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UNITED STATES v. TRZASKA

April 13, 1995

UNITED STATES OF AMERICA against EDWARD TRZASKA, Defendant.


The opinion of the court was delivered by: EDWARD R. KORMAN

 Korman, J.

 At a pre-trial suppression hearing, I granted Edward Trzaska's motion to suppress a rifle and ammunition that were obtained as part of an illegal search of his apartment. United States v. Trzaska, 866 F.2d 98 (E.D.N.Y. 1994). The defendant did not move to suppress a statement he made to one of the Probation Officers after the evidence was found in his apartment -- "I'm a drug addict with this. Its a sickness." At the outset of the trial, however, the Assistant United States Attorney commendably volunteered not to offer this statement, because "having re-examined the issue, and in light of my role in this litigation . . . a fair reading of your opinion . . would [suggest] that it was the fruit of the search, so I just want Your Honor to know we will not bring it up." Tr. at 3.

 Edward Trzaska was then tried and convicted of possessing a firearm and ammunition in violation of 18 U.S.C. ยง 922(g)(1) (Supp 1994). The firearms that were the subject of the indictment were found in a container in a garage that was rented by the defendant. In the course of the trial, the defendant's son, Kevin Trzaska, testified that, at his father's direction, he had picked up these firearms from his father's friend Hank Wagman. The following exchange took place between defense counsel and Kevin on direct examination:

 
Q. Do you know why your father asked you to pick them up?
 
A. He didn't want nothing to do with them anymore.
 
Q. Did he tell you why didn't want to have anything to do with them?
 
A. Because he had too many problems in his past, and he -- he wanted to put it down.

 Tr. at 200.

 These out-of-court statements of Edward Trzaska were offered in order to prove that he was no longer involved with guns and that he was, therefore, not illegally in possession of the firearms as charged. Indeed, in summation, defense counsel relied upon them for this very purpose:

 
"He (Kevin) told you his father did not want to have anything to do with them (the guns). He knew it was trouble. He knew that he was a convicted felon, and therefore was in a different category than his son. He knew that if he took those guns into his possession and kept them, that not only was he risking the violation of parole, but he was also risking sitting right where he's sitting right now. So he tells his son, 'they're yours.'"

 Tr. at 293-94.

 Trzaska's statement to the Probation Officer -- "I'm a drug addict with this; its a sickness" -- was made with respect to the munitions found in his apartment and not those firearms found in the garage that the defendant was charged with possessing and that the defendant's son claimed were his. Nevertheless, the defendant's admission that he suffered from a narcotic-like addiction to guns, combined with the fact that firearms at issue were found in the garage that he rented, undermined the credibility of the out-of-court statement that was attributed to him by his son. Under these circumstances, I concluded that the previously excluded admissions to the Probation Officer could be used to impeach the out-of-court statement the defendant made to his son regarding his intent to relinquish ownership of the firearms found during the legal search of the garage.

 The jury was given the following limiting instruction at the time the previously excluded statement was admitted: " . . . the limited purpose and the only purpose that I'm admitting this testimony is for you to evaluate . . . the credibility of the statement that was attributed to the defendant by his son." Tr. at 271. Moreover, the jury was warned that the firearm and ammunition illegally seized from the defendant's apartment that prompted his statement to the Probation Officer could not be considered as evidence of defendant's guilt under the indictment but that "the testimony ...


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