United States v. Rodney Flucas

Opinion

FILED NOT FOR PUBLICATION JAN 21 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, Nos. 19-10065 19-10420 Plaintiff-Appellee, D.C. No. v. 2:17-cr-00209-KJM-1

RODNEY FLUCAS, AKA Rodney J. Flucas, AKA Rodney Rochea Flucas, MEMORANDUM* AKA Rodney Rochen Flucas,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Kimberly J. Mueller, Chief District Judge, Presiding

Argued and Submitted September 3, 2021 San Francisco, California

Before: SCHROEDER, RAWLINSON, and BYBEE, Circuit Judges. Dissent by Judge BYBEE

Rodney Flucas (Flucas) appeals his convictions for transportation of an

individual with intent to engage in criminal sexual activity, transportation of a

minor with intent to engage in criminal sexual activity, and attempted witness

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. tampering. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm the

district court’s judgment.1

1. Flucas was not entitled to a jury instruction that the government was

required to prove beyond a reasonable doubt that he had knowledge of pending

federal proceedings in order to be convicted of attempted witness tampering in

violation of 18 U.S.C. § 1512. See United States v. Jinian, 725 F.3d 954, 966 n.7

(9th Cir. 2013), as amended (holding that “[t]he government . . . need not show

that the defendant intended to prevent a communication from reaching a law

enforcement officer whom the defendant knew to be a federal officer because 18

U.S.C. § 1512(g)(2) provides that no state of mind need be proved with respect to

the victim’s status as a federal officer”) (citation and internal quotation marks

omitted) (emphasis in the original).

2. We decline to address on direct appeal Flucas’ claim that his counsel

rendered constitutionally defective performance by stating that Flucas would

commit perjury if he testified. See United States v. Singh, 979 F.3d 697, 732 (9th

1 Flucas also filed a notice of appeal of a restitution order entered by the district court on November 22, 2019. However, Flucas does not meaningfully challenge the restitution order in his opening brief. “It is well established that an appellant’s failure to argue an issue in the opening brief, much less on appeal more generally, waives that issue, with exceptions not relevant here.” Freedom From Religion Found., Inc. v. Chino Valley Unified Sch. Dist. Bd. of Educ., 896 F.3d 1132, 1152 (9th Cir. 2018) (citation omitted). 2 Cir. 2020) (explaining that “[w]e will consider an ineffective assistance claim on

direct appeal only where the record is sufficiently developed to permit review and

determination of the issue, or the legal representation is so inadequate that it

obviously denies a defendant his Sixth Amendment right to counsel”) (citation and

internal quotation marks omitted).

3. The district court sufficiently determined that use of closed-circuit

television for Person 3’s testimony was necessary based on: (1) its determination

in the first trial that “the trauma Person 3 may suffer if forced to testify in Flucas’s

presence [was] not de minimis,” (2) the opinion of Person 3’s treating therapist, (3)

Person 3’s in camera statements regarding her ability to testify, and (4)

information provided by the government concerning Person 3’s disturbing conduct

prior to her scheduled testimony in the second trial. See United States v. Garcia, 7

F.3d 885, 889 n.1 (9th Cir. 1993) (articulating that, in approving use of closed-

circuit testimony, the district court should determine that “the child’s emotional

trauma [is] such that he or she cannot reasonably communicate in the defendant’s

presence”) (internal quotation marks omitted).

4. The district court did not abuse its discretion in denying Flucas’

3 request for a special verdict form because the district court gave a unanimity

instruction for the transportation count. See United States v. Ramirez, 537 F.3d

1075, 1083-84 (9th Cir. 2008).

5. The district court did not abuse its discretion in excluding evidence

that, eight years prior to Flucas’ trial, the DNA expert was sued for fraud in a case

that was resolved by settlement with no admission of liability. See United States v.

Charley, 1 F.4th 637, 643 (9th Cir. 2021) (noting that evidence should be excluded

under Rule 403 “if the court finds that its probative value is substantially

outweighed by a danger of unfair prejudice”) (citation omitted). In any event, the

proffered evidence would have had minimal, if any, impact on the jury’s verdict

given the compelling testimony of Flucas’ victims. See United States v. Lague,

971 F.3d 1032, 1037 (9th Cir. 2020) (observing that even “[i]f the district court

abuses its discretion under Rule 403, we ask whether the government successfully

bore its burden of proof that the error in admitting the evidence was harmless”)

(citation and internal quotation marks omitted).

6. Flucas is not entitled to a new trial due to the prosecution’s aggressive

cross-examination. The district court sustained objections to the prosecutor’s

questions, and the evidence of Flucas’ guilt was so overwhelming that the

4 questions did not “materially affect the fairness of [Flucas’] trial.” United States v.

Ruiz, 710 F.3d 1077, 1084 (9th Cir. 2013) (citations omitted).2

AFFIRMED.

2 Flucas further asserts that cumulative error warrants reversal of his convictions. “Because we do not find any error, there can be no cumulative error.” United States v. Anekwu, 695 F.3d 967, 971 (9th Cir. 2012). 5 FILED United States v. Flucas, Nos. 19-10065, 19-10420 JAN 21 2022 BYBEE, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

For the reasons addressed in the separately filed dissent, I would not reach

the issues the majority has addressed in this memorandum disposition. I, therefore,

respectfully dissent.