United States v. Robert Steven Lujan, 936 F.2d 406 (9th Cir. 1991). · Go Syfert
United States v. Robert Steven Lujan, 936 F.2d 406 (9th Cir. 1991). Cases Citing This Book View Copy Cite
91 citation events (28 in the last 25 years) across 10 distinct courts.
Strongest positive: United States v. Lambus (nyed, 2016-12-22)
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discussed Cited as authority (verbatim quote) United States v. Lambus
E.D.N.Y · 2016 · quote attribution · 1 verbatim quote · confidence high
we are persuaded by those other circuits which have concluded that suppression was not required by the section 2518(l)(e) nondisclosure under similar findings of unintentional noncompliance.
discussed Cited as authority (verbatim quote) United States v. Garland Callum, United States of America v. Steven Ray Henderson, AKA Ray Detail Ray, United States of America v. Johnny Lee Barnes, AKA Darnell Ferguson, AKA J Fresh, United States of America v. Delvonne Maurice Jenkins (2×) also: Cited "see"
9th Cir. · 2005 · signal: cf. · quote attribution · 1 verbatim quote · confidence high
findings of fact concerning misleading statements and omissions ... are reviewed under the clearly erroneous standard.
discussed Cited as authority (verbatim quote) United States v. Callum (2×) also: Cited "see"
9th Cir. · 2005 · signal: cf. · quote attribution · 1 verbatim quote · confidence high
findings of fact concerning misleading statements and omissions ... are reviewed under the clearly erroneous standard.
discussed Cited as authority (verbatim quote) United States v. Callum (2×) also: Cited "see"
9th Cir. · 2005 · signal: cf. · quote attribution · 1 verbatim quote · confidence high
findings of fact concerning misleading statements and omissions . . . are reviewed under the clearly erroneous standard.
discussed Cited as authority (rule) United States v. Richard
9th Cir. · 2007 · confidence medium
While I agree that providing a limiting instruction might have been prudent, see United States v. Lujan, 936 F.2d 406, 411 (9th Cir. 1991), I cannot say on this record that the failure to do so warrants reversal of Richard’s conviction.
examined Cited as authority (rule) United States v. Richard (6×)
9th Cir. · 2007 · confidence medium
Id. at 411.
cited Cited as authority (rule) United States v. Trigueras
9th Cir. · 2003 · confidence medium
Nor do we find that United States v. Lujan, 936 F.2d 406, 411-12 (9th Cir.1991), compels a different result.
discussed Cited as authority (rule) United States v. Wilson, Ralph T.
D.C. Cir. · 1998 · confidence medium
United States v. Rodgers, 109 F.3d 1138, 1142 (6th Cir.1997) (citations omitted); see also United States v. Escotto, 121 F.3d 81, 84-85 (2d Cir.1997); United States v. Lujan, 936 F.2d 406, 411-12 (9th Cir.1991).
discussed Cited as authority (rule) UNITED STATES of America, Plaintiff-Appellee, v. Angela Dawn SHANNON, Defendant-Appellant
9th Cir. · 1998 · confidence medium
Rather the government offered the Eck letter to prove Shannon’s knowledge of the threat letter on the basis that she received a warning from Eck' Moreover, “[n]o Confrontation Clause issue is raised where the statements are not offered for the truth of the matter asserted.” United States v. Lujan, 936 F.2d 406, 410 (9th Cir.1991) (per curiam) (citation omitted).
discussed Cited as authority (rule) United States v. Santos Escotto
2d Cir. · 1997 · confidence medium
Though some courts have concluded that there is no material difference between sending the jury written transcripts of trial testimony and providing for in-court readbacks, e.g., United States v. Bertoli, 40 F.3d 1384, 1400 (3d Cir.1994); United States v. Zarintash, 736 F.2d 66, 70 (3d Cir.1984), others have noted that permitting the jury to have unsupervised access to written transcripts poses an enhanced danger that jurors may unduly emphasize discrete sections of the trial testimony, see, e.g., United States v. Hernandez, 27 F.3d 1403, 1408-09 (9th Cir.1994) (citing United States v. Lujan, …
cited Cited as authority (rule) UNITED STATES of America, Plaintiff-Appellee, v. Kent Borden ROGERS, Defendant-Appellant
9th Cir. · 1997 · confidence medium
United States v. Lujan, 936 F.2d 406, 412 (9th Cir.1991).
discussed Cited as authority (rule) United States v. Isodoro \Teddy\" Matranga
unknown court · 1997 · confidence medium
United States v. Lorenzo, 995 F.2d 1448, 1458 (9th Cir.1993) (every member of a conspiracy need not know every other member or be aware of all acts committed in connection with conspiracy); United States v. Lulan, 936 F.2d 406, 411 (9th Cir.1991) (a single conspiracy may involve several subagreements or subgroups of conspirators). 95 Hake argues that because Counts 46 and 47 must be reversed, his conspiracy conviction must be reversed as well.
discussed Cited as authority (rule) United States v. Jose Jesse Ramirez
9th Cir. · 1997 · confidence medium
See United States v. Hernandez, 27 F.3d 1403, 1408 (9th Cir.1994) (finding clear error where district court "failed to take sufficient precautions to avoid undue emphasis" of particular testimony), cert. denied, 115 S.Ct. 1147 (1995); United States v. Lujan, 936 F.2d 406, 411 (9th Cir.1991).
discussed Cited as authority (rule) United States v. Lawrence Rodgers (94-6322) Claude Jackson (95-5105) (2×)
6th Cir. · 1997 · confidence medium
United States v. Lujan, 936 F.2d 406, 411-12 (9th Cir.1991).
discussed Cited as authority (rule) 45 Fed. R. Evid. Serv. 449, 96 Cal. Daily Op. Serv. 6157, 96 Cal. Daily Op. Serv. 7730, 96 Daily Journal D.A.R. 10,106 United States of America v. Edward P. Collicott, Sr.
9th Cir. · 1996 · confidence medium
The Government's inability to satisfy the requirements of Rule 801(d)(1)(B), as set forth in the Rule and Tome, precludes it from relying on Rule 801(d)(1)(B) for admission of Zaidi's statements. 77 Nevertheless, we do recognize that under the "opened door" rationale, this Circuit has historically allowed a party to introduce prior statements because they were part of the same conversation or document from which impeaching inconsistent statements were drawn. 3 See United States v. Payne, 944 F.2d 1458, 1471 (9th Cir.1991) (admitted consistent statement from the same investigative reports from …
discussed Cited as authority (rule) United States v. Collicott
9th Cir. · 1996 · confidence medium
Nevertheless, we do recognize that under the “opened door” rationale, this Circuit has historically allowed a party to introduce prior statements because they were part of the same conversation or document from which impeaching inconsistent statements were drawn. 3 See United States v. Payne, 944 F.2d 1458, 1471 (9th Cir.1991) (admitted consistent statement from the same investigative reports from which the defendant drew the impeaching inconsistent statements because the consistent statements demonstrated that the inconsistencies were a minor part of an otherwise consistent account); Unit…
cited Cited as authority (rule) United States v. Keith Steven Young, United States of America v. Edelmiro Tamez, Jr.
9th Cir. · 1996 · confidence medium
United States v. Lujan, 936 F.2d 406, 412 (9th Cir.1991). 20 B.
cited Cited as authority (rule) Antonio G. Hernandez v. Samuel Lewis
9th Cir. · 1995 · confidence medium
United States v. Lujan, 936 F.2d 406, 410 (9th Cir.1991).
discussed Cited as authority (rule) United States v. Victor Nuno-Rosales, Indicted as Victor Rosales-Nuno
9th Cir. · 1995 · confidence medium
Although a "single conspiracy may involve several subagreements or subgroups of conspirators," United States v. Lujan, 936 F.2d 406, 411 (9th Cir.1991) (per curiam) (quotation omitted), and separate acts at separate times should not be confused with separate conspiracies, United States v. Smith, 790 F.2d 789, 795 (9th Cir.1986), there must be sufficient evidence that the defendants acted pursuant to one overall agreement.
cited Cited as authority (rule) United States v. Manuel Morga
9th Cir. · 1995 · confidence medium
United States v. Lujan, 936 F.2d 406, 410 (9th Cir.1991) (no Confrontation Clause violation if the statement is not hearsay).
discussed Cited as authority (rule) United States v. Maria Cecilia Barona, United States of America v. Janet Martinez, Aka: Luz Janet Martinez & Luz Janeth Martinez, United States of America v. Brian Bennett, United States of America v. Mario Ernesto Villabona-Alvarado, A/K/A Tico, United States of America v. Michael Dubarry McCarver A/K/A Mike Bald, United States of America v. Michael Harris, A/K/A Tall Make
9th Cir. · 1995 · confidence medium
"A single conspiracy may involve several sub-agreements or subgroups of conspirators." United States v. Lujan, 936 F.2d 406, 411 (9th Cir.1991), quoting Bibbero, 749 F.2d at 587 . 31 In this case, the jury could have found the existence of a single conspiracy.
cited Cited as authority (rule) United States v. William Edgar Crowder
9th Cir. · 1995 · confidence medium
United States v. Lujan, 936 F.2d 406, 412 (9th Cir. 1991).
discussed Cited as authority (rule) United States v. Richard O. Bertoli (2×)
3rd Cir. · 1994 · confidence medium
See, e.g., United States v. Edwards, 968 F.2d 1148, 1152 (11th Cir.1992) ("district court has broad discretion in determining whether to grant or deny a jury's request to read a portion of the trial transcript"), cert. denied, --- U.S. ----, 113 S.Ct. 1006 , 122 L.Ed.2d 155 (1993); United States v. Lujan, 936 F.2d 406, 411 (9th Cir.1991) (trial court's decision to provide trial transcript to jury reviewed for abuse of discretion); United States v. Betancourt, 838 F.2d 168, 175 (6th Cir.) ("the furnishing of transcripts to a jury is generally well within the district court's discretion"), cert.…
discussed Cited as authority (rule) United States v. Bertoli
3rd Cir. · 1994 · confidence medium
See, e.g., United States v. Edwards, 968 F.2d 1148, 1152 (11th Cir. 1992) ("district court has broad discretion in determining whether to grant or deny a jury's request to read a portion of the trial transcript"), cert. denied, ____ U.S. ____, 113 S.Ct. 1006 (1993); United States v. Lujan, 936 F.2d 406, 411 (9th Cir. 1991) (trial court's decision to provide trial transcript to jury reviewed for abuse of discretion); United States v. Betancourt, 838 F.2d 168, 175 (6th Cir.) ("the 9 .
cited Cited as authority (rule) United States v. Richard Frederick
9th Cir. · 1994 · confidence medium
"No Confrontation Clause issue is raised where the statements are not offered for the truth of the matter asserted." United States v. Lujan, 936 F.2d 406, 410 (9th Cir.1991) (per curiam).
discussed Cited as authority (rule) The People of the Territory of Guam v. Albert Blas Camacho
9th Cir. · 1994 · confidence medium
"No confrontation clause issue is raised where the statements are not offered for the truth of the matter asserted." United States v. Lujan, 936 F.2d 406, 410 (9th Cir.1991) (per curiam). 5 In any event, review of the entire record reveals that any error in the admission of the challenged testimony was harmless.
cited Cited as authority (rule) United States v. Genaro Brandell Patterson
9th Cir. · 1993 · confidence medium
See Federal Rule of Evidence 801(c); United States v. Lujan, 936 F.2d 406, 410 (9th Cir.1991); Giese, 597 F.2d at 1195.
discussed Cited as authority (rule) United States v. Santiago Teran, Eladio Soto Bouza, and Geronimo Teran
9th Cir. · 1993 · confidence medium
Although a "single conspiracy may involve several subagreements or subgroups of conspirators," United States v. Lujan, 936 F.2d 406, 411 (9th Cir.1991) (quotation omitted), and separate acts at separate times should not be confused with separate conspiracies, United States v. Smith, 790 F.2d 789, 795 (9th Cir.1986), there must be sufficient evidence that the defendants acted pursuant to one overall agreement.
discussed Cited as authority (rule) United States v. Raymond Lester Worthy
9th Cir. · 1993 · confidence medium
United States v. Lujan, 936 F.2d 406, 412 (9th Cir.1991) (per curiam). 4 * Acceptance of Responsibility 5 Worthy contends that the district court erred by denying a reduction for acceptance of responsibility because he admitted his criminal conduct and expressed remorse.
discussed Cited as authority (rule) United States v. Vernon A. Bunch
9th Cir. · 1993 · confidence medium
United States v. Belden, 957 F.2d 671, 674-75 (9th Cir.), cert. denied, 113 S.Ct. 234 (1992); United States v. Lujan, 936 F.2d 406, 412 (9th Cir.1991). 4 Here, Bunch made no objections to the contents of the presentence report or to his sentence.
cited Cited as authority (rule) United States v. Bernardo Jorge Herzer
9th Cir. · 1993 · confidence medium
United States v. Lujan, 936 F.2d 406, 412 (9th Cir.1991).
discussed Cited as authority (rule) United States v. Pedro Aragon, A/K/A Jose, A/K/A El Tigre, United States of America v. Robertulio Viana, A/K/A Robert Viana, A/K/A Carlos, A/K/A Jackal, United States of America v. Fernando Botero, United States of America v. Jesus Walter Jaramillo (2×)
4th Cir. · 1993 · confidence medium
United States v. Lujan, 936 F.2d 406, 411 (9th Cir.1991); United States v. Betancourt, 838 F.2d 168, 175 (6th Cir.), cert. denied, 486 U.S. 1013 , 108 S.Ct. 1748 , 100 L.Ed.2d 210 (1988); United States v. Hines, 696 F.2d 722, 733-34 (10th Cir.1983).
discussed Cited as authority (rule) United States v. Aragon (2×)
4th Cir. · 1993 · confidence medium
United States v. Lujan, 936 F.2d 406, 411 (9th Cir.1991); United States v. Betancourt, 838 F.2d 168, 175 (6th Cir.), cert. denied, 486 U.S. 1013 , 108 S.Ct. 1748 , 100 L.Ed.2d 210 (1988); United States v. Hines, 696 F.2d 722, 733-34 (10th Cir.1983).
cited Cited as authority (rule) United States v. Harris Blane Shimel
9th Cir. · 1993 · confidence medium
United States v. Lugan, 936 F.2d 406, 412 (9th Cir.1992). 20 AFFIRMED. * The panel unanimously found this case suitable for decision without oral argument.
discussed Cited as authority (rule) United States v. Alfred Ethridge
9th Cir. · 1992 · confidence medium
United States v. Lujan, 936 F.2d 406, 412 (9th Cir.1991); see also United States v. Belden, 957 F.2d 671, 674-75 (9th Cir.) (failure to make an argument in district court objecting to the number of marijuana plants either in objections to the Presentence Report or elsewhere precluded appellate review), cert. denied, 113 S.Ct. 234 (1992). 7 Although Ethridge did object to other factual assertions contained in the Presentence Report, he did not dispute the quantity of cocaine.
cited Cited as authority (rule) United States v. John Anthony Soto, United States of America v. Emanuel Garcia, Jr., United States of America v. Edward H. Subia
9th Cir. · 1992 · confidence medium
United States v. Lujan, 936 F.2d 406, 412 (9th Cir.1991).
cited Cited as authority (rule) United States v. Daniel Enyinnaya Ogidi
9th Cir. · 1992 · confidence medium
United States v. Lujan, 936 F.2d 406, 411 (9th Cir.1991). 8 To distinguish single from multiple conspiracies, this court applies a factors analysis.
cited Cited "see" United States v. Shawn Tyrone Percy
9th Cir. · 2001 · signal: see · confidence high
See United States v. Lujan, 936 F.2d 406, 411 (9th Cir.1991).
cited Cited "see" United States v. Montgomery
9th Cir. · 1998 · signal: see · confidence high
See id. at 411-12 .
cited Cited "see" United States v. Salvador Rubalcaba
9th Cir. · 1998 · signal: see · confidence high
See United States v. Lujan, 936 F.2d 406, 412 (9th Cir.1991)
cited Cited "see" United States v. William Lee Seaman
9th Cir. · 1994 · signal: see · confidence high
See United States v. Lujan, 936 F.2d 406 , 412 99th Cir.1991) (per curiam).
discussed Cited "see" United States v. James Robert Hernandez (2×)
9th Cir. · 1994 · signal: see · confidence high
See United States v. Lujan, 936 F.2d 406, 411 (9th Cir.1991).
discussed Cited "see" United States v. Bertoli (2×)
D.N.J. · 1994 · signal: see · confidence high
First, with regard to providing the jury with hard copies of Trial Transcripts, “the furnishing of transcripts to a jury is generally well within [a trial] court’s discretion.” United States v. Betancourt, 838 F.2d 168, 175 (6th Cir.), cert. denied sub nom., Cubillos v. United States, 486 U.S. 1013 , 108 S.Ct. 1748 , 100 L.Ed.2d 210 (1988); see United States v. Lujan, 936 F.2d 406, 411 (9th Cir.1991) (providing trial transcript to jury was not an abuse of discretion); accord United States v. Nolan, 700 F.2d 479, 486 (9th Cir.), cert. denied, 462 U.S. 1123 , 103 S.Ct. 3095 , 77 L.Ed.2d 13…
discussed Cited "see" United States v. Mildred Miller (2×)
9th Cir. · 1992 · signal: see · confidence high
See United States v. Lujan, 936 F.2d 406, 412 (9th Cir.) (per curiam), cert. denied, 112 S.Ct. 121 (1991); United States v. Houtchens, 926 F.2d 824, 828 (9th Cir.1991); United States v. Roberson, 917 F.2d 1158, 1158-59 (9th Cir.1990). 22 The district court, however, did not attach to the pre-sentence report forwarded to the Bureau of Prisons or the Parole Commission an indication that it did not rely on contested matters in imposing Miller's sentence.
discussed Cited "see, e.g." United States v. Anthony Chadwell
9th Cir. · 2015 · signal: compare · confidence medium
Compare id. at 1408-09 (holding that the district court abused its discretion in permitting the jury to take a transcript into the jury room during deliberations when the court knew the jury intended to focus its verdict on a specific portion of a transcript and did not instruct the jury not to emphasize that transcript or otherwise provide protective instructions), with United States v. Lujan, 936 F.2d 406, 411-12 (9th Cir.1991) (per curiam) (holding that the district court did not abuse its discretion by permitting the jury to take a copy of trial transcript into the jury room during deliber…
discussed Cited "see, e.g." United States v. Ceballos
7th Cir. · 2002 · signal: see also · confidence medium
See id.; see also United States v. Lujan, 936 F.2d 406, 409 (9th Cir.1991); United States v. Pinelli, 890 F.2d 1461, 1475 (10th Cir.1989). 10 In the present case, the Indiana and Texas applications failed to disclose that Miguel and Deneise Quintanilla had been the targets of previous wiretap applications in Texas.
cited Cited "see, e.g." United States v. Quintanilla, Miguel
7th Cir. · 2002 · signal: see also · confidence medium
See id.; see also United States v. Lujan, 936 F.2d 406, 409 (9th Cir.1991); United States v. Pinelli, 890 F.2d 1461, 1475 (10th Cir.1989).
discussed Cited "see, e.g." United States v. Eric Germaine Turner
9th Cir. · 1995 · signal: see also · confidence medium
See Smith, 905 F.2d at 1302 (defendant waived the issue of a downward adjustment for minor participation on appeal because he failed to raise it in the district court); see also United States v. Lujan, 936 F.2d 406, 412 (9th Cir.1991) (defendant waived sentencing issues on appeal where he failed to raise factual disputes in district court). 11 AFFIRMED. * The panel unanimously finds this case suitable for decision without oral argument.
discussed Cited "see, e.g." United States v. Robert Ray Floyd
9th Cir. · 1994 · signal: see, e.g. · confidence medium
See, e.g., United States v. Lujan, 936 F.2d 406, 410 (9th Cir.1991); United States v. Houtchens, 926 F.2d 824, 828-29 (9th Cir.1991); United States v. Fernandez-Angulo, 897 F.2d 1514, 1517 (9th Cir.1990) (en banc).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Robert Steven LUJAN, Defendant-Appellant
89-30197.
Court of Appeals for the Ninth Circuit.
Jun 10, 1991.
936 F.2d 406
91 Cal. Daily Op. Serv. 4380
1991 U.S. App. LEXIS 11486
1991 WL 95703
Hap Wong, Portland, Or., for defendant-appellant., Frank Noonan and Leslie K. Baker, Asst. U.S. Attys., Portland, Or., for plaintiff-ap-pellee.
Hug, Nelson, Carroll.
Cited by 60 opinions  |  Published
PER CURIAM:

Robert Steven Lujan (Lujan) appeals his conviction on three drug trafficking counts, in violation of 21 U.S.C. §§ 841(a)(1), 846 (1988). We affirm.

I. Motion to Suppress Wiretap Evidence: Probable Cause

Lujan challenges the district court’s denial of the motions to suppress wiretap evidence, contending there was no probable cause to issue a wiretap extension order, as required under 18 U.S.C. §§ 2518(3)(a), (b), (d) & 2518(5).

Lujan argues that the affidavit for the first extension order of October 29, 1987 indicated the lack of probable cause because it noted that the Government learned on September 25, 1987 Valdez was no long[*409] er living at the targeted address. Because Valdez purportedly left Rose Arehart’s residence, Lujan argues there was no probable cause for the first extension order.

Under the totality of the circumstances, we find that there was sufficient probable cause for the first extension wiretap order. Lujan has cited no authority that the targeted individual must reside at the location of the targeted facility. The statute merely requires probable cause that the targeted facilities “are being used, or are about to be used” in connection with the offense. The affidavit noted that based on at least one intercepted call after the purported move-out date, Valdez continued to use the targeted number for his narcotics business. The application for the first extension was supported by a thirty-page affidavit by DEA Special Agent Patrick O’Connor, who had also submitted an affidavit for the original wiretap authorization. According to the affidavit for extension, during the first interception period, a substantial percentage of the telephone calls on the targeted facility involved conversations concerning criminal activity.

II. Noncompliance with Section 2518(l)(e) Disclosure Requirement

Lujan contends a separate wiretap application on September 11, 1987 before U.S. District Court Judge Redden, of the District of Oregon, on Rose Arehart’s telephone failed to mention a prior application listing Arehart and Steve Lujan as targets which had been submitted to U.S. District Court Judge Roger Strand, of the District of Arizona. The Government does not dispute that this omission violated the section 2518(l)(e) requirement for disclosure of all previous applications “involving any of the same persons ... specified in the application.”

Lujan argues that this nondisclosure requires suppression of the “unlawfully intercepted” communications under section 2518(10)(a)(i). Review is de novo on whether a full and complete disclosure, as required under the statute, has been satisfied. See, e.g., United States v. Brone, 792 F.2d 1504, 1506 (9th Cir.1986). Findings of fact concerning misleading statements and omissions under the statute are reviewed under the clearly erroneous standard. United States v. Carneiro, 861 F.2d 1171, 1176 (9th Cir.1988).

In United States v. Donovan, 429 U.S. 413, 433-34, 97 S.Ct. 658, 671, 50 L.Ed.2d 652 (1977), the Supreme Court held that suppression was not mandated by every noncompliance under the wiretap statute. Instead “suppression is required only for a ‘failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.’ ” Id. (quoting United States v. Giordano, 416 U.S. 505, 527, 94 S.Ct. 1820, 1832, 40 L.Ed.2d 341 (1974)).

Lujan relies on United States v. Bellosi, 501 F.2d 833, 841 (D.C.Cir.1974), which concluded that intentional noncompliance with section 2518(l)(e) required suppression. Id. at 835. We find Bellosi distinguishable. There, it was not disputed that the nondisclosure under section 2518(l)(e) was intentional. Here, the district court found the nondisclosure of the earlier application was inadvertent. This finding has not been shown to be clearly erroneous. We are persuaded by those other circuits which have concluded that suppression was not required by the section 2518(l)(e) nondisclosure under similar findings of unintentional noncompliance. See, e.g., United States v. Zannino, 895 F.2d 1, 9 (1st Cir.) (negligent but unintentional noncompliance does not warrant suppression), cer t. denied, — U.S. —, 110 S.Ct. 1814, 108 L.Ed.2d 944 (1990); United States v. Pinelli, 890 F.2d 1461, 1475 (10th Cir.1989) (unintentional noncompliance), cert. denied, — U.S. —, 110 S.Ct. 2568, 109 L.Ed.2d 750 (1990); United States v. Van Horn, 789 F.2d 1492, 1500 (11th Cir.) (inadvertent noncompliance), cert. denied, 479 U.S. 854, 107 S.Ct. 190, 93 L.Ed.2d 123 (1986).

[*410] III. Motion to Sever Conspiracy Count

Lujan argues the district court abused its discretion in denying his motion to sever count II for conspiracy from the substantive counts IX and X for distribution of heroin. United States v. Patterson, 819 F.2d 1495, 1501 (9th Cir.1987).

Lujan’s motion was renewed at the close of the Government’s case in chief but was not made at the close of all trial evidence. Because Lujan failed to renew his motion at the close of all trial evidence, he waived appellate review of this issue. See, e.g., United States v. Piache, 913 F.2d 1375, 1379 (9th Cir.1990) (noting waiver generally results where motion to sever is brought at close of Government’s case in chief but is not renewed at close of all trial evidence); United States v. Figueroa-Paz, 468 F.2d 1055, 1057 (9th Cir.1972) (same). Further, Lujan has not shown that two noted exceptions to the requirement of renewal may apply. See United States v. Kaplan, 554 F.2d 958, 965 (9th Cir.) (per curiam), cert. denied, 434 U.S. 956, 98 S.Ct. 483, 54 L.Ed.2d 315 (1977).

IV. Hearsay: December 30, 1987 Telephone Conversation

Lujan argues the trial court abused its discretion in admitting the testimony of DEA Special Agent O’Connor and evidence concerning a December 30, 1987 telephone call from Ida Romero to Rose Arehart.

A. Arehart

We conclude Arehart’s statements were admissible as nonhearsay pursuant to Fed.R.Evid. 801(d)(2)(E), as “statement[s] by a coconspirator of a party during the course and in furtherance of the conspiracy.” The district court’s finding that Arehart was a member of the conspiracy was not clearly erroneous. See United States v. Zavala-Serra, 853 F.2d 1512, 1515 (9th Cir.1988). Evidence established Arehart’s role in the conspiracy as maintaining a message center at her residence for the narcotics conspiracy. The statement directing Romero to Lujan’s house was admissible as Arehart sought to induce Romero “to deal with the conspirators or in any other way to cooperate or assist in achieving the conspirators’ common objective” of narcotics transactions. Id. at 1516 (quoting United States v. Foster, 711 F.2d 871, 880 (9th Cir.1983) (other citation omitted), ce rt. denied, 465 U.S. 1103, 104 S.Ct. 1602, 80 L.Ed.2d 132 (1984)). Finally, there is no Confrontation Clause problem raised since the requirements of Rule 801(d)(2)(E) are satisfied. Bourjaily v. United States, 483 U.S. 171, 183-84, 107 S.Ct. 2775, 2782-83, 97 L.Ed.2d 144 (1987).

B. Romero

The Government argues that Romero’s taped statements were not hearsay and were admissible as relevant evidence which was not offered to prove the truth of the matter asserted. See Fed.R.Evid. 801(c); United States v. Sanchez-Lopez, 879 F.2d 541, 554 (9th Cir.1989). No Confrontation Clause issue is raised where the statements are not offered for the truth of the matter asserted. United States v. Kirk, 844 F.2d 660, 663 (9th Cir.) (per curiam), cert. denied, 488 U.S. 890, 109 S.Ct. 222, 102 L.Ed.2d 213 (1988).

Here, Romero’s statements were relevant on Romero’s state of mind as a prospective purchaser of drugs, establishing the relationship of the parties in the conversation. Lujan argues the portion of the conversation referring to him should have been stricken. Lujan did not, however, request this exclusion from the trial court. See, e.g., United States v. Schmit, 881 F.2d 608, 612 (9th Cir.1989). Even assuming, arguendo, any error rose to a constitutional dimension, we conclude such error would not be reversible because it was harmless beyond a reasonable doubt. United States v. Bibbero, 749 F.2d 581, 584 (9th Cir.1984), cert. denied, 471 U.S. 1103, 105 S.Ct. 2330, 85 L.Ed.2d 847 (1985).

V.Hearsay Testimony: Officer Miller

Lujan contends the district court abused its discretion in admitting hearsay testimony of James Miller, a police officer with the City of Salem, concerning statements made to him by the informant Susan[*411] Keller. We find no abuse of discretion as Miller’s testimony was admissible as a pri- or consistent statement offered to rebut a charge of improper influence or motive under Fed.R.Evid. 801(d)(1)(B). United States v. Miller, 874 F.2d 1255, 1271 (9th Cir.1989).

Further, Keller’s statements to Miller are admissible under the rule because the defendants “opened the door” by cross-examining Keller concerning the prior statements. See, e.g., United States v. Stuart, 718 F.2d 931, 935 (9th Cir.1983). Keller testified on cross-examination that she never purchased “anything” from Lu-jan in a public place. Finally, Keller testified that she had seen Lujan deliver drugs to Dale Rhodes.

VI. Hearsay Testimony: Keller

Lujan argues the district court abused its discretion in denying his motion for severance on grounds that he was prejudiced by the hearsay testimony of informant Susan Keller. See Patterson, 819 F.2d at 1501. Similarly, Lujan contends the district court abused its discretion in admitting Keller’s hearsay testimony. See Kirk, 844 F.2d at 663.

As already discussed, Lujan’s failure to renew his motion to sever at the close of all trial evidence waived appellate review of the severance issue. See, e.g., Plache, 913 F.2d at 1379.

With respect to the hearsay challenge, we find the statements were admissible as a coconspirator’s statement under Fed.R. Evid. 801(d)(2)(E) as they sought to encourage Keller’s continued purchase and participation in the conspiracy. See United States v. Vincent, 758 F.2d 379, 381 (9th Cir.), cert. denied, 474 U.S. 838, 106 S.Ct. 116, 88 L.Ed.2d 95 (1985); United States v. Whitten, 706 F.2d 1000, 1018 (9th Cir.), cert. denied, 465 U.S. 1100, 104 S.Ct. 1593, 80 L.Ed.2d 125 (1983).

VII. Motion to Strike Overt Act

The conspiracy count of the Superseding Indictment alleged in overt act number three of Count II: “[0]n June 27, 1985, Robert Steven Lujan did distribute approximately four ounces of tar heroin for $24,000.00.” Lujan appeals the denial of his trial motion to strike this overt act on the basis there was insufficient evidence that the alleged sale was in furtherance of the conspiracy. We review the evidence in the light most favorable to the Government to determine if “any rational trier of fact could have found the essential elements of [conspiracy] beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original) (citation omitted); see also United States v. Kenny, 645 F.2d 1323, 1335 (9th Cir.) (“whether a single conspiracy has been proved, rather than multiple conspiracies,” essentially concerns the “sufficiency of the evidence”), cert. denied, 452 U.S. 920, 101 S.Ct. 3059, 69 L.Ed.2d 425 (1981).

We conclude that there was sufficient evidence to connect Lujan to the drug conspiracy at trial. “A single conspiracy may involve several subagreements or subgroups of conspirators.” Bibbero, 749 F.2d at 587 (citation omitted); see also United States v. Arbelaez, 719 F.2d 1453, 1457-58 (9th Cir.1983) (evidence need only support a finding that a single conspiracy exists and need not exclude every hypothetical conspiracy), cert. denied, 467 U.S. 1255, 104 S.Ct. 3543, 82 L.Ed.2d 847 (1984).

VIII. Trial Transcript Furnished to Jury

After about four hours on the first day of deliberation, the jury sent a note to the district court requesting a copy of the trial transcript. Lujan argues the district court abused its discretion in furnishing the trial transcript to the jury.

Under the circumstances, the trial judge did not abuse his discretion in providing the trial transcripts to the jury. Compare United States v. Portac, Inc., 869 F.2d 1288, 1295 (9th Cir.1989), cert. denied, — U.S. —, 111 S.Ct. 129, 112 L.Ed.2d 97 (1990). United States v. Betancourt, 838 F.2d 168, 175 (6th Cir.), cert. denied, 486 U.S. 1013, 108 S.Ct. 1748, 100 L.Ed.2d 210 (1988). While more time would have been[*412] preferred for review, the trial court provided counsel an opportunity to note inaccuracies in the transcript. The transcripts were merely to be used as an aid to the jury. The instruction cautioned the jury that the transcript would not serve as a substitute for their memory or assessment of witness credibility. The jury was admonished to weigh all the evidence and not to use the transcript to focus on any portion of the trial. Finally, the trial court instructed the jury the transcript was not authoritative and the juror’s memory should prevail.

IX. Rule 32(c)(3)(D)

Lujan contends the sentencing court failed to comply with Fed.R.Crim.P. 32(c)(3)(D) on matters in the presentence report which he controverted. The legality of a sentence is reviewed de novo. United States v. Fernandez-Angulo, 863 F.2d 1449, 1451 (9th Cir.1988), vacated on other grounds, 897 F.2d 1514 (9th Cir.1990) (en banc).

On appeal, Lujan argues the district failed to resolve, through Rule 32(c)(3)(D), three alleged factual inaccuracies in the presentence report at 1T ¶ 45-47: (1) Lujan had a managerial role in drug dealing at the Lombard address; (2) the amount and purity of the drugs attributable to Lujan; and (3) Lujan supplied cocaine to Saragosa Jiminez.

Because Lujan did not raise the first and third issues before the district court, he waived these issues on appeal. See United States v. Roberson, 896 F.2d 388, 391 (9th Cir.1990) (noting defendant has initial burden to proffer evidence to show inaccuracy under Rule 32(c)(3)(D)); United States v. Safirstein, 827 F.2d 1380, 1387 (9th Cir.1987).

Based on argument at the sentencing hearing, the court directed changes in the presentence report on the purity level of the cocaine. Further, the court ordered the presentence report be changed to reflect Lujan was not responsible for acts occurring after September 25, 1987. However, the sentencing court rejected Lujan’s argument on the amount of the drugs, relying on the evidence presented at trial. Susan Keller’s testimony at trial supported this amount. She also characterized the volume of traffic at the Lombard address as medium to high, and heroin was almost always available. Therefore, the substantive requirements of Rule 32(c)(3)(D) were satisfied. See Fernandez-Angulo, 897 F.2d at 1516-17.

The Government correctly notes, however, that a technical violation of the rule was committed when the district court failed to append to the presentence report the appropriate findings resolving controverted matters. Under these circumstances, resentencing is not required. To correct the technical error, we remand with instructions that the district court append to the presentence report the required findings. Id. at 1517.

X. Conclusion

Lujan’s conviction is affirmed. We remand for the district court to append the requisite findings to the presentence report.

AFFIRMED and REMANDED.