Not for Publication in West's Federal Reporter

United States Court of Appeals For the First Circuit

No. 21-1338

UNITED STATES,

Appellee,

v.

OSCAR LUIS MENDOZA-FLORES, a/k/a Luiggi,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Pedro A. Delgado-Hernández, U.S. District Judge]

Before

Barron, Chief Judge, Lynch and Howard, Circuit Judges

H. Manuel Hernández for appellant. Thomas F. Klumper, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, were on brief, for appellee.

October 6, 2023 BARRON, Chief Judge. This appeal concerns Fifth and

Sixth Amendment challenges that Oscar L. Mendoza-Flores brings to

his convictions on federal gun and drug charges. We affirm.

I.

Mendoza-Flores was indicted along with thirty-two others

in the District of Puerto Rico in 2015. The six-count indictment

charged him with conspiracy to possess with intent to distribute

heroin, crack cocaine, cocaine, marijuana, Oxycodone, and

Alprazolam within 1,000 feet of certain public housing projects

and other areas, in violation of

(a)(1), 846, 860

(Count One); four counts of possession with intent to distribute

a controlled substance: heroin (Count Two), crack cocaine (Count

Three), cocaine (Count Four), and marijuana (Count Five); and

possession of firearms in furtherance of a drug-trafficking crime

(Count Six).

Mendoza-Flores was tried along with one codefendant in

2019. Fourteen government witnesses, including eleven law

enforcement members and two cooperating witnesses, testified at

the weeks-long trial. The jury returned guilty verdicts on all

the counts except for Count Three. Mendoza-Flores was sentenced

to 344 months and fourteen days of imprisonment for his convictions

on those five counts. He now appeals based on asserted trial

errors.

- 2 - II.

The first set of Mendoza-Flores's challenges concerns

the District Court's rulings on a recorded jailhouse phone call

between one of the government's cooperating witnesses, Edgardo

Ramos-Meléndez (nicknamed "Galdito"), and the cooperating

witness's mother. Mendoza-Flores claims that the District Court

violated his right to a fair trial and to present a complete

defense under the Due Process Clause of the Fifth Amendment to the

U.S. Constitution and to confront witnesses against him under the

Sixth Amendment to the U.S. Constitution. See U.S. Const. amends.

V, VI.

Mendoza-Flores contends that is so because he claims the

District Court prevented him from using the mother's statements

during the call about the witness's untruthfulness to cross-

examine -- and thus to impeach -- the witness. He further contends

that the District Court violated those same rights by preventing

him from introducing those statements by the mother into evidence

to impeach the witness.

In pressing this set of challenges, Mendoza-Flores

points out that the following exchange occurred at the very start

of the call:

UNIDENTIFIED FEMALE SPEAKER: Galdito, why are you lying?

GALDY: What's that?

- 3 - FEMALE SPEAKER: Why are you lying?

GALDY: Lying? What are you talking about?

FEMALE SPEAKER: You are lying, because you said your father hit me with a gun in the head one time, and you know you[r] father never touched me; you said he hit you too, but that never happened. These things never happened, not in our entire lives. You know very well that your father never laid a hand on me, let alone any of you; I never allowed him to assault anyone, and you know that.

Mendoza-Flores then contends that the mother's

statements from this exchange about the witness "lying" -- which

he claims that he was barred from both using on cross-examination

and admitting into evidence -- would have permitted him to show

the witness's willingness to lie. He explains that the statements

would have permitted him to do so because the witness testified

days after the phone call that the witness had decided to become

an informant for law enforcement to put an end to the abuse to

which he claimed the witness's father had subjected him and his

mother.

But there is no indication in the record that Mendoza-

Flores's trial counsel undertook or wanted to undertake any cross-

examination about the phone call. The record does show that the

counsel for Mendoza-Flores's codefendant cross-examined the

witness about certain statements in the phone call and about the

witness's motive for testifying. The record also does show that

the counsel for Mendoza-Flores's codefendant objected to certain

- 4 - limits imposed by the District Court. Indeed, after the government

objected and the District Court found that a predicate for

additional questions had not even been established, the counsel

for Mendoza-Flores's codefendant objected to that restriction.

However, the record shows that Mendoza-Flores's trial counsel

never joined, or sought to join, any of these objections by his

codefendant or sought to cross-examine the witness about the phone

call at all. Indeed, it was only after the counsel for the

codefendant finished the cross-examination of Ramos-Meléndez and

stated that she had no further questions that Mendoza-Flores's

trial counsel finally spoke, at which point his counsel merely

said, "No questions, Your Honor."

As to Mendoza-Flores's claim concerning the admission of

the phone call into evidence, the record shows that Mendoza-Flores

did not seek at any point to submit the statements by the mother

into evidence despite having submitted other evidence into the

record when given the opportunity to do so. Thus, we must reject

this set of challenges on the ground that Mendoza-Flores waived

them below. See Cruzado v. Puerto Rico,

(1st

Cir. 1954) ("There is no doubt that the right of confrontation may

be waived."); United States v. Pridgen,

, 91 n.2 (1st

Cir. 2008) ("[The defendant] failed to raise his constitutional

argument during trial and [thus] could be held to have lost this

claim."); United States v. Hansen,

(1st Cir. 2006)

- 5 - (finding a challenge to the omission of a jury instruction waived

when, at trial, counsel stated "I am content" after trial court

instructed the jury); United States v. Padilla-Galarza,

, 82 n.8 (1st Cir. 2021) ("[A] codefendant's objection, without

more, does not preserve any other defendant's claim of error.").

Mendoza-Flores fares no better with his second set of

challenges, which concerns the District Court's alleged limitation

of his cross-examination of the same cooperating witness about

prior sworn statements that the witness had made about a murder in

which the witness had participated. Here, again, Mendoza-Flores

appears to root this set of challenges in his Due Process right to

present a complete defense and his Sixth Amendment right to

confront witnesses against him.

As Mendoza-Flores puts it, the District Court improperly

"concluded that the cross-examination on possible prior

perjury . . . was 'collateral' and made clear that defense

counsel's cross-examination was being curtailed." As a result,

according to Mendoza-Flores, he was not "allowed to fully and

fairly confront the government's star witness with possible prior

instances of perjury and believed he could not explore this line

of impeachment any further."

But the record shows that -- during the cross-

examination of the witness -- Mendoza-Flores's counsel informed

the District Court that he had a "final question," that the

- 6 - District Court permitted the counsel to ask that question (despite

determining that this question was "collateral"), and that the

counsel asked it ("[Y]ou stated that you had shot just one time,

correct?") and also additional questions beyond that "final

question." Mendoza-Flores does suggest that his trial counsel was

barred from asking other questions despite what the record shows.

But there is no record support for that contention, and in any

event, Mendoza-Flores fails to identify what those other questions

would have been. Thus, we must reject this set of challenges on

the straightforward ground that its factual premise -- that

Mendoza-Flores was barred from asking questions he sought to ask

-- is entirely lacking in record support.1

III.

The judgment of the District Court is affirmed.

1Insofar as Mendoza-Flores may be raising a separate, non- constitutional claim that the District Court nevertheless abused its discretion, he has not developed that argument. See United States v. Zannino,

(1st Cir. 1990). Moreover, because of our determinations that Mendoza-Flores's challenges fail either on waiver grounds or due to a lack of record support, we must also reject his claim of cumulative error, as he has failed to show that there was any error at all. See United States v. Stokes,

(1st Cir. 2016) ("While trial errors which in isolation appear harmless may have a cumulative effect so prejudicial as to require reversal, the operation of that principle depends on the existence of two or more errors.").

- 7 -