United States v. Robert Quintana, 457 F.2d 874, 10th Cir. (1972)

457 F.
2d 874
UNITED STATES of America, Plaintiff-Appellee,

v.
Robert QUINTANA, Defendant-Appellant.
No. 71-1585.
United States Court of Appeals,

Tenth Circuit.
March 31, 1972.
Rehearing Denied May 16, 1972.
Richard J. Spelts, Asst. U. S. Atty. (James L. Treece, U. S. Atty., and

Milton C. Branch, Asst. U. S. Atty., on the brief), for plaintiff-appellee.
Jay L. Gueck, Denver, Colo., for defendant-appellant.
Before HILL, BARRETT and DOYLE, Circuit Judges.
WILLIAM E. DOYLE, Circuit Judge.
This appeal is from a jury verdict finding defendant-appellant Robert Quintana

guilty of using extortionate means to collect an extention of credit, in violation
of 18 U.S.C. Sec. 894. A judgment of acquittal was entered in behalf of
codefendant Edward Quintana for insufficiency of the evidence against him.1
The challenge on this appeal is to the sufficiency of the evidence supporting the
jury's verdict against Robert Quintana; secondly, the court's ruling admitting
tape recordings of telephone conversations between appellant and Wright, the
alleged victim of the extortion; thirdly, the court's refusal to grant to the
defendant-appellant discovery of Grand Jury minutes and testimony of
witnesses who appeared before the Grand Jury. We have reviewed the
contentions and we conclude that they are lacking in merit, whereby we affirm
the conviction.
The statute under which appellant was convicted prohibits knowing

participation in the use of extortionate means to attempt the collection of a
debt. 2 "Extortionate means" is defined as:
3*****
4* * *
.5. . [A]ny means which involves the use, or an express or implicit threat of use, of
violence or other criminal means to cause harm to the person, reputation, or property
of any person. 18 U.S.C. Sec. 891(7).
6
The evidence against appellant consisted primarily of the testimony of Ronald

Wright, a tape recording which contained eight telephone conversations
between Wright and appellant, and Wright's testimony regarding another
conversation between him and a person he thought was Edward Quintana. The
tape was played to the jury with certain portions deleted as a result of an order
by the court.
In the summer of 1970 Wright borrowed from Robert Quintana, in two loans,
the sum of $500.00. The rate of interest was $5.00 per $100.00 per week, or a
total of $25.00 per week. There was not any specified date or time period for
payment of the principal. Interest payments were the important part of the
transaction. The loans had been arranged by Wright's employer, Jimmy Clapes,
who was personally acquainted with Robert Quintana.
For the first month and a half, from July until mid-August, the interest
payments were deducted by the employer from Wright's car allowance and paid
directly to Robert Quintana. After Wright terminated this employment in midAugust, interest payments were made directly to Robert Quintana at the latter's
home until the first week in October of 1970. He testified to paying some "six
or seven hundred dollars." This amount did not, of course, include any
payments on the principal.
The interest payments were not always delivered on time or in the full amount,
and Wright testified to receiving telephone calls from Quintana reminding him
of the accumulated obligation. In at least one of these calls, Robert Quintana
advised Wright to become current because "I don't want to send somebody
around to collect it." The same message was repeated in early October just after
Wright ceased to make payments. Soon thereafter, Robert Quintana called
again to say that he would be out of town and that his brother Edward Quintana
would be in touch with him regarding the loans.
10
Following this last communication Wright called the office of the Denver
District Attorney (State) and reported what had happened. After conferring with
officers of the Organized Crime Unit, Wright agreed to have a tape recorder
attached to his telephone at home. There were transcriptions of two

conversations, October 31 and November 6, between Wright and Robert's
brother. The court rejected these, but at the same time allowed Wright to
testify, and he did so without objection. The reason for rejection of the
transcripts was the fact that the tapes had become erased, and the transcripts
were ruled out by the trial court on the ground that they were not the best
evidence. At the same time, the court allowed Wright to testify as to the
conversation had on November 6. Previously, on October 31, a person thought
to be Edward Quintana had called up and said "This is Robert's brother" and
had told him to drop some money off at Robert's house. The same voice was
identified by Wright as the one who called on November 6. Wright testified that
on this latter occasion the caller made a threat of violence.3
11
From November 21, 1970, to January 11, 1971 Robert Quintana made eight
phone calls which were admitted into evidence and played to the jury.
Quotations from one of these conversations is shown so as to indicate their
substance and tone.4
*****
12
***
13
*****
14
***
15
*****
16
*17* *The reference to "these guys" and the undertone as to what they might do
pervades the entire transcript of the telephone calls.5 There was, in addition,
testimony relating to a December 12 meeting at Azar's Restaurant between Wright
and Robert Quintana. Wright said that he asked appellant "what would happen if I
didn't pay." Quintana was said to have responded that "We would work you over
and every time we saw you we would work you over." Wright was wearing a body
microphone, and this conversation was transmitted to investigators stationed outside
the restaurant, but a recording made of it was not introduced into evidence,
apparently due to the fact that large portions had been garbled and were indistinct.
I.
18
In challenging the sufficiency of the evidence to support the verdict, appellant

argues that he did not threaten physical violence; that on the contrary he sought
to convince Wright by friendly persuasion to make his payments so as to protect
him from violence at the hands of others. He, in effect then, says that the means
he used to collect the debt were legitimate and that he was not therefore guilty
of using any extortionate means. The evidence heretofore summarized does
show, with one exception (the conversation at Azar's which was not recorded,
but which was related by Wright), persuasion of a sort. However, the
persuasion is transparent and the threat of dire violent consequences flowing
from Wright's failure to pay is present, and, as noted, toward the end there was
no effort to veil the threat. Moreover, there were the threats of Robert's brother,
who was commissioned by defendant to enforce the payments for an interim
period, and this particular incident left nothing to the imagination. The general
nature of the total transaction was such as to render this threat a clear incident
of the general operation and, thus, to be within the scope of the authority
granted. Hence the defendant was accountable for this statement of his agent.6
19
In summary then the total record fully supports the allegation that extortionate
means were used in an attempt to collect an extension of credit. We are
mindful, of course, that the background circumstances, namely the extremely
high interest rate, plus the never ending payments, support fully this
conclusion.
II.
20
Appellant urges us to find that the tape recordings were made in violation of
the Fourth Amendment and thus were inadmissible. The issue, of course, is
whether a telephone tap constitutes an unreasonable search and seizure and thus
violates the Fourth Amendment when one party consents but the other party
has no knowledge of the phone tap and thus believes that the conversation is
private.
21
In Holt v. United States, 404 F.2d 914, 919 (10th Cir. 1968) this court
interpreted the Supreme Court's decision in Katz v. United States, 389 U.S.
347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1968), as not applying when an informant
has consented to the eavesdropping. United States v. White, 401 U.S. 745, 91
S.Ct. 1122, 28 L.Ed.2d 453 (1971) supports this evaluation of Katz. Also, the
more recent rulings by other circuits reflect the same viewpoint. See, e. g.,
United States v. Puchi, 441 F.2d 697 (9th Cir. 1971); United States v. Skillman,
442 F.2d 542 (8th Cir. 1971); United States v. Caracci, 446 F.2d 173 (5th Cir.
1971). And it makes no difference which party initiated the call. See United
States v. Puchi, supra. We do not distinguish between calls initiated by
Quintana and those commenced by Wright. The decisions in White and Holt do
not call for this. The significant factor is that of the consenting party; hence a
search warrant was not necessary. The tape recordings were admissible, as well
as the agents' recollections of the conversations they overheard.

III.
22
The trial court denied a motion for pretrial discovery of the Grand Jury
proceedings, including the minutes and the testimony of government witnesses.
Appellant had no right to view these materials before trial, 18 U.S.C. Sec. 3500
(1970), and, indeed, the transcript of Wright's testimony before the Grand Jury
was furnished to appellant's counsel at the noon recess before the completion of
direct examination. The tape recordings of the phone calls were made available
to appellant's counsel before trial. Finally, the material sought to be discovered
with regard to the Grand Jury proceedings was not testimony of the defendant
which is discoverable under Federal Rule of Criminal Procedure 16. Prior to the
1970 amendment to 18 U.S.C. Sec. 3500, the decision whether to disclose
Grand Jury testimony was committed to the sound discretion of the trial court
on the showing of a particularized need. Dennis v. United States, 384 U.S. 855,
86 S.Ct. 1840, 16 L.Ed.2d 973 (1965); Pittsburgh Plate Glass Co. v. United
States, 360 U.S. 395, 79 S.Ct. 1237, 3 L.Ed.2d 1323 (1959); United States v.
Fuentes, 432 F.2d 405, 408 (5th Cir. 1970). No abuse is apparent here even
applying this standard.
23
The judgment is affirmed.
This judgment resulted from inability of the witness to identify his voice on the
phone
18 U.S.C. Sec. 894 provides in pertinent part:

(a) Whoever knowingly participates in any way, or conspires to do so, in the
use of any extortionate means
(1) to collect or attempt to collect any extension of credit, or
(2) to punish any person for the nonrepayment thereof,
shall be fined not more than $10,000 or imprisoned not more than 20 years, or
both.
According to Wright this conversation was direct and to the point:

"THE WITNESS: He said, 'What do I have to do, come by your house over on
33d or 32d or wherever it is and beat your fucking head in?' I believe that's what
he said, to my knowledge."
4
"Q. Well, Ron, I'm gonna have to have some-uh-or else they told me to go up
there and talk to ya and try to get somethin', and try to get that money in. They
just can't stand it no more, Ron. Two months, I mean, you didn't even try to
make ten dollars, fifteen dollars, anything, you know.
W. Well, I just don't have it. You know, I paid back an awful lot, Robert."
Look, Ron, I don't even give a damn if you even pay the vigorish (interest). Just
get the money in here cause that's what I want, that's what they're mad about.
W. Who's made atcha?
Q. The guys I got it from-Mertz and them-they ain't gonna stand for that shituh-Ron.
W. I don't even know those guys.
Q. (Inaudible) well, I'll tell you why-you don't wanna know Mertz. And then if
Mike gets on ya, that's another one.
W. Oh, that's your brother.
Q. Yeath. So is Mertz my brother, you know that."
"Q. Well, Ron, I, I, I just can't just keep tellin' those guys this. Now one of them
I know is gonna want to go up there tonight.
W. Well, if he comes up I don't know what good it's gonna do him.
Q. Well, Ron, you better think twice, I'm tellin' ya. I mean I'm just tellin' ya for
your own good. You know you can't screw these guys around like that, you
know that. They didn't ask you to take their money, you called and took their
money. And when you do that, Ron, you're responsible to pay it back. You
knew what you was in for.
W. What do you-what do you suggest I do?
Q. Well, Ron, at least give 'em somethin' so you can keep 'em quiet, don't you
understand what I'm tryin' to tell ya?"
Telephone call between Ronald Wright and Robert Quintana of December 12,
1970 (emphasis added).
For example, the following excerpt from the January 11, 1971 conversation
where Quintana invokes the name of Jimmy Clapes, Wright's former employer:
"Q Well-Ron, now look, I told you now long time, it's over a month and a half
ago-I said you've gotta make some kind of arrangement, I don't care what it is,
you gotta make it. And now you just ignore it, Ron. Then there's nothin' else I
can do, I can't keep these guys on my back. So I-there's only one alternative,
and that's to go after Jimmy. Now, if that don't work there's gonna hafta be
somethin' done."
See 22 C.J.S. Criminal Law Sec. 84 at 246, Commission of Crime by Agent,

wherein it is said at pages 247-248:
A principal may, however, be liable for the criminal act of his agent under
certain circumstances, as where the principal, with the requisite criminal intent,
actually procures, hires, incites, encourages, authorizes, or directs another to
commit such criminal act or consents to the commission of the act by an agent .
...
See also United States v. Food and Grocery Bureau of So. Cal., 43 F.Supp. 966,
971 (U.S.D.C., S-D-Cal.1942). Cf. Empire Printing Company v. Roden, 247
F.2d 8, 17, 17 Alaska 209 (9th Cir. 1957). See also IV Wigmore on Evidence
Sec. 1078 at 126.

United States v. Robert Quintana, 457 F.2d 874, 10th Cir. (1972)

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457 F.

UNITED STATES of America, Plaintiff-Appellee,

United States Court of Appeals,

Richard J. Spelts, Asst. U. S. Atty. (James L. Treece, U. S. Atty., and

This appeal is from a jury verdict finding defendant-appellant Robert Quintana

The statute under which appellant was convicted prohibits knowing

The evidence against appellant consisted primarily of the testimony of Ronald

attached to his telephone at home. There were transcriptions of two

In challenging the sufficiency of the evidence to support the verdict, appellant

as the agents' recollections of the conversations they overheard.

The judgment is affirmed.

18 U.S.C. Sec. 894 provides in pertinent part:

According to Wright this conversation was direct and to the point:

See 22 C.J.S. Criminal Law Sec. 84 at 246, Commission of Crime by Agent,

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