United States v. Seth M. Bourget

United States Court of Appeals
For the First Circuit
No. 23-1582
UNITED STATES,
Appellee,
v.
SETH M. BOURGET,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Denise J. Casper, U.S. District Judge]
Before
Montecalvo, Lynch, and Kayatta,
Circuit Judges.
Benjamin Brooks, with whom Good Schneider Cormier Fried &
Brooks was on brief, for appellant.
Karen Eisenstadt, Assistant U.S. Attorney, with whom Joshua
S. Levy, U.S. Attorney, was on brief, for appellee.
August 21, 2026

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MONTECALVO, Circuit Judge. Correctional Officer Seth
Bourget challenges his criminal conviction for deprivation of
rights under color of law in violation of 18 U.S.C. § 242, arguing
that the evidence admitted at trial was insufficient to support a
finding of guilt and raising several other issues for our review.
This appeal stems from an incident occurring on June 18,
2019, when correctional officers with the Bureau of Prisons ("BOP")
at the Federal Medical Center Devens ("FMC Devens") performed what
officers term a "forced cell move," where they use force to enter
a cell, secure the individual inside, and then move that individual
to another location. On that day, Bourget was part of the
five-person use-of-force team that executed a forced cell move on
KT,1 an inmate who was in a holding cell with his hands handcuffed
behind his back. Bourget, equipped with a large shield, was the
first officer to enter the holding cell. Bourget entered at full
speed and struck KT with the shield in the chin and face. As a
result, KT fell back, hit his head, and suffered serious injuries
to his head and face. The incident was captured on video, which
was played at trial.
Bourget initially faced two criminal charges of
deprivation of rights under federal law related to this incident.
He proceeded to a jury trial in federal court that resulted in an
1 Consistent with the record and the parties' briefing, we
refer to this individual by his initials.

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acquittal on one count; however, the jury was hung as to the other
count. Bourget was then retried on the remaining count, which
alleged that Bourget violated KT's Eighth Amendment rights by
striking KT with the shield with excessive force while KT was
handcuffed inside the holding cell. The second jury trial resulted
in a conviction; Bourget now challenges that conviction on appeal.
For reasons we will explain below, Bourget's challenges fail, and
we affirm the conviction.
I. Background
"We review the facts in the light most favorable to the
jury's guilty verdict." United States v. Lee, 790 F.3d 12, 13
(1st Cir. 2015). Here, we focus on the facts and procedural
history relevant to the legal issues raised, including video
evidence in the appellate record. See United States v. Howard, 66
F.4th 33, 37 n.1 (1st Cir. 2023); see also Bannon v. Godin, 99
F.4th 63, 69-70, 81 (1st Cir. 2024) (relying on footage from
traffic cameras and officer body-worn cameras).
A. The Incident
In December 2018, KT was incarcerated at FMC Devens,
where he was also provided mental health treatment. During his
time at FMC Devens, KT experienced delusions and auditory
hallucinations; in addition to being diagnosed with "unspecified
psychotic disorder," he was also diagnosed with
"neurodevelopmental disorder" and "autistic spectrum disorder."

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The staff psychologist likened KT's mental capacity to the "range
between a child and a teenager," and described KT as "the most
mentally ill person" he had ever seen. KT's physical health was
also deteriorating; he lost approximately 70 pounds in the
preceding year and a half, now weighed around "160, 150-something"
pounds, and did not have much muscle definition. Although KT had
not been physically assaultive towards staff, he did, at one point,
spit on the staff psychologist, which is considered a staff
assault. As a result of this incident, KT's picture was included
in FMC Devens's "electronic posted picture file," a list alerting
officers to be aware of certain individuals.
On June 18, 2019, an altercation occurred between KT and
a nurse in the N-3 housing unit, a semi-locked unit that KT had
been moved to that day. The nurse activated his body alarm and
sprayed KT with oleoresin capsicum ("OC") spray, also known as
pepper spray. Officers, including Bourget, arrived to assist the
nurse and restrained KT, securing KT's hands behind his back with
handcuffs and moving him from the N-3 unit to a holding cell in
the N-1 unit. Bourget began operating a handheld camcorder during
the move from N-3 to N-1. Unlike the N-3 unit, where incarcerated
individuals have the opportunity to walk around the unit and
interact with each other, the N-1 unit is a locked mental health
unit. The N-1 unit is considered the highest level of security at
FMC Devens.

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The officers locked KT in a holding cell in the N-1 unit,
with his hands still handcuffed behind his back. The officers
continuously monitored KT, and he was speaking incoherently to
them.
While in the N-1 holding cell, KT tried to spit on staff
who were outside the cell, including Bourget. KT's spit hit
Bourget in the face area and forearm; the spit appeared to be mixed
with blood. Bourget became concerned about contracting a disease
from the bloody spit and was "upset" and "scared." On the video,
Bourget can be heard saying "f***" in response to the spitting and
then "f***" again as he walked away. Another officer took control
of the camcorder during this time; at some point, he placed it on
a trashcan outside of the holding cell. A different officer told
KT, "spit again and I'll fill your face full of spray, alright?"
The officers told KT that they needed his cooperation to
clean off the OC spray. If he did not cooperate, they would have
to use more OC spray. KT continued to spit at officers, and an
officer sprayed KT with OC spray in response. This did not stop
KT from attempting to spit on officers. After KT continued to
spit, an officer is recorded saying to someone, "You going to get
the f****** shield anytime soon here, or what?" At one point,
Bourget returned to the area and said that he also wanted to spray
KT with OC spray. Lieutenant Joseph Lavorato was the supervising

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officer, and, at this point, he indicated to the officers not to
spray KT further.
KT was then left walking in circles in the holding cell,
still speaking incoherently and handcuffed behind his back.
Meanwhile, a use-of-force team was assembled to decontaminate KT
and move him from the holding cell. Bourget was identified as
"the number one man" on the use-of-force team, meaning he was the
first in line to enter the holding cell and "responsible for
securing [KT's] head and torso." One officer testified at trial
that Bourget volunteered for this position.
Almost an hour after KT was initially placed in the
holding cell, the use-of-force team headed to the area outside of
the cell. Bourget, who got there first, said "f*** you" to KT.
The rest of the use-of-force team joined Bourget shortly
thereafter, and they waited directly outside of the holding cell.
Lieutenant Lavorato asked KT multiple times to turn around and lay
down on the ground so that they could "get [him] cleaned up." One
unidentified officer on the team stated, "you're going to get
one . . . oh, you're going to get one." KT did not lie on the
ground but instead stood near the opening of the holding cell and
responded incoherently, such as by spelling his last name out loud.
The holding cell was then unlocked, and the use-of-force
team entered at full speed, with Bourget, holding a shield, at the
front of the group. Bourget entered first and hit KT with the top

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of the shield, using an upward motion that caused the shield to
hit KT's chin and face. As a result, KT fell back and hit his
head on the wall and/or floor.
Once on the ground, KT cried out in pain and again spoke
incoherently. Blood was smeared on the wall and pooled on the
ground where KT had been tackled. The officers eventually washed
the OC spray off KT and brought him to a different cell in the N-1
unit.
Later that night, KT was sent to the hospital. There
was a 2.5-centimeter laceration on the lower left side of his face
and a 3-centimeter laceration on the back of his scalp. Doctors
used twelve staples to close the wound on the back of KT's head.
After KT returned to FMC Devens, several medical staff noted his
injuries. The day after the incident, a physician assistant at
FMC Devens observed that KT had "[a] lot of bruising and swelling
over different parts of [his] face," and, a couple days later, the
staff psychologist observed that KT still had notable swelling and
bruising to his face.
When a forced cell move like this is completed, FMC
Devens staff review the use of force to ensure proper procedure
was followed. This led to an investigation into the incident,
and, eventually, criminal charges were brought against Bourget and
Lavorato.

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B. The Indictment
On February 5, 2020, a grand jury charged Bourget and
Lieutenant Lavorato under a four-count indictment. As relevant to
this appeal, the indictment charged Bourget with two counts of
deprivation of rights under color of law in violation of 18 U.S.C.
§ 242 for: (1) allegedly dropping his knee on KT's head while KT
was handcuffed and restrained on the ground after the initial
altercation with the nurse in N-3 and (2) striking KT with a
protective shield with excessive force while KT was handcuffed
inside the holding cell. The remaining counts were charged against
Lavorato.
C. The First Trial
The initial trial in spring 2022 lasted thirteen days.
Bourget and Lavorato were tried together and both testified in
their defense. Employees who worked at FMC Devens at the time of
the incident, including fourteen officers and five medical
professionals, also testified. Two other federal law enforcement
officers and two expert witnesses also testified.
Several videos of the incident -- beginning with the
altercation in N-3 and continuing through the forced cell move in
N-1 -- were introduced into evidence. Two stationary surveillance
cameras recorded the incident without sound (one in N-3 where the
altercation with the nurse occurred and one in N-1 where the
remainder of the incident occurred). Two hand-held video

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recorders, or camcorders, also recorded the incident with audio.
One of those camcorders was the one Bourget initially manned in
N-1 and that was later inadvertently left on a trashcan facing the
holding cell. The other camcorder was used during the forced cell
move and was operated by then-Lieutenant Benjamin Quinn, who was
"the number six man" on the use-of-force team -- the sixth to enter
the holding cell, whose only duty was to man the camera.
Relevant to this appeal, in the first trial, Captain
Michael Bollinger testified about a use-of-force training class he
taught at FMC Devens. He explained that the general BOP policy is
"to use the minimum amount of force necessary to resolve [a]
situation." Bollinger also explained why and how an officer may
escalate force depending on the circumstances. In doing so,
Bollinger noted that during forced cell moves, officers may use a
shield but that "[i]t should be used as a protection, never as a
weapon."
During Bollinger's testimony, defense counsel asked
about a video shown at training at FMC Devens portraying a prior
forced cell move of an incarcerated person named Sion (the "Sion
video").2 Bollinger testified that the Sion video was used as an
example to explain to officers how to transition from lesser to
greater uses of force "for a disruptive inmate, such as going from
2 Because this video is the focus of one of the main issues
on appeal, we describe it in detail.

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OC spray to the pepper ball launcher to the stun gun to, in [Sion's]
case . . . an OC grenade which basically explodes in the cell and
puts OC projectant [sic] out in the air and also strikes the inmate
with rubber balls to create a deflection so that the team can go
in on him." Bollinger specifically testified that the video was
not used in training as "an illustration of how a forced cell move
should be done." He instead explained, "I showed that video
because we were getting into that use of transitioning [between
different] less than lethal [means of force], and I thought the
lieutenant did an excellent job dictating on video how he was
transitioning from one less lethal [means] to the next." The Sion
video then came into evidence without objection from the
government.3
The Sion video shows Sion refusing to voluntarily submit
to being restrained in handcuffs and moved to a different unit.
Sion had a history of refusing orders, refusing programs, and
assaulting staff. A use-of-force team was compiled to move Sion
between units; Bourget was the "number one man" on that
use-of-force team just as he was in the incident at issue.
As seen in the video, when the use-of-force team
approached Sion's cell, Sion was not handcuffed, and he was lying
3 Although the government objected to a portion of the video
based on relevance, it did not otherwise take a position on the
remainder of the video.

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in bed; he soon got up once the officers approached. The officers
repeatedly asked Sion if he was willing to be moved and asked him
to come to the door to "cuff up," but he did not respond. The
officers then used a short burst of OC spray when Sion did not
respond to the "last direct order." Sion still refused to respond
to orders, and so the officers used another short burst of OC
spray. At this point, Sion walked away from the door of his cell,
and the officers transitioned to the use of pepper bombs. Sion
continued to refuse orders, and an additional round of pepper bombs
were deployed.
The officers then gave Sion additional time to comply
with their orders. But Sion instead went over to the sink in his
cell and attempted to clean the OC spray from his face. The
officers warned Sion that they were going to deploy stun munition
because he was not complying with their order to come to the door.
The officers then used a stun grenade, after which the use-of-force
team entered the cell to restrain Sion. The officers quickly
entered the room (without a shield) and brought Sion to the ground.
Once restrained, the officers were able to move Sion out of his
cell and take him to be decontaminated.
After the video was shown to the jury, Bollinger noted
that the main difference between the threat Sion posed in the video
and the threat KT posed in the situation here was that KT was
restrained with his hands handcuffed behind his back, whereas Sion

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was not restrained in any way. Bollinger also again confirmed
that the Sion video was used in training "to show how we would
transition through [different tiers of] less than lethal" force.
The Sion video was later briefly mentioned by defense counsel at
closing arguments and only to note that a shield was not used
during that forced cell move.
After the close of evidence, the case went to the jury,
which found Bourget not guilty on the count involving the alleged
knee drop and found Lavorato not guilty on both counts against
him. The jury could not reach a verdict as to the remaining count
against Bourget related to striking KT with the shield, and so the
district court declared a mistrial on that count. The government
sought a retrial.
D. The Second Trial
The second jury trial was held in December 2022. This
time, the trial lasted only seven days and included far fewer
witnesses. Eight officers and four medical professionals who
worked at FMC Devens at the time of the incident testified.
Additionally, one other federal officer and two expert witnesses
testified. Bourget did not testify in his defense. The videos of
the incident that were introduced at the first trial were also
introduced at the second trial.
At the second trial, Bourget again requested to
introduce the Sion video into evidence. In support of admission,

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Bourget contended that the Sion video was "used each year in the
annual training" to show "a proper forced cell move." But, unlike
in the first trial, the government objected to the introduction of
the Sion video, arguing that the video was inadmissible and being
used to show Bourget's prior good acts. The government emphasized
that the testimony from the first trial established that the Sion
video is used in training only to show how to transition between
different types of uses of force but "had nothing to do with" a
forced cell move.
After initially reserving on the question of the
admission of the Sion video in order to first reexamine the video
and the prior testimony, the district court did not allow the video
into evidence. The court gave two reasons for excluding the Sion
video: first, it found the video irrelevant because the
circumstances in the video were "very different" than the
circumstances in this case; and, second, "to the extent it ha[d]
any relevance . . . the probative value [wa]s substantially
outweighed by any . . . danger of confusion or unfair prejudice."
In reaching those conclusions, the court reasoned that
the video "involved not only a different inmate, [but] an inmate
who was not restrained, and it involved OC spray and then an
escalation to a pepper spray bomb, an OC bomb." Because those
circumstances were so different from the case here, the court
determined that the video "would [not] be helpful to the jury in

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deciding the critical issues and the contested issues they have to
decide here." The district court also focused on the Sion video
being "used in training for another purpose," namely a portrayal
of how to transition between different levels of force, rather
than to show how to complete a forced cell move. In support of
its understanding of the purpose of using the Sion video in
training, the district court pointed to Captain Bollinger's
testimony that he "showed [the Sion] video because [they] were
getting into . . . transitioning . . . from one [use of force] to
the next" and not to show how to complete a forced cell move. The
district court also found that the same analysis supported holding
that even if the video had some relevance, it was substantially
outweighed by the "danger of confusion or unfair prejudice."
In response, Bourget argued, again, that the Sion video
is used for training and the video would be introduced to show
"this is all the officers get, one to two hours in refresher
training in a classroom, and then they show a video." The district
court noted that it had taken this argument into consideration and
that, even without the admission of the video, Bourget could make
an argument regarding his training. However, the court again
highlighted that "even the person in charge of training, namely,
Bollinger, notes the video is used in training for another
purpose." Thus, the court reiterated that "to the extent that
[the Sion video] is used in the training, it's not relevant to the

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decision this jury has to make in regards to excessive use of
force."
A great deal of the trial testimony in the second trial
focused on how officers are trained to perform forced cell moves.
Captain Bollinger testified -- as he did in the first trial -- and
much of his testimony centered on how he trained officers on use
of force at FMC Devens. Bollinger said that "[s]taff are trained
to use the minimum amount of force necessary to control a
situation." He also stated that, typically, a forced cell move
would be performed on an unrestrained individual, and officers
were trained "to get into the cell as quickly as possible and
restrain that inmate." Bollinger gave the example of a 70-year-old
inmate who is sitting on his bed but not presenting his hands to
be handcuffed. He said, in that situation, he would tell officers
"run in as quickly as you can, and grab ahold of his arms" but not
to go in "and smash the guy." Bollinger also testified that a
shield is "a defensive piece of equipment [that is] not ever
trained to be used offensively in a forced cell move." And he
testified that he had never instructed any officers to move a
shield "in an upward fashion" because that "could cause extreme
injury to the head or neck area," including "serious injury . . .
and/or death." When discussing the incident with KT, Bollinger
testified that Bourget's entry into the cell was not consistent
with the training and instruction that he gave on the use of force

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because Bourget used the shield offensively, bringing the top of
the shield "up very quickly" into KT's "neck area" and "throwing
[KT's] head back."
Other officers also testified about the training
received at FMC Devens. The federal officer who led the
investigation into the incident believed that officers are "told
to be dynamic, go quickly" but that entering "at full speed, 100
percent" was not necessarily the language used. A former FMC
Devens officer noted that "[e]very cell entry is different" so
officers do not always enter at "full speed" and are trained to
use "the minimum amount of force needed." But other officers
testified that they "always enter [cells] at 100 percent" and that
they enter "[a]s fast as [they] can get in there" when completing
a forced cell move.
Captain Benjamin Quinn4 testified regarding the
reactions of the other officers when they saw the video of the
forced cell move recorded by the camcorder that was left on the
trashcan. Shortly after the incident occurred, Quinn watched the
video with Officers Corey, Kennedy, and Brown in the officer
station. Quinn testified that Officer Corey had already watched
the video and commented that "it was bad." Quinn took this to
mean that the video "wasn't going to be [] good" and that the entry
4 Quinn was a lieutenant at the time of the incident but was
promoted to captain by the time of the second trial.

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into the holding cell "probably was not a policy move." After
Quinn viewed the video, he agreed "that it was bad . . .
[s]pecifically the way that the shield was used."
After deliberating, the jury returned a guilty verdict.
Bourget had moved for a judgment of acquittal at the close of the
government's case and at the close of evidence, he did so again
after the verdict was rendered; the district court denied the
motions. The district court subsequently sentenced Bourget to a
year and a day in prison, followed by two years of supervised
release. Bourget now appeals his conviction.
II. Discussion
Bourget challenges his conviction on several grounds.
First, he argues the evidence was insufficient to support a finding
that his use of force against KT was malicious and sadistic or
that he acted with specific intent to deprive KT of his
constitutional rights. Second, he argues that the jury
instructions failed to explain the requisite standard the jury had
to apply in finding intent. Third, he argues that his right to
present a complete defense was violated by the district court's
exclusion of the Sion video in his second trial. Fourth, he argues
that he was prejudiced by hearsay and opinion testimony admitted
at his second trial. And finally, Bourget argues that these
cumulative errors, along with others, prejudiced him and deprived
him of a fair trial.

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A. Sufficiency of the Evidence
We review de novo the sufficiency of the evidence,
"scrutinizing the record as a whole, drawing all reasonable
inferences in favor of the verdict, and avoiding any credibility
judgments, to determine whether any rational factfinder could have
found each element of the crime proved beyond a reasonable doubt."
United States v. DeCologero, 530 F.3d 36, 65 (1st Cir. 2008). "To
uphold a conviction, the court need not believe that no verdict
other than a guilty verdict could sensibly be reached, but must
only satisfy itself that the guilty verdict finds support in a
plausible rendition of the record." Id. (quoting United States v.
Echeverri, 982 F.2d 675, 677 (1st Cir. 1993)).
Bourget was convicted under 18 U.S.C. § 242, a charge of
deprivation of rights under color of law. As relevant here, that
statute criminalizes the behavior of any person (1) acting under
color of law who (2) willfully (3) deprives another person "of any
rights, privileges, or immunities secured or protected by the
Constitution or laws of the United States" (4) causing "bodily
injury" as a result from these actions. 18 U.S.C. § 242; see
United States v. Bailey, 405 F.3d 102, 111 (1st Cir. 2005).
Bourget was convicted under this statute for willfully violating
KT's Eighth Amendment rights under the U.S. Constitution. Bourget

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argues that the evidence at trial was insufficient to satisfy both
the deprivation and willfulness elements under the statute.5
1. Deprivation of Eighth Amendment Rights
Under the deprivation of rights element, we are focused
on the violation of KT's Eighth Amendment right to be free from
cruel and unusual punishment. "A prison official violates the
Eighth Amendment only when two requirements are met": an objective
and subjective requirement. Cintron v. Bibeault, 148 F.4th 37, 47
(1st Cir. 2025) (cleaned up) (quoting Farmer v. Brennan, 511 U.S.
825, 834 (1994)). The objective requirement provides that "the
deprivation alleged must be, objectively, sufficiently serious."
Id. (quoting Farmer, 511 U.S. at 834). The subjective requirement
provides that "a prison official must have a sufficiently culpable
state of mind." Id. (quoting Farmer, 511 U.S. at 834). Because
Bourget focuses his appeal only on the subjective requirement,
that is where we focus our analysis.6
Under the subjective requirement, when faced with a
prison disturbance, the question of whether the defendant's action
caused "unnecessary and wanton pain and suffering," such that the
5 As the parties do in their briefing, we begin with the
deprivation element. This approach makes sense because, as is
evident in our discussion, the Eighth Amendment analysis of the
deprivation element also involves the defendant's state of mind.
6 Because Bourget does not raise any argument as to the
objective requirement, any potential argument is waived. See
Toloza-Jiménez v. Gonzáles, 457 F.3d 155, 160 (1st Cir. 2006).

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defendant had the requisite culpable state of mind, "turns on
whether force was applied in a good faith effort to maintain or
restore discipline or maliciously and sadistically for the very
purpose of causing harm." Hudson v. McMillian, 503 U.S. 1, 6
(1992) (quoting Whitley v. Albers, 475 U.S. 312, 320-21 (1986)).
In answering this question, we address the following factors laid
out by the Supreme Court, known as the "Whitley factors":
(1) the extent of the threat to the safety of
staff and inmates, as reasonably perceived by
the responsible officials, (2) the need for
the application of force, (3) the relationship
between the need and the amount of force that
was used, (4) the extent of the injury
inflicted, and (5) any efforts made to temper
the severity of a forceful response.
Segrain v. Duffy, 118 F.4th 45, 56-57 (1st Cir. 2024) (cleaned up)
(quoting Staples v. Gerry, 923 F.3d 7, 13 (1st Cir. 2019)).
Because direct evidence of motive or intent is often lacking, the
Whitley factors may be used to "infer the existence of the
subjective state of mind required for an Eighth Amendment
violation." Id. at 61-62 (cleaned up) (quoting Dean v. Jones, 984
F.3d 295, 302 (4th Cir. 2021)).
Bourget does not directly apply the Whitley factors in
his briefing; instead, he argues that the evidence before the jury
supports only that he acted with deliberate indifference and not
with malicious and sadistic intent. In so doing, he contends that
KT spitting on him before Bourget entered the cell and Bourget's

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own language during the encounter (saying things like "f*** you")
are not enough to show he acted maliciously and sadistically. He
also emphasizes that he used a shield only at his lieutenant's
instruction and entered the cell at "100%" because that was how he
was trained. He does not address what the jury could have inferred
from the Whitley factors.
Applying the Whitley factors, we think a plausible
rendition of the record, when viewed in the light most favorable
to the verdict, supports the jury's conclusion that Bourget acted
with malicious and sadistic intent.
Under the first factor, a jury could have found that the
threat to the safety of staff and inmates was low when the officers
rushed KT and Bourget struck him with a shield, where KT was
standing still and handcuffed behind his back, had been sprayed
with OC spray several times, and had "[d]eteriorating" physical
health, such that he had lost weight, had "no muscular definition,"
and was described as "emaciated." Officers also testified that KT
did not make any threatening statements or aggressive movements at
the time of the forced cell move. The use-of-force team was
composed of five officers wearing protective gear, all entering
the cell together to restrain KT (with a sixth officer following
to record the incident on camera). Bourget, who was present before
the incident and led the team into the cell, was aware of these
facts before entering the cell and utilizing force and could and

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should have perceived the threat presented to be low. See Segrain,
118 F.4th at 62 (finding, at the summary judgment stage, that a
reasonable jury could find that the responsible official should
have perceived the threat as low where the incarcerated individual
was handcuffed and surrounded by six officers, even though he held
a prison-issued razor).
We turn next to the second Whitley factor -- the need
for the application of force -- and the third factor -- the
relationship between that need for force and the amount of force
used. Although the record indisputably supports a finding that
some use of force was necessary to decontaminate KT so that he did
not suffer further harm, the jury reasonably could have concluded
that the amount of force utilized here was disproportionately high
in relation to that need. The jury had the videos of the incident
before it -- as do we -- and could view the significant amount of
force used by Bourget when he speared KT with the shield. The
jury also heard evidence establishing how shields are meant to be
used defensively in this context and how that differed from
Bourget's offensive use here, causing KT further harm, and heard
testimony about the risk of serious injury or death posed by the
type of spearing, upward motion Bourget used. Though the jury
heard competing evidence as to how the officers were trained to
enter the cell and utilize force (with some officers testifying
they always enter a cell at 100 percent during forced cell moves

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and others testifying that the entry is fact-dependent but they
always use the minimum amount of force necessary), the jury was
able to consider and weigh that evidence in making its decision.
As to the fourth Whitley factor, the extent of the
injuries, the jury also heard evidence that, with his hands cuffed
behind his back, KT suffered significant injuries as a result of
being hit with the shield and forced backwards. When forced back,
KT hit his head on the wall and/or floor of the holding cell. The
jury saw videos of the incident, which showed blood smeared on the
wall and pooled on the floor of the holding cell. KT was treated
at a hospital later that night, and the procedure notes from that
visit identified a 2.5-centimeter laceration on the lower left
side of his face and a 3-centimeter laceration on the back of his
scalp. Twelve staples were needed to close the wound on the back
of KT's head. One lieutenant saw KT the day after the incident
and testified that the injuries he observed on KT "weren't normal"
compared to injuries he had previously seen on inmates after a
calculated use of force, which were typically less severe. The
physician assistant who saw KT the morning after the incident
testified that KT had "[a] lot of bruising and swelling over
different parts of the face with the wound -- the stitches in the
left lower cheek." The jury also heard evidence that a couple of
days after the incident, the staff psychologist at FMC Devens noted
that KT still had "[a] lot of swelling and bruising around his

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face." The jury reasonably could have concluded that KT's injuries
were significant.7
On balance, viewing the record in the light most
favorable to the verdict, the Whitley factors weighed in favor of
inferring that Bourget acted with malicious and sadistic intent.
Further, despite Bourget's arguments to the contrary, the jury was
also presented with direct evidence of Bourget's specific intent,
including his use of language (saying "f***" and "f*** you") and
expressed desire to spray KT with OC spray.
For these reasons, a plausible rendition of the record
supports the jury's finding that Bourget acted with malicious and
sadistic intent and (because Bourget does not challenge the
conclusion that the objective requirement was met) accordingly
deprived KT of his Eighth Amendment rights.
2. Willfulness
We next turn to the willfulness element. When the word
willful is "used in a criminal statute, it generally means an act
done with a bad purpose." Screws v. United States, 325 U.S. 91,
7 Although we need not go through a recitation of each
factor, we note that as to the fifth Whitley factor -- whether
efforts were made to temper the severity of the response -- it is
difficult to say how it weighs here. After the use-of-force team
entered the cell, following Bourget's strike with the shield, the
team promptly decontaminated KT from the lingering OC spray.
Despite the officers' attention to decontaminating KT, they did
not appear to focus on KT's other injuries, and medical staff soon
took over. Thus, this factor tends to weigh neutrally as to
Bourget's efforts to temper the severity of the use of force.

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101 (1945) (quoting United States v. Murdock, 290 U.S. 389, 394
(1933)). Section 242 is not "a trap for law enforcement agencies
acting in good faith" but, instead, applies to officials who
"either know[] or act[] in reckless disregard of [the statute's]
prohibition of the deprivation of a defined constitutional or other
federal right." Id. at 104. A defendant's bad purpose does not
need to be expressed; it can instead be "reasonably inferred" from
the circumstances. Id. at 106. "The requisite intent could be
established by 'all the attendant circumstances -- the malice of
the defendant, the weapons used in the assault, its character and
duration, the provocation, if any, and the like.'" United States
v. Marler, 756 F.2d 206, 217 (1st Cir. 1985) (cleaned up) (quoting
Screws, 325 U.S. at 107).
Bourget argues that the jury could not infer that he had
the requisite specific intent because he did not engage in a
pattern of abusing KT, he had been trained to enter the cell at
"100%," and he had not received instruction on how to use the
shield. But, viewing the evidence in the light most favorable to
the verdict, we see the evidence differently.
Bourget does not recognize that the jury heard competing
evidence as to how officers were trained and how much force should
have been used in this circumstance under that training. Although
there was evidence that supported Bourget's theory that officers
were taught to enter a cell at 100 percent, several witnesses

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instead testified that officers were to enter the cell quickly and
then use the minimum amount of force necessary. See United States
v. Hill, 99 F.4th 1289, 1307 (11th Cir. 2024) (reasoning that
"where the officer's actions so obviously violate his training on
the use of force, a jury may infer that the violation was willful"
(cleaned up) (quoting United States v. Brown, 934 F.3d 1278, 1297
(11th Cir. 2019))). The jury was also presented with evidence
that Bourget was upset about being spit on and made several
negative comments towards or near KT. Additionally, an officer
testified that Bourget volunteered to be the number one man on the
use-of-force team. Finally, and most importantly, a jury could
reasonably find that, as five officers in body armor rushed the
handcuffed KT, there was no reason to use a shield as a spear other
than to harm KT. The jury could weigh the evidence and plausibly
find that Bourget's statements and actions were probative of his
malice towards KT and, accordingly, his state of mind when using
the shield offensively and utilizing force against KT. See Marler,
756 F.2d at 217.
For these reasons, viewing the record in the light most
favorable to the verdict, a jury could have found that Bourget had
the requisite state of mind here. Accordingly, a rational
factfinder could have found each of § 242's elements was
established beyond a reasonable doubt under a plausible reading of
the record. Bourget cannot overcome the formidable standard of

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review required to succeed on this argument. Thus, we hold that
Bourget's sufficiency challenge fails.
B. Jury Instructions
We briefly turn to Bourget's challenge to the jury
instructions relating to the elements of willfulness and the
deprivation of his Eighth Amendment rights. We review preserved
challenges to jury instructions de novo. United States v.
Delgado-Marrero, 744 F.3d 167, 184 (1st Cir. 2014).
Bourget argues that the jury instructions were wrong in
two ways, again focusing on the deprivation and willfulness
elements of § 242. Bourget first argues that, although the court
correctly stated that the pain inflicted by Bourget must have been
inflicted "maliciously and sadistically" to find an Eighth
Amendment violation, the jury instructions failed to define those
terms. Second, he takes issue with the instruction's
characterization of the requisite state of mind, critiquing the
jury instructions because they did not explicitly state that
"inadvertence" or "deliberate indifference" were insufficient and
instead focused on "all of the circumstances." Relatedly, Bourget
argues that the instructions could have erroneously given the jury
the impression that the willfulness element was met as long as he
intentionally used the shield to strike KT.
But, fatal to Bourget's argument on appeal, the jury
instructions given by the district court on these two elements

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were materially identical to the instructions requested by
Bourget. "When a party affirmatively requests a particular jury
instruction, that party waives its right to challenge that
instruction on appeal." United States v. Ruiz, 999 F.3d 742, 749
(1st Cir. 2021). Bourget has not pointed us to any unusual
circumstances that would cause us to stray from our usual rule,
and we see no reason to do so. See id. Thus, Bourget has
affirmatively waived any argument that the jury instructions on
these elements were improper. Accordingly, Bourget's
jury-instruction argument fails.
C. Exclusion of the Sion video
Bourget next argues that exclusion of the Sion video
violated his right to present a complete defense.8 He contends
that the exclusion impaired his ability to (1) "demonstrate that
the manner of his entry into KT's cell was consistent with his
understanding of the appropriate level of force to be used by the
number 1 officer in a forced cell move" and (2) "counter the
government's extensive expert testimony that Bourget's actions
8 Bourget, at times, attempts to "frame [his] evidentiary
grievances as a constitutional issue" but does not distinguish his
argument from the run-of-the-mill evidentiary issues parties often
raise. See United States v. Pena, 24 F.4th 46, 70 (1st Cir. 2022).
Thus, we follow our usual framework and examine whether the
district court abused its discretion in its evidentiary
determinations.

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were inconsistent with the training and implementation of BOP
policy on the use of force."9
Criminal defendants are guaranteed "a meaningful
opportunity to present a complete defense." DeCologero, 530 F.3d
at 72-73 (quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)).
However, that right "is subject to reasonable restrictions," such
as through the promulgation of the Federal Rules of Evidence,
including Rules 401 and 403, which are at issue here.10 Id. at 73
(quoting United States v. Scheffer, 523 U.S. 303, 308 (1998)).
We review a district court's exclusion of evidence under
Rules 401 and 403 for abuse of discretion. United States v.
Wallace, 461 F.3d 15, 28 (1st Cir. 2006); United States v.
Stewart-Carrasquillo, 997 F.3d 408, 421 (1st Cir. 2021). "Under
Rule 401, evidence is relevant if it has 'any tendency to make a
fact [of consequence] more or less probable.'" United States v.
Shafa, 175 F.4th 1, 16 (1st Cir. 2026) (alteration in original)
9 Bourget cursorily suggests that the exclusion of other
evidence showing his "lack of prior discipline for prior forced
cell moves" was also "erroneous." Given the lack of developed
argumentation, any such argument is waived. See United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
10 Although the government focuses on the Sion video being
inadmissible under Rule 404 as "other acts" evidence, we need not
dive into the applicability of that rule because (1) evidence must
always be relevant under Rules 401 and 402 and (2) the analysis of
Rule 404 would require the evidence to satisfy Rule 403 as well.
See United States v. García-Sierra, 994 F.3d 17, 29 (1st Cir.
2021). And because we can resolve the issue before us under Rules
401 and 403, we need go no further.

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(quoting Fed. R. Evid. 401). "Our review as to a district court's
relevancy determination is 'quite deferential,' . . . and such
determinations provide grounds for reversal only in 'exceptional
cases.'" United States v. Armenteros-Chervoni, 133 F.4th 8, 27
(1st Cir. 2025) (first quoting United States v. Pina-Nieves, 59
F.4th 9, 21 (1st Cir. 2023); and then quoting Cummings v. Standard
Reg. Co., 265 F.3d 56, 63 (1st Cir. 2001)).
Even if evidence is relevant, "[u]nder Rule 403, a
district court may exclude evidence when its probative value is
substantially outweighed by the danger of unfair prejudice."
Stewart-Carrasquillo, 997 F.3d at 421. In our review, "[w]e give
great deference to a district judge's balancing of probative value
versus unfair prejudice." Id. (quoting United States v. Breton,
740 F.3d 1, 14 (1st Cir. 2014)). "An abuse of discretion occurs
when a relevant factor deserving of significant weight is
overlooked, or when an improper factor is accorded significant
weight, or when the court considers the appropriate mix of factors,
but commits a palpable error of judgment in calibrating the
decisional scales." United States v. Frabizio, 459 F.3d 80, 91
(1st Cir. 2006) (cleaned up) (quoting United States v. Gilbert,
229 F.3d 15, 21 (1st Cir. 2000)).
Given the deferential lens of our review, we hold that
the district court did not overlook a relevant factor, improperly

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weigh the considerations at play, or commit any error in judgment
in excluding the Sion video. We explain why we think this is so.
We begin with Rule 401. Bourget argues that the Sion
video is relevant to his intent, as it shows his understanding of
the high level of force that was to be used in a forced cell move,
especially by the first officer to enter. Bourget further argues
that even if the Sion video was not used to train officers on how
to enter a cell or complete a forced cell move, just showing the
video in training for any purpose without criticizing the use of
force therein "gave tacit approval" to the high level of force
officers used when striking Sion.11
We first dispatch Bourget's argument that the Sion video
portrays how he was officially trained on completing a forced cell
move at FMC Devens and is thus directly relevant to his
understanding of the level of force to be used. Bourget did not
provide any evidence or support for his argument that the Sion
video was shown for the purpose of training on how to complete a
forced cell move. Rather, Bourget leaned heavily on Bollinger's
11 Bourget also argues that he needed the Sion video to
counter the government's expert witnesses, including Bollinger,
who testified regarding BOP policies. But this argument is a
repackaging of his other arguments -- that the Sion video was
further evidence of the training he received. He is simply
reframing the same idea that he would have used the Sion video as
evidence of his training, which he believes would have supported
some of the evidence regarding his training and contradicted other
evidence.

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testimony in the first trial to make that argument, insisting that
Bollinger had testified that the video was shown in training "as
essentially the way to do a proper forced cell move." So when the
district court was asked to determine admissibility, it did not
need to "resolve[] for itself" any "competing inference[s]"
regarding the import of the video or assess the "credibility" of
Bollinger's explanation about how and why the video was used in
training, as the dissent here suggests. Instead, after Bourget
argued that Bollinger had testified that the Sion video was used
to illustrate a proper cell move, it was a simple matter of
checking the transcript -- which revealed that Bollinger in fact
said the opposite. In short, relevancy came down to a question of
what Bollinger said, not whether his statements were credible.
As the district court observed, Bollinger's testimony at
the first trial emphasized that the Sion video was shown in
training only to teach how to transition from one type of use of
force to another, and there was no evidence that it was used to
teach how to perform a forced cell move. Accordingly, we find
that the Sion video is not relevant to show how Bourget was
actually trained on entering a cell during a forced cell move.
That leaves us with Bourget's argument that showing the
Sion video at training "gave tacit approval" of the level of force
used to enter Sion's cell and so was relevant for that purpose.
In other words, Bourget argues that even if the Sion video was not

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used to train him on how to complete a forced cell move, by showing
the video at training, he was led to believe that the entry into
the cell in the Sion video was proper. However, even if playing
the video tacitly approved the entry into the cell under the
circumstances present in the Sion video, those circumstances were
so different from the circumstances with KT that the relevance of
the Sion video to Bourget's state of mind here is, at most, minimal
verging on non-existent. Let us explain.
The videos of the two incidents involving KT and Sion
illustrate the stark contrast in the circumstances of the two men.
Most noticeably, KT's hands were handcuffed behind his back, while
Sion was not handcuffed at all, and Bourget led the team into KT's
cell holding a large shield before him (which he used to strike KT
and force him to the ground), but no shields were used when
entering Sion's cell. Additionally, where KT stands directly in
front of the holding cell with his hands tied securely behind his
back, Sion is pictured lying in his bed, unrestrained, and when
pepper spray and pepper bombs are used against Sion, he is able to
freely move around his cell and use his hands to wash the spray
from his face in a sink. KT cannot use his hands at all, either
offensively or, as Sion does, to help mitigate the effects of
pepper spray. KT is also standing still in full view of the
officers when they enter the cell; Sion, on the other hand, is

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walking around and seems to move at least partially out of the
officers' view.
But other differences are evident as well. Prior to
entry, in KT's case, only pepper spray had been used, twice. In
Sion's case, many different escalating types of force had been
used before the final physical entry into the cell, and Sion still
did not comply. Also, as the district court noted, the two inmates
were different men, had different prison behavioral histories, and
were in different physical conditions.
For these reasons, even if showing the Sion video at
training gave "tacit approval" of all the officers' actions in
that video, those actions were hardly relevant to the entry into
KT's cell, which involved such different circumstances. But we
need not reach the ultimate issue of relevance here because we
find that, even if the video was minimally relevant to Bourget's
willfulness, its minimal probative value was far outweighed by the
risk of the dangers discussed in Rule 403, as the district court
properly found.
We begin our analysis of the probative value of the Sion
video by again recognizing that our review of the district court's
decision here is highly deferential. Stewart-Carrasquillo, 997
F.3d at 421. And, as noted above, the district court held that
any probative value of the Sion video was substantially outweighed
by the risk of confusion and unfair prejudice. Our deference to

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the district court is particularly strong here where the district
court was uniquely familiar with the evidence, as it had both
viewed the Sion video and seen how the video was utilized in the
first trial, and where Bourget made clear he intended to use the
Sion video in the same way he had in the first trial. See United
States v. Nelson-Rodriguez, 319 F.3d 12, 34 (1st Cir. 2003) (noting
that trial courts are given wide discretion in their Rule 403
rulings); DeCologero, 530 F.3d at 52 (noting prior proceedings had
made trial judge "particularly aware of and sensitive to the
complexity of" the case and the issues before it). Where the trial
court is left to make this kind of judgment call, we will give
"considerable leeway" to that judgment. See United States v.
Simonelli, 237 F.3d 19, 23-24, 26-27 (1st Cir. 2001) (quoting
United States v. Mazza, 792 F.2d 1210, 1215 (1st Cir. 1986)). This
makes sense, "since the trial judge 'is more directly familiar
than a court of appeals with the need for the evidence and its
likely effect.'" Nelson-Rodriguez, 319 F.3d at 34 (quoting United
States v. Lau, 828 F.2d 871, 874 (1st Cir. 1987)).
Turning to Rule 403's focus on probative value, we find
that the probative value of the Sion video was minimal for many of
the same reasons the video is largely irrelevant. See United
States v. Villa-Guillen, 102 F.4th 508, 517 (1st Cir. 2024)
(discussing relevance and probative value together). Although
Bourget claims the Sion video demonstrates the high level of force

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used by a lead officer in a forced cell move and that it is relevant
to his intent and understanding of the level of force used to enter
a cell, the Sion video provided, at most, "only indirect support"
for Bourget's defense related to his state of mind. See United
States v. Abdelaziz, 68 F.4th 1, 73 (1st Cir. 2023) (finding that
excluded evidence would have "provide[d] only indirect support"
for defendant's claim related to his thought process). As we made
clear in our discussion of the relevance of the video, showing the
Sion video, at most, gave only "tacit approval" of the manner of
entry into the cell there. But the circumstances in the Sion video
were so different from the incident with KT that any "tacit
approval" would carry minimal probative value.
The differences between the circumstances in the Sion
video and the incident involving KT contribute heavily to our Rule
403 analysis. Surely, the greater the differences, the lower the
probative value. What if the proposed video had even more
differences? If the inmate had a weapon or the video took place
in a different prison? It is difficult for us to see how, if we
injected further variables, those different variables would not
bear on the admissibility of the proposed video. The weight of
the evidence is vital in making a determination under Rule 403.
See United States v. Tkhilaishvili, 926 F.3d 1, 15 (1st Cir. 2019)
(framing the balancing test under Rule 403 as "gaug[ing] probative

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weight against prejudicial effect" (quoting Veranda Beach Club
Ltd. P'ship v. W. Sur. Co., 936 F.2d 1364, 1373 (1st Cir. 1991))).
Additionally, although Bourget argued to the district
court that the video was meant to show the type of training he
received, the district court correctly found that the video's
admission was not necessary for Bourget to make that argument.
And the record reveals that a number of officers testified about
their training in a way that supported Bourget's argument: several
officers stated that they were trained to always enter cells at
"100 percent" or "full speed"; and another officer testified that
while entering the cell with a shield for a forced cell move,
"[y]ou go in as fast as you can." See United States v.
García-Sierra, 994 F.3d 17, 33 (1st Cir. 2021) (finding independent
evidence of the same nature "undermined the marginal value" of the
evidence at issue). And to the extent that Bourget sought to
introduce evidence in the second trial that he was not specifically
trained about how to use a shield, one training video in isolation
that does not itself involve the use of a shield does not
significantly further this argument, particularly when the
testimony at trial regarding the minimal training provided on using
a shield was generally consistent.
The dissent suggests that the Sion video played a major
role in the first trial and that its exclusion in the second,
"gutted the heart of Bourget's defense." But in the first trial,

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defense counsel centered its closing argument on the testimony of
the defendants and other correctional officers, only briefly
referring to the Sion video and noting that a shield was not used
in that video.12 Given the lengthy testimonial evidence and the
limited use of the Sion video at the first trial, exclusion of the
video did not significantly curtail Bourget's defense as the
dissent posits. The Sion video was merely repetitious of the
significant testimonial evidence regarding how Bourget was
trained, further minimizing the video's probative value.13
And when we examine that minimal probative value against
the dangers outlined in Rule 403, it is clear the danger present
here substantially outweighs this minimal probative value. As the
government argues, admitting the Sion video presented a high risk
12 The dissent correctly notes that defense counsel told the
jury, "[y]ou have [the Sion] video and you'll be able to see it."
However, when read in context, defense counsel made this point to
counter an exhibit, an internal BOP memorandum, that suggested
Bourget had used a shield during the Sion entry. But, as defense
counsel argued during closing, while a shield was used in the Sion
forced cell move to cover the hinged slot in the cell door (also
referred to as a "trap"), it "wasn't used in the forced cell move.
You have that video and you'll be able to see it and we showed it
here in court that [Bourget] did not go in with a shield on that
forced cell move. It was only used to cover the trap."
13 The dissent likens the Sion video to the photographs and
videos of child sexual abuse discussed in a child pornography case,
United States v. Ross, 171 F.4th 522, 531 (1st Cir. 2026). We
think the evidence here is distinguishable for a number of reasons,
but, most importantly, the visual depictions there were evidence
of the crime itself, not depictions of an entirely different
incident. Evidence of the crime obviously carries a significantly
higher probative value, even when there is other corroborating
evidence.

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of jury confusion. Admission could have implied that the Sion
video was particularly important to forced cell moves or that it
depicted a typical level of force utilized in a forced cell move
when, in fact, nothing in the record establishes that either of
those things are true.
Thus, it was reasonable for the district court to
conclude that the danger the Sion video presented substantially
outweighed the marginal probative value of the video. "We see
nothing 'extraordinarily compelling' with this case which would
require us to second-guess the district court's conclusions and
re-balance [its] consideration[s]." See United States v. Soto,
799 F.3d 68, 92 (1st Cir. 2015). Accordingly, the district court
did not abuse its discretion when deciding to exclude the Sion
video.14
14 Because we find no error, we need not discuss
harmlessness. However, we note that although the dissent suggests
that the change in outcome between the trials shows that exclusion
of the Sion video likely affected the verdict, we do not see how
that can be so on this record. The fact, alone, that the Sion
video was shown in the first trial, which ended in a hung jury,
but not shown in the second trial, which ended in a conviction, is
not sufficient to convince us. The first trial had additional
counts and significantly more evidence for the jury to consider
than the second trial, including the testimony of the defendants
themselves. Thus, a number of factors could have contributed to
the change in outcome. And we cannot conclude that the showing or
not showing of the video was the determinative factor.

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D. Challenged Testimony of Captain Quinn
Next, Bourget argues that he was prejudiced by the
admission of hearsay and improper lay opinion evidence.
Specifically, he points to Captain Quinn's testimony about the
officers' reactions to watching the video of the incident. Quinn
testified that when the officers watched the video of the incident
with KT, another officer stated that "it was bad." Quinn
elaborated that he believed the officer meant that the use of force
against KT "probably was not a policy move." Quinn also testified
that his immediate reaction was that the video "was bad."
The government, in turn, argues that Bourget has failed
to explain why this evidence is not hearsay testimony admissible
as a present sense impression under Rule 803 of the Federal Rules
of Evidence, as the district court found. The government also
claims that Bourget has waived any argument that these statements
were improper lay opinions, as he never raised that argument before
the district court and does not argue plain error before this
court.
Before the district court and prior to trial, Bourget
argued that testimony that officers said the video "looked bad"
should not be allowed. He argued that "[s]uch evidence is clearly
prejudicial." In response, the government argued that this
testimony was admissible as present sense impressions under Rule

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803. Bourget later argued that the statements did not meet the
requirements under Rule 803.
On appeal, as the government correctly notes, Bourget
did not argue against the applicability of Rule 803 in his opening
brief. In his reply brief, he argues for the first time that these
statements do not meet the requirements to be admitted into
evidence as present sense impressions under Rule 803. However,
Bourget's failure to address an exception relied upon by the
district court in his opening brief waives any such argument.
United States v. Henry, 848 F.3d 1, 7 (1st Cir. 2017). And Bourget
does not raise any argument as to why we should not follow this
well-established appellate rule.
As to Bourget's argument that Quinn's testimony was
improper lay opinion testimony, Bourget never raised that argument
before the district court. Thus, at best, we can only review this
argument for plain error. United States v. De La Cruz, 91 F.4th
550, 551 n.1 (1st Cir. 2024). However, Bourget also never
addresses plain error in his briefing; accordingly, any such
argument is waived. See id. (finding that failure to address the
plain-error test results in the claims being deemed "waived for
lack of developed argumentation").
For these reasons, Bourget's arguments regarding Quinn's
testimony are waived.

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E. Cumulative Error
Lastly, Bourget argues that the alleged errors discussed
above, in combination with a number of errors he did not raise
before the district court and does not meaningfully develop on
appeal, together amount to cumulative error that prejudiced him
and, therefore, warrant a new trial.
"Cumulative error may require reversal 'because
individual errors, insufficient in themselves to necessitate a new
trial, may in the aggregate have a more debilitating effect and
thus add up to prejudice.'" United States v. O'Donovan, 126 F.4th
17, 46 (1st Cir. 2025) (quoting United States v. Baptiste, 8 F.4th
30, 39 (1st Cir. 2021)). However, "the operation of that principle
depends on the existence of two or more errors." United States v.
Stokes, 124 F.3d 39, 43 (1st Cir. 1997).
We have already discussed above why Bourget's asserted
errors were not errors at all, with the exception of the waived
arguments on jury instructions and Captain Quinn's testimony, on
which we did not provide our view on whether admitting that
evidence was error. Yet Bourget does not argue why these waived
errors together (if they are errors), or in combination with other
errors, would rise to the level of cumulative error. Instead,
Bourget focuses on throwing a number of new issues at the wall to
see what sticks. Yet he does nothing to develop any of these
issues. He does not discuss how they were raised below, if they

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were raised below, what the standard of review is, or any other
relevant arguments. So, again, we find his claims are waived for
failure to make "some effort at developed argumentation." United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
III. Conclusion
For the foregoing reasons, we affirm Bourget's
conviction.
-Concurring and Dissenting Opinions Follow-

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- 44 -
KAYATTA, Circuit Judge, concurring. I join Judge
Montecalvo's opinion in full. I write separately only to explain
why I view the exclusion of the Sion video as a simple and
straightforward application of judgment by an experienced and able
trial judge who had a front row seat -- twice -- to what was
actually being contested in this case.
The government's theory did not rely at all on the speed
of entry into KT's cell. Indeed, in closing, the prosecutor said,
"[Y]es, you go in fast. . . . Of course you should go in quickly."
Instead, the focus of the trial -- quite understandably -- was on
Bourget's use of a "shield as a weapon to make an upper cut into
[KT]'s face and chin." But no shield was used in any way in the
Sion video. So the video either would have harmed the defense -- by
showing that a forced cell move could be accomplished without a
shield, much less without using a shield as an offensive
weapon -- or it would have served as a red herring that might have
led to confusion as jurors scratched their heads trying to ponder
its relevance. Either way, it was well within the trial judge's
discretion under Federal Rule of Evidence 403 to exclude the Sion
video.

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LYNCH, Circuit Judge, dissenting. With the greatest
respect, I conclude that defendant Bourget did not receive a fair
trial in this second prosecution for the same criminal charge under
18 U.S.C. § 242. The prosecution had the burden of proving beyond
a reasonable doubt that Bourget "willfully subject[ed]" KT "to the
deprivation of any rights, privileges, or immunities secured or
protected by" the Eighth Amendment. See 18 U.S.C. § 242. In the
first trial, before a jury, the government did not secure
convictions on either of the two charges against Bourget, and the
jury acquitted him on the first charge. The second trial was the
government's next effort to secure a conviction on the second
charge, as to which the first jury had hung.
The district court in this retrial, after a mistrial,
erred in excluding the highly relevant Sion video, which had been
presented to the jury in the first trial, where the jury was unable
to reach a verdict on the charge that Bourget violated § 242 by
striking KT with the shield during a forced cell move. That
exclusion gutted the heart of Bourget's defense that he lacked any
intent to violate KT's right to be free from cruel and unusual
punishment, his defense that he had been trained to enter cells at
full speed during forced cell moves but had never been trained how

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- 46 -
to use a shield in doing so,15 his defense that his superiors were
responsible for inadequate training and had every reason to
scapegoat him, and his defense that KT's injuries occurred in
consequence of those failures by his superiors. The difference in
outcomes between these two sequential criminal prosecutions
underscores the high likelihood that the erroneous exclusion of
the Sion video affected the verdict. In excluding the video, the
trial judge violated binding precedent and impermissibly weighed
the credibility of witnesses. It was the jury's role to decide
these questions.
The district court excluded the evidence on two grounds:
that the video was not relevant, and that its admission would
unfairly prejudice the prosecution and confuse the jury. The video
was obviously relevant. This conviction cannot stand in light of
the district court's erroneous reasoning that admission of the
Sion video would unfairly prejudice the prosecution and confuse
the jury, grounds that the government did not even argue at the
second trial. At the first trial, the Sion video, showing Bourget
leading a team of five officers into Sion's cell during a forced
cell move, was admitted without objection from the prosecution.
As the video played for the jury, the prosecution objected only to
15 The term "forced cell move" refers to the BOP procedure
in which, after the cell door is unlocked and opened, a team of
officers enters the cell to restrain and move the inmate.

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- 47 -
an earlier portion, on the limited ground that "the prior part
. . . doesn't involve [Bourget]." The prosecution made no claim
at the first trial of irrelevance, unfairness to the government,
or confusion to the jury, and for good reason. The prosecution's
about-face at the second trial greatly increased the likelihood of
Bourget's conviction because the jurors were deprived of seeing
the video evidence at the heart of his defenses.
The Supreme Court has recently cautioned that courts
must be careful to avoid "negative systemic consequences for prison
officials" and interference with "the 'inordinately difficult
undertaking' of running a prison." Goldey v. Fields, 606 U.S.
942, 944 (2025) (quoting Turner v. Safley, 482 U.S. 78, 84-85
(1987)). The Court has also recognized that prison administrators
are entitled to "wide-ranging deference in the adoption and
execution of policies and practices that in their judgment are
needed to preserve internal order and discipline and to maintain
institutional security." Hudson v. McMillian, 503 U.S. 1, 6 (1992)
(quoting Whitley v. Albers, 475 U.S. 312, 321-22 (1986)). Here,
the jury was deprived of key evidence bearing on how FMC Devens
trained its officers and whether Bollinger's later use of the Sion
video during annual training conveyed tacit approval of Bourget's
conduct as lead man in that earlier forced cell move, matters
directly implicating the Supreme Court's concerns about judicial
interference with prison administration, policies, and practices.

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I. The Sion Video Was Improperly Excluded
The majority errs in concluding that the Sion video was
not relevant to show how Bourget was trained to enter a cell during
a forced cell move and in its further assertion that the video
had, at most, minimal relevance to his state of mind.
The Sion video easily cleared Rule 401's low threshold
because it bore directly on whether the government had carried its
burden to prove beyond a reasonable doubt that Bourget acted
willfully, that is, with the specific intent to deprive KT of his
Eighth Amendment rights. Evidence is relevant if it "has any
tendency to make a fact [of consequence] more or less probable
than it would be without the evidence." Fed. R. Evid. 401
(emphasis added). "'[R]elevancy is a very low threshold' that
only requires the tendered evidence to 'move the inquiry forward
to some degree.'" United States v. Rathbun, 98 F.4th 40, 51 (1st
Cir. 2024) (quoting United States v. Cruz-Ramos, 987 F.3d 27, 42
(1st Cir. 2021)); see also Neece v. City of Chicopee, 106 F.4th
83, 93 (1st Cir. 2024) (explaining that relevant evidence "need
not definitively resolve a key issue in the case" (quoting United
States v. Rathbun, 98 F.4th 40, 51 (1st Cir. 2024))).
The excluded Sion video did far more than merely "move
the inquiry forward" here. It provided substantial support for
Bourget's contention that KT's injuries were not the consequence
of any intent to violate his Eighth Amendment rights. On Bourget's

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- 49 -
theory, KT's injuries resulted from his superiors' approval of the
methods employed in the Sion video and the superiors' failure to
train Bourget and other officers on how to handle forced cell moves
in different circumstances, including with a shield. The testimony
of other officers on the entry team that they, too, were trained
to enter at "100 percent" or "full speed" further supported the
relevance of the Sion video. The number two officer testified
that he was trained to enter at "100 percent speed" by "every
single person above [him]" when conducting a forced cell move.
The number four officer testified that he was trained to "always
enter at 100 percent" speed. And the number six officer, who
followed the team with the video recorder and testified as a
government witness, agreed that officers are instructed to "go in
100 percent, full speed" during a forced cell move. That testimony
reinforced the Sion video's relevance to the hotly disputed issue
of Bourget's intent by showing that what it depicted -- Bourget,
as the number one officer, entering the cell forcefully and at
high speed -- was consistent with how the officers were trained to
enter a cell during a forced cell move. See United States v.
Proano, 912 F.3d 431, 439 (7th Cir. 2019) (holding that an
officer's training is relevant to willfulness under § 242 because
acting "in accordance with his training could make it less likely
that he acted willfully"); United States v. Rodella, 804 F.3d 1317,
1338 (10th Cir. 2015) (upholding admission of officer's pursuit

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- 50 -
training as relevant to show that he knew his pursuit was unlawful
and acted willfully under § 242).16
The majority's emphasis on the fact that defense counsel
referred expressly to the Sion video only briefly in his closing
argument at the first trial misses the point. The first jury had
already seen the Sion video, and counsel expressly reminded the
jurors that "[y]ou have that video and you'll be able to see it."
Counsel accordingly focused his closing on the testimonial
evidence that gave the video its significance. He repeatedly
emphasized that there was "no policy" governing use of the shield,
that the KT move was the first time in Bourget's ten years at FMC
Devens that he had used the shield in a forced cell move, and that
the absence of training was "of vital importance" to this case.
Counsel's shorthand for these points was: "Told and not taught."
He also contended that the decision to undertake the forced cell
move "comes from above," and the decision to use the shield "comes
16 The majority's own sufficiency analysis confirms that an
officer's training is probative of willfulness under § 242. In
rejecting Bourget's sufficiency challenge, the majority relies on
"competing evidence as to how officers were trained and how much
force should have been used in this circumstance under that
training," and cites the Eleventh Circuit's decision in United
States v. Hill, 99 F.4th 1289, 1307 (11th Cir. 2024), for the
proposition that "where the officer's actions so obviously violate
his training on the use of force, a jury may infer that the
violation was willful." Logically, the converse follows: if an
officer's departure from his training may support an inference of
willfulness, evidence that Bourget understood his conduct to be
consistent with his training supports the opposite inference.

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- 51 -
from up higher." Once the forced cell move was ordered, counsel
argued, the officers "have to follow the order" and "have to go in
at full speed." Later in his closing, counsel made clear what
following that order meant: Bourget had to enter the cell at "full
speed, full force," whether the inmate was "cuffed" or "uncuffed,"
because "that's what [officers are] told and that's how they have
to do it." Counsel also expressly noted that Bourget "did not go
in with a shield" in the Sion forced cell move. Counsel ultimately
tied these points directly to the issue of intent, stating that
Bourget "went in with a shield, something he wasn't trained on,
told to go full speed, and that's what he did." The prosecution
itself described defense counsel's repeated contention during
closing argument that officers were required to enter at "a hundred
percent full speed" as "[o]ne of the most important things" and
"the difference in this case more than anything else."
Bourget presented the same defenses at the second trial,
but without the jury having seen the Sion video, much less having
it in the jury room during deliberations. In his opening statement
to the jury, defense counsel represented that the BOP "didn't offer
training, they didn't show how to use [the shield], and they
thr[ew] these officers in this situation without any how-to."
Counsel again stressed in closing that Bourget had "no training on
that shield, none. Zero," and that, once a forced cell move was
authorized, officers were required to enter "forcefully, full

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- 52 -
speed, a hundred percent." Counsel argued that "upon entry into
that cell, it's full force, full speed," and emphasized that there
were "11, 12 hundred pounds behind . . . Bourget as he went in
[KT's cell], pushing him through like a train." Counsel expressly
tied the supervisory and training failures to Bourget's state of
mind, stating that the officers were "thrown in the situation,"
"given a tool that they're not instructed or taught on and told,
Go do it," and then "blame[d] . . . if something goes wrong."
That, counsel argued, was "not willfulness" but "lack of knowing."
The prosecution likewise treated these issues as part of the
dispute over the element of willfulness. It informed the jury
that it would focus most of its closing on "the defendant's
willfulness" and argued that even if "there's no specific BOP
policy on the shield," even if Bourget "had no hands-on training
on the shield," and even if "the supervisors made all the decisions
to do the move and use the shield," "it was still a crime for
Bourget to use excessive force." In rebuttal, the prosecutor
characterized as "the primary argument in this case" the defense's
contention that officers conducting a forced cell move were
instructed to enter at "full speed and full force."
The excluded Sion video would have reinforced the
defense's theory that KT's injuries were not the product of
Bourget's willful intent to violate KT's rights, but instead
resulted from decisions by Bourget's BOP superiors to send a

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- 53 -
five-officer team into KT's cell during the forced cell move, to
authorize use of the shield with Bourget as the lead man, and to
do so without adequately training him how to use the shield in
that role. There is no doubt that Bourget made these arguments at
the second trial. But argument was no substitute for the excluded
evidence. The jury was expressly instructed that "[a]rguments and
statements by lawyers are not evidence" and that it was to decide
the case "solely on the evidence received during the trial." The
excluded Sion video would have allowed the jury to see for itself
how Bourget had previously performed the number one role in a
forced cell move and to assess whether his conduct toward KT
reflected willful intent or, as he argued, his application of a
familiar entry method with a tool on which he had received no
hands-on training. Seeing is believing.
The Sion video was not, as the majority concludes,
"merely repetitious" or cumulative of the officers' testimony
about their training.17 See United States v. Ross, 171 F.4th 522,
17 The majority overreads United States v. García-Sierra, 994
F.3d 17 (1st Cir. 2021), in treating the officers' testimony as
diminishing the Sion video's probative value. There, the
challenged evidence had only "marginal permissible relevance,"
id. at 32, and we noted that the government had introduced "ample
evidence establishing" the same fact "apart from" that evidence,
such that the "independent evidence . . . undermined [its]
marginal value," id. at 33. Here, the officers' general testimony
described the instruction to enter a cell at full speed; it simply
could not show what the Sion video did: how Bourget himself, as
the number one officer, actually carried out such an entry.

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- 54 -
531 (1st Cir. 2026) ("[P]hotos and videos convey a pictorial
accuracy and detail that words cannot duplicate and that advocates
cannot spin." (quoting United States v. Long, 92 F.4th 481, 486
(3d Cir. 2024))); cf. United States v. Shows Urquidi, 71 F.4th
357, 374 (5th Cir. 2023) (concluding that critical photographic
evidence was not cumulative because it "provided support to witness
testimony"). Nor did the video's relevance depend on whether
Bollinger used it specifically to train officers on how to conduct
a forced cell move. Quite apart from its use in training, the
video demonstrated exactly what Bourget himself had done
previously as the lead man in an earlier forced cell move:
"forcefully lowering his shoulder into the unresisting Sion at
full speed and launching him into a wall." Bollinger later used
the video in BOP's annual training and agreed that the use-of-force
team had done an "excellent job." The record also showed that
Bourget completed all four days of that year's annual refresher
training, permitting a reasonable jury to find that he saw the
Sion video during that training.18 That evidence strongly
supported Bourget's argument that he understood his conduct in the
18 The majority's reliance on United States v. Abdelaziz, 68
F.4th 1, 73 (1st Cir. 2023), is misplaced. There, in explaining
why evidence concerning USC's donation acknowledgment practices
provided only "indirect support" for Wilson's asserted state of
mind, we emphasized that Wilson did not contend that he was aware
of those practices when he filed his tax return. Id. Here, by
contrast, the evidence permitted the jury to find that Bourget had
seen the Sion video in annual training before the charged conduct.

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- 55 -
Sion move to have been approved by his supervisors and that he
acted consistently with that understanding during the KT forced
cell move, rather than with an intent to violate KT's Eighth
Amendment rights.19
The Sion video was also relevant to the jury issue of
whether the later explanations by Bourget's superiors and other
BOP officials, including the explanations relied on by the district
court to justify exclusion, were tainted by their own self-interest
in avoiding blame. Captain Bollinger and Heidy Baez-Patino, the
Assistant Correctional Services Administrator for the Central
Office of the Bureau of Prisons, were allowed to testify as to
their version of the protocols regulating use of force at FMC
Devens. The Sion video would have provided the second jury with
a visual record against which it could evaluate those witnesses'
descriptions of proper use-of-force procedures. In particular, if
the jury found that the video depicted Bourget acting consistently
with the practices that were approved by his supervisors, it could
19 The government contends that Bourget forfeited any
argument that the Sion video showed a "typical use of force" or
would "adjust the jury's expectations" because he did not make
those points before the district court. The record is to the
contrary. Bourget argued that "[t]he Sion video is used each year
in the annual training by the captain, who is one of the
government's witnesses, . . . as essentially the way to do a proper
forced cell move" and that the video showed "how the forced cell
moves at FMC Devens are conducted." Those arguments squarely
presented the substance of the points the government now claims
were forfeited.

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- 56 -
question Bollinger's attempt to characterize the video as relevant
only to the transition between levels of force. The video thus
bore directly on the credibility of the government's witnesses.
The government, and now the majority, place considerable
weight on the differences between the Sion forced cell move and
the KT forced cell move, including that no shield was used in the
Sion move, Sion was not restrained, additional measures were used
before officers entered Sion's cell, and the two forced cell moves
were undertaken under some different circumstances. But those
differences did not render the Sion video irrelevant to Bourget's
state of mind. Indeed, some of them reinforced the defense's
theory. Lieutenant Lyons testified that, during a calculated use
of force, the speed of the officers' entry into a cell does not
change depending on whether the inmate is handcuffed: the officers
enter at "[f]ull speed" regardless. And the absence of a shield
in the Sion move was central to Bourget's argument because he had
received no hands-on training on the shield's use. The Sion video
illustrates the speed that Bourget had used, and was approved to
use, in an earlier forced cell move at FMC Devens, and shows
Bourget applying force with both arms and his chest to drive the
prisoner against the wall and into a handrail before tackling him
to the floor and landing on top of him with his full body weight.
The similarities between the Sion and KT moves easily gave the
video "any tendency" to make it less probable that Bourget acted

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- 57 -
with the specific intent to violate KT's Eighth Amendment rights.
Fed. R. Evid. 401. For purposes of Rule 401, the differences
emphasized by the government and the majority went to the weight
the jury might give that inference, not whether the video was
relevant at all. See United States v. Mehanna, 735 F.3d 32, 65
(1st Cir. 2013) (rejecting a challenge to the evidence's
admissibility based on a competing inference because jurors may
"choos[e] among reasonable but competing inferences extractable
from proven facts"); United States v. Weadick, 15 F.4th 1, 18-19
(1st Cir. 2021) (holding that evidentiary weaknesses bearing on
the inference to be drawn "go to the weight of the evidence, not
to its admissibility"). Yet, without the Sion video, the jury
never had the opportunity to make that assessment for itself.
To the extent the district court viewed the Sion video's
relevance to Bourget's intent as turning on whether the video's
use in annual training signaled that his supervisors approved
Bourget's manner of entry and use of force, Rule 104(b) required
the court to ask only whether a reasonable jury could find that
conditional fact by a preponderance of the evidence.20 In United
States v. Trenkler, 61 F.3d 45, 53 (1st Cir. 1995), we held:
20 Under Federal Rule of Evidence 104(b), "[w]hen the
relevance of evidence depends on whether a fact exists, proof must
be introduced sufficient to support a finding that the fact does
exist. The court may admit the proposed evidence on the condition
that the proof be introduced later." Fed. R. Evid. 104(b).

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- 58 -
[I]n determining whether the Government has
introduced sufficient evidence to meet
Rule 104(b), the trial court neither weighs
credibility nor makes a finding that the
Government has proved the conditional fact by
a preponderance of the evidence. The court
simply examines all the evidence in the case
and decides whether the jury could reasonably
find the conditional fact . . . by a
preponderance of the evidence.
(omission in original) (quoting Huddleston v. United States, 485
U.S. 681, 690 (1988)). Importantly, as the Advisory Committee
that drafted the proposed Rules explained, "[i]f preliminary
questions of conditional relevancy were determined solely by the
judge . . . the functioning of the jury as a trier of fact would
be greatly restricted and in some cases virtually destroyed. These
are appropriate questions for juries." Fed. R. Evid. 104 advisory
committee's note to subdivision (b). The Sion video easily cleared
Rule 104(b)'s threshold. Bollinger's testimony that he showed the
Sion video principally to illustrate transitions between levels of
force did not foreclose the separate inference favorable to
Bourget's defenses that Bollinger's use of the video in annual
training without criticism or even comment on Bourget's manner of
entry, coupled with Bollinger's agreement that the use-of-force
team in the video had done an "excellent job," signaled approval
of Bourget's actions as the lead officer. See United States v.
Giang, 174 F.4th 196, 205 & n.4 (1st Cir. 2026) (holding under
Rule 104(b) that arguments about whether the evidence supported

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- 59 -
the proposed inference went "to the weight of that evidence, not
its admissibility," id. at 205, and explaining that the fact
"[t]hat the evidence was subject to multiple plausible
interpretations [was] no reason to exclude it," id. at 205 n.4).
The district court here resolved for itself the very competing
inference that Rule 104(b) reserves for the jury. It was also the
jury's, not the district court's, role to evaluate "information as
to bias" and "assess the credibility of" Bollinger and Bourget's
other supervisors. Udemba v. Nicoli, 237 F.3d 8, 17 (1st Cir.
2001); see also Trenkler, 61 F.3d at 53. The district court did
not leave the issue of the credibility of the explanations offered
by Bourget's superiors to the jury, though those witnesses had
incentives to defend the adequacy of BOP's training and practices
and to place blame on Bourget.
The reasons why the Sion video is highly relevant also
factor into the Rule 403 analysis. The Supreme Court and our
decisions have recognized that "[t]he Constitution guarantees
criminal defendants 'a meaningful opportunity to present a
complete defense.'" Nevada v. Jackson, 569 U.S. 505, 509 (2013)
(quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)); see also
United States v. Coleman, 149 F.4th 1, 34 (1st Cir. 2025) (same),
cert. denied, No. 25-6945, 2026 WL 1855071 (U.S. June 29, 2026).
That guarantee does not "trump valid rules of evidence." Coleman,
149 F.4th at 34 (quoting United States v. Pires, 642 F.3d 1, 14

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- 60 -
(1st Cir. 2011)). Yet Rule 403 permits a court to "exclude
relevant evidence" only "if its probative value is substantially
outweighed by a danger of . . . unfair prejudice, confusing the
issues, [or] misleading the jury." Fed. R. Evid. 403 (emphases
added).21 And "[w]hen proffered evidence relates to the central
issue in a case," as here, "it is a difficult matter indeed to
show that the prejudicial effect of that evidence substantially
outweighs its highly probative nature, as Rule 403 requires."
United States v. Soler-Montalvo, 44 F.4th 1, 18 (1st Cir. 2022)
(quoting Rubert-Torres v. Hosp. San Pablo, Inc., 205 F.3d 472, 479
(1st Cir. 2000)). Although our review of the district court's
Rule 403 ruling is indeed deferential, "[a]n error of law qualifies
as an abuse of discretion." Lech v. von Goeler, 92 F.4th 56, 64
(1st Cir. 2024).
In excluding the Sion video, the district court
erroneously found that
the probative value is substantially
outweighed by any dangerous -- danger of
confusion or unfair prejudice, confusion to
the jury for the reasons I've stated before,
also, to the extent that it's delving into any
suggestion of prior good acts. And I know
that Mr. Bourget was the first man on that
team.
21 Federal Rule of Evidence 403 also identifies "undue delay,
wasting time, or needlessly presenting cumulative evidence" as
grounds for exclusion. Fed. R. Evid. 403. The government did not
argue for exclusion on any of those grounds, and the district court
did not rely on any of them in its Rule 403 ruling.

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- 61 -
Neither asserted danger justified exclusion under Rule 403.
As to prejudice, the government argued to the district
court only that the Sion video was evidence of "other acts -- good
acts offered to show that he didn't commit the crime on this
particular occasion." But that was not the basis on which the
video was offered by the defense and misstated the issues. Any
harm to the prosecution's case flowed from the video's legitimate
probative force, not any unfair prejudice. See United States v.
Ross, 171 F.4th 522, 529 (1st Cir. 2026) ("In balancing the scales
of Rule 403, it is important to note that only unfair prejudice is
to be avoided, as, by design, all evidence is meant to be
prejudicial." (citation omitted)); Bergus v. Florian, 120 F.4th
14, 25-26 (1st Cir. 2024) (holding that evidence was not unfairly
prejudicial where the opposing party offered no reason it would
"serve[] only to evoke an improper emotional response" or that any
prejudice "substantially outweighed" its probative value).
Nor did the Sion video pose a substantial danger of
confusing the issues or misleading the jury. A "forced cell move"
at high speed and one hundred percent effort by a team of five
guards necessarily involves the use of force. Bourget was selected
by his superiors to lead the entry into KT's cell, with four other
officers charging in at full speed immediately behind him,
including one who stood six feet nine inches tall and weighed 315
pounds. Those decisions, as well as the decisions to conduct the

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- 62 -
forced cell move and to equip Bourget with the shield, were made
by his superiors. The Sion video showed what a full-speed entry
by Bourget as the number one officer actually entailed, including
the force with which he made initial contact with the inmate.
Bourget bore no burden to produce other training videos
or otherwise disprove willfulness. The government bore the burden
of proving that element beyond a reasonable doubt. If the
government knew of other relevant training videos that it believed
would show the Sion video to be aberrational or otherwise undermine
the inference Bourget sought to draw from it, it could have sought
to introduce those videos.
The majority relies on the district court's familiarity
with the first trial to justify greater deference to its Rule 403
ruling. But that familiarity cuts against, rather than supports,
exclusion of the Sion video.22 The first trial showed that the
asserted risk of confusion could be addressed without excluding
the video. When the government objected to a portion of the
recording that did not involve Bourget, the court directed defense
counsel to move forward in the video. On redirect, the government
elicited that Sion, unlike KT, was unrestrained and that Bollinger
had used the video to illustrate transitions among
22 It is noteworthy the district court did not rely on the
government's stated reasons for excluding but rather on reasons
not offered at all by the government.

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- 63 -
less-than-lethal options rather than to illustrate Bourget's
conduct. At the retrial, the district court could have employed
those same measures to address any residual risk of confusion and,
if necessary, given an appropriate limiting instruction. See
United States v. SpineFrontier, Inc., 160 F.4th 212, 225 (1st Cir.
2025) (explaining that "a jury instruction may adequately limit
the risk of jury confusion" and that "less-onerous mechanisms may
be available to address any prejudice"); see also Bergus, 120 F.4th
at 27-28 (noting that "the district court likely could have
mitigated the potential for unfairness by providing an appropriate
limiting instruction if requested"). The differences between the
Sion and KT incidents were matters for cross-examination and
argument and did not justify excluding the video altogether.
Although at Bourget's second trial the district court
recited the phrase "substantially outweighed," it identified no
unfair prejudice beyond the video's legitimate probative force.
Nor did the court identify any substantial danger of confusing the
issues or misleading the jury that could not have been mitigated
through cross-examination, argument, and, if appropriate, a
limiting instruction. See United States v. Soler-Montalvo, 44
F.4th 1, 19 (1st Cir. 2022) (holding that the district court
"needed to explain why the highly probative value of the evidence
was so 'substantially outweighed' by the risks of confusing or
misleading the jury that the testimony should have been excluded

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- 64 -
wholesale" (quoting Fed. R. Evid. 403)). The district court's
wholesale exclusion of the Sion video, which was central to
Bourget's defense at both of his trials, simply cannot be
reconciled with Rule 403. We have reversed for far less.
II. The Effect of the Exclusion is Far from Harmless
These errors were not harmless. On this record, we
cannot say "it is 'highly probable' that the error[s] did not
contribute to the verdict." United States v. Villa-Guillen, 102
F.4th 508, 519 (1st Cir. 2024) (quoting United States v. Kilmartin,
944 F.3d 315, 338 (1st Cir. 2019)). "To evaluate the probable
impact of erroneously excluded evidence on the verdict, we consider
'[t]he centrality of the evidence, its prejudicial effect, whether
it is cumulative, the use of the evidence by counsel, and the
closeness of the case.'" Bergus, 120 F.4th at 24 (quoting Lech,
92 F.4th at 64). Those considerations uniformly favor Bourget.
At the second trial, the jury deliberated over portions of three
days and, after "continued deliberation and thorough review of the
evidence," reported that it was "unable to come to any unanimous
decision." Only after receiving an Allen charge and deliberating
for roughly three more hours did it return a guilty verdict. The
Sion video was central to Bourget's defense, noncumulative of the
general training testimony from Bollinger and others, and uniquely
capable of allowing the jury to assess both Bourget's prior conduct
and Bollinger's explanation for using the Sion video in training.

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Circuit precedent requires we reverse the exclusion of
evidence here. This court routinely reverses where the district
court erroneously excluded evidence highly relevant to a
defendant's primary defense. For example, in Soler-Montalvo, an
appeal from a conviction for enticing a minor, the district court
had erroneously excluded defense expert testimony about "the
difference between a desire to actually engage in sexual activity
with a minor and mere fantasy and role-playing related to sexual
contact with children." 44 F.4th at 11. We held the error was
not harmless because the "key issue in the case" was whether the
defendant believed the undercover agent with whom he was
communicating was thirteen years old, the defendant's "role-play
defense turned almost exclusively on the credibility of his
testimony," and the excluded expert testimony "could have provided
substantial support to [the defendant's] credibility in claiming
that he truly believed [the purported minor's identity] was just
an assumed identity of another consenting adult." Id. at 19. In
Lech, an appeal from a verdict finding defendants not liable on
claims arising from the medical care of an incarcerated plaintiff,
we held that the district court's erroneous exclusion of
"corroborating testimony from the sole person who visited" the
plaintiff at the correctional facility was not harmless as to some
of the defendants. 92 F.4th at 70-72. We reasoned that "the case
centered on a credibility battle" and that the excluded evidence

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would have rebutted "[t]he theme that [the defendants in question]
revisited at opening, at closing, in their cross-examination of
[the plaintiff], and with virtually every fact witness . . . that
the medical providers' account, not [the plaintiff's], was
believable." Id. Under Soler-Montalvo and Lech, we cannot say
with the required confidence that the district court's exclusion
of the Sion video did not affect the verdict.
Circuit precedent also requires reversal for another
reason. Lengthy jury deliberations combined with a jury note
indicating deadlock also "weigh against a finding of harmless
error." United States v. Varoudakis, 233 F.3d 113, 126 (1st Cir.
2000); see also id. at 126-27 ("[T]he three-day length of the jury
deliberations, and the jury's note to the trial court that it was
'at an impasse' at the end of the second half-day, weigh against
a finding of harmless error" because "[l]engthy deliberations
suggest a difficult case" and the impasse note "reveal[ed]
uncertainty about [the defendant's] guilt."); cf. United States v.
de Jesus-Rios, 990 F.2d 672, 679 (1st Cir. 1993) (concluding under
constitutional harmless error review the error was not harmless
because "there [wa]s no way for us to discern the role that [the
error] played in the jury's deliberations"). The contrast with
the first trial sharpens the point.23 The trials were not
23 The Sion video most certainly did not hurt Bourget in the
first trial, at which he was acquitted on one count. There was

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identical, and the first jury's failure to reach a verdict does
not establish that exclusion of the Sion video caused the different
outcome. But the jury that saw the video was unable to reach a
verdict on the same charge, making it still harder to say with the
required confidence that excluding the video from a second trial
in which the jury itself reached an impasse had no effect on the
verdict.
I respectfully dissent.
good reason his counsel chose to offer it at the second trial.
What inferences to draw from the video were for the jury, not the
trial judge, to decide. See United States v. Abbas, 100 F.4th
267, 281 (1st Cir. 2024) (holding that "'the jury was entitled to
come to whatever rational conclusion it saw fit based on the
evidence' before it" (quoting United States v. Buoi, 84 F.4th 31,
38 (1st Cir. 2023))).

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