### *THE HONORABLE RICHARD W. GOLD BERG, Judge, United States

Court of International Trade, sitting by designation. THE HONORABLE GEORGE HOWARD, JR., United States Distric t 1 

### Judge for the Eastern District of Arkansas. ____________ No. 95-3633

____________ United States of America, * *

Appellee, * * v. * Appeal from the United States * District Court for the Eastern John McKinney, * District of Arkansas. * Appellant. *

____________ Submitted: April 11, 1996 Filed: July 1, 1996

____________ Before MAGILL and LOKEN, Circuit Judges, and GOLDBERG, Judge. *

____________ GOLDBERG, Judge. A jury convicted John McKinney of th reatening to assault a member of Congress, and the district court sentenced him to 18 months in prison
. 1 On appeal, Mr. McKinney makes the following arguments: (1) the district court erred by admitt ing certain inculpatory statements that he made; (2) the evidence presented at trial was insufficient to support his conviction ; and (3) the district court applied the incorrect sentencing guideline. We affirm.

### -2- I. BACKGROUND

In 1994, a United States Congresswoman from Arkansas, Blanch e Lambert, received several letters that contained menacing, obscene, an d anti-semitic remarks. Most of the letters were signed by John McKinney of Poinsett County, Arkansas (the "signed letters"). One letter, however, wa s unsign ed (the "unsigned letter"). This letter included a particularl y explicit threat to the Congresswoman:
You had b etter get you some body armour. Remember it will not stop an i cepick [sic] esp. in the eyes (my favorite). My Vietna m speciality [sic]. 34 to my name (2 American traitor captains). . . . I h ope I get close enough to do my assignment soon. The pick is 13 inche [sic] long. The disturbing letters prompted the FBI to conduct an investigation.

On Se ptember 16, 1994, an FBI agent went to Poinsett County t o interview Mr. McKinne y. The FBI agent had the Sheriff of Poinsett County drive him to Mr. McKinney's rural home. When they arrived, Mr. McKinney awoke and came outside. Although it was raininglightly, Mr. McKinney did not invite the FBI agent and the sheriff inside his home. The agent and the sher iff therefore sought to speak with Mr. McKinney inside th e sheriff 's car. Mr. McKinney willingly sat in the back seat of the car
. The record does not show whether the doors to the back seat could be opene d from the inside.
The FBI a gent questioned Mr. McKinney about the signed and unsigned let ters that were sent to Congresswoman Lambert. Mr. McKinney admitte d that he had written the signed letters. He did not, however, admit t o wr iting the unsigned letter to her. When the FBI agent finishe d questioning Mr. McKinney, Mr. McKinney

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returned to his home. The FBI agent did not int end to arrest Mr. McKinney at that time.

Mr. McKinney was eventually indicted on charges of threatening a member of Congress and mailing a threat, based upon the explicit threat in the unsigned letter sent to Congresswoman Lambert. Mr. McKinney made a motion to suppress the statements that he made while in the sheriff's car, claiming that he should have received certain wa rnings pursuant to Miranda
v. Arizon a , 384 U.S. 436 (1966). The district court denied the motion
. At tri al, Mr. McKinney's admission regarding the signed letters wa s admitted. In addition, an expert testified that the handwriting in th e signed letters matched the writing in the unsigned letter and its envelope
. Another expert testified that Mr. McKinney's palm print was on the unsigne d letter, and that someone else's fingerprints were on its envelope.
The jury found Mr. McKinney guilty of threatening a member o f Congress, but it acquitted him of mailing a threat. The district cour t denied Mr. McKinney's post-trial motion for acqu ittal and sentenced him to 18 months in federal prison.

II. DISCUSSION

A. Miranda Warnings Mr. McKinney argues that he was entitled to Miranda warnings wh en the FBI agent questioned him because he was in custody at that time. Th e United Sta tes argues that Mr. McKinney was not in custody because th e authorities did not r estrain his physical movement to a degree associated with arrest.

### We no te that this standard may be reconsidered in light o f 2 

### Thompson v. Keohane , ___ U.S. ___ (1995) (holding that, in habeas corpus cases, federal courts should independently review stat e court custody determinations). We have reviewed Thompson , and we conclude that the result would be the same in this case if w e utilized a de novo standard of review. -4- We review

the district court's conclusions concerning custody under the "clearly erroneous" standard. United States v. Griffin , 922 F.2 d 2 1343, 1 347 (8th Cir. 1990). We "must affirm unless the decision of th e distri ct court is unsupported by substantial evidence, based on a n erroneous interpretation of applicable law, or, in light of the entir e record, we are left with a firm and definite con viction that a mistake has been made." United States v. Jorgensen , 871 F.2d 725, 728 (8th Cir. 1989)
. Miranda , 384 U.S. 436, established t hat a person "must be advised of the right to be free from compulsory self-incrimination, and the right to the assistance of an attorney," any time that pe rson is taken into custody for questioning. Griffin , 922 F.2d at 1347. Cu stody occurs not only upon formal arrest, but also under " any other circumstances where the suspect is deprived of his freedom of action in anysignificant way." Id
. (emphasis in original).

In determining whether a suspect is in custody, we "consider th e totalityof the circumstances." United States v. Helmel , 769 F.2d 1306, 132 0 (8th Cir. 1985). In doing so, we examine the following relevan t factors: the length of interrogation, the accused's freedom to leave the scene, and the place and purpose of the interrogation. Id.

In addit ion, we examine certain factors that are often referred t o as "indicia of custody": (1) whether the suspect was informed at the time of questioning that the questioning was voluntary, that the

### -5- suspect was free to leav e or request the officers to do so, or that the suspect was not considered under arrest; (2) whether the suspect possessed unrestrained freedom of movement during questioning; (3) whether the suspect initiated contact wit h authorities or voluntarily acquiesced to official requests to respo nd to questions; (4) whether strong arm tactics o r deceptive stratagems were employed during questioning; (5 ) whether the atmosphere of questioning was police do minated; or, (6) whether the suspect was placed under arrest at th e termination of questioning.
Griffin , 9 22 F.2d at 1349. The first three of these factors tend t o mitigate against a finding of custody. Id. The last three factors tend to weigh in favor of a finding of custody. Id. A finding of custody does not, however, have to be supported by all six factors. Id.
In this case, relevant factors indic ate that Mr. McKinney was not in custo dywhen the authorities questioned him. First, the length of th e interrogation does not indicate that Mr. McKinney was in custody, as the authorities did not s peak with Mr. McKinney for a particularly long time. Seco nd, although Mr. McKinney was questioned in the back seat of th e sheri ff's car, the evidence fails to prove that Mr. McKinney could no t leave the scene. He was not handcuffed, and there is no evidence to show that he co uld not open the car doors. Third, Mr. McKinney helped t o determine the place of questioning; he chose to remain outside in the rain when the authorities arrived, and he willingly sat in the sheriff's car. Further, the FBI's pu rpose in seeing Mr. McKinney was merely to interview him, not to take him into arrest. Similarly, "indicia of custody" gene rally show that Mr. McKinney was not in custody when the FBI agent questioned him . As mentioned above, Mr. McKinney was not hand cuffed during questioning. In addition, he answered questions voluntarily. These facts mitigate aga inst a finding of custody. Moreover, the fact that the authorities neither mistreated Mr. McKinney, nor

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dominated the conversation with him, indicates that Mr. McKinney was not in custody. Finally, the fact that the authorities did not arrest Mr
. McKinney corroborates the finding that he was not in custody. Upon consideration of the totality of the circumstances, we fin d that substantial evidence and law support the findingthat Mr. McKinney was not in custody when the FBI agent questioned him. Accordingly, the district court's conclusion concerning custody is affirmed.

B. Sufficiency of Evidence

Mr. McK inney also claims that the United States failed to meet it s burden of proving tha t he threatened Congresswoman Lambert. Mr. McKinney points o ut that in order to violate the law, one must communicat e threatening thoughts to others. Mr. McKinney cl aims that because the jury acquitted him of mail ing a threat, the United States failed to prove that he commun icated a threat. The United States, on the other hand, claim s that a defendant convicted by a jury on one count cannot attack tha t conviction because it is inconsistent with the j ury's verdict of acquittal on another count. The United States further claims that it presente d sufficient evidence to support Mr. McKinney's conviction.

It is not necessary for a jury to reach consistent verdicts on tw o counts of an indictment. United States v. Powel l , 469 U.S. 57, 62 (1984). "[W]here truly inconsistent verdicts have been reached, `[t]he most that can be said . . . is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt .' " Id. at 64 -65 (quoting Dunn v. United States , 284 U.S. 390, 393 (1932))
. Indeed, a jury convinced of the defendant's guilt may decide not to convic t on all counts through mistake, lenity, or compro mise. Powell , 469 U.S. at

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65. Nevertheless, the state "is precluded from appealing or otherwis e upsetting such an acquittal by the Constitution' s Double Jeopardy Clause." Id. Appellate review of a conviction on one count of an indictment takes place "independent of the jury's determination that evidence on anothe r count was insufficient." Id. at 67. We will affirm the conviction if "th e evidence adduced at trial could support any rational determination of guil t beyond a reasonable doubt." Id.
Upon re view, we find that the evidence adduced at trial supports a ration al determination that Mr. McKinney is guilty, beyond a reasonabl e doub t, of threatening to assault a member of Congress. Mr. McKinne y admitt ed that he wrote several signed letters to Congresswoman Lambert ; these letters contain menacing, obscene, and anti-semitic remarks. Th e writ ing in the signed letters matches the writing in a very similar , unsigned letter and i ts envelope. In addition, Mr. McKinney's palm print is on the unsigned letter. The unsigned letter contains explicitl y threatening remarks, and it was received by Congresswoman Lambert's office
. Because this evidence supports a rational determination that Mr. McKinney is guilty, beyond a reasonable doubt, of threatening Congresswoman Lambert , we affirm Mr. McKinney's conviction.

C. Sentencing Guidelines Mr. McKinney claims that the distric t court applied the wrong United States Sentencing Guideline to his conduct. According to Mr. McKinney, th e guideline for "Minor Assault" should apply. The United States claims that the applied guideline correlates with the conduct for which Mr. McKinney was convicted.

In "rev iewing a sentence, we `shall accept the findings of fact o f the district court unless they are clearly erroneous and

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shall give due deference to the district court's application of th e guidelines to the fac ts.'" United States v. Hill , 943 F.2d 873, 875 (8th Cir. 1991) (quoting 18 U.S.C. § 3742(e) (1988)).

Mr . McKinney was convicted of threatening to assault a member o f Con gress, in violation of 18 U.S.C. § 115(a)(1)(B) and 18 U.S.C. § 115(b)(4). Appendix A to the United States Sentencing Guidelines crossreferences these stat utory provisions with the guideline for "Threatening Commun ications," § 2A6.1. Because the district court sentenced Mr
. McKinney pursuant to the guideline for "Threatening Communications," w e affirm Mr. McKinney's sentence.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.