Harmless-Error Affirmance for Excluded “Effect on Listener” Statements in § 913 DEA-Impersonation Prosecutions

1. Introduction

In United States v. Khriy Sherrod Simon (4th Cir. Apr. 24, 2026) (unpublished), the Fourth Circuit affirmed a jury conviction under 18 U.S.C. § 913 for detaining and searching another person and property while impersonating a Special Agent of the Drug Enforcement Administration (DEA).

The prosecution arose from a parking-lot encounter at a PetSmart in Greensboro, North Carolina, where the defendant—masked, wearing a bullet-proof vest, and acting aggressively—blocked two women’s vehicle, demanded compliance, took IDs, ordered them out, and searched the car and trunk. The central factual dispute was whether he identified himself as “DEA” (as the victims testified) or “BEA” (which he claimed meant “bail enforcement agent/agency” as part of work for a bail bondsman).

On appeal, Simon raised two issues: (1) sufficiency of the evidence on impersonation, detention, and search under § 913; and (2) whether the district court improperly excluded, as hearsay, his testimony about out-of-court instructions allegedly given by the bondsman (Brown), which he argued were offered for their effect on the listener rather than for truth.

2. Summary of the Opinion

The Fourth Circuit affirmed on both grounds. It held that the evidence—viewed in the government’s favor—was sufficient for a reasonable jury to find Simon impersonated a DEA agent while detaining and searching the victims. Separately, the court declined to decide whether exclusion of the bondsman’s statements was error because any error was harmless under the circuit’s nonconstitutional harmless-error framework, emphasizing that other testimony and circumstances substantially corroborated the defense theory and that the overall case was not “close.”

3. Analysis

A. Precedents Cited

  • United States v. Gallagher, 90 F.4th 182 (4th Cir. 2024)
    • Sequencing principle: The court addressed sufficiency first because, if the defendant prevailed, “none of the other issues matter.” This frames sufficiency as a threshold appellate inquiry.
    • Sufficiency standards: Gallagher supplied the “heavy burden” language and the requirement that the court “assume the jury resolved all credibility disputes” for the government, and defined “substantial evidence.”
    • Harmless error test: Gallagher provided the nonconstitutional harmless-error test (“highly probable” the error did not affect the judgment) and the three-factor framework: (1) centrality; (2) mitigation steps; (3) closeness of the case—stating the “closeness” factor is the most important.
    • Hearsay principle: Gallagher was also quoted for the definition of hearsay and the “effect on the listener” doctrine—statements offered to show state of mind or reasonableness/good faith are not hearsay because their relevance does not depend on truth.
  • United States v. Jones, 166 F.4th 428 (4th Cir. 2026)
    • Standards of review: Jones supplied the de novo review standard for denial of a motion for acquittal and the abuse-of-discretion standard for evidentiary rulings (reversible only if “arbitrary and irrational” or based on erroneous principles/clearly erroneous facts).
    • Harmless error overlay: Jones reinforced that even if the evidentiary ruling were erroneous, reversal requires the error not be harmless.
  • Fed. R. Evid. 801(c)(2)
    • Used to anchor the hearsay definition: an out-of-court statement offered “to prove the truth of the matter asserted.” This was critical to framing Simon’s argument that the excluded instructions were offered for effect on him, not for truth.

B. Legal Reasoning

1) Sufficiency of the Evidence under 18 U.S.C. § 913

The panel treated the key trial dispute as credibility-driven: whether Simon said “DEA” or “BEA.” Applying the sufficiency lens, the court deferred to the jury’s credibility determinations and held it could credit the victims over Simon.

Importantly, the court also identified circumstantial evidence supporting impersonation beyond the literal three-letter acronym: Simon’s intimidating attire (mask, bullet-proof vest), aggressive commands (hands on dash, car in park), control of movement (blocking the vehicle), seizure of identification, removal of occupants, and search of interior and trunk— all consistent with asserting law-enforcement authority.

The court rejected the defense suggestion that, even if he impersonated an “officer,” it might have been nonfederal. It reasoned that Simon referenced suspected drug and homicide activity—making invocation of the DEA (a commonly known federal agency focused on drug enforcement) contextually coherent, and allowing the jury to infer he used “DEA” to discourage resistance or questioning.

2) Exclusion of Out-of-Court Instructions and Harmless Error

Simon argued the bondsman’s statements were admissible non-hearsay because they were offered for their effect on the listener (his state of mind and claimed good-faith belief he was doing bail-enforcement work). The Fourth Circuit sidestepped whether the district court misapplied hearsay law because it found any error harmless under United States v. Gallagher.

Applying the Gallagher factors:

  • Centrality: favored Simon, because the excluded instructions could bolster his “BEA” narrative and relate to elements of the charged offense.
  • Mitigation: favored the government, because the defense was not left solely with Simon’s “self-serving” testimony. Brown testified he was a licensed bondsman and that Simon worked for him as an independent contractor. The victims’ testimony also corroborated pieces of the “boss” story (the phone call, the arrival of a Dodge Charger, and Simon’s consultation before releasing them).
  • Closeness (most important): favored the government. The court emphasized that the case did not hinge exclusively on whether the jury believed “BEA” versus “DEA.” Even if Simon had some bail-enforcement connection, the jury could still find that his conduct—detaining and searching civilians with intimidation, while presenting as law enforcement—supported the § 913 impersonation theory. The opinion also highlighted weaknesses in the defense narrative: Simon did not frame the encounter as “failure to appear” or a bail-related purpose to the victims, and Brown claimed he did not instruct contractors to detain or search individuals.

The court therefore concluded it was “highly probable” any exclusion error did not affect the verdict.

C. Impact

Although unpublished and expressly “not binding precedent,” the decision has practical, persuasive implications in three areas:

  1. § 913 proof can be built from “authority-signaling” conduct plus context: The opinion underscores that a jury may infer impersonation of a specific federal agent not only from explicit verbal identification (“DEA”), but also from the defendant’s attire, commands, detention tactics, and the investigative narrative invoked (drug-related suspicion pointing toward the DEA).
  2. “Effect on the listener” disputes may be resolved on harmlessness: Even where an appellant presents a plausible non-hearsay theory, the panel signals that reversal may be unlikely if the defense theory is otherwise corroborated and the case is not close under Gallagher’s framework.
  3. Harmless-error analysis is outcome-determinative: The opinion illustrates how appellate courts may avoid definitively resolving contested evidentiary classifications when the record supports affirmance under nonconstitutional harmless-error review—especially where “closeness” weighs against the defendant.

4. Complex Concepts Simplified

  • Sufficiency of the evidence: The appellate court does not ask whether it would convict; it asks whether, viewing the evidence in the government’s favor, a reasonable jury could convict.
  • De novo review: The appellate court reviews the sufficiency question fresh, but still gives the government the benefit of the jury’s credibility choices.
  • Abuse of discretion (evidence rulings): A trial judge’s evidentiary decision is reversed only if it is based on a wrong legal rule, a clearly wrong factual premise, or is arbitrary/irrational.
  • Hearsay vs. non-hearsay “effect on the listener”: If a statement is offered to prove it was said and that it influenced the listener’s state of mind or later conduct—rather than to prove the statement was true—it is generally not hearsay.
  • Harmless error (nonconstitutional): Even if the judge made an evidentiary mistake, the conviction stands if it is highly likely the mistake did not affect the verdict. The most important question is whether the case was “close.”

5. Conclusion

United States v. Khriy Sherrod Simon affirms a § 913 conviction by emphasizing (1) the breadth of “substantial evidence” supporting impersonation when a defendant’s words, attire, and conduct collectively project federal law-enforcement authority, and (2) the decisive role of Gallagher harmless-error analysis in evidentiary disputes, particularly where corroborating testimony exists and the case is not close. While unpublished, the opinion offers a clear roadmap for how the Fourth Circuit may evaluate § 913 impersonation evidence and how it may affirm despite contested hearsay exclusions when the verdict appears well-supported.