United States v. Becton

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 11, 2010 Decided April 16, 2010

No. 09-3016

UNITED STATES OF AMERICA,
APPELLEE

v.

JAMES BECTON, ALSO KNOWN AS FUNK, ALSO KNOWN AS P,
ALSO KNOWN AS PUMPKIN,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 1:07-cr-00131-JR-1)

Stephen C. Leckar, appointed by the court, argued the cause
and filed the briefs for appellant.
SuzAnne C. Nyland, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Roy W. McLeese
III, John P. Mannarino, Arvind K. Lal, and Matthew P. Cohen,
Assistant U.S. Attorneys.
Before: ROGERS and GRIFFITH, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
 2

EDWARDS, Senior Circuit Judge: Appellant James Becton
was sentenced to 300 months in prison after a jury convicted
him of conspiracy to distribute and possess with intent to
distribute fifty grams or more of cocaine base (“crack”), five
kilograms or more of cocaine, and cannabis, along with ten
counts of unlawful use of a communication facility to facilitate
the conspiracy. In this appeal, Becton challenges (1) the District
Court’s denial of his motion to suppress evidence obtained from
a series of wiretaps placed on his and his charged co-
conspirators’ cell phones; (2) the District Court’s refusal to hold
a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 155-56
(1978), regarding the prosecution’s alleged failure to disclose
certain information bearing on the credibility of two confidential
sources that it relied on in affidavits supporting the wiretap
applications; and (3) the District Court’s denial of his motion for
a new trial. In the new trial motion, Becton argued that the
District Court improperly admitted testimony pertaining to his
activities while incarcerated from 2003 to 2005 on an unrelated
charge and that it improperly allowed the Government to inform
the jury in its rebuttal closing argument that Becton had also
been in prison between 1995 and 2000. The District Court
rejected both arguments, and Becton now raises them again
before this court.
We affirm the District Court’s rulings. First, we hold that
the District Court did not abuse its discretion in approving the
prosecution’s use of wiretaps to uncover the “full nature and
scope” of the conspiracy. See United States v. Sobamowo, 892
F.2d 90, 93 (D.C. Cir. 1989) (internal quotation marks omitted).
Second, we find that the trial court did not err in failing to hold
a Franks v. Delaware hearing, since the information appellant
asserts was omitted from the affidavits was not material.
Finally, the District Court did not abuse its discretion in denying
the motion for a new trial, because it properly admitted the
testimony pertaining to Becton’s incarceration from 2003 to
2005 as direct evidence of the charged offense, see United States
 3

v. Bowie, 232 F.3d 923, 929 (D.C. Cir. 2000), and correctly
determined that Becton did not suffer “substantial prejudice”
from the prosecutor’s improper remark in rebuttal closing
argument, see United States v. Childress, 58 F.3d 693, 715 (D.C.
Cir. 1995) (per curiam) (internal quotation marks omitted).
Accordingly, we affirm.
I. BACKGROUND
In 2001, the FBI began investigating drug trafficking on the
4200 and 4300 blocks of Fourth Street, S.E., in Washington,
D.C. According to the Government, appellant James Becton and
his brother Willie Best led a “violent, narcotics trafficking
organization,” Counts Aff. ¶ 15 (Oct. 2005), reprinted in 1
Appendix to Brief of Appellant Becton (“A.A.”) 327 (“Counts
Oct. Aff.”), supplying large quantities of drugs (primarily
cocaine, crack, and marijuana) to their underlings and
overseeing the drug sales that occurred in this area. Although
the Government’s investigation slowed due to “staffing and
resource changes at the FBI” after the last of a series of
controlled purchases occurred in June 2002, the investigation
“resumed in earnest in 2004.” Government’s Omnibus Resp. to
Def. James Becton’s Pretrial Mots. at 5-6 (May 30, 2008),
reprinted in 1 A.A. 152-53. Among other endeavors, the
Government seized crack cocaine from a car parked by Best and
an associate in Washington, D.C.; obtained a pen register for the
cellular telephone of Fred Mercer, a member of Becton and
Best’s organization; executed a controlled buy using an
informant; and recorded several telephone conversations
between Mercer and the informant.
On September 27, 2005, the FBI sought and obtained
authorization to wiretap Mercer’s cellular telephone. Agent
Mary Counts submitted a 49-page affidavit seeking to intercept
wire communications to and from this telephone by a number of
purported conspirators, including Becton. See Counts Aff.
(Sept. 2005), reprinted in 1 A.A. 260-308 (“Counts Sept. Aff.”).
 4

Counts’ affidavit provided detailed information about Best and
Becton’s operation as revealed by three confidential informants,
identified as S-1, S-2, and S-3 to protect the sources from
retribution. Two of these informants were incarcerated at the
time Counts applied for the wiretap. Counts additionally
described several seizures and undercover operations that took
place in 2003 and 2005 and set forth data obtained pursuant to
a pen register for the targeted telephone.
In the September 2005 affidavit, Counts stated her belief
that “the interception of wire communications” was the “only
available investigative technique . . . to establish the full scope
and nature” of the conspiracy. Counts Sept. Aff. ¶ 68, 1 A.A.
296. She averred that “[n]ormal investigative procedures” had
been tried and “failed, appear[ed] reasonably unlikely to succeed
if tried or continued, or [were] too dangerous to employ.” Id.
¶ 69, 1 A.A. 296. Although the FBI had employed surveillance,
undercover officers, confidential sources, interviews and pen
registers, made controlled purchases through cooperating
witnesses, and reviewed calling data and public records, Counts
averred that these investigative techniques had failed to
establish, inter alia, the identities of the persons who supplied
the cocaine and crack cocaine, the identities of the persons who
transported drugs into the District of Columbia for distribution
by the identified co-conspirators, the identities of other persons
who assisted with the distribution of the drugs, the manner and
frequency with which the co-conspirators transported drugs into
D.C., and the locations where they stored their contraband. Id.
¶ 69, 1 A.A. 296-97. Counts explained in detail the
conventional investigative techniques employed, the evidence
(or lack thereof) revealed by each method, and why further use
of each technique would not reveal the identity of all members
of the conspiracy, the manner in which the co-conspirators
distributed drugs, or the manner in which they distributed the
proceeds of their operation. For example, three previous search
warrants yielded “limited to no evidence,” as sources later
 5

revealed that Best and Becton had been forewarned that law
enforcement action would take place at certain locations and
moved their contraband. Id. ¶ 76, 1 A.A. 301-02.
From the September 2005 wiretap of Mercer’s phone, the
FBI identified a cellular telephone number for Becton and
obtained authorization to wiretap this phone from October 27,
2005 to November 25, 2005. After a second wiretap of Mercer’s
phone revealed a telephone number for Willie Best, the FBI
applied for and received authorization in January 2006 to
wiretap Best’s phone for 30 days, later reauthorized for a second
30-day period. In the January 2006 application for a wiretap on
Best’s phone, Counts’ affidavit described six confidential
sources. See Counts Aff. ¶¶ 21-59 (Jan. 2006), reprinted in 1
A.A. 199-210 (“Counts Jan. Aff.”). The three confidential
sources that had not appeared in previous wiretap applications
were stated to have begun their cooperation with the FBI in
March 2005 (S-4), November 1996 (S-5), and April 2002 (S-6),
and were thus working with the FBI at the time it applied for the
first wiretap in September 2005. However, all three sources
were incarcerated at the time the initial wiretap application was
made. After obtaining these six wiretap authorizations, the FBI
executed a series of search warrants on May 22, 2006 and May
23, 2007, the latter being the date of the case “take down.”
Government’s Notice of Intrinsic Evidence at 4 (Apr. 18, 2008),
reprinted in 1 A.A. 91.
A grand jury charged Becton and ten others with conspiracy
to unlawfully, knowingly, and intentionally distribute and
possess with intent to distribute (1) fifty grams or more of crack;
(2) five kilograms or more of cocaine; and (3) cannabis. Becton
was also charged with numerous counts relating to the unlawful
use of a telephone to facilitate the conspiracy in violation of 21
U.S.C. § 843(b) and 18 U.S.C. § 2. Charged co-conspirator
Willie Best moved to suppress evidence obtained from the six
30-day periods of wiretap surveillance authorized on September
 6

27, 2005 (Mercer’s phone); October 27, 2005 (Becton’s phone);
December 16, 2005 (second wiretap of Mercer’s phone);
January 27, 2006 (Best’s phone); February 24, 2006 (second
wiretap of Best’s phone); and April 4, 2006 (three additional
phones used by Becton). Among other arguments, Best claimed
that the Government’s wiretap applications had not satisfied the
necessity threshold of 18 U.S.C. § 2518, and asked for a Franks
v. Delaware hearing, see 438 U.S. at 155-56. Appellant filed a
supplemental memorandum in support of Best’s motion to
suppress electronic surveillance, adopting Best’s arguments and
elaborating on the necessity argument. The District Court heard
argument on the motion to suppress in July 2008 and orally
denied the motion. Tr. of Hearing (July 23, 2008) at 17, 2 A.A.
453.
Becton’s trial proceeded from September 15, 2008 to
September 30, 2008. The jury found Becton guilty of
conspiracy and ten counts of unlawful use of a telephone to
facilitate the conspiracy in violation of 21 U.S.C. § 843(b) and
18 U.S.C. § 2. It acquitted Becton of several other telephone
counts.
Becton moved for a new trial, arguing that the District
Court (1) improperly admitted the prosecution’s evidence of his
actions while he was incarcerated from 2003 to 2005, including
his receipt of drugs and a cell phone while at the correctional
facility, and (2) improperly permitted the prosecution in its
rebuttal closing argument to inform the jury that Becton was
incarcerated between 1995 and 2000. The District Court denied
the motion, finding that Becton’s activities while incarcerated
were “relevant to the existence and/or continuing operation of
the charged conspiracy and probative of Becton’s participation
in it.” United States v. Becton, Crim. No. 07-0131,
Memorandum Order at 6 (D.D.C. Feb. 11, 2009), reprinted in 1
A.A. 421 (“Mem. Order”). The District Court ruled that “[t]his
was not Rule 404(b) evidence; it was evidence intrinsic of the
 7

conspiracy,” because the testimony established that even during
his incarceration, Becton exerted significant influence and
control over the drug sales business on Fourth Street S.E., and
established the beginning of a long-term drug-dealing
relationship between Becton and one of the witnesses. Id. The
District Court further found that the probative value of this
evidence was not substantially outweighed by the danger of
unfair prejudice. Id. at 7, 1 A.A. 422. The District Court found
that it had erred in permitting the Government’s reference to
Becton’s 1995 to 2000 incarceration in rebuttal closing
argument, but held that the error was harmless. Id. at 10-12, 1
A.A. 425-27.
Becton appeals his conviction, challenging the District
Court’s denial of his motion for a new trial as well as its earlier
denial of his motion to suppress evidence obtained through
wiretaps.
II. ANALYSIS
A. Standard of Review
This court reviews the District Court’s determination that
the Government adequately demonstrated necessity to wiretap
for abuse of discretion. Sobamowo, 892 F.2d at 93.
“The circuits are split on the question whether a district
court’s decision not to hold a Franks hearing is reviewed under
the clearly erroneous or de novo standard of review.” United
States v. Dale, 991 F.2d 819, 843-44 n.44 (D.C. Cir. 1993) (per
curiam). “We have not definitively resolved the issue in this
circuit,” id., and it is unnecessary for us to do so in this case. A
movant seeking to obtain a Franks hearing “must show that (1)
the affidavit contained false statements; (2) the statements were
material to the issue of probable cause; and (3) the false
statements were made knowingly and intentionally, or with
reckless disregard for the truth.” United States v. Richardson,
861 F.2d 291, 293 (D.C. Cir. 1988) (per curiam) (citing Franks,
 8

438 U.S. at 155-56). “To mandate an evidentiary hearing,” the
movant’s attack on the affidavit supporting the warrant “must be
more than conclusory.” Franks, 438 U.S. at 171. On the record
in this case, whether the District Court’s decision not to hold a
Franks hearing is reviewed de novo or under the clearly
erroneous standard, we find no merit in Becton’s challenge.
We review the denial of a motion for a new trial for abuse
of discretion. See Morgan v. District of Columbia, 824 F.2d
1049, 1063 (D.C. Cir. 1987). Becton makes two arguments
challenging the denial of the motion for a new trial: (1) the
District Court improperly admitted inadmissible character
evidence pertaining to Becton’s conduct while in prison from
2003 to 2005, and (2) the District Court improperly allowed the
Government to reference a separate period of incarceration in its
rebuttal closing argument. Becton did not forfeit his argument
regarding the admission of the 2003 to 2005 prison evidence and
our review is therefore not for plain error as the Government
suggests. See Government’s Br. at 40-41.
Federal Rule of Evidence 401 defines “[r]elevant evidence”
as “evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action
more probable or less probable than it would be without the
evidence.” FED. R. EVID. 401. District Court determinations on
relevancy are reviewed for an abuse of discretion. United States
v. Askew, 88 F.3d 1065, 1074 (D.C. Cir. 1996).
Federal Rule of Evidence 404(b) states:
Evidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show action in
conformity therewith. It may, however, be admissible for
other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of
mistake or accident, provided that upon request by the
accused, the prosecution in a criminal case shall provide
 9

reasonable notice in advance of trial, or during trial if the
court excuses pretrial notice on good cause shown, of the
general nature of any such evidence it intends to introduce
at trial.
FED. R. EVID. 404(b). A claim that a district court improperly
admitted evidence under Rule 404(b) is ordinarily reviewed for
abuse of discretion. United States v. Pettiford, 517 F.3d 584,
588 (D.C. Cir. 2008). In this case, the District Court ruled that
the evidence regarding Becton’s activities while in prison was
relevant and “not Rule 404(b) evidence,” because it was intrinsic
to the alleged conspiracy. Mem. Order at 6, 1 A.A. 421.
However, “[a]lthough relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury,
or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” FED. R. EVID. 403.
Becton argued to the District Court that the disputed evidence
was prejudicial and should be excluded under Rule 403. We
review for abuse of discretion when a trial judge has admitted
evidence “after having weighed its ‘probative value’ against the
danger it raised of ‘unfair prejudice, confusion of the issues or
misleading the jury.’” United States v. Earle, 375 F.3d 1159,
1163 (D.C. Cir. 2004) (quoting United States v. Long, 328 F.3d
655, 662 (D.C. Cir. 2003)); see also United States v. Shea, 159
F.3d 37, 39 (1st Cir. 1998) (applying Rule 401 and 403 analyses
to review the admissibility of evidence that was not Rule 404(b)
evidence but was intrinsic of the charged crime). If a district
court does not abuse its discretion in admitting challenged
evidence, it does not abuse its discretion denying a motion for
a new trial founded upon a challenge to the admissibility of that
evidence. See Morgan, 824 F.2d at 1064.
Finally, “even where challenges to a prosecutor’s closing
argument have been preserved through timely objection, we will
reverse a conviction and require a new trial only if we determine
 10

that the defendant has suffered substantial prejudice.”
Childress, 58 F.3d at 715 (internal quotation marks omitted).
B. The Motion to Suppress Evidence Obtained Through
Wiretapping
Title III of the Omnibus Crime Control and Safe Streets Act
of 1968, 18 U.S.C. § 2510 et seq., permits a district court to
approve an application for the interception of certain wire, oral,
or electronic communications. Id. § 2518. On the basis of facts
submitted in the Government’s application to wiretap,
the district court may authorize a wiretap upon finding that
(1) probable cause exists to believe that an individual has
committed or is about to commit one of certain enumerated
offenses; (2) probable cause exists to believe that
“particular communications concerning that offense will be
obtained” through an interception; (3) “normal investigative
procedures have been tried and have failed or reasonably
appear to be unlikely to succeed if tried”; and (4) probable
cause exists to believe that the communication facility
sought to be wiretapped “[is] being used, or [is] about to be
used, in connection with the commission of [the] offense.”
United States v. Carter, 449 F.3d 1287, 1292 (D.C. Cir. 2006)
(quoting 18 U.S.C. § 2518(3)(a-d)). An “aggrieved person” –
any “person who was a party to any intercepted wire . . .
communication or a person against whom the interception was
directed,” 18 U.S.C. § 2510(11) – may move to suppress the
contents of the wire communication. Id. § 2518(10)(a). Becton,
an aggrieved person, now appeals the denial of his motion to
suppress evidence obtained through wiretapping.
1. Necessity to Wiretap and Use of the Information
Obtained
Appellant first argues that the District Court abused its
discretion in finding that the Government satisfied the
 11

“necessity” requirement for wiretapping in its September 2005
application. In particular, he asserts that the Government (1)
failed to exhaust conventional investigative techniques before
seeking authorization to wiretap, and (2) failed to disclose three
informants who were working with the Government when it
submitted its first wiretap application. We find neither
argument persuasive. We therefore hold that the District Court
did not abuse its discretion in finding that the Government met
the necessity requirement of Title III. See 18 U.S.C.
§ 2518(3)(c).
This court has previously held that the District Court may
authorize a wiretap on the phone of a member of a suspect
operation if traditional investigative techniques have proved
inadequate to reveal the operation’s “‘full nature and scope.’”
See, e.g., Carter, 449 F.3d at 1294 (quoting Sobamowo, 892
F.2d at 93)); United States v. Brown, 823 F.2d 591, 598 (D.C.
Cir. 1987) (internal quotation marks omitted). As in Carter,
where law enforcement infiltration by normal investigative
techniques was unlikely to succeed because the defendant dealt
with a small circle of street-level drug dealers, 449 F.3d at 1294,
Agent Counts’ affidavit in this case likewise explained that
Becton and Best’s drug redistribution operation was “extremely
close-knit, involving close associates and family, and . . . very
carefully managed, compartmentalized, and operated so as to
minimize [the target’s] contacts with other co-conspirators.”
Counts Sept. Aff. ¶ 71, 1 A.A. 299. Agent Counts also averred
that physical surveillance had been conducted but “yielded little
valuable information . . . other than confirming that some of the
identified members of the conspiracy associate with one
another.” Id. ¶ 74, 1 A.A. 300; see also Carter, 449 F.3d at
1294 (describing the failure of physical surveillance). Although
normal investigative procedures “ha[d] been probative in
proving that an ongoing illegal narcotics business [wa]s
operating,” the FBI had been unable to determine the identities
of other co-conspirators who supplied and transported drugs into
 12

D.C. and who assisted in local redistribution using these
methods. Counts Sept. Aff. ¶ 69, 1 A.A. 296-97. The FBI
additionally could not determine through normal investigative
procedures the manner and frequency with which co-
conspirators transported drugs into the District of Columbia, the
quantities and prices of those drugs, and the location where the
contraband was stored, among other information. See id. Like
the affidavit in Brown, Counts’ affidavit demonstrated that
“traditional investigative techniques had yielded some evidence”
against the co-conspirators but did not disclose – and would
likely continue to fail to disclose – “the full nature and extent of
the conspiracy.” Brown, 823 F.2d at 598.
Counts’ affidavit stated that further controlled drug
purchases, either by the one confidential informant not
incarcerated or by an undercover officer, would not lead to
sufficient evidence as to (1) the manner by which
co-conspirators redistributed large quantities of illegal drugs in
D.C.; (2) the identities of all members of the organization
assisting Mercer, Becton, and the others; and (3) the manner in
which the co-conspirators disposed of the proceeds of the
operations. Counts Sept. Aff. ¶ 71, 1 A.A. 298-99. Specifically,
the affidavit stated that even if S-1, the unincarcerated
informant, made additional controlled buys, S-1 would not be
able to find out the organization’s source of supply. Id.
We disagree with Becton’s claim that various omissions
from the wiretap affidavits undermined the Government’s
necessity showing. The Government’s omission of information
that a previous search had yielded incriminating information did
not make its affidavit infirm. The affidavit explained in detail
why searches were “inadequate to penetrate [the] conspiracy,”
so the contested information was not material. Carter, 449 F.3d
at 1294; see also Counts Sept. Aff. ¶¶ 76-77, 1 A.A. 301-02.
Furthermore, the omission of this information did “not undercut
the fact that the government had ‘engaged in an adequate range
 13

of investigative endeavors,’” Carter, 449 F.3d at 1294 (quoting
Sobamowo, 892 F.2d at 93), including at least three previous
searches that yielded “limited to no evidence,” see Counts Sept.
Aff. ¶ 76, 1 A.A. 301-02.
The disputed omission of three cooperating witnesses from
the Government’s first affidavit was not material, because it did
not “undermine the government’s ability to prove the need for
the . . . wiretap.” United States v. Gonzalez, Inc., 412 F.3d 1102,
1111 (9th Cir. 2005). Agent Counts’ affidavit demonstrated that
additional controlled buys were inadequate to reveal the “full
nature and scope” of the conspiracy. Sobamowo, 892 F.2d at 93
(internal quotation marks omitted); see Counts Sept. Aff. ¶¶ 70-
71, 1 A.A. 298. More significantly, the additional informants
could not have made controlled buys, as they were incarcerated
at the time when the FBI submitted the September and October
2005 applications for wiretaps.
Becton also asserts that the evidence gained from these
wiretaps should have been disregarded for failure to meet the
necessity requirement and that the later affidavits do not support
probable cause without that information. See Appellant’s Br. at
52. For the reasons already explained, the District Court did not
abuse its discretion in authorizing the September and October
wiretaps, so the information from those wiretaps need not have
been disregarded.
Because the Government’s affidavits adequately
demonstrated the failure of normal investigative techniques to
reveal the full nature and scope of the conspiracy, the District
Court did not abuse its discretion in finding that the Government
had met the necessity requirement of 18 U.S.C. § 2518.
2. Denial of a Franks Hearing
Becton also argues that the District Court erred when it
refused to grant a Franks hearing with respect to the
Government’s failure to disclose certain information bearing on
 14

the credibility of two confidential sources, S-4 and S-6, who
were cited in the January and February 2006 affidavits
supporting wiretap applications. See Appellant’s Br. at 52-54.
We agree with Becton that his claim was raised and preserved
when he requested a Franks hearing as part of the motion to
suppress and the District Court denied that motion without
holding such a hearing. However, because Becton failed to
demonstrate that the omitted information was material, we hold
that the District Court did not err in failing to hold a Franks
hearing. See Franks, 438 U.S. at 171-72; see also Richardson,
861 F.2d at 293, 294.
The inclusion of additional information bearing on the
credibility of S-4 and S-6 would not have “defeat[ed] probable
cause” for the wiretap. See United States v. Spencer, 530 F.3d
1003, 1007 (D.C. Cir. 2008) (internal quotation marks omitted).
Agent Counts had already disclosed that these sources had
extensive criminal histories, so the District Court was aware of
information undercutting their credibility when it approved the
wiretaps. Furthermore, even if the omitted information
concerning S-4 and S-6 completely undermined their credibility
such that the information relating to them was deemed
unreliable and struck entirely from the affidavit, Becton does not
show that probable cause would have been defeated. See
Franks, 438 U.S. at 156. Counts’ January 2006 affidavit
contained information from four other confidential informants
and described undercover operations involving consensually
recorded conversations and controlled purchases, all of which
demonstrated probable cause that the targeted individuals were
involved in a drug-trafficking conspiracy.
On this record, we hold that the District Court did not err
when it refused to grant a Franks hearing.
 15

C. The Motion for a New Trial
Finally, the District Court did not abuse its discretion in
denying Becton’s motion for a new trial. Becton argues that
testimony pertaining to his conduct while incarcerated from
2003 to 2005 on an unrelated offense should have been excluded
as inadmissible character evidence under Federal Rule of
Evidence 404(b). We disagree. The District Court correctly
held that this “was not Rule 404(b) evidence.” See Mem. Order
at 6, 1 A.A. 421. Rather, the evidence that Becton continued to
manage the drug operation on Fourth Street S.E. while
incarcerated constitutes direct evidence of his continuing
participation in the charged conspiracy and is therefore
“properly considered intrinsic” evidence outside the scope of
Rule 404(b). See Bowie, 232 F.3d at 929; see also United States
v. Alexander, 331 F.3d 116, 126 (D.C. Cir. 2003).
The District Court additionally did not abuse its discretion
in determining that “the danger of unfair prejudice” did not
“substantially outweigh[]” the probative value of the disputed
evidence. FED. R. EVID. 403; see Mem. Order at 7, 1 A.A. 422.
Both the prosecution and the defense at other points in the trial
had mentioned without objection that Becton had been
previously incarcerated. Mem. Order at 7, 1 A.A. 422. Because
the District Court did not abuse its discretion in admitting this
testimony, it did not abuse its discretion in denying the motion
for a new trial.
Nor did the District Court abuse its discretion in denying
the motion for a new trial after Becton challenged the
prosecutor’s rebuttal closing argument reference to Becton’s
incarceration from 1995 to 2000. The challenged remark was
error, as the District Court found, see Mem. Order at 10, 1 A.A.
425, because “it constituted a statement of fact to the jury not
supported by proper evidence introduced during trial,” United
States v. Gartmon, 146 F.3d 1015, 1025 (D.C. Cir. 1998)
(internal quotation marks and brackets omitted). However, we
 16

agree with the District Court that the error was harmless. See
United States v. Donato, 99 F.3d 426, 432 (D.C. Cir. 1996) (“In
order to warrant reversal, an improper prosecutorial remark must
cause substantial prejudice to the defendant.”); Childress, 58
F.3d at 715 (“substantial prejudice” standard applicable even
where challenges to prosecutor’s closing argument have been
preserved through timely objection).
The District Court properly applied the three factors used to
determine whether improper remarks by the prosecutor
sufficiently prejudice a defendant so as to warrant reversal: (1)
the closeness of the case; (2) the centrality of the issue affected
by the error; and (3) the steps taken to mitigate the error’s
effects. See Childress, 58 F.3d at 715; see also id. at 715-16
(alternately describing factors as the severity of the misconduct,
the measures adopted to cure the misconduct, and the certainty
of conviction absent the improper remarks). The brief remark
from the prosecutor regarding a prior period of incarceration
obviously caused some prejudice to Becton, particularly when
the jury had already heard in great detail about at least one other
prior period of incarceration. However, as the District Court
found, Becton’s activities from 1995 to 2000 were not “central
issues because the prosecution’s evidence and argument focused
almost exclusively on events that occurred after he was
released.” Mem. Order at 11, 1 A.A. 426. The District Court
permitted the remark, albeit erroneously, only in response to
Becton’s counsel’s closing argument reference to the
Government’s lack of evidence between 1995 and 2001. And,
contrary to appellant’s assertion, the District Court did adopt
measures to cure the misconduct, instructing the jury that the
arguments and statements of the lawyers were not in evidence.
See id. at 11-12, 1 A.A. 426-27. Finally, this case was not close:
Appellant’s participation in the conspiracy was established by
numerous witnesses and by intercepted conversations in which
the jury heard appellant himself repeatedly directing the supply
 17

and distribution of narcotics. In light of these considerations, we
agree with the District Court that the error was harmless.
III. CONCLUSION
For the foregoing reasons, the judgment of the District
Court is affirmed.