U.S. v. Zamudio

• Decision Date: 29 November 1993
• Citation: 141 F.3d 1186
• Parties: 98 CJ C.A.R. 1654 NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1186

141 F.3d 1186

98 CJ C.A.R. 1654

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

UNITED STATES of America, Plaintiff-Appellee, v. Cipriano ZAMUDIO, Defendant-Appellant.

No. 96-2182.

United States Court of Appeals, Tenth Circuit.

April 6, 1998.

Before SEYMOUR, Chief Judge, McWILLIAMS and MURPHY, Circuit Judges.

ORDER AND JUDGMENT ^*

Cipriano Zamudio, Alfredo Pando, and Eleno Osorio-Soto were tried jointly and convicted of conspiracy to possess with intent to distribute more than five kilograms of cocaine. Zamudio appeals his conviction claiming that (1) a codefendant's counsel improperly commented on his right to remain silent; (2) the limitations placed on Zamudio's cross-examination of Agent Mendonca violated his right of confrontation; and (3) the trial court improperly admitted hearsay statements by Pando through the testimony of former codefendant Jose Megallon in violation of his confrontation rights. This court affirms.

Background

In November 1994, authorities found over five kilograms of cocaine in a hidden compartment of a trailer. Subsequent investigation revealed that Jose Megallon had leased the trailer. In January 1995, Megallon voluntarily went to a Drug Enforcement Administration (DEA) office after being contacted by police. He provided federal agents with a statement and agreed to cooperate by allowing the agents to tape conversations between him and other alleged conspirators.

Zamudio, Pando, Osorio-Soto, Megallon, and other alleged coconspirators were indicted for conspiracy to possess with intent to distribute more than five kilograms of cocaine. Megallon pleaded guilty to conspiracy and agreed to testify for the government. Zamudio, Pando, and Osorio-Soto were tried jointly and all three were convicted of conspiracy in January 1996. Zamudio's appeal centers on the testimony presented by two government witnesses at the trial: Tony Mendonca, a DEA agent, and Megallon.

At trial, Agent Mendonca testified that he, along with Agent Chris Hoover, arrested Zamudio and took Zamudio to a DEA office where he was questioned. Referring to a report, Mendonca testified that Zamudio, after being read his Miranda rights, admitted entering into an agreement with Megallon to use a trailer for the transportation of cocaine. Mendonca also testified that Zamudio admitted going with Megallon to lease a trailer suitable for the construction of a secret compartment and admitted, when a satisfactory trailer was not found, agreeing to use a trailer Megallon already possessed.

On cross-examination, counsel for Osorio-Soto asked Mendonca whether the statement he attributed to Zamudio was made after Zamudio's arrest. When Mendonca answered in the affirmative, Osorio-Soto's counsel made a motion for severance or to strike the statement, arguing:

I don't have any guarantee that Mr. Zamudio is going to be taking the stand, so I would ask the Court to strike any statement in regards to what Mr. Mendonca said that Mr. Zamudio said in regards to my client, Mr. Osorio-Soto. As an alternative, I will go ahead and ask for a severance in the case if Mr. Zamudio does not take the stand.

Further explaining his objection, Osorio-Soto's counsel stated:

Your Honor, based on the testimony of Mr. Mendonca, he states that he questioned Mr. Zamudio and that Mr. Zamudio showed that there was in fact a conspiracy involving the trailer. That's the reason for asking for a severance, Your Honor. The trailer is going to be used to implicate my client, Mr. Osorio-Soto. I don't have any way to cross-examination [sic] Mr. Zamudio regarding the accuracy or inaccuracy of the statement allegedly made by him.

The court denied Osorio-Soto's motion.

Counsel for Zamudio then cross-examined Mendonca. In her cross-examination of Mendonca, she attempted to use Agent Hoover's report, Government Exhibit 20, which set out completely Zamudio's post-arrest statements, including statements describing Pando's and Osorio-Soto's involvement in the conspiracy. Both Osorio-Soto and Pando objected to use of the report on hearsay grounds. When the trial court inquired into the government's position, the prosecutor stated his belief that certain portions of the report needed to be redacted. The trial court reserved ruling on whether the document could be received in whole or in part. The government then advised the trial court that it had a redacted copy of the exhibit. Neither Osorio-Soto nor Pando objected to the use of the redacted report. The government, therefore, withdrew Government Exhibit 20 and Zamudio's counsel continued cross-examining Mendonca using the redacted report, Defendant's Exhibit 2-A. Because the report was prepared by Agent Hoover, rather than Mendonca, the redacted report was provisionally received by the court, subject to publication only upon testimony by Hoover verifying the document.

Later during the cross-examination of Mendonca, Zamudio's counsel asked if Zamudio had provided information to the agents about "the agreement between Osorio and Pando to smuggle cocaine." Osorio-Soto's counsel immediately objected to the question and moved for severance. The court denied severance and overruled the objection. Mendonca answered the question in the negative and Zamudio's counsel continued the cross-examination. The government then objected on the grounds that allowing Zamudio's counsel to elicit testimony regarding what Zamudio said about the other codefendants would create a Bruton problem. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The court sustained the government's objection and limited Zamudio's cross-examination to the line of inquiry that was addressed in direct examination.

The other government witness whose testimony is relevant to this appeal is Megallon. Megallon, a coconspirator turned government informant, testified about his involvement in the conspiracy and interactions with the defendants. Additionally, through Megallon's testimony, the government introduced and played three conversations which were taped while Megallon was cooperating with the DEA: a January 26, 1995 conversation between Megallon and Zamudio; a February 14, 1995 telephone conversation between Megallon and Pando; and a February 22, 1995 conversation between Megallon and Zamudio. The jury was also provided with English and Spanish transcripts of these taped conversations, which were primarily in Spanish. While Zamudio does not challenge the admissibility of the taped conversations between Megallon and himself, he contends the trial court erred in admitting the telephone conversation between Pando and Megallon. Pando, who fled after the first day of trial, did not testify, but the trial of the charges against him proceeded in absentia.

Comment on Zamudio's Failure to Testify

On appeal, Zamudio argues that Osorio-Soto's counsel impermissibly commented on Zamudio's failure to testify in violation of his Fifth Amendment rights. Specifically, in commenting on his motion for severance or to strike statements attributed to Zamudio by Agent Mendonca, Osorio-Soto's counsel, in the presence of the jury, stated: "I don't have any guarantee that Mr. Zamudio is going to be taking the stand"; "I will go ahead and ask for a severance in the case if Mr. Zamudio does not take the stand"; and "I don't have any way to cross-examin[e] Mr. Zamudio regarding the accuracy or inaccuracy of the statement allegedly made by him." ¹

Zamudio did not object to these statements during trial. Therefore, our review is limited to plain error. See United States v. Toro-Pelaez, 107 F.3d 819, 827 (10th Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 129, 139 L.Ed.2d 78 (1997). This court may correct an error not raised at trial only if we find there is "(1) error, (2) that is plain, and (3) that affect[s] substantial rights. If all three conditions are met, [this] court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." Johnson v. United States, 520 U.S. 461, ---- - ----, 117 S.Ct. 1544, 1548-49, 137 L.Ed.2d 718 (1997) (alterations in original) (citations and internal quotations omitted); see also Fed.R.Crim.P. 52(b).

For purposes of this appeal, we assume, without deciding, that the statements Zamudio challenges created error and the error is plain. Before this court may correct such an error, however, the defendant has the burden of showing that the error affected substantial rights, which generally means the defendant must show he was prejudiced by the error. See United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); see also Toro-Pelaez, 107 F.3d at 827-28. Furthermore, even if defendant meets his burden of showing the error affected substantial rights, this court may not order correction unless it also finds the error seriously affected the fairness, integrity or public reputation of judicial proceedings. See Johnson, 520 U.S. at ----, 117 S.Ct. at 1550. In this case, Zamudio has failed to show he was prejudiced by the alleged error. Furthermore, even if Zamudio had shown prejudice, there exists no basis in the record for concluding that the error seriously affected the fairness, integrity or public reputation of judicial proceedings.

Zamudio argues the statements were prejudicial because (1) they were direct comments on his failure to testify; (2) the nature of the government's case was such that only his own testimony could have fully contradicted the government's evidence; and (3) the government's case relied heavily on the...