United States v. Mark Clark

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 13, 2025 Decided October 10, 2025

No. 24-3033

UNITED STATES OF AMERICA,

APPELLEE

v.

MARK L. CLARK,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:20-cr-00151-1)

Christopher Macchiaroli, appointed by the court, argued

the cause and filed the briefs for appellant.

David B. Goodhand, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief were Matthew M.

Graves, U.S. Attorney, at the time the brief was filed, and

Chrisellen R. Kolb, Elizabeth H. Danello, Michael Truscott,

and George Eliopoulos, Assistant U.S. Attorneys.

Before: SRINIVASAN, Chief Judge, WILKINS, and CHILDS,

Circuit Judges.

Opinion for the Court filed by Circuit Judge WILKINS.

2

WILKINS, Circuit Judge: Mark Lamont Clark was an

officer with the Metropolitan Police Department (“MPD”) in

Washington, D.C., for over three decades. Within the span of

five days, at the end of his career with MPD, Clark used

prohibited neck restraints on two separate individuals while on

duty. After a grand jury indicted Clark on five charges based

upon these two incidents, a jury found Clark guilty of two

counts of depriving the individuals of their rights under color

of law in violation of 18 U.S.C. Section 242. He was

sentenced to concurrent terms of six months incarceration for

each count, followed by twenty-four months of supervised

release. Clark timely appealed his convictions to this Court.

Because each of Clark’s challenges fail, we affirm.

I.

A.

We summarize the evidence in the light most favorable to

the jury verdict based on Clark’s body-worn camera (“BWC”)

footage, the District Court’s factual findings, and excerpts of

the trial transcripts provided in the record. See Bryan v.

United States, 524 U.S. 184, 189 (1998) (explaining that when

reviewing a criminal jury conviction, appellate courts accept

the government’s version of the evidence).

On the evening of July 13, 2018, Clark went to the

McDonald’s at 3rd and C Street, Southwest, towards the end of

his shift. After picking up his food, Clark became involved in

a confrontation with a group of young people inside the

restaurant. Ex. A1 at 8:35–9:34. Clark approached one of

the young men, got very close to the front of his body and

began to walk forwards (referred to as “walking down”). To

avoid making contact with Clark, the young man walked

3

backwards and bumped into a pillar and another officer, Officer

George Baldwin. Id. at 8:41–9:03. Clark proceeded to

follow the young man around the restaurant, before eventually

exiting while the young man and the rest of his group stayed

inside talking to Officer Baldwin. Id. at 9:03–9:45.

However, instead of leaving the vicinity of the

McDonald’s, Clark mounted his motorcycle and stayed out

front, watching the young men inside through the large glass

windows. Ex. A3 at 0:00–0:29. When one of the young men

walked outside of the restaurant, Clark put on his helmet and

took off on his motorcycle. Id. 0:29–1:17. Clark rode his

motorcycle around the corner where another door to the

restaurant led and saw some of the young men previously

inside the restaurant now standing outside on the sidewalk. Id.

at 1:17–1:27. A witness testified that Clark complained of

something hitting him on the back of his helmet as he rode

away. Trial Tr. 437:7–25. Clark passed the young men and

turned his motorcycle around, pulling onto the sidewalk to ride

back towards them. Clark drove up to where the young men

were standing and stopped within a very short distance in front

of them. Ex. A3 at 1:27–1:33.

The young men began to yell at Clark after he stopped in

front of them. Id. at 1:34–35. Clark got off his motorcycle

and made physical contact with Daquan Toland because

Toland did not move back as Clark stepped closer to him. Id.

at 1:34–37. Although “agitated because of the situation[,]”

neither Toland nor his friends “appear[ed] to be . . . presenting

any type of aggressive threat towards [Clark].” Trial Tr.

1284:2–14. Clark then reached out and wrapped his hands

around Toland’s neck—performing a MPD-prohibited trachea

hold—and proceeded to walk Toland backwards towards

Officer Baldwin’s police car parked on the curb about 30–60

feet away. Ex. A3 at 1:40–50; Trial Tr. 1285–88. As Clark

4

pushed Toland back with his hands wrapped around Toland’s

neck, Toland “attempt[ed] to defend himself” by “grabbing at

[Clark], trying to get [Clark] to let go.” Trial Tr. at 1286:2–4.

Clark turned Toland around so the front of Toland’s body was

against the side of the police car. Ex. A3 at 1:51–2:35.

As Clark had Toland pinned facing the police car, Clark

kept one hand around the back of Toland’s throat and

handcuffed Toland’s hands behind his back. See Trial Tr.

1289:4–12. Clark held Toland in that position until more

officers arrived on the scene. Ex. A-3 at 3:12–5:06.

After Toland was arrested he complained of pain in his

right leg and was treated for his injury at Howard University

Hospital.

B.

On July 18, 2018, five days after the incident with Toland,

Clark was working as a security guard and as an authorized

MPD officer at another McDonald’s location on Good Hope

Road in Southeast, Washington, D.C. At some point during

Clark’s shift, Kenneth Coleman attempted to use the restroom

inside of the McDonald’s. Clark denied Coleman access to

the restroom, turned on his BWC, and radioed for a Sergeant

Supervisor to respond to the McDonald’s at Coleman’s request

so that Coleman could file a citizen’s complaint. Ex. B-1.1,

2:04–2:41.

While Clark sat in a chair with his headphones on, he faced

Coleman who was standing some feet away from him. Clark’s

BWC footage showed Coleman looking at his cell phone

screen, with wired-headphones in his ears, waiting for Clark’s

supervisor to arrive. Ex. B-1.1, 2:40.

5

After Clark let Coleman know that a supervisor was on the

way, Clark asked Coleman for his name and told him that he

would be barred from that McDonald’s location after Coleman

had the chance to speak with Clark’s supervisor. Id. at 02:37–

03:10. Coleman began to argue with Clark about why he

would be barred from the restaurant. Id. at 3:11–3:25. As the

two continued to argue, Clark told Coleman to “back up a little

. . . because [Coleman] was getting a little too close.” Id. at

3:53–4:00. Clark also accused Coleman of doing drugs. Id.

at 3:47–49. Coleman denied doing drugs, moved away from

Clark and continued to look down at his phone in silence. Id.

at 3:49–3:59.

As Coleman was occupied with his phone, Clark asked

Coleman “you understand what I’m saying? You understand

what I’m telling you?” Id. at 4:00–4:02. Clark then removed

his own headphones and said, “see I’m about to take this off

right now because you getting a little too close.” Id. at 4:02–

05. Clark said this despite the fact that Coleman had not

moved from his position a few feet away from Clark and

remained occupied, looking at his cell phone screen. Id. at

4:00–05. Clark then asserted “now, you want to try me, try

me.” Id. at 4:06–09. Coleman put his phone down by his

side, and responded in a quiet tone, “do what you do.” Id. at

4:09–10. Clark then repeatedly threatened Coleman to “take

that step forward,” to which Coleman repeatedly responded,

“do what you do.” Id. at 4:11–4:27. Coleman then told

Clark, “don’t even worry about it, I got you.” Id. at 4:27–28.

Clark responded in an elevated tone, “I know you got me.

You better have me, because imma’ have you. Okay, imma’

have you.” Id. at 4:28–4:36.

Coleman then walked away from Clark while saying “you

better believe, you going to be sick. You won’t have your

mother fucking job.” Id. at 4:37–4:41. Clark responded,

6

“alright. Okay, alright. Yep, yep. Y’all been saying that for ten

years around this neighborhood and I’m still here.” Id. at

4:41–4:47. Coleman yelled “the only thing you running is

your fucking mouth. And you sitting here like a fat bitch.” Id.

at 4:50–4:53. After the two continued to argue back and forth,

Coleman walked closer to where Clark was sitting. Id. at

5:05–5:06.

All of a sudden, Clark leaped up from his chair, lunged

towards Coleman, and wrapped his hands around Coleman’s

neck while pushing Coleman back towards a corner of the

restaurant. Id. at 5:06–5:16. Clark pinned Coleman against a

corner in the restaurant with his hands still wrapped around

Coleman’s neck and yelled at Coleman to put his hands behind

his back. Id. at 5:16–5:18. Startled, Coleman put his hands

out on either side of him and responded that he was “not doing

nothing.” Id. at 5:18–5:25. With his hands still wrapped

around Coleman’s throat, Clark pinned Coleman to another

wall of the restaurant. Id. at 5:26–5:33. Coleman exclaimed

“why you choking me yo, you’re choking me!” Id. at 5:35–

5:39. Clark continued to hold Coleman in various MPD-

prohibited carotid artery holds and trachea holds for about two

minutes while Coleman can be heard gurgling and struggling

to breathe. Id. at 5:40–7:22. When another officer arrived at

the scene, Coleman was handcuffed and taken outside of the

restaurant. Id. at 7:37–9:10.

C.

A grand jury indicted Clark on five charges related to these

incidents. Count One of the indictment related to Clark’s

actions against Toland, and stated that:

On or about July 13, 2018, in the District of

Columbia, the defendant, MARK L. CLARK,

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while acting under color of law as a [MPD]

Officer, willfully deprived [Toland] . . . of the

right, secured and protected by the Constitution

and the laws of the United States, to be free

from an unreasonable seizure, which includes

the right to be free from the use of unreasonable

force by a law enforcement officer.

Specifically, CLARK assaulted [Toland] and

used a prohibited trachea hold without legal

justification. The offense resulted in bodily

injury to [Toland] (All in violation of Title 18,

United States Code, Section 242 (Deprivation

of Rights Under Color of Law)).1

Count Three alleged substantially the same as Count One, but

was instead related to Clark’s use of force against Coleman and

alleged that Clark used a prohibited carotid artery hold in

addition to the prohibited trachea hold during Coleman’s arrest.

The other three charges in the indictment were dropped the day

before the case proceeded to trial.

1

18 U.S.C. Section 242 provides that:

Whoever, under color of any law, statute, ordinance,

regulation, or custom, willfully subjects any person

in any State, Territory, Commonwealth, Possession,

or District to the deprivation of any rights,

privileges, or immunities secured or protected by the

Constitution or laws of the United States . . . shall be

fined under this title or imprisoned not more than

one year, or both; and if bodily injury results from

the acts committed in violation of this section . . .

shall be fined under this title or imprisoned not more

than ten years, or both[.]

8

At the close of evidence, and before excusing the jury to

deliberate, the District Court instructed the jury that in order to

find Clark guilty of violating 18 U.S.C. Section 242, Counts

One and Three, it needed to find that: (1) “[Clark] acted under

color of law”; (2) “[Clark] deprived a person present in the

United States of a right secured or protected by the Constitution

or laws of the United States”; (3) “[Clark] acted willfully”; and

(4) “the offense resulted in bodily injury.” A. 1049, 1224.

The District Court also gave a detailed instruction to the jury

as to the willfulness element which we discuss infra in section

II(A) of this opinion. After five days of jury deliberations, the

jury returned a guilty verdict as to both Counts.

Clark unsuccessfully moved for a judgment of acquittal,

both at the close of the government’s case and the close of all

evidence. Clark also moved for a new trial contending that (1)

the District Court improperly instructed the jury on the

willfulness element of Section 242; (2) the evidence was

insufficient for a reasonable jury to conclude Clark acted

willfully; and (3) the evidence was insufficient to prove Clark

used excessive force which resulted in bodily injury to Toland.

The District Court denied the motion and sentenced Clark to

six months imprisonment, followed by twenty-four months of

supervised release for each Count to be served concurrently.

II.

Clark timely appealed his convictions to this Court. He

contends that: (1) the District Court improperly instructed the

jury as to the willfulness element under Section 242; (2) the

government presented insufficient evidence as to certain

elements required under Section 242 to convict him; (3) the

government sought to impose liability outside of the charges

included in the indictment; (4) the District Court erred in

9

answering the jury’s questions; and (5) the District Court erred

in certain evidentiary rulings.

We have jurisdiction to review Clark’s appeal under 28

U.S.C. section 1291. We reject each of his contentions.

A.

1.

We first decide whether the District Court erred in

instructing the jury as to the willfulness element in Section 242.

We begin by determining the applicable standard of

review. “When reviewing a challenge to jury instructions,

‘[t]he pertinent question is whether, taken as a whole, the

instructions accurately state the governing law and provide the

jury with sufficient understanding of th[e] issues and applicable

standards.’” United States v. Vega, 826 F.3d 514, 524 (D.C.

Cir. 2016) (quoting United States v. Wilson, 605 F.3d 985,

1018 (D.C. Cir. 2010)). Additionally, “[w]hile the propriety

of a submitted jury instruction is reviewed de novo, ‘the choice

of language to be used in a particular instruction…is reviewed

only for abuse of discretion’” unless the issue has not been

preserved. Vega, 826 F.3d at 524 (quoting Joy v. Bell

Helicopter Textron, Inc., 999 F.2d 549, 556 (D.C. Cir. 1993)).

We review unpreserved issues for plain error. United States

v. Purvis, 706 F.3d 520, 522 (D.C. Cir. 2013).

To demonstrate plain error, a defendant must show: (1)

there was “an error that has not been intentionally relinquished

or abandoned”; (2) the error was “plain—that is to say, clear or

obvious”; and (3) “the error . . . affected the defendant’s

substantial rights, . . . which in the ordinary case means he or

she must ‘show a reasonable probability that, but for the error,’

10

the outcome of the proceeding would have been different[.]”

Molina-Martinez v. United States, 578 U.S. 189, 194 (2016)

(quoting United States v. Olano, 507 U.S. 725, 732–34 (1993));

see also United States v. Dominguez Benitez, 542 U.S. 74, 76,

82 (2004). If the defendant makes this showing, we will

“exercise [our] discretion to correct the forfeited error if the

error seriously affects the fairness, integrity or public

reputation of judicial proceedings.” Id. (quoting Olano, 507

U.S. at 736) (internal quotations omitted).

In his opening brief, Clark contends that he preserved his

objection to the District Court’s instruction on willfulness

because he initially submitted the following proposed jury

instruction, which was different than the final instruction given

by the District Court:

The government must show that . . . Clark had

the specific intent to deprive [Coleman or

Toland] of his right not to be subjected to

unreasonable and excessive force. If you find

that a defendant knew what he was doing and

that he intended to do what he was doing, and if

you find that he did violate a constitutional

right, then you may conclude that the defendant

acted with the specific intent to deprive the

victim of that constitutional right.

A. 1232. For its part, the government proposed a willfulness

jury instruction relying, in part, on a treatise 2 and the Third

Circuit’s opinion in United States v. Figueroa, 729 F.3d 267,

277 (3d Cir. 2013). The government’s proposed jury

instruction included language that “it [was] not necessary for

2

See 2 KEVIN F. O’MALLEY ET AL., FED. JURY PRAC. &

INSTRUCTIONS § 29:05 (6th ed. 2025 & Supp. 2019).

11

[the jury] to find that [Clark] knew that he was violating a

specific law or constitutional provision” or have “familiarity

with the Constitution or with the particular constitutional right

involved.” See A. 1231.

The District Court asked Clark whether he would agree to

willfulness instructions if they aligned with what the

government proposed supra, and Clark stated that he would not

“have an objection to that.” A. 33–34, Trial Tr. 1221–22.

Additionally, before the District Court “instructed the jury,

Clark stated that he had ‘no objections to the instructions, in

their entirety[.]’” A. 1227–28 (quoting Trial Tr. 2029); see

also Oral Arg. Tr. 5:5–23 (when asked at oral argument

whether he objected to the District Court’s final jury

instructions, counsel for Clark stated “[t]o answer your

question, Your Honor, I don’t want to dance around it.

Ultimately, when the judge says, are [there] any more

objections? I did not object.”).

Accordingly, the District Court’s final instruction to the

jury to determine whether Clark acted willfully, or “with the

specific intent to interfere with [Toland] or Coleman’s right not

to be subjected to unreasonable force” stated as follows:

It is not necessary for you to find that the

Defendant knew that he was acting unlawfully

or that he was violating a specific law or

constitutional provision. You may find that a

defendant acted willfully even if you find that

he had no real familiarity with the Constitution

or with the particular constitutional right

involved. You must, however, find that the

Defendant intended to use more force than was

reasonable under the circumstances.

12

A. 1227.

Because Clark failed to object to the District Court’s final

jury instruction, and in fact explicitly stated on the record that

he did not have an objection to the jury instruction as given, his

challenge is only subject to plain error review. See Purvis,

706 F.3d at 522 (holding that when a party fails to object to a

jury instruction, and instead pronounces himself satisfied with

the instruction, we review the challenged jury instruction for

plain error).

2.

Clark contends that the District Court’s willfulness jury

instruction was “legally deficient” because of the following

portion of the first sentence: “It is not necessary for you to

find that the Defendant knew that he was acting unlawfully[.]”

A. 1227–28; Appellant Br. 18. Clark argues that the jury

should have been instructed to instead find that “he intended to

engage in unlawful conduct and did so knowing that it was

wrong or unlawful[.]” Appellant Br. 18 (emphasis in

original). Clark contends that this language would have

aligned with “criminally willful conduct” under “existing

precedent.” Id. Instead, according to Clark, the allegedly

erroneous language included in the jury instructions allowed

the jury to convict him based on reckless disregard of the law,

which is contrary to precedent and a lesser state of mind than a

knowing violation of the law. Id. at 18–27.

There are several reasons why Clark has not shown that

the instruction given was plain error. To start, even if the

instructions conveyed a reckless disregard standard, the

governing precedent does not support Clark’s contention that

he cannot be convicted based on that standard. For example,

in Screws v. United States, 325 U.S. 91 (1945) (plurality

13

opinion),3 which involved a predecessor statute substantially

similar to 18 U.S.C. Section 242, law enforcement-defendants

were convicted of beating a Black man to death after arresting

him and before he was found guilty of committing a crime.

On appeal, the Supreme Court reversed the defendants’

conviction because the jury was not properly instructed

regarding the specific intent required to find defendants guilty

of violating then-18 U.S.C. section 20. 325 U.S. at 94–107.

Instead, the jury in Screws was merely instructed that “if the[]

defendants, without [it] being necessary to make the arrest

effectual or necessary to their own personal protection, beat

this man, assaulted him or killed him while he was under arrest,

then they would be acting illegally under color of law, as stated

by this statute.” Id. at 94. In other words, the jury was not

instructed that the defendants had to have any particular state

of mind at all, so long as they beat the victim and did so without

justification. The Court held that this was an error, because

the “question of intent was not submitted to the jury with the

proper instructions.” Id. at 106.

To remedy the intent instruction, the Court explained that

the jury, on remand, had to find that defendants “act[ed]

willfully . . . [when] they act[ed] in open defiance or in

reckless disregard of a constitutional requirement which has

been made specific and definite.” Id. at 105 (emphasis added).

The Court reiterated several times that acting in reckless

disregard of constitutional rights constitutes willfulness, in

addition to acting with a purpose of violating constitutional

3

Screws is referred to as “[t]he seminal case dealing with the

element of mens rea under section 242[.]” United States v.

Ehrlichman, 546 F.2d 910, 920 (D.C. Cir. 1976); see also United

States v. Reese, 2 F.3d 870, 880 (9th Cir. 1993) (“[T]he Supreme

Court’s plurality opinion in Screws . . . remains the touchstone for

analysis” of jury instructions under Section 242.).

14

rights. See id. at 104, 105, 106; see also id. at 118, 130

(Rutledge, J., concurring).

We agreed 30 years later in Ehrlichman, a case involving

section 241—the conspiracy sister statute to Section 2424 —

where we construed Screws to mean that “even if the defendant

did not in fact recognize the unconstitutionality of his act, he

will be adjudged as a matter of law to have acted ‘willfully’

i.e., ‘in reckless disregard of constitutional prohibitions or

guarantees.’” 546 F.2d at 921 (emphasis added). Thus,

Clark’s contention that it was an error, let alone a clear and

obvious error, to permit a conviction based on a “reckless

disregard” standard as opposed to a “knowing violation” finds

no support in our precedent.

Clark then points to the Supreme Court’s opinion in Bryan,

decided subsequent to Screws and Ehrlichman, considering

issues relating to 18 U.S.C. sections 922(a)(1)(A) 5 and

924(a)(1)(D) 6 , which prohibit dealing in firearms without a

federal license. 524 U.S. at 189–90, 193–94. Clark asserts

that Bryan supports his argument that a conviction under

Section 242 cannot be based on mere recklessness and instead

requires knowledge of the law at issue. But Clark is again

mistaken. In Bryan, the jury was instructed that “[a] person

4

“The same principles apply to prosecutions for conspiracy under

section 241” as apply to Section 242, and “the Supreme Court has

made clear since Screws that the ‘specific intent’ requirements of

section 242 are equally applicable (or derivatively applicable) to

section 241.” Ehrlichman, 546 F.2d at 921.

5

Section 922(a)(1)(A) makes it unlawful for any person to engage

in the business of dealing firearms without a federal license.

6

Section 924(a)(1)(D) imposes criminal penalties on whoever

willfully violates any provision of Chapter 44.

15

acts willfully if he acts intentionally and purposely and with the

intent to do something the law forbids, that is, with the bad

purpose to disobey or to disregard the law.” Id. at 190. The

Court upheld the instruction. Id. at 199. While Clark is

correct that Bryan upheld a willfulness instruction that required

knowledge that one’s conduct is unlawful—and so required

more than recklessness—Bryan construed willfulness in a

different statute, not Section 242. Clark also cites to other

cases where courts have expressly concluded that willfulness

cannot be satisfied with a reckless state of mind. Appellant

Br. 23–27. But all of those cases, like Bryan, involved statutes

other than Section 242, and as the Court explained in Screws,

“‘willful’ is a word ‘of many meanings, its construction often

being influenced by its context.’” 325 U.S. at 101 (quoting

Spies v. United States, 317 U.S. 492, 497 (1943)); see also

Bryan, 524 U.S. at 191 (same, citing Spies). Willfulness

generally requires proof that the defendant intentionally

committed the act and did so with a “bad purpose.” Screws,

325 U.S. at 101. The rub is how the “bad purpose” manifests

itself with each particular statute. Here, Screws and

Ehrlichman have squarely held that in the context of Section

242, “willfully” can be proven by acting in reckless disregard

of a clearly delineated constitutional right.

Clark seizes upon the fact that in Bryan, the Court held it

was a misstatement of law to instruct the jury that “[i]n this

case, the government is not required to prove that the defendant

knew that a license was required, nor is the government

required to prove that he had knowledge that he was breaking

the law.” Bryan, 524 U.S. at 199 (emphasis in original).

Instead, the Court held that the latter phrase should have been

worded to say “nor is the government required to prove that he

had knowledge that he was breaking the law . . . that required

a license[.]” Id. (emphasis added). But again, Bryan

involved a statute prohibiting the sale of firearms without a

16

required federal firearms license, a different context than

Section 242. In Ehrlichman, we expressly stated that “[t]here

is no requirement under section 241 that a defendant recognize

the unlawfulness of his acts,” 546 F.2d at 922, which is the

precise language that Clark now asserts was erroneous (though

he did not object below). We explained that so long as the act

violates a clearly defined constitutional right (which Clark does

not challenge here), it is considered “willful” within the context

of Section 242 if the jury finds that the defendant committed

the act with the specific purpose of depriving the victim of that

right. Id.

In other words, where there is a clearly delineated right and

the defendant acts with a purpose to deprive the victim of the

interests protected by that right, the defendant is willfully

trampling on the victim’s constitutional rights, even if he did

not in fact “recognize the unlawfulness of his acts.” Id.

Thus, a jury finding that the defendant did not recognize the

unlawfulness of his acts is not exculpatory. The act is still

“willful,” because even if not intentional, it is nonetheless

reckless. Where the “constitutional right at issue [is] clearly

delineated and plainly applicable under the circumstances of

the case,” and the defendant acted “with the particular purpose

of depriving the citizen victim of his enjoyment of the interests

protected by that federal right,” then “he will be adjudged as a

matter of law to have acted ‘willfully’ i.e., ‘in reckless

disregard of constitutional prohibitions or guarantees.’” Id. at

921 (quoting Screws, 325 U.S. at 106). This is so “even if the

defendant did not in fact recognize the unconstitutionality of

his act.” Id.

The Fourth Amendment confers several rights, including

“[t]he right of the people to be secure in their persons[.]” U.S.

Const. Amend. IV. That right, in turn, protects several

interests, such as the protection against detention without

17

adequate justification, protection against the use of excessive

force, and protection against the search of one’s personal

effects without sufficient cause. Here, the interest at issue is

the protection against the use of excessive force. Thus,

following Ehrlichman, Clark’s acts were “willful” within the

meaning of Section 242 if he committed them with the purpose

and intent to use excessive force against the victims, even if he

was not thinking specifically about the Fourth Amendment

when he acted. This is because Clark’s purpose to use

excessive force, if proven, demonstrates that he acted in

reckless disregard of the right of citizens to be secure in their

persons, which constitutes willfulness within the meaning of

Section 242. See Ehrlichman, 546 F.2d at 921.

Clark cannot demonstrate plain error where the District

Court followed Erlichman, binding precedent in the relevant

context. Here, the jury was told that “the Defendant acted

‘willfully’ if he acted with the specific intent to interfere with

Daquan Toland’s or Kenneth Coleman’s right not to be

subjected to unreasonable force.” A. 1227. The jury was

further told that they “must . . . find that the Defendant

intended to use more force than was reasonable under the

circumstances.” Id. Thus, in order to convict, the jury was

twice explicitly instructed that they were required to find that

Clark had the specific intent to use unreasonable force on the

victims. This language was consistent with the instructions

we approved in Ehrlichman, which required proof of a purpose

and intent to enter the victim’s office without a warrant or

permission. 546 F.2d at 928. There was no plain error here.

See United States v. Park, 421 U.S. 658, 675 (1975) (viewing

jury instructions “as a whole” and holding no plain error where

the instructions were not “misleading and contained an

adequate statement of law to guide the jury’s determination.”).

18

B.

We next address Clark’s contention that insufficient

evidence was presented to the jury to sustain convictions that

he acted willfully, used excessive force, and—as related to

Toland—caused bodily injury in violation of Section 242. For

the reasons clearly explained by the District Court, we affirm.

See A. 1236–42.

We review a sufficiency of the evidence claim de novo,

and consider the evidence presented at trial in the light most

favorable to the government. United States v. Wahl, 290 F.3d

370, 375 (D.C. Cir. 2002). We “will affirm a conviction

where ‘any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.’” United

States v. Booker, 436 F.3d 238, 241 (D.C. Cir. 2006) (emphasis

removed) (quoting Jackson v. Virginia, 443 U.S. 307, 319

(1979)). This standard sets an “exceedingly heavy burden”

for an appellant to overcome. Id. “[F]ull play” is given to the

jury “to determine credibility, weigh the evidence and draw

justifiable inferences of fact.” United States v. Hall, 613 F.3d

249, 252 (D.C. Cir. 2010) (quoting United States v. Carson,

455 F.3d 336, 368–69 (D.C. Cir. 2006)) (internal quotation

marks omitted).

In order to sustain convictions under Section 242,

sufficient evidence must have been presented for a reasonable

trier of fact to have found beyond a reasonable doubt that Clark:

(1) acted under color of law; (2) deprived Toland and Coleman

of a right secured or protected by the Constitution or laws of

the United States; (3) acted willfully; and (4) that the offense

resulted in bodily injury. See 18 U.S.C. § 242; see also United

States v. Lanier, 520 U.S. 259, 264 (1997). Clark does not

challenge proof that he was acting under color of law or that

19

Coleman suffered bodily injury and so we do not address those

issues.

1.

We first review Clark’s contention that there was

insufficient evidence to establish that he used excessive force

during Toland’s and Coleman’s arrests. We affirm the

District Court’s holding that sufficient evidence was presented

to the jury to reasonably conclude that Clark engaged in

unconstitutional excessive force against both Toland and

Coleman.

When reviewing a claim that an officer used excessive

force in violation of the Fourth Amendment, we apply the

objective reasonableness standard. See Graham v. Connor,

490 U.S. 386, 388, 394 (1989). We pay careful attention to

“the severity of the crime at issue, whether the suspect pose[d]

an immediate threat to the safety of the officers or others, and

whether [the suspect] [wa]s actively resisting arrest or

attempting to evade arrest by flight.” Id. at 396. We ask

whether a reasonable officer on the scene would have applied

the same amount of force under the circumstances, without

factoring in what could have happened in hindsight since

“police officers are often forced to make split-second

judgments—in circumstances that are tense, uncertain, and

rapidly evolving.” Id. at 397. All of these factors support the

jury’s verdict.

First, the evidence presented was exceedingly scant of

facts that Clark’s actions were objectively reasonable in light

of the circumstances. See id. at 396. There were no, if any,

facts that Clark was responding to a crime that had been

committed in either incident. In the incident with Toland,

Clark rode his motorcycle onto the sidewalk heading straight

20

for Toland and his group and stopped his motorcycle within a

very short distance from the front of them. That action could

have been seen by a reasonable trier of fact as provocation since

a reasonable person would be alarmed or frightened at a

motorcycle driving straight at them on the sidewalk, and

unnecessary since Toland and his group were not suspected of

committing a crime. See A. 500 (government witness

testifying that when Clark rode his motorcycle “up on [Toland

and his group]” it was inconsistent with MPD policies since

that action would not “likely . . . achieve voluntary

compliance” with an officer’s commands).

Further, in the incident with Coleman, the BWC footage

clearly shows that no crime was being committed, and in fact

shows that Coleman was requesting to file a complaint against

Clark after Clark prohibited Coleman from using the restroom

in the McDonald’s. See Stephens v. DeGiovanni, 852 F.3d

1298, 1308, 1321–24 (11th Cir. 2017) (affirming a finding that

an officer used excessive force when the evidence showed that

the victim was not committing a crime and instead requested to

speak to the defendant-officer’s supervisor). It was only after

Clark told Coleman that he would be barred from the restaurant

and antagonized Coleman that the arguing between the two

ensued. And, even then, Clark still engaged in provocation

with Coleman by repeating “you want to try me, try me,” Ex.

B-1.1, 4:05–4:14, and stating “I know you got me. You better

have me, because imma’ have you. Okay, imma’ have you,” id.

at 4:28–4:36, which could have been interpreted as a threat.

Therefore, the evidence supported a finding by the jury that

Clark’s use of force was excessive under the circumstances.

See United States v. Harrison, 671 F.2d 1159, 1162 (8th Cir.

1982) (“a lack of provocation or need to use force would make

any use of force excessive.”).

21

Second, a reasonable trier of fact could have concluded

that neither Toland nor Coleman posed an immediate threat to

the safety of Clark or others. See Graham, 490 U.S. at 396.

For similar reasons as stated above, the evidence supports a

finding that Toland posed no immediate threat to Clark, and

that Clark conversely could have posed more of a threat to

Toland since he drove his motorcycle straight up to Toland

while Toland stood on the sidewalk. See A. 503 (government

witness testifying “[t]hey [were] not presenting any type of

aggressive posture” such as “clenching their fi[sts]” or

presenting “any type of defensive stance.”). Additionally, as

to Coleman, there was no immediate threat to Clark or others

in the McDonald’s restaurant as Coleman only argued with

Clark and used expletives but did not threaten Clark or anyone

else in the restaurant. To the contrary, a jury could have

reasonably concluded that Clark was taunting Coleman as

described supra.

Third, even though there was little to no evidence

presented that Clark was responding to a crime that had been

committed or an immediate threat, see A. 1237, in both

instances, Clark lunged forward and wrapped his hands around

the necks of Toland and Coleman while pushing each

individual back more than 30 feet and pinning them against a

car and a wall, respectively. Startled, both individuals either

yelled for Clark to get away from them or exclaimed that they

could not breathe. In Toland’s case, there was evidence

introduced that Toland “attempt[ed] to defend himself” by

“grabbing at [Clark], trying to get him to let go.” A. 506. A

reasonable jury could have concluded that this was not

evidence that Toland was trying to evade arrest, but was

attempting to defend himself from being in a neck restraint. In

Coleman’s case, he held his hands out on either side of him in

an attempt to show Clark that he was not resisting arrest. This

evidence, therefore, does not tend to show that Toland or

22

Coleman were actively resisting arrest or attempting to evade

arrest by flight before Clark performed neck restraints on both

individuals. See Graham, 490 U.S. at 396.

Fourth, Clark was explicitly warned by his captain that it

“appeared” that Clark used “a neck restraint” on Toland and so

“MPD’s Internal Affairs Division had been notified about the

use of force.” A. 1239. Despite that warning, Clark engaged

in similar behavior just five days later against Coleman. Id.

A reasonable trier of fact could have concluded that this tended

to show that, at least as it related to Coleman, Clark knew the

amount of force he used was excessive under the

circumstances.

Notwithstanding all of the clear evidence showing that

neck restraints were prohibited, see United States v. Brown,

934 F.3d 1278, 1296 (11th Cir. 2019) (explaining that a police

department’s standards on the use of force do not substitute the

constitutional use of force standard—“even when the policies

attempt to mirror the constitutional reasonableness standard”),

Clark also contends that his use of force was not excessive and

that he could have used more force, such as his ASP-baton or

pepper spray, if he so chose when arresting Toland and

Coleman.

We disagree. The jury heard abundant evidence to

reasonably conclude that Clark used more force than was

necessary under the circumstances since neither Toland or

Coleman put Clark in a life-or-death situation. 7 Clark

7

Moreover, the District Court properly instructed the jury that they

could consider circumstances related to Clark’s use of force against

Toland and Coleman such as: (1) “[t]he relationship between the

need for the use of force and the amount of force used;” (2) “[a]ny

effort made by the officer to temper or to limit the amount of force

used;” (3) “[t]he severity of the security problem at issue, if any;” (4)

23

received instruction that MPD officers are required to “use the

minimum amount of force that the objectively reasonable

officer would use in light of the circumstances to effectively

bring an incident or person under control[.]” Gov’t Ex. C-7 at

2. Further, when using force, Clark was trained that he was

obligated to “continuously reassess the perceived threat in

order to select the reasonable use of force response, or one that

is proportional to the threat faced by him[.]” Id.

Clark contends that “the Government failed to provide

sufficient evidence of a constitutional violation based on

national standards,” since it only focused on MPD policies.

Appellant Br. 35. This argument does not get Clark very far

because: (1) MPD policies reflect constitutional standards 8;

(2) the government only needed to provide sufficient evidence

that Clark used more force than was necessary under the

circumstances regardless of what MPD policies provided; and

(3) the District Court specifically instructed the jury that “[a]

law enforcement officer’s violation of a police department’s

policies on the use of force would not by itself establish that his

actions amounted to unreasonable force.” A. 1021–22.

Therefore, the Graham factors, and other evidence

presented to the jury, weigh against Clark and support the

“[t]he threat, if any, reasonably perceived by the officer to the safety

of the officer or any other person; and” (5) “[w]hether the individual

was actively resisting arrest or attempting to avoid arrest by flight.”

See A. 1051.

8

See Gov’t Ex. C-7 at 1–2 (providing that “[r]egulations pertaining

to the use of force by law enforcement officers” include what is

provided in “the Fourth Amendment of the United States

. . . Constitution . . . . [and] the objective reasonableness standard

established in Graham[.]” (cleaned up)).

24

jury’s conclusion that Clark used more force than was

necessary under the circumstances in both instances.

2.

We next address Clark’s contention that there was

insufficient evidence that his actions were willful, because

there was no evidence that he knew the neck restraints he used

on Toland and Coleman were unreasonable or impermissible

under MPD’s training and policies. We agree with the District

Court’s holding that the jury was presented with more than

sufficient evidence to reasonably conclude that Clark knew

that, under the circumstances he faced, neck restraints were

both unreasonable and prohibited under MPD’s policy.

The evidence at trial showed that MPD prohibited the use

of neck restraints like the trachea hold and carotid artery hold

that Clark used. The government introduced one such order

that Clark would have received defining a trachea hold and

carotid artery hold and stating that “[t]he use of neck restraints

of any kind, including but not limited to, the use of ‘trachea

holds’ and ‘carotid artery holds’ are not authorized use of force

options and are prohibited.” Gov’t Ex. C7 at 10–11

(“Whenever possible, avoid tactics that may impede a subject’s

ability to breathe, result in chest or throat compressions, or

airway blockage.”). Additionally, the order provided that

“[i]n the event that a[n officer] employs a neck restraint or

chokehold of any kind, [they] shall request emergency medical

services immediately.” Id. at 11.

The undisputed evidence showed that Clark was provided

“an MPD-issued cell phone that had the capability of receiving

emails [which] include[d] revised MPD general orders.” A.

1238 (quoting Trial Tr. 1687). The jury also heard testimony

that MPD officers have an obligation to familiarize themselves

25

with general orders, special orders, circulars, and standard

operating procedures and comply with each. A. 1238 (quoting

Trial Tr. 359–60). This is an ongoing duty of MPD officers as

their policies and training are “relatively frequently” updated.

Trial Tr. 360. Officers also attend “in-service training” at the

police academy to stay abreast of “policies and procedures that

were added or changed throughout the year.” A. 1238

(quoting Trial Tr. 749).

In addition to the policies shown to the jury, several MPD

officers testified regarding MPD’s policy of prohibiting neck

restraints, or allowance to use neck restraints only in life-or-

death circumstances. For example, Officer George Baldwin

testified that officers are only allowed to use neck restraints in

“life [or] death” circumstances. A. 232. Additionally,

Internal Affairs Division (“IAD”) Agent George Singletary

testified that officers are told neck restraints are unlawful and

prohibited. A. 736. Expert witness Trevor Hewick testified

that trachea holds were never allowed. A. 968. The District

Court recounted that Officer Laini Evans testified “that it was

restricted to do any type of neck restraints,” A. 1239, and

Sergeant David Chumbley likewise testified that “‘neck

restraints, such as trachea holds and carotid artery holds’ were

not authorized.” A. 1240 (quoting Trial Tr. 652–54).

Lieutenant Matthew Romeo testified to the same. Id. The

evidence that Clark was informed of MPD policy and that other

officers were aware of MPD policy was sufficient to prove that

Clark knew that he was violating MPD policy, or that he

recklessly disregarded MPD policy, when he applied the

prohibited throat and neck holds. The evidence that the

victims had not committed a crime, posed no threat to him, and

were not attempting to resist or evade arrest, see supra section

II(B)(1), also undermines any claim by Clark that intended to

act reasonably by literally going straight for the jugular when

seizing the victims. In sum, the jury heard sufficient evidence

26

from which it could reasonably conclude that Clark knew that

he was using more force than was necessary under the

circumstances since neither Toland nor Coleman put Clark or

others in a life-or-death situation.

We thus affirm the District Court’s holding that the jury

was presented with sufficient evidence to reasonably conclude

that Clark acted willfully and with excessive force.

3.

Clark finally contends that there was insufficient evidence

that Toland suffered bodily injury as a result of Clark’s

excessive force. Appellant Br. 43. Clark contends that the

government only presented evidence Toland suffered an injury

to the leg, and that Clark could not have injured Toland’s leg

from the seizure or his motorcycle.

The District Court instructed the jury, with agreement

from both parties, that “bodily injury” under Section 242 meant

“a cut, abrasion, bruise, burn, or disfigurement; physical pain;

illness; impairment of the function of a bodily member, organ,

or mental faculty; or any other injury to the body, no matter

how temporary.” A. 1240.

First, Clark argues that the evidence does not support a

finding that Toland was injured in his leg from being hit by

Clark’s motorcycle notwithstanding the fact that Toland

reported that he was hit in the leg by Clark’s motorcycle.

Appellant Br. 44–45. The District Court agreed with Clark

that this theory of injury as it related to Toland was

“implausible” because the BWC footage does not show that

Clark hit Toland “in the back of his right calf” with his

motorcycle, and the government “did not endorse Toland’s

27

explanation of how he was injured in the leg.” A. 1241

(emphasis in original).

However, the government presented another theory of

injury—“that a reasonable juror could conclude that Clark

caused Toland to suffer bodily injury to his neck.” Id. The

District Court held that the jury was presented with sufficient

evidence to support this alternative theory of injury and

therefore could have convicted Clark based on a bodily injury

to Toland’s neck. The jury was presented with evidence that

Toland was distressed while attempting to unleash Clark’s

hands from his neck. Id. at 1242. Toland may have been

distressed because, as the jury heard, pressure applied to the

trachea can “‘cause an individual to stop breathing and start

panicking because they feel like they cannot breathe.’” Id.

(quoting Trial Tr. 1249–50). We agree that this evidence was

sufficient to prove Toland suffered pain to his neck and

impairment to his breathing, which constitutes bodily injury.

See Griffin v. United States, 502 U.S. 46, 59–60 (1991) (We do

not “negate a verdict” on the mere chance “that the jury

convicted on a ground that was not supported by adequate

evidence when there existed alternative grounds for which the

evidence was sufficient.”) (citing United States v. Townsend,

924 F.2d 1385, 1414 (7th Cir. 1991)).

***

We therefore hold that Clark’s challenge to the sufficiency

of the evidence fails. It was a civil rights violation for Clark,

acting under color of law, to have deprived Toland and

Coleman of their right to be free from being unreasonably

seized by way of prohibited neck restraints when that force was

unnecessary and unreasonable under the circumstances.

28

C.

Clark next argues that the government imposed criminal

liability outside of the conduct charged in the indictment by

way of an amendment or variance.

An indictment must contain enough detail for a defendant

to understand the charges against him and be protected against

re-prosecution. See Gaither v. United States, 413 F.2d 1061,

1066, 1072 (D.C. Cir. 1969). Typically, when there has been

an amendment of an indictment “it is clear that the defendant

[wa]s tried on a charge different from that approved by the

grand jury.” Id. at 1072; see also United States v. Lawton, 995

F.2d 290, 294 (D.C. Cir. 1993) (“For more than a century, it

has been settled that ‘after an indictment has been returned its

charges may not be broadened through amendment except by

the grand jury itself.’”) (quoting Stirone v. United States, 361

U.S. 212, 215–16 (1960)). If we determine that this has

occurred, we will reverse the verdict “even absent a showing

of prejudice.” United States v. Lorenzana-Cordon, 949 F.3d

1, 4–5 (D.C. Cir. 2020). A variance, on the other hand, is

when the charging terms of the indictment are the same, “‘but

the evidence offered at trial proves facts materially different

from those alleged in the indictment.’” Id. at 4 (quoting

Gaither, 413 F.2d at 1071). “Variances warrant reversal only

when ‘the error had a substantial and injurious effect or

influence in determining the jury’s verdict.’” Id. (quoting

United States v. Baugham, 449 F.3d 167, 174 (D.C. Cir. 2006)

(internal quotations omitted) and Kotteakos v. United States,

328 U.S. 750, 776 (1946)).

Clark and the government dispute whether he preserved

the amendment and variance objections below, and the District

Court reviewed Clark’s argument for plain error when ruling

on his motion for a new trial. A. 1214. We find that no

29

amendment or variance of the indictment occurred. We thus

need not decide whether Clark’s objection sufficed to preserve

his argument before our Court.

The indictment stated that “[o]n or about July 13, 2018,”

Clark, while acting as a MPD officer, “willfully deprived

[Toland] of the right . . . to be free from the use of unreasonable

force by a law enforcement officer . . . . [when] Clark assaulted

[Toland] and used a prohibited trachea hold without legal

justification.” A. 20. As explained supra at 7–8, the

indictment alleged the same as to Coleman, but also alleged

that Clark used a prohibited carotid artery hold in addition to

the prohibited trachea hold during Coleman’s arrest. A. 21.

The jury instructions included this language from the

indictment in its explanation of the nature of the offenses. A.

1048. This “fit between the jury instructions and the

indictment” dooms Clark’s amendment claim. See United

States v. Saffarinia, 101 F.4th 933, 941 (D.C. Cir. 2024), cert.

denied, 145 S. Ct. 776 (2024).

Because the jury was specifically told that the nature of the

offense was the same as the actus resus described in the

indictment, Clark’s variance argument can only succeed if he

can show that the jury ignored these instructions and convicted

him based on some other acts. “Attention to the fit between

the jury instructions and the indictment is particularly

important as ‘jury instructions requiring the jury to find the

conduct charged in the indictment before it may convict’

provide the court with assurance that ‘the jury convicted the

defendant based solely on the conduct actually charged in the

indictment.’” Saffarinia, 101 F.4th at 941–42 (quoting United

States v. Ward, 747 F.3d 1184, 1191 (9th Cir. 2014)). Clark

contends that by introducing evidence of Clark’s actions before

the moment that he had his hands wrapped around Toland’s and

Coleman’s throats—i.e. when he rode his motorcycle directly

30

at Toland and his friends on the sidewalk, or argued with

Coleman after barring him from the McDonald’s—the jury

could have convicted him based on those actions rather than

the illegal choke holds.

Clark’s cursorily made argument does not persuade us that

the jury ignored its instructions and instead convicted Clark

based upon relevant evidence of the surrounding circumstances

of the offense. As we pointed out earlier, see supra page 19,

in order to determine whether an officer’s force was objectively

reasonable, a fact-finder may assess “the severity of the crime

at issue [and] whether the suspect pose[d] an immediate threat

to the safety of the officers or others” by viewing circumstances

prior to the seizure. See Graham, 490 U.S. at 396. The video

footage evidence leading up to the point that Clark had his

hands around the victims’ throats directly related to whether

there was a crime or threat occurring that spurred Clark’s

actions, and whether Clark needed to use the amount of force

that he did to protect himself or others. Moreover, the

evidence leading up to the seizures supported the government’s

theory as to Clark’s mens rea.

We agree with the District Court that “[b]y introducing

evidence about the events leading up to the physical

confrontations, the government was not attempting to prove a

separate Fourth Amendment violation preceding the physical

confrontations.” A. 1214. No amendment or variance

occurred here. See Berger v. United States, 295 U.S. 78, 83

(1935) (no material variance where the allegations in the

indictment correspond with the proof at trial and no showing

that the defendant was misled about the basis of his

conviction).

31

D.

Clark next challenges answers the District Court gave the

jury in response to two of their questions.

During day one of jury deliberations, the jury sent a note

asking the District Court five questions. A. 1023. As

relevant to Clark’s contention, two of the jury’s questions were

the following:

1. What is the legal definition of unreasonable seizure, in

the second element on page 26 of jury instructions.

2. This question is in regards to [the] fourth element of the

offense resulting in bodily injury. Is it inclusive of any

injury or just specific to injury to body parts listed [in]

the counts.

Id.

The District Court gave the following responses to the

jury:

[F]or purposes of the Fourth Amendment, a

seizure occurs when physical force is used to

restrain movement or when a person submits to

an officer’s show of authority. A show of

authority sufficient to constitute a seizure

occurs where the police conduct would have

communicated to a reasonable person that he

was not at liberty to ignore the police presence

and go about his business or put another way,

where a reasonable person would not have

believed he was free to leave. That is a

definition of a seizure.

32

And for purposes of the question of

“unreasonableness,” I would refer you back to

the instructions I’ve already provided you,

where those instructions discuss reasonableness

or unreasonableness with respect to use of

force.9

The fourth question in the note- . . . . is in

regards to the fourth element of the offense

resulting in bodily injury. . . . Bodily injury

must result from the willful use of unreasonable

force but need not be limited to the specific

body parts identified in my description in the

substantive offenses introductory remarks. . . .

9

The District Court’s instructions as to reasonableness or

unreasonableness with respect to use of force were as follows:

A law enforcement officer is justified in the use of

any force, which he reasonably believes to be

necessary to affect an arrest or hold someone in

custody, and any force which he reasonably believes

to be necessary to defend himself or another person

from bodily harm. You must judge the

reasonableness of a particular use of force from the

perspective of a reasonable officer on the scene at

the moment the force was used and not with the

20/20 vision of hindsight. The test of reasonableness

under the Fourth Amendment is not capable of

precise definition or mechanical application. Its

proper application requires careful attention to the

facts and circumstances of each particular case and

the totality of the circumstances.

A. 1020–21.

33

A. 1043–44. The District Court’s “substantive offenses

introductory remarks” stated, in relevant part, “Mr. Clark used

his arm and hand to apply pressure against Mr. Toland’s

trachea, his windpipe, and the front of his neck.” A. 1048.

And, that “Mr. Clark used his arm and hand to apply pressure

against Mr. Coleman’s trachea, his windpipe, and the front of

his neck, and also that he used his arm to apply pressure and

force to Mr. Coleman’s carotid artery, jugular vein, and the

sides of his neck.” Id.

1.

“A trial court has considerable discretion in determining

how to respond, if at all, to a jury’s request for clarification of

a jury instruction.” United States v. Laing, 889 F.2d 281, 290

(D.C. Cir. 1989); see also United States v. Wharton, 433 F.2d

451, 454 n.9 (D.C. Cir. 1970) (“The feasibility and scope of

any reinstruction of the jury is a matter residing within the

discretion of the trial judge.”). “Where the jury explicitly

reveals its confusion on an issue, however, the court should

reinstruct the jury to clear away the confusion.” Laing, 889

F.2d at 290; see also Bollenbach v. United States, 326 U.S. 607,

612–13, (1946) (“When a jury makes explicit its difficulties a

trial judge should clear them away with concrete accuracy.”);

United States v. Bolden, 514 F.2d 1301, 1309 (D.C. Cir. 1975)

(same). “A court may go beyond the limits of the jury’s

request for clarification to avoid giving a misleading or one-

sided answer.” Laing, 889 F.2d at 290. “Moreover, the court

must consider the propriety of the supplemental instruction in

light of the other instructions previously given.” Id.; see also

Vauss v. United States, 370 F.2d 250, 252 (D.C. Cir. 1966)

(“We must read the dubious supplemental instruction along

with the principal instruction and consider the matter as a

whole[.]”).

34

Our standard of review in determining whether the District

Court properly responded to the jury’s questions is deferential

to the District Court. “When reviewing a challenge to jury

instructions, ‘[t]he pertinent question is whether, taken as a

whole, the instructions accurately state the governing law and

provide the jury with sufficient understanding of those issues

and applicable standards.’” Vega, 826 F.3d at 524 (quoting

Wilson, 605 F.3d at 1018). “While the propriety of a

submitted jury instruction is reviewed de novo, ‘the choice of

language to be used in a particular instruction...is reviewed

only for abuse of discretion.’” Id. (quoting Joy, 999 F.2d at

556); see also Wharton, 433 F.2d at 454 n.9.

Clark contends that the District Court erred in instructing

the jury as to the definition of “seizure” and should have given

a definition found in the Supreme Court’s decision in Torres v.

Madrid, 592 U.S. 306, 325 (2021) (“[T]he application of

physical force to the body of a person with intent to restrain is

a seizure even if the person does not submit and is not

subdued.”). Clark asserts that the definition given by the

District Court allowed the jury to consider Clark’s conduct

leading up to the seizures instead of focusing on the seizures

themselves, similar to his contention that the government

amended or varied from the indictment in presenting its case

discussed supra pages 28–31. Appellant Br. 55.

We find no abuse of discretion here. Clark identifies no

legal error in the definition of “seizure” given by the District

Court. While Clark prefers the particular articulation from

Torres, that case involved defining whether a seizure occurred

“when an officer shoots someone who temporarily eludes

capture after the shooting,” 592 U.S. at 309, circumstances far

different from the present case. Clark’s contention that the

supplemental instruction allowed the jury to convict him based

on conduct leading up to the seizures is unpersuasive for the

35

same reasons we rejected his amendment and variance

arguments, particularly since the supplemental “seizure”

instruction directed the jury to focus on “reasonableness or

unreasonableness with respect to use of force” and referred to

force used on the neck and throat area.

2.

Clark next argues that the District Court erred in answering

whether bodily injury was inclusive of any injury or only

specific to injuries to body parts listed in the indictment.

However, Clark has once again raised an issue to which he

failed to object to below. Specifically, when the District Court

asked Clark whether he was “okay with” the District Court

answering the jury’s question by explaining that the bodily

injury “need not be limited to the specific body parts listed in

the substantive offenses introductory remarks,” Clark

responded “I don’t think I have a choice. I think that’s the law.”

A. 1033. Therefore, we review the District Court’s answer for

plain error. See United States v. Clarke, 24 F.3d 257, 266

(D.C. Cir. 1994).

We find no plain error. The District Court’s answer

explained that the bodily injury must have resulted from the

willful use of unreasonable force by Clark. Therefore, as long

as the jury concluded that the bodily injury was due to Clark’s

use of excessive force—i.e. the use of prohibited neck

restraints in a circumstance where life-or-death force was

unnecessary—it could find that the government proved the

bodily injury element under Section 242 beyond a reasonable

doubt. Further, as discussed immediately above, the jury was

instructed to focus its attention on the reasonableness of the

force that Clark used in the neck and throat area.

36

E.

Lastly, Clark contends that the District Court erred in

declining to allow him to admit statements of patrons who were

inside the McDonald’s during Clark’s incident with Coleman,

as well as Coleman’s arrest and mental-health records.

1.

We review the District Court’s evidentiary decisions for

an abuse of discretion. United States v. Ramsey, 165 F.3d 980,

983 n.3 (D.C. Cir. 1999); see also Clarke, 24 F.3d at 267.

After Clark seized Coleman, other officers went back

inside of the McDonald’s to interview patrons about their

eyewitness accounts of the incident between Clark and

Coleman. Clark now loosely contends that the District Court

erred in not allowing statements made by patrons to come into

evidence through the present sense impression hearsay

exception.

Federal Rule of Evidence 803(1) defines a present sense

impression as “[a] statement describing or explaining an event

or condition, made while or immediately after the declarant

perceived it.” The “core concept” of this exception is that the

hearsay statement comes in because it is “so closely related to

the event—either because it is contemporaneous with the event

or because the event spontaneously prompts the statement—

that the statement is likely to be trustworthy.” EDWARD J.

IMWINKELRIED ET AL. 1 COURTROOM CRIMINAL EVIDENCE

§ 1202 (2025). Moreover, a “declarant’s statement about an

event is exceptionally admissible if the declarant made the

statement while observing the event.” Id.; see also Navarette

v. California, 572 U.S. 393, 400 (2014) (“[S]ubstantial

contemporaneity of [an] event and statement negate the

37

likelihood of deliberate or conscious misrepresentation.”).

We have previously upheld the exclusion of statements made

fifteen minutes or more after an event as too far removed to

qualify as a present sense impression. Hilyer v. Howat

Concreate Co., 578 F.2d 422, 426 n.7 (D.C. Cir. 1978).

Although Clark loosely contends that the District Court

erred in not allowing these patron statements to be admitted

into evidence, he does not tell us why these statements would

even qualify as present sense impressions. Clark’s opening

brief is bare of any facts regarding how much time passed

between when the patrons viewed the incident between Clark

and Coleman and when they gave their statements to officers,

notwithstanding his burden to demonstrate admissibility. See

United States v. Alexander, 331 F.3d 116, 122 (D.C. Cir. 2003)

(explaining that for a statement to meet a hearsay exception,

“the proponent of the exception must establish” it); see also

Twin Rivers Paper Co. v. SEC, 934 F.3d 607, 615 (D.C. Cir.

2019) (explaining that arguments are forfeited if they were

raised in an “obscure” way in the “opening brief and” only later

raised in a more concrete way in the reply brief).

It appears that some of the statements were made

approximately forty-five minutes after the incident, which fails

the contemporaneous standard. See Hilyer, 578 F.2d at 426

n.7. Other statements, while made sooner after the event,

were nonetheless made after the witnesses had an opportunity

to reflect upon what happened, in response to questioning, and

after the witnesses likely spoke with each other inside the store

and overheard other accounts and descriptions. All of those

factors undermine the spontaneity and reliability of those

statements. Thus, we find no abuse of discretion by the

District Court in excluding these various statements as present

sense impressions. See United States v. Woods, 301 F.3d 556,

38

562 (7th Cir. 2002); Schindler v. Seiler, 474 F.3d 1008, 1010

(7th Cir. 2007).

2.

Before concluding, we address Clark’s final contention—

that the District Court erred in not allowing Clark to introduce

evidence related to Coleman’s other arrests as well as his

mental health record.

Because the government had not confirmed whether

Coleman was going to testify, the District Court withheld a

decision on whether Clark could cross-examine Coleman with

his arrest and mental health records until the issue became ripe.

Then, the government chose not to call Coleman as a witness,

and the trial proceeded without the District Court having to rule

on whether Clark could use the records to cross-examine

Coleman.

Clark now asserts that the district court abused its

discretion in “precluding [him] from presenting all of this

evidence at trial,” Appellant Br. 62, even though he never

sought to admit this evidence outside of the context of cross-

examination. This issue is forfeited.

We also hold that the District Court did not abuse its

discretion in prohibiting Clark from using video evidence of

Coleman’s other arrests for the purpose of eliciting testimony

from the government’s expert witness on the reasonableness of

force exhibited in those arrests compared to Clark’s seizure of

Coleman. The amount of force used by other officers when

seizing Coleman at other times and under completely different

circumstances has little, if any, relevance to whether Clark used

unreasonable force during this particular arrest of Coleman.

The District Court did not err in concluding that this evidence

39

would have had “little probative value as impeachment

evidence directed to the credibility of the government’s

expert[.]” A. 1218. Instead, that evidence could have

confused the jury by having it weigh the use of force in arrests

not at issue.

We therefore affirm the District Court’s evidentiary

rulings.

III.

For the foregoing reasons, we affirm the District Court’s

denial of Clark’s motion for acquittal, denial of the motion for

a new trial, and affirm Clark’s convictions.

So ordered.