U.S. v. McKinney

• Decision Date: 15 April 1985
• Docket Number: No. 84-2038,84-2038
• Citation: 758 F.2d 1036
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Theodore Duane McKINNEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1036

758 F.2d 1036

UNITED STATES of America, Plaintiff-Appellee, v. Theodore Duane McKINNEY, Defendant-Appellant.

No. 84-2038.

United States Court of Appeals, Fifth Circuit.

April 15, 1985.

John E. Ackerman, Houston, Tex., for defendant-appellant.

Daniel K. Hedges, U.S. Atty., Ronald G. Woods, James R. Gough, George A. Kelt, Jr., Susan L. Yarbrough, Asst. U.S. Attys., Mervyn Hamburg, Appellate Section, Vincent L. Gambale, Crim. Div., Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before RANDALL, JOHNSON and GARWOOD, Circuit Judges.

RANDALL, Circuit Judge:

Theodore Duane McKinney was convicted by a jury of various offenses arising out of an abortive attempt to extort $15,000,000 from the Gulf Oil Corporation by threatening to detonate several bombs installed by McKinney's associates at the Cedar Bayou Chemical Plant. McKinney attacks (1) the admission of evidence obtained during allegedly illegal searches; (2) the admission of statements made by McKinney to FBI agents following his arrest; (3) the Government's repudiation of an agreement to refrain from offering evidence of an extrinsic offense allegedly committed by McKinney; (4) the Government's tardy disclosure of Brady material; and (5) the district court's midtrial refusal to review the Government's investigation file for additional undisclosed Brady material. Finding no reversible error in the proceedings in the district court, we affirm.

I. BACKGROUND

On September 28, 1982, officials of the Gulf Oil Corporation received a letter stating that more than ten explosive devices had been surreptitiously installed at the corporation's Cedar Bayou Chemical Plant. The letter further stated that another unnamed Gulf facility had been similarly sabotaged. The authors of the letter offered to sell to Gulf for $15,000,000 information regarding the location of the bombs and the means with which to safely disarm them. The letter stated that, if Gulf refused the offer, Cedar Bayou would be destroyed and the price for similar information about the second facility would rise to $30,000,000.

The letter stated that Gulf could accept the offer by placing an advertisement in the classified section of the Houston Post naming a person to whom further instructions could be communicated. The letter stated that this person should have a corporate jet at his disposal to deliver $15,000,000 to a point within 1,500 miles of Houston.

Gulf placed an advertisement in the Houston Post in which Bob Quintana, a member of the Gulf security staff, was appointed spokesperson for the corporation. On October 1, 1982, Quintana received three phone calls from one of the extortionists. Quintana was directed to fly to Phoenix, Arizona, with the money, to rent a car, and to drive from Phoenix to a bowling alley in Apache Junction, Arizona. The extortionist told Quintana that he would be contacted at a pay phone there at 4:00 p.m.

In the meantime, Gulf had been in contact with the FBI. While Quintana and FBI agents in Houston prepared for the trip to Phoenix, agents in Arizona focused their investigation around Apache Junction. Agents made arrangements with the phone company to "trap" phone calls made to either of the two pay phones located at the bowling alley. Quintana, who was by now equipped with transmitting and recording devices, did not arrive at the bowling alley until approximately 6:00 p.m. Between 4:00 p.m. and 5:40 p.m., the telephone company trapped nine unanswered phone calls to the bowling alley's two phones. These calls were all placed from pay phones along Apache Trail, a road not far from the bowling alley. The FBI sent agents to surveil the area around Apache Trail.

At 5:54 p.m., Quintana received a call at the bowling alley from one of the extortionists. The extortionist told Quintana to travel to a Chevron station located on Apache Trail. He received another call at the Chevron station at 6:27 p.m. During this call, he was directed to travel to a nearby department store where he would be contacted again at approximately 7:30 p.m. A telephone company trap revealed that the 6:27 call originated at a pay phone located at 150 Apache Trail. At approximately 6:35 p.m., agents observed two men sitting At 7:36 p.m., McKinney received Miranda warnings. At 7:46 p.m., he signed a form authorizing a consent search of the four-wheel drive truck in which he and Worth had been observed earlier. At 7:48 p.m., McKinney was again advised of his Miranda rights. Although he stated that he understood his rights, he refused to sign a "Waiver of Rights" form. Shortly after 8:00 p.m., McKinney was transported to the FBI office in Phoenix, where he was questioned until he asked to speak with an attorney at about 10:00 p.m. Agents searched the four-wheel drive vehicle at the FBI office and discovered several weapons and other incriminating evidence.

                in a four-wheel drive truck parked near the telephone booth at 150 Apache Trail.  The truck remained parked there for approximately ten minutes and then began a circuitous drive at slower-than-normal speeds through the surrounding area.  After driving past the pay phone to which Quintana had been directed by the 6:27 call and making two U-turns, but without making any stops, the truck returned to the pay phone at 150 Apache Trail.  After about ten minutes, the two men left the truck and walked to the pay phone.  One of them entered and placed a call.  The other stood outside of the phone booth "with his head up against it."    Quintana received a call at the department store immediately after one of the men under surveillance entered the phone booth at 150 Apache Trail.  Upon notification of this fact, agents converged on the telephone booth with their guns drawn and ordered the two men to drop to their knees.  An agent then picked up the telephone and verified that Quintana was on the other end of the call.  At 7:35 p.m., McKinney, who had been standing outside of the phone booth, and Michael Worth, who had been inside placing the call, were formally arrested
                

As their investigation continued, FBI agents learned that the extortion plot was conceived and planned in Durango, Colorado. On October 5, 1982, agents obtained a warrant to search the Ezra R, a Colorado mine owned by McKinney, for bomb paraphernalia and "other evidence of a plan to extort money from Gulf Oil Corporation." Various explosive devices were discovered at the Ezra R. McKinney was eventually indicted, along with Worth, John McBride and two others, for his role in the extortion plot. Following suppression hearings, McKinney obtained a severance of his case from that of his codefendants, all of whom eventually pleaded guilty. McKinney had moved to suppress evidence obtained during the consent search of his vehicle following his arrest and evidence obtained during the warranted search of the Ezra R. At trial, he objected to the admission of statements he made at the FBI office following his arrest. The district court denied the motions and overruled his objection.

During the suppression hearing, it became apparent that McKinney and his codefendants were under investigation by Colorado authorities for the theft of gold from a company known as Standard Metals. McKinney's counsel and an assistant United States attorney discussed this extraneous offense, both on and off the record, and reached an agreement either, as the Government recalls, that the Government would not introduce evidence of the Standard Metals theft in its case-in-chief or, as McKinney recalls, that the Government would not introduce evidence of the Standard Metals theft for any purpose during McKinney's trial. Late in its case-in-chief, the Government announced its intention to introduce evidence of the gold theft if McKinney or Worth testified during McKinney's case-in-chief in support of McKinney's defense that he originally became involved in the extortion scheme because of an honest belief that his codefendants were conducting a legitimate investigation and that, once he discovered the true nature of the scheme, his continued participation was coerced by threats against his wife. McKinney immediately moved in limine to prohibit the Government from introducing evidence, for any purpose whatsoever, of the gold theft. Although the district court denied the motion, along with McKinney's motion for a mistrial, McKinney was granted a three-day continuance to allow counsel time to investigate Before trial, McKinney and the Government engaged in extensive discovery. McKinney asked the Government to disclose all exculpatory evidence in its possession to which McKinney was entitled under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), including evidence "which tends ... to impeach or contradict the testimony of any witness whom the government will call at the trial of the cause." The district court ordered the Government to comply with McKinney's Brady request. On the eve of trial, the Government decided for the first time that John McBride would be called as a witness. During trial, McKinney filed a motion to prohibit McBride's testimony on the ground that the Government failed to disclose Brady material bearing on McBride's credibility. The district court denied the motion, but ordered the Government to again review its files and to disclose all Brady material in its possession relating to McBride. The Government disclosed some additional material and again represented that all Brady material had been disclosed. A few days later, however, after McBride left the witness stand, the Government disclosed still more material relating to McBride. McKinney moved for immediate dismissal of the indictment for prosecutorial misconduct or, in the alternative, that the district court itself review the Government's investigation file to ensure that all Brady material had finally been disclosed. The...