United States v. Frankie Maldonado ( 2018 )

Case: 17-30381 Document: 00514490712 Page: 1 Date Filed: 05/29/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-30381
Fifth Circuit
FILED
Summary Calendar May 29, 2018
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
FRANKIE MALDONADO,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Louisiana
USDC No. 1:14-CR-207-1
Before REAVLEY, GRAVES, and HO, Circuit Judges.
PER CURIAM: *
Frankie Maldonado appeals his convictions on two counts of producing
child pornography and one count of traveling in interstate commerce for the
purpose of engaging in sexual conduct with a minor. Maldonado asserts that
the district court reversibly erred and violated the Confrontation Clause of the
Sixth Amendment by applying Federal Rule of Evidence 412 to exclude on
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 17-30381 Document: 00514490712 Page: 2 Date Filed: 05/29/2018
No. 17-30381
cross-examination evidence regarding the minor victim’s prior inconsistent
statement that she had previously engaged in other sexual behavior.
First, he argues that the evidence was not “offered to prove that a victim
engaged in other sexual behavior,” FED. R. EVID. 412(a)(1), but was offered for
the purpose of impeaching the credibility of the minor victim, cf. FED. R. EVID.
613(b). We need not decide whether the district court abused its discretion in
applying the Rule 412(a) bar because, in any event, Maldonado has failed to
show that the exclusion of the evidence affected his substantial rights. See
FED. R. EVID. 103(a); United States v. Tuma, 738 F.3d 681, 687-88 (5th Cir.
2013).
We likewise reject Maldonado’s contention that the evidence of the minor
victim’s prior inconsistent statement was nevertheless admissible under
Rule 412(b)(1)(C) because its exclusion violated his constitutional right to
cross-examine his accuser under the Confrontation Clause. Where, as here, a
Confrontation Clause objection was not asserted in the district court, we
review the issue for plain error only. See United States v. Acosta, 475 F.3d 677,
680 (5th Cir. 2007); see also United States v. Gibson, 875 F.3d 179, 193 (5th
Cir. 2017). The district court did not clearly or obviously violate Maldonado’s
constitutional right of confrontation by excluding on cross-examination
evidence of the minor victim’s prior inconsistent statement regarding her past
sexual behavior. See United States v. Escalante-Reyes, 689 F.3d 415, 419 (5th
Cir. 2012) (en banc); United States v. Hitt, 473 F.3d 146, 156-58 (5th Cir. 2006).
AFFIRMED.
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