## Facts

- A DEA informant and a DEA agent posing as the informant’s wife arranged a cocaine purchase with Hernandez, meeting first at a coffee shop and later at a service station before proceeding to Hernandez’s tire shop, where two cocaine packages were produced.
- Hernandez was arrested while traveling to the location where payment was to occur.
- At trial, the government elicited testimony from the DEA agent that the DEA opened its investigation because another federal agency “tipped off” the DEA that Hernandez was a drug smuggler.
- The prosecutor later referenced and embellished the “tip” in closing argument, implying that another federal agency had already determined Hernandez was a smuggler.
- Hernandez was convicted in federal district court of cocaine trafficking and appealed.

## Issues

1. Whether testimony relaying an interagency “tip” that Hernandez was a drug smuggler was inadmissible hearsay when used to show guilt.
2. Whether the “tip” evidence, even if offered as background, should have been excluded as unfairly prejudicial under Federal Rule of Evidence 403.
3. Whether admission and prosecutorial use of the “tip” required reversal and a new trial.

## Decision

- The Fifth Circuit reversed and remanded for a new trial.
- The court held the “tip” testimony was hearsay offered for the truth that Hernandez was a drug smuggler and was inadmissible under Rule 802.
- The court held that any slight background value was substantially outweighed by unfair prejudice under Rule 403, particularly given the prosecutor’s closing argument use.
- The court also characterized the “tip” as improper propensity evidence functioning as “other acts” proof under Rule 404(b).
- The error was not harmless because the interagency accusation carried significant weight and was highlighted to the jury.

## Legal Principles

- Out-of-court accusations relayed through an agent are hearsay when the jury is invited to accept them as proof of the defendant’s criminal conduct.
- A claimed “background” or “explanation of investigation” purpose does not prevent exclusion when the agent’s state of mind is not material and the statement’s practical use is to prove guilt.
- Under Rule 403, minimal probative value for narrative context may be substantially outweighed by the risk that the jury will treat a law-enforcement “tip” as authoritative proof of guilt.
- Evidence implying prior criminal conduct or suspicious character, introduced to suggest the defendant acted in conformity with that character, is barred by Rule 404(b) when used for propensity.

## Conclusion

The Fifth Circuit ordered a new trial because the government used an interagency “tip” branding Hernandez a smuggler as substantive proof, creating hearsay and severe unfair prejudice that was compounded by closing argument and could not be treated as harmless.


United States v. Hernandez, 750 F.2d 1256 (5th Cir. 1985)