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No. 01-20855, 7/16/2003. Criminal Law Click here for the full text of this decision FACTS: This appeal arises out of a successful sting operation aimed at the Arcadio Franco Narcotics Organization of which Arcadio Franco, Carlos Salado, Noe Aguirre-Garcia and Jose Garcia-Marines were participants. During the pre-trial proceedings, Franco and Salado pleaded guilty without a plea agreement to trafficking marijuana in violation of 21 U.S.C. ��846, 841 (a)(1) and (b)(1)(B)(vii). Franco and Salado were represented by the same attorney. HOLDING: The court remands the case to the district court to conduct a Federal Rule of Civil Procedure 44(c) hearing. Although this court has previously held, in United States v. Rico, 51 F.3d 495 (5th Cir. 1995), that a magistrate judge’s warnings were sufficient to satisfy the mandates of United States v. Garcia, 517 F.2d 272 (5th Cir. 1975) and rule 44(c), this case is distinguishable from Rico. The court in Rico held, after reviewing the complete trial record, that no actual conflict of interest existed. Alternatively, the court found that there were oral and written indications of a knowing waiver of the right to conflict free counsel. Moreover, in Rico, the husband and wife codefendants who had the same counsel were the same throughout the case; the Garcia warnings were given at the defendants initial appearance, at the arraignment, and detention hearing; and each defendant signed a waiver form relinquishing their right to conflict-free counsel. In this case, the magistrate judge’s warnings were not directed at Salado and Franco, and an explicit waiver was not obtained from Salado. There is also no indication in the record that the district court was aware of the warnings given by the magistrate judge to Salado and Aguirre-Garcia. The record reveals that more than six months elapsed before Salado and Franco appeared together before the district court judge under Roberto Rivera’s joint representation. Even if the district court was aware of the warnings, “the obligation placed upon the court by Rule 44(c) is a continuing one, and thus in a particular case further inquiry may be necessary on a later occasion because of new developments suggesting a potential conflict of interest.” U.S. v. Newell, 315 F.3d 510 (5th Cir. 2002). In this case, the necessity of the warnings pertaining to Franco’s and Salado’s joint representation appears even greater as Franco was the broker of the drug deal with the INS agent. Thus, the court rejects the government’s argument that the magistrate judge’s warnings were sufficient to comply with the mandates of Garciaand rule 44(c). The court finds that the district court failed to properly conduct a hearing pursuant to Garciaand Rule 44(c). The court finds that Salado has sufficiently alleged that an actual conflict of interest existed: to wit, he points to his counsel’s failure 1. to negotiate a plea agreement for him when he did so for Franco; and 2. to request a debriefing with the government, which may have led to a downward departure for Salado if he had cooperated with the government in its case against Franco. The court notes that this court has readily determined whether an actual conflict of interest existed in cases where jointly represented codefendants proceeded to full trial on the merits due to the benefit of a full record. In this case, however, it is difficult for the court to make such a determination where Franco and Salado pleaded guilty during the pretrial proceedings. Thus, the district court’s failure to conduct the requisite Rule 44(c) and Garciahearing, combined with the sparsity of the record, mandates that the court remands the case to the district court for an “after-the fact” rule 44(c) hearing to determine whether there was an actual conflict of interest as a result of Rivera’s joint representation of Salado and Franco. If the district court finds that an actual conflict of interest existed, it should then proceed to determine whether the actual conflict adversely affected Rivera’s performance. OPINION: Stewart, J.; DeMoss and Stewart and Little, JJ.

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