* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 6 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. CIPRIANO ZAMUDIO, Defendant-Appellant. No. 96-2182 (District of New Mexico) (D.C. No. CR 94-721-JC)

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, McWILLIAMS and MURPHY , Circuit Judges.

Cipriano Zamudio, Alfredo Pando, and Eleno Osorio-S oto were tried jointly and convicted of conspiracy to possess with intent to distribute more than five kilograms of cocaine. Zamudio appeals his convicti on claiming that (1) a codefendant’s counsel improperly commented on his r ight to remain silent; (2) the limitations placed on Zamudio’s cross-examination o f Agent Mendonca violated-2-

his right of confrontation; and (3) the trial courtimproperly admitted hearsay statements by Pando through the testimony of formercodefendant Jose Megallon in violation of his confrontation rights. This cou rt affirms. Background In November 1994, authorities found over five kilog rams of cocaine in a hidden compartment of a trailer. Subsequent invest igation revealed that Jose Megallon had leased the trailer. In January 1995, Megallon voluntarily went to a Drug Enforcement Administration (DEA) office after being contacted by police. He provided federal agents with a statement and agr eed to cooperate by allowing the agents to tape conversations between him and other alleged conspirators. Zamudio, Pando, Osorio-Soto, Megallon, and other al leged coconspirators were indicted for conspiracy to possess with intentto distribute more than five kilograms of cocaine. Megallon pleaded guilty to c onspiracy and agreed to testify for the government. Zamudio, Pando, and Osorio-Sot o were tried jointly and all three were convicted of conspiracy in January 1996. Zamudio’s appeal centers on the testimony presented by two government witnesses at the trial: Tony Mendonca, a DEA agent, and Megallon. At trial, Agent Mendonca testified that he, along w ith Agent Chris Hoover, arrested Zamudio and took Zamudio to a DEA office w here he was questioned. Referring to a report, Mendonca testified that Zamu dio, after being read his-3-

Mirandarights, admitted entering into an agreement with M egallon to use a trailer for the transportation of cocaine. Mendonc a also testified that Zamudio admitted going with Megallon to lease a trailer sui table for the construction of a secret compartment and admitted, when a satisfactory trailer was not found, agreeing to use a trailer Megallon already possesse d. On cross-examination, counsel for Osorio-Soto askedMendonca whether the statement he attributed to Zamudio was made aft er Zamudio’s arrest. When Mendonca answered in the affirmative, Osorio-Soto’s counsel made a motion for severance or to strike the statement, arguing: I don’t have any guarantee that Mr. Zamudio is goin g to be taking the stand, so I would ask the Court to strike any state ment in regards to what Mr. Mendonca said that Mr. Zamudio said in reg ards to my client, Mr. Osorio-Soto. As an alternative, I will go ahead and ask for a severance in the case if Mr. Zamudio does nottake the stand. Further explaining his objection, Osorio-Soto’s cou nsel stated:

Your Honor, based on the testimony of Mr. Mendonca, he states that he questioned Mr. Zamudio and that Mr. Zamudio showed that there was in fact a conspiracy involving the t railer. That’s the reason for asking for a severance, Your Honor. The trailer is going to be used to implicate my client, Mr. Osorio-Soto. I don’t have any way to cross-examination [sic] Mr. Zamudio regardin g the accuracy or inaccuracy of the statement allegedly made by hi m. The court denied Osorio-Soto’s motion. Counsel for Zamudio then cross-examined Mendonca. In her crossexamination of Mendonca, she attempted to use AgentHoover’s report,-4-

Government Exhibit 20, which set out completely Zam udio’s post-arrest statements, including statements describing Pando’s and Osorio-Soto’s involvement in the conspiracy. Both Osorio-Soto an d Pando objected to use of the report on hearsay grounds. When the trial court inquired into the government’s position, the prosecutor stated his be lief that certain portions of the report needed to be redacted. The trial court rese rved ruling on whether the document could be received in whole or in part. Th e government then advised the trial court that it had a redacted copy of the exhi bit. Neither Osorio-Soto nor Pando objected to the use of the redacted report. The government, therefore, withdrew Government Exhibit 20 and Zamudio’s counse l continued crossexamining Mendonca using the redacted report, Defen dant’s Exhibit 2-A. Because the report was prepared by Agent Hoover, rather than Mendonca, the redacted report was provisionally received by the c ourt, subject to publication only upon testimony by Hoover verifying the document. Later during the cross-examination of Mendonca, Zam udio’s counsel asked if Zamudio had provided information to the agents about “the agreement between Osorio and Pando to smuggle cocaine.” Osorio-Soto’ s counsel immediately objected to the question and moved for severance. The court denied severance and overruled the objection. Mendonca answered the question in the negative and Zamudio’s counsel continued the cross-examination. The government then-5-

objected on the grounds that allowing Zamudio’s cou nsel to elicit testimony regarding what Zamudio said about the other codefen dants would create a Bruton problem. See Bruton v. United States , 391 U.S. 123 (1968). The court sustained the government’s objection and limited Zamudio’s cr oss-examination to the line of inquiry that was addressed in direct examination

. The other government witness whose testimony is rel evant to this appeal is Megallon. Megallon, a coconspirator turned governm ent informant, testified about his involvement in the conspiracy and interac tions with the defendants. Additionally, through Megallon’s testimony, the gov ernment introduced and played three conversations which were taped while M egallon was cooperating with the DEA: a January 26, 1995 conversation betw een Megallon and Zamudio; a February 14, 1995 telephone conversation between Megallon and Pando; and a February 22, 1995 conversation between Megallon andZamudio. The jury was also provided with English and Spanish transcripts of these taped conversations, which were primarily in Spanish. While Zamudio doe s not challenge the admissibility of the taped conversations between Me gallon and himself, he contends the trial court erred in admitting the tel ephone conversation between Pando and Megallon. Pando, who fled after the firs t day of trial, did not testify, but the trial of the charges against him proceeded in absentia

.1 At the outset of the trial, the district judge inst ructed the parties that “no

bench conferences [would] be permitted” and that al l speaking objections would be considered either “before the day’s business beg ins, during recess or at the end of the day.” While this court appreciates the need for efficiency, the judge’s instructions created problems for the parties in th is case. Had the judge permitted limited but necessary bench conferences, counsel fo r Osorio-Soto could have explained his objection to the testimony outside th e hearing of the jury. This issue therefore could have been avoided entirely. -6- Comment on Zamudio’s Failure to Testify On appeal, Zamudio argues that Osorio-Soto’s counse l impermissibly commented on Zamudio’s failure to testify in violat ion of his Fifth Amendment rights. Specifically, in commenting on his motion for severance or to strike statements attributed to Zamudio by Agent Mendonca, Osorio-Soto’s counsel, in the presence of the jury, stated: “I don’t have any guarantee that Mr. Zamudio is going to be taking the stand”; “I will go ahead and ask for a severance in the case if Mr. Zamudio does not take the stand”; and “I don ’t have any way to crossexamin[e] Mr. Zamudio regarding the accuracy or ina ccuracy of the statement allegedly made by him.” 1 Zamudio did not object to these statements during t rial. Therefore, our review is limited to plain error. See United States v. Toro-Pelaez , 107 F.3d 819, 827 (10th Cir.), cert. denied, 118 S. Ct. 129 (1997). This court may correct an error not raised at trial only if we find there is “(1) error, (2) that is plain, and (3) that affect[s] substantial rights. If all thre e conditions are met, [this] court-7-

may then exercise its discretion to notice a forfei ted error, but only if (4) the error seriously affect[s] the fairness, integrity, or pub lic reputation of judicial proceedings.” Johnson v. United States , 117 S. Ct. 1544, 1548-49 (1997) (alterations in original) (citations and internal q uotations omitted); see also Fed. R. Crim. P. 52(b). For purposes of this appeal, we assume, without dec iding, that the statements Zamudio challenges created error and the error is plain. Before this court may correct such an error, however, the defen dant has the burden of showing that the error affected substantial rights, which generally means the defendant must show he was prejudiced by the error. See United States v. Olano , 507 U.S. 725, 734 (1993); see also Toro-Pelaez , 107 F.3d at 827-28. Furthermore, even if defendant meets his burden of showing the error affected substantial rights, this court may not order correc tion unless it also finds the error seriously affected the fairness, integrity or publi c reputation of judicial proceedings. See Johnson , 117 S. Ct. at 1550. In this case, Zamudio has fa iled to show he was prejudiced by the alleged error. Furth ermore, even if Zamudio had shown prejudice, there exists no basis in the recor d for concluding that the error seriously affected the fairness, integrity or publi c reputation of judicial proceedings.-8-

Zamudio argues the statements were prejudicial because (1) they were direct comments on his failure to testify; (2) the nature of the government’s case was such that only his own testimony could have ful ly contradicted the government’s evidence; and (3) the government’s cas e relied heavily on the testimony of Megallon, a convicted informant, and t he challenged testimony of Agent Mendonca regarding Zamudio’s admission. A nu mber of other factors, however, mitigate any prejudicial effect the statem ents could have had on the jurors’ deliberations. First, the statements, while made in the presence o f the jury, were not directed at the jurors. This case is therefore dis tinguishable from cases involving comments made to jurors during closing arguments. Second, the comments did not suggest the jurors sho uld infer Zamudio’s guilt from his failure to testify. Cf. United States v. Wing , 104 F.3d 986, 990-91 (7th Cir. 1997) (holding court’s remarks, while dir ectly commenting on defendant’s failure to testify, did not constitute plain error because they did not invite jurors to infer guilt from defendant’s failu re to testify and there was substantial evidence of defendant’s guilt); United States v. Sarno , 73 F.3d 1470, 1498 (9th Cir. 1995) (holding single improper comme nt by prosecutor regarding defendant’s failure to testify did not mandate reve rsal when comment did not invite jury to infer guilt from silence and judge g ave jurors curative instruction);-9-

United States v. Mena , 863 F.2d 1522, 1534 (11th Cir. 1989) (“When the ‘comment’ [on the failure of the accused to testify ] comes from an actor (such as counsel for a codefendant) without an institutional interest in the defendant’s guilt, . . . . the court should ask whether the com ment actuallyor implicitly invited the jury to infer guilt from silence.”). R ather, the comments focused only on the ability of Osorio-Soto to cross-examine Zamu dio regarding statements Zamudio made to agents after his arrest. Third, the jurors were properly instructed that the y may not infer guilt from a defendant’s failure to testify. Specifically, up on conclusion of the closing arguments, the judge instructed the jury that “a De fendant is presumed by law to be innocent. The law does not require a Defendant to prove his innocence or produce any evidence at all, and no inference whatsoever may be drawn from the election of a Defendant not to testify .” (Emphasis added.) Jurors are presumed to follow the instructions given to them. See United States v. Coleman , 7 F.3d 1500, 1506 (10th Cir. 1993). Finally, contrary to Zamudio’s assertions, there wa s substantial evidence of his guilt. Not only did Mendonca testify as to Zam udio’s post-arrest admission and Megallon testify as to Zamudio’s involvement inthe conspiracy, but the government also introduced two taped conversations in which Megallon and-10-

Zamudio discussed the conspiracy and what was to be done about the trailer which government agents seized. Given the numerous factors mitigating any effect of the statements regarding Zamudio’s failure to testify, Zamudio fai led to meet his burden of showing he was prejudiced by the alleged error. Mo reover, the alleged error did not seriously affect the fairness, integrity or pub lic reputation of judicial proceedings. This court therefore holds that the s tatements by Osorio-Soto’s counsel do not constitute reversible error.
Restriction on Defendant’s Cross-Examination of Mendonca Zamudio contends the district court impermissibly r estricted his crossexamination of Agent Mendonca by prohibiting inquiry into portions of Zamudio’s post-arrest statement. On direct examination, Agent Mendonca testified that, among other things, Zamudio admitte d agreeing to use a trailer for the transportation of cocaine and admitted going wi th Megallon to rent a suitable trailer. During the cross-examination of Agent Men donca, Zamudio’s counsel tried to elicit testimony regarding other statement s Zamudio made at the time of his arrest. Because these additional statements ap parently would implicate codefendants Pando and Osorio-Soto, creating a Bruton problem, the district court limited Zamudio’s counsel to the line of inquiry ad dressed in direct examination and allowed only a redacted version of defendant’s post-arrest statement to be-11-

used. Zamudio maintains that this limitation on hi s cross-examination of Agent Mendonca violated his confrontation rights. He arg ues that because Agent Mendonca testified about portions of his post-arres t statement on direct examination, the district court was required to all ow him to cross-examine Agent Mendonca concerning other portions of the post-arre st statement which were necessary to place the admitted evidence into conte xt. “We review de novo whether a defendant’s confrontat ion rights were violated by reason of improper cross-examination re strictions . . . .” United States v. Pedraza , 27 F.3d 1515, 1529 (10th Cir. 1994). While the C onfrontation Clause guarantees defendants an “ opportunityfor effective cross-examination,” it does not guarantee a “cross-examination that is eff ective in whatever way, and to whatever extent, the defense might wish.” Delaware v. Fensterer , 474 U.S. 15, 20 (1985); accord Pedraza , 27 F.3d at 1529. While the government was entitled to introduce Zamu dio’s admissions under Fed. R. Evid. 801(d)(2)(A), Zamudio was not s imilarly entitled to offer his own exculpatory statements through the testimony of Agent Mendonca because such statements, if offered to prove the truth of t he matter asserted, would constitute hearsay. See Fed. R. Evid. 801, 802. Zamudio, however, maintain s that because certain portions of his post-arrest st atements were admitted on direct-12-

examination, the district court was required to adm it other portions of his statement to place the admitted evidence into conte xt. Rule 106 of the Federal Rules of Evidence provides that “[w]hen a writing or recorded statement or part thereof is introducedby a party, an adverse party may require the introduction at that time of any ot her part or any other writing or recorded statement which ought in fairness to be co nsidered contemporaneously with it.” While Rule 106 explicitly applies only t o writings and recorded statements, the rule of completeness embodied in Ru le 106 is “‘substantially applicable to oral testimony, as well’ by virtue of Fed. R. Evid. 611(a), which obligates the court to ‘make the interrogation and presentation effective for the ascertainment of the truth.’” United States v. Mussaleen , 35 F.3d 692, 696 (2d Cir. 1994) (quoting United States v. Alvarado , 882 F.2d 645, 650 n.5 (2d Cir. 1989)); see also United States v. Li , 55 F.3d 325, 329 (7th Cir. 1995); United States v. Haddad, 10 F.3d 1252, 1258-59 (7th Cir. 1993); 1 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 106.02[3] & nn.12-13 (Joseph M. McLaughlin ed., 2d ed. 1997). According ly, a redacted version of a defendant’s post-arrest statement is impermissible if it “unfairly distort[s] the original” or “exclude[s] substantially exculpatory information.” Mussaleen , 35 F.3d at 696; see also United States v. Washington , 952 F.2d 1402, 1404 (D.C. Cir. 1991); United States v. Kaminski , 692 F.2d 505, 522 (8th Cir. 1982).-13-

The rule of completeness, however, does not necessarily require admission of a defendant’s entire statement. Rather, only th ose portions which are “relevant to an issue in the case” and necessary “to clarify or explain the portion already received” need to be admitted. Haddad, 10 F.3d at 1259; see also Li , 55 F.3d at 329-30; cf. United States v. Branch , 91 F.3d 699, 728 (5th Cir. 1996) (discussing Rule 106 and noting that “[a]lthough different circ uits have elaborated Rule 106's ‘fairness’ standard in different ways, common to al l is the requirement that the omitted portion be relevant and necessary to qualif y, explain, or place into context the portion already introduced” (internal citations and quotations omitted)), cert. denied, 117 S. Ct. 1466, 1467 (1997). In determining whe ther a disputed portion of a statement must be admitted, the trial court sh ould consider whether “(1) it explains the admitted evidence, (2) places the admi tted evidence in context, (3) avoids misleading the jury, and (4) insures fair an d impartial understanding of the evidence.” Li , 55 F.3d at 330; see also Haddad, 10 F.3d at 1259. Zamudio’s claim that his confrontation rights were violated, therefore, turns on whether the excluded portions of his post- arrest statement were necessary to explain or place into context the evidence admitted during direct examination. If the rule of completeness was not violated by the exclusion of this evidence, the limitation placed on Zamudio’s cross-examination wa s proper because the excluded portions were not otherwise admissible. Cf. United States v. Thuna , 786-14-

F.2d 437, 442 n.10 (1st Cir. 1986) (noting that bec ause redaction of report of defendant’s post-arrest statements was not prejudic ial to defendant, the district court was within its discretion to limit cross-exam ination regarding the report). Zamudio did not designate the written report of his post-arrest statements as part of the record on appeal nor did he make a p roffer as to what the omitted portions of his statement would have shown. This c ourt is therefore unable to evaluate the precise content of the omitted portion s of Zamudio’s statement. In his opening brief Zamudio simply states that the district court improperly limited inquiry into those portions of his post-arr est statement “wherein he attempted to shift the blame from himself to co-def endants Osorio and Pando.” Specifically, Zamudio complains that his counsel wa s unable to inquire into “the context of [his] admissions, the purpose of Pando and Osorio in renting the trailer, and other aspects of an alleged agreement between Osorio and Pando of which Zamudio was not part.” In his reply brief he asserts that the omitted portions “attempted to place into context his activ ities in the alleged conspiracy and contrast them with the purposeful involvement o f the co-defendants Osorio and Pando.” It appears, therefore, that the exclud ed portions of Zamudio’s statement detail Osorio-Soto’s and Pando’s involvem ent in the conspiracy and attempt to shift the blame from Zamudio to his coco nspirators based primarily on their more meaningful involvement in the scheme. Z amudio has not argued that-15-

the excluded portions of the statement show he did not participate in the conspiracy in the manner Agent Mendonca testified t o on direct examination nor does he argue that the portions show his actions we re done only under duress. The excluded portions therefore do not appear to be exculpatory. This court cannot conclude the omitted portions of Zamudio’s post-arrest statements were necessary to explain the admitted e vidence or place that evidence into context. If, as it appears, the omitted porti ons of Zamudio’s post-arrest statement did no more than show Osorio-Soto’s and P ando’s involvement in the scheme, the rule of completeness did not require th eir admission because OsorioSoto’s and Pando’s involvement is not necessary to explain or place into context Zamudio’s act of agreeing to participate in the con spiracy or his act of accompanying Megallon to rent a trailer. Cf. Li , 55 F.3d at 330 (holding statement that defendant was threatened by codefend ant was not necessary to explain or understand defendant’s admission to maki ng payment to codefendant absent a coercion defense). Because the record on appeal is insufficient to support Zamudio’s assertion that his confrontation rights were violated and because Zamudio’s appellate presentation does not s uggest any legitimate basis for admission of the redacted portions of his state ment, exclusion of the testimony

was not error. Admission of Taped Conversation2 Zamudio’s codefendant Osorio-Soto argued that all three taped

conversations were inadmissible against him: the J anuary 26, 1995 conversation between Megallon and Zamudio, the February 14, 1995 telephone conversation between Megallon and Pando, and the February 22, 19 95 conversation between Megallon and Zamudio. See United States v. Osorio-Soto , No. 96-2184, 1998 WL 58106, at *1 (10th Cir. Feb. 12, 1998). Zamudio do es not appeal admission of the two taped conversation between him and Megallon bec ause a party’s own statement may be offered against the party under Fe d. R. Evid. 801(d)(2)(A). Zamudio and Osorio-Soto, however, are in the same p osition as to the taped conversation between Megallon and Pando because nei ther was a party to the conversation. Both argue that the taped conversati on between Megallon and Pando constituted inadmissible hearsay. -16- Zamudio’s final argument is that the tape and trans cript of the February 14, 1995 telephone conversation between Megallon and Pando constituted inadmissible hearsay and that the district court’s erroneous admission of that taped conversation and transcript into evidence vio lated his confrontation rights because Pando did not testify at the trial. The go vernment maintains the taped statements were properly admitted as coconspirator statements under Fed. R. Evid. 801(d)(2)(E), which provides that “[a] statem ent is not hearsay if . . . [t]he statement is offered against a party and is . . . astatement by a coconspirator of a party during the course and in furtherance of the c onspiracy.” In the unpublished opinion, United States v. Osorio-Soto , No. 96-2184, 1998 WL 58106 (10th Cir. Feb. 12, 1998), this courtconsidered whether the same taped conversation was properly admitted against Zamudio’s codefendant OsorioSoto. 2 In Osorio-Soto , this court held that the taped conversation betwe en-17-

Megallon and Pando did not occur “during the course ” of the conspiracy and was therefore inadmissible against Osorio-Soto. See id . at *2. Having previously concluded that the taped conversation did not occurduring the course of the conspiracy, this court now holds that the tape and transcript were inadmissible against Zamudio. This court, however, may uphold Z amudio’s conviction if admission of the taped conversation and transcript constituted harmless error. Because Zamudio argues admission of the taped conve rsation violated his confrontation rights, we apply the constitutional h armless error standard. See United States v. Joe , 8 F.3d 1488, 1497 (10th Cir. 1993). Accordingly, this court will uphold Zamudio’s conviction only if it conclud es the error was “‘harmless beyond a reasonable doubt.’” Id. (quoting Chapman v. California , 386 U.S. 18, 24 (1967)). Upon reviewing the record, this court concludes admission of the taped conversation between Pando and Megallon was h armless beyond a reasonable doubt because the evidence it contained implicating Zamudio was extremely weak, while other evidence of his guilt w as overwhelming. Cf

. Delaware v. Van Arsdall , 475 U.S. 673, 684 (1986) (listing “importance of the witness’[s] testimony in the prosecution’s case” an d “the overall strength of the prosecution’s case” among factors courts should con sider in determining whether violation of Confrontation Clause constitutes harml ess error); Harrington v. California , 395 U.S. 250, 253-54 (1969) (holding violation of confrontation rights-18-

under Bruton was harmless beyond a reasonable doubt because cas e against defendant was overwhelming). The taped conversation between Megallon and Pando d id not mention Zamudio by name. The only apparent reference to Za mudio during the conversation was made by Pando in response to Megal lon’s statements about the police. Megallon stated that the police had contac ted him and he did not know what to tell the police because they already had th e trailer. In reply Pando stated, “What do you want me tell you” and repeatedly instr ucted Megallon to ask “that guy” about the situation. During direct examinatio n, Megallon testified that when Pando told him to talk to “that guy,” he understood Zamudio was the person referenced. There is nothing else in the taped con versation implicating Zamudio. In contrast to the limited evidence of guilt found in the taped conversation between Megallon and Pando, other evidence of Zamud io’s guilt was overwhelming. Agent Mendonca testified that Zamudi o admitted entering into an agreement with Megallon to transport cocaine and ad mitted going with Megallon to rent a suitable trailer. Megallon also testifie d that he met with Zamudio and Pando at a tire shop and that during this meeting, the plan to transport drugs was discussed. Megallon testified that he was asked to participate in the scheme by renting a trailer and both Zamudio and Pando inform ed him of how the trailer was to be used. He further testified that both Zamudio and Pando accompanied him to3 Danny Martinez, who is a sergeant with the Motor Tr ansportation Division

of the Taxation and Revenue Department for the Stat e of New Mexico, was involved in the search of the seized trailer. -19- the rental place and when a suitable trailer was no t found, Megallon allowed Zamudio and Pando to use his leased trailer. Addit ionally, Megallon testified that he subsequently observed new rivets three to four f eet from the front of the trailer he delivered to Zamudio and Pando, which is consist ent with Danny Martinez’s 3 testimony that the seized trailer had a false compa rtment in the front containing cocaine. Finally, the government introduced two taped conversations between Zamudio and Megallon, discussing the conspiracy andthe trailer. Any negative inference which could be drawn from the challenged tape recorded conversation between Pando and Megallon pales in comparison to the overwhelming evidence of guilt found elsewhere in the record. This courttherefore concludes the error in admitting the taped conversation was harmless beyon d a reasonable doubt. The judgment of the United States District Court fo r the District of New Mexico is AFFIRMED

. Judge McWilliams concurs in the result.
ENTERED FOR THE COURT:

Michael R. Murphy Circuit Judge