United States v. Zenni
42 F.Supp. 464 (1980)

Facts: While officers were searching D’s apartment pursuant to a valid search warrant, they answered many phone calls which asked them to place bets on sporting events.  Prosecution wanted to introduce to evidence as implied assertion that callers believed that D’s place was used for betting.  D objects and argues that these phone calls are hearsay.

Issue: Can implied assertions be admitted?

Holding: Yes

Rationale:  Even though under common law implied assertions were excluded, but under Federal Rules, the matter is different.  Rule 801 excludes out-of-court statements and a statement is an oral or written assertion or a nonverbal conduct of a person intended by him as an assertion.  But here, the callers conduct was not intended to make any assertions.  Therefore, these calls don’t fall under the hearsay rule and are admissible.