United States v. Romero Carrion

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.

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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

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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

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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.

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