U.S. v. Norris

Decision Date10 November 2005
Docket NumberNo. 03-10437.,03-10437.
Citation428 F.3d 907
PartiesUNITED STATES of America, Plaintiff-Appellee, v. John Cornelio NORRIS, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit
428 F.3d 907
UNITED STATES of America, Plaintiff-Appellee,
v.
John Cornelio NORRIS, Defendant-Appellant.
No. 03-10437.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted February 7, 2005.
Filed November 10, 2005.

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COPYRIGHT MATERIAL OMITTED

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Fredric F. Kay, Federal Public Defender, and David Taylor Shannon, Assistant Public Defender, Tucson, AZ, for defendant-appellant John Cornelio Norris.

Paul K. Charlton, United States Attorney, Christina M. Cabanillas, Deputy Appellate Chief, and Nathan D. Leonardo, Assistant United States Attorney, Tucson,

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AZ, for plaintiff-appellee United States of America.

Appeal from the United States District Court for the District of Arizona; David C. Bury, District Judge, Presiding. D.C. No. CR-01-00005-1-DCB.

Before: WALLACE, RAWLINSON, and BYBEE, Circuit Judges.

RAWLINSON, Circuit Judge:


John Cornelio Norris was convicted of three counts of aggravated sexual abuse. We hold that there was insufficient evidence to corroborate Norris's confession as to count two and reverse his conviction on that count. We affirm Norris's conviction on the remaining counts.

I
FACTS AND PROCEDURAL HISTORY

Norris is a member of the Tohono O'Odham Indian Nation and resided on the San Xavier Indian Reservation during the time the events at issue occurred. He is also the victim's uncle. The victim, referred to as T.V.,1 spent the Thanksgiving weekend of 2000 with Norris at Norris's home. T.V. was five years old at the time. This occurrence was not unusual, as T.V. spent time at her uncle's home on other occasions, including during the summer of 2000.

On the Monday following Thanksgiving, T.V.'s mother received a report from T.V.'s school that Norris may have sexually abused her daughter. T.V.'s mother took T.V. to the clinic where T.V. was examined by Dr. Jacqueline DaSilva-Stephen. During the examination, T.V. told Dr. DaSilva-Stephen that she hurt in the area of her perineal.2 T.V. also told the doctor that "Johnny put his peter in there." Dr. DaSilva-Stephen examined T.V. and noticed that the perineal area was slightly red. Because Dr. DaSilva-Stephen is not an expert in child sexual abuse, she contacted Child Protective Services and the Tohono O'Odham Police Department.

Approximately one week later, FBI Special Agent Elizabeth Ann Mireles and Detective Charles Hangartner from the Tohono O'Odham Police Department (the officers) went to Norris's home to ask him about the allegations of sexual abuse. Norris informed the officers that he had no problem talking to them. Because it was a very cold day and Norris had no electricity, the officers suggested that it would be more comfortable if they continued the conversation at the police substation, located about two miles from Norris's home.

The officers made clear that Norris's cooperation was voluntary and they offered to give him a ride to the substation. The officers also informed Norris that they would transport him back home when the interview was completed. En route to the substation, Norris sat in the front passenger seat unrestrained. Upon arrival, the officers reiterated that Norris's cooperation was strictly voluntary and that whenever he wanted to terminate the interview, the officers would take him home. Norris knew that he was not under arrest and was told that he would not be placed under arrest while at the substation.

Norris was interviewed in the living room area of the police substation, which was a trailer. Norris was not given the

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warnings required by Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). However, at no time during the encounter was Norris restrained in any way. Neither of the officers was in uniform and neither displayed a firearm at any time.

Norris was calm and cooperative. He admitted having sexual contact with the victim on November 25, 2000. Norris stated that he put his penis between the little girl's legs, touching her vaginal area and rubbing back and forth. He went on to describe a similar incident of sexual contact with T.V. that occurred sometime during the summer of 2000. Norris stated that during the incident that occurred in the summer, he also used his hands to touch the victim's vaginal area. Additionally, Norris told the officers about a similar incident in 1994 involving T.V.'s sister. The interview was terminated after approximately forty-five minutes and the officers drove Norris home, as promised.

Norris was subsequently indicted for three counts of aggravated sexual abuse of a child, in violation of 18 U.S.C. §§ 1153, 2241(c) and 2246(2)(A) and (D). Section 1153 subjects Indians who commit specified offenses against a fellow Indian in Indian country to prosecution. Section 2241(c) makes it a crime to knowingly engage in a sexual act with a child below the age of twelve within a territorial jurisdiction of the United States. Sections 2246(2)(A) and (D) define the term "sexual act" as contact between the penis and the vulva or the anus, or "the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person."

Norris moved to suppress his statements on the basis that the statements were taken while he was in custody, without Miranda warnings being given. After a hearing, the magistrate judge issued a Report and Recommendation recommending that Norris's motion to suppress be denied. The district court adopted the Report and Recommendation.

The government moved, pursuant to Rule 414 of the Federal Rules of Evidence, for leave to introduce Norris's statements that he engaged in other acts of child molestation. The government sought to introduce evidence of several prior acts, but the court only allowed the introduction of evidence relating to Norris's sexual abuse of T.V.'s sister. Norris objected to introduction of this evidence on the basis that there was no independent evidence of the corpus delicti of this prior act, because the only evidence of its occurrence was Norris's confession. The district court ruled that the corpus delicti rule does not apply to the admission of evidence of prior bad acts.

At the close of the government's case, Norris moved for an acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure. Norris argued that there was insufficient independent evidence of the corpus delicti of the act charged in count three. Norris also argued that counts two and three of the indictment were based on the same act and therefore were not separate crimes. The district court denied Norris's motions, holding that there was sufficient evidence to support the allegations as to all three counts.

After a three-day trial, a jury convicted Norris on all counts. The court sentenced Norris to concurrent 180-month prison terms for each count, and imposed five years of supervised release for each count, all running concurrently. In calculating Norris's sentence, the district court included an enhancement based on the court's finding that T.V. was in Norris's care and

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supervisory control at the time the crimes were committed. As a special condition of his supervised release, Norris was ordered to reside in a community corrections center for up to eighteen months.

II
DISCUSSION

A. Norris was not in custody when he confessed to the officers

Norris asserts that his confession should have been suppressed because he was never advised of his Miranda rights, although he was in custody at the time of his statements to the officers. We "review de novo the denial of a motion to suppress" and "whether a defendant is constitutionally entitled to Miranda warnings." United States v. Crawford, 372 F.3d 1048, 1053 (9th Cir.2004) (en banc) (citations omitted).

"An officer's obligation to administer Miranda warnings attaches only where there has been such a restriction on a person's freedom as to render him in custody." Id. at 1059 (citation, alteration and internal quotation marks omitted). A person is in custody only where "there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." Id. (citation and internal quotation marks omitted). We must "examine the totality of the circumstances from the perspective of a reasonable person in the suspect's position." Id. (citation omitted).

In Crawford, we held that the defendant was not in custody when he accompanied the officers to an FBI office, the officers told him that he was not under arrest and was free to leave, and the officers drove him home after the interview. Id. at 1051-52, 1060. Similarly, in California v. Beheler, 463 U.S. 1121, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (per curiam), the United States Supreme Court held that Miranda warnings are not required when a suspect voluntarily comes...

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