United States v. Barlow ( 1994 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 93-2411
UNITED STATES OF AMERICA
Plaintiff-Appellee,
v.
DOUGLAS LEE BARLOW a/k/a
Douglas Lee Barlow, a/k/a
Henry Gibbons, and
WILLIAM HEBER LEBARON,
a/k/a Heber LeBaron, etc.,
Defendants-Appellants.
C/W
No. 93-2474
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
PATRICIA LEBARON, a/k/a
Trish LeBaron, a/k/a
Valerie Davis,
Defendant-Appellant.
Appeals from the United States District Court
for the Southern District of Texas
( December 20, 1994)
Before REYNALDO G. GARZA, WIENER, and EMILIO M. GARZA, Circuit
Judges.
PER CURIAM:
In this direct criminal appeal, we are called upon for the
first time to interpret the reach of 18 U.S.C. § 247. In
particular, we are asked to rule whether, as used in that statute,
"the free exercise of religion" comprehends not only the right
actively to select and practice the religion of one's choice, but
also the right passively to refrain from practicing a particular
religion or to disassociate one's self from one's former religion.
We hold that the concept of "the free exercise of religion" is
sufficiently broad to encompass both choices, active practice and
passive disassociation.
Defendants-Appellants (collectively, Defendants), all members
of a splinter religious sect commonly known as the "Church of the
Lamb of God" (hereafter referred to variously as the "Church of the
First Born of the Lamb of God," "Lamb of God," or simply "the
Church," depending on the context when read), were convicted under
18 U.S.C. § 247 (obstruction of persons in the free exercise of
religious beliefs), § 1962(c) (Racketeer Influence and Corrupt
Organizations Act ("RICO")), § 371 (witness tampering), and § 924
(using a firearm in commission of violent crime), for conduct
associated with the killing of four persons, three of whom were
former members of the Church. Leaders of the Church had ordered
the execution of the three ex-members for the sole reason that they
had chosen to disassociate themselves from the church's teachings
and its fellowship. The fourth victim, an eight-year old daughter
2
of one of the adult victims, was killed because she witnessed the
slaying of her father. Defendants challenge their convictions,
raising a host of issues, including the scope of § 247,
insufficiency of the evidence, invalid jury instructions, and
inadmissibility of certain evidence. In addition, Defendant-
Appellant Patricia LeBaron ("Patricia") asserts that the
introduction into evidence of a statement that she made to a law
enforcement official while she was incarcerated on other charges
violated her constitutional rights. Finding no reversible error,
we affirm the convictions and sentences of all Defendants in all
respects.
I
FACTS AND PROCEEDINGS
Patricia and Defendant-Appellants Douglas Barlow ("Barlow")
and William Heber LeBaron ("Heber"), were convicted on various
charges stemming from the assassination-style killings of Mark
Chynoweth ("Mark"), Edward Marston ("Ed"), Duane Chynoweth
("Duane"), and Duane's eight-year old daughter, Jenny Chynoweth
("Jenny"), which were carried out simultaneously on June 27, 1988.1
At the time of the slayings, the Defendants were all members of the
Church. The adult victims, all former members of the Church, were
killed for the sole reason that they had chosen to disassociate
1
Aaron LeBaron ("Aaron") and Jacqueline Tarsa LeBaron
("Jacqueline"), also named in the instant indictment, are
fugitives. Richard LeBaron ("Richard") pleaded guilty prior to
trial. Cynthia LeBaron ("Cynthia") also was involved in the
murders, but was given immunity in exchange for her testimony and
has been placed in the witness protection program.
3
themselves and their families from the Church's teachings and
membership.
A. THE CHURCH OF THE LAMB OF GOD
In the early 1950s-60s, Joel LeBaron ("Joel") founded a
religious sect which he named the "Church of the First Born of the
Fullness of Time." The religion practiced by Joel's organization
was based on various distortions of early Mormon teachings and,
according to Joel, "revelations from God." Joel's brother, Ervil,
was a member of Joel's church, but in 1971, the theological
differences which had developed between the two brothers led Ervil
to leave Joel's sect and form his own, which Ervil named the
"Church of the First Born of the Lamb of God." After that schism,
Ervil and Joel engaged in a protracted power struggle to control
the members and property of Joel's church; and in 1972, Ervil had
Joel killed. Ervil died in Utah State Prison in 1981, by which
time various members of his sect))the Church))had been associated
with nine murders in Mexico, California, and Utah.
The beliefs of the Church are set out in several publications,
the most notable of whichSQthe Book of the New CovenantSQErvil wrote
while incarcerated in Utah State Prison. According to these
teachings, the leader of the Church, known as the "Great Grand
Patriarch" or "Patriarch," is empowered to brand disobedient
members of the organization as "Sons or Daughters of Perdition,"
i.e., those who are "unredeemable." Being marked unredeemable is
tantamount to a death sentence, for the Church practices "blood
atonement," an archaic religious doctrine which is purported to
4
teach that unredeemable members of a religion can obtain eternal
salvation only through the shedding of their own blood.
Once the Patriarch pronounces a punishment, other members of
the Church are required to carry it out. The reward for carrying
out the Patriarch's directives is to share in the leadership in the
Kingdom of God; those who fail to do so, however, themselves become
children of perdition.
B. THE ORDER TO KILL ED, MARK, AND DUANE
While Ervil was still in prison, Mark left Utah for Texas and
then relocated in California, during which time, according to
Ervil, Mark was living in "rebellion."2 Mark had begun to question
some of Ervil's teachings, which led Ervil to pronounce:
There is a great controversy being caused by my servants Mark
Chynoweth . . . with the support of Ed Marston, and it is my
will, that if these . . . men will not repent immediately,
that they should be destroyed immediately; because they are
advantageous, and are seeking to destroy my little children,
even the little children of my great and beloved Prophet,
Seer, and Revelator . . . . [I]f they will not repent . . .
I now declare them to be outlaws, and I will require any man
who loves me, and who will have a crown at my right hand, to
kill them upon sight . . . .3
Apparently neither Ed nor Mark "repented," so Ervil continued to
proclaim that the two were Sons of Perdition, to be killed on
sight. At some point, Ervil's wrath turned to Duane, prompting
Ervil to decree that Ed could "be forgiven, only if he now shall
kill king cobra [Duane] and Mark Chynoweth."4 After Ed, Mark, and
2
Book of the New Covenant § 85, at 136.
3
Id. § 102, at 159.
4
Id. § 342, at 402; see id. § 369, at 423.
5
Duane learned of Ervil's various pronouncements,5 in particular the
one ordering Ed to kill Duane and Mark, these three decided to
reject the teachings of both Ervil and the Church in toto.
Ervil's successor, Aaron, also denounced Ed, Mark, and Duane
as "Sons of Perdition" because the three had chosen to disassociate
themselves from the Church. Although at various times Church
members openly discussed carrying out the Patriarchs' death
sentences, Ervil's dictates remained unfulfilled until 1988. At
that time, however, Aaron commanded that Ervil's prior edicts be
enforced, and he ordered members to execute Ed, Mark, and Duane.
C. THE KILLING OF ED, MARK, DUANE, AND JENNY
In May 1988, Heber masterminded an elaborate scheme to carry
out Ervil's and Aaron's directives. Heber planned to have the
three Sons of Perdition slain simultaneously; no small feat given
that Ed lived in Dallas, and Mark and Duane in Houston. The plan
included surveillance, disguises, communication equipment, and
stolen vehicles. Four Church members were assigned the task of
killing the three former members: Heber would kill Mark; Patricia
and Richard would kill Duane; and Barlow would kill Ed. Other
Church members, such as Natacia LeBaron ("Natacia") and Cynthia
would assist. Heber had anticipated that one or more of the
targeted former members might be accompanied, so he instructed the
assassins to kill all witnesses "over four years old."
Ed, Mark, and Duane were all in the appliance repair business,
each with his own company. Ed's and Duane's standard operating
5
See id. § 85, at 136.
6
procedures were to go personally to their clients' homes to pick up
appliances that needed servicing. Knowing this, Heber planned to
telephone Ed and Duane and arrange for each intended victim to go
to a different vacant house ostensibly to pick up an appliance
needing repair. At each such location, a Church member would be
waiting to kill the victim upon his arrival. In contrast, Mark had
his employees pick up his clients' appliances, so Heber elected
personally to kill Mark inside his own store.
Heber's plan was set in motion on the morning of June 27,
1988. Equipped with binoculars, Cynthia and Natacia parked in
front of Mark's place of business in Houston. When they saw Mark
arrive, they radioed Heber who was waiting by a telephone. Heber,
who was in Houston, then called Duane (also in Houston) and Ed (in
Dallas). Heber arranged for each of them to pick up an appliance
at a different vacant house at the same time later that same day.
At that appointed time, Heber positioned himself outside
Mark's business in Houston, made sure that Mark was there, then
radioed Cynthia (who was waiting in a car nearby) to "go for it."
Heber, dressed in a business suit, then walked into Mark's store
and shot him as he sat at his desk.
After receiving Heber's signal to "go for it," Cynthia called
Barlow (who was waiting at a pay telephone in Dallas) and told him
to execute the plan. Barlow proceeded to the vacant house in
Dallas where Ed was scheduled to pick up an appliance, waited for
Ed to arrive, and shot him when he did. A person who lived across
the street from that vacant house saw the assailant, whom she later
7
described as a young male in a "business-looking outfit."
Meanwhile, Patricia and Richard were in a black Silverado
truck ("Silverado"), cruising around the Houston neighborhood in
which was located the vacant house where Duane was to pick up an
appliance. When Patricia and Richard spotted Duane's pickup truck
in the driveway of that vacant house, they parked behind his truck.
Richard then walked up to the cab of the truck and shot Duane
several times. Observing that Jenny was in the cab of Duane's
truck, Richard shot her too, in compliance with Heber's
instructions. A person who lived directly across the street heard
a gunshot, turned toward the sound, and saw Richard firing into
Duane's truck. That person described the killer as "well dressed
in a business suit and tie," later confirming that the shooter's
vehicle was similar to the Silverado pictured in one of the
government's photographic exhibits.
After committing the four homicides, the perpetrators
dismantled their firearms and disposed of them. The four active
participants then reunited in Fort Worth, where they discussed the
killings among themselves.
D. THE APPREHENSION, ARREST, AND PROSECUTION OF THE DEFENDANTS
On July 1, 1988 (four days after killing Ed, Mark, Jenny, and
Duane), Heber, Patricia, and Barlow were arrested in Phoenix,
Arizona at the King's Inn Motel ("Motel") and charged with
automobile theft. A Phoenix officer had noticed the Silverado
parked at the Motel and discovered that the number on its license
plate matched the number of the license of a truck reported as
8
stolen in Texas.6 The police checked with the clerk at the Motel
to determine if anyone with Texas identification had registered at
the Motel and learned that a "Christina Adams" (later identified as
Cynthia) had registered for rooms 151 and 153 using a Texas
driver's license. The police ran a check of that license and
determined that it had not been issued to a Christina Adams.
The police watched rooms 151 and 153 and the stolen Silverado
for the remainder of the day, developing information that
constituted probable cause to arrest several of the Defendants,
including Richard and Patricia, as suspects in the theft of the
Silverado. The police subsequently arrested the Defendants in room
150 of the Motel after chasing Patricia, who by then was already
one of the suspects in the automobile theft, to the vicinity of
room 150. Observing suspicious activity in that room, the police
knocked on the door to ascertain whether Patricia had hidden there
to avoid capture. Remaining outside the threshold of the room when
the occupants opened the door to room 150, the police first
observed Richard, whom the police previously had linked to the
stolen Silverado. As Richard was a suspect in the automobile
theft, the police thought that they also might find Patricia))who
had just evaded apprehension and who also was linked to the stolen
vehicle))in the same room as Richard. The police therefore entered
room 150 without a warrant to look for Patricia, a fleeing
suspected felon, whereupon they saw her emerge from the restroom.
6
The police later discovered that the Silverado was stolen
from Euless, Texas, and that its plates were stolen from another
truck near Dallas, Texas.
9
After some preliminary questioning of the Defendants by the
police and a brief search of the rooms and automobiles in which the
Defendants had been observed by the police at various times, the
Defendants were arrested and transported to the police station to
be charged with automobile theft. When the police tried to
question Patricia, she requested a lawyer.
The next morning, the police executed search warrants on rooms
150, 151, and 153 from which several items of physical evidence
were obtained, including: three duplicate copies of the June 29,
1988 edition of the Dallas Times Herald in which the June 27, 1988
killings of Ed, Mark, Duane, and Jenny were reported; silicone
sealant (similar to that used in the stolen Silverado); disguises;
a list of scanner radio frequencies for the Dallas/Ft. Worth area;
a listing of specific radio monitor frequencies for the Houston
Police Department; a cache of weapons, including a holstered TARS
.38 special revolver loaded with five rounds of ammunition;
additional ammunition; speed loaders; shoulder holsters; gun
pouches; and a cleaning kit for a rifle.
Later that same morning, Patricia, Cynthia, and Jacqueline
were released from custody. Five days later, while still unaware
of any connection between the persons that they arrested at the
Motel and the homicides in Texas, the police released Heber and
Barlow from custody.
It was not until almost a week after the release of Heber and
Barlow that the police connected the suspects in the Arizona
automobile theft with the Houston homicides. That occurred when a
10
Houston homicide detective called the Phoenix police department
asking if they knew whether a "Mary June Whitt" had been seen in
the area. The Houston detective explained that Ms. Whitt was a
suspect in some homicides in Houston and that the Houston police
had reason to believe that she might then be in Phoenix.
One of the Phoenix detectives happened to recall the name
"Mary June Whitt" from an automobile theft investigation that he
had conducted the previous December. He remembered that two women,
"Pamela Monique Newman" and "Mary June Whitt," had been arrested in
a stolen vehicle in Colorado and were subsequently extradited to
Phoenix for prosecution. He had noticed that "Valerie Davis," one
of the women arrested at the Motel, resembled Pamela Monique
Newman. In a comparison of their fingerprints, the police
confirmed that "Pamela Monique Newman" was in fact "Valerie Davis,"
one of Patricia's aliases.
Shortly thereafter the Defendants were charged by sealed
federal indictment with nine counts, including murder for hire,7
witness tampering,8 and illegal use of a firearm in a violent
crime.9 The indictment was unsealed about a week later, a short
while after which the Defendants were transferred to federal
custody. They appeared before a magistrate judge in connection
7
18 U.S.C. § 371, see id. §§ 2, 1952(A) (aiding and abetting
murder for hire).
8
Id. § 1962(c); see id. § 1962(d) (conspiracy to witness
tamper).
9
Id. § 924(c); see id. § 2 (aiding and abetting use and
carrying of a firearm).
11
with the instant offenses, and a few days later the magistrate
judge denied pretrial release for all Defendants.
Approximately one month later a superseding indictment issued,
charging all Defendants with fourteen counts. This indictment
added counts charging obstruction of free exercise of religion10 and
RICO violations.11
A joint suppression hearing was held several weeks later,
during which all evidence proffered by the government was
determined to be admissible, with the exception of some spiral
notebooks that had been obtained without a warrant from room 150 at
the time the Defendants were arrested at the Motel. In addition,
the district court found admissible an oral confession made by
Patricia to Houston Homicide Detective John Burmester (the scene
investigator for the murders of Duane and Jenny) at Arizona's
Perryville State Prison ("Perryville"). At the time of their
interview, Patricia was incarcerated at Perryville serving a nine-
year sentence for automobile theft as a result of her arrest at the
Motel.
The Defendants were tried before a district court jury early
in January 1993. During that trial, Cynthia testified for the
prosecution in exchange for the government's grant of immunity. At
the close of the government's case, the Defendants made a motion
for judgments of acquittal, which the trial court denied. The
10
Id. § 247; see id. § 371 (conspiracy to obstruct); id. § 2
(aiding and abetting obstruction).
11
Id. § 1962(c).
12
Defendants reurged their motion at the close of all of the
evidence. Ultimately, the jury returned guilty verdicts against
all Defendants on all counts except Count 7 (aiding and abetting
Patricia in her use and carrying of a firearm). The court then
granted Defendants' motion for judgment of acquittal on the murder
for hire counts (Counts 1-4), concluding that the Defendants
obtained no pecuniary remuneration in consideration for the
killings. Each Defendant was sentenced to, inter alia, two 5-year
terms, two 20-year terms, and four life-terms, all to run
concurrently, plus five years supervised release. This appeal
followed.
II
ANALYSIS
Although we have carefully considered all assignments of error
advanced by Defendants, we discuss in detail only those we deem
especially significant. We address those seriatim.
A. INTERPRETATION OF 18 U.S.C. § 247
The Defendants argue that they were wrongly convicted for
violating 18 U.S.C. § 247, which makes criminal the obstruction of
persons in the free exercise of their religious beliefs. The
Defendants contend that § 247 is inapposite to their conduct,
because (1) the Church is not a religion, and (2) even if it were,
the Defendants did not obstruct the victims' "free exercise of
religion" as contemplated by the drafters of that statute.
1. The Church as a "Religion"
According to the Defendants, killing Ed, Mark, and Duane
13
because they left the Church could in no way be considered an
obstruction of the victims' free exercise of religion. This
contention is grounded in the assertion that the Church is not a
religion.
It cannot seriously be disputed that the Church constitutes a
religion for purposes of the Free Exercise Clause,12 from which the
redactors lifted the precise language now found in § 247. The
record is replete with evidence demonstrating that the Church is a
religion: It is an organization with a 30-year history of
religious teaching, an established following, recorded laws, and
religious philosophies, theologies and doctrines based on what it
claims are "revelations from God." The mere fact that the beliefs
of the Church may have derived from a perverse distortion of early
Mormon beliefs or that it is a creed not practiced by multitudes
does not prevent it from being classified as a "religion" for the
purpose of determining whether it is entitled to protection under
the Free Exercise Clause. The Supreme Court recently reaffirmed
that "religious beliefs need not be acceptable, logical,
consistent, or comprehensible to others in order to merit First
Amendment protection."13 As the Church is a religion within the
contemplation of the First Amendment, it is a religion for purposes
of § 247.
12
U.S. CONST. amend. I ("Congress shall make no law
respecting an establishment of religion, or prohibiting the free
exercise thereof . . . .").
13
Church of the Lukumi Babalu Aye v. City of Hialeah, 113 S.
Ct. 2217, 2225 (1993) (quoting Thomas v. Review Bd. of Ind.
Employment Security Div., 450 U.S. 707, 714 (1981)).
14
2. The Free Exercise of Religion
The Defendants further complain that the jury was improperly
instructed that, as used in § 247, "the free exercise of religion"
means, inter alia, "the victims' voluntary choice to discontinue
their membership in The Lamb of God,"14 thereby requiring that the
government prove only that the Defendants killed their victims
because they voluntarily chose to leave the Church. This was
error, claim the Defendants, as such evidence alone is insufficient
to obtain a conviction under § 247.
In an effort to bolster their argument, Defendants point to a
portion of the legislative history of the Act that provides:
Conviction under [§ 247], requires the prosecutor to show that
the defendant intentionally attempted or did obstruct another
from engaging in activities pursuant to that individual's
religious beliefs and that he or she knew that the person was
engaging in the activities pursuant to religious beliefs.15
Relying on this language, the Defendants contend that the
prosecution was required to adduce evidence that the Defendants
actually knew the current religious beliefs of the victims and
killed them to prevent their engaging in activities pursuant to
those beliefs. As the evidence is uncontroverted that the
Defendants did not know the victims' current religious preferences
or practices, conclude the Defendants, they could not be found
14
The court also described free exercise as encompassing (1)
"an individual's ability to freely and voluntarily choose what
religious tenets to believe or not believe," or (2) "an
individual's ability to act lawfully in conformity with his or
her religious beliefs."
15
S. REP. NO. 324, 100th Cong., 2d Sess. 1 (1988), reprinted
in 1988 U.S.C.C.A.N. 721, 724.
15
guilty of an offense under § 247. To the extent that there may be
doubt concerning the reach of that section, Defendants beseech us
to resolve that uncertainty in their favor by applying the rule of
lenity.16
At bottom, we are asked to determine whether § 247 encompasses
the acts for which these Defendants were convicted; namely, the
intentional killing of three individuals solely because they
decided to discontinue their association with and practice of a
particular religion and acted upon this decision by estranging
themselves from membership in that organization and ceasing to
observe and fulfill the tenets of their formerly espoused religion.
As this is an issue of statutory interpretation, our review is de
novo.17
In interpreting § 247, it is our task to give effect to the
intent of the Congress that enacted that statute. "To divine that
intent, we traditionally look first to the words of the statute
. . . ."18 If the language of § 247 is clear and unambiguous, then
our interpretative journey comes to an end, and we apply that plain
16
See United States v. Kozminski, 487 U.S. 931, 952 (1988).
17
United States v. Long, 996 F.2d 731, 732 (5th Cir. 1993).
18
United Steelworkers of Am. v. Weber, 443 U.S. 193, 253
(1979) (Rehnquist, J., dissenting); see Mackey v. Lanier
Collections Agency & Serv., Inc., 486 U.S. 825, 840 (1988) ("[W]e
must look at the language of [the statute] and its structure, to
determine the intent of the Congress . . . ."); American Tobacco
Co. v. Patterson, 456 U.S. 63, 68 (1982) ("As in all cases
involving statutory construction, `our starting point must be the
language employed by Congress,' and we assume `that the
legislative purpose is expressed by the ordinary meaning of the
words used.'" (quotations omitted)).
16
meaning to the facts before us to determine if the Defendants'
conduct was punishable under that section.19 Only if we find the
text of § 247 to be opaque or translucent, or even merely
ambiguous, must we attempt to divine congressional intent by
applying prescribed canons of statutory interpretation (including,
without limitation, a resort to the rule of lenity20 and legislative
history21).
Section 247 provides:
Whoever . . . intentionally obstructs, by force or threat of
force, any person in the enjoyment of that person's free
exercise of religious beliefs, or attempts to do so; shall .
. . . if death results, [be punished by] a fine . . . and
imprisonment for any term of years or for life, or both
. . . .22
The government established at trial that the Defendants killed Ed,
Mark, and Duane because those three decided to estrange themselves
19
Connecticut Nat'l Bank v. Germain, 112 S. Ct. 1146, 1149
(1992) ("When the words of a statute are unambiguous, then . . .
`judicial inquiry is complete.'"); see American Tobacco Co.,
456 U.S. at 68 ("Thus `[a]bsent a clearly expressed legislative
intention to the contrary, the language must ordinarily be
regarded as conclusive.'" (quotation omitted)).
20
NOW, Inc. v. Scheidler, 114 S. Ct. 798, 806 (1994) ("[T]he
rule of lenity applies only when an ambiguity is present . . .
."); see United States v. Knox, 32 F.3d 733, 751 n.15 (3d Cir.
1994) ("[T]he application of the rule of lenity is not dependent
whatsoever on whether there have been successful prosecutions
under the statute at issue."); petition for cert. filed, 63
U.S.L.W. 3181 (U.S. Sept. 7, 1994) (No. 94-413).
21
See Toibb v. Radloff, 501 U.S. 157, 162 (1991) ("`Where .
. . the resolution of a question of federal law turns on a
statute and the intention of Congress, we look first to the
statutory language and then to the legislative history if the
statutory language is unclear.'") (quoting Blum v. Stenson,
465 U.S. 886, 896 (1984))).
22
18 U.S.C.A. § 247(a)(2), (c)(2) (West 1994).
17
from the beliefs of and membership in the Church and carried out
that decision. This fact finding is not strenuously contested on
appeal; neither could it be seriously questioned, as it is
supported by overwhelming evidence in the record. To determine
whether the Defendants' conduct is punishable under § 247,
therefore, we must answer the extremely narrow question, "is the
decision, and subsequent implementation of the decision, to
disassociate oneself from the beliefs of and membership in a
particular religious faith a manifestation of `the enjoyment of the
free exercise of religion?'" As we are convinced that it is, we
conclude that the Defendants were properly convicted of violating
§ 247.
The concept of "the free exercise of religion" is indeed a
frequent flyer in American jurisprudence. It was incorporated into
the First Amendment; and in the ensuing 200 years the courts of our
land have developed an entire body of "free exercise" jurisprudence
which has delineated many of the metes and bounds of the conduct
embodied in that notion. When Congress enacts laws, it is presumed
to be aware of all pertinent judgments rendered by our branch.23
23
Evans v. United States, 112 S. Ct. 1881, 1885 (1992)
("`Where Congress borrows terms of art in which are accumulated
the legal tradition and meaning of centuries of practice, it
presumably knows and adopts the "cluster of ideas attached to
each borrowed word in the body of learning from which it was
taken and the meaning its use will convey to the judicial mind
unless otherwise instructed."'" (quotations omitted)); Lorillard
v. Pons, 434 U.S. 575, 583 (1978) ("`[W]here words are employed
in a statute which had at the time a well-known meaning at common
law or in the law of this country they are presumed to have been
used in that sense unless the context compels to the contrary.'"
(quotation omitted)).
18
So when Congress enacted § 247, it must have intended for "the free
exercise of religion" as used in that section to encompass the
entire panoply of activities which the judicial branch has
previously ascribed to that notion.
The Supreme Court has recognized that one such aspect of "the
free exercise of religion" includes the negative as well as the
positive: It is the right of an individual to practice the
religion of his choice or to be free from the practice of religion
altogether.24 The "set" of the right to be free from all religion
logically includes the "sub-set" of the right to be free from a
particular religion))such as the teachings of and affiliation with
the Church in the instant case. Ed, Mark, and Duane were killed
for the sole reason that they attempted to disassociate themselves
from a particular religion, i.e., the Church. It follows
inescapably that by intentionally killing Ed, Mark, and Duane
solely because they made this purely religious choice, the
Defendants intentionally obstructed by force the three victims'
enjoyment of their free exercise of religious beliefs))the right
freely to choose not to associate with the Church, not to believe
in its tenets, and not to join in fellowship with its members.
Thus Defendants' actions in assassinating their former co-
religionists fall squarely within the ambit of § 247.
When viewed through the lens of traditional free exercise
24
Wallace v. Jaffree, 472 U.S. 38, 53-54 (1985) ("[T]he
court has unambiguously concluded that the individual freedom of
conscience protected by the First Amendment embraces the right to
select any religious faith or none at all." (emphasis added)).
19
jurisprudence, the plain language of § 247 manifests Congress'
specific intent to make criminal, inter alia, the conduct at issue
here: the killing of Ed, Mark, and Duane for the sole reason that
they chose to exercise their right to extricate themselves from the
beliefs, practices, and fellowship of the Church. As the plain
language of § 247 compels the conclusion that the conviction of
these Defendants under that section was proper, we need not reach
the Defendants' contention that the legislative history compels a
different interpretation. We find comfort in that fact, however,
thatSQcontrary to Defendants' contentionSQthe history of the Act
when read in its entirety completely supports the result that we
reach today.25
25
First, as the legislative history recommended, the
government did prove that Defendants intentionally obstructed Ed,
Mark, and Duane from engaging in activities pursuant to their
religious beliefs and that Defendants knew that the victims were
engaging in those activities pursuant to religious beliefs. See
S. REP. No. 324, 100th Cong., 2d Sess. 1 (1988), reprinted in
1988 U.S.C.C.A.N. 721, 724. In this case, however, the
"religious activity" was the victims' decision to leave the
Church and all of its teachings and practices. The Defendants
intentionally killed Ed, Mark, and Duane because the Defendants
knew that the victims had left the flock of the Lamb of God, no
longer believed in the tenets of that faith, and were engaging in
activities (estrangement from the Church) pursuant to those
religious beliefs.
Second, Defendants engaged in the very ill that § 247 was
enacted to cure. In its report, the Senate Judiciary Committee
cited as the catalyst for this legislation the "growing number of
incidents of religiously motivated violence." Id. at 722. The
evidence in the record conclusively establishes that the slayings
of Ed, Mark, and Duane were religiously motivated. Although the
Senate Report cited recent studies reporting increased violence
against certain religious organizations perpetrated by particular
so-called "hate-groups," we do not consider it significant that
Congress failed to identify the Church by name, or for that
matter failed to identify by name the countless other such small
sects and cults that might promote violence against persons who
20
B. OTHER ERRORS ASSIGNED
The Defendants challenge several other aspects of their
multiple convictions, including, inter alia, the sufficiency of the
evidence, several of the district court's instructions to the jury,
and the admission at trial of various items of evidence. After
thoroughly reviewing the record and carefully considering the
briefs and oral arguments of able counsel, we are firmly convinced
that, although the arguments presented are not frivolous, they
present no reversible error. In fact, only one such contention
merits further attention))albeit brief.
Patricia argues that her oral confession, given to Burmester
while she was confined in Perryville, was not made voluntarily and
that the introduction of the substance of that statement into
evidence violated her constitutional rights. We are not convinced.
The record makes clear that Burmester went to Perryville to
discuss the 1988 homicides with Patricia, and that he sought to
establish a congenial, supportive rapport with Patricia to
encourage her to speak freely with him.26 But after carefully
freely exercise their right to choose to practice another
religion))or, as here, to discontinue worshiping with those sects
or cults. The convictions of Defendants for violating § 247 were
entirely proper, as they are entirely consistent with the text,
purpose, and even the legislative history of that law.
26
There is nothing inherently wrong with an officer
attempting to create a favorable climate for confession by
attempting to strike an emotional chord with a defendant, and
that is all that Burmester did here. See, e.g., United States v.
Rojas-Martinez, 968 F.2d 415, 418 (5th Cir.) ("Expressions of
sympathy by an officer are not [impermissibly] coercive."), cert.
denied, 113 S. Ct. 828 (1992); Hawkins v. Lynaugh, 844 F.2d 1132,
1140 (5th Cir.) (interviewer's efforts to invoke emotional
response, standing alone, not offensive to due process), cert.
21
scrutinizing the totality of the circumstances relevant to
Patricia's confession,27 we do not believe that Patricia was
subjected to such psychological coercion that her will was
overborne, rendering her statement involuntary. On this point, we
find particularly probative Patricia's own words in a message to
her brother, taped privately immediately after she spoke with
Burmester. In that conversation she is heard to confide that she
had confessed "of my own free will, and nobody forced me to do it."
Like the trial judge and the jury before us, we believe her. In
the end, we must ascertain whether the means used to obtain the
confession were "compatible with a system that presumes innocence
and assures that a conviction will not be secured by inquisitorial
means [or] whether [this] defendant's will was in fact overborne."28
We cannot conclude that the means used to convince Patricia to talk
to Burmester were incompatible with our system or that Patricia's
will was in fact overborne; rather, we conclude that her statement
denied, 488 U.S. 490 (1988); Bryant v. Vose, 785 F.2d 364, 368
(1st Cir.) (confession voluntary even if motivated by police
chief's observations that triggered emotional response of sorrow
and remorse in suspect), cert. denied, 477 U.S. 907 (1986).
Maybe, as she herself testified, Patricia confessed because
she felt "hopeless" and "disillusioned" when faced with the
repercussions of her actions; but a defendant's confession is not
involuntary merely because it was made once the defendant finally
confronted the dire consequences that flowed from her previous
criminal conduct.
27
Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)
(listing factors relevant to a determination of voluntariness).
28
Miller v. Fenton, 474 U.S. 104, 116 (1985).
22
was voluntarily made.29
Neither were Patricia's constitutional rights violated by the
introduction of her confession into evidence against her.30 The
record makes clear that Patricia voluntarily and intelligently
waived her privilege against self incrimination and her right to
counsel.31
Neither has Patricia proved a violation of the rule
established in Edwards v. Arizona,32 which forbids a law enforcement
official's reinitiating discussions with a suspect after that
suspect has invoked the right to counsel. Patricia had twice
previously requested counsel: once while being detained in Chicago
in 1989 on alien smuggling charges,33 and again on July 1, 1988 when
she was arrested at the Motel for automobile theft. But in this
29
For many of the same reasons, we agree with the district
court that Patricia's confession also was voluntary as required
by 18 U.S.C. § 3501.
30
Patricia was interrogated by Burmester while she was in
custody and after the indictment naming her as a defendant in the
instant offenses had issued; Patricia therefore had both a Fifth
and Sixth Amendment right to counsel. Michigan v. Jackson, 475
U.S. 625, 629-30 (1986); United States v. Cruz, 22 F.3d 96, 98
n.7 (5th Cir.) (per curiam), cert. denied, 115 S. Ct. 207 (1994).
31
We note that Patricia confessed only after she was advised
of her rights, read those rights aloud, responded that she
understood those rights, and then signed an advice of rights card
in the presence of two witnesses, on which card she acknowledged
that she understood her rights and waived them voluntarily.
32
451 U.S. 477 (1981). Patricia did not allege an Edwards
violation below, thus our review on appeal is limited to plain
error. United States v. Olano, 113 S. Ct. 1770, 1776 (1993).
33
Patricia was charged in Illinois federal court with
possession of false documents, in violation of 18 U.S.C.
§ 1028(a)(4), and then released.
23
case, neither of these two previous invocations are sufficient to
form the basis of an Edwards claim.
Patricia was not indicted for the federal offenses at issue
here until August 1992, so her requests for legal assistance prior
to that date can be relied upon to argue only that her Fifth
Amendment right to counsel was violated.34 Although Burmester did
reinitiate contact with Patricia after she requested counsel in
1988 and 1989, the record is clear that Patricia had been released
from custody following each of those previous confinements. Other
circuits have held that if, after invoking her Fifth Amendment
right to counsel, a suspect is released from custody, then the
concerns that prompted Edwards' prophylactic rule are sufficiently
minimized that any Edwards violation allegedly founded on those
prior requests simply "dissolves."35 We find the logic embodied in
these decisions to be persuasive and embrace it today.36 The
34
"The Sixth Amendment [right to counsel] is offense-
specific," McNeil v. Wisconsin, 501 U.S. 171, 175 (1991); see
United States v. Fairman, 813 F.2d 117, 121 (7th Cir.), cert.
denied, 483 U.S. 1010 (1987), and vests only when one becomes
"the accused," Escobedo v. Illinois, 378 U.S. 478, 485 (1964);
United States v. Gouveia, 467 U.S. 180, 188 (1984).
35
Dunkins v. Thigpen, 854 F.2d 394, 397 (11th Cir. 1988) ("a
break in custody dissolves a defendant's Edwards claim"), cert.
denied, 489 U.S. 1059 (1989); United States v. Hines, 963 F.2d
255, 257 (9th Cir. 1992) ("Edwards rule does not apply to
suspects who are not in continuous custody between the time they
request counsel and the time they are reinterviewed"); see, e.g.,
Fairman, 813 F.2d at 125; United States v. Skinner, 667 F.2d
1306, 1309 (9th Cir. 1982), cert. denied, 463 U.S. 1229 (1983);
cf. McFadden v. Garraghty, 820 F.2d 654, 661 (4th Cir. 1987)
(citing with approval Skinner's proposition that there can be no
Edwards violation if defendant is not in continuous custody).
36
Patricia also claims that she repeatedly requested counsel
during her August 27, 1992 discussion with Burmester, but before
24
district court did not err in ruling that Patricia's oral
confession was admissible.
Again, finding no reversible error, the convictions and
sentences of all Defendants are, in all respects,
AFFIRMED.
she confessed. In the suppression hearing, however, the district
court found otherwise. That court found more believable the
testimony of Burmester, another officer, and a tape recording of
those discussions))all of which support the conclusion that no
such requests were made. The record does not reflect that this
factual finding was clearly erroneous.
25