# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 22, 2013 Decided April 4 , 2014

No. 11

- 3072

U NITED S TATES OF A MERICA , A PPELLEE

v.

R EGINALD C LARK , A PPELLANT

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. Attor ney, 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: R OGERS and T ATEL , Circuit Judges , and R ANDOLPH , Senior Circuit Judge

. Opinion for the Court filed by Circuit Judge T ATEL

.2
Concurring opinion filed by Senior Circuit Judge R ANDOLPH

.

T ATEL , Circuit Judge : Challenging his conviction for bank and wire fraud, Appellant contends that the district court erroneously denied his Bat son 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 g uidelines adopted subsequent to his crime s , 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 S entencing G uidelines violated the Ex Post Facto Clause, we vacate Appellant’s sentence and remand for
resentenc ing

.

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

- f our 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 re tirement account. The grand jury indicted Clark on four co unts 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 co usin’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 non

black 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 follow ed through. Largely due to the absence of t his comparative analysis

, t he district court rejected Clark’s Batson challenge, f inding 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 gu ilt, 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 t he account reflected a4 $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

. S ee U.S.S.G. § 3B1.1(c ). Invoking the Mand atory 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 S entencing G uidelines and erred by applying an aggravating role enhancement

, and his restitution obligation on the ground that it incl uded acquitted conduct

. W e 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. a t 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, t he 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 a bout 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
g overnment’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 it s 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, 2 51

– 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 govern ment’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 vi ew

— 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 per sonal 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 o n appeal, Clark now offers the comparative analysis of struck and seated jurors that the district court had inquired about , arguing t hat 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. B ut cf

. Miller

- El , 545 U.S. at 241 & n.2 (reasoning that comparative

- analysis

- based arguments a re 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 concern7
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 juror s 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 ph ysics, 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 ) ; Ju ror 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 gov ernment’s discriminatory intent. Gooch , 665 F.3d at 1332 (internal quotation marks omitted) ; see also Snyde r , 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 fai ling 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 evidenc e fell outside Rule 404(b) because it was intrinsic to the c harged 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 th at the “ inextricably intertwined” exception is narrow. United States v. Bowie , 232 F.3d 923, 92 8

– 2 9 (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 harm l ess

. See Kotteakos v. United States , 328 U.S. 750, 776 (1946) (holding that nonconstitutional errors that ha ve 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 fraudulent ly 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 char ge . 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 S t ates v. Smith

, 374 F.3d 1240, 1250 (D.C. Cir. 2004) (“All persons receiving a n9
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 i ssue 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). O ur 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 p resentenc e r eport’s unchallenged finding that Clark “was the mastermind of his offense,” as well as its own finding that Clark’s cousin

, who siphoned nearly $ 3 0,000 from the $40,000 Clark unlawfully wired to the cousin’s account

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

s ee 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”). A s 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 : m asterminds direct and control others. See Webster’s Third New International Dictionary 1390 (1993) (“2: a person who supplies the dir ecting 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. H ere , however, we are convinced by the district court’s discussion of Clark’s cousin’s c riminal involvement that the court found that Clark controlled at least one criminal participant. Because this justification for the aggravating role enhancement hardly10
“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 S entencing G uidelines retroactively. See Peugh v. United States , 133 S. Ct. 2072, 2084 (2013). The distri ct 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 G uidelines.

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 $21 9 ,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

. Cla rk argues that the court’s inclusion of losses flowing from the acquitted count violated Supreme Court and D.C. C ircuit 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 h e never advanced the position he urges here

— that nothing in the MVRA authorizes restitution for acquitted conduc t . 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 o f 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 fo r acquitted conduct that falls within the scope of other scheme

based 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 res entencing.

So ordered

.R A N D O L P H , Senior Circuit Judge
, con cu rring : I join the opinion of the court but write separ ately to say a few wo rds about § 3B1.1( c) of the U.S. Sentencing Guidelines. I t seems to

me to be a mi stake to say that the § 3B1.1( c) enhanc ement app l i es if, and only if, the defe ndant has exercised “contr ol”

over one or more of

the par ticipants in the crime.

Section 3B1.1( c) states: “I f the defe ndant was an org anizer, leade r, manag er, or supervisor in any criminal activity other than descr ibed in (a) or (b), incre ase [t he offe nse level] by 2 levels.” 1 I n my view one can be a “lea der” or “org anizer” within the

mean ing of that provision without controlling other persons. The President of the United States, for instance, is s o m et i m es called the leade r of the Fr ee World, but no one thinks this means he controls other countries. The commentar y acc ompany ing § 3B1.1 makes clea

r that control is just one of the many fac tors to be considere d in deter mining whether the defe ndan t was a l ea d er or org anizer. See U.S.S.G. § 3B1.1 application note 4. 2

Subsec ti ons (a ) a

nd (b) ar e a s f

ol lo w s: 1

(a ) I f the def

endant was an or ga

nize r or le ade r of a

cr im inal ac ti vi ty that inv ol ve d fiv e o r m or e pa rt ic ipant s or

w as ot her w is e e xtens iv e, inc re as e by 4 le ve ls

. (b) I f the def

end an t was a m ana ge r or super vi so r (but not

an or ga nize r or le ade r) and the cr im inal ac ti vi ty inv ol ved fi ve or m or e par

ti cip ants or w as ot

her w is e exte nsiv e, incr ea se by 3 le ve ls

. Applic at io n not e 4 to § 3B1.1 inst ruc ts that
, in dete rm in ing 2

w hethe r a defe ndant is a le ade r o r o rg aniz er , [f ]a ct or s the cou rt sho uld co nside r include the exerc is e of dec is io n m ak ing autho ri ty , th e natur e of par ti ci pati on in the co m m is si on of the of

fe nse, th e re cr

uitm ent of

ac co m plic es , the cl ai m ed ri ght to a la rg er sha re of the fr uits of the crime, the deg re e of par ti ci pati on in planning or2

The c ourt held in United States v. Graham that no one of those fac tors is “dispositive.” 162 F.3d 1180, 1185 (D.C. Cir. 1998).

The confusion arises beca use Graham —a § 3B1.1( b) case , not, as here
, a § 3B1.1( c) case —a few lines later said: “All
persons rec eiving an enhanc ement must exercise some control over others.” Id. S u b s ec t i on (b) applies only to manag ers and supervisors ; it does not apply to a defe ndant who was an org anizer or leade r. See U.S.S.G. § 3B1.1( b). Apply i ng that
statement to the entire Guideline, including sub s ection (c)
, would rende r lack of control dispositi ve for leade rs and
org anizers. This woul d re nder Graham self-c ontradictory beca use control is just one of the f actor s to be consider ed.

I there fore would not trea t this one sentenc e from Graham
, which was di ct u m as applied to org anizers and leade rs, as settling the issue under § 3B1.1( c). Al though the sentenc e has been sporadica lly repe ated, 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 b ec o m e our consistent approa ch. Cf. Maj. Op. at 8. We have also repe ated, since Graham
, that “[w]hi le plainly control is o n e fac tor in deter mining whether someone qualifies as an ‘org anizer or leade r,’ the Guidelines i nclude sever al other fac tors.” United States v. Brodie
, 524 F.3d 259, 270 (D

. C

. C i r. 2008); see also United States v. W

ilson , 240 F.3d 39, 122- 23 (D.C. Cir. 2001).

A brief survey of the other circ uits’ t re at m ent of § 3B1.1 indicates that “[m] ost courts require t h at

. . . the defe ndant [] exercise some deg ree of control over others involved in the commission of the offe nse or [t hat he] have been responsible for

or ga nizi ng the offe nse , the natur e and sc ope of the il le ga l

ac ti vity
, and the degr ee of co ntro l and autho ri ty exe rc is ed

ov er ot her s.3

organizing others for the purpose of carrying out t h e cri me .” D A V I D D E B O L D , P R

A C TI C E U

N D E R TH E F E D E R

A L S EN TEN C I

N G G U I D E L I N E S § 3.04(A)( 2)(c ) (2013) (empha sis added) ; see, e.g. , United States v. W

asz , 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 circ uits do vary somewhat in their approa ches. See T H O M A S W. H U TC H I S O N E T
A L ., F E D E R

A L S E N TE N C I N G L A W & P R

A C TI C E 1195-97 (2013). But the approa ch Clark u rge s u s to adopt would prec lude apply i n g the enhanc ement when “the defe ndant play ed a coordina ting or org anizing role,” United States v. Brown
, 315 F.3d 929, 932 (8th Cir. 2003) (interna l quotat ion marks and citation omitted), or when, as here
, it is the defe ndant’s “exp e r ti se alone that made the opera tion possible,” United States

v. Kelly
, 2 0 4 F. 3 d 652, 657-58 (6th Cir. 2000). I cannot

rec oncile such a

n approa ch with the Guideline.

The rec ord supports the dis t ri ct court’s finding that Clark

was the “master

mind” of this offe nse, and I ag re e wi th the majority that “[m] ast er m i nds direc t and control others.” Maj. Op. at 9. That is sufficie nt, though not in my view nece ssary , to aff irm the two-leve l enhanc ement.