U.S. v. McQuin

• Decision Date: 01 February 1980
• Docket Number: 79-1308,Nos. 79-1271,s. 79-1271
• Citation: 612 F.2d 1193
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kevin Darrell McQUIN, Eddie Jerome Johnson, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1193

612 F.2d 1193

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.

Feb. 1, 1980.

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 Taulbee.

Their first meeting was on December 11, 1978. Taulbee and Canale drove to McQuin's residence in an F.B.I. undercover car that was fitted with recording devices. McQuin joined them in the car and lost no time in getting down to business. A tape of the rather sordid conversation was introduced into evidence against McQuin and it discloses a well-developed plan by McQuin to rob a specific branch of the Crocker National Bank in Pasadena. McQuin discussed the weapons to be used, the method of gaining entry to the bank, and specifics of gaining control over the bank employees, the getaway plans, and the method by which the loot would be apportioned. Other unidentified persons were to take part and McQuin speculated on the men who should actually enter the bank and which ones would remain outside. The three men actually drove to the bank and studied its layout; they also drove around its parking lot and the parking lot of an adjoining restaurant both of which figured in the getaway plans. It was left that the robbery would take place on December 19, at 10:00 a. m. Taulbee was assigned the special job of obtaining getaway cars.

When Taulbee and Canale arrived at the McQuin residence on December 19, a woman appeared at the door and said that he was not at home, but was in jail. He was, in fact, inside. He later testified that he had decided not to go through with the robbery and thus did not want to talk to Canale and Taulbee. Whatever his reasons were for having the woman say that he was not there, he did talk to Canale later in the day. That conversation figures prominently in the appellants' claims of police misconduct.

In the conversation Canale told McQuin that Taulbee was angry and disappointed about the delay in the scheduled robbery, particularly as he had gone to the effort to obtain the getaway cars. (There may well have been some real disappointment given the number of F.B.I. agents on foot, in cars, and in a helicopter left waiting at the bank for a robbery that never occurred.) Just how Canale described Taulbee's anger is in dispute. McQuin testified that Canale told him Taulbee was a "heavy dude" and so angry he was going to have McQuin killed because he had not gone through with the robbery on the 19th as scheduled. Canale denied this and said he merely told McQuin Taulbee was so angry he "felt like" having McQuin killed. Taulbee, of course, was not present and could not testify as to what actually was said. He did, however, take part in the events of the following day. On December 20 he and Canale again went to McQuin's residence, where they were admitted by appellant Johnson. McQuin and some other men were sleeping in a room. Johnson wakened McQuin and the other men were told to leave the room. Taulbee, McQuin and Canale (with Johnson present) then discussed the robbery. Again the testimony is conflicting. McQuin testified that Taulbee entered the room with drawn gun and stood in front of him in a threatening manner and that he went along with the robbery only because he was so fearful. Agent Taulbee testified that he never drew his gun during the conversation. He stated that McQuin said to him that he had heard that Taulbee was angry and he, not knowing precisely what Canale had said to McQuin, responded noncommittally. His testimony was, "I just said, 'Well, you know,' shrugged it off. I didn't want to say anything . ....