Petition for Writ of Certiorari — Daniel J. Griffin, Petitioner v. United States, et al.

APPENDIX TABLE OF CONTENTS

OPINIONS, ORDERS, AND VERDICT

Opinion, U.S. Court of Appeals for the First

Circuit (December 19, 2025) 0... cceseecceeeeeeeeee

Judgment, U.S. Court of Appeals for the First

Circuit (December 19, 2025) .0......cccccceeseeeceeeees

Judgment In a Criminal Case, U.S. District

Court for the District of Massachusetts

(May 10, 2024) 00... cececececeeseceesseseeeceeceneeerens

Verdict Form as to Mr. Griffin, U.S. District

Court for the District of Massachusetts

(December 12, 2023) saccssssscassscssssssencccersonevsaees

OTHER DOCUMENTS

Indictment, U.S. District Court for the District

of Massachusetts (December 10, 2020) .........

App.la

OPINION, U.S. COURT OF APPEALS

FOR THE FIRST CIRCUIT

(DECEMBER 19, 2025)

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

UNITED STATES OF AMERICA,

Appellee,

Vv.

WILLIAM W. ROBERTSON and

DANIEL J. GRIFFIN,

Defendants, Appellants.

Nos. 24-1475, 24-1540, 24-1541

Appeals from the United States District Court

for the District of Massachusetts

[Hon. Margaret R. Guzman, U.S. District Judge]

Before: GELPI, LYNCH, and THOMPSON,

Circuit Judges.

THOMPSON, Circuit Judge.

Between 2015 and 2017, Lieutenant Daniel Griffin

and Sergeant William Robertson of the Massachusetts

State Police (“MSP”) clocked hundreds of hours of

overtime to the tune of practically $100,000. (And that’s

not counting the troopers they supervised.)

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The problem? A lot of that time, they weren’t

actually working. Instead, they routinely showed up

late or cut out early yet still charged for the whole

shift. They also began overtime-specific tasks during

their normal work hours but still billed like they had

worked a separate overtime shift later in the day, an

impermissible form of double-dipping. And they

regularly encouraged their subordinates to do all that,

too.

The Feds were none too pleased once they caught

wind of this scheme, because the money that these

troopers (and their supervisees) stole came from federal

grants funding overtime hours for law enforcement

initiatives to promote highway safety. (Think DUI

checkpoints and “Click-It-Or-Ticket” programs.) So

Robertson and Griffin were charged with a host of

fraud-based federal crimes.

After an extended trial featuring more than

twenty testifying witnesses, a jury convicted the duo

of all the charges: wire fraud, theft of federal funds,

and conspiracy to commit the latter. (And on the brink

of trial, Griffin separately pled guilty to a set of tax

falsification charges and some unrelated wire fraud

charges.) The district court then sentenced Robertson and Griffin to some time behind bars, and it

ordered each defendant to fork over what they made

during the scheme (and some more) via substantial

restitution and forfeiture orders.

On this omnibus appeal, the pair protests the

propriety of the prior proceedings practically soup-tonuts. Mostly, we affirm, though with a bit of disquietude

about the district court’s tone during Robertson’s

sentencing (more on that later). But we vacate and

remand one narrow issue: the forfeiture order against

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Griffin. Read on as we explain what led to this megaappeal. We’ll start with Griffin and Robertson’s time

with the MSP, their fraud(s), the investigation, and

the proceedings below.

HOW WE GOT HERE

A. The Defendants

We kick things off with a bit about our defendants’

histories, both personal and professional.! A Massachusetts native with a blue-collar upbringing and a

college education, Griffin joined the MSP in 1986 at

age 23. In 2011, he was promoted to Lieutenant, a

rank he held until his retirement in 2020. And from

2011 to 2019, he led MSP’s Traffic Programs Section

(“TPS”), the division whose conduct gave rise to this

case. (More on TPS shortly.) While at MSP, Griffin

also founded a private security company. (More on

that company shortly, too.)

1 To start our recitation of the facts, we note a wrinkle complicating

our presentation of the record. One of Robertson’s claims is a

challenge to the sufficiency of the evidence, and “we typically

recite those facts relevant to sufficiency claims” in “the light most

favorable to the verdict.” United States v. Burgos-Montes, 786

F.3d 92, 99 (1st Cir. 2015). But that’s not the only challenge here,

and for others (like the constitutional challenge or the facts

underlaying the application of a sentencing enhancement), we're

instead supposed to take a more “balanced” treatment where we

“objectively view the evidence of record.” Jd. (cleaned up). Yet we

can’t “simultaneously recite the facts in both manners,” so we'll

instead “limit our initial summary of this lengthy record to those

details essential to framing the issues on appeal.” Jd. Further

complicating this is (1) that the district court is afforded some

discretion in factfinding for sentencing purposes and (2) that

some facts relate not to the trial but to Griffin’s guilty plea. But

we'll get more into each later.

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Robertson, also a Massachusetts native, joined

the force in 1986 (the same year as Griffin) at age 26.

He served for thirty-two years, and throughout that

long tenure (all as a Massachusetts State Trooper), he

earned several awards for his service and departed at

the rank of Sergeant. And while those accolades are

surely commendable, they aren’t why we write. Instead,

relevant to this appeal, Robertson joined TPS as a

Sergeant in 2008 and got involved with its doings (both

good and not so good) until he was transferred in 2018.

So, what is TPS? It’s a small division (usually

around five troopers at a time) that seems best understood in large part as a federal/state administrative

go-between: it receives hundreds of thousands of dollars

in grants from the U.S. Department of Transportation,

and then it oversees the distribution of those grants

into funding for traffic safety initiatives throughout

the Commonwealth.? The TPS’s leader (at the time

relevant here, Griffin) is also responsible for applying

for grants to fund these programs. Along with all those

administrative responsibilities, TPS also directly operates some programs itself.

That last point is what really matters for our

purposes. The trial focused closely on Griffin and Robertson’s overtime fraud related to two buckets of federally

funded traffic safety programs that TPS directly imple-

2 We'd be wrong to say TPS is the only go-between. So too is the

Executive Office of Public Safety and Security, another branch of

Massachusetts’s government that also works with the federal

government to secure money and, for at least some of these

grants, was the direct source of the money. But we'll spare the

reader from more details of this seemingly endless bureaucratic

labyrinth unless they’re legally material here (or otherwise

absolutely necessary).

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mented: sobriety checkpoints and safety initiatives

(like “Click-It-Or-Ticket”). So that’s where we next

turn.

B. The Scheme

We'll start with the sobriety checkpoints and how

they were supposed to be operated. On Friday and

Saturday nights, troopers could sign up to work eighthour shifts at BAT (short for “breath alcohol testing”)

checkpoints on highways. Much of that time would be

spent in the “BAT Mobile,” a camper parked by a

sobriety checkpoint and manned by troopers where

identified drunk drivers would be processed and held

until they could get escorted to jail.3

The eight-hour shifts were often geared towards

evening surveillance, with a start time of 8:00 p.m.

and running until 4:00 a.m. It was generally understood

that because the overtime was governed by federal

rules and interdepartmental service agreements (or

“TSAs”), troopers were obligated to work the full

eight-hour shift in order to be paid for the full shift.4

3 We assume that the name of the “BAT Mobile” finds its origins

in the famous vehicle of the same name owned by the Caped

Crusader and Dark Knight himself: the DC Comics superhero

“Batman.” We'll note that corrupt coppers also play an important

part in Christopher Nolan’s The Dark Knight (2008), but

thankfully, the inappropriate conduct of the MSP troopers in this

case doesn’t come close to matching the deep-rooted corruption

and greed in the Gotham Police Department on display throughout

the legendary film.

4 For instance, one ISA required that personnel “paid under this

grant must actively participate in the enforcement effort.”

According to one government official, it was expected that

reported overtime hours “would be accurate for actual hours

worked.”

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(That’s apparently unlike other MSP-governed shifts,

which aren’t as stringent in their billing practices.)

The Griffin-Robertson fraudulent twist on these?

For one, the TPS trooper team members often wouldn’t

report to the barracks (where they’d load up onto the

BAT Mobile) until 10:00 p.m., despite the billing clock

starting at 8:00 p.m. Griffin, on at least one instance,

arrived at 11:30 p.m. And the troopers often would wrap

up and go home at 1:00 or 1:30 a.m., but, at Griffin’s

direction, would still bill as if they worked until 4:00

a.m. to get their “full time” pay. Troopers testified to

knowing it was wrong but still doing it anyway-—relying

on Griffin’s orders.

Along with sobriety checkpoints were a hodgepodge

of other federally funded road safety initiatives, our

second bucket. These initiatives paid for shifts where

troopers would conduct traffic stops specifically for

unbelted drivers (to encourage seatbelt use) and those

glued to their phone or otherwise inattentive at the

wheel (to discourage distracted driving). Troopers

could sign up to do four-hour blocks on these shifts,

but importantly, they couldn’t “pyramid” their shifts,

meaning they couldn’t charge time for federally funded

initiatives while they were still on the clock for their

normal MSP work hours. Ordinarily, a federally funded

traffic shift would start at 3:30 p.m., after the regular

TPS workday (which ran from 7:00 a.m. to 3:30 p.m.)

ended.

The Griffin/Robertson nefarious spin on these is

a bit more nuanced. For one, the TPS troopers would

indeed “pyramid” shifts, and thus improperly double

dip. (And we know that they pyramided because the

troopers, on at least once instance, issued a grantrelated safety ticket at 3:25 p.m., despite their regular

App.7a

TPS hours running until 3:30 p.m.) For another, after

the officers would write eight or nine tickets at the

first location that they posted up at, Griffin would give

them a signal over the radio: “Let’s move to another

location.” But that other location wasn’t really a cue

to move to a new spot on the interstate; it was his code

to his team to pack it up and go home. Griffin (as the

officer-in-charge of TPS) would then approve for a full

four hours’ worth of labor, despite only an hour or two

actually worked. In one trooper’s recollection, TPS

“never” worked the full shift, and the troopers knew it

was wrong the whole time.

This went on for years under the radar and

without notice. But there is one noteworthy episode to

mention here that, as you will learn, crucially factors

into the scheme’s unraveling. One day at the barracks

in 2017, apparently nervous about the discovery of

similar overtime fraud in other MSP sections, Robertson

approached Trooper Dennis Kelley, a lower-ranking

TPS member.® Robertson smacked a folder in Kelley’s

chest and told Kelley to “get rid of these.” Robertson then

got in Kelley’s face and said, “Shred these fucking

things. Go shred them.” Kelley did, and as the files

were going into the shredder, he noticed that they were

“637s,” an important billing form. Once he realized

what was happening-that he was destroying TPS documents that by federal rule should have been preserved-

5 Details of the fraud investigation that caused Robertson’s

outburst are thin in Kelley’s testimony. And throughout the trial,

discussion of fraud in other units was skirted around,

presumably so as to avoid prejudicing the defendants too much.

But as the reader will later learn in our discussion of sentencing

disparities, Robertson and Griffin certainly aren’t the only two

MSP troopers with overtime fraud convictions these days.

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he expressed his dismay to Robertson. But Robertson

at that point didn’t care: the deed was done.®

C. The Investigation

By now, the thoughtful reader might be wondering

how, exactly, someone figured out that Griffin, Robertson, and their small squad were skimming off the top

of these programs. If everyone in TPS was in on it and

the files were destroyed, who would ever know?

The answer: we can point to and commend a

scrupulous federal agent working for the Department

of Transportation’s Office of the Inspector General.

One day, Agent Tayna Chavez noticed oddities in TPS’s

billing while investigating potential fraud in other

MSP units. Thinking it strange that the same troopers

were working the same number of hours at the same

time, week after week (after week), Agent Chavez

started to piece together some more information about

their activities.

Some serious sleuthing ensued. Agent Chavez

pulled together the following records:

6 Later on, Kelley learned that higher-ups (higher than Griffin

and Robertson) were sniffing around and looking for important

TPS billing forms. Kelley then “got scared” and “did the stupidest

thing” he had “ever done.” He took home the rest of the files and

burned them because he was “afraid” that the MSP higher-ups

“were going to find out” that he destroyed other files at Robertson’s direction. In his words, all of those files “would have showed

everything that we had done there with the times and the hours

and everything.” Although Kelley didn’t say that Robertson told

him to do it, Kelley called Robertson to tell him that the files were

destroyed; to that news, Robertson simply remarked “Good.”

App.9a

e “Paystation” data, to see what hours the

troopers were reporting and what the officers

were approving;

e additional paperwork (dubbed “636,” “637,”

and “638” forms) to accomplish those same

ends;

e fuel records, to figure out how far, when, and

in which cars the troopers drove;

e cruiser “radio affiliation” data, to discern when

the troopers were turning their cars on and

off, and to see when the cars’ radios were

pinging certain radio towers to triangulate

their location; and

e citations that the troopers issued during their

shifts, to see what patterns, if any, were

discernable from their ticketing practices.

From all that, Agent Chavez and her DOT compatriots

knew something was way off. So, after postulating from

the data that TPS must have been short-shrifting the

shifts, they ran the numbers to figure out the estimated

loss arising from the inside dealing. And they ultimately

attributed hundreds of “loss hours” (time charged but

not worked) to the troopers for each year between

2015 and 2017.

D. The Side Hustles

Well digress here for a minute to talk about what

other info happened to surface during the investigation. All of the above exposition related to Griffin

and Robertson’s shared TPS skullduggery, but as it

turned out, Griffin simultaneously had his own separate

unholy schemes on the side. And because the reader

will want to know about that by the time we start

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discussing the indictment (coming soon), we'll explain

it now.

Recall that we earlier mentioned how Griffin also

ran a private security business. It was called Knight

Protection Services, or “KNIGHTPRO.” Back in the

1990s, MSP permitted him to run KNIGHTPRO (which

focused on private security details for college events

as well as art transportation), but it came with an

important caveat: he couldn’t let it conflict with his

MSP work hours or responsibilities.

Well, it did. The first conflict for this officer of the

law was straight-up tax fraud: from 2012 to 2019,

KNIGHTPRO records showed about $1.9 million in

revenue deposits, but Griffin only reported $1.2 million

to the IRS-the point being that he hid over $700,000

of income from the IRS during that period. And that’s

especially alarming given that he held KNIGHTPRO

out to the IRS as a money-pit almost every year. But

that false reporting wasn’t all. Between 2014 and

2019, Griffin also siphoned off tens of thousands of

dollars in KNIGHTPRO money to pay for a country

club membership, home improvements for his Cape

Cod property, and other personal expenses, while, for

tax purposes, writing off those same remittances as

business expenses.

And that leads to Griffin’s second conflict, this

one specifically MSP-themed. Several times from 2015

through 2017, Griffin used his KNIGHTPRO credit

card to pay for MSP-related training and travel.

Afterward, he wrote off those KNIGHTPRO charges

as business expenses (again, for tax purposes) but also

applied for and collected personal reimbursement from

MSP’s federal grant money for those same outlays. (If

it isn’t obvious, that kind of double-dipping isn’t cool.)

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All told, the IRS figured out that Griffin was

about $186,389.00 short on his tax payment obligations

through the years. But the IRS and MSP weren’t the

only ones that Griffin pulled a fast-one on. Starting in

2013, he began telling his children’s private school for

boys, the Belmont Hill School (“BHS”), that he was

making less money than he did. The reason? So he could

benefit from the school’s financial aid program.’ Over

seven years, his family obtained $176,700 in financial

aid from BHS. (As we'll later discuss, it’s an open

question how much of that, exactly, stems from

Griffin’s fraud.)

E. The Proceedings Below

All that fraud naturally spawned a court case.

And that case started in 2020, when the government

obtained an indictment against Griffin and Robertson

charging the following:

e one count of conspiracy to commit theft

concerning programs receiving federal funds,

in violation of 18 U.S.C. § 371;

e one count of theft concerning programs

receiving federal funds, in violation of 18

U.S.C. § 666(a)(1)(A); and

7 Tf the reader will indulge us, we’ll share a vignette from the

record. At one point, the Griffins were awarded too much

financial aid when their application was confused with that of

another family. They wrote to the school to let it know about the

mix-up. In response, the school sent an official letter correcting

the amount. And on the letter, the school’s financial aid director

added a hand-written note to Griffin in large print: “Again, I can’t

thank you enough for your honesty!” In hindsight, those thanks

may have been a bit premature.

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e four counts of wire fraud, in violation of 18

U.S.C. § 1848.

These charges all related to the overtime fraud scheme.

Separately, the indictment charged Griffin with four

additional counts of wire fraud relating to the BHS

financial aid applications and ten counts of filing false

tax returns related to KNIGHTPRO’s cooked books.8

Unremarkable pretrial proceedings went on for

nearly three years, teeing up the case for trial.

Before opening arguments, Griffin opted to fess

up to the BHS wire fraud and KNIGHTPRO tax

return counts (and thus pled guilty to them). Then a

jury trial commenced to thrash out the remaining

counts. We’ll recount a bit more of what happened at

the trial later on, but for now, we'll note that the

defendants thrice moved for judgments of acquittal (at

appropriate times) and the district court thrice denied

them. Following eleven days of trial where it heard

from 25 witnesses, the jury returned a guilty verdict

against both defendants on all counts on the twelfth

day of the saga.

In due course, the district court sentenced each

defendant separately. We'll start with Griffin. The

court calculated Griffin’s United States Sentencing

Guidelines (“U.S.S.G” or “Guidelines”) offense level at

8 The careful reader might be wondering where the MSP

underlings are in all this. Most of the ordinary troopers involved

in TPS took immunity deals with the government to avoid

prosecution, and they testified against Griffin and Robertson in

exchange for getting off the prosecutorial hook. (We say “most”

because we couldn’t track down what happened with Trooper

Pete Morawiak, who Trooper John Jakobowski testified was in

the unit while the fraud happened.)

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25, and his criminal history as Level 1. (We'll get to

the math later.) That combination resulted in a

Guidelines Sentencing Range of 57 to 71 months, and

the court sentenced Griffin to 60 months’ imprisonment

and three years of supervised release. Along with that,

he owed a special assessment of $2,100, restitution of

$329,163.77 (with $142,774.77 going to the DOT and

$186,389.00 to the IRS), and forfeiture of $239,796.75

(the bulk of it related to the BHS financial aid).

Next came Robertson. As to the Guidelines, the

court calculated Robertson’s offense level at 21 and his

criminal history as Level 1. (Again, the math will

come later.) That pairing resulted in a Guidelines

sentencing range of 37 to 46 months, and the court

sentenced Robertson to 36 months’ imprisonment and

three years of supervised release. Along with that, he

owed a $600 special assessment, restitution to the

DOT totaling $142,774.77 (the same figure as Griffin,

because the judge found them jointly and severally

liable), and forfeiture of $32,180.50.

Each timely filed a notice of appeal challenging a

litany of issues related to these proceedings. And here

we are.

OUR TWO CENTS

With all that history squared away, we'll turn to

the appellants’ arguments. In doing so, we note that

because their claims necessitate that we deploy a few

different standards of review as we undertake our

appellate task, we'll infuse those standards along the

way as necessary for our various discussions. We start

then with the appellants’ joint constitutional challenge

to the statutes undergirding their convictions before

moving into each trooper’s individual protestations.

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Because there’s a lot to cover, we implore the reader

to buckle up for a long, winding ride.

A. Combined Constitutional Challenge

First, Griffin and Robertson jointly attack the

constitutionality of their conviction. They argue that

neither had fair notice that billing in four-and eighthour blocks (rather than hour-by-hour) was fraud

under the wire fraud and federal program theft fraud

statutes; in their view, that lack of notice makes those

statutes unconstitutionally vague as applied to them.

In their briefing they walk through the gamut of MSP

customs and practices that, by their lights, purportedly

justified their billing methodology.

But we don’t need to tarry long over this argument

because, as the government correctly points out, the

pair lost their chance to pursue this constitutional

claim by raising it too late. Here’s why.

When the indictment issued back in 2020, neither

defendant moved expeditiously to dismiss it based on

these alleged constitutionally inadequate notice defects.

Then, as usually transpires with the district court’s

trial management responsibilities, the parties were

ordered to submit any pre-trial filings by November

20, 2023. Well, that day came and went, but again,

neither defendant moved pre-trial to dismiss the

charges on constitutional grounds. Instead, those

challenges didn’t surface until mid-trial at the close of

the government’s case.

According to the government, Federal Rule of

Criminal Procedure 12(b)(8) tells us how to think about

this one. Conveniently titled “Motions That Must Be

Made Before Trial,” the rule explains (perhaps rather

obviously) that arguments falling under this rule

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“must be raised by pretrial motion if the basis for the

motion is then reasonably available and the motion

can be determined without a trial on the merits.” Fed.

R. Crim. P. 12(b)(3). That said, the law isn’t so rigid

that there are no exceptions. Elsewhere in the Rule is

a fail-safe provision: an untimely Rule 12(b)(8) filing

can be excused if the party can show “good cause” for

the delay. Fed R. Crim. P. 12(c)(8).

So we first ask, does Griffin and Robertson’s vagueness argument fall within the purview of Rule 12(b)(3)?

There are some reasons to think that it does, though

the First Circuit has not had occasion to squarely

address the appellants’ particular challenge. See United

States v. Seuss, 474 F.2d 385, 387 n.2 (1st Cir. 1973)

(explaining that an unconstitutional vagueness claim

constitutes a “defense of failure of an indictment to

charge an offense” under an older version of Rule 12).

As we've past noted, two other circuits have found Rule

12(b)(8) to encompass constitutional (but not jurisdictional) attacks. See United States v. Cardona, 88 F.4th

69, 77 n.6 (1st Cir. 2023) (citing United States v.

Mullet, 822 F.3d 842, 847-48 (6th Cir. 2016); United

States v. Herrera, 51 F.4th 1226, 1282-85 (10th Cir.

2022)). Also, we’ve considered an as-applied Second

Amendment challenge (another constitutional-butnot-jurisdictional assault on a prosecution) as falling

within Rule 12(b)(8)’s sweep, though without much

resistance. United States v. Turner, 124 F.4th 69, 77

(1st Cir. 2024) (“Turner also does not claim that an asapplied Second Amendment argument for dismissal of

a count of an indictment falls outside of Rule 12(b)(3)’s

scope.”). But we need not resolve the question

definitively today given that neither Robertson (in his

reply brief) nor Griffin (who chose not to file a reply

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brief) contested the government’s position, expressly

raised in its appellee brief, that Rule 12(b)(8) applies

to their argument. See Cardona, 88 F.4th at 77-78

(“Cardona does not dispute that Rule 12(b)(8) applies

to his vagueness claim, and so we assume that his

motion is covered by that provision.” (collecting cases));

Turner, 124 F.4th at 77.

So now we turn to the “good cause” analysis and

dispose of it with some dispatch: Robertson and

Griffin have offered us no cause, let alone a good one,

for not raising their constitutional claim earlier.

Because we assume that Rule 12(b)(8) covers the

appellants’ claim but they failed to show good cause

for not raising the argument in a pre-trial motion, “the

consequence is that the matter is waived on appeal.”

Turner, 124 F.4th at 77. And the stakes are unusually

high here, because a lack of good cause also means

that there’s no plain error review, either. See, e.g.,

Cardona, 88 F.4th at 75 (“Where a defendant does not

show good cause to consider an unpreserved Rule

12(b)(8) argument on appeal, he is not entitled to plain

error review.” (cleaned up)); United States v. Reyes, 24

F.4th 1, 16 n.8 (1st Cir. 2022) (same). Therefore, consistent with our case law, we soldier on. See Turner,

124 F.4th at 78; Cardona, 88 F.4th at 78.

B. Robertson’s Remonstrances

Seeing no error on the constitutional front, we’ll—

to quote Griffin—“move to another location” in this

combined appeal and turn to the defendants’ individual

remonstrations.

We start with Robertson, whose grievances are best

split into four groups. We'll take them in the following

order: first the sufficiency of the evidence, then the

App.17a

Guidelines calculation, next the sentencing disparity,

and finally the restitution. The bottom line? We don’t

see errors in any.

i. Proving the Case (Sufficiency of the

Evidence)

Now on his own, Robertson contends that there

wasn’t enough evidence to convict him on any count.

Properly preserved sufficiency challenges (like this

one) are reviewed de novo. United States v. Reyes-

Ballista, 146 F.4th 100, 108 (1st Cir. 2025). So we'll first

look at the evidence, “both direct and circumstantial,

in the light most favorable to the prosecution,” and then

“decide whether that evidence, including all plausible

inferences drawn therefrom, would allow a rational

factfinder to conclude beyond a reasonable doubt that

the defendant committed the charged crime.” Id. at

109 (quoting United States v. Martinez-Mercado, 132

F.4th 61, 72 (1st Cir. 2025)).

Robertson launches his attack on his conviction

from two different beachheads. The first relates to the

sufficiency of the evidence as to all counts whereas the

second addresses the evidentiary sufficiency of Counts

3 and 4 only.

a. Robertson’s Intent to Steal or Defraud

On front one, Robertson opens by contending that

the government failed to prove his intent to steal or

defraud, an essential element of each of the six counts

he was convicted for. In doing so, he incorporates the

facts undergirding the waived constitutional attackfacts about the longstanding billing practices and customs at MSP, as well as regulations, guidelines, and

mores about time-keeping protocols (and sometimes a

App.18a

lack thereof)-to show how he acted in good faith. And

he points the finger at Griffin, his superior officer,

saying that he (meaning Robertson) was just following

his (meaning Griffin’s) lead.

In response to Robertson’s first point, the government says there was evidence aplenty to support the jury's

verdict. Witness testimony and documentary evidence

were introduced to show that Robertson knew that his

submission of hours violated applicable rules and that

he acted with fraudulent intent in getting paid for

hours he didn’t spend working. The government also

points out Robertson’s presence during an interview

(back in 2012) wherein Griffin admitted that he knew

over-billing was illegal. And, of course, the government

mentions that Robertson ordered a subordinate to

shred folders containing damning information implicating the fraudulent billing practices; that evidence,

urges the government, powerfully shows that he knew

he was doing something wrong.

We start our analysis with a well-worn principle

we often repeat—sufficiency challenges are an “uphill

battle” for defendants. See United States v. Pena-

Santo, 809 F.3d 686, 696 (1st Cir. 2015); United States

v. Lipscomb, 5389 F.3d 32, 40 (1st Cir. 2008); United

States v. O’Shea, 426 F.3d 475, 479 (1st Cir. 2005). As

we explained more fully above, “reversal 1s warranted

only if we find that no levelheaded jury could have

found” Robertson guilty. Reyes-Ballista, 146 F.4th at

109 (cleaned up).

No one contests that intent to steal or defraud, in

one form or another, is, as Robertson contends, relevant

to each of the counts of his conviction: theft of federal

funds, conspiracy of the same, and wire fraud. So we

ask ourselves: what, exactly, did the government need

App.19a

to produce to prove intent? In the district court’s

formulation (which we'll use, because Robertson uses

it too and he isn’t challenging the jury instructions),

the conspiracy charge required the government to put

forth evidence to prove that Robertson “willfully

joined in” the “agreement specified in the indictment,

namely to steal, embezzle, [or] obtain by fraud” the

money that he wasn’t entitled to. The theft count

similarly required the government to advance evidence

showing that Robertson “embezzled, stole, obtained

by fraud, knowingly converted, or intentionally

misapplied property” (here, money) under the “care,

custody, and control” of the MSP. And the wire fraud

counts likewise required the government to factually

prove that Robertson “knowingly and_ willfully

participated in the scheme with intent to defraud.”

In surveying the record in the light most favorable

to the prosecution, we see plenty of evidence of Robertson’s intent to do all that. Most obvious is the trial

testimony of several TPS troopers who worked alongside

Robertson and under his command; they said, over

and over again, that they knew what they did was

wrong but that they did it anyway. From their admissions, the jury could reasonably infer that Robertson,

given his superior perch on the food chain, and his

personal participation in filling out misleading billing

forms and ordering the destruction of records, had the

very same intent to steal.

The jurors also heard about codewords (like “let’s

move to another location”) that Griffin would utilize

to dismiss the troopers early. The words’ cloaked

meaning was understood by all involved in the scheme,

including Robertson, and the codewords were necessary

because (1) other troopers from different troops were

App.20a

on the same radio frequencies and (2) the TPS squad

didn’t want them to know that TPS was leaving. The

jury could appreciate that such codewords would not

have been needed if what the TPS team was doing was

copacetic.

And the jury heard testimony from other troopers

and MSP leaders (including some who were not

involved in the events of the case) stating how it was

clear that the TPS’s billing practices (i.e., working

three or four hours of an eight-hour shift but charging

for the whole thing anyway) were inappropriate for

federally funded programs. No matter what might

have been permitted in unrelated MSP duties, the

jury heard from Lieutenant Eric Bernstein (who now

has Griffin’s job as head of TPS) that it was “written

into the ISA, in the grant” that “troopers were not

going to get paid” for the full shift “if they went home

early.” To underscore the point, the jury heard from

Trooper Dennis Kelley (reading from an email chain

between other troopers) that “when federal money is

involved, we must cross all Ts and dot all Is.”

All that could lead to the reasonable inference on

the jury’s part that Robertson, a sergeant, knew that

he wasn’t acting above-board in his billing practices

(our shorthand for intent across these three separate

crimes of conviction).

And if that wasn’t enough, the jury heard about

Robertson’s orders to Kelley to axe the paperwork. For

us, that incriminatory directive practically seals the

deal for our de novo review. If Robertson didn’t know

he was stealing or defrauding, specifically after

investigations into related MSP branches, why else

would he order the files (files that contained the

information that could lead an investigator to uncover

App.21a

the fraud) shredded? And that this destruction order

happened after much of the charged conduct had

occurred is, in our view and despite Robertson’s

argument to the contrary, of no matter, because it’s

well-established that “later events often may shed

light on earlier motivations.” United States v. Rodriguez,

858 F.2d 809, 816 (1st Cir. 1988).

Robertson whistles past the graveyard with his

alternative arguments. For one, that Robertson was

“just following orders” from Griffin—what we’ll refer to

as his “Nuremberg defense’~doesn’t negate the

illegality of the acts on these facts; the testimony of

his subordinates showed that they all (including Robertson) knew that it was wrong and that they were stealing.

On this record, it would not, as Robertson suggests, be

a reasonable inference to conclude that he would be

more ignorant of the fraudulent scheme than the

troopers he helped supervise to carry it out.

For another, we don’t buy Robertson’s defense,

presented to but rejected by the jury, that because of

longstanding MSP practices and protocols, his conduct

was okay on paper. It’s not our place to usurp the

jury's role in crediting the live testimony of troopers

testifying about intent saying that they knew what

they did was wrong, over the pile of documents that

Robertson threw at the jury to combat that point—

including the collective bargaining agreement, division

commander orders, ISAs, and others. See United States

v. Vazquez Rijos, 119 F.4th 94, 102 (1st Cir. 2024)

(explaining that “we cannot reweigh witness credibility

on a sufficiency challenge”). And again, Robertson’s

order to Kelley to shred the incriminating documents

shows further why his I-was-just-following-ordersand-doing-everything-by-the-books defense fails. If he

App.22a

thought he was following regular MSP department

orders, why would he have needed to give Kelley such

a blatantly questionable directive?

We address one last point before we steer clear of

Robertson’s sufficiency argument. Robertson contends

that because he didn’t break any internal rules, the

convictions can’t stand. There are two reasons why we

don’t make much of this. First, we don’t think his

characterization of the evidence is an accurate description of the record. Again, the jury heard testimony

from leaders in the MSP discussing how, under both

ISAs and the collective bargaining agreements, work

on federally funded grants couldn’t happen at the

same time as regular shift work. That pyramiding was

plainly verboten, but Robertson and his compatriots

did it anyway. The jury also heard how certifying false

hours ran afoul of the Paystation requirement that

hours be truthful. And the jury heard it was necessary

to keep forms for a certain period; from that, it could

readily infer that destroying them (as Robertson ordered

Kelley to do) seemed to run afoul of the formal

requirement that grant-related documents be retained

for a period of six years.

Second, whether Robertson did or did not violate

any internal rules is beside the point: that is “not the

basis for his criminal liability.” United States v.

Ransom, 642 F.3d 1285, 1291 (10th Cir. 2011). Robertson is “criminally liable because there was sufficient

evidence for a rational jury to convict him on each

element of the charged crimes,” including his intent to

defraud the government and steal something of value.

Id. at 1291. Those regulations “helped establish underlying facts necessary to prove the crimes,” but they

App.23a

weren't what he was on trial for. Id. at 1292. So we

don’t buy this one on the facts or the law.

All that’s to say: we see no reason to vacate based

on a purported dearth of evidence of Robertson’s intent.

Sufficient evidence supports the jury’s verdict.

b. Robertson’s Liability for Griffin’s

Fraud

Recall that we mentioned how Robertson attacked

his convictions from two separate beachheads. Now

we'll relocate to beachhead two, a position from which

he attempts to launch a more targeted advance. Robertson offers an alternative attack on why he should not

have been convicted for wire fraud under Counts 3

and 4. He asserts that because those counts only

relate to money deposited into Griffin’s bank account,

he has no criminal culpability for this conduct. And

while (at least in Robertson’s view) the government

relied on an “aiding and abetting” theory to hold Robertson accountable for Griffin’s particular wire fraud,

Robertson protests that he didn’t aid or abet Griffin’s

fraud because he didn’t do anything to facilitate

fraudulent payments to Griffin.?

The government retorts that Robertson misapprehends what’s needed for a wire fraud conviction.

Notwithstanding his aiding-and-abetting disclaimers,

2 Robertson also argues that, because the government leaned on

an “aiding and abetting” theory of conviction but its evidence

didn’t line up with the elements of an aiding and abetting

conviction, the claim fails. More specifically, Robertson hangs his

hat on the “affirmative act to help or cause the charged crime”

prong, arguing that he took no affirmative acts to aid Griffin’s

fraud. But for reasons we'll discuss, we decline to get into that

one today.

App.24a

Robertson’s individual contributions to the broader

“Griffin-Robertson TPS Overtime Fraud Scheme” were

sufficient to convict him even under counts concerning

Griffin’s fraud. And as for Robertson’s aiding-and-abetting avoidance argument, it flops (in the government’s

view) because the overtime fraud scheme was a bona

fide group project—its success for one member depended

on the support of all participating members.

We think the government’s right on this one, too.

To prove wire fraud related to Griffin’s procurement of

payments on false pretenses, the government needed to

show Robertson’s “knowing and willful participation in

a scheme to defraud and the use of interstate wires to

further that scheme.” United States v. Tum, 707 F.3d

68, 72 (1st Cir. 2013). But the government doesn’t

need to show that Robertson “personally used the

wires” that got Griffin the money—just “that such use

was a reasonably foreseeable part of the scheme in

which he participated.” Jd. (cleaned up); see also United

States v. Fermin Castillo, 829 F.2d 1194, 1198-99 (1st

Cir. 1987) (explaining that “[w]hether or not the

appellant had foreknowledge of the precise series of

[electronic communications] .. . is beside the point,” and

stressing that “[a]s long as some use of [wires] in the

course of the endeavor was reasonably to be anticipated,

the causation requirement is met”).

Based on the record, the jury could reasonably infer

that payments to Griffin were a “reasonably foreseeable

part of the scheme” that Robertson participated in.

Tum, 707 F.3d at 72 (cleaned up). Testimony of troopers

showed that Robertson and Griffin (along with their

handful of uncharged compatriots) jointly cut corners

on their overtime duties and on their timesheets. Part

of the scheme required each trooper’s individual

App.25a

submission of false statements through Paystation.

And because Robertson submitted false hours on Paystation at Griffin’s instruction, the jury could find that

Robertson knew how Griffin, in order to be paid for his

fraudulent hours, also procured the money relevant to

wire fraud Counts 3 and 4—via Paystation submissions

containing false hours. So Robertson and Griffin used

the same means to submit the same false hours from

the same shifts as part of the same scheme; Griffin’s

submissions are thus a “reasonably foreseeable” part

of the scheme “in which [Robertson] participated.” Id.

at 72 (cleaned up). That’s sufficient to sustain Robertson’s convictions under Counts 3 and 4, especially

given that Robertson didn’t need to handle the wires

that moved the money into Griffin’s account.

Again, Robertson’s arguments to the contrary fail

to persuade. For one, that Robertson didn’t enter or

approve Griffin’s false overtime in Paystation is irrelevant, because, as we've explained, Griffin’s fraudulent

use of the wires was still a reasonably foreseeable part of

their joint scheme, and that’s all that’s needed. Id. at 72.

For another, Robertson’s handwringing about the

expansion of liability is misplaced. He frets that

“every MSP employee who submitted inaccurate Paystation entries would be jointly and severally liable for

every payment made to every other MSP employee

engaging in the same behavior.” But Robertson’s liability

for Counts 3 and 4 arises not just from Griffin’s use of

the same means of Paystation but also from their joint

participation in the specific TPS scheme. See id. at 72

(noting the necessary connection to “the scheme in

which he participated” (cleaned up)). As to the broader

liability concern which he contends “would unfairly

distend the concept of ‘foreseeability’ beyond recog-

App.26a

nition”: hypothetically, the handful of TPS troopers from

2015 to 2017 might have all been on the hook for each

other’s wire fraud, because they were all in on the

same scheme, but that wouldn’t extend out to every

MSP trooper who may have submitted false information

more generally in that timeframe just because all of

them used Paystation. Only the TPS troopers who

worked in concert to further the particular scheme of

relevance here would be foreseeably liable. After all,

the jury was instructed that one way to find Robertson

guilty was by finding that he “personally committed

or participated in the particular offense charged,” and,

for the reasons explained above, the record supports

the jury’s conclusion that Robertson participated in

that offense. See United States v. Pena, 24 F.4th 46, 74

(1st Cir. 2022) (“When a jury returns a general guilty

verdict on a sole count .. . insufficiency of the evidence

as to the other theory of guilt will not undermine the

conviction.”).

So, in sum, because (1) Robertson participated in

the scheme that led to Griffin’s wire fraud convictions

and (2) the payments to Griffin were a “reasonably

foreseeable” part of their joint scheme, we see no

issues with Robertson’s conviction on these counts

premised upon the arguments he advances before us.

And because we find this theory of conviction supportable, we don’t need to reach the alternative aidingand-abetting argument that Robertson proffers. So his

convictions will stand and we motor along to the

sentencing challenges.

ii. Calculating the Guidelines

Next, Robertson asserts that the district court

made three mistakes in calculating his Guidelines

App.27a

range.19 First, the district court failed to apply the

“zero-point offender” reduction to his total offense

level. Second, it erred in applying the “leadership role”

enhancement. Third, it inappropriately applied the

“abuse of trust” enhancement.

We'll take these in turn, reviewing “the sentencing

court’s interpretation and application of the Sentencing

Guidelines de novo, its factfinding for clear error, and

its exercise of judgment for abuse of discretion.”

United States v. Guia-Sendeme, 134 F.4th 611, 616

(1st Cir. 2025). But to headline our conclusion, we

again see no reversible error.

a. Zero-Point Offender Reduction

Robertson opens his assault on his sentence by

arguing that the district court erred in denying him

what’s called the “zero-point offender reduction.” In

essence, this is a two-level Guidelines reduction

available if a defendant meets a host of circumstances

related largely to their personal history and the

gravity of their crime. See generally U.S.S.G. § 4C1.1(a).

So the result of the court denying Robertson that

10 Here’s the quick math on the Guidelines calculation. Robertson’s base offense level was 7. The district court added 8 levels

because the “loss” (a complex term that we'll have more on later)

from his fraud was between $95,000 and $150,000. It added

another 2 levels because Robertson abused a position of public

trust. Then, it added 2 more levels because he was a leader of the

scheme. Finally, it added another 2 levels for willful obstruction

of justice. All told, the district court calculated Robertson’s total

offense level as 21 and his criminal history level as I. That

pairing led to a recommended sentencing range of 37 to 46

months.

App.28a

reduction was that Robertson’s Guidelines offense

level was two points higher than if it had applied.

More than usual, the procedural history undergirding this enhancement is important, so we'll start

there. Griffin and Robertson’s draft presentence reports

(or “PSRs”) each included the zero-point offender

reduction. When probation issued Robertson’s final

PSR, two weeks before Griffin’s sentencing, it reversed

course and found Robertson ineligible for the reduction.

Yet Griffin was first to be sentenced, and, at that

hearing, the government brought to the court’s attention

an intervening U.S. Supreme Court decision, Pulsifer

v. United States, 601 U.S. 124 (2024), which it said

changed the reduction’s applicability. While the government recognized that it had not protested Griffin

receiving the reduction and believed it had thus waived

its chance to object to it, it noted that it did plan to

press the issue at Robertson’s later-in-time sentencing.

And that’s exactly what it did. Then, when Robertson

faced sentencing, the district court-apparently in

implicit agreement with the government’s Pulsifer

take—declined to afford him the zero-point reduction.

Such is the alleged error that Robertson contends

requires reversal.

From the court’s declination, Robertson identifies

three flubs. First, the district court’s change of heart

violated the “law of the case” doctrine. Second, because

Robertson and Griffin were identically situated, an

unwarranted disparity arose from application of the

reduction to one but not the other. Third, the district

court incorrectly interpreted the text of the Guidelines

that were in effect at the time of the sentencing,

leading it to the misplaced denial of the reduction. The

government contests all three of those propositions.

App.29a

We'll jump straight to Robertson’s third argument,

because it’s the clearest to us, and then work backwards. We agree with the government that the district

court, based on its holding that Robertson earned a

leadership enhancement, correctly declined to apply

the zero-point offender reduction.

Let us say more. At the time of Robertson’s

sentencing, § 4C1.1(a) provided for a two-level reduction

if a long list of criteria were met.!1 Among them was

the condition that “the defendant did not receive an

adjustment under § 3B1.1 (Aggravating Role)” (what

we call colloquially the leadership enhancement) “and

was not engaged in a continuing criminal enterprise,

as defined in 21 U.S.C. § 848.” U.S.S.G. § 4C1.1 (a)(10)

(2023 version) (emphasis added).

Robertson argues that this language—its use of

“and’—created “conjunctive” disqualification requirements. That’s a fancy way of saying that the reduction

applied unless Robertson both received a leadership

enhancement and was involved in a continuing criminal

enterprise.!2 If only one requirement was met, he

remained eligible, because he didn’t receive an

adjustment AND participate in a continuing criminal

enterprise.

The government responds that the language

created two alternative disqualifiers: if there was

11 The reader will see in a moment why we emphasize the text

in effect when Robertson was sentenced. Still, everyone agrees

that what we’ve quoted above is the version of the Guidelines

that we should be interpreting.

12 Robertson contends also that he should never have received a

leadership enhancement, but we'll get to that argument

momentarily.

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