U.S. v. Infante

Decision Date21 March 2005
Docket NumberNo. 02-50665.,02-50665.
Citation404 F.3d 376
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Ricardo M. INFANTE, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Joseph H. Gay, Jr., Asst. U.S. Atty. Margaret M. Embry (argued), San Antonio, TX, for U.S.

Daniel Saul Goldberg (argued), Vinson & Elkins, Houston, TX, for Infante.

Appeal from the United States District Court for the Western District of Texas.

Before KING, Chief Judge, and HIGGINBOTHAM and DAVIS, Circuit Judges.

KING, Chief Judge:

Defendant-Appellant Ricardo Macias Infante appeals his conviction and sentence for conspiracy to distribute and to possess with intent to distribute marijuana, conspiracy to import marijuana, and possession with intent to distribute marijuana. For the following reasons, we VACATE and REMAND to the district court for a determination on the question whether Infante's trial counsel's conflict of interest adversely affected his representation.

I. BACKGROUND

By a grand jury indictment returned on January 9, 2001, Defendant-Appellant Ricardo Infante and four co-defendants1 were charged in a twelve-count indictment in the Pecos Division of the Western District of Texas. Only counts one, two, and ten of the indictment implicated Infante. The charges against him were: (1) conspiracy to distribute and to possess with intent to distribute more than 1,000 kilograms of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count One); (2) conspiracy to import more than 1,000 kilograms of marijuana from Mexico to the United States in violation of 21 U.S.C. §§ 952(a), 960, and 963 (Count Two); and (3) possession with intent to distribute, or aiding and abetting the possession with intent to distribute, more than 100 kilograms but less than 1,000 kilograms of marijuana on June 29, 2000 in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count Ten). The indictment charged Infante with participation in a conspiracy spanning from January 23, 2000 to July 14, 2000. It charged him with only a single substantive count (Count Ten), relating to a drug-trafficking incident occurring on June 29, 2000.

Infante pled not guilty to all counts on January 12, 2001. His case was tried before a jury on August 20 and 21, 2001. At trial, the government presented evidence to establish six different incidents in which members of the alleged conspiracy were apprehended while transporting marijuana from Mexico into the United States.2 First, the government introduced evidence that on January 23, 2000, Zubia-Salgado and Polanco-Pando were stopped at a checkpoint south of Marfa, Texas while driving a pickup truck that was found to have a hidden compartment containing 369.86 pounds of marijuana. Neither Zubia-Salgado nor Polanco-Pando testified at Infante's trial.

Second, the government presented evidence that on January 29, 2000, Juan Gallegos-Natera was intercepted in or around Alpine, Texas while driving a pickup truck with a secret compartment containing 290.72 pounds of marijuana. Natera testified that he was promised payment by Sanchez, whom he met through a friend, for transporting the marijuana from Mexico into Texas. However, he stated that he had never met nor heard of Infante.

Third, the government set forth evidence that on February 26, 2000, the border patrol stopped Kristy Navarette and Lionel Campos, Salcido's nephew, while driving a Ford Bronco through the checkpoint south of Marfa, Texas. The border patrol discovered 96.52 pounds of marijuana hidden in the Bronco's gas tank. Navarette admitted that she had transported drugs across the border on a number of other occasions before being caught on February 26, 2000. She stated that she had used a Ford Bronco and a blue 1995 Chevy Suburban on those occasions. Navarette further testified that Campos, Sanchez, and Salcido were all players in the drug-trafficking operation with which she was involved, that Salcido is a known drug trafficker in the Ojinaga, Mexico area, and that she had met Polanco-Pando at some point in connection with this operation as well. However, she indicated that she never had met nor heard of Infante.

Fourth, the government presented evidence that on May 10, 2000, Benjamin Belloc was stopped at the checkpoint south of Marfa while driving a pickup truck that was discovered to have a hidden compartment containing 285.3 pounds of marijuana. Belloc admitted that Sanchez hired him to transport the marijuana into the United States and that he had smuggled drugs into the United States on at least five separate occasions. He testified that he had previously used a black truck, a red and gray Ford truck, and a blue Suburban on those occasions. He also stated that he did not know Infante and never had seen him before.

Fifth, the government introduced evidence that on June 29, 2000, the border patrol stopped Benigno Castellon while he was driving a Suburban that was found to have a secret compartment containing 715.46 pounds of marijuana. Castellon testified that prior to being arrested for drug trafficking, he had worked at Infante's auto-mechanic shop, Infante Motors. He stated that he had gone to Mexico with Infante on or about June 18, 2000, where he met Salcido, who is Infante's brother-in-law. Castellon testified that he agreed at that time to transport his first load of marijuana (roughly forty-seven pounds) into the United States in exchange for $2,000. Castellon stated that he delivered the first marijuana load from Mexico to Infante's house. He further testified that on June 29, 2000, Infante drove him to the bus station so that he could travel to Mexico, pick up the Suburban containing a second load of marijuana, and drive it back to Texas. It was while transporting this second load that Castellon was apprehended by the authorities. The Suburban that Castellon was driving when he was arrested was confiscated. An examination of the impounded Suburban revealed that it had been freshly painted and that it was blue underneath the new coat of white paint.3

Sixth, the government presented evidence that on July 14, 2000, Barbara Rivera-Hernandez was apprehended while driving a pickup truck between 100 and 200 yards from the US-Mexico border in Presidio, Texas. The border patrol discovered 341.24 pounds of marijuana hidden in a compartment under the floor-board of the truck. Rivera-Hernandez testified that Salcido, a known drug trafficker, had arranged for her to transport the marijuana into the United States. She also testified that she did not know Infante.

On August 21, 2001, the jury found Infante guilty of all three counts of the indictment. However, the jury found Infante guilty on the conspiracy counts with respect to only between 100 and 1,000 kilograms of marijuana, in contrast to the indictment, which charged Infante with conspiracy involving more than 1,000 kilograms. With respect to Count One, the jury expressly noted on its verdict form that it found Infante guilty only "as of June 29, 2000." The district court interpreted this note to mean that the jury found that Infante was involved only in the one transaction, which involved Castellon and occurred on June 29, 2000. Accordingly, the district court directed the probation officer assigned to Infante's case to take into consideration the amount of marijuana involved only in that single transaction when preparing the presentencing report ("PSR"). The probation officer complied with this instruction, listing 324.53 kilograms (715.46 pounds) as the amount of marijuana attributable to Infante.4 The PSR, applying the 2001 edition of the U.S. Sentencing Guidelines Manual, recommended a base offense level of twenty-six. See U.S. Sentencing Guidelines Manual § 2D1.1(a)(3)(c)(7) (2001).5 The PSR also recommended an upward adjustment of two levels for obstruction of justice because Infante became a fugitive from justice after he was convicted. See U.S.S.G. § 3C1.1. The PSR gave Infante four criminal history points, putting him in a criminal history category of three. The PSR noted that the total recommended period of incarceration under the applicable Guidelines for an offense level of twenty-eight and a criminal history category of three was 97 to 121 months. As to each of the three counts, the district court sentenced Infante to 109 months of imprisonment, followed by five years of supervised release, the sentences on all counts to run concurrently.

Infante now appeals his conviction and sentence. He raises seven issues on appeal. First, Infante argues that the government presented insufficient evidence to convict him. Second, he asserts that his conviction should be reversed because the government failed to disclose that Castellon had been ordered to undergo a psychological evaluation to determine if he was competent to stand trial in a separate, but related, criminal case against him (for trafficking drugs on June 29, 2000 and for his involvement in the drug conspiracy). Third, Infante claims that the district court erred in denying his motion for a new trial based on newly acquired evidence that Castellon suffers from memory problems. Fourth, he claims that the district court erred by admitting evidence that he received traffic tickets for failure to change the registration on a vehicle he was driving to Mexico. Fifth, Infante asserts that the district court improperly commented on the evidence in a written response to a jury note. Sixth, he argues that he was denied effective assistance of counsel because his attorney labored under a conflict of interest. Seventh, he argues that the district court erred in enhancing his sentence for obstruction of justice. We address each of these arguments in turn.

II. DISCUSSION
A. Sufficiency of the Evidence

Infante asserts that the evidence presented at his trial was insufficient to sustain his conviction.6 This court reviews a...

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