United States v. Travis McGhee

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 23, 2014
• Docket: 12-15705
• Status: Unpublished

Opinion

Case: 12-15705 Date Filed: 01/23/2014 Page: 1 of 9

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ____________________________

No. 12-15705 ___________________________

D.C. Docket No. 0:12-cr-60027-JIC-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TRAVIS MCGHEE,

Defendant-Appellant.

__________________________

Appeal from the United States District Court for the Southern District of Florida __________________________

(January 23, 2014)

Before PRYOR and JORDAN, Circuit Judges, and FRIEDMAN, * District Judge.

PER CURIAM:

* Honorable Paul L. Friedman, United States District Judge for the District of Columbia, sitting by designation. Case: 12-15705 Date Filed: 01/23/2014 Page: 2 of 9

Travis McGhee appeals his convictions for conspiracy to possess less than

500 grams of cocaine, with the intent to distribute, in violation of 21 U.S.C. § 846,

and attempt to possess less than 500 grams of cocaine, with the intent to distribute,

in violation of 21 U.S.C. § 846. The convictions stemmed from a government

sting operation in which a paid confidential informant and an undercover agent

proposed to Mr. McGhee the robbery of kilograms of cocaine from a drug

organization. Following a review of the record, and with the benefit of oral

argument, we affirm. 1

I

Mr. McGhee—who presented a defense of entrapment—first argues that the

government failed to prove, beyond a reasonable doubt, that he was predisposed to

commit the narcotics crimes of which he was convicted. As Mr. McGhee sees it,

at most the government showed that he was predisposed to commit a run-of-the-

mill robbery not involving drugs. We disagree. The government presented

evidence that (1) the undercover agent told Mr. McGhee that he worked for a

Colombian drug organization and that he was looking for people who could rob a

narcotics stash house of about 15 kilograms of cocaine; (2) Mr. McGhee and his

associates were to keep 10 kilograms of cocaine as their payment for the robbery;

1 Because we write for the parties, we assume their familiarity with the facts and procedural history, and set out only what is necessary to explain our decision. As to any issues not specifically addressed in this opinion, we affirm without further discussion. 2 Case: 12-15705 Date Filed: 01/23/2014 Page: 3 of 9

and (3) Mr. McGhee proposed keeping and selling all of the cocaine at $30,000 per

kilogram. Exercising de novo review, see, e.g., United States v. Robertson, 736

F.3d 1317, 1324 (11th Cir. 2013), we conclude that there was sufficient evidence

for a reasonable jury to conclude that Mr. McGhee was predisposed to commit the

offenses of conspiracy to possess, and attempt to possess, less than 500 grams of

cocaine, with the intent to distribute. See United States v. Haile, 685 F.3d 1211,

1219 (11th Cir. 2012).

II

Mr. McGhee next argues that he was deprived of his Fifth and Sixth

Amendment rights due to cumulative evidentiary errors at trial. We must decide

whether there was, in fact, error under the abuse of discretion standard, see United

States v. Troya, 733 F.3d 1125, 1131 (11th Cir. 2013), and, if so, whether any

cumulative error affected Mr. McGhee’s substantial rights. See United States v.

Baker, 432 F.3d 1189, 1223 (11th Cir. 2005). As we explain below, we are not

persuaded by Mr. McGhee’s cumulative error argument. As to some of the

rulings, there was no error, and as to others, any error was harmless.

The first alleged errors are evidentiary rulings by the district court excluding

evidence which Mr. McGhee wanted to use to impeach the testimony of the

informant. Evidence at trial showed that the informant, David Villamonte, was

stopped and cited for possession of marijuana by local police on January 4, 2012,

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about four weeks before the arrests in this case took place. At the time he was

issued the citation for possession of marijuana, Mr. Villamonte was the driver of a

car in which Mr. McGhee had been a passenger. Mr. Villamonte denied

possessing the marijuana. He told agents that he had run into Mr. McGhee at a gas

station, and that Mr. McGhee needed a ride because he had been in a fight or

dispute with his girlfriend. One of the agents interceded with state prosecutors on

behalf of Mr. Villamonte, and the marijuana charge against him was eventually

dropped.

Mr. McGhee wanted to present the testimony of the police officer who

stopped Mr. Villamonte on January 4, 2012, but the district court did not allow him

to do so, finding that the jury already knew of the stop (and of the federal agent’s

intervention on behalf of Mr. Villamonte) and that the testimony of the officer

would be about a collateral matter. The district court also denied Mr. McGhee’s

request for a Rule 17 subpoena for his girlfriend’s employment records (records

which Mr. McGhee wanted to use to show that his girlfriend was working on the

night in question and could not have gotten into a fight with him), finding that the

records would constitute improper impeachment. Although Mr. McGhee argues

that this evidence would have contradicted Mr. Villamonte’s denial of marijuana

possession, and would have helped his entrapment defense by showing that Mr.

Villamonte provided him with drugs, we find no abuse of discretion under Rule

4 Case: 12-15705 Date Filed: 01/23/2014 Page: 5 of 9

608(b). See, e.g., Sanchez-Velasco v. Secretary, Dep’t of Corr., 287 F.3d 1015,

1032 (11th Cir. 2002) (“An arrest, without a conviction, or the conduct leading to

it, cannot be proven by extrinsic evidence.”) (citing Rule 608(b)).

The second set of alleged errors concerns restrictions on the cross-

examination of Mr. Villamonte. Mr. McGhee contends that the district court erred

in not permitting him to question Mr. Villamonte as to (1) his early release from

federal prison while serving a 262-month sentence; (2) his work in prison as a

confidential informant; (3) his arrests and need for paid employment after moving

to South Florida; (4) his 2010 conviction for battery following a carjacking arrest;

and (5) his purported work as a confidential informant in Philadelphia. Assuming

there were any errors, they did not affect Mr. McGhee’s substantial rights because

the substance of the evidence that was supposedly restricted was nevertheless

presented to the jury. For example, the jury heard evidence (1)-(2) that Mr.

Villamonte had his 262-month sentence reduced because he cooperated against

several prison guards; (3) that Mr. Villamonte was paid for his work as an

informant in this case; (4) that Mr. Villamonte was convicted of battery in 2010;

and (5) that Mr. Villamonte had worked for the ATF in Philadelphia and had been

paid $4,000, that he had received a total of approximately $12,000 to $16,000 in

payments from the ATF, and that he was no longer working for the ATF because

he purchased pills and marijuana for his girlfriend.

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The third alleged error is the district court’s evidentiary ruling during the

testimony of defense witness Cassio Slowden. Mr. Slowden testified that he had

met Mr. Villamonte at a gas station and used marijuana with him, that he thought

Mr. Villamonte was a liar and a horrible person, that Mr. Villamonte had caused

his arrest (for which he spent 136 days in custody) in a fake home invasion robbery

by giving him a gun on the date of the arrest. The district court did not allow Mr.

McGhee, however, to have Mr. Slowden explain how Mr. Villamonte had

entrapped him, and it is this ruling that Mr. McGhee challenges. We do not find

any abuse of discretion, as Mr. Slowden was able to testify about Mr. Villamonte’s

conduct as an informant in relation to Mr. Slowden. The fact that Mr. Slowden

was not able to testify, in legal parlance, that Mr. Villamonte had entrapped him,

does not constitute reversible error.

The fourth alleged errors are rulings made by the district court during the

testimony of Agent Steve McKean, who had acted as the undercover agent during

the sting operation. Again, we find no abuse of discretion and/or no reversible

error. First, as to the district court’s refusal to allow Mr. McGhee to ask Agent

McKean three questions about Mr. Villamonte’s employment at Home Depot, we

do not know what the questions were or how Mr. Villamonte was expected to

answer them. As a result, Mr. McGhee has not shown that he suffered prejudice.

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Second, as to testimony that Mr. McGhee was identified as “Easy” on a co-

defendant’s cell phone, that evidence was not unfairly prejudicial under Rule 403.

III

Mr. McGhee also asserts that prosecutorial misconduct deprived him of a

fair trial. We are not persuaded.

First, although we may not understand why the government would choose to

continue employing an informant who engaged in ongoing criminal misconduct,

here the use of Mr. Villamonte as an informant did not constitute outrageous

governmental misconduct; it did not violate “that ‘fundamental fairness, shocking

to the universal sense of justice,’ mandated by the Due Process Clause of the Fifth

Amendment.” United States v. Russell, 411 U.S. 423, 432 (1973) (citation

omitted). We note also that Mr. Villamonte’s troubled past and dirty laundry (e.g.,

his convictions, his payments, his drug use, his double-dealing, his prior work as

an informant, his failure to pay taxes, his commitment to an institution for mental

health reasons) were aired before the jury.

Second, the government’s mid-trial disclosure of Mr. Villamonte’s ATF files

from Philadelphia and Tampa does not call for reversal. Mr. McGhee was allowed

to recall Agent McKean to the stand after the disclosure and ask him questions

concerning (1) Mr. Villamonte’s files from those two ATF offices, (2) Agent

McKean’s knowledge of what was contained in those files (e.g., some of Mr.

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Villamonte’s prior arrests), and (3) the plan to deactivate Mr. Villamonte as an

informant. In our view, Mr. McGhee has not shown prejudice from the late

disclosure.

IV

The district court instructed the jury on the § 846 conspiracy charge that,

among other things, the government had to prove beyond a reasonable doubt that

Mr. McGhee “knew the unlawful purpose of the plan and willfully joined in it.”

The court, however, did not define the word “willfully” in its instructions on the

conspiracy charge, and Mr. McGhee contends that this entitles him to a new trial

on that charge.

Because Mr. McGhee did not object at trial, his claim is reviewed for plain

error. See United States v. Prather, 205 F.3d 1265, 1270 (11th Cir. 2000). Under

that exacting standard, Mr. McGhee is not entitled to relief. Jury instructions are

viewed as a whole, and the district court instructed the jury that a conspiracy is “an

agreement or a kind of partnership in criminal purposes,” and that “the essence of a

conspiracy is the making of the scheme itself.” The district court also told the jury,

with respect to another of the conspiracy charges, that the word willfully meant

“with the intent to further its unlawful purpose.” These instructions, combined

with the evidence presented by the government (including Mr. McGhee’s post-

arrest confession), lead us to conclude that the incomplete instructions were not, in

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the language of Prather, “probably responsible for an incorrect verdict, leading to

a substantial injustice.” 205 F.3d at 1271 (quoting Montgomery v. Noga, 168 F.3d

1282, 1294 (11th Cir. 1999)). 2

V

Mr. McGhee’s convictions are affirmed.

AFFIRMED.

2 This is not a case where the jury instructions completely omitted an element of a charged offense. Even in that situation, however, the omission would be subject to harmless- error review. See Neder v. United States, 527 U.S. 1, 12-13 (1999).