*Pursuant to Local Rule 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-20271

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HERMILO HERRERO,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the

Southern District of Texas, Houston

(CR-H-95-231-3)

_________________________________________________________________

April 8, 1997

Before REAVLEY, JOLLY, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Hermilo Herrero appeals his convictions for conspiracy to

possess with intent to distribute cocaine and for aiding and

abetting the possession with intent to distribute cocaine. After

studying the briefs submitted to this court and reviewing the

record in this matter, we conclude that no reversible error

occurred and affirm the convictions.

I
1Count 3 was dismissed by the court at the conclusion of the

evidence. 

2Cortez was named in the indictment with Herrero but was tried

separately.

2

Herrero was named, along with three other individuals, in a

six-count indictment and charged with conspiracy to possess with

intent to distribute cocaine (Count 1), aiding and abetting in the

possession with intent to distribute cocaine (Count 2), using and

carrying a firearm during and in relation to a drug trafficking

offense (Count 3), and possession of a firearm by a convicted felon

(Count 5). After a jury trial, Herrero was found guilty of Counts

1 and 2 and was acquitted of Count 5.1

Herrero timely filed this appeal, contesting the sufficiency

of the evidence, the rulings of the district court concerning the

production of certain government informants and the denial of his

motion for a new trial based upon ineffective assistance of

counsel.

II

A

We turn to the facts of this case as they emerged from the

evidence presented at trial. Herrero and the other men charged in

the indictment were arrested at a Houston motel after attempting to

sell five kilograms of cocaine to an undercover police officer. On

the day of the bust, Herrero and Jesus Cortez2 arrived at the motel
3Dodd, who was acquitted, was a co-defendant at Herrero’s

trial.

3

in a truck driven by Kennerson Dodd.3 Cortez and Herrero left the

truck and went to the appointed room. Dodd then left the motel.

Once inside the room, Cortez, Herrero and the undercover officer

discussed the planned transaction. The confidential informant

present in the room testified that Cortez introduced Herrero as the

middleman or owner of the “merchandise.” The undercover officer

told Cortez and Herrero that only one of them could go with him to

count the “buy” money. Herrero first said he would go and then

suggested that Cortez go instead. While Cortez and the officer

were gone, Herrero told the confidential informant that “[t]he

first deal is always the hardest.”

After showing Cortez the money, the officer returned to the

room and asked where the cocaine was located. Cortez responded

that it would be arriving soon in Dodd’s truck. This conversation

occurred in Herrero’s presence.

Dodd subsequently returned to the motel and both Herrero and

Cortez left the room to meet him. Eventually, Dodd demanded to see

the “buy” money and the officer demanded to see the cocaine. Dodd

refused to allow the officer to see the cocaine until the officer

turned over the money, which the officer steadfastly refused to do.
4We find Herrero’s argument that the testimony of Dodd

regarding their presence at the motel exculpates him to be

meritless. There was conflicting testimony presented to the jury,

and the resolution of the credibility issues inherent in such

conflicts is within the power of the jury. See Gardea Carrasco,

830 F.2d at 44. Herrero’s argument that he cannot be found guilty

of conspiracy because he was not involved in the planning stages of

the transaction is similarly meritless. See United States v.

Alvarez, 625 F.2d 1196, 1198 (5th Cir. 1980) (holding that

defendant may not escape conviction merely because he played only

a minor role or joined the conspiracy after its inception).

Finally, we reject Herrero’s argument that “any participation

attributed to Herrero by Officer Garza should be rejected, as the

jury in acquitting Kennerson Dodd rejected Garza’s testimony but

accepted Dodd’s testimony, which was exculpatory to Herrero. It

would be irrational for a trier of fact to reject the testimony of

Garza as it related to Dodd but to accept it to convict Herrero.”

Juries are entitled to render inconsistent verdicts. United States

v. Powell, 105 S.Ct. 471, 476-77 (1984); see also United States v.

Parks, 68 F.3d 860, 865 (5th Cir. 1995), cert. denied, 116 S.Ct.

825 (1996) (holding that not guilty verdict on one count does not

establish facts favorable to the defense for purpose of determining

sufficiency of evidence on counts of conviction). 

5Herrero was convicted of both conspiracy to possess with

intent to distribute cocaine and aiding and abetting the possession

with intent to distribute cocaine. In order to prove the offense

of aiding and abetting the possession, the government must have

shown that Herrero “became associated with, participated in, and in

some way acted to further the possession and distribution of the

drugs.” United States v. Chavez, 947 F.2d 742, 745 (5th Cir.

1991). This court has previously recognized that, as a general

matter, “the same evidence will support both a conspiracy and an

4

The officer eventually called off the deal and signaled for the

arresting officers to apprehend the men.

Given these facts, it is clear to us that there was ample

evidence4 that connected Herrero to the conspiracy to violate the

narcotics laws for a reasonable jury to have been convinced beyond

a reasonable doubt of Herrero’s guilt.5
aiding and abetting conviction.” Id. We therefore affirm

Herrero’s conviction on Count 2 on the basis of the evidence

outlined above.

5

B

Herrero next complains that he was prejudiced by the district

court’s rulings concerning the disclosure and production of the

confidential informants involved in his arrest. The district court

denied Herrero’s pre-trial request for disclosure of confidential

informants, then during trial required the government to produce

one informant and reveal the case file on the second informant.

The first informant appeared and testified at trial, but the

government reported that they were unable to locate the second

informant. Herrero contends that he has been denied due process

and his right to confrontation.

The first informant testified at trial and Herrero fully

cross-examined him. His testimony plainly implicated Herrero, and

Herrero makes no claim that he would have proceeded differently in

preparing his case had he known the identity of this informant

earlier. Herrero therefore fails to show any prejudice flowing

from the district court’s initial denial of his motion to disclose.

See United States v. Perkins, 994 F.2d 1184, 1190 (6th Cir. 1993)

(denial of defendant’s motion to disclose identity of informant

prior to trial not error because informant testified, was

extensively cross-examined, and no prejudice resulted from delay).
6

Herrero also complains of the failure of the government to

produce the second informant. Herrero makes no showing that the

second informant would have testified in his favor concerning the

transaction. Both the officer and the first informant testified

that the second informant “stayed in the background” during the

meeting, and there appears to be no evidence that the second

informant would have offered any new testimony not covered by the

other eyewitnesses. Again, Herrero has failed to show prejudice as

a result of the non-disclosure.
6The district court noted that the “comments were clearly

intended to and did leave the impression that the offenses were

minor, despite their characterization as felonies.”

7

C

Herrero filed a motion for new trial claiming ineffective

assistance of counsel. The district court denied the motion, and

we review the denial for abuse of discretion. United States v.

Giraldi, 86 F.3d 1368, 1374 (5th Cir. 1996).

In order to establish a claim of ineffective assistance of

counsel, a defendant must show that his attorney’s performance fell

below an objective standard of reasonableness and that he suffered

actual prejudice as a result. Strickland v. Washington, 104 S.Ct.

2052, 2064 (1984). To satisfy the prejudice prong of Strickland,

a defendant must show “that counsel’s error were so serious as to

deprive [him] of a fair trial, a trial whose result is reliable.”

Lockhart v. Fretwell, 113 S.Ct. 838, 842 (1993). Without a showing

of prejudice, the court never reaches the question of deficiency of

performance. Yohey v. Collins, 985 F.2d 222, 228.

Herrero’s complaint is based upon comments made by his counsel

during opening and closing statements. These comments related to

certain of Herrero’s previous convictions that were part of a pretrial stipulation. The comments were apparently efforts by defense

counsel to minimize the seriousness of the convictions.6 These

comments did not deprive Herrero of a fair trial. The testimony
8

was compelling that Herrero was an active participant in the drug

transaction; thus, even if the comments were inappropriate, it

cannot be said that the jury was so prejudiced by them that the

entire proceeding is rendered unreliable. We hold that the

district court acted within its discretion in denying the motion

for new trial.

III

There was ample evidence to support Herrero’s conviction for

both conspiracy to possess with intent to distribute cocaine and

aiding and abetting the possession with intent to distribute

cocaine. A rational jury could have concluded, from Herrero’s

presence at the motel--combined with his actions and comments and

the comments of Cortez--that Herrero was not a mere innocent

bystander but was, instead, involved in the drug conspiracy.

Furthermore, Herrero has failed to show prejudice as the result of

either the trial court’s ruling on his motion for disclosure of

confidential informants or the failure of the government to produce

the second informant. Finally, Herrero suffered no actual

prejudice from the remarks made by counsel during opening and

closing arguments and, therefore, fails to establish a claim of

ineffective assistance of counsel.

For the reasons above, the judgment of the district court is

A F F I R M E D.
9