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.