United States v. Barrow

109 F.4th 521

UNITED STATES of America, Appellee v. Chance BARROW, Appellant

No. 21-3081

United States Court of Appeals, District of Columbia Circuit

Argued May 9, 2024

Decided July 19, 2024

Appeal from the United States District Court for the District of Columbia (No. 1:20-cr-00127-1)

Lisa B. Wright, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A. J. Kramer, Federal Public Defender. Tony Axam Jr., Assistant Federal Public Defender, entered an appearance.

Timothy R. Cahill, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Chrisellen R. Kolb, Nicholas P. Coleman, and Elizabeth Aloi, Assistant U.S. Attorneys.

Before: Henderson, Millett and Childs, Circuit Judges.

Childs, Circuit Judge:

After a seven-day trial, a jury convicted Appellant Chance Barrow ("Barrow") of two counts of wire fraud in violation of 18 U.S.C. § 1343 and one count of concealment of material facts in violation of 18 U.S.C. § 1001(a)(1). In turn, the district court sentenced Barrow to seventeen months of imprisonment and ordered him to pay $77,057.00 in restitution. On appeal, Barrow seeks reversal of his convictions and the order of restitution on the basis that there was insufficient evidence to support the convictions, and that the district court erred in its evidentiary findings, case-management rulings, jury instructions on concealment, and award of restitution. After careful consideration of the record, we vacate Barrow's wire fraud convictions and the district court's restitution order, reverse Barrow's conviction for concealment of material facts, and remand the concealment charge for further proceedings consistent with this opinion.

I.

In 2016, the Army Criminal Investigation Division ("Army-CID") employed Barrow as a digital forensic examiner in Army-CID's Pacific Fraud Field Office in Irvine, California. By 2018, Barrow was a special agent responsible for running his own investigations. In March 2018, Barrow's now ex-wife filed a report against Barrow with the Naval Criminal Investigative Service ("NCIS") alleging sexual assault. When Army-CID learned of NCIS's criminal investigation, Army-CID placed Barrow on administrative duty—a status where the employee loses his badge, credentials, and weapon and is unable to conduct investigations. After receiving the NCIS's investigative report in April 2018, Army-CID officials met with Barrow and conveyed to him that he "no longer had a future with our agency and it did not look good for him." J.A. 1889:20-21. That meeting followed these officials' prior meeting with Frank Robey—the official with ultimate authority to fire or retain Barrow—who had told them "it's probably better off if [Barrow] resigns" but had not explicitly said he would fire Barrow if he did not resign. J.A. 1902-1903. Approximately thirty minutes later, Barrow submitted his resignation.

In May 2018, Barrow applied for a position in Maryland as a criminal investigator or special agent with the Treasury Inspector General for Tax Administration ("TIGTA"). To complete the TIGTA application, Barrow answered a series of questions regarding his suitability for employment. When asked if he is a "current federal employee," Barrow stated that he was not a current federal employee, J.A. 1095 #3; when asked what agency and organization currently employed him, Barrow answered "not applicable," J.A. 1095 #5; when asked additional information about his current agency of employment, Barrow stated that he was currently employed by "Department of Defense - United States Army Criminal Investigations Command," J.A. 1095 #6; when asked "[i]f you are a current Federal employee, what is your duty station," Barrow stated his duty station was Irvine, California, J.A. 1095 #7; and when asked "[i]f you are a Federal employee, under what type of appointment are you currently serving," Barrow stated that he was serving an appointment as a "career or career-conditional appointment in the competitive service," J.A. 1095 #8. Barrow submitted additional documentation to support his application package including his resume which stated he possessed an active Top Security Clearance; an outdated Standard Form ("SF") 50: Notification of Personnel Action; a SF-15: Application for 10-Point Veteran Preference in which he identified his current employment as a criminal investigator; and a Treasury Department Bureau of Fiscal Services Optional Form, where he answered "no" when asked if, "[d]uring the last 5 years," he had ever "been fired from any job for any reason," "quit after being told that [he] would be fired," left "any job by mutual agreement because of specific problems" or "debarred from Federal employment." J.A. 1120.

Based on the information Barrow provided, a TIGTA employee conducted a pre-employment screening telephone interview with Barrow. Barrow told the interviewer that he was not currently a federal employee and that he was not leaving current employment because of allegations of misconduct or other unfavorable circumstance. Since he had passed a full background check within five years of his TIGTA application, Barrow was asked to complete a SF-86C by updating answers to questions from his last SF-86: Questionnaire for National Security Positions. Significantly, Barrow failed to provide a reason for departing Army-CID, to include whether he was "[f]ired," "[q]uit . . . after being told you would be fired," "left . . . by mutual agreement following charges or allegations of misconduct"; provided as a reference Kirk Ellis, who was not Barrow's supervisor at the time he resigned from Army-CID and was his close friend and confidante; and reported no changes to whether he had ever had his National Security Clearance "denied, suspended, or revoked" or if there had been any changes to his investigations and clearance record. J.A. 1126-J.A. 1127, J.A. 1166, J.A. 1184. TIGTA hired Barrow as a criminal investigator with a start date of October 1, 2018.

TIGTA received notice of the new domestic violence allegations against Barrow on July 24, 2019. On August 1, 2019, TIGTA initiated a criminal investigation and reassigned Barrow to administrative duties. Thereafter, TIGTA placed Barrow on paid administrative leave on September 11, 2019, indefinite suspension without pay on April 22, 2020, and officially terminated him on July 17, 2021.

On July 22, 2020, a federal grand jury indicted Barrow on two counts of wire fraud in violation of 18 U.S.C. § 1343, and one count of concealment of material facts in violation of 18 U.S.C. § 1001(a)(1). At trial in June 2021, the district court made several evidentiary rulings related to the NCIS investigation of Barrow and his job performance at TIGTA. The district court prohibited disclosure of the details of the NCIS investigation of Barrow to the jury, concluding that the only relevance the investigation had to the case was that Barrow was under investigation at the time of his application to TIGTA. Further, the district court prevented Barrow from rebutting the inference that he moved to Maryland to evade the NCIS investigation. The district court noted that evidence of Barrow's inquiry into other jobs prior to the NCIS investigation did not "provide meaningful evidence of Barrow's state of mind at the time he resigned from Army-CID and moved from California to Maryland." Appellee's Br. 44-45. The district court further excluded evidence from witness Scott Moffit regarding Barrow's job performance while working at TIGTA, finding that Barrow's job performance was not an issue. Additionally, the district court prohibited introduction of evidence relating to advice Barrow requested on whether he should disclose the NCIS investigation, finding that this evidence went to the merits of the NCIS investigation, which had been excluded by the court. On June 24, 2021, the jury found Barrow guilty on both wire fraud counts and the concealment count. The district court sentenced Barrow to seventeen months of imprisonment and ordered him to pay $77,057.00 in restitution.

Barrow timely appealed.

II.

We have jurisdiction to review Barrow's appeal of his judgment of conviction as a final order under 28 U.S.C. § 1291.

A.

Before turning to the merits, we first address whether Barrow preserved his sufficiency challenge to the wire fraud convictions, as it dictates which standard of review to apply: de novo or plain error. If Barrow properly preserved the issue, we review questions of law de novo.¹ United States v. Boyd, 803 F.3d 690, 692 (D.C. Cir. 2015) ("We review a challenge to the sufficiency of the evidence de novo.") (emphasis added). Conversely, if Barrow failed to preserve the issue, plain error review applies.² United States v. Bostick, 791 F.3d 127, 142 (D.C. Cir. 2015) ("Because Johnson did not raise that argument in the District Court, our review is for plain error.").

To preserve a claim of error on appeal, a party typically must raise the issue before the trial court. No procedural principle is more familiar than that a right may be forfeited in a criminal case by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.

Salazar ex rel. Salazar v. Dist. of Columbia, 602 F.3d 431, 436 (D.C. Cir. 2010) (cleaned up).

Barrow argues that de novo review is applicable because he " 'preserve[d] the full range of challenges' to the sufficiency of the evidence." Reply Br. 6 (citing, e.g., United States v. Milton, 8 F.3d 39, 45 (D.C. Cir. 1993) (according to Barrow, a "general claim of insufficient evidence preserved defense that was never raised or argued to the court or jury in any form below")). The government disagrees asserting that plain error review is applicable because Barrow "moved for judgment of acquittal on the wire-fraud counts based on specific evidentiary grounds, but he did not assert that the government failed to prove he had schemed to deprive TIGTA of 'money or property.' " Appellee's Br. 18 (...