United States v. Rivera

• Court: Court of Appeals for the Second Circuit
• Decided: June 3, 2024
• Docket: 22-2780
• Status: Unpublished

Opinion

22-2780-cr United States 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 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 3rd day of June, two thousand twenty-four.

Present:

RICHARD C. WESLEY, GERARD E. LYNCH, EUNICE C. LEE, Circuit Judges. _____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 22-2780-cr

JUSTIN RIVERA,

Defendant-Appellant. *

* The Clerk of Court is respectfully directed to amend the official caption as set forth above. _____________________________________

For Appellee: DANIEL H. WOLF (Thomas S. Burnett, Stephen J. Ritchin, on the brief), Assistant United States Attorneys, Of Counsel, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY.

For Defendant-Appellant: PETER J. TOMAO, Law Office of Peter J. Tomao, Garden City, NY.

Appeal from an October 13, 2022 judgment of the United States District Court for the

Southern District of New York (Paul A. Engelmayer, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

Appellant Justin Rivera (“Appellant”) appeals a judgment of conviction entered following

a jury trial in which he was found guilty of a single count of conspiracy to commit sex trafficking

by force, fraud, or coercion, in violation of 18 U.S.C. § 1594(c). He was sentenced to 252

months’ imprisonment, followed by five years’ supervised release. We assume the parties’

familiarity with the underlying facts, procedural history, and issues on appeal.

I. Sufficiency of the Evidence

Appellant first argues that the district court erred in denying his motion for a judgment of

acquittal under Federal Rule of Criminal Procedure 29 and his motion for a new trial under Rule

33 based on insufficient evidence. Where, as here, claims of insufficiency of the evidence are

preserved below, we review those claims de novo. United States v. Capers, 20 F.4th 105, 113 (2d

Cir. 2021). “[A] defendant challenging the sufficiency of the evidence that led to his conviction at trial bears a heavy burden, as the standard of review is exceedingly deferential.” United States

v. Coplan, 703 F.3d 46, 62 (2d Cir. 2012) (internal quotation marks and citations omitted). This

Court “must sustain the jury’s verdict if, crediting every inference that could have been drawn in

the government’s favor and 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.” Capers, 20 F.4th at 113 (internal quotation marks omitted and alterations adopted).

Ultimately, “[a] judgment of acquittal is warranted only if the evidence that the defendant

committed the crime alleged is nonexistent or so meager that no reasonable jury could find guilt

beyond a reasonable doubt.” United States v. Martoma, 894 F.3d 64, 72 (2d Cir. 2017) (quoting

United States v. Jiau, 734 F.3d 147, 152 (2d Cir. 2013)).

In challenging the sufficiency of the evidence, Appellant argues (1) that the government

failed to show that there was a specific agreement between Appellant and his co-conspirator

Lorenzo Randall, and (2) that there was insufficient evidence to support the jury’s finding of venue

in the Southern District of New York.

Appellant maintains that while he and Randall each operated a commercial sex business,

their operations were separate and even competing. However, “[a] conspiracy need not be shown

by proof of an explicit agreement but can be established by showing that the parties have a tacit

understanding to carry out the prohibited conduct.” United States v. Svoboda, 347 F.3d 471, 477

(2d Cir. 2003) (quoting United States v. Samaria, 239 F.3d 228, 234 (2d Cir. 2001)); United States

v. Henry, 325 F.3d 93, 105 (2d Cir. 2003) (“[E]vidence of a financial stake in the venture is not

essential to show that the defendant intended to facilitate the unlawful objective of the

conspiracy.”) (quoting United States v. Isabel, 945 F.2d 1193, 1203 (1st Cir.1991)).

3 Here, the evidence was sufficient to establish that there was an understanding between

Appellant and Randall to engage in a sex trafficking conspiracy. Appellant contends that they

trafficked different women as part of separate businesses and that his trafficking was limited only

to N.R. 2, a woman named in both Randall and Appellant’s indictments. The evidence, however,

showed that Appellant and Randall helped each other’s sex trafficking in multiple ways and that

both men trafficked N.R. and D.P., the other woman named in each of their indictments.

At trial, D.P., the woman more closely linked to Randall, testified that Randall referred to

Appellant as “the shooter”—the person who would “handle[] it” if an issue arose with clients

purchasing sex services. App’x at 604 (quoting Tr. 228). D.P. also testified that Appellant

stood armed as guard outside a motel room while Randall physically abused D.P., and that on

another occasion Appellant brandished a gun to scare away D.P.’s family when they tried to bring

her home. D.P. testified that after she was able to return home, Appellant and Randall tried to

persuade her to return and continue her sex work for Randall. Meanwhile, Appellant sought

advice from Randall on how to maximize profits and control N.R. N.R. also testified that after

Appellant was arrested and incarcerated, Randall acted as Appellant’s agent, driving N.R. to meet

with clients and telling her that he “wouldn’t do anything” in connection with N.R.’s sex work

“without . . . [Appellant’s] permission.” App’x at 606 (quoting Tr. 1255–58, 1269–71). Thus,

the jury was presented with sufficient evidence to conclude beyond a reasonable doubt that

Appellant had a “tacit understanding” with Randall to traffic the two women. Svoboda, 347 F.3d

at 477.

2 Although the parties and the district court referred to the women by their full names, we refer to them here only by their initials.

4 We are also unpersuaded by Appellant’s argument that there was insufficient evidence in

the record to support the jury’s venue finding. As the district court noted below, while most of

the evidence involved conduct in the Eastern District of New York, venue is not limited to the

district where the greatest amount of relevant conduct occurred. Appellant’s contention that

venue was lacking because the government did not present any evidence at trial showing that he

performed any acts within the Southern District of New York is simply wrong. Rather, venue for

a conspiracy charge is proper in any district in which an overt act in furtherance of the conspiracy

was committed by any conspirator. United States v. Tzolov, 642 F.3d 314, 319–20 (2d Cir. 2011).

The record details multiple instances that provided a basis for venue in the Southern District of

New York—including D.P.’s testimony that Randall took her to meet clients in Manhattan and the

Bronx.

II. Evidentiary Rulings

Next, Appellant argues that three of the district court’s evidentiary rulings denied him a

fair trial. He maintains that the district court erred in 1) admitting expert opinion testimony on

traumatic bonding; 2) limiting questions about N.R.’s previous history as a sex worker; and 3)

admitting evidence that N.R. was once kidnapped, even though that incident was unrelated to

Appellant’s sex trafficking charge. We review evidentiary rulings for abuse of discretion.

United States v. Ho, 984 F.3d 191, 207 (2d Cir. 2020).

First, we are not persuaded by Appellant’s challenge to the district court’s admission of the

government’s expert testimony about trauma bonding. This Court has held that a “trial judge has

broad discretion in the matter of the admission or exclusion of expert evidence, and [their] action

5 is to be sustained unless manifestly erroneous.” United States v. Brown, 776 F.2d 397, 400 (2d

Cir. 1985). The district court’s determination that Dr. Raghavan’s expert testimony was

sufficiently reliable under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993),

and would help jurors understand the background psychological concepts at play—including

trauma bonding and why a sex trafficking victim might express affection for their trafficker—was

not manifestly erroneous. Appellant argues that the expert’s testimony should not have been

allowed because her research focused on immigrant, teenage sex workers, and therefore could not

be reliably applied to women such as D.P. and N.R., who are not within either demographic. But

as the district court noted below, studies have found trauma bonding exists in individuals like D.P.

and N.R., and the defense cited no study showing that this phenomenon is limited to minors or

immigrant women.

Appellant also claims Dr. Raghavan’s underlying research suffers from several

deficiencies, including an unreliably small sample size and selection bias. But these arguments

go to the weight rather than admissibility of the testimony, and the jury was entitled to accept or

reject Dr. Raghavan’s testimony. Boucher v. U.S. Suzuki Motor Corp., 73 F.3d 18, 21 (2d Cir.

1996) (“Although expert testimony should be excluded if it is speculative or conjectural, or if it is

based on assumptions that are so unrealistic and contradictory as to suggest bad faith . . . , other

contentions that the assumptions are unfounded go to the weight, not the admissibility, of the

testimony.”) (internal quotation marks and citations omitted).

Finally, we reject Appellant’s claim that Dr. Raghavan’s testimony amounted to

impermissible witness bolstering. See Nimely v. City of New York, 414 F.3d 381, 395–96 (2d Cir.

2005) (an expert cannot “comment directly, under the guise of expert opinion, on the credibility

6 of trial testimony from” specific fact witnesses). Dr. Raghavan did not directly opine on the

credibility of D.P. or N.R.’s testimony, but rather provided general testimony about the dynamics

of sex trafficking relationships. Courts have routinely held that such background testimony is

not impermissible bolstering. See, e.g., United States v. Johnson, 860 F.3d 1133, 1141 (8th Cir.

2017) (explaining that an expert may testify “about how individuals generally react to sexual

abuse—[which] helps jurors evaluate the alleged victim’s behavior . . . [s]o long as the expert does

not impermissibly ‘vouch’ for the victim”).

We are also not persuaded that the district court erred in limiting questions about N.R.’s

history as a sex worker, which Appellant claimed was relevant to the jury’s determination of

whether Appellant coerced N.R. to engage in sex work. Under Federal Rule of Evidence 412(a),

in cases “involving alleged sexual misconduct,” “evidence offered to prove that a victim engaged

in other sexual behavior” and “evidence offered to prove a victim’s sexual predisposition” is

prohibited. This rule is subject to several narrow exceptions, including when “exclusion would

violate the defendant’s constitutional rights.” Fed. R. Evid. 412(b)(1)(C). That exception,

however, does not permit defendants to argue “that because the victim previously consented to

have sex [with persons other than the defendant]—for love or money—her claims of coercion

should not be believed.” United States v. Rivera, 799 F.3d 180, 185 (2d Cir. 2015). In other

words, evidence of an individual’s prior acts of sex work is irrelevant to whether that individual

was later coerced into such work. Id. After hearing arguments, the district court allowed

Appellant to pose a limited set of questions related to N.R.’s sex work independent of Appellant

during the time of the charged conspiracy, but barred questions related to the time period before

the charged conspiracy. That ruling by the district court was not an abuse of discretion, as it

7 represented a reasonable balancing of the probative value of the evidence Appellant sought to

introduce versus the substantial risk of a Rule 412 violation.

Finally, Appellant argues that the district court abused its discretion by admitting evidence

of N.R.’s kidnapping by a group of people who were trying to assault Appellant, as this incident

was not related to Appellant’s sex trafficking. But as the district court mentioned at sentencing,

Appellant’s efforts to return N.R. to his employ after the kidnapping “underscored the extent of

[Appellant’s] control over her.” App’x at 692. Admitting this evidence fell within the district

court’s discretion, and there was no unfair prejudice, as it was established during trial that

Appellant was not the perpetrator of the kidnapping but was an intended target alongside N.R.

III. Sentencing

Appellant contends that the district court procedurally and substantively erred in sentencing

him to 252 months’ imprisonment. We review a district court’s imposition of a sentence under a

“deferential abuse-of-discretion standard.” United States v. Cavera, 550 F.3d 180, 189 (2d Cir.

2008) (en banc) (quoting Gall v. United States, 552 U.S. 38, 41 (2007)). Procedural error

includes “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.” Gall, 552 U.S. at

51. However, when “the record indicates clearly that the district court would have imposed the

same sentence in any event, [a procedural] error may be deemed harmless, avoiding the need to

vacate the sentence and to remand the case for resentencing.” United States v. Jass, 569 F.3d 47,

68 (2d Cir. 2009) (internal quotation marks omitted).

Appellate review for substantive reasonableness “provide[s] a backstop for those few cases

8 that . . . would . . . damage the administration of justice because the sentence imposed was

shockingly high, shockingly low, or otherwise unsupportable as a matter of law.” United States

v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009). We “set aside a district court’s substantive

determination only in exceptional cases where the trial court’s decision cannot be located within

the range of permissible decisions.” United States v. Perez-Frias, 636 F.3d 39, 42 (2d Cir. 2011)

(internal quotation marks omitted).

Appellant first argues that his 252-month sentence was procedurally unreasonable because

the district court erroneously applied U.S.S.G. § 2G1.1(a)(1) instead of U.S.S.G. § 2G1.1(a)(2),

arriving at a Guidelines base offense level of 34 rather than 14. We need not decide whether the

district court erred in calculating Appellant’s offense level because the district court explicitly

stated that it would have imposed the exact same sentence even if it had adopted Appellant’s view

of the base offense level. Given that there exists an “alternative independent ground for the

challenged sentence,” any potential sentencing error would be harmless. Cavera, 550 F.3d at

197; see also Jass, 569 F.3d at 68 (explaining that error may be deemed harmless if the record

shows that the district court would have imposed the same sentence irrespective of the Guidelines

range).

Appellant also argues substantive unreasonableness based on his sentence being lengthier

than that of one of his co-defendants—as well as others sentenced for similar conduct—resulting

in unwarranted sentencing disparities. However, the district court explained at length why the

Section 3553(a) factors warranted the sentence it imposed for Appellant in comparison to others

convicted of similar conduct, including Appellant’s obstruction of justice even after his conviction,

his record of violent re-offenses while on parole, and his history of assaulting others. According

9 to the district court, these factors made him a “clear and present danger to society.” App’x at

713. In any case, Appellant’s term of incarceration is nine years below the bottom of the

Guidelines range, and it is “difficult to find that a below-Guidelines sentence is [substantively]

unreasonable.” Perez-Frias, 636 F.3d at 43.

IV. Restitution Order

Finally, Appellant argues that the district court erred in ordering Appellant to pay N.R. and

D.P. $86,000 in restitution pursuant to 18 U.S.C. § 1593, the restitution provision of the

Trafficking Victims Protection Act of 2000, Pub. L. No. 106-386, § 112, 114 Stat. 1464 (2000).

The statute requires restitution of the full amount of victims’ losses, including “the greater of the

gross income or value to the defendant of the victim’s services or labor.” 18 U.S.C. § 1593(b)(3).

Generally, “[w]e review awards of restitution for abuse of discretion.” United States v.

Desnoyers, 708 F.3d 378, 389 (2d Cir. 2013).

Appellant argues that the restitution order was improper because it required him to pay for

the “unlawful work” of commercial sex. Appellant’s Br. at 72. That argument has been rejected

in other cases, which have explained that “the express terms of 18 U.S.C. § 1593 require that the

victims in this case, i.e., persons who engaged in commercial sex acts within the meaning of 18

U.S.C. § 1591, receive restitution, notwithstanding that their earnings came from illegal conduct.”

United States v. Mammedov, 304 F. App’x 922, 927 (2d Cir. 2008) (summary order); see also

United States v. Fu Sheng Kuo, 620 F.3d 1158, 1164 (9th Cir. 2010) (“[T]he Trafficking [Victims

Protection] Act mandates restitution that includes a defendant’s ill-gotten gains.”).

* * *

We have considered Appellant’s remaining arguments and find them to be without merit.

10 Accordingly, we AFFIRM the judgment of conviction.

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