105 F.3d 82 (2nd Cir. 1997), 1522, United States v. Schmidt

Docket Nº:1522, Docket 95-1117.
Citation:105 F.3d 82
Party Name:UNITED STATES of America, Appellee, v. Lilly SCHMIDT, Defendant-Appellant.
Case Date:January 17, 1997
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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105 F.3d 82 (2nd Cir. 1997)

UNITED STATES of America, Appellee,


Lilly SCHMIDT, Defendant-Appellant.

No. 1522, Docket 95-1117.

United States Court of Appeals, Second Circuit

January 17, 1997

Argued May 9, 1996.

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Michael Young, New York City, for Appellant.

Ira M. Feinberg, Assistant United States Attorney, New York City (Mary Jo White, United States Attorney, Mei Lin Kwan-Gett, Robin E. Abrams, Assistant United States Attorneys, S.D.N.Y., New York City, of counsel), for Appellee.

Before: CARDAMONE, ALTIMARI, and PARKER, Circuit Judges.

CARDAMONE, Circuit Judge:

Lilly Schmidt (defendant or appellant) appeals from a judgment of conviction entered on February 21, 1995 by the United States District Court for the Southern District of New York before Judge Kimba M. Wood, after a jury trial. Schmidt, who at the time of the commission of the crime was confined in a state prison's mental unit, stands convicted of a plan to murder two federal agents, solicitation to commit that crime, and attempted escape from custody, for which she received a sentence of 30 years. The issue facing the district court was whether these criminal plans were the rantings of a person suffering from a mental disease or defect, or a well-planned scheme warranting a government sting operation that led to appellant's arrest, trial and conviction.

What the truth is regarding defendant's mental condition--a subject of this appeal--is a matter about which it is difficult to know anything for certain, for the truth on such a subject quite often lies deeply hidden. The issue was made even more puzzling when the government, which had insisted throughout Schmidt's trial that she was not incompetent, as she claimed, but merely malingering, changed position. In a later proceeding held in Texas, it alleged that Schmidt suffers from a serious mental disease.

A court decides an issue of mental competency by conducting hearings at which it entertains expert testimony from psychiatrists who have examined the defendant. That was done most thoroughly at every stage of this case by an experienced trial judge. While the "truth" regarding appellant's mental state at the time of the events for which she stands convicted may not ever be definitely known, we are satisfied that the proceedings conducted in the district court accorded her all the legal rights to which she was entitled, and the result reached should be affirmed.


  1. Plot To Escape

    While Schmidt was in the custody of the New York City Department of Corrections at Rikers Island in January 1992, awaiting trial on state fraud charges, her boyfriend used a counterfeit check to obtain her release. Using more counterfeit checks, the couple went on a spending spree for luxury goods, buying jewelry, paintings, and foreign currency.

    This criminal escapade ended on February 25 when appellant was arrested and later indicted on federal charges of conspiracy, bank fraud, and other crimes. Because of the pending state charges, she was returned to Rikers Island. Two special agents of the

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    Department of Defense Criminal Investigative Service, Kenneth Siegler and Kenneth Connaughton, transported defendant back and forth to federal court for her appearances before United States District Court Judge John E. Sprizzo. At this time, Schmidt was, at her own request, in the mental observation unit at Rikers Island.

    In May 1992 she began to plan a daring escape from custody. First, she contacted Annabelle Colon, another Rikers Island inmate, and asked her to hire two men to help her escape by killing the special agents while they transported her to federal court. When Colon acknowledged she had friends who could do this, Schmidt gave her detailed written and oral plans, and offered to pay Colon's friends $20,000 for their efforts. Upon Colon's later refusal to help, Schmidt turned to Nancy Vitello and Monica Odem, two other Rikers Island inmates. Schmidt gave them a letter with specific details regarding her escape plan and how she was to abscond from the country. The details included a physical description of the agents, their automobile, the route they travelled from Rikers Island to federal court, and the kinds of weapons they carried. Schmidt recommended three locations for the crimes to be committed, including a store where the agents usually bought her sodas she requested. Defendant promised to pay the hit men $100,000 each and Vitello and Odem $50,000 each.

    Vitello called Inspector John Cuff of the United States Marshals Service on June 8 and told him of Schmidt's plan to murder the two agents. He met Vitello three days later and she handed him Schmidt's written instructions. After consulting with the United States Attorney's Office the Inspector decided to conduct an undercover investigation. He told Vitello that he would impersonate a hit man named "Mike" who was willing to carry out the crime.

    After Vitello told Schmidt about "Mike," Inspector Cuff (posing as "Mike") received 15 phone calls from Schmidt between June 16 and June 23, 1992. Defendant gave the inspector instructions for the murders and her escape. She explained that the hit men would receive $100,000 each and that Vitello and Odem would receive $50,000 each, and that $100,000 would be given to the hit men to set aside as Schmidt's flight money. Patricia Scott, a friend of Schmidt's, would hold the money and deliver it to the hit men at a safe house. Inspector Cuff spoke to Scott twice and she told him she was holding a suitcase of Schmidt's that contained $500,000 in cash. The Inspector's phone conversations with Schmidt and Scott were tape-recorded and these recordings were later admitted into evidence at trial.

    As per Schmidt's instructions, the murder of the agents and breakout were set for June 24, a day scheduled for Schmidt to appear in federal court. Two deputy United States Marshals posing as hit men and impersonating Special Agents Connaughton and Siegler--whom they had ostensibly murdered and whose weapons and identification they now had--picked up Schmidt at Rikers Island, handcuffed her, told her that they were the hit men she hired, and spirited her out of the Rikers Island facility. They went to the designated "safe house" where Schmidt showed excitement about her escape, but no remorse over the agents' purported deaths. She was arrested there.

    A grand jury in the United States District Court for the Southern District of New York indicted Schmidt on three counts: attempted murder of federal agents, in violation of 18 U.S.C. §§ 1114, 2; solicitation of three other people to murder federal officers, see 18 U.S.C. §§ 373, 2; and attempted escape from federal custody, in violation of 18 U.S.C. §§ 751, 2. Although Schmidt had previously been found competent to stand trial in federal court in 1990 and in New York State Supreme Court in 1992, she alleged that she was not now competent to stand trial. Judge Wood conducted a hearing on November 24, 1992 examining that contention and found her competent.

  2. Pre-Trial Waiver of Counsel

    A day before trial, Schmidt requested the replacement of Anthony Ricco, Esq., the court-appointed counsel who had represented her in her federal case before Judge Sprizzo. Schmidt accused attorney Ricco of incompetence and disloyalty. Judge Wood held a hearing to decide whether to appoint new

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    counsel. The hearing revealed that Judge Sprizzo had appointed a lawyer to represent appellant for three months from February to April 29, 1992, before he asked to be relieved because of Schmidt's unreasonable demands. The next attorney appointed lasted only until June 24, 1992 because appellant tied up his entire office calling on both of his phone lines at the same time. When appointing attorney Ricco, Judge Sprizzo had stated that he would not appoint any additional lawyers for her and, that if she was dissatisfied, she would have to represent herself.

    Judge Wood then appointed attorney Ricco to be Schmidt's lawyer in the instant case, explaining that replacing him would further delay trial and effectively allow Schmidt to manipulate the workings of the court. At the pre-trial hearing, Schmidt said she would waive counsel and proceed pro se, whereupon Judge Wood asked Schmidt a series of questions to determine whether her waiver was knowing and voluntary.

    Based on its observation during this hearing, the trial court determined Schmidt was intelligent and had some familiarity with criminal proceedings, noting that she had helped other prison inmates with legal matters. It explained to Schmidt that self-representation would require her to demonstrate competence and might therefore conflict with a diminished capacity defense. Judge Wood informed Schmidt of the potential jail term she faced if convicted and strongly urged her not to represent herself. Schmidt nevertheless decided to waive her right to counsel and proceed pro se. The trial court then retained attorney Ricco as Schmidt's standby counsel.

  3. Trial Proceedings

    The government called Colon and Vitello as witnesses at trial to tell how Schmidt had approached them for help in murdering the two agents and escaping from custody. Special Agent Siegler, Inspector Cuff, and Deputy Marshal Leschorn testified regarding their roles in Schmidt's escape attempt. Two witnesses were called to rebut Schmidt's claim of diminished capacity. Dr. Lynda Smith-Harris, head psychiatrist at Elmhurst Hospital, diagnosed the defendant as suffering from an anti-social personality disorder. She explained that Schmidt did not suffer from a severe mental illness and that her symptoms of mental illness were faked. She observed that defendant acted incompetently only when she knew she was being watched by doctors, but otherwise acted appropriately. Dr. Smith-Harris concluded that Schmidt was neither psychotic nor delusional.

    Dr. Robert McFall, chief...

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