 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued April 5, 2013                   Decided July 9, 2013

                       No. 11-7086

                   LINDSAY HUTHNANCE,
                        APPELLEE

                             v.

              DISTRICT OF COLUMBIA, ET AL.,
                      APPELLANTS


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:06-cv-01871)


     Mary L. Wilson, Senior Assistant Attorney General,
Office of the Attorney General for the District of Columbia,
argued the cause for appellants. With her on the briefs were
Irvin B. Nathan, Attorney General, Todd S. Kim, Solicitor
General, and Donna M. Murasky, Deputy Solicitor General.

    John Moustakas argued the cause for appellee. With him
on the brief were Jeffrey D. Skinner, Andrew S. Hudson,
Arthur B. Spitzer, and Frederick V. Mulhauser.

   Before: BROWN and KAVANAUGH, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.

    Opinion for the Court filed by Circuit Judge BROWN.
                               2

    Dissenting opinion filed by Circuit Judge KAVANAUGH.

     BROWN, Circuit Judge: The District of Columbia and two
of its police officers appeal a jury verdict in favor of Lindsay
Huthnance, an alleged victim of overzealous law
enforcement. Huthnance claimed District police violated her
common-law, statutory, and constitutional rights when they
arrested her for disorderly conduct. A jury agreed, awarding
her $90,000 in compensatory damages against the District and
two of its officers, as well as $7,500 in punitive damages
against the individual officers. The District and the officers
now challenge the district court’s decision to exclude certain
evidence, and argue that two jury instructions were improper.
We agree the court erred by issuing a missing evidence
instruction, but conclude the error was not prejudicial and
affirm the district court.

                               I

     On November 15, 2005, Huthnance and her boyfriend,
Adrien Marsoni, joined two friends at the Raven Bar and Grill
in the District’s Mt. Pleasant neighborhood for a few drinks.
On their walk home afterwards, Huthnance and Marsoni
stopped at a 7-Eleven to buy cigarettes, a decision that
ultimately spoiled what may otherwise have been a lovely
evening. The parties dispute what happened, but in broad
strokes, Huthnance got into a verbal tussle with some police
officers and was arrested for disorderly conduct.

     This is Huthnance’s story. She “saw a number of police
officers inside” the 7-Eleven and asked “what was going on.”
Trial Tr. 52 (Mar. 7, 2011). Apparently uninterested in
friendly banter, the officers told her to mind her own business
and move along, so she turned to Marsoni and said, “Wow,
                               3
nice use of my tax dollars.” Id. One of the officers, “in sort of
a confrontational way,” challenged Huthnance to repeat
herself, but she declined and walked out of the store,
intending to go home. Id. at 52, 55. On their way out, Marsoni
told someone outside the 7-Eleven to “fuck off,” but they
continued “up the street” unmolested. Id. at 55, 112. This did
not last. Two officers—James Antonio, the person Marsoni
told to “fuck off,” and Liliana Acebal—followed Huthnance
and Marsoni, stopped them, and demanded to see
identification. Marsoni complied; Huthnance did not. Instead,
she “asked continuously” why she was being stopped,
whether the officers had probable cause, and whether she was
under arrest. Id. at 55. The officers did not respond.
Huthnance then “raise[d her] voice” and said “I want your
badge number.” Id. at 55, 61. She was instead told to put her
hands against the wall. She complied, at which point Officer
Acebal searched and handcuffed her. A third officer drove
Huthnance to the police station, where she remained until
morning. Huthnance claims this encounter began around
11:45 p.m. and that she was arrested ten minutes later and was
taken to the police station soon after midnight.

      The appellants paint a very different picture. Relying on
Officer Antonio’s and Officer Acebal’s trial testimony, they
claim Officers Antonio and Acebal, along with Officer Jose
Morales, stopped to use the 7-Eleven’s bathroom during a
plainclothes robbery detail. Officers Antonio and Acebal
waited outside while Officer Morales went inside, and while
sitting in their car, they saw Huthnance inside the 7-Eleven,
“backing up towards the door. . . . waving her arms around”
with “her middle finger ex[t]ended towards the officers that
were inside the 7-Eleven.” Trial Tr. 43 (Mar. 11, 2011). They
also heard her “scream out: You donut eating mother fuckers,
this is where my tax dollars are going.” Id. at 44. Seeing that
his colleagues inside 7-Eleven had not asked Huthnance to
                                4
stop “standing in the doorway” and that two people “had
walked up and tried to get into the 7-Eleven,” Officer Antonio
approached Huthnance and asked her to “keep it down and
just keep moving.” Id. at 44–45. Officer Acebal also asked
Huthnance to calm down. Apparently unappreciative of the
officers’ solicitude for potential 7-Eleven patrons, Huthnance
screamed, “Fuck you. Mind your own fucking business, go
fuck yourself.” Id. at 45. Huthnance and Marsoni then began
walking away, but Huthnance turned around, pulling back
from Marsoni, and in a “[v]ery loud” voice said, “Fuck that. I
ain’t fucking going nowhere. I’m a fucking citizen, I know
my fucking rights.” Id. at 48. Marsoni repeatedly tried to calm
her down and go home, but despite his best efforts, she began
walking back toward the officers, yelling further affirmations
of her citizenship and rights.

      By now, the officers had asked her a number of times to
calm down and go home and warned her that if she did not,
they would issue her a citation for being “loud and
boisterous.” Id. at 55. People were also beginning to “gather
around” to see what was happening, residents of the
apartments across the street were turning on their lights, and
vehicles were slowing and stopping. Officer Antonio
therefore walked back to the car to get the citation booklet,
and Officer Acebal asked Huthnance for identification.
Huthnance, who is about a foot taller than Officer Acebal,
stood “basically on top of” the officer and replied, “Fuck you
little bitch, I ain’t giving you shit.” Id. at 60. The officers had
noticed “a hint of alcohol on her breath” and that her hair was
“a little messy” and her eyes “a little red,” id. at 46, so when
bystanders started moving closer, the officers decided to
arrest her. Huthnance then asked, “What are you arresting me
for, being drunk and eating a burrito?” Trial Tr. 29 (Mar. 14,
2011). According to the officers’ testimony at trial, they first
                                5
arrived at the 7-Eleven around 1:40 a.m. on November 16 and
arrested Huthnance somewhere between 1:45 and 1:55 a.m.

     Huthnance eventually sued the District of Columbia and
Officers Antonio, Acebal, and Morales claiming the police
essentially arrested her for “contempt of cop,” Appellee’s Br.
at 1, and that the government knew or should have known
about its officers’ habits of doing so and failed to train them
properly. After a few weeks of trial, the jury found that
Officer Antonio and Officer Acebal committed the tort of
false arrest and violated Huthnance’s First and Fourth
Amendment rights, that Officer Acebal committed the tort of
assault and battery, and that the District was deliberately
indifferent to citizens’ First and Fourth Amendment rights.1
The jury found Morales was not liable on any of the counts.
The District and Officers Antonio and Acebal now appeal.

                                II

       During discovery, Huthnance asked the District to
produce “[a]ll Documents referring or relating to the arrest
and detention of Plaintiff (and any encounter that preceded
it) . . . including, without limitation, any police reports,
witness statements, log entries, video recordings, post and
forfeit          paperwork,          and         all         radio
communications/transmissions relating to Plaintiffs [sic]
arrest, detention and transportation.” The District produced
the arrest report the officers prepared at the police station after
arresting Huthnance, the form Huthnance signed in jail that
entitled her to release, and a “Court Case Review Form.” The

    1
        Huthnance also claimed the officers misused the procedure
through which she was released from arrest, thereby violating her
Fifth Amendment rights. The jury found in her favor, but the
district court later vacated the verdict.
                               6
District later supplemented its response, stating, “As a result
of its search, the District has concluded that there are no radio
communications related to plaintiff’s arrest, however see
Attachment 21, radio log related to plaintiff’s arrest.” The
radio log in question listed the following information:

    AGENCY:              MPD
    DATE/TIME:           20051116020505ES
    DISPATCH DATE/TIME:  20051116020506ES
    UNIQUE ID:           5118642
    CASE NUMBER:         R2005155750
    ADDRESS:   3100 MOUNT PLEASANT ST NW

    Huthnance subsequently told the District she wanted to
depose someone about radio transmissions, so the District
produced a supervisor at its Office of Unified
Communications. See FED. R. CIV. P. 30(b)(6). The following
exchange occurred at the deposition:

    Q: [W]hen a requester wants to pull information
    about a call, how does your office—what
    information does your office use as the identifier to
    match up the request with the call?
    A: Usually the location, time and date.
    Q: You say “usually.” There’s times when you use
    other identifiers?
    A: Maybe the central complaint number, . . . the
    CCN number.
    Q: And the CCN number is the category on [the
    radio log] marked complaint number, I believe.
    A: No. They are two separate things.
    Q: So the CCN number, is that the case number on
    this [radio log]?
    A: No. It’s different.
                                7
    Q: Okay. So I don’t see CCN number on this radio
    [log], correct?
    A: Right.

Huthnance asked no follow-up questions, a decision she later
explained was the result of her conclusion that the radio log,
unconnected to her arrest, had been produced only because of
its relationship to the date, time, and location of her arrest. As
Huthnance pointed out, the address 3100 Mount Pleasant
Street corresponds to a liquor store down the street from
where she was arrested.

     This was the end of the matter until Officer Antonio
testified at trial that Huthnance’s arrest “was called into
dispatch” at 2:05 a.m. and that he knew the time because “[i]n
preparing for the trial, I observed a dispatcher’s report.” Trial
Tr. 64 (Mar. 11, 2011).      Huthnance filed, and the district
court granted, a motion in limine to block any further
testimony and evidence about the radio log. Later that day,
however, the appellants’ expert witness referenced the radio
log twice. First, explaining why the arrest report was not a
“perfect narrative,” he stated:

    [T]here have been certain inaccuracies, but minor,
    pointed out already in it. Dates—and I don’t say that
    the times—the times from the evidence that I’ve
    seen about the dispatch runs, they certainly
    corroborate the time on this particular document. So
    I don’t consider that a mistake or an inaccuracy.

Trial Tr. 116 (Mar. 14, 2011). Second, he testified the
typographical errors on the arrest report did not “negate the
lawfulness of the arrest” because “we know that from other
records that the event took place in the morning of the 16th of
                                8
October.” Id. at 121.2 Huthnance’s counsel approached the
bench to complain about the witness’s disregard of the court’s
order, and the appellants’ counsel apologized, noting that the
witness had in fact been instructed not to refer to the radio
log.

     The district court’s order granting Huthnance’s motion in
limine had also provided that Huthnance “is entitled to a
missing evidence instruction or, at her election at or before
the end of the trial, an instruction that Officer Antonio’s
testimony about the dispatch report be disregarded,” and
Huthnance ultimately invoked that provision, asking the court
to issue the missing evidence instruction. Over the District’s
objections, the court granted Huthnance’s wish and instructed
the jury it could infer the radio log was not introduced into
evidence either because it does not exist or because it would
have been unfavorable to the District and the officers’ case.

     The appellants challenge both the court’s decision to
exclude evidence relating to the radio log and its missing
evidence jury instruction. We review the district court’s
evidentiary rulings for abuse of discretion, see, e.g., Chedick
v. Nash, 151 F.3d 1077, 1084 (D.C. Cir. 1998), and we apply
the same standard to its articulation of jury instructions, Joy v.
Bell Helicopter Textron, Inc., 999 F.2d 549, 556 (D.C. Cir.
1993), and its threshold decision to issue a missing evidence
instruction, see Czekalski v. LaHood, 589 F.3d 449, 455 (D.C.
Cir. 2009). That said, we will reverse an erroneous
evidentiary ruling or jury instruction only if the error affects a
party’s substantial rights. See FED. R. CIV. P. 61.


    2
       The witness apparently misspoke since the log shows the
dispatch was recorded in 2005 on November 16 at 2:05:05 Eastern
Standard time.
                                 9
                                 A

     The district court did not abuse its discretion by
excluding evidence of the radio log.3 Before trial, the court
ordered the parties to file a joint statement describing, among
other things, “each exhibit to be offered in evidence.” Order
App’x A, No. 1:06-cv-01871 (D.D.C. Jan. 21, 2010). The
order stated that “[t]here is a strong presumption that any
exhibit not listed in accordance with this court’s order will not
be admitted at trial.” Id. The appellants admit they never
listed the radio log on their pretrial exhibit list. Nor do they
point to any place in the record suggesting they tried to amend
the exhibit list. True, the district court’s presumption was
ostensibly rebuttable, but the appellants also point to nothing
in the record suggesting they tried to rebut the presumption
and introduce the radio log.

     Instead, they tell us that “[a]ny prejudice to
Huthnance . . . was outweighed by the document’s importance
to the defense, especially the individual officers, and the
truth-seeking function of the jury,” particularly given that
Huthnance had possessed a copy of the radio log for over a
year before trial and the Rule 30(b)(6) deponent did not
represent the individual officers. Appellants’ Br. at 35. Given
the appellants’ apparent lack of interest in introducing
evidence “importan[t]” to their case, we find it hard to say the
district court abused its discretion by relying on the parties’
implicit representations about the utility of the available



    3
      The appellants allot only one paragraph to this argument and
barely mention the standard for reviewing district court evidentiary
decisions. See FED. R. APP. P. 28 (requiring appellant’s brief to
contain “for each issue, a concise statement of the applicable
standard of review”). Not a strong start.
                                    10
evidence4 or by enforcing a pretrial order the appellants
concede was proper. Nor do we think the district court abused
its discretion by consigning the consequences of exclusion to
the party that could have most easily prevented it. See Mem.
Op., No. 1:06-cv-01871, at 35 (D.D.C. July 19, 2011)
(suggesting the appellants could have avoided any problems
caused by the exclusion of the radio log simply by
“follow[ing] the rules”).

     That Huthnance possessed the radio log before trial is a
clever non sequitur: possession does not entail knowledge.
True, the context was such that Huthnance was on notice she
might need to investigate further, if only to shore up her stock
of impeachment evidence—for instance, by asking the
deponent or individual officers to compare the documents
directly. See 2 MCCORMICK ON EVIDENCE § 264 (7th ed.
2013) (“It is wiser to hold that if an argument on failure to
produce proof is fallacious, the remedy is the answering
argument and the jury’s good sense.”). But there is also no
evidence Huthnance acted in bad faith when, as the appellants
decry, she failed to notice independently that the eleven-digit
“case number” listed on the radio log (R2005155750)
comprised the central complaint number listed on the arrest
report (155750) preceded by the letter “R” and the four digit
year (2005). Since 2005 was obviously the year, the District’s
system was not particularly difficult to decipher. However,
not only did the District’s Rule 30(b)(6) deponent not link the

     4
       There is no reason to think the radio log was more than minimally
probative because, as the district court explained, “[t]here was no evidence
that the call to the dispatch happened contemporaneously with the arrest.”
Mem. Op., No. 1:06-cv-01871, at 33 (D.D.C. July 19, 2011). Officer
Antonio testified that officers are required to call arrests into dispatch
“upon making the arrest” and that Huthnance’s arrest was called into
dispatch at 2:05 a.m., Trial Tr. 63–64 (Mar. 11, 2011), and the appellants
point to no other evidence in the record that would bear on the matter.
                               11
radio log to Huthnance’s arrest, a fact the appellants
acknowledge, but he effectively denied the numeric overlap.

                               B

    Once it excluded the radio log and related evidence,
however, the district court erred by issuing the missing
evidence instruction.

                               1

     The missing evidence rule provides that “when a party
has relevant evidence within his control which he fails to
produce, that failure gives rise to an inference that the
evidence is unfavorable to him.” Int’l Union, United Auto.,
Aerospace & Agricultural Implement Workers of America
(UAW) v. NLRB (“Int’l Union”), 459 F.2d 1329, 1336 (D.C.
Cir. 1972). The idea is that “all other things being equal, a
party will of his own volition introduce the strongest evidence
available to prove his case.” Id. at 1338. Thus, “[t]he
production of weak evidence when strong is available can
lead only to the conclusion that the strong would have been
adverse. Silence then becomes evidence of the most
convincing character.” Interstate Circuit v. United States, 306
U.S. 208, 226 (1939) (internal citations omitted).

     Pushed to its outer limits, this logic suggests any failure
to introduce ostensibly relevant evidence warrants an adverse
inference. The missing evidence rule does not go so far. We
have, for instance, denied the inference where the evidence
was not “peculiarly within the power of one party.” Czekalski,
589 F.3d at 455 (internal quotation marks omitted). Thus
circumscribed, the rule serves a practical function—whether
efficiency, deterrence, cost allocation, or otherwise. See, e.g.,
Int’l Union, 459 F.2d at 1338–39.
                               12

     We have likewise proscribed the inference when its
premises do not obtain, such as when there are innocuous
explanations for the party’s failure to introduce the evidence.
Explanations might range from “[c]onsiderations of strategy,
economy and logistics, reinforced by the rule against
cumulative evidence,” United States v. Pitts, 918 F.2d 197,
199 (D.C. Cir. 1990), to the judge’s or other party’s role in
suppressing the evidence or the party’s belief “his opponent
has failed to meet his burden of proof,” Int’l Union, 459 F.2d
at 1338. The missing evidence rule is unavailable, for
example, where the evidence in question is constitutionally
protected. See, e.g., id. at 1339 n.45.

     The rule is thus “disappointingly free of mystery and
mumbo-jumbo.” Id. at 1335. Though its roots dig deeper than
Blackstone, see, e.g., 2 WILLIAM BLACKSTONE,
COMMENTARIES *368, the rule is “more a product of common
sense than of the common law.” Int’l Union, 459 F.2d at
1335. At bottom, the question is whether an adverse inference
is “natural and reasonable.” United States v. Craven, 458 F.2d
802, 805 (D.C. Cir. 1972); see 2 WIGMORE, EVIDENCE
§§ 285–90 (James H. Chadbourn rev., 1979). If not, then it
does not matter that the doctrine’s prerequisites are otherwise
satisfied. See United States v. Norris, 873 F.2d 1519, 1522
(D.C. Cir. 1989).

    The district court plays an important role in this regard. It
must “determine whether a jury could appropriately deduce
from the underlying circumstances the adverse fact sought to
be inferred.” Burgess v. United States, 440 F.2d 226, 237
(D.C. Cir. 1970) (Robinson, J., concurring); see id. at 234
(opinion of Fahy, J.); Brown v. United States, 414 F.2d 1165,
1167 (D.C. Cir. 1969). As our standard of review makes
manifest, this gatekeeping function entails a fair amount of
                                  13
discretion. But in exercising that discretion, a district court
may not abandon its post at the bulwarks of our justice
system. Because the missing evidence instruction deals not
with evidence but with its absence, “there is the danger that
the instruction permitting an adverse inference may add a
fictitious weight to one side or another of the case.” Burgess,
440 F.2d at 234 (opinion of Fahy, J.). Court instructions have
the weight of law, whether they require or merely permit the
inference, id. at 235, so the court should not thumb the scales
unnecessarily. Sometimes, to be sure, evidence is so strong a
party would be crazy not to introduce it. But when it would be
inappropriate to draw an adverse inference, the district court
should not instruct the jury it may do so.

     Such was the case here. The District gave Huthnance a
copy of the radio log during discovery and affirmatively (if
somewhat ambiguously) stated that the log “related to
plaintiff’s arrest”; and though its Rule 30(b)(6) deponent
erroneously failed to link the log to the arrest report,5 the
deponent’s statements did not necessarily mean the log was
irrelevant or, if it was, that the District did not believe
otherwise. The district court knew all this.6 By listing the

     5
       Whether in fact the radio log sheds light on Huthnance’s
arrest would not ordinarily be for us to decide, but Huthnance
effectively conceded the log’s relationship to the arrest report at
oral argument. See Oral Arg. 12:24–12:51.
     6
       We make no claim about whether the radio log was
“peculiarly” within the appellants’ control. At oral argument,
Huthnance suggested for the first time that the log was
“constructively missing evidence” insofar as Huthnance’s
ignorance about the log’s relevance means it was effectively within
the appellants’ peculiar control. Oral Arg. 26:49–29:37. This has
some force. We, along with other circuits, have interpreted the
“peculiar availability” requirement of the analogous missing
witness instruction in a practical, not just physical, sense. See, e.g.,
                                14
dispatch time as 2:05 a.m., November 16, the log tended to
support the appellants’ claims about what time everything
happened. The district court knew this, as well. And once the
court excluded the log, the appellants could not (try to)
introduce it even if they wanted to. We cannot squeeze an
adverse inference from these facts; there is simply no
evidence the District—the only appellant subject to any
charges of fault—sought to hide the ball. Nor, on the facts of
this case, would a missing evidence instruction serve any
useful function. Quite the opposite. Condoning the missing
evidence instruction here would incentivize gamesmanship.
See Burgess, 440 F.2d at 239 (Robb, J., concurring); United
States v. Comulada, 340 F.2d 449, 453 (2d Cir. 1965). As we
noted above, Huthnance’s ignorance about the log’s relevance
appears to have been a misunderstanding she could have
avoided simply by looking more closely at it or by asking a
few more questions.

      Pointing to the district court’s statement that “the District
is having sanctions imposed against it for their conduct in the
case,” Trial Tr. 13 (Mar. 23, 2011), Huthnance maintains the
missing evidence instruction was nevertheless an appropriate
trial-management device. Yet even assuming the court’s
reference to sanctions in fact referred to the missing evidence

United States v. Young, 463 F.2d 934, 942 (D.C. Cir. 1972);
Sagendorf-Teal v. County of Rensselaer, 100 F.3d 270, 275 (2d Cir.
1996); Oxman v. WLS-TV, 12 F.3d 652, 661 (7th Cir. 1993); United
States v. Spinosa, 982 F.2d 620, 632 (1st Cir. 1992); United States
v. Blakemore, 489 F.2d 193, 195 (6th Cir. 1973). But in light of
Huthnance’s failure to make this argument earlier, see, e.g., United
States v. Southerland, 486 F.3d 1355, 1360 (D.C. Cir. 2007), her
emphasis that her “principal argument” is that the instruction was a
sanction, Oral Argument 29:52–30:37, and our conclusion that an
adverse inference was nevertheless inappropriate here, we can leave
that question unresolved.
                                 15
instruction—which is not at all clear7—the record offers no
indication why any additional sanction was needed once the
radio log had been excluded. Officer Antonio’s testimony did
not violate the district court’s pretrial order, which prohibited
the parties only from introducing certain “exhibits,” or the
exclusion order, which had not yet been entered; nor is there
evidence suggesting the appellants knew their expert would
reference the log. To the contrary, the only record evidence on
the matter is appellants’ counsel’s statements to the court that
he had in fact instructed the witness about the exclusion order.

     Huthnance advances an alternative reason why the
testimony was improper and therefore necessitated the
missing evidence instruction: it violated the federal rules of
evidence—in particular, the rule against hearsay and the best

     7
       The court’s reference was vague, and the only other time it
invoked the concept of evidentiary sanctions was in a post-trial
discussion about excluding evidence in which it also declined to
describe its exclusion order as a sanction. As may be evident from
our discussion, the district court did not clearly explain why it
issued the missing evidence instruction. The instruction made its
first appearance in the case when Huthnance filed the motion in
limine to exclude the radio log and requested one of two possible
curative instructions. After oral argument at which neither party
discussed the instructions, the court adopted Huthnance’s proposed
order—which empowered her to decide which instruction would be
given—basically unchanged. Later, Huthnance included a missing
evidence instruction in her proposed jury instructions, and after oral
argument, the court again decided to issue the instruction. The court
did so, however, at the same time it ruled on a different proposed
instruction, so the only clues it provided about its thought process
were its comment about sanctions and its recognition that the
instruction would be “very damaging” to the individual defendants
who had nothing to do with the Rule 30(b)(6) deposition mix-up,
Trial Tr. 10 (Mar. 23, 2011), which of course is a reason not to
issue the instruction.
                               16
evidence rule. We remain unpersuaded. The missing evidence
instruction is not a panacea for evidentiary errors. If Officer
Antonio’s or the expert witness’s testimony violated the rules
of evidence, Huthnance should have objected, and if
sustained, that would have presumably afforded a sufficient
remedy—particularly if accompanied by a simple instruction
to disregard the testimony.8 Though she now insists
otherwise, Huthnance implicitly acknowledged the
sufficiency of that approach when, in her motion to exclude
the radio log, she asked the court either to issue a missing
evidence instruction or to instruct the jury to disregard Officer
Antonio’s testimony about the log; she then doubled down on
that position after trial when she suggested to the district court
that the jury “carefully adhered to its instructions,” Plaintiff’s
Opp. to Defendants’ Post-Trial Mot., No. 1:06-cv-01871, at
18 (D.D.C. May 26, 2011). Huthnance made the strategic
decision to seek exclusion of the evidence without the jury’s
knowledge, see Oral Arg. 15:04–15:25, and to complain in a
sidebar discussion about the expert witness’s violation of the
exclusion order, see, e.g., Trial Tr. 121 (Mar. 14, 2011). That
was her choice.

                                2

     A court confronting a trial error must ask whether the
error substantially affected the outcome of the case. If the
court cannot say with fair assurance the error was harmless, it
must conclude the error was not. See Williams v. U.S.
Elevator Corp., 920 F.2d 1019, 1022–23 & n.5 (D.C. Cir.
    8
       Though we have acknowledged that “objection cannot
always procure realistic cure for damage,” United States v. Young,
463 F.2d 934, 940 (D.C. Cir. 1972), an objection—particularly one
accompanied by judicial instruction—may sometimes suffice. See
United States v. Foster, 557 F.3d 650, 656 (D.C. Cir. 2009);
Gaither v. United States, 413 F.2d 1061, 1080 (D.C. Cir. 1969).
                              17
1990). This analysis depends on a number of factors,
including the closeness of the case, the centrality of the issue
in question, and the effectiveness of any steps taken to
mitigate the effects of the error. See Carter v. District of
Columbia, 795 F.2d 116, 132 (D.C. Cir. 1986).

      The parties’ accounts of what happened differ materially,
and the evidence at trial was equivocal, tending to corroborate
both parties’ positions. Yet the radio log was not central to
this credibility dispute because only the jury’s findings about
what happened were outcome determinative, and the log was
relevant only because it tended to corroborate the appellants’
claims about when everything happened. The jury could have
determined that everything happened at 2 a.m. but still found
for Huthnance, or it could have determined that everything
happened at midnight but still found for the appellants. See
Appellants’ Br. at 50 (arguing Huthnance breached the peace
by disturbing people who were likely asleep in their
apartments, “whether it was midnight or 2:00 a.m.” (emphasis
added)). It likewise could have determined the radio log had
little bearing on which party’s story was correct because, as
we noted above, the log did not necessarily make a claim
about when the arrest happened. See supra note 4. The
missing evidence instruction called the jury’s attention to all
of these distinctions by framing the log’s relevance in terms
of its alleged ability to “show[] the time that the arresting
officers reported Ms. Huthnance’s arrest,” Jury Instructions,
No. 1:06-cv-01871, at 3 (D.D.C. March 24, 2011) (“Jury
Instructions”).

      In a slightly different case, we might have concluded the
instruction was nevertheless prejudicial: notwithstanding the
log’s relevance to the case before trial, the instruction might
have mattered in light of what happened at trial. In this case,
                                   18
however, it did not.9 First, District police sergeant Michael
Smith—who, Officer Antonio testified, was generally present
at the time of the incident—testified in a deposition
Huthnance introduced at trial that he saw Officers Antonio
and Acebal at the 7-Eleven “maybe around 12:00 o’clock at
night” and that he saw them talking to “some lady” and “a
guy” a few businesses away from the 7-Eleven. Trial Tr. 128
(Mar. 9, 2011). Sergeant Smith did not recall the woman
“yelling and screaming in the 7-Eleven” or otherwise doing
anything that would “get [his] attention at all,” and he
testified he could not hear their voices from about fifty feet
away. Id. at 129–30. Yet the appellants have not pointed to
any place in the record where they refuted his apparently
neutral testimony or explained it away.

     Second, the district court also issued a missing witness
instruction—an instruction of the same doctrinal vintage as
the missing evidence instruction—about two eyewitnesses the
appellants identified but who never testified at trial,10 and the
appellants have offered no reason to think the jury would have
drawn an adverse inference about the radio log but not the
missing witnesses. See Shinseki v. Sanders, 556 U.S. 396, 409
(2009) (“[T]he party that seeks to have a judgment set aside
because of an erroneous ruling carries the burden of showing
that prejudice resulted.” (internal quotation marks omitted)).

    9
       It is suggestive that Huthnance’s counsel all but ignored the
timing dispute during closing argument, expressly telling the jury
that timing was irrelevant. He apparently did not think the jury’s
decision would be swayed by the appellants’ failure to introduce the
log. The appellants’ counsel implicitly agreed when he only briefly
mentioned the issue and only as an avenue to insight about
Huthnance’s general credibility and the likelihood that she was
drunker than she thought.
    10
         The appellants do not challenge this instruction.
                                    19
Needless to say, those witnesses would have testified about
more than just the time the officers phoned in Huthnance’s
arrest. So not only did the missing witness instruction—unlike
the missing evidence instruction—go to the heart of the
factual dispute, but even without the missing evidence
instruction, the jury would still have been instructed it could
draw an inference adverse to the appellants about the very
same issue implicated by the missing evidence instruction.

                                    III

     At the time of Huthnance’s arrest, the District’s
disorderly conduct statute prohibited “shout[ing] or mak[ing]
a noise either outside or inside a building during the nighttime
to the annoyance or disturbance of any considerable number
of persons,” but only if someone did so “with intent to
provoke a breach of the peace, or under circumstances such
that a breach of the peace may be occasioned thereby.” D.C.
CODE § 22-1321 (1981); see In re T.L., 996 A.2d 805, 809–10
(D.C. 2010).11 The district court paraphrased this statute to the
jury and explained that it could find Huthnance intended, or
was likely, to breach the peace only if she (i) “[w]as so

    11
         In relevant part, the statute provided:
    Whoever, with intent to provoke a breach of the peace, or
    under circumstances such that a breach of the peace may
    be occasioned thereby: . . . (3) shouts or makes a noise
    either outside or inside a building during the nighttime to
    the annoyance or disturbance of any considerable number
    of persons . . . shall be fined not more than $250 or
    imprisoned not more than 90 days, or both.
The District later revamped the statute. The law now prohibits,
among other things, “unreasonably loud noise between 10:00 p.m.
and 7:00 a.m. that is likely to annoy or disturb one or more other
persons in their residences.” D.C. CODE § 22-1321(d).
                               20
unreasonably loud as to unreasonably intrude on the privacy
of a captive audience, or so loud and continued as to offend a
reasonable person of common sensibilities and disrupt the
reasonable conduct of basic nighttime activities such as
sleep,” and (ii) “[d]id wake, or was likely to wake a
considerable number of people from sleep, or did intrude, or
was likely to intrude on the reasonable expectation of
tranquility in the home of a considerable number of people.”
The appellants believe this explanation of the breach-of-peace
element misstated the law “because it focused on a captive
audience and the disruption of sleep or the tranquility of the
home.” Appellants’ Br. at 47. They argue that because breach
of peace under District law turns on the totality of
circumstances, the disorderly conduct statute can be triggered
by “the disruption of traffic and profanely loud and boisterous
behavior that causes people to gather, especially late at night.”
Id. at 49.

     We think any error infecting the district court’s breach-
of-peace jury instruction was harmless. The appellants bear
the burden of showing prejudice, so we are particularly struck
by their theory of the case (and sole argument on appeal),
according to which Huthnance breached the peace by
“causing a scene that prompted a bus to stop and forced other
traffic to slow down or detour around the bus, disturbed
people in their apartments . . . so that they turned on the lights
and looked out the window, and caused as many as thirteen
people to gather on the sidewalks.” Id. at 50. If the jury had
believed this, it would have found for the appellants even
under the allegedly erroneous jury instruction, so the
appellants’ claim to prejudice depends on showing the jury
might have credited their evidence about the rubbernecking
but not their evidence about activity in the nearby
apartments—and that the jury might therefore have found for
Huthnance. See Joy, 999 F.2d at 557 (“[I]t is specious to
                               21
claim that the district court’s jury instructions prevented the
jury from reaching a verdict for Allison if the jury agreed with
Allison’s theory of the case. If the jury adopted Allison’s
view . . . it could have held for Allison . . . .”); cf. United
States v. Johnson, 216 F.3d 1162, 1166 (D.C. Cir. 2000)
(“Where there has been an error in instructions, we have held
such error to be harmless if the jury necessarily found facts
that would have satisfied a proper instruction.”). The evidence
did not preclude the jury from crediting only a subset of the
appellants’ evidence, but not only have the appellants
proffered no reason to think this credibility distinction is
anything other than theoretical, they have given us little
reason to think the jury could or would have parlayed the
distinction into a favorable verdict.

     The appellants have pointed to no evidence that supports
their claims about the rubbernecking without also supporting
their claims about the neighbors waking up. The arrest report
mentioned neither event, and the officers testified about both.
Given that the officers’ testimony is the only evidence the
appellants adduced that positively supports their account, the
jury had every reason to take the evidence of rubbernecking
and disturbed neighbors as the appellants presented it: all or
nothing. The “all,” moreover, started weak and ended weaker.
The officers failed to present a unified front at trial about the
rubbernecking, Huthnance’s counsel subjected the officers to
a rigorous cross-examination that exposed a number of
inconsistencies in their testimony, and the general credibility
of the officers’ account took a hit when the district court
issued the missing witness instruction.

    At no point in this process would the jury have had any
reason to distinguish between the officers’ testimony about
rubbernecking and the officers’ testimony about the sleepy
neighbors. Few of the inconsistencies in the officers’
                              22
testimony related to rubbernecking and the neighbors, so we
doubt that only the officers’ credibility about the neighbors
suffered damage; the strikes by Huthnance’s counsel were not
so targeted. The jury could not have distilled the
inconsistencies into a single conclusion about the likelihood
that Huthnance disturbed the neighbors’ slumber. More
plausibly, the jury, considering the officers’ credibility both
generally and with respect to individual pieces of testimony,
drew conclusions about the officers’ testimony that swept
more broadly. And the missing witness instruction certainly
drew no distinction between the constituent pieces in the
officers’ story. If the jury did not believe Huthnance woke up
the neighbors, in other words, it was not because of any
evidence unique to the officers’ account of those—or any
other—facts.

                              IV

    For the reasons stated, the district court’s judgment is

                                                      Affirmed.
     KAVANAUGH, Circuit Judge, dissenting: The Court
concludes that the missing evidence instruction given at trial
was not appropriate. I agree with that conclusion. The next
question is whether that error was harmless. The District
Court itself recognized that the missing evidence instruction
would be “very damaging” to the defendants if the District
Court were to give it (as the District Court ultimately did). I
agree with that assessment. Because the missing evidence
instruction was not appropriate here and because it was “very
damaging” to the defendants, I would vacate the judgment
and remand for a new trial.
