In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2569
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
W OSVALDO V ILLEGAS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 CR 00260-1—Virginia M. Kendall, Judge.
A RGUED S EPTEMBER 27, 2010—D ECIDED A UGUST 23, 2011
Before R OVNER, E VANS , and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. A confidential informant
alerted law enforcement that Wosvaldo Villegas planned
to rob an armored car. After the Federal Bureau of In-
vestigation (“FBI”) opened an undercover investigation,
Circuit Judge Evans died on August 10, 2011, and did not
participate in the decision of this case, which is being resolved
by a quorum of the panel under 28 U.S.C. § 46(d).
2 No. 09-2569
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 at-
tempted 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 pos-
sessed.” Because we find that Villegas is liable for the
No. 09-2569 3
informant’s possession of the weapon in preparation
for the offense, we affirm the application of the enhance-
ment.
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 con-
versation 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 indi-
4 No. 09-2569
cated 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 conversa-
tion 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 communi-
cated 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,
No. 09-2569 5
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 counter-
feit money, applying for credit cards using false infor-
mation, 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
6 No. 09-2569
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 con-
sidered 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 prosecu-
tion to ask the court for a material witness warrant,
but then withdrew the motion and filed, with the govern-
ment’s agreement, a motion requesting a material wit-
ness warrant. The court granted the motion, and in Octo-
ber, 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
No. 09-2569 7
government did not question the agent regarding a con-
versation 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 in-
formant 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 conversations
that were omitted, and that without being able to delve
into those areas, the jury would be left with an erroneous
picture of what the FBI knew about Garibay and Villegas.
8 No. 09-2569
The government also argued that because the defense
raised the numerous phone calls between Garibay and
Villegas, and used the words “pressure” and “coercion”
(the latter of which does not, in fact, appear in the rec-
ord), the door was opened to allow the government to
complete the picture of the relationship between the
two men.
The court agreed, stating that the defense “didn’t open
the door a crack and take a peak. You kicked it wide
open and . . . suggested that [Villegas] was simply a
customer of the mortgage company. . . .” The court went
on, “[t]hen you kicked the door wide open again when
you asked him all of these questions about how he knew
him solely in that capacity as a client in the mortgage
business, when in truth he knows him in this other ca-
pacity with drug dealing.” The court allowed the gov-
ernment to inquire about the agent’s knowledge about
Villegas’s past acts, and to read into evidence the
entirety of the April 2, 2007 conversation.
On re-direct, the agent testified regarding Garibay’s
statement about Villegas’s involvement in dealing
cocaine, and inquired about a felony conviction from
2004 for financial identity theft in the Circuit Court of
Cook County. The court gave a limiting instruction to
the jury, instructing that “[y]ou may take the answer to
that question about the felony conviction for the sole
purpose of determining what the agent knew at the
time that he began his investigation and for no other
purpose.” When the entirety of the April 2, 2007 re-
cording was played for the jury, including the parts where
No. 09-2569 9
Villegas and Garibay discussed what the government
believed to be drugs and credit card fraud, the district
court instructed the jury that the evidence of acts other
than those charged may be considered “only for the
question of the relationship between the CI and the
defendant and on an issue of entrapment.” 1
Additional evidence produced at trial showed that the
license plates Villegas handed to Garibay on the morning
of April 27 had been stolen off a government vehicle
parked in the vicinity of Villegas’s house, and that the
garage door opener was found on the front passenger
seat of the vehicle Villegas was found in at the time of
the arrest.
As the trial continued, the government interviewed
Garibay in the event that the defense elected to call him.
The government stated that Garibay was hostile and
upset about his removal proceedings and his current
incarceration. Garibay made accusations that before
being taken into immigration custody, he was ap-
proached by the defendant and a private investigator
for the defense about altering his testimony. The govern-
ment reported the contents of the interview to the court
and defense counsel. The court held a hearing to
determine whether a conflict existed in light of Garibay’s
claims. With the assistance of independent counsel,
Villegas waived any conflict to the extent one existed.
1
While the defense sought an entrapment instruction in its pre-
trial motions, the court did not grant the instruction until the
trial was underway.
10 No. 09-2569
Garibay was brought to the courthouse during trial, but
neither the government nor Villegas called him as a
witness. The defense, however, did seek a missing
witness instruction on the ground that Garibay was an
informant who made serious allegations against the
defense, and was therefore unavailable to them. The
trial court declined to give the instruction. After the
close of the government’s case, Villegas moved for a
judgment of acquittal under Fed. R. Crim. P. 29(a), but
the court denied the motion.
Villegas testified in his own defense, saying that Garibay
was aggressive when he contacted him, and called him
repeatedly to say that Villegas owed him something.
Villegas said that Garibay made him feel that he had
to attend meetings regarding the robbery. He also said
that he had no intention of committing any violence
against the armored car drivers, and did not, in fact,
have a friend who worked for the company. He claimed
that Garibay provided the stolen plates to Villegas the
evening before the scheduled robbery. The jury also
heard testimony from Villegas’s mother and fiancée, who
corroborated Villegas’s version of events regarding
his claim that Garibay delivered the license plates the
night before the scheduled robbery. The defense also
presented the expert testimony of Dr. Jeri Morris, a
neuropsychologist, who testified that Villegas suffers
from a low IQ and, as a result, was more susceptible to
pressure from Garibay to commit the crime for which
he was charged.
On November 20, 2008, the jury returned a guilty verdict
and Villegas filed a renewed motion for a judgment of
No. 09-2569 11
acquittal under Fed. R. Crim. P. 29(c), or for a new trial
under Fed. R. Crim. P. 33, which the court denied. At
sentencing, Villegas contested the applicability of a five-
level enhancement, pursuant to U.S.S.G. § 2B3.1(b)(2)(C),
based on possession of a firearm. The district court deter-
mined that the gun enhancement was applicable, and
also applied a two-level enhancement for obstruction
of justice for giving knowingly false testimony under
U.S.S.G. § 3C1.1. The court, finding the applicable guide-
lines range to be 108 to 135 months based on an offense
level of 29, and a criminal history category III, sentenced
Villegas to 87 months in prison.
On appeal, Villegas argues that: (1) there was insuf-
ficient evidence to support a guilty verdict; (2) the trial
court erred in refusing to give the defendant’s proposed
missing witness instruction with respect to Garibay; (3) the
court erred in ruling that the defendant had opened
the door to the admission of evidence of other crimes,
including drug dealing; and (4) the trial court erred in
applying a five-level enhancement to the defendant’s
guidelines calculation based upon the possession of a gun.
II. ANALYSIS
A. The Sufficiency of the Evidence
An argument that insufficient evidence supported a
jury verdict is difficult to win. In reviewing such a chal-
lenge, we “view all the evidence and draw all reasonable
inferences in the light most favorable to the prosecu-
tion and uphold the verdict if ‘any rational trier of fact
12 No. 09-2569
could have found the essential elements of the crime
beyond a reasonable doubt.’ ” United States v. Gallardo,
497 F.3d 727, 737 (7th Cir. 2007) (citations omitted).
The Hobbs Act criminalizes robbery and attempted
robbery that interferes with commerce or the movement
of any article or commodity in commerce. The statute
defines robbery as “the unlawful taking or obtaining
of personal property from the person or in the presence
of another, against his will, by means of actual or threat-
ened force, or violence, or fear of injury, immediate
or future, to his person or property . . . .” 18 U.S.C.
§ 1951(b)(1). To prove an attempt, the government had
to show only that Villegas acted with specific intent to
commit the underlying offense, that is, that he intended
to perform a robbery, and took a substantial step toward
its completion. See United States v. Bailey, 227 F.3d 792,
797 (7th Cir. 2000) (citing United States v. Dennis, 115
F.3d 524, 534 (7th Cir. 1997)).
A substantial step is “ ‘some overt act adapted to, ap-
proximating, and which in the ordinary and likely course
of things will result in, the commission of the particular
crime.’ ” United States v. Gladish, 536 F.3d 646, 648 (7th
Cir. 2008) (quoting United States v. Manley, 632 F.2d 978,
988 (2d Cir. 1980)); see also United States v. Sanchez, 615 F.3d
836, 844 (7th Cir. 2010). It is “something more than
mere preparation, but less than the last act necessary
before the actual commission of the substantive crime.”
United States v. Barnes, 230 F.3d 311, 315 (7th Cir. 2000). The
line between mere preparation and a substantial step is
inherently fact specific; conduct that would appear to
No. 09-2569 13
be mere preparation in one case might qualify as a sub-
stantial step in another. Sanchez, 615 F.3d at 844
(citing United States v. Magana, 118 F.3d 1173, 1199 (7th
Cir. 1997)).
Villegas first argues that the government failed to
prove that he took a substantial step toward the comple-
tion of the crime. The evidence produced at trial, however,
did not portray Villegas as a mere “talker,” but made
reasonably clear that had Villegas not been interrupted,
he would have participated in the robbery. First, on
the day of his arrest, Villegas arrived at a pre-arranged
meeting location approximately a mile away from the
ATM location, and told Garibay that he had seen the
armored truck “over there.” Villegas brought with him
the license plates to be used on Garibay’s car, observed
Garibay change the rear plate, discussed with Garibay
what hat Garibay would wear during the robbery, and
had in his car a garage door opener that Villegas previ-
ously said he would give to Garibay to use after the
robbery. All of this happened just one day after Villegas
and Garibay met to discuss the details of the robbery.
During that meeting, Villegas asked Garibay if the gun
in his trunk “work[ed] and everything,” and the two
agreed to meet the next morning. These acts also follow
almost eight weeks of recorded conversations in which
specific details of the robbery were discussed. In this
context, Villegas’s conduct on the day of his arrest went
beyond mere preparation and was “strongly corrobora-
tive of the firmness of [his] criminal intent.” United States
v. Rovetuso, 768 F.2d 809, 821 (7th Cir. 1985) (quotations
omitted). Viewed in the light most favorable to the gov-
14 No. 09-2569
ernment, we find that a rational trier of fact could have
found that Villegas’s conduct constituted a substantial
step towards the commission of a robbery.
Villegas also argues that the government did not prove
“actual or threatened force, or violence,” as required by
the statute. However, there are numerous references
to violence in the recorded conversations, including
Villegas’s discussion of the use of a taser on the driver,
punching him, and, of course, the numerous discussions
of the gun provided to Garibay by law enforcement and
its potential use. Villegas testified that he did not have
any intent on “doing any of this stuff” (referring to the
violent acts), but such testimony by itself does not render
the government’s case insufficient. The evidence that
Villegas had direct knowledge of the gun, questioned
whether it worked, and discussed using the gun, a taser,
and physical force was sufficient for a rational jury to
conclude that Villegas had the specific intent to use
force or violence. Given that we must uphold the verdict
if “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable
doubt,” Gallardo, 497 F.3d at 737, Villegas’s insufficiency
claim cannot succeed.
B. Missing Witness Instruction
Generally, our review of a decision whether to give
a particular jury instruction is for an abuse of discretion.
United States v. Tavarez, 626 F.3d 902, 904 (7th Cir. 2010)
(citing United States v. Macedo, 406 F.3d 778, 787 (7th
Cir. 2005)). The district court has broad discretion in
No. 09-2569 15
deciding whether to give a missing witness instruction.
United States v. Gant, 396 F.3d 906, 910 (7th Cir. 2005).
In denying Villegas’s request for a missing witness in-
struction with respect to Garibay, the district court
found that Garibay was physically available to the
defense, had made statements indicating that he was not
biased toward the government, and would not have
provided testimony helpful to the defense.
A missing witness instruction is warranted if “the
absent witness was peculiarly within the government’s
power to produce; and [if] the testimony would have
elucidated issues in the case and would not merely
have been cumulative.” United States v. Brock, 417 F.3d
692, 699 (7th Cir. 2005) (citation and internal quotation
omitted). As to the first element, a witness is peculiarly
within a party’s power to produce if he either: (1) is
physically available only to that party; or (2) has such a
relationship with one party as to effectively make him
unavailable to the opposing party, regardless of actual
physical availability. Tavarez, 626 F.3d at 905 (citing
United States v. Mahone, 537 F.2d 922, 926 (7th Cir. 1976)).
The latter prong is also referred to as “pragmatic unavail-
ability.” See United States v. Christ, 513 F.3d 762, 773 (7th
Cir. 2008); Yumich v. Cotter, 452 F.2d 59, 64 (7th Cir. 1971)
(finding that the employment by the city of uncalled
police officers who witnessed an altercation between
officers and the plaintiff, as well as the officers’ “strong
personal interest in the success of the city’s defense of
their conduct . . .” rendered them pragmatically unavail-
able to the plaintiff); see also Mahone, 537 F.2d at 926-27
(holding that an officer who was involved in the arrest
16 No. 09-2569
initiating case was pragmatically unavailable to the
plaintiff because of his association with the United
States in building its case, as well as his “interest in
seeing his police work vindicated by a conviction of the
defendant”).
In this case, Garibay was unquestionably physically
available to both parties. Villegas argues, however, that
Garibay was pragmatically unavailable to the defense
due to his status as a paid informant, his refusal to be
interviewed, and the allegations he lodged against
the defense. We have held that when a witness is physi-
cally available to both parties, the mere fact that the
witness was a government informant does not inevitably
establish that he was pragmatically available to testify
only on behalf of the prosecution. United States v.
Rollins, 862 F.2d 1282, 1298 (7th Cir. 1988) (citations omit-
ted); see also Tavarez, 626 F.3d at 905 (stating that “a wit-
ness’s status as a confidential informant does not neces-
sarily give rise to a sufficient relationship with the gov-
ernment so as to render her unavailable to the de-
fense”). Additionally, “[e]ven where a witness entirely
refuses to discuss a case with the defense, a missing
witness instruction may be appropriately denied.” United
States v. Keplinger, 776 F.2d 678, 702 (7th Cir. 1985); see also
United States v. Grizaffi, 471 F.2d 69, 74 (7th Cir. 1972)
(district court correctly refused to give missing witness
instruction where unindicted co-conspirator refused to
discuss the case with defense counsel, and defendant
chose not to call witness because of uncertainty regarding
his possible testimony).
No. 09-2569 17
The serious allegations made by Garibay that defense
counsel improperly tried to influence his testimony,
while a closer question, also did not render him prag-
matically unavailable to the defendant. The “bias” or
“prejudice” discussed in the case law is generally a
product of the uncalled witness’s status, usually as an
employee of the party opposing the instruction, or is
due to the witness having a personal stake in the convic-
tion of the defendant. See Yumich, 452 F.2d at 64;
Mahone, 537 F.2d at 926-27. Here, while Garibay had a
personal stake in the completion of the trial, given that
he was in custody under a material witness warrant
and would not be released until after trial, he did not
have a personal stake in any particular outcome, and
was not in the type of employee relationship with the
government that would render him biased in its favor.
At the time of trial, Garibay was no longer a working
informant, and no longer expected to receive an immigra-
tion benefit from his cooperation. Additionally, as the
district court found, Garibay made statements that he
was angry at the government for keeping him detained,
cut off interviews with the federal authorities, and
refused to continue working with them. Under such
facts, we cannot find the bias required to reach the level
of pragmatic unavailability.
The district court also found that Garibay’s testimony
would not have been “helpful” to Villegas, stating that
Garibay’s testimony could be “extremely harmful” to
Villegas in that it could have “obliterate[ed] your entrap-
ment defense.” We note that “helpful” in the context of
whether a missing witness instruction is appropriate has
18 No. 09-2569
been found to mean “relevant” and “non-duplicative,”
United States v. Cochran, 955 F.2d 1116, 1123 (7th Cir. 1992).
However, other courts have noted that where the
defense seeks the “dual benefit of avoiding . . . potentially
harmful testimony at trial, while at the same time
obtaining the advantage of a negative inference drawn
by the jury about the government’s failure to produce . . .
[the] witness . . . the trial court [is] under no obligation
to grant the motion for a ‘missing witness’ instruction.”
United States v. Spinosa, 982 F.2d 620, 633 (1st Cir. 1992);
see also United States v. Torres, 845 F.2d 1165, 1170 (2d Cir.
1988) (stating that “courts have been reluctant to find
a witness practically unavailable when it appears that
the defense has no real interest in calling the witness
to the stand, but merely is engaged in a form of games-
manship in an effort to obtain a missing witness
charge”) (citing United States v. Bramble, 680 F.2d 590, 592
(9th Cir. 1982)). Here, the district court did attribute the
defendant’s lack of willingness to call Garibay to “strat-
egy,” and we do not find the resulting denial of the
instruction to be an abuse of discretion.
The government notes that the district court did not
prevent the defense from raising the fact that the gov-
ernment did not call Garibay in its closing argument,
and defense counsel made numerous references to his
absence. We have found that when a party is able to
make such an argument, the refusal to grant the instruc-
tion is not reversible error. See Yumich, 452 F.2d at 64;
United States v. Valles, 41 F.3d 355, 360 (7th Cir. 1994) (“Nor,
given that defense counsel was permitted to argue the
inferences in closing, do these assertions [of error in
No. 09-2569 19
declining the missing witness instruction] substantiate
a claim that Valle’s rights were prejudiced.”). Other courts
have held that where a trial court allows counsel to
argue the inference, showing an abuse of discretion for
failure to give a missing witness charge is more diffi-
cult. See, e.g., Torres, 845 F.2d at 1171 (noting that where
a trial court allows counsel to argue the infer-
ence, reversal for failure to give missing witness charge
is “even more suspect”). At oral argument, Villegas
argued that if a criminal defendant had to rely solely
on his argument during closing that the government
failed to call a witness (without the benefit of an instruc-
tion), the government would simply argue in return that
the defense itself has the power to call and summon
witnesses. That is exactly what the government in this
case did (“Well, ladies and gentlemen, what the
defendant didn’t tell you is that he has the same exact
subpoena power to bring any witness that he wants
into this courtroom just like the Government does.”). We
have found that where the defendant himself has
broached the subject of a missing witness by asking the
jury to penalize the government for its failure to
produce the witness, a prosecutor’s argument to the
effect that the defendant has the opportunity to call
witnesses is proper. United States v. King, 150 F.3d 644, 649
(7th Cir. 1998); United States v. Sblendorio, 830 F.2d
1382, 1393 (7th Cir. 1987) (finding that the prosecutor’s
observation that the defense could produce a certain
witness or witnesses if it wished neither alters the
burden of proof nor penalizes the exercise of a constitu-
tional right, rather, the argument merely conveys infor-
mation that “[t]he jury is entitled to know”). In reality,
20 No. 09-2569
then, the government’s argument that the defendant
could have called the missing witness effectively nullifies
any benefit that the defendant obtains from raising a
missing witness issue before the jury. While this is
proper, relying on the defendant’s ability to argue that a
witness was missing to find no prejudice may not, in
fact, be warranted, given that the defendant in these
circumstances does not, in essence, gain any benefit
from arguing the inference. However, because we do
not rely in any way on the defendant’s closing argument
in this case, we need not address the effect of King and
Sblendorio on the question of whether a defendant’s
opportunity to argue the missing witness inference in
its closing results in a finding of no prejudice.
Accordingly, we find that the district court did not
abuse its discretion in denying the missing witness in-
struction.
C. Admission of Conversations and Prior Conviction
Villegas argues that the trial court erred when it ruled
that the defense had opened the door to the government’s
introduction of a prior conviction, statements about
Villegas’s alleged drug dealing, and recorded conversa-
tions regarding other alleged crimes. We review a
district court’s evidentiary rulings for an abuse of discre-
tion, United States v. Avila, 557 F.3d 809, 819 (7th Cir.
2009), and will reverse only if we discover an error that
had a “substantial and injurious effect or influence on
the determination of the jury.” Cerabio LLC v. Wright
Med. Tech., Inc., 410 F.3d 981, 994 (7th Cir. 2005).
No. 09-2569 21
When a party opens the door to evidence that would be
otherwise inadmissible, that party cannot complain on
appeal about the admission of that evidence. United
States v. Gilbertson, 435 F.3d 790, 797 (7th Cir. 2006); see also
United States v. Martinez, 988 F.2d 685, 702 (7th Cir.
1993). The district court is within its discretion in
allowing the testimony if the objecting party has already
opened the door for such testimony. United States v.
Anifowoshe, 307 F.3d 643, 649 (7th Cir. 2002); see also
United States v. Touloumis, 771 F.2d 235, 241 (7th Cir.
1985) (“This circuit has held on numerous occasions
that when a party questions a witness on a subject, even
though that subject may not be strictly relevant to
the case, the party cannot complain on appeal if the
opposing party subsequently introduces evidence on the
same subject.”). However, “[w]here the rebuttal evidence
does not directly contradict the evidence previously
received, or goes beyond the necessity of removing preju-
dice in the interest of fairness, it is within the district
court’s discretion to deny its admittance.” Martinez, 988
F.2d at 702. Indeed, the “open door” doctrine’s sound-
ness depends on the specific situation in which it is
used and thus calls for an exercise of judicial discretion.
21 C. Wright & K. Graham, Federal Practice and Proce-
dure § 5039, p. 199 (1977); see also Beech Aircraft Corp. v.
Rainey, 488 U.S. 153, 177 (1988) (Rehnquist, J., dissenting).
Villegas argues that the district court erred when it
allowed: (1) the government to inquire into Villegas’s 2004
conviction for financial identity theft; (2) Special Agent
Burke to testify that Garibay had told Burke that
he knew Villegas to be a drug dealer; and (3) admitted
22 No. 09-2569
into evidence the April 2, 2007 unredacted conversation
between Villegas and Garibay which contained discus-
sions about alleged criminal activity, including drugs.
Villegas argues that the defense did not open the door
to such evidence on cross-examination.
The defense specifically inquired into what Special
Agent Burke knew about Villegas at the early stages of
the investigation, (“Is the background of the potential
defendant, the target of this investigation of this
attempted robbery, is that important to you, when you’re
approached by Mr. Garibay, the Government infor-
mant?”), and what he knew about the true nature of the
relationship between Villegas and Garibay, (“Did you
check out where the two of them met?”). Additionally, the
defense implied that Villegas was simply a law-abiding
and unwitting client of Garibay’s, asking, “[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
inquired into the number of phone calls made between
Villegas and Garibay, and suggested that through these
numerous calls, Garibay “pushed” Villegas to attend
meetings and take part in the offense. The defense
also specifically asked if Special Agent Burke elicited
information from Garibay at the February 23, 2007
meeting regarding the extent of their mortgage broker-
client relationship. During this meeting with the FBI,
Garibay told Special Agent Burke that he knew Villegas
to be a drug dealer who dealt a kilogram of cocaine a
month. However, this information was not initially avail-
able to the jury because the government avoided asking
No. 09-2569 23
Special Agent Burke about what Garibay told him re-
garding Villegas’s alleged drug dealing.
As the record shows, the cross-examination related
specifically to what was initially left out of the trial—
namely, what Special Agent Burke really knew about
Villegas’s background, and the true nature of the rela-
tionship between Villegas and Garibay at the time of the
initial investigation. Given that the jury was left with
an incomplete picture of the course of the early inves-
tigation and the extent to which Garibay and Villegas’s
relationship went beyond a client-broker one, the court
did not abuse its discretion in allowing the government
to inquire about the agent’s knowledge of Villegas’s
criminal history (including the financial identity theft
conviction), or to inquire about what Garibay told the
agent regarding Villegas’s alleged drug dealing.
Additionally, with respect to the prior conviction, the
trial court specifically instructed the jury that Villegas’s
2004 conviction could be used solely for determining
what Burke knew at the time that he began his investi-
gation “and for no other purpose.” This court has gen-
erally held that “where a limiting instruction is given . . .
the error usually will be harmless.” United States v.
Rogers, 542 F.3d 197, 201 (7th Cir. 2008). But see Jones
v. Basinger, 635 F.3d 1030, 1055 (7th Cir. 2011) (finding
that even repeated instructions cannot render harmless
“serious” prejudicial error); United States v. Ochoa-Zarate,
540 F.3d 613, 620 (7th Cir. 2008) (stating that the presump-
tion that a jury will follow instructions is overcome
when there is an “overwhelming probability” that the
24 No. 09-2569
jury was unable to follow that instruction). In this case,
there is no reason to believe that the jury was unable to
follow the proper instruction, or any indication that
the prior conviction amounted to “serious” prejudicial
error, so the district court did not abuse its discretion.
The admission of the unredacted April 2, 2007 con-
versation between Villegas and Garibay in which the
two discuss other alleged criminal activities is a closer
question. The district court found this conversation
admissible because the acts discussed during the con-
versations were “inextricably intertwined” with the
charged offense as they completed the picture of
Garibay and Villegas’s interactions. We have, however,
more recently held that “resort to inextricable inter-
twinement is unavailable when determining a theory
of admissibility.” United States v. Gorman, 613 F.3d 711,
719 (7th Cir. 2010).
Before admitting the conversation, the court decided
to allow Villegas’s entrapment defense based on the
defense’s earlier request and the nature of the cross-
examination of Special Agent Burke. Alternatively, the
court allowed the April 2nd conversation as evidence
of predisposition and whether Villegas was coerced by
Garibay. After the conversation was read into evidence,
the court instructed the jury that the evidence in the
recordings relating to acts other than those charged
could be considered “only on the question of the rela-
tionship between [Garibay] and the defendant and on
an issue of entrapment.”
Villegas argues that he did not open the door to these
later conversations because he only inquired into the
No. 09-2569 25
nature of the relationship at the time the investigation
began and that the alleged acts were not “inextricably
intertwined.” However, the court specifically admitted
the evidence on the issue of entrapment as well, a
defense that Villegas initially sought. Where a defendant
offers a defense of entrapment, the government must
prove either that it did not induce the defendant to
commit the crime, or that the defendant had a predis-
position to commit the crime. United States v. Lewis, 641
F.3d 773, 781 (7th Cir. 2011) (citing United States v.
Akinsanya, 53 F.3d 852, 858 (7th Cir. 1995)). The April 2nd
conversation showed a willingness to discuss criminal
activity that was relevant to rebutting the level of induce-
ment claimed by Villegas. While the district court did not
specifically state that it was admitting the conversation
to allow the government to rebut the inducement argu-
ment, it did state that the conversation was relevant to
the earlier phone conversations between Villegas and
Garibay which the defense painted as one involving
“pushing.” 2 Villegas also argues that the drug crimes
2
Villegas does not argue that the prior alleged drug acts were
not similar enough to the charged conduct or close enough
in time to be admissible, and we therefore take no position
on whether the crimes should have been admitted for that
specific purpose. See United States v. Swiatek, 819 F.2d 721, 727-28
(7th Cir. 1987) (finding that when a defendant employs an
entrapment defense, evidence of prior bad acts is admissible
to prove predisposition “because in such a case the defendant’s
predisposition to commit the charged crime is legitimately
(continued...)
26 No. 09-2569
discussed in the April 2nd conversation are unduly
prejudicial, but we do not find that the prejudice out-
weighs the probative value as to the level of inducement
involved between Garibay and Villegas.
Therefore, the district court did not abuse its discretion
in admitting evidence of Villegas’s prior felony conviction
and his alleged drug activity.
D. The Five-Level Sentencing Enhancement
Villegas next objects to 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 pos-
sessed.” Specifically, he challenges the finding that he
“possessed” a firearm such that the enhancement
should be included in the calculation of the guideline
sentence. We review a district court’s application of
the sentencing guidelines de novo and its findings of
fact for clear error. United States v. Samuels, 521 F.3d 804,
815 (7th Cir. 2008). A judge commits a procedural error
at sentencing if she calculates the guidelines incorrectly,
treats the guidelines as mandatory, fails to consider the
(...continued)
at issue”, but that to be admissible, the evidence must show
an act that is similar enough and close enough in time to be
relevant to the matter at issue, and its probative value must
not be substantially outweighed by the danger of unfair preju-
dice).
No. 09-2569 27
18 U.S.C. § 3553(a) factors, or inadequately explains
the chosen sentence. Gall v. United States, 552 U.S. 38, 51
(2007). The government bears the burden of proving by
a preponderance of the evidence that a sentencing en-
hancement such as the one at issue applies. United States
v. Womack, 496 F.3d 791, 797 (7th Cir. 2007).
In applying the enhancement, the district court relied
in part on United States v. Bolden, 132 F.3d 1353 (10th
Cir. 1997). In Bolden, the defendant planned a robbery of
a bank with a confidential informant. The two had
agreed that the informant would obtain a firearm, and
the informant obtained a weapon from law enforcement.
On the day of the planned robbery, the defendant and
the informant arrived at the bank. The informant left
the car with the firearm and walked towards the bank, at
which point the defendant was arrested. Id. at 1355. The
Tenth Circuit upheld the application of a firearm en-
hancement, finding that “the government was . . . not
required to prove that the firearm was actually ‘. . . pos-
sessed’ during the robbery, but only that it was Bolden’s
intent that such conduct would take place.” Id. at 1356.
The court also rejected Bolden’s argument that the pos-
session of the firearm by the informant could not be
attributed to him as relevant conduct.
However, in Bolden, the base offense level was cal-
culated under section 2X1.1 of the Guidelines, which
covers attempt, solicitation, and conspiracy not covered
by a specific offense guideline, and which specifically
includes an adjustment for “any intended offense
conduct that can be established with reasonable cer-
28 No. 09-2569
tainty.” See U.S.S.G. § 2X1.1 (1997). Here, Villegas’s base
offense level and adjustments were calculated under
section 2B3.1, which does not contain the same language.
While we have not specifically resolved this issue, several
of our sister circuits have found that where a statute
prohibits both completed robberies and attempts, U.S.S.G.
§ 2X1.1 is not involved and the court only looks to the
general guideline. See United States v. Van Boom, 961 F.2d
145, 146-47 (9th Cir. 1992); United States v. Williams, 891
F.2d 962, 965 (1st Cir. 1989); United States v. Toles, 867
F.2d 222, 223 (5th Cir. 1989). In this case, 18 U.S.C. § 1951
proscribes both the completed act as well as attempts.
See 18 U.S.C. § 1951(a) (“Whoever in any way or
degree obstructs, delays, or affects commerce or the
movement of any article or commodity in commerce, by
robbery or extortion or attempts or conspires so to do . . . .”)
(emphasis added). We need not resolve or even address
this issue because neither party asserts that section 2X1.1
applies, nor did the pre-sentence report or the court
reference section 2X1.1 in calculating the applicable
guidelines. However, we note that the “any intended
offense conduct” language used in section 2X1.1 has no
place here, nor does the Tenth Circuit’s decision in Bolden.
The district court also relied in part on United States v.
Wallace, 212 F.3d 1000 (7th Cir. 2000). In that case,
Wallace and his brother decided to rob a bank. Before the
robbery, the defendant’s brother said he would “take care
of” the bank security guard, and Wallace testified that
he knew his brother owned a gun. Id. at 1002. Wallace’s
brother did, in fact, brandish the gun and point it at
tellers and guards while the defendant was collecting
No. 09-2569 29
money. Id. The defendant later denied knowing that his
brother carried the gun into the bank or used the gun
during the commission of the robbery. Id. We found a six-
point enhancement for the “use” of a firearm appro-
priate where Wallace had pled to aiding and abetting
armed bank robbery, and where there was “more
than sufficient evidence at trial to show that [Wallace]
knew his brother either planned to carry a gun or that
he actually used a gun during the robbery.” Id. at 1005.
In Wallace, however, not only was Wallace found guilty
of armed bank robbery, but a gun was actually “used”
during the attempted commission of the offense.
We find that the language of the guidelines sup-
ports the five-level enhancement in this case. Section
1B1.3(a)(1)(B) of the Sentencing Guidelines clarifies the
type of conduct that is relevant to determine the offense
level under Chapter Two. It provides that a court may
consider, “in the case of a jointly undertaken criminal
activity . . . all reasonably foreseeable acts and omissions
of others in furtherance of the jointly undertaken
criminal activity, that occurred during the commission
of the offense of conviction, in preparation for that offense,
or in the course of attempting to avoid detection or re-
sponsibility for that offense . . . .” U.S.S.G. § 1B1.3(a)(1)(B)
(emphasis added). Thus, Villegas is liable for the “reason-
ably foreseeable acts and omissions” of Garibay, the
informant, that occurred “in preparation” for the offense.
In this case, Villegas on two occasions claimed that
his “friend” in the armored vehicle would just hand over
the money; however, Garibay specifically stated to
30 No. 09-2569
Villegas that “if the guy tries to pull one out, then I do. . . .
I’m going to have to shoot him.” On the night before
the attempted robbery, when Garibay showed Villegas
the gun and bulletproof vest, Villegas asked “[d]oes it
work and everything,” and inquired as to whether
Garibay was planning to wear the vest. There was also
testimony at trial that law enforcement placed the gun
in Garibay’s car the morning of the attempted offense.
So Garibay “possessed” the gun “in preparation” for the
attempted offense, and this possession was reasonably
foreseeable to Villegas. It does not matter that Villegas
himself never possessed the weapon.
We note, however, that there may be cases where reli-
ance on the “in preparation of” language of U.S.S.G.
§ 1B1.3(a)(1)(B) would result in too broad an application
of the sentencing enhancement in attempt cases where
the robbery is thwarted, especially where the time
between that preparation and the attempted offense is
significant. Additionally, if, for example, an accomplice
discussed and showed a gun to a defendant some time
before the attempted offense, but did not actually bring
that gun when the attempt is carried out, a sentencing
court would have to consider whether the later absence
of a gun could negate the previous “possession” relied
upon for the enhancement. See U.S.S.G. § 1B1.3(a)(1)(B).
In this case, however, Villegas does not challenge
Garibay’s possession; he only argues that Villegas
himself never possessed the weapon, and never argued,
nor could he, that the gun was not present on the day
of the attempted robbery. We therefore find that the
enhancement under U.S.S.G. § 2B3.1(b)(2)(C) was ap-
plicable.
No. 09-2569 31
We also reject Villegas’s claim of “sentencing entrap-
ment,” which occurs when an individual predisposed
to commit a lesser crime commits a more serious offense
as a result of “unrelenting government persistence.” See
United States v. Hale, 448 F.3d 971, 988 (7th Cir. 2006)
(citing United States v. Gutierrez-Herrera, 293 F.3d 373,
377 (7th Cir. 2002); United States v. Estrada, 256 F.3d 466,
473-74 (7th Cir. 2001). We find that the facts show that
Villegas had the willingness to violate the law with the
possession of a gun “without extraordinary induce-
ments.” Estrada, 256 F.3d at 475.
III. CONCLUSION
For the foregoing reasons, Villegas’s conviction and
sentence are A FFIRMED.
8-23-11