United States v. Larry Lombardi, 550 F.2d 827 (2d Cir. 1977). · Go Syfert
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United States v. Larry Lombardi, 550 F.2d 827 (2d Cir. 1977). Cases Citing This Book View Copy Cite
28 citation events (1 in the last 25 years) across 11 distinct courts.
Strongest positive: United States v. Patrick Blasingame (ca11, 2007-03-09)
Treatment trajectory · 1977 → 2026 · click a year to view as-of
1977 2001 2026
Top citers, strongest first. 15 distinct citers. How cited ↗
discussed Cited as authority (rule) United States v. Patrick Blasingame
11th Cir. · 2007 · confidence medium
Moreover, “[wjhere credibility has been challenged on the basis of facts absent from the prior statement, the [prior] statement [is] admitted when it [is] consistent with the remaining testimony.” United States v. Hamilton, 689 F.2d 1262, 1273 (6th Cir.1982) (citing United States v. Lombardi, 550 F.2d 827, 828 (2nd Cir.1977)).
discussed Cited as authority (rule) United States v. John W. Sliker, John Carbone, and Theodore Buchwald, A/K/A \Bucky
unknown court · 1985 · confidence medium
Viewed in the context of the whole jury charge, United States v. Tourine, 428 F.2d 865, 869 (2d Cir.1970), cert. denied, 400 U.S. 1020 , 91 S.Ct. 581 , 27 L.Ed.2d 631 (1971), Judge Griesa’s remarks fell well within “the permissible range of the trial judge’s discretion to comment upon the evidence,” United States v. Lombardi, 550 F.2d 827, 829 (2d Cir.1977); see generally 1 Weinstein & Berger, Weinstein’s Evidence ¶ 107[07] (1982) [hereinafter cited as Weinstein’s Evidence].
discussed Cited as authority (rule) United States v. Brantley
Ohio Ct. App. · 1984 · signal: cf. · confidence medium
Cf. United States v. Lombardi, 550 F.2d 827, 828 (2d Cir.1977) (when defense counsel challenges witness' credibility on basis of facts absent from prior statement, prior statement still admissible to prove consistency with other portions of testimony), cited with approval in United States v. Hamilton, 689 F.2d 1262, 1273 (6th Cir.), cert. denied, 459 U.S. 911 , 103 S.Ct. 218 , 74 L.Ed.2d 174 (1982).
discussed Cited as authority (rule) United States v. Brantley
Conn. · 1984 · signal: cf. · confidence medium
Cf. United States v. Lombardi, 550 F.2d 827, 828 (2d Cir.1977) (when defense counsel challenges witness’ credibility on basis of facts absent from prior statement, prior statement still admissible to prove consistency with other portions of testimony), cited with approval in United States v. Hamilton, 689 F.2d 1262, 1273 (6th Cir.), cert. denied, 459 U.S. 911 , 103 S.Ct. 218 , 74 L.Ed.2d 174 (1982).
discussed Cited as authority (rule) United States v. Michael E. Quinto
2d Cir. · 1978 · confidence medium
Finally, it is necessary that, as was the situation under the law of evidence prior to the adoption of the Federal Rules of Evidence, see, e. g., United States v. Check, supra, at 680-681; United States v. Fayette, supra, 388 F.2d at 733 ; United States v. Grunewald, supra, 233 F.2d at 566 , the proponent must demonstrate that the prior consistent statement was made prior to the time that the supposed motive to falsify arose, e. g., United States v. Check, supra, 582 F.2d at 681 ; United States v. McGrath, 558 F.2d 1102, 1107 (2d Cir. 1977), cert. denied, 434 U.S. 1064 , 98 S.Ct. 1239 , 55 L.E…
discussed Cited as authority (rule) United States v. Sandy Check
2d Cir. · 1978 · confidence medium
E. g., United States v. Lombardi, 550 F.2d 827, 828-29 (2d Cir. 1977) (per curiam); accord, United States v. McGrath, 558 F.2d 1102, 1107 (2d Cir. 1977), cert. denied, 434 U.S. 1064 , 98 S.Ct. 1239 , 55 L.Ed.2d 765 (1978); United States v. Fayette, 388 F.2d 728, 733 (2d Cir. 1968).
discussed Cited as authority (rule) United States v. Stirling
2d Cir. · 1978 · confidence medium
See United States v. Cheung Kin Ping, 555 F.2d 1069, 1074 (2d Cir. 1977); United States v. Floyd, 555 F.2d 45, 47 (2d Cir. 1977); United States v. Lombardi, 550 F.2d 827, 829 (2d Cir. 1977); United States v. Tolkow, 532 F.2d 853, 859 (2d Cir. 1976).
discussed Cited as authority (rule) Fed. Sec. L. Rep. P 96,308, 2 Fed. R. Evid. Serv. 1257 United States of America v. David Stirling, Jr., William G. Stirling, Harold M. Yanowitch, Edwin J. Schulz and Rubel L. Phillips
2d Cir. · 1978 · confidence medium
See United States v. Cheung Kin Ping, 555 F.2d 1069, 1074 (2d Cir. 1977); United States v. Floyd, 555 F.2d 45, 47 (2d Cir. 1977); United States v. Lombardi, 550 F.2d 827, 829 (2d Cir. 1977); United States v. Tolkow, 532 F.2d 853, 859 (2d Cir. 1976).
cited Cited "see" State v. Vigil
N.M. Ct. App. · 1985 · signal: see · confidence high
See United States v. Lombardi, 550 F.2d 827 (2nd Cir.1977); United States v. Iaconetti, 406 F.Supp. 554 (E.D.N.Y.1976).
cited Cited "see" United States v. Margaret Elaine Wilkinson, A/K/A \Jane Doe\"
unknown court · 1985 · signal: see · confidence high
See United States v. Lombardi, 550 F.2d 827, 828 (2d Cir.1977).
cited Cited "see" United States v. Wilkinson
unknown court · 1985 · signal: see · confidence high
See United States v. Lombardi, 550 F.2d 827, 828 (2d Cir.1977).
cited Cited "see" Commonwealth v. Maioli
Mass. App. Ct. · 1981 · signal: see · confidence high
See United States v. Lombardi, 550 F.2d 827, 828-829 (2d Cir. 1977).
cited Cited "see" State v. Manus
N.M. · 1979 · signal: see · confidence high
See State v. Bell, 90 N.M. 134 , 560 P.2d 925 (1977), and United States v. Lombardi, 550 F.2d 827 (2d Cir. 1977).
discussed Cited "see" United States v. Anne Lamont
2d Cir. · 1977 · signal: see · confidence high
See United States v. Lombardi, 550 F.2d 827, 829 (CA 2 1977), with cf. citations to United States v. Natale, 526 F.2d 1160 , and see, e. g., 1169-1170 (CA 2 1975), cert. denied, 425 U.S. 950 , 96 S.Ct. 1724 , 48 L.Ed.2d 193 (1976), and United States v. Tourine, 428 F.2d 865 , and see, e. g., 869-870 (CA 2 1970), cert. denied, sub nom.
discussed Cited "see, e.g." United States v. William Rubin (2×)
2d Cir. · 1979 · signal: see, e.g. · confidence low
See, e. g., United States v. Lombardi, 550 F.2d 827 (2d Cir. 1977); Applebaum v. American Export Isbrandtsen Lines, 472 F.2d 56, 60-62 (2d Cir. 1972).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellee,
v.
Larry LOMBARDI, Defendant-Appellant
665, Docket 76-1471.
Court of Appeals for the Second Circuit.
Mar 1, 1977.
550 F.2d 827
Thomas E. Engel, Asst. U. S. Atty., New York City (Robert B. Fiske, Jr., U. S. Atty., S. D. N. Y., Audrey Strauss, Asst. U. S. Atty., New York City, on the brief), for appellee., Jonathan J. Silbermann, New York City (William J. Gallagher, The Legal Aid Society, Federal Defender Services Unit, New York City, on the brief), for defendant-appellant.
Lumbard, Feinberg, Mulligan.
Cited by 24 opinions  |  Published
PER CURIAM:

A jury in the United States District Court for the Southern District of New York found Larry Lombardi guilty of six counts of possession of heroin with intent to distribute, and one count of conspiracy. He appeals that conviction on the basis of various trial errors. For the reasons set forth below, we reject his arguments and affirm the judgment of conviction.

The evidence at trial showed that Lombardi was part of a smuggling enterprise that brought large amounts of heroin into the United States from the Far East. Lombardi acted as a distributor, and obtained merchandise in large quantities from Yuin Kwei Sang (Yuin). The Government’s case relied heavily on the testimony of Yuin, who pleaded guilty to a single count and cooperated with the prosecution.

Lombardi challenges the admission into evidence of portions of Yuin’s testimony at the earlier trial of two other members of the smuggling ring, Cheung Kin Ping (Cheung) and Lai Mong Wah (Lai). In his direct examination in this trial, Yuin testified that Lombardi’s nephew, Americo Spagnuolo, had been involved in several of the narcotics transactions with Lombardi. On cross-examination, defense counsel elicited a concession that Yuin had not included Spagnuolo in any previous testimony. Seeking to rebut this inferential attack on Yuin’s credibility, the Government on redirect questioned Yuin about his prior testimony both before the grand jury and at the trial of Cheung and Lai. The Assistant United States Attorney read to Yuin portions of his prior testimony that were consistent with his essential testimony against Lombardi, although they made no mention of Spagnuolo. Lombardi contends that the court should not have permitted the use of Yuin’s prior testimony in that way, because it had nothing to do with the discrepancy raised on cross-examination. However, cross-examination had called into question Yuin’s credibility by suggesting Yuin had recently altered his story to inculpate Lombardi. The Government was thus entitled under F.R.Evid. 801(d)(1)(B) [1] to show that what Yuin did say at the former trial was consistent with his direct testimony at Lombardi’s trial. Lombardi argues that the pri- or consistent testimony cannot be corroborative because Yuin had the same motive to lie at the earlier trial, namely, the hope of leniency. But defense counsel himself said at this trial that Yuin “wants to get a[*829] conviction here so that he can get the best possible deal he can get.” The suggestion clearly was that Yuin’s immediate object was to get Lombardi convicted, a motive that was not present at the first trial. Lombardi was not even apprehended until after the completion of the first trial. Therefore, the prior testimony was properly admitted.

Lombardi also claims that the district court erred in instructing the jury that Lombardi’s modest life style “would hardly suggest” that he could afford to buy large amounts of heroin for himself, thus allowing the jury to infer that Lombardi possessed the heroin with intent to distribute it. [2] But Judge Brieant’s statement fell well within the permissible range of the trial judge’s discretion to comment upon the evidence. Cf. United States v. Natale, 526 F.2d 1160, 1166-68 (2d Cir. 1975), cert. denied, 425 U.S. 950 (1976); United States v. Tourine, 428 F.2d 865, 869-70 (2d Cir. 1970), cert. denied, 400 U.S. 1020, 91 S.Ct. 581, 27 L.Ed.2d 631 (1971). And in any case, defense counsel had conceded to the court that “40 pounds would be kind of tough to use personally, I think , regardless of where you lived,” indicating the absence of any real issue as to the intent to distribute.

Finally, Lombardi urges us to remand this case for inquiry into the propriety of the handling of a diary Yuin kept from November 1974 to July 1975. During the trial of Cheung and Lai, the prosecutor learned of the existence of the diary, and notified the court. But later the prosecutor returned the diary to Yuin, apparently so that Yuin could select the portions as to which he wished to assert a privilege. Defense counsel in that case objected that Yuin had been given an opportunity to alter the diary, but the panel in United States v. Cheung, Slip op. 2063 (2d Cir. Feb. 28,1977), refused to reverse on that ground. [3] We agree with the Cheung panel that the possession and control of the diary could have been handled better, but we too conclude that the claim based on the incident is too speculative. Yuin only began to keep the diary after he was arrested, so there is little likelihood that it contained useful material for the defense. Indeed, counsel in the prior trial did not make any substantive use of the diary. Moreover, when Yuin took the stand at Lombardi’s trial, defense counsel hardly bothered to question him about the diary.

Judgment affirmed.

1

. F.R.Evid. 801(d)(1)(B) allows the admission of prior testimony of a witness if the statement is “consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive.”

2

. Judge Brieant instructed the jury as follows:

“There is no direct evidence that Lombardi actually distributed any narcotics. There is, however, some circumstantial evidence in the case bearing on his intent which the jury may consider in determining whether the drug was possessed with intent to distribute.
In that regard, the record appears to show that Lombardi lived modestly in an old tenement house on East Broadway, that he had a store in which items of small value were sold and that his life style would hardly suggest that he could pay such large amounts of money for heroin unless he was intending to resell it.
There is no indication that he himself was a user of heroin, and your common sense will tell you that users of heroin ordinarily do not buy such large quantities of almost pure heroin as was testified to by the witness Yuin in this case, so that in view of the situation of the defendant as appears in the evidence and the large quantity and high purity of the alleged heroin, you may, but you need not, infer from those circumstances alone that the purpose of acquiring the heroin, if he did so, was to possess it with intent to distribute it to others.
However, that’s a factual question and it is a question for your sole determination because you decide all issues of fact in the case.”
3

. The opinion in that case contains a full presentation of the facts regarding the diary and its use in the first trial.