## Facts

- Sandy Check, an NYPD patrolman, was investigated for alleged narcotics trafficking.
- Undercover Detective Stephen Spinelli, posing as “Danny Gennaro,” worked with confidential informant William Joseph Cali, who agreed to introduce Spinelli to Check for a controlled purchase.
- Cali arranged an August 8, 1974 meeting with Check; thereafter Spinelli’s contacts with Check proceeded through and around Cali, including discussions about proposed drug transactions.
- At trial, Cali did not testify.
- The prosecution elicited extensive testimony from Spinelli about “what Spinelli told Cali” during their conversations, framed to avoid directly asking for Cali’s statements.
- Spinelli’s recounted statements conveyed incriminating assertions about Check’s alleged drug dealing (e.g., demands for payment in advance, drugs kept at Check’s home, and planned cocaine delivery), inviting the jury to infer the content of Cali’s out-of-court accusations.
- A jury convicted Check of two counts of possession with intent to distribute heroin (with actual distributions) under 21 U.S.C. § 841(a)(1) and one count of conspiracy under 21 U.S.C. § 846; the district court imposed concurrent one-year terms and a consecutive period of special probation.
- On appeal, Check argued the convictions rested on inadmissible hearsay transmitted through Spinelli’s testimony.

## Issues

1. Whether the government may avoid the hearsay rule by eliciting a witness’s side of conversations with a nontestifying informant when the testimony’s evidentiary value depends on implied assertions by the absent informant.
2. Whether admitting such “half-conversation” testimony constituted prejudicial error requiring reversal.

## Decision

- The Second Circuit reversed the convictions and remanded for a new trial on all counts.
- The court held that substantial portions of Spinelli’s testimony were inadmissible hearsay because they effectively placed Cali’s out-of-court accusatory statements before the jury.
- The court rejected the claim that Spinelli’s availability for cross-examination made his prior out-of-court statements admissible for their truth absent a recognized hearsay exception.
- The erroneous admission was not harmless because the hearsay was extensive, central to the prosecution’s proof, and could not be tested by cross-examining Cali.

## Legal Principles

- The hearsay rule cannot be circumvented by presenting only one side of a conversation when the testimony’s probative force depends on the jury inferring and crediting the absent speaker’s implied assertions.
- A witness’s own prior statements are not admissible for their truth merely because the witness testifies and can be cross-examined; admissibility requires a specific rule-based exclusion or exception.
- Indirect admission of an absent declarant’s accusations through a testifying “conduit” undermines the protections of the hearsay rules and risks unfair prejudice, particularly where the absent declarant is not subject to cross-examination.
- Where improperly admitted hearsay supplies significant incriminating details and pervades the government’s case, the error is prejudicial and warrants a new trial.

## Conclusion

The court ordered a new trial because the prosecution’s use of an undercover detective’s “half-conversation” testimony functionally communicated a nontestifying informant’s accusations to the jury, constituting extensive and prejudicial hearsay not cured by the detective’s availability for cross-examination.


United States v. Check, 582 F.2d 668 (2d Cir. 1978)