UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, Nos. 19-10065 Plaintiff-Appellee, 19-10420

v. D.C. No. 2:17-cr-00209- RODNEY FLUCAS, AKA Rodney J. KJM-1 Flucas, AKA Rodney Rochea Flucas, AKA Rodney Rochen Flucas, OPINION Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Kimberly J. Mueller, Chief District Judge, Presiding

Argued and Submitted September 3, 2021 San Francisco, California

Filed January 21, 2022 Before: Mary M. Schroeder, Johnnie B. Rawlinson, and Jay S. Bybee, Circuit Judges.

Opinion by Judge Rawlinson; Concurrence by Judge Schroeder; Dissent by Judge Bybee 2 UNITED STATES V. FLUCAS

SUMMARY*

Criminal

The panel affirmed convictions for transportation of a minor with intent to engage in criminal sexual activity in violation of 18 U.S.C. § 2423(a), and transportation of an individual with intent to engage in criminal sexual activity in violation of 18 U.S.C. § 2421(a).

The defendant contended that he is entitled to a new trial because the district court erroneously instructed the jury concerning the requisite intent for transporting an individual or minor for criminal sexual activity in violation of §§ 2421 or 2423. He maintained that the district court improperly instructed the jury that he could be convicted if criminal sexual activity was a motivating purpose of the transportation of an individual, and that the district court was required to instruct the jury that criminal sexual activity must be the dominant purpose in order to establish the requisite intent.

The panel held that the district court did not abuse its discretion in instructing the jury, consistent with this court’s precedent, that the government was required to prove beyond a reasonable doubt that a dominant, significant, or motivating purpose of the transportation of the defendant’s victims was to engage in criminal sexual activity. The panel wrote that the non-retroactive amendment to 18 U.S.C. § 2423(b), a statute under which the defendant was not charged, does not undermine the consistent precedent throughout the circuits

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. FLUCAS 3 rejecting the “dominant purpose” mens rea advocated by the defendant.

The panel addressed the defendant’s additional challenges to his convictions in a concurrently filed memorandum disposition.

Concurring, Judge Schroeder wrote to underscore key points that in her view undermine the dissent: (1) the dissent views as binding language the Supreme Court used more than seventy years ago in a case that raised different issues; (2) courts have routinely treated “motivating” and “significant” as interchangeable; and (3) one cannot assume that the addition of “or motivating” to the instruction was responsible for a second jury convicting after the first jury did not.

Dissenting, Judge Bybee wrote that no court has considered whether “a motivating purpose” is different from “a dominating or significant purpose,” and that in his view, those terms are not synonymous. He wrote that the instruction lowered the government’s burden of proof, contrary to the holding in Mortensen v. United States, 322 U.S. 309 (1944), and this court’s Mann Act decisions; and that the error is not harmless beyond a reasonable doubt. 4 UNITED STATES V. FLUCAS

COUNSEL Brian C. McComas (argued), Law Office of B.C. McComas LLP, San Franc