Federal Evidence Review

Agent’s testimony concerning the defendant’s character and the criminal conduct of others was inadmissible as non-hearsay to explain the background in the investigation, in United States v. Johnson, 529 F.3d 493 (2d Cir. 2008)

Normally, non-hearsay evidence may be offered to provide background concerning the case or investigation. This evidence may include information about how an investigation began or focused on particular persons or activities, and is not considered inadmissible hearsay. See, e.g., United States v. Mejia, 909 F.2d 242, 247 (7th Cir. 1990) (Non-hearsay “[e]vidence about the tip the DEA received was relevant to show something other than the tip's truth. That evidence was relevant to show why the DEA was watching Mejia's home, a fact that in no way depended on the tip's truth.”); United States v. Love, 767 F.2d 1052, 1063 (4th Cir. 1985) (“[A]n out of court statement is not hearsay if it is offered for the limited purpose of explaining why a government investigation was undertaken.”), cert. denied, 474 U.S. 1081 (1986). In the same vein, we also recently blogged on United States v. Goosby, 523 F.3d 632 (6th Cir. 2008), a case in which non-hearsay concerning the investigation did not violate the Confrontation Clause.

A recent Second Circuit case provides an example of the limits to using non-hearsay background evidence. In that case, the background evidence was clearly inadmissible. However, because the defendant failed to object at trial, the error did not constitute plain error in the case.

Defendant Walker was prosecuted for conspiring to distribute cocaine base. At trial, a DEA special agent provided background on the case but broadly offered information about the investigation and individuals under investigation. For example, when the agent was asked about a particular meeting, he answered:

“Well, after Mr. Bolden had been arrested in Albany, he had told us the circumstances surrounding the drugs with which he was arrested . . . that he had obtained the crack cocaine from an individual nicknamed Q, who we knew to be Ernest Walker, who we were already investigating, having identified him as the supplier of multi-ounce crack quantities that were being distributed in Rutland, Vermont.”

The agent described the defendant’s character “very shrewd, smart, street-smart, calculating.” The agent vouched for the credibility of other government witnesses, claiming to have independently verified the information they provided. When asked about a person using the nickname “Mississippi,” the agent responded: “[W]e had learned from informants in this case that there was a male nicknamed Mississippi … who was involved with Mr. Collins and Mr. Walker in the distribution of crack cocaine and other criminal endeavors.” Johnson, 529 F.3d at 498. The defendant failed to object to this testimony at trial. After the defendant was convicted, on appeal for the first time, he challenged the testimony of the special agent as inadmissible and unfairly prejudicial.

The circuit reviewed the appeal for plain error, since no objection was raised at trial. While the evidence errors were “substantial and egregious,” they did not rise to the level of plain error based on overwhelming evidence of guilt. The circuit agreed that much of the agent’s testimony was improper, including testimony about the government’s belief in the defendant’s guilt.

The government argued that some of the agent’s testimony was admissible as non-hearsay to supply background concerning the investigation. The circuit rejected this argument based on the breadth of the agent’s testimony:

“The government’s argument seems to assume that showing the pertinent background of the investigation required the inclusion of information possessed by Agent Doud that was prejudicial to Walker. This is incorrect. When there is legitimate value to showing that the investigating agent was acting in response to information he had received, it is often possible to bring his receipt of that information into evidence without including the portions that are prejudicial to the defendant on trial. For example, there would have been no problem if Agent Doud had testified that, upon the arrest of Bolden, 'he told us the circumstances surrounding the drugs with which he was arrested,' without adding that Bolden ‘told us . . . he had obtained the crack cocaine from . . . Ernest Walker’ -much less adding that 'we were already investigating [Walker], having identified him as the supplier of multi-ounce crack quantities.'”
Johnson, 529 F.3d at 500.

While the circuit did not condone the questions asked of and answers provided by the agent, the circuit ultimately concluded there was no miscarriage of justice, and therefore no plain error, based on overwhelming evidence of guilt. The evidence included two confessions, recorded conversations and co-conspirator testimony. The circuit concluded “that the errors, although egregious and obvious, did not satisfy the exacting standard for reversal of a conviction in the absence of objection. Our ruling should not be construed as giving carte blanche to prosecutors to disregard the rules of law. Had there been an objection or even slightly less conclusive proof, we might well have been compelled to vacate the conviction.” Johnson, 529 F.3d at 503.

Non-hearsay background evidence can be useful to set the stage. However, as Johnson teaches, there are limits. Notwithstanding the limits, the defense clearly had ample opportunity to object at trial at various points in the trial. If the evidence had not been so compelling, a different result could have occurred on appeal.