                   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-1

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 En Banc
     December 10, 2013—San Francisco, California

                    Filed May 12, 2014

    Before: Alex Kozinski, Chief Judge, and Stephen
 Reinhardt, John T. Noonan, Sidney R. Thomas, Susan P.
Graber, Kim McLane Wardlaw, Ronald M. Gould, Richard
 A. Paez, Marsha S. Berzon, Morgan Christen and Paul J.
                Watford, Circuit Judges.

              Opinion by Judge Berzon;
             Concurrence by Judge Graber;
             Concurrence by Judge Gould
2                  UNITED STATES V. PRESTON

                           SUMMARY*


                          Criminal Law

    Reversing a conviction and remanding for a new trial,
the en banc court held that under the totality of the
circumstances, including the eighteen-year-old defendant’s
intellectual disability, the confession that resulted from police
questioning was involuntarily given and should not have been
admitted at trial.

    The en banc court explained that it cannot resolve the case
by labeling the questioning either inherently coercive or not,
but must instead evaluate the law enforcement tactics used in
conjunction with the defendant’s serious intellectual
disability. The en banc court also explained that the
voluntariness inquiry focuses not on the truth or falsity of the
confession, but on the coercive nature of the interrogation,
taking into account the particular circumstances of the
suspect.

    The en banc court held that to the extent Derrick v.
Peterson, 924 F.2d 813 (9th Cir. 1991), held that the issue of
police coercion during an interrogation must be considered
without regard to the suspect’s individual characteristics, it
cannot be reconciled with prior opinions of this court or with
binding Supreme Court precedent. The en banc court held
that Derrick is no longer good law, and overruled it as well as
subsequent opinions that have relied on it.


  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                 UNITED STATES V. PRESTON                      3

    The en banc court concluded that the defendant’s will was
overborne and his statement involuntary, considering various
factors: the defendant’s severe intellectual impairment, the
police’s repetitive questioning and the threats that it would
continue without end, the pressure placed on the defendant to
adopt certain responses, the use of alternative questions that
assumed his culpability, the officers’ multiple deceptions
about how the statement would be used, the suggestive
questioning that provided details of the alleged crime, and the
false promises of leniency and confidentiality.

    The en banc court wrote that even if it would reach a
different conclusion regarding someone of normal
intelligence, the officers’ use of the methods employed here
to confuse and compel a confession from the intellectually
disabled eighteen-year-old produced an involuntary
confession.

    The en banc court held that sufficient evidence supported
the defendant’s conviction, at the first trial, of abusive sexual
contact, and that the Double Jeopardy Clause therefore does
not forbid a new trial.

    Specially concurring, Judge Graber wrote that the
officers’ false promises about the nature of the interview,
coupled with the defendant’s intellectual disability, coerced
the defendant into confessing, but most of the tactics
employed by the officers were not coercive.

    Concurring in the judgment, Judge Gould wrote that the
case does not need elaborate analysis. He wrote that the
confession was involuntary primarily because of the
confluence of the defendant’s intellectual disability, the
strongly inculpatory nature of the officers’ either-or
4               UNITED STATES V. PRESTON

questioning, and the officers’ false promises that what the
defendant said would be kept private.


                        COUNSEL

Professor Keith Swisher (argued), Phoenix, Arizona, for
Defendant-Appellant.

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, Arizona, 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.
                    UNITED STATES V. PRESTON                              5

                                     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
(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 Preston 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


  1
    Disability advocates now use the term “intellectual disability” rather
than “mental retardation.” Congress has adopted the term “intellectual
disability” for use in federal statutes. See Rosa’s Law, Pub. L. No. 111-
256, 124 Stat. 2643 (Oct. 5, 2010). We therefore use the term “intellectual
disability,” except where the earlier locution “mental retardation” is used
in the cited authority.
      2
     The Supreme Court is currently reviewing the constitutionality of
Florida’s scheme for identifying individuals with intellectual disabilities
in capital cases, which mandates that a person must have an IQ below
seventy to be classified as intellectually disabled. See Hall v. Florida,
134 S. Ct. 471 (2013).
      3
     Preston underwent two psychological evaluations. First, he was
examined for his competency to stand trial by Dr. Daniel C. Cady, who
provided a report, admitted as an exhibit at trial. The defense retained Dr.
6                  UNITED STATES V. PRESTON

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 family of relatives, including his
paternal aunt, resided next door. The neighboring households
had a long-standing feud. As recounted by its participants,
the feud took some unusual turns. For example, Preston told
investigators that the neighbors had used “witchcraft” to
paralyze his father for three months.

    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


John DiBacco, who examined Preston and testified regarding his
confession. Dr. DiBacco has a Ph.D. in psychology from Vanderbilt
University, is an adjunct professor of clinical psychology at Arizona State
University, and is the senior consultant to Maricopa County’s Child
Protective Services department.
                 UNITED STATES V. PRESTON                       7

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.
8                 UNITED STATES V. PRESTON

    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 refers 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 anal exam. No red shirt was found. Skin cells were
found on the child’s underwear4 with DNA from multiple
contributors, including at least one male and potentially a
female; Preston, the child’s grandmother and at least one
more relative could not be excluded as the source of some of
the DNA.5

B. The Confession

    About a week after the boy reported that he had been
assaulted, Federal Bureau of Investigation (“FBI”) Special


    4
    One swab was used to collect a sample from various parts of the
child’s underwear, including from the outside waistband. So the DNA
found may have come from the outside waistband of the underwear.
    5
    The DNA of Preston’s brother, mother, and father, all of whom also
live next door to the child and presumably have similar DNA profiles to
Preston, was never compared to the DNA collected from the underwear.
                  UNITED STATES V. PRESTON                          9

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


 6
  One of the forensic psychologists who examined Preston observed that
he has difficulties with abstract terms. The examining psychologist
observed, “I would suspect that he’d have a tough time defining
molestation, forensics.” Both terms were used in the interrogation.
10                 UNITED STATES V. PRESTON

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

    Aside from the “Friday” colloquies with Preston, the
officers spent much of the interrogation engaged in an
extended dialogue about types of sexual offenders. Secatero
told Preston that “there’s two type[s] of people,” and that he
was “just trying to figure out which . . . one” Preston was.
The first type, the officers explained, was “predators, sexual
predators,” who “prey on little kids” and are “coldhearted.”
This type of person is “the monster that . . . everybody’s
scared of,” who is “molesting all these little kids,” and to
whom “we don’t show any sympathy.” The second type, they
went on, was not a monster but just did a “one-time thing,”
maybe because he was “curious” or “drunk.” The officers
repeatedly told Preston that they “want[ed] to know what


 7
   Toward the end of the encounter, the officers realized that the alleged
incident had not occurred on Friday, and changed the day in the
confession they wrote to Thursday — still incorrect.
                    UNITED STATES V. PRESTON                            11

kind of person” he was, the “kind of guy that does it all the
time or the guy that just” had a “bad day.” Secatero and
Kraus minimized the culpability of the second type of person,
stating that these individuals could “move on” and be given
help, because what transpired was “just a misunderstanding”
— but only if these individuals were truthful. Kraus assured
Preston that “if nothing happened, that’s cool,” but also “if
something just a little bit happened, . . . that’s cool, too.”
Kraus later acknowledged that the officers meant to convey
that admitting guilt could minimize the consequences Preston
faced, and that Preston could get some sympathy if he was a
one-time offender rather than a serial predator.

    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]fter 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



    8
        The officers testified that, before they began recording the
conversation, Kraus told Preston that he was free to leave or stop talking
at any time. But Kraus also testified that, when he told Preston, “After the
12                UNITED STATES V. PRESTON

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,
when the officers said, “Friday. . . . Six days ago. Do you
remember [the child] being over here?” Preston at first
responded, “No,” but then switched gears, stating, “[T]here’s
a bunch of little kids over here, and plus that other guy, but
. . . I don’t know what happened that day.” The officers
continued, “so Friday, I know you remember you were here
. . . you said that there were kids over here, and then what?
Did you guys go inside or what?” Preston responded, “I was
inside just by myself.”




interview, you’re free to go,” he was merely restating what he had told
Preston before the interview.
                UNITED STATES V. PRESTON                    13

    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
14                 UNITED STATES V. PRESTON

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,


 9
   At the suppression motion hearing, Secatero represented that Preston
wrote out the statement, although Kraus “dictated it for the defendant.”
At trial, Kraus acknowledged that he penned the statement.
                   UNITED STATES V. PRESTON                          15

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
statement, he reiterated, “you pulled your penis out, and you
put a condom on?,” to which Preston nodded assent. The
detail that Preston wore a condom was then included in the
written statement.10

    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 have 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 18 U.S.C.
§ 2241(c), for which the mandatory minimum prison sentence
is thirty years. He moved to suppress the use of his

  10
     No condom was introduced at trial; the investigators had not looked
for one.
16              UNITED STATES V. PRESTON

confession. After a hearing, the district court denied the
motion.

     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 (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
                    UNITED STATES V. PRESTON                             17

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 (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
(2000) (quoting Schneckloth v. Bustamonte, 412 U.S. 218,
226 (1973)) (internal quotation marks omitted) (emphasis
added).



  11
      In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court,
recognizing “that the coercion inherent in custodial interrogation blurs the
line between voluntary and involuntary statements,” and presents too great
a risk that any resulting statement is compelled, required that suspects be
given certain advisements of their rights prior to custodial interrogation as
a condition precedent to the admissibility of any statement into evidence.
Dickerson v. United States, 530 U.S. 428, 435 (2000). But “[t]he
requirement that Miranda warnings be given does not, of course, dispense
with the voluntariness inquiry” for suspects in custody. Id. at 444.
Concomitantly, the voluntariness standard applies to suspects not in
custody. See, e.g., Beckwith v. United States, 425 U.S. 341, 348 (1976).

     Preston does not argue that he was in custody during the
interrogation. We proceed on the premise that he was not.
18              UNITED STATES V. PRESTON

     “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 (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 (1985) (quoting Ashcraft v. Tennessee, 322
U.S. 143, 154 (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 (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 (1953),
overruled in part on other grounds by Jackson v. Denno,
378 U.S. 368 (1964)) (alteration in original).

                               B

    These principles have particular application where, as
here, the individual 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 (1971). The
                  UNITED STATES V. PRESTON                          19

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 persons who are mentally ill or mentally
retarded.” ABA Criminal Justice Mental Health Standards,
Standard 7-5.8(b), available at http://www.americanbar.org/
publications/criminal_justice_section_archive/crimjust_
standards_mentalhealth_toc.html. Similarly, the Seventh
Circuit observed that “a finding of involuntariness cannot be
predicated solely upon” the defendant’s mental state, but “his
mental state is relevant to the extent it made him more
susceptible to mentally coercive police tactics.” Smith v.
Duckworth, 910 F.2d 1492, 1497 (7th Cir. 1990) (internal
quotation marks omitted).12

   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


 12
    The Supreme Court has made similar observations when considering
the interrogation of children, recognizing, “[t]hat which would leave a
man cold and unimpressed can overawe and overwhelm a lad in his early
teens.” Haley v. Ohio, 332 U.S. 596, 599 (1948).
20              UNITED STATES V. PRESTON

there is no “single controlling criterion,” 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 (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
(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
                UNITED STATES V. PRESTON                     21

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 (1949). “To maintain a fair state-individual
balance, to require the government to shoulder the entire load,
to respect the inviolability of the human personality, our
accusatory system of criminal justice demands that the
government seeking to punish an individual produce the
evidence against him by its own independent labors.”
Miranda v. Arizona, 384 U.S. 436, 460 (1966) (internal
quotation marks and citations omitted). We recognize that
“important human values are sacrificed where an agency of
the government . . . wrings a confession out of an accused
against his will.” Blackburn, 361 U.S. at 206–07. The
prohibition on the coercion of confessions “also turns on the
deep-rooted feeling that the police must obey the law while
enforcing the law; that in the end life and liberty can be as
much endangered from illegal methods used to convict those
thought to be criminals as from the actual criminals
themselves.” Spano v. New York, 360 U.S. 315, 320–21
(1959).

    Because of these considerations, the question whether a
confession was voluntary is “to be answered with complete
disregard of whether or not [the confessor] in fact spoke the
truth.” Rogers, 365 U.S. at 544. A “coerced confession is
inadmissible under the Due Process Clause even though
statements in it may be independently established as true.”
Watts, 338 U.S. at 50 n.2. Thus, although “coerced
confessions are forbidden in part because of their ‘probable
unreliability,’” Lego v. Twomey, 404 U.S. 477, 484 n.12
(1972), the voluntariness inquiry focuses not on the truth or
falsity of the confession, but on the coercive nature of the
22                  UNITED STATES V. PRESTON

interrogation — again, taking into account the particular
circumstances of the suspect.13

                                     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


  13
    Although probable truth does not demonstrate that a confession was
voluntary, we note that there is abundant research that the intellectually
disabled “are more likely to confess falsely for a variety of reasons.” Jon
B. Gould & Richard A. Leo, One Hundred Years Later: Wrongful
Convictions After a Century of Research, 100 J. Crim. L. & Criminology
825, 847 (2010). “[O]f the first 200 DNA exonerations in the U.S., 35%
of the false confessors were 18 years or younger and/or had a
developmental disability.” Saul M. Kassin et al., Police-Induced
Confessions: Risk Factors and Recommendations, 34 Law & Hum. Behav.
3, 19 (2010). Another recent study found “69% of exonerated persons
with mental disabilities were wrongly convicted because of false
confessions.” Id. In holding that mentally retarded offenders may not be
executed constitutionally, Atkins noted the “possibility of false
confessions” by such individuals, and that “at least one mentally retarded
person who unwittingly confessed to a crime that he did not commit” had
been given a death sentence. Atkins, 536 U.S. at 320 & n.25.

     Recognizing the heightened likelihood of false confessions by
intellectually disabled suspects does not contravene Rogers’ directive that
truth or falsity is not part of the voluntariness inquiry. Rather, just as
J.D.B. v. North Carolina, 131 S. Ct. 2394, 2401 (2011), cited the
“heightened risk of false confessions from youth” as a reason to consider
a child’s age — not the truth or falsity of the child’s confession — as part
of the Miranda in-custody requirement, our observation regarding false
confessions by the intellectually disabled similarly informs the importance
of carefully taking into account the intellectual disability of the suspect —
not the truth or falsity of the confession — as part of the totality-of-the-
circumstances voluntariness inquiry.
                  UNITED STATES V. PRESTON                          23

confession voluntary without regard to the likely impact on
an individual with Preston’s mental characteristics.

    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 (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.” 479 U.S. at 160.14 Connelly’s holding was simply


  14
    In later psychological evaluations, the defendant was found to have
chronic schizophrenia and revealed that he had confessed after hearing
“God’s voice” tell him “either to confess to the killing or to commit
suicide.” Connelly, 479 U.S. at 161.
24               UNITED STATES V. PRESTON

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 susceptibility 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
                UNITED STATES V. PRESTON                    25

(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 (internal citation omitted).         “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
26               UNITED STATES V. PRESTON

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).
                    UNITED STATES V. PRESTON                              27

    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 word “disabled,”
and so asked its meaning. That he had to ask for an
explanation of a common word itself suggests the extent of
his cognitive impairment. After the officers explained the
word’s meaning, Preston agreed that he was disabled,
elaborating that he was not able to complete his schooling as
a result.

       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 . . . formal 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

 15
    Preston’s difficulty understanding language and abstract concepts was
evident at the hearing on his jury trial waiver. After Preston told the
district court that he believed that to be convicted, “[m]aybe five, six” of
the jurors would have to decide that he was guilty, the district court
explained that that was incorrect and that “[i]n order for you to be found
guilty, all twelve of the jurors must agree that you are guilty of the charges
brought against you by the government beyond a reasonable doubt.” The
28                  UNITED STATES V. PRESTON

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


district court then asked Preston if he could be found guilty of the charges
if “eleven jurors thought you were guilty and one juror still thought you
were not guilty.” Preston replied, “Yes.”
   16
      The district court’s finding that Preston’s “responses and verbal
demeanor demonstrate that he understood the questions” was clearly
erroneous. The district court reached that conclusion by listening to the
audio recording and reading the transcript of the interrogation, which we
have done as well. The audiotape and transcript demonstrate that Preston’s
answers were often nonresponsive or muddled, evidencing clear
confusion. Preston’s most common responses were “I don’t know,” “I
don’t remember,” and “Huh?” For example, when Kraus asked Preston
if he remembered the child being over at his house on Friday, Preston
responded, “No. All I know is it’s like — there’s a bunch of little kids
over here, and plus that other guy, but — I don’t know, but — I don’t
know what happened that day, but I wasn’t on drugs, under the influence
or nothing.” Also, the officers sometimes themselves posed garbled
questions, such as “Well, he — okay, but he said — you know, and I —
yeah, he probably wants — so did it happen that day?” Preston did not
ask for them to repeat the question, but instead, much as he often did,
responded, “I don’t know. Probably.”
 17
    People with cognitive deficits generally have “tendencies to mask or
disguise their cognitive deficits and to look to others — particularly
authority figures — for the appropriate cues to behavior.” Richard A.
Leo, Police Interrogation and American Justice 232 (2008). Thus, a
                  UNITED STATES V. PRESTON                        29

intellectual impairment made him more susceptible to the
interrogative pressure. He testified that such distress at “not
understand[ing] everything that is being said to him” creates
situations in which “he may want to acquiesce to what he
thinks people want him to say.” Even if a questioner asks
him about “something that was impossible,” Preston may
agree because he “thought that that’s what they wanted to
hear.”

    (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



“disabled person may feel compelled to answer a question, even if the
question exceeds his ability to answer.” Morgan Cloud et al., Words
Without Meaning: The Constitution, Confessions, and Mentally Retarded
Suspects, 69 U. Chi. L. Rev. 495, 513 (2002).
30               UNITED STATES V. PRESTON

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). These 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
                    UNITED STATES V. PRESTON                            31

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 trained in psychological techniques
designed to induce confessions from reluctant suspects.
384 U.S. at 448–59. Outside of the custodial setting, these
techniques have never been held inherently coercive in the
sense that the resulting confessions are necessarily
involuntary, and we are certainly not so holding today. And
the officers’ interrogation of Preston was not lengthy and did
not take place hidden from public view in the confines of a
police station, as was true in many cases in which courts have
deemed the resulting confession involuntary. See, e.g., Reck
v. Pate, 367 U.S. 433, 441 (1961); Doody, 649 F.3d at 1009.
But, as we have recognized, there is “no single litmus-paper
test for constitutionally impermissible interrogation,” and no
individual feature of the interrogation is determinative of
whether a confession is voluntary. Culombe, 367 U.S. at 601.
“[A]s interrogators have turned to more subtle forms of
psychological persuasion,” and away from physical coercion,
“courts have found the mental condition of the defendant a
more significant factor in the ‘voluntariness’ calculus.”
Connelly, 479 U.S. at 164.18 It simply “takes less” in terms


   18
      Culombe v. Connecticut, 367 U.S. 568, 624–25, 634 (1961), for
example, considered the defendant’s “mental age of nine or nine and a
half,” and that he was “suggestible and subject to intimidation,” in finding
32                  UNITED STATES V. PRESTON

of sophisticated police interrogation techniques “to interfere
with the deliberative processes of one whose capacity for
rational choice is limited than it takes to affect the
deliberative processes of one whose capacity is not so
limited.” Smith, 910 F.2d at 1497.

    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.




that his “will was broken.” Reck v. Pate, 367 U.S. 433, 442 (1961), held
a confession involuntary after observing that the nineteen-year-old
“Reck’s youth, his subnormal intelligence, and his lack of previous
experience with the police make it impossible to equate his powers of
resistance to overbearing police tactics with those of” other individuals.
Payne v. Arkansas, 356 U.S. 560, 567 (1958), concluded that the
confession of a “mentally dull 19-year-old youth” was coerced. Fikes v.
Alabama, 352 U.S. 191, 196–97 (1957), determined that a confession was
involuntary in part because the suspect was “uneducated” and “of low
mentality, if not mentally ill,” and so “was a weaker and more susceptible
subject than” in other cases.
  19
     The “Reid method,” named for the manual of which Reid was a co-
author, is widely used by law enforcement agencies. See Miranda,
384 U.S. at 449 n.9; Douglas Starr, The Interview: Do Police
Interrogation Techniques Produce False Confessions?, The New Yorker,
Dec. 9, 2013, at 42.

     Unless specified, the cited portions of the fifth edition of the manual,
released in 2013, are unchanged substantively from the fourth edition,
which was the most recent version when the events at issue took place.
                UNITED STATES V. PRESTON                  33

    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 predator who
repeatedly preys on children — or if the abuse of the child
was a one-time occurrence.

    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
34                  UNITED STATES V. PRESTON

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 interrogative 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



  20
     Psychologists have found that an interrogator’s explicit and implicit
negative feedback, such as “repeating the same questions several times
because the answers given are not acceptable to the interrogator,” can
cause a suspect to “shift” or “adapt” his answers to responses acceptable
to the questioner. Gudjonsson, supra, at 347–48 (internal quotation marks
and citation omitted).
  21
     Research shows that in general, “the mentally retarded are eager to
please.” Leo, supra, at 232. “They tend to have a high need for
approval,” and thus are “prone to being acquiescent,” particularly with
“authority figures.” Id. This desire for approval “is manifested in an
acquiescence response bias, a tendency to say ‘yes.’” Kassin &
Gudjonsson, supra, at 53. A “common phenomenon” among the
intellectually disabled “is the mental process of ‘cheating to lose,’ that is,
accepting blame so that others will not be angry.” Cloud et al., supra, at
511–12. “If an authority figure such as a police officer makes it clear to
the individual that he wants a confession, even an innocent disabled
person may confess so a law enforcement officer will not become angry
with him.” Id. at 512.

    As a result, studies show that “people with mental retardation [are]
more likely to yield to leading questions and change their answers in
response to mild negative feedback.” Kassin et al., supra, at 21.
                    UNITED STATES V. PRESTON                              35

    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 detail. The same pattern was
repeated to pressure Preston to adopt the suggested fact that
he had unzipped his pants.

     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




   22
        Although the introduction of the incorrect facts here was not
intentional, the Reid manual suggests that officers may introduce such
falsities to verify the accuracy of a confession: “[o]ne method for checking
the authenticity of a voluntary confession, or one that seems to be the
result of mental illness, is to introduce some fictitious aspects of the crime
and test whether the suspect will accept them as actual facts relating to the
occurrence.” Reid manual, supra, at 349.
36                  UNITED STATES V. PRESTON

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


     23
       The district court’s finding that Preston’s admissions were not
necessarily tied to the previous Friday is clearly erroneous. As explained
above, Preston admitted that there were “a bunch of little kids over here”
in response to questions about whether the victim was at his home six days
before, on Friday. Preston eventually admitted that the child had come in
when asked again, “So what happened Friday? . . . So you were inside in
there. Did the kids come inside then?”

     The district court’s suggestion that the officers’ occasional references
to the correct day of the month dissipated any confusion created by the
numerous, repeated references to the wrong day of the week is also clearly
erroneous. Twice, the officers referred to the “the 23rd,” but they always
coupled this date with the incorrect day of the week, which they
emphasized more than the date. In the first instance, Kraus said, “Did he
come over here on? Was it the 23rd, Friday? Yeah? Yeah, the 23rd,
which would have been, what, a week ago?” Secatero responded, “Yeah.”
Kraus continued, “Yeah, a week ago Friday.” Secatero affirmed, “Last
Friday.”

     Later, when Kraus was writing the confession, he said to Preston,
“basically, what you’re saying is, on the 24th, which was last Friday, you
were inside and —“ Secatero interjected that the “23rd is the Friday.”
After Kraus agreed, Secatero corrected himself, saying “Or — well,
Thursday. . . . Thursday evening, and the interview [of the child] took
place on the 24th, Friday. It was last Thursday . . . Yeah, last Thursday.”
Kraus then continued to Preston, “So on Thursday, you were hanging out
inside, and who else was — who else was there?” Preston responded,
“Huh?” The references to the correct day of the month embedded within
these exchanges could hardly have cleared up the confusion.
     24
      Researchers have observed that this type of persistence can be
particularly hard to resist for suspects who are naturally compliant and
eager to please, such as the intellectually disabled. Welsh S. White, False
Confessions and the Constitution: Safeguards Against Untrustworthy
Confessions, 32 Harv. C.R.-C.L. L. Rev. 105, 124–25 (1997) (internal
                    UNITED STATES V. PRESTON                             37

    That Preston attempted to tell the officers what they
wanted 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 questions with other techniques that the Reid manual
specifically cautions against. The Reid manual specifically
warns that the questioning “should not be, in any way, based
on leniency if the more understanding alternative question is
accepted.” Reid manual, supra, at 300 (emphasis added). It
also cautions that when questioning people of low
intelligence, investigators should avoid offering promises of
leniency or using deceptive interrogation techniques due to
the vulnerability of this group. Id. at 332–33, 352, 429.

    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.



citations omitted). “When an interrogator repeatedly tells a suspect that
there is not the slightest doubt of his guilt and brushes aside the suspect’s
attempt to give a different version of the facts, the suspect is even more
likely to acquiesce.” Id. at 125.
38                  UNITED STATES V. PRESTON

    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 questions, and threatened that they would
keep returning until Preston did so. In this way, the police
paired the prospect of relentless questioning with false
promises of leniency.25 Such tactics, in combination, would
be hard for a person of Preston’s impaired intelligence to
withstand or rationally evaluate.26

    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 (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


  25
     We point out the officers’ statements that Preston was free to leave
only after the questioning was finished and that the officers would return
until he answered their questions not to suggest that Preston was in
custody for Miranda purposes, but to show some of the pressures the
officers put upon Preston to overbear his will.
  26
     Studies show that “people with significant intellectual impairment do
not fully appreciate the legal consequences for suspects of making self-
incriminating admissions during questioning.” Gudjonsson, supra, at 326;
see id. (describing a “mean IQ score of 68” as a “significant intellectual
impairment”). So a person such as Preston would not be able to see past
the officers’ lies about the use of his apology letter or the punishment that
he could face to understand “the implications or consequences of his
statements in the way a person of normal intelligence” would. President’s
Panel on Mental Retardation, supra, at 33.
                UNITED STATES V. PRESTON                     39

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 (1976)
(per curiam) (quoting Bram v. United States, 168 U.S. 532,
542–43 (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 particularly problematic when used on a person with an
intellectual disability. Intrinsic falsehoods, which relate to
the facts of the crime itself or of the investigation — such as
falsely informing a suspect that the victim had survived and
identified the suspect — do “not lead [the suspect] to consider
anything beyond his own beliefs regarding his actual guilt or
innocence, his moral sense of right and wrong, and his
judgment regarding the likelihood that the police had
garnered enough valid evidence linking him to the crime.”
Holland v. McGinnis, 963 F.2d 1044, 1051–52 (7th Cir.
1992). But here, the police did not simply inflate the amount
of incriminating evidence against Preston. Instead, they
suggested falsely that if he confessed, his admissions would
not be used against him — he could “move on” after
apologizing to the child, rather than being punished. This
approach “interject[ed] the type of extrinsic considerations”
more likely to “distort[] an otherwise rational choice of
40                  UNITED STATES V. PRESTON

whether to confess or remain silent.” Id. at 1051.27 The
intellectually disabled are more susceptible to such extrinsic
deception tactics.

    “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


 27
    This danger is illustrated by Lynumn v. Illinois, 372 U.S. 528 (1963),
in which the Supreme Court deemed police trickery of this sort, taken to
an extreme, to render a confession involuntary. In Lynumn, the police told
a young mother, who had no prior experience with the police and no
reason to believe the police were not capable of carrying out their threats,
that if she were charged with a crime, she would probably lose her welfare
benefits and custody of her children, but that if she cooperated, they
“would go light with her.” Id. at 533–34. The Court deemed it “clear that
a confession made under such circumstances must be deemed not
voluntary, but coerced.” Id. at 534; see also Holland, 963 F.2d at 1052
(describing Lynumn and explaining that this sort of pressure “distorted the
suspect’s rational choice (i.e., is it wise or morally right to confess given
[her own understandings of her guilt or innocence and moral sense of right
and wrong]?) by introducing a completely extrinsic consideration: an
empty but plausible threat to take away something to which she and her
children would otherwise be entitled”).
                UNITED STATES V. PRESTON                     41

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 continue
without end; the pressure placed on Preston to adopt certain
responses; the use of alternative questions that assumed his
culpability; the officers’ multiple deceptions about how the
statement would be used; the suggestive questioning that
provided details of the alleged crime; and the false promises
of leniency and confidentiality — leave us convinced that
Preston’s will was overborne and his statement involuntary.
“The line between proper and permissible police conduct and
techniques and methods offensive to due process is, at best,
a difficult one to draw, particularly in cases such as this
where it is necessary to make fine judgments as to the effect
of psychologically coercive pressures and inducements on the
mind and will of an accused.” Haynes v. Washington,
373 U.S. 503, 515 (1963). But we have long been aware that
even “subtle coercion . . . can have an extraordinary effect on
one of low mental capabilities.” N. Mariana Islands,
976 F.2d at 485. We must be mindful to protect the
constitutional rights of all members of our society, not just
42                UNITED STATES V. PRESTON

those of normal intelligence and cognitive functioning. Even
if we would reach a different conclusion regarding someone
of normal intelligence, we hold that the officers’ use of the
methods employed here to confuse and compel a confession
from the intellectually disabled eighteen-year-old before us
produced an involuntary confession.

   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,” 18 U.S.C. § 2246(3).

    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


     28
     The government has not argued that the admission of Preston’s
confession constituted harmless error. See Arizona v. Fulminante,
499 U.S. 279, 295–96, 306–12 (1991). We therefore do not consider
whether the admission of the confession contributed to his conviction.
                UNITED STATES V. PRESTON                     43

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
(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 (1978). This exception recognizes that
the “Double Jeopardy Clause forbids a second trial for the
purpose of affording the prosecution another opportunity to
supply evidence which it failed to muster in the first
proceeding.” Id. 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.

    Viewing all the evidence introduced at trial, including the
erroneously admitted confession, Lockhart, 488 U.S. at
40–41, in the light most favorable to the prosecution, a
“‘rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt,’” United States v.
Rios, 449 F.3d 1009, 1011 (9th Cir. 2006) (quoting Jackson
v. Virginia, 443 U.S. 307, 319 (1979)). There was sufficient
evidence to support that the sexual act took place, including
Preston’s confession, the child’s statements to his
grandparents and uncle, and the child’s repeated complaints
of pain. Further, contrary to Preston’s contention that his
denial of being motivated by a sexual “urge” undermines
entirely a finding of the requisite intent, we have long
recognized that a jury may draw inferences from
circumstantial evidence to find the requisite intent. See, e.g.,
Ngo v. Giurbino, 651 F.3d 1112, 1114–15 (9th Cir. 2011).
There is little doubt that the jury had ample circumstantial
44                  UNITED STATES V. PRESTON

evidence, including the evidence of the act itself, to find that
Preston intended to gratify his sexual desire.

    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 evidence 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.




  29
     We need not reach Preston’s other grounds for appeal, including that
his jury trial waiver — which he entered with the understanding that his
confession would be admitted at trial — was not voluntary, knowing, and
intelligent. Even if the prior jury trial waiver was voluntary, because we
have found error entitling Preston to a retrial, Preston’s earlier consent to
a bench trial, made prior to this appeal, does not carry over to any later
retrial. See United States v. Mortensen, 860 F.2d 948, 950 (9th Cir. 1988);
see also United States v. Groth, 682 F.2d 578, 579–80 (6th Cir. 1982);
F.M. Davies & Co. v. Porter, 248 F. 397, 398 (8th Cir. 1918).
                   UNITED STATES V. PRESTON                            45

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.

                                    I.

      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


  1
    I also concur fully in Part V of the majority opinion and with the
majority’s holding in Part II.E. that we must overrule Derrick v. Peterson,
924 F.2d 813, 818 (9th Cir. 1991).
46                  UNITED STATES V. PRESTON

any time, and that he was free to leave 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


  2
     The majority makes much of an officer’s comment to Preston that,
“[a]fter the interview, you’re free to go.” Maj. op. at 11, 38. Not only
does the majority’s broad interpretation of that phrase disregard the
officers’ two earlier statements articulating clearly that Preston was not
under arrest and was free to leave and free to stop talking at any time, but
the majority also reads the phrase out of context. Immediately following
the quoted comment, the officers reaffirmed their meaning: “We’re not
here to put the handcuffs on you today . . . .” Rather than communicating
to Preston that he was currently not free to leave, as the majority suggests,
the statements that Preston was not going to be arrested after the interview
and that he would be free to leave after the interview merely served to
affirm that he would continue to be free to leave.
                    UNITED STATES V. PRESTON                             47

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 contexts, they are not necessarily
leading and can, at times, serve to clarify a narrative.




  3
    A close analysis of the interview transcript reveals that the officers
asked Preston approximately 17 either-or questions over the course of a
38-minute interview that included dozens of non-either-or questions.
Moreover, those 17 questions, contrary to the majority’s summary
treatment of them as homogenous, fall into two distinct categories:
(1) two either-or questions regarding repeat offender status; and (2) a
series of either-or questions to clarify steps in Preston’s narrative of the
incident.

     The officers asked only two of the 17 questions before Preston began
volunteering information regarding the incident. Those two either-or
questions involved inquiring into whether Preston was a routine assaulter
or whether the alleged event was a one-time occurrence. Contrary to the
majority, I did not interpret Preston’s response to those questions as
confused acquiescence. Preston responded repeatedly in the negative or
with “I don’t know,” and at no point did he acquiesce in response to those
questions. Rather, what I find troublesome about those questions is not
that they trapped Preston into a binary answer—an answer that he notably
did not provide—but that the officers coupled their 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 33. 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.
48              UNITED STATES V. PRESTON

    Contrary to the majority, maj. op. at 35–36, 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
(1973). Rather, voluntariness is viewed as a spectrum: At
one 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
(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
                 UNITED STATES V. PRESTON                     49

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 (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 condemn
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 (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).
50              UNITED STATES V. PRESTON

    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 day 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
                UNITED STATES V. PRESTON                   51

                           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.
52                 UNITED STATES V. PRESTON

         [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 officers made the
statements, overcame Preston’s will and tricked him into
confessing. “Because the police tactics and trickery produced
a confession which was neither rational nor the product of an
essentially free and unconstrained choice,” Henry, 197 F.3d
at 1028, the confession was rendered involuntary.

    For these reasons, I conclude that the district court erred
in admitting Preston’s confession at trial. I therefore concur


     4
     See, e.g., United States Government Accountability Office, U.S.
Department of Justice Declinations of Indian Country Criminal Matters,
at 3 (Dec. 13, 2010) (finding that United States Attorney offices had
declined to prosecute “67 percent of sexual abuse and related matters” in
Indian Country for fiscal years 2005 through 2009). Because of those
very low rates of prosecution, which are widely known, Preston may have
been more inclined to believe the officers’ promises of confidentiality.
                UNITED STATES V. PRESTON                    53

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 (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
54              UNITED STATES V. PRESTON

universe of what was possible. Such either-or and leading
questions suggesting culpability normally are permissible in
police 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.
