United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 22, 2013 Decided April 4, 2014

No. 11-3072

UNITED STATES OF AMERICA,

APPELLEE

v.

REGINALD CLARK,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:10-cr-00110-1)

Jessica L. Ellsworth, appointed by the court, argued the 

cause for appellant. On the briefs were Peter S. Spivack and 

Matthew J. Iaconetti, appointed by the court.

Katherine M. Kelly, Assistant U.S. Attorney, argued the 

cause for appellee. With her on the brief were Ronald C. 

Machen, Jr., U.S. Attorney, and Elizabeth Trosman, Assistant 

U.S. Attorney.

Before: ROGERS and TATEL, Circuit Judges, and 

RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge TATEL.
2

Concurring opinion filed by Senior Circuit Judge 

RANDOLPH.

TATEL, Circuit Judge: Challenging his conviction for 

bank and wire fraud, Appellant contends that the district court 

erroneously denied his Batson challenge and wrongly 

admitted certain evidence. Appellant also argues that the 

district court violated the Ex Post Facto Clause by calculating 

his sixty-three-month sentence on the basis of guidelines 

adopted subsequent to his crimes, applied an unwarranted 

aggravating role enhancement, and erred by basing his 

$200,000-plus restitution obligation in part on acquitted 

conduct. For the reasons set forth in this opinion, we reject 

Appellant’s challenges to his conviction, his aggravating role 

enhancement, and his restitution obligation. But because the 

government concedes that the district court’s retroactive 

application of the Sentencing Guidelines violated the Ex Post 

Facto Clause, we vacate Appellant’s sentence and remand for 

resentencing.

I.

From May 2001 through July 2003, Appellant Reginald 

Clark stole thousands of dollars from his employer, Hoya 

Federal Credit Union. Here’s how he did it. While working as 

Hoya’s accountant, Clark manipulated its accounting system 

so that the credit union funded Clark’s withdrawals from his 

Hoya account. According to the indictment, Clark executed 

sixty-four such fraudulent transactions totaling approximately 

$119,280. Clark also arranged two unauthorized wire 

transfers from Hoya’s account: one for $40,000 to an account 

Clark’s cousin and the cousin’s wife owned jointly; the other 

for $60,000 to Clark’s own retirement account. The grand 

jury indicted Clark on four counts of bank fraud, 18 U.S.C. 

§ 1344, two counts of false entry in federal credit institution 

records, id. § 1006, and two counts of wire fraud, id. § 1343. 
3

For conspiring with his cousin and the cousin’s wife to 

execute the $40,000 wire transfer, the grand jury indicted 

Clark on one count of conspiracy to commit bank fraud and 

wire fraud. Id. §§ 1349, 1344, 1343.

During jury selection, the government used five of its six 

allotted peremptory strikes on black jurors: a teacher, a condo 

manager, a software tester, a former employee of another 

credit union, and a man upset about the legal representation 

his cousin had received in an unrelated criminal case. Clark 

responded with a Batson challenge, claiming that the 

government unconstitutionally struck the black jurors on 

account of race. See Batson v. Kentucky, 476 U.S. 79 (1986).

Seeking to determine whether the government allowed nonblack jurors with similar characteristics to serve on the jury, 

the district court asked Clark’s counsel whether he had 

prepared an analysis comparing the seated and struck jurors.

Counsel explained that he had not, and although the court 

granted his request for “a moment” to do so, he never 

followed through. Largely due to the absence of this

comparative analysis, the district court rejected Clark’s

Batson challenge, finding that he failed to produce sufficient 

evidence to demonstrate that the government engaged in 

purposeful discrimination.

At trial, the government presented testimony and 

documentary evidence showing that Clark manipulated 

Hoya’s check payment system, that he made two 

unauthorized wire transfers, and that he used the stolen funds 

to pay for personal expenses. In addition to this direct 

evidence of guilt, the government elicited testimony from 

Hazel Logan, Clark’s supervisor and Hoya’s CEO, explaining 

how she discovered the scheme. Over Clark’s objection, 

Logan testified that while conducting a routine review of 

Clark’s bank account, she noticed that the account reflected a 
4

$5,500 deposit made at a Hoya ATM and that Clark had failed 

to put any money into the ATM to cover the deposit. Logan 

then initiated the audit that unearthed the scheme to defraud 

Hoya.

The jury convicted Clark on all but two counts: the 

conspiracy count, which the government never presented to 

the jury and was later dismissed; and the bank fraud count 

that alleged a single fraudulent automated bill payment. The 

district court sentenced Clark to sixty-three months’ 

imprisonment. In so doing, the court calculated Clark’s 

sentence based on the 2010 Sentencing Guidelines instead of 

the Guidelines in effect at the time of the offense and then 

applied a two-level aggravating role enhancement. See 

U.S.S.G. § 3B1.1(c). Invoking the Mandatory Victims 

Restitution Act of 1996 (MVRA), 18 U.S.C. § 3663A, the 

court also ordered Clark to pay over $219,000 in restitution—

the entire loss alleged in the indictment, including losses 

attributable to the bank fraud count on which Clark was 

acquitted.

On appeal and with appointed counsel’s able assistance, 

Clark now challenges his conviction on the grounds that the 

district court erroneously rejected his Batson challenge and

admitted the ATM evidence, his sentence on the grounds that 

the court violated the Ex Post Facto Clause by using the 2010 

Sentencing Guidelines and erred by applying an aggravating 

role enhancement, and his restitution obligation on the ground 

that it included acquitted conduct. We consider each set of 

issues in turn.

II.

The Constitution bars the government from using 

peremptory challenges to exclude prospective jurors on the 

basis of race. See Batson, 476 U.S. at 89; United States v. 
5

Moore, 651 F.3d 30, 40 (D.C. Cir. 2011). Batson challenges 

proceed in three steps. First, the defendant must establish a 

prima facie case of discrimination. Next, the government must

offer a race-neutral justification for each challenged strike. 

Finally, the court must consider “all of the circumstances that 

bear upon the issue of racial animosity” to determine whether 

the government engaged in purposeful discrimination. Snyder 

v. Louisiana, 552 U.S. 472, 478 (2008). In this case, the 

district court was quite skeptical about several of the 

government’s strikes. But observing that Clark failed to 

present an analysis comparing the struck jurors with the 

seated jurors, the court concluded at Batson’s final step that 

Clark had offered insufficient evidence to find “that the 

government’s . . . strikes were exercised for racial reasons.” 

Trial Tr. 10 (Jan. 18, 2011). We review for clear error. United 

States v. Gooch, 665 F.3d 1318, 1324 (D.C. Cir. 2012).

Clark first argues that the district court clearly erred by 

relying on its own concern about one of the struck jurors—the 

teacher—rather than limiting its analysis to the government’s 

stated rationale, that it feared teachers would be too inclined 

to give defendants second chances. Clark is correct that a

district court may not substitute its own reasons for those 

given by the government, see Miller-El v. Dretke, 545 U.S. 

231, 251–52 (2005), but he is wrong that the court did so in 

this case. Although the district court had its own doubts about 

the teacher’s fitness for jury service and was quite skeptical of 

the government’s claim that teachers favor defendants, the 

court made clear that it based its decision on the government’s

proffered justifications. “I don’t think there is enough here,”

the court explained, “to conclude that the government’s

representations about why the strikes were exercised are not a 

genuine representation of the government’s thinking.” Trial 

Tr. 10 (Jan. 18, 2011) (emphasis added). 
6

As to the other jurors, Clark contends that the district 

court overlooked clear evidence that the government’s 

justifications were pretextual. He maintains that the 

government’s reason for striking the condo manager (she 

knew too little about issues relevant to the case) and its reason 

for striking the software tester (he knew too much) are 

necessarily inconsistent and therefore pretextual. Yet as the 

government points out, the justifications are in fact consistent. 

The government—reasonably in our view—may have wanted 

jurors able to follow the case while at the same time fearing 

jurors who might bring unwanted expertise into their

deliberations. Likewise, the government worried—again 

reasonably—that the former credit union employee would 

bring her personal knowledge about credit union operations 

into the case and that the juror whose cousin had a bad 

defense lawyer could be overly sympathetic to defendants. 

Far from committing clear error, the district court took 

Clark’s Batson challenge seriously and made a reasonable 

decision based on the arguments and facts presented.

For the first time on appeal, Clark now offers the

comparative analysis of struck and seated jurors that the 

district court had inquired about, arguing that this analysis 

provides powerful evidence of the government’s 

discriminatory intent. As Clark concedes, we review this

unpreserved argument for plain error. Gooch, 665 F.3d at 

1331–32. But cf. Miller-El, 545 U.S. at 241 & n.2 (reasoning 

that comparative-analysis-based arguments are theories about 

record evidence rather than new evidence). In the Batson 

context, an error is plain if the government’s discriminatory 

intent is “manifest, patent, or unmistakable.” Gooch, 665 F.3d

at 1332 (internal quotation marks omitted).

According to Clark, comparisons of the condo manager

(whom the government justified striking based on its concern
7

that she lacked sufficient knowledge to follow the accounting

issues in the case) and the software tester (whom the 

government justified striking based on its concern that he 

might use his expertise to second-guess Hoya’s accounting 

software) with several seated non-black jurors sharing these 

characteristics reveal incontrovertible evidence of the 

government’s discriminatory intent. But as the government 

points out, the struck and seated jurors differ in meaningful 

ways. With respect to the condo manager, the government had 

a nondiscriminatory basis for believing that each of the seated 

jurors could better follow the complex accounting issues: 

Juror 1282 “handle[d] some financial[s] at work” and had 

previously served on a jury, Trial Tr. 39 (Jan. 13, 2011); Juror 

1395 was familiar with accounting principles from his work 

as an accounting firm lobbyist, see id. at 51–53; and Juror 

0488 had a Ph.D. in physics, see id. at 48–49. Likewise, with 

respect to the software tester, none of the comparators 

revealed similar levels of advanced software expertise: Juror 

1124 worked on computer hardware, not software, see Trial 

Tr. 87 (Jan. 13, 2011, P.M. Session); Juror 0488 was an 

astronomer, not a software specialist, see Trial Tr. 49 (Jan. 13, 

2011); and Juror 1210, a prosecutor in the Justice 

Department’s intellectual property and computer crimes 

section, worked on intellectual property cases, not computer 

crimes, see id. at 70. Given these differences between struck 

and seated jurors, Clark’s comparative analysis provides no 

“unmistakable” evidence of the government’s discriminatory 

intent. Gooch, 665 F.3d at 1332 (internal quotation marks 

omitted); see also Snyder, 552 U.S. at 483 (cautioning that 

“when alleged similarities were not raised at trial . . . an 

appellate court must be mindful that an exploration of the 

alleged similarities at the time of trial might have shown that 

the jurors in question were not really comparable”). Clark has

thus failed to demonstrate that the district court committed 

clear or plain error in denying his Batson challenge.
8

Clark’s remaining challenge to his conviction fares no 

better. He argues that the district court erred by failing to 

exclude evidence about the $5,500 ATM transaction as 

inadmissible propensity evidence. See Fed. R. Evid. 404(b). 

Overruling Clark’s objection, the district court concluded that 

the evidence fell outside Rule 404(b) because it was intrinsic

to the charged offenses and relevant to “tell the entire story of 

what took place and how this whole thing was uncovered.”

Trial Tr. 232 (Jan. 19, 2011). It is true, as Clark argues, that 

we have rejected a “complete the story” exception to Rule 

404(b) and held that the “inextricably intertwined” exception 

is narrow. United States v. Bowie, 232 F.3d 923, 928–29 

(D.C. Cir. 2000). But in this case, we have no need to 

determine whether the district court erred because any error,

even if one occurred, was harmless. See Kotteakos v. United 

States, 328 U.S. 750, 776 (1946) (holding that 

nonconstitutional errors that have no “substantial and 

injurious effect . . . [on] the jury’s verdict” must be 

disregarded). The government presented overwhelming 

evidence of Clark’s guilt—most notably, documents showing 

his use of the fraudulently obtained funds to pay for his own 

expenses—and the ATM evidence added little to its case.

III.

Clark argues that the district court erred by applying a 

two-level enhancement for his aggravating role as “an 

organizer, leader, manager, or supervisor of criminal activity 

involving fewer than five participants.” U.S.S.G. § 3B1.1(c). 

In the district court, Clark objected to the enhancement on the 

ground that it rested on the dismissed conspiracy charge. Here 

he offers a different argument: that the district court failed to 

make the necessary finding that Clark exercised control over 

another criminal participant. See United States v. Smith, 374 

F.3d 1240, 1250 (D.C. Cir. 2004) (“All persons receiving an 
9

enhancement [under Section 3B1.1] must exercise some 

control over others . . . .” (internal quotation marks omitted)

(alteration in original)). Because Clark’s objection failed to 

put the district court and the government on notice that he 

disputed the issue of control, Clark has forfeited any 

challenge to the sufficiency of the district court’s finding on 

this question. See Adams v. Rice, 531 F.3d 936, 945 (D.C. Cir. 

2008) (holding that a party forfeits for appeal arguments not 

raised before the district court). Our review is thus for plain 

error. See United States v. Mahdi, 598 F.3d 883, 888 (D.C. 

Cir. 2010).

To justify the enhancement, the district court relied on 

the presentence report’s unchallenged finding that Clark “was 

the mastermind of his offense,” as well as its own finding that 

Clark’s cousin, who siphoned nearly $30,000 from the 

$40,000 Clark unlawfully wired to the cousin’s account, was 

“involved in th[e] whole event.” Trial Tr. 7 (Aug. 4, 2011); 

see Fed. R. Crim. P. 32(i)(3)(A) (providing district court 

“may accept any undisputed portion of the presentence report 

as a finding of fact”). As Clark emphasizes, we have 

previously found “conclusory labels . . . inadequate” 

justifications for sentencing enhancements. United States v. 

Graham, 162 F.3d 1180, 1183 (D.C. Cir. 1998). But the word 

“mastermind” has real meaning: masterminds direct and 

control others. See Webster’s Third New International 

Dictionary 1390 (1993) (“2: a person who supplies the 

directing or creative intelligence for a project or for a group of 

persons undertaking a project”). To be sure, the “others” 

might be innocent and unwitting participants. Here, however,

we are convinced by the district court’s discussion of Clark’s 

cousin’s criminal involvement that the court found that Clark 

controlled at least one criminal participant. Because this 

justification for the aggravating role enhancement hardly 
10

“exceeds the limits of our deference,” we see no error, much 

less plain error. Smith, 374 F.3d at 1250.

Clark’s Ex Post Facto Clause challenge requires a 

different result. The Ex Post Facto Clause prohibits the courts 

from applying the Sentencing Guidelines retroactively. See 

Peugh v. United States, 133 S. Ct. 2072, 2084 (2013). The 

district court sentenced Clark under the 2010 Guidelines for 

crimes he committed years earlier. Although Clark failed to 

object at sentencing, the government concedes, as it must, that 

this amounted to plain error. We shall therefore vacate Clark’s 

sentence and remand for resentencing under the proper 

Guidelines.

IV.

The Mandatory Victims Restitution Act directs

sentencing courts to order individuals convicted of bank fraud 

to “make restitution to the victim of the offense.” 18 U.S.C.

§ 3663A(a)(1). Finding the approximately $219,000 loss 

alleged in the indictment—including the losses from the bank 

fraud count on which Clark was acquitted—attributable to 

Clark’s scheme, the district court ordered him to make 

restitution for the entire amount. Clark argues that the court’s 

inclusion of losses flowing from the acquitted count violated 

Supreme Court and D.C. Circuit decisions that limit 

restitution orders to “the offense of conviction.” See Hughey v. 

United States, 495 U.S. 411, 413 (1990) (emphasis added);

United States v. Dorcely, 454 F.3d 366, 377 (D.C. Cir. 2006). 

In the district court, however, Clark made a very different 

argument—that the restitution order lacked sufficient 

evidentiary support. To be sure, Clark did refer to his 

acquittal, but he never advanced the position he urges here—

that nothing in the MVRA authorizes restitution for acquitted 

conduct. Our review is thus again for plain error. See Puckett 

v. United States, 556 U.S. 129, 135 (2009).
11

Contrary to Clark’s contention, neither of the decisions 

he cites clearly forecloses including acquitted conduct in 

restitution orders. Although the two decisions do limit 

restitution to the “offense of conviction,” neither resolves the 

question we face here: whether restitution is appropriate for 

acquitted conduct that falls within the scope of other schemebased offenses of conviction—here, the other three bank fraud 

counts. The district court thus committed no plain error. See 

United States v. Laureys, 653 F.3d 27, 32–33 (D.C. Cir. 2011) 

(“Rarely do we find an error to be plain where this court has 

not ruled on the question.” (internal quotation marks 

omitted)).

V.

For the foregoing reasons, we affirm Clark’s 

conviction and restitution obligation, vacate his sentence, and 

remand for resentencing.

So ordered.
RANDOLPH, Senior Circuit Judge, concurring: I join the

opinion of the court but write separately to say a few words

about § 3B1.1(c) of the U.S. Sentencing Guidelines. It seems to

me to be a mistake to say that the § 3B1.1(c) enhancement

applies if, and only if, the defendant has exercised “control”

over one or more of the participants in the crime. 

Section 3B1.1(c) states: “If the defendant was an organizer,

leader, manager, or supervisor in any criminal activity other than

described in (a) or (b), increase [the offense level] by 2 levels.”1

In my view one can be a “leader” or “organizer” within the

meaning of that provision without controlling other persons. 

The President of the United States, for instance, is sometimes

called the leader of the Free World, but no one thinks this means

he controls other countries. The commentary accompanying

§ 3B1.1 makes clear that control is just one of the many factors

to be considered in determining whether the defendant was a

leader or organizer. See U.S.S.G. § 3B1.1 application note 4.2

 Subsections (a) and (b) are as follows: 1

(a) If the defendant was an organizer or leader of a

criminal activity that involved five or more participants or

was otherwise extensive, increase by 4 levels.

(b) If the defendant was a manager or supervisor (but not

an organizer or leader) and the criminal activity involved

five or more participants or was otherwise extensive,

increase by 3 levels.

Application note 4 to § 3B1.1 instructs that, in determining 2

whether a defendant is a leader or organizer, 

[f]actors the court should consider include the exercise of

decision making authority, the nature of participation in

the commission of the offense, the recruitment of

accomplices, the claimed right to a largershare ofthe fruits

of the crime, the degree of participation in planning or
2

The court held in United States v. Graham that no one of those

factors is “dispositive.” 162 F.3d 1180, 1185 (D.C. Cir. 1998).

The confusion arises because Graham—a § 3B1.1(b) case,

not, as here, a § 3B1.1(c) case—a few lines later said: “All

persons receiving an enhancement must exercise some control

over others.” Id. Subsection (b) applies only to managers and

supervisors; it does not apply to a defendant who was an

organizer or leader. See U.S.S.G. § 3B1.1(b). Applying that

statement to the entire Guideline, including subsection (c),

would render lack of control dispositive for leaders and

organizers. This would render Graham self-contradictory

because control is just one of the factors to be considered. 

I therefore would not treat this one sentence from Graham,

which was dictum as applied to organizers and leaders, as

settling the issue under § 3B1.1(c). Although the sentence has

been sporadically repeated, see, e.g., United States v. Smith, 374

F.3d 1240, 1250 (D.C. Cir. 2004); United States v. Quigley, 373

F.3d 133, 139 (D.C. Cir. 2004), it has hardly become our

consistent approach. Cf. Maj. Op. at 8. We have also repeated,

since Graham, that “[w]hile plainly control is one factor in

determining whether someone qualifies as an ‘organizer or

leader,’ the Guidelines include several other factors.” United

States v. Brodie, 524 F.3d 259, 270 (D.C. Cir. 2008); see also

United States v. Wilson, 240 F.3d 39, 122-23 (D.C. Cir. 2001).

A brief survey of the other circuits’ treatment of § 3B1.1

indicates that “[m]ost courts require that . . . the defendant []

exercise some degree of control over others involved in the

commission of the offense or [that he] have been responsible for

organizing the offense, the nature and scope of the illegal

activity, and the degree of control and authority exercised

over others.
3

organizing others for the purpose of carrying out the crime.” 

DAVID DEBOLD, PRACTICE UNDER THE FEDERAL SENTENCING

GUIDELINES § 3.04(A)(2)(c) (2013) (emphasis added); see, e.g.,

United States v. Wasz, 450 F.3d 720, 730 (7th Cir. 2006); United

States v. Riley, 335 F.3d 919, 929 (9th Cir. 2003); United States

v. Giraldo, 111 F.3d 21, 24 (5th Cir. 1997). The circuits do vary

somewhat in their approaches. See THOMASW. HUTCHISON ET

AL., FEDERAL SENTENCING LAW & PRACTICE 1195-97 (2013). 

But the approach Clark urges us to adopt would preclude

applying the enhancement when “the defendant played a

coordinating or organizing role,” United States v. Brown, 315

F.3d 929, 932 (8th Cir. 2003) (internal quotation marks and

citation omitted), or when, as here, it is the defendant’s

“expertise alone that made the operation possible,” United States

v. Kelly, 204 F.3d 652, 657-58 (6th Cir. 2000). I cannot

reconcile such an approach with the Guideline.

The record supports the district court’s finding that Clark

was the “mastermind” of this offense, and I agree with the

majority that “[m]asterminds direct and control others.” Maj.

Op. at 9. That is sufficient, though not in my view necessary, to

affirm the two-level enhancement.