United States v. Griffin & Robertson: Zero‑Point Offender Eligibility, Grouping of Fraud Schemes, and Limits on Forfeiture for Financial Aid Fraud

I. Introduction

This First Circuit decision arises from a high‑profile overtime fraud scandal in the Massachusetts State Police (“MSP”) and related personal financial misconduct by Lieutenant Daniel Griffin. The court’s opinion addresses a wide array of criminal law and sentencing issues, but it is especially important in three doctrinal areas: 1. **Sentencing Guidelines interpretation** - The meaning of the “zero‑point offender” reduction in U.S.S.G. § 4C1.1(a)(10) after the Supreme Court’s decision in Pulsifer v. United States. - Application of the leadership and abuse‑of‑trust enhancements to a supervisory police officer in an overtime fraud scheme. - Mandatory grouping under § 3D1.2(d) when multiple fraud schemes are sentenced under the same guideline (§ 2B1.1). 2. **Sentencing disparity under 18 U.S.C. § 3553(a)(6)** - The level of detail defendants must provide to mount a credible “unwarranted disparity” argument. - The First Circuit’s criticism of a district judge’s tone when reacting to comparative sentencing arguments, while still affirming the sentence. 3. **Forfeiture of fraudulently obtained financial aid** - A clear holding that, in forfeiture, the government must prove by a preponderance what portion of the benefit is “traceable to” the offense. - The court vacates a forfeiture order equal to the full amount of Belmont Hill School (“BHS”) financial aid because the government did not separate the legitimately‑obtainable aid from the portion caused by Griffin’s lies. The case consolidates appeals by (1) Sergeant William Robertson (convicted at trial of wire fraud, theft of federal funds, and conspiracy) and (2) Lieutenant Daniel Griffin (convicted at trial on the overtime‑grant scheme and separately by guilty plea for tax and school‑aid fraud). The First Circuit affirms all convictions, all sentences, and all restitution orders, but **vacates and remands the forfeiture order against Griffin** for his BHS financial‑aid fraud.

II. Factual and Procedural Background

A. The TPS overtime scheme

Griffin (a lieutenant) and Robertson (a sergeant) both served in the MSP’s **Traffic Programs Section (“TPS”)**, a small unit responsible for administering federal highway‑safety grants and directly running certain grant‑funded enforcement programs, notably: - **Sobriety checkpoints** (“BAT” checkpoints, using a “BAT Mobile” RV to process DUI arrests), and - **Seatbelt and distracted‑driving enforcement initiatives** (e.g., “Click-It-Or-Ticket”). Those grants were subject to federal rules and inter‑agency service agreements (ISAs) requiring troopers to: - Work the full shift (typically 8 hours for checkpoints; 4 hours for enforcement waves), and - Avoid “pyramiding” (i.e., not billing federal overtime during regular-duty hours). The evidence showed that, from 2015–2017, Griffin and Robertson, along with several troopers they supervised: - Routinely **arrived late and left early** from grant‑funded overtime shifts but billed for full shift durations. - **Double‑dipped (“pyramided”)** by performing grant‑funded enforcement (writing grant‑coded tickets) during regular duty hours while still claiming separate overtime pay. - Used a **coded radio phrase** (“Let’s move to another location”) as a signal not to move the enforcement site but to stop working and go home while still billing the full allocation. - Encouraged subordinates to follow this pattern; troopers testified that they knew it was wrong but followed Griffin’s direction and Robertson’s example. When other units’ overtime fraud began drawing scrutiny, Robertson ordered Trooper Dennis Kelley to **shred grant paperwork** (“637” forms) documenting TPS overtime. Kelley later burned additional files at home. This destruction became powerful evidence of consciousness of guilt and featured heavily in the court’s analysis of intent and leadership.

B. Griffin’s side schemes: KNIGHTPRO taxes and Belmont Hill financial aid

Parallel to the TPS activities, Griffin: - Ran a private security business, **Knight Protection Services (“KNIGHTPRO”)**, which MSP had approved on the condition it not conflict with his state duties. - From 2012–2019, KNIGHTPRO had about $1.9 million in deposits, but Griffin reported only $1.2 million to the IRS, understating income by more than $700,000 and falsely portraying the company as a money‑losing business. - Used KNIGHTPRO funds to pay for personal expenses (e.g., country club membership, home improvements) and wrote those off as business expenses, resulting in a tax loss estimated at **$186,389**. In addition, from 2013 onward, Griffin misrepresented his income and finances to his sons’ private school, **Belmont Hill School**, to obtain need‑based financial aid: - His family received **$176,700** in BHS financial aid over seven years. - School officials later testified they could not determine how much of that aid, if any, would have been different absent Griffin’s misrepresentations.

C. Investigation, charges, and trial

A Department of Transportation Inspector General agent, Tanya Chavez, noticed suspicious patterns in TPS overtime records and pulled together: - MSP “Paystation” payroll entries and internal forms (“636,” “637,” “638”), - Fuel records and cruiser radio data indicating when and where vehicles were operated, and - Traffic citations showing when grant‑coded tickets were written. From this, she and her colleagues estimated hundreds of unworked “loss hours” for TPS troopers. In 2020, a federal grand jury indicted both men for the overtime scheme: - **Conspiracy to commit theft concerning programs receiving federal funds**, 18 U.S.C. § 371; - **Theft concerning programs receiving federal funds**, 18 U.S.C. § 666(a)(1)(A); - **Multiple counts of wire fraud**, 18 U.S.C. § 1343. Griffin alone was also indicted for: - Four wire‑fraud counts relating to BHS financial‑aid forms, and - Ten counts of filing false tax returns for KNIGHTPRO and his personal returns. Just before trial, Griffin **pled guilty** to the BHS and tax counts but went to trial on the overtime counts with Robertson. After an 11‑day jury trial with 25 witnesses, the jury convicted both defendants on all remaining counts.

D. Sentences and financial penalties

For Griffin: - Guideline offense level 25, Criminal History Category I ⇒ advisory range 57–71 months. - Imposed sentence: **60 months’ imprisonment**, 3 years’ supervised release. - Financial penalties: - Special assessment: $2,100. - Restitution: **$329,163.77** - $186,389 (IRS) + $142,774.77 (DOT), joint and several with Robertson for the DOT portion. - Forfeiture: **$239,796.75**, including **$177,600** tied to BHS financial aid. For Robertson: - Guideline offense level 21, Criminal History Category I ⇒ advisory range 37–46 months. - Imposed sentence: **36 months’ imprisonment**, 3 years’ supervised release. - Financial penalties: - Special assessment: $600. - Restitution: **$142,774.77** to DOT, joint and several with Griffin. - Forfeiture: $32,180.50. Both appealed on numerous grounds; the First Circuit issues a unified, detailed opinion.

III. Summary of the First Circuit’s Decision

The First Circuit’s key holdings can be summarized as follows: 1. **Constitutional vagueness challenge waived under Rule 12(b)(3)** - Griffin and Robertson’s as‑applied vagueness attack on the wire‑fraud and § 666 statutes (based on alleged ambiguity in time‑keeping rules) was waived because they did not raise it in a timely pretrial motion and showed no “good cause” for the delay. - Under Rule 12(c)(3), waiver barred even plain‑error review. 2. **Sufficiency of the evidence against Robertson** - Evidence of late arrivals, early departures, pyramiding, destruction of records, and subordinate testimony that “we knew it was wrong” fully supported the jury’s finding of intent to defraud and steal. - Robertson was also properly convicted of wire fraud counts involving payments to Griffin because those payments were a reasonably foreseeable part of the common overtime‑fraud scheme. 3. **Guidelines – zero‑point offender reduction (§ 4C1.1)** - The court aligns with every other circuit to interpret § 4C1.1(a)(10) (pre‑2024 amendment) to mean that a defendant is ineligible if he **either** (a) received an aggravating‑role adjustment under § 3B1.1 or (b) engaged in a continuing criminal enterprise. - “And” in this context functions as part of a **checklist of disqualifiers**, following Pulsifer’s reasoning; Robertson’s leadership enhancement made him ineligible for the two‑level reduction. 4. **Guidelines – leadership and abuse of trust (Robertson)** - Evidence supported a § 3B1.1(c) leadership/managerial enhancement: Robertson, as sergeant and TPS “second‑in‑command,” helped staff the team, instructed subordinates on billing practices, approved false forms, and ordered document destruction. - A § 3B1.3 abuse‑of‑trust enhancement was proper: a state trooper and TPS sergeant holds a position of public trust vis‑à‑vis MSP and the grantor agencies; Robertson used that trust to facilitate and conceal the scheme. 5. **Sentencing disparities – burden on the defendant** - Both appellants argued that their sentences were far harsher than earlier MSP overtime‑fraud cases. - The court holds that a disparity claim fails if the defendant does not supply enough detail (charges, guideline ranges, criminal histories, cooperation status, roles, etc.) to allow an “apples‑to‑apples” comparison. - Robertson’s thin chart of cases (names, dockets, and outcomes only) was insufficient. - The court nonetheless expresses concern about the district judge’s dismissive comments regarding comparative cases and reminds trial courts of their duty to consider § 3553(a)(6). 6. **Restitution – joint and several liability and windfall concerns** - The district court did not abuse its discretion in imposing joint and several restitution on Griffin and Robertson for the full DOT loss amount, nor in declining to apportion between them. - The court rejects a speculative argument that the victim might have already recovered funds elsewhere; the government proved loss by a preponderance, and the defendants offered only conjecture of a “windfall.” 7. **Griffin’s Guidelines – loss/gain for Belmont Hill financial aid** - For Guidelines § 2B1.1 purposes, where actual loss could not be reasonably determined, the district court permissibly used **Griffin’s gain** (the full $176,700 in aid received) as a proxy. - Applying the Alphas burden‑shifting framework, the government established the total amount of aid; Griffin failed to produce evidence segregating a “legitimate” portion, so the court could treat the full amount as gain. 8. **Griffin’s Guidelines – grouping TPS and BHS frauds** - The court reaffirms United States v. Zanghi, holding that when multiple counts fall under guideline § 2B1.1 (which is listed in § 3D1.2(d)’s grouping table), they are to be **grouped together automatically**, even if they involve different victims and distinct schemes (TPS grants vs. school aid). - The panel declines Griffin’s invitation to adopt the more restrictive Second Circuit approach in Lenoci, citing the law‑of‑the‑circuit rule. 9. **Griffin’s sentencing disparity claim rejected** - Griffin provided more detailed comparator information than Robertson, but the court finds major, material differences: additional conspiracy charge, longer scheme duration, a leadership enhancement, and separate tax and financial‑aid fraud convictions. - These differences explain the higher 60‑month sentence versus much lighter punishments in prior trooper cases. - Disparities stemming from the government’s decision not to charge other troopers are not cognizable under § 3553(a)(6). 10. **Forfeiture – “proceeds traceable to” BHS financial‑aid fraud** - The court vacates the **$177,600 forfeiture order** for BHS aid. - Under 18 U.S.C. § 981(a)(1)(C) and § 983(c)(1), the government must prove by a preponderance that the property forfeited is “proceeds traceable to” the offense. - Because the record showed that BHS may have granted some aid even absent fraud and the school could not say how much aid would have changed, the government failed to show which portion of the $177,600 was actually caused by Griffin’s fraudulent statements. - The case is remanded for the district court to determine what amount, if any, is forfeitable based on aid “traceable to” the offense; if the government cannot separate legitimate from illegitimate aid, forfeiture may not be appropriate at all.

IV. Detailed Analysis

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

Griffin and Robertson argued on appeal that: - They did not have “fair notice” that billing in fixed 4‑ or 8‑hour blocks (rather than exact hours) and treating some overtime‑related tasks during the regular workday as separate overtime shifts could amount to federal fraud. - Therefore, as applied to them, the wire‑fraud statute and § 666 (theft from programs receiving federal funds) were unconstitutionally vague. The First Circuit never reached the merits because of **Federal Rule of Criminal Procedure 12(b)(3)**: - Rule 12(b)(3) requires certain motions — including constitutional challenges to the indictment that can be decided without trial — to be brought in a **pretrial motion** if the basis was reasonably available. - Rule 12(c)(3) allows late motions only upon a showing of “good cause.” Here: - Defendants did not move to dismiss on vagueness grounds when the indictment was returned (2020), nor when the court set a pretrial motion deadline (November 20, 2023). - They first raised vagueness **mid‑trial**, after the government’s case‑in‑chief. - On appeal, they did not even contest the government’s assertion that Rule 12(b)(3) applied, nor did they show any “good cause” for the delay. The First Circuit: - Followed its recent decisions in United States v. Cardona and United States v. Turner, holding that when a Rule 12(b)(3) argument is not timely raised and no good cause is shown, the claim is **waived entirely**. - Critically, in this circuit, waiver under Rule 12(b)(3) **precludes even plain‑error review**. Impact: Defense counsel must raise as‑applied constitutional attacks on charging statutes **before trial**. Failure to do so — even when the issue is more legal than factual — will likely bar any appellate review. Trial judges should enforce Rule 12(b)(3) rigorously.

B. Sufficiency of the Evidence Against Robertson

1. Intent to defraud and steal

Robertson argued there was insufficient evidence that he had the requisite intent (“willfully” joining a § 371 conspiracy; “knowingly and intentionally” stealing under § 666; “intent to defraud” under § 1343), pointing to: - Alleged ambiguity and laxity in MSP time‑keeping practices, - His reliance on Griffin’s instructions (the “just following orders” theory), and - Internal documents and collective bargaining provisions that did not explicitly forbid some time‑keeping choices. The First Circuit, applying de novo review in the light most favorable to the verdict, found abundant evidence of intent: - Multiple TPS troopers testified they knew leaving early and billing full shifts on federal grants was wrong yet did it anyway; Robertson supervised them and followed the same practices. - TPS leadership (and higher‑ranking MSP officers) testified that grant rules and ISAs explicitly required: - full shift work for payment, and - no pyramiding with regular duty time. - The coded radio phrase “Let’s move to another location” was understood as a signal to quit early while hiding that fact from other units on shared channels — itself evidence of concealment and guilty knowledge. - Most importantly, Robertson’s order to Kelley to shred grant forms, followed by Kelley’s later burning of additional forms, strongly indicated consciousness of guilt; as the court put it, “later events often may shed light on earlier motivations.” The court rejected: - The “Nuremberg defense”: subordinates’ testimony that they knew it was wrong undermined the claim that a sergeant could innocently believe it was permissible simply because his lieutenant said so. - The notion that compliance (or non‑violation) of internal MSP rules is dispositive in a federal fraud prosecution; § 666 and § 1343 are federal criminal statutes, not merely internal policy enforcement tools.

2. Liability for wires depositing money into Griffin’s account

Robertson argued that he could not be convicted of wire fraud on counts where the wires moved overtime funds into **Griffin’s** account, because: - He did not personally submit Griffin’s Paystation entries, and - The government had argued aiding‑and‑abetting liability, which he claimed was unsupported. The First Circuit held that Robertson’s conviction could be sustained on a simpler theory: classic wire‑fraud “scheme” liability. Under United States v. Tum and Fermin Castillo, to convict for wire fraud the government must show: - A knowing and willful participation in a scheme to defraud, - Use (or foreseeable use) of interstate wires in furtherance of the scheme. A defendant **need not personally send the wire**; it suffices that use of wires was reasonably foreseeable as part of the scheme in which he participated. Here: - Robertson and Griffin were joint participants in the TPS overtime scheme. - Both used the same mechanism (Paystation) to submit inflated overtime hours for the same shifts. - It was clearly foreseeable to Robertson that Griffin would submit and be paid on his own false entries through the same system. Thus, even if Robertson did not personally enter or authorize Griffin’s hours, payments to Griffin were a reasonably foreseeable part of the joint scheme, and that sufficed for wire‑fraud liability. Because one valid theory supported the verdict, any aiding‑and‑abetting issues need not be reached. Impact: This reinforces broad wire‑fraud liability for participants in a common scheme: a defendant is exposed to wire‑fraud counts tied to co‑schemers’ payouts wherever those wires are a reasonably foreseeable by‑product of the jointly undertaken plan.

C. Robertson’s Guidelines Challenges

1. Zero‑point offender reduction (§ 4C1.1) and Pulsifer

The new “zero‑point offender” guideline, § 4C1.1, provides a two‑level reduction if the defendant meets ten criteria in § 4C1.1(a)(1)–(10). The relevant 2023 text of subsection (a)(10) required that: > “the defendant did not receive an adjustment under § 3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848.” Robertson argued this created a conjunctive disqualification: he remained eligible unless he BOTH: - Received an aggravating‑role adjustment, AND - Was engaged in a continuing criminal enterprise (CCE). Thus, he argued, because he had no CCE, he could still get the zero‑point reduction even if he had a leadership enhancement. The court rejected this argument and joined a unanimous line of other circuits (Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Eleventh) in holding: - Section 4C1.1(a) is an “eligibility checklist”: the defendant must **satisfy all criteria** to get the reduction. - Subsection (a)(10) must be read to mean the defendant must simultaneously (1) have no aggravating‑role adjustment and (2) not be engaged in a CCE. - Failure of either condition disqualifies the defendant. The court relied heavily on the Supreme Court’s reasoning in Pulsifer v. United States, where similarly structured language in § 3553(f)(1) (“and” linking three disqualifying conditions) was interpreted as a list of independent disqualifiers. The Sentencing Commission’s subsequent 2024 amendment, which split the two prongs into separate numbered subparagraphs, confirmed that the Commission intended disqualification if either condition was present. Because Robertson had a § 3B1.1 leadership enhancement, he was ineligible for the zero‑point reduction. The court also rejected: - A “law of the case” argument based on Griffin having received the reduction before Pulsifer’s implications were fully appreciated; an intervening Supreme Court decision is a recognized exception to law‑of‑the‑case. - A claim of unwarranted disparity with Griffin: § 3553(a)(4) directs courts to apply the Guidelines “in effect on the date the defendant is sentenced”; Griffin’s earlier sentence used a now‑outdated interpretation, but the court was required to apply the correct law at Robertson’s later sentencing.

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

Under § 3B1.1(c), a two‑level enhancement applies where the defendant is an “organizer, leader, manager, or supervisor” of criminal activity involving at least one other participant. The government must show by a preponderance that the defendant exercised some control or authority over another participant in committing the offense. Evidence supporting Robertson’s leadership role included: - His rank: as a sergeant and TPS Executive Officer, he was second in command to Griffin. - His operational role: he helped assemble the TPS overtime team, ensuring only “trustworthy” participants were selected, and instructed troopers in how to complete billing forms consistent with the scheme. - His supervisory function: troopers testified that they submitted false forms to Robertson for review/approval. - His directive to Kelley to shred incriminating forms, demonstrating control over a subordinate in furtherance (and concealment) of the scheme. Robertson argued that the destruction order was a single, after‑the‑fact obstruction incident and could not be the basis for a leadership role “in committing the offense.” The court avoided fully resolving that legal question because the totality of the evidence — rank, staffing decisions, instruction on billing, approval of forms, and the destruction order — amply supported a finding that Robertson managed the participation of at least one other actor in the fraud.

3. Abuse of public trust (§ 3B1.3)

Section 3B1.3 adds two levels if: 1. The defendant occupied a position of public or private trust, and 2. He abused that position in a way that significantly facilitated or concealed the offense. The court’s analysis: - Step 1 (position of trust): settled law in the First Circuit holds that **police officers are in positions of public trust** because they wield significant discretion. Robertson, as a state trooper and TPS sergeant, plainly qualified. - Step 2 (abuse): the district court found that Robertson used his position to: - Influence who was assigned to TPS overtime, thereby ensuring only participants willing to join the scheme were on the team (facilitating the offense). - Leverage his supervisory authority over Kelley to order destruction of official grant records (concealing the offense). - Access and control grant‑funded overtime opportunities that would not be available to ordinary members of the public. The court rejected Robertson’s argument that MSP and DOT did not view him as a fiduciary and thus there was no qualifying trust relationship. Citing cases like United States v. Sicher, the panel reiterated that § 3B1.3 does not require a formal fiduciary relationship; it looks to the degree of discretion and difficulty of detection conferred by the position, not to state‑law fiduciary formalities. The court distinguished United States v. George, which had addressed abuse of trust by an employee of a government contractor vis‑à‑vis the government. That scenario required careful analysis of when a private actor can be said to occupy public trust. Here, by contrast, the abuse flowed from a **public officer’s direct betrayal of governmental and grantor trust**, closely analogous to the guideline’s commentary example of a bank executive’s loan fraud.

D. Sentencing Disparities Under § 3553(a)(6)

Both defendants raised disparity arguments under 18 U.S.C. § 3553(a)(6), which instructs courts to consider: > “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.”

1. Robertson’s under‑developed comparator evidence

Robertson presented a table of 11 “similar” cases — mainly other MSP overtime‑fraud prosecutions — showing that: - 9 defendants received probation, - 2 received very short prison terms (2–3 months), and - None received a sentence approaching his 36‑month term. The table, however, listed only: - Defendants’ names, - Docket numbers, and - Sentences. It omitted key comparative data: - Charges and statutory counts, - Guidelines calculations and ranges, - Loss amounts, - Criminal histories, - Role enhancements or other adjustments, - Cooperation and plea agreements, - Differences in scheme duration and complexity. The First Circuit, relying on cases like United States v. González‑Rivera and United States v. Rodríguez‑Adorno, held that this sparse information **could not support a credible disparity argument**. To mount such a claim, a defendant must supply enough detail for the court to compare cases “apples to apples.” Without that, the court had no obligation to rummage through other dockets to fill in the gaps. The panel upheld the sentence but took the unusual step of flagging the **district judge’s rhetoric**: - The judge said she “took issue” with comparisons to other judges and cases and emphasized her 30 years’ experience. - She also commented that whether others were treated “lightly” did not alter the moral wrongfulness of Robertson’s conduct. The First Circuit expressed “disquietude” at these remarks, reminding that: - Considering comparative sentences is **not optional**; it is a statutory requirement under § 3553(a)(6). - A judge’s personal experience does not dispense with the duty to engage substantively with well‑presented disparity arguments. Even so, because Robertson had not given the court a legally adequate comparator record, the panel concluded there was no procedural error or abuse of discretion in rejecting his disparity argument.

2. Griffin’s more detailed, but ultimately unsuccessful, disparity claim

Griffin’s disparity presentation was more robust. He: - Provided a chart of other overtime‑fraud cases with additional details, - Acknowledged material differences between his case and others: - He alone faced a **conspiracy count** that multiplied loss across multiple participants and years. - His fraud period spanned three years — longer than the 7–24 months typical in comparator cases. - He received a 4‑level leadership enhancement, which other lieutenants in prior cases did not. - He pled guilty to **separate tax‑fraud and school‑aid fraud counts**, which no other trooper had. The First Circuit seized upon these admissions, holding that: - These differences were precisely the sort of “material differences” (nature and number of offenses, role, cooperation, and additional criminal conduct) that justify divergent sentences. - The fact that Griffin did not cooperate while some comparator troopers did further explained the harsher sentence. The court also rejected Griffin’s argument that sentencing disparities between him and **uncharged** troopers were unwarranted. Disparity under § 3553(a)(6) concerns convicted defendants; charging decisions and non‑prosecutions occupy a different analytical space and do not present a usable comparison for sentencing purposes. Impact: The decision reinforces that defendants must bring fully‑developed comparator records if they want disparity arguments to gain traction, and that differences in scheme scope, role, cooperation, and additional crimes will often be sufficient to explain divergent sentences even within seemingly similar case clusters.

E. Restitution Under the Mandatory Victims Restitution Act (MVRA)

Under the MVRA, 18 U.S.C. § 3663A, the court must order restitution to each victim in the **full amount** of their loss for certain property offenses, including fraud. In multi‑defendant cases, the court has two options: 1. Apportion restitution based on each defendant’s relative culpability or ability to pay, or 2. Impose **joint and several liability**, making each defendant liable for the full amount. Citing United States v. Ochoa and United States v. Carrasquillo‑Vilches, the First Circuit stressed that the choice between these options is committed to the district court’s “broad discretion,” especially in conspiracy cases. Here: - DOT’s loss from grant‑funded overtime abuse was calculated (from trial evidence) as $142,774.77. - The district court made both Griffin and Robertson jointly and severally responsible for that amount. - Robertson argued the court should have apportioned his share ($32,180.50) and should have required the government to prove DOT had not already recovered funds from other sources (to avoid a “windfall”). The First Circuit held: - The court had no obligation to apportion; it reasonably chose joint and several liability, a common practice in conspiracies where losses are intertwined. - The government met its burden of establishing loss by a preponderance through the trial record; Robertson offered no concrete evidence of any duplicate recovery, only speculation. - The district court did not abuse its discretion in declining to launch an open‑ended inquiry into possible recoveries not suggested by the evidence. The panel did note some loose language from the district court suggesting that restitution could later be adjusted and calling Robertson’s objections “premature.” It clarified: - Restitution is part of the sentence and must be set at sentencing; post‑sentencing modification is limited and controlled by statute. - However, because the court simultaneously indicated it was satisfied with the evidence and actually set a specific restitution figure at sentencing, any misstatements did not rise to reversible error.

F. Griffin’s Guidelines Challenges

1. Use of gain as a proxy for loss for Belmont Hill financial aid (Guideline § 2B1.1)

Guideline § 2B1.1(b)(1) increases the offense level according to the amount of “loss” from fraud. Application Note (B) allows a court to use **gain as an alternative measure** when actual loss “reasonably cannot be determined.” For the BHS counts: - Probation treated the full $176,700 in financial aid as the relevant amount for Guidelines purposes, framing it as “gain” because the money was obtained through fraudulent financial‑aid applications. - Griffin argued there was insufficient proof that the full amount was caused by his misstatements; some aid might have been given even if he had been honest. The First Circuit applied the causation and burden‑shifting framework from United States v. Alphas and United States v. Rivera‑Ortiz: 1. The government (or PSR) may initially use the **face value** of the fraudulent benefits (claims, subsidies, or in this case, aid) as a starting point. 2. The **defendant then bears the burden of production** to show which portions are legitimately obtained. 3. The court, weighing the full record, must find actual loss (or gain as proxy) by a preponderance. Here: - The PSR, supported by evidence of repeated misrepresentations, used $176,700 as Griffin’s gain. - The court invited Griffin to propose and substantiate an alternative figure. - Griffin argued only that the “correct” loss figure was zero because the government could not prove exactly what portion of aid would have changed — without offering any credible estimate or breakdown of legitimately‑obtainable aid. The First Circuit held: - A zero‑loss/gain figure was facially implausible given multi‑year fraud on the aid applications. - Griffin’s failure to meet his Alphas burden justified the district court in treating the full aid amount as his gain. - This did not violate the requirement that loss/gain “result from” the offense; the pervasive fraud in the applications contaminated the entire award, and Griffin did not disentangle any portion as legitimately awarded.

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

Grouping under § 3D1.2 is often a technical but impactful step. Under subsection (d), counts “are to be grouped” when: - The offense level is largely determined by total loss or another aggregate measure, and - The guideline for the offenses is listed in § 3D1.2(d)’s table of “to be grouped” guidelines. Guideline § 2B1.1 appears in that table. The district court: - Grouped all of Griffin’s **TPS fraud** counts and his **BHS financial‑aid fraud** counts into a single group because they all were sentenced under § 2B1.1. - Placed his tax‑fraud counts in a second group. - This increased his overall offense level by aggregating TPS and BHS losses/gains. Griffin argued that counts should not be grouped unless they involve: - The same victim, and - The same act/transaction or a common scheme or plan (the tests in subsections (a) and (b)). He maintained that TPS and BHS frauds involved: - Different victims (DOT/MSP vs. BHS), - Different conduct (falsified time sheets vs. falsified financial‑aid forms), and - Distinct harms. The First Circuit reaffirmed its prior holding in United States v. Zanghi: - When multiple counts are sentenced under guidelines listed in § 3D1.2(d), those counts are **automatically grouped** under subsection (d). - Zanghi held that counts involving two different guidelines on the same row must be grouped; here, the situation was even clearer because all fraud counts fell under the same guideline (§ 2B1.1) explicitly listed in the subsection (d) table. - The Guidelines’ commentary confirms this approach by giving as an example: multiple mail‑ and wire‑fraud counts from various schemes with monetary objectives are grouped together. Although the Second Circuit in Lenoci has taken a more restrictive view, the First Circuit, bound by its law‑of‑the‑circuit rule, declined to revisit Zanghi absent en banc intervention or contrary Supreme Court authority. Impact: In the First Circuit, where a defendant faces multiple fraud schemes sentenced under § 2B1.1, expect **mandatory grouping** under § 3D1.2(d) even if the scams have different victims and occur in different factual settings. This can sharply increase the aggregate loss figure and offense level.

G. Griffin’s Sentencing Disparity Analysis

While Griffin’s disparity presentation was more developed than Robertson’s, it ultimately undercut his own claim. He pointed out that: - Other MSP troopers convicted of comparable overtime schemes often received probation or very short sentences. - However, he also acknowledged that his case differed materially: - He was charged with and convicted of **conspiracy**, allowing aggregation of others’ fraudulent hours and losses over three years; - He held a **leadership role** and received a corresponding enhancement; - His fraud involved **multiple distinct schemes** — TPS overtime, school financial aid, and tax fraud — resulting in more counts and a higher total offense level; - He did not cooperate, whereas some comparators did. The First Circuit emphasized that § 3553(a)(6) concerns avoiding **unwarranted** disparities among similarly situated defendants. Once key distinctions in: - Total criminal conduct, - Role in the offense, - Cooperation, and - Guideline ranges are acknowledged, a higher sentence is justified. The panel found Griffin’s 60‑month sentence — within his Guidelines range — to be both procedurally sound and substantively reasonable.

H. Forfeiture: “Proceeds Traceable To” BHS Financial‑Aid Fraud

This is the one area where Griffin prevailed.

1. Statutory framework

Under 18 U.S.C. § 981(a)(1)(C), the United States may forfeit: > “Any property, real or personal, which constitutes or is derived from proceeds traceable to” specified predicate offenses, including wire fraud. Section 983(c)(1) places the burden on the government to prove, by a preponderance of the evidence, that the property is subject to forfeiture. “Proceeds” are defined differently depending on whether the offense involves: - “Illegal goods, illegal services, or unlawful activities” (§ 981(a)(2)(A)), or - “Lawful goods or services sold or provided in an illegal manner” (§ 981(a)(2)(B)). Regardless of which definition applies, the key causal phrase is the same: the property must be “traceable to” the offense. The First Circuit did not settle whether Griffin’s BHS aid was governed by (A) or (B), holding that the result was the same under either.

2. The government’s theory and the problem

The government: - Sought a forfeiture judgment of **$177,600**, the full amount of financial aid BHS granted to Griffin’s family over seven years. - Argued that because the aid was obtained through fraudulent applications, the entire amount was “proceeds traceable to” the wire fraud. The record, however, contained the following: - BHS officials testified that they could not say whether, and to what extent, the aid would have been different absent the misrepresentations. - The school declined to claim restitution and would not represent that it would have denied aid but for the fraud. - Nothing in the record quantified the difference between actual aid and the hypothetical award based on truthful information. The district court nonetheless ordered forfeiture of the entire $177,600, essentially equating “financial aid received” with “proceeds traceable to fraud.”

3. The First Circuit’s analysis: causation and traceability

Citing its own decision in United States v. George and persuasive cases from other circuits — notably United States v. Hodge (7th Cir.) and United States v. Torres (2d Cir.) — the court emphasized: - Forfeitable “proceeds” must be **“directly or indirectly obtained as a result”** of the offense. - The government must prove not just gross receipts but what portion of the property is causally connected to the criminal conduct. - In Hodge, a forfeiture of all revenues from a spa/prostitution front was vacated because the district court had failed to distinguish between money from legal massages and money from illegal prostitution. - In Torres, forfeiture was appropriately set at the exact amount by which government rent subsidies were reduced due to fraudulent income reporting — there, the amount saved by the defendant was directly equal to the fraud‑caused benefit. Applying that logic here: - The government showed that BHS granted $177,600 in aid, but - Did not prove what part, if any, of that total would **not** have been granted if Griffin had told the truth. - Without such proof, the court could not say, by a preponderance, that the full amount was “proceeds traceable to” the offense — i.e., but‑for the fraudulent misrepresentations. The panel also contrasted forfeiture with the Guidelines “gain” calculation: - For Guidelines purposes, the law tolerates some roughness; gain is used as a proxy to measure offense seriousness and culpability, and Alphas allows starting with the full amount and asking the defendant to carve out legitimate portions if he can. - For forfeiture, by contrast, precision matters more because the order directly confiscates specific property as punishment. - The burden remains on the government throughout; there is no Alphas‑style burden shift on this causation question in forfeiture. Accordingly, the court held that the government had **not met its statutory burden** as to the full $177,600. It vacated the forfeiture order and remanded, directing: - The government may attempt to prove what portion of the financial aid was actually caused by the fraud — i.e., what part would not have been granted on honest applications. - Only that portion is forfeitable as “proceeds traceable to” the offense. - If the government cannot supply a non‑speculative, evidence‑based division between legitimate and illegitimate aid, no (or only a reduced) forfeiture may be appropriate. The panel also noted, in passing, the somewhat unsettling optics: - BHS did not want restitution and would not say that the aid depended on the misrepresentations; - Yet the government sought to seize the full amount as forfeiture, a purely punitive remedy. - The court cautioned that forfeiture should not function as a backdoor punishment severed from proof that the property was in fact the fruit of the offense. Impact: This is a significant holding for cases involving fraudulently obtained but partly legitimate benefits — such as student financial aid, welfare benefits, subsidies, grants, or reimbursement programs. It underscores that: - For **Guidelines loss/gain**, courts may reasonably approximate and can use total receipts as a starting point if defendants do not substantiate carveouts. - For **forfeiture**, the government must affirmatively prove the portion of the benefit “traceable to” fraud; mere gross‑amount evidence may be inadequate where the benefit is needs‑based or partly legitimate.

V. Simplifying Key Legal Concepts

To clarify some of the technical doctrines used in this opinion:

1. Wire fraud (18 U.S.C. § 1343)

Wire fraud occurs when someone: - Intentionally engages in a scheme to defraud (usually by deception), and - Uses, or reasonably expects the use of, interstate wire communications (phone, internet, electronic funds transfer, etc.) to carry out or conceal the scheme. A participant in a common scheme can be liable for wires sent by other participants if those uses of wires are reasonably foreseeable.

2. Theft concerning programs receiving federal funds (18 U.S.C. § 666)

Section 666 applies when: - An organization (e.g., a state agency) receives more than $10,000 in federal funds in a one‑year period, and - An agent of that organization intentionally steals, embezzles, or fraudulently obtains property worth $5,000 or more under its control. Here, MSP received federal highway‑safety grants; false billing for overtime from those funds falls squarely under § 666.

3. Mandatory Victims Restitution Act (MVRA)

The MVRA requires courts to order restitution: - For certain enumerated offenses, including property crimes and fraud, - In the full amount of the victim’s loss, regardless of the defendant’s ability to pay. In multi‑defendant conspiracies, the court may: - Make each defendant jointly and severally liable for the full loss; or - Apportion liability based on role, culpability, or financial capacity.

4. Criminal forfeiture vs. restitution

- **Restitution** aims to make victims whole. Money goes to the victim, and the amount is tied closely to victim loss. - **Forfeiture** is punitive: it strips the defendant of property gained from crime, regardless of whether a particular victim wants or receives compensation. Money goes to the government. The same dollars can sometimes be both “loss” for restitution and “proceeds” for forfeiture, but the legal theories, burdens, and remedies are distinct.

5. Guidelines loss and gain (U.S.S.G. § 2B1.1)

For fraud: - “Loss” generally means the greater of actual loss (money actually taken) or intended loss (money the defendant intended to take), subject to evolving definitions. - If actual loss cannot reasonably be determined, the court may use the defendant’s **gain** (how much he pocketed) as a rough measure. - The loss/gain figure drives a matrix of offense level increases.

6. Grouping counts (U.S.S.G. § 3D1.2(d))

When a defendant has multiple counts, the Guidelines prevent double‑counting by “grouping” counts causing similar or related harm, especially when: - The offense level depends on total loss or quantity. - The guideline (§ 2B1.1, in this case) is on § 3D1.2(d)’s list of guidelines that are “to be grouped.” Grouped counts are treated as one unit, with a combined loss, avoiding mechanical stacking.

7. Zero‑point offender reduction (§ 4C1.1)

Newer guideline meant to reduce sentences for: - First‑time offenders (no criminal history points), - Who meet a list of criteria (no violence, no severe bodily injury, no recent prior offenses, no aggravating role, etc.). Failure to meet **any** of these criteria disqualifies the defendant.

8. Leadership role (§ 3B1.1) and abuse of trust (§ 3B1.3)

- **Leadership/managerial role**: focuses on whether the defendant directed or managed at least one other participant. Titles matter less than conduct (planning, directing, recruiting, controlling others, or taking a larger share). - **Abuse of trust**: applies when the defendant’s position gave him special discretion and reduced supervision, making it easier to commit or hide the crime (e.g., bank officer, public official, fiduciary); the abuse must significantly facilitate or conceal the offense.

9. Joint and several liability

When defendants are jointly and severally liable: - Each is individually responsible for the full amount of restitution or forfeiture. - The government or victim can collect from any one until the full amount is reached, though defendants may later seek contribution among themselves.

10. Rule 12(b)(3) pretrial motions

Certain challenges — especially constitutional attacks on a statute’s application or the adequacy of an indictment — must be raised: - Before trial, by a court‑set deadline, - If the issue can be decided without trial and was reasonably available. Missing this deadline without “good cause” results in waiver and forecloses even plain‑error review on appeal.

VI. Broader Implications and Practical Takeaways

1. For law enforcement and public‑corruption cases

- The decision confirms that **abuse of public trust** and **leadership enhancements** will be applied robustly to supervisors in public‑corruption and grant‑fraud cases, particularly where they shape personnel decisions and pressure subordinates to cover up schemes. - Reliance on “departmental culture” or flawed internal practices will rarely defeat clear evidence that officers knew they were cheating federal programs.

2. For defense counsel

- **Raise constitutional and facial/as‑applied vagueness challenges early** and in writing under Rule 12(b)(3); delay can forfeit them entirely. - When challenging loss or gain, you must **propose an alternative, evidence‑based calculation**, not simply argue “zero” or “the government hasn’t proved it” where pervasive fraud is shown. - For **sentencing disparity** arguments, you need a detailed comparative record: charges, guidelines ranges, criminal histories, enhancements, cooperation, and nature/length of the schemes. Bare lists of other sentences will not suffice.

3. For prosecutors

- When seeking forfeiture of benefits that may be partly legitimate (financial aid, subsidies, reimbursements), you must be prepared to **disaggregate** and prove what portion of the benefit was actually caused by the fraud. - Do not assume that obtaining the full amount through misrepresentation automatically makes every dollar forfeitable if the underlying benefit program is needs‑based or partially discretionary. - In multi‑scheme fraud cases under § 2B1.1, expect grouping to combine losses/gains across distinct schemes, increasing offense levels.

4. For sentencing judges

- The decision reaffirms that courts must: - Calculate the Guidelines correctly using current law, even if co‑defendants were sentenced differently earlier in the case. - Consider, rather than reflexively dismiss, comparative‑sentencing arguments that are adequately supported. - Tone matters: while a judge may conclude a disparity argument fails on the merits, comments suggesting hostility to comparing sentences risk inviting appellate scrutiny.

5. For institutions and grant administrators

- Federal grant‑funded overtime programs (especially in law enforcement) are under close scrutiny; time‑keeping violations can readily turn into **federal wire‑fraud and § 666 prosecutions**. - Agencies should ensure written policies explicitly address pyramiding, shift length, and documentation retention; violations can significantly aggravate sentencing exposure.

VII. Conclusion

United States v. Griffin & Robertson is a comprehensive First Circuit opinion that: - Affirms broad criminal liability and sentencing enhancements in a high‑profile police overtime‑fraud scheme; - Clarifies important Guidelines issues, including the scope of the zero‑point offender reduction and the mandatory grouping of multiple fraud schemes under § 3D1.2(d); - Emphasizes the defendant’s evidentiary burden in challenging loss/gain calculations and in invoking sentencing disparity; and - Most significantly, draws a sharp line in forfeiture law: when a defendant fraudulently obtains a benefit that could have been partly legitimate, the government must prove what portion of the benefit is truly “proceeds traceable to” the offense, or risk losing its forfeiture claim. In doing so, the court harmonizes its approach with Supreme Court guidance and other circuits, while offering a cautionary note to trial judges about fulfilling their statutory duty to consider comparative sentencing evidence with appropriate seriousness and care. The only relief for the defendants — vacatur of the BHS forfeiture order — underscores the principle that, even in the face of substantial wrongdoing, procedural rigor and statutory burdens of proof in forfeiture must be scrupulously observed.