IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 93-2237
UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
DEBRA ROBINSON RICO, and
MANUAL ARMANDO RICO,
Defendants-Appellants.
Appeals from the United States District Court
for the Southern District of Texas
(April 21, 1995)
Before VAN GRAAFEILAND*, JOLLY and WIENER, Circuit Judges.
WIENER, Circuit Judge:
In this direct criminal appeal, we review whether evidence
challenged as having been obtained in violation of the Fourteenth
and Fourth Amendments was properly admitted against Defendant-
Appellant Manuel Rico in a joint trial with his wife, Defendant-
Appellant Debra Rico, for various narcotics' offenses. We also
consider whether Debra's Sixth Amendment guarantee of effective
assistance of counsel was violated when she and Manuel were
*
Circuit Judge of the Second Circuit, sitting by
designation.
represented by the same attorney at trial. Finding that the
evidence was properly admitted and that no constitutional violation
resulted from the joint representation, we affirm the convictions
of both defendants.
I
FACTS AND PROCEEDINGS
In 1992, Federal Bureau of Investigation (FBI) agents in
Houston began investigating Debra and Manuel after those agents
received information from their colleagues in Philadelphia that a
Columbian-based drug group in Houston was the primary source of
cocaine for a Philadelphia cocaine trafficking organization. The
FBI arranged for a cooperating witness (CW) who was a member of the
Philadelphia organization to drive to Houston in a Cadillac (first
Cadillac) equipped with false compartments, and there to pick up
cocaine from the Houston source and drive it back to Philadelphia.
Pursuant to the plan, the CW drove to Houston, made contact
with the Houston source, and arranged a meeting in the CW's hotel
room. Later, several unidentified persons met with the CW in his
hotel room, obtained the keys to the first Cadillac, drove it to a
residence located on Ivy Oaks Lane (the Ivy Oaks residence), parked
in the garage of that house, and closed the garage door. About an
hour later, the same car emerged from the garage and was driven
back to the CW's hotel where the keys were returned to the CW.
Accompanied by some of the FBI agents, the CW then drove the first
Cadillac to a garage where the false compartments were opened,
revealing the presence of 25 kilograms of cocaine.
2
While that was transpiring, others of the FBI agents trailed
the unidentified persons who had delivered the first Cadillac to
the CW at his hotel. Those persons led the FBI agents to another
hotel at which, according to the CW, another courier was staying.
That courier had driven a second Cadillac (second Cadillac) from
Philadelphia to pick up narcotics from the Houston supplier. While
the agents observed, one of those persons entered the hotel, came
out a short while later, got into the second Cadillac, drove it to
the same Ivy Oaks residence to which the first Cadillac had been
driven, parked the second Cadillac in the garage, and closed the
garage door. Agents maintained uninterrupted surveillance on that
house while the second Cadillac remained parked inside the garage.
Early the next morning, agents conducting that surveillance
saw a van drive up to the Ivy Oaks residence and watched as a man
and woman fitting the descriptions of Manuel and Debra got out of
that vehicle and went inside the house. About an hour later, the
same female and a male left the residence and got back into the van
at the same time that the garage door was being opened. The van
and the second Cadillac were driven away together. Surveillance
agents recognized Debra as the driver of the van, but could only
determine that her passenger was a male.
The van and the second Cadillac were driven only four to eight
blocks before they were parked in front of a house on Clear Cove
Lane (the Clear Cove residence), located in the same subdivision as
3
the Ivy Oaks residence.1 Approximately two hours later, FBI agents
watched as two hispanic males stood next to the van and talked.
The van and the second Cadillac were then driven away in tandem to
the hotel where the second Cadillac had been picked up on the
previous day. After parking that car, the driver went into the
hotel while the woman driver of the van and a male passenger waited
in it. A short while later, the driver of the car came out of the
hotel and joined the other man and the woman in the van, whereupon
the three left together in it. FBI agents later discovered that
the van had been rented and that Manuel was listed as one of its
drivers.
Later that same day, a dark-complected hispanic male was
observed departing from the second hotel and driving away in the
second Cadillac. Pursuant to the FBI's request, state police
stopped the second Cadillac shortly after it left the hotel and
discovered that the driver of that car possessed a Pennsylvania
driver's license, which listed a Philadelphia address. The
officers obtained the driver's written consent to search the car,
during which drug-sniffing dogs positively alerted to the trunk and
passenger compartment of the vehicle. That car, the second
Cadillac, was then taken to the Sheriff's Office for a closer
inspection, which revealed the presence of 36 kilograms of cocaine
hidden in compartments under the floorboard.
1
The record is unclear as to the precise distance in blocks
between the Ivy Oaks and Clear Cove residences. The testimony at
trial established only that the distance was between four and
eight blocks.
4
The following afternoon, FBI agents executed a warrant to
search the Ivy Oaks residence. When they entered the house they
found it to be unoccupied and sparsely furnished. During the
ensuing search, agents discovered a "trap door" leading from the
garage to an attic in which ten kilograms of cocaine were stashed.
In a station wagon parked in the garage, agents found an automobile
title and registration slip in Debra's name, both of which listed
the Clear Cove address as her residence. Agents also recovered two
boxes containing 42 kilograms of cocaine and numerous papers and
documents belonging to Debra and Manuel (many of which were
addressed to the Clear Cove residence) in a secret room of the Ivy
Oaks residence; the door to that room was hidden behind a large
mirror in the master bedroom. The search also turned up $3000 in
cash located in a kitchen cabinet.
Based on the information that the agents had gathered from
their surveillance of the two Cadillacs and the van and from the
evidence obtained during the search of the Ivy Oaks residence, they
deduced that the Ivy Oaks residence was used as a "stash house" for
the Houston organization. They also suspected, based on such
information, that Manuel and Debra were involved in the
organization and resided at the Clear Cove residence.
The agents grew concerned that, as the two houses were located
in such close proximity, someone connected with the drug operation
might travel from the Clear Cove residence to the Ivy Oaks
residence and discover the presence of the agents, or might have
already noticed them searching the Ivy Oaks stash house. As a
5
precaution against such possibilities, Agent Daniel Bingham was
dispatched to watch the Clear Cove residence and to report any
unusual activity. Soon after Agent Bingham arrived at that house,
he observed some activity inside. Then, as he watched, a man
(later identified as Julio Cuero) emerged from the house,
approached the driver's side of a blue van which was parked in
front of the residence, and reached inside the vehicle.2 Agent
Bingham testified that he was immediately concerned that the
suspect might be moving drugs, money, or possibly even guns, from
the house to the van. Agent Bingham then saw Cuero walk to the
rear of the van, get into that vehicle, and, according to the
agent, "put[] something in or out."
When Agent Bingham observed that activity, he radioed for
assistance. He testified that he thought that the van, like the
two Cadillacs, must contain cocaine and that Cuero and the persons
inside the Clear Cove residence must be preparing to leave. He
explained that, "[i]f that was (sic) the case, we wanted to
effectuate an arrest or a car stop." Three agents responded
immediately to Agent Bingham's call for backup.
The additional agents arrived within minutes, whereupon all
four approached the house with guns drawn. While one stopped and
apprehended Cuero from the van the other three agents split up:
one proceeded to the rear of the house and the other two continued
toward the front door. When the two agents arrived at that door
2
The blue van was registered to Cuero and was not the same
van that the FBI had earlier observed driving in tandem with the
Cadillac and which was rented by Manuel and another man.
6
they knocked on it, but the door was apparently unlatched and ajar,
for it swung open on its own. When it did, one of the agents saw
a large hispanic male staring at him. Having been advised that the
members of the Houston organization might be armed and violent, the
two agents immediately entered the house with guns still drawn,
ordered the occupants to lie down on the floor, then conducted a
protective sweep to secure the premises. Some of the suspects,
including Debra, were then taken outside.
The agents learned from the suspects that Debra and Manuel
owned the Clear Cove home, so they asked Manuel for permission to
search the premises. He agreed and signed a consent-to-search
form. Although the agents uncovered no drugs or drug paraphernalia
during that search, they did find various documents and items that
tied the Clear Cove residence to the stash house on Ivy Oaks.
The agents also invited Debra and Manuel to discuss the
cocaine and documents found in the Ivy Oaks house. Debra refused
and asked for a lawyer, but Manuel agreed to talk to the agents.
After they advised Manuel of his Miranda rights and he signed an
advice-of-rights form, the agents took him upstairs to a bedroom
and questioned him about his involvement in the Houston
organization. Agents Luis Vasquez and Bingham, who conducted the
interrogation, testified that Manuel confessed to his involvement
in the Houston organization, admitted that he drove the second
Cadillac between the hotel and the Ivy Oaks residence, conceded
that he had leased the Ivy Oaks residence for use as a stash house,
and volunteered that he had personally helped to unload several
7
shipments of cocaine there. The agents testified that they talked
with Manuel for about an hour and one-half, during which time they
neither threatened him nor promised him anything in exchange for
his cooperation. The agents neither recorded any of Manuel's
statements nor reduced them to writing.
Not surprisingly, Manuel's version of his discussion with the
agents is quite different. He denies confessing and insists that
all he told the agents regarding his connection with the Ivy Oaks
residence was that he (1) helped lease it for someone else (but had
no idea that the person was going to use it to store cocaine),
(2) did nothing there other than to perform yard work, and
(3) loaned his wife's station wagon to the lessee earlier that
month. He also claims that the agents accused him of being a
Columbian drug dealer and threatened him and Debra with life
imprisonment for their crimes.
As hereafter discussed in greater detail, Manuel and Debra
filed motions to suppress the evidence seized in the warrantless
search of the Clear Cove residence or obtained as a direct result
of that search. The district court denied those motions.
Debra and Manuel were subsequently tried and convicted by a
jury of conspiracy to possess with intent to distribute over five
kilograms of cocaine in violation of 21 U.S.C. §§ 846 and 841, and
of the underlying substantive possession offense in violation of 21
U.S.C. § 841 and 2 U.S.C. § 2. The district court sentenced Manuel
to two concurrent terms of 360 months, followed by a term of five
years supervised release; and sentenced Debra to two concurrent
8
terms of 240 months imprisonment, followed by a term of five years
supervised release. This appeal followed.
II
ANALYSIS
A. MANUEL RICO
Manuel claims that the district court erred in (1) denying a
motion to suppress statements he allegedly made to agents, and
(2) allowing the government to introduce physical evidence obtained
during the search of his home, the Clear Cove residence, which was
conducted after the agents had entered the residence, conducted a
protective sweep, and obtained Manuel's purportedly coerced consent
to search the premises further.3
1. Motion to Suppress Evidence of Manuel's Statements
Manuel was arrested in his home on various narcotics-related
charges. Over his objection, two arresting agents testified at
trial about statements Manual purportedly made after his arrest.
Manual had moved to suppress evidence of those statements, claiming
that (1) they were the fruit of a warrantless entry and arrest
inside his residence, and (2) any statements that he may have made
were coerced, regardless of whether the entry and his arrest were
lawful. We review a district court's denial of a motion to
suppress by viewing the facts in the light most favorable to the
prevailing party (here, the government), accepting the district
3
Manuel also argues that there is no transcript of his
sentencing hearing, thus precluding him from reviewing the
proceeding. But Manuel's argument is not merely frivolous; it is
patently false. The record contains a full transcript of
Manuel's sentencing hearing.
9
court's factual findings unless clearly erroneous, and considering
all questions of law de novo.4
a. Warrantless Entry of Clear Cove Residence
Manuel argues that evidence of statements he purportedly made
to FBI agents after they had entered the Clear Cove residence to
conduct a protective sweep should have been suppressed as fruit
from the poisonous tree, because, according to Manuel, the
statements were obtained as a direct result of that allegedly
unconstitutional entry. He does not argue that the FBI agents
lacked probable cause to enter his Clear Cove residence; rather, he
complains that his Fourth Amendment guarantee to be free from
unreasonable searches and seizures was violated because the agents
did not have a warrant to enter his home.5 The government relies
on the "exigent circumstances" exception to the warrant requirement
to justify its entry into the Clear Cove residence.
i. Exigent Circumstances
Although presumptively unreasonable, a warrantless entry will
survive constitutional scrutiny if, inter alia, "exigent
circumstances exist to justify the intrusion."6 The burden is on
4
United States v. Shannon, 21 F.3d 77, 81 (5th Cir.), cert.
denied, 115 S. Ct. 260 (1994).
5
U.S. CONST. amend. IV ("The right of the people to be secure
in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated . . .
.").
6
United States v. Richard, 994 F.2d 244, 247 (5th Cir.
1993); see Payton v. New York, 445 U.S. 573, 589 (1980).
10
the government to prove the existence of the exigency.7
Exigent circumstances "include those in which officers
reasonably fear for their safety, where firearms are present, or
where there is a risk of a criminal suspect's escaping or fear of
destruction of evidence."8 In evaluating whether exigent
circumstances existed, we have found relevant the following
factors:
(1) the degree of urgency involved and amount of time
necessary to obtain a warrant;
(2) [the] reasonable belief that contraband is about to
be removed;
(3) the possibility of danger to the police officers
guarding the site of contraband while a search warrant is
sought;
(4) information indicating the possessors of the
contraband are aware that the police are on their trail;
and
(5) the ready destructibility of the contraband and the
knowledge "that efforts to dispose of narcotics and to
escape are characteristics behavior of persons engaged in
the narcotics traffic."9
There can be little doubt that exigent circumstances existed
once the agents abandoned their covert surveillance of the Clear
Cove residence and arrested Cuero in the van that was parked in
front of that residence. As the district court aptly noted, "if
you are standing around in the front yard arresting people in the
driveway, you need to make sure that there is not assistance to him
7
United States v. Thompson, 700 F.2d 944, 946 (5th Cir.
1983).
8
United States v. Mendoza-Burciaga, 981 F.2d 192, 196 (5th
Cir. 1992), cert. denied, 114 S. Ct. 356 (1993).
9
Richard, 994 F.2d at 248 (quoting Thompson, 700 F.2d at
948)); accord United States v. Riley, 968 F.2d 422, 425 (5th
Cir.), cert. denied, 113 S. Ct. 507 (1992).
11
by people in other parts of the premises."10 That observation is
particularly cogent here, for the agents had a reasonable belief,
based on reliable information, that the suspects inside the house
might be armed and dangerous.
But our scrutiny does not begin with the predicament the
agents faced at the instant that they chose to abandon their covert
surveillance, approach the Clear Cove residence, and seize Cuero.11
Rather, we must begin with a consideration of remote events, more
akin to examining a video tape by instant replay than to examining
a snapshot. We thus review the entirety of the agents'
investigative tactics, particularly those leading up to the
exigency alleged to have necessitated the protective sweep.12 In
the instant case, it was the agents' actions leading to, and
including, their decision to discontinue covert surveillance and
make the open and obvious arrest of Cuero in front of the Clear
10
Or, we hasten to add, that suspects inside are destroying
evidence.
11
See United States v. Munoz-Guerra, 788 F.2d 295, 297-98
(5th Cir. 1986) (stating that review is not confined to
circumstances after police made presence known; rather issue is
"whether exigent circumstances justified the agents' initial
decision to approach the [premises]").
12
United States v. Duchi, 906 F.2d 1278, 1284 (8th Cir.
1990) ("For the claim of exigent circumstances to be adequately
evaluated, the . . . question to ask is: how did those urgent
circumstances come about? This antecedent inquiry))into the
reasonableness and propriety of the investigative tactics that
generated the exigency))seems to be what courts have in fact been
doing in these kind of cases."); United States v. Rosselli, 506
F.2d 627, 630 (7th Cir. 1974) (Stevens, J.) ("When the emergency
justification is advanced, we believe it appropriate to appraise
the agents' conduct during the entire period after they had a
right to obtain a warrant and not merely from the moment when
they knocked on the front door.").
12
Cove residence that made the immediate warrantless entry of that
house a foregone conclusion.13 At that point there was no stopping.
ii. Manufactured Exigency
Just as exigent circumstances are an exception to the warrant
requirement, a police-manufactured exigency is an exception to an
exception. Manuel contends that the agents, by deciding to abandon
covert surveillance when they did, created or "manufactured" an
exigency that otherwise would not have existed, and that therefore
the government may not now rely on that emergency to justify the
warrantless entry into the Clear Cove residence. "Exigent
circumstances . . . do not pass Fourth Amendment muster if the
officers deliberately create them."14 We "distinguish between cases
where exigent circumstances arise naturally during a delay in
obtaining a warrant and those where officers have deliberately
created the exigent circumstances."15
13
See Richard, 994 F.2d at 249 (holding that agents created
exigency when they announced themselves as "warrantless entry
became a foregone conclusion once officers knocked"); United
States v. Hultgren, 713 F.2d 79, 88 (5th Cir. 1983) (analyzing
whether "[t]his is . . . a case where exigent circumstances were
deliberately created by the government").
14
Richard, 994 F.2d at 248; see Hultgren, 713 F.2d at 88
("This is not a case where the exigent circumstances were
deliberately created by the government. There is no evidence
whatsoever that the government planned or `faked' the
precipitating cause of the exigent circumstances . . . ."); cf.
United States v. Randall, 887 F.2d 1262, 1266-67 (5th Cir. 1989)
(holding that exigent circumstances justified warrantless entry
into hotel room, as agents faced "now or never" situation when
suspects showed illegal narcotics and demanded informant obtain
purchase money).
15
United States v. Webster, 750 F.2d 307, 327 (5th Cir.
1984), cert. denied, 471 U.S. 1106 (1985).
13
Exigencies can be manufactured guilelessly or ulteriorly.
Although "[t]here is no question that the deliberate creation of
urgent circumstances is unacceptable[,] . . . bad faith is not
required to run afoul [of the Fourth Amendment]."16 As the Eighth
Circuit has reminded us, "the danger to constitutional rights more
often comes from `zealous officers' rather than faithless ones."17
In determining whether the exigent circumstances were manufactured
by the agents, we therefore must consider not only the motivation
of the police in creating the exigency but also "the reasonableness
and propriety of the investigative tactics that generated the
exigency."18 As there is no evidence here that the FBI agents acted
16
Duchi, 906 F.2d at 1284. See generally 2 WAYNE R. LEFAVE,
SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 6.5(b), at 662
(2d ed. 1987) (analyzing United States v. Rubin, 474 F.2d 262 (3d
Cir.), cert. denied, 414 U.S. 833 (1973), by focusing, in part,
on whether "investigative technique" of tailing suspect was
"logical" under the circumstances, making apprehension necessary
"once it reasonably appeared that [the suspect] was aware he was
being followed").
17
Duchi, 906 F.2d at 1284 (citing United States v. Johnson,
333 U.S. 10, 13 (1948) (Jackson, J.)).
18
Id.; see United States v. Johnson, 12 F.3d 760, 764 (8th
Cir. 1993) (citing Duchi), cert. denied, 114 S. Ct. 2689 (1994).
But cf. United States v. Socey, 846 F.2d 1439 (D.C. Cir.) ("As
long as the police measures are not deliberately designed to
invent exigent circumstances, we will not second-guess their
effectiveness."), cert. denied, 488 U.S. 858 (1988).
Although we recognize that in Socey the D.C. Circuit appears
to imply that courts should review only for bad faith a
defendant's claim that law enforcement authorities created an
exigency, we do not read our circuit precedent so narrowly. In
both United States v. Munoz-Guerra, 788 F.2d 295 (5th Cir. 1986),
and United States v. Richard, 994 F.2d 247 (5th Cir. 1993), for
example, we held that law enforcement officers had manufactured
the exigencies that made necessary subsequent warrantless
entries, but in neither opinion did we find that those officers
had acted in bad faith. We also find most persuasive the Eight
14
in bad faith or that they specifically intended to create an
exigency in avoidance of the warrant requirement, we need only
review the reasonableness of the agents' investigative tactics))in
particular, those actions that led up to the decision to
discontinue covert surveillance, approach the Clear Cove residence,
and seize Cuero.
"Our first concern in analyzing a claim of a manufactured
exigency is whether agents could have obtained a search warrant
prior to the development of the exigent circumstances upon which
they relied."19 "It is, of course, axiomatic that agents are not
required to obtain a search warrant as soon as it is practicable to
do so."20 Here the agents clearly lacked sufficient time between
the point at which the circumstances that the agents claim
motivated them to enter that residence developed and the point at
which probable cause to enter the Clear Cove residence developed.
Agent Bingham was dispatched to watch the Clear Cove residence
almost immediately after agents had discovered significant
additional information linking narcotics found at the Ivy Oaks
residence to persons residing at Clear Cove. Shortly after he
arrived at Clear Cove, Bingham observed activities both inside and
outside the house that, according his testimony, led him to believe
Circuit's reasoning in Duchi and agree that Fourth Amendment
jurisprudence has consistently emphasized that we should focus on
the reasonableness of the search and seizure))not on whether the
officers acted in good or bad faith.
19
Webster, 750 F.2d at 327.
20
Id.
15
that a felony suspect (possibly all suspects) was preparing to
leave in a vehicle containing contraband. We are satisfied that
the short span of time between the agents' discovery of evidence
linking the two residences and Bingham's observations was not
sufficient to seek and obtain a warrant.
Finding that there was insufficient time in which to obtain a
warrant prior to the occurrence of the events that gave rise to the
exigency, we next consider whether the agents themselves
nevertheless created the urgent situation by the use of
unreasonable law enforcement tactics. Clearly, the agents acted
appropriately in dispatching Agent Bingham to watch the Clear Cove
residence once the search of the Ivy Oaks stash house revealed
tangible evidence linking the two residences. Agent Bingham
testified unequivocally that he thought that Cuero, a suspected
felon, was preparing to leave in a van loaded with narcotics:
"[I]t looked like these folks were getting ready to leave, and this
vehicle [the van] was a load vehicle containing cocaine like the
other vehicles we were already familiar with." That belief was
clearly justified, just as were his actions, when, at that point,
he radioed for backup. Responding to that appropriate call, three
other agents arrived within minutes and, with Agent Bingham,
decided to approach the house and to arrest or detain Cuero and the
others before they were able to drive away in vehicles suspected of
containing contraband. It was certainly reasonable for the agents
to arrest or detain unidentified felony suspects before they
escaped or removed contraband.
16
Thus if we conclude that Agent Bingham's beliefs were
reasonable, based on his experience, knowledge, and observations at
the time, then circumstances existed that justified or even
required immediate action. On the other hand, if we conclude that
Agent Bingham was unreasonable in believing, based on those same
circumstances, that the suspects were preparing to depart with
contraband, then there would have been essentially no reasonable
justification or need for the agents to approach the Clear Cove
residence and confront the suspects, which was the tactical
decision that made the subsequent protective sweep a foregone
conclusion. And our precedent makes clear that the government
cannot rely on exigent circumstances to excuse a warrantless entry
to conduct a protective sweep if the circumstances and thus the
sweep were made necessary by the law enforcement officers' decision
to abandon a covert surveillance and confront the suspects without
any justification whatsoever.21 That is a classic example of a
police-manufactured exigency.
But the very question of the reasonableness of Agent Bingham's
beliefs is what makes this case a close one. Unfortunately, in the
21
See, e.g., Richard, 994 F.2d at 249-50 (holding that
agents created exigency when they announced themselves as
"warrantless entry became a foregone conclusion"); Munoz-Guerra,
788 F.2d at 298-99 (rejecting argument that exigent circumstances
excused warrantless entry where agents' confrontation of suspects
under covert surveillance was without any justification); cf.
United States v. Carillo-Morales, 27 F.3d 1054 (5th Cir. 1994)
(exigent circumstances justified arrest of suspects in front of
garage, which made warrantless entry of building a foregone
conclusion, as police reasonably risked loss of felony suspect
and contraband had they delayed confrontation), cert. denied, 115
S. Ct. 1163 (1995).
17
suppression hearing neither the district court nor the parties
focused on the information and observations upon which Bingham
relied in concluding that the suspects were preparing to leave. In
fact, the district court adduced no evidence at all during the
suppression hearing, electing instead to consider proffers from
each attorney as to what their witnesses would testify.
Consequently, the facts pertinent to our review of the
reasonableness of Bingham's conclusion are not as well developed as
they should be to facilitate appellate review))making this already
close case even more difficult to call.
In reviewing a district court's denial of a motion to suppress
evidence, however, we "may consider not only the evidence from the
suppression hearing but also evidence presented during the trial."22
Our ability to do so helps us to some extent in this instance. At
trial, Agent Bingham recounted several concrete details to
substantiate the reasonableness of his belief that Cuero and the
others were preparing to leave. He testified that he watched Cuero
come out of the house, walk to the driver's side of the van, reach
down around the floorboard area, and then go around to the back of
the vehicle and climb inside. He also stated that he saw "some
activity just in the door frame" of the house, leading him to
believe that others too were preparing to leave, but on that point
he did not elaborate further. Still, when we consider those
observations in light of the information that Bingham knew at that
22
United States v. Basey, 816 F.2d 980, 983 n.1 (5th Cir.
1987).
18
time as a result of the information from Philadelphia, the earlier
surveillance, and the search of the Ivy Oaks residence, viewing all
the facts in the light most favorable to the government as the
prevailing party in the suppression hearing, we do not find
"unreasonable" Agent Bingham's belief that Cuero, and possibly
other suspects too, might have been preparing to leave. That leads
us inexorably to the conclusion that the exigency was not created
by illogical or unreasonable investigative tactics.
Our conclusion here, rejecting Manuel's argument that the FBI
manufactured the exigency by arresting Cuero in front of the Clear
Cove residence, is consistent with the result we reached in another
recent case involving very similar facts. In United States v.
Carillo-Morales,23 we rejected an argument that officers created
exigent circumstances by stopping a vehicle in front of a body
shop, even though the police "almost certainly knew that stopping
the [car] at the body shop would reveal their [the police's]
presence to the [suspects] remaining inside, necessitating a
protective search."24 In that case, two men suspected of
23
27 F.3d 1054 (5th Cir. 1994), cert. denied, 115 S. Ct.
1163 (1995).
24
Id. at 1062-63; see also United States v. Mendoza-
Burciaga, 981 F.2d 192, 196 (5th Cir. 1992), cert. denied, 114 S.
Ct. 356 (1993). In Mendoza-Burciaga, police apprehended a
suspect as he apparently recognized the presence of law
enforcement personnel and attempted to flee in a truck. The
officers had earlier observed several other suspects in a house
where the truck had been parked, but did not know whether they
were still in there at the time of the arrest. We found that it
was not clearly erroneous for the district court to find that
exigent circumstances existed to enter the home; "[i]f others
were in the house and armed, the officers would be in great
danger." Id. at 197. As here, the officers in that case limited
19
involvement in a drug-trafficking conspiracy came out of a body
shop and got into a nearby car. Based on information already
obtained during the investigation, the police testified))as did
Agent Bingham here))that they reasonably believed that the suspects
were preparing to leave and that the vehicle in which they were
departing contained contraband. We held that exigent circumstances
justified the officer's decision to arrest the two suspects without
a warrant in front of the body shop, even though the officers would
then be left with no choice but to enter and secure that building
to ensure their own safety. Had the officers not acted, we noted,
they would have risked losing both the suspects and the contraband
in the departing car. We rejected the argument that the police
were required to follow the suspects in the car until they drove to
a location out of sight of the body shop, so that when the arrests
were made the suspicions of the suspects who remained inside that
building would not be aroused, requiring the police to enter the
body shop without a warrant to conduct a protective sweep.25 Thus
we found unavailing the argument that the officers manufactured
their initial search to that minimally necessary to secure the
house.
25
See, e.g., United States v. Webster, 750 F.2d 307, 328
(5th Cir. 1984) (rejecting argument that police manufactured
exigent circumstances by failing to stop suspects before they
entered hotel room), cert. denied, 471 U.S. 1106 (1985); see also
United States v. Riley, 968 F.2d 422, 424-26 (5th Cir.) (holding
that exigent circumstances justified securing residence, where
police arrested suspect who had cellular phone and police
reasonably believed arrestee's failure to call or return to house
would alert occupants that "something had gone wrong"), cert.
denied, 113 S. Ct. 507 (1992).
20
their own exigency.26
26
The D.C. Circuit considered similar facts in United States
v. Socey, 846 F.2d 1439 (D.C. Cir.), cert. denied, 488 U.S. 858
(1988), and arrived at the same conclusion that we did in
Carillo-Morales, although, as we noted above, they applied a more
deferential review of police procedures.
In Socey, the defendants contended that police officers
intentionally created an exigency by stopping a vehicle))which
the police reasonably believed was transporting
narcotics))"unnecessarily and unreasonably" close to a house
under surveillance, thus creating the need to conduct a
protective sweep of those premises. Id. at 1448. An officer
testified at the suppression hearing that the automobile could
have been stopped five or six blocks from the residence, yet the
D.C. Circuit concluded that the exigency had not been created by
the police:
We reject the Soceys' claim that Detective Brenner's
decision to stop the Camaro was deliberate, in the
sense that his underlying purpose was to subvert the
warrant requirement. As an initial, factual matter, we
note that the district court did not, in any sense,
suggest that Brenner's actions were designed to create
a commotion or, more generally, to manufacture an
exigency. At most, the court stated that the actions
of the police were "possibly ill-advised." The
defendants' contrary claims find no support in the
record.
Reviewing the totality of the circumstances, we find
that Brenner's decision to stop the Camaro was anything
but "manufactured." After [two other officers] left
their surveillance position to pursue [another
suspect's] Datsun, Brenner was faced with the
incompatible duties of watching the house and stopping
a departing automobile, possibly containing contraband,
out of sight of the house. Under the circumstances, he
did the best he could by stopping the car some distance
from the house, but still in view to maintain his
watch. Id.
After distinguishing those circumstances from situations in prior
cases in which courts had previously found that law enforcement
officers' deliberate conduct created exigent circumstances, the
Socey court continued:
Perhaps Detective Brenner could have pursued a
different course, less likely to expose the police
presence to the occupants in the house. But this
21
We find the teachings of Carillo-Morales instructive in
resolving the instant case. We have already concluded that Agent
Bingham was reasonable in concluding that Cuero, a suspected felon,
was preparing to leave in the van and that the van was likely to
contain contraband. Perhaps Agent Bingham could have pursued a
different course; he might have waited until Cuero drove away from
the house and then have him apprehended by the other agents well
out of sight and earshot of the other suspects. But we will not
second-guess law enforcement tactics as long as those tactics are
neither unreasonable nor employed with specific intent to create an
emergency simply to circumvent the warrant requirement.
That Agent Bingham could reasonably believe that a felony
suspect was preparing to depart in a car possibly containing
contraband makes this case distinguishable from cases such as
Munoz-Guerra27 and United States v. Richard.28 In each of those
cases, law enforcement officers were found to have created the
exigency that then required a warrantless entry, as there was no
justification for the officers to abandon covert surveillance and
confront the suspects.
calculation, made in hindsight, is not relevant to our
inquiry. Moreover, the police should not be taxed with
having failed to cover every eventuality and to arrange
a sufficiently large dragnet to permit all persons
leaving the house to be apprehended in perfect silence.
As long as the police measures are not deliberately
designed to invent exigent circumstances, we will not
second-guess their effectiveness. Id. at 1449.
27
788 F.2d 295 (5th Cir. 1986).
28
994 F.2d 244 (5th Cir. 1993).
22
In Munoz-Guerra, Drug Enforcement Administration agents who
were responding to an anonymous tip placed a residence under
surveillance. One of the agents noticed some narcotics in plain
view through a window, but instead of maintaining their
surveillance and seeking a warrant, the agents knocked at a glass
patio door. When a suspect appeared, the officers ordered him to
open the door, but he responded that it was locked and he would
have to get the key from another room. Fearing that the suspect
might retrieve a weapon or destroy evidence, the agents kicked in
the door and secured the premises. The government argued that
exigent circumstances justified their warrantless entry, but we
disagreed. We found that the police were not justified in knocking
on the door and thereby forcing a confrontation, as their
surveillance was undetected and the premises were effectively
secured. We concluded that the officers had created the
predicament by choosing to confront the suspects without any
provoking acts by the suspects or other justification whatsoever.29
Richard is likewise distinguishable from the instant case.
There, federal customs agents received information that a person
suspected of trafficking narcotics was staying in a particular
hotel room. Without attempting to place the premises under
surveillance while seeking a warrant, the agents proceeded to that
29
See Munoz-Guerra, 788 F.2d at 298-99 ("Had the police's
necessary efforts to secure the premises been visible to the
inhabitants or had there been reason to believe that someone in
the condominium was in need of immediate succor, the government's
position [that exigent circumstances justified the warrantless
entry] would have merit.").
23
room, knocked on the door, and identified themselves as law
enforcement officers. The occupants responded, "wait a minute."
The agents testified that at that moment they heard people
whispering and moving about, and doors or drawers being slammed.
When finally the agents saw the doorknob turn, they kicked in the
door, entered the room, and arrested the occupants. Although the
district court agreed with the government that exigent
circumstances existed, the court found that those circumstances had
been created by the agents when they elected to knock on the door
and identify themselves as police at a time when the suspects had
not acted in a way to provoke such behavior by the police. We
found no clear error in that ruling, noting that there was no
reason for the agents to abandon covert surveillance of the room.
In one significant respect the instant case differs markedly
from Munoz-Guerra and Richard: Here it was the unprovoked conduct
of the suspects that led the agents reasonably to believe that the
suspects intended to depart momentarily in a vehicle likely
containing contraband. That activity, unprovoked by law
enforcement officers, is what prompted the agents to abandon their
covert surveillance and confront the suspects, clearly a reasonable
tactic under the circumstances.30 There were no comparable
unprovoked acts of the suspects in either Munoz-Guerra or Richard
30
Compare United States v. Curzi, 867 F.2d 36, 42-43 (1st
Cir. 1989) (noting that agents' decision to reveal their presence
"was not prompted by any activity in the house or any exigent
circumstances") with United States v. Capote-Capote, 946 F.2d
1100, 1103 (5th Cir. 1991) ("This is not a case like Thompson or
Scheffer, in which the government controlled the timing of the
transaction . . . ."), cert. denied, 112 S. Ct. 2278 (1992).
24
to justify the actions by law enforcement officials; in both of
those cases, elective acts of law enforcement agents prompted the
activities of the suspects that in turn produced the exigencies.
It is certainly true that the FBI agents here might have
foreseen that one or more suspects at the Clear Cove residence
would leave in a vehicle believed to contain contraband. But the
fact that the exigency may have been foreseeable "does not, by
itself, control the legality of a subsequent warrantless search
triggered by that exigency."31 "The important point . . . is that
the exigency while perhaps not unexpected, had not been created by
the government."32 And, as discussed above, the exigency here was
created by unprovoked actions of the suspects (not of the agents)
when they behaved in a manner that could reasonably have led Agent
Bingham to conclude that their departure from the premises was
imminent.
b. Voluntariness of Confession and Statements
Manuel nevertheless contends that even if exigent
circumstances did justify the agent's warrantless entry into the
Clear Cove residence, the district court still erred in permitting
Agents Vasquez and Bingham to testify about statements Manual
purportedly made to them after he was arrested.33 This is so, he
31
United States v. Webster, 750 F.2d 307, 327 (5th Cir.
1984), cert. denied, 471 U.S. 1106 (1985); see United States v.
Hultgren, 713 F.2d 79, 88 (5th Cir. 1983) ("The fact that the
exigency might have been foreseeable does not control.").
32
Hultgren, 713 F.2d at 88 (emphasis in original).
33
Manuel maintains that the agents lied; he claims he never
confessed to the agents that he was involved in a conspiracy to
25
insists, because whatever he might have said was coerced and thus
involuntary. Manuel correctly notes that the government has the
burden of proving by a preponderance of the evidence that a
defendant voluntarily waived his constitutional rights against self
incrimination and that the statements he made were voluntary.34 The
standard for determining whether a confession or statement was
voluntarily made is whether, taking into consideration the
"totality of the circumstances," the accused spoke as a result of
his free and rational choice, with an awareness of his abandonment
of the right to remain silent and of the consequences of that
decision.35
After Manuel was handcuffed, he was read his Miranda rights in
Spanish; he signed an advice-of-rights card in which he
acknowledged waiving those rights; and he then accompanied the
agents to an upstairs bedroom where the two agents questioned him.
The record is devoid of evidence that the agents physically
threatened Manuel or made any promises to obtain his cooperation.
True, Manuel claims that the agents accused him of being a
Columbian drug dealer and stated that he and Debra would be sent to
prison for the rest of their lives because of their crimes; but
such allegations, even if proved true, would be insufficient,
distribute narcotics. We leave the resolution of such
credibility choices to the trier of fact.
34
United States v. Rojas-Martinez, 968 F.2d 415, 417 (5th
Cir.), cert. denied, 113 S. Ct. 828 (1992) and 113 S. Ct. 995
(1993).
35
United States v. Ornelas-Rodriguez, 12 F.3d 1339, 1347
(5th Cir. 1994), cert. denied, 115 S. Ct. 103 (1994).
26
standing alone, to establish that his subsequent cooperation was
involuntary.
2. Consent Search of the Clear Cove Residence
After the agents had entered and secured the Clear Cove
residence by conducting a protective sweep, they asked Manual
whether they could search the premises. Manuel gave the FBI agents
his permission, so they searched the Clear Cove residence and the
surrounding area and recovered additional evidence that linked that
residence to the Ivy Oaks stash house. Although at neither the
suppression hearing nor at trial did Manual object to the
introduction of evidence obtained during that search, on appeal he
argues that the evidence should have been excluded because his
consent to the FBI's search was involuntarily given. As Manuel did
not raise this objection below, our review is limited to a search
for plain error.36
"A search may be conducted without either probable cause or a
warrant if it is conducted pursuant to consent."37 "For consent to
be valid, however, the government must prove by a preponderance of
the evidence that consent was given freely and voluntarily,"38 a
determination which must be based on the totality of the
36
United States v. Iwegbu, 6 F.3d 272, 274-75 (5th Cir.
1993).
37
United States v. Richard, 994 F.2d 244, 250 (5th Cir.
1993) (citing Scheckloth v. Bustamonte, 412 U.S. 218, 219
(1973)).
38
Id. (citing United States v. Kelley, 981 F.2d 1464, 1470
(5th Cir.), cert. denied, 113 S. Ct. 2427 (1993)); accord United
States v. Hurtado, 905 F.2d 74, 76 (5th Cir. 1990).
27
circumstances.39 "We consider six factors in evaluating the
voluntariness of consent:
(1) the voluntariness of the defendant's custodial
status; (2) the presence of coercive police procedures;
(3) the extent and level of the defendant's cooperation;
(4) the defendant's awareness of his right to refuse to
consent; (5) the defendant's education and intelligence;
and (6) the defendant's belief that no incriminating
evidence will be found."40
"Although all six factors are relevant, no single one is
dispositive."41
After the agents had conducted the protective sweep and had
read the handcuffed Manuel his Miranda rights in Spanish, he signed
a form consenting to a search of his residence. Like his claims
regarding his statements, Manuel now insists that his consent to
search his home was coerced: The agents had illegally entered his
house with guns drawn; had handcuffed him and his wife and removed
her from the house; had told him that they had evidence linking him
to the narcotics found at the Ivy Oaks residence; and then, without
advising him of his right to refuse, had asked him if he would
consent to a search of his home.
Not only have we already concluded that the agents entered
Manuel's house legally, we discern no record evidence to support
Manuel's allegations that the agents obtained his consent by
39
United States v. Gonzalez-Basulto, 898 F.2d 1011, 1012-13
(5th Cir. 1990).
40
Richard, 994 F.2d at 25-51 (quoting Kelley, 981 F.2d at
1470).
41
Id. (citing Brown v. Illinois, 422 U.S. 590, 603-04 (1975)
and Kelley, 981 F.2d at 1470)).
28
feigning lawful authority to search the premises, by threatening
him, or by promising him anything. The version of the record
evidence implicitly credited by the district court also makes clear
that Manuel was quite cooperative with the agents and that they
recovered very little incriminating evidence from the search of his
Clear Cove residence))a fact from which one could deduce that
Manuel consented to the search because he believed))correctly))that
the agents would find little if any damaging evidence. Although
Manuel may have been startled by the fact and manner of his
apprehension, not to mention by the repercussions therefrom, we
cannot say that the district court committed plain error in finding
that Manuel's consent to the search was voluntary. We perceive no
grave miscarriage of justice therefrom, given all other evidence
and circumstances of the case.
B. DEBRA RICO
Debra assigns only one point of error on appeal; namely, that
her Sixth Amendment guarantee of effective assistance of counsel
was violated as a result of an alleged conflict of interest of her
trial counsel, Ralph Martinez. "Under the Sixth Amendment, where
there exists a constitutional right to counsel, there exists a
correlative right to representation that is free from any conflict
of interest."42 As with many other rights, though, the right to a
conflict-free counsel is not absolute. It can be waived if (1) the
42
United States v. Carpenter, 769 F.2d 258, 262 (5th Cir.
1985).
29
waiver is made voluntarily, knowingly, and intelligently,43 and
(2) the conflict is not so severe as to undermine the integrity of
the judicial system.44 We consider first whether there was an
actual conflict of interest; if so, whether Debra did in fact
freely and validly waive her right to a representation by a
conflict-free attorney; and if that too is so, whether the conflict
is nevertheless so severe as to be unwaivable as a matter of law.
1. Actual Conflict of Interest
Joint representation does not necessarily create a conflict of
interest.45 "To establish a [S]ixth [A]mendment violation, a
defendant who raised no objection at trial must show that an actual
conflict of interest affected [her] attorney's performance."46
Debra claims for the first time on appeal that an actual conflict
existed in this case because))by representing both her and her
husband))Attorney Martinez could not advance for her the defenses
of duress or battered spouse without jeopardizing his defense of
her husband, Manuel, in both the instant case and in another
prosecution then pending in state court, in which Manuel was
charged with sexually abusing Debra's daughter (his step-daughter).
43
United States v. Garcia, 517 F.2d 272, 276-77 (5th Cir.
1975).
44
United States v. Vaquero, 997 F.2d 78, 90-91 (5th Cir.),
cert. denied, 114 S. Ct. 614 (1993).
45
United States v. Lyons, 703 F.2d 815, 820 (5th Cir. 1983)
(citing Holloway v. Arkansas, 435 U.S. 475, 482 (1978)).
46
Id.; see Cuyler v. Sullivan, 446 U.S. 335, 350 (1980);
United States v. Cook, 45 F.3d 388, 393 (10th Cir. 1995)
(explaining Cuyler).
30
"An actual conflict exists if `counsel's introduction of
probative evidence or plausible arguments that would significantly
benefit one defendant would damage the defense of another defendant
whom the same counsel is representing.'"47 Debra's claim of actual
conflict rests solely on her assertion that she might have been
exonerated if she had had conflict-free counsel who could have
advanced the defenses of duress or battered spouse on her behalf.
Obviously, that assertion amounts to little more than rank
speculation, for the record reflects only that her daughters, but
not she, were possibly victims of abuse by Manuel. The record does
contain some evidence suggesting that Manuel may have mistreated
Debra's daughters, but the only indications that Debra herself
might also have been a victim are statements by her
daughters))which Debra emphaticly refuted. Even if Debra had been
abused by Manuel, the record makes clear that she remained
steadfastly unwilling to assert that claim: She has consistently
defended Manuel against allegations that he abused her children and
has flatly denied that he ever harmed her.
Our decision in United States v. Lyons,48 governs Debra's Sixth
Amendment argument. In that case, one attorney represented both
47
Lyons, 703 F.2d at 820-21 (quoting Baty v. Balkcom, 661
F.2d 391, 395 (5th Cir. 1981), cert. denied, 456 U.S. 1011
(1982)); see United States v. Holley, 826 F.2d 331, 334 (5th Cir.
1987) ("`A conflict of interest is present whenever one defendant
stands to gain significantly by counsel adducing probative
evidence or advancing plausible arguments that are damaging to
the cause of a codefendant whom counsel is also representing.'"
(quotation omitted) (emphasis added in Holley)), cert. denied,
485 U.S. 960 (1988).
48
703 F.2d 815 (5th Cir. 1983).
31
husband and wife at trial. On appeal, the wife argued, as Debra
does here, that the joint representation violated, inter alia, her
constitutional right to a conflict-free counsel. She urged that
she "might have exonerated herself by claiming that she was the
innocent dupe of [her husband]."49 We noted in Lyons that the
record was devoid of evidence of such circumstances and that the
wife's allegation "amounts to little more than speculation . . .
[and] does not constituted the actual conflict of interest required
. . . to obtain relief."50 Similarly, the instant record is devoid
of evidence that Debra was abused by Manuel. Her argument that she
might have been exonerated on either defense))duress or battered
spouse))is pure conjecture, akin to the speculative argument
proffered by Mrs. Lyons, which we held insufficient to constitute
the type of actual conflict that merits relief.51
2. Waiver of Right to Conflict-Free Counsel
But even if we assume arguendo that Martinez' joint
representation of Debra and Manuel did create an actual conflict of
interest, the record establishes that Debra validly waived her
right to a conflict-free counsel. At Debra's initial appearance,
49
Id. at 820 (emphasis added).
50
Id.
51
See id. at 820-21; Holley, 826 F.2d at 334 ("`Mere
speculation about a conflict . . . is insufficient to establish
ineffective representation.'" (quotation omitted)); see also
United States v. Solomon, 856 F.2d 1572, 1581 (11th Cir. 1988)
("Potential or hypothetical conflicts are insufficient; the
defendant must be able to point to specific instances in the
record showing that defense counsel actively represented
conflicting interests."), cert. denied, 489 U.S. 1070 (1989).
32
the magistrate judge repeatedly advised her of her constitutional
right to separate counsel and warned her of the potential pitfalls
of continuing with joint representation. Her counsel, Martinez,
had just alerted the court that he intended to represent both
spouses and advised the court that "we may want to do a Garcia
waiver or a conflict of interest waiver." The magistrate judge
agreed and then cautioned Debra, in accordance with Garcia,
regarding the possible hazards of joint representation:
[Y]ou [Debra] have the right to a lawyer who is loyal
only to you, and there may be some potential conflict
between a defense that is in your husband's best interest
and a defense that is in your best interest. And this
often happens between co-defendants, that evidence that
would tend to exculpate one of them tends to incriminate
the other.
You need to be aware of the possible conflict of interest by
being represented by the same lawyer as your husband, and if
you do decide to go forward with this attorney representing
both you and your husband, then at least, I would say))well,
you'll have to sign the waiver form before the detention
hearing. . . . [Y]ou'll have a chance to read over the
forms, discuss them with your attorney, and then, . . . we'll
have a formal waiver signature at our next hearing . . . .
That hearing substantially complied with the mandates of United
States v. Garcia52 and Rule 44(c)53 of the Federal Rules of Criminal
52
517 F.2d 272, 267-77 (5th Cir. 1975). When an actual
conflict of interest exists, we have instructed trial courts to
conduct a hearing, commonly referred to as a Garcia hearing, to
ascertain the effectiveness of a defendant's waiver of conflict-
free counsel. In that hearing, the court is "to ensure that the
defendant (1) is aware that a conflict of interest exists; (2)
realizes the potential hazards to [her] defense by continuing
with such counsel under the onus of a conflict; and (3) is aware
of [her] right to obtain other counsel." United States v. Greig,
967 F.2d 1018, 1022 (5th Cir. 1992).
53
Rule 44(c) of the Federal Rules of Criminal Procedure
compliments Garcia, similarly providing that:
33
Procedure.54
Again, at Debra's next judicial proceeding, her arraignment
and detention hearing, the court reminded her of the conflict
issue. This time the court obtained from her a signed document,
entitled "Joint Representation By Counsel))Waiver of Conflict of
Interest," in which she expressly and in writing waived her right
to a conflict-free counsel.
After receiving all of those admonitions, both orally and in
writing, Debra chose to waive her right. We are satisfied too that
she did so knowingly, intelligently, and voluntarily when
ultimately she signed the waiver document. In that instrument, she
expressly acknowledged that, inter alia, she had been advised of
her right to effective representation, understood the details and
potential perils of her attorney's possible conflict of interest,
had discussed the matter with her attorney and understood that she
could discuss it with outside counsel, and that she knowingly,
intelligently, and voluntarily waived the right to conflict-free
effective assistance of counsel provided by the Sixth Amendment.
[w]henever two or more defendants . . . are represented
by the same retained or assigned counsel . . . the
court shall promptly inquire with respect to such joint
representation and shall personally advise each
defendant of the right to effective assistance of
counsel, including separate representation. Unless it
appears that there is good cause to believe no conflict
of interest is likely to arise, the court shall take
such measures as may be appropriate to protect each
defendant's right to counsel.
54
Compare Solomon, 856 F.2d at 1579-80, 1582 (holding that
similar admonishments by court complied with Garcia and Rule
44(c)).
34
In the face of all that, Debra now complains unabashedly that
the court committed reversible error because it failed to engage
her in a colloquy adequate to satisfy Garcia, wherein we
recommended that "the court should . . . endeavor to have each
defendant personally articulate in detail his intent to forego
[the] significant constitutional protection" of a conflict-free
counsel.55 Although in that case we did recommend that trial courts
elicit such an exchange, the touchstone of a valid waiver is, as it
always has been, that it be made knowingly, intelligently, and
voluntarily and in "clear, unequivocal, and unambiguous language."56
Debra's waiver well satisfies all requirements notwithstanding the
absence of such a colloquy.
But our determination that Debra validly waived her right to
conflict-free counsel does not end our inquiry. For "[i]f the
conflict is so severe as to render a trial inherently unfair, then
55
Garcia, 517 F.2d at 278.
56
Id. ("We hold only that if, as a matter of fact, a
defendant after thorough consultation with the trial judge
knowingly, intelligently and voluntarily wishes to waive this
protection, the Constitution does not prevent him from so
doing."); see United States v. Williams, 809 F.2d 1072, 1085 (5th
Cir. 1987), ("The [defendants] knowingly waived their right,
intelligently and voluntarily. The law requires nothing more for
a valid waiver."), cert. denied, 484 U.S. 896 (1987); cf. United
States v. Holley, 826 F.2d 331, 334 (5th Cir. 1987) ("Evaluating
the trial court's compliance with Rule 44(c) . . . cannot be
divorced from a showing that a defendant has been denied his
[S]ixth [A]mendment right to effective counsel. `The inquiry and
advice provided for by that rule are not ends in themselves; they
are a procedure designed to prevent conflicts of interest.'"
(quoting Lyons)), cert. denied, 485 U.S. 960 (1988); United
States v. Lyons, 703 F.2d 815, 820 (5th Cir. 1983) ("The trial
court's failure to comply with Rule 44(c) does not, of itself,
entitle the [defendants] to relief.").
35
the integrity of the judicial system has been undermined, and the
accused has been deprived of [her] right to effective assistance of
counsel."57 "We determine whether the integrity of the judicial
system has been undermined by reference to the current national
standards of legal ethics,"58 although such standards are not
controlling.59
"The ABA Model Rules of Professional Conduct provide that an
attorney may not represent a client whose interests are adverse to
those of another client . . . unless the attorney reasonably
believes that the new client's representation will not be affected,
and the client consents after having the conflict explained to
[her]."60 Debra was fully apprised of the dangers inherent in the
joint representation; she consented to the representation after the
conflict was explained to her by both the court and her counsel;
and Martinez expressed his reasonable belief that his dual
representation would not affect his ability to represent Debra's
interests. As neither the defense of duress nor the defense of
battered spouse was raised at trial))and, based on the record, it
is far from certain whether facts exist that would even plausibly
support the raising of either defense))we cannot say that Martinez
57
United States v. Vaquero, 997 F.2d 78, 90 (5th Cir. 1993),
cert. denied, 114 S. Ct. 614 (1993).
58
Id. at 90-91.
59
In re Dresser Indus., Inc., 972 F.2d 540, 543-44 (5th Cir.
1992).
60
Vaquero, 997 F.2d at 91 (citing MODEL RULES OF PROFESSIONAL
CONDUCT Rule 1.7(a)).
36
was unreasonable in believing that his dual representation would
not affect his ability to represent Debra. And, as the Supreme
Court has noted, the "`"attorney representing two defendants in a
criminal matter is in the best position professionally and
ethically to determine when a conflict of interest exists or will
probably develop in the course of a trial."'"61
Current professional standards do not require a defense
counsel to assert every potential defense, regardless how
farfetched or implausible. To the contrary, attorneys are
routinely cautioned against advancing frivolous positions.62 And
frequently even the most astute advocates elect to forego plausible
arguments for tactical reasons or at the client's request. The
record before us indicates that there are precious few facts on
which a defense counsel could credibly construct an argument that
Debra became involved in this multi-kilogram narcotics operation
and continued her involvement for a protracted period because she
was under duress or was a battered spouse, especially considering
that Debra herself was apparently adamant in her refusal to allow
either defense to be raised. As such, we cannot say either that
the joint representation in this case created an actual conflict or
that, if it did, the conflict was sufficient to impugn the judicial
61
Cuyler v. Sullivan, 446 U.S. 335, 347 (1980) (quoting
Holloway v. Arkansas, 435 U.S. 475, 485 (1978) (quoting State v.
Davis, 514 P.2d 1025, 1027 (Ariz. 1973))).
62
We recognize, of course, that a lawyer for a defendant in
a criminal proceeding may "put the prosecution to its proof even
if there is no nonfrivolous basis for defense." MODEL RULES OF
PROFESSIONAL CONDUCT Rule 3.1 cmt. (comparing Model Rules with Model
Code).
37
system or render Debra's trial inherently unfair, thereby making
her right to conflict-free counsel unwaivable. To the contrary, it
was waivable; she did waive it; and she did so knowingly,
intelligently, and voluntarily.
III
CONCLUSION
Finding no reversible error, the convictions and sentences of
Manual and Debra Rico are, in all respects,
AFFIRMED.
38