In the

United States Court of Appeals

For the Seventh Circuit

No. 11-1661

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CRISTOBAL VARGAS,

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.

ARGUED APRIL 5, 2012—DECIDED AUGUST 10, 2012

Before ROVNER, WOOD, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. A jury convicted Cristobal

Vargas of attempting to possess, with an intent to distribute, 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 statement should not have been admitted, but the court’s

error was harmless in light of the overwhelming evidence 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 admitted 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 adequately 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 Chicago. Chicago Police Officer Terrance Looney, a task

force officer detailed to the DEA, spearheaded an investigation 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 purchase cocaine. As part of this plan, Rojo would appear to

be engaged in a telephonic drug deal with an individual named “Pepe,” who was actually an undercover
4 No. 11-1661

officer. Rojo and Pepe would discuss the deal via a twoway, 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 conversation 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 containing $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 attempting 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 instructed 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 disagreed, 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 recordings and transcripts (translated into English) of ten

conversations between Rojo and Vargas. The conversations occurred at various times between August 4, 2008

and August 7, 2008. On the calls, Rojo and Vargas discussed “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 interpretation of his recorded conversations as referencing cocaine 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 sometimes 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 controlled substance and intended to transfer it to

another person. . . .

Number 2. The defendant believed that the substance was some kind of controlled substance. . . .

Number 3. The defendant knowingly took a substantial step toward possessing a controlled substance, 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 defendant’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 admitting Rojo’s statement regarding “possible cocaine trafficking.” 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 statement constituted unfairly prejudicial propensity evidence 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 intertwined” 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 intertwined 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 involves, 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 “contextual”—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 statement “established the only obvious point that Rojo

was assisting an investigation of possible cocaine trafficking” and it “provided foundation for the jury to

understand Rojo’s subsequent interactions with [Vargas].”

Gorman does not stand for the proposition that “foundation” 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 evidence 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 statements to a grand jury convened to indict his cousin on

federal drug trafficking charges. Federal law enforcement officials had sought to confiscate a Bentley that

the cousin purchased with ill-gotten gains. The government charged the defendant with directing investigating 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 defendant, “Did you have a Bentley in your garage at Lion’s

Gate?” The defendant responded “No.” The juror continued, “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 described 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 suspected 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, nondirect 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 correct 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 propensity to commit the crime charged; (2) the evidence 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 statement. 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 statements about defendants’ “ ‘possible connection’ ” to

other illegal drug activity, but holding the error harmless). 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 appropriate 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 admissible under Rule 404(b), and the district court

erred by admitting it.
16 No. 11-1661

Errors, however, “do not merit reversal when the government 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 significantly 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 testimony of Rojo and DEA agents to decipher the two

men’s coded conversations, and adduced powerful evidence 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 trafficking” 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 PostArrest 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 “relevant to the specific elements of the government’s proof

and explanatory of portions already admitted into evidence.” 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, however, 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 individual’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 excitedutterance 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 establishing 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 evidence 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 argument 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 admitted under either the excited-utterance or the state-ofmind 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 completeness.

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 testimony 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 committed 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 instruction in the district court, arguing that he was at the

Walgreens to buy a truck, not cocaine. It is firmly established that a defendant requesting this instruction “must

identify evidence consistent with a theory of mere presence.” 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 personally sold only marijuana. Affirming the conviction, we

explained that the “mere presence” instruction is “designed 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 participated in the criminal activity.” Id. (citation omitted).

Because the possession offense James was charged with

required the jury to find that the defendant acted “knowingly,” 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 instructed 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 otherwise. We therefore find no error in the district court’s

denial of Vargas’s request for a “mere presence” instruction.
No. 11-1661 23

III. CONCLUSION

For the above-stated reasons, the defendant’s conviction

is AFFIRMED.

8-10-12