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Click here for the full text of this decision FACTS:Ricardo Macias Infante and several others were with multiple counts of a drug smuggling and distribution conspiracy. One of the counts against Infante was a conspiracy count alleging that Infante had helped smuggle in more than 1,000 kilograms of marijuana. At his trial, the government presented evidence that on Jan. 23, 2000, two individuals, Zubia-Salgado and Polanco-Pando were stopped at a border checkpoint near Marfa. They were driving a pick-up truck, and nearly 370 pounds of marijuana were found in a hidden compartment. The government also presented evidence that Juan Gallegos-Natera was stopped near Alpine on Feb. 26. He was driving a pick-up truck, and a little more than 290 pounds of marijuana were found in a hidden compartment. Evidence also showed that Kristy Navarette and Lionel Campos were stopped while driving a Ford Bronco at the Marfa-area checkpoint. More than 96 pounds of marijuana were found in a hidden compartment. Navarette admitted that she had transported drugs over the border in the past, and that she had used both a Ford Bronco and a blue 1995 Chevrolet Suburban. She said that Campos and two of Infante’s co-conspirators were members of a drug trafficking ring. The evidence showed that on May 10, Benjamin Belloc was stopped at the checkpoint near Marfa. He was driving a pick-up truck, and 285 pounds of marijuana were found in a hidden compartment. Belloc admitted that he had used a Ford truck on previous drug runs and also a blue Suburban. Neither Zubia-Salgado, Polanco-Pando, Gallegos-Natera, Navarette, Campos or Belloc knew Infante The evidence further showed that Benigno Castellon was stopped on June 29 driving a Suburban with 715 pounds of marijuana in a secret compartment. He said that he worked in Infante’s auto-mechanic shop and had traveled to Mexico with Infante, where he met some of the other co-defendants. Castellon said that he delivered the first load of marijuana he transported to Infante’s house, and that Infante directed him to go back to Mexico, pick up a Suburban and drive in back to Texas with more marijuana. It was during this second run that Castellon was stopped, and although the Suburban was painted white, there was a coat of blue paint underneath. The government also presented evidence that Barbara Rivera-Hernandez was stopped near the Mexico border in Presidio on July 14. There were 341 pounds of marijuana in the floor board of the pick-up truck. She did not know Infante, either. The jury found Infante guilty of all three counts, though on the only conspiracy count alleged against him, the jury found he had helped transport between 100 and 1,000 kilograms of marijuana and limited Infante’s involvement to the June 29 incident with Castellon. The probation officer who prepared the presentencing report (PSR) thus listed the amount of marijuana at 324.53 kilograms (715.46 pounds). This gave Infante a base level of 26 under the 2001 sentencing guidelines. The PSR gave Infante a two-level upward adjustment for obstruction of justice, since he had been a fugitive, to give a level of 28. Because points were added for Infante’s prior criminal history, he was classified as a category three. The range of punishment for a level 28, category three defendant was 97 months to 121 months. Infante was sentenced to 109 months on each count, to run concurrently. Among the issues Infante raises on appeal is the argument that he received ineffective assistance of counsel because his attorney had a conflict of interest. The conflict, Infante argues, is that the attorney, Anthony Foster, also represented Gallegos-Natera and Rivera-Hernandez in their own criminal cases. HOLDING:Vacated and remanded. The court initially reviews the sufficiency of the evidence. The court refers to Castellon’s testimony, which was corroborated by telephone toll records, and finds the evidence sufficient. The story Infante gave as to why calls between him, Castellon and two other co-conspirators showed up on the phone records was not believed by the jury. Infante argues on appeal that he was denied evidence in the government’s possession, a violation of Brady v. Maryland, 37 U.S. 83 (1963). Specifically, he claims that in Castellon’s own trial for drug trafficking, he filed a motion requesting a psychiatric evaluation of himself, but that Infante was not made aware of that request. The court finds that, even if it assumes Infante met the factors of a Brady claim, Infante’s argument still fails, as the reason Infante did not receive the report cannot have anything to do with his own lack of reasonable diligence. Here, Castellon’s case file was a matter of public record, which Infante could have had access to. “[Infante] argues that due diligence does not require a criminal defendant or his attorney to obtain and review the court file on the government’s star witness. We cannot agree, especially when the file pertains to an alleged co-conspirator and the charges against the co-conspirator are so closely related to the conspiracy with which the defendant is charged.” The court also rejects Infante’s argument that the results of Castellon’s psychiatric evaluation which revealed that he suffered from memory problems constituted newly discovered evidence warranting a new trial. The district court did not abuse its discretion in denying Infante’s motion, because Castellon himself admitted on the stand that he had difficulty remembering things, and that Infante was able to cross-examine Castellon on that matter. Infante complains of the admission of evidence of prior traffic tickets he received while driving the Suburban. Because Infante did not object at trial, the court reviews the district court’s decision for plain error. The court acknowledges that the probative value of the evidence was outweighed by the prejudicial effect of its admission, but then holds that even if the evidence was wrongly admitted, it did not seriously affect the fairness, integrity or public reputation of the judicial proceedings. Turning, then, to Foster’s possible conflict of interest, the court notes that Foster never tried to dispute the testimony of Gallegos-Natera or Rivera-Hernandez, nor did he try to contest their credibility. Foster only cross-examined each one about their knowledge of Infante. The court applies the standard laid out in Cuyler v. Sullivan, 446 U.S. 335 (1980), which said that an appellate court must ask whether there was an actual conflict of interest, as opposed to a potential or hypothetic conflict, and whether the actual conflict adversely affected counsel’s representation. The court concludes that the district court erred in concluding that Foster was not laboring under a conflict of interest. Although Foster denied having learned any relevant confidential information from his former clients while representing them, the subject matter of the representations was nearly identical. Moreover, Foster’s representation of the two witnesses had not been unambiguously terminated. Even if Foster’s representation of the witnesses was actually completed prior to Infante’s trial, the representations were relatively close in time to his representation of Infante. After finding the existence of an actual conflict, the court says the record is not developed enough for the to state whether the conflict adversely affected Infante. Thus, the court remands to the district court for a determination of the impact Foster’s conflict had on Infante’s defense. In closing, the court upholds the calculation of the sentence imposed on Infante. OPINION:King, C.J.; King, C.J., Higginbotham and Davis, JJ.

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