                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           MAY 26 2000
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    UNITED STATES OF AMERICA,

                  Plaintiff-Appellee,
                                                          No. 98-2268
    v.                                           (D.C. No. CIV-96-737 SC/LCS)
                                                            (D.N.M.)
    ALFONSO PEDRAZA,

                  Defendant-Appellant.


                              ORDER AND JUDGMENT          *




Before BALDOCK , BRISCOE , and LUCERO , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination

of this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the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.
        A jury convicted defendant-appellant Alfonso Pedraza of one count of

conspiracy to possess with intent to distribute more than five kilograms of

cocaine. See 21 U.S.C. § 846; 18 U.S.C. § 2. We previously upheld his

conviction on direct appeal.     See United States v. Pedraza , 27 F.3d 1515

(10th Cir. 1994). He now appeals from the district court’s order denying his

motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255.

        Appellant raises seventeen issues for our consideration. In order to proceed

in this appeal, he must obtain a certificate of appealability (COA).     See 28 U.S.C.

§ 2253(c)(1)(B). The district court granted a COA on a single issue: whether

appellant had shown “ineffective assistance of counsel for allowing prejudicially

erroneous evidence to be sent to the jury during their deliberations.” Appellant’s

Opening Br., addendum “C.”

        The grant of a COA is issue-specific; we do not hear and decide issues on

which a COA has not been granted.         See Ross v. Ward , 165 F.3d 793, 802

(10th Cir.) (Kelly, J., concurring; capital case),   cert. denied , 120 S. Ct. 208

(1999). An appellant who wishes us to consider additional issues should file

a request for an expanded COA.        See id. at 803. Appellant has not requested an

expanded COA to encompass his other issues. Therefore, we do not consider

them.




                                              -2-
       Appellant’s fifteenth appellate issue most clearly fits within the district

court’s grant of COA. The government concedes, however, that the district court

may also have intended its order granting COA to apply to all other issues

involving evidence that went to the jury.      Accordingly, we consider each of the

issues raised involving presentation of evidence.

       On appeal from the denial of a § 2255 motion, we review the district

court’s legal rulings de novo and its findings of fact for clear error.   See United

States v. Cox , 83 F.3d 336, 338 (10th Cir. 1996). “Whether [appellant] received

effective assistance of counsel is a mixed question of law and fact that we review

de novo.” United States v. Prows , 118 F.3d 686, 691 (10th Cir. 1997).

       To prevail on his claims of ineffective assistance of counsel, appellant

“must show that counsel’s representation fell below an objective standard of

reasonableness,” Strickland v. Washington , 466 U.S. 668, 688 (1984), and that the

deficient performance prejudiced him,       see id. at 687. To establish prejudice, he

must show “that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Id. at 694. In addition to the extensive trial transcript in this matter, we have

consulted the transcript of the evidentiary hearing on this § 2255 motion at which

both appellant and his trial counsel testified concerning the ineffectiveness issues.




                                              -3-
       1. “Prejudicial erroneous testimony”

       Appellant’s theory at trial was that there were actually two drug

conspiracies, a “Florida” conspiracy and a “New Mexico” conspiracy. He

argued that he was involved only in the earlier Florida conspiracy, and that his

part in that conspiracy terminated when he was arrested and incarcerated in

February 1990.

       To substantiate its case against appellant and the other defendants at trial,

the government played a number of taped telephone conversations for the jury.

In one of these conversations, Peter Irelan told informant George Anthony Seek

that the cocaine operation would start up again upon “Pedraza’s release.” It is

undisputed that Irelan was referring to Enrique Pedraza, appellant’s brother, who

was incarcerated in Columbia at the time. Appellant contends, however, that the

jury could have misinterpreted Irelan’s statement as referring to himself, thus

weakening his case that he had no involvement in the charged New Mexico

conspiracy. He argues that his attorney should have cross-examined Seek at trial

to establish that the reference was made to Enrique Pedraza.

       We have previously held that the record in this case contains “ample

evidence” from which the jury could conclude that appellant was guilty of

participation in the conspiracy charged.    Pedraza , 27 F.3d at 1524-25. Even if his

attorney erred by failing to cross-examine on this point, appellant fails to show


                                           -4-
that any confusion amongst the jury occasioned by the ambiguous reference to his

brother prejudiced him within the meaning of     Strickland . His claim therefore

lacks merit.


      2. Stipulation to Admission of Recordings and Transcripts

      Appellant argues that his counsel performed ineffectively when she

stipulated to the admission of thirty taped telephone recordings and transcripts.

The district court used the tapes and transcripts to determine the existence of the

conspiracy so that coconspirator hearsay statements could be introduced.      See

Fed. R. Evid. 801(d)(2)(E). The jury also later heard the tapes and read the

transcripts and were permitted to take both to the jury room.

      Appellant argues that the stipulation relieved the government of its

responsibility to establish his participation in the conspiracy by independent

evidence. He contends that the tapes were hearsay and could not themselves be

used to establish the existence of the conspiracy.

      A court may consider hearsay coconspirator statements in making the initial

determination of whether a conspiracy exists.     See Bourjaily v. United States ,

483 U.S. 171, 181 (1987). The government must also present independent

evidence linking a defendant to the conspiracy; however, this independent

evidence need not be substantial.    See United States v. Owens , 70 F.3d 1118,

1124-25 (10th Cir. 1995). Here, the district court relied on independent testimony

                                           -5-
connected with guilty pleas entered by Nelson Pedraza and Jairo Salazar-Trujillo.

R. Vol. IX at 304. Even if this independent testimony did not affirmatively link

appellant to the conspiracy, the government presented additional, non-hearsay

evidence at trial that did so. Had appellant’s counsel refused to stipulate to

admission of the tapes, sufficient evidence to link appellant to the conspiracy

could have been presented at a “   James hearing,” see United States v. James ,

590 F.2d 575 (5th Cir. 1979), thus permitting use of the tapes against him.

Appellant has failed to show prejudice from his counsel’s stipulation to

admission of the tapes.

      Appellant also argues that there were material discrepancies between the

tapes and the government’s transcripts, and that stipulation to the admissibility of

the transcripts precluded him from objecting to their accuracy. Appellant fails to

identify these discrepancies, however, or to argue how they prejudiced him.      1



      Appellant complains repeatedly in his brief that by stipulating to the

admission of the thirty tapes, his counsel gave up any ability to conduct

cross-examination as to their accuracy. Appellant fails to point to any facts that




1
       Appellant cites us to page 894 of the trial transcript. On this page,
appellant’s counsel objects to the lack of authentication of the voices on one of
the tapes. This objection was withdrawn after the prosecution indicated it would
have witness George Anthony Seek lay a foundation for admission of the tape.
R. Vol. XIII at 894-95.

                                           -6-
show that the taped conversations were not what they purported to be. As to the

substance of the conversations, counsel testified at the evidentiary hearing that

      we reserved the right to impeach, to cross-examine the witnesses, to
      do everything in our power to take those tapes apart in addition to
      which we had the opportunity as defense counsel to introduce any
      other tapes which we felt supported our theories of the case.

R. Vol. III at 90.

      Appellant’s complaints about the stipulation to admission of the tapes

lack merit.


      3. Missing Tapes

      Appellant contends that the defense was denied tapes of nearly

200 telephone calls that informant Seek placed to Columbia. The government

explains that these calls were not taped for various reasons, including

malfunctioning equipment. Appellant argues that his attorney should have

investigated the missing tapes and refused to stipulate to use of any tapes until

all the conversations were accounted for.

      We considered a Brady claim involving the alleged missing tapes on direct

appeal. See Pedraza , 27 F.3d at 1526-27. We concluded that the defendants had

“failed to produce any convincing evidence that these tapes ever existed.”    Id.

at 1527. Appellant provides us with no more evidence than we had on direct

appeal to substantiate his claim that tapes were withheld from the defense and/or


                                           -7-
destroyed. If the tapes did not exist, counsel could not have been ineffective in

failing to obtain them. Moreover, appellant provides nothing but his own

speculation that the tapes would have included exculpatory evidence.


       4. Hearsay evidence

       Appellant complains that his attorney failed to object to a recorded hearsay

statement by Edward Mitchell that predated his involvement in the conspiracy.

In the statement, Mitchell mentioned appellant and advised Seek that appellant

would be contacting him to set up a deal with expense money. This conversation

related to the alleged Florida conspiracy. Appellant’s theory at trial was that he

was involved in the Florida conspiracy, but not the subsequent New Mexico

conspiracy. He therefore fails to show prejudice from admission of the statement.

       Appellant further complains about coconspirator hearsay statements made

in connection with the dismissed possession charge. He argues that his counsel

should have requested a limiting instruction that any such statements made by his

coconspirators after his arrest were not relevant as to him. Appellant fails to

identify any specific statement to which he objects.

       Moreover, appellant fails to show that he was entitled to the limiting

instruction. As the extent of his involvement in the conspiracy was one of the

factual issues the jury had to decide, such a limiting instruction would have

usurped the jury’s fact-finding function.    Cf. Richardson v. Suzuki Motor Co.   ,

                                            -8-
868 F.2d 1226, 1241 (Fed. Cir. 1989) (vacating award of damages where court’s

instruction concerning damages usurped jury’s role).


       5. Admission of Guilty Pleas

       At trial, coconspirators Jairo Salazar and Nelson Pedraza testified, and the

government introduced the written guilty plea of Nelson Pedraza. Appellant

argues that his counsel should have objected to the introduction of this evidence

or sought a limiting instruction that the guilty pleas were not to be considered as

substantive evidence against him.

       We previously held that failure to give such a limiting instruction did not

constitute plain error sufficient to justify reversal of the conviction of appellant’s

co-defendant Enrique Pedraza.       See Pedraza , 27 F.3d at 1525-26. Failure to

request such an instruction presumably also involves insufficient prejudice to

satisfy the second element of the    Strickland test. See, e.g. , United States v.

Blanco-Rodriguez , No. 98-2116, 1999 WL 100905, at **5 n.6 (10th Cir. Mar. 1,

1999) (unpublished disposition);     cf. United States v. Simmonds , 111 F.3d 737,

746 (10th Cir. 1997). Although our prior determination concerning plain error

involved only co-defendant Enrique Pedraza, we concluded that the lack of

a limiting instruction “did not have a substantial influence on the outcome of the

trial.” See Pedraza , 27 F.3d at 1526 (quotation omitted). For similar reasons,

appellant has failed to establish a reasonable probability that the result would

                                           -9-
have been different for him had the limiting instruction been given in this case.

We therefore reject his claim.


      6. Admission of Exhibit No. 174

      Appellant contends that his counsel provided ineffective assistance by

failing to object to the admission of a letter from Agent Stokes to Seek’s

probation officer, detailing Seek’s assistance in prior cases resulting in the

seizure of cash and cocaine. Appellant does not claim that the letter implicated

him in any way, only that it had no probative value and served to bolster Seek’s

credibility and to introduce evidence of other crimes not relevant to this

proceeding. Appellant fails to show that the outcome would have been any

different had his attorney objected to admission of the letter.


      7. Telephone log

      After the case was submitted, the jury requested permission to take all the

exhibits back into the jury room. Appellant was not present when the district

court ruled on this request. One of the exhibits was a telephone log that

erroneously attributed a telephone call dated April 3, 1990 to Seek and appellant.

The conversation was actually between Seek and Henry Pedraza. This error was

significant, because appellant’s theory of the case depended on a factual finding

that he had no involvement in the conspiracy after February 1990.


                                         -10-
      Appellant argues that had his attorney insisted on his presence at the

hearing, he would have noticed the error and brought it to her attention. He

claims that the parties discussed the jury’s request with counsel, and agreed that

all exhibits could go to the jury. He fails to show that he would have had an

opportunity to discover and bring the error to the court’s attention before the

exhibits were presented to the jury, even if he had been present in the courtroom.

      Appellant also claims that his attorney failed to discover the error due to

inadequate trial preparation. Even if failure to discover the error constituted

ineffective performance, it is unlikely that it prejudiced appellant under all the

facts and circumstances of this case. First, the jury had the tape and could hear

whose voice actually was on the tape. Second, the jury was presented with

ample evidence showing that the conversation did not involve appellant. On

cross-examination, for example, Seek was asked whether he had spoken to

appellant after February 6, 1990. He stated that he never spoke to him after that

date. See R. Vol. XIX at 1970. Seek stated that from the time appellant was

arrested in February 1990 until the date of trial, he never heard from appellant

at all. See id. at 1971.

      Moreover, the government made no argument at closing that appellant took

any actions in furtherance of the conspiracy after February 1990. Rather, it

argued that Peter Irelan and Nelson Pedraza      replaced appellant in the conspiracy


                                          -11-
after appellant’s arrest.   See id. Vol. XXII at 2351. Under these circumstances,

and given the ample evidence of appellant’s guilt, there is not a reasonable

probability that the outcome would have been different had appellant’s counsel

noticed the mistake in the phone logs.

       The judgment of the United States District Court for the District of

New Mexico is AFFIRMED.



                                                     Entered for the Court



                                                     Bobby R. Baldock
                                                     Circuit Judge




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