United States of America v. Michael Stefan Prime - CEDAR

UNITED STATES v. PRIMEtrial if there is ‘a reasonable possibility that the extrinsicmaterial could have affected the verdict.’ ” Dickson v. Sullivan,849 F.2d 403, 405 (9th Cir. 1988) (quoting United Statesv. Vasquez, 597 F.2d 192, 193 (9th Cir. 1979)). The prosecutionbears the burden of proving beyond a reasonable doubtthat extrinsic evidence did not contribute to the verdict. Id. at405-06.[10] In Dickson, we developed a five factor approach todetermine whether the prosecution met this burden. Thosefactors are:1) whether the material was actually received, and ifso, how; 2) the length of time it was available to thejury; 3) the extent to which the jury discussed andconsidered it; 4) whether the material was introducedbefore a verdict was reached, and if so at what pointin the deliberations; and 5) any other matters whichmay bear on the issue of the reasonable possibility ofwhether the extrinsic material affected the verdict.Id. at 406. The fifth factor includes consideration of the natureof the extrinsic evidence. Keating, 147 F.3d at 902.In Jeffries v. Wood, we expanded upon the Dickson factors,and introduced several other factors that should impact ourconsideration of the extrinsic evidence in this case, including:whether the extraneous information was otherwiseadmissible or merely cumulative of other evidenceadduced at trial; whether a curative instruction wasgiven or some other step taken to ameliorate theprejudice; the trial context [including considerationof the Dickson factors]; and whether the statementwas insufficiently prejudicial given the issues andevidence in the case.Jeffries v. Wood, 114 F.3d 1484, 1491-92 (9th Cir. 1997).4995