United States v. Enyinnaya Udo

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 9, 2014 Decided July 24, 2015
No. 12-3092
UNITED STATES OF AMERICA,
APPELLEE
v.
ENYINNAYA E. UDO,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:12-cr-00090-1)
Rosanna M. Taormina, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was A.J.
Kramer, Federal Public Defender. Tony Axam Jr., Federal
Public Defender, entered an appearance.
Elissa R. Hart-Mahan, Attorney, U.S. Department of
Justice, argued the cause for appellee. With her on the brief
were Ronald C. Machen, U.S. Attorney, Frank P. Cihlar,
Chief, Criminal Appeals and Tax Enforcement Policy Section,
U.S. Department of Justice, and Gregory Victor Davis,
2
Attorney. Elizabeth Trosman, Assistant U.S. Attorney, entered
an appearance.
Before: HENDERSON, TATEL, and GRIFFITH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
GRIFFITH, Circuit Judge:
A jury convicted Enyinnaya Udo of twenty-five counts of
aiding or assisting in the filing of a false tax return. He appeals
those convictions, alleging that the court improperly instructed
the jury and that he received ineffective assistance of counsel.
Finding neither error in the jury instruction nor prejudice from
the alleged ineffectiveness, we affirm Udo’s conviction. Udo
also appeals the restitution order imposed as a condition of his
supervised release. The government has conceded error on this
point, and we agree that the court improperly calculated the
restitution. We thus remand the case to the district court to
reconsider that aspect of Udo’s sentence.
I
Udo was a certified public accountant (CPA) who owned a
firm that derived most of its revenue from preparing personal
tax returns. Trouble for Udo arose when the IRS noticed that
returns he prepared frequently claimed thousands of dollars in
unreimbursed employee expenses. An employee incurs these
expenses, such as travel costs, use of a personal vehicle for
business, or professional insurance premiums, as part of her
job but is not reimbursed for them. A taxpayer can lower her
tax liability or increase her tax refund by claiming deductions
for such expenses on her tax return. See generally Internal
Revenue Service, Miscellaneous Deductions, Department of
3
the Treasury 2-3 (Dec. 29, 2014), http://www.irs.gov/pub
/irs-pdf/p529.pdf.
Udo prepared dozens of returns that claimed unreimbursed
employee expenses for clients who never told him they had
incurred such expenses or asked him to claim them on their
returns. Some of these claims were in excess of $20,000.
Sometimes, Udo would arrange a loan that would provide a
client with upfront cash in anticipation of the tax refund Udo’s
work had secured. Udo would then deduct his fee from this
loan.
Suspicious of these returns, the IRS conducted a sting
operation targeting Udo in 2008. An undercover agent posed as
a walk-in client and asked for Udo’s help preparing a fake tax
return while she surreptitiously videotaped the consultation.
After an initial calculation showed that the “client” owed taxes,
Udo prepared a return claiming $14,684 in unreimbursed
employee expenses without the agent suggesting that she had
incurred them. This adjustment transformed the agent’s
apparent tax liability into a tax refund of $1,301. Udo had the
agent sign the IRS form that claimed the expenses. He then
arranged for his fee to be deducted from a loan that he arranged
for her to receive that day in anticipation of her tax refund. A
grand jury later indicted Udo on twenty-five counts of
violating I.R.C. § 7206(2), which makes it a felony to
“[w]illfully” help a taxpayer file a materially false tax return.
We recount only the events at Udo’s trial relevant to this
appeal. During his opening statement at trial, Udo’s counsel
told the jury that the case “comes down to . . . he said, she
said.” Trial Tr. 168 (Aug. 1, 2012). Counsel went on to
promise that the jury would “hear from Mr. Udo,” who would
explain that he acted in good faith based on what his clients had
4
told him about their expenses. Id. at 173. But Udo never
testified.
Instead, when the government’s case came to a close,
Udo’s counsel asked the court for a ruling limiting any
cross-examination of Udo to those issues about which he
would testify: his background, his education, and his
knowledge of the law and his professional duties. Relying on
Brown v. United States, defense counsel argued that a
defendant who testifies in his own defense does not waive the
Fifth Amendment’s protection from self-incrimination to
matters unrelated to his testimony. Cf. Brown v. United States,
356 U.S. 148, 154-55 (1958). In response, the government
argued that, at the very least, Federal Rule of Evidence 608(b)
permitted questioning Udo about his character for
truthfulness. 1 Skeptical of Udo’s request, the court stated that
it would be “very, very, very surprised” if counsel was correct.
Trial Tr. 67 (Aug. 3, 2012). After a short break to consider the
question, the court announced that it would not limit
cross-examination before Udo testified, and that his credibility
was fair game for the government to examine. 2 Udo’s counsel
decided not to call him to testify.
1
Rule 608(b) allows a party to inquire on cross-examination
into specific instances of a witness’s conduct if those instances are
probative of the witness’s character for truthfulness. See FED. R.
EVID. 608(b).
2
Udo does not appeal the court’s determination that the
government would likely be able to cross-examine him about his
character for truthfulness. Cf. Brown, 356 U.S. at 154-55 (“If [a
defendant] takes the stand and testifies in his own defense his
credibility may be impeached and his testimony assailed like that of
any other witness, and the breadth of his waiver is determined by the
scope of relevant cross-examination.”).
5
After the parties rested, the court instructed the jury on the
elements of I.R.C. § 7206(2) by tracking the language of the
statute and using the same definition of “willfully” employed
by the Supreme Court in Cheek v. United States, 498 U.S. 192,
201 (1991). Udo urged that to establish that he acted willfully,
the government must also prove that he knew that the tax
returns in question were materially false or fraudulent. The
court refused that request. The court also instructed the jury on
tax principles drawn from titles in the Code of Federal
Regulations governing the Treasury Department and the IRS.
Udo’s counsel agreed to that instruction.
The jury convicted Udo on all twenty-five counts. At
sentencing, the government’s sentencing memorandum
claimed that Udo owed $311,791 in restitution. An IRS
revenue agent explained that he calculated this figure based on
the twenty-five false returns Udo was convicted of preparing
and numerous other false returns that the IRS discovered and
considered to be part of Udo’s same criminal scheme. After
crediting payments that Udo’s former clients had made toward
outstanding tax liabilities, the government requested that the
court order Udo to pay restitution of $262,966 as a condition of
supervised release. The court sentenced Udo to twenty-four
months imprisonment and ordered him to pay that amount in
restitution as a condition of supervised release.
II
Udo argues that the court erred by failing to instruct the
jury that I.R.C. § 7206(2) requires the government to prove
beyond a reasonable doubt that he knew that the income tax
returns in question were materially false. The government
contends we must review the instruction for plain error because
Udo made no objection to it at trial. Cf. FED. R. CRIM. P. 52(b)
(permitting only plain error review for issues “not brought to
6
the court’s attention” below). Udo insists that he objected to
the instruction before trial, preserving the question for our de
novo review. See United States v. Stadd, 636 F.3d 630, 639-40
(D.C. Cir. 2011). But we need not resolve this dispute. Udo’s
challenge fails under either standard.
I.R.C. § 7206(2) criminalizes “willfully aid[ing] or
assist[ing]” in the filing of a false or fraudulent tax return. The
Supreme Court has held that in tax cases, “willfully” or
“willfulness” means “the voluntary, intentional violation of a
known legal duty.” Cheek, 498 U.S. at 201 (internal quotation
marks omitted). Udo maintains that he could not have
voluntarily and intentionally aided or assisted in the filing of a
false or fraudulent tax return without knowing that the returns
were in fact false or fraudulent. 3 He argues his conviction
should be set aside because the instruction on the elements of
the offense did not require the government to prove as much.
We have previously held that a court’s refusal to give a
requested jury instruction is not reversible error if that
instruction was “‘substantially covered in the charge actually
3
Most of our sister circuits agree with Udo’s interpretation of
the statute. Four circuits have pattern jury instructions for I.R.C.
§ 7206(2) that include a knowledge element similar to the one Udo
requested. See Pattern Crim. Jury Instr. 5th Cir. 2.97 (2012); Pattern
Crim. Jury Instr. 7th Cir. 7206(2) (2012); Pattern Crim. Jury Instr.
10th Cir. 2.94 (2011); Pattern Crim. Jury Instr. 11th Cir. 109.2
(2010). Two more circuits have adopted the same through case law.
See United States v. Stadtmauer, 620 F.3d 238, 252-59 (3d Cir.
2010); United States v. Searan, 259 F.3d 434, 441 (6th Cir. 2001).
And three more have assumed, without explicitly holding, that
knowledge of falsity is an element of I.R.C. § 7206(2). See Driscoll
v. United States, 376 F.2d 254, 254 (1st Cir. 1967); United States v.
Holecek, 739 F.2d 331, 335 (8th Cir. 1984); United States v.
Jackson, 65 F. App’x 754, 756 (2d Cir. 2003).
7
delivered to the jury.’” United States v. Hurt, 527 F.3d 1347,
1351 (D.C. Cir. 2008) (quoting United States v. Taylor, 997
F.2d 1551, 1558 (D.C. Cir. 1993)). This follows from the
principle that courts do not review discrete elements of a jury
instruction in isolation but rather in the overall context of how
the court told the jury to go about its work. See Boyd v. United
States, 271 U.S. 104, 107 (1926).
Udo’s argument falters under this standard. He seizes
upon the court’s failure to provide his proposed instruction as
part of the instruction on the elements of I.R.C. § 7206(2), but
he overlooks other instructions that “adequately conveyed the
substance of the requested instruction to the jury.” Hurt, 527
F.3d at 1351. Beyond the specific instruction that Udo finds
inadequate, the court also instructed the jury that “[g]ood faith
is an absolute defense to the charges in this case,” and “[a]
defendant is under no burden to prove his good faith; rather the
prosecution must prove that the defendant knew the deductions
and credits were false or fraudulent.” Trial Tr. 27 (Aug. 6,
2012). This instruction on good faith informed the jury in no
uncertain terms that Udo had an “absolute defense” to the
charges against him unless he “knew the deductions and credits
were false or fraudulent.” Id. at 26-27. The jury thus
understood that it could not convict Udo unless it found that he
knew the returns were materially false—precisely what Udo
wanted the jury to understand with his proposed instruction on
the elements of I.R.C. § 7206(2).
Reading the instructions as a whole, we conclude that the
court’s instruction on good faith “substantially covered” the
knowledge element that Udo requested. See Hurt, 527 F.3d at
1351. His challenge to the jury instruction on the elements of
I.R.C. § 7206(2) is therefore denied.
8
III
Udo claims that his trial counsel made two principal
mistakes that rendered his assistance constitutionally
ineffective. First, counsel promised in his opening statement
that Udo would testify even though Udo never took the stand.
Second, counsel agreed to an instruction that allegedly
permitted the jury to convict Udo of failing to observe
professional standards of care rather than of violating a
criminal statute.
The “general practice” of this court is to remand an
ineffectiveness claim for an evidentiary hearing. See United
States v. Rashad, 331 F.3d 908, 909 (D.C. Cir. 2003) (internal
quotation marks omitted). This is unnecessary, however, if
“the trial record conclusively shows that the defendant either is
or is not entitled to relief.” Id. at 910 (internal quotation marks
omitted). Here, remand is not needed because the record makes
clear that Udo is not entitled to relief.
We review a claim for ineffective assistance of counsel
under the familiar test set forth in Strickland v. Washington,
466 U.S. 668 (1984). A defendant must show not only “that
[his] counsel's performance was deficient” but also “that the
deficient performance prejudiced the defense.” Id. at 687.
“Prejudice” means a “reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694. A “reasonable
probability” is one “sufficient to undermine confidence in the
outcome.” Id. If the defendant fails to demonstrate prejudice,
we may affirm the conviction without deciding whether
counsel’s performance was deficient. See, e.g., United States v.
Williams, 488 F.3d 1004, 1010 (D.C. Cir. 2007). We do so
here.
9
We consider each of Udo’s arguments that his trial counsel
was ineffective while keeping in mind that the government’s
case against him was, in a word, overwhelming. The
prosecution played for the jury a video of Udo committing the
crime and presented twenty-five separate tax returns he
prepared that listed unreimbursed employee expenses. Udo’s
actions were thus never in doubt. Nor was his intent: Six
witnesses swore that they never told him that they incurred the
expenses on their returns, and Udo—a licensed CPA—never
introduced a shred of evidence suggesting that he thought that
making up these expenses out of whole cloth was somehow
permissible. The government, in other words, put on a
comprehensive case supported by significant evidence. The bar
Udo must clear to demonstrate that any mistake by his trial
counsel casts doubt on the outcome, see Strickland, 466 U.S. at
694, is thus a high one.
Udo argues that his counsel was constitutionally
ineffective because he incorrectly promised the jury that it
would hear from Udo. The false promise was especially
prejudicial, Udo argues, because his counsel characterized the
case from the start as a “he said, she said” matter that depended
on Udo providing the “he said.” Udo points to cases from
several of our sister circuits finding ineffectiveness when a
defense attorney mistakenly promised that a witness would
testify. See McAleese v. Mazurkiewicz, 1 F.3d 159, 166 (3d Cir.
1993); Ouber v. Guarino, 293 F.3d 19, 27 (1st Cir. 2002);
United States ex rel. Hampton v. Leibach, 347 F.3d 219,
258-59 (7th Cir. 2003); Saesee v. McDonald, 725 F.3d 1045,
1049-50 (9th Cir. 2013).
As an initial matter, “the [Supreme] Court has emphasized
the limited nature of any exceptions to the general rule that a
defendant must demonstrate actual prejudice.” Ouber, 293
F.3d at 32. That is, only a handful of mistakes by counsel, none
10
in play here, allow a court to presume constitutional
ineffectiveness. See Bell v. Cone, 535 U.S. 685, 695-96 (2002)
(identifying only three examples of ineffectiveness so
damaging that prejudice is presumed). The Court has never
said, and we are not prepared to say now, that falsely promising
in an opening statement that a witness will testify necessarily
prejudices a defendant. We are thus left to look at the evidence
against Udo, evaluate the gravity of the harm that counsel’s
false promise may have caused, and determine whether Udo
suffered prejudice as a result.
Although counsel’s promise was a tactical misstep, it does
not raise a “reasonable probability . . . sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694. We
fail to see how the unfulfilled promise in the opening statement
had any bearing on how the jury evaluated the credibility of
either the videotape or the witnesses. Udo had the same
opportunity to cross-examine witnesses and question the
veracity of the videotape that he would have had even if
counsel had never made the promise. We find no reasonable
probability that the jury would have weighed this evidence and
come to a different outcome had counsel never promised the
jury that Udo would testify.
Nor do the cases Udo cites from our sister circuits give us
pause. For one, the Third and Ninth Circuits said only in dicta
that the alleged unfulfilled promises in those cases would
trigger a claim for ineffectiveness. Both courts eventually
concluded that no such promises were even made. See Saesee,
725 F.3d at 1050; McAleese, 1 F.3d at 167. And we agree with
the government that the other cases Udo cites are readily
distinguishable from Udo’s because each involved a close call
whether the evidence supported a guilty verdict. See Hampton,
347 F.3d at 237 (noting that the district court found the
prosecution’s case “far from unassailable”); Ouber, 293 F.3d at
11
33 (calling the case “exceedingly close”). This case was not a
close call. The strength of the government’s case against Udo
leaves us with no concern that the outcome would have been
different had counsel never promised that Udo would testify.
We therefore hold that counsel’s unfulfilled promise did not
amount to ineffective assistance of counsel because Udo
suffered no prejudice. See Strickland, 466 U.S. at 694.
Udo also alleges his counsel was ineffective for agreeing
to a jury instruction that explained the professional and legal
responsibilities of tax preparers. The court told the jury that, as
a professional, Udo had a duty to “exercise due diligence” that
the returns he prepared were accurate and that IRS regulations
required him to “make appropriate inquiries” into the facts
supporting a deduction. Udo argues on appeal that those
instructions might have allowed the jury to convict him for
failing to investigate his clients’ returns, which is not a crime,
instead of willfully preparing false returns, which is.
But reading the instructions as a whole, see Hurt, 527 F.3d
at 1351, Udo’s argument is farfetched. It was only after the
court plainly instructed the jury that it must find that Udo
willfully prepared false returns that the court provided its
explanation of some background principles it thought would be
helpful to a jury that might not be versed in the professional
and legal standards required of those who prepare tax returns
for others. We cannot see how these instructions might have
confused the jury. In fact, the court drove home the point that
there was a clear distinction between the criminal charges Udo
was facing and the standards of his profession:
[The court is] now going to give you further instructions
on some pertinent tax principles. [The court] remind[s]
you, this is a criminal case, not a civil case or an audit
concerned with the collection of tax. Thus, [the court has]
12
previously described for each charge that the government
must prove each of the elements beyond a reasonable
doubt.
Trial Tr. 30 (Aug. 6, 2012).
More fundamentally, Udo’s argument mistakenly assumes
the jury convicted him not because of the mountain of evidence
that he violated I.R.C. § 7206(2) but because he may have
breached professional standards. After all, he would not have
suffered any prejudice if the jury convicted him of the crimes
he was accused of committing. To reach the strained
conclusion that he was convicted only of violating professional
standards and not the law, Udo would need to show a
reasonable probability both that the jury thought his clients
were lying when they testified that they never asked him to
claim unreimbursed expenses—even though Udo offered no
such evidence—and that the jury found the videotape
unpersuasive. We find this version of events too speculative to
raise a reasonable probability of a different outcome.
Udo raises another concern with the court’s explanation
about the duties of tax preparers. By agreeing to this
instruction, Udo argues, his trial counsel relieved the
government of its burden to prove that Udo acted willfully and
instead put the defense to the task of proving that his actions
were innocent mistakes. Udo points to a statement by the
prosecutor in her closing argument: “We’re talking about Mr.
Udo who is a CPA, who prepares tax returns, must exercise due
diligence in the accurate preparation and filing of tax returns to
the IRS. That’s the jury instruction. That’s the law. He knows.
He is deemed to know.” Trial Tr. 88 (Aug. 6, 2012).
The government concedes that the prosecutor misspoke.
The government always bears the burden of proving all
13
elements of a crime, including intent. By telling the jury that
Udo “is deemed to know” the law, the prosecutor incorrectly
suggested that Udo bore the burden of proving he did not. The
government calls this a mere slip-up during closing argument.
More importantly, the government argues, was the court’s
instruction to the jury:
Every defendant in a criminal case is presumed to be
innocent. This presumption of innocence remains with the
defendant throughout the trial unless and until the
government has proven he is guilty beyond a reasonable
doubt. This burden never shifts throughout the trial. The
law does not require the defendant to prove his innocence
or to produce any evidence at all.
Trial Tr. 15-16 (Aug. 6, 2012). The court further instructed the
jury that “[t]he government has the burden of proving the
defendant guilty beyond a reasonable doubt as to each element
of the crime charged,” id. at 16; “[t]he statements, arguments
and questions of the lawyers are not evidence; they are only
intended to assist you in understanding the evidence,” id. at 23;
“the prosecution must prove that the defendant knew the
deductions and credits were false or fraudulent beyond a
reasonable doubt,” id. at 27.
We agree with the government that these instructions
clarified any confusion the prosecutor’s misstatement may
have caused. This court has previously held that “[t]he jury is
presumed to follow the instructions” even in the face of a
misstatement of the law by a prosecutor. United States v. Hall,
610 F.3d 727, 741-42 (D.C. Cir. 2010). We apply the same
presumption here. The court’s instructions were crystal clear:
The government bore the sole burden of proving beyond a
reasonable doubt that Udo knew his clients’ returns were
materially false. Again, we hold that Udo suffered no prejudice
14
because any alleged ineffectiveness by his counsel did not
“undermine confidence in the outcome.” Strickland, 466 U.S.
at 694.
Next, Udo claims his counsel erred in failing to challenge
the court’s restitution calculation. We discuss the lawfulness of
the restitution order below, but for purposes of Udo’s
ineffectiveness argument we point out the obvious. Counsel’s
failure to object to the restitution order could not have affected
the outcome of Udo’s trial because it occurred after the verdict.
Only sentencing remained.
Finally, Udo argues that the cumulative effect of his
counsel’s errors merits reversal of his conviction. Again, we
disagree. As we have repeated throughout, the evidence against
Udo was overwhelming. None of the errors he alleges could
have overcome that evidence in isolation, and there is nothing
about considering them in the aggregate that changes the
strength of the government’s case. We see no reasonable
probability that the outcome of the trial would have been
different had Udo’s counsel done all that Udo now argues he
should have. See Strickland, 466 U.S. at 694.
IV
Udo challenges the method the government used to
calculate the loss that the court adopted in its restitution order.
Because Udo’s counsel failed to object to the restitution order
at trial, we review Udo’s claim for plain error. See FED. R.
CRIM. P. 52(b). Under this standard, he must demonstrate on
appeal not only that an error occurred, but that it was plain,
affected his substantial rights, and “seriously affect[ed] the
fairness, integrity, or public reputation of judicial
proceedings.” United States v. Olano, 507 U.S. 725, 732
(1993) (internal citation and quotation marks omitted). The
15
government concedes that the court plainly erred in calculating
the restitution order, and we agree.
Restitution is exclusively a creature of statute, see United
States v. Moore, 703 F.3d 562, 573 (D.C. Cir. 2012), and
comes with important restrictions. See 18 U.S.C. § 3556.
Relevant here, a court may order restitution to the victim of an
offense for which the defendant was convicted. See 18 U.S.C.
§ 3583(d); id. § 3563(b)(2); id. § 3556; id. § 3663(a)(1)(A); id.
§ 3663A(a)(1). But the relevant statutes do not even
contemplate—much less expressly allow—that a court may
order a defendant to pay restitution for offenses related to, but
distinct from, the offenses of conviction. See Hughey v. United
States, 495 U.S. 411, 413 (1990) (holding that Congress
“authorize[d] an award of restitution only for the loss caused
by the specific conduct that is the basis of the offense of
conviction”). 4 A number of our sister circuits have held that
courts may order restitution as a condition of supervised
release, but only to compensate for the loss arising from the
conduct for which the defendant was convicted. See, e.g.,
United States v. Freeman, 741 F.3d 426, 433-34 (4th Cir.
2014) (collecting cases).
The district court below ordered Udo to pay restitution as a
condition of supervised release, invoking the authority of
18 U.S.C. § 3583(d). 5 The government’s post-verdict
4
Although 18 U.S.C. § 3663A postdates Hughey, nothing in the
text of the statute suggests that Congress intended to depart from the
Court’s holding in Hughey.
5
18 U.S.C. § 3583(d) allows federal courts to order certain
“discretionary condition[s] of probation,” including a court order
requiring the defendant to pay restitution to victim(s) of the offense.
See id. (cross-referencing conditions listed in 18 U.S.C.
16
sentencing memorandum freely admitted that its restitution
calculation was “derived from convicted and uncharged
relevant conduct.” J.A. 36 (emphasis added). Even so, the
court ordered Udo to pay $262,966 in restitution. This total
encompassed not just the loss resulting from the twenty-five
false returns Udo was convicted of helping prepare, but also
the losses generated from more than a dozen other returns that
Udo was not convicted of helping prepare. The government
concedes this was in error. The court exceeded its remedial
authority by ordering Udo to pay restitution for uncharged
conduct. The loss resulting only from the false returns that led
to Udo’s convictions totaled just $74,047.
Udo also alleges that the court failed to credit a payment
made by one of his clients that should offset his total and
requests that, on remand, the government provide a full
explanation of how it calculated the figures it provided to the
district court. At oral argument, the government expressed a
willingness to provide that information on remand, along with
any information about updated payments from Udo’s clients.
We agree with the parties that there was an error and that it
was plain. Consistent with two of our sister circuits, 6 we hold
that ordering a defendant to pay more in restitution than the
amount resulting from the loss he caused both affects his
substantial rights and “seriously affect[s] the fairness” of the
proceedings. Olano, 507 U.S. at 732. Because the district court
plainly erred in calculating Udo’s restitution order, and in light
of the government’s concession, we vacate the order and
remand for the court to reconsider that aspect of his sentence.
§ 3563(b)(2)); id. § 3563(b) (allowing the court to require restitution
as a condition of probation under 18 U.S.C. § 3556).
6
See United States v. Davis, 714 F.3d 809, 816 (4th Cir. 2013);
United States v. Austin, 479 F.3d 363, 373 (5th Cir. 2007).
17
V
For the foregoing reasons, we affirm Udo’s conviction.
We vacate the district court’s restitution order and remand the
case for the court to reconsider the restitution order in a manner
consistent with this opinion.