UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

EVANS, CORNELL


99-3068a

D.C. Cir. 2000


*	*	*


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


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


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


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


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


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


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.




__________

n 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-




__________

n 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




__________

n 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 




__________

n 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


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 




__________

n 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


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 




__________

n 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,


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


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, 


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


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.




__________

n 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.