F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 29 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 02-2265
v. (D.C. No. CR-01-735-LH)
MARIO ROMERO, (D. N.M.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before LUCERO , O’BRIEN , and TYMKOVICH , Circuit Judges.
Following an undercover investigation, police arrested Mario Romero and
charged him with conspiracy to distribute more than five grams of cocaine base in
violation of 21 U.S.C. § 846 (“Count I”), distribution of more than five grams of
cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) (“Count II”),
and use of a telephone to facilitate a drug trafficking offense in violation of 21
U.S.C. § 843(b) (“Count III”).
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
The jury acquitted Romero on Counts II and III, but convicted him on the
conspiracy charge. During and at the conclusion of his trial, Romero made three
motions asking the district court to enter a judgment of acquittal, wherein he
argued that the evidence presented by the prosecution was insufficient to support
a conviction. The district court denied all three motions. Our jurisdiction arises
pursuant to 28 U.S.C. § 1291. We affirm.
I.
We review de novo a district court’s denial of a motion challenging the
sufficiency of the evidence to support a conviction. United States v. Almaraz,
306 F.3d 1031, 1040 (10th Cir. 2002). In doing so we view the evidence and
draw all inferences in the light most favorable to the government to determine
“whether ‘any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.’” United States v. Evans, 318 F.3d 1011, 1018
(10th Cir. 2003) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Given
this deference to the jury’s weighing of the evidence and the credibility of
witnesses, the following are the relevant facts of the case viewed most favorably
to the government.
On November 21, 2000, undercover officer Miguel Mendez and a
confidential informant drove to an auto shop where the informant introduced
Mendez to Dorian Rios. Mendez told Rios he wanted to buy some crack cocaine.
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Rios told Mendez he could supply the drugs, and proceeded to make a number of
phone calls. The three men then left the shop and attempted to purchase crack at
a nearby location, but returned to the shop unsuccessful. Shortly thereafter,
Romero arrived. Rios asked him if he knew anyone who would sell them some
crack. Romero said he would make some calls and mentioned the name “Sonya,”
a possible source of cocaine previously mentioned to Officer Mendez by one of
the other co-conspirators.
The group then went to lunch, where Romero told them that he did not sell
drugs because he was a family man, but that he did occasionally use them with
Rios. Romero then asked Mendez how much an ounce of crack usually cost and
Mendez replied that it could be anywhere from $600 to $1000. As the group left
the restaurant, Romero told Mendez that he and Rios would get him the crack.
Mendez and the informant then left, promising to return to the shop later in
the afternoon. When Mendez arrived, Rios appeared upset, and told Mendez he
had not been able to find any crack. Meanwhile, Romero returned to the shop and
started working on the transmission of a truck. Shortly thereafter he received a
phone call, and Mendez testified that he heard Romero ask, “Do you have it?” and
then say, “Okay, I will send them over there.” Romero then hung up and told
Mendez and Rios, “You guys go over there. She’s got it.”
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Mendez refused to ride in Rios’s truck, but instead gave Rios $850 and
Rios went alone to buy the cocaine. Rios did not say exactly where he went or
who sold him the drugs, but he returned a short time later with approximately 18.5
grams of crack. Mendez took the drugs and then gave Rios $50 for setting up the
deal. He did not pay Romero for his role in the deal.
II.
To support a conviction of conspiracy to distribute cocaine, the government
must show that (1) two or more persons, including the defendant, agreed to
violate the law; (2) the defendant knew the essential objective of the conspiracy;
(3) the defendant knowingly and voluntarily became part of the conspiracy; and
(4) the alleged co-conspirators were interdependent. United States v. Ivy, 83 F.3d
1266, 1285 (10th Cir. 1996) (quotations and citations omitted).
A jury may reasonably conclude that two or more people agreed to commit
a crime based on “the acts of the parties and other circumstantial evidence
indicating concert of action for the accomplishment of a common purpose.”
United States v. Johnson, 42 F.3d 1312, 1319 (10th Cir. 1994). The jury also
“may presume a defendant is a knowing participant in the conspiracy when he or
she acts in furtherance of the objective of the conspiracy.” United States v.
Carter, 130 F.3d 1432, 1440 (10th Cir. 1997). Interdependence is established
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when “each coconspirator’s activities constitute essential and integral steps
toward the realization of a common, illicit goal.” Id.
Evidence presented at trial showed that on the day of Romero’s arrest he
and Rios discussed how to find crack for Mendez, and Romero agreed to make
phone calls to help further the transaction. Rios had tried repeatedly to get the
drugs for Mendez, but was unsuccessful until Romero made and received at least
two phone calls. Following these calls, Romero told Rios and Officer Mendez:
“You guys go over there. She’s got it.” Rios left with $850 provided to him by
Officer Mendez and returned a few minutes later with 18.5 grams of crack.
Viewing this evidence in the light most favorable to the government, we
conclude that the jury could have reasonably found that Romero knowingly joined
a conspiracy to sell cocaine and that the other participants in the conspiracy were
dependent on him to complete the sale. Though the prosecution’s case was based
largely on the testimony of a single witness (Officer Mendez), and Romero
presented evidence contradicting much of that witness’s testimony, “we do not
weigh conflicting evidence or consider witness credibility, as these duties are
delegated exclusively to the jury.” Evans, 318 F.3d at 1018. We therefore
conclude that the evidence was sufficient to support Romero’s conviction and the
district court did not err in denying his motions for judgment of acquittal.
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III.
In addition to urging us to reconsider conflicting evidence presented at
trial, Romero argues that the jury, in acquitting him of Counts II and III, appears
to have issued verdicts that are logically inconsistent with his conviction on
Count I. That is, if the jury found that Romero was not guilty of using the
telephone to facilitate drug trafficking, as alleged in Count III, he could not have
been an integral part of the conspiracy as required for conviction on Count I,
because most of his participation was in making and receiving phone calls.
As Romero acknowledges, however, it has long been settled that
inconsistent verdicts do not provide the basis for reversal of a conviction. See
United States v. Powell, 469 U.S. 57, 68-69 (1984); United States v. Galbraith, 20
F.3d 1054, 1058 (10th Cir. 1994). Romero insists that although Powell and
Galbraith clearly hold that inconsistent verdicts do not compel a reversal of the
conviction, this Court should consider a new standard where not guilty verdicts
are viewed “as one factor contributing to the tenuousness of the guilty verdict.”
But whether the inconsistent verdicts do indeed suggest that the guilty
verdict is tenuous does not affect our review of the evidence supporting that
verdict. See Powell, 469 U.S. at 64-65 (quoting Dunn v. United States, 284 U.S.
390, 393 (1932) (“‘[t]he most that can be said . . . is that the verdict shows that
either in the acquittal or the conviction the jury did not speak their real
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conclusions, but that does not show that they were not convinced of the
defendant’s guilt’”). The standard for our review remains as stated in Evans:
Viewing the evidence in the light most favorable to the government, could “‘any
rational trier of fact . . . have found the essential elements of the crime beyond a
reasonable doubt?’” 318 F.3d at 1018 (quoting Jackson v. Virginia, 443 U.S. 307,
319 (1979) (emphasis omitted). As the Powell Court stated, “a criminal defendant
already is afforded protection against jury irrationality or error by the independent
review of the sufficiency of the evidence undertaken by the trial and appellate
courts. . . . This review should be independent of the jury's determination that
evidence on another count was insufficient.” 469 U.S. at 67.
The jury’s acquittal verdicts on Counts II and III therefore are irrelevant to
our review of the evidence supporting the guilty verdict on Count I. Because our
independent review shows that the evidence at trial was sufficient to support that
verdict, we affirm.
Entered for the Court:
TIMOTHY M. TYMKOVICH
Circuit Judge
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