                   FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                    No. 02-50495
                Plaintiff-Appellee,             D.C. No.
               v.                          CR-01-00056-AHS-
LETANTIA BUSSELL,                                  02
             Defendant-Appellant.
                                        

UNITED STATES OF AMERICA,                     No. 02-50528
               Plaintiff-Appellant,
               v.                               D.C. No.
                                             CR-01-00056-AHS
LETANTIA BUSSELL,
                                                OPINION
              Defendant-Appellee.
                                        
        Appeal from the United States District Court
            for the Central District of California
       Alicemarie H. Stotler, District Judge, Presiding

                   Argued and Submitted
            August 6, 2004—Pasadena, California

                      Filed July 12, 2005

Before: John T. Noonan, Richard R. Clifton, Circuit Judges,
            and Jeremy Fogel, District Judge.*

                   Opinion by Judge Clifton

  *The Honorable Jeremy Fogel, United States District Judge for the
Northern District of California, sitting by designation.

                               8077
                   UNITED STATES v. BUSSELL               8081


                         COUNSEL

Shirley M. Hufstedler, Los Angeles, California; and Dan Mar-
malefsky, Los Angeles, California, for the defendant-
appellant-cross-appellee.

Ronald L. Cheng, Los Angeles, California; and Ranee A. Kat-
zenstein, Los Angeles, California, for the plaintiff-appellee-
cross-appellant.


                         OPINION

CLIFTON, Circuit Judge:

   Letantia and John Bussell, together with their former law-
yers, were charged with omitting assets from and making
false statements in their joint petition for Chapter 7 bank-
ruptcy relief. After the jury began its deliberations following
a lengthy trial, John fell to his death from his hotel room. In
accordance with the district court’s instruction, the jury con-
8082                UNITED STATES v. BUSSELL
tinued deliberations with respect to Letantia and ultimately
convicted her on six counts.

   Letantia here appeals her convictions, her sentence, and the
district court’s orders of restitution and costs. As to Letantia’s
convictions, we discern no reversible error and accordingly,
affirm. As to her sentence, which she appeals and the govern-
ment cross-appeals, we remand for further proceedings pursu-
ant to United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005)
(en banc). Finally, as to the district court’s orders of restitu-
tion and costs, we reverse and remand for reconsideration
consistent with this opinion.

I.   BACKGROUND

   After petitioning for and receiving Chapter 7 bankruptcy
relief in 1995, the Bussells were indicted in 2000 for omitting
from their joint bankruptcy petition their ownership of a four-
unit condominium located in Park City, Utah, and their inter-
ests in two corporations related to Letantia’s dermatology
practice. The charges relevant to the present appeal include
one count of conspiring to conceal assets in contemplation of
bankruptcy, to make false statements in relation to the bank-
ruptcy, and to conceal assets belonging to the bankruptcy
estate; three counts of concealing assets in bankruptcy; two
counts of making false statements in bankruptcy; one count of
making a false oath and account; and two counts of attempt-
ing to evade tax payments.

  Before trial, the Bussells moved to dismiss certain of the
charges on the ground that the questions posed by the bank-
ruptcy forms were fundamentally ambiguous. Their motion
was denied.

   Trial, which began on November 20, 2001, was hard-
fought and lengthy. The Bussells argued at trial that they had
acted in good faith and relied on the advice of their attorneys,
Jeffrey Sherman and Robert Beaudry. Both Sherman and
                       UNITED STATES v. BUSSELL                        8083
Beaudry entered into plea agreements with the government,
under which Sherman pleaded guilty to conspiracy and
attempted tax evasion, and Beaudry pleaded guilty to aiding
and abetting attempted tax evasion and the filing of false tax
returns.

   On February 5, 2002, after jury deliberations had begun,
John fell to his death from his hotel room.1 After being
instructed that the case against John was no longer before
them, the jury continued deliberations with respect to Letan-
tia. Letantia was ultimately convicted of six counts (one count
of conspiracy, two counts of concealment of assets, two
counts of making false statements, and one count of attempted
tax evasion), and acquitted of three (one count of concealment
of assets, one count of making a false oath and account, and
one count of attempted tax evasion).

   The district court sentenced Letantia to thirty-six months in
custody and ordered her to pay, in addition to a special assess-
ment and a fine, restitution totaling $2,393,527.00, for which
she was jointly and severally liable with attorneys Sherman
and Beaudry, and prosecution costs totaling $62,614.37.
Letantia timely appealed her conviction, her sentence, and the
district court’s orders of restitution and costs. The government
timely cross-appealed Letantia’s sentence.

II.    DISCUSSION

  A.    Death of the Codefendant

  After learning of John’s death, the district court expressed
concern that the jury was awaiting responses on two questions
regarding counts against John and was likely to hear of John’s
death through the media. The district court accordingly pro-
  1
    Outside the presence of the jury, the district court characterized John’s
death as a suicide, but Letantia argues that there is no evidence clearly
establishing that John took his own life. We need not resolve the question.
8084               UNITED STATES v. BUSSELL
posed the following version of Ninth Circuit Model Criminal
Jury Instruction 2.13:

    The case against codefendant John Bussell has been
    disposed of and is no longer before you. Do not
    guess or speculate as to the reason for the disposi-
    tion. The disposition should not influence your ver-
    dict with reference to the remaining defendant, and
    you must base your verdict solely on the evidence
    against the remaining defendant.

Absent objections from the government or defense counsel,
the district court transmitted the supplemental instruction to
the jury.

   After her conviction, Letantia moved for a new trial under
Federal Rule of Criminal Procedure 33, alleging that jurors
had engaged in misconduct by speculating that John had
pleaded guilty. She submitted the declaration of a private
investigator, who had learned from interviews of four jurors
that during deliberations, “jurors said to each other that per-
haps they were not to consider the charges as to John Bussell
because he had pleaded guilty in some sort of a plea bargain,
as had lawyers Sherman and Beaudry.” One of the jurors also
submitted a declaration to this effect.

   The district court denied the motion without an evidentiary
hearing. The court deemed the declarations inadmissible
under Federal Rule of Evidence 606(b), rejecting Letantia’s
argument that they fell within an exception which permits
jurors to testify regarding extraneous information improperly
brought to their attention. The court further concluded that
even if the declarations were admissible, any misconduct they
described was “entirely harmless, given the evidence in the
case.”

   On appeal, Letantia argues that the district court erred in
informing jurors that the case against John had been disposed
                   UNITED STATES v. BUSSELL                 8085
of, rather than informing them that he had died. She contends
that the incomplete information invited jurors to speculate that
John had pleaded guilty, as their attorneys had, and that the
prejudice from their speculation “spilled over” to her. She
also argues that the district court erred in denying her motion
for a new trial because the submitted declarations establish
that the jury in fact speculated that John had pleaded guilty.

    1.   Supplemental Jury Instruction

   We review the supplemental jury instruction for plain error
because Letantia raised no objection below. See United States
v. Stapleton, 293 F.3d 1111, 1118 n.3 (9th Cir. 2002).
“ ‘Under a plain error analysis, the court may reverse when
(1) there was actual error; (2) the error was plain (i.e. ‘clear’
or ‘obvious’); and (3) the error affected the defendant’s ‘sub-
stantial rights.’ ” United States v. Pimentel-Flores, 339 F.3d
959, 967 (9th Cir. 2003) (quoting United States v. Olano, 507
U.S. 725, 732 (1993)).

  [1] We have not previously addressed the dilemma pres-
ented when a codefendant dies during trial. We have, how-
ever, considered the dilemma presented when a codefendant
enters a guilty plea during trial. See United States v. Washa-
baugh, 442 F.2d 1127 (9th Cir. 1971); United States v. Jones,
425 F.2d 1048 (9th Cir. 1970). These cases offer useful guid-
ance.

   [2] In Washabaugh, we suggested that where a guilty plea
is entered late in trial by one of several closely identified
defendants, the best course may be simply to tell the jury that
the defendant is no longer part of the case. See 442 F.2d at
1129. There, a defendant changed his plea “[a]fter most of the
evidence was in.” Id. Although “all three defendants were
charged with the same crime in the same count and had
sought to escape conviction on the same ground,” the district
court informed the jury of the changed plea. Id. We observed
that while informing the jury was not erroneous, “given the
8086               UNITED STATES v. BUSSELL
close identification of the defendants with one another in the
Dyer Act count and the lateness in the trial, it might have
been better simply to tell the jury that [the defendant] was to
be considered no longer a defendant in the case and that his
guilt or innocence should play no part in future deliberations.”
Id.; accord 9th Cir. Model Crim. Jury Instr. 2.13.

   [3] Here, as in Washabaugh, “close identification” between
the defendants and “lateness in the trial” were pressing con-
cerns. With the exception of a single count brought against
her only, Letantia was charged with the same crimes in the
same counts as John, and she asserted similar, if not identical,
defenses of good faith and reliance on the advice of counsel.
Cf. 442 F.2d at 1129. In addition, John died during jury delib-
erations. Under these circumstances, where news of John’s
death might have influenced the ongoing deliberations con-
cerning Letantia, the district court adopted precisely what we
have suggested might be the “better” approach: simply
informing the jury that John was no longer a defendant in the
case. Id.

   We acknowledge, however, that Letantia’s contrary posi-
tion is not without support. In Jones, we concluded that the
district court did not plainly err in informing the jury, in a
“plain and nonargumentative statement,” that three of the
defendants were not being tried because they had changed
their pleas to guilty. 425 F.2d at 1053. We observed:

    If no explanation is made to a jury of why certain
    defendants, originally in a criminal case, are no lon-
    ger participants at the trial, the jury is full of curios-
    ity, conjecture and surmise. Most experienced trial
    judges think the best, safest and fairest procedure to
    all is a simple and honest statement to the jury as to
    why codefendants are no longer such.

Id. Jones, then, suggests that a “simple and honest” statement
that John had died may have been preferable.
                    UNITED STATES v. BUSSELL                 8087
   [4] Still, we are not persuaded that the district court’s deci-
sion not to provide such an explanation amounted to clear or
obvious error. First, Jones involved guilty pleas entered early
in the trial: one plea was entered before the jury was empan-
eled and two others were entered after the government made
its opening statement. 425 F.2d at 1053. Washabaugh sug-
gests that where “lateness in the trial” is a concern, the “bet-
ter” approach may be simply to tell the jury that the defendant
is no longer a part of the case. 442 F.2d at 1129. Second, as
noted above, neither Jones nor Washabaugh involved the spe-
cific situation presented here. Finally, Letantia maintains that
the supplemental instruction was erroneous because it invited
jurors to speculate that John pleaded guilty. Yet Jones held
that it was not plainly erroneous to advise the jury that a code-
fendant had in fact entered a guilty plea. 442 F.2d at 1053-54.
It follows, then, that advising the jury in a way that might
have permitted speculation regarding a guilty plea also was
not plainly erroneous.

    2.   Motion for New Trial

   Of course, Letantia’s motion for a new trial went farther,
alleging not only that the supplemental jury instruction per-
mitted speculation, but also that jurors did in fact speculate.
She maintains on appeal that the jurors’ speculation consti-
tuted prejudicial extrinsic evidence. We review the district
court’s denial of a new trial and its decision not to hold an
evidentiary hearing for abuse of discretion. United States v.
Mills, 280 F.3d 915, 921 (9th Cir. 2002); United States v.
Saya, 247 F.3d 929, 934, 937 (9th Cir. 2001).

   [5] We turn at the outset to the admissibility of the submit-
ted declarations. See United States v. Maree, 934 F.2d 196,
201 (9th Cir. 1991). Under Federal Rule of Evidence 606(b):

    [A] juror may not testify as to any matter or state-
    ment occurring during the course of the jury’s delib-
    erations or to the effect of anything upon that or any
8088               UNITED STATES v. BUSSELL
    other juror’s mind or emotions as influencing the
    juror to assent to or dissent from the verdict or
    indictment or concerning the juror’s mental pro-
    cesses in connection therewith, except that a juror
    may testify on the question whether extraneous prej-
    udicial information was improperly brought to the
    jury’s attention or whether any outside influence was
    improperly brought to bear upon any juror.

We do not view the jurors’ speculation as “extraneous preju-
dicial information.” Significantly, the alleged source of the
speculation — the district court’s supplemental instruction —
was not extraneous: “It did not enter the jury room through an
external, prohibited route,” but rather “was part of the trial.”
Compare United States v. Rodriquez, 116 F.3d 1225, 1227
(8th Cir. 1997) (rejecting the argument that the defendant’s
failure to testify was extraneous information because “[i]t was
part of the trial”) with United States v. Keating, 147 F.3d 895,
903 (9th Cir. 1998) (describing the defendant’s prior convic-
tion as extrinsic evidence because it was “entirely new and
inadmissible”); see also United States v. Bagnariol, 665 F.2d
877, 886 (9th Cir. 1981) (discussing United States v. Bassler,
651 F.2d 600, 602 (8th Cir. 1981), in which a juror’s notes,
which described only what she heard at trial, were found “in-
trinsic to the deliberations”). The speculation allegedly trig-
gered by the instruction was the product of normal human
curiosity, part of the “general knowledge, opinions, feelings,
and bias” which we have “carefully distinguished” from
“[t]he type of after-acquired information that potentially taints
a jury verdict.” Hard v. Burlington N. R.R. Co., 870 F.2d
1454, 1461 (9th Cir. 1989). Accordingly, like the district
court, we conclude that the submitted declarations are inad-
missible under Rule 606(b).

   Moreover, even if admissible, the declarations would not
warrant a new trial (or an evidentiary hearing, see Hard, 812
F.2d at 486) unless there was “ ‘a reasonable possibility that
the extrinsic material could have affected the verdict.’ ” Keat-
                   UNITED STATES v. BUSSELL                 8089
ing, 147 F.3d at 900 (quoting Dickson v. Sullivan, 849 F.2d
403, 405 (9th Cir. 1988)). Although our review of the impact
of extrinsic material “ ‘is an independent one,’ ” id. (quoting
Dickson, 849 F.2d at 405), we “ ‘must accord special defer-
ence to the trial judge’s impression.’ ” Mills, 280 F.3d at 921
(quoting United States v. Hanley, 190 F.3d 1017, 1031 (9th
Cir. 1999)). As we have acknowledged, the trial judge, who
“observes the jurors throughout the trial” and hears the evi-
dence and defenses, “is uniquely qualified to appraise the
probable effect of information on the jury, the materiality of
the extraneous material, and its prejudicial nature.” United
States v. Bagnariol, 665 F.2d 877, 885 (9th Cir. 1981).

   Here, the district court deemed the jurors’ alleged specula-
tion harmless. We agree. As described above, we do not
believe that the material “ ‘actually received’ ” by the jury
was extrinsic. Keating, 147 F.3d at 902 (quoting Dickson, 849
F.2d at 406). In addition, the speculation was “ambiguously
phrased” — according to the investigator’s declaration, jurors
said “perhaps they were not to consider the charges as to John
Bussell because he had pleaded guilty” (emphasis added) —
and the district court gave an express instruction that the dis-
position of the charges against John “should not influence
[the] verdict with reference to the remaining defendant.” See
Jeffries v. Wood, 114 F.3d 1484, at 1491-92 (9th Cir. 1997),
overruled on other grounds by Lindh v. Murphy, 521 U.S. 320
(1997). Both facts suggest that the potential prejudice of spec-
ulation was “diminished.” Id. at 1491. Finally, we note that
with respect to the charges brought jointly against Letantia
and John, the jury found Letantia guilty on certain counts, but
not guilty on others, indicating that it took care to distinguish
the defendants and to render an impartial verdict. See United
States v. Gaggi, 811 F.2d 47, 53 (2d Cir. 1987). For these rea-
sons, we conclude that the district court did not abuse its dis-
cretion in denying the motion for a new trial or in declining
to hold an evidentiary hearing.
8090               UNITED STATES v. BUSSELL
  B.   Ambiguity of the Bankruptcy Forms

   Approximately two years before declaring bankruptcy,
Letantia began operating her dermatology practice through
three corporations: BBL Medical Management, Inc.; Beverly
Hills Dermatology Medical Corp.; and L.B. Bussell, Medical,
Inc. The first corporation, BBL Medical, received all of the
practice’s income, paid all of its expenses, and retained all of
its profits. The Bussells transferred between ten and twenty
percent of BBL Medical’s profits through the second corpora-
tion, Beverly Hills Dermatology, to the third corporation, L.B.
Bussell, which then paid Letantia an artificially reduced sal-
ary. BBL Medical and Beverly Hills Dermatology were held
in the names of “nominee” shareholders and officers,
described in the indictment as persons who are enlisted to
serve as owners or officers of public record but have “no gen-
uine ownership interest or actual managerial authority.” L.B.
Bussell, in contrast, was held in Letantia’s name.

   In petitioning for bankruptcy relief, the Bussells responded
to a number of questions regarding their personal property
and financial affairs. At issue here are question 12 of the
Schedule of Personal Property, which asked them to list
“[s]tock and interests in incorporated and unincorporated
businesses,” and question 16(a) of the Statement of Financial
Affairs, which asked them to list all businesses in which they
were an “officer, director, partner, or managing executive.”
The Bussells did not identify BBL Medical or Beverly Hills
Dermatology in response to either question.

   Before trial, the Bussells moved to dismiss or strike the
allegations based on these questions, arguing that the terms
“interests” and “managing executive” are fundamentally
ambiguous. The district court denied the motion, characteriz-
ing the existence of ambiguity as “a jury question.” Letantia
reasserted this argument in a post-conviction motion for judg-
ment of acquittal, but that motion was also denied.
                   UNITED STATES v. BUSSELL                 8091
   On appeal, Letantia continues to argue that questions 12
and 16(a) are fundamentally ambiguous. From this argument,
she draws several conclusions: First, because the questions
are fundamentally ambiguous, her answers may not form the
basis of a prosecution for false statements. See United States
v. Culliton, 328 F.3d 1074, 1078 (9th Cir. 2003). Second,
absent her answers to these questions, there was insufficient
evidence to sustain her convictions on counts five and six of
the indictment. Third, given the ambiguity of questions 12
and 16(a), she was entitled to jury instructions supporting her
defense that the questions did not clearly call for identifica-
tion of BBL Medical or Beverly Hills Dermatology. We
address these conclusions in turn.

    1.   Improper Basis for Prosecution

   We have not previously defined the standard of review for
the dismissal of false statement charges based on fundamental
ambiguity. Id. at 1078. We need not do so here because we
would affirm the determination of the district court even
under de novo review. See id.

   [6] The answer to a “fundamentally ambiguous” question
“may not, as matter of law, form the basis of a prosecution for
perjury or false statement.” Culliton, 328 F.3d at 1078. But
we do not invalidate a conviction “simply because the ques-
tioner and respondent might have different interpretations” of
the relevant questions. Id. at 1079. Rather, we examine the
context of the question and answers, as well as other extrinsic
evidence, to determine whether the respondent provided false
answers to the questions “as he understood [them].” Id.

   [7] The context of question 12 indicates that Letantia
understood the question and provided a response that was
false in light of her understanding. As an initial matter, we
note that the term “interests” appeared in several of the ques-
tions surrounding question 12. Question 9 asked for
“[i]nterests in insurance policies,” question 11 for “[i]nterests
8092               UNITED STATES v. BUSSELL
in IRA, ERISA, Keogh, or other pension or profit sharing
plans,” and question 13 for “[i]nterests in partnerships or joint
ventures.” The fact that Letantia answered each of these ques-
tions accurately suggests that she understood the term.

   In addition, question 33 asked for “[o]ther personal prop-
erty of any kind not already listed.” Accordingly, if Letantia
did not understand her associations with BBL Medical and
Beverly Hills Dermatology to constitute “interests” under the
specific terms of question 12, she had the option to disclose
them as “other personal property” under the broad terms of
question 33. See Culliton, 328 F.3d at 1079 (rejecting a claim
that questions were fundamentally ambiguous because a
respondent who “might feel compelled” to provide unreason-
able responses had the “option of explaining his or her
answers in a separate space provided on the Form”). But she
instead responded “[n]one.” Her failure to identify the more
profitable of the three corporations — in response to either
question — belies her present contention that she made an
honest but unsuccessful attempt to understand and respond to
question 12.

   We reach a similar conclusion with regard to question
16(a), which broadly referred to corporations in which the
debtors were an “officer, director, partner, or managing exec-
utive.” When the Bussells organized BBL Medical and Bev-
erly Hills Dermatology, they approached an employee and a
personal friend to serve as owners. Yet the owner and presi-
dent of BBL Medical, the bookkeeper for Letantia’s medical
practice, served in those capacities in name only. She testified
that the Bussells, not she, oversaw the corporation’s opera-
tions, including managing its bank accounts, paying its
expenses, and controlling its profits. The Bussells in this way
played significant roles in operating BBL Medical, but never-
theless omitted it from their response to the broad inquiry
posed by question 16(a).

  [8] Moreover, even without regard to BBL Medical and
Beverly Hills Dermatology, the Bussells failed to disclose that
                   UNITED STATES v. BUSSELL                8093
Letantia was the officer of record for L.B. Bussell. That the
Bussells did not disclose any of their corporate associations
— even those which clearly fell within the scope of the ques-
tion — undermines Letantia’s assertion that she attempted to
provide a truthful response, but failed to do so because she
could not understand the term “managing executive.”

    2.   Insufficient Evidence

   [9] We also reject Letantia’s claim that there was insuffi-
cient evidence to sustain her convictions on counts five and
six of the indictment. Counts five and six alleged that the Bus-
sells knowingly and fraudulently made false statements by,
among other things, failing to disclose that they held interests
in and were managing executives of BBL Medical and Bev-
erly Hills Dermatology. As described above, we conclude that
a rational trier of fact could have found that Letantia under-
stood the questions concerning interests and managing execu-
tives and provided false answers to these questions as “[s]he
understood [them].” Culliton, 328 F.3d at 1079. Because we
find Letantia’s responses to questions 12 and 16(a) sufficient
to sustain her convictions on counts 5 and 6, we need not
address her additional claim that there was insufficient evi-
dence to support the counts’ other allegations. See Griffin v.
United States, 502 U.S. 46, 56-57 (1991) (“ ‘[W]hen a jury
returns a guilty verdict on an indictment charging several acts
in the conjunctive, . . . the verdict stands if the evidence is
sufficient with respect to any one of the acts charged.’ ”
(quoting Turner v. United States, 396 U.S. 398 (1970)) (first
alteration in original)).

    3.   Jury Instructions

   Letantia maintains that she was entitled to several proposed
jury instructions which supported her defense that she did not
understand the bankruptcy forms to require disclosure of the
omitted information. Specifically, her proposed instructions
would have highlighted that the bankruptcy forms left certain
8094               UNITED STATES v. BUSSELL
key terms undefined, that a corporation is distinct from its
shareholders, and that a shareholder’s “interest” in a corpora-
tion does not extend to its assets or income.

   We review jury instructions de novo to determine whether
they adequately presented the defendant’s theory of the case.
United States v. Dixon, 201 F.3d 1223, 1230 (9th Cir. 2000).
But because “a defendant is not entitled to any particular
form” of instructions, we review their precise formulation for
abuse of discretion only. Id. at 1230-31.

   We conclude that the district court’s instructions ade-
quately presented Letantia’s defense that she interpreted the
bankruptcy forms in good faith. In its lengthy instruction on
the subject, the district court informed the jury that good faith
was a “complete defense to each of [the bankruptcy-related]
charges. The court explained that a person who acted in good
faith — that is, based “on a belief or opinion honestly held”
— was “not punishable under these statutes merely because
the belief or opinion turn[ed] out to be inaccurate, incorrect,
or wrong.” Criminal punishment was instead reserved for
“those people who knowingly defraud or attempt to defraud.”

   Given these statements, which adequately presented Letan-
tia’s good-faith defense, we cannot say that the district court
abused its discretion in rejecting the additional instructions.
See United States v. Sarno, 73 F.3d 1470, 1485 (9th Cir.
1995). Although, as Letantia urges, the additional instructions
might have supported the honesty of her beliefs, “[a] defen-
dant may not draw upon the right to present a ‘theory of the
case’ to compel a certain resolution to a disputed question of
fact.” United States v. Sarno, 73 F.3d 1470, 1485 (9th Cir.
1995); accord United States v. Felix-Gutierrez, 940 F.2d
1200, 1211 (9th Cir. 1991).

  C.   Prior Bad Acts of Bankruptcy Counsel

  In a declaration made shortly after he entered into his plea
agreement, the Bussells’ former lawyer, Robert Beaudry,
                   UNITED STATES v. BUSSELL                 8095
stated that he and Jeffrey Sherman had advised not only the
Bussells, but also three other clients in “implement[ing]
essentially this same structure . . . in furtherance of similar
bankruptcy and tax fraud schemes.” The Bussells argued
before the district court that testimony regarding these prior
bad acts would establish that Beaudry and Sherman assured
other clients that their fraudulent schemes were entirely legal,
buttressing the Bussells’ defense that Beaudry and Sherman
provided them with similar assurances. In support of their
motion, they submitted the declaration of John’s defense law-
yer, who had interviewed two of Beaudry’s former clients and
discovered that they believed his work to be “100% legiti-
mate” and completely “above board.” Beaudry’s defense law-
yer, however, revealed that Beaudry had performed acts for
these clients “which could conceivably be the basis of
impeachment . . . under Rule 608(b) of the Federal Rules of
Evidence.”

   The district court granted the government’s pre-trial motion
to exclude the proffered testimony, finding in part that its pro-
bative value was substantially outweighed by the dangers of
confusing the issues and delaying the trial. See Fed. R. Evid.
403. The district court reasoned that the testimony would indi-
cate the alleged pattern only if Beaudry’s other clients were
in fact “innocent dupes.” Yet determining the clients’ inno-
cence would require a potentially confusing and time-
consuming “trial within a trial.”

   Letantia contends on appeal that no such trial was neces-
sary because she intended to show only that Beaudry and
Sherman had a pattern of advising clients that their advice
was legal. This showing, she maintains, would have required
only brief testimony by Beaudry’s former clients.

  We review the evidentiary ruling for abuse of discretion,
according “ ‘considerable deference’ ” to the district court’s
determination under Rule 403. United States v. Hankey, 203
F.3d 1160, 1166-67 (9th Cir. 2000) (quoting United States v.
8096                UNITED STATES v. BUSSELL
Cordoba, 194 F.3d 1053 (9th Cir. 1999)). Further, because the
alleged error is nonconstitutional, an abuse of discretion
would warrant reversal only if it “ ‘more likely than not
affected the verdict.’ ” Id. at 1167 (quoting United States v.
Ramirez, 176 F.3d 1179, 1182 (9th Cir. 1999)).

   [10] Mindful that “ ‘[t]he Rule 403 weighing process . . .
is primarily for the district court to perform,’ ” we conclude
that the district court did not abuse its discretion. See Cor-
doba, 194 F.3d at 1063 (quoting United States v. Layton, 767
F.2d 549, 553 (9th Cir. 1985)). Though defense counsel might
have limited the testimony to the advice received by Beau-
dry’s former clients, their knowledge (or lack thereof) would
nevertheless have remained relevant. Indeed, even limited tes-
timony by Beaudry’s former clients would have prompted
rebuttal by the government intended to establish that the cli-
ents were willing coconspirators rather than “innocent dupes.”
If the government succeeded, the pattern established by the
testimony would have bolstered not the defense’s theory, but
the government’s — that is, that Sherman and Beaudry had a
practice of conspiring with clients in executing fraudulent
bankruptcy and tax schemes. For these reasons, we cannot say
that the district court abused its discretion in determining that
a trial within a trial would be required, or that a trial regarding
unrelated clients involved in unrelated schemes posed a
potential for confusion and delay that substantially out-
weighed the probative value of the evidence.

   Moreover, even if the district court had abused its discre-
tion, its error would not warrant reversal. Significantly,
although defense counsel were not permitted to introduce
extrinsic evidence of the alleged prior acts, they were permit-
ted to reference the acts during cross-examination. In
response to such questioning, Beaudry admitted that he had
structured fraudulent schemes for “four, five, six and maybe
more” clients, but told only “one or two” that the schemes
were illegal:
                      UNITED STATES v. BUSSELL            8097
    Q:     And the others you didn’t?

    A:     That’s correct.

Through cross-examination, then, defense counsel established
the precise pattern of misleading advice that the Bussells
sought to establish through extrinsic evidence. Accordingly,
we are not persuaded that exclusion of the extrinsic evidence
more likely than not affected the verdict.

   Evidence that jurors stated that they “wished [they] had
heard testimony . . . from prior clients” does not change our
conclusion. Rather, such evidence is, as described above,
inadmissible under Rule 606(b) as testimony regarding “state-
ment[s] occurring during the course of the jury’s delibera-
tions.” Fed. R. Evid. 606(b).

  D.     Sentencing

   Following her conviction, Letantia was sentenced to thirty-
six months in custody (comprising six concurrent terms —
one for each count of conviction — of thirty-six months each)
and three years of supervised release. Both the government
and Letantia assert errors in sentencing. For one, Letantia
maintains that the application of enhancements under the Sen-
tencing Guidelines was inconsistent with the Sixth Amend-
ment because they were imposed under then-mandatory
guidelines on the basis of facts neither admitted by her nor
proved to a jury beyond a reasonable doubt. See United States
v. Booker, 125 S. Ct. 738, 756-57 (2005).

   [11] Because Letantia did not raise a Sixth Amendment
objection below, we review the district court’s application of
the Sentencing Guidelines for plain error. See Booker, 126
S. Ct. at 769. Our review leads us to the same “dead end”
reached in Ameline: “[I]t is not possible to reliably determine
from the record whether the sentence imposed would have
been materially different had the district court known that the
8098               UNITED STATES v. BUSSELL
Guidelines were advisory . . . .” Id. at 1084. We accordingly
remand to the district court to answer that question and to pro-
ceed accordingly pursuant to Ameline.

  E.   Restitution and Costs

   Letantia was also ordered to pay, in addition to a special
assessment and a fine, restitution totaling $2,393,527.00, for
which she was jointly and severally liable with attorneys
Sherman and Beaudry, and prosecution costs totaling
$62,614.37. Letantia maintains that the district court erred
with respect to both orders. She notes that the district court
ordered restitution in an amount that, aside from an adjust-
ment for a settled debt, was equal to intended, rather than
actual, loss. See 18 U.S.C. § 3663. In addition, the district
court ordered her to pay the costs of prosecution in their
entirety, without regard to whether they were reasonable and
necessary to prosecuting the counts on which she was con-
victed. See 26 U.S.C. § 7201.

   In contrast to its application of the Sentencing Guidelines,
the district court’s orders of restitution and costs are unaf-
fected by the changes worked by Booker. See United States
v. DeGeorge, 380 F.3d 1203, 1221 (9th Cir. 2004); cf. United
States v. Chavez, 627 F.2d 953, 957 (9th Cir. 1980) (“The
presence of the mandatory costs of prosecution provision [in
26 U.S.C. § 7203] does not, with any degree of certainty, sub-
stantially increase the threatened punishment.”). We review
the legality of the orders de novo. See United States v. Gor-
don, 393 F.3d 1044, 1051 (9th Cir. 2004); United States v.
Fowler, 794 F.2d 1446, 1449 (9th Cir. 1986).

   [12] Under the Victim and Witness Protection Act, the stat-
ute that governs orders of restitution for offenses committed
prior to 1996, a district court’s authority to order restitution
is subject to several conditions. United States v. Woodley, 9
F.3d 774, 780 (9th Cir. 1993). Among these is the require-
ment that the amount of restitution be “limited by the victim’s
                    UNITED STATES v. BUSSELL                 8099
actual losses.” Id. The district court, however, ordered restitu-
tion in an amount that, but for an adjustment for a settled debt,
was equal to the amount of intended losses. We therefore
vacate the order of restitution and remand to the district court
to determine the actual losses caused by Letantia’s fraudulent
conduct — that is, to compare “what actually happened with
what would have happened if [she] had acted lawfully.” See
United States v. Feldman, 338 F.3d 212, 220-21 (3d Cir.
2003).

   [13] We must also vacate and remand the order imposing
the costs of prosecution. Under 26 U.S.C. § 7201, “[t]he gov-
ernment may only recover costs associated with a successful
prosecution.” Cf. Fowler, 794 F.2d at 1449 (interpreting the
analogous costs provision of 26 U.S.C. § 7206). As such, the
government cannot assess against a defendant costs associated
exclusively with the counts on which he was acquitted. Cf. id.
Because the district court declined to allocate costs among
counts (opting instead to assess them in their entirety), we
cannot be certain that it excluded any costs associated exclu-
sively with the counts on which Letantia was acquitted. We
accordingly vacate and remand the order with instructions to
exclude any such costs.

III.   CONCLUSION

   For the foregoing reasons, we affirm as to Letantia’s con-
victions. As to her sentence, however, we remand pursuant to
Ameline. Finally, as to the district court’s orders of restitution
and costs, we vacate and remand for reconsideration.

 AFFIRMED IN PART, VACATED IN PART, and
REMANDED.
