                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-3306
                                   ___________

United States of America,             *
                                      *
           Plaintiff - Appellee,      *
                                      * Appeal from the United States
      v.                              * District Court for the District
                                      * of Minnesota.
James Naiden,                         *
                                      *
           Defendant - Appellant      *
                                 ___________

                             Submitted: March 15, 2005
                                Filed: October 4, 2005
                                 ___________

Before MURPHY, BYE, and SMITH, Circuit Judges.
                           ___________

MURPHY, Circuit Judge.

       James Naiden was convicted by a jury of attempting to entice a child through
the internet and mails to engage in unlawful sexual activity and of attempting to
induce a child to travel for unlawful sexual activity. He was sentenced to 54 months
and now appeals, arguing that the district court1 erred by not admitting evidence of
a comment he made to a friend. We affirm.




      1
       The Honorable James M. Rosenbaum, Chief Judge, United States District
Court for the District of Minnesota.
       On February 13, 2003, Detective Douglas Roderick of the Dayton, Ohio Police
Department logged into an America Online chat room called "ILuvOlderMen" using
the screen name Stephiek06. Roderick created an online profile identifying
Stephiek06 as a fourteen year old girl named Stephanie from Dayton; this profile was
available to other visitors in the chat room. Although "Stephanie" did not participate
in the chat on that day, an instant message was sent to her by Naiden, who was using
the screen name Jack123904.

       Naiden identified himself as "James, single, 59, Minnesota." Stephanie
responded that she was "Steph, single, 14, Ohio." They exchanged photographs,2 and
Naiden asked Stephanie whether she was a virgin. She said she was. Naiden then
asked whether she would be interested in coming to Minneapolis for a visit, in which
case her "virginity would be over." Stephanie expressed interest, and they discussed
plans for her to buy a bus ticket. Naiden said he was concerned that these plans be
kept secret so that he would not get into trouble. He also tried to learn what her
mother's reaction would be if Stephanie pretended to run away for a few days. At the
end of this first conversation, Naiden told Stephanie that he would "teach [her] how
to fuck."

      Naiden's instant messaging correspondence with Stephanie continued on
February 15. He confirmed that she was fourteen years old and a virgin and
suggested that they might marry in a few years when she would be seventeen or
eighteen and he would be in his sixties. He told her to find her birth certificate "so
when the time comes down the road," she could prove her age. Naiden explained his
sexual plans for the two of them in explicit detail and told her to schedule her visit
when she would not be menstruating. He also discussed taking nude photographs of
her.




      2
       Stephanie's photograph was actually that of a youthful police officer.

                                         -2-
       Initially Naiden told Stephanie during the February 15 conversation that he did
not want to send her money for a ticket because he could be arrested for contributing
to the delinquency of a minor but that he would buy her return ticket to Dayton after
she arrived in Minneapolis. When she responded that it would take her two to three
weeks to save up enough money from babysitting to buy a ticket to Minneapolis, he
agreed to send her $30 for it. He sent the money in an envelope without a return
address to a post office box which she told him belonged to her grandfather but was
opened only by her. Naiden reiterated the importance of secrecy and asked again
what her mother's response would be to her absence. He also shared his planned
explanation to his landlady for Stephanie's presence: he would tell her that Stephanie
was his niece and that she would be visiting a lot because her parents were separating.

       The correspondence continued into March 2003. Stephanie had said she was
in ninth grade, and on several occasions Naiden urged her to study hard and get good
grades so that she could go to college. He also encouraged her to take a foreign
language in her remaining three years of high school. In anticipation of their meeting,
he advised her to get birth control pills from the school nurse and assured her that
they would use baby oil so that her first experience with intercourse would not be too
painful. He repeatedly expressed his concern about being caught, telling Stephanie
on one occasion that a Minnesota man had recently been arrested for enticing a fifteen
year old girl from South Dakota to come see him for sex. Naiden instructed
Stephanie to delete his e-mails and told her he had not inscribed a gift book of his
published poems because he was concerned that her mother's suspicions would be
aroused if she were to see that it was signed by the author.

      Stephanie told Naiden she had bought a ticket to Minneapolis for February 28,
and she suggested they plan her return trip after she arrived. Naiden asked her to
delay her visit, telling her in an e-mail, "We need a better plan before you come here.
We need to think ahead of the game, not short-sighted. I can be arrested and lose
everything I have if the police here or in your town find out and trade information."
He insisted that they create a plan for both her arrival and departure and decide what

                                         -3-
to tell her mother. About a week later Stephanie told him that her mother was going
to spend a long weekend in Kentucky with her boyfriend and that there would be no
school that Friday because of teacher training. She told Naiden that her mother had
agreed to let her stay at a friend's house. He helped her make the remaining plans for
a trip to Minneapolis on March 7 and for a cover story to tell her mother. In their last
correspondence on March 5, Naiden told Stephanie, "[W]e will fuck like crazy for
these two days."

       Naiden was arrested at the Minneapolis bus station on March 7, 2003 by
officers from the Minneapolis Police Department and the United States Postal
Inspector. After being read his Miranda rights, Naiden told officers that he had not
intended to have sex with Stephanie because he was impotent and because it is illegal
to have sex with a minor. In his pocket he nevertheless had medication and a syringe
for penile injection therapy, and evidence was later obtained that his erectile
dysfunction was being treated successfully.3 Searches of Naiden's car and apartment
uncovered a new disposable camera, baby oil, and print outs of instant messages with
many people but none with Stephiek06. He was subsequently indicted for attempting
to entice a child through the internet and mails to engage in unlawful sexual activity,
in violation of 18 U.S.C. § 2422(b), and of attempting to induce a child to travel for
unlawful sexual activity, in violation of 18 U.S.C. § 2422(a).

      At trial the government introduced evidence of Naiden's online relationship
with Stephanie, as well as evidence of another with a fifteen year old girl from Texas.
When that girl told Naiden she was a virgin, he had asked whether she would have
sex with him if he traveled to Texas. Naiden's principal defense to the charges in this
case was that he had not believed that Stephanie was under age and that he therefore
lacked the intent to commit the crimes with which he was charged. He relied on
evidence of his online relationship with a person using the screen name of

      3
       Since Naiden did not testify, the government did not attempt to introduce his
statements to the officers or the testimony of his treating urologist.

                                          -4-
PixieTinkerbelle, whose profile described her as a seventeen year old high school
student. Like Stephiek06, PixieTinkerbelle met Naiden in a chat room and conducted
a sexually explicit correspondence with him. She eventually told Naiden that she was
an adult, and Naiden used this experience to argue at trial that he had suspected that
Stephiek06 was also really an adult. The jury convicted him on both counts, and the
district court sentenced him to 54 months in prison.

       On appeal Naiden argues that the district court committed reversible error by
excluding proffered testimony from his friend Louise Viste-Ross. Naiden allegedly
told Viste-Ross on February 14, 2003 that he had met someone online who said that
she was fourteen, but that he did not believe she really was fourteen. Naiden
conceded that his statement was hearsay but argued that it was admissible under
Federal Rule of Evidence 803(3), which provides an exception to the hearsay rule for
statements of the declarant's then existing state of mind. The district court ruled that
Rule 803(3) did not apply to the proffered evidence and declined to admit it. We
review the district court's decision to exclude evidence for an abuse of discretion and
will reverse a conviction only when an improper evidentiary ruling has affected
substantial rights or had more than a slight effect on the verdict. United States v.
Ballew, 40 F.3d 936, 941 (8th Cir. 1994).

      Naiden's statement that he did not believe his online acquaintance to be
fourteen years old is hearsay under Rule 801 because it was an out of court statement
offered to prove the truth of the matter asserted. That Naiden did not believe
Stephanie was fourteen was offered to show that he had not intended to have sex with
a minor. Naiden submits that the evidence fits the Rule 803(3) exception because the
statement was of his "existing state of mind."

       Underlying the Rule 803 exceptions is the idea that "circumstantial guarantees
of trustworthiness" may be found in some hearsay statements, making them as reliable
as in court testimony. Fed. R. Evid. 803 advisory committee's note. A key
circumstantial guarantee of trustworthiness in respect to Rule 803(3) is that it requires

                                          -5-
that statement be contemporaneous with the declarant's "then existing" state of mind,
emotion, sensation, or physical condition. The advisory committee's note reports that
the rule is essentially a specialized application of Rule 801(1), premised on the
supposition that "substantial contemporaneity of event and statement negate the
likelihood of deliberate or conscious misrepresentation." Fed. R. Evid. 803(1)
advisory committee's note; see also United States v. Udey, 748 F.2d 1231, 1243 (8th
Cir. 1984) (connecting Rule 803(3) to Rule 801(1) when discussing the lapse of time
between an event and a statement about the event).

       Even if we assume that Naiden was speaking of Stephanie when he referred to
a new person he had met online, the evidence was properly excluded because his
statement to his friend on February 14 was not substantially contemporaneous with
his conversation with Stephanie on February 13. His statement that he did not believe
his new acquaintance to be fourteen was not made as an immediate reaction to his
communication with her, but after he had had ample opportunity to reflect on the
situation. See United States v. Partyka, 561 F.2d 118, 125 (8th Cir. 1977)
(contrasting "self-serving declarations about a past attitude or state of mind" with
"manifestations of [the declarant's] present state of mind, his immediate reaction" to
an event).

       Partyka illustrates how our court has focused on whether the declarant's
statement is "trustworthy" when it has had occasion to analyze the admissibility of
hearsay evidence under the Rule 803(3) exception. See Black Hills Jewelry Mfg. Co.
v. Gold Rush, Inc., 633 F.2d 746, 752 (8th Cir. 1980). Declarations about "a past
attitude or state of mind," Partyka, 561 F.2d, at 125, are less likely to be reliable
because trustworthiness is diminished if a declarant has had the time to reflect on the
potential implications of his conduct. See U.S. v. LeMaster, 54 F.3d 1224, 1231-32
(6th Cir. 1995); U.S. v. Neely, 980 F.2d 1074, 1083 (7th Cir. 1992); U.S. v. Miller, 874
F.2d 1255, 1264 (9th Cir. 1989).The facts of this case show how the passage of time
may prompt someone to make a deliberate misrepresentation of a former state of
mind. Naiden's communication with Stephanie on February 15, the day after his

                                          -6-
conversation with Viste-Ross, provides several examples of how he was otherwise
attempting to conceal his criminal intentions. These include his plans to tell his
landlady that Stephanie was his niece, his reluctance to send Stephanie money
through the mail, and his eventual acquiescence in forwarding it without a return
address. The evidence here highlights the significance of the contemporaneous
requirement in ensuring that hearsay evidence be reliable in order for it to be
admissible under Rule 803(3). We conclude that the district court did not abuse its
discretion by excluding the proffered testimony.

       Even if the exclusion of the evidence were viewed as erroneous, however, it
would not justify overturning Naiden's conviction because the evidence did not affect
his substantial rights or have more than a slight effect on the verdict. The proffered
evidence was not very strong. The statement allegedly made to Viste-Ross did not
identify the new acquaintance as Stephanie or even as a person Naiden had met on
February 13. The investigation revealed that Naiden was communicating with many
people online, and at least two of the others had represented themselves as minors
(PixieTinkerbelle and the fifteen year old girl from Texas). Even if we were to
assume that the statement referred to Stephanie, it did not say how old he thought she
was. He could have thought that she was not fourteen, but more plausibly fifteen or
sixteen. The proffered comment to Viste-Ross was also made very early in his
relationship with Stephanie and could therefore have represented a state of mind quite
different from Naiden's mindset in his March e-mails or when he went to meet
Stephanie's bus on March 7.

      The second and more important reason not to interfere with the jury verdict
here is the overwhelming amount of evidence establishing Naiden's belief that
Stephanie was a minor. He appears from the evidence to have been very worried
about the danger of being apprehended for enticing a minor to have sex. Naiden
repeatedly exhorted Stephanie to keep their relationship a secret, he deleted all of her
communications and instructed her to do likewise, he sent her money and his book
without a return address or dedication, he created a cover story for his landlady, and

                                          -7-
insisted that Stephanie create a plausible one for her mother as well. He also inquired
about her high school studies and advised her to see the school nurse for birth control
pills, evidence indicating that he believed Stephanie to be an adolescent. We
conclude that the proffered evidence would not introduce reasonable doubt in light
of all of the contrary evidence admitted at trial.

      Since the district court did not abuse its discretion or commit reversible error
in excluding the proffered evidence, we affirm the judgment.

BYE, Circuit Judge, concurring.

      I write separately because I believe the district court erred in excluding Viste-
Ross's testimony as inadmissable hearsay.

       Naiden was charged with the offenses of using the Internet/mail in attempt to
entice a child for unlawful sexual activity and attempting to induce a child to travel
for unlawful sexual activity. The alleged criminal activity commenced on February
13, 2003, when Naiden began an online relationship with Stephanie, and continued
until March 7, 2003, when he went to the Greyhound station to meet her. To convict
Naiden of the offenses, the government had the burden of proving Naiden believed
Stephanie was under 18 years of age. Thus, evidence of Naiden's belief of
Stephanie's age during the time he allegedly engaged in the charged criminal conduct
was relevant. At trial, Naiden sought to introduce his friend Viste-Ross's testimony
that during a discussion on February 14, 2003 Naiden told Viste-Ross, "I am
corresponding with someone online who says they are fourteen but I do not believe
it." The government objected to the admission of the testimony on the grounds of
hearsay. Defense counsel argued Naiden's statement fell under an exception to the
hearsay rule as a statement demonstrating Naiden's state of mind. The district court
excluded Viste-Ross's testimony on the grounds it was inadmissable hearsay, without
further explanation.


                                         -8-
       Hearsay "is a statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of the matter asserted."
Fed. R. Evid. 801. As noted by the majority, Naiden's statement to Viste-Ross
constitutes hearsay because it was a statement Naiden made while out of court and
introduced to prove the truth of the matter asserted—that Naiden did not believe
Stephanie was 14 years old. Rule 802 provides hearsay is inadmissable unless it falls
under one of the Rule's exceptions. Rule 803(3) excludes from the rule prohibiting
hearsay: "A statement of the declarant's then existing state of mind, emotion,
sensation, or physical condition (such as intent, plan, motive, design, mental feeling,
pain, and bodily health), but not including a statement of memory or belief to prove
the fact remembered or believed . . . ." Fed. R. Evid. 803(3). Naiden's statement "I
do not believe it" fits under Rule 803(3) because it is a statement of Naiden's then
existing state of mind.

       The language of Rule 803(3) requires the statement to indicate the declarant's
present state of mind rather than a prior state of mind. As the majority notes, a key
circumstantial guarantee of trustworthiness with respect to Rule 803(3) is the
requirement that the statement express the declarant's then existing state of mind. The
majority asserts Naiden's statement to Viste-Ross was a declaration of his "former
state of mind," i.e. his state of mind on February 13 during his online conversation
with Stephanie. I disagree. Naiden's use of present tense in stating "I do not believe
it" shows the statement manifested Naiden's belief at the time of his discussion with
Viste-Ross. See United States v. Partyka, 561 F.2d 118, 125 (8th Cir. 1977) (holding
district court erred in excluding defendant's spouse's testimony about statements
defendant made to a third party because statements were not declarations of past state
of mind but manifestations of present state of mind as immediate reactions to third
party's proposal during discussion). Moreover, Naiden's state of mind on February
14 is relevant because February 14 is within the period of time during which Naiden
allegedly engaged in the conduct forming the basis of the charged offenses, as noted
in the indictment. Compare United States v. Udey, 748 F.2d 1231, 1243 (8th Cir.
1984) (affirming district court's exclusion of exculpatory statements defendant made

                                          -9-
on June 5, which was after his arrest and two days after criminal conduct, because
defendant's present state of mind on June 5, the date he made the statements, was not
relevant to his state of mind on June 3, the date of the offense in the indictment).

       The majority contends the district court properly excluded the statement
because Naiden had an opportunity to reflect and fabricate his statement. The
absence of an opportunity to reflect is not a requirement included in the text of Rule
803(3), nor have our cases to date governing the state of mind exception under Rule
803(3) imposed such a requirement. See Udey, 748 F.2d at 1243; Partyka, 561 F.2d
at 125. According to the treatises, "[t]he federal courts are in some conflict over the
issue of whether the court in admitting a statement under Rule 803(3) is authorized
to exclude statements based on questionable motivation of the declarant or
circumstances of making of the statement." McCormick on Evidence § 274 n.8; see
also Christopher B. Mueller & Laird C. Kirkpatrick, 4 Federal Evidence § 438. In my
opinion, if a hearsay statement meets the requirements of Rule 803(3), and is not
excluded under another Rule, then the jury should consider evidence of the self-
serving nature of the statement in determining how much weight to give it. As stated
in one treatise:

             The very fact that the exception is silent about candor suggests
      that courts should be at least hesitant to exclude statements that
      otherwise fit, on the basis of suspicion on this score. The scheme of
      categorical exceptions reinforces this point (satisfying express
      requirements is enough)—only a few, such as the catchall and the ones
      for business and public records, include broad-brush references to
      trustworthiness. Adding some support to this point is FRE 806, which
      lets parties impeach, and support the credibility of, those who make
      statements admitted under the various exceptions.

Mueller & Kirkpatrick, 4 Federal Evidence § 438. As an example, in the instant case
the government argues if the district court had admitted Naiden's statement the result



                                         -10-
would have been devastating for Naiden because it would have permitted the
government to introduce damaging evidence to impeach Naiden's statement.

       Even if it were proper for the district court to exclude Naiden's statement based
on questions about candor, in my view, the facts in this case did not present the
district court with a basis to exclude Naiden's statement on such grounds. In the cases
in which other courts have considered an opportunity to reflect and fabricate as a
permissible consideration under Rule 803(3), the courts generally have considered the
amount of time that has passed between the time the exculpatory statement was made
and the last alleged act forming the basis of the criminal conduct or the moment the
defendant knows he is the subject of criminal investigation. See, e.g., United States
v. Reyes, 239 F.3d 722, 743 (5th Cir. 2001) (recorded statements made two months
after defendant's last criminal act and after defendant suspected criminal investigation
properly excluded); United States v. LeMaster, 54 F.3d 1224, 1231-32 (6th Cir. 1995)
(statements made 24 hours after relevant conduct after defendant, who was a lawyer,
knew he was under investigation and that FBI had recorded proof against him
properly excluded); United States v. Jackson, 780 F.2d 1305, 1315 (7th Cir. 1986)
(noting "defendant's statements were made two years after the fuel-stealing scheme
had ended," and defendants had "potentially an incentive to misrepresent the truth in
their conversations"). Naiden's exculpatory statement was made well before his arrest
and before his last criminal act. The fact that Naiden continued to engage in
incriminating online conversations with Stephanie for three weeks after making the
statement to Viste-Ross shows Naiden did not know he was the subject of an
undercover police operation when he made the statement to Viste-Ross.

       The majority appears to focus on the amount of time that has passed between
the time the exculpatory statement was made and the first act forming the basis of the
alleged criminal conduct. The majority states: "The facts of this case illustrate how
the passage of time may prompt someone to make a deliberate misrepresentation" of
their state of mind. The court cites examples of Naiden's attempts to "conceal his
criminal intentions" on "February 15, the day after his conversation with Viste-Ross,"

                                         -11-
including Naiden's plans to tell his landlady Stephanie was his niece and his
reluctance to send Stephanie money through the mail. It cannot be the passage of
time, however, which prompted Naiden to conceal his crime because, according to
the government, Naiden began concealing his crime from the very beginning. The
government argues: "In the February 13, 2003 communication with Stephanie,
Naiden had already begun crafting lies to mask his plan to have sex with a child. In
this very first communication, he wanted to stage Stephanie's disappearance from
Ohio as her running away from home. He told Stephanie he would go to jail if he
were caught and demanded she 'tell absolutely no one' about her plan to travel to
Minnesota to have sex with him." Appellee's Br. at 15-16 n.8. I also do not believe
evidence demonstrating Naiden's attempt to conceal his criminal activity should be
the basis for excluding Naiden's statement as self-serving. Relying on evidence of
Naiden's attempt to conceal his criminal activity to exclude his exculpatory statement
necessarily presumes the existence of criminal activity to conceal. This reverses the
presumption of innocence at trial to a presumption of guilt.

       Although I believe the district court erred in excluding Viste-Ross's testimony
as inadmissible hearsay, I agree the error was harmless in light of the overwhelming
evidence demonstrating Naiden's guilt. Accordingly, I concur in the judgment.

                       ______________________________




                                        -12-
