12‐5095‐cr USA v. Maldonado

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 28th day of March, two thousand fourteen.

PRESENT: RALPH K. WINTER, RICHARD C. WESLEY, SUSAN L. CARNEY, Circuit Judges.

______________________

UNITED STATES OF AMERICA,

Appellee,

‐v.‐ No. 12‐5095‐cr

ANTONIO GUERRERO AKA Tony, OMAR FLORES, JOHNNY CEDENO,

Defendants,

1 EDWIN MALDONADO,

Defendant‐Appellant. ______________________

FOR APPELLANT: JANE FISHER‐BYRIALSEN, Fisher, Byrialsen & Kreizer PLLC, New York, NY.

FOR APPELLEE: LAURIE A. KORENBAUM, Jennifer G. Rodgers, AUSA for Preet Bharara, U.S. Attorney for the Southern District of New York, New York, NY.

Appeal from the United States District Court for the Southern District of

New York (Robert W. Sweet, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED AND DECREED that the judgment is AFFIRMED.

Defendant‐Appellant Edwin Maldonado appeals from a judgment of

conviction and sentence entered on December 14, 2012, in the United States

District Court for the Southern District of New York (Robert W. Sweet, Judge)

following a jury trial. The jury convicted Maldonado of the intentional murder

of Leonard Overman committed with the use of a firearm, conspiracy to commit

the murder‐for‐hire of Genero Rodriguez, which resulted in the death of Carmen

Diaz, and other crimes related to Diaz’s murder. On appeal, Maldonado argues

that the government impermissibly vouched for one of its witnesses on rebuttal,

thus depriving him of a fair trial. He also argues that the district court erred

2 under the standards set forth in Miller v. Alabama, in sentencing him to life

imprisonment, as he was a minor at the time he committed the murders.

(2012). We assume the parties’ familiarity with the underlying facts, the

procedural history, and the issues for review.1

As this Court has repeatedly stated, “‘[t]he government has broad latitude

in the inferences it may reasonably suggest to the jury during summation.’”

United States v. Zackson,

(2d Cir. 1993) (quoting United States v.

Casamento,

(2d Cir. 1989)). Accordingly, a defendant

asserting that a prosecutor’s remarks warrant a new trial “face[s] a heavy

burden, because the misconduct alleged must be so severe and significant as to

result in the denial of [his] right[ ] to a fair trial.” United States v. Locascio,

(2d Cir. 1993). In evaluating whether a defendant has met this heavy

burden, the Court considers three factors: “(1) the severity of the misconduct; (2)

the measures adopted to cure it; and (3) the certainty of conviction in the absence

of the misconduct.” United States v. Ferguson,

(2d Cir. 2011)

(internal quotation marks omitted); accord United States v. Spinelli,

(2d Cir. 2009). A defendant is entitled to relief only if he can show “that the

1 We review conclusions of law de novo. In re Terrorist Bombings of U.S. Embassies in East Africa,

(2d Cir. 2008).

3 comment, when viewed against the entire argument to the jury, and in the

context of the entire trial, was so severe and significant as to have substantially

prejudiced him.” United States v. Farhane,

(2d Cir. 2011)

(internal quotation marks and citations omitted).

Here, Maldonado argues that the prosecution’s statements were

misconduct and that the government was impermissibly “vouching” for

witnesses. But, under Spinelli, the government’s statements, even if considered

misconduct, were harmless when tempered by the district court’s explicit and

multiple jury instructions to correct the error, and when viewed in light of the

overwhelming evidence against Maldonado.

With respect to Maldonado’s sentencing challenge, we review sentences

under an abuse of discretion standard for procedural and substantive

reasonableness. United States v. Cavera,

(2d Cir. 2008) (en banc).

Though mandatory life imprisonment sentences for minors are unconstitutional,

there is no per se foreclosure of a life sentence without the possibility of parole for

a juvenile convicted of murder. See Miller,

. The district court

properly considered all of the Miller factors; Maldonado’s repeated history of

violent aggression after the age of majority, including a murder and attempted

4 murder; and other mitigating factors under

(a) in sentencing

Maldonado.

We have considered all of Defendant‐Appellant’s remaining arguments

and find them to be without merit. For the reasons stated above, the judgment of

the district court is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

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