 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued September 10, 2012            Decided October 5, 2012

                         No. 10-3114

                UNITED STATES OF AMERICA,
                        APPELLEE

                              v.

        ABDUL KASSIM KANU, ALSO KNOWN AS ACE,
                     APPELLANT


        Appeal from the United States District Court
                for the District of Columbia
                   (No. 1:09-cr-00356-2)


    Charles J. Soschin, appointed by the court, argued the
cause for appellant. With him on the brief was Joseph R. Conte.

    Mark Aziz, Assistant U.S. Attorney, argued the cause for
appellee. With him on the brief were Ronald C. Machen Jr.,
U.S. Attorney, and Roy W. McLeese III, John P. Mannarino,
Frederick W. Yette, and April E. Fearnley, Assistant U.S.
Attorneys. Elizabeth Trosman, Assistant U.S. Attorney, entered
an appearance.

    Before: HENDERSON, ROGERS and TATEL, Circuit Judges.

    Opinion for the Court by Circuit Judge ROGERS.
                                2

     ROGERS, Circuit Judge: Upon being retried after a mistrial
in his criminal case, appellant had requested that two
stipulations entered into during his first trial not be enforced.
The issue on appeal is whether the district court abused its
discretion in denying that request. The stipulations related
solely to whether certain phone records were authentic
documents and whether they would be admitted into evidence.
By their terms the two stipulations referred to an admission at
“this trial” but were silent about another trial on the same
charges in the indictment, and consequently were ambiguous.

     Although this court has previously articulated a general rule
on the binding nature of stipulations, it has not addressed the
issue in the context of a criminal prosecution where the Sixth
Amendment constitutional right to confront witnesses is
implicated. Appellant does not contend the general rule should
not apply to criminal prosecutions, only that the district court
erred in applying it. We join the other circuits in applying the
general rule on stipulations to criminal prosecutions, and we find
no abuse of discretion by the district court in this case. The
district court could reasonably view the stipulations as
affirmative evidentiary admissions in the prosecution of the
indicted counts. Appellant fails to demonstrate manifest
injustice in being held to the stipulations; he had a full
opportunity to present evidence, call witnesses, and argue to the
jury that the phone records were inconsistent and thus inaccurate
and due little weight – an argument distinct from the phone
records’ authenticity, which he never challenged. Moreover, the
authenticity of the records was a peripheral issue at his trial and
any error in admitting the stipulations was harmless.
Accordingly, we affirm.
                              3

                              I.

     Appellant was indicted in 2009 on two counts, for bank
theft and aiding and abetting in violation of 18 U.S.C. §§
2113(b) & 2, and for bank theft in violation of 18 U.S.C.
§ 2113(c). The government presented evidence that appellant
and three others participated in a staged robbery of an armored
truck around midday on May 22, 2008 near 19th and M or L
Streets in northwest Washington, D.C. The robbers got away
with approximately $210,000, with appellant receiving $40,000.
Among the witnesses was Eric Wilson, who drove the armored
truck for work and was a co-confederate in the robbery. Wilson
testified about appellant’s involvement in planning and
executing the robbery and about how Wilson’s mother Regina
drove appellant and Anthony Holman (a/k/a Nino) to the scene.
Kyndal Green, a former classmate of Holman’s who came to
Washington, D.C. on May 21, 2008 to visit appellant and Siera
Green, testified that appellant spent the evening prior to the
robbery at a hotel with her and he brought bags of money to the
hotel the next day. The government introduced phone records
to corroborate Kyndal Green’s testimony that she had received
a phone call around noon from appellant after the robbery.
Appellant did not own a cell phone at the time, but phone
records indicated he used a phone belonging to one of Regina
Wilson McCollum’s sons (Chaz McCollum) that she had with
her when she was driving appellant and Holman and following
the armored truck. Kyndal Green testified that she did not know
the Wilsons, suggesting that only appellant would have had
reason to call her from that phone line.

    Upon retrial, the government called two additional
witnesses. Wilson’s mother, Regina, testified she drove
appellant and Holman around during the robbery itself. Siera
Green, at whose apartment Kyndal Green received a phone call
from appellant on the day of the robbery, testified that she
                                 4

thereafter drove Kyndal to the hotel room where they found
duffle bags and about 20 packs of bills wrapped with papers on
which was printed “$2,000" as well as more loose money, and
that after appellant and Holman arrived, the four of them were
together for the rest of the day.

      During the first trial, the prosecution and defense agreed to
two stipulations regarding the phone records. Stipulation 1 read:
“The parties agree that the attachment is a true and accurate
copy of phone records for phone number (240) 286-6931
obtained in the name of Danielle McCollum for the use of Chaz
McCollum and that these records may be admitted as evidence
in this trial.” Stipulation 2 read: “The parties agree that the
attachment is a true and accurate copy of phone records for
phone number (973) 409-1391 obtained in the name of Kyndal
Green and that these records may be admitted as evidence in this
trial.” After the testimony regarding the phone records, defense
counsel uncovered an inconsistency in the records – they did not
match (e.g., McCollum’s record shows an outbound call to
Kyndal Green at 12:09 PM on May 22, but Green’s phone
record does not display that incoming call). During closing
arguments, both the prosecutor and defense counsel discussed
the inconsistencies in the phone records. The jury deadlocked,
and the district court declared a mistrial.

     The retrial began ten days later, on September 17, 2010.
Prior to opening statements to the jury, the prosecutor alerted the
district court that a dispute may arise as to whether to admit the
stipulations from the first trial. The district court stated that it
was inclined to admit them as “prudent and efficient.” Tr. Sept.
17, 2010 at 105. Defense counsel requested they not be
enforced, explaining that he had not realized when he entered
the stipulations that phone conversations in those records were
missing and he had not had Kyndal Green’s name until
approximately three days before the first trial. Upon further
                                 5

consideration, the district court ruled that the stipulations would
be enforced because nothing in the record indicated any type of
injustice, much less manifest injustice, to appellant from being
held to what he had stipulated.

     A jury found appellant guilty on both counts, and the
district court sentenced him to concurrent terms of 48 months’
imprisonment on each count, 36 months supervised release, and
$100 assessments on each count, in addition to $40,000 in
restitution. Appellant appeals.

                                II.

     Appellant contends the district court erred in denying his
request not to enforce the two stipulations at his retrial following
the mistrial at the first trial. He maintains the stipulations were
expressly limited to use only during his first trial, and he
suffered manifest injustice as a result of their use because the
records were inaccurate and he was prevented from cross-
examining phone company witnesses about the inconsistencies
between the phone records. This court reviews the district
court’s evidentiary ruling for abuse of discretion. See United
States v. Whitmore, 359 F.3d 609, 616 (D.C. Cir. 2004); see also
Kickapoo Tribe v. Babbitt, 43 F.3d 1491, 1497 (D.C. Cir. 1995).

     Stipulations, like admissions in the pleadings, are generally
binding on the parties and the court. Nat’l Ass’n of Life
Underwriters, Inc. v. Comm’r of Internal Revenue, 30 F.3d
1526, 1530 (D.C. Cir. 1994) (quoting Am. Title Ins. Co. v.
Lacelaw Corp., 861 F.2d. 224, 226 (9th Cir. 1988)). They, “like
other contracts, must be interpreted in light of the circumstances
under which the agreement was made.” Nat’l Audubon Soc’y,
Inc. v. Watt, 678 F.2d 299, 307 (D.C. Cir. 1982). Stipulations
entered into by the parties “in the course of legal proceedings
‘are not as irrevocable as other contracts,’” and the “[t]rial
                                  6

court[] may, in the exercise of sound judicial discretion and in
furtherance of justice, relieve parties from stipulations into
which they have entered. Relief should be granted if the balance
of equities favors the moving party.” Id. at 311 n.28 (internal
citations omitted). “[W]herever justice requires a court may set
aside a stipulation. . . . ‘[I]t has inherent power, in the control of
its own action, to relieve against them when made improvidently
or when for any cause their enforcement would work injustice.’”
Laughlin v. Berens, 118 F.2d 193, 196 (D.C. Cir. 1940) (citation
omitted).

      Other circuits have expanded on this analysis, including in
more recent cases. For example, in Wheeler v. John Deere Co.,
935 F.2d 1090 (10th Cir. 1991), the Tenth Circuit stated that “[a]
stipulation is an admission which ‘cannot be disregarded or set
aside at will,’” but, as a matter of the district court’s discretion,
“may be withdrawn whenever necessary to prevent manifest
injustice,” id. at 1097–98 (citations omitted). “District courts
consequently are vested with broad discretion in determining
whether to hold a party to a stipulation . . . .” Id. at 1098.
Further, “[w]hen a stipulation is limited expressly to a single
trial and phrased in terms of conclusory, rather than evidentiary,
facts, district courts may on retrial free a party from the
stipulation.” Id. In much the same vein other circuits, such as
the First Circuit, have stated that a party may be relieved of a
stipulation if “good reason” exists and such relief does “not
unfairly prejudice the opposing party or the interests of justice.”
Am. Honda Motor Co., Inc. v. Richard Lundgren, Inc., 314 F.3d
17, 21 (1st Cir. 2002).

     Additional cases illustrate the broad scope of the district
court’s discretion in enforcing stipulations. In Waldorf v. Shuta,
142 F.3d 601 (3d Cir. 1998), the Third Circuit observed that
“[i]n general, courts encourage parties to enter into stipulations
to promote judicial economy by narrowing the issues in dispute
                                  7

during litigation.” Id. at 617. Consistent with this purpose, the
court instructed that “[g]enerally, a stipulation entered into prior
to a trial remains binding during subsequent proceedings
between the parties,” noting “a well-recognized rule of law that
valid stipulations entered into freely and fairly, and approved by
the court, should not be lightly set aside.” Id. (citation omitted).
Although “conclusory stipulations are entitled to less deference
than evidentiary ones,” id. at 617, the “overriding factor” is “the
parties’ intention to limit or not limit a stipulation to only one
proceeding.” Id. So, irrespective of the nature of the
stipulation (e.g., it is conclusory), “a stipulation does not
continue to bind the parties if they expressly limited it to the
first proceeding or if the parties intended the stipulation to apply
only at the first trial.” Id. at 616. In Waldorf, the court found no
abuse of discretion in enforcing a stipulation that was “an open-
ended concession of liability” without limitation to the
“ensuing” trial. Id. at 617.

     In Hunt v. Marchetti, 824 F.2d 916 (11th Cir. 1987), by
contrast, a stipulation was not enforced at the second trial. This
was a libel action brought by Hunt after publication of an article
stating that the CIA would implicate him in the assassination of
President Kennedy. Counsel for the newspaper publisher stated
in opening argument to the jury that it would not attempt to
prove that Hunt was in Dallas, Texas on the day of the
assassination. The district court explained to the jury that “for
the purposes of this trial” the defendant conceded that fact. Id.
at 917. Defense counsel responded, “So stipulated.” At trial,
the defendant relied on the stipulation to prevent Hunt from
introducing evidence regarding where he was on the date of the
assassination. A judgment for Hunt was reversed in part on
appeal (Hunt v. Liberty Lobby, 720 F.2d 631 (11th Cir. 1983)),
and prior to the new trial the same district court judge ruled that
the oral stipulation applied only to the first trial, given the intent
of the parties. Id. On appeal from a judgment for the
                                8

defendant, the Eleventh Circuit found no abuse of discretion in
not enforcing the stipulation, concluding the defense statements
to the jury “are more accurately viewed as a stipulation that the
question of Hunt’s alleged involvement in the assassination
would not be contested at trial. They thus served merely to
narrow the factual issues in dispute,” id. at 917–18, and were
not an evidentiary stipulation. See id. at 918 (internal citations
omitted). Even had it been “willing to second-guess the trial
judge’s interpretation of the stipulation,” the court observed
there still would not have been an abuse of discretion because
defense counsel’s statements had a similar effect at trial as a
Rule 16(c) stipulation for a pre-trial order, which, although
modifiable “‘only to prevent manifest injustice,’ . . . need not be
‘rigidly and pointlessly adhered to at trial.’” Id. (quoting 6 C.
Wright and A. Miller, FEDERAL PRACTICE AND PROCEDURE
§ 1527).

     The general rule on stipulations has long been applied by
other circuits in criminal prosecutions as well. See, e.g., United
States v. Kiser, 948 F.2d 418, 425 (8th Cir. 1991); cf. United
States v. Gwaltney, 790 F.2d 1378, 1386 (9th Cir. 1986), cert.
denied, 479 U.S. 1104 (1987) (citing United States v. Campbell,
453 F.2d 447, 451 (10th Cir. 1972)). Indeed, United States v.
Wingate, 128 F.3d 1157, 1160 (7th Cir. 1997), is similar to the
instant case as it also involved a retrial of a criminal defendant
after the jury deadlocked and a mistrial was declared. Prior to
the first trial the parties in Wingate had entered into a written
stipulation regarding the contents of an INS file and the
stipulation was admitted into evidence. Upon retrial, with new
counsel, the defendant objected when the prosecutor sought to
admit the stipulation into evidence on the ground it denied him
a right to confront witnesses under the Sixth Amendment to the
Constitution. Post-trial the defendant filed an affidavit stating
initial defense counsel had entered the stipulation over this
objection. The Seventh Circuit upheld the district court’s
                                 9

decision not to release the defendant from his stipulation. In
rejecting the argument that the general rule on stipulations did
not apply in criminal cases involving constitutional rights, the
court observed “there appears to be no support for that
proposition.” Id. Noting its own precedent applying the general
rule in criminal cases, the court explained: “District courts have
broad discretion to manage trials, and this includes holding
defendants to their stipulations, even regarding essential
elements of proof, in the absence of manifest injustice,
inadvertence or a mistake as to the law or facts of the case.” Id.
at 1161 (internal citations omitted). The court also rejected the
manifest injustice claim, noting the defendant did not argue he
had made a mistake as to the law or the facts of the case. In
responding to the defendant’s argument that he inadvertently
assumed the subject of the INS file would be called as a
witness, and so did not seek to set aside the stipulation, the court
noted that the record of the retrial clearly showed the subject
would not be a witness; moreover, the government had relied on
the stipulation in preparing its case. See id. Holding that “[t]he
district court did not clearly or unmistakably abuse its discretion
in admitting the stipulation,” the court noted further that any
error in admitting the stipulation would have been harmless, and
that even were the stipulation cumulative, its effect on the trial
was “negligible” because it did not preclude the defendant from
attempting to show the inaccuracy of the INS file. See id.

     The Seventh Circuit’s analysis in Wingate is in harmony
with this circuit’s precedent in civil cases, and appellant does
not suggest the general rule on stipulations should not apply to
criminal prosecutions. So understood, we reach a similar
conclusion in the instant case as that reached in Wingate.

                            A.
    As an initial matter, we note that the government’s
suggestion that appellant may not appeal the district court’s
                               10

enforcement of the second stipulation (Kyndal Green’s phone
records), which only he sought to have introduced at retrial, is
not well taken. “[U]nder the invited error doctrine [] a party
may not complain on appeal of errors that he himself invited or
provoked the district court to commit.” United States v. Wells,
519 U.S. 482, 488 (1997) (internal quotation marks, citation,
and alteration omitted); see also United States v. Lawrence, 662
F.3d 551, 557 (D.C. Cir. 2011). Although appellant sought
admission of Green’s phone record, relying on the stipulation,
he did so only after the prosecutor had successfully admitted
McCollum’s record. In order to demonstrate inconsistencies in
the records, appellant was thus forced to seek admission of the
Green record. Before the retrial commenced, appellant had
voiced his objections to the district court regarding enforcement
of the stipulations upon retrial.

     Applying the invited error doctrine in these circumstances
would create a Catch-22 — a defendant would have to choose
between presenting a defense, based on the evidence of the
inconsistencies in the phone records (which necessitated
introducing the second record because the prosecutor had not),
or hoping for reversal on appeal of the district court’s denial of
his non-enforcement request. This is neither the role nor the
nature of induced error addressed by the doctrine. The error of
which appellant complains is the enforcement of the stipulations
at all, and he clearly did not induce the district court to do so.

                               B.
      Regarding enforcement, the first clause of each stipulation
— stating the records are true and accurate copies of phone
records for the respective phone numbers — may properly be
regarded as a factual, evidentiary stipulation, and not limited in
time. Each is a formal, written stipulation of the parties that
such evidence need not be presented through live testimony at
trial. As such the stipulations would not appear to be
                                 11

conclusory in nature, see Hunt, 824 F.2d at 918, and appellant
does not suggest they are. Each stipulation also contained in a
separate clause the phrase “these records may be admitted as
evidence in this trial.” This phrase is ambiguous: although, as
appellant emphasizes, it is an express limitation, it is silent as to
other trials, including a retrial of the same charges in the
indictment. In the exercise of the district court’s discretion, see
Wingate, 128 F.3d at 1160; Nat’l Audubon, 678 F.2d at 311
n.28, the ambiguity could reasonably be resolved by viewing
the stipulations to reflect an agreement “co-extensive with the
cause,” Vattier v. Hinde, 32 U.S. 252, 266 (1833), of the trial on
the two-count indictment filed against appellant.

      Appellant’s reliance on Hunt, 824 F.2d at 917–18, is to
little avail. Although the trial judge’s explanation of the
defense stipulation during opening argument to the jury
contained a similar “this trial” limitation, the Eleventh Circuit
viewed the oral statements to be “more accurately viewed” as
not contesting (as distinct from affirmatively admitting) that
Hunt was not in Dallas on the day of the assassination. Id. at
918. By contrast, the two stipulations in appellant’s case were
not similarly “made for purposes of this trial” but with regard to
the agreed admission of evidence. Thus, this case is more
analogous to the situation in Wheeler, 935 F.2d at 1099, where
the Tenth Circuit explained that the defendant,“[u]nlike the
defendant in Hunt, . . . made an affirmative, formal, factual
statement that it was feasible to design a safer product and
reduced the statement to writing.” “Such factual statements are
judicial admissions normally binding on a party.” Id.

     Even if the “this trial” clause in the two stipulations in
appellant’s case would bar enforcement of them in a different
case, involving different criminal charges or a civil complaint,
enforcing the stipulations upon retrial of the two counts in the
indictment was a permissible alternative available to the district
                                12

court, cf. Kickapoo Tribe, 43 F.3d at 1497 (citing Maurice
Rosenberg, Judicial Discretion of the Trial Court: Viewed from
Above, 22 Syracuse L. Rev. 635 (1971)). Not only was the “this
trial” clause ambiguous, appellant’s objection is not about the
authenticity of the phone records; he does not dispute that they
are, in fact, accurate copies of the records (i.e., not forgeries).
Instead, he asserts that the records are inconsistent and thus
inaccurate. That argument presents a question of the weight
that should be given to the stipulations, a question for the jury
to consider. See, e.g., Wingate, 128 F.3d at 1161.

                               C.
     Appellant’s claim that use of the stipulations resulted in
manifest injustice is also unpersuasive. The four factors courts
have viewed as relevant do not weigh in his favor. Those factors
are: (1) the effect of the stipulation the party seeking to
withdraw the stipulation, (2) the effect on other parties, (3) the
occurrence of intervening events since the parties agreed to the
stipulations, and (4) whether evidence contrary to the stipulation
is substantial. See Waldorf, 142 F.3d at 617–18 (collecting
cases).

     Appellant maintains that had the government been required
to have phone company employees testify to establish the
authenticity of the records, he could have cross-examined them
regarding the inconsistencies. But, appellant never challenged
the records’ authenticity and, as the government points out,
“nothing prevented him from calling [phone company
employees] as defense witnesses.” Appellee’s Br. at 20.
Appellant also had the opportunity to cross-examine Kyndal
Green regarding the phone records, and to present closing
argument on the topic of the inconsistencies. Thus, the effect of
enforcement of the stipulations on appellant was “negligible.”
Wingate, 128 F.3d at 1161. Second, because appellant raised
his objection on the first day of the retrial and the district court
                               13

had indicated postponement of trial was not an option given its
schedule, see Tr. Sept. 7, 2010 at 5–6, the government’s time to
secure additional witnesses was limited. See Caban Hernandez
v. Philip Morris USA, Inc., 486 F.3d 1, 6 (1st Cir. 2007).
Appellant’s best hope is the third factor, in view of defense
counsel’s post-stipulation discovery of inconsistencies in the
phone records. To the extent appellant maintains he never
would have stipulated to inaccurate records, the stipulations are
to the authenticity of the phone records as true and accurate
copies, a fact he has never challenged. Defense counsel did not
claim not to have had the phone records for comparison, only
that he had not received Kyndal Green’s name until just before
trial. Nor did he seek to withdraw the stipulations upon his
discovery but instead brought the inconsistencies to the jury’s
attention, indicating he recognized the distinction between
accuracy and the weight a jury should accord the phone records.
Finally, the purported inconsistencies did not necessarily render
the records inauthentic; the records were maintained by two
different companies that may record phone calls differently, see
Gov’t Exhibits 9 and 52. Accord Am. Honda Motor Co., Inc.,
314 F.3d at 21–22; Waldorf, 142 F.3d at 618.

     Moreover, any error in admitting the stipulations into
evidence was harmless. See In re Sealed Case, 352 F.3d 409,
411–12 (D.C. Cir. 2003). The authenticity of the phone records
was a limited and non-central issue at appellant’s trial, and
appellant fails to show how the admission upon retrial had “a
substantial and injurious effect or influence in determining the
jury’s” assessment of his culpability. See United States v. King,
254 F.3d 1098, 1101 (D.C. Cir. 2001) (quoting Kotteakos v.
United States, 328 U.S. 750, 776 (1946)); Kiser, 948 F.2d at
425. At the retrial the government called two additional
witnesses (Regina Wilson McCollum and Siera Green), and its
evidence of appellant’s guilt was overwhelming, given the co-
confederates’ testimony by Wilson and his mother Regina, as
                              14

bolstered by Kyndal and Siera Greens’ testimony regarding, for
example, appellant’s arrival at the hotel room with bags filled
with money wrapped in bank notes, and by the surveillance
video showing Regina Wilson McCollum’s vehicle following
behind the armored truck. See United States v. Moore, 651 F.3d
30, 76 (D.C. Cir. 2011); United States v. Palmera Pineda, 592
F.3d 199, 200 (D.C. Cir. 2010).

     Accordingly, we hold that the district court did not abuse
its discretion in denying appellant’s request not to enforce the
stipulations on the authenticity of the phone records at his
retrial, and we affirm the judgment of conviction.
