## Facts

- Federal agents executed a lawful search warrant at premises associated with defendant Ruby Humphrey, seeking evidence of illegal bookmaking.
- During the search, the telephone rang repeatedly, and agents answered the calls.
- Unknown callers gave directions for placing bets on various sporting events.
- The prosecution sought to introduce the calls as circumstantial evidence that the premises were used for bookmaking because callers acted as though it was a betting operation.
- Defendants objected that the calls were inadmissible hearsay because they implied an out-of-court assertion that the premises were a bookmaking establishment.

## Issues

1. Whether unknown callers’ bet-placing telephone statements are “statements” under Federal Rule of Evidence 801(a) when used only as implied assertions about the nature of the premises.
2. Whether such implied assertions constitute hearsay under Federal Rule of Evidence 801(c) and must be excluded.

## Decision

- The court ruled the intercepted telephone calls admissible.
- The calls were not hearsay under FRE 801 because they were not “assertions” intended to communicate that the premises were a bookmaking operation.
- The callers’ words were treated as non-assertive verbal conduct (transactional language used to place bets), offered for circumstantial relevance rather than for the truth of an asserted proposition.

## Legal Principles

- Under FRE 801(a), an utterance qualifies as a “statement” only if it is an oral or written assertion, or nonverbal conduct intended as an assertion.
- Under FRE 801(c), hearsay requires a “statement” offered to prove the truth of the matter asserted; if there is no intended assertion, the hearsay rule does not apply.
- Implied assertions inferred from conduct or transactional language generally fall outside hearsay when the speaker did not intend to assert the inferred fact.
- The traditional hearsay concerns (especially sincerity/veracity) are reduced when evidence is admitted as circumstantial proof from non-assertive verbal conduct rather than as proof of an asserted fact.

## Conclusion

The court held that unknown callers’ bet-placing phone calls were admissible because, under FRE 801, implied assertions not intended as assertions are not “statements” and therefore are not hearsay when offered as circumstantial evidence of the premises’ use for bookmaking.


United States v. Zenni, 492 F. Supp. 464 (E.D. Ky. 1980)