United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 96-4130

___________

United States of America, *

*

Appellee, *

* Appeal from the United

States

v. * District Court for the

* Southern District of Iowa.

Cirilo Mendoza, *

*

Appellant. *

___________

Submitted: June 10, 1997

 Filed: August 14, 1997

___________

Before RICHARD S. ARNOLD, Chief Judge, HENLEY, Senior

Circuit Judge, and

 WOLLMAN, Circuit Judge.

___________

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 
The Honorable Charles R. Wolle, Chief Judge, United States District Court for 1

the Southern District of Iowa.

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district court sentenced him to the mandatory minimum

1

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.
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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' incourt 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.