# Petition — Lanzieri v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 460 U.S. 1086

## Text

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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
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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

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0654%3A1. Public record. Not legal advice.