United States v. Preston

• Decision Date: 27 February 2013
• Docket Number: No. 11–10511.,11–10511.
• Citation: 706 F.3d 1106
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Tymond J. PRESTON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

706 F.3d 1106

UNITED STATES of America, Plaintiff–Appellee,

v.Tymond J. PRESTON, Defendant–Appellant.

No. 11–10511.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 9, 2012.

Filed Feb. 5, 2013.

As Amended Feb. 27, 2013.

Professor Keith Swisher, Phoenix, AZ, for the Defendant–Appellant.

Michael T. Morrissey, Assistant United States Attorney for the District of Arizona; Ann Birmingham Scheel, Acting United States Attorney for the District of Arizona; Karla Hotis Delord, Acting Deputy Appellate Chief for the District of Arizona; and Bridget S. Bade, Assistant United States Attorney, Phoenix, AZ, for the Appellee.

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.

Before: JEROME FARRIS, JOHN T. NOONAN, and JAY S. BYBEE, Circuit Judges.

Opinion by Judge FARRIS; Dissent by Judge NOONAN.

OPINION

FARRIS, Senior Circuit Judge:

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 ¹, 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...