United States v. Villafranca ( 2001 )

Revised August 20, 2001
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40593
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAMON AMADO VILLAFRANCA,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
July 25, 2001
Before HIGGINBOTHAM and BENAVIDES, Circuit Judges, and LITTLE,*
District Judge.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Ramon Amado Villafranca, a state-court prosecutor from Laredo,
Texas, appeals his conviction and sentence under the Hobbs Act for
fixing drug cases. He argues that his conduct bore no nexus to
interstate commerce sufficient to create federal jurisdiction or
establish a Hobbs Act violation; that the testimony of the
government’s paid informant should not have been admitted; and that
his sentence was improperly calculated under the Sentencing
Guidelines. Although the district court erred in failing to give
*
District Judge of the Western District of Louisiana, sitting by
designation.
a specific instruction cautioning the jury about the testimony of
the paid informant, the error was harmless. We affirm the judgment
of the district court.
I
As an Assistant State District Attorney in Laredo, Webb
County, Texas, defendant Ramon Villafranca was in charge of the
Drug Impact prosecutions in the local district court. In 1996, the
FBI, as part of an investigation of public corruption in Webb
County, hired Jimmy Salas as a cooperating witness. He was hired
to work as a bounty hunter for bail bonding companies, a position
often used as an intermediary between defendants seeking to get
their cases fixed and public officials. Salas was paid $1,500 a
month and given a small apartment. The apartment was constantly
monitored, and Salas was also given recording equipment, which he
used during the investigation. His contract also stipulated that
the FBI would “consider paying SALAS a lump sum payment in an
amount to be determined solely by the FBI for his cooperation and
the information derived from such. The amount of any lump sum, if
any, will be determined by considering factors such as the value of
the information provided by SALAS.”
Salas worked in this undercover role from 1996 to 1998.
During the course of the investigation, Salas was approached by
numerous defendants facing drug charges who wanted to get their
cases fixed. When Salas first approached Villafranca regarding
2
such a request, Villafranca said he could take care of it and
inquired about how much money the defendant had. After that, Salas
worked with Villafranca and a local defense attorney, Ruben Garcia
in numerous cases. Villafranca and Garcia would agree that Garcia
would take an inflated defense fee from the defendant and split it
between himself and Villafranca in return for getting a defendant
pretrial diversion, probation, or dismissal of the charges.1
Villafranca would usually take two or three thousand dollars per
case.
Villafranca, along with others, was indicted for one count of
conspiracy to obstruct, delay, and affect commerce by means of
extortion in violation of the Hobbs Act and three counts of
obstructing, delaying, and affecting commerce by means of extortion
in violation of the Hobbs Act.2 After a trial at which Salas
testified and Garcia testified pursuant to a plea agreement, the
jury convicted Villafranca on the conspiracy count and acquitted
him on the other counts. The district court sentenced him to 63
months and fined him $10,000. Villafranca appeals.
II
1
In one case, a defendant caught transporting 121 pounds of marijuana
received deferred adjudication and a $1000 fine. In another case, Villafranca
got an indictment dismissed (without prejudice) in a case where the defendant was
charged with possession of about 700 pounds of marijuana.
2
See 18 U.S.C. § 1951 (2001).
3
Villafranca argues that there is insufficient nexus to
interstate commerce to establish federal jurisdiction or to
establish a violation of the Hobbs Act.3 As the Hobbs Act’s
required effect on interstate commerce is identical with the
requirements of federal jurisdiction under the Commerce Clause,
these two challenges requires only a single analysis.4 Since we
are reviewing a jury verdict, we view the evidence “in the light
most favorable to the verdict, inquiring only whether a rational
juror could have found each element of the crime proven beyond a
reasonable doubt.”5
While the effect of the defendant’s activity on interstate
commerce need only be slight,6 the effect on interstate commerce
must not be attenuated.7 This circuit has stated, “Criminal acts
directed toward individuals may violate section 1951(a) only if:
(1) the acts deplete the assets of an individual who is directly
and customarily engaged in interstate commerce; (2) [ ] the acts
cause or create the likelihood that the individual will deplete the
assets of an entity engaged in interstate commerce; or (3) [ ] the
3
See id.4
See United States v. Collins, 40 F.3d 95, 100 (5th Cir. 1994) (“[T]he
Hobbs Act definition of commerce is coextensive with the constitutional
definition.”).
5
United States v. Jennings, 195 F.3d 795, 801 (5th Cir. 1999).
6
See United States v. Box, 50 F.3d 345, 352 (5th Cir. 1995); United States
v. Tomblin, 46 F.3d 1369, 1382 (5th Cir. 1995); Collins, 40 F.3d at 99.
7
Collins, 40 F.3d at 100-01.
4
number of individuals victimized or the sum at stake is so large
that there will be some ‘cumulative effect on interstate
commerce.’”8
The result in this case is virtually compelled by the
reasoning of United States v. Box.9 In Box, this court noted that
detaining persons engaged in interstate travel created the effect
on interstate commerce necessary to sustain a conspiracy conviction
under the Hobbs Act.10 It also held that interfering with or
facilitating narcotics trafficking was sufficient to create an
effect on interstate commerce, since drugs are traded on an
interstate market.11 Most of the defendants that paid Villafranca
and Garcia to fix their cases were caught while traveling to and
from Mexico, and occasionally to and from other states. Many of
the defendants were engaged in the shipment of large quantities of
drugs. Thus, the extortion by Villafranca involved delaying or
expediting the movement of individuals across state and
8
Id. at 100.
9
50 F.3d 345 (5th Cir. 1995).
10
Id. at 352.
11
Id. at 353.
5
international lines and affected commerce in drugs.12 The
requirement of a nexus to interstate commerce is met in this case.13
III
A
Villafranca challenges the admission of the testimony of Salas
on the grounds that Salas was paid for providing information to the
government. In United States v. Cervantes-Pacheco,14 this court,
sitting en banc, ruled that the testimony of a paid witness was not
per se inadmissible.15 We recognized, however, that admitting the
testimony of a paid informant raises serious concerns about the
fairness of a trial. We therefore conditioned the admission of
such testimony on compliance with four rules: the government must
12
Although Box predates the watershed Supreme Court decision in United
States v. Lopez, 514 U.S. 549 (1995), this circuit has reaffirmed the expansive
application of the government’s commerce power in the Hobbs Act context and
related criminal law contexts. See United States v. Jennings, 195 F.3d 795, 801-
02 (5th Cir. 1999) (Hobbs Act); United States v. Meshack, 225 F.3d 556, 572-73
(5th Cir. 2000) (section 1956 money laundering); see also United States v.
Hickman, 179 F.3d 230, 231 (5th Cir. 1999) (en banc) (Higginbotham, J.,
dissenting from affirmance by equally divided court) (noting the reach of the
Hobbs Act to interstate travel and economic markets such as illegal drugs).
13
We do not address the government’s more questionable argument that
because state coffers were affected by the fixing of cases by Villafranca,
interstate commerce was thereby affected. Also, in fixing at least one case,
Salas negotiated a bribe over the phone with a defendant in Tennessee, and later
a receipt was sent to Tennessee by fax (presumably by Garcia). The use of
interstate commerce facilities implicates the Commerce Clause, see, e.g., United
States v. Marek, 238 F.3d 310, 317 (5th Cir. 2001) (en banc), but is not a type
of activity listed as falling within the Hobbs Act by our circuit, see United
States v. Collins, 40 F.3d 95, 100-01 (5th Cir. 1994).
14
826 F.2d 310 (5th Cir. 1987) (en banc).
15
See id. at 315-16.
6
not deliberately use or encourage perjured testimony; the
prosecution must comply with Brady; the defense must be allowed to
fully explore the compensation arrangement on cross-examination;
and the district court must give specific instructions to the jury
about the credibility of paid witnesses.16 Citing Cervantes-
Pacheco, Villafranca argues that the prosecution failed to comply
with Brady and that the district court failed to give the jury
specific instructions on Salas’s credibility.
Villafranca argues a Brady violation, claiming that although
the government disclosed the contract between Salas and the FBI
before trial, the government failed to disclose the size of the
bonus to be paid to Salas. Brady v. Maryland17 held that “the
suppression by the prosecution of evidence favorable to an accused
16
Id. at 315-16. Although the opinion in Cervantes-Pacheco stated that
the district court “should” give such an instruction, id. at 316, we went to say
that “we hold that the credibility of the compensated witness . . . is for a
properly instructed jury to determine.” Id. Subsequent cases confirm that
Cervantes-Pacheco requires a specific jury instruction on the credibility of the
paid witness. See United States v. Dukes, 139 F.3d 469, 476 (5th Cir. 1998)
(“[Cervantes-Pacheco] imposed restrictions on the admissibility of [paid]
testimony, including a requirement that the district court instruct the jury
specifically on the suspect credibility of a compensated witness.”); United
States v. Kaufman, 858 F.2d 994, 1005 (5th Cir. 1988) (“The trial judge in the
instant case instructed the jury that [the witness] was being paid by the
government as we required in Cervantes-Pacheco.”); United States v. Goff, 847
F.2d 149, 161 (5th Cir. 1988) (“[T]he trial court must give the jury careful
instructions pointing out the suspect credibility of a fact witness who has been
or expects to be compensated for his testimony.”); United States v. Rizk, 833
F.2d 523, 525 (5th Cir. 1987) (“The testimony of an informant to whom the
government has promised a fee is admissible if . . . the trial court, in
instructing the jury, has pointed out the suspect credibility of a fact witness
who has been compensated for his testimony.”).
17
373 U.S. 83 (1963).
7
upon request violates due process where the evidence is material.”18
Brady “requires that the prosecution disclose to the defense both
exculpatory evidence and evidence that would be useful for
impeachment.”19 To establish a Brady violation, Villafranca “must
show that (1) the prosecution suppressed evidence, (2) the evidence
was favorable to the defense, and (3) the evidence was material.”20
In this case, the prosecution did not suppress any evidence. At
trial, the testimony revealed only that Salas was likely to receive
a large bonus, but that the amount of the bonus had not yet been
determined. All of this information, except for the ballpark
amount of the bonus, appeared in the plain language of Salas’s
contract, which was disclosed before trial. At trial, the defense
was able to fully explore the meaning of the contract and the
likely bonus at trial.21 There was no Brady violation.
Villafranca also argues that the district court violated the
safeguards put in place by Cervantes-Pacheco by failing to “give a
careful instruction to the jury pointing out the suspect
credibility of a fact witness who has been compensated for his
18
Id. at 87.
19
Lawrence v. Lensing, 42 F.3d 255, 257 (5th Cir. 1995).
20
Id.21
See id. (holding that the evidence is suppressed only if it is not
revealed at or before trial).
8
testimony.”22 Villafranca is correct. Salas was a paid informant,23
and therefore under Cervantes-Pacheco the district court did not
have discretion to omit an instruction cautioning the jury about
his credibility. The district court gave only a general
instruction about weighing the credibility of each witness based
on, among other things, whether the witness has an incentive to
lie. This is not the sort of specific instruction described by
Cervantes-Pacheco.24 Failure to give specific instructions courts
reversal.
The contract between Salas and the government exemplifies the
unjust incentives that an agreement to pay an informant can create.
The contract created the danger of perjury in three ways: First, it
deferred payment of a bonus to Salas until after he testified,
thereby creating the possibility of withholding or reducing payment
if his testimony is unfavorable or insufficient to obtain a guilty
verdict. Second, the vague criteria for determining the amount of
22
Cervantes-Pacheco, 826 F.2d at 316.
23
Although the government argues that Salas was not a paid informant
within the meaning of Cervantes-Pacheco, Salas’s agreement with the government
is almost identical to the agreement the government struck with the informant in
Cervantes-Pacheco. In Cervantes-Pacheco, the witness’s “compensation from the
government included a per diem, expenses, and a payment at the conclusion of the
case based on the government’s evaluation of his overall performance.” See id.
at 311. The government concedes that the size of his bonus may depend on the
outcome of the prosecution. On cross-examination, FBI Agent Oscar Rodriguez
testified that Salas may be given a bonus of more than $100,000. Rodriguez
admitted that one factor that could affect the size of Salas’s bonus was the
outcome of the prosecution.
24
This circuit provides a pattern jury instruction for testimony of an
alleged accomplice, paid informant, immunized witness. See Fifth Circuit Pattern
Jury Instructions: Criminal § 1.14 (1997). Villafranca requested a somewhat
different instruction.
9
the bonus allowed the government to consider the outcome of the
trial as a factor in determining Salas’s bonus. Third, the sheer
size of the possible bonus—upwards of $100,000—created an incentive
for the paid witness to ensure that he does nothing to jeopardize
the government’s willingness to deliver the bonus. Ideally,
contracts with paid informants would not defer so much of the
remuneration until after the witness testifies for precisely these
reasons. And while Salas’s contract may have protected the
government’s interest in a cooperative witness, the danger of
embellished testimony generated by dangling such a plump carrot
before a critical witness is why this court requires rigorous
safeguards to protect the integrity and accuracy of the jury’s
fact-finding.
One of those safeguards, a special instruction to the jury,
was not employed in this case. Nonetheless, on the record in this
case, we find this error harmless. We will not conclude that an
error is harmless unless we determine that it is harmless beyond a
reasonable doubt.25 It is harmless only because Salas’s testimony
was so extensively and thoroughly corroborated by other witnesses’
testimony, documentary evidence, and tape recordings of the
conversations Salas had with Villafranca. The government
introduced over seventy tape recordings containing conversations
among Salas, Villafranca, and the other conspirators. These
25
See Fed. R. Crim. P. 52(a); Chapman v. California, 386 U.S. 18, 24
(1968).
10
recordings included statements by Villafranca himself inquiring
about bribe money and admonishing Salas to keep his activities
secret. The government presented corroborating testimony
describing how federal agents monitored the taping of Salas’s
conversations with Villafranca to ensure that Salas could not
tamper with the tape recorder. Ruben Garcia, as well as a co-
conspirator who made a payment to get his case fixed, testified for
the government. The extent of the corroboration of Salas’s
testimony convinces us beyond a reasonable doubt that the failure
to give a special jury instruction was harmless.26
B
Villafranca also claims that the testimony of Garcia should
not have been admitted because he had entered into a plea bargain
with the government. This contention has no merit. The district
court gave the jury a specific charge reminding the jury that
Garcia had pleaded guilty pursuant to an agreement with the
government that could give him a reduced sentence. The testimony
of a plea-bargaining defendant is admissible if the jury is
properly instructed.27
26
At oral argument, counsel for Villafranca could not identify any aspect
of Salas’s testimony, except Salas’s statements about his personal background,
that was not corroborated.
27
See Cervantes-Pacheco, 826 F.3d at 316; United States v. Haese, 162 F.3d
359, 366-68 (5th Cir. 1998).
11
IV
Villafranca also challenges his sentence. He first argues
that the PSR incorrectly applied U.S.S.G. section 2C1.1, the
Guideline for bribery and extortion, rather than section 2X1.1,
which covers attempts, conspiracies, and solicitation, when the
Guideline for the underlying substantive offense does not address
them.
The district court did err in applying section 2C1.1 rather
than section 2X1.1. Section 2C1.1 does not specifically include
conspiracy to extort, and thus section 2X1.1 applies.28 In
Villafranca’s case, however, this distinction makes no difference,
and the error is harmless. As section 2X1.1(a) states, the offense
level for conspiracy is the same as the base offense level of the
substantive offense, “plus any adjustments from such guideline for
any intended offense conduct that can be established with
reasonable certainty.”29 Thus, there is no difference between the
Guidelines calculation for conspiracy to extort and extortion when
the evidence accepted by the sentencing court shows that the
conspiracy’s objectives were actually completed.30 In this case,
28
See U.S.S.G. § 2X1.1(c)(1) (2000) (“When an attempt, solicitation, or
conspiracy is expressly covered by another offense guideline section, apply that
guideline section.”); U.S.S.G. § 2X1.1 Application note 1 (listing offense
Guidelines that expressly include conspiracy, but not listing § 2C1.1).
29
U.S.S.G. § 2X1.1(a) (2000).
30
See U.S.S.G. § 2X1.1 Application note 2 (2000) (“[T]he only specific
offense characteristics from the guideline for the substantive offense that apply
are those that are determined to have been specifically intended or actually
occurred.”); cf. U.S.S.G. § 2X1.1(b)(2) (“If a conspiracy, decrease by 3 levels,
12
the district court found that the bribes alleged by the government
were in fact completed.31 Thus, all of the adjustments applied by
the district court were proper.
Villafranca’s second argument assigns error to the upward
adjustment of eight levels because the offense involved a payment
to influence an official holding a high-level decisionmaking
position.32 He argues that since he was the official in the
decisionmaking position, he could not have paid money to himself.
This argument has no merit. The Guideline does not require that
the defendant have paid the money to the decisionmaking official;
instead, it merely requires that the offense involve a payment to
such an official. Villafranca’s culpability is no less because he
received, rather than made, the corrupt payment.
Finally, Villafranca argues that the upward adjustment of four
levels for having the role of organizer or leader was error. He
argues that the charge against Villafranca precludes the
participation of more than five individuals, which the Sentencing
Guidelines require in order to find that the defendant was an
unless the defendant or a co-conspirator completed all the acts the conspirators
believed necessary on their part for the successful completion of the substantive
offense.”).
31
The fact that Villafranca was convicted of conspiracy to violate the
Hobbs Act, but was acquitted for the separate counts of substantive violations
of (or attempt to violate) the Hobbs Act, does not preclude the sentencing court
from finding that all of the acts alleged in the indictment occurred. See United
States v. Branch, 91 F.3d 699, 742-43 (5th Cir. 1996).
32
See U.S.S.G. § 2C1.1(b)(2)(B) (2000) (“If the offense involved a payment
for the purpose of influencing an elected official or any official holding a
high-level decision-making or sensitive position, increase by 8 levels.”).
13
organizer or leader.33 This is incorrect. The indictment and the
district court’s findings at the sentencing hearing both describe
a conspiracy involving not only Villafranca and Garcia, but at
least twelve defendants with whom Villafranca and Garcia agreed to
fix cases.
V
The evidence was sufficient to establish jurisdiction and to
sustain Villafranca’s conviction under the Hobbs Act. The district
court erred in failing to give the special cautionary instruction
for paid informant testimony required by Cervantes-Pacheco.
However, the record establishes that this error was harmless beyond
a reasonable doubt. And although the court erred in applying
section 2C1.1 of the Sentencing Guidelines instead of section
2X1.1, this error was harmless. The conviction and sentence are
AFFIRMED.
33
See U.S.S.G. § 3B1.1(a) (2000).
14