United States v. Henry Villa

FILED
NOT FOR PUBLICATION OCT 31 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-30080
Plaintiff - Appellee, D.C. No. 1:08-cr-30006 PA
v.
MEMORANDUM*
HENRY VILLA,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, District Judge, Presiding
Argued and Submitted May 5, 2011
Portland, Oregon
Submission Vacated and Deferred July 18, 2011
Resubmitted October 23, 2012
Before: TASHIMA, BEA, and IKUTA, Circuit Judges.
Henry Villa attacks his conviction on three principal grounds, and also
mounts an attack on his sentence. We conclude that each of his contentions lacks
merit and, therefore, affirm his conviction and sentence.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. Villa contends that the district court erred in quashing his subpoena to
the City of Merced, California, pursuant to Fed. R. Crim. P. 17(c), in which he
sought the production of documents relating to a number of individuals involved in
his case. We have previously noted that “Rule 17(c) was not intended as a
discovery device, or to ‘allow a blind fishing expedition seeking unknown
evidence.’” United States v. Reed, 726 F.2d 570, 577 (9th Cir. 1984) (quoting
United States v. MacKey, 647 F.2d 898, 901 (9th Cir. 1981)). Under Rule 17(c),
the party seeking documents must “clear three hurdles: (1) relevancy; (2)
admissibility; (3) specificity.” United States v. Nixon, 418 U.S. 683, 700 (1974).
In this case, both the district court and the magistrate judge found that the
subpoena, as drafted, was insufficiently specific, leaving open the possibility,
which the defendant did not pursue, that a narrowed subpoena might be acceptable.
The district court did not abuse its discretion by so ruling.
2. Villa next argues that the government violated its obligations under
Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose prior to trial that his
former domestic partner had provided a statement to the government inculpating
the defendant that conflicted with her prior testimony before the Grand Jury.
“There are three components of a Brady claim: (1) the evidence at issue
must be favorable to the accused, either because it is exculpatory or because it is
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impeaching; (2) the evidence must have been suppressed by the State, either
willfully or inadvertently; and (3) prejudice must have ensued.” Maxwell v. Roe,
628 F.3d 486, 509 (9th Cir. 2010). Here, assuming arguendo that the evidence was
favorable to the defendant and that it was suppressed by the government, the
defendant has not demonstrated that he was prejudiced by the late disclosure. “To
escape the Brady sanction, disclosure ‘must be made at a time when disclosure
would be of value to the accused.’” United States v. Gordon, 844 F.2d 1397, 1403
(9th Cir. 1988); accord United States v. Miller, 529 F.2d 1125, 1128 (9th Cir.
1976) (noting that the issue “is whether the lateness of the disclosure so prejudiced
[the defendant’s] preparation or presentation of his defense that he was prevented
from receiving his constitutionally guaranteed fair trial”). Here, where the
defendant received the information at the start of the witness’ testimony, the
district court allowed the defendant to delay his cross-examination of the witness
until the following day, and the defendant did not request any additional time, the
defendant has not demonstrated that any prejudice ensued from the late disclosure.
3. Finally, with respect to his conviction, Villa contends that the district
court erred in denying his motion to suppress because the evidence gathered from
the government’s placement and use of a GPS device on his vehicle was an
unreasonable search in violation of the Fourth Amendment. See United States v.
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Jones, 132 S. Ct. 945 (2012). Even assuming, however, that the GPS search
violated the Fourth Amendment (an issue not considered in Jones), we nonetheless
conclude that suppression of its fruits is not required because, here, the government
agents acted in objectively reasonable reliance on then-binding circuit precedent,
which held that neither the placement of an electronic tracking device on the
undercarriage of a vehicle nor its use to monitor the vehicle’s movement along
public roads violated the Fourth Amendment. See United States v. Pineda-
Moreno, 688 F.3d 1087, 1091 (9th Cir. 2012). As the Court noted in Davis v.
United States, 131 S. Ct. 2419 (2011), “[s]earches conducted in objectively
reasonable reliance on binding appellate precedent are not subject to the
exclusionary rule.” Id. at 2423-24.
We also reject Villa’s contention that the GPS tracking evidence should have
been excluded because the attachment of the GPS to the vehicle violated the
Oregon Constitution. The exclusionary rule’s “sole purpose . . . is to deter future
Fourth Amendment violations,” id. at 2426, and not violations of state law.
The district court did not err in denying Villa’s motion to suppress the
evidence gathered from the GPS device.
4. Villa also contends that his sentence should be vacated on three bases.
We reject each of these contentions.
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A. Villa argues that the district court erred in imposing an upward
adjustment to his Guidelines level based on his leadership role in the offense. As a
threshold matter, Villa contends that the government violated Rule 32(f) by not
making its objections to the Presentence Investigation Report (“PSR”) “[w]ithin 14
days after receiving” it. Fed. R. Crim. P. 32(f)(1). While the government’s filing
was not within 14 days of the original PSR, it was within 14 days of the Addendum
to the PSR. Objections made within 14 days of receipt of an addendum are timely
under Rule 32. See United States v. Showalter, 569 F.3d 1150, 1159 (9th Cir.
2009). There was no Rule 32 violation.
On the merits, Villa challenges the four-level enhancement that the district
court applied pursuant to U.S.S.G. § 3B1.1(a), for being an organizer or leader of
the criminal activity involved.
For a four-point upward adjustment to be appropriate, a preponderance of
the evidence must support a finding that the defendant was an organizer or
leader, not merely that the defendant was more culpable than others who
participated in the crime. We have upheld upward adjustments under §
3B1.1(a) in cases involv[ing] defendants who, the evidence showed,
exercised some degree of control or organizational authority over others.
United States v. Rivera, 527 F.3d 891, 908 (9th Cir. 2008) (alteration in the
original) (citations and internal quotation marks omitted). To qualify for the
enhancement, the defendant need have been a “leader” only of one other
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participant. U.S.S.G. § 3B1.1 cmt. 2; United States v. Garcia, 497 F.3d 964, 970
(9th Cir. 2007) (“An enhancement under §§ 3B1.1(a) or (b) does not require
control over all of the five or more participants.”).
Bun’s testimony demonstrates that Villa exercised “some degree of control
or organizational authority over him.” In addition, Villa would take half of the
harvest. See U.S.S.G. § 3B1.1 cmt. 4 (noting that one factor in applying the
enhancement is the “claimed right to a larger share of the fruits of the crime”).
Villa also regularly brought supplies to the workers, enabling them to remain in the
grow area and keep working. Further, Villa owned the land on which the
marijuana was being grown and owning the assets of the organization can be a
relevant factor in applying the enhancement. See United States v. Barajas-Montiel,
185 F.3d 947, 957 (9th Cir. 1999). Finally, although the defendant suggests that
Martin also managed Bun, the guidelines expressly contemplate that “[t]here can,
of course, be more than one person who qualifies as a leader or organizer . . . .”
U.S.S.G. § 3B1.1 cmt. 4. Accordingly, we conclude that a preponderance of the
evidence supports the finding that Villa was an organizer or leader of the
enterprise.
B. Villa contends that the district court’s finding that he “made several
attempts to indicate that Miss Hammit would be killed if she testified against him”
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was clearly erroneous. A finding “is ‘clearly erroneous’ when, although there is
evidence to support it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.” United States v.
Hinkson, 585 F.3d 1247, 1260 (9th Cir. 2009) (en banc) (internal quotation marks
omitted). Further, “where there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly erroneous.” Huff v. City of
Burbank, 632 F.3d 539, 544 (9th Cir. 2011) (citation omitted).
Hammit testified that while Villa did not ask her to lie, he implied it, and
that if she ever told the truth, he “couldn’t protect [her] from the people that were
known internationally.” She also noted that “at one time when [Villa] was very
angry he was talking about slitting” his nephews’ throats. This testimony directly
supports the district court’s “specific[] [finding] that Mr. Villa ‘made several
attempts to indicate that Ms. Hammit would be killed if she testified against him.”
Based on the record, we conclude that this finding is not clearly erroneous.
C. Villa contends that the district court abused its discretion and imposed
a substantively unreasonable sentence. Villa was sentenced to a 264-month term
of imprisonment. While this is well above the mandatory minimum of 120
months, it is in midrange of the guidelines range of 235-293, based upon an
offense level of 38 and a criminal history category of I. The district court
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explained its sentence by noting the seriousness of the offense; that many
defendants face a 10-year mandatory minimum sentence for merely driving or
helping someone else, while Villa owned and controlled the land on which the
conspiracy’s activities were conducted. The court also noted the need to send a
powerful message that large growing operations are serious criminal enterprises.
Finally, it noted that “based on the nature and circumstances of the offense, the
guidelines are correct . . . .” On this record, there can be little doubt that the
district court adequately justified the within guidelines, midrange sentence
imposed. See United States v. Carty, 520 F.3d 984, 991-92 (9th Cir. 1998) (en
banc) (noting that it is “uncontroversial that a major departure should be supported
by a more significant justification than a minor one,” and that the district court
“must make an individualized determination based on the facts”) (internal
quotation marks omitted).
•••!•••
For the foregoing reasons the judgment of conviction and the sentence are
AFFIRMED.
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