18-1393
U.S. v. 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 TO 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 17th day of October, two thousand nineteen.

PRESENT:
                 JOHN M. WALKER, JR.,
                 SUSAN L. CARNEY,
                             Circuit Judges,
                 JOHN G. KOELTL,
                             District Judge.*

_________________________________________

UNITED STATES OF AMERICA,

                 Appellee,

                         v.                                                         No. 18-1393

HECTOR RIVERA,

           Defendant-Appellant.
_________________________________________

FOR DEFENDANT-APPELLANT:                                   ROBERT A. CULP, Law Office of Robert
                                                           A. Culp, Garrison, NY.



 *Judge John G. Koeltl, of the United States District Court for the Southern District of New York, sitting by
designation.
FOR APPELLEE:                                                SCOTT HARTMAN (Jordan Estes, Daniel B.
                                                             Tehrani, on the brief), for Geoffrey S.
                                                             Berman, United States Attorney for the
                                                             Southern District of New York, New
                                                             York, NY.

        Appeal from a judgment of the United States District Court for the Southern District
of New York (Engelmayer, J.).

        UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment entered on May 7, 2018, is
AFFIRMED.

        Defendant-Appellant Hector Rivera appeals from a judgment of conviction entered
on May 7, 2018, following a five-day jury trial in the United States District Court for the
Southern District of New York (Engelmayer, J.). Rivera was convicted of (1) conspiracy to
commit murder for hire in violation of 18 U.S.C. § 1958; (2) murder for hire in violation of
18 U.S.C. §§ 1958 and 2; and (3) carrying a firearm during and in relation to a crime of
violence in violation of 18 U.S.C. §§ 924(j) and 2. We assume the parties’ familiarity with the
underlying facts, procedural history, and arguments on appeal, to which we refer only as
necessary to explain our decision to affirm.1

        At trial, the government relied primarily on the testimony of two cooperating
witnesses, Lixander Morales and Roni Amrussi, to prove that Rivera orchestrated the murder
of Eduard Nektalov, a jeweler in Manhattan’s Diamond District. According to this
testimony, Rivera started working as a “muscle man” for Amrussi, another diamond dealer
in the District, in the 1990s. Although Rivera’s services included providing Amrussi with
protection, Amrussi was physically assaulted by Nektalov’s associates in 2001, following a
business dispute between the two men. The incident angered Rivera, and in 2004, he




 1 As required “when evaluating an appeal following a conviction by a jury, we recite the facts in the light
most favorable to the government, and as the jury was entitled to find them in its deliberations.” United States
v. Kirk Tang Yuk, 885 F.3d 57, 65 (2d Cir. 2018).


                                                       2
proposed to Amrussi that they “hurt Eddie Nektalov.” Tr. 238.2 Rivera suggested that the
police would not suspect that they were behind an attack on Nektalov because Nektalov,
who was facing criminal charges of money laundering at the time, had “many enemies” who
were concerned that Nektalov was cooperating with law enforcement. Tr. 239.

           Amrussi directed Rivera not to hurt Nektalov, but Rivera nevertheless asked Morales,
an associate who had previously helped Rivera commit robberies, to find a hitman to kill
Nektalov. Morales, in turn, traveled to Puerto Rico to recruit his friend, Carlos Fortier, for
the job. Although he discovered on this trip that Fortier was actually living in New York, not
Puerto Rico, Morales was able to obtain Fortier’s phone and contact information from
persons in Puerto Rico. Morales then returned to New York, located Fortier, and arranged a
meeting between Rivera and Fortier. Later, at Rivera’s direction, Morales took Fortier to
Nektalov’s jewelry store on 47th Street and showed him escape routes for possible use after
the murder. Rivera also gave Morales a black Colt .45 to give to Fortier, instructing him to
return the gun after “the job was finished.” Tr. 503.

           On May 20, 2004, Fortier shot and killed Nektalov with Rivera’s gun. Shortly
thereafter, Rivera met with Morales, paid him $20,000, and told him that he had also paid
Fortier for the murder.3 Rivera then went to Amrussi, from whom he demanded $150,000 so
that he (Rivera) could pay “[the] people who kill[ed] Eddie Nektalov.” Tr. 248. Amrussi
complied, fearing that Rivera would otherwise harm him.

           On November 17, 2017, a jury found Rivera guilty as charged. In 2018, the District
Court sentenced him to two terms of life imprisonment to run concurrently plus twenty-five
years on the firearms count to run consecutively to the sentences on the other two counts.

           On appeal, Rivera advances five challenges to his convictions. He first disputes the
sufficiency of the government’s evidence as to the interstate aspect of his murder-related
convictions. He then argues that the District Court erred by admitting evidence of Rivera’s


 2“Tr.” refers to the full trial transcript filed on the District Court’s docket, and “App’x” refers to the
appendix filed by Rivera on appeal.
 3   Fortier died in prison before Rivera’s trial commenced.


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prior criminal activity; restricting his ability to cross-examine a government witness;
excluding from the jury charge his proposed instruction on witness credibility; and
conducting certain sidebar discussions with counsel outside of his presence. For the reasons
set forth below, we conclude that Rivera has provided no basis for overturning his
convictions.

   1. Sufficiency of the Evidence

       Rivera argues that the government did not introduce sufficient evidence that he
caused interstate travel or used a facility of interstate commerce with the intent to commit
murder for hire—an element of his murder-for-hire offenses based on 18 U.S.C. § 1958. In
evaluating a sufficiency challenge, “we view the evidence in the light most favorable to the
government, crediting every inference that could have been drawn in the government’s
favor, and deferring to the jury’s assessment of witness credibility and its assessment of the
weight of the evidence.” United States v. Babilonia, 854 F.3d 163, 174 (2d Cir. 2017) (internal
quotation marks omitted). Our review is therefore “exceedingly deferential,” United States v.
Coplan, 703 F.3d 46, 62 (2d Cir. 2012) (citation omitted), and we must affirm a defendant’s
conviction “if any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt,” Babilonia, 854 F.3d at 174 (internal quotation marks and
emphasis omitted).

       When Nektalov was killed in May 2004, section 1958(a) provided in relevant part:

               Whoever travels in or causes another . . . to travel in interstate or foreign
               commerce, or uses or causes another . . . to use the mail or any facility in
               interstate or foreign commerce, with intent that a murder be committed in
               violation of the laws of any State or the United States as
               consideration for the receipt of, or as consideration for a
               promise or agreement to pay, anything of pecuniary value, or
               who conspires to do so, shall be . . . imprisoned for not more
               than ten years . . . ; and if death results, shall be punished by
               death or life imprisonment . . . .




                                                    4
18 U.S.C. § 1958(a) (1996) (emphasis added).4 The government can thus satisfy section
1958’s interstate-commerce requirement by proving that, with the requisite mens rea, i.e., with
the intent to commit murder for hire, a defendant either (1) traveled interstate or used a
facility of interstate commerce, or (2) caused another to do so.

        In this case, the government introduced evidence from which a rational trier of fact
could conclude beyond a reasonable doubt that Rivera caused another to travel interstate
with the intent to hire a hitman. According to Morales’s testimony at trial, Rivera instructed
Morales to “get someone” to kill Nektalov. Tr. 495. Morales acted on those instructions by
traveling from New York to Puerto Rico to recruit Fortier, and Rivera paid the expenses of
Morales’s interstate travel. Although, while in Puerto Rico, Morales discovered that Fortier
lived in New York, Morales succeeded during his travels in obtaining Fortier’s contact
information from Fortier’s relatives, who resided there. With this information, upon his
return Morales was able to locate Fortier at a New York housing facility and arrange a
meeting between Rivera and Fortier. In light of Morales’s testimony—which the jury was
permitted to credit—we conclude that a rational trier of fact could find that Rivera caused
Morales’s interstate travel and that Rivera did so with the intent to have Morales recruit a
gunman to kill Nektalov in return for compensation. See United States v. James, 239 F.3d 120,
124 (2d Cir. 2000) (“[T]he credibility of witnesses is the province of the jury and we simply
cannot replace the jury’s credibility determinations with our own.” (internal quotation marks
omitted)).

        On appeal, Rivera contends that Morales’s trip to Puerto Rico does not satisfy section
1958(a)’s interstate-commerce requirement because at the time of the travel, “[t]here was no
agreement [to commit murder] in existence” between Rivera and Fortier. Appellant’s Br. 28.
This argument fails, however, because section 1958(a) does not require that the interstate
travel occur after defendants have finalized an agreement to carry out murder for hire.



 4Congress amended section 1958(a) in 2004 by changing the phrase “facility in interstate or foreign
commerce” to “facility of interstate or foreign commerce.” Compare 18 U.S.C. § 1958(a) (1996) with 18 U.S.C. §
1958 (2004)(emphasis added). As we explained in United States v. Perez, however, this amendment did not alter
the section’s substance. 414 F.3d 302, 304 (2d Cir. 2005).


                                                      5
Instead, it requires merely that a defendant act with the requisite mens rea—i.e., “with the
intent that murder be committed [for hire]”—when he travels, or causes another individual
to travel, across state lines. 18 U.S.C. § 1958(a) (1996). Here, the record supports a finding
that Rivera caused Morales to travel to Puerto Rico for the illicit purpose. Accordingly,
Rivera’s sufficiency challenge falls short.

   2. Prior Criminal Activity

       Next, Rivera argues that the District Court abused its discretion by admitting
testimony concerning prior criminal activity that Rivera jointly committed with Amrussi and
Morales. This activity included acts of extortion, robbery, and attempted kidnapping. Rivera
contends that this testimony was inadmissible propensity evidence and should have been
excluded under Federal Rule of Evidence 404(b).

       Rule 404(b) “prohibits the admission of evidence of prior crimes, wrongs, or acts to
prove the defendant’s propensity to commit the crime charged.” United States v. Dupree, 870
F.3d 62, 76 (2d Cir. 2017) (internal quotation marks omitted). Under this Circuit’s
“inclusionary approach,” however, prior act evidence is admissible under Rule 404(b) “if
offered for any purpose other than to show a defendant’s criminal propensity.” Id. (internal
quotation marks omitted). Thus, for example, “[a] district court can . . . admit evidence of
prior acts to inform the jury of the background of the conspiracy charged, in order to help
explain how the illegal relationship between participants in the crime developed, or to
explain the mutual trust that existed between coconspirators.” Id. (internal quotation marks
omitted).

       In reviewing a district court’s Rule 404(b) determination, we consider whether: “(1)
the prior crimes evidence was offered for a proper purpose; (2) the evidence was relevant to
a disputed issue; (3) the probative value of the evidence was substantially outweighed by its
potential for unfair prejudice pursuant to Rule 403; and (4) the court administered an
appropriate limiting instruction.” United States v. Curley, 639 F.3d 50, 56-57 (2d Cir. 2011)
(internal quotation marks omitted). We will not overturn “[a] district court’s decision to




                                                6
admit other crimes evidence under Rule 404(b) . . . absent abuse of discretion.” United States
v. Guang, 511 F.3d 110, 121 (2d Cir. 2007) (internal quotation marks and alterations omitted).

       Here, we identify no abuse of discretion in the District Court’s decision to allow
evidence of Rivera’s prior criminal activity with Amrussi and Morales. The government
argued, and the District Court reasonably accepted, that the evidence would explain: (1) why
Rivera would reveal his murder plans to Morales and Amrussi; (2) why he would entrust
Morales with the sensitive task of hiring a hitman; and (3) why he would want to retaliate
against Nektalov after Nektalov’s associates assaulted Amrussi. The evidence was therefore
introduced for proper purposes—namely, to provide background information on the
development of the criminal conspiracy and the motive behind Nektalov’s murder. See id. at
121 (affirming the admission of other crimes evidence that was offered to “show the
existence of the illegal relationship between [co-conspirators] . . . and how it developed”);
United States v. Pipola, 83 F.3d 556, 566 (2d Cir. 1996) (affirming the admission of other
crimes evidence that was offered “to make the story of the crimes charged complete and to
enable the jury to understand how the illegal relationship between the co-conspirators
developed”). Indeed, as the District Court aptly noted, “Were evidence of [Rivera’s]
longstanding criminal relationship [with Amrussi and Morales] stripped away, it might well
seem improbable to a reasonable juror that Rivera would trust the [cooperating witnesses]
with such combustible information and/or such sensitive tasks.” App’x 38.

       Nor did the District Court err in concluding that the probative value of this evidence
outweighed its risk of creating unfair prejudice. Rivera’s prior criminal relationships with
Amrussi and Morales were highly probative of several contested issues, including Rivera’s
motivation for murdering Nektalov and the credibility of Amrussi’s and Morales’s testimony.
His prior criminal activities with Amrussi and Morales (i.e., robbery, extortion, and attempted
kidnapping), while serious, were “not unfairly prejudicial as they were no more sensational or
disturbing than the crimes with which [Rivera] was charged” (i.e., murder for hire). Curley,
639 F.3d at 59 (internal quotation marks omitted); see also Dupree, 870 F.3d at 77 (“There was
no undue prejudice because the [prior] acts did not involve conduct more serious than the
crimes charged . . . .”). Further, the District Court mitigated any prejudicial effects with


                                                7
proper limiting jury instructions. We therefore conclude that the District Court acted well
within the bounds of its discretion in allowing the challenged evidence.

   3. Cross-Examination

       Rivera contends next that the District Court violated his Sixth Amendment
confrontation rights by restricting his ability to cross-examine Detective Della Rocca, a
government witness, about the adequacy of the police investigation into Nektalov’s murder.
As defense counsel explained to the District Court at sidebar, the police arrested one Simon
Samandarov for the shooting of Nektalov’s cousin, Alik Pinkhasov, several months before
Nektalov was killed. According to an internal police report produced to the defendant
before trial under 18 U.S.C. § 3500, mere hours before he was shot dead, Nektalov received
a phone call in which “a male named either Sasha or Sam[] stat[ed] in substance that
[Nektalov] should have his cousin Alik drop [certain] charges or the same thing [would]
happen to [Nektalov] that happened to [his] cousin.” App’x 65. Rivera sought to introduce
evidence of this threatening phone call for the non-hearsay purpose of showing that the
police failed to properly investigate other potential suspects in the murder of Nektalov,
namely, Samandarov and his associates.

       The District Court denied the request. Relatedly, however, it permitted defense
counsel to cross-examine Detective Della Rocca about the earlier arrest of Samandarov in
connection with the Pinkhasov shooting. In so ruling, the District Court contrasted the
testimony about the arrest with the proposal regarding the phone call and police reports,
noting that the latter presented “an extreme hearsay problem.” App’x 69. It expressed
concern that, even with a limiting instruction, “[t]he dramatic quality of the hearsay claim
that [Nektalov] . . . received an arguable death threat several hours before his death” would
make it difficult for the jury not to consider the threat made in the phone call, as noted in
the police report, for the truth of the matter asserted. App’x 75. Citing these and other
considerations, the District Court excluded the proffered statement under Federal Rule of
Evidence 403. It made clear at the same time that its ruling was “without prejudice,” and that
defense counsel could “try to figure out a different way to work around this [evidentiary



                                               8
problem].” App’x 76, 78. It also observed that Rivera was “at liberty to explore the police
investigation into the Pinkhasov shooting.” App’x 78.

         The Confrontation Clause “guarantees a criminal defendant the right to cross-
examine government witnesses at trial.” United States v. Figueroa, 548 F.3d 222, 227 (2d Cir.
2008). That right does not, however, “guarantee unfettered cross-examination.” Alvarez v.
Ercole, 763 F.3d 223, 230 (2d Cir. 2014). Rather, “[d]istrict courts may impose reasonable
limits on such cross-examination based on concerns about, among other things, harassment,
prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or
only marginally relevant.” Figueroa, 548 F.3d at 227 (internal quotation marks omitted). A
district court typically “exercises [its] discretion by balancing the probative value of the
evidence against the potential for unfair prejudice,” Watson v. Greene, 640 F.3d 501, 511 (2d
Cir. 2011), and “[o]nly when this broad discretion is abused will we reverse a trial court’s
decision to restrict cross-examination,” United States v. Crowley, 318 F.3d 401, 417 (2d Cir.
2003).

         Here, the District Court did not abuse its discretion by precluding Rivera from cross-
examining Detective Della Rocca about the threatening phone call. The probative value of
the phone call—which Rivera proposed to adduce for the sole purpose of showing that law
enforcement failed to conduct an adequate investigation—was limited. Rivera does not
dispute that he could have tested the adequacy of the police investigation into Nektalov’s
death through other witnesses or other evidence. Nor does he contest that law enforcement
did, in fact, “meaningful[ly]” investigate “the relationship, if any, between the Pinkhasov
attack and the Nektalov murder.” App’x 70. Further, the District Court correctly recognized
that the phone call created “a considerable risk . . . [that] [t]he jury would or might well
consider the statement for the truth of the embedded matter asserted”—i.e., that Nektalov
actually received a phone call, just hours before he was murdered, in which the speaker made
a veiled threat to shoot him. App’x 75. Because we agree that the danger of jury confusion
substantially outweighed the phone call’s probative value, we conclude that the District
Court acted within its “broad discretion” when it curtailed Rivera’s cross-examination of
Detective Della Rocca. Crowley, 318 F.3d at 417.


                                                9
       In reaching this conclusion, we note that the situation presented here differs from
that found in Alvarez v. Ercole, 763 F.3d 223 (2d Cir. 2014), a case relied on by Rivera. In
Alvarez, we considered in a habeas action whether the state trial court violated Alvarez’s
Sixth Amendment rights by restricting his ability to cross-examine a government witness
during his trial for murder. In support of “his main defense theory[] that the police
investigation into the murder was flawed and had improperly disregarded a promising
alternate suspect,” Alvarez sought to elicit testimony from the lead detective about a police
report that identified someone other than Alvarez as a potential suspect. Id. at 232. The state
trial court, however, had erred by precluding this line of inquiry on hearsay grounds and
failing to recognize that Alvarez offered the testimony for the non-hearsay purpose of
showing that law enforcement failed to conduct a proper investigation. Id. at 225. In doing
so, we concluded, the trial court violated Alvarez’s rights under the Confrontation Clause
because, “by cutting off this line of questioning,” the court’s evidentiary rulings “effectively
denied Alvarez the opportunity to develop his only defense” and “left Alvarez without any
support for his theory of the case.” Id. at 225, 231.

       Here, by contrast, the District Court did not “entirely preclude[] [Rivera] from
fleshing out his main defense theory.” Id. at 232. Instead, its evidentiary ruling narrowly
precluded Rivera from eliciting a single hearsay statement. The Court still permitted defense
counsel to cross-examine Detective Della Rocca about “[the] investigative steps taken into
whether or not the Pinkhasov attack was related to the Nektalov murder.” App’x 80. Indeed,
the District Court did not foreclose the possibility that Rivera could introduce the
threatening phone call at a later point in the trial, noting that its evidentiary ruling “was
without prejudice to [Rivera] making a more well-developed showing” as to why it survived
Rule 403. App’x 71.

       Moreover, when Rivera signaled that he would rest without presenting any witnesses,
the District Court pressed defense counsel to explain their reasons for not developing a
defense theory based on the shooting of Nektalov’s cousin. In response, Rivera’s attorneys
represented that, notwithstanding the government’s offers to help them contact witnesses
implicated by the internal police report, they had “decided to forego that portion of the


                                                10
defense case for strategic reasons.” App’x 99. Thus, the record belies Rivera’s contention on
appeal that “[he] had no choice but to focus . . . on the credibility of the government’s
witnesses.” Appellant’s Reply 9. Instead, Rivera’s attorneys repeatedly—and, by their own
admission, “strategic[ally]”—declined the District Court’s invitations to develop a defense
theory that attacked the thoroughness of the police investigation into the Nektalov murder.
App’x 99. Accordingly, we conclude that the District Court’s modest restriction on Rivera’s
ability to cross-examine Detective Della Rocca did not violate the Sixth Amendment.

   4. Jury Instructions

       Rivera next challenges the District Court’s jury charge, arguing that the Court erred
when it declined his proposal to include the following language: “You may also consider a
witness’s earlier silence or inaction that is inconsistent with his or her courtroom testimony
to determine whether the witness has been impeached.” App’x 118.

       We review challenged jury instructions de novo, and we will not overturn a conviction
“for refusal to give a requested charge unless that requested instruction is legally correct,
represents a theory of defense with basis in the record that would lead to acquittal, and the
theory is not effectively presented elsewhere in the charge.” United States v. Han, 230 F.3d
560, 565 (2d Cir. 2000) (alterations omitted). Instead, the trial court has “discretion to
determine what language to use in instructing the jury as long as it adequately states the law,”
United States v. Alkins, 925 F.2d 541, 550 (2d Cir. 1991), and this Court “will vacate a
conviction . . . only if viewing as a whole the charge actually given, the defendant was
prejudiced,” United States v. Gonzalez, 407 F.3d 118, 122 (2d Cir. 2005) (internal quotation
marks and alterations omitted).

       Here, the District Court adequately instructed the jury on the subject of witness
credibility. Although the District Court did not specifically state that the jury could consider
a witness’s earlier silence or inaction when assessing his or her credibility, it conveyed as
much when it instructed the jury to “carefully scrutinize” all indicia of reliability, including,
inter alia, “the circumstances under which each witness testified,” “the impression the witness
made when testifying,” “the relationship of the witness to the controversy and the parties,”



                                                11
any “evidence that, at some earlier time, witnesses have said or done something that counsel
argues is inconsistent with their trial testimony,” and “any other matter in evidence that may
help you to decide the truth and the importance of each witness’s testimony.” Appx 137-38,
140. Thus, because “the substance of [Rivera’s] request [was] given by the court in its own
language,” Rivera has “no cause to complain.” Han, 230 F.3d at 565 (internal quotation
marks omitted).

       Moreover, as we have previously recognized, a district court’s failure to provide
complete jury instructions on the subject of cooperator-witness credibility does not
constitute reversible error so long as the jury charge, together with counsel’s arguments,
“fairly put th[at] issue . . . to the jury.” United States v. Vaughn, 430 F.3d 518, 523 (2d Cir.
2005); see also United States v. Santana, 503 F.2d 710, 716 (2d Cir. 1974) (finding no error
where the trial court instructed the jury to scrutinize the testimony of the cooperating
witnesses and where defense counsel “vigorously” attacked the witness’s credibility through
cross-examination and summation). Here, as Rivera acknowledges on appeal, his attorneys
forcefully argued during cross-examination and summation that “the cooperating witnesses
could not be trusted.” Appellant’s Br. 19. Thus, we conclude that, in light of the District
Court’s comprehensive jury charge and the arguments made by defense counsel at trial, the
jury was sufficiently advised of the need to scrutinize carefully the credibility of the
government’s witnesses. The District Court did not err by declining to adopt Rivera’s
proposed instruction.

   5. Right of Presence

       Finally, Rivera argues that the District Court violated his right to be present at every
stage of his trial by (1) requiring counsel to exercise their peremptory challenges in the
judge’s robing room, and (2) not inviting Rivera to certain sidebar conversations held during
jury selection and trial. Because Rivera did not object contemporaneously to his absence
from these various proceedings, we review his claim for plain error. See United States v. Salim,
690 F.3d 115, 124 (2d Cir. 2012) (reviewing a district court’s acceptance of waiver of
presence for plain error).



                                                 12
       A criminal defendant has the right “to be present at all stages of the trial where his
absence might frustrate the fairness of the proceedings.” Cohen v. Senkowski, 290 F.3d 485,
489 (2d Cir. 2002) (internal quotation marks omitted). This right—which is codified in
Federal Rule of Criminal Procedure 43(a) and “rooted in both the Sixth Amendment
Confrontation Clause and the Fifth Amendment Due Process Clause”—is “not absolute,”
however. United States v. Canady, 126 F.3d 352, 360-61 (2d Cir. 1997). Instead, “it is triggered
only when the defendant’s presence has a relation, reasonably substantial, to the fullness of
his opportunity to defend against the charge.” Cohen, 290 F.3d at 489 (internal quotation
marks omitted). Furthermore, “a defendant may expressly or effectively waive the right.” Id.
at 491. Although the waiver “must be knowing and voluntary,” it “can be implied from the
defendant’s conduct,” United States v. Jones, 381 F.3d 114, 122 (2d Cir. 2004) (internal
quotation marks omitted), and it can be inferred when the defendant has at least “minimal
knowledge of the nature and purpose of the [] procedure . . . [that] he did not attend,” Cohen,
290 F.3d at 491.

       In this case, “the trial court’s actions in open court gave [Rivera] sufficient minimal
knowledge of the nature and purpose” of the jury selection proceedings that would take
place outside of Rivera’s presence. Cohen, 290 F.3d at 491 (internal quotation marks omitted).
To begin, Rivera was present when the District Court described, in open court, its process
for jury selection. The District Court explained that it would first ask prospective jurors a
series of questions in open court. If a prospective juror answered “yes” to one of these
questions, the District Court would invite that person to sidebar so that “[the Court] c[ould]
understand more what the reason was for the yes answer.” App’x 43. Neither Rivera nor his
counsel objected to holding these sidebars outside of Rivera’s presence. Likewise, neither
objected when the District Court stated in open court that, “in about three minutes,” it
would ask counsel to come to the robing room to exercise their peremptory strikes. App’x
44. In light of the District Court’s transparency about the jury selection proceedings that
would be held outside of Rivera’s presence, the District Court did not err, much less plainly
err, by treating Rivera’s failure to object as a waiver of his right of presence.




                                                13
         For similar reasons, we reject Rivera’s claim that the sidebar conversations conducted
at trial violated his constitutional rights. In his appeal, Rivera focuses on his exclusion from
the ex parte sidebar discussion in which the District Court asked defense counsel to explain
why it had not pursued further the connection between the Pinkhasov shooting and the
Nektalov murder. Here again, however, the District Court put Rivera on notice of the nature
and purpose of this sidebar discussion. In open court, the District Court reminded defense
counsel of its earlier evidentiary ruling to exclude the threatening phone call; noted that this
ruling was “without prejudice to [Rivera’s] right to offer [the evidence] by other means”; and
then asked defense counsel to articulate its reasons for not pursuing the issue further. App’x
97-98. In response, defense counsel explained in Rivera’s presence that “[it] ha[d] decided to
forego that portion of the defense case for strategic reasons.” App’x 99. When pressed by
the District Court for additional explanation, defense counsel requested to be heard ex parte
at sidebar, and the District Court agreed, with no objection from the government. In light of
the District Court’s detailed descriptions of the nature of the upcoming sidebar conversation
with defense counsel, Rivera clearly had the “minimal knowledge” required to waive his right
of presence implicitly by failing to object. Accordingly, the record provides no basis for
concluding that the District Court deprived Rivera of his right to be present at every stage of
trial.

                                             * * *

         We have considered Rivera’s remaining arguments on appeal and conclude that they
are without merit. For the foregoing reasons, the District Court’s judgment is AFFIRMED.

                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk of Court




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