UNITED STATES COURT OF APPEALS

for the Fifth Circuit

_____________________________________

No. 93-2722

_____________________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JOSE REGOLO FLORES-CHAPA,

Defendant-Appellant.

______________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

______________________________________________________ (March 10, 1995)

Before REAVLEY, DUHÉ and PARKER, Circuit Judges.

DUHÉ, Circuit Judge:

Appellant Jose Regolo Flores-Chapa appeals from the jury's

verdict finding him guilty of conspiracy to possess with intent to

distribute in excess of 5 kilograms of cocaine and aiding and

abetting possession with intent to distribu te in excess of 5

kilograms of cocaine, in violation of 21 U. S.C. §§ 841(a)(1),

(b)(1)(A) and 18 U.S.C. § 2. For the reasons set forth below, we

reverse and remand with instructions.

I. PROCEDURAL BACKGROUND

Jose Regolo Flores-Chapa (Appellant), Mario Gonzales

(Gonzales) and Juan Jo se Castillo (Castillo) were indicted in a

t wo-count indictment charging them with the crimes noted ab ove.

Gonzales and Castillo pleaded "guilty" and Appellant pleaded "not

guilty" and was found guilty on both counts.1 U nknown to Gonzales, the van was actually a DEA undercover

vehicle.

2 Appell ant raises four points of error on appeal: 1) The

evidence was insufficient to prove guilt beyond a reasonable doubt;

2) The district court abused its discretion by failing to grant a

mistrial after the government referred to previously excluded

evidence befo re the jury; 3) The district court abused its

discretion under Fed. R. Evid. 404(b) by allowing the government to

introduce evidence of Appellant's prior drug conviction; 4) The

government co mmitted plain error when it referenced excluded

evidence in its closing argument. Because we find the government's

closing argument--when combined with the previous improper

statements--constituted plain error requiring reversal and that the

admissible evidence was insufficient to sustain the conviction, we

do not decide the remaining issues.

II. FACTS

In April of 1993, a confide ntial informant (CI) advised the

Drug Enforcement Administration (DEA) of a pending cocaine

transaction at the Marriott Hotel located at the Intercontinental

Airport in Houston. Under DEA supervision, the CI agreed to

purchase 40 kilograms of cocaine at a price of $16,500 per

kilogram. The CI understood that the cocaine would be delivered

b y Mario Gonzales. On April 2, 1993, Mario Gonzales flew to

Houston from his home in Roma, Te xas. As agreed, the CI met

Gonzales at the airport, and gave him the keys to a van. 1 Gonzales

left the airport in the van and was followed by the DEA to an3

Econolodge motel. Gonzales testified that the arrangements for the

delivery of the cocaine were made by a man named Ramirez, who was

also from Roma.

Delivery was to be made at a prearranged site in Houston by a

young man driving an orange pick-up. To confirm his readiness to

take delivery, Gonzales had been instructed to call either a pager

or a residence telephone number. He first tired to call the pager,

but discovered that the hotel telephone system would not allow

calls to be placed to a pager. Next, Gonzales called the residence

number, and a woman informed him that "no one was there." He gave

the woman his telephone and room numbers, and asked her to call the

pager. After waiting unsuccessfully for a return call, he left for

the designated meeting site--a Chevron gas station--followed

closely by the DEA. At the station, Gonzales began to call the

pager, but decided not to when he discovered that the public phone

would not receive incoming calls. Instead, Gonzales again phoned

the residence, and a woman informed him that the orange truck was

on its way.

A short time later, Juan Castillo pulled into the station

driving an orange, 1981 Ford pick-up. Castillo and Gonzales traded

keys, and Gonzales told Castillo that he would cal l when he was

ready to exchange the pick-up for the van. At this point, the DEA

surveillance team divided. Part of the team followed Gonzales in

the orange pick-up back to the Marriott, while the remaining agents

followed Castillo in the DEA van. After returning to the Marriott,

Gonzales met the CI and took him to the orange pick-up. Gonzales4

opened a built-in tool box in the truck bed, and showed the CI the

cocaine. As Gonzales closed the tool box, the CI gave the DEA

surveillance team a pre-arranged signal, and Gonzales was arrested.

In the meantime, the other DEA surveillance team followed

Castillo to the Arbor Oaks Apartments--lo cated almost directly

across the street from the Chevro n station. After this

surveillance team learned that Gonza les had been arrested, they

obtained Castillo's apartment number from the apartme nt manager,

and proceeded to his apartment. The agents were greeted at the

door by Alma Flores (Mrs. Flores) and Esmeralda Castillo (Mrs.

Castillo). Mrs. Flores and Mrs. Castillo confessed to ownership of

the truck, and gave the agents permission to search the apartment.

After enterin g the apartment, the agents conducted a

"protective s weep," and discovered Castillo sitting on a bed

watching T.V. Castillo was escorted to the front porch where he

was interviewed by some of the agents. As a result of the

interview, the focus of the investigation shifted to the Appellant.

In addition to Mrs. and Mr. Castillo, the agents discovered that

Appellant and his wife Mrs. Flores (the parents of Esmeralda) also

occupied the apartment.

Several agents remained at the ap artment to continue

surveillance, while the rest transported Castillo to the Harris

County Jail. Shortly after the agents transporting Castillo

departed, Appellant returned and was immediately arrested. While

searching Appellant, an agent discovered a small quantity (11.8

grams) of cocaine in his boot and a pager on his person. The agent2 37 F.3d 160 (5th Cir. 1994)(en banc).

5 was able to retrieve three telephone numbers from Castillo's pager.

One of the numbers matched the phone number and roo m number of

Gonzales' room at the Econolodge. Another number corresponded to

Gonzales' pager. The identity of the third number was not

disclosed.

III. IMPROPER ARGUMENT

During the course of the trial, the district court ruled that

certain testimony adduced by the government was inadm issible and

instructed the jury to disregard the testimony. Nevertheless, the

government made reference to the excluded testimony during

examination of the very next witness. Defendant again objected and

moved for a mistrial. The court denied the mistrial, admonished

the government at the bench and instructed the jury that the

lawyer's statements were not evidence. Despite two sustained

objections, a specific warning to government counsel and two

specific instructions to the jury , the government again made

reference to the excluded testimony during its closing ar gument.

Appellant asserts that this g overnment conduct deprived him of a

fair trial.

Appellant objects to the government's closing for the first

time on a ppeal, therefore, we review for plain error. Under our

rec ent e n banc decision in United States v. Calverley

, 2 we review

for plain error using a three-part test. First, there must be3 Id . at 162.

4 Id

.

5 Id . at 164.

6 In the government's rebuttal argument a similar statement was

made, "That's what's happened here. The father-in-law is telling

the son-in-law, `Got the page. Take the drugs. ' He does, and

they're arrested." (emphasis supplied). While Appellant fails to

raise this statement on appeal, it provides further indicia of how

the error was magnified by the government's conduct throughout the

trial.

6 error, 3 next, that error must be plain, 4 and finally, the error must

affect substantial rights. 5

Our analysis must begin with the allegedly object i onable

statement. Appellant complains of the following portion of the

government's closing,

He [Appellant] gets the pager message from his wife,

everything--he's ready to go, he thinks the-- the broker

says everything is ready, he send s his son-in-law with

the dope

. Son-in-law arrives, makes the exchange, and

unfortunately for them, good for us, he's making it under

DEA supervision. He is arrested.

(emphasis supplied). 6

A. Was there Error?

Without question, the government's statement during its

closing constituted error. The impropriety of the statement is

keyed to the district c ourt's initial ruling finding certain

hearsay evidence inadmissible. Therefore, we must first examine

the court's initial ruling.

The original hearsay evidence was addu ced during direct

examination of DEA Agent Cheryl Roberts:

A. He [Castillo] stated that he was driving the orange

truck. He was--he picked it up. His father-in-law7 Appellant objected on the basis that Castillo's statement was

made post-arrest, and therefore, if a conspiracy involving FloresChapa existed, the statement was made after the conspiracy had

ended, and therefore was not admissible under Fed. R. Evid.

801(d)(2)(E). The district court sustained the objection.

7 [Flores-Chapa] told him to pick it up at a store and

drive it to the Chevron station

.

(emphasis supplied). Appellant immediately objected to the hearsay

testimony. The district court sustained the objection and

instructed the jury to disregard Roberts' answer. 7 However, during

direct examination of the very next witness, the following exchange

occurred:

MR. GARCIA [for Appellant]: Your Honor, before we

get into a situation of something that he shouldn't

testify to, I think perhaps he should be admonished

regarding the statement we just approached the bench

about.

M M M M

MR. MAGLIOLO [for Government]: Your Honor, I

instructed the witness as per your prior ruling not to go

into what Mr. Castillo said about who told him to drive

the truck . He's already been instructed.

MR. GARCIA: Your Honor, may I approach the bench?

THE COURT: Yes.

(Discussion at Bench as Follows:)

MR. GARCIA: At this time the defendant would move

for a mistrial. The Government just made a statement

into the record reciting the very state ment that the

Court has just said is not admissible. The record would

speak for itself that Mr. Magliolo just said- -you told

him not to get into the statement and then he read--he

recited the statement for the jury in open court. And I-

-

COURT: I'm going to deny the motion because the

previous witness, Roberts, already answered the same question, and I have instructed the jury to disregard it.8 Just a minute. I will instruct the Government not

to go into any type of conduct like that

.

And you [Garcia] need to make objections to

particular questions. I don't know yet whether you

objected to the last question asked this witness.

MR. GARCIA: I am objecting. The problem is that

they are blurting it out before a question is asked. In

other words just going on a narrative, Judge. And I'll--

I'm having to deal with that.

THE COURT: You need to object when the question

is asked. Not after the question has been answered. Are

you objecting to that question?

MR. GARCIA: Yes, I am.

THE COURT: All right. The objection is

sustained.

(In Open Court)

MR. GARCIA: I will ask the Court instruct the

jury to disregard Mr. Magliolo's statements, and instruct

them that whatever he says is not evidence, Judge.

COURT: The jury will disregard any comments made

by the prosecutors or the defense lawyer. I will

instruct you later that what the lawyers say is not

evidence.

What you may consider as evi dence is what the

witnesses say under oath, unless I told you to disregard

anything that the witness has said, and such written

exhibits, if any, that I admit.

What the lawyers say is not evidence and should not

be considered by you for any purpose.

(emphasis supplied).

The government contends that the questioned statement was not

made in reference to the excluded evidence, but rather was a fair

comment on the testimony of DEA agents Donald Barnes and Kevin

Stanfill. Agent Barnes was accepted by the district court as an

e xpert witness. He testified regarding the general structure of9

drug organizations, sta t ing that drug organization were often

comprised of family members and usually had an "overseer" or

"broker" who arranged or monitored the transaction.

Agent Stanfill was not offered or accepted as an expert, and

basically acted as a fact witness recounting the events of the drug

transaction. He did not mention Appellant during direct

examination, and admitted on cross-examination that he had no

indication of Appellant's involvement with the transaction until he

saw Appellant at the DEA office after his arrest. Nonetheless, on

redirect examination, the following exchange occurred,

Q. Agent Stanfill, based on your experience as a DEA

agent, are the only people involved in a drug conspiracy

the people that are arrested at the scene of the crime?

A. No, sir.

Q. All right. And would it be fair to say that someone

was in control of the Houston end of this 40 kilos?

A. Yes, sir.

Q. And if it wasn't the 19-yea r-old, 20-year-old Mr.

Juan Castillo, who would it be?

A. I would think it would be Mr. Chapa, sir, based on

my experience

.

(emphasis supplied). No objection was made to this testimony.

While both agents expressed their opinion that Appellant was

a member of the conspiracy and in charge of the cocaine, neither

agent opined or inferred that Appellant instructed Cast illo to

drive the truck to the meeting site. Therefore, the government's

statement can only be regarded as a direct reference to the

testimony that the dist rict court had specifically excluded.

Acceptance of the statement was therefore error.10

B. Was it Plain?

As we set out in Calverley

,

T he Supreme Court has taught repeatedly that "plain"

errors are errors which are "obvious," "clear," or

readily apparent;" they are errors which are so

conspicuous that "th e trial judge and prosecutor were

derelict in countenancing [them], even absent the

defendant's timely assistance in detecting [them]."

United States v. Calverley

, 37 F.3d at 163 (footnotes omitted). As

discussed previously, the government's statement cannot be read to

be anything other than a comment on the excluded evidence. We also

recognize that while the Appellant could and indeed should have

objected, he would have done so with the risk of calling

additional, and unwanted, attention to the remark. S ee e.g. United

States v. Garza

, 608 F.2d 659, 666 (5th Cir. 1979). We find that,

even absent objection from Appellant, the district court should

have recognized the obvious impropriety of the statement.

C. Did the Error Affect Substantial Rights?

Having found that the statement was "error" that should have

been "plain" to the trial judge, we must address whether the error

affected the Appellant's substantial rights. "[I]n most cases the

affecting of substantial rights requires that t he error be

prejudicial; it must affect the outcome of the proceeding." U nited

States v. Calverley

, 37 F.3d at 164. Viewing the statement in the

context of the entire trial, we find that the statement was

prejudicial.

In this case, the prejudicial sig nificance of the statement

was magnifi ed by two factors. First, the error was magnified by

the government's conduct at the trial. As discussed previously,8 See section IV infra

.

11

the government itself not only elicited the original hearsay, but

then repeated the excluded evidence in front of the jury. Second,

the error had a more profound effect due to the paucity of evidence

of Appellant's involvement. 8

We find that the government's conduct at trial, combined with

the paucity of evidence, magnified the effects of the government's

statement. As a result, we find that the error affected Appellee's

substantial rights.

IV. SUFFICIENCY OF THE EVIDENCE

A. Standard of Review

Convictions must be affirmed if the evid ence, viewed in the

light most favorable to the verdict, with all reasonable inferences

and cr edibility choices made in support of it, is such that any

rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt. J ackson v. Virginia

, 443 U.S.

307, 319 (1979); United States v. Kim

, 884 F.2d 189, 192 (5th Cir.

1989). In making this determination, we need not exclude every

reasonable hypothesis of inno cence. U nited States v. Henry

, 849

F.2d 1534, 1536 (5th Cir. 1988). Juries are free to use their

common sense and apply co mmon knowledge, observation, and

experience gained in the ordinary affairs of life when giving

effect to the inferences that may reasonably be drawn from the

evidence. U nited States v. Cruz-Valdez

, 773 F.2d 1541, 1546- 4 7

(11th Cir. 1985) (en banc), cert. denied , 475 U.S. 1049 (1986).

B. The Elements12

In a narcotics conspiracy prosecution, the government must

prove beyond a reasonable doubt: (1) that an agreement to violate

the narcotics laws existed between two or more persons, (2) that

each alleged conspirator knew of the conspiracy and intended to

join it, and (3) that each alleged conspirator did participate in

the conspiracy. U nited States v. Medina

, 887 F.2d 528, 530 (5th

Cir. 1989). Proof of any element may be by circumstantial

evidence, and "'[c]ircumstances altogether inconclusive, if

separately considered, may, by their number and joint operation,

.

. . be sufficient to constitute conclusive proof.'" United States

v. Roberts

, 913 F.2d 211, 218 (5th Cir. 1990) (quoting United

State s v. Lechuga , 888 F.2d 1472, 1476 (5th Cir. 1989)). As the

Court noted in Marx , "assent to a conspiracy may be inferred from

acts which furthered the purpose of the conspiracy." U nited States

v. Marx

, 635 F.2d 436, 439 (5th Cir. Unit B 1981); see also United

States v. Middlebrooks

, 618 F.2d 273, 278 (5th Cir.), cert. denied

,

449 U.S. 984 (1980).

In a case brought pursuant to section 841(a)(1), the

g overnment must prove that Appellant k nowingly possessed cocaine

with the intent to distribute it. U nited States v. MolinarApodaca

, 889 F.2d 1417, 1423 (5th Cir. 1989). Proof of

constructive possession is sufficient; thus, any showing that the

defendant exercised ownership, dominion, or control of the drugs,

or of the premises on which they are found, will suffice. S ee

United States v. Diaz-Carreon

, 915 F.2d 951, 954-55 (5th Cir.

1990); United States v. Thompson

, 700 F.2d 944, 952 (5th Cir.9 The probative value of the cocaine found on Appellant's person

was called into question for two reasons. First, the record

reflects that DEA chemists determined that the cocaine re trieved

from Appellant's boot was 87 percent pure while the 40 kilograms

found in the orange truck was 89.9 percent pure. Appellant asserts

that this discrepancy is proof that the cocaine in his boot did not

come from the larger quantity. Appellee, on the other hand,

asserts that the purity of the samples is sufficiently close so

that an infer ence could be drawn that the smaller came from the

larger. Second, during cross examination of DEA Agent Foye, the

agent admitted that Appellant might be a cocaine user, thereby

implying--as Appellant argued in his closing--that Appellant

possessed the cocaine for personal use.

10 The DEA believed that a stash of cocaine was being stored in

a house in the vicinity of Conroe and Cleveland, Texas. Appellee

asserts that the driver's license provides a link between Appellant

and the location from which the DEA believed that the 40 kilograms

originated. However, on cross-examination, Agent Barnes admitted

that none of the DEA reports reflected the suspected location of

the house in Cleveland, rather they all indicated that the stash

house was thought to be located in Conroe.

13 1983).

C. The Evidence

The only evidence tendered by the government to show

Appellant's guilt was:

1) Appellant's beeper containing the phone numbers to

Gonzales' motel room and pager;

2) The quantity of cocaine found in Appellant's boot; 9

3) Appellant's wife's driver's license listing her address

in Cleveland, Texas; 10

4) Testimony froma DEA agent (accepted as an expert

witness) relating his experience regarding the organization of

drug conspiracies;

5) Testimony from a second DEA agent ( no t accepted as an

expert witness) and offering his unfounded opinion that a man

as young as Castillo would typically not be trusted with such

a large quantity of cocaine, but that such responsibility11 As noted previously, this testimony wa s presented without

objection.

12 A Houston police sergeant testified that in 1984 Appellant was arrested with a small quantity of cocaine and charged with simple

possession. On cross-examination, he testified that he had not

witnessed Appellant or any of his five co-defendants selling drugs

during his 32 hour surveillance of their motel room.

13 While we make no finding whether this evidence was properly

admitted under Fed. R. Evid. 404(b), we note that Appellant was again caught with a small quantity of cocaine on his person.

Appellant has apparently been charged by the state with possession,

and the simple fact that he has been known to possess small

quantities of cocaine does not necessarily mean that he is involved

in the distribution of larger quantities.

14 While we have no intention or desire to impugn the veracity of

the highly qualified agents who testified in this case, we express

severe reservations regarding the type of opinion testimony that

was permitted. We are especially concerned with the testimony of

Agent Stanfill who testified, without being accepted as an expert

witness and further without foundation or factual basis that "based

on my experience" Appellant controlled the cocaine transaction.

14 would more likely be given to the Appellant; 11

6) Fed. R. Evid. 404(b) evidence showing a nine year old

conviction for possession of 28 grams of cocaine. 12

At most, the evidence adduced by the government provides a weak

inference of Appellant's involvement in the conspiracy. In

application, however, with the exception of the beeper--which is

admittedly the government's most damaging evidence--Appellant's

cross-examination disclosed deficiencies in the evidence which

further lowered its probative value.

A t most, the government provided three pieces of tangible

evidence, the beeper, t he small quantity of cocaine, and the

driver's license, plus a nine-year old conviction for possession of

cocaine 13 and the testimony of two DEA agents who did little more

than opine that Appellant was the overseer of the transaction. 1415 Cf

. United States v. Carrillo-Morales

, 27 F.3d 1054 (5th Cir.

1994), cert. denied sub nom.

, Austin v. United States

,

___ U.S.

___,

___ S.Ct.

___, 1994 WL 737587 (1995); United States v.

Mergerson

, 4 F.3d 337 (5th Cir. 1993), cert. denied

,

___ U.S.

___, 114 S.Ct. 1310 (1993); United States v. Alvarado

, 898 F.2d 987 (5th

Cir. 1990).

15 The proffered evidence is too attenuated for a reasonable jury to

find Appellant guilty of the conduct charged. 15 Simply put, but for

the government 's misconduct in this trial Appellant would never

have been convicted.

V. CONCLUSION

For the foregoing reasons, we find that the government's

closing argument constituted plain error requiring reve rsal of

Appellant's conviction. We further find that the evidence was

insufficient to s upport his conviction. We REVERSE, VACATE

Appellant's sentence and REMAND the case to the district court with

instructions to enter judgment of acquittal.