United States v. Romero Carrion

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                                     
                                 ____________________

        No. 94-1792

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                               ENRIQUE ROMERO-CARRION,

                                Defendant, Appellant.

                                                     
                                 ____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                    [Hon. Hector M. Laffitte, U.S. District Judge]
                                              ___________________

                                                     
                                 ____________________

                               Torruella, Chief Judge,
                                          ___________

                            Selya and Cyr, Circuit Judges.
                                           ______________

                                                     
                                 ____________________

Jose R. Gaztambide for appellant.
             __________________
             Esther  Castro-Schmidt, Assistant  United  States Attorney,  with
             ______________________
        whom  Guillermo  Gil, United  States  Attorney,  and Jos   A.  Quiles-
              ______________                                 _________________
        Espinosa, Senior Litigation Counsel, were on brief for appellee.
        ________

____________________

                                     May 9, 1995
                                                     
                                 ____________________



CYR, Circuit Judge.  Enrique Romero Carrion appeals the
                    CYR, Circuit Judge
                         _____________

          judgment  of  conviction and  sentence  entered  against him  for

          possessing  cocaine with intent to  distribute.  See  21 U.S.C.  
                                                           ___

          841(a)(1).  Finding no reversible error, we affirm.

I
                                          I

                                     BACKGROUND1
                                     BACKGROUND
                                     __________

                    On  July 1,  1993,  a federal  law enforcement  officer

          witnessed a  gathering  of men  and vehicles  in a  park in  Isla

          Verde, Puerto  Rico.  After recognizing one of the men as a "drug

          point,"  the officer  maintained surveillance  and  saw appellant

          standing  in  close proximity  to a  vehicle from  which packages

          wrapped in brown paper were being removed.  The officer suspected

          that the  packages contained cocaine.   Shortly thereafter appel-

          lant  was  seen getting  into a  vehicle  and circling  the park.

          After appellant rejoined the group, the police moved in to arrest

          them. 

                    Appellant was arrested while  attempting to flee.  More

          than $1,000  in cash  was seized  from his  person, and an  empty

          paper  bag     bearing  the notation  "$1,500  for Kike"      was

          recovered from one of  the seized vehicles.2  Over  255 kilograms

          of  cocaine  were recovered  from the  vehicles  at the  scene   

          twenty-five kilograms from  the vehicle used by  appellant    all
                              
          ____________________

               1The relevant  facts are recited in the light most favorable
          to the verdict.   United States v. Tuesta-Toro, 29  F.3d 771, 773
                            _____________    ___________
          (1st Cir. 1994).

               2The  government  established  that  "Kike"  was appellant's
          nickname. 

                                          2



in similarly  wrapped one-kilo  packages.  Following  a three-day

          jury trial, appellant was convicted and sentenced to life impris-

          onment.  This appeal ensued.

II
                                          II

                                      DISCUSSION
                                      DISCUSSION
                                      __________

          A.   Sufficiency of the Evidence 
          A.   Sufficiency of the Evidence
               ___________________________

                    Appellant  challenges the  sufficiency of  the evidence

          supporting his  conviction for possessing cocaine  with intent to

          distribute.  We review  the evidence in the light  most favorable

          to the  verdict, drawing all reasonable  inferences and resolving

          all credibility determinations in favor of  the verdict, in order

          to  determine  whether a  reasonable  trier  of  fact could  have

          reached a verdict  of guilt.   United States  v. Tuesta-Toro,  29
                                         _____________     ___________

          F.3d  771, 773  (1st Cir.  1994).   The evidence  arrayed against

          appellant plainly surmounted this threshold.  

                    Although unemployed  at the time of  the arrest, appel-

          lant  possessed a substantial amount  of cash clearly linked with

          the  larger cocaine conspiracy.   See United  States v. Figueroa,
                                            ___ ______________    ________

          976 F.2d  1446, 1455 (1st  Cir. 1992) (defendant's  possession of

          large  amount of  cash     otherwise  unexplained     constitutes

          relevant evidence  in prosecution for violating    841(a)), cert.
                                                                      _____

          denied,  113 S.  Ct.  1346 (1993).    The jury  reasonably  could
          ______

          conclude that appellant was engaged in countersurveillance at the

          scene of the drug exchange, United States v. Munoz, 36 F.3d 1229,
                                      _____________    _____

          1235 (1st Cir. 1994), and that he constructively possessed the 25

          kilograms  of cocaine seized from the vehicle which he had driven

                                          3



around the  park.  Id.   The jury reasonably could  infer    from
                             ___

          appellant's prolonged presence at  the scene of the crime  and in

          close  proximity to the  cocaine    that  he was  no innocent by-

          stander.   See United States v. Hernandez, 995 F.2d 307, 314 (1st
                     ___ _____________    _________

          Cir.) ("criminals rarely welcome innocent persons as witnesses to

          serious  crimes"), cert. denied, 114 S. Ct. 407 (1993).  Finally,
                             _____ ______

          appellant's attempt to flee  the scene evinced a  keen conscious-

          ness of guilt.  Id. at 314-15 ("[E]vidence of flight is a partic-
                          ___

          ularly eloquent  reflection of  a guilty mind.")  (citation omit-

          ted).

          B.   Motion for Mistrial
          B.   Motion for Mistrial
               ___________________

                    Appellant asserts error in the district court's  denial

          of his  motion for  mistrial.   We review  for manifest abuse  of

          discretion.    United States  v. Pierro,  32  F.3d 611,  617 (1st
                         _____________     ______

          Cir.), cert. denied, 115 S. Ct. 919 (1994).  
                 _____ ______

                    A police officer testified  that appellant attempted to

          flee  when the police moved  in to arrest  the assembled partici-

          pants.  Appellant objected on the ground that the witness had not

          observed the attempt to flee, hence was not competent to testify.

          The  government conceded the point  and assured the  court that a

          competent witness would testify to the same effect.  The district

          court provisionally denied appellant's  motion for mistrial and a

          competent  witness later  testified  that he  saw appellant  "not

          really  walking, almost  running" from  the scene during  the ar-

          rests.  There was no error in denying the motion for mistrial.

          C.   The Sentencing Claim
          C.   The Sentencing Claim
               ____________________

4



As required by 21 U.S.C.   851(a), the government  duly

          filed  a  pretrial  information  alerting  appellant  that,  upon

          conviction, it  would seek  the enhanced penalties  prescribed by

          law  for a person with two or more prior felony drug convictions,

          see  21 U.S.C.   841(b)(1)  ("such person  shall be  sentenced to
          ___

          life  imprisonment"),  thereby   triggering  the  section  851(b)

          requirement that    

                    the  court shall after  conviction but before
                    pronouncement  of  sentence  inquire  of  the
                    person with  respect to whom  the information
                    was filed whether  he affirms or  denies that
                    he has been  previously convicted as  alleged
                    in the information, and shall inform him that
                    any challenge to a prior conviction  which is
                    not made  before sentence is imposed  may not
                    thereafter be raised to attack the sentence.

          21 U.S.C.   851(b).   The government  concedes that the  district

          court failed to  comply with  section 851(b) but  imposed a  life

          sentence nonetheless. 

                    We have yet to consider in  a reported decision whether

          a failure to comply  with section 851(b) is subject  to "harmless

          error" analysis.  It is clear, on the other hand, that failure to

          file  the information  required  by section  851(a) deprives  the

          district court  of jurisdiction  to impose an  enhanced sentence.

          Moreover,  absent compliance  with  section  851(a)  an  enhanced

          sentence  cannot be saved under a "harmless error" analysis.  See
                                                                        ___

          Suveges v. United States, 7 F.3d 6, 10 (1st Cir. 1993) (upholding
          _______    _____________

          collateral challenge to  enhanced sentence imposed after  govern-

          ment failed to file   851(a) information). 

                    All courts  of appeals which have  considered the ques-

5



tion  presently hold  that  failure  to  engage in  the  colloquy

          required by section 851(b) is  subject to "harmless error" analy-

          sis.   See United States v.  Flores, 5 F.3d 1070,  1082 (7th Cir.
                 ___ _____________     ______

          1993),  cert. denied,  114 S.  Ct. 884  (1994); United  States v.
                  _____ ______                            ______________

          Fragoso, 978 F.2d 896, 902 (5th  Cir. 1992), cert. denied, 113 S.
          _______                                      _____ ______

          Ct. 1664 (1993); United  States v. Housley, 907 F.2d  920, 921-22
                           ______________    _______

          (9th Cir. 1990);  United States  v. Weaver, 905  F.2d 1466,  1482
                            _____________     ______

          (11th Cir. 1990), cert.  denied, 498 U.S. 1091 (1991).   Although
                            _____  ______

          at one  time the Fifth Circuit and  the Eleventh Circuit took the

          position  that  failure  to  conduct a  section  851(b)  colloquy

          deprived  the  sentencing  court  of jurisdiction  to  impose  an

          enhanced sentence, see United States v. Olson, 716 F.2d 850, 853-
                             ___ _____________    _____

          54 (11th Cir. 1983); United States v. Cevallos, 574 F.2d 854, 855
                               _____________    ________

          (5th  Cir.  1978),  both  courts now  subject  such  omissions to

          harmless error review.   Weaver, 905 F.2d at 1482;  United States
                                   ______                     _____________

          v. Nanez, 694 F.2d 405, 413 (5th Cir. 1982) (expressly overruling
             _____

          Cevallos and  applying "harmless error"), cert.  denied, 461 U.S.
          ________                                  _____  ______

          909 (1983).   We are not persuaded to the  contrary view urged by

          appellant. 

                    A procedural  error will  be found  harmless if  "it is

          highly probable  that the challenged  action did  not affect  the

          judgment."  United  States v. Noone,  913 F.2d  20, 36 (1st  Cir.
                      ______________    _____

          1990) (citations omitted), cert. denied, 500 U.S. 906 (1991); see
                                     _____ ______                       ___

          Fed. R. Crim.  P. 52(a)  (harmless error defined  as "any  error,

          defect, irregularity  or variance which does  not affect substan-

          tial  rights").  The error  of omission under  section 851(b) was

6



harmless in this case. 

                    First, notwithstanding  repeated invitations, appellant

          neither  points to a defect  in the prior  convictions nor denies

          that he was the  person previously convicted.  Second,  since all

          prior convictions relied upon by the district court occurred more

          than  five  years before  the filing  of  the information  in the

          present case, appellant is  barred from challenging their validi-

          ty.   21 U.S.C.   851(e) ("No  person who stands convicted  of an

          offense under this part  may challenge the validity of  any prior

          conviction alleged  under this  section which occurred  more than

          five years before the date of the information alleging such prior

          conviction.").3   Accordingly,  the  district court's  failure to

          comply with section  851(b) was harmless  error and its  judgment

          must be affirmed. 

                    Affirmed.  
                    Affirmed.
                    ________

____________________

               3Several courts of appeals  have held that   851(e)  moots  
          851(b) if each prior conviction at issue is more than five  years
          old.   See  Flores, 5  F.3d at  1082; Fragoso,  978 F.2d  at 902;
                 ___  ______                    _______
          Housley, 907 F.2d at  921-22; Weaver, 905 F.2d at 1482.  Although
          _______                       ______
          we agree  that    851(e) precludes  collateral challenges  to the
          validity  of such time-barred  convictions,   851(b) also affords
          ________
          the  defendant an opportunity to  demonstrate that he  is not the
          person  to whom  a prior  record of  conviction refers.   Section
          851(e) appears to impose no time limit on the latter challenge.  

                                          7