Certain of the relevant facts were not in dispute:
For some time prior to November 15, 1984, a federal grand jury was investigating defendant for bank larceny and the interstate transportation of a stolen check. Defendant and his attorney were aware of this investigation.
During August, 1984, Agent Kundts was at a branch of the Philadelphia National Bank in the course of this investigation. Agent Kundts had not arranged a meeting with the defendant but observed defendant enter the bank; he recognized the defendant from his picture. Agent Kundts asked defendant if he were willing to speak with him about this matter. Defendant responded that he had an attorney and refused to answer questions without his attorney's advice; he provided Agent Kundts with the name and telephone number of his attorney.
Shortly thereafter, defendant's attorney called Agent Kundts. Agent Kundts said he would notify defense counsel when an AUSA had been assigned to this investigation after being informed of the identity of the AUSA and prior to November 15, 1984, defense counsel requested that the AUSA meet with him and his client. The first time defendant and his attorney tried to see this AUSA she was otherwise occupied.
On November 15, 1984, defendant, his attorney, Agent Kundts, and the AUSA met in the United States Attorney's Office.
Defendant was not then under arrest, had not been indicted, and was not in custody. The AUSA but not Agent Kundts took notes for the Government during this meeting; Agent Kundts stated that generally only one Government representative took notes at such meetings so that "they [the two sets of notes] won't disagree." It is unknown whether defendant or defense counsel took any notes.
Both the Government and the defense agreed on most aspects of the November 15, 1984 meeting. They agreed that defendant was not in custody, spoke voluntarily, explained his version of the facts, and offered to cooperate with the Government in its investigation of another person allegedly involved in the scheme to transport stolen securities by wearing a concealed electronic device to record conversations and testifying. They also agreed that defendant was not told that any statements he made could be used against him nor was he tendered a proffer letter.
But they disagreed on other aspects of the meeting. Agent Kundts testified that without being asked, defendant began by explaining his version of events relevant to the investigation, expressed no interest in pleading to a misdemeanor charge and never requested immunity. Agent Kundts also testified that only after defendant completed his version of events did the Government explore his willingness to cooperate and to "wear a wire."
Defendant stated that he came to the meeting voluntarily to bargain for immunity and negotiate a plea but the conversation began with either the AUSA or Agent Kundts questioning him. Defendant also testified that he maintained his innocence throughout the meeting even though he was willing to plead guilty to a lesser offense. He testified that his purpose in giving information to the Government was to persuade the prosecutor to cease investigating him, grant him immunity, or indict him for a misdemeanor rather than a felony. It is unclear whether defendant testified this was his subjective intent on November 15, 1984 or if he maintained that he stated this intention at the November 15, 1984 meeting. Defendant conceded that the Government did not promise him immunity and that the possibility of charging him with a misdemeanor was not discussed.
The AUSA's notes from the meeting first recorded defendant's description of events and his stated willingness "to wear wire and testify." (G-1). The notes then record that defendant, his attorney, Agent Kundts and the AUSA "will meet Tuesday to discuss deal" and that defendant was promised nothing in return for his offer of cooperation as of that date (November 15, 1984).
The follow-up meeting was held as scheduled (presumably November 20, 1984); on November 29, 1984, the AUSA mailed defense counsel a proposed plea bargain. It contemplated that defendant would plead guilty to an information charging two counts of bank larceny in exchange for his agreement to tell all he knew about the matters under investigation, testify on those matters and submit to a polygraph examination if requested by the Government. This proposed agreement was neither formally rejected nor accepted by defendant.
Agent Kundts testified without contradiction that he did not file the usual FBI Form 302 investigatory report after the November 15, 1984 meeting. On April 2, 1985, the AUSA asked Agent Kundts to "memorialize" her notes of the meeting in a Form 302 report to be used by the Government in preparing for presentation of the case to a grand jury. Between April 2 and April 5, 1985, Agent Kundts and the AUSA met to review the AUSA's notes and refresh his recollection of the November 15, 1984 meeting. On April 5, 1985, Agent Kundts dictated his report of the meeting and these notes were transcribed on April 8, 1985. The grand jury's three-count indictment against defendant was returned on April 24, 1985.
The Form 302 Report (G-2) differed from the AUSA's notes in several aspects: 1) the AUSA's notes stated, "defendant gave the following statement, voluntarily --" and then summarized defendant's statement of events. Form 302 stated, "Washington began the interview by stating that he was providing the following information voluntarily" and then summarized defendant's description of events; 2) when discussing cooperation, the AUSA's notes said, "defendant says he [is] willing to wear wire and testify;" Agent Kundts' Report referred more generally to Washington's willingness "to assist the Government in this matter;" 3) the AUSA's notes stated that the meeting to be held the following Tuesday was "to discuss deal," while Agent Kundts' Report noted that the purpose of the meeting was "to discuss a possible plea agreement."
Federal Rule of Criminal Procedure 11(e)(6) provides that any statement made in connection with an offer to plead guilty is inadmissible against the accused in any civil or criminal proceeding:
(6) Inadmissibility of Pleas, Plea Discussions, and Related Statements.