U.S. v. Parry

• Decision Date: 29 June 1981
• Docket Number: No. 80-5341,80-5341
• Citation: 649 F.2d 292
• Parties: 8 Fed. R. Evid. Serv. 888 UNITED STATES of America, Plaintiff-Appellee, v. Scott PARRY, Defendant-Appellant. . Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 292

649 F.2d 292

8 Fed. R. Evid. Serv. 888

UNITED STATES of America, Plaintiff-Appellee, v. Scott PARRY, Defendant-Appellant.

No. 80-5341.

United States Court of Appeals, Fifth Circuit.

Unit B

June 29, 1981.

Howard Skinner, Asst. Federal Public Defender, Jacksonville, Fla., for defendant-appellant.

Ernest D. Mueller, Asst. U. S. Atty., Jacksonville, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Middle District of Florida.

Before MORGAN, RONEY and KRAVITCH, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge.

The question in this case is whether the district court erred in excluding certain testimony by the appellant's mother as inadmissible hearsay. We conclude that the evidence should have been admitted and therefore reverse appellant's convictions and remand for a new trial.

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. Essentially, these agents testified that Parry had acted as a middleman or intermediary in arranging three separate drug transactions between the agents and certain individuals who had drugs for sale.

In his defense to these charges, Parry did not deny that he had participated in the drug transactions described by the DEA agents but argued that, during each of these transactions, he had proceeded upon the good faith belief that he was working for the agents, assisting them in locating drug dealers. As proof of the purity of his intentions, Parry testified that he had learned that Starratt was an undercover agent several days before he had met the agent or engaged in any of the activities alleged in the indictment. Although Parry conceded that he never entered into any formal agreement to cooperate with the agents, he argued that, at least from his perspective, there was an implied understanding that he would lead the agents to drug sources.

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. In an effort to corroborate his story, Parry called his mother as a witness. Outside the presence of the jury his mother testified that

Scott received several phone calls and I would tell Scott that Bob called and I questioned Scott on who he was because I thought at first it was a painting job and Scott had said told me that his name was Bob Starratt, he was working with him, he was a narcotics agent, he was working with and not to worry.

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.

It is our judgment that the court erred in excluding the proffered testimony. First, we find that Parry's out-of-court statement to his mother is simply outside the scope of the hearsay prohibition. Rule 801(c) of the Federal Rules of Evidence defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." The reasons for excluding hearsay are clear: when an out-of-court statement is offered as a testimonial assertion of the truth of the matter stated, we are vitally interested in the credibility of the out-of-court declarant. Because a statement made out of court is not exposed to the normal credibility safeguards of oath, presence at trial, and cross-examination, the jury has no basis for evaluating the declarant's trustworthiness and thus his statement is considered unreliable. McCormick on Evidence § 245 (2d ed. 1972); 5 Wigmore on Evidence §§ 1361, 1362 (1974); United States v. Carter, 491 F.2d 625 (5th Cir. 1974). Implicit in both the definition and justification for the rule, however, is the recognition that whenever an out-of-court statement is offered for some purpose other than to prove the truth of the matter asserted, the value of the statement does not rest upon the declarant's credibility and, therefore, is not subject to attack as hearsay.

Parry contends, and we agree, that in this case the excluded testimony was not offered to evidence the truth of the matter asserted in the out-of-court statement. Parry's mother sought to testify that her son had stated that the person who had been telephoning her home was a narcotics agent and that he, Parry, was working with the agent. As Parry explained to the district court, this statement was not offered to prove that the caller was a narcotics agent or that Parry was working with the agent, but to establish that Parry had knowledge of the agent's identity when he spoke. In other words, Parry offered the statement as the basis for a circumstantial inference by the jury that, if this statement was in fact made a question which the in-court witness could testify to...