United States v. Bourget

Opinion

United States Court of Appeals For the First Circuit

No. 23-1582 UNITED STATES,

Appellee,

v.

SETH M. BOURGET,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Denise J. Casper, U.S. District Judge]

Before

Montecalvo, Lynch, and Kayatta, Circuit Judges.

Benjamin Brooks, with whom Good Schneider Cormier Fried & Brooks was on brief, for appellant.

Karen Eisenstadt, Assistant U.S. Attorney, with whom Joshua S. Levy, U.S. Attorney, was on brief, for appellee.

August 21, 2026

MONTECALVO, Circuit Judge. Correctional Officer Seth Bourget challenges his criminal conviction for deprivation of rights under color of law in violation of 18 U.S.C. § 242, arguing that the evidence admitted at trial was insufficient to support a finding of guilt and raising several other issues for our review.

This appeal stems from an incident occurring on June 18, 2019, when correctional officers with the Bureau of Prisons ("BOP") at the Federal Medical Center Devens ("FMC Devens") performed what officers term a "forced cell move," where they use force to enter a cell, secure the individual inside, and then move that individual to another location. On that day, Bourget was part of the five-person use-of-force team that executed a forced cell move on KT,1 an inmate who was in a holding cell with his hands handcuffed behind his back. Bourget, equipped with a large shield, was the first officer to enter the holding cell. Bourget entered at full speed and struck KT with the shield in the chin and face. As a result, KT fell back, hit his head, and suffered serious injuries to his head and face. The incident was captured on video, which was played at trial.

Bourget initially faced two criminal charges of deprivation of rights under federal law related to this incident. He proceeded to a jury trial in federal court that resulted in an

1 Consistent with the record and the parties' briefing, we refer to this individual by his initials.

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acquittal on one count; however, the jury was hung as to the other count. Bourget was then retried on the remaining count, which alleged that Bourget violated KT's Eighth Amendment rights by striking KT with the shield with excessive force while KT was handcuffed inside the holding cell. The second jury trial resulted in a conviction; Bourget now challenges that conviction on appeal. For reasons we will explain below, Bourget's challenges fail, and we affirm the conviction.

I. Background

"We review the facts in the light most favorable to the jury's guilty verdict." United States v. Lee, 790 F.3d 12, 13 (1st Cir. 2015). Here, we focus on the facts and procedural history relevant to the legal issues raised, including video evidence in the appellate record. See United States v. Howard, 66 F.4th 33, 37 n.1 (1st Cir. 2023); see also Bannon v. Godin, 99 F.4th 63, 69-70, 81 (1st Cir. 2024) (relying on footage from traffic cameras and officer body-worn cameras).

A. The Incident

In December 2018, KT was incarcerated at FMC Devens, where he was also provided mental health treatment. During his time at FMC Devens, KT experienced delusions and auditory hallucinations; in addition to being diagnosed with "unspecified psychotic disorder," he was also diagnosed with "neurodevelopmental disorder" and "autistic spectrum disorder."

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The staff psychologist likened KT's mental capacity to the "range between a child and a teenager," and described KT as "the most mentally ill person" he had ever seen. KT's physical health was also deteriorating; he lost approximately 70 pounds in the preceding year and a half, now weighed around "160, 150-something" pounds, and did not have much muscle definition. Although KT had not been physically assaultive towards staff, he did, at one point, spit on the staff psychologist, which is considered a staff assault. As a result of this incident, KT's picture was included in FMC Devens's "electronic posted picture file," a list alerting officers to be aware of certain individuals.

On June 18, 2019, an altercation occurred between KT and a nurse in the N-3 housing unit, a semi-locked unit that KT had been moved to that day. The nurse activated his body alarm and sprayed KT with oleoresin capsicum ("OC") spray, also known as pepper spray. Officers, including Bourget, arrived to assist the nurse and restrained KT, securing KT's hands behind his back with handcuffs and moving him from the N-3 unit to a holding cell in the N-1 unit. Bourget began operating a handheld camcorder during the move from N-3 to N-1. Unlike the N-3 unit, where incarcerated individuals have the opportunity to walk around the unit and interact with each other, the N-1 unit is a locked mental health unit. The N-1 unit is considered the highest level of security at FMC Devens.

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The officers locked KT in a holding cell in the N-1 unit, with his hands still handcuffed behind his back. The officers continuously monitored KT, and he was speaking incoherently to them.

While in the N-1 holding cell, KT tried to spit on staff who were outside the cell, including Bourget. KT's spit hit Bourget in the face area and forearm; the spit appeared to be mixed with blood. Bourget became concerned about contracting a disease from the bloody spit and was "upset" and "scared." On the video, Bourget can be heard saying "f***" in response to the spitting and then "f***" again as he walked away. Another officer took control of the camcorder during this time; at some point, he placed it on a trashcan outside of the holding cell. A different officer told KT, "spit again and I'll fill your face full of spray, alright?"

The officers told KT that they needed his cooperation to clean off the OC spray. If he did not cooperate, they would have to use more OC spray. KT continued to spit at officers, and an officer sprayed KT with OC spray in response. This did not stop KT from attempting to spit on officers. After KT continued to spit, an officer is recorded saying to someone, "You going to get the f****** shield anytime soon here, or what?" At one point, Bourget returned to the area and said that he also wanted to spray KT with OC spray. Lieutenant Joseph Lavorato was the supervising

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officer, and, at this point, he indicated to the officers not to spray KT further.

KT was then left walking in circles in the holding cell, still speaking incoherently and handcuffed behind his back. Meanwhile, a use-of-force team was assembled to decontaminate KT and move him from the holding cell. Bourget was identified as "the number one man" on the use-of-force team, meaning he was the first in line to enter the holding cell and "responsible for securing [KT's] head and torso." One officer testified at trial that Bourget volunteered for this position.

Almost an hour after KT was initially placed in the holding cell, the use-of-force team headed to the area outside of the cell. Bourget, who got there first, said "f*** you" to KT. The rest of the use-of-force team joined Bourget shortly thereafter, and they waited directly outside of the holding cell. Lieutenant Lavorato asked KT multiple times to turn around and lay down on the ground so that they could "get [him] cleaned up." One unidentified officer on the team stated, "you're going to get one . . . oh, you're going to get one." KT did not lie on the ground but instead stood near the opening of the holding cell and responded incoherently, such as by spelling his last name out loud.

The holding cell was then unlocked, and the use-of-force team entered at full speed, with Bourget, holding a shield, at the front of the group. Bourget entered first and hit KT with the top

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of the shield, using an upward motion that caused the shield to hit KT's chin and face. As a result, KT fell back and hit his head on the wall and/or floor.

Once on the ground, KT cried out in pain and again spoke incoherently. Blood was smeared on the wall and pooled on the ground where KT had been tackled. The officers eventually washed the OC spray off KT and brought him to a different cell in the N-1 unit.

Later that night, KT was sent to the hospital. There was a 2.5-centimeter laceration on the lower left side of his face and a 3-centimeter laceration on the back of his scalp. Doctors used twelve staples to close the wound on the back of KT's head. After KT returned to FMC Devens, several medical staff noted his injuries. The day after the incident, a physician assistant at FMC Devens observed that KT had "[a] lot of bruising and swelling over different parts of [his] face," and, a couple days later, the staff psychologist observed that KT still had notable swelling and bruising to his face.

When a forced cell move like this is completed, FMC Devens staff review the use of force to ensure proper procedure was followed. This led to an investigation into the incident, and, eventually, criminal charges were brought against Bourget and Lavorato.

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B. The Indictment

On February 5, 2020, a grand jury charged Bourget and Lieutenant Lavorato under a four-count indictment. As relevant to this appeal, the indictment charged Bourget with two counts of deprivation of rights under color of law in violation of 18 U.S.C. § 242 for: (1) allegedly dropping his knee on KT's head while KT was handcuffed and restrained on the ground after the initial altercation with the nurse in N-3 and (2) striking KT with a protective shield with excessive force while KT was handcuffed inside the holding cell. The remaining counts were charged against Lavorato.

C. The First Trial

The initial trial in spring 2022 lasted thirteen days.

Bourget and Lavorato were tried together and both testified in their defense. Employees who worked at FMC Devens at the time of the incident, including fourteen officers and five medical professionals, also testified. Two other federal law enforcement officers and two expert witnesses also testified.

Several videos of the incident -- beginning with the altercation in N-3 and continuing through the forced cell move in N-1 -- were introduced into evidence. Two stationary surveillance cameras recorded the incident without sound (one in N-3 where the altercation with the nurse occurred and one in N-1 where the remainder of the incident occurred). Two hand-held video

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recorders, or camcorders, also recorded the incident with audio. One of those camcorders was the one Bourget initially manned in N-1 and that was later inadvertently left on a trashcan facing the holding cell. The other camcorder was used during the forced cell move and was operated by then-Lieutenant Benjamin Quinn, who was "the number six man" on the use-of-force team -- the sixth to enter the holding cell, whose only duty was to man the camera.

Relevant to this appeal, in the first trial, Captain Michael Bollinger testified about a use-of-force training class he taught at FMC Devens. He explained that the general BOP policy is "to use the minimum amount of force necessary to resolve [a] situation." Bollinger also explained why and how an officer may escalate force depending on the circumstances. In doing so, Bollinger noted that during forced cell moves, officers may use a shield but that "[i]t should be used as a protection, never as a weapon."

During Bollinger's testimony, defense counsel asked about a video shown at training at FMC Devens portraying a prior forced cell move of an incarcerated person named Sion (the "Sion video").2 Bollinger testified that the Sion video was used as an example to explain to officers how to transition from lesser to greater uses of force "for a disruptive inmate, such as going from

2 Because this video is the focus of one of the main issues on appeal, we describe it in detail.

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OC spray to the pepper ball launcher to the stun gun to, in [Sion's] case . . . an OC grenade which basically explodes in the cell and puts OC projectant [sic] out in the air and also strikes the inmate with rubber balls to create a deflection so that the team can go in on him." Bollinger specifically testified that the video was not used in training as "an illustration of how a forced cell move should be done." He instead explained, "I showed that video because we were getting into that use of transitioning [between different] less than lethal [means of force], and I thought the lieutenant did an excellent job dictating on video how he was transitioning from one less lethal [means] to the next." The Sion video then came into evidence without objection from the government.3 The Sion video shows Sion refusing to voluntarily submit to being restrained in handcuffs and moved to a different unit. Sion had a history of refusing orders, refusing programs, and assaulting staff. A use-of-force team was compiled to move Sion between units; Bourget was the "number one man" on that use-of-force team just as he was in the incident at issue.

As seen in the video, when the use-of-force team approached Sion's cell, Sion was not handcuffed, and he was lying

3 Although the government objected to a portion of the video based on relevance, it did not otherwise take a position on the remainder of the video.

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in bed; he soon got up once the officers approached. The officers repeatedly asked Sion if he was willing to be moved and asked him to come to the door to "cuff up," but he did not respond. The officers then used a short burst of OC spray when Sion did not respond to the "last direct order." Sion still refused to respond to orders, and so the officers used another short burst of OC spray. At this point, Sion walked away from the door of his cell, and the officers transitioned to the use of pepper bombs. Sion continued to refuse orders, and an additional round of pepper bombs were deployed.

The officers then gave Sion additional time to comply with their orders. But Sion instead went over to the sink in his cell and attempted to clean the OC spray from his face. The officers warned Sion that they were going to deploy stun munition because he was not complying with their order to come to the door. The officers then used a stun grenade, after which the use-of-force team entered the cell to restrain Sion. The officers quickly entered the room (without a shield) and brought Sion to the ground. Once restrained, the officers were able to move Sion out of his cell and take him to be decontaminated.

After the video was shown to the jury, Bollinger noted that the main difference between the threat Sion posed in the video and the threat KT posed in the situation here was that KT was restrained with his hands handcuffed behind his back, whereas Sion

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was not restrained in any way. Bollinger also again confirmed that the Sion video was used in training "to show how we would transition through [different tiers of] less than lethal" force. The Sion video was later briefly mentioned by defense counsel at closing arguments and only to note that a shield was not used during that forced cell move.

After the close of evidence, the case went to the jury, which found Bourget not guilty on the count involving the alleged knee drop and found Lavorato not guilty on both counts against him. The jury could not reach a verdict as to the remaining count against Bourget related to striking KT with the shield, and so the district court declared a mistrial on that count. The government sought a retrial.

D. The Second Trial

The second jury trial was held in December 2022. This time, the trial lasted only seven days and included far fewer witnesses. Eight officers and four medical professionals who worked at FMC Devens at the time of the incident testified. Additionally, one other federal officer and two expert witnesses testified. Bourget did not testify in his defense. The videos of the incident that were introduced at the first trial were also introduced at the second trial.

At the second trial, Bourget again requested to introduce the Sion video into evidence. In support of admission,

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Bourget contended that the Sion video was "used each year in the annual training" to show "a proper forced cell move." But, unlike in the first trial, the government objected to the introduction of the Sion video, arguing that the video was inadmissible and being used to show Bourget's prior good acts. The government emphasized that the testimony from the first trial established that the Sion video is used in training only to show how to transition between different types of uses of force but "had nothing to do with" a forced cell move.

After initially reserving on the question of the admission of the Sion video in order to first reexamine the video and the prior testimony, the district court did not allow the video into evidence. The court gave two reasons for excluding the Sion video: first, it found the video irrelevant because the circumstances in the video were "very different" than the circumstances in this case; and, second, "to the extent it ha[d] any relevance . . . the probative value [wa]s substantially outweighed by any . . . danger of confusion or unfair prejudice."

In reaching those conclusions, the court reasoned that the video "involved not only a different inmate, [but] an inmate who was not restrained, and it involved OC spray and then an escalation to a pepper spray bomb, an OC bomb." Because those circumstances were so different from the case here, the court determined that the video "would [not] be helpful to the jury in

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deciding the critical issues and the contested issues they have to decide here." The district court also focused on the Sion video being "used in training for another purpose," namely a portrayal of how to transition between different levels of force, rather than to show how to complete a forced cell move. In support of its understanding of the purpose of using the Sion video in training, the district court pointed to Captain Bollinger's testimony that he "showed [the Sion] video because [they] were getting into . . . transitioning . . . from one [use of force] to the next" and not to show how to complete a forced cell move. The district court also found that the same analysis supported holding that even if the video had some relevance, it was substantially outweighed by the "danger of confusion or unfair prejudice."

In response, Bourget argued, again, that the Sion video is used for training and the video would be introduced to show "this is all the officers get, one to two hours in refresher training in a classroom, and then they show a video." The district court noted that it had taken this argument into consideration and that, even without the admission of the video, Bourget could make an argument regarding his training. However, the court again highlighted that "even the person in charge of training, namely, Bollinger, notes the video is used in training for another purpose." Thus, the court reiterated that "to the extent that [the Sion video] is used in the training, it's not relevant to the

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decision this jury has to make in regards to excessive use of force."

A great deal of the trial testimony in the second trial focused on how officers are trained to perform forced cell moves. Captain Bollinger testified -- as he did in the first trial -- and much of his testimony centered on how he trained officers on use of force at FMC Devens. Bollinger said that "[s]taff are trained to use the minimum amount of force necessary to control a situation." He also stated that, typically, a forced cell move would be performed on an unrestrained individual, and officers were trained "to get into the cell as quickly as possible and restrain that inmate." Bollinger gave the example of a 70-year-old inmate who is sitting on his bed but not presenting his hands to be handcuffed. He said, in that situation, he would tell officers "run in as quickly as you can, and grab ahold of his arms" but not to go in "and smash the guy." Bollinger also testified that a shield is "a defensive piece of equipment [that is] not ever trained to be used offensively in a forced cell move." And he testified that he had never instructed any officers to move a shield "in an upward fashion" because that "could cause extreme injury to the head or neck area," including "serious injury . . . and/or death." When discussing the incident with KT, Bollinger testified that Bourget's entry into the cell was not consistent with the training and instruction that he gave on the use of force

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because Bourget used the shield offensively, bringing the top of the shield "up very quickly" into KT's "neck area" and "throwing [KT's] head back."

Other officers also testified about the training received at FMC Devens. The federal officer who led the investigation into the incident believed that officers are "told to be dynamic, go quickly" but that entering "at full speed, 100 percent" was not necessarily the language used. A former FMC Devens officer noted that "[e]very cell entry is different" so officers do not always enter at "full speed" and are trained to use "the minimum amount of force needed." But other officers testified that they "always enter [cells] at 100 percent" and that they enter "[a]s fast as [they] can get in there" when completing a forced cell move.

Captain Benjamin Quinn4 testified regarding the reactions of the other officers when they saw the video of the forced cell move recorded by the camcorder that was left on the trashcan. Shortly after the incident occurred, Quinn watched the video with Officers Corey, Kennedy, and Brown in the officer station. Quinn testified that Officer Corey had already watched the video and commented that "it was bad." Quinn took this to mean that the video "wasn't going to be [] good" and that the entry

4 Quinn was a lieutenant at the time of the incident but was promoted to captain by the time of the second trial.

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into the holding cell "probably was not a policy move." After Quinn viewed the video, he agreed "that it was bad . . . [s]pecifically the way that the shield was used."

After deliberating, the jury returned a guilty verdict.

Bourget had moved for a judgment of acquittal at the close of the government's case and at the close of evidence, he did so again after the verdict was rendered; the district court denied the motions. The district court subsequently sentenced Bourget to a year and a day in prison, followed by two years of supervised release. Bourget now appeals his conviction.

II. Discussion

Bourget challenges his conviction on several grounds.

First, he argues the evidence was insufficient to support a finding that his use of force against KT was malicious and sadistic or that he acted with specific intent to deprive KT of his constitutional rights. Second, he argues that the jury instructions failed to explain the requisite standard the jury had to apply in finding intent. Third, he argues that his right to present a complete defense was violated by the district court's exclusion of the Sion video in his second trial. Fourth, he argues that he was prejudiced by hearsay and opinion testimony admitted at his second trial. And finally, Bourget argues that these cumulative errors, along with others, prejudiced him and deprived him of a fair trial.

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A. Sufficiency of the Evidence We review de novo the sufficiency of the evidence, "scrutinizing the record as a whole, drawing all reasonable inferences in favor of the verdict, and avoiding any credibility judgments, to determine whether any rational factfinder could have found each element of the crime proved beyond a reasonable doubt." United States v. DeCologero, 530 F.3d 36, 65 (1st Cir. 2008). "To uphold a conviction, the court need not believe that no verdict other than a guilty verdict could sensibly be reached, but must only satisfy itself that the guilty verdict finds support in a plausible rendition of the record." Id. (quoting United States v. Echeverri, 982 F.2d 675, 677 (1st Cir. 1993)).

Bourget was convicted under 18 U.S.C. § 242, a charge of deprivation of rights under color of law. As relevant here, that statute criminalizes the behavior of any person (1) acting under color of law who (2) willfully (3) deprives another person "of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States" (4) causing "bodily injury" as a result from these actions. 18 U.S.C. § 242; see United States v. Bailey, 405 F.3d 102, 111 (1st Cir. 2005). Bourget was convicted under this statute for willfully violating KT's Eighth Amendment rights under the U.S. Constitution. Bourget

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argues that the evidence at trial was insufficient to satisfy both the deprivation and willfulness elements under the statute.5 1. Deprivation of Eighth Amendment Rights Under the deprivation of rights element, we are focused on the violation of KT's Eighth Amendment right to be free from cruel and unusual punishment. "A prison official violates the Eighth Amendment only when two requirements are met": an objective and subjective requirement. Cintron v. Bibeault, 148 F.4th 37, 47 (1st Cir. 2025) (cleaned up) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). The objective requirement provides that "the deprivation alleged must be, objectively, sufficiently serious." Id. (quoting Farmer, 511 U.S. at 834). The subjective requirement provides that "a prison official must have a sufficiently culpable state of mind." Id. (quoting Farmer, 511 U.S. at 834). Because Bourget focuses his appeal only on the subjective requirement, that is where we focus our analysis.6 Under the subjective requirement, when faced with a prison disturbance, the question of whether the defendant's action caused "unnecessary and wanton pain and suffering," such that the

5 As the parties do in their briefing, we begin with the deprivation element. This approach makes sense because, as is evident in our discussion, the Eighth Amendment analysis of the deprivation element also involves the defendant's state of mind.

6 Because Bourget does not raise any argument as to the objective requirement, any potential argument is waived. See Toloza-Jiménez v. Gonzáles, 457 F.3d 155, 160 (1st Cir. 2006).

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defendant had the requisite culpable state of mind, "turns on whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm." Hudson v. McMillian, 503 U.S. 1, 6 (1992) (quoting Whitley v. Albers, 475 U.S. 312, 320-21 (1986)). In answering this question, we address the following factors laid out by the Supreme Court, known as the "Whitley factors":

(1) the extent of the threat to the safety of staff and inmates, as reasonably perceived by the responsible officials, (2) the need for the application of force, (3) the relationship between the need and the amount of force that was used, (4) the extent of the injury inflicted, and (5) any efforts made to temper the severity of a forceful response.

Segrain v. Duffy, 118 F.4th 45, 56-57 (1st Cir. 2024) (cleaned up) (quoting Staples v. Gerry, 923 F.3d 7, 13 (1st Cir. 2019)). Because direct evidence of motive or intent is often lacking, the Whitley factors may be used to "infer the existence of the subjective state of mind required for an Eighth Amendment violation." Id. at 61-62 (cleaned up) (quoting Dean v. Jones, 984 F.3d 295, 302 (4th Cir. 2021)).

Bourget does not directly apply the Whitley factors in his briefing; instead, he argues that the evidence before the jury supports only that he acted with deliberate indifference and not with malicious and sadistic intent. In so doing, he contends that KT spitting on him before Bourget entered the cell and Bourget's

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own language during the encounter (saying things like "f*** you") are not enough to show he acted maliciously and sadistically. He also emphasizes that he used a shield only at his lieutenant's instruction and entered the cell at "100%" because that was how he was trained. He does not address what the jury could have inferred from the Whitley factors.

Applying the Whitley factors, we think a plausible rendition of the record, when viewed in the light most favorable to the verdict, supports the jury's conclusion that Bourget acted with malicious and sadistic intent.

Under the first factor, a jury could have found that the threat to the safety of staff and inmates was low when the officers rushed KT and Bourget struck him with a shield, where KT was standing still and handcuffed behind his back, had been sprayed with OC spray several times, and had "[d]eteriorating" physical health, such that he had lost weight, had "no muscular definition," and was described as "emaciated." Officers also testified that KT did not make any threatening statements or aggressive movements at the time of the forced cell move. The use-of-force team was composed of five officers wearing protective gear, all entering the cell together to restrain KT (with a sixth officer following to record the incident on camera). Bourget, who was present before the incident and led the team into the cell, was aware of these facts before entering the cell and utilizing force and could and

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should have perceived the threat presented to be low. See Segrain, 118 F.4th at 62 (finding, at the summary judgment stage, that a reasonable jury could find that the responsible official should have perceived the threat as low where the incarcerated individual was handcuffed and surrounded by six officers, even though he held a prison-issued razor).

We turn next to the second Whitley factor -- the need for the application of force -- and the third factor -- the relationship between that need for force and the amount of force used. Although the record indisputably supports a finding that some use of force was necessary to decontaminate KT so that he did not suffer further harm, the jury reasonably could have concluded that the amount of force utilized here was disproportionately high in relation to that need. The jury had the videos of the incident before it -- as do we -- and could view the significant amount of force used by Bourget when he speared KT with the shield. The jury also heard evidence establishing how shields are meant to be used defensively in this context and how that differed from Bourget's offensive use here, causing KT further harm, and heard testimony about the risk of serious injury or death posed by the type of spearing, upward motion Bourget used. Though the jury heard competing evidence as to how the officers were trained to enter the cell and utilize force (with some officers testifying they always enter a cell at 100 percent during forced cell moves

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and others testifying that the entry is fact-dependent but they always use the minimum amount of force necessary), the jury was able to consider and weigh that evidence in making its decision.

As to the fourth Whitley factor, the extent of the injuries, the jury also heard evidence that, with his hands cuffed behind his back, KT suffered significant injuries as a result of being hit with the shield and forced backwards. When forced back, KT hit his head on the wall and/or floor of the holding cell. The jury saw videos of the incident, which showed blood smeared on the wall and pooled on the floor of the holding cell. KT was treated at a hospital later that night, and the procedure notes from that visit identified a 2.5-centimeter laceration on the lower left side of his face and a 3-centimeter laceration on the back of his scalp. Twelve staples were needed to close the wound on the back of KT's head. One lieutenant saw KT the day after the incident and testified that the injuries he observed on KT "weren't normal" compared to injuries he had previously seen on inmates after a calculated use of force, which were typically less severe. The physician assistant who saw KT the morning after the incident testified that KT had "[a] lot of bruising and swelling over different parts of the face with the wound -- the stitches in the left lower cheek." The jury also heard evidence that a couple of days after the incident, the staff psychologist at FMC Devens noted that KT still had "[a] lot of swelling and bruising around his

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face." The jury reasonably could have concluded that KT's injuries were significant.7 On balance, viewing the record in the light most favorable to the verdict, the Whitley factors weighed in favor of inferring that Bourget acted with malicious and sadistic intent. Further, despite Bourget's arguments to the contrary, the jury was also presented with direct evidence of Bourget's specific intent, including his use of language (saying "f***" and "f*** you") and expressed desire to spray KT with OC spray.

For these reasons, a plausible rendition of the record supports the jury's finding that Bourget acted with malicious and sadistic intent and (because Bourget does not challenge the conclusion that the objective requirement was met) accordingly deprived KT of his Eighth Amendment rights.

2. Willfulness

We next turn to the willfulness element. When the word willful is "used in a criminal statute, it generally means an act done with a bad purpose." Screws v. United States, 325 U.S. 91,

7 Although we need not go through a recitation of each factor, we note that as to the fifth Whitley factor -- whether efforts were made to temper the severity of the response -- it is difficult to say how it weighs here. After the use-of-force team entered the cell, following Bourget's strike with the shield, the team promptly decontaminated KT from the lingering OC spray. Despite the officers' attention to decontaminating KT, they did not appear to focus on KT's other injuries, and medical staff soon took over. Thus, this factor tends to weigh neutrally as to Bourget's efforts to temper the severity of the use of force.

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101 (1945) (quoting United States v. Murdock, 290 U.S. 389, 394 (1933)). Section 242 is not "a trap for law enforcement agencies acting in good faith" but, instead, applies to officials who "either know[] or act[] in reckless disregard of [the statute's] prohibition of the deprivation of a defined constitutional or other federal right." Id. at 104. A defendant's bad purpose does not need to be expressed; it can instead be "reasonably inferred" from the circumstances. Id. at 106. "The requisite intent could be established by 'all the attendant circumstances -- the malice of the defendant, the weapons used in the assault, its character and duration, the provocation, if any, and the like.'" United States v. Marler, 756 F.2d 206, 217 (1st Cir. 1985) (cleaned up) (quoting Screws, 325 U.S. at 107).

Bourget argues that the jury could not infer that he had the requisite specific intent because he did not engage in a pattern of abusing KT, he had been trained to enter the cell at "100%," and he had not received instruction on how to use the shield. But, viewing the evidence in the light most favorable to the verdict, we see the evidence differently.

Bourget does not recognize that the jury heard competing evidence as to how officers were trained and how much force should have been used in this circumstance under that training. Although there was evidence that supported Bourget's theory that officers were taught to enter a cell at 100 percent, several witnesses

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instead testified that officers were to enter the cell quickly and then use the minimum amount of force necessary. See United States v. Hill, 99 F.4th 1289, 1307 (11th Cir. 2024) (reasoning that "where the officer's actions so obviously violate his training on the use of force, a jury may infer that the violation was willful" (cleaned up) (quoting United States v. Brown, 934 F.3d 1278, 1297 (11th Cir. 2019))). The jury was also presented with evidence that Bourget was upset about being spit on and made several negative comments towards or near KT. Additionally, an officer testified that Bourget volunteered to be the number one man on the use-of-force team. Finally, and most importantly, a jury could reasonably find that, as five officers in body armor rushed the handcuffed KT, there was no reason to use a shield as a spear other than to harm KT. The jury could weigh the evidence and plausibly find that Bourget's statements and actions were probative of his malice towards KT and, accordingly, his state of mind when using the shield offensively and utilizing force against KT. See Marler, 756 F.2d at 217.

For these reasons, viewing the record in the light most favorable to the verdict, a jury could have found that Bourget had the requisite state of mind here. Accordingly, a rational factfinder could have found each of § 242's elements was established beyond a reasonable doubt under a plausible reading of the record. Bourget cannot overcome the formidable standard of

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review required to succeed on this argument. Thus, we hold that Bourget's sufficiency challenge fails.

B. Jury Instructions

We briefly turn to Bourget's challenge to the jury instructions relating to the elements of willfulness and the deprivation of his Eighth Amendment rights. We review preserved challenges to jury instructions de novo. United States v. Delgado-Marrero, 744 F.3d 167, 184 (1st Cir. 2014).

Bourget argues that the jury instructions were wrong in two ways, again focusing on the deprivation and willfulness elements of § 242. Bourget first argues that, although the court correctly stated that the pain inflicted by Bourget must have been inflicted "maliciously and sadistically" to find an Eighth Amendment violation, the jury instructions failed to define those terms. Second, he takes issue with the instruction's characterization of the requisite state of mind, critiquing the jury instructions because they did not explicitly state that "inadvertence" or "deliberate indifference" were insufficient and instead focused on "all of the circumstances." Relatedly, Bourget argues that the instructions could have erroneously given the jury the impression that the willfulness element was met as long as he intentionally used the shield to strike KT.

But, fatal to Bourget's argument on appeal, the jury instructions given by the district court on these two elements

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were materially identical to the instructions requested by Bourget. "When a party affirmatively requests a particular jury instruction, that party waives its right to challenge that instruction on appeal." United States v. Ruiz, 999 F.3d 742, 749 (1st Cir. 2021). Bourget has not pointed us to any unusual circumstances that would cause us to stray from our usual rule, and we see no reason to do so. See id. Thus, Bourget has affirmatively waived any argument that the jury instructions on these elements were improper. Accordingly, Bourget's jury-instruction argument fails.

C. Exclusion of the Sion video Bourget next argues that exclusion of the Sion video violated his right to present a complete defense.8 He contends that the exclusion impaired his ability to (1) "demonstrate that the manner of his entry into KT's cell was consistent with his understanding of the appropriate level of force to be used by the number 1 officer in a forced cell move" and (2) "counter the government's extensive expert testimony that Bourget's actions

8Bourget, at times, attempts to "frame [his] evidentiary grievances as a constitutional issue" but does not distinguish his argument from the run-of-the-mill evidentiary issues parties often raise. See United States v. Pena, 24 F.4th 46, 70 (1st Cir. 2022). Thus, we follow our usual framework and examine whether the district court abused its discretion in its evidentiary determinations.

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were inconsistent with the training and implementation of BOP policy on the use of force."9 Criminal defendants are guaranteed "a meaningful opportunity to present a complete defense." DeCologero, 530 F.3d at 72-73 (quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)). However, that right "is subject to reasonable restrictions," such as through the promulgation of the Federal Rules of Evidence, including Rules 401 and 403, which are at issue here.10 Id. at 73 (quoting United States v. Scheffer, 523 U.S. 303, 308 (1998)).

We review a district court's exclusion of evidence under Rules 401 and 403 for abuse of discretion. United States v. Wallace, 461 F.3d 15, 28 (1st Cir. 2006); United States v. Stewart-Carrasquillo, 997 F.3d 408, 421 (1st Cir. 2021). "Under Rule 401, evidence is relevant if it has 'any tendency to make a fact [of consequence] more or less probable.'" United States v. Shafa, 175 F.4th 1, 16 (1st Cir. 2026) (alteration in original)

9 Bourget cursorily suggests that the exclusion of other evidence showing his "lack of prior discipline for prior forced cell moves" was also "erroneous." Given the lack of developed argumentation, any such argument is waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

10 Although the government focuses on the Sion video being inadmissible under Rule 404 as "other acts" evidence, we need not dive into the applicability of that rule because (1) evidence must always be relevant under Rules 401 and 402 and (2) the analysis of Rule 404 would require the evidence to satisfy Rule 403 as well. See United States v. García-Sierra, 994 F.3d 17, 29 (1st Cir. 2021). And because we can resolve the issue before us under Rules 401 and 403, we need go no further.

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(quoting Fed. R. Evid. 401). "Our review as to a district court's relevancy determination is 'quite deferential,' . . . and such determinations provide grounds for reversal only in 'exceptional cases.'" United States v. Armenteros-Chervoni, 133 F.4th 8, 27 (1st Cir. 2025) (first quoting United States v. Pina-Nieves, 59 F.4th 9, 21 (1st Cir. 2023); and then quoting Cummings v. Standard Reg. Co., 265 F.3d 56, 63 (1st Cir. 2001)).

Even if evidence is relevant, "[u]nder Rule 403, a district court may exclude evidence when its probative value is substantially outweighed by the danger of unfair prejudice." Stewart-Carrasquillo, 997 F.3d at 421. In our review, "[w]e give great deference to a district judge's balancing of probative value versus unfair prejudice." Id. (quoting United States v. Breton, 740 F.3d 1, 14 (1st Cir. 2014)). "An abuse of discretion occurs when a relevant factor deserving of significant weight is overlooked, or when an improper factor is accorded significant weight, or when the court considers the appropriate mix of factors, but commits a palpable error of judgment in calibrating the decisional scales." United States v. Frabizio, 459 F.3d 80, 91 (1st Cir. 2006) (cleaned up) (quoting United States v. Gilbert, 229 F.3d 15, 21 (1st Cir. 2000)).

Given the deferential lens of our review, we hold that the district court did not overlook a relevant factor, improperly

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weigh the considerations at play, or commit any error in judgment in excluding the Sion video. We explain why we think this is so.

We begin with Rule 401. Bourget argues that the Sion video is relevant to his intent, as it shows his understanding of the high level of force that was to be used in a forced cell move, especially by the first officer to enter. Bourget further argues that even if the Sion video was not used to train officers on how to enter a cell or complete a forced cell move, just showing the video in training for any purpose without criticizing the use of force therein "gave tacit approval" to the high level of force officers used when striking Sion.11 We first dispatch Bourget's argument that the Sion video portrays how he was officially trained on completing a forced cell move at FMC Devens and is thus directly relevant to his understanding of the level of force to be used. Bourget did not provide any evidence or support for his argument that the Sion video was shown for the purpose of training on how to complete a forced cell move. Rather, Bourget leaned heavily on Bollinger's

11Bourget also argues that he needed the Sion video to counter the government's expert witnesses, including Bollinger, who testified regarding BOP policies. But this argument is a repackaging of his other arguments -- that the Sion video was further evidence of the training he received. He is simply reframing the same idea that he would have used the Sion video as evidence of his training, which he believes would have supported some of the evidence regarding his training and contradicted other evidence.

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testimony in the first trial to make that argument, insisting that Bollinger had testified that the video was shown in training "as essentially the way to do a proper forced cell move." So when the district court was asked to determine admissibility, it did not need to "resolve[] for itself" any "competing inference[s]" regarding the import of the video or assess the "credibility" of Bollinger's explanation about how and why the video was used in training, as the dissent here suggests. Instead, after Bourget argued that Bollinger had testified that the Sion video was used to illustrate a proper cell move, it was a simple matter of checking the transcript -- which revealed that Bollinger in fact said the opposite. In short, relevancy came down to a question of what Bollinger said, not whether his statements were credible.

As the district court observed, Bollinger's testimony at the first trial emphasized that the Sion video was shown in training only to teach how to transition from one type of use of force to another, and there was no evidence that it was used to teach how to perform a forced cell move. Accordingly, we find that the Sion video is not relevant to show how Bourget was actually trained on entering a cell during a forced cell move.

That leaves us with Bourget's argument that showing the Sion video at training "gave tacit approval" of the level of force used to enter Sion's cell and so was relevant for that purpose. In other words, Bourget argues that even if the Sion video was not

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used to train him on how to complete a forced cell move, by showing the video at training, he was led to believe that the entry into the cell in the Sion video was proper. However, even if playing the video tacitly approved the entry into the cell under the circumstances present in the Sion video, those circumstances were so different from the circumstances with KT that the relevance of the Sion video to Bourget's state of mind here is, at most, minimal verging on non-existent. Let us explain.

The videos of the two incidents involving KT and Sion illustrate the stark contrast in the circumstances of the two men. Most noticeably, KT's hands were handcuffed behind his back, while Sion was not handcuffed at all, and Bourget led the team into KT's cell holding a large shield before him (which he used to strike KT and force him to the ground), but no shields were used when entering Sion's cell. Additionally, where KT stands directly in front of the holding cell with his hands tied securely behind his back, Sion is pictured lying in his bed, unrestrained, and when pepper spray and pepper bombs are used against Sion, he is able to freely move around his cell and use his hands to wash the spray from his face in a sink. KT cannot use his hands at all, either offensively or, as Sion does, to help mitigate the effects of pepper spray. KT is also standing still in full view of the officers when they enter the cell; Sion, on the other hand, is

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walking around and seems to move at least partially out of the officers' view.

But other differences are evident as well. Prior to entry, in KT's case, only pepper spray had been used, twice. In Sion's case, many different escalating types of force had been used before the final physical entry into the cell, and Sion still did not comply. Also, as the district court noted, the two inmates were different men, had different prison behavioral histories, and were in different physical conditions.

For these reasons, even if showing the Sion video at training gave "tacit approval" of all the officers' actions in that video, those actions were hardly relevant to the entry into KT's cell, which involved such different circumstances. But we need not reach the ultimate issue of relevance here because we find that, even if the video was minimally relevant to Bourget's willfulness, its minimal probative value was far outweighed by the risk of the dangers discussed in Rule 403, as the district court properly found.

We begin our analysis of the probative value of the Sion video by again recognizing that our review of the district court's decision here is highly deferential. Stewart-Carrasquillo, 997 F.3d at 421. And, as noted above, the district court held that any probative value of the Sion video was substantially outweighed by the risk of confusion and unfair prejudice. Our deference to

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the district court is particularly strong here where the district court was uniquely familiar with the evidence, as it had both viewed the Sion video and seen how the video was utilized in the first trial, and where Bourget made clear he intended to use the Sion video in the same way he had in the first trial. See United States v. Nelson-Rodriguez, 319 F.3d 12, 34 (1st Cir. 2003) (noting that trial courts are given wide discretion in their Rule 403 rulings); DeCologero, 530 F.3d at 52 (noting prior proceedings had made trial judge "particularly aware of and sensitive to the complexity of" the case and the issues before it). Where the trial court is left to make this kind of judgment call, we will give "considerable leeway" to that judgment. See United States v. Simonelli, 237 F.3d 19, 23-24, 26-27 (1st Cir. 2001) (quoting United States v. Mazza, 792 F.2d 1210, 1215 (1st Cir. 1986)). This makes sense, "since the trial judge 'is more directly familiar than a court of appeals with the need for the evidence and its likely effect.'" Nelson-Rodriguez, 319 F.3d at 34 (quoting United States v. Lau, 828 F.2d 871, 874 (1st Cir. 1987)).

Turning to Rule 403's focus on probative value, we find that the probative value of the Sion video was minimal for many of the same reasons the video is largely irrelevant. See United States v. Villa-Guillen, 102 F.4th 508, 517 (1st Cir. 2024) (discussing relevance and probative value together). Although Bourget claims the Sion video demonstrates the high level of force

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used by a lead officer in a forced cell move and that it is relevant to his intent and understanding of the level of force used to enter a cell, the Sion video provided, at most, "only indirect support" for Bourget's defense related to his state of mind. See United States v. Abdelaziz, 68 F.4th 1, 73 (1st Cir. 2023) (finding that excluded evidence would have "provide[d] only indirect support" for defendant's claim related to his thought process). As we made clear in our discussion of the relevance of the video, showing the Sion video, at most, gave only "tacit approval" of the manner of entry into the cell there. But the circumstances in the Sion video were so different from the incident with KT that any "tacit approval" would carry minimal probative value.

The differences between the circumstances in the Sion video and the incident involving KT contribute heavily to our Rule 403 analysis. Surely, the greater the differences, the lower the probative value. What if the proposed video had even more differences? If the inmate had a weapon or the video took place in a different prison? It is difficult for us to see how, if we injected further variables, those different variables would not bear on the admissibility of the proposed video. The weight of the evidence is vital in making a determination under Rule 403. See United States v. Tkhilaishvili, 926 F.3d 1, 15 (1st Cir. 2019) (framing the balancing test under Rule 403 as "gaug[ing] probative

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weight against prejudicial effect" (quoting Veranda Beach Club Ltd. P'ship v. W. Sur. Co., 936 F.2d 1364, 1373 (1st Cir. 1991))).

Additionally, although Bourget argued to the district court that the video was meant to show the type of training he received, the district court correctly found that the video's admission was not necessary for Bourget to make that argument. And the record reveals that a number of officers testified about their training in a way that supported Bourget's argument: several officers stated that they were trained to always enter cells at "100 percent" or "full speed"; and another officer testified that while entering the cell with a shield for a forced cell move, "[y]ou go in as fast as you can." See United States v. García-Sierra, 994 F.3d 17, 33 (1st Cir. 2021) (finding independent evidence of the same nature "undermined the marginal value" of the evidence at issue). And to the extent that Bourget sought to introduce evidence in the second trial that he was not specifically trained about how to use a shield, one training video in isolation that does not itself involve the use of a shield does not significantly further this argument, particularly when the testimony at trial regarding the minimal training provided on using a shield was generally consistent.

The dissent suggests that the Sion video played a major role in the first trial and that its exclusion in the second, "gutted the heart of Bourget's defense." But in the first trial,

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defense counsel centered its closing argument on the testimony of the defendants and other correctional officers, only briefly referring to the Sion video and noting that a shield was not used in that video.12 Given the lengthy testimonial evidence and the limited use of the Sion video at the first trial, exclusion of the video did not significantly curtail Bourget's defense as the dissent posits. The Sion video was merely repetitious of the significant testimonial evidence regarding how Bourget was trained, further minimizing the video's probative value.13 And when we examine that minimal probative value against the dangers outlined in Rule 403, it is clear the danger present here substantially outweighs this minimal probative value. As the government argues, admitting the Sion video presented a high risk

12 The dissent correctly notes that defense counsel told the jury, "[y]ou have [the Sion] video and you'll be able to see it." However, when read in context, defense counsel made this point to counter an exhibit, an internal BOP memorandum, that suggested Bourget had used a shield during the Sion entry. But, as defense counsel argued during closing, while a shield was used in the Sion forced cell move to cover the hinged slot in the cell door (also referred to as a "trap"), it "wasn't used in the forced cell move. You have that video and you'll be able to see it and we showed it here in court that [Bourget] did not go in with a shield on that forced cell move. It was only used to cover the trap."

13 The dissent likens the Sion video to the photographs and videos of child sexual abuse discussed in a child pornography case, United States v. Ross, 171 F.4th 522, 531 (1st Cir. 2026). We think the evidence here is distinguishable for a number of reasons, but, most importantly, the visual depictions there were evidence of the crime itself, not depictions of an entirely different incident. Evidence of the crime obviously carries a significantly higher probative value, even when there is other corroborating evidence.

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of jury confusion. Admission could have implied that the Sion video was particularly important to forced cell moves or that it depicted a typical level of force utilized in a forced cell move when, in fact, nothing in the record establishes that either of those things are true.

Thus, it was reasonable for the district court to conclude that the danger the Sion video presented substantially outweighed the marginal probative value of the video. "We see nothing 'extraordinarily compelling' with this case which would require us to second-guess the district court's conclusions and re-balance [its] consideration[s]." See United States v. Soto, 799 F.3d 68, 92 (1st Cir. 2015). Accordingly, the district court did not abuse its discretion when deciding to exclude the Sion video.14

14 Because we find no error, we need not discuss harmlessness. However, we note that although the dissent suggests that the change in outcome between the trials shows that exclusion of the Sion video likely affected the verdict, we do not see how that can be so on this record. The fact, alone, that the Sion video was shown in the first trial, which ended in a hung jury, but not shown in the second trial, which ended in a conviction, is not sufficient to convince us. The first trial had additional counts and significantly more evidence for the jury to consider than the second trial, including the testimony of the defendants themselves. Thus, a number of factors could have contributed to the change in outcome. And we cannot conclude that the showing or not showing of the video was the determinative factor.

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D. Challenged Testimony of Captain Quinn Next, Bourget argues that he was prejudiced by the admission of hearsay and improper lay opinion evidence. Specifically, he points to Captain Quinn's testimony about the officers' reactions to watching the video of the incident. Quinn testified that when the officers watched the video of the incident with KT, another officer stated that "it was bad." Quinn elaborated that he believed the officer meant that the use of force against KT "probably was not a policy move." Quinn also testified that his immediate reaction was that the video "was bad."

The government, in turn, argues that Bourget has failed to explain why this evidence is not hearsay testimony admissible as a present sense impression under Rule 803 of the Federal Rules of Evidence, as the district court found. The government also claims that Bourget has waived any argument that these statements were improper lay opinions, as he never raised that argument before the district court and does not argue plain error before this court.

Before the district court and prior to trial, Bourget argued that testimony that officers said the video "looked bad" should not be allowed. He argued that "[s]uch evidence is clearly prejudicial." In response, the government argued that this testimony was admissible as present sense impressions under Rule

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803. Bourget later argued that the statements did not meet the requirements under Rule 803.

On appeal, as the government correctly notes, Bourget did not argue against the applicability of Rule 803 in his opening brief. In his reply brief, he argues for the first time that these statements do not meet the requirements to be admitted into evidence as present sense impressions under Rule 803. However, Bourget's failure to address an exception relied upon by the district court in his opening brief waives any such argument. United States v. Henry, 848 F.3d 1, 7 (1st Cir. 2017). And Bourget does not raise any argument as to why we should not follow this well-established appellate rule.

As to Bourget's argument that Quinn's testimony was improper lay opinion testimony, Bourget never raised that argument before the district court. Thus, at best, we can only review this argument for plain error. United States v. De La Cruz, 91 F.4th 550, 551 n.1 (1st Cir. 2024). However, Bourget also never addresses plain error in his briefing; accordingly, any such argument is waived. See id. (finding that failure to address the plain-error test results in the claims being deemed "waived for lack of developed argumentation").

For these reasons, Bourget's arguments regarding Quinn's testimony are waived.

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E. Cumulative Error

Lastly, Bourget argues that the alleged errors discussed above, in combination with a number of errors he did not raise before the district court and does not meaningfully develop on appeal, together amount to cumulative error that prejudiced him and, therefore, warrant a new trial.

"Cumulative error may require reversal 'because individual errors, insufficient in themselves to necessitate a new trial, may in the aggregate have a more debilitating effect and thus add up to prejudice.'" United States v. O'Donovan, 126 F.4th 17, 46 (1st Cir. 2025) (quoting United States v. Baptiste, 8 F.4th 30, 39 (1st Cir. 2021)). However, "the operation of that principle depends on the existence of two or more errors." United States v. Stokes, 124 F.3d 39, 43 (1st Cir. 1997).

We have already discussed above why Bourget's asserted errors were not errors at all, with the exception of the waived arguments on jury instructions and Captain Quinn's testimony, on which we did not provide our view on whether admitting that evidence was error. Yet Bourget does not argue why these waived errors together (if they are errors), or in combination with other errors, would rise to the level of cumulative error. Instead, Bourget focuses on throwing a number of new issues at the wall to see what sticks. Yet he does nothing to develop any of these issues. He does not discuss how they were raised below, if they

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were raised below, what the standard of review is, or any other relevant arguments. So, again, we find his claims are waived for failure to make "some effort at developed argumentation." United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

III. Conclusion

For the foregoing reasons, we affirm Bourget's conviction.

-Concurring and Dissenting Opinions Follow-

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KAYATTA, Circuit Judge, concurring. I join Judge Montecalvo's opinion in full. I write separately only to explain why I view the exclusion of the Sion video as a simple and straightforward application of judgment by an experienced and able trial judge who had a front row seat -- twice -- to what was actually being contested in this case.

The government's theory did not rely at all on the speed of entry into KT's cell. Indeed, in closing, the prosecutor said, "[Y]es, you go in fast. . . . Of course you should go in quickly." Instead, the focus of the trial -- quite understandably -- was on Bourget's use of a "shield as a weapon to make an upper cut into [KT]'s face and chin." But no shield was used in any way in the Sion video. So the video either would have harmed the defense -- by showing that a forced cell move could be accomplished without a shield, much less without using a shield as an offensive weapon -- or it would have served as a red herring that might have led to confusion as jurors scratched their heads trying to ponder its relevance. Either way, it was well within the trial judge's discretion under Federal Rule of Evidence 403 to exclude the Sion video.

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LYNCH, Circuit Judge, dissenting. With the greatest respect, I conclude that defendant Bourget did not receive a fair trial in this second prosecution for the same criminal charge under 18 U.S.C. § 242. The prosecution had the burden of proving beyond a reasonable doubt that Bourget "willfully subject[ed]" KT "to the deprivation of any rights, privileges, or immunities secured or protected by" the Eighth Amendment. See 18 U.S.C. § 242. In the first trial, before a jury, the government did not secure convictions on either of the two charges against Bourget, and the jury acquitted him on the first charge. The second trial was the government's next effort to secure a conviction on the second charge, as to which the first jury had hung.

The district court in this retrial, after a mistrial, erred in excluding the highly relevant Sion video, which had been presented to the jury in the first trial, where the jury was unable to reach a verdict on the charge that Bourget violated § 242 by striking KT with the shield during a forced cell move. That exclusion gutted the heart of Bourget's defense that he lacked any intent to violate KT's right to be free from cruel and unusual punishment, his defense that he had been trained to enter cells at full speed during forced cell moves but had never been trained how

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to use a shield in doing so,15 his defense that his superiors were responsible for inadequate training and had every reason to scapegoat him, and his defense that KT's injuries occurred in consequence of those failures by his superiors. The difference in outcomes between these two sequential criminal prosecutions underscores the high likelihood that the erroneous exclusion of the Sion video affected the verdict. In excluding the video, the trial judge violated binding precedent and impermissibly weighed the credibility of witnesses. It was the jury's role to decide these questions.

The district court excluded the evidence on two grounds:

that the video was not relevant, and that its admission would unfairly prejudice the prosecution and confuse the jury. The video was obviously relevant. This conviction cannot stand in light of the district court's erroneous reasoning that admission of the Sion video would unfairly prejudice the prosecution and confuse the jury, grounds that the government did not even argue at the second trial. At the first trial, the Sion video, showing Bourget leading a team of five officers into Sion's cell during a forced cell move, was admitted without objection from the prosecution. As the video played for the jury, the prosecution objected only to

15 The term "forced cell move" refers to the BOP procedure in which, after the cell door is unlocked and opened, a team of officers enters the cell to restrain and move the inmate.

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an earlier portion, on the limited ground that "the prior part . . . doesn't involve [Bourget]." The prosecution made no claim at the first trial of irrelevance, unfairness to the government, or confusion to the jury, and for good reason. The prosecution's about-face at the second trial greatly increased the likelihood of Bourget's conviction because the jurors were deprived of seeing the video evidence at the heart of his defenses.

The Supreme Court has recently cautioned that courts must be careful to avoid "negative systemic consequences for prison officials" and interference with "the 'inordinately difficult undertaking' of running a prison." Goldey v. Fields, 606 U.S. 942, 944 (2025) (quoting Turner v. Safley, 482 U.S. 78, 84-85 (1987)). The Court has also recognized that prison administrators are entitled to "wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security." Hudson v. McMillian, 503 U.S. 1, 6 (1992) (quoting Whitley v. Albers, 475 U.S. 312, 321-22 (1986)). Here, the jury was deprived of key evidence bearing on how FMC Devens trained its officers and whether Bollinger's later use of the Sion video during annual training conveyed tacit approval of Bourget's conduct as lead man in that earlier forced cell move, matters directly implicating the Supreme Court's concerns about judicial interference with prison administration, policies, and practices.

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I. The Sion Video Was Improperly Excluded The majority errs in concluding that the Sion video was not relevant to show how Bourget was trained to enter a cell during a forced cell move and in its further assertion that the video had, at most, minimal relevance to his state of mind.

The Sion video easily cleared Rule 401's low threshold because it bore directly on whether the government had carried its burden to prove beyond a reasonable doubt that Bourget acted willfully, that is, with the specific intent to deprive KT of his Eighth Amendment rights. Evidence is relevant if it "has any tendency to make a fact [of consequence] more or less probable than it would be without the evidence." Fed. R. Evid. 401 (emphasis added). "'[R]elevancy is a very low threshold' that only requires the tendered evidence to 'move the inquiry forward to some degree.'" United States v. Rathbun, 98 F.4th 40, 51 (1st Cir. 2024) (quoting United States v. Cruz-Ramos, 987 F.3d 27, 42 (1st Cir. 2021)); see also Neece v. City of Chicopee, 106 F.4th 83, 93 (1st Cir. 2024) (explaining that relevant evidence "need not definitively resolve a key issue in the case" (quoting United States v. Rathbun, 98 F.4th 40, 51 (1st Cir. 2024))).

The excluded Sion video did far more than merely "move the inquiry forward" here. It provided substantial support for Bourget's contention that KT's injuries were not the consequence of any intent to violate his Eighth Amendment rights. On Bourget's

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theory, KT's injuries resulted from his superiors' approval of the methods employed in the Sion video and the superiors' failure to train Bourget and other officers on how to handle forced cell moves in different circumstances, including with a shield. The testimony of other officers on the entry team that they, too, were trained to enter at "100 percent" or "full speed" further supported the relevance of the Sion video. The number two officer testified that he was trained to enter at "100 percent speed" by "every single person above [him]" when conducting a forced cell move. The number four officer testified that he was trained to "always enter at 100 percent" speed. And the number six officer, who followed the team with the video recorder and testified as a government witness, agreed that officers are instructed to "go in 100 percent, full speed" during a forced cell move. That testimony reinforced the Sion video's relevance to the hotly disputed issue of Bourget's intent by showing that what it depicted -- Bourget, as the number one officer, entering the cell forcefully and at high speed -- was consistent with how the officers were trained to enter a cell during a forced cell move. See United States v. Proano, 912 F.3d 431, 439 (7th Cir. 2019) (holding that an officer's training is relevant to willfulness under § 242 because acting "in accordance with his training could make it less likely that he acted willfully"); United States v. Rodella, 804 F.3d 1317, 1338 (10th Cir. 2015) (upholding admission of officer's pursuit

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training as relevant to show that he knew his pursuit was unlawful and acted willfully under § 242).16 The majority's emphasis on the fact that defense counsel referred expressly to the Sion video only briefly in his closing argument at the first trial misses the point. The first jury had already seen the Sion video, and counsel expressly reminded the jurors that "[y]ou have that video and you'll be able to see it." Counsel accordingly focused his closing on the testimonial evidence that gave the video its significance. He repeatedly emphasized that there was "no policy" governing use of the shield, that the KT move was the first time in Bourget's ten years at FMC Devens that he had used the shield in a forced cell move, and that the absence of training was "of vital importance" to this case. Counsel's shorthand for these points was: "Told and not taught." He also contended that the decision to undertake the forced cell move "comes from above," and the decision to use the shield "comes

16 The majority's own sufficiency analysis confirms that an officer's training is probative of willfulness under § 242. In rejecting Bourget's sufficiency challenge, the majority relies on "competing evidence as to how officers were trained and how much force should have been used in this circumstance under that training," and cites the Eleventh Circuit's decision in United States v. Hill, 99 F.4th 1289, 1307 (11th Cir. 2024), for the proposition that "where the officer's actions so obviously violate his training on the use of force, a jury may infer that the violation was willful." Logically, the converse follows: if an officer's departure from his training may support an inference of willfulness, evidence that Bourget understood his conduct to be consistent with his training supports the opposite inference.

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from up higher." Once the forced cell move was ordered, counsel argued, the officers "have to follow the order" and "have to go in at full speed." Later in his closing, counsel made clear what following that order meant: Bourget had to enter the cell at "full speed, full force," whether the inmate was "cuffed" or "uncuffed," because "that's what [officers are] told and that's how they have to do it." Counsel also expressly noted that Bourget "did not go in with a shield" in the Sion forced cell move. Counsel ultimately tied these points directly to the issue of intent, stating that Bourget "went in with a shield, something he wasn't trained on, told to go full speed, and that's what he did." The prosecution itself described defense counsel's repeated contention during closing argument that officers were required to enter at "a hundred percent full speed" as "[o]ne of the most important things" and "the difference in this case more than anything else."

Bourget presented the same defenses at the second trial, but without the jury having seen the Sion video, much less having it in the jury room during deliberations. In his opening statement to the jury, defense counsel represented that the BOP "didn't offer training, they didn't show how to use [the shield], and they thr[ew] these officers in this situation without any how-to." Counsel again stressed in closing that Bourget had "no training on that shield, none. Zero," and that, once a forced cell move was authorized, officers were required to enter "forcefully, full

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speed, a hundred percent." Counsel argued that "upon entry into that cell, it's full force, full speed," and emphasized that there were "11, 12 hundred pounds behind . . . Bourget as he went in [KT's cell], pushing him through like a train." Counsel expressly tied the supervisory and training failures to Bourget's state of mind, stating that the officers were "thrown in the situation," "given a tool that they're not instructed or taught on and told, Go do it," and then "blame[d] . . . if something goes wrong." That, counsel argued, was "not willfulness" but "lack of knowing." The prosecution likewise treated these issues as part of the dispute over the element of willfulness. It informed the jury that it would focus most of its closing on "the defendant's willfulness" and argued that even if "there's no specific BOP policy on the shield," even if Bourget "had no hands-on training on the shield," and even if "the supervisors made all the decisions to do the move and use the shield," "it was still a crime for Bourget to use excessive force." In rebuttal, the prosecutor characterized as "the primary argument in this case" the defense's contention that officers conducting a forced cell move were instructed to enter at "full speed and full force."

The excluded Sion video would have reinforced the defense's theory that KT's injuries were not the product of Bourget's willful intent to violate KT's rights, but instead resulted from decisions by Bourget's BOP superiors to send a

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five-officer team into KT's cell during the forced cell move, to authorize use of the shield with Bourget as the lead man, and to do so without adequately training him how to use the shield in that role. There is no doubt that Bourget made these arguments at the second trial. But argument was no substitute for the excluded evidence. The jury was expressly instructed that "[a]rguments and statements by lawyers are not evidence" and that it was to decide the case "solely on the evidence received during the trial." The excluded Sion video would have allowed the jury to see for itself how Bourget had previously performed the number one role in a forced cell move and to assess whether his conduct toward KT reflected willful intent or, as he argued, his application of a familiar entry method with a tool on which he had received no hands-on training. Seeing is believing.

The Sion video was not, as the majority concludes, "merely repetitious" or cumulative of the officers' testimony about their training.17 See United States v. Ross, 171 F.4th 522,

17 The majority overreads United States v. García-Sierra, 994 F.3d 17 (1st Cir. 2021), in treating the officers' testimony as diminishing the Sion video's probative value. There, the challenged evidence had only "marginal permissible relevance," id. at 32, and we noted that the government had introduced "ample evidence establishing" the same fact "apart from" that evidence, such that the "independent evidence . . . undermined [its] marginal value," id. at 33. Here, the officers' general testimony described the instruction to enter a cell at full speed; it simply could not show what the Sion video did: how Bourget himself, as the number one officer, actually carried out such an entry.

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531 (1st Cir. 2026) ("[P]hotos and videos convey a pictorial accuracy and detail that words cannot duplicate and that advocates cannot spin." (quoting United States v. Long, 92 F.4th 481, 486 (3d Cir. 2024))); cf. United States v. Shows Urquidi, 71 F.4th 357, 374 (5th Cir. 2023) (concluding that critical photographic evidence was not cumulative because it "provided support to witness testimony"). Nor did the video's relevance depend on whether Bollinger used it specifically to train officers on how to conduct a forced cell move. Quite apart from its use in training, the video demonstrated exactly what Bourget himself had done previously as the lead man in an earlier forced cell move: "forcefully lowering his shoulder into the unresisting Sion at full speed and launching him into a wall." Bollinger later used the video in BOP's annual training and agreed that the use-of-force team had done an "excellent job." The record also showed that Bourget completed all four days of that year's annual refresher training, permitting a reasonable jury to find that he saw the Sion video during that training.18 That evidence strongly supported Bourget's argument that he understood his conduct in the

The majority's reliance on United States v. Abdelaziz, 68 18

F.4th 1, 73 (1st Cir. 2023), is misplaced. There, in explaining why evidence concerning USC's donation acknowledgment practices provided only "indirect support" for Wilson's asserted state of mind, we emphasized that Wilson did not contend that he was aware of those practices when he filed his tax return. Id. Here, by contrast, the evidence permitted the jury to find that Bourget had seen the Sion video in annual training before the charged conduct.

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Sion move to have been approved by his supervisors and that he acted consistently with that understanding during the KT forced cell move, rather than with an intent to violate KT's Eighth Amendment rights.19 The Sion video was also relevant to the jury issue of whether the later explanations by Bourget's superiors and other BOP officials, including the explanations relied on by the district court to justify exclusion, were tainted by their own self-interest in avoiding blame. Captain Bollinger and Heidy Baez-Patino, the Assistant Correctional Services Administrator for the Central Office of the Bureau of Prisons, were allowed to testify as to their version of the protocols regulating use of force at FMC Devens. The Sion video would have provided the second jury with a visual record against which it could evaluate those witnesses' descriptions of proper use-of-force procedures. In particular, if the jury found that the video depicted Bourget acting consistently with the practices that were approved by his supervisors, it could

19 The government contends that Bourget forfeited any argument that the Sion video showed a "typical use of force" or would "adjust the jury's expectations" because he did not make those points before the district court. The record is to the contrary. Bourget argued that "[t]he Sion video is used each year in the annual training by the captain, who is one of the government's witnesses, . . . as essentially the way to do a proper forced cell move" and that the video showed "how the forced cell moves at FMC Devens are conducted." Those arguments squarely presented the substance of the points the government now claims were forfeited.

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question Bollinger's attempt to characterize the video as relevant only to the transition between levels of force. The video thus bore directly on the credibility of the government's witnesses.

The government, and now the majority, place considerable weight on the differences between the Sion forced cell move and the KT forced cell move, including that no shield was used in the Sion move, Sion was not restrained, additional measures were used before officers entered Sion's cell, and the two forced cell moves were undertaken under some different circumstances. But those differences did not render the Sion video irrelevant to Bourget's state of mind. Indeed, some of them reinforced the defense's theory. Lieutenant Lyons testified that, during a calculated use of force, the speed of the officers' entry into a cell does not change depending on whether the inmate is handcuffed: the officers enter at "[f]ull speed" regardless. And the absence of a shield in the Sion move was central to Bourget's argument because he had received no hands-on training on the shield's use. The Sion video illustrates the speed that Bourget had used, and was approved to use, in an earlier forced cell move at FMC Devens, and shows Bourget applying force with both arms and his chest to drive the prisoner against the wall and into a handrail before tackling him to the floor and landing on top of him with his full body weight. The similarities between the Sion and KT moves easily gave the video "any tendency" to make it less probable that Bourget acted

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with the specific intent to violate KT's Eighth Amendment rights. Fed. R. Evid. 401. For purposes of Rule 401, the differences emphasized by the government and the majority went to the weight the jury might give that inference, not whether the video was relevant at all. See United States v. Mehanna, 735 F.3d 32, 65 (1st Cir. 2013) (rejecting a challenge to the evidence's admissibility based on a competing inference because jurors may "choos[e] among reasonable but competing inferences extractable from proven facts"); United States v. Weadick, 15 F.4th 1, 18-19 (1st Cir. 2021) (holding that evidentiary weaknesses bearing on the inference to be drawn "go to the weight of the evidence, not to its admissibility"). Yet, without the Sion video, the jury never had the opportunity to make that assessment for itself.

To the extent the district court viewed the Sion video's relevance to Bourget's intent as turning on whether the video's use in annual training signaled that his supervisors approved Bourget's manner of entry and use of force, Rule 104(b) required the court to ask only whether a reasonable jury could find that conditional fact by a preponderance of the evidence.20 In United States v. Trenkler, 61 F.3d 45, 53 (1st Cir. 1995), we held:

Under Federal Rule of Evidence 104(b), "[w]hen the 20

relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later." Fed. R. Evid. 104(b).

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[I]n determining whether the Government has introduced sufficient evidence to meet Rule 104(b), the trial court neither weighs credibility nor makes a finding that the Government has proved the conditional fact by a preponderance of the evidence. The court simply examines all the evidence in the case and decides whether the jury could reasonably find the conditional fact . . . by a preponderance of the evidence.

(omission in original) (quoting Huddleston v. United States, 485 U.S. 681, 690 (1988)). Importantly, as the Advisory Committee that drafted the proposed Rules explained, "[i]f preliminary questions of conditional relevancy were determined solely by the judge . . . the functioning of the jury as a trier of fact would be greatly restricted and in some cases virtually destroyed. These are appropriate questions for juries." Fed. R. Evid. 104 advisory committee's note to subdivision (b). The Sion video easily cleared Rule 104(b)'s threshold. Bollinger's testimony that he showed the Sion video principally to illustrate transitions between levels of force did not foreclose the separate inference favorable to Bourget's defenses that Bollinger's use of the video in annual training without criticism or even comment on Bourget's manner of entry, coupled with Bollinger's agreement that the use-of-force team in the video had done an "excellent job," signaled approval of Bourget's actions as the lead officer. See United States v. Giang, 174 F.4th 196, 205 & n.4 (1st Cir. 2026) (holding under Rule 104(b) that arguments about whether the evidence supported

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the proposed inference went "to the weight of that evidence, not its admissibility," id. at 205, and explaining that the fact "[t]hat the evidence was subject to multiple plausible interpretations [was] no reason to exclude it," id. at 205 n.4). The district court here resolved for itself the very competing inference that Rule 104(b) reserves for the jury. It was also the jury's, not the district court's, role to evaluate "information as to bias" and "assess the credibility of" Bollinger and Bourget's other supervisors. Udemba v. Nicoli, 237 F.3d 8, 17 (1st Cir. 2001); see also Trenkler, 61 F.3d at 53. The district court did not leave the issue of the credibility of the explanations offered by Bourget's superiors to the jury, though those witnesses had incentives to defend the adequacy of BOP's training and practices and to place blame on Bourget.

The reasons why the Sion video is highly relevant also factor into the Rule 403 analysis. The Supreme Court and our decisions have recognized that "[t]he Constitution guarantees criminal defendants 'a meaningful opportunity to present a complete defense.'" Nevada v. Jackson, 569 U.S. 505, 509 (2013) (quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)); see also United States v. Coleman, 149 F.4th 1, 34 (1st Cir. 2025) (same), cert. denied, No. 25-6945, 2026 WL 1855071 (U.S. June 29, 2026). That guarantee does not "trump valid rules of evidence." Coleman, 149 F.4th at 34 (quoting United States v. Pires, 642 F.3d 1, 14

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(1st Cir. 2011)). Yet Rule 403 permits a court to "exclude relevant evidence" only "if its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, [or] misleading the jury." Fed. R. Evid. 403 (emphases added).21 And "[w]hen proffered evidence relates to the central issue in a case," as here, "it is a difficult matter indeed to show that the prejudicial effect of that evidence substantially outweighs its highly probative nature, as Rule 403 requires." United States v. Soler-Montalvo, 44 F.4th 1, 18 (1st Cir. 2022) (quoting Rubert-Torres v. Hosp. San Pablo, Inc., 205 F.3d 472, 479 (1st Cir. 2000)). Although our review of the district court's Rule 403 ruling is indeed deferential, "[a]n error of law qualifies as an abuse of discretion." Lech v. von Goeler, 92 F.4th 56, 64 (1st Cir. 2024).

In excluding the Sion video, the district court erroneously found that

the probative value is substantially outweighed by any dangerous -- danger of confusion or unfair prejudice, confusion to the jury for the reasons I've stated before, also, to the extent that it's delving into any suggestion of prior good acts. And I know that Mr. Bourget was the first man on that team.

21 Federal Rule of Evidence 403 also identifies "undue delay, wasting time, or needlessly presenting cumulative evidence" as grounds for exclusion. Fed. R. Evid. 403. The government did not argue for exclusion on any of those grounds, and the district court did not rely on any of them in its Rule 403 ruling.

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Neither asserted danger justified exclusion under Rule 403.

As to prejudice, the government argued to the district court only that the Sion video was evidence of "other acts -- good acts offered to show that he didn't commit the crime on this particular occasion." But that was not the basis on which the video was offered by the defense and misstated the issues. Any harm to the prosecution's case flowed from the video's legitimate probative force, not any unfair prejudice. See United States v. Ross, 171 F.4th 522, 529 (1st Cir. 2026) ("In balancing the scales of Rule 403, it is important to note that only unfair prejudice is to be avoided, as, by design, all evidence is meant to be prejudicial." (citation omitted)); Bergus v. Florian, 120 F.4th 14, 25-26 (1st Cir. 2024) (holding that evidence was not unfairly prejudicial where the opposing party offered no reason it would "serve[] only to evoke an improper emotional response" or that any prejudice "substantially outweighed" its probative value).

Nor did the Sion video pose a substantial danger of confusing the issues or misleading the jury. A "forced cell move" at high speed and one hundred percent effort by a team of five guards necessarily involves the use of force. Bourget was selected by his superiors to lead the entry into KT's cell, with four other officers charging in at full speed immediately behind him, including one who stood six feet nine inches tall and weighed 315 pounds. Those decisions, as well as the decisions to conduct the

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forced cell move and to equip Bourget with the shield, were made by his superiors. The Sion video showed what a full-speed entry by Bourget as the number one officer actually entailed, including the force with which he made initial contact with the inmate.

Bourget bore no burden to produce other training videos or otherwise disprove willfulness. The government bore the burden of proving that element beyond a reasonable doubt. If the government knew of other relevant training videos that it believed would show the Sion video to be aberrational or otherwise undermine the inference Bourget sought to draw from it, it could have sought to introduce those videos.

The majority relies on the district court's familiarity with the first trial to justify greater deference to its Rule 403 ruling. But that familiarity cuts against, rather than supports, exclusion of the Sion video.22 The first trial showed that the asserted risk of confusion could be addressed without excluding the video. When the government objected to a portion of the recording that did not involve Bourget, the court directed defense counsel to move forward in the video. On redirect, the government elicited that Sion, unlike KT, was unrestrained and that Bollinger had used the video to illustrate transitions among

It is noteworthy the district court did not rely on the 22

government's stated reasons for excluding but rather on reasons not offered at all by the government.

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less-than-lethal options rather than to illustrate Bourget's conduct. At the retrial, the district court could have employed those same measures to address any residual risk of confusion and, if necessary, given an appropriate limiting instruction. See United States v. SpineFrontier, Inc., 160 F.4th 212, 225 (1st Cir. 2025) (explaining that "a jury instruction may adequately limit the risk of jury confusion" and that "less-onerous mechanisms may be available to address any prejudice"); see also Bergus, 120 F.4th at 27-28 (noting that "the district court likely could have mitigated the potential for unfairness by providing an appropriate limiting instruction if requested"). The differences between the Sion and KT incidents were matters for cross-examination and argument and did not justify excluding the video altogether.

Although at Bourget's second trial the district court recited the phrase "substantially outweighed," it identified no unfair prejudice beyond the video's legitimate probative force. Nor did the court identify any substantial danger of confusing the issues or misleading the jury that could not have been mitigated through cross-examination, argument, and, if appropriate, a limiting instruction. See United States v. Soler-Montalvo, 44 F.4th 1, 19 (1st Cir. 2022) (holding that the district court "needed to explain why the highly probative value of the evidence was so 'substantially outweighed' by the risks of confusing or misleading the jury that the testimony should have been excluded

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wholesale" (quoting Fed. R. Evid. 403)). The district court's wholesale exclusion of the Sion video, which was central to Bourget's defense at both of his trials, simply cannot be reconciled with Rule 403. We have reversed for far less. II. The Effect of the Exclusion is Far from Harmless These errors were not harmless. On this record, we cannot say "it is 'highly probable' that the error[s] did not contribute to the verdict." United States v. Villa-Guillen, 102 F.4th 508, 519 (1st Cir. 2024) (quoting United States v. Kilmartin, 944 F.3d 315, 338 (1st Cir. 2019)). "To evaluate the probable impact of erroneously excluded evidence on the verdict, we consider '[t]he centrality of the evidence, its prejudicial effect, whether it is cumulative, the use of the evidence by counsel, and the closeness of the case.'" Bergus, 120 F.4th at 24 (quoting Lech, 92 F.4th at 64). Those considerations uniformly favor Bourget. At the second trial, the jury deliberated over portions of three days and, after "continued deliberation and thorough review of the evidence," reported that it was "unable to come to any unanimous decision." Only after receiving an Allen charge and deliberating for roughly three more hours did it return a guilty verdict. The Sion video was central to Bourget's defense, noncumulative of the general training testimony from Bollinger and others, and uniquely capable of allowing the jury to assess both Bourget's prior conduct and Bollinger's explanation for using the Sion video in training.

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Circuit precedent requires we reverse the exclusion of evidence here. This court routinely reverses where the district court erroneously excluded evidence highly relevant to a defendant's primary defense. For example, in Soler-Montalvo, an appeal from a conviction for enticing a minor, the district court had erroneously excluded defense expert testimony about "the difference between a desire to actually engage in sexual activity with a minor and mere fantasy and role-playing related to sexual contact with children." 44 F.4th at 11. We held the error was not harmless because the "key issue in the case" was whether the defendant believed the undercover agent with whom he was communicating was thirteen years old, the defendant's "role-play defense turned almost exclusively on the credibility of his testimony," and the excluded expert testimony "could have provided substantial support to [the defendant's] credibility in claiming that he truly believed [the purported minor's identity] was just an assumed identity of another consenting adult." Id. at 19. In Lech, an appeal from a verdict finding defendants not liable on claims arising from the medical care of an incarcerated plaintiff, we held that the district court's erroneous exclusion of "corroborating testimony from the sole person who visited" the plaintiff at the correctional facility was not harmless as to some of the defendants. 92 F.4th at 70-72. We reasoned that "the case centered on a credibility battle" and that the excluded evidence

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would have rebutted "[t]he theme that [the defendants in question] revisited at opening, at closing, in their cross-examination of [the plaintiff], and with virtually every fact witness . . . that the medical providers' account, not [the plaintiff's], was believable." Id. Under Soler-Montalvo and Lech, we cannot say with the required confidence that the district court's exclusion of the Sion video did not affect the verdict.

Circuit precedent also requires reversal for another reason. Lengthy jury deliberations combined with a jury note indicating deadlock also "weigh against a finding of harmless error." United States v. Varoudakis, 233 F.3d 113, 126 (1st Cir. 2000); see also id. at 126-27 ("[T]he three-day length of the jury deliberations, and the jury's note to the trial court that it was 'at an impasse' at the end of the second half-day, weigh against a finding of harmless error" because "[l]engthy deliberations suggest a difficult case" and the impasse note "reveal[ed] uncertainty about [the defendant's] guilt."); cf. United States v. de Jesus-Rios, 990 F.2d 672, 679 (1st Cir. 1993) (concluding under constitutional harmless error review the error was not harmless because "there [wa]s no way for us to discern the role that [the error] played in the jury's deliberations"). The contrast with the first trial sharpens the point.23 The trials were not

23The Sion video most certainly did not hurt Bourget in the first trial, at which he was acquitted on one count. There was

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identical, and the first jury's failure to reach a verdict does not establish that exclusion of the Sion video caused the different outcome. But the jury that saw the video was unable to reach a verdict on the same charge, making it still harder to say with the required confidence that excluding the video from a second trial in which the jury itself reached an impasse had no effect on the verdict.

I respectfully dissent.

good reason his counsel chose to offer it at the second trial. What inferences to draw from the video were for the jury, not the trial judge, to decide. See United States v. Abbas, 100 F.4th 267, 281 (1st Cir. 2024) (holding that "'the jury was entitled to come to whatever rational conclusion it saw fit based on the evidence' before it" (quoting United States v. Buoi, 84 F.4th 31, 38 (1st Cir. 2023))).