                                                                           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                           NOT FOR PUBLICATION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
