United States v. Clark

• Decision Date: 04 April 2014
• Docket Number: No. 11–3072.,11–3072.
• Parties: UNITED STATES of America, Appellee v. Reginald CLARK, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

747 F.3d 890

UNITED STATES of America, Appellee

v.Reginald CLARK, Appellant.

No. 11–3072.

United States Court of Appeals,District of Columbia Circuit.

Argued Nov. 22, 2013.

Decided April 4, 2014.

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.

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. 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, 106 S.Ct. 1712, 90 L.Ed.2d 69 (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 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 $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. SeeU.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, 106 S.Ct. 1712;United States v. 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, 128 S.Ct. 1203, 170 L.Ed.2d 175 (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, 125 S.Ct. 2317, 162 L.Ed.2d 196 (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).

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, 125 S.Ct. 2317 (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 that she lacked...