United States of America v. Chance Barrow

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 9, 2024 Decided July 19, 2024
No. 21-3081
UNITED STATES OF AMERICA ,
APPELLEE
v.
CHANCE BARROW,
APPELLANT
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, M ILLETT and CHILDS , Circuit
Judges.

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Opinion for the Court filed by Circuit Judge CHILDS .
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.

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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

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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.

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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

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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.
1 “De novo review means that the reviewing court ‘do[es] not defer
to the lower court’s ruling but freely consider[s] the matter anew, as
if no decision had been rendered below.’” Dawson v. Marshall, 561
F.3d 930, 933 (9th Cir. 2009) (citation omitted) (emphasis added).
See also Burke v. Gold, 286 F.3d 513, 526 (D.C. Cir. 2002)
(Randolph, J., dissenting) (“De novo review means that the district
court’s opinion (if it rendered one) drops out.”).
2 “Plain error review means that we will reverse only if there was an
error, that was plain, that affected the defendant’s substantial rights,
and that affected the fairness, integrity, or public reputation of the
judicial proceedings.” United States v. Presbitero, 569 F.3d 691, 698
(7th Cir. 2009) (citation omitted).

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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 (citing J.A. 2492–J.A. 2493).
Generally, if a defendant raises specific objections to the
sufficiency of the evidence at trial, his claim is subject to plain
error review if he raises a different objection on appeal. See
United States v. Spinner, 152 F.3d 950, 955 (D.C. Cir. 1998)
(“However, we review an appellant’s sufficiency-of-the-
evidence challenge for plain error when a motion for judgment
of acquittal was based on specific (and different) grounds.”
(citing United States v. Sayan, 968 F.2d 55, 62 (D.C. Cir.
1992))); Bostick, 791 F.3d at 142 (“Because Johnson did not
raise that argument in the District Court, our review is for plain
error.”). However, even if we find plain error applicable, the
“fail[ure] to present any evidence on an essential element of a
crime . . . would warrant reversal under either [the sufficiency
or plain error] standard[s]].” Spinner, 152 F.3d at 956; see id.
(“express[ing] uncertainty as to how a plain error review of a
sufficiency-of-the-evidence argument might differ from the
standard of review we apply when the argument has been
preserved” because the standard for preserved sufficiency
standards is already “highly differential”) (quotations omitted).

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We need not decide whether plain error or de novo review
applies to Barrow’s record-based sufficiency challenge, since
our analysis would be the same under either standard.
B.
As to the merits, Barrow asserts that the government’s
evidence was insufficient to support wire fraud convictions
because it did not show a scheme “to defraud TIGTA of
‘money or property’ as those terms are used in § 1343.”
Appellant’s Br. 39. “When reviewing a conviction for
sufficiency of the evidence, ‘the relevant question is whether,
after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’”
United States v. Gaskins, 690 F.3d 569, 577 (D.C. Cir. 2012)
(citation omitted). “In making that determination, ‘the
prosecution’s evidence is to be viewed in the light most
favorable to the government, drawing no distinction between
direct and circumstantial evidence, and giving full play to the
right of the jury to determine credibility, weigh the evidence
and draw justifiable inferences of fact.’” Id. (citation omitted).
The wire fraud statute makes it a criminal offense for a
person to “devise[] or intend[] to devise any scheme or artifice
to defraud, or [to] obtain[] money or property by means of false
or fraudulent pretenses, representations, or promises, transmit[]
or cause[] to be transmitted by means of wire . . .
communication in interstate or foreign commerce.” 18 U.S.C.
§ 1343. “The elements of wire fraud are (1) formation of a
‘scheme to defraud,’ [to get money or property,] and (2) use of
interstate wire communication to further that scheme.” United
States v. Lemire, 720 F.2d 1327, 1334–35 (D.C. Cir. 1983).
For Barrow’s wire fraud offenses, the government charged that
Barrow devised “a scheme to defraud” for the “purpose” of

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obtaining “paid employment with TIGTA” using “materially
false and fraudulent representations regarding his employment
history.” J.A. 33. We find that the evidence was insufficient
to allow the jury to conclude that Barrow was guilty of wire
fraud as charged beyond a reasonable doubt.
Recently, in United States v. Guertin, 67 F.4th 445 (D.C.
Cir. 2023), this court defined how a scheme to defraud money
or property is demonstrated for an employee trying to maintain
his employment and salary.3 Specifically, the court held that
3 Guertin was decided May 16, 2023, and Barrow was
convicted June 24, 2021. This gap in time is of no effect
because the Supreme Court and the D.C. Circuit have
recognized the general rule that an appellate court must apply
the law in effect at the time it renders its decision. Thorpe v.
Hous. Auth. of Durham, 393 U.S. 268, 281 (1969); Am.
Freedom Def. Initiative v. Wash. Metro. Area Transit Auth.,
901 F.3d 356, 363 (D.C. Cir. 2018). “[J]udicial decisions
presumptively apply retroactively to all cases still open on
direct review and all events, regardless of whether such events
predate or postdate the new rule.” Child.’s Hosp. Ass’n of Tex.
v. Azar, 507 F. Supp. 3d 249, 253 (D.D.C. 2020) (citing Harper
v. Va. Dep’t of Tax’n, 509 U.S. 86, 97 (1993)). This
longstanding approach ensures that judgments reflect the
current legal standards, even if it means setting aside a ruling
that was correct at the time it was rendered. Henderson v.
United States, 568 U.S. 266, 271 (2013) (citing United States
v. Schooner Peggy, 5 U.S. 103 (1801)). Moreover, we do not
believe our consideration of Guertin runs afoul of United States
v. Reynoso, 38 F.4th 1083 (D.C. Cir. 2022), where the court
held that “a defendant cannot make out a sufficiency challenge
as to offense elements that the government had no requirement
to prove at trial under then-prevailing law.” Id. at 1091. Unlike
in Reynoso—which addressed a new knowledge-of-felon status

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“[i]f an employee’s untruths do not deprive the employer of the
benefit of its bargain, the employer is not meaningfully
defrauded of ‘money or property’ when it pays the employee
his . . . salary.” Id. at 451. Further, the court drew the
distinction that “when the employer receives the benefit of its
bargain, the employee’s lie merely deprives the employer of
honesty . . . which cannot serve as the predicate for wire fraud.”
Id.
element decreed by the Supreme Court in Rehaif v. United
States, 588 U.S. 225 (2019) when issued on the same day as
Reynoso’s sentencing—Guertin does not recognize or create
new elements the government needs to prove for a wire fraud
conviction. Instead, in Guertin, our court identified already
existing aspects of wire fraud previously elaborated on by the
Supreme Court and other appellate courts. See McNally v.
United States, 483 U.S. 350, 360 (1987); Skilling v. United
States, 561 U.S. 358, 400 (2010); Kelly v. United States, 590
U.S. 391, 398 (2020) (object of scheme must be money or
property); United States v. Takhalov, 827 F.3d 1307, 1313
(11th Cir. 2016) (A scheme to defraud requires a lie “about the
nature of the bargain itself.”); United States v. Shellef, 507 F.3d
82, 108 (2d Cir. 2007) (A scheme that only causes a victim “to
enter into transactions they would otherwise avoid” is not wire
fraud). We further note that any concerns regarding Reynoso’s
applicability or whether Barrow’s Guertin argument should
have been formulated as a claim of trial error rather than
sufficiency of the evidence challenge are alleviated by the
government’s failure to either cite to Reynoso or raise related
concerns regarding Guertin in its briefing, thus forfeiting the
arguments. Al-Tamimi v. Adelson, 916 F.3d 1, 6 (D.C. Cir.
2019) (“A party forfeits an argument by failing to raise it in his
opening brief.” (citation omitted)).

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In Guertin, the government brought wire fraud charges
against a former Foreign Service Officer in the State
Department who “adjudicated Chinese visa applications to the
United States.” Id. at 447. Guertin’s indictment charged him
with violating the wire fraud statute by failing “to disclose ‘a
sexual relationship with a foreign national whose visa
application he had adjudicated; certain financial problems
arising out of gambling activity; and an undisclosed loan
agreement with two Chinese nationals collateralized by
Guertin’s home.’” Id. The government alleged that these lies
deprived it of the benefit of the bargain because suitability for
security clearance was a condition of the job. Id. at 452.
This court held that the lies alleged were insufficient to
sustain a wire fraud conviction. Id. The court observed that it
is “not the law” “that an employee’s breach of any important
condition of employment that is facilitated by wire fraud is
tantamount to a ‘scheme’ to defraud the employer of ‘money
or property.’” Id. Thus, in Guertin, the government was
unable to satisfy the indictment’s purposes under the wire fraud
statute because there was neither a plausible allegation nor
evidence showing that the employer did not receive the benefit
of the bargain or was subject to a scheme to deprive it of money
or property. Id. Viewing wire fraud allegations in the
employment context through the lens of Guertin, if an
employee’s “untruths do not deprive the employer of the
benefit of the bargain,” paying a salary does not defraud the
employer. Id. at 451.
The wire fraud theory charged and proved against
Barrow—that his lies enabled him to receive salary payments
he otherwise would not have received—is materially identical
to that charged in Guertin. Compare Indictment, J.A. 33 ¶ 11
(“The purpose of the scheme was for [Barrow] to obtain paid
employment with TIGTA by making materially false and

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fraudulent representations regarding his employment history to
hide the circumstances of his resignation from Army-CID in
the midst of serious allegations of misconduct.”), with Guertin,
67 F.4th at 448 (“The princip[le] claim in the indictment is that
‘the purpose of [Guertin’s] scheme’ of untruths was to defraud
the State Department and ‘unlawfully enrich himself by
maintaining his State Department employment and salary
despite engaging in conduct that would jeopardize his
suitability for a security clearance and a position of trust as a
Foreign Service Officer.’”).
On appeal, the government for the first time asserts that
Barrow’s fraud deprived TIGTA of an honest criminal
investigator thereby depriving it of the benefit of the bargain.
To that end, the government highlights scattered pieces of
evidence that supposedly show that dishonesty from an
investigator would deprive it of the benefit of the employment
bargain.4 That, however, is not the case the government
indicted or tried. The district court, in fact, repeatedly
emphasized that Barrow’s “work performance is not at issue.”
J.A. 2538:3–9; see J.A. 2538:15–17 (government arguing that
Barrow’s job performance is “not relevant” because “[t]he
intent to defraud is getting the job that he would not otherwise
4 At trial, the government presented testimony from Chanda Jones,
TIGTA’s personnel security specialist, who testified that TIGTA
investigators are “held to a higher [standard of] integrity.” J.A. 2385.
Ray Park, an Army-CID special agent, testified that an investigator
under investigation for criminal conduct could negatively impact the
cases he is working on to include having them “thrown out in court.”
J.A. 1931–J.A. 1932. In addition, the government points out that
“Barrow’s Army-CID supervisors testified that, for this reason,
Barrow was removed from all active investigative work and
prohibited from even ‘touch[ing] any case files’ as soon as they
learned about the NCIS investigation.” Appellee’s Br. 23–24
(citation omitted).

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have gotten”); J.A. 2539:4–12 (court rejecting Barrow’s
“argument that doing a good job means that [Barrow] would
not have any intent to defraud” as speaking “to something
that’s not at issue,” since the relevant “intent to defraud”
involved intent to obtain a job Barrow would not have
otherwise obtained). The district court acknowledged, in any
event, evidence that Barrow performed his job well. See J.A.
949 (“[T]here is no evidence in this case that Mr. Barrow did
not intend to perform investigative services, and in fact, he had
a ‘successful’ rating on his performance review[.]”); J.A. 951
(“Defendant’s performance review indicates that Mr. Barrow
‘took the initiative’” by taking on various new tasks even when
assigned to administrative duties). None of the evidence,
instructions, or arguments focused on whether Barrow’s lies
deprived the government of the benefit of its employment
bargain by denying it of an officer with the desired level of
honesty now belatedly claimed. It is simply too late for the
government to try and repackage its prosecution now. The
Supreme Court has made clear that we may not “cherry-pick
facts presented to a jury charged on [an incorrect wire fraud]
theory and apply them to the elements of a different wire fraud
theory in the first instance.” Ciminelli v. United States, 596
U.S. 306, 316–17 (2023). To do as the government asks would
require this court “to assume not only the function of a court of
first view, but also of a jury” which is “not [its] role.” Id.; see
also McCormick v. United States, 500 U.S. 257, 270 n.8 (1991)
(“Appellate courts are not permitted to affirm convictions on
any theory they please simply because the facts necessary to
support the theory were presented to the jury.”).
For those reasons, we reject the government’s theory in
accordance with Guertin. We find that after viewing the
evidence in the light most favorable to the government, a
rational trier of fact could not conclude that TIGTA failed to
receive the benefit of its bargain with Barrow. Because Barrow

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did not defraud TIGTA of money or property, the evidence
presented was insufficient to support his conviction on two
counts of wire fraud. We vacate Barrow’s convictions for wire
fraud and remand to the district court with instructions to enter
a judgment of acquittal.5
C.
As to his concealment conviction, Barrow takes issue with
the district court’s evidentiary rulings, trial management
decisions, and instructions to the jury, alleging abuse of
discretion and contending that the district court’s errors
“undercut his attempts to establish reasonable doubt as to intent
and misled [the jury] concerning his duty to disclose.”
Appellant’s Br. 32.
18 U.S.C. § 1001(a)(1) criminalizes the falsification,
concealment, or covering up of a material fact from the
5 We are not suggesting by this finding that employers are without
recourse when an employee is found to be dishonest or to have lied
on an application. Employers can still discipline employees they find
to be dishonest, but that dishonesty does not mean they should also
be charged with a criminal offense when the government fails to
prove those lies caused actual money or property loss to the
government. In addition, given the facts of this case, we need not
here decide when, if ever, lies about job qualifications would go to
“the benefit of the core employment bargain.” Guertin, 67 F.4th at
452. If, for instance, an employer posts a job opening specifically
intended for veterans, an applicant who lied about veteran status
might be said to have deprived the employer of one important part of
what the employer was paying for—even if the applicant intends to
and does perform the job. But because the government indicted and
tried Barrow on a theory that is on all fours with that in Guertin, we
need not address other scenarios where the benefit sought by the
government might differ in form of character.

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government. The elements of a concealment of material fact
offense are:
(1) the defendant must make a statement, or
have a duty to disclose the information; (2) the
statement must be false, or there must be acts
amounting to concealment; (3) the statement or
concealed facts must be material; (4) the person
must make the statement or conceal the facts
knowingly and willfully; and (5) the statement
or concealed information must concern a matter
within the jurisdiction of a federal department
or agency.
United States v. Moore, 446 F.3d 671, 677 (7th Cir. 2006). In
Barrow’s indictment, the government asserted that Barrow
willfully concealed or failed to reveal his resignation from
Army-CID, how it occurred before his possible termination,
and the allegations of misconduct leading to the NCIS criminal
investigation in completing the TIGTA employment
application. We vacate and remand finding that the exclusion
of evidence rebutting the materiality of the facts allegedly
concealed by Barrow constitutes reversible error. See United
States v. Akers, 702 F.2d 1145, 1149 (D.C. Cir. 1983)
(reviewing the district court’s decision to exclude evidence for
abuse of discretion).
A district court’s evidentiary rulings are reviewed for
abuse of discretion. United States v. Whitmore, 359 F.3d 609,
615–16 (D.C. Cir. 2004). “The question is whether th[e]
evidence affected substantial rights, for ‘[a]ny error, defect,
irregularity, or variance that does not affect substantial rights
must be disregarded.’” United States v. Wilson, 605 F.3d 985,
1024 (D.C. Cir. 2010) (quoting Fed. R. Crim. P. 52(a)). “In
evaluating whether th[ere] was harmless error, we ask ‘what

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effect the error had or reasonably may be taken to have had
upon the jury’s decision.’” Id. (citation omitted).
“Specifically, we must determine whether ‘the error had
substantial and injurious effect or influence in determining the
jury’s verdict.’” Id. (citation omitted). “An error is harmless
if the guilty verdict was ‘surely unattributable to the error.’”
Id. (citation omitted).
The district court’s exclusion of the evidence rebutting the
materiality of the facts allegedly concealed constitutes
reversible error. As relevant here, the district court prohibited
Barrow from presenting testimony that he told the TIGTA
interview panel that he had left Army-CID.
Because the government had to show Barrow’s intent to
deceive the TIGTA, intent is a material issue for the jury to
decide. Barrow argues that because he was not allowed to
present his evidence, the district court undercut his ability to
rebut his intent to conceal material facts and establish
reasonable doubt with the jury. We agree. Testimony that
Barrow candidly informed TIGTA in his interview that he had
already left his prior government employment directly
undermined the government’s theory that Barrow meant for his
resume and various online answers to deceive the government
about his employment status. The government, in fact,
“acknowledges that the district court erred by excluding” this
testimony. Appellee Br. 35. The government nonetheless
argues this error was harmless because the relevant facts
Barrow was charged with concealing had to do with the
circumstances of his resignation, rather than the resignation
itself. Appellee Br. 35–36.
We cannot say, on this record, that “the guilty verdict was
‘surely unattributable to the error.’” Wilson, 605 F.3d at 1024
(quoting United States v. Baugham, 449 F.3d 167, 176 (D.C.

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Cir. 2006)). The exculpatory evidence undercut a critical part
of the government’s case, and its exclusion left Barrow to
defend with one arm tied behind his back. At closing, the
government focused at length on how Barrow “la[id] the
groundwork for his scheme to hide the truth early on in
TIGTA’s application process.” J.A. 2832:16–18. The
government called Barrow’s resume—which listed him as still
employed by Army-CID—“a lie,” and argued at length that the
error could not have been unintentional. J.A. 2832–J.A. 2833.
The government further argued that Barrow’s “lie in his resume
help[ed] him through the next phase,” which included further
“lie[s]” on forms regarding his employment status. J.A. 2833–
J.A. 2835. In addition, one of the things the indictment
specifically charged Barrow with concealing from TIGTA was
“that he had previously resigned from a position with Army-
CID prior to Army-CID’s proposed termination of Barrow[.]”
J.A. 39 ¶ 25. Given the nature of the allegation and the
government’s argument, there is relevant doubt as to whether
precluding Barrow from presenting evidence that he expressly
informed his TIGTA interviewers that he was no longer
employed influenced the verdict against him.
The district court excluded relevant testimony that should
not have been excluded under Federal Rule of Evidence 402.
As a result, we reverse Barrow’s concealment conviction and
remand for further proceedings consistent with this opinion.
D.
Barrow posits that if the evidence is insufficient to support
wire fraud convictions, we must vacate the district court’s
restitution order. Appellant’s Br. 68.
“The purpose of the [Mandatory Victim Restitution Act]
is ‘essentially compensatory: to restore a victim, to the extent
money can do so, to the position [the victim] occupied before

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sustaining injury.’” United States v. Fair, 699 F.3d 508, 512
(D.C. Cir. 2012) (citation omitted). Because we vacate all three
of Barrow’s convictions, there is no longer an injury to the
government to “restore.” Therefore, we vacate the restitution
order of $77,057.00.
*****
For the foregoing reasons, we (1) vacate Chance Barrow’s
two convictions for wire fraud and remand for entry of a
judgment of acquittal; (2) reverse Barrow’s conviction for
concealment of material facts and remand for further
proceedings consistent with this opinion; and (3) vacate the
district court’s restitution order.
So ordered.

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