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United States v. Parry - 649 F.2d 292 (5th Cir. 1981)


Using an out-of-court utterance as circumstantial evidence of the declarant's knowledge of the existence of some fact, rather than as testimonial evidence of the truth of the matter asserted, does not offend the hearsay rule.


Scott Parry was tried before a jury and convicted in consolidated cases of conspiring to distribute phenycyclidine hydrochloride (PCP) and of possessing with intent to distribute PCP and dl-methamphetamine hydrochloride. At trial the government presented its case primarily through the testimony of two undercover agents with the Drug Enforcement Administration, Robert Starratt and Douglas Driver. In support of his position that he had known from the outset of the agents' identities, Parry related a conversation he had had with his mother shortly after he met Agent Starratt in October 1974 and well in advance of his arrest in January 1975. Parry testified that, in response to his mother's inquiry, he had stated that the person who had frequently telephoned her home asking to speak to Parry was a narcotics agent with whom he was then working. Although the government voiced no objection to the proffered testimony, the court ruled that Parry's mother could not testify to "any conversations that she had with her son or that her son had with her." Parry's objection that his mother's testimony was not hearsay and therefore should not be excluded was overruled by the district court. The district court ruled that defendant's mother could not testify to any conversations that she had with her because such would violate the hearsay rule.


Should the mother's testimony be excluded as hearsay?




The court found that the excluded testimony was not offered to prove the truth of the matter asserted, but to establish that defendant had knowledge of one of the agent's identity when he spoke with him on the telephone. Therefore, the district court should have admitted the statement and given a limiting instruction that the statement was admissible only as circumstantial evidence of defendant's knowledge. Defendant's conviction was reversed and the matter was remanded for a new trial.

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