United States of America,

Plaintiff—Appellee,

versus Marco Antonio Abundiz,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 3:20-CR-2409-1 ______________________________ Before Higginbotham, Higginson, and Duncan, Circuit Judges. Patrick E. Higginbotham, Circuit Judge: Convicted under 18 U.S.C. § 2241(c) and sentenced to life imprisonment for sexually abusing his six-year-old niece, K.Z., Marco Antonio Abundiz argues the district court erred by: (1) denying his right to confrontation by allowing K.Z. to testify via CCTV; (2) failing to make the findings required under 18 U.S.C § 3509 before allowing K.Z. to testify via CCTV; (3) admitting evidence of a previous sexual assault; (4) admitting evidence that he possessed child pornography; and (5) instructing the jury regarding evidence admitted under Federal Rules of Evidence 413 and 414. We AFFIRM. No. 22-50697

I. In 2020, six-year-old K.Z. told her mother, Adriana Zapata, that Abundiz (K.Z.’s uncle and Adriana’s brother) had been sexually abusing her while babysitting her in their home on the Fort Bliss Army Base in El Paso, Texas. According to testimony at trial, K.Z. reported to her parents and multiple medical professionals that on multiple occasions, Abundiz would sexually molest her. Further investigation revealed that Abundiz previously sexually abused his minor cousin, who testified that Abundiz had sex with her numerous times over an eight-year time span before she was sixteen.1 Abundiz was charged with one count of aggravated sexual abuse of a minor under the age of 12 years in violation of 18 U.S.C. § 2241(c). A. K.Z. Testimony 1. CCTV Before trial, the Government moved to allow K.Z. to testify via CCTV outside the personal presence of Abundiz and the jury, in accordance with 18 U.S.C. § 3509, the federal statute defining child victims’ rights when they are required to testify at trial.2 At a March 28, 2022 hearing on the motion, the Government called Dr. Lubit, an expert in forensic, child, and adolescent

_____________________ 1 Abundiz was never prosecuted for this conduct. 2 Prior to the hearing, the district court also issued a written order explaining the law under 18 U.S.C. § 3509 and establishing the relevant standards for the hearing. Abundiz notes that the Government’s initial request for CCTV testimony had a “fatal failure” in that it did not request a hearing despite the fact that “every single circuit court that considered this issue [child victims testifying under 18 U.S.C. § 3509] required that a hearing be held.” The Fifth Circuit has not addressed whether hearings are necessary and need not reach this issue because the district court cured any error by holding a hearing.

2 No. 22-50697

psychiatry.3 Lubit began by providing general testimony about child victims who testify in the presence of their abusers. He testified that, in his opinion and based on scientific literature, child victims who must “be confronted by or see” their abusers are “re-traumatize[d]” by the experience as it can be an “immense traumatic trigger causing a great deal of fear, anxiety, and distress.” Lubit further explained that forcing a child victim to be in the same space as her abuser causes “betrayal trauma,” which may make the child distrust society, the police, and the legal system, “damag[ing] [their] ability to trust adults in general.” Turning to K.Z., Lubit testified th