18-2040 (L)
United States v. Olivera & Lopez


                                   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 19th day of December, two thousand nineteen.

PRESENT:
           DENNIS JACOBS,
           SUSAN L. CARNEY,
           MICHAEL H. PARK,
                       Circuit Judges.
_________________________________________

UNITED STATES OF AMERICA,

                  Appellee,

                           v.                                            Nos. 18-2040,
                                                                              18-2077
JUDIE OLIVERA, GIBRON LOPEZ,

                 Defendants-Appellants,

VICTOR MONGE,

           Defendant.
_________________________________________

FOR APPELLEE:                                       CHRISTOPHER J. DIMASE (Gina
                                                    Castellano, Won S. Shin, on the brief),
                                                    Assistant United States Attorneys, Of
                                                   Counsel for Geoffrey S. Berman, United
                                                   States Attorney for the Southern District
                                                   of New York, New York, NY.

FOR DEFENDANTS-APPELLANTS:                         ANDREW LEVCHUK, Andrew Levchuk,
                                                   Counselor at Law LLC, Amherst, MA (for
                                                   Judie Olivera).

                                                   ARZA FELDMAN, Feldman & Feldman,
                                                   Uniondale, NY (for Gibron Lopez).

       Appeal from the judgments of the United States District Court for the Southern
District of New York (Failla, J.).

       UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgments entered on June 27, 2018, and June
29, 2018, are AFFIRMED.

       Defendants-Appellants Judie Olivera and Gibron Lopez appeal from the judgments
entered by the District Court after a jury convicted them of conspiracy to commit a Hobbs
Act robbery and Hobbs Act robbery under 18 U.S.C. § 1951. The District Court sentenced
Olivera and Lopez each primarily to 480 months’ imprisonment. Both timely appealed.

       The evidence at trial showed, and a jury could reasonably have found, that in May
2012, Olivera and Lopez, along with codefendant (and, later, cooperator) Victor Monge,
robbed Miles Klein at Klein’s apartment in the Bronx, New York. Olivera planned and
directed the robbery. During the robbery, Lopez and Monge beat Klein brutally with a
wrench and a mallet. Soon after, Klein died from his injuries.

       Pursuant to a plea agreement, Monge testified against his codefendants at their trial.
Confidential informant Miguel Fernandez also testified at trial, recounting statements made
to him by Lopez about the Klein robbery. 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 the District Court’s judgments.




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   1. Olivera

       Olivera makes three main arguments on appeal. She first challenges the District
Court’s decision to allow into evidence, under the hearsay exception for statements against
penal interest, Fernandez’s testimony about statements made to him by Lopez. See Fed. R.
Evid. 804(b)(3). Fernandez recounted to the jury Lopez’s out-of-court description to him of
the Klein robbery. Olivera challenges the admission of those parts of Lopez’s statements
discussing her involvement, arguing primarily that the District Court did not analyze those
statements with sufficient granularity—i.e., statement by statement—to meet the standards
set by Rule 804(b)(3) for admission.

       Rule 804(b)(3) defines an admissible statement against penal interest as one that:

       (A) a reasonable person in the declarant’s position would have made only if the
           person believed it to be true because, when made, it . . . had so great a
           tendency . . . to expose the declarant to civil or criminal liability; and
       (B) is supported by corroborating circumstances that clearly indicate its
           trustworthiness, if it is offered in a criminal case as one that tends to expose
           the declarant to criminal liability.
Fed. R. Evid. 804(b)(3). We discuss both elements below in relation to the challenged
statements. Our review of a District Court’s evidentiary rulings is for abuse of discretion.
United States v. Nektalov, 461 F.3d 309, 318 (2d Cir. 2006) (“We review evidentiary rulings for
abuse of the district court’s broad discretion, reversing only when the court has acted
arbitrarily or irrationally.” (internal quotation marks omitted)).

       Regarding (A), exposure to liability: Olivera does not dispute that, as a whole, Lopez’s
statements to Fernandez exposed Lopez to criminal liability. Instead, Olivera contends that
the District Court did not comply with the directive in Williamson v. United States that the
“district court may not just assume for purposes of Rule 804(b)(3) that a statement is self-
inculpatory because it is part of a fuller confession . . . .” 512 U.S. 594, 601 (1994). Olivera
asserts that the District Court failed to perform the required particularized analysis for each
of Lopez’s statements, see United States v. Ojudun, 915 F.3d 875, 886 (2d Cir. 2019), and that
those individual statements that concerned Olivera did not inculpate Lopez.




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       We are satisfied that the District Court adequately performed such a particularized
analysis. It had before it the statement-by-statement descriptions of Fernandez’s expected
testimony provided in the government’s motion in limine. See Olivera App’x 37-38 (listing the
statements). In an oral presentation, the District Court assessed each proposed statement,
Olivera App’x 121-26, and reasonably determined that the statements, including those
primarily regarding Olivera, were sufficiently inculpatory of Lopez to warrant admission
under Rule 804(b)(3). The statements helped explain the motive for the crime, the mechanics
of the crime, and the link from Lopez to Klein via Olivera, all of which tended to expose
Lopez to criminal liability. We agree with the District Court that the statements were
inculpatory.

       Regarding (B), reliability: Olivera argues that the District Court did not adequately vet
Lopez’s statements to Fernandez for trustworthiness. None of the statements that Lopez
made to Fernandez regarding Olivera suggested a lack of trustworthiness, however. In his
declarations, Lopez did not attempt to “minimize his own culpability, shift blame onto
[someone else], or curry favor with authorities.” United States v. Williams, 506 F.3d 151, 155
(2d Cir. 2007). Lopez made the statements not to the “authorities,” id., but to Fernandez, a
person he “believed was an ally,” United States v. Dupree, 870 F.3d 62, 80 (2d Cir. 2017)
(brackets and internal quotation marks omitted). In addition, Lopez’s account as retold by
Fernandez was corroborated by substantial evidence, including Monge’s testimony,
surveillance video, and phone records connecting Olivera to Klein. See id. at 80 (listing
corroborating evidence).

       Both elements (A) and (B) having been satisfied, we see no basis for disturbing the
District Court’s decision to admit the challenged parts of Fernandez’s testimony under
Rule 804.

       Second, Olivera asserts that the District Court erred in denying Olivera’s motion
under Federal Rule of Criminal Procedure 14(a) to sever her trial from Lopez’s. Olivera
argues that she suffered unfair spillover prejudice from having the jury hear evidence of
Lopez’s uncharged acts, in particular the evidence of Lopez and Fernandez’s 2014 planned
“sting” robbery, with which Olivera was not involved.

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       The decision “[w]hether to grant or deny a severance motion is committed to the
sound discretion of the trial judge . . . [and] [t]he district court’s exercise of that discretion is
virtually unreviewable.” United States v. Salameh, 152 F.3d 88, 115 (2d Cir. 1998) (internal
quotation marks and citations omitted). Olivera’s assertions on appeal that the jury may have
assumed erroneously from Fernandez’s evidence that she participated in the planning of the
2014 sting robbery are not persuasive: they are “entirely too speculative and generalized, and
[] fall[] far short of demonstrating an abuse of discretion or a miscarriage of justice.” United
States v. Cacace, 796 F.3d 176, 192 (2d Cir. 2015) (per curiam). Moreover, Fernandez testified
at trial that he had never met Olivera, further undercutting any possible implication that she
was involved in the 2014 plan. We identify no abuse of discretion here.

       Third, Olivera argues that her sentence of 480 months was substantively
unreasonable, particularly when compared to that imposed on Lopez, who also received a
480-month sentence but who, unlike Olivera, beat Klein to death. We review the substantive
aspects of a sentence for abuse of discretion. United States v. Ulbricht, 858 F.3d 71, 129 (2d
Cir. 2017). The Guidelines sentence for Olivera was life, based on a Total Offense Level of
43 and a Criminal History Category of I; each of her two counts of conviction carried a 240-
month maximum sentence. In light of the trial record, we cannot conclude that the District
Court erred in deciding at sentencing that Olivera planned the robbery and that Olivera was
aware ahead of time that Lopez and Monge brought with them at least one of the weapons
with which they later beat Klein. Since the sentence imposed was within the applicable
Guidelines range and rested on adequately grounded findings, we cannot say that the District
Court abused its broad discretion in imposing the sentence that it chose.

       We therefore affirm Olivera’s conviction and sentence.

   2. Lopez

       Lopez presents three challenges to the District Court’s evidentiary rulings. Each
focuses on an alleged violation of Federal Rule of Evidence 404(b). That Rule reads in
relevant part as follows:
       (b) Crimes, Wrongs, or Other Acts.



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       (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible
           to prove a person’s character in order to show that on a particular occasion
           the person acted in accordance with the character.
       (2) Permitted Uses . . . This evidence may be admissible for another purpose,
           such as proving motive, opportunity, intent, preparation, plan, knowledge,
           identity, absence of mistake, or lack of accident.

Fed. R. Evid. 404. In this Circuit, “[w]hen reviewing the admission of evidence pursuant to
Rule 404(b), 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.
McCallum, 584 F.3d 471, 475 (2d Cir. 2009) (internal quotation marks omitted). Below, we
discuss each argument under this framework. As noted earlier, our review of a district court’s
evidentiary rulings is for abuse of discretion.
       First, Lopez argues that it was reversible error under Rule 404 for the District Court
to allow Monge to testify at trial about the fact that, before the Klein robbery, he and Lopez
were each dealing marijuana individually while living in Olivera’s apartment. Lopez maintains
primarily that the evidence is irrelevant to the charged crimes, addressing the second
component of our Rule 404(b) review. As the government argues, however, this evidence
was relevant to showing a relationship of trust among Olivera, Lopez, and Monge, as well as
to establishing how their criminal relationship developed. United States v. Rosa, 11 F.3d 315,
334 (2d Cir. 1993) (“[I]t is within the court’s discretion to 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.”). We therefore identify no abuse of discretion in
the District Court’s ruling.

       Second, Lopez challenges the District Court’s admission of Fernandez’s testimony
that, before the Klein robbery took place, Fernandez had sold drugs to Lopez for resale.
Lopez again argues that this evidence was irrelevant to his crime of conviction. As the
government points out, however, Fernandez’s testimony provided context for Lopez’s



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admission that the money that he used to pay Fernandez in the summer of 2012 for a drug
debt consisted of, at least in part, proceeds from a robbery. The fact of the drug debt spoke
to a possible motive for the Klein robbery. United States v. Romero-Padilla, 583 F.3d 126, 130
(2d Cir. 2009) (per curiam) (“Although the evidence did not concern the charged conspiracy,
it was relevant background evidence inasmuch as it . . . established that [the defendant’s]
participation in the charged conspiracy was at least in part motivated by his desire to acquire
the funds necessary to complete the other contemplated transactions . . . .”). We agree, and
decide that the District Court did not err.

       Third, Lopez challenges the District Court’s admission of evidence taken from a
December 2014 recording of Lopez and Fernandez discussing the potential sting robbery.
Lopez argues that the portions of the conversation regarding the potential sting robbery
must be excluded as irrelevant. Those portions include certain admissions by Lopez about
the 2012 Klein robbery, however, and these statements are introduced by Fernandez’s
references to “last time.” Lopez App’x 68-69 (“last time you told me they saw you”; “last
time you didn’t even use a ski mask”). The meaning of the admissions about the 2012 Klein
robbery—the “last time”—are best understood in the context of the planned 2014 robbery,
i.e., in contrast to the possible “this time.” See United States v. Quinones, 511 F.3d 289, 309 (2d
Cir. 2007) (commenting on a similar admission to a crime that it “becomes clear only in light
of evidence” of uncharged and unrelated crimes). This evidence is therefore “inextricably
intertwined with the evidence regarding the charged offense.” United States v. Towne, 870 F.2d
880, 886 (2d Cir. 1989). Its admission was not error.

       Finally, Lopez urges as to all three challenged types of evidence that their probative
value was outweighed by their assertedly unfair prejudice to Lopez. Fed. R. Evid. 403 (“The
court may exclude relevant evidence if its probative value is substantially outweighed by a
danger of . . . unfair prejudice . . . .”). When the prior crimes are not “more sensational or
disturbing” than the charged crime, however, unfair prejudice (if any) is usually minimal.
United States v. Roldan-Zapata, 916 F.2d 795, 804 (2d Cir. 1990). None of the three types of
evidence discussed above was nearly as sensational as the robbery, beating, and subsequent



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death of Klein. All three types had substantial probative value. We therefore cannot say their
admission was an abuse of discretion.

                                               * * *

       We have considered all of Olivera’s and Lopez’s remaining arguments and conclude
that they are without merit. The District Court’s judgments are AFFIRMED.

                                                       FOR THE COURT:

                                                       Catherine O’Hagan Wolfe, Clerk of Court




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