United States v. Bourget: Whitley-Factor Proof of § 242 Willfulness in Prison Excessive-Force Cases and Trial-Court Discretion to Exclude “Training” Videos Under Rules 401/403

Introduction

In United States v. Bourget (1st Cir. Aug. 21, 2026), the First Circuit affirmed the criminal civil-rights conviction of Bureau of Prisons (“BOP”) correctional officer Seth M. Bourget under 18 U.S.C. § 242 for using excessive force against “KT,” a mentally ill, physically deteriorated inmate housed at the Federal Medical Center Devens (“FMC Devens”) in Massachusetts.

The conviction arose from a June 18, 2019 “forced cell move” in which Bourget—assigned as the “number one man” and carrying a large shield—entered the holding cell and struck KT in the chin/face with an upward shield motion while KT was handcuffed behind his back. KT fell backward, suffered serious head and facial injuries, and later required staples and other medical treatment. The incident was captured on video and played at trial.

After a first trial ended with an acquittal on one § 242 count and a hung jury on the shield-strike count, the government retried the remaining count and obtained a conviction. On appeal, Bourget challenged: (1) sufficiency of the evidence (malicious/sadistic force and § 242 “willfulness”); (2) jury instructions on intent; (3) exclusion at the second trial of a prior-use-of-force “Sion video” shown in BOP training; (4) admission of alleged hearsay/lay opinion testimony; and (5) cumulative error.

Summary of the Opinion

  • Sufficiency: The court held a rational jury could find (a) an Eighth Amendment excessive-force violation—force applied “maliciously and sadistically,” and (b) § 242 willfulness—knowledge or reckless disregard of the constitutional prohibition.
  • Jury instructions: Any instructional challenge was waived because the instructions given were materially identical to the instructions Bourget requested.
  • Sion video exclusion: No abuse of discretion under Federal Rules of Evidence 401 and 403; differences between the incidents and risk of jury confusion substantially outweighed minimal probative value as offered.
  • Challenged testimony (Captain Quinn): Hearsay/lay opinion objections were deemed waived on appeal for failure to properly brief preserved issues and failure to argue plain error on unpreserved ones.
  • Cumulative error: Rejected because cumulative-error doctrine requires at least two actual errors and because undeveloped claims were waived.

Judge Kayatta concurred, emphasizing the trial’s focus on misuse of the shield and the Sion video’s limited relevance because it involved no shield. Judge Lynch dissented, arguing exclusion of the Sion video improperly gutted the defense and was not harmless.

Analysis

Precedents Cited

1) Appellate posture, video review, and sufficiency framework

  • United States v. Lee: Facts reviewed in the light most favorable to the guilty verdict.
  • United States v. Howard; Bannon v. Godin: Appellate reliance on video footage in the record.
  • United States v. DeCologero; United States v. Echeverri: Sufficiency is met if the verdict “finds support in a plausible rendition of the record.”
  • United States v. Bailey: Identifies § 242 elements relevant here (color of law, willfulness, deprivation of federal right, bodily injury).

2) Eighth Amendment excessive force and the “Whitley factors”

  • Farmer v. Brennan; Cintron v. Bibeault: Objective/subjective requirements for Eighth Amendment claims; court focused on the subjective component.
  • Hudson v. McMillian; Whitley v. Albers: Core test—force applied in good-faith effort to maintain/restore discipline versus “maliciously and sadistically for the very purpose of causing harm.”
  • Segrain v. Duffy; Staples v. Gerry: Articulation of the “Whitley factors” used to infer the subjective state of mind.
  • Dean v. Jones: Cited for the proposition that the Whitley factors permit inference of the required subjective state of mind when direct intent evidence is scarce.

3) § 242 “willfulness”

  • Screws v. United States; United States v. Murdock: “Willful” generally means act done with bad purpose; § 242 covers officials who know or recklessly disregard the prohibition of a defined federal right.
  • United States v. Marler: Intent may be inferred from attendant circumstances (malice, weapons, character/duration, provocation).
  • United States v. Hill; United States v. Brown: Where conduct “obviously violate[s]” training on use of force, a jury may infer willfulness.

4) Waiver/forfeiture doctrines and briefing requirements

  • United States v. Ruiz: A party who affirmatively requests an instruction waives appellate challenge to it.
  • United States v. Henry: Failure to address a district court’s hearsay exception rationale in the opening brief waives the argument.
  • United States v. De La Cruz: Unpreserved issues require plain-error argument; failure to argue plain error results in waiver.
  • United States v. Zannino: Undeveloped arguments are waived.

5) Right to present a defense and evidentiary discretion under Rules 401/403

  • Crane v. Kentucky; United States v. Scheffer: Meaningful opportunity to present a complete defense is subject to reasonable evidentiary restrictions.
  • United States v. Wallace; United States v. Stewart-Carrasquillo: Abuse-of-discretion review for Rules 401/403 exclusions; “great deference” to Rule 403 balancing.
  • United States v. Shafa; United States v. Armenteros-Chervoni; United States v. Pina-Nieves; Cummings v. Standard Reg. Co.: Relevancy determinations are “quite deferential” and reversed only exceptionally.
  • United States v. Frabizio; United States v. Gilbert: Standard for abuse of discretion in evidentiary balancing.
  • United States v. Nelson-Rodriguez; United States v. Simonelli; United States v. Mazza; United States v. Lau: Trial judges get leeway because they see the evidence’s likely effect firsthand.
  • United States v. García-Sierra: Independent similar evidence can reduce marginal probative value.
  • United States v. Villa-Guillen: Overlap between relevance and probative-value considerations.
  • United States v. Tkhilaishvili: Rule 403 described as probative weight versus prejudicial effect.
  • United States v. Soto: Appellate reluctance to second-guess Rule 403 balancing absent “extraordinarily compelling” circumstances.
  • United States v. Peña: Cautions against relabeling ordinary evidentiary complaints as constitutional ones.

6) Cumulative error

  • United States v. O'Donovan; United States v. Baptiste: Aggregation of individual nonreversible errors can sometimes amount to prejudice.
  • United States v. Stokes: Cumulative-error doctrine requires at least two errors.

Legal Reasoning

1) Eighth Amendment “malicious and sadistic” finding supported by Whitley factors

The court focused on the subjective component of excessive force. Using the Whitley factors, the panel held a jury could infer malicious/sadistic force because:

  • Threat level (factor 1): KT was handcuffed behind his back, physically weakened, and not making threatening statements or aggressive movements; multiple armored officers were present.
  • Need for force and proportionality (factors 2 & 3): Some force was needed for decontamination, but the jury could find the spear-like upward shield strike disproportionate, particularly in light of training testimony that shields are defensive and that upward shield motions risk extreme injury or death.
  • Injury severity (factor 4): Serious head and facial lacerations, blood in the cell, hospital transport, and staples supported the conclusion that force was significant and harmful.
  • Tempering efforts (factor 5): The court treated this as roughly neutral—decontamination occurred, but immediate attention to other injuries was limited.

The panel also noted direct evidence potentially reflecting animus and retaliatory motive (swearing, “f*** you,” desire to spray KT further) as reinforcing the inference of malice.

2) § 242 willfulness inferred from circumstances

Invoking Screws v. United States and United States v. Marler, the court emphasized willfulness can be inferred from attendant circumstances rather than explicit admissions. Even amid conflicting testimony about “100%” entry training, the jury could credit testimony emphasizing “minimum force necessary,” and could infer willfulness from (i) offensive use of a shield as a spear against a handcuffed inmate, (ii) evidence of anger after being spit on, (iii) negative statements, and (iv) volunteering for lead position.

3) Jury instruction challenge waived by invited instruction

The panel applied United States v. Ruiz: because the instructions given were materially identical to those requested by Bourget, he affirmatively waived appellate review of claimed deficiencies (failure to define “maliciously and sadistically,” and alleged confusion between intentional striking and § 242 willfulness).

4) Exclusion of the “Sion video” upheld under Rules 401/403

The centerpiece evidentiary dispute concerned a prior forced cell move video (“Sion video”) that had been admitted at the first trial but excluded at the second. The district court excluded it as irrelevant given materially different circumstances (unrestrained inmate, escalating less-lethal measures, no shield) and, alternatively, as posing a danger of confusion/unfair prejudice substantially outweighing its marginal probative value.

On appeal, the majority credited the district judge’s reliance on Captain Bollinger’s prior testimony that the video was used in training to illustrate transitions among force options, not as a model for how to perform forced cell moves. It further held that, even if “tacit approval” could be inferred from showing the video, the differences between Sion and KT made that inference only minimally probative; and that the risk of confusing jurors about what the video proved supported exclusion under Rule 403.

The concurrence sharpened this reasoning: because the prosecution’s theory focused on using a shield “as a weapon” and the Sion video involved no shield, it was either irrelevant or a distracting “red herring,” justifying exclusion under Rule 403.

The dissent framed the issue differently: it viewed the Sion video as central to intent, training adequacy, and potential scapegoating, and criticized the exclusion as improperly resolving competing inferences and credibility questions that should have been left to the jury—especially in a close case.

5) Captain Quinn testimony and cumulative error rejected largely on waiver grounds

The panel found the hearsay/lay opinion claims waived due to inadequate appellate briefing and failure to argue plain error. The cumulative-error claim failed because the court found no preserved errors and because undeveloped additional allegations were waived under United States v. Zannino.

Impact

  • § 242 prosecutions of correctional officers: The decision illustrates how video evidence, medical proof, and training testimony can jointly support findings of both “malicious and sadistic” force and § 242 willfulness, even absent a pattern of misconduct.
  • Whitley factors as an inference engine: The opinion underscores that juries may infer subjective malice from objective circumstances—restraint status, threat perception, proportionality, and injuries—consistent with Hudson v. McMillian and Whitley v. Albers.
  • Training evidence cuts both ways: By relying on testimony that shields are defensive and that certain movements risk catastrophic injury, the case signals that “training” can be used to prove willfulness (especially if conduct is framed as obviously inconsistent with instruction), echoing the logic cited from United States v. Hill and United States v. Brown.
  • High barrier to admitting “other incident” videos as defense evidence: The ruling gives district courts substantial latitude to exclude prior-incident recordings—despite being labeled “training” materials—where contextual differences create a risk of confusion and the probative value is deemed modest.
  • Appellate waiver doctrine as case-dispositive: The opinion reinforces that invited jury instructions (United States v. Ruiz) and underdeveloped or mis-briefed evidentiary objections (United States v. Henry; United States v. De La Cruz) can foreclose review, shaping strategy at both trial and appeal.

Complex Concepts Simplified

  • 18 U.S.C. § 242 (“deprivation of rights under color of law”): A federal crime for officials (like correctional officers) who, while using government authority, willfully violate a person’s federal constitutional rights. “Willfully” is more than negligence; it involves bad purpose, knowledge, or reckless disregard of the constitutional prohibition.
  • Eighth Amendment excessive force (prison context): Not every use of force is unconstitutional. The key question is whether officers used force in good faith to maintain/restore discipline or instead “maliciously and sadistically” to cause harm.
  • Whitley factors: A set of common-sense considerations (threat, need, proportionality, injury, tempering efforts) used to infer whether force was punitive and malicious rather than disciplinary.
  • Rules 401 and 403: Rule 401 sets a low bar for relevance (“any tendency” to make a consequential fact more/less probable). Rule 403 permits exclusion if probative value is substantially outweighed by risks like confusing the issues or unfair prejudice.
  • Waiver vs. forfeiture: Waiver is an intentional relinquishment (e.g., requesting the very instruction later attacked). Forfeiture is a failure to timely object; on appeal it typically requires “plain error” briefing to obtain relief.

Conclusion

United States v. Bourget affirms that a § 242 conviction for prison excessive force can rest on a jury’s inference of malicious/sadistic intent under the Whitley framework and on circumstantial proof of willfulness under Screws v. United States. Equally important, the decision highlights the appellate consequences of trial choices (invited instructions) and the breadth of district-court discretion to exclude prior-incident “training” videos under Rules 401/403 when contextual differences risk juror confusion. The split over the Sion video—majority/concurrence versus dissent—also signals an enduring fault line in close § 242 cases: when does exclusion of defense evidence about training and institutional practice cross from ordinary evidentiary gatekeeping into impairing the defense’s ability to contest willfulness beyond a reasonable doubt?