Relevance Requires a Nexus: Fifth Circuit Rejects “Pattern-of-Coercion” Evidence from Unrelated Investigation and Reaffirms Limits on Defense Witness Immunity

Introduction

In United States v. Villarreal, No. 23-20144 (5th Cir. Dec. 3, 2024) (per curiam) (unpublished), the Fifth Circuit affirmed a suite of trial rulings arising from a multi-count prosecution in the Southern District of Texas. The central appellate issues were whether the district court erred by:

Excluding a recording of a 2018 proffer interview of a government cooperator (Victor Romero) conducted in an unrelated investigation;
Declining to compel Romero’s testimony after he invoked the Fifth Amendment;
Denying the defense’s request for court-ordered immunity for Romero; and
Refusing to dismiss the indictment on due process grounds.

The case background is noteworthy: the government charged Lee Roy Villarreal with drug and kidnapping offenses tied to Gulf Cartel activity. A § 924(c) count was dismissed at the government’s request. At trial, the jury convicted on the drug conspiracy but acquitted on kidnapping-related counts. Post-verdict, the defense pressed relevance, fair-trial, and immunity arguments centered on Romero’s interviews—particularly a recorded 2018 proffer in a separate Victoria, Texas investigation (the Beltran trafficking organization) conducted by different agents.

The Fifth Circuit’s opinion clarifies several recurring trial-law questions: how narrowly relevance is policed when a defendant attempts to prove pervasive government coercion with extrinsic evidence from an unrelated case; the scope of a district court’s discretion to sustain a Fifth Amendment invocation without a question-by-question inquiry when the risk of self-incrimination is obvious from the record; and the stringent limits—bordering on a categorical bar—on judicially ordered immunity for defense witnesses, absent extraordinary circumstances amounting to government abuse.

Summary of the Opinion

The Fifth Circuit affirmed:

Exclusion of the 2018 interview recording under Rules 401–402 as irrelevant to the issue of whether agents in Villarreal’s case coerced testifying witnesses. The recording arose from a different investigation, by different agents, concerning different subject matter, and the government did not call Romero at trial.
Romero’s Fifth Amendment invocation was properly sustained without requiring a granular, question-by-question inquiry because the record showed real risks of self-incrimination whether Romero recanted (exposing false statement liability) or reiterated his prior inculpatory statements (implicating his own involvement).
Denial of defense-requested immunity aligned with long-settled Fifth Circuit law: district courts lack authority to grant defense witness immunity or order the government to do so, save for a narrow, undefined “extraordinary circumstances” exception to stem government abuse—which was not shown.
Denial of dismissal of the indictment was proper; excluding irrelevant evidence and sustaining a valid Fifth Amendment claim did not deprive Villarreal of a fair trial, especially where the defense could have examined over thirty actual witnesses about alleged coercion but did not.

Analysis

1) Precedents Cited and Their Influence

The Fifth Circuit’s reasoning rested on familiar pillars:

Evidence rulings – abuse of discretion: United States v. Okulaja, 21 F.4th 338, 344 (5th Cir. 2021); United States v. Ibarra, 493 F.3d 526, 532 (5th Cir. 2007); United States v. Alaniz, 726 F.3d 586, 606 (5th Cir. 2013); United States v. Ragsdale, 426 F.3d 765, 774 (5th Cir. 2005). The court repeated that abuse occurs when a ruling rests on an erroneous view of law or a clearly erroneous assessment of the evidence.
Relevance defined: FED. R. EVID. 401–402; UNITED STATES v. HALL, 653 F.2d 1002, 1005 (5th Cir. 1981) (evidence must be probative of a proposition of consequence).
Contrasted authority on “pattern-coercion” proof: United States v. Shyllon, 10 F.3d 1 (D.C. Cir. 1993), where the same investigator allegedly intimidated multiple witnesses in the same case. The Fifth Circuit distinguished Shyllon because Romero’s interview involved different government actors in a separate investigation—no causal nexus.
Fifth Amendment invocations: United States v. Hankton, 51 F.4th 578, 604 (5th Cir. 2022); United States v. Brooks, 681 F.3d 678, 711 (5th Cir. 2012); UNITED STATES v. MELCHOR MORENO, 536 F.2d 1042, 1049 (5th Cir. 1976); United States v. Wright, 845 F. App’x 334, 337–38 (5th Cir. 2021). These authorities confirm both the district court’s wide discretion and the permissibility of sustaining an invocation without a question-by-question colloquy if the record already shows a real and appreciable risk of self-incrimination.
Judicially ordered immunity: UNITED STATES v. CHAGRA, 669 F.2d 241, 258–61 (5th Cir. 1982) (overruled on other grounds by United States v. Garrett, 471 U.S. 773 (1985)); UNITED STATES v. THEVIS, 665 F.2d 616, 638–40 (5th Cir. 1982) (superseded on other grounds by FED. R. EVID. 804(b)(6)); PILLSBURY CO. v. CONBOY, 459 U.S. 248, 261 (1983); United States v. Follin, 979 F.2d 369, 374 (5th Cir. 1992); Brooks, 681 F.3d at 711; United States v. Bustamante, 45 F.3d 933, 943 (5th Cir. 1995). The Fifth Circuit reiterated its entrenched position: trial courts lack authority to grant use immunity to defense witnesses or to compel the government to do so, save possibly in extraordinary circumstances to prevent government abuse—a threshold not met here.
Misplaced reliance on Murphy: Murphy v. Waterfront Commission, 378 U.S. 52 (1964), abrogated on other grounds by UNITED STATES v. BALSYS, 524 U.S. 666 (1998), concerned compelled testimony post state-granted immunity and cross-sovereign use restrictions; it did not support compelling Romero to testify absent immunity.

2) The Court’s Legal Reasoning

a) Relevance of the 2018 Romero Recording

The defense sought to play a ten-minute slice of an August 2018 recorded proffer (Victoria investigation) to argue that agents pressured Romero to implicate Villarreal and, by inference, that agents in Villarreal’s case must have pressured other witnesses too. The Fifth Circuit upheld exclusion under Rules 401–402:

No nexus: The proffer was conducted by different agents and a different prosecutor in a separate investigation; Romero was not a government witness at trial. This missing link made any inference about wholesale coercion of the actual trial witnesses too speculative.
Alternative avenues unpursued: The defense could have asked more than thirty testifying witnesses—and the interviewing case agents—whether they were pressured. The court emphasized that the defense either did not ask or elicited no helpful testimony, undermining the necessity and probative value of extrinsic proof from elsewhere.
Subject-matter mismatch and acquittals: The recording pertained to kidnapping involvement, but the jury acquitted Villarreal on kidnapping counts. Using kidnapping-focused extrinsic evidence to suggest coercion affecting drug-conspiracy testimony was doubly attenuated.
Shyllon distinguished: Unlike in Shyllon, where the same investigator allegedly intimidated both the defendant’s witness and the government’s witnesses in the same case, no common actor tied Romero’s proffer to the interviews of trial witnesses here.

Because the court affirmed exclusion on relevance alone, it expressly declined to reach hearsay, redaction, and limiting-instruction arguments.

b) Sustaining Romero’s Fifth Amendment Invocation

The district court accepted Romero’s counsel’s representation that Romero would invoke the Fifth Amendment if called. The court also recognized two likely outcomes, both risky:

Recantation of the 2019 inculpatory interview risks self-incrimination for lying to federal agents (e.g., potential liability under 18 U.S.C. § 1001) or perjury if inconsistent with sworn prior statements.
Consistency with prior inculpatory statements risks self-incrimination by acknowledging knowledge of, or participation in, the kidnapping.

Given this record, the Fifth Circuit held that the district court did not permit a “blanket” assertion; it reasonably sustained the privilege without granular questioning because the risk of self-incrimination was apparent and not hypothetical. This aligns with Wright and Brooks, which allow trial courts to sustain invocations when the record already shows the privilege’s scope and the likelihood of incrimination.

c) Denial of Judicially Ordered Immunity

The Fifth Circuit reaffirmed its consistent rule: district courts have no statutory, common-law, or inherent authority to grant use immunity to a defense witness or to compel the executive to immunize a witness. While the court has “suggested without deciding” a narrow, constitutional safety valve in extraordinary circumstances to curb government abuse, the exception remains exceedingly limited.

The defense’s theory—that the government’s refusal to immunize Romero was a tactic to suppress testimony about coercion—failed on the facts and law:

No government abuse shown: The proffer was unrelated to Villarreal’s case; the government did not call Romero; and the defense had ample opportunity to probe actual trial witnesses for coercion but did not.
Immunity could have inculpated the defendant: The district court reasonably worried that immunizing Romero could lead to testimony that further implicated Villarreal. Immunity is not a device for creating exculpation leverage for the defense; the Fifth Circuit has repeatedly rejected “essential exculpatory evidence” as a sufficient basis for compelled immunity. See Brooks, 681 F.3d at 711.

d) Denial of Motion to Dismiss the Indictment

The due-process challenge—predicated on the exclusion of the recording, the Fifth Amendment ruling, and the refusal to immunize Romero—also failed. Each underlying ruling was proper, and there was no showing of prejudice or government misconduct warranting the extreme remedy of dismissal. The defense’s failure to cross-examine trial witnesses about alleged coercion undercut any claim that the excluded extrinsic evidence was necessary to ensure a fair trial.

3) Impact and Practical Implications

Relevance demands a concrete nexus: Attempts to prove a “pattern” of investigative coercion with extrinsic evidence from unrelated cases will face exclusion unless the defense can tie the evidence to the actors or methods used on the actual trial witnesses. Without shared agents, prosecutors, or investigation overlap, the inference is too speculative.
Fifth Amendment invocations can be sustained without question-by-question inquiry when the record already demonstrates real, non-trivial exposure to criminal liability. Defense counsel should be prepared to articulate why the risk is merely “imaginary” if seeking further inquiry.
Defense witness immunity remains practically unavailable in the Fifth Circuit absent demonstrable government abuse that distorts the fact-finding process. The Fifth Circuit continues not to adopt broader doctrines some other circuits have entertained.
Trial strategy matters: If coercion is the theory, the primary route is to examine the actual government witnesses and interviewing agents and build a case-specific record. Reliance on extrinsic, unrelated episodes is unlikely to survive Rules 401–402 gatekeeping.
Unpublished but instructive: Although nonprecedential under 5th Cir. R. 47.5, this opinion is a clear signal that courts will police “pattern” theories closely and will not require mini-trials about conduct in wholly separate investigations absent a tangible connection.

Complex Concepts Simplified

Relevance (FED. R. EVID. 401–402): Evidence is relevant only if it makes a consequential fact in the case more or less probable. Relevance is not a license to introduce loosely related background; there must be a concrete logical link to an issue the jury must decide.
Extrinsic evidence of coercion: To suggest systemic coercion, the defense must show that the same investigators/prosecutors or the same investigation practices used on trial witnesses were involved—otherwise it is speculation.
Fifth Amendment privilege: A witness may refuse to answer questions when truthful answers could reasonably expose the witness to criminal liability. Courts may sustain an invocation without granular, question-by-question rulings if the record already shows that risk is real.
“Blanket” invocations: Disfavored when used reflexively. But where the likely testimony plainly risks incrimination on multiple fronts, courts can accept an invocation without detailed parsing.
Use immunity vs. transactional immunity: Use immunity forbids the government from using the compelled testimony or its fruits against the witness (Kastigar-type protection), while transactional immunity bars prosecution for the underlying offense. In federal practice, immunity decisions are vested in the executive, not the judiciary. The Fifth Circuit does not allow trial courts to grant defense witness immunity except, perhaps, in rare, undefined “extraordinary” due-process scenarios involving government abuse.
Due process and dismissal: Dismissal of an indictment for investigatory or trial misconduct is an extreme remedy, generally requiring both misconduct and actual prejudice to the defendant’s fair-trial rights. Mere disagreement with evidentiary rulings does not suffice.

What the Court Did Not Decide

Whether the agents’ statements in Romero’s 2018 proffer were “coercive” in a constitutional or evidentiary sense; the court assumed arguendo and ruled on relevance alone.
Hearsay, redaction, and limiting-instruction issues concerning the recording, because irrelevance resolved admissibility.
The precise contours of the “extraordinary circumstances” immunity exception; the court reiterated it remains suggested but not defined, and it did not apply here.
The standard of review for denial of the motion to dismiss, noting that the outcome was the same under either abuse-of-discretion or de novo review.

Practical Guidance

For defense counsel:
- Build a case-specific record: cross-examine the actual witnesses and agents about pressure, promises, or threats; seek discovery bearing on interview tactics in the same case.
- If invoking “pattern” evidence, be prepared to show common personnel, shared investigative control, or other concrete links to the witnesses who testified.
- Anticipate Fifth Amendment invocations and consider proffers; if arguing for further inquiry, demonstrate why the risk of self-incrimination is speculative or can be managed via limits.
- Do not rely on judicial immunity; absent government abuse, it is almost never available in the Fifth Circuit.
For prosecutors:
- Maintain clear separation of investigations and document interview practices; this helps defeat relevance of extrinsic “coercion” claims.
- Be cautious with language during proffers; while discussing cooperation benefits is standard, phrasing that appears to demand “more incriminating” details can be criticized—even if not reversible error here.
- If a defense witness signals a Fifth Amendment invocation, be prepared to articulate the basis for the risk of self-incrimination to support sustaining the privilege.
For district courts:
- Assess “pattern-of-coercion” theories for a concrete nexus to trial witnesses and the issues in the case; weigh availability of direct cross-examination as a less speculative path.
- Where the record shows obvious exposure, it is within discretion to sustain a Fifth Amendment invocation without question-by-question proceedings.
- Judicially ordered immunity should be denied absent a documented showing of government abuse distorting the truth-finding function.

Conclusion

United States v. Villarreal reinforces three enduring principles in Fifth Circuit criminal practice:

Relevance requires nexus: Extrinsic evidence from an unrelated investigation—especially involving different agents and subject matter—cannot be used to imply systemic coercion of witnesses in the defendant’s case absent a concrete connection.
Fifth Amendment discretion: Trial courts may sustain a witness’s privilege without granular inquiry when the record shows a real risk of self-incrimination regardless of the witness’s potential answers.
Immunity is executive, not judicial: Defense witness immunity remains beyond the district court’s power, save perhaps for a narrow, undefined due-process exception in the face of proven government abuse—which was not present here.

Although unpublished and nonprecedential under Fifth Circuit Rule 47.5, the opinion offers clear, practical guidance on evidentiary gatekeeping for “pattern” claims, the management of Fifth Amendment invocations, and the continued unavailability of defense witness immunity. Defense teams contemplating broad coercion theories should heed the court’s insistence on case-specific proof over speculative inferences drawn from unrelated investigations.

Note: This commentary is for informational purposes only and does not constitute legal advice.