U.S. v. Quinn

Decision Date03 October 1997
Docket NumberNo. 95-4224,95-4224
Citation123 F.3d 1415
Parties47 Fed. R. Evid. Serv. 1320, 11 Fla. L. Weekly Fed. C 603 UNITED STATES of America, Plaintiff-Appellee, v. Coley QUINN, Defendant-Appellant.
CourtU.S. Court of Appeals — Eleventh Circuit

Richard B. Barkin, Boca Raton, FL, for Defendant-Appellant.

Kendall Coffey, U.S. Attorney, Anne M. Hayes, Lisa Rubio, Linda Collins Hertz, Miami, FL, for Plaintiff-Appellee.

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

Before BARKETT, Circuit Judge, KRAVITCH, Senior Circuit Judge, and HARRIS *, Senior District Judge.

HARRIS, Senior District Judge:

Appellant Coley Quinn was charged with conspiring to possess cocaine hydrochloride (powder cocaine) with the intent to distribute it, and that it was a further purpose of the conspiracy to manufacture and distribute cocaine base (crack cocaine), in violation of 21 U.S.C. § 846; possessing cocaine hydrochloride with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and with using and carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c) and 18 U.S.C. § 2. Two codefendants, John Ruff, Jr., II, and John Ruff, Jr., III, [sic] also were charged in all counts.

Quinn and his codefendants pled guilty. Quinn thereafter was permitted to withdraw his guilty plea, proceeded to trial, and was found guilty as charged.

Prior to sentencing, Quinn filed a motion challenging the constitutionality of the enhanced penalties for crack cocaine and asserting that he had been selectively prosecuted because of his race. The district judge consolidated the motion with respect to the crack cocaine penalties with a similar motion filed in another of his cases, United States v. Hickman, No. 93-14021-CR-KLR, and, after a joint hearing, denied the motion to deem the penalties unconstitutional and denied a request for discovery in connection with the selective prosecution claim.

The district court sentenced Quinn to concurrent 235-month terms of incarceration on Counts One and Two, a consecutive 60-month term of imprisonment on Count Three, and five years of supervised release.

I. Background

Coley Quinn and his two codefendants, John Ruff, Jr., II, and John Ruff, Jr., III, were arrested on April 14, 1993. A confidential informant had told Drug Enforcement Administration ("DEA") agents that he had information about a drug ring that was distributing crack cocaine. At the direction of the agents, the informant telephoned the younger Ruff to arrange the sale of two kilograms of cocaine to the group for $35,000. Quinn answered the phone and said that they wanted to do the deal immediately. Later in the day, the informant called the younger Ruff and agreed to meet with Quinn in a shopping center parking lot. Quinn arrived at the scene of the transaction, left his car, and walked a distance of approximately 50 to 60 feet to the informant's vehicle.

The informant taped their conversation. Quinn said that everything was ready and that he had seen the money, but that the Ruffs wanted to check the "shit" by "cook[ing] some." 1 Quinn and the informant arranged for the Ruffs to buy the cocaine conditionally and to "cook" some before giving final approval; Quinn described one of the Ruffs as "the greatest guy cooking wise." The informant told Quinn that each of them would receive $1,500 for arranging the deal, and Quinn again said that he wanted to close the deal promptly.

The Ruffs arrived thereafter, asked if "Coley" had explained the transaction, displayed the purchase money to the informant, and confirmed the procedure for the deal. The informant called Officer Patrick Flannery of the City of West Palm Beach Police Department, who was posing as the drug courier. Flannery arrived in a Toyota Camry; Quinn and the younger Ruff got into the car and exchanged the money for the cocaine. They were arrested. The police also arrested a juvenile who was sitting in Quinn's car and apprehended him with a loaded gun.

Quinn and the Ruffs were transported to a DEA office. Quinn was advised of his Miranda rights and gave a statement. According to the agents, Quinn said that he had introduced the informant to the Ruffs after learning that the informant had access to cocaine, that the elder Ruff, in Quinn's presence, had told the informant that he was in the business of making crack and needed high quality cocaine for that purpose, and that Quinn had seen the informant several times during the next year and they had discussed working together in the future, eventually leading to the transaction at issue here. Quinn also stated that he had brought the gun for "self-protection," that he had pulled off I-95 on the way to the drug deal to check the weapon, and that he had placed the gun between the two front seats of his car and had covered it with a towel. Quinn also offered to become an informant. He said that he had worked for the Federal Bureau of Investigation ("FBI") in the past and gave the name of FBI Special Agent Larry Doss to support this. Quinn also stated that he was not working for Doss at the time of the arrest and that he had gotten involved in the transaction for the money.

Quinn moved to suppress his post-arrest statement as involuntary, contending that it had been coerced by a false statement that he was facing 40 years in prison. The motion was denied. Prior to trial, pursuant to Federal Rule of Criminal Procedure 12.3, Quinn filed a notice of his intent to assert as a defense his belief that he was acting in accordance with public authority.

The case proceeded to trial, and the government called several law enforcement officers to testify about both the transaction and Quinn's confession. On the second day of trial, the government announced its intent to call a previously undisclosed witness, DEA Agent Robert Mangiamele, to testify about an alleged second post-arrest statement made by Quinn that he was involved in the instant transaction for profit and not as an informant. Quinn objected, and the trial judge restricted Mangiamele's testimony to rebuttal.

Quinn testified that he had met the informant through his employer and had introduced him to the Ruffs, who wished to do a drug deal. He began to feel that he was involved in the deal too deeply, called the FBI, and was referred to Agent Doss. The two met; Quinn provided some information on suspected drug figures, and asked for money. Doss told Quinn to keep him informed and to make sure his drug contacts were not connected with the DEA. Quinn contacted Doss again in December 1992, and Doss again told Quinn to keep him informed. Doss previously had told Quinn that he did not want to do any deals for less than five kilograms of cocaine, and Quinn allegedly said that doing so would require a number of preliminary transactions in order to gain the drug dealers' confidence. Doss told Quinn to contact him when he reached the five-kilogram level. Quinn further testified that he contacted Doss again in March 1993 to tell him about a one-kilogram deal involving the younger Ruff, but that he did not have the address for the house where Ruff had picked up the cocaine. Doss told Quinn that he could not get a search warrant without an address, and Quinn said that he would have to do another drug deal to get it. On April 12, 1993, the informant contacted Quinn about the instant deal; Quinn did not discuss the April transaction with Doss because they had already discussed Quinn's building up to a five-kilogram deal.

Quinn also testified that, at about the time he initiated his contact with Doss, he had told two other people that he was contacting the FBI and hoped to work for that agency. First, in a conversation at a Costco store, he spoke with his longtime acquaintance, John Flint of the Palm Beach Sheriff's Department, and told him that he planned to work for the FBI and asked for advice on how to approach Doss. Second, Quinn spoke with an HRS caseworker to seek assistance in paying his rent, and he mentioned that he hoped to work as an informant for the FBI. Quinn wanted to call Flint as a witness, but the government objected and the trial court did not allow Flint to testify. The HRS case worker did testify for the defense.

At the conclusion of the government's case, Quinn moved for a judgment of acquittal on the § 924(c) count on the ground that there was insufficient evidence that his gun was used to facilitate a drug trafficking crime. The trial judge denied the motion, stating: "They don't have to use the gun in the transaction. If it is available, could have been used, that's all that's required."

On rebuttal, Agent Doss testified that Quinn had never told him about the Ruffs or a one-kilogram deal in Miami, and that he had not encouraged Quinn to get involved in drug deals and then tell Doss about them later. DEA Special Agent Nicholas Kent and West Palm Beach Police Officer John Kelly testified that Quinn stated that he had participated in the drug deal for the money, and not as an FBI informant. DEA Special Agent Mangiamele testified that both Doss and Quinn had told him that Quinn had not been working for the FBI at the time of the arrest, and that Quinn had said that he had arranged the deal for the money.

II. Analysis
A. The Exclusion of John Flint's Testimony

Quinn contends that the district court incorrectly excluded Flint's proffered testimony. Flint, of the Palm Beach Sheriff's Department, was Quinn's long-time acquaintance and had had a discussion with Quinn in a Costco store. Quinn testified about this conversation. The government objected to Flint's testimony on the ground that it would be hearsay, and the court excluded it.

The parties disagree initially about the applicable standard of review. The government contends that a plain error standard applies because appellant did not preserve his objection by making an offer of proof to the district court, pursuant to ...

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