*THE HONORABLE RICHARD W. GOLDBERG, Judge, United States

Court of International Trade, sitting by designation.

 THE HONORABLE GEORGE HOWARD, JR., United States District

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 threatening 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 admitting 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.
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I. BACKGROUND

In 1994, a United States Congresswoman from Arkansas, Blanche

Lambert, received several letters that contained menacing, obscene, and

anti-semitic remarks. Most of the letters were signed by John McKinney of

Poinsett County, Arkansas (the "signed letters"). One letter, however, was

unsigned (the "unsigned letter"). This letter included a particularly

explicit threat to the Congresswoman:

You had better get you some body armour. Remember it will not stop

an icepick [sic] esp. in the eyes (my favorite). My Vietnam

speciality [sic]. 34 to my name (2 American traitor captains). 

. . . I hope 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 September 16, 1994, an FBI agent went to Poinsett County to

interview Mr. McKinney. 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 raining lightly, Mr. McKinney did

not invite the FBI agent and the sheriff inside his home. The agent and

the sheriff therefore sought to speak with Mr. McKinney inside the

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 opened

from the inside.

The FBI agent questioned Mr. McKinney about the signed and unsigned

letters that were sent to Congresswoman Lambert. Mr. McKinney admitted

that he had written the signed letters. He did not, however, admit to

writing the unsigned letter to her. When the FBI agent finished

questioning Mr. McKinney, Mr. McKinney
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returned to his home. The FBI agent did not intend 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 warnings pursuant to Miranda

v. Arizona, 384 U.S. 436 (1966). The district court denied the motion.

At trial, Mr. McKinney's admission regarding the signed letters was

admitted. In addition, an expert testified that the handwriting in the

signed letters matched the writing in the unsigned letter and its envelope.

Another expert testified that Mr. McKinney's palm print was on the unsigned

letter, and that someone else's fingerprints were on its envelope. 

The jury found Mr. McKinney guilty of threatening a member of

Congress, but it acquitted him of mailing a threat. The district court

denied Mr. McKinney's post-trial motion for acquittal and sentenced him to

18 months in federal prison. 

II. DISCUSSION

A. Miranda Warnings

Mr. McKinney argues that he was entitled to Miranda warnings when the

FBI agent questioned him because he was in custody at that time. The

United States argues that Mr. McKinney was not in custody because the

authorities did not restrain his physical movement to a degree associated

with arrest. 
 We note that this standard may be reconsidered in light of

2

Thompson v. Keohane, ___ U.S. ___ (1995) (holding that, in habeas

corpus cases, federal courts should independently review state

court custody determinations). We have reviewed Thompson, and we

conclude that the result would be the same in this case if we

utilized a de novo standard of review. 

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We review the district court's conclusions concerning custody under

the "clearly erroneous" standard. United States v. Griffin, 922 F.2d

2

1343, 1347 (8th Cir. 1990). We "must affirm unless the decision of the

district court is unsupported by substantial evidence, based on an

erroneous interpretation of applicable law, or, in light of the entire

record, we are left with a firm and definite conviction that a mistake has

been made." United States v. Jorgensen, 871 F.2d 725, 728 (8th Cir. 1989).

Miranda, 384 U.S. 436, established that 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 person is taken into custody

for questioning. Griffin, 922 F.2d at 1347. Custody occurs not only upon

formal arrest, but also under "any other circumstances where the suspect

is deprived of his freedom of action in any significant way." Id.

(emphasis in original).

In determining whether a suspect is in custody, we "consider the

totality of the circumstances." United States v. Helmel, 769 F.2d 1306,

1320 (8th Cir. 1985). In doing so, we examine the following relevant

factors: the length of interrogation, the accused's freedom to leave the

scene, and the place and purpose of the interrogation. Id. 

In addition, we examine certain factors that are often referred to

as "indicia of custody": 

(1) whether the suspect was informed at the time of questioning

that the questioning was voluntary, that the
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suspect was free to leave 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 with

authorities or voluntarily acquiesced to official requests to

respond to questions; (4) whether strong arm tactics or

deceptive stratagems were employed during questioning; (5)

whether the atmosphere of questioning was police dominated; or,

(6) whether the suspect was placed under arrest at the

termination of questioning. 

Griffin, 922 F.2d at 1349. The first three of these factors tend to

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 indicate that Mr. McKinney was not in

custody when the authorities questioned him. First, the length of the

interrogation does not indicate that Mr. McKinney was in custody, as the

authorities did not speak with Mr. McKinney for a particularly long time.

Second, although Mr. McKinney was questioned in the back seat of the

sheriff's car, the evidence fails to prove that Mr. McKinney could not

leave the scene. He was not handcuffed, and there is no evidence to show

that he could not open the car doors. Third, Mr. McKinney helped to

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 purpose in seeing Mr. McKinney was merely to interview

him, not to take him into arrest.

Similarly, "indicia of custody" generally show that Mr. McKinney was

not in custody when the FBI agent questioned him. As mentioned above, Mr.

McKinney was not handcuffed during questioning. In addition, he answered

questions voluntarily. These facts mitigate against 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 find that

substantial evidence and law support the finding that 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. McKinney also claims that the United States failed to meet its

burden of proving that he threatened Congresswoman Lambert. Mr. McKinney

points out that in order to violate the law, one must communicate

threatening thoughts to others. Mr. McKinney claims that because the jury

acquitted him of mailing a threat, the United States failed to prove that

he communicated a threat. The United States, on the other hand, claims

that a defendant convicted by a jury on one count cannot attack that

conviction because it is inconsistent with the jury's verdict of acquittal

on another count. The United States further claims that it presented

sufficient evidence to support Mr. McKinney's conviction. 

It is not necessary for a jury to reach consistent verdicts on two

counts of an indictment. United States v. Powell, 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 convict

on all counts through mistake, lenity, or compromise. Powell, 469 U.S. at
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65. Nevertheless, the state "is precluded from appealing or otherwise

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 another

count was insufficient." Id. at 67. We will affirm the conviction if "the

evidence adduced at trial could support any rational determination of guilt

beyond a reasonable doubt." Id. 

Upon review, we find that the evidence adduced at trial supports a

rational determination that Mr. McKinney is guilty, beyond a reasonable

doubt, of threatening to assault a member of Congress. Mr. McKinney

admitted that he wrote several signed letters to Congresswoman Lambert;

these letters contain menacing, obscene, and anti-semitic remarks. The

writing in the signed letters matches the writing in a very similar,

unsigned letter and its envelope. In addition, Mr. McKinney's palm print

is on the unsigned letter. The unsigned letter contains explicitly

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 district court applied the wrong United

States Sentencing Guideline to his conduct. According to Mr. McKinney, the

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 "reviewing a sentence, we `shall accept the findings of fact of

the district court unless they are clearly erroneous and
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shall give due deference to the district court's application of the

guidelines to the facts.'" 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 of

Congress, 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 statutory provisions with the guideline for "Threatening

Communications," § 2A6.1. Because the district court sentenced Mr.

McKinney pursuant to the guideline for "Threatening Communications," we

affirm Mr. McKinney's sentence.

A true copy.

Attest:

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