UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_____________________________________
No. 93-2722
_____________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JOSE REGOLO FLORES-CHAPA,
Defendant-Appellant.
______________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
______________________________________________________
(March 10, 1995)
Before REAVLEY, DUHÉ and PARKER, Circuit Judges.
DUHÉ, Circuit Judge:
Appellant Jose Regolo Flores-Chapa appeals from the jury's
verdict finding him guilty of conspiracy to possess with intent to
distribute in excess of 5 kilograms of cocaine and aiding and
abetting possession with intent to distribute in excess of 5
kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A) and 18 U.S.C. § 2. For the reasons set forth below, we
reverse and remand with instructions.
I. PROCEDURAL BACKGROUND
Jose Regolo Flores-Chapa (Appellant), Mario Gonzales
(Gonzales) and Juan Jose Castillo (Castillo) were indicted in a
two-count indictment charging them with the crimes noted above.
Gonzales and Castillo pleaded "guilty" and Appellant pleaded "not
guilty" and was found guilty on both counts.
Appellant raises four points of error on appeal: 1) The
evidence was insufficient to prove guilt beyond a reasonable doubt;
2) The district court abused its discretion by failing to grant a
mistrial after the government referred to previously excluded
evidence before the jury; 3) The district court abused its
discretion under Fed. R. Evid. 404(b) by allowing the government to
introduce evidence of Appellant's prior drug conviction; 4) The
government committed plain error when it referenced excluded
evidence in its closing argument. Because we find the government's
closing argument--when combined with the previous improper
statements--constituted plain error requiring reversal and that the
admissible evidence was insufficient to sustain the conviction, we
do not decide the remaining issues.
II. FACTS
In April of 1993, a confidential informant (CI) advised the
Drug Enforcement Administration (DEA) of a pending cocaine
transaction at the Marriott Hotel located at the Intercontinental
Airport in Houston. Under DEA supervision, the CI agreed to
purchase 40 kilograms of cocaine at a price of $16,500 per
kilogram. The CI understood that the cocaine would be delivered
by Mario Gonzales. On April 2, 1993, Mario Gonzales flew to
Houston from his home in Roma, Texas. As agreed, the CI met
Gonzales at the airport, and gave him the keys to a van.1 Gonzales
left the airport in the van and was followed by the DEA to an
1
Unknown to Gonzales, the van was actually a DEA undercover
vehicle.
2
Econolodge motel. Gonzales testified that the arrangements for the
delivery of the cocaine were made by a man named Ramirez, who was
also from Roma.
Delivery was to be made at a prearranged site in Houston by a
young man driving an orange pick-up. To confirm his readiness to
take delivery, Gonzales had been instructed to call either a pager
or a residence telephone number. He first tired to call the pager,
but discovered that the hotel telephone system would not allow
calls to be placed to a pager. Next, Gonzales called the residence
number, and a woman informed him that "no one was there." He gave
the woman his telephone and room numbers, and asked her to call the
pager. After waiting unsuccessfully for a return call, he left for
the designated meeting site--a Chevron gas station--followed
closely by the DEA. At the station, Gonzales began to call the
pager, but decided not to when he discovered that the public phone
would not receive incoming calls. Instead, Gonzales again phoned
the residence, and a woman informed him that the orange truck was
on its way.
A short time later, Juan Castillo pulled into the station
driving an orange, 1981 Ford pick-up. Castillo and Gonzales traded
keys, and Gonzales told Castillo that he would call when he was
ready to exchange the pick-up for the van. At this point, the DEA
surveillance team divided. Part of the team followed Gonzales in
the orange pick-up back to the Marriott, while the remaining agents
followed Castillo in the DEA van. After returning to the Marriott,
Gonzales met the CI and took him to the orange pick-up. Gonzales
3
opened a built-in tool box in the truck bed, and showed the CI the
cocaine. As Gonzales closed the tool box, the CI gave the DEA
surveillance team a pre-arranged signal, and Gonzales was arrested.
In the meantime, the other DEA surveillance team followed
Castillo to the Arbor Oaks Apartments--located almost directly
across the street from the Chevron station. After this
surveillance team learned that Gonzales had been arrested, they
obtained Castillo's apartment number from the apartment manager,
and proceeded to his apartment. The agents were greeted at the
door by Alma Flores (Mrs. Flores) and Esmeralda Castillo (Mrs.
Castillo). Mrs. Flores and Mrs. Castillo confessed to ownership of
the truck, and gave the agents permission to search the apartment.
After entering the apartment, the agents conducted a
"protective sweep," and discovered Castillo sitting on a bed
watching T.V. Castillo was escorted to the front porch where he
was interviewed by some of the agents. As a result of the
interview, the focus of the investigation shifted to the Appellant.
In addition to Mrs. and Mr. Castillo, the agents discovered that
Appellant and his wife Mrs. Flores (the parents of Esmeralda) also
occupied the apartment.
Several agents remained at the apartment to continue
surveillance, while the rest transported Castillo to the Harris
County Jail. Shortly after the agents transporting Castillo
departed, Appellant returned and was immediately arrested. While
searching Appellant, an agent discovered a small quantity (11.8
grams) of cocaine in his boot and a pager on his person. The agent
4
was able to retrieve three telephone numbers from Castillo's pager.
One of the numbers matched the phone number and room number of
Gonzales' room at the Econolodge. Another number corresponded to
Gonzales' pager. The identity of the third number was not
disclosed.
III. IMPROPER ARGUMENT
During the course of the trial, the district court ruled that
certain testimony adduced by the government was inadmissible and
instructed the jury to disregard the testimony. Nevertheless, the
government made reference to the excluded testimony during
examination of the very next witness. Defendant again objected and
moved for a mistrial. The court denied the mistrial, admonished
the government at the bench and instructed the jury that the
lawyer's statements were not evidence. Despite two sustained
objections, a specific warning to government counsel and two
specific instructions to the jury, the government again made
reference to the excluded testimony during its closing argument.
Appellant asserts that this government conduct deprived him of a
fair trial.
Appellant objects to the government's closing for the first
time on appeal, therefore, we review for plain error. Under our
recent en banc decision in United States v. Calverley,2 we review
for plain error using a three-part test. First, there must be
2
37 F.3d 160 (5th Cir. 1994)(en banc).
5
error,3 next, that error must be plain,4 and finally, the error must
affect substantial rights.5
Our analysis must begin with the allegedly objectionable
statement. Appellant complains of the following portion of the
government's closing,
He [Appellant] gets the pager message from his wife,
everything--he's ready to go, he thinks the--the broker
says everything is ready, he sends his son-in-law with
the dope. Son-in-law arrives, makes the exchange, and
unfortunately for them, good for us, he's making it under
DEA supervision. He is arrested.
(emphasis supplied).6
A. Was there Error?
Without question, the government's statement during its
closing constituted error. The impropriety of the statement is
keyed to the district court's initial ruling finding certain
hearsay evidence inadmissible. Therefore, we must first examine
the court's initial ruling.
The original hearsay evidence was adduced during direct
examination of DEA Agent Cheryl Roberts:
A. He [Castillo] stated that he was driving the orange
truck. He was--he picked it up. His father-in-law
3
Id. at 162.
4
Id.
5
Id. at 164.
6
In the government's rebuttal argument a similar statement was
made, "That's what's happened here. The father-in-law is telling
the son-in-law, `Got the page. Take the drugs.' He does, and
they're arrested." (emphasis supplied). While Appellant fails to
raise this statement on appeal, it provides further indicia of how
the error was magnified by the government's conduct throughout the
trial.
6
[Flores-Chapa] told him to pick it up at a store and
drive it to the Chevron station.
(emphasis supplied). Appellant immediately objected to the hearsay
testimony. The district court sustained the objection and
instructed the jury to disregard Roberts' answer.7 However, during
direct examination of the very next witness, the following exchange
occurred:
MR. GARCIA [for Appellant]: Your Honor, before we
get into a situation of something that he shouldn't
testify to, I think perhaps he should be admonished
regarding the statement we just approached the bench
about.
M M M M
MR. MAGLIOLO [for Government]: Your Honor, I
instructed the witness as per your prior ruling not to go
into what Mr. Castillo said about who told him to drive
the truck. He's already been instructed.
MR. GARCIA: Your Honor, may I approach the bench?
THE COURT: Yes.
(Discussion at Bench as Follows:)
MR. GARCIA: At this time the defendant would move
for a mistrial. The Government just made a statement
into the record reciting the very statement that the
Court has just said is not admissible. The record would
speak for itself that Mr. Magliolo just said--you told
him not to get into the statement and then he read--he
recited the statement for the jury in open court. And I-
-
COURT: I'm going to deny the motion because the
previous witness, Roberts, already answered the same
question, and I have instructed the jury to disregard it.
7
Appellant objected on the basis that Castillo's statement was
made post-arrest, and therefore, if a conspiracy involving Flores-
Chapa existed, the statement was made after the conspiracy had
ended, and therefore was not admissible under Fed. R. Evid.
801(d)(2)(E). The district court sustained the objection.
7
Just a minute. I will instruct the Government not
to go into any type of conduct like that.
And you [Garcia] need to make objections to
particular questions. I don't know yet whether you
objected to the last question asked this witness.
MR. GARCIA: I am objecting. The problem is that
they are blurting it out before a question is asked. In
other words just going on a narrative, Judge. And I'll--
I'm having to deal with that.
THE COURT: You need to object when the question
is asked. Not after the question has been answered. Are
you objecting to that question?
MR. GARCIA: Yes, I am.
THE COURT: All right. The objection is
sustained.
(In Open Court)
MR. GARCIA: I will ask the Court instruct the
jury to disregard Mr. Magliolo's statements, and instruct
them that whatever he says is not evidence, Judge.
COURT: The jury will disregard any comments made
by the prosecutors or the defense lawyer. I will
instruct you later that what the lawyers say is not
evidence.
What you may consider as evidence is what the
witnesses say under oath, unless I told you to disregard
anything that the witness has said, and such written
exhibits, if any, that I admit.
What the lawyers say is not evidence and should not
be considered by you for any purpose.
(emphasis supplied).
The government contends that the questioned statement was not
made in reference to the excluded evidence, but rather was a fair
comment on the testimony of DEA agents Donald Barnes and Kevin
Stanfill. Agent Barnes was accepted by the district court as an
expert witness. He testified regarding the general structure of
8
drug organizations, stating that drug organization were often
comprised of family members and usually had an "overseer" or
"broker" who arranged or monitored the transaction.
Agent Stanfill was not offered or accepted as an expert, and
basically acted as a fact witness recounting the events of the drug
transaction. He did not mention Appellant during direct
examination, and admitted on cross-examination that he had no
indication of Appellant's involvement with the transaction until he
saw Appellant at the DEA office after his arrest. Nonetheless, on
redirect examination, the following exchange occurred,
Q. Agent Stanfill, based on your experience as a DEA
agent, are the only people involved in a drug conspiracy
the people that are arrested at the scene of the crime?
A. No, sir.
Q. All right. And would it be fair to say that someone
was in control of the Houston end of this 40 kilos?
A. Yes, sir.
Q. And if it wasn't the 19-year-old, 20-year-old Mr.
Juan Castillo, who would it be?
A. I would think it would be Mr. Chapa, sir, based on
my experience.
(emphasis supplied). No objection was made to this testimony.
While both agents expressed their opinion that Appellant was
a member of the conspiracy and in charge of the cocaine, neither
agent opined or inferred that Appellant instructed Castillo to
drive the truck to the meeting site. Therefore, the government's
statement can only be regarded as a direct reference to the
testimony that the district court had specifically excluded.
Acceptance of the statement was therefore error.
9
B. Was it Plain?
As we set out in Calverley,
The Supreme Court has taught repeatedly that "plain"
errors are errors which are "obvious," " c l e a r , " o r
readily apparent;" they are errors which are so
conspicuous that "the trial judge and prosecutor were
derelict in countenancing [them], even absent the
defendant's timely assistance in detecting [them]."
United States v. Calverley, 37 F.3d at 163 (footnotes omitted). As
discussed previously, the government's statement cannot be read to
be anything other than a comment on the excluded evidence. We also
recognize that while the Appellant could and indeed should have
objected, he would have done so with the risk of calling
additional, and unwanted, attention to the remark. See e.g. United
States v. Garza, 608 F.2d 659, 666 (5th Cir. 1979). We find that,
even absent objection from Appellant, the district court should
have recognized the obvious impropriety of the statement.
C. Did the Error Affect Substantial Rights?
Having found that the statement was "error" that should have
been "plain" to the trial judge, we must address whether the error
affected the Appellant's substantial rights. "[I]n most cases the
affecting of substantial rights requires that the error be
prejudicial; it must affect the outcome of the proceeding." United
States v. Calverley, 37 F.3d at 164. Viewing the statement in the
context of the entire trial, we find that the statement was
prejudicial.
In this case, the prejudicial significance of the statement
was magnified by two factors. First, the error was magnified by
the government's conduct at the trial. As discussed previously,
10
the government itself not only elicited the original hearsay, but
then repeated the excluded evidence in front of the jury. Second,
the error had a more profound effect due to the paucity of evidence
of Appellant's involvement.8
We find that the government's conduct at trial, combined with
the paucity of evidence, magnified the effects of the government's
statement. As a result, we find that the error affected Appellee's
substantial rights.
IV. SUFFICIENCY OF THE EVIDENCE
A. Standard of Review
Convictions must be affirmed if the evidence, viewed in the
light most favorable to the verdict, with all reasonable inferences
and credibility choices made in support of it, is such that any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319 (1979); United States v. Kim, 884 F.2d 189, 192 (5th Cir.
1989). In making this determination, we need not exclude every
reasonable hypothesis of innocence. United States v. Henry, 849
F.2d 1534, 1536 (5th Cir. 1988). Juries are free to use their
common sense and apply common knowledge, observation, and
experience gained in the ordinary affairs of life when giving
effect to the inferences that may reasonably be drawn from the
evidence. United States v. Cruz-Valdez, 773 F.2d 1541, 1546-47
(11th Cir. 1985) (en banc), cert. denied, 475 U.S. 1049 (1986).
B. The Elements
8
See section IV infra.
11
In a narcotics conspiracy prosecution, the government must
prove beyond a reasonable doubt: (1) that an agreement to violate
the narcotics laws existed between two or more persons, (2) that
each alleged conspirator knew of the conspiracy and intended to
join it, and (3) that each alleged conspirator did participate in
the conspiracy. United States v. Medina, 887 F.2d 528, 530 (5th
Cir. 1989). Proof of any element may be by circumstantial
evidence, and "'[c]ircumstances altogether inconclusive, if
separately considered, may, by their number and joint operation, .
. . be sufficient to constitute conclusive proof.'" United States
v. Roberts, 913 F.2d 211, 218 (5th Cir. 1990) (quoting United
States v. Lechuga, 888 F.2d 1472, 1476 (5th Cir. 1989)). As the
Court noted in Marx, "assent to a conspiracy may be inferred from
acts which furthered the purpose of the conspiracy." United States
v. Marx, 635 F.2d 436, 439 (5th Cir. Unit B 1981); see also United
States v. Middlebrooks, 618 F.2d 273, 278 (5th Cir.), cert. denied,
449 U.S. 984 (1980).
In a case brought pursuant to section 841(a)(1), the
government must prove that Appellant knowingly possessed cocaine
with the intent to distribute it. United States v. Molinar-
Apodaca, 889 F.2d 1417, 1423 (5th Cir. 1989). Proof of
constructive possession is sufficient; thus, any showing that the
defendant exercised ownership, dominion, or control of the drugs,
or of the premises on which they are found, will suffice. See
United States v. Diaz-Carreon, 915 F.2d 951, 954-55 (5th Cir.
1990); United States v. Thompson, 700 F.2d 944, 952 (5th Cir.
12
1983).
C. The Evidence
The only evidence tendered by the government to show
Appellant's guilt was:
1) Appellant's beeper containing the phone numbers to
Gonzales' motel room and pager;
2) The quantity of cocaine found in Appellant's boot;9
3) Appellant's wife's driver's license listing her address
in Cleveland, Texas;10
4) Testimony from a DEA agent (accepted as an expert
witness) relating his experience regarding the organization of
drug conspiracies;
5) Testimony from a second DEA agent (not accepted as an
expert witness) and offering his unfounded opinion that a man
as young as Castillo would typically not be trusted with such
a large quantity of cocaine, but that such responsibility
9
The probative value of the cocaine found on Appellant's person
was called into question for two reasons. First, the record
reflects that DEA chemists determined that the cocaine retrieved
from Appellant's boot was 87 percent pure while the 40 kilograms
found in the orange truck was 89.9 percent pure. Appellant asserts
that this discrepancy is proof that the cocaine in his boot did not
come from the larger quantity. Appellee, on the other hand,
asserts that the purity of the samples is sufficiently close so
that an inference could be drawn that the smaller came from the
larger. Second, during cross examination of DEA Agent Foye, the
agent admitted that Appellant might be a cocaine user, thereby
implying--as Appellant argued in his closing--that Appellant
possessed the cocaine for personal use.
10
The DEA believed that a stash of cocaine was being stored in
a house in the vicinity of Conroe and Cleveland, Texas. Appellee
asserts that the driver's license provides a link between Appellant
and the location from which the DEA believed that the 40 kilograms
originated. However, on cross-examination, Agent Barnes admitted
that none of the DEA reports reflected the suspected location of
the house in Cleveland, rather they all indicated that the stash
house was thought to be located in Conroe.
13
would more likely be given to the Appellant;11
6) Fed. R. Evid. 404(b) evidence showing a nine year old
conviction for possession of 28 grams of cocaine.12
At most, the evidence adduced by the government provides a weak
inference of Appellant's involvement in the conspiracy. In
application, however, with the exception of the beeper--which is
admittedly the government's most damaging evidence--Appellant's
cross-examination disclosed deficiencies in the evidence which
further lowered its probative value.
At most, the government provided three pieces of tangible
evidence, the beeper, the small quantity of cocaine, and the
driver's license, plus a nine-year old conviction for possession of
cocaine13 and the testimony of two DEA agents who did little more
than opine that Appellant was the overseer of the transaction.14
11
As noted previously, this testimony was presented without
objection.
12
A Houston police sergeant testified that in 1984 Appellant was
arrested with a small quantity of cocaine and charged with simple
possession. On cross-examination, he testified that he had not
witnessed Appellant or any of his five co-defendants selling drugs
during his 32 hour surveillance of their motel room.
13
While we make no finding whether this evidence was properly
admitted under Fed. R. Evid. 404(b), we note that Appellant was
again caught with a small quantity of cocaine on his person.
Appellant has apparently been charged by the state with possession,
and the simple fact that he has been known to possess small
quantities of cocaine does not necessarily mean that he is involved
in the distribution of larger quantities.
14
While we have no intention or desire to impugn the veracity of
the highly qualified agents who testified in this case, we express
severe reservations regarding the type of opinion testimony that
was permitted. We are especially concerned with the testimony of
Agent Stanfill who testified, without being accepted as an expert
witness and further without foundation or factual basis that "based
on my experience" Appellant controlled the cocaine transaction.
14
The proffered evidence is too attenuated for a reasonable jury to
find Appellant guilty of the conduct charged.15 Simply put, but for
the government's misconduct in this trial Appellant would never
have been convicted.
V. CONCLUSION
For the foregoing reasons, we find that the government's
closing argument constituted plain error requiring reversal of
Appellant's conviction. We further find that the evidence was
insufficient to support his conviction. We REVERSE, VACATE
Appellant's sentence and REMAND the case to the district court with
instructions to enter judgment of acquittal.
15
Cf. United States v. Carrillo-Morales, 27 F.3d 1054 (5th Cir.
1994), cert. denied sub nom., Austin v. United States, ___ U.S.
___, ___ S.Ct. ___, 1994 WL 737587 (1995); United States v.
Mergerson, 4 F.3d 337 (5th Cir. 1993), cert. denied, ___ U.S. ___,
114 S.Ct. 1310 (1993); United States v. Alvarado, 898 F.2d 987 (5th
Cir. 1990).
15