United States v. Rodriguez-LopezUnited States v. Rodriguez-Lopez
OPINION
The United States brings this interlocutory appeal to challenge the district court’s order excluding evidence of calls made to the defendant’s cellular telephone shortly after his arrest. The district court determined that the calls were hearsay under
I.
On October 13, 2006, an undercover Task Force Officer with the Drug Enforcement Administration (“DEA”) arranged to purchase heroin from Omar Robles-Manguia (“Robles”) in the parking lot of a suburban Louisville shopping center. When the officer arrived at the parking lot, he telephoned Robles. Robles asked the offi
Still at the arrest scene, Robles admitted that he had intended to sell approximately 56 grams of heroin to the officer for $9,000. He explained that the driver of the pick-up, Defendant-Appellee Francisco Rodriguez-Lopez (“Rodriguez”), had agreed to act as a lookout during the transaction and was to receive $4,000 of the proceeds. Special Agent Thomas 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 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.
Charged with one count of conspiring to distribute heroin, Rodriguez filed a motion
in limine
to exclude evidence of the phone calls. The district court agreed with Rodriguez that the calls were inadmissible hearsay and granted the motion. The government filed a timely Notice of Appeal and a Certification under
II.
Generally, we review a district court’s evidentiary rulings for abuse of discretion.
United States v. Guthrie,
As a general rule, hearsay is not admissible in federal courts.
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.”). 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 — absent some indication that the statements were actually code for something else — 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.
See United States v. Wright,
The district court held 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.” But the government did not offer the statements to prove the truth of those implicit assertions. Even 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.
To be sure, the government seeks to introduce the calls because they support an inference that Rodriguez was involved in dealing heroin. This inference, however, does not depend on the callers’ truthfulness, memory, or perception — the core credibility concerns that lie behind the hearsay rule.
See Williamson v. United States,
III.
Because we hold that evidence of the calls made to Rodriguez’s cell phone after his arrest does not constitute hearsay, we REVERSE the district court’s order excluding that evidence and REMAND for further proceedings not inconsistent with this opinion.