United States v. Romero

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 13, 2000
• Docket: 99-31097
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-31097

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

FRANCISCO ALEXIS ROMERO, a/k/a FRANCISCO ROMERO-BARAHONA

Defendant-Appellant,

Appeal from the United States District Court for the Eastern District of Louisiana Lower Court No. 99-CR-85-2-L

November 9, 2000

Before GOODWIN,1 GARWOOD, and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:2

Francisco Romero appeals his conviction for conspiracy

and attempted possession of cocaine with intent to distribute under

21 U.S.C. §§ 841(a)(1), 846. Romero argues that there was

insufficient evidence for the jury to convict him of attempting to

possess cocaine with intent to distribute. He also argues that the

prosecutor prejudiced his trial by misstating the evidence during

closing arguments. We affirm.

1 Circuit Judge of the Ninth Circuit, sitting by designation. 2 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. BACKGROUND

This case centers on Romero’s involvement in a conspiracy

to import cocaine from Columbia. A drug trafficker in Colombia

hired government informant Fernando Cabrera-Carbajal (“Cabrera”) to

bring approximately sixteen kilograms of cocaine into New Orleans.

The trafficker told Cabrera to use the codename “Pinochet” and to

contact a drug dealer named “Mysterio” once Cabrera entered the

United States. Cabrera testified that he was supposed to sell the

drugs to Mysterio for $ 60,000.

Cabrera arrived in the United States in March 1999 and

exchanged the drugs with custom officials for dummy drugs. In a

recorded phone conversation, he spoke to Mysterio and arranged to

sell the drugs on Canal Street in downtown New Orleans.

Carlos Arturo Rivas, a prosecution witness, testified

that the voice of Mysterio belonged to Juan Santos Rodriguez.

Rivas met Rodriguez in a pool hall in Houston before the drug sale.

Rodriguez invited Rivas to gamble with him in New Orleans. Rivas

agreed.

Rodriguez, Rivas, and appellant Romero then drove to New

Orleans together in a Ford. Rivas and Romero had not met before.

Romero was driving. During the trip, Rodriguez offered Rivas $

8,000 to pick up “some stuff” from someone named Pinochet in New

2 Orleans. Rivas understood “stuff” to mean drugs. There is no

evidence that Romero took part in this conversation.

Once in New Orleans, Romero and Rodriguez dropped Rivas

off on Canal Street so Rivas could look over the pick-up location.

They agreed to meet again at a certain time.

When they met again, Romero was driving a Jaguar. Romero

and Rodriguez dropped Rivas off, then drove around local streets

while Rivas spoke with Cabrera. Because Rivas had no money,

Cabrera refused to give him the dummy drugs or get in the car.

Rivas left Cabrera and walked across a parking lot to wait for the

Jaguar, which stopped to meet him. Rivas discussed the situation

with Rodriguez, and returned to Cabrera to persuade him to hand

over the drugs. Cabrera again refused. This sequence of events

repeated itself about three times.

Finally, Cabrera told Rivas to park the car. Rivas

returned to the other side of the parking lot, waited for the

Jaguar, and spoke to Rodriguez. Romero drove into the lot and

parked. Rodriguez spoke to Rivas outside the vehicle. Romero paid

the parking attendant, and then unsuccessfully attempted to open

the trunk of the Jaguar. Cabrera approached with the dummy drugs

and placed them in the back seat of the car. Cabrera testified

that, “I asked them for my money. They said they didn’t bring any

money. Then I turned around; I left, and they stayed in the car.

The driver of the car said, ‘Quick. Quick. This is hot.’” Rivas,

3 however, testified that “[s]ome money was given to [Cabrera], but

I don’t know what amount.”

Customs Service agents captured the events on the street

and in the parking lot on video. The video shows Romero handing

something to Cabrera shortly after Cabrera deposited the drugs in

the vehicle. The very small item could not be a large sum of

money. It is unclear from the videotape whether Rodriguez ever

gave anything to Cabrera.

Immediately after Cabrera walked away, Customs Service

vehicles pulled into the parking lot. Rodriguez attempted to

escape, but agents arrested him. Romero and Rivas jumped into the

car and led agents on a high speed chase through downtown New

Orleans. Romero was driving. The chase ended when Romero and

Rodriguez abandoned the vehicle in a vacant lot. The agents first

found Rivas. Approximately forty-five minute later, they found

Romero inside a building hiding shirtless under debris. Romero’s

shirt lay outside the building.

Rivas pled guilty and testified against Romero and

Rodriguez at trial. The prosecution tried Rodriguez and Romero

together for conspiracy to import cocaine and attempted possession

with intent to distribute. Rodriguez pled guilty during trial.

In her closing arguments, the prosecutor played the video

of the transaction. She stated, “I’d ask you to look at something

that is very significant here. And what I want you to pay

4 attention to and ask yourselves, is [Romero] there by accident;

when on the tape you see that this man is the

one who pays [Cabrera] after [Cabrera] places the drugs in the

car.” The defense objected that the prosecutor was misleading the

jury. The district judge immediately instructed the jury:

Members of the jury, you’re to decide what the evidence is. And the arguments of counsel does [sic] not give any additional evidence to the case. Only you can decide, and you must decide from the evidence which the court has admitted into the record. If it squares with the argument, then you may use it. If not, then disregard the argument.

The jury convicted Romero of attempted possession of

cocaine with intent to distribute under 21 U.S.C. §§ 841(a)(1),

846, and aiding and abetting under 18 U.S.C. § 2. Romero appeals.

DISCUSSION

Romero first contends that the evidence was insufficient

to support his conviction under 21 U.S.C. § 841(a)(1).

We review the evidence and its inferences in a light most

favorable to the government. The conviction must be upheld if a

reasonable trier of fact could find that the evidence establishes

guilt beyond a reasonable doubt. See United States v. Gonzalez,

700 F.2d 196, 204 (5th Cir. 1983).

The elements of possession of cocaine with intent to

distribute under § 841(a)(1) are 1) knowledge, 2) possession, and

3) intent to distribute the cocaine. See United States v.

5 Gonzalez, 700 F.2d 196, 204 (5th Cir. 1983). To prove attempted

possession, the Government must show 1) that the defendant acted

with the kind of culpability otherwise required for the commission

of the crime which he is charged with attempting, and 2) the

defendant engaged in conduct which constitutes a substantial step

toward commission of the crime. See United States v. August, 835

F.2d 76, 77 (5th Cir. 1987).3 Romero argues only that there was no

direct evidence to show that he knew he was attempting to possess

cocaine.

This case is very similar to Gonzalez. In that case,

Gonzalez drove a car containing heroin at the request of his

cousin. See Gonzalez, 700 F.2d at 199. Gonzalez testified that he

did not know why his cousin asked him to drive the car, and there

was no direct evidence proving that he knew about the cocaine. He

was present when parties to the transaction expressed reservations

about the “deal” and when they talked about putting money “in the

same place the stuff is.” Gonzalez asked how long “it would take.”

This Court ruled that “under these circumstances, deliberate

ignorance suffices for knowledge for the purposes of a § 841(a)(1)

conviction.” See id. at 204.

3 The jury also convicted Romero of aiding and abetting under 18 U.S.C. 2. The government had to prove that Romero 1) associated with the criminal enterprise, 2) participated in the venture, and 3) sought by action to make the venture succeed. See United States v. Casilla, 20 F.3d 600, 603 (5th Cir. 1994). Because we conclude that there was sufficient evidence that Romero knowingly participated in the venture, there is sufficient evidence to convict him of aiding and abetting.

6 The circumstances of this case also demonstrate that

Romero was at least deliberately ignorant. Romero was in the car

when Rodriguez offered Rivas $ 8,000 to pick up “stuff” that Rivas

understood to be drugs. Rivas recognized this even though he was

a stranger to both Romero and Rodriguez. Romero dropped Rivas off

to scout out the pick-up site. Romero and Rodriguez exchanged

vehicles. Romero drove around each time Rivas went to speak with

Cabrera, and parked only when Cabrera demanded that he do so.

Romero paid the parking attendant and unsuccessfully attempted to

open the trunk for the dummy drugs. When Cabrera dropped off the

dummy drugs, Cabrera testified that Romero said, “[q]uick, quick,

this is hot.” Rivas testified that “some money was given” to

Cabrera, and the videotape shows Romero giving something to him.

When Customs Service agents pulled into the parking lot, Romero and

Rivas drove away so quickly that the agents were unable to stop

them. Romero hid under debris and disrobed to evade the agents.

There is sufficient evidence here for a reasonable jury to conclude

that Romero knew he was attempting to possess cocaine.

II. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN REFUSING TO GRANT A MISTRIAL.

Romero also argues that the district court should have

granted a mistrial because the prosecutor misstated the evidence in

her closing argument. We review orders denying a mistrial for

abuse of discretion. See United States v. Mitchell, 166 F.3d 748,

751 (5th Cir. 1999).

7 This Court analyzes allegations of prosecutorial

misconduct to determine 1) whether the prosecutor’s comments were

improper; and 2) whether the comments prejudiced the defendant’s

substantial rights. See United States v. Lankford, 196 F.3d 563,

574 (5th Cir. 1999).

The prosecutor’s statement was not improper because she

was urging the jury to draw a conclusion based on the evidence.

“[A]n attorney is entitled to urge the conclusions which the

attorney thinks the jury should draw from the evidence.” United

States v. Allen, 588 F.2d 1100, 1108 (5th Cir. 1979) (finding no

misconduct in a summation because evidence supported the

prosecutor’s conclusion). Rivas testified that either Romero or

Rodriguez paid Cabrera, and the videotape showed Romero giving

Cabrera something. Although Cabrera said he received no money,

sufficient evidence supports the prosecutor’s summation.

Even if the summation was improper, it was not

prejudicial enough to require a mistrial. “Error must be regarded

as harmless if, upon an examination of the entire record,

substantial prejudice to the defendant does not appear.” United

States v. Morris, 568 F.2d 396, 402 (5th Cir. 1978). Here there

was at least some basis for the prosecutor’s statement, and the

district judge immediately clarified the jury’s duty to draw

conclusions. Any error was harmless, and the district court did

not abuse its discretion. See Allen, 588 F.2d at 1108 (“Because

8 there was some basis in the record for the [prosecutor’s

conclusion] and there was substantial other evidence . . . the

district court’s instruction to the jury to disregard the offending

language was adequate to cure any prejudice.”); Morris, 568 F.2d at

402 (finding no substantial prejudice where the prosecutor asserted

that government agents were unbiased and the trial judge

immediately told the jury that the summation was not evidence).

For the reasons stated above, the judgment is AFFIRMED.