Vigil

MEMORANDUM ***

Our review of a claim that a jury was exposed to impermissible extrinsic evidence warranting a new trial involves two steps. First, we ask whether the particular materials that a juror brings into the jury room constitute extraneous materials. Fields v. Brown, 503 F.3d 755, 779 (9th Cir.2007) (en banc). Second, if extrinsic evidence was presented to the jury, the defendant is entitled to a new trial “if there [e]xists a reasonable possibility that the extrinsic material could have affected the verdict.” United States v. Navarro-Garcia, 926 F.2d 818, 821 (9th Cir.1991) (quoting United States v. Vasquez, 597 F.2d 192, 193 (9th Cir.1979)). Because no extrinsic evidence was presented to the jury in the first instance, the district court correctly denied Martin Vigil’s motion for a new trial.

Following trial, the government observed one of the jurors holding a transparency upon which a black cap and sun-glass were drawn to the approximate scale of a photo exhibit of Vigil. Apparently, during deliberations, at least some jurors used the transparency to place over one or two of Vigil’s photographs that had been admitted into evidence. Identity of the robber, who had…