U.S. v. Villegas

• Decision Date: 23 August 2011
• Docket Number: No. 09–2569.,09–2569.
• Citation: 655 F.3d 662
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Wosvaldo VILLEGAS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

655 F.3d 662

UNITED STATES of America, Plaintiff–Appellee,

v.Wosvaldo VILLEGAS, Defendant–Appellant.

No. 09–2569.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 27, 2010.Decided Aug. 23, 2011.Rehearing* and Rehearing En Banc Denied Oct. 17, 2011.

Tinos Diamantatos (argued), Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.Scott J. Frankel (argued), Attorney, Frankel & Cohen, Chicago, IL, for Defendant–Appellant.Before ROVNER, EVANS, and WILLIAMS, Circuit Judges.WILLIAMS, Circuit Judge.

A confidential informant alerted law enforcement that Wosvaldo Villegas planned to rob an armored car. After the Federal Bureau of Investigation (“FBI”) opened an undercover investigation, the informant and Villegas met and spoke numerous times regarding the planned robbery. These meetings and conversations were recorded. On the day of the planned robbery, Villegas and the informant met in a Walgreens parking lot approximately a mile from the proposed robbery location where Villegas provided the informant with stolen license plates for use on his vehicle. Villegas was arrested, and was charged and convicted of attempted Hobbs Act robbery, and with aiding and abetting the attempted robbery, in violation of 18 U.S.C. § 1951.

Villegas now challenges his conviction, arguing that there was insufficient evidence to support the verdict, that the district court erred in declining to give a missing witness instruction, and that the trial court erred in allowing into evidence his prior conviction and alleged criminal activity. But we find that sufficient evidence supported the conviction and that the district court did not abuse its discretion in declining to give a missing witness instruction because the informant was physically available to both parties and was not prevented by the government from testifying for the defendant. We also conclude that the district court did not abuse its discretion by admitting Villegas's prior conviction and alleged drug activity into evidence, as Villegas opened the door to this information.

Finally, Villegas challenges the application of a five-level enhancement under U.S.S.G. § 2B3.1(b)(2)(C), which requires district courts to increase a defendant's offense level by five points “if a firearm was brandished or possessed.” Because we find that Villegas is liable for the informant's possession of the weapon in preparation for the offense, we affirm the application of the enhancement.

I. BACKGROUND

This case began when a confidential informant, Jose Diaz Martin Garibay, told federal Drug Enforcement Administration (“DEA”) agents that on or about February 19, 2007, he had been approached by Villegas. Villegas had asked Garibay if Garibay wanted to help rob an armored car. After receiving the information from the DEA, the FBI interviewed Garibay regarding the meeting he claimed he had with Villegas. Garibay explained that his associate, Villegas, had a plan to rob an armored car in the Chicago area of approximately $500,000. According to Garibay, Villegas allegedly knew someone within the armored car company who had knowledge about the business.

The FBI began an undercover operation, in which Garibay would introduce an undercover agent to Villegas as an accomplice to the plot. On February 26, 2007, Garibay and Villegas had a recorded phone conversation where the two agreed to meet in person. During the recorded meeting on February 27, Villegas, Garibay, and the undercover agent discussed the details of the robbery plot. Villegas specifically talked about what armored vehicle drivers do during ATM servicing, said that the group would need to do practice runs before the actual robbery, and said that he would be there with binoculars to oversee the event. Villegas indicated that he had a “friend” who was serving as a driver and ATM servicer for the armored car company. He discussed punching or using a taser gun on this “friend” during ATM servicing in order to stop the employee from reaching for his gun and cause him to drop the money bag. Villegas did not discuss the proposed location, the identity of his “friend,” or the name of the armored car company.

On March 6, 2007, Garibay, Villegas, and the agent met again to discuss the robbery. By this time, Villegas had become suspicious of the agent. During this meeting, Villegas asked the agent how Villegas could know the agent was not a cop. After some discussion, the conversation returned to the robbery. Villegas stated that the group should utilize a rental car with somebody else's license plate on it. After the meeting, the agent attempted to deal directly with Villegas, but Villegas only communicated with Garibay and cut the agent out of the plan.

On April 2, 2007, Garibay and Villegas met and travelled to what was then LaSalle Bank on West Archer Avenue in Chicago and watched a series of ATMs at the bank for over two hours. While conducting surveillance, Villegas discussed where the “van” parked when the employees serviced the ATMs at the bank location. Villegas also asked Garibay, “[h]ave you ever pulled out a gun on somebody to rob him?” Garibay answered yes, after which Villegas asked, “[h]ow does it feel.... Do you get nervous or not?” Garibay stated that “... if the guy tries to pull one out, then I do.... I'm going to have to shoot him.” Garibay later suggested a plan involving weapons, specifically, “[h]ave [my friend] bring his car and stay over there—park it ... with the weapons in it.... As soon as I see it ... run and bring me the guns....” During the conversation, the two also mentioned the use of counterfeit money, applying for credit cards using false information, and alleged drug activity.

Villegas and Garibay met again on April 9, 2007, to watch an armored truck. After the meeting, Garibay and Villegas spoke on the phone. Villegas said that Garibay could use his own car, and that Villegas would get stolen plates. Garibay mentioned that he was still working on getting the gun. On April 26, 2007, the FBI placed a bulletproof vest, ammunition, and a handgun that did not have a firing pin in the trunk of Garibay's car so that he could show the items to Villegas. In the evening, Villegas and Garibay met. When Garibay showed Villegas the items in the trunk, Villegas asked, “[d]oes it work and everything?” After Garibay said that he would wear the vest, both men got in the car. Villegas directed Garibay to his house, and said that he would give Garibay his garage door opener so that Garibay could drive from the bank right to Villegas's garage to change the plates and discard the items used in the robbery, including the gun. The two also went over the plan for executing the robbery and agreed to meet the following morning at 9:00 a.m.

On April 27, 2007, at approximately 9:00 a.m., the two men met at a Walgreens parking lot located on Archer Avenue, approximately one mile from the LaSalle ATM location. Villegas told Garibay that the truck was “over there,” and handed the license plate to Garibay, who then replaced the rear plate on Garibay's car in Villegas's presence. Garibay and Villegas also discussed what hat Garibay would wear during the robbery. Minutes later, Villegas was arrested. The garage door opener was found in Villegas's car. Following his arrest, Villegas agreed to speak with FBI agents. He stated that Garibay had given him the license plate the night before. When told that the previous night's meeting was recorded, Villegas stated that Garibay had given him the plate several months before.

On June 8, 2007, a grand jury returned a one-count indictment charging Villegas with attempted Hobbs Act robbery and aiding and abetting the attempted robbery. The government advised the court that Garibay, who was facing removal proceedings, was no longer considered an active source, and that neither the DEA nor FBI would obtain temporary immigration status for him. The defense filed a motion to compel the prosecution to ask the court for a material witness warrant, but then withdrew the motion and filed, with the government's agreement, a motion requesting a material witness warrant. The court granted the motion, and in October, Garibay was released from immigration detention and taken into custody pending trial.

At trial, the government called the case agent, Special Agent Sean Burke, who testified about his investigation of the case, explained the surveillance footage, and laid the foundation for the admission of video and audio recordings as well as the physical evidence obtained. The government did not question the agent regarding a conversation the FBI had with Garibay in which Garibay stated that he knew Villegas to be a drug dealer who dealt in large amounts of cocaine. The government also did not question the agent about portions of the recorded conversations in which Garibay and Villegas discussed other potentially criminal activities.

On cross-examination, the defense asked the agent if he was aware of the mortgage broker-client relationship between Garibay and Villegas, and inquired as to how the agent gathered information about the nature of their relationship. He also asked, “[n]ow, did it dawn on you that it might be strange that Ozzie Villegas, the client in this mortgage deal, would be calling his mortgage broker to rob an armored car?” The defense also asked, “[a]nd you testified—is it safe to say, ... that you didn't check into the backgrounds of either individual, either Ozzie or Garibay, to a great extent prior to getting into this FBI relationship with the armored car?” The defense also engaged in a line of questioning asking whether it was the job of the government or a government informant to “pressure somebody into committing a crime,” and inquired into the number of phone calls Garibay made to Villegas leading up to the date of Villegas's arrest.

At sidebar, the government argued that the defense had opened the door to the parts of the...