                    IN THE UNITED STATES COURT OF APPEALS
                            FOR THE FIFTH CIRCUIT



                                    No. 97-40761
                                  Summary Calendar


        UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

             versus

        RICARDO RIVERA,

                                                   Defendant-Appellant.


             Appeal from the United States District Court
                  for the Southern District of Texas
                         USDC No. M-96-CR-75-2


                                   July 16, 1999

Before GARWOOD, HIGGINBOTHAM and WIENER, Circuit Judges.

PER CURIAM:*

        Ricardo Rivera appeals his conditional guilty-plea conviction

for conspiracy to possess marijuana with intent to distribute.

Rivera     argues     that   he    did   not   voluntarily   consent   to   the

warrantless search of his home and that he had not validly waived

his right to conflict-free counsel.

        Rivera and co-defendants Simon Sandoval, Roby Sandoval, and

George Garcia were charged in a two-count indictment.             Rivera and


    *
     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opinion should not be published and is not precedent except under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.
the two Sandovals were represented by the same retained counsel,

attorney Zimmerman of Dallas. All defendants pleaded not guilty.

A motion to suppress evidence was filed by attorney Zimmerman on

behalf of Rivera and the Sandovals and by attorney Alvarez (of

McAllen) on behalf of Garcia.            After evidentiary hearings, the

district court wholly denied the motion to suppress. Subsequently,

Garcia, who was out on bond, was killed.           Thereafter, Rivera and

Simon Sandoval changed their pleas from not guilty to guilty to

count one pursuant to identical plea agreements calling for the

government   to   dismiss   count   two    and   recommend   a   three-level

reduction for acceptance of responsibility and a sentence at the

low end of the sentencing guidelines range.         At the rearraignment,

the district court stated its understanding that Rivera’s plea (and

Simon’s) reserved the right to appeal only the denial of the motion

to suppress and requested defense counsel to put that in writing in

compliance with Fed. R. Crim. P. 11(a)(2) so all would know just

what was reserved for appeal.       Defense counsel agreed to do so and

later in the rearraignment hearing a handwritten document signed by

Rivera and Simon was filed stating “we reserve the right to appeal

the Court’s ruling on our motion to Suppress the Evidence under

Rule 11(a)(2).” The government consented to and the district court

approved Rivera’s (and Simon’s) guilty plea with, in the court’s

words, “them reserving their right to appeal, if they so desire,

the Court’s ruling on the motion to suppress.”           On the same day,

the district court, pursuant to the government’s motion, dismissed

without prejudice the indictment as to Roby Sandoval.             Rivera was


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subsequently sentenced to sixty months’ imprisonment, followed by

four years’ supervised release, on count one, the minimum sentence

under    the   guidelines,        and     count    two   was     dismissed.     After

sentencing,     Zimmerman        ceased    representing        Rivera,   who   had   no

further funds to pay him.           Rivera filed below a motion stating “I

want to appeal the Motion to Suppress and Sentence, but I cannot

afford a lawyer” (on this appeal no complaint is made as to

Rivera’s sentence).          The district court appointed the public

defender to represent Rivera on appeal.

                                            I.

     We have reviewed the record and the briefs of the parties and

hold that the district court did not clearly err in finding that

Rivera had voluntarily consented to the search of his home. United

States v. Rivas, 99 F.3d 170, 175-76 (5th Cir. 1996).

     The government’s evidence reflected that Rivera gave both

verbal and written consent to search his home.                    A video tape taken

by an officer of Rivera’s giving of his consent was put in evidence

by the government and reflects nothing suggestive of coercion,

deception, or lack of understanding.                   The consent form signed by

Rivera clearly recites “I understand that I have the right to

refuse to consent to the search described above and to refuse to

sign this form” and that “no promises, threats, force, or physical

or mental coercion of any kind whatsoever have been used against me

to get me to consent to the search described above or to sign this

form.”   Rivera in his testimony admits that the video reflects his

statement      that   he   was    signing        the   consent    form   voluntarily.


                                            3
Rivera’s     testimony    (given    entirely     in    English      without    an

interpreter present) supports the conclusion that he had the

capacity to read and understand the consent form, and there is no

contrary evidence.       The officers testified no physical or verbal

threats were made to induce Rivera’s consent. Their testimony also

reflected that no guns were drawn or pointed at Rivera when he gave

his consent, and that Rivera was read his Miranda rights twice

before giving his verbal and written consent.              The government’s

evidence   clearly   sufficed      to    meet   its   burden   of    adequately

supporting a finding that Rivera’s consent was voluntarily given.

And, the district court was not required to, and expressly did not,

credit the suppression hearing testimony of Rivera, his wife and

children, and friend relied on to show that the consent was not

voluntary.    See, e.g., United States v. Garza, 118 F.3d 278, 283

(5th Cir. 1997), cert. denied, 118 S.Ct. 699 (1998) (“We will not

second guess the district court’s factual findings as to the

credibility of witnesses”); United States v. Broussard, 80 F.3d

1025, 1036 (5th Cir. 1996) (“The district court was not required to

believe [the defendant’s] testimony or proffered evidence at the

suppression hearing.”).

                                        II.

     At Rivera’s initial appearance on April 16, the magistrate

judge conducted a hearing under Fed. R. Crim. P. 44(c) concerning

Zimmerman’s joint representation of Rivera and the Sandovals.                 The

magistrate judge initially ascertained from Zimmerman that he had

gone over with Rivera and the Sandovals “the potential conflict


                                         4
situation here” as well as the waiver of conflicts affidavit form

Rivera later signed.    Rivera and the Sandovals were then fully

advised in open court by the magistrate judge of the many ways in

which such joint representation could involve an existing conflict

of interest on the part of the attorney or in which such a conflict

could later arise to the potential detriment of Rivera and/or the

Sandovals, and the magistrate judge likewise advised of the right

of Rivera (and the Sandovals) “to be represented by an attorney who

represents you and only you” and to select another attorney.     No

complaint is made as to the adequacy and accuracy of this advice,

which Rivera and the Sandovals, under questioning by the magistrate

judge, expressly stated they understood. The magistrate judge then

asked Rivera whether “after having gone over this situation with

you, you still wish to have Mr. Zimmerman represent you,” to which

Rivera replied “Yes, sir.”    The same questions were separately

asked each of the Sandovals, who each gave the same response.    The

magistrate judge stated that “I would recommend that you strongly

consider the possibility of having separate counsel” and “it’s

almost always a better idea to have separate counsel.”   Zimmerman

was asked by the magistrate judge if he saw any conflict, and the

following transpired:

          “Mr. Zimmerman: I believe up to some point that’s
     true, Your Honor. If there is a possibility that at some
     point that a conflict will develop and if it does, we’ll
     have another attorney to substitute in.      But at this
     point, I don’t see a problem with representation of more
     than one person.
          The Court: Okay. And, as an officer of the court,
     we’ll just rely on you to bring that up promptly if that
     situation should arise.
          And, each of you should be aware as well that it may

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     be a situation in which if a conflict does arise Mr.
     Zimmerman may not be able to represent any of you at that
     point because of the circumstance in which he has
     obtained information confidentially from each of you or
     presumably will if he has not already. And so you’ll be
     sure to understand that also.
          Mr. Martinez, as far as the Government is concerned,
     what is the Government’s position as far as permitting
     Mr. Zimmerman to proceed on behalf of these three
     defendants?
          Mr. Martinez: Your Honor, we have no opposition. I
     think that being an officer of the court, Mr. Zimmerman,
     hopefully, would notify the Court immediately if he
     sensed or came close to a conflict in the case.
          The Court: All right. I will also advise each of
     the defendants that I would recommend to you that you
     discuss with another attorney whether or not it’s
     advisable for you to proceed having the same attorney.
     Again, that’s up to you. But I think that would be a
     good idea.
          You may have the right to have an appointed attorney
     to discuss that situation with, and if you are unable to
     afford to hire a separate attorney or to pay for a
     consultation of that nature.
          We do need to – I’m going to give you a date by
     April 26 that I’ll indicate that you should consult with
     separate counsel if you’re going to do that. You should
     do that right away. And the reason that I’m giving you
     a date is that once we get further along, if you were to
     change attorneys, that’s going to delay the case and the
     ability to proceed forward with it.      And so for that
     reason, I’m directing each of you by – that’s a week from
     Friday to – if you’re going to consult with another
     attorney or to advise the Court that you have changed
     your mind and you want to employ separate counsel that
     you advise the Court by that date if you are going to
     take advantage of that.”

     The magistrate judge again ascertained that Rivera and the

Sandovals understood “what I’ve explained here today” and then

again confirmed that each defendant had gone over the waiver

affidavit with Zimmerman and these were signed and filed.        The

magistrate judge then allowed the joint representation, stating

“It’s not apparent at this point that there is an actual conflict

and it does appear that each of these defendants does want to have


                                6
Mr. Zimmerman represent them.”

     On appeal no complaint is made of what was orally stated—or

omitted—at the April 16 hearing.        And, we interpret the magistrate

judge’s remarks there to mean, and to be understood by those

present, that there was then no present actual conflict of interest

and that, although Rivera and the Sandovals had only until April 26

to seek to be relieved of dual representation per se, nevertheless

if an actual conflict were to later develop it would be brought to

the court’s attention and appropriate action taken.            Rivera does

not argue to the contrary.      Instead, the sole basis of his second

point on appeal is a complaint of the following language in the

paragraph   of   the   waiver   affidavit   just   preceding    its   final

sentence, viz: “I will not be permitted to select a different

attorney in the future if any possible conflicts explained to me

(or others not now foreseen) should occur” and “I may discuss this

problem with the Court of my desire to change attorneys no later

than April 26, 1996, the Court will consider that I do not wish to

change my decision and I give up my right to other counsel.”1

     1
      The paragraph as a whole reads as follows:

          “Despite all these facts and information, I choose
     to be represented by my attorney Barry Louis Zimmerman.
     I understand that I will be given time to select another
     attorney should I choose to do so, but I do not now
     choose to obtain any other attorney. I understand that
     I am waiving my right to select a different attorney, and
     that I will not be permitted to select a different
     attorney in the future if any possible conflicts
     explained to me (or others not now foreseen) should
     occur. The reason I must now make this decision is so
     that the trial will not be delayed and so that a
     severance can be avoided. I have also been informed and
     I understand that I may discuss this problem with the

                                    7
     While we do not condone this language, we conclude that no

ground for reversal is established.

     This complaint is raised for the first time on appeal.2              The

plea of guilty does not reserve the right to appeal on this or any

related basis.   That would ordinarily constitute a waiver of all

nonjurisdictional defects in the proceedings below.                 See Rule

11(a)(2); United States v. Bell, 966 F.2d 914 (5th Cir. 1992).

Such a waiver “includes all claims of ineffective assistance of

counsel [citations] except insofar as the alleged ineffectiveness

relates to the voluntariness of the giving of the guilty plea.”

Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983).                A single

attorney’s   representation   in   the   same    case   of    two   or   more

defendants charged with the same offense does not of itself alone

mean that there was in fact an actual conflict of interest or that

the dual representation had any adverse effect.         See United States

v. Rico, 51 F.3d 495, 508-9 (5th Cir. 1995); United States v.

Benavidez, 664 F.2d 1255, 1259-62 (5th Cir. 1982).           Any failure to

properly comply with Rule 44(c) is not reversible error unless it

is shown “that defendant has been denied the Sixth Amendment right

that the rule was designed to protect.”         Benavidez at 1259.       Here

Rivera does not allege, and nothing in the record suggests, that


     Court of my desire to change attorneys no later than
     April 26, 1996, the Court will consider that I do not
     wish to change my decision and I give up my right to
     other counsel.”
     2
      There is no suggestion in the record that at any time after
the April 16 hearing any one ever sought to complain about or bring
to the court’s attention anything suggestive of a conflict of
interest or the performance of counsel.

                                   8
there ever was an actual conflict of interest on Zimmerman’s part

or that his representation of the Sandovals as well as Rivera in

any way affected, adversely or otherwise, either any aspect of

Zimmerman’s performance as Rivera’s counsel or Rivera’s guilty

plea.   And, there is nothing to suggest, and Rivera does not

assert, that his guilty plea was other than fully informed and

voluntary.

     The judgment of the district court is AFFIRMED.




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