## Facts

- Officers executed a search of Sonia Mayfield’s apartment and found crack cocaine and other evidence consistent with drug distribution.
- During the search, the apartment phone rang; an officer answered and spoke with an unidentified woman.
- The caller asked for “Keith,” and when told he was “busy,” asked whether he “still had any stuff,” later clarifying she wanted “a fifty” (a quantity of crack cocaine) and asking whether “Mike” could pick it up.
- At trial, the government offered the officer’s testimony about the caller’s side of the conversation to support an inference that the phone and apartment were being used for ongoing drug sales and that “Keith” was a source of crack.
- Keith Long (and Mayfield) objected that the caller’s statements were hearsay because they implicitly asserted Long was dealing drugs; the district court overruled the objection and admitted the testimony.
- A jury convicted Long and Mayfield of federal narcotics offenses; Long appealed, challenging (among other things) admission of the phone-call testimony.

## Issues

1. Whether an unidentified caller’s questions and requests to buy drugs constitute “hearsay” under Federal Rule of Evidence 801 because they implicitly assert that the defendant is a drug dealer with drugs for sale.
2. If admission was error, whether the error warranted reversal or was harmless in light of the remaining evidence.

## Decision

- The D.C. Circuit affirmed.
- The court held the caller’s questions and requests were not hearsay because they were not “assertions” offered to prove the truth of a matter asserted within the meaning of Rule 801.
- The court rejected treating inferential implications (“implied assertions”) as hearsay where the declarant did not intend to assert the inferred fact.
- The court indicated that, even if admission were mistaken, the remaining evidence of trafficking was strong enough that any error would likely be harmless.

## Legal Principles

- Under FRE 801(a)–(c), hearsay requires a “statement,” and a “statement” requires an intended assertion; questions and requests generally are not assertions.
- An utterance is not hearsay merely because a factfinder may draw an inference from it; Rule 801 focuses on what the declarant intended to assert, not every implication a listener might infer.
- Out-of-court words may be admitted as circumstantial evidence of how a drug operation functioned (e.g., use of a phone to arrange sales) when not offered for the truth of an asserted proposition.
- The ability to cross-examine the testifying officer about what was heard and the circumstances of the call addresses reliability concerns when the caller’s words are not admitted as testimonial assertions for their truth.

## Conclusion

The court upheld the convictions, ruling that an unknown caller’s drug-purchase inquiries during a search were admissible because they were non-assertive questions and requests outside FRE 801’s hearsay definition, and any arguable error would not justify reversal given the other evidence of trafficking.


United States v. Long, 905 F.2d 1572 (D.C. Cir. 1990)