10-2280-cr(L)
United States v. Hector Rivera
                                        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 2nd day of July, two thousand fourteen.

PRESENT:

           GUIDO CALABRESI,
           JOSÉ A. CABRANES,
           CHRISTOPHER F. DRONEY,
                                Circuit Judges.
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UNITED STATES OF AMERICA,

                     Appellee,

                                 -v.-                                                       Nos. 10-2280-cr(Lead)
                                                                                                 12-4005-cr(con)
HECTOR RIVERA,

                      Defendant-Appellant.
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FOR DEFENDANT-APPELLANT:                                                            JAMES M. BRANDEN, Law Office of
                                                                                    James M. Branden, New York, NY.

FOR APPELLEE:                                                                       MARGARET GARNETT (Justin S.
                                                                                    Weddle on the brief), Assistant United
                                                                                    States Attorneys, for Preet Bharara,
                                                                                    United States Attorney for the
                                                                                    Southern District of New York, New
                                                                                    York, NY.


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       Appeal from the May 25, 2010 judgment of the United States District Court for the
Southern District of New York (Harold Baer, Jr., Judge).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the May 25, 2010 judgment of the District Court be AFFIRMED.1

         Defendant Hector Rivera appeals a May 25, 2010 judgment convicting him, after a nine-day
jury trial, on all six counts charged against him in the Indictment. Rivera was sentenced principally
to a term of imprisonment of 384 months and one day. On appeal, Rivera challenges: (1) the
sufficiency of the evidence used to convict him on Counts Three and Five for aiding and abetting
the use of a firearm in connection with two Hobbs Act robberies, in violation of 18 U.S.C. § 924(c)
and 2; (2) the decision of the District Court to disqualify his chosen counsel, over his objection,
based on the existence of potential conflicts; (3) the decision of the District Court to excuse a juror
after having an ex parte conversation with the juror at the request of the parties, but without further
discussing the issue with the parties; and (4) the imposition of a seven-year mandatory minimum
sentence on Count Three for “brandishing” a firearm, where the jury did not make a specific finding
that the firearm was “brandished.” We assume familiarity with the factual and procedural history of
the case, and repeat only those details necessary to resolution of this appeal.
                                                  BACKGROUND
        The charges against Rivera were based on his alleged leadership of a crew responsible for
committing a series of crimes, mainly robberies, between 2002 and 2008. Count One charged
conspiracy to commit robbery and extortion from 2002 to December 2008, in violation of 18 U.S.C.
§ 1951. Count Two charged a November 2005 robbery of a diamond and jewelry business in the
Diamond District called Doppelt & Greenwald (“D&G”), in violation of 18 U.S.C. § 1951 and 2.
Count Four charged a December 2007 hijacking and robbery of a Federal Express (“Fed-Ex”)
tractor-trailer, in violation of 18 U.S.C. § 1951 and 2. Counts Three and Five charged use, carrying,
and possession of a firearm, which was brandished, and aiding and abetting that use, in connection
with the robberies charged in Count Two and Four respectively, in violation of 18 U.S.C. § 924(c)
and 2. Count Six charged a December 2008 attempted hijacking and robbery at gunpoint of a Fed-
Ex tractor-trailer in violation of 18 U.S.C. § 1951 and 2.
        Rivera initially retained Stacey Richman to represent him. The Government requested a
Curcio hearing based on potential conflicts arising out of her representation of Rivera.2 Specifically,

          1 Rivera also appealed Judge Baer’s order denying his request for changes to the trial transcript, and that appeal

was docketed No. 12-4005. Neither his counseled brief nor his pro se submission address this issue. Accordingly, we
find that that appeal has been abandoned.
          2 The purpose of a so-called Curcio hearing is “to determine whether the defendant will knowingly and

intelligently waive his right to conflict-free representation” and requires a district court to “(1) advise the defendant
about potential conflicts; (2) determine whether the defendant understands the risks of those conflicts; and (3) give the


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Stacey shared office space, including stationery and a fax machine, with her father, Murray Richman,
who represented one of Rivera’s co-defendants, Brian Greenwald. In addition, Stacey had
previously represented two other co-defendants, Roni Amrussi and Arkadiy Israilov.
        Judge Baer held a Curcio hearing during which he questioned the Government, Stacey,
Rivera’s (separate) assigned counsel for the Curcio hearing, and Rivera himself. The Government
declined to disclose whether Greenwald, Amrussi or Israilov would act as cooperating witnesses, but
left open that possibility. Rivera represented that he understood the potential conflicts but wished
to proceed with Stacey as his lawyer. After granting a week’s continuance, the District Court ruled
that the conflicts were not waivable and disqualified Stacey Richman from representing Rivera. In
particular, Judge Baer found that Stacey’s ethical obligations to her former clients, who were
potential cooperators, “creates a risk that I cannot allow Mr. Rivera to take.” App’x 96. The fact that
she practiced law in the same office as her father, who represented another co-defendant, was “just
an additional way in which Ms. Richman’s ability to effectively represent Mr. Rivera might be
impaired by her ethical obligations.” Id.
        Trial began on December 2, 2009. On Thursday, December 3, Juror No. 10 informed the
District Court and counsel that he had a “family situation that’s heavily on [his] mind [and] . . . .
keeping [him] a bit unfocused.” App’x 124. Outside the presence of the juror, Judge Baer informed
the parties that he had learned that the juror had found out the night before that his girlfriend was
pregnant. The Government wanted to keep the juror at least over the weekend. Defense counsel
requested that the court “examine him with my consent and my client’s consent” to create a better
record of the issues. App’x 126. Judge Baer agreed to talk to Juror No. 10. On Monday morning,
December 7, Judge Baer announced that Juror No. 10 had been dismissed. The Government asked
the court to state on the record the reasons for the discharge. Judge Baer explained that he had
spoken with the juror at the parties’ “mutual behest” and told the juror that they would revisit the
issue on Monday. App’x 130. On Monday, the juror phoned the court to say that he had too many
competing obligations, including taking his girlfriend to the doctor that day. He asked to be excused
and Judge Baer agreed. After hearing this, defense counsel stated “I will indicate on the record what
your Honor has stated about what the defendant agreed to is correct.” App’x 131.
        At trial the Government presented testimony of four cooperating witnesses, law
enforcement agents, civilian witnesses, as well as court-authorized recordings and wiretaps, and
physical evidence. The defense presented no witnesses. On December 14, the jury returned its
verdict finding Rivera guilty on all six counts. On May 20, 2010, Rivera was sentenced principally to
imprisonment of one day each on Counts One, Two, Four and Six, to run concurrently, followed by


defendant time to digest and contemplate the risks, with the aid of independent counsel if desired.” United States v. Kliti,
156 F.3d 150, 153 & n.4 (2d Cir. 1998) (citing United States v. Curcio, 680 F.2d 881, 888-90 (2d Cir. 1982)).




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a mandatory minimum sentence of seven years on Count Three and twenty-five years on Count
Five, to run consecutively, for a total term of 384 months and one day.
                                                    DISCUSSION
                                          A. Sufficiency of the Evidence
         Rivera argues that there was insufficient evidence to convict him on Counts Three and Five
for aiding and abetting the use of a firearm in connection with two Hobbs Act robberies in violation
of 18 U.S.C. § 924(c) and 2.3 We review de novo the denial of a request for a judgment of acquittal
pursuant to Fed. R. Crim. P. 29.4 United States v. Heras, 609 F.3d 101, 105 (2d Cir. 2010) (citations
omitted). On appeal “a reviewing court must sustain the jury’s guilty verdict if ‘viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’” Id. (quoting Jackson v. Virginia, 443 U.S.
307, 319 (1979) (emphasis in original)).
          Rivera was convicted of aiding and abetting the “use” of a firearm in connection with two
robberies. The term “use” includes “brandishing” defined as displaying or otherwise making the
presence of the firearm known “in order to intimidate [a] person”. 18 U.S.C. § 924(c)(4). A person
is liable for aiding and abetting a crime if “he (1) takes an affirmative act in furtherance of that
offense, (2) with the intent of facilitating the offense’s commission.” Rosemond v. United States, 134 S.
Ct. 1240, 1245 (2014). The Supreme Court recently held that a defendant may “assist in § 924(c)’s
violation by facilitating either the [underlying violation] or the firearm use (or of course both).”5 Id.
at 1247.
         There is ample evidence on which a jury could convict Rivera on Counts Three and Five.
The evidence overwhelmingly shows that firearms were brandished in connection with both
robberies. On Count Three, cooperating witnesses Salvador Ramos and Hector Matthews testified
that it was Rivera’s idea to rob D&G. Ramos testified that he met with Rivera “several times” to
discuss the robbery of D&G, and that it was Rivera’s idea to use an unloaded firearm during the
robbery. There was also testimony that Rivera instructed Matthews about when and where to
retrieve the gun, which Matthews passed along to Ramos.


         3  Section 924(c) provides, in relevant part: “any person who, during and in relation to any crime of violence . . .
uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the
punishment provided for such crime of violence . . . if the firearm is brandished, be sentenced to a term of
imprisonment of not less than 7 years.” 18 U.S.C. § 924(c)(1)(A)(ii). Section 2 provides that “[w]hoever commits an
offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable
as a principal.” 18 U.S.C. § 2(a).
         4   Rivera moved pursuant to Rule 29 for a judgment of acquittal, which the District Court denied.
         5  This holding expanded aiding and abetting liability under Section 924(c) as previously recognized by this
Court, which required an act in furtherance of the use of the firearm, not merely the underlying offense. See e.g., United
States v. Medina, 32 F.3d 40, 45 (2d Cir. 1994).



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         On Count Five, evidence was presented that Rivera assembled the members of the crew for
the 2007 robbery of the Fed-Ex vehicle at gunpoint, chose the date of the robbery and directed it.
Even defense counsel concedes that “the evidence suggested that Mr. Rivera had some role in
recruiting the Russians, who, according to numerous witnesses, used firearms in the robbery.” In
light of the foregoing, under any standard, but particularly under the Supreme Court’s recently
articulated standard for aiding and abetting liability, there was sufficient evidence for a jury to
convict Rivera on Counts Three and Five.6
                                        B. Disqualification of Counsel
         A district court’s decision to disqualify an attorney is accorded “‘substantial latitude’” and is
reviewed only for “abuse of discretion.” United States v. Locascio, 6 F.3d 924, 931 (2d Cir. 1993)
(quoting Wheat v. United States, 486 U.S. 153, 163-64 (1988)). The Sixth Amendment guarantees a
right to “representation that is free from conflicts of interest.” Wood v. Georgia, 450 U.S. 261, 271
(1981) (citations omitted). It also guarantees, with some limitations, a right to counsel of one’s
choosing. See United States v. Gonzalez-Lopez, 548 U.S. 140, 147-48 (2006). Where these rights are in
tension, the district court must weigh the competing rights, bearing in mind the Supreme Court’s
admonition that “the essential aim of the [Sixth] Amendment is to guarantee an effective advocate
for each criminal defendant rather than to ensure that a defendant will inexorably be represented by
the lawyer whom he prefers.” Wheat, 486 U.S. at 159. If, upon investigation, a district court
determines that there is an actual or potential conflict of interest, it must determine, in a Curcio
hearing, whether the conflict requires disqualification of the attorney or whether the conflict can be
waived by the defendant. See United States v. Kliti, 156 F.3d 150, 153 (2d Cir. 1998). Courts must also
consider the “interests of the courts in preserving the integrity of the process and the government’s
interests in ensuring a just verdict and a fair trial.” Locascio, 6 F.3d at 931. A court is not required to
accept a defendants’ waiver of his lawyer’s conflict of interest at the expense of these interests.
United States v. Arrington, 867 F.2d 122, 128-29 (2d Cir. 1989).
         Stacey Richman’s representation of Rivera implicates several ethical “red flags”: a parent and
a child representing co-defendants; two members of the same firm representing co-defendants; and
an attorney’s prior representation of co-defendants and cooperating witnesses in the current case.
See N.Y. Rules of Professional Conduct 1.10(h), 1.7, 1.9. The District Court properly exercised its
judgment in concluding that the potential conflicts―particularly Stacey’s prior representation of co-
defendants and potential cooperating witnesses―were sufficiently likely to materialize7 and,

         6An additional basis on which the jury was instructed that it could find Rivera guilty of a Section 924(c)
offense was Pinkerton liability, which permits one conspirator to be found guilty of substantive offenses committed by his
co-conspirators in furtherance of the conspiracy. See Pinkerton v. United States, 328 U.S. 640 (1946). Because we affirm
the judgment on the basis of aiding and abetting, we need not reach the alternative Pinkerton theory of liability.
         7 Indeed, some or all of the codefendants whom Stacey Richman had previously represented ended up

cooperating with the Government in the case against Rivera, although they did not end up testifying at trial.



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combined with the apparent conflict arising from her sharing an office with her father, necessitated
disqualifying Stacey Richman. See United States v. Cain, 671 F.3d 271, 294 (2d Cir. 2012) (“Given the
difficulties . . . [and] the uncertainties involved where the conflict has yet to fully materialize . . . the
evaluation of whether the facts and circumstances of a particular case evince a conflict so serious as
to be unwaivable is a discretionary one that is best left primarily to the informed judgment of the
trial court.”) (internal citations and quotation marks omitted). Accordingly, disqualifying Stacey
Richman was not in any sense error, much less an “abuse of discretion.”8
                                       C. Dismissal of Juror Number 10
        Rivera challenges the decision of the District Court to dismiss Juror No. 10 after an ex parte
conversation with the juror, conducted at the behest of defense counsel, but before consulting again
with the parties. It is well-established that “[d]iscretion . . . is vested in the district court to remove a
juror when the facts reveal that the juror’s ability to perform her duties are impaired.” United States v.
Gambino, 951 F.2d 498, 502 (2d Cir. 1991). See also Fed. R. Crim. P. 24(c) (authorizing judges to
“replace jurors who are unable to perform or who are disqualified from performing their duties”).
The District Court conducted the requisite “informed discussion (with counsel) on the proper
course to follow,” United States v. Taylor, 562 F.2d 1345, 1366 (2d Cir. 1977) (citations omitted), and
complied with defense counsel’s request to discuss the issue further with the juror ex parte, which the
defense acknowledged after the juror was dismissed. Moreover, even if we found that reasonable
cause to dismiss Juror No. 10 was lacking, the dismissal of a juror “will be set aside only where the
prejudice to a defendant is shown to be manifest.” Mikus v. United States, 433 F.2d 719, 723 (2d Cir.
1970) (internal citations and quotation marks omitted). Rivera has not demonstrated any way in
which he was prejudiced by the dismissal of Juror No. 10. Accordingly, we affirm the decision of
the District Court to dismiss this juror.
                        D. Seven-Year Sentence on Count Three for Brandishing
        Rivera challenges the imposition of a seven-year mandatory minimum sentence for his
conviction on Count Three for aiding and abetting the use or carriage of a firearm during a violent
offense, in violation of 18 U.S.C. § 924(c), based on the finding of the District Court that the
firearm was “brandished” during commission of the offense. Rivera argues that, under the Supreme
Court’s recent decision in Alleyne v. United States, “because the fact of brandishing [under Section
924(c)] aggravates the legally prescribed range of allowable sentences, it constitutes an element of a
separate, aggravated offense that must be found by the jury.” 133 S.Ct. 2151, 2162 (2013). Because
the jury did not make a specific finding as to brandishing, Rivera contends, the mandatory minimum
sentence should have been five years.


         8 Rivera’s argument that Stacey “was already deeply involved in the case,” rendering Rivera’s interests in
retaining her particularly strong, Appellant’s Br. 33, does not counsel otherwise. Pre-trial motions had not yet been filed
and there is no indication in the record that Stacey Richman had devoted significant resources to the case.



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        On Count Three, Judge Baer instructed the jury that the Indictment charged that Rivera “did
use and carry a firearm and in furtherance of [the crime charged in Count Two] did possess a
firearm and did aid and abet the use, carrying and possession of the firearm which was brandished
during the robbery . . . .” App’x 133 (emphasis supplied). The jury was further instructed that the
Government was required to prove use, carriage or possession of the firearm during or in relation to
the robbery, and that brandishing was one type of “use.” App’x 135. Neither party requested that
the jury be asked to make a specific finding with respect to brandishing, and the jury was not so
instructed.9
         Rivera did not object to being sentenced based on a judicial finding that should have been
made by a jury and, accordingly, we review the sentence for plain error. See United States v. Joyner, 313
F.3d 40, 45 (2d Cir. 2002) (citing United States v. Thomas, 274 F.3d 655, 660 (2d Cir. 2001)). The
parties do not dispute that, under Alleyne, it was error for the District Court to impose a seven-year
mandatory minimum sentence based on a finding that the weapon in question was “brandished”
when the jury did not make an express finding to that effect. The first three conditions of plain
error―“(1) error, (2) that is plain, and (3) that affects substantial rights,”―are met where, as here,
failure to submit a question to the jury results in a higher sentence. An appellate court may only
remedy such error, however, if it “seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Joyner, 313 F.3d at 45 (quoting Johnson v. United States, 520 U.S. 461, 467 (1997)
(alterations omitted)). This fourth element is not satisfied where “there is no disagreement as to the
truth of the pertinent facts, and the record as a whole casts no doubt on the accuracy of that fact.”
Id. at 46 (internal citation, quotation marks and alternation omitted).
        As discussed in Part A, supra, Rivera points to no evidence casting doubt on the testimony of
the individual who carried out the robbery (Ramos) that he was instructed (by Rivera and Mathews)
to “use a gun” while carrying out the robbery of D&G, and that he did so. Because the evidence
was “overwhelming and essentially uncontroverted” United States v. Cotton, 535 U.S. 625, 633 (2002)
(internal quotation marks omitted), we conclude that the error did not affect the fairness, integrity,
or reputation of the proceedings.




         9At the time of sentencing, the question of whether the firearm was brandished, thus increasing the
mandatory minimum sentence to seven years, could be decided by the judge. See Harris v. United States, 536 U.S. 545
(2002). The Supreme Court overturned this holding in Alleyne, 131 S. Ct. at 2155, 2163.



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                                         CONCLUSION
        We have considered the arguments in Rivera’s pro se and counseled briefs, and find them to
be without merit. For the reasons set out above we AFFIRM the May 25, 2010 judgment of the
District Court.
                                              FOR THE COURT,
                                              Catherine O’Hagan Wolfe, Clerk of Court




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