UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 93-4022

__________________

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

GORDON LYNN SMITH,

Defendant-Appellee.

______________________________________________

Appeal from the United States District Court for the

Eastern District of Texas

______________________________________________

(November 10, 1993)

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 thenPresident Bush, in violation of 18 U.S.C. § 871. The district

court determined that the substan tive 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 determine1 At a plea hearing held on Smith's attempted plea of guilty

to Count One, Holliman testified:

"I did not advise him his rights per Miranda fully. . .

2 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,

J oe 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 qu estion Smith about his feelings toward the President, but

instead foc used 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

i nterviewed Smith in Collins' office. Holliman's intent in

questioni ng 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

, 86 S.Ct. 1602 (1966), prior to this intervie w. 1 During. He was told the interview had to be entirely

voluntary on his part. He was free to stop at any time

and he could leave at any time there. I did not tell

him the statements about entitlement [to be represented

by counsel] to this specific reason. I didn't tell him

about this. I was not there to question him about the

statement on the 23rd. I was there to question him

about his feelings towards the President and the

statements he was making there. I never specifically

asked him if he did or did not make the statement on

the 23rd."

2 Smith also made threats against President Bush to the prison

guard who conducted him from his cell to the warden's office, but

no charges arose from these statements. The guard did not

interrogate Smith.

3 According to counsel for the government at oral argument,

the inmate to whom the threats were expressed may now be willing

to cooperate with the government in its attempts to prosecute

Smith on Count One, the October 23 threat.

3 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 vio lation 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 Oc tober 25 in the presence of

Holliman and Collins.

Smith attempted to plead guilty to Count One, but the district

court would not accep t his plea because of the lack of evidence

supporting that count. The correctional officer who overheard the

O ctober 23 threat had died in a car accident some tim e 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 made4 Holliman told Smith that he was not under arrest, that the

interview was voluntary, and that he did not have to answer any

questions. Collins informed Smith that he was free to leave the

office at any time. However, neither Holliman nor Collins told

him that he had the right to have a lawyer present or that

anything he said could be used against him in a court of law.

The decision not to give Smith his full Miranda warnings was

deliberate; Holliman wanted to ensure that he had the information

necessary to protect the President.

5 We note, however, that the undisputed evidence is that at

the October 25 interview Smith was not asked about the October 23

threat; nor is there any evidence that he discussed the October

23 threat at the meeting with Holliman and Collins. Holliman and

Collins and the guard who took Smith to the October 25 interview

were the only witnesses at the suppression hearing.

4 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

a dmittedly 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 s uppress 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." 55

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 di strict 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 ." U nited States v. Conley

,

779 F.2d 970, 9 73 (4th Cir. 1985), c ert. denied

, 107 S.Ct. 114

(1986). See also United States v. Willoughby , 860 F.2d 15, 23-24

(2d Cir. 1988), cert. denied

, 109 S.Ct. 846 (1989); Flittie v.

Solem

, 751 F.2d 967, 974-975 (8th Cir. 1985), cert. denied

, 106

S.Ct. 1223 (1986). While a prison setting may increase the

likelihood that an inmate is in "cu stody" for M iranda 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 the6 "Committing a crime is far different from making an

inculpatory statement, and the treatment we afford the

two events differs accordingly. An inculpatory

statement usually relates to a previously committed

illegal act; there is nothing unlawful about the

statement itself. A crime, on the other hand, whether

committed by word or deed is by definition an act that

violates the law. We exclude inculpatory evidence when

it is obtained as a result of an unlawful search or

seizure. We have never, however, applied the

exclusionary rule as a bar to the prosecution of a

crime." Mitchell , 812 F.2d at 1253.

6 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 M iranda

warnings, because the threat constituted a new crime rather than

evidence of a prior offense. U nited 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"). S ee

also United States v. Garcia-Jor dan , 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 t he exclusionary rule

should be extended, in some circumstances, to bar prosecution of

the crime itself). 6 On remand, the alleged M iranda error does not

preclude the government from introducing evidence of, or

prosecuting Smi th for, the threats made during the October 25

interview.7 The district court seemed to treat the substantive defense

mentioned in Garcia-Jordan as separate from the defenses of

entrapment or outrageous government conduct. The defense, as

contemplated by the district court, would apply where police

conduct creates a situation "in which a given criminal response

is predictable." United States v. Mitchell , 812 F.2d at 1254.

Contrary to the district court's interpretation, the defense

discussed in Garcia-Jordan is that of outrageous government

conduct. Both Garcia-Jordan and Mitchell , the Ninth Circuit case

on which the Garcia-Jordan court relied, refer to "outrageous

police conduct" or "[e]ntrapment and `outrageous government

conduct.'" Garcia-Jordan , 860 F.2d at 161; Mitchell , 812 F.2d at

1254.

7 II. Outrageous Government Conduct

The district court's dismissal of Count Two on the ground of

outrage ous government conduct was s ua 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 notic e, 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. I d

. at 161. 7

In order to benefit from the defense of outrageous government

conduct, Smith bears the burden of pr oving 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

,8

955 F.2d 331, 343 (5th Cir.), c ert. denied

, 113 S.Ct. 597 (1992)

and 113 S.Ct. 980 (1993). This defense is available only where the

conduct of the law enforcement officials is so outrageous that it

violates notions of fundamental f airness implicit in the Due

Process Clause of the Fifth Amendment. U nited States v. Yater

, 756

F.2d 1058, 1065 (5th Cir.), cert. denied

, 106 S.Ct. 225 (1985)

(citing United States v. Russell

, 93 S.Ct. 1637, 1643 (1973)).

This Court has never invalidated a conviction on thi s ground.

United States v. Collins

, 972 F.2d 1385, 1396 (5th Cir. 1992),

cert. denied , 113 S.Ct. 1812 (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

c onvicted 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

be to determine whether the government's prosecution of

the crime would abridge fundamental protections against

unfair treatment. Affording a substantive defense to a

crime committed during an illegal detention when

particular circumstances so warrant provides a more

rational and measured way of protecting individual rights

than does the application of fourth amendment analysis to

all such cases." 812 F.2d at 1254 (internal citation

omitted).

Neither the Garcia-Jordan court nor the Mitchell co urt held

that the outrageous government conduct defense was available on the

facts before them. In G arcia-Jordan

, a defendant moved to suppress

his statement to a Border Patrol agent, in which he falsely claimed9

to be a United States citizen, contending that the agent stopped

his vehicle illegally. Without deciding the legality of the stop,

this Court affirmed the district court's denial of the motion to

suppress, holding that the exclus ionary rule did not bar the

defendant's prosecution for the new crime of his false claim to

citizenship, which was different from any conduct that might have

led to the allegedly illegal stop. G arcia-Jordan

, 860 F.2d at 161.

The facts of Mitchell are similar to those in the present

case. Authorities in Singapore informed Secret Service agents in

Hawaii that Mitchell, then in Singapore, had made several threats

against President Reagan, and that Mitchell was planning to return

to the United States. Several days later, when Mitchell was

proceeding through customs in Hawaii, he made comments to a customs

agent that caused the agent to check computer records for

information on Mitchell; these records alerted the customs agent to

the fact that Mitchell was wanted for questioning by the Secret

Service. While waiting for the Secret Service agents to arrive,

custom agents took Mitchell t o a small room and searched him for

c ontraband and weapons. Mitchell was detained for approximately

one hour until the Secret Service agents arrived.

W h en Secret Service agents questioned Mitchell about the

statements he had made i n Singapore regarding President Reagan,

Mitchell asserted his intention to kill the President. Mitchell

was charged with violating 18 U.S.C. § 871. He moved to suppress

his statements made to the Secret Service agents on the ground that

his detention at the airport amounted to a de facto arrest without

probable cause.8 Smith was initially informed by Holliman that Holliman's job

was to protect the President and he wanted to "interview him

[Smith] about his feelings towards the president," that "any

talking had to be entirely voluntary," that Smith "had the right

to stop talking at any time" and "the right to leave the room at

any time," and that he was "not under arrest." Collins then told

10 The Ninth Circuit affirmed the district court's denial of the

motion to suppress, holding that the exclusionary rule did not bar

prosecution of the crime charged. M itchell

, 812 F.2d at 1253-1254.

The Court stated further that, although unlawful government conduct

could provide a substantive defense in some circumstances,

Mitchell's prosecution did not "offend any sense of fair treatment

or fair play, regardless of the legality or illegality of his

detention." Id . at 1254.

Similarly, the defense of outrageous government conduct does

not protect Smith. "[A] defendant cannot avail himself of the

defense where he has been an active participant in the criminal

activity which gave rise to his arrest." United States v. Yater

,

756 F.2d at 1066 (original emphasis). Smith took an active role

here; Collins testified at the suppression hearing that when Smith

began to talk, he spoke "very freely." There is no contrary

evidence.

Further, the conduct of Holliman and Collins does not amount

to an abridgement of the fundamental fairness guaranteed by the Due

Process Clause. Neither Holliman nor Collins was overinvolved in

the crime charged. While Smith was afforded the opportunity to

express threats, he was not urged, tricked, or baited into doing

so. Nor were the threats drawn from Smith by prolonged

questioning. 8 S ee Mitchell

, 812 F.2d at 1254-1255 ("Mitchell wasSmith "I didn't want him to think that he was trapped or forced

to talk to someone he didn't want to talk to. And as warden of

the institution, I just reassured him that he could leave

whenever he wanted to." Collins testifed, without contradiction,

that he then:

"asked him several questions just to sort of put him at

ease. I asked him about his parole, which he said was

imminent. I asked him like, What are you going to do

when you get out of the penitentiary?

Q What did he say in response?

A At that point, he said that he was going to kill an

inmate that was still incarcerated in TDC, and then he

said he was going to travel to the Mid-East. And then

he just started to sort of tell his story about SQ that's

how the president's name came up.

Q So, it evolved into a conversation about the

president?

A Really quickly it evolved into that.

Q And what did he say about the president in this

interview?

A He said he was going to travel to the Mid-East to

Iraq, that he was a Muslim and that Saddam Hussein was

the leader of the Muslim world and was his leader, and

that President Bush was the leader of the Christian

world and, therefore, was his enemy. And that he was

going to kill him and that he would wait for the right

time."

The interview lasted between an hour and a half and an hour

and three quarters.

11 in no way pressured or induced to make the new threat against the

President."). This case is unlike those in which the outrageous

c onduct defense is normally asserted in which the government has

instigated a sting operation and "enticed" the defendant into

participating in the illegal activity. S ee, e.g., United States v.

Yater , 756 F.2d at 1060-1061 (upon direction of law enforcement

officials, government informants contacted defendant about9 Holliman testified that "[t]he purpose was to investigate

the threat and to do adequate background investigation to

evaluate the threat and the danger toward the president of the

United States . . . ."

12 trafficking in cocaine). Here, Smith knew the identities of both

Collins and Holliman and was aware of their purpose in questioning

him. He was aware of Holliman's role with the Secret Service and

of the serious implications of any threats against the President.

It was not Holliman's intent to elicit a new threat. 9 As an

agent of the governmental agency charged with the President's

safety, Holliman was responsible for determining the seriousness of

Smith's threat. Questions to Smith concerning his feelings toward

President Bush were therefore proper. Although it is quite

conceivable that these questions could lead, as they did in fact

lead, to the renewed threat charged in Count Two, it is also

plausible that Smith woul d attempt to conceal or minimize his

hostile attitude or intentions re specting the President. We

conclude that Smith's criminal response, though perhaps probable,

was not predictable with reasonable certainty and that in any event

the conduct leading to it was not outrageous.

The district court was concerned about possible manipulation

of Smith's psychological condition. If the defendant suffers from

a serious mental condition, it is possible that a jury may find for

him on the defense of insanity. His mental condition might also be

something that could be considered at sentencing. On the other

hand, if Smith is merely mentally unba lanced, it is the

government's right, and indeed it may be its duty, to prosecute him

for the offense charged. We note that it is frequently an10 Cf. New York v. Quarles , 104 S.Ct. 2626 at 2641, 2647-48

(1984) (Marshall, J., joined by Brennan, J., and Stevens, J.,

13 unbalanced person who c ommits the offense of threatening S Q and

sometimes of attempting to kill SQ a president.

Finally, in dismissing Count Two, the district court was

influenced by the agents' failure to give full M iranda warnings.

Although it is true that Collins and Holliman deliberately decided

not to give Smith his full Miranda warnings, there is no evidence

of a bad faith intent to violate Smith's rights. Whether Miranda

applied was at least less than obvious. The agents did not intend

to elicit a confession to the October 23 threat and, indeed, did

not even question Smith concerning his October 23 statements (see

note 5, supra ). And, as discussed above, the failure to give

Miranda warnings does not prevent prosecution of a new crime.

Mitchell , 812 F.2d at 1253-1254.

Further, "[t]he prophylactic Miranda warnings are `not

themselves rights protected by the Constitution but [are] instead

measures to insure that the right against com pulsory selfi ncrimination [is] protected.'" D uckworth v. Eagan

, 109 S.Ct.

2875, 2880 (1989) (quoting Michigan v. Tucker

, 94 S.Ct. 2357, 2364

(1974)). S ee also Oregon v. Elstad

, 105 S.Ct. 1285, 1291-1293

(1985) (declining to extend the "fruit of the poisonous tree"

doctrine to Miranda violations); United States v. Harrell

, 894 F.2d

120, 125 (5th Cir.), cert. denied

, 111 S.Ct. 101 (1990) ("The

[fruit of the poisonous tree] doctrine operates o nly where

constitutional violations arise, and Miranda's prophylactic

warnings are not constitutional rights in and of themselves."). 10dissenting) ("If a bomb is about to explode or the public is

otherwise imminently imperiled, the police are free to

interrograte suspects without advising them of their

constitutional rights. Such unconsented questioning may take

place . . . when . . . advising a suspect of his constitutional

rights might decrease the likelihood that the suspect would

reveal life-saving information. If trickery is necessary to

protect the public, then the police may trick a suspect into

confessing. While the Fourteenth Amendment sets limits on such

behavior, nothing in the Fifth Amendment or our decision in

Miranda v. Arizona proscribes this sort of emergency questioning.

All the Fifth Amendment forbids is the introduction of coerced

statements at trial.").

14 The failure to give Smith his full Miranda warnings did not, in and

of itself, amount to a constitutional violation.

At the suppression hearing, the defense made much of

Holliman's statement that he would violate a person's Miranda

rights if he thought it necessary to protect the President.

Contrary to the district court's disapproval of this sentiment, we

agree with the go vernment. While in some circumstances evidence

obtained in such a situation may not be admissible in court,

Holliman's mere questioning of Smith without full Miranda warnings

did not violate Smith's constitutional rights against selfincrimination. Holliman had a duty to investigate the seriousness

of Smith's threat and to ensure the safety of the President; it was

not unconstitutional for Holliman to choose not to give Smith his

Miranda warnings in order to fulfill this duty.

If this Court is ever to apply the outrageous government

conduct defense, it should not apply on facts such as these, where

the police conduct that leads to the new crime is appropriate and

not unreasonable.15 Conclusion

For the reasons stated above, the order of the district court

dismissing Count Two of the indictment is REVERSED, and this cause

is REMANDED for further proceedings not inconsistent with this

opinion.

REVERSED AND REMANDED