UNITED STATES of America, Plaintiff-Appellee v. Juan LOZANO, Defendant-Appellant.
No. 03-40404.
United States Court of Appeals, Fifth Circuit.
Decided Dec. 20, 2005.
Eaton admitted the facts underlying the two-level increase in his offense level for possession of a destructive device when he pleaded guilty to possessing a destructive device as stated in the indictment and when he signed an agreed stipulation, which was admitted without objection at rearraignment, stating that he knowingly possessed a destructive device, “identified as an incendiary bomb” under
Eaton also argues that the district court erred in determining that under the Sentencing Guidelines, his sentence should be increased for his use of a firearm in connection with another felony offense. However, because this case is remanded for sentencing under Booker, this court need not address this issue. See Akpan, 407 F.3d at 377 n. 62.
VACATE SENTENCE; REMAND FOR RESENTENCING.
Tony Ray Roberts, U.S. Attorney‘s Office Southern District of Texas, McAllen, TX, Gerald H. Goldstein, Cynthia Eva Hujar Orr, Goldstein, Goldstein & Hilley, San Antonio, TX, for Defendant-Appellant.
Before JOLLY, DAVIS and JONES, Circuit Judges.
W. EUGENE DAVIS: *
In this direct criminal appeal, Lozano challenges his conviction on a number of grounds. We find no error and affirm.
I.
A number of law enforcement agencies, organized into a task force, conducted a four-year investigation of a drug organization that was transporting cocaine and marijuana from the Rio Grande Valley in Texas to other parts of the United States. The investigation revealed that Juan Lozano, residing primarily in Mexico (though apparently never observed traveling to or from Mexico), organized and operated the drug organization from as early as 1995 and employed many people to transport large quantities of drugs and to distribute them to other drug-trafficking organizations, the participants of which were separately prosecuted.
In August 2000, Lozano, along with codefendants Marivel Lozano (his wife), Rumaldo Lozano (his brother-in-law), and Ray Perez were indicted on various drug-related charges. Lozano was charged with 17 counts: Count One charged conspiracy to possess with intent to distribute over five kilograms of cocaine (Counts Four and Six through Eight charged the underlying substantive offenses); Count Two charged conspiracy to possess with intent to distribute over 1,000 kilograms of marijuana (Counts Five, Ten, and Fifteen through Eighteen charged the underlying substantive offenses); Count Three charged conspiracy to commit money-laundering (Counts Eleven through Fourteen charged the underlying substantive offenses).
Juan Lozano was tried with his co-defendants listed above. During trial, the Government offered the testimony of about 65 witnesses, some of whom had dealt directly with Lozano and others who had never heard of Lozano or spoken to him. On the fourth day of trial, Perez changed his plea to guilty and ultimately testified against Lozano. After the Government rested its case, the district court granted a motion for judgment of acquittal as to Lozano‘s wife. After a full 18-day trial, during which the court denied Lozano‘s properly preserved motions for a judgment of acquittal, the jury acquitted Lozano‘s brother-in-law of the two counts in which he was charged, but convicted Lozano on all counts.
Several months later, the district court sentenced Lozano to: life imprisonment for Counts One, Two, Four, Six, Seven, and Eight (the cocaine offenses); 40 years imprisonment for Counts Five, Ten, Fifteen, Sixteen, and Seventeen (the marijuana offenses); and 20 years imprisonment for Counts Three, Eleven, Twelve, Thirteen, and Fourteen (the money-laundering
II.
A.
Lozano argues first that the magistrate judge erred in refusing to order the Government to disclose “reports” compiled from wire taps and witness interviews during his detention hearing.
The Jencks Act requires the Government to produce any “relevant and competent reports and statements in the possession of the Government touching the events and activities as to which a Government witness has testified at the trial.” Goldberg v. United States, 425 U.S. 94, 104 (1976);
The Government argues that Lozano‘s claim is moot now that he stands convicted. That is, the granting of bail would not have affected the outcome of the trial, and Lozano has no “current cognizable interest” in the resolution of the report disclosure issue. See, e.g., Murphy v. Hunt, 455 U.S. 478, 481 (1982). In Murphy, the Eighth Circuit, in an appeal of the detention order that was decided after the defendant had been convicted, found that the defendant had been wrongfully denied bail. The Supreme Court held, however, that the claim at issue was no longer live, and that the defendant “lack[ed] a legally cognizable interest in the outcome.” Id. Murphy controls the resolution of this issue. Now that Lozano has been convicted, his claim that he was wrongfully denied Jencks Act material is no longer a live issue and does not serve as a basis for disturbing the conviction.
B.
Lozano argues next that the district court abused its discretion by disqualifying his first and second defense counsel based on conflicts of interest.
In January 2001, two days after Jose “Bobby” Flores filed a notice of appearance as Lozano‘s (first) counsel, the Government moved to disqualify Flores, alleging a conflict of interest because of Flores‘s previous representation of Lozano‘s co-defendant Perez. The magistrate judge observed that the previous drug trafficking charges had been dismissed and were incorporated into the present case as part of the overall conspiracy. Flores claimed not to have learned anything about Lozano from Perez and Lozano and Perez signed a waiver of any conflict, which the magistrate accepted and denied the Government‘s motion.
Two months later, the Government filed a sealed motion to disqualify and requested reconsideration of the conflict issue, arguing that Flores was now an unindicted co-conspirator in the case. At the conflict hearing, several FBI agents testified as to wire intercepts and surveillance that revealed connections between Flores and others in the drug conspiracy. The magistrate again advised Lozano of the potential conflict, which Lozano again waived. The magistrate concluded that it would be inappropriate to allow Flores to continue representing Lozano, citing the integrity of the judicial system and based on “appearances and potential for problems in this criminal proceeding as it goes forward,” and disqualified him in a written order dated June 11.
During a recess, Berg informed the Government that he had previously represented Flores on a motion to quash a grand jury subpoena. He also stated that he might call Flores as a witness in this case, but claimed that Pytel would examine Flores. Flores waived any attorney-client privilege he had with Berg. It was also revealed that Berg had been paid for this case directly by Flores, with the “understanding” that the money came from Lozano‘s sister. The payment was in cash, but Berg did not know how much money he had received because he “had not counted it yet” and had not filed any documents reporting the transaction. At Lozano‘s request, the court appointed Micaela Alvarez to discuss these conflicts with him.
The court reconvened on September 20 and decided that, in the light of the questionable connections between Flores and Berg, and of Pytel being able to represent Lozano with no apparent conflicts, Berg‘s potential conflicts were too great. Despite Lozano‘s desire to continue with Berg as counsel, the court deemed the conflict not waiveable and disqualified Berg.
This court reviews a district court‘s disqualification of a defense attorney for conflict of interest for abuse of discretion. United States v. Millsaps, 157 F.3d 989, 995 (5th Cir. 1998). The Sixth Amendment guarantees a defendant‘s right to effective assistance of counsel and a “correlative right to representation free from conflicts of interest.” Wood v. Georgia, 450 U.S. 261, 271 (1981).2 An actual conflict exists when “defense counsel is compelled to compromise his or her duty of loyalty or zealous advocacy to the accused by choosing between or blending the divergent or competing interests of a former or current client.” Perillo v. Johnson, 205 F.3d 775, 782 (5th Cir. 2000) (citing Strickland v. Washington, 466 U.S. 668, 692 (1984)).
Should a defendant desire to waive the conflict, the trial court must establish a knowing, voluntary waiver. United States v. Garcia, 517 F.2d 272, 274 (5th Cir. 1975). In determining the validity of a waiver, the district court is afforded “substantial latitude in refusing waivers of conflicts of interest not only if an actual conflict is demonstrated, but in cases where a potential for conflict exists which may result in an actual conflict as the trial progresses.” United States v. Vasquez, 995 F.2d 40, 42
Lozano argues that for an actual conflict claim to prevail on appeal, one‘s lawyer must have been operating under an actual conflict which adversely affected his lawyer‘s performance. The Government properly points out that the actual and/or potential conflicts of interest in this case only begin with the conflicts raised by prior representations and extend to almost every conceivable conflict of interest problem. First, the conflicted counsel potentially has privileged information unavailable to non-conflicted counsel. Moreover, certain evidence indicated that Flores was an indictable co-conspirator, and was advising other co-conspirators on how to avoid detection and prosecution. Indeed, Flores was as much a potential witness as a potential co-defendant. And Berg‘s connections to and dealings with Flores suggest that Berg‘s representation was simply a “pseudo-representation” by Flores. The fact that Flores remained involved in the case after his disqualification further tainted Berg‘s representation.
In sum, the district court properly observed the potential pitfalls during the upcoming trial and the threats to the integrity of the judicial process inherent in Flores‘s and Berg‘s continued representation of Lozano in the case. The court did not abuse its discretion in disqualifying them.
C.
Lozano argues next that the indictment does not sufficiently allege a money laundering conspiracy offense in violation of
We review de novo the issue of whether an indictment sufficiently alleges all elements of an offense. United States v. Bieganowski, 313 F.3d 264, 285 (5th Cir. 2002). The substantive offense of money laundering is set forth in
Lozano‘s argument fails for a number of reasons. First, count 3 of the indictment charged the defendants with “knowing that the transaction was designed in whole or in part to conceal and disguise the nature, location, source, ownership, and control of the proceeds of such specified unlawful activity, and that while conducting and attempting to conduct such a financial transaction, that the property involved in the financial transactions ... represented the proceeds of some form of unlawful activity in violation of
Moreover, because Lozano is charged with conspiracy to commit money laundering under
D.
Lozano argues next that the district court erred by allowing the Spanish speaking jury to hear and consider tapes of Lozano‘s conversations in Spanish. The district court admitted into evidence tapes of several conversations in which Lozano participated that were conducted in Spanish. All the jurors stated that they spoke and understood Spanish. The court informed all parties that English transcripts of the tapes would also be admitted, but only as aids—the tapes controlled in the event of a discrepancy. The court also invited the defendants to submit their own competing English transcripts. The court then admitted both the Spanish tapes and the English transcripts. The Spanish tapes were played in open court and the jurors had the English transcripts available to read as they were listening to the tapes.
Lozano argues that the district court abused its discretion when it admitted into evidence recordings that were in a language other than English. He contends that such evidence allowed the jurors to impose their own translation of colloquial expressions, particularly with respect to “Valley Spanish.” Lozano suggests that the English transcript should have been the primary source of evidence and not the Spanish tapes.
We review a district court‘s evidentiary rulings for abuse of discretion. United States v. Gutierrez-Farias, 294 F.3d 657, 661 (5th Cir. 2002). However, as in this case where the defendant failed to object at trial, we review for plain error. United States v. Krout, 66 F.3d 1420, 1434 (5th Cir. 1995), citing United States v. Olano, 507 U.S. 725 (1993). To prevail under this standard, the appellant must show an error that was plain, that affected his substantial rights and that seriously affects the fairness, integrity or public reputation of judicial proceedings.
The Jones Act,
Lozano relies upon United States v. Valencia, 957 F.2d 1189 (5th Cir. 1992), where this court affirmed the exclusion of taped conversations which took place in Spanish. That case is readily distinguishable. In Valencia, only two of the jurors spoke Spanish and both parties stipulated to the
E.
Lozano argues next that the evidence was insufficient to support his convictions for conspiracy to commit money laundering and the substantive offense. This court reviews challenges to the sufficiency of the evidence “in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Brown, 217 F.3d 247, 254 (5th Cir. 2000). “The evidence need not exclude every reasonable hypothesis of innocence, and the jury is free to choose among reasonable constructions of the evidence.” United States v. Cano-Guel, 167 F.3d 900, 904 (5th Cir. 1999). If the evidence supports equally or gives nearly equal circumstantial support to theories of guilt and innocence, this Court will reverse because, under these circumstances, the jury must necessarily entertain a reasonable doubt. See, e.g., United States v. Sanchez, 961 F.2d 1169, 1173 (5th Cir. 1992).
The elements of a conspiracy to commit money laundering are: (1) that there was an agreement between two or more persons to commit money laundering, and (2) that the defendant joined the agreement knowing its purpose and with the intent to further the illegal purpose. United States v. Meshack, 225 F.3d 556, 573 (5th Cir. 2000).
To establish the substantive offense of money laundering under
For purposes of
The Government produced substantial evidence to support Lozano‘s conviction for conspiracy to launder money. Multiple witnesses place Lozano in charge of the drug organization: Casas transported drugs, called Lozano if there was trouble with a shipment, and verified that attorney Flores was on standby to provide legal advice. Multiple phone intercepts established that proven drug traffickers had close ties to Lozano and that they purchased a trailer used to transport drugs with a large cash payment. The Government produced evidence that members of
With respect to the substantive offenses of money laundering, various witnesses testified as to the drug related financial transactions pertaining to each count. Testimony and wire intercepts established that Lozano asked certain underlings to bring him drug proceeds on February 28, 2000. (Count 11) Testimony and wire intercepts established drug related financial transactions by Lozano‘s co-conspirators on March 8 (Count 12), March 13 (Count 13) and March 22, 2002 (Count 14). See United States v. Garcia, 917 F.2d 1370, 1377 (5th Cir. 1990) (party to a conspiracy may be held responsible for a substantive offense committed by a co-conspirator even if that party has no knowledge of that particular substantive offense).
Our review of the record persuades us that the Government produced substantial evidence that would permit a rational trier of fact to find Lozano guilty of both the conspiracy and substantive money laundering counts.
F.
In Lozano‘s final assignment of error, he argues that the district court abused its discretion by interfering with his cross-examination of certain witnesses, thereby depriving him of a fair trial. Lozano‘s brief points to dozens of instances in the record where the district court interrupted his trial counsel during cross-examination of the Government‘s witnesses.4 Lozano argues that the district court‘s actions created the appearance that the district court sided with the Government and lead the jury to presume guilt. Lozano further argues that the district court‘s multiple statements to the jury explaining its impartiality were insufficient to cure the constitutional error.
This court reviews a district court‘s examination of witnesses and involvement in a trial for abuse of discretion. United States v. Martinez, 151 F.3d 384, 390 (5th Cir. 1998). The district court has wide discretion over the “tone and tempo” of a trial and may elicit information from a witnesses if he believes it would benefit the jury. United States v. Saenz, 134 F.3d 697 (5th Cir. 1998). In reviewing a claim of partiality by a district judge, we must “determine whether the judge‘s behavior was so prejudicial that it denied the [defendant] a fair, as opposed to a perfect, trial.” United States v. Williams, 809 F.2d 1072, 1086 (5th Cir. 1987). To make this determination, we must consider the district court‘s actions as a whole, considering factors such as context, frequency, and the presence of curative instructions. United States v. Lance, 853 F.2d 1177, 1182 (5th Cir. 1988).
Lozano, in his brief to this court, details literally dozens of instances where the district court questioned witnesses and made comments during Lozano‘s cross-examination of Government witnesses. Considered out of context, these numbers appear troubling; however, when we consider the fact that this trial lasted 18 days and the Gov
Turning to the content of the district court‘s actions, a thorough review of the record reveals that several of the district court‘s actions have been mischaracterized by Lozano in this appeal.5 The record also reveals that many of the interruptions were aimed at remedying the often repetitive questioning by Lozano‘s attorneys.6
Q: Now, Mr. Casas, you have told a lot of lies in your lifetime, haven‘t you?
A: Yes.
Q: You have lied to the DEA agents, right?
A: Yes.
Q: As a matter of fact, when you became an informant, you signed a contract with the Drug Enforcement Administration, correct?
A: Yes.
Q: And as part of that contract, was that you not lie, correct?
A: Yes.
Q: Yet, you lied to them, correct?
A: Yes.
Q: Further, that you were not to be engaged in any drug trafficking while you were an informant, yet, you went and ventured on your own drug business while you were an informant, correct?
A: Yes.
Q: You also lied to other drug dealers, your co-workers or employees or cohorts, correct?
A: Yes.
Q: You have asked other people to lie, such as, your wife and your mother-in-law, correct?
A: My ex-mother-in-law and my ex-wife.
Q: And you have asked them to lie when the only one that would benefit form the lie would be you, correct?
A: Yes.
Q: When I say “lie,” Mr. Casas, you instructed them, actually, to commit perjury, to commit to say—to tell a lie under oath, correct?
A: I don‘t understand. How is that?
Q: Pardon me. I‘m sorry. If they were asked to come in an testify under oath, you instructed them to lie for you, correct?
A: Yes.
Q: And your involvement, with respect to drug dealing, you have also threatened people, correct?
A: Yes.
Q: And it appears as though, Mr. Casas, that every time you have a problem, that is, you‘re caught in a crime, you decide to join forces with law enforcement against other people, correct?
A: Yes.
Q: Okay. Now, you have admitted that you have lied to DEA agents under oath, other drug dealers, asked people to lie for you and that‘s the truth, is it not?
A: Yes.
Q: You‘ve also had, for example, in your possession a driver‘s license that had your photo, yet somebody else‘s name; is that correct?
A: Yes.
Q: And you‘ve admitted to telling big lies, huge lies, correct?
THE COURT: How many times are we going to ask the same question, Mr. Pytel?
We have reviewed all of the passages in the record relied upon by Lozano in support of his claims that the district court unduly interjected itself into the trial to Lozano‘s prejudice. We conclude that the district court had solid grounds for its comments and questions as discussed above, and thus the district court‘s comments and questions did not amount to an abuse of discretion.
III.
For the reasons stated above, we conclude that Lozano‘s assignments of error are without merit. The judgment of the district court is
AFFIRMED.
Notes
Q: Has [Lozano] been involved in the drug business? Ever been involved in the drug business?
A: Not that I know of, but people have tell me.
***
THE COURT: And your testimony, you‘re also saying that you also had a conversation yourself with Mr. Lozano, or are your taking that testimony back?
THE WITNESS: Excuse me, Your Honor.
THE COURT: You said you had a conversation with Mr. Lozano about some marijuana.
THE WITNESS: Yes.
THE COURT: Or is that not true?
THE WITNESS: That is true.
THE COURT: Ok, go ahead.
R. Vol. 31 at 124-125.
Q: And it was seven months later, in March of this year that you first met with the FBI agents about your involvement?
THE COURT (to the interpreter): I don‘t think it was “the attorneys” (sic) he said. I think he meant “the FBI and law enforcement officials” is what he said. Repeat the question because this wasn‘t interpreted correctly.
R. Vol. 31 at 26.
Q: Now, what has happened to all this money that you have made, Mr. Casas, throughout the years?
A: I‘ve made investments.
Q: Such as?
A: The hotel. The shops I have in Mexico.
Q: What else?
A: I‘ve bought real estate.
Q: In the United States or in Mexico?
A: In Mexico and here.
Q: Where do you have property here?
A: Right now, I don‘t have any.
Q: So that‘s a lie?
***
MS. PROFIT (Government): Your Honor, I‘m going to object. That—
***
THE COURT: I mean, it‘s a mischaracterization to say “that‘s a lie.” He didn‘t say that he owned it right now. He said he has invested in property and so that is a mischaracterization and that‘s a proper [objection].
R. Vol. 28 at 47-48.