United States v. Richard Carrillo, United States of Am. v. Ernest Benavidez, 16 F.3d 1046 (9th Cir. 1994). · Go Syfert
United States v. Richard Carrillo, United States of Am. v. Ernest Benavidez, 16 F.3d 1046 (9th Cir. 1994). Cases Citing This Book View Copy Cite
122 citation events (106 in the last 25 years) across 27 distinct courts.
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At page 1049 Admissibility of negotiated drug transaction records35 citing cases“in determining whether the public safety exception to miranda applies, we ask whether there was an objectively reasonable need to protect the police or the public from any immediate danger.”2 citing courts quote it · 32 listed here
  • United States v. Alfonzo Williams, 842 F.3d 1143 (9th Cir. 2016).published 4 cites
    “In determining whether the public safety exception to Miranda applies, we ask whether there was an objectively reasonable need to protect the police or the public from any immediate danger.” United States v. Carrillo, 16 F.3d 1046, 1049 (…
  • United States v. Castaneda, 196 F. Supp. 3d 1065 (D. Ariz. 2016).published
    (Before searching the defendant’s person after he was arrested on drug charges, the officer asked “if he had any drugs or needles on his person.)
  • United States v. McKee, 157 F. Supp. 3d 879 (D. Nev. 2016).published
    This public-safety exception applies when there is “ ‘an objectively reasonable need to protect the police or the public from immediate danger.’ That is, the police must reasonably believe that there is a serious likelihood of harm to the…
  • Transbay Auto Serv., Inc. v. Chevron USA Inc., 807 F.3d 1113 (9th Cir. 2015).published 2 cites
    While it is well settled there must be evidence of adoption “beyond mere possession,” United States v. Carrillo, 16 F.3d 1046, 1049 (9th Cir. 1994), we have not yet addressed facts analogous to the situation here where a party acted based…
  • People v. Elizalde, 351 P.3d 1010 (Cal. 2015).published
    (before search at a detention center officer may ask if arrestee has any drugs or needles on his person)
  • People v. Frye, 2014 COA 141, 356 P.3d 1000.published
    United States v. Carillo, 16 F.3d 1046, 1049 (9th Cir. 1994), applied the public safety exception to Miranda because the suspect was asked if he had syringes on his person.
  • United States v. Henry, 939 F. Supp. 2d 1279 (N.D. Ga. 2013).published
    The Court recognizes that in United States v. Carrillo, 16 F.3d 1046, 1049 (9th Cir.1994), the court found the defendant’s statement admissible under public safety exception where, prior to administering Miranda warnings, the officer asked…
  • United States v. Farid Mohammed, 501 F. App'x 431 (6th Cir. 2012).unpublished
    See United States v. Reyes, 353 F.3d 148, 152-53 (2d Cir.2003) (collecting cases) (upholding under the public-safety exception an officer’s question, just before a pat down, whether a suspected narcotics dealer had anything in his pocket t…
  • United States v. Farid Mohammed, No. 10-4145, 2012 WL 4465626 (6th Cir. Sept. 28, 2012).unpublished
    (officer’s question if suspect had drugs or needles on his person met public- safety exception because it stemmed from objectively reasonable need to protect himself)
  • Terebea Williams v. Deborah Jacquez, 472 F. App'x 851 (9th Cir. 2012).unpublished 4 cites
    In justifying the admission of statements 2 under the Ïuarles exception even where officers lacµed actual µnowledge of a weapon, Brady, 819 F.2d at 888 , and where there was no 'pressing need for haste,' United States v. Carrillo, 16 F.3d…
Show 22 more citing cases
  • Watson v. United States, 43 A.3d 276 (D.C. 2012).published 2 cites
    Other courts have held that asking an arrestee, during the conduct of a search, whether he had any needles on him comes within the public-safety exception because even though the risk presented by a needle (or other sharp object) differs f…
  • United States v. Fautz, 812 F. Supp. 2d 570 (D.N.J. 2011).published
    See, e.g., United States v. King, 182 Fed.Appx. 88, 91 (3d Cir.2006) (suspected methamphetamine lab); United States v. Khalil, 214 F.3d 111, 115-116, 121 (2d Cir.2000) (pipe bombs); United States v. Webster, 162 F.3d 308, 332 (5th Cir.1998…
  • United States v. Duncan, 308 F. App'x 601 (3d Cir. 2009).unpublished 6 cites
    The exception undoubtedly extends to officers’ questions necessary to secure their own safety.”) (quotation marks omitted); United States v. Carrillo, 16 F.3d 1046, 1050 (9th Cir.1994); United States v. Edwards, 885 F.2d 377 , 384 n. 4 (7t…
  • United States v. Held, 184 F. App'x 620 (9th Cir. 2006).unpublished
    Id. at 1165-66 ; Allen, 305 F.3d at 1050 (quoting United States v. Carrillo, 16 F.3d 1046, 1049 (9th Cir. 1994)).
  • United States v. Monroe Martinez, 406 F.3d 1160 (9th Cir. 2005).published 2 cites
    In order for the public safety exception to apply, there must have been “an objectively reasonable need to protect the police or the public 5254 UNITED STATES v. MARTINEZ from any immediate danger associated with [a] weapon.” Id. at 658 ,…
  • United States of Am., Appellant-Cross-Appellee v. Ramon Reyes, Defendant-Appellee-Cross-Appellant, 353 F.3d 148 (2d Cir. 2003).published
    (questioning whether narcotics defendant had needles on his person, asked as a matter of routine rather than as a result of specific information regarding the defendant, stemmed from objectively reasonable concern for of…)
  • United States v. Williams, 282 F. Supp. 2d 586 (E.D. Mich. 2003).published
    (finding statement admissible under public safety exception where, prior to administering Miranda warnings, officer asked defendant before searching him whether defendant had any drugs or needles on his person)
  • United States v. Lackey, 334 F.3d 1224 (10th Cir. 2003).published
    See United States v. Shea, 150 F.3d 44, 48 (1st Cir.1998) (pre-Miranda question asking arrested defendant whether he had any weapons fell within the public-safety exception); United States v. Young, 58 Fed.Appx. 980, 981 (4th Cir.2003) (un…
  • United States v. Bates, 47 F. App'x 477 (9th Cir. 2002).unpublished 2 cites
    United States v. Carrillo, 16 F.3d 1046, 1049 (9th Cir.1994) (internal quotation marks omitted). .
  • Paul Donald Allen v. Ernie Roe, Warden Bill Lockyer, Attorney Gen. of the State of California, 305 F.3d 1046 (9th Cir. 2002).published 3 cites
    However, under the public safety exception, Miranda warnings need not be given when “police officers ask questions reasonably prompted by a concern for the public safety.” Quarles, 467 U.S. at 656 , 104 S.Ct. 2626 . 4 In order for the publ…
  • Benson v. State, 698 So. 2d 333 (Fla. 4th DCA 1997).published
    No reported decision in Florida has yet addressed whether a medical emergency exception to Miranda should be created, [2] or has even applied the Quarles exception to justify the admission of a defendant's inculpatory statement, under any…
  • People v. Cressy, 47 Cal. App. 4th 981 (Cal. Ct. App. 1996).published
    But absent actual coercion by the officer, there is no constitutional imperative requiring the exclusion of the evidence that results from police inquiry of this kind; and we do not believe that the doctrinal underpinnings of Miranda requi…
  • United States v. Arlene Newland, Antonio Hernandez-Menendez, Santos Hernandez-Menendez, Nick Newland, 69 F.3d 545 (9th Cir. 1995).unpublished
    United States v. Carrillo, 16 F.3d 1046, 1049 (9th Cir.1994), and because it was circumstantially authenticated, United States v. Huguez-Ibarra, 954 F.2d 546, 552 (9th Cir.1992). 11 While Newland maintains his innocence, a reasonable jury…
  • United States v. Arcadio Hernandez, 751 F.3d 538 (7th Cir. 2014).published 2 cites
    (stating that “the danger of transmission of disease or contact with harmful substances is real and serious enough)
  • United States v. Francis Joseph Reilly, AKA Ian MacCormick AKA Steven James Conner, 224 F.3d 986 (9th Cir. 2000).published
  • State v. O'NEAL, 921 A.2d 1079 (N.J. 2007).published
  • United States v. Lutz, 207 F. Supp. 2d 1247 (D. Kan. 2002).published
  • United States v. Creech, 52 F. Supp. 2d 1221 (D. Kan. 1998).published
  • State v. Cunningham, 40 P.3d 535 (Or. Ct. App. 2002).published
  • People v. Allen, 199 P.3d 33 (Colo. Ct. App. 2007).published
  • United States of Am. v. Francis Harrington, 2021 DNH 138P (D.N.H. 2021).published
  • State v. Fleetwood, 347 Or. App. 594 (Or. Ct. App. 2026).published
At page 1050 Admissibility of spontaneous statements and impeachment by coaching20 citing casesindicating that misconduct does not occur when a prosecutor’s misstatements “[have] earmarks of inadvertent mistake2 citing courts put it this way · 19 listed here
  • United States v. Christopher Agbaje, No. 24-2944 (8th Cir. May 13, 2026).published
    Because we are remanding, however, we observe that regardless of its propriety, the government’s preparation — and alleged coaching — of Etue “is a proper subject of impeachment in cross-examination.” United States v. Carrillo, 16 F.3d 104…
  • Com. v. Colon, P., 230 A.3d 368, 2020 PA Super 43 (Pa. Super. Ct. 2020).published 2 cites
    (Coaching is a proper subject of impeachment in cross-examination.” (citation omitted))
  • United States v. James Lloyd, 807 F.3d 1128 (9th Cir. 2015).published
    (a prosecutor's "misstatement ha[dJ earmarks of inadvertent mistake, not misconduct)
  • United States v. William Brockbrader, 586 F. App'x 275 (9th Cir. 2014).unpublished
    The prosecutor’s misstatement about where Brockbrader registered in 2001 has the “earmarks of inadvertent mistake, not misconduct,” United States v. *277 Canillo, 16 F.3d 1046, 1050 (9th Cir.1994), and was not plain error. 2.
  • United States v. Nancy Mageno, 762 F.3d 933 (9th Cir. 2014).published 4 cites
    The prosecutor in United States v. Carrillo, 16 F.3d 1046, 1050 (9th Cir. 1994), for example, misstated a fact on which the defense placed much significance.
  • United States v. Timothy Gaines, 575 F. App'x 791 (9th Cir. 2014).unpublished 2 cites
    We agree with the district court that the misstatement was “simple arithmetic that the jury was capable of reconstructing and correcting on its own.” Moreover, the district court’s instructions to the jury reminded it, among other things,…
  • United States v. Calvin Colbert, Jr., 542 F. App'x 700 (9th Cir. 2013).unpublished
    United States v. Carrillo, 16 F.3d 1046, 1050 (9th Cir.1994). 3.
  • Watson v. United States, 43 A.3d 276 (D.C. 2012).published 2 cites
    Other courts have held that asking an arrestee, during the conduct of a search, whether he had any needles on him comes within the public-safety exception because even though the risk presented by a needle (or other sharp object) differs f…
  • United States v. Juan Rodriguez, 482 F. App'x 231 (9th Cir. 2012).unpublished
    To the extent that the prosecutor misspoke about the number of contacts, his “misstatement has earmarks of inadvertent mistake, not misconduct,” United States v. Carrillo, 16 F.3d 1046, 1050 (9th Cir.1994), and at the least does not consti…
  • Brincko v. Rio Props., Inc., 278 F.R.D. 576 (D. Nev. 2011).published
    United States v. Carrillo, 16 F.3d 1046, 1050 (9th Cir.1994).
Show 9 more citing cases
  • United States v. Jones, 567 F.3d 712 (D.C. Cir. 2009).published
    (emphasizing the officer’s “deliberate refusal” to ask further questions)
  • United States v. Duncan, 308 F. App'x 601 (3d Cir. 2009).unpublished 6 cites
    The exception undoubtedly extends to officers’ questions necessary to secure their own safety.”) (quotation marks omitted); United States v. Carrillo, 16 F.3d 1046, 1050 (9th Cir.1994); United States v. Edwards, 885 F.2d 377 , 384 n. 4 (7t…
  • Bryant v. Mattel, Inc., 573 F. Supp. 2d 1254 (C.D. Cal. 2007).published
    (finding no violation of the attorney-client privilege where prosecutor, who asked whether a criminal defendant had consulted with his attorney during a recess in order to raise an inference of attorney coaching of testi…)
  • United States v. Ali, 27 F. App'x 728 (9th Cir. 2001).unpublished
    With respect to the prosecutor’s comment during closing argument, we believe the “misstatement has earmarks of inadvertent mistake, not misconduct.” United States v. Carrillo, 16 F.3d 1046, 1050 (9th Cir.1994).
  • Bankr. L. Rep. P 77,588, 48 Fed. R. Evid. Serv. 524, 97 Cal. Daily Op. Serv. 9549, 97 Daily Journal D.A.R. 15,303 United States of Am. v. Leonhard Bauer, 132 F.3d 504 (9th Cir. 1997).published
    While it is certainly true that not all communications between attorney and client are privileged, including such information as the identity of the client, the amount of the fee, the identification of payment by case file name, the genera…
  • United States v. Bauer, 132 F.3d 504 (9th Cir. 1997).published
    While it is certainly true that not all communications between attorney and client are privileged, including such information as the identity of the client, the amount of the fee, the identification of payment by case file name, the genera…
  • United States v. Thomas R. Farrugia, United States of Am. v. Donald Kapperman, 91 F.3d 156 (9th Cir. 1996).unpublished
    Id. at 598 (holding that any prejudice was remedied when the trial judge instructed the jury that the attorney's statements did not constitute evidence); United States v. Carrillo, 16 F.3d 1046, 1050-51 (9th Cir.1995) (same), aff'd in part…
  • United States v. Linda Mai, 615 F. App'x 416 (9th Cir. 2015).unpublished 2 cites
    (indicating that misconduct does not occur when a prosecutor’s misstatements “[have] earmarks of inadvertent mistake)
  • United States v. Jose Armando Rivera, 35 F.3d 573 (9th Cir. 1994).unpublished
At page 1051 Declining to find prejudice when evidence is persuasive4 citing casesdeclining to find prejudice where “the jury heard independent and far more persuasive evidence of the same information1 citing court put it this way
  • Carlos Delgado v. Lincoln Transp. Servs., Inc., No. 2:19-cv-09449 (C.D. Cal. Dec. 27, 2019).
    Indeed, “nothing is to be 15 more jealously guarded by a court than its jurisdiction.” United States v. Ceja-Prado, 333 16 F.3d 1046, 1051 (9th Cir. 2003) (internal quotations omitted).
  • United States v. Timothy Gaines, 575 F. App'x 791 (9th Cir. 2014).unpublished 2 cites
    We agree with the district court that the misstatement was “simple arithmetic that the jury was capable of reconstructing and correcting on its own.” Moreover, the district court’s instructions to the jury reminded it, among other things,…
  • United States v. Arthur Hobbs, 70 F.3d 1280 (9th Cir. 1995).unpublished
    The lawyers are not witnesses." See Id. at 598 ; United States v. Carrillo, 16 F.3d 1046, 1051 (9th Cir.1994).
  • United States v. Ramon Ruiz, 67 F.3d 310 (9th Cir. 1995).unpublished
At page 1046 CANBY, Circuit Judge. Following a jury trial, Richard Carrillo and Ernest Benavidez were convicted of numerous charges relating to the possession and…2 citing casesopening of page *1046 (no citing court says what it cites this page for)
  • Bradley v. Schmalzried, M.D., No. 4:22-cv-00414 (N.D. Cal. Jan. 11, 2023).
    There is a “general presumption against fraudulent joinder,” 15 and defendants who assert that a party is fraudulently joined carry a “heavy burden.” Hunter, 582 16 F.3d at 1046. 17 18 III.
  • Bradley v. Schmalzried, M.D., No. 4:22-cv-00414 (N.D. Cal. July 13, 2022).
    There is a “general presumption against fraudulent joinder,” 15 and defendants who assert that a party is fraudulently joined carry a “heavy burden.” Hunter, 582 16 F.3d at 1046. 17 18 III.
At page 1048 “We conclude that Benavidez had adopted this statement.”1 citing casethe opinion's own words at *1048
At page 1059 cited at this page1 citing case
  • Gardner, No. 1:25-cv-00182 (E.D. Cal. Dec. 23, 2025).
    “Leave to amend may be denied if the proposed 15 amendment is futile or would be subject to dismissal.” Wheeler v. City of Santa Clara, 894 16 F.3d 1046, 1059 (9th Cir. 2018). 17 III.
Other citing cases1 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Richard CARRILLO, Defendant-Appellant; UNITED STATES of America, Plaintiff-Appellee, v. Ernest BENAVIDEZ, Defendant-Appellant
92-10466, 92-10469.
Court of Appeals for the Ninth Circuit.
May 17, 1994.
Published opinion
16 F.3d 1046
Thomas C. Bradley, Assistant United States Public Defender, Reno, Nevada, and Richard F. Cornell, Reno, Nevada, for the defendants-appellants., William M. Welch, Assistant United States Attorney, Reno, Nevada, for the plaintiff-appellee.
Choy, Canby, Noonan.
Cited by 77 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 78%
Citer courts: S.D. California (1)
CANBY, Circuit Judge.

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 evi[*1048] dence 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.

I. BACKGROUND

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.

II. ANALYSIS

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 unau-thentieated statement is not hearsay if the party against whom it is introduced has manifested an adoption of its contents or belief in its truth. Fed.R.Evid. 801(d)(2)(B). We conclude that Benavidez had adopted this statement.

In United States v. Ospina, 739 F.2d 448, 451 (9th Cir.), cert. denied, 469 U.S. 887, 105 S.Ct. 262, 83 L.Ed.2d 198 (1984), we ruled that business cards that contained handwritten notations and that were found on a dresser in the defendant’s motel room constituted adopted admissions and, thus, were not hearsay. One of the business cards bore the phone number of the hotel where the other defendants were staying. The other card[*1049] contained the address of the location where the cocaine involved in that case was transferred. Id. We accepted the government’s view that the business cards were adopted admissions “because they were in the possession of’ the defendant and the defendant “acted on the information written on the cards when he travelled to the address written there to pick up the cocaine.” Id.

We conclude that the facts of this case fall within the rule of Ospina. Benavidez negotiated with an undercover agent the terms of a cocaine transaction, including the price and quantity. The figures on the slip of paper apparently represented the profit expected from a 20-kilogram cocaine deal at $18,000 per kilogram and a 15-kilogram cocaine deal at the same price. These prices were consistent with the prices Benavidez had quoted Agent Jackson in negotiations. Likewise, the quantities were consistent with Benavi-dez’s initial agreement to sell 20 kilograms of cocaine and his later statement that he could obtain only 15 kilograms. The district court found that Exhibit 66 was “a record of the negotiations and the profit that might be made” in a cocaine deal. We conclude that this finding is not erroneous. Benavidez manifested adoption of the statement in Exhibit 66 by possessing the slip of paper and negotiating sale prices and quantities for cocaine that were consistent with the figures on the slip of paper.

Benavidez relies principally on United States v. Ordonez, 737 F.2d 793 (9th Cir.1983), but we find that case distinguishable. In Ordonez, we ruled that the mere fact that a drug ledger was found in the defendant’s apartment was not enough to permit an inference that he had adopted its contents. There was no other evidence of adoption. We accordingly held that the evidence had to be excluded. Id. at 800-01.

Here, there was evidence of adoption that went beyond mere possession. The figures written on the paper coincided with Benevi-dez’s negotiations. There is a sufficient link between the writing and Benevidez’s actions to permit the district court to find an adoption, within the meaning of Ospina. The district court did not err in admitting Exhibit 66.

B. The Public Safety Exception to the Miranda Rule

Also admitted into evidence at trial was a statement made by Carrillo before he was given a Miranda warning. After Carrillo was arrested and transported to the detention facility, Officer Weeks searched Carrillo. Before beginning, however, the officer asked Carrillo if he had any drugs or needles on his person. Carrillo responded, “No, I don’t use drugs, I sell them.” Carrillo argues that this statement should have been suppressed because it was made before Carrillo had been given a Miranda warning. The district court admitted the evidence under the “public safety” exception to Miranda. See New York v. Quarles, 467 U.S. 649, 655, 104 S.Ct. 2626, 2630, 81 L.Ed.2d 550 (1984).

In determining whether the public safety exception to Miranda applies, “we ask whether there was an objectively reasonable need to protect the police or the public from any immediate danger.” United States v. Brady, 819 F.2d 884, 888 n. 3 (9th Cir.1987) (quoting Quarles, 467 U.S. at 659, 104 S.Ct. at 2649), cert. denied, 484 U.S. 1068, 108 S.Ct. 1032, 98 L.Ed.2d 996 (1988). We agree with the district court that Officer Weeks’s question stemmed from an objectively reasonable need to protect himself from immediate danger. See Quarles, 467 U.S. at 659 n. 8, 104 S.Ct. at 2650 n. 8. Officer Weeks testified that he asks this question as a matter of policy before searching a prisoner to avoid contact with syringes and toxic substances. [1] The risk differs from that presented by a gun, but the danger of transmission of disease or contact with harmful substances is real and serious enough; a pressing need for haste is not essential. See Brady, 819 F.2d at 885 (question whether suspect had gun in car, asked after he had been frisked, is within public safety exception).

Our conclusion is buttressed by the non-investigatory nature of the officer’s question. The question called for a “yes” or “no,” not a[*1050] testimonial response. Ordinarily, a question framed in this manner would not elicit any incriminating evidence not produced by the search itself. After Carrillo gave the incriminating but unrequested response, the officer asked no more questions. Although the test is an objective one, the officer’s deliberate refusal to pursue the subject heightens our confidence that, in this case, the narrowly tailored question was a reasonable attempt by a police officer to insure his personal safety in the midst of a search. Consequently, the spontaneous and unrequested response of the suspect was properly admitted under the Quarles public safety exception to Miranda. See also United States v. Booth, 669 F.2d 1231, 1237 (9th Cir.1981) (spontaneous incriminating admission of a suspect in custody is admissible despite absence of Miranda warning, if in response to question not reasonably likely to elicit incriminating answer).

C. Cross-examination of Carrillo Regarding Attorney-Client Communications

On cross-examination, the district court allowed the prosecutor to inquire whether Carrillo had discussed his testimony with his attorney prior to taking the stand. Carrillo admitted that he had. Next, the prosecutor asked Carrillo about an event that Carrillo had discussed during direct examination that was interrupted by a court recess. The prosecutor used this line of questioning to expose a subtle difference in Carrillo’s testimony before and after the recess and, thus, to create an inference that Carrillo’s attorney had coached him on the subject during the recess. Carrillo claims that this tactic violated his attorney-client privilege.

The privilege does not extend beyond the substance of confidential attorney-client communications. In re Fischel, 557 F.2d 209, 211 (9th Cir.1977). Here, the prosecutor’s questions did not reach the substance of the legal advice given to Carrillo. The district court allowed the prosecutor to ask only whether Carrillo met with his attorney and whether his testimony was discussed at those meetings. Coaching is a proper subject of impeachment in cross-examination. Geders v. United States, 425 U.S. 80, 88-90, 96 S.Ct. 1330, 1335-1336, 47 L.Ed.2d 592 (1976). The prosecutor did not violate Carrillo’s attorney-client privilege by inquiring whether communications occurred and raising the inference of coaching.

D. Prosecutorial Misconduct

In closing argument, defense counsel for both Carrillo and Benavidez implied that the government had willfully withheld a tape recording of conversations that occurred during the cocaine transaction. [2] Defense counsel inferred that the missing tape contained exculpatory evidence, namely, conversations in which government agents expressed skepticism that Benavidez had access to the 14 or 19 additional kilograms of cocaine he had promised. The defense intended to use this skepticism to buttress its theory that Benavi-dez and Carrillo never truly conspired to distribute five or more kilograms of cocaine, and that contrary statements they made during negotiations were mere braggadocio. [3]

Attacking the missing tape claim in his rebuttal argument, the prosecutor said “... suddenly the missing tape [theory] developed. I may be wrong, and your recollection controls, but I thought we heard that tape being played by the defense as it screeched and made a lot of loud noise. Again, your recollection controls.” This apparently was a misstatement of fact because a tape had not been made of the conversation in question.

It is not at all certain that the prosecutor’s statement could be considered misconduct. He told the jury that he might be wrong, and said before and after his statement that the jury’s recollection controlled. His misstatement has earmarks of inadvertent mistake, not misconduct.

[*1051] In any event, the statement could not have prejudiced the defendants. First, the prosecutor himself warned the jury to rely on its own recollection. The court instructed the jurors that “lawyer’s statements are not evidence.”

Second, the jury heard independent and far more persuasive evidence of the same information that the defense counsel was attempting to convey with the missing tape information. Indeed, while Agent Jackson was testifying, defense counsel played a tape to the jury in which Agent Jackson and the informant agreed that Benavidez did not have the cocaine. The unsubstantiated missing tape inference could provide little additional support for skepticism that the jury had already heard expressed by government agents on tape. The prosecutor’s statement therefore was not “likely to have affected the jury’s discharge of its duty to judge the evidence fairly.” United States v. Sanchez, 944 F.2d 497, 499 (9th Cir.1991).

Finally, the independent evidence of the guilt of Benavidez and Carrillo was overwhelming. Carrillo and Benavidez engaged in lengthy negotiations with government agents. Carrillo provided the informant two samples of cocaine, one of which was given free of charge. Carrillo and Benavidez trav-elled to Reno, Nevada, to meet with undercover Agent Jackson who was posing as a large volume cocaine distributor. Benavidez made various representations that he had access to several large suppliers and, at one point, to 40 kilograms of Colombian cocaine. Finally, Carrillo and Benavidez were arrested with a kilogram of cocaine. The evidence indicated that they were arrested with only one kilogram of cocaine, not because they had no access to larger quantities, but because they were experienced and sophisticated in completing drug transactions. In light of the jury instructions, the independent evidence of the same information, and the overwhelming evidence of guilt, any prejudice stemming from the prosecutor’s apparent misstatement is negligible. No reversible error occurred.

III. CONCLUSION

The convictions of Carrillo and Benavidez are AFFIRMED.

1

. Weeks testified that during past searches he had been poked by needles and suffered headaches and skin irritation from contact with illegal drugs.

2

. Defense counsel alleged that the government had failed to provide the tape, as required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). After a hearing on the issue in which the government maintained that no tape was made of this particular conversation, the district court found that no Brady violation had occurred.

3

. Carrillo and Benavidez concede that the alleged prosecutorial misconduct is material to only one of the five counts with which they were charged, conspiracy to possess with intent to distribute five or more kilograms of cocaine.