751 F.3d 1008 (9th Cir. 2014), 11-10511, United States v. Preston

Docket Nº:11-10511
Citation:751 F.3d 1008
Opinion Judge:BERZON, Circuit Judge:
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TYMOND J. PRESTON, Defendant-Appellant
Attorney:Professor Keith Swisher (argued), Phoenix, Arizona, for Defendant-Appellant. Mark S. Kokanovich (argued), Michael T. Morrissey and Bridget S. Bade, Assistant United States Attorneys for the District of Arizona; Ann Birmingham Scheel, Acting United States Attorney for the District of Arizona; and ...
Judge Panel:Before: Alex Kozinski, Chief Judge, and Stephen Reinhardt, John T. Noonan, Sidney R. Thomas, Susan P. Graber, Kim McLane Wardlaw, Ronald M. Gould, Richard A. Paez, Marsha S. Berzon, Morgan Christen and Paul J. Watford, Circuit Judges. Opinion by Judge Berzon; Concurrence by Judge Graber; Concurre...
Case Date:May 12, 2014
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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751 F.3d 1008 (9th Cir. 2014)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

TYMOND J. PRESTON, Defendant-Appellant

No. 11-10511

United States Court of Appeals, Ninth Circuit

May 12, 2014

Argued and Submitted En Banc, San Francisco, California December 10, 2013

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

Professor Keith Swisher (argued), Phoenix, Arizona, for Defendant-Appellant.

Mark S. Kokanovich (argued), Michael T. Morrissey and Bridget S. Bade, Assistant United States Attorneys for the District of Arizona; Ann Birmingham Scheel, Acting United States Attorney for the District of Arizona; and Karla Hotis Delord, Acting Deputy Appellate Chief for the District of Arizona, Phoenix, Arizona, for Plaintiff-Appellee.

Before: Alex Kozinski, Chief Judge, and Stephen Reinhardt, John T. Noonan, Sidney R. Thomas, Susan P. Graber, Kim McLane Wardlaw, Ronald M. Gould, Richard A. Paez, Marsha S. Berzon, Morgan Christen and Paul J. Watford, Circuit Judges. Opinion by Judge Berzon; Concurrence by Judge Graber; Concurrence by Judge Gould.

OPINION

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BERZON, Circuit Judge:

Today we consider the voluntariness of a confession given by Tymond Preston, an intellectually disabled eighteen-year-old. To elicit this confession, the police, among other tactics, repeatedly presented Preston with the choice of confessing to a heinous crime or to a less heinous crime; rejected his denials of guilt; instructed him on the responses they would accept; and fed him the details of the crime to which they wanted him to confess. Under the totality of the circumstances, including Preston's intellectual disability, we conclude that the confession that resulted from this questioning was involuntarily given and should not have been admitted at trial.

I

Background

A. The Accusation

At the time of the underlying events, Tymond Preston was eighteen years old. Preston has an IQ of sixty-five, which the Supreme Court recognizes as within the range of intellectual disability.1 See Atkins v. Virginia, 536 U.S. 304, 309 n.5, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (describing an IQ below seventy-five as within the range of mental retardation).2 He attended special education classes beginning in elementary school, and did so until he dropped out of high school. Preston's mother said that a doctor told her that Preston had a " small brain, like a five-year-old." Psychological evaluations conducted during the course of this litigation show that Preston has " exceptionally limited linguistic ability," and " significant problems with verbal communication and comprehension." 3 The district court found that he had " deficits in general linguistic and academic skills and low IQ." Before the offense addressed in this appeal, Preston had been arrested twice for minor juvenile offenses but had never been convicted of any offense or adjudicated delinquent.

Preston lived with his mother and father on the Navajo Nation. An extended family

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of relatives, including his paternal aunt, resided next door. The neighboring households had a long-standing feud. As recounted by its participants, the feud took some unusual turns. For example, Preston told investigators that the neighbors had used " witchcraft" to paralyze his father for three months.

Some time on Wednesday, September 23, 2009, Preston's eight-year-old neighbor -- a child in the household with whom Preston's family was feuding, and the grandchild of Preston's aunt -- entered and later left Preston's house. That evening, the child reportedly told his grandparents and uncle that Preston " 'put his pee-pee in [my] butt,'" and that " his butt was hurting." The grandparents called the police.

When asked about this assertion the next day by Carli Moncher, a forensic interviewer for the Safe Child Center at Flagstaff Medical Center, the child spun a lengthy, fantastical, largely incomprehensible narrative. The tale, in brief, was: Preston had come to his house the day before and threatened to kill him with a knife; the child locked Preston in his bedroom, and Preston escaped by going out the window; the child called 911, climbed on top of a shack, jumped off of it, and ran away; Preston followed the child's tracks and found him hiding in the bushes; the child ran home and hid while watching a movie with his sister; he and his sister climbed out the window and then down a cliff on a ladder, while Preston jumped over the cliff in a " monster truck" ; the child then got into a fight with Preston and kicked him " in the balls," and Preston " fell out the window" ; Preston came to his school in the monster truck, and the police followed, chasing Preston in cars and helicopters and shining a yellow light at Preston and his house; the child and his sister climbed onto the shack and jumped off; Preston jumped over and broke his leg; Preston then came to his house and was " trying to fuck [his sister's] butt," at which point the child tried to beat up Preston, hitting him in the head and face; the rape was eventually forestalled when the child's kittens began scratching Preston; and the child then also " took a lot" of knives and threw them at some robbers, hitting one " right . . . in the heart," and killing him. As the district court observed after hearing this story, " [m]any of these details are obviously not factual."

As to the alleged sexual contact, the boy stated that Preston pulled the child's underwear down, " put his penis in my butt," and touched the boy's " balls" and " butt" with his mouth. He also stated that Preston told him to " suck his balls," and when the child did, " white stuff got on my shirt" and " on my lips." The boy described the shirt he was wearing as red, and said it was at his home in a bag. He further alleged Preston had tried to " cut . . . my balls" and that " next he cut his balls." He also said that Preston had started the attack by dragging him by his shirt and choking him.

On the same day he gave this account to Moncher, the boy was interviewed by a nurse practitioner. The nurse asked him, " Did [Preston] put something on his dick?" and the child responded, " He just put on the dick wearing," which the parties assume refers to a condom. When asked what happened to the " dick wearing," the child said that " [i]t got white stuff on it," and that Preston " threw it away."

Most of the child's allegations of sexual abuse were not corroborated by physical evidence. Although swabs were taken from various parts of the child's body, including his lips, anus, and genitals, the forensic examiner found no evidence of semen on the child. The child had a " normal genital and anal exam," and no signs of injuries, bruises, or trauma of any kind, although he complained of pain during the

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anal exam. No red shirt was found. Skin cells were found on the child's underwear4 with DNA from multiple contributors, including at least one male and potentially a female; Preston, the child's grandmother and at least one more relative could not be excluded as the source of some of the DNA.5

B. The Confession

About a week after the boy reported that he had been assaulted, Federal Bureau of Investigation (" FBI" ) Special Agent James Kraus and Navajo Nation Criminal Investigator Greg Secatero (" the officers" ) went to Preston's home to question him about the allegations. To aid the investigation, the FBI had obtained Preston's Navajo Nation certificate of Indian Navajo blood, which revealed that he was eighteen years old. The officers noticed the notation, as they commented to Preston, " you're a young guy, 18 years old."

Kraus and Secatero questioned Preston outside his house, next to Kraus's vehicle. They began recording their interaction with Preston within " one or two minutes" of approaching him. The interrogation lasted about forty minutes.

The officers quickly became aware of Preston's mental disability. A short time into the questioning, Preston told them that " I'm not . . . all there," and that " I have problems with my head, like a tumor." Recognizing that Preston may be impaired, Secatero asked him, " Are you disabled right now?" Preston did not understand the question. " What's that, disabled?," he asked. When Secatero explained that " disabled mean[s] you're not able to take care of yourself or you're not able to . . . get a job," Preston agreed that he was disabled. He also explained that he had not finished high school.

The agents told Preston that they were investigating a " molestation" that took place " last Friday." 6 Preston said that he was not home the prior Friday. All parties now agree that Preston was in fact not home on the Friday in question, as he routinely visits a cousin on Fridays. But the officers rejected as false -- over and over again -- Preston's accurate responses to the " Friday" assertions, and repeated throughout most of the interrogation that the incident did take place on Friday. Secatero said, for example, " We just don't buy it," and " Friday, I know you remember you were here" ; and insisted " you have to remember what happened Friday" ; Kraus, too, informed Preston that it was " not disputable" that the child had been at Preston's house on Friday, and stated, incorrectly, that " we have a bunch of people that said you were over here." Eventually, Preston was told, " the fact is, we know you were here," and " [t]here's other witnesses putting you here, so there's no denying" it. Preston eventually stopped disagreeing with the assertion that he was home on Friday.7

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Aside from the " Friday" colloquies with Preston, the officers spent much of...

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