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NOT FOR PUBLICATION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.