In United States v. Kent, No. 22-13068 (Feb. 26, 2024) (Wilson, Jill Pryor, Brasher), the Court affirmed Mr. Kent’s conviction.

Mr. Kent was charged with RICO conspiracy and five substantive crimes, including an attempted murder.  The government alleged that the gang Mr. Kent was allegedly a member of murdered a former gang member–Rhodes–for cooperating with the police’s investigation into the attempted murder of another individual–Muhammad. Specifically, the government’s theory was that Mr. Kent and other alleged gang members believed that Rhodes told the police that Mr. Kent had attempted to murder Muhammad and, then, murdered Rhodes for that reason.  To support this theory, the government introduced an investigator’s testimony from a preliminary hearing in a related case, which identified Rhodes as cooperating with law enforcement to implicate Mr. Kent in the attempted murder of Muhammad.  By offering the testimony, the government sought to establish that other gang members present at the hearing learned of Rhodes’s apparent cooperation and murdered him because of it, i.e., the government offered the out-of-court statements for the effect they had on the listener.

Mr. Kent challenged the admission of the above testimony, arguing it was hearsay and admitted in violation of the Confrontation Clause.  The Court disagreed, finding the testimony admissible as nonhearsay, offered for the effect it had on the listeners and not for the truth of the matter asserted.  The Court further found the testimony relevant for a non-hearsay purpose, and found that the district court took sufficient steps to ensure that the jury did not consider the out-of-court statements as substantive evidence of guilt.