United States v. Giang

• Court: Court of Appeals for the First Circuit
• Decided: April 22, 2026
• Docket: 24-1829
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 24-1829

UNITED STATES OF AMERICA,

Appellee,

v.

LILIAN GIANG,

Defendant, Appellant.

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

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Montecalvo, Thompson, and Aframe, Circuit Judges.

Christine DeMaso, Assistant Federal Public Defender, for appellant.

Donald C. Lockhart, Assistant United States Attorney, with whom Leah B. Foley, United States Attorney, was on brief, for appellee.

April 22, 2026 MONTECALVO, Circuit Judge. After a jury trial,

Defendant-Appellant Lilian Giang was convicted on four counts of

failure to collect or pay over employment taxes in violation of 26

U.S.C. § 7202 and one count of mail fraud under 18 U.S.C. § 1341.

Her convictions stem from the operations of Able Temp Agency

("Able"), a staffing business she owned and managed. At trial,

the government's witnesses testified that Able paid workers in

unreported cash and submitted false payroll information to both

the Internal Revenue Service and Able's workers' compensation

insurer, resulting in lower tax bills and insurance premiums. On

appeal, Giang challenges four aspects of her trial: (1) the

admission of evidence about her alleged efforts to skirt

cash-withdrawal reporting requirements by withdrawing cash in

increments just below the reporting threshold, (2) the district

court’s refusal to give a requested jury instruction on implicit

bias, (3) the propriety of the court’s instructions regarding tax

obligations and good faith and, finally, (4) the sufficiency of

the evidence underpinning her mail fraud conviction. After

considering each of the purported errors Giang identifies, we

AFFIRM the district court.

I. BACKGROUND

Because this case comes to us after a jury trial, we

recount the facts relevant to the appellant's sufficiency

challenge in the light most favorable to the government and provide

- 2 - a neutral summary of the facts relevant to any other claims. See

United States v. Díaz-Rosado, 857 F.3d 116, 117 (1st Cir. 2017).

A. Giang's Business Operations

At the age of twenty, Lilian Giang immigrated to the

United States from Vietnam in 1987 after spending time in a refugee

camp in the Philippines. Giang left school in Vietnam during the

seventh grade and speaks limited English. In 1999, Giang and her

then-husband purchased a small store in New Hampshire, which they

operated together until their divorce around 2013. After the

couple divorced and sold the store, Giang supported their three

children on her own.

In 2015, Giang founded Able, a temporary employment

business based in Quincy, Massachusetts. Able provided short-term

laborers to client companies throughout the state. Many of Able's

workers were, like Giang, Vietnamese immigrants. The client

companies paid Able, and Able was responsible for paying the

workers and handling the attendant payroll tax obligations.

Giang personally managed most aspects of Able’s

operations, including job placements, worker transportation, and

payroll coordination. She relied on her daughter, Mi Giang Kul,

who had formal training in accounting, to enter payroll data into

Able's Intuit accounting system. That accounting system generated

worker paychecks, W-2s, and IRS Form 941 quarterly payroll tax

- 3 - reports.1 Giang also used an outside accountant, Wayne Hussey, to

prepare tax returns for Able and for her personally, though Hussey

did not prepare or file Able's Form 941s. Hussey explained that

Able "was designed not to ever make a profit," but instead passed

any profits to Giang as distributions so any profits were reported

on her personal income taxes.

B. Giang's Cash Withdrawals

Between 2015 and 2019, Giang made 774 cash

withdrawals -- over $3.7 million in total -- from bank accounts

connected to Able and Giang, many of which were held at Rockland

Trust Bank. Giang testified that she used the cash to pay her

workers.

From 2015 through October 2018, Giang never withdrew

more than $10,000 at once but often made withdrawals just below

that threshold -- sometimes multiple times per day. The federal

Bank Secrecy Act requires banks to report single cash withdrawals

over $10,000 to the Department of the Treasury. See United States

v. Morales-Rodríguez, 467 F.3d 1, 10 (1st Cir. 2006) (citing 31

U.S.C. § 5313). A Rockland bank teller testified that on October

15, 2018, she informed Giang about this reporting requirement after

the bank raised concerns internally about Giang's pattern of cash

1 An IRS Form 941 is a quarterly tax return document filed by employers to report the Social Security taxes, income taxes, and Medicare taxes they have withheld from employee paychecks. United States v. Buoi, 84 F.4th 31, 35 (1st Cir. 2023).

- 4 - withdrawals. A week after that conversation, Giang began making

withdrawals over $10,000 for the first time.

Giang's cash-accounting practices allowed her to

underreport Able's payroll and thus avoid over $800,000 in

employment taxes. Records from Able's bank accounts showed cash

withdrawals that far exceeded Able's reported payroll.

Several of the government's witnesses, including former

Able temp workers, Able client representatives, and a DOJ auditor,

testified that Able employees were often paid in cash for

additional hours beyond what their Intuit-generated paychecks

showed, sometimes below minimum wage, and that this extra cash pay

was not reported to tax authorities by Able. All of this,

according to the government, meant that Giang was not paying the

required employment taxes on these cash wages. Giang’s accountant

testified that Giang told him she was using the cash she withdrew

either to pay workers or to pay herself. He explained that, when

preparing Giang's taxes, he reported some of those cash-withdrawal

expenses as subcontractor costs and some as owner profit, depending

on what she told him about the transactions. Giang's daughter

testified that her mother never told her that Able was paying its

workers using off-the-books cash, personal checks from Giang, or

paying them using any other method besides the checks Giang's

daughter printed using Able's bookkeeping software.

- 5 - C. Able's Insurance Filings

From 2014 to 2020, Able held a workers' compensation

insurance policy issued by Travelers Indemnity Company

("Travelers").2 Able's insurance premiums were calculated in part

based on its total payroll: employers with larger payrolls

generally pay more, while those with fewer employees or lower

reported wages pay less. To compute an insured's premium,

Travelers would issue an estimated premium at the start of the

policy period. At the end of the year, Travelers would audit the

insured's payroll records and calculate the actual premium owed.

To complete those year-end audits, Travelers would solicit payroll

data from the insured.

In November of 2018, Travelers mailed Able an "Online

Invitation Letter," which asked the policyholder to complete the

year-end audit through Travelers' online portal or by mail. That

document explained that Travelers' audit forms and adjustment

letters would also be available electronically. Giang submitted

electronically a list of Able's workers and reported payroll. On

December 6, 2018, based on that submission, Travelers determined

that Able's actual premium was slightly less than Travelers'

start-of-the-policy estimate and sent Giang a premium adjustment

letter confirming that Able was due a refund of $802. But in

2Massachusetts law requires employers like Able to carry such insurance.

- 6 - reality, because Giang did not include the cash payments in the

payroll data she submitted, Able's real payroll was much higher

than reported, and the premium it paid for the 2017-2018 period

was about $30,000 less than it would have been had all of Able's

payroll been reported.

II. PROCEDURAL HISTORY

A federal grand jury in the District of Massachusetts

returned a five-count indictment against Giang on March 8, 2023.

A three-day jury trial was held in April 2024. The jury convicted

Giang on all counts. On September 9, 2024, Giang was sentenced to

eighteen months' imprisonment followed by two years of supervised

release. She timely appealed on September 11, 2024.

III. DISCUSSION

Giang presses four issues on appeal, which we address in

roughly the chronological order in which they arose. First, that

the district court should not have admitted evidence about the

$10,000 cash transaction reporting requirement because it was

irrelevant and prejudicial. Second, that the district court erred

by refusing to give her requested instruction on implicit bias.

Third, that the district court's instructions on good faith and an

employer's tax obligations improperly reduced the government's

burden to prove her guilty state of mind. Fourth, and finally,

that her conviction for mail fraud was not supported by sufficient

- 7 - evidence that she used the mail in furtherance of a crime or caused

it to be so used.

A. Admission of Evidence Related to Structuring

Before trial, prosecutors told Giang that they intended

to introduce evidence "that [she] structured cash withdrawals to

avoid the filing of Currency Transaction Reports." "Structuring"

one's transactions -- that is to say, deliberately withdrawing or

depositing cash in quantities intended to evade the $10,000 cash

reporting requirement -- is itself a crime. See 31 U.S.C.

§ 5324(a)(3), (d)(1); 31 C.F.R. § 1010.100(xx) (defining

structuring).3 Giang was not charged with structuring as a

separate offense, but the government sought to introduce her

structuring conduct as proof of the crimes with which she was

charged.

Giang then moved to exclude "any allegations of

structuring" as irrelevant and prejudicial. The government

responded that the evidence was intrinsic to the charged offenses

and relevant to Giang's knowledge and intent under Federal Rule of

Evidence 404(b). It promised not to "present evidence or argue

that [Giang] had violated any law" against structuring but would

3 In its simplest form, structuring might look like a person who wishes to deposit $45,000 into his bank account without triggering the reporting requirement making five deposits of $9,000 on different days and at different bank branches, rather than just depositing the entire $45,000 in a single transaction. See 31 C.F.R. § 1010.100(xx).

- 8 - argue that Giang "purposefully withdrew cash in amounts that would

not trigger her bank's reporting requirements." Based on this

assurance that the government would "not present evidence of or

argue restructuring as a discrete violation of law," the district

court denied Giang's motion to exclude. Giang objected again at

trial when the government presented evidence about the reporting

threshold. She argues that admitting the evidence over her

objection was error.

Because Giang moved to exclude this evidence before

trial and objected at trial too, her objection is preserved, and

we review for abuse of discretion. United States v.

Santana-Avilés, 120 F.4th 7, 11 (1st Cir. 2024). Giang says the

district court abused its discretion by admitting this evidence

for three reasons. First, the evidence was entirely irrelevant

because it did not show deliberate structuring. Second, even if

she deliberately structured her transactions to evade the

reporting requirement, she says, such evidence would implicate

Rule 404(b)'s prohibition on evidence of prior bad acts. And, she

continues, because the government cannot prove that the evidence

has the sort of "special relevance" to the charged offense required

for admission under that rule, it must be excluded. Finally, Giang

tacks on the contention that the evidence was simply too

prejudicial and should have been excluded under Rule 403.

- 9 - Seemingly invoking Rule 104(b), Giang first argues that

the evidence was irrelevant because it depended on a fact for which

there was insufficient proof -- that she deliberately structured

her cash withdrawals to avoid the reporting threshold. Under Rule

104(b), "[w]hen the relevance of evidence depends on whether a

fact exists, proof must be introduced sufficient to support a

finding that the fact does exist." Here, we are satisfied that

testimony about and records of Giang's transactions sufficiently

demonstrated that she deliberately avoided reporting requirements

such that the district court did not abuse its discretion by

determining that they were at least relevant.

The evidence showed that Giang routinely withdrew cash

in amounts just below the $10,000 reporting threshold, sometimes

more than once per day. Giang's arguments about whether the

evidence supported a conclusion that she did indeed intend to evade

the cash transaction reporting requirements go to the weight of

that evidence, not its admissibility. See United States v.

Weadick, 15 F.4th 1, 18-19 (1st Cir. 2021) (finding that weak

evidence of defendant’s involvement in drug scams was admissible

to show mutual trust among co-conspirators, and that challenges to

strength of the evidence went to weight, not admissibility); see

also United States v. Walsh, 928 F.2d 7, 10 (1st Cir. 1991) ("The

- 10 - fact that a benign account of the evidence was plausible . . . does

not mean that the evidence could not be introduced.").4

Nor are we persuaded by Giang's second argument: that

the evidence is inadmissible as prior bad act evidence under Rule

404(b) because it was unconnected to the charged conduct and was

unfairly prejudicial. Because the evidence of structuring was

"intrinsic" to the charged fraud offenses, Rule 404(b) does not

apply in the first place.

Admission of "[e]vidence intrinsic to the crime for

which the defendant is on trial . . . is not governed by Rule

404(b)." United States v. Epstein, 426 F.3d 431, 439 (1st Cir.

2005) (citation modified). Such intrinsic evidence includes

"prior acts that are 'part of [the] necessary description of the

events leading up to the crime[]' or that go to an 'element of the

charged offense.'" United States v. Souza, 749 F.3d 74, 84 (1st

Cir. 2014) (alterations in original) (quoting United States v.

Fazal–Ur–Raheman–Fazal, 355 F.3d 40, 50 (1st Cir. 2004)).

4 That Giang occasionally withdrew more than $10,000 after being told of the reporting rule does not disturb that conclusion. Perhaps Giang modified her behavior once she realized she was under scrutiny from her bank (as the government suggests), or perhaps -- as Giang insists -- she simply withdrew as much cash as she happened to need, which by chance exceeded $10,000 only after she was told of the reporting requirement. That the evidence was subject to multiple plausible interpretations is no reason to exclude it. See United States v. Mehanna, 735 F.3d 32, 65 (1st Cir. 2013).

- 11 - Our decision in Souza compels the conclusion that

Giang's cash withdrawals were intrinsic to the charged offense.

There, we explained that a district court did not abuse its

discretion by admitting evidence in a structuring case that "the

source of the funds that were eventually structured" was uncharged

fraudulent activity. Id. at 84-85. That the evidence of the fraud

"was part of the necessary description of the events leading up to

the structuring," "suggested [the defendant] knew he had obtained

the funds in an illicit manner," and finally, spoke to "his intent

to evade . . . reporting requirements." Id. at 84.

This same logic applies here, where we face Souza's

inverse: evidence of uncharged structuring that is intrinsic to

the charged failure to pay taxes. Like in Souza, Giang's frequent

cash withdrawals were "part of the necessary description of the

events leading up to" her scheme to pay her workers in cash and

thus avoid tax and insurance premium obligations. Id. And here,

as there, the evidence "provided important additional information

with which to evaluate" Giang's intent when it came to the charged

tax and mail fraud offenses. Id. at 85. Just as the fraudulent

source of the funds in Souza helped explain that defendant's motive

for structuring the funds, that Giang seems to have made her

withdrawals in increments designed to avoid scrutiny suggests that

she knew her cash-payment scheme was unlawful, and her attempts to

- 12 - avoid triggering cash transaction reports were part of her effort

to conceal the cash payments to her workers.

Finally, we are not persuaded by Giang's Rule 403

argument that the evidence of her alleged structuring was so

prejudicial that it ought to have been excluded. Because the Rule

403 prejudice-balancing inquiry is a "quintessentially

fact-sensitive enterprise," we reverse a district court's Rule 403

determination "only rarely and in extraordinarily compelling

circumstances." United States v. Monteiro, 871 F.3d 99, 111 (1st

Cir. 2017) (citation modified). Here, the district court did not

abuse its discretion by concluding that the evidence of alleged

structuring's probative value outweighed its prejudice. For all

the reasons just discussed, the evidence provided key context about

Giang's scheme and helped support a finding of intent. Giang does

not explain why this is the "extraordinarily compelling

circumstance" that justifies overturning the district court's Rule

403 determination. Id. (quoting United States v. Mare, 668 F.3d

35, 39 (1st Cir. 2012)). Accordingly, we conclude that the

district court did not abuse its discretion by admitting the

structuring evidence.

B. Jury Instructions

We turn next to Giang's arguments concerning the

district court's jury instructions. "A district court's refusal

to give a requested instruction is reviewed de novo." United

- 13 - States v. Figueroa-Lugo, 793 F.3d 179, 191 (1st Cir. 2015). On

appeal we ask whether the requested instruction was

"(1) substantively correct as a matter of law, (2) not

substantially covered by the charge as rendered, and (3) integral

to an important point in the case so that the omission of the

instruction seriously impaired the defendant's ability to present

[her] defense." United States v. McLellan, 959 F.3d 442, 467 (1st

Cir. 2020) (citation modified).

We apply a similar standard to arguments that a given

instruction was incorrect; an incorrect instruction "would not

warrant overturning the conviction if the potential error in the

jury instruction were harmless." Id. at 466. An erroneous

instruction that "deals with an essential element of the crime" is

harmless if it "appears beyond a reasonable doubt that the error

complained of did not contribute to the verdict obtained." Id.

(citation modified).

We address Giang's requested -- and rejected -- implicit

bias instruction before turning to the instructions on the charges.

1. The District Court's Refusal to Instruct on Implicit Bias

Before trial, Giang asked for an implicit bias

instruction based on model language promulgated by the

Massachusetts Supreme Judicial Court. This instruction describes

the concept of subconscious biases, urges jurors to deliberate

fairly and without prejudice, and includes strategies for avoiding

- 14 - such biases. The purpose of the instruction is to guard against

"built-in expectations and assumptions . . . even if we are not

aware of them and even if we believe we do not have them."5 The

district court declined to provide that or any other instruction

about implicit bias. Giang repeated her request after the jury

instructions were read to the jury, and the district court again

declined to include an implicit bias instruction.

Giang contends that the district court erred by refusing

to give her requested instruction on implicit bias. According to

Giang, this instruction was important because her defense centered

on her identity as a Vietnamese immigrant and non-native English

speaker. Not giving this instruction impaired her defense, she

says, because her "identities as a Vietnamese woman, immigrant,

and non-native English speaker were central at trial."

The government does not appear to dispute that the

Supreme Judicial Court's model instruction is correct as a matter

of law, and did not object below to its being given. But Giang

cannot prevail on either of the other two prongs of our test. We

are satisfied that, because of the district court's voir dire

questions and instructions, Giang's requested instruction was

5 SJC Model Jury Instructions on Implicit Bias - Preliminary Charge (Sep. 29, 2021), https://www.mass.gov/doc/sjc-model-jury- instructions-on-implicit-bias-preliminary-charge-pdf-sept-29- 2021/download [https://perma.cc/TD33-KW6U].

- 15 - "substantially covered by the charge as rendered." McLellan, 959

F.3d at 467.

For the reasons explained below, we find that although

the district court declined to give the Supreme Judicial Court's

model instruction, its voir dire questions and instructions

substantially covered the same ground as the implicit bias

instruction.

First, before sending the jury to deliberate, the court

specifically instructed the jurors to disregard any possible

prejudice: "You must do your duty as jurors regardless of any

personal likes or dislikes, opinions, prejudice, or appeals to

sympathy. That means you must decide the case based solely on the

evidence that is before you."

Beyond that, besides asking prospective jurors during

voir dire whether any had any generalized bias or prejudice that

might make it difficult to sit as an impartial juror, the district

court specifically inquired about possible bias against Giang

because of her identity:

As you may have observed, Ms. Giang, the defendant, is a naturalized American citizen of Vietnamese origin. She speaks English, but she is not fluent in the legal terms in the course of a criminal case, so she will require, as you can tell, the assistance of an interpreter during the trial.

Is there anything about these facts that might cause any prospective juror to doubt your ability to treat Ms. Giang with the same fair

- 16 - consideration you would give to any person accused of a crime?

This, taken together, is enough to mitigate the

potential bias Giang's requested instruction is supposed to guard

against.

We have explained that in the ordinary case, when a trial

judge instructs jurors that they must not be swayed "by prejudice,

nor sympathy, [nor] personal likes or dislikes," the judge does

not commit reversible error by declining to offer a more specific

instruction not to consider race, ethnicity, or national origin.

See United States v. Díaz-Arias, 717 F.3d 1, 23-24 (1st Cir. 2013)

(collecting cases). This is particularly so where the court also

conducts a thorough voir dire intended to root out potential bias.

Correia v. Fitzgerald, 354 F.3d 47, 53 (1st Cir. 2003) (voir dire

questioning on bias coupled with instruction to decide case only

on the facts was sufficient to mitigate possible bias); see also

United States v. Coleman, 149 F.4th 1, 26-28 (1st Cir. 2025) (no

abuse of discretion where trial judge declined to play video for

potential jurors on implicit bias but addressed issue with

instructions and at voir dire), petition for cert. docketed,

No. 25-6945 (U.S. Feb. 27, 2026).

- 17 - Finally, Giang's arguments about why the lack of such an

instruction impaired her defense fall flat.6 She contends that

the failure to give such an instruction "seriously impaired [her]

ability to present a defense," McLellan, 959 F.3d at 467, and

emphasizes that the government called three unrelated witnesses

who all shared a common Vietnamese last name (a fact remarked upon

by the prosecutor, who clarified that the witnesses were not

related). She adds that one witness also made a statement evincing

some degree of racial prejudice: that the witness's wife could

communicate with Giang because his wife "speaks Asian." But though

these comments may have involved race in a general sense, Giang

does not say why the remarks prejudiced her or, if they did, why

the district court's instruction to avoid deciding the case based

on any bias was insufficient to address them. Nor does Giang

explain how the lack of an implicit bias instruction prevented her

from presenting her preferred defense: that she spoke little

English and did not understand the tax code. In fact, Giang's

attorney pressed this argument in opening and closing arguments to

the jury and in questions to numerous witnesses, even though

Giang's requested instruction was not given.

6 The parties disagree about whether Giang raised these reasons in the district court. But because they fail under any standard of review, we need not reach that issue.

- 18 - For all these reasons, we are not persuaded that the district

court erred in declining to explicitly instruct the jury on

implicit bias.7

2. Final Jury Instructions

Giang lodges two more arguments against instructions the

district court gave when it explained the charges against her.

First, she argues that the jury should have been instructed that

employment taxes need not be withheld from subcontractor

wages -- unlike employee wages. Second, she contends that the

instructions on good faith were imprecise and misleading because

they equated a lack of good faith with a generalized purpose of

deceiving others. We address these issues in turn.

a. Subcontractor/Employee Distinction

When instructing the jury on the elements of failing to

collect or pay federal employment taxes, the district court

identified the three elements the government would need to prove:

First, that Ms. Giang had a duty to collect, account truthfully for, or pay over an employment tax; second, that Ms. Giang knew she had a duty to collect, account truthfully for, or pay over an employment tax; and, third, that Ms. Giang willfully failed to

7 Though we find no error in the district court's decision not to instruct the jury on implicit bias, we do not hold that such an instruction is never warranted. We are confident that, whether through targeted voir dire questions and instructions, as employed here, or through a general implicit bias instruction like the one Giang requested, district courts will continue to remain on guard against possible juror bias, whether conscious or unconscious.

- 19 - collect, account truthfully for, or pay over the employment tax.

The district court also explained what "employment tax" meant:

An employment tax is a tax imposed by federal law on the wages of individual employees, which includes an income tax, a social security tax, and a Medicare tax. Federal law requires the employer to file with the Internal Revenue Service or IRS, a Form 941, the employer’s federal quarterly tax return, and to pay over to the IRS the employment taxes that the employer has collected on a quarterly basis, that is, four times a year. The employer is required to report on the IRS Form [941] the wages that the employer paid its employees that quarter and the employment taxes paid on those wages. Wages include all compensation the employer paid the employee for work performed.

Giang does not say anything in the district court's

definition of these elements was wrong. Instead, she contends

that some of the trial evidence suggested Giang thought she was

paying her workers as subcontractors, and that the court therefore

should have also explained in its instructions that someone who

hires subcontractors is not required to pay the same kind of

employment taxes on those subcontractors' wages as they must pay

on employees' wages. Failing to do that, Giang says, prevented

the jury from deciding a material issue because if Giang's workers

were subcontractors, she would not have had to withhold and pay

the same employment taxes on their pay.

As a threshold matter, Giang and the government disagree

about what standard of review applies. Giang contends that she

- 20 - objected to the instruction at trial, and so we should review for

abuse of discretion. The government says that Giang never

objected, so plain error should apply.

From our review of the record, it appears Giang brought

this issue to the court's attention before and after the jury was

charged. The first time, the court informed the parties that there

would be "time to haggle later" over jury instructions. Although

the court interrupted Giang's counsel on her second try as she

attempted to lodge her objection to the instructions as given,

rendering the request a bit unclear, taking a "practical view of

the circumstances," we believe Giang has preserved her claim. See

United States v. Teixeira, 62 F.4th 10, 18 (1st Cir. 2023). At

bottom, the court's responses to Giang's attempts reveal that it

properly understood Giang's objection, and we thus find Giang's

claim of error preserved for appellate review. See United States

v. Castillo, 981 F.3d 94, 102 (1st Cir. 2020).

We review preserved claims of instructional error "under

a two-tiered standard: we consider de novo whether an instruction

embodied an error of law, but we review for abuse of discretion

whether the instructions adequately explained the law or whether

they tended to confuse or mislead the jury on controlling issues."

United States v. Jadlowe, 628 F.3d 1, 14 (1st Cir. 2010) (citation

modified). Giang's contention that the district court erred when

it failed to give her requested subcontractor instruction and

- 21 - thereby prevented the jury from deciding a material issue raises

a legal question, so we review de novo. See United States v.

Powers, 702 F.3d 1, 9 (1st Cir. 2012); see also United States v.

Ramos-Paulino, 488 F.3d 459, 461 (1st Cir. 2007) ("Where, as here,

a criminal defendant seasonably requests an instruction on a

particular theory of the case and the trial court flatly refuses

to submit that theory to the jury, our review is plenary.").

A district court is required to instruct the jury "on a

defense theory only if the evidence provides some foundation for

it." United States v. Angiulo, 897 F.2d 1169, 1206 (1st Cir. 1990)

(citation modified). But "[t]he burden is on the defendant, as

the proponent of the theory, to identify evidence adduced at trial

that suffices to satisfy this standard." Ramos-Paulino, 488 F.3d

at 462. We "take the evidence in the light most favorable to the

defendant, to see if the inferences and evidence can plausibly

support the theory of the defense." Powers, 702 F.3d at 9. Here,

after reviewing the evidence underlying Giang's

subcontractor-distinction theory, she has fallen "short of the

finish line." Ramos-Paulino, 488 F.3d at 462.

Giang's theory that the jury should have been instructed

that "[i]f the cash payments had been made to subcontractors, she

would not have had a duty to pay employment taxes on them," is

minimally supported by the fact that Able's 2017 Depreciation and

Amortization Form lists $1,185,913 in "Subcontracted Services" as

- 22 - a deductible business expense, suggesting that some of Giang's

workers may have been subcontractors, not employees. But all the

remaining evidence adduced at trial on that topic contradicts her

theory and, thus, justifies the district court's decision not to

give the subcontractor instruction.

Giang testified that she paid her workers a lower hourly

rate in cash because she would keep the residual money to pay

employment taxes at the end of the year -- meaning that she did

not think she was paying subcontractors who would be paying those

employment taxes themselves. Giang also testified that she (with

her daughter's help) told Travelers that Able did not use any

subcontractors. Able's insurance policy report for 2017 was

admitted into evidence and clearly stated that Able did not use

any subcontractors. And Able's contract with one of its clients,

Melville Candy, (also admitted into evidence) stated that "[a]ll

workers are employed by [Able]" and that Able would handle all

federal and state payroll taxes. Further, Giang never filed any

1099 forms with the IRS (as required for reporting payments to

subcontractors), even though her accountant testified that he had

discussed 1099 forms with Giang. And, critically, though both

Giang and her daughter testified at some length about Able's

business operations, neither testified or even suggested that Able

used subcontractors in addition to (or instead of) employees.

Indeed, Giang testified that her accountant had unilaterally made

- 23 - the decision to categorize the payments as subcontractor wages on

Giang's tax return, which Giang did not "know how to read."

So what Giang characterizes as "conflicting evidence" is

better described as one solitary tax form that weakly supports her

theory against a slew of evidence that contravenes it. See

Angiulo, 897 F.2d at 1207 ("There was little or no evidentiary

grounds to warrant instructing the jury on the [defense] theory.").

Giang had the burden of identifying sufficient evidence from her

trial that warranted a jury instruction on her subcontractor theory

of defense. See Ramos-Paulino, 488 F.3d at 462. Because she

failed to meet that burden, the district court did not err by

declining to instruct the jury on subcontractor tax obligations.

b. Good Faith

Next, Giang attacks the district court's instructions on

willfulness and good faith. The district court instructed the

jury that, for the charges of failure to collect or pay over taxes

and mail fraud, "willfully" meant "to participate voluntarily with

the specific intent to do something that the law forbids. Because

willfulness is an essential element of the crimes, actions taken

in good faith by a defendant amount to a complete defense." The

court further instructed: "a defendant [cannot] act in good faith,

even though she holds a certain opinion or belief, if she also

acted with the purpose of deceiving others."

- 24 - Giang objected to this additional language, arguing it

conflated general intent to deceive with the heightened standard

of specific intent required for tax crimes. The district court

overruled the objection, stating that it was a correct statement

of First Circuit law and appropriately included on that basis.

Giang contends that this formulation lowered the government's

burden of proof, because it shifted the jury's focus from "Giang's

state of mind with respect to her duties" to "whether she tried to

deceive anyone." Giang argues that the instruction did not require

this deceit to be tied to the crime.

Violations of the "highly technical statutes" that

govern tax law bear "an exception to the traditional rule that

ignorance of the law is no excuse." Bryan v. United States, 524

U.S. 184, 194-96 (1998) (citation modified). Instead, the

government must prove that a defendant "willfully" violated tax

laws: that she knew of a legal duty and intentionally violated it.

Cheek v. United States, 498 U.S. 192, 201 (1991).

Here, Giang says, the court's instructions would have

allowed the jury to convict on a finding of something less than

willfulness. This is because the instructions essentially defined

a lack of good faith as synonymous with willfulness, and then

further permitted the jury to find a lack of good faith if it found

Giang had deceived anyone, even if that deceit was unrelated to

the alleged crime.

- 25 - The government appears not to dispute that the district

court's instruction might have left the jury with the impression

that, if it found Giang had deceived anyone, it could not find she

had acted in good faith -- even if that deceit was unconnected to

her mental status about the alleged crime. But, it says, the

instruction did not equate "absence of good faith" with

"willfulness." That is, while a lack of good faith was a necessary

condition for a finding of willfulness, the instructions did not

say that such a lack was, standing alone, sufficient to find

willfulness.

Although the government is strictly correct that the

instruction did not equate deceptive conduct with a lack of

willfulness, jurors do not "pars[e] instructions for subtle shades

of meaning in the same way that lawyers might." Boyde v.

California, 494 U.S. 370, 381 (1990). So while the question is

close, we think that the instructions, as given, were in error.

The central point of Giang's defense was that she did not

understand the tax laws to which she was subject and so her

violations were unintentional. That defense made the

"willfulness" element of the instructions especially important.

As Giang hypothesizes, perhaps the jury might have focused on the

idea that Giang deceived someone for reasons unconnected to the

crime, such as not "tell[ing] her daughter about her cash payments

to workers because she knew her daughter did not like her carrying

- 26 - large sums of money," or concealing her payments from a Rockland

Trust bank teller "because she felt uncomfortable sharing personal

information about her workers."

But not every error requires reversal. Because it

"appears beyond a reasonable doubt that the error complained of

did not contribute to the verdict obtained," we decline to vacate

Giang's conviction. McLellan, 959 F.3d at 466 (citation modified).

The instruction must be considered in the context of the

entire trial record. United States v. Paredes-Rodriguez, 160 F.3d

49, 53 (1st Cir. 1998). The trial record reveals that Giang's

hypothetical arguments about deceiving her daughter or bank

employees for innocent reasons were just that: hypothetical. And

beyond that, the government's witnesses did not try to paint Giang

as a liar or fraudster in some general sense, nor did they raise

instances of deceit unconnected to the crime that might have

confused the jury.

Rather, the only allegedly deceitful conduct described

at trial -- Giang's misleading of bank tellers, her daughter, and

Travelers -- all tied directly into the offense itself, and thus

Giang's state of mind with respect to her tax duties.8 Besides

the trial evidence, the parties' closing statements about deceit

8 For example, the only reasons Giang gave for not telling her daughter about paying workers in cash and checks outside of Able's accounting system were that it was not "necessary" to do so, and because it was "not her [daughter's] business."

- 27 - also focused entirely on Giang's alleged deceit and state of mind

in connection with the specific charged crimes, not Giang's

possible deceit with respect to someone or something else unrelated

to the offense that might have led the jury astray. Indeed,

Giang's closing argument, at least with respect to deceit, was not

that she lied to her daughter or bank employees for innocent

reasons unconnected to the crime, but rather that she did not lie

at all. So, we do not think that "the record contains evidence

that could rationally lead to a contrary finding" absent the error.

United States v. Baldyga, 233 F.3d 674, 682 (1st Cir. 2000)

Besides this, the evidence that Giang acted willfully

was sufficiently strong that we think this single instruction could

not have made the difference between a guilty verdict and an

acquittal, particularly given that there was no evidence of deceit

outside of the direct evidence related to the crime. See Davignon

v. Clemmey, 322 F.3d 1, 9–10 (1st Cir. 2003) (explaining that a

putatively erroneous instruction was not harmful "given that it

almost certainly did not affect the verdict"). Giang's pattern of

structured withdrawals strongly suggests that she sought to

conceal her cash-payment practices from the authorities, and Giang

offered no reasonable explanation for this structuring conduct.

Further, Giang offered no compelling reason for concealing her

significant outside-the-payroll-system cash payments from her

- 28 - daughter (who managed payroll and Able's accounting system). And

her argument that she paid her workers in cash because they lacked

bank accounts and could not cash checks falls flat in the face of

evidence that at least some of the employees to whom she made

off-the-books cash payments were also paid by check. Accordingly,

we decline to reverse Giang's mail fraud or failure to pay tax

convictions because of instructional error on good faith.9

C. Sufficiency of the Mail Fraud Evidence

Finally, we consider Giang's argument that the evidence

was insufficient to support her mail fraud conviction. We focus

on "whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt."

United States v. Woodward, 149 F.3d 46, 56 (1st Cir. 1998)

(citation modified). A defendant who does not preserve a

sufficiency challenge -- as Giang concedes she failed to

do -- must convince us that her conviction "would result in clear

and gross injustice." United States v. Falcón-Nieves, 79 F.4th

9 We have explained that the willfulness standard set in Cheek does not apply to mail fraud. United States v. Dockray, 943 F.2d 152, 156 (1st Cir. 1991). Because we conclude that any error was harmless even under the higher Cheek standard, we do not reach the government's separate argument that there was no instructional error with respect to the mail fraud count because of the differing standards.

- 29 - 116, 124 (1st Cir. 2023) (citation modified). This is "a

particularly exacting variant of plain error review." Id.

To support a conviction for mail fraud under 18 U.S.C.

§ 1341, the government must prove "(1) a scheme to defraud based

on false pretenses; (2) the defendant's knowing and willing

participation in the scheme with the intent to defraud; and (3) the

use of interstate mail communications in furtherance of that

scheme." United States v. Tavares, 844 F.3d 46, 58 (1st Cir. 2016)

(citation modified). Giang challenges the sufficiency of the

evidence to prove only the last element.

In meeting this final use-of-the-mail element, the

government need not prove that the defendant has sent any mail

herself, but must prove only that the defendant has "(1) cause[d]

the use of the mails, which includes reasonably foreseeable

mailings, and (2) use[d] the mails for the purpose, or in

furtherance, of executing the scheme to defraud." United States

v. Hebshie, 549 F.3d 30, 36 (1st Cir. 2008) (emphasis omitted).

Because this latter "in furtherance" element "is to be broadly

read and applied," the mailing need only be "incident to an

essential part of the scheme" or "a step in the plot," and no

"but-for" link between the mailing and the scheme is required.

Id. (citation modified).

Giang says the evidence was insufficient to prove

(1) that the 2018 premium adjustment letter -- which served as the

- 30 - basis for this count -- was ever mailed, and (2) even if it were

mailed, that Giang could have reasonably foreseen that the letter

would be mailed. The government responds that, when Giang

submitted false payroll information to Travelers, she should have

foreseen that it would trigger the physical mailing of a refund

notice from Travelers, given her past dealings with the insurer.

At trial, the government presented evidence that

Travelers physically mailed that 2018 premium adjustment letter to

Giang in Massachusetts from either Georgia or Connecticut. The

government's primary witness was a Travelers investigator who

testified that adjustment letters were printed and mailed from

Travelers' printing office in Norcross, Georgia. The 2018 letter

itself, which was admitted at trial, identified a Connecticut

mailing address for Travelers. The testifying investigator had no

direct involvement with Giang’s policy until 2020 and lacked

firsthand knowledge about the letter's mailing in 2018. Even so,

he testified that premium adjustment letters like the one at issue

were, as a matter of practice, mailed in hard copy to insureds

following the audit.

Giang attacks the investigator's testimony as inherently

unreliable because it "contradicted the online invitation letter

which said the premium adjustment notice would be available

electronically." But, of course, that the notice might also have

been available online does not preclude its being mailed. Nor

- 31 - does the investigator's testimony that letters were mailed from

Travelers' Georgia printing office conflict, as Giang suggests it

does, with the fact that the letter itself identified a Connecticut

P.O. box as Travelers' mailing address. So, Giang offers no real

indication that the investigator's testimony was unreliable.

Armed with these facts, a reasonable jury could readily have

concluded that the premium adjustment notice was sent by mail.

As for foreseeability, we have explained that mailings

are reasonably foreseeable when they are part of "the criss-cross

of mailings that would reasonably be expected when false claims

are submitted to insurance companies." United States v. Morrow,

39 F.3d 1228, 1237 (1st Cir. 1994). And a defendant need not

expect a particular mailing. Rather, it is "simply the use of the

mails" at all that must be foreseeable. United States v. Pimental,

380 F.3d 575, 589 (1st Cir. 2004) (citation modified); see also

United States v. Bruckman, 874 F.2d 57, 60 (1st Cir. 1989) (mailing

requirement met "so long as some use of the mails was reasonably

to be anticipated in the course of the scheme").

Giang says that there was no such criss-cross here; she

dealt with Travelers electronically. But the investigator

testified that, at the time of the 2018 mailing, Giang would have

been sent a premium adjustment notice by mail at the end of each

- 32 - year she held a policy -- that is, in 2015, 2016, and 2017.10 So

while there may not have been a back-and-forth -- which, in any

event, we have never held to be required -- there was at least a

pattern of mailings over several years from which a reasonable

jury could draw the conclusion that Giang could have expected

Travelers to mail a notice in 2018, too.

Given the demanding standard of review Giang faces, we

are not persuaded by her sufficiency arguments and find that there

was no plain error here.

IV. CONCLUSION

For all the foregoing reasons, Giang's convictions are

AFFIRMED.

10Giang points out that the investigator said only that prior notices were "sent" to Giang, not "mailed." While true, his testimony about the prior notices must be read along with his other testimony that such premium adjustment notices "are sent by regular mail."

- 33 -