United States v. Brockenborrugh

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 9, 2009 Decided August 7, 2009

No. 08-3016

UNITED STATES OF AMERICA,
APPELLEE

v.

NELSON BROCKENBORRUGH,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 07cr00078-02)

Richard K. Gilbert argued the cause and filed the briefs
for appellant.

Florence Y. Pan, Assistant U.S. Attorney, argued the
cause for appellee. On the brief were Jeffrey A. Taylor, U.S.
Attorney, and Roy W. McLeese, III, Elizabeth Trosman, and
Patricia A. Heffernan, Assistant U.S. Attorneys.

Before: SENTELLE, Chief Judge, and ROGERS and
GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.
 2
Opinion concurring in part and dissenting in part filed by
Circuit Judge ROGERS.

GRIFFITH, Circuit Judge: A jury found Nelson
Brockenborrugh guilty of wire fraud and conspiracy to
commit wire fraud, and the district court sentenced him to 46
months in prison. On appeal, Brockenborrugh contends that
the evidence produced at trial was insufficient to support his
convictions and that a number of the district court’s rulings
were erroneous and sufficiently prejudicial to warrant a new
trial. He also argues that the district court made three errors in
calculating his sentence. For the reasons set forth below, we
reject these arguments and affirm Brockenborrugh’s
convictions and sentence.

I.

A.

Because Brockenborrugh’s appeal relies in large measure
on an argument regarding the sufficiency of the evidence
presented at trial, we must recount that evidence in some
detail. When James Roy died on October 13, 2004, he left to
his heirs a multiunit residential property located at 1133 6th
Street N.W., Washington, D.C. Although the condition of the
property deteriorated after Roy’s death, its location a block
from the city’s new convention center attracted the interest of
a number of developers. Named as the executor of her father’s
estate, Katrina Robinson had to decide what to do with the
rundown property. Robinson first met Brockenborrugh while
visiting the property in April 2005. According to Robinson,
Brockenborrugh, a retired police officer who worked as a
Court Security Officer (CSO) at the D.C. Superior Court, and
his realtor, Denise McLeod, were at the site and asked her
about buying the property. During this conversation, McLeod
 3
told Robinson she was an employee of the D.C. government,
introduced Brockenborrugh as a U.S. Marshal, and said,
“[W]e have been watching your property, because we have
been getting several complaints . . . about the things . . . going
on there.” Trial Tr. 189–90 (Oct. 23, 2007). Brockenborrugh
told Robinson that he was “working with” the U.S. Marshals,
Trial Tr. 44 (Oct. 24, 2007), showed her a gold-plated badge,
and stated that he was a retired police officer. Robinson told
them that once she was officially appointed executor, she
would consult with her family and then decide whether to sell.
The three exchanged phone numbers, and Robinson told
Brockenborrugh and McLeod to contact her lawyer, David
Scull, if they remained interested in buying the property. On
June 21, 2005, McLeod called Scull. She told him that “U.S.
Marshal Brockenborrugh wanted to buy the property” and
could assist in solving the problem created by squatters who
had moved into its abandoned units. Trial Tr. 131 (Oct. 18,
2007). McLeod also advised Scull that she was “monitoring
every aspect” of the property. Id. at 132.

On September 8, 2005, McLeod filed with the District of
Columbia Recorder of Deeds a fraudulent deed that purported
to convey the property from James Roy to her for $10,000.
Because the deed reflected a nominal sale price, the District
required an additional payment of $7610, which included a
transfer tax and recording fee based on the assessed value of
the property. Two other people helped McLeod file the deed.
Cynthia Russell “witnessed” James Roy’s signature (though,
of course, Roy did not posthumously sign the deed). LaShawn
Lewis notarized the deed in return for $250. (Both pleaded
guilty to charges related to these actions.) A week later,
Brockenborrugh wrote McLeod a check for $8804,
approximately one half of the total purchase price, and noted
on the memo line, “For my half of 1133 6th St NW.” App. at
49. At trial, Brockenborrugh testified he wrote the check
 4
because he “just wanted to make sure that [he] was included
in to what [he] thought was a legal transaction.” Trial Tr. 88–
89 (Oct. 25, 2007). He had asked McLeod, “[H]ow much do I
owe you?,” id. at 155, and she responded, “[R]ight now I
don’t know what the total price is going to be, but for now I
have had to pay the water and tax bill . . . [s]o this is what the
price is,” id. at 155–56. McLeod subsequently agreed to sell
the property to developer Kenneth Silbert for $300,000. When
Silbert’s lawyer conducted a title search, he uncovered the
fraudulent deed. Silbert instructed him not to tell Robinson.

On October 6, 2005, Metropolitan Police Department
Officer Israel James was called to the property, where he
found Brockenborrugh and McLeod. Brockenborrugh was
wearing his CSO uniform and may also have been wearing his
CSO security badge. According to Officer James, the two
claimed they had “authority” over the property and
complained that squatters needed to be removed. Trial Tr. 33–
34 (Oct. 22, 2007). Brockenborrugh does not deny he was at
the property but claims that only McLeod talked to the police.
Two investigators from the fire department also responded at
the scene. Because the squatters had been poaching electricity
and creating a fire hazard, they declared the property
uninhabitable and ordered the squatters to leave. Later that
day, a bystander called Robinson to report that McLeod was
hanging around the property saying she was the new owner.
The caller then passed the phone to McLeod, who told
Robinson she “was getting [the squatters] out” and would
“contact her later.” Trial Tr. 202 (Oct. 23, 2007). Wondering
why McLeod was at the property, Robinson called her lawyer,
Scull. Scull ran his own title search, discovered the fraudulent
deed assigning the property to McLeod, and, with the
encouragement of Robinson, called the FBI.
 5
On October 19, 2005, Robinson, wearing an FBI wire,
met with Brockenborrugh, McLeod, Silbert, and Nathan
Carter, who is alleged to be the person that would finance any
purchase of the property. During their conversation with
Robinson, members of the group made representations that
implied the property was worthless, and Brockenborrugh
claimed responsibility for the removal of the squatters. As a
retired police officer, he said that he had asked a few current
officers whom he knew to keep an eye on the property. This
increased protection, he boasted, had prevented the squatters
from reentering and ended the neighbors’ complaints about
the property’s condition. Brockenborrugh added that one of
the squatters had seen him at the courthouse and said, “[O]h
you’re a real marshal.” App. at 105. Robinson interjected,
“Oh he didn’t think you were?” Id. at 106. “He didn’t believe
it,” confirmed Brockenborrugh. Id. Brockenborrugh testified
that he did not correct the occupant because the comment
“didn’t really phase [sic] [him].” Trial Tr. 174 (Oct. 25, 2007).

Brockenborrugh, McLeod, and Carter also told Robinson
that she faced a number of risks by retaining the property. For
example, they warned her that the squatters might burn down
the building. Brockenborrugh said the situation was “really,
really serious” and that each passing day was like “spinning
the roulette wheel.” App. at 117. McLeod told Robinson that
the squatters could sue her because the building contained
asbestos that was making them ill. She also warned Robinson
that the city could file a “wrongful housing” suit and assess a
fine on the property but had not yet done so because of
Brockenborrugh’s influence. Id. at 118–19.

Robinson said that her family wanted $825,000 for the
property. McLeod rejected that price out of hand. She argued
that the building itself was worth nothing and that the land
was worth only $99,000 to $130,000. The group offered
 6
Robinson $130,000 and presented her with a contract.
Robinson asked for more information about all the buyers
except for Brockenborrugh. She stated that she “[knew] about
Mr. US Marshall [sic].” Id. at 137. Brockenborrugh urged
Robinson to act quickly, adding that the police would check
on the property so long as he was “still in the mix.” Id. at 143.
If he did not “do his part,” they would stop. Id. at 144.

Two days later, McLeod faxed to Robinson a document
that purported to be an official District of Columbia “Property
Detail,” which contained fictitious assessments of the
property. The document was fraudulent in several respects,
and the value of the property’s improvements was listed as
“$0.00 (inhabitable) [sic],” id. at 50–51. McLeod later faxed a
revised contract along with a letter assuring the Roy heirs that
the only issues revealed by a title search were outstanding
property taxes and water bills. Obviously, the letter did not
mention the fraudulent deed.

The FBI convened a second meeting with the group,
during which an undercover agent posed as “James Roy, Jr.”
Also present were Robinson, another undercover agent,
McLeod, Carter, and Silbert. McLeod explained that
Brockenborrugh could not make the meeting because, as “a
U.S. Marshall [sic],” he was “assigned to a judge” that day. R.
Material Tab 3, 3. The agent posing as James Roy, Jr., stated
that he wanted $200,000 for the property. The parties
eventually agreed to a purchase price of $165,000. At that
point, Brockenborrugh joined the meeting via speakerphone.
McLeod told him that “James Roy” wanted $165,000 and
asked, “[C]an we go forward with that?” Id. at 32.
Brockenborrugh replied, “I’ll go with that.” Id. at 33.
 7
B.

By an indictment filed March 22, 2007, the grand jury
charged Brockenborrugh and McLeod with five crimes: (1)
wire fraud in violation of 18 U.S.C. § 1343; (2) conspiracy to
commit wire fraud in violation of 18 U.S.C. § 1349; (3) first-
degree fraud in violation of D.C. CODE §§ 22-3221(a), -1805;
(4) forgery in violation of D.C. CODE §§ 22-3241, -1805; and
(5) uttering a forged instrument in violation of D.C. CODE
§§ 22-3241, -1805. McLeod pleaded guilty to each count
shortly before trial and did not take the stand. The jury found
Brockenborrugh guilty of wire fraud and conspiracy to
commit wire fraud, but acquitted him of the other charges.

At trial, the district court made three rulings relevant to
this appeal. The first concerned whether Robinson’s attorney,
Scull, could testify about statements McLeod made to him
during their June 21, 2005, telephone conversation. The
district court admitted the testimony under Federal Rule of
Evidence 801(d), which provides an exemption to the rule
against hearsay for statements of a co-conspirator made in
furtherance of the conspiracy. Second, the district court ruled
that the government could question Brockenborrugh about his
sexual relationship with McLeod, finding that the prejudicial
value of the testimony would not outweigh its probative
worth. And third, the district court refused Brockenborrugh’s
request for a jury instruction on multiple conspiracies, finding
it was not supported by the evidence.

At sentencing, the parties agreed that section 2B1.1 of the
Federal Sentencing Guidelines, which governs offenses
involving fraud, applied and that Brockenborrugh’s base
offense level was 7. See U.S. SENTENCING GUIDELINES
MANUAL § 2B1.1 (2007) [hereinafter U.S.S.G.]. The parties
disagreed, however, over how much the court should increase
 8
Brockenborrugh’s sentence under that section, which ties a
defendant’s total offense level to the amount of loss for which
he is responsible, see id. § 2B1.1(b). The district court
concluded that Brockenborrugh’s conduct involved an
intended loss between $200,000 and $400,000, and thus
warranted a twelve-level increase. Over Brockenborrugh’s
objection, the district court also applied two enhancements:
(1) a two-level enhancement for abuse of trust because
Brockenborrugh falsely represented that he was a U.S.
Marshal to significantly facilitate his offense; and (2) another
two-level enhancement for obstruction of justice because
Brockenborrugh lied on the stand. The resulting offense level
was 23, which translated into a sentencing range of 46 to 57
months under the Sentencing Guidelines because
Brockenborrugh had no prior criminal history. The district
court sentenced Brockenborrugh to 46 months’ imprisonment
followed by two years of supervised release.

II.

On appeal, Brockenborrugh renews his challenges to the
district court’s trial and sentencing rulings and also argues
that there was insufficient evidence for a jury to conclude he
engaged in any fraudulent conduct. We have jurisdiction to
consider these arguments under 28 U.S.C. § 1291 and 18
U.S.C. § 3742.

We begin with the argument that there was insufficient
evidence to support Brockenborrugh’s convictions. Our
review of such challenges is narrow. We must view the
evidence in the light most favorable to the government and
“accept the jury’s guilty verdict if we conclude that ‘any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.’” United States v.
Branham, 515 F.3d 1268, 1273 (D.C. Cir. 2008) (quoting
 9
United States v. Arrington, 309 F.3d 40, 48 (D.C. Cir. 2002)).
Brockenborrugh does not dispute that the evidence
established two attempts to fraudulently obtain the property
located at 1133 6th Street N.W.: the filing of the forged deed
and the effort to cause the Roy heirs to sell the property for an
unreasonably low price. Nor does he dispute there was a
conspiracy to get the property unlawfully. Rather,
Brockenborrugh argues that the evidence did not prove that he
knowingly sought to defraud the Roy heirs or participated in a
conspiracy to do the same. To commit wire fraud, he must
have knowingly and willingly entered into a scheme to
defraud. To be convicted of conspiracy, he must have entered
into an agreement with another with the intent to commit wire
fraud. See United States v. Alston-Graves, 435 F.3d 331, 337
(D.C. Cir. 2006). In Brockenborrugh’s view, the evidence
showed only that he thought “the attempted purchase of 1133
Sixth Street from the heirs was progressing in the same
manner as a lawful real estate transaction.” Br. of Appellant at
27.

We disagree. There is ample evidence in the record from
which the jury could reasonably infer that Brockenborrugh
was a knowing participant in the unlawful scheme to obtain
the property. To begin with, the jury could conclude from
Brockenborrugh’s connection to the forged deed that he
knowingly entered a scheme with McLeod to defraud the Roy
heirs. This inference finds support in the check
Brockenborrugh wrote McLeod after learning she had
“purchased” the property. See App. at 49. Although the
defense argued that Brockenborrugh did not think this was his
final payment, the jury could have reasonably found that
Brockenborrugh thought that it was and that he knew the
property was being obtained by fraud.
 10
Brockenborrugh argues that the jury’s verdict on the D.C.
counts of fraud, forgery, and uttering a forged instrument
shows that he was “acquitted of all counts directly relating to
the forged deed.” Br. of Appellant at 9. Not so. As we just
explained, the federal counts also implicate the forged deed.
The jury’s verdict on the D.C. counts in no way undermines
this conclusion. Under D.C. law, a person commits the
offense of forgery or uttering “if that person makes . . . or
utters a forged written instrument with the intent to defraud
. . . another.” D.C. CODE § 22-3241(b). Anyone who advises,
incites, aids, or abets forgery or uttering is liable as a
principal. Id. § 22-1805. Brockenborrugh’s conduct does not
fall within either provision. He did not make or utter the
forged deed, and there is no evidence that he advised or aided
its creation. Likewise, a person commits first-degree fraud
under D.C. law if he actually defrauds another thereby
causing that person to lose his property. Id. § 22-3221(a). The
scheme to get the property was ultimately unsuccessful. That
there was insufficient evidence to convict Brockenborrugh of
these crimes under D.C. law does not absolve him of his
involvement with the forged deed under the federal counts.

Brockenborrugh’s knowing participation in the fraud can
also reasonably be inferred from his role in the second attempt
to secure the property from the Roy heirs. The evidence
shows that Brockenborrugh falsely represented to Robinson
that he was a U.S. Marshal, and Robinson testified that
Brockenborrugh led her to believe that he had influence over
police officers who were protecting the property on his behalf.
Brockenborrugh also suggested to Robinson that if the
property was not sold to his group, police protection would
cease, the property would be ruined, and the estate would be
liable. These actions were vital to the plot to convince
Robinson to sell the property at a deflated price, and a jury
could reasonably infer from them that Brockenborrugh
 11
knowingly entered into a scheme with his co-conspirators to
defraud the Roy heirs.

III.

Brockenborrugh challenges three trial rulings: (1) the
decision to allow attorney Scull to testify about statements
McLeod made to him in June 2005; (2) the decision to allow
the government to cross-examine him about his sexual
relationship with McLeod; and (3) the refusal to give a jury
instruction regarding the existence of multiple conspiracies.
We consider each in turn.

A.

Over the objection of defense counsel, the district court
allowed Scull to testify about statements McLeod made
during their June 2005 phone conversation. According to
Scull, McLeod said that “U.S. Marshal Brockenborrugh”
wanted to buy the property and could assist with the squatter
problem. Trial Tr. 131 (Oct. 18, 2007). The district court
provisionally admitted this testimony subject to proof of a
conspiracy under Federal Rule of Evidence 801(d)(2)(E),
which provides that a statement is not hearsay if it is offered
against a party and is made “by a coconspirator of [that] party
during the course and in furtherance of the conspiracy.”

The question on appeal is whether the district court
correctly found that Brockenborrugh and McLeod were
engaged in a conspiracy at the time McLeod made the
statements to Scull. At the close of the government’s case, the
prosecutor argued that a conspiracy, as that term is used in
Rule 801(d)(2)(E), could be inferred as early as April 2005 or
at the latest by September 2005, when Brockenborrugh wrote
the check to McLeod. The district court found that there was
 12
“overwhelming evidence of a business relationship between
Ms. McLeod and Mr. Brockenborrugh” in April 2005, Trial
Tr. 48 (Oct. 25, 2007), and “overwhelming evidence that
there was a conspiracy to commit wire fraud” in September
2005, id. at 49. Brockenborrugh argues that although the
district court may have ruled on the existence of a conspiracy
in April and September, it failed to find a conspiracy in June.

We typically review the admission of evidence under
Rule 801(d)(2)(E) for clear error. See United States v.
Gatling, 96 F.3d 1511, 1521 (D.C. Cir. 1996). The
government, however, argues that the plain error standard of
review applies because defense counsel did not renew the
objection or move to strike Scull’s testimony after the district
court ruled on the scope of the conspiracy.1 Because we find
that the district court committed no error—clear, plain, or
otherwise—in admitting the testimony we need not decide
which standard best fits these facts.

We have previously explained that when admitting
testimony under Rule 801(d)(2)(E), “the district court must
find by a preponderance of the evidence that a conspiracy
existed and that the defendant and declarant were members of
that conspiracy.” United States v. Gewin, 471 F.3d 197, 201
(D.C. Cir. 2006). Admission, however, is not contingent upon
the finding of an unlawful combination. Rather we have held
that, despite its use of the word “conspiracy,” Rule
801(d)(2)(E) allows for admission of statements by
individuals acting in furtherance of a lawful joint enterprise.
1
When a party forfeits a challenge by failing to raise it below, the
general rule is that plain error review applies. See FED. R. CRIM. P.
52(b). The plain error standard of review imposes a more
substantial burden on criminal defendants than does clear error
review, and is intended to ensure that forfeited-but-obvious errors
do not effect a miscarriage of justice.
 13
See Gewin, 471 F.3d at 201–02; United States v. Weisz, 718
F.2d 413, 433 (D.C. Cir. 1983) (stating that the rule, which
derives from agency and partnership law, “embodies the long-
standing doctrine that when two or more individuals are
acting in concert toward a common goal, the out-of-court
statements of one are . . . admissible against the others, if
made in furtherance of the common goal”). Citing Gewin, the
district court found “overwhelming evidence” that
Brockenborrugh and McLeod were engaged in a “business
relationship” as early as April 2005. Trial Tr. 48 (Oct. 25,
2007). Our review of the record supports this conclusion and
reveals ample evidence that this relationship continued such
that in June 2005, the pair was engaged in a lawful joint
enterprise to acquire the property. For example,
Brockenborrugh testified that McLeod, at the time of her
conversation with Scull, was acting as his real estate agent for
his attempted purchase of the property. Id. at 78–81.
McLeod’s statements to Scull that “U.S. Marshal
Brockenborrugh” was interested in buying the property were
made in furtherance of this enterprise and properly admitted.

B.

Brockenborrugh also argues that the district court erred in
allowing the government to cross-examine him about his
sexual relationship with McLeod. We review this ruling for
abuse of discretion. See United States v. Fonseca, 435 F.3d
369, 373 (D.C. Cir. 2006).

After hearing arguments from both sides, the district
court determined that cross-examination was needed to show
the “closeness” of Brockenborrugh’s relationship with
McLeod and “for . . . impeachment purposes to cast doubt [on
Brockenborrugh’s] credibility.” Trial Tr. 57 (Oct. 25, 2007).
The court concluded that any prejudice that might result from
 14
questions asked about the sexual relationship would be
outweighed by the probative value of the testimony given.
When Brockenborrugh took the witness stand, defense
counsel asked him to tell the court and the jury “basically” his
relationship with McLeod. Id. at 68. Brockenborrugh
answered that McLeod “did taxes” for half of the CSOs in the
courthouse, “did real estate,” and was his property manager.
Id. at 68–69. He did not mention the sexual component of the
relationship. On cross-examination, the prosecutor first asked
Brockenborrugh if he had a chance to finish his answer about
the relationship, and Brockenborrugh responded that he had.
The prosecutor pressed further and questioned him about his
sexual relationship with McLeod. Only then did
Brockenborrugh acknowledge its existence between 2002 and
late 2004 or early 2005. He also admitted to concealing the
relationship when first interviewed by the FBI. See id. at 133–
39. At the close of trial, the court instructed the jury not to
consider the sexual relationship as proof of Brockenborrugh’s
bad character but only as evidence of the true nature of his
relationship with McLeod and of Brockenborrugh’s
credibility based on his failure to describe the full extent of
that relationship during his direct testimony.

The district court acted well within its discretion in
permitting the cross-examination. Cross-examination of a
criminal defendant is permissible on the subject matter of the
defendant’s direct examination and matters affecting
credibility. See FED. R. EVID. 611(b); see also United States v.
Raper, 676 F.2d 841, 846 (D.C. Cir. 1982). Brockenborrugh’s
testimony on direct examination suggested that he and
McLeod had nothing more than a business relationship. The
government was therefore entitled to elicit further testimony
to show the true nature of the relationship. Brockenborrugh
argues that cross-examination on this subject should have
been prohibited under Federal Rule of Evidence 403, which
 15
allows for the exclusion of evidence if its “probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” The district court,
however, “‘is in the best position to perform [the] subjective
balancing’ required under Rule 403.” United States v.
Johnson, 519 F.3d 478, 483 (D.C. Cir. 2008) (quoting United
States v. Cassell, 292 F.3d 788, 795–96 (D.C. Cir. 2002))
(alteration in original). Upon review, we see no abuse of
discretion in the balance struck by the district court. The
probative value of the evidence was substantial as it spoke to
the central issue in the case: whether Brockenborrugh was a
knowing participant in the fraudulent scheme or an innocent
real estate investor caught up in McLeod’s thievery. The only
prejudicial effect identified by Brockenborrugh is the possible
inference “that a person who ‘cheats’ on his wife cannot be
trusted,” Br. of Appellant at 33. Any such effect was
mitigated by the district court’s instruction to the jury to
disregard the relationship as evidence of bad character. Cf.
Greer v. Miller, 483 U.S. 756, 766 n.8 (1987) (“We normally
presume that a jury will follow an instruction to disregard
inadmissible evidence inadvertently presented to it . . . .”).

C.

Brockenborrugh’s final contention regarding his trial is
that the district court erred in refusing to instruct the jury to
consider whether the evidence supported the existence of
multiple conspiracies. The district court determined that such
an instruction was not warranted. We review this decision de
novo. United States v. Dickerson, 163 F.3d 639, 641 n.3 (D.C.
Cir. 1999). If the record supports the existence of multiple
conspiracies, the jury must be instructed to consider them.
United States v. Hemphill, 514 F.3d 1350, 1363 (D.C. Cir.
 16
2008). Brockenborrugh argues that a jury could have found
several conspiracies to obtain the property and that he was
involved in only some of them. This instruction, according to
Brockenborrugh, would have allowed the jury to distinguish
his legitimate activities from the fraudulent ones of McLeod
and others. For example, Brockenborrugh argues that the
creation of the forged deed and its concealment from
Robinson were two separate conspiracies, and that he was not
involved in either. But a single conspiracy can “pursue
multiple schemes with different modi operandi without
dividing into multiple conspiracies, as long as there is a single
objective.” Id. at 1364. Whether a course of conduct should
be classified as a single conspiracy or divided into multiple
conspiracies depends on whether the participants shared a
common goal, were dependent upon one another, and were
involved together in carrying out at least some parts of the
plan. See United States v. Mathis, 216 F.3d 18, 23–24 (D.C.
Cir. 2000); cf. Hemphill, 514 F.3d at 1364 (“The mere fact
that the conspirators found different ways to [carry out their
crime] does not break the conspiracy into parts.”).

We think the record is best interpreted as showing a
single conspiracy to acquire the property. Although the
conspirators may have tried to achieve their goal in different
ways, their actions demonstrate pursuit of a sole objective: the
fraudulent acquisition of the Roy property. McLeod filed a
forged deed in an attempt to secure title, and Brockenborrugh
reimbursed half of the claimed cost to buy the property. When
that failed, McLeod, Brockenborrugh, and others sought to
fraudulently obtain the property from Robinson and the other
Roy heirs. The participants all worked toward a common
goal, and although Brockenborrugh may not have participated
in every step of the conspiracy, it is clear that he was
significantly involved from start to finish. Accordingly, we
hold that the evidence establishes a single conspiracy. The
 17
district court did not err in refusing to give the jury
Brockenborrugh’s requested instruction.

IV.

Brockenborrugh also appeals from his sentence, arguing
the district court made three clearly erroneous factual findings
in calculating his sentencing range. When applying the clear
error standard of review, we are mindful that the trial judge
has a unique opportunity “to evaluate the credibility of
witnesses and to weigh the evidence.” Inwood Labs., Inc. v.
Ives Labs., Inc., 456 U.S. 844, 855 (1982); see also HARRY T.
EDWARDS & LINDA A. ELLIOT, FEDERAL COURTS STANDARDS
OF REVIEW: APPELLATE COURT REVIEW OF DISTRICT COURT
DECISIONS AND AGENCY ACTIONS 21 (2007) (explaining
clearly erroneous standard). Accordingly, we affirm unless we
are “left with the definite and firm conviction that a mistake
has been committed.” United States v. U.S. Gypsum Co., 333
U.S. 364, 395 (1948).

We begin with Brockenborrugh’s argument that the
district court did not properly calculate the monetary loss
associated with his offense. Under section 2B1.1 of the
Guidelines, a defendant’s offense level depends in part on the
loss—actual or intended—for which he is responsible. See
U.S.S.G. § 2B1.1(b)(1) & cmt. n.3(A). Of course,
Brockenborrugh caused no actual loss because the scheme
was ultimately unsuccessful. But the district court found that
the conspirators planned to sell the property to Silbert for
$300,000. Under section 2B1.1, that amount of intended loss
required a twelve-level increase to Brockenborrugh’s base
offense level. Brockenborrugh does not object to the $300,000
figure as a “starting point,” see Reply Br. of Appellant at 7,
but argues it should have been discounted by the $165,000 he
and his co-conspirators agreed to pay the Roy heirs in their
 18
second attempt to obtain the property. According to
Brockenborrugh, the amount of loss is at most $135,000,
which calls for a ten- rather than a twelve-level increase.

The district court’s loss calculation is a factual finding
that we review for clear error. United States v. Leonzo, 50
F.3d 1086, 1088 (D.C. Cir. 1995).2 Brockenborrugh’s
argument is flawed because it overlooks the effort to obtain
the property using the fraudulent deed. Had Brockenborrugh
and McLeod succeeded, the conspirators would have sold the
property for $300,000 without any involvement by its rightful
owners. It was only after this first attempt failed that
Brockenborrugh and McLeod agreed to pay any money to the
Roy heirs. Brockenborrugh fails to account for this first
attempt because he argues there is no evidence “linking him
to McLeod’s fraudulent deed scheme,” Reply Br. of Appellant
at 8. But as we have explained, this is simply not true.
Accordingly, there is no reason for deducting any amount
from the $300,000 of intended loss.

2
The government argues, and Brockenborrugh seems to agree, that
Brockenborrugh’s challenges to the district court’s factual findings
are subject to plain error review under United States v. Olano, 507
U.S. 725, 732 (1993), because they were not raised before the
district court. See Br. of Appellee at 51. Our case law on this issue
is not settled, and two members of this court have recently
expressed the view in a concurring statement that we must apply a
clear error standard of review to factual findings made at the time
of sentencing regardless of whether the defendant objected to those
findings below. See In re Sealed Case, 552 F.3d 841, 848–52 (D.C.
Cir. 2009) (Edwards, J., concurring, joined by Silberman, J.).
Because we find no clear error—much less plain error—in the
district court’s factual findings, we affirm without taking up this
question.
 19
Brockenborrugh next argues that the district court erred
by enhancing his sentence for abuse of a position of trust.
Section 3B1.3 of the Guidelines provides that if a defendant
holds himself out to his victim as occupying a position of
public trust in a way that significantly facilitates the
commission of the offense, his sentence may be increased by
two levels. U.S.S.G. § 3B1.3 & cmt. n.3. The district court
determined that there was “absolutely no question . . . that
[Brockenborrugh] acted so as to create the impression in the
minds of a number of individuals that he was a United States
Marshal.” Trial Tr. 23 (Feb. 14, 2008). Brockenborrugh
disputes this finding, arguing that he never held himself out as
a U.S. Marshal and that, even if he did, he did not use his
representations to facilitate an offense.

Because this challenge calls into question findings of
fact, we again review for clear error. See 18 U.S.C. § 3742(e)
(2006); see also United States v. Henry, 557 F.3d 642, 644–45
(D.C. Cir. 2009). There is evidence that Brockenborrugh held
himself out as a U.S. Marshal. For example, Brockenborrugh
told Robinson that one of the property’s squatters, seeing him
at the courthouse, said, “[O]h you’re a real marshal.” App. at
105. Brockenborrugh did not correct him, but instead adopted
the characterization and stated that the squatter had not
previously believed that he held such a position. See id. at
106. During that same conversation, when the conspirators
presented Robinson with a contract to buy the property, she
requested additional information about the buyers but told
Brockenborrugh that she already knew about “Mr. US
Marshall [sic].” Id. at 136–37. Again, Brockenborrugh made
no effort to correct her mistaken impression.

There is also evidence that Brockenborrugh used these
misrepresentations to facilitate the offense. The scheme
required convincing Robinson that the property was worth
 20
little or nothing and that her only realistic option was to sell it
to the conspirators for a price she would not realize was well
below its true value. Brockenborrugh used his fictitious status
as a U.S. Marshal toward this end. For example, after telling
Robinson that the squatter recognized him as a “real marshal,”
Brockenborrugh claimed that the only reason the squatters
had not reentered the property was his continuing
involvement in its purchase. And, as noted, Robinson did not
press for additional information about Brockenborrugh
because she believed him to be a U.S. Marshal. Thus the
district court did not clearly err in concluding that
Brockenborrugh presented himself as a U.S. Marshal and used
that representation to facilitate his offense.

Finally, Brockenborrugh argues that the district court
erred in increasing his offense level for obstruction of justice.
Section 3C1.1 of the Sentencing Guidelines provides:

If (A) the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of
justice with respect to the investigation, prosecution, or
sentencing of the instant offense of conviction, and (B)
the obstructive conduct related to . . . the defendant’s
offense of conviction and any relevant conduct[,]
increase the offense level by 2 levels.

The commentary to this guideline provides a nonexhaustive
list of conduct that may constitute obstruction of justice,
including perjury, destroying or concealing material evidence,
and providing a materially false statement to law enforcement
to significantly obstruct an official investigation. See id.
§ 3C1.1, cmt. n.4. The commentary makes clear, moreover,
that “the conduct to which th[e] adjustment applies is not
subject to precise definition.” Id. § 3C1.1, cmt. n.3.
 21
The district court applied this adjustment because
Brockenborrugh lied on the stand, finding that “[h]e very
obviously denied his extremely close, not to say intimate
relationship with, Ms. McLeod,” “falsely denied that he
evicted the tenants,” and “denied that he threatened Ms.
Robinson . . . that he could influence the police to withdraw
their extra attention and protection for the property.” Trial Tr.
24–25 (Feb. 14, 2008). Brockenborrugh does not dispute that
lying on the stand is grounds for applying this adjustment.
Instead he claims that his testimony was truthful, which is
another challenge to the district court’s factual findings that
we review for clear error, 18 U.S.C. § 3742(e).

Brockenborrugh’s testimony about his ability to influence
the police to protect the property provides ample support for
the district court’s decision that he lied. During the first group
meeting, Brockenborrugh threatened to have the police stop
paying extra attention to the property, which meant, in effect,
that the police would leave the property without protection
from squatters. He told Robinson his group’s involvement in
the sale was “the only reason why the police [we]re doing
anything” to keep the squatters out of the building. App. at
143 (wire transcript). Although acknowledging that the police
had a general duty to protect all property, Brockenborrugh
cynically added, “[Y]ou know how police are,” implying that
without his participation the police would do nothing at all to
protect this property. Id.; see also id. at 143–44. At trial,
Brockenborrugh admitted he threatened that extra police
attention would cease were Robinson to stop dealing with his
group. He denied, however, threatening that police protection
would cease altogether. He stated that he merely meant the
police “wouldn’t be going by there on [his] behalf. [It] is their
job to go by there and check on that property, or any
property.” Trial Tr. 187 (Oct. 25, 2007); see also id. at 187–
88 (“Q: [Y]ou meant to suggest to Ms. Robinson that if you
 22
pulled out of the deal, . . . the police . . . will go away, right?
A: I didn’t mean that they would go away just because I was
out of the deal.”).

The district court concluded that Brockenborrugh lied at
trial about what he said to Robinson regarding the level of
protection the police would give the property. In a spare
explanation, the district court said only that Brockenborrugh
lied about his threat to withdraw the police’s “extra attention
and protection for the property.” Trial Tr. 25 (Feb. 14, 2008).
We read this explanation as referring not only to
Brockenborrugh’s threat to remove extra attention but also to
his threat to remove all protection from the property. Because
Brockenborrugh’s testimony about this latter threat was
untruthful, we conclude that the district court did not clearly
err in deciding that Brockenborrugh’s trial testimony
contradicted what he had told Robinson and warranted an
enhancement for obstruction of justice.

Our dissenting colleague argues that the district court did
not base its finding of obstruction of justice on
Brockenborrugh’s lie at trial about his threat to withdraw all
police protection from the property. Rather, according to her
reading, the district court mistakenly relied on a nonexistent
contradiction in what Brockenborrugh said about withdrawal
of extra police attention for the property. Were we to read the
district court’s explanation as referencing only the withdrawal
of extra police attention, we would agree with the dissent.
Brockenborrugh admitted at trial that he threatened to
withdraw the extra police attention. But given the evidence
presented at trial and the “crystal clear” discrepancy between
Brockenborrugh’s testimony and his recorded statements,
Trial Tr. 25 (Feb. 14, 2008), it is apparent that the district
court based its conclusion on a finding that Brockenborrugh
lied at trial when he denied having made a threat to withdraw
 23
even minimal police protection for Robinson’s property. This
reading of the district court’s explanation is bolstered by the
fact that the government argued in its sentencing
memorandum for an enhancement not because
Brockenborrugh lied about the extra police attention, but
because he lied about “threaten[ing] Ms. Robinson that he
could cause the withdrawal of police attention to her
property” altogether. Government’s Mem. in Aid of
Sentencing at 7. The district court enhanced
Brockenborrugh’s sentence at the government’s request,
which strongly suggests that it relied on the lie the
government identified about the threatened withdrawal of all
police protection.

We reject the dissent’s suggestion that we reach this
conclusion through impermissible appellate factfinding. See
Dissenting Op. at 7 (“[F]actfinding is the basic responsibility
of district courts, rather than appellate courts, and . . . the
Court of Appeals should not . . . resolve[] in the first instance
[a] factual dispute which had not been considered by the
District Court.” (quoting In re Sealed Case, 552 F.3d 841, 845
(D.C. Cir. 2009) (alterations in original))). To the contrary,
we have explained why the district court’s factfinding and
conclusion are not clearly erroneous. We have found no facts
and have in no way usurped the district court’s factfinding
function. We have, instead, respected it, and merely described
the relevant context to show the district court’s decision is
best understood as increasing Brockenborrugh’s sentence
because he lied at trial about his threat to withdraw police
protection from the property. The dissent, reading the district
court’s explanation in a parsed manner that overlooks its
meaning in context, simply disagrees that this conclusion
correctly conveys what the district court had in mind.
 24
The district court’s decision is independently supported
by Brockenborrugh’s lie in his testimony about his
relationship with McLeod. Viewing the testimony on this
subject in the light most favorable to Brockenborrugh, the
district court could have concluded that Brockenborrugh
testified truthfully about the relationship; he did not deny its
existence and the first time he was asked about the sexual
nature of the relationship on cross-examination, he answered
honestly. But it is also reasonable to conclude that he lied
about the relationship. Brockenborrugh was on notice that his
relationship with McLeod was relevant because he put the
relationship at issue. His central defense, after all, was that he
was an innocent investor deceived by McLeod, his realtor, to
join unwittingly in an unlawful business transaction. And
before Brockenborrugh took the stand, the district court heard
argument between counsel in Brockenborrugh’s presence on
whether he could be cross-examined about his sexual
relationship with McLeod. It is fair to infer that
Brockenborrugh was intentionally concealing the true nature
of his relationship when he testified that his prior description,
which made no mention of the romance, was complete.3
“Where there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly
erroneous.” Anderson v. Bessemer City, 470 U.S. 564, 574
(1985).

3
The dissent makes much of the fact that Brockenborrugh was
merely asked to describe “basically” his relationship with McLeod.
See Trial Tr. 68–69 (Oct. 25, 2007); see also Dissenting Op. at 11–
15. But Brockenborrugh and McLeod’s two-and-a-half-year affair
was a “basic” element of their relationship, and it seems reasonable
that he would have mentioned it as such despite his view that he
was not McLeod’s “boyfriend or anything,” Trial Tr. 134 (Oct. 25,
2007).
 25
Our dissenting colleague states that a more searching
form of clear error review applies because this case does not
require us to “review[] factual findings based on assessments
of the credibility of a witness.” Dissenting Op. at 2. Yet that is
exactly what we are called upon to do. Cf. Bose Corp. v.
Consumers Union of U.S., Inc., 466 U.S. 485, 499–501 (1984)
(“The same ‘clearly erroneous’ standard applies to findings
based on documentary evidence as to those based entirely on
oral testimony, but the presumption has lesser force in the
former situation than in the latter.” (citations omitted)). Upon
viewing Brockenborrugh’s demeanor on the witness stand and
hearing all of the evidence presented at trial, the district court
determined that Brockenborrugh lied about his sexual
relationship with McLeod. On clear error review, appellate
judges should not comb through the record seeking to identify
the best factual inferences to draw from the transcript of a
witness’s testimony. “The trial judge’s major role is the
determination of fact, and with experience in fulfilling that
role comes expertise.” Bessemer City, 470 U.S. at 574. We
must defer to the considered judgment of the trial judge.
Doing so, we hold that the district court did not clearly err in
finding Brockenborrugh lied on the stand.

V.

For the foregoing reasons, the judgment of the district
court is

Affirmed.
 ROGERS, Circuit Judge, concurring in part and dissenting in
part: A sentencing enhancement for perjury under section 3C1.1
of the United States Sentencing Guidelines (“U.S.S.G.”) “can be
imposed only if the district court finds that the defendant gave
‘false testimony concerning a material matter with the willful
intent to provide false testimony, rather than as a result of
confusion, mistake, or faulty memory.’” United States v. Smith,
374 F.3d 1240, 1245 (D.C. Cir. 2004) (quoting United States v.
Dunnigan, 507 U.S. 87, 94 (1993)). The district court concluded
that Brockenborrugh’s sentence should be increased for
obstruction of justice upon finding he had committed perjury at
trial by denying: (1) he had evicted the squatters occupying the
real property that was the object of the conspiracy, (2) he had
threatened the executor that he would withdraw the extra
attention and protection that his connections with local police
had obtained for the property, and (3) he had an intimate
relationship with his co-defendant, Denise McLeod. These were
the only findings made by the district court in determining an
obstruction of justice enhancement was appropriate.

This court does not address the first finding and there is no
support for it in the record. This court’s efforts to find support
for the other two findings are valiant, but those findings are
directly contradicted by trial testimony that shows
Brockenborrugh admitted making the threat and having the
intimate relationship. The court acknowledges that the district
court clearly erred by finding that Brockenborrugh threatened to
withdraw the extra police attention but discovers an additional,
non-erroneous finding that was neither argued by the parties nor
articulated by the district court. As regards the relationship, the
court finds that Brockenborrugh’s testimony could be construed
as insufficiently forthright. Op. at 24-25. Perhaps so. But that
is not what the district court found, nor what the Sentencing
Guidelines require. See U.S.S.G. § 3C1.1 & cmt. nn. 2, 4(a).
Because de novo factfinding is incompatible with the role of an
 2

appellate court, see, e.g., United States v. Burke, 888 F.2d 862,
869 (D.C. Cir. 1989), I would remand the case for resentencing.

I.

In Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 597
(2007), the Supreme Court reaffirmed that review of a
sentencing court’s factual findings is for clear error. See also
United States v. Day, 524 F.3d 1361, 1367 (D.C. Cir. 2008);
United States v. Edwards, 496 F.3d. 677, 681 (D.C. Cir. 2007).
Accordingly, this court’s role is limited to determining whether
“the district court’s account of the evidence is plausible in light
of the record viewed in its entirety.” Anderson v. Bessemer City,
470 U.S. 564, 573-74 (1985). Under clear-error review, the
court may not disturb the district court’s factual findings unless
it is “left with the definite and firm conviction that a mistake has
been committed.” Id. at 573. But this deference to the
sentencing court’s choice between “two permissible views of the
evidence,” id. at 574, does not mean that this court may uphold
an erroneous factual finding simply because the record contains
some “evidence to support it,” id. at 573. Nor, as a practical
matter, does it require this court to approach all factual findings
in the same way. See Easley v. Cromartie, 532 U.S. 234, 243
(2001); Bessemer City, 470 U.S. at 575; Bose Corp. v.
Consumers Union of U.S., Inc., 466 U.S. 485, 499-501(1984).
In the instant case, this court is not reviewing factual findings
based on assessments of the credibility of a witness or the
culpability of a defendant’s mental state but the district court’s
straightforward findings that while on the witness stand
Brockenborrugh falsely denied three things. See Op. at 21.
The court is to be cognizant, in determining whether the
sentence should be remanded in light of clearly erroneous
factual findings, of the lesser costs to the systemic interests in
finality where resentencing, as opposed to retrial, is the
 3

appropriate remedy. See United States v. Saro, 24 F.3d 283,
287-88 (D.C. Cir. 1994).

The background to the district court’s imposition of the
obstruction of justice enhancement is as follows. Without any
citations to the record, the government’s sentencing
memorandum asserted that Brockenborrugh had committed
perjury at trial by falsely denying that he: “evicted the tenants,”
“displayed a U.S. Marshals badge,” “asserted the authority of a
federal marshal,” “represented himself to the heirs as a federal
marshal,” “threatened [the executor] Ms. Robinson that he could
cause the withdrawal of police attention to her property,” and
“had an ongoing relationship with his co-defendant.” Gov’t’s
Sent. Mem. 7. The government therefore asked the district court
to increase the sentence based on his obstruction of justice. Id.
citing U.S.S.G. § 3C1.1, & cmt. n. 2. The presentence report did
not make a recommendation regarding obstruction of justice
under § 3C1.1. In written objections to the presentence report,
defense counsel stated: “There is no evidence of obstructing
justice in this case and the allegations of the government are
without merit. The transcript of the proceedings will sustain the
defendant[’]s position.” Opp’n Mem. 2. Counsel repeated his
objection at the sentencing hearing.1

The district court concluded that a two-level upward
adjustment in the offense level for obstruction of justice was
warranted. In the district court’s view, the trial testimony had
been “crystal clear” as to Brockenborrugh’s obstruction of

1
In urging that Brockenborrugh has failed to show “error, let
alone plain error,” Appellee’s Br. 58, the government overlooks
defense counsel’s timely, on-point objection. See United States v.
Rashad, 396 F.3d 398, 401 (D.C. Cir. 2005) (citing FED. R. CRIM. P.
51(a)); United States v. Edmond, 52 F.3d 1080, 1103-04 (D.C. Cir.
1995).)
 4

justice. Trial Tr. 24 (Feb. 14, 2008). The district court found
that Brockenborrugh committed perjury by falsely denying on
the witness stand that he: (1) “evicted the tenants when, in fact,
that is precisely what he did on that day in question, and he did
it while asserting his authority as an alleged Federal Marshal”;
(2) “threatened Ms. Robinson [the executor of the property] . . .
that he could influence the police to withdraw their extra
attention and protection for the property”; and (3) had an
“extremely close, not to say intimate relationship with, Ms.
McLeod.” Id. at 24-25. As regards the third finding, the district
court noted that prior to cross-examination Brockenborrugh
“pretended that he barely knew her”; “tried to pretend that he
did not know where she lived”; and “tried to pretend that they
did not have a personal relationship.” Id. at 24.

II.

An examination of Brockenborrugh’s trial testimony
demonstrates a remand for resentencing is required:

A. The Eviction. As this court apparently acknowledges
by its silence, the district court’s finding that Brockenborrugh
perjured himself by denying that he evicted the tenants at the
Robinson property is clearly erroneous. The government does
not maintain on appeal that Brockenborrugh evicted the tenants,
and points to no evidence in the record to support such a finding
or to rebut the contrary evidence identified by Brockenborrugh
that two of the government’s own witnesses testified at trial that
the D.C. Fire Department conducted the eviction.

B. The Threat. The district court found that Brockenborrugh
“denied that he threatened Ms. Robinson . . . that he could
influence the police to withdraw their extra attention and
protection for the property.” Id. at 25 (emphasis added). On
appeal, the government maintains that the evidence supported
 5

the finding that Brockenborrugh “threatened to influence the
police to withdraw their extra attention and protection of the
property and that his denial of having done so was false.”
Appellee’s Br. 60. And, indeed Brockenborrugh was recorded
making just such a threat during a pre-trial meeting with Ms.
Robinson, and the recording was played in open court for the
jury before Brockenborrugh testified. On the recording,
Brockenborrugh threatened Ms. Robinson that if he could not
buy the property, then the police would no longer provide extra
attention and protection to the property on his behalf.2 But,
contrary to the district court’s finding, Brockenborrugh did not
perjure himself at trial by denying making the threat. Rather, at
trial he admitted making the threat, testifying that he told Ms.

2
Working with the FBI, Ms. Robinson recorded her meeting
with Brockenborrugh and Ms. McLeod on October 19, 2005.
Brockenborrugh was recorded telling Ms. Robinson:

I mean if we, if we . . . were out of this situation they [the
squatters] will go back up in there. . . . They’ll take those
signs up[.] [T]he only, the only reason why the police are
doing anything, I know that’s their job [. . .] [b]ut you know
how police are.

They, you know, they come out and say, hey, I Broch man, I
been checking on that house up there and I wanna catch
somebody in there, and they said, you know, you still, you
still in the mix on this right? I said yeah, please I appreciate
it[.] [I]ts okay, now we’re going to do this for you. [. . . ]

You know, but . . . [t]hey’ll help[.] [I]f, if, I can’t, if I don’t
do my part and get this thing sewed up . . . [t]hey’re not
gonna[.] [T]hey’re gonna stop. [. . .] They’re gonna say well,
hey, it’s like anything else.

Appx. 143-44 (alterations and omissions to improve readability).
 6

Robinson that if she sold the property to someone else, “[the
police] wouldn’t be going by [the property] on [his] behalf.”3

The court acknowledges that the district court clearly erred
in finding that Brockenborrugh denied threatening to withdraw
the extra police attention. Op. at 22. To save the district court’s
factual finding from being clearly erroneous, the court discovers

3
Brockenborrugh’s trial testimony was:

Q: But as a personal favor to you they were looking after that
property?

A: A police officers [sic] said that, that as a personal favor to
me they would go by and keep an eye on it during the
midnight tour, on the evening tour and the day tour.

Q: And do you remember saying to Ms. Robinson, hey you
know how the police are though. If I’m not in this anymore,
hey you know, they will not go by there anymore?

A: If she had sold it to somebody else, why — I mean they
wouldn’t be going there on my behalf. That is their job to go
by there and check on that property, or any property. It is not
— it is not — they are no longer doing — I asked him to do
me a favor and check on the property. I had never any
intention of having them or using that to swindle somebody
into selling me their property. I asked them to do it for me as
a favorite [sic] to take — I have a lot of friends, elderly
friends that say, can you have the police come by? And I say,
can you go by and check on somebody’s property for me?

Trial Tr. 187 (Oct. 25, 2007) (emphasis added); see also id. at 188 (“I
said that, you know, eventually, when the property is sold or whatever,
they are not going to just go by and check on that one location on a
daily basis.”).
 7

a second component to the district court’s actual finding,
effectively making its own findings of fact and concluding that
the district court implicitly must have made those findings as
well. The court finds that at his pre-trial meeting with Ms.
Robinson “Brockenborrugh threatened to have the police stop
paying extra attention to the property, which meant, in effect,
that the police would leave the property without protection from
squatters,” Op. at 21, but that he falsely denied making this
threat during his trial testimony, id. As support for this
unarticulated finding by the district court, the court finds that
“[a]lthough acknowledging that the police had a general duty to
protect all property, Brockenborrugh cynically added, ‘[Y]ou
know how police are,’ implying that without his participation
the police would do nothing at all to protect this property.” Id.
(quoting Appx. 143). The court proceeds to find that when
testifying at trial Brockenborrugh “denied, however, threatening
that police protection would cease altogether,” id., as a result of
the withdrawal of the extra protection, id.

“[F]actfinding is the basic responsibility of district courts,
rather than appellate courts, and . . . the Court of Appeals should
not . . . resolve[ ] in the first instance [a] factual dispute which
had not been considered by the District Court.” In re Sealed
Case, 552 F.3d 841, 845 (D.C. Cir. 2009) (quoting Pullman-
Standard v. Swint, 456 U.S. 273, 291-92 (1982) (alterations in
original). Thus, where the record evidence is susceptible of
more than one reasonable interpretation and the district court
fails to make findings on a material issue or where its findings
are unclear or incomplete, remand, not affirmance based on de
novo factfinding by this court, is the proper course. See id. at
848; United States v. Henry, 557 F.3d 642, 649-50 (D.C. Cir.
2009). Notwithstanding what the district court could have
found, this court must be able to “conclude with confidence”
from the record that the district court actually made and relied
on findings which would support the imposition of the increased
 8

sentence. United States v. McCoy, 242 F.3d 399, 411 (D.C. Cir.
2001); see also Sealed Case, 552 F.3d at 848. This restraint
makes sense: the court owes deference to the district court’s
findings, not to the findings it could have made. See United
States v. Askew, 529 F.3d 1119, 1142 n. 4 (D.C. Cir. 2008).

Instead, the court concludes that although the district court
actually found that Brockenborrugh falsely denied threatening
to withdraw the “extra attention and protection,” the district
court implicitly found that Brockenborrugh falsely denied that
the result of the withdrawal of extra attention would mean, in
reality, the withdrawal of all police protection for the property.
The effect is to convert the actual finding that Brockenborrugh
denied withdrawing “extra attention and protection” into a
finding that he denied withdrawing “extra attention and
[therefore all] protection.” No amount of “context,” Op. at 23,
can disguise that the district court did not make that finding.
Notwithstanding the court’s protest that it is not engaging in de
novo factfinding, see id., the court’s holding that the district
court did not clearly err in finding Brockenborrugh perjured
himself on the witness stand with respect to the threat he made
to Ms. Robinson relies only on its own de novo factfinding.

The court claims to derive the requisite confidence in its
reading of the district court’s actual finding from two sources.
First, the court states that its interpretation of the district court’s
finding is “crystal clear,” borrowing the phrase that the district
court used in describing its confidence in findings that were, as
the court acknowledges, see supra at 4; Op. at 22, riddled with
clear error. Critically the court cannot and does not hold that its
reading of the evidence, much less of Brockenborrugh’s trial
testimony, is the only one that the district court could reasonably
have adopted. In both his recorded statement and in his trial
testimony Brockenborrugh drew a distinction between the
“extra” police attention and protection he asked the police to
 9

provide for the Robinson property and the general attention and
protection the police would otherwise provide. Supra notes 2 &
3. As a result, it is hardly obvious that in his recorded statement
Brockenborrugh implied that without the extra protection the
Robinson property would be without any protection at all, but
that he denied implying this “threat” in his trial testimony.
Second, the court finds support in the government’s assertion in
its sentencing memorandum that Brockenborrugh falsely denied
threatening that he could “‘cause the withdrawal of police
attention to her property’ altogether.” Op. at 23 (quoting Gov’t’s
Sent. Mem. 7) (emphasis added). But the government’s pre-
sentencing view of the evidence is not the one that the court now
ascribes to the district court. Rather, the court concludes that the
district court implicitly found that Brockenborrugh falsely
denied that withdrawing the extra attention would result in the
loss of all police protection. The government’s pre-sentencing
claim that Brockenborrugh threatened to withdraw “police
attention” from the property does not support the conclusion that
the district court’s finding of a threat to withdraw “extra
attention and protection” clearly implied a finding of a threat to
withdraw extra attention that would result in the loss of all
protection.

How far afield the court has strayed by discovering an
implicit component of the district court’s factual finding is
evident given that it is neither what the district court stated it
found nor what the parties argued. Rewriting the district court’s
findings to match the appellate court’s view of a finding that the
evidence would support runs contrary to this court’s repeated
recognition that such de novo factfinding is inconsistent with its
proper role. See Henry, 557 F.3d at 649-50; Burke, 888 F.2d at
869; Askew, 529 F.3d at 1142 n. 4. Given the district court’s
“spare explanation,” Op. at 22, of its perjury finding, this court
must accept the straight forward finding as meaning what the
district court stated, reflecting the distinction Brockenborrugh
 10

drew in his testimony between “extra” and general police
protection, without recourse to additional words or to an obscure
tension between Brockenborrugh’s trial testimony and his
recorded statement first discovered by this court on appeal.

Because the district court’s factual finding about the threat
was clearly erroneous, a remand is required unless the district
court’s third factual finding in support of the increased sentence
for obstruction of justice is not clearly erroneous.

C. Intimate Relationship. The district court found that in
his trial testimony Brockenborrugh “very obviously denied his
extremely close, not to say intimate relationship with, Ms.
McLeod.” Trial Tr. 24 (Feb. 14, 2008). As noted, this finding
rested on the grounds, identified by the district court, that
Brockenborrugh pretended “that he barely knew her”; “that he
did not know where she lived”; and “that they did not have a
personal relationship.” Id. at 24. This court appears to accept
that the first two subsidiary findings were clearly erroneous.
Op. at 24-25. First, as the government concedes,
Brockenborrugh pretended that he did not know where Ms.
McLeod lived during a pretrial interview with the FBI, not
during his testimony at trial. Second, the court rightly declines
to adopt the government’s suggestion that in describing his
business relationship with Ms. McLeod on direct examination
Brockenborrugh “pretended that he barely knew her.” This
suggestion also appears to have been based on
Brockenborrugh’s pretrial interview with the FBI, rather than his
trial testimony. Such statements to investigators, whether false
or not, cannot support the obstruction of justice enhancement
because the district court made no finding that
Brockenborrugh’s denial to the FBI “significantly obstructed or
impeded the official investigation or prosecution of the [case],”
U.S.S.G. § 3C1.1 cmt. n. 4(g), and the government points to no
record evidence to support such a finding.
 11

Still, while accepting that two of the district court’s
subsidiary findings were clearly erroneous, the court concludes
that the district court did not clearly err in finding that
Brockenborrugh falsely denied his intimate relationship with
Ms. McLeod in the absence of an actual denial by him. It
reasons that the district court could properly conclude that by
trying to pretend that he did not have an intimate relationship
with McLeod, Brockenborrugh constructively denied the
relationship. Op. at 24-25. The record demonstrates otherwise.
On direct examination, Brockenborrugh did not suggest one way
or the other the nature or extent of any personal relationship
with Ms. McLeod after he first met her in 1999, and on cross
examination he readily admitted that he had an intimate
relationship with her beginning in mid or late 2002 and ending
in December 2004 or January 2005.

Prior to Brockenborrugh’s taking the witness stand, the
district court had ruled that the prosecutor could impeach his
testimony by inquiring on cross examination about his intimate
relationship with Ms. McLeod. See Op. at 13. Following this
ruling, Brockenborrugh’s counsel called him as a witness and
asked him to describe “basically [his] relationship” with Ms.
McLeod.4 Brockenborrugh answered, “[w]ell, basically my

4
Defense counsel asked Brockenborrugh whether he knew
the co-defendant Denise McLeod and after he responded “Yes, I do,”
defense counsel asked him to “tell the court, and the jury, and the
prosecutor basically your relationship with Ms. Denise McLeod.”
Brockenborrugh answered:

Well, basically my relationship with Ms. McLeod started in
1999 basically. I was introduced to her by her husband at
Superior Court, because she did taxes. Ms. McLeod did
probably about, I would say, 50 percent of the CSOs and
people around the courthouse’s taxes. Upon, you know, being
introduced to her as far as taxes went, she told she did real
 12

relationship with Ms. McLeod started in 1999 basically,” supra
note 4, before explaining how he had met and come to work
with her in 1999, six years before the charged conspiracy took
place and three years before they had an intimate relationship.
His answer neither referred to their intimate relationship in
2002-04 or early 2005 nor to relevant details about the extent of
their business interactions, such as how often he had purchased
property with Ms. McLeod, cf. Trial Tr. 156 (Oct. 25, 2007), and
how she had assisted his attempts to obtain the property from
Ms. Robinson. His counsel’s following questions did not imply
that by explaining how he had met Ms. McLeod in 1999, he had
failed to answer the question put to him. Rather defense counsel
proceeded to inquire about Ms. McLeod’s management of
Brockenborrugh’s rental properties before turning his attention
to the Robinson property. On cross-examination,
Brockenborrugh testified that he thought he had finished
answering his counsel’s question by describing “basically” how
his relationship with Ms. McLeod had begun.5

estate. So at that point, I was interested in buying — I told
her that I wanted to buy a four unit apartment building.

Trial Tr. 68-69 (Oct. 25, 2007) (emphasis added). Brockenborrugh
then answered questions about the four-unit apartment building and
McLeod’s work as a property manager for him before counsel directed
his attention to his attempted purchase of the property at issue in this
case.
5
On cross-examination, the prosecutor asked Brockenborrugh
about his personal relationship with McLeod:

Q. Now [defense counsel] asked you on direct
examination this morning what your relationship was
with Ms. McLeod. Did you get a chance to finish
that answer?
A. I think I finished it.
 13

Q. You said you met her in 1999?
A. Yes
Q. And you and she began a business relationship?
A. Yes.
Q. Did you, in fact, have a much more personal
relationship with Ms. McLeod?
A. That was later on.
. . .

Q. When did you begin a more personal relationship
with Ms. McLeod?
A. Well, it had to be after she was divorced.
Q. Well, approximately what year do you believe? If
you began a business relationship with her in 1999,
when did you begin a personal relationship with her?
A. Maybe the middle or end of 2002. There was — but
I was not involved in a — I was not her boyfriend or
anything.
Q. But you were having sexual relations with her?
A. Yes, I did.
...
Q. Okay. And so when [defense counsel] asked you on
direct examination about your relationship with Ms.
McLeod and you said in ‘99 I met her and I began a
business relationship, you left out the other part?
A. Left out the other part? In ‘99 — I wasn’t having a
relationship with her [in] ‘99.
Q. Okay. So you did not understand Mr. Rosen’s
question on direct to mean what has been your
relationship with Ms. McLeod since 1999?
A. Right. I did not understand that.
...
Q. You skipped over that part of your relationship with
Ms. McLeod?
A. It was not asked me, what was my relationship, my
personal relationship with her at that time.
 14

When the prosecutor then asked if he had actually had a “much
more personal relationship,” he admitted that he had, stating
“[t]hat was later on.” Supra note 5. He explained that he had
not mentioned the intimate relationship in answering his
counsel’s question because “[he] wasn’t having a[n intimate]
relationship with her [in] ‘99,” id., and that he had not
understood the question to address their relationship after that
time. He then proceeded to describe the intimate relationship in
response to further questions on cross-examination.

As a result, the district court’s finding that on the
witnesstand Brockenborrugh “very obviously denied his
extremely close, not to say intimate relationship, with Ms.
McLeod, ” Trial Tr. 24 (Feb. 14, 2008), is clearly erroneous. No
matter how diligently one searches his trial testimony, he never
denied having this relationship; instead he admitted it. Yet the
court finds no clear error, reasoning that because
Brockenborrugh was “on notice” that his intimate relationship
with Ms. McLeod was “relevant,” “[i]t is fair to infer that
Brockenborrugh was intentionally concealing the true nature of
his relationship when he testified that his prior description [on
direct examination], which made no mention of the romance,
was complete.” Op. at 24. The court’s approach is flawed.

First, Brockenborrugh’s answer on direct examination did
not suggest anything to the jury about the full extent of his
business or any personal relationship with Ms. McLeod after
1999. Nor could his statement on cross examination that he
thought he had finished answering defense counsel’s question.
The transcript of his trial testimony would not support a finding
that as a result of these answers the jury was led into thinking he
was denying having an intimate relationship with Ms. McLeod.

Id. at 133-38 (emphasis added).
 15

The government’s brief unhelpfully characterizes defense
counsel’s question as an “opened-end” invitation to “tell the jury
about his relationship with McLeod,” omitting the word
“basically.” Appellee’s Br. 59; see supra note 5. The brief also
overlooks that Brockenborrugh’s response expressly limited his
description to the relationship’s starting point. Moreover, no
evidence pointed to by the government rebuts the express
limitation in defense counsel’s question and in
Brockenborrugh’s answer by showing that he considered his
intimate relations with Ms. McLeod in 2002-04 or early 2005 to
be a fundamental part of their relationship. Rather, while
admitting they had sex during that time, he testified he was “not
her boyfriend or anything,”supra note 5, and the district court
sustained the defense objection when the prosecutor referred to
their relationship as an “affair,” Trial Tr. 135 (Oct. 25, 2007).

Second, far from demonstrating that the district court’s
finding was not clearly erroneous, the court’s reasoning explains
only why the district court could have found that
Brockenborrugh purposefully did not mention the intimate
relationship until he was asked a question that required him to
do so. Brockenborrugh was “on notice,” Op. at 24, that he could
be impeached on cross examination about his intimate
relationship with Ms. McLeod, see Op. at 13 (quoting the
district court, Trial Tr. 57 (Oct. 25, 2007)), not that he was
expected or somehow obligated to divulge it on direct
examination. Even assuming a better defense strategy would
have been to disclose the intimate relationship on direct
examination, and avoid the almost certain possibility the subject
would be raised during cross-examination and afford the
prosecutor an opportunity to question whether he had been less
than fully responsive to his counsel’s question, this is not the
same as Brockenborrugh denying he and Ms. McLeod had an
intimate relationship. And even assuming that the district court
concluded that Brockenborrugh intended to conceal the true
 16

nature of the relationship, the trial transcript shows that he did
not do what the district court found he did: he did not deny
during his trial testimony the existence of his intimate
relationship with Ms. McLeod. Because the district court’s
finding that he did is without basis in the record, it is clearly
erroneous.

* * * *

In our legal system different roles are assigned to trial and
appellate courts, and it behooves this court not to blur the lines.
The district court found Brockenborrugh’s sentence should be
increased because he perjured himself by falsely denying he
evicted the squatters, threatened to withdraw extra police
attention and protection, and had an intimate relationship with
Ms. McLeod. His denial of evicting the tenants was not false
and he admitted threatening to withdraw the extra police
attention and protection and having an intimate relationship with
Ms. McLeod. To overcome those admissions, the court infers
findings that the district court did not make. Our review is
narrowed by the deference owed to the district court’s factual
findings, but this court cannot affirm on the basis of a finding of
a false denial that the district court could, but did not, make.
Nor can it affirm on the basis of testimony that is not actually
false simply because the district court could permissibly have
found that Brockenborrugh harbored an intention to keep
information from the jury until he was asked directly about it.
Whether the district court would have so found is for the district
court to decide, not for this court to infer.6 Accordingly,

6
The Supreme Court instructed in United States v. Dunnigan,
507 U.S. 87, 96 (1993), that if the defendant objects to a sentence
enhancement under U.S.S.G. § 3C1.1. resulting from his trial
testimony, as occurred here, “a district court must review the evidence
and make independent findings necessary to establish a willful
 17

because none of the three factual findings supporting the two-
level upward enhancement of Brockenborrugh’s sentence for
obstruction of justice under U.S.S.C. § 3C1.1 survive clear error
review, I would remand the case for resentencing; otherwise I
concur.

impediment to or obstruction of justice, or an attempt to do the same,
under the perjury definition we have set out. See U.S.S.G. § 6A1.3
(Nov. 1989); FED. R. CRIM. P. 32(c)(3)(D). See also Burns v. United
States, 501 U.S. 129, 134 (1991). When doing so, it is preferable for
a district court to address each element of the alleged perjury in a
separate and clear finding.”