United States v. Romero Carrion, 54 F.3d 15, 1st Cir. (1995)
United States v. Romero Carrion, 54 F.3d 15, 1st Cir. (1995)
3d 15
2* BACKGROUND1
3
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 in similarly wrapped one-kilo
packages. Following a three-day jury trial, appellant was convicted and
sentenced to life imprisonment. This appeal ensued.II
DISCUSSION
A. Sufficiency of the Evidence
5
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.1994), cert. denied, --- U.S. ----, 115 S.Ct. 919, 130 L.Ed.2d
799 (1994).
8
A police officer testified that appellant attempted to flee when the police
moved in to arrest the assembled participants. 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 arrests. There was no error in denying the motion for
mistrial.
10 court shall after conviction but before pronouncement of sentence inquire of the
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.
11
21 U.S.C. Sec. 851(b). The government concedes that the district court failed to
comply with section 851(b) but imposed a life sentence nonetheless.
12
13
All courts of appeals which have considered the question presently hold that
failure to engage in the colloquy required by section 851(b) is subject to
"harmless error" analysis. See United States v. Flores, 5 F.3d 1070, 1082 (7th
Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 884, 127 L.Ed.2d 79 (1994);
United States v. Fragoso, 978 F.2d 896, 902 (5th Cir.1992), cert. denied, --U.S. ----, 113 S.Ct. 1664, 123 L.Ed.2d 282 (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, 111 S.Ct. 972, 112 L.Ed.2d
1058 (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, 103 S.Ct. 1884, 76
L.Ed.2d 813 (1983). We are not persuaded to the contrary view urged by
appellant.
14
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, 111
S.Ct. 1686, 114 L.Ed.2d 81 (1991); see Fed.R.Crim.P. 52(a) (harmless error
defined as "any error, defect, irregularity or variance which does not affect
substantial rights"). The error of omission under section 851(b) was harmless in
this case.
15
16
Affirmed.
The 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)
Several courts of appeals have held that Sec. 851(e) moots Sec. 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 Sec. 851(e) precludes collateral challenges to the
validity of such time-barred convictions, Sec. 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