United States v. Daniells

at 80–81; see also

Schook v. United States,

337 F.2d 563, 567-68

(8th Cir. 1964)

(expressly agreeing with Quinones's holding and explaining that

"[t]here is no essential difference in the function or consequence

of an 'indictment' and an 'information'" because "both are notices

to the accused of charges in the name of the sovereign for [an]

alleged violation of its penal statutes").

- 12 - Daniells is right that the type of formal charging

document that is involved in his case differs from the type that

was at issue in Quinones, because the latter type was signed by

the prosecuting attorney and his type was not. But a Massachusetts

criminal complaint constitutes a formal charging document even

when signed only by a police officer. And, we conclude that

Quinones's reasoning warrants the conclusion that such a criminal

complaint is the kind of formal charging mechanism that brings the

person subject to it within the "class of potentially dangerous

persons" that Congress intended to be considered "under

indictment." See

161 F.2d at 81

Daniells argues otherwise in part because, following

Quinones, Congress added a statutory definition of "indictment."

See Omnibus Crime Control and Safe Streets Act, 82 Stat. at 227

(1968). That definition now appears as

18 U.S.C. § 921

(a)(14) and

states: "The term 'indictment' includes an indictment or

information in any court under which a crime punishable by

imprisonment for a term exceeding one year may be prosecuted."

Daniells contends that, however one might have construed

the "under indictment" element based on Quinones alone, the

subsequent enactment of this statutory definition of "indictment"

requires the conclusion that only "indictment[s]" and

"information[s]" fall within the scope of the "under indictment"

- 13 - element. He thus argues that the Massachusetts criminal complaints

issued against him did not render him "under indictment."

But, in so contending, Daniells does not dispute that a

formal charging document that is called a "criminal complaint" can

fall within the scope of the "under indictment" element even though

it is not called an "indictment" or "information." And, indeed,

courts have consistently construed the "under indictment" element

in the wake of the enactment of the statutory definition to

encompass "criminal complaints" even though the statutory

definition makes no reference to them. See Brede, 477 F.3d at

643–44; Sears v. United States, No. 10-1215,

2011 WL 1642008

, at

*6 (W.D. Pa. May 2, 2011).

Thus, Daniells appears to be contending that although a

criminal complaint can fall within the scope of the "under

indictment" element, it can do so only when it is signed by the

prosecuting attorney. And that is so, he appears to be contending,

because only in that event is a "criminal complaint" in substance

the same as an "information."

The use of the word "includes" in the statutory

definition of "indictment" indicates, however, that the definition

of "indictment" encompasses more than "indictment[s]" and

"information[s]," see

18 U.S.C. § 921

(a)(14); see also, e.g.,

Christopher v. SmithKline Beecham Corp.,

567 U.S. 142, 162

(2012)

(noting that the use of the word "includes" is "significant because

- 14 - it makes clear that the examples enumerated in the text are

intended to be illustrative, not exhaustive"). We thus do not see

why the definition must be read to exclude functionally equivalent

charging mechanisms that may diverge in particulars from the ones

listed in § 921(a)(14).

Nor does the statutory definition of "indictment"

mention any requirement that the prosecuting attorney sign the

charging document in providing that an "information" constitutes

an "indictment." Thus, we do not see why a formal charging

mechanism must have been so signed to be, in substance, the kind

of formal charging mechanism that -- like an "information" or

"indictment" -- can render a person "under indictment."5

Daniells does attempt to bolster his position by

pointing out that the case law that the government relies on in

5 Daniells points out that an ATF regulation defines "indictment" in the same way that

18 U.S.C. § 921

(a)(14) does but then goes on (unlike the statute) to specify that an "information" is a "formal charge" that is signed by a "prosecuting attorney." See

27 C.F.R. § 478.11

("Indictment[] [i]ncludes an indictment or information in any court . . . . An information is a formal accusation of a crime, differing from an indictment in that it is made by a prosecuting attorney and not a grand jury."). He contends that this definition shows that the Massachusetts criminal complaints at issue cannot bring someone "under indictment" because they cannot be construed as "information[s]" given that they were not approved by a prosecuting attorney. But, even if the ATF regulation were relevant to our interpretation of the scope of the "under indictment" element in § 922(n), the argument would fail because its premise is the same one that we have already rejected -- that the type of "formal charge" that the "under indictment" element "includes" is limited only to "indictment[s]" or "information[s]."

- 15 - asserting that the "under indictment" element encompasses even

criminal complaints that are not signed by the prosecuting attorney

involves criminal complaints that the prosecuting attorney had

signed. See Brede, 477 F.3d at 643–44 (holding that a Minnesota

criminal complaint, which must be signed by a prosecutor, see Minn.

R. Crim. P. 2.02, was "functionally equivalent" to an information

or indictment for § 922(n) purposes). But, Brede does not hold

that a criminal "complaint" falls within the "under indictment"

element only when signed by the prosecuting attorney. See

477 F.3d at 644

(explaining that the defendant "became subject to the

prohibitions of § 922(n) when the state of Minnesota filed the

felony complaints against" him); accord Sears,

2011 WL 1642008

, at

*6 (inquiring whether the complaint was the "appropriate mode of

instituting the proceedings in state court" to determine whether

the defendant was "under indictment" for purposes of § 922(n)).

We also are unpersuaded by Daniells's contention that

Quinones itself held that the Puerto Rico information at issue

there fell within the scope of the "under indictment" element only

because it was signed by the "prosecuting attorney." Quinones,

161 F.2d at 81

. Quinones did reference the Puerto Rico law

requirement that the "prosecuting attorney" sign the criminal

information. But Quinones did so only while explaining that a

criminal information was a means of lodging a formal criminal

charge. See

id. at 80-81

. We thus do not see how the reference

- 16 - in and of itself excludes criminal complaints that are not signed

by the prosecuting attorney.

Daniells separately contends that Quinones is

distinguishable from his case because Massachusetts, unlike Puerto

Rico at the time of Quinones, permits formal criminal charges to

be lodged not only by criminal complaints but also by grand juries

handing up indictments. But Quinones does not suggest that the

"general class of potentially dangerous persons" that Congress

intended to encompass includes only those persons who have been

issued a criminal information in a jurisdiction that uses no other

type of formal criminal charge to initiate a criminal prosecution.

See

161 F.2d at 80-81

Moreover, neither the statutory definition of

"indictment" nor § 922(n) makes any reference to a requirement

that a formal charging mechanism that is not itself an indictment

may render a person "under indictment" only in a jurisdiction that

uses no other mechanism to initiate a formal criminal charge. And

out-of-circuit precedent is uniform in holding that the "under

indictment" element encompasses criminal complaints that are

issued from states that also employ other means of lodging formal

criminal charges. See Brede, 477 F.3d at 643–44; Sears,

2011 WL 1642008

, at *6.

In sum, we have long understood the text of the "under

indictment" element of the offense that now appears in § 922(n) to

- 17 - reflect Congress's intention to account for the wide variety of

ways that different jurisdictions in the United States permit

formal criminal charges to be initiated. See Quinones,

161 F.2d at 80-81

; see also, e.g., Schook,

337 F.2d at 567

. In addition,

no subsequent statutory enactment suggests that we were mistaken

in so understanding Congress's aim. Finally, under Massachusetts

law, a criminal complaint may issue from the court in which the

police officer filed it only upon a determination of probable cause

to bring the charge by a "judicial officer" of that court. See

Mass. R. Crim. P. 3(g)(2). Such a criminal complaint, therefore,

is a type of formal charging mechanism that emanates from a legal

process that is, functionally, as reflective of the seriousness of

the initiation of a formal criminal charge as the process from

which the criminal information at issue in Quinones emanated.

Accordingly, we conclude that a defendant who has been issued such

a criminal complaint is among the "class of potentially dangerous

persons" to whom Congress intended § 922(n) to apply.

We move on, then, to Daniells's more record-based

contention as to why his § 922(n) conviction must be reversed on

sufficiency grounds. Here, he focuses on the "willfully" element

in § 922(n). We review such a preserved sufficiency challenge de

novo. See United States v. Oliver,

19 F.4th 512, 516

(1st Cir.

2021). In undertaking such review, we look to see whether a

- 18 - rational juror could find that all the evidence proved the element

in question beyond a reasonable doubt. See United States v.

Fuentes-Lopez,

994 F.3d 66, 71

(1st Cir. 2021). We draw "all

reasonable inferences from the evidence in favor of the verdict,"

Oliver,

19 F.4th at 519

(citing Fuentes-Lopez,

994 F.3d at 71

while rejecting "evidentiary interpretations and illations that

are unreasonable, insupportable, or overly speculative," United

States v. Rodríguez-Martinez,

778 F.3d 367, 371

(1st Cir. 2015)

(quotation omitted); see also United States v. Guzman-Ortiz,

975 F.3d 43, 55

(1st Cir. 2020) ("[A] judge may not pursue a 'divide

and conquer' strategy in considering whether the circumstantial

evidence [in the record] adds up . . . . But, neither may a judge

stack inference upon inference in order to uphold the jury's

verdict." (quotations omitted));

("The strength of [such]

inference[s] cannot be decided in a vacuum." (quoting Tellabs,

Inc. v. Makor Issues & Rights, Ltd.,

551 U.S. 308, 323

(2007))).

Daniells contends that the "willfully" element in

§ 922(n) required the government to prove that he knew that his

Massachusetts criminal complaints rendered him "under indictment"

at the time that he received the firearm at issue. But, he

contends, the evidence in the record does not suffice to permit a

rational juror to find that he had such knowledge at that time.

The government responds that the "willfully" element

required it to prove only that Daniells knew that his receipt of

- 19 - the firearm was "unlawful" and not that he knew that his receipt

of it was "unlawful" because he was "under indictment" at the time.

But, despite advancing this response to Daniels's challenge, the

government ultimately does not appear to rely on it.

We say that because the government appears to accept

that, in Daniells's specific case, the only evidence in the record

that could suffice to show that he knew that it was unlawful for

him to receive the firearm was the evidence in the record that

would suffice to show that he knew that his receipt of the firearm

was unlawful because he had received the Massachusetts criminal

complaints. Moreover, the government appears to accept that, in

consequence of that feature of the record in Daniells's case, there

is no evidence in the record that could suffice to support a

finding that Daniells knew that it was unlawful for him to receive

the firearm apart from the evidence in the record that could

suffice to support a finding that he knew that the Massachusetts

criminal complaints rendered him "under indictment" for purposes

of § 922(n). Thus, in the end, the government does not appear to

offer an argument that the evidence suffices to show that Daniells

acted willfully that is independent of the argument that the

evidence suffices to show that he knew that he was "under

indictment" at the time that he received the firearm.

This understanding of the government's position,

however, does not help Daniells. For, as we will next explain, we

- 20 - conclude that the evidence does suffice to show that Daniells knew

that he was "under indictment" at the relevant time.

The evidence supportably shows that Daniells had

purchased firearms without using a straw purchaser in both 2012

and 2013, which was before he had received the Massachusetts

criminal complaints. The evidence then further supportably shows

that starting in 2015 -- and thus soon after Daniells had received

the Massachusetts criminal complaints in 2014 -- he used a straw

purchaser to purchase multiple firearms.

From the conspicuous timing of this shift in the means

that Daniells used to acquire a firearm, a rational juror could

infer that Daniells resorted to the use of a straw purchaser when

he did because he believed that, in consequence of his

Massachusetts criminal complaints, he needed to avoid detection of

his firearms purchases even though he previously did not.

Moreover, from the other evidence in the record, a rational juror

reasonably could infer that the reason for that shift was that

Daniells knew that it was unlawful for him to receive a firearm

because those criminal complaints rendered him "under indictment"

and so subject to the criminal prohibition that § 922(n) sets

forth.

Supporting that latter conclusion is the evidence of

statements that Daniells himself made after the criminal

complaints had been issued against him and he had received a

- 21 - firearm. Daniells reportedly said in one of those statements that

he was concerned about the possibility that "the ATF will come and

catch us or something on the highway." His reference as of that

time specifically to the ATF indicates an awareness on his part

that the conduct that he had engaged in by that time was conduct

that violated a federal firearms prohibition, rather than a state

one. Moreover, the record also contains evidence of another

statement by Daniells in which, upon learning that ATF

investigators had been in touch with Roberts, he reportedly

encouraged Roberts to tell the investigators that he did not "give"

Daniells the guns in question and to tell the ATF agents, instead,

that he did not have the guns because they had been stolen. By

focusing on the need to make sure that ATF agents did not know

Daniells had received a firearm, the statement indicates an

awareness on Daniells's part that the very conduct in which he had

engaged and that he was concerned about the ATF discovering was

the conduct that § 922(n) prohibits when a person is "under

indictment."

In addition to the fact that the record supportably shows

that Daniells made these statements after he had -- in the wake of

receiving the Massachusetts criminal complaints -- resorted to the

use of a straw purchaser, the record also contains evidence that

Daniells knew about § 922(n) by the time that he received the

firearm in question. The record shows in that regard that, by

- 22 - that time, he was familiar with § 922(n) by virtue of the

questionnaires on the ATF forms that he had completed in 2012 and

2013. In addition, testimony at trial supportably shows that

Daniells took steps -- such as removing serial numbers from guns

-- that were consistent with him being a sophisticated black-market

firearms dealer and thus someone familiar with federal firearms

laws. Cf. United States v. Andrade,

135 F.3d 104, 110

(1st Cir.

1998) (pointing to "the scale of [the defendant]'s gun smuggling

activity" as one "indication[] of his awareness" that his conduct

was unlawful); United States v. Rodriguez,

132 F.3d 208, 213

(5th

Cir. 1997) (explaining that a juror could infer from evidence of

a defendant's experience working with firearms that the defendant

was familiar with the firearms laws).

Daniells does assert that the evidence shows that the

ATF forms that he had to fill out when making the purchases of

firearms on his own suggested to him that his Massachusetts

criminal "complaints" did not render him "under indictment." He

notes that the forms mentioned only "indictments" and

"informations" and not "criminal complaints."

Daniells also notes that nothing else in the record could

be understood to show that he had been advised that the criminal

complaints rendered him "under indictment" or that he otherwise

fell within § 922(n)'s prohibition. He points out as well that we

had not directly held at the time of the events in question that

- 23 - Massachusetts criminal complaints, even if not signed by the

prosecuting attorney, are the kinds of formal charging documents

that the "under indictment" element encompasses.6

Daniells then goes on to contend that his resort to the

use of a straw purchaser and the statements described above are

open to interpretation. Rather than revealing that he knew that

he was prohibited by § 922(n) from receiving a firearm, the conduct

and statements on his view reasonably may be understood to show

only that he was motivated to resort to a straw purchaser to avoid

detection of his contemporaneous conduct in "dealing" guns. Or,

he suggests, that conduct and those statements reasonably could

support the inference that he used the straw purchaser only out of

his concern about being caught with firearms in Massachusetts

because he did not have a license to possess or carry in that

state.

Daniells does not account, however, for what the

evidence shows about the timing of his resort to the use of a straw

purchaser and the fact that it followed so closely after he had

received the criminal complaints. Nor does he account for the

fact that his statements evinced concern about having engaged in

the very kind of conduct that § 922(n) makes a crime and that he

6 The government conceded at oral argument that this set of facts was relevant to Daniells's mens rea at the time he received the firearm at issue.

- 24 - was wary of being caught by federal firearms investigators in

particular.

That Daniells fails to account for those features of the

record is significant because it is not enough for Daniells to

show that the various features of the record that he highlights

would permit a rational juror to find him not guilty. He needs to

show, even on his own telling, that the record demonstrates that

"no reasonable jur[or] could have found that Daniells knew that he

was under indictment." And, while we may not "stack inference

upon inference in order to uphold the jury's [guilty] verdict,"

Guzman-Ortiz,

975 F.3d at 55

(quoting United States v. Valerio,

48 F.3d 58, 64

(1st Cir. 1995)), neither may we pursue a "divide and

conquer" strategy in considering what the evidence as a whole

suffices to show,

Indeed, precisely because the "strength of

an inference cannot be decided in a vacuum,"

(quoting Tellabs,

Inc.,

551 U.S. at 323

), the greater the volume of circumstantial

evidence that tends to make the version of the facts supporting

the verdict more "likely . . . as compared to others," the more

likely that such evidence will be held sufficient to carry it,

id.

Thus, while it may be that each single piece of evidence

that bears on whether Daniells knew that he was "under indictment"

is open to interpretation, we must consider the record as a whole

in assessing his sufficiency challenge. And the totality of the

evidence -- circumstantial though it is -- supportably shows that

- 25 - Daniells resorted to the use of a straw purchaser on the heels of

the criminal complaints; that he wanted to conceal his conduct;

that the conduct that he wanted to conceal from the ATF agents was

the very conduct that § 922(n) prohibits (his receipt of firearms);

that by then he knew about § 922(n) from the ATF questionnaires

that he had earlier completed; and that he was experienced in

dealing in firearms in the black market and so would have been

familiar with federal firearms laws. We therefore conclude that

a rational juror supportably could find beyond a reasonable doubt

that Daniells had the knowledge that he contends that the

government needed to prove that he had -- namely, that he knew

that it was unlawful for him to receive a firearm because he knew

that his criminal complaints rendered him "under indictment."7

III.

Daniells contends that even if his § 922(n) conviction

need not be reversed, it must be vacated because of a due process

Daniells argues in his supplemental brief that his § 922(n) 7

conviction must be reversed because the government failed to prove that he knew that the Massachusetts criminal complaints charged him with offenses punishable by more than one year of imprisonment. This claim is not preserved because it was not raised in the District Court, so it is subject to plain-error review. And, for the same reasons we conclude that the evidence as a whole suffices to permit a rational juror to find beyond a reasonable doubt that he knew that he was "under indictment," we also conclude that it suffices to permit a rational juror to find that he knew that he had been charged with crimes punishable by more than one year of imprisonment. And, we add, the complaints stated the potential greater-than-one-year penalties on their face.

- 26 - violation resulting from the District Court's instructional

errors. See United States v. Latorre-Cacho,

874 F.3d 299, 302

(1st Cir. 2017) (citing Middleton v. McNeil,

541 U.S. 433, 437

(2004)); United States v. McLellan,

959 F.3d 442

, 465–67 (1st Cir.

2020). We disagree with Daniells's contention that the District

Court erred in instructing the jury on the "under indictment"

element. But we agree with Daniells that the District Court erred

in instructing the jury as to the "willfully" element and that the

conviction therefore must be vacated.

Daniells contends that the District Court's instruction

that the criminal complaints rendered him "under indictment"

necessarily -- but wrongly -- treated the question of whether the

criminal complaints rendered him "under indictment" as if it were

a matter of law for the court to decide rather than a matter of

fact for the jury to find. Reviewing de novo, United States v.

Karani,

984 F.3d 163, 174

(1st Cir. 2021); United States v. Norris,

21 F.4th 188, 194

(1st Cir. 2021), we see no merit to the challenge.

We understand Daniells in this challenge to dispute only

whether the "under indictment" element encompasses the type of

formal charge that a Massachusetts criminal complaint represents

when signed by a police officer and not the prosecuting attorney.

But, as we have explained, the question of whether the "under

indictment" element encompasses such a criminal complaint is a

- 27 - question of statutory interpretation and so one of law rather than

fact. See, e.g., Rivera,

131 F.3d at 224

; United States v. Gaudin,

515 U.S. 506, 513

(1995); see also Brede, 477 F.3d at 643–44

(treating question of whether a Minnesota criminal complaint

constituted an indictment purely as a question of law). Moreover,

as we also have explained based on Quinones's reasoning, see

161 F.2d at 81

, the "under indictment" element encompasses

Massachusetts criminal complaints as a matter of law even when

they are signed only by a police officer. Accordingly, this

instructional challenge fails.

Daniells's more substantial claim of instructional error

concerns the "willfully" element. Here, he contends that the

District Court erred by failing to instruct the jury as he had

requested that to prove that he "willfully" violated § 922(n) the

government needed to prove that he knew that his Massachusetts

criminal complaints rendered him "under indictment."

Daniells appears to be contending, in part, that he was

entitled to the requested instruction because § 922(n)'s

"willfully" element always requires proof of knowledge of being

"under indictment," rather than, as the government contends,

merely proof of knowledge that the defendant's action of "receiving

a firearm" was "unlawful" more generally. But, Daniells also

argues more narrowly that he was entitled to the requested

- 28 - instruction in his specific case because of the nature of the

evidence that was in the record. See McLellan,

(setting forth our "three-part test" for review of a "district

court's refusal to give a requested instruction" (quoting United

States v. Figueroa-Lugo,

793 F.3d 179, 191

(1st Cir. 2015))); see

also United States v. Flaherty,

668 F.2d 566, 581

(1st Cir. 1981)

(explaining that the defendant is entitled to an instruction on

his theory of defense where the evidence supports it and that this

requirement is "equally applicable to situations where special

facts present an evidentiary theory which if believed would defeat

the factual theory of the prosecution" (quoting United States v.

Leach,

427 F.2d 1107, 1112

(1st Cir. 1970))). We reject the former

contention that Daniells makes but agree with the latter.

Daniells relies chiefly on Rehaif for his more sweeping

contention as to why he was entitled to his requested "willfully"

instruction. But the government is right that Daniells is wrong

to rely on Rehaif because that case concerned neither the

"willfully" element in § 922(n) nor, for that matter, a "willfully"

element at all. See 139 S. Ct. at 2195–200.

Daniells does also appear to assert that -- Rehaif aside

-- a "willfully" element invariably requires proof of the more

specific kind of knowledge that he contends that the "willfully"

element in § 922(n) does. But, as the government emphasizes, we

- 29 - made clear in Andrade that the "willfully" element in

§ 924(a)(1)(D) does not necessarily require the government to

prove more than the defendant's knowledge that he was acting

unlawfully in a "general" sense by engaging in the conduct that is

prohibited by the statute of conviction. See 135 F.3d at 108–10.

And yet, Daniells fails to address this aspect of Andrade in

asserting that he was entitled to the requested "willfully"

instruction based on the nature of any "willfully" element. Thus,

we conclude that this more sweeping variant of his instructional

challenge fails for lack of development. See United States v.

Zannino,

895 F.2d 1, 17

(1st Cir. 1990).

We come, then, to Daniells's case-specific instructional

challenge regarding the "willfully" element. The government does

not suggest that Daniells either waived or forfeited this more

narrow-gauged challenge. Indeed, the government was asked at oral

argument whether Daniells was entitled in his specific case to the

"willfully" instruction that he requested even if such an

instruction is not generally required under § 922(n)'s "willfully"

element. Although the government argued in response that Daniells

was not, it did so only on the ground that the "willfully"

instruction that was given was "sufficient" to convey that the

jury had to find that Daniells knew that his conduct in "receiving

- 30 - the firearm" was unlawful. It thus contended that the instruction

given sufficed to convey what the requested instruction would have.

Because of what the record shows as to whether Daniells

raised this case-specific challenge to the denial of his

"willfully" instruction both below and on appeal and the

government's failure to argue that there was a forfeiture or

waiver,8 we proceed to address this challenge as preserved. And,

reviewing de novo, McLellan,

; United States v.

Baird,

712 F.3d 623, 627-28

(1st Cir. 2013), we conclude that the

challenge has merit.

8 Daniells not only argued to the District Court before Rehaif was handed down that he was entitled to the instruction at issue but also did so after he had contended to the District Court that there was no basis for convicting him of violating § 922(n) "in this case" unless the government proved that he knew that as a result of the Massachusetts criminal complaints he was "under indictment". We note, too, that in refusing to give the requested instruction, the District Court did not suggest that it was refusing to do so only because the request was premised on the instruction being required in any case under § 922(n)'s "willfully" element. Finally, Daniells's supplemental briefing on appeal incorporated his invocation in his opening principal brief of the three-part standard that we set forth in McLellan and have relied on in prior cases to determine when a particular instruction on an element may be required due to the evidence provided at trial, even though the element itself, in the abstract, may not require that such an instruction always be given. See Flaherty,

668 F.2d at 581

(quoting Leach,

427 F.2d at 1112-13

). Daniells then goes on in that brief to argue that the failure to give the requested instruction would not be "harmless" in his case, given the state of the evidence presented at trial bearing on the "willfully" element.

- 31 - a.

With respect to a challenge to the denial of a requested

instruction, McLellan first requires the defendant to make a

"threshold" showing "that he was entitled to the instruction" that

he requested.

(quoting Figueroa-Lugo,

793 F.3d at 191

). The defendant thus first must show that the evidence adduced

at trial supported the requested instruction. This "initial

threshold determination," we have explained, turns on "whether the

evidence, viewed in the light most favorable to the defense, 'can

plausibly support the theory of the defense.'"

(quoting United

States v. Gamache,

156 F.3d 1, 9

(1st Cir. 1998)).

"If the evidence is sufficient, we then move on to a

three-part test."

And, under that test, "the district court

is reversed only if the proffered instruction was '(1)

substantively correct as a matter of law, (2) not substantially

covered by the charge as rendered, and (3) integral to an important

point in the case so that the omission of the instruction seriously

impaired the defendant's ability to present his defense.'"

McLellan,

(quoting Baird,

In pressing his case-specific instructional challenge,

Daniells argues that the government's only theory that he acted

willfully was that at the time that he received the firearm in

question he knew of § 922(n)'s prohibition on individuals who are

"under indictment" "receiving" firearms and that he also knew by

- 32 - that time that the Massachusetts criminal complaints brought him

into that category of individuals. And, he further argues that

his defense at trial focused on his theory that he did not know

that receiving the firearm was unlawful precisely because he did

not know that those complaints rendered him "under indictment."

So, "begin[ning] with the [threshold] question of

whether the evidence at trial . . . plausibly support[s]"

Daniells's theory of defense, Baird,

, we conclude

that the evidence does. The record plausibly supports the

conclusion that Daniells would not have known that it was unlawful

for him to receive the firearm that grounds his § 922(n) conviction

unless he knew that he was "under indictment" at that time.

There is nothing in the record to indicate that -- absent

knowledge of § 922(n)'s bar -- Daniells would have had any reason

to know that he was so barred, even if he knew that he had received

the Massachusetts criminal complaints (as the record shows that he

did). There is no evidence, for example, that, apart from

§ 922(n), such criminal complaints would have imposed that

criminal bar as a matter of state law or under some other provision

of federal law.

There also is nothing in the record to indicate that

Daniells would have had reason to understand § 922(n)'s bar to

apply to him other than by reason of his knowing that his

Massachusetts criminal complaints rendered him "under indictment."

- 33 - Thus, his theory of defense does have plausible support in the

record.

We turn, then, to McLellan's "three-part test," which

first requires the defendant challenging the denial of a requested

instruction to show that instruction was "substantively correct as

a matter of law."

(quoting Baird,

). We conclude that Daniells has done so due to the special

facts of his case.

If a rational juror could find on this record beyond a

reasonable doubt that Daniells acted with knowledge that receiving

the firearm at issue was unlawful even absent a finding that he

knew that he was "under indictment," then it would follow that

Daniells would be unable to show that his requested instruction

was a substantively legally correct one. And, in that event, he

could not satisfy McLellan's first prong. See

;

accord Leach

427 F.2d at 1112-13

(concluding that a "special

facts"-based request was legally incorrect because it would have

precluded the jury from reaching a guilty verdict on other

permissible interpretations of the record that provided a

supportable basis for finding the element proved).

But the government does not contend that a rational juror

could so find on this record. Indeed, the government appears to

accept that the only basis in the trial record for finding that

- 34 - Daniells acted "willfully" in "receiving" the firearm is the record

evidence that the government contends supports a finding that

Daniells did know that he was "under indictment."

To that point, the government expressly conceded in its

briefing and at oral argument that the only reason "as a factual

matter" that Daniells would have known that it was unlawful for

him to receive the firearm was if he knew that the Massachusetts

criminal complaints brought him within the prohibition that

§ 922(n) sets forth because they rendered him "under indictment."

We see no reason to second guess the government's

assessment of the record, given what the record shows. Cf. United

States v. Tobin,

552 F.3d 29, 34

(1st Cir. 2009) ("accept[ing]

[the government's] concession that assuming the statute [at issue]

require[d] proof of purpose," its proof on the element would be

insufficient). It is true, as we have explained in rejecting

Daniells's sufficiency challenge to this same conviction, that the

record shows that Daniells switched to buying guns through a straw

purchaser in the wake of the issuance of the Massachusetts criminal

complaints. It is also true, as we explained in rejecting that

same sufficiency challenge, that testimony in the record shows

that, after Daniells resorted to using the straw purchaser,

Daniells expressed concerns about being caught by the ATF and about

ATF agents discovering that the straw purchaser had given him the

firearm that grounds the § 922(n) charge. But, as we have noted,

- 35 - nothing in the record indicates that -- apart from § 922(n)'s

prohibition -- the Massachusetts criminal complaints would have

made it unlawful for Daniells to receive the firearm at issue when

previously he was able to receive firearms. Nor can we say on

this record that the switch alone suffices to permit a rational

juror to find (rather than speculate) that he knew that the

Massachusetts criminal complaints made it unlawful for him to

"receive" the firearm.

Indeed, the record reveals that Daniells would have had

other significant reasons to avoid detection of the purchase of

the firearm at issue by federal investigators -- and so to use a

straw purchaser when he did -- that had nothing to do with an

awareness as to whether the receipt of a firearm was unlawful.

Specifically, the firearm is one for which there is also evidence

that Daniells arranged the purchase in connection with not just

receiving it but also dealing it. And "dealing" the firearm is

something that Daniells was barred from doing under § 922(a)(1)(A)

for reasons that have nothing to do with his Massachusetts criminal

complaints.

The picture does not change if we consider the statements

that Daniells supposedly made about (1) being concerned about being

caught by the ATF and (2) then learning that he had been "give[n]"

the firearm. The first statement equally could support the theory

that he was concerned about being caught dealing in firearms, and

- 36 - the second statement was made in such a manner as to be ambiguous

as to whether it was an expression of concern about his being

caught "dealing" in firearms or merely his being caught having

received one.

Given our oft-expressed concern about upholding a

conviction against a sufficiency challenge on the basis of the

stacking of inferences, and when there is an equally plausible

explanation for the defendant's conduct that would warrant

acquittal, Guzman-Ortiz,

975 F.3d at 55

(citing United States v.

Andujar,

49 F.3d 16, 22

(1st Cir. 1995)), we follow the government

in concluding that Daniells's defense theory, if believed, would

defeat the factual theory of the prosecution, cf. Tobin,

552 F.3d at 34

. It therefore follows that his requested instruction as to

that theory was substantively correct as a matter of law.9 Thus,

Daniells has satisfied the first prong of the McLellan test.

9 We do not mean to suggest that the evidence would not suffice to satisfy the "willfully" element if there were evidence that Daniells had been advised that he could no longer receive a firearm after the Massachusetts criminal complaints issued but was not told that he could not do so because those complaints rendered him "under indictment." Cf. United States v. Minor,

63 F.4th 112

, 121 n.6 (1st Cir. 2023) (en banc). But, as the government has explained, it proved the willfully element here precisely by showing that Daniells (1) was aware of the prohibition set forth in § 922(n) on the receipt of firearms by those who are "under indictment" and (2) changed his behavior close-in-time to the complaints, such that a juror could infer that he was aware that the complaints brought him within that prohibition. We thus have no occasion to address other scenarios. To be sure, the government does also point to testimony that Daniells told an alleged

- 37 - We also conclude that Daniells has satisfied the third

prong of the McLellan test, which requires us to consider whether

the requested instruction was "integral to an important point in

the case so that the omission of the instruction seriously impaired

the defendant's ability to present his defense."

(quoting Baird,

). We reach this conclusion

because, if the jury ultimately "credited [Daniells]'s version" of

the facts as to his state of mind at the time that he received the

gun, then there would be no basis for the jury to convict him even

under the government's understanding of what the "willfully"

element requires. See Baird,

712 F.3d at 633

. Indeed, as

explained, there is no evidence in the record that Daniells had

accomplice that his "license to carry" firearms in Pennsylvania had been "suspended," which the government argues was coded language that reflects Daniells's awareness that he had become prohibited from receiving a firearm. But the government acknowledges that, like the other evidence supporting the willfully element, the evidence of Daniells's use of such coded language is probative only insofar as it shows Daniells's awareness that the issuance of the criminal complaints had triggered a change in his status with respect to his ability to receive a firearm. The government thus does not suggest that the statement independently supports a finding by the jury that Daniells had knowledge that the conduct of receiving the firearm was unlawful at the relevant time even if the jury believed that Daniells did not know that his complaints rendered him "under indictment" and thus within § 922(n)'s prohibition. We add that this understanding comports with the evidence, as the evidence does not show that Daniells's Pennsylvania license to carry had been suspended and thus the evidence would not support a finding that Daniells had knowledge that it would be unlawful to engage in the conduct of receiving a firearm because he knew that he had a suspended Pennsylvania license, even assuming that kind of knowledge could otherwise satisfy the willfully element here.

- 38 - been advised without reference to § 922(n) that it was illegal for

him to receive the firearm when he did. Nor does the government

contend that there is evidence in the record that indicates that

he would have known that it was unlawful for him to do so for

reasons independent of his having been issued the Massachusetts

criminal complaints that made him subject to § 922(n)'s criminal

bar. And, again, our own review of the record provides us with no

reason to take issue with the government on that score.

That leaves only the test's second prong, which concerns

whether the instruction requested was "substantially covered by

the charge as rendered." See McLellan,

. "[T]he

central inquiry" as to this prong on appeal "reduces to whether,

taking the charge as a whole, the instructions adequately

illuminate[d] the law applicable to the controlling issue[] in the

case without unduly complicating matters or misleading the jury."

United States v. DeStefano,

59 F.3d 1, 3

(1st Cir. 1995) (citations

omitted).

The government contends that the "willfully" instruction

that the District Court gave did "adequately illuminate the law

applicable to the controlling issue[]" because the District Court

instructed the jury that acting "willfully" meant acting "with the

intent or bad purpose to disobey or disregard the law" and "the

intent to do something that the law forbids." We are not

persuaded.

- 39 - The government concedes that, to satisfy the "willfully"

element in § 922(n), it "did need to prove" that Daniells knew

that the particular "conduct" of "receiving the firearm" was

"unlawful" at the time that he received it, see Andrade,

135 F.3d at 108

; see also Dixon v. United States,

548 U.S. 1, 5

(2006)

(explaining that the "willfully" mens rea element in § 922(n)

requires proof of the defendant's "knowledge that his conduct was

unlawful"). So, the pivotal issue is whether the "willfully"

instruction given conveyed to the jury that it needed to find that

Daniells had that knowledge, as there is no question that the

"willfully" instruction that Daniells requested -- for the reasons

we have explained -- would have conveyed as much. See also, e.g.,

United States v. Moran,

503 F.3d 1135, 1147

(10th Cir. 2007)

(explaining that a defendant's challenge to the district court's

refusal to give a "fact specific" instruction about his defense

failed on appeal only because the instruction given "adequately

informed the jury of the relevant law").

The "willfully" instruction that the District Court

gave, however, did not specify that Daniells needed to know that

the "unlawful" conduct that he was intending to engage in was his

receipt of the firearm. The terms of the instruction do not, for

example, provide that to find that Daniells was acting willfully

the jury had to find that he knew that he was acting unlawfully by

receiving the firearm. The terms of the instruction provide only

- 40 - that Daniells must have, "act[ing] with the intent to do something

that the law forbids," (emphasis added) "received the firearm" at

issue.

The government contends nonetheless that the instruction

given conveyed essentially what Daniells's requested instruction

would have conveyed. But, we do not see how that can be so.

As Daniells points out, the record provides a basis for

finding that he was doing "something" (to use the challenged

instruction's own word) independent of receiving the firearm that

was unlawful at the time that he was given it -- namely, dealing

in firearms. Indeed, he was being tried on a charge of unlawful

firearms dealing in the very same trial for conduct that overlapped

temporally with his conduct in allegedly violating § 922(g), and

there is no dispute that evidence in the record suffices to support

that "dealing" charge.

As a result, in Daniells's case, the instruction given

presented precisely the problem that his requested instruction

aimed to address. It ruled in what his requested instruction would

have ruled out -- a finding that he acted "willfully" in receiving

the firearm while "under indictment" merely because he knew that

he was acting unlawfully at that time by doing "something that the

law forbids" (dealing in firearms), even if he did not know that

he was acting unlawfully by receiving the firearm. See Baird,

712 F.3d at 632-33

(holding that a defense instruction that was

- 41 - warranted on the record was not "substantially incorporated" by

the instructions given because we could "not know for sure that

the jury" knew that it "could acquit" the defendant if it

"believed" the defendant's factual theory).10

In that way, the instruction was noticeably different

from the one given in Andrade. There, the district court

instructed the jury that "[o]ne acts willfully when he

intentionally commits the acts proscribed by law with knowledge

that his conduct is unlawful." (Emphasis added). Read in context,

that instruction is comfortably read to link the defendant's

"knowledge" to "the acts proscribed by law." The instruction in

this case, however, does not use language establishing such a link,

because it provides only that the defendant "act with the intent

to do something that the law forbids." (Emphasis added). Thus,

In Baird, we concluded that a defendant charged with 18

10 U.S.C. § 922

(j), which makes it a crime to receive or possess a stolen firearm, was entitled to an instruction that "the jury could . . . acquit [the defendant] if it found that he bought the gun without knowledge that it was stolen and that he disposed of the weapon as soon as reasonably possible after learning the truth."

. We then rejected an argument by the government that the substance of that request was "substantially covered" by the district court's explanation to the jury that "the Government is not arguing that a person is guilty as soon as he/she had a reasonable cause to believe a firearm in their possession is stolen," because that instruction "did not do enough to inform the jury that it could acquit" the defendant "if it believed that he only possessed the gun for a few moments with knowledge that it was stolen." See

id. at 633

. So, too, here, it cannot be said that the instruction that was given informed the jury that it could acquit Daniells if it believed that Daniells did not know that his conduct in receiving the firearm was unlawful.

- 42 - while the instruction given in Andrade would have sufficed in this

case, the instruction that the District Court actually gave did

not.11

We do not mean to suggest that the District Court was

required to "parrot" the exact instruction that Daniells

requested. DeStefano,

59 F.3d at 3

. But the District Court was

required under McLellan to give an instruction that made clear to

the jury that it needed to find that Daniells knew that the

"conduct" of "receiving a firearm" was "unlawful" at the time that

he received it. And yet the District Court rejected an instruction

that would have done just that -- the fact-based one that Daniells

requested -- in favor of one that permitted the jury to base a

guilty verdict on the problematic finding that his requested

instruction would have prevented -- that is, a finding that

Daniells acted "willfully" in receiving the firearm while "under

indictment" merely because he knew that he was acting unlawfully

11Our opinion in Andrade also emphasized this link between the defendant's knowledge and the proscribed conduct in characterizing the position of the Second Circuit that we were embracing. See Andrade, 135 F.3d at 109–110 & n.4 (adopting Second Circuit's position "that the defendant [must] be aware that his conduct is unlawful" (emphasis added), and observing that Second Circuit's holding was based on its finding that "the evidence 'demonstrate[d] that [the defendant] understood that his firearm sales [(the relevant conduct at issue)] violated the law" (first alteration in original) (emphasis added) (quoting United States v. Collins,

957 F.2d 72, 77

(2d Cir. 1992)).

- 43 - in some other way (e.g. dealing the firearm) even if he did not

know that he was acting unlawfully by receiving the firearm, which

is the conduct that § 922(n) proscribes.12

Due to the gap between what the instruction given

conveyed and what the instruction requested would have conveyed,

we conclude that the former instruction did not "substantially

cover[]" the latter instruction. See McLellan,

;

Baird,

. We also conclude that the government's

contention that United States v. Griffin,

524 F.3d 71

(1st Cir.

2008), reveals otherwise is not persuasive.

That case addressed, on plain-error review, an

instruction that involved a criminal statute that prohibits

signing a false tax statement "willfully and knowing it was false."

See

id. at 76

. It does not address the second prong of the McLellan

test at all.

Daniells has thus satisfied McLellan's three-part test.

12 We recognize that the District Court in the course of instructing the jury did say that Daniells must have known that he was "under state indictment at the time he received a firearm." The government does not argue, however, that this statement "substantially cover[ed]" what Daniells requested, McLellan,

, and that is for good reason. The District Court made this statement to the jury in the context of the District Court's explanation to the jury that it was "not necessary to prove that [Daniells] knew the crime was punishable by a term in prison of more than one year." Indeed, in the very next sentence, the District Court further stated that "[i]t is enough for the government to prove that the defendant knew that the charge had been made against him at the time that he allegedly received the firearm."

- 44 - c.

The government contends that, in any event, any

instructional error on the "willfully" element was harmless. See

McLellan,

959 F.3d at 466

(explaining that an error on an

instruction that "deals with" an "element of the offense can be

harmless beyond a reasonable doubt, if, given the factual

circumstances of the case, the jury could not have found the

defendant guilty without making the proper factual finding as to

that element"); United States v. Doherty,

867 F.2d 47, 58

(1st

Cir. 1989) (finding error in instruction on an element of the

offense harmless because it was "virtually inconceivable that the

jury could have found [the defendants] guilty . . . without

believing that" the necessary factual finding had been

established). But, here, too, we disagree.

Because the error deals with an essential element of the

offense, the government bears the burden of making the showing

that the error was harmless. McLellan,

959 F.3d at 466

(citing

United States v. Wright,

937 F.3d 8, 30

(1st Cir. 2019)). It is

not enough for purposes of this harmless error inquiry, moreover,

for the government to show that the record evidence suffices to

satisfy the "willfully" element. See United States v. Fernández-

Jorge,

894 F.3d 36, 54

(1st Cir. 2018) (explaining that an

instructional error regarding an element may not be harmless even

where "we have concluded that, for Rule 29 purposes, a rational

- 45 - fact-finder could have found" the necessary fact because that

inquiry "requires far less than [a showing of] 'overwhelming'

evidence").

The government does contend that any error was harmless

beyond a reasonable doubt because the jury could not have found

that Daniells, "act[ing] with the intent to do something that the

law forbids," "received the firearm" without finding that Daniells

knew that it was "receiv[ing] the firearm" that was unlawful. But,

as we have already explained, the record certainly contained enough

circumstantial evidence to support a juror's finding that Daniells

knew that something else he was contemporaneously "inten[ding]" to

do (e.g., "dealing" firearms) was forbidden by the law. The

government has thus failed to show that the jury could not have

convicted Daniells on the § 922(n) charge without making the

necessary finding as to the willfully element. Our review of the

District Court's instructions also reveals that there is nothing

else in them that would have ensured that the jury made a finding

that Daniells knew that receiving the firearm was unlawful at the

time that he received it. Thus, the conviction must be vacated.13

13In light of our conclusion on this score, we do not address Daniells's remaining challenges that concern the jury instructions.

- 46 - IV.

Daniells also challenges his conviction for willfully

violating

18 U.S.C. § 922

(a)(1)(A), the prohibition on "dealing in

firearms" without a federal license. He does so on the ground

that he was denied his Sixth Amendment right to counsel. See U.S.

Const. amend VI. Once again, we set forth the relevant undisputed

facts before addressing the merits.

Shortly after Daniells was arrested, on July 15, 2015,

he was questioned during a proffer session by federal agents in

Massachusetts. The agents asked him about the identity of an

individual who had traveled with him from Massachusetts to

Pennsylvania on one of the gun-purchasing trips.

Daniells consulted with his then-counsel, Michael

Schneider, before answering the agents. Daniells then identified

Kenneth Brobby as the individual in question. The government at

some point thereafter contacted Brobby and obtained incriminating

information about Daniells.

During the same proffer session with Daniells, the

agents also asked Daniells to provide the passcode for his iPhone,

which they had seized upon his arrest. Daniells refused to do so.

Roughly two weeks later, however, a government prosecutor emailed

Schneider to determine whether Daniells would willingly provide

- 47 - the passcode, and Schneider responded that he would speak to

Daniells about it.

On August 4, 2015, the government obtained a warrant to

search the phone and a court order directing Apple, Inc. ("Apple")

to provide reasonable assistance to access its data. Thereafter,

the government advised Daniells through Schneider that it would

serve the order on Apple unless Daniells willingly provided his

password.

Schneider obtained three potential passwords from

Daniells during a meeting that same week. Not long after that,

Schneider provided the potential passwords to the government.

Based in part on information obtained from Brobby and

from Daniells's iPhone, the government obtained the superseding

indictment that charged Daniells with dealing in firearms without

a license. A few months after the superseding indictment had

issued -- and after Daniells had obtained new pre-trial counsel,

Gordon Spencer -- Daniells filed two motions seeking to suppress

the evidence obtained as a result of the disclosures. The motions

were based on the argument that Schneider's role in turning over

Brobby's name and Daniells's passcode amounted to ineffective

assistance of counsel.

Following a three-day evidentiary hearing on the matter,

the District Court orally denied the motions to suppress on March

12, 2018. It then issued a written decision explaining its

- 48 - reasoning shortly thereafter. United States v. Daniells, No.

15-CR-10150,

2018 WL 1639688

(D. Mass. Apr. 5, 2018).

After Spencer later withdrew from his case, Daniells --

through a new lawyer, Derege Demissie, who ultimately served as

Daniells's trial attorney -- filed a motion for reconsideration of

the suppression motions just described and a new evidentiary

hearing. The motion contended in part that Spencer had been

laboring under an actual conflict while he litigated the

suppression motions because Spencer had been implicated in

communicating allegedly improper messages to witnesses -- messages

which later served as a basis for the obstruction and witness

tampering charges brought against Daniells (Counts 3 and 4). The

District Court summarily denied that motion at a pretrial

conference.

Daniells bases the Sixth Amendment challenge to this

conviction in part on Strickland v. Washington,

466 U.S. 668

(1984), as he contends that he received constitutionally

ineffective assistance of counsel. To succeed on his Strickland

claim, he must show that counsel's performance was "deficient,"

and that the deficient performance prejudiced his defense.

Id. at 687, 692

.14 "We review the district court's legal conclusions de

14 Although we generally address Sixth Amendment claims "on

- 49 - novo and its findings of fact for clear error." Turner v. United

States,

699 F.3d 578, 584

(1st Cir. 2012).

Insofar as Daniells's Strickland claim takes aim at the

advice that his pre-trial counsel, Michael Schneider, gave him to

provide agents the name of a witness (Brobby) who subsequently

provided incriminating information about Daniells, it fails

because Daniells has not shown prejudice. The District Court found

as a matter of fact that, as of the time of the proffer session,

government agents had already received information from a separate

"cooperating witness" that "another person had accompanied

Daniells to Pennsylvania" to make a straw purchase "on at least

one occasion, but agents thought the witness had identified the

wrong person." Daniells,

2018 WL 1639688

, at *1. The government

argues that these facts show that, even without having obtained

Brobby's name at the proffer session, the government had an

"obvious interest in identifying" him and an "active

investigation" into the matter. Because Daniells makes no argument

direct appeal" only where the record is sufficiently developed for appellate review, United States v. Messner,

37 F.4th 736, 741

(1st Cir. 2022), we may consider Daniells's challenge here because the District Court both held an evidentiary hearing on the ineffective-assistance-based motion to suppress the evidence after Daniells had retained new counsel and resolved the issue on the merits after making factual findings, see Daniells,

2018 WL 1639688

, at *3; see Messner,

37 F.4th at 742

(noting that where "the factual record is clear, we [may] proceed[] directly to reviewing the defendant's claim on the merits" (collecting cases)).

- 50 - that the government -- absent his counsel's advice to disclose the

name -- would have been unable to correctly identify Brobby and

thus obtain the same incriminating information from him that it

did in any event, he fails to show prejudice. See Strickland,

466 U.S. at 700

Insofar as Daniells bases his Strickland claim on

Schneider's provision of Daniells's iPhone passcode to government

investigators, it also fails because he does not show prejudice.

Daniells argues that the only reason that the government

investigators discovered other incriminating evidence regarding

his firearms dealing is that the iPhone password was provided to

them. But the District Court found that the government had already

"obtained an order directing Apple to provide reasonable technical

assistance to extract the data for the government." Daniells,

2018 WL 1639688

, at *3. The District Court also found that the

government would have ultimately been able to access the iPhone in

any event by using an "unlocking tool."

Id. at *5

. And the

government is correct that Daniells has made no showing that those

findings were clearly erroneous on this record.

Daniells has one more basis for challenging his

conviction for dealing firearms on Sixth Amendment grounds: He

contends that the conviction must be vacated because he was

deprived of his "right to representation that is free from

- 51 - conflicts of interest." Wood v. Georgia,

450 U.S. 261, 271

(1981)

(citing Cuyler v. Sullivan,

446 U.S. 335

(1980)). That right is

violated when the defendant can show that his counsel was laboring

under an "actual conflict." See id. at 271-72.

The conflict Daniells asserts is that his defense

counsel for his suppression motions, Spencer, had played a role in

discouraging witnesses from cooperating in the investigation into

Daniells and was being investigated by the government for that

conduct. Daniells contends that this conflict was an "actual

conflict" within the meaning of Cuyler because Spencer (1) "could

have pursued a plausible alternative defense strategy or tactic

and (2) the alternative strategy or tactic was inherently in

conflict with or not undertaken due to the attorney's other

interests or loyalties." United States v. Ponzo,

853 F.3d 558, 575

(1st Cir. 2017) (quoting United States v. Colón-Torres,

382 F.3d 76, 88

(1st Cir. 2004)); see also Brien v. United States,

695 F.2d 10, 15

(1st Cir. 1982) (explaining that, in assessing

proffered "plausible alternative defense strateg[ies] or

tactic[s]," the court need not find that they "would necessarily

have been successful," but rather that they have "sufficient

substance to be [] viable alternative[s]"). The specific error

that Daniells contends that the District Court made with respect

to this "actual conflict"-based Sixth Amendment claim, moreover,

- 52 - is that it denied him the evidentiary hearing that he had requested

on the claim.15

It is true that Daniells made his motion for the

evidentiary hearing on this actual conflict claim in a motion for

reconsideration (or rehearing) of the denial of the motions to

suppress the evidence described above. But the actual conflict

claim was premised on newly discovered evidence that Spencer may

have been laboring under an actual conflict at the time of the

suppression hearing (and thus on a ground for relief that he could

not have previously asserted). Moreover, the District Court denied

the hearing request on the ground that Daniells failed to present

a "sufficiently persuasive argument of conflict" rather than that

it was not properly raised in such a motion. Indeed, consistent

with that understanding, the government does not contest that

Daniells is entitled to an evidentiary hearing on the claim if he

15 We note that Daniells, based on the Second Circuit's decision in United States v. Fulton,

5 F.3d 605, 609

(2d Cir. 1993), appears to suggest that we should adopt a "per se" rule for circumstances such as this one in which a government witness alleged direct knowledge of criminal conduct related to the defendant's alleged crimes,

id. at 611

("The per se rule applies when an attorney is implicated in the crimes of his or her client since, in that event, the attorney cannot be free from fear that a vigorous defense should lead the prosecutor or the trial judge to discover evidence of the attorney's own wrongdoing." (citations and quotation marks omitted)). But we need not address that question because we agree with Daniells's related argument that he was entitled to a hearing on his Cuyler claim even under the two-part "actual conflict" test. See Ponzo,

853 F.3d at 575

- 53 - can show on appeal that the District Court abused its discretion

in denying the request for a hearing on the actual conflict issue

that had been presented. See United States v. Francois,

715 F.3d 21, 32

(1st Cir. 2013) (explaining that a "hearing is required

only if the movant makes a sufficient threshold showing that

material facts" bearing on the claim "are in doubt or dispute"

(quoting United States v. Staula,

80 F.3d 596, 603

(1st Cir.

1996)).

Thus, we must review the denial of his motion for the

evidentiary hearing for abuse of discretion.

And, as we will

explain, we conclude that there was an abuse of discretion here.

The government does not appear to contest the contents

of what Daniells identified as the statements made by a grand jury

witness to an investigator that implicated Spencer in having

engaged in improper communications with witnesses. Nor does the

government dispute that an attorney investigated in connection

with representing a client may create an actual conflict of

interest. Thus, the denial of the evidentiary hearing cannot be

upheld based on Daniells's having failed to have made a case for

there being any conflict at all.

The question we next must address, then, concerns

whether Daniells identified to the District Court factual disputes

- 54 - bearing on whether Spencer had (1) plausible alternative

strategies or tactics that (2) were inherently in conflict with or

that may not have been undertaken due to his own interests or

loyalties related to the asserted conflict. See Ponzo,

853 F.3d at 575

. We conclude that he did.

With respect to plausible alternative tactics or

strategies, Daniells contended in his motion for an evidentiary

hearing that Spencer failed to make a serious effort to show that

Daniells did not in fact provide consent for the disclosure by his

prior attorney, Schneider, of Daniells's cell phone passcode to

the government. Daniells pointed out that Spencer never objected

to the government attorney's questioning of Schneider at the

suppression hearing, even though the government attorney was the

same attorney who received the passcode from Schneider and that

attorney and Schneider were the only two who were present during

the relevant conversations. Daniells further pointed out that

Spencer failed to make such an objection even though Schneider's

testimony showed that Schneider could not remember whether

Daniells had provided consent. Daniels also pointed out that

Spencer failed to make the objection even though Spencer never

called that government attorney to elicit that attorney's version

of the circumstances under which Schneider had provided the

government the passcode despite the fact that Spencer told Daniells

- 55 - that he would call that attorney to obtain that attorney's version

of the events.

Daniells relatedly claimed that Spencer did not attempt

to put on an expert witness to rebut the government agent's expert

testimony that the government would have been able to access the

phone's data even absent Schneider's provision of the passcode.

And Daniells supported that contention below by citing to cases in

which experts had concluded that an iPhone could not be accessed

and in which Apple had refused to comply with a technical

assistance order.

Notably, the government does not appear to contest on

appeal that Daniells's contentions below sufficed to show that

Daniells had identified "viable" alternative "strateg[ies] or

tactic[s]" that Spencer could have pursued but did not. Brien,

695 F.2d at 15

. Nor do we see a reason to conclude otherwise.

See Daniells,

2018 WL 1639688

, at *5 (concluding as a matter of

fact that Daniells consented to "providing [the passcodes] to the

government" and that the disclosure did not prejudice him based on

expert testimony that the "extraction of data from the defendant's

iPhone . . . was inevitable"). So, if there is a basis for the

District Court to have denied the evidentiary hearing, that basis

must be found elsewhere.

- 56 - b.

We come, then, to the question whether Daniells made an

adequate showing to the District Court that there were factual

disputes as to whether Spencer's unpursued, viable alternatives

would have been "inherently in conflict with" or "not undertaken"

due to Spencer's own loyalties or interests. Ponzo,

853 F.3d at 575

. To make that showing, Daniells contended that Spencer may

have had an incentive to "curry favor with the government by not

fully defending [him] against the government." And Daniells argued

to the District Court that he could back up that contention as

follows.

Daniells argued that he would be able to show more than

that Spencer had been implicated in discouraging witnesses to

cooperate with the government in Daniells's investigation and that

the government was investigating Spencer's conduct in that regard.

Daniells contended that he also would be able to show that Spencer

did not take any steps to correct his actual or perceived

impropriety or move to withdraw as counsel after the government

witnesses had implicated him. Daniells then cited to decisions of

other circuits that have found actual conflicts where defense

counsel had been alleged to have been implicated in the same

criminal investigation or charges as the defendant. See United

States v. Fulton,

5 F.3d 605, 609

(2d Cir. 1993) (explaining that

"[i]t is well-settled . . . that an actual conflict of interest

- 57 - exists when an attorney engages in wrongful conduct related to the

charge for which the client is on trial"); see also, e.g., Gov’t

of V.I. v. Zepp,

748 F.2d 125, 136

(3d Cir. 1984).

We note that in Fulton the Second Circuit described two

ways in which an attorney might feel "conflicted" and thus

susceptible to government pressure to avoid vigorously pursuing

otherwise viable defense strategies in the face of allegations of

involvement in the defendant's allegedly criminal conduct:

First, if the allegations are true . . . the attorney may fear that a spirited defense could uncover convincing evidence of the attorney's guilt or provoke the government into action against the attorney. Moreover, the attorney is not in a position to give unbiased advice to the client about such matters as whether or not to testify or to plead guilty and cooperate since such testimony or cooperation from the defendant may unearth evidence against the attorney. Second, even if the attorney is demonstrably innocent and the government witness's allegations are plainly false, the defense is impaired because vital cross- examination becomes unavailable to the defendant.

5 F.3d at 610

(citations omitted).

Moreover, the Third Circuit in Zepp explained that,

where trial counsel has failed to take steps to avoid "professional

impropriety [or] the appearance of impropriety" following

allegations of involvement in the defendant's alleged criminal

conduct, it "is unrealistic for [the] court to assume that [an]

attorney vigorously pursued his client's best interest entirely

- 58 - free from the influence of his concern to avoid his own

incrimination."

748 F.2d at 136

. Accordingly, the Third Circuit

held, such "facts alone [would establish that] there was an actual

conflict of interest which required withdrawal by trial counsel or

disqualification by the court."

Notwithstanding Fulton and Zepp, the government argues

that Spencer's alleged failures to have pursued other tactics or

strategies with respect to the suppression hearing cannot have

been "connect[ed]" to a diverging interest. It reasons that

Spencer would have had as much an interest as Daniells had himself

in successfully litigating those suppression motions. After all,

the government contends, Spencer would have wanted to curb the

government's ability to use the assertedly damning material at

Daniells's trial just as much as Daniells if Spencer were concerned

about being investigated for his own wrongdoing.

But the critical question is whether Spencer may have

had an incentive to pursue Daniells's defense less vigorously than

Spencer would have if Spencer had no reason to avoid "provok[ing]

the government into action against [him]." Fulton,

5 F.3d at 610

;

see also Zepp,

748 F.2d at 136

. And, with respect to that question,

we fail to see a basis for concluding that Spencer would have had

no such incentive, given that the government does not contest the

basis for concluding that Spencer was implicated in the conduct

that the government itself was investigating.

- 59 - Nor does our decision in United States v. Martorano,

620 F.2d 912

(1st Cir. 1980), suggest otherwise. There, we rejected

a claim that the failure by an attorney who represented two clients

to call a particular witness revealed an actual conflict. We did

so because, "to the extent [the sought-after] testimony would have

helped [one defendant], it would also . . . have helped" the other,

such that the "interests" that had been identified "cut across

both clients' cases."

Id. at 917

The relevant interests of defense counsel and the

defendant here, however, were not similarly aligned. And that is

precisely because of the defense counsel's asserted conflict. See

Spencer's chief interest may not have been zealously defending

a client, as it was in Martorano (albeit a co-defendant in that

case). Spencer's chief interest may instead have been avoiding

government action against himself -- an interest that a conflicted

attorney may feel could be served by failing to mount a "spirited

defense." Fulton,

5 F.3d at 610

; see also Zepp,

748 F.2d at 136

;

cf. Colón-Torres, 382 F.3d at 88–89 (finding that remand for

factfinding was warranted where there were "worrisome indications"

that an attorney-client conflict existed because the attorney may

have been "absorbed in defending his own performance").

We thus conclude that Daniells identified disputes

bearing on the question of whether Spencer's viable alternatives

were "inherently in conflict with" or "not undertaken" due to his

- 60 - own loyalties or interests. We thus conclude that Daniells has

shown that the District Court abused its discretion in denying him

the evidentiary hearing.

The government appears to argue in its supplemental

brief that even if Daniells had met his burden in showing "that he

was entitled to an evidentiary hearing . . . to substantiate his

conflict allegation," he could not demonstrate "entitlement to

substantive relief based on that alleged conflict, such as the

reopening of the suppression record." In other words, the

government claims, the proper relief for his actual conflict claim

in this context would not have been a rehearing of the underlying

suppression motions. The government thus contends that we may

affirm the District Court's denial of the motion for a hearing on

that ground.

But the government makes no argument that a suppression

hearing that bears on the evidence presented at trial (like the

one at issue here) is not a critical stage of the proceeding for

which Sixth Amendment protections attach. See, e.g., United States

v. Hamilton,

391 F.3d 1066, 1071

(9th Cir. 2004) (holding a

suppression hearing was a "critical stage" of the proceeding as it

bore on "evidence relating to [the defendant's] case"). We thus

do not see on what basis we could conclude that the appropriate

remedy for a successful actual conflict claim here would not be a

- 61 - rehearing of the suppression motion that was infected by the

conflict. And that is so because, once it has been shown that

counsel at a critical stage labored under an actual conflict, we

presume prejudice with respect to the relevant proceeding. See

Mickens v. Taylor,

535 U.S. 162, 166

(2002) ("We have spared the

defendant the need of showing probable effect upon the outcome,

and have simply presumed such effect, where . . . during a critical

stage of the proceeding . . . the defendant's attorney actively

represented conflicting interests.").

Thus, we remand for an evidentiary hearing on the

attorney-conflict issue. For, even where actual-conflict-based

Sixth Amendment claims have debuted for the first time on direct

appeal, we have remanded for an evidentiary hearing to make the

necessary findings to resolve the merits of the issue where the

record shows "sufficient indicia" of an actual conflict. See,

e.g., Colón-Torres,

382 F.3d at 90

; see also, e.g., United States

v. Segarra-Rivera,

473 F.3d 381

, 384–85 (1st Cir. 2007) (taking a

similar approach).16 We similarly do so here, with directions for

the District Court to make determinations as to the appropriate

relief following the resolution of the actual conflict claim and,

16We also note that the government does not ask for us to defer resolution of this claim for future habeas proceedings. See Segarra-Rivera,

473 F.3d at 385

(explaining that, "unlike [Strickland] claim[s]," actual conflict claims are "not routinely relegated to collateral review").

- 62 - if necessary, rehearing of the suppression motions. See Colón-

Torres,

382 F.3d at 90

; Segarra-Rivera, 473 F.3d at 386–87. Such

determinations may include, if necessary, a determination as to

whether the "judgment" of conviction must be "vacated," but we

express no view on those issues at this time. Colón-Torres,

382 F.3d at 78

.17

Because we are not vacating Daniells's § 922(a)(1)(A)

conviction, we conclude that it is prudent also to address his

sentencing challenge, which concerns § 2K2.1(b)(5) of the

Guidelines. That guideline requires a four-level enhancement to

a defendant's total offense level if the "defendant engaged in the

trafficking of firearms." U.S.S.G. § 2K2.1(b)(5).

The source of the dispute is an application note for

§ 2K2.1(b)(5). The application note provides that the enhancement

applies where the "defendant . . . transported, transferred, or

otherwise disposed of two or more firearms to another individual,"

and "knew or had reason to believe that such conduct would result

in the transport, transfer, or disposal of a firearm to an

17To the extent that Daniells suggests that we should go one step further and vacate his § 922(a)(1)(A) conviction if we are persuaded that he was entitled to a hearing on his actual conflict claim, we do not agree. Unless Daniells were to be successful on both the actual conflict claim and on the rehearing of the underlying suppression motion on remand, the evidence introduced at trial would remain unaffected by the relief that we grant today.

- 63 - individual" whose "possession or receipt of the firearm would be

unlawful" or "who intended to use or dispose of the firearm

unlawfully." Id. cmt. n.13(A).

Daniells argued at sentencing, as he does on appeal,

that the "trafficking" enhancement had no application to him

because -- at least given the application note -- it applies only

if the government demonstrates that the defendant transferred two

or more guns to a single recipient. The District Court disagreed,

ruling that the enhancement applies so long as the evidence shows

by a preponderance -- as even Daniells agrees it did in his case

-- that the defendant had sold multiple weapons, even if he sold

only a single weapon to a single person on multiple occasions.

The government accepts that Daniells preserved this

challenge below, such that our review of whether the District Court

erred in interpreting the "legal meaning and scope" of the

guideline is de novo. See United States v. Carrero-Hernández,

643 F.3d 344, 349

(1st Cir. 2011) (quoting United States v. Thompson,

32 F.3d 1, 4

(1st Cir. 1994)). We interpret the guidelines, as

well as the Sentencing Commission's commentary, including

application notes, "using conventional methods of statutory

construction." United States v. Damon,

595 F.3d 395

, 400 n.3 (1st

Cir. 2010); see United States v. Almeida,

710 F.3d 437

, 441 n.3

(1st Cir. 2013) (explaining that "[t]he Sentencing Commission's

commentary, including the application notes, is binding on the

- 64 - courts as long as it does not conflict either with the sentencing

guidelines themselves or with some statutory provision" (quoting

United States v. Carrasco–Mateo,

389 F.3d 239, 244

(1st Cir.

2004))).

As both parties acknowledge, only one circuit -- the

Sixth Circuit -- has decided the question Daniells asks us to

decide, and it has construed the guideline as Daniells contends

that it must be construed. See United States v. Henry,

819 F.3d 856, 871

(6th Cir. 2016) (holding that § 2K2.1(b)(5) applies only

to "defendants who provide multiple firearms to at least one buyer

or other transferee -- i.e., parties engaging in bulk transfers"

and vacating the defendant's sentence as a result). The District

Court "disagree[d] respectfully" with the Sixth Circuit, however.

It did not dispute that the application note had to be given

consideration in construing the guideline. But it concluded that

Henry had put too much "emphasis" on the application note's use of

the word "individual," adding that the word "[t]rafficking itself

suggests more than one customer for the guns."

We do not disagree with the District Court that the word

"trafficking," if considered on its own, would appear to permit a

construction of the guideline that would encompass engaging in

multiple individual guns sales and thus favor the government's

reading. See Traffic, Black's Law Dictionary (11th ed. 2019)

(defining the term "traffic" as either "[c]ommerce; trade; the

- 65 - sale or exchange of such things as merchandise, bills, and money,"

or, " [t]o trade or deal in (goods, esp[ecially] illicit drugs or

other contraband)"); Traffic, Webster's Dictionary,

https://www.merriam-webster.com/dictionary/traffic (defining the

term "traffic" as, among other things, "import and export trade,"

"the business of bartering or buying and selling," or "illegal or

disreputable usually commercial activity"). But the question is

whether, in consequence of the application note, the guideline is

narrower in scope than its text, in a different context, might

suggest. See, e.g., United States v. Paneto,

661 F.3d 709, 711, 717

(1st Cir. 2011) (explaining that an application note may

"clarify" the "scope of [a] phrase" in a guideline so long as the

note is "neither inconsistent with, nor an obviously erroneous

reading of, the guideline"); Stinson v. United States,

508 U.S. 36, 38

(1993) (explaining that "commentary . . . that interprets

or explains a guideline is authoritative unless it violates the

Constitution or a federal statute, or is inconsistent with, or a

plainly erroneous reading of, that guideline").

Daniells asserts that the application note's text --

given its use of the phrase "to another individual" -- plainly

reveals that to be the case, because the text of the application

note refers to the transfer of two or more firearms to a single

individual. In other words, Daniells contends, in consequence of

the application note, the guideline must be construed to require

- 66 - an enhancement only where the defendant engaged in "bulk transfers"

of firearms, just as Henry determined. See

819 F.3d at 871

The government has not suggested, either below or on

appeal, that such a reading of the application note would conflict

with the text of the guideline and so must be rejected for that

reason alone. See Almeida,

710 F.3d at 441

& n.3; Stinson,

508 U.S. at 38

. The government instead contends only that the

application note itself is best read to support its view that the

phrase "trafficking of firearms" is more expansive than Daniells

contends.

The government asserts in that regard that the words

"another individual" in the application note serve only the limited

purpose of indicating that the "transport[], transfer[], or

dispos[al]" of the firearms in question, see § 2K2.1 cmt.

n.13(A)(i), must have been to other people in the general sense

(rather than to one other person). It reasons that, absent that

phrase, the guideline might be read to apply to someone who

transported or disposed of firearms without doing so to "another"

person.

The use of the word "another" indicates, however, that

the noun that follows is intended to be singular. See Another,

Merriam–Webster Online Dictionary, https://www.merriam-

webster.com/dictionary/another (defining the word "another" as

"some other," or "being one more in addition to one or more of the

- 67 - same kind"); Another, Oxford English Dictionary Online,

https://www.oed.com/view/Entry/8102 (defining the word "another"

as "[o]ne more, one further"). And, here, the word "another" is

modifying a word that itself suggests a singular meaning --

"individual." See, e.g., Hertz Corp. v. Friend,

559 U.S. 77, 93

(2010) (noting that when an adjective emphasizes a noun's

singularity, the plain meaning is more likely to incorporate the

singular version of the noun it modifies). Moreover, "another

individual" is used here in a prepositional phrase -- "to another

individual" -- that is describing who must have been on the

receiving end of the defendant's "transfer[], transport, or

dispos[al]" of two or more firearms. See U.S.S.G. § 2K2.1 cmt.

n.13(A) ("Subsection (b)(5) applies . . . if the defendant . . .

transported, transferred or otherwise disposed of two or more

firearms to another individual . . . ." (emphases added)).

The "structure" of the relevant Guidelines provisions

reinforces the textual reasons to favor Daniells's reading. See

Henry,

819 F.3d at 871

. A separate subsection of the same

guideline -- § 2K2.1(b)(1) -- provides for incremental increases

to a defendant's offense level where "the offense involved three

or more firearms." Under the government's reading of the

application note, (b)(5) would apply where the defendant engaged

in multiple individual gun transfers, even though (b)(1) itself

already covers such cases. See id. Thus, we agree with Henry

- 68 - that, when "[r]ead in conjunction with subsection (b)(1)" and in

light of the plain text of the application note, subsection (b)(5)

is best read "to be aimed at defendants who provide multiple

firearms to at least one buyer or other transferee." Id.

The government does attempt to respond to this last point

by asserting that "double counting" is not inherently improper.

See United States v. Zapata,

1 F.3d 46, 47

(1st Cir. 1993). But

the point is not that Daniells's -- and Henry's -- reading of the

application note is better because double-counting is prohibited.

The point is that -- in the context of interpreting the text of

§ 2K2.1(b)(5) and its commentary -- the provision is best given

independent meaning if read as being aimed at "bulk" gun transfers,

because engaging in multiple individual gun transfers is conduct

that would be subject to enhancements based on the total number of

firearms implicated by the defendant's conduct. See U.S.S.G.

§ 2K2.1(b)(1) & cmt. n.5; Henry,

819 F.3d at 871

. Given that such

a reading comports with the least strained reading of the

application note, we conclude that the District Court erred in

applying the four-level § 2K2.1(b)(5) enhancement to Daniells on

the ground that the record showed that he had engaged in multiple

individual gun transfers.

The government does argue that the interpretive error

was harmless, insofar as the error exists. United States v.

Larios,

593 F.3d 82, 89

(1st Cir. 2010) ("We need not remand for

- 69 - resentencing if we conclude, 'on the record as a whole, that the

error was harmless, i.e., that the error did not affect the

district court's selection of the sentence imposed.'" (quoting

Williams v. United States,

503 U.S. 193, 203

(1992))). The

government emphasizes that the trial evidence -- specifically, the

testimony by Copithorne -- supports a finding that Daniells

transferred at least two firearms to a single recipient --

Figueroa. We note as well that the District Court stated during

Daniells's sentencing hearing that, even if it were to adopt the

government's view of the evidence, the enhancement would apply

based on the interpretation pressed by Daniells "as well."

But the government concedes that the District Court did

not find that the evidence showed what the government contended

that the evidence showed. Indeed, the District Court expressly

stated that it was not "opin[ing] one way or the other" on the

issue, and Daniells does contest that the record supports the

government's view of the evidence. Thus, because the evidence

does not compel the conclusion that Daniells transferred two or

more guns to a single individual -- nor does the government contend

as much -- we cannot be sure that the District Court would have in

fact determined that the enhancement should be applied, at least

under a proper understanding of the "trafficking of firearms"

guideline. We therefore cannot affirm the District Court's

sentencing decision on harmless error grounds.

- 70 - VI.

We vacate Daniells's § 922(n) conviction, vacate his

sentence, and remand for further proceedings consistent with the

foregoing opinion.

-Concurring Opinion Follows-

- 71 - LIPEZ, Circuit Judge, concurring. I join the panel's

opinion. I write separately only to emphasize the narrowness and

fact-specificity of the opinion's holding that the district court

erred in denying Daniells's requested instruction to the jury on

the "willfully" element, see

18 U.S.C. § 924

(a)(1)(D), of his

offense under § 922(n).

As my colleagues note, in reviewing a district court's

refusal to give a requested instruction, we first ask whether there

is sufficient evidence to support the proposed instruction. See

United States v. McLellan,

959 F.3d 442, 467

(1st Cir. 2020). If

the evidence can plausibly support the theory of the defense, we

then assess whether the district court's refusal constitutes

reversible error by engaging in a three-pronged inquiry that asks

if the requested instruction was (1) "substantively correct as a

matter of law," (2) "not substantially covered" by the instruction

as given, and (3) "integral to an important point in the case"

such that "omission of the instruction seriously impaired the

defendant's ability to present his defense."

(quoting United

States v. Baird,

712 F.3d 623, 628

(1st Cir. 2013)).

Ordinarily, a defendant who -- like Daniells -- requests

an instruction that, to prove that he "willfully" violated

§ 922(n), the government must prove that he knew he was "under

indictment," could not show that the proffered instruction was

"substantively correct as a matter of law" under the first prong

- 72 - of the McLellan test. Id. (quoting Baird,