DISCUSSION

The parties are familiar with the facts, so we need not restate them in detail

here. Mr. Hurtado argues that he is entitled to a new trial on three grounds: (1) the

district court’s failure to hold an evidentiary hearing to determine possible jury

prejudice; (2) the government’s mischaracterization of evidence during closing

arguments; and (3) the failure to instruct the jury that Mr. Hurtado must be aware

2 of his status as a felon to be convicted under § 922(g).

A. Jury Prejudice

During a bus ride to court one day, a juror struck up a conversation with a

fellow passenger, a county prosecutor, about what kind of case the juror was

serving on and who was the presiding district judge. At the courthouse, the juror

told the other jurors that the county prosecutor said the district judge was “very

notable” and asked what kind of case it was. At that point, the other jurors told the

juror in question to stop talking.

Mr. Hurtado argues that the district court was required to hold an evidentiary

hearing once it was informed of this incident. We have established a two-step

process for evaluating allegedly prejudicial jury contacts. First, “[t]he defendant

must present evidence of a contact sufficiently improper as to raise a credible risk

of affecting the outcome of the case.” Godoy v. Spearman, 861 F.3d 956, 967 (9th

Cir. 2017). If the defendant makes that showing, “the presumption of prejudice

attaches, and the burden shifts to the state to prove that the contact was harmless.”

Id. at 968. The district court must also hold an evidentiary hearing to evaluate

prejudice only “if there is any remaining uncertainty about ‘what actually

transpired, or whether the incident[]’” was prejudicial. Id. at 969 (quoting Remmer

v. United States, 347 U.S. 227, 229 (1954)). An evidentiary hearing is not required

upon every allegation of jury misconduct or bias. United States v. Saya, 247 F.3d

3 929, 934–35 (9th Cir. 2001). Because Mr. Hurtado failed to object to the district

court’s handling of the jury incident below, we review his claim for plain error.

See Puckett, 556 U.S. at 135.

The district court appropriately handled the report of the potentially

improper jury contact. Upon receiving the report, the district court questioned the

juror about the conversation in front of the government and defendant’s counsel.

The juror’s account matched that of the juror who reported the incident. The

district court replaced the juror with an alternate “in [an] abundance of caution,”

but found that the juror did not pass on inappropriate information about the facts or

merits of the case. Mr. Hurtado did not object to any of this and agreed with the

government that instructing the jury not to speculate as to the reason for the juror’s

excusal was an adequate response. Under these circumstances, the district court

was not required to hold an evidentiary hearing and did not err in failing to do so.

There is no error, plain or otherwise.

B. Prosecutorial Misconduct

Mr. Hurtado argues that the district court was required to grant a mistrial

based on the prosecutor’s mischaracterization of an officer’s testimony during

closing arguments. Mr. Hurtado did not object to the misstatement at trial, so his

claim is reviewed for plain error. See Puckett, 556 U.S. at 135.

4 “A prosecutor’s inadvertent mistakes or misstatements are not misconduct”

and “are not a basis for reversal.” United States v. Lloyd, 807 F.3d 1128, 1168 (9th

Cir. 2015). Here, the mistake appears inadvertent, as the prosecutor briefly

conflated different aspects of the officer’s testimony but characterized it correctly

shortly thereafter. Moreover, the district court instructed the jury that what

lawyers say in their closing arguments is not evidence. See id. at 1168 (noting

importance of district court’s instructions “that the jury’s recollections—not the

prosecutor’s summation—controlled”). Accordingly, the district court was not

required to grant a mistrial.

C. Rehaif Instruction

Finally, Mr. Hurtado argues that he is entitled to a new trial because the jury

was not instructed that the government must prove that Mr. Hurtado knew of his

status as a felon in order to support a conviction under 18 U.S.C. § 922(g). Mr.

Hurtado did not raise this issue below, so it is reviewed for plain error. The

government concedes that this omission was a clear and obvious error under Rehaif

v. United States, 139 S. Ct. 2191 (2019), but argues that the error did not violate

Mr. Hurtado’s substantial rights and did not seriously affect the fairness or

integrity of the judicial proceedings.

The failure to provide a Rehaif instruction will not constitute reversible plain

error where the record on appeal demonstrates that a “hypothetical retrial is certain

5 to end in the same way as the first one.” United States v. Johnson, 979 F.3d 632,

637 (9th Cir. 2020). Mr. Hurtado testified on cross-examination that he was

sentenced to four years in prison for a prior offense and his PSR indicates that he

has been convicted of possessing a firearm as a felon three times and served more

than four years for one of those convictions. Given this uncontroverted evidence,

Mr. Hurtado cannot plausibly argue that a trier of fact might find that he was

unaware of his status as a felon; thus, he cannot establish reversible plain error.

See id. at 638–39.

AFFIRMED.

6