dissenting:
I respectfully dissent. Defendant’s convictions and sentence should be affirmed.
A. “Other Acts” Evidence
The district court did not err in admitting “other acts” evidence.
Defendant is charged in this case with cheating Mitsui repeatedly by overcharging it 2 percent for wood chips. The government proffered evidence concerning various methods by which Defendant manipulated his wood-chip inventory: He underpaid suppliers by 5 percent; he tampered with the sampling process by undercooking the green-wood samples; he misrepresented chip sizes in loads of wood chips; he falsified reports stating the overall amount of chips in his inventory; and he intentionally over-reported the number of incoming truckloads of chips.
The district court admitted that evidence of other acts because all the methods of cheating wood-chip business associates were “inextricably intertwined.” When evidence of other acts is inextricably intertwined with evidence of the charged crime, the other-acts evidence is admissible notwithstanding Federal Rule of Evidence 404. United States v. King, 200 F.3d 1207, 1214 (9th Cir.1999).
We review de novo the legal question whether evidence falls within the scope of Rule 404(b). United States v. Rrapi, 175 F.3d 742, 748 (9th Cir.1999). Here, the district court did not err in concluding that the evidence offered was “inextricably intertwined” with the crime charged. For *873example, during a taped conversation with one of his laboratory assistants, Defendant discussed both the 2 percent overcharges to Mitsui — the charged conduct — and the 5 percent underpayment to suppliers — uncharged conduct — as part of the same transaction. See id. (stating that evidence is inextricably intertwined if it “constitutes a part of the transaction that serves as a basis for the criminal charge” (citation and internal quotation marks omitted)).
Even assuming, however, that some of the other-acts evidence was not inextricably intertwined with evidence of the charged crime, the district court still did not abuse its discretion. See United States v. Sevang, 156 F.3d 910, 915 (9th Cir.1998) (stating our standard of review). The other-acts evidence was admissible to prove Defendant’s intent to defraud. That was an element the government had to prove, United States v. Lothian, 976 F.2d 1257, 1267-68 (9th Cir.1992), and it expressly is a permitted reason to admit other-acts evidence, Fed.R.Evid. 404(b).
Defendant did not deny making the adjustments charged in the indictment. His claim was that he did so in order to reflect the measurement of wood chips more accurately, not less accurately. In other words, his theory was that he had committed the charged acts, but lacked fraudulent intent. This is classically a situation in which evidence about other fraudulent acts is admissible to prove intent. See United States v. Ayers, 924 F.2d 1468, 1473-74 (9th Cir.1991) (upholding a district court’s decision to admit evidence of uncharged conduct to prove that a defendant had the requisite intent to conceal income).
The evidence thus neatly fits the four-part test we apply to determine whether “other acts” .evidence is admissible to prove something other than propensity. See United States v. Romero, 282 F.3d 683, 688 (9th Cir.) (describing four-part test), cert. denied, — U.S. -, 123 S.Ct. 228, 154 L.Ed.2d 96 (2002).(1) There was clear evidence that the other acts occurred. . (2) The other acts clearly demonstrated Defendant’s intent to defraud business associates, a material element of the government’s case. (3) The other acts were similar to the crime charged, because they were other attempts to enhance Defendant’s wood-chip revenue by manipulating wood-chip measurements in the course of conducting the same business enterprise. (4) All the other acts took place at around the same time as the charged conduct.
Finally, the district court permissibly concluded that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. Fed. R.Evid. 403.
B. Luke Culver’s Testimony
The district court did not err in admitting the testimony of Luke Culver.
Defendant argues that Culver’s testimony was “completely irrelevant” to any issue at trial and that “[h]is testimony merely went to the fact that he felt he had been cheated.” Those assertions are plainly incorrect. Culver testified for several pages about how the wood-chip business operates and, more specifically, about how wood chips are measured.1 By contrast, he did *874not testify that he felt he had been cheated.
More specifically, Defendant complains about two questions asked at the end of Culver’s direct testimony: (!) “Did [Defendant] ever tell you, Mr. Culver, that he was not paying you for 5 percent of the BDU weight that was ... being brought in by your trucks?” (to which Culver answered, “No.”). (2) “[W]ould that — a 5 percent reduction in what you were being paid, would that have been significant to you?” (to which Culver answered, “That’d be more than my profit margin.”).
Defendant objected to neither question at trial on the basis of relevance or undue prejudice, which are his arguments on appeal. But even if he had preserved those issues, they would not avail him.
Defendant had placed his credibility at issue by asserting that he had ordered a 5 percent reduction in' inventory innocently, had been forthright about the reduction, and had not cheated the suppliers because the reduction did not affect the suppliers’ revenue. That being so, Culver’s testimony was relevant.
Moreover, the questions were narrow and not inflammatory, especially in the context of Culver’s rather technical and unemotional testimony. The district court was not required to exclude this testimony.
C. Closing Argument
Defendant is not entitled to a reversal based on the prosecutor’s closing argument.
Unquestionably, the prosecutor should not have spoken the sentence to which Defendant objected: “And my question to you is, if a man is willing to cheat a little bit over here, wouldn’t he be willing to cheat just a little bit over here?” As structured, that sentence asked the jury to conclude that Defendant has a propensity to cheat.
That error does not, by itself, require reversal, however. As the majority notes, maj. op. at 871, we review for harmless error where, as here, the defendant objected. We must consider the prosecutor’s erroneous comment in the context of the entire trial, and reverse only if the remark likely affected the jury’s verdict. See United States v. Frederick, 78 F.3d 1370, 1379 (9th Cir.1996) (“ ‘When prosecutorial conduct is called in question, the issue is whether, considered in the context of the entire trial, that conduct appears likely to have affected the jury’s discharge of its duty to judge the evidence fairly.’ ” (quoting United States v. Simtob, 901 F.2d 799, 806 (9th Cir.1990))).
Viewed in the context of the entire trial, the prosecutor’s erroneous statement could not have affected the jury’s verdict. Thus, the error does not require reversal.
First, there was ample evidence to sustain the conviction. Defendant instructed subordinates to alter chip classification summaries sent to Mitsui, which they did, and they so testified. Defendant instructed subordinates to inflate the number of incoming truckloads on daily reports to Mitsui, which they did, and they so testified. Defendant instructed a subordinate to alter the “bone dry unit” calculations and inventory listed on reports sent to Mitsui, which she did, and she so testified.
Second, the court appropriately cautioned the jury. Immediately after Defendant objected, the court admonished the *875jury to “consider only the charges in this case in reaching its decision, the 28 counts in the indictment.” Arguably, that instruction benefited Defendant by suggesting that the jury should not even consider uncharged conduct at all, for any purpose. In any event, the shorthand admonition must be considered in context. The court already had instructed the jury several times that Defendant was on trial only for the 28 counts charged in the indictment and that it could consider evidence of these other acts only for relevant purposes.2 At all events, the court fully instructed the jury right after the closing arguments. The instructions explained the proper purposes for, and limitations on, other-acts evidence:
You have heard evidence of adjustments which the Government alleges that the Defendant directed Ms. Barnes to make to the Bone Dry Units (“BDU”) taken off the trucks, and to the documents classifying chips by size. The Government alleges that these adjustments understated the BDU by 5%. You have also heard evidence that certain of the Defendant’s employees misstated the number of trucks delivering chips to the pile. You may consider this evidence only as it bears on the Defendant’s intent and knowledge and on the relationship between the Defendant and Ms. Barnes and the context in which Ms. Barnes performed her duties, and for no other purposes. Specifically, you are here to decide only whether the Defendant is guilty or not guilty of the charges in the indictment. Your determination is to be made only from the evidence in the case. The Defendant is not on trial for any conduct or offense not charged in the indictment, including any underpayment to the truckers or any misstatement regarding the size of chips or the number of truck deliveries to the pile. You should consider evidence about the acts, statements, and intentions of others, or evidence about other acts of the Defendant only as they relate to these charges against this Defendant.
The district court’s brief admonition, right after the objectionable statement, taken in the context of the whole trial, effectively neutralized the prosecutor’s error.
Third, the difference between what the prosecutor actually said, and what the prosecutor permissibly could have said, is slight and subtle. Lawyers can tell the difference, but lay jurors would not have reacted any differently. Had the prosecutor said, for example, “And my question to you is, if a man cheats a little bit over here, how can you believe his claim that he didn’t intend to cheat a little bit over there?,” any legal error would evaporate, but it is unimaginable that the jury would have reached a different result due to the *876rephrasing of one sentence in a 10-page argument.
The other line of argument that the majority criticizes is not a propensity argument at all. The prosecutor asserted that Defendant had taken the opportunity to cheat vulnerable suppliers by 5 percent and argued that, “when you consider all the evidence in this case[,] ... you’ll find that [he] cheated” Mitsui by 2 percent as charged. The implication was that Defendant meant to cheat Mitsui, even though the amount was small; 2 percent could be a mistake, but in this case the evidence showed intentional, fraudulent conduct. That is precisely the inference that Rule 404(b) allows a jury to draw.
In short, the majority’s reversal merely for inartful phrasing is wholly unjustified under our standard of review. Therefore, I dissent.
. An example of Culver's testimony is his definition of a "flailer”:
It’s a chain flail. It’s a machine that you — and you can flail — sometimes they're in combination with a chipper, is one machine and then they're also a standalone flail. And it's a machine that has drums with chain on it that literally just — the tree goes through it and it beats the bark and the limbs off of the tree, so you have nothing but the white wood left to — that goes into the chipper.
*874Culver explained what a “chip truck” is. He testified about how many "green tons” a specialized chip-hauling van holds. He explained the meaning of a “bone dry unit” and what "$62 on board truck” means. He described the process of establishing the bone dry unit for a truckload of chips.
. For example, on the third day of trial, the court had instructed the jury after an objection that Defendant was on trial only for the 28 counts charged:
[Defendant] is not on trial for anything else. And any other testimony regarding so-called adjustments or falsifications of any other records, whether it be with reference to truckers with whom the company was dealing, whether it be with Mitsui on other occasions, is only relevant insofar as it helps you to understand the relationship between [Defendant] and Ms. Barnes and how [Defendant] was instructing Ms. Barnes to perform Ms. Barnes’ responsibilities as de facto supervisor of the laboratory.... So basically to the extent that the Court has allowed any evidence regarding transactions with truckers, ... anything about recording the numbers of trucks that came to the site, the quantity of inventory, all of those things are only relevant insofar as it helps you to understand Ms. Barnes’ testimony and make a judgment as to whether she is telling the truth or not.