In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18‐1187
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
JOEL RIVERA,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:17‐cr‐00057‐PP‐2 — Pamela Pepper, Judge.
____________________
ARGUED AUGUST 7, 2018 — DECIDED AUGUST 27, 2018
____________________
Before KANNE, SCUDDER, and ST. EVE, Circuit Judges.
PER CURIAM. A jury convicted Joel Rivera of aiding and
abetting a pair of Hobbs Act robberies and his friend’s use of
a firearm during them. The same jury, however, acquitted
him of, or deadlocked on, counts related to three other rob‐
beries. Rivera moved for a judgment of acquittal on the four
counts of conviction, arguing that the evidence was insuffi‐
cient to show that he knew in advance that his friend, Anto‐
nio Thomas, would commit the armed robberies or to show
2 No. 18‐1187
that he assisted Thomas during them. Alternatively, he asked
for a new trial on the ground that the jury should have disre‐
garded Thomas’s testimony—the key evidence at trial—be‐
cause Thomas was an unbelievable witness and the remain‐
ing evidence was too weak to support the convictions. Be‐
cause the evidence was sufficient and the district judge rea‐
sonably concluded that concerns about Thomas’s credibility
did not warrant a new trial, we affirm the judgment.
I. Background
After robbing five Milwaukee businesses in early 2017
over a brief two‐week period, Rivera and Thomas were
charged with five counts of Hobbs Act robbery, see 18 U.S.C.
§ 1951(a), and five counts of brandishing a firearm during a
crime of violence, see id. § 924(c)(1)(A)(ii). Their paths then di‐
verged. Rivera opted for a jury trial, while Thomas pleaded
guilty and testified in exchange for leniency.
We review the evidence presented at Rivera’s trial with a
focus on Thomas’s testimony. Rivera met Thomas, who was
homeless at the time, in December 2016 and offered to let him
stay at the apartment that Rivera shared with his girlfriend,
Emily Zayas. Although Rivera told the police that he did not
know Thomas well, Zayas testified that the pair frequently
spent time together. Indeed, the call records for Thomas’s cell
phone showed multiple calls made between his phone and
Zayas and Rivera’s shared cell phone, including some imme‐
diately before and after the robberies.
A. The First Three Robberies: Two Taquerias and a
Subway Restaurant
On January 4, 2017, Rivera drove Thomas to
Taqueria Los Gallos in a silver Honda Odyssey van. Rivera
No. 18‐1187 3
then gave Thomas “a book bag” with clothes to wear and a
.9 mm pistol to use to rob the restaurant. Thomas, unmasked,
went in alone and got the cash. He met Rivera back in the car,
and they split the money.
The next day Rivera drove to Taqueria Aranda in the same
van, which was captured on the restaurant’s surveillance
video. As the pair discussed, Rivera went in first, posing as a
customer. He was followed by Thomas, face covered, and
armed with the same pistol as the day before. Rivera, still pre‐
tending to be a customer, laid on the ground and urged the
staff in Spanish to do the same to avoid being shot. Thomas
proceeded to get cash from a worker and left. Rivera returned
to the car a couple minutes later. Again, the pair took equal
shares of the $600 proceeds.
On January 9, they robbed a Subway. Rivera again drove
and went inside first. Rivera made eye contact with Thomas
when he entered the restaurant, a signal for Thomas to go
ahead with the robbery, and then “watch[ed] the front door”
for him during it. The surveillance video shows Rivera inside
the restaurant. After robbing the store, Thomas escaped
through the back door. The two met up in an alley, went back
to the car, and ultimately split the $700 cash.
B. 13th Street Family Dollar Store Robbery
Two days later, the duo robbed a Family Dollar store on
13th Street. Like before, Rivera drove. This time, though,
Thomas said that the robbery was “spontaneous” and he did
not remember discussing details. Rivera went in first, then
Thomas followed after “put[ting] on the equipment that he
gave me, the book bag” and with the same gun in hand that
4 No. 18‐1187
Rivera gave him. Thomas successfully demanded money us‐
ing the gun before he fled. Rivera met him at the van a couple
minutes later, and they divided the $300 cash. Thomas did not
see Rivera during the robbery, but Thomas said that he as‐
sumed that Rivera had been “keeping” customers at the back
of the store. The surveillance video shows Rivera wandering
the aisles and making a hand gesture toward customers at the
back of the store as he exits after the robbery.
C. Hampton Street Family Dollar Store Robbery
The last robbery took place a week later. Rivera drove to a
different Family Dollar store, located on Hampton Street,
with Thomas and Zayas. Thomas testified that “the robbery
was planned,” and Zayas was going to “steal some stuff” with
Thomas going in to rob the store after her. Rivera stayed in
the van; Zayas entered the store first, followed by Thomas,
who was wearing the same clothes as he had for the earlier
Family Dollar store robbery and carrying the same gun.
Thomas pointed the gun at two workers and demanded
money, while Zayas snagged a comforter and left. From the
cash register, a clerk gave Thomas dollar bills, some of which
had a tracker inside. As the trio pulled away, they heard ap‐
proaching police sirens, and Zayas figured out that a tracker
was hidden in the cash. She tossed the tracker out of the van
window, and they ditched the police. The flight path of the
van was captured on video by a surveillance camera. Thomas
and Rivera again split the robbery proceeds, and Thomas re‐
turned the gun to Rivera.
Zayas testified in exchange for dismissal of her then‐pend‐
ing charges. She said that Rivera drove them to the Fam‐
ily Dollar store in the van to “buy a comforter,” but she left
the store once she saw Thomas robbing it. As they fled, Zayas
No. 18‐1187 5
said that “a hysterical argument” erupted between the two
men about why Thomas unexpectedly robbed the store, and
Rivera tried to kick Thomas out of the car. After the robbery,
Zayas testified that she kicked Thomas out of her and Rivera’s
apartment. In an interview with police officers, Rivera gave a
different story about the Hampton Street robbery: only he and
Zayas went there together, he waited in the car, and when she
returned she told him that a robbery was happening.
An anonymous tip led the police to Thomas, and he was
arrested two days after the robbery of the Hampton Street
store. Thomas eventually confessed and in the process also
identified Rivera and Zayas as his accomplices. The police
went to arrest Rivera at his apartment, but he denied them
entry before officers arrived with a signed warrant. In the
meantime he hurriedly burned items in his bathroom.
The jury also heard testimony that cast doubt on Thomas’s
credibility. An officer testified that Thomas had falsely ac‐
cused his arresting officers of sexual assault. Thomas himself
acknowledged that he had trouble controlling his behavior,
had heard voices and seen “things that weren’t there,” and
had heavily used marijuana and cocaine until his arrest. He
also explained that he hoped to gain leniency for testifying
but had not been promised anything. Thomas admitted that
he had been “lying the whole time” to the police before he
decided to cooperate, once he “figured out that [he] was going
to do all these years in prison.” Initially, he had told the police
that Rivera had forced him to commit the robberies by kid‐
napping him and threatening to kill his sister and brother. Fi‐
nally, Thomas got upset when Rivera’s counsel pressed him
about Rivera’s involvement in the robberies. At first Thomas
6 No. 18‐1187
said that Rivera was a necessary participant because he sup‐
plied the van and that they split the proceeds equally because
of that and because Rivera had given him “a place to stay.”
He later backtracked, however, contending that Rivera had
pointed a gun at his head and essentially threatened him into
helping with the robberies. At that point Thomas became so
flustered on the stand that the judge called a recess.
At the close of the government’s case and the trial’s end,
Rivera moved for a judgment of acquittal on all counts. The
court denied the motion both times. The jury then returned a
split verdict: it found Rivera not guilty on both counts for the
Taqueria Los Gallos robbery and on the firearm count for the
Taqueria Aranda robbery; it could not reach a verdict on the
robbery count for the Taqueria Aranda robbery or on both
counts for the Subway robbery; and it found him guilty on the
four counts for the two Family Dollar store robberies and
found that a firearm was brandished during both of them.
After the verdicts, Rivera again moved for a judgment of
acquittal, see FED. R. CRIM. P. 29(c), and also for a new trial,
see FED. R. CRIM. P. 33, on the four counts of conviction.
Thomas’s testimony, he emphasized, was insufficient to es‐
tablish his knowledge that the robberies or firearm use would
occur or that he did anything to facilitate them. Rivera argued
that the evidence showed only his “[m]ere presence” and
“[a]ssociation” with Thomas, neither of which sufficed to con‐
vict him. As for his new‐trial motion, Rivera urged the court
to “discount” Thomas’s testimony because of his lies to the
police, contradictory trial testimony, and “meltdown” during
cross examination.
The district judge denied Rivera’s motion for a new trial,
concluding that, although Thomas was “untruthful” at times,
No. 18‐1187 7
he could be partially credited. Rejecting Rivera’s arguments
to set aside Thomas’s testimony, she gave four reasons: (1) the
jury observed Thomas and knew about his “mental health
problems”; (2) his demeanor at trial, including his “melt‐
down,” did not necessarily mean that he was lying; (3) he had
admitted that he lied to the police; and (4) his testimony was
largely corroborated by other evidence—specifically, the sur‐
veillance footage that supported Thomas’s testimony that Ri‐
vera was present, as well as Zayas’s testimony about the last
robbery that mostly matched Thomas’s account.
As for the motion for a judgment of acquittal, the judge
determined that the evidence was sufficient on all counts,
pointing primarily to the sheer unlikelihood that Rivera was
present for the multiple robberies by accident. She observed
that even if Rivera did not know Thomas’s exact plans for the
last two robberies, he knew that Thomas would rob the stores
and use a gun, as he had before. She added that Rivera had “a
pattern of conduct” during the robberies—he went inside first
and kept an eye on Thomas. Finally, the judge pointed to sev‐
eral circumstantial pieces of evidence that, with the other ev‐
idence, supported his guilt: (1) the hand gesture captured on
video at the 13th Street robbery; (2) the calls between
Thomas’s and Rivera’s phones; (3) Thomas’s presence at Ri‐
vera’s home and their use of marijuana together; and (4) Ri‐
vera’s rush to burn things before the police arrived with an
arrest warrant at his home.
The district judge sentenced Rivera to 432 months’ impris‐
onment total—48 months for the robbery counts consecutive
to the required minimums of 84 months for the first firearm
count and 300 months for the second. In calculating the guide‐
line range, she twice declined to rely on Thomas’s testimony
8 No. 18‐1187
when it was uncorroborated: (1) she did not apply a 2‐level in‐
crease for physical restraint based on Thomas’s belief that Ri‐
vera held customers at the back of the first Family Dollar
store; and (2) she did not include the Taqueria Los Gallos rob‐
bery as relevant conduct because no video evidence linked Ri‐
vera to it. With the Taqueria Aranda and Subway robberies,
however, she concluded that the videos supported Thomas’s
testimony that Rivera participated in the robberies.
II. Analysis
On appeal Rivera challenges the decisions on his motion
for judgment of acquittal and motion for a new trial.
A. Rule 29(c) Motion for Judgment of Acquittal
We review de novo a ruling on a motion for judgment of
acquittal. United States v. Conley, 875 F.3d 391, 397 (7th Cir.
2017). We will not “reweigh the evidence or invade the jury’s
province of assessing credibility,” and will overturn the ver‐
dict only if “the record contains no evidence, regardless of
how it is weighed, from which the jury could find guilt be‐
yond a reasonable doubt.” United States v. Peterson, 823 F.3d
1113, 1120 (7th Cir. 2016) (quoting United States v. Pribble,
127 F.3d 583, 590 (7th Cir. 1997)).
Rivera maintains that the evidence was insufficient to con‐
vict him as an aider and abettor of the two Family Dollar store
robberies and of the firearm use for those robberies. Aiding
and abetting requires that a person both (1) act in furtherance
of the offense (2) with the intent to help the offense’s commis‐
sion. Rosemond v. United States, 134 S. Ct. 1240, 1245 (2014). As
for the firearm counts, a person also must know in advance
that a gun will be used. Id. at 1249.
No. 18‐1187 9
1. 13th Street Family Dollar
Store Robbery
Rivera contends that the evidence established only that he
went with Thomas to the 13th Street Family Dollar store and
was inside when that robbery happened. He emphasizes that
Thomas characterized the robbery as “spontaneous,” that
Thomas prepared for it only after Rivera went into the store,
and that Rivera could not see Thomas from his location in the
store. His discussion, though, highlights the evidence that
was favorable to him and ignores the rest.
Thomas’s testimony alone sufficed to establish Rivera’s
guilt on both the robbery and firearm counts for the robbery
at the 13th Street Family Dollar store: he testified that Rivera
drove to and from the store, that they agreed beforehand that
Rivera would keep customers at the back of the store, that
Thomas used the clothing and the gun that “he gave me” (the
“he” referring to Rivera), and that the pair split the money
afterwards. From that testimony, the jury could have con‐
cluded that Rivera intended to aid Thomas in robbing the
store at gunpoint, that he assisted the robbery by providing
the gun and clothing and by driving to and from the store,
and that he knew in advance that the gun would be used. Be‐
cause we conclude that the jury could have decided that Ri‐
vera aided the robbery either by outfitting Thomas or by driv‐
ing, we need not address Rivera’s argument that the evidence
was too thin to support a conclusion that he facilitated the
robbery by “keeping” customers at the back of the store.
Moreover, Rivera wrongly faults the district judge for
thinking that, in light of the three previous robberies, it was
unlikely that he was a mere bystander at the 13th Street Fam‐
ily Dollar store. The jury did not need to look at the evidence
10 No. 18‐1187
for each robbery “in isolation from the others”; it could con‐
sider evidence of Rivera’s actions during the other robberies
to infer reasonably that Rivera participated in the robbery at
the 13th Street Family Dollar store. United States v. Betts‐Gas‐
ton, 860 F.3d 525, 533 (7th Cir. 2017), cert. denied, 138 S. Ct. 689
(2018). That evidence, including Thomas’s testimony about
the three other robberies and the surveillance video that
placed Rivera at two of them, made a coincidental encounter
or even a spontaneous robbery seem highly unlikely. For the
third consecutive robbery, an identical pattern ensued: Rivera
entered first; Thomas followed; Rivera stayed inside while
Thomas robbed the location; Thomas used the same gun to
demand money; and Rivera left shortly after Thomas.
2. Hampton Street Family Dollar Store Robbery
As to the last robbery at the Hampton Street Family Dollar
store, Rivera unpersuasively contends that the evidence was
even thinner because Thomas did not testify about a plan to
rob the store (only that Zayas was going to steal household
goods) or that Rivera knew about that plan. First, Rivera over‐
looks that Thomas testified during cross examination (albeit
somewhat imprecisely) that the robbery was “planned,” and
that the plan included both Zayas stealing merchandise and
Thomas robbing the store. Although Rivera responds that any
notion of a preplanned robbery is undercut by Zayas’s testi‐
mony that a “hysterical argument” erupted after the robbery,
the jury instead could have credited Thomas’s account that
did not include any quarrel in describing the same getaway
and that characterized the robbery as “planned.”
Even if the jury did not believe that there was an explicit
robbery plan, the jury could have concluded nonetheless that
Rivera knew that Thomas would rob the store and assisted it
No. 18‐1187 11
anyway. By the time of the robbery at the Hampton Street
Family Dollar store, Rivera had been present for four recent
others. He points out that this last robbery did not precisely
match the “pattern of conduct” that the district judge identi‐
fied, because Rivera never went inside the store, as he had for
three of the prior robberies. But, on the whole, the evidence
sufficed for the jury to determine that the robbery was similar
enough to the other recent robberies that Rivera’s presence
was not a mere coincidence: Rivera drove to and from the
store; Thomas wore the same clothes and carried the same
gun that Rivera had given him for the other robberies;
Thomas and Rivera again split the proceeds; and this time Za‐
yas fulfilled Rivera’s role as the innocent customer.
Furthermore, police officers testified that Rivera initially
lied about knowing Thomas and said only he and Zayas had
driven to the Hampton Street Family Dollar store together.
The jury was entitled to conclude that these lies, especially
when coupled with Rivera’s hurry to burn items in his bath‐
room after he denied police entry into his home, evinced Ri‐
vera’s guilt. See United States v. Mbaye, 827 F.3d 617, 620
(7th Cir. 2016).
We turn now to the firearm count for this robbery, which
requires that Rivera knew in advance that Thomas would use
a gun in the robbery. Although this count presents a closer
question, we conclude that the evidence—which was largely
circumstantial—still was sufficient to support Rivera’s con‐
viction. See United States v. Moore, 572 F.3d 334, 337 (7th Cir.
2009) (“A verdict may be rational even if it relies solely on cir‐
cumstantial evidence.”). As Rivera points out, Thomas’s testi‐
mony about this last robbery was less clear than for the oth‐
ers—he did not explicitly testify that Rivera gave him the gun
12 No. 18‐1187
before he went inside or that they agreed to an armed robbery.
As we just described, however, the robbery of the Hamp‐
ton Street Family Dollar store had many similarities to the
other armed robberies that took place over a short two‐week
period that Thomas testified he and Rivera agreed to, making
it increasingly doubtful that Thomas decided to commit an‐
other armed robbery without involving Rivera. Moreover,
Thomas testified that he used the same gun in each robbery,
that the gun was Rivera’s, and that after each robbery—in‐
cluding the last—he returned the gun to Rivera. These facts
supported an inference that Rivera did supply Thomas with
the gun or knew Thomas had it before he entered the store.
What is more, the jury’s split verdict reflects its willing‐
ness to consider carefully the evidence on each count.
See United States v. Davis, 724 F.3d 949, 956–57 (7th Cir. 2013).
This is not a case in which we are concerned that the jury con‐
victed Rivera on the four counts for the two robberies solely
because they found the evidence impossible to parse and
evaluate on a count‐for‐count basis.
B. Rule 33 Motion for New Trial
In considering a motion for a new trial, a district judge
may assess the credibility of the witnesses and “may grant a
new trial if the verdict is so contrary to the weight of the evi‐
dence that a new trial is required in the interest of justice.”
Conley, 875 F.3d at 399. “[B]ecause the district court judge is
best positioned to make this determination,” our review for
abuse of discretion is “highly deferential.” Id.
Rivera argues that a new trial is necessary because
Thomas’s testimony is “incredible,” and he raises two partic‐
ular challenges to the judge’s decision. At the outset, Rivera
No. 18‐1187 13
criticizes the judge for engaging in a piecemeal analysis of
Thomas’s testimony instead of considering his lies and con‐
tradictions as a whole to determine if they “left a strong
doubt” about Rivera’s guilt. But Rivera himself lists seven
parts of Thomas’s testimony that, he says, demonstrates
Thomas’s “unreliability,” so it is unclear why he faults the dis‐
trict judge for analyzing Thomas’s testimony in a similar fash‐
ion. Moreover, to the extent that the judge commented on spe‐
cific parts of Thomas’s testimony, she was responding to Ri‐
vera’s arguments. She, for example, concluded that Thomas
had a “meltdown” as a result not of lying, but rather of being
frustrated with counsel’s questions. She also thought it signif‐
icant that Thomas admitted that he had lied to the police and
explained why. Those conclusions were only part of her even‐
tual determination that Thomas’s testimony could be partially
credited.
Rivera also challenges the district judge’s reasoning as in‐
sufficient because she did not review the evidence to see if it
corroborated the details of Thomas’s testimony necessary to
convict him. Yet the judge did address evidence she viewed
as bolstering Thomas’s testimony, pointing primarily to Za‐
yas’s testimony and the surveillance videos. As we described
when discussing the sufficiency of the evidence, the other ev‐
idence of collaboration between Rivera and Thomas was am‐
ple.
With this in mind, the judge said enough to establish that
she agreed with the jury’s decision to credit portions of
Thomas’s testimony. She addressed Rivera’s arguments and
explained her reasons for still thinking Thomas was telling
14 No. 18‐1187
the truth in enough respects. We cannot say that her decision
to deny the motion for a new trial was unreasonable.
AFFIRMED