United States v. Rico

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