author: PILLARD, Circuit Judge:

text:
    UNITED STATES of America, Appellee v. Donnell CREWS, also known as Donnell C. Crews, also known as Darnell C. Crews, Appellant
    No. 14-3089
    United States Court of Appeals, District of Columbia Circuit.
    Argued February 23, 2017
    Decided May 9, 2017

      Jerald R.. Hess, Washington, DC, argued the cause for appellant. With him on the briefs was Charles B. Wayne, Washington, DC.
    Nicholas P. Coleman, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Elizabeth Trosman, Elizabeth H. Danello, and David B. Kent, Assistant U.S. Attorneys.
    Before: GARLAND, Chief Judge, and KAVANAUGH and PILLARD, Circuit Judges.
   PILLARD, Circuit Judge:

On September 21, 2011, three men approached Hugh Whitaker, an employee of a cash-in-transit service, as he exited a CVS in Washington, D.C. One of the men drew a handgun and demanded the cash Whitaker had just picked up from the CVS. Whitaker drew his own handgun and they exchanged gunfire. Whitaker retreated into the CVS unharmed. The three other men, one of whom had been shot, fled the scene. The police apprehended Donnell Crews and his half-brother, Anthony James, a couple of blocks away. After a witness identified Crews and James as two of the men who confronted Whitaker at the CVS, the police arrested them and charged them with attempted robbery. James agreed to a plea deal and testified against Crews and another alleged co-conspirator. Crews’s first trial ended with a hung jury. The government retried him, and the jury found him guilty.

Crews now claims that two errors in the district court’s evidentiary rulings require us to vacate his conviction. First, Crews argues the district court erred by denying his motion for a mistrial after Joseph Brennan, an emergency room nurse, testified that a gravely injured alleged co-conspirator arrived at the hospital with “brain matter that was exposed.” But the district court remedied what little prejudice Brennan’s testimony might have produced by giving a curative instruction to the jury. Second, Crews contends that the district court erred by striking the entire testimony of his sole witness, Vakeema Ensley, who, after testifying in Crews’s support, asserted her constitutional privilege against self-incrimination near the outset of cross examination by the prosecution. Crews asserts that the district court should have struck only the testimony that related to the specific line of questioning corresponding to the cross-examination questions as to which Ensley invoked the privilege. But the record shows that Ens-ley asserted a blanket privilege against any further cross examination, and that Crews made no contemporaneous objection to the evidentiary decisions the district court made in response. The district court did not plainly err by striking the entirety of her testimony. Detecting no reversible error on either point, we affirm.

I.

According to the government’s evidence, Anthony James and Appellant Donnell Crews met with two other men the evening before the attempted robbery, Kirk Dean (the brother of James’s best friend) and Antwon Crowder (Dean’s brother). That evening, Dean convinced James and Crews to participate in a planned robbery. The next day, Dean and Crowder met James at the home of Crews and James’s grandmother. When Crews’s fiancée, Vak-eema Ensley, drove up in her car, Dean asked her for the keys, explaining that Crews had told him that he could drive it. At first Ensley refused, but then she surrendered the keys and stormed inside. Crews soon joined the others and the four men set off in Ensley’s car, donning latex gloves during the drive. Crowder parked the car around the corner from the CVS and waited in the car.

Whitaker, an employee of Garda Cash Logistics, a secure cash-in-transit company, arrived at the CVS in an armored truck just before 11:00 am. While the driver, his co-worker James Jones, remained in the truck, Whitaker entered the CVS and accepted approximately $10,000 to be deposited. When Whitaker exited the store, three men—later identified as Dean, Crews, and James—confronted him. One of the men began to draw a gun from his waistband, but the gun momentarily slipped in his grasp, giving Whitaker enough time to draw his own handgun. The assailant fired at Whitaker, but missed. Whitaker returned fire as he retreated into the CVS, managing to shoot Dean in the jaw and elbow.

The three men then ran back to Ens-ley’s car where Crowder was waiting for them. Despite sustaining two gunshot wounds, Dean told the others he wanted to go back after Whitaker. Crews attempted to usher Dean into the car, urging him to go to the hospital. A brief struggle ensued, as Dean tried to pull away, but Crews managed to force Dean into the car. Crow-der drove away with Dean beside him. Crews and James took off on foot, with James quickly discarding his jacket, scarf, and latex gloves in an alleyway as they ran. The police apprehended Crews and James a couple blocks from the CVS. Jones, the armored truck driver, later identified James and Crews as two of the participants in the crime, and the police arrested them both for attempted robbery.

Meanwhile, Crowder raced to the hospital with Dean bleeding in the passenger seat. Traffic cameras captured a few images of the exterior of Ensley’s car speeding through the neighborhood, but no other evidence revealed what happened during that ride. By the time Crowder reached the hospital, Dean had sustained another gunshot wound, this time to his head. Crowder pulled into the hospital’s ambulance parking area, exited the car, used his shirt to wipe fingerprints from the door, and hurried away. Emergency room nurse Joseph Brennan discovered Dean slumped in the passenger seat in bloody clothing. At trial, the government and the defendants stipulated that Dean later died as a result of a gunshot wound unrelated to the attempted robbery—presumably the unexplained gunshot wound that he sustained while in transit from the CVS to the hospital. The police later arrested Crowder in connection with the attempted robbery. The police recovered physical evidence near the CVS and in Ensley’s car, including James’s jacket, scarf, and gloves, and a piece of a latex glove with Crews’s DNA on the inside surface.

The government jointly tried Crews and Crowder. The first trial ended with a hung jury, and re-trial proceeded before the same district judge. The government called Brennan, the emergency room nurse, as a witness at both trials. At the first trial, Brennan testified that he discovered Dean in the passenger seat of the car, covered in blood, with a head wound and matted hair. But at the second trial Brennan added that he could see “brain matter that was exposed” as he examined Dean in the car. Supp. App. 234. Crowder’s counsel objected. He noted that the parties had carefully avoided discussing the gunshot wound that killed Dean. He objected that Brennan’s reference to exposed brain matter might appear to contradict James’s testimony that, shot only in the elbow and jaw, Dean ran from the CVS back to the car. The later gunshot was not at issue in this case, but Crowder’s counsel argued that the jury would erroneously infer that Dean’s apparently much more serious, “drop-and-fall” head wound happened during the attempted robbery, contradicting testimony about Dean’s actions after suffering lesser wounds at the CVS and prejudicing the defense. Supp. App. 237.

Having heard from all counsel and at the defense’s request, the district judge agreed to address any potential confusion from Brennan’s testimony by reminding the jury that Dean died from a gunshot wound unrelated to the attempted robbery. Id. at 237-42. After cross examination, Crews and Crowder moved for a mistrial, arguing that it would be impossible to “un-ring the bell” after the jury heard Brennan’s graphic testimony. Id. at 241. The district judge denied the motion, but he instructed the jurors to disregard the testimony they heard “about brain matter and matted, bloody hair,” and urged them not to allow sympathy or pa'ssion to affect their judgment. Trial Tr. 123-24, Feb. 20, 2014.

Crews’s counsel did not attempt to rebut the government’s evidence placing him near the CVS when the attempted robbery occurred. Instead, counsel suggested during his opening statement that Crews knew about the planned robbery, sought to avoid participating, but wanted to do so in a way that would not cause the others to think he had deliberately abandoned them. In support of that narrative, the defense called Crews’s fiancée, Vakeema Ensley, as a witness at both trials to testify how Crews occupied himself elsewhere on the morning, of the robbery. Ensley testified that, during the morning before the attempted robbery, she and Crews drove to Beltsville, Maryland to- buy a part for her mother’s car. While in Maryland, a surveillance camera captured Crews entering a 7-Eleven. After running the errand, Ensley and Crews drove into the District, because they both had a shift scheduled later that day with the Greater Washington Urban League where they worked. They first headed to Crews’s grandmother’s house. As they approached the house, Crews asked Ensley to drop him off a few blocks away to meet his brother. After she dropped him off, Ensley parked her car outside the grandmother’s home, entered and left her keys on the radiator by the front door, and went upstairs to he down briefly to wait for Crews.

During her direct examination Ensley testified that she did not know Antwon Crowder or Kirk Dean before the arrests. At the first trial, the government attempted to impeach Ensley by asking about her grand jury testimony, in which she referred to “Kirk” as Crews’s friend. She explained that she only learned that Crews and Kirk Dean were friends after the police arrested Crews. At the second trial, Ensley once again disavowed any prior acquaintance with Crowder or Dean. This time, the government focused on Crowder. When the prosecutor asked Ensley if she had ever received a call from Crowder, she answered that she had not. The government then began to ask Ensley about a recorded phone conversation between her and. Crews while he was detained awaiting trial, but before Crowder had been arrested. In the recording, Ensley is heard telling Crews that she had received a call from Crowder which she returned. But before the government could ask about the recording, the district judge interrupted the cross examination and held a sidebar. Once it became clear that the government believed Ensley had perjured herself by denying pre-arrest acquaintance with Crowder, the court appointed an attorney to represént her.

After consulting with Ensley, the government, and defense counsel, Ensley’s attorney acknowledged that there was “a potential problem based upon her earlier testimony” because the “jail call transcript” arguably contradicted her testimony that she had never received a phone call from Crowder. Trial Tr. 107, March 5, 2014. “But more importantly,” he added, “it’s my impression that this is not the only source of potential impeachment that they may have for Ms. Ensley.” Id. Ensley’s attorney also said the Government took the position that the testimony Ensley gave before the grand jury and at the first trial “may not have been entirely accurate.” Id. Because of that, the attorney explained, Ensley decided that “she’s going to assert her Fifth [Amendment privilege against self-incrimination,] .... and she will not answer any further questions.” Id. at 108. Ensley confirmed on the récord that she wished to assert her constitutional privilege and acknowledged that by doing so she was giving up her right to testify. Supp. App. 400-01.

The parties then turned to what to do about Ensley’s direct testimony. Crews’s counsel urged the district judge not to require Ensley to assert her Fifth Amendment privilege in the presence of the jury. The government, for its part, encouraged the district judge to strike all of Ensley’s testimony—the direct testimony as well as the cross examination. Crews’s counsel did not state an objection to the government’s request, but raised a concern that the jurors might infer that they should also ignore the surveillance video taken outside the Maryland 7-Eleven, which placed Crews in the suburbs doing errands with Ensley on the morning of the robbery.

The district judge allowed the 7-Eleven security video to remain in the record because the parties had stipulated to its authenticity, and did not require Ensley to assert her privilege before the jury. With those issues resolved, the district judge instructed the jury to disregard the entirety of Ensley’s testimony. After deliberating, the jury found Crews guilty of attempted robbery.

II.

On appeal, Crews argues that the district court erred in handling Brennan’s and Ensley’s testimony. He contends that the district court should have granted his motion for a mistrial after Brennan’s testimony, or at least should have considered a remedy more limited than striking all of Ensley’s testimony after she asserted her privilege against self-incrimination. We disagree on both points and hold that the district court did not err in its treatment of either witness’s testimony.

A.

Crews claims that the district court abused its discretion by denying his motion for a mistrial after emergency room nurse Joseph Brennan testified that Dean appeared gravely wounded, and in particular that he had “what looked like brain matter that was exposed.” Supp. App. 234. Crews argues that the district judge’s curative instructions did not mitigate the prejudice to him from Brennan’s “brain matter” testimony. We review the district court’s denial of Crews’s motion for a mistrial for abuse of discretion. United States v. Gartmon, 146 F.3d 1015, 1027 (D.C. Cir. 1998). “A mistrial is a severe remedy—a step to be avoided whenever possible, and one to be taken only in circumstances manifesting a necessity therefor.” United States v. McLendon, 378 F.3d 1109, 1112 (D.C. Cir. 2004) (quoting United States v. Clarke, 24 F.3d 257, 270 (D.C. Cir. 1994)). A mistrial is warranted if inadmissible evidence is erroneously presented to the jury that is so “highly prejudicial” that the jury cannot reasonably be expected to ignore it. United States v. Eccleston, 961 F.2d 955, 961-62 (D.C. Cir. 1992). On review, we must therefore determine “the extent to which the defendant was unfairly prejudiced.” McLendon, 378 F.3d at 1112. To that end, we “consider a number of factors, including the force of the unfairly prejudicial evidence, whether that force was mitigated by curative instructions, and the weight of the admissible evidence that supports the verdict.” Id.

All three of these factors weigh against Crews. First, Brennan’s testimony, while graphic, had only the slightest prejudicial potential. Crews contends that the testimony may have led the jury to conclude that Crews callously left Dean to die. Alternatively, he suggests that the jury may have believed that Dean became gravely injured during the attempted robbery (rather than after James and Crews left the scene), which would contradict James’s testimony that Dean was able to run back to the car. But Brennan’s “comment was brief, and, viewed in context, less harmful to [Crews] than [he] maintains.” United States v. Wheeler, 753 F.3d 200, 207 (D.C. Cir. 2014). Multiple witnesses testified that all three men ran from the CVS. Thus, the only plausible inference is that Dean sustained his fatal injury after he and Crowder separated from Crews and James. By the same token, the jury had no reason to believe that Crews abandoned Dean to die; in fact, the evidence was uniformly to the contrary. James testified that after he, Dean, and Crews ran to the car, Dean turned to go back to re-engage in a firefight with Whitaker. It was only because Crews physically prevented Dean from doing so and forced him into the getaway car that Dean was taken to the hospital.

Second, the district judge mitigated any prejudice from Brennan’s testimony by his curative instructions to the jury. We generally presume that “a jury will follow an instruction to disregard inadmissible evidence inadvertently presented to it” absent “an overwhelming probability that the jury will be unable to follow the court’s instructions.” Greer v. Miller, 483 U.S. 756, 766 n.8, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987). At the close of Brennan’s testimony, the district judge reminded the jurors that Dean died from an unrelated gunshot wound and instructed them to “disregard the testimony [they] heard about brain matter and matted, bloody hair.” Trial Tr. 123-24, Feb. 20, 2014. The district judge also warned the jurors not to allow sympathy or passion to affect their judgment. Crews claims those instructions did not cure the prejudice because they were “neither immediate nor emphatic.” Appellant Br. 29. But the district court gave the curative instruction at the close of Brennan’s testimony. And the quality of the instruction was consistent with curative instructions that this court has previously viewed as sufficiently emphatic. Compare Trial Tr. 123-24, Feb. 20, 2014, with McLendon, 378 F.3d at 1113 (characterizing the district court’s instruction “reminding the jury ... to disregard” the testimony as “stern[ ]”).

Third, the government provided ample evidence to support the jury’s verdict, making it exceedingly unlikely that Brennan’s testimony that he saw “brain matter” changed a possible acquittal to a conviction. See McLendon, 378 F.3d at 1112. Crews argues otherwise. He likens the prosecution’s case against him to the evidence presented in United States v. Eccleston, 961 F.2d 955. There, we vacated the conviction of a defendant after the jury heard inadmissible hearsay testimony related to a fact central to the prosecution’s ease: whether the defendant currently lived at his mother’s house when the police discovered drugs and weapons inside. Id. at 960-61. The defendant claimed he had moved out of the house and was living in a nearby apartment. But an investigating officer testified that he stopped three men walking toward the house who told him they were on their way to purchase drugs from the defendant. The district judge instructed the jury to disregard the hearsay testimony, but denied the defendant’s motion for a mistrial. We reversed, explaining that “the danger of prejudice” was particularly severe “because of the weakness of the government’s case,” which relied on “wholly circumstantial” evidence, including ambiguous statements by the defendant’s parents and suggestions that the defendant lived at his mother’s house in the past. Id. The prejudicial hearsay thus could not be cured, necessitating a mistrial.

Here, by contrast, the evidence that Crews engaged in the attempted robbery was direct and strong. Crews claims that the evidence only placed him in the general vicinity of the CVS. But that ignores James’s testimony that Crews came with him and Dean to the confrontation with Whitaker at the CVS. Jones, the driver of the Garda armored truck, also identified Crews after police apprehended him a few blocks from the store as one of the three men who participated in the robbery attempt. And the police discovered Crews’s DNA on the inside of a piece of a latex glove found in Ensley’s car. Noting that the first trial ended in a mistrial, Crews suggests that Brennan’s graphic testimony at the second trial tipped the jury against him, but “the fact that [the] case previously ended in a mistrial is not sufficient to establish that the case was close.” McLendon, 378 F.3d at 1115. Given the weight of the evidence against him, there is no reasonable chance that Brennan’s testimony had a material effect on the jury.

E.

We are also unpersuaded by Crews’s argument that the district court violated his constitutional right to call witnesses in his defense when it struck the entire testimony of his sole witness, Vakeema Ensley, in response to her invocation of her privilege against self-incrimination. Ensley initially invoked the privilege in response to a cross-examination question about whether she knew Antwon Crowder before the arrests but, following colloquy among counsel and the court, Ensley received appointed counsel and asserted a blanket privilege against any further testimony. The district court, at the government’s request, responded by striking all of Ensley’s direct testimony. Crews’s trial counsel requested that Ensley not have to invoke the privilege on the stand and that the 7-Eleven security video remain in evidence, but did not object to the striking of Ensley’s direct testimony.

Having failed to argue in the district court that Ensley’s direct testimony could be retained consistently with her invocation of the Fifth Amendment, Crews now faults the district court for failing to inquire sua sponte into the scope of Ens-ley’s privilege. Under our precedent, blanket assertions of the privilege against self-incrimination are disfavored. See United States v. Thornton, 733 F.2d 121, 125-26 (D.C. Cir. 1984). We have made clear, however, that “the district court’s failure to inquire sua sponte whether the witness was entitled to assert a blanket privilege” does not result in plain error if the district court had some basis in the record supporting the witness’s broad assertion. United States v. Ortiz, 82 F.3d 1066, 1073 (D.C. Cir. 1996).

Despite the absence of a contemporaneous objection, Crews urges us to review the decision for abuse of discretion rather than plain, error, relying primarily on United States v. Wilson, 605 F.3d 985 (D.C. Cir. 2010). In Wilson, we reviewed the district court’s evidentiary ruling for abuse of discretion when it was “apparent from the context” of the district court’s reasoning that the defendant had raised a Confrontation Clause claim. Id. at 1011-12. But it is not “apparent from the context” here that Crews raised a constitutional objection to the district court’s decision to allow Ensley’s broad invocation of her constitutional privilege and then remedy any prejudice to the government by striking her testimony. We therefore review for plain error. See Ortiz, 82 F.3d at 1072-73. To prevail, Crews must show “(1) that there was an error, (2) that the error was clear or obvious, (3) that it affected [his] substantial rights, and (4) that it seriously affected the fairness, integrity, or public reputation of the judicial proceedings.” United States v. Gooch, 665 F.3d 1318, 1332 (D.C. Cir. 2012) (citing United States v. Olano, 507 U.S. 725, 732-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)).

Here, the first two prongs of the plain error test—whether there' was an error that was clear or obvious—are dis-positive. The parties agree that we should assess the district court’s decision to strike Ensley’s testimony under the standard the Second Circuit used in United States v. Cardillo, 316 F.2d 606 (2d Cir. 1963). In that case, a government witness testified on direct examination but avoided being impeached during cross examination because he invoked his privilege against self-incrimination. Id. at 611-13. The defendants’ attorneys unsuccessfully urged the district court to allow them to proceed with cross examination or, in the alternative, that the court should strike the direct testimony. Id. at 611-12. In holding that the district court’s handling of the privilege was reversible error, the Second Circuit developed an analytic rubric that other courts have found useful.

To illustrate how the measures a court must take to avoid prejudice vary by context, the Cardillo court distinguished three situations in which a witness might refuse to respond to questions, and the corresponding cures: First, refusal to respond where “the answer would have been so closely related to the commission of the crime that the entire testimony of the witness should be stricken”; second, refusal to answer questions “connected solely with one phase of the case in which event a partial striking might suffice”; and, third, refusal to answer questions involving “collateral matters or cumulative testimony concerning credibility which would not require a direction to strike,” but could instead be handled by issuing a curative instruction to the jury. Id. at 613. The court explained that a “distinction must be drawn between cases in which the assertion of the privilege merely precludes inquiry into collateral matters- which bear only on the credibility of the witness and those cases in which the assertion of the privilege prevents inquiry into matters about which the witness testified on direct examination.” Id. at 611. Even as it reversed the district court’s failure to strike the witness testimony, the court of appeals stressed that not every refusal to answer “requires the striking of [a witness’s] testimony or a part thereof.” Id. at 613. Other circuits have embraced Cardillo, see, e.g., United States v. Gary, 74 F.3d 304, 310 (1st Cir. 1996); Denham v. Deeds, 954 F.2d 1501, 1503 (9th Cir. 1992); Carlos v. Wyrick, 753 F.2d 691, 693 (8th Cir. 1985), but we have not yet had occasion to do so.

We note at the outset the potential confusion engendered by Crews’s reliance on Cardillo, the facts of which do not cleanly map onto those in Crews’s case. The defendants in Cardillo sought to cross examine a government witness who invoked his privilege against self-incrimination. 316 F.2d at 611-12. Allowing the witness to avoid cross examination without striking any of his direct testimony would have impaired the defendants’ Sixth Amend-, ment right to confront witnesses against them. But here, the tables are turned. It is the government that sought to cross examine a defense witness who invoked her privilege against self-incrimination. The potential prejudice to the government from preventing its cross examination of Ensley, unlike the prejudice to the defendants in Cardillo, has no constitutional dimension. Whereas in Cardillo the defendants’ confrontation rights required that witness testimony be stricken, Crews argues the inverse: that his constitutional right to present witnesses in his favor forbade the court from striking Ensley’s testimony. Cardillo’s underlying analysis sheds light on Crews’s claim, but it does not pick up on Crews’s important point about his constitutional right to present witness testimony in his defense. See Denham, 954 F.2d at 1503 (“Cardillo and cases like it do not address the tension inherent, when the witness is defendant’s, between the prosecution’s need to cross-examine and the defendant’s right to call witnesses on her own behalf.”).

Even assuming, as both parties do, that the Cardillo framework applies, it does not support Crews’s claim of error. Crews would have us treat his claim under the third category, viewing Ensley’s assertion of privilege as preventing cross examination only into the “collateral” matter of her “credibility.” 316 F.2d at 613. The court thus erred, says Crews, by striking Ens-ley’s entire testimony rather than retaining it with curative jury instructions. Appellant Br. 19.

Cardillo’s analysis of credibility issues is more nuanced than Crews suggests. It does not treat all questions concerning credibility as “collateral,” nor does it suggest that the related testimony of a witness who refuses to answer questions going only to credibility need • never be stricken. That would make no sense; witness credibility is sometimes the linchpin of an entire defense. See Harbor Ins. Co. v. Schnabel Found. Co., 946 F.2d 930, 935 (D.C. Cir. 1991). Rather, Cardillo’s third category refers to privilege invocations that defeat a defendant’s ability to elicit “cumulative testimony concerning credibility,” where the type of testimony concerns the “general unsavory character of the witness.” Cardillo, 316 F.2d at 613 (emphasis added). Indeed, the Cardillo court itself found reversible error in the trial court’s failure to strike related testimony where the privilege claim prevented the defendant from challenging the witness’s credibility through cross examination that “might have established untruthfulness with respect to specific events of the crime charged.” Id.

Ensley’s invocation of her privilege against self-incrimination fell within Car-dillo’s first category, not its third. The government attempted not merely to question Ensley’s general credibility by, for example, asking about her own involvement in crime or her reputation for truthfulness, see id. at 612-13, but sought to question her regarding “specific events of the crime charged,” id. at 613, namely, the likelihood that Ensley willingly gave her car keys to the alleged co-conspirators. If the jury were to credit Ensley’s testimony that she did not know Dean and Crowder, it would be less likely to believe James’s testimony that Ensley loaned them her car. The government’s questions about her knowledge of Crowder thus related to an event the government sought to prove.

Crews contends that the jury should have been able to rely on the bulk of Ensley’s direct testimony, as it had at the first trial. But he fails to acknowledge that Ensley did not limit her invocation of the privilege. Ensley’s court-appointed counsel not only noted that “there is a jail call transcript which arguably” contradicted her testimony about Crowder, but he also told the district judge that his conversations with the prosecution left him with the impression that the government had other sources of “potential impeachment” evidence. Supp. App. 392. In view of the government’s position that Ensley had also perjured herself before the grand jury and during her testimony in the previous trial, however, Ensley’s counsel stated that “she will not answer any further questions.” Supp. App. 393 (emphasis added). Ensley likewise acknowledged without qualification that she wished to give up her right to testify.

Finally, in support of his claim that striking Ensley’s testimony in its entirety was error, Crews offers alternatives less damaging to his defense that he contends the district court could have explored, including reading to the jury the transcript of Ensley’s testimony from the first trial. See Appellant Br. 21-24. Crews does not argue that the Constitution required the district court to. employ the alternatives he suggests, but raises them to demonstrate that the “district court had multiple ways in which it could have reconciled the government’s right to cross examine Ens-ley with Crews’[s] constitutional rights to call witnesses and present a defense.” Appellant Reply Br. 13-14. We are willing to assume that the district court had viable alternatives, but Crews did not suggest any at trial. The court did not plainly err by failing to consider them sua sponte. See Ortiz, 82 F.3d at 1072-73; see also United States v. Hargrove, No. 99-3298, 2000 WL 1227895, at *2 n.1 (10th Cir. Aug. 30, 2000) (“That the district court did not give a limiting instruction or consider ‘evidentiary alternatives’ ” did not establish reversible error if the defendant “neither requested an instruction nor presented ‘alternatives’ during the course of trial.”).

We acknowledge that the district court could have done more to test the precise basis and scope of Ensley’s invocation of her privilege, but the court’s failure to inquire further is unsurprising where none of the parties asked it to do so at the time. On plain error review, we cannot say it was “clear or obvious,” Gooch, 665 F.3d at 1332, that Ensley had asserted her Fifth Amendment privilege against self-incrimination only with respect to certain, limited questions. Thus, the district court did not plainly err by excluding all of her direct testimony.

Because the district court did not commit reversible error by denying Crews’s motion for a mistrial or striking Ensley’s testimony, we affirm the judgment of conviction.

So ordered.


source: Caselaw Access Project

author: MILLETT, Circuit Judge:

license: Public Domain

text:
    AQUALLIANCE, Appellant v. UNITED STATES BUREAU OF RECLAMATION, Appellee
    No. 15-5325
    United States Court of Appeals, District of Columbia Circuit.
    Argued October 17, 2016
    Decided May 9, 2017

      Matt Kenna argued the cause and filed the briefs for appellant.
    Carl E. Ross, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief was R. Craig Lawrence, Assistant U.S. Attorney.
    Before: BROWN, MILLETT and WILKINS, Circuit Judges.
   MILLETT, Circuit Judge:

There may be “water, water, everywhere,” but nary a water well to be found. AquAlliance wants to know where the wells are, and it filed a Freedom of Information Act (“FOIA”) request to find out. But the federal government declined to say, invoking FOIA Exemption 9, which permits the withholding of “geological and geophysical information * * * concerning wells,” including “maps.” 5 U.S.C. § 552(b)(9). The question before us is whether Exemption 9 permits the government to withhold information and maps disclosing the locations and depth of certain water wells. We hold that Exemption 9 means what it says and thus the government’s withholding was permissible.

I

A

Congress enacted FOIA to “permit access to official information long shielded unnecessarily from public view.” Milner v. Department of the Navy, 562 U.S. 562, 565, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011) (quoting EPA v. Mink, 410 U.S. 73, 80, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973)). However Congress was also aware that “legitimate governmental and private interests could be harmed by release of certain types of information.” Department of Justice v. Julian, 486 U.S. 1, 8, 108 S.Ct. 1606, 100 L.Ed.2d 1 (1988) (quoting Federal Bureau of Investigation v. Abramson, 456 U.S. 615, 621, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982)). FOIA thus “balance[s] the public’s need for access to official information with the Government’s need for confidentiality.” Weinberger v. Catholic Action of Hawaii, 454 U.S. 139, 144, 102 S.Ct. 197, 70 L.Ed.2d 298 (1981). To that end, FOIA exempts nine categories of records from the government’s otherwise broad duty of disclosure. See 5 U.S.C. § 552(b). While those exemptions “must be narrowly construed,” Milner, 562 U.S. at 565, 131 S.Ct. 1259 (quoting Abramson, 456 U.S. at 630, 102 S.Ct. 2054), courts still must respect the balance that Congress struck and give the exemptions the “meaningful reach and application” that their plain text requires, John Doe Agency v. John Doe Corp., 493 U.S. 146, 152, 110 S.Ct. 471, 107 L.Ed.2d 462 (1989); see also DiBacco v. United States Army, 795 F.3d 178, 183 (D.C. Cir. 2015).

At issue in this case is Exemption 9, which provides in full that FOIA’s general duty of disclosure has no application to “geological and geophysical information and data, including maps, concerning wells.” 5 U.S.C. § 552(b)(9).

B

The Department of Interior’s Bureau of Reclamation oversees water resource management across the United States. Among the Bureau’s many programs is the Central Valley Project, the “largest federal water management project in the country.” Central Delta Water Agency v. Bureau of Reclamation, 452 F.3d 1021, 1023 (9th Cir. 2006). The Project comprises a series of dams, twenty-one reservoirs, eleven hydro-power plants, and 500 miles of canals and aqueducts that distribute water south from the Sacramento and San Joaquin Rivers in Northern California, which together serve 20 million people and 7 million acres of farm land in California. San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 593-594 (9th Cir. 2014). Water districts within the Central Valley Project can sell their river water to other districts further south if the Bureau approves that water transfer. See Central Valley Project Improvement Act, Pub. L. No. 102-575, § 3405(a), 106 Stat. 4600, 4709-4712 (1992).

Plaintiff AquAlliance is a non-profit organization dedicated to protecting the Northern California ecosystem and watersheds. Concerned about the potential adverse effects of water transfers on the environment, AquAlliance has frequently submitted comments to the Bureau on water transfer applications.

In November 2013, AquAlliance filed a FOIA request seeking copies of all documents related to water transfers that occurred in 2013. In May 2014, AquAlliance filed a similar FOIA request for all documents related to water-transfer applications filed with the Bureau for 2014. When the Bureau failed to provide timely responses to both requests, AquAlliance filed suit in the United States District Court for the District of Columbia to compel disclosure of the requested documents. That lawsuit apparently prompted the Bureau to turn over most of the requested records. But, as relevant here, the Bureau redacted information relating to water-well construction, completion, depth, and location.

AquAlliance and the Bureau both filed motions for summary judgment. The district court denied AquAlliance’s motion and granted summary judgment to the Bureau on the ground that Exemption 9 permitted the withholding of well depth and location information. See AquAlliance v. Bureau of Reclamation, 139 F.Supp.3d 203, 209 (D.D.C. 2015). The court reasoned that the statutory text draws “no distinction * * * among types of wells, and * * * provides no reason to think that water wells would be excluded from the exemption’s purview.” Id. at 209-210. The district court also noted that well location and depth “is seemingly prototypical ‘geophysical information.’ ” Id. at 211.

AquAlliance appealed in the hope that this court would read the statutory text differently. We do not.

II

We review the district court’s grant of summary judgment de novo. See Citizens for Responsibility and Ethics in Washington v. Federal Election Comm’n, 711 F.3d 180, 184 (D.C. Cir. 2013). The burden is on the government to prove that a claimed FOIA exemption applies. See National Ass’n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002).

In determining the applicability of Exemption 9, we “start[] with its text.” Milner, 562 U.S. at 569, 131 S.Ct. 1259. In this case, that is also where we end. As noted earlier, Exemption 9 permits the Bureau to withhold from disclosure “geological and geophysical information and data, including maps, concerning wells.” 5 U.S.C. § 552(b)(9). On its face, AquAlliance’s request seeks “information and data” “concerning” the depth and location of “wells,” specifically “including maps.” The ordinary meaning of “wells” includes water wells. See, e.g., Well, Black’s Law Dictionary (10th ed. 2014) (defining “well” as “[a] hole or shaft sunk into the earth to obtain a fluid, such as water, oil, or natural gas”) (emphasis added).

The depth and location of wells straightforwardly qualifies as “geological and geophysical information,” 5 U.S.C. § 552(b)(9). Geological and geophysical records document the physical composition and structure of (for present purposes) the Earth, including its subsurface. See, e.g., 8 McGraw-Hill Encyclopedia of Science & Technology 36 (11th ed. 2012) (defining “geology” as “[t]he study of the Earth’s materials and of the processes that shape them”); id. at 80 (defining “geophysics” as “[t]he study of the Earth and its relation! ] to the rest of the solar systems,” including “the Earth’s interior”); see also Oral Argument at 8:24-8:36 (AquAlliance counsel: “I think the definition of geophysical refers to more the structure of the underground area.”). Geological maps, for example, often disclose a region’s topographical features, plate tectonics, and soil composition. See 8 McGraw-Hill Encyclopedia, supra, at 42-43. Hydrogeological maps, in particular, show the locations of aquifers conveying water beneath the Earth’s surface.

Providing the well-depth and location information to AquAlliance would thus necessarily disclose geological or geophysical information. After all, to function, water wells must be drilled deep enough to reach the sub-surface water table. So the depth and location of wells reveal the location both of groundwater deposits or flows and of aquifers or the water table. That is archetypical geological and geophysical information, which is obtained through geophysical processes. See, e.g., 8 McGraw-Hill Encyclopedia, supra, at 72-73 (seismic mapping is used “in groundwater studies, engineering geophysics, and mining to map the water table”); id. at 77 (electrical survey methods are effective “in exploring for ground water and in mapping bedrock”). AquAUiance’s FOIA request thus falls squarely within Exemption 9.

AquAlliance voiced two objections to that plain-text reading. First, AquAlliance argues that information should only qualify as “geological and geophysical” if it (i) is technical or scientific, and (ii) would bestow a competitive advantage on the person who receives it. That argument fails because there is nothing ambiguous about “geological and geophysical,” at least not in a way that would permit judicially en-grafting a competitive-advantage limitation onto the text.

AquAlliance points to the legislative history of Exemption 9. But neither the House nor the Senate Report contains any reference to competitive disadvantage or scientific technicalities. S. Rep. No. 813, 89th Cong., 1st Sess. 37 (1965); H.R. Rep. No. 1497, 89th Cong., 2d Sess. 32 (1966). Notably, when Congress wanted to craft a FOIA exemption to protect trade secrets and competitive financial or scientific information, it knew how to say so. See 5 U.S.C. § 552(b)(4) (applicable to confidential “commercial or financial information”).

AquAlliance also argues that Exemption 9 was meant to apply only to oil and gas wells, reasoning that, for such wells, geological and geophysical information can have significant value to economic competitors. The short answer is that—whatever AquAlliance believes Congress might have meant—Congress said geological and geophysical information “concerning wells,” without any such adjectival limitation.

AquAlliance points out that the House Report discusses Exemption 9⅛ purpose as protecting oil and gas companies from competitors eager to freeload on the companies’ research investments. See H.R. Rep. No. 1497, supra, at 32 (“Witnesses contended that disclosure of the seismic reports and other exploratory findings of oil companies would give speculators an unfair advantage over the companies which spent millions of dollars in exploration.”).

That is no help to AquAlliance. The Supreme Court has used legislative history only to “illuminate ambiguous text” in FOIA. Milner, 562 U.S. at 572, 131 S.Ct. 1259; see also Department of State v. Washington Post Co., 456 U.S. 595, 599, 102 S.Ct. 1957, 72 L.Ed.2d 358 (1982). The problem for AquAlliance is that there is nothing ambiguous about Exemption 9’s unqualified reference to “wells.”

In any event, nothing in the House Report says that protecting oil and gas companies was the House’s only concern. And the Senate Report on the bill lacks any such limiting language. Instead, the Senate Report explains that the Exemption was 'added “to protect from disclosure certain information which is highly valuable to several important industries and which should be kept confidential when it is contained in Government records'.” S. Rep. No. 813, supra, at 37. Water wells directly implicate that purpose, given the value of water and competing demands for it, especially in the Western United States. See, e.g., Michael Wines, West’s Drought and Growth Intensify Conflict Over Water Rights, NYtimes.com (March 16, 2014), https://www.nytimes.com/2014/03/17/us/ wests-drought-and-growth-intensify-conflict-over-water-rights.html (“Residents of the arid West have always scrapped over water.”).

AquAlliance, in short, asks the court to use “ambiguous legislative history to muddy clear statutory language,” Milner, 562 U.S. at 572, 131 S.Ct. 1259. That we cannot do. The proper course, instead, is for this court to assume that Congress meant what it said, and said what it meant.

The judgment of the district-court upholding the Bureau’s withholding of water well location and depth information under Exemption 9 is affirmed.

So ordered.

      . Samuel Taylor Coleridge, The rime of the Ancient Mariner (1798).

      . See, e.g., Kenneth E. Lite, Jr., Hydrogeologic Mapping, Water Encyclopedia, http://www. waterencyclopedia.com/Hy-La/ Hydrogeologic-Mapping.html (last visited April 26, 2017).

      . See Loughrin v. United States, - U.S. -, 134 S.Ct. 2384, 2391, 189 L.Ed.2d 411 (2014); Connecticut National Bank v. Germain, 503 U.S. 249, 253-254, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) ("We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there.").

      . Because we conclude that the Bureau properly withheld the well depth information under Exemption 9, we do not reach the Bureau's separate argument that the information is also covered by Exemption 4, 5 U.S.C. § 552(b)(4).


author: KAVANAUGH, Circuit Judge:

text:
    Yorie Von KAHL, Plaintiff-Appellee v. BUREAU OF NATIONAL AFFAIRS, INC., Defendant-Appellant
    No. 16-7033 Consolidated with 16-7034
    United States Court of Appeals, District of Columbia Circuit.
    Argued December 2, 2016
    Decided May 9, 2017

      Laura R. Handman, Washington, DC, argued the cause for defendant-appellant/cross-appellee. With her on the briefs were Lisa B. Zycherman and Jay Ward Brown, Washington, DC.
    Kevin T. Baine, Thomas G. Hentoff, Nicholas G. Gamse, Charles D. Tobin, Washington, DC, Jonathan Hart, Jonathan Donnellan, Kristina Findikyan, David McCraw, New York, NY, Kurt Wimmer, Bruce D. Brown, Washington, DC, and Gregg P. Leslie were on the brief for amici curiae Coalition of Media Organizations in support of defendant-appellant/cross-ap-pellee.
    Gregory J. Dubinsky, appointed by the court, argued the cause as amicus curiae in support of plaintiff-appellee/cross-appel-lant. With him on the brief was Michael J. Gottlieb, Washington, DC.
    Yorie Von Kahl, pro se, filed briefs for plaintiff-appellee/cross-appellant.
    Before: ROGERS, KAVANAUGH, and WILKINS, Circuit Judges.
   KAVANAUGH, Circuit Judge:

The First Amendment guarantees freedom of speech and freedom of the press. Costly and time-consuming defamation litigation can threaten those essential freedoms. To preserve First Amendment freedoms and give reporters, commentators, bloggers, and tweeters (among others) the breathing room they need to pursue the truth, the Supreme Court has directed courts to expeditiously weed out unmerito-rious defamation suits. See generally Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). In this case, we follow that Supreme Court directive.

In 1983, Yorie Von Kahl was convicted in federal court of murdering two U.S. Marshals. Kahl was sentenced to life in prison. In the ensuing years, Kahl has repeatedly turned to the courts, the media, and the public in an effort to publicize his plight and have his conviction overturned and his sentence vacated.

In June 2005, Kahl filed a mandamus petition in the Supreme Court. The petition asked for Kahl’s sentence to be vacated. As part of its regular reporting on the Supreme Court, the Bureau of National Affairs (known as BNA) summarized Kahl’s mandamus petition in one of BNA’s publications, Criminal Law Reporter. The report recounted the “ruling below,” including the sentencing judge’s statement that Kahl lacked contrition and believed that the murders were justified by his religious and philosophical beliefs. In fact, however, those statements had been made at the sentencing hearing by the prosecutor, not by the judge.

Kahl sued BNA for defamation. Kahl argued that BNA falsely reported that the sentencing judge (rather than the prosecutor) had said that Kahl lacked contrition and believed the murders were justified. BNA moved for summary judgment, asserting among other things that BNA did not act with actual malice in failing to identify the correct speaker at the sentencing hearing. In particular, BNA pointed out that the excerpted transcript of the sentencing hearing that was attached as an appendix to Kahl’s mandamus petition did not identify the prosecutor as the speaker and led BNA’s reporter to believe that the statements were in fact made by the sentencing judge.

The District Court denied BNA’s motion for summary judgment. The District Court concluded that the inaccuracy of BNA’s report sufficed for Kahl to overcome summary judgment and obtain a trial on his defamation claim. Recognizing the importance of the First Amendment issue, however, the District Court certified the issue for interlocutory appeal under 28 U.S.C. § 1292(b). On appeal, BNA argues that the inaccuracy of the report alone does not constitute sufficient evidence of actual malice for Kahl to overcome summary judgment. Otherwise, according to BNA, the actual malice standard would be toothless. BNA further argues that the remaining evidence in the record does not suffice for Kahl to overcome summary judgment.

We agree with BNA. We therefore reverse the order of the District Court denying summary judgment and remand with directions that the District Court grant summary judgment to BNA on these defamation claims.

I

Yorie Von Kahl and his father, Gordon, were vehemently opposed to federal taxation and to federal interference in their lives. They belonged to anti-government groups that shared those views.

In 1977, Gordon was convicted of failing to file income tax returns. In 1980, Gordon did not appear in court after he was charged with a probation violation. M-though the court issued an arrest warrant, Gordon repeatedly evaded arrest.

In 1983, U.S. Marshals received word that Kahl family members—including Gordon. and Yorie—might be attending a meeting in Medina, North Dakota. The Marshals went to arrest Gordon. But the Marshals soon found themselves in a shoot-out with Kahl family members. During this shoot-out, two U.S. Marshals were shot and killed.

Yorie Von Kahl was subsequently convicted in federal court of two counts of second-degree murder and sentenced to two concurrent life terms. See United States v. Faul, 748 F.2d 1204, 1207-08 (8th Cir. 1984). Kahl’s convictions and sentences were upheld on direct appeal and collateral review. See id. at 1223 (direct appeal); Von Kahl v. United States, 242 F.3d 783, 793 (8th Cir. 2001) (affirming denial of motion to vacate sentence under 28 U.S.C. § 2255); Von Kahl v. United States, 321 Fed.Appx. 724, 732 (10th Cir. 2009) (affirming dismissal of habeas petition under 28 U.S.C. § 2241).

The trial attracted regular press coverage. See BNA App. 53-102. In the ensuing years, moreover, Kahl continued to publicize his opposition to federal taxation. He gave an extensive on-camera interview for the documentary Death and Taxes. See id. at 103-04, 160. During the interview, he said that the shooting “stemmed from our political and religious ideology” and that the Marshals “needed to be shot.” Id. at 160. He also published a book about his case. Id. at 127-28. And he maintained a website defending his cause and advocating for his release from prison. Id. at 160.

Kahl has also continued to press his case in the courts. In 2005, he petitioned the Supreme Court for a writ of mandamus that would vacate his sentences. Kahl’s mandamus petition included an appendix with an excerpted transcript from his sentencing hearing. Id. at 209-11. The excerpted transcript did not expressly identify who was speaking at the hearing. The excerpted transcript opened with a statement that Kahl showed “not even a hint of contrition. The man refused to even talk to the probation officer. We have the statements at trial and those issued to the press and whatnot that this man honestly believes that these murders, cold blooded calculated murders were justified by some sort of a perverted religious philosophical belief.” Id. at 209-10. Two paragraphs later in the excerpted transcript, the sentencing judge announces Kahl’s sentence.

A summary of Kahl’s mandamus petition was later published by the Bureau of National Affairs in its Criminal Law Reporter. The Criminal Law Reporter includes a “Cases Docketed” section where BNA summarizes petitions submitted to the Supreme Court. On August 17, 2005, the Cases Docketed section summarized Kahl’s mandamus petition. BNA employee Alisa Johnson prepared the report of Kahl’s petition based on her review of the petition and the attached appendix. Johnson Decl. ¶ 5 (BNA App. 284). The report stated the following, with the key parts bolded for ease of reference:

Homicide—Murder of U.S. marshals— Jury instructions—Sentencing.
Ruling below (D. N.D., 6/24/83):
Petitioner, who showed no hint of contrition and made statements to press that he believed that murders of U.S. marshals in course of their duties were justified by religious and philosophical beliefs, is committed to custody of U.S. Attorney General for imprisonment for life based on his convictions on two counts of violating 18 U.S.C. §§ 1111, 1114, and 2, terms to run concurrently; for 10-year term of imprisonment on each of four counts on which he was convicted of violating 18 U.S.C. §§ 111, 1114 and 2, which terms will run concurrently but consecutively to life term; to five-year term of imprisonment for violating 18 U.S.C. §§ 1071 and 2, term to run consecutively to 10-year term and life term; and to five-year term of imprisonment on his conviction for violating 18 U.S.C. § 371, term to run concurrently to five-year, 10-year, and life terms.
Questions presented: (1) Must this Court issue writ of mandamus where federal court lacked authority to sen-tenee petitioner upon offenses for which jury returned general verdicts of acquittal and for which jury additionally returned special verdicts for offenses clearly beyond those permitted by constitution and relevant statute; by its plain language—offense that always was and remains exclusive state and nonfed-eral offense? (2) Must this Court issue writ of mandamus to enforce petitioner’s right to trial by jury where, as here, (1) district court ignored general acquittals for killing U.S. marshals while engaged in performance of their official duties, (2) relied upon verdict for offense punishable only in special maritime and territorial jurisdiction of United States by adding elements from acquitted counts and from outside record to sustain jurisdiction to impose sentence otherwise clearly and patently illegal?
Petition for mandamus filed 6/17/05, by Carl Nadler, and Heller, Ehrman, White & McAuliffe, both of Washington, D.C., and Barry A. Bachrach, and Bowditch & Dewey LLP, both of Worcester, Mass.

BNA App. 274 (emphasis added).

Johnson’s supervisor at BNA, Michael Moore, reviewed the report and approved it for publication. Moore Deck ¶ 4 (BNA App. 266). Both Johnson and Moore stated that they believed the report accurately represented the petition and appendix. Johnson Decl. ¶ 11 (BNA App. 285); Moore Deck ¶ 5 (BNA App. 266).

In 2007, nearly two years later, Kahl’s attorney sent BNA a letter objecting to the report. According to Kahl’s attorney, the report falsely stated that Kahl had shown no hint of contrition and that Kahl believed the murders were justified. But the letter did not say that the prosecutor— rather than the sentencing judge—had made those statements at the sentencing hearing. Kahl’s attorney requested a retraction, correction, and apology. See BNA App. 251-53.

After receiving the letter, Moore reviewed the petition, the appendix, and BNA’s report of those documents. Moore Deck ¶ 7 (BNA App. 266-67). Although he “continued to believe that the summary published in August 2005 accurately represented the contents of Mr. Von Kahl’s own petition,” Moore nonetheless published a clarification. Id. The clarification, published July 18, 2007, read in full:

In a Summaries of Recently Filed Cases entry that ran at 77 CrL 2127, concerning U.S. Supreme Court petition No. .04-1717, the summary of the sentencing judge’s ruling below should have begun: “Petitioner who was said to have believed that murders were justified,....”

BNA App. 281 (emphasis added). The result of this clarification was in effect to change the relevant portion of the original report from “Ruling below (D. N.D., 6/24/83): Petitioner, who showed no hint of contrition and made statements to press that he believed that murders of U.S. marshals in course of their duties were justified by religious and philosophical beliefs, is committed to custody of U.S. Attorney General for imprisonment for life” to “Ruling below (D. N.D., 6/24/83): Petitioner who was said to have believed that murders were justified, is committed to custody of U.S. Attorney General for imprisonment for life.” So the clarification indicated that the sentencing judge in his ruling had referenced some other unspecified person who in turn had said that Kahl believed the murders were justified.

Kahl was still unhappy. Several months later, Kahl himself sent BNA another letter. BNA App. 259-60. In that letter, Kahl for the first time said that the relevant portion of his excerpted transcript quoted statements from the sentencing hearing that had been made by the prosecutor, not by the sentencing judge. According to Kahl, the published clarification still falsely attributed the statements to the sentencing judge rather than to the prosecutor. Kahl demanded another clarification.

This time, BNA declined. BNA determined that the first clarification—with its general passive-voice statement, “Petitioner who was said to have believed ... ”— adequately addressed Kahl’s concerns. See Moore Decl. ¶ 10 (BNA App. 267).

Kahl sued BNA in the U.S. District Court. For purposes of the two sets of claims relevant here—the alleged error in the original report and the alleged error in the clarification - the court found that Kahl was a limited-purpose public figure. See Von Kahl v. Bureau of National Affairs, Inc., 984 F.Supp.2d 204, 217-18 (D.D.C. 2013). As a result, in order to prevail on his claims, Kahl had to demonstrate that BNA acted with actual malice when it falsely attributed the challenged statements to the sentencing judge.

After discovery, BNA moved for summary judgment. The District Court denied the motion. Based on the alleged falsity of BNA’s report, the District Court concluded that Kahl produced sufficient evidence of BNA’s actual malice. The District Court recognized, however, that there was substantial ground for difference of opinion on that question. The District Court therefore certified the order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). We review the District Court’s denial of BNA’s summary judgment motion de novo. Jankovic v. International Crisis Group, 822 F.3d 576, 584 (D.C. Cir. 2016).

II

Kahl has sued BNA under D.C. law for defamation. Defamation is the act of making false statements about someone and damaging his or her reputation. See Beeton v. District of Columbia, 779 A.2d 918, 923 (D.C. 2001). Defamation cases often trigger serious First Amendment issues. As the Supreme Court has explained, the First Amendment was intended to ensure “unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” New York Times Co. v. Sullivan, 376 U.S. 254, 269, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (internal quotation mark omitted). Defamation cases can hinder that unfettered interchange.

To encourage and facilitate debate over matters of public concern, the Supreme Court has held that the First Amendment protects, among other things, discussion about public officials and public figures. To that end, the Court requires public officials and public figures bringing defamation claims to meet a high burden of proof to prevail. Specifically, public officials and public figures must demonstrate that the publisher of the statement acted with, “actual malice.” Id. at 280, 84 S.Ct. 710; see also Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 666, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989). In other words, a public-official or public-figure plaintiff must demonstrate that a publisher either actually knew that a published statement was false, or recklessly disregarded whether it might be false. New York Times, 376 U.S. at 280, 84 S.Ct. 710.

Here, we must determine (i) whether Kahl is a public figure for these First Amendment purposes; and (ii) if so, whether he has produced sufficient evidence of actual malice by BNA to overcome summary judgment.

A

We first consider whether Kahl is a public figure.

Public figures are those who have “thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 345, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). Because of the prominent role that those individuals have sought for themselves on certain issues, their “views and actions with respect to public issues and events are often of as much concern to the citizen” as those of public officials. Curtis Publishing Co. v. Butts, 388 U.S. 130, 162, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) (Warren, J., concurring in the judgment). Few people “occupy positions” of such “power and influence that they are deemed public figures for all purposes.” Gertz, 418 U.S. at 345, 94 S.Ct. 2997. More commonly, public figures exercise that degree of power and influence on a limited range of topics or issues and are therefore known as “limited-purpose public figures.” See, e.g., Jankovic v. International Crisis Group, 822 F.3d 576, 584 (D.C. Cir. 2016). The law treats those persons as public figures, but only when it comes to the particular public controversies with which they are associated.

Whether Kahl is a limited-purpose public figure is a “matter of law for the court to decide.” Tavoulareas v. Piro, 817 F.2d 762, 772 (D.C. Cir. 1987) (en banc). This Court applies a three-part test to determine whether a plaintiff is a public figure. “First, the court must identify the relevant controversy and determine whether it is a public controversy. Second, the plaintiff must have played a significant role in that controversy. Third, the defamatory statement must be germane to the plaintiffs participation in the controversy.” Jankovic, 822 F.3d at 585 (internal citations omitted).

Under that three-part test, Kahl is a limited-purpose public figure.

Public Controversy. An issue is a public controversy if it is “being debated publicly” and has “foreseeable and substantial ramifications for nonparticipants.” Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1297 (D.C. Cir. 1980). In determining whether there is a public controversy, a court examines whether “the press was covering the debate, reporting what people were saying and uncovering facts and theories to help the public formulate some judgment.” Id.

In this case, there was public controversy concerning the 1983 shootout, as well as about the underlying issues of taxation and federal government power. The press extensively covered the shootout and all stages of Kahl’s trial. The press coverage extended beyond the trial itself to include discussion of Kahl’s and his father’s association with anti-tax and anti-government movements, as well as explorations and discussions of the political and religious ideologies underlying those movements. See, e.g., Joan Hanauer, Review: In the Line of Duty, United Press International, May 10, 1991 (review of TV movie on Kahl’s father’s political views and the shootout) (BNA App. 53-55); The Posse Comitatus: What Is It?, U.S. News & World Report, Aug. 8, 1983 (BNA App. 60-61); Wayne King, Link Seen Among Heavily Armed Rightist Groups, N.Y. Times, June 11, 1983 (BNA App. 91-96). The public discussion of these issues has continued. See, e.g., New Evidence in 1983 Kahl Case: Recently Discovered Medical Records Prove Officer Lied; Was Shot by Another Officer—Not Defendant, Idaho Observer, Feb. 2006 (BNA App. 107-08); Victor Thorn, Yorie Kahl’s Fight for Freedom, AmeriganFreePress.Net, Jan. 17, 2010 (BNA App. 109-13). This case involves a public controversy.

Role in Controversy. Limited-purpose public figures have “thrust themselves to the forefront” of a public controversy “in order to influence the resolution of the issues involved.” Gertz, 418 U.S. at 345, 94 S.Ct. 2997. To resolve that question, this Court considers “the plaintiffs past conduct, the extent of press coverage, and the public reaction to his conduct or statements.” Lohrenz v. Donnelly, 350 F.3d 1272, 1279 (D.C. Cir. 2003).

Kahl assumed a public role in the controversy when he used his access to the press to promote his cause. For example, he gave extensive interviews for the 1993 documentary, Death and Taxes, where he tied his participation in the shootout (and lack of remorse for his actions) to his “political and religious ideology.” BNA App. 160; see also id. at 103-04 (Amazon.com page for Death and Taxes). In 2004, moreover, Kahl published a book about his case and its relationship to the anti-government and anti-tax movement. See id. at 127-28. He also maintained a personal website where he criticized his conviction and promoted his political views. On that website, he described his case as one of “terrorism and murder committed by federal agents.” Id. at 160. He further described his trial as “an attack upon this nation and our law by the ‘cultural communists’ who found themselves desperate to extinguish kindled feelings of awareness.” Id. Various media outlets continue to highlight and plead Kahl’s case to the public. See, e.g., New Evidence in 1983 Kahl Case: Recently Discovered Medical Records Prove Officer Lied; Was Shot by Another Officer—Not Defendant, Idaho Observer, Feb. 2006 (BNA App. 107-08); see also Victor Thom, Yorie Kahl’s Fight for Freedom, AmericanFreePress.Net, Jan. 17, 2010 (BNA App. 109-13).

In short, Kahl has thrust himself to the forefront of the controversy and has worked to maintain his place in the spotlight.

Germaneness. “The purpose of the germaneness inquiry is to ensure that the allegedly defamatory statement— whether true or not—is related to the plaintiffs role in the relevant public controversy. This ensures that publishers cannot use an individual’s prominence in one area of public life to justify publishing negligent falsehoods about an unrelated aspect of the plaintiffs life.” Jankovic, 822 F.3d at 589. BNA’s report relates to Kahl’s role in the controversy. The report covers Kahl’s conviction for his role in the shootout and his petition to have his sentence vacated. It highlights Kahl’s ideology. And it cites Kahl’s engagement with the press.

In sum, Kahl’s active role in the controversy concerning the shootout and in the debate over taxes and the federal government means that he is a limited-purpose public figure in this case.

B

We next consider whether Kahl produced sufficient evidence of BNA’s actual malice to overcome summary judgment.

As relevant here, Kahl asserts two categories of defamation claims: one related to BNA’s original report and one related to BNA’s clarification. As a limited-purpose public figure, Kahl must establish that BNA published the allegedly defamatory statements with actual malice. New York Times, 376 U.S. at 279-80, 84 S.Ct. 710. A statement is made with actual malice if the statement is made with “knowledge that it was false or with reckless disregard of whether it was false or not.” Id. at 280, 84 S.Ct. 710. Actual malice may be inferred through circumstantial evidence, including “the defendant’s own actions or statements, the dubious nature of his sources, [or] the inherent improbability of the story.” Liberty Lobby, Inc. v. Dow Jones & Co., Inc., 838 F.2d 1287, 1293 (D.C. Cir. 1988). Whatever proof is offered, that proof must show that “the defendant in fact entertained serious doubts as to the truth of his publication.” St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968) (emphasis added).

The Supreme Court and this Court have emphasized that a public-figure plaintiff faces a “daunting” summary judgment standard. Jankovic, 822 F.3d at 590; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The standard is “significantly more onerous than the usual preponderance of the evidence standard.” Tavoulareas, 817 F.2d at 776. To survive a motion for summary judgment, a plaintiff who is a public figure must present “clear and convincing evidence” of actual malice. Anderson, 477 U.S. at 256, 106 S.Ct. 2505. That heightened summary judgment standard helps “prevent persons from being discouraged in the full and free exercise of their First Amendment rights.” Washington Post Co. v. Keogh, 365 F.2d 965, 968 (D.C. Cir. 1966). Summary proceedings “are essential in the First Amendment area because if a suit entails ‘long and expensive litigation,’ then the protective purpose of the First Amendment is thwarted even if the defendant ultimately prevails.” Farah v. Esquire Magazine, 736 F.3d 528, 534 (D.C. Cir. 2013) (quoting Keogh, 365 F.2d at 968).

Kahl argues that BNA’s report and clarification are false because they attribute certain sentencing statements to the sentencing judge, rather than to the prosecutor. But falsity alone does not equate to actual malice. And Kahl has offered insufficient evidence, direct or circumstantial, that any BNA employees had actual malice—that is, that any BNA employee actually knew that the prosecutor made those statements or recklessly disregarded whether the statements were made by the prosecutor rather than by the judge.

To begin with, the BNA author and her supervisor both stated that they believed that the initial BNA report was true when it identified the sentencing judge as the author of those statements. And the supervisor who prepared the clarification stated that he believed that the clarification was true. Of course, actual malice “rarely is admitted.” Dalbec v. Gentleman’s Companion, Inc., 828 F.2d 921, 927 (2d Cir. 1987). Kahl therefore advances two arguments to support an inference of actual malice.

First, Kahl says that he presented sufficient evidence that BNA’s initial report was made with actual malice. We disagree.

The BNA report includes a summary of the sentencing judge’s “ruling.” The BNA report indicates that the sentencing judge stated that Kahl lacked contrition and believed the murders were justified. Of course, we now know that it was the prosecutor, not the judge, who actually made those statements at sentencing about Kahl’s lack of contrition and belief that the murders were justified. But BNA’s mistake—suggesting that statements were made by the judge rather than the prosecutor—occurred because BNA relied on the excerpted transcript that was attached as an appendix to Kahl’s mandamus petition. The excerpted transcript contains excerpts from the sentencing hearing. The only name on the excerpted transcript is that of the sentencing judge. The only speaker identified in the transcript is the judge. And the transcript included the excerpts of the judge announcing the sentence. The excerpted transcript does not contain any reference to the prosecutor speaking. So a reasonable reader of the excerpted transcript would have thought it was the sentencing judge speaking throughout. It was therefore not unreasonable, much less evidence of actual malice, for BNA to read the transcript that way and report it in that fashion.

Kahl says, however, that actual malice can be inferred because one sentence on page 5 of his 28-page mandamus petition suggested that some statements in the excerpted transcript were made by the prosecutor. According to Kahl, that one sentence should have alerted BNA that the prosecutor was also the speaker with regard to the statements at issue in this case. But the one sentence in the mandamus petition does not indicate that the statements at issue in this case were made by the prosecutor, rather than the sentencing judge. On the contrary, a reasonable reader who read the petition and the appendix still would have thought it was the judge who made the statements at issue in this case. And it certainly was not actual malice for BNA to read the transcript that way. At most, Kahl has demonstrated that BNA, upon a more careful reading of the appendix in conjunction with the petition, could have connected some dots and suspected that the prosecutor made the statements at issue in this case. But an “honest misinterpretation does not amount to actual malice even if the publisher was negligent in failing to read the document carefully.” Jankovic, 822 F.3d at 594; see also Time, Inc. v. Pape, 401 U.S. 279, 290, 292, 91 S.Ct. 633, 28 L.Ed.2d 45 (1971); New York Times, 376 U.S. at 286, 288, 84 S.Ct. 710. In short, Kahl has provided insufficient evidence that BNA acted with actual malice in publishing its initial report.

Second, in the wake of Kahl’s letter complaining about the initial report, BNA published a clarification. The clarification still summarized the “ruling below” and still recounted the sentencing judge saying that Kahl believed the murders were justified. Kahl argues that the clarification should have attributed to the prosecutor the statements that Kahl believed the murders were justified. But Kahl’s letter to BNA did not say that it was the prosecutor speaking. Kahl’s letter merely said that it was not Kahl speaking. After receiving the letter, BNA again reviewed the excerpted transcript and again reasonably concluded that the excerpted transcript quoted the senten’cing judge. Under those circumstances, it was not actual malice for BNA to continue to attribute the statements to the sentencing judge. See Lohrenz, 350 F.3d at 1284 (publishers are expected to “act reasonably in dispelling” doubts about the accuracy of their publication that might arise during the publishing process). In short, Kahl has provided insufficient evidence that BNA acted with actual malice in publishing the clarification.

Let’s take a step back. The source of the problem in this case was Kahl’s poorly put-together excerpted transcript that was attached to his mandamus petition. The excerpted transcript included comments of the prosecutor and sentencing judge at the sentencing hearing, but it appeared to be only the sentencing judge who was speaking throughout the excerpted transcript. Based on the excerpted transcript, it was therefore entirely reasonable for BNA to think it was the sentencing judge who was speaking throughout. And it certainly was far from actual malice for BNA to report that the sentencing judge made the statements in question. Moreover, the initial letter from Kahl’s attorney did not correct the misimpression created by the excerpted transcript. So it was far from actual malice for BNA’s clarification to continue to say that the sentencing judge made the statements in question. Also, given that BNA reasonably relied on the excerpted transcript prepared by Kahl, it was not reckless for BNA to fail to obtain the full transcript of the 1983 sentencing hearing (assuming it was actually available).

It is true that after BNA published the clarification, Kahl sent yet another letter to BNÁ that finally said that it was the prosecutor who made the statements at the sentencing hearing. At that point, BNA did not publish a retraction. But we know of no authority that would require a retraction. See McFarlane v. Sheridan Square Press, Inc., 91 F.3d 1501, 1515 (D.C. Cir. 1996). It is often said that a failure to retract “may support actual malice, but it does not necessarily prove actual malice, because it does not prove a wrongful state of knowledge at the time of initial publication.” 1 Sack On Defamation § 5:5.2, at 5-113 (4th ed. 2016) (internal quotation marks omitted). The actual malice inquiry focuses on the defendant’s state of mind at the time of publication. Here, therefore, the question is whether BNA acted with actual malice when the initial report and clarification attributed the statements to the sentencing judge. Given the way the excerpted transcript appeared in the appendix to the mandamus petition, given that Kahl’s first letter did not reference the prosecutor, given that BNA acted reasonably in reviewing its report and the excerpted transcript after receiving Kahl’s first letter, and given that BNA acted reasonably in publishing the clarification, the answer is no.

We reverse the order of the District Court denying summary judgment and remand with directions that the District Court grant summary judgment to BNA on these defamation claims.

So ordered.

      . The District Court concluded that Kahl is a limited-purpose public figure,'but did so in an earlier ruling, not in the order certified for interlocutory review. We still have jurisdiction over the public-figure question, however, because the question of whether Kahl is a limited-purpose public figure is "logically interwoven” with the actual malice question. United States v. Phillip Morris USA, Inc., 396 F.3d 1190, 1196 (D.C. Cir. 2005).

      . In an earlier order in this case, the District Court also dismissed a separate libel per se claim asserted by Kahl. But as BNA notes, that District Court order was not certified for interlocutory review and is not logically interwoven with the issue that was certified for interlocutory review. We therefore lack jurisdiction to consider the libel per se issue. See 28 U.S.C. § 1292(b).