United States v. Gartmon, Richard L.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 9, 1997 Decided July 14, 1998

No. 96-3102

United States of America,

Appellee

v.

Richard Lamont Gartmon,

Appellant

Appeal from the United States District Court

for the District of Columbia

(No. 95cr00271-01)

Paul L. Knight, appointed by the court, argued the cause
and filed the briefs for appellant.

James E. Boasberg, Assistant U.S. Attorney, argued the
cause for appellee, with whom Eric H. Holder, Jr., U.S.
Attorney at the time the brief was filed, John R. Fisher, Roy
W. McLeese, III, Katherine Winfree, and Douglas F. Gan-
sler, Assistant U.S. Attorneys, were on the brief.

Before: Edwards, Chief Judge, Henderson and Garland,
Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland.

Garland, Circuit Judge: Appellant Richard Gartmon was
convicted of interstate transportation of securities obtained
by fraud and of money laundering in connection with a
scheme to defraud the George Washington University Health
Plan. Gartmon challenges his convictions on the grounds
that: (1) the trial court improperly admitted evidence of his
physical and verbal intimidation of a confederate; (2) the
prosecution made improper statements during closing argu-
ments; (3) the trial court erred in not declaring a mistrial
after federal agents spoke with an excused alternate juror
who subsequently was re-empaneled; and (4) the evidence
was insufficient to establish venue in the District of Columbia
on most of the money laundering counts. He also contends,
and the government agrees, that the sentence he received on
the money laundering counts exceeds the maximum permitted
by statute. We affirm Gartmon's convictions against all of his
challenges and remand the case for correction of the sen-
tence.

I

On December 11, 1995, a grand jury in the District of
Columbia indicted Gartmon, Donna Rouse, and Pamela Glas-
coe on charges of interstate transportation of securities taken
by fraud, in violation of 18 U.S.C. s 2314, and of money
laundering, in violation of 18 U.S.C. s 1956(a)(1).1 Gartmon
and Rouse proceeded to trial, while Glascoe pled guilty and
testified for the United States.

According to the government's evidence, Pamela Glascoe
first met Richard Gartmon in November 1994. At the time,
Glascoe worked as a secretary in the marketing and sales
department of the George Washington University Health

__________
1 Gartmon, alone, was also charged with subornation of perjury,
in violation of 18 U.S.C. s 1622. The jury acquitted Gartmon on
that charge.

Plan (GWUHP or George Washington), a health maintenance
organization located in Bethesda, Maryland. Among other
activities, Glascoe's department sponsored various health-
related special events.

Gartmon and Glascoe soon began dating. The morning
after their first date, Gartmon asked Glascoe for money to
invest, and shortly before Christmas she gave him $850.
When she asked him to return some of the money in order to
buy her daughter Christmas presents, he told her she was not
a "woman of execution" and asked her whether there was a
way she could get more money for him. Glascoe then told
Gartmon about the special events GWUHP sponsored, and
Gartmon proposed the idea of a "hair show"--a competition
between hair salons. When Glascoe was unable to secure
GWUHP's sponsorship of such an event, Gartmon again
criticized her failure of "execution." On her own, Glascoe
then submitted a forged request to GWUHP for a $12,500
check, payable to Gartmon, for a fictitious "run-a-thon."
George Washington's finance department cut the check and
Glascoe delivered it to Gartmon.

Although Glascoe told Gartmon she did not want to submit
any more fraudulent check requests to GWUHP, in early
January he again told her he needed money to invest. Gart-
mon provided the names of suggested payees including co-
defendant Rouse--all former or current girlfriends of his,
with the exception of one payee who was a cousin--and
Glascoe forged the authorizing signatures on the check re-
quests. After the initial "run-a-thon" check, Glascoe submit-
ted eight more check requests from January to March 1995,
in amounts ranging from $3,600 to $8,600. After receiving
the checks, she delivered them to Gartmon, who in turned
delivered them to the payees. The payees cashed the
checks--one at a bank in the District of Columbia, the rest at
banks in the suburbs--and gave the money to Gartmon.

Gartmon and Glascoe also developed a second scheme to
defraud George Washington. Gartmon procured blank in-
voices from a printing company called Underground Printing,
and Glascoe filled out and submitted the invoices requesting

payment from George Washington for the performance of
fictitious printing services. Pursuing this scheme from Janu-
ary to March, 1995, Glascoe obtained eight additional
GWUHP checks, in amounts ranging from $16,825.80 to
$84,603.40. At Gartmon's instruction, Glascoe made Rouse
the payee on all of the checks. Glascoe delivered the checks
to Gartmon, and all were deposited in a bank account in
Rouse's name. One of the checks was deposited in the
District of Columbia; the rest were deposited in the suburbs.
All of the GWUHP checks involved in both schemes were
drawn on an account GWUHP maintained with Riggs Nation-
al Bank of Washington, D.C., which processed all checks
cashed outside of the District of Columbia at its operations
center in the District.

In late February 1995, in the midst of these schemes,
Glascoe called Gartmon from work and told him she did not
want to continue defrauding her employer. Gartmon asked
her to leave work and come to his house because he was sick
and needed medicine. According to her testimony, when she
arrived and entered his bedroom, Gartmon "told me to take
off my clothes and lay down in the bed with my head at the
foot of the bed.... [H]e . . . told me to open up my legs and
he put a gun up my vagina.... He told me that I will listen
to everything he says and do as he says." Trial Tr. 353-54
(Mar. 14, 1996). Thereafter, Glascoe continued to submit
fraudulent check requests to GWUHP.

Gartmon used the money obtained from George Washing-
ton to purchase a hair salon, three sports cars, and a Jacuzzi
and gazebo for his house--putting title in the names of other
people or using checks drawn on the Rouse account. He also
used two Rouse checks to loan $30,000 to an acquaintance,
Sandra Yates, in exchange for cash repayment (with $4,500 in
interest) within two months. Some time later, Yates met
with Gartmon in a parking lot to discuss another loan. He
told her to get in his car, and then drove away so quickly as
to frighten her. When they reached Gartmon's home, he
asked her to lift her skirt so he could determine whether she
was wearing a "wire" for recording the conversation. He
then warned her that if she were setting him up, he would kill
her.

In March 1995, George Washington fired Glascoe after
discovering that she was forging check requests. After
speaking with the FBI, Glascoe agreed to tape-record tele-
phone conversations with Gartmon. In the taped conversa-
tions, Gartmon implicated himself and used profane and
abusive language. Eight of the conversations were admitted
into evidence and played to the jury.

Gartmon did not testify in his own behalf. Instead, he
called two employees from the hair salon he purchased, who
testified that in the spring of 1995 they recalled meeting with
a woman from GWUHP regarding health insurance. Gart-
mon also called a comedian who testified that he performed at
a hair show in Maryland in late 1994 or early 1995, and that
he heard the show was sponsored by GWUHP. Finally,
Gartmon called his mother and sister to testify that they had
seen Glascoe in the presence of three of Gartmon's children.
The latter testimony was offered to impeach Glascoe who had
testified that she thought Gartmon had only one child. In
closing argument, defense counsel contended that Gartmon
did not know Glascoe had obtained the GWUHP checks by
fraud, and that Glascoe perpetrated the fraud on her own in
order to benefit from the money Gartmon received.

II

Gartmon challenges the trial court's admission of Glascoe's
testimony regarding the gun incident in his bedroom, and its
admission of the telephone conversations tape-recorded by
Glascoe. Admission of this evidence, he contends, violated
Federal Rule of Evidence 403, which states: "Although rele-
vant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair preju-
dice...." The standard of review applicable to these deter-
minations by the district court is abuse of discretion. See Old
Chief v. United States, 117 S. Ct. 644, 647 n.1, 651 n.7 (1997).
It is a standard we apply "most deferentially." United States
v. Rezaq, 134 F.3d 1121, 1137 (D.C. Cir. 1998), petition for
cert. filed, No. 97-9019 (May 7, 1998). We find no such abuse
here.

A

With respect to the gun incident, Gartmon contends both
that the court never conducted any balancing of the incident's
probative value and prejudice, and that if it had, admission of
Glascoe's testimony would have come out on the short end of
such a balance.

Gartmon's first contention is wrong on the facts because
the district court plainly did conduct a balancing. Prior to
trial, Gartmon filed a motion in limine seeking to exclude this
evidence on the ground that it violated Rule 403, as well as on
the ground that it violated Federal Rule of Evidence 404(b),
which bars evidence of other crimes offered to prove a
defendant's character "in order to show action in conformity
therewith." The district court conducted a hearing, which
explored both the Rule 404(b) question and the question of
the incident's probative value and potential prejudicial effect
under Rule 403. Citing our decision in United States v.
Allen, 960 F.2d 1055, 1058 (D.C. Cir. 1992), the district court
ruled that the evidence did not fall within the coverage of
Rule 404(b) because it was not an "other crime," but instead
was "inextricably intertwined" with the conduct charged in
the indictment. See Mem. Order at 2, 6.2 With respect to
Rule 403, the court said it was "satisfied that in the 403
balancing analysis the probative value of this evidence out-
weighs the prejudice to the defendant." Id. at 6. In reach-
ing this conclusion, the court noted that the incident "both
illuminates why Glascoe would continue to defraud her em-
ployer on behalf of Gartmon, as well as demonstrating the
manner in which Gartmon committed the crimes for which he
was indicted." Id. at 3; accord id. at 6 & n.5. This record is
more than sufficient to establish that the district court con-
ducted the balancing contemplated by Rule 403.

We also find no abuse of discretion in the district court's
substantive determination that the balance came out in favor
of admission of the testimony. The probative value of the

__________
2 Gartmon does not press the Rule 404(b) claim here.

incident is plain. It constituted direct evidence of Gartmon's
knowing involvement in, and direction of, the scheme to
defraud George Washington. And by making clear the na-
ture of the relationship between Gartmon and Glascoe, it
went a long way toward explaining why a woman who did not
benefit monetarily would have entered into and continued in
the scheme charged in the indictment. In so doing, the
testimony rebutted Gartmon's contention that Glascoe's mo-
tive was personal monetary gain independent of any influence
of his. Although Glascoe conceded that the incident "wasn't
the whole reason" she continued with the scheme, she said
that "it was a part of it." Trial Tr. 470 (Mar. 15, 1996). If
anything, her honest admission of mixed motives simply adds
to the credibility, and probativeness, of her testimony.

But even if the evidence were probative, Gartmon claims, it
was simply too prejudicial to be admitted. As proof, Gartmon
cites the district court's own characterization of the gun
incident, at sentencing, as "outrageous[ ]." Sentencing Tr. 79
(Aug. 12, 1996). There is no question but that the conduct
portrayed by the testimony was outrageous, and that it may
dramatically have injured Gartmon's cause. But that is not
sufficient reason to exclude the testimony. See United States
v. Munoz, 36 F.3d 1229, 1233 (1st Cir. 1994). Rule 403 does
not provide a shield for defendants who engage in outrageous
acts, permitting only the crimes of Caspar Milquetoasts to be
described fully to a jury. It does not generally require the
government to sanitize its case, to deflate its witnesses'
testimony, or to tell its story in a monotone. Cf. Old Chief,
117 S. Ct. at 656 ("[T]he prosecutor's choice will generally
survive a Rule 403 analysis when a defendant seeks to force
the substitution of an admission for evidence creating a
coherent narrative of his thoughts and actions in perpetrating
the offense for which he is being tried."). It does not bar
powerful, or even "prejudicial" evidence. Instead, the Rule
focuses on the "danger of unfair prejudice," and gives the
court discretion to exclude evidence only if that danger
"substantially outweigh[s]" the evidence's probative value.
See Fed. R. Evid. 403 (emphases added).

Quoting the Advisory Committee's Notes to Rule 403, the
Supreme Court has explained that the term "unfair preju-
dice" means " 'an undue tendency to suggest decision on an
improper basis, commonly, though not necessarily, an emo-
tional one.' " Old Chief, 117 S. Ct. at 650. Gartmon contends
this incident had that effect here, inciting the jury to convict
him not because of the fraud, but because of his behavior
toward Glascoe.

We should note first that the testimony at issue was not
offered for an unfair purpose. It was not offered on an
ancillary issue or to inflame the jury. To the contrary, it was
offered as evidence of defendant's intent and controlling role
in the fraud, and in direct rebuttal to his claim that he had
neither. If the jury believed the testimony, a conviction
would be fully justified.

Of course, the fact that the testimony was not offered for
an unfair purpose does not mean a juror could not have used
it for one. But because the "natural use of the testimony
would be for its appropriate use, proving intent," United
States v. Moore, 732 F.2d 983, 991 (D.C. Cir. 1984), we are
loath to upset the determination of the trial court. Although
there may have been some risk that a recitation of the facts
of the incident would evoke emotions in the courtroom, that
risk was comparatively small, and it alone did not render the
testimony "unfair" or "substantially outweigh[ ]" its probative
value. As we said in Moore, "the balance [under Rule 403]
should generally be struck in favor of admission when the
evidence indicates a close relationship to the event charged."
Id. at 989.

Defendant's trial counsel conceded as much. At a time
when he did not know whether the incident occurred before
or after all the fraudulent check requests had been submitted
to George Washington, counsel agreed that if the incident had
occurred before, "[i]t would be a much more difficult argu-
ment to make that the prejudicial impact substantially out-
weighed the probative value...." Trial Tr. 36 (Mar. 12,
1996). Although counsel did say that he "would nevertheless
make that argument," id., his honest appraisal of the difficul-
ty of his position was correct.

B

As with the gun incident, Gartmon moved in limine to
exclude the recordings of his telephone conversations with
Glascoe. The court ruled that they were admissible as admis-
sions of a party opponent pursuant to Federal Rule of Evi-
dence 801(d)(2)(A) and rejected Gartmon's contention that
they were barred by Rule 403 because of their tone and
profanity. The prosecution played portions of eight of the
telephone calls to the jury. In the calls, Gartmon used
profane and abusive language towards Glascoe. Gartmon
once again contends that the trial judge never conducted a
Rule 403 balancing and that an appropriate balancing must
come out in his favor.

It is true that, in contrast with its treatment of the gun
testimony, the district court did not issue an opinion explicitly
balancing the prejudice and probative value of the recordings
or explicitly announcing that the balance favored admission of
the evidence. The hearing transcript makes plain, however,
that the court well-understood the need to balance prejudice
and probativeness, and that its ultimate conclusion that the
material was admissible was based on the result of such a
balancing. See Hr'g Tr. 163-64 (Mar. 7, 1996). We do not
require a district court to recite the formula of Rule 403 in
haec verba in order to be sustained. See United States v.
Bradshaw, 935 F.2d 295, 301 (D.C. Cir. 1991). Indeed, " '[a]s
long as it appears from the record as a whole that the trial
judge adequately weighed the probative value and prejudicial
effect ..., we conclude that the demands of Rule 403 have
been met.' " Id. (quoting United States v. Sangrey, 586 F.2d
1312, 1315 (9th Cir. 1978)). It is apparent that the trial judge
did so here.

It also is apparent that the court did not abuse its discre-
tion in admitting the tape recordings. The tapes were proba-
tive because they revealed Gartmon's consciousness of guilt.
For example, Glascoe told Gartmon that she had retained a
lawyer to represent her in the investigation, and they dis-

cussed what Glascoe should tell the lawyer about the checks
paid to co-defendant Rouse, purportedly for the work of
Underground Printing:

Glascoe: Suppose he asks me, "Where did the checks
come from?"
...
Gartmon: I mean, that's what you gotta be creative at.
I mean, you gotta know what you did. I
mean, just tell him you sent them out. Tell
him.... Just, just, let's simply tell him that
they were a black minority company that you
were giving a break to, that you were trying
to help out.
...
Gartmon: And they're gonna ask why weren't they
made out to the company and you just simply
tell them that it wasn't made out to the
company for the reason that um, that his
company a year before last had a problem
with the Internal Revenue Service and that
was their way of doing it. And that's the
way he decided they're doin' it.
...
Glascoe: What about the receipts? ... You know, the
receipts that I got, from Underground. I
want them, I don't want it to say that you
gave me.... You want me to say you gave
them to me?

Gartmon: No, I, you don't put my name in it at all.

Appellant's App. at 79-81.

On the other side of the balance, the tapes did not disclose
any unrelated crimes or conduct that might have unfairly
prejudiced the jury against Gartmon. And whatever minor
prejudice may have been risked by the fact that he "raise[d]

his voice to Ms. Glascoe and use[d] profanity," Gartmon Br. at
27, it was appropriately mitigated by a limiting instruction the
court gave to the jury. Although the instruction did not track
the original language proposed by Gartmon's counsel, the
court crafted the final instruction with the aid of both the
defense and prosecution, and Gartmon's counsel did not ob-
ject to its final formulation. See, e.g., United States v. Small,
74 F.3d 1276, 1284 (D.C. Cir. 1996).

III

Gartmon contends that in their closing arguments, the
prosecutors improperly called him a liar and an abuser of
women and, in connection with the latter, improperly empha-
sized the gun incident and the tape recordings. He also
contends that the prosecutors mischaracterized the evidence
regarding both the threat he made to Sandra Yates and the
gun incident, and that they then compounded their miscon-
duct by misstating Glascoe's testimony about the latter.

Because Gartmon failed to raise these objections below, we
review his challenge for plain error under Federal Rule of
Criminal Procedure 52(b). See United States v. Young, 470
U.S. 1, 6 (1985); Small, 74 F.3d at 1281. The Supreme Court
has explained that under this standard, "there must be (1)
'error,' (2) that is 'plain,' and (3) that 'affect[s] substantial
rights.' " Johnson v. United States, 117 S. Ct. 1544, 1549
(1997) (quoting United States v. Olano, 507 U.S. 725, 732
(1993)). The third element "in most cases ... means that the
error must have been prejudicial: It must have affected the
outcome of the district court proceedings." Olano, 507 U.S.
at 734. Moreover, "[i]t is the defendant rather than the
Government who bears the burden of persuasion with respect
to prejudice." Id. Finally, "[i]f 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 affect[s] the
fairness, integrity or public reputation of judicial proceed-

ings.' " Johnson, 117 S. Ct. at 1549 (quoting Olano, 507 U.S.
at 732) (other citations omitted). It is not likely an error can
have that effect where the evidence against the defendant is
"overwhelming," the Court has said, because reversal in such
an instance would itself seriously affect the fairness, integrity
and public reputation of judicial proceedings. See id. at 1550.
Applying this test, we readily dismiss most of Gartmon's
challenges to the government's summations.

A

First, it was not error for the prosecution to call Gartmon a
liar, or to describe various of his statements and actions as
"lies." We do not, of course, condone the use of insults or
slurs in lawyers' arguments. But here the words were not
used as free-floating allegations about Gartmon's character or
as expressions of the prosecutor's opinion. Rather, they were
tied to specific conduct at issue in the trial--ranging from the
falsehoods Gartmon told Glascoe in order to control her, to
the false claims for compensation they submitted to George
Washington. See, e.g., Trial Tr. 1168 (Mar. 25, 1996) ("That
letter [to GWUHP] was a complete and utter lie because
Richard Gartmon had no intention of using that money for
the ... hair show ...."); see also id. at 1165-69, 1183, 1187.
When a "lie" is an accurate description of the conduct at
issue, we will not reverse a conviction because the prosecutor
did not use a more delicate term. See United States v.
Donato, 99 F.3d 426, 432 (D.C. Cir. 1996) (upholding convic-
tion where prosecutor called defendant charged with fraud a
liar); United States v. Dean, 55 F.3d 640, 665-66 (D.C. Cir.
1995) (same, where defendant charged with perjury).

Nor was it error for the prosecution to say that Gartmon
abused women and to refer to the gun incident and phone
calls as examples of that abuse. Again, the rhetoric was not
used as a generalized attack on Gartmon's character, but as a

description of the manner in which he conducted the scheme
charged in the indictment--that is, by abusing his relation-
ship with Glascoe and the other women who served as ficti-
tious payees. "[T]he way he got the money," the prosecutor
said, "was by using and abusing the people closest to him--
girlfriends, cousins, friends, associates." Trial Tr. 1045 (Mar.
25, 1996) (emphasis added). Moreover, the prosecutor tied
this allegation directly to the evidence the jury had just
heard: "We heard how he did it over the last two weeks," the
prosecutor said, and then detailed the specific ways in which
Gartmon used his girlfriends in the fraudulent scheme. The
prosecutor also reminded the jury of the testimony that when
Gartmon was arrested, he admitted to the FBI that he made
his money "through his girlfriends." Trial Tr. 973-74 (Mar.
20, 1996). And because we have upheld the district court's
admission of the gun incident and the tape recordings, there
was no error in the prosecution's reference to this evidence
and suggestion that the jurors review it.3

Finally, to the extent Gartmon's argument on these points
rests on an allegation that the tone rather than the substance
of the prosecution's remarks inflamed the jury, we simply are
not in a position to make such an assessment and instead
must "grant great deference to the district court's judgment
as to '[w]hether the prosecutor has struck a foul blow instead
of just a hard one.' " United States v. Gatling, 96 F.3d 1511,
1524 (D.C. Cir. 1996) (quoting Dean, 55 F.3d at 665). Howev-
er, the fact that the prosecution's argument did not draw a

__________
3 Gartmon also contends that one of the prosecutors stated her
opinion that Glascoe was a "bad person." In fact, the prosecutor's
remarks were made in rebuttal to defense counsel's contention that
Glascoe, not Gartmon, was the criminal actor in the scheme. The
prosecutor's response was to indicate that Glascoe's behavior was
no excuse for Gartmon's, and that the testimony showed both were
complicit in the fraud:

contemporaneous objection from defense counsel, or a sua
sponte admonition from the trial court, is a substantial indica-
tion that the tone was not inappropriate.

B

Gartmon also contends that the prosecution mischaracter-
ized the trial evidence by saying that Gartmon "kidnaped"
Sandra Yates when he drove her to his home, see Trial Tr.
1077 (Mar. 25, 1996), and by referring to the gun incident
involving Pamela Glascoe as a "rape," see id. at 1048. Al-
though "kidnaping" may not have been a technically accurate
description of the wild car ride, in context it is clear that the
prosecutor used the word in a figurative sense and that there
was no ambiguity about the precise incident to which he was
referring. "Rape," on the other hand, may well have been a
technically accurate description of what Gartmon did to Glas-
coe. See D.C. Code Ann. ss 22-4102, 22-4103. What is more
important, however, is that the prosecutor's meaning and
reference were again clear. Given that clarity, the use of the
terms was not error, and in any event could not have consti-
tuted plain error as it could not have "affected the outcome"
of the proceeding. See Olano, 507 U.S. at 734.

Gartmon further contends that the prosecution misstated
Glascoe's testimony regarding the gun incident, specifically
regarding the threat he made to force her to continue submit-
ting fraudulent check requests. The prosecution, he notes,
told the jury that Glascoe testified Gartmon said: "If you

__________
[W]hat [defense counsel] wants you to do is to rely on Pamela
Glascoe for the things that make her look really really bad, but
not to rely on Pamela Glascoe for the things that make Richard
Gartmon look really really bad, and there's a lot of both of
those things, because you know what? They're both bad.

Trial Tr. 1164 (Mar. 25, 1996).

don't keep doing it, I'm going to pull the trigger." Her actual
testimony, by contrast, was: "He told me that I will listen to
everything he says and do as he says." Compare Trial Tr.
1048 (Mar. 25, 1996), with Trial Tr. 353-54 (Mar. 14, 1996).
Gartmon is correct that there was a misstatement. More-
over, because it constituted a " 'statement[ ] of fact to the jury
not supported by proper evidence introduced during trial,' "
the prosecutor's "remarks were error to the extent that they
overstated [Glascoe's] testimony." United States v. Perholtz,
842 F.2d 343, 360 (D.C. Cir. 1988) (quoting Gaither v. United
States, 413 F.2d 1061, 1079 (D.C. Cir. 1969)); accord Donato,
99 F.3d at 432. This is so "[w]hether or not those [remarks]
were slips of the tongue in the heat of oral argument."
United States v. North, 910 F.2d 843, 896 (D.C. Cir. 1990).4

Although the prosecution's misstatement was error, we still
must determine whether it was plain error. See Young, 470
U.S. at 6, 14; United States v. Boyd, 54 F.3d 868, 872 (D.C.
Cir. 1995). In making that determination, the critical ques-
tion is whether the error prejudiced defendant in a way that
affected the outcome of the trial. See Olano, 507 U.S. at 734;
see also Young, 470 U.S. at 12 ("[T]he Court must consider
the probable effect the prosecutor's [statement] would have
on the jury's ability to judge the evidence fairly."). This
court has used a relatively consistent set of criteria for
evaluating the potential prejudice of closing argument errors.
We have

generally looked to three factors in determining whether
improper remarks by the prosecutor sufficiently preju-

__________
4 The misstatement does in fact appear to have been a slip of
the tongue. Apparently Glascoe originally described the incident to
the government in the form recited by the prosecutor; that was the
form of the expected testimony the government recited in its Rule
404(b) notice, see Gov't App. at 41-42; and the trial judge described
it in the same way in his opinion on defendant's motion to exclude
the testimony, see Mem. Order at 3. The absence of any objection
by defense counsel suggests that both parties were confused as to
what Glascoe actually had said in court.

diced a defendant: "the closeness of the case, the cen-
trality of the issue affected by the error, and the steps
taken to mitigate the effects of the error." We have also
framed the test for prejudice in terms of the severity of
the prosecutor's misconduct, the measures adopted to
cure the misconduct, and the certainty of conviction
absent the improper remarks.

North, 910 F.2d at 895 (citations omitted). We have applied
these factors--severity, centrality, mitigation, and closeness
of the case--regardless of whether the context was review for
harmless error because defense counsel objected at trial, or
for plain error because he did not.5 Compare, e.g., Gaither,
413 F.2d at 1079-80 (harmless error review), with Perholtz,
842 F.2d at 361 (plain error review).6 Applying these factors
here, we conclude that the prosecution's misstatement did not
prejudice Gartmon in the outcome of his trial.

First, although Gartmon complains about many parts of the
prosecution's argument, we have concluded above that only
the misquotation of Glascoe constituted error. That misquo-
tation was made only once in a relatively lengthy argument.
As we have previously held, "[w]ithout other compelling fac-
tors, a single misstatement confined to a closing argument
rarely amounts to severe misconduct." North, 910 F.2d at
897; cf. Perholtz, 842 F.2d at 361.

Second, it is true that the issue affected by the error--
whether Gartmon controlled or participated in the submission

__________
5 An important difference, however, is that the burden is on the
government in the first instance and on the defendant in the second.
See Olano, 507 U.S. at 734.

6 We also have referred, in shorthand, to the application of
these factors as a review for "substantial prejudice." See, e.g.,
Small, 74 F.3d at 1280.

of the fraudulent requests by Glascoe--was central to the
case. However, the disparity between the actual and the
misstated testimony was not of central importance. The
misquotation may well have been more powerfully put than
Glascoe's actual words, although even that is not clear.7 But
if believed, either version would have been more than suffi-
cient to establish Gartmon's intent and role in the offense.

Third, the judge gave the standard limiting instruction that
lawyers' arguments are not evidence and that the jury's
recollection of the evidence controls. We have repeatedly
said this kind of instruction can mitigate the impact of
erroneous jury argument. See, e.g., Gatling, 96 F.3d at 1524;
United States v. Childress, 58 F.3d 693, 716 (D.C. Cir. 1995);
Boyd, 54 F.3d at 872; North, 910 F.2d at 897; Perholtz, 842
F.2d at 361.

Finally, this was not a close case. To the contrary, the
evidence of Gartmon's guilt was overwhelming. In addition
to Glascoe, six of the payees testified that they performed no
services to justify receipt of checks from GWUHP, that
Gartmon gave them the checks to cash, and that they re-
turned almost all of the money to him. There was no
evidence that any of the special events for which GWUHP
gave the checks occurred, or that the printing company
performed any work for GWUHP beyond a single, $401.75
order of business cards. Gartmon presented virtually no
defense. His lawyer's argument that Gartmon did not know
of the fraud was incredible in light of the testimony of the
payees, which he neither contested nor explained except to
argue that Gartmon did not "treat all those people right."
Trial Tr. 1104 (Mar. 25, 1996). Viewed against this back-
ground, there is no possibility that the difference between

__________
7 Given the physical context in which the words were spoken,
the unstated implication that "pulling the trigger" would be the
consequence if Glascoe did not "do as he says" may have had an
even more powerful impact on the jury than if Gartmon had made
the threat expressly, as the prosecutor thought he had.

Glascoe's actual and quoted testimony could have made a
difference in the trial's outcome.

IV

After the court read its final instructions to the jury, it
excused the six alternate jurors, including Juror No. 2. At
that point, counsel for Gartmon's co-defendant noted that one
of the unexcused jurors had displayed enormous displeasure
at being selected and asked the court to remove him. With
the agreement of all counsel, the court told the jury that it
had made a mistake in designating the alternates, excused the
disgruntled juror, and recalled Juror No. 2 who was still in
the hall outside. The jury retired to the jury room at 2:00
p.m. After learning that an FBI case agent and postal
inspector had spoken with Juror No. 2 while he was in the
hall, the prosecution advised the court, which at 2:20 p.m.
directed the jury to stop deliberating.

The court immediately conducted a hearing regarding the
possible prejudice flowing from this contact. The FBI agent,
corroborated separately by the postal inspector, testified that
when the group of excused alternates came out of the jury
room the agent thanked them and asked, "Is there anything
the government could have done to make the case better or
more understandable?" Trial Tr. 1282 (Mar. 26, 1996). Ju-
ror No. 2 then nodded his head, laughed and said, "Yeah, I've
got questions, a lot of questions." Id. at 1287. The postal
inspector asked what kind of questions. Referring to co-
defendant Rouse, Juror No. 2 said he wondered what kind of
knowledge Rouse had and what Gartmon had told her. See
id. at 1282-83. The FBI agent said "okay" once or twice. At
that point, the courtroom deputy came down the hall and the
conversation with Juror No. 2 ceased.

After this testimony, the court denied Gartmon's initial
request for a mistrial. At the request of both the govern-
ment and defense counsel, and with their help in phrasing
questions, the court then asked Juror No. 2 whether he had
spoken with anyone after his dismissal from the jury, whether
that contact influenced his ability to proceed with delibera-

tions, and whether he had told the other empaneled jurors
about the contact. Juror No. 2 related the same story as the
federal agents, stated that it would not affect his ability to
deliberate because he had his own mind, and said that he had
not told the other jurors of the incident. Gartmon again
moved for a mistrial. The court denied Gartmon's motion,
finding that there was no discrepancy between the accounts
of the three parties to the conversation, that neither agent
said anything inappropriate to Juror No. 2, that the agents
did not respond to the questions of Juror No. 2, and that it
was clear that Juror No. 2 could still be fair and impartial.
See id. at 1317-20.

Appellant contends that the district court erred in not
declaring a mistrial. Both appellant and the government
agree that the standard of review is for abuse of discretion by
the district court. See United States v. Williams, 822 F.2d
1174, 1188 (D.C. Cir. 1987). Gartmon argues that the govern-
ment is unable to overcome "the heavy burden of rebutting
the presumption of prejudice arising from" the contact with
the agents. See Gartmon Br. at 33. His legal analysis is
based on the Supreme Court's opinion in Remmer v. United
States, which held that "any private communication ... with a
juror during a trial about the matter pending before the jury
is, for obvious reasons, deemed presumptively prejudicial."
347 U.S. 227, 229 (1954). The "presumption is not conclu-
sive," the Court said, "but the burden rests heavily upon the
Government to establish, after notice to and hearing of the
defendant, that such contact with the juror was harmless to
the defendant." Id.

The government argues that "Remmer's presumption of
prejudice no longer applies; instead, the trial court deter-
mines whether a likelihood of prejudice exists before assign-
ing the government the burden of proving harmlessness."
Gov't Br. at 46. But notwithstanding the view of the Sixth
Circuit that Remmer is no longer controlling because of the
Supreme Court's subsequent decision in Smith v. Phillips,
455 U.S. 209 (1982), see United States v. Pennell, 737 F.2d

521, 532 (6th Cir. 1984), many of our cases have continued to
recognize the presumption of prejudice and to place the
burden of disproving it on the government. See United
States v. Butler, 822 F.2d 1191, 1195-96 & n.2 (D.C. Cir. 1987)
(discussing Phillips and Pennell); see also United States v.
Fafowora, 865 F.2d 360, 363 (D.C. Cir. 1989); Williams, 822
F.2d at 1188. On the other hand, the government correctly
points out that in United States v. Williams-Davis, 90 F.3d
490 (D.C. Cir. 1996), cert. denied, 117 S. Ct. 986 (1997), this
court questioned the continued breadth of Remmer, suggest-
ing that subsequent Supreme Court cases, including Smith v.
Phillips and United States v. Olano, seem to have "nar-
row[ed]" or "reconfigure[d]" the Remmer presumption. See
90 F.3d at 496. The Williams-Davis court suggested that
the cases no longer treat the presumption "as particularly
forceful," and approved the Fourth Circuit's view that " 'while
a presumption of prejudice attaches to an impermissible
communication, the presumption is not one to be casually
invoked.' " See id. at 496-97 (quoting Stockton v. Common-
wealth of Virginia, 852 F.2d 740, 745 (4th Cir. 1988)).

We need not resolve this debate, nor any tension in our
own cases, in order to dispose of Gartmon's challenge. Here,
the district court followed Remmer to the letter. As Remmer
directed, the district court "determine[d] the circumstances,
the impact thereof upon the juror, and whether or not it was
prejudicial, in a hearing with all interested parties permitted
to participate." Remmer, 347 U.S. at 230. On the basis of
that hearing, and particularly on the basis of its appraisal of
the credibility of the juror's statement that he had not been
influenced, see Trial Tr. 1310 (Mar. 26, 1996), the court found
no prejudice even on the Remmer standard, see id. at 1314
(indicating that "even though there may be a presumption of
prejudice," it was overcome); see also id. at 1313-16. On
appeal, this court gives substantial deference to a district
court's appraisal of whether a juror contact resulted in preju-
dice to the defendant. See Fafowora, 865 F.2d at 363;
Butler, 822 F.2d at 1196; Williams, 822 F.2d at 1188-89. We
have no difficulty sustaining the district court's determination
in this case.

The context of the contact with Juror No. 2 belies Gart-
mon's assertion that prejudice always arises "from a contact
by a federal law enforcement officer" because an "agent is a
scary person to the average layman." Gartmon Br. at 34.
Here, the contact occurred in a non-threatening setting, with
several fellow alternates present, after an accidental meeting
in the hall, and after both sides thought the juror's service
had concluded. The agents' questions were innocuous, com-
municating no threats or effort to influence the juror. See
Butler, 822 F.2d at 1196; Williams, 822 F.2d at 1189. Nor
was any extra-judicial information passed to the juror. See
Butler, 822 F.2d at 1196. Indeed, the circumstances here do
not even approach those in other, far more egregious cases in
which this court has sustained findings of an absence of
prejudice. See, e.g., Williams-Davis, 90 F.3d at 495, 497
(forewoman's husband urged her to "nail" the defendants);
Fafowora, 865 F.2d at 363-64 (third party told juror he would
give "anything" for information on deliberations); Butler, 822
F.2d at 1194-96 (defendant approached juror in elevator,
complimented her, and told her his version of the events at
issue; and where most of jury learned of the incident);
Williams, 822 F.2d at 1186, 1189-90 (defense witness contact-
ed three jurors, inquired into status of deliberations, and
complained that deliberations were only continuing so jurors
could collect fees; and where entire jury learned of incident).

In addition to the context of the contact, we also have the
juror's statement at the hearing that the contact would not
influence him. See Phillips, 455 U.S. at 230 n.7; Butler, 822
F.2d at 1196-97. The district court, having observed the
demeanor of the juror, is in the best position to determine the
credibility of that assurance. Moreover, the court's determi-
nation that the juror was credible is supported both by the
nature of the agent's question to the juror, and by what the
juror said in reply. "Yeah, I've got questions, a lot of
questions," is not the kind of remark one would expect from a
citizen who has been cowed by the presence of an FBI agent.
Rather, it is consistent with his testimony that the conversa-

tion would not influence him because "I have my own mind."
Trial Tr. 1310 (Mar. 26, 1996).

Finally, as in our assessment of potential prejudice from
the prosecution's misstatements in closing argument, we are
mindful of the fact that this case was not a close one.
Measured against the overwhelming evidence of Gartmon's
guilt, we are unable to view this contact as materially contrib-
uting to the verdict against him.

In addition to contending that the denial of his motion for
mistrial was an abuse of discretion, Gartmon also contends
that we should use our "supervisory power" to reverse his
conviction because the agents' conduct violated District Court
Rule 115. The government concedes that the agents violated
that Rule, which provides that "[n]o ... person acting on
behalf of a party or attorney, shall communicate directly or
indirectly with a juror or an excused juror ... during the
trial." D.C. Dist. Ct. R. 115(a). The Rule also bars communi-
cation after the verdict except with the express permission of
the court, see D.C. Dist. Ct. R. 115(b). We analyze this
violation under the plain error standard because Gartmon did
not mention either Rule 115 or the courts' supervisory power
below. But the posture of our review is immaterial because
the Supreme Court has instructed that we may not utilize our
supervisory power to reverse a conviction unless the govern-
ment's misconduct has prejudiced the defendant. See United
States v. Hasting, 461 U.S. 499, 506 (1983); see also Bank of
Nova Scotia v. United States, 487 U.S. 250, 254 (1988). As
we already have sustained the district court's conclusion that
Gartmon was not prejudiced, reversal of appellant's conviction
would not be justified either under the plain error rule or as
an exercise of our supervisory power.

V

Appellant's remaining arguments relate to venue and sen-
tencing. He contends that venue was insufficient for those
money laundering counts where the GWUHP check was not
first deposited in a District of Columbia bank, notwithstand-

ing that Riggs National Bank processed all of the checks in
the District. We may dispense with this contention without
further discussion because Gartmon waived it by failing to
raise it below. See United States v. Gaviria, 116 F.3d 1498,
1517 & n.22. (D.C. Cir. 1997), cert. denied sub nom. Naranjo
v. United States, 118 S. Ct. 865 (1998); United States v.
Rodriguez, 67 F.3d 1312, 1317-18 (7th Cir. 1995); United
States v. Potamitis, 739 F.2d 784, 791 (2d Cir. 1984); Charles
Alan Wright, 2 Federal Practice and Procedure: Criminal
2d s 306 (2d ed. 1982).

As the government concedes, however, Gartmon's objection
to his sentence is valid. The district court sentenced Gart-
mon to 140 months to be served concurrently on all twenty-
eight counts of conviction. Although that sentence was within
the appropriate range for the thirteen money laundering
counts, it exceeded the 120-month statutory maximum on the
fifteen counts charging interstate transportation of securities
obtained by fraud. See 18 U.S.C. s 2314 ("Whoever trans-
ports [interstate securities obtained by fraud] ... [s]hall be
... imprisoned not more than ten years") (emphasis added).
Accordingly, we accept the suggestion of both the defendant
and the government that we remand the case for re-
sentencing to correct this error.

VI

For the foregoing reasons, we affirm the convictions and
remand the case for re-sentencing in conformity with this
opinion.