United States v. Moore

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 24, 2011 Decided July 29, 2011

No. 05-3050

UNITED STATES OF AMERICA,
APPELLEE

v.

RODNEY L. MOORE, ALSO KNOWN AS RASOO,
APPELLANT

Consolidated with 05-3051, 05-3052, 05-3053, 05-3054,
05-3064

Appeals from the United States District Court
for the District of Columbia
(No. 1:00-cr-00157)

Stephen C. Leckar, appointed by the court, John Kenneth
Zwerling, Neil H. Jaffee, Assistant Federal Public Defender,
and Charles A. Murray argued the cause for appellants. With
them on the briefs were A. J. Kramer, Federal Public
Defender, and Deborah A. Persico, appointed by the court.
 2
Leslie Ann Gerardo, Assistant U.S. Attorney, U.S.
Attorney’s Office, argued the cause for appellee. With her on
the brief were Ronald Machen, Jr., U.S. Attorney, Roy W.
McLeese III and Elizabeth Trosman, Assistant U.S. Attorneys,
and Angela M. Miller, Special Assistant U.S. Attorney.

Before: SENTELLE, Chief Judge, and ROGERS 1 and
KAVANAUGH, 2 Circuit Judges.

Opinion for the Court filed PER CURIAM.

Opinion concurring in part in Part I filed by Circuit Judge
ROGERS.

TABLE OF CONTENTS

I. BATSON ..................................................................................5
A. Batson Framework ..........................................................6
B. Strike-by-Strike Analysis ................................................9
II. STUN BELTS .......................................................................14
III. ANONYMOUS JURY............................................................21
IV. PROSECUTORIAL MISCONDUCT .........................................25
A. Opening and Closing Arguments ..................................25
B. Overview Witness .........................................................33
C. Cumulative Error ...........................................................47
V. RULE 404(b) EVIDENCE .....................................................50
VI. BRADY ...............................................................................52
VII. STATUTE OF LIMITATIONS ...............................................55
VIII. JOINDER .........................................................................61
1
Circuit Judge Rogers concurs in part in Part I, see infra
concurring opinion, and in part in Part V, see infra note 11.
2
Circuit Judge Kavanaugh does not join Parts IV.A.1 and
IV.A.2.
 3
IX. CONFRONTATION CLAUSE ................................................62
X. JENCKS ACT .......................................................................73
XI. RELIGIOUS CONVERSION TESTIMONY ...............................75
XII. TESTIMONY OF STEVE GRAHAM ......................................77
XIII. DESTRUCTION OF EVIDENCE ..........................................81
XIV. MULTIPLE CONSPIRACIES INSTRUCTIONS ......................81
XV. MOORE’S CONVICTION FOR CONTINUING CRIMINAL
ENTERPRISE ............................................................................84
XVI. MERGER OF MOORE’S MURDER CONVICTIONS ..............86
XVII. EXCLUSION OF ANTOINE WARD CONFESSION ..............87
XVIII. SMITH’S CONVICTION FOR MURDER OF ANTHONY DENT
................................................................................................91
XIX. SMITH’S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
................................................................................................94
XX. CONSPIRACY WITHDRAWAL INSTRUCTION ...................103
XXI. AIDING AND ABETTING INSTRUCTION ..........................105
XXII. SEVERANCE ................................................................113
XXIII. HANDY’S NEW TRIAL MOTIONS ................................117
A. Sufficiency of Evidence ..............................................119
B. Brady ...........................................................................121
XXIV. CONCLUSION .............................................................127

PER CURIAM: Six defendants appeal from judgments of
conviction in the district court on multiple charges, including
drug conspiracy, RICO conspiracy, continuing criminal
enterprise, murder, and other related charges in violation of
federal and District of Columbia laws. They assert a wide
variety of alleged errors covering, among other things,
evidentiary issues, both as to admission and sufficiency;
conduct of the trial; prosecutorial misconduct; and jury
instructions. Upon review, we conclude that most of the
asserted errors either were not erroneous or were harmless.
As to one category of issue involving alleged violations of the
Confrontation Clause of the Constitution, a Supreme Court
decision intervening between the trial and our consideration
 4
of the case compels us to remand convictions of some drug
charges (Counts 126-138) for further consideration by the
district court in light of the Supreme Court’s opinion. We
also remand for further proceedings a claim of ineffective
assistance of counsel raised by appellant Smith (Counts 4 and
5). We vacate one murder conviction as to appellant Moore
that, as the parties agree, merges with another conviction
(Count 32).

***

According to the indictment in the district court and the
evidence of the United States at trial, during the late 1980s
and 1990s, appellants Rodney Moore, Kevin Gray, John
Raynor, Calvin Smith, Timothy Handy, and Lionel Nunn,
along with others, some of whom were also indicted but tried
separately, conspired to conduct and did conduct an ongoing
drug distribution business in Washington, D.C. In the course
of conducting that business, various of the co-conspirators
committed a wide-ranging course of violence including 31
murders. The United States obtained a 158-count superseding
indictment upon which the defendants were tried by a jury.
After a trial lasting over ten months, the jury returned verdicts
of guilty on several of the charges, including the drug
conspiracy, 21 U.S.C. § 846, the RICO conspiracy, 18 U.S.C.
§ 1962(d), continuing criminal enterprise (Moore and Gray),
21 U.S.C. § 848(a)-(b), murder, D.C. Code § 22-2401, -3202;
D.C. Code § 22-2101; 18 U.S.C § 1959(a)(1); 21 U.S.C.
§ 848(e)(1)(A); 18 U.S.C. § 1512, assault with intent to
murder (Moore and Gray), D.C. Code § 22-503, -3202, illegal
use of a firearm (Moore, Gray, Raynor, Handy, and Nunn), 18
U.S.C. § 924(c), distribution of cocaine base and heroin
(Gray), 21 U.S.C. § 841(a)(1), possession with intent to
distribute heroin (Raynor), id., and tampering with a witness
(Handy), 18 U.S.C. § 1512(b). The trial court entered
 5
judgment imposing substantial criminal sentences generally
amounting to terms in excess of life imprisonment from
which the defendants now appeal.

Further details of the facts, evidence, and proceedings will
be set forth as necessary for the discussion of the issues raised
by appellants.

I. 3

The Constitution’s equal protection guarantee bars
prosecutors from using peremptory challenges to strike
prospective jurors on the basis of race. See Batson v.
Kentucky, 476 U.S. 79 (1986). In this case, although 9 of the
12 jurors were African-American, appellants argue that the
prosecution unconstitutionally used its peremptory challenges
to remove prospective jurors who were African-American.
The district court rejected appellants’ challenge. We affirm
the district court’s decision.

A Batson challenge proceeds in three steps: First, the
defendant must establish “a prima facie case of discriminatory
jury selection by the totality of the relevant facts about a
prosecutor’s conduct during the defendant’s own trial.”
Second, “the State [must] come forward with a neutral
explanation for challenging jurors within an arguably targeted
class.” Third, the “trial court then will have the duty to
determine if the defendant has established purposeful
discrimination.” Miller-El v. Dretke, 545 U.S. 231, 239
(2005) (alterations and internal quotation marks omitted). In
the district court, appellants argued that the prosecution’s use
of 34 peremptory strikes to remove African-Americans from

3
Circuit Judge Rogers filed a separate opinion concurring in
part in Part I.
 6
the venire for regular jurors established a prima facie case of
discrimination. Accepting that the prima facie hurdle was
cleared, the district court required the prosecution to explain
each of its peremptory challenges of African-Americans.
After the prosecution provided those explanations, the district
court required further argument from both sides as part of
Batson’s final stage. The court allowed the defense counsel
to dispute the validity of each government explanation and
required the prosecution to individually respond to the
defense’s argument on each disputed strike. The court
actively engaged in the entire process, consulting its notes and
correcting and questioning counsel. At the conclusion of the
multi-hour hearing, the district court ruled that appellants had
not “established purposeful discrimination.” Miller-El, 545
U.S. at 239; see also Purkett v. Elem, 514 U.S. 765, 768
(1995) (“[T]he ultimate burden of persuasion regarding racial
motivation rests with, and never shifts from, the opponent of
the strike.”).

In this court, appellants dispute the district court’s
conclusion that there was no Batson violation.

A.

Appellants’ challenge to the district court’s Batson
decision faces a demanding standard. “On appeal, a trial
court’s ruling on the issue of discriminatory intent must be
sustained unless it is clearly erroneous.” Snyder v. Louisiana,
552 U.S. 472, 477 (2008). The Supreme Court has
emphasized that the “trial court has a pivotal role in
evaluating Batson claims.” Id. The Court has explained that
the demeanor of the prosecutor exercising a challenged strike
is often “the best evidence of discriminatory intent.” Id.
(alterations omitted). The district court, unlike this court,
observed the prosecutor’s demeanor firsthand. Further, when
 7
the asserted basis for a strike is a prospective juror’s behavior
in court, the trial court will have observed and evaluated that
juror’s demeanor as well. See id. For those reasons, the
Supreme Court has stated that “in the absence of exceptional
circumstances, we would defer to the trial court” in resolving
a Batson claim. Id. (alterations omitted); see also Hernandez
v. New York, 500 U.S. 352, 365-66 (1991) (plurality opinion).

Appellants argue that we should reject the district court’s
findings because the court itself did not individually discuss
each challenged strike on the record. Batson’s third step
requires trial courts to closely analyze the prosecutor’s
proffered reason for each disputed strike in light of all the
relevant circumstances. See Miller-El, 545 U.S. at 241-42,
251-52. The record here demonstrates that the district court
appropriately exercised its Batson responsibilities. The
district court required three rounds of argument on each strike
of an African-American juror: a prosecution opening in which
the government individually justified each strike; a defense
response disputing those government explanations; and a
prosecution reply to every defense argument. Throughout the
hearing, the district court questioned counsel, reviewed its
own notes, and corrected mistakes by counsel. The district
court then concluded, based on the arguments and its personal
observation of the prosecutors and of the prospective jurors’
demeanor, that the government’s race-neutral explanations
were genuine. Appellants cite no controlling precedent
requiring a trial court to render its decision in a strike-by-
strike format. Given the obvious thoroughness of the district
court’s application of Batson’s third step, we cannot conclude
that the lack of strike-specific findings creates the sort of
“exceptional circumstances” that would overcome our
deference to the trial court. Snyder, 552 U.S. at 477.
 8
Moreover, the circumstances of this case seriously
undermine appellants’ claim. Nine of the 12 jurors seated in
this case were African-American. That jury composition
mirrored the make-up of the venire, which contained 68
African-Americans out of 90 persons in the pool from which
regular jurors were selected. Thus, while the prosecution
used many strikes to remove prospective African-American
jurors, that is largely explained by the fact that the jury pool
was predominately African-American. In addition, the
prosecutor’s strikes did not skew the racial composition of the
resulting jury. The circumstances here are a far cry from the
facts of cases in which the Supreme Court has found a Batson
violation. Cf. Snyder, 552 U.S. at 476 (all African-Americans
in jury pool struck by prosecution); Miller-El, 545 U.S. at
240-41 (10 of 11 African-Americans in jury pool after
dismissals for cause or by agreement struck by prosecution);
Batson, 476 U.S. at 100 (all African-Americans in jury pool
struck by prosecution).

Finally, in this case there are no extrinsic indicators of
racial discrimination of the kind found in successful Batson
challenges. For example, in Miller-El, a case in which the
trial occurred before the 1986 Batson decision, the Court
relied in part on the “widely known evidence of the general
policy of the Dallas County District Attorney’s Office to
exclude black venire members from juries.” Miller-El, 545
U.S. at 253. In contrast, the Supreme Court has explained
that cases where the stricken jurors are the same race as the
majority of victims and prosecution witnesses are unlikely
candidates for a finding of racial discrimination. See
Hernandez, 500 U.S. at 369-70 (plurality opinion). The
overall facts and circumstances of this case thus do not
support appellants’ claim of intentional discrimination. See
Snyder, 552 U.S. at 478 (“[I]n reviewing a ruling claimed to
 9
be Batson error, all of the circumstances that bear upon the
issue of racial animosity must be consulted.”).

B.

Although the circumstances of this case strongly suggest
that the prosecution did not use its peremptory strikes to
discriminate on the basis of race, those facts alone are not
dispositive. The dismissal of even a single prospective juror
on the basis of race violates equal protection principles. See
Snyder, 552 U.S. at 478. We therefore review each of the 11
strikes challenged by appellants. Cf. Bond v. Beard, 539 F.3d
256, 270 (3d Cir. 2008) (finding overall circumstances
suggest no Batson violation, but nonetheless conducting
analysis of each strike to resolve Batson claim).

Of the 11 strikes challenged on appeal, appellants
objected to the following seven strikes in the district court.
We review the district court’s findings on those seven strikes
for clear error. Snyder, 552 U.S. at 477. Because the district
court empanelled an anonymous jury in this case, we identify
each prospective juror using the numbers assigned by the
district court.

2932: Among its concerns about this prospective juror,
the prosecution noted 2932’s statement that long delays in
bringing criminal cases to trial impaired witnesses’ memories.
The prosecution worried that 2932 would be suspicious of the
government’s case because this case involved long delay and
the government was relying on witnesses’ memories of long-
past events. Appellants do not rebut the plausibility of that
specific, race-neutral objection or show that any other seated
juror worried about the effect of delay on witnesses’
memories.
 10
3559: The prosecution explained that it struck 3559 on
the basis of his youth. The government’s statement that it
struck every juror age 22 or younger, regardless of race,
remains unrebutted.

3872: The prosecution stated that it struck 3872 for
appearing disrespectful in court. Appellants cite trial
transcripts in an attempt to demonstrate that seated white
jurors might have behaved just as inappropriately. This is an
instance in which “[a]ppellate judges cannot on the basis of a
cold record easily second-guess a trial judge’s decision.” Rice
v. Collins, 546 U.S. 333, 343 (2006) (Breyer, J., concurring);
see Snyder, 552 U.S. at 483. We cannot tell from the record
whether there was anything inappropriate about those seated
jurors’ demeanors. And contrary to appellants’ assertion,
Snyder does not establish a rule that trial courts must make
specific findings about demeanor. Cf. Thaler v. Haynes, 130
S. Ct. 1171 (2010). Because appellants have not
demonstrated any “exceptional circumstances” that require
otherwise, we defer to the district court’s finding on an issue
that is “peculiarly within a trial judge’s province.” Snyder,
552 U.S. at 477.

4463: The prosecutor explained that 4463 appeared
unstable in court and that “his voir dire indicated numerous
answers that would make clear why the government opposes
this juror.” May 7, 2002 PM Tr. at 75. A quick review of
4463’s rambling statements, in which he detailed how his
brother had been unfairly framed for distribution of crack
cocaine, makes clear why a prosecutor would want to strike
4463, regardless of race. Appellants’ citation to a seated
white juror whose family also had drug problems is not
comparable. That juror calmly related the long-past problems
of his relatives, and expressly stated that his brother had been
dealt with fairly.
 11
4730: The government claims to have struck 4730 in part
because 4730 was suspicious of law enforcement and unsure
that the death penalty should apply in Washington, D.C.
Appellants question the strength of 4730’s views on this
subject, but they point to no seated juror who expressed
reservations about law enforcement similar to 4730’s concern
about “rogue police officers,” and a “bad experience” with
law enforcement that “[l]eft a bad taste.” Apr. 5, 2002 PM Tr.
at 23-24. 4730’s views on law enforcement provided a race-
neutral explanation for the prosecution’s decision to strike
her.

5698: This prospective juror was a former special police
officer whom the prosecutor claimed to have struck for being
“quiet,” “submissive,” and possibly not “strong enough” to be
an effective juror. May 7, 2002 PM Tr. at 42. To the extent
we can discern demeanor from a written transcript, 5698’s
colloquy with the district court suggests a passive, uncertain,
and quiet person. And passivity can be a plausible, race-
neutral reason to exclude a juror. See United States v.
Changco, 1 F.3d 837, 840 (9th Cir. 1993). Appellants may be
correct that former law enforcement officers are often
desirable jurors from the prosecution’s perspective. But that
does not bar the prosecution from dismissing any particular
juror because the government believes her personality would
make her a less than desirable juror from the prosecution’s
perspective.

5773: The prosecution claimed to have struck 5773 due to
5773’s concerns about imposing the death penalty.
Appellants respond that seated white jurors appeared equally
hostile to the death penalty. We disagree. As to the seated
white juror whose views come closest to matching 5773’s, he
repeatedly followed questions about his ability to impose the
death penalty with notations such as “I would try to abide by
 12
the Court’s instruction, not my personal belief.” By contrast,
5773’s doubts about the death penalty were sufficiently
salient that he used his questionnaire to indicate that he had
concerns about his ability to be a fair juror. The prosecution
thus had legitimate grounds to suspect that 5773 would be
significantly more hesitant to impose the death penalty than
the seated white juror.

In the district court the defense did not object to the
prosecution’s strike of the following four prospective jurors.
The district court’s rulings on these strikes are therefore
reviewed only for plain error. See, e.g., United States v.
Charlton, 600 F.3d 43, 50 (1st Cir. 2010).

866: The prosecution explained that it struck 866 because
866 “had a relative who had been convicted of murder.” May
7, 2002 PM Tr. at 35. The record shows that 866’s nephew,
with whom she was personally close, murdered his wife and
was then imprisoned, where 866 believes he was abused by
his guards. Appellants’ attempts to minimize the potential
effect of 866’s experiences with murder convictions and to
draw comparisons to seated jurors who had relatives
convicted of much less serious crimes are not convincing.

2486: The prosecution struck 2486 “based on things she
said about her prior jury service . . . as well as other
statements in her questionnaire.” May 7, 2002 PM Tr. at 39.
2486’s questionnaire and the transcript of what she said
during voir dire refer to her participation in an acquittal
during her prior jury service, which she attributed to the
prosecution’s lack of direct evidence. The record also
demonstrates 2486’s reticence to impose the death penalty
and suspicion of law enforcement competence. Appellants
now contend that the prosecutor’s mere reference to 2486’s
statements and questionnaire responses is too vague to qualify
 13
as a credible, race-neutral explanation. But the prosecution
had no reason to give a more detailed explanation, because
appellants did not question this strike in the district court.
Given that the record referenced by the prosecutor does in fact
reflect an objective basis for the prosecutor’s proffered
explanation, we cannot say that the district court plainly erred
in finding no racial motivation for this strike.

3143: The prosecution claims that it struck 3143 because
3143 demanded a higher standard of proof to impose the
death penalty and was generally hostile to the death penalty.
On appeal, appellants offer a lengthy comparison of 3143’s
views to those of seated white jurors. The government
attempts — with considerable success — to distinguish the
seated jurors’ views from 3143’s, but the government also has
a more telling point: It is difficult to say that the district court
plainly erred in not noticing similarities between those seated
jurors and 3143, given that none of the six defendants’
lawyers noticed those similarities during jury selection. We
reject appellants’ challenge to the prosecution strike of 3143.

3505: The prosecution explained its strike of 3505 based
on 3505’s statements in her questionnaire and during voir dire
that the death penalty is “never justified.” Appellants do not
argue either that the prosecution’s explanation is false or that
other seated jurors had the same views. Appellants argue
only that 3505 also claimed to be able to set her personal
views aside. That in no way implies that the prosecutor
considered race in striking 3505. This challenge could not
succeed under any standard of review, much less under plain
error review.

In short, appellants have failed to sufficiently undermine
the government’s race-neutral explanations for its peremptory
strikes of prospective African-American jurors. Moreover,
 14
the circumstances of this case strongly suggest that the
prosecution did not discriminate on the basis of race.
Especially given the deferential standard under which we
review challenges to the district court’s decisions on this
issue, we reject appellants’ Batson claims.

II.

A week before trial began, the government filed a motion
requesting that the district court order appellants to wear stun
belts during trial. Gray filed written opposition to the motion
and, at a pretrial hearing five days later, all appellants
opposed the motion orally. Feb. 27, 2002 PM Tr. at 36-52.
The court granted the government’s motion, id. at 57, and
issued a memorandum opinion in support of its order, see
United States v. Gray, 254 F. Supp. 2d 1 (D.D.C. 2002).
Appellants contend that the district court violated their due
process rights when it ordered them to wear stun belts at trial.

The right to a fair trial is a fundamental liberty secured by
the due process guarantee of the Fifth and Fourteenth
Amendments. Estelle v. Williams, 425 U.S. 501, 503 (1976);
In re Murchison, 349 U.S. 133, 136 (1955). Invoking this fair
trial right, the Supreme Court has stated that certain
government practices during criminal trials prejudice
defendants because they offend three “fundamental legal
principles,” Deck v. Missouri, 544 U.S. 622, 630 (2005): (1)
that “the criminal process presumes that the defendant is
innocent until proved guilty,” id.; (2) that “the Constitution, in
order to help the accused secure a meaningful defense,
provides him with a right to counsel,” id. at 631; and (3) that
“judges must seek to maintain a judicial process that is a
dignified process,” id. When a government practice is
prejudicial because it either inherently or in a particular
defendant’s case offends these principles, the Court has
 15
forbidden district courts from utilizing the practice unless it is
justified by an essential state interest, such as courtroom
security or escape prevention, specific to the defendant on
trial. See, e.g., Deck, 544 U.S. 622; Holbrook v. Flynn, 475
U.S. 560 (1986); Estelle, 425 U.S. 501.

Accordingly, the Supreme Court has held it is inherently
prejudicial to require a criminal defendant to wear jail garb
during trial and therefore, because no state interest is ever
served by the practice, it violates his fair trial right. See
Estelle, 425 U.S. at 505, 512-13. Similarly, the Court has
held that visibly restraining a criminal defendant during either
a criminal trial or the penalty phase of a capital prosecution is
inherently prejudicial and thus is permissible only when
justified by an essential state interest specific to the defendant.
See Deck, 544 U.S. at 629. In contrast, the Court has held that
deployment of security personnel in a courtroom is not
inherently prejudicial, and is thus permissible, regardless of
the state interest served, as long as it is not actually prejudicial
in a particular case. See Holbrook, 475 U.S. at 568-69, 572.

Applying these lessons to the case before us, if the use of
stun belts to restrain criminal defendants at trial either is
inherently prejudicial or in this case was actually prejudicial
to the defendants, the district court had the obligation to
determine whether the belts were justified by an essential
governmental interest specific to the defendants on trial.
Appellants, who argue that stun belts are inherently
prejudicial, contend that the district court failed to meet this
obligation for three reasons. First, they assert that the district
court failed to make an individualized determination of
whether a stun belt was needed to restrain each defendant.
Second, they argue that the district court was required but
refused to hold an evidentiary hearing to resolve factual
disputes they raised concerning the visibility of, necessity for,
 16
and alternatives to the stun belts. Finally, appellants maintain
that the district court erroneously failed to consider how the
stun belts would affect appellants’ right to communicate with
counsel and assist in their own defense. On review, we hold
that, even assuming that stun belts are inherently or were
actually prejudicial, the district court did all that was required
of it.

In review of a district court’s authorization of an
inherently or actually prejudicial governmental practice, we
find error only when the district court has abused its
discretion. See Deck, 544 U.S. at 629 (“[T]he Fifth and
Fourteenth Amendments prohibit the use of physical restraints
visible to the jury absent a trial court determination, in the
exercise of its discretion, that they are justified by a state
interest specific to a particular trial.”); United States v.
Wardell, 591 F.3d 1279, 1293 (10th Cir. 2009); United States
v. Durham, 287 F.3d 1297, 1304 (11th Cir. 2002).

It is true, as appellants say, that prior to authorizing the
use of an inherently or actually prejudicial government
practice, the district court must consider each defendant
before him and determine whether the practice serves an
essential interest in the particular trial at hand. Deck, 544
U.S. at 624, 633; Holbrook, 475 U.S. at 568-69. However,
the district court did just this. In a memorandum opinion, the
court carefully analyzed the following factors in its decision
to require stun belts:

1) the seriousness of the crimes charged and the severity
of the potential sentences; 2) the numerous allegations of
threats of violence made by the defendants against
witnesses; 3) previous guilty pleas or convictions of a
substantial number of the defendants to prior gun charges
and/or violent crimes; 4) allegations of gang activity, and
 17
the likelihood that associates or rivals of the alleged gang
may be present at the trial; 5) the opinion of the U.S.
Marshal for this District, particularly as it relates to
knowledge of security in this courthouse and of cases of
this nature; 6) potential prejudice to the defendants from
the use of the stun belts; 7) likelihood of accidental
activation of the stun belts; 8) potential danger to the
defendants if the belts are activated; 9) the availability and
viability of other means to ensure courtroom security; 10)
the potential danger for the defendants and others present
in the courtroom if other means are used to secure the
courtroom; and 11) the existence of a clear written policy
governing the activation of stun belts worn by defendants.

Gray, 254 F. Supp. 2d at 4. Finding that “[e]ach of the eleven
factors” militated in favor of imposing stun belts, the district
court concluded that the use of stun belts would “best
preserve . . . the security of the courtroom.” Id. at 4-6.

The district court’s memorandum opinion demonstrates
that it considered the security concerns presented by the
particular defendants at trial before making the determination
that stun belts were appropriate. It thoroughly examined
factors relevant to each defendant and, in the exercise of its
broad discretion, made a determination based on those factors.
That appellants shared many of the same characteristics (e.g.,
they were charged in the same conspiracy, they all faced
either the death penalty or life sentences) does not mean the
district court failed to consider them individually. And that
the district court reached a result with which the defendants
disagree does not mean it abused its discretion.

We also reject appellants’ contention that the district court
was obligated to hold an evidentiary hearing. When making
the discretionary decision whether to authorize an inherently
 18
or actually prejudicial government practice at trial, “[a]
formal evidentiary hearing may not be required, but if the
factual basis for the extraordinary security is controverted, the
taking of evidence and finding of facts may be necessary.”
United States v. Theriault, 531 F.2d 281, 285 (5th Cir. 1976);
cf. United States v. Law, 528 F.3d 888, 903-04 (D.C. Cir.
2008); United States v. Microsoft Corp., 253 F.3d 34, 101
(D.C. Cir. 2001) (holding that district courts are not required
to conduct evidentiary hearings prior to issuing relief in civil
cases when “there are no disputed factual issues regarding the
matter of relief”). Although the defense pointed out that due
to the short notice of the hearing the evidence before the
district court about how stun belts functioned was provided
entirely by the government and there had “to be another side
of the story with respect to the proffers that [the government
has] made,” appellants did not allege any specific inaccuracy
or misrepresentation. Feb. 27, 2002 PM Tr. at 44-46. While
appellants disputed the government’s contention that other
measures would be inadequate to secure the courtroom, id. at
49, this dispute is, in essence, the ultimate question the district
court must answer. See Durham, 287 F.3d at 1304 (“[A]
decision to apply leg shackles to the defendant ‘must be
subjected to close judicial scrutiny to determine if there was
an essential state interest furthered by compelling a defendant
to wear shackles and whether less restrictive, less prejudicial
methods of restraint were considered or could have been
employed.’” (quoting Elledge v. Dugger, 823 F.2d 1439, 1451
(11th Cir. 1987) (per curiam))). Appellants must make a
more specific factual challenge.

The only specific factual matter relevant to the district
court’s determination about which the government and
appellants meaningfully disagreed was whether the stun belts
would be visible. Feb. 27, 2002 PM Tr. at 38, 44, 56-57.
However, in its memorandum opinion, the court accepted
 19
appellants’ contention that there was some risk the stun belts
would be visible. The court then specifically ordered
precautions to reduce the visibility of the belts. The opinion
states: “Although the Court does not believe that it is likely
that any juror will see the stun belts, the Court will take
precautions to minimize prejudice to the defendants. The
defendants will be brought into the courtroom before the jury
is brought in, and will be escorted from the courtroom after
the jury has left.” Gray, 254 F. Supp. 2d at 4. Under these
circumstances, we hold that the district court acted within its
discretion when it declined to hold an evidentiary hearing.

Turning to appellants’ claim that the district court erred by
not considering the effect of stun belts on appellants’ ability
to confer with their counsel and participate in their defense,
we again find no error. As discussed above, whether wearing
a stun belt affects a criminal defendant’s ability to confer with
counsel and participate in his defense is one of the three
questions relevant to the determination of whether, before
authorizing such a restraint, a district court must first
determine whether it is justified by an essential governmental
interest specific to the defendant on trial. When the district
court made the appropriate findings to determine that the use
of stun belts was so justified in appellants’ case, the court
implicitly assumed that the belts did risk negatively affecting
appellants’ abilities in this way. It was not required to revisit
this question in its substantive decisionmaking process. We
also note that while appellants direct us to case law that warns
abstractly of the potential harm of stun belts, see, e.g.,
Durham, 287 F.3d at 1305-06, they have offered us no
evidence stun belts in any way affected their communication
with their counsel or their participation in their defense.

Moore also repackages appellants’ arguments that the
district court abused its discretion by authorizing stun belts
 20
into an objection to the court’s refusal to grant his post-trial
motion for a new trial. Before the district court Moore argued
that he was entitled to a new trial because “a sufficient factual
predicate did not exist” to justify the district court’s
authorization of stun belts. Def. Moore’s Mot. for New Trial
at 2 (June 8, 2003). He also maintained that a new trial was
warranted because his stun belt was activated, outside the
presence of the jury. On appeal, Moore argues that he was
physically and psychologically injured by the activation of the
stun belt and that these injuries interfered with his ability to
communicate with his attorney and assist in his own defense.

Moore’s stun belt was activated on November 12, 2002,
while trial was ongoing but before trial had started on that
day. Nov. 12, 2002 AM Trial Tr. at 8. Defense counsel
reported the incident to the court and asked the court to
consider taking a break. Id. at 97. The court did so and, after
reconvening, announced that it had asked a nurse to examine
Moore and that the nurse had reported that Moore “fe[lt] that
the use of the device was unjustified,” but that he was
“physically . . . all right” and “was willing to go forward
today.” Id. at 98. Moore’s counsel did not challenge these
representations or otherwise object further. Id.

We reject Moore’s claims. That Moore’s stun belt was
activated does not undermine the district court’s reasoned
decision, which we have upheld, to require him to wear a stun
belt. Insofar as Moore now claims that the district court
violated his constitutional rights not by requiring him to wear
the belt but by continuing the trial after the belt’s activation,
we again find no error. As noted, the district court acceded to
the request for a break by Moore’s counsel, who never
disputed the representation by the nurse, who had examined
Moore, that Moore was ready to proceed with the trial.
 21
III.

Appellants contend that the district court erred in
empaneling an anonymous jury insofar as the prospective
jurors’ names, addresses, and places of employment were
withheld. Our review is for abuse of discretion, despite
appellants’ contention that the de novo standard applies
because “constitutional principles are involved.” Appellants’
Br. at 73. The court rejected this view in United States v.
Childress, 58 F.3d 693 (D.C. Cir. 1995), a case concerning (in
part) whether “the use of anonymous juries violates the
Constitution,” id. at 702 (emphasis added), because
“[d]ecisions on . . . anonymity require a trial court to make a
sensitive appraisal of the climate surrounding a trial and a
prediction as to the potential security or publicity problems
that may arise during the proceedings,” id.

In United States v. Edmond, 52 F.3d 1080 (D.C. Cir.
1995), the court advised that “[i]n general, the [district] court
should not order the empaneling of an anonymous jury
without (a) concluding that there is a strong reason to believe
the jury needs protection, and (b) taking reasonable
precautions to minimize any prejudicial effects on the
defendant and to ensure that his fundamental rights are
protected.” Id. at 1090 (first alteration in original) (citation
and quotation marks omitted). In determining whether such
protection is warranted, the court has found its analysis aided
by five factors identified by the Eleventh Circuit:

(1) the defendant’s involvement in organized crime,
(2) the defendant’s participation in a group with the
capacity to harm jurors, (3) the defendant’s past
attempts to interfere with the judicial process, (4) the
potential that, if convicted, the defendant will suffer a
lengthy incarceration and substantial monetary
 22
penalties, and (5) extensive publicity that could
enhance the possibility that jurors’ names would
become public and expose them to intimidation or
harassment.

Id. at 1091 (quoting United States v. Ross, 33 F.3d 1507, 1520
(11th Cir. 1994)). Finding that all five factors were satisfied
here, the district court granted the government’s motion for an
anonymous jury. As justification, the district court noted that
appellants were charged in the superseding indictment with
participating in a drug and RICO conspiracy that involved
multiple acts of violence using firearms, in addition to
threatening potential witnesses and preventing individuals
from cooperating with law enforcement, and that if convicted
appellants faced the maximum penalty of death or life
imprisonment. Pointing to two Washington Post articles, the
district court noted that this case had garnered media attention
capable of increasing the potential danger to jurors. See
United States v. Gray, No. 00-cr-157, at 12-13 (D.D.C. Feb.
7, 2002) (resolving pretrial motions).

Appellants challenge the district court’s decision to
empanel an anonymous jury on three grounds. None is
persuasive. First, appellants maintain that the district court’s
decision was unfounded because the superseding indictment
did not allege any history of juror intimidation. This
argument misunderstands and too narrowly construes the
requirements set forth in Edmond. As the court explained,
“we do not believe such evidence [of jury tampering] is
necessary in every case. Rather, we think the District Court
. . . reasonably could have ascertained a threat to jurors from
the charges in the indictment.” Edmond, 52 F.3d at 1091.
Here, the particular allegations of “multiple acts of violence to
prevent individuals from contacting law enforcement,” Gray,
No. 00-cr-157, at 13 (Feb. 7, 2002), were sufficient, viewed in
 23
context, for the district court to be concerned about
appellants’ capacity to harm jurors and interfere with the
judicial process. See Edmond, 52 F.3d at 1091-92. As
support, the district court cited the factual findings set forth in
its November 15, 2001 memorandum regarding appellants’
history of interfering with the judicial process, in resolving
various discovery and evidentiary disclosure requests. See
United States v. Gray, No. 00-cr-157, at 5-12 (D.D.C. Nov.
15, 2001).

Second, appellants maintain that media interest in this
criminal prosecution would not endanger jurors’ safety. The
district court identified two Washington Post articles covering
appellants’ case as a prosecution brought against “Murder,
Inc.” Both articles appeared on the front page of the Metro
section and described the number of alleged murders as
historic and unprecedented. Such evidence of “initial media
interest,” United States v. Wilson, 160 F.3d 732, 746 (D.C.
Cir. 1998), in a high-profile prosecution of a major drug
conspiracy involving multiple defendants over a substantial
period of time and alleged purposeful and random acts of
murder supports the district court’s decision.

Third, appellants suggest that the district court failed to
take reasonable precautions to minimize any potential
prejudice to them as a consequence of juror anonymity. In
granting the motion for an anonymous jury, the district court
advised that it would “use a questionnaire and extensive voir
dire to examine the jurors’ backgrounds” and, in addition to
instructing jurors that appellants were presumed innocent
until proven guilty, “provide a neutral explanation to the
jurors regarding their anonymity.” Gray, No. 00-cr-157, at 13
(Feb. 7, 2002). These precautions were, in fact, taken. A
combination of instructions downplaying the significance of
jurors’ anonymity and a lengthy voir dire questionnaire can
 24
adequately safeguard a defendant’s fundamental rights. See,
e.g., Childress, 58 F.3d at 701-02; Edmond, 52 F.3d at 1092-
93. Here the neutral instruction, set forth in the jury
questionnaire, 4 informed jurors that they would meet at
specific locations to be escorted to and from the courthouse
“for [their] convenience as well as to assure both the
government and the defense that no one has attempted to
contact, communicate, or influence the jury.” For voir dire,
the 46-page jury questionnaire — at least double the length of
the jury questionnaires that passed muster in Childress and
Edmond — provided appellants with “a broad variety of
personal information, including the quadrant of the city in
which jurors resided, their educational history, marital status,
military service, employment status and work description,
their spouse’s and children’s employment, and their
experience with crime, drugs, and law enforcement.”
Edmond, 52 F.3d at 1092. This sufficed “to compensate for
the information denied by juror anonymity” because “[i]t
elicited information . . . far more extensive and detailed than
the generalizations appellants might have drawn from jurors’
mere names and addresses.” Id. Appellants have pointed to
no particular example of prejudice.

Accordingly, we hold that the district court, having made
the necessary findings under the Edmond factors, did not

4
Although appellants note in the “background” section of their
brief that the district court’s instruction was not given orally or
repeated during the trial, appellants do not pursue this issue in their
argument section. We therefore have no occasion to consider
whether a written instruction that is not orally repeated thereafter
would alone be an adequate safeguard. See Am. Wildlands v.
Kempthorne, 530 F.3d 991, 1001 (D.C. Cir. 2008); FED. R. APP. P.
28(a)(9).
 25
abuse its discretion in granting the government’s motion for
an anonymous jury.

IV.

Appellants raise numerous claims of prosecutorial
misconduct, including inflaming the passions and prejudices
of the jury, vouching for and bolstering the credibility of
witnesses, soliciting testimony to that effect, denying
appellants a presumption of innocence through elicitation of
improper opinion testimony, and violating appellants’ Sixth
Amendment right by introducing evidence that they
associated with and often sought the advice of legal counsel. 5
We have reviewed these claims and limit our discussion to
those having arguable merit, and concluded that even when
appellants’ claims are viewed cumulatively, they fail to show
a violation of their due process rights as would entitle them to
a new trial.

A. 6

Opening and Closing Arguments. Appellants contend that
the prosecutor’s opening argument to the jury was improper
and substantially prejudiced the trial proceedings by
interfering with the jury’s ability to properly assess the
evidence. Our review of allegedly improper prosecutorial
arguments is for substantial prejudice where the defendants

5
Appellants also incorporate their arguments relating to Brady
v. Maryland, 373 U.S. 83 (1963), and the federal bribery statute, 18
U.S.C. § 201(c)(2), which are addressed in Parts VI and XII,
respectively.
6
Circuit Judge Kavanaugh does not join Parts IV.A.1 and
IV.A.2.
 26
lodged an objection, but we apply the plain error standard
where they failed to object. See United States v. Small, 74
F.3d 1276, 1281 (D.C. Cir. 1996); see also United States v.
Catlett, 97 F.3d 565, 573 (D.C. Cir. 1996). When, as here,
the alleged prosecutorial misconduct forms the basis for an
unsuccessful motion for a mistrial, our review of the district
court’s denial of that motion is for abuse of discretion. See
Small, 74 F.3d at 1284. This court has identified three factors
that guide the determination whether improper remarks in
closing and opening statements prejudiced a defendant so as
to warrant reversal, under either the substantial prejudice or
plain error standard: “(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.” United States v. Becton,
601 F.3d 588, 598 (D.C. Cir. 2010); see also United States v.
Gartmon, 146 F.3d 1015, 1026 (D.C. Cir. 1998). In addition,
this court will presume “that a jury acts with common sense
and discrimination when confronted with an improper remark
from a prosecutor and owes deference to the district court’s
assessment of such a statement’s prejudicial impact on the
jury.” United States v. Childress, 58 F.3d 693, 716 (D.C. Cir.
1995) (citation and internal quotation marks omitted).

The Supreme Court has described the federal prosecutor
as occupying a position of public trust:

The United States Attorney is the representative not of
an ordinary party to a controversy, but of a
sovereignty whose obligation to govern impartially is
as compelling as its obligation to govern at all; and
whose interest, therefore, in a criminal prosecution is
not that it shall win a case, but that justice shall be
done. As such, he is in a peculiar and very definite
sense the servant of the law, the twofold aim of which
is that guilt shall not escape or innocence suffer. He
 27
may prosecute with earnestness and vigor — indeed,
he should do so. But, while he may strike hard blows,
he is not at liberty to strike foul ones. It is as much his
duty to refrain from improper methods calculated to
produce a wrongful conviction as it is to use every
legitimate means to bring about a just one.

Berger v. United States, 295 U.S. 78, 88 (1935); accord
Taylor v. United States, 413 F.2d 1095 (D.C. Cir. 1969). It
follows from this rigorous standard that, in making opening
and closing arguments, a prosecutor has an obligation “to
avoid making statements of fact to the jury not supported by
proper evidence introduced during trial,” even when the
misstatements are made in good faith. Gaither, 413 F.2d at
1079. Equally well settled, “[a] prosecutor may not make
comments designed to inflame the passions or prejudices of
the jury.” United States v. Johnson, 231 F.3d 43, 47 (D.C.
Cir. 2000); see Childress, 58 F.3d at 715. These general
principles apply to, and inform the particular function of, the
government’s opening and closing arguments in a criminal
trial.

1. “The purpose of an opening statement is to provid[e]
background on objective facts while avoiding prejudicial
references,” and hence “[t]he prosecutor’s opening statement
should be an objective summary of the evidence reasonably
expected to be produced, and the prosecutor should not use
the opening statement as an opportunity to poison the jury’s
mind against the defendant or to recite items of highly
questionable evidence.” United States v. Thomas, 114 F.3d
228, 247 (D.C. Cir. 1997) (alterations in original) (citations
and internal quotation marks omitted). So understood,
prosecutorial misconduct exists where the government’s
argument touches upon facts prejudicial to the defendant that
the government fails to support by admissible evidence at
 28
trial. See Small, 74 F.3d at 1283. On the other hand, a
prosecutor’s reference in opening argument to the defendants
as “two armed gunmen driving through the streets of D.C.,
armed to the teeth, dressed for action, carrying a load of
dope,” although strong and vivid, was not prosecutorial
misconduct because the statement was supported by ample
evidence introduced at trial. United States v. Moore, 104 F.3d
377, 390 (D.C. Cir. 1997).

The prosecutor’s opening argument appears to have
improperly departed from the standard in Berger and applied
to opening arguments by this court. As in Small, 74 F.3d at
1283, it appears “the prosecutor came close to the line . . . in
several instances and crossed it in others.” For example,
appellants were charged with committing 31 murders, and the
prosecutor’s repeated use of the word “execute” at the start of
the trial seems to run afoul of the concern expressed by the
court in United States v. Jones, 482 F.2d 747, 753 (D.C. Cir.
1973), in stating the court could “not condone” the
prosecutor’s reference during closing argument to the
defendant as an “executioner.” More generally, the opening
argument includes a number of instances where the prosecutor
went beyond merely providing an “objective summary of the
evidence.” Thomas, 114 F.3d at 248 (citation and quotation
marks omitted). Such statements referring to the murdered
victims as “[w]here there once was face and life, now there is
nothing but empty black space. . . . Where there once was life,
now there’s death,” May 9, 2002 PM Trial Tr. at 113, are
neither based on evidence nor free from innuendo. Rather,
they attempt to appeal to the jury’s emotions by dramatic
effect. See Childress, 58 F.3d at 715. Although other
statements listing the 31 murder victims by names and dates
on which they were killed are grounded in admissible
evidence that the government intended to introduce at trial,
this evidentiary nexus became tenuous once the prosecutor
 29
began discussing the victims’ first days of school, favorite
songs, families, mothers, fathers, coffins, and funerals. Cf.
United States v. Dominguez, 835 F.2d 694, 700 (7th Cir.
1987). Indeed, the district court recognized that although the
prosecutor’s opening argument “was fairly factually stated” it
contained “some hyperbole,” May 9, 2002 PM Trial Tr. at
127, a disfavored technique, see United States v. North, 910
F.2d 843, 895 (D.C. Cir. 1990); United States v. Bouck, 877
F.2d 828, 831 (10th Cir. 1989); Dominguez, 835 F.2d at 701. 7
Although the government is not required to make its opening
argument in a rote manner, the court has admonished that “an
opening statement to the jury should be carefully phrased to
avoid overstatement.” Thomas, 114 F.3d at 248. It is the
government’s opportunity to present the jury with argument
based “on objective facts while avoiding prejudicial
references.” Id. at 247 (emphases added) (citation and
quotation marks omitted).

7
At the conclusion of the prosecutor’s opening statement, the
district court sua sponte instructed the jury, as it had at the outset of
the trial, that

the statements of the lawyers aren’t evidence. They’re
intended to help you follow the evidence when the
evidence is introduced. The defendants deny these charges,
and you should keep an open mind until after you’ve heard
all the evidence and I give you my final instructions on the
law.

May 9, 2002 PM Trial Tr. at 114 (paragraph break omitted). The
district court then denied appellants’ oral motions for a mistrial. It
explained that the jury instruction “takes care of any other
problems” and that it “didn’t find the opening to be inflammatory in
the sense that defense counsel saw it . . . but, rather, was fairly
factually stated with some hyperbole.” Id. at 127.
 30
2. “The sole purpose of closing argument is to assist the
jury in analyzing the evidence,” and hence courts have
recognized that the prosecutor (as well as defense counsel) is
afforded some leeway in “stat[ing] conclusions drawn from
the evidence,” United States v. Bailey, 123 F.3d 1381, 1400
(11th Cir. 1997) (citation and quotation marks omitted); see
also Herring v. New York, 422 U.S. 853, 862 (1975); 6
WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE § 24.7(b)
(3d ed. 2007). “[I]n closing argument counsel may not refer
to, or rely upon, evidence unless the trial court has admitted
it.” United States v. Maddox, 156 F.3d 1280, 1282 (D.C. Cir.
1998); see also Small, 74 F.3d at 1280. But the prosecutor
may, for instance, draw inferences from evidence that support
the government’s theory of the case so long as the prosecutor
does not intentionally misrepresent the evidence. See United
States v. Deloach, 530 F.2d 990, 1000 (D.C. Cir. 1975).
Indeed, the prosecutor “may strike hard blows,” but not “foul
ones.” Berger, 295 U.S. at 88. Because the line between
permissible and impermissible arguments will not always be
clear, the inquiry is necessarily contextual. See Catlett, 97
F.3d at 572; Deloach, 530 F.2d at 999-1000.

Some statements by the prosecutor during closing
argument appear problematic. Illustrative is the prosecutor’s
invitation for the jurors to “imagine Scott Downing,” one of
the murder victims, in “the last few minutes of [his] life.”
The prosecutor told the jury:

Scott Downing is bound with duct tape. It’s pitch
black in the back of that U-haul. He does not know
what’s going to happen to him. He must — he must
wonder if he’s going to live through this night. . . .
He’s taken out of that U-haul. He tries to talk but he
can’t. All he can do is mumble. He feels the grass
under his body. He feels the gravel of the road. . . .
 31
And then a gun is placed to the back of his head and
two bullets.

Nov. 21, 2002 AM Trial Tr. at 112-13. On appeal, the
government responds, in a footnote, that this narrative “had
sympathetic overtones” only “[a]t a superficial level” because
the jury heard evidence that Downing had been kidnapped,
bound and gagged, and shot by the side of the road.
Appellee’s Br. at 96 n.68. This response, however, misses the
fundamental distinction between permissible and
impermissible closing arguments. In summarizing evidence
supporting conviction, a prosecutor may not take artistic
license with the trial evidence, construct a more dramatic
version of the events, provide conjecture about a victim’s
state of mind, and then defend against a prosecutorial
misconduct claim by maintaining the statements are “fact-
based.” Sensationalization, loosely drawn from facts
presented during the trial, is still a “statement[] of fact to the
jury not supported by proper evidence introduced during
trial,” Gaither, 413 F.2d at 1079, clearly “designed to inflame
the passions or prejudices of the jury,” Johnson, 231 F.3d at
47. Although not as egregious as comparing appellants to
Hitler, as occurred in North, 910 F.2d at 895, there are, as
every prosecutor knows, limits to striking “hard blows,”
Berger, 295 U.S. at 88.

3. Nonetheless, assuming, as appellants contend, that
prosecutorial misconduct occurred during the arguments to
the jury, it did not substantially prejudice appellants.
Although the specific arguments to which appellants object
appeared at times to address central issues in the case, there
was overwhelming evidence of appellants’ guilt of the crimes
implicated by the prosecutor’s purported misconduct, and the
district court gave general limiting instructions on the
arguments of counsel to the jury at the beginning of the trial,
 32
after the prosecutor’s opening argument, and during the final
instructions to the jury before it began deliberating. See
Thomas, 114 F.3d at 249; Gaither, 413 F.2d at 1079.

Appellants’ reliance on United States v. Moore, 375 F.3d
259 (3d Cir. 2004), is misplaced. In that case the prosecutor’s
closing argument compared the defendant to a 9/11 “terrorist”
on the eve of the first anniversary of those events and
referenced irrelevant evidence that the defendant was forcing
children to sell drugs. Reversal of the convictions, however,
was based on the fact that “[i]nadmissible evidence and
highly inflammatory statements came rolling in unimpeded”
throughout the trial in such a pervasive manner as to
undermine the soundness of the jury verdict. Id. at 263-65.
This court applies a similar standard to the prejudice inquiry:
“[A]bsent ‘consistent and repeated misrepresentation’ to
influence a jury, ‘[i]solated passages of a prosecutor’s
argument, billed in advance to the jury as a matter of opinion
not of evidence, do not reach the same proportions’” of severe
misconduct; by contrast, “tainted closing arguments that
follow on the heels of improper and indecorous prosecutorial
conduct during trial are more likely to amount to the type of
severe misconduct that justifies reversing a conviction.”
North, 910 F.2d at 897 (second alteration in original) (quoting
Donnelly v. DeChristoforo, 416 U.S. 637, 646 (1974)). But
unlike in the Third Circuit case, that standard is not met in the
instant case.

Here, the severity of what appellants have identified on
appeal as misconduct was limited to relatively small portions
of lengthy opening and closing arguments. See United States
v. Monaghan, 741 F.2d 1434, 1443 (D.C. Cir. 1984). As this
court has observed on occasion, “the length of time between
the prosecutor’s opening statement and jury deliberations” —
seven months in the instant case — “makes it unlikely that
 33
specific allegations in the opening profoundly influenced
those deliberations.” United States v. Williams-Davis, 90
F.3d 490, 508 (D.C. Cir. 1996). Moreover, the district court
repeated its general limiting instruction that the statements of
counsel are not evidence at the outset of the trial and
following the prosecutor’s opening argument, May 9, 2002
PM Trial Tr. at 114, and again after closing arguments in
giving final instructions to the jury, see Dec. 9, 2002 AM
Trial Tr. at 72. This is usually a strong ameliorative
consideration for prosecutorial misconduct during opening,
see Thomas, 114 F.3d at 249, and closing argument,
Childress, 58 F.3d at 716; North, 910 F.2d at 897; United
States v. Hawkins, 595 F.2d 751, 754-55 (D.C. Cir. 1978).
Although the type of general instruction given here is not a
guarantee for the government as necessarily mitigating the
prejudicial effects of prosecutorial misconduct in arguments,
see North, 910 F.2d at 897 n.33, this is not a “particularly
egregious case[]” that would require additional cautionary and
limiting instructions, and the defense did not request them,
Thomas, 114 F.3d at 249 (citation and quotation marks
omitted). Under the circumstances, we conclude, assuming
prosecutorial misconduct during opening and closing
arguments to the jury, that the misconduct did not
impermissibly and prejudicially interfere with the jury’s
ability to assess the evidence.

B.

Overview Witness. More problematic is the government’s
use of a Federal Bureau of Investigation (“FBI”) agent as an
overview witness. FBI Agent Daniel Sparks testified as the
first witness in the government’s case-in-chief. His testimony
provided an overview of the government’s case, setting forth
for the jury the script of the testimony and evidence the jury
could expect the government to present in its case-in-chief.
 34
Further, he expressed his opinion, based on his training and
experience, about the nature of the investigation conducted in
this case.

Appellants contend that the use of an overview witness as
the government’s first witness improperly permitted the
government, over defense objections, to elicit FBI Agent
Sparks’s opinions about the charged crimes, the reasons for
appellants’ actions in various circumstances, the nature of the
charged conspiracy and the relationships between co-
conspirators, including the cooperating co-conspirators who
testified as government witnesses, and the strength of the
evidence — all before the government had presented any such
evidence. Appellants suggest that FBI Agent Sparks’s
testimony left the impression for the jury that it should accept
that the co-conspirator cooperating witnesses would fully and
truthfully recount the events and impressions that he outlined
in his testimony. Hence, the question is whether such
overview testimony is permissible, and even if permissible
with respect to the FBI agent’s description of aspects of the
pre-indictment investigation of which he had personal
knowledge, whether the overview witness’s testimony here
caused substantial prejudice to appellants. Our conclusions
are not affected by whether appellants’ challenge is viewed as
a question of prosecutorial misconduct, as appellants contend,
or a claim of abuse of discretion by the district court in
admitting inadmissible evidence, United States v. Watson, 409
F.3d 458, 462 (D.C. Cir. 2005); United States v. Microsoft
Corp., 253 F.3d 34, 101 (D.C. Cir. 2001).

Until recently this court had not addressed the
appropriateness of a government overview witness at the
outset of its case, but had identified the “obvious dangers
posed by summarization of evidence” by a non-expert witness
called by the government during its case-in-chief in United
 35
States v. Lemire, 720 F.2d 1327, 1348 (D.C. Cir. 1983). The
analysis in Lemire is instructive. In that case, the government
called toward the end of its case-in-chief an FBI agent, who
was also a certified public accountant, “to summarize the
evidence about the complex cash flow through offshore
companies” in a prosecution for wire fraud, interstate
transportation of proceeds of fraud, and conspiracy. Id. at
1346. The FBI agent “used four summary charts to re-
examine th[e] evidence” already presented by the government
“in a more organized fashion,” and “prefaced each piece of
his testimony by identifying the document in evidence from
which he obtained the information.” Id. Upon defense
objection that the FBI agent was an improper witness under
Federal Rule of Evidence 602, 8 the district court conducted a
“full voir dire examination” before allowing the FBI agent to
testify, “subject to limiting instructions that his testimony was
explanatory and was not itself substantive evidence.” Id. at
1346-47.

On appeal, this court held that the district court did not
abuse its discretion in permitting the government to use a non-
expert summary witness because

neither Rule 602’s literal language nor its overriding
purpose was violated. [The FBI agent] did not testify
about any of the events underlying the trial: he only
summarized evidence about cash flows that several

8
At the time, Rule 602 of the Federal Rules of Evidence
provided, as relevant, that “‘[a] witness may not testify to a matter
unless evidence is introduced sufficient to support a finding that he
has personal knowledge of the matter.’” Lemire, 720 F.2d at 1347
n.30 (quoting FED. R. EVID. 602). Subsequent amendments were
technical in nature. See FED. R. EVID. 602 advisory committee’s
note.
 36
prior witnesses had already offered. As to that
evidence, he testified from his personal knowledge of
the transcripts and exhibits.

Id. at 1347. The court also noted that other courts had
“permitted such summaries under Rule 1006, allowing for
admission into evidence of summaries of documents too
voluminous to be conveniently examined in court” even if the
documents were already in evidence. Id. 9 That rule aside, the
court observed that “[t]here is an established tradition that
permits a summary of evidence to be put before the jury with
proper limiting instructions.” Id. (citations and quotation
marks omitted). Nonetheless, this court concluded that the
claim of unfair prejudice “raises more troubling concerns.”
Id. at 1347-48. Initially the court noted that the non-expert
summary evidence was cumulative and subject to challenge
under Rule 403 as more unfairly prejudicial than probative.
Id. at 1348. It also acknowledged that a non-expert summary
witness “can help the jury organize and evaluate evidence
which is factually complex and fragmentally revealed in the
testimony of a multitude of witnesses throughout the trial.”
Id. But the court pointed to three “obvious dangers posed by
summarization of evidence.” Id.

9
Rule 1006 of the Federal Rules of Evidence provides:

The contents of voluminous writings, recordings, or
photographs which cannot conveniently be examined in
court may be presented in the form of a chart, summary, or
calculation. The originals, or duplicates, shall be made
available for examination or copying, or both, by other
parties at reasonable time and place. The court may order
that they be produced in court.
 37
First, the jury might treat the summary evidence as
additional or corroborative evidence that unfairly strengthens
the government’s case. The court was satisfied that for a
summary witness there were adequate safeguards, including
cross-examination and limiting instructions, that could be
fashioned by the district court to prevent the jury from
treating the summary evidence as substantive proof. The
court emphasized that the defendant’s challenge to the
personal knowledge of the summary witness was not an issue
because the witness “had carefully reviewed the charts and
ensured that they reflected information contained in
documents already in evidence.” Id. at 1349 (emphasis
added); see also United States v. Kayode, 254 F.3d 204, 212
(D.C. Cir. 2001).

Second, summary witness testimony posed the risk
that otherwise inadmissible evidence might be introduced.
This concern was ameliorated, the court concluded, because
“the judge, prosecutor and defense counsel all heard the
evidence upon which [the witness] based his summary” and
hence “he was unlikely to stray from that evidentiary base
without quickly being stopped.” Lemire, 720 F.2d at 1349
n.33. Indeed, the court noted, “at one point the witness
inadvertently started to discuss material not in evidence, and
the prosecutor prevented him from doing so.” Id.

Third, a summary witness might permit the
government to have an extra closing argument. The court
noted, however, that the summary witness had made no
“controversial inferences or pronounced judgment” and thus
the district court had no need to interfere with the examination
on this ground. See id. at 1349-50.

Other circuits to address the use of overview witnesses
have reached uniformly negative conclusions in view of the
 38
serious dangers of prejudice to a fair trial. The Court of
Appeals for the First, Second, and Fifth Circuits have held
that the use of overview testimony by the government is a
“troubling development” for this very reason. United States
v. Casas, 356 F.3d 104, 120 (1st Cir. 2004); see also United
States v. Garcia, 413 F.3d 201 (2d Cir. 2005); United States v.
Griffin, 324 F.3d 330 (5th Cir. 2003). As the First Circuit
explained in describing the practice as “inherently
problematic”:

[S]uch testimony raises the very real specter that the
jury verdict could be influenced by statements of fact
or credibility assessments in the overview but not in
evidence. There is also the possibility that later
testimony might be different than what the overview
witness assumed; objections could be sustained or the
witness could change his or her story. Overview
testimony by government agents is especially
problematic because juries may place greater weight
on evidence perceived to have the imprimatur of the
government.

Casas, 356 F.3d at 119-20 (internal citation omitted).

Approaching the question from a different perspective, the
Second Circuit prohibited overview witnesses from giving lay
opinions about anticipated evidence without satisfying the
three requirements of Federal Rule of Evidence 701 — that
the witness’s testimony (1) be based on his personal
perception, (2) be helpful to the jury, and (3) not be based on
scientific, technical, or other specialized knowledge. See
Garcia, 413 F.3d at 211-17. As regards the second factor, the
Second Circuit dismissed the notion that an overview witness
aided the jury by framing how the government’s case-in-chief
will unfold, observing that “[t]he law already provides an
 39
adequate vehicle for the government to ‘help’ the jury gain an
overview of anticipated evidence as well as a preview of its
theory of each defendant’s culpability: the opening
statement.” Id. at 214. To the extent the summary witness
testified to the ultimate question of fact, the Second Circuit
noted that “courts should be wary of opinion testimony whose
‘sole function is to answer the same question that the trier of
fact is to consider in its deliberations,’” id. at 210 (quoting 4
WEINSTEIN’S FEDERAL EVIDENCE § 701.05 (2d ed. 2004), and
citing FED. R. EVID. 704 advisory committee’s notes to 1972
proposed rules), observing that it had previously held in two
other cases that it was “error to allow law enforcement
witnesses to express opinions as to [the] defendants’
culpability based on the totality of information gathered in the
course of their investigations,” id. at 211 (citing United States
v. Grinage, 390 F.3d 746, 749-51 (2d Cir. 2004); United
States v. Dukagjini, 326 F.3d 45, 54 (2d Cir. 2003)). The
court held that “the foundation requirements of Rule 701 do
not permit a law enforcement agent to testify to an opinion . . .
based [on investigative work] and formed if the agent’s
reasoning process depended, in whole or in part, on his
specialized training and experience.” Id. at 216.

This court recently observed that the First, Second, and
Fifth Circuits “have viewed agents’ hearsay-laden or hearsay-
based overview testimony at the onset of trial as a rather
blatant prosecutorial attempt to circumvent hearsay rules.”
United States v. Smith, 640 F.3d 358, 367 (D.C. Cir. 2011)
(citations omitted). In Smith, the defendant was charged with
drug and firearm offenses. An FBI agent testified at the start
of the trial that Smith and a co-conspirator “were working
together putting their money together and going to New York
to buy heroin.” Id. at 366. On appeal, Smith contended that
the overview testimony — the single sentence — was based
on inadmissible hearsay and thus violated Federal Rules of
 40
Evidence (“FRE”) 701 and 802. Assuming the same
prohibition against inadmissible hearsay testimony by an
overview witness applied as in the other circuits, the court
concluded that the FBI agent’s objected-to single-sentence
testimony was not based on otherwise inadmissible hearsay
because the underlying statements were either admissions of a
party-opponent or co-conspirator statements under FRE
801(d)(2), see id. at 367-68, and if error, was harmless, see id.
at 368. The court reached the same ultimate conclusion with
respect to the agent’s lay opinion testimony about the
meaning of slang used by Smith and his co-conspirators
during recorded conversations; although the lay opinion
testimony was inadmissible under FRE 701 because it was
based on specialized knowledge gained from working on
other drug investigations, id. at 365 (citing United States v.
Wilson, 605 F.3d. 985, 1026 (D.C. Cir. 2010)), the error was
harmless because the agent would have qualified as an expert
under FRE 702 and offered the same testimony, id. at 366.

The district court is ordinarily afforded broad discretion
to determine the manner in which evidence will be received.
See Huddleston v. United States, 485 U.S. 681, 690 (1988).
But in Lemire, this court concluded that “the pervasiveness of
the[] dangers [it had identified with summarization of
evidence] requires that we review the use of a summary
witness closely.” 720 F.2d at 1348. Indeed, it was only
“under appropriate circumstances with appropriate
instructions” that this court “in the past approved the use of
summary witnesses . . . in jury trials.” Microsoft Corp., 253
F.3d at 101. We accordingly review FBI Agent Sparks’s
overview testimony closely, aware that there was no voir dire
before his testimony and a limiting instruction was given to
the jury only after he completed his testimony, and then only
with regard to opinions, not otherwise described, that he may
have offered while testifying.
 41
All three dangers identified by this court in Lemire are
evident from the record in this case: FBI Agent Sparks
testified about evidence not yet presented while opining that
the cooperating witnesses would present truthful evidence
because they were insiders and were guilty themselves,
strengthening the government’s yet-to-be presented case and
offering inadmissible evidence while providing the
government with a second opening argument. For example,
upon being shown a map of the District of Columbia, FBI
Agent Sparks confirmed that the 31 circles located on the map
accurately reflected the locations of the 31 charged murders,
and that murders clustered in certain locations occurred
toward the beginning of the charged conspiracy. See May 15,
2002 AM Trial Tr. at 68-69. But no such evidence was before
the jury and FBI Agent Sparks did not purport to testify from
personal knowledge of each murder. At other points, FBI
Agent Sparks referred to witness testimony that was never
presented to the jury during the course of the trial. In one
exemplary circumstance, FBI Agent Sparks testified on
redirect examination that co-conspirator Erskine Hartwell had
described his role in the conspiracy as supplying drugs and
introducing Moore and Gray to Oscar Veal. See May 16,
2002 AM Trial Tr. at 56. When asked by the district court
whether this information was “based on what [Hartwell] told
[him],” FBI Agent Sparks agreed, prompting the district court
to state: “The jury is going to hear his testimony.” Id. at 57.
Yet when asked only moments later by the prosecutor “if
Erskine Hartwell will be a witness in this case or not,” FBI
Agent Sparks replied that he “d[idn’t] know for sure if
[Hartwell] will.” Id. at 59. From portions of the transcript
submitted by the parties to this court, there is no indication
that Hartwell testified at trial and hence “later testimony . . .
differe[d] [from] what the overview witness assumed.”
Casas, 356 F.3d at 119-20. The prosecutor thus
impermissibly invited the jury to “rely upon the alleged facts
 42
in the [overview] as if [those] facts had already been proved.”
Griffin, 324 F.3d at 349 (alterations in original) (citation and
internal quotation marks omitted). 10

Likewise, FBI Agent Sparks impermissibly commented
on the strength of the government’s yet-to-be introduced
evidence, vouched for the credibility of witnesses the
government intended to call at trial, and gave his personal
opinion as to guilt or innocence. Weighing trial evidence and
making “[d]eterminations of credibility are for the jury,”
United States v. Boyd, 54 F.3d 868, 871 (D.C. Cir. 1995)
(citation and quotation marks omitted); see also Jackson v.
Virginia, 443 U.S. 307, 319 (1979), as is “draw[ing] the
ultimate conclusion of guilt or innocence,” United States v.
Gaudin, 515 U.S. 506, 514 (1995); see also Garcia, 413 F.3d
at 210-11; United States v. Peterson, 483 F.2d 1222, 1238
(D.C. Cir. 1973). FBI Agent Sparks’s testimony crossed the
line in a number of instances. For example, he testified that it
was important, in his view, to use cooperating witnesses in
this case because it was “the only way” to gain “access to the
inside information.” May 15, 2002 AM Trial Tr. at 25.
Acknowledging that cooperating witnesses were “themselves
. . . criminals[,] unfortunately,” he further testified that the
cooperating co-conspirator witnesses nonetheless

know what’s going on, they have the information,
they’re the eyewitnesses, ear-witnesses, they hear
what these guys are talking about after they commit a
murder, they witness a murder, they know where the
stash locations are for drugs. . . . [T]hey are present

10
Other co-conspirator cooperating witnesses testified to
Hartwell’s role in the conspiracy. See, e.g., May 20, 2002 PM Trial
Tr. at 139; Aug. 26, 2002 PM Trial Tr. at 113-16.
 43
when drug deals are done. They have been with these
people day in and day out, and you need that kind of
testimony. That’s the only way to put these kind[s] of
cases together.

Id. He also testified that the goal in a debriefing session was
to “[g]et[] complete and truthful information” and that it was
important to “try and verify” the information “[j]ust to make
sure the person is truthful, that they are complete.” Id. at 15,
16. On redirect examination, FBI Agent Sparks reinforced
the notion that the cooperating witnesses were guilty of
committing crimes in their capacity as the defendants’ co-
conspirators:

Q: You were asked a lot of questions on cross-
examination about cooperating witnesses, and you
continually referred to them as criminals.

A: Yes.

Q: Any doubt in your mind about that?

A: None whatsoever.

May 16, 2002 AM Trial Tr. at 59.

All of this was opinion testimony that went far beyond
“constructing the sequence of events in the investigation . . .
to provide background information and to explain how and
why the agents even came to be involved with [a] particular
defendant.” United States v. Flores-de-Jesús, 569 F.3d 8, 19
(1st Cir. 2009) (citations and internal quotation marks
omitted). Instead, these statements suggested both directly
and indirectly to the jury that an experienced and highly
trained FBI agent had determined that the cooperating co-
 44
conspirators who would testify at trial were to be treated as
credible witnesses and that appellants were guilty of the
charged crimes. The clear implication was that the
government had selected only truthful co-conspirator
witnesses for the pre-indictment investigation, from whom the
jury would hear during the trial.

In sum, FBI Agent Sparks’s testimony was improper in
offering his non-expert opinions about the charged conspiracy
and appellants, vouching for the reliability of the investigation
and of the cooperating co-conspirator witnesses the
government planned to have testify at trial, and discussing
evidence that had yet to be introduced. Given the dearth of
taped conversations and videotaped evidence — none as to
Moore — and almost exclusive reliance on co-conspirator
cooperators’ testimony, the government understandably might
seek at the outset to enhance its case in the jury’s mind with
the imprimatur of an FBI agent. But the prosecutor went too
far in questioning, allowing FBI Agent Sparks to act as an
expert witness with respect to gang investigations and to refer
to evidence that would never be introduced at trial. The
district court, in turn, failed to sustain appropriate defense
objections to FBI Agent Sparks’s testimony that purported to
offer opinion testimony and to confirm government evidence
that had yet to be introduced.

Because a witness presenting an overview of the
government’s case-in-chief runs the serious risk of permitting
the government to impermissibly “paint a picture of guilt
before the evidence has been introduced,” Griffin, 324 F.3d at
349, and may never be introduced, see Flores-de-Jesús, 569
F.3d at 17, we join the circuits that have addressed the issue in
condemning the practice. Casas, 356 F.3d at 119 (1st Cir.);
Garcia, 413 F.3d at 214 (2d Cir.); Griffin, 324 F.3d at 349
(5th Cir.). See generally 6 WEINSTEIN’S FEDERAL EVIDENCE
 45
§§ 1006.04[3], 1006.08[4]. The use of overview witnesses
exacerbates the “obvious dangers” this court identified in
Lemire in the use of non-expert summarization evidence.
Overview testimony offers an opportunity to “poison the
jury’s mind against the defendant or to recite items of highly
questionable evidence.” Thomas, 114 F.3d at 248 (citation
and internal quotation marks omitted). Avoidance of those
dangers is largely beyond the ability of the district court,
much less the defense, to prevent. As the record here
demonstrates, a trained law enforcement officer is likely to go
as far as the questions allow, presenting a picture for the jury
of a solid prosecution case based on his opinion of the
strength and credibility of the witnesses the government plans
to call to testify at trial for reasons made persuasive in view of
the officer’s training and experience. See, e.g., May 15, 2002
AM Trial Tr. at 15-16 (prosecutor asking FBI Agent Sparks
why truthful information is important). After-the-fact limiting
instructions can, at best, mitigate prejudice, rather than
invariably eliminate its effects completely. See United States
v. Curley, 639 F.3d 50, 57 (2d Cir. 2011); Woodcock v.
Amaral, 511 F.2d 985, 994 (1st Cir. 1974). The view of the
government’s case has been implanted in the mind of the jury
by an agent of the Federal Bureau of Investigation who
worked on the case — he should know!

The government remains free to call as its first witness a
law enforcement officer who is familiar with the pre-
indictment investigation or was otherwise personally
involved, where permissible under the Rules of Evidence and
consistent with constitutional guarantees. See Old Chief v.
United States, 519 U.S. 172, 186-88 (1997); United States v.
Curtis, 481 F.3d 836, 838 (D.C. Cir. 2007). Such a witness
may, for example, be able to provide relevant background
information as to the investigation’s duration and scope or the
methods of surveillance, based on personal knowledge. See
 46
Flores-de-Jesús, 569 F.3d at 19. Put another way, a law
enforcement officer may “describe a complicated government
program in terms that do not address witness credibility,” but
he may not offer “tendentious testimony.” Griffin, 324 F.3d
at 349. Thus, FBI Agent Sparks could properly describe,
based on his personal knowledge, how the gang investigation
in this case was initiated, what law enforcement entities were
involved, and what investigative techniques were used. See,
e.g., May 13, 2002 PM Trial Tr. at 50-51. What he could not
do was present lay opinion testimony about investigative
techniques in general and opine on what generally works and
what does not, as illustrated by informants who pled guilty.
Neither could he anticipate evidence that the government
would hope to introduce at trial about the charged offenses or
express an opinion, directly or indirectly, about the strength of
that evidence or the credibility of any of the government’s
potential witnesses, including the cooperating co-conspirators.

Although the question is close, we conclude for the
following reasons that the prejudice resulting from the
admission of FBI Agent Sparks’s overview testimony, to the
extent it was inappropriate, was ameliorated: (1) Each
instance of FBI Agent Sparks’s improper testimony identified
by appellants was later confirmed by admissible evidence at
trial, see Appellee’s Br. at 105-07; supra note 10; see also
Griffin, 324 F.3d at 350. (2) Appellants’ defense was limited
to cross-examining testifying cooperating co-conspirators and
other government witnesses (such as Margarita Simmons, an
eyewitness to the murder of her son, Richard Simmons, see
infra Part XXIII.B), see Garcia-Morales, 382 F.3d at 18. (3)
The district court instructed at the conclusion of FBI Agent
Sparks’s testimony in the government’s case-in-chief that the
jury was to disregard any opinion testimony he offered, see
May 16, 2002 AM Trial Tr. at 90. (4) There was
overwhelming evidence of appellants’ guilt, see, e.g., infra
 47
Parts VII, XVIII, XXIII.B. And as to some of his
impermissible opinion testimony, FBI Agent Sparks might
have qualified as an expert, see Smith, 640 F.3d at 366.
Accordingly, the error did not “affect[] the outcome of the
district court proceeding[],” United States v. Sumlin, 271 F.3d
274, 281 (D.C. Cir. 2001) (citation and quotation marks
omitted), and hence appellants are not entitled to reversal of
their convictions because of improper overview testimony by
FBI Agent Sparks.

The inauspicious beginning of the government’s case-in-
chief is easily avoided in the future. No less than the court,
the Department of Justice recognizes the high standard set for
the prosecution by the Supreme Court in Berger, 295 U.S. at
88. Similarly, this court’s long-held view of the purpose of
the opening statement to the jury, namely to allow the
prosecutor the opportunity to provide the jury with an
objective overview of the evidence that the government
intends to introduce at trial, see Thomas, 114 F.3d at 247-48,
has long afforded the prosecutor the opportunity to do that for
which the prosecutor improperly used FBI Agent Sparks, see
Garcia, 413 F.3d at 214. This court now having made clear
the exacerbated “obvious dangers” of the overview witness
testifying about evidence yet to be admitted before the jury
affords all parties clear direction to avoid unnecessary risks
— for the prosecutor of an overturned conviction, for the
defense of an unfair trial, and for the district court of having
to retry a case.

C.

Much for the reasons stated in the government’s brief,
appellants’ litany of prosecutorial misconduct claims do not,
in their cumulative effect, warrant reversal. In this regard, we
have considered the probable aggregate effect of any
 48
impermissible prosecutorial conduct that may have occurred
on the jury’s ability to judge the evidence fairly. See United
States v. Celis, 608 F.3d 818, 847 (D.C. Cir. 2010) (citing
Egan v. United States, 287 F. 958, 971 (D.C. Cir. 1923)); see
also Thomas, 114 F.3d at 246. In addressing only two of
appellants’ claims of prosecutorial misconduct, we implicitly
have indicated that any other prosecutorial misconduct that
may have occurred was minor in itself and had no prejudicial
effect in view of limiting instructions. For example,
appellants maintain that the prosecutor impermissibly
vouched for the credibility of the government’s witnesses,
particularly co-conspirator cooperating witnesses, during
closing rebuttal argument. Although statements such as
“[t]hey’re telling the truth about their experiences,” Dec. 4,
2002 AM Trial Tr. at 86, impermissibly express the personal
opinion of the prosecutor, they were responses, based on
evidence introduced at trial, to appellants’ attacks on the
credibility of the government’s witnesses during closing
argument. See United States v. Young, 470 U.S. 1, 17-19,
(1985); United States v. Brown, 508 F.3d 1066, 1075-76
(D.C. Cir. 2007); United States v. Robinson, 59 F.3d 1318,
1323 (D.C. Cir. 1995). The prosecutor emphasized to the
jurors, however, that it was their province to weigh the
credibility of witnesses regardless of the arguments of
counsel. See Dec. 4, 2002 AM Trial Tr. at 69; cf. United
States v. Nnanyererugo, 39 F.3d 1205, 1209 (D.C. Cir. 1994).
Importantly, the district court instructed the jury that it alone
determined “the weight, the effect and the value of the
evidence and the credibility of the witnesses,” which evidence
did not include counsels’ opening and closing arguments. See
Dec. 9, 2002 AM Trial Tr. at 70, 72; see also Childress, 58
F.3d at 716; North, 910 F.2d at 897; United States v. Hawkins,
595 F.2d 751, 754-55 (D.C. Cir. 1978).
 49
Other claims of prosecutorial misconduct, including
appellants’ arguments relating to Brady v. Maryland, 373 U.S.
83 (1963), and the federal bribery statute, 18 U.S.C.
§ 201(c)(2), see infra Parts VI and XII, are without merit.
Similarly, appellants’ claim that the prosecutor, by eliciting
testimony that appellants had sought the advice of a certain
named attorney to defend against criminal charges not at issue
in this case, inappropriately implied that appellants were
guilty because they took steps to retain this counsel, thus
penalizing appellants for exercising their constitutional right
to counsel under the Sixth Amendment, is without merit. See
United States ex rel. Macon v. Yeager, 476 F.2d 613 (3d Cir.
1973). Although some testimony might impermissibly have
revealed privileged attorney-client conversations, an argument
appellants do not make, there was not a direct statement by
the prosecutor, as in Yeager, that appellants retained counsel
in the instant case because they were guilty. Cf. United States
v. Liddy, 509 F.2d 428, 442-45 (D.C. Cir. 1974) (en banc).
Rather, the evidence demonstrated that the attorney linked
several members of the conspiracy, including Moore and
Gray.

Having considered all of appellants’ claims of
prosecutorial misconduct, we conclude, in light of the district
court’s limiting instructions regarding statements of counsel
and regarding particular arguments or evidence, and the
overwhelming evidence of appellants’ guilt insofar as any
prosecutorial misconduct is concerned, that the cumulative
effect of any prosecutorial misconduct of which appellants
complain did not affect the outcome of the trial, and therefore,
was harmless. See Kotteakos v. United States, 328 U.S. 750,
776 (1946); see also Chapman v. California, 386 U.S. 18, 24
(1967).
 50
V.

At trial, the government introduced evidence about
Moore’s role in an uncharged drug-trafficking conspiracy run
by Rayful Edmond; Nunn’s role in an uncharged conspiracy
with Phyllis Webster; the apprehension of Rodman Lee, who
was not a charged co-conspirator, while he was with Gray,
and the contemporaneous discovery in Lee’s car of cocaine
and cocaine base, none of which the government claims
pertained to the charged conspiracy; several uncharged
murders and shootings; and Gray’s uncharged conduct as a
juvenile and others’ perceptions of Gray as a leader while he
was detained at the Oak Hill Juvenile Facility. Appellants
argue that this evidence was irrelevant and highly prejudicial,
admitted in violation of Rules 404(b) and 403 of the Federal
Rules of Evidence. The cumulative effect of these evidentiary
errors, appellants claim, deprived them of due process of law.

Rule 404(b) declares inadmissible evidence of “other
crimes, wrongs, or acts . . . to prove the character of a person
in order to show action in conformity therewith.” FED. R.
EVID. 404(b). But not all evidence of uncharged crimes,
wrongs, or acts is barred by this rule. When evidence of such
acts is “intrinsic” to the charged crime, it is not evidence of
“other” acts and is thus wholly unregulated by Rule 404(b).
See United States v. Alexander, 331 F.3d 116, 124-27 (D.C.
Cir. 2003); United States v. Bowie, 232 F.3d 923, 927-28
(D.C. Cir. 2000); United States v. Badru, 97 F.3d 1471, 1473-
75 (D.C. Cir. 1996). “Intrinsic” evidence encompasses
evidence that is either “of an act that is part of the charged
offense” or is of “acts performed contemporaneously with the
charged crime . . . if they facilitate the commission of the
charged crime.” Bowie, 232 F.3d at 929.
 51
Rule 403 provides that even evidence otherwise
admissible “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.
Rule 403 requires the district court to engage in “on-the-spot
balancing of probative value and prejudice” and to exclude
even factually relevant evidence when it fails the balancing
test. Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379,
384 (2008) (quoting 1 S. CHILDRESS & M. DAVIS, FEDERAL
STANDARDS OF REVIEW § 4.02, at 4-16 (3d ed. 1999))
(internal quotation marks omitted).

Appellants claim that the district court should have barred
the government from introducing the evidence of uncharged
conduct in question because it was not “intrinsic” to the
charged conduct and was therefore evidence of “other crimes,
wrongs, or acts” barred by Rule 404(b). Appellants also
contend that such evidence was erroneously admitted under
Rule 403 because its risk of prejudice to the defendants
substantially outweighed its probative value. Although
appellants are likely correct that the district erred by
permitting the government to introduce the evidence of
uncharged conduct at issue, particularly of Moore’s role in the
Rayful Edmond conspiracy, Nunn’s role in the Phyllis
Webster conspiracy, and Gray’s unlawful conduct as a
juvenile, we hold that any error was not reversible. 11 Even

11
Circuit Judge Rogers would find error under Rule 404(b) as
to the introduction of certain evidence, but nonetheless conclude the
errors were harmless beyond a reasonable doubt for the reasons
stated by the court. Exemplary is the testimony of Rayful Edmond,
a notorious drug kingpin in the District of Columbia serving
multiple life sentences in prison following his conviction. See
United States v. Edmond, 52 F.3d 1080, 1083-84, 1087 (D.C. Cir.
 52
assuming constitutional error, we will not reverse a conviction
if the error was “harmless beyond a reasonable doubt.”
Chapman v. California, 386 U.S. 18, 24 (1967). In light of
the amount and strength of the evidence the government
presented of the charged crimes, we find that any potential
error was harmless.

VI.

In 1996, Gray murdered Ricardo Bailey. Gray did so at
the request of Rodman Lee. Gray and Lee were arrested
while fleeing the scene of the murder, and a search of Lee’s
van revealed approximately five kilograms of cocaine hidden
in a secret compartment. Lee pled guilty to the ensuing drug
charges. Documents related to that plea show that Lee was a
major drug dealer, that Lee was senior to Gray in status as a

1995). Edmond testified for two days at trial concerning a separate,
violent conspiracy that predated the Moore and Gray conspiracy
charged in the superseding indictment. The fact that Moore was
involved in Edmond’s conspiracy was irrelevant to the charged
conspiracy, as the trial transcript belies the government’s assertion
that the Edmond conspiracy was the genesis of, and template for,
Moore’s drug-trafficking operation. Accordingly, Edmond’s
testimony about Moore’s prior criminal activity can only be viewed
as propensity evidence introduced to demonstrate Moore’s bad
character, see United States v. Douglas, 482 F.3d 591, 596 (D.C.
Cir. 2007), and to “complete [Moore’s] story” or “explain [his]
circumstances,” a practice this court rejected in United States v.
Bowie, 232 F.3d 923, 929 (D.C. Cir. 2000). The same is true of
evidence regarding Gray’s unlawful conduct as a juvenile, which
evidence the government purported was designed to demonstrate
the formation and scope of the charged conspiracy. The evidence
went beyond the fact that Gray met members of the charged
conspiracy while incarcerated in a facility for juvenile delinquents
and served no purpose other than to show his bad character. See
Douglas, 482 F.3d at 596.
 53
drug dealer, and that Lee was transporting most of the cocaine
in his van to a distributor who was not implicated in the
Moore and Gray conspiracy.

Appellants claim that the government’s failure to disclose
the information in Lee’s plea documents to the defense
violated the government’s obligations under Brady v.
Maryland, 373 U.S. 83 (1963).

“There are three components of a true Brady violation:
The evidence at issue must be favorable to the accused, either
because it is exculpatory, or because it is impeaching; that
evidence must have been suppressed by the State, either
willfully or inadvertently; and prejudice must have ensued.”
Strickler v. Greene, 527 U.S. 263, 281-82 (1999).
Appellants’ Brady claim fails because some of this
information was not favorable to appellants, and because the
government’s failure to disclose the remainder did not cause
prejudice.

The evidence showing that Lee was a higher-level drug
dealer than Gray would not have aided appellants. The
government itself contended that Lee was “at a higher level in
terms of drugs than Kevin Gray.” May 9, 2002 PM Trial Tr.
at 69. According to the government, it was Lee’s status as a
major cocaine supplier that motivated Gray to murder Bailey
on Lee’s behalf.

With respect to the evidence that the drugs in Lee’s van
were destined for someone outside the Moore and Gray
conspiracy, appellants’ Brady claim fails because they cannot
show prejudice. To show prejudice, appellants must
demonstrate “a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding
would have been different.” United States v. Pettiford, 627
 54
F.3d 1223, 1227 (D.C. Cir. 2010) (quoting Strickler, 527 U.S.
at 280). “The defendant bears the burden of showing a
reasonable probability of a different outcome.” United States
v. Johnson, 519 F.3d 478, 488 (D.C. Cir. 2008) (citing
Strickler, 527 U.S. at 291).

The evidence that the drugs in Lee’s van were not
destined for the Moore and Gray organization would have
been of minimal value to the defense. In its opening
statement, the government mentioned the drugs’ destination
only in passing, during a lengthy description of Gray
murdering Bailey. See May 9, 2002 PM Trial Tr. at 71. The
government made no other claims about those particular
drugs’ intended recipient, and the drugs’ destination was not
material to the government’s case. Rather, the drugs were
significant simply because their presence corroborated the
government’s claim that Lee was a major drug dealer for
whom Gray would be willing to kill others.

Moreover, the evidence that Lee had distributors outside
the Moore and Gray organization would not have materially
aided appellants. The defense had already shown that
members of the Moore and Gray conspiracy were also
involved in other drug rings. Corroboration of that fact would
have had little importance, because the government did not
deny that Lee, Gray, or others had illegal business not directly
related to Moore and Gray’s conspiracy. Criminals may of
course participate in more than one conspiracy. See, e.g.,
United States v. Marino, 277 F.3d 11, 25 (1st Cir. 2002); see
also United States v. Childress, 58 F.3d 693, 711 n.3 (D.C.
Cir. 1995) (“[T]he fact that certain conspirators engage in
independent drug transactions does not on its own negate the
existence of a single conspiracy.”). The fact that some
appellants did so does not contradict the overwhelming
evidence that Moore and Gray continued to collaborate on
 55
crimes long after the defense claimed they had parted ways.
See Pettiford, 627 F.3d at 1227 (“The court . . . has a
responsibility to evaluate the impact of the undisclosed
evidence not in isolation, but in light of the rest of the trial
record.” (citation and quotation marks omitted)).

The government did not violate Brady with respect to the
Lee evidence.

VII.

In a superseding indictment filed on November 17, 2000,
appellants and other indicted and unindicted co-conspirators
were charged with participating in a drug and RICO
conspiracy jointly led by Moore and Gray for over 12 years,
from approximately 1988 through March 2000. Under the
five-year statute of limitations applicable to these charges, see
18 U.S.C. § 3282, the government had to prove that Moore
and Gray’s joint leadership continued into the limitations
period, beginning November 17, 1995. 12 See United States v.
Seher, 562 F.3d 1344, 1364 (11th Cir. 2009). Applying well-
settled law that the court must accept the jury’s guilty verdict
if “any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt,” we affirm
the judgment of conviction on these charges. United States v.
Dykes, 406 F.3d 717, 721 (D.C. Cir. 2005) (citation and
quotation marks omitted).

Appellants contend that there was insufficient evidence
for the jury to find beyond a reasonable doubt that Moore and
12
This is the latest relevant date by which the government had
to prove the jointly-led conspiracy and continuing criminal
enterprise existed as to any appellant. For ease of analysis we
address the sufficiency of evidence as to this date for all appellants.
 56
Gray jointly led a unified conspiracy through November 17,
1995. They maintain that the evidence showed there were
multiple conspiracies — essentially that Moore and Gray split
up their drug operations in the 1993-1994 time frame and
thereafter operated separate conspiracies in different sectors
of the city that came into contact with each other only
casually. See generally United States v. Tarantino, 846 F.2d
1384, 1391-93 (D.C. Cir. 1988). Rather than maintain that
the government failed to prove the traditional elements for a
single conspiracy — common goal, interdependence, and, to a
lesser extent, overlap of participants, see id. at 1393 —
appellants identify the “crux of this issue” to be whether the
government presented sufficient evidence that “Moore and
Gray jointly led the charged conspiracies and [the continuing
criminal enterprise] within the statute of limitations periods,”
Reply Br. at 88, as charged.

As support for their position, appellants point to the
evidence describing Moore’s relocation from the Southeast to
Northeast quadrant of Washington, D.C., prior to November
17, 1995, leaving Gray to operate separately in Southeast. An
examination of this evidence shows that it falls short of
undermining the jury’s verdict that Moore and Gray’s joint
leadership of a single conspiracy continued after Moore’s
move. For instance, appellants emphasize Raymond
Sanders’s testimony that Moore “dropped out of Southeast” in
1993 or 1994 and was not seen in Southeast thereafter. See
May 20, 2002 PM Trial Tr. at 126-27. The jury, however,
could reasonably have credited other testimony that Moore
continued to have dealings in Southeast. See United States v.
Eppolito, 543 F.3d 25, 54 (2d Cir. 2008); see also Dykes, 406
F.3d at 721. Moreover, “shifting emphases in the location of
operations do[es] not necessarily require a finding of more
than one conspiracy.” United States v. Jones, 482 F.3d 60, 72
(2d Cir. 2006). As in United States v. Carson, we reject the
 57
argument that multiple conspiracies can be shown through
“attempts artificially to split one conspiracy into two based
simply on geographic lines.” 455 F.3d 336, 376 (D.C. Cir.
2006) (citation and internal quotation marks omitted).

The central issue is whether Moore’s and Gray’s actions
following Moore’s relocation to Northeast are inconsistent
with the jury’s finding that they continued to jointly lead the
charged conspiracy past November 17, 1995. On this point,
appellants maintain that Moore’s relationship with Gray
changed, as shown by evidence that, according to Sanders,
after the move Moore supplied Gray with cocaine only “a few
times.” May 20, 2002 PM Trial Tr. at 138. This
mischaracterizes Sanders’s testimony. On the previous page
of the transcript of his testimony Sanders admits that he had
no knowledge of who was regularly supplying cocaine to
Gray, and that Gray told him of “a few times” that Moore had
supplied cocaine. Id. at 137-38. This is not the same as
evidence that Moore supplied Gray’s operations in Southeast
only a few times. Further, Maurice Andrews testified that
Moore was Gray’s primary supplier of large quantities of
cocaine starting in 1995 and continuing at least into 1996.
See July 9, 2002 PM Trial Tr. at 54-56; see also Dykes, 406
F.3d at 721. There was also evidence that Gray may have
initially obtained cocaine from Ronald Alfred, and Frank
Howard confirmed a separate conspiracy between himself,
Alfred, and Rodman Lee, see July 17, 2002 PM Trial Tr. at
135. Such evidence is neither factually nor legally
inconsistent with a finding that Moore and Gray continued to
lead the charged conspiracy together. Here, much as in
United States v. Maynard, 615 F.3d 544, 554 (D.C. Cir.
2010), as regards “[t]he two purportedly separate conspiracies
. . . , each comprises the core conspiracy charged.” And “the
fact that certain conspirators engage in independent drug
transactions does not on its own negate the existence of a
 58
single conspiracy.” United States v. Childress, 58 F.3d 693,
711 n.3 (D.C. Cir. 1995).

The government offered ample evidence of a jointly led
conspiracy through November 17, 1995. This evidence
extends to both the conspiracy’s geographic scope and its
twin principal aims: to unlawfully distribute drugs and
commit murders. See Superseding Indict. at 4-5. The key
testimony as regards the drug operation in Northeast came
from Andrews, who accompanied Gray on a daily basis in
1996. July 9, 2002 PM Trial Tr. at 88. Andrews testified that
Gray “had a lot of guys over [in Northeast],” including
Moore’s cousins, uncles, and brother. Id. at 82-84. Each of
these family members participated in Gray’s Northeast drug
business, which involved Moore as well. See id. at 85, 86.
Indeed, Andrews testified that Moore was the person “in
particular responsible for overseeing the drug operation in that
area of 7th and H, Northeast.” Id. at 88. Moore and Gray’s
joint stewardship in Northeast after November 17, 1995, is
established most clearly by Andrews’s answers on the
government’s direct examination:

Q: How often, when you were hanging out with Kevin
Gray every day, Mr. Andrews, how often would you
go over to Northeast, Washington?

A: Every day.

Q: And why would you go over to Northeast every day?

A: [Gray] had money over there to pick up and
basically we’ll go to see [Moore] and then meet
[Moore] and them.
 59
Q: And did that occur right on up through at least 1995
and 1996 and into 1997?

A: Correct.

Id. at 88-89.

There was also sufficient evidence that Moore and Gray’s
joint leadership of the conspiracy continued after November
17, 1995, at a Southeast apartment complex located on Halley
Terrace. Gray oversaw the drug operation in which Andrews,
David Arnold, and Jermaine Vick participated. Although
Arnold testified that “Moore never had any dealings with us
down on Halley Terrace,” Aug. 22, 2002 PM Trial Tr. at 16,
Vick and Andrews testified that Moore supplied the Southeast
operation with drugs. See Sept. 10, 2002 AM Trial Tr. at 11
(Vick); Oct. 16, 2002 AM Trial Tr. at 56 (Andrews); see also
Dykes, 406 F.3d at 721. Moreover, Andrews’s testimony
makes clear that this relationship at Halley Terrace continued
for six to eight months until a temporary two-month fallout
between Moore and Gray around the time of the February
1998 NBA All-Star Game in New York. See Oct. 16, 2002
AM Trial Tr. at 56-60. Contrary to appellants’ contention that
Moore’s actions hardly reflected that of a “leader,”
Appellants’ Br. at 161, Vick recalled that Moore came to see
Gray “[w]hen he need[ed] to see [Gray] or, you know, he
need[ed] to deliver some important information or something
like that, or he needed somebody to carry out a task.” Sept.
10, 2002 AM Trial Tr. at 12 (emphasis added). Likewise,
Oscar Veal testified that he met Moore at Halley Terrace to
discuss murders of targets in Northeast through 1997. See
Aug. 27, 2002 AM Trial Tr. at 13. From this evidence, the
jury could reasonably infer that Moore’s absence from time to
time did not necessarily point toward a non-leadership role;
instead it might suggest that Moore was a principal acting in a
 60
supervisory role, while Gray coordinated the day-to-day
operations.

Finally, the jury could have reasonably relied on evidence
concerning Veal’s 1998 murder of Roy Cobb, a rival drug
dealer, well into the statutory limitations period. As Veal
recounts, Gray drove both of them from Southeast to meet
Moore at a location in Northeast. Once there, and in the
presence of other members of the conspiracy, Moore and
Gray discussed killing Cobb. Having already devised a plan
for the murder, Moore and Gray walked Veal to a specific
location where it was known that Cobb would stop at an
intersection, and instructed Veal on how to go about killing
Cobb. Although Moore and Gray continued to refine and
change the plan, Gray provided Veal with the gun used to
murder Cobb and afterward Moore compensated Veal with
cash and cocaine. See id. at 50-55, 90; see also Oct. 16, 2002
AM Trial Tr. at 108-11, 116-20.

In sum, the evidence on which appellants rely in
attempting to demonstrate that Moore and Gray ceased to
serve as joint leaders of the charged conspiracy in 1993 or
1994 does not support the weight they place upon it, could
reasonably have been rejected by the jury in light of other
witnesses’ contrary testimony, or is irrelevant to the existence
of joint leadership. Mindful that “‘the prosecution’s evidence
is to be viewed in the light most favorable to the government,
drawing no distinction between direct and circumstantial
evidence, and giving full play to the right of the jury to
determine credibility, weigh the evidence and draw justifiable
inferences of fact,’” Dykes, 406 F.3d at 721 (quoting United
States v. Foster, 783 F.2d 1087, 1088 (D.C. Cir. 1986)), we
hold that sufficient evidence supported the jury’s finding that
Moore and Gray jointly led the charged conspiracy within the
limitations period.
 61
VIII.

Appellants argue that all charges under the District of
Columbia Code were improperly joined to their federal
indictment under Rule 8(b) of the Federal Rules of Criminal
Procedure. Because joinder was improper, appellants
maintain, the district court lacked jurisdiction to hear those
charges under § 11-502(3) of the District of Columbia Code,
which provides that “the United States District Court for the
District of Columbia has jurisdiction of . . . [a]ny offense
under any law applicable exclusively to the District of
Columbia which offense is joined in the same information or
indictment with any Federal offense.”

We have interpreted the term “joined” in § 11-502(3) to
mean “properly joined under [Federal Rule of Criminal
Procedure] 8.” United States v. Jackson, 562 F.2d 789, 793
(D.C. Cir. 1977). Under Rule 8(b), joinder of the local
charges was proper here only if all the offenses charged were
part of the same “series of acts or transactions.” See id. at 794
(holding that “the propriety of joinder in cases where there are
multiple defendants must be tested by Rule 8(b) alone and
that Rule 8(a) has no application”); FED. R. CRIM. P. 8(b)
(“The indictment or information may charge 2 or more
defendants if they are alleged to have participated in the same
act or transaction, or in the same series of acts or transactions,
constituting an offense or offenses.”). Appellants’ contention
is that the superseding indictment and the evidence adduced at
trial demonstrate that the local charges were not properly
joined under Rule 8(b), and that the district court therefore
lacked jurisdiction. We disagree.

We have held that “a ‘series of acts or transactions’ is
‘two or more acts or transactions connected together or
constituting parts of a common scheme or plan.’” United
 62
States v. Brown, 823 F.2d 591, 598, (D.C. Cir. 1987) (quoting
United States v. Perry, 731 F.2d 985, 990 (D.C. Cir. 1984)).
Construing the facts of the superseding indictment as true, as
we must, United States v. Zicree, 605 F.2d 1381, 1387 (5th
Cir. 1979); see United States v. Carson, 455 F.3d 336, 372-73
(D.C. Cir. 2006); United States v. Spriggs, 102 F.3d 1245,
1255-56 (D.C. Cir. 1996), the local offenses charged were
committed as acts in furtherance of the charged conspiracy
and/or as predicate acts in the charged RICO conspiracy. All
of the charged offenses, local and federal, were thus part of a
common scheme or plan, which means that, for purposes of
Rule 8(b), they were part of the same series of acts or
transactions. See Carson, 455 F.3d at 373-74. Because we
conclude that the superseding indictment establishes that
joinder of the local offenses was proper, we hold the district
court had jurisdiction under § 11-502(3).

Even if the evidence adduced at trial had demonstrated
that all of the offenses were not part of the same series of acts
or transactions — a proposition we reject — this would not
strip jurisdiction from the district court. If the indictment
establishes proper joinder under Rule 8(b), trial evidence
cannot render joinder impermissible and is thus irrelevant to
our inquiry. Spriggs, 102 F.3d at 1255 (“Rule 8(b) can be
satisfied . . . by the indictment alone . . . .”); Perry, 731 F.2d
at 990 (explaining that “[q]uite obviously, the indictment
might satisfy th[e] requirement” for Rule 8(b) joinder).

IX.

Appellants contend that the introduction into evidence of
autopsy reports authored by the Office of the Chief Medical
Examiner of the District of Columbia and reports of drug
analyses performed by the U.S. Drug Enforcement
Administration (“DEA”) violates the Confrontation Clause of
 63
the Sixth Amendment to the Constitution because the reports’
authors were not available for cross-examination. Our review
of the district court’s legal conclusions regarding the
Confrontation Clause is de novo, United States v. Carson, 455
F.3d 336, 362 (D.C. Cir. 2006), and subject to constitutional
harmless error analysis pursuant to Chapman v. California,
386 U.S. 18, 23-24 (1967), see United States v. Smith, 640
F.3d 358, 364 (D.C. Cir. 2011); United States v. Wilson, 605
F.3d 985, 1014 (D.C. Cir. 2010).

The landscape of the Supreme Court’s jurisprudence on
the Confrontation Clause has changed since appellants’ trial
concluded in 2003. The governing rule at the time, set forth
in Ohio v. Roberts, 448 U.S. 56, 65-66 (1980), was that out-
of-court statements admitted against a criminal defendant
avoided the requirements of the Confrontation Clause if they
came within traditional hearsay exceptions or were otherwise
reliable. In 2004, however, the Supreme Court relied on the
Confrontation Clause’s historical underpinnings to hold that
“testimonial” out-of-court statements of a declarant not
testifying at trial were inadmissible under the Confrontation
Clause unless the declarant was unavailable and previously
subject to cross-examination. Crawford v. Washington, 541
U.S. 36, 53-54, 59 (2004). Statements qualifying as
“testimonial” included “ex parte in-court testimony or its
functional equivalent — that is, material such as affidavits,
custodial examinations, prior testimony that the defendant
was unable to cross-examine, or similar pretrial statements
that declarants would reasonably expect to be used
prosecutorially,” other “formalized” materials such as
“affidavits, depositions, prior testimony, or confessions,” and
“statements that were made under circumstances which would
lead an objective witness reasonably to believe that the
statement would be available for use at a later trial.” Id. at
51-52 (citations and quotation marks omitted). The Court
 64
applied Crawford in Melendez-Diaz v. Massachusetts, 129 S.
Ct. 2527, 2531-32 (2009), to hold that the state’s use of a
forensic laboratory report to prove that seized cocaine was of
a certain quality and quantity violated the Confrontation
Clause because no live witness competent to testify to the
truth of the statements made in the report was available for
cross-examination.

The Supreme Court’s most recent decision on the
Confrontation Clause is Bullcoming v. New Mexico, No. 09-
10876 (U.S. June 23, 2011). After failing field sobriety tests
and refusing a breath test, Bullcoming was arrested and
required to give a blood sample for the purpose of
determining his blood-alcohol concentration (“BAC”).
Bullcoming’s blood sample was sent to the New Mexico
Department of Health, Scientific Laboratory Division, where
a forensic analyst signed a “certificate of analyst,” part of a
standard form titled “Report of Blood Alcohol Analysis,”
recording Bullcoming’s BAC as 0.21 grams per hundred
milliliters. New Mexico charged Bullcoming with aggravated
driving under the influence of intoxicating liquor, which
requires proof of a BAC of 0.16 grams per hundred milliliters.
At trial the prosecutor introduced the report and certificate of
analyst into evidence as a business record. The forensic
analyst who authored the report did not testify at trial and was
not otherwise subject to cross-examination by Bullcoming.
Instead, the prosecutor called as a witness a scientist from the
same laboratory who had not signed the Report of Blood
Alcohol Analysis, and neither participated in nor observed the
test on Bullcoming’s blood sample. The testifying scientist
was, however, familiar with blood-alcohol analysis and the
laboratory’s testing protocols. Bullcoming, slip op. at 1-5.
Defense counsel objected on Confrontation Clause grounds,
and noted that “her opening, indeed, her entire defense ‘may
very well have been dramatically different’” had the
 65
prosecution disclosed prior to the day of the trial that it would
not be calling the certifying analyst as a witness. Id. at 5-6
(citation omitted).

The Supreme Court held that the Report of Blood Alcohol
Analysis was “testimonial” and therefore within the ambit of
the Confrontation Clause, a resulted dictated by Melendez-
Diaz. Id. at 14-16. It further clarified that the “surrogate
testimony” of the substitute witness “does not meet the
constitutional requirement [of cross-examination]. The
accused’s right is to be confronted with the analyst who made
the certification, unless that analyst is unavailable at trial, and
the accused had an opportunity, pretrial, to cross-examine that
particular [analyst].” Id. at 2. Three aspects of the Court’s
reasoning are noteworthy here: First, the Court framed the
question presented as whether “the Confrontation Clause
permit[s] the prosecution to introduce a forensic laboratory
report containing a testimonial certification . . . through the
in-court testimony of an analyst who did not sign the
certification or personally perform or observe the
performance of the test reported in the certification.” Id. at 7-
8; see also id. at 5-6 (Sotomayor, J., concurring in part).
Second, the Court rejected the argument that Bullcoming’s
“true accuser” was the gas chromatagraph machine that
generated the BAC figure and that the analyst’s role was that
of a “mere scrivener.” Id. at 10 (majority opinion). Third, the
Court explained that a surrogate witness knowledgeable as to
the equipment and protocol used in administering the test was
ill-equipped to “convey what [the certifying analyst] knew or
observed about the events his certification concerned, i.e., the
particular test and testing process he employed. Nor could
such surrogate testimony expose any lapses or lies on the
certifying analyst’s part.” Id. at 12.
 66
The facts of the instant case resemble in part those of
Bullcoming. The government called as witnesses Dr.
Jonathan Arden, then-Chief D.C. Medical Examiner, and
Jerry Walker, a DEA senior forensic chemist. Dr. Arden
testified as to the contents of approximately 30 autopsy
reports authored by other medical examiners in his office, but,
as in Bullcoming, insofar as the record provided by the parties
shows, he neither performed nor observed the autopsies and
his signature does not appear on any of the reports.13
Similarly, Walker’s testimony concerned 24 drug analyses, 20
of which were performed by other DEA forensic chemists on
drugs seized in the course of the investigation of the charged
conspiracy, the results of which were memorialized in DEA
reports. The autopsy and DEA reports were admitted into
evidence over appellants’ objection that “there is no way to . .
. confront under the Sixth Amendment” unless the
government calls the reports’ authors as witnesses. Oct. 23,
2002 PM Trial Tr. at 90.

This case differs from Bullcoming in three relevant
respects. First, because Walker testified that he authored four
DEA reports, see Oct. 23, 2002 PM Trial Tr. at 68, and he
was available for cross-examination at trial, these four DEA
reports present no Confrontation Clause problem under
Bullcoming. 14 The other 20 DEA reports, however, remain at
issue.

13
The autopsy report of Jaime Pereira, performed by a medical
examiner for the Commonwealth of Virginia, was admitted into
evidence pursuant to stipulation, and thus raises no Confrontation
Clause issue. See Bullcoming, slip op. at 1.
14
Of the four Walker-authored DEA reports, only the DEA
report dated May 15, 2000, relating to the March 20, 2000 seizure
 67
Second, Walker personally reviewed, but did not author,
one DEA report shortly after its creation, testifying that “[he]
look[ed] at what the results [were] . . . and ma[d]e sure that
[the analyst] used proper scientific-based knowledge to come
up with [the] results.” Id. at 80. Although the analysis in
Bullcoming indicates that the degree of participation by the
surrogate witness can alter the Confrontation Clause analysis,
see Bullcoming, slip op. at 12; id. at 5-6 (Sotomayor, J.,
concurring in part), Walker’s role appears to be much like that
of the surrogate witness in Bullcoming because he was unable
to “convey what [the authoring forensic chemist] knew or
observed about the events his certification concerned, i.e., the
particular test and testing process he employed,” or “expose
any lapses or lies on the [authoring forensic chemist’s] part,”
id. at 12 (majority opinion). Walker did not observe the test
being performed and did not sign the DEA report as the
approving official. Rather, Walker testified that, in
performing his review, he was “making an assumption that
the chemist used the sample and did the analysis. . . . I’m
making the assumption that they did do each of the tests that
they wrote down on their worksheet.” Oct. 23, 2002 PM Trial
Tr. at 81. In holding there was constitutional error in
Bullcoming, the Supreme Court relied on a similar statement
by the testifying surrogate witness: “you don’t know unless
you actually observe the analysis that someone else conducts,
whether they followed th[e] protocol in every instance.”
Bullcoming, slip op. at 12 n.8 (alteration in original) (citation
and quotation marks omitted).

Third, Dr. Arden testified as the Chief D.C. Medical
Examiner, and prior to trial he may well have had either a

of drugs from Nunn, appears to have been made a part of the multi-
volume record on appeal provided by the parties.
 68
“supervisor[y]” role with regard to the reports from his Office
or even “a personal, albeit limited, connection to the
[autopsies] at issue.” Id. at 5 (Sotomayor, J., concurring in
part). Whether such reports would be inadmissible under the
Confrontation Clause despite his testimony is a question left
open in Bullcoming, where the Court was confronted only
with a testifying lab technician who had “no involvement
whatsoever in the relevant test and report.” Id. at 6.

The government’s attempts to avoid the Confrontation
Clause, on the grounds that the autopsy reports rank as non-
testimonial and that the DEA reports contain “raw data,”
rather than “statements,” Appellee’s Br. at 185-87, 189, are
foreclosed by Bullcoming. 15

15
The government suggests that Dr. Arden’s and Walker’s
testimony was permissible as expert testimony pursuant to Federal
Rule of Evidence 703. Appellee’s Br. at 187, 189. The authority
on which the government relies is distinguishable because the
forensic reports in those cases were not introduced into evidence at
trial. See, e.g., United States v. Pablo, 625 F.3d 1285, 1294 (10th
Cir. 2010); United States v. Turner, 591 F.3d 928, 932-33 (7th Cir.
2010). It could well be a different case where an expert witness
discussed out-of-court testimonial statements that “were not
themselves admitted as evidence.” Bullcoming, slip op. at 6
(Sotomayor, J., concurring in part); see also People v. Williams,
939 N.E.2d 268 (Ill. 2010), cert. granted, No. 10-8505 (U.S. June
28, 2011). Any expert testimony by Dr. Arden and Walker does
not avoid the fact that the autopsy and DEA reports were admitted
into evidence at appellants’ trial. Moreover, we note but need not
decide whether Dr. Arden’s or Walker’s testimony qualifies as
proper expert opinion based on testimonial statements inadmissible
under the Confrontation Clause absent live in-court testimony by
the declarant. Other courts have held that an expert runs afoul the
Confrontation Clause when he “parrot[s] out-of-court testimonial
statements . . . directly to the jury in the guise of expert opinion.”
 69
First, “solemn declaration[s] or affirmation[s] made for
the purpose of establishing or proving some fact” are
testimonial statements. Melendez-Diaz, 129 S. Ct. at 2532
(citation and quotation marks omitted). Put another way, “[a]
document created solely for an ‘evidentiary purpose,’ . . .
made in aid of a police investigation, ranks as testimonial.”
Bullcoming, slip op. at 14 (quoting Melendez-Diaz, 129 S. Ct.
at 2532). The Supreme Court concluded the certifications in
the laboratory report analyzing Bullcoming’s BAC were
testimonial because “a law-enforcement officer provided
seized evidence to a state laboratory required by law to assist
in police investigations,” the certifying forensic analyst
“tested the evidence and prepared a certificate concerning the
result of his analysis,” the certificate was formalized in a
signed document and headed a “report,” and the document
referenced court rules relating to the admissibility of certified
blood-alcohol analyses. Id. at 15.

United States v. Johnson, 587 F.3d 625, 635 (4th Cir. 2009)
(citation and internal quotation marks omitted); see, e.g., Pablo,
625 F.3d at 1291-95. Here, the testimony by Dr. Arden and Walker
often relayed the contents of reports. For example, responding to
the prosecutor’s question about what “the report indicate[s]”
regarding soot or gunpowder marks on the arm of Anthony Dent,
Dr. Arden testified that “[the report] specifically says that . . . soot
or gunpowder tattooing . . . are mentioned as being absent.” June 4,
2002 AM Trial Tr. at 9. Likewise, examination relating to the DEA
reports typically consisted of Walker confirming a lab number on
an exhibit and stating the conclusion of the report regarding the
tested drugs. See, e.g., Oct. 23, 2002 PM Trial Tr. at 97, 98, 106,
111, 114, 118-20, 122-25.
 70
Analogous circumstances make the autopsy reports here
testimonial. 16 The Office of the Medical Examiner is required
by D.C. Code § 5-1405(b)(11) to investigate “[d]eaths for
which the Metropolitan Police Department [“MPD”], or other
law enforcement agency, or the United States Attorney’s
Office requests, or a court orders investigation.” The autopsy
reports do not indicate whether such requests were made in
the instant case but the record shows that MPD homicide
detectives and officers from the Mobile Crimes Unit were
present at several autopsies. Another autopsy report was
supplemented with diagrams containing the notation: “Mobile
crime diagram (not [Medical Examiner] — use for info
only).” Still another report included a “Supervisor’s Review
Record” from the MPD Criminal Investigations Division
commenting: “Should have indictment re John Raynor for this
murder.” Law enforcement officers thus not only observed
the autopsies, a fact that would have signaled to the medical
examiner that the autopsy might bear on a criminal
investigation, they participated in the creation of reports.
Furthermore, the autopsy reports were formalized in signed
documents titled “reports.” These factors, combined with the
fact that each autopsy found the manner of death to be a
homicide caused by gunshot wounds, are “circumstances
which would lead an objective witness reasonably to believe
that the statement would be available for use at a later trial.”

16
Certain duties imposed by the D.C. Code on the Office of the
Medical Examiner demonstrate, the government suggests, that
autopsy reports are business records not made for the purpose of
litigation. It is unnecessary to decide as a categorical matter
whether autopsy reports are testimonial, and, in any event, it is
doubtful that such an approach would comport with Supreme Court
precedent. See Melendez-Diaz, 129 S. Ct. at 2532; cf. Michigan v.
Bryant, 131 S. Ct. 1143, 1155-56 (2011).
 71
Melendez-Diaz, 129 S. Ct. at 2532 (citation and quotation
marks omitted).

Second, as to the suggestion that the DEA reports
contained only “raw data,” the Supreme Court rejected the
same characterization that “Bullcoming’s true accuser . . . was
the [gas chromatography] machine, while [the] testing
analyst[’s] . . . role was that of mere scrivener.” Bullcoming,
slip op. at 10 (citation and internal quotation marks omitted).
The Court emphasized that the analyst “reported more than a
machine-generated number” when he

certified that he received Bullcoming’s blood sample
intact with the seal unbroken, that he checked to make
sure that the forensic report number and the sample
number “correspond[ed],” and that he performed on
Bullcoming’s sample a particular test, adhering to a
precise protocol. He further represented, by leaving
the “[r]emarks” section of the report blank, that no
“circumstance or condition . . . affect[ed] the integrity
of the sample or . . . the validity of the analysis.”
These representations, relating to past events and
human actions not revealed in raw, machine-produced
data, are meet for cross-examination.

Id. (alterations and ellipses in original) (internal citations
omitted). Likewise here, the forensic chemists who authored
the DEA reports made several representations, for example,
that they were trained DEA chemists who followed certain
procedures regarding the marking of containers and the
inspection of seals, and that the chemical reagents and/or
analytical instruments used were free from contamination and
operating properly. The record in this court submitted by the
parties does not indicate appellants had an opportunity to
cross-examine the forensic chemists about their
 72
representations. And just as the Supreme Court concluded
that the performance of a blood-alcohol analysis using gas
chromatography was a “matter . . . not so simple or certain,”
id. at 4 n.1, and subject to “human error . . . at each step,” id.
at 4, the DEA drug analysis process requires forensic chemists
to weigh substances, make calculations, and choose the
correct “color test for a particular kind of exhibit,” Oct. 23,
2002 PM Trial Tr. at 130, a process also subject to human
error. Indeed, one type of test used by the DEA forensic
chemists involved gas chromatography. See id.

Non-structural constitutional error, such as violation of the
Confrontation Clause, requires vacation of a conviction only
where the error was not harmless beyond a reasonable doubt.
See Wilson, 605 F.3d at 1014 (citing Chapman, 386 U.S. at
24). As regards the autopsy reports, there was other evidence
at trial that the 31 murders occurred by gunshots fired by
members of the charged conspiracy. For example, there was
testimony by cooperating co-conspirators that Gray claimed
credit for shooting Anthony Dent and that Handy claimed
credit for murdering Demetrius Green, and there was
eyewitness testimony that Handy shot Richard Simmons.
Assuming error with respect to admission of the autopsy
reports, and thus not reaching the question left open in
Bullcoming, slip op. at 5-6 (Sotomayor, J., concurring in part),
we hold the error was harmless beyond a reasonable doubt.

With respect to those drug convictions dependent on a
specific weight and/or quality and quantity (Counts 126-138
of the superseding indictment), any improperly admitted DEA
reports, which were testimonial and within the ambit of the
requirements of the Confrontation Clause, may have caused
prejudicial error. The parties’ briefs could not address
Bullcoming, which was decided by the Supreme Court after
oral argument, and the parties did not address which specific
 73
counts of the superseding indictment may or may not be
sustained on other grounds. Accordingly, we remand to the
district court to determine whether the admission of the DEA
reports was error under Bullcoming and which counts
underlying the judgment of conviction must be vacated, see
Smith, 640 F.3d at 364, because the government cannot
establish that the error was harmless beyond a reasonable
doubt.

X.

Under the Jencks Act, prosecutors must disclose “any
statement” of a government witness “which relates to the
subject matter as to which the witness has testified.” 18
U.S.C. § 3500(b). A statement includes “a written statement
made by said witness and signed or otherwise adopted by
him,” as well as any “substantially verbatim recital” of the
witness’s oral statements “recorded contemporaneously with
the making of such oral statement.” Id. § 3500(e). In the
course of its lengthy investigation of appellants, the
government created reports of many witness interviews.
Appellants argue that the district court abused its discretion
when it declined to review, in camera, all of the reports of
interviews of government witnesses who later testified at trial,
in order to determine whether any of those records contained
Jencks Act statements. We disagree.

A district court has an “affirmative duty” to “engage in an
adequate inquiry into the nature of the documents before
ruling against Jencks Act production.” United States v.
Stanfield, 360 F.3d 1346, 1355 (D.C. Cir. 2004). However, a
defendant cannot compel a district court judge to sift through
every record in the government’s possession merely by
speculating that somewhere in those records there might be
Jencks Act statements. Rather, the defense must raise a
 74
“colorable claim” that a specific document or set of
documents contains Jencks statements. See, e.g., United
States v. Price, 542 F.3d 617, 621 (8th Cir. 2008); United
States v. Roseboro, 87 F.3d 642, 646 (4th Cir. 1996).

The interview reports in question here were written by law
enforcement officers, not by the witnesses themselves. Such
reports generally do not qualify as Jencks Act statements;
they are not usually a “substantially verbatim recital” of the
witness’s words or “adopted or approved by” the witness. Cf.
Price, 542 F.3d at 621; Roseboro, 87 F.3d at 646. Moreover,
even if the interviewer wrote down a few of the witness’s
exact words, there is no “substantially verbatim recital” if the
interviewer engaged in “substantial selection” in quoting the
witness. United States v. Donato, 99 F.3d 426, 433 (D.C. Cir.
1996) (quoting Palermo v. United States, 360 U.S. 343, 352-
53 (1959)). There is thus little reason to believe that the
interview reports in this case generally contained Jencks
statements, and no reason to insist that the district court
review every such report.

On two occasions, appellants cross-examined government
witnesses in an attempt to establish a colorable claim that
specific witnesses’ prior interviews had produced Jencks
statements. The closest appellants came was the following
exchange:

Defense: Do you recall whether or not while you were
speaking and the times when these people were
taking notes whether they asked you to slow
down so they could write something down that
you were saying?

Witness: No.
 75
Defense: Did you [sic] anyone ask you to repeat
yourself?

Witness: Probably so. I’m not sure.

A witness’s guess that an interviewer probably asked him to
repeat himself at some point during an interview does not
create anything more than speculation that the report of that
interview is a “substantially verbatim recital” of the interview.
Cf. Roseboro, 87 F.3d at 646. Under those circumstances, the
district court did not abuse its discretion in declining to
review the resulting report, much less every interview report
created during the investigation.

XI.

At trial, the government elicited testimony from two
former members of the Moore and Gray conspiracy that they
had converted to Islam and that their religious conversion
motivated them to testify for the prosecution. On cross-
examination, the defense attempted to demonstrate that the
conversions of those two witnesses were a sham. The defense
also questioned the legitimacy of many other government
witnesses’ religious beliefs, even though the government had
not raised the issue on direct examination of those witnesses.
The government in turn sought to defend the genuine nature
of its witnesses’ religious beliefs.

Appellants contend that the government’s elicitation of
testimony with respect to its witnesses’ faith violated Federal
Rule of Evidence 610. That rule states: “Evidence of the
beliefs or opinions of a witness on matters of religion is not
admissible for the purpose of showing that by reason of their
nature the witness’ credibility is impaired or enhanced.”
 76
The government responds that the testimony of the two
witnesses did not fall within Rule 610 because the evidence
was offered “for the purpose of showing interest or bias
because of” religious beliefs. FED. R. EVID. 610 advisory
committee’s notes. According to the government, the
witnesses’ religious conversion refuted an accusation of bias
— namely, the accusation that the witnesses were testifying
solely to receive favorable plea agreements. The government
thus argues that this testimony went to the witnesses’ motive,
not their credibility.

We need not decide which side has the better argument,
because even assuming arguendo that there was error in
allowing this testimony, the error was harmless. See FED. R.
CRIM. P. 52(a). The government elicited very little religious
testimony of its own accord. It made no mention of that
testimony in opening or closing; it never urged the jury to
credit its witnesses on account of their faith. Cf. United States
v. Spinner, 152 F.3d 950, 961-62 (D.C. Cir. 1998). Whatever
slight influence those two witnesses’ religious conversions
could have had on the jury is insignificant alongside the
overwhelming evidence of appellants’ guilt in this case. See
Kotteakos v. United States, 328 U.S. 750, 765, 776 (1946).

Moreover, the defense thoroughly probed the issue of
religious faith not only with the two witnesses who discussed
their religion on direct examination, but with many others as
well. Appellants admit that they did so both to impugn the
government witnesses’ credibility and to support their own
claim that the government witnesses used Friday prison
prayer services to coordinate false testimony against
appellants. On this record, the defense’s extensive cross-
examination on this topic cannot be used to transform a
government error (assuming error) that was a relatively minor
 77
part of the trial into a reversible error. See Lurk v. United
States, 296 F.2d 360, 361 (D.C. Cir. 1961).

XII.

Nunn maintains that the district court erred in denying his
motion for a new trial. See United States v. Gray, 292 F.
Supp. 2d 71, 91-94 (D.D.C. 2003). Although the motion
raised four issues, this part addresses only Nunn’s contention
that the testimony of Steve Graham was procured by the
government in violation of the federal bribery statute, 18
U.S.C. § 201(c)(2), which provides that “[w]hoever . . . gives,
offers, or promises anything of value to any person, for or
because of the testimony under oath or affirmation given or to
be given by such person as a witness upon a trial . . . shall be
fined . . . or imprisoned for not more than two years, or
both.” 17 Graham testified that Nunn was Gray’s drug supplier
and described two drug transactions between Gray and Nunn.
See Nov. 4, 2002 AM Trial Tr. at 14-26. Our review of the
district court’s denial of a new trial is for abuse of discretion.
United States v. Johnson, 519 F.3d 478, 487 (D.C. Cir. 2008).

Graham was indicted for participating in the charged drug
and RICO conspiracies, but his trial was severed from that of
the other co-conspirators. After refusing offers by the
government to enter into a plea agreement and cooperate with
the government, he was convicted by a jury of conspiracy to
distribute heroin or cocaine base and possession with intent to
distribute heroin. The district court sentenced Graham to two
concurrent 210-month terms of incarceration, followed by two

17
Nunn’s claims regarding Federal Rule of Evidence 404(b)
and severance pursuant to Federal Rule of Criminal Procedure 14
are addressed in Parts V and XXII, respectively.
 78
concurrent sentences of five years’ incarceration, and three
years of supervised release. See United States v. Graham,
317 F.3d 262, 265-66 (D.C. Cir. 2003). More than a year
after sentencing, this court in December 2001 appointed new
counsel to represent Graham on appeal. New counsel
explained the benefits of cooperating with the government
and the terms of such cooperation, something that Graham
claims his trial counsel failed to do. See Nov. 6, 2002 AM
Trial Tr. at 66-67, 70.

In March 2002, Graham contacted the prosecutor’s office
to express his desire to cooperate. On October 11, 2002, the
government and Graham entered into an agreement whereby
Graham would cooperate fully with the government and
testify truthfully at appellants’ trial. The agreement stipulated
that “the usefulness of the information supplied . . . could not
have reasonably been anticipated by [Graham] until more than
a year after his sentencing and that [Graham] promptly
provided information to the government after its utility was
reasonably apparent to him.” Gray, 292 F. Supp. 2d at 92.
This language tracks an amendment now found in Federal
Rule of Criminal Procedure 35(b)(2)(C), 18 effective
18
Federal Rule of Criminal Procedure 35(b)(2)(C) provides:

(2) Upon the government’s motion made more than one
year after sentencing, the court may reduce a sentence if
the defendant’s substantial assistance involved:

***

(C) information the usefulness of which could not
reasonably have been anticipated by the defendant until
more than one year after sentencing and which was
promptly provided to the government after its
usefulness was reasonably apparent to the defendant.
 79
December 2002, providing an additional basis for granting a
sentencing reduction based on a defendant’s substantial
assistance to the government. The agreement also
memorialized the government’s intention to file a Rule 35
motion. See Gray, 292 F. Supp. 2d at 92.

In Nunn’s view, Graham cooperated with the government
and testified against appellants because the government
agreed to file an untimely and improper Rule 35(b) motion on
his behalf. This agreement constituted, in Nunn’s words, a
“Faustian bargain,” Appellants’ Br. at 194, because it
represented that Graham realized the importance of the
information he possessed only upon appointment of new
appellate counsel more than one year after sentencing, when,
according to Nunn, Graham possessed this information at the
time of his arrest and knew of its potential value. Nunn thus
contends that the government, aware that Graham was
ineligible for a Rule 35(b)(2)(C) sentence reduction,
nonetheless unlawfully offered Graham leniency in exchange
for his cooperation.

United States v. Ramsey, 165 F.3d 980 (D.C. Cir. 1999), is
controlling. Ramsey was convicted of a drug crime based on
testimony by an informant named Fierro. Ramsey challenged
his conviction on the ground that the federal bribery statute
made it unlawful for the government to offer Fierro leniency
in exchange for his cooperation and testimony. This court
affirmed, holding that the bribery statute was not by its terms
applicable to the United States when read in conjunction with
the Dictionary Act, 1 U.S.C. § 1, and reasoned that a contrary

The advisory committee notes that “[w]hat constitutes ‘prompt’
notification will depend on the circumstances of the case.” FED. R.
CRIM. P. 35 advisory committee’s note to 2002 amendments.
 80
conclusion would deprive the federal government of its
longstanding ability to plea bargain, thereby creating absurd
results. See Ramsey, 165 F.3d at 986-91. As additional
justification, this court concluded that “even if federal
prosecutors were subject to [the federal bribery statute], that
fact would not justify excluding Fierro’s testimony” under the
exclusionary rule because Congress had prescribed only a
monetary fine and imprisonment as punishments. Id. at 991.

Counsel for Nunn conceded at oral argument that “the
cases are legion[] that the government is allowed to exchange
leniency for testimony.” Oral Arg. Tr. at 55. Even if the
federal bribery statute were applicable, a violation would not
change the course of Nunn’s trial because the exclusionary
rule would not operate to prevent the government from
eliciting Graham’s testimony. United States v. Singleton, 165
F.3d 1297 (10th Cir. 1999) (en banc), is not to the contrary.
Nunn relies on a concurring opinion for the proposition that
“[p]rosecutors may offer only those incentives that Congress
has approved, and may bargain and execute agreements only
within the narrow, specific procedures that Congress and the
courts have articulated.” Id. at 1308 (Lucero, J., concurring).
The majority likewise stated: “Our conclusion in no way
permits an agent of the government to step beyond the limits
of his or her office to make an offer to a witness other than
one traditionally exercised by the sovereign.” Id. at 1302
(majority opinion). A motion under Rule 35 is functionally
little different from the plea bargain at issue in Singleton and
the leniency afforded to the informant in Ramsey, save for the
timing. Cf. United States v. Ridge, 329 F.3d 535, 541 (6th
Cir. 2003); United States v. Vargas-Deleon, 124 F. App’x
854, 858-59 (5th Cir. 2005). Because the district court acted
within its discretion in crediting Graham’s stipulation that he
realized the usefulness of the information he possessed only
upon the explanation by new appellate counsel, the
 81
government’s Rule 35 motion meets the Singleton test, even
assuming arguendo its applicability here.

Accordingly, we hold that the district court did not abuse
its discretion in denying Nunn’s motion for a new trial motion
based on Graham’s testimony.

XIII.

Gray’s contention that the district court abused its
discretion in denying his request for a destruction of evidence
instruction is manifestly without merit. This court has no
authority to depart from Arizona v. Youngblood, 488 U.S. 51
(1988), requiring bad faith destruction, see Agostini v. Felton,
521 U.S. 203, 237 (1997), a showing Gray concedes he
cannot make, see Appellants’ Br. at 204.

XIV.

Appellants requested that the district court instruct the
jury on its theory that the government demonstrated, at most,
that they engaged in multiple independent conspiracies, not a
single joint conspiracy. Appellants submitted several
proposed instructions to the court on this theory; the district
court refused to give appellants’ proposed instructions, four of
which are now at issue on appeal. See Nov. 20, 2002 PM
Trial Tr. at 47-56.

We have held that a “theory-of-defense instruction is in
order if there is ‘sufficient evidence from which a reasonable
jury could find’ for the defendant on his theory.” United
States v. Hurt, 527 F.3d 1347, 1351 (D.C. Cir. 2008)
(quoting United States v. Glover, 153 F.3d 749, 754 (D.C.
Cir. 1998)). However, we have also made clear that a failure
to provide a requested defense instruction is not reversible
 82
error unless the instruction: “(1) is substantively correct; (2)
was not substantially covered in the charge actually delivered
to the jury; and (3) concerns an important point in the trial so
that the failure to give it seriously impaired the defendant’s
ability to effectively present a given defense.” United States
v. Taylor, 997 F.2d 1551, 1558 (D.C. Cir. 1993) (quoting
United States v. Grissom, 645 F.2d 461, 464 (5th Cir. 1981))
(internal quotation marks omitted).

No one disputes that appellants were entitled to an
instruction on their theory that the government had proven, at
most, multiple conspiracies rather than a single conspiracy.
Indeed the district court gave such an instruction:

The defendants contend that the government’s proof at
trial is at variance from the conspiracy charged in
Count One of the indictment; that is, that the evidence
presented at trial, if believed, would constitute
multiple conspiracies rather than a single overall
conspiracy. Whether a single conspiracy, multiple
conspiracies or no conspiracy at all existed is for you
to decide. . . . Proof of several separate conspiracies is
not proof of the single overall conspiracy charged in
the indictment. What you must determine is whether
the single conspiracy as charged in Count One existed
between two or more conspirators. If you find that no
such conspiracy existed, you must acquit the
defendants of this charge. If, however, you find the
government has proved beyond a reasonable doubt
that the defendants were involved at any point during
the period charged in the indictment in an integrated,
ongoing, common effort to distribute controlled
substances, then you may find them guilty of the
single conspiracy charged in Count One. In making
this determination, you should consider whether the
 83
conspirators share a common goal . . . . You may also
consider the extent to which members of the
conspiracy depended on one another to accomplish the
goal of narcotics distribution, the overlap of
participants in the various operations of the
conspiracy, and the quality, frequency, and duration of
each conspirator’s transactions.

Dec. 9, 2002 AM Trial Tr. at 108-10. Rather, the question
here is whether the court’s refusal to provide the specific
instructions requested by appellants constitutes reversible
error. We hold that it did not.

Appellants requested the following instructions:

Instruction 3. To determine whether the evidence supports
a single conspiracy as opposed to multiple conspiracies,
you must examine whether the defendants shared a
common goal, any interdependence among the
participants, and any overlap among the participants in the
allegedly separate conspiracies. The overlap requirement
is satisfied only if the main figures in the alleged
conspiracy are involved in all of the conspiracy’s alleged
scheme.

Instruction 4. In this case, the government alleges what is
known as a ‘hub and spoke’ conspiracy. The government
alleges that Mr. Gray and Mr. Moore were at the hub of
the conspiracy, and that the other defendants, in addition
to other conspirators, were the ‘spokes.’ However, in
order to prove such a conspiracy, it must be shown that
there is a direct conspiratorial interrelationship, also
known as ‘interdependence,’ among those on the ‘spokes’
of the conspiracy, in addition to their relationship to those
at the hub.
 84
Instruction 5. In order for the defendants to be convicted
of Count One, the evidence must demonstrate beyond a
reasonable doubt that each defendant knew or had reason
to know the scope of the distribution and retail
organization involved, and had reason to believe that their
own benefits derived from the operation [were] dependent
upon the success of the entire venture.

Instruction 6. A single conspiracy exists if there is one
overall agreement among various parties to perform
different functions in order to carry out objectives of [the]
conspiracy, while multiple conspiracies exist if each of the
conspirators’ agreements has its own end and constitutes
an end in itself.

We cannot conclude that the failure to provide any of the
proposed instructions “seriously impaired the defendant’s
ability to effectively present a given defense.” Taylor, 997
F.2d at 1558. In light of the district court’s comprehensive
instructions to the jury about the defense’s multiple-
conspiracies theory, which mentioned all of the factors
relevant to the jury’s determination, we find that appellants
were able to effectively present their defense.

XV.

Count 2 charged Moore with engaging in a continuing
criminal enterprise (“CCE”), in violation of 21 U.S.C. § 848.
To convict under § 848, the government must prove that the
defendant committed: “1) a felony violation of the federal
narcotics law; 2) as part of a continuing series of violations;
3) in concert with five or more persons; 4) for whom the
defendant is an organizer or supervisor; 5) from which he
derives substantial income or resources.” United States v.
Hoyle, 122 F.3d 48, 50 (D.C. Cir. 1997) (citation and
 85
quotation marks omitted). A “continuing series of
violations,” 21 U.S.C. § 848(c)(2), requires participation in
three or more predicate offenses, one of which may be a drug
conspiracy charged under 21 U.S.C. § 846. See United States
v. Harris, 959 F.2d 246, 252-54 (D.C. Cir. 1992), overruled
on other grounds, Bailey v. United States, 516 U.S. 137
(1995); see also Dec. 9, 2002 AM Trial Tr. at 120. The jury
convicted Moore upon finding seven proven predicate
offenses. Moore challenges his CCE conviction on the
ground that there was insufficient evidence to support the
jury’s finding of three or more predicate offenses. This court
“must accept the jury’s guilty verdict” where a rational trier of
fact could have reasonably found that Moore committed at
least three predicate offenses. United States v. Dykes, 406
F.3d 717, 721 (D.C. Cir. 2005).

The predicate offenses found by the jury included (1) the
drug conspiracy charged in Count 1, see 21 U.S.C. § 846; (2)
Gray’s possession with intent to distribute cocaine base on
October 5, 1996 (Count 1, Overt Act 78); and (3) Raynor’s
possession with intent to distribute heroin on February 8,
1997 (Count 1, Overt Act 90). The latter two were
attributable to Moore as a co-conspirator pursuant to
Pinkerton v. United States, 328 U.S. 640, 645-48 (1946): “As
long as a substantive offense was done in furtherance of the
conspiracy, and was reasonably foreseeable as a ‘necessary or
natural consequence of the unlawful agreement,’ then a
conspirator will be held vicariously liable for the offense
committed by his or her co-conspirators.” United States v.
Washington, 106 F.3d 983, 1012 (D.C. Cir. 1997) (quoting
Pinkerton, 328 U.S. at 647-68); see also United States v.
Baker, 432 F.3d 1189, 1235 (11th Cir. 2005); United States v.
Hoover, 246 F.3d 1054, 1057-58 (7th Cir. 2001).
 86
Moore’s challenge to these CCE predicate offenses rests
on his contention that the charged conspiracy terminated
before the statute of limitations period, when it split into
separate conspiracies operating in different quadrants of the
city more than five years prior to the filing of the superseding
indictment. It follows, Moore maintains, that the
government’s failure to prove the charged conspiracy negates
the jury’s finding that these CCE predicate offenses were
proven beyond a reasonable doubt. Moore suggests his
conviction for the Count 1 drug conspiracy would be vacated
and he would not be vicariously liable under Pinkerton for
Gray’s and Raynor’s acts because there was no charged
conspiracy to be furthered. See Washington, 106 F.3d at
1012. Because we conclude that Moore and Gray jointly led
the charged drug conspiracy within the limitations period, see
supra Part VII, and Moore identifies no other grounds for
disturbing the jury’s verdicts as to these CCE predicate
offenses, such as challenging the sufficiency of evidence that
Gray and Raynor committed these Count 1 overt acts, they are
properly considered CCE predicate offenses.

Accordingly, Moore’s challenge to the jury’s finding of
these Count 1 CCE predicate offenses fails. 19

XVI.

The government and Moore agree that Moore’s
convictions for the felony murder and the premeditated

19
Any violation of the Confrontation Clause in admitting the
DEA chemist report certifying the substance possessed by Raynor
to be heroin, see supra Part IX, is rendered harmless beyond a
reasonable doubt by Raynor’s guilty plea to Overt Act 90, see Oct.
7, 2002 Trial Tr. at 131-33; see also Chapman v. California, 386
U.S. 18 (1967).
 87
murder of Ronald Powell merge. We therefore vacate
Moore’s felony murder conviction for the murder of Powell.

XVII.

The jury convicted Smith of murdering Eric Moore.
During the initial police investigation of Moore’s murder,
another man, Antoine Ward, claimed to have killed Moore.
Smith argues that the district court improperly excluded
evidence of Ward’s confession. We conclude that the district
court did not abuse its discretion in excluding the Ward
evidence.

Eric Moore was found shot to death in his bedroom closet,
with a pillow on the floor nearby and the room ransacked. At
trial, a government witness testified: that he drove Smith and
an accomplice to Moore’s apartment with the intent of
robbing Moore; that Smith was carrying a handgun; that
Smith and the accomplice returned from Moore’s apartment
carrying bags of clothes; and that Smith told the witness he
had shot Moore in Moore’s closet after placing a pillow over
Moore’s head to muffle the sound. Another government
witness testified that Smith had confirmed those details in a
conversation with the government witness.

Before the above evidence came to light, the police had
found a fingerprint belonging to Ward in Eric Moore’s
apartment. Ward therefore became the first target of the
police investigation into this murder. When questioned, Ward
admitted that he knew Moore and initially claimed that he
participated in Moore’s robbery with three other men, one of
whom killed Moore. Ward later altered his story, naming a
different person as the murderer. Still later, Ward changed his
account entirely, claiming that he killed Moore himself during
an argument, and denying that any others were involved.
 88
Then, in his fourth and last statement, Ward recanted his
previous three accounts and denied any involvement in
Moore’s robbery or death. The government did not pursue
charges against Ward because it did not find sufficient
evidence to corroborate his involvement.

Ward’s counsel informed the government that Ward
would invoke his Fifth Amendment right against self-
incrimination if called to testify at Smith’s trial. Smith claims
that the district court should have told the government to
immunize Ward for purposes of testifying, and if the
government refused, dismissed the charges against Smith.

But the district court had no authority to immunize Ward,
or to compel the government to immunize Ward. The
decision to grant immunity from prosecution rests solely with
the Executive Branch. See 18 U.S.C. § 6003; United States v.
Doe, 465 U.S. 605, 616-17 (1984) (“Congress expressly left
this decision exclusively to the Justice Department.”).

Smith contends that the district court should have
dismissed the murder charge against Smith because the
government refused to immunize Ward, citing the D.C. Court
of Appeals’ decision in Carter v. United States, 684 A.2d 331,
339-46 (D.C. 1996) (en banc). Carter allows trial courts to
impose sanctions on the prosecution — including dismissal of
charges — if the prosecution creates a “distortion of the fact-
finding process” by unjustifiably refusing to grant immunity
to a defense witness. Id. at 342-43. Even assuming that
Carter applies here (given that Smith was charged with
murder under the D.C. Code), the district court did everything
that the Carter decision would require: The government had
interviewed Ward when it investigated him, and decided not
to grant him immunity because Ward’s accounts were self-
contradictory and likely to result in perjury. The district court
 89
accepted that as a valid reason for the prosecution not to
immunize Ward, and declined to impose sanctions on the
prosecution. The district court’s decision was well within the
bounds of Carter. Cf. Butler v. United States, 890 A.2d 181,
190 (D.C. 2006); Carter, 684 A.2d at 342-43.

Smith also argues that the district court should have
admitted into evidence the third of Ward’s four contradictory
statements regarding Eric Moore’s murder, the statement in
which Ward claimed to have killed Moore.

Ward’s confession is hearsay, but under Federal Rule of
Evidence 804(b)(3) such hearsay was admissible if: (1) the
declarant was unavailable, (2) the statement was against the
declarant’s interest, and (3) “corroborating circumstances
clearly indicate the trustworthiness of the statement.” 20 The
party offering the statement bears the burden of establishing
that the statement meets these requirements. See United
States v. Jackson, 540 F.3d 578, 588 (7th Cir. 2008); United
States v. MacDonald, 688 F.2d 224, 233 (4th Cir. 1982).

20
Under the version of Rule 804(b)(3) in effect during Smith’s
trial, the requirement for clear corroboration only applied to
statements, such as Ward’s, “tending to expose the declarant to
criminal liability and offered to exculpate the accused.” That
portion of the rule was amended in 2010. The new text applies to
any statement “offered in a criminal case as one that tends to
expose the declarant to criminal liability.” FED. R. EVID. 804(b)(3)
(2011). That change is not relevant here; both versions of the rule
apply to Ward’s statement. The 2010 amendment broadened the
rule so that it applies to statements against penal interest offered by
the prosecution as well as statements offered by the defense (such
as Ward’s confession here). See FED. R. EVID. 804(b)(3) advisory
committee’s note to 2010 amendments.
 90
There is no dispute that Ward was unavailable because he
had invoked his Fifth Amendment right against self-
incrimination. There is also no dispute that Ward’s
confession to killing Eric Moore is a statement against his
interest. The issue here is thus whether corroborating
circumstances “clearly indicate” the trustworthiness of
Ward’s statement. FED. R. EVID. 804(b)(3) (emphasis added).

Rule 804(b)(3)’s standard is demanding. The requirement
for clear indications of trustworthiness serves to prevent
someone whose reliability cannot be tested by cross-
examination (such as Ward) from exonerating a guilty party
by incriminating himself. The rule thus contemplates that
some out-of-court admissions of guilt will be excluded,
despite their relevance, because they possess insufficient
indications of trustworthiness. See United States v. Salvador,
820 F.2d 558, 561 (2d Cir. 1987); United States v. Silverstein,
732 F.2d 1338, 1346-47 (7th Cir. 1984); MacDonald, 688
F.2d at 233; see also United States v. Edelin, 996 F.2d 1238,
1241-42 (D.C. Cir. 1993).

Smith’s argument that Ward’s confession is “clearly”
corroborated for purposes of Rule 804(b)(3) rests largely on
general facts that do not directly confirm Ward’s claim to
have killed Eric Moore. Ward’s fingerprint proves that Ward
was in Moore’s apartment at some point. But in his
statement, Ward claimed that he was in an ongoing romantic
relationship with Moore and regularly stayed with him. The
fingerprint thus does not corroborate Ward’s claim that he
was present during the murder, much less that he committed
it. Smith’s other examples of corroborating evidence suffer
from similar problems: Evidence tending to demonstrate that
Ward knew certain things about Moore only corroborate
Ward’s claim that he knew Moore, not that he killed him.
 91
Against those general facts, Smith must deal with the fact
that Ward contradicted his statement multiple times. Ward
made four separate statements to police regarding Eric
Moore’s death. In three of those four statements, Ward
denied killing Moore. Moreover, the details of Ward’s story
vary significantly in each of the four accounts he gave, and he
denied killing Moore both before and after claiming that he
did. Other circuits have held that such contradictions can
alone render an otherwise admissible statement
untrustworthy. See United States v. Jackson, 540 F.3d 578,
589-90 (7th Cir. 2008); United States v. Lumpkin, 192 F.3d
280, 287 (2d Cir. 1999); see also United States v. Bumpass,
60 F.3d 1099, 1102 (4th Cir. 1995) (listing consistency of
declarant’s statements as a factor in assessing trustworthiness
under Rule 804(b)(3)).

Under the deferential abuse of discretion standard, we
cannot conclude that the district court erred in excluding
Ward’s statement. Rule 804(b)(3)’s requirement to show
clear indications of trustworthiness is a strict one. On three
separate occasions, Ward contradicted his claim to have killed
Eric Moore. Under those circumstances, the general
corroboration advanced by Smith was not so clear that we can
say that the district court abused its discretion in excluding
Ward’s hearsay confession.

XVIII.

Smith also challenges the sufficiency of the evidence
supporting his conviction for the murder of Anthony Dent.
We have little trouble concluding that the evidence sufficed
for a rational jury to find Smith’s guilt beyond a reasonable
doubt. See Jackson v. Virginia, 443 U.S. 307, 318 (1979).
 92
The government alleged that Smith assisted Moore and
Gray in murdering Dent because Dent was delinquent in a
debt to Moore. The government presented testimony from
two witnesses who observed the circumstances of Dent’s
murder. Both witnesses saw Smith, Gray, and Moore
searching Dent’s block prior to the murder. The first witness
testified that Moore, while in Smith’s company, asked the
witness where to find Dent. The first witness also noted that
Smith and Gray were wearing dark clothes when the witness
spoke with Moore. The second witness saw a single person in
dark clothes shoot Dent, but could not see the shooter’s face.
The second witness also saw Smith, Gray, and Moore in the
vicinity of the murder soon after the killing occurred.

The second witness also related a conversation that
occurred years after the murder, when that witness had
himself become a lieutenant to Gray. According to the
second witness, Gray stated that Moore had agreed to pay
$5,000 for Dent’s murder. Gray told the witness that while
Smith, Gray, and Moore searched for Dent, Smith argued with
Gray over who would actually shoot Dent and receive the
$5,000. Gray apparently won the argument, and, after
locating Dent with Smith and Moore’s help, killed Dent.

The eyewitness testimony of both witnesses placed Smith
at the scene of the murder, working with his fellow murderers
to locate their victim and acting as a lookout during the
murder. The second witness’s report of the later Gray
conversation provided evidence that Smith knew the purpose
of the search was to kill Dent and that Smith intended to bring
about that result. That evidence is sufficient to support
Smith’s conviction. Cf. United States v. Wilson, 160 F.3d
732, 737-39 (D.C. Cir. 1998).
 93
Smith’s challenges to this evidence are unavailing. He
suggests alternate explanations of the eyewitness testimony
and an alternate theory of the crime, but on sufficiency of the
evidence review we must view the evidence in the light most
favorable to the government. See United States v. Alexander,
331 F.3d 116, 127 (D.C. Cir. 2003). Smith also objects that
the testimony of accomplices is unreliable (both government
witnesses had been drug dealers in the Moore and Gray
organization), but in this Circuit accomplice testimony alone
can support a conviction. See United States v. Lee, 506 F.2d
111, 118 (D.C. Cir. 1974). And Smith objects to the
admission of the second witness’s later conversation with
Gray, but this court “must consider all admitted evidence —
whether admitted erroneously or not — in reviewing the
sufficiency of the evidence.” Alexander, 331 F.3d at 128
(citing Lockhart v. Nelson, 488 U.S. 33, 39-42 (1988)). 21 We
therefore reject Smith’s challenge to his conviction for the
murder of Anthony Dent.

21
Even if we construed Smith’s argument against admission of
the Gray conversation as a separate argument under the Federal
Rules of Evidence, that argument would fail. Under Federal Rule
of Evidence 801(d)(2)(E), admissions “by a coconspirator of a party
during the course and in furtherance of the conspiracy” are not
hearsay. When Gray gave his account of the murder to the
government witness, that witness was Gray’s assistant and thus a
member of the conspiracy. Contrary to Smith’s argument, Smith
also remained a member of the conspiracy at the time of this
conversation. See infra Part XX (Smith’s claim to have withdrawn
from the conspiracy fails). And this court has held that recounting
past violent acts to members of a violent gang is a statement in
furtherance of the conspiracy because it provides useful information
on the conspiracy’s activities and motivates conspiracy members’
continued participation. See United States v. Carson, 455 F.3d 336,
367 (D.C. Cir. 2006).
 94
XIX.

Somewhat as a corollary to his sufficiency of evidence
challenge as regards his conviction for the murder of Anthony
Dent, Smith contends that his trial counsel failed to provide
constitutionally adequate assistance in electing not to call Leo
Benbow as a witness. Benbow, according to Smith, witnessed
Dent’s murder and would have identified Clayton Thomas as
the shooter.

To succeed on a Sixth Amendment claim of ineffective
assistance of counsel, a defendant must show both “that
counsel’s performance was deficient” and “that the deficient
performance prejudiced the defense.” Strickland v.
Washington, 466 U.S. 668, 687 (1984). To establish
deficiency “the defendant must show that counsel’s
representation fell below an objective standard of
reasonableness,” id. at 688; to establish prejudice “[t]he
defendant must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different,’” id. at 694. See also
Porter v. McCollum, 130 S. Ct. 447, 452 (2009). This court
typically remands an ineffective assistance of counsel claim
raised for the first time on direct appeal to the district court
for an evidentiary hearing “unless the trial record alone
conclusively shows that the defendant either is or is not
entitled to relief,” United States v. Shabban, 612 F.3d 693,
698 (D.C. Cir. 2010) (citation and quotation marks omitted),
and provided that the defendant has raised a “colorable claim”
by making “factual allegations that, if true, would establish a
violation of his sixth amendment right to counsel,” United
States v. Burroughs, 613 F.3d 233, 238 (D.C. Cir. 2010)
(citation and quotation marks omitted).
 95
There was sufficient evidence upon which the jury
reasonably could find that Smith aided and abetted Gray in
murdering Dent. See supra Part XVIII. Smith defended
against this charge at trial by offering evidence, pursuant to
Winfield v. United States, 676 A.2d 1 (D.C. 1996) (en banc);
see also United States v. Wilson, 160 F.3d 732, 742-43 (D.C.
Cir. 1998), that Thomas, a third party with whom Smith had
no affiliation, committed the crime. An understanding of how
that defense unfolded at trial and the context in which Smith’s
counsel chose not to call Benbow to testify requires some
background.

During opening statements, Smith’s counsel forecasted to
the jury that, as to the murder of Dent, “you will find that
there is an eyewitness that identified other people and not
Calvin Smith as being present and involved.” May 13, 2002
AM Trial Tr. at 92. As groundwork for this defense, Smith
introduced expert testimony that bullets fired from a gun used
in the attempted murder of Michael Taylor were “tantalizingly
close to being a perfect match” to those collected following
Dent’s murder a day later. Nov. 12, 2002 AM Trial Tr. at 33.
The expert opined that it was “likely” the bullets were fired
from the same pistol. Id. at 34. Building on this connection
between the Taylor and Dent shootings, which occurred at the
same location, see Nov. 14, 2002 PM Trial Tr. at 124; see
also Counts 4-5, Superseding Indict. at 104-05, Smith
intended to establish, through identifications made by Taylor
and Benbow, that Thomas and two others, neither of them
Smith, were involved in both crimes. See Nov. 14, 2002 PM
Trial Tr. at 76.

Before any witnesses were called as to the identifications,
the prosecutor advised the district court that the government’s
response to Smith’s third-party defense might cause a
potential issue to arise under Bruton v. United States, 391
 96
U.S. 123, 127-28 (1968), which held that a defendant’s Sixth
Amendment right to cross-examination is violated when, in a
joint trial, a non-testifying defendant’s out-of-court admission
is introduced against a codefendant. The prosecutor
explained that one of the assailants identified by both Taylor
and Benbow was a tall man named Rodney, who the
government believed to be charged conspiracy co-principal
Rodney Moore, and therefore the prosecutor would seek the
identification of all three assailants on cross-examination of
Benbow and other fact witnesses. See Nov. 14, 2002 PM
Trial Tr. at 76. Counsel for Moore appeared to agree
regarding the Bruton problem, stating that “given [the
government’s] proffer . . . [t]his could really come back and
bite us,” but demurred when pressed by the district court to
articulate the concern. Id. at 81-82.

The evidence concerning Taylor’s identification of
Thomas as one of his assailants consisted of testimony by two
D.C. police officers who investigated the incident. Officer
Will stated that the attempted murder occurred on “October 8
of 1990, [in the] 3100 block of 15th Place, Southeast, late
evening,” that he directed Detective Fluck to show
photographs to Taylor for purposes of identifying the
perpetrator, and that ultimately an arrest warrant was issued
for Thomas. Nov. 14, 2002 PM Trial Tr. at 84. Detective
Fluck, in turn, recounted visiting Taylor in the hospital to do a
“photo spread,” prompting the prosecutor to object to the
admission of an out-of-court identification by Taylor. See id.
at 86. Following a colloquy at the bench, the district court
sustained the objection, thereby limiting the direct
examination of Detective Fluck to the fact that an
identification was made by Taylor, without revealing the
name of the person (Thomas) identified. See id. at 86-89, 91.
Detective Fluck testified on direct examination in accordance
with the ruling.
 97
Before cross-examination of Detective Fluck, however,
the prosecutor noted that the direct examination had resulted
in an “incomplete accounting of what Mr. Taylor said” to
Detective Fluck insofar as “Mr. Taylor actually talked about
three people being involved in the shooting.” Id. at 97.
Consequently, the prosecutor indicated his intent “to flesh out
all of the identification,” including the fact that a man named
Rodney was involved. Id. at 97-98. The district court, likely
mindful the prosecutor had raised the specter of a Bruton
problem, inquired whether the prosecutor could “sanitize” the
cross-examination and avoid a Bruton problem by “[a]sk[ing]
the officer if it is true . . . that Mr. Taylor also identified other
individuals.” Id. at 98. In response, however, the prosecutor
stated that he “d[idn’t] think it is a Brut[]on problem, because
it isn’t a defendant testifying against another defendant. I
think that’s the Brut[]on line [of authority], essentially limited
to a defendant testifying against another.” Id. The district
court directed the prosecutor to sanitize the cross-
examination. Id. at 99. The parties and the district court then
engaged in the following exchange, which is central to
Smith’s allegation of constitutionally inadequate counsel:

Moore’s Counsel: I do just want to note a concern that
even that sanitized testimony, when
viewed together within the testimony of
what I’m told to anticipate from — the
next witness may provide — could
present a very serious continuing
Brut[]on type problem for us.

The Court: What is next?

Smith’s Counsel: Your Honor, I’ll be frank with the
Court. It is not my intention to call
Benbow to go into the Dent shooting.
 98
If I did, I think we would have a
mistrial.

***

I will tell the Court that the government
is free to call Benbow. They know
where he is. He’s out there in the
witness program. If they choose. They
want to open up this can of worms,
they’re free to do that.

But I won’t be introducing it, based on
the limited ability of myself and my
limited ability to go into this through
these two officers. Severely
hamstrung. First of all, I’m missing
photographs that I can’t go into with
Benbow because they’re not in the
jacket. They’re missing the
photographs from [Dent] and Michael
Taylor.

The Court: Look, I can’t solve all the problems of
the whole case here. Let’s finish this
witness. Do what I suggested.

Id. at 99-100 (emphasis added). Proceeding in this sanitized
manner, the prosecutor elicited from Detective Fluck that,
according to Taylor, “Thomas was one of three men who shot
[Taylor]” and that “there were three men, all of whom were
firing at [Taylor] at the same time.” Id. at 101-02.

Based on the foregoing, we conclude that Smith has made
a “colorable claim” that his counsel’s decision not to call
 99
Benbow to testify was constitutionally deficient, and that he
was prejudiced by his counsel’s conduct. See Burroughs, 613
F.3d at 238. First, Smith has made a plausible claim that his
counsel’s decision not to call Benbow to testify fell below an
objective standard of reasonableness. Why Smith’s counsel
believed that calling Benbow would precipitate a mistrial, see
Nov. 14, 2002 PM Trial Tr. at 99, and how the district court’s
evidentiary rulings or other circumstances “[s]everely
hamstrung” the presentation of the third-party defense, id. at
100, is difficult to discern from the current record. Bruton
applies only where, unlike here, there is an “admission of
incriminating out-of-court statements made by a nontestifying
codefendant,” United States v. Wilson, 605 F.3d 985, 1017
(D.C. Cir. 2010) (emphasis added), which Benbow was not.
Moreover, although Smith’s counsel was unable to elicit
Taylor’s identification of Thomas on direct examination of
Detective Fluck, the jury could infer this fact from the
issuance of an arrest warrant for Thomas and, in any event,
Thomas was ultimately identified during the prosecutor’s
cross-examination of Detective Fluck.

The parties’ briefs discuss at length whether the
government could have proved that the “Rodney” who
purportedly participated in the Taylor shooting was Rodney
Moore, and, if so, whether this factored into defense counsel’s
decision not to call Benbow. The government suggests that
“[t]he possibility that Benbow would implicate Moore in one
or both shootings would have prejudiced Moore, but more
importantly, it would also have had a direct prejudicial impact
on Smith’s own defense,” Appellee’s Br. at 276, insofar as the
government had introduced evidence in its case-in-chief that
Moore, Gray, and Smith were searching for Dent shortly
before the shooting, see May 21, 2002 AM Trial Tr. at 137-
38. The current record, however, is inconclusive as to
whether the allegations “reflect the trial counsel’s informed
 100
tactical choice or a decision undertaken out of ignorance of
the relevant law.” United States v. Reeves, 586 F.3d 20, 26
(D.C. Cir. 2009) (citation and quotation marks omitted).
Similarly, Smith’s assertion that his counsel erroneously
believed there was a Bruton problem fails to find conclusive
support in the current record. See id.

Second, the extent to which an error, if any, prejudiced
Smith’s third-party defense is also unclear from the current
record. The lack of clarity stems in part from an inability to
pin down the precise nature of Benbow’s testimony. In his
brief, Smith proffers that Benbow would have testified: “[I]
saw three men — Smith not being one of them — kill Dent.”
Appellants’ Br. at 275. According to Smith, Benbow’s
eyewitness account of the Dent murder would have changed
the course of the trial in light of the weak circumstantial
evidence offered against Smith, thereby implicating Thomas
and fully exonerating Smith of participating in the crime. The
government disagrees, maintaining that the absence of
Benbow’s testimony was insufficient to satisfy the second
Strickland prong because the evidence would not have been
exculpatory of Smith. Recall that Smith, Gray, and Moore
were seen together near the scene of the Dent murder shortly
before and after it occurred and that the government
introduced evidence to establish that Smith served as a
lookout from an alley for Gray, the shooter. See supra Part
XVIII. From this, the government concludes that Benbow’s
account of the Dent murder does not rule out Smith’s
participation because Benbow would not have seen Smith
hiding in the alley. This may or may not be so, depending on
a number of variables.

Benbow’s proffered testimony (“[I] saw three men —
Smith not being one of them — kill Dent”) is subject to
varying interpretations. On the one hand, it may be that
 101
Benbow saw three men simultaneously shoot at Dent, none of
them Smith, and that Benbow was in a position to confirm
that Smith was not standing in the alley. Smith was not
completely hidden from view since Sanders was able to
identify him. See May 21, 2002 AM Trial Tr. at 140, 142.
On the other hand, in stating that three men “kill[ed] Dent,”
Benbow might have meant that three men participated in the
murder, one of whom was the shooter and two of whom
served as lookouts. Such a statement could be exculpatory of
Smith depending on where the lookouts were standing and,
again, if Benbow were in a position to see into the alley. The
trial record does not make clear which interpretation is
correct. Compare Nov. 14, 2002 PM Trial Tr. at 76
(“Benbow . . . identified three people being involved in both
shootings . . . .” (emphasis added)), with id. at 124 (“Clayton
Thomas is identified both in [Dent] and in the Michael Taylor
[shootings] as being the one that shot.” (emphasis added)),
with id. at 125 (“Thomas is identified as one of the three
shooters.” (emphasis added)).

The current record also does not allow a conclusive
determination that Benbow’s testimony was immaterial or
cumulative such that it defeats a colorable prejudice claim.
See United States v. Toms, 396 F.3d 427, 434-35 (D.C. Cir.
2005). The jury heard fact testimony that Taylor identified
Thomas as a person who shot at him, see Nov. 14, 2002 PM
Trial Tr. at 101-02, and expert opinion testimony that the
bullets fired at Taylor and Dent were “tantalizingly close to
being a perfect match,” Nov. 12, 2002 AM Trial Tr. at 33.
Benbow would have provided corroboration for Smith’s third-
party defense insofar as he witnessed Thomas shoot Dent,
thereby strengthening the connection between Thomas and
the two shootings. This evidence would not have been
cumulative. It is conceivable that Smith could have pursued
his defense based solely on Taylor’s identification of Thomas
 102
in the first shooting and the similarity in the bullet markings
between the shootings, but there was no other evidence in the
record linking Thomas directly to Dent’s murder. See
Sussman v. Jenkins, 636 F.3d 329, 358-59 (7th Cir. 2011).
Notably, Benbow would have provided the only eyewitness
identification of the shooter at the scene. See Harrison v.
Quarterman, 496 F.3d 419, 428 (5th Cir. 2007). But cf.
United States v. McNeil, 911 F.2d 768, 774 (D.C. Cir. 1990).
Without Benbow’s eyewitness account of the Dent murder
and identification of Thomas, the jury was left to infer from
Smith’s evidence that Thomas shot Dent and to weigh this
inference against the testimony of government witnesses that
Gray, with Smith’s assistance, committed the murder and later
claimed credit for it.

The government’s theory at trial was that Gray murdered
Dent while Smith served as a lookout. Smith’s defense was
that Thomas and his cohort murdered Dent. No evidence
linked the two groups; there was only the government’s
conjecture that one of Thomas’s accomplices, identified as
“Rodney,” was in fact Rodney Moore. There is a “colorable”
argument that Benbow’s testimony would not have
precipitated a mistrial or hampered Smith’s defense, yet
would have significantly altered the balance of evidence,
tipping the scales in Smith’s favor. See Porter, 130 S. Ct. at
455-56; Strickland, 466 U.S. at 693-94. Accordingly, because
the current record does not conclusively resolve Smith’s
claim, we remand Smith’s “colorable claim” of ineffective
assistance of counsel under the Sixth Amendment to the
district court so that it may hold an evidentiary hearing and
address this claim in the first instance.
 103
XX.

In its instructions to the jury prior to deliberation, the
district court explained: “If you find that the evidence at trial
did not prove the existence of the narcotics conspiracy at a
point in time continuing in existence within five years before
. . . May 5th, 2000 for defendant Calvin Smith . . . you must
find the defendant[] not guilty of Count One.” Dec. 9, 2002
AM Trial Tr. at 104-05. After deliberating for nearly 12 days,
the jury asked the court: “If we find that the Narcotics or
RICO conspiracies continued after the relevant date under the
statute of limitations, but that a particular defendant left the
conspiracy before the relevant date under the statute of
limitations, must we find that defendant not guilty?” Over
appellants’ objections, the district court told the jury that
“[o]nce the Government has proven that a defendant was a
member of a conspiracy, the burden is on the defendant to
prove withdrawal from a conspiracy by a preponderance of
the evidence.”

Smith contends that the district court erred in instructing
the jury that he rather than the government bore the burden of
persuasion to show that he had withdrawn from the
conspiracy. He believes that, because he met his burden of
production to show that he withdrew from the charged
conspiracy prior to the relevant statute of limitations period,
due process required the government to prove beyond a
reasonable doubt that he was a member of the conspiracy
during the relevant period.

In a criminal trial due process requires the government to
prove beyond a reasonable doubt all elements of the offense.
In re Winship, 397 U.S. 358 (1970); see also Dixon v. United
States, 548 U.S. 1 (2006); Patterson v. New York, 432 U.S.
197 (1977); Mullaney v. Wilbur, 421 U.S. 684 (1975). As a
 104
consequence, when a defendant raises (by meeting his burden
of production) a defense that negates an element of the
charged offense, the government bears the burden of
persuasion to disprove the defense. See Dixon, 548 U.S. at 11
(“We require[] the Government to prove the defendant’s
sanity beyond a reasonable doubt because the evidence that
tended to prove insanity also tended to disprove an essential
element of the offense charged.” (citing Davis v. United
States, 165 U.S. 373, 378 (1897))).

Conspiracy is a crime that presumes continuity until
accomplishment or termination; once a defendant becomes a
member of a conspiracy, he remains a member until he
affirmatively withdraws or the conspiracy ends. Hyde v.
United States, 225 U.S. 347, 368-70 (1912). Therefore, once
the government proves that a defendant was a member of an
ongoing conspiracy, it has proven the defendant’s continuous
membership in that conspiracy unless and until the defendant
withdraws. The question here then is whether withdrawing
from a conspiracy prior to the statute of limitations period
negates an element of the conspiracy such that the
government must prove that the defendant did not so
withdraw.

Our sister circuits have differed on this issue. While some
have said that the burden of proving withdrawal always rests
on the defendant, see, e.g., United States v. Eppolito, 543 F.3d
25, 49 (2d Cir. 2008); United States v. Arias, 431 F.3d 1327,
1340 (11th Cir. 2005); United States v. Brown, 332 F.3d 363,
374 (6th Cir. 2003); United States v. Hughes, 191 F.3d 1317,
1322 (10th Cir. 1999); United States v. Pettigrew, 77 F.3d
1500, 1514 (5th Cir. 1996), others have held that, once the
defendant meets his burden of production that he has
withdrawn prior to the relevant limitations period, the burden
of persuasion shifts to the government, see, e.g., United States
 105
v. Read, 658 F.2d 1225, 1232-33 (7th Cir. 1981); United
States v. Antar, 53 F.3d 568, 582-83 (3d Cir. 1995),
abrogated on other grounds by Smith v. Berg, 247 F.3d 532
(3d. Cir. 2001); United States v. Lothian, 976 F.2d 1257,
1261-62 (9th Cir. 1992); United States v. West, 877 F.2d 281,
289 (4th Cir. 1989); United States v. Dyer, 821 F.2d 35, 39
(1st Cir. 1987).

Our circuit, however, does not write on a blank slate. We
previously have said unequivocally, albeit in the context of
sentencing, that the defendant, not the government, “has the
burden of proving that he affirmatively withdrew from the
conspiracy if he wishes to benefit from his claimed lack of
involvement.” United States v. Thomas, 114 F.3d 228, 268
(D.C. Cir. 1997); see also United States v. Mitchell, 49 F.3d
769, 784 (D.C. Cir. 1995); United States v. Dale, 991 F.2d
819, 854 (D.C. Cir. 1993). We are obliged to follow our
precedent, and we thus hold that the district court correctly
instructed the jury that the defendant bore the burden of
persuasion to show that he withdrew from the conspiracy
outside of the statute of limitations period.

XXI.

Smith and Raynor were convicted of killing in furtherance
of a continuing criminal enterprise, 21 U.S.C. § 848(e)(1)(A)
(2000), murder in aid of racketeering, 18 U.S.C. § 1959, and
first-degree murder under D.C. Code § 22-2401 (1981)
(current version at D.C. Code § 22-2101). See also 18 U.S.C.
§ 2 (aiding and abetting); D.C. Code § 22-105 (1981) (current
version at D.C. Code § 22-1805) (same). The murders were
committed by other members of the charged conspiracy, with
Smith or Raynor participating. With regard to the principles
of liability, the district court instructed the jury that “[a]n
aider and abettor is legally responsible for the acts of other
 106
persons that are the natural and probable consequences of the
crime in which he intentionally participates.” Dec. 9, 2002
AM Trial Tr. at 95 (emphasis added).

Smith and Raynor challenge their federal and D.C. murder
convictions on the ground that the “natural and probable
consequences” formulation of the aiding and abetting
instruction permitted the jury to render a guilty verdict
without requiring the government to prove beyond a
reasonable doubt that Smith and Raynor acted with the
requisite specific intent to kill. Because they did not raise this
objection in the district court, our review is for plain error.
See United States v. Wilson, 605 F.3d 985, 1020 (D.C. Cir.
2010). To prevail Smith and Raynor must therefore identify a
legal error that was “plain,” meaning “clear” or “obvious,”
and demonstrate that such error affected substantial rights and
“seriously affect[ed] the fairness, integrity or public
reputation of judicial proceedings.” United States v. Olano,
507 U.S. 725, 732-37 (1993) (citation and quotation marks
omitted). “[W]here the law at the time of trial was settled and
clearly contrary to the law at the time of appeal . . . [,] it is
enough that an error be ‘plain’ at the time of appellate
consideration.” Johnson v. United States, 520 U.S. 461, 468
(1997).

For the following reasons we conclude that even assuming
error by the district court in using the “natural and probable
consequences” instruction for the aiding and abetting charges,
given the forfeiture of an argument by Smith and Raynor, the
error was not prejudicial in view of the district court’s
instruction on co-conspirator liability for acts reasonably
foreseen as a necessary or natural consequence of the
unlawful agreement. See Pinkerton v. United States, 328 U.S.
640, 645-48 (1946).
 107
With respect to the first-degree murder convictions under
the D.C. Code, Wilson-Bey v. United States, 903 A.2d 818
(D.C. 2006) (en banc), controls. There, the D.C. Court of
Appeals reversed a conviction for first-degree premeditated
murder while armed, in violation of D.C. Code § 22-2401,
because the “natural and probable consequences” aiding and
abetting instruction “omitted the mens rea element of the
offense charged,” namely “premeditation, deliberation, and
intent to kill.” Id. at 822. The court rejected the “natural and
probable consequences” formulation because its use was at
odds with the longstanding requirement that an accomplice
“knowingly associate[] herself with the commission of the
crime, that she participate[] in the crime as something she
wished to bring about, and that she intended by her actions to
make it succeed.” Id. at 835. To hold otherwise, the court
reasoned, “would permit liability to be predicated upon
negligence even when the crime involved requires a different
state of mind,” id. at 837, and eviscerate the distinction
between traditional first-degree murder and the unique
foreseeability test of felony murder, see id. at 838-39. The
government concedes as regards Smith’s and Raynor’s first-
degree murder convictions under the D.C. Code that the
district court’s use of the “necessary and probable
consequences” instruction was plain error. See Perez v.
United States, 968 A.2d 39, 93 (D.C. 2009).

With regard to the CCE and RICO murder convictions
under the U.S. Code, this court in reversing the aiding and
abetting conviction in United States v. Wilson, 160 F.3d 732
(D.C. Cir. 1998), held that aiding and abetting liability
requires proof of some shared intent by the aider and abettor
with that of the principal actor. There, the jury convicted
Ralph and Louis Wilson of a conspiracy to kill a witness
named Leroy Copeland, killing a witness with intent to
prevent him from testifying, both in violation of the U.S.
 108
Code, and first-degree murder while armed in violation of the
D.C. Code. In addition, the jury found Marcellus Judd guilty
of these crimes as an aider and abettor for his role in
informing the Wilsons that Copeland could be found nearby.
An aiding and abetting conviction required proof that Judd
had: “(1) the specific intent to facilitate the commission of a
crime by another; (2) guilty knowledge (3) that the other was
committing an offense; and (4) assisting or participating in the
commission of the offense.” United States v. Gaviria, 116
F.3d 1498, 1535 (D.C. Cir. 1997). In concluding that there
was insufficient evidence to convict Judd as an aider and
abettor, this court reasoned:

To prove aiding and abetting the government must
show that Judd shared some intent with the Wilson
brothers and took some affirmative action to assist
them in carrying out their plan to kill Copeland. See
Gaviria, 116 F.3d at 1535. Although the intent of the
aider and abettor need not be identical to that of the
principal, see United States v. Walker, 99 F.3d 439,
442 (D.C. Cir. 1996), the government still was
required to show that Judd had sufficient knowledge
and participation to allow a reasonable juror to infer
that he “knowingly and willfully participated in the
offense in a manner that indicated he intended to make
it succeed.” Teffera, 985 F.2d at 1086 (quoting United
States v. Raper, 676 F.2d 841, 849 (D.C. Cir. 1982)).

Wilson, 160 F.3d at 738. Evidence that Judd knew the
Wilsons were looking for Copeland was insufficient to show
that he knew the Wilsons were intending to kill Copeland and
that he had decided to assist them in that enterprise. See id.

The shared-intent standard for aiding and abetting in a
conspiracy case is at odds with the “natural and probable
 109
consequences formulation” of the aiding and abetting
instruction insofar as the jury may substitute a foreseeability
test for the mens rea requirement. Such use of the “natural
and probable consequences” formulation functionally
transforms aiding and abetting liability into conspiratorial
liability, when the Supreme Court has recognized the two are
distinct. Nye & Nissen v. United States, 336 U.S. 613, 620
(1949) (“Aiding and abetting has a broader application. It
makes a defendant a principal when he consciously shares in
any criminal act whether or not there is a conspiracy.”); see
id. at 630 (Murphy, J., dissenting) (the former involving “real
participation” and the latter “more remote plotting”); accord
Wilson-Bey, 903 A.2d at 839-42. Appellants contend that the
district court erred in instructing the jury with respect to the
federal murder charges that “[a]n aider and abettor is legally
responsible for the acts of other persons that are the natural
and probable consequences of the crime in which he
intentionally participates.” Dec. 9, 2002 AM Trial Tr. at 95.
Although the above-referenced quote from Wilson might tend
in appellants’ direction, we note that the Supreme Court in
2007 cited United States v. Walker, 99 F.3d 439, 443 (D.C.
Cir. 1996), in listing states and circuits that continue to apply
the “‘natural and probable consequences’ doctrine.” Gonzales
v. Duenas-Alvarez, 549 U.S. 183, 190-91, 197 (2007).
Although the instructional issue was not raised in Walker, this
court described the “natural and probable consequences”
instruction with approval. See 99 F.3d at 443 (citing United
States v. Sampol, 636 F.2d 621, 676 (D.C. Cir. 1980)).
Fortunately, we need not resolve any actual or apparent
conflict between Walker and Wilson in order to decide the
present issue, because the plain error standard of review
applies. We can hardly say the district court plainly erred by
following the same construction of precedent as the Supreme
Court. We further note that Smith and Raynor fail to show
how any such error “seriously affect[ed] the fairness, integrity
 110
or public reputation of judicial proceedings.” Olano, 507
U.S. at 732 (citation and quotation marks omitted). This is
because the district court’s co-conspirator liability instruction
cured any prejudice.

As a threshold matter, Smith and Raynor cursorily
contend that their murder convictions may not be sustained
under this alternative theory of liability because it is
impossible to know whether the jury arrived at its verdict by
following the district court’s aiding and abetting instruction or
its Pinkerton instruction. They provide no citation for this
argument, see Appellants’ Br. at 303 n.167, and it is
mentioned only in a footnote. Hence the argument is
forfeited. See Bush v. District of Columbia, 595 F.3d 384,
388 (D.C. Cir. 2010) (citing FED. R. APP. P. 28(a)(9)(A)); Am.
Wildlands v. Kempthorne, 530 F.3d 991, 1001 (D.C. Cir.
2008). 22

22
We note, however, that the Supreme Court held in Yates v.
United States, 354 U.S. 298, 312 (1957), that “the proper rule to be
applied is that which requires a verdict to be set aside in cases
where the verdict is supportable on one ground, but not on another,
and it is impossible to tell which ground the jury selected.” The
Court narrowed this holding in Griffin v. United States, 502 U.S.
46, 59 (1991), to situations in which one of the grounds upon which
the jury could have reached its verdict was legally, as opposed to
factually, inadequate. See United States v. Johnson, 216 F.3d 1162,
1165 n.2 (D.C. Cir. 2000). Although the prejudice inquiry might
normally be cut short by application of the Yates rule where, as
here, the challenge is to the legality of the aiding and abetting
instruction, this court has suggested that review under the plain
error standard, as opposed to the harmless error standard, in a Yates
case “would significantly affect the way in which [the court]
analyze[s] [the] appeal” to the extent there is overwhelming
evidence to support the conviction under the proper jury instruction,
 111
The D.C. Court of Appeals’ post-Wilson-Bey decisions in
Wheeler v. United States, 977 A.2d 973 (D.C. 2009), and Neal
v. United States, 940 A.2d 101 (D.C. 2007), are instructive.
In both cases, the court held that, despite an erroneous aiding
and abetting instruction, a Pinkerton instruction preserved the
convictions for a given crime because the jury, having
convicted the aider and abettor of a charged conspiracy, could
have found that the crime was foreseeable and committed in
furtherance of the charged conspiracy. Smith and Raynor
correctly respond that Wheeler concerned a conspiracy to
commit a single overt act of murder, and the jury necessarily
found that Wheeler acted with the specific intent to kill in
convicting him of conspiracy to commit murder. 977 A.2d at
984. Here, by contrast, the conspiracy count contains 236
overt acts and such a conclusion cannot be drawn. But their
argument misunderstands the relationship between the two

but had no occasion to decide which was the appropriate standard.
United States v. Perkins, 161 F.3d 66, 73-74 (D.C. Cir. 1998).
Other circuits have held that Yates does not apply under the plain
error standard because the burden of establishing harm is on the
defendant. See United States v. Hastings, 134 F.3d 235, 242-44
(4th Cir. 1998); see also United States v. Colvin, 353 F.3d 569,
576-77 (7th Cir. 2003).

Here, for two reasons, we will assume without deciding that
under plain error review Yates does not require Smith’s and
Raynor’s murder convictions to be set aside even though we do not
know whether the jury convicted for aiding and abetting or under
Pinkerton. First, Smith and Raynor have forfeited the argument by
citing no authority and by raising it in a footnote. See Bush, 595
F.3d at 388; Am. Wildlands, 530 F.3d at 1001. Second, Smith and
Raynor shoulder the burden of demonstrating that instructional
error prejudiced their defense under the plain error standard, see
Appellants’ Br. at 302, a position their counsel reiterated during
oral argument, see Oral Arg. Tr. at 80.
 112
types of liability and conflates the two alternative approaches
taken in Wheeler. See id. It is true that a conviction for
conspiracy based on hundreds of possible overt acts does not
permit the inference that the jury found the overt act murders
to have been committed with the requisite intent. Such proof,
however, is not required under the Pinkerton theory of
liability. As the D.C. Court of Appeals explained in Wheeler:

Under Pinkerton . . . the intent necessary for
conviction of murder as an aider and abettor under
Wilson-Bey yields to virtually the same state of mind
— the lesser foreseeability or natural and probable
consequences standard — found erroneous in the
court’s aiding-and-abetting instruction. In short, a
conspiracy — an agreement not necessarily present
among aiders and abettors — is deemed a substitute
for the particular state of mind required for convicting
a nonconspiratorial accomplice of murder under
Wilson-Bey. A jury finding that Wheeler had the state
of mind required for conviction of first-degree murder
was therefore not necessary for conviction under the
Pinkerton theory.

Id. at 985 (emphasis added); accord United States v. Vazquez-
Castro, 640 F.3d 19, 24 (1st Cir. 2011). Pinkerton co-
conspirator liability exists, moreover, even where the
substantive offense is not an overt act alleged in the
indictment. See United States v. Washington, 106 F.3d 983,
1011 (D.C. Cir. 1997). It requires only that the substantive
offense be committed in furtherance of the conspiracy and
reasonably foreseeable as a necessary or natural consequence
of the unlawful agreement. See id. at 1012. This is the
relevant analysis here.
 113
There was ample evidence for the jury reasonably to find
that the murders for which Smith and Raynor were convicted
were foreseeable and in furtherance of the charged
conspiracy. Smith and Raynor’s attempt to show otherwise is
unpersuasive; they summarize the facts of each murder and
claim either there was insufficient admissible evidence to
support the murder conviction or there is no evidence
establishing the murders were related to the conspiracy’s
dealings. As regards the former, those contentions are
discussed and rejected elsewhere. See supra Part XVIII. As
regards the latter, the superseding indictment and evidence at
trial make clear that one of the principal goals of the drug
conspiracy was killing to enhance the conspiracy’s power,
protect the reputation of the conspiracy and its members, and
collect money owed to the conspiracy. See Superseding
Indict. at 4-5. It was reasonable for the jury to find that each
of the murders furthered one (if not more) of these goals. See
United States v. Carson, 455 F.3d 336, 376 (D.C. Cir. 2006).

Accordingly, any error regarding the “natural and
probable consequences” instruction did not “seriously affect[]
the fairness, integrity or public reputation of judicial
proceedings,” Olano, 507 U.S. at 732 (citation and quotation
marks omitted), because the evidence supports the jury’s
verdict on Smith’s and Raynor’s CCE, RICO, and first-degree
murder convictions under the alternative Pinkerton theory of
liability.

XXII.

Following the government’s proposal to try appellants
together—in a trial separate from and prior to other charged
co-conspirators—Nunn and Handy moved for severance of
their trials from that of their codefendants. In a memorandum
opinion, the district court denied Nunn’s and Handy’s
 114
motions, adopting the government’s proposal to try all
appellants in a single trial. United States v. Gray, 173 F.
Supp. 2d 1 (D.D.C. 2001). Nunn and Handy argue on two
bases that the district court erred by refusing to sever their
trials. First, they argue that their codefendants were charged
with more numerous and serious crimes, the evidence of
which could have a “spillover” effect, akin to guilt-by-
association, that would prejudice the jury against them.
Second, they maintain that they should not have been forced
to be tried alongside Moore and Gray, who were facing the
death penalty, because it caused them prejudice to be tried by
a death-qualified jury.

Rule 14(a) of the Federal Rules of Criminal Procedure
provides that “[i]f the joinder of offenses or defendants in an
indictment, an information, or a consolidation for trial appears
to prejudice a defendant or the government, the court may
order separate trials of counts, sever the defendants’ trials, or
provide any other relief that justice requires.” As is clear
from the text of the rule, district courts have significant
flexibility to determine how to remedy any potential risk of
prejudice posed by the joinder of multiple defendants in a
single trial. See United States v. Lane, 474 U.S. 438, 449 n.12
(1986). Thus “Rule 14 does not require severance even if
prejudice is shown,” Zafiro v. United States, 506 U.S. 534,
538-39 (1993), and in many circumstances district courts may
order lesser forms of relief to cure any prejudice. Indeed,
although a district court may grant a severance in a wider
array of circumstances, the Supreme Court has held that “a
district court should grant a severance under Rule 14 only if
there is a serious risk that a joint trial would compromise a
specific trial right of one of the defendants, or prevent the jury
from making a reliable judgment about guilt or innocence.”
Id. at 539. The Court has further explained that even “[w]hen
the risk of prejudice is high, . . . less drastic measures, such as
 115
limiting instructions, often will suffice to cure any risk of
prejudice.” Id.

We review the district court’s decision not to sever the
trials of defendants under Rule 14(a) only for abuse of
discretion. Id. at 541; United States v. Brown, 16 F.3d 423,
426-27 (D.C. Cir. 1994). In reviewing the exercise of the
district court’s discretion, we keep in mind that “‘[t]he
balance has been struck in favor of joint trials.’” United
States v. Hines, 455 F.2d 1317, 1334 (D.C. Cir. 1972)
(alterations in original) (quoting United States v. Krechevsky,
291 F. Supp. 290, 294 (D. Conn. 1967)). We hold that the
district court did not abuse its discretion when it declined to
sever the trials of Handy and Nunn from that of the other
appellants.

We turn first to the question of “spillover” prejudice:
Acknowledging that it may prejudice a defendant to be tried
together with another defendant accused of more serious or
more numerous crimes, we have held that “severance is
required when the evidence against one defendant is ‘far more
damaging’ than the evidence against the moving party.”
United States v. Bruner, 657 F.2d 1278, 1290 (D.C. Cir.
1981) (quoting United States v. Mardian, 546 F.2d 973, 977
(D.C. Cir. 1976) (en banc)). However, “[a]bsent a dramatic
disparity of evidence, any prejudice caused by joinder is best
dealt with by instructions to the jury to give individual
consideration to each defendant.” United States v. Slade, 627
F.2d 293, 309 (D.C. Cir. 1980) (emphasis added). In other
words, some disparity in evidence does not compel severance;
rather, when there is “substantial and independent evidence of
each [defendant’s] significant involvement in the conspiracy,”
severance is not required. United States v. Tarantino, 846
F.2d 1384, 1399 (D.C. Cir. 1988); see also Slade, 627 F.2d at
310 (finding severance not required despite disparity in
 116
evidence because evidence against defendant was
“independent and substantial”).

In this case, although Handy and Nunn were alleged to
have committed fewer crimes and arguably had a less
extensive role in the charged conspiracy than the other
defendants tried with them, the disparity of evidence did not
rise to a level necessary to mandate severance. The
government presented substantial and independent evidence
of Handy’s and Nunn’s involvement in the charged
conspiracy and crimes in furtherance thereof. Furthermore,
the district court gave the following instruction to the jury:

Unless I have instructed you otherwise, you should
consider each instruction that the Court has given you
to apply separately and individually to each defendant
on trial. Likewise, you should give separate
consideration and render separate verdicts with respect
to each defendant. Each defendant is entitled to have
his guilt or innocence of the crime for which he is on
trial determined from his own conduct and from the
evidence that applies to him as if he were being tried
alone. The guilt or innocence of any one defendant
should not control or influence your verdict as to the
other defendants. You may find any one or more of
the defendants guilty or not guilty.

Dec. 9, 2002 AM Trial Tr. at 90.

Although we do not ignore the possibility that some
“spillover” prejudice may have resulted to Handy and Nunn
from being tried together with their codefendants, the district
court’s jury instructions, by explaining that each defendant’s
guilt should be considered individually based upon the
 117
evidence that pertained to him, were sufficient to cure any
such prejudice.

Furthermore, Handy and Nunn were not entitled to
severance merely because their guilt was adjudicated by a
death-qualified jury. Facing a death-qualified jury did not
“compromise a specific trial right” of Handy or Nunn. Zafiro,
506 U.S. at 539. Indeed, in Buchanan v. Kentucky, the
Supreme Court made clear that trial before a death-qualified
jury does not violate the constitutional rights of a noncapital
defendant. 483 U.S. 402, 414-20 (1987). Neither did the
death-qualification of the jury “prevent the jury from making
a reliable judgment about guilt or innocence.” Zafiro, 506
U.S. at 539. Implicit in the holding of Buchanan is the
recognition that a death-qualified jury, no less than any other
jury, is able to make a reliable judgment concerning guilt or
innocence. To the extent appellants ask us to find that
severance was required based only upon their allegation that
death-qualified juries are more likely to convict than other
juries, we may easily dispense with this argument as well. As
the Supreme Court has explained, “defendants are not entitled
to severance merely because they may have a better chance of
acquittal in separate trials.” Id. at 540. The district court
acted within the appropriate bounds of its discretion in
declining to sever Handy’s and Nunn’s trials from that of their
codefendants.

XXIII.

Next Handy contends that the district court erred in
denying his motions for a new trial. Our review is for abuse
of discretion unless the issue presented on appeal is purely
legal, in which event our review is de novo. See United States
v. Oruche, 484 F.3d 590, 595 (D.C. Cir. 2007).
 118
Handy filed his first motion for a new trial following his
conviction for participating in drug and RICO conspiracies
and several other crimes involving narcotics, murder,
obstruction of justice, and the use of firearms. See Jan. 9,
2003 AM Trial Tr. at 55-59. He argued there was insufficient
evidence of his guilt and that the district court erred in making
various evidentiary rulings and in instructing the jury. The
district court denied the motion, finding that there was
sufficient evidence for a reasonable jury to conclude that
Handy was a “hitman” for the conspiracy, which he joined in
the mid-1990s, and rejecting his other claims of error. See
United States v. Gray, 292 F. Supp. 2d 71, 90-91 (D.D.C.
2003). Handy filed his second motion for a new trial during
the pendency of the subsequent, separate trial of other alleged
co-conspirators. This time he argued that the government had
unconstitutionally withheld exculpatory and impeachment
evidence, in violation of Brady v. Maryland, 373 U.S. 83
(1963), and its progeny. The district court denied the motion,
ruling that “the evidence is not at all exculpatory or
impeaching” and “the withholding of the evidence did not
prejudice Handy.” United States v. Handy, No. 00-157, at 3-4
(D.D.C. Mar. 4, 2005).

On appeal, Handy raises only some of the arguments he
made in his motions; only the sufficiency of evidence claims
relating to Handy’s entry into the conspiracy and the murders
of Richard Simmons and Demetrius Green, and the Brady
claim relating to the pretrial statements of Cheryl Pinkard, are
properly presented. The remaining arguments (including
those relating to Scorpio Phillips) are forfeited because Handy
has presented unsupported narratives lacking citation to the
record and relevant authority. See Bush v. Dist. of Columbia,
595 F.3d 384, 388 (D.C. Cir. 2010); United States v. Hall, 370
F.3d 1204, 1209 n.4 (D.C. Cir. 2004).
 119
A.

Handy’s arguments regarding the sufficiency of evidence
are unpersuasive. Handy maintains there was a fatal variance
between the superseding indictment and the government’s
proof at trial regarding his entry into the conspiracy because
none of the cooperating co-conspirators testified that Handy
had agreed with them or with Gray or Moore to join the
charged conspiracy in the mid-1990s or thereafter. Such
direct evidence of agreement is not required, however; the
jury may infer conspiratorial agreement from the
circumstances and the defendant’s knowledge. See United
States v. Childress, 58 F.3d 693, 710 (D.C. Cir. 1995). The
cooperating co-conspirators provided ample testimony upon
which the jury reasonably could infer Handy’s knowledge of,
and agreement to join, the drug conspiracy in the mid-1990s,
and as early as 1994. See, e.g., May 21, 2002 AM Trial Tr. at
33-34; July 9, 2002 AM Trial Tr. at 53-54. For example,
Maurice Andrews testified that Handy was a participant in a
drug operation located in the Northeast quadrant of
Washington, D.C., which Moore and Gray actively managed
in 1995-1996. See July 9, 2002 PM Trial Tr. at 82-83; supra
Part VII. Further, the continuity of Handy’s participation
through 1998-1999, see July 10, 2002 PM Trial Tr. at 71,
undermines his contention that the evidence demonstrated at
best a buyer-seller relationship, rather than membership in the
conspiracy. See United States v. Thomas, 114 F.3d 228, 241
(D.C. Cir. 1997); Childress, 58 F.3d at 714.

With respect to the Richard Simmons murder, the
superseding indictment did not inconsistently charge Handy
with committing the murder in July 1997 to gain entrance to
the conspiratorial enterprise while also alleging that he joined
the charged conspiracy in the mid-1990s. An indictment may
charge alternative means of committing a crime. See United
 120
States v. Coughlin, 610 F.3d 89, 106-07 & n.10 (D.C. Cir.
2010). The superseding indictment, tracking the text of the
RICO violent crimes statute, charged Handy with murdering
Simmons for the alternative reasons listed in the statute — “as
consideration for the receipt of, or as consideration for a
promise or agreement to pay, anything of pecuniary value . . .
or for the purpose of gaining entrance to or maintaining or
increasing position in an enterprise engaged in racketeering
activity.” 18 U.S.C. § 1959(a); see also Count 60,
Superseding Indict. at 134. The jury reasonably could have
found from the evidence that Handy committed the murder in
exchange for money, see Oct. 16, 2002 AM Trial Tr. at 130-
34, or to maintain his status as an enforcer, see July 9, 2002
AM Trial Tr. at 54; see also United States v. Carson, 455 F.3d
336, 370 (D.C. Cir. 2006). 23

It also was well within reason for the jury to find that
Demetrius Green’s murder was a consequence of a territorial
drug dispute associated with the charged conspiracy. Green
was selling marijuana for James Penn, who controlled a
stretch of houses at the top of a hill on Forrester Street
Southwest, less than a quarter mile from the Southeast border.
Handy, accompanied by another man identified in the
superseding indictment as Taron Oliver, was also selling
marijuana down the hill nearer to the Southeast quadrant of
Washington, D.C., not too far from Green. Penn understood
Handy and Oliver to be associated with Erskine Hartwell, see
Sept. 24, 2002 PM Trial Tr. at 19, all of whom were members
of Moore and Gray’s drug operation in Northeast, see July 9,
2002 PM Trial Tr. at 82; Aug. 26, 2002 PM Trial Tr. at 113-

23
There is no claim that the jury lacked unanimity as to the
ground for conviction. See United States v. North, 910 F.2d 843,
876 (D.C. Cir. 1990).
 121
16. Because Handy was, in Penn’s words, “stepping on
[Green’s] toes” by taking sales away, Penn walked down the
hill to “holler at [Handy]” to “slow down” and not make so
many sales. Sept. 24, 2002 PM Trial Tr. at 23, 25-26.
Following the verbal warning, which was essentially ignored,
Penn retreated up the hill to get his guns. Penn testified that
he took action because Handy “didn’t have no business right
there” and that Handy’s selling marijuana on that section of
Forrester Street was considered to be “some sort of violation.”
Id. at 26. By the time he retrieved his guns, Penn testified,
“somebody had ran in and said they had shot [Green].” Id. at
28. Oscar Veal testified that Handy later claimed credit for
murdering Green. See Aug. 27, 2002 PM Trial Tr. at 18.
Eliminating rival competitors furthered the charged
conspiracy by strengthening its presence in the D.C. drug
trade. See United States v. Walker, 142 F.3d 103, 114 (2d Cir.
1998).

B.

More colorable is Handy’s contention that the government
failed to fulfill its obligations under Brady, 373 U.S. 83, by
not disclosing exculpatory and impeachment evidence from
Cheryl Pinkard, an eyewitness to Richard Simmons’s murder.
The government’s key evidence against Handy was an
eyewitness account of the murder by the victim’s mother,
Margarita Simmons. Ms. Simmons testified at trial that just
prior to the murder she was standing by Richard as he used a
street pay phone. She watched as Handy ran down H Street,
Northeast, from the 12th Street side, drew a gun, and fired at
Richard. Ms. Simmons grabbed Richard briefly before he ran
away from Handy toward the corner of 11th Street and H
Street. Richard collapsed at that intersection and Handy,
standing over him, shot Richard several times. See Aug. 19,
2002 AM Trial Tr. at 9-14. Handy contends that an FBI 302
 122
interview report 24 and the grand jury testimony of Pinkard,
Richard’s girlfriend, were exculpatory and subject to
disclosure under Brady because they could have been used to
impeach Ms. Simmons’s testimony. See Giglio v. United
States, 405 U.S. 150, 153-54 (1972). In Handy’s view, the
report and grand jury testimony show that Pinkard did not see
Ms. Simmons standing with Richard at the pay phone and
therefore Ms. Simmons was not an eyewitness to the murder.
The government responds that there was nothing exculpatory
about the report or Pinkard’s grand jury testimony, and
because they were not “material” disclosure was not required
under Brady.

Under Brady, the government has a constitutional
obligation to disclose “evidence favorable to an accused that
is material to guilt or to punishment.” Cone v. Bell, 129 S. Ct.
1769, 1772 (2009); see also Oruche, 484 F.3d at 596. To
show a Brady violation, the defendant must establish that the
evidence or information is favorable to him, either because it
is exculpatory or impeaching; that the evidence was
suppressed by the government, either willfully or
inadvertently; and that he was prejudiced by the
nondisclosure. Strickler v. Greene, 527 U.S. 263, 281-82
(1999); see also United States v. Bailey, 622 F.3d 1, 8 (D.C.
Cir. 2010). Prejudice exists when the undisclosed evidence or
information is “material,” meaning “there is a reasonable
probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been
different.” United States v. Bagley, 473 U.S. 667, 682 (1985);
see also United States v. Pettiford, 627 F.3d 1223, 1227 (D.C.
24
FBI 302 reports “are the formal typewritten interview reports
prepared from the rough [interview] notes and recorded on Form
FD-302.” United States v. Harrison, 524 F.2d 421, 424 n.2 (D.C.
Cir. 1975).
 123
Cir. 2010). The district court’s findings of fact, including
determinations of credibility at trial and in post-trial
proceedings, are reviewed for abuse of discretion, “[b]ut once
the existence and content of undisclosed evidence has been
established, the assessment of the materiality of evidence
under Brady is a question of law,” which this court reviews de
novo. Oruche, 484 F.3d at 595.

In making an initial determination about whether evidence
or information is “material” and therefore subject to
disclosure under Brady, see United States v. Williams-Davis,
90 F.3d 490, 514 (D.C. Cir. 1996), the prosecutor is afforded
“a degree of discretion” bound by “a corresponding burden”
(inasmuch as the prosecution “alone can know what is
undisclosed”) of “gaug[ing] the likely net effect of all such
evidence and mak[ing] disclosure when the point of
‘reasonable probability’ is reached,” Kyles v. Whitley, 514
U.S. 419, 437 (1995). The Supreme Court has instructed that
“the prudent prosecutor will resolve doubtful questions in
favor of disclosure.” United States v. Agurs, 427 U.S. 97, 108
(1976); see Kyles, 514 U.S. at 439. This is particularly true
where the defendant brings the existence of what he believes
to be exculpatory or impeaching evidence or information to
the attention of the prosecutor and the district court, in
contrast to a general request for Brady material. See
Pennsylvania v. Ritchie, 480 U.S. 39, 59 (1987).

Here, a prudent prosecutor would have disclosed at least
Pinkard’s grand jury testimony. Handy filed multiple
requests for discovery, each of which sought Brady material
related to the Simmons murder. Although Pinkard was not
mentioned by name, Handy specifically sought, “[i]n
reference to the Richard Simmons homicide, . . . any and all
documents.” Def. Timothy Handy’s First Mot. to Compel
Disc. app. 2, at 5 (Sept. 13, 2001). In subsequent
 124
correspondence with the government, Handy asked for “all
documents pertaining to statements of non-testifying
witnesses” and “Brady evidence and information regarding
the murder of Mr. Richard Simmons,” including “information
that may impeach the witnesses against Mr. Handy.” Id. app.
3, at 3. Although the Supreme Court has rejected the notion
that Brady created a right of open file discovery for criminal
defendants, see Kyles, 514 U.S. at 437; Ritchie, 480 U.S. at
59, given Handy’s repeated requests and the centrality of
eyewitness testimony to the government’s case against him
concerning the Simmons murder, cf. Kyles, 514 U.S. at 441-
44, the prosecutor should have recognized that Pinkard’s
eyewitness account raised at the least a “doubtful question[]”
favoring disclosure under Brady, see Agurs, 427 U.S. at 108.

The government’s suggestion on appeal that Handy’s
Brady claim is foreclosed by his knowledge at the time of trial
is not well taken. It noted that Handy knew Pinkard had
witnessed the shooting and cross-examined Ms. Simmons
without Pinkard’s grand jury testimony. Although “the right
of the defendant to disclosure by the prosecutor is deemed
waived if defense counsel with actual knowledge of the . . .
information chooses not to present such information to the
jury,” United States v. Iverson, 648 F.2d 737, 739 (D.C. Cir.
1981), the specificity and scope of the defendant’s knowledge
is the key consideration. In United States v. Smith, 77 F.3d
511, 515-16 (D.C. Cir. 1996), the court held that although
aspects of a witness’s plea agreement were known to the
defendant, the prosecutor’s nondisclosure of other elements of
the plea agreement unknown to the defendant violated Brady
because the information was material to the defendant’s
ability to impeach the witness. A review of the trial transcript
excerpts provided by the parties indicates that Handy knew
only that Pinkard was at the murder scene and had
accompanied Ms. Simmons to the hospital after the shooting;
 125
his cross-examination of Ms. Simmons was limited to
whether she spoke to Pinkard at the hospital, Aug. 19, 2002
AM Trial Tr. at 60-61, and when she first saw Pinkard at the
scene, Aug. 19, 2002 PM Trial Tr. at 20-21. Absent the
government’s disclosure of Pinkard’s grand jury testimony,
Handy lacked a reason to delve further into Ms. Simmons’s
and Pinkard’s allegedly different accounts of the murder.
Under Brady it was incumbent upon the prosecutor to disclose
Pinkard’s grand jury testimony to Handy for his use at trial.
See Giglio, 405 U.S. at 154; Bagley, 473 U.S. at 678; United
States v. Celis, 608 F.3d 818, 835 (D.C. Cir. 2010).

Nonetheless, Handy fails to show that the violation of his
due process right to disclosure under Brady was “material.”
See Strickler, 527 U.S. at 281-82; Bagley, 473 U.S. at 682.
Handy places significant weight on Pinkard’s testimony of
December 11, 2003, during the subsequent trial of other co-
conspirators. See Dec. 11, 2003 PM Group 2A Trial Tr. at
28-30, 50-51, 82-83, 86, 92, 95-98. In his view, her testimony
that Ms. Simmons was not standing by Richard’s side when
he was talking on the pay phone before being shot is
“illustrative” of the fact that Pinkard witnessed the murder but
Ms. Simmons did not. This proves, Handy maintains, that the
government knew Pinkard was a witness capable of
impeaching Ms. Simmons’s credibility as an eyewitness to
Richard’s murder, and thus her pretrial statements to law
enforcement and grand jury testimony should have been
disclosed. But Handy overstates the force of any likely
impeachment.

First, Pinkard’s subsequent trial testimony is not as
impeaching as Handy suggests. She acknowledged up to a
minute gap between observing Richard walk out to the pay
phone and looking up to see him run down the street. See id.
 126
at 95. Ms. Simmons might easily have appeared at Richard’s
side during this time.

Second, before the grand jury Pinkard recounted that,
prior to the murder, she was talking to her father on a pay
phone across the street from Richard’s sports store. See Oct.
27, 2000 Grand Jury Tr. at 23-24. She observed Richard exit
the store to use the pay phone and signaled that they were
running late by tapping her wrist. She then testified that “less
than five minutes” later she “heard something go boom” and
looked up to see Richard running down the street. See id. at
24. She then crossed the street to where Richard had
collapsed, noting that Ms. Simmons “was, like, already right
there. I don’t know where she had come from.” Id. at 26.
Absent from the grand jury transcript is any assertion by
Pinkard that Ms. Simmons was not standing next to Richard
when he was shot while standing at the pay phone. To the
contrary, the following exchange occurred:

Q: And do you remember [Ms. Simmons] being outside
at the time [of the shooting]?

A: I think she was, but I’m not sure . . . . I think she
was, because I think — I’m not sure, but I think
when [Richard] came out to use the phone, he had
locked the door. But I’m not sure. I don’t know
where she popped up from.

Id. at 41. Thus, Pinkard’s subsequent trial testimony is
inconsistent with, rather than illustrative of, her grand jury
testimony on the key point. In another respect, her grand jury
testimony shares the same flaw as her subsequent trial
testimony. The five-minute gap between Pinkard observing
Richard at the pay phone and hearing the first gunshot was a
relatively lengthy period during which Ms. Simmons could
 127
have emerged from the store and joined Richard on the
sidewalk without Pinkard’s knowledge. Had the government
disclosed the grand jury testimony to Handy prior to his trial,
there is not a reasonable probability that this information
could have been used to impeach Ms. Simmons’s claim to be
an eyewitness to Richard’s murder such that it would have
changed the outcome of the proceeding.

Third, even assuming a prudent prosecutor would have
disclosed the FBI 302 interview report, it contains no
representation one way or the other as to whether Ms.
Simmons was present at the time of Richard’s murder. The
only reference to Ms. Simmons is this sentence: “PINKARD
stated that she and [Richard] SIMMONS has just left their
house and were en route to the movies when SIMMONS’
mother paged him.” See Def. Handy’s Second Mot. for New
Trial Exhibit 18, at 1 (Dec. 18, 2004). It is far from apparent
how Handy could have used information from the FBI 302
interview report to impeach Ms. Simmons’s credibility as an
eyewitness and, as such, we are confident its use, even with
disclosure of Pinkard’s grand jury testimony, would not have
changed the outcome of the proceedings.

XXIV.

We reject all claims raised by appellants that we have not
discussed individually. We have fully considered all such
claims and find they do not warrant separate discussion or
relief.

***

For the foregoing reasons, we affirm all of appellants’
convictions except Count 32, which we vacate; Counts 4 and
5, which we remand to the district court for an evidentiary
 128
hearing and to address Smith’s ineffective assistance of
counsel claim; and Counts 126-138, which we remand to the
district court for consideration in light of Bullcoming v. New
Mexico, No. 09-10876 (U.S. June 23, 2011).
 ROGERS, Circuit Judge, concurring in part in Part I of the
per curiam opinion: In Batson v. Kentucky, 476 U.S. 79 (1986),
the Supreme Court announced a three-part analysis to identify
whether racial discrimination had motivated peremptory
challenges in jury selection. First, the defendant must establish
a prima facie case by showing that “the totality of the relevant
facts gives rise to an inference of discriminatory purpose,” with
respect to either a particular peremptory strike or a pattern of
strikes. Id. at 93–94. Second, the prosecutor must “come
forward with a neutral explanation for challenging [the] jurors,”
not based on racial or other impermissible classifications. Id. at
97. Third, the trial judge then “will have the duty to determine
if the defendant has established purposeful discrimination.” Id.
at 98; see also Johnson v. California, 545 U.S. 162, 168 (2005);
Purkett v. Elem, 514 U.S. 765, 767 (1995). This court has
seldom addressed a Batson challenge, and on the rare occasion
it has, our analysis of step three was limited.1 A few
observations beyond those stated by the court today are in order.

Justice Marshall, concurring in Batson, which he
characterized as a “historic step toward eliminating the shameful
practice of racial discrimination in the selection of juries,” had
grave doubts that the goal of “end[ing] the racial discrimination
that peremptories inject into the jury-selection process” could be
accomplished without “eliminating peremptory challenges

1
See United States v. Watson, 483 F.3d 828 (D.C. Cir. 2007);
United States v. Spriggs, 102 F.3d 1245, 1254–55 (D.C. Cir. 1996);
United States v. White, 899 F.2d 52 (Table), 1990 WL 42213 (D.C.
Cir. Apr. 4, 1990). By contrast, the Batson issue has been fulsomely
explored on multiple occasions by the District of Columbia Court of
Appeals where the United States Attorney is also responsible for
prosecutions involving felonies and major misdemeanors under the
D.C. Code. See, e.g., Smith v. United States, 966 A.2d 367, 369–88
(D.C. 2009).
 2

entirely.” Id. at 102–03 (Marshall, J., concurring). His doubts,
he explained, arose because defendants are only able to attack
discriminatory use of peremptory challenges where the
challenges are so flagrant as to establish a prima facie case, and
because trial judges face the difficult burden of assessing a
prosecutor’s motives. See id. at 105–06. As to the latter, Justice
Marshall asked, citing examples from the case law:

How is the court to treat a prosecutor’s statement that
he struck a juror because the juror had a son about the
same age as [the] defendant, or seemed
“uncommunicative,” or “never cracked a smile” and,
therefore “did not possess the sensitivities necessary to
realistically look at the issues and decide the facts in
this case”?

Id. at 106 (internal citations omitted). Justice Marshall foresaw
that “[i]f such easily generated explanations are sufficient to
discharge the prosecutor’s obligation to justify his strikes on
nonracial grounds, then the protection erected by the Court
today may be illusory.” Id.

Justice Powell, writing for the Court, responded:

While we respect the views expressed in Justice
Marshall’s concurring opinion concerning
prosecutorial and judicial enforcement of our holding
today, we do not share them. . . . We have no reason to
believe that prosecutors will not fulfill their duty to
exercise their challenges only for legitimate purposes.
Certainly, this Court may assume that trial judges, in
supervising voir dire in light of our decision today, will
be alert to identify a prima facie case of purposeful
discrimination. Nor do we think that this historic trial
practice, which long has served the selection of an
 3

impartial jury, should be abolished because of an
apprehension that prosecutors and trial judges will not
perform conscientiously their respective duties under
the Constitution.

Id. at 99 n.22 (majority opinion).

The Supreme Court, therefore, expected that trial judges, in
fulfilling their duty, would effectively ensure that the justice
system did not facilitate the denial of equal protection by
remaining vigilant and attentive to the risk that overzealous
prosecutors may inject racial strategies into jury selection in the
effort to obtain a conviction. See, e.g., Duncan v. Louisiana,
391 U.S. 145, 155-56 (1968). The Court expected the trial judge
would undertake “‘a sensitive inquiry into such circumstantial
and direct evidence of intent as may be available.’” Batson, 476
U.S. at 93 (quoting Arlington Heights v. Metro. Hous. Dev.
Corp., 429 U.S. 252, 266 (1977)).

The Supreme Court has repeatedly emphasized the
significance of the trial judge’s role at step three. In Johnson,
the Court explained:

The first two Batson steps govern the production of
evidence that allows the trial court to determine the
persuasiveness of the defendant’s constitutional claim.
“It is not until the third step that the persuasiveness of
the justification becomes relevant — the step in which
the trial court determines whether the opponent of the
strike has carried his burden of proving purposeful
discrimination.”

545 U.S. at 171 (quoting Purkett, 514 U.S. at 768). Indeed, the
defendant need not show that it is more likely than not that the
peremptory challenges, if unexplained, were based on
 4

impermissible group bias, id. at 168, 173, and the case proceeds
to step three even if the prosecution “produces only a frivolous
or utterly nonsensical justification for its strike,” id. at 171. As
explained in Snyder v. Louisiana, 552 U.S. 472 (2008):

The trial court has a pivotal role in evaluating Batson
claims. Step three of the Batson inquiry involves an
evaluation of the prosecutor’s credibility, and “the best
evidence [of discriminatory intent] often will be the
demeanor of the attorney who exercises the challenge.”
In addition, race-neutral reasons for peremptory
challenges often invoke a juror’s demeanor (e.g.,
nervousness, inattention), making the trial court’s
first-hand observations of even greater importance.

Id. at 477 (alteration in original) (internal citations omitted). A
reviewing court, in turn, “ordinarily should give [the trial
judge’s] findings” based on an evaluation of demeanor and
credibility “great deference.” Batson, 476 U.S. at 98 n.21.

“The Batson framework is designed to produce actual
answers to suspicions and inferences that discrimination may
have infected the jury selection process.” Johnson, 545 U.S. at
172. “The three-step process . . . simultaneously serves the
public purposes Batson is designed to vindicate and encourages
prompt rulings on objections to peremptory challenges without
substantial disruption of the jury selection process.” Id. at
172–73 (citation and internal quotation marks omitted). The
rights Batson vindicates, however, are not confined to the rights
possessed by the defendant on trial, but extend “to those citizens
who desire to participate ‘in the administration of the law, as
jurors,’” id. at 172 (quoting Strauder v. West Virginia, 100 U.S.
303, 308 (1880)), as well as to “the overriding interest in
eradicating discrimination from our civic institutions [that]
suffers whenever an individual is excluded from making a
 5

significant contribution to governance on account of his race” or
other suspect characteristic, id. The “harm from discriminatory
jury selection extends beyond that inflicted on the defendant and
the excluded juror to touch the entire community,”for
“[s]election procedures that purposefully exclude black persons
from juries undermine public confidence in the fairness of our
system of justice.” Batson, 476 U.S. at 87; see also Powers v.
Ohio, 499 U.S. 400, 412 (1991). Long before Batson, the
Supreme Court had observed: “For racial discrimination to
result in the exclusion from jury service of otherwise qualified
groups not only violates our Constitution and the laws enacted
under it but is at war with our basic concepts of a democratic
society and a representative government.” Smith v. Texas, 311
U.S. 128, 130 (1940) (footnote omitted). The role of the trial
judge, in either dispelling any notion that the proceedings have
been affected by prejudice or repudiating such prejudice when
it occurs, remains paramount, even today in the District of
Columbia.2 This important function of the trial judge is fully
consistent with the motivations underlying Batson, 476 U.S. at
87, and not served by conclusory or dismissive rulings of the
district court.

2
A five-part study of jury service in the District of Columbia
by the National Center for State Courts identified that among the
reasons the general public avoids jury service is perceived unfairness
and biases in the justice system. See Richard Seltzer, The Vanishing
Juror: Why Are There Not Enough Available Jurors?, 20 J UST . S YS .
J. 203, 212 (1999). Various recommendations have been developed
to address this perception, including the elimination or curtailment of
peremptory strikes that in “the experience of most trial judges . . . at
a minimum, give[] the appearance that prospective jurors are being
peremptorily stricken on grounds of race, gender or both.” C OUNCIL
FOR C OURT E XCELLENCE : D ISTRICT OF C OLUMBIA J URY P ROJECT ,
J URIES FOR THE Y EAR 2000 AND B EYOND : P ROPOSALS TO IMPROVE
THE J URY S YSTEMS IN W ASHINGTON , D.C. 26 (1998).
 6

Since Batson, when the Supreme Court has encountered
cases where the trial judge failed to fulfill his or her duty, it has
not hesitated to examine the voir dire proceedings in painstaking
detail, inasmuch as a single instance of racial discrimination in
jury selection requires reversal of a conviction, see id. at 95–96.
An example of such detailed review is Snyder, where the trial
judge failed to make a finding on the record based on the
evidence presented regarding the prosecutor’s two explanations
for striking an African American juror, and consequently the
deference inherent in clear error review was replaced by what
was tantamount to de novo review. See 552 U.S. at 479, 482.3
This is reflected in the practice of circuit courts of appeals when
reviewing contentions that would normally be subject to clear
error review but for the fact that the district court made no
findings of fact. See, e.g., United States v. Microsoft Corp., 147
F.3d 935, 945 n.7 (D.C. Cir. 1998); see also United States v.
Smith, 640 F.3d 580, 596 (4th Cir. 2011); United States v.
McMath, 559 F.3d 657, 663 (7th Cir. 2009); Dennis v. Mitchell,
354 F.3d 511, 517 (6th Cir. 2003); Armienti v. United States,
234 F.3d 820, 822 (2d Cir. 2000); United States v. Vega, 221
F.3d 789, 795 (5th Cir. 2000). As to the first of two
explanations proffered, the Supreme Court reasoned in Snyder
that, in the absence of a specific finding, it could not “presume
that the trial judge credited the prosecutor’s assertion that [the
juror] was nervous.” Id. As to the second proffered
explanation, the Supreme Court concluded, quoting at length the

3
In adopting a clear error standard of review, the Supreme
Court in Snyder, 552 U.S. at 77, cited the plurality opinion in
Hernandez v. New York, 500 U.S. 352 (1991), in which concern was
expressed that a more searching review of findings made in a state trial
court would be incompatible with concepts of federalism. Id. at 369.
No federalism concern exists with respect this court’s review of the
district court’s Batson ruling.
 7

transcription of the trial court proceedings, that the prosecutor’s
“explanation given for the strike . . . is by itself unconvincing,”
id. at 478, and that “[t]he implausibility of this explanation is
reinforced by the prosecutor’s acceptance of white jurors who
disclosed conflicting [time] obligations that appear to have been
at least as serious as [those of the struck black juror],” id. at 483;
cf. Miller-El v. Cockrell, 537 U.S. 322 (2003) (on habeas
petition). Additionally, when confronted on habeas review with
a state prosecutorial policy to strike African American members
of the venire that resulted in a pattern of such strikes in Miller-
El v. Dretke, 545 U.S. 231, the Supreme Court held, upon a
searching record review, that the trial judge’s factual findings as
to the nonpretextual nature of the state’s race-neutral
explanations were wrong by clear and convincing evidence, id.
at 266. In a concurring opinion one Justice acknowledged
Justice Marshall’s concerns and the defects intrinsic to the
Batson analysis, see id. at 266–67 (Breyer, J., concurring), and
concluded that “a peremptory jury-selection system that permits
or encourages the use of stereotypes work[s] at cross-purposes”
with “the law’s antidiscrimination command,” id. at 271–72.

The Supreme Court’s post-Batson precedent has forewarned
lower courts that Batson objections are not to be lightly
dismissed. A one-size-fits-all approach by the trial judge —
summarily stating that the prosecutor’s explanations are credible
— risks reversal of a conviction on appeal. The Supreme Court
has held that the prosecutor’s response to an allegation of
racially motivated peremptory strikes “must [be] a ‘clear and
reasonably specific’ explanation of his ‘legitimate reasons’ for
exercising the challenges.” Batson, 476 U.S. at 98 n.20 (quoting
Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 258
(1981)). It would be remarkable, to say the least, to conclude
that the trial judge’s evaluation at step three of the Batson
analysis need not also be clear and reasonably specific.
 8

Even though “these determinations of credibility and
demeanor lie peculiarly within a trial judge’s province and . . .
in the absence of exceptional circumstances, [the Supreme
Court] would defer to [the trial court],” Snyder, 552 U.S. at 477
(second alteration in original) (internal citations and quotation
marks omitted), no deference is due to the trial judge’s Batson
ruling based on the evidence before it unless it explains on the
record why it credited the prosecutor’s race-neutral explanation
and rejected the defendant’s arguments that an individual strike
was racially motivated or that a series of strikes demonstrated a
pattern of racially motivated strikes. See id. at 479; cf. Miller-El
v. Cockrell, 537 U.S. at 341–43. After all, in Batson, and before
and after, the Supreme Court emphasized that purposeful racial
discrimination in jury selection, resulting in the denial of equal
protection, “harms not only the accused whose life or liberty
they are summoned to try,” but “extends beyond that inflicted on
the defendant and the excluded juror to touch the entire
community,” “undermin[ing] public confidence in the fairness
of our system of justice.” Batson, 476 U.S. at 87; see also
Miller-El v. Dretke, 545 U.S. at 237–38; Strauder v. West
Virginia, 100 U.S. 303, 309 (1880). The Court’s precedent
contemplates no less than that trial judges will give full
consideration to the evidence presented of racial bias, see
Snyder, 552 U.S. at 478, by, for example, comparing the
prosecutor’s behavior in striking, not striking, and questioning
like jurors of different races, looking for patterns or statistical
disparities, and examining whether any policy or practice of the
relevant prosecutor’s office implicates Batson concerns, see,
e.g., Miller-El v. Cockrell, 537 U.S. at 331–35.

Because the district court’s findings in the instant case
were conclusory, without sufficient explanation to permit
meaningful appellate review, the usual deferential review falls
away and the question is whether this court, upon review of the
record, finds by a preponderance of the evidence that the
 9

defendant has established purposeful discrimination by the
prosecutor. Although not characterized by the Supreme Court
as de novo review, the analysis of the court today, sifting struck-
juror by struck-juror through the transcription of the Batson
proceedings, much as the Supreme Court did for a single struck
juror in Snyder, reflects this reality. See Op. at 9–13. The
Supreme Court contemplated, inasmuch as a single Batson
violation requires reversal of a conviction, see, e.g., Snyder, 552
U.S. at 478, that the trial judge would provide a record that
reveals on an objection-by-objection basis how, upon
considering “all of the circumstances that bear upon the issue of
racial animosity,” id. (citing Miller-El v. Dretke, 545 U.S. at
239), the defense objections to the prosecutor’s strike
explanations were resolved. Otherwise, the Supreme Court’s
expectation of the constitutional protection institutionalized in
Batson, as well as the expectations for the prosecutor and trial
judge described in Justice Powell’s response to Justice
Marshall’s concerns, will have proven illusory. This explains
the painstaking review of the trial court record that the Supreme
Court has undertaken, for example, in Snyder, 552 U.S. at 478-
84, and Miller-El v. Dretke, 545 U.S. at 240–66, to underscore
that the third step of Batson cannot become a matter of rote or
one-size-fits-all analysis.

On the merits, appellants’ Batson challenges do not entitle
them to reversal of their convictions, even upon de novo review
of the record.4 A single example suffices. Defense counsel
challenged the striking of “Juror 5773” on the ground that the
prosecutor was applying a double standard in peremptorily
striking “Juror 5773,” an African American male, but not “Juror
6487,” a Caucasian male. Both were opposed to the death
penalty. The prosecutor in his Batson step two response stated

4
Appellants do not pursue on appeal their Batson challenges
based on gender. See Appellee’s Br. at 28 n.21.
 10

that “Juror 5773” gave equivocal answers about the death
penalty and his religious views thereon. Appellants maintain
that the record showed that the main concern of “Juror 5773”
was not religious but a concern of condemning the wrong man
to death. During the Batson colloquy, defense counsel had
argued that “Juror 5773” had “some pro-prosecution instincts
regarding the death penalty, but [was] generally thoughtful,” and
disagreed that “Juror 5773” “would oppose the death penalty on
religious grounds.” Instead of dealing with this factual
disagreement and making reasonably specific findings on the
record to which this court, as appropriate, could defer, the
district court ruled as to all defense challenges that it credited
the prosecutor’s explanation of non-racial reasons for all of the
peremptory strikes of African American members of the venire.

A review of the transcription of the Batson proceedings
supports the plausibility of the prosecutor’s race-neutral
explanations for its peremptory challenge to “Juror 5773,” even
upon de novo review. The relevant answers provided by the two
veniremen in their questionnaires reveals a salient difference.
The Caucasian venireman followed his expression of opposition
to the death penalty with the statement: “I would try to abide by
the Court’s instruction, not my personal belief.” By contrast, the
African American venireman indicated his concerns about the
death penalty would cause him to have concerns about being
fair, explaining he had “so many questions about the death
penalty and [his] belief in it.” Cognizant that the burden of
persuasion to prove the existence of purposeful discrimination
in peremptory strikes ultimately rests with the defendant,
Johnson, 545 U.S. at 170–71, it is apparent that the prosecutor’s
proffered explanation that the difference in the veniremen’s
answers and not a difference in their race motivated their
disparate treatment. For essentially the reasons stated by the
court with respect to the remaining strikes, see Op. at 9–13, each
likewise survives de novo review of the record.
 11

In view of the equal protection concerns identified earlier,
a final observation bears mentioning. As a matter of public
record, the jury venire in the District of Columbia in 2011 is
unlikely, as it was in 2002 when jury selection began in the
instant case, to have a majority of African American venire
members, no matter how many are peremptorily struck by the
prosecutor. The U.S. Census of 2000 showed that African
Americans were 60.0% of the District of Columbia’s population,
with Caucasians making up 30.8%; Hispanics or Latinos were
7.9%. The venire in the instant case was approximately three-
quarters African American, and the twelve-member jury that
was selected for trial was composed of nine African American
jurors and three Caucasian jurors. The demographics have
changed. The U.S. Census of 2010 showed that African
Americans comprise 50.7% of the District of Columbia’s
population to Caucasian’s 38.5%, with Hispanics or Latinos
comprising 9.1%. Likely then,5 in a trial of an African
American defendant, a prosecutor will no longer be able to pose
the rhetorical question in the government’s brief, contrary to the
purposes of Batson and its progeny: Why, as a matter of trial
tactics, would the government discriminate in exercising
peremptory challenges when the venire and the petit jury would
be overwhelming African American? Appellee’s Br. at 68; see
also May 7, 2002 PM Trial Tr. at 25, 32. Courts in the District
of Columbia likewise will likely be unable, as a factual matter,
to base acceptance of a prosecutor’s race-neutral explanations
for strikes at Batson’s third step in part on the generality, as in
2002, that a predominantly African American jury will
nonetheless be seated. To the extent distrust of the justice

5
Individuals are called for jury service in the District of
Columbia based on lists of registered voters, licensed drivers, and
those having nondriver identification cards from the D.C. Department
of Motor Vehicles. See Seltzer, supra note 2, at 204.
 12

system among minorities and women persists, based in part on
fear that they will be discriminated against during jury service,
see supra note 2, accepting the prosecution’s approach, as
reflected in the rhetorical question, suggests in view of the
changing demographics in the District of Columbia at least two
concerns: First, a growing risk that an overzealous prosecutor
could be successful in turning a jury toward conviction based on
racially motivated or otherwise discriminatory peremptory
strikes. Second, such activity by prosecutors would result in
greater mistrust of the justice system and reduced participation
in jury service by the affected populations.