Argued and Submitted, San Francisco, California:
February 12, 2013.
[Copyrighted Material Omitted]
Appeal from the United States District Court for the District of Arizona. D.C. No. 4:10-cr-02378-CKJ-CRP-1. Cindy K. Jorgenson, District Judge, Presiding.
Jill E. Thorpe (argued), Tucson, Arizona, for Defendant-Appellant.
John S. Leonardo, United States Attorney, District of Arizona; Christina M. Cabanillas, Appellate Chief; and Raquel Arellano (argued), Assistant United States Attorney, for Plaintiff-Appellee.
Before: Dorothy W. Nelson, Stephen Reinhardt, and Milan D. Smith, Jr., Circuit Judges. Opinion by Judge Reinhardt.
REINHARDT, Circuit Judge:
IMM, a juvenile, appeals his conviction under 18 U.S.C. § § 2241 and 2246 for sexually abusing his six year old cousin. To convict him of sexual abuse, the government had to prove beyond a reasonable doubt " contact between the penis and the vulva or the penis and the anus," with " contact" defined as " penetration, however slight." § 2246(2)(A). We conclude that the government's jurisdictional certification under 18 U.S.C. § 5032 was sufficient, that the district court did not err in admitting the testimony of a seven year old witness, and that the evidence introduced at trial was sufficient to support the conviction. We reverse and remand to the district court, however, because we conclude that it erred when it admitted into evidence an inculpatory statement obtained from IMM in violation of his Fifth Amendment rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
IMM, his female cousin MM, and her younger brother were playing outside their
grandfather's trailer on an Indian reservation in Arizona. IMM was twelve years old, MM was six years old, and her brother was five years old. At some point in the afternoon, their grandfather went to check on them and found MM standing in front of the boys with her pants down. He yelled at her and asked " what the hell they were doing," to which she replied, " They told me to take my clothes off." The boys were sitting next to each other on a propane tank and both of them had their clothes on. Their grandfather started cursing. Although MM had shown no signs of distress when her grandfather first arrived, she started crying after he began yelling at her. He then marched into the house to tell MM's mother what he had seen.
There is conflicting testimony as to what happened next. The children's grandfather testified that MM's mother was asleep when he found her in the house, and that he woke her up and said, " You are not even watching your kids and this is what they are doing. [MM] is over there without her clothes in front of the boys." He also testified that she then called her children and started " beating [MM's brother]" when he ran into the house. He added that, after beating her son, she went looking for MM and spanked her too, and that, later that evening, IMM was taken by another family member over to the house of his great aunt.
MM's mother offered a somewhat different account of the events at trial. In her telling, the children's grandfather found her in the house " changing [her] printer for [her] camera" and said " [t]hat [IMM] was doing something to [MM], and to go check on them." She recalls that MM's brother came into the house and said, " [IMM] did it," at which point she walked through the house until she found MM, who " had her head down, and . . . was crying." She specifically denies spanking either of her children. She remembers that instead, she immediately went looking for IMM, and that " she started yelling for him, [screaming] that I was going to call the police." Unable to find him, she then discovered MM in the closet, crying. She reports that she asked MM if IMM had done anything to her and MM nodded. At trial, she initially testified several times that this was all that had happened, but then stated after further questioning by the prosecutor that MM had also said that " [IMM] made her do it."
MM's mother did not check MM for any physical signs of sexual assault, or ever take her to the hospital or the police station for a physical examination. MM did not ever complain of any pain; nor did her mother ever ask her any questions about what IMM did to her. Instead, MM's mother testified that she called the police right away. Although the disputed events occurred before sunset and before dinner, and although she testified that her family usually eats dinner before 6:00 p.m., the police report states that she first spoke to the police at 8:00 p.m. that night. She was not on speaking terms with the children's grandfather or IMM's mother at the time, and for that reason did not speak with either of them about what had happened.
MM's younger brother also testified at the trial. Before he testified, however, defense counsel requested that a hearing be held to evaluate whether he was competent to testify. He was five years old when he purportedly witnessed the incident and was seven years old at the time of the trial. The district judge asked him several questions about " the difference between . . . telling the truth, and telling a lie." After some initial confusion, he correctly answered a series of questions about whether it would have been the truth or a lie for him to make certain statements.
Although he was not sure what would happen if he told a lie, he answered " Yes" when asked, " Do you understand how important it is for you to tell the truth today?" He also answered " Yes" when asked, " And do you know that you could get in trouble if you didn't tell the truth?" Later in the hearing, in response to questions from defense counsel, he confused a " promise" with a " secret." After the district judge questioned him further, however, he demonstrated that he understood the concept of a promise. The court made a preliminary determination that he was competent to testify and later made that determination final.
MM's younger brother testified that he had seen MM and IMM " having sex." When asked what this meant, he reiterated that they were " having sex" and then admitted that he did not know what " having sex" meant or where he had heard these words before. He stated that, on the day of the purported incident, MM had been sitting on IMM's lap, that both of their pants had been pulled down, and that MM had been facing away from IMM while she sat on his lap. He added that he had seen IMM's " dingamajiger," though he could not remember what color or size it was, and that IMM had put his dingamajiger in MM's " private," the part that " poops." On cross-examination, when asked, " Do you remember the day that you were just talking about?", he answered, " No." He then answered " I don't know" when asked how he could talk about events he did not remember. When defense counsel asked if someone had talked to him about the incident and told him what to say, he said yes and stated that his mother had told him what to say. When she testified, his mother stated that she had never spoken with him about what he saw or what had happened that day, and that she had never told him what to say in IMM's case. She then asserted that his statement to the contrary was a lie.
The police did not interview IMM until more than seven months after the incident under investigation. A detective, who was in plain clothes but visibly armed, drove to IMM's home and transported him and his mother to the police station in an unmarked car. The drive lasted 30 to 40 minutes. At the police station, which was staffed by uniformed police officers, the detective escorted IMM and his mother into a small room about five or six feet by five or six feet--just big enough for a small desk, approximately four chairs, and a recording device. The detective closed the door and kept it closed the entire time he was with IMM (including the brief period he was with IMM and his mother).
The detective testified that he did not read IMM his rights under Miranda . Nor, he admitted, did he have IMM sign a consent form. Instead, he read the Parental Consent to Interview a Juvenile Form to IMM's mother and had her sign it. Although IMM was sitting in the room at the time, the detective read the Parental
Consent to Interview a Juvenile Form to his mother, and no evidence was offered that IMM was listening to the reading of the Form or that he understood its contents. His mother signed the Form and agreed to wait in the lobby because she thought the detective " would treat [IMM] like a child." The detective ordered IMM to wait in the room while he escorted IMM's mother to the lobby, leaving the door shut. When he returned, the detective said to IMM, " I read your mom those rights, okay, so at any time throughout the, the interview you don't feel comfortable, you can stop and you don't have to answer any questions." The detective then asked if IMM understood and IMM replied, " Uh-huh."
IMM was twelve years old at the time of the interview, though the detective later testified that IMM " looked a little younger." As IMM's mother noted at the suppression hearing, IMM had been in special education classes and could read only at a second grade level, even though he was in sixth grade. IMM also had emotional problems stemming from his troubled home life. He had witnessed his father try to kill his mother and may have been sexually abused by his father. IMM's mother testified that IMM's grandfather, who found the children outside his trailer, was " the only positive  male role model" in IMM's life and that IMM called him " dad." She added that IMM and his grandfather were " pretty close."
The detective had no special training in conducting interviews with juveniles or juvenile suspects. He also testified, remarkably, that he had never heard of false confessions. He added that he saw no problem with an officer, in an interrogation, telling a young child with special education needs what the officer would like that child to say.
The detective spent 55 minutes questioning IMM, beginning his questioning by asking IMM basic identifying information. IMM did not know his own address. The detective then pressed IMM for details on what had happened with his cousins outside his grandfather's trailer. At first, and for nearly half of the interrogation, IMM denied that any sexual conduct had occurred. He explained repeatedly that he had kept his pants on when MM sat on his lap. He also said " I don't know" and " I don't really remember" in response to several questions.
The detective responded by using what he later described as " deception." Even though IMM's grandfather did not, in fact, see IMM do anything improper, the detective repeatedly insisted to IMM that his grandfather had seen IMM sexually abuse MM. The detective lied to IMM, insisting that his grandfather had said he " saw [IMM] touching [MM]." When IMM disagreed, the detective asked questions such as, " Would you consider your grandpa a liar?", and reminded IMM that " we've already made the decision that grandpa doesn't lie right?" Even as he told IMM that his grandfather had reported abuse and implied that any disagreement meant that IMM thought his grandfather was a liar, the detective warned IMM: " [T]his isn't really a big thing but it can turn into a big thing if you're not going to be honest." He added, " I don't want to go over[,] well, I don't remember or uh, this is what happened[,] because I know what happened because I talked to people who saw it, who know, who have heard." When IMM again recounted what happened and maintained that he had not abused MM, the detective sharply interrupted him and ...