                                                                            FILED
                    UNITED STATES COURT OF APPEALS                           JAN 17 2013

                                                                         MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                         U .S. C O U R T OF APPE ALS




UNITED STATES OF AMERICA,                          No. 10-10435

              Plaintiff - Appellee,                D.C. No. 2:05-cr-00360-JAM-1
                                                   Eastern District of California,
  v.                                               Sacramento

JAMES THOMAS FLOCKER,
                                                   ORDER
              Defendant - Appellant.



Before: HAWKINS, GOULD, and MURGUIA Circuit Judges.

       Appellant’s Petition for Panel Rehearing and Suggestion for Rehearing En Banc

is granted in part with respect to the drawing of a replacement judge after Judge Betty

Fletcher’s death. Judge Gould having been drawn to replace Judge Fletcher, we

withdraw the previously-filed Memorandum disposition dated November 5, 2012, and

file a Memorandum disposition concurrently with this Order. The remainder of the

petition is denied without prejudice to renewal.
                                                                            FILED
                            NOT FOR PUBLICATION                              JAN 17 2013

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-10435

              Plaintiff - Appellee,              D.C. No. 2:05-cr-00360-JAM-1

  v.
                                                 MEMORANDUM *
JAMES THOMAS FLOCKER,

              Defendant - Appellant.



                    Appeal from the United States District Court
                        for the Eastern District of California
                     John A. Mendez, District Judge, Presiding

                      Argued and Submitted October 17, 2012
                            San Francisco, California

Before: HAWKINS, GOULD,** and MURGUIA, Circuit Judges.

       James Thomas Flocker (“Flocker”) appeals from his jury trial conviction on

three counts involving possession and distribution of images depicting minors




        *
        This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
       **
        Judge Ronald M. Gould was drawn to replace Judge Betty Binns Fletcher.
Judge Gould has read the briefs, reviewed the record, and listened to the audio
recording of oral argument held on October 17, 2012.
engaged in sexually explicit conduct.1 Flocker alleges a variety of errors, including

evidentiary rulings, instructional error, and insufficiency of the evidence. We affirm.

      The district court did not abuse its discretion in admitting the testimony of the

government computer expert. The court held an evidentiary hearing on the expert’s

qualifications and methodology, and reasonably concluded the requirements of

Daubert2 and Federal Rule of Evidence 702 were satisfied. Although Detective

Partika was not officially California certified at the time he conducted his examination

of Flocker’s computer, he had taken and successfully completed several advanced

courses in forensic examination of data and conducted the computer examination

applying generally accepted methods and software. See United States v. Smith, 520

F.3d 1097, 1105 (9th Cir. 2008); United States v. Abonce-Barrera, 257 F.3d 959, 965

(9th Cir. 2001). Flocker’s counsel did highlight some minor deviations from protocol,

but those go to the weight of the testimony and not its threshold admissibility. See

S.M. v. J.K., 262 F.3d 914, 921 (9th Cir. 2001); United States v. Senchenko, 133 F.3d

1153, 1157 (9th Cir. 1998).




      1
         Specifically, Flocker was convicted of transportation of such images in
violation of 18 U.S.C. § 2252(a)(1), distribution in violation of 18 U.S.C.
§ 2252(a)(2), and possession in violation of 18 U.S.C. § 2252(a)(4)(B).
      2
          Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

                                           2
      Nor did the district court abuse its discretion by admitting evidence of four

prurient stories as other act evidence of Flocker’s intent under Federal Rule of

Evidence 404(b). Flocker’s primary objection is that the jury could have improperly

used the stories to inform its decision of whether the photos of young boys

urinating—naked or partially clothed—were lascivious exhibitions of genitalia,

instead of looking only at the four corners of the photographs. However, the court did

not admit the stories for that purpose. The government was also required to prove that

Flocker knew (at the time he emailed them) that the photos were lascivious and

sexually exploitative of children. These stories—involving urination between adults

and children in a sexual context—were admitted as relevant to Flocker’s knowledge

and intent. Cf. United States v. Curtin, 489 F.3d 935, 948–50 (9th Cir. 2007) (en

banc). The court partially redacted the stories and gave a specific limiting instruction

(both at the time of introduction and again at close of evidence) that they were to be

used only for this limited purpose, and a presumption arises that the jury followed

those instructions. See United States v. Sullivan, 595 F.2d 7, 8–9 (9th Cir. 1979).

      Viewing all evidence in the light most favorable to the government, as we are

required to do,3 there was sufficient evidence to support the interstate commerce

element of Counts 1 and 2. With respect to Count 1 (transportation), there was


      3
          United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc).

                                           3
uncontested testimony that agents investigated the person to whom Flocker sent

emails with photos (from California) and believed the recipient was in Spartanburg,

South Carolina. Supporting Count 2 (distribution) was testimony that a series of

photos involving a young victim (the “Jesse” series) had been taken in Kentucky and

one of the photos Flocker uploaded to Yahoo! involved this same victim and same

background. See United States v. Lynn, 636 F.3d 1127, 1135 (9th Cir. 2011).

      The district court did not plainly err by failing to give a specific unanimity

instruction with respect to each count. The court gave a general unanimity instruction

and the evidence in this case was not so complex or confusing that a more specific

instruction was required, especially because the counts were based on a single upload

(Count 2) and a single email (Count 1). See United States v. Anguiano, 873 F.2d

1314, 1319–20 (9th Cir. 1989); United States v. Ferris, 719 F.2d 1405, 1407 (9th Cir.

1983). Moreover, although the jury needed to unanimously agree that the defendant

committed each element of the crime, it was not required to agree on which of several

possible means the defendant used to commit a particular element. Schad v. Arizona,

501 U.S. 624, 631–32 (1991); see also United States v. Hofus, 598 F.3d 1171,

1176–77 (9th Cir. 2010).

      Finally, there was no plain error in the district court’s instruction on the

interstate commerce element of Count 2. Even assuming error in failing to inform the


                                          4
jury it needed to find the photographs had traveled in interstate commerce before

Flocker uploaded them to the Yahoo! group, any such error did not affect Flocker’s

substantial rights. As noted above, there was uncontested testimony that one of the

pictures in the California-based upload was from the Jesse series which had been

photographed in Kentucky and thus had traveled in interstate commerce before the

upload.

      AFFIRMED.




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