The opinion of the court was delivered by: NICKERSON
Defendant Carmine Persico has been charged in six counts and has filed motions seeking various forms of relief.
The first count alleges a conspiracy from May 18, 1977 to November 1978 between Persico, Andrew T. Russo, Hugh McIntosh, Victor Puglisi, and others to defraud the United States and its courts and agencies and to commit various acts of bribery and obstruction of justice. 18 U.S.C. § 371. In substance this count alleges that the conspirators agreed they would pay Richard Annicharico, a special agent of the Internal Revenue Service posing as corrupt, to influence the decision of Persico's motion pursuant to 28 U.S.C. § 2255 seeking vacation of a fourteen year sentence, to arrange to have Persico brought from the United States Penitentiary in Atlanta, Georgia to the Metropolitan Correctional Center in New York, and to influence the disposition of criminal tax matters involving Russo, Charles Panarella and Christopher Furnari.
Counts two through six charge Persico with substantive offenses. Count two charges him and others with bribing Annicharico to make false representations, in violation of his lawful duty, in order to keep Persico in the Metropolitan Correctional Center and prevent his return to Atlanta. 18 U.S.C. §§ 201(b) and 2. Count three alleges that Persico and others bribed Annicharico to influence the decision in the proceedings to vacate sentence. 18 U.S.C. §§ 201(b) and 2. Count four alleges that Persico and others obstructed justice as to the same proceeding. 18 U.S.C. §§ 1503 and 2. Count five charges Persico and others with bribing Annicharico to influence Furnari's criminal income tax matter. 18 U.S.C. §§ 201(b) and 2. Count six charges Persico and others with obstructing justice as to that matter. 18 U.S.C. §§ 1505 and 2.
Each of Persico's contentions will be addressed in turn.
Persico moves to dismiss the indictment on the ground that the government's conduct constituted entrapment as a matter of law, interfered with his right to counsel, violated a duty to care for prisoners under government control, and was so outrageous as to deny him due process under the Fifth Amendment and the right to counsel under the Sixth Amendment.
Plainly the court cannot decide on the basis of the papers submitted whether Persico was entrapped as a matter of law. Under settled law his predisposition is critical to that issue. Hampton v. United States, 425 U.S. 484, 96 S. Ct. 1646, 48 L. Ed. 2d 113 (1976). Assuming that the Supreme Court has left open the question of whether a predisposed defendant in a "rare" case may defend on the ground that the government's part in the crime has reached "a demonstrated level of outrageousness," see Powell, J., concurring in Hampton v. United States, 425 U.S. at 495 n. 7, 96 S. Ct. at 1652 n. 7; United States v. Myers, et al., 510 F. Supp. 319 (E.D.N.Y. 1981, per Pratt, J.), the court deems it wise to defer consideration of this matter until the evidence has been presented at trial.
Persico moves to suppress conversations on January 11, 1978 between Persico, Annicharico and Special Attorney Joel Cohen of the Department of Justice's Organized Crime Strike Force in this district, on January 18, 1978 between Persico and Annicharico, and between Persico, his attorney Marc Rosenberg, Annicharico and Cohen, and on February 2, 1978 between Persico, McIntosh and Annicharico.
Persico claims that his statements during these conversations resulted from custodial interrogations within the meaning of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and that the warnings required by that decision were not provided. Each of the conversations was secretly recorded, and the transcripts are before the court.
In December 1977 Annicharico arranged for a writ of habeas corpus ad testificandum to bring Persico from Atlanta to New York. On the morning of January 11, 1978 he was brought to the Strike Force offices to speak with Annicharico and Cohen. Cohen told him that he had been brought there with the expectation that he would testify that morning before a grand jury investigating the homicide of Vincent Papa in the Atlanta Penitentiary. Cohen then asked if Persico had an attorney, and he responded that his attorney was Rosenberg with whom he had not conferred. Persico called Rosenberg's office and was informed that he was not in and would not be expected until the next day. In response to Annicharico's question Persico said that he did not wish to proceed without counsel, and Cohen said he would obtain a writ directing Persico's appearance later when counsel could attend. Persico was not questioned at all.
On the morning of January 18, 1978 Annicharico again brought Persico to the Strike Force offices. As they were coming upstairs from the basement detention area in this courthouse, Annicharico asked, "You know what to say at this thing?" and Persico responded, "Yeah." They then joined Cohen and Rosenberg. After Cohen explained that Persico would be brought before the grand jury to answer questions relating to the Papa investigation, Persico declared, "Well I have a statement on it." He then said that he knew nothing about Papa and first met him at the Atlanta prison. He added that he knew people who did business with Papa and that Papa was killed over his drug business in prison. Cohen told Persico that he would ask him specific questions in the grand jury regarding specific names "(because) it seems to me, reading between the lines that you know something." At this point Annicharico asked to speak privately with Cohen. They returned four and a half minutes later, and Cohen said that he would not bring Persico before the grand jury that day but would put over the proceeding for a while and perhaps bring him back at that time.
Annicharico then brought Persico downstairs to the detention area. During this time they had a conversation from which it could be inferred that Annicharico was purporting to act corruptly on Persico's behalf and with his encouragement or acquiescence.
On February 2, 1978 Annicharico spoke at length with McIntosh and Persico in this courthouse. Much of the discussion dealt with the pending motion in the section 2255 proceeding. References appear to have been made to paying Annicharico for his assistance in influencing the decision of the motion favorably to Persico and to paying a third person for submitting an affidavit supporting his position.
In Miranda v. Arizona, supra, the Supreme Court said that "without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelled pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely." 384 U.S. at 467, 86 S. Ct. at 1624. To give meaningful protection to Fifth Amendment rights the court forbade the use of statements by a defendant interrogated by officers unless he is informed that he has the right to remain silent, that anything he says may be used against him, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him. Id. at 444, 86 S. Ct. at 1612. Of course, these warnings are not required if the defendant's attorney is present at the interrogation. Id. at 466, 86 S. Ct. at 1623.
In Mathis v. United States, 391 U.S. 1, 88 S. Ct. 1503, 20 L. Ed. 2d 381 (1968), the Supreme Court held that the requirement of such warnings is not limited to interrogations of "one who is "in custody' in connection with the very case under investigation." Id. at 4, 88 S. Ct. at 1504. Mathis, serving a sentence in state prison, was questioned by an Internal Revenue Service agent about his federal income tax returns and made incriminatory statements. No counsel was present and no Miranda warnings given. On his appeal from his income tax conviction the government defended the admission of his statements on the ground that warnings were required only when a person is in custody in connection with the investigation which is the subject of the questioning. The Court rejected this argument, finding "nothing in ...