269 F.3d 1086 (D.C. Cir. 2001)
United States of America, Appelleev.Antonio L. Venable, Appellant
No. 00-3089
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 13, 2001Decided November 6, 2001Corrected November 16, 2001

[Copyrighted Material Omitted]
Appeal from the United States District Court  for the District of Columbia  (No. 00cr00038-01)
Lisa B. Wright, Assistant Federal Public Defender, argued  the cause for appellant.  With her on the brief was A.J.  Kramer, Federal Public Defender.  Valencia R. Rainey,  Assistant Federal Public Defender, entered an appearance.
Suzanne Grealy Curt, Assistant U.S. Attorney, argued the  cause for appellee.  With her on the brief were Wilma A.  Lewis, U.S. Attorney at the time the brief was filed, and John R. Fisher, Roy W. McLeese III, and James G. Flood, Assistant U.S. Attorneys.
Before:  Tatel and Garland, Circuit Judges, and  Williams,* Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge:


1
A jury found Antonio Venable  guilty of one count of unlawful possession of a firearm by a  convicted felon, in violation of 18 U.S.C. § 922(g)(1).  Venable  challenges his conviction on the ground that, during closing  argument, the prosecutor improperly suggested that the jury  could acquit Venable only if it disbelieved three government  witnesses.  Because defense counsel did not object to the  prosecutor's statement, and because the statement did not  rise to the level of reversible error under Federal Rule of  Criminal Procedure 52(b), we affirm.


2
* On January 4, 2000, Talmadge Watson, the manager of a  youth recreation center in the District of Columbia, made a  911 call to the Metropolitan Police Department.  Watson  reported that a man with a gun was inside the center.  He  described the person as a black male, wearing a black leather  jacket, a baseball cap with the letter "P" on it, and dark  trousers.  That description was broadcast over the police  radio.


3
Officer James Thomas responded to the broadcast and  reached the recreation center at approximately 6:00 p.m.  At  trial, Thomas testified that, while walking toward the center,  he saw a man leave the building who appeared to match the  broadcast description.  After noticing other police officers  arrive on the scene, the man turned around and reentered the  building.  Officer Thomas then went into the center and,  together with Officer Christopher Baxa, began to search for  exits through which the suspect might have fled.


4
At this point, Watson, the manager who had made the  original 911 call, approached Baxa and told him that the  suspect was at the front door. Officers Thomas and Baxa  went back to the front of the building and detained defendant  Venable, who was standing at the door.  Venable was wearing  dark jeans and a baseball cap with the letter "P," but not the  black leather jacket that Thomas had seen on the man  previously standing outside.  While the cold and misty weather warranted a coat, Venable was wearing only a T-shirt. Both Thomas and Baxa testified that, although they had not  said a word about a black jacket, Venable spontaneously told  them that he did not have one and that he had not worn a  coat to the recreation center that day.


5
The officers then began searching the center for the black  leather jacket.  Thomas soon found one, slightly wet, in a pile  of coats on a pool table in the center's game room.  According  to Thomas' testimony, the jacket appeared to be the one worn  by the man he had seen outside the center;  Thomas did not,  however, definitively identify Venable as that man.  Wrapped  inside the jacket, which contained no identifying information,  was a loaded semi-automatic pistol.


6
At trial, Venable's prior felony conviction was the subject of  a stipulation between the parties.  The chief witnesses  against the defendant were the two police officers, who  testified as set forth above, and Watson, who testified that he  had seen Venable with the gun.  The jury was told that  Watson himself had two prior convictions:  for making a false  statement or misrepresentation to the police involving the use  of a false driver's license, and for attempted possession of  PCP.  The principal defense witnesses were two recreation  center employees, who described themselves as friends of  Venable.  Derrall Joyner, an assistant manager at the center,  testified that Venable had come into the center without a  jacket and had never entered the game room.  Jenine Davis,  a recreation specialist, testified that, at a meeting she attended with Watson and defense counsel, Watson agreed that  Venable had not been wearing a black jacket and had not  been in the game room.  Upon cross-examination, Watson  denied making such a statement.


7
During closing argument, the prosecution maintained that  Watson, despite his run-ins with the law, was a courageous  man who deserved praise for his concern about the recreation  center's safety, and who had no motive to notify the police  falsely that Venable had a gun.  The prosecution further  suggested that, by contrast, the defense witnesses had motives to fabricate because they were friends of Venable and  because Joyner resented the police's intrusion into the center. The defense countered that Watson had lied in the past, and  that the jury should instead believe Joyner and Davis.


8
In rebuttal, the Assistant United States Attorney continued  to stress the credibility of the government's witnesses.  He  then made the statement that is at issue on this appeal:  "For  you to find Mr. Venable not guilty, you must disbelieve the  testimony of Mr. Watson, Officer James Thomas, and Officer  Baxa."  Defense counsel did not object, and the jury convicted Venable of violating 18 U.S.C. § 922(g)(1).

II

9
Because defendant's counsel did not object to the challenged statement, we review it only for plain error under  Federal Rule of Criminal Procedure 52(b).  See Johnson v.  United States, 520 U.S. 461, 466 (1997).  That standard  requires:  "(1) 'error,' (2) that is 'plain,' and (3) that 'affectsubstantial rights.' "  Id. at 467 (quoting United States v.  Olano, 507 U.S. 725, 732 (1993)).  The third condition "in  most cases ... means that the error must have been prejudicial:  It must have affected the outcome of the district court  proceedings."  Olano, 507 U.S. at 734.  Moreover, it is "the  defendant rather than the Government who bears the burden  of persuasion with respect to prejudice."  Id.  Finally, "[i]f all  three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the  error 'seriously affect[s] the fairness, integrity, or public  reputation of judicial proceedings.' "  Johnson, 520 U.S.at  467 (quoting Olano, 507 U.S. at 732) (other citations omitted).


10
* Venable contends that the prosecutor's remark was plain  error because it had the effect of "diluting" the government's  burden of proof.1  Read with a grammarian's eye, the prosecutor's statement was surely error.  Telling the jury that in  order to acquit Venable it would have to disbelieve Watson,  Thomas, and Baxa was logically equivalent to saying that the  jury would have to convict Venable if it believed Watson,  Thomas, or Baxa.  That proposition was false.  The testimony of Thomas or Baxa alone might well have been insufficient  to find the defendant guilty and, in any event, would certainly  not have compelled a guilty verdict.  Moreover, the prosecutor was wrong not just in using the conjunction "and," but  also in using the verb "disbelieve."  The jury did not need to  disbelieve Watson or any other witness to acquit Venable. Reasonable doubt about Venable's guilt was all that was  required.  Cf. United States v. Rawlings, 73 F.3d 1145, 114849 (D.C. Cir. 1996) ("[T]he jurors were not, as the court  erroneously instructed, required to decide whom to believe....  They had to determine only whether the Government proved what it alleged had happened beyond a reasonable doubt.").


11
To conclude that the prosecutor's statement was technically  erroneous, however, is not to conclude that the error was  plain--i.e., "clear" or "obvious," Olano, 507 U.S. at 734. Neither courts nor juries parse extemporaneous remarks in  closing argument as closely as sentences in carefully drafted  legal documents.  Indeed, even in such documents authors  sometimes use the word "and" to convey the meaning of  "or"--and vice versa.  See, e.g., Varel v. Banc One Capital  Partners, Inc., 55 F.3d 1016, 1020-21 (5th Cir. 1995) (holding  that the word "and" in a contract may mean "or");  see also,  e.g., De Sylva v. Ballentine, 351 U.S. 570, 573 (1956) ("We  start with the proposition that the word 'or' is often used as a careless substitute for the word 'and.' ").  Likewise, the word  "disbelieve" may be used loosely to indicate doubt rather than  actual disbelief.  In fact, in their written brief in this case,  defendant's appellate counsel used the word in just that way. Focusing on the prosecutor's error in stating that the jury  could not acquit unless it disbelieved Watson, Thomas, and  Baxa, appellate counsel erroneously conceded that it was,  however, "essentially correct to say that the jury could not  acquit unless it disbelieved Watson."  Appellant's Br. at 13. Appellate counsel's inaccurate formulation, contained in a  brief they had ample time to craft, only underscores why  statements made in the heat of oral argument are not and  cannot be read with an editor's red pencil in hand.  Cf.  Donnelly v. DeChristoforo, 416 U.S. 637, 646-47 (1974) (cautioning that a court should not lightly infer that a jury will  draw the most damaging meaning from a prosecutor's remark  in closing argument).


12
In assessing the import of a statement made in closing  argument, context is key.  And in the context of the prosecutor's entire argument in this case, it is not clear that the jury  would have understood his statement to mean that crediting  the testimony of any of the three witnesses would compel  conviction.  To the contrary, the prosecutor stressed the  centrality ofWatson's testimony, acknowledging that without  Watson the government would not have had a case against  Venable.  Tr. at 270.  Similarly, we hesitate to find that the  jury would clearly have understood the prosecutor to say that  acquittal required the jury's "disbelief" in the literal sense-rather than reasonable doubt on the ultimate question of  Venable's guilt--since the prosecutor also noted the government's burden of proving guilt beyond a reasonable doubt. Id. at 258;  cf. United States v. Spencer, 25 F.3d 1105, 1110  (D.C. Cir. 1994) (holding that where a district court instructed  the jury that it must decide whether the government's or the  defendant's witnesses were lying, but had earlier given a  proper instruction regarding the burden of proof, the "jury  could not have construed the court's remark to mean that the  defendant had the burden of proof, unless it ignored the  court's other instructions").  Accordingly, we conclude that although the prosecutor's statement was erroneous, in context  it was not plainly so.

B

13
Even if the prosecutor's error were plain, to warrant  reversal of Venable's conviction it would also have to have  prejudiced the outcome of the trial.  See Olano, 507 U.S. at  734.  In evaluating the potential prejudice from an improper  statement in closing argument, this court typically looks to  the centrality of the issue affected, the severity of the prosecutor's misconduct, the steps taken to mitigate the misconduct, and the closeness of the case.  See United States v.  Gartmon, 146 F.3d 1015, 1026 (D.C. Cir. 1998);  United States  v. North, 910 F.2d 843, 895 (D.C. Cir. 1990).  Considering  those factors, we do not find the kind of prejudice necessary  to justify vacating Venable's conviction.


14
Although the issue affected by the prosecutor's comment,  the government's burden of proof, was as central to this case  as it would be to any case, the prosecutor's misstatement  cannot be characterized as severe.  As noted above, in context it is not clear that the jury would have understood the  prosecutor as misstating (or diluting) the government's burden.  Moreover, the offending comment consisted of a single  sentence in the course of a closing that was otherwise devoted  to proper argument regarding why the government witnesses  were believable and the defense witnesses were not.  As we  held in United States v. North, "[w]ithout other compelling  factors, a single misstatement confined to a closing argument  rarely amounts to severe misconduct."  910 F.2d at 897.


15
There are no such compelling factors here.  To the contrary, the prosecutor's misstatement was mitigated by the  court's twice-delivered instructions that the "law doesn't require a defendant to prove his innocence, produce evidence or  testify," and that the burden of proof "is on the Government  to prove the defendant guilty beyond a reasonable doubt and  that burden of proof never shifts throughout the trial," Tr. at  19 (initial instructions);  id. at 275 (final instructions).  See United States v. Catlett, 97 F.3d 565, 573 (D.C. Cir. 1996)  (holding that the same burden-of-proof instruction as that  used here cured any confusion caused by a prosecutor's  remark that the jury could have understood as burdenshifting);  United States v. Trapnell, 638 F.2d 1016, 1026 (7th  Cir. 1980) (finding no plain error where, although the prosecutor made a remark similar to that challenged here, "the  trial court's instructions unambiguously place[d] the burden  of proof on the government").  The impact of the misstatement was still further reduced by the judge's instructions that  it was the court's responsibility to apprise the jury as to the  law, and that the lawyers' statements were merely argument. See generally Gartmon, 146 F.3d at 1026;  United Statesv.  Gatling, 96 F.3d 1511, 1524 (D.C. Cir. 1996).


16
Finally, although the evidence against Venable was not  overwhelming, it was sufficiently strong, in light of the foregoing factors, to undermine the assertion that the outcome of  the trial was affected by the prosecutor's statement.  Watson's eyewitness testimony regarding Venable's possession of  the weapon (together with the stipulation that Venable had a  felony conviction) established all of the elements of the crime. And while Watson was not an unimpeachable witness, the  defense did not suggest any motive for him to accuse Venable  falsely.  Moreover, Watson's testimony was corroborated in  important parts by both the officers' testimony and Venable's  own spontaneous utterance.  The officers' observations supported the prosecution's theory that Venable removed his  jacket--wet from the mist outside--and wrapped the gun in it  when he saw them coming.  And Venable's declaration that  he had not worn a black jacket that day--at a time when the  officers had not yet said a word about a jacket--was a classic  example of "protesting too much."


17
Weighing all these factors, we conclude that the defendant  has not met his burden, under the third prong of the plain  error standard, to establish prejudice arising from the prosecutor's error.  Thus, there is no need for us to consider how  Venable would fare under the fourth prong of the standard,  which further requires him to establish that the error "seriously affect[s] the fairness, integrity, or public reputation of  judicial proceedings."  Johnson, 520 U.S. at 467 (quoting  Olano, 507 U.S. at 732) (other citations omitted).

III

18
In the context in which it was made, the prosecutor's  erroneous misstatement of the standard for acquittal was  neither plain nor prejudicial.  Accordingly, the defendant's  conviction is


19
Affirmed.



Notes:


*
  Senior Circuit Judge Williams was in regular active service at  the time of oral argument.


1
 The defendant concedes "that the prosecutor did not set out to  intentionally dilute the government's burden of proof, and would  surely not have made the misstatement if he had thought it  through."  Appellant's Reply Br. at 5.


