Nonverbal conduct can be a "statement" for purposes of the federal prohibition against hearsay and, thus, nonverbal conduct can be "hearsay."

Crawford v. Washington, 541 U.S. 36, 51-52 (2004) ("Various formulations of this core class of "testimonial" statements exist: ... 'statements that were made under circumstances which would lead an objective....A factor that weighs in favor of the characterization of a hearsay statement as "testimonial" and in favor of the conclusion that the statement is subject to the constraints on admissibility imposed by the Confrontation Clause of the Sixth Amendment to the U.S. Constitution is that a reasonable declarant would have thought that his or her statement would significantly increase the probability of criminal charges against the defendant.

United States v. Quinones, 511 F.3d 289, 311 (2d Cir. 2007) (upholding trial court's admission of officer's testimony [about the out-of-court statements made by informant Santiago at the scene of defendant Quinones'....To fall within the hearsay exception provided by Federal Rule of Evidence 803(3) or a comparable State rule for person's present internal states, the declarant's state of mind must be shown to be relevant to an issue in the case.

United States v. Long, 905 F.2d 1572, 1579-1580 (D.C. Cir. 1990) (upholding trial court's admission of the telephone conversation, particularly the caller's questions, as non-hearsay evidence because "the caller's questions....Questions and inquiries are not assertions, thus, they cannot be hearsay.