United States v. Zamudio

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 6 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
No. 96-2182
v. (District of New Mexico)
(D.C. No. CR 94-721-JC)
CIPRIANO ZAMUDIO,

Defendant-Appellant.

ORDER AND JUDGMENT *

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

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

*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
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

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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,

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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

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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 (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.

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 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, 118 S. Ct. 129 (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

1
At the outset of the trial, the district judge instructed the parties that “no
bench conferences [would] be permitted” and that all speaking objections would
be considered either “before the day’s business begins, during recess or at the end
of the day.” While this court appreciates the need for efficiency, the judge’s
instructions created problems for the parties in this case. Had the judge permitted
limited but necessary bench conferences, counsel for Osorio-Soto could have
explained his objection to the testimony outside the hearing of the jury. This
issue therefore could have been avoided entirely.

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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, 117 S. Ct. 1544, 1548-49 (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 (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, 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.

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 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

testimony of Megallon, a convicted informant, and the challenged testimony of

Agent Mendonca regarding Zamudio’s admission. A number of other factors,

however, mitigate any prejudicial effect the statements could have had on the

jurors’ deliberations.

First, the statements, while made in the presence of the jury, were not

directed at the jurors. This case is therefore distinguishable from cases involving

comments made to jurors during closing arguments.

Second, the comments did not suggest the jurors should infer Zamudio’s

guilt from his failure to testify. Cf. United States v. Wing, 104 F.3d 986, 990-91

(7th Cir. 1997) (holding court’s remarks, while directly commenting on

defendant’s failure to testify, did not constitute plain error because they did not

invite jurors to infer guilt from defendant’s failure to testify and there was

substantial evidence of defendant’s guilt); United States v. Sarno, 73 F.3d 1470,

1498 (9th Cir. 1995) (holding single improper comment by prosecutor regarding

defendant’s failure to testify did not mandate reversal when comment did not

invite jury to infer guilt from silence and judge gave jurors curative instruction);

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United States v. Mena, 863 F.2d 1522, 1534 (11th Cir. 1989) (“When the

‘comment’ [on the failure of the accused to testify] comes from an actor (such as

counsel for a codefendant) without an institutional interest in the defendant’s

guilt, . . . . the court should ask whether the comment actually or implicitly

invited the jury to infer guilt from silence.”). Rather, the comments focused only

on the ability of Osorio-Soto to cross-examine Zamudio regarding statements

Zamudio made to agents after his arrest.

Third, the jurors were properly instructed that they may not infer guilt from

a defendant’s failure to testify. Specifically, upon conclusion of the closing

arguments, the judge instructed the jury that “a Defendant is presumed by law to

be innocent. The law does not require a Defendant to prove his innocence or

produce any evidence at all, and no inference whatsoever may be drawn from the

election of a Defendant not to testify.” (Emphasis added.) Jurors are presumed to

follow the instructions given to them. See United States v. Coleman, 7 F.3d 1500,

1506 (10th Cir. 1993).

Finally, contrary to Zamudio’s assertions, there was substantial evidence of

his guilt. Not only did Mendonca testify as to Zamudio’s post-arrest admission

and Megallon testify as to Zamudio’s involvement in the conspiracy, but the

government also introduced two taped conversations in which Megallon and

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Zamudio discussed the conspiracy and what was to be done about the trailer

which government agents seized.

Given the numerous factors mitigating any effect of the statements

regarding Zamudio’s failure to testify, Zamudio failed to meet his burden of

showing he was prejudiced by the alleged error. Moreover, the alleged error did

not seriously affect the fairness, integrity or public reputation of judicial

proceedings. This court therefore holds that the statements by Osorio-Soto’s

counsel do not constitute reversible error.

Restriction on Defendant’s Cross-Examination of Mendonca

Zamudio contends the district court impermissibly restricted his cross-

examination of Agent Mendonca by prohibiting inquiry into portions of

Zamudio’s post-arrest statement. On direct examination, Agent Mendonca

testified that, among other things, Zamudio admitted agreeing to use a trailer for

the transportation of cocaine and admitted going with Megallon to rent a suitable

trailer. During the cross-examination of Agent Mendonca, Zamudio’s counsel

tried to elicit testimony regarding other statements Zamudio made at the time of

his arrest. Because these additional statements apparently would implicate

codefendants Pando and Osorio-Soto, creating a Bruton problem, the district court

limited Zamudio’s counsel to the line of inquiry addressed in direct examination

and allowed only a redacted version of defendant’s post-arrest statement to be

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used. Zamudio maintains that this limitation on his cross-examination of Agent

Mendonca violated his confrontation rights. He argues that because Agent

Mendonca testified about portions of his post-arrest statement on direct

examination, the district court was required to allow him to cross-examine Agent

Mendonca concerning other portions of the post-arrest statement which were

necessary to place the admitted evidence into context.

“We review de novo whether a defendant’s confrontation rights were

violated by reason of improper cross-examination restrictions . . . .” United

States v. Pedraza, 27 F.3d 1515, 1529 (10th Cir. 1994). While the Confrontation

Clause guarantees defendants an “opportunity for effective cross-examination,” it

does not guarantee a “cross-examination that is effective in whatever way, and to

whatever extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15,

20 (1985); accord Pedraza, 27 F.3d at 1529.

While the government was entitled to introduce Zamudio’s admissions

under Fed. R. Evid. 801(d)(2)(A), Zamudio was not similarly entitled to offer his

own exculpatory statements through the testimony of Agent Mendonca because

such statements, if offered to prove the truth of the matter asserted, would

constitute hearsay. See Fed. R. Evid. 801, 802. Zamudio, however, maintains

that because certain portions of his post-arrest statements were admitted on direct

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examination, the district court was required to admit other portions of his

statement to place the admitted evidence into context.

Rule 106 of the Federal Rules of Evidence provides that “[w]hen a writing

or recorded statement or part thereof is introduced by a party, an adverse party

may require the introduction at that time of any other part or any other writing or

recorded statement which ought in fairness to be considered contemporaneously

with it.” While Rule 106 explicitly applies only to writings and recorded

statements, the rule of completeness embodied in Rule 106 is “‘substantially

applicable to oral testimony, as well’ by virtue of Fed. R. Evid. 611(a), which

obligates the court to ‘make the interrogation and presentation effective for the

ascertainment of the truth.’” United States v. Mussaleen, 35 F.3d 692, 696 (2d

Cir. 1994) (quoting United States v. Alvarado, 882 F.2d 645, 650 n.5 (2d Cir.

1989)); see also United States v. Li, 55 F.3d 325, 329 (7th Cir. 1995); United

States v. Haddad, 10 F.3d 1252, 1258-59 (7th Cir. 1993); 1 Jack B. Weinstein &

Margaret A. Berger, Weinstein’s Federal Evidence § 106.02[3] & nn.12-13

(Joseph M. McLaughlin ed., 2d ed. 1997). Accordingly, a redacted version of a

defendant’s post-arrest statement is impermissible if it “unfairly distort[s] the

original” or “exclude[s] substantially exculpatory information.” Mussaleen, 35

F.3d at 696; see also United States v. Washington, 952 F.2d 1402, 1404 (D.C. Cir.

1991); United States v. Kaminski, 692 F.2d 505, 522 (8th Cir. 1982).

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 The rule of completeness, however, does not necessarily require admission

of a defendant’s entire statement. Rather, only those portions which are “relevant

to an issue in the case” and necessary “to clarify or explain the portion already

received” need to be admitted. Haddad, 10 F.3d at 1259; see also Li, 55 F.3d at

329-30; cf. United States v. Branch, 91 F.3d 699, 728 (5th Cir. 1996) (discussing

Rule 106 and noting that “[a]lthough different circuits have elaborated Rule 106's

‘fairness’ standard in different ways, common to all is the requirement that the

omitted portion be relevant and necessary to qualify, explain, or place into context

the portion already introduced” (internal citations and quotations omitted)), cert.

denied, 117 S. Ct. 1466, 1467 (1997). In determining whether a disputed portion

of a statement must be admitted, the trial court should consider whether “(1) it

explains the admitted evidence, (2) places the admitted evidence in context, (3)

avoids misleading the jury, and (4) insures fair and impartial understanding of the

evidence.” Li, 55 F.3d at 330; see also Haddad, 10 F.3d at 1259.

Zamudio’s claim that his confrontation rights were violated, therefore,

turns on whether the excluded portions of his post-arrest statement were necessary

to explain or place into context the evidence admitted during direct examination.

If the rule of completeness was not violated by the exclusion of this evidence, the

limitation placed on Zamudio’s cross-examination was proper because the

excluded portions were not otherwise admissible. Cf. United States v. Thuna, 786

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F.2d 437, 442 n.10 (1st Cir. 1986) (noting that because redaction of report of

defendant’s post-arrest statements was not prejudicial to defendant, the district

court was within its discretion to limit cross-examination regarding the report).

Zamudio did not designate the written report of his post-arrest statements

as part of the record on appeal nor did he make a proffer as to what the omitted

portions of his statement would have shown. This court is therefore unable to

evaluate the precise content of the omitted portions of Zamudio’s statement.

In his opening brief Zamudio simply states that the district court improperly

limited inquiry into those portions of his post-arrest statement “wherein he

attempted to shift the blame from himself to co-defendants Osorio and Pando.”

Specifically, Zamudio complains that his counsel was unable to inquire into “the

context of [his] admissions, the purpose of Pando and Osorio in renting the

trailer, and other aspects of an alleged agreement between Osorio and Pando of

which Zamudio was not part.” In his reply brief he asserts that the omitted

portions “attempted to place into context his activities in the alleged conspiracy

and contrast them with the purposeful involvement of the co-defendants Osorio

and Pando.” It appears, therefore, that the excluded portions of Zamudio’s

statement detail Osorio-Soto’s and Pando’s involvement in the conspiracy and

attempt to shift the blame from Zamudio to his coconspirators based primarily on

their more meaningful involvement in the scheme. Zamudio has not argued that

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the excluded portions of the statement show he did not participate in the

conspiracy in the manner Agent Mendonca testified to on direct examination nor

does he argue that the portions show his actions were done only under duress.

The excluded portions therefore do not appear to be exculpatory.

This court cannot conclude the omitted portions of Zamudio’s post-arrest

statements were necessary to explain the admitted evidence or place that evidence

into context. If, as it appears, the omitted portions of Zamudio’s post-arrest

statement did no more than show Osorio-Soto’s and Pando’s involvement in the

scheme, the rule of completeness did not require their admission because Osorio-

Soto’s and Pando’s involvement is not necessary to explain or place into context

Zamudio’s act of agreeing to participate in the conspiracy or his act of

accompanying Megallon to rent a trailer. Cf. Li, 55 F.3d at 330 (holding

statement that defendant was threatened by codefendant was not necessary to

explain or understand defendant’s admission to making payment to codefendant

absent a coercion defense). Because the record on appeal is insufficient to

support Zamudio’s assertion that his confrontation rights were violated and

because Zamudio’s appellate presentation does not suggest any legitimate basis

for admission of the redacted portions of his statement, exclusion of the testimony

was not error.

Admission of Taped Conversation

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 Zamudio’s final argument is that the tape and transcript of the February 14,

1995 telephone conversation between Megallon and Pando constituted

inadmissible hearsay and that the district court’s erroneous admission of that

taped conversation and transcript into evidence violated his confrontation rights

because Pando did not testify at the trial. The government maintains the taped

statements were properly admitted as coconspirator statements under Fed. R.

Evid. 801(d)(2)(E), which provides that “[a] statement is not hearsay if . . . [t]he

statement is offered against a party and is . . . a statement by a coconspirator of a

party during the course and in furtherance of the conspiracy.”

In the unpublished opinion, United States v. Osorio-Soto, No. 96-2184,

1998 WL 58106 (10th Cir. Feb. 12, 1998), this court considered whether the same

taped conversation was properly admitted against Zamudio’s codefendant Osorio-

Soto. 2 In Osorio-Soto, this court held that the taped conversation between

2
Zamudio’s codefendant Osorio-Soto argued that all three taped
conversations were inadmissible against him: the January 26, 1995 conversation
between Megallon and Zamudio, the February 14, 1995 telephone conversation
between Megallon and Pando, and the February 22, 1995 conversation between
Megallon and Zamudio. See United States v. Osorio-Soto, No. 96-2184, 1998 WL
58106, at *1 (10th Cir. Feb. 12, 1998). Zamudio does not appeal admission of the
two taped conversation between him and Megallon because a party’s own
statement may be offered against the party under Fed. R. Evid. 801(d)(2)(A).
Zamudio and Osorio-Soto, however, are in the same position as to the taped
conversation between Megallon and Pando because neither was a party to the
conversation. Both argue that the taped conversation between Megallon and
Pando constituted inadmissible hearsay.

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Megallon and Pando did not occur “during the course” of the conspiracy and was

therefore inadmissible against Osorio-Soto. See id. at *2. Having previously

concluded that the taped conversation did not occur during the course of the

conspiracy, this court now holds that the tape and transcript were inadmissible

against Zamudio. This court, however, may uphold Zamudio’s conviction if

admission of the taped conversation and transcript constituted harmless error.

Because Zamudio argues admission of the taped conversation violated his

confrontation rights, we apply the constitutional harmless error standard. See

United States v. Joe, 8 F.3d 1488, 1497 (10th Cir. 1993). Accordingly, this court

will uphold Zamudio’s conviction only if it concludes the error was “‘harmless

beyond a reasonable doubt.’” Id. (quoting Chapman v. California, 386 U.S. 18,

24 (1967)). Upon reviewing the record, this court concludes admission of the

taped conversation between Pando and Megallon was harmless beyond a

reasonable doubt because the evidence it contained implicating Zamudio was

extremely weak, while other evidence of his guilt was overwhelming. Cf.

Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986) (listing “importance of the

witness’[s] testimony in the prosecution’s case” and “the overall strength of the

prosecution’s case” among factors courts should consider in determining whether

violation of Confrontation Clause constitutes harmless error); Harrington v.

California, 395 U.S. 250, 253-54 (1969) (holding violation of confrontation rights

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under Bruton was harmless beyond a reasonable doubt because case against

defendant was overwhelming).

The taped conversation between Megallon and Pando did not mention

Zamudio by name. The only apparent reference to Zamudio during the

conversation was made by Pando in response to Megallon’s statements about the

police. Megallon stated that the police had contacted him and he did not know

what to tell the police because they already had the trailer. In reply Pando stated,

“What do you want me tell you” and repeatedly instructed Megallon to ask “that

guy” about the situation. During direct examination, Megallon testified that when

Pando told him to talk to “that guy,” he understood Zamudio was the person

referenced. There is nothing else in the taped conversation implicating Zamudio.

In contrast to the limited evidence of guilt found in the taped conversation

between Megallon and Pando, other evidence of Zamudio’s guilt was

overwhelming. Agent Mendonca testified that Zamudio admitted entering into an

agreement with Megallon to transport cocaine and admitted going with Megallon

to rent a suitable trailer. Megallon also testified that he met with Zamudio and

Pando at a tire shop and that during this meeting, the plan to transport drugs was

discussed. Megallon testified that he was asked to participate in the scheme by

renting a trailer and both Zamudio and Pando informed him of how the trailer was

to be used. He further testified that both Zamudio and Pando accompanied him to

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the rental place and when a suitable trailer was not found, Megallon allowed

Zamudio and Pando to use his leased trailer. Additionally, Megallon testified that

he subsequently observed new rivets three to four feet from the front of the trailer

he delivered to Zamudio and Pando, which is consistent with Danny Martinez’s 3

testimony that the seized trailer had a false compartment in the front containing

cocaine. Finally, the government introduced two taped conversations between

Zamudio and Megallon, discussing the conspiracy and the trailer. Any negative

inference which could be drawn from the challenged tape recorded conversation

between Pando and Megallon pales in comparison to the overwhelming evidence

of guilt found elsewhere in the record. This court therefore concludes the error in

admitting the taped conversation was harmless beyond a reasonable doubt.

The judgment of the United States District Court for the District of New

Mexico is AFFIRMED.

Judge McWilliams concurs in the result.

ENTERED FOR THE COURT:

Michael R. Murphy
Circuit Judge

3
Danny Martinez, who is a sergeant with the Motor Transportation Division
of the Taxation and Revenue Department for the State of New Mexico, was
involved in the search of the seized trailer.

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