 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued December 10, 2015          Decided September 2, 2016

                       No. 12-3029

               UNITED STATES OF AMERICA,
                       APPELLEE

                             v.

                RICO RODRIGUS WILLIAMS,
                      APPELLANT


                Consolidated with 13-3058


       Appeals from the United States District Court
               for the District of Columbia
                  (No. 1:09-cr-00026-1)


    A.J. Kramer, Federal Public Defender, argued the cause
and filed the briefs for appellant. Jonathan S. Jeffress,
Assistant Federal Public Defender, entered an appearance.

    Lauren R. Bates, Assistant U.S. Attorney, argued the
cause for appellee. On the brief were Vincent H. Cohen, Jr.,
Acting U.S. Attorney, and Elizabeth Trosman and Stratton C.
Strand, Assistant U.S. Attorneys.
                               2

    Before: HENDERSON,        GRIFFITH,    and   KAVANAUGH,
Circuit Judges.

    Opinion for the Court filed by Circuit Judge GRIFFITH.

    Concurring opinion filed by Circuit Judge KAVANAUGH.

    Opinion concurring in part and dissenting in part filed by
Circuit Judge HENDERSON.

     GRIFFITH, Circuit Judge: Army Sergeant Juwan Johnson
died in July 2005 after participating in a violent hazing ritual
near Ramstein Air Force Base in Germany. A jury convicted
appellant Rico Williams of second-degree murder and witness
tampering for his role in the hazing and in covering up
information about Johnson’s death. We affirm Williams’s
conviction for witness tampering, but we reverse his murder
conviction.

                               I

     Rico Williams was stationed at Ramstein Air Force Base
as an Airman in the United States Air Force starting around
2001. He was discharged for medical reasons in May 2005
but remained at Ramstein as a dependent of his wife, Octavia,
who was also an Airman. Williams was the leader, or
“governor,” of a group that went by various names: “BOS,”
“Brothers of the Struggle,” or “Gangster Disciples.” (For
simplicity, this opinion will refer to the group as the BOS.)
The BOS was made up of members of the U.S. Army and Air
Force at Ramstein but was not affiliated with the military.
Expert evidence at trial connected the BOS to the Gangster
Disciples, an American gang with roots in Chicago and
individual “sets,” or local groups, around the world. Although
members of the BOS often got into fistfights, the
                               3

government’s witnesses testified at trial that they did not
engage in any other criminal activity.

     The BOS did, however, regularly initiate new members
by beating them up in a ritual known as a “jump-in.” During a
typical jump-in, approximately six members of the BOS hit
the initiate for about six minutes. Blows were to be landed
only between the neck and the waist, and the initiate was
forbidden from defending himself in any way. During the
jump-in, the initiates were asked repeatedly if they wanted to
proceed. If they said no, the initiation ended. After a jump-in,
the new member would be hugged, kissed on the cheek,
shown the BOS handshake, and taken out to celebrate. The
BOS had performed around fifteen to eighteen jump-ins
before Johnson’s; in none had a new member been
hospitalized or killed.

     Johnson’s jump-in took place on the night of July 3,
2005, at a brick-floored hut near the Ramstein base. Nicholas
Sims, who was second in command to Williams in the BOS,
testified for the government that nine people participated in
Johnson’s jump-in—more than the usual six. Sims recalled
that Williams asked Johnson whether he wanted to begin.
Johnson responded: “Hell yeah.” Williams asked him again,
and he again replied: “Hell yeah.” Then Williams punched
Johnson in the face. Johnson fell immediately, but stood
again. Asked if he wanted to continue, he repeated: “Hell
yeah.” Williams again punched him in the face. The group
then began hitting him below the neck and above the waist.
After two or three minutes, the group stopped while Williams
and Sims, as the top-ranking members of the BOS, continued
to pummel Johnson for the next minute. The other members
then joined in again on the beating.
                              4

     Another government witness, Themetrious Saraglou,
similarly testified that Williams asked Johnson before the
beating began if “he was sure he wanted this,” and that
Johnson said: “Hell yes.” Saraglou further testified that
throughout the jump-in, when Johnson fell, he was asked:
“Do you want this?” He “would reply and say, ‘yeah,’ or ‘hell
yeah,’ or even ‘f*** yeah.’” Saraglou testified that by about
halfway through the beating, Johnson wasn’t as “hyper” as he
had been at the beginning; he began responding simply
“yeah,” instead of “hell yeah.” At some point, Johnson was
held up as members continued to hit him repeatedly. At
another point, members kicked Johnson while he was on the
ground. No kicking had occurred at prior jump-ins. When the
six minutes were up, the timekeeper had to yell “time” three
times before the beating stopped. As a result, the jump-in
lasted longer than usual.

     Johnson never lost consciousness during the jump-in and
though his mouth was bleeding, Johnson showed no other
visible sign of serious injury when it ended. According to
Sims, Johnson was exhausted and walking “like a drunk
person, but by himself.” Saraglou testified that Johnson was
walking slowly and said he was too sore to go out to celebrate
with the others. Williams directed BOS members to take
Johnson home and charged Florentino Charris with watching
him overnight. Charris testified that around midnight, Johnson
was slurring his speech and having trouble walking.
Sometime later, Johnson asked to go to the hospital. Instead
of taking him to the hospital, Charris relayed Johnson’s
request to another BOS member, who called Williams.
Williams said not to take him. Charris followed Williams’s
direction, but told Johnson to let him know if he needed
anything. Charris fell asleep in the room with Johnson. When
he woke up in the morning, Johnson was dead.
                              5

     An autopsy revealed injuries to Johnson’s brain and
heart. These “blunt force injuries” inflicted during the
initiation caused Johnson’s death, according to the
government’s medical expert at trial. By contrast, the
defense’s medical expert opined that the underlying cause of
death was sickle-cell trait, a typically asymptomatic genetic
condition, and that “superficial blunt impact injuries” were
merely a “contributing” cause.

     Two days following Johnson’s death, Williams moved
back to the United States. He was arrested in Virginia in
February 2009 and charged with four counts in relation to
Johnson’s death, one of which the district court dismissed
partway through trial. Of the remaining three, the first count
was second-degree murder under the Military Extraterritorial
Jurisdiction Act of 2000 (MEJA), which provides federal
jurisdiction over crimes committed by a civilian
accompanying the Armed Forces outside the United States.
See 18 U.S.C. § 3261 et seq.

     The two other counts charged that Williams had
tampered with witnesses in violation of 18 U.S.C.
§ 1512(b)(3). One alleged that Williams made a threat to Sims
and three other BOS members at a cookout the day after
Johnson died. According to Sims, Williams told them that if
questioned by the authorities, they were to say that Johnson
died because “Turkish people jumped” him. Williams also
threatened that they would be “basically done for” if they told
the truth about Johnson’s death. Sims testified that he took
this threat to mean Williams would kill anyone who told the
truth. Trial Tr. 36-37 (Oct. 25, 2010). The other tampering
count alleged that Williams called Saraglou from the United
States later that month and told him to order Sims to cover up
a tattoo that signaled gang membership.
                              6

     In November 2010, a jury found Williams guilty of
second-degree murder and one count of witness tampering
based on his threat to Sims (but not to any others). The jury
acquitted Williams of the tampering count related to Sims’s
tattoo. In April 2012, Williams was sentenced to 22 years’
imprisonment on the murder conviction and a concurrent 10
years’ imprisonment for witness tampering. The court also
ordered restitution of $756,000.

     Williams moved for judgment of acquittal on the murder
and witness-tampering counts. As for the murder count, he
argued that the evidence was insufficient to establish that the
requirements of MEJA were met or that he had the state of
mind required for a murder conviction. The district court
denied that motion. See United States v. Williams, 825 F.
Supp. 2d 117, 118-19 (D.D.C. 2011). Williams also moved
for a new trial on the grounds that the government misstated
the law during closing argument and that the district court
made several incorrect evidentiary rulings. The district court
denied these motions, too.

     On appeal, Williams contends that the evidence was
insufficient to convict him of murder. He also argues that a
prosecutorial misstatement of law during closing argument
substantially prejudiced his trial. He further challenges three
evidentiary rulings by the district court and various other
alleged prosecutorial errors. We have jurisdiction under 28
U.S.C. § 1291 and 18 U.S.C. § 3742(a).
                                  7

                                  II

     We begin with Williams’s challenges to the sufficiency
of the government’s evidence at trial. 1 He maintains that the
prosecution failed to prove that he was “residing with” a
member of the U.S. military and that he was not a “national of
or ordinarily resident in” Germany at the time the offense
occurred, as required to establish federal jurisdiction under
MEJA. 18 U.S.C. § 3267(2). Further, he argues that the
evidence was insufficient to find that he had the requisite state
of mind for second-degree murder.

     Our review is highly deferential: we must accept the
jury’s verdict if “any rational trier of fact” could have found
the elements of the crime beyond a reasonable doubt. United
States v. Battle, 613 F.3d 258, 264 (D.C. Cir. 2010). We view
the evidence in the light most favorable to the government,
drawing no distinction between direct and circumstantial
evidence, and “giving full play to the right of the jury to
determine credibility, weigh the evidence and draw justifiable
inferences of fact.” Id. Examined through this deferential lens,
Williams’s sufficiency-of-the-evidence arguments fail.

     1
       Although we reverse Williams’s murder conviction on the
basis of trial error, we nevertheless choose to address his challenges
alleging evidentiary insufficiency. If we conclude that the evidence
was insufficient to convict Williams of murder, his retrial would be
barred under the Double Jeopardy Clause of the Fifth Amendment.
See United States v. Williams, No. 13-3019, slip op. at 46 (D.C. Cir.
July 8, 2016) (addressing sufficiency-of-the-evidence arguments
after reversing conviction for trial error); Hoffler v. Bezio, 726 F.3d
144, 162 (2d Cir. 2013) (explaining that our sister circuits “are
unanimous in concluding that such review is warranted, at a
minimum, as a matter of prudent policy”).
                               8

                               A

      At trial, the government was required to prove beyond a
reasonable doubt that Williams met the elements of MEJA,
which provides for federal jurisdiction over crimes committed
by civilians accompanying a member of the Armed Forces
abroad. See 18 U.S.C. §§ 3261, 3267(2). A defendant meets
the statutory criteria for “accompanying” a military member
if, at the time the crime occurred, he was: (1) a dependent of a
member of the Armed Forces; (2) “residing with” that
member outside the United States; and (3) “not a national of
or ordinarily resident in the host nation.” Id. § 3267(2).
Williams contends that the government failed to prove the
second and third elements of MEJA.

     Although the question is close, the evidence was
sufficient for a rational juror to find beyond a reasonable
doubt that Williams was “residing with” his wife Octavia, a
member of the Air Force, when the crime occurred on July 3,
2005. Three of the government’s witnesses testified that
Williams lived with Octavia. One of those witnesses, Charris,
further testified that sometime after he joined the BOS in
April or May 2005, he attended a meeting at Williams’s house
and saw Octavia there. However, no witness said that
Williams lived with Octavia at the time of Johnson’s death.
Complicating matters, government witness Sims testified on
cross examination that Williams was having marital problems
in June 2005. Asked whether Williams was “moving around
and staying with” other people during this interval, Sims
responded that he was. Trial Tr. 29 (Oct. 26, 2010). He did
not identify where exactly Williams was staying but said that
Williams was “all over the place.” Id. Williams left Germany
and moved back to the United States on July 6, 2005.
                               9

     This evidence meets the low bar required to defeat a
sufficiency-of-the-evidence challenge. As the district court
reasoned, a rational juror could have determined that Charris
joined the group as late as the end of May 2005 and,
therefore, that the meeting at Williams’s house where Octavia
was present took place in June or early July 2005. A juror
could rationally infer from this evidence that Williams resided
with his wife on July 3, 2005. Moreover, the government’s
witnesses offered unqualified testimony that Williams lived
with Octavia. A rational juror could infer that one of the
witnesses would have qualified his testimony had Williams
moved out before the jump-in. Cf. United States v. Lamy, 521
F.3d 1257, 1268 (10th Cir. 2008) (holding that a jury may
rationally infer from testimony that a house “is” within Indian
country that the house was “within reservation boundaries at
all times within the knowledge of the[] witnesses”). Taken
together, this evidence was sufficient to permit a rational juror
to find beyond a reasonable doubt that Williams resided with
his wife at the time of Johnson’s death.

     Sims’s statement that Williams was staying with other
people in June 2005 may appear to cloud the picture.
However, the jury was entitled to discredit that testimony. See
United States v. Jenkins, 928 F.2d 1175, 1178 (D.C. Cir.
1991) (“Credibility determinations may rest on a witness’s
demeanor and, for that reason, are for the jury, not us.”). And
even those jurors who believed Sims could have inferred that
Williams resided with Octavia at the time of Johnson’s death.
Because MEJA does not define “residing,” we give the term
its ordinary meaning. See Alabama v. North Carolina, 560
U.S. 330, 340 (2010). To “reside” is “[t]o dwell permanently
or for a considerable time” or “to have one’s settled or usual
home in or at a particular place.” OXFORD ENGLISH
DICTIONARY (2d ed. 1989) (emphasis omitted). A person can
                              10

have more than one residence. See United States v.
Venturella, 391 F.3d 120, 125 (2d Cir. 2004); Eastman v.
Univ. of Mich., 30 F.3d 670, 673 (6th Cir. 1994). Thus, even
jurors who credited Sims’s testimony that Williams was
“staying” with other people in June 2005 could have
determined that Williams still “resided” with his wife—either
because he resided with her but was temporarily staying
elsewhere, or because he resided in multiple places. Where
the evidence can support “varying interpretations, at least one
of which is consistent with” the jury’s verdict, we must defer
to that verdict. United States v. Ayewoh, 627 F.3d 914, 919
(1st Cir. 2010) (emphasis omitted).

     We similarly reject Williams’s argument that the
evidence was insufficient to prove that he was not a “national
of” or “ordinarily resident in” Germany at the time of
Johnson’s death. 18 U.S.C. § 3267(2)(C). As proof of
nationality, the government introduced a questionnaire that
Williams completed as part of a 1996 application for a
national-security position. Williams checked the box
indicating that he was a U.S. citizen or national by birth. He
wrote “NA” in the section of the questionnaire that inquired
about dual citizenship. Williams contends that the
government’s evidence establishes only that he was not a
German national in 1996. It says nothing about whether he
was a “national of” Germany on the date of Johnson’s death
in 2005.

     The evidence of Williams’s nationality is indeed dated.
But as explained in a leading treatise on the law of evidence,
“[w]hen the existence of an object, condition, quality, or
tendency at a given time is in issue,” its “prior existence” can
indicate that it “persist[ed] or continu[ed] at a later period.”
United States v. Stuart-Caballero, 686 F.2d 890, 893 (11th
                                 11

Cir. 1982) (per curiam) (quoting 2 WIGMORE, EVIDENCE
§ 437(1) (Chadbourn rev. 1979)). The likelihood that a
condition persists

    depends on the chances of intervening circumstances
    having occurred to bring the existence to an end. The
    possibility of such circumstances will depend almost
    entirely on the nature of the specific thing whose
    existence is in issue and the particular circumstances
    affecting it in the case in hand. That a soap bubble was in
    existence half an hour ago affords no inference at all that
    it is in existence now; that Mt. Everest was in existence
    ten years ago is strong evidence that it exists yet[.]

Id. In our view, nationality falls closer to the Mount Everest
end of the spectrum. An individual’s nationality, while not
immutable, does not ordinarily change over the course of a
nine-year period. 2 Thus, knowing that Williams was not a
German national in 1996, a juror could rationally infer that he
was not one in 2005.

    The evidence was also sufficient to prove that Williams
was not “ordinarily resident in” Germany. Again giving this
undefined term its ordinary meaning, we note that

    2
       For this reason, this case does not resemble those in which
our sister circuits have held that years-old certificates cannot
establish that a bank was federally insured at the time of an alleged
offense. See, e.g., United States v. Ali, 266 F.3d 1242 (9th Cir.
2001); United States v. Shively, 715 F.2d 260 (7th Cir. 1983);
United States v. Platenburg, 657 F.2d 797 (5th Cir. 1981). A bank’s
federally insured status lapses if premiums are not paid. See Stuart-
Caballero, 686 F.2d at 893.
                               12

“ordinarily” means “usually.” OXFORD ENGLISH DICTIONARY
(2d ed. 1989). MEJA thus envisions that a person
“accompanying the Armed Forces” in a host country resides
in that country as a military dependent, but is not usually
resident there. In other words, he lives there because of his
connection to the military rather than because of other
significant “local ties.” Daneshpayeh v. Dep’t of Air Force,
17 F.3d 1444, at *2 (Fed. Cir. 1994) (unpublished) (approving
an agency finding that a civilian Air Force employee was
“ordinarily resident in” Turkey because he had “profound
local ties” there). This interpretation also accords with
Congress’s intent in enacting MEJA, which was to permit the
United States to try crimes committed by civilians connected
to the military while simultaneously “recogniz[ing] that the
host nation has the predominant interest in exercising criminal
jurisdiction over its citizens and other persons who make that
country their home.” H.R. REP. 106-778, pt. 1, at 21 (2000).

     We further observe that before the passage of MEJA, the
term “ordinarily resident” was used in Status of Forces
agreements—treaties governing the duties and privileges of
countries that station armed forces overseas. The military has
interpreted the term in various publications. While the
government does not ask us to defer to any of the military’s
definitions, see United States v. Apel, 134 S. Ct. 1144, 1151
(2014) (“[W]e have never held that the Government’s reading
of a criminal statute is entitled to any deference.”), they
confirm our interpretation that an individual must have at
least some significant ties to the host nation, outside of his
connection to the military, to qualify as “ordinarily resident.” 3

    3
       See, e.g., U.S. AIR FORCE, AFE 36-104, U.S. FORCES
CIVILIAN COMPONENT DETERMINATION IN THE UNITED KINGDOM
                                 13

     The government introduced evidence that Williams was
stationed at Ramstein because of his military service from
2001 until he was discharged in May 2005. A rational jury
could have readily inferred from this evidence that Williams
was not “ordinarily resident in” Germany during this period.
Cf. Collins v. Weinberger, 707 F.2d 1518, 1519 & n.7 (D.C.
Cir. 1983) (explaining that the Status of Forces agreement for
the North Atlantic Treaty Organization distinguishes military
personnel—and accompanying civilian employees—stationed
in a foreign nation from locals who are “ordinarily resident”
there). A rational juror could also infer that Williams did not
become an ordinary, or usual, resident of Germany in the
interval between his discharge and Johnson’s death. For
starters, this period was short, lasting no longer than two
months. Further, evidence showed that Williams’s home was
on base rather than in a private dwelling, and that he was
married to an American servicemember rather than to a
German national or ordinary resident. Evidence also revealed
that Williams left Germany for the United States two days
after Johnson’s death, on July 6, 2005, and never returned.
See Daneshpayeh, 17 F.3d 1444, at *2 (employee who was


3-4 (2014) (explaining that “ordinarily resident,” as used in the
Status of Forces agreement for the North Atlantic Treaty
Organization, “normally involves a number of factors,” and that
people who have lived abroad for more than a year “without a US
government connection” generally qualify as ordinarily resident in
the host nation); U.S. Army, Civilian Human Resources Agency—
Europe             Region,            Ordinarily             Resident,
https://wu.acpol.army.mil/eur/employment/ordinarily_resident.htm
(last visited Aug. 24, 2016) (noting that U.S. citizens may become
ordinarily resident in Germany if, among other things, they live
there for a year without a connection to the U.S. military).
                              14

“ordinarily resident” in Turkey lived there for almost 20
years, was married to a Turkish woman, and lived in an
apartment building she owned). A jury could have rationally
inferred from this evidence that Williams did not have
significant local ties at the time of Johnson’s death but rather
lived there because of his connection to the military.

     Before leaving our discussion of MEJA, however, we
observe that the government could have taken straightforward
steps to “avoid the need for judicial consideration of what
should be a non-problem.” United States v. Hall, 613 F.3d
249, 253 (D.C. Cir. 2010). With respect to Williams’s
residency with his wife, for example, the government could
have asked its witnesses where Williams lived at the time of
Johnson’s death or introduced evidence of where Williams
kept belongings or received mail. See United States v. Morris,
977 F.2d 617, 620 (D.C. Cir. 1992) (concluding that evidence
that a defendant kept his possessions in an apartment could
“support a reasonable inference that [he] lived [there]”). As
we have in other close cases, we note that “[t]he sufficiency
of evidence is always situational,” and that the government
“should not find out the hard way what change in
circumstances would be sufficient to render its inadequate
performance on this issue fatal to a conviction.” Hall, 613
F.3d at 253.

                               B

     Williams next argues that the evidence was insufficient
for a rational juror to find beyond a reasonable doubt that he
                                15

acted with the mental state required for murder. We reject this
contention. 4

     Whether a defendant is convicted of second-degree
murder, as opposed to involuntary manslaughter, depends on
the presence of malice aforethought. Compare 18 U.S.C.
§ 1111(a) (murder), with id. § 1112(a) (manslaughter). Malice
can be proven by showing that a defendant intended to kill or,
as the government argued here, that he consciously
disregarded an extreme risk of death or serious bodily injury.
Williams contends that the government did not prove that his
actions met the heightened standard of recklessness required
for a murder conviction. He points to testimony that Johnson
repeatedly said he wanted the jump-in to continue and did not
appear seriously injured when it ended. Williams also argues
that the evidence showed he told other BOS members to take
Johnson to the hospital if necessary.

    But the government presented ample evidence from
which a rational juror could infer that Williams consciously
    4
        Williams also argues that his conviction for witness
tampering and the order that he pay restitution must be reversed
because the evidence was insufficient to convict him of murder.
This argument appears to be grounded in part on the belief that a
defendant cannot be convicted of witness tampering unless he
actually committed a federal crime—a dubious interpretation of the
relevant statute, see 18 U.S.C. § 1512(b), (b)(3) (“Whoever
knowingly uses intimidation . . . with intent to . . . prevent the
communication to a law enforcement officer . . . of information
relating to the commission or possible commission of a Federal
offense . . . shall be fined under this title or imprisoned[.]”
(emphasis added)). At any rate, we need not rule on the propriety of
this interpretation because the evidence was sufficient to convict
Williams of murder.
                               16

disregarded an extreme risk of death or serious injury to
Johnson. For example, testimony at trial suggested that
Williams had a signature move called the “one-hitter quitter,”
which knocked people out with one punch, and that he once
refused to initiate the group’s female member via jump-in
because it “would kill her.” Testimony also suggested that
Johnson’s jump-in was more dangerous than prior hazings.
Not only did it last longer and involve more people than
usual, but Saraglou testified that Johnson was held up at one
point while group members repeatedly punched him without
asking if he wanted to continue the jump-in. And Sims stated
that at another point, Johnson curled up in a ball while he was
kicked. According to Charris’s testimony, moreover, after the
jump-in Williams told another BOS member over the phone
not to take Johnson to the hospital. A rational juror could infer
from this evidence that Williams was aware of his own
strength, understood that jump-ins could lead to serious injury
or death, and knew that Johnson’s jump-in presented a more
extreme risk than most initiations. From this evidence, the
jury was entitled to find that Williams behaved with
conscious disregard of an extreme risk to human life. See
United States v. Foster, 557 F.3d 650, 655 (D.C. Cir. 2009)
(explaining that in a sufficiency-of-the-evidence challenge,
the court must give “full play to the right of the jury to
determine credibility, weigh the evidence and draw justifiable
inferences of fact”).

                               III

    Williams next argues that a prosecutorial misstatement of
law during closing argument substantially prejudiced the
outcome of his trial. We agree that the government misstated
the law in its closing argument. Because the misstatement
implicated a central issue—the state of mind with which
                               17

Williams acted—and was not sufficiently cured, it requires
reversal of Williams’s murder conviction.

                               A

     Before trial, the parties agreed on a jury instruction
explaining that Johnson’s willing participation in the jump-in
did not excuse or justify Williams’s conduct. The instruction
read, in relevant part: “The defense of consent is not available
for homicide or involuntary manslaughter, and therefore
should not be considered.” Proposed Jury Instructions 46, No.
1:09-cr-00026 (D.D.C. Oct. 19, 2010). After trial began,
however, Williams asked the district court to add language to
that instruction to clarify that the jury could consider
Johnson’s consent to the jump-in “in determining whether the
defendant had the necessary malice aforethought to establish
the crime of second-degree murder.” Trial Tr. 57 (Nov. 5,
2010). He argued that the particular circumstances of the case
required a more detailed instruction to clarify that the jury
could consider Johnson’s willing participation in the initiation
when assessing whether Williams consciously disregarded an
extreme risk to human life. The district court denied this
request because, in the court’s view, it was inaccurate to
suggest that Johnson’s acquiescence could bear on Williams’s
state of mind.

     In closing argument, defense counsel emphasized that
Johnson was excited about participation in the initiation and
that every time he was asked if he wanted to continue with the
beating, he said yes. Counsel went on to say:

    [T]he Judge is going to tell you that consent is not a
    defense, and we understand that, but it has to factor in . . .
    to whether [] Williams . . . intended to kill [or] seriously
    injure [] Johnson, and had a reckless disregard for his life
                              18

    or serious injury. When [a] person . . . is saying, yes, yes,
    yes, that’s got to affect something—it may not be a legal
    defense, but it’s got to affect the state of mind of the
    person who supposedly murdered him.

Trial Tr. 32 (Nov. 8, 2010). In its rebuttal, the government
responded that defense counsel had inaccurately stated the
law:

    [Defense counsel] gave you some incorrect law because
    the judge is the one—he’s the final—he is the expert on
    the law, the judge. And you can’t take—Sergeant
    Johnson went in there thinking that he was going to
    become a member of a brotherhood. He did not go in
    there willingly to get killed because consent is never ever
    a defense to murder. It is no defense to second degree
    murder or involuntary manslaughter, and you know what,
    the judge is going to tell you—[defense counsel] told you
    to consider it; don’t even consider it because you can’t
    consider it. It is not a defense . . . . You can’t even
    consider it in his intent or anything else. You just cannot.

Id. at 100-01 (emphasis added). After the rebuttal concluded,
defense counsel objected and asked the district court to give a
“curative” instruction. The proposed language would have
read:

    During yesterday’s rebuttal argument, you heard [the
    government] tell you that you could not consider Juwan
    Johnson’s consent to the initiation ceremony when
    determining whether the government has proven beyond
    a reasonable doubt Mr. Williams’s intent to commit the
    offenses of second degree murder or involuntary
    manslaughter. As I will instruct you momentarily,
    consent is not a defense to these charges. However, under
                               19

    the law, you may consider Juwan Johnson’s consent to
    the initiation, among all the other evidence I have
    admitted, in determining whether the government has
    proven Mr. Williams’ intent to commit the crimes of
    second degree murder or involuntary manslaughter
    beyond a reasonable doubt.

Mr. Rico Williams’ Objection to Gov’t’s Improper Closing
Arg. & Mot. for Curative Instruction 4-5, No. 1:09-cr-00026
(D.D.C. Nov. 9, 2010).

     The district court refused to read this proposed “curative”
language to the jury, concluding again that it was inaccurate
to suggest that the victim’s acquiescence had any impact on
the defendant’s state of mind. However, the district court
modified the first sentence of the consent instruction to read
simply: “Consent is not a defense to second degree murder or
involuntary manslaughter”—excising the language “and
therefore should not be considered.” Trial Tr. 16-17, 46 (Nov.
9, 2010). The district court also offered to give the jury an
additional instruction on proof of state of mind. It pointed to a
standard criminal jury instruction that explains that someone’s
state of mind “ordinarily cannot be proved directly,” but may
be inferred from the defendant’s conduct and other
“surrounding circumstances” that the jury finds relevant.
Instruction No. 3.101 of the Criminal Jury Instructions for the
District of Columbia (2014). The district court acknowledged,
however, that this additional instruction would not satisfy the
defense’s request for a curative instruction. The defense
declined it, and the district court did not read it to the jury.

    Williams argues that the government’s misstatement of
law substantially prejudiced him. He agrees that consent is not
an affirmative defense to homicide, but insists that Johnson’s
                              20

consenting behavior—that is, his “continued, and enthusiastic,
statements that he wanted the initiation to continue”—
suggested that Williams was not conscious of an extreme risk
that Johnson might die or be seriously injured. Appellant’s Br.
63-65. According to Williams, the government’s rebuttal
argument that consent cannot be considered “in [Williams’s]
intent or anything else”—coupled with the district court’s
instruction that “consent is not a defense”—prevented the jury
from considering crucial context when determining whether
Williams acted with malice aforethought.

                              B

     Williams asserts that the government’s closing argument
improperly led the jury to believe that it could not consider
crucial evidence of Williams’s state of mind, and that the jury
instructions “supported” this misperception. Appellant’s Br.
65. In other words, he alleges that improper prosecutorial
argument prejudiced his trial. When reviewing such
challenges, we first examine whether the government’s
statement was indeed error, keeping in mind that it need not
have been deliberate or made in bad faith to be erroneous. See
United States v. Watson, 171 F.3d 695, 700 (D.C. Cir. 1999).
If the remark was error, we evaluate whether the error
substantially prejudiced the defendant and therefore requires
reversal. United States v. Straker, 800 F.3d 570, 628 (D.C.
Cir. 2015). When considering prejudice, we examine, among
other factors, the steps the district court took to cure the
erroneous remark. See United States v. Gartmon, 146 F.3d
1015, 1026 (D.C. Cir. 1998).

                               i

    The government misstated the law in its closing
argument. When the government said that the jury could not
                               21

consider Johnson’s consent in determining Williams’s “intent
or anything else,” it inaccurately conflated two issues: (1)
whether a victim’s consent can be a justification or excuse for
the commission of a crime, and (2) whether it can bear on the
presence or absence of an element of the crime.

     This distinction is fundamental in criminal law. If an
element of a crime is missing, the charged culpable conduct
has not occurred. Here, malice aforethought was an element
of the crime with which Williams was charged; if he acted
without this state of mind, he could not have been guilty of
second-degree murder. By contrast, legally recognized
justifications or excuses are “affirmative defenses” that
eliminate criminal liability even though all of the elements of
a crime are met. See 2 WAYNE R. LAFAVE, SUBSTANTIVE
CRIMINAL LAW § 9.1 (2d ed. 2003). For example, a defendant
who purposefully kills in self-defense satisfies the elements of
murder: he has performed the required act (killing) with the
required mental state (intent to kill). But he is not criminally
liable because his actions are deemed justified. Id. Similarly, a
defendant who purposefully kills but does not know that his
conduct is wrong satisfies the elements of murder, but may be
excused from criminal liability because of insanity. Although
his actions are not seen as justified, society excuses his
conduct because he lacked responsibility for his actions
through no fault of his own. Id.

     An argument that a required element of a crime is
missing is sometimes colloquially deemed a “defense.” For
example, “the defense to a murder prosecution [might be] that
the victim died accidentally.” 1 LAFAVE, supra, § 1.8 n.25.
But this argument is “not really an ‘affirmative defense’ at
all.” Id. Instead, it is “more correctly” viewed as an argument
that the government has failed to prove an element of the
                               22

crime. 2 LAFAVE, supra, § 9.1; see also United States v.
Sandoval-Gonzalez, 642 F.3d 717, 723 (9th Cir. 2011)
(distinguishing between “[c]lassic affirmative defenses,” such
as justification or excuse, and “[o]ther ‘defenses’ . . .
advanced simply to negate an element of the crime”). At trial,
Williams sought to make precisely this latter kind of
argument: that Johnson died accidentally rather than as a
result of Williams’s conscious disregard for human life.
Properly understood, this contention is not an affirmative
defense such as justification or excuse, but simply an
assertion that a required element of the crime of murder—
malice—was missing.

     By contrast, the rule that consent cannot be a defense to
homicide means simply that consent is not an affirmative
defense in the vein of justification or excuse. See 40 AM. JUR.
2D HOMICIDE § 110 (“In application of the general principle
that consent is not a defense to a crime if the activity that was
consented to is against public policy, it is the rule that, in a
prosecution for homicide, consent of the deceased is no
excuse.” (emphasis added)); Vera Bergelson, Victims and
Perpetrators: An Argument for Comparative Liability in
Criminal Law, 8 BUFF. CRIM. L. REV. 385, 399-400 (2005)
(“[W]ith respect to some acts, society does not recognize even
the possibility of valid consent. . . . The most prominent
among them is homicide—the victim’s consent to be killed is
never a complete justification for the perpetrator.” (emphasis
added)). This rule does not foreclose a jury from considering
all relevant facts and circumstances surrounding a homicide to
determine whether the defendant consciously disregarded an
extreme risk to human life, and therefore whether a necessary
element of the crime had been proven.
                               23

     To the contrary, such evidence is critical in determining
whether a defendant is guilty of second-degree murder or the
lesser crime of involuntary manslaughter. While second-
degree murder requires at least a conscious disregard of an
extreme risk of death or serious injury, involuntary
manslaughter requires that a defendant engage in reckless
conduct that created an extreme risk of death or serious injury
of which he should have been aware, but was not. See
Proposed Jury Instructions 40-42, No. 1:09-cr-00026 (D.D.C.
Oct. 19, 2010). In other words, the difference between
second-degree murder and manslaughter “lies in the quality of
awareness of the risk.” United States v. Dixon, 419 F.2d 288,
293 (D.C. Cir. 1969) (Leventhal, J., concurring). The jury
may infer that the defendant was aware of the risk from the
surrounding circumstances. United States v. Cox, 509 F.2d
390, 392 (D.C. Cir. 1974). Here, Johnson’s repeated
insistence that he wanted the jump-in to continue might have
signaled to Williams that Johnson was in no serious danger.
And if Williams believed that, Williams could not have been
aware of an extreme risk to human life.

     To illustrate, consider a counterfactual: what if, instead of
repeatedly affirming that “yes,” he wanted to continue the
initiation, Johnson had said “no,” or “stop”? Surely this
evidence would point in favor of a finding that Williams
consciously disregarded an extreme risk of death or injury.
Johnson’s behavior was highly relevant—indeed, crucial—in
determining whether Williams was guilty of murder or
manslaughter. As such, Williams was entitled to have the jury
consider that evidence. See Hopt v. People, 104 U.S. 631,
633-34 (1881); 5 ORFIELD’S CRIMINAL PROCEDURE UNDER
THE FEDERAL RULES § 30:23 (West 2016) (“Intent is a
question of fact which must be submitted to the jury in the
light of all relevant evidence.”).
                               24

     But the government’s closing argument may well have
led the jury to believe it could not consider this crucial
evidence. In its closing, the defense focused the jury on
Johnson’s enthusiastic participation in the jump-in, explaining
that “[w]hen [a] person . . . is saying, yes, yes, yes, that’s got
to affect . . . the state of mind of the person who supposedly
murdered him.” In rebuttal, the government said the defense’s
statement was “incorrect law.” The government then
purported to interpret the jury instruction that consent is not a
defense by explaining to the jury that “the judge is going to
tell you” that “you can’t consider” Johnson’s consent when
evaluating Williams’s “intent or anything else.” The dissent
suggests that by “consent” the government only referred to
the word’s legal meaning of subjective willingness, not
manifestation of consent by behavior or words. But “[n]either
courts nor juries parse extemporaneous remarks in closing
argument as closely as sentences in carefully drafted legal
documents,” and what matters is what the jury would “have
understood the prosecutor to say.” United States v. Venable,
269 F.3d 1086, 1090 (D.C. Cir. 2001). Here, the government
characterized as incorrect the defense’s statement that
Johnson’s behavior—his “yeses”—was probative of
Williams’s degree of recklessness, and further suggested to
the jury that it could not consider this behavior for any
purpose. This was error.

                                ii

    A prosecutorial misstatement during closing argument is
ground for reversal only if it substantially prejudiced the
defendant. Straker, 800 F.3d at 628. “[C]ontext is key” in
determining the effect of the misstatement. Venable, 269 F.3d
at 1090. If, considering the context of the full trial, we are
“sure that the error did not influence the jury, or had but very
                               25

slight effect, the verdict and the judgment should stand.”
United States v. Fowler, 608 F.2d 2, 12 (D.C. Cir. 1979)
(quoting Kotteakos v. United States, 328 U.S. 750, 764-65
(1946)). But if we “cannot say, with fair assurance,” that “the
judgment was not substantially swayed by the error, it is
impossible to conclude that substantial rights were not
affected.” Id. To determine whether the error substantially
prejudiced the defendant, we consider the severity of the
error, the centrality of the issue affected by the error, the
closeness of the case, and the steps taken to cure the error. See
Gartmon, 146 F.3d at 1026.

     Looking first at severity, it is true that the problematic
statement amounted to a small portion of closing argument.
However, read “in context,” Venable, 269 F.3d at 1091, there
is a very real chance that the statement led some jurors to
believe they could not consider Johnson’s consenting
behavior at all. The district court’s administration of the
“consent is not a defense” instruction, after the government
inaccurately interpreted it, may well have left jurors with the
mistaken impression that they could not consider Johnson’s
repeated statements that he wanted the initiation to continue.
Because the statement was made by the government, it carried
particular weight. See Spivey v. Head, 207 F.3d 1263, 1275
(11th Cir. 2000) (“Improper prosecutorial arguments,
especially misstatements of law, must be considered carefully
because ‘while wrapped in the cloak of state authority [they]
have a heightened impact on the jury.’” (citation omitted)).
And the remark’s potential for prejudice was even more
pronounced because it occurred during the government’s
rebuttal—allowing the defense no opportunity to respond.

    Further, any misunderstanding that this statement might
have engendered implicated a central issue: Williams’s
                              26

awareness of the risk to Johnson. To convict Williams of
second-degree murder, the jury had to find that Williams was
conscious of an extreme risk of death or serious injury to
Johnson. If Williams was not conscious of this risk, but
should have been, then the jury could convict him only of
manslaughter. See Dixon, 419 F.2d at 293 (Leventhal, J.,
concurring).

     As to the third factor in our analysis of substantial
prejudice, the government acknowledged that the case was a
close call on this very issue: Williams’s awareness of the risk.
The district court agreed, explaining that “it was a close case
between second degree murder and manslaughter” and that
while “a reasonable jury could have reached the conclusion it
reached, [] it would not have been irrational to conclude it
was manslaughter instead.” Tr. of Proceedings 27 (June 3,
2011). To be sure, as described above (in II.B) and by the
dissent, the evidence permitted the jury to find that Williams
was aware of an extreme risk to human life. But other
evidence suggested that Williams acted without a conscious
disregard for human life—even if his behavior created an
extreme risk that he should have known about. See United
States v. Smart, 98 F.3d 1379, 1391 (D.C. Cir. 1996)
(explaining that substantial prejudice is “not a mere
sufficiency-of-the-evidence inquiry”). For example: no
serious injuries had occurred in any of the fifteen to eighteen
prior jump-ins the group had performed; members repeatedly
asked Johnson if he wanted to continue with the initiation and
testified that they would have stopped had he said no; Johnson
had no unmistakable outward signs of major injuries after the
jump-in; and some expert testimony suggested that trauma
from the jump-in was not the primary cause of death—rather,
Johnson’s undisclosed, underlying medical trait was. The
question of Williams’s awareness of the risk to Johnson was
                               27

therefore close, and as we have explained, “the danger that an
error will affect the jury’s verdict” increases significantly “in
a case where the evidence at trial is conflicting.” Id. at 1392.

     Finally, insufficient steps were taken to cure the error. To
be sure, the district court’s general instructions informed the
jury that the parties’ closing arguments were not evidence and
that the jury should apply the law as instructed by the court.
Such instructions can have an ameliorative effect. Venable,
269 F.3d at 1091. For example, where the government
improperly suggested the defendant must prove his innocence,
we have held that the court’s instruction on burden of proof
cured the mistake because it clearly informed the jury of the
relevant law. See id. at 1089, 1091. But “there are limits” to
the efficacy of such general instructions when “the
instructions d[o] not address the prosecutor’s error in closing
argument, and the error affect[s] a central issue.” Watson, 171
F.3d at 702. For instance, in United States v. Hall, 610 F.3d
727 (D.C. Cir. 2010), we held that a closing argument’s
“reference to [the court’s] forthcoming jury instructions could
not alone remove the taint of the error.” Id. at 742. In that
case, cited by the defense as an example of a curative
instruction, we found that the error was cured because the
court’s instructions corrected the specific point of law that the
government misstated. Id. at 742 & n.6.

    Here, no instruction sufficiently corrected the potential
confusion engendered by the government’s argument. While
the district court instructed the jury on the state of mind
required for murder and manslaughter, this instruction would
not have corrected the misimpression that, under the separate
“consent is not a defense to murder” instruction, Johnson’s
                                 28

statements and actions could not be considered in determining
Williams’s consciousness of risk. 5 Because the error went to a
central and close issue in the case, and because it was
insufficiently cured, we reverse Williams’s murder
conviction. 6

                                 iii

     On appeal, the government appears to concede that
Johnson’s statements and behavior were important evidence
of Williams’s state of mind, but it suggests that Williams’s
use of the term “consent” in his proposed curative instruction
invited confusion because it implied that Johnson’s subjective
willingness to participate in the jump-in was pertinent in
assessing Williams’s state of mind.

    5
       We do not understand Williams to argue before us that the
“consent is not a defense” jury instruction, on its own, was a
problem. We therefore decline to consider whether that instruction
adequately conveyed the relevant law. As we observed above,
however, the term “defense” is open to multiple interpretations
because of its colloquial use to refer to a defendant’s argument that
an element of the crime is missing. See 1 LAFAVE, supra,
§ 1.8 n.25.
    6
       To the extent that Williams argues that this error also
requires the reversal of his witness-tampering conviction, we
disagree. Although Johnson’s behavior was highly relevant in
assessing Williams’s state of mind for the purposes of the murder
charge, it had little if any bearing on the charge that Williams
threatened Sims. The state-of-mind issue was therefore not central
to the tampering conviction. Moreover, as we explain below, the
witness-tampering charge did not present a particularly close case.
See Gartmon, 146 F.3d at 1026.
                               29

      We agree that Williams might have been better served to
use a term such as “consenting behavior” instead of “consent”
to avoid any risk of misunderstanding. But the defense made
sufficiently clear that it was using the term “consent” to refer
to Johnson’s outward behavior—not his subjective state of
mind. For example, when requesting a curative instruction,
defense counsel explained its argument this way: “[I]f
someone is hitting somebody . . . and they’re saying, ‘Yes, I
still want it, yes, I still want it,’ it would be reasonable—at
least the defense would argue it would be reasonable to think
that he’s not in . . . physical jeopardy; that he can keep hitting
him and he’s not going to kill him, that he’s going to keep
hitting him and he’s not going to seriously injure him.” Trial
Tr. 7 (Nov. 9, 2010). Counsel further argued that unless the
government’s misstatement was “cured,” the jurors “are going
to be saying: No, you can’t consider that he said, ‘hell yeah,’
whatever. You can’t consider that . . . at all. The judge took
that off limits for us.” Id. at 8. Looking at the record, we
believe the district court understood counsel’s argument and
simply rejected it. Tr. of Proceedings 25 (June 3, 2011)
(“[W]hatever the decedent may have said or done can in no
way affect the mental state or mens rea of the defendant.”
(emphasis added)).

     We do not mean to suggest, however, that the district
court was required to accept the precise curative language that
Williams proposed. Of course, had it done so, Williams could
not now complain that the instruction was improperly worded.
See United States v. Wells, 519 U.S. 482, 488 (1997)
(“[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.” (alterations omitted)).
Alternatively, had the court agreed with Williams’s concern
but believed that his proposed instruction would confuse the
                              30

jury, it could have rephrased the instruction to refer more
directly to Johnson’s statements and behavior. Similarly, if
the court was reluctant to highlight specific evidence
favorable to Williams, as the dissent suggests, it could have
rephrased the instruction to refer generally to the victim’s
behavior (just as the model instruction that the district court
offered, and the dissent approves, refers generally to “any
statement made or acts [done by the defendant],” Instruction
No. 3.101 of the Criminal Jury Instructions for the District of
Columbia (2014)). Or the court could have recited evidence
favorable to both sides, as the dissent proposes. Instead, it
concluded that no curative instruction was needed. We
disagree.

     The government also points out that Williams declined
the district court’s offer to read an additional instruction on
proof of state of mind. If the government means to suggest
that Williams invited error by refusing an instruction that
would have cured the government’s misstatement, it presented
this argument inadequately in its brief. City of Nephi v.
FERC, 147 F.3d 929, 933 n.9 (D.C. Cir. 1998) (explaining
that a party “fail[s] properly to raise [an] argument” on appeal
when it “merely inform[s] the court” of the factual basis for a
claim).

     At any rate, the additional instruction suggested by the
district court would not have cured the government’s
misstatement. As described above, that instruction simply
provided that a person’s state of mind “ordinarily cannot be
proved directly,” but that the jury may infer state of mind
“from the surrounding circumstances.” Instruction No. 3.101.
The instruction further explained that the jury may consider
the statements and acts of the defendant and “all other facts
and circumstances received in evidence” that indicate his state
                              31

of mind. Id. But the prejudice Williams identifies is that the
jury might have believed that the consent instruction
separately precluded it from considering the victim’s
consenting behavior as one of these relevant “facts and
circumstances.” The consent instruction is somewhat unusual
in that it effectively forbids the jury from considering certain
evidence, rather than merely telling the jury which elements it
must find and how to weigh the evidence. Given this feature,
and in light of the unique circumstances that developed at
closing argument, the jury could readily have perceived the
consent instruction as limiting any instructions on state of
mind. The additional instruction therefore would not have
cured the jury’s potential misunderstanding. Even had it been
given to the jury, we would not be able to “say, with fair
assurance,” that “the judgment was not substantially swayed
by the error.” Fowler, 608 F.2d at 12 (quoting Kotteakos, 328
U.S. at 764-65).

                              IV

     In his remaining challenges, Williams points to three
evidentiary errors and three instances of alleged misconduct
by the government. Williams argues that these errors inflamed
the jury and therefore require reversal of both convictions.
Because the government’s misstatement of law during closing
argument independently requires us to reverse Williams’s
murder conviction, however, we need consider only whether
any of these alleged errors separately warrant reversal of his
witness-tampering conviction. They do not.

    The first evidentiary ruling Williams challenges does not
require reversal, because it was not error. The photograph that
the district court admitted of Johnson and his wife at an
amusement park was relevant as an objective indication of
                                 32

Johnson’s height—an important fact in determining his size
relative to Williams’s—and the district court did not abuse its
discretion in holding that the photo’s probative value was not
substantially outweighed by the risk of prejudice.

     Williams correctly argues, however, that testimony of
Johnson’s wife that she was pregnant when Johnson died was
irrelevant. The district court concluded as much after trial, but
denied Williams’s motion for a new trial, because the error
was harmless. We agree that the error was harmless as to
Williams’s tampering conviction. Our test for harmless error
“is clear[:] If (1) the case is not close, (2) the issue not central,
or (3) effective steps were taken to mitigate the effects of the
error, the error is harmless.” In re Sealed Case, 99 F.3d 1175,
1178 (D.C. Cir. 1996). Although the pregnancy testimony
might have enhanced the jury’s sympathy for Johnson as a
victim, such sympathy would have had minimal—if any—
influence on the tampering conviction because Johnson was
not a victim of that crime. The testimony therefore did not
touch upon a “central” issue. Id.

     Moreover, the evidence supporting the tampering
conviction was not conflicting. Rather, Sims testified,
unrebutted, that Williams threatened him. The case was
therefore “not close” on this charge. Id. Further, the jury
carefully parsed the witness-tampering charges. As to one of
the tampering counts, the jury found that Williams threatened
Sims but not three other gang members he was charged with
threatening at the same time. And the jury acquitted Williams
of the other tampering count altogether. Thus, we are
confident that the jury was not “swayed by emotional
appeals” when it evaluated the tampering charges. United
States v. Bass, 535 F.2d 110, 117 (D.C. Cir. 1976).
                                33

     For the same reasons, the admission of the testimony of
gang expert Robert Stasch was at most harmless error with
respect to Williams’s tampering conviction. Stasch, a
lieutenant in the Chicago Police Department, testified about
the background, history, and symbols of the American gang
the Gangster Disciples. He also identified some of Williams’s
tattoos as common among members of the Gangster
Disciples. Stasch further explained that the “Brothers of the
Struggle,” a name the Ramstein group often called itself,
originated as the “prison faction” of the Gangster Disciples
and “eventually transferred to the street.” Williams argues
that this testimony was irrelevant and unduly prejudicial. But
assuming that the admission of this testimony was error, it
was harmless; the tampering charge did not present a close
question, and the jury carefully assessed the charges, as
described above. However, evidence of a defendant’s gang
membership is “likely to provoke strong antipathy in a jury,”
United States v. Jernigan, 341 F.3d 1273, 1284-85 (11th Cir.
2003), and the harmlessness calculus would look different in a
closer case. 7

    Williams further identifies three instances of alleged
prosecutorial misconduct that, in his view, prejudiced his trial.
He argues that the government inappropriately asked a
defense witness on cross examination whether she had read
anything about Johnson’s death in the Stars and Stripes
newspaper or seen it featured on the television show

    7
       Of course, as we have explained, Williams’s murder charge
presented just such a closer case. Because we are already reversing
Williams’s murder conviction, however, we need not—and
therefore do not—rule on whether Stasch’s testimony was properly
admitted to prove the murder charge.
                               34

Gangland. Even if this questioning was improperly designed
to encourage the jury to do outside research, it did not
prejudice Williams’s tampering conviction. The question was
fleeting, and the district court cured any potential for
prejudice by directing the jury to disregard it and reminding
the jury that outside research was forbidden.

     Williams further contends that the government
improperly accused the defense of “blaming the victim” for
his death, and that the government inaccurately told the jury
that only one person before Johnson had fallen at a jump-in.
But these statements had little bearing on the tampering
charge, since they focused on the events surrounding
Johnson’s death. Moreover, the district court adequately cured
the first remark by instructing the government to clarify that it
was not implying that the defense believed Johnson was
responsible for his own death. And Williams’s counsel
highlighted the inaccuracy of the second statement by reading
a transcript of the relevant witness testimony to the jury.
These alleged instances of misconduct therefore do not
warrant reversal of the witness-tampering conviction.

                               V

    We reverse Williams’s murder conviction and remand the
case for a new trial. We affirm his witness-tampering
conviction.
     KAVANAUGH, Circuit Judge, concurring: I fully join the
excellent majority opinion. In response to the strongly
worded dissent, I am compelled to add a few comments about
my view of the case and, in particular, to underscore the
critical importance of accurate instructions to the jury on
mens rea requirements.

     For me, the vote to reverse Williams’ murder conviction
is not a hard call. This case involves a gang’s initiation ritual
for bringing new members into the gang. In this instance, a
new gang member who underwent the initiation ritual
eventually died afterwards. The facts of the case fit the crime
of involuntary manslaughter to a T. But the Government
charged Williams with second-degree murder, a more serious
offense with much heavier punishment. The jury was
instructed on both manslaughter and murder, and a critical
issue for the jury to decide was whether Williams was guilty
of manslaughter or murder. To decide between the two
offenses, it was essential for the jury to understand the
difference between the two crimes.

     On the facts here, the relevant difference between the two
crimes related to the defendant’s mens rea. The crime was
murder if the defendant was subjectively aware that his
conduct created an extreme risk of death or serious bodily
injury. The crime was manslaughter, however, if the
defendant was not subjectively aware that his conduct created
an extreme risk of death or serious bodily injury, even though
he should have been aware.

     The key issue for the jury to understand in assessing
Williams’ mens rea and distinguishing manslaughter from
murder was the significance of the victim’s statements during
the gang initiation – namely, the victim’s repeated statements
during the initiation that he was okay and could continue.
During closing argument, the defense counsel correctly told
the jury what the law was: that in assessing Williams’ mens
                              2
rea, the jury could consider the statements that the victim had
made during the gang initiation. But the prosecutor, in her
rebuttal, said that the defense counsel was wrong about the
law. The prosecutor told the jury that it could not consider
the statements that the victim had made during the gang
initiation. This disagreement was central to the outcome of
the case. Considering the victim’s statements likely would
lead the jury to convict for manslaughter, not murder. But
excluding consideration of those statements likely would lead
the jury to convict for murder, not manslaughter.

    Faced with this disagreement between the defense
counsel and the prosecutor over the key legal issue in the
case, the jury would naturally wonder: Who’s right about the
law?

     The defense counsel’s statement during closing was the
correct statement of law. The prosecutor’s statement was an
incorrect statement of law. But unfortunately, the ultimate
instructions to the jury did not clear up the confusion or
definitively resolve the disagreement between the prosecutor
and defense. Indeed, if anything, the instructions tended to
suggest that the prosecutor’s incorrect view of the law was
correct.

     I am firmly convinced that the jury did not have a correct
understanding of the law and, armed with that
misunderstanding, then proceeded to convict Williams of
second-degree murder rather than manslaughter. I am
unwilling to sweep that under the rug. Williams committed a
heinous crime. But as the District Court observed in a post-
trial hearing, this “was a close case between second degree
murder and manslaughter.” Mot. Hr’g Tr. 27:11-12 (June 3,
2011). And the difference between a manslaughter conviction
and a murder conviction in this case is very significant in
                              3
terms of prison time for Williams. He was sentenced to 22
years in prison for the murder. If he had been convicted of
involuntary manslaughter, the statutory maximum sentence
would have been 8 years in prison. See 18 U.S.C. § 1112(b).

     In a criminal appeal where a mens rea-related jury
instruction issue may have made a difference to the
conviction and sentence, it is critically important to ensure
that the jury had a correct understanding of the relevant law.
See United States v. Burwell, 690 F.3d 500, 527 (D.C. Cir.
2012) (Kavanaugh, J., dissenting). That did not happen in this
case, in my view. For that reason, I vote to reverse the
murder conviction, and I fully join the majority opinion.
     KAREN LECRAFT HENDERSON, Circuit Judge, concurring
in part and dissenting in part: My colleagues reverse Rico
Williams’s murder conviction because of eleven words the
prosecutor uttered in her rebuttal closing argument. In their
view, the prosecutor’s statement was legally incorrect and
Williams was substantially prejudiced because the district
court failed to cure the error and because the evidence was
close. I disagree with each component of that analysis. The
prosecutor misstated nothing. The district court’s charge was
correct and balanced. And the evidence of guilt was
powerful. Because Williams received a trial that was
error-free—and at all events fair—I would affirm his
second-degree murder conviction. 1

              I. The Beating and the Aftermath

    On the night of July 3, 2005, in a brick-floored hut in
Hohenecken, Germany, gang leader Williams and his fellow
gang members beat Army Sergeant Juwan “Jay” Johnson to
death during a gang-initiation ritual. Williams, at 6’2” or
6’3”, began the so-called “jump-in” with a punch directly to
Johnson’s face. Johnson, at 5’2” or 5’3”, hit the floor. He
got back up. Williams hit him in the face again. The other
eight gang members then joined the fray, pummeling Johnson.
During the course of more than six minutes of a nine-man
beating, Johnson fell to the ground, curling up into the fetal
position. Williams then led the group in what one witness
described at trial as “stomp[ing] on” Johnson. Trial Tr. 30
(Oct. 25, 2010).
     1
        I join Parts I and II of the majority opinion in full. I join Part
IV insofar as it upholds Williams’s witness-tampering conviction.
Because my colleagues reverse the murder conviction based on the
prosecutor’s alleged misstatement of law, they do not decide whether
Williams’s other claims of prosecutorial misconduct or his challenge
to certain evidentiary rulings would also warrant reversal of the
murder conviction. I would reject those claims across the board.
                              2
      Johnson emerged from the ordeal alive but was walking as
if intoxicated. He slurred his speech. He had soiled himself.
It took four men to carry him up the stairs to his barracks.
Once there, Johnson, with assistance, eventually took a shower
and spoke with his wife on the telephone. He then asked to be
taken to the hospital. Florentino Charris, the gang member
Williams assigned to watch Johnson, spoke with another gang
member who relayed Johnson’s request to Williams.
Williams directed that Johnson not be taken to the hospital.
Charris eventually fell asleep. When he awoke a couple of
hours later, Johnson was dead.

     The day after the beating, July 4, Williams concocted a
cover story and disseminated it among his fellow gang
members. He took the gang’s stash of cash—about $600 in
“dues” that had been collected from the gang
members—explaining to the gang treasurer that “if anybody
was going to come for anybody first, they were going to come
for him, and he needed [the money] to get out of the country.”
Trial Tr. 44 (Oct. 29, 2010). On July 6, Williams caught a
flight out of Germany back to the United States. He remained
at large until his arrest nearly four years later. After a
three-week trial, a jury convicted Williams of second-degree
murder for his role in Johnson’s death.

                II. The Standard of Review

     As the majority tells it, reversal is necessary to undo a
prosecutorial misstatement about “consent,” Maj. Op. 20-24,
which the district court failed to correct, Maj. Op. 27-28.
Williams frames the issue differently, claiming that “the
district court improperly foreclosed [his] closing argument and
improperly denied [his] requested language on consent.”
Appellant’s Br. 62 (capitalization altered). I highlight the
distinction at the threshold because the law governing alleged
                                3
prosecutorial misconduct is different from the law governing a
challenge to the jury charge.

     The test for misconduct recognizes that “a prosecutor’s
statements in closing argument will rarely warrant a new trial”
if he misstates the evidence. United States v. Watson, 171
F.3d 695, 699 (D.C. Cir. 1999). The same is true if the
prosecutor allegedly misstates the law because an advocate’s
declarations—“usually billed in advance to the jury as matters
of argument”—“are not to be judged as having the same force
as an instruction from the court.” Boyde v. California, 494
U.S. 370, 384-85 (1990); see United States v. Venable, 269
F.3d 1086, 1091 (D.C. Cir. 2001) (prosecutorial misstatement
of law can be “mitigated” by correct jury instructions,
especially if court instructs “that it [is] the court’s
responsibility to apprise the jury as to the law, and that the
lawyers’ statements [are] merely argument”). Ultimately, the
inquiry turns on whether a misstatement occurred and caused
“substantial prejudice” to the defense. United States v.
Straker, 800 F.3d 570, 628 (D.C. Cir. 2015) (per curiam).

     By contrast, when the jury charge is challenged, we
consider “whether, taken as a whole, [the instructions]
accurately state the governing law and provide the jury with
sufficient understanding of the issues and applicable
standards.” United States v. Wilson, 605 F.3d 985, 1018 (D.C.
Cir. 2010) (per curiam) (internal quotations omitted)
(alteration in original); see Joy v. Bell Helicopter Textron, Inc.,
999 F.2d 549, 556 (D.C. Cir. 1993) (we review de novo “[a]n
alleged failure to submit a proper jury instruction”).

      III. The Prosecutor Did Not Misstate the Law

     Whether the alleged error sounds in misconduct or
instructional error or both, it cannot support reversal in light of
the district court’s correct and careful charge. See infra Point
                                4
IV.A. For starters, however, I cannot discern a prosecutorial
misstatement.

              A. The Context of the Statement

    As the majority notes, “‘[c]ontext is key,’” Maj. Op. 24
(quoting Venable, 269 F.3d at 1090), and so it is worth
recounting the procedural backdrop against which the
prosecutor spoke.

     Before trial, the parties jointly proposed a jury instruction
stating in part that “under no circumstance is consent a defense
to the crime of homicide.” Proposed Jury Instructions at 46,
Dkt. 96. That language is consistent with settled law. See,
e.g., Washington v. Glucksberg, 521 U.S. 702, 714 (1997)
(“the well-established common-law view” was “that the
consent of a homicide victim is wholly immaterial to the guilt
of the person who caused his death”) (quotation and alterations
omitted); Woods v. United States, 65 A.3d 667, 672 (D.C.
2013) (“[C]onsent is not a defense to a charge of assault with
significant bodily injury arising out of a street fight.”); Durr v.
State, 722 So. 2d 134, 135 (Miss. 1998) (victim’s consent was
no defense to manslaughter charge against defendant who
killed fellow inmate in gang-initiation beating); State v. Hiott,
987 P.2d 135, 136-37 (Wash. Ct. App. 1999) (“[C]onsent is not
a valid defense if the activity consented to is against public
policy. Thus, . . . a gang member cannot consent to an
initiation beating . . . .”) (citation omitted).

     During the trial, the government itself elicited testimony
about Johnson’s “consenting behavior”—to use the majority’s
term, e.g., Maj. Op. 25—and it did not object, on relevance
grounds or otherwise, to the defense’s introduction of evidence
on the same point. At the charge conference, the defense
revisited the joint instruction that consent is not a defense.
Pointing out that “it’s pretty much undisputed that Sergeant
                                5
Johnson consented to the jump-in,” the defense argued that
Johnson’s consent “undermine[d]” Williams’s criminal intent.
Trial Tr. 56 (Nov. 5, 2010). The defense therefore urged the
district court to amend the joint instruction to say that “you
may consider . . . consent in determining whether the defendant
had the necessary malice aforethought to establish the crime of
second-degree murder.” Id. at 57. The court denied the
request because “intent and mens rea are adequately defined in
the substantive instructions” and, in any event, “to tell [the
jurors] that they can consider consent as it relates to intent or
mens rea is not a fair statement of the law.” Trial Tr. 24 (Nov.
8, 2010).

     In closing argument, before the jury was charged, the
defense strayed from the district court’s ruling. It argued not
just that Johnson’s “saying . . . yes, yes, yes” during the
jump-in could “affect the state of mind of the person who
supposedly murdered him.” Trial Tr. 32 (Nov. 8, 2010).
That statement would have been unobjectionable if tied solely
to Williams’s appreciation of Johnson’s condition at that point.
But the defense also argued, incorrectly, that Johnson’s
“consent” could negate Williams’s criminal intent:

       [T]he Judge is going to tell you that consent is
       not a defense, and we understand that, but it
       [i.e., consent] has to factor in . . . to whether Mr.
       Williams, [as] the government claims, intended
       to kill Sergeant Johnson and intended to
       seriously injure Sergeant Johnson, and had a
       reckless disregard for his life or serious injury.

Id. (emphases added). In rebuttal, the prosecutor responded
as follows:

       [Defense counsel] gave you some incorrect law
       because the judge is the one—he’s the
                              6
       final—he is the expert on the law, the judge.
       And you can’t take—Sergeant Johnson went in
       there thinking that he was going to become a
       member of a brotherhood. He did not go in
       there willingly to get killed because consent is
       never ever a defense to murder. It is no
       defense to second degree murder or involuntary
       manslaughter, and, you know what, the judge is
       going to tell you—[defense counsel] told you to
       consider it; don’t even consider it because you
       can’t consider it. It is not a defense.

       ...

       [U]nder no circumstances is consent a defense
       to the crime of homicide. So remember that.
       You can’t even consider it in his intent or
       anything else. You just cannot.

Id. at 100-01 (emphasis added).

       B. The Prosecutor Was Right that Johnson’s
                Consent Was Irrelevant

     My colleagues conclude that the comment italicized above
misstated the law and “suggested to the jury that it could not
consider [Johnson’s] behavior”—namely, his “‘yeses’” during
the jump-in—“for any purpose.” Maj. Op. 24. I disagree.
The prosecutor did not tell the jurors that they could not
consider Johnson’s “behavior” or his “yeses.” She said they
could not consider his consent. As the majority appears to
acknowledge, Maj. Op. 29, those are two different things.
Consent is an individual’s subjective willingness, sometimes
manifested by behavior or words, that some act or event occur.
See, e.g., Williams v. Walker-Thomas Furniture Co., 350 F.2d
445, 449 (D.C. Cir. 1965) (distinguishing, in contractual
                                7
context, between subjective consent and “an objective
manifestation of” it); RESTATEMENT (SECOND) OF TORTS
§ 892(1) (1979) (“Consent is willingness in fact for conduct to
occur. It may be manifested by action or inaction and need
not be communicated to the actor.”). If in fact consent were
necessarily synonymous with behavior or words, it would be
difficult to reconcile with the incapacity doctrine, under which
the law presumes that children, intoxicated persons and the
insane are deemed incapable of consent even if they “profess[]”
it. DAN B. DOBBS ET AL., THE LAW OF TORTS § 109 (2d ed.
June 2016) (“professed consent” does not “bar [a tort] claim if
the plaintiff lacked capacity to give consent”).

     Given the distinction between subjective consent and
physical or verbal manifestations of it, the prosecutor’s rebuttal
argument was correct. Whether Williams had the mens rea
for second-degree murder turned on whether he acted
“recklessly, in conscious disregard of an extreme risk of death
or serious bodily injury to” Johnson. Trial Tr. 39 (Nov. 9,
2010) (jury instructions). Johnson’s consent—his state of
mind—had nothing to do with Williams’s perception of risk.
Cf. United States v. Mi Sun Cho, 713 F.3d 716, 721-22 (2d Cir.
2013) (per curiam) (in sex-trafficking case, victim’s
“subjective willingness to travel” was wholly “immaterial to
the charges” because it went “to the irrelevant issue of her
consent”); People v. Mangiaracina, 424 N.E.2d 860, 863 (Ill.
App. Ct. 1981) (“[W]hether the [rape] victim did, in fact,
consent . . . involves her mental state, not the defendant’s.”).
The counterfactual the majority posits, Maj. Op. 23, only
illustrates the point. If Johnson had said “no” or “stop,” that
would indeed be relevant evidence. But the reason it would
be relevant has nothing to do with consent. See Glucksberg,
521 U.S. at 714. Instead, the reason words like “no” or “stop”
would be relevant is that they would tend to show that Johnson
sensed danger and communicated that to Williams, who would
                                8
then either (1) cease because of an extreme risk of death or
serious bodily injury to Johnson or (2) continue beating
Johnson in conscious disregard of that risk.

     Consider a hypothetical that even more plainly
demonstrates why consent, qua consent, had nothing to do with
Williams’s state of mind. Suppose a gang recruit said during
a jump-in: “I can’t breathe. I feel dizzy. But I still want in.
Just get it done.” The last two statements would manifest
consent but they would be irrelevant to the attacker’s intent,
especially in light of the statements “I can’t breathe” and “I feel
dizzy.” That is because words of consent are relevant only if
they tend to show that the attacker did not know that the victim
was in danger. And statements like “I can’t breathe” and “I
feel dizzy” would show beyond doubt that the victim was
indeed in danger.

     As the majority recounts, Maj. Op. 3-4, Johnson said
“‘Hell yeah,’” or words to that effect, when asked whether he
wanted the jump-in to continue. I do not dispute, as a matter
of relevance, that “Johnson’s repeated insistence that he
wanted the jump-in to continue might have signaled to
Williams that Johnson was in no serious danger.” 2 Maj. Op.
23. Crucially, however, the prosecutor never said otherwise.
Instead, she told the jurors that Johnson’s “consent” was
irrelevant. That was an accurate statement of law. If
Johnson had cried out “Kill me,” would it be proper for any
defense counsel to argue, or any judge to instruct, that the jury
could consider that as exculpatory evidence? Of course not.
The problem in this case has been the defense’s
insistence—during its closing argument and now on

    2
       In view of all of the evidence, however, I do not agree that
Johnson’s apparent bravado was as exculpatory as my colleagues
hold. See infra Point IV.B.
                               9
appeal—on using “consent” to describe Johnson’s physical
condition as communicated by Johnson’s words. And the
prosecutor’s reference to “consent” in rebuttal was an
understandable effort to correct the defense’s misuse of the
word.

    In any event, and contrary to the majority’s recounting, the
prosecutor did not say that the jury “could not consider
[Johnson’s] behavior for any purpose.” Maj. Op. 24
(emphasis added). Nor would a reasonable jury have
understood her to make such an argument in light of the
government’s having first elicited testimony about Johnson’s
behavior during the jump-in and not objecting when the
defense presented similar evidence.

           IV. Williams Suffered No Prejudice

     Nevertheless, the majority worries that the prosecutor
misled the jurors into categorically disregarding Johnson’s
purported “consenting behavior,” Maj. Op. 25, so that they
convicted Williams of second-degree murder when they might
otherwise have convicted him of manslaughter, Maj. Op.
25-28. I would not share its concern even if I thought the
prosecutor had misspoken. The district court thoroughly
apprised the jurors of the relevant law. Moreover, when
measuring the strong mens rea evidence under that error-free
jury charge, I am confident that a reasonable jury would have
convicted Williams of second-degree murder had the
prosecutor said nothing about the relevance vel non of
Johnson’s purported consent. Accordingly, “when all is said
and done,” any prosecutorial misstatement either “did not
influence the jury, or had but very slight effect.” Kotteakos v.
United States, 328 U.S. 750, 764 (1946).
                               10
       A. The Jury Charge Cured Any Misstatement

    After the prosecutor’s alleged misstatement, the defense
objected at sidebar. Trial Tr. 124 (Nov. 8, 2010). It later
proposed a curative instruction that would have said in part:

       [U]nder the law, you may consider Juwan
       Johnson’s consent to the initiation, among all
       the other evidence I have admitted, in
       determining whether the government has
       proven Mr. Williams’ intent to commit the
       crimes of second degree murder or involuntary
       manslaughter beyond a reasonable doubt.

Mr. Rico Williams’ Objection to Government’s Improper
Closing Argument and Motion for Curative Instruction at 4,
Dkt. No. 125 (emphasis added). The district court declined to
give the proposed instruction, see Trial Tr. 12-13 (Nov. 9,
2010), relying in part on its earlier ruling that “to tell [the
jurors] that they can consider consent as it relates to intent or
mens rea is not a fair statement of the law,” Trial Tr. 24 (Nov.
8, 2010). The court’s explanation bears lengthy reproduction:

       Now, I then went on to say last week . . . why I
       was not going to include [defense counsel’s]
       proposed          addition         to        the
       consent-is-not-a-defense instruction. Because
       his instruction, his proposed instruction or
       proposed addition, essentially said: Well, it’s
       not a defense, but consent is relevant to mens
       rea or intent. And I said I wasn’t going to give
       the instruction, and I said the reason I wasn’t
       going to give the instruction was because
       they’re two separate matters, and I’m already
       discussing mens rea and intent in each of the
                              11
       separate instructions       on   the   underlying
       offenses.

       ...

       And I’m not going to give a curative instruction
       because I think by giving a curative instruction,
       it undermines my rulings. And I didn’t tell the
       jury to strike and disregard [the defense’s]
       argument [about Williams’s intent]; [the
       prosecutor] is not the judge, and in her rebuttal
       argument she made the point that that argument
       was inconsistent with an instruction they are
       going to hear.

       But what I’m going to tell them this morning is,
       without giving a curative instruction, without
       highlighting what [the defense] said and
       without highlighting what [the prosecutor] said
       in their closing arguments, that they need to
       consider all of the instructions together and not
       take any one instruction out of context or
       highlight it to the exclusion of others. I think
       that’s part of the standard instructions.

Trial Tr. 12-13 (Nov. 9, 2010).

     In short, the district court declined to give the defense’s
curative instruction because it was wrong, just as the defense’s
proposed addition to the consent instruction had been wrong.
For reasons I have explained, Johnson’s subjective consent
was not itself relevant to Williams’s state of mind. The
curative instruction would have said the opposite. The court
therefore correctly declined to give it. 1 KEVIN F. O’MALLEY
ET AL., FEDERAL JURY PRACTICE AND INSTRUCTIONS § 7:3, at
743-44 & nn.11-12 (6th ed. 2006) (“Requested instructions
                               12
must be accurate or the court is under no obligation to give
them.”) (citing cases).

     Recognizing that the defense “might have been better
served to use a term such as ‘consenting behavior’ instead of
‘consent,’” Maj. Op. 29, my colleagues fault the district court
for failing to “rephrase[ ] the instruction to refer more directly
to Johnson’s statements and behavior,” Maj. Op. 30. The
court had no duty to fashion a suitable cure for a non-existent
ill. And it certainly did not have to focus the jury’s attention
on Johnson’s words in order to forestall prejudice from any
prosecutorial misstatement.

     A district judge has wide discretion in how he phrases his
instructions, Joy, 999 F.2d at 556, and in how he remedies
perceived trial errors, United States v. Foster, 557 F.3d 650,
654-55 (D.C. Cir. 2009). He may comment on the evidence
but he must “use great care” not to “be one-sided” because “his
lightest word or intimation is received with deference, and may
prove controlling” in the jurors’ minds. Quercia v. United
States, 289 U.S. 466, 470 (1933) (internal quotations omitted).
Unsurprisingly, then, other courts of appeals have cautioned
against including factual commentary in jury instructions.
See, e.g., United States v. Bowen, 437 F.3d 1009, 1018 (10th
Cir. 2006) (“[T]he district court must exercise care when
including illustrative examples of [a criminal element] in an
instruction . . . .”); Hardin v. Ski Venture, Inc., 50 F.3d 1291,
1294 (4th Cir. 1995) (“A court is not required to comment on
specific evidence in the course of giving a jury instruction, and
indeed often is well-advised not to.”).

     Here, the district court prudently declined to “highlight[ ]”
that Johnson’s words could have led Williams to believe that
Johnson wanted his beating to continue. Trial Tr. 13 (Nov. 9,
2010).     If the court had singled out that evidence,
                                 13
evenhandedness would have required recitation of evidence
favorable to the government, including that Williams led his
fellow gang members in stomping on Johnson and that he
denied Johnson’s request to be taken to the hospital. Starr v.
United States, 153 U.S. 614, 626 (1894) (agreeing with
Pennsylvania Supreme Court that judicial commentary on
evidence, “if stated at all,” should include both “that which
makes in favor of a party [and] that which makes against him”)
(internal quotation omitted); cf. Duke v. Uniroyal Inc., 928
F.2d 1413, 1421 (4th Cir. 1991) (“refusal to single out any
particular item of evidence” in jury instructions “is often a
sensible approach to evenhandedness in the presentation of the
law”).

     In any event, the district court’s rejection of the defense’s
curative instruction “may not be judged in artificial isolation,
but must be considered in the context of the instructions as a
whole and the trial record.” Estelle v. McGuire, 502 U.S. 62,
72 (1991) (internal quotation omitted); see Henderson v.
Kibbe, 431 U.S. 145, 152 n.10 (1977). There is no cause for
reversal if the instruction the defense sought “was substantially
covered in the charge actually delivered to the jury.” United
States v. Udo, 795 F.3d 24, 29 (D.C. Cir. 2015) (internal
quotation omitted). That was the case here; several features of
the jury charge ensured that the prosecutor’s statement, even if
erroneous, did not prejudice Williams.

      First, the district court told the jurors that “it’s your sworn
duty to base your verdict on the law that I give you in these
instructions and on the evidence that has been admitted in
trial.” Trial Tr. 21 (Nov. 9, 2010) (emphasis added). In the
same vein, the court instructed:

        [B]oth lawyers made reference to portions of
        these instructions yesterday during closing
                               14
       arguments, and we may have even made some
       minor wording changes since then, but I need to
       tell you that it is your duty to accept the law as I
       instruct you on the law, and you should
       consider all of the instructions as a whole.

Id. (emphasis added). The jury is presumed to have adhered
to that directive. See Richardson v. Marsh, 481 U.S. 200, 211
(1987).

     The majority concludes otherwise, theorizing that juries
generally give “particular weight” to prosecutorial statements
of law because they come “‘wrapped in the cloak of state
authority.’” Maj. Op. 25 (quoting Spivey v. Head, 207 F.3d
1263, 1275 (11th Cir. 2000)). Even assuming such a
phenomenon exists, it has no application here. The prosecutor
herself told the jury, immediately before commenting on the
law of consent, that “the judge is the one—he’s the final—he is
the expert on the law.” Trial Tr. 100 (Nov. 8, 2010). That
remark sent the jurors right back to the instructions, which did
not then lead them astray. See United States v. Hall, 610 F.3d
727, 743 (D.C. Cir. 2010) (district court’s charge cured
prosecutor’s misstatement of law, “particularly when the
erroneous argument was acknowledged by the prosecutor to be
subject to the court’s instructions”).

     Second, the district court instructed the jurors to “[d]ecide
the case solely from a fair consideration of all of the evidence”
and that “you alone decide what weight, if any, to give to the
evidence that’s been admitted.” Trial Tr. 22 (Nov. 9, 2010);
see id. at 28 (court also told them “you should consider all of
the evidence presented, both direct and circumstantial”). As
discussed, “the evidence . . . admitted” included Johnson’s
words during the jump-in. Accordingly, a reasonable jury
would understand that it “should consider” Johnson’s words
                              15
and give them whatever weight it thought they warranted.
And a reasonable jury would have similarly understood from
the court’s decision to let stand the defense’s closing argument
that Johnson “kept saying the same thing over and over and
over and over, yes, I want this” that it should consider those
words. Trial Tr. 32 (Nov. 8, 2010); cf. Boyde, 494 U.S. at 383
(rejecting claim that court and prosecutor misstated what
mitigating evidence could be considered during capital
sentencing proceedings, in part because “the context of the
proceedings would have led reasonable jurors to believe that
[the] evidence [at issue] could be considered”).

    Third, the district court explained in detail the mens rea
necessary to support a second-degree murder conviction.
Specifically, the court instructed:

       To kill with malice aforethought means to kill
       either deliberately and intentionally, or
       recklessly, in conscious disregard of an extreme
       risk of death or serious bodily injury to Juwan
       Johnson. To find that the defendant acted with
       malice aforethought, the government must
       prove beyond a reasonable doubt that the
       defendant acted with the specific intent to kill,
       or that the defendant acted with a reckless and
       wanton disregard for human life that was
       extreme in nature, and was aware that his
       conduct created an extreme risk of death or
       serious bodily injury.

       The fact that a reasonable person would have
       been aware of the risk would not sustain a
       finding of malice.        To prove malice
       aforethought, the government must show that
       the defendant acted with callous and wanton
                               16
       disregard of human life, and an extreme
       indifference to the value of human life. Only a
       finding of extreme recklessness regarding
       homicidal risk will support an inference of
       malice aforethought.

Trial Tr. 39-40 (Nov. 9, 2010).

     No one disputes that the foregoing instruction was correct
as far as it went and Williams faces an especially steep climb in
claiming prejudice from its failure to go further. Henderson,
431 U.S. at 155 (“An omission, or an incomplete instruction, is
less likely to be prejudicial than a [court’s] misstatement of the
law.”). For reasons already explained, the judge would have
been unwise, at the least, to adorn the instruction with
fact-specific guidance about what evidence may have satisfied
or negated the intent element. See Quercia, 289 U.S. at 470;
Starr, 153 U.S. at 626; Bowen, 437 F.3d at 1018; Hardin, 50
F.3d at 1294; Duke, 928 F.2d at 1421; see also, e.g., United
States v. Grover, 485 F.2d 1039, 1041-44 (D.C. Cir. 1973)
(affirming district court’s refusal to instruct on which aspects
of defendant’s conduct would make him aggressor for purpose
of self-defense instruction). Additional clarification is always
possible. But the cited cases tell us that it is not always
necessary or even prudent.

     Fourth, to accommodate the defense at least in part, the
district court modified the jointly-proposed consent instruction
by removing language to the effect that consent “should not be
considered.” See Trial Tr. 15-18 (Nov. 9, 2010). The court’s
final consent charge, to which both parties agreed, was as
follows:

       Consent is not a defense to second degree
       murder or involuntary manslaughter. Even if
       you find that the victim consented to the initial
                                  17
         assault, you may not consider consent as a
         defense. It is settled that a victim cannot
         consent to an assault that is likely to result in
         death or grievous bodily injury; further, under
         no circumstances is consent a defense to the
         crime of homicide.

Id. at 46. This instruction was plainly correct. See, e.g.,
Glucksberg, 521 U.S. at 714; Woods, 65 A.3d at 672; Durr,
722 So. 2d at 135; Hiott, 987 P.2d at 136-37; cf. Maj. Op. 28
n.5 (declining to decide whether instruction was correct).

     Fifth, notwithstanding the defense’s failure to propose a
legally correct curative instruction, the district court offered
yet another accommodation: the model “Proof of State of
Mind” instruction from the Criminal Jury Instructions for the
District of Columbia (commonly known as the Redbook).
Trial Tr. 14 (Nov. 9, 2010). The instruction would have
emphasized that the jury could consider “all” of the objective
facts and circumstances in determining Williams’s mental
state, supplying much of the clarification Williams sought. 3
     3
         The model charge reads in full: “Someone’s [intent]
[knowledge] [insert other appropriate state of mind] ordinarily
cannot be proved directly, because there is no way of knowing what
a person is actually thinking, but you may infer the someone’s
[intent] [knowledge] [other appropriate state of mind] from the
surrounding circumstances. You may consider any statement made
or acts [done] [omitted] by [name of the defendant], and all other
facts and circumstances received in evidence which indicate his/her
[intent] [knowledge] [other appropriate state of mind]. [You may
infer, but are not required to infer, that a person intends the natural
and probable consequences of acts s/he intentionally did or did not
do.] It is entirely up to you, however, to decide what facts to find
from the evidence received during this trial. You should consider
all the circumstances in evidence that you think are relevant in
determining whether the government has proved beyond a
                                  18
Id. By offering the instruction, the court accommodated the
defense as much as possible without erroneously injecting
“consent” into the mix.

     Williams declined the instruction. Trial Tr. 15 (Nov. 9,
2010). Yet he now claims that “the district court refused to
give any additional instruction to the jury,” Appellant’s Reply
Br. 26, and that the instructions “took away from the jury’s
consideration the most crucial surrounding facts and
circumstances,” Appellant’s Br. 64. I see no reason to grant a
new trial to a defendant who could have averted any
conceivable error or prejudice if he had agreed to the court’s
proposal. Had the Redbook instruction been given, it would
have provided further clarification—if any were needed—that
nothing in the charge “forb[ade] the jury from considering”
Johnson’s words during the jump-in. 4 Maj. Op. 31 (emphasis
omitted).



reasonable doubt that [name of the defendant] acted with the
necessary state of mind.” Criminal Jury Instructions for the District
of Columbia, No. 3.101 (5th ed. 2009).
     4
        To repeat, the jury was told that “[e]ven if you find that the
victim consented to the initial assault, you may not consider consent
as a defense.” Trial Tr. 46 (Nov. 9, 2010) (emphasis added). By
its terms, then, the instruction did not “forbid[ ]” the jury from
considering Johnson’s words. Maj. Op. 31 (emphasis omitted).

     Let me briefly reply to my concurring colleague, who
mistakenly emphasizes trial counsel’s role in explaining the law to
the jury, musing “Who’s right about the law?” Concur. Op. 2. The
answer is simple: It is the trial judge who is the sole lawgiver and, to
the extent he needed to clear up the “white noise” produced by
counsels’ differing legal arguments, he did so.
                               19
          B. The Mens Rea Evidence Was Strong

     Let me recap the analysis so far. Williams seeks reversal
because of a brief legal statement the prosecutor made during
nearly a full day of arguments, which arguments were followed
the next morning by extensive jury instructions. The district
court correctly instructed the jurors on mens rea, told them to
accept the court’s legal instructions and emphasized that they
should consider all of the evidence. The court also amended
the jointly-proposed consent instruction to accommodate the
defense’s concern about the prosecutor’s argument. Given
the charge as a whole, and even assuming the prosecutor
misstated the law, a curative instruction that separately detailed
less than all of the evidence relevant to mens rea would most
likely have been reversible error. Williams offered such a
curative instruction anyway. The court correctly rejected it
because it would have confused the jury by conflating
Johnson’s state of mind with Williams’s. Still, the court
offered an alternative that would have addressed the essence of
the defense’s concern. The defense declined the alternative.

     I believe Williams would have suffered no prejudice from
any prosecutorial error had the issue of his mens rea been
close: the court’s charge cured all ills. See Boyde, 494 U.S. at
384 (“[A]rguments of counsel generally carry less weight with
a jury than do instructions from the court.”); Watson, 171 F.3d
at 702 (in assessing prejudice from prosecutorial
misstatements, “the ameliorative effects of jury instructions are
not to be underestimated”); see also Venable, 269 F.3d at
1091-92 (court’s correct burden-of-proof instruction mitigated
prosecutor’s misstatement of law on same issue, court telling
jurors “it was the court’s responsibility to apprise [them] as to
the law”). To complete the analysis, however, I emphasize
my view that “Williams’s awareness of the risk” to Johnson
                               20
was not—as the majority erroneously concludes, Maj. Op.
26-27—a “close” question.

      The majority observes that no serious injuries had
occurred during earlier jump-ins. Maj. Op. 26. But this
jump-in was different in crucial ways that would have been
obvious to Williams. There were nine participants whereas
the usual complement had been four to six. Williams, the
ringleader and a prime participant, was about a foot taller than
Johnson. When Williams punched Johnson in the mouth at
the outset, “Johnson went straight down . . . to the ground.”
Trial Tr. 34 (Oct. 29, 2010). No one had ever fallen on the
first punch before. Williams hit Johnson in the face several
more times and Johnson went down repeatedly. When he got
up, “everybody” attacked him “like . . . piranhas.” Id.
Williams eventually “stomped on” him. Trial Tr. 30 (Oct. 25,
2010). That, too, was not “part of the rules” and had never
happened before. Id. The other gang members “[f]ollow[ed]
suit” in kicking Johnson, id., who “was curling up in a ball,” id.
at 31. When the kicking stopped, one participant lifted
Johnson to his feet and gang members held him up while
punching him. At least one witness “had never seen” that
either. Trial Tr. 35 (Oct. 29, 2010). Finally, the jump-in
lasted for some indeterminate period beyond the standard six
minutes because gang members, including Williams,
continued beating Johnson after “time” had repeatedly been
called. Trial Tr. 31 (Oct. 25, 2010); see Trial Tr. 143 (Oct. 29,
2010) (“[e]verybody who was not holding” Johnson up was
beating him, including Williams, “and no one stopped” when
“time” was called first two times).

     The majority notes that “members repeatedly asked
Johnson if he wanted to continue with the initiation and
testified that they would have stopped if he said no.” Maj. Op.
26. But after Johnson’s attackers lifted him to his feet—at
                               21
which point “[h]e looked scared for his life,” Trial Tr. 46 (Oct.
26, 2010)—they stopped asking him if he wanted to continue,
Trial Tr. 47 (Oct. 29, 2010).              And there is no
evidence—understandably—that Johnson, on his own, insisted
on continuing after that point.

     The majority says “Johnson had no unmistakable outward
signs of major injuries after the jump-in.” Maj. Op. 26. But
he was bleeding from the mouth and walked away from the
scene “[l]ike a drunk person.” Trial Tr. 31-32 (Oct. 25, 2010).
Those could be signs of either minor or major physical trauma.
A gang leader who had delivered a severe beating with eight
other men for over six minutes would not—unless extremely
reckless—rule out major trauma. A reasonable jury could
easily infer that Williams intended a serious injury because that
is, after all, the natural and probable consequence of a serious
beating. See United States v. Mejia, 597 F.3d 1329, 1341
(D.C. Cir. 2010) (upholding jury instruction that “[y]ou may
infer but are not required to infer that a person intends the
natural and probable consequences of acts knowingly done or
knowingly omitted”) (internal quotation omitted); see also
supra note 3.

     The majority points to testimony from a defense expert
that Johnson had an “underlying medical trait” that contributed
to or even “primar[ily] cause[d]” his death. Maj. Op. 26. But
the same expert—roundly rebutted by government experts in
any event—acknowledged that “the manner of Sergeant
Johnson’s death was . . . homicide” because “[t]he contributory
cause . . . was injury at the hands of others.” Trial Tr. 104
(Nov. 3, 2010).

     The majority gives no weight to Williams’s depraved
refusal of Johnson’s request for medical attention. I think that
is spectacularly mistaken. It is true, as Williams notes, that
                                   22
the “‘material issue is [his] state of mind at the time of the
homicide.’” Appellant’s Br. 63 (quoting United States v.
Johnson, 879 F.2d 331, 334 (8th Cir. 1989)) (emphasis in
Johnson). He cites no authority, however, that would exclude
from “the time of the homicide” the immediate aftermath of a
severe beating while the victim still clings to life.

     The very definition of homicide is “[t]he killing of one
person by another,” BLACK’S LAW DICTIONARY 851 (10th ed.
2014), which means the crime is not complete unless and until
the victim dies, see Trial Tr. 38 (Nov. 9, 2010) (district court
instructed jurors that “[f]irst” element government had to prove
was “that the defendant unlawfully killed Juwan Johnson”).
And the available case law makes clear that a defendant’s
refusal of medical attention for a victim he has beaten is strong
evidence of murder, particularly if the defendant’s aim is to
conceal the beating. See, e.g., United States v. Sarracino, 340
F.3d 1148, 1162-64 (10th Cir. 2003) (violation of
Confrontation Clause was harmless beyond reasonable doubt
in second-degree murder prosecution where evidence
“overwhelmingly” showed defendants had badly beaten
victim, “knew that the victim was severely hurt” and
nevertheless “decided to remove the victim from the scene in
hopes of avoiding detection of the crime”); 5 cf. United States

     5
        In Sarracino, the district court instructed the jurors in part:
“You also are permitted to find malice aforethought . . . if you find
that a person, while aware of a serious risk of death, failed to act after
having put another human being in a position of danger and creating
for himself a duty to rescue or to safeguard that other human being.”
340 F.3d at 1162 (internal quotation omitted). In closing, the
government argued that the defendants had “created for themselves a
duty to save” the victim but “le[ft] him to his own devices to die,”
which proved malice. Id. at 1163 (internal quotation omitted).
The Tenth Circuit quoted with approval both the instruction and the
closing argument, finding them “important” to its conclusion that the
                                23
v. Conatser, 514 F.3d 508, 522-24 (6th Cir. 2008) (affirming
district court’s conclusion, at sentencing, that defendant’s
failure to request medical attention for prisoner he had beaten
constituted malice); United States v. McDougle, 82 F. App’x
153, 157-58 (6th Cir. 2003) (unpublished) (affirming district
court’s conclusion, at sentencing, that defendants’ “efforts at
covering up [victim’s] injuries” from their earlier beating
constituted malice when cover-up prevented victim from
getting proper medical attention).

     Here, the continuum of depravity began with the beating
and extended through Williams’s refusal of Johnson’s request
for medical attention. After the jump-in, someone asked
Williams: “[W]hat if he has to go to the hospital[?]” Trial Tr.
93 (Oct. 29, 2010). Williams initially responded that “if he
has to go to the hospital, tell them he got jumped downtown.”
Id. But he assigned a gang member, Charris, to stay with
Johnson and “watch” him. Trial Tr. 59 (Oct. 26, 2010). That
was not altruism. When Johnson first said “that he wanted to
go to the hospital,” Charris “told him that . . . I couldn’t take
him because there was no way for me to tell them how he got
the bruises on him.” Id. at 63. In a fateful phone call about
20 minutes later, Williams directed that Johnson not be taken
to the hospital. Viewing the evidence as a whole, I believe it
shows in stark relief that the reason Williams assigned Charris
to watch Johnson was to ensure that Johnson would not seek
care on his own and thereby reveal the beating to outsiders.
That is malice on stilts.



Confrontation Clause violation was harmless. Id. at 1162-63.
Similarly, the prosecutor here argued in closing that Williams’s
refusal of Johnson’s request for medical attention was a “betrayal”
that led to Johnson’s death. Trial Tr. 38 (Nov. 8, 2010). Just so.
                               24
     The prejudice inquiry, I recognize, “is ‘not a mere
sufficiency-of-the-evidence inquiry.’” Maj. Op. 26 (quoting
United States v. Smart, 98 F.3d 1379, 1391 (D.C. Cir. 1996)).
But neither does it demand overwhelming evidence in order to
affirm, at least where the jury charge is correct and as thorough
as the one here. Cf. Brecht v. Abrahamson, 507 U.S. 619, 639
(1993) (prosecutorial error was harmless under Kotteakos
standard where “evidence of guilt was, if not overwhelming,
certainly weighty”). The evidence was unquestionably strong
enough (and, I believe, overwhelmingly so) to reject
Williams’s prejudice claim.

                           *****

     In my view, the prosecutor did not misstate the law. And
even if she did, I am confident that any “error did not influence
the jury, or had but very slight effect” in view of both the
compelling evidence of malice and especially the jury charge,
which was correct and measured in every particular.
Kotteakos, 328 U.S. at 764. The mischief the majority’s
holding is likely to cause is neither theoretical nor slight. My
colleagues have found reversible error in an experienced and
evenhanded trial judge’s refusal to single out specific—and
irrelevant—evidence in instructing the jury in a homicide
prosecution. Caveat the trial bench.

    Accordingly, I respectfully dissent from the reversal of
Williams’s second-degree murder conviction, a conviction
well warranted for his role in Johnson’s brutal beating and
death.
