U.S. v. Smith, s. 96

Citation778 F.2d 925
Decision Date26 February 1986
Docket NumberNos. 96,D,97 and 138,s. 96
Parties19 Fed. R. Evid. Serv. 1590 UNITED STATES of America, Appellee, v. Ann SMITH, Lisa Shay, a/k/a "Lisa Smith", Robert Smith, and Donna Smith, Defendants, Ann Smith, Lisa Shay, a/k/a "Lisa Smith" and Robert Smith, Defendants- Appellants. ockets 85-1081, 85-1088 and 85-1099.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Donald N. Silverman, White Plains, N.Y. (Silverman & Sapir, of counsel), for appellant Lisa Shay.

Theodore Krieger, Westport, Conn., for appellant Ann Smith.

Barry B. Silver, Newburgh, N.Y. (Silver, Forrester & Schisano, of counsel), for appellant Robert Smith.

Warren N. Eggleston, Asst. U.S. Atty., New York City (Rudolph Giuliani, U.S. Atty., S.D.N.Y., John F. Savarese, Asst. U.S. Atty., New York City, of counsel), for appellee.

Before FRIENDLY, PIERCE and PRATT, Circuit Judges.

GEORGE C. PRATT, Circuit Judge.

Robert Smith, his sister, Ann Smith, and her daughter, Lisa Shay, appeal from judgments of conviction entered on jury verdicts in the United States District Court for the Southern District of New York, Lee P. Gagliardi, Judge. The appeal of the fourth defendant, Donna Smith, Robert's wife, was dismissed by order of this court dated July 1, 1985. All four defendants were convicted under 18 U.S.C. Sec. 371 of conspiracy to violate 18 U.S.C. Secs. 2312, 2313, and 844(i) by transporting, receiving, and destroying by fire stolen vehicles in interstate commerce. The four defendants were also convicted under 18 U.S.C. Sec. 2313 of knowingly receiving, concealing, and disposing of a stolen vehicle that had been transported in interstate commerce--Robert and Donna with respect to a 1979 brown Corvette, and Ann Smith and Lisa Shay with respect to a 1980 white Corvette. We affirm the convictions of Robert Smith and Ann Smith. Since it is not clear whether the district court considered whether the interrogation of Shay violated her sixth amendment right to counsel, we remand her case to allow that court to address the issue.

BACKGROUND

Alerted to problems with the title to two Corvettes, agents of the Federal Bureau of Investigation began an investigation that ultimately disclosed that the cars had been stolen. The government's primary source of evidence in this case was the testimony, given pursuant to a cooperation agreement with the government, of Roger Keller, a major participant in the crimes charged. The evidence established that Keller agreed with W.R. Smith to steal a Corvette for Smith's sister-in-law, Donna Smith.

Under the pretense of taking a test drive, Keller stole a 1979 brown Corvette bearing vehicle identification number (VIN) 1Z8789S404389 from a dealer in Tampa, Florida on June 10, 1983. Accompanied in another car by W.R. Smith, W.R.'s wife Prudence, and their three children, Keller drove the Corvette to the home of Robert and Donna Smith in Maybrook, New York. Robert Smith had earlier wired $500 to W.R. Smith in Florida to cover the expenses of the trip to New York.

Once the car was safely secreted in the Smith's garage, Keller, W.R. Smith, and Robert Smith discussed the need to remove the VIN number plate from beneath the window molding. After Donna Smith had paid Keller and W.R. Smith $2,500, the whole group sat down in Robert and Donna Smith's kitchen where Keller told them how he had stolen the car.

Several days after delivering the car to Robert and Donna Smith, Keller attended a picnic with the Smith family in Stroudsburg, Pennsylvania. While there, he was told by W.R. Smith that W.R.'s and Robert's sister, Ann Smith, was also interested in obtaining a stolen Corvette. On June 23, 1984, Keller, pretending to be a buyer responding to a classified advertisement, convinced To conceal these two thefts, Keller next stole two VIN number plates from the Doug Griffith Chrysler-Plymouth dealership in Baltimore, Maryland, which he used to apply for new certificates of title in Virginia. Keller had informed Ann Smith that the VIN plate would have to be removed from the white Corvette, but she had been unsuccessful in efforts to do this. Therefore, Keller, W.R., and Prudence Smith went back to Honesdale, Pennsylvania, to meet with Ann Smith. Keller and Ann Smith then travelled approximately 20 miles outside Honesdale to a deserted church parking lot where they met Lisa Shay, who was waiting there with the white Corvette. With both Ann Smith and Lisa Shay present, Keller removed the original VIN plate and replaced it with one of those he had stolen in Baltimore. Shay then left in the Corvette, and Keller returned to Honesdale with Ann Smith.

Marisa Esposito of Rocky Hill, Connecticut, to allow him to test drive her 1980 white Corvette, which bore VIN number 1Z878AS421083. Keller, again followed by W.R., W.R.'s wife Prudence, and their three children, drove to Honesdale, Pennsylvania, where they met Ann Smith and her daughter, Lisa Shay, at a motel and delivered the car in exchange for $6,000 from Ann Smith.

Later that day, Keller drove to Robert and Donna Smith's home in Maybrook, New York, where he and W.R. Smith, in the presence of Robert Smith, attached the other stolen VIN plate to the 1979 Corvette. Following the receipt of the certificates of title from Virginia, both cars were ultimately registered--the 1979 Corvette in New York, and the 1980 Corvette in Pennsylvania.

Shortly after the FBI began to investigate the discrepancies in the titles to the vehicles, both cars were found burned, almost beyond identification. The 1980 Corvette was found approximately 3 1/2 miles from Robert and Donna Smith's home in Maybrook, New York, while the 1979 Corvette was discovered in the rear of a truckyard at which Robert Smith was employed. The latter car was located two days after an investigator for the New York Department of Motor Vehicles was told by Donna Smith that the car had been sold.

DISCUSSION
A. Ann Smith.

Ann Smith raises two grounds for appeal. First, she contends that on the redirect examination of Keller, the prosecutor's introduction into evidence of the cooperation agreement between Keller and the government was inherently prejudicial because it improperly bolstered Keller's credibility. On this issue the law in this circuit is clear. The entirety of a cooperation agreement between the government and a witness may not be admitted into evidence on direct examination before the credibility of that witness has been challenged. See United States v. Borello, 766 F.2d 46, 56 (2d Cir.1985). Although the prosecutor may on direct examination probe a witness's motivation for cooperating with the government, introduction of the entire agreement into evidence at that stage is viewed as prejudicial because it tends unduly to bolster a witness's credibility. United States v. Edwards, 631 F.2d 1049, 1052 (2d Cir.1980).

An exception to this general rule allows a prosecutor to elicit testimony on the truth-telling portions of a cooperation agreement on direct examination if the witness's credibility has been attacked by defense counsel in opening argument. See United States v. Jones, 763 F.2d 518, 522 (2d Cir.1985); United States v. Maniego, 710 F.2d 24, 27 (2d Cir.1983). Moreover, once a witness's credibility has been attacked on cross-examination, it is permissible for the prosecutor to introduce the entire agreement into evidence on redirect examination to rehabilitate that witness. United States v. Edwards, 631 F.2d at 1051 (citing United States v. Arroyo-Angulo, 580 F.2d 1137 (2d Cir.), cert. denied, 439 U.S. 913, 99 S.Ct. 285, 58 L.Ed.2d 260 (1978)). Here, Judge Gagliardi correctly found that Keller's credibility had been attacked Ann Smith's second contention is that certain statements made in summation by the Assistant United States Attorney were prejudicial. It is well-settled that both the "prosecution and defense are entitled to broad latitude in the inferences they may suggest to the jury during closing arguments", provided they do not misstate the evidence, refer to facts not in evidence, or express counsel's personal belief as to guilt or innocence. United States v. Suarez, 588 F.2d 352, 354 (2d Cir.1978). We have reviewed all of Ann Smith's objections to the summation, but find only one of them worthy of discussion here. The objection we address is the prosecutor's argument in summation "that the defense story simply defies common sense. In deciding whether the defense story is true, you can consider interest. No one has a greater, more personal interest in the outcome of this case than the defendants." After a defense objection to this statement was overruled, the prosecutor continued: "It is for you to decide whether that great interest has shaped defendants' story." Ann Smith protests that this amounted to prejudicial error because it suggested to the jury that she was a liar.

by Ann Smith's counsel in both his opening statement and on cross-examination. Therefore, under our precedents the introduction of the cooperation agreement during the prosecution's redirect examination of Keller was proper.

Even assuming that it would have been improper for the prosecutor expressly to state that Ann Smith was lying, compare United States v. Drummond, 481 F.2d 62, 64 (2d Cir.1973) (conviction reversed when prosecutor stated, inter alia, that defendant's "testimony is so riddled with lies it insults the intelligence of 14 intelligent people sitting on the jury") with United States v. White, 486 F.2d 204, 206-07 (2d Cir.1973) (prosecutor's two assertions that defendant was lying, and repeated statements that defendant's story was fabricated, held not to warrant reversal, since prejudice to defendant was minimal), cert. denied, 415 U.S. 980, 94 S.Ct. 1569, 39 L.Ed.2d 876 (1974) and United States v. Williams, 529 F.Supp. 1085, 1106-07 (E.D.N.Y.1981) (prosecutor's contention in summation that defendants had lied in their trial testimony held proper...

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