United States v. Wills

• Decision Date: 13 July 2022
• Docket Number: 20-40648
• Citation: 40 F.4th 330
• Parties: UNITED STATES of America, Plaintiff—Appellee, v. David Keith WILLS, Defendant—Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

40 F.4th 330

UNITED STATES of America, Plaintiff—Appellee,

v.David Keith WILLS, Defendant—Appellant.

No. 20-40648

United States Court of Appeals, Fifth Circuit.

FILED July 13, 2022

Eileen K. Wilson, Carmen Castillo Mitchell, Assistant U.S. Attorneys, U.S. Attorney's Office Southern District of Texas, Houston, TX, for Plaintiff—Appellee.

Gerald Harris Goldstein, Esq., Aaron M. Diaz, Attorney, John Stuart Gilmore, III, Esq., Abasi Daudi Major, Kurt Gene May, Cynthia Eva Hujar Orr, Goldstein & Orr, P.L.L.C., San Antonio, TX, for Defendant—Appellant.

Before Davis, Elrod, and Haynes, Circuit Judges.

W. Eugene Davis, Circuit Judge:

A jury convicted David Keith Wills ("Wills") of sexually abusing a minor girl over a period of three years and conspiring to obstruct justice by destroying his laptop computer. Wills appeals, raising numerous arguments. We find no reversible error in the proceedings below and AFFIRM.

I. BACKGROUND

Wills was indicted for (1) conspiracy to commit sex trafficking of a child (one count) in violation of 18 U.S.C. §§ 1591 and 1594, (2) sex trafficking of a child (seven counts) in violation of § 1591, (3) coercion and enticement of a minor (nine counts, two of which are "attempted") in violation of 18 U.S.C. § 2422(b), and (4) conspiracy to commit obstruction of justice (one count) in violation of 18 U.S.C. § 1512(c) and (k). The victim was Jane Doe ("Jane"), who was ten years old when the abuse began in 2012 and thirteen when it ended in 2015. The indictment further alleged that Jane's mother, Maria Losoya ("Losoya"), conspired with Wills to abuse Jane. Losoya initially denied the accusation, but she later recanted, pleaded guilty to sex trafficking Jane, and agreed to cooperate with the prosecution. Wills pleaded not guilty to all counts.

Before trial, Wills moved to dismiss the indictment on double jeopardy grounds, among others. The district court denied the motion, and we affirmed on interlocutory appeal.¹

Wills's trial lasted eleven days. The jury heard testimony from forty-seven witnesses, including Jane, Losoya, and Wills. Losoya, who was awaiting sentencing at the time of trial, was an important witness for the prosecution.² She testified that, in exchange for money and gifts from Wills, she would deliver Jane to Wills whenever he requested—sometimes even checking her out of school—so he could rape her. Jane provided similar testimony. The Government also presented documentary evidence that corroborated Jane's and Losoya's testimonies.

The jury convicted Wills on all but one of the counts in the indictment.³ Wills moved for a new trial, which the district court denied. The court sentenced Wills to life imprisonment for the sex crimes and five years for conspiring to commit obstruction of justice, to be served concurrently. The court also imposed a fine of $85,000 and required Wills to pay Jane $172,000 in restitution.

Wills timely appealed.

II. DISCUSSION

As mentioned, Wills presents numerous arguments in this appeal. Three of those are discussed below. Although we do not discuss Wills's other arguments, we have considered them and conclude they are unavailing.

A. Double Jeopardy, Law of the Case

The Fifth Amendment's Double Jeopardy Clause states that no person may be "twice put in jeopardy" "for the same offence."⁴ Wills argues that the federal prosecution violated double jeopardy because he was subjected to punitive pretrial bond conditions in state court before being tried and convicted in federal court. He further argues that the "dual-sovereignty" doctrine, which states that double jeopardy does not prohibit successive punishments for a single act that violates the respective laws of two sovereigns (e.g., state law and federal law),⁵ does not apply here. We hold that law of the case bars these arguments.

"The law of the case doctrine posits that ordinarily ‘an issue of fact or law decided on appeal may not be reexamined either by the district court on remand or by the appellate court on subsequent appeal.’ "⁶ The doctrine covers issues decided expressly and by necessary implication.⁷ We recognize three exceptions to law of the case: "(1) The evidence at a subsequent trial is substantially different; (2) there has been an intervening change of law by a controlling authority; and (3) the earlier decision is clearly erroneous and would work a manifest injustice."⁸

Prior to trial, Wills moved to dismiss the federal indictment on double jeopardy grounds. The district court denied the motion, and Wills took an interlocutory appeal. Another panel of this court held in 2018 that the dual-sovereignty doctrine applied and, consequently, no double jeopardy violation occurred.⁹ Therefore, we will not revisit this issue unless one of the exceptions to the law-of-the-case doctrine applies.

Wills invokes only the second exception: intervening change of law by a controlling authority. He contends Gamble v. United States ,¹⁰ a Supreme Court decision that issued after Wills I , "makes clear that where a State has already punished an individual for a particular crime (here a violation of Texas Penal Code § 21.11 ), the Federal Government may not thereafter punish him for those same State ‘offenses.’ "

Gamble is an intervening decision by a controlling authority, but it did not change the law. The Court re-affirmed the dual-sovereignty doctrine, citing, inter alia, 170 years of precedent.¹¹ Wills builds his argument on a passage in Gamble that acknowledged "the presence of a bar in a case in which the second trial is for a violation of the very statute whose violation by the same conduct has already been tried in the courts of another government."¹² But Gamble did not create this exception to the dual-sovereignty doctrine. It comes from a 1959 case that interpreted a decision from 1820.¹³ Additionally, the Gamble Court was not called upon to apply this exception to the facts before it; it merely explained why the exception did not undermine the dual-sovereignty doctrine. ¹⁴

Thus, Gamble broke no new ground.

For these reasons, the law-of-the-case doctrine forecloses Wills's double jeopardy argument.

B. Financial Motive to Lie

Wills argues that his constitutional rights were violated when he was prohibited from discovering certain evidence that purportedly showed Jane's, Losoya's, and their attorney's financial motives to lie.

By way of background, Jane filed a civil lawsuit against Wills shortly after he was convicted. Richard Nunez ("Nunez") is the attorney who represented Jane in this lawsuit. Nunez also represented Losoya throughout the criminal proceedings, including when she pleaded guilty to sex trafficking and testified against Wills.

Wills was wealthy, and he asserts that the prospect of a substantial money judgment in a civil suit motivated Jane to falsely accuse him of sexual abuse. Nunez, who represented Jane on a contingent-fee basis, likely also expected to profit from Jane's lawsuit. This, Wills claims, created a conflict of interest between Nunez and his other client, Losoya; to wit : Nunez allegedly had a financial incentive in seeing Losoya plead guilty and testify for the prosecution, because a criminal conviction against Wills would help ensure a favorable outcome in the civil case. Thus, Wills surmises that Nunez encouraged Losoya to sacrifice her own interests, recant her prior denials, falsely admit to prostituting her own daughter (which carried a fifteen-year minimum sentence under federal sentencing guidelines), and provide incriminating testimony against Wills.

Wills claims that he attempted to develop this theory before trial by seeking discovery of any contract or contact Jane had with any civil lawyer, but the district court thwarted these efforts. He contends this prevented him from exposing Jane's and Losoya's motives in testifying against him and, consequently, violated fundamental fairness and deprived him of a meaningful opportunity to present a complete defense.

We review constitutional claims de novo.¹⁵ "[T]he Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’ "¹⁶ For example, the Fifth Amendment's Due Process Clause requires that criminal defendants be treated with "fundamental fairness essential to the very concept of justice," and the Sixth Amendment's Compulsory Process Clause "ensures that criminal defendants have ... the right to put before a jury evidence that might influence the determination of guilt."¹⁷ In exercising these rights, however, a defendant "must comply with established rules of ... evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence."¹⁸ The determination of whether the exclusion of evidence is of a constitutional dimension depends on the reason for and effect of the exclusion, and it typically includes an inquiry into the Federal Rules of Evidence.¹⁹

Wills knew before trial that Nunez represented Losoya, and he presented this fact to the jury. He cites two pretrial motions to support his claim that he repeatedly sought disclosure of any contract or contact Jane had with Nunez but "was prevented from exploring these issues."

First, Wills filed a motion to compel the Government to produce approximately 100 discovery items, including "[t]he fact of any contact Jane Doe [or any person on her behalf] had with any civil lawyer" and "[a]ny and all statements made by Jane Doe, including but not limited to conversations with Richard Nunez." At a hearing on that motion, Wills's counsel represented that the parties had resolved most of the discovery issues. Wills's counsel also stated that the Government's attorney "was checking on whether Maria Losoya's lawyer had any communications with Jane Doe. He's just double checking on that for me; he doesn't believe there were any direct communications ...." The parties discussed several other matters at the hearing. Afterwards, the district court issued a minute entry stating that the parties "will continue to work together...