NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 05 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 10-10435
Plaintiff - Appellee, D.C. No. 2:05-cr-00360-JAM-1
v.
MEMORANDUM*
JAMES THOMAS FLOCKER,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted October 17, 2012
San Francisco, California
Before: B. FLETCHER,** HAWKINS, and MURGUIA, Circuit Judges.
James Thomas Flocker (“Flocker”) appeals from his jury trial conviction on
three counts involving possession and distribution of images depicting minors
*
This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
**
The Honorable Betty Binns Fletcher, Senior Circuit Judge for the Ninth
Circuit Court of Appeals, fully participated in the case and concurred in the judgment
prior to her death.
engaged in sexually explicit conduct.1 Flocker alleges a variety of errors, including
evidentiary rulings, instructional error, and insufficiency of the evidence. We affirm.
The district court did not abuse its discretion in admitting the testimony of the
government computer expert. The court held an evidentiary hearing on the expert’s
qualifications and methodology, and reasonably concluded the requirements of
Daubert2 and Federal Rule of Evidence 702 were satisfied. Although Detective
Partika was not officially California certified at the time he conducted his examination
of Flocker’s computer, he had taken and successfully completed several advanced
courses in forensic examination of data and conducted the computer examination
applying generally accepted methods and software. See United States v. Smith, 520
F.3d 1097, 1105 (9th Cir. 2008); United States v. Abonce-Barrera, 257 F.3d 959, 965
(9th Cir. 2001). Flocker’s counsel did highlight some minor deviations from protocol,
but those go to the weight of the testimony and not its threshold admissibility. See
S.M. v. J.K., 262 F.3d 914, 921 (9th Cir. 2001); United States v. Senchenko, 133 F.3d
1153, 1157 (9th Cir. 1998).
1
Specifically, Flocker was convicted of transportation of such images in
violation of 18 U.S.C. § 2252(a)(1), distribution in violation of 18 U.S.C.
§ 2252(a)(2), and possession in violation of 18 U.S.C. § 2252(a)(4)(B).
2
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
2
Nor did the district court abuse its discretion by admitting evidence of four
prurient stories as other act evidence of Flocker’s intent under Federal Rule of
Evidence 404(b). Flocker’s primary objection is that the jury could have improperly
used the stories to inform its decision of whether the photos of young boys
urinating—naked or partially clothed—were lascivious exhibitions of genitalia,
instead of looking only at the four corners of the photographs. However, the court did
not admit the stories for that purpose. The government was also required to prove that
Flocker knew (at the time he emailed them) that the photos were lascivious and
sexually exploitative of children. These stories—involving urination between adults
and children in a sexual context—were admitted as relevant to Flocker’s knowledge
and intent. Cf. United States v. Curtin, 489 F.3d 935, 948–50 (9th Cir. 2007) (en
banc). The court partially redacted the stories and gave a specific limiting instruction
(both at the time of introduction and again at close of evidence) that they were to be
used only for this limited purpose, and a presumption arises that the jury followed
those instructions. See United States v. Sullivan, 595 F.2d 7, 8–9 (9th Cir. 1979).
Viewing all evidence in the light most favorable to the government, as we are
required to do,3 there was sufficient evidence to support the interstate commerce
element of Counts 1 and 2. With respect to Count 1 (transportation), there was
3
United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc).
3
uncontested testimony that agents investigated the person to whom Flocker sent
emails with photos (from California) and believed the recipient was in Spartanburg,
South Carolina. Supporting Count 2 (distribution) was testimony that a series of
photos involving a young victim (the “Jesse” series) had been taken in Kentucky and
one of the photos Flocker uploaded to Yahoo! involved this same victim and same
background. See United States v. Lynn, 636 F.3d 1127, 1135 (9th Cir. 2011).
The district court did not plainly err by failing to give a specific unanimity
instruction with respect to each count. The court gave a general unanimity instruction
and the evidence in this case was not so complex or confusing that a more specific
instruction was required, especially because the counts were based on a single upload
(Count 2) and a single email (Count 1). See United States v. Anguiano, 873 F.2d
1314, 1319–20 (9th Cir. 1989); United States v. Ferris, 719 F.2d 1405, 1407 (9th Cir.
1983). Moreover, although the jury needed to unanimously agree that the defendant
committed each element of the crime, it was not required to agree on which of several
possible means the defendant used to commit a particular element. Schad v. Arizona,
501 U.S. 624, 631–32 (1991); see also United States v. Hofus, 598 F.3d 1171,
1176–77 (9th Cir. 2010).
Finally, there was no plain error in the district court’s instruction on the
interstate commerce element of Count 2. Even assuming error in failing to inform the
4
jury it needed to find the photographs had traveled in interstate commerce before
Flocker uploaded them to the Yahoo! group, any such error did not affect Flocker’s
substantial rights. As noted above, there was uncontested testimony that one of the
pictures in the California-based upload was from the Jesse series which had been
photographed in Kentucky and thus had traveled in interstate commerce before the
upload.
AFFIRMED.
5