1 UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 92-1503

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OMAR BRITO-HERNANDEZ,

Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Texas

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(July 9, 1993)

Before GOLDBERG, HIGGINBOTHAM, and DAVIS Circuit Judges.

GOLDBERG, Circuit Judge:

Following a jury trial, Omar Brito-Hernandez was convicted for

distributing, and conspiring to distribute, five or more kilograms

of cocaine in violation of 21 U.S.C. § 841. Brito appeals, arguing

that the tria l court abused its discretion in permitting the

government to impeach Brito with evidence of Brito's prior

conviction in the Republic of Mexico. We affirm the district

court, finding that any error committed by the lower court in2

permitting the impeachment w as harmless in light of the

overwhelming evidence against Brito.

FACTS

On October 28, 1990, an informant for the Drug Enforcement

Administration ("DEA"), Robert Stripland, and an undercover Special

Agent for the DEA, Timothy Sellers, met with Ismael Corral, Roberto

Fragoso, and Herlinda Domingues, in the La Quinta Hotel in Lubbock,

Texas, for the purpose of negotiating a cocaine sale. After

negotiating the deal, Corral telephoned the supplier, "El Tio," and

arranged to pick up nine kilograms of cocaine in Odessa, Texas, the

next day.

The next morning Corral drove Stripland to Odessa for the

purpose of obtaining the cocaine. In Odessa, Corral and Stripland

were met by the appellant Omar Brito-Hernandez. Corral got into

the car driven by Brito, drove away, and later returned to his

c lient Stripland with a backpack containing seven kilograms of

cocaine and stated, "this is what he gave me."

Brito was subs equently arrested on October 30, 1991, at his

residence in Odessa. A search of Brito's house revealed several

papers connecting Brito to the drug deal negotiated in the La

Quinta Hotel. Documents found on the dresser in Brito's residence

had El-Tio's name and phone number on them, and the phone number of

the La Quinta Hotel was written on an envelope found in Brito's

bathroom dresser. Further evidence was later discovered connecting

Brito to the La Quinta drug transaction, including telephone3

records from El Tio's apartment which establish that on the night

of the drug deal in the La Qu inta Hotel, several calls were made

from El Tio's apartment to the La Quinta Hotel and to Brito's

residence in Odessa.

On the morning of October 31, 1991, Brito orally confessed to

detective Duarte of the Odessa Police Department. In his

confession, Brito admitted to storing and distributing cocaine

obtained from El Tio, and to his involvement in the drug

transaction negotiated in the La Quinta Hotel. On November 1,

1991, Brito made a second oral confession to Special Agent Sellers

repeating the same details that he had earlier confessed to Duarte.

Four days prior to the commencement of trial the government

filed an Enhancement Information, a lleging that Brito had been

previously co nvicted of a felony drug offense in Mexico. On the

morning before jury selection, Brito requested a continuance, and

a ruling in limine precluding the government from impeaching Brito

on the basis of the prior Mexican conviction. The district court

denied both of Brito's motions.

At trial, Brito testified on his own behalf. During the

government's cross examination of Brito, the government introduced

evidence regarding Brito's Mexican conviction for the purpose of

impeachment. On February 13, 1992, the jury found Brito guilty as

charged.

After the conviction, but prior to sentencing, Brito filed a

supplemental response to the government's Enhancement Information,

claiming that by an order of the Mexican court, entered on April1 In addition to infirmities under the United States

Constitution, actions regarding the Mexican conviction taken by

the Mexican government, and the Mexican judiciary, subsequent to

Brito's conviction put into serious doubt the status and validity

of that conviction under the laws of Mexico. Brito was

4 29, 1992, his Mexican conviction was indefinitely suspended.

Because this new information raised doubt as to the validity and

finality of Brito's Mexican conviction, the government withdrew its

motion for sentence enhancement. Brito was sentenced to 151

months in prison and a five-year term of supervised release.

ANALYSIS

Appellant argues that the trial court abused its discretion in

admitting evidence regarding Brito's prior Mexican conviction for

the purpose of impeachmen t. Brito claims that the Mexican

conviction is "constitutionally invalid," and thus it coul d not

have been properly used to impea ch his credibility. It is well

esta blished that "the use of constitutionally invalid prior

convictions for impeachment purposes is err or of constitutional

dimension." Z ilka v. Estelle

, 529 F.2d 388, 389 (5th Cir. 1976)

cert. den. 429 U.S. 981 (1976).

Brito alleges that the Mexican conviction is constitutionally

invalid on two grounds. First, the Mexican legal system did not

provide Brito t he right to a trial by jury. Second, Brito was

convicted by an appellate court that reversed a lower court's

acquittal of Brito. Hence, Brito's conviction was obtained in

violation of the United States Constitution's prohibition on double

jeopardy. 1originally sentenced for seven years but was released after

serving a term of seven months. Brito was allegedly told upon

his early release that "everything was an error." The Mexican

government then issued an order "suspending" Brito's conviction.

5 We have found no circuit court decision addressing the

validity of a foreign convict ion obtained in violation of double

jeopardy, and only one decision addressing the validi ty of a

foreign conviction obtained without the right to a jury. In U nited

States v. Wilson

, 556 F.2d 1177 (4th Cir.) cert. den. 434 U.S. 986

(1977), the Fourth Circuit upheld the impeachment of a defendant on

the basis of a prior conviction obtained in West German y. The

appellant in Wilson argued that the German conviction was

constitutionally invalid because it was obtained without giving the

defendant the right to a jury trial. The W ilson court rejected the

appellant's argument, holding that "a jury trial is not essential

for fairness in every system of justice," and thus that "the

defendant has not shown that the German legal system lacks the

procedural protection necessary for fundamental fairness." I d

. at

1178.

We need not reach, and we express no opinion on, the question

of whether a foreign conviction obtained in violation of the right

to be free from double jeopardy, or the right to a trial by a jury,

may be used to impeach a defendant. We find that even if the

introduction of the Brito's prior Mexic an conviction was a

constitutional error, this error was harmless beyond a reasonable

doubt.

The Supreme Court, in Chapman v. California , instructed that6

"before a federal constitutional error can be held harmle ss, the

court must be able to declare a belief that it was harmless beyond

a reasonable doubt." 87 S.Ct. 824, 828 (1967). Applying the

Chapman standard in Zilka

, we explained that a conviction must

stand "if, upon a reading of the trial record, the court is firmly

convinced that the evidence of petitioner's guilt was overwhelming

and that the jury would have reached the same result without the

tainted evidence." 529 F.2d at 392.

The evidence of Brito's guilt is overwhelming. Two different

government witnesses, detective Duarte of the Odessa Police

Department and DEA Sp ecial Agent Sellers, testified that Brito

orally confessed to storing and distributing cocaine obtained from

his supplier El Tio, and to his involvement in the drug deal that

was negotiated at the La Quinta Hotel. Brito's confessions were

consistent, specific, and corroborated by additional evidence.

Brito confessed to both Duarte and Sellers that he stored the

cocaine procured from El Tio at a ranch house, and a search of the

ranch house revealed a one kilogram brick of cocaine. Moreover,

documents found in Brito's house directly linked Brito to El Tio

and to the drug deal negotiated at the La Quinta Hotel. Documents

in Brito's residence contained both El Tio's name and phone number,

and the phone number of the La Quinta Hotel where the drug

transaction was completed. Also establishing Brito's connection to

the drug deal was the testimony of Brito's co-defendants, and the

telephone records from El Tio's apartment showing that se veral

calls were made from El Tio's apartment to the La Quinta Hotel and7

to Brito's residence in Odessa. Given the weight of the evidence

against Brito , it is beyond reasonable doubt that the jury's

v erdict would not have been different if the impeaching evidence

had been excluded. See United States v. Williams

, 957 F.2d 1238,

1244 (5th Cir. 1992).

Appellant makes two additional arguments on appeal. Appellant

claims that the trial court abused its discretion in not granting

Brito's motion for a continuance to allow Brito's attorney time to

investigate the status of the Mexican conviction. "[T]he decision

to grant a continuance lies within the sound discretion of the

trial judge and is subject to rev ersal only for an abuse of that

discretion." U nited States v. Hopkins

, 916 F.2d 207, 217 (5th Cir.

1990). Moreover, "a defendant can obtain reversal only by

demonstrating serious prejudice." United States v. Mitchell , 777

F.2d 248, 255 (5th Cir.) cert. den. 475 U.S. 1096 (1986). Brito

asserts that a continuance would have enabled him to present

evidence r egarding the questionable status of the Mexican

conviction. However, the order suspending Brito's Mexican

conviction was not issued until April 29, 1992, and the Brito's

trial was scheduled to commence on February 10, 1992. As the

Mexican court issued its order two and half months after the start

of the instant trial, even if a reasonable continuance had been

granted Brito would not have been able to discover the order prior

to trial. We find nothing in the record to support Brito's

contention that the trial judge abused its discretion. Appellant

also argues that the trial court erred in failing to grant Brito's8

motion for a mistrial after a government witness testified that a

p hotograph used to identify Brito came from the Odessa Police

Department. The photograph itself was not introduced into evidence

nor was it exhibited to the jury. The court instructed the jury to

disregard the testimony r egarding the source of the photograph.

The district court did not abus e its discretion in denying

appellant's motion for a mistrial.

CONCLUSION

For the foregoing reasons, the decision of the district court

is AFFIRMED.