United States v. Tymond Preston

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA , No. 11-10511
Plaintiff-Appellee,
D.C. No.
v. 3:10-cr-08026-
GMS-1
TYMOND J. PRESTON ,
Defendant-Appellant. ORDER AND
AMENDED OPINION

Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding

Argued and Submitted
November 9, 2012—San Francisco, California

Filed February 5, 2013
Amended February 27, 2013

Before: Jerome Farris, John T. Noonan, and
Jay S. Bybee, Circuit Judges.

Order;
Opinion by Judge Farris;
Dissent by Judge Noonan
2 UNITED STATES V . PRESTON

SUMMARY*

Criminal Law

The panel affirmed a conviction for abusive sexual
contact and remanded for resentencing in a case in which the
district court imposed a lifetime term of supervised release
and several conditions of supervised release.

The panel held that the defendant’s confession was
properly admitted. The panel wrote that the defendant’s
diminished mental capacity alone is not enough to render his
confession involuntary, and that the length, location, and
continuity of the interview do not support a conclusion of
involuntariness.

The panel held that the defendant validly waived his
rights to a jury trial and an indictment, and the district court
did not plainly err by accepting the defendant’s counsel’s
waiver of his right to confrontation.

The panel rejected the defendant’s contention that the
district court abused its discretion in admitting expert
testimony about the DNA evidence used to implicate him.

The panel held that the district court properly admitted the
testimony of the victim’s grandmother and uncle under the
excited utterance exception to the general hearsay exclusion.
The panel held that the improper admission of an
investigating officer’s hearsay testimony was cumulative to

*
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 . PRESTON 3

admissible testimony and therefore harmless. The panel
rejected the defendant’s argument that prosecutorial
misconduct materially affected the fairness of the trial.

The panel rejected the defendant’s sufficiency-of-the-
evidence challenge to the conviction.

The panel held that the district court’s imposition of a
lifetime term of supervised release was procedurally sound.
Regarding substantive reasonableness, the panel could not, on
this record, hold that the district court abused its discretion,
but suggested that the district court, in its own discretion,
consider the prosecutor’s recommendation of an alternative
sentence, whereby the defendant, who is in his early twenties,
may satisfy some requirements to have the term shortened.

The panel directed the district court on remand to
reconsider a supervised release condition requiring
plethysmograph testing as to which the district court failed to
make the requisite specific findings.

The panel directed the district court to clarify a condition
that the defendant “shall not possess, view, or otherwise use
any other material that is sexually stimulating, sexually
oriented, or deemed to be inappropriate by the probation
officer and/or treatment provider.”

The panel requested that the district court include a mens
rea requirement in a condition prohibiting the defendant from
being “in the company of . . . children under the age of 18
without prior approval of [his] probation officer.” The panel
also instructed the district court to explain adequately its
reasons for imposing this condition, or to narrow it
appropriately, given that the condition infringes on a
4 UNITED STATES V . PRESTON

significant liberty interest by prohibiting the defendant from
associating, without the permission of his probation officer,
with any children of his own he may have in the future.

Judge Noonan dissented because the only evidence
against the defendant is a coerced confession. He also wrote
that he would ban the plethysmograph procedure altogether.

COUNSEL

Professor Keith Swisher, Phoenix Arizona, 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, Arizona for the Appellee.

ORDER

The opinion filed on February 5, 2013 is amended as follows:

On slip Opinion page 26, lines 7–10, remove the
following text: [Preston failed to move for acquittal at the
close of the evidence, so we reverse only for plain error.
United States v. Delgado, 357 F.3d 1061, 1068 (9th Cir.
2004).]

On slip Opinion page 26, line 12, change the following
text: [any] to [any]
 UNITED STATES V . PRESTON 5

On slip Opinion page 26, line 14, change the following
text: [Id. (citations and emphasis omitted).] to [Jackson v.
Virginia, 443 U.S. 307, 319 (1979) (emphasis in original);
United States v. Atkinson, 990 F.2d 501, 503 (9th Cir.
1993) (en banc).]

On slip Opinion page 27, line 1, change the following
text: [reasonable] to [rational]

On slip Opinion page 27, line 13, change the following
text: [reasonable] to [rational]

On slip Opinion page 27, lines 13–14, change the
following text: [Delgado, 357 F.3d at 1068.] to [Jackson,
443 U.S. at 319.]

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.
6 UNITED STATES V . PRESTON

I.

At some time in the evening on Wednesday, September
23, 2009, TD1, 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.

1
This case involves a juvenile victim whose identity has been
protected.
 UNITED STATES V . PRESTON 7

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
8 UNITED STATES V . PRESTON

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
 UNITED STATES V . PRESTON 9

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
10 UNITED STATES V . PRESTON

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 would recommend
that he receive no more than a fifteen-year sentence. Preston
and his attorney signed and filed a waiver of indictment and
a waiver of jury trial, both of which stated that Preston had
been advised of his rights and agreed to waive them in open
court. Additionally, the district court conducted a colloquy
in open court to determine whether Preston understood the
rights that he waived. The judge, with assurances from
 UNITED STATES V . PRESTON 11

Preston’s attorney, concluded that Preston understood his
rights.

The district judge conducted a three-day bench trial and
at its conclusion found Preston guilty of the charge. The
court relied on Preston’s confession, DNA evidence taken
from TD’s underwear and an expert witness’s analysis of the
DNA, TD’s statements to his grandmother, and the testimony
of TD’s forensic interviewer and the nurse who conducted his
medical examination. TD did not testify at the trial, though
his recorded statements were admitted by stipulation.

The court sentenced Preston to fifty-months’
imprisonment, a lifetime term of supervised release, and,
inter alia, the conditions that:

(1) “You shall attend and participate in
plethysmograph testing,” (2) “You shall not
possess, view, or otherwise use any other
material that is sexually stimulating, sexually
oriented, or deemed to be inappropriate by the
probation officer and/or treatment provider,”
and (3) “You shall not be in the company of
or have contact with children under the age of
18 without prior approval of the probation
officer.”

II.

Preston raises several issues in challenging his conviction
and sentence. Preston first argues that his confession was
involuntary and thus improperly admitted at trial. After
examining the totality of the circumstances, we conclude that
the confession was properly admitted. Preston also
12 UNITED STATES V . PRESTON

challenges the validity of his waiver of his rights to a jury
trial, indictment, and confrontation. We hold that Preston
validly waived his rights to a jury trial and an indictment, and
the district court did not plainly err by accepting Preston’s
counsel’s waiver of his right to confrontation. We reject
Preston’s contention that the trial court abused its discretion
in admitting expert testimony about the DNA evidence used
to implicate him.

We hold that the district court properly admitted the
testimony of TD’s grandmother and uncle under the excited
utterance exception to the general hearsay exclusion. The
testimony of Officer Butler was not properly admitted at trial,
but its admission was harmless error. We reject Preston’s
argument that prosecutorial misconduct materially affected
the fairness of the trial. Preston also argues that the trial court
relied on insufficient evidence. We reject the argument.
Since certain conditions of Preston’s supervised release must
be remanded to the district court for reconsideration, we do
not rule on the question of the duration of the supervision.

III.

We review de novo whether a confession was voluntary
and for clear error the district court’s factual findings
underlying its determination of voluntariness. United States
v. Gamez, 301 F.3d 1138, 1144 (9th Cir. 2002).

“Involuntary or coerced confessions are inadmissible at
trial because their admission is a violation of a defendant’s
right to due process.” Brown v. Horell, 644 F.3d 969, 979
(9th Cir. 2011). “[C]ourts look to the totality of circumstances
to determine whether a confession was voluntary.” Withrow
v. Williams, 507 U.S. 680, 693 (1993). Factors to be
 UNITED STATES V . PRESTON 13

considered in this analysis include “the degree of police
coercion; the length, location and continuity of the
interrogation; and the defendant’s maturity, education,
physical condition, mental health, and age.” Brown, 644 F.3d
at 979 (citing Withrow, 507 U.S. at 693–94). Ultimately, the
determination to be made is whether the “suspect’s will was
overborne.” Haynes v. Washington, 373 U.S. 503, 513–14
(1963).

“[C]oercive police activity is a necessary predicate to the
finding that a confession is not ‘voluntary.’” Colorado v.
Connelly, 479 U.S. 157, 167 (1986). “Coercive police
activity can be the result of either ‘physical intimidation or
psychological pressure.’” Brown, 644 F.3d at 979 (quoting
Townsend v. Sain, 372 U.S. 293, 307 (1963)). Here, the
agents did not threaten Preston physically nor use any
improper interview techniques to apply “psychological
pressure.” See Brown, 644 F.3d at 979. The interview lasted
about forty-minutes, took place outside of Preston’s
residence, others were nearby, Preston was told multiple
times that he was not under arrest and was free to leave,
Preston was not physically restrained, and the agents did not
arrest Preston at the conclusion of the interview. Preston’s
assertion that the agents’ offer to speak inside their vehicle
“subtly threatened his physical freedom” is unfounded; the
agents offered this opportunity to allow Preston to “talk about
it away from . . . everybody,” Preston declined the offer, and
the agents reminded Preston immediately thereafter that he
was not under arrest.

There is no doubt that the agents continued to try to
obtain a confession from Preston after he denied the incident
with TD. However, accusing a suspect of lying “does not
automatically render the questioning coercive, as an
14 UNITED STATES V . PRESTON

interrogator can legitimately express his disbelief at a
defendant’s story in order to elicit further comments or
explanations.” United States v. Wolf, 813 F.2d 970, 975 (9th
Cir. 1987).

Nor is there any doubt that the agents confused the dates
during the course of the interview. However, this was not a
ploy to confuse Preston, but was a genuine mistake on the
part of the investigating agents; the agents properly referred
to the incident as having occurred on September 23 and
eventually tried to rectify the mistake during their interview
with Preston, though once again they stated the wrong day.
This mistake did not appear to confuse Preston, who
continued to deny having been home on Friday but eventually
acknowledged the incident to which the agents were
referring. It would be illogical to expect Preston to correct
the agents’ asserted date of an event he claimed never
occurred, and by the time he began to confess, differentiating
between a Wednesday and a Friday would not have been at
the forefront of his thoughts.

The agents proceeded with their interview by using such
tactics as telling Preston that other evidence could implicate
him, making it seem as though confessing could minimize the
consequences of his crime, and asking Preston suggestive
questions. None of these tactics, however, rises to a
constitutional violation. The agents did not use “false
evidence ploys,” as implied by Preston. The agents
referenced witnesses that could place TD at Preston’s home
on the day of the incident, interviews implicating Preston, and
forensic examinations that could be conducted to determine
what had occurred. There were several people who could
place TD at Preston’s home on the day of the incident, the
agents had reports of the incident from other interviews, and
 UNITED STATES V . PRESTON 15

a forensic examination of TD could be conducted, as it later
was. Even if this evidence was misleading, this is not enough
to amount to coercion. See Pollard v. Galaza, 290 F.3d 1030,
1034 (9th Cir. 2002) (“[M]isrepresentations made by law
enforcement in obtaining a statement, while reprehensible,
does not necessarily constitute coercive conduct.”).
Similarly, the agents’ statements to Preston that his
confession could stay between them and the United States
Attorney, and that they could possibly get help for him if he
confessed, were not improper. Agents may use such tactics
to induce a confession. See United States v. Coleman,
208 F.3d 786, 791 (9th Cir. 2000) (Agents’ promise that they
could “tell the prosecutor to give [the suspect] little or no
time” did not establish involuntariness). Finally, the agents’
use of suggestive questions was not improper. It is not
reasonable to expect a person suspected of perpetrating a
serious crime to willingly provide a narrative of his criminal
action. See Doody v. Ryan, 649 F.3d 986, 1021 (9th Cir.
2011) (“We recognize and acknowledge that police officers
are entitled to use, and do use, a variety of techniques to
interrogate suspects.”); Cunningham v. City of Wenatchee,
345 F.3d 802, 810 (9th Cir. 2003) (finding that “continuing to
question a suspect after the suspect claims he is innocent does
not constitute coercion and is often necessary to achieve the
truth,” and though the questions may have “unsettled” the
suspect, “mere emotionalism and confusion do not invalidate
confessions”). Preston’s denial of some suggestions by the
agents and his acceptance of others suggests that his will was
not overborne by the agents’ strategy. Preston also provided
the agents with additional facts that were not suggested by
their leading questions; for example, his statements regarding
how long he placed his penis in TD’s anus and TD’s reaction
thereafter.
16 UNITED STATES V . PRESTON

Further, tactics used to obtain a confession are only a
factor to be weighed when examining the totality of the
circumstances. Brown, 644 F.3d at 979. The length, location,
and continuity of the interview do not support a conclusion of
involuntariness.

Preston contends that a finding of involuntariness is
“irrefutable in light of [his] characteristics,” specifically his
diminished mental capacity. The “personal characteristics of
the defendant are constitutionally irrelevant absent proof of
coercion,” Derrick v. Peterson, 924 F.2d 813, 818 (9th Cir.
1991) (quoting United States v. Rohrbach, 813 F.2d 142, 144
(8th Cir. 1987)) (internal quotation marks omitted). Preston’s
diminished mental capacity does not so heavily influence the
totality of circumstances test that a finding of involuntariness
is appropriate.

Preston has an IQ of 65, which means that he suffers from
mild mental retardation. Atkins v. Virginia, 536 U.S. 304,
309 n.3 (2002) (“‘Mild’ mental retardation is typically used
to describe people with an IQ level of 50–55 to approximately
70.”). Preston argues that the agents should have known that
he was disabled and taken precautionary steps during their
interview and, “at least, given him Miranda warnings.”
Preston presents a valid argument that the agents should have
had some idea that he suffered from mental issues, but it
could not have been clear to the agents exactly what issues
those were. Preston informed the agents that a “tumor”
caused “short-term memory loss,” and that he had been
removed from his high school due to his behavior and not
allowed back. Neither of these comments would give the
officers reason to believe that Preston could not comprehend
their questions or would be susceptible to improper influence.
Additionally, Preston’s contention that the agents should have
 UNITED STATES V . PRESTON 17

provided him with Miranda warnings or required a parent or
attorney to be present are legally baseless. Preston was not in
custody and makes no argument that he was. Withrow v.
Williams, 507 U.S. 680, 693–94 (1993) (taking into
consideration in its due process analysis of voluntariness the
“failure of police to advise the defendant of his rights to
remain silent and to have counsel present during custodial
interrogation.” (emphasis added)); Derrick, 924 F.2d at 819
(“[N]o case . . . requir[es] that a juvenile’s relative be present
prior to any confession.”). Moreover, Preston was not a
juvenile.

Finally, the bar for finding that a defendant was coerced
in part due to his mental impairment is not insignificant and
appears to turn largely on the length of the interrogation. See,
e.g., Columbe v. Connecticut, 367 U.S. 568, 620–26 (1973)
(noting that mental incapacity was a relevant factor in
determining that holding the defendant—a “mental defective
. . . with an intelligence quotient of sixty-four”—in effective
police custody for four nights and five days, refusing to let
the defendant speak with anybody other than his co-defendant
and wife, and repeatedly questioning the defendant
culminating in a four-and-a-half hour questioning after which
he confessed, was coercive); Doody v. Ryan, 649 F.3d 986,
1008 (9th Cir. 2011) (focusing on time as an important factor
in concluding that a twelve-hour investigation of a mentally
impaired suspect was coercive); Com. of N. Mariana Islands
v. Mendiola, 976 F.2d 475, 485–86 (9th Cir. 1992)
(determining that the interrogation of a cognitively impaired
defendant was coercive when “[p]olice repeatedly informed
Mendiola that he would be charged or released within twenty-
four hours, they interrogated him on numerous occasions
without affording him the comfort of friends, family,
employer, or attorney, they repeatedly accused him of lying,
18 UNITED STATES V . PRESTON

and they instructed him to sign statements he could not
understand”), overruled on other grounds by George v.
Camacho, 119 F.3d 1393 (9th Cir. 1997). Finding
unconstitutional coercion here, where the interrogation
consisted of forty-five minutes of questioning in Preston’s
own driveway, would significantly broaden this Court’s
coercion jurisprudence, at least as it impacts those with
cognitive impairments.

Preston’s mental capacity alone is not enough to render
his confession involuntary. In the absence of coercive tactics
or a coercive atmosphere during the interview, more is
required to show that Preston’s confession was involuntary.

IV.

We review de novo the district court’s acceptance of a
defendant’s waiver of his rights to a jury trial and an
indictment. United States v. Christensen, 18 F.3d 822, 824
(9th Cir. 1994); see United States v. Ferguson, 758 F.2d 843,
850–51 (2d Cir. 1985). “If the defendant failed to object to
the admission of evidence under the Confrontation Clause,
[this Court] review[s] for plain error.” United States v.
Hagege, 437 F.3d 943, 956 (9th Cir. 2006).

A. Waiver of Indictment

A defendant must knowingly, intelligently, and
voluntarily waive his right to an indictment. Ferguson, 758
F.2d at 850–51. Federal Rule of Criminal Procedure 7(b)
allows a defendant to waive his right to an indictment and be
charged by information if the defendant waives the right “in
open court and after being advised of the nature of the charge
and of [his] rights.” FED . R. CRIM . P. 7(b).
 UNITED STATES V . PRESTON 19

Preston’s waiver complied with Rule 7(b). Preston
waived his right in open court after the district judge
ascertained Preston’s understanding of the consequences, and
Preston’s lawyer confirmed that Preston understood the
waiver. The judge explained to Preston the difference
between an indictment and an information, including the role
of the grand jury in an indictment and the consequences of
waiving his right to a grand jury indictment. The judge also
asked Preston’s attorney whether he had reservations about
Preston’s understanding of his waiver, and the attorney stated,
“I have no such reservations, judge.” Preston’s attorney had
consulted with two mental health professionals, both of
whom confirmed that while Preston may have been slow to
understand the concepts involved in the court proceedings, he
was capable of understanding them, and the attorney spent
several hours with Preston explaining to him the concept and
consequences of his waiver.

Preston also argues that his waiver in exchange for a
lesser sentence constituted coercion. There is, however, no
basis in law or fact for this argument. Preston knowingly,
intelligently, and voluntarily waived his right to an
indictment.

B. Waiver of Jury Trial

A defendant “must be competent to waive the jury right,
and the waiver must in fact be voluntary, knowing, and
intelligent.” Christensen, 18 F.3d at 824. Federal Rule of
Criminal Procedure 23(a) allows criminal defendants to
waive their constitutional right to a jury trial if the waiver is
made in writing and has the approval of the government and
of the court. FED . R. CRIM . P. 23(a). This Court has also held
that in “cases where the defendant’s mental or emotional state
20 UNITED STATES V . PRESTON

is a substantial issue,” the district court must conduct “an
in-depth colloquy which reasonably assures the court that
under the particular facts of the case, the signed waiver was
voluntarily, knowingly, and intelligently made.” Id. at
825–26. This must include telling the defendant: “(1) twelve
members of the community compose a jury; (2) the defendant
may take part in jury selection; (3) jury verdicts must be
unanimous; and (4) the court alone decides guilt or innocence
if the defendant waives a jury trial.” Id. at 825.

Preston complied with Federal Rule of Criminal
Procedure 23(a) by waiving his right to a jury trial in writing
and with the approval of the government and the court. The
judge conducted an in-depth colloquy in which he discussed
with Preston each of the four aforementioned points, had
Preston explain each, and made sure that Preston understood
them all. Preston’s argument that the court was required to
comply with Federal Rule of Criminal Procedure Rule 11,
which sets forth necessary procedural steps for a defendant
accepting a guilty plea, has no legal basis because Preston did
not plead guilty. Preston’s waiver of his jury right was
voluntary, knowing, and intelligent.

C. Waiver of Right to Confrontation

“[T]he accused may waive his right to . . . confrontation
and . . . the waiver of this right may be accomplished by the
accused’s counsel as a matter of trial tactics or strategy.”
Wilson v. Gray, 345 F.2d 282, 286 (9th Cir. 1965). At trial,
Preston and his attorney agreed to admit TD’s recorded
statement in lieu of having TD testify in person, and he
argues that this stipulation violated his right to confrontation.
It is clear that the trial counsel’s stipulation was a matter of
trial strategy. Preston’s attorney opted to admit the recorded
 UNITED STATES V . PRESTON 21

statements because he was content with the information
contained therein and concerned that “children on the stand
. . . can say anything and go in any direction.” The district
court did not plainly err by accepting this waiver and
admitting TD’s recorded statements. See Hagege, 437 F.3d
at 956.

V.

Preston argues that the expert testimony of the DNA
analyst at trial did not meet the requirements of Rule 702 and
should have been excluded as unfairly prejudicial under
Federal Rule of Evidence 403.

Preston’s assertion that the DNA evidence should have
been excluded under Rule 403 depends largely on his
argument that the evidence was unreliable. His argument
fails. Rule 403 is inapplicable to bench trials. EEOC v.
Farmer Bros. Co., 31 F.3d 891, 898 (9th Cir. 1994); Schultz
v. Butcher, 24 F.3d 626, 632 (4th Cir. 1994).

Federal Rule of Evidence 702 states that expert testimony
must be “the product of reliable principles and methods, and
. . . the expert [must have] reliably applied the principles and
methods to the facts of the case.” FED . R. EVID . 702. We
review the district court’s decision to admit expert opinion
testimony for abuse of discretion. United States v.
Redlightning, 624 F.3d 1090, 1110 (9th Cir. 2010). Whether
a district court abused its discretion involves a two-step
inquiry. Id. “First, we determine de novo whether the
district court identified the correct legal rule to apply to the
relief requested. If the district court did not identify the
correct legal rule, it is an abuse of discretion. Second, we
determine if the district court’s application of the correct legal
22 UNITED STATES V . PRESTON

standard was illogical, implausible, or without support in
inferences that may be drawn from the facts in the record.”
Id. (internal citations omitted).

The district court properly applied Rule 702 to determine
whether to admit the testimony of the DNA analyst. The trial
judge fulfilled his “gatekeeper” role pursuant to Daubert and
allowed the expert’s testimony based on the foundation laid
by the prosecutor that established the relevance and reliability
of the testimony and the scientific method by which the DNA
was analyzed; the DNA was subjected to a common
procedure for analysis. See Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579 (1993). Preston made no objection to the
expert’s testimony at trial and has failed to articulate any
meaningful reason that her analysis is not reliable. For
example, Preston argues that the “analyst went below her
lab’s quality threshold.” However, the expert explicitly stated
that while the test conducted may have fallen below the lab’s
“reporting threshold,” the analysts are “allowed to go below
that level to try and eliminate or exclude someone.” This is
exactly what the expert did. Preston’s other arguments attack
the analyst (1) for running “irrelevant statistical hypotheses,”
even though the tests to which he refers were not part of the
analyst’s report and were not relied on by the district court,
and (2) for using inappropriate population statistics, even
though Preston’s expert agreed that these statistics were
proper to use in an analysis.

Preston incorrectly asserts that the district court
“erroneously used the DNA population statistics.”
Specifically, Preston claims that the district court
misinterpreted the DNA evidence when it stated that “99.8%
of the general Navajo population can be excluded as possible
contributors of such DNA.” The analyst testified that “99.8
 UNITED STATES V . PRESTON 23

percent of Navajo contributors” taken from a “population of
randomly selected unrelated individuals” could be eliminated
as contributors to the DNA found in TD’s underwear.
Preston claims that “the 99.8% statistic suggests only that this
percentage of randomly selected, unrelated Navajo Native
Americans is unlikely to have the exact same DNA profile as
Mr. Preston—the presence or absence of alleles at only five
loci would yield a significantly lower percentage.” Preston,
however, has misinterpreted the analyst’s statistics; the
analyst eliminated 99.8% of the Navajo population based on
an analysis of the sample taken from TD’s underwear and not
based on an analysis of Preston’s DNA, and Preston provides
no basis for his claim that another test, which he fails to
describe, “would yield a significantly lower percentage.” The
district court did not abuse its discretion in admitting the
expert’s testimony. It applied the correct rule, Rule 702, and
did not apply the rule in a way that was “illogical,
implausible, or without support in inferences that may be
drawn from the facts in the record.” Redlightning, 624 F.3d
at 1110.

VI.

We review a district court’s admission of evidence for an
abuse of discretion and will reverse only if it is more probable
than not that the improper evidence materially affected the
verdict. United States v. Dorsey, 677 F.3d 944, 951, 954 (9th
Cir. 2012). Alleged Confrontation Clause violations are
reviewed de novo and are subject to harmless error analysis.
United States v. Berry, 683 F.3d 1015, 1020 (9th Cir. 2012).

Preston objects to the district court’s admission of
testimony from TD’s grandmother and uncle recounting what
TD told them on the night of the assault. He also challenges
24 UNITED STATES V . PRESTON

the testimony of Officer Butler, who investigated the incident,
recounting what TD and his grandparents told him about the
assault.

The district court did not abuse its discretion by admitting
the statements of TD’s uncle and grandmother recounting
what TD told them on the night of the assault. The excited
utterance exception allows a court to admit a “statement
relating to a startling event or condition, made while the
declarant was under the stress of excitement that it caused.”
FED . R. EVID . 803(2). Although Preston claims that the
timing of the events precludes admission of the testimony,
there is no conclusive evidence to establish when the alleged
assault occurred, and the evidence shows that TD ran from
Preston’s house in tears to his own home where he reported
the incident to his relatives while still crying and visibly
upset. The district court did not abuse its discretion. It did
not make a decision that was “clearly against the logic and
effect of the facts.” Rabkin v. Oregon Health Sciences Univ.,
350 F.3d 967, 977 (9th Cir. 2003). These statements did not
violate the Confrontation Clause. Excited utterances are
nontestimonial. Leavitt v. Arave, 383 F.3d 809, 830 (9th Cir.
2004).

Preston does make a valid argument that the testimony of
Officer Butler was improperly admitted as hearsay and a
violation of the Confrontation Clause. However, Officer
Butler’s testimony was cumulative to the testimony of TD,
TD’s grandmother and uncle, and TD’s forensic interviewer.
In light of the other evidence available, the admission of
Officer Butler’s testimony was harmless error. See United
States v. Gonzalez, 533 F.3d 1057, 1061–62 (9th Cir. 2008)
(admission of hearsay recounting victim’s rape story was
 UNITED STATES V . PRESTON 25

harmless error where victim also testified that the defendant
had raped her).

VII.

If defense counsel fails to object to acts of alleged
prosecutorial misconduct at trial, we review for plain error.
United States v. Wright, 625 F.3d 583, 610 (9th Cir. 2010).
To obtain reversal, a defendant must establish both
misconduct and prejudice. Id. Regarding prejudice, the
question is whether it is more probable than not that the
misconduct materially affected the fairness of the trial. Id. at
613.

Preston makes several arguments that the evidence was
improperly argued: the prosecutor improperly vouched for the
testimony of the DNA analyst; the prosecutor argued chronic
sexual abuse; the prosecutor injected “incendiary
considerations” into the case; and the prosecutor suggested
that defense counsel manufactured evidence, commented on
Preston’s silence, and called Preston’s mother a liar. These
arguments lack merit.

“Vouching consists of placing the prestige of the
government behind a witness through personal assurances of
the witness’s veracity, or suggesting that information not
presented to the jury supports the witness’s testimony.”
United States v. Weatherspoon, 410 F.3d 1142, 1146 (9th Cir.
2005) (internal citation omitted). Preston is correct that the
prosecutor stated that the DNA analyst had “no motive to do
anything other than to tell the truth.” However, this falls
short of vouching. The prosecutor did not make any personal
assurances of veracity nor did he make reference to
information not presented to the judge. See Weatherspoon,
26 UNITED STATES V . PRESTON

410 F.3d at 1146 (finding that a prosecutor improperly
vouched for a witness where the prosecutor went beyond his
statement that the witness had no reason to lie and “clearly
urged that the existence of legal and professional
repercussions served to ensure the credibility of the officers’
testimony”).

Preston argues that the prosecutor improperly referenced
chronic sexual abuse that was “not in evidence” and
“unnecessary to the charge.” However, TD stated during his
forensic interview that Preston assaulted him multiple times,
and the information was relevant to an analysis of this
interview.

It is unnecessary to address Preston’s other arguments.
Even if misconduct occurred, Preston has not shown that it is
more probable than not that it affected the fairness of the trial.
This was a bench trial in which the judge was the trier of fact.
The risk of improperly influencing a judge by placing the
prestige of the government in favor of or against a witness or
swaying the judge with improper evidence is far less than in
a jury trial. See Dedmore v. United States, 322 F.2d 938, 946
(9th Cir. 1963) (“[I]t is to be presumed, absent a showing to
the contrary, that the District Judge considered only material
and competent evidence in arriving at his findings of guilt.”).
Preston has failed to show misconduct or that this alleged
misconduct affected the fairness of the trial.

VIII.

Preston contends that the trial court had insufficient
evidence to conclude that he had the intent to sexually abuse
TD or that the abuse actually occurred. We must view the
evidence “in the light most favorable to the prosecution” and
 UNITED STATES V . PRESTON 27

examine whether “any rational trier of fact could have found
the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979)
(emphasis in original); United States v. Atkinson, 990 F.2d
501, 503 (9th Cir. 1993) (en banc).

The government had the burden to prove beyond a
reasonable doubt that Preston had the “intent to abuse,
humiliate, harass, degrade, or arouse or gratify the sexual
desire of any person.” 18 U.S.C. § 2246(3).
“[C]ircumstantial evidence alone can be sufficient to
demonstrate a defendant’s guilt.” United States v. Cordova
Barajas, 360 F.3d 1037, 1041 (9th Cir. 2004). Preston’s
argument that there was insufficient evidence to prove he had
the requisite intent depends largely on Preston’s own
statement that he did not have a sexual “urge” at the time of
the assault. Other evidence, however, shows that Preston
assaulted TD to gratify his sexual desire, including TD’s
testimony that he viewed pornography with Preston and that
Preston ejaculated after the assault. Preston fails to show
that, when viewing the evidence in the light most favorable
to the prosecution, a rational trier of fact could not have found
the necessary intent beyond a reasonable doubt.

Preston also argues that the evidence is not sufficient to
prove that any sexual contact occurred. Preston asserts that
the district court made its finding based on a coerced
confession, an unreliable statement from TD, and unreliable
DNA evidence. Preston has failed to prove his assertions
regarding the reliability of the evidence, and even if Preston
has cast doubt on the ability of any individual piece of
evidence to establish guilt conclusively, he has failed to show
that the evidence, taken on a whole and viewed in the light
most favorable to the prosecution, could not convince a
28 UNITED STATES V . PRESTON

rational trier of fact that the assault occurred. Jackson,
443 U.S. at 319.

IX.

The length of a term of supervised release is part of the
sentence and is reviewed for reasonableness. United States
v. Daniels, 541 F.3d 915, 921 (9th Cir. 2008). We must
consider (1) whether the district court committed significant
procedural error, and then (2) the sentence’s substantive
reasonableness. Id. Whether the district court adequately
explained its reasons for a sentence is a procedural issue,
United States v. Cherer, 513 F.3d 1150, 1159 (9th Cir. 2008),
reviewed de novo, United States v. Hammond, 558 F.3d 1100,
1103 (9th Cir. 2009). If the district court’s sentence is
procedurally sound, we will review the substantive
reasonableness of the sentence for an abuse of discretion.
United States v. Ressam, 679 F.3d 1069, 1086 (9th Cir. 2012).

The district court’s imposition of a lifetime term of
supervised release was procedurally sound. The record does
not support Preston’s assertion that the court “gave no
reasons to justify a life sentence.” The court gave many
reasons including its review of the sentencing factors, the
nature of the offense, and Preston’s characteristics. See
United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (“A
within-Guidelines sentence ordinarily needs little
explanation.”).

Preston also argues that the sentence is substantively
unreasonable, asserting that the court failed to take into
account the sentencing factors provided by 18 U.S.C.
§ 3553(a). Section 3553(a) states that the court must
consider:
 UNITED STATES V . PRESTON 29

the nature and circumstances of the offense
and the history and characteristics of the
defendant . . . [and] shall impose a sentence
sufficient, but not greater than necessary . . .
[1] to reflect the seriousness of the offense, to
promote respect for the law, and to provide
just punishment for the offense; [2] to afford
adequate deterrence to criminal conduct; [3]
to protect the public from further crimes of
the defendant; and [4] to provide the
defendant with needed . . . correctional
treatment in the most effective manner.”
18 U.S.C. 3353(a).

The district court made explicit reference to section 3553(a)
and took these factors into account during sentencing.
Preston argues that the sentence was “greater than necessary”
because his age, mental impairments, and lack of a prior
record should necessitate a lesser sentence. The court
accounted for these facts, and Preston’s argument is not
sufficient to show that the court abused its discretion.

However, the prosecution recommended a lifetime term
of supervised release because “the extent of [Preston’s]
dysfunction” was not clear at the time of the trial. The
prosecutor reasoned that “if [at] some later time it becomes
clear that he has been rehabilitated . . . he can have that term
of supervised release shortened . . . but at no time can Your
Honor lengthen the term of supervised release if you don’t
avail yourself today of the term of lifetime supervised
release.” We cannot, on this record, hold that the court
abused its discretion, but we note that Preston is young and
this can possibly be a very long sentence. We therefore
suggest that the district court, in its own discretion, consider
30 UNITED STATES V . PRESTON

the prosecutor’s recommendation of an alternative sentence,
whereby Preston may satisfy some requirements to have the
term shortened.

X.

Preston failed to object to the conditions of his supervised
release. We therefore review his claims for plain error.
United States v. Blinkinsop, 606 F.3d 1110, 1118 (9th Cir.
2010). “Plain error is (1) an error that (2) is plain, (3) affects
substantial rights, and (4) seriously affects the fairness,
integrity or public reputation of judicial proceedings.” Id. at
1114 n.2.

The district court must provide a defendant with notice
before imposing any condition of supervised release not
contemplated by the Sentencing Guidelines. United States v.
Cope, 527 F.3d 944, 953 (9th Cir. 2008). Preston is incorrect
in arguing that the court failed to provide notice of its
imposition of plethysmograph testing, its prohibition of his
use of sexually explicit materials, and its prohibition of his
being in the company of children. Each is explicitly
mentioned in the presentencing report that Preston’s counsel
received before sentencing and this is sufficient to provide
notice. See United States v. Lopez, 258 F.3d 1053, 1055 (9th
Cir. 2001) (notice of departure from sentencing guidelines
can be found in the presentence report).

Preston also argues that the court did not provide “on-the-
record reasons for imposing” plethysmograph testing. The
district court failed to make specific findings with regard to
this testing. The government admits, as it must, that this was
error. We require specific factual findings before ordering
this testing because individuals have a “particularly
 UNITED STATES V . PRESTON 31

significant liberty interest in being free from plethysmograph
testing.” United States v. Weber, 451 F.3d 552, 568 (9th Cir.
2006). Given the significance of this interest and the Weber
court’s mandate of a “thorough inquiry” before it can be
abrogated, it is not enough to assume that the district court
would have ordered the testing had it conducted the inquiry.
The government has resolved not to pursue this condition and
at oral argument the government recognized and
acknowledged the problem. If upon remand the court elects
to impose plethysmograph testing, it must comply with
Weber in justifying its imposition.

Preston also argues that the condition of his release
forbidding his use of “sexually oriented” or “inappropriate”
materials is vague, such that “men of common intelligence
must necessarily guess at its meaning and differ to its
application.” United States v. Soltero, 510 F.3d 858, 866 (9th
Cir. 2007). The government argues that the definitions for
“sexually oriented” and “inappropriate” materials can be
found in the prior condition’s reference to 18 U.S.C.
§ 2256(2). However, the contested provision states that
Preston shall not use “any other material”—this is meant to
expand on the materials from the prior condition and thus its
use of § 2256(2) is inapplicable. These terms are not clearly
defined, leaving Preston “to guess about the intended
meaning of the terms of his supervised release.” United
States v. Sales, 476 F.3d 732, 737 (9th Cir. 2007). The
government admits, as it must, that the portion of the
condition prohibiting Preston’s use of materials “deemed to
be inappropriate by the probation officer” should be excised.
To impose this condition, the district court must clarify what
material Preston is forbidden to use.
32 UNITED STATES V . PRESTON

Finally, Preston argues that the condition prohibiting him
from being “in the company of . . . children under the age of
18 without prior approval of [his] probation officer” is not
sufficiently definite. Company, as a noun, is defined as “the
quality or state of being a companion or associate of another.”
WEBSTER ’S DICTIONARY 461 (3d ed. 1976). This Court has
concluded that the term “association,” when used in similar
supervised release conditions, is not vague because mere
incidental contacts do not constitute “association.” Soltero,
510 F.3d at 866 (citing Arciniega v. Freeman, 404 U.S. 4, 4
(1971)). The phrase “in the company of,” likewise, is not
vague. Although this phrase is sufficiently definite, a
vagueness issue arises with regard to the latter portion of the
condition that specifies that Preston may not be in the
company of “children under the age of 18.” In Soltero, a
condition of supervised release prohibited “associat[ion] with
any known member of any criminal street gang.” 510 F.3d at
865. This Court noted that Soltero’s argument “that he [was]
expected to know of every gang currently operating on the
streets,” was undermined by the fact that he could only
violate “the condition if the gang member he associate[d]
with [was] known to him to be a gang member.” Id. at 867
n.9 (internal quotation and citation omitted). Unlike the
condition in Soltero, Preston’s condition lacks a mens rea
requirement, which means that Preston must know the age of
every person with whom he comes in contact to comply with
this condition. For example, if, unbeknownst to Preston, one
of his co-workers happens to be a mature-looking seventeen-
year-old, Preston would be in violation of the terms of his
release. Therefore, we request that the district court, on
remand, include a mens rea requirement in this condition.

This supervised release condition also raises a problem in
light of this Court’s recent decision in United States v. Wolf
 UNITED STATES V . PRESTON 33

Child. 699 F.3d 1082 (9th Cir. 2012). In Wolf Child, this
Court invalidated a condition of supervised release that
prohibited a sexual offender from being “in the company of
any child under the age of 18,” in part because the Court
determined that the condition was overbroad. Id. at 1088.
This Court opined that “such [a] broad prohibition[]” was not
“reasonably limited to the goals of deterrence, protection of
the public, or rehabilitation.” Id. at 1101–02. The court
focused on the facts that the condition was an impediment to
Wolf Child’s ability to act as a “responsible father” and that
it prohibited him from “being in the company of any male
child under the age of 18 (without prior approval from his
probation officer), including his nephews and cousins” even
though “there [was] no evidence whatsoever that Wolf Child
ha[d] any sexual interest in young boys or indeed males of
any age.” Id at 1101.

Here, the district court’s imposition of the condition was
procedurally unsound. In Wolf Child, this Court determined
that the condition preventing Wolf Child from being in the
company of his two daughters or from socializing with his
underage fiancée implicated “particularly significant liberty
interest[s],” and therefore required that the district court
“support its decision to impose the condition on the record
with record evidence that the condition . . . [was] necessary
to accomplish one or more of the factors listed in
§ 3583(d)(1) and involve[d] no greater deprivation of liberty
than [was] reasonably necessary,” and to accomplish this,
“the sentencing court, at the time it impose[d] the restrictive
condition,” had to “point to the evidence in the record on
which it relie[d] and explain how on the basis of that
evidence the particular restriction [was] justified.” Id. at
1092 (internal citations and quotation omitted). A similarly
significant liberty interest is at stake here. Although Preston
34 UNITED STATES V . PRESTON

does not currently have children, he may in the future, and
under the terms of his supervised release he could never
associate with them without the permission of his probation
officer. The district court did not follow the necessary
procedure to infringe on this significant liberty interest.
However, unlike in Wolf Child, where this Court determined
that remand was not appropriate because “the record [was]
sufficient to determine that there [was] no plausible basis for
the imposition of that part of the condition,” and the condition
was, therefore, substantively unreasonable, facts exist in the
record of this case that may justify the imposition of this
condition. See id. at 1096. It is necessary on remand for the
district court to explain adequately its reasons for imposing
this condition in light of Wolf Child or, if it cannot, to narrow
the condition appropriately.

XI.

We REMAND for the district court to reconsider the
plethysmograph testing requirement, to clarify the condition
that Preston “shall not possess, view, or otherwise use any
other material that is sexually stimulating, sexually oriented,
or deemed to be inappropriate by the probation officer and/or
treatment provider,” to adjust his probation requirements so
that they are definite and certain, and to provide adequate
explanation for Preston’s conditions of supervised release.

AFFIRMED in part, REMANDED for resentencing.
 UNITED STATES V . PRESTON 35

NOONAN, Circuit Judge, dissenting:

The only evidence against the defendant is a coerced
confession. I will take up the elements of the government’s
case in turn.

I. The Child’s Account

A temptation exists to refer to the child’s story as
“testimony.” The government in its brief (e.g. p. 69) and the
majority in its opinion (e.g. Maj. Op. at 27) yield to this
temptation. But the child’s story is not testimony. The story
was not told under oath. The story was not subject to cross-
examination. It was only an unsworn and untested tale.

The district court found a dozen or more facts of the
child’s tale were “obviously not factual”:

-that Preston came to the child’s house and
had threatened to kill him the previous day;

-that the child called 911;

-that Preston tried to stab the child with a
knife;

-that the child locked Preston in the child’s
bedroom with a key;

-that Preston climbed out of the window and
onto the roof and jumped off;

-that the child was hiding under a blanket so
Preston could not see him;
36 UNITED STATES V . PRESTON

-that Preston followed the child’s tracks and
fell into a water hole;

-that Preston then drove a monster truck off a
cliff and the police followed him with
helicopters and cars;

-that the child threw knives at Preston’s heart;

-that Preston tried to rape the child’s sister,
but that he did not because kittens scratched
him;

-that the child ran outside and killed a robber
and almost killed Preston.

In the farrago of fantasy, no fact identifies itself as worthy of
belief.

After examining the child, the forensic examiner
concluded:

[He] described events that are unsupported by
the subsequent forensic examination of the
victim and his clothing. For example, the
victim indicated that during the course of the
assault Preston ejaculated in his mouth, on his
lips, on his red shirt, and on his stomach. The
forensic examination of the victim and the
clothing he was wearing nevertheless revealed
neither evidence of any semen nor the
existence of any red shirt. For that matter the
physical examination of the victim showed no
signs of trauma or semen.
 UNITED STATES V . PRESTON 37

It is undisputed that there exists no physical evidence of
sexual contact. The forensic examiner, a key government
witness, found no semen and no trauma.

II. Inconclusive DNA Evidence

The government does not argue that there exists DNA
evidence of sexual contact between the child and Preston.

III. Confession Alone Is Not Enough

A defendant cannot be convicted on a confession alone.
In United States v. Norris, 428 F.3d 907, 915 (9th Cir. 2005),
this circuit found that the state must “introduce sufficient
evidence to establish that the criminal conduct at the core of
the offense has occurred.” Norris, 428 F.3d at 914-15 (citing
United States v. Lopez-Alvarez, 970 F.2d 583, 592 (9th Cir.
1992)). Accordingly, this circuit reversed the defendant
Norris’s conviction for sexual molestation because the
“government produced no evidence to corroborate Norris’s
confession that the core of the act, Norris’s touching of T.V.’s
vulva with his penis, actually occurred.” Id.

Here, the government has produced no evidence to
corroborate Preston’s confession that the “core of the act” –
sexual contact – “actually occurred.” Id.

IV. Failure of Confession to Satisfy Statute

Even if we were to consider the confession alone,
violating the law of this circuit, Preston’s confession fails to
satisfy the statute. The government must prove beyond a
reasonable doubt that Preston was guilty of “knowingly
engag[ing] in abusive sexual contact” with the “intent to
38 UNITED STATES V . PRESTON

abuse, humiliate, harass, degrade, or arouse or gratify the
sexual desire of any person.” 18 U.S.C. §§ 2244, 2245(3).
Preston’s confession shows no such intent.

V. The Coerced Confession of The Mentally Retarded Youth

Preston’s “confession” should not be considered at all
because it is involuntary.

Agent Kraus and Investigator Secatero questioned Preston
on the front porch of his house. Secatero told Preston that
“there’s two types of people.” The first type was a “monster,”
a “sexual predator,” the “type to prey on little kids.” This type
was a “cold-hearted person” for whom they “don’t show any
sympathy.” The second type, Kraus and Secatero explained,
was not a monster but a “guy that had a bad day” who did a
“one time thing.” This second type could “move on,” because
what transpired was “just a misunderstanding.” Secatero told
Preston that the officers wanted to know “which kind of
person” he was. He asked Preston, “Which … person are
you? Are you that type where you prey on little kids?”
Preston said he was not.

After giving Preston two criminal alternatives, Secatero
and Kraus proceeded to ask Preston a series of questions that
forced him to choose between damaging admissions:

-“Is it because […] you wanted to have sex
[…] or is he the one that came onto you?”

-“Is it something where you forced the issue
or is it something he wanted?”

-“Did he pull away or did you pull out?”
 UNITED STATES V . PRESTON 39

-“Did all of your penis go in [or] just a little
bit?”

-“Did you do it a lot or just that one time?”

In each case, Preston chose the less damaging admission. At
times, the loaded questions were more akin to statements. To
these, Preston was silent, said he didn’t know, or denied the
claims. Agent Kraus said, for instance, “He pulled his pants
down?” Preston said he didn’t know. Kraus said, “Did you
pull your pants down too?” Preston said, “No.” Kraus said,
“You just unzipped your zipper?” Preston was silent. Kraus
said, “He pulled his pants up and I assume you zipped up,
too.” Preston was silent. Nearly every detail was planted by
the officers.

Loaded questions are difficult for intelligent persons. For
a feeble mind, they are nearly impossible. Preston is eighteen
and has a brain “like a five year old.” He has an IQ of 65.
Preston’s IQ places him in the range of mental retardation.
Atkins v. Virginia, 536 U.S. 304, 309 n.5, 318 (2002). When
asked whether he was “disabled,” Preston asked the officers
to explain the word’s meaning. When explained the word’s
meaning, Preston agreed that he probably was disabled. See
Morgan Cloud, Words Without Meaning: The Constitution,
Confessions, and Mentally Retarded Suspects, 69 U.CHI. L.
REV. 495, 511-13 (2002) (finding that mentally retarded
people do not understand their limitations and “feel
compelled to answer a question, even if the question exceeds
[their] ability to answer”).

No one can seriously argue that the paper signed by
Preston was comprehended by Preston as a document of
grave legal import. Kraus told Preston that the paper was
40 UNITED STATES V . PRESTON

merely a way to say “sorry” to [the child]: “Do you want to
write any – usually what we do is we write a statement. If,
like, you wanted to say sorry or something like that. You
could definitely do that. And we can provide that to him.”
Preston’s response was hardly assent: “I’ll just say I’m sorry
for what I did, but they’re just trying to accuse me of that shit.
But fuck – I mean, not like that.” Ignoring Preston’s
equivocation, Kraus assured Preston that the statement was
“just a kind of summary.”

The “summary”—Preston’s confession—was a brief
gathering of details selected by the officers, culled to their
purposes, and written by their hand. The details they selected
were details they had fed him. Not once did Preston revise,
correct, or counter the officers’ dictation of the statement.
Agent Kraus said, for instance, “You just unzipped your
zipper?” Preston was silent. Kraus said, “You pulled your
penis out, and you put a condom on?” Preston was silent.
Each of these details was transferred into the written
statement. Kraus asked Preston, “Do you want me to put
you’re sorry […]? Are you sorry or not sorry?” Preston chose
the option that kindergarten teaches as proper. When Agent
Kraus finished writing the statement, he said to Preston, “I’m
going to have you sign this.” Preston signed.

There is no evidence that Preston read what the officer
wrote. It is difficult to describe Preston’s choice between bad
alternatives, actual denials, and ambiguous silence as “a
product of a rational intellect and a free will,” a necessary
condition for an admissible confession. Blackburn v.
Alabama, 361 U.S. 199, 208 (1960).

The majority asserts that coercion of a mentally impaired
person “appears to turn largely on the length of the
 UNITED STATES V . PRESTON 41

interrogation.” This reading is unsubstantiated. Nowhere does
case law state such a rule. Length of an interrogation is one
factor; mental deficiency is another. A short interrogation
does not reduce the relevance of the defendant’s mental
capacity.

The majority notes that the interrogation occurred at
Preston’s house with others present. Yet Preston was
distinctly vulnerable at his house. Both officers had arrived in
unmarked vehicles, and both were dressed in plain clothes.
Preston had no prior record and had never spoken to police
before. The officers undoubtedly checked his record and
knew he lacked experience with law enforcement. The
officers learned quickly that neither Preston’s mother nor
father was home. Preston himself was eighteen years old. The
only others present were two children. Questioning Preston,
the officers rapidly surmised his questionable mental
capacity, asking him point-blank if he was disabled. By
himself on his porch, Preston was vulnerable.

VI. Unreliability of Confessions From Mentally Retarded
People

Confessions from mentally retarded people are prone to
be false.

Preston’s confession is unreliable. Preston was ready to
sign a confession to a crime with the wrong date and did so.
The police officers told Preston, at least fifteen times, that he
had been home on Friday to commit the crime; the officers
later admitted that they meant to say Wednesday. Although
Preston had a regular routine on Fridays of leaving his house
to see his aunt, he was so suggestible that he agreed with the
officers that he had been home on Friday. Preston’s statement
42 UNITED STATES V . PRESTON

meets the textbook case of a false confession: Preston was
given a false detail of the crime, and he accepted it as an
actual fact. (“One method for checking the authenticity of a
voluntary confession, or one that seems to be the result of a
mental illness, is to introduce some fictitious aspects of the
crime and test whether the suspect will accept them as actual
facts relating to the occurrence.” F. INBAU , J. REID , J.
BUCKLY , & B. JANE, CRIMINAL INTERROGATIONS AND
CONFESSIONS, 349 (5th ed. 2011)).

As the officers dictated the statement for Preston to sign,
Preston was either silent or made unintelligible sounds. The
truth of what transpired remained unarticulated by him. As
researchers have found, the “tendency [of retarded people] to
mask their disabilities,” combined with the widespread
ignorance of mental retardation, “make it difficult for police
and others to properly interpret the responses of mentally
retarded persons.” Eugene R. Milhizer, Confessions After
Connelly: An Evidentiary Solution for Excluding Unreliable
Confessions, 81 TEMP. L. REV. 1, 15 (2008). As a result,
police detectives can “create false confessions by pressuring
the suspect to accept a particular account and suggesting
crime facts to him, thereby contaminating [his] narrative.”
John B. Gould & Richard A. Leo, One Hundred Years Later:
Wrongful Convictions After a Century of Research, 100
J. CRIM . L. & CRIMINOLOGY 825, 849 (2010).

Confessions from mentally retarded suspects, in particular
youth, are “per se untrustworthy.” See Welsh White, False
Confessions and the Constitution: Safeguards Against
Untrustworthy Confessions (1997), 32 HARV . C.R.-C.L. REV .
105. In a recent study of the first 200 DNA exonerations in
the U.S., 35% of the false confessors were 18 years or
younger and/or had a developmental disability. Saul M.
 UNITED STATES V . PRESTON 43

Kassin et al., Police-Induced Confessions: Risk Factors and
Recommendations, 34 LAW & HUM . BEHAV . 3, 19-22 (2010).
Another study found that 69% of the exonerated persons with
mental disabilities were wrongly convicted because of false
confessions. Id. See also Brandon L. Garrett, The Substance
of False Confessions, 62 STAN . L. REV . 1051, 1064 (2010)
(“Mentally disabled individuals and juveniles are both groups
long known to be vulnerable to coercion and suggestion.”);
Gould at 847 (noting that “the developmentally disabled,
cognitively impaired, juveniles—all of whom tend to be
unusually suggestible and compliant”—are more likely to
confess falsely); Milhizer at 14 (“Certain characteristics
common among mentally retarded persons make them
particularly prone to confess falsely. For example, mentally
retarded suspects are often motivated by a strong desire to
please authority figures, even if to do so requires them to lie
and confess to a crime they did not commit. They also often
lack the ability to understand the nature of police
questioning.”).

The majority writes that recognizing the cognitive
impairment of Preston and his susceptibility to coercion
would “significantly broaden” this court’s jurisprudence. The
law is more capacious than the majority admits. In Atkins, the
Supreme Court determined that, due to “cognitive and
behavioral impairments,” including “the diminished ability to
understand and process information, to learn from experience,
to engage in logical reasoning,” mentally retarded people
categorically are at risk of producing false confessions.
Atkins, 536 U.S. at 320. Indeed, the Court noted the
exonerations of mentally retarded people who had
“unwittingly confessed to crimes they did not commit.” Id.
See also Culombe v. Connecticut, 367 U.S. 568, 620 (1973)
(holding involuntary the confession extracted from a “thirty-
44 UNITED STATES V . PRESTON

three-year-old mental defective . . . with an intelligence
quotient of sixty-four”); Commonwealth of the Northern
Mariana Islands v. Mendiola, 975 F. 2d 475 (9th Cir. 1993)
(finding confession involuntary on the basis that
“consideration of defendant’s reduced capacity is critical
because it rendered him more susceptible to subtle forms of
coercion,” and citing the low intelligence of defendants in
Reck v. Pate, 367 U.S. 433 (1961) and Payne v. Arkansas,
356 U.S. 560, 562, 567 (1958)).

*

The majority thoughtfully asked the district court to
reconsider its order approving the plethysmograph, but the
majority does not ban it. I have already expressed in a
concurring opinion a critique of this procedure. See United
States v. Weber, 451 F.3d 552, 570–71 (9th Cir. 2006). For
the reasons stated in my concurrence in Weber, I would ban
this procedure altogether. Psychiatric researchers have
referred to my criticism with approval. See, e.g., Michael
Harlow and Charles Scott, “Penile Plethysmography Testing
for Convicted Sex Offenders,” 35 JOUR. OF THE AMER .
ACAD . OF PSYCH . AND THE LAW (2007).