## Facts

- Johnson was prosecuted in federal court on narcotics charges.
- At trial, the government presented a law-enforcement agent who testified about the course of the investigation.
- The agent relayed an out-of-court statement by an arrestee/informant identifying Johnson as the source of drugs.
- The government argued the statement was admitted not for its truth, but as “background” to explain why agents focused on Johnson and took subsequent investigative steps.
- Johnson objected that the testimony was inadmissible hearsay and improperly conveyed an accusation from a non-testifying declarant.
- The district court allowed the testimony under a “background”/“state of mind of the officer” rationale, and the jury convicted.
- Johnson appealed, challenging the evidentiary ruling admitting the agent’s testimony.

## Issues

1. Whether an agent may testify, as “background” explaining the investigation, that an informant identified the defendant as the drug source, or whether that testimony is inadmissible hearsay.
2. Whether admitting such accusatory out-of-court statements through an officer witness raises Confrontation Clause concerns because the declarant is not subject to cross-examination.
3. If the testimony was improperly admitted, whether the error required reversal or was harmless in light of the other evidence.

## Decision

- The Second Circuit held the district court erred by admitting the agent’s testimony conveying the informant’s specific inculpatory accusation under the guise of “background.”
- The court reasoned that the testimony effectively placed before the jury a non-testifying declarant’s assertion of the defendant’s guilt, which the jury would likely treat as true.
- The court nonetheless affirmed the conviction because the error was harmless given the strength of the properly admitted evidence and the limited effect of the improper testimony on the verdict.

## Legal Principles

- “Background” or “course of investigation” testimony is admissible only to the extent it genuinely serves a non-hearsay purpose (e.g., explaining why officers took particular steps) and does not function as substantive proof of guilt.
- The government may not use an officer as a conduit to introduce accusatory out-of-court statements that “bore importantly” on the prosecution’s case while avoiding the hearsay rules.
- A brief, neutral reference that officers acted on “information received” may be permissible; repeating the substance of an informant’s detailed accusation identifying the defendant as the perpetrator is functionally hearsay.
- When the government introduces an informant’s accusation through officer testimony, the risk that the jury will treat it for its truth creates serious fairness and Sixth Amendment confrontation concerns.
- Improper admission of such hearsay is subject to harmless-error review; reversal depends on the likely impact on the verdict in light of the entire record.

## Conclusion

The Second Circuit rejected the use of “background” as a justification for admitting an informant’s direct accusation of the defendant through an agent’s testimony, holding the evidence was improper hearsay with confrontation implications, but affirmed the conviction because the error did not affect the outcome.


United States v. Johnson, 529 F.3d 493 (2d Cir. 2008)