Federal Evidence Review

D.C. Circuit case confronted the issue whether the introduction of an alias at trial, which was connected to the defendant, is hearsay, in United States v. Maxwell Allen, 960 F.2d 1055 (D.C. Cir. 1992) (Per Curiam) (Nos. 91-3206, 91-3207)

Periodically, the courts have considered whether a name or alias may be admissible under the rule against hearsay. One example comes from the D.C. Circuit.

In the case, the defendants were prosecuted on drug charges following an investigation based on purchases of crack by an informant in a controlled buy and undercover agents. A search warrant was obtained and evidence of drug distribution was seized. During the search, defendant Casey was located in the basement. As noted in the decision, when Casey was found:

He blurted out, “I don’t know anything about any drugs,” but in the ceiling area above his head, the police found two large ziplock bags containing 94 smaller bags of crack rocks weighing a total of 9.5 grams. They also found $35 in loose currency, including the marked $20 bill the officers had used in the undercover buy just minutes earlier, and a wallet containing, among other things, an old dentist appointment card bearing the name “Whitcliff Rhoden.”

Allen, 960 F.2d at 1057. The defendants were convicted by the jury. On appeal, defendant Casey challenged the admission of the “testimony that he was also known as ‘Witcliff Rhoden’ was hearsay improperly admitted to connect him to the appointment card bearing that name found, along with the 9.5 grams of crack, in the bathroom ceiling.” Allen, 960 F.2d at 1059.

The D.C. Circuit affirmed the conviction and admission of the challenged testimony. In doing so the circuit noted that “evidence as to names is commonly regarded as either not hearsay because it is not introduced to prove the truth of the matter asserted, or so imbued with reliability because of the name’s common usage as to make any objection frivolous.” Allen, 960 F.2d at 1059 (citing United States v. May, 622 F.2d 1000, 1007 (9th Cir.) A] name, however learned, is not really testimonial. Rather, it is a bit of circumstantial evidence.”), cert. denied, 449 U.S. 984 (1980); other citations omitted). After noting the issue, the circuit concluded it was unnecessary to resolve it based on the facts of the case:

This may be one of the rare cases in which testimony regarding a name is hearsay—introduced to prove that James Casey does use the name Witcliff Rhoden—and is of disputable reliability. The record does not indicate the foundation for the testifying officers’ knowledge of Casey’s supposed alias, although it may well have been based on an admission by Casey, see Fed. R. Evid. 801(d)(2), or some other specific hearsay exception, and there are indications (albeit not discussed at trial) that the testimony was reliable. We need not resolve this issue, however, because even if admission of the testimony regarding Casey’s alias constituted error, it was undoubtedly harmless. Casey was found hiding alone in an unlit, unusable bathroom within a few feet of both a bag of drugs consistent in size and appearance with the bag he had in his waistband during the undercover buy just moments before and, even more damningly, the very $20 bill the police had given him during that buy. Compared to that, the testimony regarding his alias was trivial.

Allen, 960 F.2d at 1059 (footnote omitted).

As with other hearsay evidence, whether a name is admissible without violating the hearsay rule depends on the purpose for which the evidence is being introduced. While the D.C. Circuit did not need to resolve the issue, depending on the context, the use of a name to prove the truth of the matter asserted could be hearsay. See, e.g., United States v. Hinson, 585 F.3d 1328 (10th Cir. 2009) (in methamphetamine distribution trial, detective’s testimony about hearing defendant’s name mentioned by the cooperating witness as the supplier of the drugs in a controlled buy was inadmissible hearsay because it was offered for its truth that the defendant was a drug supplier and “was entirely unnecessary to explain the context of the police investigation” and “the only purpose … was to bolster the government’s claim that Hinson was, in fact, Pingry’s drug supplier”; the hearsay testimony was not plain error because it did not “affect the outcome” of the trial as the cooperating witness also testified that the defendant was his supplier which was corroborated by the evidence obtained during the controlled buy; consequently, the hearsay was unlikely to have had “any serious impact” on the conviction).

Some cases have recognized that the name may be admitted as circumstantial evidence. See, e.g., United States v. Snow, 517 F.2d 441, 443-44 (9th Cir. 1975) (defendant’s name on briefcase was a “mechanical trace,” providing circumstantial evidence of ownership). There are also non-hearsay purposes in which a name may be admitted. See, e.g., United States v. Al-Moayad, 545 F. 3d 139, 176 (2d Cir. 2008) (in trial involving the provision of material support to foreign terrorist organizations, address books of two men crossing the border listing the defendant’s name and phone number were admissible for the non-hearsay purpose to show the connection between the defendant and men); United States v. Goodchild, 25 F.3d 55, 61 (1st Cir. 1994) (credit card collections computerized memo noting contact with a woman who “referred the collections caller to a person by the name of Goodchild living in Alexandria, New Hampshire” was properly admitted as non-hearsay to show the circumstances of the investigation); United States v. Carillo, 20 F.3d 617, 619 (5th Cir. 1994) (“Out-of-court statements providing background information to explain the actions of investigators are not hearsay”; admission of the statement that a man named “Tito” was selling drugs was offered to explain why officer went to the location and approached Carrillo in the first place and not to prove that Carrillo was in fact selling drugs), cert. denied, 513 U.S. 901 (1994).