          United States Court of Appeals
                        For the First Circuit

Nos. 14–1227
     14–1250

                      UNITED STATES OF AMERICA,

                              Appellee,

                                  v.

               CHRISTOPHER S. GODFREY; DENNIS FISCHER,

                       Defendants, Appellants.


          APPEALS FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

               [Hon. Rya W. Zobel, U.S. District Judge]


                                Before

                         Lynch, Chief Judge,
               Thompson and Kayatta, Circuit Judges.



     William J. Lovett, with whom Anthony E. Fuller, Melissa
Baldwin, and Collora LLP were on brief, for appellant Godfrey.
     Robert L. Sheketoff on brief for appellant Fischer.
     Stephan E. Oestreicher, Jr., with whom Carmen M. Ortiz, United
States Attorney, Adam J. Bookbinder, Assistant United States
Attorney, Mona Sedky, Attorney, Criminal Division, Leslie R.
Caldwell, Assistant Attorney General, and Sung-Hee Suh, Deputy
Assistant Attorney General, were on brief, for appellee.



                            May 26, 2015
           KAYATTA, Circuit Judge.         In 2009, when many homeowners

faced   foreclosure,   defendants     Christopher   Godfrey   and    Dennis

Fischer started and ran a company that purported to sell mortgage

modifications.     For a hefty price, the company actually sold a

doctored version of a free government form.               Securing sales

nationwide, company employees systematically lied to customers

through personalized mailings and cold calls.           After the company

bilked distressed homeowners across the country for almost two

years, law enforcement officials came knocking, a grand jury handed

down indictments, and Godfrey and Fischer were convicted of mail

fraud, wire fraud, and misuse of a government seal, as well as

conspiring to commit these crimes.

           On    appeal,   Godfrey     and    Fischer   challenge     their

convictions by advancing four arguments: (1) the district court

violated their confrontation rights by admitting into evidence

customer complaints and cease-and-desist letters from regulators;

(2) the district court constructively amended the indictment by

admitting evidence of their lies to the IRS and then allowing the

jury to convict them based on those lies; (3) the district court

erred in instructing the jury on the elements of the charged misuse

of a government seal; and (4) the district court abused its

discretion by not dismissing a juror for bias mid-trial.            Finding

none of these arguments persuasive, we affirm.




                                     -2-
                             I.   Background1

           In early 2009, the federal government started the Home

Affordable Modification Program ("HAMP") to provide financial

relief during the foreclosure crisis. HAMP provided incentives for

lenders to modify existing loans when homeowners had financial

hardship and an ability to repay under new terms.                 To apply for

HAMP relief, homeowners filled out a Request for Modification and

Affidavit form, available for free on the Treasury Department's

website.   That form had a free counseling hotline number: the

Homeowner's HOPE hotline (888–995–HOPE).2           Submission of the form

simply started a process, the outcome of which was ultimately

dependent on whether the applicant's lender approved a mortgage

modification.    At   some   major   banks,     a    mere   ten    percent   of

applicants received relief through the HAMP program.

           Seeing a market for financial snake oil, Godfrey and

Fischer founded a Florida company--Home Owner Protection Economics,

Inc. ("HOPE").   According to its bylaws, HOPE was a "nonprofit

organization,"    established        "exclusively        for       charitable,

scientific[,] and education purposes."              HOPE purported to sell

mortgage modifications for an up-front fee of $400 to $900.              After


     1
       Our resolution of the issues does not hinge on the lens
through which we view the evidence, so we summarize that evidence
in a simple and straightforward manner, albeit one that recognizes
that the jury voted to convict.
     2
      This number connected applicants with counselors approved by
the Treasury Department.

                                   -3-
receiving the fee, HOPE provided the homeowner with an application

form       that     differed     in   just     one   respect   from   the    Treasury

Department's free HAMP form: HOPE's phone number (877–HOPE–801)

replaced the government's official phone number (888–995–HOPE).

                  Located in Delray Beach, Florida, HOPE operated out of a

"boiler room."            The room contained rows of cubicles filled with

telemarketers.3           Godfrey, the president,4 and Fischer, the vice

president,5         sat   atop   a    raised   platform   overlooking       the   room.

Vernell Burris, the general manager,6 sat "shoulder-to-shoulder"

with Godfrey and Fischer on the platform.

                  Godfrey and Fischer paid employees on commission only,

and fired employees "daily" for making too few sales.                         Fischer

recruited labor from nearby drug rehabilitation facilities because,

in his view, those people "were manipulative . . . [and] smooth

about lying."          Few new employees lasted more than a week.

                  Godfrey and Fischer encouraged their employees to lie.

For example, when Burris first started working at HOPE, he had



       3
           At its peak, HOPE employed 42 telemarketers.
       4
       Godfrey provided the initial investment for HOPE. He also
bought "lead" lists of information about homeowners who were behind
on mortgages.
       5
        Fischer was in charge of recruiting and training
telemarketers. He gave guidance to new employees about how to make
sales.
       6
       Burris assisted with recruiting and training telemarketers,
as well as handling complaints from upset customers.

                                             -4-
trouble making sales.        Fischer encouraged him to tell customers,

among other lies, that HOPE had a "98 percent success rate" in

achieving loan modifications.           As already mentioned, the record

suggested that only around ten percent of applications at major

banks achieved modification through HAMP.                 Brian Kelly, one of

HOPE's top-selling telemarketers, estimated that only four or five

of   his   150-plus    customers   acquired     a   modification.      Godfrey

instructed employees to say at the beginning of the process that

their request for loan modification was approved, and required only

the completion of additional paperwork and, of course, the receipt

of a check.     In fact, the loan modification request could never

have been granted at the outset of the process, much less by HOPE

rather than the lender.

            After     not   receiving    the   benefits    promised   to   them,

customers complained both to HOPE and to state authorities.                Many

sent e-mails directly to Godfrey and Fischer trying to get refunds.

In general, the complaints informed defendants that customers felt

misled and had sought refunds with no success.               Burris generally

fielded customer complaints, but he discussed them with Godfrey and

Fischer.     Six states sent cease-and-desist letters directly to

HOPE.7     Those letters--addressed to HOPE--informed HOPE that it

lacked a license required to engage in loan modification services.



      7
        Cease-and-desist letters came from Washington,                      New
Hampshire, Connecticut, Maine, Oregon, and Illinois.

                                        -5-
A letter from Maine's Bureau of Financial Institutions informed

HOPE that its solicitations were deceptive.

              In response to the cease-and-desist letters, Godfrey

constructed a list of "do not call states," including HOPE's home

state    of    Florida.8     In   January   2011,   Fischer   distributed   a

restrictive covenant for employees to read and sign. That covenant

forbade       employees    from   making    misrepresentations    and   from

disclosing HOPE's business methods.             According to Burris, the

covenant was intended to "cover our butt[s]" in case the government

ever investigated HOPE.

              Godfrey and Fischer enjoyed lavish trips with their ill-

gotten gains.       When funds ran low, Godfrey instructed Burris to

"[l]et the dogs out," i.e., do whatever necessary to increase

sales.    All told, HOPE raked in over $3.2 million, before the

scheme came to an end when authorities searched HOPE's office in

April 2011.

              In August 2011, a grand jury indicted Godfrey, Fischer,

Burris, and Kelly for mail fraud, 18 U.S.C. § 1341, wire fraud, id.

§ 1343, misuse of a government seal,9 id. § 1017, and conspiracy to




     8
       Defendants told Burris: "It's our backyard. Stay out of
Florida. We don't want to get shut down, and we damn sure don't
want the Attorney General from Florida . . . coming after us."
     9
       Only Godfrey and Fischer were charged with misusing a
government seal.

                                      -6-
commit these crimes, id. § 371.10        Burris and Kelly pleaded guilty

and testified against Godfrey and Fischer.         Nine of HOPE's victims

also testified.     After an eight-day trial, the jury convicted

Godfrey and Fischer on all counts.11        The district court sentenced

them each to 84 months in prison.

                             II.   Analysis

A.   Confrontation Clause Challenge

             At trial, the principal defense was that Godfrey and

Fischer did not know of their "rogue" employees' fraudulent sales

tactics.12   Countering   this   defense,    the   government   introduced

thirty-two emails from complaining customers addressed to either

Godfrey or Fischer, and six cease-and-desist letters addressed to


     10
       The indictment outlined HOPE's various material falsehoods,
including: (1) HOPE was affiliated with the homeowner's mortgage
lender; (2) the homeowner had been approved for a home loan
modification; (3) the homeowner would receive a specified reduction
in his or her monthly mortgage payment amount or interest rate; (4)
HOPE had a near perfect record of obtaining modification; (5) HOPE
was able to greatly increase the homeowner's chance of obtaining a
modification, in part because of its connections with mortgage
lenders; (6) homeowners could stop making mortgage payments while
they waited for HOPE to arrange their loan modification; (7) HOPE
operated as a non-profit entity; and (8) HOPE would refund the
customer's up-front fee if the modification were not successful.
     11
       Counts 6 and 15 were dismissed because the customer to whom
those counts related was unavailable to testify.
     12
        In the words of Godfrey's trial counsel: "Well, I'm not
going to tell you that the testifying customers were not defrauded.
. . . They were lied to, for sure, but who lied to them? Brian
Kelly lied to them. . . .     But there is no link between Chris
Godfrey and Dennis Fischer and those lies"; "this trial is a
misguided attempt . . . to hold the owners of a company criminally
responsible for the misdeeds of their employees."

                                   -7-
HOPE.        The district court admitted these communications for the

limited purpose of showing that Godfrey and Fischer had notice of

customers complaining about fraudulent activities.               The district

court        admitted   the   communications   without   redaction   and    gave

multiple limiting instructions.13


        13
        Specifically, the district court instructed                  the    jury
regarding the cease-and-desist letters as follows:

             Now, the letters from the state entities include
        certain allegations about what HOPE was doing that the
        entities say were not terrific.     These documents are
        being offered for the sole purpose of showing that there
        was notice to Mr. Godfrey and/or Mr. Fischer, that there
        were people who were complaining and there were these
        entities that were complaining.

             They cannot be used by you for the truth of what's
        contained in the letter. So . . . as a result of seeing
        these letters, you cannot determine that, in fact, . . .
        [the defendants] did wrong.

The court similarly instructed the jury regarding the customer
complaints:

             They're not in for whatever these people thought of
        HOPE or whatever else is going on. They're simply in
        evidence for the purpose of showing that there were
        complaints and that Mr. Godfrey and/or Mr. Fischer were
        recipients of some or all of these complaints. That's
        it.

And, as part of the             final   jury   charge,   the   district    court
instructed as follows:

             Note that there were certain exhibits . . . that
        were offered and admitted for a limited purpose. So, for
        example, there were a bunch of emails that contain some
        kind of complaint by somebody and those were offered into
        evidence and admitted for one purpose only, which is to
        show that the defendants had notice that people were
        unhappy. They cannot be used by you for the truth of
        what's contained in them.     That is, what is actually

                                        -8-
             Defendants argue that statements in the complaints and

cease-and-desist letters describing fraudulent activity by HOPE

employees were testimonial hearsay, and thus were submitted to the

jury--over    objection--in      violation    of    the   Sixth   Amendment's

Confrontation Clause.      The simple answer to this argument is that

these    exhibits   were   not   offered     to   prove   the   truth   of   the

assertions of wrongdoing contained within the exhibits.                 Rather,

they were offered to disprove the defendants' principal defense:

that they did not know what their employees were doing.                 Neither

the rules of evidence, see Fed. R. Evid. 801(c)(2), nor the

Confrontation Clause, Williams v. Illinois, 132 S. Ct. 2221, 2235,

2256, 2268 (2012), prohibits such a use.              See generally United

States v. Cruz-Díaz, 550 F.3d 169, 176 (1st Cir. 2008) ("Out-of-

court statements offered . . . for the limited purpose of showing

what effect the statement had on the listener . . . are not

hearsay.").

             But, say defendants, there was no need for the jury to

see the substance of the complaints. Of course there was. Because

the complaints described alleged fraudulent sales tactics, one can

infer that Godfrey and Fischer had notice that their employees were

likely engaged in such tactics.            Had the complaints and letters

claimed only that HOPE employees were unlawfully parking in a




        said[,] . . .   you cannot take that as the truth.

                                     -9-
neighbor's parking lot, the nexus to the proffered defense would

have been severed.

            Second, even were this a Confrontation Clause violation,

we would find it harmless beyond a reasonable doubt.                See United

States v. Cameron, 699 F.3d 621, 652 (1st Cir. 2012) (when deciding

whether violation was harmless, we consider whether "statements

were   merely   cumulative,"     "the       strength    of   corroborating   or

contradicting       evidence,"   and    the    case's    "overall    strength"

(internal quotation marks omitted)). There was no dispute at trial

that the company's employees made the fraudulent sales that we have

described and about which the customers and regulators complained.

So, even if the jury considered the complaints for the purpose of

showing that those customers were defrauded, nothing material would

have been added to the case.         The government's case, too, was not

merely strong; it was overwhelming.           The notion that, perched like

commanders in the bow of a Roman galley, Godfrey and Fischer had no

idea that their hired crew was systematically rowing the ship in

circles strikes us--as it undoubtedly struck a jury that took

little over three hours to find Godfrey and Fischer guilty--as

preposterous.

B.     Constructive Amendment Claim

            Under    the   rubrics     of   "constructive     amendment,"    and

"prejudicial variance," defendants merge two arguments.                 First,

they point out that one of the facts alleged in the indictment to


                                       -10-
show that HOPE did not operate as a nonprofit was a premature

assertion that the IRS had denied HOPE's "application for federal

non-profit       status."    In   fact,     the    IRS    did    not    deny       HOPE's

application for tax exempt status as a non-profit corporation until

two weeks after the indictment was issued (but before trial).14

Second, defendants complain that the government put into evidence

HOPE's application to the IRS, and it pointed out to the jury that

the    application    contained     false     statements,        such    as    a    gross

understatement of the defendants' salaries.

             Collectively,     argue      defendants,       the    error       in     the

indictment and the submission of the false application created a

constructive amendment in the form of a "pivot" from a charge that

defendants misled consumers about how HOPE operated into a charge

that defendants misled the IRS.           We review claims of constructive

amendment and prejudicial variance de novo.                      United States v.

Celestin, 612 F.3d 14, 24 (1st Cir. 2010) (constructive amendment);

United States v. Gomez, 716 F.3d 1, 7 (1st Cir. 2013) (prejudicial

variance).

             A    material   falsehood      must    be    proven    to    convict       a

defendant of mail or wire fraud.            See Neder v. United States, 527

U.S.    1,   25   (1999).     The    manner       and    means    section      of    the

indictment's conspiracy count outlined many of HOPE's material


       14
        The government did not object to amending the indictment
to remove that factually incorrect statement, but defendants
objected, so the court left matters alone.

                                       -11-
falsehoods.   See note 7, supra.    Those charged falsehoods included

the following: "HOPE operated as a non-profit entity."           The

indictment elaborated on that material falsehood as follows:

                 In an effort to portray HOPE as a
          legitimate entity whose goal was to help
          struggling homeowners, HOPE telemarketers
          repeatedly told potential customers that HOPE
          was a "non-profit."
                 In fact, HOPE had obtained its Florida
          non-profit      status    by     fraudulently
          misrepresenting its corporate purpose, as
          "Provide Consumers Education for purpose of
          managing         personal        debt."
                 Furthermore, HOPE did not operate as a
          legitimate non-profit entity.         The IRS
          recognized    this    and   rejected    HOPE's
          application for federal non-profit status.
          The IRS provided HOPE with a detailed analysis
          to support its conclusion that HOPE operated
          as a commercial entity. GODFREY and FISCHER
          used a substantial amount of money from HOPE's
          business accounts for personal expenses,
          including restaurant dining, fitness club
          memberships,   department   store   purchases,
          international travel, liquor store purchases,
          and swimming pool maintenance.

(emphasis added).

          The substance of that charged material falsehood--that

HOPE telemarketers falsely represented HOPE as a legitimate non-

profit entity--remained unaltered through trial and verdict.     The

jury instructions limited the jury precisely to these charges,

identifying phone calls and mailings to consumers as the wire and

mail communications, and identifying the consumers as the target of

fraudulent representations.   In short, the jury convicted Godfrey

and Fischer for precisely the mail and wire fraud for which they


                                   -12-
were charged. All that changed was that the government dropped one

piece of evidence (a pre-indictment IRS denial) cited to prove that

HOPE was not a legitimate nonprofit.

             A constructive amendment "occurs where the crime charged

has been altered, either literally or in effect, after the grand

jury last passed upon them."              United States v. Mubayyid, 658 F.3d

35, 49 (1st Cir. 2011) (internal quotation marks omitted).                        The

elimination       of   a   piece    of    evidence    supporting    the   material

falsehood, by contrast, was a mere variance.                       See id. at 48

(variance occurs when evidence offered at trial "proves facts

materially different from those alleged in the indictment").                      "In

short,     when   a    change     le[aves]    the    substance    of   the     charge

unaffected, the switch d[oes] not usurp the prerogative of the

grand jury."       United States v. Dowdell, 595 F.3d 50, 67–68 (1st

Cir. 2010) (alterations in original) (internal quotation marks

omitted).     A variance is grounds for reversal "if it affected the

defendant's       'substantial      rights'--i.e.,       the     rights   to     have

sufficient knowledge of the charge against him in order to prepare

an effective defense and avoid surprise at trial, and to prevent a

second prosecution for the same offense." United States v. Fisher,

3   F.3d   456,    463     (1st    Cir.    1993)    (internal    quotation      marks

omitted).15



      15
         A variance is also grounds for reversal if there is
"prejudicial spillover." Fisher, 3 F.3d at 463.

                                          -13-
            Here,     the       government        listed     eight    different

misrepresentations to support the mail and wire fraud charges. The

incorrect fact that the government dropped from its proof (a pre-

indictment IRS denial) served as just one fact supporting only one

of those eight misrepresentations, any one of which could have

supported conviction on the charged crime.                 The defendants would

have us lose sight of the forest by focusing on just one tree.              See

Mubayyid,   658     F.3d   at   53–54    (where    government    supplies   more

specificity than required, a change in that surplusage does not

affect the charge's substance); see also United States v. Miller,

471 U.S. 130, 136 (1985).         Nor did this drop in evidence put them

at any risk of double jeopardy, as the government never argued that

the jury should convict defendants for lying to the IRS (i.e., an

offense for which they were not charged).

            Nor, finally, was there any reason that the government

should have been precluded from putting the application itself into

evidence as relevant to the charged offense.                    The fact that

defendants felt it necessary to lie in describing their pay from

HOPE was directly relevant to proving their knowledge of the

material falsehood.

C.   Instructions on Misuse of Government Seal

            The jury convicted defendants of misuse of a government

seal under 18 U.S.C. § 1017.               In relevant part, the statute

criminalizes the use of a document to which a government seal has


                                        -14-
been fraudulently affixed where the user acts with knowledge of the

document's fraudulent character, and with wrongful or fraudulent

intent.16         In addressing the charged violation of this statute, the

district court instructed the jury that the government had to prove

three elements beyond a reasonable doubt to convict under 18 U.S.C.

§ 1017:

                  One,   that   the   defendant    procured   or
                  transferred a document to which was affixed
                  the seal of the Department of the Treasury.
                  Two, that the defendant knew that the seal had
                  been fraudulently affixed to the document;
                  and, three, that the defendant acted with a
                  fraudulent intent when he did that.

                  Defendants argue that this instruction was erroneous

because it failed to tell the jurors that they also needed to find

that the seal was fraudulently affixed to or impressed on the

document. We disagree. The charge as given efficiently made clear

that,        in   order   to   convict,   the    jurors   needed   to   find   that

defendants "knew that the seal had been fraudulently affixed to the


        16
              The statute states:

              Whoever fraudulently or wrongfully affixes or
        impresses the seal of any department or agency of the
        United States, to or upon any certificate, instrument,
        commission, document, or paper or with knowledge of its
        fraudulent character, with wrongful or fraudulent intent,
        uses , buys, procures, sells, or transfers to another any
        such certificate, instrument, commission, document, or
        paper, to which or upon which said seal has been so
        fraudulently affixed or impressed, shall be fined under
        this title or imprisoned not more than five years, or
        both.

18 U.S.C. § 1017 (emphasis added).

                                          -15-
document."     See 18 U.S.C. § 1017.       The jurors could not logically

make such a finding unless they also concluded that the seal was

indeed fraudulently affixed.         Such a conclusion was inevitable.

Each time one of the ersatz forms was printed onto a piece of

paper, the seal was affixed to the paper for a fraudulent purpose.

Defendants' use of the documents therefore plainly constituted that

which the statute on its face criminalizes:           "us[ing]" a "document

.    .     . to which or upon which [the] seal has been . . .

fraudulently affixed or impressed . . . ."            Id.; see also United

States v. Goodyke, 639 F.3d 869, 872 (8th Cir. 2011).

D.      Biased Juror Claim

             Defendants argue that the district court's denial of

their    request   to   remove   Juror   No.   7   deprived   them   of   their

constitutional guarantee to an impartial jury. On the fifth day of

trial, the government presented evidence that several of HOPE's

victims had received yellow postcards from HOPE.                Juror No. 7

subsequently approached the court clerk and revealed that she had

received a similar-looking mailer two or three years ago.                 When

asked at voir dire whether this prior experience caused her "any

feelings or biases or views about this case," Juror No. 7 replied,

"I don't know.     What do you think?"         After her response elicited

laughter in the courtroom, the district court followed up:

             Court:    No. The question is--I think the
             question he's asking is do you--will it affect
             your ability to decide this case fairly based
             on what you hear in the courthouse?

                                    -16-
          Juror No. 7:   I don't think so.  I mean, I
          didn't do anything with it. It didn't cause
          me any grief. I feel that I was probably a
          target.

          Court: Do you have any--did your remembering
          this in any way change your view of this case,
          such a view as you may have at this point?

          Juror No. 7:    I don't think so.


          Defendants claim that Juror No. 7 bore bias as a matter

of law and in fact.   They note that, prior to trial, the court had

excused   other   prospective   jurors   who   had   more   attenuated

connections with the facts of the case.    Defendants also make much

of the government's theory that defendants "specifically targeted

people who were at [a] very vulnerable time[] in their lives."

          We review the district court's ruling on a claim of juror

bias for clear abuse of discretion.      United States v. Lowe, 145

F.3d 45, 48 (1st Cir. 1998).    In assessing juror bias claims, "the

deference due to district courts is at its pinnacle: 'A trial

court's findings of juror impartiality may be overturned only for

manifest error.'"     Skilling v. United States, 561 U.S. 358, 396

(2010) (quoting Mu'Min v. Virginia, 500 U.S. 415, 428 (1991)).

That being said, the presence of even a single biased juror

requires reversal. See Parker v. Gladden, 385 U.S. 363, 366 (1966)

(defendant "was entitled to be tried by 12, not 9 or even 10,

impartial and unprejudiced jurors").




                                 -17-
             Juror No. 7 did not bear what we call "bias as a matter

of   law."     Bias   as   a   matter   of   law   is   reserved   for   only

"exceptional" or "extreme" circumstances. See, e.g., United States

v. Burgos-Montes, No. 13–2305, 2015 WL 2223304, at *12 (1st Cir.

2015); see also Smith v. Phillips, 455 U.S. 209, 222 (1982)

(O'Connor, J., concurring) (suggesting as exceptional situations

when the juror is an "employee of the prosecuting agency," or was

a "witness").    Mere receipt by a juror prior to trial of a similar

mailer, likely from another company, is simply not an extreme

situation warranting a finding of implied bias. Cf. Lowe, 145 F.3d

at 48–49 (no implied bias where juror in rape case was a survivor

of attempted rape).

             Nor did the district court abuse its discretion in

finding that the juror bore no bias in fact.            The juror's "[w]hat

do you think?" response was apparently flip, as noted by defense

counsel, and could certainly be read as expressing skepticism that

the receipt of a similar form or card could render her unable to

decide the case fairly.        Juror No. 7 subsequently said that the

yellow card did not cause her much grief.               She was asked point

blank a second time whether her prior experience affected her views

of the case, and she said, "I don't think so."            Compare Lowe, 145

F.3d at 49 (no abuse of discretion where juror said, "I don't think

so" in response to judge's question whether her prior experience as

survivor of attempted rape would affect her ability to serve on


                                    -18-
jury in rape case).      The record does not cause us to think the

district court's credibility finding here constituted a manifest

abuse of discretion.     Wainwright v. Witt, 469 U.S. 412, 428 (1985)

(juror credibility determinations are "peculiarly within a trial

judge's province.").17

                           III.   Conclusion

          We affirm Godfrey's and Fischer's convictions.




     17
        Although defendants do not make anything of it, more
potentially problematic was the exchange at the end of voir dire
when the district court asked yet again whether Juror No. 7 had any
"doubt but that you can fairly try this case."       Juror No. 7's
literal reply to that question was, "I believe so." The lack of
any reaction or comment by the trial judge or counsel suggests,
however, that everyone present understood her response to mean that
she could fairly try the case. Given the standard of review, there
is nothing in the record here to suggest the district court abused
its discretion.

     That being said, we are taken aback by the prosecution's
effort to cause us to think the literal record reads other than it
does. The actual transcript reads precisely as follows:

     Court: Do you have any doubt but that you can fairly try
     this case regardless of what the card may have said or
     what it said to you?

     Juror No. 7:   I believe so.

Rather than arguing that the exchange, in context, need not be read
literally, the prosecution in its brief edited its quote of the
transcript to read as follows: "Finally, the court asked whether
'you can fairly try this case . . . .'         The juror said she
'believe[d]' she could."

                                  -19-
