IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-20271
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HERMILO HERRERO,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Southern District of Texas, Houston
(CR-H-95-231-3)
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April 8, 1997
Before REAVLEY, JOLLY, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Hermilo Herrero appeals his convictions for conspiracy to
possess with intent to distribute cocaine and for aiding and
abetting the possession with intent to distribute cocaine. After
studying the briefs submitted to this court and reviewing the
record in this matter, we conclude that no reversible error
occurred and affirm the convictions.
I
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
Herrero was named, along with three other individuals, in a
six-count indictment and charged with conspiracy to possess with
intent to distribute cocaine (Count 1), aiding and abetting in the
possession with intent to distribute cocaine (Count 2), using and
carrying a firearm during and in relation to a drug trafficking
offense (Count 3), and possession of a firearm by a convicted felon
(Count 5). After a jury trial, Herrero was found guilty of Counts
1 and 2 and was acquitted of Count 5.1
Herrero timely filed this appeal, contesting the sufficiency
of the evidence, the rulings of the district court concerning the
production of certain government informants and the denial of his
motion for a new trial based upon ineffective assistance of
counsel.
II
A
We turn to the facts of this case as they emerged from the
evidence presented at trial. Herrero and the other men charged in
the indictment were arrested at a Houston motel after attempting to
sell five kilograms of cocaine to an undercover police officer. On
the day of the bust, Herrero and Jesus Cortez2 arrived at the motel
1
Count 3 was dismissed by the court at the conclusion of the
evidence.
2
Cortez was named in the indictment with Herrero but was tried
separately.
2
in a truck driven by Kennerson Dodd.3 Cortez and Herrero left the
truck and went to the appointed room. Dodd then left the motel.
Once inside the room, Cortez, Herrero and the undercover officer
discussed the planned transaction. The confidential informant
present in the room testified that Cortez introduced Herrero as the
middleman or owner of the “merchandise.” The undercover officer
told Cortez and Herrero that only one of them could go with him to
count the “buy” money. Herrero first said he would go and then
suggested that Cortez go instead. While Cortez and the officer
were gone, Herrero told the confidential informant that “[t]he
first deal is always the hardest.”
After showing Cortez the money, the officer returned to the
room and asked where the cocaine was located. Cortez responded
that it would be arriving soon in Dodd’s truck. This conversation
occurred in Herrero’s presence.
Dodd subsequently returned to the motel and both Herrero and
Cortez left the room to meet him. Eventually, Dodd demanded to see
the “buy” money and the officer demanded to see the cocaine. Dodd
refused to allow the officer to see the cocaine until the officer
turned over the money, which the officer steadfastly refused to do.
3
Dodd, who was acquitted, was a co-defendant at Herrero’s
trial.
3
The officer eventually called off the deal and signaled for the
arresting officers to apprehend the men.
Given these facts, it is clear to us that there was ample
evidence4 that connected Herrero to the conspiracy to violate the
narcotics laws for a reasonable jury to have been convinced beyond
a reasonable doubt of Herrero’s guilt.5
4
We find Herrero’s argument that the testimony of Dodd
regarding their presence at the motel exculpates him to be
meritless. There was conflicting testimony presented to the jury,
and the resolution of the credibility issues inherent in such
conflicts is within the power of the jury. See Gardea Carrasco,
830 F.2d at 44. Herrero’s argument that he cannot be found guilty
of conspiracy because he was not involved in the planning stages of
the transaction is similarly meritless. See United States v.
Alvarez, 625 F.2d 1196, 1198 (5th Cir. 1980) (holding that
defendant may not escape conviction merely because he played only
a minor role or joined the conspiracy after its inception).
Finally, we reject Herrero’s argument that “any participation
attributed to Herrero by Officer Garza should be rejected, as the
jury in acquitting Kennerson Dodd rejected Garza’s testimony but
accepted Dodd’s testimony, which was exculpatory to Herrero. It
would be irrational for a trier of fact to reject the testimony of
Garza as it related to Dodd but to accept it to convict Herrero.”
Juries are entitled to render inconsistent verdicts. United States
v. Powell, 105 S.Ct. 471, 476-77 (1984); see also United States v.
Parks, 68 F.3d 860, 865 (5th Cir. 1995), cert. denied, 116 S.Ct.
825 (1996) (holding that not guilty verdict on one count does not
establish facts favorable to the defense for purpose of determining
sufficiency of evidence on counts of conviction).
5
Herrero was convicted of both conspiracy to possess with
intent to distribute cocaine and aiding and abetting the possession
with intent to distribute cocaine. In order to prove the offense
of aiding and abetting the possession, the government must have
shown that Herrero “became associated with, participated in, and in
some way acted to further the possession and distribution of the
drugs.” United States v. Chavez, 947 F.2d 742, 745 (5th Cir.
1991). This court has previously recognized that, as a general
matter, “the same evidence will support both a conspiracy and an
4
B
Herrero next complains that he was prejudiced by the district
court’s rulings concerning the disclosure and production of the
confidential informants involved in his arrest. The district court
denied Herrero’s pre-trial request for disclosure of confidential
informants, then during trial required the government to produce
one informant and reveal the case file on the second informant.
The first informant appeared and testified at trial, but the
government reported that they were unable to locate the second
informant. Herrero contends that he has been denied due process
and his right to confrontation.
The first informant testified at trial and Herrero fully
cross-examined him. His testimony plainly implicated Herrero, and
Herrero makes no claim that he would have proceeded differently in
preparing his case had he known the identity of this informant
earlier. Herrero therefore fails to show any prejudice flowing
from the district court’s initial denial of his motion to disclose.
See United States v. Perkins, 994 F.2d 1184, 1190 (6th Cir. 1993)
(denial of defendant’s motion to disclose identity of informant
prior to trial not error because informant testified, was
extensively cross-examined, and no prejudice resulted from delay).
aiding and abetting conviction.” Id. We therefore affirm
Herrero’s conviction on Count 2 on the basis of the evidence
outlined above.
5
Herrero also complains of the failure of the government to
produce the second informant. Herrero makes no showing that the
second informant would have testified in his favor concerning the
transaction. Both the officer and the first informant testified
that the second informant “stayed in the background” during the
meeting, and there appears to be no evidence that the second
informant would have offered any new testimony not covered by the
other eyewitnesses. Again, Herrero has failed to show prejudice as
a result of the non-disclosure.
6
C
Herrero filed a motion for new trial claiming ineffective
assistance of counsel. The district court denied the motion, and
we review the denial for abuse of discretion. United States v.
Giraldi, 86 F.3d 1368, 1374 (5th Cir. 1996).
In order to establish a claim of ineffective assistance of
counsel, a defendant must show that his attorney’s performance fell
below an objective standard of reasonableness and that he suffered
actual prejudice as a result. Strickland v. Washington, 104 S.Ct.
2052, 2064 (1984). To satisfy the prejudice prong of Strickland,
a defendant must show “that counsel’s error were so serious as to
deprive [him] of a fair trial, a trial whose result is reliable.”
Lockhart v. Fretwell, 113 S.Ct. 838, 842 (1993). Without a showing
of prejudice, the court never reaches the question of deficiency of
performance. Yohey v. Collins, 985 F.2d 222, 228.
Herrero’s complaint is based upon comments made by his counsel
during opening and closing statements. These comments related to
certain of Herrero’s previous convictions that were part of a pre-
trial stipulation. The comments were apparently efforts by defense
counsel to minimize the seriousness of the convictions.6 These
comments did not deprive Herrero of a fair trial. The testimony
6
The district court noted that the “comments were clearly
intended to and did leave the impression that the offenses were
minor, despite their characterization as felonies.”
7
was compelling that Herrero was an active participant in the drug
transaction; thus, even if the comments were inappropriate, it
cannot be said that the jury was so prejudiced by them that the
entire proceeding is rendered unreliable. We hold that the
district court acted within its discretion in denying the motion
for new trial.
III
There was ample evidence to support Herrero’s conviction for
both conspiracy to possess with intent to distribute cocaine and
aiding and abetting the possession with intent to distribute
cocaine. A rational jury could have concluded, from Herrero’s
presence at the motel--combined with his actions and comments and
the comments of Cortez--that Herrero was not a mere innocent
bystander but was, instead, involved in the drug conspiracy.
Furthermore, Herrero has failed to show prejudice as the result of
either the trial court’s ruling on his motion for disclosure of
confidential informants or the failure of the government to produce
the second informant. Finally, Herrero suffered no actual
prejudice from the remarks made by counsel during opening and
closing arguments and, therefore, fails to establish a claim of
ineffective assistance of counsel.
For the reasons above, the judgment of the district court is
A F F I R M E D.
8
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