United States v. David Bowser ( 2020 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 9, 2020 Decided June 30, 2020
No. 18-3055
UNITED STATES OF AMERICA,
APPELLANT
v.
DAVID G. BOWSER,
APPELLEE
Consolidated with 18-3062, 19-3037
Appeals from the United States District Court
for the District of Columbia
(No. 1:16-cr-00059-1)
Leslie McAdoo Gordon argued the cause and filed the
briefs for appellant/cross-appellee.
James Pearce, Attorney, U.S. Department of Justice,
argued the cause for appellee/cross-appellant. With him on the
briefs was Todd W. Gee, Deputy Chief. Elizabeth Trosman,
Assistant U.S. Attorney, entered an appearance.
Before: HENDERSON, GRIFFITH, and WILKINS, Circuit
Judges.
2
Opinion for the Court filed by Circuit Judge GRIFFITH.
GRIFFITH, Circuit Judge: A jury convicted David G.
Bowser of charges that he obstructed an investigation by the
Office of Congressional Ethics into his work as chief of staff to
a Member of Congress. In this appeal, we affirm the jury’s
verdict and the post-trial rulings of the district court from all
challenges by Bowser and the Government.
I
A
The evidence at trial established the following. Bowser
began working as the chief of staff for Paul Broun, a Member
of the House of Representatives from Georgia, in January
2009. Representative Broun first joined Congress after winning
a special election in 2007, and he was easily re-elected in 2008
and 2010.
In January 2012, Bowser was confident that
Representative Broun would again retain his seat after the
primary and general elections later that year. But even winning
politicians have flaws, and Representative Broun’s was—
according to Bowser—that he struggled with “messaging.”
Trial Tr. 32:16 (Mar. 15, 2018), J.A. 573. So in February 2012,
just as Representative Broun’s office was gearing up for
another election, Bowser sought to hire a “messaging
consultant” to help the Congressman “develop as a better
communicator.” J.A. 672. Brett O’Donnell was a seasoned
consultant with experience preparing President George W.
Bush and Senator John McCain for presidential debates. On
June 14, Bowser announced to the Congressman’s office that
O’Donnell would join “Team Broun as a communications and
messaging consultant to our official office.” J.A. 807.
3
Despite Bowser’s explanation that the new hire would help
only with official duties, O’Donnell soon found himself
working on the Congressman’s re-election campaign. In fact,
on the same day that Bowser hired O’Donnell, he asked him to
assist with the Congressman’s debate preparation. Just a week
later, O’Donnell prepared Representative Broun for yet another
debate. This shift in duties surprised O’Donnell. He testified at
trial that he felt like Bowser pulled a “bait and switch” by
retaining him “to do work for the official side” and then asking
him to perform campaign functions. Trial Tr. 52:13-20 (Mar.
1, 2018), J.A. 294.
O’Donnell’s campaign duties soon decreased. In July
2012, the Congressman won the Republican primary, and he
faced no serious opposition in the general election. But in early
2013, an incumbent Senator from Georgia announced his
retirement, and Representative Broun decided to seek the
vacant seat. O’Donnell once again found himself saddled with
campaign duties. He helped prepare the Congressman for eight
Republican primary debates and several campaign-related
speeches and interviews. O’Donnell testified at trial that, in
early 2013, he “was doing 60 percent official work, 40 percent
campaign work”; by the end of 2013, he performed “easily 80
percent campaign work, 20 percent official work.” Trial Tr.
101:19-22 (Mar. 5, 2018), J.A. 320.
Nothing prevented O’Donnell from assisting the campaign
as a volunteer or campaign employee, but House Rules forbade
the Congressman’s office from paying O’Donnell out of the
“Members’ Representational Allowance” (MRA). The MRA
provides funds “to support the conduct of the official and
representational duties of a Member of the House of
Representatives,” 2 U.S.C. § 5341(a); see also IDA A.
BRUDNICK, CONG. RESEARCH SERV., R40962, MEMBERS’
4
REPRESENTATIONAL ALLOWANCE: HISTORY AND USAGE
(2019), and the funds may not pay for campaign expenses.
Between June 2012 and March 2014, O’Donnell was paid over
$40,000 from the Congressman’s MRA funds. With one minor
exception not relevant here, O’Donnell was paid only with
MRA funds.
This possible misuse of congressional funds soon attracted
media scrutiny. In March 2014, a reporter asked Representative
Broun whether O’Donnell had been paid with taxpayer money
to provide debate coaching. The Congressman allegedly
slammed the door in the reporter’s face, and a local news outlet
published a story with the descriptive title, “Congressman
Slams Door on Channel 2 Reporter When Asked About
Campaign Coach.” Because of this press report, O’Donnell was
fired. He testified that Bowser informed him that “things [had]
just gotten too hot with this story, that it would do damage to
the campaign.” Trial Tr. 55:24-25, 56:1 (Mar. 5, 2018), J.A.
333-34. O’Donnell also testified that, during the same
conversation, Bowser told him for the first time that he had
been only a “volunteer with the campaign.” Id. at 56:16-24,
J.A. 334 (emphasis added). On March 25, Bowser emailed the
staff in the office to announce that Representative Broun
“reluctantly accepted [O’Donnell’s] resignation.” J.A. 823.
This media attention also spurred an inquiry from the
Office of Congressional Ethics (OCE or the “Office”). The
OCE is “an independent office” within the House that reports
to the House Committee on Ethics and investigates possible
misconduct by Members of Congress or their employees. H.R.
Res. 895, 110th Cong. § 1(a) (2008); see JACOB R. STRAUS,
CONG. RESEARCH SERV., R40760, HOUSE OFFICE OF
CONGRESSIONAL ETHICS: HISTORY, AUTHORITY, AND
PROCEDURES (2019). The Speaker of the House and the House
Minority Leader each appoint three private citizens to serve on
5
the Board, see H.R. Res. 895, 110th Cong. § 1(b) (2008), and
the OCE hires additional staff to conduct its day-to-day
business, see id. § 1(h). The Office may receive allegations of
possible misconduct “from any source,” including news reports
and submissions from the public. Trial Tr. 60:9-19 (Mar. 8,
2018), J.A. 458. And when two Board members authorize a
“preliminary review,” the Office’s staff must review the
allegations and make a recommendation to the Board. If the
Board concludes that misconduct occurred, it may
“recommend[]” that the investigated matter “requires further
review” by the Ethics Committee itself. H.R. Res. 895, 110th
Cong. § 1(c)(2)(B) (2008).
On April 1, 2014, OCE began such a preliminary review,
informing Representative Broun that if he “misused funds from
his [MRA]” to pay O’Donnell then “he may have violated
House rules and federal law.” J.A. 679. Bowser promptly
emailed O’Donnell to reiterate his view that any assistance on
the campaign was voluntary; he had been paid for only official
work. “We hired you,” Bowser wrote, “in an official capacity
to help the Congressman improve his speaking abilities.” J.A.
824. “Any debate advice you wanted to give him on your own
time, outside the official compound, has no bearing on the fact
that we hired you to work in an official capacity . . . .” Id.
In June, the Office issued a series of “Requests for
Information” (RFIs) to the Congressman’s staff, asking for
“[a]ll files, records, notes, communications, and any other
documents relating to Brett O’Donnell.” J.A. 683. Bowser’s
interference continued. For instance, one staffer testified that
he believed that Bowser instructed him to falsely certify that he
“didn’t have any information relevant” to the review. Trial Tr.
67:10 (Mar. 12, 2018), J.A. 501. Another testified that—on
Bowser’s instructions—she withheld campaign-related emails
that she had exchanged with O’Donnell, Trial Tr. 83-85 (Mar.
6
7, 2018), J.A. 401-03, including some from her official account
that “looked bad for the office,” id. at 86:4, J.A. 404.
Bowser also received his own RFI, and although Bowser
turned over emails from his official email account, he never
disclosed any emails that he exchanged with O’Donnell on his
personal account. Bowser also misled investigators about his
reasons for hiring O’Donnell. During his OCE interview, for
instance, he claimed that “at no point did we ever entertain the
idea that this would be a political adventure. This was purely
on the official side.” J.A. 701.
The Office’s review ended on June 25, 2014, and the
Board recommended that the Ethics Committee investigate
misconduct in Representative Broun’s office. But the
committee took no disciplinary action against the
Congressman. Representative Broun lost the Senate primary
and left office in January 2015, placing him beyond the
committee’s jurisdiction.
B
Though the Office’s review never culminated in
disciplinary action against the former Congressman, it
spawned this criminal prosecution against his chief of staff. On
April 6, 2016, a grand jury charged Bowser with obstruction of
Congress (Count One), see 18 U.S.C. § 1505; theft of
government funds (Count Two), see id. § 641; concealment of
material facts from the OCE (Count Three), see id.
§ 1001(a)(1); and five counts of making false statements to the
OCE (Counts Four through Eight), see id. § 1001(a)(2).
The case proceeded to trial. After the Government
presented its case-in-chief, Bowser filed a motion for
judgments of acquittal on Counts One through Seven. The
7
district court reserved ruling on this motion, proceeded with the
trial, then submitted the case to the jury. See FED. R. CRIM. P.
29(b). The jury convicted Bowser of obstructing Congress,
concealing material facts from OCE, and making three false
statements. The jury acquitted Bowser of two of the false-
statement charges. The jury also indicated that it was
“hopelessly deadlocked” on the theft charge, and the district
court declared a mistrial on that count. J.A. 105.
The district court then considered Bowser’s motion for
judgments of acquittal. At the Government’s request, the
district court dismissed the theft charge with prejudice. Next,
the district court granted Bowser’s motion for acquittal on the
obstruction-of-Congress charge, reasoning that § 1505 does
not “protect the OCE’s investigatory power.” J.A. 103. Finally,
the district court denied the motion for judgments of acquittal
on the concealment conviction and his false-statement
convictions.
This appeal followed. The Government challenges the
district court’s decision to grant a judgment of acquittal on the
obstruction-of-Congress charge. Bowser challenges his
concealment conviction, two of the false-statement
convictions, and the district court’s decision to dismiss the theft
charge with prejudice instead of granting a judgment of
acquittal. Last, Bowser claims that, because he should have
been acquitted on some of these counts, “spillover prejudice”
requires us to vacate his convictions on the false-statement
charges. We reject both parties’ arguments and affirm.
II
We begin with the Government’s appeal of the district
court’s order granting a judgment of acquittal on Bowser’s
obstruction-of-Congress charge. See 18 U.S.C. § 1505. That
8
statute criminalizes the obstruction of “any inquiry or
investigation [that] is being had by either House, or any
committee of either House or any joint committee of the
Congress.” Id. The Government concedes that the Office is
neither a “House,” nor a “committee,” nor a “joint committee.”
Gov’t Br. 49, 53 n.16. Instead, the Government emphasizes that
the statute extends to any investigations “being had by” the
House, which covers the Office’s investigations because “the
House itself initiated [them] through creating the OCE in the
first place.” Id. at 48.
We disagree. Section 1505’s specific reference to “either
House,” “any committee,” and “any joint committee” implies
that Congress meant to exclude other bodies within the
Legislative Branch. See Taylor v. FAA, 895 F.3d 56, 65 (D.C.
Cir. 2018) (“[T]he expression of one thing implies the
exclusion of others.”). Indeed, the statute’s failure to include
other congressional “offices” is especially strong evidence of
meaning here because other statutes do. For instance, the False
Statements Act applies to “any investigation or review,
conducted pursuant to the authority of any committee,
subcommittee, commission or office of the Congress.” 18
U.S.C. § 1001(c)(2) (emphasis added); see also 18 U.S.C.
§ 202(e)(3) (defining the “legislative branch” to include both
“the Congress” and “any other . . . office . . . established in the
legislative branch” (emphasis added)). Congress knows how to
refer to legislative offices when it chooses, and we must give
effect to the statute’s tailored language.
Attempting to side-step this textual argument, the
Government urges that the Office’s reviews are investigations
“being had by” the House or the Ethics Committee itself
because the Office functions as their “agent.” Gov’t Br. 51-53
(citing United States v. Senffner, 280 F.3d 755, 760 (7th Cir.
2002) (“[W]henever an entity acting for or at the direct request
9
of an agency has been obstructed, the agency itself has also
been obstructed.”)). The argument fails. First, the
Government’s agency theory creates surplusage; if § 1505
were interpreted to criminalize obstruction of Congress’s
“agents,” then the statute’s inclusion of “committees” and
“joint committees” would do little or no work. Moreover, the
House Rules themselves establish that the Office’s review
process is not yet an investigation by the House or the Ethics
Committee. The Office possesses only the limited power to
recommend that the allegations “require[] further review” by
the Ethics Committee, H.R. Res. 895, 110th Cong. § 1(c)(2)(B)
(2008), and the committee may “undertake an investigation”
“upon receipt of a report” from the OCE. Rules of the House
of Representatives, 116th Cong., Rule XI.3(b)(2) (2019)
(emphasis added). If the Ethics Committee “undertake[s] an
investigation” only after it receives the Office’s report, then the
process of creating that report cannot be an investigation
“being had by” the House or its committee.
We need not decide whether or in precisely what
circumstances a legislative office might work so closely with
the House or a committee that the investigation is “being had
by” an institution listed within § 1505. See Senffner, 280 F.3d
at 760. We hold only that—in these circumstances—the House
has structured its internal procedures such that the Office’s
reviews precede any investigation by the House or the Ethics
Committee. If Congress wishes to extend liability to those who
obstruct the work of the Office, it may do so, and it has model
language for such an amendment in the False Statements Act.
See 18 U.S.C. § 1001(c)(2). We thus affirm the judgment of
acquittal on the obstruction-of-Congress charge.
III
We next consider Bowser’s challenges to his convictions.
10
A
First, Bowser argues that the district court should have
granted his motion for a judgment of acquittal on the
concealment charge. See 18 U.S.C. § 1001(a)(1), (c)(2). Of
relevance here, that statute makes it unlawful to “conceal[] . . .
a material fact” during “any investigation or review” by an
“office of the Congress.” Id. To secure a conviction, the
Government must establish a “duty to disclose material facts
on the basis of specific requirements for disclosure of specific
information.” United States v. Safavian, 528 F.3d 957, 964
(D.C. Cir. 2008). Bowser asserts that he had no such duty to
disclose because “OCE’s review was an entirely voluntary
process,” and “there [was] no statute, regulation, or form that
imposed on [him] a specific requirement to disclose particular
information.” Bowser Br. 47.
We disagree. Bowser does not dispute that he failed to
produce emails from his personal account between himself and
O’Donnell. He also conceded at oral argument that a
government “form” can impose a duty to disclose. Oral Arg.
Tr. 32:24-25; see also Safavian, 528 F.3d at 965 n.7; United
States v. Calhoon, 97 F.3d 518, 526 (11th Cir. 1996). Here, the
form that Bowser received—the Request for Information—
identified the “specific information” that the Office sought, all
communications with O’Donnell. That form also advised
Bowser that he would need to “certify” that he “provided all
[responsive] documents,” and that this certification would be
“subject to the provisions of the Federal False Statements Act,
18 U.S.C. § 1001.” J.A. 835. Later, he signed two documents
certifying that he had fully complied with the RFI and
acknowledging that 18 U.S.C. § 1001 applied to his disclosure
of information. J.A. 837, 839. Altogether, Bowser affirmed that
he fully complied with a request for specific information that
11
was issued during a duly authorized ethics inquiry. These facts
establish a duty to disclose.
Bowser’s efforts to compare his case to Safavian fail. In
that case, the defendant—David Safavian—was an employee
of the General Services Administration (GSA). Safavian, 528
F.3d at 959. One of Safavian’s friends conducted some
business before GSA, and that friend invited Safavian to travel
to Scotland on a chartered plane for a five-day golfing trip. Id.
Safavian sought “an ethics opinion from GSA’s general
counsel about whether he could accept the air transportation as
a gift,” but he never disclosed that the friend conducted
business before the GSA. Id. at 960, 962. Later, GSA’s
Inspector General opened an investigation into the trip;
Safavian agreed to be interviewed, but he again failed to
disclose that his friend conducted business before GSA. Id. at
961. A jury convicted Safavian of two counts of concealment—
one for withholding information when he requested the ethics
opinion, the other for his incomplete answers to the Inspector
General. Id. at 962-63.
We reversed, reasoning that § 1001(a)(1) requires the
Government to establish “a duty to disclose material facts on
the basis of specific requirements for disclosure of specific
information.” Id. at 964 (emphasis added). In Safavian, the
Government asserted two insufficient bases for this duty. First,
it pointed to what we characterized as “vague standards of
conduct for government employees,” such as an instruction to
refrain from “us[ing] public office for private gain.” Id. at 964
(internal quotation marks omitted). Second, the Government
argued that “once one begins speaking when seeking
government action or in response to questioning, one must
disclose all relevant facts.” Id. at 965. But neither of these
sources triggered a duty to disclose because neither gave “fair
12
notice of what conduct [was] forbidden.” Id. at 964 (internal
quotation marks omitted).
Unlike the defendant in Safavian, Bowser did have “fair
notice” that he could be criminally prosecuted. The RFI
identified the specific information sought and informed him of
possible criminal liability under § 1001 if he withheld it.
Bowser seems to think that a voluntary process like an ethics
inquiry can never create a duty to disclose, but that stretches
Safavian too far. Section 1001 extends to “any investigation or
review” by an “office of the Congress,” 18 U.S.C. § 1001(c)(2)
(emphasis added), and that language easily encompasses the
OCE’s voluntary ethics investigations—so long as the
investigator gives “fair notice.” Because the form distributed to
and signed by Bowser satisfies this requirement, we affirm the
concealment conviction.
B
Bowser next argues that the district court should have
granted judgments of acquittal on two of the false-statement
charges, Counts Four and Seven. See 18 US.C. § 1001(a)(1).
Count Four charged Bowser with making a false statement
when he told the OCE investigators, “At no point did we ever
entertain the idea that this [O’Donnell’s services] would be a
political adventure. This was purely on the official side.”
Indictment ¶ 86, J.A. 67 (emphasis added). And likewise in
Count Seven: “I mean, bottom line is this was done because
[Representative Broun] significantly needed help in his
communicating ability and that’s the only reason why it was
done and, you know, we had no intention at all of doing
anything on the political side with this.” Id. ¶ 92, J.A. 70
(emphasis added). Bowser raises three challenges to these
convictions, but none is persuasive.
13
1
Bowser claims that his false-statement convictions are
nonjusticiable under United States v. Rostenkowski, 59 F.3d
1291 (D.C. Cir. 1995). There, we noted that the Constitution’s
Rulemaking Clause authorizes each House of Congress to
“determine the Rules of its Proceedings,” U.S. CONST. art. I,
§ 5, and we reasoned that “judicial interpretation of an
ambiguous House Rule runs the risk of the court intruding into
the sphere of influence reserved to the legislative branch under
the Constitution.” Rostenkowski, 59 F.3d at 1306. Under
Rostenkowski, then, a charge may be nonjusticiable if it
compels the jury to interpret an “ambiguous” House Rule.
Bowser says that his false-statement convictions must be
dismissed under Rostenkowski. He notes that the House Rules
authorize Congressmen to use MRA funds for “primarily
official duties that are not campaign related.” J.A. 199-201.
Bowser suggests that the false-statement charges invited the
jury to interpret the House Rules by determining Bowser’s
“primary purpose” in hiring O’Donnell. Bowser Br. 50-51.
Bowser’s Rostenkowski argument fails. As discussed, the
Government alleged that Bowser falsely stated that he expected
O’Donnell to perform only official work—not campaign work.
E.g., Indictment ¶ 86, J.A. 67 (“This was purely on the official
side.”). That allegation does not implicate the House Rules at
all. The Rules concern whether O’Donnell could be
compensated with congressional funds; the allegations
supporting the false-statement charges concern only what kind
of work Bowser anticipated that O’Donnell would perform.
Accordingly, the jury could convict Bowser of making these
false statements without interpreting the House Rules, and so
the charges were justiciable.
14
2
Bowser argues that the jury lacked sufficient evidence to
conclude that his statements to the OCE investigators were
false. We owe “tremendous deference” to the jury’s verdict,
United States v. Long, 905 F.2d 1572, 1576 (D.C. Cir. 1990),
and Bowser’s conviction must be upheld if “any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. Wahl, 290 F.3d
370, 375 (D.C. Cir. 2002) (internal quotation marks omitted).
The standard of review presents an insurmountable hurdle
for Bowser. As the district court noted, a “voluminous record”
supports the jury’s verdict that Bowser always intended for
O’Donnell to perform campaign work. J.A. 122. For instance,
Bowser conducted O’Donnell’s interview in the offices of the
National Republican Campaign Committee, a venue where
Republican Congressmen perform campaign activities that
would be impermissible in congressional office buildings.
Perhaps most tellingly, just two hours after Bowser officially
hired O’Donnell, Bowser asked O’Donnell to assist with
debate preparation. And O’Donnell testified that—just a month
after he had been hired—he felt like Bowser had pulled a “bait
and switch” by “retaining [him] to do work for the official side”
and then asking him to perform campaign functions. Trial Tr.
52:13-20 (Mar. 1, 2018), J.A. 294.
Bowser offers an alternative interpretation. He suggests
that Representative Broun “had no need for campaign
assistance” when Bowser first hired O’Donnell because the
Congressman faced only “token opposition” in the 2012
election. Bowser Br. 55-56. But the jury is entitled to “draw a
vast range of reasonable inferences,” Long, 905 F.2d at 1576,
and a rational factfinder could infer that Bowser always
15
expected to enlist O’Donnell on the campaign, regardless of its
competitiveness. We decline to overturn the jury’s verdict.
3
Finally, Bowser challenges the jury instructions. The
district court instructed the jury that the statement must have
been “false, fictitious, or fraudulent”—an instruction that
precisely tracks the statute’s language. J.A. 627; 18 U.S.C.
§ 1001(a)(2). Bowser claims that the jury should’ve been
instructed that Bowser’s statements “were false under any
reasonable interpretation of them.” Bowser Br. 58. Bowser
relies exclusively on the out-of-circuit decision in United States
v. Migliaccio, 34 F.3d 1517 (10th Cir. 1994), but he fails to
explain—and we fail to see—that decision’s relevance here.
We thus decline to adopt Bowser’s proposed jury instruction.
C
After the jury deadlocked on the theft charge, the district
court dismissed the charge with prejudice. See FED. R. CRIM.
P. 48(a). Unsatisfied with that result, Bowser argues that he
“should have been acquitted at the close of the Government’s
case.” Bowser Br. 34 (emphasis added). Bowser again relies on
Rostenkowski, arguing that the theft charge “asked the jury to
invade the legislative province” by “interpret[ing] internal
rules adopted by the House to govern its own Members.” Id. at
38-39.
The Government responds that this claim is moot, see
Gov’t Br. 23-25, and we must first address this threshold
jurisdictional issue. Bowser’s claim becomes moot only if “it
is impossible for a court to grant any effectual relief whatever.”
Chafin v. Chafin, 568 U.S. 165, 172 (2013) (internal quotation
16
marks omitted); see also Almaqrami v. Pompeo, 933 F.3d 774,
779 (D.C. Cir. 2019).
Bowser contends that the case remains live “because he
has a right to clear his good name.” Bowser Reply 8. The
“dismissal did not exonerate him,” Bowser says, so he is
entitled to seek the judgment of acquittal, which would amount
to a ruling that he “was in fact innocent.” Id. We disagree.
Bowser’s Rostenkowski argument entitles him—at most—to a
dismissal of the allegations against him because they lie
beyond a federal court’s authority to adjudicate. A favorable
ruling under Rostenkowski would not announce his innocence;
instead, it would announce that trying the theft charge risks
judicial intrusion “into the sphere of influence reserved to the
legislative branch.” Rostenkowski, 59 F.3d at 1306. Because
Bowser’s argument under Rostenkowski would not entitle him
to the declaration of innocence that he seeks, we cannot redress
this alleged reputational harm.
Bowser next claims that “he was prejudiced with respect
to the other charges by [the theft charge’s] existence.” Bowser
Reply 9. When addressing mootness, we must assume the
success of his argument on the merits. Almaqrami, 933 F.3d at
779. And if Bowser were correct, we could redress that harm
by vacating for another trial on the other charges. See United
States v. Rooney, 37 F.3d 847, 855 (2d Cir. 1994). This
potential remedy keeps Bowser’s claim alive—but barely. We
do not think that Bowser really did suffer prejudice from the
district court’s refusal to acquit him before submitting the theft
charge to the jury. Again, the Government presented
overwhelming evidence that Bowser withheld information
from and lied to the Office—the factual bases for his remaining
convictions. We thus cannot see the theft charge’s “substantial
and injurious effect or influence in determining the jury’s
verdict.” United States v. Baugham, 449 F.3d 167, 174 (D.C.
17
Cir. 2006) (internal quotation marks omitted). Because any
error was harmless, we need not address the merits of Bowser’s
Rostenkowski argument.
D
Finally, Bowser claims that we must reverse three of his
false-statement convictions because of a “prejudicial spillover
of evidence” from allowing the jury to consider the theft,
obstruction, and concealment charges. Bowser Br. 59 (citing
Rooney, 37 F.3d at 855); cf. United States v. Mathis, 216 F.3d
18, 25 (D.C. Cir. 2000) (discussing the possibility of
prejudicial error “when multiple defendants are charged with a
large and complex conspiracy and spillover prejudice confuses
the jurors”). He faults the district court because the jury
“should have been instructed to disregard the evidence”
relating to these counts. Bowser Br. 61. But as we’ve
explained, overwhelming evidence supports the jury’s verdict
on the false-statement charges. Rooney, 37 F.3d at 855-56
(considering the “strength of the government’s case on the
counts in question” when assessing spillover prejudice). Thus,
any failure to instruct the jury to ignore evidence presented for
other counts was harmless, and we decline to vacate Bowser’s
convictions. See Baugham, 449 F.3d at 174.
IV
We affirm the judgment of the district court.
So ordered.