UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 97-1085
UNITED STATES OF AMERICA,
Appellee,
v.
EDWARD J. SANTOS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Torruella, Chief Judge,
Boudin, Circuit Judge,
and Woodlock,* District Judge.
James T. McCormick for appellant.
Margaret E. Curran, Assistant United States Attorney, with whom
Sheldon Whitehouse, United States Attorney, and Edwin J. Gale,
Assistant United States Attorney, were on brief for the United
States.
December 8, 1997
*Of the District of Massachusetts, sitting by designation.
BOUDIN, Circuit Judge. On this appeal, Edward Santos
seeks review of his conviction and sentence for threatening
to kill President Clinton. At the time of the threat, Santos
was an inmate at the Adult Correctional Institution ("the
ACI") in Cranston, Rhode Island. Santos had a history of
psychiatric disease, including a diagnosis of chronic
paranoid schizophrenia. The pertinent events can be quickly
summarized.
On August 17, 1994, the White House mail room received a
letter containing a threat to assassinate President Clinton.
The letter, which had been mailed from the ACI, read in
relevant part: "[Y]ou have upset me to the point that I feel
I should assassinate you which would enable me to go down
with the history books and if the Secret Service gets in my
way they will get it too." The letter was signed "Barry
Shea" (who is the head of the ACI classification board). The
Secret Service began an investigation.
After two inmates identified Santos as the sender, and
in light of Santos's previous mailing of a threatening letter
to President Reagan in 1986, Secret Service agents
interrogated Santos at the prison on August 26, 1994, and
January 12, 1995. At both interviews, Santos admitted his
involvement with the letter. The letter had been written by
another inmate, Raymond Francis; but Francis said, and Santos
admitted, that Santos had given Francis a text to copy over
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and that Santos had mailed the letter. Apparently, Santos
feared that his own handwriting would be recognized by the
Secret Service due to the 1986 letter.
Santos was charged with making a threat against the
President, in violation of 18 U.S.C. 871. Santos underwent
a psychiatric examination and was found competent to stand
trial. The prosecution witnesses at trial included Francis
and the Secret Service agent who conducted the interview with
Santos. Santos offered an insanity defense; his expert
testified that Santos suffered from a chronic mental disease
that prevented him from appreciating the wrongfulness of his
actions. The prosecution experts opined that Santos was
lying about his symptoms.
The jury convicted Santos, and the district judge
sentenced him to 57 months in prison. The judge ruled that
threatening the President was a "crime of violence" under the
career offender provisions of the Sentencing Guidelines, see
U.S.S.G. 4B1.1, 4B1.2(1)(i), and sentenced Santos within
the resulting guideline range. The judge refused to depart
downward based on mental condition. Santos has appealed,
raising a series of issues.
1. In the district court, Santos argued at a
suppression hearing that his confessions were invalid because
his will was overborne by the combination of his mental
disease and the conduct of the Secret Service agents. Santos
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alleged that at the first interview, one of the agents yelled
at him and called him a liar; and he argued that this
conduct, in concert with his fragile mental state (of which
the agent was aware), rendered his confession involuntary.
The second interview, Santos asserted, was tainted by the
first.
At the hearing the agent testified that the initial
interview had been conducted in an interview room in
midmorning and Santos was not in handcuffs; that Santos had
been advised of his rights to counsel and to remain silent
but had invoked neither; that the agent had yelled at Santos
and had called him a liar when Santos had at first denied
involvement; that Santos was nervous but appeared to have no
difficulty in understanding questions and gave understandable
answers; and that the interview from start to finish took no
more than 90 minutes.
The district court found that Santos had voluntarily
waived his rights to counsel and to remain silent and that
his statements were voluntary rather than coerced. Findings
of raw fact are reviewed for clear error. See United States
v. Procopio, 88 F.3d 21, 27 (1st Cir.), cert. denied, 117 S.
Ct. 620 (1996) and 117 S. Ct. 1008 (1997). We will assume,
favorably to Santos, that the ultimate conclusion as to
voluntariness is open to de novo review, with some possible
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allowance for the district court's superior vantage. See
Ornelas v. United States, 116 S. Ct. 1657, 1663 (1996).
We find no reason to disagree with the district judge.
Santos was not irrational or incapable of understanding his
rights. While his mental history is certainly pertinent to
the voluntariness of his statements, the precedents still
require some degree of coercion or trickery by government
agents to render a statement involuntary, see Colorado v.
Connelly, 479 U.S. 157, 167 (1986), and yelling once or twice
does not reach this level. The scene may make some
squeamish, but that is not the constitutional standard, and
Santos's statements were properly admitted.
In a supplemental brief, Santos raises another issue
related to the voluntariness of his statements. Citing 18
U.S.C. 3501(a), Santos argues that the judge committed
plain error when she failed to give an instruction telling
the jury that it could choose to give less weight to his
confessions because of the surrounding circumstances. The
section reads, in pertinent part:
If the trial judge determines that the confession
was voluntarily made it shall be admitted in
evidence and the trial judge shall permit the jury
to hear relevant evidence on the issue of
voluntariness and shall instruct the jury to give
such weight to the confession as the jury feels it
deserves under all the circumstances.
Id. (emphasis added). Neither side requested this
instruction.
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Section 3501(a) obviously assumes that the defendant has
sought to make an issue of voluntariness before the jury
after being rebuffed by the trial judge. See United States
v. Fera, 616 F.2d 590, 594 (1st Cir.), cert. denied, 446 U.S.
969 (1980). It appears that Santos did follow this course in
the present case, and he would certainly have been entitled
to the instruction if he had sought it. We will assume,
arguendo, that because of the "shall" language in the statute
the district judge "erred" in failing to give the instruction
even without being asked, without resolving the government's
claim that the evidence here did not create a legitimate
issue of voluntariness.
But under United States v. Olano, 507 U.S. 725, 734, 741
(1993), an error that occurred without objection at trial--
however flagrant--does not warrant reversal unless it likely
affected the outcome. There are a few exceptions to this
requirement for so-called structural errors so fundamental as
to undermine the integrity of the trial process, see id. at
735 (citing Arizona v. Fulminante, 499 U.S. 279, 310 (1991)),
but the present "error" is not within miles of that very rare
category. It would be hard, indeed, to conduct trials if
trial errors could be ignored by counsel and then freely
raised on appeal.
Here, it is not likely that the jury would have found
the confessions involuntary or unworthy of belief if the
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instruction had been given. The trial judge found the
confessions to be voluntary and we have agreed, so we can
hardly assume that the jury would probably have decided
otherwise. As for credibility, the surrounding circumstances
might, as a common-sense matter, have affected the jury's
judgment about the weight to be given to Santos's statements,
but evidence of those circumstances was admitted in evidence.
2. Santos disputes several of the evidentiary rulings
at trial. First, he says that it was error to exclude the
fact that in 1986 the then-U.S. Attorney did not prosecute
Santos when Santos wrote a threatening letter to President
Reagan; the U.S. Attorney had cited "obvious mental illness"
as one reason for declining prosecution. Trial court
judgments such as this one, weighing the extent of relevance
and then balancing relevance against prejudice, are reviewed
for abuse of discretion. See United States v. Rivera-Gomez,
67 F.3d 993, 997 (1st Cir. 1995).
Even assuming no hearsay objection, a U.S. Attorney is
not an expert on mental condition. Thus we doubt that much
weight could be given to such a lay assessment, even if we
ignored the fact that the assessment related to Santos's
state in 1986 and the pertinent issue at trial related to his
state in 1994. The potential for prejudice and confusion is
also apparent. The decision to exclude the evidence was not
an abuse of discretion, especially in a trial where there was
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extensive expert testimony directed to the crucial issue
whether Santos was sane in 1994.
Second, Santos asserts that the judge should have
admitted proffered evidence that, in 1989, other inmates had
forged Santos's signature on a letter threatening President
Bush. The government now says that the incident was
irrelevant (at the time it argued that the incident was
"remote"). We need not pursue the issue of relevance because
we agree with the government's alternative argument, made
both at trial and now, that the agent questioned about the
incident had only hearsay knowledge of the earlier threat.
Third, Santos says that it was error to allow a
psychologist to testify that he had found Santos fit to stand
trial because, Santos claims, the jury could mistake fitness
to stand trial for an opinion that Santos was sane for
purposes of the insanity defense. The standards of
competency and insanity are admittedly different, and by
statute a finding by the court of competency to stand trial
is not to "prejudice" an insanity defense or be "admissible"
at trial. 18 U.S.C. 4241(f).
Here, of course, the court's competency finding was not
offered or otherwise used against Santos. At best, the
argument is that the underlying policy of the statute--at
least partly to avoid confusion--should equally bar the
expert on insanity from referring to competency. We need not
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resolve the issue: there was no objection at trial to the
comment at issue; and, as it was dwarfed by extensive
testimony on the insanity issue by both sides, the Olano
prejudice standard cannot be satisfied.
Fourth, the prosecution's psychiatric witness,
responding to a question as to which facts helped him in
evaluating Santos's mental condition, testified that Santos's
efforts to "throw people off his trail" indicated that he
"knew what he was doing was wrong." Santos argues that this
testimony amounted to an "opinion . . . as to whether the
defendant did or did not have the mental state or condition
constituting an element of the crime charged or a defense
thereto," in violation of Fed. R. Evid. 704(b).
Rule 704(b) has proved troublesome to administer and is
not universally popular, because it complicates the provision
of expert testimony and involves very difficult line drawing.
See 2 S. Saltzburg & M. Martin, Federal Rules of Evidence
Manual 101-02 (5th ed. 1990); see also United States v.
Brown, 32 F.3d 236, 238 (7th Cir. 1994). Whether much is
changed by stopping the expert's testimony just short of the
ultimate issue is open to doubt. Still, Congress is entitled
to an honest effort by judges to comply with its rule.
Here, however, the statement in dispute was not objected
to at trial. The main force of the testimony lay in the
ascription of conscious trickery to the defendant, not in the
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arguably forbidden explicit reference to knowledge of
wrongdoing. Olano's prejudice showing cannot be met. This
is, therefore, not an occasion for seeking to fine-tune our
interpretation of Rule 704(b), a daunting task under the best
of circumstances.
3. Santos claims that he was over-medicated during the
trial and unable to assist in his defense. The district
judge held a post-trial hearing on the claim, at which there
was testimony from both sides. Despite testimony from a
psychiatrist, Santos's father, and Santos's attorney to the
effect that Santos was unresponsive, the judge credited the
prosecution expert, who testified that Santos's description
of symptoms was more consistent with an effort to deceive
than with actual indicators of incompetence.
We uphold a district judge's determination of competency
after a hearing unless clearly erroneous. See United States
v. Lebron, 76 F.3d 29, 32 (1st Cir.), cert. denied, 116 S.
Ct. 2537 (1996). The judge heard testimony from a competent
expert that Santos was likely pretending and could, in any
event, have assisted in his defense. There is no clear error
in the judge's determination that Santos was competent to
stand trial.
Santos also sought a new trial on the ground that the
verdict was against the weight of the evidence. We have
examined the evidence offered by both sides. It is enough to
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say that the government offered expert evidence of Santos's
sanity which, although countered by a defense expert,
remained substantial. The denial of the new trial motion was
in no sense an abuse of discretion.
4. Finally, Santos attacks his sentence on two fronts.
First, he argues that his act of sending a threatening letter
to the President should not be considered a "crime of
violence" for the purposes of U.S.S.G. 4B1.1. This section
increases offense level and criminal history category for
"career offenders," where the present crime is one of
violence or a controlled substance offense and where the
defendant has had two or more prior convictions for such an
offense.
Santos says that his present crime was not a "crime of
violence." As a matter of bare language, one could easily
argue that this quoted phrase does not embrace a mere
criminal threat of violence. But unfortunately for Santos,
U.S.S.G. 4B1.2(a)(1) expressly defines the quoted phrase,
for purposes of section 4B1.1, to include any offense
punishable by more than a year in prison that has as an
element "the . . . threatened use of physical force against
the person of another . . . ."
The offense statute in this case, 18 U.S.C. 871, makes
it criminal to send any letter threatening "to take the life
of, to kidnap, or to inflict bodily harm" on the President.
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The indictment expressly charged Santos with threatening the
life of and bodily harm to the President. Thus, Santos's
offense had as an element the threatened use of physical
force against another person.
Santos is therefore probably mistaken in invoking United
States v. Leavitt, 925 F.2d 516 (1st Cir. 1991), where this
court said that the defendant's own conduct should be
examined where the statute embraces both violent and non-
violent conduct. But even if we looked solely to Santos's
conduct, a threat to assassinate does involve threatened
force against another. It is of no help that he may not have
intended to carry out his threat, and in the short run
certainly could not in fact have done so. See United States
v. Poff, 926 F.2d 588, 590 (7th Cir.), cert. denied, 502 U.S.
827 (1991).
Santos's second challenge to his sentence is his
contention that his mental condition merited a downward
departure. His theory is that his severe mental illness was
a mitigating circumstance not adequately accounted for in the
guidelines, U.S.S.G. 5K2.0, or reflected reduced mental
capacity for which departure may be permitted under U.S.S.G.
5K2.13. However, a refusal to depart is unreviewable
unless the district court based it on an error of law. See
United States v. Clase-Espinal, 115 F.3d 1054, 1056 n.3 (1st
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Cir. 1997), cert. denied, 66 U.S.L.W. 3323 (Nov. 3, 1997)
(No. 97-5881).
There is no such error here. The district court did not
refuse to depart because of a ruling of law that could be
challenged on appeal as mistaken. Instead, it found that
Santos's mental illness did not diminish his capacity to
understand what he was doing nor did it contribute to the
carrying out of the offense. We have no authority to review
this determination. See United States v. Tardiff, 969 F.2d
1283, 1290 (1st Cir. 1992).
Affirmed.
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