Revised April 8, 1999

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-41346

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RENE DE LA ROSA,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

March 24, 1999

Before REYNALDO G. GARZA, POLITZ, and BARKSDALE, Circuit Judges.

POLITZ, Circuit Judge:

This appeal poses the question whether a trial court abused its discretion by

refusing to admit evidence or advise the jury of a defendant’s prior acquittal on a

related charge. Additionally, we are asked to determine whether sufficient

evidence supported the conviction. We conclude that neither of the challenged

rulings constitutes an abuse of discretion and that the conviction is adequately1 18 U.S.C. § 2 provides in pertinent part:

Whoever commits an offense against the United States or aids, abets, counsels,

commands, induces or procures its commission, is punishable as a principal. . . .

2 18 U.S.C. § 371 provides in pertinent part:

If two or more persons conspire

. . . to commit any offense against the United States

. . . and one or more of such persons do any act to effect the object of the conspiracy, each

shall be [punished]. . . .

3 18 U.S.C. § 1503 provides in pertinent part:

Whoever corruptly

. . . endeavors to influence, intimidate, or impede any grand or

petit juror . . . in the discharge of his duty . . . shall be punished. . . .

4 18 U.S.C. § 3 provides:

Whoever, knowing

that an offense against the United States has been committed,

receives, relieves, comforts or assists the offender in order to hinder or prevent his

apprehension, trial or punishment, is an accessory after the fact.

2 supported by the evidence.

BACKGROUND

Rene De La Rosa was charged with: (1) conspiracy to influence James

Almaraz, a petit juror who was serving in the trial of Javier Lopez Cantu, in

violati o n of 18 U.S.C. §§ 2, 1 371 2 (Count One); (2) aiding and abetting the

in f luencing of Almaraz in violation of 18 U.S.C. §§ 2, 1503 3 (Count Three); and

(3) being an accessory after the fact to Cantu, in violation of 18 U.S.C. § 3 4 (Count

Five). De La Rosa’s co-defendants, Bobby Herrera (Cantu’s cousin) and Jennifer

Esparza (He rrera’s girlfriend) pleaded guilty on related charges. Cantu was

ultimately convicted f

or his involvement in a marihuana smuggling and money

laundering operation.5 During oral argument, De La Rosa’s counsel affirmatively represented to the court

that the government expre ssly referred to a conspiracy of which De La Rosa was a part.

After some probing by the court, defense counsel equivocated. We have reviewed the record

with great care and were unable to find a single instance when the government, in the jury’s

presence, used the term conspiracy. To the extent defense counsel stated or implied the

contrary, and we be lieve he did both, we are troubled. Counsel, particularly one who

represented De La Rosa at trial, should know the record; but if he does not, he sh ould

candidly acknowledge such.

6 See United States v. Hanson , 161 F.3d 896 (5 th Cir. 1998).

3 The jury acquitted De La Rosa of Count One and deadlocked 11 to 1 in favor

of conviction on Counts Three and Five. Prior to the second trial, the government

filed a motion in limine seeking to exclude the evidence of acquittal on Count One,

the conspiracy charge. Over De La Rosa’s objection, the trial court granted the

governm ent’s motion. At no time during the second trial did the government

suggest to the jury that there had been a prior trial or mention any alleged

conspiracy. 5

The followi ng evidence, viewed in the light most favorable to the jury

verdict, was introduced at trial. 6 De La Rosa was involved in drug trafficking with

Cantu. During Cantu’s trial, which he attended with Herrera, De La Rosa

recognized one of the jurors

-- A lmaraz -- as a former high school classmate.

Subsequently, Herrera discovered that Esparza was friends with Almaraz’s

girlfriend, Diana Do rado. Believing that their connections with Almaraz would

make him a good candidate for bribery, De La Rosa and Herrera decided to offer7 The spelling of this name varies depending on whether one looks to the transcript,

the government’s brief, or De La Rosa’s brief. We adopt the spelling used in the transcript.

8 It is unclear from the record whether De La Rosa co-owned or co-managed the café.

9 See Miranda v. Arizona , 348 U.S. 436 (1966).

4 Almaraz $5,000 to $10,0 00 in exchange for a vote of acquittal in Cantu’s trial.

Erica Ureste, 7 Dorado’s co-worker, offered to speak to Almaraz on Cantu’s behalf.

Herrera instructed Ureste to relay the bribe to Almaraz and informed De La Rosa

of the arrangement; De La Rosa requested that he be kept abreast of the events to

follow.

Dorado, at Ur este’s request, conveyed the offer of the bribe to Almaraz as

they headed toward a café co-owned or co-managed 8 by De La Rosa. At the café,

De La Rosa followed Almaraz into a rest room and offered him a bribe (a future

favor) to which Almaraz appeared receptive. Then, De La Rosa ordered his

waitress to write off Almaraz’s tab and advised her that Almaraz’s next meal would

also be on the house. During the course of the evening, De La Rosa contacted

Herrera by phone on several occasions and told Herrera that he had offered a bribe

to Almaraz.

The next day Almaraz reported the offer of the bribe to the U.S. Marshal’s

deputies. Subsequently, De La Rosa was arrested. He waived his M iranda 9 rights

and told a federal agent several conflicting and false accounts. First, De La Rosa5

c laimed not to know Almaraz; then he equivocated and admitted to possib l y

knowing him by sight; finally, he admitted that he recognized Almaraz as a juror

serving in Cantu’s trial and that he was acquainted with Almaraz. Second, De La

Rosa claimed not to have worked at the café on the night Almaraz dined there and

denied picking up Almaraz’s tab; he now concedes writing off the bill. Third, he

denied speaking to Almaraz, but later conceded that they engaged in idle chatter.

Finally, De La Rosa claimed that he had only limited contact with Cantu.

De La Rosa was convicted on both coun ts and was sentenced to serve

concurrent terms of 108 months on each count. He now appeals, contending that

the trial court committed reversible error by refusing to allow evidence that he was

acquitted on the conspiracy count and by failing to instruct the jurors that they

should consid er the evidence suggesting a conspiracy in light of that acquittal.

Further, he contends that the evidence was insufficient to support his conviction as

to either count.

ANALYSIS

I. Standard of Review.

We review for abuse of discretion a trial court’s decision to exclude evidence10 See United States v. Polasek , 162 F.3d 878 (5 t h Cir. 1998); United State s v.

Jensen , 42 F.3d 946 (5 th

Cir. 1994).

11 United States v. D uncan , 919 F.2d 981, 990 (5 t h Cir. 1990). F or purposes of

today’s decision, we assume that De La Rosa properly preserved his objectio n to the jury

charge.

12 See United States v. Crow , 164 F.3d 229 (5 th Cir. 1999).

13 See United States v. Millsaps , 157 F.3d 989 (5 th Cir. 1998).

6 and its refusal to give proposed jury instructions. 10 A trial court’s failure to deliver

a requested jury instruction constitutes reversible error if the instruction: “(1) was

substantially correct; (2) was not substantially covered in the charge delivered to

the jury; and (3) concerned an important issue so that the failure to give it seriously

impaired the defendant’s ability to present a given defense.” 11 I f, howe ver, the

defendant failed properly to preserve his objecti on to the jury charge, the plain

error standard appli es. 12 I n reviewing a challenge to the sufficiency of the

evidence, we must determine whether a rational trier of fact could have found that

the evidence, viewed in the light most favorable to the government, established

guilt beyond a reasonable doubt. 13

II. Evidence of Prior Acquittal.

We have squarely held that, as a general matter, a trial court does not abuse

its discretion in excluding evidence of a prior acquittal on a related charge. In14 643 F.2d 299 (5 th Cir. Unit B 1981).

15 Id. at 300-01 (internal quotations and citations omitted).

16 United States v. Sutton

, 732 F.2d 14 83, 1492 (10 t h Cir. 1984) (quoting United

States v. Viserto , 596 F.2d 531, 537 (2d Cir. 1979)).

7 United States v. Kerley

, 14 the defendant, an officer in the sheriff’s department,

repeatedly struck an individual hel d in custody. A state jury acquitted the

defendant on a batter y charge, and the defendant attempted to introduce this

evidence in a federal trial arising from the same incident. The trial court refused

to admit the prior acqui ttal, and the defendant urged that the exclusion of the

evidence required reversal. We pointed out the fallacies behind this argument.

Altho ugh a judgment of acquittal is relevant with respect to the issues of

double jeopardy and collateral estoppel, once it is determined that these pleas

in bar have been rejected, a judgment of acquittal is not usually admissible

to rebut inferences that may be drawn from the evidence admitted.

. . . [E]vidence of

a prior acquittal is not relevant because it does not prove

innocence but rather merely indicates that the prior pro secution failed to

meet its burden of proving beyond a reasonable doubt at least one element

of the crime. 15

Furthermore, “‘a j u dgment of acquittal is hearsay’” not otherwise exempt

“‘from the operation of the hearsay rule.’” 16 And, even if not for these barriers to

admissibility, evidence of a prior acquittal will often be excludable under Fed. R.

Evid. 403, because its probative value likely will be “substantially outweighed by17 Fed. R. Evid. 403; Kerley , 643 F.2d at 301.

18 See, e.g., United States v. Marrero-Ortiz

, 160 F

. 3d 768 (1 st Cir. 1998); United

States v. Jones

, 808 F.2d 561 (7 th Cir. 1986); Prince v. Lockhart

, 97 1 F.2d 118 (8 t h Cir.

1992); United States v. Irvin

, 787 F.2d 1506 (11 th Cir.1986); United States v. Thomas

, 114

F.3d 228 (D.C. Cir. 1997).

19 See

, supra

, nn. 16 & 18. Recently, we reaffirmed our holding in K erley that

“‘evidence of a prior acquittal is not relevant because it does not prove innocence.

. . .’”

United States v. Posada-Rios

, 158 F.3d 832, 862 n.13 (5 th Cir. 1998) (quoting Kerley

, 643

F.2d at 300-01).

20 We no te that a lawyer is duty bound to apprise the court of binding authority

“ directly adverse to the position of his client . . . unless his adversary has done so.”

Douglass v. Delta Air Lines, Inc.

, 897 F.2d 1336, 1344 n.16 (5 th Cir. 1990) (quoting Texas

Code of Professional Responsibility, Ethical Consideration 7-23). Zealous representation

does not include skirting ethical obligations.

8 the danger of prejudice, confusion of the issues, or misleading the jury.” 17 Other

cir cuits overwhelmingly agree that, for all the reasons enumerated, evidence of

prior acquittals are generally inadmissible. 18 There are seven sister circuits that

have, in varying contexts, endorsed this view

-- the First, Second, Seventh, Eighth,

Tenth, Eleventh, and DC Circuits. 19 We are aware of no contrary authority.

De La Rosa has advanced no claim of double jeopardy or collateral estoppel

to support admission of his prior acquittal. Nor does he suggest any justification

for departing from the norm in his case; the only grounds he offers for admitting

evidence of his acquittal are those that are foreclosed by our precedent, supported

by the authority from our sister circuits. De La Rosa fails even to acknowledge --

let alone distinguish -- this vast body of authority. 2021 493 U.S. 342 (1990).

22 United States v. Smith , 145 F.3d 458, 461 (1 st Cir. 1998).

23 Id.

24 Id.

25 Id. at 462 (citing United States v. Tirrell

, 1 20 F.3d 670 (7 t h Cir. 1997); United

States v. Riley , 684 F.2d 542 (8 th Cir. 1982)).

9 III. Instruction of Prior Acquittal.

De La Rosa complains of the trial court’s failure to instruct the jury of his

prior a cquittal. In support of his position he cites to one and only one authority,

Dowling v. United States. 2 1 We agree with our First Circuit colleagues that this

case “cannot bear the weight [De La Ros a] assigns to it.” 2 2 As our colleagues

observed in United States v. Smith

, 23 “ Dowling does not require that the jury be

told of an acquittal.” Indeed, Dowling does not even address the issue. 24

Given the absence of intervening or controlling authority, this panel declines

to ignore Kerley

, and the rulings by our sister circuits, as De La Rosa suggests. We

join with the First, Seventh, and Eighth Circuits in holding that an acquittal

instruction is not required merely because evidence of acquitted conduct is

introduced. 25 We entrust that matter, in the first instance, to the sound discretion

of the trial court. In the case at bar, in refusing the charge, we perceive no abuse

of discretion by the trial judge.26 See United States v. Williams , 874 F.2d 968 (5 th Cir. 1989).

27 See United States v. Fierro , 38 F.3d 761 (5 th Cir. 1998).

28 See United States v. Triplett , 922 F.2d 1174 (5 th Cir. 1991).

10 IV. Sufficiency of the Evidence.

We turn now to the last point of contention: De La Rosa’s claim that neither

Count Three nor Count Five was supported by sufficient evidence.

To show a violation of 18 U.S.C. § 1503 (endeavoring to influence a juror in

the discharge of his du ty), the government must prove: (1) that a judicial

proceeding was pending; (2) that the defendant had kn owledge of the judicial

proceed ing; and (3) that the defendant acted corruptly with the specific intent to

influence, obstruct, or impede that proceeding in its due administration of justice. 26

To show a violation of 18 U.S.C. § 2 (aiding and abetting), the government must

prove: (1) that the defendant associated with a c riminal venture; (2) that he

participated in the criminal venture; and (3) that the defendant sought by action to

make that venture successful. 27 To show a violation of 18 U.S.C. § 3 (being an

accessory after the fact), the government must pr ove: (1) the commission of an

underlying offense against the United States; (2) the defendant’s knowledge of that

offense; and (3) assistance by the defendant in order to prevent the apprehension,

trial, or punishment of the offender. 2829 United States v. Bermea , 30 F.3d 1539, 1552 (5 th Cir. 1994).

30 United States v. Mathes , 151 F.3d 251, 252 (5 th Cir. 1998).

31 See United States v. Miller , 146 F.3d 274 (5 th Cir. 1998).

11 De La Rosa contends that no reasonable juror could have concluded beyond

a reasonable doubt that he acted with the requisite int ent or that he attempted to

influence Almaraz. In so positing, De La Rosa asserts that Almaraz’s testimony

was incredible; he focuses on unimportant inconsistencies between the account of

Almaraz and that of other witnesses with respect to the details surrounding De La

Rosa’s decision to write off Almaraz’s tab. Besides the insignificance of the

purported conflicts in testimony, we would not disturb a jury verdict when to do so

would require a second-guessing of the jury’s assessment of witness credibility.

We may declare witness testimony incredible as a matter of law only if it “relate[s]

to facts that the witness could not possibly have observed or to events which could

not have o ccurred under the laws of nature.” 2 9 Otherwise, it is not our role “to

weigh the evidence or to determine the credibility of the witnesses.” 30 So long as

a jury’s decision to convict was rational, that decision will stand. 31

T his appeal does not present even a close call on this issue. Almaraz’s

testimony was not incredible as a matter of law and his tes timony, coupled with

that of other witnesses produced by the government, was more than sufficient to12

demonstrate guilt beyond a reasonable doubt on all elements of Counts Three and

Five. As recounted in more detail above, the government introduced evidence that:

De La R osa assisted Cantu in his drug business; he attended Cantu’s trial; he

discussed bribing Almaraz wit h Herrera and Esparza; he promised Almaraz a future

favor i n return for a vote of innocence in Cantu’s trial; he picked up Almaraz’s

meal ticket and promised to do so again on Almaraz’s next visit; he informed

Herrera that he offered Almaraz a bribe; and he gave a law en forcement official

several internally inconsistent and false accounts of the facts pertinent to the bribe.

Given this evidence, the jury acted within its sworn duty and authority in

convicting De La Rosa on Counts Three and Five.

For these reasons, the convictions and sentence s of Rene De La Rosa are

AFFIRMED.