In the
United States Court of Appeals
For the Seventh Circuit
No. 15‐1196
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
JUAN ADAME,
Defendant‐Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 CR 192 — Harry D. Leinenweber, Judge.
ARGUED APRIL 5, 2016 — DECIDED JUNE 28, 2016
Before WOOD, Chief Judge, and BAUER and WILLIAMS, Circuit
Judges.
BAUER, Circuit Judge. A jury convicted defendant‐appellant,
Juan Adame, of one count of arson affecting interstate com‐
merce in violation of 18 U.S.C. § 844(i). Adame appeals on two
grounds: that there was insufficient evidence to uphold his
conviction and that the government introduced inadmissible
evidence against him during trial. We find against both
arguments and affirm Adame’s conviction.
2 No. 15‐1196
I. BACKGROUND
A. The Fire
Around 4:30 a.m. on January 14, 2012, the Chicago Fire
Department responded to a fire reported at a two‐story
building located at 4246 West 63rd Street. The building’s first
floor was vacant commercial space and the second floor was
split into two apartments. One apartment was leased by Blanca
Ortiz, and the other by Jimmy Maca. When the Fire Depart‐
ment personnel arrived, they saw smoke coming from the
second floor of the building. The crew entered and discovered
a fire in Ortiz’s apartment. No one was present in the apart‐
ment. The crew extinguished the fire and searched the other
apartment, where they found Maca dead from smoke inhala‐
tion.
On March 21, 2012, the Chicago Police Department,
working jointly with the Bureau of Alcohol, Tobacco, Firearms
and Explosives (“ATF”), arrested Adame, Ortiz’s ex‐boyfriend.
A grand jury indicted Adame on August 15, 2012, for one
count of maliciously causing damage by fire to a building used
in interstate commerce in violation of 18 U.S.C. § 844(i). The
case proceeded to a jury trial, which began on October 7, 2013,
and concluded on October 11, 2013.
B. Evidence Presented at Trial
At trial, Ortiz testified that she and Adame began dating in
August 2011, but broke up on January 13, 2012, following a
fight. Ortiz described how, during their relationship, Adame
frequently stayed at her apartment and kept his clothes and
belongings there, even though she had never given him
No. 15‐1196 3
permission to do so. He also broke into her apartment on two
occasions, and had driven her Ford Mustang without her
permission. In addition, he had taken several video recordings
on his cell phone of Ortiz without her knowledge. She stated
that he was “very controlling” of her, which was a source of
several fights during their relationship.
Ortiz testified that on the evening of January 13, 2012, she
and Adame were at her home in Indiana, which she owned in
addition to the Chicago apartment. At around 8:30 p.m., she
and Adame got into a heated verbal fight that culminated in
Ortiz leaving the house and Adame pulling the door handle off
the car as she drove away. After she left, Adame took several
bags full of clothes and other possessions from Ortiz’s Indiana
house and placed them in garbage bags. He then took Ortiz’s
2007 Ford Mustang and left with the garbage bags. He ex‐
changed text messages with Ortiz throughout the evening.
Ortiz accused Adame of stealing her possessions and informed
him that she did not want “anything at all to do with you.”
Maria Navarette testified that she had previously dated
Adame, and the two had remained friends. She said that on the
evening of January 13, 2012, after Adame had left Ortiz’s
Indiana residence, he called and texted Navarette to ask her to
go dancing, to which she agreed. He arrived at her house in
Chicago driving Ortiz’s Mustang. Navarette noticed the
backseat of the Mustang contained several full garbage bags.
Adame told Navarette that they should drive a different car
because something was wrong with the Mustang. Navarette
called a friend and asked to borrow her car. The friend agreed,
so Adame and Navarette drove to Navarette’s friend’s house
4 No. 15‐1196
and borrowed the car. Adame grabbed his backpack from the
Mustang and brought it with him.
Navarette testified that once they got into her friend’s car,
Adame told her to stop for gas. Navarette thought the car had
enough gas, but Adame insisted they stop for gas anyway. She
drove to a gas station and Adame told Navarette to go inside
and pay for $10 worth of gas. She did so, while Adame got out
of the car and went to the gas pump. She stated that after she
paid the cashier, she went back to the car and saw numbers
going up on the machine, but did not see the gas nozzle
inserted into the car’s gas tank. Once the pump reached $10,
Adame returned the nozzle and washed the car’s windshield
with his bare hands (despite the fact that it was winter), and
dried his hands with the gas station towel. He then got in the
car and put on his gloves.
Navarette testified that when they left the gas station,
Adame told her he wanted to “pick up some things of his”
before going dancing. He directed her down different streets,
and eventually into an alley. He then had her park in the side
parking lot of 4258 West 63rd Street. The parking lot was four
buildings down from Ortiz’s apartment.
Adame told Navarette to wait in the car while he went
inside to change clothes. At that time, he was wearing a dark
hoodie, dark pants, gloves, and sunglasses, even though it was
“pitch black” at the time. He left with his backpack and walked
into the alley towards Ortiz’s apartment. Navarette waited in
the car for two hours, and eventually fell asleep. When she
awoke, she texted Adame asking where he was. He came back
to the car 15 to 20 minutes later, still wearing the same outfit,
No. 15‐1196 5
but he had two full garbage bags with him. He told Navarette
to “start driving” and did not answer her when she asked
where he had been. They decided it was too late for dancing,
and so Adame had Navarette drive him home.
At trial, the government presented the items recovered
from the garbage bags, which Ortiz identified as her posses‐
sions from both her home in Indiana and her apartment in
Chicago.
In addition, the government presented testimony from the
law enforcement personnel who investigated the arson. John
Gamboa, an ATF Certified Fire Inspector, testified that he
investigated Ortiz’s apartment on January 14, 2012. He
discovered that the fire originated at three different points; one
in the living room, and two separate areas in the bedroom.
Kevin Smith, an Arson Investigator for the Illinois State Fire
Marshall, testified that he inspected the apartment on
January 14, 2012, and found that an “accelerant” was poured
in three areas; one in the living room and two in the bedroom.
The Illinois State Police Forensic Science Center then tested the
samples from those three areas. Several samples came back
“inconclusive” (meaning there may have been an ignitable
liquid present), but one sample was determined within a
“reasonable degree of scientific certainty” to contain gasoline.
The government also introduced statements that Adame
made during his interrogations by the ATF and Chicago Police.
ATF Agent Anthony Zito interviewed Adame on January 31,
2012. Adame initially told Agent Zito that on the evening of the
fire he called his uncle after he left Ortiz’s house, and his uncle
picked him up and brought him back to the area near the
6 No. 15‐1196
intersection of North Avenue and Keeler Avenue in Chicago,
where the uncle resided. Following the interview, Agent Zito
discovered that Adame’s uncle did not live at that location. He
called the uncle’s phone number that Adame provided, but the
phone was disconnected. Finally, he reviewed Adame’s cell
phone records, which indicated that Adame did not call his
uncle on the evening of the fire.
Sergeant Jose Garcia of the Chicago Police Department’s
Arson Section also interviewed Adame. Adame initially told
Sergeant Garcia that he was at his uncle’s residence on the
evening of the fire, but he recanted this story when confronted
with the evidence to the contrary. Adame then admitted he
was at Navarette’s residence that evening. Adame also claimed
that he drove to Navarette’s residence in a truck, but later
admitted he drove a Mustang. He admitted directing
Navarette to the gas station and that he pumped the gas. When
Sergeant Garcia asked Adame, “you really didn’t pump gas
into the car, did you?” Adame looked down and shook his
head from side to side. When Sergeant Garcia asked him why
he directed Navarette to the gas station, Adame replied, “I
can’t tell you why.” When Sergeant Garcia asked him why he
went into Ortiz’s apartment that night, Adame responded, “I
can’t tell you why, I can’t tell you why.” When Sergeant Garcia
asked him what items he took from Ortiz’s apartment, Adame
initially denied taking anything, but after Sergeant Garcia
confronted him with the evidence, Adame said, “I can’t tell
you what I did.” Finally, Sergeant Garcia asked whether
Adame “set the fire to try and hurt Jimmy [Maca],” to which
Adame stated, “I didn’t mean to hurt Jimmy.”
No. 15‐1196 7
The government called Special Agent Joseph Raschke of the
Federal Bureau of Investigation (“FBI”) to testify regarding
historical cell site analysis. Agent Raschke described how cell
phones interact with cell towers. Basically, whenever a cell
phone makes a call, it sends the information to a cell tower,
which transmits the information to the phone being called.
Agent Raschke created a map of all the eligible cell towers in
the Chicago area. He testified that cell phones generally send
information to whichever cell tower is closest, but not always
because different factors can affect the signal. By using
historical cell site analysis, he could determine “the approxi‐
mate area where a phone would have had to have been when
it placed or received the call in the records.”
Agent Raschke then testified regarding his analysis of
Adame’s and Navarette’s cell phone data from the evening of
January 13, 2012, through the morning of January 14, 2012. He
cautioned that the records are not precise enough to state
whether a phone “was absolutely at a specific address,” but
that he could determine whether “it was in [a general] area.”
Agent Raschke testified that the cell phone data was “consis‐
tent with” Adame’s phone traveling from Indiana to Chicago
on January 14, 2012, from 12:21 a.m. to 12:48 a.m. He stated
that Adame’s cell phone records were also “consistent with”
Adame being at or near Navarette’s residence on January 14,
2012, from 1:08 a.m. to 1:15 a.m.; and Navarette’s friend’s
residence around 2:05 a.m.
Agent Raschke also testified that he has an FBI software
package that allows him to determine what cell tower a cell
8 No. 15‐1196
phone is currently using.1 Agent Raschke had gone to the crime
scene with a cell phone and used the software to determine
what cell tower the cell phone communicated with while he
was in the area. He tested different locations near the crime
scene, such as the alley behind the building, and inside Ortiz’s
apartment. Based on the cell towers that Agent Raschke’s
cell phone communicated with while at those locations,
he concluded that Adame’s cell phone records were “consis‐
tent with” Adame being in or near Ortiz’s apartment on the
evening of the fire because the cell tower that Agent Raschke’s
cell phone utilized when he was inside the apartment matched
the cell tower that Adame’s cell phone utilized for the calls that
he made on January 14, 2012, between 2:47 a.m. and 3:12 a.m.
Further, Agent Raschke testified that Adame’s cell phone data
did not indicate that Adame’s cell phone utilized any of the cell
towers near the intersection of North Avenue and Keeler
Avenue at any point during the evening of the fire. While
Agent Raschke stated that he could not “say that a phone was
at a specific address,” he could confidently say that a phone
“wasn’t at this specific address.”
1
As to any concern with whether Agent Raschke’s testimony regarding
the software established a proper foundation of reliability: Agent Raschke
never testified who developed the software, what company furnished the
software (if the software was even proprietary), and whether the software
operated the same way for every model and type of cell phone. Agent
Raschke also testified that he did not think any law enforcement group,
other than the FBI, utilized the software. But Adame never objected to the
software’s reliability, so the district court did not inquire further. Neverthe‐
less, any deficiencies in this evidence are at most harmless error.
No. 15‐1196 9
Agent Raschke testified that Navarette’s cell phone records
were “consistent with” Navarette being at or near her resi‐
dence and her friend’s residence during the evening of the fire
and that the data was “consistent with” her being at or near
the parking spot near Ortiz’s apartment on January 14, 2012,
from 3:02 a.m. to 3:16 a.m. Agent Raschke concluded that
Navarette’s cell phone records were “inconsistent” with
Navarette being inside Ortiz’s apartment at that time. He also
found that Adame’s cell phone records were “inconsistent”
with Adame being in the parking spot with Navarette during
that time frame. This was because the cell towers that Agent
Raschke’s phone communicated with when he examined the
software inside the apartment were different from the cell
towers his phone communicated with when he was outside the
apartment at the alley parking spot. The cell phone records
showed that Navarette’s phone connected with the towers that
Agent Raschke’s phone connected with when he was in the
parking spot; and Adame’s phone connected with the towers
that Agent Raschke’s phone connected with when he was in
the apartment.
C. Jury Deliberations
After closing arguments, the district court went through
the exhibits that had been entered into evidence and allowed
the parties to object to any of them going back into jury
deliberations. Adame objected to several items, including a
video from Adame’s cell phone. The video was recorded by
Adame and shows Ortiz lying in bed while Adame films her
and remarks that the sun on her skin made it look red, like
she was “on fire.” Adame did not object to the government
introducing the video into evidence during trial, but argued
10 No. 15‐1196
that it was improper to allow it to go back to the jury now
because they could “view it over and over again to an incorrect
result.” Specifically, he argued the word “fire” was prejudicial
because the video was taken almost three weeks before the
arson and he believed the word “fire” clearly had other
meanings in this context. The district court allowed the video
to go back into the jury room along with most of the other
exhibits that were admitted during trial.
The jury returned a guilty verdict against Adame on
October 11, 2013. On January 8, 2015, the district court sen‐
tenced Adame to 40 years’ imprisonment.
II. DISCUSSION
Adame appeals on two major grounds. First, he claims that
there was insufficient evidence to convict him under 18 U.S.C.
§ 844(i). Second, he argues that evidence was admitted impro‐
perly, which substantially prejudiced him and prevented a fair
trial. We address each separately.
A. Sufficiency of the Evidence
We will only overturn the jury’s verdict if, in viewing the
evidence in the light most favorable to the government, “the
record is devoid of evidence from which a reasonable jury
could find guilt beyond a reasonable doubt.” United States v.
Stevenson, 680 F.3d 854, 855–56 (7th Cir. 2012) (citation omit‐
ted). Adame raises two issues to support his sufficiency of the
evidence argument. First, Adame claims that the government
failed to prove that Adame poured gasoline in Ortiz’s apart‐
ment and then ignited the fire. Although Navarette testified
that Adame was at the gas station and pumped the gas, Adame
No. 15‐1196 11
argues that since she did not see Adame pump gas into a
container or smell gasoline, there was insufficient evidence
connecting him to the fire.
Arson can be proven by circumstantial evidence. E.g.,
United States v. Thompson, 523 F.3d 806, 812 (7th Cir. 2008)
(citation omitted). As detailed above, there is a considerable
amount of circumstantial evidence indicating that Adame
caused the fire. The jury could have reasonably inferred that
Adame pumped the gasoline into a container, since Navarette
testified that she did not see the gas nozzle while Adame was
pumping gasoline. Further, the jury could have reasonably
inferred that Adame put the container in his backpack, which
he carried with him as he left the car after he had Navarette
park near Ortiz’s apartment. Finally, the jury could have
reasonably inferred that Adame poured the gasoline in the area
inside Ortiz’s apartment where gasoline was later detected,
and that these events occurred during the two hour time
period in which Navarette waited for Adame, before he
returned with garbage bags full of items from Ortiz’s apart‐
ment. So, there was sufficient circumstantial evidence for the
jury to find beyond a reasonable doubt that Adame started the
fire.
Second, Adame claims that there was insufficient evidence
to convict him because the government did not show that the
building at issue substantially affected interstate commerce. 18
U.S.C. § 844(i) states that:
Whoever maliciously damages or destroys, or
attempts to damage or destroy, by means of fire
or an explosive, any building … used in inter‐
12 No. 15‐1196
state or foreign commerce or in any activity
affecting interstate or foreign commerce shall be
imprisoned.
If the government presents evidence that the building at
issue is used as rental property, then the government satisfies
its evidentiary burden for the interstate commerce element
under § 844(i). United States v. Soy, 413 F.3d 594, 602–03 (7th
Cir. 2005) (discussing Russell v. United States, 471 U.S. 858, 862
(1985) and its progeny); see also Taylor v. United States, _ S. Ct.
_, 2016 WL 3369420, at *6 (June 20, 2016) (holding that to satisfy
the commerce element under the Hobbs Act for the robbery or
attempted robbery of a drug dealer, the government did not
have to show that the drugs at issue traveled interstate, but
rather “it is enough that a defendant knowingly stole or
attempted to steal drugs or drug proceeds, for, as a matter of
law, the market for illegal drugs is ‘commerce over which the
United States has jurisdiction.’”).
At trial, the owner of the building testified that the first
floor was used for office space that was available for lease at
the time of the fire. He also stated that the second floor was
split into two residential apartments, both of which were
leased at the time of the fire. Further, the landlord said he had
never lived in the building. The government met its eviden‐
tiary burden to establish the interstate commerce element
under § 844(i).
B. Improperly Admitted Evidence
Adame also argues that several pieces of evidence were
improperly admitted at trial. Specifically: (1) Agent Raschke’s
expert testimony regarding historical cell site analysis; (2) an
No. 15‐1196 13
incriminating statement Adame made during interrogation
that he “didn’t mean to hurt Jimmy”; and (3) the cell phone
video of Adame remarking that Ortiz’s skin looked like it was
“on fire” that went back to the jury room during deliberations.
We address each separately.
1. Expert Testimony Regarding Historical Cell Site
Analysis
Adame challenges the admissibility of Agent Raschke’s
historical cell site analysis under Federal Rule of Evidence 702
and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
The government argues that Adame’s Daubert challenge was
waived because Adame did not file a motion to suppress prior
to trial.
In United States v. Acox, we stated that parties must file a
pretrial motion to exclude evidence if there is an applicable
constitutional or statutory rule “outside the Rules of Evidence”
that justifies the exclusion; for example, the Miranda doctrine.
595 F.3d 729, 733 (7th Cir. 2010) (emphasis in original) (cita‐
tions omitted). But parties may move to exclude evidence
during trial if the Federal Rules of Evidence justify the exclu‐
sion. Id. (citing Fed. R. Evid. 103(a)(1)). Daubert objections are
synonymous with objections based on Federal Rule of Evi‐
dence 702. Therefore, Adame did not have to file a pretrial
motion to suppress, and could have raised the issue during
trial. Adame timely raised a Daubert objection, and we turn to
the merits of his argument.
We review de novo whether a district court properly applied
the Daubert analysis. E.g., Lapsley v. Xtek, Inc., 689 F.3d 802, 809
(7th Cir. 2012) (citations omitted). If the district court properly
14 No. 15‐1196
applied the Daubert analysis, then “we will not disturb the
district court’s findings unless they are manifestly erroneous.”
Id. (citation omitted). But, if the district court failed to conduct
a Daubert analysis, then we review de novo whether the expert’s
testimony was admissible under Federal Rule of Evidence 702.
Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 760 (7th
Cir. 2010). In this case, the district court did not conduct a
Daubert analysis.2 So, we examine de novo whether Agent
Raschke’s testimony regarding historical cell site analysis was
admissible.
We recently examined the admissibility of historical cell site
analysis under Federal Rule of Evidence 702. See United States
v. Hill, 818 F.3d 289, 295 (7th Cir. 2016). In Hill, we noted that
“historical cell‐site analysis can show with sufficient reliability
that a phone was in a general area, especially in a well‐popu‐
lated one. It shows the cell sites with which the person’s cell
phone connected, and the science is well understood.” Id. at
298. But we noted that the expert witness should include a
“disclaimer” regarding the accuracy of the analysis, and that
the witness should not “overpromise[] on the technique’s
2
While the district court did acknowledge Adame’s Daubert objection, it
overruled the objection on the ground that since other federal courts have
allowed testimony on historical cell site analysis, “that’s the end of it.” This
is an insufficient analysis to warrant any deference. See Naeem v. McKesson
Drug Co., 444 F.3d 593, 608 (7th Cir. 2006) (“the district court’s one sentence,
stating that Prof. Anthony has sufficient expertise, is not enough to show
that the district court applied the Daubert standard”); see also Chapman v.
Maytag Corp., 297 F.3d 682, 687–88 (7th Cir. 2002) (reversing district court’s
admission of expert testimony when the court “conducted virtually no
Daubert analysis”).
No. 15‐1196 15
precision—or fail[] to account adequately for its potential
flaws.” Id. at 298‐99.
In this case, Agent Raschke acknowledged that he was
unable to tell from his historical cell site analysis whether
Adame was at a “specific address” at any point during the
evening of the fire. Rather, his testimony was that the data was
“consistent with” Adame being present at different locations
from January 13, 2012, to January 14, 2012. This testimony
adheres to our opinion in Hill regarding the proper use of
historical cell site analysis in trials. Further, Agent Raschke’s
specificity in his testimony that the data was consistent with
Adame being present in Ortiz’s apartment while Navarette
was in the parking spot (and inconsistent with Adame being in
the parking spot and Navarette being in the apartment) was
adequately supported by his observations that cell phones at
those two different locations utilized different cell towers,
despite their close proximity.
However, we need not engage in a Daubert analysis to
resolve this case. Even assuming Agent Raschke’s historical
cell site analysis testimony was inadmissible, any error was
harmless. If an error occurred in a jury trial, the government’s
burden is to persuade us that “the jury would have convicted
even absent the error.” United States v. Ortiz, 474 F.3d 976, 982
(7th Cir. 2007). We are persuaded that the jury would have still
convicted Adame absent the historical cell site analysis
testimony because Agent Raschke’s testimony was corrobo‐
rated by other witnesses and evidence presented at trial. See
Naeem, 444 F.3d at 609 (finding improperly admitted expert
testimony did not violate appellant’s “substantial rights”
16 No. 15‐1196
because all of the expert’s objectionable statements were
corroborated by other witnesses).
The crux of Agent Raschke’s testimony was that on the
night of the fire, Adame drove from Indiana to Chicago; was
in the general area of Navarette’s residence; was in the general
area of Navarette’s friend’s residence; was in the general area
of Ortiz’s apartment; and was not in the general area of the
intersection of North Avenue and Keeler Avenue. He also
testified that Navarette’s cell phone data indicated that she
was in the general area of her residence, her friend’s residence,
and the parking spot near Ortiz’s apartment.
All of Agent Raschke’s testimony was cumulative; it was
corroborated by other witnesses at trial. Ortiz testified that
Adame was at her residence in Indiana earlier that evening,
and Navarette testified that Adame picked her up in Chicago
later that evening. These statements corroborate Agent
Raschke’s testimony that Adame drove from Indiana to
Chicago on the night of the fire. Navarette also testified that
Adame came to her residence and that they went to her
friend’s house to pick up a car. Further, Navarette testified that
she parked the car in an area a few buildings down from
Ortiz’s apartment, and that Adame left the vehicle and started
walking towards the alley in the direction of Ortiz’s apartment.
Adame returned with garbage bags full of items, which Ortiz
identified during trial as being from her home in Indiana and
her apartment in Chicago. This corroborates Agent Raschke’s
testimony that Adame’s cell phone data was consistent with
him being at Navarette’s house, her friend’s house, and Ortiz’s
apartment on the evening of the fire. Finally, the government
introduced Adame’s statement to investigators in which he
No. 15‐1196 17
acknowledged that he was not at the intersection of North
Avenue and Keeler Avenue on the evening of the fire.
Therefore, since all of Agent Raschke’s testimony regarding
Adame’s locations throughout the evening was cumulative,
any possible error in admitting his historical cell site analysis
was harmless.
2. Incriminating Statements
Adame also challenges the government’s admission of his
statement, “I didn’t mean to hurt Jimmy.” He claims that it was
elicited in violation of Miranda v. Arizona, 384 U.S. 436 (1966).
But Adame did not file a pretrial motion to suppress this
statement, nor did he file a motion for relief in the district
court. If a defendant fails to file a pretrial motion to suppress,
then he or she must file a motion for relief in the district court
showing “good cause” for why the district court should excuse
the timeliness issue. See United States v. Daniels, 803 F.3d 335,
351–52 (7th Cir. 2015); see also Fed. R. Crim. P. 12(c)(3). If the
defendant also fails to file a motion for relief showing good
cause before the district court, then we apply a hyper‐deferen‐
tial standard of review in which we examine “whether, if a
motion for relief had been made and denied, the district court
would have abused its discretion in concluding that the defense
lacked good cause.” Acox, 595 F.3d at 732 (emphasis added).
Adame argues if he made a motion for relief and the district
court denied it for lack of good cause, then the district court
would have abused its discretion because the phrase presented
at trial (“I didn’t mean to hurt Jimmy”) materially differed
from the statements disclosed to Adame prior to trial (“[I] had
no problems with Jimmy” and “[I] was not trying to hurt
18 No. 15‐1196
Jimmy”). Thus, he essentially claims he was blind‐sided by
Sergeant Garcia’s altered testimony during trial, which
prevented him from filing a pretrial motion to suppress. In
addition, he argues the phrase presented at trial is materially
different from the phrases previously disclosed to him because
the phrase “I didn’t mean to hurt Jimmy” contains an implicit
acknowledgment of causing the fire and not intending the
consequences that ultimately resulted.
The fatal flaw in Adame’s argument is that the statements
he claims were previously disclosed to him before trial are not
contained in the record. Adame also did not file a motion to
modify the record pursuant to Federal Rule of Appellate
Procedure 10(e). “A court of appeals is limited to the record
built in the district court, so arguments that depend on extra‐
record information have no prospect of success.” Acox, 595
F.3d at 731. Absent a complete record containing the previ‐
ously disclosed statements that Adame relies on, we cannot
consider this argument.
Further, Adame’s argument fails on its merits. If there is
any meaningful difference between the phrases “I didn’t mean
to hurt Jimmy” and “I was not trying to hurt Jimmy,” it is not
clear to us. So we cannot say that the district court, had it failed
to grasp the difference, would have abused its discretion.
3. Cell Phone Video
Adame’s final argument is that the district court erred in
allowing the cell phone video to go back to the jury room.
Adame claims that the video was unfairly prejudicial under
Federal Rule of Evidence 403 because his statement that the
No. 15‐1196 19
sunlight on Ortiz’s skin made it look like it was “on fire” could
have been misinterpreted by the jury.
We review a district court’s decision to allow exhibits into
the jury room during deliberations for a “clear abuse of
discretion.” United States v. Loughry, 738 F.3d 166, 169–70 (7th
Cir. 2013) (citation omitted). Further, “[i]f a party argues that
properly admitted exhibits had some sort of improper influ‐
ence on the jury, reversal also requires a showing of prejudice.”
Id. (citation omitted). Generally, the district court is well within
its discretion to allow properly admitted evidence to go back
into jury deliberations; but it should prohibit exhibits that
“neither party has relied on, that have no relevance to any of
the issues central to the case, or that are cumulative, prejudi‐
cial, confusing, or misleading.” Deicher v. City of Evansville,
Wis., 545 F.3d 537, 542 (7th Cir. 2008) (citing Federal Rule of
Evidence 403 and United States v. Gross, 451 F.2d 1355, 1359 (7th
Cir. 1971)).
Both parties agree that the cell phone video was properly
admitted into evidence and that Adame did not object to its
introduction. Thus, it is normally proper for a district court to
allow the exhibit to go into the jury deliberation room.
But Adame raised a proper objection under Federal Rule of
Evidence 403 that the video’s unfair prejudice substantially
outweighed its probative value. He claims that any reference
to “fire” by an arson defendant is inherently prejudicial. We
disagree. It would be unnecessarily stringent to hold that the
prosecution can never introduce evidence of an arson defen‐
dant saying the word “fire” without unfairly prejudicing the
defendant and requiring a new trial. Adame also speculates
20 No. 15‐1196
that the jury could have replayed the video over and over
again until it was given too much credence. That risk alone is
not enough to require us to reverse the verdict; there was an
overwhelming amount of other evidence introduced against
Adame in this case. Thus, any error was harmless and did not
prejudice Adame.
III. CONCLUSION
Therefore, for the foregoing reasons, Adame’s conviction is
AFFIRMED.