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opinion should not be published and is not precedent except under the limited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
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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,
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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
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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.
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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.
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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.
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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).
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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
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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.
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