                                  ____________

                                  No. 95-3633
                                  ____________

United States of America,     *
                                     *
                   Appellee, *
                                     *
     v.                              *    Appeal from the United States
                                     *    District Court for the Eastern
John McKinney,                       *    District of Arkansas.
                                     *
                   Appellant. *
                                  ____________

                        Submitted:   April 11, 1996

                          Filed: July 1, 1996
                                ____________

Before MAGILL and LOKEN, Circuit Judges, and GOLDBERG,* Judge.
                              ____________


GOLDBERG, Judge.


     A jury convicted John McKinney of threatening to assault a member of
Congress, and the district court1 sentenced him to 18 months in prison.
On appeal, Mr. McKinney makes the following arguments:     (1) the district
court erred by admitting certain inculpatory statements that he made; (2)
the evidence presented at trial was insufficient to support his conviction;
and (3) the district court applied the incorrect sentencing guideline.     We
affirm.




     *THE HONORABLE RICHARD W. GOLDBERG, Judge, United States
     Court of International Trade, sitting by designation.
          1
       THE HONORABLE GEORGE HOWARD, JR., United States District
Judge for the Eastern District of Arkansas.
                                   I.      BACKGROUND


      In   1994,   a   United   States     Congresswoman   from     Arkansas,    Blanche
Lambert, received several letters that contained menacing, obscene, and
anti-semitic remarks.       Most of the letters were signed by John McKinney of
Poinsett County, Arkansas (the "signed letters").           One letter, however, was
unsigned (the "unsigned letter").             This letter included a particularly
explicit threat to the Congresswoman:


      You had better get you some body armour. Remember it will not stop
      an icepick [sic] esp. in the eyes (my favorite).       My Vietnam
      speciality [sic]. 34 to my name (2 American traitor captains).

      . . . I hope I get close enough to do my assignment soon.                 The pick
      is 13 inche [sic] long.


The disturbing letters prompted the FBI to conduct an investigation.


      On September 16, 1994, an FBI agent went to Poinsett County to
interview Mr. McKinney.       The FBI agent had the Sheriff of Poinsett County
drive him to Mr. McKinney's rural home.            When they arrived, Mr. McKinney
awoke and came outside.      Although it was raining lightly, Mr. McKinney did
not invite the FBI agent and the sheriff inside his home.                The agent and
the   sheriff therefore sought to speak with Mr. McKinney inside the
sheriff's car.     Mr. McKinney willingly sat in the back seat of the car.
The record does not show whether the doors to the back seat could be opened
from the inside.


      The FBI agent questioned Mr. McKinney about the signed and unsigned
letters that were sent to Congresswoman Lambert.                 Mr. McKinney admitted
that he had written the signed letters.             He did not, however, admit to
writing    the   unsigned    letter   to    her.    When   the    FBI   agent   finished
questioning Mr. McKinney, Mr. McKinney




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returned to his home.   The FBI agent did not intend to arrest Mr. McKinney
at that time.


     Mr. McKinney was eventually indicted on charges of threatening a
member of Congress and mailing a threat, based upon the explicit threat in
the unsigned letter sent to Congresswoman Lambert.     Mr. McKinney made a
motion to suppress the statements that he made while in the sheriff's car,
claiming that he should have received certain warnings pursuant to Miranda
v. Arizona, 384 U.S. 436 (1966).      The district court denied the motion.
At trial, Mr. McKinney's admission regarding the signed letters was
admitted.   In addition, an expert testified that the handwriting in the
signed letters matched the writing in the unsigned letter and its envelope.
Another expert testified that Mr. McKinney's palm print was on the unsigned
letter, and that someone else's fingerprints were on its envelope.


     The jury found Mr. McKinney guilty of threatening a member of
Congress, but it acquitted him of mailing a threat.      The district court
denied Mr. McKinney's post-trial motion for acquittal and sentenced him to
18 months in federal prison.


                               II.   DISCUSSION


A.   Miranda Warnings


     Mr. McKinney argues that he was entitled to Miranda warnings when the
FBI agent questioned him because he was in custody at that time.        The
United States argues that Mr. McKinney was not in custody because the
authorities did not restrain his physical movement to a degree associated
with arrest.




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     We review the district court's conclusions concerning custody under
the "clearly erroneous" standard.2         United States v. Griffin, 922 F.2d
1343, 1347 (8th Cir. 1990).      We "must affirm unless the decision of the
district   court   is   unsupported   by   substantial   evidence,   based   on    an
erroneous interpretation of applicable law, or, in light of the entire
record, we are left with a firm and definite conviction that a mistake has
been made."   United States v. Jorgensen, 871 F.2d 725, 728 (8th Cir. 1989).


     Miranda, 384 U.S. 436, established that a person "must be advised of
the right to be free from compulsory self-incrimination, and the right to
the assistance of an attorney," any time that person is taken into custody
for questioning.   Griffin, 922 F.2d at 1347.     Custody occurs not only upon
formal arrest, but also under "any other circumstances where the suspect
is deprived of his freedom of action in any significant way."                     Id.
(emphasis in original).


     In determining whether a suspect is in custody, we "consider the
totality of the circumstances."       United States v. Helmel, 769 F.2d 1306,
1320 (8th Cir. 1985).       In doing so, we examine the following relevant
factors:   the length of interrogation, the accused's freedom to leave the
scene, and the place and purpose of the interrogation.         Id.


     In addition, we examine certain factors that are often referred to
as "indicia of custody":


     (1) whether the suspect was informed at the time of questioning
     that the questioning was voluntary, that the




      2
      We note that this standard may be reconsidered in light of
Thompson v. Keohane, ___ U.S. ___ (1995) (holding that, in habeas
corpus cases, federal courts should independently review state
court custody determinations). We have reviewed Thompson, and we
conclude that the result would be the same in this case if we
utilized a de novo standard of review.

                                       -4-
      suspect was free to leave or request the officers to do so, or
      that the suspect was not considered under arrest; (2) whether
      the suspect possessed unrestrained freedom of movement during
      questioning; (3) whether the suspect initiated contact with
      authorities or voluntarily acquiesced to official requests to
      respond to questions; (4) whether strong arm tactics or
      deceptive stratagems were employed during questioning; (5)
      whether the atmosphere of questioning was police dominated; or,
      (6) whether the suspect was placed under arrest at the
      termination of questioning.


Griffin, 922 F.2d at 1349.      The first three of these factors tend to
mitigate against a finding of custody.    Id.   The last three factors tend
to weigh in favor of a finding of custody.   Id.    A finding of custody does
not, however, have to be supported by all six factors.      Id.


      In this case, relevant factors indicate that Mr. McKinney was not in
custody when the authorities questioned him.        First, the length of the
interrogation does not indicate that Mr. McKinney was in custody, as the
authorities did not speak with Mr. McKinney for a particularly long time.
Second, although Mr. McKinney was questioned in the back seat of the
sheriff's car, the evidence fails to prove that Mr. McKinney could not
leave the scene.   He was not handcuffed, and there is no evidence to show
that he could not open the car doors.        Third, Mr. McKinney helped to
determine the place of questioning; he chose to remain outside in the rain
when the authorities arrived, and he willingly sat in the sheriff's car.
Further, the FBI's purpose in seeing Mr. McKinney was merely to interview
him, not to take him into arrest.


      Similarly, "indicia of custody" generally show that Mr. McKinney was
not in custody when the FBI agent questioned him.    As mentioned above, Mr.
McKinney was not handcuffed during questioning.      In addition, he answered
questions voluntarily.   These facts mitigate against a finding of custody.
Moreover, the fact that the authorities neither mistreated Mr. McKinney,
nor




                                    -5-
dominated the conversation with him, indicates that Mr. McKinney was not
in custody.   Finally, the fact that the authorities did not arrest Mr.
McKinney corroborates the finding that he was not in custody.


     Upon consideration of the totality of the circumstances, we find that
substantial evidence and law support the finding that Mr. McKinney was not
in custody when the FBI agent questioned him.    Accordingly, the district
court's conclusion concerning custody is affirmed.


B.   Sufficiency of Evidence


     Mr. McKinney also claims that the United States failed to meet its
burden of proving that he threatened Congresswoman Lambert.    Mr. McKinney
points   out that in order to violate the law, one must communicate
threatening thoughts to others.   Mr. McKinney claims that because the jury
acquitted him of mailing a threat, the United States failed to prove that
he communicated a threat.    The United States, on the other hand, claims
that a defendant convicted by a jury on one count cannot attack that
conviction because it is inconsistent with the jury's verdict of acquittal
on another count.    The United States further claims that it presented
sufficient evidence to support Mr. McKinney's conviction.


     It is not necessary for a jury to reach consistent verdicts on two
counts of an indictment.   United States v. Powell, 469 U.S. 57, 62 (1984).
"[W]here truly inconsistent verdicts have been reached, `[t]he most that
can be said . . . is that the verdict shows that either in the acquittal
or the conviction the jury did not speak their real conclusions, but that
does not show that they were not convinced of the defendant's guilt .'"
Id. at 64-65 (quoting Dunn v. United States, 284 U.S. 390, 393 (1932)).
Indeed, a jury convinced of the defendant's guilt may decide not to convict
on all counts through mistake, lenity, or compromise.   Powell, 469 U.S. at




                                    -6-
65.   Nevertheless, the state "is precluded from appealing or otherwise
upsetting such an acquittal by the Constitution's Double Jeopardy Clause."
Id.


      Appellate review of a conviction on one count of an indictment takes
place "independent of the jury's determination that evidence on another
count was insufficient."   Id. at 67.   We will affirm the conviction if "the
evidence adduced at trial could support any rational determination of guilt
beyond a reasonable doubt."    Id.


      Upon review, we find that the evidence adduced at trial supports a
rational determination that Mr. McKinney is guilty, beyond a reasonable
doubt, of threatening to assault a member of Congress.          Mr. McKinney
admitted that he wrote several signed letters to Congresswoman Lambert;
these letters contain menacing, obscene, and anti-semitic remarks.       The
writing in the signed letters matches the writing in a very similar,
unsigned letter and its envelope.    In addition, Mr. McKinney's palm print
is on the unsigned letter.       The unsigned letter contains explicitly
threatening remarks, and it was received by Congresswoman Lambert's office.
Because this evidence supports a rational determination that Mr. McKinney
is guilty, beyond a reasonable doubt, of threatening Congresswoman Lambert,
we affirm Mr. McKinney's conviction.


C.    Sentencing Guidelines


      Mr. McKinney claims that the district court applied the wrong United
States Sentencing Guideline to his conduct.   According to Mr. McKinney, the
guideline for "Minor Assault" should apply.    The United States claims that
the applied guideline correlates with the conduct for which Mr. McKinney
was convicted.


      In "reviewing a sentence, we `shall accept the findings of fact of
the district court unless they are clearly erroneous and




                                     -7-
shall give due deference to the district court's application of the
guidelines to the facts.'"   United States v. Hill, 943 F.2d 873, 875 (8th
Cir. 1991) (quoting 18 U.S.C. § 3742(e) (1988)).


     Mr. McKinney was convicted of threatening to assault a member of
Congress, in violation of 18 U.S.C. § 115(a)(1)(B) and 18 U.S.C. §
115(b)(4).   Appendix A to the United States Sentencing Guidelines cross-
references these statutory provisions with the guideline for "Threatening
Communications," § 2A6.1.      Because the district court sentenced Mr.
McKinney pursuant to the guideline for "Threatening Communications," we
affirm Mr. McKinney's sentence.


     A true copy.


             Attest:


                  CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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