United States v. Brianna Meadows

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 23, 2017 Decided August 18, 2017

No. 15-3045

UNITED STATES OF AMERICA,

APPELLEE

v.

BRIANNA MEADOWS,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:14-cr-00073-1)

Charles B. Wayne, appointed by the court, argued the cause

for appellant. With him on the briefs was Jerald R. Hess,

appointed by the court.

Katherine M. Kelly, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief were Elizabeth

Trosman and Suzanne G. Curt, Assistant U.S. Attorneys.

Before: GARLAND, Chief Judge, ROGERS, Circuit Judge,

and WILLIAMS, Senior Circuit Judge.

2

Opinion for the Court filed by Chief Judge GARLAND.

Opinion concurring in part and concurring in the judgment

filed by Circuit Judge ROGERS.

GARLAND, Chief Judge: Brianna Meadows was convicted

of fraudulently obtaining unemployment benefits from the

District of Columbia Department of Employment Services. On

appeal, she contends that the district court erred in denying her

pre-trial motion to dismiss the indictment for prosecutorial

vindictiveness, and in permitting the government to make

improper statements at trial. For the reasons set forth below, we

affirm the judgment of the district court.

I

In January 2008, Brianna Meadows lost her job. On April

27, 2009, with the assistance of a staffing agency, Meadows

began working in a temporary, full-time position as an

administrative assistant at the U.S. Food and Drug

Administration (FDA). She held that position until September

2010. Although Meadows was working full time, she submitted

unemployment benefits claims to the Department of

Employment Services by computer, sometimes from her

workspace at the FDA.

The Department establishes a claimant’s eligibility to

receive unemployment benefits through a six-question weekly

claim form, which claimants may submit online. As relevant

here, the second question on the form requires claimants to

certify whether they worked during the week claimed and, if so,

to report their earnings. While performing work does not

necessarily disqualify a claimant from receiving unemployment

benefits altogether, a claimant whose salary exceeds a certain

threshold is ineligible. In this case, Meadows’ weekly salary of

3

$692.68 disqualified her from receiving unemployment benefits.

Nonetheless, based on the information she submitted to the

Department between April 2009 and May 2010, Meadows

received a total of $14,173 in benefits.

In February 2011, following an audit, the Department

notified Meadows that it had uncovered overpayments that may

have stemmed from her failure to accurately report her earnings.

In March, the Department mailed Meadows a formal notice of

its determination that she had received overpayments. Although

the notice made clear that criminal sanctions could result from

a failure to repay, Meadows did not make any voluntary

repayments to the Department between March 2011 and August

2014 (except for a possible attempted payment of $150).

The foregoing conduct came to the attention of the United

States Attorney for the District of Columbia as a result of a

separate investigation called “Concrete Playground” that began

in March 2011. That investigation targeted corrections officers

who were smuggling contraband to prisoners in the D.C. Jail.

The government alleged that Meadows herself brought

contraband to Pedro Petrovic, an inmate and her boyfriend at the

time, who had been convicted of first-degree murder and other

charges. In the investigation leading up to Petrovic’s

conviction, Meadows had been indicted on charges of

obstruction of justice and accessory after the fact, but those

charges were eventually dropped. In the jail contraband

investigation, agents obtained evidence that Meadows gained

access to the D.C. Jail by posing as an employee of the Public

Defender Service. That led them to make further inquiries about

her, and they then discovered what they believed to be her

scheme to defraud the Department of Employment Services by

unlawfully claiming unemployment benefits.

4

Meadows declined to speak with investigators about the jail

contraband case. Continuing to seek her cooperation, in June

2012 the U.S. Attorney’s Office served her with both a grand

jury subpoena and a target letter. The following year, the

government extended two plea offers to Meadows that combined

unemployment benefits fraud charges with charges stemming

from her alleged participation in the jail contraband scheme.

Neither was conditioned on cooperation in the prosecution of

anyone else. The first plea offer included one felony and one

misdemeanor charge. The second offered one count of

misdemeanor fraud for the unemployment benefits fraud scheme

and another misdemeanor count for providing contraband in

prison. Meadows rejected both offers.

On March 27, 2014, a grand jury indicted Meadows on six

felony counts: four counts of wire fraud, in violation of 18

U.S.C. § 1343; one count of theft of federal government

property, in violation of 18 U.S.C. § 641; and one count of first-

degree theft, in violation of D.C. Code §§ 22-3211, 22-3212(a).

Before trial, Meadows filed separate motions to dismiss the

federal theft count (Count 5) on the ground that the funds at

issue were not federal, and to dismiss the indictment as a whole

on the ground that she was being prosecuted vindictively. The

district court denied the motion to dismiss Count 5 on August

12, 2014. Six days later, Meadows made her first (material)

voluntary repayment to the Department of Employment

Services, in the amount of $500. On September 23, the court

denied the motion to dismiss the indictment for prosecutorial

vindictiveness. Thereafter, as the trial approached, Meadows

made two more repayments: $1,500 in October and $5,953 in

November 2014. By the time the trial began on December 17,

2014, the government had recouped the full $14,173, as it had

already recouped the rest by withholding Meadows’ tax refunds.

5

At trial, the prosecution’s theory was that Meadows

knowingly filed false unemployment claim forms online with

the Department of Employment Services and received $14,173

in unwarranted payments while working full time. The

government presented documentary evidence, including

Meadows’ timesheets from her job at FDA, print-outs of the

weekly claim forms she submitted to the Department, and bank

records detailing the benefits she received. It also called seven

witnesses.

The defense evidence consisted primarily of Meadows’

testimony. She acknowledged that, during the relevant period,

she worked full time in a temporary position at the FDA and

earned full-time wages. She further acknowledged that she

began filing weekly unemployment claims online the same week

she started her full-time job at FDA. Meadows testified that, at

the time she applied for and received unemployment benefits,

she believed she could work full time and earn full-time wages,

yet still submit claims for unemployment benefits. Meadows

said she thought she was eligible to do so because she was

working in a temporary position at FDA and was therefore still

actively seeking a permanent, full-time job. That, she said,

explained why she answered “no” to a question on the weekly

Department of Employment Services claim form that asked:

“Did you return to work full-time?” Trial Tr. 89-91 (Dec. 18,

2014).

On cross-examination, Meadows acknowledged that she

applied for and received $14,173 in unemployment benefits.

She was also asked about Question 2 on each weekly claim

form, which stated: “Did you perform work during the week

claimed? If yes, indicate gross earnings amount in box at right.”

Meadows said she answered “Yes” to that question and entered

the wages that she earned on each of the 49 weekly forms she

submitted to the Department. Id. at 90, 107. She was then

6

presented with documentary evidence showing that none of the

49 forms contained those answers in response to Question 2.

Meadows’ response was that a computer glitch must have

caused the same errors to appear on each of the 49 separate

forms she submitted online.

On December 22, 2014, a jury found Meadows guilty on all

six counts. At the subsequent sentencing hearing, the district

court found that Meadows had perjured herself with respect to

the purported computer “glitch,” willfully giving “false

testimony concerning her completion of the 49 claim forms in

this case.” Sentencing Tr. 14 (July 16, 2015). As a

consequence, the court increased Meadows’ U.S. Sentencing

Guidelines level by two and sentenced her to 36 months of

probation, with the condition that she serve 120 days in jail on

weekends. Id.

On appeal, Meadows raises claims of prosecutorial

vindictiveness and prosecutorial misconduct, to which we now

turn.

II

We begin with Meadows’ contention that the district court

erred in denying her pre-trial motion to dismiss the indictment

for prosecutorial vindictiveness. In her view, the government

obtained the six-count felony indictment in retaliation for her

“unexpected and burdensome assertions of [her] legal rights.”

Meadows Br. 17-18 (quoting United States v. Meyer, 810 F.2d

1242, 1247 (D.C. Cir. 1987)).

7

A

In United States v. Safavian, we set out the analysis this

Circuit follows in evaluating such a claim of prosecutorial

vindictiveness:

[T]he doctrine [of prosecutorial vindictiveness]

precludes action by a prosecutor that is designed to

penalize a defendant for invoking any legally protected

right available to a defendant during a criminal

prosecution. A defendant may prove prosecutorial

vindictiveness by submitting either (i) evidence of the

prosecutor’s actual vindictiveness or (ii) evidence

sufficient to establish a realistic likelihood of

vindictiveness, thereby raising a presumption the

Government must rebut with objective evidence

justifying its action. If the Government can produce

objective evidence that its motive in prosecuting the

defendant was not vindictive, then the defendant’s only

hope is to prove that the justification is pretextual and

that actual vindictiveness has occurred.

649 F.3d 688, 692 (D.C. Cir. 2011) (per curiam) (citations

omitted); see United States v. Gary, 291 F.3d 30, 34 (D.C. Cir.

2002); Maddox v. Elzie, 238 F.3d 437, 446 (D.C. Cir. 2001);

Meyer, 810 F.2d at 1245.

“To prove actual vindictiveness requires objective evidence

that the prosecutor’s actions were designed to punish a

defendant for asserting his legal rights. Such a showing is

normally exceedingly difficult to make.” Gary, 291 F.3d at 34

(emphasis added) (quoting Maddox, 238 F.3d at 446). “To

invoke the presumption of vindictiveness, we must find that a

reasonable likelihood of vindictiveness exists -- that is, that the

second indictment was ‘more likely than not attributable to the

8

vindictiveness on the part of’ the Government.” Id. (emphasis

added) (quoting Alabama v. Smith, 490 U.S. 794, 801 (1989)).

“[O]ur concerns over alleged vindictiveness do not relate to

whether a prosecutor has acted maliciously or in bad faith, but

whether a prosecutor’s actions are designed to punish a

defendant for asserting her legal rights.” Id. at 35.

Where the defendant provides evidence sufficient to support

a presumption of vindictiveness, the burden shifts to the

government to produce “objective evidence” that its motivation

in charging the defendant was lawful. Safavian, 649 F.3d at

694. That burden is “admittedly minimal -- any objective

evidence justifying the prosecutor’s actions will suffice.” Id. If

the government meets this burden, the defendant cannot prevail

unless she proves that the government’s justification was

pretextual. Id. at 692.

We review a district court’s findings regarding

vindictiveness only for clear error. See Gary, 291 F.3d at 34;

Meyer, 810 F.2d at 1244-45.

B

The district court concluded that the evidence did not

support a claim of actual vindictiveness in this case. “[T]here is

nothing on the face of the record,” the court held, “to show that

defendant’s prosecution was initiated to punish her for declining

to cooperate with the government or for exercising her

constitutional right to go to trial.” United States v. Meadows,

Crim. No. 14-0073, slip op. at 7 (D.D.C. Sept. 23, 2014).

Meadows does not contest this point on appeal.

Instead, Meadows proceeds on a theory of presumptive

vindictiveness, contending that the government obtained the six-

count felony indictment in retaliation for her “unexpected and

9

burdensome assertions of [her] legal rights.” Meadows Br. 17-

18 (quoting Meyer, 810 F.2d at 1247). The indictment was

brought, Meadows’ brief claims, because she “was a thorn in the

government’s side” in the following respects:

She repeatedly refused to cooperate in the homicide

investigation of her boyfriend and, according to the

government, hampered that investigation and

obstructed justice;

She -- according to the government -- bribed a

corrections officer in connection with the Concrete

Playground investigation and, when confronted,

refused to cooperate in that investigation; and

She allegedly smuggled contraband to her boyfriend in

the D.C. Jail while posing as an investigator for a

Public Defender’s Office and refused to cooperate in

his prosecution for that offense.

Meadows Br. 22. After she refused to cooperate, Meadows’

brief continues, the government “made two plea offers that [it]

unquestionably believed to be more than generous. The first

required a plea to a felony and a misdemeanor; the second

required only a plea to two misdemeanors. Neither required

cooperation in the prosecution of anyone else. But Meadows

stuck to her constitutional guns and rejected the offers.” Id. at

23 (citation omitted). This “contentious history,” the brief

maintains, “goes a long way to explain why [the prosecutor]

charged her with six felonies for conduct that,” the defense

claims, “is rarely prosecuted and routinely addressed

administratively.” Id. at 23-24.

The district court concluded that Meadows failed to present

sufficient facts to raise a “realistic likelihood,” Safavian, 649

10

F.3d at 692, of vindictiveness in this case. Meadows, slip op. at

7, 9-13. That conclusion was not clearly erroneous. As an

initial matter, the Supreme Court has “expressed doubt that in

the run-of-the-mill pretrial situation, the prosecutor would have

any reason to engage in vindictive behavior; the Court noted that

defendants routinely assert procedural rights prior to trial and

that prosecutors are unlikely to respond vindictively to this

everyday practice.” Meyer, 810 F.2d at 1247 (citing United

States v. Goodwin, 457 U.S. 368, 381 (1982)). Nothing in the

record suggests that we are “confront[ing] something other than

routine invocations of procedural rights” in this case. Meyer,

810 F.2d at 1247. To be sure, two plea offers were made and

rejected. But, as the Supreme Court held in Bordenkircher v.

Hayes, “in the ‘give-and-take’ of plea bargaining, there is no . . .

element of punishment or retaliation so long as the accused is

free to accept or reject the prosecution’s offer.” 434 U.S. 357,

363 (1978); see Goodwin, 457 U.S. at 378.1

Moreover, “so long as the prosecutor has probable cause to

believe that the accused committed an offense defined by

statute, the decision whether or not to prosecute, and what

charge to file or bring before a grand jury, generally rests

entirely in his discretion.” Bordenkircher, 434 U.S. at 364.

Meadows does not dispute that there was probable cause to

support the indictment in this case. Accordingly, absent unusual

circumstances, the government had “every right” to prosecute

Meadows for unemployment benefits fraud, regardless of

1

See also Goodwin, 457 U.S. at 382-83 (“This Court in

Bordenkircher made clear that the mere fact that a defendant refuses

to plead guilty and forces the government to prove its case is

insufficient to warrant a presumption that subsequent changes in the

charging decision are unjustified.”).

11

whether it could have prosecuted her for the jail-related

offenses. Gary, 291 F.3d at 34.2

As the district court held in this case, “there must be

something more for a presumption to arise.” Meadows, slip op.

at 10 (citing Meyer, 810 F.2d at 1246). Meadows claims that

there is “something more” here: she claims that she was

subjected to “disparate treatment.” Meadows Br. 18. It is

certainly true that “[s]electivity in the enforcement of criminal

laws is . . . subject to constitutional constraints,” and that, “[i]n

particular, the decision to prosecute may not be deliberately

based upon an unjustifiable standard such as race, religion, or

other arbitrary classification.” Wayte v. United States, 470 U.S.

598, 607 (1985) (quoting Bordenkircher, 434 U.S. at 364). And

“disparate treatment” among similarly situated defendants can

“give rise to a suspicion that the government discriminated

among the defendants.” Meyer, 810 F.2d at 1246.

But Meadows makes no claim of anything like disparate

treatment on the basis of race or religion. Instead, her claim is

that she was charged with a crime, unemployment benefits

fraud, that “is rarely prosecuted and routinely addressed

administratively.” Meadows Br. 24. While the district court

was “troubled by the general lack of similar prosecutions,”

Meadows, slip op. at 13, it certainly did not clearly err in

concluding that such disparate treatment was insufficient to

warrant a presumption of vindictiveness.

2

In 1931, the government famously prosecuted Al Capone for

income tax evasion rather than far more serious crimes that it might

have had difficulty proving. See LAURENCE BERGREEN, CAPONE: THE

MAN AND THE ERA (1994); see also THE UNTOUCHABLES (Paramount

Pictures 1987). At oral argument, defense counsel agreed that such a

prosecution would not be subject to dismissal as vindictive. Oral Arg.

Tr. 12-13.

12

To begin with, we agree with the district court that the

question in this case is nothing like that in United States v.

Meyer, the case that Meadows claims is most analogous. In

holding that the defendants presented sufficient evidence to

support a presumption of vindictiveness in Meyer, the court

emphasized that its holding was “limited to the precise

circumstances of th[e] case; in other cases, with different facts,

the presumption may not lie.” 810 F.2d at 1248. And the facts

in Meyer were unusual. The case began with the arrests of

approximately 200 political protesters outside the White House.

They were all charged with “demonstrating without a permit”

and presented with two options: plead guilty and pay a $50 fine,

or proceed to trial and risk a $500 penalty and six months in

prison. The government persuaded most -- but not all -- to plead

guilty and pay the $50 fine. When some of the demonstrators

opted to proceed to trial, however, the government brought an

additional charge solely against those who insisted on exercising

their trial rights. Id. at 1243-44.

The first thing to note about Meyer is that there the question

presented was whether the district court clearly erred in finding

prosecutorial vindictiveness. Id. at 1245. Here, the question is

whether the court clearly erred in not so finding. Thus, in this

case the deference arrow points in the opposite direction.

In Meyer, moreover, the causal link between the

defendants’ refusal to plead guilty and the prosecutor’s decision

to “up the ante” by adding an additional charge was sufficient to

support a “realistic likelihood of vindictiveness.” Id. at 1246.

In this case, by contrast, the claim of a causal link between

Meadows’ felony indictment and her allegedly protected

conduct is undermined by several facts. Neither of the two

preceding plea offers were conditioned on Meadows’

cooperation with the government; indeed, the government had

obtained convictions in the jail contraband case before Meadows

13

rejected those offers. Meadows, slip op. at 12. And while in

Meyer the government had a “strong incentive to try to keep

clear of th[e] courtroom morass” that would have occurred at a

trial of dozens of protesters, 810 F.2d at 1247, there was no

similar incentive here.

In Meyer there was also no doubt that all of the defendants

were similarly situated. They all “participated in the same

demonstration and conducted themselves in the same manner.”

Id. at 1246. Yet, only those “who chose to go to trial faced two

charges, whereas the other defendants confronted only one.” Id.

Meadows’ claim of disparate treatment is substantially weaker.

She initially asked the district court to consider a list of 117

unemployment fraud cases that, she told the court, arose during

the three years prior to her own indictment, involved

overpayments of similar amounts of money, and yet did not

result in criminal charges. See Def.’s Ex. 1 (A. 116-23). The

district court found, however, that “only about 41 of the 117

cases . . . were actually referred by [the Department of

Employment Services] for prosecution,” and hence only those

41 were even relevant for consideration as comparators of

disparate treatment by the prosecutors. Meadows, slip op. at 11

n.5. And the court further noted that there was no evidence at

all regarding the circumstances of those 41 cases; hence, it could

not determine whether those defendants were similarly situated

to Meadows. Id. at 11. (Meadows herself acknowledged that at

least four cases involving unemployment fraud were in fact

prosecuted within 10 years preceding her indictment. See id. at

11-12.) We thus find no clear error in the court’s rejection of

Meadows’ claim that her allegedly “disparate treatment” gave

rise to a presumption of vindictiveness.

Finally, even if a presumption of vindictiveness were

warranted, the district court concluded that the government’s

objective evidence justifying its charging decision was sufficient

14

to overcome such a presumption. Id. at 14-16. Again, we find

nothing like clear error. The district court reasonably found that

the government’s evidence regarding the severity of Meadows’

fraudulent conduct -- which “continued for approximately a

year, involved two separate false filing schemes, and resulted in

approximately 49 false claims,” id. at 15 -- was sufficient to

satisfy this court’s “admittedly minimal” requirement of “any

objective evidence,” Safavian, 649 F.3d at 694. The court also

reasonably relied on the government’s belief that Meadows

“participated in the contraband scheme -- another act of

dishonesty -- at the same time that she was allegedly engaged in

unemployment fraud.” Meadows, slip op. at 15.

Accordingly, assuming arguendo that a presumption of

vindictiveness were warranted, the district court rightly

concluded that the government met its burden of producing

objective evidence justifying the prosecution’s charging

decisions. Under those circumstances, “the defendant’s only

[remaining] hope [was] to prove that the justification [was] pre-

textual and that actual vindictiveness ha[d] occurred.” Safavian,

649 F.3d at 692 (citation omitted). Because Meadows offered

no such evidence that the court had not already reasonably

rejected, we affirm the denial of her motion to dismiss the

indictment.

III

We turn next to Meadows’ contention that two alleged

instances of prosecutorial misconduct prejudiced the outcome of

her trial. One was the prosecutor’s references to the district

court’s denial of Meadows’ motion to dismiss the indictment.

The other was the prosecutor’s reference to the probability that

the “computer glitch” about which Meadows speculated could

have occurred.

15

A

Over the government’s objection, the district court

permitted Meadows to introduce evidence showing that, by the

time the trial began in December 2014, the Department of

Employment Services had already recouped the full $14,173 it

had overpaid her. Although the district court deemed the

relevance of this evidence “marginal,” the court admitted it,

subject to a jury instruction that repayment was not a defense.

Trial Tr. 70 (Dec. 18, 2014). But the district court made clear --

both before Meadows took the stand and again in two bench

conferences during her testimony -- that on cross-examination

“[t]he door is going to be open” to questions from the

government about the “chronology” of events. Id. at 70, 72; see

also id. at 123-35, 131. The questions the court expected the

government to ask, it said, would be aimed at showing that

Meadows “wouldn’t have repaid [the government] but for the

charge,” id. at 75, and “didn’t write a check until after there was

a ruling” denying her motion to dismiss, id. at 70-71.

On cross-examination, the prosecutor did just what the

district court predicted. He confronted Meadows with the fact

that, between February 2011 when she first became aware of the

overpayments, and August 2014 when the district court denied

her motion to dismiss Count 5 of the indictment, she did not

make voluntary repayments. Pressing the point, the prosecutor

asked, and the defense counsel objected, as follows:

Q. And, in fact, . . . in August of 2014, you, through

your lawyer, filed a motion to dismiss this case, isn’t

that right?

A. Yes.

Q. And the judge denied that motion, isn’t that right?

A. Yes.

16

Q. And, in fact, there were two such motions, is that

correct?

A. I don’t know.

Q. One had to do with Count 5?

[DEFENSE COUNSEL]: Objection.

THE COURT: Ye[s], let’s not talk about what it had

to do with. That’s all legal matters.

Id. at 132. The prosecutor made three additional references to

the motion during cross-examination, each aimed at illuminating

the same point: that Meadows did not make an effort to repay

the government until the district court declined to dismiss Count

5. See id. at 132-33, 134, 146.

Beyond the above-quoted objection to whether one of the

motions involved Count 5, defense counsel did not

contemporaneously object to any of these lines of questioning.

Following Meadows’ testimony, however, her counsel requested

a jury instruction to address the prosecutor’s references to the

denial of the dismissal motion, arguing that, in “add[ing] in

[that] the court denied it,” the prosecutor may have created “the

possibility that [the denied motion] had something to do with

guilt or innocence.” Id. at 160-61. In response to this request,

the judge instructed the jury that the denied motion “related to

a legal question” and her ruling “had nothing to do with the guilt

or innocence of Ms. Meadows or the merits of the case; that is

the matter that is being submitted to you.” Id. at 164. The judge

further instructed the jury to “draw no inferences one way or the

other with respect to the questions that you have to consider that

I denied a motion to dismiss on some other legal question.” Id.

at 165.

During closing rebuttal argument, the prosecutor referred to

the denied motion twice more, including in summing up the

17

government’s position on the repayment issue. Trial Tr. 91, 95

(Dec. 22, 2014). The prosecutor stated:

The bigger point with regards to all of this is that these

final payments, August, October, November, when she

is actually trying to make repayment, comes after the

Judge . . . refused to dismiss the case.

That’s the context in which she makes those payments,

no[t] for some year-long effort to try to do right or do

good or make repayment. It’s a last ditch effort to try

to make [her] look good in front of you all, the ladies

and gentlemen of this jury.

Id. at 95. Defense counsel did not object; nor did the district

court intervene. Echoing both its opening and mid-trial

instructions to the jury, however, the court restated in its final

instructions that the jury should “not take anything I may have

said or done as indicating how I think you should decide this

case.” Id. at 103.

On appeal, Meadows contends that, by referring to the

district court’s decision to deny her motion to dismiss, the

prosecutor left the jury with the incurable impression that “the

judge believed that Meadows was guilty, or at a minimum,

believed the government’s version of events.” Meadows Br. 31.

That was not the nature of the objection defense counsel made

during Meadows’ testimony, however. There, the sole

contemporaneous objection (as set out above) was to a question

about the content of the motion to dismiss. Trial Tr. 132 (Dec.

18, 2014). The district court sustained that objection, and it is

not at issue on appeal.

Because Meadows did not contemporaneously object to the

line of questions, her one objection is insufficient to preserve her

18

claim on appeal “that the entire line of questioning was

improper.” United States v. McGill, 815 F.3d 846, 876-77 (D.C.

Cir. 2016) (per curiam) (internal quotations marks omitted).

Accordingly, our review is for plain error only. See FED. R.

CRIM. P. 52(b); United States v. Morton, 391 F.3d 274, 276-77

(D.C. Cir. 2004) (holding that, when “an appellant failed to raise

a contemporaneous objection at trial,” a defendant “must

demonstrate that the trial court committed [] plain error”).

Under that standard, “there must be (1) error, (2) that is plain,

and (3) that affects substantial rights. If all three conditions are

met, an appellate court may then exercise its discretion to notice

a forfeited error, but only if (4) the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings.”

Johnson v. United States, 520 U.S. 461, 467 (1997) (citations

and alterations omitted); see FED. R. CRIM. P. 52(b). In most

cases, to affect the defendant’s substantial rights, “the error must

have been prejudicial: It must have affected the outcome of the

district court proceedings.” United States v. Olano, 507 U.S.

725, 734 (1993). Under the plain-error standard, it “is the

defendant rather than the Government who bears the burden of

persuasion with respect to prejudice.” Id.

For purposes of this discussion, we will assume that the

government’s references to the denial of the motion to dismiss

constituted error. There is, however, reason to doubt such an

assumption. The court warned Meadows that her effort to

portray herself as making good-faith repayment would open the

door to cross-examination intended to show that she “didn’t

write a check until after there was a ruling . . . in this case.”

Trial Tr. 71 (Dec. 18, 2014). Meadows proceeded nonetheless,

and in so doing “opened the door” for questions designed “to

prevent the jury from being misled.” United States v. Powell,

334 F.3d 42, 48 (D.C. Cir. 2003); see United States v. Fonseca,

435 F.3d 369, 375 (D.C. Cir. 2006); Griffin v. Washington

Convention Ctr., 142 F.3d 1308, 1312 (D.C. Cir. 1998).

19

But even if the references to the denied motion to dismiss

were erroneous, any error here was not “plain.” For an error to

be “plain,” it must be “clear” or “obvious.” Olano, 507 U.S. at

734. That requires either “controlling precedent on the issue or

some other absolutely clear legal norm.” United States v.

Williams, 773 F.3d 98, 105 (D.C. Cir. 2014) (citation omitted);

see United States v. Nwoye, 663 F.3d 460, 466 (D.C. Cir. 2011);

In re Sealed Case, 573 F.3d 844, 851 (D.C. Cir. 2009). And no

such precedent or legal norm bars prosecutors from eliciting

testimony about a dismissal motion when a defendant opens the

door in the manner that Meadows did.

Nor did the references to the denied motion prejudice

Meadows because any prejudice was extinguished by the district

court’s instructions. As noted above, Meadows’ contention is

that those references left the jury with the impression that “the

judge believed that Meadows was guilty, or at a minimum,

believed the government’s version of events.” Meadows Br. 31.

But the court expressly instructed the jury, immediately after the

prosecutor’s references, that the denied motion “related to a

legal question” and “had nothing to do with the guilt or

innocence of Ms. Meadows or the merits of the case; that is the

matter that is being submitted to you.” Trial Tr. 164 (Dec. 18,

2014). And in both its mid-trial and final instructions, the

district court further warned the jury against drawing any

inferences from its actions. See id. at 164-65 (“[Y]ou should

draw no inferences one way or the other with respect to the

questions that you have to consider that I denied a motion to

dismiss on some other legal question.”); Trial Tr. 103 (Dec. 22,

2014) (“You may not take anything I may have said or done as

indicating how I think you should decide this case.”). This court

has consistently reaffirmed the principle that “[t]he jury is

presumed to follow the instructions” it is given. United States

v. Hall, 610 F.3d 727, 742 (D.C. Cir. 2010) (citing Greer v.

20

Miller, 483 U.S. 756, 766 n.8 (1987)). And there is no reason to

think otherwise in this case.

B

Meadows’ second misconduct claim is that the prosecutor

made a “probability” analysis during closing rebuttal that

prejudiced the outcome of her trial. See Meadows Br. 33-46.

Meadows’ defense to the charge of fraudulent payment was that

she did, in fact, report both her full-time FDA job and her

earnings on each of the weekly claim forms she submitted to the

Department of Employment Services. Specifically, Meadows

testified that, in response to Question 2 on each of the 49 weekly

forms she submitted online, she answered “Yes” to whether she

had “perform[ed] work” during the preceding week and entered

“the weekly wages that [she] earned.” Trial Tr. 90, 107 (Dec.

18, 2014). On cross-examination, she was confronted with

documents showing that the reports the government received did

not contain those answers. Meadows responded that a computer

glitch must have caused the same error to appear on each of the

49 separate forms she submitted. She presented no evidence to

corroborate that claim.

In his closing rebuttal argument, the prosecutor attacked the

plausibility of Meadows’ suggestion that there must have been

a computer glitch. To that end, the prosecutor asked the jury:

“What are the odds that this magical computer glitch could

affect Ms. Meadows, and Ms. Meadows alone, 49 weeks in a

row, given what you’ve heard in this case?” Trial Tr. 79 (Dec.

22, 2014). After walking through the evidence and saying that

the likelihood of such an error was “[o]ne in nearly 60 million,”

the prosecutor added that he was “speak[ing] broadly” and that

“the odds are astronomical that this could ever have taken

place.” Id. at 81. “[I]t is in the extreme, it is absurd, because

it’s just not reality.” Id.

21

On appeal, Meadows objects to the prosecutor’s discussion

of “probability,” Meadows Br. 19, in his closing rebuttal. She

concedes that she did not object to the discussion in the district

court. Accordingly, our review is again for plain error only. See

Meadows Br. 34 & n.10 (“The defense made no objection to this

argument, and this Court therefore reviews for plain error.”); see

also FED. R. CRIM. P. 52(b).3

Meadows’ principal contention is that the prosecutor’s “one

in nearly 60 million” figure was not supported by trial evidence.

In context, however, that figure was nothing more than a

rhetorical flourish (“astronomical!”, “absurd!”) to the

prosecutor’s argument that it was unlikely that a computer glitch

-- rather than the defendant’s actions -- could explain the

responses that appeared on Meadows’ weekly claim forms.

Meadows has not shown that reasonable jurors would have

understood the prosecutor’s statement otherwise, and thus has

not shown that it “affected the outcome of the district court

proceedings,” Olano, 507 U.S. at 734, or that it “seriously

affect[ed] the fairness, integrity, or public reputation of judicial

proceedings,” id. at 736 (citation omitted).

Meadows also contends, more broadly, that “statistical

arguments should most likely never be used to argue a

defendant’s guilt in a criminal trial, and if such arguments are

going to be used, they need to be presented through a properly

qualified expert.” Meadows Reply Br. 14. Because the

prosecutor’s rhetoric did not amount to a “statistical argument,”

those contentions fail. In any event, there is again no

“controlling precedent . . . or . . . other absolutely clear legal

norm” on either issue, Williams, 773 F.3d at 105. See Meadows

3

Because our review is for plain error only, the balance of this

opinion is not intended to suggest that the prosecutor’s argument was

proper. Rather, we hold only that it did not constitute plain error.

22

Reply Br. 14 (stating that the question of whether a statistical

argument is permissible is “of first impression in this Circuit”);

Oral Arg. Tr. 24-25 (acknowledging that whether such an

argument must be offered through expert testimony is “a case of

first impression”).

Finally, Meadows contends that the prosecutor’s “one in

nearly 60 million” statement “redefine[d] ‘proof beyond a

reasonable doubt’” and therefore diluted the government’s

burden of proof. Meadows Br. 42. As defense counsel

conceded at oral argument, however, the prosecutor never

related his rhetoric to the proof-beyond-a-reasonable-doubt

standard, as the prosecutor expressly did in the only case upon

which Meadows relies. Oral Arg. Tr. 22; see Commonwealth

v. Ferreira, 955 N.E.2d 898, 904 (Mass. 2011) (holding that the

prosecutor erred in “equating proof beyond a reasonable doubt

with a numerical percentage of the probability of guilt”).

Although we find no plain error in this case, we do caution

the government that there is a considerable risk of error -- and

prejudice -- when a prosecutor attempts to offer a true statistical

analysis, unsupported by expert testimony, in closing argument.

Moreover, if a defense counsel contemporaneously objects, then

it is the government that will bear the burden of proving that the

error did not prejudice the defendant. Olano, 507 U.S. at 734.

IV

For the foregoing reasons, the judgment of the district court

is affirmed.

So ordered.

ROGERS, Circuit Judge, concurring in part and concurring

in the judgment. Meadows has challenged three rulings by the

district court: denial of her motion to dismiss the indictment as

the product of vindictive prosecution; allowing the government,

during Meadows’ cross examination, to refer to that denial; and

allowing the government to make an improper closing argument

based on mathematical probability. I concur in the court’s

disposition of her second challenge. Op. 14-20. As to her first

and third challenges, I concur in part. For the first challenge, the

court need only decide, assuming a presumption of

vindictiveness, whether the government has satisfied its

“minimal” burden to offer “any objective evidence justifying the

prosecutor’s actions,” United States v. Safavian, 649 F.3d 688,

694 (D.C. Cir. 2011); it has, and Meadows does not contend she

provided any evidence of “actual vindictiveness,” see United

States v. Meyer, 810 F.2d 1242, 1245 (D.C. Cir. 1987). See Op.

13-14. My analysis of her third challenge differs from that of

the court. Given well settled law, the prosecutor’s probability

theory first presented in rebuttal closing argument to the jury

cannot be excused as merely a “rhetorical flourish.” Op. 21. In

the absence of evidence to support the theory as presented, the

error was “plain.” United States v. Olano, 507 U.S. 725, 734

(1993). I nevertheless concur in the judgment because Meadows

fails to show the requisite prejudice to obtain reversal of her

convictions.

I.

The court affirms the district court’s ruling that there was

not a realistic likelihood of vindictiveness because nothing more

is involved than a “run-of-the-mill pretrial situation,” see Op. 10

(quotation omitted), and because Meadows’ “disparate

treatment” argument lacked merit, id. at 13. This court recently

acknowledged again that Supreme Court precedent leaves little

room for a defendant to demonstrate prosecutorial

vindictiveness at the pretrial stage. See United States v. Slatten,

2

Slip. No. 15-3078, at 47 (D.C. Cir. Aug. 4, 2017) (citing United

States v. Goodwin, 457 U.S. 368 (1982)). Still, it is unclear

Meadows’ circumstances involved no more than a run-of-the-

mill situation.

In explaining the government’s decision to charge Meadows

with six counts of unemployment fraud, the Assistant United

States Attorney told the district court judge that all other

suspects involved in the D.C. Jail contraband scheme “have

either been found guilty or plead [sic] guilty. We have just one

person – Ms. Meadows – who’s still hanging out there . . . . We

can’t just walk away from that.” Hearing Tr. 22 (Aug. 12,

2014). Additionally, Meadows presented evidence that the

United States Attorney’s Office rarely prosecutes unemployment

fraud; her case was the single unemployment fraud prosecution

in four years even though the D.C. Department of Employment

Services had referred more than 30 cases to the Office for

prosecution involving amounts greater than the $14,173

Meadows owed. See Def.’s Ex. 1 (A. 116-23). True, Meadows

did not show she was treated differently from others who

“participated in the same [offense] and conducted themselves in

the same manner.” Cf. Op. at 13 (quoting Meyer, 810 F.2d at

1246). But the issue is whether “all of the circumstances, when

taken together, support a realistic likelihood of vindictiveness.”

Meyer, 810 F.2d at 1246.

Here, the circumstances could suggest that the prosecutor

had a “personal stake in [obtaining a] conviction and [a]

motivation to engage in self-vindication.” Safavian, 649 F.3d at

692 (quoting United States v. Stanfield, 360 F.3d 1346, 1362

(D.C. Cir. 2004)). In addition to the government’s indictment

of Meadows for obstruction of justice when she repeatedly

refused to cooperate in the investigation of her boyfriend for

murder, prosecutorial frustration was evident from Meadows’

refusal to plead to the contraband charges. Arguably it was

3

evident as well from the Office’s pursuit of rarely prosecuted

unemployment fraud charges. Indeed, the district court judge

inquired, if the government was so interested in punishing

Meadows for her role in the contraband scheme, then “why do

you not charge her with that?” Hearing Tr. at 22 (Aug. 14,

2014) (emphasis added).

But even assuming that Meadows established a presumption

of vindictiveness as to the unemployment fraud charges, see Op.

13-14, the government offered objective evidence, see Safavian,

649 F.3d at 694, that its charging decision was based on a

different “act of dishonesty” by Meadows, Op. 14 (quoting

Mem. Op. 15), rather than Meadows’ repeated invocation of her

legal rights in the contraband scheme or murder investigation.

For this reason, I concur in holding her prosecutorial

vindictiveness challenge fails.

II.

The prosecutor’s error in rebuttal closing argument is not so

easily dismissed. First, it is well established that counsel may

not argue facts that are not supported by evidence before the

jury. United States v. Maddox, 156 F.3d 1280, 1282 (D.C. Cir.

1998) (collecting cases). Recently the court repeated “that the

prosecutor may not refer in the opening or closing statement to

evidence not admitted at trial.” United States v. Davis, Slip No.

15-3044, at 9 (D.C. Cir. July 21, 2017) (quoting United States v.

Valdez, 723 F.3d 206, 209 (D.C. Cir. 2013)); see also United

States v. McGill, 815 F.3d 846, 916 (D.C. Cir. 2016) (quoting

United States v. Jones, 482 F.2d 747, 753 (D.C. Cir. 1973)).

The reason is self-evident if a defendant is to receive a fair trial

and justice be done. See Berger v. United States, 295 U.S. 78,

88 (1935). Consequently, repeated prosecutorial overreaching

during rebuttal closing arguments to the jury is disheartening.

See, e.g., United States v. Williams, 836 F.3d 1, 11-12 (D.C. Cir.

4

2016); McGill, 815 F.3d at 918-19; United States v. Becton, 601

F.3d 588, 593-94, 598 (D.C. Cir, 2010); United States v.

Williams, 212 F.3d 1305, 1310-11 (D.C. Cir. 2000). Second, as

the last word the jury hears from the parties, the government’s

rebuttal closing argument can be appropriately forceful in

responding to the defendant’s closing argument. At the same

time and for the same reason, “the potential for prejudice from

an impermissible [rebuttal] closing statement is heightened.”

Davis, No.15-3044, at 20 (citing United States v. Holmes, 413

F.3d 770, 776 (8th Cir. 2005) (collecting cases)). When counsel

for the parties confine their remarks to the evidence admitted at

trial, and reasonable inferences therefrom, the justice system

should work as intended. But when, as here, the rebuttal closing

argument launches into new terrain and the sandbagging of the

defendant is evident, a court must evaluate the likely prejudice

to a defendant with considerable care. See McGill, 815 F.3d at

918; cf. United States v. Moore, 651 F.3d 30, 50-51 (D.C. Cir.

2011).

Today the court takes the position that the prosecutor’s use

of numbers to calculate probability during rebuttal closing

argument was merely a “rhetorical flourish.” Op. 21. But cf.

Davis, No. 15-3044, at 20 (quoting United States v. Monaghan,

741 F.2d 1434, 1440 (D.C. Cir. 1984)). Perhaps had the

Assistant U.S. Attorney told the jury in rebuttal closing argument

that “there is a one in a ga-zillion chance,” or even “a one in a

billion chance,” that the computer glitch occurred as Meadows

testified, then a court might dismiss her objection as a grandiose

or a stylistic form of rhetoric. But that is not what occurred at

Meadows’ trial. During rebuttal closing argument, the

prosecutor introduced his probability theory in a deliberate and

detailed manner, presenting a step-by-step calculation for the

jury in attacking Meadows’ defense. Trial Tr. 79-81 (Dec. 22,

2014). To determine “the odds” that a computer glitch affected

Meadows and only Meadows, the prosecutor told the jury that

5

first, he multiplied the 49 weeks that Meadows applied for

unemployment by the 20,000 claims submitted each week.

Second, that he multiplied that number by the “61 key strokes

that Ms. Meadows had to make as she sits at her computer

entering her name, the Social Security number, the week ending

days, her e-mail address, plus the six questions [concerning her

eligibility].” Third, that he found a “one in nearly 60 million”

chance by dividing 1 by the product of the multiplication at the

first two steps. As presented, the prosecutor’s probability theory

was more like an indisputable mathematical formula than a

permissible rhetorical flourish supported by the evidence. Yet

because the theory was unsupported by evidence, the

prosecutor’s argument was impermissible under well-settled

controlling precedent, see supra at 3, making the error “plain,”

see United States v. Williams, 773 F.3d 98, 105 (D.C. Cir. 2014)

(citation omitted). Further, the prosecutor’s statements on

probability were both flawed and presented for the first time

during rebuttal closing argument.

Implicitly, the prosecutor’s calculation assumed that no

other glitches of any kind for any other applicant occurred during

the relevant 49-week period. Yet no such evidence was before

the jury. At most, a software technician at the Department of

Employment Services testified that he was unaware of any

widespread computer problems and thought a systemic problem

would have been uncovered during the annual audit. Trial Tr.

32-33, 40-41 (Dec. 18, 2014). But a lack of widespread

problems would not invariably mean no other errors occurred in

the computer system. Indeed, problems with the computer

system and website were apparently common enough for the

Department to establish a streamlined process for applicants to

submit “ticket[s]” to report computer problems to the technicians

who were to “fix[] [such] issues” as they arose. Id. at 40-41.

Because the Department deletes records of specific computer

problems after three years, no records were before the jury on the

6

number of computer errors in 2009 when Meadows was

submitting claims. Trial Tr. 175 (Dec. 17, 2014).

Additionally, the prosecutor’s calculation based on no

evidence presented a risk of juror confusion. The prosecutor

purported to determine “the odds” that a glitch had occurred as

Meadows described. Trial Tr. 79 (Dec. 22, 2014). What he

really did, however, was assume that a glitch occurred as

Meadows described and that no other glitches occurred during

that time, and then calculate the error rate based on those

assumptions. Oral Arg. 34:07–36:28. Given the subtle

distinctions between error rates and the probability an error

occurred, and the consequent potential for juror confusion, it

may well be that any “analysis of mathematical probability . . .

must be offered through expert testimony.” Commonwealth v.

Ferreira, 955 N.E. 2d 898, 903 (Mass. 2011); see Op. 22. None

was offered at Meadows’ trial, and no other evidence supported

the prosecutor’s newfound theory and its assumptions.

The government responds that the standard jury instructions

at the end of the trial before the jury retired to deliberate

“alleviated any potential prejudice arising from the prosecutor’s

mathematical argument.” Appellee’s Br. 70. The standard

instruction does inform the jury that arguments of counsel are not

evidence. Such generic instructions are not inevitably “a cure-all

for an erroneous statement.” United States v. Hall, 610 F.3d 727,

742 (D.C. Cir. 2010). Here, the jury “instructions d[id] not

address the prosecutor’s error in [rebuttal] closing argument, and

the error affect[ed] a central issue,” namely Meadows’ defense

to the charges. United States v. Williams, 836 F.3d 1, 16 (D.C.

Cir. 2016) (quoting United States v. Watson, 171 F.3d 695, 702

(D.C. Cir. 1999)).

Nevertheless, Meadows has not met her burden to show

prejudice under a plain error standard of review. The

7

government’s case against her was hardly close; it was

overwhelming. Put otherwise, the error did not affect the

outcome of her trial. See United States v. Gartmon, 146 F.3d

1015, 1026 (D.C. Cir. 1998). Meadows’ testimony about a

computer glitch causing her false responses on 49 occasions was

facially dubious absent any supporting evidence. The software

technician testified that the “glitch” she described would have

been “an error in programming and . . . more systemic than just

a one-off occurrence,” Trial Tr. 180 (Dec. 17, 2014); no evidence

showed an audit had uncovered such a computer problem. At

sentencing, the district court judge even found that Meadows had

perjured herself. Sent. Hg. Tr. 12-13 (July 16, 2015).

Regardless, based on the evidence before the jury, there is no

basis on which the court could conclude that the prosecutor’s

probability theory affected a reasonable jury’s rejection of

Meadows’ bare assertion that she was the repeated victim of a

computer glitch.

Accordingly, I concur in part and I concur in the judgment

affirming Meadows’ convictions.