U.S. v. Martinez-Villegas

• Citation: 993 F.Supp. 766
• Decision Date: 02 February 1998
• Docket Number: No. CR 96-1123 DWW.,CR 96-1123 DWW.
• Court: U.S. District Court — Central District of California
• Parties: UNITED STATES of America, Plaintiff, v. Gabriel MARTINEZ-VILLEGAS, Sr., et al., Defendants.

993 F.Supp. 766

UNITED STATES of America, Plaintiff, v. Gabriel MARTINEZ-VILLEGAS, Sr., et al., Defendants.

No. CR 96-1123 DWW.

United States District Court, C.D. California, Western Division.

February 2, 1998.

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Duane R. Lyons, Asst. U.S. Atty., Los Angeles, CA, for U.S.

Scott S. Furstman, Santa Monica, CA, for Defendant Gabriel Martinez-Villegas, Sr.

Michael Norris, Michael Norris, Inc., Redondo Beach, CA, for Defendant Gabriel Martinez-Villegas, Jr.

Fred Browne, Santa Monica, CA, for Defendant Juvetino Martinez Gutierrez.

MEMORANDUM OPINION

DAVID W. WILLIAMS, Senior District Judge.

Defendants Juvetino Gutierrez ("Gutierrez"), Gabriel Martinez-Villegas, Sr. ("Villegas, Sr.") and Gabriel Martinez-Villegas, Jr. ("Villegas, Jr.") (father and son, collectively, "Villegases") were each charged in a two count indictment, with one count of conspiracy, in violation of 21 U.S.C. § 846, and one count of attempted possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 846.

In June, 1996, a confidential informant working with the Drug Enforcement Administration ("DEA") met with defendant Gutierrez. Gutierrez stated that he was in the business of buying and transporting cocaine, and that he and his associates had trailers that could be used to transport narcotics. The confidential informant told Gutierrez that he worked for someone who was willing to sell 300 kilograms of cocaine.

On June 12, 1996, the confidential informant and an undercover DEA agent posing as a Latin American drug lord, met with Gutierrez. During the meeting, the undercover agent told Gutierrez that he was willing to sell a large quantity of cocaine. The undercover agent stated that he would sell 50 kilograms of cocaine at a time, at a purchase price of $15,500.00. Gutierrez then said that he was not interested in buying cocaine but knew someone who may be willing to transport cocaine. The undercover agent then stated that he needed someone to transport 100 kilograms of cocaine to Detroit, Michigan. Gutierrez replied that he would ask his "contact" how much he would charge to transport the cocaine, and agreed to meet with the undercover agent in the future.

On June 20, 1996, Gutierrez, the undercover agent, and the confidential informant again met. The Villegases were not present. Gutierrez, again, stated that he would find out whether his contact would be willing to transport cocaine.

Through Gutierrez, the confidential informant was introduced to Villegas, Sr. and, later, Villegas, Jr. Evidence at trial showed that the confidential informant repeatedly contacted the Villegases in hopes of placing them in contact with the undercover agent. Villegas, Sr. also testified that the confidential informant, on several occasions, both in person and by telephone, had tried to persuade him to meet with the undercover agent. Eventually, a meeting was arranged between the Villegases and the undercover agent.

On July 18, 1996, the Villegases were introduced to the undercover agent by the confidential informant. At the meeting, the undercover agent asked the Villegases if they owned any trucks. Villegas, Sr. indicated that he and his son owned several trucks. Villegas, Jr. gave the undercover agent a brochure of their trucking business which showed a picture of the Villegases and a truck. On the brochure was the name "Gavima & Sons." At the meeting, the undercover agent told the Villegases that he was willing to pay $500.00 per kilogram to transport cocaine and that he wanted to begin with 100 kilograms, and informed the Villegases that he had buyers in both Detroit and Chicago.

The undercover agent told the Villegases that he did not deal in small quantities but rather he delivered between 100 and 500 kilograms of cocaine at a time. In addition, he told the Villegases that he needed someone with experience to transport the narcotics, and that if they did not have any experience he would not work with them. The Villegases then replied that they were experienced, and had transported between 5 to 10 kilograms of cocaine in the past. They further stated that they had been involved in the transportation of narcotics for approximately five years and had also transported narcotics to the eastern United States. They agreed to meet with the confidential informant again.

On August 5, 1996, the undercover agent and the confidential informant again met with the Villegases. Gutierrez was also present. The undercover agent told the Villegases that he had received a telephone call from one of his buyers in San Francisco, who requested 100 kilograms of cocaine as soon as possible. The undercover agent asked the Villegases if they could make the delivery to San Francisco. The Villegases agreed to deliver the cocaine. It was also agreed that the Villegases would be paid $300.00 per kilogram to transport the cocaine, and that Gutierrez would receive five percent of this amount. The undercover agent also agreed to pay Gutierrez an extra five percent for his efforts in introducing him to the Villegases.

The undercover agent then told the Villegases that he would tell them the following day where to pick up the 100 kilograms of cocaine, and instructed Villegas, Sr. to bring his son, and no one else, to assist him with the transportation of the cocaine.

Two days later, on August 7, 1996, Gutierrez, the undercover agent, and the confidential informant met Villegas, Jr. for the purpose of providing him with the cocaine. As instructed, Villegas, Jr. arrived in an 18-wheel truck, which he drove. Villegas, Sr., however, was not present. The undercover agent then uncovered a large container which he said held approximately 92 kilograms of cocaine.

After loading the container onto the truck, Villegas, Jr. asked the undercover agent for the address in San Francisco where he wanted the cocaine to be delivered. The undercover agent told him that he would provide him with the address after he left the parking lot. Villegas, Jr. boarded the truck and began to pull forward. At that point, both Villegas, Jr. and Gutierrez were arrested. After the arrest, Villegas, Jr. was instructed to call his father and explain to him that he had been arrested by the DEA. The following morning, Villegas, Sr. voluntarily surrendered.

The Villegases were then questioned by the DEA. The Villegases told the DEA that they did not have any prior narcotics dealings, and that this was the first time they had been involved with narcotics. They also stated that they were uncomfortable when they were solicited to transport narcotics but that they were enticed to do so by the money offered by the undercover agent. The Villegases stated that they had no further information to provide to the DEA agents because they had never been involved in the transportation of narcotics.

No indictment was returned. However, for some reason not fully disclosed by the government, the Villegases were released, presumably, after agreeing to cooperate with the DEA in further investigations.

Nearly four months later, on December 4, 1996, the Villegases were rearrested, apparently because they were only able to provide limited assistance to their DEA handlers. Although a period of almost four months had elapsed between the date of their arrest and subsequent re-arrest, the government failed to explain the reason for this substantial lapse in time, and has never accounted for the Villegases activities or efforts during those four months. Nevertheless, an indictment was filed against the Villegases and Gutierrez on December 13, 1996, charging them with offenses which occurred between June and August of 1996.

Pursuant to a plea agreement, Gutierrez pled guilty on May 28, 1997. Gutierrez received a sentence of 37 months of incarceration. Villegas, Sr. and Villegas, Jr. pled not guilty, and were subsequently found to be indigent. Villegas, Sr. was appointed counsel from the Federal Public Defender's Office. Villegas, Jr. was appointed counsel from the indigent defense panel. On June 24, 1997, following a jury trial, the Villegases were convicted on both counts. The Court referred the Villegases to the United States Probation Office for investigation and report. A sentencing hearing was scheduled for September 8, 1997.

The presentence report, and the addendum to the presentence report, calculated both Villegas, Sr. and Villegas, Jr.'s total adjusted offense level at 36. Based on a total adjusted offense level of 36, and a criminal history category of I, the resulting United States Sentencing Commission's Guideline ("Guideline") range was 188 to 235 months.

Prior to the sentencing hearing, Villegas Sr. and Villegas, Jr. filed extensive sentencing position papers, citing a variety of factors in support of a downward departure or adjustment under the Guidelines. Specifically, the Villegases contended that they were entitled to an adjustment or a downward departure based on the following factors: 1) the safety-valve provision; 2) role in the offense; 3) sentencing entrapment; 4) imperfect entrapment and coercion; 5) outrageous government conduct; 6) alienage; 7) aberrant conduct; and 8) acceptance of responsibility. On August 28, 1997, the government filed its position papers regarding the sentencing factors, arguing that the Villegases were not eligible for any reductions in their offense levels.

On September 4, 1997, two court days before the sentencing hearing, the Villegases moved to substitute their appointed attorneys for retained attorneys. However, because the Villegases previously lacked the financial resources to hire counsel, the Court, on September 15, 1997, held an evidentiary hearing to determine whether a third party would be paying for their attorneys' fees and, if so, whether the Villegases understood the potential conflict of interest that would exist in such an arrangement and would voluntarily waive any conflict. See Quintero v....