     Case: 18-50112      Document: 00515391784         Page: 1    Date Filed: 04/22/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                      No. 18-50112                           April 22, 2020
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk


              Plaintiff - Appellee

v.

REYMUNDO VILLARREAL-ARELIS, also known as Mundo, also known as
Raymundo Villarreal, also known as Reymundo Villarreal, also known as
Reymundo Arelis-Villarreal,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:16-CR-254-3


Before WIENER, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM:*
       Appellant Reymundo Villarreal-Arelis appeals from the district court’s
final judgment, arguing that his trial lawyer did not effectively represent him
as a result of a conflict of interest in violation of the Sixth Amendment; the
prosecutor’s closing rebuttal argument at trial improperly shifted the burden
of proof to Appellant in violation of the Fifth Amendment; and the district court


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-50112
imposed limitations on cross-examination in one instance, which denied
Appellant the right to properly confront a witness in violation of the Sixth
Amendment. We DECLINE to resolve Appellant’s ineffective-assistance-of-
counsel claim on direct appeal and, otherwise, AFFIRM.
                                      BACKGROUND
       Appellant was charged with two counts, respectively, conspiracy to
possess with intent to distribute cocaine and conspiracy to launder monetary
instruments.       The indictment charged fifteen other individuals and five
corporate defendants with various drug and money-laundering offenses.
       Underlying the charges were allegations that Appellant, members of his
family, and others—known as “Los Piojos”—transported and smuggled cocaine
into the United States from Mexico and then distributed the illicit drug. Los
Piojos moved both their own drugs and the drugs of others, including the Gulf
Cartel. The Gulf Cartel, in turn, hired former Mexican Special Forces soldiers
to protect their drugs and drug smuggling routes.                      These soldiers were
collectively known as “Los Zetas.” The government contended that Appellant
and other Los Piojos members laundered drug proceeds through, in part, the
buying and selling of racehorses.
       After Appellant’s attorney Guy L. Womack entered his notice of
appearance, the government advised him that his prior representation of a
possible government witness—Fernando Garcia-Solis—presented a potential
conflict of interest. 1 Subsequently, Womack moved for a hearing pursuant to
Federal Rule of Criminal Procedure 44(c) to inquire into the possible conflict of
interest.


       1  Womack represented Garcia-Solis in connection with his trial and conviction for
conspiracy to launder money in United States v. Solis-Garcia, No. 1:12-cr-00210-SS-7 (W.D.
Tex.). The parties refer to the trial in Solis-Garcia as the “Austin trial,” and so do we. Garcia-
Solis’s conviction and sentence were affirmed in United States v. Cessa, 785 F.3d 165, 187,
189 (5th Cir. 2015).
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                                 No. 18-50112
      The district court discussed the conflict at a hearing and then, later, at
a status conference. The district court concluded that Appellant waived any
conflict. At the hearing, Magistrate Judge Pamela A. Mathy explained to
Appellant that Womack’s representation of him presented a possible conflict of
interest.   Nonetheless, Appellant told the district court that he wanted
Womack to represent him regardless of any conflict.            The government
subsequently filed an advisory explaining that Womack’s former client—
Garcia-Solis—could benefit from testifying and included a sealed ex parte
declaration setting forth how Garcia-Solis’s testimony would inculpate
Appellant. In response, Appellant proposed walling off Womack through an
independent attorney who would handle all aspects of Garcia-Solis’s testimony.
      At the status conference, District Court Judge Xavier Rodriguez
explained to Appellant that the potential conflict might affect Womack’s ability
to vigorously cross-examine the witness and discussed hiring an independent
lawyer to cross-examine Garcia-Solis. Appellant told the district court four
times that he understood that a potential conflict existed and that he wanted
Womack to represent him anyway.            The district court determined that
Appellant “understands the potential for a conflict, waives that conflict,
knowingly waives the conflict; by demeanor and his words, he fully
understands what is going on, and so I will allow the continued representation
by Mr. Womack.”
      After Appellant rejected the government’s final plea offer, the
government moved for an additional hearing regarding the possible conflict of
interest. The government argued that the conflict had become actual and also
required Garcia-Solis to waive the alleged conflict of interest after independent
counsel had been appointed to inform Garcia-Solis of the alleged conflict.
Later, the government moved to disqualify Womack. The government argued
that—upon further consideration—waivers and appointment of independent
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                                  No. 18-50112
counsel would not suffice to resolve the alleged conflict and suggested that
Womack’s continued representation might violate Texas Disciplinary Rules of
Professional Conduct. Appellant responded that he waived the conflict and
decided not to plead guilty after reviewing all relevant discovery and receiving
multiple briefings from the government about the government’s proof.
      Ultimately,    Magistrate    Judge   Henry    J.     Bemporad     appointed
independent counsel to consult with Garcia-Solis. Garcia-Solis declined to
waive any conflict that Womack’s representation of Appellant posed. In his
report and recommendation to the district court on the government’s motion
for an additional hearing and motion to disqualify Womack, Judge Bemporad
stated that the possible violation of ethical rules did not require Womack’s
disqualification, the conflict would not become an actual conflict unless and
until Garcia-Solis testified at trial, and Garcia-Solis’s refusal to consent to
Womack’s representation of Appellant did not outweigh Appellant’s right to
counsel of his choosing. Judge Bemporad recommended that the government’s
motions be denied. It does not appear that the district court adopted this
recommendation outright, but the district court orally denied the government’s
motion for a new hearing, effectively denying the motion to disqualify Womack.
The district court further required Appellant to hire independent counsel to
cross-examine Garcia-Solis should he testify at Appellant’s trial. Appellant
ultimately hired John A. Convery as independent counsel. 2           Nonetheless,
Garcia-Solis never testified.
      After a four-day jury trial, Appellant was found guilty on both counts.
Relevant to this appeal are two incidents from the trial: First, the prosecutor’s
rebuttal argument, which followed Appellant’s closing argument, in which the



      2  Appellant argues that Convery was also impermissibly conflicted: Convery
represented Denis Winn, one of Appellant’s codefendants.
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                                  No. 18-50112
prosecutor said that there was “no evidence” of any method other than drug
trafficking by which Appellant could have accounted for certain expenditures.
Second, the district court’s limitation on Appellant’s cross-examination of
Jesus Enrique Rejon-Aguilar in one instance. 3
      The district court sentenced Appellant to 240 months’ imprisonment on
each count, to run concurrently, and issued a judgment of forfeiture in the
amount of approximately $4.9 million. Appellant timely filed a notice of appeal
directly from the district court’s final judgment.
                           STANDARD OF REVIEW
      Each issue involves a different standard of review. First, “[a]s a general
rule, Sixth Amendment claims of ineffective assistance of counsel cannot be
litigated on direct appeal, unless they were adequately raised in the district
court.”   United States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995).
“Nevertheless, this court may consider a claim regarding competency of trial
counsel if the record provides sufficient detail about the attorney’s conduct to
allow the court to make a determination of the merits of the claim.” United
States v. Chavez-Valencia, 116 F.3d 127, 133 (5th Cir. 1997) (collecting cases),
superseded by rule on other grounds as stated in United States v. Vasquez, 899
F.3d 363, 372 (5th Cir. 2018).
      Second, the Fifth Amendment forbids a prosecutor “from commenting
directly or indirectly on a defendant’s failure to testify or produce evidence.”
United States v. Romero-Medrano, 899 F.3d 356, 361 (5th Cir. 2018) (internal
quotation marks and citation omitted). More generally, the Fifth Amendment
forbids a prosecutor from commenting directly or indirectly on a defendant’s
silence. Id.; see also Griffin v. California, 380 U.S. 609, 615 (1965); United


      3 Rejon-Aguilar is a former Los Zetas member who spent about three months on a
ranch controlled by Appellant’s family, where Rejon-Aguilar met Appellant.

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                                 No. 18-50112
States v. McMillan, 600 F.3d 434, 452 (5th Cir. 2010). To determine whether
a Fifth Amendment violation occurred, the court considers (1) whether the
prosecutor made an impermissible remark and (2) whether the impermissible
remark casts serious doubt on the correctness of the jury’s verdict. United
States v. Murra, 879 F.3d 669, 682–84 (5th Cir. 2018). The court reviews the
first prong de novo and the second prong for abuse of discretion. United States
v. Bolton, 908 F.3d 75, 93 (5th Cir. 2018).
      Third, Sixth Amendment confrontation claims are generally reviewed de
novo. United States v. Skelton, 514 F.3d 433, 438 (5th Cir. 2008). However,
when a defendant has not asserted such a claim below, the court reviews for
plain error. United States v. Acosta, 475 F.3d 677, 680 (5th Cir. 2007). A
defendant’s Sixth Amendment confrontation right is satisfied where the
defendant is allowed sufficient opportunity to test a witness’ perceptions,
memory, and credibility. Davis v. Alaska, 415 U.S. 308, 315–16 (1974). To
show a confrontation-right violation, Appellant must establish that “[a]
reasonable jury might have received a significantly different impression of [the
witness’s] credibility had [defense] counsel been permitted to pursue his
proposed line of cross-examination.” Skelton, 514 F.3d at 439–40 (quoting
Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986)). “Once a court determines
that a defendant’s rights under the Confrontation Clause were violated, then
it must determine whether the error was harmless beyond a reasonable doubt.”
United States v. Jiminez, 464 F.3d 555, 562 (5th Cir. 2006).
                                 DISCUSSION
      First, Appellant’s ineffective-assistance-of-counsel claim is unavailing on
direct appeal. Appellant failed to raise the claim below, and the record is
insufficiently developed to allow the court to determine the issue on the




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                                      No. 18-50112
merits. 4 Accordingly, Appellant cannot litigate the issue in this appeal. See
Chavez-Valencia, 116 F.3d at 133.            Appellant remains free to pursue his
ineffective-assistance-of-counsel claim in accordance with 28 U.S.C. § 2255.
See United States v. Wallace, 32 F.3d 921, 930 (5th Cir. 1994); cf. United States
v. Salado, 339 F.3d 285, 291–92 (5th Cir. 2003) (remanding the case for an
“after-the-fact” hearing under Federal Rule of Criminal Procedure 44(c) to
determine whether there was an actual conflict of interest); FED. R. CRIM. P.
44(c) (requiring that a court promptly inquire about “the propriety of joint
representation” when, among other things, “two or more defendants have been
charged jointly under Rule 8(b) or have been joined for trial under Rule 13,”
situations not present here) (emphases added).
       Second, Appellant’s Fifth Amendment claim is unavailing. Appellant
has not shown that the prosecutor made an impermissible remark—the first of
two necessary prongs to make out a Fifth Amendment violation. See Murra,
879 F.3d at 682–84. Under the first prong, the court considers “(1) whether
the prosecutor’s manifest intent was to comment on the defendant’s silence or
(2) whether the character of the remark was such that the jury would naturally
and necessarily construe it as a comment on the defendant’s silence.” Rhoades
v. Davis, 852 F.3d 422, 432–33 (5th Cir. 2017).
       Here, in his closing rebuttal argument, the prosecutor stated that
Appellant and members of his family spent millions of dollars in connection
with, among other things, the purchase of horses and two properties. The
prosecutor stated:




       4Appellant effectively conceded at oral argument the government’s position: that the
record is not sufficiently developed regarding the ineffective-assistance-of-counsel claim.
While Appellant ostensibly argued that the record is sufficiently developed for the court to
determine the issue on direct appeal, he also represented that, among other things, it is
unknown whether Garcia-Solis shared relevant confidential information with Womack.
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                                       No. 18-50112
      There is no evidence of any other method by which the defendant
      could have accounted for those type of expenditures. There is no
      source of money other than the drug trafficking, and that’s the
      evidence that you have here today—
Appellant’s counsel objected, stating, “There is no burden on the defense to
explain any expenditures or to bring in any expenditures.” The court overruled
the objection, stating, “The jury has already been instructed on that. You may
continue.” The prosecutor then stated:
      The evidence that has been presented to you shows where the
      source of the money came from, ladies and gentlemen. I ask you
      to rely on the evidence that has been presented here in court over
      the last three or four days.
These rebuttal remarks appeared to address Appellant’s closing argument, in
which Appellant’s counsel argued that there was no corroborating evidence
linking Appellant to cash, properties, or cars in connection with the charges
brought against Appellant. 5 Appellant’s counsel also argued that horseracing
could be highly profitable.
      Appellant argues that the prosecutor “intended to convey to the jury that
Appellant did not produce any evidence to disprove the Government’s
evidence” when the prosecutor stated that “[t]here is no evidence of any other
method by which the defendant could have accounted for [certain]
expenditures.” Appellant does not argue that the character of the remark was
such that the jury would naturally and necessarily construe it as a comment




      5   During the closing argument, Appellant’s counsel stated:
      You know for a fact there is not one fingerprint of Reymundo Villarreal, no DNA, not
      one phone call, none. No text messages, not a single e-mail. No one found drugs on
      him. No one found weapons on him or in his home. No forensic or scientific evidence
      or physical evidence. No piles of cash, no fancy house, no fancy car, no concealed
      compartment in his truck. Even his vehicle is financed. Look at all of the evidence
      and do what is right.
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                                 No. 18-50112
on the defendant’s silence.     Accordingly, we consider only whether the
prosecutor’s manifest intent was to comment on the defendant’s silence.
      Appellant bears the burden of proving the prosecutor’s intent. United
States v. Laury, 985 F.2d 1293, 1303 (5th Cir. 1993). The court views the
prosecutor’s remarks in the context of the trial. Id.; see also United States v.
Wharton, 320 F.3d 526, 538 (5th Cir. 2003). “If there is an equally plausible
explanation for the remark, the prosecutor’s intent is not manifest.” United
States v. Green, 324 F.3d 375, 382 (5th Cir. 2003) (internal quotation marks
and citation omitted). A remark that “no evidence” supports a fact in dispute
is not necessarily improper. See Romero-Medrano, 899 F.3d at 362 (concluding,
in a case involving distribution of child pornography, that a prosecutor’s
statement that “[t]here is no evidence as to why [the defendant’s file-sharing
settings] were changed” was an “argument[] regarding the reasonable
inferences that [the jury] could draw from the evidence” instead of a comment
that the jury would “naturally and necessarily construe” as one on the
defendant’s silence). This is particularly true where a prosecutor’s contested
remarks were made in response to defense arguments, as here. See, e.g.,
United States v. Stephens, 571 F.3d 401, 408 (5th Cir. 2009) (concluding that
prosecutor’s remark that defendant had power to subpoena witnesses was not
improper because defense counsel had referred to un-subpoenaed witnesses);
United States v. Palmer, 37 F.3d 1080, 1086 (5th Cir. 1994) (“Rather than an
impermissible shift of the burden of proof, these comments were a response to
defense counsel’s argument.”). Specifically, the prosecutor’s contested rebuttal
remark followed and appeared to address Appellant’s closing argument, in
which Appellant’s counsel argued that there was no corroborating evidence
linking Appellant to cash, properties, or cars in connection with the charges
brought against him and that horseracing could be profitable. Indeed, in his
rebuttal argument, the prosecutor referred to “the evidence that you have here
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                                 No. 18-50112
today,” and “the evidence that has been presented here in court over the last
three or four days,” to argue that “[t]he [presented] evidence . . . shows where
the source of the money [for Appellant’s expenditures] came from[, i.e., drug
trafficking.]” Given this context, Appellant has not shown that the prosecutor’s
manifest intent was to comment on the defendant’s silence when the
prosecutor stated that there “is no evidence of any other method by which the
defendant could have accounted for [Appellant’s] expenditures.” Cf. Murra,
879 F.3d at 682–84 (concluding that prosecutor’s reference to defendant’s
choice not to testify evidenced a manifest intent to comment on silence).
Accordingly, Appellant has not shown a Fifth Amendment violation.
      Third, Appellant’s arguments that the district court’s imposition of
limitations on cross-examination in one instance denied Appellant the right to
properly confront Rejon-Aguilar in violation of the Sixth Amendment are
unavailing.
      Appellant did not object to the district court’s actions with respect to the
confrontation-right issue he raises. Thus, we proceed under plain error review.
See Acosta, 475 F.3d at 680. Appellant has not shown any error. See United
States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (stating that the
first requirement for reversing a trial court under plain error review is “an
error or defect—some sort of deviation from a legal rule—that has not been
intentionally relinquished or abandoned”) (quoting Puckett v. United States,
556 U.S. 129, 135 (2009)) (brackets omitted).
      In his direct testimony, Rejon-Aguilar stated that, as a member of Los
Zetas, he engaged in kidnapping, torture and murder. He stated that he was
ordered to murder about twenty people and that he ordered the murder of
about ten other people. On cross-examination, the following exchange took
place between Appellant’s counsel and Rejon-Aguilar:


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                                         No. 18-50112
         Q:      Among the people that you killed, of these 20 people or so
                 you personally killed, some were women and children?
         A:      No, sir.
         Q:      They were women?
         A.      No, sir.
         Referring to the Austin trial, Appellant continued:
         Q:      Do you remember testifying in Austin and said that you did
                 kill women?
         A:      No, sir.
         Q:      If I were to show you your transcript from that trial, do you
                 think you would recognize your words?
         A.      Yes. If I said it, yes.
         Appellant’s counsel then asked Rejon-Aguilar questions about other
matters, specifically, Rejon-Aguilar’s arrest in Mexico, statements he made on
Mexican television about killing U.S. law enforcement agents, and his
testimony on those topics in the Austin trial. The government objected once to
the form of impeachment, and then to relevance.                        Afterward, Appellant’s
counsel returned to the subject of the murders:
         Q:      With regards to the murders that you committed in Mexico,
                 you testified that you killed men and that some women were
                 killed? And some women were killed?
         A.      No, sir.
Appellant’s counsel then asked the district court if he could show Rejon-Aguilar
the Austin trial transcript 6:


6   Rejon-Aguilar’s Austin trial testimony stated, in relevant part:
         Q:      . . . [B]efore these people were murdered, were they tortured [sic] you
                 were involved with?
         A:      Before the agents were killed? I don’t understand.
         Q:      No. I’m talking about the other 30 or more people.
         A:      Some.
         Q:      And were you physically present when they were being tortured?
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                                   No. 18-50112
      Mr. Womack:          Your Honor, again, if I can show him my
                           transcript. This is the same transcript we were
                           talking about earlier. And I will turn to page 82,
                           and I will direct your attention to lines 5 through
                           13. If you will read those to him.
      [Prosecutor]:        Judge, I’m going to make the same objection we
                           made earlier.
      The Court:           That is improper impeachment. Next question.
      [] Mr. Womack:       Having had your testimony read to you here in
                           court, does it refresh your recollection of what
                           you said in that trial in Austin, Texas?
      [Prosecutor]:        Judge, I don’t think his recollection needs to be
                           refreshed as to the subject matter of—
      Mr. Womack:          He is denying saying it, Your Honor.
      The Court:           No. It is consistent, Counsel. That is sustained.
                           Next line of questions.
      Appellant established through Rejon-Aguilar’s cross-examination,
among other things, that Rejon-Aguilar made false statements on Mexican
television, kept $2 to $3 million in illegal proceeds, was never charged with
murder in Mexico or the United States, and was testifying in the hope that his
sentence would be reduced.            Given this cross-examination testimony,
Appellant has not shown that “a reasonable jury might have received a
significantly different impression of [Rejon-Aguilar’s] credibility had [defense]
counsel been permitted to pursue his proposed line of cross-examination.” Van
Arsdall, 475 U.S. at 680.




      A:    That’s correct.
      Q:    Both women and children—women and men?
      A:    No. All men.
      Q:    Were some women killed?
      A:    Yes.
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                                       No. 18-50112
       Accordingly, Appellant has failed to show a confrontation-right
violation. 7
                                      CONCLUSION
       For the foregoing reasons, we DECLINE to resolve Appellant’s
ineffective-assistance-of-counsel claim on direct appeal and, otherwise,
AFFIRM.




       7  The government addressed a second confrontation-right issue involving the district
court’s limitation of Appellant’s cross-examination of Rejon-Aguilar regarding the factual
basis of a guilty plea that Rejon-Aguilar had previously entered. However, Appellant never
raised this issue and only mentioned the testimony regarding the guilty plea in his opening
brief’s statement of facts. United States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000) (“It
has long been the rule in this circuit that any issues not briefed on appeal are waived.”).
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