U.S. v. Mitchell

• Decision Date: 19 March 1987
• Docket Number: No. 86-1049,86-1049
• Citation: 812 F.2d 1250
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leroy MITCHELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1250

812 F.2d 1250

UNITED STATES of America, Plaintiff-Appellee, v. Leroy MITCHELL, Defendant-Appellant.

No. 86-1049.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 4, 1986.

Decided March 19, 1987.

Hayden Aluli, Asst. Fed. Public Defender, Honolulu, Hawaii, for defendant-appellant.

Theodore G. Meeker, Honolulu, Hawaii, for plaintiff-appellee.

Appeal from the United States District Court for the District of Hawaii.

Before NELSON, REINHARDT and WIGGINS, Circuit Judges.

NELSON, Circuit Judge:

Defendant Leroy Mitchell is currently incarcerated under a two-year prison sentence. He contends that his conviction under 18 U.S.C. Sec. 871 (1982) for "knowingly and willfully ... [making] a threat to take the life or to inflict bodily harm upon the President of the United States" should be reversed because his threats to kill President Reagan were the product of an illegal arrest at Honolulu airport. He also challenges the denial of his motion for judgment of acquittal on the ground that, viewing the evidence in the light most favorable to the prosecution, no reasonable factfinder could have found beyond a reasonable doubt that his statements constituted a true threat to kill the President. In addition, he argues that the district court should not have rejected his proposed jury instruction requiring proof of a subjective intent to threaten. We have jurisdiction under 28 U.S.C. Sec. 1291 (1982) and affirm the district court's judgment.

1. BACKGROUND

On April 9, 1985, four days before defendant Mitchell's arrest, Special Agent Colter of the Secret Service received a telex from the American embassy in Singapore alerting the Honolulu office of the Secret Service that Mitchell had been overheard making threats against the life of President Reagan. Mitchell, a Vietnam veteran who was receiving a disability pension from the Veteran's Administration, had been at the embassy trying to contact the guardian through whom he received his payments in order to obtain money to return to the United States. The embassy's telex indicated that Mitchell had a history of making threats against the President and was also suspected of cocaine smuggling. The embassy officials noted that they were not certain whether Mitchell would fly directly to Honolulu from Singapore or arrive from some other country. They estimated an arrival date of April 11, 1985.

In response to the telex, Agent Colter requested the United States Customs office in Honolulu to place a lookout on the Treasury Enforcement Communications System ("TECS") (a computer information system used to alert customs officials to potential or known violators of federal laws), to notify him immediately if Mitchell appeared, and to hold him for questioning by the Secret Service. Mitchell arrived at the Honolulu International Airport two days after the projected arrival date, on April 13, 1985, at 10:14 a.m. When the customs inspector asked Mitchell where he had been traveling, Mitchell responded, "I've been looking for Ronald Reagan." The customs agent entered Mitchell's name into the TECS system, and the computer indicated that he was wanted for questioning by the Secret Service.

Customs agents removed Mitchell from the customs line and turned him over to other customs agents, who retained his passport and airline ticket. Because of the nature of the allegations, the agents moved Mitchell a distance of fifty to sixty feet to a small search room to conduct a brief frisk for weapons, followed by a more thorough pat-down for drugs. After finding no weapons or contraband, the customs agents moved Mitchell from the search room to the supervisor's office, where he remained while customs agents inspected his baggage and while he awaited the arrival of Agent Colter.

At the same time that Mitchell was removed to the search room, a customs agent called Agent Colter at his home, twenty miles from the airport. Pursuant to Secret Service policy to have two agents present when investigating a potentially dangerous suspect, Colter called Agent Spector, the duty agent for the day, to inform him that Colter would pick him up on the way to the airport. Spector's apartment was a fifteen to twenty minute drive from the airport. Colter left his home immediately after phoning Spector.

Agents Colter and Spector arrived at the airport at 11:30 a.m. After the customs officials gave the two agents a brief summary of the events of the preceding hour, Agent Colter introduced himself to Mitchell and informed him that he had come to question him about the statements he made regarding the President while in Singapore. In response, Mitchell made some remarks about royalties that Mercury Records owed him and then asserted, without any further questioning: "I'm going to kill Reagan and then I'm going to kill all of you ... I'll do what I said I'll do." Mitchell added various obscene remarks and threatened to drown President Reagan in the Atlantic Ocean. Following these statements, Agents Colter and Spector arrested Mitchell at about 11:40 a.m. Mitchell allegedly made additional threats to kill the customs and Secret Service agents. He also said that he was Mahatma Gandhi and the son of Nehru and that he had a guerilla army in the Philippines.

Mitchell was indicted on May 9, 1985 for violating 18 U.S.C. Sec. 871 by knowingly and willfully threatening the life of President Reagan at Honolulu airport. He filed a notice of intention to rely on the insanity defense, but withdrew the notice before trial. The district court denied Mitchell's motion to suppress the statements made at the Honolulu airport and also denied a motion

for judgment of acquittal after his conviction by jury trial on December 10, 1985. The district court sentenced Mitchell to two years in prison and imposed the special $50 assessment required by 18 U.S.C. Sec. 3013 (1982). Mitchell filed a timely notice of appeal on February 20, 1986.

II. MOTION TO SUPPRESS DEFENDANT'S STATEMENTS

A. Standard of Review

This court reviews motions to suppress evidence de novo. United States v. Andrade, 784 F.2d 1431, 1433 (9th Cir.1986). The district court's findings of fact at a suppression hearing are upheld unless they are clearly erroneous. United States v. Feldman, 788 F.2d 544, 550 (9th Cir.1986). The ultimate conclusion of the lawfulness of a seizure, however, is a mixed question of law and fact that is reviewed de novo. United States v. McConney, 728 F.2d 1195, 1200-04 (9th Cir.), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). In the present case, the district court adopted the findings and recommendation of the magistrate's report on the defendant's motion to suppress evidence.

B. Analysis

Mitchell contends that his seizure at Honolulu airport ripened into a de facto arrest without probable cause in violation of the fourth amendment, rendering his statements regarding the President suppressible as the fruit of an illegal arrest. He claims that his Honolulu threat to kill President Reagan was not spontaneous and unsolicited, but was prompted by the "functional equivalent of express questioning," and thus should be excluded as tainted evidence. We disagree.

We begin our analysis with a basic proposition. A person who is detained illegally is not immunized from prosecution for crimes committed during his detention. A person does not have a license to kill a police officer merely because the officer arrested him without probable cause. Here, the crime was "knowingly and willfully ... mak[ing] a[ ] ... threat against the President." 18 U.S.C. Sec. 871. When Mitchell made his threat at the Honolulu airport, he committed a felony. The mere fact that he may have been arrested illegally does not serve to bar prosecution of that offense.

Illegally obtained evidence of a crime is subject to the exclusionary rule. The rule does not, however, bar prosecution of the crime itself. As Justice Holmes noted, "[i]f knowledge of [the facts obtained illegally] is gained from an independent source they may be proved like any others." Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319 (1920) (quoted in Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963)).

Here, the evidence that Mitchell seeks to bar and the crime itself are one and the same. Under Mitchell's theory, any evidence of his threat must be excluded. Although his argument is cast in evidentiary terms, what Mitchell seeks in reality is immunity from prosecution for his crime; for it is the crime itself--the making of a threat against the President--not merely evidence of a previously committed crime, that is allegedly the fruit or product of the illegal arrest.

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.

One commentator has suggested that in some circumstances the prosecution of crimes might be prohibited under the exclusionary rule. Professor LaFave acknowledges that in most cases a crime would not come within the "reasonable bounds" of that rule because the taint of the unlawful arrest is ordinarily dissipated by the commission We do not believe that the exclusionary rule is the proper vehicle for determining whether a crime should be immunized from prosecution. In short, we reject the suggestion that in some instances the rule should be extended to bar prosecution of the crime itself. We prefer a different approach.

of the independent act. W. LaFave,...