## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-4130

___________ United States of America, * * Appellee, * * Appeal from the Unite d States v. * District Court for the * Southern D istrict of Iowa. Cirilo Mendoza, * * Appellant. *

___________ Submitted: June 10, 1997 Filed: August 14, 1997

___________ Befo re RICHARD S. ARNOLD, Chief Judge, HENLEY, Senio r Circuit Judge, and WOLLMAN, Circuit Judge.

___________ HENLEY, Senior Circuit Judge.
A jur y convicted Cirilo Mendoza of conspiracy t o dist ribute and possession with the intent to distribut e methamphetamine, in violation of 21 U.S.C. §§ 841, 846
. TheThe Honorable Charles R. Wolle, C hief Judge, United States District Court for 1 the Southern District of Iowa. -2- district court sentenced him to the mandatory minimu m 1 senten ce of 240 months. On appeal Mendoza attacks hi s conviction and sentence. We affirm.
Background Me ndoza and Martha Wheeler were charged wit h conspiring to distribute and possess methamphetamine
. Afte r the government appealed a district court orde r granting Wheeler's suppression motion, the di strict court granted Mendoza's severance motion and set hi s trial date for O ctober 2, 1995. However, on that date the cour t entered an order precluding the government from using a stateme nt Wheeler had made implicating Mendoza. Th e gove rnment again appealed. On appeal, this cour t reversed "the district court's granting Wheeler' s suppressio n motion," but affirmed its "order prohibiting the government from using Wheeler's statement t o impl icate Mendoza." United States v. Mendoza , 85 F.3 d 1347, 1352 (8th Cir. 1996).

After the mandate issued on July 16, 1996, th e di strict court set Mendoza's trial for September 3 , 1996. On August 29, 1996, Mendoza filed a motion t o dismiss the case, alleging violations of the Speedy Trial Act, 18 U.S.C. §§ 3161-74, and the Sixth Amendment
.-3-

Also, on August 29, the government filed an informatio n rega rding Mendoza's previous felony convictions for a se ntence enhancement under 21 U.S.C. § 851. Mendoz a filed a motion to strike the information, all eging it was unti mely. The district court denied both motions, an d Mendoza's trial began as scheduled.
The evidence viewed in a light most favorable to th e jury verdict reveals the-4-

follow ing. On July 28, 1995, Carmella House agreed t o coop erate in a federal-state investigation o f methamphet amine trafficking. House told the agents that her source for methamphetamine was Martha Wheeler an d that Wheeler's source was Mendoza. House also told th e ag ents that she was going to purchase one pound o f methamphet amine from Wheeler later that day and, as in a past purchase, the drugs would be placed in a culver t next to a tire and a metal pipe beside a gravel road i n a wooded a rea. At 12:20 p.m. several agents went to the drop site, but found no drugs. At 12:55 p.m. Hous e receive d a telephone call from Wheeler. After makin g arrangemen ts, House, accompanied by an undercover agent, went to m eet Wheeler. House gave Wheeler the money, but Whee ler told House that the methamphetamine was not a t the drop site, but that "he" would deliver it to the site by 4:00 p.m.

In th e meantime, around 2:00 p.m., a mail carrie r noticed a car go off the road into a ravine n ear the drop sit e. A few moments later, the carrier saw Mendoz a walk ing out of the wooded area and offered assistance
. A sh ort time later, a tow-truck and a deputy sherif f arrived. When the sheriff asked Mendoza why he was i n the area, he replied he needed to use the woods t o defecate. Around 3:00 p.m , federal and state agents en rou te to the drop site saw the wrecker and Mendoza. O n searching the site, the agents found a pound o f-5-

methamphetamine in a tire near a tube in a cu lvert. The agen ts radioed the deputy sheriff to hold Mendoza. Th e dep utytold them Mendoza's excuse for being in th e woods
. The agents looked for defecation, but did no t find any. Discussion On appeal Mendoza raises numerous issues, all o f which are without merit. The delay occasioned by th e government's appeal did not violate the Speedy Trial Act,
see-6-

18 U. S.C. § 3161(h)(1)(E) (excluding "delay resultin g from any interlocutory appeal"), or the Sixt h Amendment, see United States v. Thirion , 813 F.2d 146, 1 54 (8th Cir. 1987) ("unusual case in which the sixth amendment righ t has been violated when the act's time limit has bee n met"). Nor, as Mendoza argues, did the delay prejudic e him. C ontrary to his assertion, the government was no t requ ired to file its information regarding prio r convictions before the start of the first tri al date. "We have h eld that, for purposes of section 851, th e government must file its information before jur y selection begins." United States v. Robinson , 110 F.3 d 1320, 1327 (8th Cir. 1997).
Although Mendoza is correct that mere proximity to a crime scene is in itself an insufficient basi s upon which to co nvict, see id. at 1324-25, in this case th e evid ence showed far more than mere proximity. Indeed , there was overwhelming circumstantial evidenc e to support the conspiracy and possession verdicts. In a ddition, the distr ict court did not err in allowing a witness' in

court i dentification of Mendoza as the person she sa w near the drop site in mid-July 1995 or in admitting th e stat ement of an uncharged co-conspirator under Fed. R
. Evid. 801(d)(2)(E).
Last, Mendoza contends that the imposition of th e mandatory minimum sentence is unconstitutiona l. However,-7-

as he c oncedes, this court has rejected his argument
. See , e. g. , United States v. Prior , 107 F.3d 654, 658-6 0 (8th Cir. 1997) (mandatory life sentence for possessio n wi th intent to distribute methamphetamine does no t viol ate Due Process or Equal Protection Clauses, th e Ei ghth Amendment, or separation-of-powers doctrine) , petiti on for cert. filed , (U.S. Apr. 3, 1997) (No. 96

- 8478).-8-

Accordingly, we affirm the district court's judgment
. A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT .