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United States v. Preston

February 27, 2013

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
TYMOND J. PRESTON, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the District of Arizona G. Murray Snow, District Judge, Presiding D.C. No. 3:10-cr-08026-GMS-1

The opinion of the court was delivered by: Farris, Senior Circuit Judge

FOR PUBLICATION

Argued and Submitted November 9, 2012--San Francisco, California

Filed February 5, 2013; Amended February 27, 2013

Before: Jerome Farris, John T. Noonan, and Jay S. Bybee, Circuit Judges.

Order; Opinion by Judge Farris; Dissent by Judge Noonan

SUMMARY*fn1

Criminal Law

The panel affirmed a conviction for abusive sexual contact and remanded for resentencing in a case in which the district court imposed a lifetime term of supervised release and several conditions of supervised release.

The panel held that the defendant's confession was properly admitted. The panel wrote that the defendant's diminished mental capacity alone is not enough to render his confession involuntary, and that the length, location, and continuity of the interview do not support a conclusion of involuntariness.

The panel held that the defendant validly waived his rights to a jury trial and an indictment, and the district court did not plainly err by accepting the defendant's counsel's waiver of his right to confrontation.

The panel rejected the defendant's contention that the district court abused its discretion in admitting expert testimony about the DNA evidence used to implicate him.

The panel held that the district court properly admitted the testimony of the victim's grandmother and uncle under the excited utterance exception to the general hearsay exclusion. The panel held that the improper admission of an investigating officer's hearsay testimony was cumulative to admissible testimony and therefore harmless. The panel rejected the defendant's argument that prosecutorial misconduct materially affected the fairness of the trial.

The panel rejected the defendant's sufficiency-of-the- evidence challenge to the conviction.

The panel held that the district court's imposition of a lifetime term of supervised release was procedurally sound. Regarding substantive reasonableness, the panel could not, on this record, hold that the district court abused its discretion, but suggested that the district court, in its own discretion, consider the prosecutor's recommendation of an alternative sentence, whereby the defendant, who is in his early twenties, may satisfy some requirements to have the term shortened.

The panel directed the district court on remand to reconsider a supervised release condition requiring plethysmograph testing as to which the district court failed to make the requisite specific findings.

The panel directed the district court to clarify a condition that the defendant "shall not possess, view, or otherwise use any other material that is sexually stimulating, sexually oriented, or deemed to be inappropriate by the probation officer and/or treatment provider."

The panel requested that the district court include a mens rea requirement in a condition prohibiting the defendant from being "in the company of . . . children under the age of 18 without prior approval of [his] probation officer." The panel also instructed the district court to explain adequately its reasons for imposing this condition, or to narrow it appropriately, given that the condition infringes on a significant liberty interest by prohibiting the defendant from associating, without the permission of his probation officer, with any children of his own he may have in the future.

Judge Noonan dissented because the only evidence against the defendant is a coerced confession. He also wrote that he would ban the plethysmograph procedure altogether.

OPINION

Tymond Preston appeals his conviction for Abusive Sexual Contact in violation of 18 U.S.C. §§ 1153 and 2244, and contests the portion of his sentence imposing a lifetime term of supervised release and several conditions of his supervised release.

After a minor's allegations of sexual assault and an investigation, Preston was indicted for Aggravated Sexual Abuse. The government later agreed to dismiss the indictment and filed an information charging Preston with Abusive Sexual Contact. Preston was convicted after a bench trial.

I.

At some time in the evening on Wednesday, September 23, 2009, TD*fn2 , an eight-year-old boy, entered Tymond Preston's home; Preston was eighteen. TD and Preston were neighbors and relatives, though their families were involved in a feud. What happened inside Preston's house, as well as the exact time of the event, are disputed. According to the prosecution, Preston placed a condom on his penis and inserted it into TD's anus for several seconds before TD ran out the door and began to cry. The defense expresses doubt that this assault occurred. While the investigating agents believed that the assault took place around 6:30 p.m., the defense argues that it occurred earlier, if at all, relying in part on a clerical error made by a hospital nurse who wrote "16:30" on one of her reports but really meant to write "18:30"; she simply confused the military time conversion.

After exiting Preston's house in tears, TD joined his two young cousins. The three boys entered TD's house at around 8:00 p.m., all crying and visibly upset. TD's grandmother asked him why he was upset and he replied that his "butt" hurt because Preston had put his penis in his "butt." TD's grandfather called the police to report the incident, and the police advised him to take TD to the hospital. On the way to the hospital, TD refused to sit "because his butt was hurting." At the hospital, an officer arranged for TD's family to take him to the Safe Child Center at the Flagstaff Medical Center the following day.

TD met with a forensic interviewer at the Safe Child Center, who gave TD an opportunity to communicate what had happened to him. TD repeated his statement that "[Preston] put his penis in my butt and it hurts." When pressed for more details, TD told the interviewer a long and convoluted story involving multiple assaults by Preston--including statements that Preston had ejaculated onto his shirt and mouth, neither of which was evidenced in TD's subsequent examination--, police chases, helicopters, monster trucks, and other apparently fabricated events. Notably, the story included TD's account of Preston sexually assaulting TD's sister, specifically "[t]rying to fuck her butt," and TD's account of his own use of throwing knives to attack Preston and "robbers"--none of which is corroborated by additional evidence. According to the forensic interviewer, children commonly use diversionary techniques to avoid providing details about their sexual assault, and these techniques include projecting their victimization onto another person and describing acts of aggression against their attackers.

While at the Safe Child Center, a nurse practitioner conducted a "head-to-toe" medical examination of TD. TD told the nurse that "[Preston] put his dick in my butt," that Preston put on a "dick wearing," which the nurse took to mean a condom, and that the condom "got white stuff on it. [Preston] threw it away." The nurse noted that TD had no body surface injuries, complained of pain when she examined his anus, and had a "normal genital and anal exam," though the nurse noted that a "normal exam does not confirm nor negate the possibility of abuse."

Two agents began an investigation and drove to Preston's house to interview him. They approached Preston outside of his home, told him that they were there to discuss the allegations of sexual assault, and engaged him in a forty- minute, tape-recorded interview. Other people familiar to Preston were nearby during the interview. The agents informed Preston that he was not under arrest and was free to leave. Preston appeared calm throughout the interview and seemed to understand the agents' questions. Although the alleged assault took place on Wednesday, September 23, the agents variously referred to the date of the incident as the 23rd, or Friday, or both. When asked if he was at home on Friday, Preston replied that he was not at home and "was around downtown." Preston was, in fact, not home that Friday. The agents used such tactics as telling Preston that "six people over there" could place TD at Preston's home on the day of the incident, telling him about other evidence such as "forensic exams [and] interviews" that could be used, and asking him if this was a "one-time thing" or if he "prey[ed] on little kids." Preston still denied having done anything to TD. Preston also claimed that he could not remember "Friday" because he suffered from "short-term memory loss," telling the agents, "sometimes I go crazy." Preston claimed, "It's just like I have problems with my head, like a tumor." One of the agents asked him, "You have a tumor?" and Preston responded, "Yeah." An agent then asked if he was disabled, and Preston asked the agent to explain what "disabled" means. The agent explained what he meant by disabled--whether Preston was "not able to take care of" himself or get a job--and Preston replied that he had been removed from school for his behavior and was not allowed back.

The agents continued their questioning and Preston kept denying the accusations. One agent offered Preston the chance "to sit in the [agents'] vehicle and talk about it away from . . everybody." Preston declined. They again reminded Preston that he was not under arrest and was free to leave. They told Preston that he seemed like a "pretty good dude" and that if he felt sorry, he should confess. They also told Preston, "We don't tell this to anybody. It stays with the folder, and it stays with the U.S. Attorney's Office and that's it." Preston admitted that TD came into his house that day, but still insisted that he "didn't do nothing" and suggested that someone was trying to "frame" him. Finally, the agents again informed him that their "previous investigation" revealed that "[s]omething did happen," and when they asked if he used a condom, he nodded his head and said, "That's it. Just came in, and it just happened." The agents then asked Preston a series of questions about the event. To many of these questions, like "He pulled his pants down? And then what did he say?" and "You just unzipped your zipper?" Preston would respond, "I don't know" and claim that he could not remember the events. The agents asked many leading questions, for example, "did he pull his pants down or what did he do?" and "did he put the condom on or did you?" The agents asked Preston, "Did you just put your--put your penis in all the way or just a little bit?" to which he responded, "Just a little bit." He admitted that he put his penis in TD's anus for "five, six seconds . . . then [TD] went out . . . said, I'm going to tell on you, and then he just fucking started crying." He also claimed that he did not ejaculate. When asked why he did it, Preston claimed that he did not have a sexual "urge" to do it, and that TD was the one who came onto him; he claimed that TD was "always saying . . . suck my dick . . . and he says it to all these other kids, too."

The agents then asked Preston if he was sorry for what he had done to TD. When he said that he was, the agents told him, "[U]sually what we do is we write a statement and like if you wanted to say you're sorry or something like that, you could . . . definitely do that, and we can provide that to him." The agents asked Preston if they could "just summarize what [Preston] . . . told [them]." At this point, the agents realized that the alleged incident had not occurred on Friday and erroneously changed the day in their summary to Thursday, but correctly stated that it was the 23rd of September. The agents wrote down a summary of the events. They asked Preston to repeat his account and included what Preston could confirm happened and left out that which Preston claimed he could not remember. They explained that they were "not going to put anything that [he didn't] want [them] to put in," and that they were "going to have [him] sign [it]." They then gave it to Preston to read over and told him that he could "change anything [he] want[ed]." Preston then signed the statement without making changes and the agents left without placing him under arrest.

Preston was initially charged by indictment with Aggravated Sexual Abuse, for which the mandatory minimum prison sentence is thirty-years. Negotiations between Preston, his attorney, and the government led to an agreement that Preston would waive his rights to a jury trial and to an indictment if the government would reduce his charge to the lesser offense of Abusive Sexual Contact, which carries no maximum prison sentence, and would recommend that he receive no more than a fifteen-year sentence. Preston and his attorney signed and filed a waiver of indictment and a waiver of jury trial, both of which stated that Preston had been advised of his rights and agreed to waive them in open court. Additionally, the district court conducted a colloquy in open court to determine whether Preston understood the rights that he waived. The judge, with assurances from Preston's attorney, concluded that Preston understood his rights.

The district judge conducted a three-day bench trial and at its conclusion found Preston guilty of the charge. The court relied on Preston's confession, DNA evidence taken from TD's underwear and an expert witness's analysis of the DNA, TD's statements to his grandmother, and the testimony of TD's forensic interviewer and the nurse who conducted his medical examination. TD did not testify at the trial, though his recorded statements were admitted by stipulation.

The court sentenced Preston to fifty-months' imprisonment, a lifetime term of supervised release, and, inter alia, the conditions that:

(1) "You shall attend and participate in plethysmograph testing," (2) "You shall not possess, view, or otherwise use any other material that is sexually stimulating, sexually oriented, or deemed to be inappropriate by the probation officer and/or treatment provider," and (3) "You shall not be in the company of or have contact with children under the age of 18 without prior approval of the probation officer."

II.

Preston raises several issues in challenging his conviction and sentence. Preston first argues that his confession was involuntary and thus improperly admitted at trial. After examining the totality of the circumstances, we conclude that the confession was properly admitted. Preston also challenges the validity of his waiver of his rights to a jury trial, indictment, and confrontation. We hold that Preston validly waived his rights to a jury trial and an indictment, and the district court did not plainly err by accepting Preston's counsel's waiver of his right to confrontation. We reject Preston's contention that the trial court abused its discretion in admitting expert testimony about the DNA evidence used to implicate him.

We hold that the district court properly admitted the testimony of TD's grandmother and uncle under the excited utterance exception to the general hearsay exclusion. The testimony of Officer Butler was not properly admitted at trial, but its admission was harmless error. We reject Preston's argument that prosecutorial misconduct materially affected the fairness of the trial. Preston also argues that the trial court relied on insufficient evidence. We reject the argument. Since certain conditions of Preston's supervised release must be remanded to the district court for reconsideration, we do not rule on the question of the duration of the supervision.

III.

We review de novo whether a confession was voluntary and for clear error the district court's factual findings underlying its determination of voluntariness. United States v. Gamez, 301 F.3d 1138, 1144 (9th Cir. 2002).

"Involuntary or coerced confessions are inadmissible at trial because their admission is a violation of a defendant's right to due process." Brown v. Horell, 644 F.3d 969, 979 (9th Cir. 2011). "[C]ourts look to the totality of circumstances to determine whether a confession was voluntary." Withrow v. Williams, 507 U.S. 680, 693 (1993). Factors to be considered in this analysis include "the degree of police coercion; the length, location and continuity of the interrogation; and the defendant's maturity, education, physical condition, mental health, and age." Brown, 644 F.3d at 979 (citing Withrow, 507 U.S. at 693-94). Ultimately, the determination to be made is whether the "suspect's will was overborne." Haynes v. Washington, 373 U.S. 503, 513-14 (1963).

"[C]oercive police activity is a necessary predicate to the finding that a confession is not 'voluntary.'" Colorado v. Connelly, 479 U.S. 157, 167 (1986). "Coercive police activity can be the result of either 'physical intimidation or psychological pressure.'" Brown, 644 F.3d at 979 (quoting Townsend v. Sain, 372 U.S. 293, 307 (1963)). Here, the agents did not threaten Preston physically nor use any improper interview techniques to apply "psychological pressure." See Brown, 644 F.3d at 979. The interview lasted about forty-minutes, took place outside of Preston's residence, others were nearby, Preston was told multiple times that he was not under arrest and was free to leave, Preston was not physically restrained, and the agents did not arrest Preston at the conclusion of the interview. Preston's assertion that the agents' offer to speak inside their vehicle "subtly threatened his physical freedom" is unfounded; the agents offered this opportunity to allow Preston to "talk about it away from . . . everybody," Preston declined the offer, and the agents reminded Preston immediately thereafter that he was not under arrest.

There is no doubt that the agents continued to try to obtain a confession from Preston after he denied the incident with TD. However, accusing a suspect of lying "does not automatically render the questioning coercive, as an interrogator can legitimately express his disbelief at a defendant's story in order to elicit further comments or explanations." United States v. Wolf, 813 F.2d 970, 975 (9th Cir. 1987).

Nor is there any doubt that the agents confused the dates during the course of the interview. However, this was not a ploy to confuse Preston, but was a genuine mistake on the part of the investigating agents; the agents properly referred to the incident as having occurred on September 23 and eventually tried to rectify the mistake during their interview with Preston, though once again they stated the wrong day. This mistake did not appear to confuse Preston, who continued to deny having been home on Friday but eventually acknowledged the incident to which the agents were referring. It would be illogical to expect Preston to correct the agents' asserted date of an event he claimed never occurred, and by the time he began to confess, differentiating between a Wednesday and a Friday would not have been at the forefront of his thoughts.

The agents proceeded with their interview by using such tactics as telling Preston that other evidence could implicate him, making it seem as though confessing could minimize the consequences of his crime, and asking Preston suggestive questions. None of these tactics, however, rises to a constitutional violation. The agents did not use "false evidence ploys," as implied by Preston. The agents referenced witnesses that could place TD at Preston's home on the day of the incident, interviews implicating Preston, and forensic examinations that could be conducted to determine what had occurred. There were several people who could place TD at Preston's home on the day of the incident, the agents had reports of the incident from other interviews, and a forensic examination of TD could be conducted, as it later was. Even if this evidence was misleading, this is not enough to amount to coercion. See Pollard v. Galaza, 290 F.3d 1030, 1034 (9th Cir. 2002) ("[M]isrepresentations made by law enforcement in obtaining a statement, while reprehensible, does not necessarily constitute coercive conduct."). Similarly, the agents' statements to Preston that his confession could stay between them and the United States Attorney, and that they could possibly get help for him if he confessed, were not improper. Agents may use such tactics to induce a confession. See United States v. Coleman, 208 F.3d 786, 791 (9th Cir. 2000) (Agents' promise that they could "tell the prosecutor to give [the suspect] little or no time" did not establish involuntariness). Finally, the agents' use of suggestive questions was not improper. It is not reasonable to expect a person suspected of perpetrating a serious crime to willingly provide a narrative of his criminal action. See Doody v. Ryan, 649 F.3d 986, 1021 (9th Cir. 2011) ("We recognize and acknowledge that police officers are entitled to use, and do use, a variety of techniques to interrogate suspects."); Cunningham v. City of Wenatchee, 345 F.3d 802, 810 (9th Cir. 2003) (finding that "continuing to question a suspect after the suspect claims he is innocent does not constitute coercion and is often necessary to achieve the truth," and though the questions may have "unsettled" the suspect, "mere emotionalism and confusion do not invalidate confessions"). Preston's denial of some suggestions by the agents and his acceptance of others suggests that his will was not overborne by the agents' strategy. Preston also provided the agents with additional facts that were not suggested by their leading questions; for example, his statements regarding how long he placed his penis in TD's anus and TD's reaction thereafter.

Further, tactics used to obtain a confession are only a factor to be weighed when examining the totality of the circumstances. Brown, 644 F.3d at 979. The length, location, and continuity of the ...


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