                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                  F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                                  March 17, 2006
                        FOR THE FIFTH CIRCUIT
                        _____________________                 Charles R. Fulbruge III
                                                                      Clerk
                             No. 04-10665
                        _____________________

UNITED STATES OF AMERICA,
                                                    Plaintiff - Appellee,

                                 versus

ARTURO HERRERA,

                                           Defendant - Appellant.
__________________________________________________________________

           Appeal from the United States District Court
                for the Northern District of Texas
                      USDC No. 3:00-CV-2578-P
_________________________________________________________________

Before JOLLY, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     This   appeal   arises   from   the   denial   of   Arturo   Herrera’s

(“Herrera”) motion for post-conviction relief under 28 U.S.C. §

2255.    Herrera was convicted for his involvement in a large-scale

drug-trafficking conspiracy run by the de la Torre family.                 We

affirmed his conviction.      United States v. Robles, No. 98-10110

(5th Cir. Aug. 26, 1999) (unpublished table decision).              In this

habeas appeal he seeks to set aside his convictions.          He contends

first that his counsel was ineffective for failing to move for a

judgment of acquittal at the close of evidence because the evidence

was insufficient to support his convictions.         Second, he contends

     *
       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this opinion should not be published and is not precedent except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.
that had trial counsel not interfered with his right to testify, he

would have been able to give testimony tending to show reasonable

doubt as to his guilt.

     We   turn   to   briefly   discuss   the   facts   underlying   the

convictions that he seeks to set aside.           Miguel de la Torre

(“Miguel”) headed a marijuana trafficking organization based in

Dallas.   The organization obtained marijuana imported from Mexico

and distributed it.    In March 1997, Miguel became concerned that he

was under police surveillance, and he contacted Herrera. According

to the evidence, Miguel told Herrera that he was dealing in

marijuana and that he thought the police were investigating him, a

fear that he asked Herrera to confirm.      Herrera agreed to perform

a record search to determine whether the police were following

Miguel.    To facilitate his request, Miguel gave Herrera some

relevant personal information needed to perform such a search.

     Herrera reported back to both Miguel and Miguel’s sister that

the police were investigating Miguel’s neighborhood and people with

whom he did business, and that one of those people was “snitching.”

Herrera also told Miguel that he knew four narcotics officers to

whom he could pay $3000 a month to protect Miguel.          Miguel gave

Herrera $3000 to pay off the officers for protection for the first

month. There was no evidence to show that Herrera actually paid or

attempted to pay any officers.

     Furthermore, Officer Joseph Emmett testified that a couple of

times a week, Herrera would call him, give him names and birthdays,

                                   2
and ask him to check his police computer for outstanding warrants.

Officer Emmett refused to perform any searches, but he said that

Herrera continued asking him to perform searches through the spring

of 1997.

     On August 28, 1997, Herrera was indicted on one count of

conspiring to import, distribute, and possess with intent to

distribute marijuana, in violation of 21 U.S.C. § 846; three counts

of use of a communication device to facilitate a drug-trafficking

crime, in violation of 21 U.S.C. § 843(b); one count of money

laundering, in violation of 18 U.S.C. § 1956; and one count of

accessory   after   the   fact   to   possession   with   the   intent   to

distribute marijuana, in violation of 18 U.S.C. § 3.

     In October 1997, Herrera and four co-defendants were tried to

a jury, with Domingo Garcia representing Herrera as trial counsel.

At the close of the prosecution’s case-in-chief, Garcia moved for

a judgment of acquittal.         Herrera did not testify during the

defense’s case-in-chief.     In this respect, the following exchange

occurred:

            MR. GARCIA: .... I have gone at great length
            discussing with Mr. Herrera his right to
            testify and to be cross-examined if he chose
            to testify as well as his right to invoke his
            Fifth Amendment rights to not testify. And he
            understands that that can’t be held against
            him.

                 After discussion, Mr. Herrera has decided
            not to testify today, and that is his
            indication. That’s why he did not testify.

            THE COURT:    And Mr. Herrera, I’ll ask you,

                                      3
          sir, do you agree with what your attorney just
          stated?

          DEFENDANT HERRERA:     Yes, sir, I just stated.

At the close of the evidence, Garcia failed to renew the motion for

a judgment of acquittal.        The jury convicted Herrera on the

conspiracy, communication facility, and money laundering counts,

and acquitted him on the accessory after the fact charge.                    On

January 21, 1998, the district court sentenced Herrera to 120

months of imprisonment on the conspiracy count, 48 months on the

communication   facility   counts,       and   120   months   on    the   money

laundering   count,   to   be   served     concurrently,      for    a    total

incarceration term of 120 months.

     Herrera appealed his conviction to this Court. Herrera raised

several issues as bases for reversal, including that the evidence

was insufficient to support his conviction.            On August 26, 1999,

this Court affirmed Herrera’s conviction.            In its review of the

sufficiency of the evidence, the Court undertook review only for

plain error, due to Garcia’s failure to renew the motion for a

judgment of acquittal at the close of evidence.

     Herrera filed this Motion to Vacate pursuant to 28 U.S.C. §

2255 on November 11, 2000.      On May 25, 2004, the district court

denied the motion without holding an evidentiary hearing.                Herrera

filed a timely notice of appeal, and the district court granted a

Certificate of Appealability (“COA”) on the issue of whether trial

counsel was ineffective in failing to move for a judgment of


                                     4
acquittal at the close of the evidence.               This Court further granted

a COA on the issues of whether trial counsel was ineffective for

interfering   with        Herrera’s   right      to    testify    and   whether   the

district court erred when it denied Herrera’s § 2255 motion without

holding an evidentiary hearing.

     “Ineffective assistance of counsel is a mixed question of law

and fact, and [this Court] review[s] the district court’s grant [or

denial] of habeas relief de novo, while crediting the district

court’s express or implied findings of discrete historic fact that

are not clearly erroneous.”             United States v. Mullins, 315 F.3d

449, 453 (5th Cir. 2002); see also Sayre v. Anderson, 238 F.3d 631,

634-35 (5th Cir. 2001).           To prove an ineffective assistance of

counsel   claim,      a     defendant     must      show    (1)     “that   counsel’s

performance     was       deficient[,]”       and     (2)   “that    the    deficient

performance prejudiced the defense.” Strickland v. Washington, 466

U.S. 668, 687 (1984). The second prong requires that the defendant

prove that a reasonable probability exists that, but for counsel’s

errors, the factfinder would have had a reasonable doubt regarding

guilt and that the errors were “‘so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable.’”

Mullins, 315 F.3d at 456 (5th Cir. 2002) (quoting Strickland, 466

U.S. at 687).

     We find that Herrera has not shown that he was prejudiced by

trial counsel’s failure to move for a judgment of acquittal at the



                                          5
close of the evidence.

       Examining the conspiracy charge, the communication facility

charges, and the aiding and abetting charges under a sufficiency of

the evidence standard, sufficient evidence was presented to show

that   Herrera    knowingly     and    voluntarily       participated     in    the

conspiracy.      Herrera knew that Miguel was a drug dealer, offered

police   protection    to   Miguel,    offered     to    provide   Miguel      with

information, counseled Miguel on how to bring a co-conspirator back

into the country, questioned Officer Emmett, and clearly benefitted

from the continuance of the conspiracy, as he could continue to

receive money from Miguel only if the conspiracy continued.                    This

evidence is      sufficient    to   allow   the   jury    to   infer    Herrera’s

participation in the conspiracy.            See, e.g., United States v.

Tenorio, 360 F.3d 491 (5th Cir. 2004); United States v. Booker, 334

F.3d 406 (5th Cir. 2003).

       We likewise find the evidence supporting Herrera’s money

laundering conviction sufficient to support the jury verdict.                   The

record reflects testimony that Miguel had no means of generating

any    significant    income    from    anything     other     than    his     drug

organization and the jury could reasonably conclude that Herrera

did not know of any other means for Miguel to generate real income.

Thus the jury could reasonably infer that the $3000 consisted of

illegal proceeds, and that this fact was evident to Herrera.

Furthermore, it was reasonable for the jury to infer that the drug

proceeds affected interstate commerce. See United States v. Gallo,

                                        6
927 F.2d 815, 822-23 (5th Cir. 1991).      For the same reasons cited

in finding that the jury could have made a reasonable inference

regarding participation in the drug conspiracy on Herrera’s part,

the jury could have made a reasonable inference that Herrera

participated in the financial transaction with the intent to

promote the drug organization.

      We are unpersuaded that Herrera’s counsel rendered ineffective

assistance of counsel by impermissibly interfering with Herrera’s

right    to   testify.    Given   the   circumstances   and   Herrera’s

background, Herrera gave a knowing and voluntary waiver of such

right.    Herrera is educated, fluent in English, and a former legal

assistant.     His answer to the court’s colloquy asking whether he

understood and waived that right was clear enough to demonstrate a

knowing and voluntary waiver.      In sum, the record reflects that

Herrera knew what he was doing when he involved himself in the drug

conspiracy and when he waived the right to testify.

      In making the determinations stated above, we hold that the

district court did not abuse its discretion in failing to hold an

evidentiary hearing.      The decision to deny a request for an

evidentiary hearing on a § 2255 motion is reviewed for abuse of

discretion.     United States v. Bartholomew, 974 F.2d 39, 41 (5th

Cir. 1992).      “A motion brought under [] § 2255 can be denied

without a hearing only if the motion, files, and records of the

case conclusively show that the prisoner is entitled to no relief.”

Id.     Here, we see no issue that a hearing would elucidate.      The

                                   7
sufficiency of the evidence is clear and we are fully satisfied

that Herrera was well aware of his right to testify and that he

knowingly waived that right.

     For the foregoing reasons, the district court’s denial of §

2255 relief is

                                                       AFFIRMED.




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