United States v. Brianna Meadows

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 23, 2017 Decided August 18, 2017

No. 15-3045

UNITED STATES OF AMERICA,
APPELLEE

v.

BRIANNA MEADOWS,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 1:14-cr-00073-1)

Charles B. Wayne, appointed by the court, argued the cause
for appellant. With him on the briefs was Jerald R. Hess,
appointed by the court.

Katherine M. Kelly, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Elizabeth
Trosman and Suzanne G. Curt, Assistant U.S. Attorneys.

Before: GARLAND, Chief Judge, ROGERS, Circuit Judge,
and WILLIAMS, Senior Circuit Judge.
 2

Opinion for the Court filed by Chief Judge GARLAND.

Opinion concurring in part and concurring in the judgment
filed by Circuit Judge ROGERS.

GARLAND, Chief Judge: Brianna Meadows was convicted
of fraudulently obtaining unemployment benefits from the
District of Columbia Department of Employment Services. On
appeal, she contends that the district court erred in denying her
pre-trial motion to dismiss the indictment for prosecutorial
vindictiveness, and in permitting the government to make
improper statements at trial. For the reasons set forth below, we
affirm the judgment of the district court.

I

In January 2008, Brianna Meadows lost her job. On April
27, 2009, with the assistance of a staffing agency, Meadows
began working in a temporary, full-time position as an
administrative assistant at the U.S. Food and Drug
Administration (FDA). She held that position until September
2010. Although Meadows was working full time, she submitted
unemployment benefits claims to the Department of
Employment Services by computer, sometimes from her
workspace at the FDA.

The Department establishes a claimant’s eligibility to
receive unemployment benefits through a six-question weekly
claim form, which claimants may submit online. As relevant
here, the second question on the form requires claimants to
certify whether they worked during the week claimed and, if so,
to report their earnings. While performing work does not
necessarily disqualify a claimant from receiving unemployment
benefits altogether, a claimant whose salary exceeds a certain
threshold is ineligible. In this case, Meadows’ weekly salary of
 3

$692.68 disqualified her from receiving unemployment benefits.
Nonetheless, based on the information she submitted to the
Department between April 2009 and May 2010, Meadows
received a total of $14,173 in benefits.

In February 2011, following an audit, the Department
notified Meadows that it had uncovered overpayments that may
have stemmed from her failure to accurately report her earnings.
In March, the Department mailed Meadows a formal notice of
its determination that she had received overpayments. Although
the notice made clear that criminal sanctions could result from
a failure to repay, Meadows did not make any voluntary
repayments to the Department between March 2011 and August
2014 (except for a possible attempted payment of $150).

The foregoing conduct came to the attention of the United
States Attorney for the District of Columbia as a result of a
separate investigation called “Concrete Playground” that began
in March 2011. That investigation targeted corrections officers
who were smuggling contraband to prisoners in the D.C. Jail.
The government alleged that Meadows herself brought
contraband to Pedro Petrovic, an inmate and her boyfriend at the
time, who had been convicted of first-degree murder and other
charges. In the investigation leading up to Petrovic’s
conviction, Meadows had been indicted on charges of
obstruction of justice and accessory after the fact, but those
charges were eventually dropped. In the jail contraband
investigation, agents obtained evidence that Meadows gained
access to the D.C. Jail by posing as an employee of the Public
Defender Service. That led them to make further inquiries about
her, and they then discovered what they believed to be her
scheme to defraud the Department of Employment Services by
unlawfully claiming unemployment benefits.
 4

Meadows declined to speak with investigators about the jail
contraband case. Continuing to seek her cooperation, in June
2012 the U.S. Attorney’s Office served her with both a grand
jury subpoena and a target letter. The following year, the
government extended two plea offers to Meadows that combined
unemployment benefits fraud charges with charges stemming
from her alleged participation in the jail contraband scheme.
Neither was conditioned on cooperation in the prosecution of
anyone else. The first plea offer included one felony and one
misdemeanor charge. The second offered one count of
misdemeanor fraud for the unemployment benefits fraud scheme
and another misdemeanor count for providing contraband in
prison. Meadows rejected both offers.

On March 27, 2014, a grand jury indicted Meadows on six
felony counts: four counts of wire fraud, in violation of 18
U.S.C. § 1343; one count of theft of federal government
property, in violation of 18 U.S.C. § 641; and one count of first-
degree theft, in violation of D.C. Code §§ 22-3211, 22-3212(a).
Before trial, Meadows filed separate motions to dismiss the
federal theft count (Count 5) on the ground that the funds at
issue were not federal, and to dismiss the indictment as a whole
on the ground that she was being prosecuted vindictively. The
district court denied the motion to dismiss Count 5 on August
12, 2014. Six days later, Meadows made her first (material)
voluntary repayment to the Department of Employment
Services, in the amount of $500. On September 23, the court
denied the motion to dismiss the indictment for prosecutorial
vindictiveness. Thereafter, as the trial approached, Meadows
made two more repayments: $1,500 in October and $5,953 in
November 2014. By the time the trial began on December 17,
2014, the government had recouped the full $14,173, as it had
already recouped the rest by withholding Meadows’ tax refunds.
 5

At trial, the prosecution’s theory was that Meadows
knowingly filed false unemployment claim forms online with
the Department of Employment Services and received $14,173
in unwarranted payments while working full time. The
government presented documentary evidence, including
Meadows’ timesheets from her job at FDA, print-outs of the
weekly claim forms she submitted to the Department, and bank
records detailing the benefits she received. It also called seven
witnesses.

The defense evidence consisted primarily of Meadows’
testimony. She acknowledged that, during the relevant period,
she worked full time in a temporary position at the FDA and
earned full-time wages. She further acknowledged that she
began filing weekly unemployment claims online the same week
she started her full-time job at FDA. Meadows testified that, at
the time she applied for and received unemployment benefits,
she believed she could work full time and earn full-time wages,
yet still submit claims for unemployment benefits. Meadows
said she thought she was eligible to do so because she was
working in a temporary position at FDA and was therefore still
actively seeking a permanent, full-time job. That, she said,
explained why she answered “no” to a question on the weekly
Department of Employment Services claim form that asked:
“Did you return to work full-time?” Trial Tr. 89-91 (Dec. 18,
2014).

On cross-examination, Meadows acknowledged that she
applied for and received $14,173 in unemployment benefits.
She was also asked about Question 2 on each weekly claim
form, which stated: “Did you perform work during the week
claimed? If yes, indicate gross earnings amount in box at right.”
Meadows said she answered “Yes” to that question and entered
the wages that she earned on each of the 49 weekly forms she
submitted to the Department. Id. at 90, 107. She was then
 6

presented with documentary evidence showing that none of the
49 forms contained those answers in response to Question 2.
Meadows’ response was that a computer glitch must have
caused the same errors to appear on each of the 49 separate
forms she submitted online.

On December 22, 2014, a jury found Meadows guilty on all
six counts. At the subsequent sentencing hearing, the district
court found that Meadows had perjured herself with respect to
the purported computer “glitch,” willfully giving “false
testimony concerning her completion of the 49 claim forms in
this case.” Sentencing Tr. 14 (July 16, 2015). As a
consequence, the court increased Meadows’ U.S. Sentencing
Guidelines level by two and sentenced her to 36 months of
probation, with the condition that she serve 120 days in jail on
weekends. Id.

On appeal, Meadows raises claims of prosecutorial
vindictiveness and prosecutorial misconduct, to which we now
turn.

II

We begin with Meadows’ contention that the district court
erred in denying her pre-trial motion to dismiss the indictment
for prosecutorial vindictiveness. In her view, the government
obtained the six-count felony indictment in retaliation for her
“unexpected and burdensome assertions of [her] legal rights.”
Meadows Br. 17-18 (quoting United States v. Meyer, 810 F.2d
1242, 1247 (D.C. Cir. 1987)).
 7

A

In United States v. Safavian, we set out the analysis this
Circuit follows in evaluating such a claim of prosecutorial
vindictiveness:

[T]he doctrine [of prosecutorial vindictiveness]
precludes action by a prosecutor that is designed to
penalize a defendant for invoking any legally protected
right available to a defendant during a criminal
prosecution. A defendant may prove prosecutorial
vindictiveness by submitting either (i) evidence of the
prosecutor’s actual vindictiveness or (ii) evidence
sufficient to establish a realistic likelihood of
vindictiveness, thereby raising a presumption the
Government must rebut with objective evidence
justifying its action. If the Government can produce
objective evidence that its motive in prosecuting the
defendant was not vindictive, then the defendant’s only
hope is to prove that the justification is pretextual and
that actual vindictiveness has occurred.

649 F.3d 688, 692 (D.C. Cir. 2011) (per curiam) (citations
omitted); see United States v. Gary, 291 F.3d 30, 34 (D.C. Cir.
2002); Maddox v. Elzie, 238 F.3d 437, 446 (D.C. Cir. 2001);
Meyer, 810 F.2d at 1245.

“To prove actual vindictiveness requires objective evidence
that the prosecutor’s actions were designed to punish a
defendant for asserting his legal rights. Such a showing is
normally exceedingly difficult to make.” Gary, 291 F.3d at 34
(emphasis added) (quoting Maddox, 238 F.3d at 446). “To
invoke the presumption of vindictiveness, we must find that a
reasonable likelihood of vindictiveness exists -- that is, that the
second indictment was ‘more likely than not attributable to the
 8

vindictiveness on the part of’ the Government.” Id. (emphasis
added) (quoting Alabama v. Smith, 490 U.S. 794, 801 (1989)).
“[O]ur concerns over alleged vindictiveness do not relate to
whether a prosecutor has acted maliciously or in bad faith, but
whether a prosecutor’s actions are designed to punish a
defendant for asserting her legal rights.” Id. at 35.

Where the defendant provides evidence sufficient to support
a presumption of vindictiveness, the burden shifts to the
government to produce “objective evidence” that its motivation
in charging the defendant was lawful. Safavian, 649 F.3d at
694. That burden is “admittedly minimal -- any objective
evidence justifying the prosecutor’s actions will suffice.” Id. If
the government meets this burden, the defendant cannot prevail
unless she proves that the government’s justification was
pretextual. Id. at 692.

We review a district court’s findings regarding
vindictiveness only for clear error. See Gary, 291 F.3d at 34;
Meyer, 810 F.2d at 1244-45.

B

The district court concluded that the evidence did not
support a claim of actual vindictiveness in this case. “[T]here is
nothing on the face of the record,” the court held, “to show that
defendant’s prosecution was initiated to punish her for declining
to cooperate with the government or for exercising her
constitutional right to go to trial.” United States v. Meadows,
Crim. No. 14-0073, slip op. at 7 (D.D.C. Sept. 23, 2014).
Meadows does not contest this point on appeal.

Instead, Meadows proceeds on a theory of presumptive
vindictiveness, contending that the government obtained the six-
count felony indictment in retaliation for her “unexpected and
 9

burdensome assertions of [her] legal rights.” Meadows Br. 17-
18 (quoting Meyer, 810 F.2d at 1247). The indictment was
brought, Meadows’ brief claims, because she “was a thorn in the
government’s side” in the following respects:

She repeatedly refused to cooperate in the homicide
investigation of her boyfriend and, according to the
government, hampered that investigation and
obstructed justice;

She -- according to the government -- bribed a
corrections officer in connection with the Concrete
Playground investigation and, when confronted,
refused to cooperate in that investigation; and

She allegedly smuggled contraband to her boyfriend in
the D.C. Jail while posing as an investigator for a
Public Defender’s Office and refused to cooperate in
his prosecution for that offense.

Meadows Br. 22. After she refused to cooperate, Meadows’
brief continues, the government “made two plea offers that [it]
unquestionably believed to be more than generous. The first
required a plea to a felony and a misdemeanor; the second
required only a plea to two misdemeanors. Neither required
cooperation in the prosecution of anyone else. But Meadows
stuck to her constitutional guns and rejected the offers.” Id. at
23 (citation omitted). This “contentious history,” the brief
maintains, “goes a long way to explain why [the prosecutor]
charged her with six felonies for conduct that,” the defense
claims, “is rarely prosecuted and routinely addressed
administratively.” Id. at 23-24.

The district court concluded that Meadows failed to present
sufficient facts to raise a “realistic likelihood,” Safavian, 649
 10

F.3d at 692, of vindictiveness in this case. Meadows, slip op. at
7, 9-13. That conclusion was not clearly erroneous. As an
initial matter, the Supreme Court has “expressed doubt that in
the run-of-the-mill pretrial situation, the prosecutor would have
any reason to engage in vindictive behavior; the Court noted that
defendants routinely assert procedural rights prior to trial and
that prosecutors are unlikely to respond vindictively to this
everyday practice.” Meyer, 810 F.2d at 1247 (citing United
States v. Goodwin, 457 U.S. 368, 381 (1982)). Nothing in the
record suggests that we are “confront[ing] something other than
routine invocations of procedural rights” in this case. Meyer,
810 F.2d at 1247. To be sure, two plea offers were made and
rejected. But, as the Supreme Court held in Bordenkircher v.
Hayes, “in the ‘give-and-take’ of plea bargaining, there is no . . .
element of punishment or retaliation so long as the accused is
free to accept or reject the prosecution’s offer.” 434 U.S. 357,
363 (1978); see Goodwin, 457 U.S. at 378.1

Moreover, “so long as the prosecutor has probable cause to
believe that the accused committed an offense defined by
statute, the decision whether or not to prosecute, and what
charge to file or bring before a grand jury, generally rests
entirely in his discretion.” Bordenkircher, 434 U.S. at 364.
Meadows does not dispute that there was probable cause to
support the indictment in this case. Accordingly, absent unusual
circumstances, the government had “every right” to prosecute
Meadows for unemployment benefits fraud, regardless of

1
See also Goodwin, 457 U.S. at 382-83 (“This Court in
Bordenkircher made clear that the mere fact that a defendant refuses
to plead guilty and forces the government to prove its case is
insufficient to warrant a presumption that subsequent changes in the
charging decision are unjustified.”).
 11

whether it could have prosecuted her for the jail-related
offenses. Gary, 291 F.3d at 34.2

As the district court held in this case, “there must be
something more for a presumption to arise.” Meadows, slip op.
at 10 (citing Meyer, 810 F.2d at 1246). Meadows claims that
there is “something more” here: she claims that she was
subjected to “disparate treatment.” Meadows Br. 18. It is
certainly true that “[s]electivity in the enforcement of criminal
laws is . . . subject to constitutional constraints,” and that, “[i]n
particular, the decision to prosecute may not be deliberately
based upon an unjustifiable standard such as race, religion, or
other arbitrary classification.” Wayte v. United States, 470 U.S.
598, 607 (1985) (quoting Bordenkircher, 434 U.S. at 364). And
“disparate treatment” among similarly situated defendants can
“give rise to a suspicion that the government discriminated
among the defendants.” Meyer, 810 F.2d at 1246.

But Meadows makes no claim of anything like disparate
treatment on the basis of race or religion. Instead, her claim is
that she was charged with a crime, unemployment benefits
fraud, that “is rarely prosecuted and routinely addressed
administratively.” Meadows Br. 24. While the district court
was “troubled by the general lack of similar prosecutions,”
Meadows, slip op. at 13, it certainly did not clearly err in
concluding that such disparate treatment was insufficient to
warrant a presumption of vindictiveness.

2
In 1931, the government famously prosecuted Al Capone for
income tax evasion rather than far more serious crimes that it might
have had difficulty proving. See LAURENCE BERGREEN, CAPONE: THE
MAN AND THE ERA (1994); see also THE UNTOUCHABLES (Paramount
Pictures 1987). At oral argument, defense counsel agreed that such a
prosecution would not be subject to dismissal as vindictive. Oral Arg.
Tr. 12-13.
 12

To begin with, we agree with the district court that the
question in this case is nothing like that in United States v.
Meyer, the case that Meadows claims is most analogous. In
holding that the defendants presented sufficient evidence to
support a presumption of vindictiveness in Meyer, the court
emphasized that its holding was “limited to the precise
circumstances of th[e] case; in other cases, with different facts,
the presumption may not lie.” 810 F.2d at 1248. And the facts
in Meyer were unusual. The case began with the arrests of
approximately 200 political protesters outside the White House.
They were all charged with “demonstrating without a permit”
and presented with two options: plead guilty and pay a $50 fine,
or proceed to trial and risk a $500 penalty and six months in
prison. The government persuaded most -- but not all -- to plead
guilty and pay the $50 fine. When some of the demonstrators
opted to proceed to trial, however, the government brought an
additional charge solely against those who insisted on exercising
their trial rights. Id. at 1243-44.

The first thing to note about Meyer is that there the question
presented was whether the district court clearly erred in finding
prosecutorial vindictiveness. Id. at 1245. Here, the question is
whether the court clearly erred in not so finding. Thus, in this
case the deference arrow points in the opposite direction.

In Meyer, moreover, the causal link between the
defendants’ refusal to plead guilty and the prosecutor’s decision
to “up the ante” by adding an additional charge was sufficient to
support a “realistic likelihood of vindictiveness.” Id. at 1246.
In this case, by contrast, the claim of a causal link between
Meadows’ felony indictment and her allegedly protected
conduct is undermined by several facts. Neither of the two
preceding plea offers were conditioned on Meadows’
cooperation with the government; indeed, the government had
obtained convictions in the jail contraband case before Meadows
 13

rejected those offers. Meadows, slip op. at 12. And while in
Meyer the government had a “strong incentive to try to keep
clear of th[e] courtroom morass” that would have occurred at a
trial of dozens of protesters, 810 F.2d at 1247, there was no
similar incentive here.

In Meyer there was also no doubt that all of the defendants
were similarly situated. They all “participated in the same
demonstration and conducted themselves in the same manner.”
Id. at 1246. Yet, only those “who chose to go to trial faced two
charges, whereas the other defendants confronted only one.” Id.
Meadows’ claim of disparate treatment is substantially weaker.
She initially asked the district court to consider a list of 117
unemployment fraud cases that, she told the court, arose during
the three years prior to her own indictment, involved
overpayments of similar amounts of money, and yet did not
result in criminal charges. See Def.’s Ex. 1 (A. 116-23). The
district court found, however, that “only about 41 of the 117
cases . . . were actually referred by [the Department of
Employment Services] for prosecution,” and hence only those
41 were even relevant for consideration as comparators of
disparate treatment by the prosecutors. Meadows, slip op. at 11
n.5. And the court further noted that there was no evidence at
all regarding the circumstances of those 41 cases; hence, it could
not determine whether those defendants were similarly situated
to Meadows. Id. at 11. (Meadows herself acknowledged that at
least four cases involving unemployment fraud were in fact
prosecuted within 10 years preceding her indictment. See id. at
11-12.) We thus find no clear error in the court’s rejection of
Meadows’ claim that her allegedly “disparate treatment” gave
rise to a presumption of vindictiveness.

Finally, even if a presumption of vindictiveness were
warranted, the district court concluded that the government’s
objective evidence justifying its charging decision was sufficient
 14

to overcome such a presumption. Id. at 14-16. Again, we find
nothing like clear error. The district court reasonably found that
the government’s evidence regarding the severity of Meadows’
fraudulent conduct -- which “continued for approximately a
year, involved two separate false filing schemes, and resulted in
approximately 49 false claims,” id. at 15 -- was sufficient to
satisfy this court’s “admittedly minimal” requirement of “any
objective evidence,” Safavian, 649 F.3d at 694. The court also
reasonably relied on the government’s belief that Meadows
“participated in the contraband scheme -- another act of
dishonesty -- at the same time that she was allegedly engaged in
unemployment fraud.” Meadows, slip op. at 15.

Accordingly, assuming arguendo that a presumption of
vindictiveness were warranted, the district court rightly
concluded that the government met its burden of producing
objective evidence justifying the prosecution’s charging
decisions. Under those circumstances, “the defendant’s only
[remaining] hope [was] to prove that the justification [was] pre-
textual and that actual vindictiveness ha[d] occurred.” Safavian,
649 F.3d at 692 (citation omitted). Because Meadows offered
no such evidence that the court had not already reasonably
rejected, we affirm the denial of her motion to dismiss the
indictment.

III

We turn next to Meadows’ contention that two alleged
instances of prosecutorial misconduct prejudiced the outcome of
her trial. One was the prosecutor’s references to the district
court’s denial of Meadows’ motion to dismiss the indictment.
The other was the prosecutor’s reference to the probability that
the “computer glitch” about which Meadows speculated could
have occurred.
 15

A

Over the government’s objection, the district court
permitted Meadows to introduce evidence showing that, by the
time the trial began in December 2014, the Department of
Employment Services had already recouped the full $14,173 it
had overpaid her. Although the district court deemed the
relevance of this evidence “marginal,” the court admitted it,
subject to a jury instruction that repayment was not a defense.
Trial Tr. 70 (Dec. 18, 2014). But the district court made clear --
both before Meadows took the stand and again in two bench
conferences during her testimony -- that on cross-examination
“[t]he door is going to be open” to questions from the
government about the “chronology” of events. Id. at 70, 72; see
also id. at 123-35, 131. The questions the court expected the
government to ask, it said, would be aimed at showing that
Meadows “wouldn’t have repaid [the government] but for the
charge,” id. at 75, and “didn’t write a check until after there was
a ruling” denying her motion to dismiss, id. at 70-71.

On cross-examination, the prosecutor did just what the
district court predicted. He confronted Meadows with the fact
that, between February 2011 when she first became aware of the
overpayments, and August 2014 when the district court denied
her motion to dismiss Count 5 of the indictment, she did not
make voluntary repayments. Pressing the point, the prosecutor
asked, and the defense counsel objected, as follows:

Q. And, in fact, . . . in August of 2014, you, through
your lawyer, filed a motion to dismiss this case, isn’t
that right?
A. Yes.
Q. And the judge denied that motion, isn’t that right?
A. Yes.
 16

Q. And, in fact, there were two such motions, is that
correct?
A. I don’t know.
Q. One had to do with Count 5?
[DEFENSE COUNSEL]: Objection.
THE COURT: Ye[s], let’s not talk about what it had
to do with. That’s all legal matters.

Id. at 132. The prosecutor made three additional references to
the motion during cross-examination, each aimed at illuminating
the same point: that Meadows did not make an effort to repay
the government until the district court declined to dismiss Count
5. See id. at 132-33, 134, 146.

Beyond the above-quoted objection to whether one of the
motions involved Count 5, defense counsel did not
contemporaneously object to any of these lines of questioning.
Following Meadows’ testimony, however, her counsel requested
a jury instruction to address the prosecutor’s references to the
denial of the dismissal motion, arguing that, in “add[ing] in
[that] the court denied it,” the prosecutor may have created “the
possibility that [the denied motion] had something to do with
guilt or innocence.” Id. at 160-61. In response to this request,
the judge instructed the jury that the denied motion “related to
a legal question” and her ruling “had nothing to do with the guilt
or innocence of Ms. Meadows or the merits of the case; that is
the matter that is being submitted to you.” Id. at 164. The judge
further instructed the jury to “draw no inferences one way or the
other with respect to the questions that you have to consider that
I denied a motion to dismiss on some other legal question.” Id.
at 165.

During closing rebuttal argument, the prosecutor referred to
the denied motion twice more, including in summing up the
 17

government’s position on the repayment issue. Trial Tr. 91, 95
(Dec. 22, 2014). The prosecutor stated:

The bigger point with regards to all of this is that these
final payments, August, October, November, when she
is actually trying to make repayment, comes after the
Judge . . . refused to dismiss the case.

That’s the context in which she makes those payments,
no[t] for some year-long effort to try to do right or do
good or make repayment. It’s a last ditch effort to try
to make [her] look good in front of you all, the ladies
and gentlemen of this jury.

Id. at 95. Defense counsel did not object; nor did the district
court intervene. Echoing both its opening and mid-trial
instructions to the jury, however, the court restated in its final
instructions that the jury should “not take anything I may have
said or done as indicating how I think you should decide this
case.” Id. at 103.

On appeal, Meadows contends that, by referring to the
district court’s decision to deny her motion to dismiss, the
prosecutor left the jury with the incurable impression that “the
judge believed that Meadows was guilty, or at a minimum,
believed the government’s version of events.” Meadows Br. 31.
That was not the nature of the objection defense counsel made
during Meadows’ testimony, however. There, the sole
contemporaneous objection (as set out above) was to a question
about the content of the motion to dismiss. Trial Tr. 132 (Dec.
18, 2014). The district court sustained that objection, and it is
not at issue on appeal.

Because Meadows did not contemporaneously object to the
line of questions, her one objection is insufficient to preserve her
 18

claim on appeal “that the entire line of questioning was
improper.” United States v. McGill, 815 F.3d 846, 876-77 (D.C.
Cir. 2016) (per curiam) (internal quotations marks omitted).
Accordingly, our review is for plain error only. See FED. R.
CRIM. P. 52(b); United States v. Morton, 391 F.3d 274, 276-77
(D.C. Cir. 2004) (holding that, when “an appellant failed to raise
a contemporaneous objection at trial,” a defendant “must
demonstrate that the trial court committed [] plain error”).
Under that standard, “there must be (1) error, (2) that is plain,
and (3) that affects substantial rights. If all three conditions are
met, an appellate court may then exercise its discretion to notice
a forfeited error, but only if (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.”
Johnson v. United States, 520 U.S. 461, 467 (1997) (citations
and alterations omitted); see FED. R. CRIM. P. 52(b). In most
cases, to affect the defendant’s substantial rights, “the error must
have been prejudicial: It must have affected the outcome of the
district court proceedings.” United States v. Olano, 507 U.S.
725, 734 (1993). Under the plain-error standard, it “is the
defendant rather than the Government who bears the burden of
persuasion with respect to prejudice.” Id.

For purposes of this discussion, we will assume that the
government’s references to the denial of the motion to dismiss
constituted error. There is, however, reason to doubt such an
assumption. The court warned Meadows that her effort to
portray herself as making good-faith repayment would open the
door to cross-examination intended to show that she “didn’t
write a check until after there was a ruling . . . in this case.”
Trial Tr. 71 (Dec. 18, 2014). Meadows proceeded nonetheless,
and in so doing “opened the door” for questions designed “to
prevent the jury from being misled.” United States v. Powell,
334 F.3d 42, 48 (D.C. Cir. 2003); see United States v. Fonseca,
435 F.3d 369, 375 (D.C. Cir. 2006); Griffin v. Washington
Convention Ctr., 142 F.3d 1308, 1312 (D.C. Cir. 1998).
 19

But even if the references to the denied motion to dismiss
were erroneous, any error here was not “plain.” For an error to
be “plain,” it must be “clear” or “obvious.” Olano, 507 U.S. at
734. That requires either “controlling precedent on the issue or
some other absolutely clear legal norm.” United States v.
Williams, 773 F.3d 98, 105 (D.C. Cir. 2014) (citation omitted);
see United States v. Nwoye, 663 F.3d 460, 466 (D.C. Cir. 2011);
In re Sealed Case, 573 F.3d 844, 851 (D.C. Cir. 2009). And no
such precedent or legal norm bars prosecutors from eliciting
testimony about a dismissal motion when a defendant opens the
door in the manner that Meadows did.

Nor did the references to the denied motion prejudice
Meadows because any prejudice was extinguished by the district
court’s instructions. As noted above, Meadows’ contention is
that those references left the jury with the impression that “the
judge believed that Meadows was guilty, or at a minimum,
believed the government’s version of events.” Meadows Br. 31.
But the court expressly instructed the jury, immediately after the
prosecutor’s references, that the denied motion “related to a
legal question” and “had nothing to do with the guilt or
innocence of Ms. Meadows or the merits of the case; that is the
matter that is being submitted to you.” Trial Tr. 164 (Dec. 18,
2014). And in both its mid-trial and final instructions, the
district court further warned the jury against drawing any
inferences from its actions. See id. at 164-65 (“[Y]ou should
draw no inferences one way or the other with respect to the
questions that you have to consider that I denied a motion to
dismiss on some other legal question.”); Trial Tr. 103 (Dec. 22,
2014) (“You may not take anything I may have said or done as
indicating how I think you should decide this case.”). This court
has consistently reaffirmed the principle that “[t]he jury is
presumed to follow the instructions” it is given. United States
v. Hall, 610 F.3d 727, 742 (D.C. Cir. 2010) (citing Greer v.
 20

Miller, 483 U.S. 756, 766 n.8 (1987)). And there is no reason to
think otherwise in this case.

B

Meadows’ second misconduct claim is that the prosecutor
made a “probability” analysis during closing rebuttal that
prejudiced the outcome of her trial. See Meadows Br. 33-46.
Meadows’ defense to the charge of fraudulent payment was that
she did, in fact, report both her full-time FDA job and her
earnings on each of the weekly claim forms she submitted to the
Department of Employment Services. Specifically, Meadows
testified that, in response to Question 2 on each of the 49 weekly
forms she submitted online, she answered “Yes” to whether she
had “perform[ed] work” during the preceding week and entered
“the weekly wages that [she] earned.” Trial Tr. 90, 107 (Dec.
18, 2014). On cross-examination, she was confronted with
documents showing that the reports the government received did
not contain those answers. Meadows responded that a computer
glitch must have caused the same error to appear on each of the
49 separate forms she submitted. She presented no evidence to
corroborate that claim.

In his closing rebuttal argument, the prosecutor attacked the
plausibility of Meadows’ suggestion that there must have been
a computer glitch. To that end, the prosecutor asked the jury:
“What are the odds that this magical computer glitch could
affect Ms. Meadows, and Ms. Meadows alone, 49 weeks in a
row, given what you’ve heard in this case?” Trial Tr. 79 (Dec.
22, 2014). After walking through the evidence and saying that
the likelihood of such an error was “[o]ne in nearly 60 million,”
the prosecutor added that he was “speak[ing] broadly” and that
“the odds are astronomical that this could ever have taken
place.” Id. at 81. “[I]t is in the extreme, it is absurd, because
it’s just not reality.” Id.
 21

On appeal, Meadows objects to the prosecutor’s discussion
of “probability,” Meadows Br. 19, in his closing rebuttal. She
concedes that she did not object to the discussion in the district
court. Accordingly, our review is again for plain error only. See
Meadows Br. 34 & n.10 (“The defense made no objection to this
argument, and this Court therefore reviews for plain error.”); see
also FED. R. CRIM. P. 52(b).3

Meadows’ principal contention is that the prosecutor’s “one
in nearly 60 million” figure was not supported by trial evidence.
In context, however, that figure was nothing more than a
rhetorical flourish (“astronomical!”, “absurd!”) to the
prosecutor’s argument that it was unlikely that a computer glitch
-- rather than the defendant’s actions -- could explain the
responses that appeared on Meadows’ weekly claim forms.
Meadows has not shown that reasonable jurors would have
understood the prosecutor’s statement otherwise, and thus has
not shown that it “affected the outcome of the district court
proceedings,” Olano, 507 U.S. at 734, or that it “seriously
affect[ed] the fairness, integrity, or public reputation of judicial
proceedings,” id. at 736 (citation omitted).

Meadows also contends, more broadly, that “statistical
arguments should most likely never be used to argue a
defendant’s guilt in a criminal trial, and if such arguments are
going to be used, they need to be presented through a properly
qualified expert.” Meadows Reply Br. 14. Because the
prosecutor’s rhetoric did not amount to a “statistical argument,”
those contentions fail. In any event, there is again no
“controlling precedent . . . or . . . other absolutely clear legal
norm” on either issue, Williams, 773 F.3d at 105. See Meadows

3
Because our review is for plain error only, the balance of this
opinion is not intended to suggest that the prosecutor’s argument was
proper. Rather, we hold only that it did not constitute plain error.
 22

Reply Br. 14 (stating that the question of whether a statistical
argument is permissible is “of first impression in this Circuit”);
Oral Arg. Tr. 24-25 (acknowledging that whether such an
argument must be offered through expert testimony is “a case of
first impression”).

Finally, Meadows contends that the prosecutor’s “one in
nearly 60 million” statement “redefine[d] ‘proof beyond a
reasonable doubt’” and therefore diluted the government’s
burden of proof. Meadows Br. 42. As defense counsel
conceded at oral argument, however, the prosecutor never
related his rhetoric to the proof-beyond-a-reasonable-doubt
standard, as the prosecutor expressly did in the only case upon
which Meadows relies. Oral Arg. Tr. 22; see Commonwealth
v. Ferreira, 955 N.E.2d 898, 904 (Mass. 2011) (holding that the
prosecutor erred in “equating proof beyond a reasonable doubt
with a numerical percentage of the probability of guilt”).

Although we find no plain error in this case, we do caution
the government that there is a considerable risk of error -- and
prejudice -- when a prosecutor attempts to offer a true statistical
analysis, unsupported by expert testimony, in closing argument.
Moreover, if a defense counsel contemporaneously objects, then
it is the government that will bear the burden of proving that the
error did not prejudice the defendant. Olano, 507 U.S. at 734.

IV

For the foregoing reasons, the judgment of the district court
is affirmed.

So ordered.
 ROGERS, Circuit Judge, concurring in part and concurring
in the judgment. Meadows has challenged three rulings by the
district court: denial of her motion to dismiss the indictment as
the product of vindictive prosecution; allowing the government,
during Meadows’ cross examination, to refer to that denial; and
allowing the government to make an improper closing argument
based on mathematical probability. I concur in the court’s
disposition of her second challenge. Op. 14-20. As to her first
and third challenges, I concur in part. For the first challenge, the
court need only decide, assuming a presumption of
vindictiveness, whether the government has satisfied its
“minimal” burden to offer “any objective evidence justifying the
prosecutor’s actions,” United States v. Safavian, 649 F.3d 688,
694 (D.C. Cir. 2011); it has, and Meadows does not contend she
provided any evidence of “actual vindictiveness,” see United
States v. Meyer, 810 F.2d 1242, 1245 (D.C. Cir. 1987). See Op.
13-14. My analysis of her third challenge differs from that of
the court. Given well settled law, the prosecutor’s probability
theory first presented in rebuttal closing argument to the jury
cannot be excused as merely a “rhetorical flourish.” Op. 21. In
the absence of evidence to support the theory as presented, the
error was “plain.” United States v. Olano, 507 U.S. 725, 734
(1993). I nevertheless concur in the judgment because Meadows
fails to show the requisite prejudice to obtain reversal of her
convictions.

I.

The court affirms the district court’s ruling that there was
not a realistic likelihood of vindictiveness because nothing more
is involved than a “run-of-the-mill pretrial situation,” see Op. 10
(quotation omitted), and because Meadows’ “disparate
treatment” argument lacked merit, id. at 13. This court recently
acknowledged again that Supreme Court precedent leaves little
room for a defendant to demonstrate prosecutorial
vindictiveness at the pretrial stage. See United States v. Slatten,
 2

Slip. No. 15-3078, at 47 (D.C. Cir. Aug. 4, 2017) (citing United
States v. Goodwin, 457 U.S. 368 (1982)). Still, it is unclear
Meadows’ circumstances involved no more than a run-of-the-
mill situation.

In explaining the government’s decision to charge Meadows
with six counts of unemployment fraud, the Assistant United
States Attorney told the district court judge that all other
suspects involved in the D.C. Jail contraband scheme “have
either been found guilty or plead [sic] guilty. We have just one
person – Ms. Meadows – who’s still hanging out there . . . . We
can’t just walk away from that.” Hearing Tr. 22 (Aug. 12,
2014). Additionally, Meadows presented evidence that the
United States Attorney’s Office rarely prosecutes unemployment
fraud; her case was the single unemployment fraud prosecution
in four years even though the D.C. Department of Employment
Services had referred more than 30 cases to the Office for
prosecution involving amounts greater than the $14,173
Meadows owed. See Def.’s Ex. 1 (A. 116-23). True, Meadows
did not show she was treated differently from others who
“participated in the same [offense] and conducted themselves in
the same manner.” Cf. Op. at 13 (quoting Meyer, 810 F.2d at
1246). But the issue is whether “all of the circumstances, when
taken together, support a realistic likelihood of vindictiveness.”
Meyer, 810 F.2d at 1246.

Here, the circumstances could suggest that the prosecutor
had a “personal stake in [obtaining a] conviction and [a]
motivation to engage in self-vindication.” Safavian, 649 F.3d at
692 (quoting United States v. Stanfield, 360 F.3d 1346, 1362
(D.C. Cir. 2004)). In addition to the government’s indictment
of Meadows for obstruction of justice when she repeatedly
refused to cooperate in the investigation of her boyfriend for
murder, prosecutorial frustration was evident from Meadows’
refusal to plead to the contraband charges. Arguably it was
 3

evident as well from the Office’s pursuit of rarely prosecuted
unemployment fraud charges. Indeed, the district court judge
inquired, if the government was so interested in punishing
Meadows for her role in the contraband scheme, then “why do
you not charge her with that?” Hearing Tr. at 22 (Aug. 14,
2014) (emphasis added).

But even assuming that Meadows established a presumption
of vindictiveness as to the unemployment fraud charges, see Op.
13-14, the government offered objective evidence, see Safavian,
649 F.3d at 694, that its charging decision was based on a
different “act of dishonesty” by Meadows, Op. 14 (quoting
Mem. Op. 15), rather than Meadows’ repeated invocation of her
legal rights in the contraband scheme or murder investigation.
For this reason, I concur in holding her prosecutorial
vindictiveness challenge fails.

II.

The prosecutor’s error in rebuttal closing argument is not so
easily dismissed. First, it is well established that counsel may
not argue facts that are not supported by evidence before the
jury. United States v. Maddox, 156 F.3d 1280, 1282 (D.C. Cir.
1998) (collecting cases). Recently the court repeated “that the
prosecutor may not refer in the opening or closing statement to
evidence not admitted at trial.” United States v. Davis, Slip No.
15-3044, at 9 (D.C. Cir. July 21, 2017) (quoting United States v.
Valdez, 723 F.3d 206, 209 (D.C. Cir. 2013)); see also United
States v. McGill, 815 F.3d 846, 916 (D.C. Cir. 2016) (quoting
United States v. Jones, 482 F.2d 747, 753 (D.C. Cir. 1973)).
The reason is self-evident if a defendant is to receive a fair trial
and justice be done. See Berger v. United States, 295 U.S. 78,
88 (1935). Consequently, repeated prosecutorial overreaching
during rebuttal closing arguments to the jury is disheartening.
See, e.g., United States v. Williams, 836 F.3d 1, 11-12 (D.C. Cir.
 4

2016); McGill, 815 F.3d at 918-19; United States v. Becton, 601
F.3d 588, 593-94, 598 (D.C. Cir, 2010); United States v.
Williams, 212 F.3d 1305, 1310-11 (D.C. Cir. 2000). Second, as
the last word the jury hears from the parties, the government’s
rebuttal closing argument can be appropriately forceful in
responding to the defendant’s closing argument. At the same
time and for the same reason, “the potential for prejudice from
an impermissible [rebuttal] closing statement is heightened.”
Davis, No.15-3044, at 20 (citing United States v. Holmes, 413
F.3d 770, 776 (8th Cir. 2005) (collecting cases)). When counsel
for the parties confine their remarks to the evidence admitted at
trial, and reasonable inferences therefrom, the justice system
should work as intended. But when, as here, the rebuttal closing
argument launches into new terrain and the sandbagging of the
defendant is evident, a court must evaluate the likely prejudice
to a defendant with considerable care. See McGill, 815 F.3d at
918; cf. United States v. Moore, 651 F.3d 30, 50-51 (D.C. Cir.
2011).

Today the court takes the position that the prosecutor’s use
of numbers to calculate probability during rebuttal closing
argument was merely a “rhetorical flourish.” Op. 21. But cf.
Davis, No. 15-3044, at 20 (quoting United States v. Monaghan,
741 F.2d 1434, 1440 (D.C. Cir. 1984)). Perhaps had the
Assistant U.S. Attorney told the jury in rebuttal closing argument
that “there is a one in a ga-zillion chance,” or even “a one in a
billion chance,” that the computer glitch occurred as Meadows
testified, then a court might dismiss her objection as a grandiose
or a stylistic form of rhetoric. But that is not what occurred at
Meadows’ trial. During rebuttal closing argument, the
prosecutor introduced his probability theory in a deliberate and
detailed manner, presenting a step-by-step calculation for the
jury in attacking Meadows’ defense. Trial Tr. 79-81 (Dec. 22,
2014). To determine “the odds” that a computer glitch affected
Meadows and only Meadows, the prosecutor told the jury that
 5

first, he multiplied the 49 weeks that Meadows applied for
unemployment by the 20,000 claims submitted each week.
Second, that he multiplied that number by the “61 key strokes
that Ms. Meadows had to make as she sits at her computer
entering her name, the Social Security number, the week ending
days, her e-mail address, plus the six questions [concerning her
eligibility].” Third, that he found a “one in nearly 60 million”
chance by dividing 1 by the product of the multiplication at the
first two steps. As presented, the prosecutor’s probability theory
was more like an indisputable mathematical formula than a
permissible rhetorical flourish supported by the evidence. Yet
because the theory was unsupported by evidence, the
prosecutor’s argument was impermissible under well-settled
controlling precedent, see supra at 3, making the error “plain,”
see United States v. Williams, 773 F.3d 98, 105 (D.C. Cir. 2014)
(citation omitted). Further, the prosecutor’s statements on
probability were both flawed and presented for the first time
during rebuttal closing argument.

Implicitly, the prosecutor’s calculation assumed that no
other glitches of any kind for any other applicant occurred during
the relevant 49-week period. Yet no such evidence was before
the jury. At most, a software technician at the Department of
Employment Services testified that he was unaware of any
widespread computer problems and thought a systemic problem
would have been uncovered during the annual audit. Trial Tr.
32-33, 40-41 (Dec. 18, 2014). But a lack of widespread
problems would not invariably mean no other errors occurred in
the computer system. Indeed, problems with the computer
system and website were apparently common enough for the
Department to establish a streamlined process for applicants to
submit “ticket[s]” to report computer problems to the technicians
who were to “fix[] [such] issues” as they arose. Id. at 40-41.
Because the Department deletes records of specific computer
problems after three years, no records were before the jury on the
 6

number of computer errors in 2009 when Meadows was
submitting claims. Trial Tr. 175 (Dec. 17, 2014).

Additionally, the prosecutor’s calculation based on no
evidence presented a risk of juror confusion. The prosecutor
purported to determine “the odds” that a glitch had occurred as
Meadows described. Trial Tr. 79 (Dec. 22, 2014). What he
really did, however, was assume that a glitch occurred as
Meadows described and that no other glitches occurred during
that time, and then calculate the error rate based on those
assumptions. Oral Arg. 34:07–36:28. Given the subtle
distinctions between error rates and the probability an error
occurred, and the consequent potential for juror confusion, it
may well be that any “analysis of mathematical probability . . .
must be offered through expert testimony.” Commonwealth v.
Ferreira, 955 N.E. 2d 898, 903 (Mass. 2011); see Op. 22. None
was offered at Meadows’ trial, and no other evidence supported
the prosecutor’s newfound theory and its assumptions.

The government responds that the standard jury instructions
at the end of the trial before the jury retired to deliberate
“alleviated any potential prejudice arising from the prosecutor’s
mathematical argument.” Appellee’s Br. 70. The standard
instruction does inform the jury that arguments of counsel are not
evidence. Such generic instructions are not inevitably “a cure-all
for an erroneous statement.” United States v. Hall, 610 F.3d 727,
742 (D.C. Cir. 2010). Here, the jury “instructions d[id] not
address the prosecutor’s error in [rebuttal] closing argument, and
the error affect[ed] a central issue,” namely Meadows’ defense
to the charges. United States v. Williams, 836 F.3d 1, 16 (D.C.
Cir. 2016) (quoting United States v. Watson, 171 F.3d 695, 702
(D.C. Cir. 1999)).

Nevertheless, Meadows has not met her burden to show
prejudice under a plain error standard of review. The
 7

government’s case against her was hardly close; it was
overwhelming. Put otherwise, the error did not affect the
outcome of her trial. See United States v. Gartmon, 146 F.3d
1015, 1026 (D.C. Cir. 1998). Meadows’ testimony about a
computer glitch causing her false responses on 49 occasions was
facially dubious absent any supporting evidence. The software
technician testified that the “glitch” she described would have
been “an error in programming and . . . more systemic than just
a one-off occurrence,” Trial Tr. 180 (Dec. 17, 2014); no evidence
showed an audit had uncovered such a computer problem. At
sentencing, the district court judge even found that Meadows had
perjured herself. Sent. Hg. Tr. 12-13 (July 16, 2015).
Regardless, based on the evidence before the jury, there is no
basis on which the court could conclude that the prosecutor’s
probability theory affected a reasonable jury’s rejection of
Meadows’ bare assertion that she was the repeated victim of a
computer glitch.

Accordingly, I concur in part and I concur in the judgment
affirming Meadows’ convictions.