
USCA1 Opinion

	




                            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.                                           2          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                                          3          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               ____________________                                          4                    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.                                            7
