FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TYMOND J. PRESTON,

Defendant-Appellant.

No. 11-10511 

D.C. No. 

3:10-cr-08026-

GMS-1

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

 This summary constitutes no part of the opinion of the court. It has

*

been prepared by court staff for the convenience of the reader.

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
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-theevidence 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 DefendantAppellant.

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

 This case involves a juvenile victim whose identity has been 1

protected. 

I. 

At some time in the evening on Wednesday, September

23, 2009, TD , an eight-year-old boy, entered Tymond 1

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. 
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 fortyminute, 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’sforensic 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 twentyfour 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

bythe 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-therecord 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 seventeenyear-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 crossexamination. 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).