United States of America v. Roy Dominic Robles

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROY DOMINIC ROBLES,
Defendant-Appellant.
No. 21-10341
D.C. No.
3:19-cr-08235-SMB-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Susan M. Brnovich, District Judge, Presiding
Argued and Submitted November 17, 2022
Phoenix, Arizona
Before: BYBEE, OWENS, and COLLINS, Circuit Judges.
Roy Robles appeals from his jury conviction for two counts of Sexual Abuse
of a Minor, in violation of 18 U.S.C. §§ 2243(a), 2246(2), and 7; one count of
Abusive Sexual Contact of a Minor, in violation of 18 U.S.C. §§ 2244(a)(3),
2246(3), and 7; and two counts of Abusive Sexual Contact without Permission, in
violation of 18 U.S.C. §§ 2244(b), 2246(3), and 7. Robles argues that the district
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
DEC 13 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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court erred in granting the motion in limine of the United States (“Government”) to
exclude the testimony of defense witness Jay Gates. “We review a district court’s
evidentiary rulings for abuse of discretion.” United States v. Stinson, 647 F.3d
1196, 1210 (9th Cir. 2011). As the parties are familiar with the facts, we do not
recount them here. We affirm.
The district court granted the Government’s motion to exclude Gates’s
testimony because it was hearsay—which Robles concedes—and Robles failed to
establish that this hearsay would be admissible for impeachment as a prior
inconsistent statement. As the district court pointed out, defense counsel did not
actually know whether Gates could testify to anything that would be inconsistent
with the minor victim’s proposed or actual testimony. Given that lack of
foundation, the district court did not abuse its discretion by excluding testimony
that Robles, the proponent, never established would be admissible. See United
States v. Hale, 422 U.S. 171, 176 (1975) (noting that before admitting a prior
inconsistent statement of a witness for impeachment, “the court must be persuaded
that the statements are indeed inconsistent”).
Robles asserts that the district court should have reserved ruling on the
Government’s motion in limine or ordered a hearing on the scope of Gates’s
assertion of the Fifth Amendment privilege against self-incrimination. Yet the
court explicitly stated that it was granting the motion without prejudice based on

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the motion’s contents (which did not raise self-incrimination) and that if defense
counsel actually produced Gates as a witness, the court “could have a hearing
outside the presence of the jury.”
After the minor victim testified, Robles could have definitively established
whether Gates could offer a prior inconsistent statement to impeach her. Robles,
however, never enforced a subpoena against Gates, did not accept the district
court’s invitation to have a hearing on Gates’s anticipated testimony, and never
renewed his objection to Gates’s exclusion. Robles’s choice not to pursue Gates’s
testimony despite ample opportunity does not amount to an abuse of discretion by
the district court. See Selam v. Warm Springs Tribal Corr. Facility, 134 F.3d 948,
952 (9th Cir. 1998) (“Where the defendant himself knows that he may subpoena
witnesses but elects not to, we have found no violation of the defendant’s right to
compulsory process.”).
AFFIRMED.

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