United States v. Lee Roy Villarreal

In United States v. Lee Roy Villarreal, No. 23-20144 (5th Cir. Dec. 3, 2024) (unpublished), the Fifth Circuit affirmed the defendant’s trial conviction for conspiracy to distribute a controlled substance. In so doing, the court rejected Villarreal’s arguments that he should have been allowed to admit at trial a recorded interview of a government cooperator, that the district court should have made a particularized inquiry into the cooperator’s Fifth Amendment invocation, and that the district court should have immunized the cooperator.

Issue 1: In short, Villarreal argued that the cooperator’s interview would show the jury that agents who interviewed witnesses “employed coercive practices to sway testimony,” because they did it to that witness. The district court, however, found that interview irrelevant, and the Fifth Circuit agreed. The cooperator did not testify at Villarreal’s trial, and it was “debatable that any language used by the agents during [the cooperator’s] interview was ‘coercive’ in nature and affected his recount of the” relevant events.

Moreover, Villarreal introduced no evidence that agents had used similar interrogation tactics against any witness who did testify at his trial. In particular, the Fifth Circuit highlighted the fact that Villarreal’s counsel did not ask any of the Government’s 30+ witnesses whether they had been pressured or coerced into implicating Villarreal.

Issue 2: The district court did not err by allowing that cooperator to make a “blanket” assertion of his Fifth Amendment right to remain silent “instead of making a particularized inquiry into the scope of the privilege assertion.” Generally, a district court should inquire “into the legitimacy and scope of the invocation.” But a court may accept an invocation without further questioning if it has “sufficient evidence from which to under stand the likely implications of the witness’s testimony and the scope of his privilege.” See United States v. Wright, 845 F. App’x 1042, 1049 (5th Cir. 1976). Here, that standard was met.

Issue 3: The district court did not err by giving the cooperator judicially-ordered immunity. In the Fifth Circuit, “a district court does not possess the statutory, common law, or inherent authority either to grant use immunity to a defense witness . . . or to order the government to do so.” United States v. Chagra, 669 F.2d 241, 258 (5th Cir. 1982) (citation omitted), overruled on other grounds by Garrett v. United States, 471 U.S. 773 (1985).

The Fifth Circuit has, however, appeared at times open to an exception if there were “extraordinary circumstances” and immunization was necessary to “thwart government abuse.” Here, the district court found no such extraordinary circumstances, and the Fifth Circuit affirmed that decision.