     09-3262-cr
     United States v. Monroe


                          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 .


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 28 th day of September, two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                ROBERT A. KATZMANN,
 9                DEBRA A. LIVINGSTON,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Appellee,
15
16                    -v.-                                               09-3262-cr
17
18       EDWARD MONROE,
19                Defendant-Appellant.
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR APPELLANT:                         LISA A. PEEBLES, First Assistant
23                                              Federal Public Defender (James
24                                              P. Egan, Research and Writing
25                                              Specialist, on the brief), for
26                                              Alexander Bunin, Federal Public
27                                              Defender, Syracuse, New York.
28
29       FOR APPELLEE:                          BRENDA K. SANNES, Assistant
30                                              United States Attorney (Kevin P.
 1                              Dooley, Assistant United States
 2                              Attorney, on the brief), for
 3                              Richard S. Hartunian, United
 4                              States Attorney for the Northern
 5                              District of New York, Syracuse,
 6                              New York.
 7
 8        Appeal from a judgment of the United States District
 9   Court for the Northern District of New York (McAvoy, J.).
10
11        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
12   AND DECREED that the judgment of the district court be
13   AFFIRMED.
14
15        Edward Monroe appeals his conviction, arguing that the
16   district court abused its discretion in admitting evidence
17   of his prior conviction for possessing child pornography.
18   We assume the parties’ familiarity with the underlying
19   facts, the procedural history, and the issues presented for
20   review.
21
22        This Court accords “considerable deference to a
23   district court’s decision to admit . . . evidence” pursuant
24   to Federal Rule of Evidence 404(b), United States v.
25   Paulino, 445 F.3d 211, 221 (2d Cir. 2006), and will reverse
26   a district court’s evidentiary ruling only if it identifies
27   an abuse of discretion, United States v. Mercado, 573 F.3d
28   138, 141 (2d Cir. 2009). When we review a district court’s
29   “judgment regarding the admissibility of a particular piece
30   of evidence under [Federal Rule of Evidence 403], we
31   generally maximize its probative value and minimize its
32   prejudicial effect.” United States v. Downing, 297 F.3d 52,
33   59 (2d Cir. 2002) (internal quotation marks and brackets
34   omitted).
35
36        Our Circuit “follows the inclusionary approach to other
37   crimes, wrongs, or acts evidence.” United States v.
38   Carlton, 534 F.3d 97, 101 (2d Cir. 2008) (internal quotation
39   marks omitted). Under this approach, evidence of a prior
40   crime “is admissible unless it is introduced for the sole
41   purpose of showing the defendant’s bad character, or unless
42   it is overly prejudicial[,] . . . or not relevant.” Id.
43
44        Evidence of Monroe’s prior conviction for possessing
45   child pornography was admissible because it was “offered for
46   a proper purpose,” it was relevant and of substantial
47   probative value, and the district court provided an

                                  2
 1   appropriate limiting instruction to the jury. United States
 2   v. McCallum, 584 F.3d 471, 475 (2d Cir. 2009) (quoting
 3   Huddleston v. United States, 485 U.S. 681, 691 (1988)).
 4   Contrary to Monroe’s assertion, his offer to “stand mute”
 5   was “not an adequate substitute for the evidence” of his
 6   prior crime. United States v. Polouizzi, 564 F.3d 142, 153
 7   (2d Cir. 2009).
 8
 9        Finding no merit in any of the arguments presented by
10   Monroe on appeal, we hereby AFFIRM the judgment of the
11   district court.
12
13
14                              FOR THE COURT:
15                              CATHERINE O’HAGAN WOLFE, CLERK
16
17
18




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