United States of America v. Brynee Baylor

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 10, 2021 Decided July 12, 2022
No. 19-3075
UNITED STATES OF AMERICA,
APPELLEE
v.
BRYNEE BAYLOR,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:16-cr-00180-1)
Shawn Sukumar argued the cause for appellant. On the
briefs was David Benowitz.
Mark S. Determan, Attorney, U.S. Department of Justice,
argued the cause and filed the brief for appellee. Alexander P.
Robbins, Assistant U.S. Attorney, entered an appearance.
Before: SRINIVASAN, Chief Judge, PILLARD, Circuit
Judge, and RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Chief Judge SRINIVASAN.
SRINIVASAN, Chief Judge: Appellant Brynee Baylor was
convicted of conspiracy to commit securities fraud, securities

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fraud, and first-degree fraud for her participation in a
fraudulent investment scheme. On appeal, she mounts a single
challenge: the prosecution made improper comments during
its rebuttal closing argument that substantially prejudiced her
and denied her a fair trial. Baylor objected to most of the
prosecution’s statements in the district court, and the court
sustained the objections. We find no reversible error in the
district court’s response to the prosecution’s challenged
statements, and we thus affirm Baylor’s convictions.
I.
Beginning in 2010, Baylor, who was then a licensed
attorney, joined forces with a Pennsylvania man to promote
what they touted as a highly profitable trading program. They
promised investors extraordinary returns in a short timeframe
with false assurances about the venture’s past successes. All
told, they enticed more than a dozen individuals to deposit
more than $2.4 million into Baylor’s attorney trust account
over the course of approximately one year.
Investors, however, never saw their money again. Baylor
repurposed a majority of the deposited funds for her and others’
personal use. She did so notwithstanding her repeated
promises that the funds would remain secured in the trust
account. Baylor continued that pattern—namely, recruiting
investors with false promises and siphoning off their
contributions for unrelated uses often just days after receipt—
long into the scheme’s course, even as she exchanged scores of
communications with unhappy investors attempting
(unsuccessfully) to recoup their money, and even though
investors had been paid nothing at all.
On October 6, 2016, a federal grand jury indicted Baylor
on charges stemming from her participation in the investment

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scheme. Over the course of an eleven-day jury trial, the
prosecution offered testimony from two government agents
and ten former investors tending to show that Baylor
knowingly engaged in a prolonged effort to defraud investors.
Baylor’s defense involved an effort to demonstrate that she
lacked awareness of the fraudulent nature of the enterprise.
She attempted to point the finger at her business partner, whom
she claimed had masterminded the scheme and had duped her
along with the investors. As one component of her defense,
Baylor introduced a joint stipulation of fact concerning
testimony her mother had previously provided in a related civil
proceeding. The stipulation, which defense counsel read to the
jury, stated that Baylor’s mother testified both that she
“decided to invest” in the trading program and that she gave
Baylor a check “expecting her to” deposit $15,000 for purposes
of that investment. Apr. 18, 2019 P.M. Trial Tr. 24:7–22, App.
366. According to Baylor, the fact that her own mother
invested in the scheme served to reinforce Baylor’s lack of a
culpable mental state at the time of the alleged offenses.
Although the vast majority of trial testimony focused on
other issues, the prosecution briefly cross-examined Baylor
about her mother’s purported investment. The prosecution
then suggested during closing argument that Baylor’s mother
in fact had not invested in the scheme at all. Defense counsel
responded in closing arguments that the investment had
occurred.
In the rebuttal closing argument, the prosecution then
made four remarks on which Baylor grounds her challenge in
this appeal: (i) “Now, certainly, [Baylor’s mother] was trying
to help her daughter get out of the trouble with the SEC” when
she testified about the investment and she and Baylor “came up
with” the idea of the investment; (ii) “Maybe [Baylor’s mother]

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wrote [the check] to help [Baylor] make some mortgage
payment”; (iii) “It’s possible [the check] was to pay some other
household expense”; and (iv) The jury “should not credit” the
“self-serving” investment claim, which came “only after”
Baylor faced legal jeopardy. Apr. 25, 2019 Trial Tr. 14:7–
16:17, App. 425–27.
Defense counsel objected to the first three statements
when each was made (but not the fourth). The district court
sustained each of those objections. The court expressly struck
the first statement from the record, observing that it was not “in
evidence.” Id. at 14:13–14, App. 425. And the court stated
that the second and third comments were speculative. The
court sustained the objections and noted its grounds for doing
so in the presence of the jury. Baylor did not ask for any
additional relief, neither seeking a curative instruction nor
moving for a mistrial.
On April 29, 2019, the jury found Baylor guilty of
conspiracy to commit securities fraud, securities fraud, and five
counts of first-degree fraud. She soon filed a motion for a new
trial. Among her arguments, she pointed to the three assertedly
improper statements to which she had objected during the
prosecution’s rebuttal argument.
The district court denied the motion for a new trial. United
States v. Baylor, No. 16-cr-180, 2019 WL 3533529 (D.D.C.
Aug. 2, 2019). With regard to Baylor’s reliance on the
prosecution’s statements, the court reasoned that, although the
statements were arguably improper, they had not misstated the
evidence, inflamed the jury, or featured prominently at closing.
The court added that it had sufficiently mitigated any prejudice
from the statements in the jury’s presence and that the case in
any event was not close. The complained-of comments, the
court determined, thus “could not reasonably have affected the

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jury’s verdict.” Id. at *9 (brackets and citation omitted).
Baylor now appeals.
II.
Baylor raises only one argument in her appeal: that the
prosecution’s statements during its rebuttal closing argument
denied her a fair trial. The threshold question we face is, which
standard of review should govern our resolution of Baylor’s
claim? According to Baylor, we should apply harmless-error
review. If so, the burden would lie with the government to
show that the ostensible error was harmless—i.e., did not
substantially and injuriously affect the jury’s determination of
the verdict. See, e.g., United States v. Johnson, 231 F.3d 43,
47 (D.C. Cir. 2000).
Harmless-error review is inapplicable in the circumstances
of this case. Harmless-error analysis generally applies when a
district court erroneously rejects a defendant’s timely claim of
an error. See, e.g., United States v. Johnson, 519 F.3d 478, 483
(D.C. Cir. 2008). In that situation, the government can prevail
on appeal, notwithstanding the error in the conduct of the trial
proceedings, by demonstrating that the error was harmless.
Here, though, the district court did not erroneously reject
Baylor’s claim of an error. Indeed, the court did not reject any
relevant claim of error at all. Baylor’s claim involves the four
allegedly improper statements made by the prosecution in the
rebuttal closing argument. But Baylor raised no objection in
the district court to the fourth of those statements, so there was
no claim of any error at trial as to that one. And while Baylor
did object to the other three statements, the district court did
not erroneously overrule her objections. Rather, the court
sustained her objections, striking the first statement from the
record and noting for the jury that the other two statements

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were speculative. And Baylor made no argument at trial that
the district court should have granted her additional relief
beyond what it provided her upon sustaining her objections.
When, as here, a defendant “fail[s] to preserve any claim
for relief beyond” what the court provided her, “we review
[her] claim for plain error,” not harmless error. United States v.
Wilkerson, 966 F.3d 828, 840 (D.C. Cir. 2020); see United
States v. Taylor, 514 F.3d 1092, 1095–97, 1099–1100 (10th
Cir. 2008). And under plain-error review, unlike harmless-
error review, the burden rests with the defendant, not the
government. Specifically, Baylor must show that the district
court (i) committed “error,” (ii) that is “clear” or “obvious,”
(iii) that affects her “substantial rights,” and (iv) that “seriously
affect[s] the fairness, integrity or public reputation of judicial
proceedings.” United States v. Olano, 507 U.S. 725, 734–36
(1993) (alteration in original) (citations omitted).
It bears noting that Baylor could have obtained review of
the district court’s handling of the prosecution’s allegedly
improper statements under a more favorable standard than
plain-error review—albeit still a standard under which Baylor
(rather than the government) would bear the burden.
Specifically, if Baylor sought review of the district court’s
denial of her new-trial motion based on the allegedly improper
statements, we would review such a claim under an abuse-of-
discretion standard rather than the plain-error standard. United
States v. Borda, 848 F.3d 1044, 1060 (D.C. Cir. 2017). But
Baylor expressly disclaims any challenge to that ruling, telling
us that she is not “appealing the trial court’s denial of her new
trial motion.” Baylor Reply Br. 2; see also Oral Arg. Tr. 5.
That choice has consequences, for nowhere other than
Baylor’s motion for a new trial did she seek and fail to obtain
relief relating to the prosecution’s statements. And because she

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suffered no adverse ruling besides the court’s new-trial
decision—which she says she is not appealing—we are left to
assess whether the district court’s failure sua sponte to grant a
mistrial or to take some other curative action in response to the
prosecution’s statements amounted to plain error. See
Wilkerson, 966 F.3d at 840–41; Taylor, 514 F.3d at 1095–97,
1099.
Baylor cannot demonstrate plain error. The district court
did not err, much less plainly err, in responding to the
prosecution’s challenged statements. That is, it “is neither
‘clear’ nor ‘obvious’ that the district court should have sua
sponte granted curative action beyond” sustaining defense
counsel’s objections and instructing the jury as it did.
Wilkerson, 966 F.3d at 840–41 (quoting Olano, 507 U.S. at
734). Baylor identifies no authority indicating otherwise.
Indeed, far from obvious error, the court’s response to the
prosecution’s statements was fully proportionate to any
prejudice they may have caused Baylor. In addition to
sustaining the objections, the court stated in the presence of the
jury that one of the assertions was not in evidence and deemed
the other two comments speculative. Before closing
arguments, moreover, the court twice instructed the jury that its
own recollection of the trial evidence controlled and that
“statements and arguments of the lawyers are not evidence.”
Apr. 24, 2019 A.M. Trial Tr. 35:10–37:11; accord Apr. 24,
2019 P.M. Trial Tr. 3:9–13. We generally presume that juries
heed sustained objections and follow instructions to disregard
prejudicial comments, United States v. Wheeler, 753 F.3d 200,
206 (D.C. Cir. 2014), and there is no reason to conclude that
the jury did not do so here. The district court, then, did not
plainly err by not sua sponte declaring a mistrial or taking
additional curative action following the relevant remarks by the
prosecution.

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Lastly, even assuming the district court should have taken
any additional actions, the court’s failure to do so did not affect
Baylor’s substantial rights, given: the relatively innocuous
nature of the prosecution’s four isolated comments on an issue
of comparatively minor focus; the remedial steps the court did
undertake; and the considerable array of compelling evidence
of Baylor’s knowing participation in the fraudulent investment
scheme. See Wilkerson, 966 F.3d at 841; United States v.
McGill, 815 F.3d 846, 921–22 (D.C. Cir. 2016). That evidence,
which spanned many days of testimony, included Baylor’s
repeated, false representations of prior successful transactions,
her false assurances about the intended use of investors’
deposits, and her false communications with investors
concerning the status of their funds. Baylor, 2019 WL
3533529, at *2–3. In the end, as the district court observed,
Baylor’s case “was not close.” Id. at *9.
* * * * *
For the foregoing reasons, we affirm the judgment of the
district court.
So ordered.

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