United States of America v. Roberto Adams

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 16, 2024 Decided June 13, 2025
No. 24-3005
UNITED S TATES OF A MERICA,
APPELLANT
v.
R OBERTO ADAMS ,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:21-cr-00625-1)
Mark Hobel, Assistant U.S. Attorney, argued the cause for
appellant. With him on the briefs were Matthew M. Graves,
U.S. Attorney at the time the briefs were filed, and Chrisellen
R. Kolb and Nicholas P. Coleman, Assistant U.S. Attorneys.
A. J. Kramer, Federal Public Defender, argued the cause
and filed the brief for appellee.
Before: M ILLETT and C HILDS , Circuit Judges, and
GINSBURG , Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge M ILLETT.

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M ILLETT, Circuit Judge: Roberto Adams was convicted
of one count of wire fraud and one count of money laundering
in connection with the misuse of a small-business loan he
received from the government under the Coronavirus Aid,
Relief, and Economic Security Act’s Paycheck Protection
Program. Because Adams did not testify at trial, his counsel
requested that the court instruct the jury not to draw any
adverse inference from Adams’ decision not to testify. The
district court agreed to give such an instruction, but then
inadvertently omitted it when instructing the jury. Adams’
counsel failed to object until roughly 30 minutes after the jury’s
verdict, at which point counsel also moved for a new trial. The
district court granted Adams’ motion for a new trial, and the
government appealed. We affirm.
I
A
Congress enacted the Coronavirus Aid, Relief, and
Economic Security Act to help address the severe economic
consequences caused by the pandemic. Coronavirus Aid,
Relief, and Economic Security Act, Pub. L. 116-136, 134 Stat.
281 (2020) (codified at 15 U.S.C. § 636). One component of
the Act was the Paycheck Protection Program (“Paycheck
Program”). See 15 U.S.C. § 636(a)(36). The Paycheck
Program provided loans administered by the Small Business
Administration that were “intended to provide economic relief
to small businesses nationwide adversely impacted” by the
pandemic. Paycheck Protection Program, 85 Fed. Reg. 20,811,
20,811 (April 15, 2020) (to be codified at 13 C.F.R. parts 120
& 121). To be eligible for a Paycheck Program loan, a business
had to (i) have been “in operation on February 15, 2020,” and
(ii) either have “employees for whom [it] paid salaries and
payroll taxes or paid independent contractors,” or be “an

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individual who operate[d] under a sole proprietorship or as an
independent contractor or eligible self-employed individual[.]”
Id. at 20,812. The loans were guaranteed by the Small Business
Administration, and applicants could later apply for loan
forgiveness. 15 U.S.C. §§ 636(a)(2)(F), 636m(b).
Applicants could apply for a loan by submitting an online
application form directly to an authorized lender or a lender
service provider, which would process the loan application on
behalf of the Administration. 15 U.S.C. § 636(a)(36)(F)(ii)(I);
Paycheck Protection Program, 85 Fed. Reg. at 20,814.
Bluevine was one such lender service provider. See generally
COVID-19 SBA PPP Loan Forgiveness 101, B LUEVINE,
https://www.bluevine.com/blog/covid-sba-ppp-loan-
forgiveness-101 (last visited June 3, 2025).
The loan application process relied heavily on self-
certifications by the applicants to determine eligibility. The
applicant had to certify, among other things, (i) “that the
uncertainty of current economic conditions makes necessary
the loan request to support the ongoing operations of
the eligible recipient,” and (ii) “that funds will be used to retain
workers and maintain payroll or make mortgage payments,
lease payments, and utility payments[.]” 15 U.S.C.
§ 636(a)(36)(G)(i)(I)–(II); Paycheck Protection Program, 85
Fed. Reg. at 20,814. The applicant also had to certify that (i)
the applicant’s business “was in operation on February 15,
2020 and had employees for whom it paid salaries and payroll
taxes or paid independent contractors”; (ii) the information in
the application and all supporting documents was “true and
accurate in all material respects”; (iii) the applicant
“underst[ood] that knowingly making a false statement to
obtain a guaranteed loan from [the Small Business
Administration] is punishable under the law”; and (iv) the tax
documents submitted to support the application were “identical

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to those submitted to the Internal Revenue Service.” Paycheck
Protection Program, 85 Fed. Reg. at 20,814–20,815.
An applicant could obtain up to two loans under the
Paycheck Program. 15 U.S.C. § 636(a)(37). To obtain the
second loan, an applicant had to certify that it had used the full
amount of the first Paycheck Program loan “only for eligible
expenses.” Paycheck Protection Program Second Draw Loans,
86 Fed. Reg. 3,712, 3,721 (Jan. 14, 2021) (to be codified at 13
C.F.R. parts 120 & 121). The applicant also had to certify that
it had suffered more than a 25% reduction in gross receipts for
its business as compared to the same time period in 2019 (that
is, prior to the pandemic). Id.
B
In June 2020, Roberto Adams was a police officer with the
District of Columbia Metropolitan Police Department. After
the pandemic started, Adams incorporated a cleaning business
named SuperKlean LLC. The evidence at trial showed that
SuperKlean had no employee expenses or income between
December 22, 2018, and February 2, 2021. See App. 678–679.
Jacoby Taylor was a police officer and Adams’ partner, as
well as his close friend. Taylor knew that Adams was starting
a business and connected Adams to Gerrika Bunche, a
businesswoman based in North Carolina. Bunche had created
a business obtaining Paycheck Program loans in exchange for
commissions.
On July 31, 2020, while Adams was working with Taylor,
Bunche sent Adams an email soliciting his business. Bunche’s
email contained a section on “main points” about the Paycheck
Program that omitted important information regarding loan
eligibility, including that an applicant’s business had to have

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been in existence prior to February 15, 2020, and to have
payroll expenses. App. 812-813. Bunche also did not explain
the permitted uses for the loan money.
In her email, Bunche requested that Adams provide
personally identifying information, such as his social security
number, date of birth, email address, and bank account
information. Bunche then created a Bluevine account on
Adams’ behalf and completed and signed all the Paycheck
Program loan application documents using Adams’ name. In
the applications, Bunche identified Adams as self-employed
with an average monthly business payroll of $7,338, and she
requested a loan of $18,345. She also used Adams’ initials to
make all the requisite certifications, including that (i)
SuperKlean was in operation on February 15, 2020; (ii) the
company had employees for whom it paid salaries and payroll
taxes; (iii) the loan would be used to retain workers and
maintain payroll or make other specified payments; and (iv)
Adams understood that if the funds were knowingly used for
unauthorized purposes, he could be held liable. Finally,
Bunche created a Schedule C Form 1040 IRS document
representing that SuperKlean had a gross income of $94,520
and expenditures of $865 on advertising, $14,075 on Adams’
car, and $4,120 on supplies.
The record does not reveal how Bunche obtained the name
and purpose of Adams’ business or the financial figures she
used in completing Adams’ application. There is also no
record evidence that Adams reviewed or approved the final
application prior to Bunche submitting it to the government.
After Bunche filed the application, Bluevine emailed
Adams a PDF copy of his completed application. There is no
evidence in the record that Adams ever downloaded or read the
loan documents after they were submitted.

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Adams’ application was approved on July 31, 2020, and
Adams received the $18,345 loan in his bank account four days
later. By September 2020, Adams had spent the entirety of the
loan on gambling, personal travel, dining, a car loan payment,
and a residential apartment deposit. A government
investigation concluded that none of the expenses were
business related.
On December 30, 2020, Adams texted Bunche asking
whether she could complete a second Paycheck Program loan
application on his behalf. Bunche responded that she could.
Adams responded, “Lol let’s do it[.]” App. 321.
On January 21, 2021, Bunche submitted Adams’ second
application. Again, there is no record evidence that Adams
reviewed or approved the final application prior to Bunche
submitting it to the government. Bunche initialed Adams’
name to make the same certifications as in the first application.
Bunche also certified that Adams spent the proceeds from the
first loan only on permitted expenses. As with the first
application, Bluevine emailed Adams a PDF copy of his
completed application, but there again is no evidence that
Adams ever downloaded or reviewed the loan documents.
Adams received the second loan of $18,345 on January 29,
2021. He spent the entirety of the loan in four days on personal
expenses, including a single transaction of $12,110.91 for rent
and rental arrears.
In April 2021, Adams applied for a position at the Seattle
Police Department. As part of his background check, the
Seattle Police Department discovered that Adams had received
two Paycheck Program loans. The Department requested that
Adams provide the “name and type of business” for which he
was able to obtain the loans and the “purpose for the funds.”

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App. 301–302. Adams responded that he had a janitorial
cleaning business named SuperKlean. He also explained that
“[t]he amount of the loan was $18,345,” and that “[t]he purpose
of the loan was to provide relief and assistance for [his] small
business during the pandemic.” Id.
On July 28, 2021, and August 4, 2021, Adams forwarded
Bunche two emails about loan forgiveness for the first
Paycheck Program loan. Bunche subsequently completed the
loan forgiveness application on Adams’ behalf, and Adams’
loan was forgiven. On August 9, 2021, Adams texted Bunche
asking if she could complete a loan forgiveness application for
the second loan. That same month, Adams was arrested. It is
not clear whether Bunche ever submitted a second application
for loan forgiveness on Adams’ behalf, but Adams’ second
loan was never forgiven.
C
A grand jury indicted Adams on two counts of wire fraud,
in violation of 18 U.S.C. § 1343, and one count of expenditure
money laundering, in violation of 18 U.S.C. § 1957(a).1 The
two wire fraud counts corresponded to each of the two
Paycheck Program loans that Adams received. The
expenditure money laundering count alleged that Adams used
$12,110.91 of the second loan for personal rental expenses.
1 “Expenditure money laundering” occurs when a person
“knowingly engages or attempts to engage in a monetary
transaction” using property derived from a crime and (i) that property
has a value of more than $10,000, and (ii) the criminal activity from
which the property was derived appears on a statutory list of
qualifying crimes (such as the wire fraud at issue here). 18 U.S.C.
§ 1957(a); see id. § 1956(c)(7) (listing the specified crimes); see
also, e.g., United States v. Lee, 232 F.3d 556, 559 (7th Cir. 2000).

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Before trial, the parties submitted a joint pretrial statement
containing proposed jury instructions. At that time, Adams had
not yet decided whether he would testify at trial. Accordingly,
the joint pretrial statement specified that, depending on Adams’
decision, the instructions should include either an instruction
on the defendant as a witness, or an instruction that the jury
should draw no adverse inference from the defendant’s
decision not to testify.
During trial, the district court provided the parties with a
first draft of the jury instructions, which included the two
alternative instructions concerning Adams’ testimonial choice.
Then, four days into trial, Adams’ counsel notified the district
court that Adams had elected not to testify at trial. Later that
day, the court circulated an updated draft of the jury
instructions that inadvertently omitted the instruction that the
jury should draw no adverse inference from the defendant’s
decision not to testify. That same day, the court circulated a
further updated draft of the instructions and then proposed final
jury instructions, both of which continued to omit the no-
adverse-inference instruction. Neither Adams’ counsel nor the
prosecution alerted the district court to the absence of the no-
adverse-inference instruction that they had jointly requested or
objected to its omission.
On the afternoon of the last day of trial, the district court
asked counsel whether they had any corrections to the final
draft of the jury instructions. Both Adams and the government
said that they had no objections. The court then instructed the
jury. Neither defense counsel nor the government objected to
the absence of a no-adverse-inference instruction at any point.
The following day, the jury returned a split verdict
acquitting Adams of the wire fraud charge corresponding to the
first Paycheck Program loan, but convicting him of wire fraud

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as to the second loan and expenditure money laundering for the
use of its funds for personal rental expenses. About thirty
minutes after the court adjourned, defense counsel asked the
court whether the jury instructions had included the no-
adverse-inference instruction. The court responded that they
had not. Defense counsel responded within two minutes stating
that Adams would be filing a motion for a new trial.
During a status conference on August 28, 2023, defense
counsel moved orally for a mistrial. A month later, Adams
filed a written motion for a new trial under Federal Rule of
Criminal Procedure 33 based on the omission of the no-
adverse-inference instruction. The district court then appointed
conflicts counsel, who filed a supplemental Rule 33 motion
alleging ineffective assistance of counsel based on trial
counsel’s failure to timely object to the omission. The
government opposed both motions.
The district court granted Adams’ motion for a new trial.
The court concluded that Adams had shown plain error in the
court’s omission of the requested and promised no-adverse-
inference instruction. The court also found that the error was
prejudicial and that a new trial was in the interests of justice.
In assessing whether there was a reasonable probability that the
error affected the outcome of the case, the court emphasized
that the government’s case was “not overwhelming[.]” App.
365. The government failed to present any direct evidence as
to the “key disputed issue”—Adams’ knowledge and intent—
and relied on the jury drawing inferences from circumstantial
evidence. App. 358; see United States v. Tann, 532 F.3d 868,
872 (D.C. Cir. 2008) (“To prove wire fraud, the Government
must show: (1) the defendant ‘knowingly and willingly entered
into a scheme to defraud’; and (2) ‘an interstate wire
communication was used to further the scheme.’”) (quoting

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United States v. Alston-Graves, 435 F.3d 331, 337 (D.C. Cir.
2006)).
The district court also observed that when, as here, the
defendant is charged with multiple counts of the same type of
conduct, the split verdict shows that the jury likely viewed each
count as a close call. App. 365. Under these circumstances,
the district court concluded “[i]t is reasonably probable” that
Adams’ decision not to testify, coupled with the court’s
omission of the no-adverse-inference instruction, “had the
effect of strengthening the government’s circumstantial
evidence, thereby contributing to his conviction on Counts 2
and 3.” App. 365–366. The court added that “there is a
reasonable probability” that if the court had given the no-
adverse-inference instruction, “the jury would have been less
willing to take the inferential leaps required to convict, and
would have acquitted the defendant on those counts.” App.
366. For those reasons, the court exercised its discretion to
grant Adams’ Rule 33 motion. App. 368.
II
The district court had jurisdiction under 18 U.S.C. § 3231,
and we have jurisdiction under 18 U.S.C. § 3731.
III
The district court’s grant of a new trial in this case was
consistent with the law and reflected a reasonable exercise of
its discretion.
A
This case implicates three rules governing criminal trials.

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Federal Rule of Criminal Procedure 33 governs a
defendant’s motion for a new trial. That Rule provides: “Upon
the defendant’s motion, the court may vacate any judgment and
grant a new trial if the interest of justice so requires.” F ED. R.
C RIM. P. 33(a). We generally review the trial court’s grant of
a new trial under Rule 33 for abuse of discretion. See United
States v. Johnson, 519 F.3d 478, 487 (D.C. Cir. 2008); United
States v. Hall, 324 F.3d 720, 722 (D.C. Cir. 2003). But we
review any question of law embedded in the district court’s
analysis de novo. United States v. Oruche, 484 F.3d 590, 595
(D.C. Cir. 2007) (citing Hall, 324 F.3d at 722).
At the same time, Federal Rule of Criminal Procedure 30
provides that “[a] party who objects to any portion of the [jury]
instructions or to a failure to give a requested instruction must
inform the court of the specific objection and the grounds for
the objection before the jury retires to deliberate.” F ED. R.
C RIM. P. 30(d). Failure to object precludes appellate review of
the belatedly asserted error unless the party demonstrates plain
error under Rule 52(b). Id.
Rule 52(b), in turn, provides that “[a] plain error that
affects substantial rights may be considered even though it was
not brought to the court’s attention.” F ED. R. C RIM. P. 52(b).
So “[w]hen no objection is made” to a jury instruction “before
the jury retires, an instruction is reviewed only for ‘plain error
affecting a substantial right so that a miscarriage of justice
would otherwise result.’” United States v. Dale, 991 F.2d 819,
850–851 (D.C. Cir. 1993) (quoting United States v. Lancaster,
968 F.2d 1250, 1254 (D.C. Cir. 1992)). This includes when the
district court “inadvertently omit[s]” an instruction “that the
parties had agreed to include” and the parties do not timely
object to the district court’s omission. United States v. Bostick,
791 F.3d 127, 144 (D.C. Cir. 2015).

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In short, plain error will be found when (i) the district court
committed an error; (ii) the error was “plain—that is to say,
clear or obvious”; (iii) the error affected the party’s “substantial
rights” in that there is “a reasonable probability that, but for the
error, the outcome of the proceeding would have been
different”; and (iv) “the error seriously affects the fairness,
integrity or public reputation of judicial proceedings.”
Rosales-Mireles v. United States, 585 U.S. 129, 134–135
(2018) (internal citations and quotation marks omitted).
In this case, the district court itself found that it had
committed plain error and that the interests of justice warranted
the grant of a new trial. The government argues that the court
erred in its application of plain-error analysis and in then
ordering a new trial under Rule 33. Gov’t Reply Br. 1, 13–14.
This court has not yet decided whether plain error analysis
applies to the decision to grant a new trial under Rule 33, and
we need not resolve that question today. Whether or not the
district court was required to apply Rule 52’s plain-error
standard in deciding whether to grant a new trial under Rule
33, the district court in this case chose to apply the plain-error
standard. And its decision merits affirmance even under that
most exacting standard of review.
B
The district court appropriately concluded that the failure
to provide the requested no-adverse-inference instruction
qualified as a plain error that warranted the grant of a new trial.
1
The government does not dispute that Adams satisfies the
first two prongs of plain-error review. Gov’t Opening Br. 37

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n.4. Nor could it. Failure to give the no-adverse-inference
instruction was plain legal error. In Carter v. Kentucky, 450
U.S. 288 (1981), the Supreme Court held that a trial judge
“must give a ‘no-adverse-inference’ jury instruction when
requested by a defendant to do so[,]” id. at 300. See also James
v. Kentucky, 466 U.S. 341, 342 (1984) (same); United States v.
Brand, 80 F.3d 560, 567 (1st Cir. 1996) (finding that omission
was a plain error that affected substantial rights under the first
three prongs of plain-error review). Here, Adams and the
government jointly requested that the district court provide a
no-adverse-inference instruction to the jury, and the court
agreed that the instruction was warranted. Accordingly, the
court’s inadvertent omission of the instruction was both clear
and obvious error.
The government argues, however, that the district court’s
omission of the instruction does not satisfy the third or fourth
prongs of plain-error analysis. As to those questions, the
parties disagree as to whether our review should be de novo or
for abuse of discretion. Compare Gov’t Opening Br. 41–42,
with Adams Br. 48. We need not resolve that dispute because,
even under de novo review, the district court properly
concluded that both prongs were satisfied.
2
Under the third prong, the error must have affected the
defendant’s “substantial rights[.]” United States v. Olano, 507
U.S. 725, 734 (1993) (quoting F ED. R. C RIM. P. 52(b)). That
occurs when there is “‘a reasonable probability that, but for the
error, the outcome of the proceeding would have been
different.’” Greer v. United States, 593 U.S. 503, 507–508
(2021) (quoting Rosales-Mireles, 585 U.S. at 134–135). To
establish that the omitted jury instruction affected Adams’
substantial rights, the court had to find that “individual

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prejudice” resulted. United States v. Marcus, 560 U.S. 258,
265 (2010). The district court made that finding and we affirm.
a
As the district court explained, and the government does
not contest, the “key disputed issue” at trial was whether
Adams “knew and intended” for Bunche to submit on his
behalf Paycheck Program loan applications that contained false
information. App. 358. As to that issue, the government relied
“entirely on circumstantial evidence” and inferences therefrom
to establish Adams’ knowledge and intent. App. 365.
Consequently, the government’s case depended critically on
the jury taking a series of inferential steps in an evidentiarily
close case. That left the jury’s decisionmaking process primed
to adding another inference about why Adams did not testify,
and it strengthened the force of the government’s
circumstantial evidence. For those reasons and on this record,
there is a reasonable probability that, but for the error, the
outcome of the proceeding would have been different.
We start by reviewing the evidence presented at trial. The
government did not have any direct evidence that Adams
provided Bunche with the false information that she used to
complete his first or second loan applications. There was
evidence that Adams supplied Bunche with some of the
information needed to fill out the applications. Adams
provided Bunche with his name, social security number, date
of birth, address, telephone number, email address, citizenship
status, and bank account information. App. 811–812, 819–820.
But none of that information was untrue.
There are no emails or text messages showing that Adams
provided Bunche additional information, and the phone records
reflect that Adams and Bunche did not even have their first

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phone call until after Bunche submitted the first application,
which already included the false average monthly payroll
figure and other false information required to obtain a loan.
App. 1098.2
As a result, to find that Adams knowingly and
intentionally falsified the all-important facts that Bunche
reported—that is, that SuperKlean had an average monthly
payroll of $7,338, a gross income of $94,520, and expenditures
of $865 on advertising, $14,075 on Adams’ car, and $4,120 on
supplies—the jury had to rely on circumstantial evidence and
inferences from it. App. 988–989. Likewise, there is no
evidence that Adams provided Bunche the information she
needed to make the certifications on both applications. In
particular, there is no evidence of Adams telling Bunche that
(i) SuperKlean was in operation on February 15, 2020, (ii)
SuperKlean had employees for whom it paid salaries and
payroll taxes, or (iii) the uncertainty of pandemic economic
conditions made the loan necessary to support SuperKlean’s
ongoing operations.
Trying to address that evidentiary gap, the government
asserted at trial that Adams and Bunche “likely had other
2 None of this is to suggest that direct evidence is necessarily
more probative than circumstantial evidence. 1 McCormick on
Evidence § 185.3 (Robert P. Mosteller, et al. eds., 9th ed. 2020);
cf. Holland v. United States, 348 U.S. 121, 139–140
(1954) (rejecting the need for an instruction “that where the
Government’s evidence is circumstantial it must be such as to
exclude every reasonable hypothesis other than that of guilt” because
“[c]ircumstantial evidence in this respect is intrinsically no different
from testimonial evidence”). The point is only that the government’s
heavily circumstantial case left more pieces for the jury to fit together
with inferential glue, which made the risk of an additional inference
about Adams’ silence more appreciable in such a close case.

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conversations” for which the government lacked evidence.
App. 1566. The government pointed out that Bunche had the
correct name of Adams’ business, “SuperKlean,” and its
claimed purpose of providing janitorial services. The
government reasoned that Bunche “would have had no other
way” to know this information other than from Adams himself.
App. 1566. And the government argued that “FaceTime was
one way” Adams “could have conveyed this additional
personal information” to Bunche, records of which the
government had not been able to capture. App. 1567.
To buy the government’s theory of the case, the jury
would have had first to infer that Adams and Bunche
exchanged Facetime calls despite the absence of any
evidentiary record of them. App. 804–805. Then the jury
would have to infer that, in providing Bunche truthful
information, Adams also provided false information at the
same time. In addition, the jury would have to reject Adams’
arguments that Taylor, who had a longstanding relationship
with Bunche and knew of Adams’ business, provided the name
and purpose of Adams’ business to Bunche. Or that Bunche
herself fabricated the false numbers. These alternatives are not
so far-fetched. One of those alternatives seemingly led the jury
to acquit Adams of fraud relating to his first loan application,
which included the exact same false information.
The evidentiary gaps in the government’s case did not stop
there. There was no evidence that Adams reviewed the false
information or false certifications contained in either the first
or second loan application that Bunche composed. While
Adams received the completed loan documents as PDF email
attachments from Bluevine, the FBI did not find downloaded
copies of the loan application documents on any of the
electronic devices seized from Adams, and the FBI had no

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evidence that Adams had viewed any of the documents in his
email. App. 1138–1139, 1145.
The government also failed to present evidence that
Adams was aware of the Paycheck Program’s requirements,
such as the need to have an ongoing business with actual
employees who would benefit from the payments. In her
emails to Adams, Bunche never advised Adams of the criteria
for obtaining a loan, App. 1148–1150, and there is no evidence
that Adams ever visited the loan application website himself,
App. 1104.
The government points out that Adams affirmatively
reached out to Bunche to submit his second application. App.
897. True. But nothing in their exchanges speaks to Adams’
knowledge of the legal preconditions for obtaining that second
loan or indicates Adams’ intent that Bunche submit fraudulent
information to the government on his behalf. The jury would
have had to make those inferences.
To be sure, the government showed that Adams told the
Seattle Police Department “the purpose of the loan was to
provide relief and assistance for [his] small business during the
pandemic[,]” reflecting that Adams understood at least that
portion of the purpose of the Paycheck Program loan. App.
301. But there is no dispute that Adams had a small business
during the pandemic; it just was not up and running. Anyhow,
Adams made that statement more than four months after
Bunche submitted the second loan application. App. 301. So
the jury would still have had to infer that Adams at the time the
applications were submitted understood the terms and purpose
of the Paycheck Program loan that pertain not just to having a
business, but also to the age of the business, having employees,
and using the funds to keep them working. The record lacked
any evidence of Adams’ knowledge of the aspects of the

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Program as to which his applications were false. The jury had
to infer all those critical facts.
In short, to establish Adams’ knowledge and intent in this
case, the government asked the jury to make inference after
inference at every turn—something that the jury declined to do
as to the fraud count for the first Paycheck Program loan. Of
course, juries can and routinely do make inferences from
evidence. But the circumstantial and inferential character of all
of the most critical evidence in this case supports the district
court’s conclusion that the case against Adams “was not
overwhelming.” App. 365. Under all those circumstances,
there is a reasonable probability that the district court’s failure
to instruct the jury not to draw any adverse inference from
Adams’ decision not to testify tipped the inferential scales
against acquittal on the remaining two counts.
b
In addition, the district court’s front-row view of the trial
and evidence, as well as its informed perspective on the
meaning of the split verdict, carry important weight in
analyzing the prejudicial impact of an error. Even under de
novo review, we can consider the district court’s expert vantage
point in reviewing the import of the evidence presented, the
significance of a split verdict, and the probable effect of the
jury instruction error on the outcome of the case. See, e.g.,
Ornelas v. United States, 517 U.S. 690, 699 (1996) (“[A]s a
general matter[,] determinations of reasonable suspicion and
probable cause should be reviewed de novo on appeal. Having
said this, we hasten to point out that a reviewing court should
take care both to review findings of historical fact only for clear
error and to give due weight to inferences drawn from those
facts by [district court] judges[.]”); United States v. Kayode,
254 F.3d 204, 209 (D.C. Cir. 2001) (same); Ball v. Trusler, 182

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F.3d 913, 1999 WL 422962, at *3 (5th Cir. 1999) (unpublished)
(according deference “to the trial judge, who was present and
heard the evidence,” on plain-error review).
Here, the district court—that had a front row seat to the
trial and presentation of evidence—viewed the split verdict as
“suggest[ing] that the jury viewed each of the substantive
counts as a close call.” United States v. Duldulao, 87 F.4th
1239, 1261 (11th Cir. 2023); see App. 365. The jury’s line-
drawing between the first and second Paycheck Program loans
rested on a slender evidentiary record. The government’s
inferential evidence was essentially the same as to both loans.
Although Adams and Bunche began having phone calls after
the first loan application was submitted, the false information
she used in the second loan was the same as in the first. Like
the first application, there was no evidence that Adams
reviewed or approved of the information in the second
application. The only differences were that Adams had already
received a completed copy of his first Paycheck Program loan
application, albeit with no evidence Adams had looked at it,
Adams had already spent the proceeds of the first loan on
personal expenses, and Adams asked Bunche to submit the
second application.
Even then, the government’s case hinged on the jury
inferring from the evidence that Adams had the requisite
knowledge about the limitations on how the funds could be
spent and intent to defraud the Program. That all suggests that
the line between conviction and acquittal turned on thin
inferences, the type of evidence for which a defendant’s
unexplained silence might well have made a difference. As the
district court observed, the jury may have wanted to hear from
Adams about how he did not know he was committing fraud
by the time of the second application, after he had received the
completed documents from the first application and spent the

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proceeds on personal expenses. The jury may have also wanted
to hear from Adams about why he told the Seattle Police
Department that the purpose of the loans was for his small
business. In deciding Adams’ guilt on the second fraud count
and the money laundering count, the jury could have held
against Adams his decision not to provide these answers.
The government argues that we should view the split
verdict as “refut[ing] any inference that the jury gave undue
weight to matters that were not in evidence” such as Adams’
decision not to testify. Gov’t Opening Br. 46 (quoting United
States v. Small, 74 F.3d 1276, 1284 (D.C. Cir. 1996)). Under
the facts of this case, the split verdict gave no such indication.
In Small, the split verdict indicated that a prosecutor’s
prejudicial statements did not infect the defendant’s conviction
because the defendant was acquitted of the charge for which
the prosecutor’s statements might have been key to linking the
defendant to the crime, but then convicted of a charge for which
there was “independent overwhelming evidence.” Small, 74
F.3d at 1284.
By contrast, in this case, (i) all counts largely relied on the
same evidence, (ii) the evidence was close, not
“overwhelming,” on all counts, and (iii) the matter “not in
evidence”—Adams’ decision not to testify—was relevant to all
counts. Small, 74 F.3d at 1284. Under those circumstances,
we take due account of the district court’s judgment that the
split verdict confirmed the closeness of the case, in which any
change in the evidentiary balance (such as an inference about
testimonial silence) mattered.
The Supreme Court has said that “a defendant must pay no
court-imposed price for the exercise of his constitutional
privilege not to testify.” Carter, 450 U.S. at 301 (emphasis
added). On the record in this case, as the district court

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explained, the split verdict provides no assurance that Adams’
testimonial absence played no outcome-influencing role in the
jury’s deliberations.
c
Finally, in evaluating prejudice from an instructional error,
“[w]e consider [the] jury instructions as a whole.” United
States v. Hite, 769 F.3d 1154, 1166 (D.C. Cir. 2014) (first citing
United States v. Norris, 873 F.2d 1519, 1524–1525 (D.C. Cir.
1989); and then United States v. Martin, 475 F.2d 943, 947
(D.C. Cir. 1973)). In this case, the jury instructions as a whole
did nothing to mitigate the absence of the no-adverse-inference
instruction.
To start, no part of the instructions addressed, directly or
indirectly, Adams’ right not to testify or the prohibition on the
jury attaching any relevance to the absence of his testimony.
The government emphasizes the instruction that “[t]he law
does not require a defendant to prove his innocence or to
produce any evidence at all.” App. 1537. But instructing the
jury that Adams did not have to produce any evidence at all is
of no help in this case, where Adams chose to put on a defense
and the jury was left to draw inferences as to why Adams’
testimony was not part of the defense’s case.
Next, the government points to the district court’s
instruction that the jury “may consider only the evidence
properly admitted in this trial,” which “was the sworn
testimony of the witnesses and the exhibits that were admitted
into evidence.” App. 1539–1540. That instruction is of little
help here where the jury had to go beyond the evidence itself
and to draw inferences from the evidence, and so may have
been primed also to make an inference about Adams’
testimonial silence.

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Finally, the government argues that including the
instruction could have harmed Adams by calling attention to
his decision not to testify. Gov’t Opening Br. 49. That tactical
judgment was Adams’ to make and his alone. He chose to
request such an instruction. And the government seconded the
request. So the question at this stage is not whether an absence
of prejudice could be hypothesized, as the government posits.
It is only whether the record in this case demonstrates a
reasonable probability that the instruction’s omission changed
the outcome of the jury’s deliberations. The district court’s
finding of prejudice is fully supported by the record and
consistent with precedent.
* * * * *
For all those reasons, the district court properly concluded
on this record that the third plain-error prong was met.
3
Having appropriately found that the first three prongs of
plain-error analysis were met, the district court still had to
determine whether the error “‘seriously affect[ed] the fairness,
integrity or public reputation of judicial proceedings.’” Olano,
507 U.S. at 736 (quoting United States v. Atkinson, 297 U.S.
157, 160 (1936)). That is a “case-specific and fact-intensive”
inquiry that the district court concluded was met. Puckett v.
United States, 556 U.S. 129, 142 (2009). We agree.
The district court fairly considered the evidentiary record
and the circumstances of this case in deciding that its
inadvertent omission of the no-adverse-inference instruction
affected the fairness and integrity of the proceedings. Here (i)
the parties jointly requested the instruction in their joint pretrial

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statement, and defense counsel repeated the request; (ii) the
district court repeatedly confirmed that it would include the
instruction; (iii) the instruction was, by the district court’s own
admission, inadvertently omitted on the last day of trial; and
(iv) the evidentiary case was close and the convictions relied
heavily on inferences by the jury. Given that record, the district
court appropriately concluded that the error seriously affected
the fairness, integrity, and public reputation of the case.
The error is also “serious[,]” Olano, 507 U.S. at 736
(internal citation omitted), given that a court’s failure to “give
a ‘no-adverse-inference’ jury instruction when requested by the
defendant to do so” amounts to constitutional error, Carter, 450
U.S. at 300. Omission of the instruction was especially unfair
to Adams who had made the decision not to testify only after
the district court had promised repeatedly to give the no-
adverse-inference instruction. App. 341–342.
In addition, the district court’s well-substantiated finding
that omission of the instruction was prejudicial because there
was a reasonable probability that it caused the adverse verdicts
directly implicates the integrity and reputation of the trial. By
way of comparison, in cases involving sentencing errors, the
Supreme Court has suggested that a “reasonable citizen” would
“bear a rightly diminished view of the judicial process and its
integrity if courts refused to correct obvious errors of their own
devise that threaten to require individuals to linger longer in
federal prison than the law demands[.]” Rosales-Mireles, 585
U.S. at 141 (citation omitted). So too here.
The government urges us to weigh as a “countervailing
factor[]” Adams’ failure to timely object to the error despite
being given ample opportunity. See Puckett, 556 U.S. at 143.
While perhaps a relevant consideration, that factor alone does
not render the district court’s judgment erroneous. After all,

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every plain-error analysis starts with a party’s failure to object.
To the extent the government is worried about gamesmanship
in counsel’s failure to object until after the verdict, that concern
is a wash in this case where the government too failed to object
to the omission of an instruction it endorsed, and that objection
would have forestalled any gamesmanship. App. 42–43.
Either way, the district court found that, in the context of the
entire case and evidentiary record, the error affected the
fairness, integrity, and public reputation of the proceeding, and
both parties’ oversight did not change that judgment.
* * * * *
In sum, the district court appropriately determined that
omission of the no-adverse-inference instruction amounted to
plain error that was prejudicial and implicated the fairness,
integrity, and public reputation of the trial. That was a
sufficient basis for granting Adams a new trial on the two
counts of conviction.
Adams separately argues that omission of the no-adverse-
inference instruction constituted a structural error that
automatically required a new trial. Adams Br. 23–39. The
right not to testify undoubtedly is a gravely important
right. But having already determined that the district court
properly found plain error and ordered a new trial, we have no
occasion to address Adams’ structural-error argument. Less is
better when it comes to the resolution of constitutional
questions by the courts. Plaut v. Spendthrift Farm, Inc., 514
U.S. 211, 218 (1995) (citing Ashwander v. Tennessee Valley
Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring)).

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IV
For the foregoing reasons, we affirm the district court’s
order.
So ordered.

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