concurring.
I write separately because I believe the district court erred in excluding Viste-Ross’s testimony as inadmissable hearsay.
Naiden was charged with the offenses of using the Internet/mail in attempt to entice a child for unlawful sexual activity and attempting to induce a child to travel for unlawful sexual activity. The alleged criminal activity commenced on February 13, 2003, when Naiden began an online relationship with Stephanie, and continued until March 7, 2003, when he went to the Greyhound station to meet her. To convict Naiden of the offenses, the govern*724ment had the burden of proving Naiden believed Stephanie was under 18 years of age. Thus, evidence of Naiden’s belief of Stephanie’s age during the time he allegedly engaged in the charged criminal conduct was relevant. At trial, Naiden sought to introduce his friend Viste-Ross’s testimony that during a discussion on February 14, 2003 Naiden told Viste-Ross, “I am corresponding with someone online who says they are fourteen but I do not believe it.” The government objected to the admission of the testimony on the grounds of hearsay. Defense counsel argued Naiden’s statement fell under an exception to the hearsay rule as a statement demonstrating Naiden’s state of mind. The district court excluded Viste-Ross’s testimony on the grounds it was inadmissable hearsay, without further explanation.
Hearsay “is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed.R.Evid. 801. As noted by the majority, Naiden’s statement to Viste-Ross constitutes hearsay because it was a statement Naiden made while out of court and introduced to prove the truth of the matter asserted — that Naiden did not believe Stephanie was 14 years old. Rule 802 provides hearsay is inadmissable unless it falls under one of the Rule’s exceptions. Rule 803(3) excludes from the rule prohibiting hearsay: “A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed .... ” Fed.R.Evid. 803(3). Naiden’s statement “I do not believe it” fits under Rule 803(3) because it is a statement of Naiden’s then existing state of mind.
The language of Rule 803(3) requires the statement to indicate the declarant’s present state of mind rather than a prior state of mind. As the majority notes, a key circumstantial guarantee of trustworthiness with respect to Rule 803(3) is the requirement that the statement express the declarant’s then existing state of mind. The majority asserts Naiden’s statement to Viste-Ross was a declaration of his “former state of mind,” i.e. his state of mind on February 13 during his online conversation with Stephanie. I disagree. Naiden’s use of present tense in stating “I do not believe it” shows the statement manifested Naiden’s belief at the time of his discussion with Viste-Ross. See United States v. Partyka, 561 F.2d 118, 125 (8th Cir.1977) (holding district court erred in excluding defendant’s spouse’s testimony about statements defendant made to a third party because statements were not declarations of past state of mind but manifestations of present state of mind as immediate reactions to third party’s proposal during discussion). Moreover, Naiden’s state of mind on February 14 is relevant because February 14 is within the period of time during which Naiden allegedly engaged in the conduct forming the basis of the charged offenses, as noted in the indictment. Compare United States v. Udey, 748 F.2d 1231, 1243 (8th Cir.1984) (affirming district court’s exclusion of exculpatory statements defendant made on June 5, which was after his arrest and two days after criminal conduct, because defendant’s present state of mind on June 5, the date he made the statements, was not relevant to his state of mind on June 3, the date of the offense in the indictment).
The majority contends the district court properly excluded the statement because Naiden had an opportunity to reflect and fabricate his statement. The absence of an opportunity to reflect is not a requirement included in the text of Rule 803(3), *725nor have our cases to date governing the state of mind exception under Rule 803(3) imposed such a requirement. See Udey, 748 F.2d at 1243; Partyka, 561 F.2d at 125. According to the treatises, “[t]he federal courts are in some conflict over the issue of whether the court in admitting a statement under Rule 803(3) is authorized to exclude statements based on questionable motivation of the declarant or circumstances of making of the statement.” McCormick on Evidence § 274 n. 8; see also Christopher B. Mueller & Laird C. Kirkpatrick, 4 Federal Evidence § 438. In my opinion, if a hearsay statement meets the requirements of Rule 803(3), and is not excluded under another Rule, then the jury should consider evidence of the self-serving nature of the statement in determining how much weight to give it. As stated in one treatise:
The very fact that the exception is silent about candor suggests that courts should be at least hesitant to exclude statements that otherwise fit, on the basis of suspicion on this score. The scheme of categorical exceptions reinforces this point (satisfying express requirements is enough) — only a few, such as the catchall and the ones for business and public records, include broad-brush references to trustworthiness. Adding some support to this point is FRE 806, which lets parties impeach, and support the credibility of, those who make statements admitted under the various exceptions.
Mueller & Kirkpatrick, 4 Federal Evidence § 438. As an example, in the instant case the government argues if the district court had admitted Naiden’s statement the result would have been devastating for Naiden because it would have permitted the government to introduce damaging evidence to impeach Naiden’s statement.
Even if it were proper for the district court to exclude Naiden’s statement based on questions about candor, in my view, the facts in this case did not present the district court with a basis to exclude Naiden’s statement on such grounds. In the cases in which other courts have considered an opportunity to reflect and fabricate as a permissible consideration under Rule 803(3), the courts generally have considered the amount of time that has passed between the time the exculpatory statement was made and the last alleged act forming the basis of the criminal conduct or the moment the defendant knows he is the subject of criminal investigation. See, e.g., United States v. Reyes, 239 F.3d 722, 743 (5th Cir.2001) (recorded statements made two months after defendant’s last criminal act and after defendant suspected criminal investigation properly excluded); United States v. LeMaster, 54 F.3d 1224, 1231-32 (6th Cir.1995) (statements made 24 hours after relevant conduct after defendant, who was a lawyer, knew he was under investigation and that FBI had recorded proof against him properly excluded); United States v. Jackson, 780 F.2d 1305, 1315 (7th Cir.1986) (noting “defendant’s statements were made two years after the fuel-stealing scheme had ended,” and defendants had “potentially an incentive to misrepresent the truth in their conversations”). Naiden’s exculpatory statement was made well before his arrest and before his last criminal act. The fact that Naiden continued to engage in incriminating online conversations with Stephanie for three weeks after making the statement to Viste-Ross shows Naiden did not know he was the subject of an undercover police operation when he made the statement to Viste-Ross.
The majority appears to focus on the amount of time that has passed between the time the exculpatory statement was made and the first act forming the basis of *726the alleged criminal conduct. The majority states: “The facts of this case illustrate how the passage of time may prompt someone to make a deliberate misrepresentation” of their state of mind: The court cites examples of Naiden’s attempts to “conceal his criminal intentions” on “February 15, the day after his conversation with Viste-Ross,” including Naiden’s plans to tell his landlady Stephanie was his niece and his reluctance to send Stephanie money through the mail. It cannot be the passage of time, however, which prompted Naiden to conceal his crime because, according to the government, Naiden began concealing his crime from the very beginning. The government argues: “In the February 13, 2003 communication with Stephanie, Naiden had already begun crafting lies to mask his plan to have sex with a child. In this very first communication, he wanted to stage Stephanie’s disappearance from Ohio as her running away from home. He told Stephanie he would go to jail if he were caught and demanded she ‘tell absolutely no one’ about her plan to travel to Minnesota to have sex with him.” Appellee’s Br. at 15-16 n. 8. I also do not believe evidence demonstrating Naiden’s attempt to conceal his criminal activity should be the basis for excluding Naiden’s statement as self-serving. Relying on evidence of Naiden’s attempt to conceal his criminal activity to exclude his exculpatory statement necessarily presumes the existence of criminal activity ^to conceal. This reverses the presumption of innocence at trial to a presumption of guilt.
Although I believe the district court erred in excluding Viste-Ross’s testimony as inadmissible hearsay, I agree the error was harmless in light of the overwhelming evidence demonstrating Naiden’s guilt. Accordingly, I concur in the judgment.