                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            NOV 07 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-10540

              Plaintiff - Appellee,              D.C. No. 1:11-cr-00503-JMS-1

  v.

MAHEALANI VENTURA-OLIVER,                        MEMORANDUM*

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Hawaii
                J. Michael Seabright, Chief District Judge, Presiding

                     Argued and Submitted October 18, 2016
                               Honolulu, Hawaii

Before: WALLACE, FARRIS, and WATFORD, Circuit Judges.

       Mahealani Ventura-Oliver appeals from her jury conviction of one count of

conspiracy to create and utter fictitious obligations and to commit mail fraud in

violation of 18 U.S.C. §§ 514, 1341, and 371, fifteen counts of substantive mail

fraud in violation of 18 U.S.C. § 1341, one count of engaging in monetary

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
transactions in property derived from specified unlawful activity in violation of 18

U.S.C. § 1957, one count of conspiracy to file false claims in violation of 18

U.S.C. §§ 287 and 371, and one count of filing a false claim in violation of 18

U.S.C. § 287. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

                                            I.

      Ventura-Oliver asserts that the district court erred by failing to give a “dual

role” jury instruction regarding the testimony of Case Agent Steven Carter. As

Ventura-Oliver did not object to the jury instructions at the time they were given,

the failure to give a specific instruction is reviewed for plain error. United States v.

Conti, 804 F.3d 977, 981 (9th Cir. 2015).

      Ventura-Oliver’s argument falls short for two reasons. First, Agent Carter

did not give expert testimony. Rather, he merely provided a “summary to prove

content” as allowed by Federal Rule of Evidence 1006. See United States v.

Aubrey, 800 F.3d 1115, 1130 (9th Cir. 2015). Second, even if Agent Carter did

give expert testimony, and thus the district court erred by failing to give a “dual

role” instruction, Ventura-Oliver has not shown that this error affected her

substantial rights and seriously affected the fairness, integrity, or public reputation

of the judicial proceedings, as required for reversal under a plain error standard of

review. Conti, 804 F.3d at 981.


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                                           II.

      Ventura-Oliver’s second argument is that the district court erred by denying

Ventura-Oliver’s motion for a mistrial after a juror found an imprint of the word

“guilty” on his recycled notebook. The “guilty” imprint constituted an ex parte

contact, as it did not pertain to any fact in controversy or any law applicable to the

case. See United States v. Rosenthal, 454 F.3d 943, 949 (9th Cir. 2006).

Accordingly, the district court’s denial of Ventura-Oliver’s mistrial motion is

reviewed for an abuse of discretion. Id.

      To receive a new trial based on an ex parte contact, a defendant must

demonstrate “actual prejudice.” United States v. Madrid, 842 F.2d 1090, 1093 (9th

Cir. 1988). Here, the district court determined that Ventura-Oliver had not suffered

any actual prejudice from the jurors’ exposure to the notebook. The district court

explained to the three jurors who had seen the imprint that the notebooks were

frequently recycled and that the imprint had come from a previous case. From its

questioning of these jurors, the district court determined that there was no

suggestion that it would affect the jurors’ ability to be fair. On this record, the

district court did not abuse its discretion in denying the motion for a mistrial.

      Accordingly, the judgment is affirmed. Ventura-Oliver’s request for judicial

notice is denied.


                                            3
AFFIRMED.




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