1 District Judge of the Southern District of Texas, sitting by

designation. UNITED STATES COURT OF APPEALS

for the Fifth Circuit

_____________________________________

No. 91-5573

_____________________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ROBERTO GONZALEZ,

Defendant-Appellant.

______________________________________________________

Appeal from the United States District Court

for the Western District of Texas

______________________________________________________ (July 26, 1992)

Before HIGGINBOTHAM and DUHÉ, Circuit Judges, and HARMON,

District Judge. 1

PER CURIAM:

Defendant-Appellant Roberto Gonzalez appeals his conviction

for possession of heroin with intent to distribute, asserting error

in the denial of his motion to suppress his statements to officers,

the admission of hearsay statements of confidential informants, and

the admission of Defendant's statements without prior discovery of

their substance. Finding no error in any of the rulings, we

affirm.

I. The Motion to Suppress

Gonzalez was arrested in his home for possession of heroin

with intent to distribut e. Over Defendant's objection, the

arresting officer, Joe Arabit, testified about statements Gonzalez

made after his arrest. Gonzalez had moved to suppress the2

statements he gave Arabit because they were made pursuant to a

warrantless arrest inside the Gonzalez residence. Finding the

initial warrantless arrest justified by exigent circumstances, the

district court denied the motion to suppress. We affirm.

"When reviewing a trial court's ruling on a motion to

suppress, we accept the court's factual findings unless clearly

erroneous or influenced by an incorrect view of the law, and view

the evidence in a light most favorable to the prevailing party. We

review questions of law de novo ." U nited States v. Capote-Capote

,

946 F.2d 1100, 1102 (5th Cir. 1991), cert. denied

, 60 U.S.L.W. 3798

(1992).

Applying this deferent ial standard, we find no error in the

distri ct court's factual finding of exigent circumstances. The

circumstances elucidated by Arabit's testimony, viewed favorably to

the prosecution, were as follows. On June 30, 1990, a few days

before th e arrest, Arabit first learned from a confidential

informant that Gonzalez was a trafficker in cocaine and heroin.

Working undercover on July 3, Arabit re ceived information that

Gonzalez sold multi-ounce quantities of heroin from his home. The

day before the arrest, on July 5, two informants told Arabit that

they had recently seen heroin at the Gonzalez residence.

Finally, on July 6, the morning of the arrest, shortly before

11 o'clock, Arabit received information from one of his informants

that he saw heroin again in the Gonzalez home, and that it would be

moved within the hour. Officers entered the house at 11:45 a.m.

Gonzalez was arrested and read his rights at that time. Although

Arabit had intended to get a warrant before going to the house, he

decided not to get a warrant until after he secured the house. His3

decision was based on the information that Gonzalez was going to

move the heroin within the hour. Further, Arabit testified,

It would have be en very difficult to set up

any type of surveillance on this street

without having been detected. And the only

reason that we would have set up surveillance

prior to this would be to be able to get a

warrant and enter the house with a warrant.

Surveillance would have been detected, the

heroin would have either been destroyed or moved. At least that's my feeling.

And if we would have not set up

surveillance and had gotten a warrant anyways,

the heroin wo uld have probably been gone by

the time we got there.

Reasonable fear of the destruction or removal of evidence is

an exigent circumstance that may justify a warrantless entry into

a private home. C apote-Capote

, 946 F.2d at 1103; United States v.

Webster

, 750 F.2d 307, 326 (5th Cir. 1984), cert. denied

, 471 U.S.

1106 (1985); United States v. Thompson , 700 F.2d 944, 946-47 (5th

Cir. 1983). The Government has shown the officer's reasonable

belief that the drugs would be removed within the hour and that, if

he set up surveillance, the drugs would be destroyed. Given these

facts, the district court's finding of exigent circumstances is not

clearly erroneous.

Defendant makes much of the fact that Arabit did not proceed

directly to Gonzalez's house upon receiving his latest information

from the informant. Some forty-five to fifty minutes elapsed

between the last tip and the entry into the Gonzalez residence.

According to Gonzalez, Arabit's failure to immediately assemble his

team and head to the Gonzalez home is inconsistent with the claim

of exigency, because it indicates that Arabit was in no great hurry

to search the house.4

Arabit spent those minutes computer-checking Gonzalez's

address and criminal history, driving by the house a few times, and

assembling seven to ten officers. Only then did Arabit proceed to

Gonzalez's house. He testified that he had heard of obtaining a

warrant by giving an affidavit over the telephone, but had never

done it before; he supposes that in that time frame he could have

obtained a search warrant. In fact it took Arabit an hour and a

half to obtain the warrant.

Arabit took three to four minutes to check on Gonzalez on the

computer and another twenty minutes to drive to the house. He took

some time to assemble a team of officers, which he wanted for

security purposes. The court may have concluded that the officer's

use of these forty -five minutes was not unreasonable or

inconsistent with the claim of exigency. "In any event, the

reasonableness of a search under exigent circumstances is not

foreclosed by the failure to obtain a warrant at the earliest

practicable moment." United States v. Gardner , 553 F.2d 946, 948

(5th Cir. 1977), cert. denied

, 434 U.S. 1011 (1978). Viewing these

facts with reasonable inferences in fav or of the Government, we

find no error in the court's conclusion that the warrantless entry

was justified by exigent circumstances. Affirming the finding of

exigent circumstances, we necessarily hold that the entry was legal

and a warrant was not required. S ee Capote-Capote

, 946 F.2d at

1102 (recognizing that although we begin with the principle that a

warrantless entry into a home is presumptively unreasonable under

t he Fourth Amendment, an exception to the warrant requirement is

the presence of exigent circumstances). Finding no Fourth

Amendment violation, we need not inquire whether Gonzalez's2 The jury was contemporaneously charged that the testimony was

"not offered for the truth of the matters but merely to explain the

circumstances of the entry of the officer into the building."

Again before the deliberations, the jury was ins tructed

specifically regarding "testimony by the case agent that he had

received information that Mr. Gonzalez trafficked in heroin." The

charged continued,

That evidence was admitt ed for the limited purpose of

showing t he basis of the entry by police officers into

Mr. Gonzalez's home on July the 6th, 1990. It is not any

evidence that Mr. Gonzalez, in fa ct, trafficked in

heroin, and you may not consider it for any purpose other

than the limited purpose for which it was admitted.

3 During deliberations, the jury asked if they could "have

access to the testimony of Officer Arabit about the number of calls

he received indicating there was drug activity by Roberto

Gonzalez." The jury was properly instructed; we will not assume

5 statements were tainted "fruit" of an illegality. C f. New York v.

Harris

, 495 U.S. 14 (1990); Wong Sun v. United States

, 371 U.S. 471

(1963). The trial court correctly admitted the statements.

II. Hearsay Statements of Informants

Gonzalez moved to exclude Arabit's trial testimony about his

confidential informants' statements as hearsay. The court denied

the motion, holding that this evidence was introduced to show "not

the truth of the matter but why the officers acted as they did."

Arabit testified that he had been informed "on several

occasions" that "Gonzalez was trafficking in large quantities of

heroin an d cocaine." Arabit also testified that, based on

information that Gonzalez was going to move the heroin "real soon,"

he proceeded to "go in without a warrant, secure the people, and

explain to th e Defendant and other[s] what was going on and then

get a warrant."

Despite repeated limitin g instructions on the use of this

testimony, 2 Gonzalez argues, the jury relied on this highly

prejudicial hearsay to convict him, as shown by a jury note. 3that the jury considered this testimony for an improper purpose.

Moreover, "the mental processes o f the jury in its deliberations

are not subject to judicial scrutiny." United States v. Vincent

, 648 F.2d 1046, 1049 (5th Cir. Unit A June 1981).

6 The statements here are not hearsay, becau se they were not

u sed to prove the truth of the matter asserted, that is, that

Gonzalez was trafficking in drugs. S ee Fed. R. Evid. 801(c). The

context makes clear that the testimon y was elicited to establish

the reaso n for the warrantless entry into the Gonzalez residence

and the evidence was relevant for that purpose. Nothing more was

said about the informants until closing argument. Then the

prosecution properly limited its use of the disputed evidence to

the narrow purpose for which it was offered. This distinguishes

United States v. Hernandez

, 750 F.2d 1256 (5th Cir. 1985), cited by

Gonzalez, in which the prosecution used the statement in closing to

argue the truth of the matter asserted. Testimony not used to

establish the truth of the assertion "simply does not fall under

the proscriptions against the use of hearsay." U nited States v.

Vizcarra-Porras

, 889 F.2d 1435, 1439 (5th Cir. 1989), cert. denied

,

495 U.S. 940 (1990).

III. Discovery of Gonzalez's Statements to Officers

Gonzalez finally asserts that the prosecution violated Rule of

Criminal Procedure 16 by not revealing all Gonzalez's statements to

officers. The Rule provides:

Upon request of a defendant the government

shall permit the defendant to inspect and copy

or photograph:

. . . the substance of any

oral statement which the government intends to

offer in evidence at the trial made by the

defendant

. . . in response to interrogation

by any person then kn own to the defendant to

be a government agent. . . .7

Fed. R. Crim. P. 16(a)(1)(A) (eff. until Dec. 1, 1991). We review

alleged errors in the administration of discovery rules for abuse

of discretion and will not reverse on the basis of such errors

unless a defendant establishes prejudice to his substantial rights.

United States v. Ellender

, 947 F.2d 748, 756 (5th Cir. 1991). Such

errors that do not affect substantial rights must be disregarded.

United States v. Gordon

, 812 F.2d 965, 971 (5th Cir.), cert.

denied

, 482 U.S. 908 (1987), and cert. denied

, 483 U.S. 1009

(1987).

Gonzalez complains that the statements provided in response to

his discovery motion were largely exculpatory, but those revealed

at trial were incriminating; thus he was surprised and prejudiced

at trial. Gonzalez specifically objects to not having discovery

about testimony that he wavered, by first denying knowledge of any

heroin, then stating, "if there's heroin here, it's not in the

house."

At a detention hearing severa l months before trial, Arabit

testified,

At first he told me that there wasn't any

heroin in the house. And after we spoke with

him for a little while longer, he said he

wasn't sure that there was, whether there was

heroin or not, but that, if there was heroin,

that it was outside. That it was not inside

the house.

This constitu tes actual production of the statement, well in

advance of trial. Because the statement was known and available to

Defendant, he cannot show any prejudice which justifies reversal on

appeal.

Gonzalez also complains about lack of discl osure of his

statement to Arabit that Lozano had been working on a jeep in the8

yard and that Lozano "had the hood up so maybe there [was] heroin

in there." (The officers found heroin in the jeep bed.) The DEA

form that Gonzalez received before trial revealed Gon zalez's

statements as follows:

. . . GONZALEZ stated that his source of supply for

heroin was

. . . LOZ ANO. . . . GONZALEZ stated

that he picked LOZANO up at the Greyho und bus

station on Thursday afternoon, and that LOZANO

advised GONZALEZ that LOZANO had approximately 8 to

8 and one-half ounces of pure Me xican black tar

heroin for sale. GONZALEZ also stated that LOZANO

showed GONZALEZ the heroin and GONZALEZ told LOZANO

n ot to bring the heroin into the residenc e---to

store it outside.

This disclosure did pro vide the substance of Gonzalez's oral

statement. "'The right to discovery of statements is not a

guarantee that the statement is complete in all respects.'" U nited

States v. Arcentales

, 532 F.2d 1046, 1050 (5th Cir. 1976) (quoting

Castillo v. United States

, 409 F.2d 762, 765 (5th Cir. 1969)).

Rule 16 does not require that the prosecution disclose all the

minutiae of its evidence. United States v. Elam , 678 F.2d 1234,

1253 (5th Cir. 1982).

Moreover, Gonzalez has not suggested any preju dice by the

Government's alleged failure to disclose these statements. As in

the Arcentales case, in which this Court found no significant

prejudice, the particulars of the statements became known during

the government's case-in-chief, before Gonzales had to decide

whether or not to take the stand. S ee Arcentales

, 532 F.2d at 1050

(applying former Rule 16(a) as though it required the disclosure of

oral statements to officers now required under Rule 16(a)).

The disclosure provided by both the DEA form and the testimony

of Arabit at pre-trial hearings discharged the Government's duties9

under Rule 16. Given the lack of actual prejudice to Defendant,

the district court's decision to permit Arabit to testify about

Gonzalez's statements was well within its discretion.

CONCLUSION

Sufficient evidence supports the finding that exigent

circumstances justified the warrant l ess arrest; the motion to

s uppress Gonzalez's statements was properly denied. The

informants' statements were not hearsay, because they were admitted

to show the circumstances of the entry into the Gonzalez residence.

Gonzalez has demonstr ated no prejudicial error in the discovery

process. Accordingly, the judgment of the district court is in all

respects

AFFIRMED.