United States v. Condron
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Opinion
United States Court of Appeals For the First Circuit
No. 23-1032
UNITED STATES,
Appellee,
v.
CHRISTOPHER N. CONDRON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Indira Talwani, U.S. District Judge]
Before
Montecalvo, Thompson, and Rikelman, Circuit Judges.
Eamonn R. C. Hart, with whom Brann & Isaacson was on brief, for appellant.
Alexia R. De Vincentis, Assistant United States Attorney, with whom Joshua S. Levy, Acting United States Attorney, was on brief, for appellee.
March 28, 2024 RIKELMAN, Circuit Judge. After a fourteen-day trial, a
jury convicted Christopher Condron of wire fraud and conspiracy to
defraud the United States by obtaining payment for false claims.
On appeal, Condron argues that the district court erred in denying
his motion for a judgment of acquittal because: (1) there was
insufficient evidence as to each count to support his conviction;
and (2) the government's argument and evidence at trial
constructively amended, or at least prejudicially varied from, one
of the wire fraud counts. Additionally, he contends that the
district court abused its discretion when it limited his cross-
examination of a key government witness. After careful
consideration of the trial record, we affirm the verdict and
Condron's conviction.
I. BACKGROUND
This case centers on Condron's role in submitting
applications to the United States Department of the Treasury
("Treasury") for grant money in connection with purported
renewable energy projects. The facts here are complicated, and to
put them in context, we begin with an overview of the federal grant
program at issue.
A. The Section 1603 Grant Program
In 2009, Congress enacted section 1603 of the American
Recovery and Reinvestment Act ("Section 1603") to encourage
investments in clean, renewable energy projects. See generally
- 2 - Pub. L. No. 111-5, § 1603, 123 Stat. 115, 364 (2009). Section
1603 provides for cash grants, in lieu of otherwise available tax
credits, to entities that "place[d] in service specified energy
property" within a certain timeframe, id. § 1603(a), including
small wind energy, trash, and open-loop biomass facilities.1
Treasury contracted with the National Renewable Energy
Laboratory ("NREL"), "a government-funded research and development
organization that specializes in renewable energy," to review
Section 1603 grant applications.2 In turn, NREL created and
managed an online portal through which grant-seekers could submit
an application, upload any supporting documents, and respond to
any subsequent requests from NREL seeking additional information.
Under the Section 1603 program, there were two types of
applications: (1) a "placed in service" application; and (2) a
"placeholder" application, also known as a "start of construction"
application. A grant-seeker could submit a placed-in-service
application if the property had been "placed in service" at the
time of the application, meaning it was "ready and available for
1 Open-loop biomass facilities use "cellulosic waste" material
(i.e., plant-derived material like tree bark or sawdust) and/or livestock waste material (e.g., manure) to generate electricity.
2 During all relevant times here, Treasury did not conduct its "own independent review of [an] application aside from NREL's" review.
- 3 - its specific use."3 A placeholder application, by contrast, was
available for a grant-seeker that had begun construction on a
renewable energy project in 2009, 2010, or 2011 that would not "be
placed in service until beyond 2011."
When submitting a placed-in-service application, a
grant-seeker would submit a commissioning report, which was "[a]
report provided by the project engineer, . . . equipment vendor,
or an independent third party that certifie[d] that the equipment
ha[d] been installed, tested, and [was] ready and capable of being
used for its intended purpose." Treasury also required
"documentation to support the cost basis claimed for the property,"
including "a detailed breakdown of all costs included in the
basis." The cost basis was generally the amount that the grant-
seeker spent on the property, including "installation costs and
the cost for freight incurred in construction of
the . . . property." If the grant-seeker claimed a cost basis
that was more than $500,000, Treasury required that it submit "an
independent accountant's certification attesting to the accuracy
of all costs claimed as part of the basis of the property."
After reviewing a placed-in-service application, NREL
would provide Treasury with a report recommending that the
3A grant-seeker could submit a "placed in service" application if its property was placed in service in 2009, 2010, or 2011.
- 4 - application be approved (for a certain amount) or denied. For
those applications that it recommended approval, NREL would assign
a grant award that was up to 30 percent of the cost basis of the
property. For example, if the cost basis was $100,000, NREL would
assign a grant award of up to $30,000. Once NREL recommended that
a particular application be approved, Treasury would then initiate
payment to the grant-seeker via a wire transfer.
Importantly, placeholder applications, or start-of-
construction applications, did not provide an option to request a
grant payment. The purpose of a placeholder application was to
allow a grant-seeker whose property was not yet complete to later
request grant funds once the property was placed in service. A
grant-seeker submitting a placeholder application was required to
demonstrate via "[p]aid invoices and/or other financial
documents . . . that physical work of a significant nature ha[d]
begun on the property." Placeholder applications were required to
be submitted by October 1, 2012, and only after construction began.
NREL assigned a unique number to each application
submitted on its online platform.
B. The Indictment
On August 9, 2017, Condron and Jessica Metivier -- his
then-girlfriend and the mother of his children -- were indicted on
one count of conspiracy to defraud the United States with respect
to claims in violation of 18 U.S.C § 286 (Count One) and three
- 5 - counts of wire fraud in violation of 18 U.S.C. § 1343 (Counts Two
- Four).
With respect to the conspiracy charge, the indictment
alleged that Condron and Metivier conspired to defraud the United
States "by obtaining and aiding to obtain the payment and allowance
of false, fictitious, and fraudulent claims for monetary grants
under Section 1603." It further alleged that Condron and Metivier
hired a Massachusetts-based attorney to submit applications "to
Treasury seeking more than $50 million in Section 1603 grants on
behalf of [four] companies that the [a]ttorney created for
M[etivier]:" Acton Bio Energy, LLC ("ABE"); Concord Nurseries,
LLC; Kansas Green Energy, LLC ("KGE"); and Ocean Wave Energy, LLC
("OWE").
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United States Court of Appeals For the First Circuit
No. 23-1032
UNITED STATES,
Appellee,
v.
CHRISTOPHER N. CONDRON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Indira Talwani, U.S. District Judge]
Before
Montecalvo, Thompson, and Rikelman, Circuit Judges.
Eamonn R. C. Hart, with whom Brann & Isaacson was on brief, for appellant.
Alexia R. De Vincentis, Assistant United States Attorney, with whom Joshua S. Levy, Acting United States Attorney, was on brief, for appellee.
March 28, 2024 RIKELMAN, Circuit Judge. After a fourteen-day trial, a
jury convicted Christopher Condron of wire fraud and conspiracy to
defraud the United States by obtaining payment for false claims.
On appeal, Condron argues that the district court erred in denying
his motion for a judgment of acquittal because: (1) there was
insufficient evidence as to each count to support his conviction;
and (2) the government's argument and evidence at trial
constructively amended, or at least prejudicially varied from, one
of the wire fraud counts. Additionally, he contends that the
district court abused its discretion when it limited his cross-
examination of a key government witness. After careful
consideration of the trial record, we affirm the verdict and
Condron's conviction.
I. BACKGROUND
This case centers on Condron's role in submitting
applications to the United States Department of the Treasury
("Treasury") for grant money in connection with purported
renewable energy projects. The facts here are complicated, and to
put them in context, we begin with an overview of the federal grant
program at issue.
A. The Section 1603 Grant Program
In 2009, Congress enacted section 1603 of the American
Recovery and Reinvestment Act ("Section 1603") to encourage
investments in clean, renewable energy projects. See generally
- 2 - Pub. L. No. 111-5, § 1603, 123 Stat. 115, 364 (2009). Section
1603 provides for cash grants, in lieu of otherwise available tax
credits, to entities that "place[d] in service specified energy
property" within a certain timeframe, id. § 1603(a), including
small wind energy, trash, and open-loop biomass facilities.1
Treasury contracted with the National Renewable Energy
Laboratory ("NREL"), "a government-funded research and development
organization that specializes in renewable energy," to review
Section 1603 grant applications.2 In turn, NREL created and
managed an online portal through which grant-seekers could submit
an application, upload any supporting documents, and respond to
any subsequent requests from NREL seeking additional information.
Under the Section 1603 program, there were two types of
applications: (1) a "placed in service" application; and (2) a
"placeholder" application, also known as a "start of construction"
application. A grant-seeker could submit a placed-in-service
application if the property had been "placed in service" at the
time of the application, meaning it was "ready and available for
1 Open-loop biomass facilities use "cellulosic waste" material
(i.e., plant-derived material like tree bark or sawdust) and/or livestock waste material (e.g., manure) to generate electricity.
2 During all relevant times here, Treasury did not conduct its "own independent review of [an] application aside from NREL's" review.
- 3 - its specific use."3 A placeholder application, by contrast, was
available for a grant-seeker that had begun construction on a
renewable energy project in 2009, 2010, or 2011 that would not "be
placed in service until beyond 2011."
When submitting a placed-in-service application, a
grant-seeker would submit a commissioning report, which was "[a]
report provided by the project engineer, . . . equipment vendor,
or an independent third party that certifie[d] that the equipment
ha[d] been installed, tested, and [was] ready and capable of being
used for its intended purpose." Treasury also required
"documentation to support the cost basis claimed for the property,"
including "a detailed breakdown of all costs included in the
basis." The cost basis was generally the amount that the grant-
seeker spent on the property, including "installation costs and
the cost for freight incurred in construction of
the . . . property." If the grant-seeker claimed a cost basis
that was more than $500,000, Treasury required that it submit "an
independent accountant's certification attesting to the accuracy
of all costs claimed as part of the basis of the property."
After reviewing a placed-in-service application, NREL
would provide Treasury with a report recommending that the
3A grant-seeker could submit a "placed in service" application if its property was placed in service in 2009, 2010, or 2011.
- 4 - application be approved (for a certain amount) or denied. For
those applications that it recommended approval, NREL would assign
a grant award that was up to 30 percent of the cost basis of the
property. For example, if the cost basis was $100,000, NREL would
assign a grant award of up to $30,000. Once NREL recommended that
a particular application be approved, Treasury would then initiate
payment to the grant-seeker via a wire transfer.
Importantly, placeholder applications, or start-of-
construction applications, did not provide an option to request a
grant payment. The purpose of a placeholder application was to
allow a grant-seeker whose property was not yet complete to later
request grant funds once the property was placed in service. A
grant-seeker submitting a placeholder application was required to
demonstrate via "[p]aid invoices and/or other financial
documents . . . that physical work of a significant nature ha[d]
begun on the property." Placeholder applications were required to
be submitted by October 1, 2012, and only after construction began.
NREL assigned a unique number to each application
submitted on its online platform.
B. The Indictment
On August 9, 2017, Condron and Jessica Metivier -- his
then-girlfriend and the mother of his children -- were indicted on
one count of conspiracy to defraud the United States with respect
to claims in violation of 18 U.S.C § 286 (Count One) and three
- 5 - counts of wire fraud in violation of 18 U.S.C. § 1343 (Counts Two
- Four).
With respect to the conspiracy charge, the indictment
alleged that Condron and Metivier conspired to defraud the United
States "by obtaining and aiding to obtain the payment and allowance
of false, fictitious, and fraudulent claims for monetary grants
under Section 1603." It further alleged that Condron and Metivier
hired a Massachusetts-based attorney to submit applications "to
Treasury seeking more than $50 million in Section 1603 grants on
behalf of [four] companies that the [a]ttorney created for
M[etivier]:" Acton Bio Energy, LLC ("ABE"); Concord Nurseries,
LLC; Kansas Green Energy, LLC ("KGE"); and Ocean Wave Energy, LLC
("OWE").
To support the wire fraud charges, the indictment
alleged that Condron and Metivier submitted or caused to be
submitted online to Treasury certain fraudulent information. The
alleged wires underlying each count were as follows:
Count Approximate Wire Date/Time 2. September 28, 2012 Section 1603 grant application number 2012E48WE214854 submitted online to Treasury on behalf of OWE for $25,204,770, regarding "small wind energy property." 3. January 11, 2013 Response, submitted online to Treasury, to a January 7, 2013 request for information from NREL about background and qualifications of Person A.
- 6 - 4. April 17, 2013 Response, submitted online to Treasury, to a March 27, 2013 request for information from NREL about Person A's role in the OWE wind farm project.
Condron proceeded to trial in September 2021.4
C. The Evidence5
The trial evidence focused on Condron's role in
submitting Section 1603 applications and related information to
NREL between 2009 and 2013 for ABE, Concord Nurseries, KGE, and
OWE. As we detail below, Condron directed an attorney to create
these entities and then submit applications and other documents on
behalf of the entities to the Section 1603 program, even though
Condron was not listed as the applicant or as a manager or
principal on the entities' formation documents.
1. Acton Bio Energy, LLC
In 2009, Condron approached Richard Colman, a
Massachusetts attorney and financial planner, about applying to
the Section 1603 program. Colman, who had no prior experience
with Section 1603, ultimately agreed to help Condron apply for a
Metivier did not proceed to trial with Condron, as she 4
pleaded guilty to a superseding information that the government filed against her in September 2020. On the government's motion, the district court dismissed all counts of the indictment against her.
We recount the relevant evidence "in the light most 5
favorable to the jury's verdict, consistent with record support." United States v. Katana, 93 F.4th 521, 525 (1st Cir. 2024) (citation omitted).
- 7 - grant in connection with an open-loop biomass gasification
facility.6 Colman understood his role to be limited to "fill[ing]
out the forms" and submitting them online to Treasury on behalf of
the project. He worked on the application (and additional ones
that followed) on a contingency fee basis, such that he would be
paid if and when Treasury approved the grant.
The first application Condron and Colman worked on
together was for a "turnkey operation," which Condron explained to
Colman was a project that was fully ready to operate upon sale to
the buyer. Condron informed Colman that he wanted to arrange a
transaction in which his company, "C2C," would sell and finance a
biomass gasifier to an entity created under Metivier's name. Per
Condron's instructions, Colman filed a certificate of organization
to create ABE and listed Metivier as its manager.
Colman expressed concerns about Metivier "tak[ing] on so
much debt" in the transaction, given her limited resources at the
time and her lack of knowledge about gasification or biomass
technology. He spoke with her about his reservations, but she
decided to move forward with the sale. Under the terms of the
transaction, "C2C Inc." sold the gasification system to ABE for
$2,935,000 and lent approximately $2.7 million to ABE to finance
6 A biomass "gasification system" converts biomass into a synthetical natural gas, cools the gas and cleans it of contaminants, and then uses the resultant gas as fuel to generate electricity or heat.
- 8 - the transaction. Metivier signed a bill of sale (along with
Condron) and a promissory note in connection with the transaction.7
On December 17, 2009, Colman submitted a Section 1603
application for ABE at Condron's direction. He also submitted
several supporting documents, a few of which we describe below.
One document was an independent auditor's report. To
certify the project costs listed in the application, Metivier hired
Diane Lambert, a CPA with Walsh & Associates, to prepare an
independent accountant's report. She supplied Lambert with the
relevant information for the report, including a breakdown of the
cost amounts, the bill of sale, the promissory note, and invoices.
Because Lambert was not conducting a "full-blown audit," she did
not independently verify the costs of the property and relied on
Metivier to provide accurate cost information. Based on the
information Metivier provided, Walsh & Associates concluded in its
final report that "[t]he eligible cost basis for the . . .
[g]asifi[cation] . . . [s]ystem of Acton Bio Energy LLC in the
amount of $2,935,000 ha[d] been determined in accordance with the
general rules for determining the basis of property for federal
income tax purposes and [was] accurate."
7 Colman testified that he prepared the bill of sale and promissory note based on terms and numbers that Condron provided. According to the promissory note, ABE would pay approximately $16,000 a month to C2C to repay the loan.
- 9 - Colman also submitted a power purchase agreement between
ABE and Acton Sand & Gravel, a "gravel pit operation . . . that
crushe[d] stone and other materials for use in construction."
Metivier signed on behalf of ABE as its managing member. Under
the terms of the agreement, ABE would install a biomass
gasification system at Acton Sand & Gravel and then sell and
deliver electricity produced by the system to Acton Sand & Gravel.
Other documentation submitted in support of the ABE
application included: a certification (signed by Condron and
Metivier in July 2009) that the gasification system had been
"successfully tested" and was "ready for and . . . capable of
operation"; a certification from "C2C Solutions,"8 signed by
Condron, that the biomass gasification system had been installed
and re-tested at the operating site (Acton Sand & Gravel) in
September 2009; and a limited power of attorney signed by Metivier,
authorizing Colman to prepare and submit all documents necessary
to prepare and file the Section 1603 application on ABE's behalf.
In the spring of 2010, Treasury granted the ABE
application and awarded approximately $700,000. Colman sent
Metivier an invoice for his work on the application and received
$24,000 as his contingency fee.
8An IRS agent testified at trial that he was never able to locate a company by the name of "C2C Solutions."
- 10 - 2. Concord Nurseries, LLC
In 2010, Condron and Colman began working on a placed-in-
service application for another open-loop biomass facility. This
application was on behalf of Concord Nurseries, which Colman formed
(per Condron's instructions) by filing a certificate of
organization that named Metivier as its only principal. The idea
behind the Concord Nurseries project was to connect a biomass
gasifier to several generators that would power greenhouses at the
company's place of business. As before, Condron provided Colman
with the information necessary to prepare the application and
supporting documents, including a breakdown of the project costs.
And Metivier again signed a limited power of attorney authorizing
Colman to prepare and submit the Section 1603 application on behalf
of Concord Nurseries.
In connection with this project, Condron arranged for
his mother, Shirley Brewer, to purportedly sell the gasification
equipment (another "turnkey operation") to Concord Nurseries for
$26,773,178.55. Under the terms of the transaction, Metivier
ultimately put down only a $26,773.18 deposit and Brewer, doing
business as The Emerald Group (an entity that Colman created at
Condron's behest, listing Brewer as its principal), financed the
remainder. Metivier signed a promissory note obligating her to
make installment payments over a term of 20 years to repay the
loan.
- 11 - Condron told Colman that Brewer "had a background in
solar energy," and Colman's understanding from Condron was that
she "knew about alternat[ive] energy projects." In reality,
however, Brewer never studied "anything related to energy,
including biomass or solar," and had no formal education in energy
or engineering. Instead, she had degrees in human services
management, business administration, and nursing, and she had
worked as a nurse manager for twenty years until 2011. Further,
Brewer's experience with energy equipment prior to her involvement
in The Emerald Group was limited to buying and installing a wood-
burning furnace with her then-husband for their home in the late
1970s and familiarizing herself with a thermal solar system that
he built around the same time; she had no experience testing a
biomass system to determine its operability (aside from "read[ing]
certain articles about it").
As with the ABE project, Metivier worked with Lambert to
prepare an independent auditor's report for the Concord Nurseries
application. Metivier supplied Lambert with a bill of sale that
she signed on behalf of Concord Nurseries (and which Brewer signed
"d/b/a the Emerald Group"),9 the promissory note she signed, and
invoices. Lambert compiled the schedule of costs listed in the
independent auditor's report based on these documents.
9 Colman prepared the bill of sale based on information that Condron provided.
- 12 - Colman filed the application for Concord Nurseries on
April 29, 2011. According to the application, the gasification
system had been placed in service on November 15, 2010, and the
cost basis of the property was $26,787,532. As supporting
documentation, Colman included Lambert's independent auditor's
report; a bill of sale for the transaction between Metivier and
Brewer; and a commissioning report, signed by Brewer and dated
November 15, 2010, certifying that "[t]he biomass energy producing
system purchased by Concord Nurseries ha[d] been installed at [its
operating site] . . . and tested on November 15, 2010 [and] as a
result the equipment [was] ready and capable of operation." The
application for Concord Nurseries requested, and Treasury
ultimately awarded, a grant of $8,036,260. Colman sent Metivier
an invoice for his work and received approximately $360,000 as his
contingency fee.
3. Kansas Green Energy, LLC
Later in 2011, Condron and Colman began work on an
application for KGE, which Colman formed by filing a certificate
of organization that listed Metivier as its principal. In the
underlying transaction that Condron arranged, Industrial Supplies,
LLC -- another entity that Colman formed, listing Brewer as its
principal -- purportedly sold a turnkey operation to KGE for
- 13 - approximately $58 million.10 The operation supposedly involved a
trash facility that would use "municipal solid waste to produce
electricity" that would light, and provide heat for, greenhouses.11
Metivier signed a promissory note in connection with the
transaction. She also signed a limited power of attorney
authorizing Colman to prepare and submit the Section 1603
application on behalf of KGE.
On July 10, 2012, based on information provided by
Condron, Colman filed KGE's placed-in-service application. The
supporting documents that Colman submitted included: an
independent auditor's report that Lambert prepared largely based
on information from Metivier; and a commissioning report from
Industrial Supplies, signed by Brewer, stating that "final testing
and commissioning" indicated that the system was "ready and capable
of being used for its intended purpose." The placed-in-service
date of the trash facility was allegedly December 30, 2011. The
application listed the qualified cost basis as $58,805,237 and
requested a grant between $17 and $18 million.
10Industrial Supplies also financed the transaction, but it is unclear for what amount.
11 The distinction between trash facilities and open-loop biomass facilities is the source of fuel: trash facilities use municipal solid waste, whereas open-loop biomass facilities use cellulosic and/or livestock waste material.
- 14 - In early September 2012, NREL requested additional
information and documentation for the KGE project. Because NREL
did not receive timely answers to its requests, it denied the
application. On September 25, 2012, Colman filed a second
application for KGE with supporting documents. This second
application listed the qualified cost basis as $58,701,305 and
requested a grant of $17,610,392.
Donald Edward Settle, "a senior adviser in project
development finance" who led NREL's due diligence team for the
Section 1603 program, eventually took the lead in reviewing the
KGE applications. On January 7, 2013, Settle asked Colman for
"current contact information" for several individuals, including
Brewer, and for a description of "the relationship, past and
present, between [such] individuals and with the owners of KGE and
Concord Nurseries." On January 11, 2013, Colman submitted through
the NREL online portal a response to this request. Based on
information from Condron, Colman described Brewer as: "Owner of
Industrial Supplies, LLC and is the contractor who sold turnkey
operation to KGE. She also sold [t]urnkey operation to Concord
Nurseries. Ms. Brewer has been [i]nvolved with alternative energy
since the late 70's[,] specializing in thermal solar and
biomass."12
12 This response was the basis for Count Three.
- 15 - Settle ultimately recommended that Treasury reject the
KGE application because he could not determine that it was placed
in service and there was insufficient documentation to support the
claimed cost basis of the project.
4. Ocean Wave Energy, LLC
While Condron and Colman worked on the KGE project, they
also worked on a project that involved "putting wind turbines on
barges" to generate energy. Unlike the prior projects, this one
was not yet completed (but "was started within the time that it
could get funded").
In November 2011, Condron met with Carlos Peña, who
specializes in waterfront engineering and who worked for CLE
Engineering ("CLE"). Condron explained that he wanted "to use
[offshore] barges with mounted turbines . . . moored to the ocean
bottom" to generate energy. The following month, Condron told
Peña "that there were two barges in Hyannis," Massachusetts and
asked CLE to prepare written reports confirming whether the two
barges were actually there. Also around this time, Condron or
Brewer purchased about 32,000 Wi-Fi dongles ("essentially, thumb
drives") for the project and stored them at three of CLE's offices.
Peña ultimately sent Condron three reports on behalf of CLE and
two other engineering firms that accompanied CLE to inspect the
barges.
- 16 - At some point, Industrial Supplies purportedly bought
two wind turbines and a barge and also leased a barge. Condron
arranged for a transaction in which Industrial Supplies then sold
"each of the barges [and turbines] to Ocean Wave[]" Energy.
In late January 2012, Colman filed a certificate of
organization to form OWE in connection with the wind farm project.
As principals of OWE, the certificate listed Metivier and two of
her and Condron's children.13
Over the course of several days in late September and
early October of 2012, Colman submitted more than 550 grant
applications, each seeking approximately the same amount, on
behalf of OWE.14 Colman submitted the first application on
September 28, 478 applications on September 30, and 73 applications
on October 1. All the applications, except the first one, were
placeholder applications.
The first application, submitted on September 28, was a
placed-in-service application numbered 2012E48WE182428 (the "2428
application"). The description of the underlying property in the
application was "a small wind turbine system that charges batteries
13Colman testified that the names of the two children were eventually removed, leaving Metivier as OWE's sole principal.
14It is unclear what exactly prompted this large number of submissions. Colman testified at one point that "[s]ometimes the Internet connection would fail or something would go wrong," prompting him to "redo [an application] a few times."
- 17 - on a barge for engine operation, heat and lighting." According to
the 2428 application, the property had been placed in service on
December 31, 2011. The application listed a cost basis of $31,476
and requested a $9,443 grant. Supporting documents for this
application included a commissioning report from Brewer, on behalf
of Industrial Supplies, stating that Industrial Supplies was the
vendor of the project equipment, that it had "installed two small
wind turbines" in Hyannis, and that "said equipment was tested
and . . . ready and capable of being used for its intended
purpose . . . since December 31, 2011."15
As an example of the other OWE applications, the
government focused at trial on one submitted on September 30, 2012
and numbered "2012E48WE214854" (the "4854 application"). Unlike
the 2428 application, the 4854 application was a placeholder
application and listed Metivier rather than Colman as the
applicant. The 4854 application indicated that the underlying
project was for a "small wind energy-producing property" that would
be placed in service on or by December 31, 2016. The application
also indicated that OWE had begun "significant work of a physical
nature on the property" (as required for placeholder applications)
because it had "started construction on December 29, 2011 on a
15The indictment alleged that this commissioning report was submitted in support of a placeholder application for OWE that requested a grant of $25,204,770 and claimed a cost basis of $84,015,900. This allegation therefore proved to be incorrect.
- 18 - multiple energy-generating turbine project" and "[its] effort[s]
resulted in the purchase and inventory of 32,500 WiFi communication
defices [sic]" that "provide a communication path to each turbine
necessary for installation and setup, process monitoring, and
preventative maintenance." The anticipated cost basis listed was
about $84 million, and the estimated request for payment was
slightly more than $25 million.
Back at NREL, Settle became aware of the more than 500
applications submitted for OWE, all of which listed Brewer of
Industrial Supplies as the vendor. On March 27, 2013, he asked
for additional information with respect to the 2428 application,
the only placed-in-service application submitted for OWE.16 He
focused a few of his requests, such as the following, on Brewer:
"Ms. Shirley Brewer is apparently a key individual in Industrial
Supplies, LLC and Ocean Wave Energy, LLC as her information is
provided on invoices as OWNER. Please provide a complete
description of Ms. Brewer's role in each company . . . ." Condron
prepared for Colman the following response to Settle's question
about Brewer's role: "Ms. Brewer . . . is the owner of Industrial
Supplies, [LLC]. Industrial Supplies[,] LLC purchased the barge
and sold the barge to OWE LLC. Ms. Brewer has no relation to OWE
16 Settle later testified at trial that Brewer's role in Industrial Supplies and OWE was important for all the OWE applications because he was reviewing them all together.
- 19 - LLC at all except as a vendor."17 Colman submitted this response
on April 17, 2013.
Meanwhile, on March 29, 2013, Condron emailed Peña
asking for a "ballpark price range for the steps of construction,"
explaining that he would himself "come up with the costing on the
barge, turbines, etc." Peña responded that same day, attaching "a
preliminary construction estimate," which he noted was "[b]ased on
the limited details [Peña had] of the project." The attached
spreadsheet listed an estimated total project cost of about $1.6
billion based on the assumption that the project would have 500
turbines and 500 barges.18 Condron did not speak with Peña about
how he intended to use the estimate or about revising the estimate.
However, the construction estimate that was submitted to NREL the
following day, in connection with the 4854 application and under
Metivier's name, projected a total cost of about $32 billion.
According to this new estimate, the project would involve 1,500
barges with 1,786 turbines on each barge, for a total of 2,679,600
turbines.19
17 This response formed the basis for Count Four.
18 It is unclear at what point Condron and Peña discussed implementing a wind farm with 500 turbines and 500 barges, but Peña testified that these numbers were consistent with his conversations with Condron.
19 Relying on his training and experience as a marine engineer,
Peña testified at trial that it was not feasible for each barge to
- 20 - 5. The IRS Audit and Criminal Investigation
In 2012, the Internal Revenue Service ("IRS") initiated
a civil audit of ABE, Concord Nurseries, and KGE to verify that
the entities had "in fact[] purchased equipment, placed it in
service, and that [such equipment] was placed in service within
the required period of time, 2009 to 2011."20 To facilitate this
audit, IRS agents reviewed financial information, transaction
documents, and invoices related to the entities and arranged to
visit the three gasification systems in March 2013. At the ABE
site, Acton Sand & Gravel, agents did not see any type of
gasification equipment. Next, at the Concord Nurseries site,
agents saw "empty greenhouses, . . . a couple of trailers, and a
flatbed of some sort with wrapped items underneath it." There
were "no substantive business operations." Finally, at the KGE
site, agents "saw some greenhouses with some plantings in them,
but no functioning business operations." The following day, agents
made efforts to find an office or manufacturing center related to
Industrial Supplies, but all they found was a small, "largely
abandoned" "storefront office."
In June 2013, IRS agents arranged to meet with Metivier
at Acton Sand & Gravel to view "any and all gasification equipment
have 1,786 turbines and that the largest wind farm he was aware of at the time (worldwide) had several hundred turbines.
20 The IRS did not conduct a civil audit of OWE.
- 21 - relating to th[e] $89 million in gasification equipment placed in
service across" the ABE, Concord Nurseries, and KGE entities.
Condron was not present. Metivier accompanied the agents on a
tour of the Acton Sand & Gravel site and "open[ed] a number of
trailers," but the agents did not see any gasifiers. Nor did
Metivier point the agents to any.
The IRS subsequently initiated a criminal investigation.
Jonathan Wlodyka, a supervisory special agent for the criminal
investigations division of the IRS, served upon Brewer a grand
jury subpoena seeking documents relating to The Emerald Group and
Industrial Supplies. In April 2016, Wlodyka interviewed Brewer
and asked her about bills of sales, commissioning reports, and
promissory notes relating to The Emerald Group and Industrial
Supplies. Brewer stated that she did not sell a $26 million
gasifier and that she did not enter into any loan agreements.
Additionally, "[o]n at least one occasion [during the interview],
she looked at a promissory note, and said it was phony." Wlodyka
provided Christopher McCarten, another IRS agent, with the records
that Brewer turned over.
McCarten then reviewed "Secretary of State
records[,] . . . financial statements, bank account records,
canceled checks, bills of sale, [and] notes on indebtedness"
relating to ABE, Concord Nurseries, KGE, Condron, Metivier, and
- 22 - Brewer.21 He aimed to identify expenses "for the purchase of energy
equipment and trace the receipt of the treasury grant funds through
the bank accounts."
The IRS ultimately made several determinations,
including: for ABE, $16,093 was spent on project-related
equipment, less than one percent of the claimed $2,935,000 cost
basis; for Concord Nurseries, $177,000 was spent on project-
related equipment, less than one percent of the claimed $26,787,532
basis; and, for KGE, approximately $3 million was spent on project-
related equipment, less than five percent of the claimed
approximately $58 million basis. Additionally, although Metivier
had signed a promissory note agreeing to pay approximately $16,000
per month (on behalf of ABE) to "C2C" to pay off C2C's
approximately $2.7 million loan for a gasification system,
McCarten found no records indicating that she had made any such
payments. Nor did he find "anything" that indicated ABE, Concord
Nurseries, or KGE "had the wherewithal to make the payments on the
[promissory] notes" that Metivier signed on behalf of these
entities. In fact, a review of tax returns filed for ABE, Concord
21 McCarten did not review records for OWE.
- 23 - Nurseries, and KGE revealed that "[t]here was little to no income
reported on the returns for 2009, '10, and '11."22
The IRS also determined that from the approximately
$700,000 that Treasury awarded in connection with the ABE project,
$40,000 was deposited in Metivier's personal bank account and
"spent on personal living expenses to pay off credit cards,
restaurants, gas, [and] vehicle payments." Further, from the
approximately $8 million that Treasury awarded in connection with
the Concord Nurseries project, $950,000 was deposited in
Metivier's "personal business" bank account.
Condron and Metivier were ultimately arrested in August
2017.
D. The Government's Motion in Limine Regarding Cross-Examination of Richard Colman
On September 14, 2021, the fifth day of trial, the
government filed a motion in limine seeking to prevent Condron
from "cross-examining Colman about purported ethical breaches or
suggesting that Colman violated any" of the Massachusetts Rules of
Professional Conduct ("MRPC"). The government argued that the
MRPC did "not apply because Colman was not acting as an attorney
and was not providing legal services to" Condron. Even if the
MRPC did apply, the government added, any allegation by Condron
For example, ABE reported income during only one of those 22
years, for approximately $14,000, and Concord Nurseries filed returns in 2010 and 2011 reporting no income.
- 24 - "that Colman violated ethics rules [would] be more prejudicial
than probative," because there was no evidence that Colman engaged
in misconduct or that he charged an illegal or excessive fee.
The following morning, the district court permitted
Condron to respond to the government's motion. Condron disputed
the government's claim that Colman was not acting as a lawyer and
argued that cross-examining Colman about the MRPC, which reflect
the public's "expectations placed upon lawyers," would allow
Condron to demonstrate his own "state of mind" and that he had
relied on such expectations in "good faith." He also explained
that he intended to cross-examine Colman about his contingency
fees and about "Rule 1.4 concerning communication to the client
and candor."
The district court granted the government's motion. It
ruled that allowing Condron to "bring[] in the Rules of
Professional Conduct [would], essentially, creat[e] a mini trial
about whether someone violates the Rules of Professional Conduct,"
which "would be a question for the Bar, not for this case."
However, the court made clear that Condron could question Colman
about: whether he "was serving in his attorney capacity or in his
business-advising capacity"; whether he charged "an appropriate
fee for" the work he performed; and what he thought Condron
"understood about [their] relationship based on their interactions
and their communications."
- 25 - Condron preserved his objection to the court's ruling.
E. The Jury Verdict and Condron's Motions for Acquittal
At the conclusion of the government's case, Condron
filed a motion for a judgment of acquittal on Count Four, pursuant
to Federal Rule of Criminal Procedure 29(a).23 The district court
took the motion under advisement.
The jury ultimately found Condron guilty on all four
counts of the indictment. Two weeks later, on October 12, 2021,
Condron filed a motion for a judgment of acquittal or, in the
alternative, a new trial. He argued that there was insufficient
evidence to support his convictions and that the evidence at trial
"fatally varied" from the alleged facts in the indictment with
respect to Counts Two and Four. In May 2022, after subsequent
briefing by the parties, the court denied both of Condron's motions
for acquittal, including his request for a new trial.
This timely appeal followed.
II. DISCUSSION
Condron presents three main arguments on appeal: (1) the
government presented insufficient evidence at trial to sustain his
conviction as to any of the four counts; (2) the government's
argument and evidence at trial constructively amended, or at least
prejudicially varied from, Count Two of the indictment; and (3)
23Condron also orally moved for a judgment of acquittal on all counts.
- 26 - the district court's limitation on the cross-examination of Colman
undermined Condron's defense. We address each of these points in
turn.
A. Sufficiency of the Evidence
We review Condron's preserved sufficiency of the
evidence claim de novo. See United States v. Daniells, 79 F.4th
57, 71 (1st Cir. 2023). In evaluating this claim, we review "the
evidence in the light most favorable to the government, draw all
reasonable inferences [in the government's favor], and ask whether
a rational jury could find that the government proved all the
elements of the offense beyond a reasonable doubt." United States
v. Katana, 93 F.4th 521, 538 (1st Cir. 2024) (alteration in
original) (quoting United States v. Fuentes-Lopez, 994 F.3d 66, 71
(1st Cir. 2021)). To uphold Condron's conviction, we "need not
believe that no verdict other than a guilty verdict could sensibly
be reached, but must only satisfy [ourselves] that the guilty
verdict finds support in a plausible rendition of the record."
Fuentes-Lopez, 994 F.3d at 71 (quoting United States v. Sabean,
885 F.3d 27, 46 (1st Cir. 2018)).
1. The Conspiracy Count
Count One, which charged a violation of 18 U.S.C. § 286,
alleged that Condron and Metivier conspired to defraud the United
States by "obtain[ing] government funds through false and
fraudulent applications to the Section 1603 grant program" for
- 27 - ABE, Concord Nurseries, KGE, and OWE. Condron's challenge to the
sufficiency of the evidence with respect to Count One is narrow.
He argues that the government's evidence failed to prove that
Metivier had the requisite mens rea to defraud the United States
and, therefore, the conspiracy charge against him fails because he
could not conspire with himself. Relatedly, he maintains that the
district court "misstated the law as to the mens rea requirement
for co-conspirators" when it concluded that "[t]he government did
not need to prove Metivier's state of mind."24 The government
acknowledges that a conviction on Count One "required proof that
Metivier shared in [Condron's] criminal objective" but argues that
the evidence was sufficient to show that she did.
We conclude that there was sufficient evidence about
Metivier's state of mind to support the conspiracy charge.25 The
evidence established the following:
• Metivier was the listed principal or manager of each of the companies for which Colman submitted Section 1603 applications;
24In a footnote in his opening brief, Condron also briefly argues that, "[b]ecause of the complete lack of evidence establishing Metivier's role as a co-conspirator," the district court erred in admitting "certain out-of-court statements [by Metivier] on the co-conspirator hearsay exception under Fed. R. Evid. 801(d)(2)(e)." Condron's failure to develop this argument beyond one sentence waives it. See United States v. Boudreau, 58 F.4th 26, 32 (1st Cir.), cert. denied, 144 S. Ct. 229 (2023).
25Because Condron does not contest whether the government met its burden with respect to other elements of 18 U.S.C. § 286, we do not discuss those other elements here.
- 28 - • she signed bills of sale and promissory notes in connection with multi-million-dollar transactions for these companies, despite having limited resources and little (if any) knowledge about gasification or biomass technology at the time;
• she reached out to, and coordinated with, Lambert to obtain independent auditor reports for the ABE, Concord Nurseries, and KGE applications;
• she supplied Lambert with information and documents for the independent auditor reports, including invoices to support the claimed project costs;
• she was regularly copied on e-mail correspondence regarding the projects;
• she signed a certification indicating that the gasification system for ABE had been "successfully tested" and was "ready for and . . . capable of operation";
• despite being the manager of ABE and the sole principal of Concord Nurseries and KGE -- all of which purportedly involved gasification systems -- she could not point IRS agents to a single gasifier during their visits in 2013;
• at least some of the grant funds were deposited into her bank account and used for her personal expenses;
• her name and contact information were listed in the signature block of OWE's 4854 application, suggesting that she might have personally submitted that application; and
• NREL's submission records listed her as the user who submitted the approximately $32 billion cost estimate in March 2013 in connection with the OWE project.
Based on this substantial evidence, a jury could have
reasonably inferred that Metivier participated in the charged
scheme with an intent to defraud the United States. See United
States v. Alfonzo–Reyes, 592 F.3d 280, 291 (1st Cir. 2010) ("Direct
- 29 - evidence is not required to find [a defendant] guilty, and juries
are entitled to draw reasonable inferences at trial based on
circumstantial evidence."). Her romantic relationship with
Condron is yet another fact on which the jury could have relied to
find that she shared Condron's criminal intent. See United States
v. Pena, 910 F.3d 591, 597 (1st Cir. 2018) ("[T]he evidence plainly
sufficed to permit the jury to infer that Rocheford, given her
close ties to her mother and her broader involvement in the
fraudulent scheme, was a knowing and willful participant in the
scheme to defraud . . . ."); United States v. Ritz, 548 F.2d 510,
522 (5th Cir. 1977) ("The fact of the close association of the
several parties and their association with . . . the father who
was the source of four of the [counterfeit] bills is[] one
circumstance from which the jury might infer knowledge.").
For these reasons, we are satisfied that the jury's
verdict with respect to Count One "finds support in a plausible
rendition of the record." Fuentes-Lopez, 994 F.3d at 71 (quoting
Sabean, 885 F.3d at 46).
2. The Wire Fraud Counts
Counts Two through Four charged Condron with wire fraud.
There are three elements of wire fraud: "1) a scheme to defraud by
means of false pretenses, 2) the defendant's knowing and willful
participation in the scheme with the intent to defraud, and 3) the
use of interstate wire communications in furtherance of the
- 30 - scheme." United States v. Buoi, 84 F.4th 31, 38 (1st Cir. 2023)
(citation omitted); see 18 U.S.C. § 1343. "False or fraudulent
pretenses" include "any false statements or assertions" that the
defendant made with knowledge of their falsity (or reckless
indifference to their truth) and "with an intent to defraud."
United States v. Correia, 55 F.4th 12, 26 (1st Cir. 2022).
Critically, the wire fraud statute encompasses not only
"actual, direct false statements" but also "half-truths and the
knowing concealment of facts." Id. (quoting United States v.
Blastos, 258 F.3d 25, 28 (1st Cir. 2001)). And although a false
representation must be material, to establish materiality here,
the government did not need to prove that NREL or Treasury
"actually relied on the falsehood." Id. at 27 (quoting United
States v. Stepanets, 989 F.3d 88, 104 (1st Cir. 2021)). Rather,
the government needed to demonstrate that Condron's
representations "had a natural tendency to influence, or [were]
capable of influencing [their] target's decision." United States
v. Cadden, 965 F.3d 1, 12 (1st Cir. 2020) (citation and internal
quotation marks omitted); see Neder v. United States, 527 U.S. 1,
16 (1999) ("[A] false statement is material if it has 'a natural
tendency to influence, or [is] capable of influencing, the decision
of the decisionmaking body to which it was addressed.'" (second
alteration in original) (citation omitted)).
- 31 - We now turn to consider the sufficiency of the evidence
with respect to each of the wire fraud counts.
a. Count Two: The September OWE Placeholder Application
Count Two charged Condron with wire fraud in connection
with an application that was numbered "2012E48WE214854" and
requested a grant of $25,204,770 in relation to a "small wind
energy property." The indictment suggested that the approximate
date of the 4854 application's submission was September 28, 2012.
At trial, the evidence established that the 4854 application was
actually submitted two days later, on September 30, 2012.
Condron argues that the government failed to introduce
"any evidence that the 4854 application itself was fraudulent,"
because the application did not seek any funds and was simply a
"placeholder" application that "described estimated claims[] that
might be made in the future." He also argues that the government
did not introduce any evidence that he "had the requisite mental
state for fraud when [he] submitted the 4854 application." In his
view, the only evidence as to his state of mind at the time of the
application's submission was a construction cost estimate that was
submitted to NREL six months later in March 2013 (the "March cost
estimate").26 "Concluding from that filing that [he] had a
Recall that the March cost estimate projected a total cost 26
of about $32 billion, which was more than $30 billion higher than the estimate Peña had prepared for Condron just one day prior.
- 32 - particular mental state six months earlier," Condron argues, "is
pure speculation and conjecture." Moreover, Condron stresses, the
March cost estimate was not, as the district court concluded,
"grossly inflated." For the reasons we explain below, we find no
merit in these arguments.
First, the government was not required to prove that the
4854 application itself was fraudulent as long as it was submitted
in furtherance of a scheme that relied on false pretenses. See
United States v. Martin, 228 F.3d 1, 16 (1st Cir. 2000) (rejecting
argument that defendant's emails, which did not contain any
misrepresentations, could not provide the basis for a scheme to
defraud because "the e-mails themselves need not be fraudulent" as
long as "the scheme itself . . . rel[ies] on false pretenses");
see also Buoi, 84 F.4th at 38 (listing wire fraud elements). Thus,
the fact that the 4854 application did not request grant funds is
of little consequence. As Condron acknowledges, placeholder
applications permitted grant-seekers with properties not placed in
service by the end of 2011 to submit a later request for grant
funds once their properties were placed in service. The deadline
for placeholder applications was October 1, 2012, and the 4854
application was submitted on September 30, 2012. A jury could
have reasonably concluded that Condron intended to meet the October
1 deadline so that he could later submit a request for grant funds
in connection with the OWE project. Thus, a jury also could have
- 33 - reasonably concluded that the submission of the 4854 application
was in furtherance of Condron's fraudulent scheme. See United
States v. Potter, 463 F.3d 9, 17 (1st Cir. 2006) ("[T]he [wire
fraud] statute does not require that the scheme be 'executed' or
that the [wire] be directed to the last step of the scheme.").
Second, a jury could have reasonably concluded that the
4854 application itself contained misrepresentations. The
application indicated that OWE had begun "significant work of a
physical nature on the property." But the only claimed
"construction" OWE had completed at that time was "the purchase
and inventory of 32,500 WiFi" thumb drives. A reasonable jury
could have found that the purchase of such devices did not
constitute "significant work of a physical nature," particularly
for a project claiming an anticipated cost basis of about $84
million.27 Such a finding would not have been "unreasonable,
insupportable, or overly speculative" in light of the evidence.
Daniells, 79 F.4th at 71 (citation omitted).
Third, we are not persuaded by Condron's argument that
the March cost estimate was not fraudulent. He acknowledges that
this estimate "contained a significantly higher total cost than
At oral argument, Condron stressed that the government did 27
not argue at trial that the 4854 application was fraudulent for relying on the purchase of 32,500 Wi-Fi devices to claim that OWE had begun construction. But regardless of what the government argued to the jury, the jury was entitled to draw its own inferences and conclusions from the evidence before it.
- 34 - the one Peña provided to Condron" but notes that "this change was
driven not by increasing the unit costs . . ., but by changing the
number of units." But the March cost estimate was a staggering
$30 billion higher than the cost estimate Peña had prepared, and
Peña testified that it was not feasible for each barge to have the
number of turbines that the March cost estimate suggested.
Moreover, the approximately $32 billion estimate varied
significantly from the approximately $84 million cost basis
specified in the 4854 application. And there was no evidence
suggesting that any significant work followed the 4854
application's submission such that it could have accounted for
this major discrepancy.
Finally, the jury was entitled to consider the March
cost estimate when determining whether Condron had an intent to
defraud at the time the 4854 application was submitted. We long
ago established "that subsequent events may shed light upon, and
be relevant in determining, what transpired at an earlier time."
United States v. Sutton, 970 F.2d 1001, 1007 (1st Cir. 1992).
Accordingly, the jury could have appropriately inferred from the
March cost estimate that Condron's fraudulent intent had developed
by the time the application was submitted.
We therefore reject Condron's sufficiency challenge with
respect to Count Two.
- 35 - b. Counts Three & Four: The January 11 & April 17, 2013 Responses to NREL
The alleged misrepresentations underlying Counts Three
and Four were statements that Condron prepared (and Colman
submitted) in response to requests from NREL seeking additional
information about Brewer. They are, in relevant part, as follows:
Request From NREL Response to NREL Date of Response Describe the relationship, Owner of Industrial January 11, past and present, between Supplies, LLC and is 2013 [Shirley Brewer] and with the contractor who the owners of KGE and sold turnkey operation Concord Nurseries. to KGE. She also sold [t]urnkey operation to Concord Nurseries. Ms. Brewer has been [i]nvolved with alternative energy since the late 70's[,] specializing in thermal solar and biomass. Ms. Shirley Brewer is Ms. Brewer . . . is April 17, apparently a key individual the owner of 2013 in Industrial Supplies, LLC Industrial Supplies, and Ocean Wave Energy, LLC [LLC]. Industrial as her information is Supplies[,] LLC provided on invoices as purchased the barge OWNER. Please provide a and sold the barge to complete description of Ms. OWE LLC. Ms. Brewer Brewer's role in each has no relation to OWE company . . . . LLC at all except as a vendor.
Condron argues that these responses to NREL cannot
support a conviction for wire fraud because they "were literally
true, comported with legal definitions of relevant terms, and were
submitted by an attorney [i.e., Colman] with full knowledge of the
- 36 - personal relationships of the parties." He also contends that his
conviction on Count Four "fails for an independent reason," namely:
"[t]he only 'scheme to defraud' relating to OWE was charged in
relation to the [4854] application," but the response underlying
Count Four was submitted in response to the 2428 application. We
disagree and reject his sufficiency challenge to Counts Three and
Four because we find that the statements underlying those counts
were misleading, material, and in furtherance of the charged scheme
to defraud.28
To begin, Condron's statements fall squarely within the
ambit of the wire fraud statute. With respect to Count Three, a
reasonable jury could have concluded that Condron not only
misrepresented Brewer's experience in alternative energy but also
knowingly omitted reference to her personal ties to Metivier. The
evidence established that Brewer had no formal education or
training related to energy or engineering and that she had worked
as a nurse for 20 years until 2011. Her "involvement" with energy
equipment was limited to buying and installing a wood-burning stove
decades ago with her then-husband and familiarizing herself with
a thermal solar system that he built at their home. And, as was
repeated many times during the trial, her son (Condron) was in a
28 Condron offers no argument as to how the submission of misleading statements by an attorney is relevant to (let alone supports) his sufficiency argument. We therefore do not address that point.
- 37 - romantic relationship with Metivier, and she was the grandmother
to their children. As for Count Four, a jury could have reasonably
concluded that Condron's statement went beyond a "half-truth" or
omission and rose to the level of an "actual, direct false
statement[]." Correia, 55 F.4th at 26 (citation omitted). The
evidence was straightforward: Despite the fact that Brewer was the
grandmother to Metivier's children, and Metivier was the principal
of OWE, Condron represented that "Brewer ha[d] no relation to OWE
LLC at all except as a vendor."
Condron's assertion that the responses were literally
truthful because Brewer had only a personal relationship to OWE
and "there was no legal relationship, as defined in the relevant
statutes, . . . to disclose" is not compelling.29 (Citation
omitted.) For the purposes of the wire fraud statute, that Section
1603 or Treasury's program guidance may not explicitly have
required disclosure of the personal relationship between Brewer
and Metivier does not immunize Condron's January 11
representation. See United States v. Lloyd, 807 F.3d 1128, 1153
To support this argument, Condron points to the language 29
of Section 1603, which provides: "Terms used in this section which are also used in section 45 or 48 of the Internal Revenue Code of 1986 shall have the same meaning for purposes of this section as when used in such section 45 or 48." Pub. L. No. 111-5, § 1603(h), 123 Stat. 115, 366 (2009). Condron's reasoning is that sections 45 and 48 of the Internal Revenue Code would not classify Brewer (or her entities) as "related" to Metivier (or her entities) and, therefore, neither would Section 1603.
- 38 - (9th Cir. 2015) (concluding that fraud charges based on affirmative
misrepresentations, including affirmative "misleading half-
truth[s]," do not require proof of a duty to disclose (citation
omitted)); United States v. Keplinger, 776 F.2d 678, 697 (7th Cir.
1985) ("It requires no extended discussion of authority to
demonstrate that omissions or concealment of material information
can constitute fraud . . . under the mail fraud statute, without
proof of a duty to disclose the information pursuant to a specific
statute or regulation.").
Next, a reasonable jury could have further determined
that Condron's representations in Counts Three and Four were
material, as they "had a natural tendency to influence" NREL's
decision to ultimately grant or reject one or more of the Section
1603 applications. Correia, 55 F.4th at 28. The fact that NREL
"explicitly sought" information about Brewer "indicates that
[Condron]'s response[] [was] capable of influencing its decision."
United States v. Appolon, 715 F.3d 362, 368 (1st Cir. 2013).
Indeed, Settle testified that information about Brewer's
"relationship" with the owner of KGE and Concord Nurseries (i.e.,
Metivier) was important to NREL's determination of the OWE
applications' credibility and claimed cost bases. And McCarten,
an IRS agent, explained that understanding the relationship
between a creditor and debtor (such as Brewer and Metivier) was
- 39 - important to determining the actual value of a property and, in
turn, the eligible cost basis.
Finally, we reject Condron's argument that his
conviction on Count Four cannot stand because the evidence
established that the April 17 statements were submitted in
connection with the 2428 application, which the government
conceded was not fraudulent.30 In Condron's view, the fact that
he did not make such statements in response to the 4854 application
indicates that those statements were not submitted in furtherance
of the scheme charged in the indictment. To be sure, Condron is
correct that the evidence demonstrated his April 17 statements
were technically submitted in response to NREL's questions about
the 2428 application. But that is of little consequence here.
The government's burden was to show that the April 17 response was
submitted in furtherance of Condron's overall scheme to defraud,
not the 4854 application specifically. Each of the more than 500
OWE applications listed Brewer of Industrial Supplies as the
equipment vendor. And NREL reviewed each of those applications.
A jury could have reasonably inferred that Condron anticipated
that NREL's interest in Brewer's role would have extended to the
30 Before the government called its first witness at trial, it acknowledged that "[t]here were more than 500 applications submitted" for OWE and that "[t]he first one" (i.e., the 2428 application) was "not fraudulent because there was equipment bought" and the application claimed "only . . . $7,000."
- 40 - other OWE applications (and even the ABE, Concord Nurseries, and
KGE applications) and that he therefore prepared a response that
would conceal the true nature of Brewer's role to further his
scheme to defraud Treasury.
In sum, Condron's challenge with respect to Counts Three
and Four fails because there was sufficient evidence for the jury
to convict him on each count.
B. Constructive Amendment and Prejudicial Variance
Condron also challenges his conviction with respect to
Count Two on the basis that "the [g]overnment's argument amounted
to a constructive amendment of the indictment, or, at the very
least, a prejudicial variance that requires reversal." This
argument rests on the premise that "[t]he government essentially
invited the jury to view th[e] March 2013 upload" -- i.e., the
approximately $32 billion cost estimate submitted in support of
the 4854 OWE application -- "as the wire [for Count Two], instead
of the" 4854 application itself.31 Because he presented his
prejudicial variance argument before the district court and
therefore properly preserved it, we review that claim de novo.
See Katana, 93 F.4th at 530. We normally would review Condron's
31To the extent Condron also bases his claims about Count Two on a discrepancy in the date the 4854 OWE application was submitted, he conceded at oral argument that such a discrepancy "[is] not itself a problem" and that the core issue was the "completely uncharged" March cost estimate.
- 41 - constructive amendment argument claim, which he did not raise
below, for plain error, but we conclude that it would fail even
under de novo review.
We begin with a brief overview of the distinction between
a constructive amendment and a prejudicial variance. The
government constructively amends an indictment when its evidence
or argument at trial alters the terms of the "indictment such that
the defendant is effectively charged with a different offense than
the one returned by the grand jury." Id. The prohibition against
constructive amendments serves to safeguard a defendant's Fifth
Amendment right to be indicted only by a grand jury and Sixth
Amendment rights to be informed of those charges and not to be
re-prosecuted for the same offense. See United States v. Akoto,
61 F.4th 36, 43 (1st Cir. 2023); United States v. Taylor, 848 F.3d
476, 495 (1st Cir. 2017). A variance -- which "does not involve
a change in the offense charged" -- "occurs when the government
relies at trial on different facts than those alleged in the
indictment to prove the same offense." Katana, 93 F.4th at 530.
To distinguish between a claim of constructive amendment
and that of a prejudicial variance, we look to the statutory
elements of the offense charged. See id. at 531. The government's
introduction of evidence at trial that varies from the factual
allegations of the indictment, but does not alter a statutory
element of the offense charged, does not amount to a constructive
- 42 - amendment. See United States v. López–Díaz, 794 F.3d 106, 118
(1st Cir. 2015). Nor does it amount to a prejudicial variance,
unless it affects a defendant's "right to have knowledge of the
charge sufficient to prepare an effective defense and avoid
surprise at trial, and the right to prevent a second prosecution
for the same offense." United States v. Vega-Martínez, 949 F.3d
43, 51 (1st Cir. 2020) (cleaned up) (citation omitted). With this
framework in mind, we turn to Condron's constructive amendment and
prejudicial variance claims, neither of which have merit.
The government's reliance on the March 2013 cost
estimate in support of Count Two did not result in a constructive
amendment or a variance. First, because any emphasis on the March
2013 estimate did not alter any statutory element of the offense
charged in Count Two (i.e., wire fraud), it did not amount to a
constructive amendment. See López–Díaz, 794 F.3d at 118 (rejecting
constructive amendment claim because "[t]here was no change to the
statutory elements of the offense"); see also United States v.
Dupre, 462 F.3d 131, 140-41 (2d Cir. 2006) (finding no constructive
amendment, where the only wire alleged in indictment was not proven
at trial, because "the evidence at trial concerned the same
elaborate scheme to defraud . . . as was described in the
indictment"). Second, there was no variance because the
government's argument at trial was clear that the 4854 OWE
application was the basis for Count Two. In its closing argument,
- 43 - the government explained that the "first" charged wire was a
"placeholder application" submitted on September 30, 2012 for OWE.
The government also acknowledged that the indictment erroneously
specified September 28, 2012 (rather than September 30) as the
submission date of that application.32 As we noted earlier, the
government throughout trial focused on the 4854 application as an
example of the placeholder applications submitted for OWE. We
therefore find no support for Condron's assertion that the
government improperly conflated the March 2013 estimate with the
4854 OWE application.33
Finally, even if the evidence at trial varied from the
facts alleged in the indictment, Condron has failed to demonstrate
that such a variance was prejudicial. Condron's claim of prejudice
is that the government's "blurring [of] the 2428 placed-in-service
and 4854 start-of-construction application[s] . . . invited the
jury to . . . consider statements made only in connection with the
32The government also noted that the court would provide the jury with "an instruction about an on-or-about date" and that the jury would "have to decide whether or not this wire took [place] . . . on or about September 30, 2012."
33Moreover, contrary to Condron's assertions, the government did not rely on the March cost estimate as the only piece of evidence demonstrating his intent to defraud at the time of the 4854 application's submission. As we explained earlier, the 4854 application itself offered insight into Condron's fraudulent intent at the time it was submitted. Additionally, the government reminded the jury that it had provided only "snippets of different exhibits" during its closing argument and that "all the[] exhibits [would] be in the jury room for [the jury] to consider."
- 44 - 2428 application as related to the 4854 application." He suggests
that this "blurring" added to the "heightened risk that the jury
[would] confuse evidence as to each count." But Condron offers no
support for his assertion that the government "blurr[ed]" the two
applications. As we have just explained, the government was clear
that the 4854 OWE application was the basis for Count Two.
Moreover, during its closing argument, the government referenced
only a "placeholder application" submitted for OWE on September
30, 2012 (i.e., the 4854 application) and never mentioned any other
application submitted by OWE (such as the placed-in-service 2428
application).
More importantly, Condron has not established that he
was deprived of the "right to have knowledge of the charge [in
Count Two] sufficient to prepare an effective defense and avoid
surprise at trial" or "the right to prevent a second prosecution
for the same offense." Vega-Martínez, 949 F.3d at 51 (cleaned up)
(citation omitted). The fact that the government did not reference
the March cost estimate in the indictment but did introduce the
estimate at trial is insufficient to demonstrate that Condron
lacked notice of the charge against him. After all, "[t]he
government need not recite all of its evidence in the indictment."
United States v. Fornia-Castillo, 408 F.3d 52, 67 (1st Cir. 2005)
(citation omitted). And, notably, the government included "OWE
Barge Cost Estimates," dated March 29, 2013, in its exhibit lists,
- 45 - the first of which it filed in August 2020, more than a year before
trial began. Additionally, when Condron cross-examined Peña, he
largely focused on the March cost estimate. The record therefore
belies any claim of surprise. Finally, Condron fails to establish
how he might have prepared his defense differently had he been
aware that the government would, as he claims, "concede the
legitimate nature of [the] 2428 [application] and rest solely on
claims of implausibility in the [March] cost estimate."
Thus, Condron has failed to demonstrate prejudice and,
consequently, "grounds for reversal." Katana, 93 F.4th at 530
(citation omitted); see United States v. Chan, 981 F.3d 39, 52
(1st Cir. 2020) ("[A] variance is grounds for reversal only if it
is prejudicial." (citation omitted)).
C. The Government's Motion in Limine
Condron's final argument is that the district court
erred when it restricted him from cross-examining Colman about the
MRPC. In his view, Colman was "[t]he most critical witness" at
trial, and "[t]he critical issue at trial was whether Condron acted
in good faith." He argues that cross-examination of "Colman on
the [MRPC] . . . would have both shed light on the question of his
role[] and provided a basis for the jury to understand the
expectations placed on attorneys, which in turn would inform the"
jury's analysis as to whether Condron relied on Colman in good
faith. The district court's restriction on such cross-
- 46 - examination, Condron suggests, "undermin[ed] a key defense
strategy" and amounted to an abuse of discretion.
We conclude, however, that the district court was well
within its discretion when it imposed a narrow restriction on
Condron's cross-examination of Colman and that such a restriction
did not undermine his defense. Under Federal Rule of Evidence
403, district courts have broad discretion to "exclude relevant
evidence if its probative value is substantially outweighed by a
danger of . . . unfair prejudice, confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence." Fed. R. Evid. 403. We thus review the
district court's decision under Rule 403 to limit the scope of
Colman's cross-examination for abuse of discretion. See Vega-
Martínez, 949 F.3d at 52-53; see also United States v. Soler-
Montalvo, 44 F.4th 1, 16 (1st Cir. 2022) (highlighting "our
deference for the district court's battlefield judgment" under
Rule 403).34
Here, the district court properly balanced Condron's
interest in cross-examining Colman about the MRPC against its
concerns that such questioning would confuse the jury and/or elicit
34 In challenging the district court's limitation on his cross-examination of Colman, Condron relies on Rule 403. He makes only a cursory reference to the Sixth Amendment's Confrontation Cause in one sentence in his reply brief. Accordingly, we focus our analysis here on whether the district court complied with Rule 403 when it limited the cross-examination.
- 47 - testimony that was irrelevant to the issues at hand. As the
district court reasoned, allowing Condron to cross-examine Colman
about the MRPC would have "creat[ed] a mini trial about whether
[Colman] violate[d] the Rules," which "would be a question for the
Bar, not for this case." Because cross-examination of Colman with
respect to the MRPC was likely to "distract the jury in an already
complex case," the court "ha[d] discretion under Rule 403 to
exclude such" questioning. United States v. DeCologero, 530 F.3d
36, 60 (1st Cir. 2008). Moreover, the probative value of the
testimony that Condron sought to elicit regarding the MRPC as to
whether he acted in good faith would have been marginal, at best.
Thus, the district court did not abuse its discretion by preventing
Condron from cross-examining Colman about the MRPC.
Finally, even if we were to assume that the district
court's ruling was improper, Condron has not demonstrated that it
undermined his defense. The court's ruling left ample room for
Condron to advance his good faith defense via questioning of
Colman. The court explicitly permitted Condron to cross-examine
Colman about: whether he "was serving in his attorney capacity or
in his business-advising capacity"; whether he charged appropriate
contingency fees; and what he thought Condron "understood about
[their] relationship based on their interactions and their
communications." And defense counsel ably elicited testimony from
Colman establishing that Condron knew Colman was an attorney and
- 48 - that Colman had a "professional relationship" with Condron, was
the "project attorney for all the[] projects in this case," and
listed himself as an attorney in several documents submitted to
NREL in connection with the Section 1603 applications. Defense
counsel also established that Colman never advised Condron against
being a vendor to Metivier's company (ABE) and that, at the time
Colman and Condron were working on the Section 1603 applications,
Colman knew Condron and Metivier were dating but did not believe
they "had a legal relationship to disclose to the [Section] 1603
program." Additionally, Colman confirmed during cross-examination
that clients have "the right to expect that their lawyers are
competent" and will "keep them informed about the matters for which
they [are] represent[ed]." We need not further scrutinize the
trial record to conclude that the district court afforded Condron
plenty of opportunity to effectively cross-examine Colman.
In sum, "[g]iven the undeniable authority of trial
courts to place reasonable limits on cross-examination in order to
cut off protracted discussion of marginally relevant subjects, it
[was] well within the district court's discretion to limit"
Condron's cross-examination of Colman about the MRPC. United
States v. Coplin, 463 F.3d 96, 104 (1st Cir. 2006).
III. CONCLUSION
For all these reasons, we affirm Condron's conviction on
all four counts.
- 49 -
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