The Sixth Circuit case of United States v. Rodriguez-Lopez, _ F.3d _ (6th Cir. May 6, 2009) considered this hearsay puzzle: 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 Federal Rule of Evidence (FRE) 801(c) the statements were admissible as non-hearsay since the statements were not offered to prove the truth of the matter asserted.
Mr. Rodriguez-Lopez phone was ringing off the hook when DEA Agents decided to answer the phone. Each time the phone rang, according to DEA Agents, the caller requested heroin. The Sixth Circuit reversed the district court holding that the calls were inadmissible hearsay. Here is an example of the madness:
“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....And further on..."[t]he 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.”
This posting, at FederalEvidence.com has the Sixth Circuit's analysis regarding this hearsay issue. Federal Evidence.com is a handy collection of all things evidence including the evidence blog.
Getting back to the cell phone it begs the question: If the calls aren't offered for the truth of the matter asserted, then what would be the relevance of the statements under FRE 402 and 403. If the anonymous caller asked for a pizza instead of heroin, it wouldn't be relevant. Only because it shows propensity to commit the crime of delivery is it offered, and that is precisely why it is improper FRE 404(b) evidence and should not be permitted under FRE 403.
When doing investigation dealing with this type of evidence, make sure whether they can show the phone actually belongs to your client.