U.S. v. Villarreal

• Decision Date: 20 June 1985
• Docket Number: No. 84-1847,84-1847
• Citation: 764 F.2d 1048
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gerardo Adolf VILLARREAL, a/k/a Jerry, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1048

764 F.2d 1048

UNITED STATES of America, Plaintiff-Appellee, v. Gerardo Adolf VILLARREAL, a/k/a Jerry, Defendant-Appellant.

No. 84-1847.

United States Court of Appeals, Fifth Circuit.

June 20, 1985.

Rehearing Denied Aug. 16, 1985.

Charles T. Conaway, Charles J. Lieck, Jr., San Antonio, Tex., for defendant-appellant.

Helen M. Eversberg, U.S. Atty., J.W. (Bill Blagg), Asst. U.S. Atty., San Antonio, Tex., Vincent L. Gambale, Maury S. Epner, App. Sec., Crim.Div., Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before BROWN, POLITZ and JOLLY, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This case is an appeal by a lieutenant in the sheriff's office of Bexar County, Texas, from a criminal conviction under the Hobbs Act, 18 U.S.C. Sec. 1951, for conspiracy to extort protection money from operators of massage parlors in the San Antonio, Texas, area. Because we find sufficient evidence to support the conviction, and in addition find no reversible error, we affirm.

I

The defendant-appellant Villarreal was hired as a lieutenant in the Bexar County sheriff's office by Joe Neaves soon after Neaves took office as the newly elected sheriff in January 1981. In that position Villarreal had only three superiors: Neaves, an assistant chief, and Chief Deputy Manuel Arcos.

Villarreal was indicted for violation of the Hobbs Act, 18 U.S.C. Sec. 1951, ¹ as well as with various substantive offenses. The government charged that Villarreal had conspired with Thomas Chavana to extort money from "massage parlor" operators. This conspiracy was alleged to have begun about March 1981, and extended to about October 1981. Chavana, a lieutenant in the sheriff's office, was involved by way of his official obligations in the enforcement of municipal regulation of "massage parlors," which were actually thinly veiled houses of prostitution. Chavana admitted to conspiracy with his then supervisor Alfred Carreon to extort "protection" money from the various massage parlors in the San Antonio area. Evidence was presented indicating the conspiracy with which Villarreal was charged overlapped the Chavana/Carreon conspiracy to some extent.

The evidence adduced at trial, which is discussed in more detail below, indicated that Chavana was primarily responsible for collecting payments from massage parlor operators, but that Villarreal would sometimes accompany him to the massage parlors at the times the payments were made. In particular, Florence Reidel, the operator of one parlor, gave testimony which, interpreted in the light most favorable to the government, indicates that she was told by Chavana in Villarreal's presence that she could make payments to Villarreal if the need arose. Moreover, C.B. Moore, the owner of another parlor testified that Villarreal and Chavana visited him and that Chavana solicited money from Moore. Villarreal left the room. Moore refused to pay and his establishment was subsequently raided by the sheriff's department. Shallotte Slade, another parlor operator, testified that Chavana solicited money from her in one room of her massage parlor while Villarreal waited in another. Slade also refused to pay and was subsequently arrested by members of the sheriff's department. Following a jury trial, Villarreal was acquitted on all but the conspiracy count of 18 U.S.C. Sec. 1951. Villarreal was sentenced to five years in prison. He appeals from this conviction and sentence, alleging insufficiency of evidence and various reversible errors in his trial.

II

Villarreal challenges the admissibility of out-of-court statements of Chavana which were admitted by the trial court as statements of an alleged co-conspirator made in the furtherance of the conspiracy. See James v. United States, 590 F.2d 575 (5th Cir.1979) (en banc). James permits the use of such statements of alleged co-conspirators where a preponderance of the evidence other than the out-of-court statements indicates that the conspiracy existed, that the defendant and the alleged co-conspirator were members of it, and that statements were made in the course of and in furtherance of the conspiracy. James at 583. In these circumstances the out-of-court statements are not hearsay. Id.; Fed.R.Evid. 801(d)(2)(E). Because the trial court's determination that the out-of-court statements were made in the course of and in furtherance of an ongoing conspiracy of which Villarreal was a member, is supported by the evidence, we hold that to admit the hearsay statements was not an abuse of the trial court's discretion.

Considering an appeal from a criminal conviction, we must interpret the evidence in the light most favorable to the government. Viewed in this light, independent evidence supporting the James determinations made by the district court is substantial. First, Villarreal accompanied Chavana on visits to the massage parlors during which Chavana solicited money from massage parlor personnel. Reidel, the manager of Belle's massage parlor, gave testimony which a reasonable jury could interpret as asserting that in June 1981 Villarreal once waited in the car outside Belle's while Chavana entered and solicited money. ²

C.B. Moore, the manager of the Moonshine Spa and the Puss & Boots Theatre, testified that Villarreal and Chavana visited him in 1981 and that Villarreal left the room and Chavana solicited money from Moore. Moore refused to pay, and a few days later Villarreal and Chavana participated in a "raid" on the Puss & Boots Theatre.

Shallotte Slade, owner of the Pleasure Place massage parlor, testified that in the summer of 1981 Villarreal waited in one room of her establishment while Chavana solicited money from her in the next. Slade also refused to pay and was soon arrested.

Second, Villarreal's own testimony indicated that he had substantial authority in the sheriff's office; indeed, he was in charge of the office between 5:00 p.m. and 1:00 a.m. His failure to use his authority to investigate Chavana's actions helps to support the conclusion that Villarreal and Chavana were parties to a conspiracy.

Third, Chavana testified that he gave Villarreal money in August 1981, telling him that the money came from the massage parlors.

Fourth, Chavana testified that massage parlors were making payments to members of the sheriff's office as early as April 1981.

The foregoing independent evidence is sufficiently substantial to fully support the trial court's James determinations. Accordingly, out-of-court statements made by Chavana after implicating Villarreal were properly admitted into evidence.

III

The evidence adduced at trial, including the out-of-court statements admitted under James, is sufficient to support Villarreal's conspiracy conviction. To convict for criminal conspiracy "the jury must find 'an agreement between two or more persons to commit a crime, and an overt act by one of the conspirators to further the conspiracy.' " United States v. Lyons, 703 F.2d 815, 822 (5th Cir.1983) (quoting United States v. Khamis, 674 F.2d 390, 392 (5th Cir.1982)).

There is no question that Chavana committed many criminal "overt acts" in extorting money from the massage parlor operators. Moreover, there is evidence sufficient to allow a reasonable trier of fact to conclude beyond a reasonable doubt that Villarreal and Chavana entered into an agreement to extort money from the massage parlor operators, pursuant to which Chavana performed his "overt acts." United States v. Saenz, 747 F.2d 930, 938 (5th Cir.1984). As in the above analysis, we must again construe the evidence in the light most favorable to the government. Id.

Reidel testified that during the visit to Belle's massage parlor, Chavana asked Reidel to come outside and meet Villarreal who was waiting in the car. After introducing Reidel to Villarreal, Chavana said to Reidel that she could make payments to Villarreal if the need arose. Reidel testified that Chavana made this statement within Villarreal's hearing, and that he did not object.

Villarreal now argues that this out-of-court statement of Chavana should be excluded as hearsay; we do not agree. As already mentioned above, the trial court did not err in admitting this statement under the authority of James. However, even if James did not apply, we could not now disallow its introduction. Villarreal did not object to the introduction of this statement at trial; accordingly, we must review its admission under the "plain error" standard. United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982). Villarreal's failure to disagree with Chavana's statement at the time it was made to Reidel could reasonably be taken as indicating his adoption of it; the admission of the statement might therefore reasonably be permissible as an admission of a party under Fed.R.Evid. 801(d)(2)(B) (and accompanying committee notes). Thus, the inclusion of Chavana's statement cannot be characterized as "plain error."

In addition to the previously recounted testimony, Sandra Bowen, an owner of the Omega Spa parlor, testified that Villarreal accompanied Chavana on a trip Chavana made to collect money from that parlor; again, Chavana collected and Villarreal remained outside in the car. This was in October 1981. Villarreal also accompanied Chavana on inspections of the Omega Spa, according to Bowen.

John Falvey, who owned...