Non-Hearsay “Effect on Listener” Informant Statements and Text-Based Attempted Drug Deals as Relevant Conduct

1. Introduction

In United States v. Demetris Bellamy (11th Cir. May 20, 2026) (per curiam) (not for publication), the Eleventh Circuit affirmed Demetris Gervone Bellamy’s convictions and 260-month total sentence arising from a drug bust that yielded a firearm, a digital scale, multiple phones, and substantial quantities of methamphetamine and cocaine. Bellamy was convicted of (i) being a felon in possession of a firearm, (ii) possessing with intent to distribute 50 grams or more of methamphetamine, and (iii) possessing a firearm in furtherance of a drug trafficking crime; he was acquitted of a separate cocaine-distribution count.

The appeal presented three core issues:

  • Evidence/Hearsay: Whether an officer’s testimony about a confidential informant’s out-of-court statements was inadmissible hearsay.
  • Confrontation Clause: Whether that testimony—if “testimonial”—violated the Sixth Amendment because the informant did not testify.
  • Sentencing/Relevancy: Whether the district court wrongly included drug quantities from uncharged transactions reflected in text messages (and a prior informant purchase history) as “relevant conduct” in the Guidelines calculation.

The panel rejected each challenge, holding that (1) the informant-statement testimony was non-hearsay because it was offered to explain police actions (i.e., why surveillance focused where it did), (2) non-hearsay does not implicate the Confrontation Clause, and (3) uncharged, text-referenced drug trafficking—including attempted transactions and transactions involving different drugs—may qualify as “relevant conduct” when sufficiently similar, regular, and temporally proximate to the offense of conviction.

2. Summary of the Opinion

The Eleventh Circuit affirmed both convictions and sentence. On evidentiary issues, the court concluded Lieutenant Rob Picciotti’s testimony about the confidential informant’s statement was not hearsay because it was offered for a non-truth purpose: to explain investigative focus and background. Consequently, the testimony did not trigger the Confrontation Clause.

On sentencing, the court held the district court did not clearly err in treating as relevant conduct the additional drug transactions described in Bellamy’s texts (and related quantities), even though the government could not confirm that every texted transaction was completed and even though multiple drug types were involved. The court emphasized the “similarity, regularity, and temporal proximity” framework and relied on Guidelines provisions regarding grouping and drug-trafficking offenses, including attempts.

3. Analysis

3.1. Precedents Cited

Evidentiary standard of review and hearsay framework

  • United States v. Carter, 158 F.4th 1319, 1327 (11th Cir. 2025)

    The court cited Carter for the abuse-of-discretion standard governing evidentiary rulings and de novo review for Confrontation Clause questions. This split standard shapes appellate outcomes: a defendant must show not merely error, but an unreasonable evidentiary call, while constitutional applicability is reviewed fresh.

  • United States v. Holley, 166 F.4th 139, 148 (11th Cir. 2026)

    Holley was used for the black-letter definition of hearsay under Fed. R. Evid. 801(c): an out-of-court statement offered “to prove the truth of the matter asserted.” This anchors the court’s threshold move: if the statement is not offered for truth, it is not hearsay.

  • United States v. Kent, 93 F.4th 1213, 1218 (11th Cir. 2024)

    The opinion draws from Kent a three-part test for admitting out-of-court statements as non-hearsay: (1) offered for a purpose other than truth, (2) relevant non-hearsay purpose, and (3) probative value not substantially outweighed by unfair prejudice (a Rule 403-type balance). Kent also supplies a key Confrontation Clause bridge: “to implicate the Confrontation Clause, a testimonial statement must also be hearsay.”

Confrontation Clause doctrine

  • Crawford v. Washington, 541 U.S. 36, 51, 53-54 (2004)

    The court cited Crawford for the principle that the Confrontation Clause bars introduction of an absent witness’s out-of-court statements when those statements are “testimonial,” absent prior opportunity for cross-examination and unavailability requirements. But the panel emphasized that Crawford is only implicated when the evidence is hearsay.

  • United States v. Jiminez, 564 F.3d 1280, 1286 (11th Cir. 2009)

    Cited via Kent, Jiminez supports the Eleventh Circuit’s doctrinal sequencing: even if a statement seems “testimonial,” the Sixth Amendment is not triggered unless the statement is introduced for its truth (i.e., hearsay). This is decisive in the panel’s “non-hearsay ends the inquiry” approach.

Sentencing: relevant conduct, proof burdens, and standards of review

  • United States v. Ifediba, 46 F.4th 1225, 1237 (11th Cir. 2022)

    Ifediba was cited for clear-error review of drug quantity findings. This deferential standard matters because drug quantity disputes often turn on inferences rather than direct seizures.

  • United States v. Gyetvay, 149 F.4th 1213, 1239, 1242 (11th Cir. 2025)

    Gyetvay reinforces clear-error review for relevant-conduct determinations and defines clear error as requiring a “definite and firm conviction” of mistake, citing United States v. White.

  • United States v. White, 335 F.3d 1314, 1319 (11th Cir. 2003)

    White is used (through Gyetvay) to articulate the strictness of the clear-error threshold, insulating district court factfinding when plausible based on the record.

  • United States v. Siegelman, 786 F.3d 1322, 1332 (11th Cir. 2015)

    Siegelman supplies two major propositions: (1) sentencing must consider all “relevant conduct” under U.S.S.G. § 1B1.3, and (2) relevant conduct is “broadly defined to include both uncharged and acquitted conduct” if proven by a preponderance of the evidence. This is the foundational authority permitting the inclusion of text-based transactions despite the acquittal on one count and lack of charges on others.

  • United States v. Polar, 369 F.3d 1248, 1255 (11th Cir. 2004)

    Polar supports the permissibility of using evidence from trial and from sentencing proceedings to make sentencing findings—important here because the government relied on both investigative testimony and extracted phone data to support drug quantity.

Sentencing: different drugs, similarity/regularity/temporal proximity

  • United States v. Rodgers, 951 F.2d 1220, 1223 (11th Cir. 1992), withdrawn in part, amended by 972 F.2d 1253 (11th Cir. 1992)

    Rodgers is the key cited precedent undercutting Bellamy’s “different drugs can’t be same course of conduct” argument. The court invoked it to show the Eleventh Circuit has approved inclusion of quantities for drugs not charged in the instant offense (there, cocaine included where the instant offense involved marijuana). The citation is carefully qualified with its procedural history (“withdrawn in part, amended”), but its relevant proposition remains used.

  • United States v. Maxwell, 34 F.3d 1006, 1011 (11th Cir. 1994)

    Maxwell provides the governing test for “same course of conduct”: “similarity, regularity, and temporal proximity” between extrinsic acts and the offense of conviction. The panel applied this triad to the text messages: multiple transactions (regularity) within one year (temporal proximity) involving drug trafficking in multiple substances (similarity as a pattern of drug distribution conduct).

3.2. Legal Reasoning

(A) Why the informant statement was non-hearsay

The court’s evidentiary reasoning follows a common investigative-background pathway but structures it explicitly around the Kent three-part test. It held:

  1. Non-truth purpose: The informant’s statement was offered not to prove Bellamy “was a drug dealer” or “would sell drugs at that location,” but to explain why officers focused surveillance on the location and how the bust was set up—an “effect on the listener” theory.
  2. Relevance: The investigative sequence was relevant as background, helping the jury understand the context of the police encounter.
  3. Rule 403 balancing: The panel noted Bellamy did not argue that any unfair prejudice substantially outweighed the probative value of the background explanation. That omission matters because “background” testimony can be vulnerable to misuse if it effectively smuggles in accusatory content. Here, the appellate court treated the lack of a developed Rule 403 argument as reinforcing admissibility.

Notably, the opinion’s reasoning implies a limiting principle: the statement’s admissibility hinges on the prosecution using it to explain police conduct rather than to prove the substantive proposition that the defendant committed drug dealing. The court accepted the government’s framing and treated the testimony accordingly.

(B) Why there was no Confrontation Clause violation

The panel applied a threshold rule from Kent (citing United States v. Jiminez): the Confrontation Clause is implicated only when testimonial hearsay is admitted for its truth. Because the informant statement was admitted as non-hearsay, the constitutional analysis ended there. In effect, the court treated the non-hearsay classification as dispositive, without needing to decide whether the statement was “testimonial” under Crawford v. Washington.

This is doctrinally significant because it underscores an Eleventh Circuit pathway that often determines Confrontation Clause outcomes: classification first (hearsay vs. non-hearsay), testimonial analysis second only if necessary.

(C) Why uncharged, text-referenced transactions counted as relevant conduct

The sentencing dispute centered on whether drug quantities tied to (i) an informant’s asserted prior purchases and (ii) transactions reflected in text messages could be included in the § 2D1.1 drug quantity calculation when (a) not charged, (b) not necessarily completed, and (c) sometimes involving different drug types.

The court’s reasoning proceeds in three steps:

  1. Broad relevant conduct doctrine: Citing United States v. Siegelman, the court reiterated that relevant conduct includes uncharged and even acquitted conduct if proven by a preponderance of the evidence, and that sentencing factfinding may rely on evidence from trial and sentencing (United States v. Polar).
  2. “Same course of conduct” via similarity/regularity/temporal proximity: Applying United States v. Maxwell, the panel concluded the text messages showed a sufficiently consistent trafficking pattern. The messages discussed at least thirteen transactions in a year, involving multiple counterparties and multiple controlled substances. The court treated the repeated trafficking communications as demonstrating:
    • Similarity: trafficking conduct across the same set of drugs as part of a distribution pattern;
    • Regularity: multiple transactions rather than isolated conduct;
    • Temporal proximity: within a one-year period.
    The court further relied on United States v. Rodgers to reject the notion that different drugs cannot be part of the same course of conduct.
  3. Attempted transactions may qualify: Bellamy argued that attempted offenses are excluded. The panel rejected this by linking U.S.S.G. § 1B1.3(a)(2) (relevant conduct includes acts that would be grouped under § 3D1.2(d)) with the grouping rules and drug-trafficking guideline structure: because § 3D1.2(d) includes offenses sentenced under § 2D1.1, and § 2D1.1 covers attempted and completed drug trafficking offenses, the government did not need to prove completion of each deal—only that the conduct was of a type that would be grouped and was shown by a preponderance.

The upshot is a practical evidentiary holding at sentencing: phone-extracted communications reflecting negotiating, arranging, or discussing drug deals can support drug quantities as relevant conduct even absent recovered drugs and even if completion is uncertain, so long as the district court finds (by a preponderance) that the communications reflect trafficking conduct that is part of the same course of conduct as the offense of conviction.

3.3. Impact

  • Trial practice—informant background testimony: The opinion reinforces that officers may recount informant-provided information to explain investigative steps without triggering hearsay or Confrontation Clause problems—provided the testimony is framed and used as background rather than substantive proof. Practitioners should expect courts to admit such testimony when tied to “why police did X,” but also to scrutinize whether the narrative effectively supplies the missing “who/what” of guilt.
  • Confrontation Clause litigation strategy: Because the panel treats “non-hearsay” as dispositive, defendants must develop arguments that (a) the statement was functionally offered for its truth, and/or (b) any asserted background value is substantially outweighed by unfair prejudice (Rule 403). Otherwise, Confrontation Clause arguments may fail at the threshold.
  • Sentencing—texts as relevant conduct evidence: The decision underscores the continuing strength of the Eleventh Circuit’s relevant-conduct doctrine: uncharged and even incomplete trafficking activity can drive drug quantity and offense level. The “attempted crimes” discussion is especially important for modern drug cases where evidence is frequently digital (texts, messaging apps, photos) rather than physical seizures.
  • Multi-drug trafficking patterns: By relying on United States v. Rodgers, the panel signals that a defendant’s trafficking “course of conduct” can span multiple controlled substances, making it harder to cabin relevant conduct to the drug charged in the conviction.

4. Complex Concepts Simplified

  • Hearsay vs. non-hearsay (“effect on the listener”): Hearsay is an out-of-court statement used to prove what it says is true. A statement is not hearsay if used to show its impact—e.g., explaining why police set up surveillance—rather than to prove the defendant actually did what the statement claims.
  • Confrontation Clause (“testimonial hearsay”): The Sixth Amendment generally prevents the government from introducing testimonial statements of absent witnesses for their truth unless the defendant had a prior chance to cross-examine. But if a statement is not admitted for its truth, the Confrontation Clause is typically not implicated.
  • Relevant conduct (U.S.S.G. § 1B1.3): At sentencing, courts consider not only the conviction conduct but also other acts that are part of the same overall criminal conduct pattern (even if uncharged or resulting in acquittal) when proven by a preponderance of the evidence.
  • Preponderance of the evidence: A lower standard than “beyond a reasonable doubt.” It means “more likely than not.”
  • Same course of conduct: A guideline concept asking whether other acts are sufficiently connected to the offense of conviction. The Eleventh Circuit commonly uses “similarity, regularity, and temporal proximity.”
  • Grouping and attempts: If offenses would be “grouped” under the Guidelines (treated as part of a combined harm measure), then related acts—including attempts—can be counted as relevant conduct for quantity-based guidelines like drug trafficking.
  • Converted drug weight: When multiple drugs are involved, the Guidelines convert each drug amount into a standardized equivalent to compute a combined offense level.

5. Conclusion

United States v. Demetris Bellamy reaffirms two practical rules in Eleventh Circuit criminal litigation: (1) law enforcement testimony recounting a confidential informant’s statements may be admitted as non-hearsay when offered to explain investigative actions, which in turn avoids Confrontation Clause scrutiny; and (2) for Guidelines purposes, uncharged drug trafficking reflected in text messages—including attempted transactions and multi-drug dealing—may constitute relevant conduct when the record supports similarity, regularity, and temporal proximity.

The decision’s broader significance lies in its accommodation of modern evidentiary realities: investigations often begin with informant tips, and trafficking patterns are increasingly proven through digital communications. The opinion illustrates how, under existing Eleventh Circuit doctrine, those realities can affect both what the jury hears and—more consequentially—how drug quantities are calculated at sentencing.