United States v. James Donald Smith

833 F.2d 213, 1987 U.S. App. LEXIS 14993, 24 Fed. R. Serv. 283
CourtCourt of Appeals for the Tenth Circuit
DecidedNovember 9, 1987
Docket86-1351
StatusPublished
Cited by32 cases

This text of 833 F.2d 213 (United States v. James Donald Smith) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. James Donald Smith, 833 F.2d 213, 1987 U.S. App. LEXIS 14993, 24 Fed. R. Serv. 283 (10th Cir. 1987).

Opinion

HOLLOWAY, Chief 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. §§ 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.

I.

A. Preindictment proceedings

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.

*215 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 coworkers 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.” Ill 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:

GRACE: If [Smith] comes home tonight
ASKEW: Uh-huh.
GRACE: ... cause he’s got a meeting
ASKEW: Uh-huh.
GRACE: ... uh, early ...
ASKEW: Uh-huh.
GRACE: ... I could probably get some information for you ...

I Supp.R. document 1, at 7-8. And in a conversation on July 11, Grace implicated her husband again:

ASKEW: Okay, do you, okay, do you have any idea when you might hear something?
GRACE: I can check into it. James will pick me up tonight.
ASKEW: He’s going to pick you up?
GRACE: Yeah.
ASKEW: Are you doing James, James is the one? So, with leaving James, you're gonna lose your contact, aren’t you (unintelligible).
GRACE: Probably.

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 *216 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.” Ill 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.” Ill R. 67.

B. Pretrial Proceedings

Smith and Grace were indicted on two counts of theft of goods from interstate commerce in violation of 18 U.S.C.

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Cite This Page — Counsel Stack

Bluebook (online)
833 F.2d 213, 1987 U.S. App. LEXIS 14993, 24 Fed. R. Serv. 283, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-james-donald-smith-ca10-1987.