United States v. Samuel Lozano , 640 F. App'x 326 ( 2016 )

Case: 15-40632 Document: 00513390308 Page: 1 Date Filed: 02/22/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-40632 FILED
Summary Calendar February 22, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
SAMUEL LOZANO, also known as “SOS”,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:13-CR-241
Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
Defendant-Appellant Samuel Lozano appeals his jury trial conviction for
conspiracy to distribute and possess with intent to distribute cocaine and
marijuana. He contends that the district court (1) abused its discretion by
declining to include an instruction on multiple conspiracies in its jury charge
and (2) failed, on his counsel’s pretrial disclosure that he had previously
represented two government witnesses in unrelated criminal matters, to
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 15-40632
conduct a Garcia 1 hearing or inform him of his right to new appointed counsel
in light of his declared indigence. Finding no merit in Lozano’s arguments, we
affirm.
“A multiple conspiracy charge instructs the jury to acquit if it finds that
the defendant was not a member of the indicted conspiracy but rather was
involved in another conspiracy.” United States v. Cavin, 39 F.3d 1299, 1310
(5th Cir. 1994). Lozano asserts that a multiple-conspiracies instruction was
warranted based on the lack of evidence establishing a connection between
himself and a number of the other charged co-conspirators, as well as evidence
that other co-conspirators participated in narcotics transactions in which he
was not involved.
Unlike cases in which we have held the failure to give a multiple-
conspiracies instruction to be reversible error, however, none of Lozano’s
asserted facts indicates that his illicit operations were “in most respects
independent from” those of his co-defendants. United States v. Erwin, 793 F.2d
656, 662-63 (5th Cir. 1986). Our review of the record reveals no evidence of
either “the existence of an additional conspiracy separate and distinct from
that charged in the indictment,” United States v. Toro, 840 F.2d 1221, 1236
(5th Cir. 1988), or that Lozano “w[as] only involved in separate conspiracies
unrelated to the overall conspiracy charge in the indictment.” United States v.
Greer, 939 F.2d 1076, 1088 (5th Cir. 1991) (internal quotation marks and
citation omitted), opinion reinstated in part on reh’g, 968 F.2d 433 (5th Cir.
1992); United States v. Castaneda-Cantu, 20 F.3d 1325, 1334 (5th Cir. 1994).
We therefore hold that the district court did not abuse its discretion in
1 United States v. Garcia, 517 F.2d 272, 277-78 (5th Cir. 1975), abrogated on other
grounds by Flanagan v. United States, 465 U.S. 259 (1984).
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declining to instruct the jury on the theory of multiple conspiracies. See
Castaneda-Cantu, 20 F.3d at 1333-34; Greer, 939 F.2d at 1088.
Lozano’s second contention stems from his retained counsel’s pretrial
disclosure that he had previously represented government witnesses Galvan
and Narvaez in unrelated criminal matters. Counsel insisted that his prior
representations did not create any conflict of interest on his part and, on
questioning by the district court, Lozano twice affirmed that he was
comfortable proceeding to trial represented by counsel. Lozano also noted that,
in any event, he lacked the ability to afford replacement counsel.
Lozano does not contend that counsel was in fact laboring under a
conflict of interest, let alone one that adversely affected his performance at
trial. See Cuyler v. Sullivan, 446 U.S. 335, 348 (1980); Perillo v. Johnson, 205
F.3d 775, 781 (5th Cir. 2000). Lozano did not declare to the district court that
he was no longer able to afford to pay Mason. See 18. U.S.C. § 3006A(c).
Neither does the record reflect that Lozano requested the appointment of new
counsel. Cf. United States v. Mason, 480 F. App’x 329, 335 (5th Cir. 2012).
Rather, Lozano insists that his declaration of indigence alone sufficed to
trigger the district court’s obligation to conduct a Garcia hearing and to advise
him of his right to the appointment of conflict-free counsel. Our jurisprudence
is to the contrary, holding that trial courts have a duty to inform a defendant
of his right to new counsel and to conduct a Garcia hearing only after the
existence of a conflict of interest has been established. See United States v.
Garcia-Jasso, 472 F.3d 239, 243 (5th Cir. 2006); United States v. Greig, 967
F.2d 1018, 1022 (5th Cir. 1992). Lozano offers no reasoned basis why indigence
should be a cause for waiving the conflict-of-interest requirement. Lozano has
not shown that the district court had a duty either to inform him of his right
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to free replacement counsel or to conduct a Garcia hearing. See Garcia-Jasso,
472 F.3d at 243; Greig, 967 F.2d at 1022.
The judgment of the district court is AFFIRMED.
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