                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                
               Plaintiff-Appellant,             No. 04-50425
               v.                                D.C. No.
CHARLY SION HAGEGE,                           CR-03-00965-FMC
              Defendant-Appellee.
                                         

UNITED STATES OF AMERICA,                      No. 04-50427
                Plaintiff-Appellee,
               v.                                D.C. No.
                                              CR-03-00965-FMC
CHARLY SION HAGEGE,
                                                  OPINION
            Defendant-Appellant.
                                         
        Appeal from the United States District Court
            for the Central District of California
      Florence Marie Cooper, District Judge, Presiding

                  Argued and Submitted
           December 6, 2005—Pasadena, California

                    Filed February 22, 2006

      Before: Harry Pregerson, Robert E. Cowen,* and
             Sidney R. Thomas, Circuit Judges.

                    Opinion by Judge Cowen

   *The Honorable Robert E. Cowen, Senior United States Circuit Judge
for the Third Circuit, sitting by designation.

                               1827
                  UNITED STATES v. HAGEGE              1831


                        COUNSEL

Elana Shavit Artson, Assistant United States Attorney, Los
Angeles, for the plaintiff/appellant/appellee.

Stanley L. Friedman, Esq., Los Angeles, for the defendant/
appellee/appellant.


                        OPINION

COWEN, Circuit Judge:

  The United States appeals the district court’s sentence of
Charly Sion Hagege for bankruptcy fraud and false represen-
1832                UNITED STATES v. HAGEGE
tation of a social security number. The government argues
that the district court committed error in refusing to increase
Hagege’s sentence on the basis of judicially-found facts.
Hagege cross-appeals his conviction based on the following
grounds: (1) the district court erred in denying Hagege’s
motion for an evidentiary hearing on the issue of whether the
prosecutor intentionally provoked Hagege into moving for a
mistrial; (2) the district court erred in denying Hagege’s
motion to dismiss count one of the indictment based upon the
statute of limitations; (3) the district court’s admission of for-
eign bank records violated the Confrontation Clause of the
Sixth Amendment; and (4) the district court erred in denying
Hagege’s motion for a mistrial as to the second trial based
upon the district court’s reference to a jury instruction relating
to prior convictions. For the reasons given below, we will
affirm the conviction, vacate the sentence, and remand the
case for further proceedings in light of United States v.
Booker, 543 U.S. 220, 125 S. Ct. 738 (2005).

                                I.

   On September 24, 2003, Hagege was named in a four-count
indictment charging him with making a false declaration in
bankruptcy, in violation of 18 U.S.C. § 152(3) (count one),
concealment of assets in bankruptcy, in violation of 18 U.S.C.
§ 152(1) (count two), and false representation of a social
security number, in violation of 18 U.S.C. § 408(a)(7)(B)
(counts three and four). Count one of the indictment alleges
that Hagege made a false declaration in bankruptcy on or
about January 27, 1998. Absent any suspension period, the
five-year statute of limitations applicable to count one would
have expired on January 27, 2003, approximately eight
months before the indictment was filed.

   On September 26, 2002, the government moved for a sus-
pension of the statute of limitations, pursuant to 18 U.S.C.
§ 3292, in order to obtain foreign evidence from Israel. In the
motion, the government requested that the suspension period
                      UNITED STATES v. HAGEGE                     1833
begin on March 21, 2002, the date of its official Request for
Assistance pursuant to the Treaty of Mutual Legal Assistance
in Criminal Matters (“MLAT”) to Israel. In an order dated
September 30, 2002, the district court granted the motion and
suspended the statute of limitations from March 21, 2002
“until final action is taken by Israel on the government’s
request for assistance, provided that this period of suspension
may not exceed three years.” (AER1 at 245.)

   The MLAT request sought production of records of bank
accounts in Israel in the name of Hagege for the period from
January 1, 1994 to the present. With regard to certification of
the authenticity of the records, the MLAT request provided,
in relevant part, as follows:

      In order to obtain the evidence sought as quickly as
      possible for use in the pending investigation, the
      United States will at this time accept the evidence
      sought without execution of the certifications
      enclosed at the end of this request (the certifications
      are required for the use of the evidence at trial, but
      are not required for investigative purposes). Thereaf-
      ter, when the time for trial in the United States
      approaches, the United States requests that some or
      all of the non-certified evidence be resent to the
      United States in certified form as the evidence can-
      not be admitted in court in the U.S. without these
      certifications.

(AER at 198.)

    On June 18, 2002 and June 21, 2002, the Israeli govern-
ment received two batches of uncertified bank records which
it forwarded to the U.S. government in response to the MLAT
request. In a follow-up letter dated July 18, 2002, which iden-
  1
   Citation to “AER” refers to the Cross-Appellant’s Excerpts of Record.
Citation to “GER” refers to the Government’s Excerpts of Record.
1834               UNITED STATES v. HAGEGE
tified “MLAT request - Hagege” as the subject of the letter,
the Israeli government stated, “[t]he above captioned request
was executed.” (AER at 332.) The July 18, 2002 letter also
stated, “in the future, should you need certified copies of the
bank statements please let me know.” (AER at 332.)

   Thrice between March 2003 and early December 2003, the
U.S. government requested the Israeli government to produce
a certificate of authenticity pertaining to the documents it had
already sent, as well as additional documents responsive to
the MLAT request. On December 18, 2003, the Israeli gov-
ernment produced the requested certificate of authenticity via
facsimile. On or about the same date, the Israeli government
informed the U.S. government that Bank Hapoalim possessed
additional documents relating to six accounts held by Hagege,
which had not been previously produced due to an oversight.
On December 23, 2003, the U.S. government received the
additional documents.

   On December 29, 2003, Hagege moved to dismiss the false
declaration charge in count one of the indictment based on the
statute of limitations. Hagege argued that the Israeli govern-
ment took “final action” on the March 21, 2002 request when
the Israeli authorities first produced documents responsive to
the request in June 2002. Hagege contended that the MLAT
request did not contain a request for certification. At most,
Hagege argued, the suspension period lasted six months pur-
suant to 18 U.S.C. § 3292(c)(2). Adding a six-month suspen-
sion period to the five-year statute of limitations, Hagege
contended that the statute of limitations expired, at the latest,
on July 27, 2003. Since the indictment was filed two months
later on September 24, 2003, Hagege argued that count one of
the indictment was untimely.

   In opposition to the motion, the government contended that
“final action” was not taken by the Israeli government on the
MLAT request until December 2003, when the Israeli govern-
ment produced the certificate of authenticity and the addi-
                   UNITED STATES v. HAGEGE                 1835
tional responsive documents. The government argued that the
statute of limitations was therefore suspended from March 21,
2002 until December 2003. Therefore, the government pos-
ited, the statute of limitations was suspended when count one
of the indictment was filed on September 24, 2003.

   The district court agreed with the government and denied
the motion to dismiss. Rejecting Hagege’s reading of the
MLAT request as “too narrow[ ],” the district court found that
the MLAT request included a request for certification. The
district court found that the Israeli government did not pro-
duce the certification or the requested documents until
December 2003, and, therefore, that “final action” did not
occur until December 2003. For these reasons, the district
court concluded that count one of the indictment was not
time-barred.

   On December 22, 2003, prior to the start of trial, the gov-
ernment moved for an order ruling that foreign records
obtained from banks in Luxembourg and Israel would be
admitted pursuant to 18 U.S.C. § 3505, based upon certifi-
cates of authenticity. Hagege opposed the motion based upon
several arguments, including the argument that the business
records constituted inadmissible hearsay. Hagege did not
directly challenge the admission of the bank records based
upon a violation of the Confrontation Clause. However, the
government raised the issue of whether the admission of the
records violated the Confrontation Clause in its reply memo-
randum. With the exception of some documents excluded as
irrelevant, the district court permitted the admission of the
foreign bank records under § 3505.

   Trial commenced on January 15, 2004. During trial, pursu-
ant to the district court’s ruling under § 3505, the government
introduced the foreign bank records into evidence, but not the
certificates of authenticity.

   On the third day of trial, the district court declared a mis-
trial after a government witness, Anthony Keats, testified that
1836               UNITED STATES v. HAGEGE
Hagege was involved in a pornography business. The govern-
ment had proffered that Keats, a lawyer who had represented
Polo Ralph Lauren Corporation (“Polo”) in an unrelated civil
action against Hagege, would testify about Hagege’s efforts in
transferring assets in violation of a court order entered in the
civil action. After Keats took the stand, the government asked
Keats about the nature of the civil action and the judgment
that was entered. Keats testified that the civil action was
based on Hagege’s counterfeiting of Polo’s trademark, and
that the judgment included a $8.8 million damage award. The
government asked Keats whether Polo had ever collected the
money. When Keats testified that Hagege had not paid the
money, the government asked Keats what steps Polo had
taken in order to collect the money. Keats responded that Polo
had conducted an investigation to determine the whereabouts
of the money that Hagege had received from the counterfeit-
ing activity. The government then prodded Keats about the
specifics of the investigation:

    PROSECUTOR: What else did you do, Mr. Keats,
                in order to try to collect your
                judgment?

    WITNESS:           In terms of the investigation or —

    PROSECUTOR: Was there more that you did in
                terms of the investigation?

    WITNESS:           Well, the investigation — we, in
                       terms of depositions, we took a
                       significant number of depositions
                       of various parties who may have
                       been involved in some of these
                       transactions. I recall there was
                       one gentleman who was a partner
                       of Mr. Hagege who had set up a
                       pornography business with Mr.
                       Hagege —
                   UNITED STATES v. HAGEGE                   1837
(AER at 390-91) (emphasis added). Hagege’s counsel
objected and requested a sidebar. The district court sustained
the objection and at sidebar admonished the prosecutor,
regarding Keats’ testimony:

      COURT:           Did you talk to this witness before
                       you put him on the stand? What
                       kind of nonsense is this?

      PROSECUTOR: Your Honor, I didn’t expect him
                  to say that.

      COURT:           Shall I bring him over here and
                       tell him? We’re not trying to pil-
                       lory this man.

      PROSECUTOR: Your Honor, that was not the
                  intent at all. I had no idea that that
                  was going to come up.

...

      COURT:           I’m inclined to grant a mistrial.

      PROSECUTOR: Your Honor, the question — if we
                  could go back — it was: What
                  other investigation did you do? I
                  had no idea that was going to
                  come out.

      COURT:           Well, it’s not a punishment
                       against the Government. Obvi-
                       ously, you didn’t ask him to say
                       that; but the problem is that he
                       said it.

...
1838               UNITED STATES v. HAGEGE
    PROSECUTOR: That was not the intent. It was one
                statement by a witness that was
                not anticipated by anybody, Your
                Honor; and I believe it would be
                inappropriate to grant a mistrial at
                this time.

(AER at 391-94.) Hagege’s counsel made an oral motion for
a mistrial. The district court granted the motion and declared
a mistrial, finding that “the statement was so prejudicial the
jury can’t possibly forget it.” (AER at 397.)

   Thereafter, Hagege filed a motion for an evidentiary hear-
ing to inquire into whether the prosecutor intentionally pro-
voked the motion for a mistrial, in which case retrial would
have been barred by the Double Jeopardy Clause. The govern-
ment opposed the motion. In an affidavit attached to the gov-
ernment’s opposition memorandum, the prosecutor stated that
during the pretrial meetings, Keats “did not ever mention the
word pornography or state that he had taken the deposition of
a person who was in the pornography business with defen-
dant.” (AER at 429.) At oral argument, Hagege’s counsel
argued that the prosecutor’s declaration left open the question
whether she had discussed the “adult-oriented business” with
him, or some other euphemism for the word “pornography.”
In response, the prosecutor represented to the district court at
oral argument that “we never discussed the adult entertain-
ment business, the adult-oriented business, or any other way
to describe the pornography business during the six hours that
we met with Mr. Keats.” (AER at 453.) Accepting the govern-
ment’s representation, the district court denied the motion for
an evidentiary hearing. Citing to its earlier tentative ruling,
the district court reasoned:

    [T]here is no conceivable reason that the prosecutor
    would have wanted to trigger a mistrial motion by
    the defense. The Government’s witnesses were ready
    and available; evidence was being admitted as antici-
                    UNITED STATES v. HAGEGE                  1839
    pated by the Government. It is inconceivable to the
    Court that [the prosecutor] decided, on the third day
    of trial, to sabotage her own trial and start over.

(GER at 48.)

   On the fifth day of retrial, the district court provided a copy
of the jury instructions to the jury. The district court then pro-
ceeded to read the instructions to the jury. The following jury
instruction was included in the packet of instructions:

    You have heard evidence that defendant has previ-
    ously been convicted of a crime. You may consider
    that evidence only as it may affect the defendant’s
    believability as a witness. You may not consider a
    prior conviction as evidence of guilt of the crime for
    which the defendant is now on trial.

(AER at 466.) Upon reaching the foregoing instruction, the
district court paused, did not read the instruction, and made
the following remarks:

    COURT:              I don’t believe this next instruc-
                        tion is properly in this packet, and
                        I think it has been put in by mis-
                        take from another case. Top of
                        page 7.

    PROSECUTOR: The first paragraph, I agree, your
                Honor. That should not be in
                there.

    DEFENSE:            Yes, your Honor.

    COURT:              As you can imagine, we thought
                        the trial might be going on longer
                        than it did and so I have been
                        scurrying back and forth to my
1840                  UNITED STATES v. HAGEGE
                          secretary saying, “Prepare this
                          pack of instructions.” So please
                          take your pen or pencil and what-
                          ever you’ve got and cross out the
                          instruction on the top of page 7
                          because it is not from this trial.

(GER at 91-92.)

   Hagege moved for a mistrial, arguing that the inclusion of
the jury instruction in the packet of instructions gave the jury
the impression that Hagege had a prior conviction. The dis-
trict court denied the motion, finding that there was no reason
to believe that the jury would disbelieve his statement that the
instruction “was inadvertently pulled from another case and it
ha[d] nothing to do with this case.” (GER at 103.)

   The jury returned a guilty verdict on all counts. Thereafter,
the district court held a sentencing hearing. Citing to United
States v. Ameline, 376 F.3d 967 (9th Cir. 2004), superceded
by 409 F.3d 1073 (9th Cir. 2005) (en banc), which was con-
trolling law at the time,2 the district court stated that it would
“use and follow the [Federal Sentencing] [G]uidelines to
determine the appropriate sentence but w[ould] not enhance
unless the facts in support of the enhancement or adjustment
were found by the jury.” (GER at 140.) Constrained by the
facts found by the jury, the district court stated that it would
calculate a Guideline base offense level of six and apply a
two-level adjustment for concealing assets and a three-level
adjustment for an amount of loss in excess of $10,000. The
district court related that these adjustments were supported by
facts necessarily found by the jury. Based upon a total offense
  2
   In Ameline, we held that the Sixth Amendment right announced in
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), applied to
sentences imposed pursuant to the Federal Sentencing Guidelines and,
therefore, that a defendant has the Sixth Amendment right to have a jury
decide the facts underlying his sentence. 376 F.3d at 978-80.
                   UNITED STATES v. HAGEGE                  1841
level of eleven and a criminal history category of II, the dis-
trict court calculated a range of ten to fourteen months and
stated that it would impose a twelve month sentence.

   In addition, noting that the Supreme Court had granted cer-
tiorari in two cases involving the applicability of Blakely v.
Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), to the
Guidelines, the district court also arrived at two hypothetical
sentences depending upon the outcome of those cases. The
district court stated that if the Supreme Court were to deter-
mine that the Guidelines were unaffected by Blakely, it would
enhance the sentence based upon judicially-found facts. Spe-
cifically, beginning with a base offense level of six, the dis-
trict court would add ten levels for loss in the amount of
$775,000, two levels for more than minimal planning, two
levels for concealment of assets, and two levels for obstruc-
tion of justice, for a total offense level of twenty-two. With
a criminal history category of II, the district court determined
that it would impose a sentence of forty-six months. The dis-
trict court related that, alternatively, if the Supreme Court
were to determine that the Guidelines were facially invalid, it
would look at the factors set forth in 18 U.S.C. § 3553 and
select a four-year sentence.

  The district court sentenced Hagege to twelve months
imprisonment, three years supervised release, restitution of
$775,668, and a special assessment of $400.

                               II.

                               A.

   Hagege’s first contention on appeal is that the district court
erred in denying his motion for an evidentiary hearing regard-
ing whether the prosecutor intentionally provoked him into
moving for a mistrial. We review the district court’s denial of
the motion for an evidentiary hearing for an abuse of discre-
tion. See United States v. Hernandez, 80 F.3d 1253, 1261 (9th
1842                UNITED STATES v. HAGEGE
Cir. 1996), overruled on other grounds by Muscarello v.
United States, 524 U.S. 125, 118 S. Ct. 1911 (1998).

   [1] “The Double Jeopardy Clause provides criminal defen-
dants the right to have their case heard and a verdict returned
by the jury originally impaneled.” Greyson v. Kellam, 937
F.2d 1409, 1413 (9th Cir. 1991). Here, we are concerned with
the contours of that right when the defendant himself moves
for, and is granted, a mistrial. When a mistrial is declared at
the behest of the defendant, there is a “narrow” exception to
the general rule that the Double Jeopardy Clause is no bar to
retrial. Oregon v. Kennedy, 456 U.S. 667, 673, 102 S. Ct.
2083, 2088 (1982). Under that exception, a defendant who has
moved for a mistrial may invoke the bar of double jeopardy
where “the conduct giving rise to the successful motion for a
mistrial was intended to provoke the defendant into moving
for a mistrial.” Id. at 679, 102 S. Ct. at 2091. Prosecutorial
misconduct alone, in the absence of such an intent, does not
invoke the bar of double jeopardy. See id. at 675-76, 102
S. Ct. at 2089. For example, “[p]rosecutorial conduct that
might be viewed as harassment or overreaching, even if suffi-
cient to justify a mistrial on defendant’s motion, [ ] does not
bar retrial absent intent on the part of the prosecutor to sub-
vert the protections afforded by the Double Jeopardy Clause.”
Id. Thus, in determining whether the protection of the double
jeopardy bar applies, the district court must examine the intent
of the prosecutor. Id. at 675, 102 S. Ct. at 2089. Inference of
the existence or nonexistence of intent should be based upon
the “objective facts and circumstances.” Id.

   Hagege asserts that the district court lacked a sufficient fac-
tual basis to determine that an evidentiary hearing regarding
prosecutorial intent was unnecessary. Hagege maintains that
an evidentiary hearing was necessary to determine whether
the prosecutor had discussed the issue of pornography with
Keats prior to trial. The government responds that the district
court accepted the prosecutor’s representation at oral argu-
ment that Keats and the government “never discussed the
                    UNITED STATES v. HAGEGE                  1843
adult entertainment business, the adult-oriented business, or
any other way to describe the pornography business during
the six hours that we met with Mr. Keats.” (AER at 453.) The
government posits that an evidentiary hearing was unneces-
sary since the district court was familiar with the objective
facts and circumstances of the case and found no evidence
that the prosecutor intended to provoke the mistrial.

   [2] This Court has not had the occasion to decide under
what circumstances a district court, presented with a double
jeopardy claim that the prosecutor intended to provoke a mis-
trial, must hold an evidentiary hearing. However, several
other courts of appeals have addressed the issue, with varying
approaches. See, e.g., United States v. Curry, 328 F.3d 970,
974 (8th Cir. 2003); United States v. Pavloyianis, 996 F.2d
1467, 1475 (2d Cir. 1993); United States v. Oseni, 996 F.2d
186, 188 (7th Cir. 1993); United States v. White, 914 F.2d
747, 752 n.1 (6th Cir. 1990); United States v. Wentz, 800 F.2d
1325, 1328 (4th Cir. 1986).

   Adopting a methodical approach to the issue, the Court of
Appeals for the Seventh Circuit has set forth a two-step proce-
dure to guide a court in determining whether an evidentiary
hearing is necessary. See Oseni, 996 F.2d at 188. Under that
approach, the district court should, first, elicit an informal
explanation from the prosecutor as to the reason for the mis-
conduct, and, second, assess the progress of the trial. Id. If the
prosecutor’s explanation is reasonable and the trial was not
going poorly for the government, the district court may accept
the prosecutor’s explanation without the need for an evidenti-
ary hearing. Id.

   [3] Taking a more flexible and seemingly more deferential
approach, the Courts of Appeals for the Fourth Circuit and the
Sixth Circuit have stated that a hearing is required “only if
there existed a genuine issue in the mind of the trial court con-
cerning the prosecutor’s intent.” White, 914 F.2d at 752 n.1
(citing Wentz, 800 F.2d at 1328). Thus, for example, in Wentz,
1844                UNITED STATES v. HAGEGE
the court found no reversible error in the district court’s fail-
ure to hold an evidentiary hearing before retrial. 800 F.2d at
1327-28. In deferring to the district court’s finding, the Wentz
court underscored that “[t]he trial judge was quite familiar
with the events surrounding defendant’s motion for a mistrial
. . . [and] was uniquely positioned to characterize the conduct
of the government . . .” Id. at 1328. The court further reasoned
that there was nothing in the record to indicate that the district
court’s finding that no “goading” took place was incorrect. Id.

  The Court of Appeals for the Eighth Circuit has taken a
similar approach. In Curry, the court accepted “[t]he district
court[’s] conclu[sion] that because it had heard the trial and
was familiar with the objective facts and circumstances of the
case, a hearing was not necessary.” 328 F.3d at 974.

   Similarly, the Court of Appeals for the Second Circuit has
stated that “[n]o rule of law requires a hearing in this sort of
case where the relevant facts can be ascertained from the
record.” Pavloyianis, 996 F.2d at 1475. In Pavloyianis, reject-
ing the defendant’s contention that an evidentiary hearing was
necessary, the court reasoned that the district court had pre-
sided over all the proceedings and reviewed the affidavits, and
had not found the slightest indication or evidence of prosecu-
torial misconduct in connection with the government witness’
perjury. Id.

   In this case, the government’s witness testified that Hagege
was involved in a pornography business. After the testimony,
the district court asked the prosecutor at sidebar, “What kind
of nonsense is this?” (AER at 391.) In response, the prosecu-
tor explained that she had not expected the witness to give
that testimony and it had not been her intent for him to do so.
The district court accepted the prosecutor’s explanation, stat-
ing “[o]bviously, you didn’t ask him to say that; but the prob-
lem is that he said it.” (AER at 394.) Hagege contends that the
prosecutor’s declaration in opposition to his motion did not
address whether the prosecutor discussed the issue of pornog-
                   UNITED STATES v. HAGEGE                 1845
raphy with Keats under any euphemism. However, the district
court elicited, and accepted, the prosecutor’s representation at
oral argument that she did not discuss the issue of pornogra-
phy or any euphemism thereof with Keats during their six-
hour pretrial meeting. Having presided over the entire pro-
ceedings and reviewing the affidavits, the district court was
uniquely positioned to evaluate the prosecutor’s conduct.
There is nothing in the record that calls into question the
veracity of the prosecutor’s representations.

   Furthermore, the district court observed that the case had
been going well for the government: “witnesses were ready
and available; evidence was being admitted as anticipated by
the Government.” (GER at 48.) Based upon this assessment,
the district court found “that there [wa]s no conceivable rea-
son that the prosecutor would have wanted to trigger a mis-
trial motion by the defense.” (GER at 48.) Hagege has not
offered a single reason why the government would have
wanted to sabotage a trial that was going well.

   [4] In summary, the district court elicited reasonable expla-
nations from the prosecutor regarding the alleged misconduct
and assessed that the trial was going favorably for the govern-
ment. Based upon all of the objective facts and circumstances,
the district court concluded that there was no indication or
evidence of prosecutorial misconduct intended to provoke a
mistrial. Under any of the approaches formulated by our sister
courts, we find no error in the district court’s determination
that an evidentiary hearing was unnecessary. Accordingly, we
conclude that the district court did not abuse its discretion in
denying the motion for an evidentiary hearing.

                              B.

   [5] Hagege next challenges the district court’s denial of his
motion to dismiss count one of the indictment based upon the
statute of limitations. Pursuant to 18 U.S.C. § 3292, the gov-
ernment may seek the suspension of the running of a statute
1846               UNITED STATES v. HAGEGE
of limitations for an offense to obtain evidence of the offense
in a foreign country. Hagege argues that notwithstanding any
allowable suspension period under § 3292, count one of the
indictment was untimely. We review the district court’s denial
of the motion to dismiss de novo and its factual findings
underlying the legal ruling for clear error. United States v.
DeGeorge, 380 F.3d 1203, 1213 (9th Cir. 2004).

   [6] Under § 3292, the period of suspension “begin[s] on the
date on which the official request is made and end[s] on the
date on which the foreign court or authority takes final action
on the request.” 18 U.S.C. § 3292(b). The parties dispute the
duration of the period of suspension. To determine the dura-
tion of the suspension period in this case, we address the fol-
lowing two-part question: (1) what is the scope of the official
request made on March 21, 2002; and (2) when was “final
action” taken on the official request.

                              1.

   The government made an official MLAT request to Israel
on March 21, 2002. Hagege contends that the MLAT request
contained only a request for documents and expressly dis-
avowed any need for certification of the documents. The gov-
ernment maintains that the MLAT request included a request
for certification. The district court agreed with the govern-
ment and read the MLAT letter as encompassing both a
request for documents and a request for a certificate of
authenticity. Based upon the relevant language in the MLAT
request, we cannot say that the district court’s reading was
clearly erroneous.

   Although the March 21, 2002 MLAT request allowed for
the initial production of uncertified documents, it also
requested that the documents be resent in certified form. The
MLAT letter underscored the necessity of the certification
“[i]n order for the requested bank records to be received as
evidence in courts of the United States . . . ,” and stated
                    UNITED STATES v. HAGEGE                   1847
“when the time for trial in the United States approaches, the
United States requests that some or all of the non-certified
evidence be resent to the United States in certified form.”
(AER at 198-99.) Throughout the MLAT request, the govern-
ment reiterated a need for “certified” documents. (AER at
197-98, 203-04.) The “Procedures to Be Followed” section of
the MLAT request contained specific instructions regarding
completion of the certification form. (AER at 208-09.) Fur-
thermore, the “Special Considerations Regarding Execution
of this Request” section of the MLAT request asked that “par-
ticular care be taken to ensure that the forms are executed in
precise accordance with their terms and the directions set
forth in this request.” (AER at 199.) Thus, the language of the
MLAT request supports the district court’s reading.

   Hagege relies upon the Israeli government’s July 2002
response to the MLAT request in support of his argument that
the request did not contain a certification request. In that let-
ter, the Israeli government stated, “[t]he above captioned
request was executed,” and stated “in the future, should you
need certified copies of the bank statements please let me
know.” (AER at 332.) Hagege posits that if the MLAT request
had included a certification request, then the Israeli govern-
ment would not have viewed its mere production of docu-
ments as execution of the request.

   Hagege’s reliance on a foreign sovereign’s response to
determine the scope of the MLAT request is flawed for two
principal reasons. First, there are inherent practical difficulties
in defining the scope of a request ex post facto by reference
to its response. Second, and more importantly, such a result
would turn application of § 3292 on “the subjective opinion
of foreign countries — whether correct or not — rather than
on an objective assessment” of the scope of an official
request. See United States v. Torres, 318 F.3d 1058, 1063
(11th Cir. 2003). These two considerations militate against
reliance on Israel’s response to determine whether the MLAT
request contained a certification request.
1848               UNITED STATES v. HAGEGE
   [7] Hagege also argues that accepting the government’s
reading of the MLAT request would permit the government
extrajudicially to extend the suspension period, thereby
encouraging delay and upsetting the “separation of powers” of
government. Hagege is correct, in part. By making an official
request for certified documents with a future delivery provi-
sion, the government is able to extend the suspension period
longer than had it insisted upon immediate delivery of the cer-
tified documents. However, § 3292 does not prohibit this kind
of conduct. Generally speaking, the statute does not regulate
the mechanics of how the government goes about obtaining
foreign evidence. In particular, there is nothing in the statute
which dictates when the government must demand delivery of
a certificate of authenticity of the foreign documents it has
requested. By implication, Congress has left these discovery-
related matters to the discretion of the attorney for the United
States. Thus, contrary to Hagege’s suggestion otherwise, read-
ing the MLAT request as encompassing a request for certifi-
cation does not implicate separation of powers principles.

   Moreover, as we noted in United States v. Bischel, 61 F.3d
1429, 1435 (9th Cir. 1995), there is no requirement in § 3292
that the government diligently seek evidence located in a for-
eign country since the statute has a built-in time limitation on
the suspension period. The statute provides that the total
period of suspension shall in no event exceed three years. 18
U.S.C. § 3292(c)(1). Further, the total period of suspension
cannot exceed six months if final action is taken before the
statute of limitations would have otherwise expired. 18 U.S.C.
§ 3292(c)(2). In enacting these time limitations, Congress
took the potential for governmental delay into consideration.
Torres, 318 F.3d at 1064. The inclusion of these time limita-
tions in the suspension statute attempts to create a balance
between permitting the government to obtain foreign evidence
and ensuring that the defendant is given the protections of
predictability and promptness which underlie statutes of limi-
tations. Given these time limitations, we conclude that adopt-
                   UNITED STATES v. HAGEGE                  1849
ing the government’s construction of the MLAT request
would not result in unabashed delay.

  [8] For the foregoing reasons, we conclude that the district
court did not abuse its discretion in construing the MLAT
request as containing both a request for documents and a
request for certification.

                               2.

   [9] The next issue is when the Israeli government took
“final action” on the MLAT request as construed as a request
for documents and certification. Although “final action” is not
defined in § 3292, in Bischel, we held that “ ‘final action’ for
purposes of § 3292 means a dispositive response by the for-
eign sovereign to both the request for records and for a certifi-
cate of authenticity of those records, [when] both [a]re
identified in the ‘official request.’ ” 61 F.3d at 1434.

   In Bischel, the government sent to the British government
an official request seeking copies of certain bank records,
copies of certain records of precious metals trading activity,
and a certificate of authenticity of those records. Id. at 1432.
By the time the indictment was returned, the British authori-
ties had produced all of the documents requested, but not the
certificate of authenticity. Id. In Bischel, we concluded that
final action had not occurred by the time the indictment was
returned because the British authorities had not decided
whether they would comply with the request for certification.
Id. at 1434. We reasoned that “pegging ‘final action’ to dispo-
sition, up or down, of each of the items in the official request
provides a more certain benchmark by which to measure
whether the action that has been taken is ‘final’ or not.” Id.

   [10] Under Bischel, therefore, we must determine when the
Israeli government made a “disposition, up or down, of each
of the items in the official request,” including the request for
certification. Id. The record indicates that in June 2002, the
1850                   UNITED STATES v. HAGEGE
Israeli government produced documents responsive to the
MLAT request, but no certification. The Israeli government’s
July 18, 2002 letter, stating “in the future, should you need
certified copies of the bank statements please let me know,”
was not a “disposition, up or down,” of the certification
request. Id. At this point, the Israeli government had not pro-
vided the certificate of authenticity, nor had it indicated it
would not comply with the request for certification. The gov-
ernment continued to pursue the certificate of authenticity,
making three requests between March 2003 and early Decem-
ber 2003. Finally, on December 18, 2003, the government
received the certificate of authenticity via facsimile from
Israel. Thus, under Bischel, “final action” for purposes of
§ 3292 could not have occurred before December 18, 2003,
when the U.S. government received the requested certificate
of authenticity. Accordingly, the statute of limitations was
suspended from March 21, 2002 until, at least, December 18,
2003. Since the indictment was filed on September 24, 2003,
we conclude that count one of the indictment was timely filed.3
Accordingly, we find no error in the district court’s decision
to deny Hagege’s motion to dismiss.4

                                    C.

   Hagege next argues that the district court’s admission of
foreign records under 18 U.S.C. § 3505 violated Hagege’s
right of confrontation. A district court’s evidentiary rulings
  3
     Pursuant to 18 U.S.C. § 3292(c)(2), the total of all periods of suspen-
sion “shall not extend a period within which a criminal case must be initi-
ated for more than six months if all foreign authorities take final action
before such period would expire without regard to this section.” Because
“final action” was taken well after the statute of limitations — untolled —
would have expired, the six-month limitation provided in § 3292(c)(2)
does not apply.
   4
     Because count one is not time-barred, we need not consider defen-
dant’s related argument that the district court’s alleged error in not dis-
missing count one permeated the entire trial because the prosecutor was
permitted to argue that defendant was a “liar.”
                       UNITED STATES v. HAGEGE                         1851
are reviewed for an abuse of discretion. Head v. Glacier
Northwest, Inc., 413 F.3d 1053, 1062 (9th Cir. 2005). We
review de novo a district court’s admission of evidence in
alleged violation of the Confrontation Clause. United States v.
Weiland, 420 F.3d 1062, 1076 n.11 (9th Cir. 2005). If the
defendant failed to object to the admission of evidence under
the Confrontation Clause, we review for plain error. United
States v. Allen, 425 F.3d 1231, 1235 (9th Cir. 2005).

   [11] Pursuant to § 3505, “[i]n a criminal proceeding in a
court of the United States, a foreign record of regularly con-
ducted activity, or a copy of such record, shall not be
excluded as evidence by the hearsay rule if a foreign certifica-
tion attests . . .” to the requirements specified in the statute.5
Under § 3505, a foreign certification serves to authenticate the
foreign records, and thus “dispenses with the necessity of call-
ing a live witness to establish authenticity.” United States v.
Sturman, 951 F.2d 1466, 1489 (6th Cir. 1991); 18 U.S.C.
§ 3505(a)(2) (“A foreign certification under this section shall
authenticate such record or duplicate.”). In addition, when a
foreign certification meets the requirements of § 3505(a)(1),
the statute prevents the exclusion of the foreign records as
hearsay. Sturman, 951 F.2d at 1489.

   Hagege raises the argument that the district court’s admis-
sion of foreign records under 18 U.S.C. § 3505 violated his
right of confrontation under Crawford v. Washington, 541
U.S. 36, 124 S. Ct. 1354 (2004). In Crawford, the Supreme
Court considered whether a trial court’s admission of a tape-
  5
    The foreign certification must attest that — “(A) such record was
made, at or near the time of the occurrence of the matters set forth, by (or
from information transmitted by) a person with knowledge of those mat-
ters; (B) such record was kept in the course of a regularly conducted busi-
ness activity; (C) the business activity made such a record as a regular
practice; and (D) if such record is not the original, such record is a dupli-
cate of the original; unless the source of information or the method or cir-
cumstances of preparation indicate lack of trustworthiness.” 18 U.S.C.
§ 3505(a)(1).
1852                UNITED STATES v. HAGEGE
recorded out-of-court statement made by a witness while in
police custody, where the defendant had no opportunity to
cross-exam the witness, violated the defendant’s Sixth
Amendment right of confrontation. Id. at 38, 124 S. Ct. at
1357. In deciding that there was a violation of the Sixth
Amendment, the Court determined that the witness’s state-
ment, made while in police custody, fell within a core class
of “testimonial statements” that requires Confrontation Clause
protection. Id. at 68-69, 124 S. Ct. at 1374.

   [12] The Crawford Court explained that, as to testimonial
statements, the only indicium of reliability sufficient to satisfy
constitutional demands is confrontation itself. Id. at 68-69,
124 S. Ct. at 1374. The Court stated, “[w]here testimonial evi-
dence is at issue [ ], the Sixth Amendment demands what the
common law required: unavailability and a prior opportunity
for cross-examination.” Id. at 68, 124 S. Ct. at 1374. Although
the Crawford Court did not offer a comprehensive definition
of testimonial evidence, the Court did cite to various formula-
tions of this core class of testimonial statements, see id. at 51-
52, 124 S. Ct. at 1364, and stated, “[w]hatever else the term
covers, it applies at a minimum to prior testimony at a prelim-
inary hearing, before a grand jury, or at a former trial; and to
police interrogations,” id. at 68, 124 S. Ct. at 1374.

   In resurrecting the demands of the common law for testi-
monial evidence, the Crawford Court was departing from
prior precedent, specifically the case of Ohio v. Roberts, 448
U.S. 56, 100 S. Ct. 2531 (1980). In Roberts, the Court ruled
that an unavailable witness’s statement against a criminal
defendant may be admitted so long as it falls within a “firmly
rooted hearsay exception,” or bears “particularized guarantees
of trustworthiness.” 448 U.S. at 66, 100 S. Ct. at 2539. Craw-
ford called the Roberts framework unpredictable and incapa-
ble of protecting the core testimonial statements that the
Confrontation Clause was meant to exclude. 541 U.S. at 62-
63, 124 S. Ct. at 1371.
                       UNITED STATES v. HAGEGE                       1853
   [13] Significantly, however, the Crawford Court was care-
ful to distinguish between testimonial statements, which are
subject to Confrontation Clause scrutiny, and non-testimonial
statements, which need not be. The Court explained that
applying the Roberts framework to non-testimonial statements
would not be inconsistent with the Framers’ understanding of
the Confrontation Clause, nor would be application of any
approach that exempts non-testimonial statements from Con-
frontation Clause scrutiny altogether. Id. at 68, 124 S. Ct. at
1374. Thus, the stringent requirement of confrontation resur-
rected in Crawford does not apply to non-testimonial evi-
dence.

   [14] Although the Crawford Court did not provide a defini-
tion of the term “non-testimonial evidence,” the Court did
indicate that business records are an example of the kind of
statements which by their nature are not testimonial. Id. at 56,
124 S. Ct. at 1367. Business records fall outside the core class
of “testimonial evidence,” and thus are not subject to the
absolute requirement of confrontation established in Craw-
ford. We conclude therefrom that foreign business records
admitted under § 3505 are not subject to the Crawford
requirement of confrontation.6

   [15] We need not decide here whether, post-Crawford,
business records remain subject to a challenge that their
admission violates the Confrontation Clause under Roberts.
Even assuming that a Confrontation Clause challenge to non-
testimonial evidence under Roberts survives Crawford, the
law in our Circuit establishes that the admission of the foreign
bank records under § 3505 meets the Roberts test because the
records bear indicia of reliability and the hearsay exception
for business records is firmly rooted. United States v. Miller,
  6
   The foreign certifications attesting to the authenticity of the business
records were not admitted into evidence. Thus, we do not consider
whether admission of the foreign certifications would have violated the
Confrontation Clause under Crawford.
1854                  UNITED STATES v. HAGEGE
830 F.2d 1073, 1077-78 (9th Cir. 1987). We therefore con-
clude that under a de novo or plain error standard,7 the district
court’s admission of the foreign business records did not vio-
late the Confrontation Clause.

   In addition to the Confrontation Clause challenge, Hagege
suggests that even if the foreign records were properly
authenticated under § 3505, the records constitute inadmissi-
ble hearsay. In support of this argument, Hagege cites to the
case of United States v. Yin, 935 F.2d 990 (9th Cir. 1991). In
Yin, we made the unremarkable observation that a document
which is authentic may still contain inadmissible hearsay. Id.
at 1000 (“The government cites no authority for the proposi-
tion that hearsay within any authenticated documents is auto-
matically admissible. This argument confuses discrete
foundational requirements for the admission of a writing; a
document may be authentic, but still contain inadmissible
hearsay.”). Section 3505, however, provides a certification
procedure by which a foreign business record may be both
excepted from the hearsay rules and authenticated. 18 U.S.C.
§ 3505(a). Here, the district court found that the government
had complied with that procedure and thus admitted the for-
eign business records into evidence. We find no error in the
district court’s ruling.

  Based upon the foregoing, we conclude that the district
court’s admission of the foreign bank records was not errone-
ous.

                                   D.

   As a final argument, Hagege contends that the district court
erred when it denied his motion for a mistrial as to the second
trial based upon the district court’s accidental inclusion of a
  7
   We need not decide whether Hagege raised his Confrontation Clause
argument before the district court, since, as discussed, we find no error
under either a de novo or plain error standard.
                    UNITED STATES v. HAGEGE                  1855
jury instruction relating to prior convictions. A district court’s
denial of a motion for mistrial is reviewed for abuse of discre-
tion. United States v. Allen, 341 F.3d 870, 891 (9th Cir. 2003).

   [16] The district court did not abuse its discretion in deny-
ing Hagege’s motion for a mistrial. As the district court
observed, there was no reason to believe that the jury would
disbelieve his statement that the instruction “was inadver-
tently pulled from another case and it ha[d] nothing to do with
this case.” (GER at 103.) Further, the district court asked the
jury to cross out the inadvertently included instruction. Given
these remedial steps, the district court did not abuse its discre-
tion in denying the motion for a mistrial. See United States v.
Olano, 62 F.3d 1180, 1201-02 (9th Cir. 1995) (finding no
reversible error in the district court’s inadvertent mention of
a jury instruction relating to penalties where the district court
told the jury that some changes would be made to the final
written instructions and the final set of instructions did not
include the improper instruction).

                               III.

   The government appeals the district court’s sentence in
light of United States v. Booker, 543 U.S. 220, 125 S. Ct. 738
(2005). Because the government preserved this error at sen-
tencing, the harmless error standard applies. See United States
v. Seschillie, 310 F.3d 1208, 1214 (9th Cir. 2002).

   As related in the factual discussion above, at sentencing,
the district court stated that it would “use and follow the
guidelines to determine the appropriate sentence but w[ould]
not enhance unless the facts in support of the enhancement or
adjustment were found by the jury.” (GER at 140.) Con-
strained by the facts found by the jury, the district court stated
that it would calculate a Guideline base offense level of six
and apply a two-level adjustment for concealing assets and a
three-level adjustment for an amount of loss in excess of
$10,000. Based upon a total offense level of eleven and a
1856               UNITED STATES v. HAGEGE
criminal history category of II, the district court calculated a
range of ten to fourteen months and stated that it would
impose a twelve month sentence. The district court stated,
however, that if the Supreme Court were to determine that the
Guidelines were unaffected by Blakely v. Washington, 542
U.S. 296, 124 S. Ct. 2531 (2004), it would enhance the sen-
tence based upon judicially-found facts.

   [17] In Booker, the Supreme Court held that while its deci-
sion in Blakely applies to the Federal Sentencing Guidelines,
a district court may engage in judicial factfinding without
implicating the Sixth Amendment so long as the district court
treats the Guidelines as advisory. See Booker, 543 U.S. 220,
125 S. Ct. at 750, 756-57. Here, the district court committed
nonconstitutional error in viewing the Guidelines as manda-
tory and refusing to increase Hagege’s sentence on the basis
of judicial factfinding. See id. (holding that the Guidelines are
advisory, not mandatory); United States v. Ameline, 409 F.3d
1073, 1084 n.8 (9th Cir. 2005) (“In a case where the district
court did not treat the sentencing guidelines as advisory but
the defendant’s sentence was not enhanced by extra-verdict
findings . . . [a] nonconstitutional error occurs.”). Moreover,
based upon a review of the transcript of the sentencing hear-
ing, it is clear that the error was not harmless because the dis-
trict court expressly stated that it would have increased the
sentence based upon judicial factfinding had it been permitted
to do so. Accordingly, we will vacate the sentence and
remand to the district court for resentencing in light of
Booker. In resentencing the defendant, the district court “is
permitted to take a fresh look at the relevant facts” and the
Guidelines. Ameline, 409 F.3d at 1085.

                              IV.

   For the foregoing reasons, we conclude that the district
court did not err in denying defendant’s motion for an eviden-
tiary hearing to determine whether the prosecutor intended to
provoke a mistrial. We conclude that count one of the indict-
                   UNITED STATES v. HAGEGE                1857
ment was not barred by the statute of limitations. The admis-
sion of the foreign bank records did not violate defendant’s
Sixth Amendment right of confrontation. Further, the district
court did not abuse its discretion in denying the motion for a
mistrial as to the second trial based upon the district court’s
reference to a jury instruction relating to prior convictions.
Therefore, we will affirm the conviction. However, we will
vacate the sentence and remand to the district court for resen-
tencing in light of Booker.

 CONVICTION AFFIRMED; SENTENCE VACATED;
REMANDED FOR RESENTENCING.
