The Honorable Denny Chin, United States District Court for the Southern District of *

New York, sitting by designation.

 The Honorable Rosemary S. Pooler, originally a member of the panel, did not **

participate in consideration of this appeal. The two remaining members of the panel, who are in

agreement, have determined the matter. See 28 U.S.C. § 46(d); 2d Cir. Internal Operating

Procedure E; United States v. Desimone, 140 F.3d 457 (2d Cir. 1998).

09-1796-cr

United States v. Hansen

1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3

4 SUMMARY ORDER

5

6 RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A

7 SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED

8 BY THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. 

9 WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY

10 MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE

11 NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY

12 OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

13

14 At a stated Term of the United States Court of Appeals for the Second Circuit, held at the

15 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,

16 on the 10 day of March, two thousand and ten. th

17

18 Present:

19 JOSEPH M. McLAUGHLIN,

20 Circuit Judge,

21 DENNY CHIN,*

22 District Judge.

**

23

24 _____________________________________________________

25

26 UNITED STATES,

27

28 Appellee,

29

30 -v- (09-1796-cr)

31

32 BASIL HANSEN,

33

34 Defendant-Appellant.

35 

36

37 Appearing for Appellant: Randall D. Unger, Bayside, N.Y. 

38
2

1 Appearing for Appellee: Jacquelyn M. Rasulo, Assistant United States Attorney, United

2 States Attorney’s Office for the Eastern District of New York

3 (Emily Berger, on the brief)

4

5 Appeal from a judgment of the United States District Court for the Eastern District of

6 New York (Gleeson, Judge).

7

8 ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

9 AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED. 

10

11 Hansen was convicted of six drug offenses, including conspiracy to import heroin and

12 cocaine, in violation of 21 U.S.C. §§ 960 and 963, and conspiracy to possess with intent to

13 distribute heroin and cocaine, in violation of 21 U.S.C. §§ 841 and 846. He argues on appeal that

14 the district court erred by allowing the Government to introduce “other act” evidence, and that

15 the jury’s inadvertent exposure to extra-record evidence deprived him of his right to a fair trial. 

16 We assume the parties’ familiarity with the case.

17 Hansen’s argument that the district court abused its discretion by allowing his co18 conspirator to testify about their relationship prior to the conspiracy is without merit. We

19 evaluate the admission of “other act” evidence based on an “inclusionary approach,” upholding

20 the admission of such evidence “for any purpose other than to show a defendant’s criminal

21 propensity.” United States v. Brand, 467 F.3d 179, 196 (2d Cir. 2006); see also United States v.

22 Garcia, 291 F.3d 127, 136 (2d Cir. 2002). “[O]ne legitimate purpose for presenting evidence of

23 extrinsic acts is to explain how a criminal relationship developed; this sort of proof furnishes

24 admissible background information in a conspiracy case.” United States v. Pipola, 83 F.3d 556,

25 566 (2d Cir. 1996). 

26 Here, in granting the Government’s motion to admit his co-conspirator’s testimony, the

27 court noted that, “[a]t the very least, this testimony is properly admissible to allow the jury to get

28 a feel for the nature of the relationship between Mr. Hansen and [the witness].” This was a
3

1 proper purpose that provided relevant background information. See id. The court also provided

2 a limiting instruction to the jury, explaining that the testimony was only being admitted “to the

3 extent it sheds light on the nature of the relationship between the defendant on trial and this

4 witness who is testifying against him.” This instruction sufficiently cabined any possible

5 prejudice. See United States v. Araujo, 79 F.3d 7, 8 (2d Cir. 1996).

6 Also without merit is Hansen’s argument that the jury’s inadvertent exposure to extra7 record evidence deprived him of his right to a fair trial. “[A] criminal defendant’s Sixth

8 Amendment rights are implicated when a jury considers incriminating evidence that was not

9 admitted at trial.” Loliscio v. Goord, 263 F.3d 178, 185 (2d Cir. 2001). “[E]xtra-record

10 information that comes to the attention of a juror is presumptively prejudicial.” United States v.

11 Wiley, 846 F.2d 150, 157 (2d Cir. 1988) (internal quotation marks omitted). However, this

12 presumption may be rebutted by a showing that the jury’s exposure to extra-record information

13 was harmless. Bibbins v. Dalsheim, 21 F.3d 13, 16 (2d Cir. 1994). Importantly, the trial judge’s

14 conclusions regarding the effect of the extra-record evidence on the jury are entitled to

15 substantial weight. See United States v. Weiss, 752 F.2d 777, 783 & n.2 (2d Cir. 1985).

16 Here, the introduction of extra-record evidence was not prejudicial because there was no

17 indication that the jury actually considered it. The district court explicitly credited the jurors’

18 statements that they had not looked at the extra-record evidence. This finding, which is entitled

19 to substantial weight, is sufficient to defeat the presumption of prejudice. See id.

20 Accordingly, the judgment of the district court hereby is AFFIRMED.

21

22 FOR THE COURT:

23 Catherine O’Hagan Wolfe, Clerk

24

25

26