A trait, characteristic, property, or feature of a person (including a person's mental or emotional state or condition) is admissible to show the conduct of the person if the trait, characteristic, property, or feature is not or is not considered a trait of character, a propensity, or a disposition.

United States v. Brock, 667 F.2d 1311, 1315 n.2 (9th Cir. 1982) (upholding trial court's admission of the testimony of Bernard's attempts to evade DEA surveillance as non-hearsay evidence because "the evasive attempts....Nonverbal conduct that is not intended as an assertion is not a "statement" for purposes of Federal Rule of Evidence 801(a) or a comparable State rule and thus cannot be hearsay.

McEuin v. Crown Equipment, Corp., 328 F.3d 1028, 1035 (9th Cir. 2003) (holding, in plaintiff forklift operator's action against defendants manufacturer and distributor for product liability, that since "the reports would be....Federal Rule of Evidence 803(3) or a comparable State rule creates a hearsay exception for a statement by a declarant setting forth the declarant's perception of the declarant's internal state (including mental states, bodily conditions, feelings, motives, designs, and intentions) at the time the declarant makes the statement.

Fed. R. Evid. 801(d)(2)(E) (quote the relevant portion of the Rule).The co-conspirator exemption from the hearsay rule applies only if the trial court concludes that a preponderance of of the evidence shows that the statement of the alleged co-conspirator was made during the conspiracy rather than before or after the conspiracy.