Is a "nod" a statement for purposes of the hearsay rule?

4 The parties correctly concede that a "nod" is a statement for purposes of the hearsay rule and will be held to constitute hearsay if introduced to prove the truth of the matter asserted (i.e., a positive or negative answer in response to a particular question). See United States v. Ross, 321 F.2d 61, 69 (2d Cir.), cert. denied, 375 U.S. 894, 84 S.Ct. 170, 11 L.Ed.2d 123 (1963) (pointing of finger held to be a statement for purposes of hearsay rule). Here, the government unquestionably offered this testimony to prove the truth of the matter asserted, i.e., that appellants participated in the arson scheme.

5 Rule 804(b)(3) provides: