778 F.2d 925 (2nd Cir. 1985), 96, United States v. Smith

Docket Nº:96, 97 and 138, Dockets 85-1081, 85-1088 and 85-1099.
Citation:778 F.2d 925
Party Name:UNITED STATES of America, Appellee, v. Ann SMITH, Lisa Shay, a/k/a
Case Date:December 03, 1985
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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778 F.2d 925 (2nd Cir. 1985)

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.

Nos. 96, 97 and 138, Dockets 85-1081, 85-1088 and 85-1099.

United States Court of Appeals, Second Circuit

December 3, 1985

Argued Sept. 4, 1985.

As Amended Feb. 26, 1986.

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[Copyrighted Material Omitted]

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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

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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.

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.

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...

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