United States v. Marcelo De Jesumaria

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NOT FOR PUBLICATION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.
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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
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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.
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