U.S. v. Medina

• Decision Date: 23 November 1998
• Docket Number: No. 97-50663,97-50663
• Citation: 161 F.3d 867
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marina MEDINA; Marco Antonio Martinez; Javier Alberto Delgado, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 867

161 F.3d 867

UNITED STATES of America, Plaintiff-Appellee, v. Marina MEDINA; Marco Antonio Martinez; Javier Alberto Delgado, Defendants-Appellants.

No. 97-50663.

United States Court of Appeals Fifth Circuit.

Nov. 23, 1998.

Joseph H. Gay, Jr., U.S. Atty., San Antonio, TX, Mark Randolph Stelmach, Asst. U.S. Atty., Austin, TX, for Plaintiff-Appellee.

William Hance Ibbotson, Austin, TX, Lucien B. Campbell, San Antonio, TX, for Marina Medina.

Joseph Sib Abraham, Jr., El Paso, TX, for Marco Antonio Martinez.

Robert Ramos, El Paso, TX, for Javier Alberto Delgado.

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

Before POLITZ, Chief Judge, and EMILIO M. GARZA and STEWART, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Marina Medina ("Medina"), Marco Antonio Martinez and Javier Alberto Delgado appeal their convictions and sentences. Finding no reversible error, we affirm.

I

This prosecution concerned the smuggling of cocaine and marijuana into the United States through ports of entry at El Paso, Texas. Each individual smuggling operation (called a "crossing") began in Juarez, Mexico, with the loading of hundreds of kilograms of cocaine or marijuana into the trunk of a car. After receiving a pager message from a scout that identified the traffic lane posing the least obstacle to entry, a man drove the vehicle to the United States Customs Service checkpoint. He was told what the car contained before departing and knew to speed off if diverted to a Customs Service inspection station. After arriving in El Paso, he left the car at a designated location and was given a ride back to Juarez.

United States law enforcement officials learned about the "crossings" and began to intercept many of them. Believing that customs officers were less likely to detain cars occupied by a male and a female, the smugglers responded by recruiting two sisters, Marina and Patty Medina, to ride in vehicles making "crossings." They also became more daring. For example, on one occasion, a convoy of seven automobiles carrying cocaine and marijuana proceeded into the United States across the Stanton Street Bridge, which runs only from El Paso to Juarez ("Stanton Street Bridge episode").

Law enforcement officials eventually dismantled the smuggling organization. Their success was due largely to the cooperation of Carlo Gonzalez, who was arrested hours after the Stanton Street Bridge episode while driving a car carrying 370.14 kilograms of cocaine.

An indictment was returned against some of the smugglers. It alleged that Medina, Martinez, Delgado and others had conspired to possess cocaine and marijuana with intent to distribute, in violation of 21 U.S.C. § 846, and had conspired to import cocaine and marijuana into the United States, in violation of 21 U.S.C. § 963. Based on their participation in the Stanton Street Bridge episode, Delgado and others were charged with possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and with importing cocaine into the United States, in violation of 21 U.S.C. § 952(a).

Medina, Martinez and Delgado were convicted of all charges. Following sentencing and entry of judgment, each of them timely appealed.

II

Medina challenges the denial of her attorney's motion to withdraw as violative of her Sixth Amendment right to conflict-free counsel. ¹ Federal public defender Maureen Scott represented Medina. Another federal public defender, Elizabeth Rogers, was counsel for Jose Quiroz, a Government witness. ² Scott and Rogers learned about their office's representation of Medina and Quiroz about a week before Medina's trial. On the day of this discovery, Scott and Rogers both sought to withdraw, arguing that the federal public defender's simultaneous representation of Medina and Quiroz created a conflict of interest. At a hearing on her motion, Scott said that she knew nothing about Quiroz's case. The district judge refused to allow Scott to withdraw. Rogers, however, was permitted to end her representation of Quiroz. ³

We review the denial of defense counsel's motion to withdraw based on a conflict of interest for abuse of discretion. See United States v. Wild, 92 F.3d 304, 307 (5th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 532, 136 L.Ed.2d 417 (1996). This process involves three steps. We first decide whether or not an actual conflict of interest existed. See United States v. Rico, 51 F.3d 495, 508 (5th Cir.1995). If one did, we then determine whether or not the defendant knowingly, intelligently and voluntarily waived it. ⁴ See id. If a valid waiver occurred, we finally consider whether or not the district judge should have accepted it, for a valid waiver must be rejected if allowing representation to continue undermines the judicial system's integrity. See id.

The denial of Scott's motion to withdraw was not an abuse of discretion. Relevant events show that Scott never faced an actual conflict of interest. Scott and Rogers were ignorant of the federal public defender's ongoing representation of Medina and Quiroz. ⁵ See MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.10(a) (1983) (rule on imputed disqualification: "While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from so doing by Rules 1.7, 1.8(c), 1.9 or 2.2." (emphasis added)). When they realized the situation, they immediately moved to withdraw. Cf. LaSalle Nat'l Bank v. County of Lake, 703 F.2d 252, 259 (7th Cir.1983) (upholding disqualification of entire law firm where law firm had not implemented in a timely manner institutional mechanisms to screen former attorney of client's adversary from the case). Although Scott was unable to do so, Rogers secured permission to terminate her representation. Cf. United States v. Trevino, 992 F.2d 64, 65-66 (5th Cir.1993) (finding no actual conflict where public defender began to work for defendant after prosecution of co-defendant represented by another public defender had ended). As Scott knew none of the confidences that Quiroz had exchanged with Rogers, she then was able to continue as Medina's attorney without the burden of a conflict. See United States v. Lech, 895 F.Supp. 586, 590-91 (S.D.N.Y.1995) (finding no actual conflict where public defender was ignorant of confidences Government witness had shared with his former attorney, another public defender); cf. LaSalle Nat'l Bank, 703 F.2d at 257 ("If the attorney can clearly and persuasively show that he was not privy to the confidences and secrets of [the former] client, a court will not be held to have abused its discretion in concluding that disqualification [of the attorney from representing the former client's adversary] is unnecessary...."). Therefore, the district judge did not abuse his discretion in denying Scott's motion to withdraw as Medina's counsel.

III

Martinez and Delgado assert that the denial of their motion to disqualify a juror violated their Sixth Amendment right to an impartial jury. See U.S. CONST. amend. VI. A juror sent the following note to the district judge on the last day of trial:

As I was hearing the defense attorneys I heard that two of the people att: Jefferson H.S I--[misspelled word crossed out] attened [sic] same school & graduated from Jeff in 1991 Would my presence affect me personally--or family I have no acquaintance with them

In response, the district judge and defense counsel questioned the juror. The juror explained that he had worried about retaliation when he realized that he must have attended school with Medina and recognized one of the witnesses testifying on Medina's behalf as a former classmate. However, he added that his concern had dissipated and would not affect his decision. Despite this assurance, Martinez and Delgado moved for the juror to be excused. The district judge denied the request.

We review for clear abuse of discretion a decision on whether or not to dismiss a juror for lack of impartiality. See United States v. Graves, 5 F.3d 1546, 1554 (5th Cir.1993). We find no error here. In response to inquiries by the district judge and defense counsel, the juror declared that he could be fair because he no longer feared retaliation. See id. at 1553-54 (finding no abuse of discretion in refusing to dismiss juror who, in response to questioning by the district court, stated that an attack on her husband while in a vehicle registered in her name had not affected her impartiality); cf. United States v. Ruggiero, 928 F.2d 1289, 1294-97, 1300 (2d Cir.1991) (finding no abuse of discretion in dismissal of juror who stated that his vote was motivated by fear); United States v. McAnderson, 914 F.2d 934, 943-44 (7th Cir.1990) (finding no abuse of discretion in removal of jurors who reported having received threatening telephone calls regarding the case). The district judge did not abuse his discretion in refusing to dismiss the juror.

IV

Martinez maintains that a material variance between the indictment's conspiracy counts and the evidence requires the reversal of his conspiracy convictions. At trial, the Government presented evidence connecting Martinez to approximately 600 kilograms of marijuana seized in Akron, Ohio. Martinez asserts that this evidence resulted in the Government proving two conspiracies rather than just the one alleged in the indictment, a situation that severely prejudiced him.

We analyze in two phases the contention that a variance between the indictment's charge of a single conspiracy and the evidence is material. We first decide if the evidence varied from the indictment's allegations. See United States v. Puig-Infante, 19 F.3d 929, 935-36 (5th Cir.1994). When we find a variance between the indictment's allegations and the evidence, we also consider whether or not the variance prejudiced the defendant's substantial rights. See id. at 936. If we find that the variance prejudiced the defendant's substantial...