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This order and judgment is not binding precedent, except under the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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