decided: March 4, 1976; As Amended May 11, 1976.
Appeal from a judgment of conviction on one count of conspiracy, 18 U.S.C. § 371, and one count of armed bank robbery, 18 U.S.C. § 2113(d), after a jury trial before Jack B. Weinstein, J., in the United States District Court for the Eastern District of New York.
Mulligan, Oakes and Meskill, Circuit Judges.
Charles Lucchetti appeals from a judgment of conviction for conspiracy and armed bank robbery in violation of 18 U.S.C. §§ 371 and 2113(d) after a jury trial before Jack B. Weinstein, District Judge, in the United States District Court for the Eastern District of New York. Lucchetti previously had been tried and convicted on the same charges. That conviction, however, was vacated by Chief Judge Jacob Mishler upon Lucchetti's 28 U.S.C. § 2255 motion. Chief Judge Mishler concluded that the prosecution's failure to reveal that its chief witness had testified falsely about promises made in return for his testimony required that the initial judgment be vacated and Lucchetti retried. Lucchetti's major contention on this appeal is that certain admissions made by him while incarcerated after the first conviction and while his direct appeal was still pending should not have been admitted into evidence at the subsequent trial. He further contends that the district court committed plain error within the meaning of Fed. R. Crim. P. Rule 52(b) by failing to instruct the jury, as required by 18 U.S.C. § 3501, that it must consider the evidential weight of the confessions under all of the circumstances. We affirm the judgment of conviction.
Lucchetti has not attacked the sufficiency of the evidence against him, nor do we think that he can successfully do so. Consequently, the facts necessary for the resolution of the issues presented on this appeal relate more to the unusual conditions surrounding Lucchetti's admissions of guilt than to the underlying facts upon which he was convicted.
The appellant's first jury trial concluded with a verdict of guilt entered on August 5, 1971. The trials of his co-defendants, David Williams and Jack Dempsey,*fn1 had been severed immediately before Lucchetti's trial began on August 2, 1971. Williams and Dempsey both testified against Lucchetti, their testimony being the primary evidence against him. On October 15, 1971, Chief Judge Mishler sentenced Lucchetti to a term of twenty years imprisonment and a $10,000 fine on the robbery count and a concurrent term of five years imprisonment and an additional fine of $5,000 on the conspiracy count. Lucchetti then appealed his conviction to this Court. Subsequent to Lucchetti's conviction, both of his co-defendants entered pleas of guilty to the conspiracy count; Williams was sentenced to a five year period of probation and Dempsey to a five year term of imprisonment.
Prior to Chief Judge Mishler's imposition of sentence, Lucchetti initiated what was to become a long series of letters to F.B.I. officials in order to secure interviews with agents. On September 1, 1971, Lucchetti was first interviewed by Agents Long and Achenbach at the Federal House of Detention. At the interview, an "Advice of Rights" form was read to Lucchetti, but he refused to sign it. It appears that the only matter discussed at this meeting was Lucchetti's surprise at having been convicted on the basis of Williams' and Dempsey's testimony.
The next communication from Lucchetti to the F.B.I. was a letter dated March 20, 1972. In that letter Lucchetti requested an interview to discuss alleged civil rights violations occurring at the Suffolk County Jail, where he had been transferred to await the disposition of state charges which were pending against him for his participation in an attempted bank robbery on May 13, 1971. The agents responded to the request by interviewing Lucchetti at the jail on March 27, 1972. Before any discussions of civil rights violations had begun, however, Lucchetti commented that his brother-in-law, Larry Russo, had received support from the F.B.I. in having a sentence reduced in exchange for cooperation. He then made a cryptic hypothetical reference to knowledge that he might have about several bank robberies which occurred after his incarceration. Upon questioning about the robberies, however, he smiled but made no further comment. The agents took note of Lucchetti's civil rights complaints and, after the interview had ended, investigated the allegations, finding them to be without merit.
By letter dated May 31, 1972, Lucchetti requested another interview with Agent Achenbach; an interview was conducted at the jail on June 5, 1972. At the beginning of the interview, when Lucchetti began to volunteer information about bank robberies, Agent Long, who had accompanied Agent Achenbach to the jail, promptly advised Lucchetti of his full Miranda*fn2 rights. Lucchetti responded by specifically stating that he did not need an attorney, as he was representing himself. He also indicated that he understood all of his rights. When Agent Long reminded him that his appeal was still pending before this Court, Lucchetti again stated that he understood his rights and that he had discharged his trial attorney, Kenneth Rohl. He never mentioned that Henry Boitel was representing him on the appeal. Lucchetti then claimed that he had evidence that Dempsey, one of the chief witnesses against him, had lied at the trial when he had denied that the prosecution had promised him anything in return for his testimony. After revealing that the source of this evidence was Dempsey's wife who, according to Lucchetti, would say anything that he wanted her to say, he again stated that he had information that would be valuable to the government. Long stated that any such information would be given to Assistant United States Attorney Moore, the prosecutor in his case, and through him to the court.
On June 8, 1972, Lucchetti requested another interview with Agent Achenbach. On June 14, 1972,*fn3 Agents Long and Achenbach returned to interview Lucchetti at the Suffolk County Jail. Lucchetti was informed of his rights and was read the "Advice of Rights" form, which he again declined to sign. Although the purported reason for this interview was again to complain about deprivations of his civil rights at the jail, Lucchetti confided to the agents that the real purpose was for him to ascertain the possibility of receiving some reduction in his sentence in exchange for providing valuable information to the government. Agent Long indicated that he would make arrangements for Lucchetti to have an interview with an Assistant United States Attorney.
Before such an interview could be scheduled, Lucchetti sent another letter, dated June 20, 1972, requesting a further interview with Agent Achenbach. On June 26, 1972, Agent Long informed Lucchetti that an interview with Assistant United States Attorney Moore had been scheduled for July 17, 1972. Lucchetti complained that certain of his letters had not been mailed by the authorities at the jail; he also expressed his desire to cooperate with the government.
The next day, June 27, 1972, Lucchetti sent yet another letter requesting a meeting with the agents. In response to that letter Agents Long and Achenbach returned to the jail on July 17, 1972, the date originally scheduled for Lucchetti's interview with Moore. The agents informed Lucchetti that Moore could not see him on that day but would do so in the near future. Lucchetti again indicated in a "hypothetical fashion" that he possessed information about certain crimes, including robberies and a homicide, and criminal activities involving a prominent Suffolk County attorney and a Suffolk County police officer.
Four days later, on July 21, 1972, Lucchetti was interviewed by Moore and Agent Long. He repeated his "hypothetical" knowledge mentioned earlier and inquired of Moore what consideration he could expect to receive for revealing that information. Mr. Moore made no promises of leniency but told Lucchetti that he would inform Chief Judge Mishler and the United States Parole Board of any valuable cooperation by Lucchetti. Lucchetti indicated that he wanted to think over the matter and that if he decided to cooperate, he would contact the government by writing another letter alleging civil rights violations. Lucchetti told Agent Long that he was using the civil rights ruse as a means of concealing his cooperation with the federal authorities from people at the Suffolk County Jail.
On August 3, 1972, Agents Long and Achenbach returned to the jail in response to a letter written by Lucchetti shortly after the July 21 interview. Lucchetti informed the agents that he wanted to discuss four particular robberies, including the one for which he had previously been convicted. Because Agent Long was already aware, from prior investigations, that Lucchetti had been involved in the planning of all of these robberies, he not only gave Lucchetti four separate "Advice of Rights" forms (one for each separate robbery discussed) which Lucchetti signed, but also specifically reminded him that his petition for a writ of certiorari was pending in the United States Supreme Court. Lucchetti again said that he did not need counsel since he was representing himself and further indicated that he wanted to cooperate because he felt that his petition would be denied by the Supreme Court.
Detailing his own involvement in the four robberies, Lucchetti also implicated John Greenemeyer and Robert Chaffin, both of whom were deceased at the time of the interview, and Kenneth Rohl, his attorney in the first trial before Chief Judge Mishler. According to Lucchetti, Rohl took part in the robberies by "washing" or exchanging possibly marked bills for "clean" ones. Lucchetti was unsure of certain of the details of Rohl's "washing" operation, so the interview was broken off to be continued at a later date after Lucchetti had had a chance to "think it over."
On August 8, 1972, the agents returned to the jail to continue the interview. Lucchetti was again given the "Advice of Rights" form, but he indicated that such advice was not necessary since he considered this interview to be merely a continuation of the one held on August 3, 1972. Nevertheless, Agent Long read the contents of the forms on four occasions during the interview and Lucchetti again replied that he both understood his rights and was representing himself. The substance of this interview centered on the four bank robberies.
Lucchetti was interviewed at the jail further on August 14, 1972, August 25, 1972, September 6, 1972 and September 10, 1972. On each occasion he was advised of his rights, and at all but one of the interviews, he executed written waivers of those rights. During these interviews Lucchetti discussed Attorney Rohl's misconduct at the first trial and his involvement in criminal activity, identified certain individuals from bank surveillance photographs, and advised the agents that Larry Russo had recently obtained a large amount of money, presumably as the result of his participation in a recent bank robbery. Lucchetti indicated that his wife, Barbara, was holding the money at her house. As a result of the last revelation Assistant United States Attorney Moore conducted a meeting in his office on September 12, 1972 with Agent Long, Lucchetti, his wife, and his sister-in-law, Elaine Switzer. After Moore had assured the women that he did not wish to prosecute them and that his primary intent was to recover the money, Lucchetti and the women discussed the matter privately. Later that day the women turned over $7,800 to the F.B.I. agents.
Subsequently, on September 27, 1972, October 2, 1972 and October 3, 1972 Lucchetti was interviewed further. He executed copies of the "Advice of Rights" form on the first two occasions. On those occasions the purpose of the interviews appears to have been to try to locate Russo and his alleged accomplice in recent robberies. On the October 3, 1972 visit, Agent Long informed Lucchetti that he had arranged an interview with a member of the Suffolk County District Attorney's Office as Lucchetti had requested. Lucchetti's meeting with Patrick Henry of that office took place on the following day. At that meeting Lucchetti was again informed of his rights. He replied that he was representing himself and then revealed to Mr. Henry the same "hypothetical" information with which he had approached Moore earlier. Lucchetti requested consideration on the state charges pending in Suffolk County from the May 13, 1971 attempted bank robbery. Mr. Henry indicated that he would discuss the matter with his superior.
During the week of October 7, 1972, the F.B.I. received nine letters from inmates of the Suffolk County Jail, including Lucchetti, which letters alleged that there were "ten torture chambers" located in the jail. Lucchetti's letter also contained a request for an interview, to which Agents Long and Achenbach responded on October 12, 1972. Lucchetti informed the ...