Brande

MEMORANDUM *

The relevant facts are known to the parties and are discussed here only as necessary. Ruane Brande and Carmen Pharr were found guilty of various counts of fraud. On appeal, they raise issues with respect to the jury’s impartiality, the government’s closing argument, and their sentences.

I. Jury Impartiality

Following oral argument, we remanded the defendants’ claim with respect to jury impartiality with instructions that the dis *340 trict court conduct an evidentiary hearing to determine whether the incident of which they complained affected their substantial rights. United States v. Brande, 329 F.3d 1173 (9th Cir.2003). After holding a hearing, the district court determined that the evidence presented established that “the incident did not occur and that the reopening of the case arose from a well-meaning but erroneous report by an FBI agent....”

In their supplemental brief, the defendants contend that the FBI agent’s report created a presumption of prejudice that the government failed to rebut. See United States v. Dutkel, 192 F.3d 893, 894 (9th Cir.1999). However, a presumption of prejudice does not arise here because the district court determined, on the…