U.S. v. Smith, 86-1351
| Decision Date | 09 November 1987 |
| Docket Number | No. 86-1351,86-1351 |
| Citation | 833 F.2d 213 |
| Parties | 24 Fed. R. Evid. Serv. 283 UNITED STATES of America, Plaintiff-Appellee, v. James Donald SMITH, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Rufus O. Wilderson, Denver, Colo. (Thomas P. Johnson, Mayer, Brown & Platt, Denver, Colo., was also on the briefs), for defendant-appellant.
Catherine M. Goodwin, Asst. U.S. Atty., Denver, Colo. (Robert N. Miller, U.S. Atty., Denver, Colo., was also on the brief), for plaintiff-appellee.
Before HOLLOWAY, Chief Judge, SEYMOUR, Circuit Judge, and SAFFELS, District Judge *.
Defendant, James Donald Smith ("Smith"), was convicted by a jury on two counts of possession of goods stolen from interstate commerce in violation of 18 U.S.C. Secs. 659 and 2 (1982). On appeal, Smith argues that the trial court erred by admitting four tape recorded conversations, and transcripts of them, between his wife and a government informant in evidence under the coconspirator's statement exception of Fed.R.Evid. 801(d)(2)(E). We affirm.
Considered in the light most favorable to the government, as it must be after the guilty verdict, the evidence tends to show the following. Between December 27, 1984 and January 24, 1985, two IBM personal computers were stolen from the Continental Airlines freight and baggage storage area at Stapleton International Airport in Denver, Colorado. The first computer was part of a larger shipment of computers in transit from California to Washington, D.C. that had been held over in Denver between December 27, 1984 and January 1, 1985. When the shipment had first arrived in Denver, inventory was taken; when it finally arrived in Washington and was re-inventoried, one computer was missing. The second computer, which was taken on January 24, 1985, belonged to a passenger on Continental Airlines. The computer had been shipped as part of the passenger's personal baggage and failed to appear for pick-up with the rest of his luggage.
At the time the two thefts occurred Smith was employed by Continental as a member of the airplane towing crew. In December 1984, members of the towing crew were responsible only for towing planes to and from the airport gates. In early January 1985, however, they were assigned the additional duty of helping to load and unload the aircraft. Members of the towing crew--as well as most other Continental employees--had access to the freight and baggage storage area.
Smith was not working on December 27, 1984, the day the computer shipment from which the first computer was taken arrived in Denver. However, he did work several of the days during which the computer shipment was being stored in Denver. Smith was not working on January 24, 1985, the day the second computer was missed.
It was never discovered who actually took the computers. When his wife, Mary Grace Smith ("Grace"), attempted to sell the two computers to several of her co-workers at the Internal Revenue Service in January and February, 1985, however, suspicion centered on Smith. Nonetheless evidence of a link to Smith was only circumstantial. When Grace's co-workers inquired about the source of the computers, Grace responded at various times that they were from "a friend that was a distributor," III R. 11 (testimony of Mr. Tanner); "a computer salesman, or representative," III R. 41 (testimony of Mr. Sanborn); "someone who was in retail sales or was a salesman," III R. 83 (testimony of Mr. Askew); and "somebody who worked with Mr. Smith," V R. 14 (testimony of Mr. Phelps).
Although at least one of Grace's co-workers, Mr. Askew, declined to purchase one of the computers because of the suspiciously low price, Grace eventually sold both of the computers. The first computer was sold to a co-worker on February 12, 1985, after he inspected it at Smith's home. The second computer was sold from Smith's home to another co-worker on March 8, 1985. The purchase price of each computer was $400, although the retail value of such computers was between $2,500 and $3,000. The proceeds were deposited by Grace in her personal bank account. Smith was not present during any of the sale transactions. When the price for the first computer was being negotiated, however, Grace at one point commented that "she would have to call [Smith] and have him get ahold of the distributor and check with him if that price would be okay." III R. 14.
In June 1985 Askew, the I.R.S. employee who had initially decided not to purchase a computer from Grace, was approached by an inspector with the I.R.S. and asked to attempt to acquire a computer from Grace. Askew agreed. Between June 4 and June 11, Askew recorded a series of conversations with Grace in which he inquired into the availability and the source for the computers. Although Grace initially identified the source as a "salesman for the [computer] company," I Supp.R. document 1, at 4-5, she implied, somewhat equivocally, that Smith was somehow involved in the acquisition process. On June 4, for instance, Askew asked if he Grace might know by the next day about the availability of a computer and its price. Grace responded:
I Supp.R. document 1, at 7-8. And in a conversation on July 11, Grace implicated her husband again:
I Supp.R. document 4, at 3-4.
On the strength of the tape recorded conversations, a Federal Bureau of Investigation agent, Rose, questioned Smith about the thefts on October 7, 1985. In response to questions about how two computers stolen from Continental came to be sold by Grace, Smith denied any knowledge of the computers, stating that he "wasn't aware that his wife had ever had any computers ... wasn't aware that his wife had ever sold any computers [and] ... had not seen any computers in his home." III R. 62. Three days later, on October 10, Rose again questioned Smith, this time while Grace was present. At that session, Smith claimed that he believed the computers had been misdelivered by either the Postal Service or U.P.S. In addition, he suggested that Continental was "setting him up," III R. 65, and that the I.R.S. "made his wife [sell] the computers." Id. Finally, on November 21, after Smith's arrest, Rose interrogated Smith for a third time. When questioned about the computers, Smith "insisted that the computers found at his home had been left there on the front step." III R. 67.
Smith and Grace were indicted on two counts of theft of goods from interstate commerce in violation of 18 U.S.C. Secs. 659 and 2 (1982). A superseding indictment charged instead two counts of possession of goods stolen from interstate commerce in violation of 18 U.S.C. Secs. 659 and 2 (1982).
On May 14, 1986, a hearing was held to consider several pretrial motions. First, motions by both Smith and Grace to sever were granted on the ground that their defenses were antagonistic. Then, the court turned its attention to Smith's motion for a James hearing, see United States v. James, 590 F.2d 575 (5th Cir.), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979), to determine whether the taped conversations between Grace and Askew should be admitted as "statement[s] by a coconspirator of a party during the course and in furtherance of the conspiracy." Fed.R.Evid. 801(d)(2)(E).
In arguing that the tapes were inadmissible hearsay, Smith contended that the evidence failed to show by a preponderance that a conspiracy existed. Alternatively, he argued that any existing conspiracy had ended in March with the sale of the second computer, three months before the conversations between Grace and Askew took place. Therefore, he insisted, the evidence was inadmissible under Fed.R.Evid. 801(d)(2)(E). The government, on the other hand, claimed that evidence of an existing--and continuing--conspiracy was sufficient to meet the preponderence of the evidence test. It introduced evidence that: (1) two computers were stolen from the Continental storage area in Denver; (2) Smith was employed by Continental and had access to the computers during the time they were stolen; (3) Smith's wife, Grace, sold the two computers from their home to two of her co-workers at the I.R.S. in Denver; (4) Grace and Smith lived together before, during and after the thefts and sales of the computers; and (5) Smith admitted he saw the computers in his home.
After considering the testimony presented at the James hearing, the trial court agreed with the government:
[B]ased only ... on independent evidence [other than the tapes themselves] I find that the preponderance of the evidence ... shows that the defendant, James Donald Smith, was employed by Continental Airlines, and through his employment there had access to the goods that were allegedly stolen goods.
I further find that Mr. Smith has admitted that he saw two computers at his home which he shared with co-defendant Mary Grace Smith.
I find that they were, at the appropriate times involved in this case, married and living together in a very close and confidential relationship.
And I further find that the government produced evidence that Mrs. Smith actually engaged in acts of selling without reference to her statements that are in dispute here....
And further, there is independent proof that the source of those stolen computers is the defendant James Donald Smith's employer, Continental Airlines.
And from those facts ... I find and conclude...
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