## Facts

- A DEA task force arranged an undercover purchase of heroin from Omar Robles-Manguia in a Louisville-area shopping center parking lot.
- Surveillance observed a Hispanic male in a pickup truck slowly circling the lot.
- Robles entered the undercover officer’s car, delivered two taped packages of heroin, and was arrested after the officer signaled.
- Officers stopped the circling pickup as it attempted to leave; the driver was Francisco Rodriguez-Lopez.
- Robles told officers he planned to sell about 56 grams of heroin for $9,000 and that Rodriguez agreed to act as a lookout for $4,000.
- Special Agent Perryman questioned Rodriguez, who denied knowledge of any drug deal.
- During questioning, Rodriguez’s cell phone rang repeatedly; the agent answered ten calls, and each caller requested heroin.
- Rodriguez was charged with conspiracy to distribute heroin.
- Before trial, the district court granted a motion in limine excluding evidence of the ten calls as hearsay.

## Issues

1. Whether ten post-arrest calls to Rodriguez’s cell phone requesting heroin were inadmissible hearsay under Rules 801(c) and 802 when offered as circumstantial evidence rather than for the truth of the callers’ statements.

## Decision

- The Sixth Circuit reversed the district court’s exclusion of the call evidence and remanded.
- The court held the evidence was not hearsay because the government offered it for a non-truth purpose.
- The district court abused its discretion by excluding the evidence based on a legal error about what constitutes hearsay.

## Legal Principles

- Under Fed. R. Evid. 801(c), a statement is hearsay only if offered to prove the truth of the matter asserted.
- Statements offered to show they were made, their effect in context, or as circumstantial evidence of a material fact are not hearsay.
- Repeated drug-request calls to a defendant’s phone may be admissible as circumstantial evidence linking the phone (and user) to drug distribution, without requiring proof that the callers’ requests were true.

## Conclusion

Because the government offered the callers’ heroin requests only to show the calls occurred and to support an inference that Rodriguez’s phone was used in heroin trafficking, the calls were nonhearsay; excluding them as hearsay was an abuse of discretion, requiring reversal and remand.


United States v. Rodriguez-Lopez, 565 F.3d 312 (6th Cir. 2009)