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

Rule:

An implied assertion is expressly excluded from the operation of the hearsay rule by Fed. R. Evid. 801.

Facts:

While conducting a search of the premises of the defendant, Ruby Humphrey, pursuant to a lawful search warrant which authorized a search for evidence of bookmaking activity, government agents answered the telephone several times. The unknown callers stated directions for the placing of bets on various sporting events. In its prosecution of defendants for illegal bookmaking activities, the United States proposed to introduce evidence of implied assertions by certain telephone callers to show that they believed that defendants' premises were used in betting operations by Humphrey. Defendants objected contending the evidence was hearsay.

Issue:

Can the phone call and implied assertions be introduced as evidence?

Answer:

Yes.

Conclusion:

After examining the common law and federal evidentiary rules' treatment of hearsay, the court overruled the objection, holding that rule 801(a)(2) removed implied assertions from the definition of statement and from the operation of the hearsay rule. Consequently, the utterances of the betters telephoning in their bets were nonassertive verbal conduct, offered as relevant for an implied assertion that bets could be placed at the premises being telephoned. As such implied assertions, the evidence was expressly excluded from the operation of the hearsay rule.

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