612 F.2d 1193 (9th Cir. 1980), 79-1271, United States v. McQuin

Docket Nº:79-1271, 79-1308.
Citation:612 F.2d 1193
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Kevin Darrell McQUIN, Eddie Jerome Johnson, Defendants-Appellants.
Case Date:February 01, 1980
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1193

612 F.2d 1193 (9th Cir. 1980)

UNITED STATES of America, Plaintiff-Appellee,

v.

Kevin Darrell McQUIN, Eddie Jerome Johnson, Defendants-Appellants.

Nos. 79-1271, 79-1308.

United States Court of Appeals, Ninth Circuit

February 1, 1980

Page 1194

Donald B. Marks, Beverly Hills, Cal., Rudolph A. Diaz, Los Angeles, Cal., for defendants-appellants.

Daniel J. Gonzalez, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before CHAMBERS, ANDERSON and SCHROEDER, Circuit Judges.

PER CURIAM:

Appellants were convicted, after jury trial, of conspiracy to rob a bank (18 U.S.C. § 371) and attempted bank robbery (18 U.S.C. § 2113(a)), and sentenced under the Youth Corrections Act. The evidence as to both counts was overwhelming, but they claim that there was outrageous government misconduct which precluded their prosecution and now compels reversal of their convictions.

Appellants, complete with masks and guns, were arrested as they approached a branch of the Crocker National Bank in Pasadena. It is admitted that they were on their way to rob the bank, pursuant to plans developed by appellant McQuin. The arrests were the result of activity by an F.B.I. informant (a man named Canale) and an undercover agent (Special Agent Taulbee). It was McQuin's testimony at the trial that, although he had participated in the plans for the bank robbery, he had had second thoughts about proceeding with the actual robbery and did so only because of his fear of Taulbee, due to threats purportedly repeated to him by Canale.

The jury obviously chose to reject McQuin's story. But as government misconduct has been put into issue, we shall discuss the evidence as it was presented, despite the jury's resolution of the contradictions in the government's favor. We do this largely to put the claim of outrageous government misconduct in the proper perspective.

Canale had reported to the F.B.I. that appellant McQuin was discussing committing a bank robbery and was seeking an associate who would be armed. Arrangements were made to have Canale introduce Special Agent Taulbee to McQuin. It was necessary that his undercover identity appear authentic and Canale described Taulbee (who was using an assumed name) as a former crime associate, with Mafia connections, and who had collaborated with Canale in several burglaries. McQuin accepted him into the venture immediately. Taulbee testified that McQuin told him on their first meeting that he (McQuin) had ambitions to be a hit man for the Mafia, and volunteered to kill someone as a sort of audition. McQuin denied this but he was obviously impressed with...

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