FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 03-10437
Plaintiff-Appellee, D.C. No.
v. CR-01-00005-1-
JOHN CORNELIO NORRIS, DCB
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted
February 7, 2005—San Francisco, California
Filed November 10, 2005
Before: J. Clifford Wallace, Johnnie B. Rawlinson, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Rawlinson
15283
15286 UNITED STATES v. NORRIS
COUNSEL
Fredric F. Kay, Federal Public Defender, and David Taylor
Shannon, Assistant Public Defender, Tucson, Arizona, 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, Arizona, for
plaintiff-appellee United States of America.
OPINION
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.
1
Because of the victim’s age, she is referred to as T.V. T.V.’s older sis-
ter, who was the victim of a prior sexual assault by Norris, is referred to
as T.V.’s sister.
UNITED STATES v. NORRIS 15287
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 perineum.2 T.V. also
told the doctor that “Johnny put his peter in there.” Dr.
DaSilva-Stephen examined T.V. and noticed that the peri-
neum area was slightly red. Because Dr. DaSilva-Stephen is
not an expert in child sexual abuse, she contacted Child Pro-
tective Services and the Tohono O’Odham Police Depart-
ment.
Approximately one week later, FBI Special Agent Eliza-
beth 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 vol-
untary 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 unre-
strained. 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 substa-
tion.
2
The perineum is the area between one’s legs.
15288 UNITED STATES v. NORRIS
Norris was interviewed in the living room area of the police
substation, which was a trailer. Norris was not given the
warnings required by Miranda v. Arizona, 384 U.S. 436, 444-
45 (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 sex-
ual contact with the victim on November 25, 2000. Norris
stated that he put his penis between the little girl’s legs, touch-
ing 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. Addition-
ally, 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 Nor-
ris home, as promised.
Norris was subsequently indicted for three counts of aggra-
vated sexual abuse of a child, in violation of 18 U.S.C.
§§ 1153, 2241(c) and 2246(2)(A) and (D). Section 1153 sub-
jects 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 magis-
UNITED STATES v. NORRIS 15289
trate judge issued a Report and Recommendation recommend-
ing 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 Fed-
eral Rules of Evidence, for leave to introduce Norris’s state-
ments 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 relat-
ing 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 con-
fession. 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 indepen-
dent 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 alle-
gations 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 super-
vised release for each count, all running concurrently. In cal-
culating Norris’s sentence, the district court included an
enhancement based on the court’s finding that T.V. was in
Norris’s care and 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 correc-
tions center for up to eighteen months.
15290 UNITED STATES v. NORRIS
II
DISCUSSION
A. Norris was not in custody when he confessed to the
officers
Norris asserts that his confession should have been sup-
pressed because he was never given 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 sup-
press” 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).
[1] “An officer’s obligation to administer Miranda warn-
ings 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 circum-
stances from the perspective of a reasonable person in the sus-
pect’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 offi-
cers 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 (1983) (per curiam), the United States Supreme
Court held that Miranda warnings are not required when a
suspect voluntarily comes to the police station, is not placed
under arrest, and is allowed to leave unhindered after a brief
interview. Id. at 1121-22.
[2] In this case, Norris voluntarily accompanied the officers
to the substation. He was told that his cooperation was volun-
UNITED STATES v. NORRIS 15291
tary and that he was free to terminate the interview at any
time. Norris was also told that he was not under arrest and he
was never restrained in any way. Upon completion of the
interview, Norris was taken home by the officers. Considering
the totality of the circumstances from the perspective of a rea-
sonable person in Norris’s position, Norris was not in custody
for purposes of Miranda.
Norris acknowledges that absent the threat of a polygraph,
he was not in custody. However, relying on United States v.
Lee, 699 F.2d 466 (9th Cir. 1982), he contends that the threat
of a polygraph transformed his non-custodial interrogation
into a custodial one. As a preliminary matter, we note that it
is questionable whether such a threat was actually made. Both
Agent Mireles and Detective Hangartner testified that no such
threat was ever made and that no polygraph test was ever
offered to Norris.3 Even if it were, and considering the alleged
threat in the context of the totality of the circumstances, Nor-
ris was not in custody.
This case differs significantly from Lee. In Lee, the defen-
dant was questioned in a closed FBI car with two officers for
well over an hour while other investigators were in and
around his house. See Lee, 699 F.2d at 467-68. After the two
officers allowed Lee to repeat his exculpatory tale, they con-
fronted him at length with factual evidence contradicting his
story, and told him that “now’s the time to tell us the truth.”
Id. at 467.
Unlike the officers in Lee, Agent Mireles and Detective
Hangartner did not attempt to challenge Norris’s statements
3
Norris testified that the threat of a polygraph was made. The magistrate
judge found that both Agent Mireles and Norris “testified credibly and
consistently, except on one point [the polygraph matter].” However, there
was no definitive ruling that the alleged threat was or was not made.
Instead, the magistrate judge held that even if the threat were made, Norris
was still not in custody. Based on Crawford and Beheler, we agree.
15292 UNITED STATES v. NORRIS
with other “known facts” suggesting his guilt, id.; they merely
asked Norris about the allegations. Norris responded by vol-
untarily confessing to his involvement in the November 25,
2000 incident that the officers were investigating, and pro-
ceeded to tell the officers about other incidents that occurred
in the summer of 2000, about which Norris had not even been
asked.
[3] As the magistrate judge noted, the asserted threat of a
polygraph would be more relevant to whether Norris’s confes-
sion was voluntary, rather than whether he was in custody.
See Oregon v. Mathiason, 429 U.S. 492, 495-96 (1977) (per
curiam) (“Whatever relevance [the officer’s false statement
about having discovered Mathiason’s fingerprints at the
scene] may have to other issues in the case, it has nothing to
do with whether [he] was in custody for purposes of the
Miranda rule.”).4 The district court properly denied Norris’s
motion to suppress.
B. The evidence of prior child molestation was
properly admitted under Rule 414(a) of the Federal
Rules of Evidence
“Although we generally review evidentiary determinations
involving an application of the Federal Rules of Evidence for
abuse of discretion, we review de novo the district court’s
interpretation of those rules.” United States v. Sioux, 362 F.3d
1241, 1244 n.5 (9th Cir. 2004) (citations omitted).
[4] Rule 414(a) provides that “[i]n a criminal case in which
the defendant is accused of an offense of child molestation,
evidence of the defendant’s commission of another offense or
offenses of child molestation is admissible, and may be con-
sidered for its bearing on any matter to which it is relevant.”
Fed. R. Evid. 414(a). Under Rule 414(a), the key to admissi-
bility is relevance, and no independent evidence of the com-
4
Norris does not challenge on appeal the voluntariness of his statements.
UNITED STATES v. NORRIS 15293
mission of the prior bad act is required. See United States v.
LeMay, 260 F.3d 1018, 1026 (9th Cir. 2001) (holding that the
admission of propensity evidence under Rule 414 presents no
constitutional violation when the evidence is relevant, proba-
tive, and not outweighed by its prejudicial effect); see also
United States v. Gabe, 237 F.3d 954, 959 (8th Cir. 2001) (“A
court considering the admissibility of Rule 414 evidence must
first determine whether the evidence has probative value, rec-
ognizing ‘the strong legislative judgment that evidence of
prior sexual offenses should ordinarily be admissible.’ ”)
(citation omitted). Rather, corpus delicti evidence is required
only when a confession is the sole basis for a conviction. See
United States v. Corona-Garcia, 210 F.3d 973, 978 (9th Cir.
2000) (stating that “it has nevertheless been long established
that, in order to serve as the basis for conviction, the govern-
ment must also adduce some independent corroborating evi-
dence.”) (citation omitted) (emphasis added).
The Supreme Court’s decision in Huddleston v. United
States, 485 U.S. 681 (1988), which governs the admissibility
of evidence under Rule 404(b), also controls the standard of
proof required to admit evidence under Rules 413-415. In
Huddleston, the Supreme Court held that the admissibility of
other act evidence under Rule 404(b) is governed by Federal
Rule of Evidence 104(b), the rule of conditional relevance. Id.
at 689. When determining whether there is sufficient evidence
to satisfy Rule 104(b), the court is not required to make any
preliminary finding that the government has proved the condi-
tional fact. Id. at 690. Instead, “[t]he court simply examines
all the evidence in the case and decides whether the jury could
reasonably find the conditional fact . . . by a preponderance
of the evidence.” Id. Considering all the evidence, there was
sufficient proof for a jury to reasonably find the conditional
fact, that Norris committed the prior sexual act, by a prepon-
derance of the evidence.
[5] The district court properly declined to apply a corpus
delicti requirement to the admission of evidence under Rule
15294 UNITED STATES v. NORRIS
414. See id. (holding that the court is not required to make a
finding that the government proved the conditional fact). The
court also properly balanced the probative value of the prior
act evidence against its prejudice as it is required to do. See
LeMay, 260 F.3d at 1022 (holding that Rule 403 of the Fed-
eral Rules of Evidence applies to the admission of evidence
under Rule 414). Therefore, the court acted within its discre-
tion when it allowed the admission of Norris’s prior act of
sexually molesting a minor. See Huddleston, 485 U.S. at 684.
C. There was sufficient evidence to support Norris’s
conviction on count three, but not on count two
Count two charged Norris with engaging in the sexual act
of causing contact between his penis and T.V.’s vulva. Count
three charged that Norris engaged in the sexual act of touch-
ing T.V.’s genitalia. Both acts were alleged to have occurred
during the summer of 2000.
Norris argues that there is insufficient evidence to support
a conviction for the acts of sexual abuse charged in counts
two and three, and that his motion for acquittal should have
been granted. Specifically, Norris contends that his confession
was the only evidence that the charged acts actually occurred,
and, therefore, the government was required to produce some
independent corroborating evidence of the corpus delicti of
those acts.
“We review a district court’s denial of a motion for a judg-
ment of acquittal de novo.” United States v. Lopez-Patino,
391 F.3d 1034, 1036 (9th Cir. 2004) (citation omitted).
“There is sufficient evidence to support a conviction if,
reviewing the evidence in the light most favorable to the Gov-
ernment, any rational trier of fact could have found the essen-
tial elements of the crime beyond a reasonable doubt.” Id. at
1038 (citation omitted). Whether a defendant’s confession has
been sufficiently corroborated “is a mixed question of law and
fact that is primarily factual,” and review is for clear error.
UNITED STATES v. NORRIS 15295
United States v. Hernandez, 105 F.3d 1330, 1332 (9th Cir.
1997) (citation omitted).
[6] In United States v. Lopez-Alvarez, 970 F.2d 583 (9th
Cir. 1992), we created a two-part test to determine whether a
confession has been corroborated sufficiently:
[F]irst, although the state need not introduce inde-
pendent evidence of the corpus delicti in confor-
mance with the traditional test, it must introduce
sufficient evidence to establish that the criminal con-
duct at the core of the offense has occurred. Second,
it must introduce independent evidence tending to
establish the trustworthiness of the admissions,
unless the confession is, by virtue of special circum-
stances, inherently reliable.
Id. at 592.
It could be argued that we have retreated from the two-part
test articulated in Lopez-Alvarez. See, e.g., Corona-Garcia,
210 F.3d at 979 (declining to require “absolute proof” that the
asserted conduct actually occurred). However, we do not read
Corona-Garcia so narrowly. In that case, we referenced and
followed the two-part test articulated in Lopez-Alvarez, hold-
ing that the evidence supplied by the government satisfied
both elements. Id. at 978-79.
[7] Norris contends that counts two and three were based
on the same events, and that the government failed to prove
the corpus delicti of those counts that occurred in the summer
of 2000. Norris posits that T.V.’s testimony that Norris “did
sex to” her once, coupled with the evidence that T.V. had
been abused on or around November 25, 2000 as charged in
count one, precludes conviction on counts two and three,
which alleged abuse in the summer of 2000. However, T.V.
was a seven-year-old child who might have understood the
term “sex” to mean only genitalia-to-genitalia contact. T.V.
15296 UNITED STATES v. NORRIS
also testified that Norris touched her vaginal area with his
hand, and she never explicitly stated that all the acts described
in her testimony occurred on one occasion. Thus, T.V.’s testi-
mony was consistent with the theory that Norris touched her
vulva with his penis in November 2000, and fondled her
vulva with his hand at another time. T.V.’s testimony, com-
bined with the evidence that T.V. had been at Norris’s home
in the summer of 2000, was sufficient to establish the trust-
worthiness of Norris’s confession that he fondled her private
area with his hand in the summer of 2000, as charged in count
three. Her testimony also provided sufficient corroboration to
establish that the core conduct of the offense charged—the
intentional touching of T.V.’s genitalia—did in fact occur.
[8] Count two charged that Norris knowingly made contact
between his penis and T.V.’s vulva in violation of 18 U.S.C.
§ 2246(2)(A). However, the government produced no evi-
dence to corroborate Norris’s confession that the core of the
act, Norris’s touching of T.V.’s vulva with his penis during
the summer of 2000, actually occurred. On several occasions,
when asked by the government how many times Norris
touched her “private” with his “dick,” T.V. responded “once.”5
The only other evidence presented by the government that the
sexual act alleged in count two actually occurred was the
statement by T.V.’s mother that T.V. stayed with Norris at
times during the summer of 2000. This evidence does not suf-
ficiently corroborate Norris’s confession regarding the sexual
misconduct. Accordingly, we reverse Norris’s conviction on
count two.6
5
Count one of the indictment charged Norris with engaging in a sexual
act, namely the contact between his penis and the vulva of T.V. Unless
Norris touched T.V.’s vulva with his penis more than once, there is no
other evidence that the sexual act charged in count two occurred.
6
Because we hold that there is insufficient evidence to support a convic-
tion on count two, Norris’s multiplicity claim is moot.
UNITED STATES v. NORRIS 15297
III
CONCLUSION
[9] Norris was not in custody for Miranda purposes and his
confession was properly admitted. The district court correctly
allowed the government to introduce evidence of Norris’s
prior act of child molestation. There was sufficient corrobo-
rating evidence to admit Norris’s confession as to count three.
However, as there was insufficient corroborating evidence of
the corpus delicti of the act charged in count two, we reverse
Norris’s conviction on that count and vacate his sentence.
Because we have reversed one count of conviction, at a mini-
mum Norris must be re-sentenced. See, e.g., United States v.
Panaro, 266 F.3d 939, 945 (9th Cir. 2001), as amended
(remanding to the district court for re-sentencing after revers-
ing defendant’s conviction on one count of a multiple-count
indictment). Because we are vacating Norris’s sentence, we
do not address his contention that the district court violated
the Sixth Amendment by mandatorily enhancing his sentence
based on its findings that T.V. was in Norris’s care and super-
visory control. That matter should be considered in the first
instance by the district court.
CONVICTION AFFIRMED in part, REVERSED in
part; SENTENCE VACATED; CASE REMANDED.