United States v. Cirilo Mendoza ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 96-4130
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United States of America, *
*
Appellee, *
* Appeal from the United
States
v. * District Court for the
* Southern District of Iowa.
Cirilo Mendoza, *
*
Appellant. *
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Submitted: June 10, 1997
Filed: August 14, 1997
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Before RICHARD S. ARNOLD, Chief Judge, HENLEY, Senior
Circuit Judge, and
WOLLMAN, Circuit Judge.
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HENLEY, Senior Circuit Judge.
A jury convicted Cirilo Mendoza of conspiracy to
distribute and possession with the intent to distribute
methamphetamine, in violation of 21 U.S.C. §§ 841, 846.
The
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district court sentenced him to the mandatory minimum
sentence of 240 months. On appeal Mendoza attacks his
conviction and sentence. We affirm.
Background
Mendoza and Martha Wheeler were charged with
conspiring to distribute and possess methamphetamine.
After the government appealed a district court order
granting Wheeler's suppression motion, the district court
granted Mendoza's severance motion and set his trial date
for October 2, 1995. However, on that date the court
entered an order precluding the government from using a
statement Wheeler had made implicating Mendoza. The
government again appealed. On appeal, this court
reversed "the district court's granting Wheeler's
suppression motion," but affirmed its "order prohibiting
the government from using Wheeler's statement to
implicate Mendoza." United States v. Mendoza, 85 F.3d
1347, 1352 (8th Cir. 1996).
After the mandate issued on July 16, 1996, the
district court set Mendoza's trial for September 3,
1996. On August 29, 1996, Mendoza filed a motion to
dismiss the case, alleging violations of the Speedy Trial
Act, 18 U.S.C. §§ 3161-74, and the Sixth Amendment.
1
The Honorable Charles R. Wolle, Chief Judge, United States District Court for
the Southern District of Iowa.
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Also, on August 29, the government filed an information
regarding Mendoza's previous felony convictions for a
sentence enhancement under 21 U.S.C. § 851. Mendoza
filed a motion to strike the information, alleging it was
untimely. The district court denied both motions, and
Mendoza's trial began as scheduled.
The evidence viewed in a light most favorable to the
jury verdict reveals the
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following. On July 28, 1995, Carmella House agreed to
cooperate in a federal-state investigation of
methamphetamine trafficking. House told the agents that
her source for methamphetamine was Martha Wheeler and
that Wheeler's source was Mendoza. House also told the
agents that she was going to purchase one pound of
methamphetamine from Wheeler later that day and, as in a
past purchase, the drugs would be placed in a culvert
next to a tire and a metal pipe beside a gravel road in
a wooded area. At 12:20 p.m. several agents went to the
drop site, but found no drugs. At 12:55 p.m. House
received a telephone call from Wheeler. After making
arrangements, House, accompanied by an undercover agent,
went to meet Wheeler. House gave Wheeler the money, but
Wheeler told House that the methamphetamine was not at
the drop site, but that "he" would deliver it to the site
by 4:00 p.m.
In the meantime, around 2:00 p.m., a mail carrier
noticed a car go off the road into a ravine near the drop
site. A few moments later, the carrier saw Mendoza
walking out of the wooded area and offered assistance.
A short time later, a tow-truck and a deputy sheriff
arrived. When the sheriff asked Mendoza why he was in
the area, he replied he needed to use the woods to
defecate. Around 3:00 p.m , federal and state agents en
route to the drop site saw the wrecker and Mendoza. On
searching the site, the agents found a pound of
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methamphetamine in a tire near a tube in a culvert. The
agents radioed the deputy sheriff to hold Mendoza. The
deputy told them Mendoza's excuse for being in the
woods. The agents looked for defecation, but did not
find any.
Discussion
On appeal Mendoza raises numerous issues, all of
which are without merit. The delay occasioned by the
government's appeal did not violate the Speedy Trial Act,
see
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18 U.S.C. § 3161(h)(1)(E) (excluding "delay resulting
from any interlocutory appeal"), or the Sixth Amendment,
see United States v. Thirion, 813 F.2d 146, 154 (8th Cir.
1987) ("unusual case in which the sixth amendment right
has been violated when the act's time limit has been
met"). Nor, as Mendoza argues, did the delay prejudice
him. Contrary to his assertion, the government was not
required to file its information regarding prior
convictions before the start of the first trial date. "We
have held that, for purposes of section 851, the
government must file its information before jury
selection begins." United States v. Robinson, 110 F.3d
1320, 1327 (8th Cir. 1997).
Although Mendoza is correct that mere proximity to a
crime scene is in itself an insufficient basis upon which
to convict, see id. at 1324-25, in this case the
evidence showed far more than mere proximity. Indeed,
there was overwhelming circumstantial evidence to support
the conspiracy and possession verdicts. In addition, the
district court did not err in allowing a witness' in-
court identification of Mendoza as the person she saw
near the drop site in mid-July 1995 or in admitting the
statement of an uncharged co-conspirator under Fed. R.
Evid. 801(d)(2)(E).
Last, Mendoza contends that the imposition of the
mandatory minimum sentence is unconstitutional. However,
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as he concedes, this court has rejected his argument.
See, e.g., United States v. Prior, 107 F.3d 654, 658-60
(8th Cir. 1997) (mandatory life sentence for possession
with intent to distribute methamphetamine does not
violate Due Process or Equal Protection Clauses, the
Eighth Amendment, or separation-of-powers doctrine),
petition for cert. filed, (U.S. Apr. 3, 1997) (No. 96-
8478).
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Accordingly, we affirm the district court's judgment.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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