United States Court of Appeals,
Eleventh Circuit.
No. 94-2981.
UNITED STATES of America, Plaintiff-Appellee,
v.
Ronald Gene BARBOUR, Defendant-Appellant.
Dec. 12, 1995.
Appeal from the United States District Court for the Middle
District of Florida. (No. 94-21-CR-ORL-22), Conway, Anne A.,
District Judge.
Before KRAVITCH, Circuit Judge, HILL, Senior Circuit Judge, and
ALAIMO*, Senior District Judge.
KRAVITCH, Circuit Judge:
Ronald Gene Barbour appeals his conviction and sentence for
threatening the President of the United States, in violation of 18
U.S.C. § 871. He contends that the district court erred in denying
his motion to suppress evidence he alleges was taken in violation
of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
(1966). Barbour also argues that at sentencing the district court
improperly used evidence of action taken prior to his threat to
kill the President, in order to support a six-level enhancement on
the ground that he demonstrated an intent to carry out this threat,
pursuant to U.S.S.G. § 2A6.1(b)(1). We affirm defendant's
conviction and sentence.
I.
On January 11, 1994, suffering from severe depression, Barbour
attempted suicide at his apartment in Florida. Before his attempt,
*
Honorable Anthony A. Alaimo, Senior U.S. District Judge for
the Southern District of Georgia, sitting by designation.
he had written a suicide note. After the attempt failed, he put
his gun and clothes in his car and drove toward West Virginia,
where he again intended to commit suicide. Barbour missed his
exit, however, and decided instead to drive to Washington, D.C. to
assassinate President Clinton. That same night, Barbour checked
into the Mt. Vee Motel in Alexandria, Virginia, where he stayed for
seven nights.
According to statements subsequently made by Barbour to Secret
Service agents, Barbour went to the Mall in Washington each day of
his trip, intending to shoot the President while the President was
jogging. Barbour also told the agents that he walked around the
White House several times and that he transported one hundred
rounds of ammunition to Washington. It had been Barbour's
intention to kill the President and to get himself killed in the
process. While in Washington, however, Barbour discovered that the
President was in Russia. On January 18, 1994, Barbour headed back
to Florida, and a few days later he sold his gun.
On January 29, 1994, Barbour invited a neighbor into his
apartment. Barbour told him about his journey to Washington. His
neighbor returned with his fiancee and a tape recorder. Barbour's
brother also was present. Barbour told these witnesses, as
recorded on tape, of his desire to kill the President. Over the
next few days, Barbour related the events of his trip to several
other people. At the urging of some of his neighbors, Barbour went
to the Veteran's Administration hospital (V.A.) on February 3, 1994
for psychiatric treatment.
On February 1, 1994, Secret Service agents began an
investigation based on information that someone had attempted to
assassinate the President. In the course of their investigation,
which eventually led them to Barbour, the agents saw Barbour's
suicide note and learned that he had attempted suicide. On
February 3, 1994, the agents were told that Barbour was going to
the V.A. to seek treatment for a mental problem. With this
information, the agents traveled to the V.A. While Secret Service
Special Agents John F. McKenna and Eugene L. Sveum met with Daniel
Doherty, head of the administration at the V.A. Clinic, Barbour was
in the lobby awaiting treatment.
Doherty agreed to assist the agents in finding Barbour. After
locating Barbour in the lobby, Doherty brought him to his office
where he was immediately joined by the special agents. According
to Barbour, McKenna and Sveum were identified as agents, and both
"quickly flashed their badge." The agents advised Barbour that
they wanted to talk to him about the information they had received
that he had traveled to Washington to attempt to assassinate
President Clinton. They also told him that they would help him
receive mental health treatment. Agent McKenna testified that he
took Barbour's personal history and in the process learned that
Barbour had once been committed to the Walter Reed Army Medical
Center after attempting suicide. After taking Barbour's history,
McKenna read him the Miranda warnings. Barbour told McKenna that
he understood his rights and indicated that he wished to talk to
the agents. At the time, Barbour indicated that he was aware that
it is a crime to attempt to kill the President. At the suppression
hearing, Barbour denied that Miranda warnings were ever recited,
but testified that, had they been read, he would have understood
them.1 The agents described Barbour as well-mannered, courteous
and cooperative throughout the entire interview. Barbour described
the Secret Service agents as extremely polite, courteous and
friendly, reminding him of "workers at Disney World."
Immediately after his interview with the agents, Barbour met
with Dr. DeCastro, who found him to be suicidal and in need of
immediate treatment. Pursuant to Florida law, Fla.Stat.Ann. §
394.463, Dr. DeCastro committed Barbour involuntarily to a private
mental health facility, Lakeside Alternatives.
Agent McKenna testified that on the next day, February 4,
1994, he visited Barbour at Lakeside Alternatives, presented him
with a Secret Service form entitled "Consent to Search," and
informed him of his constitutional right to refuse to give consent.
Barbour was cooperative and appeared to Agent McKenna to be logical
in his thinking. The consent to search form, which was read to
Barbour, authorized the agents to search his apartment and car and
to seize any contraband or evidence "in the nature of a threat
against the president." The form also indicated that no promises
were being made in exchange for Barbour's consent. Barbour signed
the form.
Agent McKenna returned to Lakeside Alternatives on February 7,
1994. He told Barbour that he wanted to ask him questions about
his trip to Washington, D.C., and, again, he read Barbour the
1
Barbour served as a military police officer. Additionally,
he received a liberal arts degree from Rollins College and took
correspondence courses in criminal justice. He testified that he
had read the Miranda opinion for one of these courses.
Miranda warnings. Barbour denied that he was given the Miranda
warnings. At this time, Barbour was taking Ativan and Lithium for
his depression.2 Once again Barbour was cooperative, coherent, and
polite, and answered all questions asked.
The district court found that Barbour was read his Miranda
warnings on February 3 and 7, 1994, and that he understood his
rights. The court further found that Barbour was read the consent
to search form on February 4, 1994, and that he understood his
rights on that occasion as well. Finding no evidence that
Barbour's severe depression interfered with his ability to think
clearly or understand the charges being made against him, and that
on the facts of this case the promise of mental health treatment
was not coercive, the district court found that his statements were
not coerced and that the government had met its burden of proving
by a preponderance of the evidence that Barbour voluntarily waived
his rights. See Colorado v. Connelly, 479 U.S. 157, 168-69, 107
S.Ct. 515, 522-23, 93 L.Ed.2d 473 (1986).
II. Motion to Suppress
The denial of a motion to suppress presents a mixed question
of law and fact. In determining whether Barbour's consent to
search was voluntary, we defer to the district court's findings of
fact unless clearly erroneous. See United States v. Blackman, 66
F.3d 1572, 1577 (11th Cir.1995). However, we review the district
court's application of the law to the facts de novo. Id. "The
district court's ultimate conclusion on the voluntariness of a
2
The district court found that at the time of the February 3
and 4 meetings, Barbour was not taking the medications
subsequently prescribed for his depression.
confession, or the waiver of Miranda rights, raises questions of
law to be reviewed de novo. " Id. (citing Beckwith v. United
States, 425 U.S. 341, 347-48, 96 S.Ct. 1612, 1616-17, 48 L.Ed.2d 1
(1976); United States v. Parr, 716 F.2d 796, 817-18 (11th
Cir.1983)); see Coleman v. Singletary, 30 F.3d 1420, 1426 (11th
Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1801, 131 L.Ed.2d
727 (1995). We base our determination on the "totality of the
circumstances," Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560, 61
L.Ed.2d 197 (1979), construing the facts in the light most
favorable to the party prevailing below. United States v. Cure,
996 F.2d 1136, 1138 (11th Cir.1993), cert. denied, --- U.S. ----,
114 S.Ct. 1075, 127 L.Ed.2d 393 (1994).
Barbour alleges that he was never informed of his Miranda
rights. He also contends that even if he were informed of these
rights, he did not waive them "voluntarily, knowingly, and
intelligently." Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. He
claims that given his severe mental depression and medicated state,
Agent McKenna's promise to provide help in obtaining mental health
treatment was coercive.
The threshold inquiry is whether Barbour was informed of his
Miranda rights. See New York v. Quarles, 467 U.S. 649, 654, 104
S.Ct. 2626, 2630, 81 L.Ed.2d 550 (1984); Miranda, 384 U.S. at 468-
70, 86 S.Ct. at 1624-26. The district court found that Barbour was
read his Miranda warnings on February 3 and 7. Barbour himself
admitted that he signed the "Consent to Search" form on February 4.
Because we conclude that the district court's determination is not
clearly erroneous, this threshold inquiry is satisfied. Thus, we
turn to Barbour's claim that his Miranda rights were not waived
"voluntarily, knowingly, and intelligently."
In Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d
410 (1986), the Supreme Court explained the two-part inquiry into
whether a defendant's waiver of Miranda rights was voluntary,
knowing, and intelligent.
First, the relinquishment of the right must have been
voluntary in the sense that it was the product of a free and
deliberate choice rather than intimidation, coercion, or
deception. Second, the waiver must have been made with a full
awareness of both the nature of the right being abandoned and
the consequences of the decision to abandon it. Only if the
"totality of the circumstances surrounding the interrogation"
reveal both an uncoerced choice and the requisite level of
comprehension may a court properly conclude that the Miranda
rights have been waived.
Id. at 421, 106 S.Ct. at 1141 (quoting Fare, 442 U.S. 707, 99 S.Ct.
2560, 61 L.Ed.2d 197) (citations omitted).
We begin with the first prong, whether the waiver was made
voluntarily. The fact that a defendant suffers a mental disability
does not, by itself, render a waiver involuntary; there must be
coercion by an official actor. See Colorado v. Connelly, 479 U.S.
at 169-70, 107 S.Ct. at 522-23; Coleman v. Singletary, 30 F.3d at
1426; Purvis v. Dugger, 932 F.2d 1413, 1422-23 (11th Cir.1991),
cert. denied, 503 U.S. 940, 112 S.Ct. 1485, 117 L.Ed.2d 627 (1992).
Thus, the fact that Barbour was suffering severe depression does
not render his statements involuntary unless the agents took
advantage of his mental illness. In this case, the agents did no
more than offer to help Barbour obtain medical assistance, which he
in fact received. The district court found that the agents'
promise to help Barbour receive mental health treatment was not an
assurance that the entire matter would not be treated as a criminal
issue. This conclusion is supported by the testimony of Agent
McKenna, Barbour's own statement that he was aware that the agents
were investigating a charge that he had attempted to kill the
President, and his knowledge that this attempt was a crime.
Finally, Barbour described the agents as extremely polite and very
courteous. Absent any evidence of psychological or physical
coercion on the part of the agents, there is no basis for declaring
Barbour's statements and consent to search involuntary.
We turn now to the second prong of the waiver analysis,
namely, whether the waiver was made with "a full awareness of both
the nature of the right being abandoned and the consequences of the
decision to abandon it." Moran, 475 U.S. at 421, 106 S.Ct. at
1141. Barbour appears to argue that because of his mental
condition and use of the drugs Lithium and Ativan, he was unaware
of the consequences of abandoning his rights, that is, he did not
abandon them knowingly and intelligently. Although a defendant's
impaired mental state (whether drug induced or otherwise) may
prevent that person from understanding the nature of his or her
waiver, Coleman, 30 F.3d at 1426, this is not the case here. The
district court found there was no evidence that Barbour's severe
depression interfered with his ability to think clearly or with his
understanding of the charges made against him. Likewise, the court
found that the Lithium and Ativan Barbour was taking on February 7
did not impair his ability to understand his rights on that day.
In fact, Barbour himself testified that had he been informed of his
Miranda rights he would have understood their meaning, and his
educational and military experience support this admission.
Because the district court's findings were not clearly erroneous,
we accept that Barbour was informed of his Miranda rights. Because
we also accept Barbour's own admission that he would have
understood his rights had they been read to him, we conclude that
Barbour voluntarily waived his rights and that he was aware of the
nature of these rights and the consequences of waiving them.
III. Sentence Enhancement
The Sentencing Guidelines require a six-level enhancement
"[i]f the offense involved any conduct evidencing an intent to
carry out such threat." U.S.S.G. § 2A6.1(b)(1). Barbour argues
that this enhancement was incorrectly applied to his sentence by
the district judge.
Whether Barbour's conduct evidenced an intent to carry out
his threat raises a mixed question of law and fact. Although we
review the district court's factual findings under a clearly
erroneous standard, United States v. Burton, 933 F.2d 916, 917
(11th Cir.1991), whether the facts evidence an intent to carry out
the threat is a question of law and is reviewed de novo. Id.
Whether conduct that occurred prior to a threat may be considered
when determining if a defendant evidenced an intent to carry out
that threat is a pure question of law subject to de novo review.
Id.
Barbour contends that the conduct upon which the district
court based its application of the enhancement should not have been
considered because it occurred prior to his threat. Specifically,
Barbour argues that evidence of his January 11-18 trip to
Washington and the events that occurred there may not be used to
prove an intent to carry out a threat made on January 29 of that
same year.
Barbour cites United States v. Philibert, 947 F.2d 1467, 1468
(11th Cir.1991), in which this court refused to uphold a six-level
enhancement under § 2A6.1(b)(1). Philibert involved a defendant's
threat to kill his supervisor. The first time the defendant made
such a threat, he said he did it "because he felt like it." Id. at
1468. Nine months after this first threat, the defendant purchased
guns, bayonets and ammunition. Id. Fifty-three days after
purchasing these weapons, the defendant telephoned his supervisor
and threatened his life. Id. at 1468-69. The district court based
the enhancement on the fact that the defendant had purchased the
weapons. This court refused to uphold the enhancement because
there was no evidence in the record
to suggest any connection whatever between appellant's
acquisition of firearms ... and any effort to carry out the
threat.... Indeed, a reasonable conclusion from the facts of
record is that [the appellant made the second threatening
call] "because he felt like it'; there is no evidence
whatever that he had any intention of carrying out the threat.
Id. at 1471. This Court added that if the defendant were
reconvicted,3 the six-level enhancement should not be applied
unless there were additional evidence to justify the required
factual finding. Philibert requires that for a § 2A6.1(b)(1)
enhancement to be justified, there must be an evidentiary basis to
support the conclusion that the defendant's conduct evidenced an
intent to carry out the threat. The decision in Philibert did not,
however, rule out the use of pre-threat conduct in determining
3
The sentence was also overturned. Philibert, 947 F.2d at
1472.
whether a defendant intended to carry out his or her threat. See
United States v. Hines, 26 F.3d 1469, 1474 n. 2 (9th Cir.1994).
Barbour also refers us to United States v. Hornick, 942 F.2d
105 (2nd Cir.1991), cert. denied, 502 U.S. 1061, 112 S.Ct. 942, 117
L.Ed.2d 112 (1992), where the Second Circuit held that pre-threat
conduct may not be used to support an enhancement under §
2A6.1(b)(1). We follow the Ninth Circuit in declining to follow
Hornick. See United States v. Hines, 26 F.3d at 1474;4 see also
United States v. Gary, 18 F.3d 1123, 1128 (4th Cir.) (holding that
pre-threat conduct may form the basis of a § 2A6.1(b)(1)
enhancement), cert. denied, --- U.S. ----, 115 S.Ct. 134, 130
L.Ed.2d 77 (1994). The guideline recognizes that "the seriousness
of [the threat] depends upon the defendant's intent and the
likelihood that the defendant would carry out the threat." §
2A6.1, comment. (backg'd.); see also Hines, 26 F.3d at 1474. If
the defendant's acts demonstrate both that he or she intends to act
on the threat and is, in fact, likely to do so, then whether those
acts occurred before or after the threat should make no difference.
It would make no sense to punish more severely the person who
threatens to kill the President while driving to the store to
purchase a gun than the person who makes the same threat on the way
home from the same store. See United States v. Harris, 763 F.Supp.
546, 551 n. 11 (M.D.Ala.1991).
4
The facts of Hines are strikingly similar to those of the
present case. Hines had gone to Washington, armed with a gun, in
order to kill President Bush. He went to where he thought the
President was making an appearance, but the President was 45
miles away. He then left Washington. Over the course of the
next month, Hines told several people that he intended to kill
President Bush. 26 F.3d at 1472.
Despite our disagreement with the Second Circuit's
categorical rule in Hornick, however, we are sensitive to the
concern expressed by that court when it wrote:
If prior to the actual making of a threat, the government
might scour a defendant's past to unearth some incident that
might point to an intent on defendant's part to carry out a
threat he made later, an upward adjustment would become almost
automatic, and would bear only a tenuous relationship to the
primary conduct at issue—the threat itself.
Hornick, 942 F.2d at 108. The fact that a person has at some point
in life engaged in dangerous or even illegal activity is
insufficient to demonstrate that that person intended to carry out
any particular threat. The purpose of the enhancement is to punish
more severely the individual whose actions indicate an intent to
carry out the threat that serves as the basis for the underlying
conviction. It is not a general mandate to punish more severely
people with bad character or those generally more likely to carry
out their threats. This is the reason why the enhancement in
Philibert was reversed. Although there may be every reason to
think that a person who purchases weaponry is more likely to carry
out death threats than one who does not, the district court in
Philibert did not make the necessary further findings to support
the claim that there was a close nexus between the defendant's acts
and his threat.
Because the evidence must support a direct connection between
the defendant's acts and his or her threat, pre-threat conduct
often may be less persuasive than post-threat conduct.
Nonetheless, we hold that under certain circumstances pre-threat
conduct may be used as evidence to demonstrate a defendant's intent
to carry out a threat. Factors a district court should consider in
determining the probative value of pre-threat conduct include the
following: the proximity in time between the threat and the prior
conduct, the seriousness of defendant's prior conduct, and the
extent to which the pre-threat conduct has progressed towards
carrying out the threat.
In the present case, Barbour "was not just making idle
threats." Hines, 26 F.3d at 1474. Less than two weeks prior to
his threats, Barbour was in Washington, D.C., with one hundred
rounds of ammunition, waiting to assassinate the President. He
failed to carry out his plan only because the President never
arrived where Barbour was waiting, and he returned home only after
discovering the President was out of the country. Barbour never
deviated from his plan to kill the President; he was just denied
the opportunity. Thus, when Barbour made his threats after
returning home, there was every reason to conclude that he intended
to act on those threats and that he was likely to do so. Because
the record supports the district court's determination that Barbour
had evidenced an intent to carry out his threat, the six-level
enhancement pursuant to U.S.S.G. § 2A6.1(b)(1) was properly
applied.
IV.
For the foregoing reasons, Barbour's conviction and sentence
are AFFIRMED.