1 14-4430-cr United States v. Rodriguez 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 DA TABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CI TING 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 8 th day of June, two thousand sixteen.
Present: PETER W. HALL, GERARD E. LYNCH, DENNY CHIN, Circuit Judges.

____________________________________________________ U NITED S TATES OF A MERICA , Appellee , v. No. 14-4430-cr
R APHAEL R ODRIGUEZ , Defendant-Appellant.

___________________________________________________ For Appellee: M ARGARET E. G ANDY (Emily Berger, of counsel), Assistant United States Attorneys, for Robert L. Capers, United States Attorney for the Eastern District of New York, Brooklyn, NY

. For Defendant-Appellant: K ELLEY J. S HARKEY , Brooklyn, NY.

____________________________________________________ Appeal from a judgment of the United States District Court for the Eastern District of New York (Korman, J .).2 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment is AFFIRMED

. Defendant-Appellant Raphael Rodriguez was c onvicted by a jury of assault within the special maritime and territorial jurisdiction of the United States in violation of 18 U.S.C. § 113(a)(6). Rodriguez, formerly an inmate at the Metropolitan Dete ntion Center in Brooklyn, punched fellow inmate Brian Bartels in the face a single time. Bartels fell backwards and struck his head on the floor; he later di ed of his injuries. On June 19, 2014, Rodriguez was sentenced to seven years’ imprisonment, to r un consecutively to the 235-month sentence he is serving for a separate offense. On appeal, Rodriguez contends that (1) the district court abused its discretion by precluding the defense expert, Dr. Sasha Bardey, from testifying regarding Rodriguez’s hearsay account of the assault; (2) the dist rict court’s jury instruction on self-defense was confusing to the jury and improperly shifted th e burden of proof to the defe nse; and (3) the sentence was excessively harsh. 1. Exclusion of Rodriguez’s Hearsay Statem ents through the Expert’s Testimony Rodriguez asserts the court a bused its discretion by precludin g Dr. Bardey from testifying that, in forming his expert opinion, he relied on Rodriguez’s statemen ts that, prior to the incident, (1) Bartels was clenching his fist s and (2) Rodriguez felt threatene d. Rodriguez argues that these statements were central to his claim at trial that he acted in self-defense. We review for abuse of discretion the district court’s rulings on admissibility of evidence. United States v. Jones , 299 F.3d 103, 112 (2d Cir. 2002). “Because the district court has ‘broad discretion regarding the admission of expert testimony,’” we will affirm the district court’s ruling “unless it was ‘manifestly erroneous.’” United States v. Dukagjini , 326 F.3d 45, 52 (2d Cir. 2003) (quoting United States v. Locascio , 6 F.3d 924, 936 (2d Cir.1993)). An expert witness may offer opinion3 testimony to the jury if his “specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” Fed. R. Evid. 702(a). An expert may base his opinion on facts that are otherwise inadmissible, such as hearsay that does not fa ll within a recognized exception, if “experts in the partic ular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject.” Fed. R. Ev id. 703. The expert may disclose those facts to the jury “only if their probative value in help ing the jury evaluate the opinion substantially outweighs their prejudicial effect.” Id. The district court did not abuse its discre tion by excluding the two challenged hearsay statements. The court determined that Rodrigue z’s statements to Dr. Bardey, which were made in preparation for trial, were unreliable because he was an interested witness with “a clear motive to lie.” G.A. 22. Further, the statements were unswor n and there was no opportunity for crossexamination because Rodriguez did not testify at trial. Although an expert may “rely on hearsay evidence for the purposes of rendering an opini on based on his expertise, . . . there is a significant risk that, if the witness digresses from his expertise, he will be improperly relying upon hearsay evidence and may conve y hearsay to the jury.” Dukagjini , 326 F.3d at 59. It is not clear what if anything the proffered hearsay st atements about the even ts surrounding the assault on Bartels would add to the jury’s understanding of Dr. Bardey’s expert opinion that Rodriguez suffered from Post-Traumatic Stress Disorder stemming from traumatic incidents in his childhood. The district court recogn ized that the jury would rely on the hearsay testimony for its truth and the expert would be “repeating hear say evidence without applying any expertise whatsoever, thereby enabling the [defendant] to circumvent the rules prohibiting hearsay.” Id. Rodriguez asserts that his hearsay statements to Dr. Bardey were nonetheless admissible because they were corroborated by his own, almost identical, statements to a Bureau of Prisons (“BOP”) investigator soon after the incident. Th e court did not abuse its discretion in concluding4 that these earlier statements were equally unre liable, as Rodriguez knew he was speaking to a criminal investigator and thus had a “motive not to testify trut hfully.” J.A. 55. Rodriguez further contends that the interests of justice favored admission of the statements under Rule 703 because the government did not indict him until mo re than three years after Bartels’s death and the BOP failed to preserve surveillance footage of the hours leading up the offense, hampering his ability to put on a defense. The record make s clear, however, that the district court gave thoughtful consideration to the equities by admitting a number of other hearsay statements it had been inclined to exclude. Through Dr. Ba rdey’s testimony, the jury heard Rodriguez’s statements that (1) he was arguing with Ba rtels over a gambling debt, (2) Bartels was confrontational, and (3 ) during their exchange, Bartels left to change into sneakers, which Rodriguez interpreted to mean he was willing to fight. Dr. Bardey was also permitted to testify as to hearsay statements from other witnesses, including a BOP officer and Bartels’s cellmate, who corroborated Rodr iguez’s statements. 1
2. Jury Instruction on Self-Defense Rodriguez also contends that th e district court erroneously in structed the jury on his selfdefense claim. Since Rodriguez did not object below, we review his claim for plain error. United States v. Tannenbaum , 934 F.2d 8, 14 (2d Cir. 1991). “O bjectionable instructions are considered in the context of the entire jury ch arge, and reversal is required where, based on a review of the record as a whole, the error was prejudicial or th e charge was highly confusing.” United States v. Kopstein , 759 F.3d 168, 172 (2d Cir. 2014) (internal quotation marks omitted).

1 In any event, Rodriguez was not materially prej udiced by the district c ourt’s exclusion of his hearsay statements. Dr. Bardey conveyed to th e jury the essence of Rodriguez’s statements— that he felt threatened by Bartels—stating: “A s a result of the gambling debt, the words that occurred between them, the situation as Mr. Rodriguez understood it to be, led him to feel acutely threatened.” G.A. 80.5 During the jury charge, the district court read the instructions to the jury and provided copies of the written instructions for the jury to follow along and use in its deliberations. Rodriguez does not challenge the written instructi ons; rather, he asserts that in the court’s oral charge, “the burden of proof was initially charge d correctly, but the instruction was immediately undermined by an inconsistent instruction.” Appe llant’s Br. 28. In its oral charge, the district court misread one sentence of the jury charge, stating: The Government is required to prove beyond a reasonable doubt that the defendant was not justified. It is thus an element of the charged offense that the defendant was not justified. As a result, if you find the defendant has failed to prove beyond a reasonable doubt that the defendant was not justified, then you must find the defendant not guilty. J.A. 295 (emphasis added). As Rodriguez concedes, however, the written charge contained the proper legal standard: The Government is required to prove beyond a reasonable doubt that the defendant was not justified. It is thus an element of the charged offense that the defendant was not justified. As a result, if you find that the Government has failed to prove beyond a reasonable doubt that the defenda nt was not justified, then you must find the defenda nt not guilty. J.A. 304 (emphasis added). Although the court made an erro r in its reading of the jury instructions, we cannot say that the error was “plain and aff ect[ed] [his] substantial rights.” United States v. Goldstein , 442 F.3d 777, 781 (2d Cir. 2006). Rodrig uez relies on our decision in Kopstein , but we vacated the defendant’s conviction in that case because the “initial jury instru ctions [were] faulty, the jury expresse[d] confusion, and the court’s supplementa l instruction fail[ed] to alleviate the jury’s concerns or only add[ed] to th e already-existing confusion.” Kopstein , 759 F.3d at 172. In this case, there is no indication that the jurors we re confused by the court’s misreading of the instruction. The jury was able to follow along from the correct written instructions during the6 oral charge, and it had access to t hose written instructions during its deliberations. Both the oral charge and written instructions emphasized, mo reover, that the governme nt retained the burden of proof at all times. These safeguards mitigat ed any risk of confusion, and the error did not affect Rodriguez’s substantial rights. 3. Sentencing Issues Finally, Rodriguez argues that his sentence of seven years, to run consecutively to the sentence he is already serving, is unnecessarily harsh and thus substantively unreasonable. “A sentencing judge has very wide latitude to decide the proper degree of punishment for an individual offender and a particular crime.” United States v. Cavera , 550 F.3d 180, 188 (2d Cir. 2008) (en banc). We will “set aside a district court’s substantive determination only in exceptional cases where the trial court’s decisi on ‘cannot be located within the range of permissible decisions.’” Id . at 189 (emphasis omitted) (quoting United States v. Rigas , 490 F.3d 208, 238 (2d Cir. 2007)). We conclude that th e sentence was substantively reasonable. Rodriguez contends that the di strict did not adequately cons ider the tragic conditions of his childhood, which resulted in se vere, life-long psychiatric problem s. He further argues that the excessively harsh conditions of his confinement at ADX Fl orence, a Super Max prison for inmates in administrative segregation, warrants a lesser sentence. See United States v. Carty , 264 F.3d 191, 196 (2d Cir. 2001) (recognizing that ha rsh conditions of imprisonment can provide basis for sentencing departure). Rodriguez also emphasizes the fact thatBartels’s death, while unfortunate, was effectively an ac cident caused by his fall to th e concrete floor. While these factors warrant consideration in R odriguez’s favor, the record indica tes that the district court not only thoroughly considered them, but it relied on these factors as the basis for imposing a sentence below the Guidelines range of 100 to 120 months. In light of the district court’s7 thoughtful consideration of the § 3553(a) factor s, we cannot say that the sentence “was shockingly high, . . . or otherwise unsupportable as a matter of law.” Rigas , 583 F.3d at 123. For these reasons, the ju dgment is AFFIRMED.
FOR THE COURT: CATHERINE O’HAGAN WOLFE, CLERK