United States v. Day

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 25, 2008 Decided May 9, 2008

No. 06-3063

UNITED STATES OF AMERICA,
APPELLEE

v.

BRITTIAN PERRY DAY,
APPELLANT

Consolidated with
06-3076

Appeals from the United States District Court
for the District of Columbia
(No. 04cr00358-01)

John W. Karr argued the cause for appellant. With him on
the briefs was Theodore S. Allison.
Sarah T. Chasson, Assistant U.S. Attorney, argued the
cause for appellee. With her on the briefs were Jeffrey A.
Taylor, U.S. Attorney, and Roy W. McLeese, III, Assistant U.S.
Attorney.
Before: TATEL and GARLAND, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
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Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
EDWARDS, Senior Circuit Judge: Appellant Brittian Perry
Day was indicted on multiple counts of mail fraud, wire fraud,
and theft/embezzlement in violation of federal law, and one
count of first degree fraud in violation of the District of
Columbia Code. He was charged with stealing more than $1.5
million by defrauding various employee benefit plans and one
charity after he was retained by these institutions as an insurance
broker. Day claimed that he lacked the requisite mens rea,
because physical and emotional damage to his body and brain
had rendered him unable to form the intent to defraud or
deceive, and he proffered expert testimony to support this
defense. The District Court, however, declined to admit certain
of this expert testimony. United States v. Day, Crim. No. 04-
0358, slip. op. (D.D.C. Mar. 29, 2005); United States v. Day,
Crim. No. 04-0358, slip. op. (D.D.C. Feb. 25, 2005). On April
20, 2005, after a jury trial, appellant was found guilty on six
counts of mail fraud under 18 U.S.C. § 1341; ten counts of wire
fraud under 18 U.S.C. § 1343; five counts of theft or
embezzlement from an employee benefit plan under 18 U.S.C.
§ 664; and one count of fraud in the first degree under D.C.
Code §§ 22-3221 and 22-3222. See United States v. Day, 433
F. Supp. 2d 54 (D.D.C. 2006). The District Court denied the
Government’s request to subject appellant to criminal forfeiture
for his mail and wire fraud offenses, and refused to order a
forfeiture money judgment on the theft/embezzlement offenses.
United States v. Day, 416 F. Supp. 2d 79 (D.D.C. 2006).
Appellant was sentenced to an aggregate term of imprisonment
of 108 months, after which the District Court denied his motion
for release pending appeal. 433 F. Supp. 2d at 55 (denying
Day’s motion “because his appeal . . . [did] not raise a
substantial question of law or fact likely to result in reversal, a
new trial, or a reduced sentence of imprisonment”).
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Appellant now challenges the District Court’s decisions to
exclude the expert testimony relating to his mental state; he also
contests his sentence on the ground that the District Court
incorrectly calculated his base and adjusted offense levels. The
Government cross-appeals, claiming that the District Court erred
in holding that the Government was not entitled to forfeiture on
the mail and wire fraud charges, and also in denying entry of a
money judgment on the charges to which the Government was
entitled to forfeiture. We reject appellant’s appeals, and uphold
both the District Court’s decisions to exclude the disputed expert
testimony and the sentence imposed by the court. However, we
reverse the District Court decisions denying the Government’s
requests for forfeiture and a money judgment.
BACKGROUND
Over a 10-year period starting in 1994, Brittian Perry Day
caused losses of $1.5 million to multiple employee benefit plans
(“the Plans”) and to a charity called Food and Friends (“F&F”).
Appellant was retained by the Plans and by F&F to procure
insurance for them and their trustees. The Plans mailed
appellant checks, payable to appellant’s wholly-owned
insurance company (the “A&D Insurance Agency”), to cover the
cost of purchasing the policies that he recommended to them.
However, instead of actually obtaining insurance policies for the
Plans or F&F, appellant deposited the proceeds into an account
held in the name of the A&D Insurance Agency and spent the
money on himself. When the Plans asked appellant for evidence
of their coverage, he faxed them fake coverage declarations. He
also sent the Plans fake renewal applications and reminders to
the Plans, and contacted the Plans’ billing departments to
request prompt payment. Appellant also created fake
declaration pages by covering over the old policy terms with
correction fluid and retyping them with new policy numbers.
When the Federal Bureau of Investigation (“FBI”) searched
appellant’s home, where his business was located, it found blank
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declaration pages, declaration pages with “wite-out” on them,
and notebooks documenting his activities.
In July 2002, after one of the Plans incurred a claim that
should have been, but was not, covered by the insurance it had
obtained from appellant, it quickly discerned that it had no
insurance. The Plan notified the Department of Labor, which
began investigating appellant’s business conduct.
In December 2003, F&F purchased what it thought was a
pre-paid, three-year insurance policy through appellant. By
February 2004, F&F had written $300,000 in checks to A&D
Insurance Agency, unaware that appellant had obtained only a
one-year policy for F&F that cost approximately $100,000.
F&F did not learn until August 2004 that appellant was the
subject of a criminal investigation.
The evidence at trial also indicated that appellant had taken
steps to protect his ill-gained assets. In July 2002, appellant
directed his sister to open a bank account under the name of a
fictitious company called Northern Cape Insurance Associates,
because he was afraid the FBI was going to seize his other
accounts. Thereafter, appellant did business through that bank
account. Appellant asked another individual to conceal the
existence of his ownership of several beach homes in Rehoboth
Beach, Delaware by hiding documents revealing his ownership
interests in the homes and saying nothing to the FBI about his
interests. The Government contended that these actions “helped
appellant hide his assets from forfeiture, minimized his civil
liability to the Plans, and gave the appearance of
impoverishment, which, in his mind, might persuade the
Government not to take significant criminal action against him.”
Br. for Appellee at 6.
Appellant’s defense was that “the depression that followed
his [business and domestic] partner’s death [in 1990], coupled
with business reverses . . . and severe physical and emotional
 5

damage to his body and brain associated with the depression,
vascular dementia, three strokes, in 1996, 1999 and 2001, left
him sufficiently impaired that he lacked the mens rea to form the
specific intent to commit the crimes of which he was convicted.”
Br. for Appellant at 5. To bolster his defense, appellant
proffered the testimony of four expert witnesses who he claimed
would attest to his inability to form the requisite mens rea to
commit the crimes as charged. On February 24, 2005, after a
three-day Daubert hearing, see Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), to determine
whether the proffered expert testimony was relevant and reliable
enough to be admitted as evidence, the District Court excluded
the first three witnesses – Drs. Abbas Alavi, Arthur Horton, and
Edgar Garcia-Rill. On March 25, 2005, after a two-day Daubert
hearing, the District Court excluded the testimony of the final
expert witness, Dr. Michael Spodak. However, the trial judge
allowed some friends, relatives, and associates of appellant to
testify at trial about “their observations of [appellant’s] physical,
mental and emotional deterioration over the decade following
his partner’s death and the apparent changes in his capacity to
deal with routine business and social activities after his strokes
began in 1996.” Br. for Appellant at 17. On April 20, 2005, the
jury found appellant guilty on all counts.
The Government’s superseding indictment filed on August
27, 2004 included forfeiture allegations; the Government
originally sought forfeiture of appellant’s primary residence in
Washington, D.C., his beach home in Rehoboth Beach,
Delaware, and his Mercedes-Benz automobile. The Government
also sought entry of a money judgment against appellant in the
amount of $1.5 million – the total sum of money allegedly
constituting or derived from proceeds of appellant’s crimes.
After the jury rendered its guilty verdict on the substantive
charges, appellant waived his right to a jury trial on the
Government’s forfeiture claims. The Government asked the
District Court to enter the money judgment of $1.5 million and
 6

to order the forfeiture of appellant’s primary residence as a
substitute asset under 21 U.S.C. § 853(p) in satisfaction of the
money judgment. Counsel for Mr. Day did not challenge the
total amount sought by the Government in forfeiture, arguing
instead that there was no basis in criminal forfeiture law for the
Government to obtain a personal money judgment against
appellant, and that the mail and wire fraud statutes cited in
support of the Government’s forfeiture claim did not apply to
the offenses of which appellant had been convicted.
On February 22, 2006, the District Court ruled in
appellant’s favor on the forfeiture issues, holding that the mail
and wire fraud statutes did not support a criminal forfeiture
action against appellant for his crimes, and that although
criminal forfeiture was appropriate for the money stemming
from the theft/embezzlement charges, the applicable statutes did
not allow the District Court to enter a money judgment. 416 F.
Supp. 2d at 87, 91. On April 6, 2006, the District Court
sentenced appellant to an aggregate term of 108 months’
imprisonment. This appeal and cross-appeal followed. Day
appeals the District Court’s decisions to exclude the disputed
expert testimony and the District Court’s calculation of his
sentence. The Government cross-appeals the District Court’s
decisions rejecting forfeiture and denying it a money judgment,
claiming that criminal forfeiture is available for the mail and
wire fraud charges, and also that entry of a money judgment is
appropriate when criminal forfeiture is involved.
ANALYSIS
I. STANDARDS OF REVIEW
We have made it clear that, under Federal Rule of Evidence
702, “[a] district court has broad discretion regarding the
admission or exclusion of expert testimony, and reversal of a
decision on these matters is appropriate only when that
discretion has been abused.” Joy v. Bell Helicopter Textron,
 7

Inc., 999 F.2d 549, 567 (D.C. Cir. 1993). This standard of
review complies with the Supreme Court’s admonition that in
reviewing challenges to the admissibility or exclusion of expert
testimony, appellate courts must afford trial judges great
discretion. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142-43
(1997). The Court has also made it clear that, under Daubert,
trial judges have “broad latitude to determine” the “reliability”
of expert testimony. Kumho Tire Co., Ltd. v. Carmichael, 526
U.S. 137, 153 (1999). Even when a trial court’s decision to
exclude expert testimony is based on a party’s failure to comply
with rules of discovery, the matter still requires “an exercise of
discretion by the trial court.” United States v. Johnson, 970 F.2d
907, 910 (D.C. Cir. 1992).
Our review of the District Court’s sentencing decisions is
guided by a three-part test. “Purely legal questions are reviewed
de novo; factual findings are to be affirmed unless ‘clearly
erroneous’; and we are to give ‘due deference’ to the district
court’s application of the guidelines to facts.” United States v.
Goodwin, 317 F.3d 293, 297 (D.C. Cir. 2003) (alteration, other
internal quotation marks omitted).
The District Court’s constructions of the applicable statutes
covering criminal forfeiture – which implicate when criminal
forfeiture is an appropriate penalty and whether money
judgments are an appropriate means of enforcing criminal
forfeiture – are legal conclusions that we review de novo. See
United States v. Vampire Nation, 451 F.3d 189, 198 (3d Cir.
2006); United States v. Casey, 444 F.3d 1071, 1073 (9th Cir.
2006).
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II. THE DISTRICT COURT’S EXCLUSION OF EXPERT
TESTIMONY
A. Exclusion of Testimony Under Federal Rule of
Evidence 702
On February 25, 2005, the District Court issued an order
excluding the testimony of Drs. Horton, Alavi, and Garcia-Rill
on the grounds that it was
unreliable and unhelpful (or irrelevant) under the
requirements embodied in Rule 702 of the Federal Rules of
Evidence and the Supreme Court’s decision in
[Daubert]. . . . [T]he Court also finds that the proffered
testimony fails to pass muster under the case law governing
the limited circumstances in which mens rea testimony is
permitted by the courts, as articulated by this Circuit in
United States v. Childress, 58 F.3d 693 (D.C. Cir. 1995).
Day, slip. op. at 1-2 (Feb. 25, 2005). Because we find that the
exclusion was appropriate under the Federal Rules of Evidence
(“FRE”), we need not address the District Court’s alternative
rationale for the exclusion.
The exclusion of Dr. Garcia-Rill’s testimony was the
primary issue in the District Court. As the trial judge explained,
“Dr. Alavi and Dr. Horton[] did not purport to offer any
diagnosis of Mr. Day, but simply reported and explained the
results of examinations . . . they had conducted on him. Their
expert testimony thus did not stand alone; rather, Dr. Garcia-Rill
incorporated their results into his ‘diagnosis’ of Mr. Day.” Day,
433 F. Supp. 2d at 56 n.2. Put another way, the trial judge
described the three experts as “three legs of a stool, and the stool
cannot stand unless all three legs are there. And Dr. Garcia-Rill
is the weak leg in the stool.” Hearing Tr. (2/24/05) at 39. Day
does not dispute that if, as the District Court found, Dr. Garcia-
Rill’s testimony was properly excluded under FRE 702, then it
 9

follows a fortiori that the proffered testimony from Dr. Alavi
and Dr. Horton was also properly excluded.
FRE 702 states:
If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise, if (1)
the testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and methods,
and (3) the witness has applied the principles and methods
reliably to the facts of the case.
FED. R. EVID. 702. In Daubert, the Supreme Court explained
that, in applying FRE 702, “the trial judge must ensure that any
and all scientific testimony or evidence admitted is not only
relevant, but reliable.” 509 U.S. at 589. Scientific testimony is
reliable if it is based on “‘scientific . . . knowledge.’ The
adjective ‘scientific’ implies a grounding in the methods and
procedures of science. Similarly, the word ‘knowledge’
connotes more than subjective belief or unsupported
speculation.” Id. at 590 (footnote omitted). In short,
“[p]roposed testimony must be supported by appropriate
validation – i.e., ‘good grounds,’ based on what is known.” Id.
Daubert does not require that “judges become scientific
experts, much less evaluators of the persuasiveness of an
expert’s conclusion.” Ambrosini v. Labarraque, 101 F.3d 129,
134 (D.C. Cir. 1996). However, in applying FRE 702, trial
judges should focus on experts’ “principles and methodology,
not on the conclusions that they generate.” Daubert, 509 U.S.
at 595. Although Daubert lists a number of factors that a court
may consider in determining whether to admit or exclude expert
testimony, the Supreme Court made it clear that “[t]he inquiry
envisioned by Rule 702 is . . . a flexible one. Its overarching
 10

subject is the scientific validity – and thus the evidentiary
relevance and reliability – of the principles that underlie a
proposed submission.” Id. at 594-95.
Finally, a district court’s admission or exclusion of evidence
under FRE 702 is subject only to limited review:
The trial court must have the same kind of latitude in
deciding how to test an expert’s reliability, and to decide
whether or when special briefing or other proceedings are
needed to investigate reliability, as it enjoys when it decides
whether that expert’s relevant testimony is reliable. Our
opinion in Joiner makes clear that a court of appeals is to
apply an abuse-of-discretion standard when it “review[s] a
trial court’s decision to admit or exclude expert testimony.”
522 U.S. at 138-139. That standard applies as much to the
trial court’s decisions about how to determine reliability as
to its ultimate conclusion. Otherwise, the trial judge would
lack the discretionary authority needed both to avoid
unnecessary “reliability” proceedings in ordinary cases
where the reliability of an expert’s methods is properly
taken for granted, and to require appropriate proceedings in
the less usual or more complex cases where cause for
questioning the expert’s reliability arises. . . . Thus, [under
Daubert, an assessment of the reliability of expert
testimony] in a particular case is a matter that the law grants
the trial judge broad latitude to determine.
Kumho Tire, 526 U.S. at 152-53. Given these legal standards,
we find that the District Court’s decision to exclude Dr. Garcia-
Rill’s testimony was not an abuse of discretion.
Dr. Garcia-Rill’s report concluded that
Mr. Day’s clinical Depression, demonstrated brain damage,
and decreased blood flow contributed to impaired critical
judgment in daily decisions. . . . There is considerable
evidence showing that the frontal lobes in man are
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responsible for volition, that is, the performance of
deliberate actions. . . . These are precisely the parts of the
cortex affected by the Major Depression and
“hypofrontality” in Mr. Day, in whom volition and conflict
decisions are impaired. Volition is the scientific
equivalent[] of the legal term “intent.” Therefore, I
conclude that Mr. Day’s voluntary and deliberate actions
were substantially impaired by his medical condition, to the
extent that to a high probability [he] could not have
appreciated the repercussions of his actions or purposely
intended to violate the law.
Joint Appendix (“JA”) (Vol. 1) at 165 (Garcia-Rill Report).
However, the bases underlying Dr. Garcia-Rill’s conclusions
were tenuous at best. The doctor’s report and findings were
premised in large part on the idea that appellant suffered from
“Major Depression” – a conclusion that was not supported by
appellant’s medical records nor established by the other two
experts. Dr. Garcia-Rill admitted on cross-examination that
there was no psychiatric evidence of depression, such as an
actual diagnosis from a clinician or evidence that appellant was
prescribed antidepressants. As a neuroscientist (as opposed to
a psychologist or psychotherapist), Dr. Garcia-Rill was unable
himself to diagnose Day as having depression. Hearing Tr.
(2/23/05) at 85-97. The trial judge thus found that Dr. Garcia-
Rill’s testimony was generally unreliable, stating that “[t]here’s
no predicate that’s reliable for his conclusions. They don’t exist
in what he says he relies on. . . . He made basic mistakes in his
report, [mistakes about] the kind of medication that Mr. Day was
on, [his] refusal to consider [Day’s] past behavior in the outside
world, the definition of the kind of depression it was.” Hearing
Tr. (2/24/05) at 55.
Most important, the District Court found that Dr. Garcia-
Rill’s testimony failed to illuminate Day’s condition prior to any
of the experts’ examinations of Day in 2004. The indictment
 12

against Day alleged that “[f]rom in or about March, 1994, and
continuing through in or about August, 2004, [Day] devised and
intended to devise a scheme and artifice to defraud and to obtain
money and property by means of false and fraudulent pretenses,
representations, and promises.” JA (Vol. 1) at 52 (Superseding
Indictment). The specific crimes of which appellant was
convicted involved fraudulent behavior spanning 1999-2004.
Even assuming, arguendo, that Dr. Garcia-Rill’s conclusions
were an accurate assessment of Day’s mental capabilities in
2004, there was no concrete physical evidence of any specific
impairment (or the degree of impairment) Day suffered during
the earlier years of his unlawful scheme. The trial judge thus
found that Dr. Garcia-Rill “does nothing more than surmise or
speculate as to what Mr. Day’s condition may have been at any
time prior to his November, 2004, exam by Dr. Horton.”
Hearing Tr. (2/24/05) at 55. The trial judge noted further that
“all of the testimony, as Dr. Alavi and Dr. Horton candidly
admit, all relate to Day’s condition in 2004 and 2005. . . . Dr.
Alavi categorically declined to make any assessment of Mr.
Day’s brain condition at any time before [Dr. Alavi conducted
his Positron Emission Tomography] scan.” Id. at 57. In other
words, even if the experts had made a compelling case that Day
lacked the ability to form the intent to deceive as of 2004, they
were unable to say that Day lacked this ability in 1994, when the
scheme first originated, or in 1999, when the earliest fraud
specifically alleged in the indictment began.
Given the problems with Dr. Garcia-Rill’s conclusions –
and the temporal limitations of the expert testimony from Drs.
Alavi and Horton, on which Dr. Garcia-Rill’s conclusions were
based – the District Court concluded that the experts’ testimony
had to be excluded under FRE 702 and Daubert. The trial judge
found that the expert testimony would “confuse the trier-of-
fact,” that it was not “the product of reliable principles and
methods,” and that the witnesses had not “appl[ied] the
principles and methodology reliably to the facts of the case.” Id.
 13

at 59-60. The trial judge’s determination that the proffered
expert testimony “really goes beyond anything that would meet
the Daubert test and be reliable,” id. at 60, was not an abuse of
discretion.
B. Exclusion of Testimony Under Federal Rule of
Criminal Procedure 16
On March 29, 2005, the District Court issued an order
excluding the testimony of Dr. Michael Spodak on the grounds
that the defense had failed to comply with Federal Rule of
Criminal Procedure 16(b)(1)(C)(ii), and, in the alternative, held
that “the proffered evidence fails to comply with the standards
for admissibility set forth . . . in . . . United States v. Childress,
58 F.3d 693, 730 (D.C. Cir. 1995).” Day, slip. op. at 1 (Mar. 29,
2005). The District Court has made clear, however, that “the
primary ground for exclusion was defendant’s failure to comply
with Rule 16.” Day, 433 F. Supp. 2d at 58. Because we find
that the District Court did not abuse its discretion in excluding
the expert testimony under Rule 16, we need not address the
alternative basis for the exclusion.
Rule 16 governs discovery and disclosure in criminal
proceedings, and states in relevant part that if “the defendant has
given notice under [Federal Rule of Criminal Procedure] 12.2(b)
of an intent to present expert testimony on the defendant’s
mental condition,” FED. R. CRIM. P. 16(b)(1)(C)(ii), then the
defendant also “must, at the government’s request, give to the
government a written summary of any testimony that the
defendant intends to use under Rules 702, 703, or 705 of the
Federal Rules of Evidence as evidence at trial.” FED. R. CRIM.
P. 16(b)(1)(C). This summary “must describe the witness’s
opinions, the bases and reasons for those opinions, and the
witness’s qualifications.” Id.
After appellant filed his notice under Rule 12.2 on
November 17, 2004, the Government repeatedly requested
 14

discovery regarding appellant’s mental condition. Nevertheless,
it was only at the status conference on January 25, 2005 that the
Government learned the names of the three experts that
appellant intended to call as witnesses. Hearing Tr. (1/25/05) at
35-37. The Government then filed a motion on January 26,
2005 to compel production of the expert reports submitted by
Drs. Horton, Alavi, and Garcia-Rill because the defendant had
not made them available. JA (Vol. 1) at 88-93. The
Government received Dr. Garcia-Rill’s report only
approximately 48 hours before the scheduled Daubert hearing.
See Hearing Tr. (3/25/05) at 6-7. After the District Court
excluded the testimony of the first three experts, the
Government filed a motion on March 7, 2005 to strike
appellant’s Rule 12.2 Notice and to exclude expert testimony
concerning appellant’s mental condition, because appellant had
not yet identified an expert who could testify at the trial that was
scheduled to begin three weeks later. A week later, at a March
14, 2005 hearing on the Government’s motion, defense counsel
announced that appellant had retained Dr. Spodak to testify
instead of Dr. Garcia-Rill. The Government received Dr.
Spodak’s report on March 17 and moved to strike it because the
two-page report was so vague that it did not meet the standards
set forth in Rule 16. See JA (Vol. 1) at 203-04 (Spodak Report).
The District Court proceeded to hold a Daubert hearing on
March 21 and 24, 2005, to determine whether to admit Dr.
Spodak’s testimony. It was only during the Government’s
cross-examination on March 24, 2005 that Dr. Spodak finally
offered a diagnosis of appellant’s mental condition. Hearing Tr.
(3/24/05) at 16-17, 53. The District Court granted the
Government’s motion to exclude Dr. Spodak’s testimony on
March 25, 2005, primarily as a sanction for violating Rule 16.
We hold that the District Court did not abuse its discretion
when it excluded Dr. Spodak’s testimony. There are several
compelling reasons that support this conclusion. First, Dr.
Spodak’s report did not meet the requirements of Rule 16. The
 15

District Court correctly pointed to the Advisory Committee
comments to the 1993 Amendments to Rule 16 – amendments
that had included the addition of Rule 16(b)(1)(C) – during his
discussion of the deficiencies of Dr. Spodak’s report. Hearing
Tr. (3/25/05) at 11-12. The Advisory Committee stated that
under the new amendments, “the requesting party is to be
provided with a summary of the bases of the expert’s
opinion. . . . That should cover not only written and oral reports,
tests, reports, and investigations, but any information that might
be recognized as a legitimate basis for an opinion under [FRE]
703, including opinions of other experts.” FED. R. CRIM. P. 16
advisory committee’s note (1993 amendments). Although Dr.
Spodak’s report provided a page-long list of tests he had
performed on Day, interviews he had conducted, and other
expert reports he had read, the report failed to state what Dr.
Spodak had concluded from any individual test result, interview,
or expert report. That failure, in combination with the absence
of a clinical diagnosis in the report, made it virtually impossible
for the Government to engage in meaningful cross-examination
at the Daubert hearing. “Upon receipt of Dr. Spodak’s report,
the government knew no more about appellant’s alleged mental
deficiencies than it did when appellant filed his Rule 12.2 notice
four months earlier.” Br. for Appellee at 32. Given that the
purpose of Rule 16(b)(1)(C) is to “minimize surprise that often
results from unexpected expert testimony, reduce the need for
continuances, and to provide the opponent with a fair
opportunity to test the merit of the expert’s testimony through
focused cross-examination,” FED. R. CRIM. P. 16 advisory
committee’s note (1993 amendments), the District Court did not
err when it determined that Dr. Spodak’s report violated Rule
16.
Second, it was not an abuse of discretion for the District
Court to conclude that the appropriate sanction for the Rule 16
violation was the exclusion of Dr. Spodak’s testimony. Trial
courts have the discretion to weigh various options in deciding
 16

how to address a party’s violation of a discovery rule. “If a
sanction is thought necessary [under Rule 16], it is for the court
to decide whether to order a continuance, or to prohibit the party
from introducing in evidence the material not disclosed, or to
make whatever other order it deems just under the
circumstances.” CHARLES ALAN WRIGHT, 2 FEDERAL PRACTICE
& PROCEDURE: CRIMINAL § 260, at 196-201 (3d ed. 2000)
(footnotes omitted). The Supreme Court has held that exclusion
of evidence and testimony can be a proper sanction, even against
a criminal defendant. Taylor v. Illinois, 484 U.S. 400, 414-16
(1988). Moreover, we have rejected the suggestion that Taylor
requires a trial court to conduct “some sort of ‘least restrictive
alternative’ analysis” before excluding evidence as a sanction.
Johnson, 970 F.2d at 911.
In Johnson, we specifically held that, in order to justify the
exclusion of evidence as a sanction for failure to comply with a
discovery rule, the trial judge need not find that the
noncomplying counsel acted in “bad faith.” Id. We remanded
the case in Johnson only because the trial court judge had gone
out of his way to praise the good faith efforts of the
noncomplying attorney. Although this court stated that it “could
normally affirm on [the Johnson] record,” the fact that “the
[trial] judge’s only factual finding (good faith of counsel) [was]
slightly counter to the decision to exclude” caused us to remand
the case to allow the trial judge to expressly exercise the
discretion afforded under Taylor. Id. at 912.
In this case, unlike the circumstances under review in
Johnson, the District Court did not believe that Day’s counsel
had acted in good faith. Indeed, when he granted the
Government’s motion to exclude Dr. Spodak’s testimony, the
trial judge stated that this case involved “willful conduct on the
part of the defense. And judgments were made along the way
that were either intended to or had to be understood as having
the effect of putting the government in a box that was prejudicial
 17

and unfair and which had an impact [on] the integrity of the
adversary process.” Hearing Tr. (3/25/05) at 14; see also Day,
433 F. Supp. 2d at 57 (stating that the defendant had “failed
manifestly to comply” with Rule 16). As noted above, Dr.
Spodak’s tardy report did not meet the standards of Rule 16 and
he offered no diagnosis until less than a week before trial. In
these circumstances, the District Court did not abuse its
discretion in excluding Dr. Spodak’s testimony.
III. SENTENCING
Appellant claims that the District Court made several errors
in calculating his sentence under the United States Sentencing
Guidelines (“U.S.S.G.”). For the reasons indicated below, we
find that none of appellant’s claims has any merit.
A. Base Offense Level
Under U.S.S.G. § 2B1.1(a)(1), appellant’s base offense
level was 7. However, the District Court increased the offense
by 16 levels under U.S.S.G. § 2B1.1(b)(1)(I) after finding that
appellant was responsible for losses of more than $1 million.
Appellant contends that, because the trial judge’s loss
determination was substantially more than the total loss alleged
in the counts included in the superseding indictment, the base
sentencing level was erroneous and violated his Fifth
Amendment right to due process. Appellant’s claim fails for
two reasons.
First, the Supreme Court’s decision in United States v.
Booker, 543 U.S. 220 (2005), rendered the Sentencing
Guidelines advisory, and stated that “when a trial judge
exercises his discretion to select a specific sentence within a
defined range, the defendant has no right to a jury determination
of the facts that the judge deems relevant.” Id. at 233.
Appellant’s sentence of nine years fell considerably below the
statutory maxima for mail and wire fraud (thirty years) and was
 18

well within the District Court’s sentencing discretion. 18 U.S.C.
§§ 1341 and 1343.
Second, after the trial judge determined the “appropriate
offense guideline” under U.S.S.G. § 1B1.2(b), he had discretion
to reasonably determine “relevant conduct” as defined in
U.S.S.G. § 1B1.3. “Relevant conduct,” for the purposes of the
base offense that appellant was charged with, includes conduct
that is “part of the same course of conduct or common scheme
or plan as the offense of conviction.” U.S.S.G. § 1B1.3(a)(2).
We defer to the District Court’s determination of what
constitutes “the same course of conduct or common scheme,”
“[b]ecause the question of whether conduct in a given case
constitutes a ‘course of conduct’ is inherently fact intensive.”
United States v. Jackson, 161 F.3d 24, 28 (D.C. Cir. 1998).
Moreover, “relevant conduct” only needs to be established by a
preponderance of the evidence for the trial judge to permissibly
take said conduct into account in a sentencing determination.
United States v. Dorcely, 454 F.3d 366, 371-3 (D.C. Cir. 2006).
The trial judge’s findings were neither clearly erroneous,
contrary to law, nor an abuse of discretion. We therefore hold
that the trial judge committed no error in determining that
appellant had caused a loss greater than $1 million and in
increasing appellant’s base offense level.
B. Obstruction of Justice
The Sentencing Guidelines advise that a trial judge may
increase a defendant’s sentence by two levels if it is determined
that the defendant “willfully obstructed or impeded, or
attempted to obstruct or impede” the administration of justice
with respect to the investigation. U.S.S.G. § 3C1.1. It does not
matter that a defendant was not separately charged with
obstruction of justice. U.S.S.G. § 1B1.4 states that, “[i]n
determining the sentence to impose within the guideline range
. . . the court may consider, without limitation, any information
concerning the background, character and conduct of the
 19

defendant, unless otherwise prohibited by law.” Given the
testimony by Government witnesses about the lengths to which
appellant had gone to hide his income and assets, the District
Court’s determination that appellant was guilty of the
obstruction of justice was not error under the due deference
standard.
C. Abuse of Trust
The Sentencing Guidelines also advise that a trial judge
may increase a defendant’s sentence by two levels if it is
determined that the defendant “abused a position of public or
private trust . . . in a manner that significantly facilitated the
commission or concealment of the offense.” U.S.S.G. § 3B1.3;
see also U.S.S.G. § 3B1.3 app. n.1. Whether Day abused a
position of trust within the meaning of U.S.S.G. § 3B1.3 is a
question of law that we review de novo. United States v. West,
56 F.3d 216, 219 (D.C. Cir. 1995). We have already determined
that appellant operated as a fiduciary of the employee benefit
plans he embezzled from, under both the common law and
statutory definitions of “fiduciary.” Chao v. Day, 436 F.3d 234
(D.C. Cir. 2006) (stating in part that “[a]s the plans’ agent, Day
was bound by a broker’s common law fiduciary duty to
faithfully deliver the plans’ assets to the insurer,” id. at 237, and
noting that “Day was far more than a mere custodian [of the
plans’ assets]; he was a broker who solicited, accepted, and then
pilfered the plans’ assets by reneging on his promise to purchase
insurance for the plans’ members,” id. at 238). In light of our
earlier decision, we uphold the District Court’s determination
that appellant abused a position of trust and thus warranted the
sentencing enhancement contained in U.S.S.G. § 3B1.3.
D. Number of Victims
The Government sought to have appellant’s sentence
increased by four levels under U.S.S.G. § 2B1.1(b)(2)(B),
because it alleged that there were more than 50 victims of
 20

appellant’s embezzlement. However, the District Court only
increased appellant’s sentence by two levels under U.S.S.G.
§ 2B1.1(b)(2)(A) (more than 10 victims), because the trial judge
counted only the individual plans, not every member of said
plans, as “victims.” Although fewer than 10 plans were
identified in the superseding indictment, the District Court found
that, when all of his “relevant conduct” was considered,
appellant had in fact stolen from more than 10 plans. See
Hearing Tr. (4/6/06 PM) at 14-17. The District Court’s
determination of appellant’s “relevant conduct” was not clearly
erroneous.
IV. CRIMINAL FORFEITURE
After the jury found appellant guilty of the substantive
charges and appellant waived his right to have a jury determine
whether the Government was entitled to the forfeiture sought,
the Government decided that, in lieu of seeking specific property
from appellant, it would pursue a $1.5 million money judgment.
The Government relied only on the first forfeiture allegation in
the superseding indictment to support its $1.5 million request.
This allegation incorporated the entire mail and wire fraud
scheme alleged in Counts 1-16 of the indictment. JA (Vol. 1) at
50-73 (Superseding Indictment); Br. for Appellee at 44-46.
Appellant did not challenge the amount of money that the
Government sought to recover, though he challenged the
Government’s ability to claim forfeiture on the mail and wire
fraud counts and the Government’s request for a money
judgment in the amount of the forfeited property. The District
Court held that forfeiture was appropriate on the embezzlement
charges, but agreed with appellant that criminal forfeiture was
unavailable on the mail and wire fraud counts. Day, 416 F.
Supp. 2d at 85-88.
Determining whether forfeiture is an appropriate sanction
for mail and wire fraud involves unraveling a series of tangled
statutes. During the time period encompassing appellant’s trial
 21

and sentencing, 28 U.S.C. § 2461(c) stated that, “[i]f a forfeiture
of property is authorized in connection with a violation of an
Act of Congress, and any person is charged . . . with such
violation but no specific statutory provision is made for criminal
forfeiture upon conviction, the Government may include the
forfeiture in the indictment . . . and upon conviction, the court
shall order the forfeiture of the property in accordance with the
procedures set forth in [21 U.S.C. § 853].” 28 U.S.C. § 2461(c)
has since been amended so that its application to general mail
and wire fraud charges can no longer be disputed. See USA
PATRIOT Improvement and Authorization Act of 2005, Pub. L.
No. 109-177, § 410, 120 Stat. 192 (2006). However, the newly
amended statute was not in effect when Day was arrested, tried,
and sentenced. The Government argues that this is no
impediment to forfeiture, because § 2461(c) “requires the Court
to order criminal forfeiture where a civil forfeiture is authorized,
and [18 U.S.C. §] 981(a)(1)(C) in turn supplies the necessary
authorization in this case.” Day, 416 F. Supp. 2d at 86.
18 U.S.C. § 981(a)(1)(C) subjects property to civil
forfeiture if it is obtained in violation of various listed statutes
or if it is obtained as a result of “any offense constituting
‘specified unlawful activity’ (as defined in section 1956(c)(7) of
this title).” Meanwhile, 18 U.S.C. § 1956(c)(7)(A) defines
“specified unlawful activity” as including “any act or activity
constituting an offense listed in § 1961(1) of this title.” And,
finally, 18 U.S.C. § 1961(1)(B) – part of the Racketeer
Influenced and Corrupt Organizations (“RICO”) statute –
defines “racketeering activity” to include any act that is
“indictable under any of the following provisions of title 18,”
including sections 664 (the embezzlement/theft from employee
benefit plans statute), 1341 (the mail fraud statute) and 1343 (the
wire fraud statute). In short, the Government argues that
criminal forfeiture is authorized for general violations of the
mail and wire fraud statutes, as well as for embezzlement from
employee benefit plans.
 22

The District Court disagreed, noting that 28 U.S.C.
§ 2461(c) allowed the Government to seek criminal forfeiture
only when “no specific statutory provision is made for criminal
forfeiture upon conviction.” The District Court found that there
was a specific statutory provision applicable to criminal
forfeiture in mail and wire fraud cases: 18 U.S.C.
§ 982(a)(2)(A) states that “[t]he court, in imposing sentence on
a person convicted of a violation of [the mail or wire fraud
statutes, §§ 1341 or 1343], affecting a financial institution, shall
order that the person forfeit to the United States any property
constituting, or derived from, proceeds the person obtained
directly or indirectly, as the result of such violation.” According
to the District Court, since appellant’s mail and wire fraud
unquestionably did not affect financial institutions,
§ 982(a)(2)(A) would not authorize criminal forfeiture in
appellant’s case; by the same token, according to the District
Court, § 982(a)(2)(A)’s specific application to mail and wire
fraud also prevented § 2461(c) from being used to secure
criminal forfeiture in cases of this sort, involving general mail
and wire fraud. As the District Court stated,
The plain language of 28 U.S.C. § 2461(c) permits the
government to seek criminal forfeiture of the property of a
convicted person that would be subject to civil forfeiture,
provided that “no specific statutory provision is made for
criminal forfeiture upon conviction.” Here, 18 U.S.C.
§ 982(a)(2)(A) is just such a specific statutory provision,
authorizing criminal forfeiture upon conviction of mail and
wire fraud. By its terms, therefore, Section 2461(c) does
not authorize criminal forfeiture of mail and wire fraud
proceeds.
Day, 416 F. Supp. 2d at 86.
We disagree with the District Court’s reading of the
relevant statutes. We find that criminal forfeiture is available
for general mail and wire fraud violations, not merely those
 23

affecting financial institutions. We note that the District Court’s
decision in Day relied heavily on another district court’s opinion
– United States v. Croce, 345 F. Supp. 2d 492 (E.D. Pa. 2004)
(Croce II) – which was overruled by the Third Circuit in
Vampire Nation, 451 F.3d 189 (3d Cir. 2006). We agree with
the Third Circuit’s interpretation of the relevant statutes:
To interpret the statute, we begin with its plain language.
Ascribing plain meaning to the words of 28 U.S.C.
§ 2461(c), criminal forfeiture is not permitted unless (1) a
substantive provision exists for civil forfeiture of the
criminal proceeds at issue; and (2) there is no specific
statutory provision that permits criminal forfeiture of such
proceeds. Thus, we read the statute, enacted eight years
after Congress last amended 18 U.S.C. § 982(a)(2), as a
“bridge” or “gap-filler” between civil and criminal
forfeiture, in that it permits criminal forfeiture when no
criminal forfeiture provision applies to the crime charged
against a particular defendant but civil forfeiture for that
charged crime is nonetheless authorized. Accordingly,
under our reading, § 2461(c) permits criminal forfeiture for
general mail fraud because (1) 18 U.S.C. § 981(a)(1)(C)
authorizes civil forfeiture for general mail fraud; and (2) no
statutory provision specifically authorizes criminal
forfeiture for general mail fraud.
Vampire Nation, 451 F.3d at 199 (internal citation, footnote
omitted). See also United States v. Jennings, 487 F.3d 564, 584-
85 (8th Cir. 2007) (holding that § 2461 allows for criminal
forfeiture of the proceeds of general mail fraud). We find
support for this reading of the applicable statutes in the
legislative history of the Civil Asset Forfeiture Reform Act of
2000 (“CAFRA”), which added subsection (c) to 28 U.S.C.
§ 2461. The House Report that accompanied an earlier version
of CAFRA stated that:
 24

Current law limits civil forfeiture to certain enumerated
federal crimes, and by doing so excludes a number of
federal crimes that frequently generate criminal proceeds.
Because [CAFRA] makes civil forfeiture procedures fair,
and civil forfeiture generally should be available to combat
federal crimes, it makes sense to extend the availability of
forfeiture to these other crimes. Rather [than] simply
making civil forfeiture available for all federal crimes,
some of which do not generate criminal proceeds, the bill
would amend sections 981(a)(1) and 982(a)(2) of title 18 to
extend . . . forfeiture (both civil and criminal) to the crimes
enumerated in the money laundering statute, 18 U.S.C.
§ 1956(c)(7).
....
[CAFRA] would [also] amend section 2461 of title 28
to give the government the option of pursuing criminal
forfeiture as an alternative to current civil forfeiture if civil
forfeiture is otherwise authorized.
H.R. REP. NO. 105-358, pt. 1, at 35 (1997). This legislative
history clarifies that the civil and criminal forfeiture statutes
were intended to be largely coterminous.
Criminal forfeiture is therefore available for general mail
and wire fraud under 18 U.S.C. §§ 1341 and 1343, and not only
for mail and wire fraud affecting financial institutions under 18
U.S.C. § 982(a)(2)(A). We find the District Court’s
interpretation of the statutes to be contrary to both their plain
language and congressional intent.
V. MONEY JUDGMENT
Although the District Court held that the Government was
not entitled to criminal forfeiture as a form of relief on the first
forfeiture allegation for the general mail and wire fraud charges
under 18 U.S.C. §§ 1341 or 1343, it found that the Government
 25

was entitled to forfeiture on the second forfeiture allegation for
appellant’s theft/embezzlement charges under 18 U.S.C. § 664.
Nevertheless, the District Court refused to enter a money
judgment against appellant for the amount of the total
embezzlement charges (approximately $40,000) because it
found that the applicable forfeiture statutes did not authorize the
court to enter money judgments. The Government appeals this
ruling.
As noted above, 18 U.S.C. § 2461(c) states that, in
circumstances where criminal forfeiture is appropriate, “the
court shall order the forfeiture of the property in accordance
with the procedures set forth in . . . 21 U.S.C. § 853,” and 18
U.S.C. § 981(a)(1)(C) requires the forfeiture of “[a]ny property,
real or personal, which constitutes or is derived from proceeds
traceable to” the violations in question. Neither of these
statutory provisions specifically authorizes money judgments,
which the trial judge believed to be fatal to the Government’s
argument. The District Court stated that the Government
“[i]mplicitly acknowledg[ed] the lack of support for its position
in the statutory language” by arguing that “the practice of
entering forfeiture money judgments is established in the case
law as a unique aspect of in personam criminal forfeiture. . . .
[T]he Court finds no such authority emanating from the inherent
nature of criminal forfeiture.” Day, 416 F. Supp. 2d at 89. The
District Court’s decision once again rested on another district
court opinion – United States v. Croce, 334 F. Supp. 2d 781
(E.D. Pa. 2004) (Croce I) – which was also overruled by the
Third Circuit in Vampire Nation.
We hold that the District Court erred in denying the
Government’s request for a money judgment. Nothing in the
relevant statutes suggests that money judgments are forbidden.
Rather, “the open-ended nature of an order forfeiting the
proceeds of an offense is implicit in both the mandatory nature
of forfeiture and in the procedures Congress created for locating
 26

the forfeitable property itself, or for satisfying the forfeiture
judgment with substitute assets.” Br. for Appellee at 51; see
also 21 U.S.C. § 853(b)(2) (property subject to criminal
forfeiture includes “tangible and intangible personal property,
including rights, privileges, interests, claims, and securities”);
§ 853(m) (authorizing courts to order depositions “to facilitate
the identification and location of property declared forfeited”);
§ 853(p) (stating that “substitute property” is also subject to
forfeiture if, “as a result of any act or omission of the
defendant,” the directly forfeitable property “(A) cannot be
located upon the exercise of due diligence; (B) has been
transferred or sold to, or deposited with, a third party; (C) has
been placed beyond the jurisdiction of the court; (D) has been
substantially diminished in value; or (E) has been commingled
with other property which cannot be divided without
difficulty.”). We find it instructive that 21 U.S.C. § 853
contains no language limiting the amount of money available in
a forfeiture proceeding to those assets in the defendant’s
possession at the time forfeiture is ordered. As the Ninth Circuit
recently noted, “[c]riminal forfeiture under § 853, by definition,
bears a direct relation to the proceeds of the crime. [It] is
concerned not with how much an individual has but with how
much he received in connection with the commission of the
crime.” Casey, 444 F.3d at 1077. Additionally, § 853(o) states
that “[t]he provisions of this section shall be liberally construed
to effectuate its remedial purposes.”
The First Circuit recently noted:
There are two primary reasons for permitting money
judgments as part of criminal forfeiture orders. First,
criminal forfeiture is a sanction against the individual
defendant rather than a judgment against the property itself.
Because the sanction follows the defendant as a part of the
penalty, the government need not prove that the defendant
actually has the forfeited proceeds in his possession at the
 27

time of conviction. Second, permitting a money judgment,
as part of a forfeiture order, prevents a [convicted
defendant] from ridding himself of his ill-gotten gains to
avoid the forfeiture sanction.
United States v. Hall, 434 F.3d 42, 59 (1st Cir. 2006) (internal
quotation marks, citations omitted). Both the Third Circuit and
the Ninth Circuit recently have held that money judgments are
appropriate where the Government is entitled to criminal
forfeiture, even where the amount of the money judgment
exceeds the defendant’s current assets. See Vampire Nation,
451 F. 3d at 201-03; Casey, 444 F.3d at 1077. In each case, the
court noted the liberal construction required by § 853(o) (see
Vampire Nation, 451 F.3d at 202 n.12; Casey, 444 F.3d at 1073),
and rejected the contrary view because it “would permit
defendants who unlawfully obtain proceeds to dissipate those
proceeds and avoid liability for their ill-gotten gains.” Vampire
Nation, 451 F.3d at 202; see also Casey, 444 F.3d at 1074.
Furthermore, in the context of criminal forfeiture under the
similar RICO forfeiture statute, 18 U.S.C. § 1963(a), the
Second, Seventh, and Eleventh Circuits all agree that money
judgments are available. See, e.g., United States v. Robilotto,
828 F.2d 940, 948-49 (2d Cir. 1987); United States v. Ginsburg,
773 F.2d 798, 799-803 (7th Cir. 1985) (en banc); United States
v. Conner, 752 F.2d 566, 575-78 (11th Cir. 1985). We now join
our sister circuits and hold that money judgments are
appropriate in the criminal forfeiture context.
CONCLUSION
For the reasons indicated in the foregoing opinion, the
judgments of the District Court are affirmed in part and reversed
in part.
So ordered.