## Facts

- A tractor-trailer carrying approximately 950 cases of Philip Morris cigarettes from Virginia to New Jersey was hijacked while the driver slept at a New Jersey Turnpike rest area.
- The stolen load was taken to a trucking yard in Jersey City, where it was stored and later transferred into refrigerated trucks.
- Law enforcement began surveillance of the yard and several suspects after receiving information about a hijacked shipment of cigarettes.
- Agents observed Leonard DiMaria at the yard during activity consistent with moving and loading the cigarette cases; evidence indicated he helped direct the loading.
- When arrested, DiMaria had a broken case of the cigarettes in his car.
- DiMaria’s defense was that he believed he was purchasing cheap, untaxed (“bootleg”) cigarettes, not stolen cigarettes.
- DiMaria sought to elicit testimony from an FBI agent that DiMaria stated at the scene that he “only came here to get some cigarettes real cheap” (or similar words).
- The district court excluded the statement as hearsay.

## Issues

1. Whether DiMaria’s contemporaneous statement about coming to obtain cigarettes “real cheap” was admissible under Federal Rule of Evidence 803(3) as evidence of then-existing intent or belief.
2. If exclusion was error, whether it was harmless given the other evidence; and whether the evidence was otherwise sufficient to support the convictions.

## Decision

- The Second Circuit reversed DiMaria’s convictions and remanded for a new trial.
- The court held the excluded statement was admissible under Rule 803(3) as a declaration of then-existing state of mind.
- The court held the exclusion was not harmless because the statement bore directly on the contested mens rea element—whether DiMaria knew the cigarettes were stolen.
- The court did not find the evidence legally insufficient; it concluded the jury could convict if it rejected DiMaria’s explanation, but the jury was entitled to hear the excluded state-of-mind evidence.

## Legal Principles

- Federal Rule of Evidence 803(3) permits admission of a declarant’s statement of then-existing state of mind (including intent, motive, or plan) when offered to show that state of mind.
- The Rule’s limitation on statements of memory or belief does not bar a statement that expresses a contemporaneous intent or belief offered to prove mens rea rather than to prove the historical truth of an external fact.
- A defendant’s exculpatory out-of-court statement may be admissible under Rule 803(3); credibility and weight are for the jury.
- Exclusion of admissible evidence is not harmless when it materially impairs the defendant’s ability to contest a central element, such as knowledge that property was stolen.

## Conclusion

The court ordered a new trial because DiMaria’s contemporaneous statement suggesting he intended only to buy cheap cigarettes was admissible state-of-mind evidence under Rule 803(3), and excluding it likely affected the jury’s determination of knowledge and intent.


United States v. DiMaria, 727 F.2d 265 (2d Cir. 1984)