“Traceable” Proceeds, Zero-Point Offenders, and Sentencing Disparity: A Comprehensive Commentary on United States v. Robertson (1st Cir. Dec. 19, 2025)

I. Introduction

United States v. Robertson is a sprawling First Circuit decision arising from a multi-year overtime fraud scheme within the Massachusetts State Police’s Traffic Programs Section (TPS). Two senior officers—Lieutenant Daniel Griffin and Sergeant William Robertson—were convicted of federal program theft, wire fraud, and conspiracy for systematically overstating overtime worked on federally funded traffic safety initiatives and encouraging subordinates to do the same. Griffin also pled guilty to separate tax fraud involving his private security business and to wire fraud in connection with private school financial aid for his children.

After a long jury trial and extensive sentencing proceedings, both defendants launched what the court aptly called a “mega-appeal,” challenging:

• the constitutionality of the federal wire fraud and federal program theft statutes as applied;
• the sufficiency of the evidence;
• numerous Sentencing Guidelines determinations (loss amount, enhancements, grouping, and the “zero-point offender” reduction);
• their prison terms as unwarrantedly disparate from other Massachusetts police overtime cases; and
• restitution and forfeiture orders, especially a large forfeiture tied to private school financial aid.

The First Circuit:

• rejected almost all challenges and affirmed both convictions and sentences;
• but vacated and remanded Griffin’s forfeiture order tied to private school financial aid, holding the government had not adequately proven that the full amount of aid was “traceable to” his fraud as required by forfeiture statutes.

In doing so, the court:

• clarified the waiver rules for late-raised constitutional challenges under Criminal Rule 12(b)(3);
• joined the national consensus on interpreting the “zero-point offender” Guideline, U.S.S.G. § 4C1.1, in light of the Supreme Court’s decision in Pulsifer v. United States;
• reaffirmed broad wire fraud liability for co-schemers where use of the wires by others is reasonably foreseeable;
• explained the evidentiary demands for sentencing disparity arguments under 18 U.S.C. § 3553(a)(6); and
• insisted on a careful, evidence-based determination that assets ordered forfeited are actually “traceable to” the offense, especially where some portion may have been obtainable legitimately.

This commentary analyzes those doctrinal developments, situates them in existing law, and discusses their practical implications for federal fraud prosecutions, sentencing practice, and forfeiture litigation.

II. Summary of the Opinion

A. Factual and Procedural Background

• The TPS overtime scheme. TPS administered federal Department of Transportation grant funds for highway safety programs, including:
  • 8-hour sobriety checkpoint overtime shifts (often 8 p.m.–4 a.m.); and
  • 4-hour traffic enforcement “safety” shifts (seatbelt, distracted driving, etc.).
  Griffin (TPS commander) and Robertson (second-in-command) routinely:
  • started shifts late and left early but billed the full 4 or 8 hours;
  • “pyramided” shifts by starting federally funded enforcement before the end of their regular duty day, effectively double-dipping; and
  • encouraged subordinates to do the same, using coded radio cues (“move to another location”) to signal early departure.
• Destruction of TPS records. When rumors surfaced about other MSP overtime investigations, Robertson ordered Trooper Dennis Kelley to shred TPS billing forms (“637s”) that documented grant-funded overtime. Kelley complied and later, on his own, burned additional records at home. Robertson’s directive became powerful proof of consciousness of guilt and leadership.
• Investigation. A Department of Transportation OIG agent pulled together:
  • Paystation payroll records,
  • grant forms (636, 637, 638),
  • fuel usage data,
  • cruiser radio-affiliation (location/timing) data, and
  • ticketing records,
  revealing systematic “loss hours” (overtime billed but not worked) between 2015–2017.
• Griffin’s “side hustles.” Separate investigations uncovered:
  • Tax fraud through his security company KNIGHTPRO (underreported ~$700k in income; improper personal expenses written off as business costs; ~$186k in unpaid tax).
  • Private school financial aid fraud. Griffin repeatedly understating income on Belmont Hill School (BHS) applications, yielding ~$176–177k in tuition aid over 7 years.
  • Grant double-dipping. Griffin charged MSP (funded by federal grants) for travel/training expenses that had already been paid by KNIGHTPRO, misrepresenting them as out-of-pocket.
• Charges and trial.
  • Both defendants were indicted for:
    • Conspiracy to steal from programs receiving federal funds (18 U.S.C. § 371);
    • Theft from federal program (18 U.S.C. § 666(a)(1)(A)); and
    • Wire fraud (18 U.S.C. § 1343) tied to TPS overtime.
  • Griffin alone was charged with:
    • additional wire fraud counts related to BHS financial aid; and
    • filing false tax returns related to KNIGHTPRO.
  • On the eve of trial, Griffin pled guilty to the BHS and tax counts.
  • After an 11‑day trial with 25 witnesses, both defendants were convicted on all contested counts. Motions for acquittal were denied at all appropriate stages.
• Sentences and monetary penalties.
  • Griffin:
    • Guidelines: total offense level 25, CHC I → range 57–71 months.
    • Sentence: 60 months’ imprisonment, 3 years’ supervised release.
    • Restitution: $329,163.77 (approx. $142,775 to DOT; $186,389 to IRS).
    • Forfeiture: $239,796.75 (most tied to BHS financial aid).
  • Robertson:
    • Guidelines: total offense level 21, CHC I → range 37–46 months.
    • Sentence: 36 months’ imprisonment, 3 years’ supervised release.
    • Restitution: $142,774.77 to DOT, joint and several with Griffin.
    • Forfeiture: $32,180.50.

B. Holdings in Brief

• As-applied vagueness challenge waived. Defendants’ mid-trial constitutional attack on wire fraud and § 666 as unconstitutionally vague (due to alleged ambiguity about block overtime billing) was governed by Fed. R. Crim. P. 12(b)(3) and waived because it was not raised by pretrial motion and no “good cause” was shown. No plain error review applied.
• Sufficiency of evidence. The evidence easily supported Robertson’s convictions, including:
  • proof of fraudulent intent (subordinates’ testimony, coded communications, document destruction); and
  • wire fraud liability as part of a joint scheme, even for wires that credited only Griffin’s account.
• Guidelines for Robertson upheld. The court affirmed:
  • denial of zero-point offender reduction under § 4C1.1(a)(10);
  • a 2-level leadership role enhancement under § 3B1.1(c);
  • a 2-level abuse of trust enhancement under § 3B1.3; and
  • an obstruction enhancement (unchallenged on appeal) based on ordering document destruction.
• Guidelines for Griffin upheld.
  • Use of “gain” (total BHS aid received) as a proxy for “loss” in Guidelines § 2B1.1 loss calculations was permissible, given Griffin’s failure to prove what portion was legitimately obtainable.
  • TPS fraud counts and BHS wire fraud counts were correctly grouped under § 3D1.2(d) as all governed by § 2B1.1, following United States v. Zanghi.
• Sentences upheld despite claimed disparities.
  • Both defendants’ § 3553(a)(6) disparity arguments failed because:
    • Robertson supplied too little comparative information to establish “apples-to-apples” comparability with other troopers;
    • Griffin’s more developed comparators were materially distinguishable (additional charges, leadership role, tax and school fraud, lack of cooperation, etc.).
  • The panel nonetheless expressed discomfort with the district court’s dismissive tone toward defense disparity arguments, admonishing that comparative analysis is part of the sentencing judge’s job.
• Restitution affirmed. The district court acted within its broad discretion under the MVRA by:
  • imposing joint and several restitution of ~$142,775 on both defendants; and
  • declining to investigate speculative possibilities of prior recovery or to apportion restitution between co-conspirators.
• Forfeiture partially vacated. The court vacated Griffin’s forfeiture to the extent based on BHS financial aid, holding the government had not proven by a preponderance that the full aid amount was “traceable to” the wire fraud. The case was remanded for a narrower forfeiture determination, if any, based on evidence of what portion of aid was actually obtained because of the misrepresentations.

III. Analysis of the Court’s Reasoning

A. Waiver of the As-Applied Vagueness Challenge Under Rule 12(b)(3)

1. Do vagueness attacks fall under Rule 12(b)(3)?

Griffin and Robertson argued, mid-trial, that the federal program theft statute (18 U.S.C. § 666) and wire fraud statute (18 U.S.C. § 1343) were unconstitutionally vague as applied because neither statute nor MSP practice gave them fair notice that billing in fixed overtime blocks rather than exact hours was criminal.

The First Circuit assumed, consistent with its recent decisions in United States v. Cardona (vagueness) and United States v. Turner (as-applied Second Amendment challenge), that such non-jurisdictional constitutional attacks fall within Rule 12(b)(3):

Motions that must be made before trial include those that “challenge[] a defect in the indictment or information,” where “the basis for the motion is then reasonably available and the motion can be determined without a trial on the merits.” (Fed. R. Crim. P. 12(b)(3).)

Because the defendants did not contest the government’s premise that Rule 12(b)(3) applied, the panel “assume[d] that his motion is covered by that provision” (citing Cardona).

2. Good cause and the harsh consequence of noncompliance

Rule 12(c)(3) allows late Rule 12(b)(3) motions only on a showing of “good cause.” Here:

• Defendants did not raise vagueness before the 2023 pretrial motion deadline.
• They first raised it at the close of the government’s case.
• They offered no explanation for the delay.

The court held that absent good cause, the objection was waived, not merely forfeited, and thus:

• the issue was not reviewable even for plain error on appeal (following Cardona and Reyes); and
• their constitutional attack on the statutes simply “drops out” of the appeal.

Doctrinal significance. The decision reinforces a strong, bright-line procedural rule in the First Circuit: constitutional defenses that fit within Rule 12(b)(3)’s ambit (including as-applied vagueness and certain Second Amendment challenges) must be brought by pretrial motion, or they are irrevocably waived in the absence of good cause. Defense counsel cannot expect plain-error “safety net” review for such late attacks.

B. Sufficiency of the Evidence and Scope of Wire Fraud Liability

1. Evidence of fraudulent intent (Robertson)

Robertson argued that, in light of ambiguous MSP overtime customs and his subordinate status to Griffin, the government had not proven he acted with intent to defraud or steal.

Applying standard de novo sufficiency review (viewing evidence in the light most favorable to the verdict), the court emphasized:

• Troopers under Robertson’s supervision repeatedly testified they:
  • knew it was wrong to leave early and bill the full shift;
  • knew pyramiding and double-dipping on federal grants were forbidden; and
  • followed Griffin’s and Robertson’s directions anyway.
• MSP and TPS leadership witnesses testified that:
  • federal grant ISAs required actual hours worked;
  • pyramiding was expressly prohibited;
  • federal monies carried stricter documentation and accuracy expectations;
  • documents had to be retained for six years.
• Code phrases on the radio (“move to another location”) were used to conceal the early departure from troopers outside TPS.
• Most damningly, Robertson ordered Kelley to shred grant billing records at the height of the MSP overtime scandal, and reacted “Good” when Kelley later admitted having burned more documents.

The court treated this last fact as nearly dispositive of intent: post-offense cover-ups are classic evidence of prior guilty knowledge and intent (“later events often may shed light on earlier motivations,” citing Rodriguez).

The panel firmly rejected what it dubbed Robertson’s “Nuremberg defense”—the idea that “just following orders” from a superior can undercut criminal responsibility. That some subordinates recognized the wrongdoing undermined any claim that a sergeant with decades of experience innocently misunderstood his obligations.

2. Wire fraud liability for co-schemers (Counts involving only Griffin’s pay)

Robertson also argued that he could not be convicted of the wire fraud counts tied to electronic payments that went exclusively into Griffin’s bank account, especially because he neither entered nor approved Griffin’s time in the Paystation system.

The court clarified that under settled First Circuit wire fraud doctrine:

• The government need only show:
  • the defendant knowingly and willfully participated in a scheme to defraud; and
  • use of interstate wires was a reasonably foreseeable part of that scheme, not necessarily executed by the particular defendant.
• Personal use of the wires is unnecessary; it is sufficient that the defendant caused or could “reasonably anticipate” wire use in furtherance of the scheme (citing Tum and Fermin Castillo).

Because:

• Robertson personally participated in the TPS overtime fraud over multiple years;
• the same Paystation system was used by both him and Griffin to submit inflated hours for the same shifts; and
• the payment of fraudulent overtime to all TPS troopers via electronic payroll was the core objective of the scheme,

the jury could reasonably find Griffin’s wires were “a reasonably foreseeable part of the scheme in which [Robertson] participated.” That sufficed to sustain the convictions on those counts, without reaching any “aiding and abetting” theory.

Practical takeaway. Participants in a collective fraud scheme can be held liable for wire fraud counts linked to co-schemers’ payments whenever use of the wires to accomplish the scheme is reasonably anticipated—even if the defendant did not personally execute or approve the specific electronic transmission at issue.

C. Guidelines Issues for Robertson

1. The zero-point offender reduction and the meaning of “and” in § 4C1.1(a)(10)

Robertson sought a 2‑level “zero-point offender” reduction under U.S.S.G. § 4C1.1, which (in the 2023 version applicable at his sentencing) provided a reduction if the defendant met 10 listed criteria, including:

“the defendant did not receive an adjustment under § 3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise.” (§ 4C1.1(a)(10) (2023) (emphasis added))

Because Robertson did receive a leadership enhancement under § 3B1.1, the probation office’s final PSR withdrew the zero-point reduction, and the district court agreed. Robertson argued that:

• “and” should be read conjunctively as two cumulative disqualifiers; thus he would be ineligible only if he both:
  • had an aggravating role, and
  • was engaged in a continuing criminal enterprise under 21 U.S.C. § 848,
• so, absent the latter, he remained eligible.

The First Circuit rejected this reading, joining a growing consensus of other circuits (Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Eleventh). It reasoned:

• Section 4C1.1(a) operates as an “eligibility checklist”: the defendant must satisfy all listed conditions to obtain the reduction.
• Subsection (a)(10) thus means: “If the defendant did not receive a leadership enhancement and did not engage in a continuing criminal enterprise, he may qualify.”
• Failure to satisfy either half of (a)(10) (i.e., having an aggravating role or being in a continuing criminal enterprise) destroys eligibility.

The court leaned heavily on the Supreme Court’s decision in Pulsifer v. United States, which confronted a similar “and”-linked list of disqualifying criminal history factors in 18 U.S.C. § 3553(f)(1). There, the Court held:

• The safety-valve provision disqualified defendants if they had any of the listed criminal history markers; “and” did not require the government to prove all three.
• “And” could syntactically be read either way, but statutory context and structure showed the list was cumulative criteria a defendant had to not satisfy.

The Sentencing Commission’s 2024 amendment splitting § 4C1.1(a)(10) into two separate subsections (a)(10) and (a)(11), and expressly stating the intention that either disqualifier suffices, reinforced the court’s reading of the 2023 text.

2. Law of the case and co-defendant disparity arguments rejected

Robertson asserted two fairness-based objections:

1. Law of the case. Griffin’s PSR and sentencing had treated him as eligible for the zero-point reduction, and the district court had not disturbed that finding, so Robertson argued the court was bound to apply the same law to him.
2. Unwarranted disparity. Denying the reduction to Robertson but allowing it to Griffin (with similar records) created an unjustified disparity between co-defendants.

The First Circuit rejected both:

• Law of the case. The doctrine does not bind a court to its own prior rulings when there has been an intervening change or clarification in the law. Here:
  • the Supreme Court’s Pulsifer decision issued between Griffin’s PSR and Robertson’s;
  • the probation office amended Robertson’s PSR accordingly; and
  • the government raised Pulsifer at Griffin’s sentencing, previewing its reliance at Robertson’s.
  Under Holloway, such intervening authority justified revisiting prior assumptions; the court was not bound to repeat an earlier mistake.
• Disparity. Sentencing must be based on the Guidelines applicable “on the date the defendant is sentenced” (18 U.S.C. § 3553(a)(4)(A)(ii)). That another defendant earlier received a windfall under a misreading of the law does not entitle later defendants to replicate the error. Numerous circuits have rejected “two wrongs make a right” arguments in similar contexts.

Net effect. This part of the opinion is important precedent in the First Circuit:

• Pulsifer controls the reading of “and” in § 4C1.1(a)(10); either a leadership enhancement or a continuing criminal enterprise disqualifies a defendant from zero-point status.
• District courts may, and indeed must, apply newly clarified law even if it produces discrepancies with earlier sentences in the same case.

3. Leadership enhancement (§ 3B1.1(c))

The court upheld a 2‑level leadership-role enhancement for Robertson as an “organizer, leader, manager, or supervisor” based on:

• his rank and functional role as sergeant and TPS executive officer (second-in-command);
• his involvement with Griffin in selecting “trusted” troopers to join TPS to minimize whistleblowing risk;
• testimony that:
  • Robertson taught troopers how to complete the forms; and
  • troopers submitted falsified time sheets up the chain for Robertson’s review/approval;
• his ordering Kelley, a subordinate, to destroy incriminating TPS records.

While Robertson tried to isolate the shredding incident as a purely post-offense obstructive act incapable of supporting a leadership enhancement, the court emphasized:

• Role in the offense is gauged by the whole of “relevant conduct,” not just the formal elements of the convicted offense (Fosher); and
• the district court did not rely on the shredding alone; it saw that as corroborative of broader leadership behavior.

Given evidence that Robertson exercised authority over at least one other participant in furtherance of the conspiracy, there was no clear error in finding him a manager/supervisor under Voccola.

4. Abuse of trust enhancement (§ 3B1.3)

The court also upheld a 2‑level enhancement for abuse of a position of public trust:

1. Position of trust. First Circuit precedent squarely holds that police officers occupy positions of public trust for § 3B1.3 purposes because they exercise substantial discretion (Flecha-Maldonado and earlier cases).
2. Significant facilitation or concealment. Robertson used that trust in at least two ways:
   • his role as TPS sergeant/executive officer gave him access to and control over federal grant-funded overtime allocations and documentation, which he helped manipulate and conceal; and
   • he leveraged his supervisory authority to order Kelley to destroy grant records, directly facilitating concealment.

The panel rejected Robertson’s argument that only fiduciary-like relationships qualify (reaffirming Sicher) and distinguished United States v. George, which concerned a private contractor employee’s relationship to a government agency—a distinct and more attenuated trust context.

The Commission’s commentary’s contrast between:

• a bank executive who abuses discretion in loan approvals (covered); and
• a bank teller or hotel clerk following strict routines (not covered)

helped the court frame Robertson as analogous to the bank executive, given his discretion over grant-related staffing and documentation, not a mere functionary.

D. Guidelines Issues for Griffin

1. Using “gain” as a proxy for “loss” in the BHS aid fraud (Guideline § 2B1.1)

For Griffin’s BHS financial aid fraud, the PSR treated the entire amount of aid his family received (~$176–177k over 7 years) as loss under § 2B1.1(b)(1). When Griffin objected that BHS staff could not say what portion was attributable to the misstatements, probation and the district court shifted to using the same amount as “gain” under Application Note (B):

“If there is a loss but it reasonably cannot be determined, the court shall use the gain that resulted from the offense as an alternative measure of loss.”

The court held this permissible, applying the burden-shifting framework of United States v. Alphas and United States v. Rivera-Ortiz:

1. The government may use the full face value of the fraudulent benefits (here, tuition aid) as a starting point whenever the claims are “rife with fraud.”
2. The burden of production then shifts to the defendant to show which portion would have been legitimately obtained absent fraud.
3. The government retains the burden of persuasion by a preponderance, but if the defendant’s showing is minimal or speculative, the court may reasonably conclude that the entire amount represents loss or gain.

Griffin did not propose a concrete alternative figure or methodology, instead asserting that the correct loss amount was “zero” because the government had not disaggregated the fraudulent portion. The court rejected a “zero” loss as “presumptively wrong” for a multi-year, sustained fraud and upheld the use of full gain as a reasonable proxy.

Important distinction. As discussed below, the panel later drew a sharp line between:

• using full “gain” as a rough-and-ready proxy for “loss” in Guidelines calculations (where only a reasonable estimate is required), and
• requiring more precise tracing for forfeiture orders, which directly confiscate property and must be tied to proceeds of the offense.

2. Grouping TPS and BHS fraud counts under § 3D1.2(d)

Griffin contended that TPS overtime fraud counts (DOT/MSP with federal program victims) and BHS wire fraud counts (private school victim) should not be grouped because they involved different victims, different conduct, and different harms. He argued for application of § 3D1.2(a)–(b) (same victim/transaction/common scheme) rather than § 3D1.2(d).

Section 3D1.2(d) provides that counts are grouped when:

• the offense level is determined largely on aggregate loss or harm; and
• the Guidelines list certain offenses, including all offenses under § 2B1.1 (fraud), as “to be grouped” under subsection (d).

The First Circuit relied on its prior holding in United States v. Zanghi that counts governed by Guidelines listed in the same row under § 3D1.2(d) must be grouped together. Here:

• both TPS fraud counts and BHS wire fraud counts were governed by § 2B1.1;
• commentary example 3 explicitly groups mail and wire fraud counts from different schemes where all involve monetary objectives.

The panel declined Griffin’s invitation to revisit Zanghi, noting that under the “law of the circuit” doctrine, one panel cannot overturn another absent rare circumstances not shown here.

Result: The district court correctly grouped TPS and BHS fraud counts for loss aggregation, significantly increasing Griffin’s offense level.

E. Sentencing Disparity Arguments Under § 3553(a)(6)

1. Legal framework

Section 3553(a)(6) directs sentencing courts to consider:

“the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.”

The First Circuit’s recent cases (Rodríguez‑Adorno, González‑Rivera, Romero, Freeman, Demers, Bishoff) articulate two key principles:

• A defendant must supply enough detail to permit an “apples-to-apples” comparison:
  • nature and number of counts;
  • Guidelines calculations (base offense level, enhancements, criminal history, etc.);
  • degree and duration of criminal conduct;
  • cooperation or lack thereof; and
  • other relevant distinctions (e.g., leadership role, additional unrelated crimes).
• Material differences in any of these dimensions may fully explain apparent disparities, defeating a claim of “unwarranted” disparity.

2. Robertson’s sparse comparators and the court’s admonition

Robertson furnished the district court a bare chart listing:

• names of other Massachusetts troopers in overtime fraud cases (mostly Troop E),
• docket numbers, and
• sentences (mostly probation, with a couple of short custodial terms).

He provided no details regarding:

• charging instruments (counts and statutes),
• Guidelines ranges or loss figures,
• role enhancements or abuse-of-trust findings,
• criminal histories, or
• cooperation/plea agreements.

The district judge responded somewhat sharply, stating:

• she did not have “those other cases” before her or know their evidence; and
• prior “light” treatment of other troopers did not “do us any favors.”

On appeal, the panel held:

• Procedurally, there was no error:
  • the court did acknowledge and reject Robertson’s disparity argument;
  • given his threadbare proffer, it could not meaningfully assess similarity; and
  • González‑Rivera closely controlled: sparse, “barebones” descriptions are insufficient to trigger deeper comparative analysis.
• Substantively, the court did not abuse its discretion in rejecting the disparity claim when there was no adequate comparator record to work with.

However, the panel explicitly criticized the district court’s tone, calling its comments “rather odd” and “troubling”:

• The judge “take[s] issue” with comparisons to other cases, but § 3553(a)(6) requires courts to consider disparities when defendants adequately raise them.
• Her suggestion that decades of criminal justice experience obviated the need to engage with comparator arguments was “confounding.”

While this did not amount to reversible error in light of Robertson’s inadequate proffer, the panel cautioned that such comments “should be avoided going forward lest they leave the wrong impression.”

3. Griffin’s more developed comparators and why they still failed

Griffin presented a more comprehensive disparity case:

• a multi-page chart with sentences in numerous MSP and local police overtime fraud prosecutions (mostly probation or single-digit months); and
• discussion of:
  • general similarities (overtime padding schemes, public trust, etc.); but also
  • differences: his conspiracy charge, longer time frame, a 4-level leadership enhancement, additional tax and school fraud counts, and his decision to go to trial.

The First Circuit concluded these distinctions were “material differences” fully explaining his tougher sentence:

• Only Griffin:
  • was a TPS commander who orchestrated a multi-year, unit-wide scheme;
  • received a 4-level organizer/leader enhancement;
  • was convicted of both public overtime fraud and extensive private financial crimes (tax and tuition); and
  • did not substantially cooperate, unlike some comparators.
• Under Romero and Freeman, such additional criminality and leadership responsibility make more severe sentences rational and not unwarranted.

The panel also rejected Griffin’s novel argument that uncharged troopers who allegedly engaged in similar conduct but were never prosecuted created an “unwarranted disparity.” The court emphasized:

• Disparity analysis concerns sentences among convicted defendants, not nonprosecution decisions.
• Absent a charged case, there is effectively no record with which to compare: “if Griffin’s an apple and the other sentenced troopers are oranges, the uncharged troopers are salmon—part of an entirely different food group.”

Key lesson. To mount a viable § 3553(a)(6) claim, defense counsel must:

• supply detailed, case-specific information for proposed comparators; and
• be prepared to explain why differences in charges, Guidelines ranges, roles, and cooperation are not material or are outweighed by other considerations.

Thin lists of sentences or efforts to compare charged defendants to uncharged individuals will not suffice.

F. Restitution Under the MVRA

Both defendants were held jointly and severally liable for ~$142,775 in restitution to DOT (or its state pass-through), representing grant funds lost to the TPS overtime fraud.

Under the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A:

• Restitution is mandatory for “offense[s] against property . . . committed by fraud or deceit.”
• In multi-defendant cases, courts may either:
  • apportion restitution among defendants; or
  • impose joint and several liability for the full loss.
• The choice between apportionment and joint/several liability lies within the court’s “broad discretion,” especially in conspiracy cases (Ochoa).

Robertson argued that:

• the court should have:
  • required the government to prove that DOT had not already recouped some of the funds (to avoid a windfall); and
  • apportioned restitution based on his smaller personal share (~$32k) of the overtime payments.

The First Circuit rejected both:

• No windfall shown. The government must prove actual loss by a preponderance, but courts need not “undertake a full-blown trial” on restitution questions (Carrasquillo‑Vilches, Naphaeng):
  • The trial evidence and analysis by the DOT OIG provided an adequate basis to conclude the loss figure was accurate.
  • Robertson’s suggestion of a windfall was speculative; he did not present evidence of actual recoupment or ask for a continuance to develop such evidence.
• Apportionment vs. joint and several. The district court had discretion to impose joint and several liability and was not required to apportion restitution based on relative culpability or benefit. Its choice was not an abuse of discretion.

The panel did note some minor misstatements by the district court (e.g., implying restitution could be adjusted later, which is tightly circumscribed under § 3664(j)(2) and Harvey), but found no reversible error.

G. Forfeiture: The “Traceable to” Requirement and the Vacated BHS Order

1. Statutory framework

Forfeiture in this case relied on 18 U.S.C. § 981(a)(1)(C), the civil forfeiture statute incorporated into criminal cases by 28 U.S.C. § 2461(c), which subjects to forfeiture:

“Any property, real or personal, which constitutes or is derived from proceeds traceable to a violation of” specified offenses, including wire fraud. (emphasis added)

Section 981(a)(2) then defines “proceeds” in two ways, depending on the nature of the offense:

• § 981(a)(2)(A): “illegal goods, illegal services, unlawful activities” (broad definition: any property obtained directly or indirectly from the offense, and property traceable thereto).
• § 981(a)(2)(B): “lawful goods or services sold or provided in an illegal manner” (net profits: proceeds minus direct costs).

The government bears the burden, under § 983(c)(1), to prove by a preponderance that property is subject to forfeiture—including that it is “traceable to” the offense.

2. The BHS aid forfeiture and the missing “traceability” proof

The district court ordered Griffin to forfeit the full amount of BHS financial aid (≈$176–177k) as “proceeds” of his wire fraud, without disaggregating what portion, if any, BHS would have awarded even if Griffin had told the truth about his income.

Griffin argued that:

• BHS administrators testified they could not say whether, or to what extent, the fraud changed the aid amount;
• thus the government had not proven that all the aid was “traceable to” the fraud; and
• the forfeiture order exceeded the statutory scope of § 981.

The First Circuit agreed, drawing on:

• its own statement in George that forfeiture requires the court to find by a preponderance that property was “directly or indirectly obtained as fruit of the charged crime”; and
• persuasive precedents:
  • United States v. Hodge (7th Cir.), vacating forfeiture of the entire revenue of a spa fronting a prostitution ring where the district court hadn’t distinguished between lawful massage revenues and prostitution proceeds; and
  • United States v. Torres (2d Cir.), affirming forfeiture of rent subsidies where the exact sum of savings attributable to fraudulent understatements was established.

The panel held that, under either definition of “proceeds” in § 981(a)(2)(A) or (B), the phrase “traceable to” in § 981(a)(1)(C) demanded more particularity:

• If some portion of the aid would have been awarded even on true applications, that portion is not “property . . . derived from proceeds traceable to” the offense.
• The government’s argument that “all of it” was traceable, simply because the applications contained misstatements, impermissibly conflated “presence of fraud” with “but-for causation” of each dollar of aid.

Because:

• the government offered no methodology or evidence to allocate which portion of aid was attributable to the fraud; and
• the district court made no finding separating the legitimate from the illegitimate component,

the forfeiture order could not stand.

The court therefore:

• vacated the BHS-related forfeiture;
• remanded for further proceedings, instructing that:
  • the government must prove what part of the aid was actually obtained because of the false statements; and
  • only that portion—and property directly traceable thereto—may be forfeited.
  • If the government cannot make that showing, no BHS forfeiture is permissible.

3. Reconciling Guidelines “gain” and forfeiture “traceability”

The court candidly acknowledged the tension between:

• its willingness to accept the entire BHS aid amount as “gain” for Guidelines loss purposes; and
• its insistence on more precise proof for forfeiture.

It justified the difference on two grounds:

1. Different burdens and mechanics.
   • For Guidelines loss, Alphas allows the court to use the full amount of tainted benefits as a starting point and shift the burden of production to the defendant to carve out legitimate components.
   • For forfeiture, § 983 places the burden squarely on the government throughout to prove forfeiture eligibility; there is no similar burden shift.
2. Different purposes and consequences.
   • Loss calculations are one input into a non-binding advisory range designed to approximate offense seriousness; only a “reasonable estimate” is required.
   • Forfeiture directly deprives the defendant of specific property as punishment and deterrence. It is “imposed upon conviction to confiscate assets used in or gained from certain serious crimes” (Kaley). Precision is more critical because the order is executable in exact dollars.

Bottom line. In the First Circuit, after Robertson, the government:

• may rely on a defendant’s full “gain” as a proxy for loss under § 2B1.1 when the defendant cannot show a legitimate portion—though defendants should attempt to produce such evidence to reduce loss; but
• cannot treat the same full gain automatically as forfeitable proceeds under § 981(a)(1)(C) without proving that each dollar is “traceable to” the offense (i.e., would not have been obtained but for the fraud).

IV. Key Precedents and Their Influence

The decision is heavily grounded in—and extends—existing precedent. Some of the most influential cases include:

• United States v. Cardona, 88 F.4th 69 (1st Cir. 2023) and United States v. Turner, 124 F.4th 69 (1st Cir. 2024):
  • Established that non-jurisdictional constitutional attacks (vagueness; Second Amendment) are subject to Rule 12(b)(3) timing requirements.
  • Confirmed that failure to raise such challenges pretrial, without good cause, results in waiver, barring even plain-error review.
  • Directly controlled the treatment of Robertson’s and Griffin’s vagueness claims.
• Pulsifer v. United States, 601 U.S. 124 (2024):
  • Clarified that “and” in a list of disqualifying criminal history factors in § 3553(f)(1) does not create a conjunctive burden for the government; rather, each alternative disqualifier independently bars safety-valve relief.
  • Guided the First Circuit’s interpretation of “and” in § 4C1.1(a)(10) as creating alternative disqualifiers, not cumulative ones.
• United States v. Alphas, 785 F.3d 775 (1st Cir. 2015) and United States v. Rivera‑Ortiz, 14 F.4th 91 (1st Cir. 2021):
  • Articulated the burden-shifting model for calculating “intended loss” based on face-value fraudulent claims when some portion may be legitimate.
  • Provided the framework for treating the full amount of BHS aid as “gain” unless Griffin produced evidence of a legitimate portion.
• United States v. Zanghi, 189 F.3d 71 (1st Cir. 1999):
  • Establishes that counts governed by Guidelines listed in the same row of § 3D1.2(d) must be grouped.
  • Controlled the grouping of TPS and BHS fraud counts under § 2B1.1.
• United States v. González‑Rivera, 111 F.4th 150 (1st Cir. 2024) and United States v. Rodríguez‑Adorno, 852 F.3d 168 (1st Cir. 2017):
  • Require defendants raising disparity arguments to provide concrete, case-specific information about proposed comparators.
  • Serve as the principal basis for rejecting Robertson’s disparity claim as inadequately supported.
• United States v. Hodge, 558 F.3d 630 (7th Cir. 2009) and United States v. Torres, 703 F.3d 194 (2d Cir. 2012):
  • Hodge: vacated a forfeiture order where legal and illegal revenues were not separated.
  • Torres: approved forfeiture where the exact amount of benefit from fraud (rent savings) was shown.
  • These cases provided the analytic template for vacating Griffin’s BHS-related forfeiture.
• United States v. George, 886 F.3d 31 (1st Cir. 2018):
  • Discussed “traceable to” in § 981(a)(1)(C) and emphasized the need to show proceeds were “directly or indirectly obtained as fruit” of the offense.
  • Provided First Circuit foundation for insisting on a causal link between fraud and forfeited BHS aid.
• United States v. Flecha‑Maldonado, 373 F.3d 170 (1st Cir. 2004):
  • Confirmed that law enforcement officers occupy positions of public trust under § 3B1.3.
  • Supported the abuse-of-trust enhancement for Robertson.

V. Simplifying the Complex Legal Concepts

A. Wire Fraud (18 U.S.C. § 1343)

Wire fraud requires proof that:

1. the defendant knowingly participated in a scheme to defraud; and
2. used, or caused the use of, interstate wires (phone, internet, electronic banking) in furtherance of that scheme.

A person can be guilty of wire fraud even if:

• they did not personally send the email or authorize the transfer; so long as
• using such wires was a reasonably foreseeable aspect of how the scheme would operate (for example, using an electronic payroll system to pay inflated overtime).

B. Theft from Programs Receiving Federal Funds (18 U.S.C. § 666)

Section 666 makes it a crime for agents of organizations receiving more than $10,000 per year in federal benefits (like a state police agency receiving DOT grants) to:

• embezzle, steal, obtain by fraud, or intentionally misapply property valued at $5,000 or more that is under the agency’s control.

The federal government does not need to prove that the stolen money itself was federal; only that the agency received significant federal funds and that the defendant stole from the agency.

C. Conspiracy (18 U.S.C. § 371)

Conspiracy requires:

1. an agreement between two or more persons to commit a federal crime;
2. the defendant’s knowing and voluntary participation; and
3. (for § 371) an overt act in furtherance of the agreement.

Co-conspirators can be held liable for reasonably foreseeable acts of others taken in furtherance of the conspiracy.

D. Federal Rule of Criminal Procedure 12(b)(3) and Timing of Motions

Certain defenses must be raised before trial if their basis is reasonably available and they can be decided without a full trial, including:

• defects in the indictment (e.g., failure to state an offense, constitutional defects); and
• some jurisdictional and constitutional attacks.

If a defendant fails to bring such a motion by the pretrial deadline and cannot show “good cause” for the delay:

• the issue is waived (not merely forfeited); and
• an appellate court will not review it, even for plain error.

E. Sentencing Guidelines Basics

• Offense level. Each offense type has a base offense level, subject to increases or decreases based on specific offense characteristics (loss amount, sophisticated means, role, abuse of trust, obstruction, acceptance of responsibility, etc.).
• Criminal History Category (CHC). Prior convictions yield points that place the defendant in CHC I–VI.
• Guidelines range. The offense level and CHC intersect on the Sentencing Table to provide an advisory imprisonment range.

1. Zero-point offender (§ 4C1.1)

This newer Guideline grants a 2‑level reduction to first-time offenders with no criminal history points who meet additional criteria, such as:

• no aggravating role (§ 3B1.1);
• no terrorism enhancement; no serious violence; and so on.

After Robertson, defendants in the First Circuit are ineligible if they either:

• had a leadership/organizer/manager role; or
• engaged in a continuing criminal enterprise.

2. Leadership role (§ 3B1.1)

Adds 2–4 levels if a defendant:

• organizes, leads, manages or supervises others in criminal activity; and
• the activity involves at least one other participant (for 2 levels), or 5 or more participants or is “otherwise extensive” (for higher increases).

3. Abuse of position of trust (§ 3B1.3)

Adds 2 levels where:

• the defendant holds a public or private position of trust (typically characterized by professional or managerial discretion rather than routine duties); and
• uses that position in a significant way to commit or hide the crime.

F. Restitution vs. Forfeiture vs. Guidelines Loss

• Restitution (MVRA):
  • Compensatory: to make victims whole for actual loss.
  • Mandatory for certain fraud/property crimes.
  • Can be joint and several for conspirators or apportioned.
• Forfeiture (§ 981/§ 2461):
  • Punitive and deterrent: strips criminals of proceeds of crime.
  • Targets property “traceable to” the offense (i.e., obtained as a result of the crime).
  • Government bears burden to show proceeds link by a preponderance.
• Guidelines “loss” (and sometimes “gain”) (§ 2B1.1):
  • Used to approximate seriousness and culpability for advisory sentencing ranges.
  • May be based on intended, not just actual, loss in some contexts.
  • Can use defendant’s gain as a proxy when exact loss is difficult to measure.

These three concepts often involve overlapping numbers but serve different functions and obey different procedural and evidentiary rules.

VI. Impact and Broader Significance

A. For Federal Fraud and Forfeiture Practice

• The decision tightens the proof requirement for civil/criminal forfeiture under § 981(a)(1)(C):
  • Government must demonstrate a causal nexus between fraud and each dollar sought.
  • Where benefits (like financial aid or subsidies) might partly be legitimate, simple reliance on the total gross benefit is not enough.
  • Prosecutors should be prepared to offer:
    • testimony on how correct data would have altered decisions; or
    • actuarial or policy-based evidence showing that but-for the fraud, no aid—or only a defined portion—would have been granted.
• Defense counsel now have a clear foothold to challenge overbroad forfeiture orders in the First Circuit, especially in:
  • financial aid fraud;
  • benefits/subsidy fraud where eligibility is multifactorial; and
  • mixed legal/illegal business operations (e.g., clinics, contractors, or hybrid ventures).

B. For Sentencing Advocacy

• Rule 12(b)(3) discipline. Defense attorneys must treat as-applied constitutional arguments (vagueness, certain Second Amendment challenges, etc.) as pretrial motions. Waiting until trial evidence clarifies the government’s theory risks complete waiver.
• Zero-point offender interpretation settled. In the First Circuit, any leadership or managerial role enhancement automatically disqualifies a defendant from § 4C1.1 relief, regardless of continuing criminal enterprise status.
• Disparity claims require data. Defendants seeking to argue that their sentence is out of line with similarly situated cases must:
  • compile robust comparative data; and
  • be candid about differences in charges, conduct, and cooperation.
  Courts will not do this legwork themselves.
• District court tone and transparency. The panel’s criticism of the sentencing judge’s dismissiveness is a reminder that:
  • judges should not appear hostile to statutorily mandated factors like disparity analysis; and
  • they should articulate reasons for rejecting disparity claims when properly supported.

C. For Public Corruption and Timecard-Fraud Cases

• Overtime schemes remain squarely within federal fraud statutes. The opinion confirms that systemic “padding” of hours in federally funded overtime programs, even when done in line with informal local customs, can:
  • constitute wire fraud;
  • trigger § 666 federal program theft; and
  • support abuse-of-trust and leadership enhancements.
• “Just following orders” is no defense. In hierarchical organizations, supervisors cannot shield themselves behind their superiors’ directions when subordinates clearly recognize wrongdoing.
• Document destruction is a double-edged sword. Attempts to cover tracks:
  • support obstruction enhancements; and
  • can evidentially support leadership and abuse-of-trust findings by showing command over others.

VII. Conclusion

United States v. Robertson is a wide-ranging opinion touching nearly every stage of a federal criminal case: from pretrial motion practice, through the jury’s evaluation of intent and scheme liability, to complex Guidelines calculation issues, sentencing disparity claims, restitution, and forfeiture.

Its most significant doctrinal contributions include:

• cementing the requirement that as-applied constitutional challenges covered by Rule 12(b)(3) be raised pretrial or be waived entirely;
• joining the post‑Pulsifer consensus that the zero-point offender reduction disqualifies any defendant with a leadership enhancement, even absent a continuing criminal enterprise;
• reaffirming that co-schemers may be convicted of wire fraud based on reasonably foreseeable wires executed by others; and
• clarifying that while Guidelines “gain” can be used as a rough estimate of loss when exact loss is indeterminate, forfeiture under § 981 requires a more precise, evidence-based demonstration that property is truly “traceable to” the offense.

For practitioners, the case underscores the need for early, well-developed motion practice, detailed sentencing advocacy with robust comparative data, and granular evidentiary work on loss, gain, and proceeds—especially when government seeks both restitution and forfeiture. In the broader federal criminal landscape, Robertson stands as a significant precedent refining the interaction between substantive fraud law, the Sentencing Guidelines, and financial penalties in complex public corruption and benefits-fraud prosecutions.