United States v. Rivera

Procedural entryThis page is a short order in United States v. Rivera. Read the opinion of the Court — 265 F.3d 310 →

Court of Appeals for the Fifth Circuit·Decided July 20, 1999·No. 97-40761·Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-40761 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RICARDO RIVERA,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas USDC No. M-96-CR-75-2

July 16, 1999

Before GARWOOD, HIGGINBOTHAM and WIENER, Circuit Judges.

PER CURIAM:*

Ricardo Rivera appeals his conditional guilty-plea conviction

for conspiracy to possess marijuana with intent to distribute.

Rivera argues that he did not voluntarily consent to the

warrantless search of his home and that he had not validly waived

his right to conflict-free counsel.

Rivera and co-defendants Simon Sandoval, Roby Sandoval, and

George Garcia were charged in a two-count indictment. Rivera and

* Pursuant to 5TH CIR. R. 47.5 the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. the two Sandovals were represented by the same retained counsel,

attorney Zimmerman of Dallas. All defendants pleaded not guilty.

A motion to suppress evidence was filed by attorney Zimmerman on

behalf of Rivera and the Sandovals and by attorney Alvarez (of

McAllen) on behalf of Garcia. After evidentiary hearings, the

district court wholly denied the motion to suppress. Subsequently,

Garcia, who was out on bond, was killed. Thereafter, Rivera and

Simon Sandoval changed their pleas from not guilty to guilty to

count one pursuant to identical plea agreements calling for the

government to dismiss count two and recommend a three-level

reduction for acceptance of responsibility and a sentence at the

low end of the sentencing guidelines range. At the rearraignment,

the district court stated its understanding that Rivera’s plea (and

Simon’s) reserved the right to appeal only the denial of the motion

to suppress and requested defense counsel to put that in writing in

compliance with Fed. R. Crim. P. 11(a)(2) so all would know just

what was reserved for appeal. Defense counsel agreed to do so and

later in the rearraignment hearing a handwritten document signed by

Rivera and Simon was filed stating “we reserve the right to appeal

the Court’s ruling on our motion to Suppress the Evidence under

Rule 11(a)(2).” The government consented to and the district court

approved Rivera’s (and Simon’s) guilty plea with, in the court’s

words, “them reserving their right to appeal, if they so desire,

the Court’s ruling on the motion to suppress.” On the same day,

the district court, pursuant to the government’s motion, dismissed

without prejudice the indictment as to Roby Sandoval. Rivera was

2 subsequently sentenced to sixty months’ imprisonment, followed by

four years’ supervised release, on count one, the minimum sentence

under the guidelines, and count two was dismissed. After

sentencing, Zimmerman ceased representing Rivera, who had no

further funds to pay him. Rivera filed below a motion stating “I

want to appeal the Motion to Suppress and Sentence, but I cannot

afford a lawyer” (on this appeal no complaint is made as to

Rivera’s sentence). The district court appointed the public

defender to represent Rivera on appeal.

We have reviewed the record and the briefs of the parties and

hold that the district court did not clearly err in finding that

Rivera had voluntarily consented to the search of his home. United

States v. Rivas, 99 F.3d 170, 175-76 (5th Cir. 1996).

The government’s evidence reflected that Rivera gave both

verbal and written consent to search his home. A video tape taken

by an officer of Rivera’s giving of his consent was put in evidence

by the government and reflects nothing suggestive of coercion,

deception, or lack of understanding. The consent form signed by

Rivera clearly recites “I understand that I have the right to

refuse to consent to the search described above and to refuse to

sign this form” and that “no promises, threats, force, or physical

or mental coercion of any kind whatsoever have been used against me

to get me to consent to the search described above or to sign this

form.” Rivera in his testimony admits that the video reflects his

statement that he was signing the consent form voluntarily.

3 Rivera’s testimony (given entirely in English without an

interpreter present) supports the conclusion that he had the

capacity to read and understand the consent form, and there is no

contrary evidence. The officers testified no physical or verbal

threats were made to induce Rivera’s consent. Their testimony also

reflected that no guns were drawn or pointed at Rivera when he gave

his consent, and that Rivera was read his Miranda rights twice

before giving his verbal and written consent. The government’s

evidence clearly sufficed to meet its burden of adequately

supporting a finding that Rivera’s consent was voluntarily given.

And, the district court was not required to, and expressly did not,

credit the suppression hearing testimony of Rivera, his wife and

children, and friend relied on to show that the consent was not

voluntary. See, e.g., United States v. Garza, 118 F.3d 278, 283

(5th Cir. 1997), cert. denied, 118 S.Ct. 699 (1998) (“We will not

second guess the district court’s factual findings as to the

credibility of witnesses”); United States v. Broussard, 80 F.3d

1025, 1036 (5th Cir. 1996) (“The district court was not required to

believe [the defendant’s] testimony or proffered evidence at the

suppression hearing.”).

II.

At Rivera’s initial appearance on April 16, the magistrate

judge conducted a hearing under Fed. R. Crim. P. 44(c) concerning

Zimmerman’s joint representation of Rivera and the Sandovals. The

magistrate judge initially ascertained from Zimmerman that he had

gone over with Rivera and the Sandovals “the potential conflict

4 situation here” as well as the waiver of conflicts affidavit form

Rivera later signed. Rivera and the Sandovals were then fully

advised in open court by the magistrate judge of the many ways in

which such joint representation could involve an existing conflict

of interest on the part of the attorney or in which such a conflict

could later arise to the potential detriment of Rivera and/or the

Sandovals, and the magistrate judge likewise advised of the right

of Rivera (and the Sandovals) “to be represented by an attorney who

represents you and only you” and to select another attorney. No

complaint is made as to the adequacy and accuracy of this advice,

which Rivera and the Sandovals, under questioning by the magistrate

judge, expressly stated they understood. The magistrate judge then

asked Rivera whether “after having gone over this situation with

you, you still wish to have Mr. Zimmerman represent you,” to which

Rivera replied “Yes, sir.” The same questions were separately

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