United States v. Prime

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 02-30375

Plaintiff-Appellee, D.C. No.

v.

 CR-01-00310-RSL

MICHAEL STEFAN PRIME, ORDER AND

Defendant-Appellant. AMENDED

 OPINION

Appeal from the United States District Court

for the Western District of Washington

Robert S. Lasnik, District Judge, Presiding

Argued and Submitted

February 4, 2004—Seattle, Washington

Filed April 16, 2004

Amended December 14, 2005

Before: Stephen S. Trott, Richard A. Paez, and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Trott

16299

16302 UNITED STATES v. PRIME

COUNSEL

Anna M. Tolin, Siderius Lonergan & Martin, Seattle, Wash-

ington, for the defendant-appellant.

Michael T. Sennott, Siderius Lonergan & Martin, Seattle,

Washington, for the defendant-appellant.

Bruce F. Miyake, Assistant United States Attorney, Seattle,

Washington, for the plaintiff-appellee.

UNITED STATES v. PRIME 16303

ORDER

Pursuant to the United States Supreme Court order vacating

the judgment and remanding this case back to this Court for

further consideration in light of Booker v. United States, 543

U.S. ___ (2005), the Opinion filed April 16, 2004, slip op.

4979, and appearing at 363 F.3d 1028 (9th Cir. 2004), is

amended as follows:

On page 1038 of the Opinion, delete AFFIRMED and in

its place insert the following terminal paragraphs:

Because the defendant was sentenced under the

then-mandatory Sentencing Guidelines, and because

we cannot reliably determine from the record

whether the sentence imposed would have been

materially different had the district court known that

the Guidelines were advisory, we remand to the sen-

tencing court to answer that question, and to proceed

pursuant to United States v. Ameline, 409 F.3d 1073,

1084 (9th Cir. 2005) (en banc). See also United

States v. Moreno-Hernandez, 419 F.3d 906, 916 (9th

Cir. 2005) (“[D]efendants are entitled to limited

remands in all pending direct criminal appeals

involving unpreserved Booker error, whether consti-

tutional or nonconstitutional”).

Conviction AFFIRMED; sentence REMANDED.

16304 UNITED STATES v. PRIME

OPINION

TROTT, Circuit Judge:

I

OVERVIEW

Michael Prime (“Prime”) was charged with, and convicted

of, one count of conspiracy to commit wire fraud, in violation

of 18 U.S.C. § 371; one count of conspiracy to manufacture

counterfeit securities, in violation of 18 U.S.C. § 371; and

three counts of possessing, manufacturing, and uttering coun-

terfeit securities, in violation of 18 U.S.C. § 513(a). Prime

raises four issues on appeal: 1) whether the district court prop-

erly denied his motion for a Franks hearing;1 2) whether the

court abused its discretion in allowing the testimony of an

expert handwriting analyst; 3) whether the court abused its

discretion in not allowing Prime to substitute counsel; and 4)

whether the jury’s potential exposure to extrinsic evidence

was grounds for a new trial. We have jurisdiction under 28

U.S.C. § 1291, and we affirm all of the district court’s orders

and decisions.

II

BACKGROUND

Between April and June 2001, Prime, along with three co-

conspirators, David Hiestand (“Hiestand”), Juan Ore-Lovera,

1

In order to receive a Franks hearing, the defendant must make a non-

conclusory and “ ‘substantial preliminary showing’ that the affidavit con-

tained actual falsity, and that the falsity either was deliberate or resulted

from reckless disregard for the truth.” United States v. Chesher, 678 F.2d

1353, 1360 (9th Cir. 1982) (citing Franks v. Delaware, 438 U.S. 154, 171

(1978)). There is no evidence that the immaterial inaccuracies contained

in the affidavit were either deliberate or made with reckless disregard for

the truth, and thus this issue on appeal is without merit.

UNITED STATES v. PRIME 16305

and Jeffrey Hardy, sold non-existent items on eBay, pur-

chased items using counterfeit money orders created by the

group, sold pirated computer software, and stole credit card

numbers from software purchasers. To facilitate this opera-

tion, Prime and his cohorts used a credit card encoder to input

the stolen data on their own credit cards, set up post office

boxes under false names, manufactured false identifications,

and used a filter bank account to hide proceeds of the crimes.

At trial, numerous victims testified as to the details sur-

rounding how they had been defrauded by Prime’s various

scams. In addition, co-conspirators Hiestand and Hardy both

extensively testified as to the details of the conspiracy, impli-

cating Prime in all of the crimes charged. The prosecution

also elicited the expert opinion of Kathleen Storer (“Storer”),

a forensic document examiner with the Secret Service. She

testified that Prime was the author of as many as thirty-eight

incriminating exhibits, including envelopes, postal forms,

money orders, Post-it notes, express mail labels and postal

box applications. Prime took the stand in his own defense and

claimed that despite all of the evidence linking him to the var-

ious scams, including admissions that his fingerprints were on

several items linked to the crimes, he was simply attempting

to engage in legal entrepreneurial ventures. Prime also con-

firmed that he had previously been convicted of first and sec-

ond degree theft, two counts of possession of stolen property

in the second degree, and forgery. The jury found Prime

guilty on all counts.

Prime moved for a new trial based on the improper submis-

sion of extrinsic evidence to the jury. The district court denied

the motion, and this appeal follows.

III

ADMISSIBILITY OF EXPERT TESTIMONY

Prime moved in limine to exclude Storer’s expert testi-

mony. The court held a Daubert hearing where both sides

16306 UNITED STATES v. PRIME

were allowed to offer voluminous materials and expert testi-

mony regarding the reliability of the proposed testimony.

Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).

After careful consideration, the court denied the motion, see

United States v. Prime, 220 F. Supp. 2d 1203 (W.D. Wash.

2002), and Storer testified that, in her opinion, Prime’s hand-

writing appeared on counterfeit money orders and other

incriminating documents. On appeal, Prime contends that the

admission of expert testimony regarding handwriting analysis

was unreliable under Daubert, and thus the court abused its

discretion by allowing Storer to testify.

Handwriting Analysis

[1] In Daubert, the Supreme Court set forth the guiding

principle that “under [Federal Rule of Evidence 702]2 the trial

judge must ensure that any and all scientific testimony or evi-

dence admitted is not only relevant, but reliable.” 509 U.S. at

589. In order to assist the trial courts with this task, the Court

suggested a flexible, factor-based approach to analyzing the

reliability of expert testimony. Id. at 593-95. Although not an

exclusive list, these factors include: 1) whether a method can

or has been tested; 2) the known or potential rate of error; 3)

whether the methods have been subjected to peer review; 4)

whether there are standards controlling the technique’s opera-

tion; and 5) the general acceptance of the method within the

relevant community. Id. at 593-94.

[2] Kumho Tire Co. v. Carmichael resolved any post-

Daubert uncertainty that the trial judge’s responsibility to

keep unreliable expert testimony from the jury applies not

only to “scientific” testimony, but to all expert testimony. 526

2

“If scientific, technical, or other specialized knowledge will assist the

trier of fact to understand the evidence or to determine a fact in issue, a

witness qualified as an expert by knowledge, skill, experience, training, or

education, may testify thereto in the form of an opinion or otherwise . . .”

FED. R. EVID. 702.

UNITED STATES v. PRIME 16307

U.S. 137, 148 (1999). As a result, this “basic gatekeeping

obligation” applies with equal force in cases, such as this one,

where “non-scientific” experts wish to relate specialized

observations derived from knowledge and experience that is

foreign to most jurors. Id. Kumho Tire also makes it clear that

“the trial judge must have considerable leeway in deciding in

a particular case how to go about determining whether partic-

ular expert testimony is reliable,” as well as the ultimate

determination of whether the proposed expert testimony is

reliable. Id. at 152. Accordingly, we review the district court’s

decision to admit or deny expert testimony for abuse of dis-

cretion. Id.

In accordance with Kumho Tire, the broad discretion and

flexibility given to trial judges to determine how and to what

degree these factors should be used to evaluate the reliability

of expert testimony dictate a case-by-case review rather than

a general pronouncement that in this Circuit handwriting anal-

ysis is reliable. As the Supreme Court concluded,

we can neither rule out, nor rule in, for all cases and

for all time the applicability of the factors mentioned

in Daubert, nor can we now do so for subsets of

cases categorized by category of expert or by kind of

evidence. Too much depends upon the particular cir-

cumstances of the particular case at issue.

Id. at 150; see also United States v. Hankey, 203 F.3d 1160,

1168 (9th Cir. 2000) (quoting Skidmore v. Precision Printing

and Packaging, Inc., 188 F.3d 606, 618 (5th Cir. 1999)

(“Whether Daubert’s suggested indicia of reliability apply to

any given testimony depends on the nature of the issue at

hand, the witness’s particular expertise, and the subject of the

testimony. It is a fact-specific inquiry.”) (internal citations

omitted)).

In this case, Storer was given 112 pages of writing known

to be Prime’s, 114 pages of Hiestand’s, and 14 pages of

16308 UNITED STATES v. PRIME

Hardy’s. She was then asked whether the handwriting on 76

documents associated with the alleged conspiracy, such as

envelopes, postal forms, money orders, Post-it notes, express

mail labels and postal box applications, belonged to any of the

co-conspirators.3 Storer “identified” Prime’s handwriting on

45 of the documents.

Following the Daubert hearing, the district court issued a

brief order concluding that the proposed forensic document

examination testimony was reliable. After the conclusion of

the trial, the district court issued a more detailed Order

Regarding Defendant’s Motion in Limine, which thoroughly

and specifically analyzed the reliability of Storer’s testimony

with respect to each of the Daubert factors. See Prime, 220

F. Supp. 2d 1203.

1. Whether the theory or technique can be or has been

tested

Handwriting analysis is performed by comparing a known

sample of handwriting to the document in question to deter-

mine if they were written by the same person. The govern-

ment and Storer provided the court with ample support for the

proposition that an individual’s handwriting is so rarely iden-

tical that expert handwriting analysis can reliably gauge the

likelihood that the same individual wrote two samples. The

most significant support came from Professor Sargur N. Sri-

hari of the Center of Excellence for Document Analysis and

Recognition at the State University of New York at Buffalo,

who testified that the result of his published research was that

“handwriting is individualistic.” With respect to this case in

particular, the court noted that Storer’s training credentials in

the Secret Service as well as her certification by the American

Board of Forensic Document Examiners were “impeccable.”

3

Prime has not raised as an issue, and we have no reason to believe, that

the questioned writing samples were of insufficient length to support a

valid analysis.

UNITED STATES v. PRIME 16309

The court also believed that Storer’s analysis in this case was

reliable given the “extensive” 112 pages containing Prime’s

known handwriting.

2. Whether the technique has been subject to peer review

and publication

The court cited to numerous journals where articles in this

area subject handwriting analysis to peer review by not only

handwriting experts, but others in the forensic science com-

munity. Additionally, the Kam study, see infra, which evalu-

ated the reliability of the technique employed by Storer of

using known writing samples to determine who drafted a doc-

ument of unknown authorship, was both published and sub-

jected to peer review. The court also noted that the Secret

Service has instituted a system of internal peer review

whereby each document reviewed is subject to a second, inde-

pendent examination.

3. The known or potential rate of error

In concluding that the type of handwriting analysis Storer

was asked to perform had an acceptable rate of error, the court

relied on studies conducted by Professor Moshe Kam of the

Electrical and Computer Engineering Department at Drexel

University. Professor Kam’s studies demonstrated that expert

handwriting analysts tend to be quite accurate at the specific

task Storer was asked to perform — determining whether the

author of a known writing sample is also the author of a ques-

tioned writing sample. When the two samples were in fact

written by the same person, professional handwriting analysts

correctly arrived at that conclusion 87% of the time. On the

other hand when the samples were written by different people,

handwriting analysts erroneously associated them no more

than 6.5% of the time. While Kam’s study demonstrates some

degree of error, handwriting analysis need not be flawless in

order to be admissible. Rather, the Court had in mind a flexi-

ble inquiry focused “solely on principles and methodology,

16310 UNITED STATES v. PRIME

not on the conclusions that they generate.” Daubert, 509 U.S.

at 595. As long as the process is generally reliable, any poten-

tial error can be brought to the attention of the jury through

cross-examination and the testimony of other experts.

4. The existence and maintenance of standards

controlling the technique’s operation

The court recognized that although this area has not been

completely standardized, it is moving in the right direction.

The Secret Service laboratory where Storer works has main-

tained its accreditation with the American Society of Crime

Laboratory Directors since 1998, based on an external profi-

ciency test. Furthermore, the standard nine-point scale used to

express the degree to which the examiner believes the hand-

writing samples match was established under the auspices of

the American Society for Testing and Materials (“ASTM”).

The court reasonably concluded that any lack of standardiza-

tion is not in and of itself a bar to admissibility in court.

5. General acceptance

The court recognized the broad acceptance of handwriting

analysis and specifically its use by such law enforcement

agencies as the CIA, FBI, and the United States Postal Inspec-

tion Service.

[3] Given the comprehensive inquiry into Storer’s proffered

testimony, we cannot say that the district court abused its dis-

cretion in admitting the expert handwriting analysis testi-

mony. The district court’s thorough and careful application of

the Daubert factors was consistent with all six circuits that

have addressed the admissibility of handwriting expert testi-

mony, and determined that it can satisfy the reliability thresh-

old. See United States v. Crisp, 324 F.3d 261, 269-70 (4th Cir.

2003); United States v. Mooney, 315 F.3d 54, 63 (1st Cir.

2002); United States v. Jolivet, 224 F.3d 902, 906 (8th Cir.

2000); United States v. Paul, 175 F.3d 906, 911 (11th Cir.

UNITED STATES v. PRIME 16311

1999); United States v. Jones, 107 F.3d 1147, 1161 (6th Cir.

1997); United States v. Velasquez, 64 F.3d 844, 850-52 (3d

Cir. 1995).

IV

SUBSTITUTION OF COUNSEL

On November 29, 2001, four days before trial was set to

begin, Prime filed a motion to substitute counsel, which the

district court granted. The trial was continued to accommo-

date the newly-appointed counsel, Lee Covell (“Covell”), and

after an additional stipulated continuance, was set for May 20,

2002. On May 9, 2002, at Prime’s request, Covell filed an ex

parte motion to withdraw and substitute counsel. The follow-

ing day the court held a closed-court inquiry without the pros-

ecution to address this request. After hearing from both Prime

and Covell, the court denied the motion.

Four days before trial, Prime filed yet another motion for

substitution of counsel. On the morning of trial, just before

the proceedings were set to begin, John Rosellini

(“Rosellini”), Prime’s privately retained attorney, appeared

before the court requesting, pursuant to this motion, that he be

substituted as counsel on the condition that a 120-day contin-

uance be granted. The court denied this motion as well. Prime

appeals the denial of both motions to substitute counsel.

A. Standard of Review

A district court’s refusal to substitute counsel is reviewed

for abuse of discretion. United States v. Castro, 972 F.2d

1107, 1109 (9th Cir. 1992). The district court’s ruling on a

motion for a continuance is also reviewed for abuse of discre-

tion. United States v. Garrett, 179 F.3d 1143, 1444-45 (9th

Cir. 1999) (en banc).

16312 UNITED STATES v. PRIME

B. Attempt to Remove Covell

[4] We must examine three elements when reviewing a dis-

trict court’s denial of a substitution motion: 1) the timeliness

of the motion; 2) the adequacy of the district court’s inquiry

into the defendant’s complaint; and 3) whether the asserted

conflict was so great as to result in a complete breakdown in

communication and a consequent inability to present a

defense. Castro, 972 F.2d at 1109. Given the judge’s recogni-

tion and proper assessment of each of these factors, we con-

clude that he did not abuse his discretion in denying the

motion to remove Covell and substitute new counsel.

1. Timeliness

[5] In United States v. Garcia, we held that a motion made

six days before the trial was scheduled to begin was not

timely because the quantity and complexity of the discovery

materials would have required a continuance. 924 F.2d 925,

926 (9th Cir. 1991). In this case, the substitution motion was

made ten days before trial, which given the quantity and com-

plexity of the evidence and issues is not significantly different

from the situation in Garcia. As the district judge noted, “it

would be extremely unlikely that any new counsel could be

appointed and be in a position to be prepared to go to trial in

a mere 10 days from now.” We are not suggesting that any

particular time period prior to trial is dispositive regarding

this factor. Rather, timeliness may depend on the reason for

substitution, and its strength. If, for example, counsel was

indeed unprepared, the defendant might not have cause to

raise unpreparedness until shortly before trial, when prepared-

ness would be expected.

2. Adequacy of the Inquiry

[6] Prime was given a full and fair opportunity to explain

why he felt substitution was necessary. After the court

allowed Prime an opportunity to voice his concerns, the court

UNITED STATES v. PRIME 16313

responded “[s]o it’s basically Mr. Covell met with your par-

ents, they told you that they didn’t feel that he was prepared,

that he was not - - didn’t have a defense plan, and you’re

going with their advice?” Prime agreed with the court’s sum-

mary of his position. The court then asked Prime “Is there

anything else you want to bring to my attention?” At this

point, Prime expressed his concern that Covell had given up,

and was working on sentencing issues rather than his defense.

Covell then testified that he was well prepared for the trial

and he had no difficulties communicating with Prime.

Because Prime was given the opportunity to express whatever

concerns he had, and the court inquired as to Covell’s com-

mitment to the case and his perspective on the degree of com-

munication, we find that the hearing was adequate.

3. Degree of communication breakdown

Based on Covell’s representation that he had no difficulties

communicating with Prime and that he and Prime enjoyed a

good rapport and working relationship, in addition to the lack

of any indication by Prime that communication was a prob-

lem, the court properly determined that Prime failed to dem-

onstrate any breakdown in the attorney-client relationship.

[7] In light of the district court’s reasoned determination

with regard to each of the three factors, the court did not

abuse its discretion in denying Prime’s motion to remove his

appointed attorney days before trial.

C. Attempt to Substitute Rossellini

[8] The district court did not abuse its discretion in denying

this motion.4 As the district court expressed “Mr. Prime has

4

The three factors considered above do not comprise an exclusive list.

See, e.g., Hudson v. Rushen, 686 F.2d 826, 829 (9th Cir. 1982) (“In evalu-

ating trial court’s denial of a motion for new counsel, we consider a num-

ber of factors, including [timeliness, adequacy of inquiry, and degree of

16314 UNITED STATES v. PRIME

already gone through two attorneys at public expense and did

not choose to try to retain counsel until the very, very eve of

trial.” In addition, the court noted that the government wit-

nesses had already been brought from great distances at a con-

siderable expense. The court also reminded counsel that the

trial had been set for this time because, due to the court’s busy

schedule, this was the only time available to try the case in a

timely manner. Finally, as the court suggested, a strong infer-

ence could be drawn that this motion was brought for pur-

poses of delay, as it was the second such eve-of-trial motions,

accompanied, as before, by a request for a continuance. The

district court’s decision was not, therefore, an abuse of discre-

tion.

V

JURY EXPOSURE TO EXTRINSIC EVIDENCE

As jury deliberations commenced, a problem arose when

the jury was mistakenly provided access to 24 exhibits that

had not been admitted into evidence. The extrinsic evidence

included money orders and e-mail correspondence with ali-

ases used to conduct fraudulent transactions, written reports

by both the fingerprint and handwriting expert, and certified

copies of prior convictions for both Prime and his friend

Shawn Cahill.

The court became aware of this mistake when the jury

made a request to see Storer’s handwriting report, and shortly

thereafter informed the court that they had found it. At this

point, the court recognized that the jury had been given exhib-

communication breakdown].”) (emphasis added); United States v. Mills,

597 F.2d 693, 700 (9th Cir. 1979) (“In applying the rule developed in

[Brown v. Craven, 424 F.2d 1166 (9th Cir. 1970) (concerning counsel sub-

stitution)], we consider a number of factors, including [timeliness, ade-

quacy of inquiry, and degree of communication breakdown].”) (emphasis

added).

UNITED STATES v. PRIME 16315

its that had not been admitted into evidence and that it had to

make a decision as to the impact of the evidence. After a brief

review, the court concluded that Storer’s written report did

not include anything that had not been testified to at trial, and

that there was no harm given the brief period it was available

to the jury.

During this time, the prosecution also brought to the court’s

attention that there may be other exhibits in the jury room that

had not been admitted into evidence. The court then called the

jury into the courtroom and informed them that “the report

from Kathleen Storer . . . was never offered into evidence, and

was never admitted into evidence. It should not have gone to

the jury room. We have withdrawn the report and you should

only consider the testimony of Kathleen Storer as you remem-

ber it at trial.” The court also requested that the jury refrain

from reviewing any exhibits that were not on the master

exhibit list, and inform the court if they came across such

exhibits. The judge asked the jury foreperson if she had

“come across any other exhibits so far that were not identified

on the master list,” to which she responded “no.” The judge

then stated “I’m going to ask this question of the entire jury,

and if in [sic] anybody says, yes, please raise your hand.” The

judge asked “[h]as anyone else come across an exhibit that

was not on the master exhibit list.” The court noted that there

was no response. All extrinsic evidence was then pulled from

the exhibit boxes before the exhibits admitted into evidence

were returned to the jury. Once more, the judge called the jury

into the courtroom and admonished them that “[y]ou should

not hold this mistake against Mr. Prime at all. Neither he nor

Mr. Covell had anything to do with this, but it is so important

that you decide this case strictly on those exhibits that have

been admitted into evidence . . . . So, if you have any ques-

tions or doubts about anything, and you want to look back and

make sure that it is an exhibit that has been admitted, I would

urge you to be very, very careful in that regard.”

Based on the availability of this extrinsic evidence to the

jury, Prime filed a motion for mistrial, which was denied.

16316 UNITED STATES v. PRIME

A. Standard of Review

Ordinarily, we review the denial of a motion for mistrial for

abuse of discretion. United States v. Mills, 280 F.3d 915, 921

(9th Cir. 2002). Where jurors are exposed to extrinsic evi-

dence, however, we are to engage in an independent review

of the entire record. United States v. Keating, 147 F.3d 895,

899 (9th Cir. 1998).

B. Improperly Admitted Exhibits

[9] “A defendant is entitled to a new trial when the jury

obtains or uses evidence that has not been introduced during

trial if there is ‘a reasonable possibility that the extrinsic

material could have affected the verdict.’ ” Dickson v. Sulli-

van, 849 F.2d 403, 405 (9th Cir. 1988) (quoting United States

v. Vasquez, 597 F.2d 192, 193 (9th Cir. 1979)). The prosecu-

tion bears the burden of proving beyond a reasonable doubt

that extrinsic evidence did not contribute to the verdict. Id. at

405-06.

[10] In Dickson, we developed a five factor approach to

determine whether the prosecution met this burden. Those

factors are:

1) whether the material was actually received, and if

so, how; 2) the length of time it was available to the

jury; 3) the extent to which the jury discussed and

considered it; 4) whether the material was introduced

before a verdict was reached, and if so at what point

in the deliberations; and 5) any other matters which

may bear on the issue of the reasonable possibility of

whether the extrinsic material affected the verdict.

Id. at 406. The fifth factor includes consideration of the nature

of the extrinsic evidence. Keating, 147 F.3d at 902.

UNITED STATES v. PRIME 16317

In Jeffries v. Wood, we expanded upon the Dickson factors,

and introduced several other factors that should impact our

consideration of the extrinsic evidence in this case, including:

whether the extraneous information was otherwise

admissible or merely cumulative of other evidence

adduced at trial; whether a curative instruction was

given or some other step taken to ameliorate the

prejudice; the trial context [including consideration

of the Dickson factors]; and whether the statement

was insufficiently prejudicial given the issues and

evidence in the case.

Jeffries v. Wood, 114 F.3d 1484, 1491-92 (9th Cir. 1997).

[11] In this case, application of the Dickson and Jeffries

factors suggests that the extrinsic evidence did not affect the

verdict. Although the jury had access to the evidence for

approximately three hours, jury review of the Storer report

was not prejudicial, as it did not include anything that had not

already been testified to at trial. The fingerprint exhibits were

also cumulative of what had been testified to and admitted at

trial. Likewise, the money order, checks, and e-mail corre-

spondence were cumulative of evidence introduced at trial,

and would have been admissible had the prosecution chosen

to lay the proper foundation. As the judge stated during his

attempt to resolve this problem, “if [money orders, or other

items] had been incriminating, I’m sure the Government

would have offered it . . . .”

[12] Prime’s main concern relates to his and Cahill’s prior

conviction reports. The court, however, after specifically

inquiring of the jury, found that the jury had not reviewed the

certified copies of convictions of either Cahill or Prime.

Moreover, the court determined that even if the jury had seen

the reports, they would not have affected the verdict. The only

evidence in addition to the five felonies Prime admitted to

during his testimony was a conviction for possession of an

16318 UNITED STATES v. PRIME

incendiary device. If the jury had discovered this evidence, it

would not have affected the verdict because evidence intro-

duced at trial already established that Prime had in the past

armed himself with weapons and had obtained stun guns.

With regard to Cahill’s prior convictions, there is no possibil-

ity that that information would have affected the verdict

because as the judge commented, “I’m not sure the jury

would be surprised to find that Mr. Cahill had some prior con-

victions, since everyone else in the apartment seemed to . . . .”

In addition to the lack of prejudice, the judge also issued two

separate curative instructions, which under Jeffries, weighs in

favor of finding that the government established, beyond a

reasonable doubt, that the extrinsic evidence did not affect the

verdict. Jeffries, 114 F.3d at 1491.

[13] The extrinsic evidence given to the jury was cumula-

tive and non-prejudicial, and the court gave proper curative

instructions. Therefore, in light of the entire record, we con-

clude that the extrinsic evidence had no impact on the verdict.

We affirm the denial of the motion for mistrial.

[14] Because the defendant was sentenced under the then-

mandatory Sentencing Guidelines, and because we cannot

reliably determine from the record whether the sentence

imposed would have been materially different had the district

court known that the Guidelines were advisory, we remand to

the sentencing court to answer that question, and to proceed

pursuant to United States v. Ameline, 409 F.3d 1073, 1084

(9th Cir. 2005) (en banc). See also United States v. Moreno-

Hernandez, 419 F.3d 906, 916 (9th Cir. 2005) (“[D]efendants

are entitled to limited remands in all pending direct criminal

appeals involving unpreserved Booker error, whether consti-

tutional or nonconstitutional”).

Conviction AFFIRMED; sentence REMANDED.