11-5342-cr
United States v. Bright


                                  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 27th
day of June, two thousand thirteen.

PRESENT:
                     GUIDO CALABRESI,
                     JOSÉ A. CABRANES,
                     BARRINGTON D. PARKER,
                                  Circuit Judges.

_____________________________________

UNITED STATES OF AMERICA,

                     Appellee,

                             v.                                     No. 11-5342-cr

SIDNEY BRIGHT,

            Defendant-Appellant.
_____________________________________

FOR APPELLEE:                                        Jillian B. Berman, Joan M. Loughnane, Iris
                                                     Lan, Assistant United States Attorneys, for
                                                     Preet Bharara, United States Attorney for the
                                                     Southern District of New York, New York,
                                                     NY.
FOR DEFENDANT-APPELLANT:                                          B. Alan Seidler, Law Office of B. Alan Seidler,
                                                                  New York, NY.

        Appeal from December 19, 2011 judgment of conviction of the United States District Court
for the Southern District of New York (William H. Pauley III, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of conviction is AFFIRMED.

         Defendant-appellant Sidney Bright (“Bright” or “defendant”) appeals from the District
Court’s judgment of conviction following two jury trials in which he was charged with four counts
based on drug trafficking activity and associated conduct. Count One of the superseding indictment
charged Bright with conspiring to distribute and possessing with intent to distribute cocaine base
(“crack cocaine”), powder cocaine, and heroin, in violation of 21 U.S.C. § 846; Count Two charged
defendant with possessing and using a firearm during and in relation to a drug trafficking crime, and
aiding and abetting the same, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 2; Count Three charged
that, in the course of committing the crime charged in Count Two, Bright caused the death of
Heriberto Diaz (“Diaz”), through the use of a firearm, and aided and abetted the same, in violation
of 18 U.S.C. §§ 924(j) and 2; and Count Four charged Bright with intentionally killing Diaz while
engaged in a conspiracy to distribute crack cocaine and cocaine, and aiding and abetting the same, in
violation of 18 U.S.C. § 2, and 21 U.S.C. § 848(e)(1)(A). Following the District Court’s declaration
of a mistrial on July 23, 2008, defendant was retried and acquitted by a jury of Counts Three and
Four in their entirety and acquitted of Count One with respect to powder cocaine and heroin. The
jury convicted Bright, however, of Count One with respect to crack cocaine and of Count Two in its
entirety. We assume the parties’ familiarity with the facts and procedural history of this case, to
which we refer only as necessary to explain our decision to affirm.

                                                  BACKGROUND

         Bright was arrested on March 16, 2006 for his involvement, between 1995-2004, in an illegal
drug business and for providing a firearm to another individual in 2002, while engaged in the drug
trade, to intentionally kill a rival drug dealer, Diaz. Bright was alleged to be the boss of a drug
organization that operated in and around the Courtlandt Avenue area in the Bronx, and which
supplied cocaine, heroin, and crack cocaine to street customers and other drugs dealers through a
system of managers, sellers (or “pitchers”), “lookouts,” and “enforcers.”1 Bright’s drug business


         1 Testimony at Bright’s second trial demonstrated that pitchers sold drugs in various eight-hour shifts,

sometimes for 24 hours a day, seven days a week. Lookouts, as the name suggests, protected the organization by
watching for law enforcement, while managers ensured that pitchers were supplied and that their proceeds went back to
the business. Finally, enforcers would protect the business against rival dealers by, inter alia, shooting at the locations
where rival drug dealers were conducting business, or shooting directly at the rival dealers themselves. At defendant’s
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also involved making multiple trips to transport drugs between New York City and Lynchburg,
Virginia, and the ownership of barber shops in New York as “fronts” for illegal activity.2

        It is undisputed that, following his arrest, Bright “proffered with the government” on
January 14, 2008 and March 5, 2008. During these sessions, he was represented by multiple
attorneys, including Avraham Moskowitz. Two days after the commencement of Bright’s first trial,
it was brought to the attention of the District Court that the government’s testifying witness, Steven
Young, had previously been represented by an attorney in the case who had later (following the
completion of her representation of Young) became a law partner of Moskowitz. After an
appointment, pursuant to United States v. Curcio, 680 F2d 881 (2d Cir. 1982), of independent counsel
to advise Bright on a potential conflict-of-interest with respect to his representation, and a refusal by
Bright to waive any possible conflict issues, the District Court declared a mistrial and appointed new
counsel for a second trial.

        Following the jury’s guilty verdict in the second trial, Bright appeared before the District
Court for sentencing. Noting, inter alia, that “[w]hile the jury acquitted [Bright] of the murder
charge, it’s clear to this Court that the government proved the murder charge by clear and
convincing evidence,” the District Court calculated Bright’s guideline sentence to be life
imprisonment before sentencing him to consecutive terms of 400 months’ imprisonment on Count
One and 60 months’ imprisonment on Count Two.

         This appeal followed.

                                                    DISCUSSION

         Bright raises a number of claims on appeal, arguing: (1) that the District Court improperly
charged the jury on the issue of reasonable doubt; (2) that counsel at his second trial was
constitutionally ineffective; (3) that he was improperly sentenced as a prior felony offender; and (4)
that his sentence was unreasonable.

                                                             A.

        On appeal, Bright argues that the District Court’s erred in its reasonable doubt instruction.
Specifically, he claims: (1) the instruction that a reasonable doubt is one “that a reasonable person

subsequent sentencing hearing, the District Court characterized “Mr. Bright’s round-the-clock drug operation” as
“creat[ing] addicts, spread[ing] disease and [being] a plague for years in the Bronx.”

          2 At Bright’s second trial, the jury heard testimony that while travelling to Virginia with an associate in a car

transporting approximately 500 grams of crack cocaine, Bright was stopped by law enforcement officials on the New
Jersey turnpike. Bright fled the car and jumped into a nearby body of water, despite (apparently) not knowing how to
swim. The associate, Lee Davis, subsequently agreed to take responsibility for the crack cocaine which was discovered
in the car and served a term of imprisonment of 44 months’.
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has after carefully weighing all of the evidence in the case” does not give the jury sufficient guidance;
and (2) that the District Court’s instruction that “[each juror] can candidly and honestly say . . . that
you do have an abiding belief of [the] defendant’s guilt,” is “confusing and gives the jury no
guidance.” Appellant’s Br. 15-16. These arguments are without merit. The Supreme Court has
instructed that “[t]he beyond a reasonable doubt standard is a requirement of due process, but the
Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do
so as a matter of course . . . so long as the court instructs the jury on the necessity that the
defendant’s guilt be proved beyond a reasonable doubt, the Constitution does not require that any
particular form of words be used in advising the jury of the government’s burden of proof.” Victor
v. Nebraska, 511 U.S. 1, 5 (1994) (citations omitted); see also United States v. Gansman, 657 F.3d 85,
91 (2d Cir. 2011) (“No particular wording or phrasing is required for an instruction to be legally
sufficient, so long as, ‘taken as a whole,’ the instruction correctly conveys the applicable law.”
(quoting Victor, 511 U.S. at 5 (internal quotation marks omitted))). Upon reviewing the relevant jury
instructions, we find that the District Court correctly conveyed the government’s burden to find
Bright guilty beyond a reasonable doubt. Accordingly, we conclude that the District Court did not
err in charging the jury on the issue of reasonable doubt.

                                                           B.

        Second, Bright argues on appeal that counsel at his second trial was constitutionally
deficient. In order to succeed on an ineffective assistance of counsel claim, a criminal defendant
must demonstrate both that his counsel’s performance was unreasonably deficient under prevailing
professional standards and that, but for his counsel’s unprofessional errors, there exists a reasonable
probability that the outcome before the District Court would have been different. See Strickland v.
Washington, 466 U.S. 668, 687, 694 (1984). “When faced with a claim for ineffective assistance of
counsel on direct appeal, we may: (1) decline to hear the claim, permitting the appellant to raise the
issue as part of a subsequent petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255; (2)
remand the claim to the district court for necessary factfinding; or (3) decide the claim on the record
before us.” United States v. Morris, 350 F.3d 32, 39 (2d Cir. 2003). Among these options, the
Supreme Court has instructed that “in most cases a motion brought under § 2255 is preferable to
direct appeal for deciding claims of ineffective assistance.” Massaro v. United States, 538 U.S. 500, 504
(2003); see also Morris, 350 F.3d at 39 (noting a “baseline aversion to resolving ineffectiveness claims
on direct review” (internal quotation marks omitted)). In light of these principles, we decline to hear
Bright’s ineffective assistance claim here, in order to afford him greater time to develop the record,
and without prejudice to him raising the claim as part of a subsequent petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2255.3

3In a related vein, Bright claims that the District Court erred in denying his motion to preclude the government’s use of
his proffer statements, arguing that the statements were made while he had counsel laboring under a conflict of interest.
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                                                             C.

        In a related vein, Bright claims that the District Court erred in denying his motion to
preclude the government’s use of his proffer statements, arguing that the statements were made
while he had counsel laboring under a conflict of interest. Even assuming, arguendo, that one of
Bright’s attorneys was conflicted, the record shows that Bright had at least one conflict-free counsel
while proffering and that there was no basis for imputing the alleged conflict to any other attorneys.
See Triana v. United States, 205 F.3d 36, 43 (2d Cir. 2000). Moreover, there is no indication from the
record that a conflict “adversely affected [any of the] counsel[s’] performance.” United States v.
Schwarz, 283 F.3d 76, 91 (2d Cir. 2002). Accordingly, we find that the District Court did not err in
denying Bright’s motion.

                                                            D.

        Fourth, Bright claims that he was improperly sentenced as a prior felony offender. Prior to
the second trial, the government filed a so-called prior felony information, providing notice of its
claim that Bright was subject to enhanced penalties under 21 U.S.C. § 841(b)(1)(B), which carries a
10-year mandatory minimum sentence. On appeal, the government concedes that the correct
provision was actually Section 841(b)(1)(A), which would ordinarily have carried a mandatory
minimum sentence of 20 years. At sentencing, the District Court assumed that the Fair Sentencing
Act of 2010 (“FSA”), Pub. L. No. 111–220, 124 Stat. 2372, which increased the amounts of crack
cocaine required to trigger statutory sentencing minimums, was not retroactive, and determined that
Bright was subject to a mandatory minimum sentence of 20 years. In so doing, however, the
District Court stated that even if the FSA was retroactive, and Bright’s mandatory minimum
sentence was different, that “Bright [would] not be getting a mandatory minimum sentence.” As it
happened, following Bright’s sentence on December 9, 2011, the Supreme Court clarified that the
FSA did indeed retroactively apply to convicted defendants, such as Bright, who were sentenced
after the Act’s effective date of August 3, 2010. See Dorsey v. United States, 132 S. Ct. 2321, 2336
(2012). Applying the FSA retroactively, then, Bright ultimately was subject only to a mandatory
minimum sentence of ten years—even under Section 841 (b)(1)(B).

        Bright claims that the government’s error in citing an incorrect statutory provision in his
prior felony information deprived him of his ability to decide whether to “enter a plea or go to trial.”
United States v. Morales, 560 F.3d 112, 115 (2d Cir. 2009). We disagree. On the record before us, it is
clear that Bright was not prejudiced at any time by the government’s mistake, Morales, 560 F.3d at

Even assuming, arguendo, that one of Bright’s attorneys was conflicted, the record shows that Bright had at least one
conflict-free counsel while proffering and that there was no basis for imputing the alleged conflict to any other attorneys.
See Triana v. United States, 205 F.3d 36, 43 (2d Cir. 2000). Moreover, there is no indication from the record that a conflict
“adversely affected [any of the] counsel[s’] performance.” United States v. Schwarz, 283 F.3d 76, 91 (2d Cir. 2002).
Accordingly, we find that the District Court did not err in denying Bright’s motion.
                                                             5
113, both because that mistake was rendered inconsequential by subsequent changes in the law and
also because the District Court made clear that it did not rely on the mandatory minimum
calculation in sentencing defendant. As a result, any arguable error was harmless. Accordingly, we
find no merit to Bright’s claim that he was improperly sentenced as a prior felony offender.

                                                   E.

        Bright also claims that the District Court’s sentence was substantively and procedurally
unreasonable. We review all sentences using an abuse-of-discretion standard. See United States v.
Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc). Our review typically consists of a two-step
process. First we “must [ ] ensure that the district court committed no significant procedural error,
such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines
as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen sentence—including an explanation for
any deviation from the Guidelines range.” Gall v. United States, 552 U.S. 38, 51 (2007). “[W]e then
review the substantive reasonableness of the sentence, reversing only when the trial court’s sentence
‘cannot be located within the range of permissible decisions.’” United States v. Dorvee, 616 F.3d 174,
179 (2d Cir. 2010) (quoting Cavera, 550 F.3d at 189).

        Having reviewed the record in light of these principles, we conclude that the District Court
did not abuse its discretion in imposing Bright’s sentence. To the extent that the District Court
erred in miscalculating Bright’s mandatory minimum sentence, it was harmless, because as noted
above, the District Court was clear that the mandatory minimum calculation would not have an
effect upon its sentence. See United States v. Coppola, 671 F.3d 220, 251 & n.28 (2d Cir. 2012) (noting
that any error in calculating the Guidelines was “harmless because the district court would certainly
[have] impose[d] the challenged sentence in any event”); United States v. Jass, 569 F.3d 47, 68 (2d Cir.
2009).

                                           CONCLUSION

        We have considered all of defendant’s arguments on appeal and find them to be without
merit. We dismiss Bright’s ineffective assistance claims, without prejudice to their being raised in a
petition for habeas corpus pursuant to 28 U.S.C. § 2225. Accordingly, we AFFIRM the December
19, 2011 judgment of conviction of the District Court.

                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk




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