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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 adequately

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
violation of 18 U.S.C. зз 2,1 3712 (Count One); (2) aiding and abetting the
influencing of Almaraz in violation of 18 U.S.C. зз 2, 15033 (Count Three); and
(3) being an accessory after the fact to Cantu, in violation of 18 U.S.C. з 34 (Count
Five). De La Rosa's co-defendants, Bobby Herrera (Cantu's cousin) and Jennifer
Esparza (Herrera's girlfriend) pleaded guilty on related charges. Cantu was
ultimately convicted for his involvement in a marihuana smuggling and money
laundering operation.
118 U.S.C. з 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. . . .
218 U.S.C. з 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]. . . .
318 U.S.C. з 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. . . .
418 U.S.C. з 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

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
government'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 following 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 -- Almaraz -- as a former high school classmate.
Subsequently, Herrera discovered that Esparza was friends with Almaraz's
girlfriend, Diana Dorado. Believing that their connections with Almaraz would
make him a good candidate for bribery, De La Rosa and Herrera decided to offer
5During oral argument, De La Rosa's counsel affirmatively represented to the court
that the government expressly 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 believe 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 should
candidly acknowledge such.
6See United States v. Hanson, 161 F.3d 896 (5th Cir. 1998).
3

Almaraz $5,000 to $10,000 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 Ureste's request, conveyed the offer of the bribe to Almaraz as
they headed toward a cafщ co-owned or co-managed8 by De La Rosa. At the cafщ,
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 Miranda9 rights
and told a federal agent several conflicting and false accounts. First, De La Rosa
7The 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.
8It is unclear from the record whether De La Rosa co-owned or co-managed the cafщ.
9See Miranda v. Arizona, 348 U.S. 436 (1966).
4

claimed not to know Almaraz; then he equivocated and admitted to possibly
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 cafщ 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 counts 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 consider 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 evidence
5

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 If, however, the
defendant failed properly to preserve his objection to the jury charge, the plain
error standard applies.12 In 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. In
10See United States v. Polasek, 162 F.3d 878 (5th Cir. 1998); United States v.
Jensen, 42 F.3d 946 (5th Cir. 1994).
11United States v. Duncan, 919 F.2d 981, 990 (5th Cir. 1990). For purposes of
today's decision, we assume that De La Rosa properly preserved his objection to the jury
charge.
12See United States v. Crow, 164 F.3d 229 (5th Cir. 1999).
13See United States v. Millsaps, 157 F.3d 989 (5th Cir. 1998).
6

United States v. Kerley,14 the defendant, an officer in the sheriff's department,
repeatedly struck an individual held in custody. A state jury acquitted the
defendant on a battery 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 acquittal, and the defendant urged that the exclusion of the
evidence required reversal. We pointed out the fallacies behind this argument.
Although 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 prosecution failed to
meet its burden of proving beyond a reasonable doubt at least one element
of the crime.15
Furthermore, "`a judgment 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 by
14643 F.2d 299 (5th Cir. Unit B 1981).
15Id. at 300-01 (internal quotations and citations omitted).
16United States v. Sutton, 732 F.2d 1483, 1492 (10th Cir. 1984) (quoting United
States v. Viserto, 596 F.2d 531, 537 (2d Cir. 1979)).
7

the danger of prejudice, confusion of the issues, or misleading the jury."17 Other
circuits 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.20
17Fed. R. Evid. 403; Kerley, 643 F.2d at 301.
18See, e.g., United States v. Marrero-Ortiz, 160 F.3d 768 (1st Cir. 1998); United
States v. Jones, 808 F.2d 561 (7th Cir. 1986); Prince v. Lockhart, 971 F.2d 118 (8th Cir.
1992); United States v. Irvin, 787 F.2d 1506 (11th Cir.1986); United States v. Thomas, 114
F.3d 228 (D.C. Cir. 1997).
19See, supra, nn. 16 & 18. Recently, we reaffirmed our holding in Kerley 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 (5th Cir. 1998) (quoting Kerley, 643
F.2d at 300-01).
20We note 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 (5th Cir. 1990) (quoting Texas
Code of Professional Responsibility, Ethical Consideration 7-23). Zealous representation
does not include skirting ethical obligations.
8

III.
Instruction of Prior Acquittal.
De La Rosa complains of the trial court's failure to instruct the jury of his
prior acquittal. In support of his position he cites to one and only one authority,
Dowling v. United States.21 We agree with our First Circuit colleagues that this
case "cannot bear the weight [De La Rosa] assigns to it."22 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.
21493 U.S. 342 (1990).
22United States v. Smith, 145 F.3d 458, 461 (1st Cir. 1998).
23Id.
24Id.
25Id. at 462 (citing United States v. Tirrell, 120 F.3d 670 (7th Cir. 1997); United
States v. Riley, 684 F.2d 542 (8th Cir. 1982)).
9

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. з 1503 (endeavoring to influence a juror in
the discharge of his duty), the government must prove: (1) that a judicial
proceeding was pending; (2) that the defendant had knowledge of the judicial
proceeding; 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. з 2 (aiding and abetting), the government must
prove: (1) that the defendant associated with a criminal 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. з 3 (being an
accessory after the fact), the government must prove: (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.28
26See United States v. Williams, 874 F.2d 968 (5th Cir. 1989).
27See United States v. Fierro, 38 F.3d 761 (5th Cir. 1998).
28See United States v. Triplett, 922 F.2d 1174 (5th Cir. 1991).
10

De La Rosa contends that no reasonable juror could have concluded beyond
a reasonable doubt that he acted with the requisite intent 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 occurred under the laws of nature."29 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
This appeal does not present even a close call on this issue. Almaraz's
testimony was not incredible as a matter of law and his testimony, coupled with
that of other witnesses produced by the government, was more than sufficient to
29United States v. Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994).
30United States v. Mathes, 151 F.3d 251, 252 (5th Cir. 1998).
31See United States v. Miller, 146 F.3d 274 (5th Cir. 1998).
11

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 Rosa assisted Cantu in his drug business; he attended Cantu's trial; he
discussed bribing Almaraz with Herrera and Esparza; he promised Almaraz a future
favor in 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 enforcement 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 sentences of Rene De La Rosa are
AFFIRMED.
12