UNITED STATES, Appellee, v. Basil HANSEN, Defendant-Appellant, 369 F. App'x 215

SUMMARY ORDER Hansen was convicted of six drug offenses, including conspiracy to import heroin and cocaine, in violation of 21 U.S.C. §§ 960 and 963, and conspiracy to possess with intent to distribute heroin and cocaine, in violation of 21 U.S.C. §§ 841 and 846. He argues on appeal that the district court erred by allowing the Government to introduce “other act” evidence, and that the jury’s inadvertent exposure to extra-record evidence deprived him of his right to a fair trial. We assume the parties’ familiarity with the case.

Hansen’s argument that the district court abused its discretion by allowing his co-conspirator to testify about their relationship prior to the conspiracy is without merit. We evaluate the admission of “other act” evidence based on an “inclusionary approach,” upholding the admission of such evidence “for any purpose other than to show a defendant’s criminal propensity.” United States v. Brand, 467 F.3d 179, 196 (2d Cir.2006); see also United States v.

Garcia, 291 F.3d 127, 136 (2d Cir.2002). “[Ojne legitimate purpose for pi’esenting evidence of extrinsic acts is to explain how a criminal relationship developed; this sort of proof furnishes admissible background information in a conspiracy case.” United States v. Pipola, 83 F.3d 556, 566 (2d Cir.1996). Here, in granting the Government’s motion to admit his co-conspirator’s testimony, the court noted that, “[a]t the very least, this testimony is properly admissible to allow the jury to get a feel for the nature of the relationship between Mr.

Hansen and [the witness].” This was a proper purpose that provided relevant background information. See id. The court also provided a limiting instruction to the jury, explaining that the testimony was only being admitted “to the extent it sheds light on the nature of the relationship between the defendant on trial and this witness who is testifying against him.” This instruction sufficiently cabined any possible prejudice. See United States v. Araujo, 79 F.3d 7, 8 (2d Cir.1996).

Also without merit is Hansen’s argument that the jury’s inadvertent exposure to extra-record evidence deprived him of his right to a fair trial. “[A] criminal defendant’s Sixth Amendment rights are implicated when a jury considers incriminating evidence that was not admitted at trial.” Loliscio v. Goord, 263 F.3d 178, 185 (2d Cir.2001). “[E]xtra-record information that comes to the attention of a juror is presumptively prejudicial.” United States v. Wiley, 846 F.2d 150, 157 (2d Cir.1988) (internal quotation marks omitted).

However, this presumption may be rebutted by a showing that the jury’s exposure to extra-record information was harmless. Bibbins v. Dalsheim, 21 F.3d 13, 16 (2d Cir.1994). Importantly, the trial judge’s conclusions regarding the effect of the extra-record evidence on the jury are entitled to substantial weight. See United States v. Weiss, 752 F.2d 777, 783 & n. 2 (2d Cir.1985). Here, the introduction of extra-record evidence was not prejudicial because there was no indication that the jury actually considered it.

The district court explicitly credited the jurors’ statements that they had not looked at the extra-record evidence. This finding, which is entitled to substantial weight, is sufficient to defeat the presumption of prejudice. See id. Accordingly, the judgment of the district court hereby is AFFIRMED.