                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 11-1661

U NITED S TATES OF A MERICA,
                                                    Plaintiff-Appellee,
                                  v.

C RISTOBAL V ARGAS,
                                               Defendant-Appellant.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
         No. 1:08-cr-00630-1 —Matthew F. Kennelly, Judge.



      A RGUED A PRIL 5, 2012—D ECIDED A UGUST 10, 2012




 Before R OVNER, W OOD , and W ILLIAMS, Circuit Judges.
  W ILLIAMS, Circuit Judge. A jury convicted Cristobal
Vargas of attempting to possess, with an intent to dis-
tribute, more than 500 grams of cocaine in violation of
21 U.S.C. §§ 841(a)(1) and 846. Vargas claimed that he
was just buying a truck when he appeared in the parking
lot of a local pharmacy with a shoe box stuffed with
$45,000 in cash. He claimed that was the reason for his
numerous telephone conversations with Estebean Rojo,
2                                             No. 11-1661

the government’s confidential source and, why he was
in the parking lot, with the money, on the day he was
arrested. But the government established at trial that
the Drug Enforcement Agency instructed Rojo to get
close to Vargas as part of an investigation into “possible
cocaine trafficking,” Vargas and Rojo’s conversations
contained countless coded references to cocaine and
cocaine trafficking, and Vargas took a “substantial step”
in his attempt to possess cocaine by appearing at the
pharmacy’s parking lot with $45,000 in cash.
  Vargas now appeals his conviction, arguing that the
district court erred by allowing Rojo to testify that he
had been told to get close to Vargas because of “possible
cocaine trafficking.” We agree with Vargas that the state-
ment should not have been admitted, but the court’s
error was harmless in light of the overwhelming evi-
dence showing Vargas’s guilt beyond a reasonable
doubt. Vargas also finds error in the district court’s
refusal to admit a portion of his videotaped arrest
during which he blurted, “I was here buying a truck,
man!” He believes the statement should have been ad-
mitted under the doctrine of completeness. We disagree.
That doctrine is confined by the strictures of the hearsay
rule, and Vargas cannot identify a hearsay exception
that applies. Finally, Vargas claims that he must be
given a new trial because the district court failed to
inform the jury that it could not convict him for simply
being at the scene of a crime. But the jury charge ade-
quately covered Vargas’s defense theory and required
the jury to find beyond a reasonable doubt that Vargas
No. 11-1661                                               3

intended to possess cocaine and he knowingly took a
substantial step toward that aim. So Vargas’s requested
“mere presence” instruction was not relevant and the
district court did not err by refusing to give it. For these
reasons, we affirm Vargas’s conviction.


                   I. BACKGROUND
  At some point in 2008, the Drug Enforcement Agency
received information about cocaine being trafficked out
of a muffler shop on South Stony Island Avenue in Chi-
cago. Chicago Police Officer Terrance Looney, a task
force officer detailed to the DEA, spearheaded an in-
vestigation into the shop. Officer Looney identified
Cristobal Vargas as a suspect and coordinated the agency’s
request that Estebean Rojo, a confidential informant,
pose as a drug dealer from Mexico to infiltrate the drug
ring. The DEA chose Rojo because he is from Mexico,
speaks fluent Spanish, owns a large sports utility vehicle
with Mexican license plates, and he had been a DEA
confidential informant more than thirty times in the
last fourteen years.
  Before sending Rojo to the muffler shop, Officer Looney
and other agents gave him detailed instructions about
what to do and why. Agents described the investigation
as one into “possible cocaine trafficking,” showed Rojo
a photograph of Vargas, and told him to drive his SUV
to the muffler shop to see if Vargas was willing to pur-
chase cocaine. As part of this plan, Rojo would appear to
be engaged in a telephonic drug deal with an indi-
vidual named “Pepe,” who was actually an undercover
4                                           No. 11-1661

officer. Rojo and Pepe would discuss the deal via a two-
way, walkie-talkie feature available on Rojo’s mobile
phone, using “narcotics lingo.” The agents wanted
Vargas to hear the particulars of this purported drug
deal, suspecting that Vargas might respond by trying to
purchase drugs from Rojo.
  When Rojo arrived at the muffler shop on August 1,
2008, he did as instructed. Using the walkie-talkie
feature on his phone, Rojo initiated a telephone conver-
sation with Pepe. Rojo chirped, “How is Laredo?” Pepe
responded, “Hot, hot in every way.” Rojo then continued,
“How are the guys?” This solicited Pepe’s reply, “They
already jumped over the border.” All of this language
is code for cocaine trafficking. Apparently overhearing
Rojo’s and Pepe’s conversation, Vargas interjected:
“What kind of guys are these?” Rojo answered, “They
are good ones.” Not done, Vargas proceeded, “What color
are the guys? Green or White?” Rojo clarified that the
“guys” were white and, after Vargas inquired about
price, promised a good deal.
  Over the next few days, Vargas and Rojo had almost
a dozen phone conversations about the “guys,” all of
which were recorded. Officer Looney and several DEA
agents, meanwhile, continued to move forward with
their investigation, conducting surveillance on Vargas
to confirm his employment at the muffler shop and
providing Rojo with additional instructions on how to
engage him in a drug deal. On August 7, 2008, Officer
Looney told Rojo to call Vargas and schedule the
exchange to occur in the parking lot of a Walgreens
No. 11-1661                                                  5

pharmacy located near the muffler shop. Officer Looney
directed Rojo to call Vince Ozuna, another undercover
officer, when Rojo had confirmed that Vargas brought
the money he promised to complete the deal. Rojo’s
call would serve as the covert “arrest signal.”
   Vargas arrived at the Walgreens parking lot in a van
driven by another individual. Carrying a shoe box con-
taining $45,000 in cash, Vargas left the van and entered
the passenger’s seat of Rojo’s vehicle. This entire
exchange was surreptitiously recorded. Rojo and Vargas
discussed the deal, and Rojo requested that Vargas “[g]o
ahead, count it.” Vargas responded, “No—how we
gonna count it? . . . How are [we] gonna count it? I don’t
think we can count all of this here . . . The job is all there.
It’s counted already.” Appeased, Rojo then detailed
how the transaction would work: Pepe would pull
up beside Rojo’s vehicle in a black truck with the doors
open so Vargas could “[g]rab the package and take . . . the
knapsack.” Vargas inquired, “Is it all escamita or what?”
Rojo answered, “You’re gonna see it. If you don’t like
it, you give it back to me. I’ll stay here with you. And
besides that, I’m giving you the other two, so please
don’t [mess with] me, please.” Vargas then called Officer
Ozuna and told him that “[e]verything is ready.” DEA
agents arrived shortly after receiving the signal and
arrested Vargas.
  While effectuating the arrest, one of the agents had his
gun drawn and asked Vargas, “What is that? . . . What is
that? There’s dope or money in there?” (referring to the
shoe box.) Vargas blurted, “There’s money.” The agent
6                                               No. 11-1661

then asked how much money was in the shoe box, and
Vargas exclaimed, “I was here buying a truck, man!” All
of this was recorded, but the videotape ended a few
seconds later.
   A grand jury indicted Vargas on one count of at-
tempting to possess, with the intent to distribute,
500 grams or more of cocaine in violation of 21 U.S.C.
§§ 841(a)(1) and 846. At trial, the government put Rojo
on the stand. Rojo told the jury that the DEA had in-
structed him to “have a conversation with Mr. Vargas,
try to get close to Mr. Vargas because of a possible—
because of possible cocaine trafficking and try to go to
his auto shop.” Defense counsel immediately objected,
requested a sidebar, and moved for a mistrial. Counsel
argued that the government’s question elicited unfairly
prejudicial propensity evidence. The government dis-
agreed, pointing out that Rojo “didn’t say anything
about the defendant’s background” and he had been
“instructed not to talk about” other drug deals. The
court overruled defense counsel’s objection and found
that the statement was not unfairly prejudicial because
it did not reference a “particular transaction.” Defense
counsel did not request, and the court did not give a
limiting instruction to the jury regarding Rojo’s statement.
  The government also submitted as evidence the re-
cordings and transcripts (translated into English) of ten
conversations between Rojo and Vargas. The conversa-
tions occurred at various times between August 4, 2008
and August 7, 2008. On the calls, Rojo and Vargas dis-
cussed “guys,” “pretty white . . . carpets,” “tickets,”
No. 11-1661                                              7

“guerejas,” and “squares”; Rojo testified that these were
code words for cocaine. The two men also talked price.
Rojo informed the jury that, at one point on the tapes,
when he responded to a question by Vargas regarding
“the number” of the “guys” by saying “they could be
twenty,” he meant that the cost of the cocaine would be
$20,000 per kilogram. Special Agent Charles Baumgartner
corroborated Rojo’s interpretation. He confirmed that
Vargas and Rojo used words during their conversations
that narcotics dealers frequently use to avoid explicitly
talking about the drug being trafficked.
  Officer Looney, Special Agent Baumgartner, Investigator
James Scannell, and Special Agent Kestutis Jodwalis
each described their role in investigating Vargas. They
attested to their surveillance of Vargas, their interpreta-
tion of his recorded conversations as referencing co-
caine and cocaine trafficking, and their knowledge of
the average price for a kilogram of cocaine at the time
of Vargas’s arrest. The government also played an edited
version of the surveillance video showing Vargas’s
arrest. Defense counsel requested in limine, and again
during trial, that for the sake of completeness the jury
be shown the part of the video during which Vargas
shrieked, “I was here buying a truck, man!” The
district court denied those requests.
  Vargas did not testify in his own defense. But he did
present Santiago Vaca, who stated that Vargas some-
times purchased and repaired used vehicles for resale.
The cornerstone of Vargas’s defense, according to
defense counsel, was that he had always intended to
buy a truck, not cocaine.
8                                               No. 11-1661

  At the close of the evidence, the district court instructed
the jury that “the government must prove each of the
three following propositions beyond a reasonable doubt”:
    Number 1. The defendant intended to possess a con-
    trolled substance and intended to transfer it to
    another person. . . .
    Number 2. The defendant believed that the sub-
    stance was some kind of controlled substance. . . .
    Number 3. The defendant knowingly took a sub-
    stantial step toward possessing a controlled sub-
    stance, intending to possess the controlled substance.
    A substantial step is an act beyond mere planning or
    preparation to commit the crime but less than the
    last act necessary to commit the crime.
  To accommodate Vargas’s pre-trial request, the court
also gave a “mere association” instruction—“The defen-
dant’s association with persons involved in a crime
scheme is not enough by itself to prove his participation
or membership in the crime.” But the court rejected
Vargas’s recommendation to instruct the jury that
“[a] defendant’s presence at the scene of a crime and
knowledge that a crime is being committed is not
alone sufficient to establish the defendant’s guilt.”
  The jury convicted Vargas. He moved, post-trial, for
judgment of acquittal or, in the alternative, a new trial.
He argued that Rojo’s statement about “possible cocaine
trafficking” should have been excluded, the portion of
the video during which he said he was buying a truck
should have been admitted, and the jury should have
No. 11-1661                                              9

received his recommended instruction. The district
court denied Vargas’s motion and entered judgment.
Vargas now appeals.


                     II. ANALYSIS
  On appeal, Vargas identifies three trial errors that he
maintains warrant reversal. First, he argues that the
district court committed prejudicial error by admit-
ting Rojo’s statement regarding “possible cocaine traffick-
ing.” Second, he contends that the district court violated
the rule of completeness by not admitting the portion of
his arrest video where he claimed that he was buying
a truck—a statement that he contends is admissible
under the excited-utterance or state-of-mind hearsay
exceptions. Finally, Vargas insists that the district court
erred by not instructing the jury on his “mere presence”
theory of the case. The government disagrees with each
of Vargas’s contentions and argues that even if there
was error, it was harmless. We address each issue in turn.


 A. Rojo’s Statement Regarding “Possible Cocaine
    Trafficking” Should Not Have Been Admitted
  Vargas’s first point of contention is that the district
court should have granted his mistrial motion after Rojo
testified that DEA agents instructed him to get close
to Vargas as part of an investigation into “possible
cocaine trafficking.” Vargas argues that Rojo’s state-
ment constituted unfairly prejudicial propensity evi-
dence that “invited the jury to draw an improper infer-
10                                              No. 11-1661

ence that his mere presence at the muffler shop could
be connected with drug trafficking, thus making the
government’s claim that he intended to buy drugs
from Rojo seem more trustworthy and reliable.” The
government counters that the district court correctly
concluded that Rojo’s remark did not reference any
particular bad act, and the statement was not offered
to show propensity. According to the government, the
statement simply provided foundation for the jury to
understand Rojo and Vargas’s subsequent interactions.
The government also argues that any error was harmless.
  We review a district court’s denial of a motion for
mistrial for an abuse of discretion. United States v.
Danford, 435 F.3d 682, 686 (7th Cir. 2006). Our review is
“highly deferential,” id., because the 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). We, therefore,
“must affirm unless we have a strong conviction that
the district court erred,” id., and the error committed was
not harmless. See United States v. Mazzone, 782 F.2d 757,
763 (7th Cir. 1986) (“If the impact seems to have been
nil (“harmless”), that is just another way of saying that
the trial was not poisoned, due process was not denied,
reversible error was not committed.”). The ultimate
inquiry then is “whether the defendant was deprived of
a fair trial.” Clarke, 227 F.3d at 881.
  In the present case, Vargas based his mistrial motion
on the district court’s allegedly erroneous admission of
No. 11-1661                                            11

propensity evidence. This implicates the district court’s
ruling on an evidentiary matter, which we also review
for an abuse of discretion. United States v. Rogers, 587
F.3d 816, 819 (7th Cir. 2009). We will reverse only if the
record contains no evidence on which the district court
could have rationally based its ruling. See id.
  The evidentiary dispute in this case results from the
way the two sides characterize Rojo’s statement. Vargas
claims that Rojo’s testimony is improper propensity
evidence; the government maintains that it is direct
evidence of the charged offense. Vargas argues that the
government’s argument relies on the “inextricably in-
tertwined” doctrine that we overruled in United States
v. Gorman, 613 F.3d 711, 719 (7th Cir. 2010) (“Henceforth,
resort to inextricable intertwinement is unavailable
when determining a theory of admissibility.”). Under
that now-defunct doctrine, “evidence inextricably inter-
twined with charged conduct is, by its very terms, not
other bad acts and therefore, does not implicate
Rule 404(b) at all.” Id. at 717-18. Examples of what we
formerly considered admissible under the doctrine
include evidence “necessary to provide the jury with a
complete story of the crime on trial”; evidence that if
absent “would create a chronological or conceptual void
in the narrative of the charged offense”; and evidence
that “is so blended or connected that it incidentally in-
volves, explains the circumstances surrounding, or
tends to prove any element of the charged offense.” United
States v. Boone, 628 F.3d 927, 933 (7th Cir. 2010) (citing
cases). This evidence is accurately described as “contex-
tual”—it fills what would otherwise be a void in the
12                                            No. 11-1661

circumstances, chronology, or narrative of the defendant’s
alleged criminal conduct. See id. This is precisely what
the government argues Rojo’s statement provided the
jury: context. According to the government, the state-
ment “established the only obvious point that Rojo
was assisting an investigation of possible cocaine traf-
ficking” and it “provided foundation for the jury to
understand Rojo’s subsequent interactions with [Vargas].”
  Gorman does not stand for the proposition that “founda-
tion” or “contextual” evidence is always inadmissible.
See United States v. Foster, 652 F.3d 776, 784 (7th Cir.
2011) (explaining that after Gorman, “we instructed
district courts to consider whether such evidence would
be admissible either under Rule 404(b) or as direct evi-
dence of the charged offense.”). As we explained in
Gorman, “If evidence is not direct evidence of the
crime itself, it is usually propensity evidence simply
disguised as inextricable intertwinement evidence, and
is therefore improper, at least if not admitted under
the constraints of Rule 404(b).” Gorman, 613 F.3d at 718.
But Gorman does offer a prime example of direct, as
opposed to propensity, evidence. The defendant there
was tried and convicted for making perjurious state-
ments to a grand jury convened to indict his cousin on
federal drug trafficking charges. Federal law enforce-
ment officials had sought to confiscate a Bentley that
the cousin purchased with ill-gotten gains. The govern-
ment charged the defendant with directing investi-
gating officers to search a spot in his condominium’s
parking garage that he knew was unoccupied, intentionally
diverting the officers from the place where the Bentley
No. 11-1661                                          13

had actually been parked. A grand juror asked the defen-
dant, “Did you have a Bentley in your garage at Lion’s
Gate?” The defendant responded “No.” The juror con-
tinued, “Ever?” And the defendant answered, “No,
never.” At trial, the government called witnesses to
testify that the defendant orchestrated the Bentley’s
removal from the garage, retrieved money from its
trunk, and then ordered that the vehicle be abandoned.
The court denied the defendant’s motion to suppress
this evidence. On appeal, we held that “[b]ecause the
basis for the perjury charge was that [the defendant]
denied ‘having’ the car in his garage, his theft of the
car and extrication of the money from within were
direct evidence of his false testimony.” Id. at 719. The
evidence was “direct” because it established that
the defendant “’had’ a Bentley in the garage in the
first instance.” Id.
  Rojo’s statement was not direct evidence of Vargas’s
charged offense. The indictment alleged that Vargas
attempted to possess, with the intent to distribute,
more than 500 grams of cocaine “[o]n or about August 7,
2008.” The “possible cocaine trafficking” that Rojo de-
scribed had to have occurred prior to August 1, 2008,
when the DEA enlisted Rojo’s assistance in the sting.
And the government did not charge Vargas for his sus-
pected involvement in those prior transactions. Rojo’s
testimony about the agents’ suspicions did not tend to
prove the elements of the offense for which Vargas
was actually charged. The evidence, therefore, cannot
be properly categorized as direct evidence. But does its
admission require reversal? In Gorman, we explained
14                                                No. 11-1661

that we will affirm the admission of contextual, non-
direct evidence if it comports with Rule 404(b). Gorman,
613 F.3d at 719; see also Foster, 652 F.3d at 784 (“[W]e
think it is clear that the judge would have admitted
this evidence under Rule 404(b) if he had anticipated our
about-face.”); cf. United States v. Miller, 673 F.3d 688, 695
(7th Cir. 2012) (“In this case, however, the evidence of
Miller’s recent possession of the same gun was directly
relevant evidence of the charged crime, not propensity
evidence. Because the district court reached the cor-
rect result, the court’s use of the now disfavored
rationale does not matter.”). And all evidentiary errors
are subject to harmless error review. United States v.
Cooper, 591 F.3d 582, 590 (7th Cir. 2010) (“Evidentiary
errors are subject to harmless error analysis under Fed.
R. Crim. P. 52(a).”).
  It is well established that evidence may be properly
admitted under Rule 404(b) when:
     (1) the evidence is directed toward establishing a
     matter in issue other than the defendant’s pro-
     pensity to commit the crime charged; (2) the evi-
     dence shows that the other act is similar enough
     and close in time to be relevant to the matter
     in issue, (3) the evidence is sufficient to support a
     jury finding that the defendant committed the
     similar act, and (4) the probative value of the
     evidence is not substantially outweighed by the
     danger of unfair prejudice.
United States v. Boling, 648 F.3d 474, 479 (7th Cir. 2011);
United States v. Long, 86 F.3d 81, 83 (7th Cir. 1996); see also
No. 11-1661                                            15

Fed. R. Evid. 404(b)(1) (“Evidence of a crime, wrong or
other act is not admissible to prove a person’s character
in order to show . . . the person acted in accordance
with the character.”). The government argues that Rojo’s
statement did not attempt to establish Vargas’s
propensity to traffic cocaine, but we believe that to be a
natural and logical inference flowing from the state-
ment. If cocaine had previously been trafficked out of the
muffler shop, and Vargas worked at the muffler shop
(which he did), the jury might have inferred that Vargas
was one of the individuals involved in the trafficking.
And Rojo’s use of the word “possible” to describe the
suspected drug trafficking did not, on its own, inoculate
the testimony. See United States v. Prieto, 549 F.3d 513,
523 (7th Cir. 2008) (finding error in admission of state-
ments about defendants’ “ ‘possible connection’ ” to
other illegal drug activity, but holding the error harm-
less). Regarding the second and third Rule 404(b) factors,
there was scant evidence in the record to prove by a
preponderance that the “possible cocaine trafficking”
was close enough in time to be relevant, or that Vargas
had actually participated in the past trafficking. See
United States v. Burke, 425 F.3d 400, 410 (7th Cir. 2005)
(explaining that the preponderance standard is appro-
priate for determining the admissibility of prior acts
evidence). The government, for example, did not solicit
testimony from the individual who initially gave
police information about cocaine being sold out of
the muffler shop. So Rojo’s statement was not ad-
missible under Rule 404(b), and the district court
erred by admitting it.
16                                             No. 11-1661

  Errors, however, “do not merit reversal when the gov-
ernment proves that they are harmless, that is, that they
did not affect the outcome of the trial.” United States v.
Ratliff-White, 493 F.3d 812, 826 (7th Cir. 2007). The test
for harmless error is whether, in the mind of the average
juror, the prosecution’s case would have been sig-
nificantly less persuasive had the improper evidence
been excluded. United States v. Loughry, 660 F.3d 965, 975
(7th Cir. 2011). “An error is harmless if the untainted
incriminating evidence is overwhelming.” Id.
  Our review of the evidence presented at trial assures
us that the district court’s admission of Rojo’s statement
was harmless error. To convict Vargas, the government
had to prove that he “acted with the intent to possess
[an illegal substance],” and that he “engaged in conduct
which constitutes a substantial step toward commission
of the offense.” United States v. Stallworth, 656 F.3d 721,
728-29 (7th Cir. 2011). The jury heard a staggering
amount of evidence on each element. DEA agents
arrested Vargas in the Walgreens parking lot during a
planned meeting with the agency’s confidential source,
Rojo. Vargas arrived carrying a shoebox filled with
$45,000 in cash. The government played recordings of
Rojo and Vargas planning the drug deal, presented testi-
mony of Rojo and DEA agents to decipher the two
men’s coded conversations, and adduced powerful evi-
dence of Rojo’s intent, including his own words. Rojo’s
testimony that he was instructed to get close to Vargas
as part of an investigation into “possible cocaine traf-
ficking” added little, if anything, to the weight of the
evidence against Vargas. Had the statement been
No. 11-1661                                                17

properly excluded, the government’s case certainly
would not have been “significantly less persuasive.”
Accordingly, we hold that the district court’s erroneous
admission of Rojo’s statement was harmless.


  B. The District Court Properly Excluded Vargas’s Post-
     Arrest Statement that He Was “Buying a Truck”
  Vargas next argues that the district court violated the
rule of completeness by not admitting the portion of the
arrest video during which he stated that he was “buying
a truck.” Vargas maintains that the statement was “rele-
vant to the specific elements of the government’s proof
and explanatory of portions already admitted into evi-
dence.” He insists that the statement was also admissible
under the excited-utterance or state-of-mind hearsay
exceptions. The government responds that neither the
rule of completeness nor the hearsay exceptions
apply because Vargas’s statement revealed a fact that
he remembered rather than his present state of mind.
We agree with the government.
  Under the doctrine of completeness, codified at Federal
Rule of Evidence 106, “a complete statement is required
to be read or heard when it is necessary to (1) explain
the admitted portion, (2) place the admitted portion in
context, (3) avoid misleading the trier of fact, or (4) insure
a fair and impartial understanding.” United States v.
Lewis, 641 F.3d 773, 785 (7th Cir. 2011) (citation and
internal quotation marks omitted). The doctrine, how-
ever, does not require admission of statements that are
“neither explanatory of nor relevant to the admitted
18                                              No. 11-1661

passages.” Id. (citation and internal quotation marks
omitted). Moreover, a party cannot use the doctrine
of completeness to circumvent Rule 803’s exclusion of
hearsay testimony. Id. (rejecting defendant’s attempt to
cross-examine officers about the omitted portions of his
post-arrest statement). This presents a serious obstacle
for Vargas’s claim. He tries to overcome this hurdle by
characterizing his statement as an excited utterance
or a statement of his then-existing state of mind.
Rule 803(2) provides an exception to the hearsay rule
permitting the admission of excited utterances, and
Rule 803(3) offers the same for a statement of an indi-
vidual’s then-existing state of mind. Fed. R. Evid. 803(2),
(3); see also United States v. Thomas, 453 F.3d 838, 844
(7th Cir. 2006) (excited utterance); United States v.
Hartmann, 958 F.2d 774, 783 (7th Cir. 1992) (state of
mind). These exceptions, however, are of no help here.
   For a statement to be admissible under the excited-
utterance exception, the movant must demonstrate that
“(1) a startling event occurred; (2) the declarant makes
the statement while under the stress of excitement
caused by the startling event; and (3) the declarant’s
statement relates to the startling event.” United States v.
Joy, 192 F.3d 761, 766 (7th Cir. 1999). As the party seeking
to admit the statement, Vargas had the burden of estab-
lishing each element. Id. The district court concluded
that he failed to show that the statement related to the
startling event—the arrest. Instead, the court found
that the statement related to Vargas’s arrival at the
Walgreens, a “prior” event. On appeal, Vargas repeats
his argument that the arrest should qualify as a startling
No. 11-1661                                               19

event, but he fails to identify grounds for reversing the
district court’s ruling that the statement related to a
prior event. Even assuming that the arrest qualifies as
a “startling event,” we agree with the district court that
Vargas’s statement did not relate to the arrest. The evi-
dence supports the district court’s conclusion, so we
affirm its ruling on this issue. See United States v. Conley,
291 F.3d 464, 472 (7th Cir. 2002) (“Because of the special
deference we give to the trial judge’s evidentiary
rulings, we will not reverse unless the record contains
no evidence on which [the trial judge] rationally could
have based [his] decision.”).
  The defendant’s assertion that his statement falls
within the state-of-mind exception also fails. Not only is
our review of this issue for plain error because Vargas
raised it for the first time on appeal, United States v.
Jackson, 479 F.3d 485, 491 (7th Cir. 2007), but his argu-
ment is contradicted by the text of the exception and our
settled case law construing it. The exception simply
does not apply to “a statement of memory or belief to
prove the fact remembered or believed. . . .” Fed. R. Evid.
803(3); see also United States v. Harvey, 959 F.2d 1371,
1375-76 (7th Cir. 1992). Vargas stated that he “was here
buying a truck.” As the verb tense in that phrase
indicates, Vargas made the statement to prove a fact
remembered. The state of mind exception does not apply.
  Because Vargas’s statement could not have been ad-
mitted under either the excited-utterance or the state-of-
mind exception to the hearsay rules, the district court
did not err by rejecting Vargas’s request that his out of
20                                              No. 11-1661

court statement be admitted under the doctrine of com-
pleteness.


  C. The Jury Charge Adequately Accounted for
     Vargas’s Defense Theory
  Vargas’s final contention is that the district court erred
by not instructing the jury on his “mere presence” theory
of the case. He claims that the instruction was necessary
to prevent the jury from being misled by Rojo’s testi-
mony that the DEA had sent him to the muffler shop as
part of an investigation into possible cocaine trafficking,
as well as to prevent the jury from finding Vargas
guilty simply because he was at the scene of a drug deal
between Rojo and “Pepe.” The government responds
that a “mere presence” instruction was not consistent
with the evidence because Vargas was not just “standing
around while others engaged in criminal activity.” It
also stresses that Vargas’s theory of the case was
already part of the charge because the offense requires
a finding beyond reasonable doubt that the defendant
“intended to possess” cocaine and “knowingly took a
substantial step” toward possession.
  Where, as here, the defendant objects to a district court’s
refusal to give a theory of the defense instruction, our
review is de novo. United States v. Baker, 438 F.3d 749,
758 (7th Cir. 2006). “To be entitled to a particular theory
of the case instruction, the defendant must show the
following: 1) the instruction is a correct statement of the
law, 2) the evidence in the case supports the theory of
defense, 3) that theory is not already part of the charge,
No. 11-1661                                             21

and 4) a failure to provide the instruction would deny a
fair trial.” United States v. James, 464 F.3d 699, 707 (7th
Cir. 2006).
   Our pattern jury instruction for the “mere presence”
defense states that “a defendant’s presence at the scene
of a crime and knowledge that a crime is being com-
mitted is not alone sufficient to establish the defendant’s
guilt.” Pattern Criminal Federal Jury Instructions for
the Seventh Circuit 5.11 (1998). Vargas sought this in-
struction in the district court, arguing that he was at the
Walgreens to buy a truck, not cocaine. It is firmly estab-
lished that a defendant requesting this instruction “must
identify evidence consistent with a theory of mere pres-
ence.” United States v. Glover, 479 F.3d 511, 519 (7th
Cir. 2007). Such evidence would typically support the
possibility that the defendant was “standing around
while others engaged in criminal activity.” Id.
  Vargas’s appeal of this issue is controlled by James. In
that case, we held that 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. James, 464 F.3d at 707-08. The
defendant there, who had been charged with possessing
cocaine, requested a mere presence instruction because
he lived with a cocaine dealer, but claimed to have person-
ally sold only marijuana. Affirming the conviction, we
explained that the “mere presence” instruction is “de-
signed to inform the jury that guilt should not follow
from . . . presence at the scene of a crime. Rather, guilt
22                                              No. 11-1661

may be found only when the defendant knowingly par-
ticipated in the criminal activity.” Id. (citation omitted).
Because the possession offense James was charged with
required the jury to find that the defendant acted “know-
ingly,” the instructions “adequately apprised the jury” of
the elements and the defendant’s theory of the case. So
the district court did not err by refusing to give the
mere presence instruction. Id.
  Vargas was indicted for attempting to possess, with the
intent to distribute, 500 grams or more of cocaine. The
evidence in the record does not support Vargas’s claim
that he was merely present at a crime scene. And the
jury charge required the government to prove beyond
a reasonable doubt that the defendant “intended” to
possess and transfer what he believed to be a controlled
substance, and that he “knowingly took a substantial
step toward” that aim. Critically, the district court in-
structed the jury that a “substantial step” requires more
than “mere planning or preparation.” So for the jury to
convict Vargas, it had to find beyond a reasonable doubt
that he knowingly committed some act beyond mere
planning; it could not convict him for simply being
present at the scene of someone else’s crime. This
court presumes that the jury followed the district court’s
instructions, United States v. Zahursky, 580 F.3d 515,
525-26 (7th Cir. 2009), and Vargas has not shown other-
wise. We therefore find no error in the district court’s
denial of Vargas’s request for a “mere presence” instruc-
tion.
No. 11-1661                                             23

                   III. CONCLUSION
   For the above-stated reasons, the defendant’s conviction
is A FFIRMED.




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