United States v. Tymond Preston

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA , No. 11-10511 Plaintiff-Appellee, D.C. No. v. 3:10-cr-08026-

GMS-

TYMOND J. PRESTON ,

Defendant-Appellant. OPINION

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

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

Filed February 5, 2013

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

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

SUMMARY*

Criminal Law

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

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

The…

dissenting:

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

I. The Child’s Account

A temptation exists to refer to the child’s story as “testimony.” The government in its brief (e.g. p. 69) and the majority in its opinion (e.g. Maj. Op. at 1120) yield to this temptation. But the child’s story is not testimony. The story was not told under oath. The story was not subject to cross-examination. It was only an unsworn and untested tale.

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

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

After examining the child, the forensic examiner concluded:

*1125 It is undisputed that there exists no physical evidence of sexual contact. The forensic examiner, a key government witness, found no semen and no trauma.

II. Inconclusive DNA Evidence

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

III. Confession Alone Is Not Enough

A defendant cannot be convicted on a confession alone. In United States v. Norris, 428 F.3d 907, 915 (9th…

Opinion by Judge FARRIS; Dissent by Judge NOONAN.

OPINION

Tymond Preston appeals his conviction for Abusive Sexual Contact in violation of 18 U.S.C. §§ 1153 and 2244, and contests the portion of his sentence imposing a lifetime term of supervised release and several conditions of his supervised release.

After a minor’s allegations of sexual assault and an investigation, Preston was indicted for Aggravated Sexual Abuse. The government later agreed to dismiss the indictment and filed an information charging Preston with Abusive Sexual Contact. Preston was convicted after a bench trial.

I.

At some time in the evening on Wednesday, September 23, 2009, TD 1 , an eight-year-old boy, entered Tymond Preston’s home; Preston was eighteen. TD and Preston were neighbors and relatives, though their families were involved in a feud. What happened inside Preston’s house, as well as the exact time of the event, are disputed. According to the prosecution, Preston placed a condom on his penis and inserted it into TD’s anus for several seconds before TD ran out the door and began to cry. The defense expresses doubt that this assault occurred. While the investigating agents believed that the…