United States v. Joshua Flores

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 4, 2024
• Docket: 22-10256
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 4 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-10256

Plaintiff-Appellee, D.C. No. 3:20-xr-90052-MMC-1 v.

JOSHUA FLORES, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California Maxine M. Chesney, District Judge, Presiding

Argued and Submitted February 8, 2024 San Francisco, California

Before: R. NELSON, FORREST, and SANCHEZ, Circuit Judges.

Appellant Joshua Flores appeals his convictions for interfering with agency

actions, disorderly conduct, and intoxication to a dangerous degree in a public park.

We have jurisdiction under 28 U.S.C. § 1291. We affirm, albeit on different grounds.

1. Right to Confrontation. Flores argues that the district court violated his

Sixth Amendment right to confrontation by admitting at trial testimony given by

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Park Ranger Paul Scholtz over Zoom during an earlier suppression hearing in

Flores’s case. The testimonial statement of a witness who does not appear at trial

may be admitted only if the witness is “unavailable to testify, and the defendant had

had a prior opportunity for cross-examination.” United States v. Johnson, 875 F.3d

1265, 1278 (9th Cir. 2017) (quoting Crawford v. Washington, 541 U.S. 36, 53–54

(2004)).

Flores contends that he was denied an opportunity to cross-examine his

“accuser face-to-face in front of the trier of fact” because Ranger Scholtz “only ever

appeared in court via Zoom” during the suppression hearing. We reject this

argument. Flores consented to the remote format for his suppression hearing and had

an opportunity to and, in fact, did cross-examine Ranger Scholtz. Cf. United States

v. Owens, 484 U.S. 554, 559 (1988) (stating that the “Confrontation Clause

guarantees only ‘an opportunity for effective cross-examination’” (quoting Kentucky

v. Stincer, 482 U.S. 730, 739 (1987))).

Flores also contends that Ranger Scholtz’s health condition that made travel

from his residence on the East Coast difficult did not render him unavailable to

appear at trial. Courts determine whether a witness is unavailable for Confrontation

Clause purposes by looking to whether the government “made a good-faith effort to

obtain his presence at trial.” Hardy v. Cross, 565 U.S. 65, 69 (2011) (quoting Barber

v. Page, 390 U.S. 719, 724–25 (1968)). We have applied this standard to determine

2 whether a witness residing abroad was unavailable. See United States v.

Alahmedalabdaloklah, 94 F.4th 782, 818 (9th Cir. 2024). But as Flores sees it,

Crawford altered the Sixth Amendment landscape by holding that the Confrontation

Clause “is most naturally read as a reference to the right of confrontation at common

law, admitting only those exceptions established at the time of the founding.” 541

U.S. at 54. And because we have not assessed the bounds of unavailability as it

relates to illness under the common law of 1791, he argues that the good-faith effort

test does not squarely apply. See United States v. Castillo, 69 F.4th 648, 657 (9th

Cir. 2023) (“[U]nstated assumptions on non-litigated issues are not precedential

holdings binding future decisions.” (quoting Medina-Rodriguez v. Barr, 979 F.3d

738, 747 (9th Cir. 2020))); see also United States v. Shayota, 934 F.3d 1049, 1053

(9th Cir. 2019) (O’Scannlain, J., specially concurring) (“Our court has yet to do that

work, but history suggests that the scope of unavailability may be narrower than our

court has recognized.”).

After threading the needle of prior precedent, Flores argues that unavailability

under the common law of 1791, at most, included only witnesses that were dead,

missing, or outside the jurisdiction. And he musters at least some historical sources

from around the founding to support his argument. See Le Baron v. Crombie, 14

Mass. 234, 236 (1817) (“Admitting it to be the rule here, as well as in England, that

the declarations of a dead witness . . . may be proved, it by no means follows that

3 declarations so made by a witness still living, but who has become incompetent, can

be so received.”); Francis Buller, An Introduction to the Law Relative to Trials at

Nisi Prius 242 (5th ed., New York, Hugh Gaine 1788) (stating that if a witness “be

dead, or beyond Sea, their Depositions may be read”).

Although “[t]he Supreme Court has yet to consider the historical limitations

of the unavailability requirement,” Shayota, 934 F.3d at 1054 (O’Scannlain, J.,

specially concurring), and Flores makes an interesting argument about what

unavailability meant under the common law of 1791, we need not wade into this

issue. Even if the district court violated Flores’s confrontation right by admitting the

Ranger’s testimony from the suppression hearing, the Government met its burden to

establish that any confrontation error was harmless. See United States v. Nguyen,

565 F.3d 668, 675 (9th Cir. 2009).

Whether a confrontation error was harmless “depends on a variety of factors

including: (1) the importance of the evidence to the prosecution’s case; (2) whether

the evidence was cumulative; (3) the presence of corroborating evidence; [and] (4)

the overall strength of the prosecution’s case.” Shayota, 934 F.3d at 1052 (quoting

United States v. Bernard S., 795 F.2d 749, 756 (9th Cir. 1986)). Here, there was

more than sufficient evidence supporting Flores’s convictions even absent Ranger

Scholtz’s testimony. See id.

For instance, the public intoxication to a dangerous degree charge was

4 supported by several other witnesses testifying to Flores’s alcohol intake, signs of

intoxication, and violent behavior. See 36 C.F.R. § 2.35(c). And the interference

with agency actions and disorderly conduct charges were supported by two different

videos capturing Flores’s interactions with law enforcement. In these videos, Flores

clearly refused orders from an officer to leave the car; struggled with officers as they

attempted to detain him; and continued to yell, kick, and bang the interior of the

patrol vehicle. See id. § 2.32(a)(1) (prohibiting “resisting . . . or intentionally

interfering with a government employee or agent engaged in an official duty”); id.

§ 2.34(a)(1) (“A person commits disorderly conduct when, with intent to cause

public alarm, nuisance, jeopardy or violence, or knowingly or recklessly creating a

risk thereof,” he “[e]ngages in fighting or threatening, or in violent behavior.”).

The only open question was whether Flores possessed the requisite intent

under 36 C.F.R. §§ 2.32(a)(1) and 2.34(a)(1) to satisfy these charges. And as the

Government points out, Ranger Scholtz’s “prior testimony had no bearing on the

question of intent, which turned instead on [an expert’s] credibility and Flores’s

recorded statement[s].” Accordingly, any Confrontation Clause violation was

harmless as Ranger Scholtz’s testimony was cumulative or irrelevant—and possibly

both—to proving the charges against Flores.

2. Right to a Jury Trial. Flores also argues that the district court violated his

Sixth Amendment right to a jury trial. “The Supreme Court has held as a matter of

5 constitutional law that ‘petty’ offenses may be tried without a jury.” United States v.

Clavette, 135 F.3d 1308, 1309 (9th Cir. 1998). Flores acknowledges this but

preserves the issue for further review. Applying our precedent, we reject this

argument.

AFFIRMED.