United States v. Torres, No. 12-50553 (Tallman with Murphy and Gould) --- The Ninth Circuit affirmed a conviction for importation of cocaine, holding that questions from a supposed third-party (an alternative culprit) were inadmissible hearsay, and that excluding the questions was harmless in any event.
Is a question hearsay? Depends, says the 9th, requiring nuance and, well, because the defendant was asked the question "by a friend" who wanted to take control of his car to unload drugs of which the defendant was unaware, then yes, it is hearsay. It is hearsay because the defendant wanted the question asked three times by Fernando, "Can I take your car", to be true. It was not a case that it affected the defendant's state of mind, but the defendant wanted the query to be believed for his defense of "blind mule." The 9th stated that questions usually are not hearsay, but much depends on context and meaning, and the 9th gave a litany of examples (many with the prosecution asking that it be considered nonhearsay). There is also a broader approach by the Fifth Circuit that would find almost all questions to be nonhearsay. Even if the district court erred in admitting the hearsay, it was harmless, because excluding the questions didn't prevent the defendant from raising his third-party culpability defense.
The decision is here: