United States v. Barlow

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