United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
December 6, 2006
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 05-41140
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIGUEL ANGEL GARCIA-JASSO,
Defendant-Appellant.
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Appeal from the
United States District Court
for the Southern District of Texas
(1:04-CR-440(1))
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Before WIENER and CLEMENT, Circuit Judges, and MARTINEZ, District
Judge.*
PHILIP R. MARTINEZ, District Judge:
Defendant-Appellant Miguel Angel Garcia-Jasso challenges his
conviction, entered pursuant to a guilty plea to both counts of a
two-count indictment charging him with violations of the Controlled
Substances Act. Garcia-Jasso asks that the conviction be vacated,
claiming that his attorney below labored under two conflicts of
interest, the first stemming from his attorney’s representation of
Garcia-Jasso’s wife, and the second arising from his attorney’s
alleged complicity in Garcia-Jasso’s flight from the jurisdiction.
*
District Judge for the Western District of Texas, sitting by
designation.
Garcia-Jasso claims that the district court became aware of these
conflicts during the sentencing proceedings and failed to conduct
a Garcia hearing to ensure that Garcia-Jasso knowingly waived his
right to conflict-free counsel. We conclude that the district
court did not err in failing to conduct a Garcia hearing, as the
record is devoid of evidence of an actual conflict of interest.
Thus, we affirm Garcia-Jasso’s conviction.
I. FACTS & PROCEEDINGS
On August 25, 2004, Garcia-Jasso pleaded guilty to both counts
of a two-count indictment charging him with conspiracy to possess
with intent to distribute approximately 625 kilograms of marijuana
as well as possession with intent to distribute the same. The
crimes charged in the indictment occurred between February 24,
2003, and March 1, 2003, and on March 1, 2003, three of Garcia-
Jasso’s co-conspirators were arrested. According to the
government’s statement of the facts during the plea colloquy, an
arrest warrant was not immediately issued as to Garcia-Jasso, given
that “a representative of the defendant, Garcia-Jasso, contacted
the case agent to ostensibly cooperate on the case, asking that any
arrest warrant be delayed.”
In June 2003, Garcia-Jasso left Texas for Michigan. On July
11, 2003, the United States District Court for the Southern
District of Texas, Brownsville Division, issued an arrest warrant
for Garcia-Jasso. Almost a year later, on June 4, 2004, Garcia-
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Jasso was taken into custody in the Western District of Michigan
pursuant to the warrant issued on July 11, 2003. He was
transferred to Texas on June 14, 2004.
Represented by counsel Robert “Eddy” De la Garza, Garcia-Jasso
pleaded guilty on August 25, 2004. On February 28, 2005, the
district court sentenced Garcia-Jasso to two concurrent 135-month
terms of imprisonment, to be followed by concurrent five-year terms
of supervised release. During the sentencing hearing, De la Garza
objected to, among other things, a proposed two-level obstruction
of justice enhancement under U.S.S.G. § 3C1.1. The Presentence
Investigation Report (“PSR”) included a recommendation for an
obstruction of justice enhancement because Garcia-Jasso failed to
meet with DEA agents, because he knew that an arrest warrant had
been issued against him, and because he knew that he was wanted for
questioning.
In reviewing the objection to the obstruction of justice
enhancement, the district court noted the possible need for De la
Garza to testify regarding whether a DEA agent told him about the
existence of an arrest warrant, and if so, whether De la Garza in
turn informed Garcia-Jasso about the issuance of the arrest
warrant. After some discussion, De la Garza stated that he would
prefer to proceed as Garcia-Jasso’s attorney and did not testify.
At the sentencing hearing, the DEA agent testified that he informed
De la Garza about the existence of an arrest warrant for Garcia-
Jasso in August 2003 (approximately two months after Garcia-Jasso
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had left Texas for Michigan). The district court overruled Garcia-
Jasso’s objection to the obstruction of justice enhancement.
During the sentencing hearing, the DEA agent also testified
that De la Garza had informed him on March 3, 2003, that he was
representing both Garcia-Jasso and Linda Vasquez, Garcia-Jasso’s
common-law wife. Garcia-Jasso mistakenly alleges that the DEA
agent testified that De la Garza claimed to represent both Garcia-
Jasso and Vasquez after the warrant had been issued. The record
only includes testimony that De la Garza made this representation
on March 3, 2003, approximately four months before an arrest
warrant was issued for Garcia-Jasso.
II. STANDARD OF REVIEW
We review de novo the determination of whether a conflict of
interest existed. United States v. Infante, 404 F.3d 376, 391
(5th Cir. 2005).
III. DISCUSSION
A. Conflict of Interest and the Need for a Garcia Hearing
The Sixth Amendment right to counsel includes the “right to
representation that is free from any conflict of interest.” United
States v. Vaquero, 997 F.2d 78, 89 (5th Cir. 1993). “A conflict
exists when defense counsel places himself in a position conducive
to divided loyalties.” United States v. Carpenter, 769 F.2d 258,
263 (5th Cir. 1985). If a defendant chooses to proceed with
representation by counsel who has a conflict of interest, a
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district court must conduct what is commonly known as a “Garcia
hearing” to ensure a valid waiver by the defendant of his Sixth
Amendment right. United States v. Garcia, 517 F.2d 272, 278 (5th
Cir. 1975), abrogated on other grounds by Flanagan v. United
States, 465 U.S. 259, 263 & n.2 (1984). During the hearing, the
district court must “ensure that the defendant (1) is aware that a
conflict of interest exists; (2) realizes the potential hazards to
his defense by continuing with such counsel under the onus of a
conflict; and (3) is aware of his right to obtain other counsel.”
United States v. Greig, 967 F.2d 1018, 1022 (5th Cir. 1992). A
district court need only conduct a Garcia hearing if there is an
actual conflict of interest. Carpenter, 769 F.2d at 263.
Garcia-Jasso argues that the district court should have
conducted a Garcia hearing once it became aware of certain facts
demonstrating De la Garza’s conflicts of interest. Garcia-Jasso
claims that De la Garza acted under two conflicts of interest: (1)
De la Garza had at one point represented both Garcia-Jasso and
Garcia-Jasso’s wife, Vasquez, and (2) De la Garza was potentially
criminally liable for his role in Garcia-Jasso’s obstruction of
justice.
1. Representation of Garcia-Jasso and Garcia-Jasso’s
Wife
We have previously recognized that “[j]oint representation
does not necessarily create a conflict of interest.” United States
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v. Rico, 51 F.3d 495, 508 (5th Cir. 1995). A conflict will exist
only “when defense counsel is compelled to compromise his or her
duty of loyalty or zealous advocacy to the accused by choosing
between or blending the divergent or competing interests of a
former or current client.” Perillo v. Johnson, 205 F.3d 775, 781
(5th Cir. 2000). A defendant must show more than a speculative or
potential conflict. Infante, 404 F.3d at 391. “It must be
demonstrated that the attorney made a choice between possible
alternative courses of action . . . . If he did not make such a
choice, the conflict remained hypothetical.” Stevenson v. Newsome,
774 F.2d 1558, 1561-62 (11th Cir. 1985)(internal quotation
omitted), quoted in Beets v. Scott, 65 F.3d 1258, 1277 (5th Cir.
1995) (en banc).
Garcia-Jasso contends that the district court should have
recognized the existence of a conflict when the DEA agent testified
during the sentencing hearing that De la Garza had previously
stated that he was representing both Garcia-Jasso “and also the
wife,” Vasquez. Garcia-Jasso claims that De la Garza’s statement
evidenced a conflict because “one of this lawyer’s defendants (the
appellant) appears to have been traded to the DEA for another (the
ex-wife),” a reference to the fact that Vasquez was never indicted.
However, there is insufficient evidence to support Garcia-
Jasso’s claim that this multiple representation developed into an
actual conflict which forced De la Garza to decide between the
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interests of Garcia-Jasso and Vasquez. As previously noted, the
record reflects only that De la Garza was engaged in this multiple
representation of Garcia-Jasso and Vasquez on March 3, 2003, four
months before the government filed a complaint against Garcia-
Jasso. At that time, Garcia-Jasso and Vasquez were still married.
It is likely that any multiple representation was undertaken in
order to advance their common interest as co-habitants of a home
then under investigation.
Furthermore, nothing in the record suggests that De la Garza
ever represented Vasquez in connection with any criminal
proceeding. There is no evidence in the record that demonstrates
that De la Garza’s responsibility to Vasquez was substantial or
that De la Garza ever had to make a choice between Vasquez’s
interests and Garcia-Jasso’s interests. Garcia-Jasso requests that
we draw an “off-the-record inference” of a conflict, but cannot
point to any evidence in the record demonstrating that De la
Garza’s representation of Vasquez compromised his obligations to
Garcia-Jasso. Therefore, we conclude that there is insufficient
evidence of an actual conflict of interest stemming from De la
Garza’s representation of Garcia-Jasso and Vasquez, and that the
district court did not err in failing to conduct a Garcia hearing
after the DEA agent’s testimony regarding the multiple
representation.
2. De la Garza’s Self-Interest in Avoiding Criminal
Responsibility
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Garcia-Jasso additionally claims that De la Garza was subject
to a conflict of interest because De la Garza was potentially
criminally liable for his involvement in Garcia-Jasso’s obstruction
of justice. To prevail, Garcia-Jasso must show that De la Garza
“was required to make a choice advancing his own interests to the
detriment of his client’s interests.” Beets v. Collins, 986 F.2d
1478, 1486 (5th Cir. 1993).
Garcia-Jasso argues that De la Garza improperly convinced him
to plead guilty and failed to present any exculpatory evidence at
the sentencing hearing, in order to avoid incriminating himself.
There is no evidence in the record, however, to support Garcia-
Jasso’s claim that a conflict of interest existed which prompted De
la Garza to protect himself at Garcia-Jasso’s expense. The PSR
states that Garcia-Jasso left the jurisdiction in June 2003, the
district court issued the warrant for his arrest in July 2003, and
his attorney learned of the warrant in August 2003. Garcia-Jasso
had already left Texas when De la Garza learned about the warrant.
Therefore, there is no reason to infer that Garcia-Jasso fled the
jurisdiction at De la Garza’s instructions and no reason to
conclude that an actual conflict existed.
While the district judge mentioned the possibility that De la
Garza might need to testify on behalf of his client at the
sentencing hearings, there is no evidence that this possibility
created a conflict of interest. A lawyer’s need to testify for his
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client “does not constitute a per se conflict of interest, but
instead must be evaluated under the totality of the circumstances
to determine whether an actual conflict exists between the
interests of the lawyer and client.” United States v. Martinez,
151 F.3d 384, 393 (5th Cir. 1998) (internal quotation omitted).
The record does not demonstrate that De la Garza played a
role in Garcia-Jasso’s departure or absence from the jurisdiction,
so there is no evidence that De la Garza would have had reason to
fear that his own testimony might subject him to criminal
liability. Thus, there is no evidence that De la Garza acted under
a conflict of interest between his own interests and those of his
client, Garcia-Jasso.
3. Conclusion
Garcia-Jasso’s claims that De la Garza labored under two
conflicts of interest rely on speculation and inferences that are
unsupported by the record. Because there is insufficient evidence
demonstrating that an actual conflict of interest existed, either
based on multiple representation or De la Garza’s self-interest, we
conclude that the district court did not err in failing to conduct
a Garcia hearing.
B. Ineffective Assistance of Counsel
Garcia-Jasso’s arguments could alternatively be construed as
raising an ineffective assistance of counsel claim, independent of
any conflict of interest, as Garcia-Jasso presents numerous
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instances in which he claims De la Garza performed deficiently.
“The general rule in this circuit is that a claim of ineffective
assistance of counsel cannot be resolved on direct appeal when the
claim has not been raised before the district court since no
opportunity existed to develop the record on the merits of the
allegations.” United States v. Higdon, 832 F.2d 312, 313-14 (5th
Cir. 1987). Direct review is limited to those situations “when the
record has provided substantial details about the attorney’s
conduct.” United States v. Bounds, 943 F.2d 541, 544 (5th Cir.
1991). This rule ensures that the merits of a claim may be fairly
evaluated. Id.
The record regarding Garcia-Jasso’s claims is not well-
developed. Garcia-Jasso argues that De la Garza performed
deficiently in failing to: (1) file pre-trial motions in a timely
manner, (2) attend a pre-trial motion hearing, (3) file any written
objections to the PSR, (4) call any witnesses or present any
evidence to rebut the prosecutor’s evidence, (5) offer evidence as
to the ownership of the hunting rifle, and (6) present public
records at the sentencing hearing as to control of the home and
vehicle involved in the offense. However, the reasons for De la
Garza’s decisions and any plausible alternative strategies
available to him are unclear. See Higdon, 832 F.2d at 314
(refusing to review an ineffective assistance claim on direct
appeal because the court could “only speculate on the basis for
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defense counsel’s actions”). Therefore, we decline to reach the
merits of an ineffective assistance claim, without prejudice to
Garcia-Jasso’s right to raise such claims through a motion brought
pursuant to 28 U.S.C. § 2255.
III. CONCLUSION
For these reasons, we AFFIRM Garcia-Jasso’s conviction.
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