United States v. Imm, Juvenile Male

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 11-10317
Plaintiff-Appellee,
D.C. No.
v. 4:10-cr-02378-
CKJ-CRP-1
IMM, JUVENILE MALE,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding

Argued and Submitted
February 12, 2013—San Francisco, California

Filed March 31, 2014

Before: Dorothy W. Nelson, Stephen Reinhardt,
and Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Reinhardt
2 UNITED STATES V. IMM

SUMMARY*

Criminal Law

The panel reversed a criminal judgment and remanded in
a case in which a juvenile was convicted of sexually abusing
his six year old cousin.

Rejecting the defendant’s contention that the district court
lacked jurisdiction, the panel held that the government met
the requirements of 18 U.S.C. § 5032 by certifying that “the
juvenile court or the state does not have jurisdiction over the
juvenile with respect to the alleged act of juvenile
delinquency,” even though the certification was missing a
page and did not include a statement of the government’s
substantial federal interest in this case.

The panel held that the district court did not err in
allowing a seven year old child to testify. Regarding the
defendant’s argument that the government failed to prove
beyond a reasonable doubt that the defendant penetrated the
victim’s anus, the panel held that the evidence at trial,
including the defendant’s inculpatory statements, was not
insufficient to support the conviction.

The panel reversed and remanded because the defendant’s
inculpatory statements should have been suppressed, where
the defendant, who was not Mirandized, was “in custody”
while questioned by a detective.

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 UNITED STATES V. IMM 3

COUNSEL

Jill E. Thorpe (argued), Tucson, Arizona, for Defendant-
Appellant.

John S. Leonardo, United States Attorney, District of
Arizona; Christina M. Cabanillas, Appellate Chief; and
Raquel Arellano (argued), Assistant United States Attorney,
for Plaintiff-Appellee.

OPINION

REINHARDT, Circuit Judge:

IMM, a juvenile, appeals his conviction under 18 U.S.C.
§§ 2241 and 2246 for sexually abusing his six year old
cousin. To convict him of sexual abuse, the government had
to prove beyond a reasonable doubt “contact between the
penis and the vulva or the penis and the anus,” with “contact”
defined as “penetration, however slight.” § 2246(2)(A). We
conclude that the government’s jurisdictional certification
under 18 U.S.C. § 5032 was sufficient, that the district court
did not err in admitting the testimony of a seven year old
witness, and that the evidence introduced at trial was
sufficient to support the conviction. We reverse and remand
to the district court, however, because we conclude that it
erred when it admitted into evidence an inculpatory statement
obtained from IMM in violation of his Fifth Amendment
rights under Miranda v. Arizona, 384 U.S. 436 (1966).
4 UNITED STATES V. IMM

BACKGROUND

I

IMM, his female cousin MM, and her younger brother
were playing outside their grandfather’s trailer on an Indian
reservation in Arizona. IMM was twelve years old, MM was
six years old, and her brother was five years old. At some
point in the afternoon, their grandfather went to check on
them and found MM standing in front of the boys with her
pants down. He yelled at her and asked “what the hell they
were doing,” to which she replied, “They told me to take my
clothes off.” The boys were sitting next to each other on a
propane tank and both of them had their clothes on. Their
grandfather started cursing. Although MM had shown no
signs of distress when her grandfather first arrived, she
started crying after he began yelling at her. He then marched
into the house to tell MM’s mother what he had seen.

There is conflicting testimony as to what happened next.
The children’s grandfather testified that MM’s mother was
asleep when he found her in the house, and that he woke her
up and said, “You are not even watching your kids and this is
what they are doing. [MM] is over there without her clothes
in front of the boys.” He also testified that she then called her
children and started “beating [MM’s brother]” when he ran
into the house. He added that, after beating her son, she went
looking for MM and spanked her too, and that, later that
evening, IMM was taken by another family member over to
the house of his great aunt.

MM’s mother offered a somewhat different account of the
events at trial. In her telling, the children’s grandfather found
her in the house “changing [her] printer for [her] camera” and
 UNITED STATES V. IMM 5

said “[t]hat [IMM] was doing something to [MM], and to go
check on them.” She recalls that MM’s brother came into the
house and said, “[IMM] did it,” at which point she walked
through the house until she found MM, who “had her head
down, and . . . was crying.” She specifically denies spanking
either of her children. She remembers that instead, she
immediately went looking for IMM, and that “she started
yelling for him, [screaming] that I was going to call the
police.” Unable to find him, she then discovered MM in the
closet, crying. She reports that she asked MM if IMM had
done anything to her and MM nodded. At trial, she initially
testified several times that this was all that had happened, but
then stated after further questioning by the prosecutor that
MM had also said that “[IMM] made her do it.”

MM’s mother did not check MM for any physical signs
of sexual assault, or ever take her to the hospital or the police
station for a physical examination. MM did not ever
complain of any pain; nor did her mother ever ask her any
questions about what IMM did to her. Instead, MM’s mother
testified that she called the police right away. Although the
disputed events occurred before sunset and before dinner, and
although she testified that her family usually eats dinner
before 6:00 p.m., the police report states that she first spoke
to the police at 8:00 p.m. that night. She was not on speaking
terms with the children’s grandfather or IMM’s mother at the
time, and for that reason did not speak with either of them
about what had happened.

MM’s younger brother also testified at the trial. Before
he testified, however, defense counsel requested that a
hearing be held to evaluate whether he was competent to
testify. He was five years old when he purportedly witnessed
the incident and was seven years old at the time of the trial.
6 UNITED STATES V. IMM

The district judge asked him several questions about “the
difference between . . . telling the truth, and telling a lie.”
After some initial confusion, he correctly answered a series
of questions about whether it would have been the truth or a
lie for him to make certain statements. Although he was not
sure what would happen if he told a lie, he answered “Yes”
when asked, “Do you understand how important it is for you
to tell the truth today?” He also answered “Yes” when asked,
“And do you know that you could get in trouble if you didn’t
tell the truth?” Later in the hearing, in response to questions
from defense counsel, he confused a “promise” with a
“secret.” After the district judge questioned him further,
however, he demonstrated that he understood the concept of
a promise. The court made a preliminary determination that
he was competent to testify and later made that determination
final.

MM’s younger brother testified that he had seen MM and
IMM “having sex.” When asked what this meant, he
reiterated that they were “having sex” and then admitted that
he did not know what “having sex” meant or where he had
heard these words before. He stated that, on the day of the
purported incident, MM had been sitting on IMM’s lap, that
both of their pants had been pulled down, and that MM had
been facing away from IMM while she sat on his lap. He
added that he had seen IMM’s “dingamajiger,” though he
could not remember what color or size it was, and that IMM
had put his dingamajiger in MM’s “private,” the part that
“poops.” On cross-examination, when asked, “Do you
remember the day that you were just talking about?”, he
answered, “No.” He then answered “I don’t know” when
asked how he could talk about events he did not remember.
When defense counsel asked if someone had talked to him
about the incident and told him what to say, he said yes and
 UNITED STATES V. IMM 7

stated that his mother had told him what to say. When she
testified, his mother stated that she had never spoken with
him about what he saw or what had happened that day, and
that she had never told him what to say in IMM’s case. She
then asserted that his statement to the contrary was a lie.

II

The police did not interview IMM until more than seven
months after the incident under investigation.1 A detective,
who was in plain clothes but visibly armed, drove to IMM’s
home and transported him and his mother to the police station
in an unmarked car.2 The drive lasted 30 to 40 minutes. At
the police station, which was staffed by uniformed police
officers, the detective escorted IMM and his mother into a
small room about five or six feet by five or six feet—just big
enough for a small desk, approximately four chairs, and a
recording device. The detective closed the door and kept it
closed the entire time he was with IMM (including the brief
period he was with IMM and his mother).3

1
The police first interviewed the children’s grandfather three weeks
after the incident. Forensic interviewers took a statement from MM two
weeks later and one from her younger brother two months after that.
2
The detective testified that he did so because IMM and his mother
lacked transportation. There is no evidence as to whether IMM
understood that this was why a police officer had shown up at his house
and escorted him and his mother to a police station in an unmarked car.
3
Although the detective testified that the door was unlocked, there is no
evidence that IMM was aware of this fact. The detective never told IMM
anything about the closed door.
8 UNITED STATES V. IMM

The detective testified that he did not read IMM his rights
under Miranda. Nor, he admitted, did he have IMM sign a
consent form. Instead, he read the Parental Consent to
Interview a Juvenile Form to IMM’s mother and had her sign
it. Although IMM was sitting in the room at the time, the
detective read the Parental Consent to Interview a Juvenile
Form to his mother, and no evidence was offered that IMM
was listening to the reading of the Form or that he understood
its contents. His mother signed the Form and agreed to wait
in the lobby because she thought the detective “would treat
[IMM] like a child.” The detective ordered IMM to wait in
the room while he escorted IMM’s mother to the lobby,
leaving the door shut. When he returned, the detective said
to IMM, “I read your mom those rights, okay, so at any time
throughout the, the interview you don’t feel comfortable, you
can stop and you don’t have to answer any questions.” The
detective then asked if IMM understood and IMM replied,
“Uh-huh.”

IMM was twelve years old at the time of the interview,
though the detective later testified that IMM “looked a little
younger.” As IMM’s mother noted at the suppression
hearing, IMM had been in special education classes and could
read only at a second grade level, even though he was in sixth
grade. IMM also had emotional problems stemming from his
troubled home life. He had witnessed his father try to kill his
mother and may have been sexually abused by his father.
IMM’s mother testified that IMM’s grandfather, who found
the children outside his trailer, was “the only positive [] male
role model” in IMM’s life and that IMM called him “dad.”
She added that IMM and his grandfather were “pretty close.”

The detective had no special training in conducting
interviews with juveniles or juvenile suspects. He also
 UNITED STATES V. IMM 9

testified, remarkably, that he had never heard of false
confessions. He added that he saw no problem with an
officer, in an interrogation, telling a young child with special
education needs what the officer would like that child to say.

The detective spent 55 minutes questioning IMM,
beginning his questioning by asking IMM basic identifying
information. IMM did not know his own address. The
detective then pressed IMM for details on what had happened
with his cousins outside his grandfather’s trailer. At first, and
for nearly half of the interrogation, IMM denied that any
sexual conduct had occurred. He explained repeatedly that he
had kept his pants on when MM sat on his lap. He also said
“I don’t know” and “I don’t really remember” in response to
several questions.

The detective responded by using what he later described
as “deception.” Even though IMM’s grandfather did not, in
fact, see IMM do anything improper, the detective repeatedly
insisted to IMM that his grandfather had seen IMM sexually
abuse MM. The detective lied to IMM, insisting that his
grandfather had said he “saw [IMM] touching [MM].” When
IMM disagreed, the detective asked questions such as,
“Would you consider your grandpa a liar?”, and reminded
IMM that “we’ve already made the decision that grandpa
doesn’t lie right?” Even as he told IMM that his grandfather
had reported abuse and implied that any disagreement meant
that IMM thought his grandfather was a liar, the detective
warned IMM: “[T]his isn’t really a big thing but it can turn
into a big thing if you’re not going to be honest.” He added,
“I don’t want to go over[,] well, I don’t remember or uh, this
is what happened[,] because I know what happened because
I talked to people who saw it, who know, who have heard.”
When IMM again recounted what happened and maintained
10 UNITED STATES V. IMM

that he had not abused MM, the detective sharply interrupted
him and said “No, no . . . remember, we talked about being
truthful? Grandpa saw more than you think he saw.”
Minutes later, when IMM said “I wasn’t doing nothing,” the
detective responded: “Yeah, you were doing something.
Because grandpa tells me you were doing something and
[MM’s brother] said he saw what you were doing. So both of
them are liars?” IMM replied “[Her brother] lies,” leading
the detective to return to his deception involving the
grandfather: “[W]ell then, well, grandpa doesn’t lie and
grandpa told me the exact same thing that [MM’s brother
did].”

Halfway through the interrogation, the detective said that
MM’s brother had told him that “you’re putting your weenie
in her butt.” This was the first time either party to the
interview had used the words “weenie” and “butt.” IMM
replied, “I know.” The detective then told IMM that
“grandpa said he saw you touching her . . . I’m not here
making things up to you okay.” When the detective asked,
“We know [MM] got on top of you, I want to know what you
did,” IMM repeated the language used by the detective: “Um,
um, put my, put my weenie in her butt I guess.” When the
officer asked IMM to clarify what part of the body he meant,
he said “weenie” meant “balls.” After some follow-up
questions from the detective, IMM clarified that he was
talking about his “middle part” that he uses to “pee.”
Prodded by detailed and leading questions from the detective,
IMM thereafter confessed to telling MM to take off her
clothes and to sit on top of him, and he stated that he “um, put
[his] weenie in her butt or something.”

Before trial, IMM’s lawyer filed motions to suppress the
inculpatory statement on grounds of coercion and a Miranda
 UNITED STATES V. IMM 11

violation. After a suppression hearing, the district court
concluded that the statement was admissible and did not
violate Miranda because IMM had not been in custody when
the statement was made and the statement had been given
voluntarily.

DISCUSSION

I

IMM contends that the government submitted a deficient
certification under 18 U.S.C. § 5032 and that the district court
therefore lacked jurisdiction.4 We conclude that the
certification that the government filed in the district court met
the requirements of § 5032 by certifying that “the juvenile
court or the state does not have jurisdiction over the juvenile
with respect to the alleged act of juvenile delinquency,” even
though it was missing a page and did not include a statement
of the government’s substantial federal interest in this case.

To prosecute a juvenile in federal court, the government
must satisfy the certification procedures set forth by § 5032.
United States v. Doe, 170 F.3d 1162, 1165 (9th Cir. 1999).
Specifically, the government must certify that

(1) the juvenile court or other appropriate
court of a State does not have jurisdiction or
refuses to assume jurisdiction over said
juvenile with respect to such alleged act of

4
“Whether the government complied with 18 U.S.C. § 5032 is an issue
of statutory interpretation which this court reviews de novo.” Juvenile
Male (Kennetch C.), 241 F.3d 684, 686 (9th Cir. 2001) (citing United
States v. Doe, 98 F.3d 459, 460 (9th Cir. 1996)).
12 UNITED STATES V. IMM

juvenile delinquency, (2) the State does not
have available programs and services
adequate for the needs of juveniles, or (3) the
offense charged is a crime of violence that is
a felony or an offense described in section 401
of the Controlled Substances Act (21 U.S.C.
841), or section 1002(a), 1003, 1005, 1009, or
1010(b)(1), (2), or (3) of the Controlled
Substances Import and Export Act (21 U.S.C.
952(a), 953, 955, 959, 960(b)(1), (2), (3)),
section 922(x) or section 924(b), (g), or (h) of
this title, and that there is a substantial Federal
interest in the case or the offense to warrant
the exercise of Federal jurisdiction.

§ 5032. “Certification is a jurisdictional requirement.” Doe,
170 F.3d at 1165 (citing United States v. Doe, 98 F.3d 459,
460 (9th Cir. 1996)); see also United States v. Juvenile Male
(Kenneth C.), 241 F.3d 684, 686 n.1 (9th Cir. 2001) (“A
district court cannot entertain a juvenile delinquency action
unless the § 5032 certification is properly filed.”). The
purpose of § 5032 is “to help ensure that state and local
authorities . . . deal with juvenile offenders wherever
possible, keeping juveniles away from the less appropriate
federal channels.” United States v. Juvenile Male, 864 F.2d
641, 644 (9th Cir. 1988).

In this case, the government, apparently inadvertently,
omitted the second page of its certification from its filing. On
the first page of the document that it filed, the government
certifies that “the juvenile court or the state does not have
jurisdiction over the juvenile with respect to the alleged act of
juvenile delinquency” and that “the offense charged is a
crime of a violence.” The third page contains the signature of
 UNITED STATES V. IMM 13

the United States Attorney, as required by our precedent. See
Doe, 98 F.3d at 460–61. The certification does not contain
any statement regarding the government’s substantial federal
interest in this case that warrants the exercise of federal
jurisdiction over IMM.

Conceding that the certification therefore does not satisfy
the third provision of § 5032, the government argues that it
nonetheless satisfies the statute’s first provision.5 In
response, IMM does not dispute that the filing adequately
certifies that “the juvenile court or other appropriate court of
a State does not have jurisdiction or refuses to assume
jurisdiction over said juvenile with respect to such alleged act
of juvenile delinquency.”6 Instead, he contends that § 5032
requires the government also to certify a substantial federal
interest in jurisdiction over IMM. This argument raises a
question of first impression: whether the requirement to

5
As we have explained, “[c]ertification under any one of the three
provisions of Section 5032 is sufficient to commit a juvenile to the federal
court system.” United States v. Male Juvenile (Pierre Y.), 280 F.3d 1008,
1014 (9th Cir. 2002) (citation omitted); see also Juvenile Male, 864 F.2d
at 646 (“[T]he certification list in section 5032 is disjunctive.”). Further,
in light of this concession by the government, we need not reach IMM’s
argument that 18 U.S.C. § 2241 is not a “crime of violence” within the
meaning of § 5032.
6
IMM suggests that the missing page should wholly disqualify the
government’s certification. It is settled, however, that “[i]n applying
§ 5032, federal courts ‘refuse to elevate form over substance.’” Doe,
170 F.3d at 1165 (quoting United States v. White, 139 F.3d 998, 1002 (4th
Cir. 1998)). Here, IMM does not offer any reason to suspect that the
missing second page would have contradicted or withdrawn the
government’s statement on the first page that “the juvenile court or the
state does not have jurisdiction over the juvenile with respect to the
allaged act of juvenile delinquency.” We therefore reject this argument.
14 UNITED STATES V. IMM

certify a substantial federal interest is an independent
requirement that applies to each of the bases for jurisdiction
set forth in § 5032 or is required only when the government
asserts jurisdiction under this statute’s third provision.7

The text of § 5032 lends support to each of these
positions. It suggests that certification of a substantial federal
interest is an independent requirement in two ways: first, by
introducing the requirement with “and that,” implying that it
is distinct from the other three provisions, which are
collectively introduced with a requirement that the
government “certifies to the appropriate district court of the
United States that”; and second, by setting off this
requirement with a comma after the third provision.
However, the plain text can also be fairly read to suggest that
certification of a substantial federal interest is required only
under § 5032’s third provision: first, the far more natural
method of designating it as an independent requirement
would have been to list it before the three provisions, rather
than as an addendum to the third provision; and second, the
commas that set it off from the third requirement serve to
separate the various sections of the federal controlled
substances laws, not to indicate that the substantial federal
interest requirement is meant to apply to all three of the
foregoing provisions.

7
None of our precedents has decided this issue directly. Describing the
requirements of § 5032, however, we have characterized the substantial
federal interest requirement in somewhat different ways. Compare United
States v. Juvenile Male, 595 F.3d 885, 887 (9th Cir. 2010), with United
States v. Male Juvenile, 280 F.3d at 1014, and Juvenile Male, 864 F.2d at
646.
 UNITED STATES V. IMM 15

Legislative history resolves this textual ambiguity and
makes clear that Congress intended the “substantial Federal
interest” requirement to apply to (and limit) only the third
basis for jurisdiction under § 5032. See In re HP Inkjet
Printer Litig., 716 F.3d 1173, 1180–81 (9th Cir. 2013)
(“Where the statutory text is ambiguous . . . we may ‘look to
other interpretive tools, including the legislative history’ in
order to determine the statute’s best meaning.” (quoting
Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546,
567 (2005))). Congress added the third provision of § 5032
and the “substantial Federal interest” language together in
1984.8 The accompanying Senate report explained that this
amendment “would allow retention of Federal jurisdiction
over a juvenile offender on the basis of a substantial Federal
interest in the offense charged . . . .” S. Rep. No. 225, 98th
Cong., 1st Sess. 386, 387. The report added that the newly-
added third provision was meant to give the federal

8
Before the 1984 amendments, § 5032 provided:

A juvenile alleged to have committed an act of juvenile
delinquency shall not be proceeded against in any court
of the United States unless the Attorney General, after
investigation, certifies to an appropriate district court of
the United States that the juvenile court or other
appropriate court of a state (1) does not have
jurisdiction or refuses to assume jurisdiction over said
juvenile with respect to such alleged act of juvenile
delinquency, or (2) does not have available programs
and services adequate for the needs of juveniles.

If the attorney general does not so certify, such juvenile
shall be surrendered to the appropriate legal authorities
of such state.

Pub. L. 93–415, September 7, 1974, 88 Stat 1109.
16 UNITED STATES V. IMM

government power to retain jurisdiction even when a state
was willing to assume jurisdiction in certain serious felony
cases:

[T]he Committee has added a third category
to existing law that would permit the
disposition of a case involving a juvenile
charged with a serious felony by means of a
Federal proceeding. This would be
permissible if the Attorney General certifies
that the offense is a felony crime of violence
7 or a serious drug offense described in
21 U.S.C. 841, 952(a), 955, or 959, and that
there is a “substantial Federal interest in the
case or offense to warrant the exercise of
Federal jurisdiction.”

Id. at 389. The report said nothing about applying the new
“substantial federal interest” requirement to limit federal
jurisdiction under the preexisting first and second provisions
of § 5032, and Congress’s purpose in adding the third
provision and the substantial federal interest requirement does
not suggest a reason to do so.

Accordingly, we hold that the requirement that the
government certify a “substantial Federal interest in the case
or the offense to warrant the exercise of Federal jurisdiction”
applies only to the third provision of § 5032.9 Applying that
rule to this case, we conclude that the certification here

9
The Fourth Circuit has described the requirements of § 5032 in a
manner consistent with our holding. United States v. T.M., 413 F.3d 420,
424 (4th Cir. 2005).
 UNITED STATES V. IMM 17

satisfied the requirements of § 5032 and that the district court
had jurisdiction over IMM.

II

IMM argues that the district court erred in refusing to
suppress his inculpatory statement under Miranda. Miranda
is violated when a suspect is placed in custody and is then
interrogated without receiving Miranda warnings or without
knowingly, intelligently, and voluntarily waiving the rights
described in those warnings.

“Any police interview of an individual suspected of a
crime has coercive aspects to it.” J.D.B. v. North Carolina,
131 S. Ct. 2394, 2401 (2011) (quotation marks and citations
omitted). When police conduct results in an individual being
placed “in custody,” the substantial coercion inherent in his
situation “blurs the line between voluntary and involuntary
statements, and thus heightens the risk that [the person being
interrogated] will not be ‘accorded his privilege under the
Fifth Amendment . . . not to be compelled to incriminate
himself.’” Dickerson v. United States, 530 U.S. 428, 435
(2000) (quoting Miranda, 384 U.S. at 439). “Custodial police
interrogation, by its very nature, isolates and pressures the
individual, and there is mounting empirical evidence that
these pressures can induce a frighteningly high percentage of
people to confess to crimes they never committed.” Corley
v. United States, 556 U.S. 303, 320–21 (2009) (quotation
marks and citations omitted). “[T]hat risk is all the more
troubling—and recent studies suggest, all the more
acute—when the subject of custodial interrogation is a
juvenile.” J.D.B., 131 S. Ct. at 2401 (citing an amicus brief
collecting studies that “illustrate the heightened risk of false
confessions from youth”). As the Supreme Court long ago
18 UNITED STATES V. IMM

recognized, circumstances that “would leave a man cold and
unimpressed can overawe and overwhelm a lad in his early
teens.” Haley v. Ohio, 332 U.S. 596, 599 (1948) (plurality
opinion).

Recognizing that the inherently coercive nature of
custodial interrogation calls into doubt the voluntariness of
inculpatory statements, the Court in Miranda “adopted a set
of prophylactic measures designed to safeguard the
constitutional guarantee against self-incrimination.” J.D.B.,
131 S. Ct. at 2401 (quoting Dickerson, 530 U.S. at 435).
These rules “give force to the Constitution’s protection
against compelled self-incrimination,” Florida v. Powell,
559 U.S. 50, 59 (2010), and require that, before custodial
interrogation, a suspect be “warned that he has a right to
remain silent, that any statement he does make may be used
as evidence against him, and that he has a right to the
presence of an attorney, either retained or appointed,”
Miranda, 384 U.S. at 444. “[I]f a suspect makes a statement
during his custodial interrogation, the burden is on the
Government to prove, as a ‘prerequisit[e]’ to the statement’s
admissibility as evidence in the Government’s case in chief,
that the defendant ‘voluntarily, knowingly and intelligently’
waived his rights.” J.D.B., 131 S. Ct. at 2401 (citations
omitted).

Here, the parties dispute whether IMM was “in custody”
when he was questioned at the police station, whether he was
properly Mirandized, and, if so, whether he “voluntarily,
knowingly and intelligently” waived his Miranda rights. We
conclude that he was in custody and that he was not
Mirandized, and therefore do not address the issue of waiver.
 UNITED STATES V. IMM 19

A. IMM was “In Custody” While Questioned by the
Detective

“In determining whether an individual was in custody, a
court must examine all of the circumstances surrounding the
interrogation, but the ultimate inquiry is simply whether there
[was] a formal arrest or restraint on freedom of movement of
the degree associated with a formal arrest.” Stansbury v.
California, 511 U.S. 318, 322 (1994) (per curiam) (internal
quotation marks and citation omitted). “This inquiry requires
a court to examine the totality of the circumstances from the
perspective of a reasonable person in the suspect’s position.”
United States v. Crawford, 372 F.3d 1048, 1059 (9th Cir.
2004) (en banc) (citing Berkemer v. McCarty, 468 U.S. 420,
442 (1984)). “[W]e must determine whether the officers
established a setting from which a reasonable person would
believe that he or she was not free to leave.” United States v.
Kim, 292 F.3d 969, 973–74 (9th Cir. 2002) (quotation marks
and citation omitted); see also Thompson v. Keohane,
516 U.S. 99, 112 (1995) (“Two discrete inquiries are essential
to the determination: first, what were the circumstances
surrounding the interrogation; and second, given those
circumstances, would a reasonable person have felt he or she
was at liberty to terminate the interrogation and leave.”
(quotation marks and citation omitted)).

In United States v. Kim, we identified a non-exhaustive
list of five factors that have often proven relevant in deciding
whether a suspect was in custody: “(1) the language used to
summon the individual; (2) the extent to which the defendant
is confronted with evidence of guilt; (3) the physical
surroundings of the interrogation; (4) the duration of the
detention; and (5) the degree of pressure applied to detain the
individual.” 292 F.3d at 974 (citations omitted). As we
20 UNITED STATES V. IMM

recognized in Kim, “[o]ther factors may also be pertinent to,
and even dispositive of, the ultimate determination whether
a reasonable person would have believed he could freely walk
away from the interrogators.” Id.

Although this inquiry is objective, the Supreme Court
held in J.D.B. that “so long as the child’s age was known to
the officer at the time of police questioning, or would have
been objectively apparent to any reasonable officer, its
inclusion in the custody analysis is consistent with the
objective nature of that test.” 131 S. Ct. 2394, 2406. The
Court cautioned that “a child’s age [may] affect[] how a
reasonable person in the suspect’s position would perceive his
or her freedom to leave,” and warned that “a reasonable child
subjected to police questioning will sometimes feel pressured
to submit when a reasonable adult would feel free to go.” Id.
at 2402–03. Thus, J.D.B. recognized that for Miranda, as for
so many other rights, common sense dictates that we must
take into account the unique characteristics and
vulnerabilities of children. See id. at 2404 (“‘[O]ur history is
replete with laws and judicial recognition’ that children
cannot be viewed simply as miniature adults.” (quoting
Eddings v. Oklahoma, 455 U.S. 104,115–16 (1982))); Miller
v. Alabama, 132 S. Ct. 2455, 2470 (2012) (“[I]f . . . ‘death is
different,’ children are different too. Indeed, it is the odd
legal rule that does not have some form of exception for
children.”). To fail to recognize this tenet would be to invite
legal error.

Here, the district court concluded that IMM was not in
custody. We review the “in custody” determination de novo.
United States v. Bassignani, 575 F.3d 879, 883 (9th Cir.
2009) (“[A] district court’s ‘in custody’ determination is a
mixed question of law and fact warranting de novo review.”
 UNITED STATES V. IMM 21

(quotation marks and citation omitted)). “[T]he factual
findings underlying the district court’s decision . . . are
reviewed for clear error,” however. Id. (citation omitted).

IMM does not challenge the district court’s factual
findings and, having carefully reviewed the record, we
conclude that those findings are not clearly erroneous.
However, applying the legal standard set forth above to the
“determination” regarding IMM’s custodial status, we
conclude that IMM was “in custody” for Miranda purposes.
A reasonable person, and especially a reasonable twelve year
old child, in IMM’s position would not, under all of the
circumstances, have felt that he was free to terminate the
interrogation and leave.

The first Kim factor, “the language used to summon the
individual,” slightly favors a finding that IMM was in
custody. In general, when a suspect voluntarily agrees to
accompany police with an “understanding that questioning
would ensue,” this factor weighs against a finding of custody.
Kim, 292 F.3d at 974 (emphasis in original) (citing California
v. Beheler, 463 U.S. 1121, 1125 (1982) (per curiam)). We
have strongly cautioned, however, that “[v]oluntary initiation
of contact with police cannot be, under any circumstances,
the end of the inquiry into whether a defendant was ‘in
custody’ during the encounter.” Id. at 975. That warning
applies with particular force here: although IMM’s mother
agreed to a voluntary meeting with the detective, there is no
evidence that IMM himself ever agreed to an interview,
understood it to be voluntary, or understood his mother’s role
in making the necessary arrangements. Because the ultimate
issue is whether IMM himself understood that he was free to
leave, we cannot impute his mother’s subjective awareness of
the circumstances of the interview to IMM. The evidence
22 UNITED STATES V. IMM

shows only that, from IMM’s vantage point, an armed
detective arrived at his house one Saturday morning, drove
him and his mother 30 to 40 minutes to a police station, and
brought him to a small room where he remained for nearly an
hour of questioning. Although the officer did not menace
IMM or order him into the car, it is doubtful that a juvenile in
IMM’s position would have seen the circumstances of his
arrival at the police station as the result of a free and
voluntary choice to be questioned.

The second Kim factor, “the extent to which the defendant
is confronted with evidence of guilt,” overwhelmingly favors
a finding of custody. “We have found a defendant in custody
when the interrogator adopts an aggressive, coercive, and
deceptive tone.” Bassignani, 575 F.3d at 884.10 Here,
although the detective did not raise his voice, he repeatedly
confronted IMM with fabricated evidence of guilt and
engaged in elaborate deceptions. The detective fed IMM
facts that fit the detective’s predetermined account of what
must have happened, accused IMM of dishonesty whenever
IMM disagreed with the detective’s false representations, and
forced IMM to choose between adopting the detective’s false
account of events as his own and calling his own grandfather

10
See also United States v. Barnes, 713 F.3d 1200, 1204–05 (9th Cir.
2013) (finding custody where, inter alia, “The FBI agents directly
confronted Barnes with evidence of guilt before administering the
Miranda warnings”); United States v. Brobst, 558 F.3d 982, 995–96 (9th
Cir. 2009) (finding custody where, inter alia, “[the defendant] was
immediately confronted with evidence of the child pornography against
him”); United States v. Wauneka, 770 F.2d 1434, 1439 (9th Cir. 1985)
(finding custody where, inter alia, “[t]he questioning progressed for over
an hour and turned accusatory—Wauneka was told that he supplied
information that only a perpetrator would know, that he matched the
description of the rapist, and that he had better tell the truth.”)
 UNITED STATES V. IMM 23

a liar. This last tactic directly played upon IMM’s close
relationship with his grandfather, whom he called “dad,” and
employed intense psychological coercion of a sort to which
juveniles are uniquely vulnerable. See J.D.B., 131 S. Ct. at
2403 (noting that children “are more vulnerable or susceptible
to . . . outside pressure than adults” (quotation marks
omitted)). Further, although the detective did not explicitly
threaten IMM, he bluntly warned that the situation would
“turn into a big thing if you’re not going to be honest.” Thus,
while the detective told IMM at the outset of the interview
that IMM could stop it if he felt uncomfortable, the
detective’s aggressive, coercive, and deceptive interrogation
tactics created an atmosphere in which no reasonable twelve
year old would have felt free to tell the detective, an adult
making full use of his position of authority, to stop
questioning him. See id. at 2405 (“Neither officers nor courts
can reasonably evaluate the effect of objective circumstances
that, by their nature, are specific to children without
accounting for the age of the child subjected to those
circumstances.”). In fact, IMM’s questioning ceased not
when IMM asked that the detective stop but only when the
detective had attained all the information he desired. Thus,
from the beginning to the end of the interrogation, the
detective made it clear that he believed that there was no
doubt that IMM was guilty. It would only be normal for
IMM to believe that, under all the circumstances, he would be
required to remain at the police station or be transferred to
some other detention site rather than be released whenever he
decided to leave. Finally, given that the detective had driven
him and his mother to the police station, more than a half
hour from his home, IMM may well not have thought that he
and his mother would be free to leave whenever they so
desired.
24 UNITED STATES V. IMM

The third Kim factor, “the physical surroundings of the
interrogation,” also weighs strongly in IMM’s favor. While
“[t]he fact that questioning takes place in a police station does
not necessarily mean that such questioning constitutes
custodial interrogation,” United States v. Coutchavlis,
260 F.3d 1149, 1157 (9th Cir. 2001) (emphasis added), it
often does. That is especially true for juveniles, who are
more likely to be overwhelmed by entry into a police station
staffed by armed, uniformed officers. See Haley, 332 U.S. at
599. Here, IMM was placed in a small room with the door
closed. Although the door was unlocked, there is no evidence
that IMM was aware of this fact. To the contrary, the
detective twice exercised control over IMM’s practical ability
to enter and exit the room—first by ordering IMM to knock
on the door if he needed to use the restroom and later by
directing IMM to sit alone in the small room until the
detective returned. Compare Crawford, 372 F.3d at 1059
(noting that a suspect is not in custody when, inter alia, “he
does in fact leave without hindrance”). Similar to the suspect
in United States v. Barnes, IMM’s confrontation with the
police occurred “in a small office, behind a closed door,
inside the [police station].” See 713 F.3d at 1204–05
(concluding that the suspect was in custody). IMM’s mother
was present in the police station, but she was absent for the
entire interrogation and there is no evidence that IMM
believed he was free simply to stand up, leave, and find her.
Cf. Kim, 292 F.3d at 977 (noting that “isolating the defendant
from the outside world . . . largely neutralizes the familiarity
of the location as a factor affirmatively undermining a finding
of coercion”).

In short, with respect to the third Kim factor, IMM was
interrogated alone behind a closed door that appeared to be
locked, in a small room in a police station located 30 to 40
 UNITED STATES V. IMM 25

minutes away from his home. He was told that, if he wanted
to leave to use the restroom, he needed to knock and obtain
the detective’s permission. Faced with this situation and
level of police control, a reasonable person would not likely
have felt free to terminate the interrogation and leave the
police station at will.

The next Kim factor, “duration of detention,” strengthens
the conclusion that IMM was in custody. IMM spent 30 to 40
minutes in the unmarked police car and then nearly an hour
being questioned. Although our precedents do not specify a
precise amount of time at which a detention turns custodial,
we have found an adult defendant to have been in custody
when she was interrogated for 45 to 90 minutes. See Kim,
292 F.3d at 972. Under all the circumstances, including the
fact that IMM, as a juvenile, was likely more overwhelmed
and intimidated than an adult would be by such prolonged
direct questioning by an adult police officer, this Kim factor
supports a finding of custody.

The fifth and final Kim factor, “the degree of pressure
applied to detain the individual,” confirms that IMM was in
custody. As in Kim, “this was a full-fledged interrogation,
not a brief inquiry,” in which IMM was “detained for ‘some
time’” and then questioned for “at least [50 total] minutes.”
292 F.3d at 977. This questioning was both hostile and
accusatory, and, when conducted in isolation in a small room
in a police station, quite capable of causing IMM
considerable concern regarding his future. Although IMM
was neither handcuffed nor arrested, “the scenario was not
without pressure resulting from a combination of the
26 UNITED STATES V. IMM

surroundings and circumstances encompassed by the other
factors.”11 Barnes, 713 F.3d at 1204–05.

Ultimately, guided by the Kim factors, considering the
totality of the circumstances of IMM’s detention, and taking
into account IMM’s status as a juvenile, we conclude that a
reasonable person in IMM’s position would not have felt free
to terminate the questioning and leave the police station. We
therefore conclude that IMM was “in custody” during his
interrogation by the detective.

B. IMM Was Not Mirandized

The government contends that IMM’s custodial status
does not affect the outcome of this appeal because IMM
waived his Miranda rights.12 The question of waiver arises,
however, only where a suspect has been Mirandized. See
Berghuis v. Thompkins, 560 U.S. 370, 385 (2010) (explaining
that “Miranda imposes on the police a rule that is both
formalistic and practical when it prevents them from
interrogating suspects without first providing them with a
Miranda warning”).

11
The district court gave weight to the fact that “the [detective] had no
intention to arrest [IMM] on the date of the interview.” There is no
evidence, however, that IMM was aware of the detective’s subjective
intent. This consideration is thus irrelevant to the Miranda analysis. See
Kim, 292 F.3d at 973 (“The inquiry focuses on the objective circumstances
of the interrogation, not the subjective views of the officers . . .”).
12
As the district court did not address IMM’s arguments that he was not
Mirandized and that he did not waive his Miranda rights, we review them
de novo. Any facts found by the district judge that bear on these issues
are reviewed for clear error.
 UNITED STATES V. IMM 27

Here, as the district court recognized, IMM “was not
advised of his Miranda rights.” The detective repeatedly
conceded this crucial fact while testifying at the suppression
hearing. When asked about his reading of the Parental
Consent to Interview a Juvenile Form, the detective
acknowledged that “[he] was reading to [IMM’s mother],”
that he did not tell IMM to listen to what he was reading, that
he did not tell IMM that he had a right to remain silent, that
he did not tell him he had a right to an attorney, and that he
did not ask IMM if he wished to waive any of his rights or to
sign any form on which he consented to doing so. When the
detective read the Form to IMM’s mother, who was “giggling
and nervous,” IMM was in the room, but the government
offers no evidence to show that he participated in or was even
listening to any discussion between the two adults.

As the Second Circuit recently emphasized in a case
involving similar facts, it is not sufficient for the government
to show only that an officer “read the warnings in a clear
voice while standing near” or “within earshot” of a suspect.
United States v. Murphy, 703 F.3d 182, 194 (2d Cir. 2012).
The officer must read the Miranda warnings to the suspect,
and thereby “clarify that a defendant may choose at any time
to waive his rights or maintain those rights, including the
right to remain silent.” Id. at 193. Ultimately, Miranda
requires that “an individual held for interrogation must be
clearly informed [of his rights].” 384 U.S. at 471 (emphasis
added). Here, IMM was never read his Miranda rights and
the district court agreed with that description of what
happened. Certainly it is clear that the detective did not
explain the meaning or consequences of the Miranda rights
28 UNITED STATES V. IMM

to IMM. Accordingly, IMM’s inculpatory statements during
his interrogation by the detective must be suppressed.13

III

IMM challenges the district court’s determination that
MM’s younger brother, who was seven years old at the time
of trial, was competent to testify as a witness. We affirm the
district court.

Federal Rule of Evidence 601 states that “[e]very person
is competent to be a witness unless these rules provide
otherwise.” Congress has made clear that this presumption
extends to children by providing in 18 U.S.C. § 3509(c)(2)
that “a child is presumed to be competent.” Congress has
also provided that when a court examines the competence of
a minor to testify, it may assess only “the child’s ability to
understand and answer simple questions.” Id. at § 3509(c)(8).

Here, the district court concluded that the seven year old
child was competent after a careful examination in open
court, with questioning by the prosecutor, defense counsel,
and the court.14 The hearing tested the child’s ability to
understand and answer simple questions, his understanding of

13
The government does not argue that IMM’s inculpatory statements,
if inadmissible, were harmless.
14
The district court reached a preliminary determination right after the
competency hearing. It then finalized this determination after the
government’s case-in-chief. At that point, the district court reasoned that,
while the child “didn’t understand oath,” he “did seem to understand truth
versus lie.” The district court also suggested that concerns about the
child’s testimony went to “the weight rather than the admissibility” of his
statements as evidence.
 UNITED STATES V. IMM 29

the difference between truth and falsity, and his
comprehension of the importance of telling the truth. See
Pocatello v. United States, 394 F.2d 115, 117 (9th Cir. 1968)
(noting that appreciation of “the difference between truth and
falsehood” and “the capacity for observation, recollection and
communication” are vital to competency determinations for
juveniles). The district judge, after observing the child and
reviewing his answers, determined that he was competent to
testify. That determination merits deference. As we have
recognized, “[t]he competency of a child as a witness is a
matter within the discretion of the trial judge and his decision
will not be disturbed unless clearly erroneous.” Id. at
116–17.

IMM argues that the child’s testimony must nonetheless
be excluded because he could not understand exactly what an
oath requires. This proposed requirement for testimony by
children is too rigid. While Federal Rule of Evidence 603
states that “a witness must give an oath or affirmation to
testify truthfully,” the accompanying Advisory Committee
Note emphasizes that “[t]he rule is designed to afford the
flexibility required in dealing with religious adults, atheists,
conscientious objectors, mental defectives, and children.”
(emphasis added). It adds that “[a]ffirmation is simply a
solemn undertaking to tell the truth; no special verbal formula
is required.”

Here, the district court concluded that the child
understood the difference between truth and falsity, and that
he understood the special importance of speaking truthfully
while testifying. That conclusion was not clearly erroneous.
Although the child’s testimony suggested many reasons to
seriously doubt his understanding or recollection of the events
in question, notably including his statements that he did not
30 UNITED STATES V. IMM

recall what had happened and that he had been told what to
say at trial by his mother, the district judge correctly
concluded that those considerations affected the weight his
testimony merited rather than his competence under Rules
601 and 603 to offer that testimony at all.15 Accordingly, we
affirm the district court’s determination that MM’s younger
brother was competent to testify at trial.16

IV

Finally, IMM contends that the evidence at trial was
insufficient to support his conviction. The answer to this
question remains important. A reversal on the ground of a
Miranda violation does not bar retrial under the Double
Jeopardy Clause, while a reversal for insufficiency of the

15
IMM does not argue that the child’s testimony should have been
excluded on any other grounds. We therefore do not consider other
possible grounds on which his testimony—which, by his own admission,
was not based on his personal recollection of the disputed events and
instead reflected what his mother had told him to say—might have been
excluded, such as failure to satisfy the balancing test required by Rule 403
and failure to satisfy the personal knowledge requirement set forth by Rule
602.
16
IMM suggests that the child’s alleged inability to understand his oath
may have violated IMM’s Confrontation Clause rights. Even if the child’s
statements concerning the importance of telling the truth did not reassure
us, we would still reject this argument. As we explained in Walters v.
McCormick, “Incapacity to understand the duty to testify truthfully does
not automatically offend the Confrontation Clause when the witness in
question is a young child. At least where, as here, there is reason to
believe that the incriminating testimony will be truthful, a young child
may constitutionally be a witness.” 122 F.3d 1172, 1175–76 (9th Cir.
1997); see also id. at 1176 (“No federal court has held that the
Constitution places limits on allowing even the youngest child to testify
at trial.”).
 UNITED STATES V. IMM 31

evidence does preclude a second trial under that provision.
See, e.g., United States v. Boulware, 384 F.3d 794, 809–10
(9th Cir. 2004).

We review a sufficiency-of-the-evidence claim de novo.
United States v. Odom, 329 F.3d 1032, 1034 (9th Cir. 2003).
There is insufficient evidence to support a conviction if,
viewing the evidence in the light most favorable to the
prosecution, no “rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
United States v. Nevils, 598 F.3d 1158, 1163–64 (9th Cir.
2010) (en banc).

IMM was convicted of being a juvenile delinquent on
grounds of sexual abuse of a minor, in violation of 18 U.S.C.
§§ 2241(c) and 2246(2)(A). More specifically, he was
convicted of knowingly engaging in a sexual act with another
person who had not attained the age of twelve.17 The

17
18 U.S.C. § 2241(c) provides as follows:

(c) With children.—Whoever crosses a State line with
intent to engage in a sexual act with a person who has
not attained the age of 12 years, or in the special
maritime and territorial jurisdiction of the United
States or in a Federal prison, or in any prison,
institution, or facility in which persons are held in
custody by direction of or pursuant to a contract or
agreement with the head of any Federal department or
agency, knowingly engages in a sexual act with another
person who has not attained the age of 12 years, or
knowingly engages in a sexual act under the
circumstances described in subsections (a) and (b) with
another person who has attained the age of 12 years but
has not attained the age of 16 years (and is at least 4
32 UNITED STATES V. IMM

government therefore had to prove beyond a reasonable doubt
that IMM committed a “sexual act” as defined by § 2246(2).
It invoked the definition of “sexual act” set forth at
§ 2246(2)(A): “[C]ontact between the penis and the vulva or
the penis and the anus, . . . contact involving the penis occurs
upon penetration, however slight.” (emphasis added).

IMM argues that the government failed to prove beyond
a reasonable doubt that IMM penetrated MM’s anus; at best,
he asserts, it proved that IMM’s penis made contact with MM
“between the cheeks.” Although it is a close question, we
conclude that the evidence at trial, viewed in the light most
favorable to the government, was sufficient to support the
conviction.18

The government did not present any physical evidence of
penetration. Instead, it relied mainly on testimony by IMM’s
grandfather, MM’s younger brother, and MM’s mother, two
excited utterances by MM,19 and IMM’s videotaped statement
to the detective. Neither IMM’s grandfather nor MM’s

years younger than the person so engaging), or attempts
to do so, shall be [punished] . . .

(emphasis added).
18
Our analysis considers all the evidence introduced at trial, including
the inculpatory statements by IMM that should have been suppressed,
because if there had been insufficient evidence even with those statements
then double jeopardy would bar retrial. (Without that statement, however,
it is clear, as our analysis in the text demonstrates, that the evidence would
not have been sufficient and acquittal would have been required.)
19
MM told her grandfather that the boys told her to take her clothes off.
She told her mother that IMM “made her do it.” IMM does not contest the
admissibility of these statements as excited utterances.
 UNITED STATES V. IMM 33

mother saw the disputed events, or heard or observed
anything before or after them bearing on the specific subject
of penetration. Nor does their testimony permit an inference
of penetration. The same is true of MM’s two excited
utterances, neither of which in any respect implies any
penetration.20 This leaves only the eyewitness testimony of
MM’s brother, a seven year old child, and IMM’s inculpatory
statements to the detective.

The seven year old child’s testimony that he saw IMM put
his “dingamajiger” in MM’s “private,” the part that “poops,”
taken in context, supports the element of penetration only
slightly and would not, standing alone, be enough to provide
sufficient evidence. Although the child testified that he saw
IMM and MM “having sex,” he admitted that he did not
know what this meant or where he had learned the
expression, “having sex.” He also conceded that he did not
remember the incident and stated that his mother, who was
not an eyewitness, had told him what to say at trial. In any
event, his testimony does not offer a basis for distinguishing
between “in the cheeks” and penetration. As the district
judge recognized, the testimony could support an inference of
penetration only to the extent it is corroborated by other
evidence.21

20
Both of these statements might well have referred only to her
removing her clothes or sitting on IMM’s lap with his pants down, or
anything else.
21
The district judge thus explained that “I – the Court views [the child’s]
testimony with great caution given his very young age and given the –
especially in the age of a young child, the incredible length of time that
has passed since the incident. And certainly, if the Court had only had
[the child’s] testimony to rely on in this case, I – I would have great
concerns in relying solely on that testimony. So in this Court’s mind as
34 UNITED STATES V. IMM

Ultimately, then, the conviction stands or falls on IMM’s
inculpatory statements to the detective.22 Those statements,
following the detective’s use of a variety of deception-based
interrogation techniques, included the following: that IMM
put his “weenie in [MM’s] butt” while she faced away from
him, that she had her pants off at the time, that his zipper was
down, and that he held her sides while she was sitting on him.
Reading this evidence in the light most favorable to the
government we cannot hold that it is insufficient to support
the conviction.

V

We conclude that the district court had jurisdiction over
IMM, that the district court did not err in allowing the seven
year old child to testify, and that the evidence at trial,
including IMM’s inculpatory statements, was not insufficient
to support the conviction. We reverse and remand, however,
because IMM’s inculpatory statements were obtained in
violation of his Miranda rights and should have been
suppressed.

REVERSED AND REMANDED.

the trier of fact, that testimony would need to be corroborated before the
Court would consider it.”
22
The district court so stated while explaining its judgment that “the
Court does rely heavily on the interview of the defendant.”