United States v. Bourget

United States Court of Appeals

For the First Circuit

No. 23-1582

UNITED STATES,

Appellee,

v.

SETH M. BOURGET,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

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

Before

Montecalvo, Lynch, and Kayatta,

Circuit Judges.

Benjamin Brooks, with whom Good Schneider Cormier Fried &

Brooks was on brief, for appellant.

Karen Eisenstadt, Assistant U.S. Attorney, with whom Joshua

S. Levy, U.S. Attorney, was on brief, for appellee.

August 21, 2026

MONTECALVO, Circuit Judge. Correctional Officer Seth

Bourget challenges his criminal conviction for deprivation of

rights under color of law in violation of 18 U.S.C. § 242, arguing

that the evidence admitted at trial was insufficient to support a

finding of guilt and raising several other issues for our review.

This appeal stems from an incident occurring on June 18,

2019, when correctional officers with the Bureau of Prisons ("BOP")

at the Federal Medical Center Devens ("FMC Devens") performed what

officers term a "forced cell move," where they use force to enter

a cell, secure the individual inside, and then move that individual

to another location. On that day, Bourget was part of the

five-person use-of-force team that executed a forced cell move on

KT,1 an inmate who was in a holding cell with his hands handcuffed

behind his back. Bourget, equipped with a large shield, was the

first officer to enter the holding cell. Bourget entered at full

speed and struck KT with the shield in the chin and face. As a

result, KT fell back, hit his head, and suffered serious injuries

to his head and face. The incident was captured on video, which

was played at trial.

Bourget initially faced two criminal charges of

deprivation of rights under federal law related to this incident.

He proceeded to a jury trial in federal court that resulted in an

1 Consistent with the record and the parties' briefing, we

refer to this individual by his initials.

- 2 -acquittal on one count; however, the jury was hung as to the other

count. Bourget was then retried on the remaining count, which

alleged that Bourget violated KT's Eighth Amendment rights by

striking KT with the shield with excessive force while KT was

handcuffed inside the holding cell. The second jury trial resulted

in a conviction; Bourget now challenges that conviction on appeal.

For reasons we will explain below, Bourget's challenges fail, and

we affirm the conviction.

I. Background

"We review the facts in the light most favorable to the

jury's guilty verdict." United States v. Lee, 790 F.3d 12, 13

(1st Cir. 2015). Here, we focus on the facts and procedural

history relevant to the legal issues raised, including video

evidence in the appellate record. See United States v. Howard, 66

F.4th 33, 37 n.1 (1st Cir. 2023); see also Bannon v. Godin, 99

F.4th 63, 69-70, 81 (1st Cir. 2024) (relying on footage from

traffic cameras and officer body-worn cameras).

A. The Incident

In December 2018, KT was incarcerated at FMC Devens,

where he was also provided mental health treatment. During his

time at FMC Devens, KT experienced delusions and auditory

hallucinations; in addition to being diagnosed with "unspecified

psychotic disorder," he was also diagnosed with

"neurodevelopmental disorder" and "autistic spectrum disorder."

- 3 -The staff psychologist likened KT's mental capacity to the "range

between a child and a teenager," and described KT as "the most

mentally ill person" he had ever seen. KT's physical health was

also deteriorating; he lost approximately 70 pounds in the

preceding year and a half, now weighed around "160, 150-something"

pounds, and did not have much muscle definition. Although KT had

not been physically assaultive towards staff, he did, at one point,

spit on the staff psychologist, which is considered a staff

assault. As a result of this incident, KT's picture was included

in FMC Devens's "electronic posted picture file," a list alerting

officers to be aware of certain individuals.

On June 18, 2019, an altercation occurred between KT and

a nurse in the N-3 housing unit, a semi-locked unit that KT had

been moved to that day. The nurse activated his body alarm and

sprayed KT with oleoresin capsicum ("OC") spray, also known as

pepper spray. Officers, including Bourget, arrived to assist the

nurse and restrained KT, securing KT's hands behind his back with

handcuffs and moving him from the N-3 unit to a holding cell in

the N-1 unit. Bourget began operating a handheld camcorder during

the move from N-3 to N-1. Unlike the N-3 unit, where incarcerated

individuals have the opportunity to walk around the unit and

interact with each other, the N-1 unit is a locked mental health

unit. The N-1 unit is considered the highest level of security at

FMC Devens.

- 4 -The officers locked KT in a holding cell in the N-1 unit,

with his hands still handcuffed behind his back. The officers

continuously monitored KT, and he was speaking incoherently to

them.

While in the N-1 holding cell, KT tried to spit on staff

who were outside the cell, including Bourget. KT's spit hit

Bourget in the face area and forearm; the spit appeared to be mixed

with blood. Bourget became concerned about contracting a disease

from the bloody spit and was "upset" and "scared." On the video,

Bourget can be heard saying "f***" in response to the spitting and

then "f***" again as he walked away. Another officer took control

of the camcorder during this time; at some point, he placed it on

a trashcan outside of the holding cell. A different officer told

KT, "spit again and I'll fill your face full of spray, alright?"

The officers told KT that they needed his cooperation to

clean off the OC spray. If he did not cooperate, they would have

to use more OC spray. KT continued to spit at officers, and an

officer sprayed KT with OC spray in response. This did not stop

KT from attempting to spit on officers. After KT continued to

spit, an officer is recorded saying to someone, "You going to get

the f****** shield anytime soon here, or what?" At one point,

Bourget returned to the area and said that he also wanted to spray

KT with OC spray. Lieutenant Joseph Lavorato was the supervising

- 5 -officer, and, at this point, he indicated to the officers not to

spray KT further.

KT was then left walking in circles in the holding cell,

still speaking incoherently and handcuffed behind his back.

Meanwhile, a use-of-force team was assembled to decontaminate KT

and move him from the holding cell. Bourget was identified as

"the number one man" on the use-of-force team, meaning he was the

first in line to enter the holding cell and "responsible for

securing [KT's] head and torso." One officer testified at trial

that Bourget volunteered for this position.

Almost an hour after KT was initially placed in the

holding cell, the use-of-force team headed to the area outside of

the cell. Bourget, who got there first, said "f*** you" to KT.

The rest of the use-of-force team joined Bourget shortly

thereafter, and they waited directly outside of the holding cell.

Lieutenant Lavorato asked KT multiple times to turn around and lay

down on the ground so that they could "get [him] cleaned up." One

unidentified officer on the team stated, "you're going to get

one . . . oh, you're going to get one." KT did not lie on the

ground but instead stood near the opening of the holding cell and

responded incoherently, such as by spelling his last name out loud.

The holding cell was then unlocked, and the use-of-force

team entered at full speed, with Bourget, holding a shield, at the

front of the group. Bourget entered first and hit KT with the top

- 6 -of the shield, using an upward motion that caused the shield to

hit KT's chin and face. As a result, KT fell back and hit his

head on the wall and/or floor.

Once on the ground, KT cried out in pain and again spoke

incoherently. Blood was smeared on the wall and pooled on the

ground where KT had been tackled. The officers eventually washed

the OC spray off KT and brought him to a different cell in the N-1

unit.

Later that night, KT was sent to the hospital. There

was a 2.5-centimeter laceration on the lower left side of his face

and a 3-centimeter laceration on the back of his scalp. Doctors

used twelve staples to close the wound on the back of KT's head.

After KT returned to FMC Devens, several medical staff noted his

injuries. The day after the incident, a physician assistant at

FMC Devens observed that KT had "[a] lot of bruising and swelling

over different parts of [his] face," and, a couple days later, the

staff psychologist observed that KT still had notable swelling and

bruising to his face.

When a forced cell move like this is completed, FMC

Devens staff review the use of force to ensure proper procedure

was followed. This led to an investigation into the incident,

and, eventually, criminal charges were brought against Bourget and

Lavorato.

- 7 -B. The Indictment

On February 5, 2020, a grand jury charged Bourget and

Lieutenant Lavorato under a four-count indictment. As relevant to

this appeal, the indictment charged Bourget with two counts of

deprivation of rights under color of law in violation of 18 U.S.C.

§ 242 for: (1) allegedly dropping his knee on KT's head while KT

was handcuffed and restrained on the ground after the initial

altercation with the nurse in N-3 and (2) striking KT with a

protective shield with excessive force while KT was handcuffed

inside the holding cell. The remaining counts were charged against

Lavorato.

C. The First Trial

The initial trial in spring 2022 lasted thirteen days.

Bourget and Lavorato were tried together and both testified in

their defense. Employees who worked at FMC Devens at the time of

the incident, including fourteen officers and five medical

professionals, also testified. Two other federal law enforcement

officers and two expert witnesses also testified.

Several videos of the incident -- beginning with the

altercation in N-3 and continuing through the forced cell move in

N-1 -- were introduced into evidence. Two stationary surveillance

cameras recorded the incident without sound (one in N-3 where the

altercation with the nurse occurred and one in N-1 where the

remainder of the incident occurred). Two hand-held video

- 8 -recorders, or camcorders, also recorded the incident with audio.

One of those camcorders was the one Bourget initially manned in

N-1 and that was later inadvertently left on a trashcan facing the

holding cell. The other camcorder was used during the forced cell

move and was operated by then-Lieutenant Benjamin Quinn, who was

"the number six man" on the use-of-force team -- the sixth to enter

the holding cell, whose only duty was to man the camera.

Relevant to this appeal, in the first trial, Captain

Michael Bollinger testified about a use-of-force training class he

taught at FMC Devens. He explained that the general BOP policy is

"to use the minimum amount of force necessary to resolve [a]

situation." Bollinger also explained why and how an officer may

escalate force depending on the circumstances. In doing so,

Bollinger noted that during forced cell moves, officers may use a

shield but that "[i]t should be used as a protection, never as a

weapon."

During Bollinger's testimony, defense counsel asked

about a video shown at training at FMC Devens portraying a prior

forced cell move of an incarcerated person named Sion (the "Sion

video").2 Bollinger testified that the Sion video was used as an

example to explain to officers how to transition from lesser to

greater uses of force "for a disruptive inmate, such as going from

2 Because this video is the focus of one of the main issues

on appeal, we describe it in detail.

- 9 -OC spray to the pepper ball launcher to the stun gun to, in [Sion's]

case . . . an OC grenade which basically explodes in the cell and

puts OC projectant [sic] out in the air and also strikes the inmate

with rubber balls to create a deflection so that the team can go

in on him." Bollinger specifically testified that the video was

not used in training as "an illustration of how a forced cell move

should be done." He instead explained, "I showed that video

because we were getting into that use of transitioning [between

different] less than lethal [means of force], and I thought the

lieutenant did an excellent job dictating on video how he was

transitioning from one less lethal [means] to the next." The Sion

video then came into evidence without objection from the

government.3

The Sion video shows Sion refusing to voluntarily submit

to being restrained in handcuffs and moved to a different unit.

Sion had a history of refusing orders, refusing programs, and

assaulting staff. A use-of-force team was compiled to move Sion

between units; Bourget was the "number one man" on that

use-of-force team just as he was in the incident at issue.

As seen in the video, when the use-of-force team

approached Sion's cell, Sion was not handcuffed, and he was lying

3 Although the government objected to a portion of the video

based on relevance, it did not otherwise take a position on the

remainder of the video.

- 10 -in bed; he soon got up once the officers approached. The officers

repeatedly asked Sion if he was willing to be moved and asked him

to come to the door to "cuff up," but he did not respond. The

officers then used a short burst of OC spray when Sion did not

respond to the "last direct order." Sion still refused to respond

to orders, and so the officers used another short burst of OC

spray. At this point, Sion walked away from the door of his cell,

and the officers transitioned to the use of pepper bombs. Sion

continued to refuse orders, and an additional round of pepper bombs

were deployed.

The officers then gave Sion additional time to comply

with their orders. But Sion instead went over to the sink in his

cell and attempted to clean the OC spray from his face. The

officers warned Sion that they were going to deploy stun munition

because he was not complying with their order to come to the door.

The officers then used a stun grenade, after which the use-of-force

team entered the cell to restrain Sion. The officers quickly

entered the room (without a shield) and brought Sion to the ground.

Once restrained, the officers were able to move Sion out of his

cell and take him to be decontaminated.

After the video was shown to the jury, Bollinger noted

that the main difference between the threat Sion posed in the video

and the threat KT posed in the situation here was that KT was

restrained with his hands handcuffed behind his back, whereas Sion

- 11 -was not restrained in any way. Bollinger also again confirmed

that the Sion video was used in training "to show how we would

transition through [different tiers of] less than lethal" force.

The Sion video was later briefly mentioned by defense counsel at

closing arguments and only to note that a shield was not used

during that forced cell move.

After the close of evidence, the case went to the jury,

which found Bourget not guilty on the count involving the alleged

knee drop and found Lavorato not guilty on both counts against

him. The jury could not reach a verdict as to the remaining count

against Bourget related to striking KT with the shield, and so the

district court declared a mistrial on that count. The government

sought a retrial.

D. The Second Trial

The second jury trial was held in December 2022. This

time, the trial lasted only seven days and included far fewer

witnesses. Eight officers and four medical professionals who

worked at FMC Devens at the time of the incident testified.

Additionally, one other federal officer and two expert witnesses

testified. Bourget did not testify in his defense. The videos of

the incident that were introduced at the first trial were also

introduced at the second trial.

At the second trial, Bourget again requested to

introduce the Sion video into evidence. In support of admission,

- 12 -Bourget contended that the Sion video was "used each year in the

annual training" to show "a proper forced cell move." But, unlike

in the first trial, the government objected to the introduction of

the Sion video, arguing that the video was inadmissible and being

used to show Bourget's prior good acts. The government emphasized

that the testimony from the first trial established that the Sion

video is used in training only to show how to transition between

different types of uses of force but "had nothing to do with" a

forced cell move.

After initially reserving on the question of the

admission of the Sion video in order to first reexamine the video

and the prior testimony, the district court did not allow the video

into evidence. The court gave two reasons for excluding the Sion

video: first, it found the video irrelevant because the

circumstances in the video were "very different" than the

circumstances in this case; and, second, "to the extent it ha[d]

any relevance . . . the probative value [wa]s substantially

outweighed by any . . . danger of confusion or unfair prejudice."

In reaching those conclusions, the court reasoned that

the video "involved not only a different inmate, [but] an inmate

who was not restrained, and it involved OC spray and then an

escalation to a pepper spray bomb, an OC bomb." Because those

circumstances were so different from the case here, the court

determined that the video "would [not] be helpful to the jury in

- 13 -deciding the critical issues and the contested issues they have to

decide here." The district court also focused on the Sion video

being "used in training for another purpose," namely a portrayal

of how to transition between different levels of force, rather

than to show how to complete a forced cell move. In support of

its understanding of the purpose of using the Sion video in

training, the district court pointed to Captain Bollinger's

testimony that he "showed [the Sion] video because [they] were

getting into . . . transitioning . . . from one [use of force] to

the next" and not to show how to complete a forced cell move. The

district court also found that the same analysis supported holding

that even if the video had some relevance, it was substantially

outweighed by the "danger of confusion or unfair prejudice."

In response, Bourget argued, again, that the Sion video

is used for training and the video would be introduced to show

"this is all the officers get, one to two hours in refresher

training in a classroom, and then they show a video." The district

court noted that it had taken this argument into consideration and

that, even without the admission of the video, Bourget could make

an argument regarding his training. However, the court again

highlighted that "even the person in charge of training, namely,

Bollinger, notes the video is used in training for another

purpose." Thus, the court reiterated that "to the extent that

[the Sion video] is used in the training, it's not relevant to the

- 14 -decision this jury has to make in regards to excessive use of

force."

A great deal of the trial testimony in the second trial

focused on how officers are trained to perform forced cell moves.

Captain Bollinger testified -- as he did in the first trial -- and

much of his testimony centered on how he trained officers on use

of force at FMC Devens. Bollinger said that "[s]taff are trained

to use the minimum amount of force necessary to control a

situation." He also stated that, typically, a forced cell move

would be performed on an unrestrained individual, and officers

were trained "to get into the cell as quickly as possible and

restrain that inmate." Bollinger gave the example of a 70-year-old

inmate who is sitting on his bed but not presenting his hands to

be handcuffed. He said, in that situation, he would tell officers

"run in as quickly as you can, and grab ahold of his arms" but not

to go in "and smash the guy." Bollinger also testified that a

shield is "a defensive piece of equipment [that is] not ever

trained to be used offensively in a forced cell move." And he

testified that he had never instructed any officers to move a

shield "in an upward fashion" because that "could cause extreme

injury to the head or neck area," including "serious injury . . .

and/or death." When discussing the incident with KT, Bollinger

testified that Bourget's entry into the cell was not consistent

with the training and instruction that he gave on the use of force

- 15 -because Bourget used the shield offensively, bringing the top of

the shield "up very quickly" into KT's "neck area" and "throwing

[KT's] head back."

Other officers also testified about the training

received at FMC Devens. The federal officer who led the

investigation into the incident believed that officers are "told

to be dynamic, go quickly" but that entering "at full speed, 100

percent" was not necessarily the language used. A former FMC

Devens officer noted that "[e]very cell entry is different" so

officers do not always enter at "full speed" and are trained to

use "the minimum amount of force needed." But other officers

testified that they "always enter [cells] at 100 percent" and that

they enter "[a]s fast as [they] can get in there" when completing

a forced cell move.

Captain Benjamin Quinn4 testified regarding the

reactions of the other officers when they saw the video of the

forced cell move recorded by the camcorder that was left on the

trashcan. Shortly after the incident occurred, Quinn watched the

video with Officers Corey, Kennedy, and Brown in the officer

station. Quinn testified that Officer Corey had already watched

the video and commented that "it was bad." Quinn took this to

mean that the video "wasn't going to be [] good" and that the entry

4 Quinn was a lieutenant at the time of the incident but was

promoted to captain by the time of the second trial.

- 16 -into the holding cell "probably was not a policy move." After

Quinn viewed the video, he agreed "that it was bad . . .

[s]pecifically the way that the shield was used."

After deliberating, the jury returned a guilty verdict.

Bourget had moved for a judgment of acquittal at the close of the

government's case and at the close of evidence, he did so again

after the verdict was rendered; the district court denied the

motions. The district court subsequently sentenced Bourget to a

year and a day in prison, followed by two years of supervised

release. Bourget now appeals his conviction.

II. Discussion

Bourget challenges his conviction on several grounds.

First, he argues the evidence was insufficient to support a finding

that his use of force against KT was malicious and sadistic or

that he acted with specific intent to deprive KT of his

constitutional rights. Second, he argues that the jury

instructions failed to explain the requisite standard the jury had

to apply in finding intent. Third, he argues that his right to

present a complete defense was violated by the district court's

exclusion of the Sion video in his second trial. Fourth, he argues

that he was prejudiced by hearsay and opinion testimony admitted

at his second trial. And finally, Bourget argues that these

cumulative errors, along with others, prejudiced him and deprived

him of a fair trial.

- 17 -A. Sufficiency of the Evidence

We review de novo the sufficiency of the evidence,

"scrutinizing the record as a whole, drawing all reasonable

inferences in favor of the verdict, and avoiding any credibility

judgments, to determine whether any rational factfinder could have

found each element of the crime proved beyond a reasonable doubt."

United States v. DeCologero, 530 F.3d 36, 65 (1st Cir. 2008). "To

uphold a conviction, the court need not believe that no verdict

other than a guilty verdict could sensibly be reached, but must

only satisfy itself that the guilty verdict finds support in a

plausible rendition of the record." Id. (quoting United States v.

Echeverri, 982 F.2d 675, 677 (1st Cir. 1993)).

Bourget was convicted under 18 U.S.C. § 242, a charge of

deprivation of rights under color of law. As relevant here, that

statute criminalizes the behavior of any person (1) acting under

color of law who (2) willfully (3) deprives another person "of any

rights, privileges, or immunities secured or protected by the

Constitution or laws of the United States" (4) causing "bodily

injury" as a result from these actions. 18 U.S.C. § 242; see

United States v. Bailey, 405 F.3d 102, 111 (1st Cir. 2005).

Bourget was convicted under this statute for willfully violating

KT's Eighth Amendment rights under the U.S. Constitution. Bourget

- 18 -argues that the evidence at trial was insufficient to satisfy both

the deprivation and willfulness elements under the statute.5

1. Deprivation of Eighth Amendment Rights

Under the deprivation of rights element, we are focused

on the violation of KT's Eighth Amendment right to be free from

cruel and unusual punishment. "A prison official violates the

Eighth Amendment only when two requirements are met": an objective

and subjective requirement. Cintron v. Bibeault, 148 F.4th 37, 47

(1st Cir. 2025) (cleaned up) (quoting Farmer v. Brennan, 511 U.S.

825, 834 (1994)). The objective requirement provides that "the

deprivation alleged must be, objectively, sufficiently serious."

Id. (quoting Farmer, 511 U.S. at 834). The subjective requirement

provides that "a prison official must have a sufficiently culpable

state of mind." Id. (quoting Farmer, 511 U.S. at 834). Because

Bourget focuses his appeal only on the subjective requirement,

that is where we focus our analysis.6

Under the subjective requirement, when faced with a

prison disturbance, the question of whether the defendant's action

caused "unnecessary and wanton pain and suffering," such that the

5 As the parties do in their briefing, we begin with the

deprivation element. This approach makes sense because, as is

evident in our discussion, the Eighth Amendment analysis of the

deprivation element also involves the defendant's state of mind.

6 Because Bourget does not raise any argument as to the

objective requirement, any potential argument is waived. See Toloza-Jiménez v. Gonzáles, 457 F.3d 155, 160 (1st Cir. 2006).

- 19 -defendant had the requisite culpable state of mind, "turns on

whether force was applied in a good faith effort to maintain or

restore discipline or maliciously and sadistically for the very

purpose of causing harm." Hudson v. McMillian, 503 U.S. 1, 6

(1992) (quoting Whitley v. Albers, 475 U.S. 312, 320-21 (1986)).

In answering this question, we address the following factors laid

out by the Supreme Court, known as the "Whitley factors":

(1) the extent of the threat to the safety of

staff and inmates, as reasonably perceived by

the responsible officials, (2) the need for

the application of force, (3) the relationship

between the need and the amount of force that

was used, (4) the extent of the injury

inflicted, and (5) any efforts made to temper

the severity of a forceful response.

Segrain v. Duffy, 118 F.4th 45, 56-57 (1st Cir. 2024) (cleaned up)

(quoting Staples v. Gerry, 923 F.3d 7, 13 (1st Cir. 2019)).

Because direct evidence of motive or intent is often lacking, the

Whitley factors may be used to "infer the existence of the

subjective state of mind required for an Eighth Amendment

violation." Id. at 61-62 (cleaned up) (quoting Dean v. Jones, 984

F.3d 295, 302 (4th Cir. 2021)).

Bourget does not directly apply the Whitley factors in

his briefing; instead, he argues that the evidence before the jury

supports only that he acted with deliberate indifference and not

with malicious and sadistic intent. In so doing, he contends that

KT spitting on him before Bourget entered the cell and Bourget's

- 20 -own language during the encounter (saying things like "f*** you")

are not enough to show he acted maliciously and sadistically. He

also emphasizes that he used a shield only at his lieutenant's

instruction and entered the cell at "100%" because that was how he

was trained. He does not address what the jury could have inferred

from the Whitley factors.

Applying the Whitley factors, we think a plausible

rendition of the record, when viewed in the light most favorable

to the verdict, supports the jury's conclusion that Bourget acted

with malicious and sadistic intent.

Under the first factor, a jury could have found that the

threat to the safety of staff and inmates was low when the officers

rushed KT and Bourget struck him with a shield, where KT was

standing still and handcuffed behind his back, had been sprayed

with OC spray several times, and had "[d]eteriorating" physical

health, such that he had lost weight, had "no muscular definition,"

and was described as "emaciated." Officers also testified that KT

did not make any threatening statements or aggressive movements at

the time of the forced cell move. The use-of-force team was

composed of five officers wearing protective gear, all entering

the cell together to restrain KT (with a sixth officer following

to record the incident on camera). Bourget, who was present before

the incident and led the team into the cell, was aware of these

facts before entering the cell and utilizing force and could and

- 21 -should have perceived the threat presented to be low. See Segrain,

118 F.4th at 62 (finding, at the summary judgment stage, that a

reasonable jury could find that the responsible official should

have perceived the threat as low where the incarcerated individual

was handcuffed and surrounded by six officers, even though he held

a prison-issued razor).

We turn next to the second Whitley factor -- the need

for the application of force -- and the third factor -- the

relationship between that need for force and the amount of force

used. Although the record indisputably supports a finding that

some use of force was necessary to decontaminate KT so that he did

not suffer further harm, the jury reasonably could have concluded

that the amount of force utilized here was disproportionately high

in relation to that need. The jury had the videos of the incident

before it -- as do we -- and could view the significant amount of

force used by Bourget when he speared KT with the shield. The

jury also heard evidence establishing how shields are meant to be

used defensively in this context and how that differed from

Bourget's offensive use here, causing KT further harm, and heard

testimony about the risk of serious injury or death posed by the

type of spearing, upward motion Bourget used. Though the jury

heard competing evidence as to how the officers were trained to

enter the cell and utilize force (with some officers testifying

they always enter a cell at 100 percent during forced cell moves

- 22 -and others testifying that the entry is fact-dependent but they

always use the minimum amount of force necessary), the jury was

able to consider and weigh that evidence in making its decision.

As to the fourth Whitley factor, the extent of the

injuries, the jury also heard evidence that, with his hands cuffed

behind his back, KT suffered significant injuries as a result of

being hit with the shield and forced backwards. When forced back,

KT hit his head on the wall and/or floor of the holding cell. The

jury saw videos of the incident, which showed blood smeared on the

wall and pooled on the floor of the holding cell. KT was treated

at a hospital later that night, and the procedure notes from that

visit identified a 2.5-centimeter laceration on the lower left

side of his face and a 3-centimeter laceration on the back of his

scalp. Twelve staples were needed to close the wound on the back

of KT's head. One lieutenant saw KT the day after the incident

and testified that the injuries he observed on KT "weren't normal"

compared to injuries he had previously seen on inmates after a

calculated use of force, which were typically less severe. The

physician assistant who saw KT the morning after the incident

testified that KT had "[a] lot of bruising and swelling over

different parts of the face with the wound -- the stitches in the

left lower cheek." The jury also heard evidence that a couple of

days after the incident, the staff psychologist at FMC Devens noted

that KT still had "[a] lot of swelling and bruising around his

- 23 -face." The jury reasonably could have concluded that KT's injuries

were significant.7

On balance, viewing the record in the light most

favorable to the verdict, the Whitley factors weighed in favor of

inferring that Bourget acted with malicious and sadistic intent.

Further, despite Bourget's arguments to the contrary, the jury was

also presented with direct evidence of Bourget's specific intent,

including his use of language (saying "f***" and "f*** you") and

expressed desire to spray KT with OC spray.

For these reasons, a plausible rendition of the record

supports the jury's finding that Bourget acted with malicious and

sadistic intent and (because Bourget does not challenge the

conclusion that the objective requirement was met) accordingly

deprived KT of his Eighth Amendment rights.

2. Willfulness

We next turn to the willfulness element. When the word

willful is "used in a criminal statute, it generally means an act

done with a bad purpose." Screws v. United States, 325 U.S. 91,

7 Although we need not go through a recitation of each

factor, we note that as to the fifth Whitley factor -- whether

efforts were made to temper the severity of the response -- it is difficult to say how it weighs here. After the use-of-force team

entered the cell, following Bourget's strike with the shield, the team promptly decontaminated KT from the lingering OC spray.

Despite the officers' attention to decontaminating KT, they did

not appear to focus on KT's other injuries, and medical staff soon took over. Thus, this factor tends to weigh neutrally as to

Bourget's efforts to temper the severity of the use of force.

- 24 -101 (1945) (quoting United States v. Murdock, 290 U.S. 389, 394

(1933)). Section 242 is not "a trap for law enforcement agencies

acting in good faith" but, instead, applies to officials who

"either know[] or act[] in reckless disregard of [the statute's]

prohibition of the deprivation of a defined constitutional or other

federal right." Id. at 104. A defendant's bad purpose does not

need to be expressed; it can instead be "reasonably inferred" from

the circumstances. Id. at 106. "The requisite intent could be

established by 'all the attendant circumstances -- the malice of

the defendant, the weapons used in the assault, its character and

duration, the provocation, if any, and the like.'" United States

v. Marler, 756 F.2d 206, 217 (1st Cir. 1985) (cleaned up) (quoting

Screws, 325 U.S. at 107).

Bourget argues that the jury could not infer that he had

the requisite specific intent because he did not engage in a

pattern of abusing KT, he had been trained to enter the cell at

"100%," and he had not received instruction on how to use the

shield. But, viewing the evidence in the light most favorable to

the verdict, we see the evidence differently.

Bourget does not recognize that the jury heard competing

evidence as to how officers were trained and how much force should

have been used in this circumstance under that training. Although

there was evidence that supported Bourget's theory that officers

were taught to enter a cell at 100 percent, several witnesses

- 25 -instead testified that officers were to enter the cell quickly and

then use the minimum amount of force necessary. See United States

v. Hill, 99 F.4th 1289, 1307 (11th Cir. 2024) (reasoning that

"where the officer's actions so obviously violate his training on

the use of force, a jury may infer that the violation was willful"

(cleaned up) (quoting United States v. Brown, 934 F.3d 1278, 1297

(11th Cir. 2019))). The jury was also presented with evidence

that Bourget was upset about being spit on and made several

negative comments towards or near KT. Additionally, an officer

testified that Bourget volunteered to be the number one man on the

use-of-force team. Finally, and most importantly, a jury could

reasonably find that, as five officers in body armor rushed the

handcuffed KT, there was no reason to use a shield as a spear other

than to harm KT. The jury could weigh the evidence and plausibly

find that Bourget's statements and actions were probative of his

malice towards KT and, accordingly, his state of mind when using

the shield offensively and utilizing force against KT. See Marler,

756 F.2d at 217.

For these reasons, viewing the record in the light most

favorable to the verdict, a jury could have found that Bourget had

the requisite state of mind here. Accordingly, a rational

factfinder could have found each of § 242's elements was

established beyond a reasonable doubt under a plausible reading of

the record. Bourget cannot overcome the formidable standard of

- 26 -review required to succeed on this argument. Thus, we hold that

Bourget's sufficiency challenge fails.

B. Jury Instructions

We briefly turn to Bourget's challenge to the jury

instructions relating to the elements of willfulness and the

deprivation of his Eighth Amendment rights. We review preserved

challenges to jury instructions de novo. United States v.

Delgado-Marrero, 744 F.3d 167, 184 (1st Cir. 2014).

Bourget argues that the jury instructions were wrong in

two ways, again focusing on the deprivation and willfulness

elements of § 242. Bourget first argues that, although the court

correctly stated that the pain inflicted by Bourget must have been

inflicted "maliciously and sadistically" to find an Eighth

Amendment violation, the jury instructions failed to define those

terms. Second, he takes issue with the instruction's

characterization of the requisite state of mind, critiquing the

jury instructions because they did not explicitly state that

"inadvertence" or "deliberate indifference" were insufficient and

instead focused on "all of the circumstances." Relatedly, Bourget

argues that the instructions could have erroneously given the jury

the impression that the willfulness element was met as long as he

intentionally used the shield to strike KT.

But, fatal to Bourget's argument on appeal, the jury

instructions given by the district court on these two elements

- 27 -were materially identical to the instructions requested by

Bourget. "When a party affirmatively requests a particular jury

instruction, that party waives its right to challenge that

instruction on appeal." United States v. Ruiz, 999 F.3d 742, 749

(1st Cir. 2021). Bourget has not pointed us to any unusual

circumstances that would cause us to stray from our usual rule,

and we see no reason to do so. See id. Thus, Bourget has

affirmatively waived any argument that the jury instructions on

these elements were improper. Accordingly, Bourget's

jury-instruction argument fails.

C. Exclusion of the Sion video

Bourget next argues that exclusion of the Sion video

violated his right to present a complete defense.8 He contends

that the exclusion impaired his ability to (1) "demonstrate that

the manner of his entry into KT's cell was consistent with his

understanding of the appropriate level of force to be used by the

number 1 officer in a forced cell move" and (2) "counter the

government's extensive expert testimony that Bourget's actions

8Bourget, at times, attempts to "frame [his] evidentiary

grievances as a constitutional issue" but does not distinguish his argument from the run-of-the-mill evidentiary issues parties often raise. See United States v. Pena, 24 F.4th 46, 70 (1st Cir. 2022). Thus, we follow our usual framework and examine whether the

district court abused its discretion in its evidentiary

determinations.

- 28 -were inconsistent with the training and implementation of BOP

policy on the use of force."9

Criminal defendants are guaranteed "a meaningful

opportunity to present a complete defense." DeCologero, 530 F.3d

at 72-73 (quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)).

However, that right "is subject to reasonable restrictions," such

as through the promulgation of the Federal Rules of Evidence,

including Rules 401 and 403, which are at issue here.10 Id. at 73

(quoting United States v. Scheffer, 523 U.S. 303, 308 (1998)).

We review a district court's exclusion of evidence under

Rules 401 and 403 for abuse of discretion. United States v.

Wallace, 461 F.3d 15, 28 (1st Cir. 2006); United States v.

Stewart-Carrasquillo, 997 F.3d 408, 421 (1st Cir. 2021). "Under

Rule 401, evidence is relevant if it has 'any tendency to make a

fact [of consequence] more or less probable.'" United States v.

Shafa, 175 F.4th 1, 16 (1st Cir. 2026) (alteration in original)

9 Bourget cursorily suggests that the exclusion of other

evidence showing his "lack of prior discipline for prior forced

cell moves" was also "erroneous." Given the lack of developed

argumentation, any such argument is waived. See United States v.

Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

10 Although the government focuses on the Sion video being

inadmissible under Rule 404 as "other acts" evidence, we need not dive into the applicability of that rule because (1) evidence must always be relevant under Rules 401 and 402 and (2) the analysis of Rule 404 would require the evidence to satisfy Rule 403 as well.

See United States v. García-Sierra, 994 F.3d 17, 29 (1st Cir.

2021). And because we can resolve the issue before us under Rules 401 and 403, we need go no further.

- 29 -(quoting Fed. R. Evid. 401). "Our review as to a district court's

relevancy determination is 'quite deferential,' . . . and such

determinations provide grounds for reversal only in 'exceptional

cases.'" United States v. Armenteros-Chervoni, 133 F.4th 8, 27

(1st Cir. 2025) (first quoting United States v. Pina-Nieves, 59

F.4th 9, 21 (1st Cir. 2023); and then quoting Cummings v. Standard

Reg. Co., 265 F.3d 56, 63 (1st Cir. 2001)).

Even if evidence is relevant, "[u]nder Rule 403, a

district court may exclude evidence when its probative value is

substantially outweighed by the danger of unfair prejudice."

Stewart-Carrasquillo, 997 F.3d at 421. In our review, "[w]e give

great deference to a district judge's balancing of probative value

versus unfair prejudice." Id. (quoting United States v. Breton,

740 F.3d 1, 14 (1st Cir. 2014)). "An abuse of discretion occurs

when a relevant factor deserving of significant weight is

overlooked, or when an improper factor is accorded significant

weight, or when the court considers the appropriate mix of factors,

but commits a palpable error of judgment in calibrating the

decisional scales." United States v. Frabizio, 459 F.3d 80, 91

(1st Cir. 2006) (cleaned up) (quoting United States v. Gilbert,

229 F.3d 15, 21 (1st Cir. 2000)).

Given the deferential lens of our review, we hold that

the district court did not overlook a relevant factor, improperly

- 30 -weigh the considerations at play, or commit any error in judgment

in excluding the Sion video. We explain why we think this is so.

We begin with Rule 401. Bourget argues that the Sion

video is relevant to his intent, as it shows his understanding of

the high level of force that was to be used in a forced cell move,

especially by the first officer to enter. Bourget further argues

that even if the Sion video was not used to train officers on how

to enter a cell or complete a forced cell move, just showing the

video in training for any purpose without criticizing the use of

force therein "gave tacit approval" to the high level of force

officers used when striking Sion.11

We first dispatch Bourget's argument that the Sion video

portrays how he was officially trained on completing a forced cell

move at FMC Devens and is thus directly relevant to his

understanding of the level of force to be used. Bourget did not

provide any evidence or support for his argument that the Sion

video was shown for the purpose of training on how to complete a

forced cell move. Rather, Bourget leaned heavily on Bollinger's

11Bourget also argues that he needed the Sion video to

counter the government's expert witnesses, including Bollinger,

who testified regarding BOP policies. But this argument is a

repackaging of his other arguments -- that the Sion video was

further evidence of the training he received. He is simply reframing the same idea that he would have used the Sion video as evidence of his training, which he believes would have supported

some of the evidence regarding his training and contradicted other evidence.

- 31 -testimony in the first trial to make that argument, insisting that

Bollinger had testified that the video was shown in training "as

essentially the way to do a proper forced cell move." So when the

district court was asked to determine admissibility, it did not

need to "resolve[] for itself" any "competing inference[s]"

regarding the import of the video or assess the "credibility" of

Bollinger's explanation about how and why the video was used in

training, as the dissent here suggests. Instead, after Bourget

argued that Bollinger had testified that the Sion video was used

to illustrate a proper cell move, it was a simple matter of

checking the transcript -- which revealed that Bollinger in fact

said the opposite. In short, relevancy came down to a question of

what Bollinger said, not whether his statements were credible.

As the district court observed, Bollinger's testimony at

the first trial emphasized that the Sion video was shown in

training only to teach how to transition from one type of use of

force to another, and there was no evidence that it was used to

teach how to perform a forced cell move. Accordingly, we find

that the Sion video is not relevant to show how Bourget was

actually trained on entering a cell during a forced cell move.

That leaves us with Bourget's argument that showing the

Sion video at training "gave tacit approval" of the level of force

used to enter Sion's cell and so was relevant for that purpose.

In other words, Bourget argues that even if the Sion video was not

- 32 -used to train him on how to complete a forced cell move, by showing

the video at training, he was led to believe that the entry into

the cell in the Sion video was proper. However, even if playing

the video tacitly approved the entry into the cell under the

circumstances present in the Sion video, those circumstances were

so different from the circumstances with KT that the relevance of

the Sion video to Bourget's state of mind here is, at most, minimal

verging on non-existent. Let us explain.

The videos of the two incidents involving KT and Sion

illustrate the stark contrast in the circumstances of the two men.

Most noticeably, KT's hands were handcuffed behind his back, while

Sion was not handcuffed at all, and Bourget led the team into KT's

cell holding a large shield before him (which he used to strike KT

and force him to the ground), but no shields were used when

entering Sion's cell. Additionally, where KT stands directly in

front of the holding cell with his hands tied securely behind his

back, Sion is pictured lying in his bed, unrestrained, and when

pepper spray and pepper bombs are used against Sion, he is able to

freely move around his cell and use his hands to wash the spray

from his face in a sink. KT cannot use his hands at all, either

offensively or, as Sion does, to help mitigate the effects of

pepper spray. KT is also standing still in full view of the

officers when they enter the cell; Sion, on the other hand, is

- 33 -walking around and seems to move at least partially out of the

officers' view.

But other differences are evident as well. Prior to

entry, in KT's case, only pepper spray had been used, twice. In

Sion's case, many different escalating types of force had been

used before the final physical entry into the cell, and Sion still

did not comply. Also, as the district court noted, the two inmates

were different men, had different prison behavioral histories, and

were in different physical conditions.

For these reasons, even if showing the Sion video at

training gave "tacit approval" of all the officers' actions in

that video, those actions were hardly relevant to the entry into

KT's cell, which involved such different circumstances. But we

need not reach the ultimate issue of relevance here because we

find that, even if the video was minimally relevant to Bourget's

willfulness, its minimal probative value was far outweighed by the

risk of the dangers discussed in Rule 403, as the district court

properly found.

We begin our analysis of the probative value of the Sion

video by again recognizing that our review of the district court's

decision here is highly deferential. Stewart-Carrasquillo, 997

F.3d at 421. And, as noted above, the district court held that

any probative value of the Sion video was substantially outweighed

by the risk of confusion and unfair prejudice. Our deference to

- 34 -the district court is particularly strong here where the district

court was uniquely familiar with the evidence, as it had both

viewed the Sion video and seen how the video was utilized in the

first trial, and where Bourget made clear he intended to use the

Sion video in the same way he had in the first trial. See United

States v. Nelson-Rodriguez, 319 F.3d 12, 34 (1st Cir. 2003) (noting

that trial courts are given wide discretion in their Rule 403

rulings); DeCologero, 530 F.3d at 52 (noting prior proceedings had

made trial judge "particularly aware of and sensitive to the

complexity of" the case and the issues before it). Where the trial

court is left to make this kind of judgment call, we will give

"considerable leeway" to that judgment. See United States v.

Simonelli, 237 F.3d 19, 23-24, 26-27 (1st Cir. 2001) (quoting

United States v. Mazza, 792 F.2d 1210, 1215 (1st Cir. 1986)). This

makes sense, "since the trial judge 'is more directly familiar

than a court of appeals with the need for the evidence and its

likely effect.'" Nelson-Rodriguez, 319 F.3d at 34 (quoting United

States v. Lau, 828 F.2d 871, 874 (1st Cir. 1987)).

Turning to Rule 403's focus on probative value, we find

that the probative value of the Sion video was minimal for many of

the same reasons the video is largely irrelevant. See United

States v. Villa-Guillen, 102 F.4th 508, 517 (1st Cir. 2024)

(discussing relevance and probative value together). Although

Bourget claims the Sion video demonstrates the high level of force

- 35 -used by a lead officer in a forced cell move and that it is relevant

to his intent and understanding of the level of force used to enter

a cell, the Sion video provided, at most, "only indirect support"

for Bourget's defense related to his state of mind. See United

States v. Abdelaziz, 68 F.4th 1, 73 (1st Cir. 2023) (finding that

excluded evidence would have "provide[d] only indirect support"

for defendant's claim related to his thought process). As we made

clear in our discussion of the relevance of the video, showing the

Sion video, at most, gave only "tacit approval" of the manner of

entry into the cell there. But the circumstances in the Sion video

were so different from the incident with KT that any "tacit

approval" would carry minimal probative value.

The differences between the circumstances in the Sion

video and the incident involving KT contribute heavily to our Rule

403 analysis. Surely, the greater the differences, the lower the

probative value. What if the proposed video had even more

differences? If the inmate had a weapon or the video took place

in a different prison? It is difficult for us to see how, if we

injected further variables, those different variables would not

bear on the admissibility of the proposed video. The weight of

the evidence is vital in making a determination under Rule 403.

See United States v. Tkhilaishvili, 926 F.3d 1, 15 (1st Cir. 2019)

(framing the balancing test under Rule 403 as "gaug[ing] probative

- 36 -weight against prejudicial effect" (quoting Veranda Beach Club

Ltd. P'ship v. W. Sur. Co., 936 F.2d 1364, 1373 (1st Cir. 1991))).

Additionally, although Bourget argued to the district

court that the video was meant to show the type of training he

received, the district court correctly found that the video's

admission was not necessary for Bourget to make that argument.

And the record reveals that a number of officers testified about

their training in a way that supported Bourget's argument: several

officers stated that they were trained to always enter cells at

"100 percent" or "full speed"; and another officer testified that

while entering the cell with a shield for a forced cell move,

"[y]ou go in as fast as you can." See United States v.

García-Sierra, 994 F.3d 17, 33 (1st Cir. 2021) (finding independent

evidence of the same nature "undermined the marginal value" of the

evidence at issue). And to the extent that Bourget sought to

introduce evidence in the second trial that he was not specifically

trained about how to use a shield, one training video in isolation

that does not itself involve the use of a shield does not

significantly further this argument, particularly when the

testimony at trial regarding the minimal training provided on using

a shield was generally consistent.

The dissent suggests that the Sion video played a major

role in the first trial and that its exclusion in the second,

"gutted the heart of Bourget's defense." But in the first trial,

- 37 -defense counsel centered its closing argument on the testimony of

the defendants and other correctional officers, only briefly

referring to the Sion video and noting that a shield was not used

in that video.12 Given the lengthy testimonial evidence and the

limited use of the Sion video at the first trial, exclusion of the

video did not significantly curtail Bourget's defense as the

dissent posits. The Sion video was merely repetitious of the

significant testimonial evidence regarding how Bourget was

trained, further minimizing the video's probative value.13

And when we examine that minimal probative value against

the dangers outlined in Rule 403, it is clear the danger present

here substantially outweighs this minimal probative value. As the

government argues, admitting the Sion video presented a high risk

12 The dissent correctly notes that defense counsel told the

jury, "[y]ou have [the Sion] video and you'll be able to see it." However, when read in context, defense counsel made this point to counter an exhibit, an internal BOP memorandum, that suggested

Bourget had used a shield during the Sion entry. But, as defense

counsel argued during closing, while a shield was used in the Sion forced cell move to cover the hinged slot in the cell door (also

referred to as a "trap"), it "wasn't used in the forced cell move. You have that video and you'll be able to see it and we showed it here in court that [Bourget] did not go in with a shield on that

forced cell move. It was only used to cover the trap."

13 The dissent likens the Sion video to the photographs and

videos of child sexual abuse discussed in a child pornography case, United States v. Ross, 171 F.4th 522, 531 (1st Cir. 2026). We

think the evidence here is distinguishable for a number of reasons, but, most importantly, the visual depictions there were evidence

of the crime itself, not depictions of an entirely different

incident. Evidence of the crime obviously carries a significantly higher probative value, even when there is other corroborating

evidence.

- 38 -of jury confusion. Admission could have implied that the Sion

video was particularly important to forced cell moves or that it

depicted a typical level of force utilized in a forced cell move

when, in fact, nothing in the record establishes that either of

those things are true.

Thus, it was reasonable for the district court to

conclude that the danger the Sion video presented substantially

outweighed the marginal probative value of the video. "We see

nothing 'extraordinarily compelling' with this case which would

require us to second-guess the district court's conclusions and

re-balance [its] consideration[s]." See United States v. Soto,

799 F.3d 68, 92 (1st Cir. 2015). Accordingly, the district court

did not abuse its discretion when deciding to exclude the Sion

video.14

14 Because we find no error, we need not discuss

harmlessness. However, we note that although the dissent suggests that the change in outcome between the trials shows that exclusion of the Sion video likely affected the verdict, we do not see how

that can be so on this record. The fact, alone, that the Sion

video was shown in the first trial, which ended in a hung jury,

but not shown in the second trial, which ended in a conviction, is not sufficient to convince us. The first trial had additional

counts and significantly more evidence for the jury to consider

than the second trial, including the testimony of the defendants

themselves. Thus, a number of factors could have contributed to

the change in outcome. And we cannot conclude that the showing or not showing of the video was the determinative factor.

- 39 -D. Challenged Testimony of Captain Quinn

Next, Bourget argues that he was prejudiced by the

admission of hearsay and improper lay opinion evidence.

Specifically, he points to Captain Quinn's testimony about the

officers' reactions to watching the video of the incident. Quinn

testified that when the officers watched the video of the incident

with KT, another officer stated that "it was bad." Quinn

elaborated that he believed the officer meant that the use of force

against KT "probably was not a policy move." Quinn also testified

that his immediate reaction was that the video "was bad."

The government, in turn, argues that Bourget has failed

to explain why this evidence is not hearsay testimony admissible

as a present sense impression under Rule 803 of the Federal Rules

of Evidence, as the district court found. The government also

claims that Bourget has waived any argument that these statements

were improper lay opinions, as he never raised that argument before

the district court and does not argue plain error before this

court.

Before the district court and prior to trial, Bourget

argued that testimony that officers said the video "looked bad"

should not be allowed. He argued that "[s]uch evidence is clearly

prejudicial." In response, the government argued that this

testimony was admissible as present sense impressions under Rule

- 40 -803. Bourget later argued that the statements did not meet the

requirements under Rule 803.

On appeal, as the government correctly notes, Bourget

did not argue against the applicability of Rule 803 in his opening

brief. In his reply brief, he argues for the first time that these

statements do not meet the requirements to be admitted into

evidence as present sense impressions under Rule 803. However,

Bourget's failure to address an exception relied upon by the

district court in his opening brief waives any such argument.

United States v. Henry, 848 F.3d 1, 7 (1st Cir. 2017). And Bourget

does not raise any argument as to why we should not follow this

well-established appellate rule.

As to Bourget's argument that Quinn's testimony was

improper lay opinion testimony, Bourget never raised that argument

before the district court. Thus, at best, we can only review this

argument for plain error. United States v. De La Cruz, 91 F.4th

550, 551 n.1 (1st Cir. 2024). However, Bourget also never

addresses plain error in his briefing; accordingly, any such

argument is waived. See id. (finding that failure to address the

plain-error test results in the claims being deemed "waived for

lack of developed argumentation").

For these reasons, Bourget's arguments regarding Quinn's

testimony are waived.

- 41 -E. Cumulative Error

Lastly, Bourget argues that the alleged errors discussed

above, in combination with a number of errors he did not raise

before the district court and does not meaningfully develop on

appeal, together amount to cumulative error that prejudiced him

and, therefore, warrant a new trial.

"Cumulative error may require reversal 'because

individual errors, insufficient in themselves to necessitate a new

trial, may in the aggregate have a more debilitating effect and

thus add up to prejudice.'" United States v. O'Donovan, 126 F.4th

17, 46 (1st Cir. 2025) (quoting United States v. Baptiste, 8 F.4th

30, 39 (1st Cir. 2021)). However, "the operation of that principle

depends on the existence of two or more errors." United States v.

Stokes, 124 F.3d 39, 43 (1st Cir. 1997).

We have already discussed above why Bourget's asserted

errors were not errors at all, with the exception of the waived

arguments on jury instructions and Captain Quinn's testimony, on

which we did not provide our view on whether admitting that

evidence was error. Yet Bourget does not argue why these waived

errors together (if they are errors), or in combination with other

errors, would rise to the level of cumulative error. Instead,

Bourget focuses on throwing a number of new issues at the wall to

see what sticks. Yet he does nothing to develop any of these

issues. He does not discuss how they were raised below, if they

- 42 -were raised below, what the standard of review is, or any other

relevant arguments. So, again, we find his claims are waived for

failure to make "some effort at developed argumentation." United

States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

III. Conclusion

For the foregoing reasons, we affirm Bourget's

conviction.

-Concurring and Dissenting Opinions Follow- 43 -KAYATTA, Circuit Judge, concurring. I join Judge

Montecalvo's opinion in full. I write separately only to explain

why I view the exclusion of the Sion video as a simple and

straightforward application of judgment by an experienced and able

trial judge who had a front row seat -- twice -- to what was

actually being contested in this case.

The government's theory did not rely at all on the speed

of entry into KT's cell. Indeed, in closing, the prosecutor said,

"[Y]es, you go in fast. . . . Of course you should go in quickly."

Instead, the focus of the trial -- quite understandably -- was on

Bourget's use of a "shield as a weapon to make an upper cut into

[KT]'s face and chin." But no shield was used in any way in the

Sion video. So the video either would have harmed the defense -- by

showing that a forced cell move could be accomplished without a

shield, much less without using a shield as an offensive

weapon -- or it would have served as a red herring that might have

led to confusion as jurors scratched their heads trying to ponder

its relevance. Either way, it was well within the trial judge's

discretion under Federal Rule of Evidence 403 to exclude the Sion

video.

- 44 -LYNCH, Circuit Judge, dissenting. With the greatest

respect, I conclude that defendant Bourget did not receive a fair

trial in this second prosecution for the same criminal charge under

18 U.S.C. § 242. The prosecution had the burden of proving beyond

a reasonable doubt that Bourget "willfully subject[ed]" KT "to the

deprivation of any rights, privileges, or immunities secured or

protected by" the Eighth Amendment. See 18 U.S.C. § 242. In the

first trial, before a jury, the government did not secure

convictions on either of the two charges against Bourget, and the

jury acquitted him on the first charge. The second trial was the

government's next effort to secure a conviction on the second

charge, as to which the first jury had hung.

The district court in this retrial, after a mistrial,

erred in excluding the highly relevant Sion video, which had been

presented to the jury in the first trial, where the jury was unable

to reach a verdict on the charge that Bourget violated § 242 by

striking KT with the shield during a forced cell move. That

exclusion gutted the heart of Bourget's defense that he lacked any

intent to violate KT's right to be free from cruel and unusual

punishment, his defense that he had been trained to enter cells at

full speed during forced cell moves but had never been trained how

- 45 -to use a shield in doing so,15 his defense that his superiors were

responsible for inadequate training and had every reason to

scapegoat him, and his defense that KT's injuries occurred in

consequence of those failures by his superiors. The difference in

outcomes between these two sequential criminal prosecutions

underscores the high likelihood that the erroneous exclusion of

the Sion video affected the verdict. In excluding the video, the

trial judge violated binding precedent and impermissibly weighed

the credibility of witnesses. It was the jury's role to decide

these questions.

The district court excluded the evidence on two grounds:

that the video was not relevant, and that its admission would

unfairly prejudice the prosecution and confuse the jury. The video

was obviously relevant. This conviction cannot stand in light of

the district court's erroneous reasoning that admission of the

Sion video would unfairly prejudice the prosecution and confuse

the jury, grounds that the government did not even argue at the

second trial. At the first trial, the Sion video, showing Bourget

leading a team of five officers into Sion's cell during a forced

cell move, was admitted without objection from the prosecution.

As the video played for the jury, the prosecution objected only to

15 The term "forced cell move" refers to the BOP procedure

in which, after the cell door is unlocked and opened, a team of

officers enters the cell to restrain and move the inmate.

- 46 -an earlier portion, on the limited ground that "the prior part

. . . doesn't involve [Bourget]." The prosecution made no claim

at the first trial of irrelevance, unfairness to the government,

or confusion to the jury, and for good reason. The prosecution's

about-face at the second trial greatly increased the likelihood of

Bourget's conviction because the jurors were deprived of seeing

the video evidence at the heart of his defenses.

The Supreme Court has recently cautioned that courts

must be careful to avoid "negative systemic consequences for prison

officials" and interference with "the 'inordinately difficult

undertaking' of running a prison." Goldey v. Fields, 606 U.S.

942, 944 (2025) (quoting Turner v. Safley, 482 U.S. 78, 84-85

(1987)). The Court has also recognized that prison administrators

are entitled to "wide-ranging deference in the adoption and

execution of policies and practices that in their judgment are

needed to preserve internal order and discipline and to maintain

institutional security." Hudson v. McMillian, 503 U.S. 1, 6 (1992)

(quoting Whitley v. Albers, 475 U.S. 312, 321-22 (1986)). Here,

the jury was deprived of key evidence bearing on how FMC Devens

trained its officers and whether Bollinger's later use of the Sion

video during annual training conveyed tacit approval of Bourget's

conduct as lead man in that earlier forced cell move, matters

directly implicating the Supreme Court's concerns about judicial

interference with prison administration, policies, and practices.

- 47 -I. The Sion Video Was Improperly Excluded

The majority errs in concluding that the Sion video was

not relevant to show how Bourget was trained to enter a cell during

a forced cell move and in its further assertion that the video

had, at most, minimal relevance to his state of mind.

The Sion video easily cleared Rule 401's low threshold

because it bore directly on whether the government had carried its

burden to prove beyond a reasonable doubt that Bourget acted

willfully, that is, with the specific intent to deprive KT of his

Eighth Amendment rights. Evidence is relevant if it "has any

tendency to make a fact [of consequence] more or less probable

than it would be without the evidence." Fed. R. Evid. 401

(emphasis added). "'[R]elevancy is a very low threshold' that

only requires the tendered evidence to 'move the inquiry forward

to some degree.'" United States v. Rathbun, 98 F.4th 40, 51 (1st

Cir. 2024) (quoting United States v. Cruz-Ramos, 987 F.3d 27, 42

(1st Cir. 2021)); see also Neece v. City of Chicopee, 106 F.4th

83, 93 (1st Cir. 2024) (explaining that relevant evidence "need

not definitively resolve a key issue in the case" (quoting United

States v. Rathbun, 98 F.4th 40, 51 (1st Cir. 2024))).

The excluded Sion video did far more than merely "move

the inquiry forward" here. It provided substantial support for

Bourget's contention that KT's injuries were not the consequence

of any intent to violate his Eighth Amendment rights. On Bourget's

- 48 -theory, KT's injuries resulted from his superiors' approval of the

methods employed in the Sion video and the superiors' failure to

train Bourget and other officers on how to handle forced cell moves

in different circumstances, including with a shield. The testimony

of other officers on the entry team that they, too, were trained

to enter at "100 percent" or "full speed" further supported the

relevance of the Sion video. The number two officer testified

that he was trained to enter at "100 percent speed" by "every

single person above [him]" when conducting a forced cell move.

The number four officer testified that he was trained to "always

enter at 100 percent" speed. And the number six officer, who

followed the team with the video recorder and testified as a

government witness, agreed that officers are instructed to "go in

100 percent, full speed" during a forced cell move. That testimony

reinforced the Sion video's relevance to the hotly disputed issue

of Bourget's intent by showing that what it depicted -- Bourget,

as the number one officer, entering the cell forcefully and at

high speed -- was consistent with how the officers were trained to

enter a cell during a forced cell move. See United States v.

Proano, 912 F.3d 431, 439 (7th Cir. 2019) (holding that an

officer's training is relevant to willfulness under § 242 because

acting "in accordance with his training could make it less likely

that he acted willfully"); United States v. Rodella, 804 F.3d 1317,

1338 (10th Cir. 2015) (upholding admission of officer's pursuit

- 49 -training as relevant to show that he knew his pursuit was unlawful

and acted willfully under § 242).16

The majority's emphasis on the fact that defense counsel

referred expressly to the Sion video only briefly in his closing

argument at the first trial misses the point. The first jury had

already seen the Sion video, and counsel expressly reminded the

jurors that "[y]ou have that video and you'll be able to see it."

Counsel accordingly focused his closing on the testimonial

evidence that gave the video its significance. He repeatedly

emphasized that there was "no policy" governing use of the shield,

that the KT move was the first time in Bourget's ten years at FMC

Devens that he had used the shield in a forced cell move, and that

the absence of training was "of vital importance" to this case.

Counsel's shorthand for these points was: "Told and not taught."

He also contended that the decision to undertake the forced cell

move "comes from above," and the decision to use the shield "comes

16 The majority's own sufficiency analysis confirms that an

officer's training is probative of willfulness under § 242. In

rejecting Bourget's sufficiency challenge, the majority relies on "competing evidence as to how officers were trained and how much

force should have been used in this circumstance under that

training," and cites the Eleventh Circuit's decision in United

States v. Hill, 99 F.4th 1289, 1307 (11th Cir. 2024), for the

proposition that "where the officer's actions so obviously violate his training on the use of force, a jury may infer that the

violation was willful." Logically, the converse follows: if an

officer's departure from his training may support an inference of willfulness, evidence that Bourget understood his conduct to be

consistent with his training supports the opposite inference.

- 50 -from up higher." Once the forced cell move was ordered, counsel

argued, the officers "have to follow the order" and "have to go in

at full speed." Later in his closing, counsel made clear what

following that order meant: Bourget had to enter the cell at "full

speed, full force," whether the inmate was "cuffed" or "uncuffed,"

because "that's what [officers are] told and that's how they have

to do it." Counsel also expressly noted that Bourget "did not go

in with a shield" in the Sion forced cell move. Counsel ultimately

tied these points directly to the issue of intent, stating that

Bourget "went in with a shield, something he wasn't trained on,

told to go full speed, and that's what he did." The prosecution

itself described defense counsel's repeated contention during

closing argument that officers were required to enter at "a hundred

percent full speed" as "[o]ne of the most important things" and

"the difference in this case more than anything else."

Bourget presented the same defenses at the second trial,

but without the jury having seen the Sion video, much less having

it in the jury room during deliberations. In his opening statement

to the jury, defense counsel represented that the BOP "didn't offer

training, they didn't show how to use [the shield], and they

thr[ew] these officers in this situation without any how-to."

Counsel again stressed in closing that Bourget had "no training on

that shield, none. Zero," and that, once a forced cell move was

authorized, officers were required to enter "forcefully, full

- 51 -speed, a hundred percent." Counsel argued that "upon entry into

that cell, it's full force, full speed," and emphasized that there

were "11, 12 hundred pounds behind . . . Bourget as he went in

[KT's cell], pushing him through like a train." Counsel expressly

tied the supervisory and training failures to Bourget's state of

mind, stating that the officers were "thrown in the situation,"

"given a tool that they're not instructed or taught on and told,

Go do it," and then "blame[d] . . . if something goes wrong."

That, counsel argued, was "not willfulness" but "lack of knowing."

The prosecution likewise treated these issues as part of the

dispute over the element of willfulness. It informed the jury

that it would focus most of its closing on "the defendant's

willfulness" and argued that even if "there's no specific BOP

policy on the shield," even if Bourget "had no hands-on training

on the shield," and even if "the supervisors made all the decisions

to do the move and use the shield," "it was still a crime for

Bourget to use excessive force." In rebuttal, the prosecutor

characterized as "the primary argument in this case" the defense's

contention that officers conducting a forced cell move were

instructed to enter at "full speed and full force."

The excluded Sion video would have reinforced the

defense's theory that KT's injuries were not the product of

Bourget's willful intent to violate KT's rights, but instead

resulted from decisions by Bourget's BOP superiors to send a

- 52 -five-officer team into KT's cell during the forced cell move, to

authorize use of the shield with Bourget as the lead man, and to

do so without adequately training him how to use the shield in

that role. There is no doubt that Bourget made these arguments at

the second trial. But argument was no substitute for the excluded

evidence. The jury was expressly instructed that "[a]rguments and

statements by lawyers are not evidence" and that it was to decide

the case "solely on the evidence received during the trial." The

excluded Sion video would have allowed the jury to see for itself

how Bourget had previously performed the number one role in a

forced cell move and to assess whether his conduct toward KT

reflected willful intent or, as he argued, his application of a

familiar entry method with a tool on which he had received no

hands-on training. Seeing is believing.

The Sion video was not, as the majority concludes,

"merely repetitious" or cumulative of the officers' testimony

about their training.17 See United States v. Ross, 171 F.4th 522,

17 The majority overreads United States v. García-Sierra, 994

F.3d 17 (1st Cir. 2021), in treating the officers' testimony as

diminishing the Sion video's probative value. There, the challenged evidence had only "marginal permissible relevance,"

id. at 32, and we noted that the government had introduced "ample evidence establishing" the same fact "apart from" that evidence,

such that the "independent evidence . . . undermined [its]

marginal value," id. at 33. Here, the officers' general testimony described the instruction to enter a cell at full speed; it simply could not show what the Sion video did: how Bourget himself, as

the number one officer, actually carried out such an entry.

- 53 -531 (1st Cir. 2026) ("[P]hotos and videos convey a pictorial

accuracy and detail that words cannot duplicate and that advocates

cannot spin." (quoting United States v. Long, 92 F.4th 481, 486

(3d Cir. 2024))); cf. United States v. Shows Urquidi, 71 F.4th

357, 374 (5th Cir. 2023) (concluding that critical photographic

evidence was not cumulative because it "provided support to witness

testimony"). Nor did the video's relevance depend on whether

Bollinger used it specifically to train officers on how to conduct

a forced cell move. Quite apart from its use in training, the

video demonstrated exactly what Bourget himself had done

previously as the lead man in an earlier forced cell move:

"forcefully lowering his shoulder into the unresisting Sion at

full speed and launching him into a wall." Bollinger later used

the video in BOP's annual training and agreed that the use-of-force

team had done an "excellent job." The record also showed that

Bourget completed all four days of that year's annual refresher

training, permitting a reasonable jury to find that he saw the

Sion video during that training.18 That evidence strongly

supported Bourget's argument that he understood his conduct in the

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

18

F.4th 1, 73 (1st Cir. 2023), is misplaced. There, in explaining

why evidence concerning USC's donation acknowledgment practices

provided only "indirect support" for Wilson's asserted state of

mind, we emphasized that Wilson did not contend that he was aware of those practices when he filed his tax return. Id. Here, by

contrast, the evidence permitted the jury to find that Bourget had seen the Sion video in annual training before the charged conduct.

- 54 -Sion move to have been approved by his supervisors and that he

acted consistently with that understanding during the KT forced

cell move, rather than with an intent to violate KT's Eighth

Amendment rights.19

The Sion video was also relevant to the jury issue of

whether the later explanations by Bourget's superiors and other

BOP officials, including the explanations relied on by the district

court to justify exclusion, were tainted by their own self-interest

in avoiding blame. Captain Bollinger and Heidy Baez-Patino, the

Assistant Correctional Services Administrator for the Central

Office of the Bureau of Prisons, were allowed to testify as to

their version of the protocols regulating use of force at FMC

Devens. The Sion video would have provided the second jury with

a visual record against which it could evaluate those witnesses'

descriptions of proper use-of-force procedures. In particular, if

the jury found that the video depicted Bourget acting consistently

with the practices that were approved by his supervisors, it could

19 The government contends that Bourget forfeited any

argument that the Sion video showed a "typical use of force" or

would "adjust the jury's expectations" because he did not make

those points before the district court. The record is to the

contrary. Bourget argued that "[t]he Sion video is used each year in the annual training by the captain, who is one of the

government's witnesses, . . . as essentially the way to do a proper forced cell move" and that the video showed "how the forced cell

moves at FMC Devens are conducted." Those arguments squarely presented the substance of the points the government now claims

were forfeited.

- 55 -question Bollinger's attempt to characterize the video as relevant

only to the transition between levels of force. The video thus

bore directly on the credibility of the government's witnesses.

The government, and now the majority, place considerable

weight on the differences between the Sion forced cell move and

the KT forced cell move, including that no shield was used in the

Sion move, Sion was not restrained, additional measures were used

before officers entered Sion's cell, and the two forced cell moves

were undertaken under some different circumstances. But those

differences did not render the Sion video irrelevant to Bourget's

state of mind. Indeed, some of them reinforced the defense's

theory. Lieutenant Lyons testified that, during a calculated use

of force, the speed of the officers' entry into a cell does not

change depending on whether the inmate is handcuffed: the officers

enter at "[f]ull speed" regardless. And the absence of a shield

in the Sion move was central to Bourget's argument because he had

received no hands-on training on the shield's use. The Sion video

illustrates the speed that Bourget had used, and was approved to

use, in an earlier forced cell move at FMC Devens, and shows

Bourget applying force with both arms and his chest to drive the

prisoner against the wall and into a handrail before tackling him

to the floor and landing on top of him with his full body weight.

The similarities between the Sion and KT moves easily gave the

video "any tendency" to make it less probable that Bourget acted

- 56 -with the specific intent to violate KT's Eighth Amendment rights.

Fed. R. Evid. 401. For purposes of Rule 401, the differences

emphasized by the government and the majority went to the weight

the jury might give that inference, not whether the video was

relevant at all. See United States v. Mehanna, 735 F.3d 32, 65

(1st Cir. 2013) (rejecting a challenge to the evidence's

admissibility based on a competing inference because jurors may

"choos[e] among reasonable but competing inferences extractable

from proven facts"); United States v. Weadick, 15 F.4th 1, 18-19

(1st Cir. 2021) (holding that evidentiary weaknesses bearing on

the inference to be drawn "go to the weight of the evidence, not

to its admissibility"). Yet, without the Sion video, the jury

never had the opportunity to make that assessment for itself.

To the extent the district court viewed the Sion video's

relevance to Bourget's intent as turning on whether the video's

use in annual training signaled that his supervisors approved

Bourget's manner of entry and use of force, Rule 104(b) required

the court to ask only whether a reasonable jury could find that

conditional fact by a preponderance of the evidence.20 In United

States v. Trenkler, 61 F.3d 45, 53 (1st Cir. 1995), we held:

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

20

relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does

exist. The court may admit the proposed evidence on the condition that the proof be introduced later." Fed. R. Evid. 104(b).

- 57 -[I]n determining whether the Government has

introduced sufficient evidence to meet

Rule 104(b), the trial court neither weighs

credibility nor makes a finding that the

Government has proved the conditional fact by

a preponderance of the evidence. The court

simply examines all the evidence in the case

and decides whether the jury could reasonably

find the conditional fact . . . by a

preponderance of the evidence.

(omission in original) (quoting Huddleston v. United States, 485

U.S. 681, 690 (1988)). Importantly, as the Advisory Committee

that drafted the proposed Rules explained, "[i]f preliminary

questions of conditional relevancy were determined solely by the

judge . . . the functioning of the jury as a trier of fact would

be greatly restricted and in some cases virtually destroyed. These

are appropriate questions for juries." Fed. R. Evid. 104 advisory

committee's note to subdivision (b). The Sion video easily cleared

Rule 104(b)'s threshold. Bollinger's testimony that he showed the

Sion video principally to illustrate transitions between levels of

force did not foreclose the separate inference favorable to

Bourget's defenses that Bollinger's use of the video in annual

training without criticism or even comment on Bourget's manner of

entry, coupled with Bollinger's agreement that the use-of-force

team in the video had done an "excellent job," signaled approval

of Bourget's actions as the lead officer. See United States v.

Giang, 174 F.4th 196, 205 & n.4 (1st Cir. 2026) (holding under

Rule 104(b) that arguments about whether the evidence supported

- 58 -the proposed inference went "to the weight of that evidence, not

its admissibility," id. at 205, and explaining that the fact

"[t]hat the evidence was subject to multiple plausible

interpretations [was] no reason to exclude it," id. at 205 n.4).

The district court here resolved for itself the very competing

inference that Rule 104(b) reserves for the jury. It was also the

jury's, not the district court's, role to evaluate "information as

to bias" and "assess the credibility of" Bollinger and Bourget's

other supervisors. Udemba v. Nicoli, 237 F.3d 8, 17 (1st Cir.

2001); see also Trenkler, 61 F.3d at 53. The district court did

not leave the issue of the credibility of the explanations offered

by Bourget's superiors to the jury, though those witnesses had

incentives to defend the adequacy of BOP's training and practices

and to place blame on Bourget.

The reasons why the Sion video is highly relevant also

factor into the Rule 403 analysis. The Supreme Court and our

decisions have recognized that "[t]he Constitution guarantees

criminal defendants 'a meaningful opportunity to present a

complete defense.'" Nevada v. Jackson, 569 U.S. 505, 509 (2013)

(quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)); see also

United States v. Coleman, 149 F.4th 1, 34 (1st Cir. 2025) (same),

cert. denied, No. 25-6945, 2026 WL 1855071 (U.S. June 29, 2026).

That guarantee does not "trump valid rules of evidence." Coleman,

149 F.4th at 34 (quoting United States v. Pires, 642 F.3d 1, 14

- 59 -(1st Cir. 2011)). Yet Rule 403 permits a court to "exclude

relevant evidence" only "if its probative value is substantially

outweighed by a danger of . . . unfair prejudice, confusing the

issues, [or] misleading the jury." Fed. R. Evid. 403 (emphases

added).21 And "[w]hen proffered evidence relates to the central

issue in a case," as here, "it is a difficult matter indeed to

show that the prejudicial effect of that evidence substantially

outweighs its highly probative nature, as Rule 403 requires."

United States v. Soler-Montalvo, 44 F.4th 1, 18 (1st Cir. 2022)

(quoting Rubert-Torres v. Hosp. San Pablo, Inc., 205 F.3d 472, 479

(1st Cir. 2000)). Although our review of the district court's

Rule 403 ruling is indeed deferential, "[a]n error of law qualifies

as an abuse of discretion." Lech v. von Goeler, 92 F.4th 56, 64

(1st Cir. 2024).

In excluding the Sion video, the district court

erroneously found that

the probative value is substantially

outweighed by any dangerous -- danger of

confusion or unfair prejudice, confusion to

the jury for the reasons I've stated before,

also, to the extent that it's delving into any

suggestion of prior good acts. And I know

that Mr. Bourget was the first man on that

team.

21 Federal Rule of Evidence 403 also identifies "undue delay,

wasting time, or needlessly presenting cumulative evidence" as

grounds for exclusion. Fed. R. Evid. 403. The government did not

argue for exclusion on any of those grounds, and the district court did not rely on any of them in its Rule 403 ruling.

- 60 -Neither asserted danger justified exclusion under Rule 403.

As to prejudice, the government argued to the district

court only that the Sion video was evidence of "other acts -- good

acts offered to show that he didn't commit the crime on this

particular occasion." But that was not the basis on which the

video was offered by the defense and misstated the issues. Any

harm to the prosecution's case flowed from the video's legitimate

probative force, not any unfair prejudice. See United States v.

Ross, 171 F.4th 522, 529 (1st Cir. 2026) ("In balancing the scales

of Rule 403, it is important to note that only unfair prejudice is

to be avoided, as, by design, all evidence is meant to be

prejudicial." (citation omitted)); Bergus v. Florian, 120 F.4th

14, 25-26 (1st Cir. 2024) (holding that evidence was not unfairly

prejudicial where the opposing party offered no reason it would

"serve[] only to evoke an improper emotional response" or that any

prejudice "substantially outweighed" its probative value).

Nor did the Sion video pose a substantial danger of

confusing the issues or misleading the jury. A "forced cell move"

at high speed and one hundred percent effort by a team of five

guards necessarily involves the use of force. Bourget was selected

by his superiors to lead the entry into KT's cell, with four other

officers charging in at full speed immediately behind him,

including one who stood six feet nine inches tall and weighed 315

pounds. Those decisions, as well as the decisions to conduct the

- 61 -forced cell move and to equip Bourget with the shield, were made

by his superiors. The Sion video showed what a full-speed entry

by Bourget as the number one officer actually entailed, including

the force with which he made initial contact with the inmate.

Bourget bore no burden to produce other training videos

or otherwise disprove willfulness. The government bore the burden

of proving that element beyond a reasonable doubt. If the

government knew of other relevant training videos that it believed

would show the Sion video to be aberrational or otherwise undermine

the inference Bourget sought to draw from it, it could have sought

to introduce those videos.

The majority relies on the district court's familiarity

with the first trial to justify greater deference to its Rule 403

ruling. But that familiarity cuts against, rather than supports,

exclusion of the Sion video.22 The first trial showed that the

asserted risk of confusion could be addressed without excluding

the video. When the government objected to a portion of the

recording that did not involve Bourget, the court directed defense

counsel to move forward in the video. On redirect, the government

elicited that Sion, unlike KT, was unrestrained and that Bollinger

had used the video to illustrate transitions among

It is noteworthy the district court did not rely on the

22

government's stated reasons for excluding but rather on reasons

not offered at all by the government.

- 62 -less-than-lethal options rather than to illustrate Bourget's

conduct. At the retrial, the district court could have employed

those same measures to address any residual risk of confusion and,

if necessary, given an appropriate limiting instruction. See

United States v. SpineFrontier, Inc., 160 F.4th 212, 225 (1st Cir.

2025) (explaining that "a jury instruction may adequately limit

the risk of jury confusion" and that "less-onerous mechanisms may

be available to address any prejudice"); see also Bergus, 120 F.4th

at 27-28 (noting that "the district court likely could have

mitigated the potential for unfairness by providing an appropriate

limiting instruction if requested"). The differences between the

Sion and KT incidents were matters for cross-examination and

argument and did not justify excluding the video altogether.

Although at Bourget's second trial the district court

recited the phrase "substantially outweighed," it identified no

unfair prejudice beyond the video's legitimate probative force.

Nor did the court identify any substantial danger of confusing the

issues or misleading the jury that could not have been mitigated

through cross-examination, argument, and, if appropriate, a

limiting instruction. See United States v. Soler-Montalvo, 44

F.4th 1, 19 (1st Cir. 2022) (holding that the district court

"needed to explain why the highly probative value of the evidence

was so 'substantially outweighed' by the risks of confusing or

misleading the jury that the testimony should have been excluded

- 63 -wholesale" (quoting Fed. R. Evid. 403)). The district court's

wholesale exclusion of the Sion video, which was central to

Bourget's defense at both of his trials, simply cannot be

reconciled with Rule 403. We have reversed for far less.

II. The Effect of the Exclusion is Far from Harmless

These errors were not harmless. On this record, we

cannot say "it is 'highly probable' that the error[s] did not

contribute to the verdict." United States v. Villa-Guillen, 102

F.4th 508, 519 (1st Cir. 2024) (quoting United States v. Kilmartin,

944 F.3d 315, 338 (1st Cir. 2019)). "To evaluate the probable

impact of erroneously excluded evidence on the verdict, we consider

'[t]he centrality of the evidence, its prejudicial effect, whether

it is cumulative, the use of the evidence by counsel, and the

closeness of the case.'" Bergus, 120 F.4th at 24 (quoting Lech,

92 F.4th at 64). Those considerations uniformly favor Bourget.

At the second trial, the jury deliberated over portions of three

days and, after "continued deliberation and thorough review of the

evidence," reported that it was "unable to come to any unanimous

decision." Only after receiving an Allen charge and deliberating

for roughly three more hours did it return a guilty verdict. The

Sion video was central to Bourget's defense, noncumulative of the

general training testimony from Bollinger and others, and uniquely

capable of allowing the jury to assess both Bourget's prior conduct

and Bollinger's explanation for using the Sion video in training.

- 64 -Circuit precedent requires we reverse the exclusion of

evidence here. This court routinely reverses where the district

court erroneously excluded evidence highly relevant to a

defendant's primary defense. For example, in Soler-Montalvo, an

appeal from a conviction for enticing a minor, the district court

had erroneously excluded defense expert testimony about "the

difference between a desire to actually engage in sexual activity

with a minor and mere fantasy and role-playing related to sexual

contact with children." 44 F.4th at 11. We held the error was

not harmless because the "key issue in the case" was whether the

defendant believed the undercover agent with whom he was

communicating was thirteen years old, the defendant's "role-play

defense turned almost exclusively on the credibility of his

testimony," and the excluded expert testimony "could have provided

substantial support to [the defendant's] credibility in claiming

that he truly believed [the purported minor's identity] was just

an assumed identity of another consenting adult." Id. at 19. In

Lech, an appeal from a verdict finding defendants not liable on

claims arising from the medical care of an incarcerated plaintiff,

we held that the district court's erroneous exclusion of

"corroborating testimony from the sole person who visited" the

plaintiff at the correctional facility was not harmless as to some

of the defendants. 92 F.4th at 70-72. We reasoned that "the case

centered on a credibility battle" and that the excluded evidence

- 65 -would have rebutted "[t]he theme that [the defendants in question]

revisited at opening, at closing, in their cross-examination of

[the plaintiff], and with virtually every fact witness . . . that

the medical providers' account, not [the plaintiff's], was

believable." Id. Under Soler-Montalvo and Lech, we cannot say

with the required confidence that the district court's exclusion

of the Sion video did not affect the verdict.

Circuit precedent also requires reversal for another

reason. Lengthy jury deliberations combined with a jury note

indicating deadlock also "weigh against a finding of harmless

error." United States v. Varoudakis, 233 F.3d 113, 126 (1st Cir.

2000); see also id. at 126-27 ("[T]he three-day length of the jury

deliberations, and the jury's note to the trial court that it was

'at an impasse' at the end of the second half-day, weigh against

a finding of harmless error" because "[l]engthy deliberations

suggest a difficult case" and the impasse note "reveal[ed]

uncertainty about [the defendant's] guilt."); cf. United States v.

de Jesus-Rios, 990 F.2d 672, 679 (1st Cir. 1993) (concluding under

constitutional harmless error review the error was not harmless

because "there [wa]s no way for us to discern the role that [the

error] played in the jury's deliberations"). The contrast with

the first trial sharpens the point.23 The trials were not

23The Sion video most certainly did not hurt Bourget in the

first trial, at which he was acquitted on one count. There was

- 66 -identical, and the first jury's failure to reach a verdict does

not establish that exclusion of the Sion video caused the different

outcome. But the jury that saw the video was unable to reach a

verdict on the same charge, making it still harder to say with the

required confidence that excluding the video from a second trial

in which the jury itself reached an impasse had no effect on the

verdict.

I respectfully dissent.

good reason his counsel chose to offer it at the second trial.

What inferences to draw from the video were for the jury, not the trial judge, to decide. See United States v. Abbas, 100 F.4th

267, 281 (1st Cir. 2024) (holding that "'the jury was entitled to come to whatever rational conclusion it saw fit based on the

evidence' before it" (quoting United States v. Buoi, 84 F.4th 31, 38 (1st Cir. 2023))).

- 67 -