IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-40761
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICARDO RIVERA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-96-CR-75-2
July 16, 1999
Before GARWOOD, HIGGINBOTHAM and WIENER, Circuit Judges.
PER CURIAM:*
Ricardo Rivera appeals his conditional guilty-plea conviction
for conspiracy to possess marijuana with intent to distribute.
Rivera argues that he did not voluntarily consent to the
warrantless search of his home and that he had not validly waived
his right to conflict-free counsel.
Rivera and co-defendants Simon Sandoval, Roby Sandoval, and
George Garcia were charged in a two-count indictment. Rivera and
*
Pursuant to 5TH CIR. R. 47.5 the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
the two Sandovals were represented by the same retained counsel,
attorney Zimmerman of Dallas. All defendants pleaded not guilty.
A motion to suppress evidence was filed by attorney Zimmerman on
behalf of Rivera and the Sandovals and by attorney Alvarez (of
McAllen) on behalf of Garcia. After evidentiary hearings, the
district court wholly denied the motion to suppress. Subsequently,
Garcia, who was out on bond, was killed. Thereafter, Rivera and
Simon Sandoval changed their pleas from not guilty to guilty to
count one pursuant to identical plea agreements calling for the
government to dismiss count two and recommend a three-level
reduction for acceptance of responsibility and a sentence at the
low end of the sentencing guidelines range. At the rearraignment,
the district court stated its understanding that Rivera’s plea (and
Simon’s) reserved the right to appeal only the denial of the motion
to suppress and requested defense counsel to put that in writing in
compliance with Fed. R. Crim. P. 11(a)(2) so all would know just
what was reserved for appeal. Defense counsel agreed to do so and
later in the rearraignment hearing a handwritten document signed by
Rivera and Simon was filed stating “we reserve the right to appeal
the Court’s ruling on our motion to Suppress the Evidence under
Rule 11(a)(2).” The government consented to and the district court
approved Rivera’s (and Simon’s) guilty plea with, in the court’s
words, “them reserving their right to appeal, if they so desire,
the Court’s ruling on the motion to suppress.” On the same day,
the district court, pursuant to the government’s motion, dismissed
without prejudice the indictment as to Roby Sandoval. Rivera was
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subsequently sentenced to sixty months’ imprisonment, followed by
four years’ supervised release, on count one, the minimum sentence
under the guidelines, and count two was dismissed. After
sentencing, Zimmerman ceased representing Rivera, who had no
further funds to pay him. Rivera filed below a motion stating “I
want to appeal the Motion to Suppress and Sentence, but I cannot
afford a lawyer” (on this appeal no complaint is made as to
Rivera’s sentence). The district court appointed the public
defender to represent Rivera on appeal.
I.
We have reviewed the record and the briefs of the parties and
hold that the district court did not clearly err in finding that
Rivera had voluntarily consented to the search of his home. United
States v. Rivas, 99 F.3d 170, 175-76 (5th Cir. 1996).
The government’s evidence reflected that Rivera gave both
verbal and written consent to search his home. A video tape taken
by an officer of Rivera’s giving of his consent was put in evidence
by the government and reflects nothing suggestive of coercion,
deception, or lack of understanding. The consent form signed by
Rivera clearly recites “I understand that I have the right to
refuse to consent to the search described above and to refuse to
sign this form” and that “no promises, threats, force, or physical
or mental coercion of any kind whatsoever have been used against me
to get me to consent to the search described above or to sign this
form.” Rivera in his testimony admits that the video reflects his
statement that he was signing the consent form voluntarily.
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Rivera’s testimony (given entirely in English without an
interpreter present) supports the conclusion that he had the
capacity to read and understand the consent form, and there is no
contrary evidence. The officers testified no physical or verbal
threats were made to induce Rivera’s consent. Their testimony also
reflected that no guns were drawn or pointed at Rivera when he gave
his consent, and that Rivera was read his Miranda rights twice
before giving his verbal and written consent. The government’s
evidence clearly sufficed to meet its burden of adequately
supporting a finding that Rivera’s consent was voluntarily given.
And, the district court was not required to, and expressly did not,
credit the suppression hearing testimony of Rivera, his wife and
children, and friend relied on to show that the consent was not
voluntary. See, e.g., United States v. Garza, 118 F.3d 278, 283
(5th Cir. 1997), cert. denied, 118 S.Ct. 699 (1998) (“We will not
second guess the district court’s factual findings as to the
credibility of witnesses”); United States v. Broussard, 80 F.3d
1025, 1036 (5th Cir. 1996) (“The district court was not required to
believe [the defendant’s] testimony or proffered evidence at the
suppression hearing.”).
II.
At Rivera’s initial appearance on April 16, the magistrate
judge conducted a hearing under Fed. R. Crim. P. 44(c) concerning
Zimmerman’s joint representation of Rivera and the Sandovals. The
magistrate judge initially ascertained from Zimmerman that he had
gone over with Rivera and the Sandovals “the potential conflict
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situation here” as well as the waiver of conflicts affidavit form
Rivera later signed. Rivera and the Sandovals were then fully
advised in open court by the magistrate judge of the many ways in
which such joint representation could involve an existing conflict
of interest on the part of the attorney or in which such a conflict
could later arise to the potential detriment of Rivera and/or the
Sandovals, and the magistrate judge likewise advised of the right
of Rivera (and the Sandovals) “to be represented by an attorney who
represents you and only you” and to select another attorney. No
complaint is made as to the adequacy and accuracy of this advice,
which Rivera and the Sandovals, under questioning by the magistrate
judge, expressly stated they understood. The magistrate judge then
asked Rivera whether “after having gone over this situation with
you, you still wish to have Mr. Zimmerman represent you,” to which
Rivera replied “Yes, sir.” The same questions were separately
asked each of the Sandovals, who each gave the same response. The
magistrate judge stated that “I would recommend that you strongly
consider the possibility of having separate counsel” and “it’s
almost always a better idea to have separate counsel.” Zimmerman
was asked by the magistrate judge if he saw any conflict, and the
following transpired:
“Mr. Zimmerman: I believe up to some point that’s
true, Your Honor. If there is a possibility that at some
point that a conflict will develop and if it does, we’ll
have another attorney to substitute in. But at this
point, I don’t see a problem with representation of more
than one person.
The Court: Okay. And, as an officer of the court,
we’ll just rely on you to bring that up promptly if that
situation should arise.
And, each of you should be aware as well that it may
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be a situation in which if a conflict does arise Mr.
Zimmerman may not be able to represent any of you at that
point because of the circumstance in which he has
obtained information confidentially from each of you or
presumably will if he has not already. And so you’ll be
sure to understand that also.
Mr. Martinez, as far as the Government is concerned,
what is the Government’s position as far as permitting
Mr. Zimmerman to proceed on behalf of these three
defendants?
Mr. Martinez: Your Honor, we have no opposition. I
think that being an officer of the court, Mr. Zimmerman,
hopefully, would notify the Court immediately if he
sensed or came close to a conflict in the case.
The Court: All right. I will also advise each of
the defendants that I would recommend to you that you
discuss with another attorney whether or not it’s
advisable for you to proceed having the same attorney.
Again, that’s up to you. But I think that would be a
good idea.
You may have the right to have an appointed attorney
to discuss that situation with, and if you are unable to
afford to hire a separate attorney or to pay for a
consultation of that nature.
We do need to – I’m going to give you a date by
April 26 that I’ll indicate that you should consult with
separate counsel if you’re going to do that. You should
do that right away. And the reason that I’m giving you
a date is that once we get further along, if you were to
change attorneys, that’s going to delay the case and the
ability to proceed forward with it. And so for that
reason, I’m directing each of you by – that’s a week from
Friday to – if you’re going to consult with another
attorney or to advise the Court that you have changed
your mind and you want to employ separate counsel that
you advise the Court by that date if you are going to
take advantage of that.”
The magistrate judge again ascertained that Rivera and the
Sandovals understood “what I’ve explained here today” and then
again confirmed that each defendant had gone over the waiver
affidavit with Zimmerman and these were signed and filed. The
magistrate judge then allowed the joint representation, stating
“It’s not apparent at this point that there is an actual conflict
and it does appear that each of these defendants does want to have
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Mr. Zimmerman represent them.”
On appeal no complaint is made of what was orally stated—or
omitted—at the April 16 hearing. And, we interpret the magistrate
judge’s remarks there to mean, and to be understood by those
present, that there was then no present actual conflict of interest
and that, although Rivera and the Sandovals had only until April 26
to seek to be relieved of dual representation per se, nevertheless
if an actual conflict were to later develop it would be brought to
the court’s attention and appropriate action taken. Rivera does
not argue to the contrary. Instead, the sole basis of his second
point on appeal is a complaint of the following language in the
paragraph of the waiver affidavit just preceding its final
sentence, viz: “I will not be permitted to select a different
attorney in the future if any possible conflicts explained to me
(or others not now foreseen) should occur” and “I may discuss this
problem with the Court of my desire to change attorneys no later
than April 26, 1996, the Court will consider that I do not wish to
change my decision and I give up my right to other counsel.”1
1
The paragraph as a whole reads as follows:
“Despite all these facts and information, I choose
to be represented by my attorney Barry Louis Zimmerman.
I understand that I will be given time to select another
attorney should I choose to do so, but I do not now
choose to obtain any other attorney. I understand that
I am waiving my right to select a different attorney, and
that I will not be permitted to select a different
attorney in the future if any possible conflicts
explained to me (or others not now foreseen) should
occur. The reason I must now make this decision is so
that the trial will not be delayed and so that a
severance can be avoided. I have also been informed and
I understand that I may discuss this problem with the
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While we do not condone this language, we conclude that no
ground for reversal is established.
This complaint is raised for the first time on appeal.2 The
plea of guilty does not reserve the right to appeal on this or any
related basis. That would ordinarily constitute a waiver of all
nonjurisdictional defects in the proceedings below. See Rule
11(a)(2); United States v. Bell, 966 F.2d 914 (5th Cir. 1992).
Such a waiver “includes all claims of ineffective assistance of
counsel [citations] except insofar as the alleged ineffectiveness
relates to the voluntariness of the giving of the guilty plea.”
Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983). A single
attorney’s representation in the same case of two or more
defendants charged with the same offense does not of itself alone
mean that there was in fact an actual conflict of interest or that
the dual representation had any adverse effect. See United States
v. Rico, 51 F.3d 495, 508-9 (5th Cir. 1995); United States v.
Benavidez, 664 F.2d 1255, 1259-62 (5th Cir. 1982). Any failure to
properly comply with Rule 44(c) is not reversible error unless it
is shown “that defendant has been denied the Sixth Amendment right
that the rule was designed to protect.” Benavidez at 1259. Here
Rivera does not allege, and nothing in the record suggests, that
Court of my desire to change attorneys no later than
April 26, 1996, the Court will consider that I do not
wish to change my decision and I give up my right to
other counsel.”
2
There is no suggestion in the record that at any time after
the April 16 hearing any one ever sought to complain about or bring
to the court’s attention anything suggestive of a conflict of
interest or the performance of counsel.
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there ever was an actual conflict of interest on Zimmerman’s part
or that his representation of the Sandovals as well as Rivera in
any way affected, adversely or otherwise, either any aspect of
Zimmerman’s performance as Rivera’s counsel or Rivera’s guilty
plea. And, there is nothing to suggest, and Rivera does not
assert, that his guilty plea was other than fully informed and
voluntary.
The judgment of the district court is AFFIRMED.
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