concurring in part and dissenting in part.
I concur in the majority’s holding that Martin’s conviction on the false statement counts was not inconsistent with his acquittal on the trafficking counts, and that his Jackson v. Virginia claim is without merit. But I would not uphold the trial court’s admission of the federal agent’s hearsay testimony on direct examination said to “set the scene” or provide “background.” This hearsay by an unnamed, out-of-court declarant that the defendant had committed the same crimes before was highly damaging to the defendant, and falls into no existing exception to the hearsay rule. Also, such hearsay testimony violates the Confrontation Clause of the Sixth Amendment to the Constitution.
First, the majority asserts that the agent’s testimony, offered for the limited purpose of demonstrating why the government initiated its investigation of Martin, is not hearsay. This view receives some ambiguous support from the decisions of other circuits which have not seriously considered the point. See, e.g., United States v. Freeman, 816 F.2d 558 (10th Cir.1987); United States v. Love, 767 F.2d 1052 (4th Cir.1985), cert. denied, 474 U.S. 1081, 106 S.Ct. 848, 88 L.Ed.2d 890 (1986); United States v. Scott, 678 F.2d 606 (5th Cir.), cert. denied, 459 U.S. 972, 103 S.Ct. 304, 74 L.Ed.2d 285 (1982); United States v. Mancillas, 580 F.2d 1301 (7th Cir.), cert. denied, 439 U.S. 958, 99 S.Ct. 361, 58 L.Ed.2d 351 (1978). Yet no court has explained why investigative background is not hearsay or is necessary or even helpful to jurors in a criminal trial. Jurors need not revisit the government’s preliminary investigative processes, especially when such low-value evidence comes at such a high price to the accused. For prosecutors determined to present such low-value evidence, they should at least have to produce the out-of-court declarant for cross-examination, or demonstrate his or her unavailability. No such effort was made here.
Under the majority’s view, the government apparently offered the out-of-court statements only to show that they were made or that they had some effect on the hearer, and not for the truth of the matter asserted. See Fed.R.Evid. 801(c). Not only is this class of nonhearsay statements normally reserved for different application,1 but the strength of the majority’s *1374argument is undercut further by the fact that the government’s reasons for initiating its investigation are not at issue. Had Martin claimed some form of investigatory or prosecutorial misconduct, such as lack of probable cause, then the majority’s argument would have greater force. Cf. Tennessee v. Street, 471 U.S. 409, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985) (accomplice’s written confession admissible only to rebut defendant’s claim that his confession was coerced). Otherwise, it is difficult to see what value the out-of-court statements would retain except to inform jurors that an out-of-court declarant not subject to cross-examination believed that Martin was a food-stamp trafficker.
The admissibility of background testimony is not a question of first impression for this Court. In Stewart v. Cowan, 528 F.2d 79 (6th Cir.1976), we held that an officer’s background testimony, which indicated that “a number of people in the neighborhood” felt that defendant was guilty of a shooting, violated Stewart’s confrontation guarantee under the Sixth Amendment. Our decision in Stewart is reinforced by other courts of appeals which have ordered new trials in cases where the trial judge permitted prosecutors to present evidence of this type to juries. See, e.g., United States v. Brown, 767 F.2d 1078 (4th Cir.1985); Harris v. Wainwright, 760 F.2d 1148 (11th Cir.1985); United States v. Hilliard, 569 F.2d 143 (D.C.Cir.1977). Although the majority attempts to distinguish Stewart, both that case and ours involve statements of out-of-court declarants who named the defendant as being guilty of a crime. If, as the majority states, the testimony in Stewart went to “the very heart of the prosecution’s case,” then so did it here.
Second, the majority seems to hold that because the agent’s testimony was not hearsay, we need not analyze whether the trial court violated Martin’s confrontation guarantee. The agent’s testimony served only to inform the jury that an absent, unidentified declarant believed that Martin had committed prior acts of food-stamp trafficking. I therefore do not understand how the testimony at issue could be anything but hearsay. As such, the trial court’s admission of the hearsay testimony violated Martin’s right to confront the witnesses against him. Against the backdrop of Supreme Court precedents constitution-alizing “firmly rooted” hearsay exceptions, the majority cites no exception, firmly rooted or otherwise, that warrants admission of the damning statements of an unidentified accuser. Because I do not see how the out-of-court statements could be of any use except to convey to the jury uncross-examined testimony as to Martin’s guilt, I conclude that the trial court violated Martin’s Sixth Amendment right to confront his out-of-court accuser and to test that accuser’s testimony by cross-examination. See, e.g., Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987) (central value of face-to-face encounters is to enhance reliability of accuser’s testimony); United States v. Inadi, 475 U.S. 387, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986) (same); Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) (same).
Third, I disagree with the majority’s holding that, in any event, the error was harmless beyond a reasonable doubt.2 Because of the vagaries of the subjective thought processes of jurors, I believe the error raises a reasonable doubt concerning the jury’s use of the hearsay. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); cf. Harris v. Wainwright, 760 F.2d 1148 (11th Cir.1985) (admission of investigative background testimony violated confrontation guarantee and was not harmless error); Hutchins v. Wainwright, 715 F.2d 512 (11th Cir.1983) (same), cert. denied, 465 U.S. 1071, 104 *1375S.Ct. 1427, 79 L.Ed.2d 751 (1984); Stewart, supra (same); Favre v. Henderson, 464 F.2d 359 (5th Cir.) (same), cert. denied, 409 U.S. 942, 93 S.Ct. 235, 34 L.Ed.2d 193 (1972). This was a close case in which the defendant’s conviction on fraudulent statement charges was accompanied by acquittal on conspiracy and trafficking charges. We do not know, beyond a reasonable doubt, that the jury did not use the hearsay testimony in question to infer fraud.3
The Federal Rules and the Constitution clearly protect criminal defendants from prosecution based on hearsay and otherwise unduly prejudicial evidence. Accordingly, I respectfully dissent from the majority’s holding that the trial court’s error does not warrant a new trial.
. This class of nonhearsay customarily involves statements that bear on the probable state of mind of the hearer. See McCormick on Evidence § 249, at 733-34 (E. Cleary ed. 1984) (statements may be considered nonhearsay if offered to show, for example, the hearer's no*1374tice, knowledge, motive, anxiety, or reasonableness of action). Our case, however, turns on the intent of Mr. Martin, not of the undercover agent or his superiors.
. Because the trial court’s admission of the testimony in question violated both the rule against hearsay and the Confrontation Clause, and is therefore reversible under the Chapman v. California harmless error standard, I need not address whether the same testimony, if cross-examined, would be inadmissible propensity evidence under rules 403 and 404(b) of the Federal Rules of Evidence.
. The majority concedes the ineffectiveness of curative jury instructions in this type of case.