UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 97-4266

DELMER VICTOR LEONARD,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CR-95-24)

Argued: March 6, 1997

Decided: April 6, 1998

Before MOTZ, Circuit Judge, PHILLIPS, Senior Circuit Judge, and
KEELEY, United States District Judge for the
Northern District of West Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Robert Cameron Stone, Jr., Martinsburg, West Virginia,
for Appellant. Jean Barrett Hudson, Assistant United States Attorney,
Charlottesville, Virginia, for Appellee. ON BRIEF: Robert P.
Crouch, Jr., United States Attorney, Charlottesville, Virginia, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

On May 9, 1995, a federal grand jury returned a six-count indict-
ment against Delmer Leonard, charging him with violations of 18
U.S.C.A. §§ 844(d), 924(c)(1), 924(h), and 1716 (West 1984 & Supp.
1998), and 26 U.S.C.A. §§ 5822, 5841, 5861(d), 5861(f), and 5871
(West 1989), in connection with an explosive device mailed to his
former wife. Leonard moved to suppress a written confession he
made to United States postal inspectors in January 1995. The district
court denied the motion. After a competency hearing at which the dis-
trict court determined that Leonard was fit to stand trial, Leonard
entered into a plea agreement; he pled guilty to all counts except the
§ 924(c)(1) charge, which the government agreed to dismiss. After a
sentencing hearing, the district court sentenced Leonard to 216
months of imprisonment plus three years of supervised release. Leon-
ard now appeals, asserting that the district court erred by denying his
motion to suppress. Finding no reversible error, we affirm.

I.

In December 1994, Patricia Smith, Leonard's former wife, received
an explosive device disguised as a Christmas ornament. When Smith
plugged the device into an electrical socket, the device exploded and
caused burns and lacerations to her face. Almost immediately thereaf-
ter, the United States Postal Service began investigating the incident.

According to testimony presented at Leonard's suppression hear-
ing, postal inspectors contacted Leonard on two occasions. On
December 22, 1994, Inspector Leslie Lauziere and other agents vis-
ited Leonard at his trailer in West Virginia. Lauziere spoke briefly
with Leonard, and Leonard permitted the agents to search his trailer.
Subsequently, on January 7, 1995, Lauziere again went to Leonard's
trailer, this time with another postal inspector, Terry Flug. Lauziere

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and Flug discussed the investigation with Leonard for about two
hours. Leonard agreed to answer questions, never asked the inspectors
to leave, never asked for an attorney, and was not physically detained.

The inspectors asked Leonard to submit voluntarily to a polygraph
test. Leonard agreed, and followed the inspectors in his own car to a
local Econo Lodge. The inspectors escorted Leonard to a room where
still another postal inspector, polygraph examiner John Griffith,
waited with a polygraph machine. Lauziere explained to Griffith that
Leonard had some concerns about taking a polygraph, and Griffith
once again explained to Leonard that he could decline to take the
polygraph and that he could cease participation at any time.

Griffith presented Leonard with a "Warning and Waiver of Rights"
form. He advised Leonard of his Miranda rights "point by point" and
explained the waiver portion of the form, which stated:

          I am willing to discuss subjects presented and answer ques-
          tions. I do not want a lawyer at this time. I understand and
          know what I am doing. No promises or threats have been
          made to me and no pressure or coercion of any kind has
          been used against me.

At approximately 4:00 p.m., Leonard signed both the warning and
waiver portions of the form and agreed to answer questions. Leonard
did not ask to make any telephone calls. He did not ask to leave. He
did not ask to speak with an attorney. He retained his car keys, and
was not physically detained in any manner.

Lauziere left the room and Griffith administered the polygraph.
Griffith began the post-polygraph interview by asking Leonard how
he thought he did. Leonard responded, "Piss poor probably," to which
Griffith replied, "Yeah, you did." Griffith then explained to Leonard
that Leonard performed poorly on the questions relating to the explo-
sive device. When Leonard asked why, Griffith replied, "Because
you, you had something to do with it. . . . You made it. You sent it.
You put it together." Griffith continued, stating:

          the thing is this, Inspector Lauziere has got enough circum-
          stantial evidence to work up a good case, and he's going to

                    3
          do it. . . . [W]hen he puts this together and he presents it to
          a U.S. attorney for prosecution, and you get indicted and it
          goes to trial . . . it's gonna come right down on you. He told
          you . . . don't be in front of the train when it . .. takes off.
          Be on the train. You know. Be cooperative. The first thing
          any judge is going to say is Was he cooperative? . .. And
          so what I'm saying is, now do what's best for [yourself].
          And that is get this over with, behind you.

Leonard expressed concern about Griffith's comments, declaring,
"Well, there ain't no, no guarantee about it." To this statement Grif-
fith responded:

          Well there is. There is a guarantee. That's the guarantee.
          The guarantee is if you do that at this point, if you own up
          to it, and you say I made a mistake. . . . [The judge] can
          sympathize with that. Judges sit there every day and hear
          people come in and say, "I didn't do it. I didn't do it." And
          then the proof comes down and they did do it -- Bam! He
          hammers them. He hammers them and hammers them and
          hammers them.

Later, as Griffith's interview neared its end and Leonard
approached the point of confession, Leonard stated"I'll go to jail and
die." Again Griffith responded: "That's not true. That's not true at all.
. . . You could very well get probation. You know. We'll see. We'll
see." Griffith told Leonard "I want you to say you did it `cause you
did. I know you did it. Try saying you did it. I want to be able to go
to Inspector Lauziere and say `He wants to come clean.'" After that,
Leonard admitted to Griffith that he "didn't want to hurt her," but
instead meant only to "scare her." At that point, Griffith left to get
Lauziere.

Approximately three hours had elapsed when Griffith"advised
[him] that Mr. Leonard had failed the polygraph examination and was
ready to give a statement relative to this crime." Lauziere escorted
Leonard to another hotel room, where Lauziere and Flug obtained a
statement. Leonard did not ask to leave or to contact an attorney, nor
was he ever physically detained.

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Lauziere questioned Leonard regarding the bomb, and presented
Leonard with an affidavit form. Lauziere read Leonard the form's
introductory paragraph twice, which again advised Leonard of his
Miranda rights and provided that the statement was given "voluntarily
and without threat or promise." Leonard suggested that "it probably
would take him a long time to write a statement." Lauziere testified
that, based on Leonard's handling of documents while in his trailer,
it appeared that Leonard could read and write, but nonetheless Lau-
ziere offered and Leonard agreed that Lauziere would write the state-
ment for Leonard.

Lauziere went over the statement several times with Leonard "word
for word, sentence for sentence," and allowed Leonard to make
changes. Leonard initialed each change and each page, and signed the
affidavit at 8:10 p.m. Lauziere then contacted the U.S. Attorney's
office and decided to take Leonard into custody. Lauziere testified
that he saw Leonard upset and crying just after the polygraph exami-
nation, and again after the statement was written. Griffith also testi-
fied at the suppression hearing, essentially buttressing Lauziere's
testimony.

Leonard called two witnesses: Dan Seiler, a polygraph expert, who
testified that the polygraph results were inconclusive, and Dr. Leroy
Stone, a clinical psychologist, who testified that Leonard has an IQ
of 77, which puts him on the borderline of mental retardation. Dr.
Stone also stated that Leonard is overly compliant to persons in posi-
tions of authority, and that Griffith's post-polygraph discussion with
Leonard was highly persuasive to Leonard. Moreover, Dr. Stone
opined, on the basis of test results, that Leonard did not adequately
understand the Miranda warnings or the implications of any waiver
of them.

The district court ruled that Leonard's statement was voluntary and
denied his motion to suppress. In doing so, the court quickly
recounted the evidence and made several findings of fact. The court
found: (1) postal inspectors went to Leonard's trailer to conduct an
investigation and to interrogate Leonard; (2) they proposed he take a
polygraph, and he agreed to do so; (3) he followed the inspectors to
the Econo Lodge, "[b]ut certainly [he] had every opportunity to say
no;" and (4) "no promise [was] made[to Leonard] by Mr. Griffith or

                    5
anybody else. He indicated that there might be a possibility of parole
but certainly no promise . . . of leniency . . . .[T]he statements made
by Mr. Griffith may have been persuasive but [were] not coercive."

II.

A.

Initially, Leonard contends that his confession resulted from a cus-
todial interrogation in which government agents failed to properly
inform him of his Miranda rights or failed to obtain a valid waiver
of those rights. See Michigan v. Mosley, 423 U.S. 96, 99-100 (1975)
(even wholly voluntary confession cannot be admitted where there
has been a violation of the Miranda requirements for custodial inter-
rogation).

Of course, a defendant who is not in custody has no entitlement to
Miranda warnings. "An individual is `in custody' for Miranda pur-
poses when, under the totality of the circumstances, the suspect's
freedom of action is curtailed to a degree associated with formal
arrest" such that "a reasonable person in[the same] position would
have understood that he was in custody." United States v. Howard,
115 F.3d 1151, 1154 (4th Cir. 1997) (internal quotation marks omit-
ted); see United States v. Glover, 104 F.3d 1570, 1578 (10th Cir.
1997).

The district court found that the inspectors asked Leonard to take
the polygraph test, and he agreed even though "he had every opportu-
nity to say no." Leonard followed the inspectors to a hotel in his own
car. He retained his keys, the room was unlocked, he was not physi-
cally restrained in any manner, and he was told that he did not have
to take the polygraph test and that he could stop at any time. Under
Howard, this is not custody for Miranda purposes. Cf. Howard, 115
F.3d at 1154-55 (defendant driven by DEA agents to probation office
and questioned as suspect in crime was not "in custody" for Miranda
purposes where he voluntarily agreed to accompany the officers, was
not physically restrained, the officers brandished no weapons, and
there was no evidence of coercion).

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B.

Even if he was not in custody and so not entitled to Miranda warn-
ings, Leonard maintains that his confession was involuntary and so
should have been suppressed. We make a de novo review of the ulti-
mate question of voluntariness, while bound to accept the district
court's factual findings unless clearly erroneous. See United States v.
Braxton, 112 F.3d 777, 781 (4th Cir.) (en banc), cert. denied, 118 S.
Ct. 192 (1997); Glover, 104 F.3d at 1579-80.

As we recently stated in Braxton, the proper test to determine if a
statement was voluntary is whether the defendant's will was over-
borne or his capacity for self-determination critically impaired.
Braxton, 112 F.3d at 781; see United States v. Pelton, 835 F.2d 1067,
1071 (4th Cir. 1987); United States v. Wertz, 625 F.2d 1128, 1133
(4th Cir. 1980). This determination involves consideration of the
totality of the circumstances surrounding the confession. Factors to
consider in the voluntariness determination include the defendant's
age, education, level of intelligence, the setting of the interview, the
details of the interrogation, the duration of questioning, the use of
physical coercion or deprivation, the defendant's experience with the
criminal justice system, and whether the defendant has been advised
of his Miranda rights. See Arizona v. Fulminante, 499 U.S. 279, 285-
86 & n.2 (1991); Schneckloth v. Bustamonte, 412 U.S. 218, 226
(1973); Watson v. Detella, 122 F.3d 450, 453 (7th Cir. 1997);
Braxton, 112 F.3d at 781; Glover, 104 F.3d at 1579; Pelton, 835 F.2d
at 1071-72; Wertz, 625 F.2d at 1134.

Leonard contends that the nature of Griffith's questioning, com-
bined with the setting and duration of the interrogation and Leonard's
low education level and borderline intelligence, rendered the confes-
sion involuntary. In particular, he points to Griffith's repeated use of
the word "guarantee," his repeated suggestion that the court would
likely "hammer" Leonard if Leonard did not cooperate, and his sug-
gestion that Leonard might receive probation. Although several of
Griffith's statements cause us great concern -- especially statements
regarding the possibility of probation when probation clearly would
not follow and remarks such as "[t]ry saying you did it" -- we are not
convinced, under the totality of the circumstances as recently inter-

                    7
preted in Braxton, that any coercion existed or that Leonard's will
was overborne.

The district court explicitly found that the postal inspectors made
no promises of leniency or parole to Leonard. Our review of the
record does not compel a contrary finding. Inspector Griffith used the
word "guarantee" in relation to his representations that a court would
look favorably upon a decision by Leonard to cooperate, and would
be less likely to "hammer" Leonard than if he forced a drawn out
investigation. That a "suspect's cooperation, by lightening the govern-
ment's burdens of investigation and prosecution, is looked upon
favorably by prosecutors and judges" is "very close to being a tru-
ism." United States v. Baldwin, 60 F.3d 363, 365-66 (7th Cir. 1995),
vacated on other grounds, 116 S. Ct. 1873 (1996), on remand, No.
94-1025, 1997 WL 471328 (7th Cir. Aug. 14, 1997), cert. denied, 118
S. Ct. 390 (1997); see also Glover, 104 F.3d at 1582 (discussions
about cooperation and promises to make cooperation known to the
prosecutor and court do not render a confession involuntary); United
States v. Bautista-Avila, 6 F.3d 1360, 1364 (9th Cir. 1993) (same);
Pelton, 835 F.2d at 1073 (same); United States v. Shears, 762 F.2d
397, 401-02 (4th Cir. 1985) (same). Although government agents
should avoid using the word "guarantee" during an interrogation, its
use in these circumstances does not amount to a coercive promise of
leniency.

Moreover, Inspector Griffith clearly did not promise probation to
Leonard. Rather, he stated, "You may very well get probation. . . .
We'll see. We'll see." (Emphasis added.) This statement does not
amount to a promise. Examination of the full context of the statement
confirms this conclusion. As Griffith testified, he made this statement
to Leonard after Leonard expressed concern that"[e]verything's
going to end" and he would just go to jail and die. In Braxton, we reit-
erated that courts cannot "focus on a single factor," a single circum-
stance, or single statement in determining voluntariness. Braxton, 112
F.3d at 785. When properly viewed in context, Griffith's statement
was no more than an attempt at emotional reassurance.

Leonard's borderline mental capacity and low level of education
also concern us, but do not compel suppression of the confession. A
defendant's personal characteristics are important to the voluntariness

                    8
determination because they reveal his susceptibility to subtle forms of
coercion. See United States v. Huynh, 60 F.3d 1386, 1388 (9th Cir.
1995); Henry v. Dees, 658 F.2d 406, 409 (5th Cir. 1981). Further-
more, in circumstances where agents know or should know a defen-
dant has a mental deficiency, they must employ particular care in
interrogating the defendant. See United States v. Hall, 93 F.3d 1337,
1346 (7th Cir. 1996); Henry, 658 F.2d at 411. A defendant's individ-
ual characteristics, however, are insufficient by themselves to render
a confession involuntary absent other circumstances that demonstrate
some form of official coercion. See Colorado v. Connelly, 479 U.S.
157, 167 (1986); Watson, 122 F.3d at 453; United States v. Murphy,
107 F.3d 1199, 1206 (6th Cir. 1997); United States v. Rohrbach, 813
F.2d 142, 144 (8th Cir. 1987).

The totality of the circumstances surrounding Leonard's confession
did not render that confession involuntary. The interrogation occurred
in a hotel room to which Leonard freely went and from which he was
free to leave, and the interrogation only lasted a few hours. Griffith
explained Leonard's Miranda rights to him several times, and Leon-
ard signed a waiver of those rights. Leonard later signed an affidavit
that again acknowledged his Miranda rights and bore language
declaring that he was not coerced or promised anything. At the time
of the interrogation, Leonard had attained the age of 48 and had past
experience with the criminal justice system. Leonard was neither
physically restrained nor deprived in any manner. Leonard's low level
of education and intelligence raise concerns, but, under the totality of
the circumstances, we cannot conclude that his confession was invol-
untary. See Braxton, 112 F.3d at 784-85. Cf. Murphy, 107 F.3d at
1205 (placement of defendant in police cruiser did not render state-
ment involuntary even in light of defendant's limited mental capac-
ity); Correll v. Thompson, 63 F.3d 1279, 1290-91 (4th Cir. 1995)
(confession voluntary when, although defendant had IQ of 68, he had
received Miranda warnings in the past, was in custody only about
seven hours, there was no physical coercion or deprivation, and he
was not induced by promises); Pelton, 835 F.2d at 1073 (setting of
interrogation did not support finding of coercion where held in public
hotel and defendant free to move about or leave).

                    9
III.

For the foregoing reasons, the district court's denial of Leonard's
motion to suppress is hereby

AFFIRMED.

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