                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          APR 10 2003
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 02-1347
v.                                                 (District of Colorado)
                                                  (D.C. No. 00-CR-260-N)
LAWRENCE ERNEST STROUD,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
I.    INTRODUCTION

      Defendant Lawrence Stroud (“Stroud”) was convicted by a jury of assault

within the maritime and territorial jurisdiction of the United States, in violation of

18 U.S.C. § 113(a)(6). The district court sentenced Stroud to 96 months’

imprisonment and three years of supervised release. Stroud argues on appeal that

the district court erred in denying his motion to suppress statements made to the

Federal Bureau of Investigation (“FBI”) during its inquiry into the assault.

Stroud also contends that the district court erred in allowing the government to

impeach a defense witness with the witness’ mental health history. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms. The statement

Stroud challenges as involuntary was made prior to any allegedly misleading

comment by FBI investigators concerning the sentencing guidelines. In addition,

even if the district court erred in admitting impeachment testimony concerning the

mental health history of a witness, the error was harmless.

II.   BACKGROUND

      Stroud was an inmate at the Federal Correctional Institution (“FCI”) in

Englewood, Colorado. On May 4, 2000, Stroud got into an argument with his

cellmate, Marlo Pittman (“Pittman”), over Pittman smoking a cigar in their cell.

Stroud testified that when he asked Pittman and two other inmates to “take the




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cigar elsewhere,” Pittman and the two inmates lifted their shirts so that Stroud

could see the homemade knives or “shanks” placed in their waistbands.

      Stroud testified that early the next morning, he heated water in the

microwave in order to make coffee. He stated that upon returning to his cell,

Pittman confronted him with a knife and made threatening statements. In

response, Stroud threw the cup of hot water at Pittman.

      In contrast, Pittman testified that he was sleeping at the time of the incident

and did not confront Stroud. He stated that he woke up in pain with Stroud

swinging at him. Stroud then chased Pittman to the bathroom area. Pittman

stated that Stroud continued to swing at him and landed a blow just before

officers restrained Stroud. Pittman testified that he returned to his cell and,

shortly thereafter, an officer noticed that he had been burned. Pittman was treated

by a physician’s assistant at FCI and was then transferred to a hospital for

medical treatment. Pittman suffered partial thickness burns on the right side of

his face, his shoulders, the right side of his neck, and his left arm.

      During an investigation of the incident, two FBI agents interviewed Stroud

in a large conference room located in a facility at the FCI separate from where

Stroud was housed. Agent James Berry (“Agent Berry”) had Stroud read aloud

from the Miranda rights advisement form. Stroud refused to sign the form but

agreed to talk with the agents and stated that he did not require an attorney.


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During the interview, Stroud explained what had taken place on May 4, 2000.

Specifically, as Agent Berry’s report noted:

             Stroud stated that he felt scared and threatened
             after the confrontation with Pittman, [and the
             other two inmates]. He began thinking of ways to
             get out of the situation, and felt that some sort of
             retaliation against Pittman would be necessary;
             thereby preventing Pittman from injuring him.
             Stroud advised that if he voluntarily went to the
             Segregated Housing Unit (SHU) he would be
             considered a “snitch.” Stroud stated that the
             retaliation “Had to be bad enough so I or the other
             person never hit the compound.” In addition,
             Stroud stated “I had to have a way out without
             killing somebody,” and “Could put dirt on myself
             and get out unscathed.”

      After describing the events that occurred on the evening before the early

morning incident, Stroud declined to further discuss the matter. At that point,

Agent Berry stated that acceptance of responsibility could potentially benefit

Stroud at sentencing. Agent Berry mentioned the possible reduction in order to

obtain specific details concerning Pittman’s injuries. Stroud refused to provide

further details about the incident, except to mention that he intended to hit

Pittman in front of officers so that he could be placed in the Segregated Housing

Unit (“SHU”).

      On June 21, 2000, Stroud was indicted on one count of assault within the

maritime and territorial jurisdiction of the United States. Prior to trial, Stroud

filed a motion to suppress the statements made to FBI agents during the assault

                                          -4-
investigation on the basis that his statements were not voluntary. In support, he

claims he did not sign the Miranda rights advisement form and the interrogation

atmosphere was coercive. The district court denied Stroud’s motion to suppress.

The court found Stroud’s statements to be mostly exculpatory and noted that

Stroud was not admitting to causing or having knowledge about Pittman’s

injuries. The court also found Agent Berry’s statements to Stroud concerning the

acceptance of responsibility sentencing adjustment were misleading. The court,

however, determined that Stroud did not “give in and tell the agent the whole

story.” The court concluded that Stroud was given the Miranda warning and that

his statements were voluntary.

      On February 11, 2002, Stroud was tried before a jury. At trial, Stroud

called Samuel Robinson (“Robinson”), a fellow inmate in the SHU, as a defense

witness. During cross-examination, the government asked whether Robinson had

past mental problems. Stroud objected and noted that “[t]here ha[d] been no

suggestion [Robinson was] not competent to testify.” The district court overruled

Stroud’s objection. Robinson then testified about his prior hospitalizations for

depression and his current and past medications for manic depression and

depression. Robinson also stated that an evaluation revealed that he did not

suffer from diminished capacity.




                                         -5-
       The jury found Stroud guilty on the assault charge. The district court

sentenced him to 96 months’ imprisonment with three years of supervised release.

III.   DISCUSSION

       A.    Voluntariness of Statements

       Stroud alleges that the district court erred in denying his motion to suppress

the statements made to the FBI because such statements were involuntarily made.

This court reviews the voluntariness of incriminating statements de novo. United

States v. Short, 947 F.2d 1445, 1449 (10th Cir. 1991). Underlying factual

findings by the district court, however, are subject to review under the clearly

erroneous standard. United States v. Lugo, 170 F.3d 996, 1003 (10th Cir. 1999).

In an appeal of the district court’s denial of the defendant’s motion to suppress,

this court reviews the evidence in the light most favorable to the government.

Short, 947 F.2d at 1449.

       To determine whether the defendant’s statements were voluntarily made,

this court must “examine the entire record and make an independent determination

of the ultimate issue of voluntariness.” Lugo, 170 F.3d at 1004. Voluntariness is

determined from the totality of the circumstances. Clanton v. Cooper, 129 F.3d

1147, 1158 (10th Cir. 1997). This court examines several factors, including:

             (1) the defendant’s age, intelligence, and education;
             (2) the length of the detention and interrogation; (3)
             the length and nature of the questioning; (4) whether
             the defendant was advised of his constitutional

                                       -6-
             rights; and (5) whether the defendant was subjected
             to or threatened with any physical punishment.

Lugo, 170 F.3d at 1004. “No single factor is determinative.” Id.

      Upon reviewing the record and giving the appropriate deference to the

district court’s factual findings, this court concludes that Stroud’s statements were

voluntary. At the time of the interview, Stroud was not “unusually susceptible to

coercion” because of his age, intelligence, or education. Id. In fact, Stroud was

over thirty years old, had received his GED, and had prior experience with the

criminal justice system. In addition, the interview took place at the FCI where

Stroud was serving a separate term of imprisonment. Although he was

handcuffed and shackled during the interview, Stroud was placed in the handcuffs

and shackles in order to transport him to a more accommodating interview room

within the institution. The interview was short in duration, lasting no more than

45 minutes. Also, Stroud concedes on appeal that he was properly advised of his

Miranda rights during the interview. Moreover, Stroud’s refusal to sign the

waiver form while orally agreeing to speak with the agents in the absence of an

attorney does not weaken the Miranda advisement. See id. at 1004-05 (noting

that a defendant’s waiver of Miranda rights is not invalidated because the waiver

is oral rather than written). Finally, Stroud was not subjected to physical

punishment during the interview.



                                         -7-
      Stroud, however, argues that the statements obtained during the interview

were the result of coercion or deception because the interviewing FBI agent

misled him about the availability of the acceptance of responsibility sentence

reduction. “Incriminating statements obtained by government acts, threats, or

promises that permit the defendant’s will to be overborne are coerced confessions

running afoul of the Fifth Amendment and are inadmissible at trial as evidence of

guilt.” Short, 947 F.2d at 1449. Specifically, a promise of leniency made in

exchange for an inculpatory statement is a “product of inducement, and thus not

an act of free will.” Griffin v. Strong, 983 F.2d 1540, 1543 (10th Cir. 1993)

(quotation omitted).

      The district court determined that the interviewing FBI agent’s comments

concerning the acceptance of responsibility and implication that the defendant

would receive the reduction in exchange for speaking was “a misleading thing for

the agent to do.” The district court also noted that, despite the agent’s error, the

defendant refrained from speaking about the assault.

      Similarly, this court concludes that Stroud was not subject to coercion

because the statements that he challenges were made prior to any reference to the

acceptance of responsibility reduction. See United States v. Glover, 104 F.3d

1570, 1580 (10th Cir. 1997) (concluding in part that because the government’s

promise of leniency occurred after the interview, the defendant’s will was not


                                          -8-
overborne and her confession was voluntary). Although the agent implied that

Stroud’s sentence could be impacted by explaining what happened to Pittman on

the morning of the assault, Stroud neither discussed the assault nor provided any

details about the events that unfolded that morning. Thus, there was no exchange

of a promise of leniency for Stroud’s incriminating statements; he was not

induced to speak. Moreover, the jury was instructed that they could disregard any

statement that was not knowingly made. Because the statements were voluntary

and were not coerced, 1 the district court did not err in denying Stroud’s motion to

suppress.

      B.     Impeachment Testimony

      Stroud contends that the district court abused its discretion by permitting

the government to inquire into the mental health history of Robinson on cross-

examination. This court reviews the district court’s determination to permit the

impeachment of a witness based upon his mental health history for abuse of

discretion. See United States v. Butt, 955 F.2d 77, 84 (1st Cir. 1992). “An

evidentiary ruling will be overturned on appeal only if the abuse of discretion

suggests an arbitrary, capricious, whimsical, or manifestly unreasonable

judgment.” United States v. Hinkle, 37 F.3d 576, 579 (10th Cir. 1994)


      1
       Because we conclude that Stroud’s statements to the FBI were voluntarily
made and not coerced, it is not necessary for this court to address whether the
statements were exculpatory or inculpatory.

                                         -9-
(quotations omitted). Unless Stroud’s substantial rights were affected, however,

the district court’s decision to admit the impeachment evidence was harmless.

United States v. Charley, 189 F.3d 1251, 1270 (10th Cir. 1999). An error

affecting the substantial rights of a defendant is one that has a "substantial

influence on the outcome or which leaves one in grave doubt as to whether it had

such effect." Id. (quotations omitted).

      Stroud argues that there was no evidence suggesting Robinson’s mental

problems affected his ability to perceive or recall events or to testify accurately.

He also asserts that questions concerning Robinson’s mental condition were not

relevant to his credibility. After review of the record, this court concludes that

the district court’s admission of Robinson’s impeachment testimony did not

substantially influence the outcome or leave this court in grave doubt that the

jury’s verdict would have differed had the district court precluded the government

from questioning Robinson about his mental health history. Although Robinson

was asked about his current and past medications and prior hospitalizations, he

also explained on both cross-examination and redirect examination that his mental

condition did not affect his ability to perceive events and that a formal evaluation

acknowledged that he did not suffer from a diminished capacity. Furthermore,

there was other evidence which made the attempted impeachment less likely to

have had a substantial influence on the jury verdict, namely that Stroud admitted


                                          -10-
to throwing the hot water at Pittman, that no weapon was discovered after the

incident took place, and that there was corroborating testimony from the treating

physician that Pittman was laying down when the water was thrown on him.

Moreover, the jury was instructed that they were “the sole judges of the

believability of the witnesses and the weight their testimony deserves” and thus

could have disregarded the impeachment testimony. See United States v. Moore,

923 F.2d 910, 913 (1st Cir. 1991) (noting that the question of whether mental

health interferes with a witness’ ability to perceive or recall events or to testify

accurately is within the province of the jury); see also Fed. R. Evid. 601 advisory

committee’s note (stating that mental incapacity goes to the weight and credibility

of the witness).

      In sum, this court need not decide whether the district court abused its

discretion in allowing the government to inquire about Robinson’s mental health

history because any error was harmless.

IV.   CONCLUSION

      Based upon the foregoing reasons, this court AFFIRMS Stroud’s

conviction.

                                         ENTERED FOR THE COURT



                                         Michael R. Murphy
                                         Circuit Judge

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