UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 98-4162

WILTON FELIPE BELTRE,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, District Judge.
(CR-96-197-F)

Argued: March 5, 1999

Decided: August 23, 1999

Before WIDENER and NIEMEYER, Circuit Judges, and
BROADWATER, United States District Judge for the Northern
District of West Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: William Webb Plyler, MCMILLAN, SMITH &
PLYLER, Raleigh, North Carolina, for Appellant. Christine Witcover
Dean, Assistant United States Attorney, Raleigh, North Carolina, for
Appellee. ON BRIEF: Janice McKenzie Cole, United States Attor-
ney, Anne M. Hayes, Assistant United States Attorney, Raleigh,
North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Wilton Felipe Beltre appeals his jury convictions of conspiracy to
possess with intent to distribute and distribution of crack cocaine in
violation of 21 U.S.C. § 846 (1994). The district court sentenced
Beltre to imprisonment for 324 months. On appeal, Beltre raises three
issues. First, he claims the district court abused its discretion in deny-
ing his motion in limine and allowing a witness to testify to the con-
tent of data stored in a data memory calculator. Second, he asserts the
district court abused its discretion in prohibiting his attorney from
questioning a witness on cross-examination concerning an exculpa-
tory portion of a statement not covered during direct examination.
Beltre's final claim is that the penalty distinctions between powder
and crack cocaine in the United States Sentencing Guidelines violate
his rights under the Equal Protection Clause of the Constitution. Find-
ing no error, we affirm the judgments of conviction and his sentence.

I.

At Beltre's trial, the Government presented evidence that he sold
drugs in New York. Terrence Cooke, Okino Ramsey, Clinton Brin-
son, Lisa Arrington, and Jermaine Morris, all drug dealers operating
in North Carolina, testified that they purchased crack cocaine from
Beltre. Cooke and Ramsey also testified that Levy Stephen mailed
packages from New York containing cocaine which Stephen pur-
chased from Beltre.

Cooke and Ramsey were arrested by Postal Inspector Gerald
Cucurullo when a package of cocaine, previously intercepted by
postal authorities, was delivered to them. At the time of their arrest,
Inspector Cucurullo seized a Radio Shack data memory calculator
from Ramsey. They subsequently gave Inspector Cucurullo Beltre's
name and his pager number.

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At the time of his arrest, Beltre was in possession of two pagers,
one of which had pager number (917) 243-1311. This was the number
that Cooke and Ramsey previously gave to Inspector Cucurullo. As
well, business cards reflecting Beltre's name and this pager number
were recovered from the car Beltre was driving at the time of arrest.

After Ramsey began to cooperate with law enforcement, his attor-
ney gave Inspector Cucurullo information on how to access a coded
area in the data memory calculator. This coded area also contained
Beltre's pager number. At trial, Inspector Cucurullo testified that he
had previously accessed Beltre's first name and pager number from
the calculator. While he initially was unable to retrieve the number
using the sequence given, he stated that he eventually accessed
Beltre's name and number by altering the sequence. Ramsey also tes-
tified that he had forgotten the sequence necessary to access the coded
information.

Beltre filed a motion in limine to exclude Inspector Cucurullo's
testimony concerning the previously accessed information from Ram-
sey's data memory calculator. At the time of the trial, the data mem-
ory calculator was in operating condition. There was no evidence that
it malfunctioned. There was no indication that the evidence was lost
through any bad faith on the part of the Government. The district
court denied this motion.

Beltre claims on appeal that the data memory calculator is the func-
tional equivalent of a computer. He maintains that the calculator's
output readable by sight in the display window is the only original as
contemplated by Fed. R. Evid. 1001(3) and 1002. Therefore, he
argues this is the best evidence of the information sought to be intro-
duced.

In denying the motion in limine, the district court focused on the
fact that the Inspector's oral testimony of what he observed from the
display window of the calculator was being offered to prove only that
the Inspector observed the existence of Beltre's name and pager num-
ber possessed by someone else in the drug conspiracy. The district
court ruled its use was not for any other purpose, such as the truth of
whether the number in fact belonged to Beltre. The Government con-
tends that the original is for all intents and purposes "lost" as contem-

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plated by Fed. R. Evid. 1004(1) and that the district court did not
abuse its discretion in allowing the testimony.

The purpose of the best evidence rule is to prevent inaccuracy or
fraud. See United States v. Ross, 33 F.3d 1507, 1513 (11th Cir. 1994)
(holding that transcripts of audiotapes destroyed by Spanish National
Police in ordinary course of business were admissible); United States
v. Dudley, 941 F.2d 260, 264 (4th Cir. 1991) (allowing admission of
business records summary of federal reserve bank concerning cur-
rency source as "best evidence" of destroyed records). Therefore, sec-
ondary evidence, where reliable, is admissible when the primary
evidence is unavailable. Id. Here, there was no evidence or argument
raised either at trial or on appeal that Inspector Cucurullo's testimony
as to what he saw on the calculator's display window was inaccurate
or untrustworthy. We also note that Beltre had ample opportunity to
attack the credibility of Cucurullo's testimony or the reliability of the
calculator before the jury. Accordingly, we decline to hold that the
district court's admission of the evidence was an abuse of discretion.
See United States v. Gravely, 840 F.2d 1156, 1162 (4th Cir. 1988).

II.

Beltre's second issue on appeal concerns the district court's exclu-
sion from evidence of an exculpatory statement made by Beltre fol-
lowing his arrest. Levy Stephen was an alleged co-conspirator of
Beltre who pled guilty to the conspiracy charge. Cooke and Ramsey
testified that Stephen purchased crack cocaine from Beltre in New
York and mailed it to Cooke and Ramsey. Stephen did not testify.

On direct examination, Inspector Cucurullo testified about a state-
ment Beltre made to him on the day of his arrest in New York. Spe-
cifically, he said that he showed Beltre a photograph of Stephen and
that Beltre indicated he had seen Stephen a long time ago. When
Inspector Cucurullo asked Beltre how he knew Stephen, Beltre's
response was that Stephen had "purchased something from him in the
past." On cross-examination, Beltre's attorney tried to question
Inspector Cucurullo about a subsequent portion of Beltre's statement.
Beltre had said "no" when the Inspector asked if Stephen had pur-
chased drugs from him. However, the Government objected before

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Inspector Cucurullo answered. The district court sustained the objec-
tion.

Beltre now challenges the district court's refusal to allow his attor-
ney to question Inspector Cucurullo about the exculpatory part of the
statement. Beltre claims that the district court abused its discretion in
not permitting his attorney to elicit from Inspector Cucurullo Beltre's
complete statement. He claims that, under the Fed. R. Evid. 106 fair-
ness standard, the exculpatory portion of a defendant's statement
should be admitted where it is relevant to an issue in the case and nec-
essary to clarify or explain the portion received into evidence.

In United States v. Wenzel, 311 F.2d 164 (4th Cir. 1962), we held
that ordinarily a defendant's entire statement should be admitted
under the rule of completeness:

          When a confession is admissible, the whole of what the
          accused said upon the subject at the time of making the con-
          fession is admissible and should be taken together; and if the
          prosecution fails to prove the whole statement, the accused
          is entitled to put in evidence all that was said to and by him
          at the time which bears upon the subject of the controversy
          including any exculpatory or self-serving declarations con-
          nected therewith.

Id. at 168 (citations omitted). However, we note that Beltre's state-
ment was not introduced into evidence in written or recorded form.
While Inspector Cucurullo prepared a written report of the interview,
it was not verbatim, and Beltre did not sign the report. Therefore, we
question whether the rule of completeness even applies to this case.
See United States v. Wilkerson, 84 F.3d 692, 696 (4th Cir. 1996)
(holding that the rule of completeness "applies only to writings or
recorded statements, not to conversations"); see also Fed. R. Evid.
106, advisory committee notes. Furthermore, even if the rule were to
apply, we would conclude as a matter of law that the district court's
exclusion of the portion of Beltre's statement did not rise to the level
of an abuse of discretion. See United States v. Hassan El, 5 F.3d 726,
731 (4th Cir. 1993) (setting forth standard). This is based upon the
ample evidence of Beltre's drug dealing introduced at trial, including

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Cooke and Ramsey's testimony that Stephen in fact purchased the
crack cocaine from Beltre.

We find that the evidentiary rules which properly govern the
admissibility of Beltre's exculpatory statement are contained within
the hearsay rule and the exceptions to that rule. See Fed. R. Evid. 801,
802, 803, and 804. Hearsay is defined as "a statement, other than one
made by the declarant while testifying at the trial or hearing, offered
in evidence to prove the truth of the matter asserted." Fed. R. Evid.
801(c). Admissions by a party-opponent are not considered hearsay
and can be admitted against that party. Fed. R. Evid. 801(d)(2).
Therefore, during direct examination, the Government properly intro-
duced the inculpatory statement made by Beltre that he sold some-
thing to Stephen. There is no exception provided in the rules for a
self-serving, exculpatory statement made by a party, which is sought
for admission by that same party. See Fed. R. Evid. 803, 804;
Wilkerson, 84 F.3d at 696. Accordingly, because the exculpatory
statement at issue here was pure hearsay and no exception enumerated
in the rules permits its introduction, we find that the district court did
not abuse its discretion in prohibiting its admission.

III.

We find Beltre's last claim, that the penalty distinctions between
powder and crack cocaine are violative of the Equal Protection
Clause, likewise to be without merit. This Court has considered this
claim many times before, and we decline Beltre's invitation to revisit
our prior decisions holding that the disparity in sentencing between
cocaine base and powder cocaine offenses is constitutionally permis-
sible. See United States v. Fisher, 58 F.3d 96, 99-100 (4th Cir. 1995).

IV.

Finding no error in any of the claims on appeal, Beltre's conviction
is

AFFIRMED.

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