USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1792
UNITED STATES OF AMERICA,
Appellee,
v.
ENRIQUE ROMERO-CARRION,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
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Torruella, Chief Judge,
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Selya and Cyr, Circuit Judges.
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Jose R. Gaztambide for appellant.
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Esther Castro-Schmidt, Assistant United States Attorney, with
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whom Guillermo Gil, United States Attorney, and Jos A. Quiles-
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Espinosa, Senior Litigation Counsel, were on brief for appellee.
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May 9, 1995
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CYR, Circuit Judge. Enrique Romero Carrion appeals the
CYR, Circuit Judge
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judgment of conviction and sentence entered against him for
possessing cocaine with intent to distribute. See 21 U.S.C.
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841(a)(1). Finding no reversible error, we affirm.
I
I
BACKGROUND1
BACKGROUND
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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
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1The relevant facts are recited in the light most favorable
to the verdict. United States v. Tuesta-Toro, 29 F.3d 771, 773
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(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
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A. Sufficiency of the Evidence
A. Sufficiency of the Evidence
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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
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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,
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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.
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denied, 113 S. Ct. 1346 (1993). The jury reasonably could
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conclude that appellant was engaged in countersurveillance at the
scene of the drug exchange, United States v. Munoz, 36 F.3d 1229,
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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
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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
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Cir.) ("criminals rarely welcome innocent persons as witnesses to
serious crimes"), cert. denied, 114 S. Ct. 407 (1993). Finally,
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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-
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ularly eloquent reflection of a guilty mind.") (citation omit-
ted).
B. Motion for Mistrial
B. Motion for Mistrial
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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
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Cir.), cert. denied, 115 S. Ct. 919 (1994).
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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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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
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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
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Suveges v. United States, 7 F.3d 6, 10 (1st Cir. 1993) (upholding
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collateral challenge to enhanced sentence imposed after govern-
ment failed to file 851(a) information).
All courts of appeals which have considered the ques-
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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.
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1993), cert. denied, 114 S. Ct. 884 (1994); United States v.
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Fragoso, 978 F.2d 896, 902 (5th Cir. 1992), cert. denied, 113 S.
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Ct. 1664 (1993); United States v. Housley, 907 F.2d 920, 921-22
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(9th Cir. 1990); United States v. Weaver, 905 F.2d 1466, 1482
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(11th Cir. 1990), cert. denied, 498 U.S. 1091 (1991). Although
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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-
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54 (11th Cir. 1983); United States v. Cevallos, 574 F.2d 854, 855
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(5th Cir. 1978), both courts now subject such omissions to
harmless error review. Weaver, 905 F.2d at 1482; United States
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v. Nanez, 694 F.2d 405, 413 (5th Cir. 1982) (expressly overruling
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Cevallos and applying "harmless error"), cert. denied, 461 U.S.
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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.
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1990) (citations omitted), cert. denied, 500 U.S. 906 (1991); see
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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
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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.
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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;
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Housley, 907 F.2d at 921-22; Weaver, 905 F.2d at 1482. Although
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we agree that 851(e) precludes collateral challenges to the
validity of such time-barred convictions, 851(b) also affords
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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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