Ninth Circuit Finds District Court Erred in Excluding Statement That Should Have Been Admissible Under Rule 803(3)

Federal Rule of Evidence 803(3) provides an exception to the rule against hearsay for

A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.

A good example of Rule 803(3) in action can be found in the recent opinion of the Ninth Circuit in United States v. Shen Zhen New World I, LLC, 2024 WL 4140629 (9th Cir. 2024).

In Shen Zhen,

For nearly four years, Chinese billionaire Wei Huang lavished extravagant Las Vegas hotel stays, gambling chips, and prostitutes on then-Los Angeles City Councilmember Jose Huizar. Huang owned and operated Defendant-Appellant Shen Zhen New World I, LLC (“Shen Zhen”), a real estate development company, that sought to redevelop the L.A. Grand Hotel into Los Angeles's tallest skyscraper. Huizar was not only the councilmember of the district that encompassed the hotel but also a key figure on committees that oversaw all development in the city. Huang's right-hand man confided in Huizar's aide that Huang's strategy was to “give, give, give” so that he could later make a “big ask” for Huizar's support on the redevelopment project.

In 2022, a federal jury convicted Shen Zhen on three counts of honest-services mail and wire fraud, in violation of 18 U.S.C. §§ 1341, 1343, 1346; one count of federal-program bribery, in violation of 18 U.S.C. § 666(a)(2); and four counts of interstate and foreign travel in aid of racketeering, in violation of the Travel Act, 18 U.S.C. § 1952(a)(3).

After he was convicted, Shen Zhen appealed, claiming, inter alia, that the district court erred in excluding evidence that should have been admissible under Rule 803(3). The Ninth Circuit addressed this issue as follows:

During the Government's direct examination of Zheng, he testified that he had discussed with colleagues his concerns about Huang giving Huizar casino chips. On cross-examination, Zheng stated that he raised his concerns directly with Huang. When defense counsel asked Zheng about Huang's response, the district court sustained the Government's objection on hearsay grounds. The court erred in doing so.

Zheng's expected testimony falls under the state-of-mind exception to hearsay. Federal Rule of Evidence 803(3) allows for the admission of “[a] statement of the declarant's then-existing state of mind (such as motive, intent, or plan) or emotional...condition (such as mental feeling...).” As the parties acknowledge, defense counsel sought to elicit Huang's out-of-court response to Zheng that Huang thought he and Huizar “were just having fun,” “not doing anything wrong,” and that he “had not asked...Huizar for anything.” Had Zheng been able to offer this testimony, it would have been probative not as to the truth of these statements but whether Huang felt culpable in his interactions with Huizar....Although Zheng could not testify as to the factual basis for Huang's mindset,...at least some of the excluded statements were probative of Huang's “then-existing state of mind” and “mental feeling” about his actions—admissible as an exception to the rule against hearsay. 

That said, the Ninth Circuit concluded that this was harmless error.

-CM