United States Court of Appeals For the First Circuit
No. 24-1988
UNITED STATES OF AMERICA,
Appellee,
v.
RICHARD EVANS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Montecalvo, Lynch, and Kayatta, Circuit Judges.
Martin G. Weinberg, with whom Michael Pabian was on brief, for appellant.
Mark T. Quinlivan, Assistant United States Attorney, with whom Leah B. Foley, United States Attorney, was on brief, for appellee.
July 1, 2025 LYNCH, Circuit Judge. Former Boston Police Department
(BPD) Captain Richard Evans appeals his federal convictions
arising out of his submission of false claims to BPD for overtime
pay and his participation in a scheme to submit such claims. We
affirm Evans' convictions for wire fraud and conspiracy to commit
wire fraud. We vacate his substantive federal programs theft
conviction and his conviction for conspiracy to commit federal
programs theft and remand for further proceedings consistent with
this opinion.
I.
Because Evans challenges the sufficiency of the evidence
supporting his convictions, we recite the facts in the light most
favorable to the jury's guilty verdicts. United States v.
DeCologero, 530 F.3d 36, 47 (1st Cir. 2008). We recount the
general background facts related to Evans' conviction here and
leave more detailed recitation of facts for the analysis of
particular arguments.
Evans entered BPD's police academy in 1983 and was
promoted to the rank of Captain on January 20, 2010. Captain is
the highest-ranking position within the BPD that can be achieved
without being appointed by the Police Commissioner or Mayor. There
are approximately twenty Captains within the BPD overseeing a
police force of approximately 2,200 officers. Captains are
responsible for knowing BPD rules and regulations, as well as the
- 2 - content of any memos disseminated by the Commissioner. BPD
officers seeking promotion to Sergeant, Lieutenant, or Captain are
sometimes tested on BPD rules and regulations during their
promotional exams. BPD officers in a supervisory position, such
as Evans, are also responsible for monitoring the activity of their
subordinates to ensure that there is no illegal conduct occurring.
After being promoted to Captain, Evans headed BPD's
Court Unit. On May 19, 2012, Evans was transferred, becoming
commander of BPD's Evidence and Supply Management Division. In
that position, Evans oversaw several of the Evidence and Supply
Management Division's sub-units, including the Evidence Control
Unit (ECU). The ECU is responsible for maintaining and storing
evidence collected in the course of BPD investigations and for
preparing evidence to be delivered to courts as needed. During
the relevant period charged in the indictment, under Evans' command
the ECU was staffed by approximately ten officers and two Sergeants
(all of whom we will call officers), who worked shifts that ran
from 7:30 A.M. to 4:00 P.M., Mondays through Fridays. The ECU was
housed in a building, about four to five miles from police
headquarters, which was equipped with interior alarms and motion
detectors, as well as a master perimeter alarm. Once the master
perimeter alarm was set, the presence of anyone in the building
would trigger the motion detectors and alarm.
- 3 - BPD maintained a policy known as "purge overtime," put
in place to address dwindling storage space in the ECU. ECU staff
could opt to earn such overtime. Purge overtime began under Evans'
predecessor and continued throughout Evans' tenure. Under this
policy, ECU officers were permitted to work overtime shifts to
"purge" old and unneeded evidence, organize evidence that was to
be retained, and scan old evidence into computer tracking systems.
Purge overtime shifts were typically available on Mondays through
Thursdays from 4:00 P.M. to 8:00 P.M., after the end of officers'
regular 7:30 A.M. to 4:00 P.M. shifts. Each officer was authorized
to work up to four hours of purge overtime, four nights a week.
Each shift was performed by approximately four ECU officers and
one supervisor. The ECU was not open on weekends.
To submit claims for overtime pay, officers fill out
overtime slips, which are reviewed and approved by that officer's
supervisor and then sent to the BPD's payroll unit for processing.
The overtime slips, which BPD has used since 2004, have pre-printed
boxes in which officers write the start and end time of their
overtime shifts and the hours worked during the shift. The slip
states in bold, underlined text that officers should report the
"Actual Hours Worked."
The overtime slip also requires supervisors to assure
the accuracy of an "overtime code." The overtime slip states:
"Overtime codes are grouped into four broad categories identified
- 4 - by the first number of [a] three-digit code." Those codes indicate
to the BPD payroll department the reason for which the overtime
was authorized. Relevant to this appeal are the series of codes
beginning with the number "two," which indicate that "[o]vertime
is authorized because an employee has to work an additional tour
or is called out for duty," and the series of codes beginning with
the number "three," which indicate that "[o]vertime is authorized
because the employee is working an extended shift/tour." The
overtime slip states that "[i]t is the responsibility of the
supervisor authorizing the overtime or the captain's designee, not
the officer submitting the overtime slip, to enter the appropriate
overtime code." The slip states that these "[o]vertime codes are
listed on a Commissioner's memorandum that is updated
periodically. It is the supervisor's responsibility to ensure
that the current list [is] used."
The overtime code used on a slip dictates how the
overtime will be paid. Overtime codes beginning with a two are
paid as a four-hour minimum, regardless of the actual hours worked,
while overtime codes beginning with a three are paid on an
hour-by-hour basis, in fifteen-minute increments. Only the
overtime code assigned to work affects the way overtime is paid,
not the type of work performed.
When BPD first began using the overtime slips in 2004,
the Commissioner circulated a memo notifying BPD officers that
- 5 - they were required to list on their slips the "[a]ctual hours
worked, time between start and end of overtime performed." The
memo further stated:
Start time, military 24-hour time, end time, military 24-hour time. The boxes must be filled in using the actual start and end times in military 24-hour time, as stated. The computer program will make the adjustment to pay the four-hour minimum when contractually required if the actual time is less than that.
BPD's overtime policies are also laid out in a Collective
Bargaining Agreement (CBA) between the City of Boston and the
Boston Police Superior Officers Federation, which is the
collective bargaining unit for uniformed Sergeants, Lieutenants,
and Captains. Membership in this collective bargaining unit is
automatic upon promotion to Sergeant, Lieutenant, or Captain.
Pursuant to the CBA, member officers are paid 150% of their salary
for any overtime worked. The CBA lists two circumstances in which
officers are entitled to use overtime codes beginning with a two
and to be paid for a minimum of four hours of overtime regardless
of the time actually worked. The first circumstance is "court
time," which provides for a four-hour minimum overtime payment for
any officer that is required to testify in court. The second is
"recall time," which occurs when an officer has finished a shift
but is required to return to work to address an emergency or other
issue. When officers work overtime that entitles them to a minimum
of four hours of overtime pay, they are still expected to report
- 6 - the actual start and end times of their overtime shift on their
overtime slips. Officers receive on-the-job training about BPD's
overtime policies and, at roll call, are sometimes advised as to
what codes should be used when submitting overtime and of the
importance of listing the actual hours worked on overtime slips.
As the Captain in command of the ECU, Evans attended
biweekly "CompStat" meetings with others in command positions. At
those meetings, commanders and supervisors undertook statistical
analysis of various BPD strategic goals to determine whether those
goals were being achieved. Some of these CompStat meetings dealt
specifically with issues related to overtime, and Captains were
required to give presentations explaining their overtime
expenditures, including how those expenditures were used and
whether they were within that Captain's assigned budget. Captains
who were exceeding their overtime budgets were required to explain
why and what steps were being taken to reduce their overtime
expenditures. The Chief of Police also began requiring supervisors
to attend a separate briefing specifically about overtime
following each CompStat meeting because of dramatic increases in
overtime within the department. At these overtime briefings,
supervisors were again required to discuss and justify the overtime
expenditures that occurred within their division.
Purge overtime shifts were not included in the CBA as a
type of overtime shift which entitled officers to a minimum of
- 7 - four hours of overtime. Nevertheless, at an informal meeting led
by two ECU Sergeants that occurred prior to Evans' transfer to the
ECU, ECU officers determined that they would work split overtime
shifts, where two officers each worked two hours of a four-hour
shift, as long as twenty cases were "purged" by each officer during
that shift. During these split shifts, two officers worked from
4:00 P.M. to 6:00 P.M. and two others worked from 6:00 P.M. to
8:00 P.M. All officers reported on their overtime slips that they
worked four hours each shift using an overtime code beginning with
the number "three" and were paid four hours of overtime for their
two-hour shifts. This use of split shifts was the practice among
ECU officers when Evans took command of the Evidence and Supply
Management Division.
At some point after Evans took command of the Evidence
and Supply Management Division, the way in which officers worked
and reported their purge overtime changed in response to the
introduction of a new, computerized evidence-tracking system in
the ECU. Officers began starting their purge overtime shifts all
at 4:00 P.M., rather than splitting shifts. Those officers
continued to work less than four hours, often ending their shifts
between 5:30 P.M. and 6:00 P.M. The officers continued to use
overtime codes beginning with the number "three" and to report
working four-hour overtime shifts, from 4:00 P.M. to 8:00 P.M.,
although they did not work four hours. Between April 1, 2015 and
- 8 - March 21, 2016, after the ECU officers had stopped working split
shifts and began working simultaneous purge overtime shifts, Evans
and other officers submitted a total of 1,139 overtime slips in
which they certified that they had worked four hours of purge
overtime. Of those, 753 were from days where the ECU was closed
and alarmed by 6:00 P.M.
The BPD's Anti-Corruption Division opened an
investigation into the ECU's overtime practices. The Anti-
Corruption Division reviewed overtime slips from ECU officers,
conducted surveillance of the ECU's overtime practices, and
compared alarm records at the ECU with payroll records. In time,
this investigation expanded to involve the Federal Bureau of
Investigation and the U.S. Attorney's Office.
On March 29, 2021, a federal grand jury indicted Evans
on one count of federal programs theft in violation of 18 U.S.C.
§ 666(a)(1)(A) or aiding and abetting such theft, one count of
conspiracy to commit federal programs theft, three counts of wire
fraud in violation of 18 U.S.C. § 1343 or aiding and abetting such
wire fraud, and one count of conspiracy to commit wire fraud.
After a five-day jury trial, Evans was convicted of all
counts. On October 24, 2024, Evans was sentenced to one year and
one day of incarceration for each count, served concurrently, fined
$15,000, and ordered to pay $17,390.99 in restitution.
- 9 - II.
Evans raises two primary challenges to his convictions.
He argues that the district court erred in giving the jury a
willful blindness instruction and that the evidence at trial was
insufficient to satisfy § 666's requirement that BPD received more
than $10,000 in federal benefits. The parties disagree as to
whether these challenges were properly preserved.
Evans also argues that the district court committed
other errors that the parties agree were not timely objected to at
trial: (1) failure to instruct the jury regarding § 666's federal
benefits requirement; (2) failure to properly instruct the jury as
to the defense of good faith; (3) failure to instruct the jury
that aiding and abetting liability requires "advance knowledge" of
the circumstances constituting the offense; and (4) permitting the
introduction of improper testimony.
- 10 - III.
A. Challenge to Willful Blindness Instruction
Because we conclude that Evans properly preserved his
objection,1 we turn to his claim that there was no evidentiary
support for a willful blindness instruction.2
"A willful blindness instruction is meant to 'inform[]
jurors that they may "impose criminal liability on people who,
recognizing the likelihood of wrongdoing, nonetheless consciously
refuse to take basic investigatory steps."'" United States v.
Bray, 853 F.3d 18, 30 (1st Cir. 2017) (alteration in original)
(quoting United States v. Griffin, 524 F.3d 71, 77 n.4 (1st Cir.
1 During a conference held prior to closing arguments, the district court informed Evans that it would be giving the jury a willful blindness instruction. At that time, Evans' counsel stated "just for the record, respectfully, can I take an objection to the willful blindness addition?" To which the district court responded: "Yeah. And let's renew that when I finish the instructions. . . . So that it's officially on the record." After the district court instructed the jury, it prompted Evans' counsel at sidebar to renew his objection to the willful blindness instruction. The transcript reflects that Evans' counsel objected to "the willful, blameless." The parties agree that this appears to be an error in transcription. Though the government argues that Evans failed to alert the district court to the grounds for his objection, "we think that the district court likely understood the thrust of the objection." United States v. Randazzo, 80 F.3d 623, 632 (1st Cir. 1996). 2 This court has been inconsistent as to the standard of review that applies when reviewing a preserved challenge to a willful blindness instruction, at times reviewing such challenges de novo, and at others for abuse of discretion. See United States v. Kanodia, 943 F.3d 499, 508 (1st Cir. 2019) (noting competing standards). We need not reach this issue because Evans' challenge fails under either standard.
- 11 - 2008)). "A willful blindness instruction is appropriate if (1) a
defendant claims a lack of knowledge, (2) the facts suggest a
conscious course of deliberate ignorance, and (3) the instruction,
taken as a whole, cannot be misunderstood as mandating an inference
of knowledge."3 United States v. Azubike, 564 F.3d 59, 66 (1st
Cir. 2009). "Direct evidence of willful blindness is not
required." Id. To determine whether the facts suggest a conscious
course of deliberate avoidance, "we must consider whether the
record evidence reveals 'flags' of suspicion that, uninvestigated,
suggest willful blindness." United States v. Epstein, 426 F.3d
431, 440 (1st Cir. 2005) (quoting United States v. Coviello, 225
F.3d 54, 70 (1st Cir. 2000)).
A willful blindness instruction was appropriate in this
case.4 As to the first requirement of lack of knowledge, Evans
argued that he did not know that the way he and his subordinates
logged their overtime was inappropriate because, by the time he
took command of the ECU, it was "already the culture."
As to the second requirement, there were enough "flags
of suspicion" to suggest a conscious course of deliberate
3 Evans does not argue that the instruction could be misunderstood as mandating an inference of knowledge, and so we do not address this third aspect of the test. 4 The parties disagree about what counts the district court's willful blindness instruction related to, and by extension which counts would be impacted by any error. Because we hold that there was no error, we need not and do not reach this issue.
- 12 - avoidance. See id. (quoting Coviello, 225 F.3d at 70). As a
Captain, Evans knew that the ECU's purge overtime practices were
inconsistent with all of the BPD's overtime policies. Evans was
an extremely high-ranking and experienced BPD official, having
served in various positions for more than thirty years. BPD
overtime policies were clearly communicated to him in a number of
ways, including the CBA to which he was subject, memos from the
Commissioner, and on-the-job training. To become a Sergeant,
Lieutenant, and Captain, Evans had to pass promotional exams that
could test on BPD overtime policy. The slips which Evans and his
subordinates used to submit their overtime explicitly stated, in
bold and underline, that the officers should report the "Actual
Hours Worked."
Indeed, the evidence showed that Evans and the other
officers knew that they would not receive four hours of overtime
pay for purge overtime shifts unless they falsely certified that
they had worked for four hours. This was a function of the overtime
code used to classify purge overtime, which began with the number
"three" and only paid the actual hours worked. When Evans first
joined the ECU, he submitted his overtime slips in compliance with
BPD policy and listed his actual start and end times and actual
hours worked. For those shifts where he reported the actual hours
worked Evans was paid for only those hours. Evans then began
falsely certifying that he worked four-hour purge overtime shifts
- 13 - and began to be paid for four hours of overtime. The repeated
inconsistencies between the ECU overtime practices and BPD
overtime policy were flags of suspicion that should have prompted
Evans to further investigate the permissibility of the ECU's
practices.
The practice of submitting overtime for periods in which
no ECU officer was working a purge overtime shift was, itself, a
flag of suspicion. Evans worked shifts where he could observe
firsthand that officers were not working the full four-hour shift
that they subsequently logged, yet he certified those obviously
falsified overtime slips. He also certified overtime slips that
listed hours worked during periods when the ECU was closed. Evans
received "relentless[]" reminders from his superiors at CompStat
meetings and elsewhere that reducing and justifying overtime
expenditures was a high priority for BPD.
Evans argues that he had no reason to investigate these
flags of suspicion because the ECU's overtime practices were
already in place when he took command of the Unit. We disagree.
Evans' argument also overlooks the simple fact that, even if some
of the ECU's overtime practices, such as the use of split shifts,
predated his tenure as supervisor, ECU officers transitioned away
from split shifts under Evans' watch to a system under which
officers logged overtime for hours in which the ECU was closed and
alarmed.
- 14 - Evans' conduct also supports that he was engaged in a
conscious course of deliberate avoidance. When he was supervisor
of the BPD's Court Unit, Evans sent an email to his superior
officer inquiring as to how overtime should be handled in that
Unit. This is consistent with the typical practice for seeking
clarification of BPD's overtime policies. Evans' failure to seek
clarification as to the policies governing purge overtime suggests
that he deliberately avoided learning whether the ECU's purge
overtime practices comported with BPD policy.
Given the numerous flags of suspicion and Evans'
conspicuous failure to seek clarification from his superiors, a
willful blindness instruction was appropriate.
B. Challenge to Sufficiency of Evidence as to Both Convictions Under 18 U.S.C. § 666 Benefits Element
Evans next argues that the government failed to produce
sufficient evidence to establish that the BPD received more than
$10,000 in federal benefits during the time periods relevant to
Evans' federal benefits theft and conspiracy to commit federal
benefits theft convictions. We agree.
"Section 666 of Title 18 of the United States Code
prohibits acts of theft and fraud against organizations receiving
funds under federal assistance programs." Fischer v. United
States, 529 U.S. 667, 675 (2000). Section 666 requires that "the
organization, government or agency" affected by the charged
- 15 - offense "receive[d], in any one year period, benefits in excess of
$10,000 under a Federal program." 18 U.S.C. § 666(b). This is
often referred to as § 666's "jurisdictional element." See United
States v. DeQuattro, 118 F.4th 424, 428 (1st Cir. 2024). But "not
all federal funds constitute 'benefits' under the statute." United
States v. Bravo-Fernández, 913 F.3d 244, 247 (1st Cir. 2019). Only
federal monies that "guard[], aid[], or promote[] well-being" may
qualify as "benefits" within the meaning of § 666(b). Fischer,
529 U.S. at 677 (quoting Webster's Third New International
Dictionary 204 (1971)). "To determine whether an organization
participating in a federal assistance program receives 'benefits,'
an examination must be undertaken of the program's structure,
operation, and purpose." Id. at 681.
At trial, the government called as a witness Lisa
O'Brien, then-Bureau Chief for the BPD's Bureau of Administration
and Technology, and BPD's Finance Director from 2012 to 2017.
O'Brien testified that, as Finance Director, she oversaw, among
other things, the federal grants BPD received. O'Brien testified
that BPD received more than $10,000 in federal funds each year
from 2012 to 2019. O'Brien also prepared a report on the specific
federal funds BPD received, which was incorporated into the record
as a government exhibit. This report listed the name of each
grant, the amount awarded, the amount expended, and the start and
end date of the grant. O'Brien identified two grants that paid
- 16 - more than $10,000 to BPD during a one-year period relevant to
Evans' federal benefits theft charges: a "Boston Community-based
Violence Prevention Grant" and a "VAWA STOP Grant."5 O'Brien
testified that the Community-based Violence Prevention Grant was
a $2.9 million grant, disbursed quarterly, and ran from December 1,
2015 through September 30, 2017. As to the VAWA STOP Grant, she
testified that it was a "Violence Against Women" Grant, which
"support[ed] the salary and fringe and any overtime for domestic
violence advocates" and the supporting exhibits stated that it was
a $45,811.53 grant that ran from October 1, 2015 through December
31, 2016.
At oral argument, the government clarified that it was
relying on the Community-based Violence Prevention Grant to
satisfy the benefits element for Count Two, "Theft Concerning
Programs Receiving Federal Funds; Aiding and Abetting." The
government stated that it was relying on the VAWA STOP Grant to
satisfy the benefits element as to Count One, "Conspiracy to Commit
Theft Concerning Programs Receiving Federal Funds."
The parties disagree as to whether Evans' argument is
preserved.6 We need not resolve this preservation issue because
5 O'Brien also identified a third grant from that time period, called a "JAG Equipment Grant." At oral argument, the government conceded that it was not arguing that the JAG Equipment Grant satisfied § 666's benefits element. 6 The government argues that Evans failed to renew his sufficiency of the evidence objection after presenting evidence in
- 17 - the outcome is the same under either standard. The minimal
evidence introduced at trial as to the structure and purpose of
the two grants is insufficient to establish that those grant funds
constituted "benefits" within the meaning of 18 U.S.C. § 666(b).
The government attempts to rely on this court's decision
in Bravo-Fernández, 913 F.3d 244, to argue that, in this case, it
presented minimally sufficient evidence of the two grants'
structure, operation, and purpose to meet the required test. See
Fischer, 529 U.S. at 681. We disagree.
In Bravo-Fernández, the defendants appealed their § 666
convictions following retrial.7 See 913 F.3d at 246-47. The
defendants argued that the government failed to introduce evidence
at this second trial to satisfy § 666's benefits element. Id. at
247. This court agreed. In doing so, the court contrasted the
record in the second trial with the record in the first trial.
Id. at 247-48. At that first trial, "[a]n employee of the Puerto
Rico Treasury Department [had] testified for the government that
his defense at trial and so his objection should be reviewed for "clear and gross injustice," which is "a particularly exacting variant of plain error review." See United States v. Freitas, 904 F.3d 11, 23 (1st Cir. 2018) (emphasis omitted) (quoting United States v. Foley, 783 F.3d 7, 12 (1st Cir. 2015)). Evans contends that his objection was sufficiently preserved and should be reviewed de novo. 7 This court had vacated the defendants' prior convictions for reasons unrelated to Evans' appeal. See Bravo-Fernández, 913 F.3d at 246.
- 18 - 'the Senate of Puerto Rico childcare program (known as the Food
Program for the Care of Children and Adults) receive[d] funding
from the Government of the United States.'" Id. at 248 (third
alteration in original). "The witness [had] further averred, with
the support of documentation also admitted into evidence, that the
Puerto Rico Senate annually received around $20,000 in federal
funds for the childcare program during the relevant period." Id.
But Bravo-Fernández does not support the government's
argument. At most, its language in dicta might be read to suggest,
but not hold, that at the first trial, the government might have
met its burden. But we do not so read Bravo-Fernández, as the
issue of the sufficiency of the evidence in the first trial was
not before the court. Beyond that, in this case, as to the VAWA
Stop Grant, the government's evidence was only that the grant
"support[ed] the salary and fringe and any overtime for domestic
violence advocates." This evidence provides no information about
the program's "structure, operation, and purpose." Fischer, 529
U.S. at 681. The government's evidence does not even explain what
the duties of the domestic violence advocates were, nor how the
program "guards, aids, or promotes well-being," provides
"financial help in times of sickness, old age, or unemployment,"
or constitutes "a cash payment or service provided for under an
annuity, pension plan, or insurance policy." See id. at 677
(quoting Webster's Third New International Dictionary 204 (1971)).
- 19 - Nor does the government's evidence explain why "domestic violence
advocates" should be taken as identical to the direct provision of
food assistance for children involved in Bravo-Fernández. See 913
F.3d at 248. The government did not meet its burden to show that
the VAWA Stop Grant funds provided benefits beyond simply helping
to cover the salaries of some employees, nor that that those
employees did more than advocate on issues of domestic violence
within BPD or the Massachusetts government.
The record contains even less information as to the
Community-based Violence Prevention Grant, detailing only its
name, amount, and duration. The prosecution failed to provide any
evidence to explain the program's structure and purpose, and that
is plainly insufficient to establish the benefits element of § 666.
See Fischer, 529 U.S. at 681.
Because the government failed to present sufficient
evidence to satisfy 18 U.S.C. § 666(b)'s benefits element as to
both Count One and Count Two, we vacate Evans' convictions for
conspiracy to commit federal benefits theft and federal benefits
theft, respectively.8
8 Since we have vacated both convictions involving the benefits element of § 666(b), we need not reach Evans' challenge to the district court's jury instructions as to that issue. Cf. United States v. Alioto, 469 F.2d 722, 723 n.1 (1st Cir. 1972) ("Since we dispose of this case on other grounds, we need not reach this question.").
- 20 - C. Other Challenges as to Which Evans Must Show Plain Error
We review Evans' unpreserved objections for plain error.
See United States v. Latorre-Cacho, 874 F.3d 299, 303 (1st Cir.
2017). Under this standard, Evans "faces the 'heavy burden of
showing (1) that an error occurred; (2) that the error was clear
or obvious; (3) that the error affected his substantial rights;
and (4) that the error also seriously impaired the fairness,
integrity, or public reputation of judicial proceedings.'" United
States v. Prieto, 812 F.3d 6, 17 (1st Cir. 2016) (quoting United
States v. Riccio, 529 F.3d 40, 46 (1st Cir. 2008)). Because we
hold that Evans cannot show clear error as to the district court's
instructions, we address only those prongs of this test that are
dispositive of each claim.
i. Challenges for Instructions Given
a. Good-Faith
Evans argues that the district court's instruction that
good faith does not "negate a defendant's intent to deceive or
defraud others" improperly conveyed to the jury that it "could
simultaneously find good faith and intent to defraud and, in that
situation, it would be required to convict." Evans further argues
that it was improper for the district court to state that a
defendant's good faith "may negate an intent to commit the crime
of conspiracy" because good faith is an absolute defense.
- 21 - Evans cannot demonstrate that this was plain error. "[A]
jury instruction 'must be evaluated not in isolation but in the
context of the entire charge.'" United States v. Correia, 55 F.4th
12, 44 (1st Cir. 2022) (quoting United States v. Gonzalez, 570
F.3d 16, 21 (1st Cir. 2009)). Here, the district court instructed
the jury on good faith in the context of Evans' conspiracy charges
as follows:
Since an essential element of the crime of conspiracy is the intent to commit the underlying crime, it follows that good faith on the part of Mr. Evans is a legitimate defense. If you find that Mr. Evans believed in good faith that he was acting properly, even if he were mistaken in that belief, and even if others were injured by his conduct, there would be no crime. As with other material aspects of an offense, Mr. Evans has no burden to establish his good faith. The burden is on the government to prove the lack of good faith beyond a reasonable doubt.
Keep in mind that, while a defendant's honest belief that his actions were proper may negate an intent to commit the crime of conspiracy. However, a good faith belief that a potential victim will ultimately sustain no harm is not a defense. Nor will good faith negate a defendant's intent to deceive or defraud others. Your focus must be on whether the government has proved beyond a reasonable doubt that Mr. Evans, in fact, acted with a bad purpose to disobey or disregard the law.
As to Evans' wire fraud counts, the district court instructed that
"[w]ith respect to the willfulness element, that I explained
earlier, actions taken in good faith by a defendant constitute[]
a legitimate defense." That language did not amount to an error
- 22 - that was "clear or obvious." See Prieto, 812 F.3d at 17 (quoting
Riccio, 529 F.3d at 46). "[N]ot every ambiguity, inconsistency,
or deficiency in a jury instruction rises to the level of a due
process violation." Latorre-Cacho, 874 F.3d at 302 (quoting
Middleton v. McNeil, 541 U.S. 433, 437 (2004)). "The question is
whether the ailing instruction so infected the entire trial that
the resulting conviction violates due process." Id. (quoting
Middleton, 541 U.S. at 437). The district court repeatedly stated
that "actions taken in good faith by a defendant constitute[] a
legitimate defense." It is neither clear nor obvious that the
district court's inconsistent instructions rose to the level of a
due process violation.
As to Evans' argument that the district court's use of
"may" improperly left open the possibility that acquittal would be
optional had the jury found that Evans acted in good faith, there
was no error. The full context of the district court's instruction
makes it clear that the phrase "may negate" in no way suggested
that acquittal was optional in such circumstances. It simply
referred to the earlier portion of the district court's
instruction, which stated that "[i]f you find that Mr. Evans
believed in good faith that he was acting properly . . . there
would be no crime."
- 23 - b. Advance Knowledge
Evans next argues that the district court erred by
failing to adequately instruct the jury that convicting Evans for
aiding and abetting the commission of his various charged crimes
required proof that Evans had "advance knowledge" of "the
circumstances constituting the charged offense." See Rosemond v.
United States, 572 U.S. 65, 77-78 (2014). Evans contends that the
district court's instruction lacked "any explanation of, or even
reference to, [the] advance knowledge requirement." The district
court's instruction was not so lacking.
The district court instructed the jury that to convict
Evans of aiding and abetting, it must find that the government
"prove[d] that the defendant consciously shared the other person's
knowledge of the underlying criminal act and intended to help him
or her." This instruction substantially comports with our advance
knowledge precedent. This circuit "already had an advance
knowledge requirement for aiding and abetting convictions prior to
[the Supreme Court's establishment of such a requirement in]
Rosemond[] and . . . has consistently used the 'consciously
shared' formulation to describe our aiding and abetting law."
United States v. Manso-Cepeda, 810 F.3d 846, 852 n.7 (1st Cir.
2016) (quoting United States v. García-Ortiz, 792 F.3d 184, 188
(1st Cir. 2015)).
- 24 - Evans argues incorrectly that our decision in United
States v. Fernández-Jorge, 894 F.3d 36 (1st Cir. 2018), compels
the conclusion that the instruction was "clear or obvious" error.
That is not correct. In Fernández-Jorge, this court considered
whether a district court's instruction that the jury must find
"that the charged defendants consciously shared the other person's
knowledge of the crimes charged in the indictment, intended to
help each other, and took part in the endeavor, seeking to make it
succeed" adequately communicated the requirement that a would-be
accomplice must have advance knowledge of each element of an
offense. Id. at 52-53. This court observed that "whether this
formulation r[an] afoul of Rosemond depend[ed] on whether 'seeking
to make it succeed' applie[d] to all of the clauses that precede
it, or only to its immediate predecessor: 'took part in the
endeavor.'" Id. at 53. This was so because "[i]f it applie[d] to
all of the preceding clauses, then we ha[d] no Rosemond problem
because the instructions would require the jury to find that an
alleged aider and abettor knew that the principal was to commit
the crime of possessing a gun in a school zone when he leant his
assistance with the intent to make the criminal endeavor succeed."
Id. "But if the pronoun 'it' in 'seeking to make it succeed'
refer[red] only to 'the endeavor,'" then "the instructions would
allow the jury to find a defendant guilty of aiding and abetting"
by "assisting the principal in bringing a gun to a particular
- 25 - location, and only then, upon realizing that this location was in
a school zone . . . 'consciously shar[ing]' the principal's
knowledge of the crime" of possessing a gun in a school zone. Id.
This court concluded that the second interpretation was the more
likely of the two and that the instruction violated due process.
Id. The instruction at issue in this case does not share the
ambiguity we addressed in Fernández-Jorge.
ii. Plain Error as to Evidentiary Objections
a. Opinion Testimony
Evans argues that the district court permitted witnesses
to testify as to legal conclusions when they testified as to the
meaning of the CBA and various BPD regulations. Evans contends
that these are "purely legal questions" and are "exclusively the
domain of the judge." United States v. Mikutowicz, 365 F.3d 65,
73 n.4 (1st Cir. 2004) (quoting Nieves-Villanueva v. Soto-Rivera,
133 F.3d 92, 99 (1st Cir. 1997)). The argument mischaracterizes
the testimony. Most of that testimony is better characterized as
being based on the witnesses' first-hand experiences working for
the BPD. For example, Ellen Coppola, who worked for BPD's payroll
department, testified that she was "familiar" with the term
"extended shift/tour" and that she understood it to mean "[a]ny[]
[overtime] that takes place immediately following your tour of
duty" which was measured by "actual hours worked, but within 15
minutes." Coppola did not interpret the CBA or any BPD regulation
- 26 - to form the basis for her testimony. Rather, she permissibly
testified based on her personal experience. See United States v.
George, 761 F.3d 42, 59 (1st Cir. 2014) ("Time and again we have
stated that Rule 701 lets in 'testimony based on the lay expertise
a witness personally acquires through experience, often on the
job.'" (quoting United States v. Santiago, 560 F.3d 62, 66 (1st
Cir. 2009))).
A different issue is the testimony from the former
Superintendent Chief of Professional Standards for the BPD, Frank
Mancini. Mancini was asked: "Does section 3 [of the CBA], which
controls how overtime is measured or accrued, what time intervals,
whether it's a 15-minute interval or a four-hour minimum, does
that apply to voluntary overtime?" He responded "[y]es." Due to
the awkwardness of the question, it is unclear whether his
testimony was his observation based on his experience or an opinion
as to a "purely legal question." See Mikutowicz, 365 F.3d at 73
n.4 (quoting Nieves-Villaneuva, 133 F.3d at 99). But even if it
were the latter, it is insufficient to allow Evans to meet the
"heavy burden" of plain error review. Prieto, 812 F.3d at 17
(quoting Riccio, 529 F.3d at 46). Given the ample other evidence
that overtime was paid in fifteen-minute intervals except for court
and recall time, it is highly unlikely that Mancini's testimony
affected the outcome of the trial.
- 27 - Indeed, Evans does argue that witnesses improperly
testified as to the legal significance of Evans' actions. He
alleges that witnesses were improperly "asked to characterize
[the] defendant's conduct in 'terms that demand an understanding
of the nature and scope of the criminal law.'" See United States
v. Baskes, 649 F.2d 471, 478 (7th Cir. 1980). He focuses on
testimony from Mancini as to the circumstances under which other
instances of overtime theft were "handled as criminal
investigations" and the "markers" that "indicated that they were
criminal in nature" and testimony from former BPD officer Joseph
Nee as to whether Nee felt he was committing "theft" or
"[s]tealing" when he certified overtime hours he had not actually
worked.
Evans relies on several out-of-circuit opinions to
support the proposition that such testimony was improper. See
Baskes, 649 F.2d at 478 ("When, as here, a witness is asked whether
the conduct in issue was 'unlawful' or 'willful' or whether the
defendants 'conspired,' terms that demand an understanding of the
nature and scope of the criminal law, the trial court may properly
conclude that any response would not be helpful to the trier of
fact."); United States v. Wantuch, 525 F.3d 505, 514 (7th Cir.
2008) ("The question posed to [the witness,] to opine as to [the
defendant]'s knowledge of whether his actions were 'legal,'
demanded a conclusion as to the legality of [the defendant]'s
- 28 - conduct, which is unhelpful to the jury under Rule 701."); United
States v. Southers, 583 F.2d 1302, 1306 (5th Cir. 1978) ("'[I]ntent
to injure and defraud is a phrase of particular legal construction
where a defendant is charged with violations of 18 U.S.C. [§§] 656
and 1005; therefore, the bank officials were properly not permitted
to give their opinions on the question of intent to injure and
defraud.'").
Evans has failed to establish that the claimed errors
were clear or obvious. The cases that Evans relies on dealt with
instances in which witnesses testified as to the legality or legal
significance of the defendant's conduct. But Evans concedes that
in this case, "the witnesses did not specifically characterize
Evans' conduct in criminal-law terms" and argues that "the jury
could hardly escape the inference that the [witnesses']
descriptors applied to Evans's undisputed submission of overtime
in four-hour blocks." Given the factual distinction Evans
acknowledges and the heavy burden that Evans faces on plain error
review, the inference he relies on is insufficient to establish
that any error was clear or obvious.
b. Evans' State of Mind
Evans argues that the district court committed plain
error by permitting witnesses to speculate as to Evans' state of
mind. Evans specifically objects to testimony from Mancini, former
ECU officer Margaret Waggett, Nee, and FBI Agent Matthew Iannetti.
- 29 - Mancini was shown an email that Evans sent to several of
his subordinates when he was supervisor of BPD's Court Unit, which
notified them that they had violated BPD "Rule 3265(B)," which
prohibits officers from performing more than two overtime details
at the same licensed premise in a month. Mancini was asked whether
it appeared, "based on [Evans'] email," that Evans was
"knowledgeable about BPD's rules and regulations . . . governing
details." Mancini answered "[y]es."
Waggett was asked whether she attempted to hide the ECU's
overtime practices from Evans after he took over as ECU supervisor.
Waggett stated that she did not, and that she "assumed he knew"
about the overtime practices, though she "never had a discussion
with him about it."
Nee was asked whether he could have "gotten away with
splitting . . . shifts and only working half the time if the
supervisors didn't know it," to which he answered "[n]o, sir."
Iannetti was shown some of Evans' overtime slips on which
Evans had received overtime with a four-hour minimum. On those
slips, Evans listed a start and end time that equated to less than
four hours worked. Iannetti was then asked "are these examples
that if there's a four-hour minimum, he knows to put in less than
four hours?" Iannetti answered "[c]orrect."
Evans has not shown that this testimony "affected his
substantial rights" and "that the error also seriously impaired
- 30 - the fairness, integrity, or public reputation of judicial
proceedings." Prieto, 812 F.3d at 17 (quoting Riccio, 529 F.3d at
46). Evans devoted, at most, a single sentence of argument to the
second and third prongs of the plain error analysis as it pertains
to the testimony he alleges went to his state of mind. He makes
no attempt to explain how the fairness of his trial could have
been compromised given the substantial, unrelated evidence from
which the jury could infer Evans' state of mind, such as Evans'
decision to adopt ECU overtime practices after taking over as
supervisor and the obvious falsity of his subordinates' claimed
four-hour overtime shifts.
c. Leading Questions
Evans argues that the district court plainly erred by
allowing the government to "rel[y] extensively on leading
questions in direct-examination of its own witnesses with no
legitimate need to do so." Evans cannot show that, if the district
court committed any error, that the error "was clear or obvious."
Id. (quoting Riccio, 529 F.3d at 46). Evans concedes that district
courts "have discretion to permit leading questions where
necessary." See United States v. Hansen, 434 F.3d 92, 105 (1st
Cir. 2006) ("There is, of course, a degree of tolerance for leading
questions under certain circumstances. Because it is so case-
specific, 'the trial judge is best situated to strike a practical
and fair balance' and is afforded 'extensive discretion over the
- 31 - phrasing of questions.'" (quoting United States v. McGovern, 499
F.2d 1140, 1142 (1st Cir. 1974))).
The district court noted that "both sides [were] using
leading questions" and explained to the jury that such questions
were "[s]ometimes . . . helpful in moving the testimony along."
We have held that leading questions are appropriate to "lay a
foundation for a line of questioning or to assist in developing
coherent testimony." United States v. Mulinelli-Navas, 111 F.3d
983, 990 (1st Cir. 1997). Our sister circuits have held that
leading questions are specifically permitted to "move direct
examination along." See, e.g., United States v. Cephus, 684 F.3d
703, 707 (7th Cir. 2012); United States v. Mejia-Ramos, 798 F.
App'x 749, 753 (4th Cir. 2019) (unpublished). Given the foregoing
precedent, the district court's rationale for permitting leading
questions was not a clear or obvious error.
d. Other Testimony
Evans objects to testimony solicited by the government
as to "the importance of officer truthfulness" or which
characterized Evans' conduct as "'wrong' or 'bad'" and argues that
this testimony "unfairly prejudice[d] the jury against Evans."
These arguments are undeveloped, particularly for an issue on plain
error review, and have been waived. See United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990).
- 32 - e. Cumulative Error
Evans argues that, even if none of the above errors are
sufficient to independently call his conviction into question, a
new trial should be ordered under the cumulative-error doctrine.
Under the cumulative error doctrine, "'[i]ndividual 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. Baptiste, 8 F.4th 30, 39 (1st Cir.
2021) (quoting United States v. Sepulveda, 15 F.3d 1161, 1195-96
(1st Cir. 1993)). "Factors to be weighed in assessing the force
of a claim of cumulative error include 'the nature and number of
the errors committed; their interrelationship, if any, and
combined effect; how the district court dealt with the errors as
they arose . . .; and the strength of the government's case.'"
United States v. Padilla-Galarza, 990 F.3d 60, 85 (1st Cir. 2021)
(omission in original) (quoting Sepulveda, 15 F.3d at 1196).
Evans asks us to find that "the many unpreserved
instances of improper opinion testimony and several unpreserved
instructional errors . . . in combination with each other" satisfy
the plain error standard. They do not so satisfy that standard.
As we have explained, several of the alleged errors were not errors
at all, while others may have been errors but were not obviously
so. Evans does not explain how these errors, taken together,
satisfy the third and fourth prongs of plain error review.
- 33 - III. Conclusion
For the foregoing reasons, we affirm Evans' convictions
for conspiracy to commit wire fraud, and wire fraud. We vacate
his convictions for conspiracy to commit federal programs theft
and federal programs theft and remand for further proceedings
consistent with this opinion.
- 34 -