United States v. Evans, Cornell

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 20, 2000 Decided June 27, 2000

No. 99-3068

United States of America,
Appellee

v.

Cornell Francis Evans,
Appellant

Appeal from the United States District Court
for the District of Columbia
(No. 98cr00378-01)

Neil H. Jaffee, Assistant Federal Public Defender, argued
the cause for appellant. With him on the briefs were A. J.
Kramer, Federal Public Defender, and Jennifer M. Blunt,
Assistant Federal Public Defender. Evelina J. Norwinski,
Assistant Federal Public Defender, entered an appearance.

Elizabeth H. Danello, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Wilma A.

Lewis, U.S. Attorney, and John R. Fisher, Assistant U.S.
Attorney.

Before: Randolph, Tatel, and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland.

Garland, Circuit Judge: The defendant in this case, Cor-
nell Evans, was convicted of multiple felonies relating to the
possession and distribution of illegal narcotics. The principal
issue on appeal concerns the testimony of an FBI agent who
stated at trial that the government "had received informa-
tion" that defendant was involved in drug trafficking. Defen-
dant contends that this testimony was hearsay and that its
admission was erroneous. Defendant is correct. We con-
clude, however, that the error was harmless, and therefore
affirm his convictions.

I

This case arose out of an undercover narcotics operation
conducted by the Federal Bureau of Investigation. In the
fall of 1996, special agents of the FBI met with Thomas "Tee"
Rose, a former District of Columbia resident who was serving
a federal prison sentence at the Fairton Correctional Institu-
tion and who had two additional state cases pending against
him. The agents agreed to help Rose with his sentence and
pending charges in return for his assistance in the investiga-
tion of other crimes. Thomas Rose told the agents that
defendant Evans was involved in drug trafficking, and he
referred them to his uncle, George Rose of Pennsylvania, who
agreed to assist the FBI provided that his incarcerated
nephew would receive the benefit of his cooperation.

George Rose contacted the defendant by telephone in early
March 1997. In that and subsequent conversations, all taped
by the FBI, Rose arranged to purchase crack cocaine from
Evans at a barber shop where Evans worked. The subject of
drugs first arose when Rose complained that "[t]he quality of
stuff" in Pittsburgh was "terrible." Evans then said: "I got a
few people I can talk to ... depending on what you want."
Defendant noted that the "going price was forty-five for an

eighth" but that there was a shortage, so prices were rising.
He agreed to look into current prices, and in a series of
further calls the two worked out the details of the transaction.
On March 18, 1997, Rose met Evans outside the barber shop
and gave him $1,800 in cash for 62 grams of crack. The
purchase was captured on tape by a body recorder worn by
Rose and on film by FBI surveillance cameras.

Ten days later, George Rose telephoned Evans and the two
discussed another drug transaction. On April 1, 1997, Rose
again met Evans at the barber shop, where he purchased
approximately 124 grams of cocaine powder for $3,600. As
before, Rose wore a body recorder that taped the transaction.
Rose tried to arrange a third transaction on April 23, but
Evans said that his drug supply had dried up.

The FBI arrested Evans more than a year later, on Octo-
ber 13, 1998. In a search incident to the arrest, agents
discovered four small bags of cocaine powder rolled up in
Evans' pants leg. After waiving his Miranda rights, defen-
dant admitted the March 18, 1997 transaction but claimed not
to remember the subsequent deal on April 1. He told the
agents that "Tee" had called him from jail and asked him to
"show around" his uncle, George Rose. He said that George
Rose had then contacted him and expressed an interest in
obtaining cocaine, and that he had agreed to help Rose out.
According to Evans, someone in the barbershop whom he did
not know had given him the names of two people who could
supply him with cocaine. Evans then contacted those people,
whose names he also did not remember. The suppliers
brought the drugs to Evans at the shop, where he delivered
them to Rose. Evans said that he had provided the drugs "as
a favor to Tee and George Rose." 2/4/99 a.m. Tr. at 80.

Evans was charged with unlawful use of a communications
facility, distribution of cocaine and cocaine base, and posses-
sion of cocaine. The case went to trial on February 4, 1999,
and defendant was convicted on all counts.

II

On appeal, Evans raises four challenges to his convictions
and sentence. Of these, only one merits considerable atten-

tion: Evans' claim that the district court committed revers-
ible error by admitting certain government testimony into
evidence. We address that contention first, beginning with a
recitation of the relevant facts.

A

The government's first witness at trial was FBI Special
Agent Neil Darnell. After Darnell testified about the origins
of the undercover operation, including the FBI's contact with
Thomas Rose and George Rose's agreement to cooperate, the
prosecutor asked the agent how he "came about knowing Mr.
Evans." 2/4/99 a.m. Tr. at 26. Defense counsel objected on
the ground that the question necessarily called for hearsay as
to what Thomas Rose had told the FBI. The defense empha-
sized that Rose was not a witness and would not be available
for cross-examination. In response, the prosecutor argued
that the evidence was not hearsay because it was only offered
"to establish where the FBI met with George Rose and why
they did what they did with George Rose." Id. The district
court overruled the objection.

The prosecutor resumed his questioning by asking Darnell
why he had specifically discussed Evans with George Rose.
Agent Darnell answered: "We had received Mr.--or informa-
tion that Mr. Evans was involved in drug trafficking and--."
Id. at 27. Defense counsel interrupted with an objection,
which was again overruled. Agent Darnell then added: "And
Mr. Rose was in a position to directly go in and approach Mr.
Evans about narcotics." Id. The prosecutor then asked
whether the FBI's "information" had come from Thomas
Rose, and Darnell answered that it had. The court sustained
an objection to this question and answer, and directed the
jury to disregard the latter.

Shortly thereafter, the defense requested a bench confer-
ence and moved for a mistrial based on the admission of
Darnell's hearsay testimony that the FBI "had received infor-
mation" that Evans was involved in drug trafficking. Counsel
argued that the jury could infer that Thomas Rose was the
one who had identified Evans as a drug dealer, that this made

it appear more likely that Evans had committed the charged
acts, and that Evans would be unable to cross-examine his
accuser "because this guy is not going to be here to testify."
Id. at 39-40. Again, the government argued that it had
elicited the testimony not to prove the truth of the matter
asserted, but rather "to prove why the FBI did what they
did." Id. at 40. The court denied the mistrial motion without
prejudice to its being renewed later in the proceedings. At
the end of the government's case-in-chief, defense counsel
renewed the motion, and the court made the same ruling.

Evans' defense consisted of the testimony of three wit-
nesses, each of whom said they had never seen any indication
that defendant distributed drugs, as well as Evans' testimony
on his own behalf. On the witness stand, Evans admitted to
his participation in the two charged drug transactions. He
testified that Thomas Rose had told him that his uncle,
George Rose, was coming to D.C. and had asked him to show
George around. Evans said he had not expected George to
ask him to supply drugs, but that he had been able to obtain
some for him from sources whose names he did not remem-
ber. Evans maintained that the two transactions with
George Rose were the only times he had ever distributed
drugs, and specifically denied that he had ever sold drugs
with Thomas Rose. He further stated that he had agreed to
participate in the two sales because he and Thomas Rose
"had a good friendship." 2/5/99 Tr. at 112; see also id. at
124.

The defense renewed its motion for a mistrial two more
times--after it rested and at the close of all the evidence. In
one colloquy, the court acknowledged that it "might have
been a mistake to overrule the objection" to Darnell's testi-
mony, but allowed the testimony to stand. 2/4/99 a.m. Tr. at
41.

In closing argument, defense counsel conceded Evans' par-
ticipation in the two drug transactions. He argued, however,
that defendant had been unlawfully entrapped into participat-
ing. Although the district court gave instructions regarding

the entrapment defense, the jury returned a guilty verdict on
every count.

B

Defendant contends that Agent Darnell's testimony that
the FBI "had received ... information that Mr. Evans was
involved in drug trafficking" was inadmissible hearsay--that
is, "a statement, other than one made by the declarant while
testifying at the trial ..., offered in evidence to prove the
truth of the matter asserted." Fed. R. Evid. 801 (defining
hearsay); see Fed. R. Evid. 802 (making hearsay inadmissi-
ble). We review this allegation under the abuse of discretion
standard. See United States v. Clarke, 24 F.3d 257, 267 (D.C.
Cir. 1994).

The problem with hearsay is that it deprives the defendant
of the opportunity to cross-examine the person who uttered
the statement at issue. Here, the government presented
allegations of prior drug dealing, and the defendant was
unable to cross-examine the person who made them. At the
time of the testimony, that person--the less-than-reputable
convict, Thomas Rose--was sitting in a federal correctional
institution. Meanwhile in court, telling Rose's story, was the
clean-cut FBI agent, Neil Darnell. Thus, Evans had no
opportunity to "test[ ] the recollection and sift[ ] the con-
science" of his accuser, nor could he compel him "to stand
face to face with the jury in order that they [might] look at
him, and judge by his demeanor upon the stand and the
manner in which he [gave] his testimony whether he [was]
worthy of belief." California v. Green, 399 U.S. 149, 158
(1970) (quoting Mattox v. United States, 156 U.S. 237, 242-43
(1895)). Cross-examination may be the "greatest legal engine
ever invented for the discovery of truth," Green, 399 U.S. at
158, but it is not of much use if there is no one to whom it can
be applied.

The government contends that Darnell's statements did not
constitute hearsay because they were not "offered in evidence
to prove the truth of the matter asserted." Fed. R. Evid.
801(c). That is, they were not offered to prove that Evans

actually had been involved in drug trafficking. But if Dar-
nell's testimony about the FBI's "information" did not go to
the truth of that assertion, to what did it go? The trial
prosecutor said he offered the testimony to establish "why
they did what they did with George Rose." For testimony to
be admissible for any purpose, however, it must be relevant.
See Fed. R. Evid. 402. And to be relevant, it must have a
"tendency to make the existence of [a] fact that is of conse-
quence to the determination of the action more probable or
less probable than it would be without the evidence." Fed. R.
Evid. 401. How was "why they did what they did with
George Rose" related to such a fact of consequence? Three
possible, interconnected explanations can be inferred from the
government's appellate brief and oral argument. We consid-
er each in turn.

First, the government suggests that the testimony was
relevant to show that Evans had not been improperly target-
ed or selectively prosecuted--that is, it was offered to show
the state of mind of the FBI agents, rather than the truth of
the allegations upon which their state of mind was based.
While selective prosecution may qualify as an issue of conse-
quence in some proceedings, see generally United States v.
Washington, 705 F.2d 489, 494-95 (D.C. Cir. 1983), it was not
an issue in Evans' trial. Defendant did not raise such an
allegation through argument or testimony, nor did he "open
the door" to the matter through inferences made during
cross-examination. See United States v. Forrester, 60 F.3d
52, 60-61 (2d Cir. 1995); United States v. Reyes, 18 F.3d 65,
69-70 (2d Cir. 1994). Indeed, the hearsay at issue here was
elicited during the direct examination of the government's
first witness, before Evans had presented a case or even
begun to cross-examine. Moreover, when Evans eventually
did put on a defense, it was not selective prosecution but
entrapment. Hence, why the agents did what they did--i.e.,
the agents' motives for investigating Evans--never became a
fact of consequence to the determination of the action.

Approving the admission of Agent Darnell's testimony un-
der these circumstances would open a large loophole in the
hearsay rule. If we were to accept the government's ratio-

nale here, then explaining why government agents "did what
they did" through reference to statements of absent infor-
mants would be acceptable in almost any case involving an
undercover operation, and in many others as well. That is a
loophole this circuit has previously refused to open.

In United States v. Hilliard, a case involving an armed
robbery, government witnesses effectively told the jury that
"as a result of information ... obtained by the police," the
defendant's picture had been included in the photographic
array shown to the victim. 569 F.2d 143, 146 (D.C. Cir. 1977).
The defendant objected on the ground that this suggested
that information outside the record proved his guilt. This
court agreed, concluding that the prosecutor had violated the
hearsay rule by "insinuat[ing] that information obtained from
unknown witnesses identified the robber as [the defendant]."
Id. at 144. There, as here, the government argued that the
testimony was not hearsay because it had not been offered for
its truth. Rather, the government said, it had been "offered
merely to explain why the police took the action they did in
placing [the defendant's] picture in a photographic array."
Id. at 146. Speaking for the court, Judge Robb responded:

We reject this argument. There was no issue as to the
presence of [the defendant's] picture in the array, and
therefore no occasion for any explanation. In any event,
explanation of a photographic array cannot be allowed to
repeal the hearsay rule.

Id.; see United States v. Freeman, 514 F.2d 1314, 1317 (D.C.
Cir. 1975) (reversing conviction because, inter alia, police
testimony recounting witness tip was hearsay and inadmissi-
ble to explain why police went to defendant's house), vacated
on other grounds, 598 F.2d 306 (D.C. Cir 1979).1 The same
response is warranted in this case.

__________
1 See also United States v. Lovelace, 123 F.3d 650, 652-53 (7th
Cir. 1997) (finding admission of informant's tip unnecessary to
correct impression of racial bias because bias was not at issue in
case); Forrester, 60 F.3d at 59-61 (reversing conviction where
informant evidence was admitted to show officer's state of mind,
which was not "relevant to the determination of any material fact");

 The government's second relevance argument is that Agent
Darnell's testimony was necessary to combat the threat of
"jury nullification." We are not certain what the government
means by this contention. If this is just another way of
saying that the government did not want the jury to think it
had engaged in selective prosecution, we have already ad-
dressed the point above. It appears, however, that the
government may mean something more: that the testimony
was necessary to ensure that the jury did not miss the
context of the events and the moral significance of the
allegations, and thus render an unjustified acquittal. It is
true, of course, that as a general matter the prosecution is
entitled to present the "whole story" of criminal misconduct
in order to guard against just such an eventuality. See Old
Chief v. United States, 519 U.S. 172, 186-89 (1997); United
States v. Crowder, 141 F.3d 1202, 1207 (D.C. Cir. 1998) (en
banc). But in presenting that story, the government is as
much bound by the rules of evidence as it is on any other
issue. No matter how important it is for the government to
present a complete, morally compelling narrative, it must
present that narrative through admissible evidence, not
through hearsay.

Finally, the government contends that the evidence of "why
they did what they did" was relevant as "background"--
merely for the value of giving the jury a complete picture of
the events in question. Sometimes courts excuse the use of
hearsay evidence for background purposes where the evi-
dence is on an uncontroverted matter, where hearsay is the
most efficient means of transmitting it, and where there is
little chance of prejudice to the defendant. See generally
United States v. Gatling, 96 F.3d 1511, 1523-24 (D.C. Cir.
1996) (concluding that trial court's error in permitting wit-
nesses to testify about prior statements by nonparty wit-
nesses was "at most harmless" and served to "provide back-

__________
United States v. Johnson, 439 F.2d 885, 888-89 (5th Cir. 1971)
("The desire of the government to show the jury why its agents
were on the lookout for Johnson can in no way justify the use of
prejudicial hearsay.").

ground"). But where those conditions are not met--as they
are not here--the government must prove "background" the
same way it would any other set of relevant facts.

The government correctly notes that when the "back-
ground" being offered is the state of mind of the police, it is
technically not hearsay at all. See Gatling, 96 F.3d at 1524.
Nonetheless, to be admissible it must still be relevant, and if
"background" was related to a fact "of consequence to the
determination" of this case, it was only barely so. Even the
government concedes that the probative value of Agent Dar-
nell's statement as background was "not significant." Br. for
Appellee at 15.

At this point we must consider the role of Rule 403,
compliance with which we again review under the abuse of
discretion standard. See United States v. Davis, 181 F.3d
147, 151 (D.C. Cir. 1999). Under that Rule, evidence is
excluded "if its probative value is substantially outweighed by
the danger of unfair prejudice." Fed. R. Evid. 403. Regard-
less of the reason for which the court and the prosecutor
thought the evidence was being offered, the prejudice inquiry
asks whether "the jury [was] likely to consider the statement
for the truth of what was stated with significant resultant
prejudice." Reyes, 18 F.3d at 70. In this case, the answer is
yes: There was considerable danger that the jury would
consider the information about Evans' prior drug crimes for
its truth, and hence as evidence of his propensity to commit
the crimes with which he was charged.2 When that danger is
weighed against the insignificant probative value of the testi-
mony as background, the Rule 403 balance comes out clearly
against admission.3

__________
2 Such consideration would be improper not only under Rules
801 and 802, but also under Rule 404(b). The latter states that
"[e]vidence of other crimes ... is not admissible to prove the
character of a person in order to show action in conformity there-
with." Fed. R. Evid. 404(b); see Old Chief, 519 U.S. at 181-82.

3 See Lovelace, 123 F.3d at 653 (holding that admission of
informant's tip that defendant would have drugs at specified loca-
tion violated Rule 403, notwithstanding that it was offered to

 Moreover, the use of that testimony to establish propensity
was not the only danger in this case. As the trial judge
properly instructed the jury, one element of the entrapment
defense is a lack of predisposition on the part of the defen-
dant to commit the crime. See United States v. Glover, 153
F.3d 749, 754 (D.C. Cir. 1998). Agent Darnell's statement
could not permissibly have been used to establish predisposi-
tion, since the issue of predisposition goes to Evans' state of
mind (why he did what he did with George Rose), not to that
of the agents (why they did what they did with him). See
United States v. Webster, 649 F.2d 346, 349-50 (5th Cir. 1981)
(en banc). There was considerable risk, however, that the

__________
explain basis for police action); Reyes, 18 F.3d at 72 (reversing
conviction where "resulting prejudice from the receipt of ... in-
criminating [out-of-court] declarations was considerable and far
exceeded the minimal or non-existent probative value of the [decla-
rations'] non-hearsay uses" as background evidence); United States
v. Alonzo, 991 F.2d 1422, 1426-27 (8th Cir. 1993) (holding that if a
statement "is both permissible background and highly prejudicial,
otherwise inadmissible hearsay, fairness demands that the govern-
ment find a way to get the background into evidence without the
hearsay"); United States v. Mancillas, 580 F.2d 1301, 1310 (7th Cir.
1978) (holding that although giving "the jury a sense of the context
of the activities to be described may provide some incidental benefit
...[,] any such value ordinarily is substantially outweighed by the
danger of unfair prejudice"); 2 McCormick on Evidence s 249 (5th
ed. 1999) ("[Officers] should not ... be allowed to relate historical
aspects of the case, such as ... reports of others containing
inadmissible hearsay. Such statements are sometimes erroneously
admitted under the argument that the officers are entitled to give
the information upon which they acted. The need for this evidence
is slight, and the likelihood of misuse great."); cf. Gatling, 96 F.3d
at 1524 (upholding conviction where "any error that the court
made" in admitting out-of-court statements for background pur-
poses was harmlessly cumulative); Clarke, 24 F.3d at 267 (affirming
where admission of police background testimony, although "ques-
tionable," was harmlessly cumulative); United States v. Freeman,
816 F.2d 558, 563-64 (10th Cir. 1987) (finding no error where
admission of informant's statements for background purposes was
nonprejudicial).

jury would use the agent's testimony in that impermissible
way. Indeed, the prosecutor explicitly sought to use Dar-
nell's testimony to establish Evans' predisposition in his
closing argument. See 2/5/99 p.m. Tr. at 18-19. Although
the court correctly barred the government from making that
argument, it did not caution the jury against drawing the
connection on its own. In failing to do so, the court may have
committed error under Rules 801 and 802 by permitting the
jury to use the testimony for its truth. See Fed. R. Evid. 801,
802.4 In any event, without a limiting instruction, the risk
that Evans would be unfairly prejudiced by the jury's use of
the testimony for its truth substantially outweighed the testi-
mony's minimal value as background. See Webster, 649 F.2d
at 351; United States v. Catanzaro, 407 F.2d 998, 1000-01 (3d
Cir. 1969) (reversing conviction where jury may have used
hearsay statement as evidence of defendant's predisposition).

The danger of unfair prejudice was further compounded by
the instruction that was given to the jury. The entrapment
instruction informed the jury that "willingness to commit the
crimes may be shown in many ways, including by evidence of
the defendant's prior similar conduct." 2/5/99 p.m. Tr. at 37.
Since Agent Darnell's testimony that the FBI "had received
... information that Mr. Evans was involved" in prior drug
trafficking was certainly "evidence of the defendant's prior
similar conduct," the jury could reasonably have concluded
that this was the evidence to which the judge was referring.5
Thus, the jury was effectively instructed that it could use the
agent's testimony for its truth, in violation of Rules 801 and

__________
4 Cf. Reyes, 18 F.3d at 69 (holding that even where there have
been limiting instructions, "when the likelihood is sufficiently high
that the jury will not follow the limiting instructions, but will treat
the evidence as proof of the truth of the declaration, the evidence is
functionally indistinguishable from hearsay").

5 Darnell's testimony was not the evidence the court actually
had in mind when giving the instruction. See 2/5/99 p.m. Tr. at 20
(advising counsel that instruction "pertains to the defendant's ad-
mission with respect to the exportation of drugs and not testimony
from Agent Darnell"). The instruction, however, did not specify
which prior conduct it encompassed.

802.6 This, of course, also greatly increased the risk that the
jury would actually use the testimony for that impermissible
purpose, further compounding the error committed under
Rule 403.

In sum, we conclude that the admission of Special Agent
Darnell's testimony was error under the Federal Rules of
Evidence: under Rules 801 and 802 because the jury was
effectively told that the testimony could be used for its truth,
and under Rule 403 because the probative value of the only
relevant nonhearsay purpose--general background--was sub-
stantially outweighed by the danger of unfair prejudice.

C

In addition to constituting error under the Federal Rules,
the admission of Agent Darnell's testimony may have violated
Evans' rights under the Confrontation Clause. See U.S.
Const. amend. VI ("In all criminal prosecutions, the accused
shall enjoy the right ... to be confronted with the witnesses
against him...."). The purpose of that clause is to "ensure
the reliability of the evidence against a criminal defendant by
subjecting it to rigorous testing in the context of an adversary
proceeding before the trier of fact." Lilly v. Virginia, 527
U.S. 116, 123-24 (1999) (internal quotation omitted). As we
have already noted, such testing is not possible where, as
here, the government presents the testimony of an out-of-
court declarant through the mouth of another witness. See

__________
6 Under Rule 404(b), evidence of prior crimes is admissible to
prove the defendant's state of mind, and therefore his predisposi-
tion. See Fed. R. Evid. 404(b); United States v. Burkley, 591 F.2d
903, 921 (D.C. Cir. 1979). Like other facts, however, the prior
crimes must themselves be proven through admissible (non-
hearsay) evidence. See Webster, 649 F.2d at 349-50. As noted in
the text, Agent Darnell's testimony could not have been used to
prove that the prior crimes occurred (the truth of the matter
asserted), and hence had no relevance to the question of defendant
Evans' state of mind (predisposition). The most for which Darnell's
testimony could have been used would have been to establish his
state of mind--a fact not relevant to the state of mind of the
defendant. See id.

id. at 124 (citing California v. Green, 399 U.S. 149, 158
(1970)).

Nonetheless, not every use of hearsay violates the Confron-
tation Clause. "[W]here proffered hearsay has sufficient
guarantees of reliability to come within a firmly rooted excep-
tion to the hearsay rule, the Confrontation Clause is satis-
fied." White v. Illinois, 502 U.S. 346, 356 (1992); see also
Lilly, 527 U.S. at 124-25; Ohio v. Roberts, 448 U.S. 56, 66
(1980). In this case, the government has not suggested any
hearsay exception that might apply to Darnell's testimony.
Instead, it contends that Darnell's testimony was not hearsay
at all because it was not offered to prove the truth of the
matter asserted. If that contention were correct, there would
be no violation of Evans' confrontation rights. See Tennessee
v. Street, 471 U.S. 409, 414 (1985) (holding that the nonhear-
say aspect of a confession, not offered to prove its truth,
"raises no Confrontation Clause concerns"). As noted above,
however, the jury was effectively told that it could use the
evidence as proof of defendant's predisposition--i.e., for its
truth. That erroneous instruction, coupled with the admis-
sion of Darnell's testimony, may well have deprived Evans of
his right to confront his true accuser--Thomas Rose. See id.
(noting that had jury been asked to infer that defendant's
confession proved his participation in the crime, the evidence
would have been hearsay and Confrontation Clause concerns
would have been implicated); United States v. Jordan, 810
F.2d 262, 264 (D.C. Cir. 1987).

D

We need not resolve whether the error at issue in this case
violated only the Rules of Evidence, or whether it also ran
afoul of the Confrontation Clause. Because an error clearly
occurred, the dispositive question is whether it was harmless.
If it was, it cannot result in the reversal of Evans' convictions
regardless of how we classify it. See Fed. R. Crim. P. 52;
United States v. Olano, 507 U.S. 725, 731 (1993).

It is true that the distinction between constitutional and
nonconstitutional error can be quite important, since the
standards for testing whether such errors are harmless are

different. See O'Neal v. McAninch, 513 U.S. 432, 438 (1995);
Brecht v. Abrahamson, 507 U.S. 619, 622-23, 637-38 (1993).
The standard for determining whether a constitutional error
is harmless is whether it appears "beyond a reasonable doubt
that the error complained of did not contribute to the verdict
obtained." Chapman v. California, 386 U.S. 18, 24 (1967);
see Neder v. United States, 119 S. Ct. 1827, 1837 (1999). For
nonconstitutional errors, the standard is whether the error
did not have "substantial and injurious effect or influence in
determining the jury's verdict." Kotteakos v. United States,
328 U.S. 750, 776 (1946); see Brecht, 507 U.S. at 637.

In the instant case, however, the difference between the
standards does not matter because the error was harmless
under both. Although the jury could have used the hearsay
testimony to conclude that defendant had a propensity to
commit the charged drug offenses, Evans conceded that he
committed those offenses, thereby removing the question of
propensity from the case. Rather than contest that he sold
drugs to George Rose, Evans claimed he was entrapped. The
entrapment defense comprises two elements: "government
inducement of the crime, and a lack of predisposition on the
part of the defendant to engage in the criminal conduct."
Mathews v. United States, 485 U.S. 58, 63 (1988); see Glover,
153 F.3d at 754. While the admission of Agent Darnell's
testimony could have been prejudicial with respect to predis-
position, the jury does not consider predisposition unless the
defendant has first satisfied the burden of showing govern-
ment inducement. See Glover, 153 F.3d at 754 ("[T]he defen-
dant bears the initial burden of showing government induce-
ment; if he is successful, the burden then shifts to the
government to prove the defendant was predisposed to com-
mit the crime."); United States v. Whoie, 925 F.2d 1481, 1485
(D.C. Cir. 1991). Evans' jury was instructed accordingly.
See 2/5/99 p.m. Tr. at 37. Hence, the key question is whether
the defendant presented sufficient evidence of inducement.

At oral argument, Evans' counsel conceded that the evi-
dence of inducement was "slight." We see none at all.
"Even when a government agent repeatedly requests that the
defendant engage in criminal conduct, inducement is not

established unless the requests are coupled with persuasive
overtures." United States v. McKinley, 70 F.3d 1307, 1312
D.C. Cir. 1995). The only "persuasive overture" proffered by
defense counsel was Evans' claim that he provided the drugs
because he and Thomas Rose "had a good friendship." Al-
though we have in the past indicated that "pleas based on ...
friendship" can satisfy the inducement prong of an entrap-
ment defense, we have never found such a plea sufficiently
strong to do so. United States v. Layeni, 90 F.3d 514, 517
(D.C. Cir. 1996); see, e.g., Glover, 153 F.3d at 755; McKinley,
70 F.3d at 1314.

But here there was no plea to friendship at all. According
to Evans' own account, his friend, Thomas Rose, "never
mentioned" drugs to him. 2/5/99 a.m. Tr. at 124. Rather, he
"just asked me to look out for [his uncle], show him around
the city." Id. at 123. Evans does not contend that this
constituted an implied request to provide George Rose with
drugs. To the contrary, defendant testified that he had not
expected his friend's uncle to bring up the subject. See id. at
111. Hence, even accepting defendant's version of the facts,
it establishes only that he independently decided to provide
the drugs out of friendship for George Rose's nephew--not
because of any plea from that nephew. This is insufficient to
raise a jury question as to inducement, and because the jury
was correctly instructed that inducement is a prerequisite for
entrapment, defendant's entrapment defense necessarily
failed for want of proof. See McKinley, 70 F.3d at 1309.
Indeed, under these circumstances, defendant was not enti-
tled to an entrapment instruction in the first place. See
Glover, 153 F.3d at 755; McKinley, 70 F.3d at 1309. Because
entrapment was Evans' only defense (given his concession to
having participated in the charged drug transactions), we can
say with certainty that the erroneous admission of Agent
Darnell's testimony did not contribute to the result in this
case.

III

The other issues raised on appeal require only brief discus-
sion. In his opening brief, Evans' principal claim was that

the trial judge committed reversible error by denying his
request to strike a potential juror for cause. Evans ultimate-
ly used a peremptory challenge to strike the juror, who was
not seated. After the opening brief was filed, the Supreme
Court decided United States v. Martinez-Salazar, which held
that a defendant cannot assert error after using a peremptory
challenge to remove a juror who he alleges should have been
excused for cause. See 120 S. Ct. 774, 782 (2000). Evans
concedes that Martinez-Salazar resolves this claim.

Second, Evans contends that he should have received the
benefit of the "safety valve" provisions of the federal sentenc-
ing guidelines, which would have allowed him to obtain a
sentence below the statutory minimum of 120 months. See
U.S.S.G. s 5C1.2; see also 18 U.S.C. s 3553(f); 21 U.S.C.
s 841(b). For a defendant to receive the benefit of the safety
valve, the trial court must find, inter alia, that "the defendant
has truthfully provided to the Government all information and
evidence the defendant has concerning the offense or offenses
that were part of the same course of conduct." U.S.S.G.
s 5C1.2(5). The court declined to make that finding, and
there is more than sufficient evidence in the record to support
the court's decision. Compare, e.g., 5/14/99 Tr. at 10 (de-
fense's contention that Evans did not know the names of the
two men who supplied the drugs for the charged transac-
tions), with id. at 33 (court's conclusion that taped conversa-
tions showed Evans knew "fully what the nature and source
of supply was ... and whom he has been dealing with and
whom he has done other transactions with").

Finally, Evans argues that he should have received a
downward departure from the applicable guideline range due
to extraordinary family circumstances. Our review of a
denial of a downward departure is limited. See In re Sealed
Case, 199 F.3d 488, 490 (D.C. Cir. 1999); United States v.
Leandre, 132 F.3d 796, 800 (D.C. Cir. 1998). Although Evans
contends that the district court erroneously thought itself
without authority to depart, the record reveals that the court
knew it had the authority but that it concluded a departure
was unwarranted after examining the relevant circuit prece-
dents. See 5/14/99 Tr. at 33-34. We again concur with the

district court and find no error in its decision. See Leandre,
132 F.3d 796; United States v. Dyce, 91 F.3d 1462 (D.C. Cir.
1996).

IV

In closing, we take this opportunity to make a suggestion
similar to one made by the Second Circuit in analogous
circumstances. See United States v. Reyes, 18 F.3d 65, 72 (2d
Cir. 1994). The analysis that has led us to conclude that the
agent's testimony was improperly admitted is complicated,
and we are well aware that trial courts do not have the
opportunity we do to explore such intricacies at length. In
this case, as in many, the issue arose without warning in the
form of an objection to a question that the examiner had
already posed. If the trial was not to be disrupted, the court
had to resolve the issue on the spot without benefit of
research. Yet, had the error not been harmless, its prejudi-
cial impact would have required reversal of Evans' convic-
tions.

When the government wishes to offer incriminating evi-
dence of uncertain admissibility, these kinds of risks can be
obviated through the submission of a motion in limine (writ-
ten or oral) prior to the offer and before the jury is seated for
the session at which the offer is to be made. In some
situations, such advance notice is required by the Federal
Rules. See Fed. R. Evid. 404(b).7 Even where it is not, this
procedure would advance the government's dual interests in
ensuring that defendants are accorded justice at trial, while
protecting the integrity of verdicts on appeal.

__________
7 Rule 404(b) provides that, with respect to evidence of "other
crimes, wrongs, or acts,"

upon request by the accused, the prosecution in a criminal case
shall provide reasonable notice in advance of trial, or during
trial if the court excuses pretrial notice on good cause shown, of
the general nature of any such evidence it intends to introduce
at trial.

Fed. R. Evid. 404(b). Although there may have been a Rule 404(b)
violation here, defendant has not alleged one.

In the case of Cornell Evans, although we find that error
occurred, we also find that the error was harmless. Accord-
ingly, defendant's convictions and sentence are affirmed.