U.S. v. Lawson, 704

• Decision Date: 29 June 1982
• Docket Number: No. 704,D,704
• Parties: 10 Fed. R. Evid. Serv. 1656 UNITED STATES of America, Plaintiff-Appellee, v. David R. LAWSON, Defendant-Appellant. ocket 81-1267.
• Court: U.S. Court of Appeals — Second Circuit

Page 688

683 F.2d 688

10 Fed. R. Evid. Serv. 1656

UNITED STATES of America, Plaintiff-Appellee, v. David R. LAWSON, Defendant-Appellant.

No. 704, Docket 81-1267.

United States Court of Appeals, Second Circuit.

Argued Feb. 16, 1982.

Decided June 29, 1982.

Steven Lloyd Barrett, The Legal Aid Society Federal Defender Services Unit, New York City, for defendant-appellant.

Kathleen M. Mehltretter, Asst. U. S. Atty., Buffalo, N. Y. (Roger P. Williams, U. S. Atty., W. D. N. Y., Buffalo, N. Y., of counsel), for plaintiff-appellee.

David R. Lawson filed a brief pro se.

Before OAKES, TIMBERS and WINTER, Circuit Judges.

RALPH K. WINTER, Circuit Judge:

David R. Lawson appeals his conviction for bank robbery in the United States District Court for the Western District of New York, John T. Curtin, Chief Judge, after a jury trial. Appellant was sentenced on three counts to concurrent prison terms of 12 years, 10 years and 12 years, respectively. Lawson raises numerous issues on this appeal, including (1) the admission of statements he made in connection with an offer to plead guilty; (2) rulings limiting cross-examination as to the relationship between two prosecution witnesses; and (3) alleged errors in various other rulings. ¹

For the reasons set out below, we reverse.

THE FACTS SUMMARIZED

On February 13, 1979, at approximately 3:00 p. m., four black men robbed the Pine Street branch of the Niagara County Savings Bank in Niagara Falls, New York. On May 22, 1980, Lawson and Allen Bell ² were charged in a three-count indictment with violating 18 U.S.C. § 2113(a) (1976) (bank robbery), § 2113(b) (bank larceny), and § 2113(d) (bank robbery with a dangerous weapon). In December, 1980, Bell pleaded guilty to violating 18 U.S.C. § 2113(b) and agreed to testify against Lawson.

The government's main case rested primarily upon the testimony of Gloria Rotella, a bank teller; Allen Bell; and Sharon Harris, a friend of Bell's.

Rotella was working as a teller at the bank at the time of the robbery. After having been ordered to get down on the floor, she testified that she looked up and saw the face of one of the robbers for a "split second." Later, she identified a photograph of Lawson out of an array provided by the F. B. I. She was unable to make a positive identification at either the show-up or at trial. Rotella reiterated at trial that she had selected the photograph because it looked like the man she had seen, and the photograph was admitted in evidence.

Bell testified that Lawson masterminded the robbery. He stated that Lawson recruited him and two others, gave instructions during the robbery and drove the getaway car. According to Bell, the stolen cash was divided up in the basement of Sharon Harris' house. On cross-examination, Bell stated that he had committed an earlier armed robbery with Lawson and that he, Bell, had been charged with the crime but Lawson had not. He admitted that he thought Lawson had made a deal in that case with state authorities to implicate Bell in exchange for his own freedom. ³

Sharon Harris testified that Bell, Lawson and two others went to the basement in her house after the robbery. She described Lawson as saying "It was an easy shot." On cross-examination, the Judge precluded defense counsel from inquiring into Harris' conviction for prostitution and whether her relationship with Bell was one of pimp-prostitute, on the grounds that "prostitution is not related to truth telling...."

Throughout the case, Lawson maintained his innocence. He testified that he did not participate in the robbery and spent most of that day with an Ann Robinson. Lawson also stated that Bell had admitted that he falsely implicated him in the Niagara robbery solely because of Bell's belief that Lawson had alerted the police to Bell's role in the earlier robbery. ⁴ On cross-examination, the government sought to impeach Lawson through statements he had made to F. B. I. Agent Corcoran while in custody. Lawson had suggested a "deal" to Corcoran in which he would plead guilty and testify against his three accomplices in exchange for a four-year sentence to run concurrently with a state sentence he was about to begin.

Ann Robinson testified that, on the day of the robbery, Lawson picked her up about noon and they returned to his house, where they remained until about 3:00 p. m. They then went to a bar called Hamps' Lounge and were together until early evening. The prosecution's cross-examination of Robinson, which brought out some inconsistencies as to the date of these events, was based at least in part on notes made by F. B. I. Agent Lunde as to statements Robinson had made to him.

The prosecution called Agent Corcoran in rebuttal. He testified that Lawson had told him while in custody that "he would make a deal if the Government could guarantee him a maximum of four years and thereby he would plead guilty and testify."

The jury convicted Lawson on all three counts. The District Court imposed concurrent sentences on the counts of bank robbery, bank larceny and armed bank robbery, of 12 years, 10 years and 12 years, respectively. It ordered that Lawson begin serving the federal sentence only after completing a state sentence he was then serving. This order was apparently based upon the District Court's belief that "under law ... (the Court) must make the sentence consecutive to the sentence (Lawson is) already serving."

The parties agree that multiple convictions under various sections of 18 U.S.C. § 2113 may not be based on an identical set of facts, since acts violative of § 2113(a) or (b), or both, are merged into the conviction under § 2113(d). Grimes v. United States, 607 F.2d 6 (2d Cir. 1979); United States v. Jenkins, 665 F.2d 47 (2d Cir. 1981). We remand with directions to vacate the convictions and sentences for bank robbery under 18 U.S.C. § 2113(a), and for bank larceny under 18 U.S.C. § 2113(b).

The sentence of 12 years for violation of 18 U.S.C. § 2113(d) remains, however, and Lawson asks us to reverse on a variety of grounds.

DISCUSSION

A. Lawson's Statements to Agent Corcoran

At the time Lawson made the statements described above to Agent Corcoran Fed.R.Evid. 410 and Fed.R.Crim.P. 11(e)(6) made inadmissible any statement made "in connection with" any offer to plead guilty or nolo contendere to a crime. ⁵ Both rules have been amended in the interim so as to apply only to statements made to prosecuting attorneys. ⁶ The government expressly waived at oral argument any claim that the new version is applicable either to Lawson's original trial or to a new trial.

Lawson claims that all testimony as to his statements to Agent Corcoran should have been excluded under Rules 410 and 11(e)(6). At a pre-trial hearing, the District Court expressed reservations about the admissibility of Lawson's statements. On November 18, 1980, the government wrote the District Court:

Please be advised that after further consideration, the Government does not intend to attempt to introduce at trial any statements made by Mr. Lawson to F. B. I. Agent James Corcoran. This is in view of the fact that it is our opinion that the introduction of the statements would be precluded under Rule 410 of the Federal Rules of Evidence.

Nevertheless, the government used these statements to impeach Lawson's testimony. Two grounds are asserted in support of this use of the statements. First, it is argued that the statements were not made in the course of plea negotiations. The letter of November 18 clearly waives any such claim, however. If the statements were not made in plea negotiations, then Rules 410 and 11(e)(6) would be wholly inapplicable and the statements could have been used in the government's main case. The government was familiar with all the circumstances surrounding Lawson's conversations with Corcoran and the letter of November 18 plainly treats them as within Rule 410. That letter thus waives any position to the contrary. We need not, therefore, determine the impact of our decisions in United States v. Levy, 578 F.2d 896 (2d Cir. 1978), United States v. Stirling, 571 F.2d 708 (2d Cir. 1978), and United States v. Arroyo-Angulo, 580 F.2d 1137 (2d Cir. 1978), which in any event involve very different facts.

The second ground offered to support use of Lawson's statements relies on the language of Rules 410 and 11(e)(6) that such statements are not admissible "against the person who made the plea or offer...." It is argued that "against the person" means use in the government's case-in-chief and not use for impeachment or rebuttal purposes. Whether the November 18, 1980 letter also waives this claim is a closer question. The letter does not qualify the denial of any intention to use the statements, and we hardly think that a pre-trial hearing was held solely to determine admissibility in the main case. Nevertheless, there is no indication that use for impeachment purposes was ever focused upon by the parties. Therefore, we reach the issue of admissibility.

In admitting the statements, the District Court relied upon United States v. Havens, 446 U.S. 620, 100 S.Ct. 1912, 64 L.Ed.2d 559 (1979). Havens held that pre-trial statements by a criminal defendant which would have been inadmissible as part of the prosecution's main case under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), might be used to impeach the defendant if he or she took the stand. We believe Havens is inapposite, however. A principal purpose of the exclusionary rule under Miranda is to deter police officers while Rules 410 and 11(e)(6) are designed to encourage plea bargaining. So far as deterrence in the former case is concerned, exclusion from the case-in-chief provides the needed deterrence. It is somewhat farfetched to believe that police conduct of an interrogation of a suspect will involve fine calculations as to whether the particular suspect will take the stand in a trial months or years in the future. Plea bargaining...