                              NOT FOR PUBLICATION                           FILED
                       UNITED STATES COURT OF APPEALS                        JUN 1 2015
                                                                        MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                          No. 14-30134

               Plaintiff - Appellee,                D.C. No. 4:13-cr-00043-BMM-1

    v.
                                                    MEMORANDUM*
 MICHAEL CONNELLY, Sr.,

               Defendant - Appellant.

                      Appeal from the United States District Court
                              for the District of Montana
                       Brian M. Morris, District Judge, Presiding

                           Argued and Submitted May 8, 2015
                                   Portland, Oregon

Before: W. FLETCHER and HURWITZ, Circuit Judges, and BAYLSON,** Senior
District Judge.
         Michael Connelly, Sr., a former tribal police officer, was convicted, following

a jury trial, of deprivation of rights under color of law, in violation of 18 U.S.C.

§ 242, and for making a false statement to the FBI in violation of 18 U.S.C. § 1001.



         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
         **
             The Honorable Michael M. Baylson, Senior District Judge for the U.S.
District Court for the Eastern District of Pennsylvania, sitting by designation.
The jury acquitted Connelly of sexual abuse in violation of 18 U.S.C. §§ 2242(1)

and 1153(a). Connelly was sentenced to 24 months imprisonment and three years

supervised release. On appeal, Connelly contends (i) the district court abused its

discretion in precluding him from impeaching the victim with evidence of her

convictions that were more than ten years old; (ii) there was insufficient evidence to

convict him of the false statement charge; and (iii) the jury instructions improperly

reduced the government’s burden of proof on the false statement charge. We

affirm.1

      1. As the parties are familiar with the facts, we only briefly summarize them

here. On September 1, 2012, Connelly, a police officer with the Blackfeet Law

Enforcement Services who was on duty and in uniform, gave a ride in his unmarked

patrol car to a woman, E.J.R.C., in Browning, Montana. E.J.R.C. testified that

Connelly drove her to secluded area, began kissing her, and coerced her to perform

oral sex by threatening her with jail if she did not. E.J.R.C. testified that she did

not believe Connelly was joking, was fearful, decided performing oral sex was better

than going to jail, and would not have performed oral sex but for Connelly’s position

as a police officer and his threat to send her to jail.

      2. Approximately three hours after the incident, FBI Agent Brian Kimball


1
 The district court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291.

                                            2
contacted Connelly, who voluntarily agreed to an interview. Connelly told Agent

Kimball the sexual encounter was consensual and denied threatening E.J.R.C. with

jail if she refused to perform oral sex:

             Agent Kimball: At no point in time did you ever say,
             “You can do this or you can go to jail.”

             Connelly: No. I did not.

                                         * * *
             Kimball: At no point and time was it ever communicated
             to her that . . . she had two options? One’s to provide oral
             sex, and the other was to go to jail.

             Connelly: No. That is not true.

      3. On December 4, 2012, approximately three months after the incident,

Connelly voluntarily participated in an interview conducted by FBI Agent Stacey

Smiedala. During this interview, Connelly admitted that he told E.J.R.C. “you

could maybe go to jail if you don’t give me a blow job,” but he claimed he was

joking.

      4. We reject Connelly’s argument that the district court abused its discretion

when it barred him from impeaching E.J.R.C. with four convictions for assault,

burglary, and possession of a controlled substance that were more than ten years old.

We review the district court’s decision to admit or exclude evidence for an abuse of

discretion. United States v. Santini, 656 F.3d 1075, 1077 (9th Cir. 2011) (per

curiam).


                                           3
      a. Federal Rule of Evidence 609(b) bars the admission of convictions that are

more than ten years old, except if the probative value of such a conviction, supported

by specific facts and circumstances, substantially outweighs its prejudicial effect,

and the proponent gives advance written notice. “[C]onvictions over 10 years old

will be admitted very rarely and only in exceptional circumstances.” Fed. R. Evid.

609(b) advisory committee’s note.

      b. Connelly contends that the district court should have permitted him to

introduce the excluded convictions because they were directly relevant to E.J.R.C.’s

credibility, a crucial issue at trial because E.J.R.C. and Connelly were the only

witnesses to the incident. But we have previously rejected precisely this argument.

See United States v. Bensimon, 172 F.3d 1121, 1126–27 (9th Cir. 1999) (“[T]he

probative value of a prior conviction may not be determined by how important the

defendant’s credibility is to the opposing party.”). Moreover, the district court

permitted Connelly to impeach E.J.R.C. with three felony convictions for burglary,

robbery, and possession of a controlled substance that fell within Rule 609(b)’s ten-

year window, and E.J.R.C. testified forthrightly about these convictions at trial.

Accordingly, the district court did not abuse its discretion in excluding the older

convictions.2


2
  In excluding the older convictions, the district court concluded that any time
E.J.R.C. spent in confinement due to revocation of supervision imposed in
connection with the older convictions was due to technical violations and did not

                                          4
      5. Connelly’s challenge to the sufficiency of the evidence supporting his

false statement conviction also lacks merit. A conviction under 18 U.S.C. § 1001

requires the government to prove that the defendant “1) made a statement, 2) that

was false, and 3) material, 4) with specific intent, 5) in a matter within the agency’s

jurisdiction.”   United States v. Selby, 557 F.3d 968, 977 (9th Cir. 2009) (per

curiam). We review the evidence in the light most favorable to the prosecution to

determine whether any rational trier of fact could have found the essential elements

of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319

(1979); United States v. Nevils, 598 F.3d 1158, 1161 (9th Cir. 2010) (en banc).

      a. Viewing the evidence in the light most favorable to the prosecution, the

evidence introduced at trial was sufficient to convict Connelly of the false statement

charge. A rational jury could have concluded that (a) E.J.R.C. was truthful when

she testified that Connelly threatened her with jail if she did not perform oral sex;

(b) Connelly, an experienced police officer and former tribal prosecutor, fully

understood the FBI agents’ questions; and (c) Connelly was not credible because his



constitute confinement for the original conviction for purposes of tolling the ten-
year window under Fed. R. Evid. 609(b). See United States v. Wallace, 848 F.2d
1464, 1472–73 (9th Cir. 1988). To the extent that Connelly seeks to challenge the
district court’s calculation of the ten-year period, that argument was waived. See
Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929–30 (9th Cir. 2003)
(holding that issues not argued “specifically and distinctly in a party’s opening brief”
are waived (internal quotation marks and citations omitted)).

                                           5
statements to Agent Kimball and Agent Smiedala about whether he threatened

E.J.R.C. with jail were inconsistent. See, e.g., Selby, 557 F.3d at 978 (holding a

rational jury was entitled to conclude that a government official’s misstatement

regarding her husband’s employment was not an inadvertent mistake).

      b. Moreover, we find no inconsistency between Connelly’s false statement

conviction and his acquittal on the sexual abuse charge. To convict Connelly of the

civil rights offense, the jury was required to find that he abused his position as a law

enforcement officer when he coerced E.J.R.C. to perform oral sex. A rational jury,

having found Connelly guilty of that offense, could also have convicted him of

making a false statement about the incident to the FBI.

      6. We hold that any error in the jury instruction on the “willfulness” element

of the false statement charge was harmless. As there was no objection to the jury

instructions at trial, we review for plain error. United States v. Anderson, 741 F.3d

938, 945 (9th Cir. 2013), cert. denied, 134 S. Ct. 1562 (2014). Under plain error

review, a defendant has the burden of showing (1) an error; (2) that was plain; (3)

that affected defendant’s substantial rights; and (4) that seriously affected the

fairness, integrity or public reputation of judicial proceedings. United States v.

Marcus, 560 U.S. 258, 262 (2010).

      With regard to the willfulness element of the false statement charge, Connelly

contends the district court erred by instructing the jury that the government was not


                                           6
required to prove that Connelly knew his acts or omissions were unlawful. Even if

we assume this jury instruction was plainly erroneous, Connelly’s contention that

the error affected his substantial rights is unpersuasive. Connelly, who served 25

years as a law enforcement officer and spent 14 years as a tribal prosecutor, cannot

credibly maintain that he did not know it was unlawful to make a false statement to

the FBI. See, e.g., United States v. Awad, 551 F.3d 930, 938–41 (9th Cir. 2009).

It is reasonable to believe that the jury’s verdict on the false statement charge would

not have been different had the jury been required to find that Connelly knew his

false statement to the FBI was unlawful. Accordingly, any error was harmless and

did not affect Connelly’s substantial rights or the fairness, integrity, or public

reputation of judicial proceedings.

      AFFIRMED.




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