                        NONPRECEDENTIAL DISPOSITION
                To be cited only in accordance with Fed. R. App. P. 32.1



                United States Court of Appeals
                                For the Seventh Circuit
                                Chicago, Illinois 60604

                                  Argued July 6, 2018
                              Decided September 25, 2018

                                         Before

                         DIANE S. SYKES, Circuit Judge

                         DAVID F. HAMILTON, Circuit Judge

                         MICHAEL B. BRENNAN, Circuit Judge

No. 17-2361

UNITED STATES OF AMERICA,                       Appeal from the United States District
     Plaintiff-Appellee,                        Court for the Northern District of
                                                Illinois, Eastern Division.
      v.
                                                No. 16 CR 545
ANTONIO JOHNSON,
    Defendant-Appellant.                        Manish S. Shah,
                                                Judge.

                                       ORDER

        Antonio Johnson was charged with possessing illegal drugs and guns as a felon.
A jury convicted him solely of the drug count. Johnson raises two arguments on appeal.
First, he argues that the district judge erred by not instructing the jury that his “mere
presence” in the apartment where the drugs and guns were found was insufficient to
support a guilty verdict. He also argues that he deserves a new trial because a testifying
officer briefly referred to him as the “target” of the search warrant. We reject these
arguments and affirm.
No. 17-2361                                                                          Page 2

                                      I. Background

        Johnson was charged with possessing a firearm as a felon, 18 U.S.C. §§ 922(g)(1),
924(e)(1), and possessing heroin with intent to distribute, 21 U.S.C. § 841(a)(1). The
principal evidence at trial came from a search of a Chicago apartment pursuant to a
warrant. The only occupants at the time were Johnson and Cheyanna Wilson, his
girlfriend. Wilson lived at the apartment, and Johnson stayed there frequently. In one
bedroom the officers found two loaded guns and a plate with heroin on it. In the
kitchen they found a bag of heroin. Two officers said that during the search, Johnson
admitted that the heroin was his; four other officers said that they did not hear Johnson
say that.

       Before trial Johnson requested a jury instruction that his mere presence in the
apartment was insufficient to convict. Specifically, his proposed instruction read: “A
defendant’s presence at the scene of a crime and knowledge that a crime is being
committed is not sufficient by itself to establish the defendant’s guilt. Nor is a
defendant’s association with persons involved in a crime sufficient to prove his
participation in the crime.” The government objected, arguing that the instruction was
redundant with the elements of the offenses, which require that he “knowingly
possessed” the contraband, and thus the additional instruction could confuse the jury.
Johnson countered that he feared that the government would argue that the apartment
“was some form of stash house,” so the jury should be reminded that his presence was
insufficient to establish guilt. The judge ruled that this was “not the heartland situation
where the ‘mere presence’ instruction adds value” because Johnson could not be
convicted unless he knowingly possessed the gun and the drugs, as the offense
instructions already explained.

       At the end of trial, the judge instructed the jury that it could not convict Johnson
on either count unless he “knowingly possessed” the drugs or the firearms. And the
instructions added that “[w]ith respect to both counts of the indictment, a person
possesses an object if he has the ability and intention to exercise direction or control
over the object” and “a person acts knowingly if he realizes what he is doing and is
aware of the nature of his conduct.” In closing argument Johnson’s counsel addressed
his “mere presence” theory as follows:

       So we’re clear, possession, if you go back there and you think, well,
       Antonio Johnson was in the house, and there were guns and drugs there,
       that’s not enough to prove knowing possession. The government in this
No. 17-2361                                                                           Page 3

       case has to establish that he had knowing possession, and his mere
       presence in that house, whatever was there, is not enough to establish
       that.

       Johnson also filed a motion in limine to “preclude the government from eliciting
any testimony related to the probable cause that formed the basis for the search
warrant.” The warrant application contained a confidential informant’s assertion that
Johnson dealt drugs out of the apartment. Johnson worried that the jury would
improperly rely on the search warrant as evidence of his guilt. The judge granted
Johnson’s motion without objection from the government.

      At trial Officer Joy McClain alluded to the search warrant during direct
examination:

       Q. [W]as anyone inside of the apartment when the officers came in?

       A. Just two people.

       Q. Who were those two people?

       A. The -- I know the target of the warrant was there and a female.

Johnson objected. He argued that Officer McClain violated the order granting his
motion in limine and asked the judge to declare a mistrial. The government responded
that the judge should instead instruct the jury to disregard the answer. Johnson replied
that the damage could not be undone: Jurors would infer that he was the target since
they already knew that he and his girlfriend were the only ones in the apartment and
his girlfriend had not been arrested.

       The judge struck the answer but denied the request for a mistrial. He explained
that “the almost offhand reference to the target of the search warrant being present at
the location is [not] so prejudicial that it has deprived Mr. Johnson of a fair trial here.”
But, he added,

       I do think the jury ought to be instructed to disregard that answer. I would be
       amenable to a further instruction directing them to disregard any reference to a
       target of the search warrant as being irrelevant to the issues in this trial and not
       to enter into their considerations in any way.
No. 17-2361                                                                         Page 4

Johnson’s counsel did not want the judge to highlight the word “target,” fearing that
doing so would worsen the situation. So the judge simply instructed the jury to
“disregard the officer’s answer to the last question.”

       During cross-examination, the problem arose again. Defense counsel asked
Officer McClain to explain where Johnson and Wilson were located within the
apartment, and McClain responded as follows:

      Q: Where was Ms. Wilson?

      A: I don’t know.

      Q: Okay.

      A: All I know is there were two people there, and it was the target and the
      female.

       Defense counsel again objected, and the judge sustained the objection and
instructed the jury: “[M]embers of the jury, you’ll disregard the officer’s
characterization of individuals.” Counsel renewed the request for a mistrial, but the
judge denied it, saying:

      Well, I think the crux of the problem is the [a]llusion to there being some
      other information that incriminates the defendant and that the term
      ‘target’ could be understood to be applicable to an individual against
      whom the Chicago police officers have some suspicion or information … .

      That said, I don’t think the landscape of this trial has materially changed
      by this witness’[s] utterance the second time of the term ‘target’ in the
      context in which it has been used here in the trial … .

      Nevertheless, the witness used the term. But I adhere to my view that in
      context, it’s not unfairly prejudicial to the defendant in the way it was
      used, and instructing the jury that they are to disregard this witness’[s]
      characterization of individuals is sufficient to eliminate any risk of
      unfairness to the defendant in this trial.

        The judge’s closing instructions included this standard admonition: “If, during
the trial, I … told you to disregard something, you must not consider it.” The jury
No. 17-2361                                                                           Page 5

acquitted Johnson on the gun charge but convicted him on the drug charge. The judge
denied Johnson’s motion for a new trial and proceeded to sentencing. This appeal
followed.

                                    II. Analysis

       Johnson first argues that the judge erred by not giving his proposed “mere
presence” instruction. As Johnson sees it, the jury heard conflicting testimony about
whether he admitted that the heroin was his, and because the jurors might have
believed that he did not admit to possession, they needed to know that his mere
presence in the apartment was not sufficient to convict.

       When a judge refuses to give a requested jury instruction and the alleged error
involves a question of law, we conduct de novo review. United States v. Bloom, 846 F.3d
243, 255 (7th Cir.), cert. denied, 138 S. Ct. 366 (2017). A theory-of-defense instruction is
warranted if: “(1) the instruction is a correct statement of the law; (2) the evidence
supports the theory of defense; (3) the defense is not part of the government’s charge;
and (4) the failure to give the instruction would deprive the defendant of a fair trial.”
United States v. Brown, 865 F.3d 566, 571–72 (7th Cir. 2017), cert. denied, 138 S. Ct. 2005
(2018). The parties agree that the requested instruction was a correct statement of the
law. They disagree about the rest of the analysis.

       Johnson loses at the third and fourth steps of this framework because his defense
was already reflected in the government’s charge and he was not deprived of a fair trial.
“[A] district court’s refusal to give a mere presence instruction does not deny the
defendant a fair trial if the jury could not convict him without finding that the
defendant had the requisite ‘knowledge’ to complete the crime.” United States v. Vargas,
689 F.3d 867, 878 (7th Cir. 2012) (citing United States v. James, 464 F.3d 699, 707–08
(7th Cir. 2006)). In this case the judge instructed the jury that each count required
Johnson to have knowingly possessed the contraband. The instructions further
elaborated on this point by defining “possess” as the ability and intent to control an
object and defining “knowingly” as occurring when one is aware of and realizes what
one is doing. So the basic offense instructions precluded a conviction based on
Johnson’s “mere presence.”

       Additional reasons establish that the trial was fair. First, as the government
points out, the split verdict reflects that the jury understood that Johnson’s “mere
presence” was not enough. The jurors heard evidence, which they were entitled to
No. 17-2361                                                                           Page 6

believe, that Johnson admitted that the drugs were his. The decision to convict Johnson
on the drug charge but not the gun charge shows that they understood that his mere
presence at a scene with guns and drugs did not necessarily mean that he knowingly
possessed them both. Second, even without a mere-presence instruction, defense
counsel explained in closing argument that Johnson’s mere presence in the apartment
was not enough to warrant a conviction.

        Johnson next argues that the judge erred in refusing to grant his motion for a
mistrial based on Officer McClain’s twice-uttered statement suggesting that he was a
“target” of the search. But Johnson cannot show that this was an abuse of discretion—a
highly deferential standard. See United States v. Harden, 893 F.3d 434, 452 (7th Cir. 2018);
see also United States v. Lawrence, 788 F.3d 234, 243 (7th Cir. 2015) (discussing the uphill
battle faced by the appellant when asking to overturn a denial of a mistrial and
reviewing for abuse of discretion “with an extra helping of deference”). First, the
reference to Johnson as a “target” did not violate the literal terms of the judge’s ruling
in limine. The judge barred “any testimony related to the confidential informant’s
assertions that Mr. Johnson dealt cocaine.” The word “target” did not reveal the
informant’s assertions that Johnson sold illegal drugs.

        Second, even if the word “target” did violate the ruling, it was not prejudicial
because the judge took reasonable steps to mitigate any harm. A trial court “is in the
best position to determine the seriousness of the incident in question, particularly as it
relates to what has transpired in the course of the trial.” United States v. Clarke, 227 F.3d
874, 881 (7th Cir. 2000). Immediately after Officer McClain said “target,” the judge
instructed the jury to disregard her answer. And at the end of the trial, the judge told
the jurors not to consider any testimony that was stricken from the record. We assume
that jurors “follow limiting and curative instructions unless the matter improperly
before them is so powerfully incriminating that they cannot reasonably be expected to
put it out of their minds.” United States v. Smith, 308 F.3d 726, 739 (7th Cir. 2002). The
two brief, stricken references to “target” were not incurably prejudicial because they
were “unrelated to any of the other testimony at trial” and were “unadorned with
additional details.” Id. Given our highly deferential standard of review, Johnson has not
shown that the judge abused his discretion in declining to order a mistrial.

      Relatedly, Johnson contends that the judge should have granted his motion for a
new trial. He argues that the lack of a mere-presence instruction combined with Officer
McClain’s use of the word “target” (even though stricken) requires a new trial. The
government responds that Johnson forfeited this argument because he moved for a new
No. 17-2361                                                                        Page 7

trial based on the separate, not cumulative, effect of these two alleged errors. The
government reads Johnson’s motion too narrowly. Johnson raised these two arguments
under the same heading seeking a new trial and used separate subheadings for better
organization. There was no forfeiture, so we review for abuse of discretion, not plain
error. See Haze v. Kubicek, 880 F.3d 946, 950 (7th Cir. 2018). And the judge was well
within his discretion in declining to order a new trial. As we have explained, there was
no jury-instruction error, and the judge’s mistrial ruling was not an abuse of discretion.

                                                                              AFFIRMED.
