United States v. Condron

98 F.4th 1

UNITED STATES, Appellee, v. Christopher N. CONDRON, Defendant, Appellant.

No. 23-1032

United States Court of Appeals, First Circuit

March 28, 2024

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Indira Talwani, U.S. District Judge]

Eamonn R. C. Hart, with whom Brann & Isaacson was on brief, for appellant.

Alexia R. De Vincentis, Assistant United States Attorney, with whom Joshua S. Levy, Acting United States Attorney, was on brief, for appellee.

Before Montecalvo, Thompson, and Rikelman, Circuit Judges.

RIKELMAN, Circuit Judge.

After a fourteen-day trial, a jury convicted Christopher Condron of wire fraud and conspiracy to defraud the United States by obtaining payment for false claims. On appeal, Condron argues that the district court erred in denying his motion for a judgment of acquittal because: (1) there was insufficient evidence as to each count to support his conviction; and (2) the government's argument and evidence at trial constructively amended, or at least prejudicially varied from, one of the wire fraud counts. Additionally, he contends that the district court abused its discretion when it limited his cross-examination of a key government witness. After careful consideration of the trial record, we affirm the verdict and Condron's conviction.

I. BACKGROUND

This case centers on Condron's role in submitting applications to the United States Department of the Treasury ("Treasury") for grant money in connection with purported renewable energy projects. The facts here are complicated, and to put them in context, we begin with an overview of the federal grant program at issue.

A. The Section 1603 Grant Program

In 2009, Congress enacted section 1603 of the American Recovery and Reinvestment Act ("Section 1603") to encourage investments in clean, renewable energy projects. See generally Pub. L. No. 111-5, § 1603, 123 Stat. 115, 364 (2009). Section 1603 provides for cash grants, in lieu of otherwise available tax credits, to entities that "place[d] in service specified energy property" within a certain timeframe, id. § 1603(a), including small wind energy, trash, and open-loop biomass facilities.¹

Treasury contracted with the National Renewable Energy Laboratory ("NREL"), "a government-funded research and development organization that specializes in renewable energy," to review Section 1603 grant applications.² In turn, NREL created and managed an online portal through which grant-seekers could submit an application, upload any supporting documents, and respond to any subsequent requests from NREL seeking additional information.

Under the Section 1603 program, there were two types of applications: (1) a "placed in service" application; and (2) a "placeholder" application, also known as a "start of construction" application. A grant-seeker could submit a placed-in-service application if the property had been "placed in service" at the time of the application, meaning it was "ready and available for its specific use."³ A placeholder application, by contrast, was available for a grant-seeker that had begun construction on a renewable energy project in 2009, 2010, or 2011 that would not "be placed in service until beyond 2011."

When submitting a placed-in-service application, a grant-seeker would submit a commissioning report, which was "[a] report provided by the project engineer, . . . equipment vendor, or an independent third party that certifie[d] that the equipment ha[d] been installed, tested, and [was] ready and capable of being used for its intended purpose." Treasury also required "documentation to support the cost basis claimed for the property," including "a detailed breakdown of all costs included in the basis." The cost basis was generally the amount that the grant-seeker spent on the property, including "installation costs and the cost for freight incurred in construction of the . . . property." If the grant-seeker claimed a cost basis that was more than $500,000, Treasury required that it submit "an independent accountant's certification attesting to the accuracy of all costs claimed as part of the basis of the property."

After reviewing a placed-in-service application, NREL would provide Treasury with a report recommending that the application be approved (for a certain amount) or denied. For those applications that it recommended approval, NREL would assign a grant award that was up to 30 percent of the cost basis of the property. For example, if the cost basis was $100,000, NREL would assign a grant award of up to $30,000. Once NREL recommended that a particular application be approved, Treasury would then initiate payment to the grant-seeker via a wire transfer.

Importantly, placeholder applications, or start-of-construction applications, did not provide an option to request a grant payment. The purpose of a placeholder application was to allow a grant-seeker whose property was not yet complete to later request grant funds once the property was placed in service. A grant-seeker submitting a placeholder application was required to demonstrate via "[p]aid invoices and/or other financial documents . . . that physical work of a significant nature ha[d] begun on the property." Placeholder applications were required to be submitted by October 1, 2012, and only after construction began.

NREL assigned a unique number to each application submitted on its online platform.

B. The Indictment

On August 9, 2017, Condron and Jessica Metivier -- his then-girlfriend and the mother of his children -- were indicted on one count of conspiracy to defraud the United States with respect to claims in violation of 18 U.S.C § 286 (Count One) and three counts of wire fraud in violation of 18 U.S.C. § 1343 (Counts Two - Four).

With respect to the conspiracy charge, the indictment alleged that Condron and Metivier conspired to defraud the United States "by obtaining and aiding to obtain the payment and allowance of false, fictitious, and fraudulent claims for monetary grants under Section 1603." It further alleged that Condron and Metivier hired a Massachusetts-based attorney to submit applications "to Treasury seeking more than $50 million in Section 1603 grants on behalf of [four] companies that the [a]ttorney created for M[etivier]:" Acton Bio Energy, LLC ("ABE"); Concord Nurseries, LLC; Kansas Green Energy, LLC ("KGE"); and Ocean Wave Energy, LLC ("OWE").

To support the wire fraud charges, the indictment alleged that Condron and Metivier submitted or caused to be submitted online to Treasury certain fraudulent information. The alleged wires underlying each count were as follows:

Count

Approximate Date/Time

Wire

2.

September 28, 2012

Section 1603 grant application number 2012E48WE214854 submitted online to Treasury on behalf of OWE for $25,204,770, regarding "small wind energy property."

3.

January 11, 2013

Response, submitted online to Treasury, to a January 7, 2013 request for information from NREL about background and qualifications of Person A.

4.

April 17, 2013

Response, submitted online to Treasury, to a March 27, 2013 request for information from NREL about Person A's role in the OWE wind farm project.

Condron proceeded to trial in September 2021.⁴

C. The Evidence⁵

The trial evidence focused on Condron's role in submitting Section 1603 applications and related information to NREL between 2009 and 2013 for ABE, Concord Nurseries, KGE, and OWE. As we detail below, Condron directed an attorney to create these entities and then submit applications and other documents on behalf of the entities to the Section 1603 program, even though Condron was not listed as the applicant or as a manager or principal on the entities' formation documents.

1. Acton Bio Energy, LLC

In 2009, Condron approached Richard Colman, a Massachusetts attorney and financial planner, about applying to the Section 1603 program. Colman, who had no prior experience with Section 1603, ultimately agreed to help Condron apply for a grant in connection with an open-loop biomass gasification facility.⁶ Colman understood his role to be limited to "fill[ing] out the forms" and submitting them online to Treasury on behalf of the project. He worked on the application (and additional ones that followed) on a contingency fee basis, such that he would be paid if and when Treasury approved the grant.

The first application Condron and Colman worked on together was for a "turnkey operation," which Condron explained to Colman was a project that was fully ready to operate upon sale to the buyer. Condron informed Colman that he wanted to arrange a transaction in which his company, "C2C," would sell and finance a biomass gasifier to an entity created under Metivier's name. Per Condron's instructions, Colman filed a certificate of organization to create ABE and listed Metivier as its manager.

Colman expressed concerns about Metivier "tak[ing] on so much debt" in the transaction, given her limited resources at the time and her lack of knowledge about gasification or biomass technology. He spoke with her about his reservations, but she decided to move forward with the sale. Under the terms of the transaction, "C2C Inc." sold the gasification system to ABE for $2,935,000 and lent approximately $2.7 million to ABE to finance the transaction. Metivier signed a bill of sale (along with Condron) and a promissory note in connection with the transaction.⁷

On December 17, 2009, Colman submitted a Section 1603 application for ABE at Condron's direction. He also submitted several supporting documents, a few of which we describe below.

One document was an independent auditor's report. To certify the project costs listed in the application, Metivier hired Diane Lambert, a CPA with Walsh & Associates, to prepare an independent accountant's report. She supplied Lambert with the relevant information for the report, including a breakdown of the cost amounts, the bill of sale, the promissory note, and invoices. Because Lambert was...