United States v. Villarreal-Arelis, 042220 FED5, 18-50112

Docket Nº:18-50112
Opinion Judge:PER CURIAM.
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee v. REYMUNDO VILLARREAL-ARELIS, also known as Mundo, also known as Raymundo Villarreal, also known as Reymundo Villarreal, also known as Reymundo Arelis-Villarreal, Defendant - Appellant
Judge Panel:Before WIENER, GRAVES, and WILLETT, Circuit Judges.
Case Date:April 22, 2020
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff - Appellee

v.

REYMUNDO VILLARREAL-ARELIS, also known as Mundo, also known as Raymundo Villarreal, also known as Reymundo Villarreal, also known as Reymundo Arelis-Villarreal, Defendant - Appellant

No. 18-50112

United States Court of Appeals, Fifth Circuit

April 22, 2020

Appeal from the United States District Court for the Western District of Texas USDC No. 5:16-CR-254-3

Before WIENER, GRAVES, and WILLETT, Circuit Judges.

PER CURIAM. [*]

Appellant Reymundo Villarreal-Arelis appeals from the district court's final judgment, arguing that his trial lawyer did not effectively represent him as a result of a conflict of interest in violation of the Sixth Amendment; the prosecutor's closing rebuttal argument at trial improperly shifted the burden of proof to Appellant in violation of the Fifth Amendment; and the district court imposed limitations on cross-examination in one instance, which denied Appellant the right to properly confront a witness in violation of the Sixth Amendment. We DECLINE to resolve Appellant's ineffective-assistance-of-counsel claim on direct appeal and, otherwise, AFFIRM.

BACKGROUND

Appellant was charged with two counts, respectively, conspiracy to possess with intent to distribute cocaine and conspiracy to launder monetary instruments. The indictment charged fifteen other individuals and five corporate defendants with various drug and money-laundering offenses.

Underlying the charges were allegations that Appellant, members of his family, and others-known as "Los Piojos"-transported and smuggled cocaine into the United States from Mexico and then distributed the illicit drug. Los Piojos moved both their own drugs and the drugs of others, including the Gulf Cartel. The Gulf Cartel, in turn, hired former Mexican Special Forces soldiers to protect their drugs and drug smuggling routes. These soldiers were collectively known as "Los Zetas." The government contended that Appellant and other Los Piojos members laundered drug proceeds through, in part, the buying and selling of racehorses.

After Appellant's attorney Guy L. Womack entered his notice of appearance, the government advised him that his prior representation of a possible government witness-Fernando Garcia-Solis-presented a potential conflict of interest.1 Subsequently, Womack moved for a hearing pursuant to Federal Rule of Criminal Procedure 44(c) to inquire into the possible conflict of interest.

The district court discussed the conflict at a hearing and then, later, at a status conference. The district court concluded that Appellant waived any conflict. At the hearing, Magistrate Judge Pamela A. Mathy explained to Appellant that Womack's representation of him presented a possible conflict of interest. Nonetheless, Appellant told the district court that he wanted Womack to represent him regardless of any conflict. The government subsequently filed an advisory explaining that Womack's former client- Garcia-Solis-could benefit from testifying and included a sealed ex parte declaration setting forth how Garcia-Solis's testimony would inculpate Appellant. In response, Appellant proposed walling off Womack through an independent attorney who would handle all aspects of Garcia-Solis's testimony.

At the status conference, District Court Judge Xavier Rodriguez explained to Appellant that the potential conflict might affect Womack's ability to vigorously cross-examine the witness and discussed hiring an independent lawyer to cross-examine Garcia-Solis. Appellant told the district court four times that he understood that a potential conflict existed and that he wanted Womack to represent him anyway. The district court determined that Appellant "understands the potential for a conflict, waives that conflict, knowingly waives the conflict; by demeanor and his words, he fully understands what is going on, and so I will allow the continued representation by Mr. Womack."

After Appellant rejected the government's final plea offer, the government moved for an additional hearing regarding the possible conflict of interest. The government argued that the conflict had become actual and also required Garcia-Solis to waive the alleged conflict of interest after independent counsel had been appointed to inform Garcia-Solis of the alleged conflict. Later, the government moved to disqualify Womack. The government argued that-upon further consideration-waivers and appointment of independent counsel would not suffice to resolve the alleged conflict and suggested that Womack's continued representation might violate Texas Disciplinary Rules of Professional Conduct. Appellant responded that he waived the conflict and decided not to plead guilty after reviewing all relevant discovery and receiving multiple briefings from the government about the government's proof.

Ultimately, Magistrate Judge Henry J. Bemporad appointed independent counsel to consult with Garcia-Solis. Garcia-Solis declined to waive any conflict that Womack's representation of Appellant posed. In his report and recommendation to the district court on the government's motion for an additional hearing and motion to disqualify Womack, Judge Bemporad stated that the possible violation of ethical rules did not require Womack's disqualification, the conflict would not become an actual conflict unless and until Garcia-Solis testified at trial, and Garcia-Solis's refusal to consent to Womack's representation of Appellant did not outweigh Appellant's right to counsel of his choosing. Judge Bemporad recommended that the government's motions be denied. It does not appear that the district court adopted this recommendation outright, but the district court orally denied the government's motion for a new hearing, effectively denying the motion to disqualify Womack. The district court further required Appellant to hire independent counsel to cross-examine Garcia-Solis should he testify at Appellant's trial. Appellant ultimately hired John A. Convery as independent...

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