United States v. Santos

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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