* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 10 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. LAWRENCE ERNEST STROUD, Defendant-Appellant. No. 02-1347 (District of Colorado) (D.C. No. 00-CR-260-N)

ORDER AND JUDGMENT *

Before SEYMOUR , MURPHY , and O’BRIEN , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The c ase is therefore ordered submitted without oral argument.-2-

I. INTRODUCTION Defendant Lawrence Stroud (“Stroud”) was convicted by a jury of assault within the maritime and territorial jurisdiction of the United States, in violation of 18 U.S.C. § 113(a)(6). The district court sentence d Stroud to 96 months’ imprisonment and three years of supervised release. Stroud argues on appeal that the district court erred in denying his motion to s uppress statements made to the Federal Bureau of Investigation (“FBI”) during its inquiry into the assault. Stroud also contends that the district court erred in allowing the government to impeach a defense witness with the witness’ mental health history. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this cou rtaffirms . The statement Stroud challenges as involuntary was made prior to any allegedly misleading comment by FBI investigators concerning the sentenc ing guidelines. In addition, even if the district court erred in admitting impea chment testimony concerning the mental health history of a witness, the error was h armless.
II. BACKGROUND Stroud was an inmate at the Federal Correctional In stitution (“FCI”) in Englewood, Colorado. On May 4, 2000, Stroud got in to an argument with his cellmate, Marlo Pittman (“Pittman”), over Pittman s moking a cigar in their cell. Stroud testified that when he asked Pittman and two other inmates to “take the-3-

cigar elsewhere,” Pittman and the two inmates lifte d their shirts so that Stroud could see the homemade knives or “shanks” placed in their waistbands. Stroud testified that early the next morning, he he ated water in the microwave in order to make coffee. He stated that upon returning to his cell, Pittman confronted him with a knife and made threat ening statements. In response, Stroud threw the cup of hot water at Pitt man. In contrast, Pittman testified that he was sleeping at the time of the incident and did not confront Stroud. He stated that he wok e up in pain with Stroud swinging at him. Stroud then chased Pittman to the bathroom area. Pittman stated that Stroud continued to swing at him and la nded a blow just before officers restrained Stroud. Pittman testified thathe returned to his cell and, shortly thereafter, an officer noticed that he had been burned. Pittman was treated by a physician’s assistant at FCI and was then tran sferred to a hospital for medical treatment. Pittman suffered partial thickn ess burns on the right side of his face, his shoulders, the right side of his neck , and his left arm. During an investigation of the incident, two FBI ag ents interviewed Stroud in a large conference room located in a facility atthe FCI separate from where Stroud was housed. Agent James Berry (“Agent Berry ”) had Stroud read aloud from the Mirandarights advisement form. Stroud refused to sign th e form but agreed to talk with the agents and stated that he d id not require an attorney.-4-

During the interview, Stroud explained what had tak en place on May 4, 2000. Specifically, as Agent Berry’s report noted:

Stroud stated that he felt scared and threatened after the confrontation with Pittman, [and the other two inmates]. He began thinking of ways to get out of the situation, and felt that some sort o f retaliation against Pittman would be necessary; thereby preventing Pittman from injuring him. Stroud advised that if he voluntarily went to the Segregated Housing Unit (SHU) he would be considered a “snitch.” Stroud stated that the retaliation “Had to be bad enough so I or the other person never hit the compound.” In addition, Stroud stated “I had to have a way out without killing somebody,” and “Could put dirt on myself and get out unscathed.” After describing the events that occurred on the ev ening before the early morning incident, Stroud declined to further discus s the matter. At that point, Agent Berry stated that acceptance of responsibility could potentially benefit Stroud at sentencing. Agent Berry mentioned the po ssible reduction in order to obtain specific details concerning Pittman’s injuri es. Stroud refused to provide further details about the incident, except to menti on that he intended to hit Pittman in front of officers so that he could be pl aced in the Segregated Housing Unit (“SHU”). On June 21, 2000, Stroud was indicted on one count of assault within the maritime and territorial jurisdiction of the United States. Prior to trial, Stroud filed a motion to suppress the statements made to F BI agents during the assault-5-

investigation on the basis that his statements were not voluntary. In support, he claims he did not sign the Mirandarights advisement form and the interrogation atmosphere was coercive. The district court denied Stroud’s motion to suppress. The court found Stroud’s statements to be mostly ex culpatory and noted that Stroud was not admitting to causing or having knowl edge about Pittman’s injuries. The court also found Agent Berry’s state ments to Stroud concerning the acceptance of responsibility sentencing adjustment were misleading. The court, however, determined that Stroud did not “give in an d tell the agent the whole story.” The court concluded that Stroud was given the Miranda warning and that his statements were voluntary. On February 11, 2002, Stroud was tried before a jury. At trial, Stroud called Samuel Robinson (“Robinson”), a fellow inmat e in the SHU, as a defense witness. During cross-examination, the government asked whether Robinson had past mental problems. Stroud objected and noted th at “[t]here ha[d] been no suggestion [Robinson was] not competent to testify. ” The district court overruled Stroud’s objection. Robinson then testified about his prior hospitalizations for depression and his current and past medications formanic depression and depression. Robinson also stated that an evaluatio n revealed that he did not suffer from diminished capacity.-6-

The jury found Stroud guilty on the assault charge. The district court sentenced him to 96 months’ imprisonment with three years of supervised release.
III. DISCUSSION A. Voluntariness of Statements Stroud alleges that the district court erred in denying his motion to suppress the statements made to the FBI because such stateme nts were involuntarily made. This court reviews the voluntariness of incriminati ng statements de novo

. United States v. Short , 947 F.2d 1445, 1449 (10th Cir. 1991). Underlying factual findings by the district court, however, are subjec t to review under the clearly erroneous standard. United States v. Lugo , 170 F.3d 996, 1003 (10th Cir. 1999). In an appeal of the district court’s denial of the defendant’s motion to suppress, this court reviews the evidence in the light most f avorable to the government. Short , 947 F.2d at 1449. To determine whether the defendant’s statements wer e voluntarily made, this court must “examine the entire record and make an independent determination of the ultimate issue of voluntariness.” Lugo , 170 F.3d at 1004. Voluntariness is determined from the totality of the circumstances. Clanton v. Cooper , 129 F.3d 1147, 1158 (10th Cir. 1997). This court examines s everal factors, including:

(1) the defendant’s age, intelligence, and educati on; (2) the length of the detention and interrogation; (3) the length and nature of the questioning; (4) wheth er the defendant was advised of his constitutional-7- rights; and (5) whether the defendant was subjected to or threatened with any physical punishment. Lugo , 170 F.3d at 1004. “No single factor is determinative.” Id. Upon reviewing the record and giving the appropriat e deference to the district court’s factual findings, this court concl udes that Stroud’s statements were voluntary. At the time of the interview, Stroud wa s not “unusually susceptible to coercion” because of his age, intelligence, or educ ation. Id. In fact, Stroud was over thirty years old, had received his GED, and ha d prior experience with the criminal justice system. In addition, the intervie w took place at the FCI where Stroud was serving a separate term of imprisonment. Although he was handcuffed and shackled during the interview, Strou d was placed in the handcuffs and shackles in order to transport him to a more ac commodating interview room within the institution. The interview was short in duration, lasting no more than 45 minutes. Also, Stroud concedes on appeal that h e was properly advised of his Mirandarights during the interview. Moreover, Stroud’s r efusal to sign the waiver form while orally agreeing to speak with the agents in the absence of an attorney does not weaken the Mirandaadvisement. See id. at 1004-05 (noting that a defendant’s waiver of Miranda rights is not invalidated because the waiver is oral rather than written). Finally, Stroud was not subjected to physical punishment during the interview.-8-

Stroud, however, argues that the statements obtaine d during the interview were the result of coercion or deception because th e interviewing FBI agent misled him about the availability of the acceptance of responsibility sentence reduction. “Incriminating statements obtained by g overnment acts, threats, or promises that permit the defendant’s will to be ove rborne are coerced confessions running afoul of the Fifth Amendment and are inadmi ssible at trial as evidence of guilt.” Short , 947 F.2d at 1449. Specifically, a promise of len iency made in exchange for an inculpatory statement is a “productof inducement, and thus not an act of free will.” Griffin v. Strong , 983 F.2d 1540, 1543 (10th Cir. 1993) (quotation omitted). The district court determined that the interviewing FBI agent’s comments concerning the acceptance of responsibility and imp lication that the defendant would receive the reduction in exchange for speakin g was “a misleading thing for the agent to do.” The district court also noted th at, despite the agent’s error, the defendant refrained from speaking about the assault

. Similarly, this court concludes that Stroud was notsubject to coercion because the statements that he challenges were made prior to any reference to the acceptance of responsibility reduction. See United States v. Glover , 104 F.3d 1570, 1580 (10th Cir. 1997) (concluding in part that because the government’s promise of leniency occurred after the interview, t he defendant’s will was not1 Because we conclude that Stroud’s statements to the FBI were voluntarily

made and not coerced, it is not necessary for this court to address whether the statements were exculpatory or inculpatory. -9- overborne and her confession was voluntary). Altho ugh the agent implied that Stroud’s sentence could be impacted by explaining w hat happened to Pittman on the morning of the assault, Stroud neither discusse d the assault nor provided any details about the events that unfolded that morning . Thus, there was no exchange of a promise of leniency for Stroud’s incriminating statements; he was not induced to speak. Moreover, the jury was instructe d that they could disregard any statement that was not knowingly made. Because the statements were voluntary and were not coerced, 1 the district court did not err in denying Stroud’s motion to
suppress. B. Impeachment Testimony Stroud contends that the district court abused its discretion by permitting the government to inquire into the mental health hi story of Robinson on crossexamination. This court reviews the district court ’s determination to permit the impeachment of a witness based upon his mental heal th history for abuse of discretion. See United States v. Butt , 955 F.2d 77, 84 (1st Cir. 1992). “An evidentiary ruling will be overturned on appeal onl y if the abuse of discretion suggests an arbitrary, capricious, whimsical, or ma nifestly unreasonable judgment.” United States v. Hinkle , 37 F.3d 576, 579 (10th Cir. 1994)-10-

(quotations omitted). Unless Stroud’s substantial rights were affected, however, the district court’s decision to admit the impeachm ent evidence was harmless. United States v. Charley , 189 F.3d 1251, 1270 (10th Cir. 1999). An error affecting the substantial rights of a defendant is one that has a "substantial influence on the outcome or which leaves one in grave doubt as to whether it had such effect." Id. (quotations omitted). Stroud argues that there was no evidence suggesting Robinson’s mental problems affected his ability to perceive or recall events or to testify accurately. He also asserts that questions concerning Robinson’ s mental condition were not relevant to his credibility. After review of the r ecord, this court concludes that the district court’s admission of Robinson’s impeac hment testimony did not substantially influence the outcome or leave this c ourt in grave doubt that the jury’s verdict would have differed had the districtcourt precluded the government from questioning Robinson about his mental health h istory. Although Robinson was asked about his current and past medications an d prior hospitalizations, he also explained on both cross-examination and redire ct examination that his mental condition did not affect his ability to perceive ev ents and that a formal evaluation acknowledged that he did not suffer from a diminish ed capacity. Furthermore, there was other evidence which made the attempted i mpeachment less likely to have had a substantial influence on the jury verdic t, namely that Stroud admitted-11-

to throwing the hot water at Pittman, that no weapo n was discovered after the incident took place, and that there was corroborati ng testimony from the treating physician that Pittman was laying down when the wat er was thrown on him. Moreover, the jury was instructed that they were “t he sole judges of the believability of the witnesses and the weight theirtestimony deserves” and thus could have disregarded the impeachment testimony. See United States v. Moore , 923 F.2d 910, 913 (1st Cir. 1991) (noting that the question of whether mental health interferes with a witness’ ability to percei ve or recall events or to testify accurately is within the province of the jury); see also Fed. R. Evid. 601 advisory committee’s note (stating that mental incapacity go es to the weight and credibility of the witness). In sum, this court need not decide whether the dist rict court abused its discretion in allowing the government to inquire ab out Robinson’s mental health history because any error was harmless.
IV. CONCLUSION Based upon the foregoing reasons, this court AFFIRMS Stroud’s conviction.
ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge