     Case: 13-51062      Document: 00512985770         Page: 1    Date Filed: 03/30/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-51062
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          March 30, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

FRANCISCO FRANK APODACA, JR.,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:10-CR-2284-1


Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
       A grand jury indicted Francisco Frank Apodaca, Jr., on seven counts
related to his role in a scheme to pay bribes and kickbacks to government
officials in El Paso, Texas, in order to secure favorable treatment and contracts
for his employer, Access Healthsource Incorporated, which provided healthcare
services to local governments.           Larry Medina, who had been a County
Commissioner in El Paso, was charged in three of the counts. Both eventually


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-51062

pleaded guilty to a single count—Apodaca to conspiring to commit
racketeering, and Medina to conspiring to commit mail fraud.             Apodaca
received a 96-month prison sentence to be followed by three years of supervised
release and was ordered to pay a total of $6,819,723.87 in restitution, including
$433,103.11 to El Paso County. Apodaca now appeals, contending that one of
the two attorneys who represented him in the district court, Ray Velarde,
operated under a conflict of interest because he had previously represented
Medina during the same proceedings. Apodaca also argues that the district
court erred in not recognizing the conflict and holding a hearing pursuant to
United States v. Garcia, 517 F.2d 272, 278 (5th Cir. 1975), abrogated on other
grounds by Flanagan v. United States, 465 U.S. 259, 263 & n.2 (1984).
      Apodaca, through his co-counsel, Ken Del Valle, could have raised the
issue in a timely manner in the district court but failed to do so. See United
States v. Rodriguez, 602 F.3d 346, 351 (5th Cir. 2010). Indeed, mere days after
Velarde was appointed to represent Apodaca, Del Valle asked the district court
to consider whether Velarde’s representation of a defendant in a separate
proceeding resulted in a conflict of interest. Apodaca, though, waited until
after the judgment was entered and the notice of appeal was filed to bring the
issue of Velarde’s potential conflict of interest based on his prior representation
of Medina to the attention of the district court in a motion for a new trial, but
by that time, the district court lacked jurisdiction to consider it. See United
States v. Green, 882 F.2d 999, 1001 (5th Cir. 1989). Apodaca has forfeited any
error, and so our review is for plain error only. See Rodriguez, 602 F.3d at 351.
      The Sixth Amendment guarantee of the right to counsel includes the
right to legal representation free of conflicts of interest. United States v.
Hernandez, 690 F.3d 613, 618 (5th Cir. 2012). A conflict exists where “counsel
places himself in a position conducive to divided loyalties.” United States v.



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Garcia-Jasso, 472 F.3d 239, 243 (5th Cir. 2006) (internal quotation marks and
citation omitted). To establish that counsel labored under a conflict of interest,
a defendant must show an actual conflict that adversely affected the
representation; it is insufficient to show a hypothetical, speculative, or
potential conflict. Hernandez, 690 F.3d at 619; Garcia-Jasso, 472 F.3d at 243.
An attorney’s performance was adversely affected by a conflict of interest
where counsel could have pursued a plausible alternative defense strategy or
tactic but chose not to do so because of the conflict. Perillo v. Johnson, 205
F.3d 775, 781 (5th Cir. 2000). A conflict is not automatically created where an
attorney engages in joint representation. Hernandez, 690 F.3d at 619. An
actual conflict exists only where the attorney must compromise his duty of
loyalty or zealous advocacy to the defendant by choosing between or blending
the competing interests of the defendant and the former client. Id.
      Velarde represented Medina for only four months at the beginning of the
proceedings and terminated his representation of Medina nearly 15 months
before he was appointed to represent Apodaca. Further, Apodaca does not
allege that Velarde learned any confidential information that was helpful to
Medina but harmful to Apodaca. These factors weigh against the existence of
a conflict of interest. See id; Perillo, 205 F.3d at 798-99.
      In an attempt to show an actual conflict, Apodaca points to the
Government’s disclosure that it sought to use the same audio recordings
against both Apodaca and Medina, positing that the recordings were of a
conversation between Apodaca and Medina and that Medina knew that this
conversation was being recorded. Apodaca suggests that Velarde’s knowledge
that he would have to cross-examine Medina affected the decision that Apodaca
would plead guilty and not proceed to trial. It is unclear when Velarde first
learned of these recordings. In any event, Apodaca provides no evidence as to



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their content or support for his contention that Medina and Apodaca were
directly involved with one another. The Government’s disclosure document
describes the recordings as “consensual” and explains that they were
“regarding” Medina but does not say who the parties to the conversation were.
Thus, Apodaca’s theory that Medina recorded a conversation with him is
speculative at best. Even more speculative is his assertion that the contents
of the recordings pitted his interests against Medina’s and caused Velarde to
choose between them such that Velarde’s judgment about whether Apodaca
should proceed to trial was compromised. As we have emphasized, a defendant
cannot use speculation and inferences that are unsupported by the record to
establish an actual conflict of interest. Garcia-Jasso, 472 F.3d at 245.
      Finally, Apodaca asserts that Velarde’s decision not to object to the
calculation of the restitution that Apodaca owed to El Paso County was the
result of his divided loyalties. In Apodaca’s view, if Velarde had objected, he
would have been compelled to emphasize Medina’s culpability over Apodaca’s.
Here again, Apodaca provides no support for his position that Velarde’s
decision was affected by his prior representation of Medina.         In the plea
agreement, Apodaca agreed that he would pay restitution in the amount
established by the probation officer. In the presentence report (PSR), the
probation officer noted that Medina had been ordered to pay restitution to the
county in the amount of his salary and offset Apodaca’s restitution by the
amount that Medina had been ordered to pay.           Apodaca puts forward no
specific argument that Velarde could have raised that would have reduced
Apodaca’s restitution liability but increased Medina’s even further. Indeed,
the district court emphasized that the restitution calculated in the PSR was
only a fraction of the true losses suffered by the victims and did not account for




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losses sustained by families, which easily amounted to tens of millions of
dollars.
      Apodaca asks us to make inferences outside of the record that Velarde
was forced to decide between representing Apodaca zealously and advancing
the competing interests of Medina, but he points to no evidence of an actual
conflict. See Garcia-Jasso, 472 F.3d at 244. He presents no plausible defense
strategy or tactic that was rejected by Velarde. See Perillo, 205 F.3d at 781.
His speculation and unsupported inferences do not establish an actual conflict.
See Garcia-Jasso, 472 F.3d at 245. Apodaca has shown no error, plain or
otherwise. Because Apodaca has not established that Velarde had an actual
conflict of interest, he was not entitled to a Garcia hearing. See Hernandez,
690 F.3d at 620.
      Accordingly, the district court’s judgment is AFFIRMED.




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