                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                               JAN 3 2000
                                   TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                         No. 99-3057
                                                     (D.C. No. 98-CR-10079-3)
 CARLOS L. CANEDO,                                      (District of Kansas)

          Defendant-Appellant.




                                ORDER AND JUDGMENT*


Before TACHA, Circuit Judge, KELLY, Circuit Judge, and McWILLIAMS, Senior
Circuit Judge.


      In a second superceding indictment, Carlos L. Canedo, the appellant, Isidro M.

Zazueta and Daniel N. Cantu were charged in eight counts with various drug and drug

related crimes. Canedo was named as a defendant in four of the eight counts. In Count 1

Canedo was charged with conspiring from a date unknown to July 14, 1998 with Zazueta

and Cantu and with others, both known and unknown, to distribute controlled substances,

namely methamphetamine, in violation of 21 U.S.C. § 841(a)(1). In Count 5 Canedo and



      *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
Cantu were charged with distributing methamphetamine in June 1998 in violation of 21

U.S.C. § 841(a)(1) and 18 U.S.C. § 2. In Count 7 all three defendants were charged with

distributing a pound of methamphetamine on July 14, 1998, in violation of 21 U.S.C. §

841(a)(1) and 18 U.S.C. § 2. In Count 8 Canedo and Cantu were charged with carrying a

firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. §§ 2,

924(c).

       In a joint trial with Cantu, Canedo was convicted on all of the four counts in which

he was a defendant. He was later sentenced to imprisonment for 181 months to be

followed by five years of supervised release. He now appeals his conviction and

sentence.1

       On appeal, Canedo contends that the district court committed reversible error in

three particulars: (1) the district court erred when it allowed the government to introduce

evidence of prior criminal acts by his co-defendant Cantu, in violation of Federal Rule of

Evidence 404(b); (2) the government in its closing argument to the jury commented, over

objections, on Canedo’s failure to testify, thereby depriving him of his constitutional right

not to testify; and (3) the evidence was legally insufficient to sustain any of his several

convictions. We disagree and therefore affirm.




       Cantu appealed his conviction to this court. United States v. Cantu, No. 99-3056.
       1

That appeal was dismissed for lack of prosecution pursuant to 10th Cir. R. 42.1 on June 9,
1999.

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                                      I. Other Crimes

       David Zimmerman was a government witness at the joint trial of Canedo and

Cantu. His testimony formed the basis for Count 5 of the second superceding indictment

which charged Canedo and Cantu with distributing methamphetamine in June, 1998. In

this regard, Zimmerman testified that in June, 1998, he made two purchases of

methamphetamine from Canedo and Cantu. By way of some background, Zimmerman

stated that he did not meet Canedo until early June, 1998, but that he first met Cantu in

1991 and had drug dealings with Cantu from that time on. Counsel for Canedo objected

to such testimony on the grounds that Federal Rule of Evidence 404(b) had not been

followed. Counsel for Cantu then joined in that objection, which was overruled. On

appeal, Canedo argues that he is entitled to a new trial because Zimmerman testified that

he had known Cantu since 1991 and had drug dealings with him in the ensuing years. We

disagree.

       The government argues here, as it did in the district court, that such evidence was

not 404(b) evidence of other crimes or “bad acts,” but, on the contrary, was “direct

evidence” tying Cantu into a long standing conspiracy to distribute methamphetamine in

the Wichita, Kansas area. Count 1 of the second superceding indictment charged Cantu,

Canedo and Zazueta of conspiracy with others “known and unknown” from an unknown

date in the past to July 14, 1998 to distribute methamphetamine. Zimmerman’s testimony

constituted direct evidence tying Cantu into such conspiracy at its very inception. The


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fact that Canedo did not become a part of that conspiracy until later, does not render

testimony that Cantu became a conspirator much earlier, inadmissible. It should be

remembered that this was a joint trial of Cantu and Canedo. There was no error in

allowing Zimmerman to testify as to when he first met Cantu, and the general nature of

their relationship in the years preceding June and July, 1998. Such was clearly admissible

as tending to show that Cantu was a part of this on-going conspiracy. It should be noted

that Zimmerman did not testify in any detail whatsoever concerning events occurring

between 1991 and June, 1998, though he was examined, and cross-examined, in detail

concerning his contacts with Cantu and Canedo in June, 1998.

                               II. Prosecutorial Misconduct

       Canedo argues that the government prosecutor in his final closing argument to the

jury indirectly commented on the fact that Canedo did not testify in his own behalf.

Objection was made and the district court advised the jury that counsel’s argument was

not evidence, and that the jury should decide the case on the basis of the evidence

adduced at trial. We find no reversible error. The statements were made to counter

arguments made by counsel for Cantu and Canedo in their argument to the jury. There, of

course, was no statement by the prosecutor that since neither Canedo nor Cantu had

testified in their own defense, they must be guilty. Rather, in one instance the prosecutor

made reference to the closing argument of Cantu’s attorney which did not really relate to

Canedo. The prosecutor did state that they had not searched Canedo’s residence because


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he had given the authorities more than one home address. And he did argue that on July

14, 1998, Canedo and Cantu had followed Zazueta to the parking lot in order to

“monitor” Zazueta’s delivery of the methamphetamine to the undercover agent, none of

which was improper under the circumstances. Any alleged improper comment made by

the prosecutor must be viewed in the context of the entire case. United States v. Begay,

144 F.3d 1336, 1339 (10th Cir. 1998). The present case is distinguishable from United

States v. Barton, 731 F.2d 669 (10th Cir. 1984), relied on by Canedo. In Barton, counsel

indirectly commented on the defendant’s failure to testify and directly commented on the

defendant’s post arrest silence. Additionally, the trial court did not give a limiting

instruction on the defendant’s post arrest silence.

                                  III. Insufficient Evidence

       Canedo contends that the evidence is insufficient to support his conviction. His

argument is confined to the sufficiency of the evidence as it relates to the July 14, 1998

delivery of methamphetamine by Zazueta to an undercover agent in the latter’s

automobile in the parking lot of a Food 4 Less Market. (Counts 7 and 8). There is no

challenge, as we understand it, to his conviction on Courts 1 and 5, i.e., conspiracy and

the deliveries in June, 1998 to Zimmerman. In this regard, certainly Zimmerman’s

testimony, if believed by the jury, which it apparently was, is sufficient to sustain

Canedo’s conviction on those counts. Zimmerman testified that Canedo “carried” the

methamphetamine involved in the June activities.


                                             -5-
       As concerns the delivery on July 14, 1998, (Counts 7 and 8), we believe there is

sufficient evidence, some direct and some circumstantial, to show that Cantu and Canedo

were the “source” of the methamphetamine which Zazueta delivered to the undercover

agent. The “surveillance” testimony supports such. Further, Cantu and Canedo followed

the vehicle that Zazueta drove to the parking lot where the delivery occurred and they

parked a short distance from the scene of the delivery. The obvious inference is that they

were “monitoring” the delivery, no doubt wanting to make certain that they would get

paid from the money which the undercover agent was to give Zazueta. And when

searched, a firearm was found in Canedo’s boot. In short, the record supports Canedo’s

conviction on Counts 7 and 8, as well as Counts 1 and 5.

       Judgment affirmed.

                                                 ENTERED FOR THE COURT.


                                                 Robert H. McWilliams
                                                 Senior Circuit Judge




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