United States v. Maldonado-Hernandez , 70 F. App'x 772 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
July 21, 2003
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 02-10085
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-
Appellee,
versus
JUAN MALDONADO-HERNANDEZ;
MIGUEL MARTINEZ-LOPEZ,
Defendants-
Appellants.
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Appeals from the United States District Court
for the Northern District of Texas
USDC No. 6:01-CR-36-C
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Before JONES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Juan Maldonado-Hernandez and Miguel Martinez-Lopez appeal their jury convictions for
assault on a correctional officer assisting officers and employees of the United States under 18 U.S.C.
§§ 111(a)(1) and (b) and 1114. Martinez argues that the evidence adduced at trial was insufficient
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
to support his convictions because the testimony of one of the correctional officers cannot be
reconciled with the identification of him by the victim.
The victim, who knew Martinez from the dormitory where Martinez was housed, positively
identified Martinez as one of the inmates who kicked him. The jury chose to believe the victim’s
testimony, and we do not second-guess such a credibility determination. See United States v. Green,
293 F.3d 886, 895 (5th Cir. 2002), cert. denied, 123 S. Ct. 1783 (2003). The victim did not assert
facts that he could not have observed or events that defy the laws of nature. See United States v.
Gadison, 8 F.3d 186, 190 (5th Cir. 1993). Martinez has not shown that the j ury’s verdict was a
manifest miscarriage of justice. See United States v. Galvan, 949 F.2d 777, 783 (5th Cir. 1991).
Maldonado argues that the indictment failed to allege an offense in violation of federal law
because it failed to allege that the person whom the victim was assisting was engaged in the discharge
of official duties, an essential element of the offense. The indictment alleged all of the elements of
the crimes charged. See United States v. Jacquez-Beltran, 326 F.3d 661, 663 (5th Cir. 2003).
Maldonado has identified no plain error. See United States v. Cotton, 535 U.S. 625, 631-32 (2002).
Although Maldonado concedes that he committed the assault, he argues that the evidence
is insufficient to support the convictions because employees of a private detention center should not
be considered to be assisting federal officers unless they are acting in cooperation with, under the
direct control of, and in the physical presence of federal officers. We have declined to add to the
statutory elements of 18 U.S.C. §§ 111 and 1114 “by requiring that a federal agent be physically
present with the victim at the time of the assault.” Jacquez-Beltran, 326 F.3d at 663. Martinez has
not shown that the jury’s verdict was a manifest miscarriage of justice. See Galvan, 949 F.2d at 783.
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Finally, although Maldonado concedes that his argument lacks merit, Maldonado contends
that his separate convictions and sentences violated the Double Jeopardy Clause because, even though
the sentences are concurrent, the entry of the multiple convictions and sentences impermissibly
punished him three times for the same offense. Because Maldonado did not object to the indictment
in the district court, his argument as to the multiple convictions is waived. See id. at 781.
Maldonado cannot challenge his sentences because they are concurrent, and his argument on this
issue is foreclosed. Id. The judgments of the district court are AFFIRMED.
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