ORAL ARGUMENT NOT YET SCHEDULED

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_________________________________________________________________

No. xxxxxxxxxx

_________________________________________________________________

UNITED STATES OF AMERICA, Plaintiff-Appellee,

xxxxxxxxxxxxx, Defendant-Appellant.

_________________________________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

________________________________________________________________

BRIEF FOR APPELLANT

_________________________________________________________________

A.J. Kramer

Federal Public Defender

*Sandra G. Roland

Assistant Federal Public Defender

Counsel for Defendant-Appellant

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500

*Counsel for oral argument

District Court

Cr. No. xxxxxxxxxxxxx

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Pursuant to Circuit Rule 28(a)(1), Defendant-Appellant, xxxxxxxxxxxxxxx, hereby states as follows:

A. Parties and Amici:

The parties below and to this appeal are Defendant-Appellant, Winston K. xxxxx, and Plaintiff-Appellee, The United States of America. There are no intervenors or amici.

B. Rulings Under Review:

This is an appeal from the judgment of the district court (the Honorable John Garrett Penn), dated March 10, 1993, adjudging appellant guilty after a jury trial on the charge of possession with intent to distribute more than 50 grams of cocaine base in violation of 21 U.S.C. งง 841(a)(1) and 841(b)(1)(A)(iii). In this appeal, appellant seeks review of the district court's ruling made on September 29, 1993, admitting hearsay evidence of a non-testifying informant's out-of-court statements that someone in Washington, D.C. had supplied cocaine to the informant in the past, that that person arranged to supply cocaine to the informant on November 7, 1990 at 9th and Allison Streets, and that appellant was that person who arrived in a Toyota Cressida at 9th and Allison Streets on that date.

C. Related Cases:

There are no related cases and this case has not previously been before this Court.

TABLE OF CONTENTS

TABLE OF AUTHORITIES iii

STATUTES AND RULES 1

JURISDICTION 1

ISSUE PRESENTED 1

STATEMENT OF THE CASE 2

A. Proceedings Below 2

B. Statement Of Facts 2

i. The Seizure Of Cocaine Base 2

ii. The Informant And The Hearsay Testimony 3

a. Introduction 3

b. The Arguments Of Counsel And Trial Court's Ruling 4

c. The Hearsay Testimony 7

SUMMARY OF ARGUMENT 12

ARGUMENT

THE ADMISSION OF THE NON-TESTIFYING INFORMANT'S HEARSAY STATEMENTS, DESPITE THE TRIAL COURT'S IN LIMINE RULING EXCLUDING THE STATEMENTS, THAT APPELLANT WAS THE INFORMANT'S COCAINE SUPPLIER, WHO HAD ARRANGED TO SUPPLY COCAINE TO THE INFORMANT ON THE DAY OF THE ARREST, VIOLATED THE RULE AGAINST HEARSAY AND THE

CONFRONTATION CLAUSE 13

A. Standard Of Review 13

B. The Informant's Prejudicial Out-Of-Court Statements Were Hearsay, Were Admitted To Prove The Truth Of The Statements, And Were Not

"Background" Evidence 14

C. Admission Of The Informant's Out-Of-Court Statements Violated The Confrontation Clause Of

The Sixth Amendment 26

CONCLUSION 30

CERTIFICATE OF LENGTH 31

CERTIFICATE OF SERVICE 31

TABLE OF AUTHORITIES

CASES

Anderson v. United States,

417 U.S. 211 (1974) 14

Berger v. California,

393 U.S. 314 (1969) 14, 26, 30

California v. Green,

399 U.S. 149 (1970) 27

Chapman v. California,

386 U.S. 18 (1967) 14, 30

*Idaho v. Wright,

497 U.S. 805 (1990) 26, 28, 29

Johnson v. State,

587 A.2d 444 (Del. 1991) 17

Martinez v. Sullivan,

881 F.2d 921 (10th Cir. 1989),

cert. denied, 493 U.S. 1029 (1990) 13

*Ohio v. xxxxxxx,

448 U.S. 56 (1980) passim

Pointer v. Texas,

380 U.S. 400 (1965) 30

State v. Hardy,

354 N.W.2d 21 (Minn. 1984) 17

State v. Lowrie,

542 P.2d 128 (Wash. 1975) 17, 20

State v. Rowe,

843 P.2d 714 (Kan. 1992) 17

Stewart v. Cowan,

528 F.2d 79 (6th Cir. 1976) 30

United States v. Brown,

767 F.2d 1078 (4th Cir. 1985) 16

____________________________

* Authorities principally relied upon are marked with an asterisk.

United States v. Brown,

921 F.2d 1304 (D.C. Cir. 1990) 12, 14, 25

United States v. Boulahanis,

677 F.2d 586 (7th Cir.),

cert. denied, 459 U.S. 1016 (1982) 28, 29

United States v. Clarke,

24 F.3d 257 (D.C. Cir. 1994) 13, 19

United States v. Dean,

980 F.2d 1286 (9th Cir. 1992) 17, 20, 29

United States v. Figueroa,

750 F.2d 232 (2d Cir. 1984) 16

United States v. Foster,

982 F.2d 551 (D.C. Cir. 1993) 24

United States v. Freeman,

514 F.2d 1314 (D.C. Cir. 1975),

vacated on other grounds, 598 F.2d 306 (1979) 19, 22

United States v. Freeman,

816 F.2d 558 (10th Cir. 1987) 16

United States v. Gaeta,

14 M.J. 383 (1983) 17

United States v. Gomez,

529 F.2d 412 (5th Cir. 1976) 17

United States v. Hawkins,

905 F.2d 1489 (11th Cir. 1990),

cert. denied, 498 U.S. 1038 (1991) 16

United States v. Hernandez,

750 F.2d 1256 (5th Cir. 1985) 16, 25

*United States v. Hilliard,

569 F.2d 143 (D.C. Cir. 1977) 12, 18, 19, 20

United States v. Hooks,

848 F.2d 785 (7th Cir. 1988) 28

United States v. Johnson,

934 F.2d 936 (8th Cir. 1991) 16, 20

United States v. Jordan,

810 F.2d 262 (D.C. Cir. 1987) 12, 14, 15

United States v. Kang,

934 F.2d 621 (5th Cir. 1991) 24

United States v. Lamberty,

778 F.2d 59 (1st Cir. 1985) 17, 20

United States v. Love,

767 F.2d 1052 (4th Cir. 1985),

cert. denied, 474 U.S. 1081 (1986) 16

United States v. Mancillas,

580 F.2d 1301 (7th Cir.),

cert. denied, 439 U.S. 958 (1978) 17

United States v. Mejia,

909 F.2d 242 (7th Cir. 1990) 16

United States v. Mitchell,

No. 94-3003 (D.C. Cir. March 28, 1995),

cert. denied, 481 U.S. 1032 (1987) 13

United States v. Pulley,

922 F.2d 1283 (6th Cir.),

cert. denied, 502 U.S. 815 (1991) 16

United States v. Reyes,

18 F.3d 65 (2d Cir. 1994) 16

United States v. Seijo,

595 F.2d 116 (2d Cir. 1979) 27

United States v. Taylor,

900 F.2d 779 (4th Cir. 1990) 17, 20

United States v. Vizcarra-Porras,

889 F.2d 1435 (5th Cir. 1989),

cert. denied, 495 U.S. 940 (1990) 16

United States v. Watkins,

519 F.2d 294 (D.C. Cir. 1975) 24

United States v. Winn,

767 F.2d 527 (9th Cir. 1985) 27

STATUTES AND RULES

21 U.S.C. ง 841(a)(1) 2, 3

21 U.S.C. ง 841(b)(1)(A)(iii) 2, 3

Fed. R. Evid. 801(c) 14

Fed. R. Evid. 802 14

MISCELLANEOUS

2 McCormick, On Evidence งง 245, 249 (4th ed. 1992) 14, 17

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_______________________________________________________

No. xxxxxxxxxx

_________________________________________________________

UNITED STATES OF AMERICA, Plaintiff-Appellee,

WINSTON K. xxxxx, Defendant-Appellant.

_____________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_____________________________________________

BRIEF FOR DEFENDANT-APPELLANT

WINSTON K. xxxxx

_____________________________________________

STATUTES AND RULES

Pursuant to Rule 28(f), Federal Rules of Appellate Procedure and D.C. Circuit Rule 28(a)(5), the pertinent statutes and rules are set forth in the Addendum to this brief.

JURISDICTION

The District Court had jurisdiction under 18 U.S.C. ง 3231. A timely notice of appeal having been filed within the ten-day period of Rule 4(b), Federal Rules of Appellate Procedure, this Court has jurisdiction under 28 U.S.C. ง 1291.

ISSUE PRESENTED

Whether the introduction of a police informant's out-of-court statements accusing appellant of being the informant's drug supplier, and the prosecutor's subsequent use of the statements for their truth, violated the rule against hearsay and the Sixth Amendment's Confrontation Clause where the informant was not present for cross-examination because the government deported him.

STATEMENT OF THE CASE

A. Proceedings Below

On November 27, 1990, a grand jury returned a one-count indictment charging Winston xxxxx with possession with intent to distribute more than 50 grams of cocaine base in violation of 21 U.S.C. งง 841(a)(1) and 841(b)(1)(A)(iii). Mr. xxxxx's case was heard by a jury commencing on September 29, 1992, before the Honorable John Garrett Penn. The jury returned a verdict of guilty on September 30, 1992. On March 10, 1993, Mr. xxxxx was sentenced to 121 months imprisonment to be followed by five years of supervised release (A. at 6). Mr. xxxxx filed a timely notice of appeal.

B. Statement Of Facts

i. The Seizure Of Cocaine Base

On November 7, 1990, at approximately 5:30 p.m., based on a tip from an informant, police officers and federal agents stopped Winston xxxxx in his car at the corner of 9th and Allison Streets, N.W. (9/29A at 5, 8, 12; 9/29B at 4). The officers discovered 69.35 grams of cocaine base packaged in three plastic bags under the front seat of the car that Mr. xxxxx drove (9/29B at 12; 9/30 at 52). One of the three plastic bags was "sticking out just beyond the driver's seat on the floorboard" (9/29B at 12). Car repair orders for the Toyota Cressida bearing the name "Winston xxxxx," and a vehicle registration bearing the names "Delores xxxxxl" and "Winston xxxxx" were found in the glove compartment (9/29B at 15, 20-22; 9/30 at 11). A "drug expert," David Stroud, testified that the packaging of the drugs was consistent with an intent to distribute (9/30 at 62).

ii. The Informant And The Hearsay Testimony

a. Introduction

The informant, Patrick xxxxxxx, had been arrested the day before, on November 6, 1990, in Frederick, Maryland, for an immigration offense (9/29A at 2). Mr. xxxxxxx did not testify at Mr. xxxxx's trial because, although the Immigration and Naturalization Service had the power and authority to keep him in the country during the pendency of this case (9/29A at 40), he had been deported by the government to Jamaica prior to this trial (9/29 at 110; 9/29A at 14, 39). Despite Mr. xxxxxxx' absence, the government introduced evidence of Mr. xxxxxxx' allegations against Mr. xxxxx through the hearsay testimony of two law enforcement officers, INS Agent John Fleming and DEA Special Agent Donald Barnes.

b. The Arguments Of Counsel And Trial Court's Ruling

Before opening statements, the prosecutor sought permission from the trial court to have an officer testify about the officer's interactions with the informant in order to give the jury a "little of the flavor" and "a little bit of the background" of the case so that the jury would "understand why the car was stopped" (9/29 at 65). The prosecutor explained the "flavor" he sought to inject (9/29 at 66-67):

. . . I want to introduce the fact that the informant was arrested the night before, that he agreed to cooperate with the police, and that he agreed to help them -- he advised the police that he was a drug dealer, and that he agreed to help them arrest -- or build a case against his supplier. And that he did make phone calls -- I won't have anybody testify as to what the defendant allegedly said in the telephone calls, because I don't have anybody who participated in the phone calls -- but I would like to have somebody testify about the phone calls taking place, because I have people who witnessed the phone calls taking place, at least from the informant's end of it, and then about the fact that they met -- the defendant met the informant, the informant signalled the police, and the defendant was arrested.

The defense attorney objected that any testimony by the officers about conversations involving the informant would be inadmissible hearsay, and specifically objected to any hearsay testimony that the officers understood "that Mr. xxxxx was the person that the informant was meeting for a drug transaction" (9/29 at 69), since such testimony would be "direct[ed] to the truth of the matter asserted, i.e., he's the guy with the drugs, not for the fact that it was said. . . That's the heart of the case" (9/29 at 70, 86). Defense counsel agreed, however, that officers could testify that the informant had been arrested and had agreed to cooperate, and that the officers observed the informant make telephone calls (9/29 at 66-68, 70, 74, 75).

The prejudicial hearsay nature of the proposed evidence was immediately apparent to the district court (9/29 at 67):

Well, one concern I have . . . is that you said he agreed to build a case against his supplier, which it seems to me, that he's -- that is testimony that Mr. xxxxx was his supplier. How do you propose to handle that? If the officer should say that the informant agreed to build a case against his supplier, and he purportedly makes a call to Mr. xxxxx, isn't that in effect hearsay evidence that Mr. xxxxx is his supplier?

In addition, the district court rejected the prosecutor's suggestion (9/29 at 69) that an officer should be permitted to testify that the informant told the police that Mr. xxxxx was the person who would meet him with drugs in hand (id.): "I guess the matter that gives me concern there is that that's testimony, in effect, that Mr. xxxxx is the guy who's dealing in drugs. That's what the witness would be saying. That's what the informant would be saying through the officer."

After much discussion, the district court ruled that "[I] would sustain the objection, if you are offering evidence which in effect is hearsay evidence that Mr. xxxxx is involved in drugs or the informant is saying that" (9/29 at 70). The court specifically ruled that the officer would not be permitted to testify that the informant intended to meet with Mr. xxxxx for the purpose of a drug transaction, noting that the problem was "a very difficult area . . . because . . . we have an informant who is in effect saying that Mr. xxxxx is a drug dealer, and there's no way [defense counsel] can cross-examine that informant" (9/29 at 71). In addition, the court specifically instructed the prosecutor to caution the testifying officers that they should not "conveniently volunteer" (9/29 at 91-92) any testimony about what the informant had said about Mr. xxxxx's involvement with drugs (id.).

The district ruled that an officer could testify that the informant had been arrested, that the informant placed two telephone calls, that he received two telephone calls, that during the telephone conversations the officer heard the informant say the words "Winston," "twenty minutes," and "9th and Allison,"⁽⁵⁾ and that the informant signalled the police (9/29 at 70, 91), "[a]s long as it doesn't refer to what the witness may have said to the officer" since if "the witness is saying to the officer, 'This is the guy I'm dealing with or this is the fellow dealing the drugs' or whatever like that, that's hearsay" (9/29 at 71, 74-75).

c. The Hearsay Testimony

The jury heard the following information about the informant, Patrick xxxxxxx: Mr. xxxxxxx was accused, by another confidential informant, of being a "crack dealer" in Frederick, Maryland (9/29A at 2-3). Mr. xxxxxxx was arrested on an immigration charge on November 6, 1990, at which time he provided false information to the police about his citizenship and his birthplace (9/29A at 3-4).

The day after his arrest, November 7, 1990, Mr. xxxxxxx agreed to cooperate with the police as an informant (9/29A at 4-5). To begin his cooperation, the informant paged someone on the telephone and, a few minutes later, received a call back from someone (9/29A at 5). Agent John Fleming, who stood next to the informant during the conversation, heard the informant say the name "Winston" (9/29A at 6). After the conversation, the informant was brought to the Fourth District police station in Washington, D.C. (9/29 at 6-7). At approximately 5:00 p.m., the informant paged someone from a pay phone at the police station and received a call back (9/29A at 7-8). During the conversation, Agent Fleming heard the informant say the name "Winston" and the phrases "9th and Allison" and "twenty minutes" (9/29A at 8). The agents and officers escorted the informant to the corner of 9th and Allison Streets, N.W. (id.). The informant was instructed to stand on the corner, and to remove his baseball cap to "indicate that the intended target vehicle was approaching" (9/29A at 9). He did so. Mr. xxxxx's car was stopped and Mr. xxxxx was arrested.

The prosecutor asked Agent Fleming (id.):

Q. Now, what was your understanding as to the reason why Mr. xxxxxxx was meeting this other individual?

A. To set up a drug transaction.

Q. Was Mr. xxxxxxx to be the seller or the buyer?

A. Mr. xxxxxxx was to be the buyer.

Q. Now, calling your attention -- well withdrawn. You testified about a signal that Mr. xxxxxxx was to give to you when the seller arrived; is that right?

A. That's correct.

The prosecutor's questioning of Special Agent Barnes went even further (9/29B at 5-10):

Q. And do you know why Mr. xxxxxxx was brought down to the Fourth District?

A. Yes, to purchase cocaine from a source of supply in Washington, D.C.

* * *

Q. Can you explain to the jury what happened after he arrived at the Fourth District?

A. Okay, when the cooperating -- well, Mr. xxxxxxx arrived at the Fourth District. He was told to contact his source of supply as prearranged. He went to a pay phone, where he paged an individual, and that individual paged him back, and the meet was set up for 9th and Allison Streets.

Q. Let me stop you for a second now. You refer to a source of supply?

A. Yes.

Q. What do you mean by that?

A. A source of supply would be the person -- the person that he received his cocaine -- his crack cocaine from in Washington, D.C. to take back to Frederick, Maryland to sell.

* * *

Q. And you said he was going to arrange to meet with a source of supply?

A. Right.

Q. In connection with your meeting, was there any type of signal that was arranged for Mr. xxxxxxx to use when his supplier showed up?

A. Yes, sir, once everything was put into place as far as the location, the time, and the possible suspect, Mr. xxxxxxx was told to take his hat off when he could identify the source of supply arriving at that location.

* * *

Q. About what time was it that Mr. xxxxxxx made that phone call from the 4th District?

A. The phone call was made at approximately 5:00 o'clock that evening. Again, the information was that he was going to be contacted and given crack cocaine at that intersection, which was Allison and 9th Street, in approximately twenty minutes, and he described three type vehicles that the source of supply would arrive in.

* * *

Q. So you received information that the defendant -- that the supplier was going to arrive in one of three cars?

A. Yes, I did.

* * *

Q. Prior to when Mr. xxxxxxx was placed at 9th and Allison, had you instructed him as to how close he was to get to his supplier's vehicle when the vehicle pulled up?

A. Yes.

* * *

Q. Now, after the car pulled up, the defendant pulled up in that Toyota Cressida, what happened?

A. The -- well, Mr. xxxxx was driving that vehicle. It passed us on surveillance, it drove up 9th Street to the corner, where our criminal informant, Mr. xxxxxxx, was standing at the corner of Allison and 9th Street. It pulled up to Mr. xxxxxxx, Mr. xxxxxxx took his hat off, which was the signal that it was his source of supply, and then we drove up on the car.

The informant's accusations against Mr. xxxxx were the highlight of the prosecutor's closing argument. The prosecutor began (9/30 at 94-99):

So what the police did was, while still in Frederick, Maryland, they arranged to have Mr. xxxxxxx call the beeper number of the person who distributed cocaine to him.

* * *

So, anyway, we have this short [telephone] conversation which took place, where Mr. xxxxxxx said the name Winston when he was speaking with his supplier.

Now, after that, the police arranged to have Mr. xxxxxxx come into Washington, D.C., because they wanted him to attempt to make a purchase from his supplier, and you can infer that his supplier's name was Winston. . . . . And what did he do? He paged his supplier again.

Within a couple of minutes, the supplier called back.

* * *

Now, prior to this conversation, the police had met with Mr. xxxxxxx, and they had agreed -- or they had worked out an arrangement with him, where, as a signal to the police, when he was out on the street and his supplier showed up, he would take off his baseball cap, and this way the undercover agents could move in, they would know that the person who had pulled up was that supplier.

* * *

Now, the testimony also established through Agent Barnes that when the defendant's vehicle pulled up into the intersection, that Mr. xxxxxxx, as he was told to do, raised up his hat. He gave the signal to police that the drug dealer, his supplier, had arrived on the scene.

In rebuttal closing argument, the prosecutor touched on his theme again (9/30 at 116):

Now with respect to the fingerprints, [defense counsel] says the police should have fingerprinted the drugs. . . But this is a case where there was one person in the car, his name was Winston, the police knew that the supplier's name was Winston, and when he showed up, they knew he was coming to make a drug deal, and when he showed up, the drugs were right by his feet.

SUMMARY OF ARGUMENT

The informant's out-of-court statements were hearsay admitted for the truth of the matter, that is, that someone in Washington, D.C. had supplied cocaine to Mr. xxxxxxx in the past, that that person arranged to supply cocaine to Mr. xxxxxxx on November 7, 1990 at 9th and Allison Streets, and that the person who drove the Toyota Cressida to 9th and Allison Streets (Mr. xxxxx) was Mr. xxxxxxx' cocaine supplier. United States v. Brown, 921 F.2d 1304, 1307 (D.C. Cir. 1990); United States v. Jordan, 810 F.2d 262, 264 (D.C. Cir. 1987). The statements were not admitted for the non-hearsay purpose of establishing the "background" of the officers' conduct, United States v. Hilliard, 569 F.2d 143 (D.C. Cir. 1977), as is demonstrated by the prosecutor's use of the statements to prove their truth. The informant's accusations prejudiced Mr. xxxxx because they directly implicated him in the crime charged and linked him to inadmissible prior bad acts.

The admission of the informant's hearsay statements also violated the Sixth Amendment's Confrontation Clause. The statements were inadmissible under the Confrontation Clause both because the declarant was not shown to be unavailable and because they did not carry any "particularized guarantee of trustworthiness." Ohio v. xxxxxxx, 448 U.S. 56, 66 (1980).

ARGUMENT

A. Standard Of Review

The admission of evidence in violation of the rule against hearsay is reviewed for an abuse of discretion. United States v. Clarke, 24 F.3d 257 (D.C. Cir. 1994). The admission of evidence in violation of the Sixth Amendment's Confrontation Clause is reviewed de novo. Martinez v. Sullivan, 881 F.2d 921 (10th Cir. 1989), cert. denied, 493 U.S. 1029 (1990). If the admission of the evidence was erroneous, Mr. xxxxx's conviction must be reversed unless the government establishes that the error was harmless beyond a reasonable doubt. United States v. Mitchell, No. 94-3003, slip op. at 16 (D.C. Cir. March 28, 1995) ("because admission of hearsay implicates the Sixth Amendment's Confrontation Clause, errors must be harmless beyond a reasonable doubt") (citing United States v. Jordan, 810 F.2d 262, 264 (D.C. Cir.), cert. denied, 481 U.S. 1032 (1987)); Chapman v. California, 386 U.S. 18, 24 (1967).

B. The Informant's Prejudicial Out-Of-Court Statements Were Hearsay, Were Admitted To Prove The Truth Of The Statements, And Were Not "Background" Evidence.

In its definition of hearsay, Federal Rule of Evidence 801(c) restates the common law principle that hearsay is an out-of-court statement offered to prove the truth of the matter asserted, thus resting for its value on the credibility of the out-of-court declarant. Fed. R. Evid. 801(c); Ohio v. xxxxxxx, 448 at 62 n. 4 (1980) (citation omitted). Hearsay evidence is considered inherently unreliable because the statement was not subject to the courtroom safeguards of oath, and because of the lack of any opportunity to observe and confront the declarant. See McCormick, Law of Evidence ง 245, at 582 (2d ed. E. Cleary 1972); Anderson v. United States, 417 U.S. 211, 220 (1974). Thus, hearsay is inadmissible unless the evidence falls within a recognized exception under the Federal Rules Of Evidence. Fed. R. Evid. 802.

There is no question but that both Agent Fleming's and Special Agent Barnes' testimony contained hearsay. United States v. Brown, 921 F.2d 1304, 1307 (D.C. Cir. 1990) (officer's testimony that he had been told that defendant and informant had had previous dealings of PCP was "classic" inadmissible hearsay); Jordan, 810 F.2d at 264 (officers' testimony that informant said sample bottle of PCP came from defendant, that informant said defendant would bring another person to planned sale, that informant said defendant received money from transaction, and recounting details of planned deal based on informant's information, was hearsay).

Agent Fleming's testimony that "the reason why Mr. xxxxxxx was meeting this other individual" was "to set up a drug transaction" in which Mr. xxxxxxx would buy drugs from the other individual was hearsay (9/29A at 9). Special Agent Barnes' testimony involved five separate hearsay statements: 1) that the informant bought his cocaine from a source in the District of Columbia to take back for sale in Frederick, Maryland (9/29B at 5-6); 2) that the informant made calls to arrange to buy drugs from his "source of supply" (9/29B at 6); 3) that when the informant was brought to Washington, D.C. he intended to purchase cocaine from his source of supply in the District (9/29B at 6, 7); 4) that the person who would arrive in a car at 9th and Allison Streets would be the informant's "source of supply" (9/29B at 7, 8); and 5) that the person who did arrive at 9th and Allison Streets was the informant's "source of supply" (9/29B at 10).

Fleming's and Barnes' hearsay testimony cannot be excused as mere "background" evidence, admitted to show only that the officers had a legitimate reason to stop Mr. xxxxx's car but not admitted for the truth of the statements. Although some courts have permitted the use of so-called "background" testimony, several courts have rejected, questioned, or limited the use of such testimony. The use of "background" testimony has been criticized as subject to "widespread abuse." 2 McCormick, On Evidence ง 249, at 104 (4th ed. 1992):

[O]ne area of apparently widespread abuse should be noted. In criminal cases, an arresting or investigating officer should not be put in the false position of seeming just to have happened upon the scene; he should be allowed some explanation of his presence and conduct. His testimony that he acted "upon information received," or words to that effect, should be sufficient. However, cases abound in which the officer is allowed to relate historical aspects of the case, replete with hearsay statements in the form of complaints and reports, on the ground that he was entitled to give the information upon which he acted. The need for the evidence is slight, the likelihood of misuse is great.

This Court specifically rejected the use of hearsay "background" evidence in United States v. Hilliard, 569 F.2d 143 (D.C. Cir. 1977). In Hilliard, the indictment charged that Mr. Hilliard, also known as "Meatball," robbed a postal employee. Although no direct evidence about whether witnesses had named the defendant as the perpetrator was presented, the government and its officer witnesses insinuated that witnesses to the robbery had named the defendant as the perpetrator and had said that the perpetrator was nicknamed "Meatball." Id. at 144. For example, the prosecutor questioned the officer about how the defendant's photograph came to be included in the photo array:

Q. Had you received any information that caused you to add photographs to the book?

A. Yes, sir I did.

Q. What did you receive?

A. I had learned from speaking with Inspector Thomas of the U.S. Postal Service --

Q. Just tell us what you learned.

A. I learned there was a suspect.

Q. Who was that?

A. Dimitric Hilliard.

Q. What did you do with the results of the knowledge you obtained?

A. I obtained a photograph --

Id. On appeal, the government defended the testimony by arguing it was not hearsay because it was merely "background" evidence -- it "was offered merely to explain why the police took the action they did in placing appellant's picture in the photographic array." Id. at 146. This Court reversed the conviction, holding: "We reject this argument. There was no issue as to the presence of Hilliard's picture in the array, and therefore no occasion for any explanation. In an event, explanation of a photographic array cannot be allowed to repeal the hearsay rule." Id. (emphasis added). Compare also Clarke, 24 F.3d 257, 267 (D.C. Cir. 1994) (admission of police "background" testimony "questionable," but harmless); United States v. Freeman, 514 F.2d 1314, 1317 (D.C. Cir. 1975), (officer's testimony that witnesses to robbery said that one of robber's was "Dickie" was inadmissible hearsay, not admissible to show why police went to defendant's house since hearsay "problem could have been avoided entirely simply by restricting the officer's testimony to a statement that he received certain information leading him to the address"), vacated on other grounds, 598 F.2d 306 (1979).

The out-of-court accusations and insinuations were even less subtle here than in Hilliard, and where exploited to a much greater degree. In Hilliard, this Court found that "[t]he inevitable result of the prosecutor's repeated questions and references to Meatball and the suspect discovered by the investigation was to splash the defendant with damaging matter that was not in evidence." Hilliard, 569 F.2d at 146. Here, appellant was virtually drowned in the informant's damaging out-of-court accusations; the prosecutor's and witnesses' focus on the informant's accusations was relentless. Since appellant never suggested to the jury that the officers had no reason to stop his car (or that the stop was an abuse of police power or an unfair investigatory technique), it cannot seriously be argued here that Fleming's and Barnes' testimony merely served the non-hearsay purpose of explaining that the officers had a legitimate reason to stop Mr. xxxxx's car. As in Hilliard, there was simply "no occasion for any explanation." 569 F.2d at 146. See n. 12, supra, at p. 15-16 (citing Dean, 980 F.2d at 1288; Taylor, 900 F.2d at 782; Lamberty, 778 F.2d at 61; Johnson, 587 A.2d at 450; Lowrie, 542 P.2d at 131). Rather, the informant's statements were admitted to prove the truth of the matter, that is, that someone in Washington, D.C. had supplied cocaine to Mr. xxxxxxx in the past, that that person arranged to supply cocaine to Mr. xxxxxxx on November 7, 1990 at 9th and Allison Streets, and that the person who drove the Toyota Cressida to 9th and Allison Streets (Mr. xxxxx) that person.

In any event, the prosecutor's questions and the officers' testimony went far beyond what was necessary to legitimately explain the background of the stop. An explanation that the officers had a legitimate reason to stop the car did not require Special Agent Barnes to testify:

* that Mr. xxxxxxx was brought to the Fourth District police station "to purchase cocaine from a source of supply in Washington, D.C." (9/29B at 5);

* that Mr. xxxxxxx "was told to contact his source of supply as prearranged" (9/29B at 6);

* that "[a] source of supply would be the person that [Mr. xxxxxxx] received his cocaine . . . from in Washington, D.C. to take back to Frederick, Maryland to sell" (9/29B at 6);

* that Mr. xxxxxxx was told to use a signal "when he could identify the source of supply arriving at that location" (9/29B at 7);

* that "the information was that [Mr. xxxxxxx] was going to be contacted and given crack cocaine at that intersection" (9/29B at 7);

* that Mr. xxxxxxx "described three type of vehicles that the source of supply would arrive in" (9/29B at 7);

* that Mr. xxxxxxx gave a signal when Mr. xxxxx arrived "which was the signal that it was his source of supply" (9/29B at 10).

It did not require the prosecutor to ask Special Agent Barnes:

* whether Barnes knew "why Mr. xxxxxxx was brought down to the Fourth District" (9/29B at 5)

* what Barnes meant by the term "source of supply" (9/29B at 6);

* whether the officer had designed a signal "for Mr. xxxxxxx to use when his supplier showed up" (9/29B at 6);

* whether Barnes had "instructed [Mr. xxxxxxx] as to how close he was to get to his supplier's vehicle when the vehicle pulled up" (9/29B at 8).

* to agree with the prosecutor's statement that Mr. xxxxxxx "was going to arrange to meet with a source of supply" (9/29B at 6); and

* to agree with the prosecutor's statement that Barnes "received information that the defendant -- that the supplier was going to arrive in one of three cars" (9/29B at 8);

Nor did it require the following questions of Agent Fleming (9/29 at 9):

Q. Now, what was your understanding as to the reason why Mr. xxxxxxx was meeting this other individual?

A. To set up a drug transaction.

Q. Was Mr. xxxxxxx to be the seller or the buyer?

A. Mr. xxxxxxx was to be the buyer.

Q. Now, calling your attention -- well withdrawn. You testified about a signal that Mr. xxxxxxx was to give to you when the seller arrived; is that right?

A. That's correct.

Finally, the real purpose of the testimony became crystal clear during the prosecutor's "subsequent exploitation of the testimony which went much beyond merely filling in the gaps in the police account. Freeman, 514 F.2d at 1317. Not once in his closing argument did the prosecutor use the informant's out-of-court statements to explain that the officer's did not act in a vacuum when they stopped Mr. xxxxx's car. Rather, he used the informant's accusations for their truth and made them the centerpiece of his closing argument.

He told the jury that the informant talked on the phone with "the person who distributed cocaine to him" (9/30 at 94) and that during the call he "said the name Winston when he was speaking with his supplier" (id.). He explained to the jury that the police brought the informant to Washington, D.C. because "they wanted him to attempt to make a purchase from his supplier, and you can infer that his supplier's name was Winston" (id.). He argued that the informant "paged his supplier again" and that "the supplier called back" (9/30 at 95). He explained that the informant had agreed to signal the police when his supplier arrived: "[W]hen he was out on the street and his supplier showed up, he would take off his baseball cap, and this way the undercover agents could move in, they would know that the person who had pulled up was that supplier" (id.). He flat-out told the jury that the informant signaled the police that Mr. xxxxx was the supplier: "[W]hen the defendant's vehicle pulled up into the intersection . . . Mr. xxxxxxx, as he was told to do, raised up his hat. He gave the signal to police that the drug dealer, his supplier, had arrived on the scene" (9/30 at 99) (emphasis added). Indeed, in eight and one half pages of closing argument, five pages were dedicated to a discussion of Patrick xxxxxxx and his accusations against Mr. xxxxx (9/30 at 94, 95, 96, 97, 98 (partial), 99 (partial)).

The prosecutor's use of the informant's out-of-court accusations is especially unjustifiable given the trial court's specific admonitions to the prosecutor not to elicit them. The trial judge considered the prosecutor's need for "background" evidence and the terrific prejudice to the defendant presented by the evidence. Ultimately, he carefully crafted a ruling that allowed the prosecutor to explain that Mr. xxxxx's car was legitimately stopped, but protected Mr. xxxxx from the prejudice of Patrick xxxxxxx' damning accusations. See supra, at p. 6. The prosecutor apparently ignored the judge's ruling.

The prejudice to appellant is obvious. The informant's out-of-court accusations, and the prosecutor's use of them, directly implicated Mr. xxxxx in the crime charged, possession with the intent to distribute cocaine base, and also linked Mr. xxxxx to inadmissible prior bad acts. See United States v. Foster, 982 F.2d 551 (D.C. Cir. 1993) (reversing where prosecutor improperly suggested in closing argument that the government had evidence of prior drug dealing). The informant's accusations that Mr. xxxxx had possessed and distributed drugs in the past, and that he arranged to possess and distribute them on November 7, 1990, cut right to the heart of the central elements of the crime of possession of narcotics with the intent to distribute. The informant's accusations were particularly prejudicial because Mr. xxxxx was charged with constructive possession of the drugs. See United States v. Watkins, 519 F.2d 294, 298 (D.C. Cir. 1975) (describing constructive possession as "a thicket of subjectivity") (quoting United States v. Holland, 445 F.2d 701, 703 (D.C. Cir. 1971) (Tamm, J., concurring).

It would appear that the prosecutor considered the informant's out-of-court accusations essential to make his case; surely he would not have built his case around them otherwise. As the Fifth Circuit has observed in a case in which the government introduced hearsay evidence and then argued it for its truth in summation:

We understand the temptation for the prosecutor; it is difficult to lay aside so potent a weapon. But we do not say this to forgive the error. To the contrary. That the prosecutor succumbed is a testament to the force of the poison he reached for. He thought it was effective and needed to make his case, or he would not have made the argument. Such lack of discipline wins battles and loses wars. It is a losing argument.

United States v. Kang, 934 F.2d 621, 627 (5th Cir. 1991).

Furthermore, the jury naturally would understand the testimony as speaking to the heart of the case: as proof that Mr. xxxxx was a drug dealer who possessed and distributed cocaine in the past, that Mr. xxxxx arranged with Mr. xxxxxxx to possess and to distribute cocaine on November 7, 1990, and that Mr. xxxxx arrived at 9th and Allison Streets with that purpose. Indeed, in the absence of any limiting instruction, and given the sheer amount of the hearsay testimony, the jury could draw no other conclusion.

If by chance the jury was blind to the import of the testimony, the prosecutor hammered it home during his closing argument. The combined effect of the admission of the hearsay evidence and the prosecutor's improper use of the evidence in closing argument prejudiced Mr. xxxxx's substantial right to a fair trial. Compare Brown, 921 F.2d at 1308 (hearsay evidence harmless because it was "small part" of evidence, government did not exploit evidence, and remainder of evidence was very substantial) (citing United States v. Hernandez, 750 F.2d 1256 (5th Cir. 1985) (reversing conviction in part because prosecutor's closing argument emphasized inadmissible evidence)). Therefore, the erroneous admission of this evidence was prejudicial and requires that Mr. xxxxx's conviction be reversed.

C. Admission Of The Informant's Out-Of-Court Statements Violated The Confrontation Clause Of The Sixth Amendment.

The admission of the informant's hearsay statements against Mr. xxxxx violated the Sixth Amendment's Confrontation Clause.⁽¹³⁾ The role of confrontation to test the accuracy of evidence is so important "that the absence of confrontation at trial calls into question the ultimate integrity of the fact-finding process." Ohio v. xxxxxxx, 448 U.S. 56, 64 (1980) (quoting Chambers v. Mississippi, 410 U.S. 284, 295 (1973), and Berger v. California, 393 U.S. 314, 315 (1969)).

Hearsay statements must be excluded under the Confrontation Clause unless they can meet two tests: First, the declarant must be shown to have been unavailable. Second, where the statements "do not fall within a firmly rooted hearsay exception, they are 'presumptively unreliable and inadmissible for Confrontation Clause purposes,'" Idaho v. Wright, 497 U.S. 805, 818 (1990) (quoting Lee v. Illinois, 476 U.S. 530, 543 (1986)), and "must be excluded, at least absent a showing of particularized guarantees of trustworthiness." Wright, 497 U.S. at 818 (quoting xxxxxxx, 448 U.S. at 66). The informant's hearsay accusations meet neither of these tests.

First, the government made no showing that the informant was unavailable, or that the authorities tried to obtain his presence for trial. "[A] witness is not 'unavailable' for purposes of the . . . exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial." xxxxxxx, 448 U.S. at 74 (quoting Barber v. Page, 390 U.S. 719, 724-725 (1968)). "The lengths to which the prosecution must go to produce a witness . . . is a question of reasonableness." Id. at 74 (quoting California v. Green, 399 U.S. 149, 189 n. 22 (1970) (Harlan, J., concurring)). The government bears the burden of proving that "the witness is unavailable despite good-faith efforts undertaken prior to trial to locate and present that witness." Id. at 74-75. Apparently, Patrick xxxxxxx was not called to testify at Mr. xxxxx's trial because sometime after Mr. xxxxx's arrest the government deported xxxxxxx from the country (9/29 at 110; 9/29A at 14, 39). INS Agent Fleming testified, however, that the INS had the power and the authority to keep a witness who is subject to deportation in the country during the pendency of a criminal case (9/29A at 40). Because the government failed to do so, or to even attempt to do so, the witness was not "unavailable" for purposes of the Confrontation Clause. Cf. United States v. Winn, 767 F.2d 527, 530 (9th Cir. 1985) (unavailability established where witnesses deported after government decided not to prosecute defendant for smuggling illegal aliens, but before defendant arrested again for same crime and then prosecuted); United States v. Seijo, 595 F.2d 116, 117 (2d Cir. 1979) (unavailability established where government went to great lengths to prevent deportation of illegal alien witnesses or to have them detained as material witnesses).

Second, the informant's statements did not carry any "particularized guarantee of trustworthiness." Particularized guarantees of trustworthiness "include only those that surround the making of the statement and that render the declarant particularly worthy of belief." Wright, 497 U.S. at 819. Stated another way, the declarant's truthfulness must "be so trustworthy that adversarial testing would add little to its reliability." Id. at 821. The trustworthiness of the hearsay statement and the trustworthiness of the declarant must be inherent; they cannot be evaluated by "reference to other evidence at trial," id. at 822, since that "would permit admission of a presumptively unreliable statement by bootstrapping on the trustworthiness of other evidence at trial, a result . . . at odds with the requirement that hearsay evidence admitted under the Confrontation Clause be so trustworthy that cross-examination of the declarant would be of marginal utility." Id. at 823.

It has been said that a declarant's statement is more trustworthy when the declarant is disinterested since "the testimony of a 'mere bystander with no axe to grind' tends to be more trustworthy," United States v. Hooks, 848 F.2d 785, 797 (7th Cir. 1988) (citing United States v. Boulahanis, 677 F.2d 586, 588 (7th Cir.), cert. denied, 459 U.S. 1016 (1982)), and when the statement is "made under oath and subject to prosecution for perjury, is given without coercion, and is corroborated by other testimony or evidence." Id. (citing Boulahanis, supra). Here, none of those factors holds true.

In fact, Patrick xxxxxxx' statements bore every hallmark of untrustworthiness and would have been ripe for cross-examination on several points. First, although little else is known about Patrick xxxxxxx, the fact that he was involved in the illicit drug trade and that he twice told outright lies to the police clearly eliminate any possibility that his accusations were "so trustworthy that adversarial testing would add little to [their] reliability." Wright, 497 U.S. at 821. Furthermore, this informant can hardly be described as a disinterested witness; he had a powerful self-interest to escape the criminal sanctions that he was facing. And, the circumstances under which he accused Mr. xxxxx were undoubtedly coercive since apparently the only way for the informant to escape criminal sanctions was to accuse someone else of criminal conduct. Of course, he had not previously been subject to cross-examination, nor had he ever come face-to-face with the one he accused. And, finally, his accusations about Mr. xxxxx were not corroborated by any other evidence that Mr. xxxxx was in fact his cocaine supplier (as opposed to someone unwittingly used by a supplier to drive the car containing the drugs to the specified location). See United States v. Dean, 980 F.2d 1286, 1288 (9th Cir. 1992) (officer's testimony that he went to defendant's house because a person had told him that defendant had extorted money by discharging gun near person's ear violated Confrontation Clause because accusation, delivered in a restaurant, did not bear particularized guarantee of trustworthiness); Stewart v. Cowan, 528 F.2d 79, (6th Cir. 1976) (officer's testimony that "a number of people in the neighborhood" had said that defendant committed the offense, purportedly admitted to explain why investigation commenced, violated Confrontation Clause).

The use of the informant's out-of-court statements, in the absence of any ability to cross-examine the informant, prejudiced Mr. xxxxx's defense and was not harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24 (1967); see supra, p. 26-28. "[P]robably no one, certainly no one experienced in the trial of lawsuits, would deny the value of cross-examination in exposing falsehood and bringing out the truth in the trial of a criminal case." Pointer v. Texas, 380 U.S. 400, 404 (1965). Without an opportunity to probe the informant's actual statements and motives, "the ultimate integrity of the fact-finding process," xxxxxxx, 448 U.S. at 64 (quoting Chambers, 410 U.S. at 295, and Berger, 393 U.S. at 315), was compromised in this case.

CONCLUSION

For the foregoing reasons, the judgment against Mr. xxxxx must be vacated and the case remanded to the district court for a new trial.

Respectfully submitted,

A. J. Kramer

Federal Public Defender

_________________________________

Sandra G. Roland

Assistant Federal Public Defender

Counsel for Winston K. xxxxx

625 Indiana Avenue, N.W.

Suite 550

Washington, D.C. 20004

(202) 208-7500

CERTIFICATE OF LENGTH

I HEREBY CERTIFY that the foregoing brief for appellant, Winston K. xxxxx, does not exceed the number of words permitted by Rule 28(d) of the General Rules of this Court.

_________________________________

Sandra G. Roland

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that two copies of the foregoing Brief and Addendum for Appellant have been delivered by hand to the United States Attorney's Office, John R. Fisher, Esq., Appellate Division, 555 Fourth Street, N.W., Washington, D.C. 20001, this 9th day of May, 1995.

___________________________________

Sandra G. Roland

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_________________________________________________________________

No. xxxxxxxxxxxx

_________________________________________________________________

APPENDIX FOR DEFENDANT-APPELLANT

WINSTON K. xxxxx

_________________________________________________________________

UNITED STATES OF AMERICA, Plaintiff-Appellee,

WINSTON K. xxxxx, Defendant-Appellant.

_________________________________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_________________________________________________________________

A.J. Kramer

Federal Public Defender

Sandra G. Roland

Assistant Federal Public Defender

Counsel for Winston K. xxxxx

625 Indiana Avenue, N.W. Suite 550

Washington, D.C. 20004

(202) 208-7500

District Court

Cr. No. xxxxxxxxxx

APPENDIX

TABLE OF CONTENTS

DOCKETING SHEET 1

INDICTMENT

JUDGMENT IN A CRIMINAL CASE

NOTICE OF APPEAL

EXCERPTS OF TRANSCRIPTS

1. The transcript of the trial proceedings held on September 29, 1992 is noted herein as "9/29."

The transcript of the excerpted testimony of witness John Fleming on September 29, 1992, is noted herein as "9/29A."

The transcript of the proceedings held on September 29, 1992, following the testimony of witness John Fleming, is noted herein as "9/29B."

The transcript of the trial proceedings held on September 30, 1992, is noted herein as "9/30."

2. Delores Vanderhall testified that she had co-signed for a loan for the Toyota Cressida that Mr. xxxxx drove, but that she had never been inside the car and had seen the car only once (9/30 at 38, 40).

3. No fingerprints were recovered from the packages of drugs (9/29A at 37-38). The officer was impeached by omission with his failure to record in the PD-163 that one of the packages was "sticking out" beyond the front seat (9/29B at 46).

4. The prosecutor answered the court's concerns by agreeing not to elicit that information (9/29 at 67: "Well, what I could do is have him testify just that the defendant -- that the informant agreed to cooperate with the police, and leave it like that. . . [a]nd that he made phone calls. I can't even -- I mean, I can't really say who the phone calls were to. I can just say that he made phone calls, and then the meeting took place.").

5. The district court heard testimony from INS Agent John Fleming outside the presence of the jury (9/29 at 77-85). Agent Fleming testified that although he stood beside Patrick xxxxxxx while Mr. xxxxxxx talked on the telephone, he could not understand most of what was said because Mr. xxxxxxx spoke in a Jamaican dialect (9/29 at 79, 81). The only words spoken by Mr. xxxxxxx that Agent Fleming understood were "Winston," "twenty minutes," and "9th and Allison" (9/29 at 81-82).

6. The jury did not learn about another criminal matter pending against Mr. xxxxxxx because the court sustained, on hearsay grounds, the government's objection to defense counsel's question about the charges (9/29A at 21-22, 25-29).

7. The two telephone conversations were not monitored (9/29A at 32), nor were they recorded (9/29A at 33). The agents did not trace the calls to discover the address or identity of the caller (9/29A at 39).

8. No photographs or videos were taken (9/29A at 34), and no pager recovered from the car (9/29A at 35-36).

9. In response to a question on cross-examination about the officers' failure to take any surveillance photographs, Special Agent Barnes again conveyed the message that Mr. xxxxx was the informant's supplier (9/30 at 14-15): "When the call was received about Mr. xxxxx, you're talking twenty minutes. Now, twenty minutes in my line of work can be five minutes, it can be three hours, it can be two minutes. To take a photograph of our criminal informant on the corner and possibility of Mr. xxxxx showing up kind of messes up the deal. Why are we taking a picture of the guy who he's going to give dope to? . . . "

10. In addition, the prosecutor hammered home the truth of the hearsay statements by using the precise language that the judge had cautioned him against in a question of the "drug expert," David Stroud (9/30 at 55-56):

Q. Now, in connection with your on-the-job experience, have you ever been involved in a situation where someone that was known to you as a drug dealer agreed to cooperate with the police and help the police to build a case against a supplier?

A. Yes, I have, yes.

11. See, e.g., United States v. Johnson, 934 F.2d 936, 942 (8th Cir. 1991) (agent's testimony about attempts to arrange drug transaction with principal target of investigation admissible to show why agents began investigation and to explain their activity regarding defendant's role in that investigation); United States v. Pulley, 922 F.2d 1283, 1287 (6th Cir.) (out-of-court statement admissible to explain search of home in order to rebut defense's suggestion that agent had planted evidence), cert. denied, 502 U.S. 815 (1991); United States v. Hawkins, 905 F.2d 1489, 1495 (11th Cir. 1990) (background evidence admissible to rebut defense's contention that the Postal Service's investigation was designed to harass defendant), cert. denied, 498 U.S. 1038 (1991); United States v. Vizcarra-Porras, 889 F.2d 1435, 1439 (5th Cir. 1989) (informant's out-of-court statements admissible to explain origin of investigation and to explain why defendant was approached by police on day of arrest), cert. denied, 495 U.S. 940 (1990); United States v. Mejia, 909 F.2d 242, 247 (7th Cir. 1990) (agent's testimony that he received tip that shipment of drugs was expected to arrive at house not necessarily hearsay because admitted to show why agents were watching defendant's house); United States v. Freeman, 816 F.2d 558, 563 (10th Cir. 1987) (out-of-court statements that participants going to meet "white male from out-of-town" not hearsay because offered to explain why agents surveilled defendants); United States v. Love, 767 F.2d 1052, 1063 (4th Cir. 1985) (out-of-court statements offered for limited purpose of explaining why officers made preparations that they did in anticipation of appellants' arrest not hearsay), cert. denied, 474 U.S. 1081 (1986).

12. See, e.g., United States v. Reyes, 18 F.3d 65, 70 (2d Cir. 1994) (reversing conviction, recognizing potential for prejudice from misuse of "background" evidence, and enumerating factors used to determine admissibility of such evidence); United States v. Hernandez, 750 F.2d 1256, 1257 (5th Cir. 1985) (government's argument that purpose of agent's testimony that DEA had received tip that defendant was a drug smuggler was to explain motivation behind investigation "is unconvincing from both a common sense perspective, and from the government's subsequent use of that testimony").

Some courts have held that it is error to admit the evidence where the out-of-court statement identifies the defendant as the wrongdoer. United States v. Brown, 767 F.2d 1078, 1084 (4th Cir. 1985) (agent's testimony about tip connecting defendant with stolen shrimp was inadmissible hearsay); United States v. Figueroa, 750 F.2d 232, 240 (2d Cir. 1984) (reversible error where agent's testimony about informant's telephone conversations used to imply that defendant was active participant in drug operation); United States v. Gaeta, 14 M.J. 383, 389 (1983) ("[I]t was quite unnecessary to identify appellant by name and to associate a specific criminal activity with him merely for the purpose of explaining why [the agent] . . . happened to be at the scene."); United States v. Mancillas, 580 F.2d 1301, 1310 (7th Cir.) (agent's testimony about tip naming defendant as being involved in heroin shipment inadmissible), cert. denied, 439 U.S. 958 (1978); United States v. Gomez, 529 F.2d 412, 416-417 (5th Cir. 1976) (informant's statement, repeated in officer's testimony, "pointed directly to the suspects involved" and should not have been admitted); State v. Rowe, 843 P.2d 714, 717 (Kan. 1992) (substance of a communication by informant to police officer inadmissible hearsay when it tends to identify the accused and establish his guilt); State v. Hardy, 354 N.W.2d 21, 24 (Minn. 1984) (out-of-court statement tying defendant to participants in crime inadmissible hearsay).

Other courts have held that "background" evidence is simply irrelevant. United States v. Dean, 980 F.2d 1286, 1288 (9th Cir. 1992) (introduction of out-of-court statements for purpose of showing why officer went to defendant's residence reversible error because irrelevant to elements of charged offense and highly prejudicial); United States v. Taylor, 900 F.2d 779, 782 (4th Cir. 1990) (same); United States v. Lamberty, 778 F.2d 59, 61 (1st Cir. 1985) (same); Johnson v. State, 587 A.2d 444, 450 (Del. 1991) (no need for informant's out-of-court statements where defense did not challenge police procedures); State v. Lowrie, 542 P.2d 128, 131 (Wash. 1975) (out-of-court statement introduced for purpose of explaining police action was inadmissible hearsay where "neither the making of the statement . . . nor the resultant police action" was relevant to any issue in the case, except to prove the truth of the matter asserted).

13. The Sixth Amendment provides, in part, that in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . .

14. xxxxxxxxxxx lied to the police about his citizenship and about his birthplace (9/29A at 3-4).