United States v. Maurice Kent
U.S. Court of Appeals for the Eleventh Circuit
United States v. Maurice Kent
Opinion
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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13068
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MAURICE ANTONIO KENT,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 4:17-cr-00039-JPB-WEJ-1
____________________
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2 Opinion of the Court 22-13068
Before WILSON, JILL PRYOR, and BRASHER, Circuit Judges.
BRASHER, Circuit Judge:
This appeal concerns the circumstances in which a police of-
ficer’s statement that recounts witness statements that implicate
the defendant in a crime may be offered at a criminal trial for a non-
hearsay purpose.
Maurice Kent was a member of a violent gang. The govern-
ment charged Kent with RICO conspiracy and five substantive
crimes, including the attempted murder of Shadeed Muhammad.
As an overt act of the RICO conspiracy, the government alleged
that the gang murdered a former gang member, Qualeef Rhode,
for cooperating with the police’s investigation into the attempted
murder of Muhammad. Specifically, the government’s theory was
that Kent and other gang members believed that Rhodes told the
police that Kent had attempted to murder Muhammad and, then,
murdered Rhodes for that reason.
To support this theory, the government introduced an in-
vestigator’s testimony from a preliminary hearing in a related case,
which identified Rhodes as cooperating with law enforcement to
implicate Kent in the attempted murder of Muhammad. By offer-
ing 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.
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Kent argues that this testimony was hearsay, and its admis-
sion violated his Confrontation Clause rights. Our caselaw has in
at least two instances deemed inadmissible law enforcement testi-
mony about witness statements, even when offered for non-hear-
say purposes. See United States v. Arbolaez, 450 F.3d 1283, 1290 (11th
Cir. 2006); United States v. Rodriguez, 524 F.2d 485, 487 (5th Cir.
1975). But we agree with the district court that the testimony in
this case was admissible. It was not hearsay because it was offered
for the effect it had on the listeners and not for the truth of the
matter asserted. The testimony was indisputably relevant for that
purpose. And we believe the district court took sufficient steps to
ensure that the jury did not consider these out-of-court statements
as substantive evidence of Kent’s guilt on the charge of attempting
to murder Muhammad. Accordingly, we affirm.
I.
Maurice Kent was a leader in an Atlanta-area chapter of the
135 Piru gang. During a weekend when members of various chap-
ters of the gang gathered in the Atlanta area, multiple gang mem-
bers went to a nightclub and a fight broke out inside the club and
moved into the parking lot. During the fight in the parking lot,
Shadeed Muhammed, a member of a different chapter of the gang,
and security guard Charles Smith were shot.
Maurice Kent rode to the nightclub with his girlfriend
Charne Darden. Kent’s younger brother Malique Dixon and a
member of a different chapter of the gang Qualeef Rhodes were
also in the car. None of them entered the club, but Kent, Dixon,
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and Rhodes exited the car and went towards the fight when it con-
tinued in the parking lot.
Kent returned to Darden’s car holding a firearm and with a
bullet wound in his leg. As Kent entered the car, bullets struck the
vehicle, and Kent discharged his firearm. As Darden drove away
from the scene, officers observed Kent throw an object out of the
window and Rhodes run alongside the car. The officers eventually
trapped the car and found a firearm with Kent’s DNA and finger-
prints on it close to where Kent threw an object out of the car. In-
vestigators also found shell casings in Darden’s car and in the park-
ing lot that matched that gun. Police took Dixon, Darden, and
Rhodes to headquarters to question them but later released them.
Kent was taken to a hospital to treat his gunshot wound and then
booked in DeKalb County Jail.
Kent had a preliminary hearing in the county magistrate
court about three weeks after the shooting. His mother, twin
brother Michael, and two other gang members, Alexyeus Harris
and Naja Finch, attended the hearing. At the hearing, an investiga-
tor testified that Rhodes told police he was in the vehicle with Kent
at the nightclub, that he knew Kent from social media, and that
Kent was the shooter.
When Kent returned to the jail that afternoon, he spoke
with Michael and Harris about Rhodes’s cooperation with the po-
lice. Kent told Michael to contact Christopher Nwanjoku, a fellow
gang member, to order all gang members to take down their social
media because Rhodes spoke with police. Michael told Kent he
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22-13068 Opinion of the Court 5
knew Rhodes “said everything” and later called Nwanjoku and
other gang members to discuss Rhodes and his whereabouts.
Two days later, Nwanjoku and other gang members met to
discuss Rhodes’s statements to the police. The gang members de-
vised and executed a plan to kill Rhodes. The gang members who
killed Rhodes reported the killing to Nwanjoku a few hours after it
was done.
Kent and his four codefendants were indicted and charged
with RICO conspiracy. Kent was also charged with five other sub-
stantive crimes, including the attempted murder of Muhammed.
The indictment also listed the nightclub shooting and Rhodes’s
murder as overt acts of the RICO conspiracy.
Kent filed a motion in limine to prohibit the government
from introducing a transcript and recording of the investigator’s
testimony that Rhodes identified Kent as the shooter at the night-
club. He argued that the testimony was hearsay, and its admission
would violate his Confrontation Clause rights. The government re-
sponded that the statements were not hearsay because they were
being offered to prove the effect they had on Kent and the others
in the audience at the hearing, i.e., after learning that Rhodes had
apparently cooperated with police, Kent and other gang members
directed and carried out Rhodes’s killing.
The district court agreed the testimony was not hearsay but
granted the motion in limine in part to redact any statements that
identified Kent as the shooter. The court admitted the investiga-
tor’s testimony that Rhodes identified Kent as being in Darden’s
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6 Opinion of the Court 22-13068
car in the parking lot, that Kent got out of the car when they heard
the fight, that Rhodes ran alongside the car after the shooting, and
that, before that night, Rhodes knew of Kent only through social
media. The district court also instructed the jury to consider the
testimony only for the effect it had on the listeners in the court-
room and not to determine whether Kent engaged in the conduct
described.
The jury convicted Kent on all counts, and the district court
sentenced him to a combined sentence of 40 years. Kent timely ap-
pealed.
II.
We review for an abuse of discretion the district court’s de-
cision to admit statements over a hearsay objection. See Arbolaez,
450 F.3d at 1289(citing United States v. Cunningham,194 F.3d 1186, 1195
(11th Cir. 1999)). But we review de novo constitutional ques-
tions, like whether that testimony violates the Confrontation
Clause. See United States v. Underwood, 446 F.3d 1340, 1345 (11th Cir.
2006) (citing United States v. Brown, 364 F.3d 1266, 1268 (11th Cir.
2004)).
III.
Kent argues that the investigator’s testimony was inadmissi-
ble hearsay because it was offered for the truth of the matter as-
serted, i.e., that Kent was the shooter at the nightclub. He says that,
because the testimony was inadmissible hearsay, its admission vio-
lated his rights under the Confrontation Clause because he had no
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opportunity to cross examine the investigator or Rhodes. The gov-
ernment argues that the testimony was not hearsay because it was
offered to establish the effect it had on the gang members who at-
tended the preliminary hearing and, because it was not hearsay, it
could not violate Kent’s rights under the Confrontation Clause. We
agree with the government.
We have “long recognized that statements by out of court
witnesses to law enforcement officials may be admitted as non-
hearsay if they are relevant” for a non-hearsay purpose and “the
probative value of the evidence’s non-hearsay purpose is not sub-
stantially outweighed by the danger of unfair prejudice caused by
the impermissible hearsay use of the statement.” United States v.
Jiminez, 564 F.3d 1280, 1288 (11th Cir. 2009) (cleaned up). Under
our caselaw, a court confronted with an out-of-court statement
should ask (1) whether that statement is offered for a non-hearsay
purpose, (2) whether that non-hearsay purpose is relevant, and (3)
whether the probative value of the evidence is substantially out-
weighed by any unfair prejudice that would arise from admitting
it. We will walk through each step in turn.
First, we must inquire whether this out-of-court statement
is hearsay under Rule 801(c). “Hearsay is a statement, other than
one made by a declarant while testifying at trial, offered in evidence
to prove the truth of the matter asserted.” United States v. Rivera,
780 F.3d 1084, 1092 (11th Cir. 2015) (citing Fed. R. Evid. 801(c)).
Thus, an out-of-court statement that is offered for a purpose other
than proving the truth of the matter—such as the effect a statement
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8 Opinion of the Court 22-13068
had on a listener—is not hearsay and not subject to exclusion on
that basis. See id.
It is clear on this record that both parts of this out-of-court
statement—Rhodes’s statements to the investigator and the inves-
tigator’s testimony at the preliminary hearing—were offered to
prove something other than the truth of the matter asserted. The
government offered the officer’s testimony about Rhodes’s puta-
tive cooperation as evidence that Kent and the other gang mem-
bers had a motive to murder Rhodes. That is, the investigator’s tes-
timony was relevant because it influenced Kent and the other gang
members who heard that testimony at the preliminary hearing.
The government did not seek to introduce this evidence as proof
that Kent in fact attempted to murder Muhammad. Instead, under
the government’s theory, it was of no consequence whether
Rhodes’s statements to police or the investigator’s testimony about
those statements were true.
Because these statements were not hearsay, Kent’s Confron-
tation Clause argument necessarily fails. The Confrontation Clause
provides, “[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him.” U.S.
Const. amend. VI. This Court has explained that “[t]here can be no
doubt that the Confrontation Clause prohibits only statements that
constitute impermissible hearsay.” Jiminez, 564 F.3d at 1286. Ac-
cordingly, the Confrontation Clause “does not bar the use of testi-
monial statements for purposes other than establishing the truth of
the matter asserted.” Crawford v. Washington, 541 U.S. 36, 59 n.9
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22-13068 Opinion of the Court 9
(2004) (citing Tennessee v. Street, 471 U.S. 409, 414 (1985)). Because
the investigator’s testimony at the preliminary hearing was not
hearsay, its admission did not violate Kent’s rights under the Con-
frontation Clause.
Second, we must ask whether the statement’s non-hearsay
purpose was relevant. See Fed. R. Evid. 401. Just as a party cannot
introduce irrelevant evidence generally, a party cannot launder
hearsay into a trial by offering it for an irrelevant non-hearsay pur-
pose. See, e.g., United States v. Yousef, 327 F.3d 56, 157 (2d Cir. 2003)
(explaining that “whether proffered as hearsay or non-hearsay” the
evidence at issue “was irrelevant and, hence, inadmissible under
Rule 402”), overruled in part on other grounds by Montejo v. Louisiana,
556 U.S. 778, 797 (2009).
We agree with the district court that the out-of-court state-
ments in this case were relevant for a non-hearsay purpose. Indeed,
this testimony was central to the government’s effort to prove that
the gang murdered Rhodes. In addition to this statement, the gov-
ernment also presented evidence that, after the hearing, Kent
spoke to gang members who attended the hearing about Rhodes’s
cooperation with the police. Kent directed them to talk to a third
gang member about Rhodes’s cooperation. The government pre-
sented evidence that, a few days later, gang members devised and
carried out a plan to kill Rhodes because they believed he was co-
operating with the police. There is no dispute that evidence that
tends to prove a defendant’s motive to murder is relevant in a case
about that murder. See, e.g., United States v. Clark, 988 F.2d 1459,
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1465 (6th Cir. 1993) (holding that evidence of a defendant’s motive
for a murder is relevant).
Kent erroneously argues that our decisions in Arbolaez, 450
F.3d 1283, and Rodriguez,524 F.2d 485
, require us to reverse the
district court. In both cases, an agent sought to testify about wit-
ness statements that implicated the defendants in criminal actions
for the purported non-hearsay purpose of explaining why the agent
took certain actions. We held that the agents’ testimony was inad-
missible. See Arbolaez, 450 F.3d at 1290; Rodriguez,524 F.2d at 487
.
In Arbolaez, we relied on Rodriguez to hold that “the details of state-
ments received by a government agent and later used as the basis
for an affidavit in support of a search warrant, even when purport-
edly admitted not for the truthfulness of what the informant said
but to show why the agent did what he did after he received that
information, constitutes inadmissible hearsay.” Arboleaz, 450 F.3d
at 1290(cleaned up) (quoting Rodriguez,524 F.2d at 487
).
We do not read Arboleaz or Rodriguez to establish a bright-
line rule that forbids the introduction of an agent’s testimony about
a witness’s statements that implicate the defendant. Instead, the
problem in both Arboleaz and Rodriguez was that the government
sought to introduce an out-of-court statement for an irrelevant non-
hearsay purpose. The agents’ reasons for acting were not at issue
in either case, so it did not matter that the agents acted because of
witness statements. The only relevant purpose for introducing the
agents’ statements in Arboleaz and Rodriguez was a hearsay purpose;
the statements were therefore hearsay. Here, on the other hand,
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22-13068 Opinion of the Court 11
the detective’s testimony regarding Rhodes’s statements to police
was relevant because of that testimony’s effect on the listeners—to
prove why Kent and his fellow gang members directed and carried
out Rhodes’s killing.
Contrary to Kent’s reading of Arboleaz and Rodriguez, our
precedent confirms that a witness’s out-of-court statement to a po-
lice officer may be admissible if offered for a relevant non-hearsay
purpose. For example, in Jiminez, we held that a detective’s testi-
mony that a defendant’s brother implicated the defendant in a drug
operation was admissible to explain the detective’s later course of
action. Jiminez, 564 F.3d at 1287. The testimony was admissible be-
cause it was offered in response to the defendant’s suggestion that
the detective lied about the reason he re-interviewed the defend-
ant’s brother—a relevant non-hearsay purpose under Rule 401. Id.
We thus acknowledged that inculpatory evidence, including testi-
mony from a government agent regarding witness statements,
may be admissible if it is relevant for a non-hearsay purpose.
Third, having determined that there was a relevant non-
hearsay purpose for this out-of-court statement, we must ask
whether the probative value of that evidence “is substantially out-
weighed by a danger of . . . unfair prejudice, confusing the issues,
misleading the jury” or the like. Fed. R. Evid. 403. When we speak
of “unfair prejudice,” we mean “an undue tendency to suggest de-
cision on an improper basis.” See Old Chief v. United States, 519 U.S.
172, 180 (1997) (quoting Fed. R. Evid. 403 advisory committee’s
note to 1972 proposed rule). With respect to an out-of-court
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12 Opinion of the Court 22-13068
statement, the typical risk of unfair prejudice is that the jury could
consider the statement for the truth of the matter asserted, even if
it has been introduced for a non-hearsay purpose. Accordingly, a
court should usually mitigate this risk by instructing the jury about
how to consider the evidence. Nonetheless, we have recognized
that, sometimes, the risk is so great that no limiting instruction can
adequately eliminate it. See Rodriguez, 524 F.2d at 487.
Here, we are convinced that the district court sufficiently re-
duced the risk that the jury would improperly consider this out-of-
court statement for the truth of the matter asserted. The district
court redacted the most prejudicial portions of the investigator’s
testimony that identified Kent as the shooter at the nightclub. The
district court also instructed the jury to consider the testimony only
for the effect it had on the listeners who attended the preliminary
hearing. On these facts, the district court was within its discretion
to conclude that the probative value of the testimony it admitted
was not substantially outweighed by any unfair prejudice to Kent.
IV.
The district court is AFFIRMED.
Reference
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