United States v. Preston, No. 11-10511 (9th Cir. 2013)
Annotate this CaseDefendant appealed his conviction for abusive sexual contact in violation of 18 U.S.C. 1153 and 244, and contested the portion of his sentence imposing a lifetime term of supervised release and several conditions of his supervised release. The court concluded that defendant's confession was properly admitted; defendant validly waived his rights to a jury trial and an indictment, and the district court did not plainly err by accepting defendant's counsel's waiver of his right to confrontation; the court rejected defendant's contention that the trial court abused its discretion in admitting expert testimony about the DNA evidence used to implicate him; the court held that the district court properly admitted the testimony of the grandmother and uncle under the excited utterance exception to the general hearsay exclusion; the testimony of the officer was not properly admitted at trial but its admission was harmless error; and the court rejected defendant's argument that prosecutorial misconduct materially affected the fairness of the trial and that the trial court relied on insufficient evidence. The court remanded for the district court to reconsider the plethysmograph testing requirement, to clarify the condition that defendant "shall not possess, view, or otherwise, use any other material that is sexually stimulating, sexually oriented, or deemed to be inappropriate by the probation officer and/or treatment provider," to adjust his probation requirements so that they were definite and certain, and to provide adequate explanation for defendant's conditions of supervised release. The court affirmed in part and remanded for resentencing.
Court Description: Criminal Law. The panel affirmed a conviction for abusive sexual contact and remanded for resentencing in a case in which the district court imposed a lifetime term of supervised release and several conditions of supervised release. The panel held that the defendant’s confession was properly admitted. The panel wrote that the defendant’s diminished mental capacity alone is not enough to render his confession involuntary, and that the length, location, and continuity of the interview do not support a conclusion of involuntariness. The panel held that the defendant validly waived his rights to a jury trial and an indictment, and the district court did not plainly err by accepting the defendant’s counsel’s waiver of his right to confrontation. The panel rejected the defendant’s contention that the district court abused its discretion in admitting expert testimony about the DNA evidence used to implicate him. The panel held that the district court properly admitted the testimony of the victim’s grandmother and uncle under the excited utterance exception to the general hearsay exclusion. The panel held that the improper admission of an investigating officer’s hearsay testimony was cumulative to admissible testimony and therefore harmless. The panel rejected the defendant’s argument that prosecutorial misconduct materially affected the fairness of the trial. Reviewing for plain error, the panel rejected the defendant’s sufficiency-of-the-evidence challenge to the conviction. The panel held that the district court’s imposition of a lifetime term of supervised release was procedurally sound. Regarding substantive reasonableness, the panel could not, on this record, hold that the district court abused its discretion, but suggested that the district court, in its own discretion, consider the prosecutor’s recommendation of an alternative sentence, whereby the defendant, who is in his early twenties, may satisfy some requirements to have the term shortened. The panel directed the district court on remand to reconsider a supervised release condition requiring plethysmograph testing as to which the district court failed to make the requisite specific findings. The panel directed the district court to clarify a condition that the defendant “shall not possess, view, or otherwise use any other material that is sexually stimulating, sexually oriented, or deemed to be inappropriate by the probation officer and/or treatment provider.” The panel requested that the district court include a mens rea requirement in a condition prohibiting the defendant from being “in the company of . . . children under the age of 18 without prior approval of [his] probation officer.” The panel also instructed the district court to explain adequately its reasons for imposing this condition, or to narrow it appropriately, given that the condition infringes on a significant liberty interest by prohibiting the defendant from associating, without the permission of his probation officer, with any children of his own he may have in the future. Judge Noonan dissented because the only evidence against the defendant is a coerced confession. He also wrote that he would ban the plethysmograph procedure altogether.
The court issued a subsequent related opinion or order on February 27, 2013.
The court issued a subsequent related opinion or order on August 14, 2013.
The court issued a subsequent related opinion or order on May 12, 2014.
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