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UNITED STATES v. COSENTINO

March 5, 1984

UNITED STATES OF AMERICA against JOSEPH COSENTINO, BERNARD WALTERS, also known as "Bernard Walton", JAMES JONES, ERIC WEST, USEY ODOM, EUGENE AUSTIN, also known as "Sandy Austin", and MARVIN DUGGINS, Defendants.


The opinion of the court was delivered by: MCLAUGHLIN

MEMORANDUM AND ORDER

McLaughlin, District Judge

 During the course of this criminal trial defendant James Jones sought to admit certain statements he made shortly after he was arrested. Relying upon United States v. DiMaria, 727 F.2d 265 (2d Cir. 1984), Jones argued that his protestations of innocence, amde at the time he was being "processed" by FBI agents, were admissible under the state of mind exception to the hearsay rule. Fed. R. Evid. 803(3)(hereafter "FRE"). I excluded those statements, and Jones was convicted of conspiring to receive and possess goods stolen from foreign commerce. 18 U.S.C. § 371. He was acquitted, however, on two substantive counts of receipt and possession of goods stolen from foreign commerce, 18 U.S.C. § 659, and transportations of stolen goods in interstate commerce. 18 U.S.C. § 2314. I issue this opinion to amplify my oral ruling during the trial and to complete the record for appellate purposes.

 Facts

 The seven defendants were indicted for various crimes arising out of their conspiracy to feign a truck hijacking and to steal $300,000 worth of shirts from the truck. Five of the defendants pleaded guilty.Defendants Jones and Walters chose to go to trial.

 Jones was accused of conspiracy to possess merchandise that was stolen from foreign commerce, and he was also charged with the substantive counts of possessing the same stolen shirts and transporting them in interstate commerce. His defense was that he had been enlisted by certain friends to go to New Jersey, put the stolen shirts on the truck, bring them back to New York, and help unload them. According to his testimony at trial, it was not until a week after the hijacking that Jones realized the shirts were stolen.

 Rodney M. Davis, a special agent of the FBI testified as a government witness. As the case agent, Davis was the principal law enforcement officer assigned to investigate the hijacking. He arrested Jones on July 29, 1983.

 Late that day, Agent Davis interviewed Jones and transcribed his statements on to a form entitled "FD 302." Agent Davis's 302 recited that in April, 1982, Jones had gone to New Jersey to bring merchandise back to New York on a truck. It further states that "Jones didn't know truck or merchandise on truck was stolen.Jones's job was to only help transport and unload merchandise from truck." Jones sought to elicit these statements during the testimony of Agent Davis. The Government objected, arguing that a defendant's prior consistent statements are admissible, if at all, only after the defendant has been impeached. Jones countered that, under DiMaria, the statements were admissible even if Jones elected not to testify.

 Discussion

 Jones's statement to Agent Davis is hearsay, since it is offered to prove its truth, i.e., that Jones was ignorant of the conspiracy. Defendant concedes as much, but argues that the statement is admissible under FRE 803(3) which admits hearsay if it is:

 the statement of the declarant's then existing state of mind . . . (such as intent, plan, motive, design, mental feeling, . . .), but not including a statement of memory or belief to prove the fact remembered or believed. . . .

 I hold that this exception does not apply to Jones's exculpatory statement.

 The state of mind exception to the hearsay rule evolved from necessity -- there was often no other way to prove a person's state of mind -- and from the assumption that such statements are trustworthy because they are the spontaneous expressions of what is then on the declarant's mind. While there is always a risk that the declarant is lying, there is no risk of faulty perception (the declarant can obviously perceive his own state of mind). More importantly, there is no risk of faulty recollection because the declarant is expressing his present state of mind, not his past state of mind.

 There is, accordingly, a radical distinction between the statement: "I hate X(admissible under FRE 803(3)) and the statement: "last year I hated X" (inadmissible). In the former statement the only serious hearsay risk is that the declarant is lying. In the latter, all the hearsay risks are present: the declarant may misperceive the state of mind he possessed one year ago; and his recollection may have dimmed over the year, and he may be lying. A statement about a past state of mind does not fall within the state of mind exception to the hearsay rule because in the words of Justice Cardozo, ...


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