Residual Hearsay, Mistrial Standards, and Completed Hobbs Act Robbery as a § 924(j) Predicate:
A Commentary on United States v. Kidd (2d Cir. 2025)

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I. Introduction

This commentary analyzes the Second Circuit’s summary order in United States v. Kidd, No. 23‑6400 (2d Cir. Dec. 19, 2025), affirming the conviction of Darnell Kidd for using a firearm in furtherance of a crime of violence resulting in death, in violation of 18 U.S.C. § 924(j)(1). Kidd was sentenced to 420 months’ imprisonment following a jury trial in the Southern District of New York (Judge Nelson S. Roman).

Although issued as a summary order—and therefore nonprecedential under the Second Circuit’s Local Rule 32.1.1—Kidd is citable and has clear persuasive value on three recurring federal criminal law issues:

1. The stringent limits on the residual hearsay exception under Federal Rule of Evidence 807, particularly as applied to police reports that deviate from witness statements.
2. The high threshold for granting a mistrial based on an inadvertent reference suggesting a defendant may have a prior conviction (here, the word “probation”).
3. The sufficiency of evidence standard for proving a completed Hobbs Act robbery as the predicate “crime of violence” for a § 924(j) homicide, despite arguments that the evidence shows only an attempted robbery.

The parties were:

• Appellee: United States of America.
• Defendant-Appellant: Darnell Kidd (a.k.a. “Black,” “Donney,” “Donney Black”).

Kidd’s appeal raised three principal issues:

1. Whether the district court erred in excluding two 2011 police reports under Rule 807 which supposedly contradicted trial testimony about Kidd’s movements on the day of the murder.
2. Whether the district court should have declared a mistrial after a government witness inadvertently testified that he saw Kidd at a state probation office.
3. Whether the evidence was sufficient to establish that the underlying “crime of violence” was a completed Hobbs Act robbery, rather than merely an attempted robbery.

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II. Summary of the Court’s Disposition

The Second Circuit (Judges Leval, Parker, and Sullivan) affirmed the conviction in full, holding:

1. Exclusion of Police Reports (Rule 807): The district court did not abuse its discretion in excluding two police reports that favored Kidd’s theory that someone else (Mark Jones) accompanied co-defendant Marcus Chambers to meet the victim. The reports lacked sufficient guarantees of trustworthiness, particularly because the detectives who authored them admitted they did not accurately reflect what the witnesses had said.
2. Denial of Mistrial: The district court properly denied Kidd’s mistrial motion after a witness referred once to seeing Kidd at “probation.” The reference was isolated, inadvertent, and cured by an instruction; any prejudice was speculative and, in any event, harmless in light of the strong evidence of guilt.
3. Sufficiency of Evidence (Hobbs Act Robbery): There was sufficient evidence for a rational juror to find a completed Hobbs Act robbery: testimony showed that Chambers and Kidd left the scene in possession of marijuana taken from the victim, even though additional marijuana and valuables remained on the victim’s body.

Accordingly, the April 14, 2023 judgment of conviction was affirmed.

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III. Detailed Analysis

A. Exclusion of the 2011 Police Reports Under Rule 807

1. Factual Context

The underlying crime was the robbery and murder of Jonathan Johnson in 2011. Over a decade later, Kidd was tried federally for using a firearm during a Hobbs Act robbery that resulted in Johnson’s death.

Two government witnesses were central to Kidd’s sufficiency and identity arguments:

• Karon Johnson – related to the victim, and present in the events leading up to the crime.
• Skandia Delacruz – associated with co-defendant Marcus Chambers, and involved in the trip to White Plains.

The defense sought to introduce:

• A 2011 report by Detective Peter Martin and
• A 2011 report by Detective Kevin Farrelly,

from the White Plains Police Department’s earlier investigation. According to the defense, those reports recorded that:

• Both Karon Johnson and Delacruz had implicated Mark Jones—not Kidd—as the person who accompanied Chambers to see the victim, while Kidd allegedly stayed behind.

This was crucial because the government’s theory was that Kidd, together with Chambers, went to meet Johnson for the drug transaction that turned into a robbery and murder.

At trial, however:

• Detective Martin testified that he had “flipped” Delacruz’s identifications of Kidd and Jones in his written report so that the report did not accurately reflect what she said. He described the report as adjusted to correspond to the working theory at the time, rather than as a faithful record of the interview.
• An audio recording of Martin’s April 2011 interview of Delacruz corroborated his testimony: Delacruz on tape confirmed that Chambers walked off with “Jules”—i.e., Kidd—to meet the victim.
• Detective Farrelly admitted that his report was “colored” by the working theory that Jones was the one who accompanied Chambers and that he could not attest that his report was an accurate account of what Karon had actually said.

The defense argued that, despite these flaws, the reports should be admitted under the residual hearsay exception of Federal Rule of Evidence 807 as prior inconsistent statements of Karon and Delacruz. The district court excluded the reports, but permitted extensive questioning of the two witnesses about whether they’d ever said that Jones, rather than Kidd, accompanied Chambers. Neither witness adopted the statements attributed to them in the reports.

2. The Residual Hearsay Exception and its Narrow Scope

The Second Circuit emphasized the exceptional nature of Rule 807:

• Citing Parsons v. Honeywell, Inc., 929 F.2d 901, 907 (2d Cir. 1991), the court reiterated that the residual exception is to be used “very rarely, and only in exceptional circumstances.”
• Building on United States v. Dawkins, 999 F.3d 767, 791 (2d Cir. 2021), the court restated the now-familiar criteria:
  1. The statement must be particularly trustworthy (supported by sufficient guarantees of trustworthiness), considering the totality of circumstances and any corroboration.
  2. It must bear on a material fact.
  3. It must be more probative than any other reasonably obtainable evidence on that point.
  4. Its admission must be consistent with the rules of evidence and must advance the interests of justice.
  5. The proponent must have given adequate notice to the adversary.
• Citing United States v. Doyle, 130 F.3d 523, 543–44 (2d Cir. 1997), the panel reiterated that the burden is on the proponent of the hearsay—in this case, the defendant—to show that a hearsay exception applies.

The court also invoked United States v. Cummings, 858 F.3d 763, 777 (2d Cir. 2017), which catalogues the classic four dangers of hearsay:

1. Insincerity,
2. Faulty perception,
3. Faulty memory, and
4. Faulty narration.

These risks become especially acute when the statement is filtered through a third party—in this case, detectives summarizing interviews in reports that they admitted were shaped by preexisting theories of the case.

Finally, the panel cited United States v. DeVillio, 983 F.2d 1185, 1190 (2d Cir. 1993), for the proposition that the residual exception should be applied in only the “rarest of cases,” reinforcing the exceptional nature of Rule 807 relief.

3. Application: Why the Police Reports Failed the Rule 807 Test

The Second Circuit agreed with the district court that the reports lacked the required indicia of trustworthiness:

• Detective Martin testified that he intentionally altered the identifications in his report—admittedly “flipping” Delacruz’s account so that the report said the opposite of what she actually said about who stayed behind and who went to meet the victim.
• Detective Farrelly acknowledged that his report was infused with the department’s “working theory” that Jones accompanied Chambers and that he could not vouch that his report accurately captured what Karon said.
• An audio recording of Delacruz’s 2011 interview corroborated Martin’s trial testimony and contradicted the theory

This combination of:

• express admissions of inaccuracy by the report authors,
• objective evidence (the audio recording) confirming that the live testimony, not the written reports, was accurate, and
• the obvious contamination of the written reports by preexisting investigative theories,

led the panel to conclude that the reports did not have sufficient guarantees of trustworthiness to qualify under Rule 807(a)(1).

Also important was the “most probative evidence” requirement under Rule 807(a)(2). Both Karon and Delacruz:

• were available to testify at trial, and
• were in fact examined and cross-examined regarding what they said in 2011.

Because the witnesses could be—and were—questioned about their prior statements, the panel concluded the reports were not “the most probative evidence” on who accompanied Chambers that day. The better evidence was the live testimony from the declarants themselves, subject to cross-examination and credibility assessment by the jury.

4. Law Enforcement Misconduct and the Limits of Admissibility

The court also addressed the possibility that the defense was implicitly trying to use the inaccurate reports as proof of possible police misconduct or investigative slant. The panel cited United States v. Malpeso, 115 F.3d 155, 163 (2d Cir. 1997), to warn that:

• Evidence of irrelevant law-enforcement misconduct risks shifting the jury’s focus away from the defendant’s conduct and toward “tangentially related misdeeds” of officers.
• Such a shift can improperly encourage the jury to discredit the government’s entire case because of alleged misconduct by others, rather than due to shortcomings in the evidence directly bearing on the defendant’s guilt.

The court effectively signaled that:

• Cross-examination of officers about inaccuracies and investigative bias is appropriate and was permitted.
• But that alone does not justify admitting otherwise inadmissible hearsay documents as substantive evidence under Rule 807, especially where reliability is contested and where the declarants themselves are available to testify.

Overall, the panel found no abuse of discretion in the district court’s Rule 807 ruling.

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B. Denial of Mistrial After the “Probation” Reference

1. Factual Background

A pretrial ruling permitted the government to elicit that witness Karon Johnson had seen Kidd at a state office after the murder, but the court—mindful of prejudice—required the government to:

• refer to the location only as a “government agency,” and
• avoid using the word “probation.”

The government complied. However, during direct examination, Karon once inadvertently said he saw Kidd at “[p]robation.” Kidd then moved for a mistrial, claiming incurable prejudice from the implicit suggestion of a prior conviction.

The district court:

• Denied the mistrial motion.
• Struck the reference from the record.
• Issued a curative instruction (proposed by Kidd) telling the jury that it could not use the reference to “probation” to draw any propensity inference.

2. Legal Standard for Mistrial

The Second Circuit reiterated that a mistrial is an extreme remedy:

• Citing United States v. LaFroscia, 485 F.2d 457, 458 (2d Cir. 1973), the panel characterized mistrial as a “drastic remedy.”
• Citing Renico v. Lett, 559 U.S. 766, 774 (2010), the court emphasized it should be used “with the greatest caution, under urgent circumstances, and for very plain and obvious cases.”
• Citing United States v. Deandrade, 600 F.3d 115, 119 (2d Cir. 2010), the panel underscored the relevance of whether the contested reference is:
  • isolated,
  • unintentional, and
  • incidental to legitimate questioning.

The court also relied on precedents finding no abuse of discretion in similar settings:

• United States v. Fermin, 32 F.3d 674, 677 (2d Cir. 1994) (witness’s inadvertent reference to defendants’ criminal records was a “fleeting portion” of an otherwise proper answer; mistrial properly denied; decision later overruled on unrelated grounds by Bailey v. United States, 516 U.S. 137 (1995)).
• United States v. Taher, 663 F. App’x 28, 30–31 (2d Cir. 2016) (no mistrial where a witness accidentally said the defendant “went to jail” instead of using the neutral phrasing “became unavailable”).
• United States v. Batista, 684 F.3d 333, 342 (2d Cir. 2012) (where curative instructions issue, a defendant faces an even higher burden because courts presume juries follow instructions).
• United States v. Castano, 999 F.2d 615, 618 (2d Cir. 1993) (if it is “extremely unlikely” that the challenged reference contributed to the verdict, mistrial is not warranted).
• United States v. Smalls, 719 F. App’x 83, 85 (2d Cir. 2018); United States v. Latulas, 683 F. App’x 51, 54 (2d Cir. 2017) (affirming denials of mistrials in analogous circumstances).

3. Application: Why No Mistrial Was Required

The panel found that the single “probation” reference fell squarely within the category of harmless, curable misstatements:

• The reference was isolated—one word in a longer, otherwise proper answer.
• It appeared to be inadvertent, with the prosecution strictly adhering to the court’s directive to use “government agency” language.
• The court promptly issued a curative instruction, drafted by the defense, explicitly forbidding the jury from using the reference to infer propensity.

The panel also noted that:

• Kidd’s presence in a probation office did not necessarily establish that he was on probation; he could plausibly have been present for someone else’s appointment. Any inference of a prior conviction was therefore speculative.
• The government presented substantial independent evidence of Kidd’s guilt, including his participation in the robbery and murder and involvement in other criminal activity.

Taken together, these factors made it “extremely unlikely” that the single slip of “probation” contributed to the verdict. Under the deferential abuse-of-discretion standard, and in light of the strong presumption that juries follow curative instructions, the Second Circuit held that denial of the mistrial motion was well within the district court’s discretion.

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C. Sufficiency of Evidence of a Completed Hobbs Act Robbery

1. Statutory Framework: Hobbs Act and § 924(j)

The defendant was convicted under 18 U.S.C. § 924(j)(1), which penalizes causing death through the use of a firearm in the course of a violation of § 924(c). Section 924(c), in turn, criminalizes using or carrying a firearm “during and in relation to any crime of violence or drug trafficking crime.”

The government’s theory was that the underlying “crime of violence” was a Hobbs Act robbery of Jonathan Johnson, in violation of 18 U.S.C. § 1951(a). Hobbs Act robbery requires proof that the defendant:

1. Obtained or took property from another,
2. Against the victim’s will by actual or threatened force, violence, or fear, and
3. Obstructed, delayed, or affected interstate commerce (or attempted or conspired to do so).

On appeal, Kidd:

• Conceded that Hobbs Act robbery is a “crime of violence” under § 924(c), and therefore a valid predicate for § 924(j)(1).
• But argued that the government proved at most an attempted robbery, not a completed robbery, because no adequate evidence showed that any marijuana was actually taken from Johnson.

2. The “Heavy Burden” of a Sufficiency Challenge

The standard of review for sufficiency of the evidence is extremely deferential to the jury’s verdict. The panel cited:

• United States v. Coplan, 703 F.3d 46, 62 (2d Cir. 2012): a defendant challenging sufficiency “bears a heavy burden.”
• United States v. Atilla, 966 F.3d 118, 128 (2d Cir. 2020): the court views the evidence in the light most favorable to the government and upholds the verdict if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

This standard allows the government to rely heavily on circumstantial evidence and reasonable inferences; it is not necessary to prove the robbery by direct evidence such as recovered contraband.

3. Evidence Supporting a Completed Robbery

The Second Circuit identified several pieces of trial evidence from which a rational jury could find that Chambers and Kidd actually stole marijuana from Jonathan Johnson:

• Testimony of Karon Johnson:
  • He testified that after returning from meeting Johnson, Chambers “adjusted … a Ziplock bag of weed that was in his pants” before leaving with Kidd.
• Testimony of another witness:
  • That witness saw Chambers and Kidd running and recalled that one of them was “holding his pants” in a way consistent with concealing a bag of marijuana.
• Testimony of Skandia Delacruz:
  • She explained that she and Chambers did not have drugs with them when they traveled to White Plains that day.
  • But after the incident, they returned to Yonkers with “a couple of Ziploc bags” of marijuana.

Kidd argued that any robbery theory was undermined by the fact that police found marijuana and other valuables on Johnson’s body. He maintained that this showed Chambers and Kidd abandoned the robbery or at least did not complete it.

The panel rejected this argument as implausible under the deferential standard:

• It is not “illogical” that robbers might take some of the victim’s marijuana while leaving some marijuana and cash behind, especially when the crime escalated into a homicide.
• After murdering the victim, Chambers and Kidd had a strong incentive to flee quickly, which is consistent with:
  • taking whatever contraband they could readily grab, but
  • not spending time thoroughly searching the body or surroundings.

The key point is that the jury could reasonably conclude, based on the testimony, that:

• marijuana located in Chambers’s pants and later in Yonkers had been obtained from Johnson, and
• therefore a completed taking occurred, satisfying the first element of Hobbs Act robbery.

Because a rational trier of fact could so find, the sufficiency challenge failed.

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IV. Clarifying Key Legal Concepts

1. Hearsay and the Residual Exception (Rule 807)

Hearsay is an out-of-court statement offered in court to prove the truth of the matter asserted. As a default rule, hearsay is inadmissible unless a specific exception applies.

Most hearsay exceptions (Rules 803 and 804) specify particular categories of statements—such as excited utterances, business records, or statements against penal interest—that are deemed reliable enough to be admitted.

Rule 807, the residual exception, is a safety valve allowing admission of hearsay that:

• does not fit any specific exception, but
• is nevertheless highly reliable and uniquely probative.

Under Rule 807, a statement is admissible if:

1. It has “sufficient guarantees of trustworthiness,” considering how it was made and any corroboration.
2. It is “more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts.”

In Kidd, the Second Circuit underscored that Rule 807 should be used rarely—especially when:

• the supposed declarants (here, Karon and Delacruz) are available to testify in person, and
• the third-party record of their statements (the police reports) is admittedly distorted.

2. Mistrial and Curative Instructions

A mistrial terminates the trial prematurely, requiring a new trial (unless double jeopardy bars retrial). Because it burdens witnesses, jurors, and the justice system, mistrial is reserved for serious, incurable prejudice.

Courts ask whether the incident at issue:

• was isolated or pervasive,
• was intentional or inadvertent,
• concerned a central or collateral issue, and
• could be cured by an instruction.

A curative instruction is a direction from the judge to the jury telling it to disregard or limit its use of improper evidence. Appellate courts presume that jurors follow these instructions, which raises the defendant’s burden when arguing that a mistrial was required.

3. Hobbs Act Robbery vs. Attempted Robbery

The Hobbs Act (18 U.S.C. § 1951) criminalizes robbery and extortion that affect interstate commerce. A completed robbery generally requires that the defendant:

• actually obtained or took property from another by force or threats.

An attempted Hobbs Act robbery occurs where the defendant intends to commit the robbery and takes a substantial step toward it, even if no property is actually taken.

Why this distinction matters here:

• After recent Supreme Court decisions (noted in the broader jurisprudence), certain crimes qualify as a “crime of violence” under § 924(c) only if they involve the actual use, attempted use, or threatened use of physical force and fit the statute’s categorical definition.
• Completed Hobbs Act robbery is widely accepted as a crime of violence; attempted Hobbs Act robbery has been the subject of more complex litigation.
• Kidd’s appellate strategy was to characterize the underlying conduct as an attempted robbery, hoping to undermine the § 924(j)(1) predicate. The Second Circuit foreclosed this by finding a completed taking based on circumstantial evidence.

4. Standards of Review

Three standards of review featured prominently:

• Abuse of discretion (for evidentiary rulings and mistrial decisions):
  • The appellate court asks whether the trial judge’s decision was “manifestly erroneous” or outside the range of permissible choices.
• De novo review (for sufficiency of the evidence):
  • Technically non-deferential on the legal standard, but applied in a way that is still very favorable to the jury’s verdict.
  • The court must view all evidence in the light most favorable to the prosecution and ask whether any rational juror could find guilt beyond a reasonable doubt.

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V. Broader Impact and Practical Implications

Although United States v. Kidd is a summary order and thus nonprecedential, it is citable under Federal Rule of Appellate Procedure 32.1 and may influence future litigation as a persuasive authority. Its main practical lessons can be grouped as follows.

1. Rule 807 Remains a Steep Hill to Climb

For defense and prosecution alike, Kidd underscores:

• Rule 807 is not a back-door route for getting unreliable or cumulative hearsay admitted when declarants are available.
• Police reports that investigators admit are:
  • inaccurate, or
  • tailored to a preexisting theory,
  are particularly poor candidates for the residual exception.
• When the declarant testifies at trial, Rule 807’s “most probative” requirement will be difficult to satisfy; live testimony is usually more probative.

Defense counsel can still:

• use such reports as the basis for cross-examination,
• impeach officers by highlighting inconsistencies or investigative bias, and
• argue that headaches in the early investigation cast doubt on the government’s reconstruction.

But Kidd shows that using Rule 807 to convert flawed police reports into substantive exculpatory evidence faces substantial resistance.

2. Managing Prejudicial Character Evidence and Mistrial Motions

The decision also offers guidance on how courts and counsel should handle potential references to:

• prior convictions,
• probation or parole,
• custodial status.

Key implications:

• Pretrial rulings (like instructing the government to use neutral terms such as “government agency”) are important, but they do not guarantee that witnesses will never slip.
• When a slip is isolated and inadvertently reveals potentially prejudicial information, appellate courts are inclined to trust:
  • striking the reference, and
  • issuing a curative instruction
  as adequate remedies.
• Defense counsel seeking mistrial must be prepared to demonstrate:
  • that the incident caused substantial and irremediable prejudice, and
  • that the evidence of guilt was not so overwhelming as to render the error harmless.

3. Proof of a Completed Hobbs Act Robbery

On the § 924(j) front, Kidd carries several practical lessons:

• The government need not show that robbers stripped a victim of all property to prove a completed robbery; stealing some contraband or money is sufficient.
• The fact that police later find drugs or valuables on the deceased victim does not defeat a robbery theory if the evidence shows that other property was taken.
• Circumstantial evidence—such as witnesses seeing defendants adjust a bag, return with drugs they did not previously have—is enough to establish the taking element.
• Defendants hoping to reclassify a completed robbery as an “attempt” face a steep challenge under the deferential Atilla/Coplan standard.

In an era of close scrutiny of § 924(c)/(j) predicates, the case provides prosecutors with a roadmap for proving a completed Hobbs Act robbery even where the robbery is intertwined with a drug transaction and only partial property is taken.

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VI. Conclusion

United States v. Kidd reinforces three key themes in Second Circuit criminal jurisprudence:

1. The residual hearsay exception under Rule 807 remains tightly constrained.
   Courts will demand strong indicia of reliability and will generally favor live testimony over hearsay, especially when the hearsay is contained in police reports that officers concede are inaccurate or theory-driven.
2. Mistrials are reserved for extraordinary cases of prejudice.
   An isolated, inadvertent reference to “probation,” promptly struck and cured with a limiting instruction, will not ordinarily warrant a new trial, particularly where the evidence of guilt is otherwise substantial.
3. A completed Hobbs Act robbery can be established with circumstantial evidence showing that defendants left the scene with some of the victim’s property.
   The presence of remaining drugs or valuables on the victim’s body does not negate the taking element; hurried flight after a homicide is entirely consistent with a partial robbery, and juries are free to draw logical inferences from testimony about contraband the defendants did not possess before the crime.

While nonprecedential, Kidd offers a clear and practically oriented application of settled principles in evidence law, mistrial doctrine, and Hobbs Act robbery sufficiency. It will be a useful persuasive authority for litigants and courts confronting similar issues in § 924(c)/(j) prosecutions and beyond.