U.S. v. Quinn

• Decision Date: 03 November 1976
• Docket Number: No. 76-1113,76-1113
• Citation: 543 F.2d 640
• Parties: UNITED STATES of America, Appellee, v. Donald J. QUINN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 640

543 F.2d 640

UNITED STATES of America, Appellee, v. Donald J. QUINN, Appellant.

No. 76-1113.

United States Court of Appeals,

Eighth Circuit.

Submitted June 15, 1976.

Decided Nov. 3, 1976.

Warren S. Zweiback, Omaha, Neb., for appellant; Roy G. Breeling, Omaha, Neb., on brief.

William E. Zleit, Special Atty., U. S. Dept. of Justice, Kansas City, Mo., for appellee; Daniel E. Wherry, U. S. Atty., Omaha, Neb., and Gary Cornwell, Special Atty., Kansas City, Mo., on brief.

Before VAN OOSTERHOUT, Senior Circuit Judge, HENLEY, Circuit Judge, and DEVITT, Chief District Judge. ^*

HENLEY, Circuit Judge.

Donald J. Quinn, defendant-appellant, was found guilty by a jury in the United States District Court for the District of Nebraska ¹ of the offense of jury tampering in violation of 18 U.S.C. § 1503. ² Quinn's motion for a new trial was denied, and he was sentenced to imprisonment for a term of two years. He appeals.

The indictment charged that between September 3 and September 19, 1974, the defendant, together with Paul F. Murphy, Dale Murphy and Clarence J. Matya, willfully and corruptly endeavored to obstruct and impede the administration of justice in the case of United States of America v. Clarence J. Matya, et al., D.C.Neb., No. CR-73-0-110, by endeavoring to influence a petit juror in the discharge of the duties of the juror in said case by attempting through Frank J. Ryan to contact and offer such juror up to $1,000.00 or more for each defendant whom the juror would vote to acquit of the charges in said case. ³

Jury trial began on December 1, 1975. At the conclusion of the government's case the district court entered judgments of acquittal with respect to the Murphys and Matya. Quinn's motion for a similar judgment was denied. The trial continued as to him and ended on December 23. The materials before us consist of a substantial designated record, 1914 pages of trial transcript, not including closing arguments of counsel, and a number of tape recordings that were played before the jury.

For reversal Quinn contends that he was the victim of entrapment in fact and that on account of alleged outrageous governmental misconduct he was entrapped as a matter of law; that the district court improperly restricted his inquiries into prior relationships between the Federal Bureau of Investigation and one Robert L. Probst; that the district court erred in admitting in evidence the tape recordings above mentioned; that the district court erred in admitting extrajudicial statements of codefendants; that the district court erred in overruling his motion for a mistrial when Frank J. Ryan, mentioned in the indictment, was called to the witness stand and invoked his privilege against self-incrimination in the presence of the jury; and that the district court erred in giving certain instructions to the jury and in refusing to give certain instructions requested by the defendant.

At the risk of some oversimplification, we will state the case as concisely as possible and we will state it in the light most favorable to the government. ⁴

During the time with which we are concerned, the defendant resided in Omaha, Nebraska where he operated a bar known as the VIP Lounge. In 1973 Quinn, the Murphys, Matya and others were indicted on charges of having operated a large bookmaking establishment in Omaha in violation of state and federal laws. The defendants in that case went to trial on September 3, 1974, and on September 28 Matya, Quinn and the Murphys were found guilty. They were sentenced to imprisonment.

Mrs. Margaret Probst of Omaha was selected as a member of the Matya jury. She had formerly been married to Robert T. Probst, an Omaha bookmaker, and they had one son, Robert L. Probst, who figures in this case. Robert T. Probst and Mrs. Probst had been divorced for a number of years, and he had died prior to the Matya trial.

Robert T. Probst and Robert L. Probst were well acquainted with Paul and Dale Murphy. Frank J. Ryan, at times described as an "unindicted coconspirator," was also acquainted with Robert T. and Robert L. Probst and with the Murphys.

When the defendants realized that Mrs. Probst was a member of the Matya jury, the defendants in that case with whom we are concerned formed a rather loose plan to approach Mrs. Probst through her son, Robert L. Probst, hereinafter simply Probst, for the purpose of influencing her vote as a juror. The scheme envisioned the possibility of a substantial payment of money to Mrs. Probst. The plan contemplated that Ryan would contact Probst and would serve as an intermediary between him and the defendants, and that Probst would deal directly with his mother.

Let it be said before going further that the parties stipulated that Mrs. Probst was never in fact approached by anyone in an effort to influence her vote.

Paul Murphy contacted Ryan with the suggestion that if he saw Mrs. Probst, he might "put in a good word for the Murphys." Later, after Ryan had talked with Paul Murphy and with the defendant, Quinn, Ryan made two long distance telephone calls to Probst at the latter's home in Ogallala, Nebraska. In his first conversation with Probst on September 8 Ryan was indefinite in his statements. He was not indefinite in the course of his second call which was made on September 10; in the course of that call he openly suggested that Mrs. Probst be bribed, and requested Probst to come to Omaha to discuss the matter. Quinn had agree to pay the expenses of the trip.

At this point, the whole scheme aborted although Ryan and the Matya defendants did not know it. After agreeing to phone Ryan during the evening of September 10, Probst made a long distance call to Special Agent Edward D. O'Brien of the FBI who was stationed at Omaha. Probst told O'Brien about the calls he had received from Ryan.

The record reflects that Probst had been acquainted with O'Brien for a number of years and had had dealings with him, some of which were of an official nature. Probst was also acquainted with Special Agent Dan Kelly of the Omaha office of the Bureau.

O'Brien caused certain Bureau agents to call on Probst in Ogallala. Probst agreed that he would cooperate with the Bureau in investigating the plan to bribe Mrs. Probst. In the presence of the agents he made a call to Ryan, as Ryan had asked him to do. That conversation which related to the bribery was recorded with the consent of Probst. It is inferable that the agents instructed Probst as to certain things to say and as to certain questions to ask.

On September 12 Probst went to Omaha and held a conference with O'Brien and other agents. He agreed to cooperate further with the Bureau, and he consented both orally and in writing to the recording of telephone conversations that he might make on the instructions of the Bureau and to be equipped with and use a body recorder whereby his face to face conversations with other persons could be simultaneously recorded and broadcast so that they could be monitored by the agents as they were occurring.

On September 13, 14 and 15 Probst had a series of recorded conversations with Ryan in the course of which they discussed what Ryan thought was a genuine ongoing plan to bribe Mrs. Probst. The plan which evolved was that Probst and Ryan would undertake to obtain $1,000.00 from each of the "minor" defendants in the Matya case, including the Murphys and Quinn. Larger sums were to be extracted from the "major" defendants in that case, including Matya himself. Probst was supposed to pay the bribe directly to his mother. It is interesting to speculate how much of the money to be obtained from the defendants Ryan expected to get for himself and how much of the money he thought that Probst really intended to pay to his mother.

We do not question the validity of Quinn's contention that during these conversations Probst was taking a line dictated by O'Brien and possibly by other agents of the Bureau.

On September 13 Ryan had a conversation with the Murphys in the course of which they manifested little enthusiasm for the deal, although they did not take themselves absolutely out of it. A later conversation with Paul Murphy at his home was perhaps more encouraging.

On the same day Ryan talked with Quinn briefly on three occasions, once in the lobby of the Federal Building in Omaha where the Matya trial was going on, once in a restaurant where Quinn was having lunch, and again at the VIP Lounge in the evening. Ryan seemed to have been particularly interested at that moment in collecting the expense money that had been promised to Probst; the amount was set at $400.00. Quinn was busy and declined to talk to Ryan at any length. However, he indicated that he would make the payment the following day.

On September 14 Probst, Quinn and Ryan had a conversation at a point near Quinn's place of business. Probst falsely told Quinn that Probst had been in touch with his mother, and that she had agreed to go along with the arrangement. In the course of that conversation Quinn paid Probst $400.00, and Probst gave Ryan $100.00 of it.

On September 15 Probst and Ryan had another conversation, after which Probst dropped out of the picture. By that time the Bureau had evidently decided that Ryan was involved to the extent that he could be taken into custody, confronted with his complicity in the scheme, and induced to cooperate with the Bureau in the further development of the case against the Matya defendants.

During the early afternoon of September 15 Ryan was arrested in fact, if not in form, by Special Agent Kelly. He was patted down for weapons, advised of his Miranda rights, and taken to the FBI office for an interview of several hours which was conducted by Special Agents O'Brien and Kelly. ⁵

Prior to the beginning of the interview proper Ryan was again advised of his rights. The interviewing agents then told him that they were aware of the plan to tamper with Mrs. Probst, and that they knew that Ryan was deeply...