United States of America v. Francisco Villanueva, also known as Gumby, also known as Pancho

United States Court of Appeals
For the Eighth Circuit
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No. 21-3549
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Francisco Villanueva, also known as Gumby, also known as Pancho,
lllllllllllllllllllllDefendant - Appellant.
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No. 21-3886
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Estevan Baquera, also known as Obama,
lllllllllllllllllllllDefendant - Appellant.
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No. 22-1405
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Adan James Corona, also known as Ace Boogie,
lllllllllllllllllllllDefendant - Appellant.
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Appeals from United States District Court
for the District of South Dakota - Western
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Submitted: May 7, 2024
Filed: September 16, 2024
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Before COLLOTON, Chief Judge, SHEPHERD and STRAS, Circuit Judges.
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COLLOTON, Chief Judge.
These appeals concern a criminal prosecution involving a murder in Indian
country. Francisco Villanueva and Adan Corona were convicted at trial of first-
degree murder and other offenses; they challenge their convictions. Estevan Baquera
pleaded guilty to acting as an accessory to the murder after the fact; he appeals his
sentence. We conclude that there is no reversible error, and affirm the judgments of
the district court.1
1The Honorable Jeffrey L. Viken, United States District Judge for the District
of South Dakota, now retired.
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I.
The crimes arose from a dispute over an alleged drug debt. Vincent Von
Brewer III owed money to members of a gang known as the Eastside Oldies. In
October 2016, Villanueva gathered a team of people to collect the money from
Brewer. The group included Villanueva, Corona, Baquera, a juvenile with the initials
H.C., and others.
The crew traveled in two cars and found Brewer at a community center in Pine
Ridge, South Dakota. Brewer was present with his cousin, Jordan “Sky” Brewer, and
two minors. The Villanueva group stopped the vehicles in front of Brewer. They got
out with firearms in hand and their faces largely covered. The prosecution
maintained that Villanueva and Corona fatally shot Brewer in the parking lot of the
community center as he attempted to escape.
A grand jury charged Villanueva and Corona with two counts of murder in the
first degree, see 18 U.S.C. §§ 2, 1111(a), 1152, conspiracy to commit assault with a
dangerous weapon, see id. §§ 113(a)(3), 371, 1152, use of a firearm during a crime
of violence, see id. § 924(c)(1)(A)(iii), and unlawful possession of ammunition as
felons, see id. §§ 922(g)(1), 924(a)(2). The jury convicted them on all counts, and the
court sentenced both to life imprisonment.
Baquera pleaded guilty to acting as an accessory to Brewer’s murder after the
fact. See id. § 3. Among other things, Baquera helped to disguise a getaway car by
placing stolen license plates on the vehicle. At sentencing, the district court varied
upward from the advisory guideline range of 78 to 97 months’ imprisonment, and
imposed the statutory maximum sentence of 180 months’ imprisonment. The district
court relied in part on a finding that Baquera pointed his firearm at the crowd to
protect the gang members who committed the attack on Brewer.
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II.
Villanueva first asserts that the district court erred when it allowed the
prosecution to present Sky Brewer’s eyewitness identification of Villanueva. At trial,
Sky testified that one of the armed men did not cover his face. A few days after the
murder, Brewer’s sister showed Sky a photograph that she found on a Facebook page
that was associated with the Eastside Oldies gang. Sky identified one of the three
people in the photograph as the armed man whose face was not covered at the murder
scene. Brewer’s sister later identified the man in the photograph as Villanueva. At
trial, Sky identified the attacker without the face covering as Villanueva.
Villanueva asserts that Sky’s trial testimony resulted from an eyewitness
identification procedure that was unduly suggestive. An eyewitness identification
made under a police-arranged procedure that is suggestive and unnecessary may
violate a defendant’s right to due process if the procedure creates a substantial
likelihood of misidentification. Neil v. Biggers, 409 U.S. 188, 201 (1972). The Due
Process Clause, however, “does not require a preliminary judicial inquiry into the
reliability of an eyewitness identification when the identification was not procured
under unnecessarily suggestive circumstances arranged by law enforcement.” Perry
v. New Hampshire, 565 U.S. 228, 248 (2012).
The Due Process Clause is not implicated here. Sky identified Villanueva in
a photograph that Brewer’s sister displayed on her own initiative. There is no
evidence that law enforcement officers arranged the display or had any involvement
in Sky’s identification of Villanueva. There was thus no error in allowing Sky’s
testimony.
Villanueva also asserts that the district court erred by excluding testimony of
a defense expert, a psychologist who studies social cognition. In a pre-trial report,
the expert opined that Sky’s identification of Villanueva from the Facebook
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photograph was “highly suggestive,” and that Sky’s courtroom testimony identifying
Villanueva would be “highly unreliable.” The district court excluded the expert’s
testimony because it would “invade the province of the jury and may well confuse the
jury in performing its task of judging the weight and credibility of Sky’s
identification.” Villanueva later suggested at a pretrial conference that the expert
should redact her conclusion that “the identification should not be presented to the
jury, by virtue of the unfairness associated with it,” but did not specify what would
remain of the expert’s proposed testimony. At trial, after Sky and Brewer’s sister
testified about the identification of Villanueva, the defense shifted back and argued
for allowing the expert to explain “the high likelihood and suggestivity associated
with that identification,” and “the interplay” between Sky and Brewer’s sister
regarding the photograph. The court adhered to its prior ruling, and Villanueva
declined to make a further offer of proof.
This court has frowned on the use of expert testimony regarding the
believability or reliability of a witness’s identification testimony. In United States v.
Purham, 725 F.2d 450 (8th Cir. 1984), this court affirmed exclusion of an expert who
would have testified about “the inherent inaccuracies of eyewitness identification.”
Id. at 454. The court cited unfair prejudice that might have resulted because “the aura
of reliability and trustworthiness that surrounds scientific evidence outweighed any
small aid the expert testimony might have provided.” Id. Similarly, in United States
v. Blade, 811 F.2d 461 (8th Cir. 1987), the court affirmed the exclusion of a defense
expert who would have testified “about the three-stage process involved in
eyewitness identification,” and “the psychological factors which prevent a witness
from making an accurate identification.” Id. at 464.
This court has since reiterated that “[t]he evaluation of eyewitness testimony
is for the jury alone,” United States v. Kime, 99 F.3d 870, 884 (8th Cir. 1996), that an
expert may not offer an opinion about the trustworthiness of an eyewitness’s
identification testimony, id., and that “[d]efense counsel is ‘capable of exposing to
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the jury any potentially unreliable bases underlying’ the eyewitness identification
‘through cross-examination.’” United States v. Nickelous, 916 F.3d 721, 724 (8th Cir.
2019) (quoting Kime, 99 F.3d at 884). We have noted by reference to other
authorities that “the powerful nature of expert testimony, coupled with its potential
to mislead the jury” are sound reasons to leave assessment of eyewitness
identifications to the jury in light of direct and cross examination of the witness.
Kime, 99 F.3d at 884 (quoting United States v. Rincon, 28 F.3d 921, 926 (9th Cir.
1994)). The court has been “especially hesitant” to require admission of expert
testimony on identification “unless the government’s case against the defendant
rested exclusively on uncorroborated eyewitness testimony.” Id. at 885 (quoting
Blade, 811 F.2d at 465).
The district court’s ruling on the expert’s proposed testimony was in line with
our precedents and did not constitute an abuse of discretion. We also reject
Villanueva’s contention that the case should be remanded for a hearing on the
proposed expert testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993). The district court considered the expert’s qualifications and her
proffered expert report. The court afforded Villanueva an adequate opportunity to be
heard on the proposed expert testimony. A further hearing was not required. See
Miller v. Baker Implement Co., 439 F.3d 407, 412 (8th Cir. 2006).
III.
Villanueva and Corona next contend that the district court abused its discretion
by declining a proposed jury instruction about the testimony of a cooperating juvenile
witness. H.C. testified at trial that Villanueva and Corona shot Brewer. He also
identified Baquera as a participant in the group that carried guns and assaulted
Brewer. H.C. admitted that he carried a firearm and directed it toward the crowd
while others confronted Brewer.
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In an effort to impeach H.C., the defense elicited testimony that the government
declined to move for transfer of H.C.’s case from juvenile court to adult court, and
that the maximum sanction for prosecution in juvenile court was incarceration
through H.C.’s twenty-first birthday. Before H.C. testified, the court instructed the
jury that the government did not move for transfer, and that whether the testimony of
a witness may have been influenced by the witness’s hope of remaining in juvenile
court is for the jury to decide.
At the close of the evidence, the defendants requested that the court include a
final jury instruction regarding a cooperating juvenile witness. The instruction would
have explained that the government’s decision to proceed against H.C. as a juvenile
exposed him to a maximum term of detention that was substantially less than the
maximum applicable term if he had been charged as an adult. The instruction further
would have stated that whether testimony of a witness may have been influenced “by
his desire to please the government or to get prosecuted as a juvenile” is for the jury
to decide.
The district court declined the proposed instruction. The court explained that
the proposal would single out one witness’s testimony as compared to others, and
would cause the court to comment on the evidence in the case. The court concluded
that other instructions adequately advised the jury about how to evaluate witness
testimony.
We conclude that there was no abuse of discretion. The jury instructions
already informed the jury that in weighing the evidence, the jury may consider
whether testimony may have been influenced by a plea agreement or by the
government’s promise not to prosecute further. The court also referred the jury back
to instructions given during the trial, including the specific instruction regarding
H.C.’s testimony. The court directed the jury to consider all of the instructions as a
whole. The instructions were therefore sufficient to inform the jury about how they
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could weigh H.C.’s testimony in light of the government’s decision to proceed against
him only as a juvenile. The defendants were not entitled to a specific final instruction
regarding juvenile accomplice testimony.
IV.
Corona challenges the district court’s order denying his motion to suppress
statements that he made to a police officer during a traffic stop and evidence derived
therefrom. In 2016, an officer in Colorado stopped a vehicle in which Corona was
a backseat passenger. The officer noticed that Corona appeared extremely nervous
and that his eyes kept shifting directions. The officer suspected that Corona was a
gang member because the stop occurred in a high-crime area where two street gangs
were active, and Corona exhibited tattoos and clothing consistent with membership
in the Eastside Oldies. The officer asked Corona for identification; he denied having
documents and gave the officer a false name of “Jonathan Rojas.”
When the officer learned that Corona had provided a false name, he removed
Corona from the vehicle to conduct a protective pat-down search of his person for
weapons. The officer noticed that Corona was shaking and sweaty despite the cold
weather. The officer saw Corona looking around in a manner that led the officer to
believe that Corona might flee. The officer then handcuffed Corona and walked him
to the back seat of the patrol vehicle. The officer asked again for Corona’s identity,
and this time Corona provided his true name. Corona admitted that there were
warrants for his arrest, and the officer asked whether there were any weapons in the
vehicle. Corona disclosed that there was a firearm in the car; officers found the gun
and seized it. Officers then returned to the patrol car and gave Corona the warnings
prescribed by Miranda v. Arizona, 384 U.S. 436 (1966). Corona admitted that he had
possessed the gun and concealed it in the car. Evidence at trial suggested that the
firearm was used in the attack on Brewer.
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Corona contends that the officer who questioned him during the traffic stop
violated his rights by proceeding without giving the Miranda warnings. The
warnings are required before an officer conducts an interrogation of a suspect who
is in custody. A suspect is in custody when “there is a ‘formal arrest or restraint on
freedom of movement’ of the degree associated with a formal arrest.” California v.
Beheler, 463 U.S. 1121, 1125 (1983) (per curiam). The district court ruled that there
was no violation of the Miranda rule.
Persons detained temporarily pursuant to ordinary traffic stops are not “in
custody” for the purposes of Miranda. Berkemer v. McCarty, 468 U.S. 420, 440
(1984). As with a suspect detained for an investigative stop under Terry v. Ohio, 392
U.S. 1, 30-31 (1968), see United States v. Pelayo-Ruelas, 345 F.3d 589, 592 (8th Cir.
2003), a traveler in a traffic stop is temporarily deprived of freedom of action, but he
is not typically subjected to a degree of restraint that is associated with formal arrest.
Miranda warnings are thus not required.
Corona’s roadside detention falls within this rule. He was detained for only
five minutes before informing an officer that there was a firearm in the vehicle. At
that point, the detention was “temporary and brief” and was conducted at least some
degree in public. Berkemer, 468 U.S. at 437-38. Although officers handcuffed
Corona and brought him into the patrol car while checking identification, these
measures did not amount to the functional equivalent of a formal arrest. We have
held that neither handcuffing, United States v. Rodriguez, 711 F.3d 928, 935 (8th Cir.
2013), nor questioning in a patrol car, United States v. Boucher, 909 F.2d 1170, 1174
(8th Cir. 1990), necessarily triggers the Miranda rule. Under the circumstances with
Corona, where handcuffs and venue were used briefly to protect officer safety and
prevent flight, the combination does not present “the same inherently coercive
pressures as the type of station house questioning at issue in Miranda.” Howes v.
Fields, 565 U.S. 499, 509 (2012); see United States v. Paishon, 854 F. App’x 162,
164-65 (9th Cir. 2021) (Collins, J., concurring). The initial five-minute phase of the
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encounter was an ordinary traffic stop or Terry stop during which Miranda warnings
were not required. The district court correctly denied Corona’s motion to suppress.2
V.
Baquera appeals his sentence. He argues that the district court relied on clearly
erroneous facts and imposed an unreasonable sentence. In particular, he contends that
the court clearly erred by relying on a finding that Baquera aimed his firearm at
bystanders during the assault on Brewer. The court found that Baquera participated
in the beating of Brewer and held a firearm on the crowd outside the community
center to protect the gang members who carried out the attack. Because the court
relied in part on H.C.’s testimony at the trial of Villaneuva and Corona, the parties
agree that we should supplement the record on appeal to include that testimony. See
Fed. R. App. P. 10(e).
We conclude that there was no clear error in the district court’s finding that
Baquera pointed a firearm at the crowd during the attack on Brewer. H.C. testified
that Baquera carried an AK-47 rifle when he got out of a car at the community center.
He testified that Baquera pointed his gun at Brewer and participated in beating
Brewer before the fatal shooting. Baquera’s presentence report, to which there was
no objection, stated that when Baquera and others exited the vehicles at the
community center, “[t]hey were all armed with firearms,” and “[i]nitially, the group
2Because there was no custodial interrogation, we need not decide whether the
narrow public-safety exception to Miranda recognized in New York v. Quarles, 467
U.S. 649 (1984), applies in this situation. Cf. United States v. Becerra, 958 F.3d 725,
730 (8th Cir. 2020) (holding that exception applied where arrestee already disclosed
that he had a gun in his car, and officers saw a bulge in arrestee’s pocket that could
have been another gun); United States v. Liddell, 517 F.3d 1007, 1009-10 (8th Cir.
2008) (holding that exception applied where officers already found a firearm hidden
in the suspect vehicle and were about to search the vehicle incident to an arrest).
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pointed their firearms at a bystander.” In his plea agreement, Baquera admitted that
he “assisted in keeping anyone from approaching during the assault and murder of
Brewer.” It was reasonable for the district court to infer that Baquera was among “the
group” that pointed firearms at a bystander while Baquera admittedly helped to keep
anyone from approaching during the attack.
Baquera also argues that his sentence is unreasonable because it is not
commensurate with sentences imposed on others involved in the attack on Brewer.
The district court considered other offenders and made an explicit effort to avoid
unwarranted disparities in sentencing. As to one offender who received the same
sentence as Baquera, the court could not “parse out the difference” or “slice too
finely,” because “in terms of the behavior at the scene and the homicide of Vinny
Brewer and the events that followed to avoid detection, there’s not much difference.”
Another offender who provided one of the vehicles received a shorter sentence of
nine years’ imprisonment. But the government pointed out that the other offender did
not assault Brewer, while Baquera participated in beating him before the shooting.
In any event, “the statutory direction to avoid unwarranted sentence disparities, see
18 U.S.C. § 3553(a)(6), refers to national disparities, not differences among co-
conspirators.” United States v. Fry, 792 F.3d 884, 892 (8th Cir. 2015). The district
court did not abuse its discretion in selecting a sentence.
* * *
The judgments of the district court are affirmed. Baquera’s motion to
supplement the record is granted.
STRAS, Circuit Judge, concurring in part and concurring in the judgment.
In my view, whether Adan Corona was in custody when the officer asked him
about the presence of weapons in the car is a close call. What is not close is the
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application of Miranda’s public-safety exception, which justifies the question either
way. As we have explained, “[n]o Miranda warnings [are] required [when] ‘police
officers . . . ask questions reasonably prompted by a concern for . . . public safety,’
even when the potential threat is to the officers themselves.” United States v.
Becerra, 958 F.3d 725, 730 (8th Cir. 2020) (quoting New York v. Quarles, 467 U.S.
649, 656 (1984)).
The presence of a firearm in the car posed a potential threat to the officers. But
it posed an even bigger threat to the car’s occupants, including a toddler who had
been sitting next to Corona in the backseat. See United States v. Liddell, 517 F.3d
1007, 1009–10 (8th Cir. 2008) (holding that the risk of injury from “mishandling . . .
unknown firearms or drug paraphernalia” justifies asking about them even if the
suspect can no longer reach them). The officer testified during the suppression
hearing, in fact, that he asked the question out of concern for the toddler’s safety, an
“objectively reasonable” public-safety justification under the circumstances. Id. at
1009. I would start and end the analysis there.
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