UNITED STATES of America, Plaintiff-Appellee, v. Tymond J. PRESTON, Defendant-Appellant.
No. 11-10511.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted En Banc Dec. 10, 2013. Filed May 12, 2014.
751 F.3d 1008
For the foregoing reasons, we AFFIRM the district court‘s denial of Cabrera-Perez‘s motion to dismiss the indictment.
Mark S. Kokanovich (argued), Michael T. Morrissey and Bridget S. Bade, Assistant United States Attorneys for the District of Arizona; Ann Birmingham Scheel, Acting United States Attorney for the District of Arizona; and Karla Hotis Delord, Acting Deputy Appellate Chief for the District of Arizona, Phoenix, AZ, for Plaintiff-Appellee.
OPINION
BERZON, Circuit Judge:
Today we consider the voluntariness of a confession given by Tymond Preston, an intellectually disabled eighteen-year-old. To elicit this confession, the police, among other tactics, repeatedly presented Preston with the choice of confessing to a heinous crime or to a less heinous crime; rejected his denials of guilt; instructed him on the responses they would accept; and fed him the details of the crime to which they wanted him to confess. Under the totality of the circumstances, including Preston‘s intellectual disability, we conclude that the confession that resulted from this questioning was involuntarily given and should not have been admitted at trial.
I
Background
A. The Accusation
At the time of the underlying events, Tymond Preston was eighteen years old. Preston has an IQ of sixty-five, which the Supreme Court recognizes as within the range of intellectual disability.1 See Atkins v. Virginia, 536 U.S. 304, 309 n. 5, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (describing an IQ below seventy-five as within the range of mental retardation).2 He attended special education classes beginning in elementary school, and did so until he dropped out of high school. Preston‘s mother said that a doctor told her that Prеston had a “small brain, like a five-year-old.” Psychological evaluations conducted during the course of this litigation show that Preston has “exceptionally limited linguistic ability,” and “significant problems with verbal communication and comprehension.”3 The district court found that he had “deficits in general linguistic and academic skills and low IQ.” Before the offense addressed in this appeal, Preston had been arrested twice for minor juvenile offenses but had never been convicted of any offense or adjudicated delinquent.
Preston lived with his mother and father on the Navajo Nation. An extended fami-
Some time on Wednesday, September 23, 2009, Preston‘s eight-year-old neighbor—a child in the household with whom Preston‘s family was feuding, and the grandchild of Preston‘s aunt—entered and later left Preston‘s house. That evening, the child reportedly told his grandparents and uncle that Preston “‘put his pee-pee in [my] butt,‘” and that “his butt was hurting.” The grandparents called the police.
When asked about this assertion the next day by Carli Moncher, a forensic interviewer for the Safe Child Center at Flagstaff Medical Center, the child spun a lengthy, fantastical, largely incomprehensible narrative. The tale, in brief, was: Preston had come to his house the day before and threatened to kill him with a knife; the child locked Preston in his bedroom, and Preston escaped by going out the window; the child called 911, climbed on top of a shack, jumped off of it, and ran away; Preston followed the child‘s tracks and found him hiding in the bushes; the child ran home and hid while watching a movie with his sister; he and his sister climbed out the window and then down a cliff on a ladder, while Preston jumped over the cliff in a “monster truck“; the child then got into a fight with Preston and kicked him “in the balls,” and Preston “fell out the window“; Preston came to his school in the monster truck, and the police followed, chasing Preston in cars and helicopters and shining a yellow light at Preston and his house; the child and his sister climbed onto the shack and jumped off; Preston jumped over and broke his leg; Preston then came to his house and was “trying to fuck [his sister‘s] butt,” at which point the child tried to beat up Preston, hitting him in the head and face; the rape was eventually forestalled when the child‘s kittens began scratching Preston; and the child then also “took a lot” of knives and threw them at some robbers, hitting one “right ... in the heart,” and killing him. As the district court observed after hearing this story, “[m]any of these details are obviously not factual.”
As to the alleged sexual contact, the boy stated that Preston pulled the child‘s underwear down, “put his penis in my butt,” and touched the boy‘s “balls” and “butt” with his mouth. He also stated that Preston told him to “suck his balls,” and when the child did, “white stuff got on my shirt” and “on my lips.” The boy described the shirt he was wearing as red, and said it was at his home in a bag. He further alleged Preston had tried to “cut ... my balls” and that “next he cut his balls.” He also said that Preston had started the attack by dragging him by his shirt and choking him.
On the same day he gave this account to Moncher, the boy was interviewed by a nurse practitioner. The nurse asked him, “Did [Preston] put something on his dick?” and the child responded, “He just put on the dick wearing,” which the parties assume refеrs to a condom. When asked what happened to the “dick wearing,” the child said that “[i]t got white stuff on it,” and that Preston “threw it away.”
Most of the child‘s allegations of sexual abuse were not corroborated by physical evidence. Although swabs were taken from various parts of the child‘s body, including his lips, anus, and genitals, the forensic examiner found no evidence of semen on the child. The child had a “normal genital and anal exam,” and no signs of injuries, bruises, or trauma of any kind, although he complained of pain during the
B. The Confession
About a week after the boy reported that he had been assaulted, Federal Bureau of Investigation (“FBI“) Special Agent James Kraus and Navajo Nation Criminal Investigator Greg Secatero (“the officers“) went to Preston‘s home to question him about the allegations. To aid the investigation, the FBI had obtained Preston‘s Navajo Nation certificate of Indian Navajo blood, which revealed that he was eighteen years old. The officers noticed the notation, as they commented to Preston, “you‘re a young guy, 18 years old.”
Kraus and Secatero questioned Preston outside his house, next to Kraus‘s vehicle. They began recording their interaction with Preston within “one or two minutes” of approaching him. The interrogation lasted about forty minutes.
The officers quickly became aware of Preston‘s mental disability. A short time into the questioning, Preston told them that “I‘m not ... all there,” and that “I have problems with my head, like a tumor.” Recognizing that Preston may be impaired, Secatero asked him, “Are you disabled right now?” Preston did not understand the question. “What‘s that, disabled?,” he asked. When Secatero explained that “disabled mean[s] you‘re not able to take care of yourself or you‘re not able to ... get a job,” Preston agreed that he was disabled. He also explained that he had not finished high school.
The agents told Preston that they were investigating a “molestation” that took place “last Friday.”6 Preston said that he was not home the prior Friday. All parties now agree that Preston was in fact not home on the Friday in question, as he routinely visits a cousin on Fridays. But the officers rejected as false—over and over again—Preston‘s accurate responses to the “Friday” assertions, and repeated throughout most of the interrogation that the incident did take place on Friday. Secatero said, for example, “We just don‘t buy it,” and “Friday, I know you remember you were here“; and insisted “you have to remember what happened Friday“; Kraus, too, informed Preston that it was “not disputable” that the child had been at Preston‘s house on Friday, and stated, incorrectly, that “we have a bunch of people that said you were over here.” Eventually, Preston was told, “the fact is, we know you were here,” and “[t]here‘s other witnesses putting you here, so there‘s no denying” it. Preston eventually stopped disagreeing with the assertion that he was home on Friday.7
When Secatero asked Preston directly, “which person are you? Are you that type where you prey on little kids?,” Preston answered that he was not. Secatero then asked several times if Preston had done “a one-time thing.” Preston gave confused, equivocal responses, including “I don‘t know, probably, but I don‘t know. But I don‘t fuckin’ do that shit,” and “Something probably like that, one time. But I‘m not, like, whatever you ... guys are trying to think, that what I‘m trying to do, like with everything, but, but fuck, I—I ain‘t like that.”
During this time, the officers told Preston that he was “not arrested” and “not in custody,” but also informed him that “[a]f-ter the interview, you‘re free to go,” (emphasis added), indicating that he was free to stop talking to them only when they terminated the interview.8 The two interrogators also conveyed, repeatedly, that Preston had to tell them something, or they would keep coming back until he did. For example, Kraus told Preston: “We don‘t want to come back here later“; “we‘re needing to figure out something because we don‘t have to come back here again and again“; “we got to figure out exactly what happened and without you saying anything, that‘s—that‘s not helping anyone, you know, because then we‘re going to have to keep coming back and—and until we figure exactly what out“; “we don‘t want to come back and say, hey, man, you lied to us.” Secatero later said, “you got to tell me what—what happened Friday” and “you have to remember what happened Friday.” (emphasis added). At the hearing on Preston‘s motion to suppress, Kraus acknowledged that he meant Preston to understand that the officers would keep coming back until Preston admitted what happened with the child.
Eventually, more than twenty minutes into the questioning, Preston acquiesced in the assertions that he was in fact at home on Friday—even though he was not. So,
Having gotten Preston to stop protesting that he was not at his house on Friday, Secatero and Kraus proceeded to ask Preston a series of questions that required him to choose between two incriminating alternatives. For example:
“[I]s it because you wanted to have sex? ... Or is it he‘s the one that came onto you?”
“[I]s it something ... where you forced the issue or is it something that he wanted?”
“[D]id he pull away or did you pull out?”
“Did you ... put your penis in all the way or just a little bit?”
“Did you do it a lot or just that one time?”
In each case, presented with two incriminating choices, Preston chose the less incriminating one.
The officers also asked a number of leading and suggestive questions that introduced facts Preston himself never mentioned until the officers brought them up. Preston agreed to some of these facts.
Eventually, Preston nodded when asked if he put his penis inside of the child‘s “butt,” stated he did this for “five, six seconds,” and that the child then “walked out,” “said, I‘m going to tell on you,” and “started crying.” Kraus then wrote out a statement summarizing the admissions the officers had elicited from Preston.9
The officers twice misled Preston about the statement‘s purpose. First, they promised Preston that they would not “tell this to anybody,” and the statement would never leave the U.S. Attorney‘s file. Later, they told him that the statement they would write up was just an apology note to the child, 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 to that suggestion was equivocal—that he would say “I‘m sorry for what I did, but they‘re just trying to accuse me of that shit. But fuck, I‘m not ... like that.” Ignoring Preston‘s equivocation, Kraus told Preston he would “just summarize” their conversation in the apology note. According to Kraus, Preston was never informed that “he might be signing something that could be used later in a court of law.”
The “summary“—Preston‘s confession—was a brief gathering of details chosen by the officers, and written out in Kraus‘s hand. Many of the details selected were those the officers had fed Preston. For example, Kraus was the first to bring up the possibility that Preston used a condom; Kraus testified that he did so because he understood the child had discussed a condom during the forensic interview. At first, when Kraus asked, “Did you use a condom?” Preston responded “I don‘t know.” Only after the officer persisted, saying, “Yeah, you did?,” did Preston finally acquiesce, by nodding. Kraus later reinforced the point, “[Y]ou had a condom on, correct?” While Kraus was writing the
Similarly, the officers also fed Preston the detail that he “unzipped” his pants, which was included in the written statement. Initially, when Kraus asked Preston, “You just unzipped your zipper?,” Preston responded, “I don‘t know.” The officers then affirmatively repeated several times, “you unzipped your pants“; Preston eventually indicated assent to this fact.
As Kraus was writing the summary, he repeated back the information that he was including in question form and asked Preston periodically if it was correct. Preston never revised, corrected, or countered Kraus‘s version.
After Kraus finished writing the statement, Kraus informed Preston, “I‘m going to hаve you sign this.” Preston signed.
C. The Proceedings
Preston was charged in federal district court with aggravated sexual abuse of a minor in violation of
Thereafter, Preston and the government agreed that Preston would waive his right to a jury trial if the government would reduce his charge to the lesser offense of abusive sexual contact, which carries no minimum prison sentence, and recommend that he receive no more than a fifteen-year sentence. After a three-day bench trial, the district court found Preston guilty of that charge. Preston was sentenced to fifty months’ imprisonment and a lifetime term of supervised release.
Preston appealed the conviction on a number of grounds, including that the confession was involuntary. A panel of this court held the confession properly admitted; Judge Noonan dissented. United States v. Preston, 706 F.3d 1106 (9th Cir. 2013). Preston filed a petition for panel rehearing and rehearing en banc. A majority of the active judges on the court voted to rehear the case en banc. United States v. Preston, 727 F.3d 894 (9th Cir. 2013).
II
Legal Principles Regarding Voluntariness of Confessions
The right against compulsory self-incrimination is “the mainstay of our adversary system of criminal justice, and ... one of the great landmarks in man‘s struggle to make himself civilized.” Michigan v. Tucker, 417 U.S. 433, 439, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974) (internal quotation marks and citations omitted). “This principle, branded into the consciousness of our civilization by the memory of the secret inquisitions, sometimes practiced with torture, which were borrowed briefly from the continent during the era of the Star Chamber, was well known to those who established the American governments.” Culombe v. Connecticut, 367 U.S. 568, 581, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961). “Its essence is the requirement that the State which proposes to convict and punish an individual produce the evidence against him by the independent labor of its officers, not by the simple, cruel expedient of forcing it from his own lips.” Id. at 581-82.11
A
In implementing this bedrock constitutional value, our focus is on “whether [the] defendant‘s will was overborne by the circumstances surrounding the giving of [the] confession,” an inquiry that “takes into consideration the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation.” Dickerson v. United States, 530 U.S. 428, 434, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)) (internal quotation marks omitted) (emphasis added).
“Each of these factors, in company with all of the surrounding circumstances—the duration and conditions of detention (if the confessor has been detained), the manifest attitude of the police toward him, his physical and mental state, the diverse pressures which sap or sustain his powers of resistance and self-control—is relevant.” Culombe, 367 U.S. at 602; see also Withrow v. Williams, 507 U.S. 680, 693-94, 113 S.Ct. 1745, 123 L.Ed.2d 407 (1993). Thus, the voluntariness inquiry “is not limited to instances in which the claim is that the police conduct was ‘inherently coercive,‘” Miller v. Fenton, 474 U.S. 104, 110, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985) (quoting Ashcraft v. Tennessee, 322 U.S. 143, 154, 64 S.Ct. 921, 88 L.Ed. 1192 (1944)), but “applies equally when the interrogation techniques were improper only because, in the particular circumstances of the case, the confession is unlikely to have been the product of a free and rational will,” id. (citing Mincey v. Arizona, 437 U.S. 385, 401, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978)). Ultimately, the voluntariness “determination ‘depend[s] upon a weighing of the circumstances of pressure against the power of resistance of the person confessing.‘” Dickerson, 530 U.S. at 434 (quoting Stein v. New York, 346 U.S. 156, 185, 73 S.Ct. 1077, 97 L.Ed. 1522 (1953), overruled in part on other grounds by Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964)) (alteration in original).
B
These principles have particular application where, as here, the individuаl interrogated is of unusually low intelligence. “What would be overpowering to the weak of will or mind might be utterly ineffective against an experienced criminal.” Stein, 346 U.S. at 185. So, although low intelligence does not categorically make a confession involuntary, it is “relevant ... in establishing a setting” in which police coercion may overcome the will of a suspect. Procunier v. Atchley, 400 U.S. 446, 453-54, 91 S.Ct. 485, 27 L.Ed.2d 524 (1971). The American Bar Association‘s Criminal Justice Mental Health Standards summarize this point well: “Official conduct that does not constitute impermissible coercion when employed with nondisabled persons may impair the voluntariness of the statements of
Accordingly, we cannot resolve this case by labeling the questioning either inherently coercive or not. Instead, we must evaluate the law enforcement tactics used in conjunction with Preston‘s serious intellectual disability.
C
Also consistent with the directive that we must consider “all the surrounding circumstances,” Dickerson, 530 U.S. at 434, in determining the voluntariness of a confession is that there is “no talismanic definition of ‘voluntariness,’ mechanically applicable to the host of situations where the question has arisen,” Schneckloth, 412 U.S. at 224. Because there is no “single controlling critеrion,” no single factor, such as length of interrogation, can be dispositive. Id. at 226.
Doody v. Ryan, 649 F.3d 986 (9th Cir.2011), an en banc opinion of this court, provides guidance for carrying out the multivariate inquiry essential to the voluntariness inquiry: We may not “tick[] off the list of circumstances rather than actually considering them in their totality.” Id. at 1011. So it is not enough for courts to “list[] the circumstances of [an] interrogation separately on a piece-meal basis.” Id. (internal quotation marks omitted). Courts must “weigh, rather than simply list,” the relevant circumstances, and weigh them not in the abstract but “against the power of resistance of the person confessing.” Id. at 1015-16 (internal quotation marks omitted).
D
One final point as to the nature of the voluntariness inquiry, and one that is easy to elide: In evaluating the voluntariness of a confession under the totality of the circumstances, we are not trying to determine whether the suspect told the truth when he confessed. “[C]onvictions following the admission into evidence of confessions which are involuntary, i.e., the product of coercion, either physical or psychological,” are tenuous not simply “because such confessions are unlikely to be true.” Rogers v. Richmond, 365 U.S. 534, 540-41, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961). “As important as it is that persons who have committed crimes be convicted, there are considerations which transcend the question of guilt or innocence.” Blackburn v. Alabama, 361 U.S. 199, 206, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960). We exclude coerced confessions “because the methods used to extract them offend an underlying principle in the enforcement of our criminal law.” Rogers, 365 U.S. at 540-41. That basic principle is that “[o]urs is the accusatorial as opposed to the inquisitorial system.” Watts v. Indiana, 338 U.S. 49, 54, 69 S.Ct. 1347, 93 L.Ed. 1801 (1949). “To maintain a fair state-individu-
Because of these considerations, the question whether a confession was vol-
E
The government would have us depart to a considerable degree from the well-established set of principles just outlined, by determining first whether the police‘s conduct here was inherently coercive, and, if not, holding the confession voluntary without regard to the likely impact on an
The government is correct that in Derrick v. Peterson, 924 F.2d 813 (9th Cir.1991), a panel of our court stated that the defendant‘s individual characteristics “are relevant to our due process inquiry only if we first conclude that the police‘s conduct was coercive.” Id. at 818 (emphasis added). To the extent Derrick held that the issue of police coercion during an interrogation must be considered without regard to the suspect‘s individual characteristics, it simply cannot be reconciled with the Supreme Court‘s totality-of-the-circumstances analysis applicable to the voluntariness inquiry; with the Court‘s specific directives, already surveyed, concerning the role of individual characteristics—including mental characteristics—in the voluntariness inquiry; or with our fairly recent en banc decision, Doody. Moreover, Derrick, and the government‘s argument relying on Derrick, rest on an evident misreading of Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986).
For its holding that individual characteristics may be considered only if the court first finds impermissible police coercion, Derrick relied principally upon Connelly. See Derrick, 924 F.2d at 818 (discussing Connelly, 479 U.S. at 163 & n. 1, 167). But Connelly concerned a confession by an individual who spontaneously approached an officer, and “without any prompting,” admitted “that he had murdered someone.” Connelly, 479 U.S. at 160.14 Connelly‘s holding was simply that “[a]bsent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law.” Id. at 164. It was on that premise that Connelly held the confession voluntary, explaining “that while mental condition is surely relevant to an individual‘s susceрtibility to police coercion, mere examination of the confessant‘s state of mind can never conclude the due process inquiry.” Id. at 165 (emphasis added). Ultimately, the Court held that “coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary,‘” id. at 167, thereby reiterating its earlier rejection of the proposition that “a defendant‘s mental condition, by itself and apart from its relation to official coercion, should ever dispose of the inquiry into constitutional ‘voluntariness,‘” id. at 164 (emphasis added). In so ruling, Connelly reaffirmed, rather than departed from, the established law—that “[w]hile the state of the accused‘s mind” was “certainly [a] factor[] to be evaluated in assessing the ‘voluntariness’ of an accused‘s responses, [it was] not in and of [itself] determinative.” Schneckloth, 412 U.S. at 227.
For these reasons, to the extent that Derrick held that the issue of police coercion during interrogations must be evaluated without regard to the individual circumstances of the suspect, it cannot be reconciled with prior opinions of this Court or with binding Supreme Court precedent. As previously noted, Derrick is irreconcilable with our post-Derrick en banc opinion in Doody, and so already is not binding authority in our court. Because the three judge panel in this case relied upon Derrick despite our holding in Doody, we now explicitly hold that Derrick no longer is good law and overrule it, as well as subsequent opinions that have relied upon it. See Amaya-Ruiz v. Stewart, 121 F.3d 486, 495 (9th Cir.1997) (citing Derrick); United States v. Chischilly, 30 F.3d 1144, 1151 (9th Cir.1994) (citing Derrick).
III
Voluntariness of Preston‘s Confession
We now turn to whether, under all of the circumstances—including Preston‘s age, intellectual disability, and lack of sophistication, and the interrogation techniques used—there was coercive police action which overbore Preston‘s will and rendered his confession involuntary. In doing so, we consider the district court‘s factual account of what happened during the interrogation under the clearly erroneous test. United States v. Wolf, 813 F.2d 970, 974 (9th Cir.1987) (citing United States v. McConney, 728 F.2d 1195, 1200 (9th Cir.1984) (en banc)). We note that there can be no dispute as to what happened during the interrogation itself. We have the audiotapes and transcript of the interrogation, and so “are not consigned to an evaluation of a cold record, or limited to reliance on the detectives’ testimony.” Doody, 649 F.3d at 1009.
We review de novo the district court‘s conclusion that the confession was voluntary. Wolf, 813 F.2d at 974. “Although sometimes framed as an issue of ‘psychological fact,’ the dispositive question of the voluntariness of a confession has always had a uniquely legal dimension.” Miller, 474 U.S. at 115-16. “The notion of ‘voluntariness’ is itself an amphibian” and “purports at once to describe an internal psychic state and to characterize that state for legal purposes.” Culombe, 367 U.S. at 604-05. Ultimately, “the admissibility of a confession turns as much on whether the techniques for extracting the statements, as applied to this suspect, are compatible with a system that presumes innocence and assures that a conviction will not be secured by inquisitorial means as on whether the defendant‘s will was in fact overborne.” Miller, 474 U.S. at 116. Thus, the voluntariness determination “reflects deep, even if inarticulate, feelings of our society” about the acceptability of the imposition of certain interrogation methods on a particular person. Haley, 332 U.S. at 603 (Frankfurter, J., concurring). This “focus on the constitutional acceptability of the government conduct rather than merely on the defendant‘s state of mind at the time of the confession requires us to consider legal concepts in the mix of fact and law and to exercise judgment about the values that animate legal principles.” Wolf, 813 F.2d at 974 (citation and internal quotation marks omitted).
In short, because of the interweaving of factual, legal, and judgmental considerations, our voluntariness review is de novo.
Applying de novo review, we conclude that, in light of the totality of the circumstances, including Preston‘s individual characteristics, his confession was involuntary.
A
(1) We begin with “[c]onsideration of [Preston‘s] reduced mental capacity,” a factor that is “critical because it [may] render[] him more susceptible to subtle forms of coercion.” N. Mariana Islands v. Mendiola, 976 F.2d 475, 485 (9th Cir.1993), overruled on other grounds by George v. Camacho, 119 F.3d 1393 (9th Cir.1997) (en banc).
Preston was eighteen, with an IQ of sixty-five. The two officers realized early in the interrogation that Preston suffered some sort of intellectual disability, as his initial responses gave them cause to believe that he had an impairment. They therefore inquired directly if he was “disabled.” Preston did not understand the
The psychological evidence introduced at the suppression hearing and trial confirmed, in spades, that Preston has many significant deficits in mental functioning. The psychologists’ evaluations demonstrated that Preston has a “very impaired” ability to understand “everyday interpersonal exchanges as well as ... formаl legal” exchanges. “[A]ny English verbal material must be repeated, reinforced, and then revisited.” Without such repetition, “he may easily confuse the content of a conversation and give ... spurious responses” or be misled. Thus, “[h]is relatively poor verbal linguistic fluency is likely to result in misunderstanding of directions or translate into delayed, unconventional, or inappropriate responses in verbal settings.” Preston also finds “complexity ... confusing” and has trouble understanding abstract terms.15 He has difficulty following “simultaneous communication,” such as from two individuals speaking at once. Where there are two messages, Preston has trouble “sorting ... out” what they are saying “and deciding how to respond.” “[T]o set up the potential for him to understand something, you have to use rather simple, concrete terms.”16
During psychological testing, Preston expressed “distress of not knowing the answers to some questions or possibly consequent to difficulty understanding some of the questions he was asked.”17 Dr. DiBacco opined that Preston‘s intellectual impairment made him more susceptible to the interrogative pressure. He testified
(2) These traits—being “easily confused,” “highly suggestible and easy to manipulate“—are consistent with characteristics of the intellectually disabled in general. See Richard A. Leo, Police Interrogation and American Justice 232 (2008). Studies show that “subjects with IQs well below average, such as those who are borderline or mentally handicapped, tend to be markedly more suggestible.” Gisli H. Gudjonsson, The Psychology of Interrogations and Confessions: A Handbook 382 (2003). “Lack of intelligence may render” the intellectually disabled “unable to understand what is being said” in an interrogation. President‘s Panel on Mental Retardation, Report of the Task Force on Law 33 (1963). They are highly susceptible to leading, misleading, and erroneous information,” and it is very “easy to get them to agree with and repeat back false or misleading statements, even incriminating ones.” Leo, supra, at 232. “Research shows that witnesses with mental deficiencies are highly influenced by questions that contain leading and misleading information.” Saul M. Kassin & Gisli H. Gudjonsson, The Psychology of Confessions: A Review of the Literature and Issues, 5 Psychol. Sci. Pub. Int. 33, 53 (2004).
Summarizing the evidence regarding how the intellectually impaired respond to contemporary police interrogation methods, several scholars have listed “seven common characteristics” of such people, including (1) “unusual[] susceptib[ility] to the perceived wishes of authority figures“; (2) “a generalized desire to please“; (3) difficulty “discern[ing] when they are in an adversarial situation, especially with police officers,” who they generally are taught exist to provide help; (4) “incomplete or immature concepts of blameworthiness and culpability“; (5) “[d]eficits in attention or impulse control“; (6) “inaccurate views of their own capacities“; and (7) “a tendency not to identify themselves as disabled” and to “mask[] their limitations.” Morgan Cloud et al., Words Without Meaning: The Constitution, Confessions, and Mentally Retarded Suspects, 69 U. Chi. L.Rev. 495, 511-13 (2002). Thеse scholars pronounced it “now ... beyond reasonable dispute” that the ABA was correct in stating “that the increased vulnerability of a mentally disabled suspect, and his or her naiveté, ignorance, confusion, suggestibility, delusional beliefs, extraordinary susceptibility to pressure, and similar considerations may make it possible for law enforcement officers to induce an involuntary statement by using techniques that would be acceptable in cases involving mentally typical suspects.” Id. at 509 (internal quotation marks and citation omitted). As a result of these traits, “[m]entally disabled individuals ... are ... long known to be vulnerable to coercion.” Brandon L. Garrett, The Substance of False Confessions, 62 Stan. L.Rev. 1051, 1064 (2010). The Supreme Court has so recognized, noting that “mental condition is surely relevant to an individual‘s susceptibility to police coercion.” Connelly, 479 U.S. at 165.
B
We turn now to another consideration in our voluntariness analysis, the techniques the officers used when interrogating Preston.
As the Supreme Court pointed out in Miranda, most police officers have been
Among the police tactics used here were several recommended by a manual on police interrogation, see Fred E. Inbau, John E. Reid, Joseph P. Buckley & Brian C. Jayne, Criminal Interrogation and Confessions (5th ed. 2013) (“Reid manual“),19 from which both the officers who interrogated Preston were trained. The officers, however, sometimes disregarded the manual‘s cautions about the tactics they used.
For example, using one of the recommended approaches, the two officers asked Preston a number of questions that presented him with two alternatives as to how the crime was committed. See id. at 293-303. “Both alternatives are highly incriminating, but they are worded in such a way that one alternative acts as a face-saving device whilst the other implies some repulsive motivation.” Gudjonsson, supra, at 19. In this instance, Preston was asked to choose, for example, whether he was a monster—a sexual predatоr who repeated-
These questions were derived from similar exemplars in the Reid manual. Reid manual, supra, at 296-97, 298. The manual, however, suggests that the inculpatory alternatives technique recommended may be unduly coercive when used for suspects of seriously impaired mental ability: it trains agents in the alternative questioning method with the understanding that “no innocent suspect, with normal intelligence and mental capacity, would acknowledge committing a crime merely because the investigation contrasted a less desirable circumstance to a more desirable one and encouraged the suspect to accept it.” Reid manual, supra, at 303 (emphasis added). The psychological evidence regarding Preston‘s intellectual disabilities confirms this assessment by indicating that he is confused by complexity, abstraction, and multiplicity, and likely to acquiesce in suggestions made by the questioner. As a result, recognizing that where one is asked “a or b,” one can answer “neither one,” rather than acquiescing in one or the other, could well have exceeded his intellectual abilities.
A second questioning technique the officers used with Preston was repeated pressure to change answers inconsistent with guilt and adopt answers evidencing guilt instead. Repeatedly rejecting Preston‘s denials or equivocations, Kraus and Secatero asked him the same questions over and over until he finally assented and adopted the details that the officers posited.20 Such acquiescence and willingness to “shift” answers in response to intеrrogative pressure is common for the intellectually disabled, who, when presented with leading or suggestive questions, “frequently seek to conform to the perceived desires of the interrogator.” Stanley L. Brodsky & Allyson D. Bennett, Psychological Assessments of Confessions and Suggestibility in Mentally Retarded Suspects, 33 J. Psychiatry & L. 359, 363 (2005).21
Identifying a third technique that the officers used, Dr. DiBacco testified that “[t]here were a number of times” during the officers’ interrogation of Preston “that the desired response was embedded in the question.” The agents carried out this technique by asking Preston questions that contained details about the allegations already made. For example, when Kraus first asked if Preston used a condom—which Kraus knew had been alleged during the child‘s forensic interview—Preston responded that he did not know. Only after Kraus told Preston the correct answer—“Yeah, you did?“—did Preston adopt that
Particularly strong evidence of Preston‘s suggestibility is that he adopted answers that were demonstrably false.22 Most tellingly, the officers rejected Preston‘s repeated denials of being home on Friday, saying “you telling us ... you‘re not being here ... We just don‘t buy it,” “the fact is, we know you were here,” “there‘s no denying” it, and so “you have to remember what happened Friday.” Eventually, Preston stopped denying that he was home on Friday, instead acquiescing that “there‘s a bunch of little kids over here, and plus that other guy,” and that he “was inside just by myself”23—even though it is undisputed that Preston in fact was not at home on that day.24
That Preston attempted to tell the officers what they wantеd to hear is also clear from some of his other shifting responses. At first, when the officers asked if any of the children came inside his house on Friday, Preston denied it. As the officers repeatedly asked this question, communicating that his initial responses were not what they wanted, his answer shifted from “nobody came inside” to “[i]t‘s just like what you guys said, that guy came in.”
The agents coupled the techniques of alternative questioning, providing suggestive details, and repetitious and insistent
Kraus and Secatero ignored these admonitions. They told Preston that if he were not the “kind of guy that [abuses children] all the time,” but instead was the type of “guy that just” had “a bad day” and did it once, then he could simply “move on.” The message conveyed was that Preston would not be punished if he admitted to being a one-time child rapist—which was, of course, not true.
The officers misled Preston in other ways as well, telling him that his written confession was just an apology note to the child, that they would not tell anyone else what he said, and that the confession would never leave the “folder” or the United States Attorney‘s Office. At the same time, they told Preston that he was free to leave only after he finished answering their questiоns, and threatened that they would keep returning until Preston did so. In this way, the police paired the prospect of relentless questioning with false prom-
Assuredly, interrogating officers can make false representations concerning the crime or the investigation during questioning without always rendering an ensuing confession coerced. See, e.g., Frazier v. Cupp, 394 U.S. 731, 739, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969). But false promises stand on a different footing. In particular, the Supreme Court has observed that “the test of voluntariness” is “whether the confession was extracted by any sort of threats or violence, or obtained by any direct or implied promises, however slight, or by the exertion of any improper influence.” Hutto v. Ross, 429 U.S. 28, 30, 97 S.Ct. 202, 50 L.Ed.2d 194 (1976) (per curiam) (quoting Bram v. United States, 168 U.S. 532, 542-43, 18 S.Ct. 183, 42 L.Ed. 568 (1897)) (internal quotation marks and formatting omitted). In Henry v. Kernan, 197 F.3d 1021, 1027-28 (9th Cir.1999), for example, we concluded that detectives’ deceptive tactics overcame the defendant‘s will and rendered his statement involuntary when the detectives made deliberately misleading comments “intended to convey the impression that anything said by the defendant would not be used against him for any purposes.”
The types of deception used here, which primarily related to considerations extrinsic to the suspect‘s guilt or innocence, are
“Because of their cognitive deficits and limited social skills, the mentally retarded ... often lack the ability to appreciate the seriousness of a situation.” Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C. L.Rev. 891, 919-20 (2004). “Under interrogation, they are not likely to understand that the police detective who appears to be friendly is really their adversary or to comprehend the long-term consequences of making an incriminating statement.” Jon B. Gould & Richard A. Leo, One Hundred Years Later: Wrongful Convictions After a Century of Research, 100 J.Crim. L. & Criminology 825, 847 n.119 (2010). They fail “to understand the context in which interrogation occurs, the legal consequences embedded in the rules or the significance of confessing.” Cloud et al., supra, at 501. In particular, research shows that the intellectually disabled are “significantly more likely ... to believe the suspect will be allowed to go home after making a confession” to a serious crime. Gudjonsson, supra, at 326. So being told falsely that, after a confession, one could simply “move on,” or that the confession would be kept confidential, is likely to have a considerably greater impact on a person with serious intellectual impairments, such as Preston, than on an individual of normal intelligence.
IV
Analysis and Conclusion Regarding Voluntariness
Considered all together, the various factors here—Preston‘s severe intellectual impairment; the police‘s repetitive questioning and the threats that it would con-
Accordingly, we conclude that the district court erred in admitting Preston‘s confession.28
V
Sufficiency of the Evidence
As a final matter, Preston argues on appeal that the evidence was constitutionally insufficient to establish essential elements of the crime charged. Specifically, Preston contends that the government failed to introduce sufficient evidence to prove that he “engaged in sexual contact with the victim‘s buttocks or anus with [his] penis,” (alteration in original), or that he acted with “an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person,”
The Double Jeopardy Clause of the Fifth Amendment provides that no person shall “be subject for the same offence to be twice put in jeopardy.” “It has long been settled, however, that the Double Jeopardy Clause‘s general prohibition against successive prosecutions does not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside, through direct appeal or collateral attack, because of some error in the proceedings leading to conviction.” Lockhart v. Nelson, 488 U.S. 33, 38, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988). But the Supreme Court has recognized an exception to the government‘s right to retry a defendant without offending the Double Jeopardy Clause where the conviction is overturned for insufficient evidence. Burks v. United States, 437 U.S. 1, 11, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). This exception recognizes that the “Double Jeopardy Clause forbids a second trial fоr the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.” Id. at 11. As Preston did not “waive[]” his right to a judgment of acquittal by moving for a new trial,” id. at 17, we must address the sufficiency of the evidence question even though we are remanding for a new trial.
Finally, Preston‘s confession itself was sufficiently corroborated by independent evidence. See United States v. Norris, 428 F.3d 907, 914-15 (9th Cir.2005) (citing United States v. Lopez-Alvarez, 970 F.2d 583, 592 (9th Cir.1992)). Corroborating evidence need “not independently establish any element beyond a reasonable doubt.” United States v. Delgado, 545 F.3d 1195, 1206 (9th Cir.2008) (internal quotation marks and citation omitted). Here, the child‘s statements to his relatives and the forensic interviewer, his complaints of pain, and the DNA evidenсe together “support the essential facts admitted” by Preston “sufficiently to justify” an “inference of their truth” by the factfinder. United States v. Corona-Garcia, 210 F.3d 973, 978 (9th Cir.2000).
Thus, we conclude that sufficient evidence supported Preston‘s conviction at the first trial, and we remand for a new trial.29
REVERSED AND REMANDED.
GRABER, Circuit Judge, specially concurring:
Because I agree with the majority that we should reverse and remand this case for a new trial, I concur in the judgment.1 I also agree with the majority that, to decide the voluntariness of a confession resulting from a non-custodial police interview, we consider the totality of the circumstances in which the suspect makes the confession, including the relevant characteristics of the suspect. Doody v. Ryan, 649 F.3d 986, 1008 (9th Cir.2011) (en banc). But I view the totality of the circumstances differently than the majority. In particular, I think that the officers’ false promises about the nature of the interview, coupled with Preston‘s intellectual disability, coerced Preston into confessing, but most of the tactics employed by the officers were not coercive.
Many aspects of the interview were not coercive.
First, Preston was not in custody at the time of the interview. Two law enforcement officers, wearing plain clothes and arriving in unmarked cars, approached Preston outside his home. One was not armed, and the other did not display a weapon at any time. The entire conversation took place outside Preston‘s home; when asked whether he would prefer to talk privately in one of the officers’ cars, Preston said “no” and the interview continued at the same outdoor location. The officers told Preston that he was not under arrest, that he was free to stop answering their questions at any time, and that he was free to lеave at any time. (Because the discussion took place outdoors, Preston had only to walk through his own front door to terminate the interview.) The officers were not outsiders to the Navajo community; one was a tribal officer. Their tones of voice were soft, and they asked questions in a slow and low-key manner, with many pauses and silences in order to give Preston time to think and respond. The entire interview lasted only about 38 minutes.2
Second, apart from the false promises of leniency discussed below, the tactics used by the officers (and the instances of their mistakes) in this case are benign: Over the course of a casual 38-minute interview, the officers asked almost entirely open-ended questions and discussed highly charged topics in broad terms. The officers also, clearly by mistake, referred to the wrong day of the previous week during portions of the interview. In my view, the method of asking questions and the mistake were not coercive.
The officers asked Preston only a few either-or questions, and many were follow-up questions to clarify steps in the narrative that were necessarily binary—for example, an officer asked, “Did [the child] put the condom on or did [Preston]?” and “[W]as [the child] standing up or was [the child] sitting down?”3 Although either-or questions could be overly leading in certain
Notes
Contrary to the majority, maj. op. at 1024-25, I do not think that the district court erred—clearly or otherwise—in finding that Preston‘s admissions were not tied to a particular day of the week. Over the course of the interview, the discussion moved from questions about a particular weekday to questions about an event unmoored from any particular day. I would not find Preston‘s confession involuntary, even in part, by reason of such a slight misstep.
As the Supreme Court has recognized, there is “no talismanic definition of ‘voluntariness,’ mechanically applicable to the host of situations where the question has arisen.” Schneckloth v. Bustamonte, 412 U.S. 218, 224, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Rather, voluntariness is viewed as a spectrum: At оne end is “the acknowledged need for police questioning as a tool for the effective enforcement of criminal laws,” while at the other is “the set of values reflecting society‘s deeply felt belief that the criminal law cannot be used as an instrument of unfairness.” Id. at 225. But such a rule is also inherently ambiguous and, as the Court acknowledged in crafting the bright-line Miranda rule, the totality-of-the-circumstances test is challenging for law enforcement officers. Dickerson v. United States, 530 U.S. 428, 444, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000).
In order to respect the “acknowledged need for police questioning as a tool for the effective enforcement of criminal laws,” we must craft clear rules that do not place officers in constant fear of condemnation for deploying the mildest of tactics. In the course of investigating reported crimes, officers necessarily have to approach most suspects without any information regarding their intellectual capabilities and necessarily have to employ tactics similar to those that the officers used here. Those tactics may, in certain circumstances, coerce a highly sensitive suspect, but that determination must be made on a case-by-case basis by looking at the totality of the circumstances at hand. See Doody, 649 F.3d at 1008 (“The Supreme Court has observed that, ‘[t]he application of these principles involves close scrutiny of the facts of individual cases.‘” (alteration in original) (emphasis omitted) (quoting Gallegos v. Colorado, 370 U.S. 49, 52, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962))).
II.
Our disagreements aside, the majority and I reach the same conclusion: that Preston confessed involuntarily. But contrary to the majority, I do not think that we must сondemn every interview tactic that the officers used or embark on an exploration of empirical literature on intellectual disabilities. Rather, I think that this case is resolved squarely by our earlier precedent that prohibits false promises of confidence in exchange for confessions.
The Supreme Court has held that the test for voluntariness of a confession “is whether the confession was extracted by any sort of threats or violence, or obtained by any direct or implied promises, however slight, or by the exertion of any improper influence.” Hutto v. Ross, 429 U.S. 28, 30, 97 S.Ct. 202, 50 L.Ed.2d 194 (1976) (per curiam) (internal quotation marks and brackets omitted). Although we have held that general allusions to leniency are insufficient to render a confession involuntary, United States v. Coleman, 208 F.3d 786, 791 (9th Cir.2000); United States v. Leon Guerrero, 847 F.2d 1363, 1366 (9th Cir.1988), we also have held that statements by officers conveying that the interview is in complete confidence render any resulting confession coerced, Henry v. Kernan, 197 F.3d 1021, 1027 (9th Cir.1999).
The officers’ suggestions that any incriminating statement would be kept in the United States Attorney‘s file and that the purpose of the interview was to extract an apology are troubling. Indeed, those suggestions and that appeal to culturally appropriate closure, in my view, overbore Preston‘s will. As the record reveals, Preston remained incredibly reserved and circumscribed in the facts that he chose to share with the officers until after their promise of confidence. Immediately following the promise of confidence, Preston agreed with the officers’ version of the incident:
[Officer Greg]: I mean we‘re not going to make a judgment; are you—on you or—you know. We‘re just here. We do this dаy in and day out. We talk to people left and right, and we don‘t say anything about it.
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. So what happened Friday?
[Officer James]: So you were inside in there. Did the kids come inside then?
[Preston]: No, nobody came inside. It‘s just like what you guys said, that guy came in, but I didn‘t do nothing.
(Emphasis added.)
Also problematic is the fact that the officers perpetuated the misimpression that the interview was confidential by describing the form as a mere apology note to the child (who is Preston‘s second cousin and a member of a neighboring family that was feuding with his own) and by securing Preston‘s signature under that misimpression:
[Officer Greg]: Uh-huh. Do you feel sorry?
[Preston]: I guess.
[Officer Greg]: No. I mean, it‘s either yes or no, one—I mean, there‘s nothing in between.
[Preston]: Yeah.
[Officer Greg]: You‘re sorry? And, you know, if—do you have—you want to say anything to the kid?
[Preston]: Who?
[Officer Greg]: To [the child]?
[Preston]: No.
[Officer Greg]: No?
[Officer James]: Do you want to write any—usually what we do is we write a statement and like if you wanted to say you‘re sorry or something like that, you could—you could definitely do that, and we can provide that to him.
“Such misleading comments were intended to convey the impression that anything said by [Preston] would not be used against him for any purposes.” Henry, 197 F.3d at 1027-28. Those comments, coupled with Preston‘s intellectual disability, his youth, and the particular cultural and jurisdictional4 context in which the
For these reasons, I conclude that the district court erred in admitting Preston‘s confession at trial. I therefore concur in the judgment reversing the conviction and remanding for a new trial.
GOULD, Circuit Judge, concurring in the judgment:
I concur in the judgment reached by the majority that the confession given by Preston was involuntary under the totality of the circumstances. For me, the case does not need elaborate analysis: The United States Supreme Court has said that involuntary confessions are not admissible, and that we consider the totality of the circumstances in assessing voluntariness. See Dickerson v. United States, 530 U.S. 428, 434, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000). Preston‘s confession was involuntary primarily because of the confluence of three factors: Preston‘s intellectual disability, the strongly inculpatory nature of the officers’ either-or questioning, and the officers’ false promises that what Preston said would be kept private. Together, these factors were sufficient to overbear the will of Preston and make his confession involuntary.
First and foremost, Preston had extremely limited mental capacity. He was led to agree with strong, affirmative statements made by authority figures, with less consideration and without the independent will that could be exercised by a person of average or superior intelligence. I do not think every person of below average intelligence necessarily gets a pass from being subjected to such interrogation tactics, but there are limits and here the IQ of Preston is at a level where his intellectual disability is part of the total circumstances pertinent to voluntariness. Second, we should recognize a grave danger that a person with such limited mental capacity would view critical either-or questions as defining the universe of what was possible. Such either-or and leading questions suggesting culpability normally are permissible in policе interrogations, but here we can see how they affected the voluntariness of Preston‘s confession. Third, the officers told Preston that they would not tell anyone what Preston said, and described Preston‘s confession as an apology letter to the alleged victim. These severely misleading statements, at least where addressed to a person of such limited intelligence, could be expected to overbear the will of the suspect. Weighed together, these factors lead to an involuntary confession when considered in total circumstances.
description of a one-time offender with an implication that such a person would not be prosecuted. I will discuss this issue below. Second, the 15 either-or questions that the officers asked after Preston began to volunteer information regarding the incident were either open-ended or were necessarily binary. The majority speculates that answering “neither one” to such questions “could well have exceeded [Preston‘s] intellectual abilities.” Maj. op. at 1024. The record does not support the majority‘s speculations. For example, in response to at least three of those either-or questions, and arguably more, Preston responded in the negative to both options offered him, or answered that he did not know.