir. 1976). There, the trial court permitted

the defense to present three psychiatrists as witnesses in support

of the defendant’s defense of insanity. This was deemed by both

the trial judge and the Court of Appeals to be fully authorized

by F.R. Evid. 608, (A) notwithstanding the defendant’s exercise

of his absolute right not to take the stand himself. Following

vigorous cross-examination of those witnesses by the Government,

the defendant next offered the testimony of a fellow worker

relating to the defendant’s reputation for truinfulness and honesty.

The trial court sustained the Government’s objection upon the

grounds of relevancy. The Court of Appeals found error in

rejecting this proffer and remanded the matter for a new trial.

Lochoco, 542 F. 2d, supra, demonstrates what the petitioner

contends is a new judicial appreciation for the value of expert

psychiatric opinion on the issue of veracity. Although not

elaborated upon in the court’s opinion, it is suggested that both

the trial judge and appellate court were no doubt more comfortable

with endorsing this kind of evidence when it was the result of

a full clinical examination of the subject rather than pure

observation or responding to hypothetical questions. Of course,

11

the former is precisely the kind of examination requested by the

defense herein.

Another noteworthy case in this area is United States v.

Barnard, 490 F. 2d 907 (9th Cir. 1973). There, the court rule that

it was not a manifest abuse of the trial judge’s discretion to exclude

a defense proffer of expert psychiatric testimony in an attack upon

the Government’s key witness. However, the basis for this ruling

is enlightening. First, the court noted that the expert’s knowledge

about the witness was limited, having been gleaned from a review

of the witness’ army records, his grand jury testimony, and in-

court observation. Jd. 912-913. The defense here, on the other

hand, urged a full, clinical evaluation of McBride. Secondly, and

most importantly, the holding in Barnard pre-dates the effective

date of the Federal Rules of Evidence (July 1, 1975) by a

considerable period of time, and the trial court’s ruling obviously

does so by an even longer period. As has been noted, the Federal

Rules of Evidence were intended to introduce ‘‘for the first time

a modern, rational, and well conceived set of uniform evidence

rules for the trial of . . . criminal cases.’’ 10 Moore’s Federal

Practice §1. It is respectfully urged that the judge below

erroneously failed to adopt this modern approach specifically

envisioned by the provisions of F.R. Evid. 608(a).

Various state courts have held that their respective trial courts

were possessed with the inherent power to compel a witness to

submit to a psychiatric evaluation of his mental condition, and

the results to be examined with reference to his credibility. See,

e.g., State v. Franklin, 49 N.J. 286, 229 A. 2d 657 (1967); State

v. Butler, 27 N.J. 560, 143 A. 2d 530 (1958); Ballard v. Superior

Court, 64 Cal. 2d 159, 410 P. 2d 838 (1966); Mangrum v. State,

227 Ark. 381, 299 S.W. 2d 80 (1957); State v. Burno, 200 N.C.

267, 156 S.E. 781 (1931). Cf., United States v. Dildy, 39 F.R.D.

340 (D.D.C. 1966).

12

While there can be no question that the issue of competency

is one of law and thus one to be determined by the trial judge,

the credibility of a witness is for the jury and the jury alone. United

States v. Benn, 476 F. 2d 1127, 1130 (D.C. Cir. 1973). These

questions must be kept separate and distinct, and ‘‘although the

use of expert psychiatric testimony does not fall within the

traditional pattern of impeachment, the law should be flexible

enough to make use of new resources.’’ Weinhofen, supra at 68.

While the trial judge herein did not articulate the specific

reason for denying defense counsel’s application, other than a

general denial, nor did he concern himseif with the possibility

of an invasion of the witness’ privacy, we would note to this Court

that concerns about the witness’ privacy are irrelevant to the relief

that was requested below.

Furthermore, in answer to the standard arguments against

the examinations as stated hereinabove, it would appear that in

this case the type of relief sought is not nearly so stringent as

that which has been afforded to law enforcement authorities by

the Supreme Court. For example, the Supreme Court has required

a defendant, presumed innocent, to submit to various types of

physical examinations with a concomitant loss privacy. E.g.,

Schmerber v. California, 384 U.S. 757, 16 L. Ed. 2d 908 (1966);

United States v. Dionisio, 410 U.S. 1, 35 L. Ed. 2d 67 (1973);

and United States v. Mara, 410 U.S. 19, 35 L. Ed. 99 (1973).

While there should certainly be concern for the right to privacy

of a witness, the trial courts have exaggerated the potential effect

of a court-ordered psychiatric examination, particularly with an

individual such as McBride. On the other hand, fundamental

fairness and a concern for the rights of a criminal defendant,

particularly where there was an indication that the principal

witnesses against him were unstable and inclined to erratic actions,

mandated the granting of the requested relief.

13

Il.

The colloquy at the time of sentence, between the court and

defense counsel, indicated a prediliction on the part of the court

that the petitioner was not sincere in his religious proclivities.

Under the circumstances, we believe that the sentencing procedure

was unconstitutional.

We can appreciate the fact that a court has the right to

consider even hearsay at the time of sentence (Townsend v. Burke,

334 U.S. 735 (1948); and Williams v. New York, 337 U.S. 241,

246-247). Nevertheless it is required that due process be accorded

to the petitioner at the time of sentencing [see 81 Harv. L. Rev.

821 (1968)].

We believe that in view of the fact that the court engaged

in a dispute with defense counsel about the sincerity of the

petitioner’s religious proclivities and beliefs, it had no place in

the sentencing procedure and, accordingly, the sentencing itself

violated constitutional safeguards under the Fifth Amendment

Due Process Clause.

14

Il.

The evidence against the petitioner was insufficient as a matter

of law but, to exacerbate this aspect, the petitioner was denied

a fair trial because of his inability to call the witness, Fiattarone,

or to interview in advance of trial the witness, Soba. This was

an infringement of the Fifth and Sixth Amendment rights of the

petitioner.

The witness, Soba, had testified at the prior trial. The

petitioner sought to interview Soba prior to the second trial because

of the fact that there appeared to be inconsistencies which he

wanted to resolve and also wished to prepare properly for retrial.

Under the Sixth Amendment of the United States

Constitution, any defendant accused of crime has a right to

confront the witnesses against him and to have proper assistance

of counsel (Pointer v. Texas, 380 U.S. 400, 13 L. Ed. 2d 923).

In the case of Fiattarone, the petitioner had sought to call

him as a witness, but was unable to do so because of the trial

court’s ruling that since he had not availed himself of that

opportunity during the prosecution’s case, that it was now too

late to do so.

Fiattarone had been granted immunity by the prosecution,

but had testified outside the presence of the jury. Defense counsel

was unable to reach Fiattarone when he wanted to use him later

on, and asked the court’s permission to read his testimony which

he had given in an adversary proceeding previously. This the court

also refused to do.

We believe that this, too, deprived the petitioner of proper

confrontation and of compulsory processes to secure witnesses,

to say nothing of his due process rights to a fair trial (Chambers

v. Mississippi, 401 U.S. 284, 35 L. Ed. 2d 297).

15

The evidence against the petitioner did not spell out the

particular conspiracy in which it was alleged that the petitioner

was a participant, nor would the court charge that the jury must

find that petitioner was involved in a particular conspiracy.

We maintain that this, too, revealed that there was insufficient

evidence against the petitioner, because without some nexus to

the conspiracy charge in the indictment, there could be no

conviction of the petitioner [Kotteakos v. United States, 328 U.S.

750 (1946)].

16

CONCLUSION

The petition for certiorari should be granted and upon review

of the proceedings below, the judgment of conviction should be

reversed.

Respectfully submitted,

IRVING ANOLIK

Attorney for Petitioner

17

CERTIFICATION

IRVING ANOLIK, an attorney at law duly admitted to

practice in this Court, certifies that a true copy of this petition

was served upon the Solicitor General of the United States on

the 15 day of March, 1983, by forwarding this petition by First

Class Mail properly addressed to the Office of the Solicitor General -

of the United States, Department of Justice, Washington, D.C.

20530.

DATED: March 15, 1983.

s/ Irving Anolik

IRVING ANCLIK

APPENDIX

ORDER DENYING REHEARING

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a Stated Term of the United States Court of Appeals for

the Second Circuit, held at the United States Courthouse, in the

City of New York, on the seventeenth day of January, one

thousand nine hundred and eighty-three.

Present:

HON. STERRY R. WATERMAN

HON. IRVING R. KAUFMAN

HON. JON O. NEWMAN

Circuit Judges.

No. 82-1170

Filed Jan. 17, 1983

UNITED STATES OF AMERICA,

Respondent-Appellee,

v.

NICHOLAS LANZIERI,

Petitioner-Appellant.

2a

Order Denying Rehearing

A petition for rehearing containing a suggestion that the action

be reheard in banc having been filed herein by counsel for the

petitioner-appellant, Nicholas Lanzieri,

Upon consideration by the panel that heard the appeal, it is

Ordered that said petition for rehearing is DENIED.

It is further noted that the suggestion for rehearing in banc

has been transmitted to the judges of the court in regular active

service and to any other judge on the panel that heard the appeal

and that no such judge has requested that a vote be taken thereon.

A. Daniel Fusaro, Clerk

s/ Francis X. Gindhart

Chief Deputy Clerk

3a

ORDER OF AFFIRMANCE

UNITED STATES COURT OF APPEALS

Second Circuit

At a stated Term of the United States Court of Appeals for

the Second Circuit, held at the United States Courthouse in the

City of New York, on the 12th day of November, one thousand

nine hundred and eighty-two,

Present:

HONORABLE STERRY R. WATERMAN,

HONORABLE IRVING R. KAUFMAN,

HONORABLE JON O, NEWMAN,

Circuit Judges.

82-1170

Filed Nov. 12, 1982

UNITED STATES OF AMERICA,

Appellee,

Vv.

NICHOLAS LANZIERI,

Appellant.

4a

Order of Affirmance

N.B. Since this statement does not constitute a formal opinion

of this court and is not uniformly available to all parties, it shall

not be reported, cited or otherwise used in unrelated cases before

this or any other court.

Appeal from the United States District Court for the Eastern

District of New York.

This cause came on to be heard on the transcript of record |

from the United States District Court for the Eastern District of

New York, and was argued by counsel,

ON CONSIDERATION WHEREOF, it is now hereby

ordered, adjudged, and decreed that the judgment of said District

Court be and it hereby is affirmed.

5a

OPINION OF THE COURT

Docket No, 82-1170

Page Two

1. Appellant urges the government adduced insufficient

evidence to permit the jury to conclude he knew the silver shipment

was stolen. He claims the only evidence directly implicating him

in the conspiracy was McBride's testimony that appellant paid

for quantities of silver on five occasions, This characterization

ignores a number of details. The night of the theft, acting on

Lanzieri’s instructions, McBride delivered the silver to the Overseas

Cargo warehouse, arriving well after normal business hours, at

approximately midnight. McBride produced no documentation

and received no receipt for the silver from the man with whom

he left it. The jury could reasonably have concluded that individual

was performing this task on Lanzieri’s instructions, and the furtive

and irregular transfer of the goods certainly support the inference

of knowledge of the illegal nature of the transaction. See ¢.g.,

United States v. DeKunchak, 467 F.2d 432, 436 (2d Cir, 1972),

Moreover, the purchase of a very large quantity of a precious

metal for approximately $100,000 from a man Lanzieri knew to

be a truckdriver with a modest weekly salary comports with the

jury’s conclusion of guilty knowledge. In sum, appellant has not

met his very heavy burden of demonstrating insufficiency of

evidence, United States v. Losada, 674 F.2d 167, 173 (2d Cir.),

cert, denied, 102 S, Ct, 2945 (1982),

2. Lanzieri’s second claim is that Fiattarone’s testimony

should have been read to the jury, This contention is without

merit, Fiattarone had been interviewed prior to trial by the

government, and his denial of any involvement in the July 17

theft was communicated to Lanzieri in Brady material. Appellant

was therefore on notice of the existence of this potentially favorable

witness, see United States v. LeRoy, 687 F.2d 610, 618 (2d Cir,

6a

Opinion

1982), yet made no effort to subpoena him and offers no

explanation for this omission. Having failed to subpoena

Fiattarone, Lanzieri cannot now contend the witness’s testimony

was not ‘‘available’’ to him within the meaning of Fed. R. Evid.

804(b)(1). The district court did not err by refusing to read

Fiattarone’s testimony to the jury. See United States v. Myers,

Nos. 81-1342-47, slip op. at 4652 (2d Cir. Sept. 3, 1982).

3. Judge Costantino properly instructed the jury on

conspiracy. His detailed charge left no doubt that the conspiracy

referred to involved the events of the night of July 17, 1980. The

district court specifically linked the conspiracy to the underlying

substantive crime and thereby clearly instructed the jury it must

find Lanzieri guilty of the conspiracy charged and not some other.

See United States v. Gentile, 530 F.2d 461, 469-70 (2d Cir. 1976).

4. Appellant offers no support for his contention that Judge

Costantino should have permitted a psychiatric examination of

McBride, based only on counsel’s lay opinion that McBride’s self-

admitted claustrophobia and fear of being sentenced to a prison

term may have compelled perjurious testimony. The district court

acted well within its discretion in refusing the request, absent any

scientific support for appellant’s position.

5. Lanzieri’s other claims are entirely without merit.

6. The judgmient of conviction is affirmed in all respects.

STERRY R. WATERMAN

s/ Irving R. Kaufman

IRVING R. KAUFMAN

s/ Jon O. Newman

JON O. NEWMAN,

Circuit Judges.

7a

RELEVANT STATUTORY PROVISIONS

§659. Interstate or foreign shipments by carrier; State prosecutions

Whoever embezzles, steals, or unlawfully

takes, carries away, or conceals, or by fraud or

deception obtains from any pipeline system,

railroad car, wagon, motortruck, or other vehicle,

or from any tank or storage facility, station, station

house, platform or depot or from any steamboat,

vessel, or wharf, or from any aircraft, air terminal,

airport, aircraft terminal or air navigation facility

with intent to convert to his own use any goods

or chattels moving as or which are a part of or

which constitute an interstate or foreign shipment

of freight, express, or other property; or

Whoever buys or receives or has in his

possession any such goods or chattels, knowing

the same to have been embezzled or stolen; or

Whoever embezzles, steals, or unlawfully

takes, carries away, or by fraud or deception

obtains with intent to convert to his own use any

baggage which shall have come into the possession

of any common carrier for transportation in

interstate or foreign commerce or breaks into,

steals, takes, carries away, or conceals any of the

contents of such baggage, or buys, receives, or has

in his possession any such baggage or any article

therefrom of whatever nature, knowing the same

to have been embezzled or stolen; or

Whoever embezzles, steals, or unlawfully

takes by any fraudulent device, scheme, or game,

Relevant Statutory Provisions

from any railroad car, bus, vehicle, steamboat,

vessel, or aircraft operated by any common carrier

moving in interstate or foreign commerce or from

any passenger thereon any money, baggage, goods,

or chattels, or whoever buys, receives, or has in

his possession any such money, baggage, goods,

or chattels, knowing the same to have been

embezzled or stolen—

Shall in each case be fined not more than

$5,000 or imprisoned not more than ten years, or

both; but if the amount or value of such money,

baggage, goods or chattels does not exceed $100,

he shall be fined not more than $1,000 or

imprisoned not more than one year, or both.

§2314. Transportation of stolen goods, securities, moneys,

fraudulent State tax stamps, or articles used in counterfeiting

Whoever transports in interstate or foreign

commerce any goods, wares, merchandise,

securities or money, of the value of $5,000 or more,

knowing the same to have been stolen, converted

or taken by fraud; or

Whoever, having devised r intending to

devise any scheme or artifice to defraud, or for

obtaining money or property by means of false

or fraudulent pretenses, representations, or

promises, transports or causes to be transported,

or induces any person to travel in, or to be

transported in interstate commerce in the execution

or concealment of a scheme or artifice to defraud

9a

Relevant Statutory Provisions

that person of money or property having a value

of $5,000 or more; or

Whoever, with unlawful or fraudulent intent,

transports in interstate or foreign commerce any

falsely made, forged, altered, or counterfeited

securities or tax stamps, knowing the same to have

been falsely made, forged, altered, or

counterfeited; or

Whoever, with unlawful or fraudulent intent,

transports in interstate or foreign commerce any

traveler’s check bearing a forged countersignature;

or

Whoever, with unlawful or fraudulent intent,

transports in interstate or foreign commerce, any

tool, implement, or thing used or fitted to be used

in falsely making, forging, altering, or

counterfeiting any security or tax stamps, or any

part thereof—

Shall be fined not more than $10,000 or

imprisoned not more than ten years, or both.

Rule 608. Evidence of Character and Conduct of Witness

(a) Opinion and reputation evidence of

character. The credibility of a witness may be

attacked or supported by evidence in the form of

opinion or reputation, but subject to these

limitations: (1) the evidence may refer only to

character for truthfulness or untruthfulness, and

(2) evidence of truthful character is admissible only

10a

Relevant Statutory Provisions

after the character of the witness for truthfulness

has been attacked by opinion or reputation

evidence or otherwise.