Unpublished Disposition, 915 F.2d 1581 (9th Cir. 1990)

MEMORANDUM^* 

Albert DeJesus Escobar appeals his conviction, following a jury trial, for two counts of conspiracy to possess and distribute cocaine and distribution of cocaine in violation of 21 U.S.C. §§ 841(a) (1) and 846. Escobar contends that the district court erred by denying his motion to dismiss the indictment because government officials searched his prison locker during his trial and removed documents allegedly protected by the attorney-client privilege. Escobar also contends that the district court erred by admitting into evidence a coded telephone-address book which he had carried in his wallet at the time of his arrest. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

We review de novo the denial of a defendant's motion to dismiss an indictment on constitutional grounds. United States v. Emmert, 829 F.2d 805, 810 (9th Cir. 1987). The district court's factual findings must be accepted unless clearly erroneous. Id. at 810-11.

A party who fails to raise defenses or objections before trial waives them unless the court, for cause, grants relief. Fed. R. Crim. P. 12(f); United States v. Wood, 550 F.2d 435, 439-40 (9th Cir. 1976) (motion to suppress evidence waived if not made pretrial); see United States v. Wilson, 690 F.2d 1267, 1275 (9th Cir. 1982) (defendant waived appellate review by failing, inter alia, to notify the district court that jail officials had seized his legal papers before trial), cert. denied, 464 U.S. 867 (1983); United States v. Palmateer, 469 F.2d 273, 274 (9th Cir. 1972) (defendant waived objection to warrantless search of prison cell by failing to bring motion to suppress evidence before trial). In addition, a defendant must testify at trial to raise and preserve for review a claim that he could have been improperly impeached. Luce v. United States, 469 U.S. 38, 43 (1984); United States v. Bagley, 837 F.2d 371, 376 (9th Cir.), cert. denied, 488 U.S. 924 (1988).

Here, Escobar contends that prison officials searched his prison cell and locker while he was attending his trial, and removed certain documents which allegedly contained confidential attorney-client communications. Escobar admitted that he learned of the search before the end of the trial.¹  Nonetheless, he failed to notify the court of the seizure of his papers until he filed his motion to dismiss the indictment ten days after the trial had ended. The district court did not clearly err by finding that this failure was due to a conscious trial strategy. See Palmateer, 469 F.2d at 274. Thus, Escobar waived his objections to the search and may not bring them on appeal. See Wilson, 690 F.2d at 439-40.

We review a district court's ruling on the admissibility of evidence for an abuse of discretion. Emmert, 829 F.2d at 808.

The government introduced a coded notebook found on Escobar's person at the time of his arrest. The government's expert testified that such notebooks are commonly used in the drug trade; consequently, Escobar's possession of the notebook was relevant to show his knowing participation in the drug transactions with which he was charged. See Fed.R.Evid. 401, 402; United States v. Espinoza, 827 F.2d 604, 611-12 (9th Cir. 1987), cert. denied, 485 U.S. 968 (1988). Any implication that he had also written the coded entries was minimally prejudicial, and the potential for prejudice was further minimized by the district court's limiting instruction to the jury.²  See Fed.R.Evid. 403; United States v. Morris, 827 F.2d 1348, 1350 (9th Cir. 1987), cert. denied, 484 U.S. 1017 (1988). Finally, the notebook was not hearsay because it was not offered to show the truth of its contents.³  See Fed.R.Evid. 801(c); United States v. May, 622 F.2d 1000, 1007 (9th Cir.), cert. denied sub nom. Phipps v. United States, 449 U.S. 984 (1980).

Thus, the district court did not abuse its discretion by admitting the notebook. See Espinoza, 827 F.2d at 611-12; May, 622 F.2d at 1007-08.

AFFIRMED.