Appeal from the United States District Court for the District of Nevada. D.C. No. CR-91-00108-ECR. Edward C. Reed, Jr., District Judge, Presiding.
Before: Herbert Y. C. Choy, William C. Canby, Jr., and John T. Noonan, Jr., Circuit Judges. Opinion by Judge Canby.
AMENDED OPINION AND ORDER
Following a jury trial, Richard Carrillo and Ernest Benavidez were convicted of numerous charges relating to the possession and distribution of cocaine, including conspiracy with intent to distribute five or more kilograms of cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(A)(ii). Carrillo and Benavidez now appeal their convictions, alleging that the district court erred (1) by admitting into evidence a purported "profit statement" or "tally sheet" from various drug transactions, (2) by admitting into evidence a post-arrest statement made by Carrillo in response to an officer's question prior to a Miranda warning, and (3) by allowing the prosecutor to cross-examine Carrillo about confidential attorney-client communications. Finally, Carrillo and Benavidez allege that the prosecutor engaged in misconduct during closing argument. We affirm.
Evidence at trial indicated that a government informant met Richard Carrillo by chance in a bar in Corona, California, in March or April of 1991. After learning that Carrillo was involved in the cocaine business, the informant cultivated a relationship with Carrillo and proceeded with negotiations for the purchase of large quantities of cocaine. In July, the informant paid Carrillo $800 to obtain a one-ounce sample of cocaine. Because the informant was unhappy about the quality of the cocaine, Carrillo later provided free of charge a second sample of cocaine and negotiations continued.
During these negotiations, the informant convinced Carrillo to travel to Reno, Nevada, where the informant, Carrillo, and Benavidez met with Scott Jackson, a Nevada narcotics agent posing as a cocaine dealer. During this meeting both price and quantity were negotiated but not confirmed. Benavidez represented that his wholesale price for the cocaine was $15,000 to $16,000 per kilogram. Many of these negotiations were recorded on videotape or audiotape. Eventually, Carrillo and Benavidez agreed to sell 20 kilograms of cocaine to the government agents for $18,000 per kilogram.
On November 25, 1991, Carrillo agreed to complete the transaction the following day at the informant's apartment. The next day, Carrillo arrived with Benavidez at the apartment. However, the two men brought only a single kilogram of cocaine. When Agent Jackson inquired about the additional 19 kilograms, Benavidez responded that he could obtain only 14 more kilograms and he refused to complete the transaction unless Agent Jackson traveled to Benavidez's home that night. Instead of continuing the operation further, the police arrested Benavidez and Carrillo and several codefendants who assisted in the cocaine delivery.
After an eight-day jury trial, Carrillo and Benavidez were convicted of all charges. They were sentenced to 121 months of imprisonment for conspiracy with intent to distribute five or more kilograms of cocaine, and were given lesser sentences on each of the other counts, to run concurrently. They now appeal, urging various trial errors.
A. The Admissibility of the Purported Profit Statement
At the police station following the arrests, a police officer found a small folded white piece of paper in Benavidez's pocket. The slip of paper, labelled "Exhibit 66" at trial, contained three columns of numbers and letters. It was neither signed nor dated. Because the numbers were consistent with some of the prices and quantities of cocaine that Benavidez negotiated with Agent Jackson, the government argued that the paper was a "tally sheet" or profit statement of Benavidez's potential drug transactions. The district court admitted Exhibit 66 into evidence at trial under the "adopted admission" exception to the hearsay rule.
Benavidez contends that the writing was hearsay, and that its admission accordingly violated Fed. R. Evid. 802. He points out that there was no evidence that the writing on the paper was his, nor was there any showing as to who was the author. But such an unauthenticated statement is not hearsay if the party against whom it is introduced has manifested an adoption of its contents or ...