* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 29 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 02-2265
v. (D.C. No. CR-01-735-LH) MARIO ROMERO,

Defendant-Appellant. (D. N.M.)

ORDER AND JUDGMENT *

Before LUCERO , O’BRIEN , and TYMKOVICH , Circuit Judges.

Following an undercover investigation, police arres ted Mario Romero and charged him with conspiracy to distribute more thanfive grams of cocaine base in violation of 21 U.S.C. § 846 (“Count I”), distribut ion of more than five grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) (“Count II”), and use of a telephone to facilitate a drug traffic king offense in violation of 21 U.S.C. § 843(b) (“Count III”).-2-

The jury acquitted Romero on Counts II and III, butconvicted him on the conspiracy charge. During and at the conclusion of his trial, Romero made three motions asking the district court to enter a judgme nt of acquittal, wherein he argued that the evidence presented by the prosecuti on was insufficient to support a conviction. The district court denied all three motions. Our jurisdiction arises pursuant to 28 U.S.C. § 1291. We affirm. I. We review de novo a district court’s denial of a motion challenging t he sufficiency of the evidence to support a conviction

. United States v. Almaraz , 306 F.3d 1031, 1040 (10th Cir. 2002). In doing so we view the evidence and draw all inferences in the light most favorable to the government to determine “whether ‘any rational trier of fact could have fou nd the essential elements of the crime beyond a reasonable doubt.’” United States v. Evans , 318 F.3d 1011, 1018 (10th Cir. 2003) (quoting Jackson v. Virginia , 443 U.S. 307, 319 (1979)). Given this deference to the jury’s weighing of the eviden ce and the credibility of witnesses, the following are the relevant facts of the case viewed most favorably to the government. On November 21, 2000, undercover officer Miguel Men dez and a confidential informant drove to an auto shop where the informant introduced Mendez to Dorian Rios. Mendez told Rios he wanted to buy some crack cocaine.-3-

Rios told Mendez he could supply the drugs, and pro ceeded to make a number of phone calls. The three men then left the shop and attempted to purchase crack at a nearby location, but returned to the shop unsucce ssful. Shortly thereafter, Romero arrived. Rios asked him if he knew anyone w ho would sell them some crack. Romero said he would make some calls and me ntioned the name “Sonya,” a possible source of cocaine previously mentioned t o Officer Mendez by one of the other co-conspirators. The group then went to lunch, where Romero told the m that he did not sell drugs because he was a family man, but that he did occasionally use them with Rios. Romero then asked Mendez how much an ounce o f crack usually cost and Mendez replied that it could be anywhere from $600 to $1000. As the group left the restaurant, Romero told Mendez that he and Rios would get him the crack. Mendez and the informant then left, promising to re turn to the shop later in the afternoon. When Mendez arrived, Rios appeared upset, and told Mendez he had not been able to find any crack. Meanwhile, Ro mero returned to the shop and started working on the transmission of a truck. Sh ortly thereafter he received a phone call, and Mendez testified that he heard Rome ro ask, “Do you have it?” and then say, “Okay, I will send them over there.” Rom ero then hung up and told Mendez and Rios, “You guys go over there. She’s go t it.”-4-

Mendez refused to ride in Rios’s truck, but insteadgave Rios $850 and Rios went alone to buy the cocaine. Rios did not s ay exactly where he went or who sold him the drugs, but he returned a short tim e later with approximately 18.5 grams of crack. Mendez took the drugs and then gav e Rios $50 for setting up the deal. He did not pay Romero for his role in the de al. II. To support a conviction of conspiracy to distribute cocaine, the government must show that (1) two or more persons, including the defendant, agreed to violate the law; (2) the defendant knew the essenti al objective of the conspiracy; (3) the defendant knowingly and voluntarily became part of the conspiracy; and (4) the alleged co-conspirators were interdependent

. United States v. Ivy , 83 F.3d 1266, 1285 (10th Cir. 1996) (quotations and citatio ns omitted). A jury may reasonably conclude that two or more peo ple agreed to commit a crime based on “the acts of the parties and othercircumstantial evidence indicating concert of action for the accomplishmentof a common purpose.” United States v. Johnson , 42 F.3d 1312, 1319 (10th Cir. 1994). The jury al so “may presume a defendant is a knowing participant i n the conspiracy when he or she acts in furtherance of the objective of the con spiracy.” United States v. Carter , 130 F.3d 1432, 1440 (10th Cir. 1997). Interdepen dence is established-5-

when “each coconspirator’s activities constitute es sential and integral steps toward the realization of a common, illicit goal.” Id

. Evidence presented at trial showed that on the day of Romero’s arrest he and Rios discussed how to find crack for Mendez, an d Romero agreed to make phone calls to help further the transaction. Rios had tried repeatedly to get the drugs for Mendez, but was unsuccessful until Romero made and received at least two phone calls. Following these calls, Romero tol d Rios and Officer Mendez: “You guys go over there. She’s got it.” Rios left with $850 provided to him by Officer Mendez and returned a few minutes later wit h 18.5 grams of crack. Viewing this evidence in the light most favorable t o the government, we conclude that the jury could have reasonably found that Romero knowingly joined a conspiracy to sell cocaine and that the other participants in the conspiracy were dependent on him to complete the sale. Though the prosecution’s case was based largely on the testimony of a single witness (Offic er Mendez), and Romero presented evidence contradicting much of that witne ss’s testimony, “we do not weigh conflicting evidence or consider witness cred ibility, as these duties are delegated exclusively to the jury.” Evans , 318 F.3d at 1018. We therefore conclude that the evidence was sufficient to support Romero’s conviction and the district court did not err in denying his motions f or judgment of acquittal.-6- III. In addition to urging us to reconsider conflicting evidence presented at trial, Romero argues that the jury, in acquitting h im of Counts II and III, appears to have issued verdicts that are logically inconsis tent with his conviction on Count I. That is, if the jury found that Romero wa s not guilty of using the telephone to facilitate drug trafficking, as allege d in Count III, he could not have been an integral part of the conspiracy as required for conviction on Count I, because most of his participation was in making andreceiving phone calls. As Romero acknowledges, however, it has long been s ettled that inconsistent verdicts do not provide the basis for reversal of a conviction. See United States v. Powell , 469 U.S. 57, 68-69 (1984); United States v. Galbraith , 20 F.3d 1054, 1058 (10th Cir. 1994). Romero insists that although Powelland Galbraith clearly hold that inconsistent verdicts do not compel a reversal of the conviction, this Court should consider a new standard where not guilty verdicts are viewed “as one factor contributing to the tenu ousness of the guilty verdict.” But whether the inconsistent verdicts do indeed sug gest that the guilty verdict is tenuous does not affect our review of th e evidence supporting that verdict. See Powell , 469 U.S. at 64-65 (quoting Dunn v. United States , 284 U.S. 390, 393 (1932) (“‘[t]he most that can be said . . . is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real-7-

conclusions, but that does not show that they were not convinced of the defendant’s guilt’”). The standard for our review remains as stated in Evans : Viewing the evidence in the light most favorable to the government, could “‘any rational trier of fact . . . have found the essenti al elements of the crime beyond a reasonable doubt?’” 318 F.3d at 1018 (quoting Jackson v. Virginia , 443 U.S. 307, 319 (1979) (emphasis omitted). As the PowellCourt stated, “a criminal defendant already is afforded protection against jury irratio nality or error by the independent review of the sufficiency of the evidence undertake n by the trial and appellate courts. . . . This review should be independent of the jury's determination that evidence on another count was insufficient.” 469 U .S. at 67. The jury’s acquittal verdicts on Counts II and III therefore are irrelevant to our review of the evidence supporting the guilty ve rdict on Count I. Because our independent review shows that the evidence at trial was sufficient to support that verdict, we affirm.

Entered for the Court: TIMOTHY M. TYMKOVICH Circuit Judge