This week the Second Circuit issued an opinion, available here, in United States v. Demott, No. 13-3410 (2d Cir. 2018) (Leval, Pooler, Wesley) (appeal from N.D.N.Y). The opinion has three holdings. First, it rejects an as-applied vagueness challenge to the Controlled Substance Analogue Enforcement Act, 21 U.S.C. §§ 802(32)(A), 813. Second, with respect to mens rea, it holds the Analogue Act requires only that the defendant knew he was dealing with a controlled substance — not that the defendant knew he was dealing with a substance that is controlled under the Analogue Act itself.
Third, and of particular interest, the Circuit reversed the defendant’s conviction because the district court erroneously admitted impermissible hearsay evidence as “background testimony.” Slip op. at 35-50. Specifically, a detective testified for the government as to how he got involved in the criminal investigation that led to the defendant’s arrest. The detective testimony included, among other statements, that “a source” identified the defendant as on “the same level” as another “primary distributor” of Molly in Syracuse. Id. at 35-36. This “informant,” the detective explained, also told him that “there was going to be a narcotics transaction slash robbery in the 300 block of Montgomery street” where there would be a black Cadillac owned by the defendant. The detective also described an informant as “someone we build credibility to, based on their information” by “corroborat[ing] things they tell us.” Id. at 36.
Building on the Circuit’s opinion in United States v. Reyes, 18 F.3d 65 (2d Cir. 1994), the Court held that this constituted impermissible background testimony. In Reyes (also written by Judge Leval), the Court held that the propriety of background hearsay testimony depends on “whether the probative value of this evidence for its non-hearsay purpose is outweighed by the danger of unfair prejudice resulting from the impermissible hearsay use of the declarant’s statement.” 18 F.3d at 70. Here, the Court determined the value of the non-hearsay use of the detective’s testimony to be “practically nil, while the prejudice flowing from the jury’s consideration of the content of the informant’s tip was substantial and obvious.” Slip op. at 39. To the extent that any background testimony concerning the detective’s involvement was necessary, the government could have simply elicited testimony that an informant had given information about expected activities at the location in question.