U.S. v. Smith, 93-4022

• Decision Date: 10 November 1993
• Docket Number: No. 93-4022,93-4022
• Citation: 7 F.3d 1164
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Gordon Lynn SMITH, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1164

7 F.3d 1164

UNITED STATES of America, Plaintiff-Appellant, v. Gordon Lynn SMITH, Defendant-Appellee.

No. 93-4022.

United States Court of Appeals, Fifth Circuit.

Nov. 10, 1993.

Richard A. Friedman, Appellate Section Criminal Div., U.S. Dept. of Justice, Washington, DC, Allen H. Hurst, Asst. U.S. Atty. and Bob Wortham, U.S. Atty., Tyler, TX, for plaintiff-appellant.

David Hill, Henderson, TX (court appointed), for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Texas.

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, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), prior to this interview. ¹ During 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 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

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, 479 U.S. 830, 107 S.Ct. 114, 93 L.Ed.2d 61 (1986). See also United States v. Willoughby, 860 F.2d 15, 23-24 (2d Cir.1988), cert. denied, 488 U.S. 1033, 109 S.Ct. 846, 102 L.Ed.2d 978 (1989); Flittie v. Solem, 751 F.2d 967, 974-975 (8th Cir.1985), cert. denied, 475 U.S. 1025, 106 S.Ct. 1223, 89 L.Ed.2d 333 (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 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.

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, 955 F.2d 331, 343 (5th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 597, 121 L.Ed.2d 534 (1992) and --- U.S. ----, 113 S.Ct. 980, 122 L.Ed.2d 134 (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, 474 U.S. 901, 106 S.Ct. 225, 88 L.Ed.2d 226 (1985) (citing United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366 (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, --- U.S. ----, 113 S.Ct. 1812, 123 L.Ed.2d 444 (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...