United States v. Meadows

867 F.3d 1305

UNITED STATES of America, Appellee

v.Brianna MEADOWS, Appellant

No. 15-3045

United States Court of Appeals, District of Columbia Circuit.

Argued January 23, 2017

Decided August 18, 2017

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

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 $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.

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.

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 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) ).

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...