Permissible Inferences Under The FRE 803(3) Existing Mental Condition Hearsay Exception

In a murder in aid of racketeering trial, admitting widow's testimony that her husband, the murder victim Cutolo, last contacted her on the phone and told her that he was going to a meeting with the defendant (Persico) at a particular location, only as proof the victim went to the location, but not as proof that the defendant went there: "while a declarant's statement of intention to do something with another person is admissible as evidence that the declarant acted in accordance with his stated intention, it is not admissible under FRE 803(3) to show that the defendant also acted in accordance with the intention attributed to him by the declarant, in United States v. Persico, __ F.3d __ (2d Cir. May 3, 2011) (Nos. 08–5266–cr(L), 09–0992–cr, 09–1076–cr.)

FRE 803(3) specifies that the "[t]hen existing mental, emotional, or physical condition" of a hearsay declarant can be admitted as a "statement of the declarant's then existing state of mind, emotion, sensation, or physical condition "(such as intent, plan, motive, design, mental feeling, pain, and bodily health)." The Second Circuit recently considered a case involving application of the rule and its limitations, which the court explained by reference to the drafting history of the provision.

In the case, defendant Persico was charged with killing victim Cutolo as part of his enforcement activities for an organized crime conspiracy. Part of the key evidence admitted of this crime was testimony from Peggy, the victim's wife of 30 years. At the defendant's trial, she testified that the victim had told her on the day of the killing that he was going to a meeting with the defendant at a particular location in which they would not be observed by the FBI. This testimony follows:

Q:
When your husband left your home on May 26, 1999, was that the last time that you saw your husband? ... Did there come a time later that day that you spoke with him on the telephone?
A.
Yes.
Q.
Approximately what time was that?
A.
About 12 o'clock. ...
Q.
And when you spoke with your husband on the telephone, what was his mood?
A.
Very abrupt and fast. He says my appointment was canceled. I have to run back to Brooklyn.
Q.
And did he tell you who he was going to meet?
A.
The Kid.
Q.
And when your husband told you on May 26, 1999 that he was going to meet The Kid, who did you understand him to mean?
A.
[Defendant] Allie Boy Persico.
Q.
To your knowledge was there a particular location that your husband would meet Alphonse Persico?
A.
92nd Street and Shore Road.
Q.
How do you know that?
A.
My husband [victim Cutolo]told me.
Q.
What, if anything, did your husband describe to you about why he would meet Alphonse Persico at 92nd Street and Shore Road?
A.
So they wouldn't be seen, because he had to go down like a couple of steps or stones, I don't know, and there is an overpass where you can talk where they wouldn't be seen.
Q.
And when your husband told you that you couldn't be seen from that spot, what did you understand him to mean?
A.
From the FBI.
- - -

The circuit noted that the witness also "testified that Cutolo had told her many times that he met with [defendant] Persico at 92nd and Shore; that location, so far as she knew, was their habitual meeting place." Persico -- F.3d at __.

The Second Circuit rejected the defendant's challenge to the admission of this testimony as to where the victim intended to meet with the defendant, but explained that this evidence could not be used under FRE 803(3) to prove that the defendant actually attended the meeting. That would be hearsay as it takes victim's report as declarant, that implied that the defendant intended to meet with him at the usual place. The evidence could not be used to prove that the defendant was at the meeting.

The circuit distinguished the case from an earlier Second Circuit case of United States v. Delvecchio, 816 F.2d 859 (2d Cir. 1987), in which the circuit admitted a statement by an informant who was the declarant, but ruled that the statement was not admissible to show that defendant Delvecchio "in fact met with him [victim] because there was no 'independent evidence' that Delvecchio did so." Persico -- F.3d at __.

As explained by the Circuit:

In that case—unlike the present case—the declarant's statement was offered “ to prove [the nondeclarant's] attendance ” at the meeting. The point we made in Delvecchio was that, while a declarant's statement of intention to do something with another person is admissible as evidence that the declarant acted in accordance with his stated intention, it is not admissible under Rule 803(3) to show that the third person also acted in accordance with an intention attributed to him by the declarant. In contrast, Cutolo's statement in the present case was in no way offered to show that in fact “Persico met Cutolo at the Shore Road location” ...; rather, that statement was properly admitted to show Cutolo's intent to meet Persico there and to support an inference that Cutolo acted in furtherance of that intent, from which the jury could reasonably infer that Cutolo had communicated to Persico that Cutolo would be at Shore Road expecting to meet Persico there.

Cutolo's statement that he was going to Brooklyn on the afternoon of May 26 to meet with Persico made it more probable that Cutolo went to Brooklyn with the expectation of meeting there with Persico, than if he had made no such statement. Under 803(3), the jury could draw the inference that Cutolo acted in furtherance of his stated intent to go meet Persico. From this evidence and other evidence that Persico and Cutolo habitually conducted their meetings under the Shore Road overpass where they would not be observed, —together with the evidence that Cutolo went to that place that very afternoon—the jury could have inferred that Cutolo communicated to Persico (or to Persico's people) that Cutolo would be there expecting to meet Persico.
Persico -- F.3d at __ (citations and emphasis omitted).


The Second Circuit explained the derivation of FRE 803(3), as a decided rejection of a doctrine explored by the U.S. Supreme Court in Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285, 299–300 (1892).

This exception reflects the decision of the Supreme Court in Mutual Life Insurance Co. v. Hillmon, which ruled admissible the evidence that a missing person had stated his intention to go on a trip with Hillmon because such a statement is
evidence that, shortly before the time when other evidence tended to show that he went away, he had the intention of going, and of going with Hillmon, which made it more probable both that he did go and that he went with Hillmon than if there had been no proof of such intention.
Hillmon, 145 U.S. at 296. Thus, “[i]f relevant,” a declarant's statement of his intent “may be introduced to prove that the declarant thereafter acted in accordance with the stated intent.” The Advisory Committee Notes on the adoption of Rule 803(3), however, state that “the Committee intends that the Rule be construed to limit the doctrine of ... Hillmon ... so as to render statements of intent by a declarant admissible only to prove his future conduct, not the future conduct of another person.”
Persico -- F.3d at __ (citing Fed.R.Evid. 803 Advisory Committee Note (1974)).

Federal Rules of Evidence
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