U.S. v. Barbour

• Decision Date: 12 December 1995
• Docket Number: No. 94-2981,94-2981
• Citation: 70 F.3d 580
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ronald Gene BARBOUR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 580

70 F.3d 580

UNITED STATES of America, Plaintiff-Appellee, v. Ronald Gene BARBOUR, Defendant-Appellant.

No. 94-2981.

United States Court of Appeals, Eleventh Circuit.

Dec. 12, 1995.

Clarence Counts, Asst. Federal Public Defender, Orlando, Florida, for Appellant.

James G. Glazebrook, Edward L. White, III, Asst. U.S. Attys., Orlando, Florida, Tamra Phipps, Asst. U.S. Atty., Tampa, Florida, for Appellee.

Appeal from the United States District Court for the Middle District of Florida.

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. Sec. 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. Sec. 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, 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 Veterans 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. Sec. 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 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 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...