
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 97-1085                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  EDWARD J. SANTOS,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                       [Hon. Mary M. Lisi, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                                Boudin, Circuit Judge,                                        _____________                            and Woodlock,* District Judge.                                           ______________                                 ____________________            James T. McCormick for appellant.            __________________            Margaret E.  Curran, Assistant United  States Attorney,  with whom            ___________________        Sheldon  Whitehouse,  United  States  Attorney,  and  Edwin  J.  Gale,        ___________________                                   _______________        Assistant  United  States  Attorney,  were  on  brief  for the  United        States.                                 ____________________                                   December 8, 1997                                 ____________________                                    ____________________        *Of the District of Massachusetts, sitting by designation.                 BOUDIN,  Circuit Judge.   On this appeal,  Edward Santos                          _____________            seeks review of  his conviction and sentence  for threatening            to kill President Clinton.  At the time of the threat, Santos            was an  inmate at  the Adult  Correctional Institution  ("the            ACI") in  Cranston, Rhode  Island.  Santos  had a  history of            psychiatric  disease,  including   a  diagnosis  of   chronic            paranoid  schizophrenia.  The pertinent events can be quickly            summarized.                 On August 17, 1994, the White House mail room received a            letter containing a threat to assassinate  President Clinton.            The  letter, which  had been  mailed  from the  ACI, read  in            relevant part:  "[Y]ou have upset me to the point that I feel            I should  assassinate you  which would enable  me to  go down            with the history books and  if the Secret Service gets in  my            way  they will  get it  too."  The  letter was  signed "Barry            Shea" (who is the head of the ACI classification board).  The            Secret Service began an investigation.                 After two inmates  identified Santos as the  sender, and            in light of Santos's previous mailing of a threatening letter            to   President  Reagan   in  1986,   Secret   Service  agents            interrogated  Santos at  the prison on  August 26,  1994, and            January 12,  1995.  At  both interviews, Santos  admitted his            involvement with the letter.   The letter had been written by            another inmate, Raymond Francis; but Francis said, and Santos            admitted, that Santos  had given Francis a text  to copy over                                         -2-                                         -2-            and  that Santos had  mailed the letter.   Apparently, Santos            feared that  his own handwriting  would be recognized  by the            Secret Service due to the 1986 letter.                  Santos  was charged  with making  a  threat against  the            President, in violation of 18 U.S.C.   871.  Santos underwent            a  psychiatric examination and  was found competent  to stand            trial.  The  prosecution witnesses at trial  included Francis            and the Secret Service agent who conducted the interview with            Santos.    Santos  offered an  insanity  defense;  his expert            testified  that Santos suffered from a chronic mental disease            that  prevented him from appreciating the wrongfulness of his            actions.   The  prosecution experts  opined  that Santos  was            lying about his symptoms.                 The  jury  convicted  Santos,  and  the  district  judge            sentenced him to 57  months in prison.  The  judge ruled that            threatening the President was a "crime of violence" under the            career offender provisions of the Sentencing  Guidelines, see                                                                      ___            U.S.S.G.     4B1.1, 4B1.2(1)(i), and  sentenced Santos within            the resulting guideline  range.  The judge refused  to depart            downward based  on mental  condition.   Santos has  appealed,            raising a series of issues.                 1.    In   the  district  court,  Santos   argued  at  a            suppression hearing that his confessions were invalid because            his  will  was overborne  by  the combination  of  his mental            disease and the conduct of the Secret Service agents.  Santos                                         -3-                                         -3-            alleged that at the first interview, one of the agents yelled            at  him  and  called him  a  liar;  and he  argued  that this            conduct, in  concert with his fragile mental  state (of which            the agent  was aware), rendered  his confession  involuntary.            The second  interview, Santos  asserted, was  tainted by  the            first.                 At  the hearing  the agent  testified  that the  initial            interview   had  been  conducted  in  an  interview  room  in            midmorning and Santos was  not in handcuffs; that  Santos had            been advised  of his rights  to counsel and to  remain silent            but had invoked neither; that  the agent had yelled at Santos            and  had called him  a liar when  Santos had at  first denied            involvement; that Santos was nervous  but appeared to have no            difficulty in understanding questions and gave understandable            answers; and that the interview  from start to finish took no            more than 90 minutes.                 The district  court  found that  Santos had  voluntarily            waived his  rights to counsel  and to remain silent  and that            his  statements were voluntary rather than coerced.  Findings            of raw fact are reviewed for clear error.  See  United States                                                       ___  _____________            v. Procopio, 88  F.3d 21, 27 (1st Cir.), cert. denied, 117 S.               ________                              ____________            Ct. 620  (1996) and 117 S. Ct. 1008  (1997).  We will assume,                            ___            favorably  to  Santos,  that the  ultimate  conclusion  as to            voluntariness  is open to de  novo review, with some possible                                      ________                                         -4-                                         -4-            allowance for  the district  court's superior  vantage.   See                                                                      ___            Ornelas v. United States, 116 S. Ct. 1657, 1663 (1996).            _______    _____________                 We find  no reason to disagree with  the district judge.            Santos was not  irrational or incapable of  understanding his            rights.   While his mental history  is certainly pertinent to            the  voluntariness of  his statements,  the  precedents still            require some  degree of  coercion or  trickery by  government            agents to  render a  statement involuntary,  see Colorado  v.                                                         ___ ________            Connelly, 479 U.S. 157, 167 (1986), and yelling once or twice            ________            does  not  reach  this  level.    The  scene  may  make  some            squeamish, but that  is not the constitutional  standard, and            Santos's statements were properly admitted.                 In  a supplemental  brief, Santos  raises  another issue            related to  the voluntariness of  his statements.   Citing 18            U.S.C.    3501(a),  Santos argues  that  the judge  committed            plain  error when she  failed to give  an instruction telling            the jury  that it could  choose to  give less  weight to  his            confessions because  of the surrounding  circumstances.   The            section reads, in pertinent part:                 If the trial judge  determines that the  confession                 was  voluntarily  made  it  shall  be  admitted  in                 evidence  and the trial judge shall permit the jury                 to  hear   relevant  evidence  on   the  issue   of                 voluntariness and  shall instruct the jury  to give                                    _____                 such weight to the confession as  the jury feels it                 deserves under all the circumstances.            Id.  (emphasis   added).     Neither   side  requested   this            ___            instruction.                                         -5-                                         -5-                 Section 3501(a) obviously assumes that the defendant has            sought  to make  an issue  of voluntariness  before the  jury            after being rebuffed  by the trial judge.   See United States                                                        ___ _____________            v. Fera, 616 F.2d 590, 594 (1st Cir.), cert. denied, 446 U.S.               ____                                ____________            969 (1980).  It appears that Santos did follow this course in            the  present case, and he  would certainly have been entitled            to the  instruction if  he had  sought it.   We will  assume,            arguendo, that because of the "shall" language in the statute            ________            the district judge "erred" in failing to give the instruction            even without being asked, without resolving  the government's            claim  that the  evidence here  did not  create a  legitimate            issue of voluntariness.                 But under United States v. Olano, 507 U.S. 725, 734, 741                           _____________    _____            (1993), an error  that occurred without objection  at trial--            however flagrant--does not warrant  reversal unless it likely            affected the  outcome.   There are a  few exceptions  to this            requirement for so-called structural errors so fundamental as            to undermine the  integrity of the trial process,  see id. at                                                               _______            735 (citing Arizona v. Fulminante, 499 U.S. 279, 310 (1991)),                        _______    __________            but the present "error" is not within miles of that very rare            category.   It would  be hard, indeed,  to conduct  trials if            trial  errors could  be ignored  by counsel  and then  freely            raised on appeal.                 Here, it  is not likely  that the jury would  have found            the  confessions involuntary  or unworthy  of  belief if  the                                         -6-                                         -6-            instruction  had  been given.    The  trial  judge found  the            confessions to  be voluntary  and we have  agreed, so  we can            hardly  assume  that  the jury  would  probably  have decided            otherwise.  As for credibility, the surrounding circumstances            might, as  a common-sense  matter, have  affected the  jury's            judgment about the weight to be given to Santos's statements,            but evidence of those circumstances was admitted in evidence.                 2.  Santos  disputes several of the  evidentiary rulings            at trial.   First, he says that  it was error to  exclude the            fact  that in 1986  the then-U.S. Attorney  did not prosecute            Santos  when Santos wrote  a threatening letter  to President            Reagan;  the U.S. Attorney had cited "obvious mental illness"            as  one  reason  for  declining  prosecution.    Trial  court            judgments such as this one, weighing the extent  of relevance            and then balancing relevance  against prejudice, are reviewed            for abuse of discretion.  See United  States v. Rivera-Gomez,                                      ___ ______________    ____________            67 F.3d 993, 997 (1st Cir. 1995).                 Even assuming no  hearsay objection, a U.S.  Attorney is            not an expert  on mental condition.  Thus we  doubt that much            weight could be  given to such  a lay assessment, even  if we            ignored  the fact  that the  assessment  related to  Santos's            state in 1986 and the pertinent issue at trial related to his            state in 1994.   The potential for prejudice and confusion is            also apparent.  The decision  to exclude the evidence was not            an abuse of discretion, especially in a trial where there was                                         -7-                                         -7-            extensive  expert testimony  directed  to  the crucial  issue            whether Santos was sane in 1994.                 Second,  Santos  asserts  that  the  judge  should  have            admitted  proffered evidence that, in 1989, other inmates had            forged Santos's signature  on a letter  threatening President            Bush.    The  government  now  says  that  the  incident  was            irrelevant (at  the  time it  argued  that the  incident  was            "remote").  We need not pursue the issue of relevance because            we  agree  with the  government's alternative  argument, made            both at  trial and now,  that the agent questioned  about the            incident had only hearsay knowledge of the earlier threat.                 Third,  Santos  says  that  it  was  error  to  allow  a            psychologist to testify that he had found Santos fit to stand            trial  because, Santos claims, the jury could mistake fitness            to  stand trial  for  an  opinion that  Santos  was sane  for            purposes  of  the   insanity  defense.    The   standards  of            competency and  insanity  are admittedly  different,  and  by            statute a finding  by the court of competency  to stand trial            is  not to "prejudice" an insanity defense or be "admissible"            at trial.  18 U.S.C.   4241(f).                 Here,  of course, the court's competency finding was not            offered  or otherwise  used  against Santos.    At best,  the            argument is  that the  underlying policy  of the  statute--at            least  partly  to  avoid  confusion--should  equally bar  the            expert on insanity from referring to competency.  We need not                                         -8-                                         -8-            resolve the issue:   there was no  objection at trial to  the            comment  at  issue;  and,  as it  was  dwarfed  by  extensive            testimony on  the insanity  issue  by both  sides, the  Olano                                                                    _____            prejudice standard cannot be satisfied.                  Fourth,   the    prosecution's   psychiatric    witness,            responding  to a  question as  to which  facts helped  him in            evaluating Santos's mental condition, testified that Santos's            efforts  to "throw  people off  his trail" indicated  that he            "knew what he was doing was wrong."  Santos argues  that this            testimony amounted  to an  "opinion . .  . as to  whether the            defendant did or  did not have the mental  state or condition            constituting  an element  of the crime  charged or  a defense            thereto," in violation of Fed. R. Evid. 704(b).                 Rule  704(b) has proved troublesome to administer and is            not universally popular, because it complicates the provision            of expert testimony and involves very difficult line drawing.            See 2  S. Saltzburg  & M. Martin,  Federal Rules  of Evidence            ___                                __________________________            Manual  101-02  (5th ed.  1990);  see also  United  States v.            ______                            ________  ______________            Brown, 32  F.3d 236, 238  (7th Cir.  1994).  Whether  much is            _____            changed by stopping the expert's  testimony just short of the            ultimate issue is open to doubt.  Still, Congress is entitled            to an honest effort by judges to comply with its rule.                 Here, however, the statement in dispute was not objected            to at trial.   The  main force  of the testimony  lay in  the            ascription of conscious trickery to the defendant, not in the                                         -9-                                         -9-            arguably  forbidden   explicit  reference  to   knowledge  of            wrongdoing.  Olano's  prejudice showing cannot be  met.  This                         _____            is, therefore,  not an occasion for seeking  to fine-tune our            interpretation of Rule 704(b), a daunting task under the best            of circumstances.                         3.  Santos  claims that he was over-medicated during the            trial  and unable  to assist  in his  defense.   The district            judge held a post-trial hearing  on the claim, at which there            was  testimony  from both  sides.   Despite testimony  from a            psychiatrist,  Santos's father, and  Santos's attorney to the            effect that Santos  was unresponsive, the judge  credited the            prosecution expert, who  testified that Santos's  description            of symptoms  was more  consistent with  an effort  to deceive            than with actual indicators of incompetence.                 We uphold a district judge's determination of competency            after a hearing unless clearly erroneous.   See United States                                                        ___ _____________            v. Lebron,  76 F.3d 29,  32 (1st Cir.), cert.  denied, 116 S.            _________                               _____________            Ct. 2537 (1996).  The  judge heard testimony from a competent            expert  that Santos was  likely pretending and  could, in any            event, have assisted in his defense.  There is no clear error            in the  judge's determination  that Santos  was competent  to            stand trial.                 Santos also  sought a new  trial on the ground  that the            verdict  was against  the weight  of the  evidence.   We have            examined the evidence offered by both sides.  It is enough to                                         -10-                                         -10-            say that the  government offered expert evidence  of Santos's            sanity  which,  although  countered  by   a  defense  expert,            remained substantial.  The denial of the new trial motion was            in no sense an abuse of discretion.                      4.  Finally, Santos attacks his sentence on  two fronts.            First, he argues that his act of sending a threatening letter            to  the  President  should  not  be  considered a  "crime  of            violence" for the purposes of U.S.S.G.   4B1.1.  This section            increases  offense  level and  criminal history  category for            "career  offenders,"  where  the  present  crime  is  one  of            violence  or a  controlled substance  offense  and where  the            defendant has had  two or more prior convictions  for such an            offense.                 Santos says that  his present crime was not  a "crime of            violence."   As a matter  of bare language, one  could easily            argue  that  this  quoted  phrase  does  not embrace  a  mere            criminal threat of  violence.  But unfortunately  for Santos,                     ______            U.S.S.G.    4B1.2(a)(1) expressly defines  the quoted phrase,            for  purposes  of  section  4B1.1,  to  include  any  offense            punishable by  more than  a  year in  prison that  has as  an            element "the .  . . threatened use of  physical force against            the person of another . . . ."                 The offense statute in this case, 18 U.S.C.   871, makes            it criminal to send any  letter threatening "to take the life            of, to kidnap,  or to inflict bodily harm"  on the President.                                         -11-                                         -11-            The indictment expressly charged  Santos with threatening the            life of  and bodily  harm to the  President.   Thus, Santos's            offense had  as an  element  the threatened  use of  physical            force against another person.                 Santos is therefore probably mistaken in invoking United                                                                   ______            States v. Leavitt,  925 F.2d 516 (1st Cir.  1991), where this            ______    _______            court  said  that  the  defendant's  own  conduct  should  be            examined where  the statute  embraces both  violent and  non-            violent conduct.   But even  if we looked solely  to Santos's            conduct, a  threat  to assassinate  does  involve  threatened            force against another.  It is of no help that he may not have            intended  to carry  out  his  threat, and  in  the short  run            certainly could not in  fact have done so.  See United States                                                        ___ _____________            v. Poff, 926 F.2d 588, 590 (7th Cir.), cert. denied, 502 U.S.               ____                                ____________            827 (1991).                 Santos's  second  challenge  to  his   sentence  is  his            contention  that  his  mental  condition  merited a  downward            departure.  His theory is  that his severe mental illness was            a mitigating circumstance not adequately accounted for in the            guidelines,  U.S.S.G.    5K2.0, or  reflected  reduced mental            capacity  for which departure may be permitted under U.S.S.G.               5K2.13.   However,  a refusal  to  depart is  unreviewable            unless the district court based it  on an error of law.   See                                                                      ___            United States v.  Clase-Espinal, 115 F.3d 1054, 1056 n.3 (1st            _____________     _____________                                         -12-                                         -12-            Cir. 1997),  cert. denied,  66 U.S.L.W. 3323  (Nov. 3,  1997)                         ____________            (No. 97-5881).                 There is no such error here.  The district court did not            refuse to  depart because of  a ruling of  law that could  be            challenged on  appeal as mistaken.   Instead,  it found  that            Santos's  mental illness  did not  diminish  his capacity  to            understand what  he was  doing nor did  it contribute  to the            carrying out of the offense.   We have no authority to review            this determination.  See  United States v. Tardiff,  969 F.2d                                 ___  _____________    _______            1283, 1290 (1st Cir. 1992).                 Affirmed.                 ________                                         -13-                                         -13-
