Case 3:07-cr-00289-M Document 974 Filed 09/05/2009 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

UNITED STATES OF AMERICA §

§
Plaintiff, §
§
v. § CRIMINAL ACTION NO.
§
SHEILA D. FARRINGTON (03) § 3:07-CR-289-M
a/k/a “Sheila Hill,” et al. §
§
Defendant.
§

TRIAL BRIEF REGARDING ADMISSIBILITY OF EXTRA-JUDICIAL STATEMENTS

On behalf of herself and Don Hill (“Don”), Defendant Sheila Hill (“Sheila”) presents the

following brief regarding the admissibility of her extra-judicial statements about the Farrington

& Associates contract (the “Contract”) and her association with D’Angelo Lee.

I.

In October 2004, Sheila discussed the Contract between Farrington & Associations and

Southwest Housing with Don, while it was being negotiated. As the events were unfolding, she

explained to Don that D’Angelo Lee had approached her with the opportunity, she described

how she and Lee were to work together on the subject matter of the Contract, how they would

divide the labor, and how they would handle the division of compensation. In turn, Don told her

that this was an excellent opportunity and advised her on some terms of the Contract.

These conversations are admissible for the truth of the matters asserted because they are

present sense impressions and are contemporaneous statements of Sheila’s state of mind. See

Fed. R. Evid. 803(1) & 803(3). It is of no moment that Sheila is available to testify as a potential

witness. See Rule 803 (“The following are not excluded by the hearsay rule, even though the

declarant is available as a witness.” (emphasis added)).

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But even if they were not admissible for their truth, they would still be admissible as

proof of state of mind. Statements offered for this purpose are not hearsay and are admissible

even without an exception. See Rule 801(c) (definition of hearsay).

II.

Rule 803(1) provides that an out of court statement “describing or explaining an event or

condition made while the declarant was perceiving the event or condition, or immediately

thereafter,” is admissible for the truth of the matter asserted. Id. Further, Rule 803(3) provides

that statements of “intent, plan, motive,” etc. are admissible for their truth. Id. These rules apply

“even though the declarant [the person who made the statement] is available as a witness.”

Rule 803; see also United States v. Liu, 960 F.2d 449, 452 (5th Cir. 1992) (observing that

exception under Rule 803(3) applies even when the declarant is available as a witness (citing

Rule 803)) Therefore, Sheila’s potential as a witness in this case is completely irrelevant to the

question whether her extrajudicial statements are admissible for their truth under Rule 803.

Indeed, the hearsay exception for such statements presumes that they are sufficiently reliable to

render cross-examination unnecessary. See Rock v. Huffco Gas & Oil Co., Inc. 922 F.2d 272,

280 (5th Cir. 1991) (“The justification for this hearsay exception [Rule 803(1)] relies on the

contemporaneousness of the event under consideration and the statement describing that event.

Because the two occur almost simultaneously, there is almost no likelihood of a deliberate or

conscious misrepresentation.”); Horton v. Allen, 370 F.3d 75, 85 (1st Cir. 2004) (“The premise

for admitting hearsay statements evidencing state-of-mind [Rule 803(3)] is that such statements

are reliable because of their ‘spontaneity and [the] resulting probable sincerity.’” (quoting

McCormick on Evidence, § 274 (5th ed.1999)). Only the hearsay exceptions enumerated under

Rule 804 are conditioned on the declarant’s unavailability. See Rule 804.
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Sheila’s statements to Don about the Contract, while the Contract was being negotiated

and while the terms of association between were still being worked out with Lee, are clearly

admissible for their truth under Rule 803(1). The Government’s only response has been to

protest the fact that Sheila (the “declarant”) is available to testify as a witness. But as

demonstrated above, this is of no moment. Sheila’s contemporaneous statements about the

Contract—to a person very close to her—are sufficiently reliable for admission because “there is

almost no likelihood of a deliberate or conscious misrepresentation.” Rock, 922 F.2d at 280.

Likewise, Sheila’s statements of intent or plans for association with Lee and execution of

the Contract are likewise admissible for their truth under Rule 803(3). Statements made at the

time, regarding her (then current) intent and plan, are sufficiently reliable to make cross-

examination unnecessary. Her availability as a witness does not affect the analysis.

III.

Additionally, these conversations are admissible for the nonhearsay purpose of proving

state of mind. The defendants are charged with conspiring together to accept bribes from Brian

Potashnik through the Farrington & Associations contract. A conspiracy to commit bribery

requires an agreement between at least two people (namely, Don and Sheila Hill) who have a

corrupt intent. See 18 U.S.C. §§ 371 and 666(a)(1). Evidence as to their intent for and

understanding of the Contract is essential.

Sheila’s explanations about the Contract and her association with Lee are critical pieces

of evidence regarding her state of mind, and are not hearsay. “[S]tatements by a declarant that

serve as circumstantial evidence of the declarant's state of mind are not hearsay. Such statements

are not offered to prove the truth of the matter asserted but only that the declarant . . . believed

them to be true.” Solomon v. Waffle House, Inc., 365 F.Supp.2d 1312, 1319 (N.D. Ga. 2004).
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Statements offered for this non-hearsay purpose are distinct from those offered under the hearsay

exception of Rule 803(3). See Smith v. Duncan, 411 F.3d 340, 347 n.4 (2d. Cir. 2005). As the

Second Circuit explained:

[o]ffering evidence under the state of mind exception to the hearsay rule is
different than offering it for a non-hearsay purpose—here, to show declarant's
state of mind. The exception to the hearsay rule is invoked when the statement is
offered for the truth of the matter asserted and shows the declarant's state of mind
(e.g., “I hate X.”). In contrast, the mere utterance of a statement, without regard
to its truth, may indicate circumstantially the state of mind of the declarant and is
not hearsay (e.g. “I am Napoleon.”).

Id. (citations omitted).

Thus the statements, “I plan to do such and such with D’Angelo,” or, “I believe the

Contract to be X,” are admissible hearsay under Rule 803(3) because they are direct statements

of the declarant’s state of mind and are offered for their truth. On the other hand, a simple

statement such as, “the purpose of the Contract is X,” is admissible non-hearsay because it is

circumstantial evidence of her state of mind and is not offered for its truth. Even if the

information Sheila shared with Don was not true, the mere fact that she said it proves

circumstantially that she believed it was true, negating any criminal intent.

These statements are also admissible to show Don’s state of mind with respect to the

Contract. It is axiomatic that an “out of court statement that is offered to show its effect on the

hearer's state of mind is not hearsay.” United States v. Hanson, 994 F.2d 403, 406 (7th Cir.

1993). Sheila’s statements about the Contract and her arrangement with Lee show, inter alia,

why Don did not perceive the contract to be a mere pass through for bribe payments to Lee or

himself. Lee would be getting most of the money under the contract only because, he believed,

Lee was the lead consultant and the person who set up the arrangement. He understood that Lee

would be using the Farrington & Associates account for his banking business only because he,
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having credit problems, was unable to open his own checking account. He knew that Sheila

assented to this arrangement because it was a good opportunity for her professionally. All of

these details go to the reasonableness of Don’s belief that this was a completely legitimate

contract, despite there being some circumstances that, left unexplained, might seem unusual.

Because the testimony would add credence to his assertion that he was not a “co-conspirator” in

this case, disallowing it would be reversible error. See United States v. Rubin, 591 F.2d 278, 283

(5th Cir. 1979) (reversing conviction where trial court excluded defendant’s testimony regarding

labor union presidents’ statements to him about how to interpret the union constitution, which

would have helped prove that he believed his actions to be authorized under that constitution)

(“[H]e did not offer the statements to prove the truth of the matter asserted, but instead to prove

that he had heard them and to establish their effect on his state of mind. Thus, [the] proffered

testimony was not hearsay, and because it was relevant to [the defendant’s] state of mind, it

should have been admitted.”).

IV.

For the foregoing reasons, Sheila Hill requests that the Court overrule the Government’s

objections and allow Don Hill to testify on these issues.

September 5, 2009 Respectfully submitted,

/s/ Victor D. Vital

Victor D. Vital
State Bar No. 00794798
Jon Mureen
State Bar No. 24060313
BAKER BOTTS L.L.P.
2001 Ross Avenue
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Dallas, Texas 75201-2980

Telephone: (214) 953-6500
Fascimile: (214) 953-6503

CERTIFICATE OF SERVICE

This is to certify that on September 5, 2009, I electronically filed the foregoing

document and all parties of records were served view the court’s ECF system.

/s/ Victor Vital

Victor Vital