United States v. Mendez ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
NERIO ERNESTO MENDEZ, a/k/a Nerio  No. 01-4483
Mendez Parada, a/k/a Neto, a/k/a
Nery Mendez,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Gerald Bruce Lee, District Judge.
(CR-00-399-A)
Submitted: March 20, 2002
Decided: April 18, 2002
Before NIEMEYER, WILLIAMS, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Frank Salvato, Alexandria, Virginia, for Appellant. Paul J. McNulty,
United States Attorney, Morris J. Parker, Jr., Assistant United States
Attorney, Alexandria, Virginia, for Appellee.
2 UNITED STATES v. MENDEZ
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Nerio Ernesto Mendez appeals from his conviction and sentence
for conspiracy to possess 500 grams or more of cocaine, in violation
of 21 U.S.C.A. § 846 (West 1999 & Supp. 2001), and unlawful re-
entry into the United States after deportation, in violation of 8
U.S.C.A. § 1326(a) (West 1999 & Supp. 2001). On appeal, Mendez
challenges the government’s failure to file a new information prior to
trial on the superseding indictment, the sufficiency of the evidence to
support the amount of drugs attributable to him at sentencing, and the
exclusion of trial evidence. For the reasons set forth below, we affirm
Mendez’s conviction and sentence.
Mendez first claims that because the government failed to refile an
information regarding a prior conviction before trial on the supersed-
ing indictment, the provisions of 21 U.S.C. § 851 were violated. We
review this claim for plain error in the face of Mendez’s failure to
object in the district court. United States v. Ford, 88 F.3d 1350, 1355
(4th Cir. 1996).
Prior to Mendez’s first trial on the charge of conspiracy to distrib-
ute 500 grams or more of cocaine, the same as was charged in the
superseding indictment, the government filed a § 851 notice of
enhanced sentence, specifically referring to Mendez’s 1992 convic-
tion for felony possession of cocaine. The sole changes in the super-
seding indictment were omission of an overt act referencing
Mendez’s illegal re-entry into the United States, and inclusion of a
forfeiture count.
The government is not required to refile its notice of enhanced sen-
tence after return of a superseding indictment. United States v.
Wright, 932 F.2d 868, 882 (10th Cir. 1991). Moreover, once filed, an
information need not be refiled for each consecutive trial in the same
court. United States v. Williams, 59 F.3d 1180, 1185 (11th Cir. 1995).
UNITED STATES v. MENDEZ 3
Here, the crime charged in the superseding indictment was not fun-
damentally changed, and the overt acts relating to the drug transac-
tions in both indictments were identical. In addition, both indictments
were charged in the same court and involved the same defense coun-
sel. Mendez was given ample notice that he was subject to an
enhanced sentence of 120 months imprisonment if the jury convicted
him of conspiracy to distribute 500 grams or more of cocaine. We
find without difficulty that the government’s failure to refile an infor-
mation prior to Mendez’s second trial did not result in the imposition
of a plainly erroneous sentence.
Mendez next challenges the amount of drugs attributable to him at
sentencing. A district court’s finding regarding the quantity of drugs
is factual in nature and will be overturned only if clearly erroneous.
United States v. D’Anjou, 16 F.3d 604, 614 (4th Cir. 1994). Here, the
district court’s determination was based on trial evidence, as well as
the jury’s finding beyond a reasonable doubt that Mendez conspired
to distribute 500 grams or more of cocaine. Specifically, the district
court based its finding of drug quantity on the evidence of the 387
grams of cocaine seized during controlled purchases involving
Mendez, and the testimony of several conspirators who purchased
cocaine from and who sold cocaine for Mendez.
Mendez claims that the primary evidence to support the district
court’s calculation of the drug weight attributable to him beyond the
387 grams was the "completely unreliable" testimony of informants.
For example, he cites to the testimony of Jose Gonzalez, whose testi-
mony he claims changed from the first trial to the second trial. He
also alleges that the testimony of other informants was speculative as
to amounts, and that still others testified that in the past they received
money from the police in drug cases in exchange for their coopera-
tion.
Some of the testimony Mendez challenges was corroborated by
other evidence. Also, as Mendez himself acknowledges, even the
uncorroborated testimony of an accomplice may be sufficient to sus-
tain a conviction. United States v. Burns, 990 F.2d 1426, 1439 (4th
Cir. 1993). Here, Mendez had ample opportunity to cross-examine all
the government’s witnesses as to bias and inconsistent statements, as
well as put forth his own evidence. The record reflects that he took
4 UNITED STATES v. MENDEZ
complete advantage of this opportunity. Despite Mendez’s defense,
the jury apparently believed the government’s witnesses, having
reached a guilty verdict on the offense of conspiracy to distribute 500
grams or more of cocaine. Likewise, the district judge at sentencing
found the government’s evidence to be credible as to drug weight.
This is a finding we will not set aside. United States v. Sheffer, 896
F.2d 842, 844 (4th Cir. 1990).
The final issue Mendez raises on appeal is that the district court
abused its discretion in excluding evidence of carbon copies of checks
the defense sought to introduce by way of the testimony of the person
to whom the checks allegedly were made payable. We afford substan-
tial deference to a district court’s decision to exclude evidence and
will not reverse that decision absent clear abuse of discretion. United
States v. Moore, 27 F.3d 969, 974 (4th Cir. 1994). In addition, we
subject the district court’s evidentiary rulings to harmless error
review. United States v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997).
The check carbons at issue here did not bear the endorsement of
the testifying witness and were marked "non-negotiable." The defense
sought to introduce the documents in an effort to bolster the testimony
of Franklin Parada, the alleged payee, that he cashed and kept the
money from the checks, approximately $4,000, in the residence he
shared with Mendez. According to the defense theory, the checks
would support the contention that the approximately $4,000 in cash
found at the house belonged to Parada, and was not drug money
belonging to Mendez.
We find that the exclusion of the check carbons by the district court
was not an abuse of discretion. First, the check carbons were drawn
on the checking account of the payor, who did not testify. Parada had
no first-hand knowledge of the check carbons. Moreover, because the
district court permitted Parada to testify that he cashed pay checks
totaling approximately $4,000 and kept the money at the residence he
shared with Mendez, the exclusion of the check carbons did not pre-
vent Mendez from asserting the defense that the approximately
$4,000 in cash seized from his house was from a source other than
cocaine sales. Finally, given the plethora of evidence of Mendez’s
guilt, including video and audiotapes of controlled buys of cocaine
involving Mendez and his conspirators, as well as the cocaine actually
UNITED STATES v. MENDEZ 5
seized at the time of Mendez’s arrest, the exclusion of the evidence
of the check carbons did not affect Mendez’s substantial rights.
United States v. Brooks, 111 F.3d at 371.
We therefore affirm Mendez’s conviction and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED