UNPUBLISHED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Affirmed by unpublished per curiam opinion.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.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

On May 9, 1995, a federal grand jury returned a six-count indictment 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 district 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. Leonard 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 thereafter, the United States Postal Service began investigating the incident.

According to testimony presented at Leonard's suppression hearing, postal inspectors contacted Leonard on two occasions. On

December 22, 1994, Inspector Leslie Lauziere and other agents visited 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 questions. 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 explosive 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 circumstantial evidence to work up a good case, and he's going to

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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 Griffith 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 Lauziere offered and Leonard agreed that Lauziere would write the statement 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 examination, and again after the statement was written. Griffith also testified 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 positions 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

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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 custodial 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 interrogation).

Of course, a defendant who is not in custody has no entitlement to

Miranda warnings. "An individual is `in custody' for Miranda purposes 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 omitted); 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 opportunity 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 physically 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 warnings, Leonard maintains that his confession was involuntary and so

should have been suppressed. We make a de novo review of the ultimate 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 overborne 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, combined with the setting and duration of the interrogation and Leonard's

low education level and borderline intelligence, rendered the confession 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 suggestion 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-

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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 government's burdens of investigation and prosecution, is looked upon

favorably by prosecutors and judges" is "very close to being a truism." 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 reiterated that courts cannot "focus on a single factor," a single circumstance, 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

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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). Furthermore, in circumstances where agents know or should know a defendant 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 individual 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 Leonard 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 involuntary. See Braxton, 112 F.3d at 784-85. Cf. Murphy, 107 F.3d at

1205 (placement of defendant in police cruiser did not render statement involuntary even in light of defendant's limited mental capacity); 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).

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III.

For the foregoing reasons, the district court's denial of Leonard's

motion to suppress is hereby

AFFIRMED.

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