*1 Thus, Sсalia’s state- established. we hold the state argues that Justice Smith enjoyed of a to, in Part III the assent “contrary ment or an court’s decision was not because, including majority of the Court of, application clearly unreasonable estab- [Jjustices dissenters, “fully seven Supreme lished Federal law.” The Court enhancing alle- recognized Sattazahn squarely not has addressed issue determining gations must be considered jurists disagree fairminded could as to the separate what ‘offense’under constitutes principle. judgment constitutional Although Jeopardy the Double Clause.” AFFIRMED. the district court is dissenting jus- to count the Smith asks us tices, rely justices upon did not those in Part III of Justice presented
rationale dissent, Moreover, the opinion.
Scalia’s Scalia, acknowledged spe-
like Justice capital sentencing.
cial context of Id. J., (Ginsburg,
126 n.
senting) Court has however, purposes that for of the Double America, UNITED STATES Clause, Jeopardy capital sentencing pro- Plaintiff-Appellee, ceedings involving proof of one or more aggravating factors are to be treated as Tymond PRESTON, separate offenses,
trials of not mere sen- J. Defendant- tencing proceedings. per- Our decisions Appellant.
mitting resentencing appeal after of non- No. 11-10511. capital convictions thus do address the ease.”(citations question presented in this Appeals, United States Cоurt of omitted)). Even we could add the dis- Ninth Circuit. plurality, sent to the the Court has not Argued and Submitted Nov. 2012. dearly principle established the Smith ar- gues capital for outside of the context of Filed Feb. 2013. sentencing. As Amended Feb. 2013. clearly We hold that Sattazahn did not sentencing establish whether enhance- an
ments must be considered as element of
an purposes offense for of the Double Thus,
Jeopardy Clause. is also Sattazahn
insufficient entitle Smith to federal ha-
beas relief.
IV. CONCLUSION Cobb,
Apprendi and Sattazahn— individually
whether togeth considered “clearly
er—did not create established requiring
Federal law” a state court to sentencing
consider enhancements as an purposes
element of an offense for Jeopardy
Double Clause. A state court expected required— cannot be less —much clearly
to refer to federal law which is not
Contact. Preston was convicted after a bench trial.
I. At some evening time on Wednes- 23, 2009, day, September TD an eight- year-old boy, Tymond entered Swisher, Phoenix, AZ, home; Professor Keith eighteen. Preston was TD and Defendant-Appellant. for the relatives, Preston were neighbors and though their families were in a involved Morrissey, Michael T. Assistant United happened feud. What inside Preston’s Arizona; Attorney States for the District of house, as well as the exact time of the Scheel, Ann Birmingham Acting United event, disputed. are According to the Attorney Arizona; States for the District of prosecution, placed a condom on Delord, Karla Hotis Acting Deputy Appel- penis and inserted it into TD’s anus for Arizona; late Chief for the District of *5 several seconds before TD ran out the Bade, Bridget S. Assistant United States began door and to cry. The defense ex- Phoenix, AZ, Attorney, Appellee. for the presses doubt that this assault ocсurred. While the investigating agents believed place the assault took around 6:30 p.m., argues the defense that it occurred earlier, all, if relying at in part on a clerical by error hospital made nurse who wrote FARRIS, Before: JEROME JOHN T. “16:30” on reports one of her really but NOONAN, BYBEE, and JAY S. Circuit “18:30”; meant to write she simply con- Judges. military fused the time conversion. Opinion by FARRIS; Judge by Dissent exiting tears, After Preston’s house in Judge NOONAN. joined TD his two young cousins. The boys three entered TD’s house at around OPINION p.m., 8:00 all crying visibly and upset.
FARRIS, Judge: Senior Circuit grandmother TD’s him why asked he was Tymond appeals upset Preston and he replied his conviction that his “butt” hurt for Abusive Sexual Contact in because put violation of Preston had penis his in his §§ 18 U.S.C. “butt.” grandfather and and TD’s contests called the police the portion incident, of his to report sentence imposing police and the ad- supervised lifetime term of him release vised to take TD hospital. and to the On several way conditions of his supervised hospital, re- to the TD refused to sit lease. “because his butt was hurting.” At the hospital, an officer arranged for TD’s fami- After a minor’s allegations of sexual as- ly to take him to the Safe Child Center at sault and an investigation, Preston was the Flagstaff Medical Center the following Aggravated indicted for Sexual Abuse. day. agreed later to dismiss
the indictment and filed an information TD met with a forensic interviewer at charging Preston with Center, Abusive Sexual the Safe gave Child who TD an juvenile 1. This case involves a identity victim protected. whose has been agents view. The informed hap- had Preston communicate what opportunity was under and free to repeated his statement he not arrest was to him. TD pened my appeared calm penis throughout in butt leave. Preston put that “[Preston] pressed for more and it hurts.” When interview seemed understand and long details, agents’ questions. Although interviewer a al- TD told the involving multiple as- story leged place Wednesday, took on convoluted assault by including statements September re- agents variously saults Preston — ejaculated onto shirt that Preston had ferred to the date of the incident as mouth, 23rd, of which was evidenced neither Friday, or or if he both. When asked , police subsequent TD’s at on Friday, replied home examination — trucks, chases, helicopters, monster that he was not home and “was around apparently fabricated events. Nota- other was, fact, downtown.” Preston included TD’s account of bly, story Friday. agents home that used such sister, sexually assaulting TD’s telling people tactiсs as “six butt,” “[t]rying to fuck her specifically TD at place over there” could throwing account of his own use of TD’s incident, day telling home on Preston and “robbers”— knives attack other as about evidence such “forensic of which is corroborated additional none exams interviews” could be [and] According the forensic inter- evidence. used, asking him if this a “one- viewer, commonly children use diversion- little thing” “prey[ed] time avoid ary techniques providing details having kids.” Preston still denied done *6 assault, and these tech- about their sexual to TD. also claimed that anything Preston their victimiza- niques projecting include “Friday” he could not remember because person describing and tion onto another memory from he suffered “short-term aggression against their attackers. acts loss,” I telling agents, go the “sometimes claimed, crazy.” just I Preston “It’s like Center, a at the Child nurse While Safe head, my have with a tu- problems like a “head-to-toe” practitioner conducted him, mor.” of the asked “You agents One of TD. TD told the medical examination responded, have a tumor?” and Preston put my nurse that his dick “[Preston] was agent “Yeah.” An then asked if he butt,” put that Preston on a “dick wear- to disabled, agent asked the and Preston nurse took to mean a ing,” which the сon- agent explain “disabled” means. The what dom, “got and the condom white stuff that he meant explained what disabled— away.” threw it The on it. [Preston] Preston “not able to take whether was body TD had no surface nurse noted that job Preston get care of’ himself or a pain injuries, when she ex- complained —and from replied that he had been removed anus, genital had his and a “normal amined not al- his and was school for behavior exam,” though the nurse noted and anal lowed back. does not confirm nor that a “normal exam negate possibility the abuse.” questioning their The continued agents kept denying and the accusations. Preston agents began investigation an and Two the “to Preston chance agent One offered to house to interview him. drove it [agents’] and talk about sit vehicle Preston They approached outside his de- away everybody.” Preston from home, they told him that there to were that They again reminded Preston assault, clined. allegations of sexual discuss and free to he not under arrest was forty-minute, tape- him in a engaged and that seemed They leave. told Preston he familiar people Other recorded interview. if he a and that “pretty good like dude” nearby during the inter- to Preston were They аgents should also At sorry, point, felt he confess. told [them].” Preston, any- to told “We don’t tell this that incident alleged realized had not folder, stays body. stays It with the and Friday erroneously occurred on Attorney’s with and that’s Office U.S. changed day summary in their admitted that TD came into it.” Preston Thursday, but that correctly stated it was day, that his but still insisted he house that September. agents The 23rd wrote nothing” suggested “didn’t do summary They a events. down him. Fi- trying someone to “frame” Preston his repeat asked account and nally, again agents informed what confirm hap- included Preston could investigation” “previous their revealed and left which pened out that Preston happen,” they did “[s]omething and when They he could remember. claimed condom, asked if he he nodded his used “not explained they going put were said, in, head it. “That’s Just came anything that want [he didn’t] [them] just happened.” and it then agents in,” and that put “going were to have questions asked series of about Preston sign gave then They it to [him] [it].” many questions, the event. To of these to read told him over and that he pants like his And pulled “He down? then “change anything could [he] want[ed].” say?” just unzipped what did he and “You signed Preston then the statement without your zipper?” respond, Preston would “I changes agents making and the left with- don’t claim know” and that hе could not placing out him under arrest. agents remember the events. The asked many questions, example, leading for “did charged by was initially indict- pull pants he down or he what did do?” Aggravated Abuse, with ment Sexual put “did he condom on or did mandatory prison which minimum sen- you?” agents Preston, asked “Did thirty-years. Negotiations tence is be- you just put your put your in all penis — Preston, attorney, tween gov- way just a little which bit?” to ernment led to an agreement responded, “Just little bit.” He admitted jury waive his rights would trial and *7 “five, put penis that he in his TD’s anus to an indictment if the would six ... then out ... seconds went [TD] charge reduce his lesser to the offense of said, you, I’m to tell on going and then he Contact, Sexual which Abusive carries no just fucking crying.” started He also sentence, prison maximum and would rec- ejaculate. claimed that he did not When ommend he receive no more than a it, why asked did he Preston claimed that fifteen-year sentence. Preston and his at- it, he did “urge” not have sexual to do signed torney and filed a waiver of indict- and that TD was the one who came onto trial, ment jury and waiver of both of him; “always say- he claimed TD was which stated that Preston had been ad- my ... ing says suck dick ... and he to rights agreed vised of to waive kids, all these other too.” open Additionally, them in court. the dis- agents then asked if Preston he was trict in colloquy open court conducted a sorry for what had done to TD. When court to determine whether Preston under- was, him, he said that he agents the told the rights stood that he waived. The “[U]sually what we do is we a state- write with judge, assurances from Preston’s at- you if say you’re ment and like wanted to torney, concluded that Preston understood that, sorry something you or like could ... rights. that, definitely provide do and we can agents judge three-day to The district conducted a him.” The asked “just could summarize what trial [Preston] bench and at its conclusion found uncle under the utter- charge. The court mother and excited of the guilty confession, general hearsay DNA evi- exception ance the ex- relied Preston’s and an testimony from TD’s underwear of dence taken clusion. The Officer Butler DNA, TD’s analysis trial, the expert witness’s but properly admitted at its not and the grandmother, to his statements reject was harmless error. We admission TD’s forensic interviewer testimony of argument prosecutorial mis- medical ex- who conducted his the nurse fairness of materially conduct affected the trial, at the testify TD did not amination. argues the trial. Preston also the were ad- though his recorded statements trial relied on insuffiсient evidence. court by stipulation. mitted reject the certain argument. We Since supervised release fifty- conditions of Preston’s The court sentenced Preston a lifetime term of court for imprisonment, months’ must be remanded to district and, alia, release, reconsideration, supervised inter not rule on we do that: conditions question supervision. of the duration (1) in participate “You shall attend (2) “You testing,” shall
plethysmograph
III.
view,
use
or otherwise
possess,
We review de novo whether
con
stimulat-
sexually
other material that is
voluntary
fession
and for clear error
oriented,
sexually
or deemed
ing,
findings
court’s factual
under
district
probation
officer
inappropriate by
lying
determination of voluntariness.
its
‘You
provider,”
treatment
and/or
Gamez,
v.
United States
company
shall not be
have
(9th Cir.2002).
age
contact with children under
prior
proba-
approval
18 without
“Involuntary or coerced confessions
tion officer.”
their
are inadmissible at trial because
ad
right
mission
of a defendant’s
is violation
II.
Horell,
Brown
process.”
due
v.
in challeng-
Preston raises several issues
(9th Cir.2011).
“[CJourts
ing his conviction and sentence.
totality
look
of circumstances to
argues
first
that his confession was invol- determine whether a confession was volun
untary
thus
improperly
admitted
Williams,
tary.”
507 U.S.
Withrow
totality
examining
trial. After
1745,
We hold that the district court a finding to the grand- necessary predicate testimony TD’s admitted 1114 ” Preston, ‘voluntary.’ though not once again is Colorado v. stated the
confession 167, 515, 157, 479 107 Connelly, U.S. S.Ct. This did wrong day. appear mistake not (1986). 473 “Coercive police Preston, 93 L.Ed.2d to deny confuse who сontinued to ‘physical be the either activity can result of having Friday been home on but eventual- ” pressure.’ or psychological intimidation ly acknowledged to which the incident Brown, (quoting F.3d at 979 644 Townsend agents referring. It be illogi- were would 307, Sain, v. U.S. S.Ct. 9 cal expect agents’ to Preston to correct the (1963)). Here, agents L.Ed.2d 770 did of an asserted date event he claimed never physically not threaten Preston nor use occurred, by began the time he to any improper techniques ap- interview confess, differentiating between Wednes- Brown, ply “psychological pressure.” See day Friday and a would not have been at at 979. interview lasted thoughts. of his forefront forty-minutes, place about took outside of agents proceeded with their residence, nearby, others were by using interview such telling tactics as multiple Preston told was times that he Preston that other could impli evidence under not arrest and was free to him, making though cate it leave, seem as con physically Preston not re- strained, fessing consequences could minimize the agents did not arrest crime, Preston at the conclusion of the asking suggestive interview. agents’ Preston’s assertion that the questions. tactics, however, offer None of these inside their sрeak “subtly vehicle threat- rises to a constitutional violation. The unfounded; physical ened his freedom” is agents did not use ploys,” “false evidence agents offered opportunity this to al- by implied agents as Preston. The refer away low to “talk about from place enced witnesses that TD could at everybody,” Preston declined the of- incident, day Preston’s home fer, agents and the reminded Preston im- Preston, implicating interviews and foren mediately thereafter that he was not under sic examinations could be conducted arrest. to determine what had occurred. There people place were several who could TD at There is no doubt that the agents incident, Preston’s home on the day of the try continued to obtain confession agents had reports of the incident from after he denied the incident interviews, from other forensic ex However, accusing with TD. a suspect of conducted, TD amination of could be as it lying automatically not “does render later coercive, was. Even this questioning an evidence was mis interrogator as leading, can is legitimately express enough to amount disbelief story Galaza, defendant’s order elicit further coercion. See Pollard v. 290 F.3d explanatiоns.” Cir.2002) comments United States (“[MJisrepresen (9th Cir.1987). Wolf, tations made law enforcement in obtain statement, ing a while reprehensible, does Nor agents is there doubt *9 necessarily not constitute coercive con during confused the dates the course of duct.”). Similarly, agents’ the statements However, the interview. this was not a to Preston that stay his confession could Preston, ploy to confuse was a genuine but between and them the United States At part mistake on the of the investigating torney, they that agents; agents possibly get and could properly the referred to confessed, help the as for him he having incident occurred on were not Sep- eventually improper. Agents may tember 23 and tried to rectify use such tactics to during the mistake their interview with induce a confession. See United States v.
1115 1987)) omitted). (9th (internal Cir.2000) 786, quotation marks Coleman, 791 208 F.3d capacity “tell the mental that could Preston’s diminished does (Agents’ promise suspect] little or no give heavily totality so of prosecutor [the not influence cir- involuntariness). not establish time” did a of finding cumstances test that involun- ques- suggestive of Finally, agents’ use appropriate. tariness is It reason- is not improper. tions was not 65, IQ has an of which means perpe- person suspectеd a of expect able that mild he suffers from mental retarda provide trating willingly crime to a serious 304, v. Virginia, tion. Atkins 536 U.S. 309 of criminal action. See a narrative his (2002) 3, 122 2242, 153 n. L.Ed.2d 335 S.Ct. (9th Doody Ryan, 649 F.3d 1021 v. (“ typically mental is ‘Mild’ retardation Cir.2011) (“We acknowledge recognize IQ people used to describe with an level of use, are entitled to police that officers 70.”). approximately 50-55 Preston ar use, variety techniques of to interro- do a gues should have known agents that City Cunningham v. gate suspects.”); of precaution and taken he was disabled Wenatchee, Cir. 810 and, ary their “at step's during interview 2003) question (finding “continuing least, given warnings.” Miranda he suspect suspect claims is after the a valid presents argument not coercion and innocent does constitute truth,” agents had idea he necessary should have some often to achieve is issues, questions may have “unset- from though suffered mental but could suspect, “mere emotionalism and agents exactly tled” the not have been clear to the confessions”). not confusion do invalidate what issues those were. Preston informed by suggestions denial of some that a “tumor” caused “short- agents agents acceptance of others his memory loss,” and had term that he been that his was not overborne suggests will high from his school due to his removed pro- also agents’ strategy. Preston of behavior and not allowed back. Neither additional facts that agents vided the with give these comments would the officers ques- suggested by leading their were not reason to believe that Preston could not tions; regard- example, his statements comprehend questions their or would be placed in TD’s ing long penis how influence. Addi susceptible improper TD’s reaction thereafter. anus and Preston’s contention tionally, Further, tactics to obtain a confes- used agents provided him with Mi should have only weighed to be when sion are factor warnings required parent or randa totality of circum- examining the present legally are baseless. attorney to Brown, F.3d at 979. The stances. 644 custody no was not in and makes location, the in- length, continuity of was. v. argument that he Withrow support terview conclusion do Williams, 680, 693-94, 113 S.Ct. U.S. involuntariness. (taking into 123 L.Ed.2d analysis process due consideration its finding Preston contends that a police “failure of to ad voluntariness the in light is “irrefutable involuntariness to remain rights vise the defendant of characteristics,” specifically his dimin [his] during present silent and to have counsel capacity. “personal ished mental interrogation.” (emphasis add custodial defendant are consti characteristics (“[N]o Derrick, ed)); F.2d at case of coer tutionally proof irrelevant absent juvenile’s that a relative be Peterson, requires] cion,” Derrick *10 confession.”) Cir.1991) (9th prior More present to States (quoting 818 United (8th over, 142, juvenile. a Rohrbach, Preston was not 813 144 v. F.2d Cir. 1116 view,
Finally, finding required the bar for that a defen- more is show Pres- dant in due mental part involuntary. was coerced to his ton’s confession was impairment insignificant ap- is not IV.
pears
largely
length
to turn
on the
See,
interrogation.
e.g.,
Con-
Culombe v.
We
review de novo
district
568,
necticut,
620-26,
367 U.S.
81 S.Ct.
acceptance
court’s
of a defendant’s waiver
1860,
(noting
L.Ed.2d 1037
rights
jury
his
a
an
trial and
indict
incapacity
mental
relevant factor in
was
Christensen,
ment. United States v.
holding
determining that
the defendant —a
822,
(9th Cir.1994);
see
United
with
intelligence
“mental defective ...
an
Ferguson,
v.
States
758 F.2d
850-51
sixty-four”
police
quotient of
effective
—in
(2d Cir.1985). “If the defendant failed to
custody
days,
four
nights
for
five
re-
object to the admission of evidence under
let
fusing
speak
the defendant
with
Clause,
the Confrontation
Court] re
[this
anybody other than his co-defendant and
plain
error.”
viewfs]
United States v.
wife,
repeatedly questioning
the defen-
(9th
Cir.2006).
Hagege, 437 F.3d
culminating
dant
in a four-and-a-half hour
confessed,
questioning after which he
A. Waiver of Indictment
coercive);
Ryan,
Doody v.
649 F.3d
A defendant must knowingly, intelligent-
(9th Cir.2011) (focusing
on time as an
ly,
voluntarily
right
waive
to an
important
concluding
factor
that a
indictment.
Ferguson, 758 F.2d
850-51.
investigation
mentally
of a
im-
twelve-hour
7(b)
Federal Rule of Criminal Procedure
coercive);
paired suspect was
Com. N.
right
allows defendant to waive his
to an
Mendiola,
Mariana Islands v.
charged by
indictment and be
information
(9th Cir.1992)
(determining
485-86
right
if the defendant
“in open
waives the
interrogation
cognitively
that the
of a
im-
being
court and after
of the
advised
nature
paired
“[p]o-
defendant
coercive
when
charge
rights.”
and of
[his]
Fed.
repeatedly
lice
informed Mendiola that he
7(b).
P.
R.Crim.
charged
would
released within twen-
hours,
ty-four
they interrogated him on
complied
Preston’s waiver
with
7(b).
affording
numerous occasions without
him Rule
right
Preston waived his
friends, family,
the comfort of
employer, or
open court
judge
after
district
ascer
they
attorney,
repeatedly accused him of
understanding
tained Preston’s
of the con
lying,
sign
instructed him to
sequences,
lawyer
and Preston’s
confirmed
understand”),
statements
could
that Preston understood the waiver. The
grounds by George
overruled
other
explained to
judge
Preston the difference
Camacho,
Cir.1997).
knowingly, intelligently, and Waiver to right his an indictment. waived may accused “[T]he waive right and ... the to confrontation Jury Trial B. Waiver of may right accomplished waiver of this be competent A “must be defendant by the a matter of accused’s counsel as jury right, to and the waiver waive the Gray, trial strategy.” tactics or Wilson voluntary, knowing, in and must fact be (9th Cir.1965). trial, At Christensen, F.3d at 824. intelligent.” attorney and his agreed Preston admit 23(a) Procedure Rule of Criminal Federal having TD’s recorded statement in lieu their allows criminal defendants waive testify person, argues TD in and he right jury to a constitutional trial stipulation right violated his to con writing is made in and has the waiver frontation. It is clear that the trial coun government of the and approval stipulation sel’s was a matter of trial strat 23(a). court. Fed.R.Crim.P. This Court egy. attorney opted admit in where has also held that “cases statements he was recorded because is a defendant’s mental or emotional state with the contained content information issue,” the court must substantial district and therein concerned “children colloquy “an which rea in-depth conduct say anything go ... can in stand and sonably the court that under the assures any direction.” The district court did not case, signed particular facts of the plainly by accepting err this waiver and knowingly, voluntarily, waiver was and in admitting See TD’s recorded statements. made.” Id. at 825-26. This telligently at Hagege, 437 F.3d 956. “(1) telling must include defendant: community com twelve members of y. (2) may
pose jury; the defendant take (3) selection; jury jury in part verdicts expert testimo- argues unanimous; the court must ny analyst at trial did not DNA guilt or if the de alone decides innocence requirements of Rule 702 meet jury waives trial.” Id. 825. fendant unfairly as have been excluded should complied with Federal Evi- Federal Rule of prejudicial under 23(a) by waiv Rule of Criminal Procedure dence 403. writing ing right jury trial DNA that the Preston’s assertion approval with under evidence should have been excluded judge an in- the court. conducted largely argument on his depends Rule with depth colloquy which he discussed ar unreliable. His that the evidence was each of the four aforementioned inapplicable Rule 403 is each, gument fails. points, explain had Preston Co., v. Farmer Bros. thеm bench trials. EEOC made sure that Preston understood *12 1118 (9th Cir.1994); 891, try 898 Schultz v. level to and eliminate or exclude some-
Butcher, (4th Cir.1994). 24 632 exactly expert F.3d one.” This is what the did. other arguments attack the ana- Evidence 702 states that Federal Rule of (1) lyst running for “irrelevant statistical product expert testimony must be “the of hypotheses,” though even tests to the methods, principles reliable and ... which not part he refers were of the ana- expert reliably applied have] the the [must lyst’s by not report were relied on the of principles and methods to the facts the court, using inappropri- district for 702. review case.” Fed.R.Evid. We the statistics, population though ate even Pres- expert district court’s decision to admit agreed ton’s that expert these statistics for of opinion testimony abuse discretion. were in an proper analysis. use Redlightning, 624 United States v. (9th Cir.2010). 1090, 1110 Whether dis- incorrectly asserts that the dis- trict court its discretion abused involves a trict “erroneously court DNA used the “First, two-step inquiry. Id. we determine population Specifically, statistics.” Pres- de novo whether the district court identi- ton that claims the district court misinter- legal apply fied the correct rule to to the preted DNA the evidence when stated If requested. the court relief district did that of general Navajo popula- “99.8% the rule, identify legal not the correct it is an tion can possible be excluded as contribu- Second, of discretion. abuse we determine tors of analyst such DNA.” The testified application the district court’s percent Navajo “99.8 contributors” legal illogical, correct standard was im- a “population randomly taken from se- plausible, support or without in inferences lected unrelated individuals” could be may be drawn from the facts in the eliminated as contributors to the DNA (internal omitted). record.” Id. citations found in TD’s underwear. Preston claims that “the 99.8% suggests only statistic properly applied The district court selected, percentage randomly un- 702 Rule to determine whether admit Navajo related un- Native Americans is testimony analyst. the the DNA likely to have the profile exact same DNA judge trial “gatekeeper” fulfilled his role presence as Mr. Preston —the or absence pursuant to Daubert and allowed the ex only yield alleles five loci a sig- would pert’s testimony on the based foundation Preston, nificantly percentage.” lower the by prosecutor laid that established the however, misinterpreted has analyst’s reliability relevance and of the tеstimony statistics; analyst eliminated 99.8% of and the scientific method which Navajo population analy- based on an analyzed; subject DNA was DNA sample sis of the taken from TD’s under- procedure ed analysis. common wear not an analysis based on of Pres- Pharm., Inc., See Daubert v. Merrell Dow DNA, ton’s provides no basis 509 U.S. S.Ct. L.Ed.2d test, for his claim that another (1993). which he objection Preston made no describe, yield fails to “would a significant- expert’s testimony at trial and has ly lower percentage.” The district court meaningful failed articulate reason did not abuse its discretion in admitting analysis that her is not reliable. For ex expert’s It argues testimony. applied the cor- ample, Preston the “analyst rule, rect Rule and did quality apply went below her lab’s threshold.” However, way rule in a expert explicitly “illogical, implausi- stated that ble, may support while test conducted have fallen without in inferences that threshold,” “reporting may below lab’s drawn from the facts in the rec- analysts are go “allowed to below that ord.” Redlightning, F.3d at 1110. *13 make argu Preston does a
VI. valid testimony ment that the of Officer Butler a district court’s We review hearsay as improperly was admitted and for an abuse of dis of evidence admission the violation of Confrontation Clause. only if it more and will is cretion reverse However, testimony Butler’s Officer than the evi improper not that probable testimony TD, cumulative to the of TD’s the materially affected verdict. dence uncle, grandmother and and TD’s forensic 944, 951, Dorsey, v. 677 F.3d United States light In of the evidence interviewer. other (9th Cir.2012). Confrontation Alleged 954 available, the admission of Officer Butler’s de and violations are reviewed novo Clause testimony was harmless error. See Unit subject analysis. error are harmless Gonzalez, 1015, 1057, ed States Berry, States v. 683 F.3d v. 533 F.3d United (9th (9th Cir.2008) (admission Cir.2012). hearsay 1020 1061-62 of story harm recounting rape victim’s objects district to the court’s less error where victim also that testified TD’s testimony grand- of from admission her). the raped defendant had recounting what TD told mother and uncle the the assault. He also night them on of VII. Butler, challenges testimony the of Officer incident, object If fails to to acts investigated recounting defense counsel who the trial, grandparents alleged TD and told of at prosecutorial what misconduct the about assault. plain we error. review for United States (9th Cir.2010). Wright, v. 625 F.3d 610 court did not district reversal, To must es- obtain defendant admitting its discretion the state abuse tablish and Id. prejudice. both misconduct grandmother TD’s re ments of uncle the is Regarding prejudice, question counting night whаt TD told them the that probable whether it is more than not ex of the assault. The excited utterance materially the the fair- misconduct affected allows to admit “state ception a court ness the trial. Id. 613. startling relating ment to a event or condi tion, made while the declarant was under arguments makes several the stress of excitement caused.” the improperly argued: the evidence was 803(2). Although Fed.R.Evid. prosecutor vouched for the tes- improperly the the timing pre claims that events timony analyst; prosecu- the DNA testimony, cludes admission of the there is abuse; pros- argued tor chronic sexual no conclusive evidence to establish when “incendiary injected ecutor considerations” occurred, alleged evi assault case; prosecutor suggest- into the TD ran from dence shows that evi- ed defense counsel manufactured home house tears to his own where silence, dence, on Preston’s commented to his reported incident relatives while mother a liar. These called Preston’s crying visibly upset. The district still arguments lack merit. not It did court did abuse its discretion. “Vouching placing consists “clearly make a that was decision of the behind prestige logic facts.” against and effect thrоugh personal witness assurances Univ., Oregon v. Rabkin Health Sciences in veracity, suggesting or witness’s Cir.2003). F.3d These 977 jury sup presented formation not did statements not violate Confronta testimony.” United ports the witness’s tion Clause. Excited utterances are non- Arave, Weatherspoon, v. States testimonial. Leavitt (internal (9th Cir.2005) (9th Cir.2004). omit citation ted). prosecu Preston is correct that the VIII. analyst
tor stated that the DNA had “no Preston contends that the trial court had anything motive to do than other to tell insufficient evidence to conclude that he However, the truth.” this falls short of sexually had the intent TD abuse vouching. prosecutor did not make actually the abuse occurred. We any personal veracity assurances of nor must view the “in light evidence most *14 did he make reference to information not favorable prosecution” to the and examine presented judge. to the See Weather “any whether rational trier of fact could spoon, (finding 410 have found the essential F.3d 1146 that a elements of the beyond crime a reasonable doubt.” Jack- prosecutor improperly vouched for a wit 307, 319, Virginia, son v. 443 U.S. 99 S.Ct. prosecutor beyond ness where the went his 2781, 61 (emphasis L.Ed.2d 560 in statement that the witness had no reason Atkinson, original); United States v. 990 “clearly urged lie and that the existence (9th Cir.1993) (en banc). F.2d 503 legal professional repercussions credibility served to ensure the of the offi government had the burden testimony”). cers’ prove beyond a reasonable doubt that abuse, Preston had the “intent to humili argues prosecutor that the im- ate, harass, degrade, gratify or arouse or properly referenced chronic sexual abuse any the sexual desire of person.” that was “not in evidence” and “unneces- 2246(3). § U.S.C. “[C]ircumstantial evi sary However, charge.” to the TD stated dence alone can be sufficient to demon during his forensic interview strate a guilt.” defendant’s United States times, him multiple assaulted in- and the Barajas, v. Cordova formation analysis was relevant to an (9th Cir.2004). argument this interview. there was insufficient prove evidence to requisite had the depends largely intent unnecessary It is to address Pres Preston’s own statement that he did not arguments. ton’s other Even if miscon “urge” have sexual at the time of the occurred, duct Preston has not shown that evidence, however, assault. Other shows probable it is more than not that it affect that Preston assaulted TD gratify his ed the fairness of the trial. This was a desire, sexual including testimony TD’s bench trial in judge which the was the that he pornography viewed with Preston trier of fact. The risk of improperly influ ejaculated and that Preston after the as encing judge by placing prestige that, sault. Preston fails to show when against favor of or a viewing the light evidence most swaying witness or the judge with improp favorable to prosecution, a rational tri er evidence is far less than in jury trial. er of fact could not have found the neces States, See Dedmore v. sary beyond United intent a reasonable doubt. Cir.1963) (“[I]t is to be pre argues Preston also that the evidence is sumed, absent a showing contrary, to the not sufficient to prove any sexual the District Judge only considered contact occurred. Preston asserts that the material competent evidence in arriv district court made finding its based on a ing at findings guilt.”). Preston has confession, coerced an unreliable state- failed to show misconduct or that al TD, ment from and unreliable DNA evi- leged misconduct affected the fairness of dence. Preston has prove failed to the trial. regarding assertions reliability 3553(a). 3553(a) that the evidence, § has cast Section states and even if Preston piece must consider: ability individual court on the doubt most favorable he has taken on not convince the assault of evidencе 99 S.Ct. failed to show that a whole and viewed occurred. to establish 2781. a rational trier of fact to the Jackson, 443 U.S. at prosecution, guilt conclusively, in the evidence, could light tics of the defendant the seriousness of the impose mote “the nature greater offense respect and the than a sentence necessary for history circumstances of law, sufficient, offense, ... and to [1] characteris- [and] to reflect but provide shall pro- vised reviewed States the district court Cir.2008). release is v. Daniels, for We must part of the sentence and is length reasonableness. 541 IX. committed consider of a term of F.3d 915, (1) significant 921 whether United super (9th just further afford effective conduct; ... provide correctional treatment punishment adequate crimes of manner.” [3] the defendant with needed protect deterrence 18 U.S.C. defendant; offense; in the most *15 public to criminal § 3553(a). and [4] [2] from explicit The court reference (2) district made error, and the sen then procedural 3553(a) factors to section and took these Id. tence’s substantive reasonableness. during sentencing. into account Preston adequately ex the district court Whether “greater argues sentence was a a sentence is its reasons for plained Cherer, necеssary” age, than because his mental issue, v. United States procedural (9th and lack record 1150, Cir.2008), impairments, prior 1159 re F.3d 513 novo, necessitate sentence. The v. Ham should lesser de United States viewed (9th Cir.2009). facts, 1100, mons, court accounted these and Pres- F.3d 558 1103 argument is not to show procedur court’s is ton’s sufficient If the district sentence sound, abused we will the substantive that the court its discretion. ally review an sentence for reasonableness However, prosecution recommended v. Res of discretion. United States abuse term of release supervised a lifetime be- Cir.2012). sam, 1069, 679 F.3d dysfunc- “the extent of [Preston’s] cause court’s of a life- imposition The district not clear at time of the trial. tion” was supervised proce- time term of release “if some reasoned that prosecutor [at] The sup- durally sound. The record does it that he has later time becomes clear the court port Preston’s assertion rehabilitated ... he can have been justify no reasons to a life sentence.” “gave shortened supervised term of release many including its gave court reasons The lengthen time can Honor at no Your but factors, the na- sentencing review supervised you don’t term of release offense, charac- and Preston’s ture of today of lifetime yourself avail of the term Carty, United teristics. See States cannot, on this supervised release.” We (9th Cir.2008) (“A within- record, that the court abused its dis- hold ordinarily needs little sentence Guidelines cretion, young but we note that Preston is explanation.”). very long sen- possibly this can that the dis- suggest is therefore argues also that the sentence tence. We discretion, court, unreasonable, own consider asserting that trict its substantively an al- prosecutor’s account the recommendation court failed to take into sentence, may whereby sentencing provided by factors 18 U.S.C. ternative satisfy requirements enough to have the to assume that some the district court term shortened. testing would have ordered the had it con- inquiry. ducted the government has
X.
pursue
resolved not to
this condition and
object
Preston failed to
to the conditions
argument
government recog-
at oral
of his supervised release. We therefore
nized and
If
acknowledged
problem.
plain
review his claims for
error. United
upon remand the court
impose
elects to
Blinkinsop,
States v.
606 F.3d
1118 plethysmograph
testing,
comply
must
(9th Cir.2010).
(1)
“Plain error is
an error
justifying
imposition.
with Weber in
its
(2)
(3)
plain,
is
affects substantial
argues
also
that the con
rights,
seriously
affects the fair-
dition of
forbidding
his release
his use of
ness, integrity
public reputation
judi-
“sexually oriented” or “inappropriate” ma
proceedings.”
cial
at 1114 n. 2.
Id.
vague,
terials is
such that “men of common
provide
The district court
must
intelligence
necessarily guess
must
at its
imposing any
defendant with notice before
meaning and
application.”
differ to its
supervised
condition of
release not contem
Soltero,
United States v.
510 F.3d
plated by the Sentencing Guidelines.
(9th Cir.2007).
argues
Cope,
United States v.
953 that
*16
“sexually
the definitions for
oriented”
(9th Cir.2008). Preston is incorrect in ar
and “inappropriate” materials can be found
guing that
provide
the court failed to
no
in
prior
condition’s reference to 18
imposition
tice of its
of plethysmograph
2256(2).
§
However,
U.S.C.
the contested
testing,
prohibition
its
of his
of
use
sexual
provision
that
states
Preston shall not use
materials,
ly explicit
prohibition
its
of
“any other material”—this is meant to ex
being
in the company of children.
pand on the
prior
materials from the
con
explicitly
Each is
in
presen
mentioned
2256(2)
§
dition and thus its use of
is
tencing report
that Preston’s counsel re
inapplicable. These
clearly
terms are not
sentencing
ceived before
and this is suffi
defined, leaving
guess
Prestоn “to
about
provide
cient to
notice. See United States
the intended meaning of the terms of his
(9th
Lopez,
v.
258 F.3d
1055
Cir.
supervised release.” United States v.
2001) (notice
departure
of
from sentencing
Sales,
(9th
Cir.2007).
476 F.3d
737
guidelines can be
presentence
found
admits,
must,
it
as
report).
portion
of the condition prohibiting
argues
Preston also
that the court
Preston’s use of materials “deemed to be
did not provide “on-the-record reasons for
inappropriate by
probation
officer”
imposing” plethysmograph testing. The
should
impose
be excised. To
this condi
district court failed to
specific
make
find
tion, the
clarify
district court must
what
ings
regard
testing.
with
to this
gov
material Preston is forbidden to use.
admits,
must,
ernment
as it
that this was
Finally,
argues
that the condi-
require specific
error. We
findings
factual
tion prohibiting him from
“in
being
ordering
testing
before
this
because indi
company
of
children under
age
of
a “particularly significant
viduals have
lib
prior
18 without
approval
probation
of [his]
erty
being
interest in
plethysmo
free from
officer”
sufficiently
is not
definite. Com-
graph
Weber,
testing.” United States v.
noun,
pany, as a
Cir.2006).
quality
is defined as “the
568
Given
being
companion
or state of
significance of
or associate
this interest and the
Dictionary
(3d
Weber court’s
of
“thоrough
mandate of a
in
another.” Webster’s
quiry”
1976).
before it can
abrogated,
it is not
ed.
This Court has concluded that
deterrence,
“association,”
goals
protection
in simi-
of
when used
to the
the term
conditions,
release
is
supervised
lar
or
at 1101—
public,
rehabilitation.” Id.
do
incidental contacts
vague because mere
court
02. The
focused
the facts
Soltero, 510
not constitute “association.”
impediment
the condition was an
to Wolf
Freeman,
Arciniega
(citing
at 866
ability to act as a
fa-
“responsible
Child’s
4, 4,
22,
that there no basis for the [was] -that Preston came to the child’s house condition,” imposition part of that previ- had threatened to kill him the was, therefore, and the condition substan- day; ous unreasonable, tively facts exist in the rec- 911; -that the child called may ord of this case that justify impo- -that Preston tried to stab the child with sition of this condition. See at id. 1096. It knife; necessary is on remand for the district -that the child locked explain adequately court to its reasons for key; child’s bedroom awith imposing in light this condition of Wolf -that Preston climbed out of the window or, cannot, if it Child to narrow the condi- off; and onto the roof jumped appropriately. tion hiding -that the child was under a blan- him; so ket Preston could not see
XI. -that Preston followed the child’s tracks We REMAND for the district court to hole; and fell into a water reconsider the plethysmograph testing re- -that Preston then drove a monster quirement, clarify the condition that truck aoff cliff and the police followed view, possess, Preston “shall not or other- cars; helicopters with wise use other material that is sexual- -that the child threw knives Preston’s ly oriented, stimulating, sexually heart; inappropriate by deemed proba- -that Preston tried to raрe the child’s tion officer treatment provider,” to and/or sister, but that he did not because kit- adjust probation requirements so that him; tens scratched certain, are definite and pro- and to -that the ran adequate explanation vide child outside and killed robber and almost killed supervised conditions of Preston. release. In farrago of fantasy, no fact identifies part, AFFIRMED in REMANDED for *18 worthy itself as of belief. resentencing. child, examining After the forensic
NOONAN, Judge, Circuit dissenting: examiner concluded: only The against evidence the defendant [He] described events that unsup- are is a coerced confession. I up will take ported by subsequent forensic exam- elements government’s of the case turn. ination of the victim and his clothing. example, For the victim indicated that I. The Child’s Account during the course of the assault Preston A temptation exists to ejaculated mouth, refer to the in his on lips, on story “testimony.” shirt, child’s as govern- The his red and on his stomach. The 69) ment in (e.g. p. its brief major- and the forensic examination of the victim and 1120) ity opinion in its (e.g. Maj. Op. at the clothing wearing he was neverthe- yield temptation. to this But the child’s less revealed neither any evidence of story not testimony. story is The was not semen any nor the existence of red shirt. told oath. story under The was not sub- For that physical matter the examina- ject to only cross-examination. It was an tion of the victim signs showed no unsworn and untested tale. trauma or semen. exists no Coerced Confession of The Men- undisputed that there V.The
It is tally Retarded The Youth sexual contact. physical evidence examiner, key government wit- forensic not be Preston’s “confession” should ness, no trauma. found no semen and involuntary. at all considered because it is Kraus and Agent Investigator Secatero DNA Evidence II. Inconclusive porch Preston on the front questioned argue that government does not The his house. Secatero told Preston con- exists DNA evidence of sexual there two first types people.” “there’s the child and Preston. tact between “monster,” predator,” was a a “sexual type “type prey type This little kids.” Enough Alone Not III. Confession Is a “cold-hearted for whom person” was sympathy.” “don’t show sec- on a A cannot be convicted defendant type, explained, ond Kraus and Secatero alone. In United v. Nor confession States not a monster but a that had a “guy (9th Cir.2005), ris, 907, 915 428 F.3d day” thing.” who did a time This bad “one that the must “intro circuit found state on,” type could second “move because sufficiеnt evidence to establish duce transpired “just what a misunder- of the conduct at the core the criminal standing.” Secatero told Preston that the Norris, occurred.” 428 F.3d offense has officers “which kind of wanted know Lopez-Al (citing 914-15 United States Preston, he was. person” He asked Cir.1992)). varez, person you Are you? “Which are the de Accordingly, this circuit reversed you prey Pres- type where on little kids?” mo Norris’s conviction for sexual fendant he was not. ton said pro the “government because lestation no evidence corroborate Norris’s duced giving Preston criminal alter- After two act, that the Norris’s natives, confession core proceeded Secatero Kraus penis, touching of T.V.’s vulva with questions ask Preston series of actually Id. occurred.” damaging forced to choose between admissions: Here, no produced has you to have -“Is it because wanted [...] to corroborate Preston’s confes- evidence onto or is he the one that came [... ] sex “core of act”—sexual sion that you?” “actually Id. occurred.” contact— something you forced the -“Is it where is it he wanted?” something issue or Satisfy Failure of Confession to IV. away you pull out?” pull -“Did he or did Statute *19 your penis just go [or] -“Did all of if we werе to the confes- Even consider little bit?” alone, circuit, violating sion the law of this you just do it a or that one -“Did lot satisfy the Preston’s confession fails to time?” prove The must be- statute. case, less dam-
yond
was
In each
Preston chose the
a reasonable doubt that Preston
times,
the loaded
“knowingly
in abusive
admission. At
guilty
engaging]
aging
abuse,
were more akin to statements.
questions
contact” with the “intent to
sexual
these,
silent,
humiliate, harass,
he didn’t
degrade, or arouse or To
Preston was
said
know,
Kraus
Agent
or denied the claims.
gratify
person.”
the sexual desire of
instance,
2244, 2245(3).
said,
pants
pulled
§§
con-
for
“He
Preston’s
18 U.S.C.
'
know.
Preston
he didn’t
shows no such intent.
down?”
said
fession
said,
officers,
you pull your pants
purposes,
Kraus
“Did
down the
culled to their
said,
said,
too?” Preston
“No.” Kraus
by
written
they
their hand. The details
just
your zipper?”
“You
unzipped
Preston
selected
were details
had fed him.
said, “He pulled
was silent. Kraus
revise, correct,
Not once did Preston
pants up
you zipped up,
and I
too.”
assume
counter the
dictation
officers’
of the state-
Nearly every
Preston was silent.
detail
said,
instance,
Agent
ment.
Kraus
planted by
was
officers.
just unzipped your zipper?”
“You
Preston
said,
pulled your
was silent. Kraus
“You
questions
Loaded
are difficult for intelli
out,
penis
gent persons.
mind, they
you put
a condom
For
feeble
are
on?”
nearly impossible.
eighteen
Preston was silent. Each
is
of these details
year
and has a brain “like a five
old.” He was transferred into the written state-
IQ
IQ
has an
of 65.
places
Preston,
ment. Kraus asked
you
“Do
range
in the
of mental retardation. Atkins
put you’re sorry
want me to
you
Are
[...]?
5,
Virginia,
318, 122
536 U.S.
309 n.
sorry
sorry?”
or not
Preston chose the
(2002).
S.Ct.
fessions, Mentally Suspects, Retarded describe Preston’s choice between bad al- L. U.CHI. REV. 511-13 ternatives, denials, actual and ambiguous (finding mentally people retarded do product silence as “a of a rational intellect not understand their limitations and “feel will,” and a free a necessary condition for compelled to a question, answer even if the an admissible confession. Blackburn v. question ability exceeds [their] to an Alabama, 199, 208, 361 U.S. 80 S.Ct. swer”). (1960). L.Ed.2d No one can seriously argue that majority asserts coercion of a paper signed by Preston comprehend- was mentally impaired person “appears to turn ed grave Preston as a document of legal largely on length of the interrogation.” import. Kraus told Preston that the paper This reading is unsubstantiated. Nowhere merely way say “sorry” to [the does case law Length state such a rule. you “Do want any usually child]: to write — factor; an interrogation is one mental defi- If, what we do is we write a statement. ciency is another. A interrogation short like, you say sorry wanted to or something does not reduce the relevance of the defen- like that. You definitely could do that. capacity. dant’s mental provide And we can that to him.” Pres- response hardly ton’s just assent: “I’ll majority notes that interroga- say did, I’m sorry for what I they’re but tion occurred at Preston’s house with oth- just trying to accuse me of that shit. But present. ers distinctly Yet Preston was mean, fuck—I not like that.” Ignoring vulnerable at his house. Both officers had *20 equivocation, Preston’s Kraus assured vehicles, arrived in unmarked and both Preston that “just the statement was plain were dressed in clothes. Preston summary.” kind of prior had no record and spoken had nеver
The “summary” police to undoubtedly confession— before. The officers —Preston’s was a brief gathering of details selected checked his record and knew he lacked ignorance of mental retar- widespread of- law enforcement. The with experience dation, police Pres- “make it difficult for and quickly that neither learned ficers interpret responses Pres- to properly nor father was home. others ton’s mother Eugene R. eighteen years mentally persons.” old. of retarded ton himself Milhizer, children. present Connelly: were two An only others Confessions After Preston, rapidly Excluding the officers Questioning Evidentiary Solution Unre- capacity, questionable mental Confessions, surmised liable 81 TEMP. L. REV. (2008). disabled. point-blank result, he was asking police detectives As was vul- porch, on his By himself by pressuring can “create false confessions nerable. accept particular account suspect to him, thereby suggesting and crime facts to Unreliability of Confessions From VI. contaminating narrative.” John B. [his] People Mentally Retarded Leo, A. Gould & Richard One Hundred peo- mentally from retarded Wrongful Confessions Years Later: Convictions After Research, ple prone are to be false. Century 100 J.Crim. L. & (2010). 825, 849 Criminology is unreliablе. Pres- Preston’s confession to a ready sign a confession ton was mentally from retarded sus- Confessions and did so. wrong crime with the date youth, “per are se un- pects, particular Preston, at least officers told police White, trustworthy.” See Welsh False times, home on jfifteen that he had been and the Constitution: Safe- Confessions crime; the officers Friday to commit Against Untrustworthy guards Confes- say meant later admitted (1997), 105. sions Harv. C.R.-C.L.Rev. Wednesday. Although reg- Preston had a 200 DNA study In a recent of the first Fridays leaving ular routine on U.S., in the of the false exonerations 35% aunt, suggesti- he was so house to see his younger years confessors were 18 officers that he agreed that he with the ble disability. a developmental had and/or Friday. home on had been al., M. Kassin et Police-Induced Con- Saul the textbook case of a statement meets Risk Factors and Recommenda- fessions: given a false false confession: Preston was tions, 19-22 34 Law & Behav. Hum. crime, accepted it as detail of the (2010). that 69% of study Another found (“One cheeking an fact. method for actual mental dis- persons the exonerated with confession, authenticity voluntary of a wrongly were convicted because abilities of a or one that seems result L. also Brandon false сonfessions. Id. See illness, some ficti- mental is to introduce Garrett, False The Substance Confes- test whether aspects tious of the crime and sions, 1051, 1064 62 Stan. L.Rev. accept them actual facts suspect will as juve- (“Mentally disabled individuals F. relating to the occurrence.” Inbau, J. long known to be groups niles are both Reid, Buckly, Jane, B. Inter- J. & Criminal suggestion.”); vulnerable coercion (5th ed. rogations Confessions, developmen- (noting that “the Gould 2011)). juve- disabled, impaired, tally cognitively unusually to be niles—all of whom tend the officers dictated the statement
As more compliant” suggestible either sign, Preston was for Preston —are at 14 likely falsely); Milhizer to confess unintelligible sounds. The silent or made (“Certain among common characteristics unartic- transpired truth what remained par- make them mentally persons retarded have by him. As researchers ulated falsely. For ex- ticularly prone to confess found, “tendency people] retarded [of are of- suspects disabilities,” ample, mentally retarded combined with to mask their *21 in by strong please my desire to the reasons stated concurrence ten motivated Weber, requires if to do so authority figures, procedure even I would ban this alto- they to a crime them to lie and confess did gether. Psychiatric researchers have re- lack They not commit. also often the abil- See, my approval. ferred to criticism with ity police the nature of to understand Scott, e.g., Michael Harlow and Charles questioning.”). Plethysmography Testing “Penile for Con- Jour, Offenders,” victed Sex majority recognizing writes Acad, Psych, (2007). Amer. and of Preston and his Law cognitive impairment susceptibility “signifi- to coercion would
cantly jurisprudence. broaden” this court’s majori- than the capacious
The law is more Atkins,
ty Supreme admits. In Court that, “cognitive due to and be-
determined impairments,” including
havioral “the di- ability process
minished to understand and information, experience, to learn from Marco Antonio CORREA- engage logical reasoning,” mentally re- RIVERA, Petitioner, people categorically tarded are at risk of v. Atkins, producing false confessions. 320, Indeed, Jr., Attorney Eric H. HOLDER
U.S. at
S.Ct. 2242.
General,
mentally
Respondent.
Court noted the exonerations of
people
“unwittingly
retarded
who had
con-
No. 08-72258.
fessed to crimes
did not commit.” Id.
Connecticut,
See also Culombe v.
367 U.S.
Appeals,
United States Court of
568, 620,
1860,
81 S.Ct.
extracted from a “thirty-three-year-old 6, mental Filed Feb. intelligence defective with an 2013. quotient sixty-four”); Commonwealth of
the Northern Mariana v. Islands Mendio-
la,
(9th Cir.1993)
confession on the basis that
“consideration of defendant’s reduced ca-
pacity is critical because it rendered susceptible
more to subtle forms of coer-
cion,” citing intelligence the low Pate,
defendants in Reck v. 367 U.S.
81 S.Ct.
Payne 356 U.S. (1958)). 844, 2
78 S.Ct. L.Ed.2d 975 majority thoughtfully asked the dis-
trict court to reconsider approv- its order
ing the plethysmograph, majority but the not ban it. I already expressed
does have
in a concurring opinion critique of this Weber,
procedure. See United States v. Cir.2006). 570-71 For