United States v. Marcelo De Jesumaria , 672 F. App'x 772 ( 2017 )


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  •                                                                            FILED
    NOT FOR PUBLICATION
    JAN 10 2017
    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                      No. 15-50382
    Plaintiff-Appellee,              D.C. No. 2:14-cr-00688-BRO-1
    v.
    MEMORANDUM*
    MARCELO DE JESUMARIA, AKA
    Marcelo Rafael De Jesumaria, AKA
    Marcelo Rafael Iza,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Central District of California
    Beverly R. O’Connell, District Judge, Presiding
    Argued and Submitted June 9, 2016
    Pasadena, California
    Before: RAWLINSON, and BEA, Circuit Judges, and EATON,** Judge.
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    Richard K. Eaton, Judge of the United States Court of International Trade,
    sitting by designation.
    1
    Marcelo De Jesumaria appeals from a jury verdict convicting him of abusive
    sexual contact on an aircraft in violation of 
    18 U.S.C. § 2244
    (b). We have
    jurisdiction under 
    28 U.S.C. § 1291
    . We affirm.
    First, De Jesumaria’s argument that the Government failed to establish
    proper venue in the Central District of California fails. De Jesumaria raised his
    venue objection for the first time in his Motion for Bond Pending Appeal, nearly
    five months after the verdict.1 An objection to venue, however, must be raised
    during the trial or prior to the jury’s verdict. See United States v. Powell, 
    498 F.2d 890
    , 891 (9th Cir. 1974) (“[V]enue may be waived, and where, as here, the
    objection was not raised until after the jury had returned its verdict of guilty, we
    find that waiver did in fact occur.” (citation omitted)); United States v. Marsh, 
    144 F.3d 1229
    , 1242 (9th Cir. 1998); Gilbert v. United States, 
    359 F.2d 285
    , 288 (9th
    Cir. 1966); Hanson v. United States, 
    285 F.2d 27
    , 28 (9th Cir. 1960) (“The general
    rule has long been that an objection as to venue must be raised before the
    government has completed its case.”). Because the question of venue was not
    timely raised, we find that De Jesumaria waived this objection and it cannot be
    considered on appeal.
    1
    De Jesumaria was tried twice. A jury trial began on March 24, 2015, in the
    Central District of California, and resulted in a mistrial. On May 26, 2015, a new
    trial was commenced, and De Jesumaria was found guilty on May 29, 2015.
    2
    Second, the district court did not commit plain error that affected De
    Jesumaria’s substantial rights when it instructed the parties and witnesses to refer
    to the alleged victim as “B.D.” De Jesumaria argues, again for the first time, in his
    Motion for Bond Pending Appeal, that the court’s instruction to use B.D.’s initials
    allowed the jury to view her as a victim and increased her testimony’s credibility.
    When a defendant fails to object to a court’s instruction during the trial, this Court
    reviews the instruction using the plain error standard, and the burden of persuasion
    is on the appellant to demonstrate that this alleged error “affected substantial
    rights.” United States v. Olano, 
    507 U.S. 725
    , 734–35 (1993) (“Normally . . . the
    defendant must make a specific showing of prejudice to satisfy the ‘affecting
    substantial rights’ prong of Rule 52(b).”); Fed. R. Crim. Pro. 52(b). Here, it cannot
    be said that the use of B.D.’s initials increased her credibility. We find that the
    district court’s instruction, and the resulting use of the alleged victim’s initials
    during the proceedings, even if it was error, was not so prejudicial as to “affect[ ]
    the outcome of the district court proceedings.” Olano, 
    507 U.S. at 734
    .
    Finally, De Jesumaria has failed to demonstrate that the Government’s use
    of its peremptory strikes was for a discriminatory purpose. See Batson v.
    Kentucky, 
    476 U.S. 79
    , 93 (1986). At the third step of the Batson analysis, “the
    trial court must determine whether the defendant has carried his burden of proving
    3
    purposeful discrimination,” which is a finding of fact reviewed for clear error.
    Hernandez v. New York, 
    500 U.S. 352
    , 359, 363–64 (1991). A purposeful
    discrimination determination is based, in large measure, on the trial court’s
    assessment of prosecutorial credibility, which is a factual finding entitled to great
    deference. Williams v. Rhoades, 
    354 F.3d 1101
    , 1109 (9th Cir. 2004). Here, the
    district court considered De Jesumaria’s challenge to the prosecution’s use of its
    peremptory strikes; the demeanor of the potential jurors themselves; as well as the
    prosecution’s proffered race-neutral reasons in questioning Juror 3's ability to
    follow the evidence, Juror 6's ability to understand the witnesses, and Juror 8's
    potential distraction from the trial. In light of this information and the absence of
    evidence undermining the prosecution’s race-neutral justifications, the district
    court’s conclusion that the prosecution’s explanations were not “pretexts invented
    to hide purposeful discrimination” was not in clear error. Green v. LaMarque, 
    532 F.3d 1028
    , 1030 (9th Cir. 2008); cf. McClain v. Prunty, 
    217 F.3d 1209
    , 1222 (9th
    Cir. 2000).
    AFFIRMED.
    4