UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 93-4022
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
GORDON LYNN SMITH,
Defendant-Appellee.
______________________________________________
Appeal from the United States District Court for the
Eastern District of Texas
______________________________________________
(November 10, 1993)
Before GARWOOD, DAVIS and SMITH, Circuit Judges.
GARWOOD, Circuit Judge:
In this interlocutory appeal, plaintiff-appellant the United
States challenges an order of the district court dismissing the
second of two counts charging defendant-appellant Gordon Lynn Smith
(Smith) with knowingly and willfully threatening the life of then-
President Bush, in violation of 18 U.S.C. § 871. The district
court determined that the substantive defense of outrageous
government conduct arose as a matter of law when questioning by a
Secret Service agent led to the renewed threats against the
President charged in Count Two of the indictment. We determine
that the record does not support dismissal on the basis of
outrageous government conduct and, accordingly, reverse.
Facts and Proceedings Below
Defendant-appellee Smith is an inmate in a psychiatric unit at
the Skyview Unit of the Texas Department of Criminal Justice in
Rusk, Texas. On October 23, 1991, Smith told another inmate that
he (Smith) was going to kill President Bush when he got out of the
penitentiary. Correctional Officer R. Jordan overheard this
comment and reported the threats to the warden of the Skyview Unit,
Joe Collins (Collins). Later that same day, Collins interviewed
Smith in his office. Collins had a masters degree in psychology
and had served four years as a prison psychologist. The warden did
not question Smith about his feelings toward the President, but
instead focused on Smith's mental condition; he concluded that
Smith was not psychotic and that "his psychiatric disorder appeared
to be in good remission." Following the interview with Smith,
Collins reported the threat to Secret Service Agent Lynn Holliman
(Holliman).
Two days later, on October 25, 1991, Holliman and Collins
interviewed Smith in Collins' office. Holliman's intent in
questioning Smith was to determine whether Smith posed a serious
threat to the President. The government concedes that neither
Holliman nor Collins gave Smith complete warnings under Miranda v.
Arizona, 86 S.Ct. 1602 (1966), prior to this interview.1 During
1
At a plea hearing held on Smith's attempted plea of guilty
to Count One, Holliman testified:
"I did not advise him his rights per Miranda fully. . .
2
the interview, Smith repeated his threat to kill President Bush.2
On June 17, 1992, a grand jury returned an indictment against
Smith, charging him with two counts of knowingly and willfully
threatening the life of then-President Bush, in violation of 18
U.S.C. § 871(a). Count One was based on Smith's threats made to
the other inmate on October 23; Count Two was based on the threats
made in the warden's office on October 25 in the presence of
Holliman and Collins.
Smith attempted to plead guilty to Count One, but the district
court would not accept his plea because of the lack of evidence
supporting that count. The correctional officer who overheard the
October 23 threat had died in a car accident some time after
October 25, and the inmate to whom the threat was expressed would
not make a statement.3
Smith then moved to "suppress the use of any statements made
. He was told the interview had to be entirely
voluntary on his part. He was free to stop at any time
and he could leave at any time there. I did not tell
him the statements about entitlement [to be represented
by counsel] to this specific reason. I didn't tell him
about this. I was not there to question him about the
statement on the 23rd. I was there to question him
about his feelings towards the President and the
statements he was making there. I never specifically
asked him if he did or did not make the statement on
the 23rd."
2
Smith also made threats against President Bush to the prison
guard who conducted him from his cell to the warden's office, but
no charges arose from these statements. The guard did not
interrogate Smith.
3
According to counsel for the government at oral argument,
the inmate to whom the threats were expressed may now be willing
to cooperate with the government in its attempts to prosecute
Smith on Count One, the October 23 threat.
3
by Defendant while he was in custodial interrogation" on October
25, because he had not been given Miranda warnings. Following an
evidentiary hearing on this motion, the district court agreed with
Smith, ruling that the interview in the warden's office was a
custodial interrogation requiring Miranda warnings, warnings which
admittedly were not fully given.4 The district court based its
ruling on the grounds that Smith was in custody at the time of the
interview, that he knew that he was talking to a government agent
and the warden, and that Collins and Holliman "asked questions, and
set up a coercive environment that they should have known was
likely to elicit incriminating responses from the defendant."
The district court did not suppress the evidence of the
October 25 threat on the basis of the illegal interrogation,
however. Instead, it dismissed Count Two with prejudice, finding
that the substantive defense of outrageous government conduct was
established as a matter of law because Holliman and Collins should
have known that Smith "in discussing his first threat to kill
President Bush, would again threaten to kill the President."5
4
Holliman told Smith that he was not under arrest, that the
interview was voluntary, and that he did not have to answer any
questions. Collins informed Smith that he was free to leave the
office at any time. However, neither Holliman nor Collins told
him that he had the right to have a lawyer present or that
anything he said could be used against him in a court of law.
The decision not to give Smith his full Miranda warnings was
deliberate; Holliman wanted to ensure that he had the information
necessary to protect the President.
5
We note, however, that the undisputed evidence is that at
the October 25 interview Smith was not asked about the October 23
threat; nor is there any evidence that he discussed the October
23 threat at the meeting with Holliman and Collins. Holliman and
Collins and the guard who took Smith to the October 25 interview
were the only witnesses at the suppression hearing.
4
The government appeals the dismissal of Count Two, pursuant to
18 U.S.C. § 3731.
Discussion
I. Miranda Ruling
Before the district court, the government took the position,
inter alia, that Smith was not "in custody" for Miranda purposes at
the October 25 interview. On appeal, however, the government does
not take the position that the district court's finding that Smith
was in "custody" during the interview in Collins' office is clearly
erroneous. The government focuses instead on the district court's
sua sponte dismissal of Count Two on the basis of outrageous
government conduct.
The government does take the position that whether Smith was
in custody for Miranda purposes during the October 25 interview is
an issue that the district court could have properly resolved
either way. The issue is indeed a close one. It is generally
accepted that "a prison inmate is not automatically always in
`custody' within the meaning of Miranda." United States v. Conley,
779 F.2d 970, 973 (4th Cir. 1985), cert. denied, 107 S.Ct. 114
(1986). See also United States v. Willoughby, 860 F.2d 15, 23-24
(2d Cir. 1988), cert. denied, 109 S.Ct. 846 (1989); Flittie v.
Solem, 751 F.2d 967, 974-975 (8th Cir. 1985), cert. denied, 106
S.Ct. 1223 (1986). While a prison setting may increase the
likelihood that an inmate is in "custody" for Miranda purposes,
here both Holliman and Collins told Smith that he was not required
to say anything and that he was free to leave the office at any
time. It may be conceivable, on the other hand, that, even in the
5
face of these statements, Smith might not have felt free to leave
and might have perceived the interview as a custodial
interrogation.
In any event, assuming, arguendo, that a violation of Miranda
occurred, nevertheless the evidence of the renewed threat charged
in Count Two is not inadmissible due to the lack of Miranda
warnings, because the threat constituted a new crime rather than
evidence of a prior offense. United States v. Kirk, 528 F.2d 1057,
1062 (5th Cir. 1976) ("no fifth amendment problem is presented when
a statement is admitted into evidence which is not confessional in
nature, but in and of itself constitutes the crime charged"). See
also United States v. Garcia-Jordan, 860 F.2d 159, 160-161 (5th
Cir. 1988); United States v. Mitchell, 812 F.2d 1250, 1254 (9th
Cir. 1987) (rejecting the suggestion that the exclusionary rule
should be extended, in some circumstances, to bar prosecution of
the crime itself).6 On remand, the alleged Miranda error does not
preclude the government from introducing evidence of, or
prosecuting Smith for, the threats made during the October 25
interview.
6
"Committing a crime is far different from making an
inculpatory statement, and the treatment we afford the
two events differs accordingly. An inculpatory
statement usually relates to a previously committed
illegal act; there is nothing unlawful about the
statement itself. A crime, on the other hand, whether
committed by word or deed is by definition an act that
violates the law. We exclude inculpatory evidence when
it is obtained as a result of an unlawful search or
seizure. We have never, however, applied the
exclusionary rule as a bar to the prosecution of a
crime." Mitchell, 812 F.2d at 1253.
6
II. Outrageous Government Conduct
The district court's dismissal of Count Two on the ground of
outrageous government conduct was sua sponte. The possible
existence of a substantive defense to the second count was not
raised at the suppression hearing, and the government had no notice
that the district court was considering any issue but the Miranda
question in its ruling on Smith's motion to suppress. Although it
was error for the district court to so rule without providing the
government adequate notice, we address the merits of the court's
ruling.
The district court relied on this Court's decision in United
States v. Garcia-Jordan, 860 F.2d 159 (5th Cir. 1988). There, we
stated that, "in extreme cases, outrageous police conduct may
afford the accused a substantive defense to the prosecution" of a
crime committed during an illegal stop or detention. Id. at 161.7
In order to benefit from the defense of outrageous government
conduct, Smith bears the burden of proving that he was not an
active participant in the criminal activity and that the government
was overinvolved in the charged crime. United States v. Arditti,
7
The district court seemed to treat the substantive defense
mentioned in Garcia-Jordan as separate from the defenses of
entrapment or outrageous government conduct. The defense, as
contemplated by the district court, would apply where police
conduct creates a situation "in which a given criminal response
is predictable." United States v. Mitchell, 812 F.2d at 1254.
Contrary to the district court's interpretation, the defense
discussed in Garcia-Jordan is that of outrageous government
conduct. Both Garcia-Jordan and Mitchell, the Ninth Circuit case
on which the Garcia-Jordan court relied, refer to "outrageous
police conduct" or "[e]ntrapment and `outrageous government
conduct.'" Garcia-Jordan, 860 F.2d at 161; Mitchell, 812 F.2d at
1254.
7
955 F.2d 331, 343 (5th Cir.), cert. denied, 113 S.Ct. 597 (1992)
and 113 S.Ct. 980 (1993). This defense is available only where the
conduct of the law enforcement officials is so outrageous that it
violates notions of fundamental fairness implicit in the Due
Process Clause of the Fifth Amendment. United States v. Yater, 756
F.2d 1058, 1065 (5th Cir.), cert. denied, 106 S.Ct. 225 (1985)
(citing United States v. Russell, 93 S.Ct. 1637, 1643 (1973)).
This Court has never invalidated a conviction on this ground.
United States v. Collins, 972 F.2d 1385, 1396 (5th Cir. 1992),
cert. denied, 113 S.Ct. 1812 (1993).
In Garcia-Jordan, we relied on the Ninth Circuit's opinion in
United States v. Mitchell, 812 F.2d at 1254, describing the
substantive defense of outrageous government conduct:
"We do not mean to suggest that unlawful government
conduct may not serve as a basis for immunizing a person
from criminal liability. Entrapment and `outrageous
government conduct' are examples of instances in which
we, and other courts, have held that persons may not be
convicted of particular offenses. When it is claimed
that the police have exploited an illegal arrest by
creating a situation in which a given criminal response
is predictable, we believe that a better approach would
be to determine whether the government's prosecution of
the crime would abridge fundamental protections against
unfair treatment. Affording a substantive defense to a
crime committed during an illegal detention when
particular circumstances so warrant provides a more
rational and measured way of protecting individual rights
than does the application of fourth amendment analysis to
all such cases." 812 F.2d at 1254 (internal citation
omitted).
Neither the Garcia-Jordan court nor the Mitchell court held
that the outrageous government conduct defense was available on the
facts before them. In Garcia-Jordan, a defendant moved to suppress
his statement to a Border Patrol agent, in which he falsely claimed
8
to be a United States citizen, contending that the agent stopped
his vehicle illegally. Without deciding the legality of the stop,
this Court affirmed the district court's denial of the motion to
suppress, holding that the exclusionary rule did not bar the
defendant's prosecution for the new crime of his false claim to
citizenship, which was different from any conduct that might have
led to the allegedly illegal stop. Garcia-Jordan, 860 F.2d at 161.
The facts of Mitchell are similar to those in the present
case. Authorities in Singapore informed Secret Service agents in
Hawaii that Mitchell, then in Singapore, had made several threats
against President Reagan, and that Mitchell was planning to return
to the United States. Several days later, when Mitchell was
proceeding through customs in Hawaii, he made comments to a customs
agent that caused the agent to check computer records for
information on Mitchell; these records alerted the customs agent to
the fact that Mitchell was wanted for questioning by the Secret
Service. While waiting for the Secret Service agents to arrive,
custom agents took Mitchell to a small room and searched him for
contraband and weapons. Mitchell was detained for approximately
one hour until the Secret Service agents arrived.
When Secret Service agents questioned Mitchell about the
statements he had made in Singapore regarding President Reagan,
Mitchell asserted his intention to kill the President. Mitchell
was charged with violating 18 U.S.C. § 871. He moved to suppress
his statements made to the Secret Service agents on the ground that
his detention at the airport amounted to a de facto arrest without
probable cause.
9
The Ninth Circuit affirmed the district court's denial of the
motion to suppress, holding that the exclusionary rule did not bar
prosecution of the crime charged. Mitchell, 812 F.2d at 1253-1254.
The Court stated further that, although unlawful government conduct
could provide a substantive defense in some circumstances,
Mitchell's prosecution did not "offend any sense of fair treatment
or fair play, regardless of the legality or illegality of his
detention." Id. at 1254.
Similarly, the defense of outrageous government conduct does
not protect Smith. "[A] defendant cannot avail himself of the
defense where he has been an active participant in the criminal
activity which gave rise to his arrest." United States v. Yater,
756 F.2d at 1066 (original emphasis). Smith took an active role
here; Collins testified at the suppression hearing that when Smith
began to talk, he spoke "very freely." There is no contrary
evidence.
Further, the conduct of Holliman and Collins does not amount
to an abridgement of the fundamental fairness guaranteed by the Due
Process Clause. Neither Holliman nor Collins was overinvolved in
the crime charged. While Smith was afforded the opportunity to
express threats, he was not urged, tricked, or baited into doing
so. Nor were the threats drawn from Smith by prolonged
questioning.8 See Mitchell, 812 F.2d at 1254-1255 ("Mitchell was
8
Smith was initially informed by Holliman that Holliman's job
was to protect the President and he wanted to "interview him
[Smith] about his feelings towards the president," that "any
talking had to be entirely voluntary," that Smith "had the right
to stop talking at any time" and "the right to leave the room at
any time," and that he was "not under arrest." Collins then told
10
in no way pressured or induced to make the new threat against the
President."). This case is unlike those in which the outrageous
conduct defense is normally asserted in which the government has
instigated a sting operation and "enticed" the defendant into
participating in the illegal activity. See, e.g., United States v.
Yater, 756 F.2d at 1060-1061 (upon direction of law enforcement
officials, government informants contacted defendant about
Smith "I didn't want him to think that he was trapped or forced
to talk to someone he didn't want to talk to. And as warden of
the institution, I just reassured him that he could leave
whenever he wanted to." Collins testifed, without contradiction,
that he then:
"asked him several questions just to sort of put him at
ease. I asked him about his parole, which he said was
imminent. I asked him like, What are you going to do
when you get out of the penitentiary?
Q What did he say in response?
A At that point, he said that he was going to kill an
inmate that was still incarcerated in TDC, and then he
said he was going to travel to the Mid-East. And then
he just started to sort of tell his story aboutSQthat's
how the president's name came up.
Q So, it evolved into a conversation about the
president?
A Really quickly it evolved into that.
Q And what did he say about the president in this
interview?
A He said he was going to travel to the Mid-East to
Iraq, that he was a Muslim and that Saddam Hussein was
the leader of the Muslim world and was his leader, and
that President Bush was the leader of the Christian
world and, therefore, was his enemy. And that he was
going to kill him and that he would wait for the right
time."
The interview lasted between an hour and a half and an hour
and three quarters.
11
trafficking in cocaine). Here, Smith knew the identities of both
Collins and Holliman and was aware of their purpose in questioning
him. He was aware of Holliman's role with the Secret Service and
of the serious implications of any threats against the President.
It was not Holliman's intent to elicit a new threat.9 As an
agent of the governmental agency charged with the President's
safety, Holliman was responsible for determining the seriousness of
Smith's threat. Questions to Smith concerning his feelings toward
President Bush were therefore proper. Although it is quite
conceivable that these questions could lead, as they did in fact
lead, to the renewed threat charged in Count Two, it is also
plausible that Smith would attempt to conceal or minimize his
hostile attitude or intentions respecting the President. We
conclude that Smith's criminal response, though perhaps probable,
was not predictable with reasonable certainty and that in any event
the conduct leading to it was not outrageous.
The district court was concerned about possible manipulation
of Smith's psychological condition. If the defendant suffers from
a serious mental condition, it is possible that a jury may find for
him on the defense of insanity. His mental condition might also be
something that could be considered at sentencing. On the other
hand, if Smith is merely mentally unbalanced, it is the
government's right, and indeed it may be its duty, to prosecute him
for the offense charged. We note that it is frequently an
9
Holliman testified that "[t]he purpose was to investigate
the threat and to do adequate background investigation to
evaluate the threat and the danger toward the president of the
United States . . . ."
12
unbalanced person who commits the offense of threateningSQand
sometimes of attempting to killSQa president.
Finally, in dismissing Count Two, the district court was
influenced by the agents' failure to give full Miranda warnings.
Although it is true that Collins and Holliman deliberately decided
not to give Smith his full Miranda warnings, there is no evidence
of a bad faith intent to violate Smith's rights. Whether Miranda
applied was at least less than obvious. The agents did not intend
to elicit a confession to the October 23 threat and, indeed, did
not even question Smith concerning his October 23 statements (see
note 5, supra). And, as discussed above, the failure to give
Miranda warnings does not prevent prosecution of a new crime.
Mitchell, 812 F.2d at 1253-1254.
Further, "[t]he prophylactic Miranda warnings are `not
themselves rights protected by the Constitution but [are] instead
measures to insure that the right against compulsory self-
incrimination [is] protected.'" Duckworth v. Eagan, 109 S.Ct.
2875, 2880 (1989) (quoting Michigan v. Tucker, 94 S.Ct. 2357, 2364
(1974)). See also Oregon v. Elstad, 105 S.Ct. 1285, 1291-1293
(1985) (declining to extend the "fruit of the poisonous tree"
doctrine to Miranda violations); United States v. Harrell, 894 F.2d
120, 125 (5th Cir.), cert. denied, 111 S.Ct. 101 (1990) ("The
[fruit of the poisonous tree] doctrine operates only where
constitutional violations arise, and Miranda's prophylactic
warnings are not constitutional rights in and of themselves.").10
10
Cf. New York v. Quarles, 104 S.Ct. 2626 at 2641, 2647-48
(1984) (Marshall, J., joined by Brennan, J., and Stevens, J.,
13
The failure to give Smith his full Miranda warnings did not, in and
of itself, amount to a constitutional violation.
At the suppression hearing, the defense made much of
Holliman's statement that he would violate a person's Miranda
rights if he thought it necessary to protect the President.
Contrary to the district court's disapproval of this sentiment, we
agree with the government. While in some circumstances evidence
obtained in such a situation may not be admissible in court,
Holliman's mere questioning of Smith without full Miranda warnings
did not violate Smith's constitutional rights against self-
incrimination. Holliman had a duty to investigate the seriousness
of Smith's threat and to ensure the safety of the President; it was
not unconstitutional for Holliman to choose not to give Smith his
Miranda warnings in order to fulfill this duty.
If this Court is ever to apply the outrageous government
conduct defense, it should not apply on facts such as these, where
the police conduct that leads to the new crime is appropriate and
not unreasonable.
dissenting) ("If a bomb is about to explode or the public is
otherwise imminently imperiled, the police are free to
interrograte suspects without advising them of their
constitutional rights. Such unconsented questioning may take
place . . . when . . . advising a suspect of his constitutional
rights might decrease the likelihood that the suspect would
reveal life-saving information. If trickery is necessary to
protect the public, then the police may trick a suspect into
confessing. While the Fourteenth Amendment sets limits on such
behavior, nothing in the Fifth Amendment or our decision in
Miranda v. Arizona proscribes this sort of emergency questioning.
All the Fifth Amendment forbids is the introduction of coerced
statements at trial.").
14
Conclusion
For the reasons stated above, the order of the district court
dismissing Count Two of the indictment is REVERSED, and this cause
is REMANDED for further proceedings not inconsistent with this
opinion.
REVERSED AND REMANDED
15