Federal Evidence Review

Sixth Circuit reverses exclusion of statements of anonymous callers to the defendant’s cell phone after his arrest; the statements were not offered not for the truth of what the anonymous callers said but for the fact that the calls were made, providing circumstantial evidence that the defendant was involved in heroin trafficking, in United States v. Rodriguez-Lopez, 565 F.3d 312 (6th Cir. May 6, 2009) (No. 07-6045)

Formally posed and rejected in 1837 in the English case of Wright v. Doe d. Tatham, 7 Ad. & E. 313, 112 Eng. Rep. 488 (1837, Exch. Ch.), the question of the hearsay status of conduct persists into the digital age. In Wright, the issue arose as part of a will dispute in which the sole heir claimed the will was the product of fraud. The beneficiary listed in the will attempted to use letters written to the decedent to prove the decedent was competent. The court held that the letters were inadmissible hearsay since they were offered for the truth of the implied statements and that the decedent was competent. The Sixth Circuit recently considered a modern day equivalent of this hearsay quandary: is the fact that anonymous callers placed a call to a defendant’s cell phone and asked about the availability of heroin excludable as hearsay in a trial for conspiring to distribute heroin? Or could the calls be admitted as circumstantial evidence of an action from which it could be inferred that the defendant dealt in the heroin trade? In contrast to the court in Wright, the Sixth Circuit explained that under FRE 801(c) the statements were admissible as non-hearsay since the statements were not offered to prove the truth of the matter asserted.

In the case, defendant Rodriguez-Lopez was arrested by DEA agents while serving as a lookout for drug seller Robles during a controlled buy arranged and monitored by the DEA. After the arrest, DEA Special Agent Perryman “talked to Rodriguez, who insisted that he knew nothing about any drug deal and denied that he had been circling the parking lot. While [agent] Perryman was talking to him, Rodriguez’s cell phone rang repeatedly. Each of the ten times Perryman answered the phone, the caller was someone requesting heroin.” The defendant was charged with conspiring to distribute heroin and filed a motion in limine to exclude the evidence of the phone calls. The trial judge granted the motion, finding that “the United States’ own characterization of these statements-as attempts to prompt the defendant to act in a criminal manner-reveals that they contain implicit factual assertions about the declarants’ alleged desire to buy heroin and about the declarants’ belief that the defendant could supply the desired heroin.” Rodriguez-Lopez, 565 F.3d at 315. Based on this exclusion of the evidence, the prosecution filed an interlocutory appeal.

The circuit reversed and remanded, finding that the statements the agent overheard on the defendant’s cell phone after the defendant’s arrest were not excludable as hearsay. The circuit noted it faced a difficult problem in the defendant’s case because “the district court did not conduct an evidentiary hearing, the record does not reveal exactly what the anonymous callers said to Agent Perryman. We do not even know whether the callers phrased their statements as declarations (‘I want some heroin.’), questions (‘Can I get some heroin?’), or commands (‘Bring me some heroin.’).” Rodriguez-Lopez, 565 F.3d at 314. However, the circuit noted that the precise nature of the statements were not really significant to its disposition:

“But whatever their grammatical mood, the statements are not hearsay because the government does not offer them for their truth. Indeed, if the statements were questions or commands, they could not … be offered for their truth because they would not be assertive speech at all. They would not assert a proposition that could be true or false.”

The circuit cited two recent cases to support this finding that the fact the calls were made was not an assertion, including

• United States v. Wright, 343 F.3d 849, 865 (6th Cir. 2003) (“[A] question is typically not hearsay because it does not assert the truth or falsity of a fact.”)
• United States v. Thomas, 451 F.3d 543, 548 (8th Cir. 2006) (“Questions and commands generally are not intended as assertions, and therefore cannot constitute hearsay.”) (citations omitted)

Even if the calls could be construed as assertions, the circuit concluded that they would not be excluded as hearsay because “the government offers them, not for their truth, but as evidence of the fact that they were made. The fact that Rodriguez received ten successive solicitations for heroin is probative circumstantial evidence of his involvement in a conspiracy to distribute heroin.” Rodriguez-Lopez, 565 F.3d at 315 (citing Headley v. Tilghman, 53 F.3d 472, 477 (1st Cir. 1995) (questions from an unidentified caller were not admitted for their truth but as circumstantial evidence that the defendant used his beeper to receive requests for drugs). The evidence of the phone calls was admissible because “[e]ven if the callers had no real desire for the drug and no faith that Rodriguez could deliver it, the fact that he received ten of these calls is still evidence of his participation in a heroin-distribution conspiracy.” Rodriguez-Lopez, 565 F.3d at 315.

In reaching this decision, the Sixth Circuit affirmed the application of FRE 801(c)’s definition of hearsay as not encompassing evidence of conduct in order to show the actor’s belief, and then to use these beliefs as evidence of the truth for what the actors believed.