United States of America v. Mark L. 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.

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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

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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

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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.

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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,

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“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[.]

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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

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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,’

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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 treatise2 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).

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[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.

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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

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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.).

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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.

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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

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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

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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.”).

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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

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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

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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.”).

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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

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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)

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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 standards8;
(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)).

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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

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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

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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

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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.

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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

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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

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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).

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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.

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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.

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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[.]”).

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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

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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.

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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

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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,

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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

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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.

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