NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 5, 2009
Decided October 6, 2009
Before
WILLIAM J. BAUER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 08‐3465
Appeal from the United States District
UNITED STATES OF AMERICA, Court for the Southern District of Indiana,
Plaintiff‐Appellee, Indianapolis Division.
v. No. 1:04‐CR‐00155
ANTONIO MENDOZA, David F. Hamilton,
Defendant‐Appellant. Chief Judge.
O R D E R
A jury found Antonio Mendoza guilty of conspiracy to possess and distribute
methamphetamine, 21 U.S.C. §§ 846, 841(a)(1), and possession with intent to distribute, id.
§ 841(a)(1). The district court sentenced him to life imprisonment, the mandatory minimum
sentence given the quantity of drugs and Mendoza’s prior felony drug convictions. See id.
§ 841(b)(1)(A). Mendoza appeals, but his appointed counsel move to withdraw because
they cannot identify any nonfrivolous argument to pursue. See Anders v. California, 386 U.S.
738 (1967). Mendoza opposes dismissal of his appeal. See CIR. R. 51(b).
At Mendoza’s request counsel scrutinized the record searching for errors in the jury
selection and sentencing proceedings but uncovered no potential defects. Counsel mention
this process only to demonstrate that they discharged their duty to review the record for
possible appellate claims, and because they conclude that the jury selection and sentencing
No. 08‐3465 Page 2
proceedings yielded no potential issues, we will not further discuss those aspects of
Mendoza’s case. See United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997); United States v.
Wagner, 103 F.3d 551, 553 (7th Cir. 1996). We instead confine our review to those potential
issues evaluated in counsel’s facially adequate brief and Mendoza’s response. See United
States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).
Before trial the government moved in limine to prohibit any reference to two letters
written by Hugo Soto, a government witness, regarding Mario Garcia, a defendant in a
separate drug case. Soto had first written the government proclaiming Garcia’s innocence,
but in his second letter, he asserted that he had lied in the first letter and offered to testify
against Garcia. Prosecutors moved to exclude these letters as irrelevant and likely to
confuse or prejudice the jury. In an oral ruling, the district court granted the government’s
motion without elaboration.
At trial the government called witnesses who testified about Mendoza’s involvement
in methamphetamine trafficking in Indianapolis, Indiana. Soto and his wife, Darlene,
testified that Mendoza became their methamphetamine supplier in 2001. Darlene said that
after she collected orders from buyers, her husband would contact Mendoza to arrange
delivery of the drugs. Soto, Darlene, and Darlene’s mother, Wanda McQueen, all recounted
that they had received deliveries of up to a pound from Mendoza’s brother Jose, his brother‐
in‐law, or another man named “Longoria.” The witnesses stated that exchanges were made
in public places such as grocery stores and at the bar Soto owned in south Indianapolis. In
addition, Soto, Darlene, and McQueen testified that they picked up drugs at one of the
houses Mendoza used to process methamphetamine. During one of those drug runs,
McQueen recounted, Jose was at the house and methamphetamine was cooking on the
stove. Officer Steven Swarm of the Indianapolis Police Department confirmed that utility
bills for the several houses associated with Mendoza’s drug operations were registered in
the names of his wife, Jose, or his brother‐in‐law.
In January 2002 Jason Johnson, a government informant, contacted Darlene to buy
three ounces of methamphetamine and, if those drugs were satisfactory, an additional
pound. According to Darlene, she saw Soto use her cell phone to call Mendoza to relay
Johnson’s order. Officer Swarm verified from telephone records that a call was made from
Darlene’s phone to a cell phone registered to Mendoza shortly after Johnson had contacted
Darlene. Johnson testified that the following night he and Bobbie James, an undercover
police officer, received their three‐ounce order from Soto outside of his bar. Johnson said
that he and Officer James later went into the bar to retrieve the remaining pound of drugs.
Johnson and Darlene confirmed that Mendoza and his brother‐in‐law were also at the bar
that night and that Mendoza sat alone while his brother‐in‐law left the bar with Soto to pick
up the drugs intended for Johnson and Officer James. James could not remember seeing
No. 08‐3465 Page 3
Mendoza, but another police officer who was conducting surveillance testified that a car
matching the description of Mendoza’s pulled into the bar’s parking lot on the night of the
controlled buy. According to Officer James, after Soto and Mendoza’s brother‐in‐law
returned to the bar, Darlene met Johnson in a back room and handed over one pound of
methamphetamine. Johnson, in turn, paid Soto for the drugs. Darlene testified that she
then saw Soto and Mendoza go to the bar’s kitchen where Soto handed over Johnson’s
money.
The government presented evidence of additional controlled buys between
government informants and the Sotos. Mendoza did not testify or present evidence at trial.
During closing argument, his lawyer attacked the credibility of the government’s witnesses,
emphasizing the fact that the witnesses’ plea agreements made cooperation with the
government mandatory and that they had received reduced sentences in exchange for their
cooperation.
The jury found that the conspiracy and possession counts involved 500 or more
grams of methamphetamine. At sentencing Mendoza made no objections to the presentence
investigation report. Given the amount of drugs and Mendoza’s two prior felony drug
convictions, the district court imposed the mandatory sentence of life imprisonment on each
count. See 21 U.S.C. § 841(b)(1)(A).
One possible argument evaluated by counsel is whether the district court abused its
discretion by prohibiting mention of Soto’s letters about Garcia. Rule 608(b) of the Federal
Rules of Evidence bars extrinsic evidence of conduct bearing on a witness’s character for
truthfulness, but a trial judge has discretion to allow cross‐examination about such conduct.
FED. R. EVID. 608(b); United States v. Holt, 486 F.3d 997, 1002 (7th Cir. 2007). Rule 403
establishes the standard for the district court’s exercise of discretion in evidentiary matters
and permits even relevant evidence to be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice or confusion. FED. R. EVID. 403; United States
v. Seymour, 472 F.3d 969, 971 (7th Cir. 2007). We review evidentiary rulings for abuse of
discretion, but even when error is found, we will not reverse if the error was harmless.
United States v. Woods, 556 F.3d 616, 620 (7th Cir. 2009); United States v. Bonty, 383 F.3d 575,
579 (7th Cir. 2004).
Here, the government moved to exclude Soto’s about‐face concerning Garcia on the
grounds that this information was irrelevant and, even if relevant, would be prejudicial and
confusing to the jury. In granting the government’s motion, the district court did not
specify which evidentiary rules justified excluding Soto’s letters about Garcia. But we have
held that district courts “retain wide latitude to impose reasonable limitations on
cross‐examination based on concerns about harassment, prejudice, confusion of the issues
No. 08‐3465 Page 4
or interrogation that is only marginally relevant.” United States v. Saunders, 166 F.3d 907,
920 (7th Cir. 1999). Our review of the district court’s exercise of discretion in limiting cross‐
examination is informed by whether the defendant had a “reasonable chance” to discredit
the witness and pursue his own theory of the case. United States v. Williamson, 202 F.3d 974,
978 (7th Cir. 2000). In this case Mendoza’s lawyer tried to discredit Soto by asking him
about his plea agreement, which made cooperation mandatory, and the reduced sentence he
received in exchange for his testimony. Pressing him to explain why he exonerated Garcia
until striking a deal with the government might have assisted counsel’s cross‐examination,
see United States v. Skelton, 514 F.3d 433, 443‐44 (5th Cir. 2008); United States v. McGee, 408
F.3d 966, 979‐82 (7th Cir. 2005), but even if we were to conclude that counsel should have
been permitted to inquire about the letters while questioning Soto, we would also conclude
that Mendoza was not harmed by the court’s ruling because Soto’s testimony was
duplicative of, and corroborated by, the testimony of Darlene, McQueen, and Johnson. See
United States v. Beck, 557 F.3d 619, 621 (8th Cir. 2009); United States v. Span, 170 F.3d 798, 803
(7th Cir. 1999).
The only other argument counsel considers is whether Mendoza could challenge the
sufficiency of the evidence supporting his convictions. We view the trial evidence in the
light most favorable to the government and will uphold the juryʹs verdict if “any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see United States v. Bailey, 510 F.3d 726,
733 (7th Cir. 2007). A conspiracy conviction under § 846 requires an agreement between
two or more persons to fulfill a particular criminal objective, such as possessing or
distributing drugs. United States v. Kincannon, 567 F.3d 893, 897 (7th Cir. 2009); United States
v. Colon, 549 F.3d 565, 569 (7th Cir. 2008). For a possession conviction under § 841, even
without proof of actual possession, a defendant may nevertheless be held accountable on a
theory of constructive possession, which may be established by circumstantial evidence.
United States v. Campbell, 534 F.3d 599, 605‐06 (7th Cir. 2008); United States v. Parra, 402 F.3d
752, 761 (7th Cir. 2005). Soto, Darlene, and McQueen all testified that Mendoza utilized
Jose, Longoria, and his brother‐in‐law to deliver his methamphetamine. McQueen also
recounted seeing Jose monitoring the manufacture of methamphetamine at one of the
houses Mendoza used for processing drugs. In addition, Johnson, Darlene, and two police
officers testified to Mendoza’s role in supplying the methamphetamine for the controlled
buy in January 2002. Based on this evidence, it would be frivolous to argue that no rational
jury could have concluded beyond a reasonable doubt that Mendoza conspired with at least
Jose, Longoria, and his brother‐in‐law to possess methamphetamine for distribution and
that he possessed methamphetamine in January 2002 as charged.
In his Rule 51(b) response, Mendoza first argues that his statutory right to a speedy
trial was violated because of the two‐and‐one‐half‐year delay between indictment and trial.
No. 08‐3465 Page 5
But this argument is frivolous because Mendoza waived his rights under The Speedy Trial
Act by failing to move to dismiss the indictment, see 18 U.S.C. § 3162(a)(2); United States v.
Gearhart, 576 F.3d 459, 462 (7th Cir. 2009).
Mendoza then proposes to argue that trial counsel was ineffective for requesting
continuances and for failing to object to the government’s use of a prior conviction at trial
and at sentencing. Challenges to counsel’s performance, however, are best brought on
collateral review and not direct appeal. Massaro v. United States, 538 U.S. 500, 504‐05 (2003);
United States v. Recendiz, 557 F.3d 511, 531 (7th Cir. 2009). This is because the trial record in
many cases will not reveal the facts necessary to decide whether counsel’s actions were
supported by a reasonable strategy. Massaro, 538 U.S. at 505; United States v. Jackson,
546 F.3d 801, 814 (7th Cir. 2008). In addition, a defendant who pursues an ineffective‐
assistance claim on direct appeal cannot relitigate the claim on collateral attack unless there
has been an intervening change of law or a discovery of previously withheld evidence.
United States v. Peleti, 576 F.3d 377, 383, (7th Cir. 2009); Peoples v. United States, 403 F.3d 844,
846 (7th Cir. 2005). Thus, we would decline to consider whether Mendoza could maintain a
nonfrivolous ineffective‐assistance claim.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.