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U.S. Judge Pans Background Check for Trial Witness

Aug 17, 2007

By Anthony M. Destefano, Newsday, Melville, N.Y.

Aug. 18--A federal judge in Brooklyn has criticized prosecutors for not promptly discovering incriminating information about a key witness in an extortion case stemming from poker games at the Rasputin restaurant.

Witness problems and other issues led Judge Brian Cogan on Thursday to strongly hint to prosecutors that they should think about dismissing the indictment or coming to a settlement with the defendants, brothers Michael and Alex Mitselmakher of Brooklyn.

"Look, I don't want to [meddle] in what the government's doing with its cases," Cogan said. "I'm only just saying if there is a way for the government to exercise its options, now or soon might be a time to do it."

The Mitselmakhers, both born in Russia, are on trial on charges they tried to extort a $50,000 gambling debt from the witness, Zakhar Peysakhov. The Mitselmakhers, Peysakhov and others took part in poker games, some of which were held at the Rasputin in Brighton Beach, according to trial testimony.

On Friday defense attorneys Susan Kellman of Brooklyn and Andrew Frisch of Manhattan were trying to persuade Assistant U.S. Attorney Michael Warren and his supervisors to drop the case.

Problems began with Peysakhov when he didn't disclose his involvement in an auto insurance fraud scheme and filing of fraudulent credit card applications to the FBI until just before trial. As a result, the defense had to scramble for information to impeach his credibility.

But using an online search service, the defense discovered civil court files that contain false sworn statements made by Peysakhov, the defense revealed in court Thursday. Those statements cast doubt on Peysakhov's credibility, Frisch said.

During a discussion with the lawyers outside the presence of the jury, Cogan indicated he was disturbed that the government didn't find out on its own about the sworn statements.

"Something is very wrong when the defense lawyers ... can find information in publicly available court filings that the government doesn't even look for," Frisch said Friday.

"I think this case ... isn't worth the court's time. I think it was a mistake to bring it," Frisch told Cogan.

However, Warren insisted in court that surveillance tapes corroborate the threats.

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