                      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   distribute.     Over   Defendant's    objection,     the

arresting officer, Joe Arabit, testified about statements Gonzalez

made   after    his   arrest.   Gonzalez     had   moved   to   suppress   the

1
   District Judge of the Southern District of Texas, sitting by
designation.
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."          United States v. Capote-Capote,

946 F.2d 1100, 1102 (5th Cir. 1991), cert. denied, 60 U.S.L.W. 3798

(1992).

     Applying this deferential standard, we find no error in the

district 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    the   arrest,   Arabit   first    learned   from   a   confidential

informant that Gonzalez was a trafficker in cocaine and heroin.

Working undercover on July 3, Arabit received 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.            His

                                      2
decision was based on the information that Gonzalez was going to

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

          It would have been 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 would 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.   Capote-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.


                                   3
      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 favor 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.               See 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

the 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's

                                          4
statements were tainted "fruit" of an illegality.               Cf. 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    and   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 the Defendant and other[s] what was going on and then

get a warrant."

      Despite repeated limiting 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.3

2
     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 instructed
specifically regarding "testimony by the case agent that he had
received information that Mr. Gonzalez trafficked in heroin." The
charged continued,
     That evidence was admitted for the limited purpose of
     showing the 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 fact, 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
        The statements here are not hearsay, because they were not

used to prove the truth of the matter asserted, that is, that

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

context makes clear that the testimony was elicited to establish

the reason 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."          United 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 known to the defendant to
            be a government agent. . . .



that the jury considered this testimony for an improper purpose.
Moreover, "the mental processes of 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
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 several 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 constitutes 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 disclosure of his

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

                                 7
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   Gonzalez's

statements as follows:

              . . . GONZALEZ stated that his source of supply for
              heroin was . . . LOZANO. . . .     GONZALEZ stated
              that he picked LOZANO up at the Greyhound bus
              station on Thursday afternoon, and that LOZANO
              advised GONZALEZ that LOZANO had approximately 8 to
              8 and one-half ounces of pure Mexican black tar
              heroin for sale. GONZALEZ also stated that LOZANO
              showed GONZALEZ the heroin and GONZALEZ told LOZANO
              not to bring the heroin into the residence---to
              store it outside.

This disclosure did provide 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.'" United

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 prejudice 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.         See 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 duties


                                      8
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 warrantless arrest; the motion to

suppress   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 demonstrated no prejudicial error in the discovery

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

respects

     AFFIRMED.




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