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The Honorable Ortrie D. Smith, United States District Judge for the Western

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 03-3246

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* Western District of Missouri.

Roger Rogelio Salcedo, *

 *

Appellant. *

*

*

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Submitted: January 14, 2004

Filed: March 4, 2004 

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Before BYE, SMITH, and COLLOTON, Circuit Judges.

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BYE, Circuit Judge.

A jury convicted Roger Salcedo of conspiring to distribute more than five

kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846, and

the district court1

 sentenced him to 240 months imprisonment. Salcedo appeals

contending the district court abused its discretion by admitting into evidence a
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statement Salcedo made to law enforcement prior to his arrest, where the government

had purportedly indicated in a pretrial conference it did not intend to rely upon any

of Mr. Salcedo's statements. We affirm.

On October 28, 2002, several Drug Enforcement Administration (DEA) agents

were conducting surveillance on Salcedo and four other individuals in Kansas City,

Kansas. At the time the officers moved in to make their arrests, Salcedo was walking

out of a garage stall at an apartment complex. Inside the stall was a cardboard box,

which one of Salcedo's companions had placed in the garage, later found to contain

eleven kilogram-sized bundles of cocaine packaged for distribution. When an agent

asked Salcedo what was going on, Salcedo said he was changing oil on the car parked

in the garage. The officers observed the hood and trunk of the car had been raised,

but found no oil changing equipment. They did find, however, evidence suggesting

Salcedo was in the process of hiding the cocaine in the car: the carpeting inside the

trunk had been pulled away exposing the natural voids of the trunk, Salcedo had

small plastic nuts and rivets inside his right-front coat pocket which were identical

to ones found in the trunk, and a DEA fingerprint specialist found Salcedo's

fingerprint on one of the eleven cocaine bundles. After being arrested and informed

of his Miranda rights, Salcedo chose not to give a formal statement.

Salcedo, along with the four other individuals, was indicted for conspiracy to

distribute more than five kilograms of cocaine. During a pretrial scheduling

conference the Honorable John T. Maughmer asked the parties, "Are there statements

from the defendants?" The government prosecutor replied there were statements by

Salcedo's four co-defendants.

During her opening statement at trial, the prosecutor referred to Salcedo's

statement about changing the oil on the car parked in the garage. Defense counsel did

not object. In his opening statement, defense counsel claimed Salcedo was "changing

the lights" on the car when the DEA agents showed up. At the conclusion of the
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prosecutor's opening statement, defense counsel asked for a bench conference and

told the court he understood the government "was not going to use any statement of

Mr. Salcedo." The AUSA explained she planned to introduce the oral oil change

statement, a statement which appeared in the agent's report the government had

disclosed to the defense. Defense counsel told the court "[j]ust so the record is clear,

I am aware of the statements. I just did not think they were going to rely upon the

statements." The district court ruled that since Salcedo was not claiming surprise, the

government was entitled to elicit the oil change statement from the DEA agent.

During trial, the agent testified Salcedo claimed he was changing the oil when

confronted, and had not said anything about fixing the lights on his car. 

The jury returned a guilty verdict, and Salcedo filed a motion for new trial

based on the government's use of the oil change statement. The district court denied

the motion, and this appeal followed. 

II

Where, as here, a challenge to the admission of evidence is preserved for

appellate review, this court reviews for an abuse of discretion. United States v.

Whitetail, 956 F.2d 857, 861 (8th Cir. 1992). The admissibility of evidence lies

within the sound discretion of the trial judge, and rulings on the admission of

evidence will not be disturbed on appeal absent an abuse of that discretion. United

States v. Weddell, 890 F.2d 106, 107 (8th Cir. 1989).

Salcedo contends he prepared for trial and developed his theory of defense on

the assumption, derived from the pretrial scheduling conference, that the government

did not intend to use as evidence any of Salcedo's statements to law enforcement.

Salcedo avers the government's change of position prejudiced his ability to defend

himself at trial.
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The government response to the magistrate's question "are there statements"

had nothing to do with Salcedo's oil change statement, but rather inquired as to the

existence of post-arrest, post-Miranda statements which might be subject to a motion

to suppress. The government notes this interpretation of the magistrate's question and

the government's response thereto is supported by the fact the other co-defendants'

"statements" to which the AUSA referred when questioned by the magistrate could

arguably have been subject to motions to suppress. By contrast, the prosecution did

not possess or intend to introduce any post-Miranda statements that Salcedo made to

investigators. 

We find Salcedo did not reasonably construe the government's response

regarding "any statements" as a guarantee the government would not use the oil

change statement at trial. As Salcedo concedes, the government disclosed the

existence of the statement. There is no indication the government attempted to

unfairly surprise Salcedo, nor is there any indication Salcedo was unfairly surprised.

Even assuming, arguendo, Salcedo was reasonable in interpreting the

government's comments during the scheduling conference to mean it would not use

the oil change statement at trial, to prevail on appeal Salcedo would still have to

establish he suffered prejudicial error through the admission of this statement. See

Spillers v. Housewright, 692 F.2d 524, 526 (8th Cir. 1982). We find Salcedo cannot

establish such prejudice.

Although the admission of the oil change statement demonstrated Salcedo's

willingness to lie, which was damaging to his case, the evidence against him was very

strong. The evidence showed Salcedo and his four co-defendants were part of a

larger conspiracy to transport eleven kilos of cocaine. Salcedo's conviction rested

upon not only the incriminating testimony of one of his co-defendants, but also on the

direct observations of the DEA agents who observed Salcedo working on the vehicle,

his possession of nuts and rivets from the trunk, forensic testimony which showed his
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fingerprints upon on one of the cocaine bundles, and upon strong circumstantial

evidence. Further, neither exculpatory claim – that of changing the oil or changing

the taillight – is persuasive. There were no tools, equipment, or parts present for

changing either.

For these reasons, we affirm the judgment and conviction.

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