United States Court of Appeals For the First Circuit, No. 22-1518 (October 13, 2023)

Summary

United States v. Elijah Majak Buoi, No. 22-1518, an opinion of the U.S. Court of Appeals for the First Circuit issued October 13, 2023 by Circuit Judge Gelpí. Buoi applied for multiple Paycheck Protection Program loans for Sosuda Tech LLC, a startup registered May 1, 2019 that had no employees in 2019 or 2020. He sought $9,400,000 from Bank of America on April 21, 2020, claiming 353 employees and $3,000,000 in average monthly payroll; a second Bank of America application claimed 95 employees and $800,000 monthly payroll, and a Lendio application sought $1,900,000 claiming 18 employees. A jury convicted him on four counts of wire fraud under 18 U.S.C. § 1343 and one of false statements to a financial institution under § 1014. The court finds the evidence of intent sufficient, dismisses his ineffective assistance claims without prejudice, and affirms.

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United States Court of Appeals
For the First Circuit

No. 22-1518

UNITED STATES,

Appellee,

ELIJAH MAJAK BUOI,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor, IV, U.S. District Judge]

Before

Gelpí, Lynch, and Thompson,
Circuit Judges.

Scott T. Garosshen, with whom Seth B. Orkand, Mallori D.
Thompson, and Robinson & Cole, LLP were on brief, for appellant.
Javier A. Sinha, Attorney, U.S. Department of Justice, with
whom Rachael S. Rollins, United States Attorney, Donald Lockhart,
Assistant United States Attorney, Mackenzie Queenin, Assistant
United States Attorney, Della Sentilles, Trial Attorney, U.S.
Department of Justice, Kenneth A. Polite, Jr., Assistant Attorney
General, and Lisa H. Miller, Deputy Assistant Attorney General
were on brief, for appellee.

October 13, 2023
GELPÍ, Circuit Judge. Defendant-Appellant Elijah Majak

Buoi ("Buoi") applied for multiple Paycheck Protection Program

("PPP") loans for his startup company, Sosuda Tech LLC ("Sosuda"),

at the beginning of the COVID-19 pandemic. The Government

investigated and charged Buoi for devising a scheme to defraud and

obtain PPP funds by filing fraudulent PPP loan applications, and

he was ultimately indicted on four counts of wire fraud, in

violation of 18 U.S.C. § 1343, and one count of making false

statements to a financial institution, in violation of 18 U.S.C.

§ 1014. At trial, Buoi moved for judgment of acquittal at the

close of the Government's case on the grounds that the Government

provided insufficient evidence to prove beyond a reasonable doubt

that he intended to defraud or influence a financial institution.

The district court denied the motion. Buoi renewed the motion at

the close of his case, resulting in another denial. Buoi was

subsequently convicted on all five counts. Boui appeals the

conviction, challenging the sufficiency of the evidence presented

as to intent, in addition to two ineffective assistance of counsel

claims. We affirm the district court and dismiss Buoi's

ineffective assistance of counsel claims without prejudice. See

United States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993).

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I. Background

A. Facts

The facts that follow are derived from the testimony and

exhibits presented at trial. Because there is a claim of

insufficient evidence, "we recount the facts in the light most

favorable to the verdict." United States v. Paz-Alvarez, 799 F.3d

12, 18 (1st Cir. 2015).

Buoi registered his company, Sosuda, with the

Massachusetts Secretary of State on May 1, 2019, about a year

before the COVID-19 pandemic.1 Sosuda was a technology company

designed to serve communities with limited technological

resources. Buoi, on behalf of Sosuda, did not file tax returns

for 2019 or 2020, and the company was not registered with the

Massachusetts Department of Unemployment Assistance ("DUA"),

meaning that it was not paying unemployment taxes. Sosuda did not

have employees in 2019 or 2020.

In March 2020, COVID-19 was declared a pandemic.

Congress responded by passing the Coronavirus Aid, Relief, and

Economic Security ("CARES") Act, 15 U.S.C. §§ 9001-9141, to aid

Americans negatively impacted by the COVID-19 pandemic. As a part

of the act, the PPP was initiated to provide small businesses with

financial assistance to keep their employees on the payroll and to

1 Sosudawas originally registered as "South Sudanese American
Technologies, LLC," but was renamed "Sosuda" on May 15, 2019.

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cover specified expenses. CARES Act, ch. 116, 134 Stat. 286,

286-94 (2020) (codified as amended at 15 U.S.C. § 636(a)(36)).

Under the program, PPP loans were issued by private lenders but

were guaranteed by the Small Business Administration ("SBA") in

the event that a borrower defaulted.

To obtain a PPP loan, a business was required to submit

an application certifying the business's average monthly payroll

expenses for the prior year, the number of employees, and whether

the United States was the principal place of residence for all

employees on the payroll. If the business did not have prior

payroll expenses or existing employees, the business did not

qualify for a PPP loan. By signing the application, the business's

authorized representative certified that any loan funds "[would]

be used to maintain workers and maintain payroll or make mortgage

interest payments, lease payments, and utility payments" and that

they "unders[tood] that if the funds [were] knowingly used for

unauthorized purposes, the federal government [could] hold [them]

legally liable, such as for charges of fraud." The applicant must

have further certified that the information provided was "true and

accurate" and that "making a false statement to obtain [the loan]

[wa]s punishable under the law."

Additional documents that were often filed with the PPP

application included the IRS Form 940 and IRS Form 941. An IRS

Form 940 is an annual tax return document filed by a company

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pursuant to the Federal Unemployment Tax Act, showing the total

compensation paid to its employees. An IRS Form 941 is a quarterly

tax return document filed to report Social Security taxes, income

taxes, and Medicare taxes withheld from employee paychecks.

On April 21, 2020, Buoi attended a virtual PPP loan

seminar and, according to his handwritten notes, the PPP was

created to "help[] business[es] keep their workforce employed

during the Coronavirus COVID-19 crisis" and "to provide a direct

incentive for small businesses to help to keep their workers on

the payroll." Between April 2020 and June 2020, Buoi applied for

six different PPP loans with four lenders. There were multiple

inconsistencies in the loan applications and documentation

submitted by Buoi, taken in turn below.

Bank of America PPP Loan Applications

Buoi submitted a PPP loan application to Bank of America

("BOA") on April 21, 2020, seeking $9,400,000, claiming Sosuda had

353 employees, an average monthly payroll of $3,000,000, and

certifying the United States as the principal place of residence

for his employees. Buoi also submitted Excel sheets as payroll

documentation, justifying the $3,000,000 in payroll based on the

expenses for the last seven months of 2019 and for two weeks in

February 2020. BOA did not credit these Excel sheets, so tax forms

were requested. Buoi told the BOA employee that he had very little

payroll in 2019 and did not file 2019 taxes. The BOA employee

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told Buoi that these forms were required for the loan process to

continue. After this communication, Buoi submitted an IRS Form

941 with what he claims are projections, stating that Sosuda had

353 employees and paid $9,498,987 in wages, tips, and other

compensation during that period. This form was backdated to

April 30, 2020. In addition, Buoi submitted an IRS Form 940

stating Sosuda made $34,800,000 in payments to employees in 2019

and had no employees in any other state but Massachusetts. This

form was backdated to January 31, 2020. BOA denied the PPP loan

application.

Buoi submitted a second PPP loan application to BOA on

May 29, 2020, claiming 95 employees and $800,000 monthly payroll.

The IRS Form 941 submitted with this application claimed 96

employees with $2,400,000 in wages, and the IRS Form 940 submitted

claimed $9,600,000 paid to employees. BOA denied this loan

application as well.

Lendio PPP Loan Applications

Buoi applied to Lendio for a PPP loan on May 21, 2020,

seeking $1,900,000. Buoi claimed that he had 18 employees and an

average monthly payroll of $150,000. Buoi certified in this

application that Sosuda's employees' principal place of residence

was the United States, Sosuda in fact had employees, the funds

would be used to retain workers, and all of the information

provided was true and accurate. The IRS Form 940 Buoi submitted

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with this application stated that Sosuda paid its employees

$1,800,000, and the IRS Form 941 stated Sosuda had 18 employees in

the first quarter of 2020 and paid them $450,000. Both forms were

backdated, as they were in the BOA application. Buoi also provided

Excel sheet payroll documents, like the ones included in his BOA

application, covering the same time period, albeit with different

numbers. Lendio denied this application.

Buoi submitted a second application to Lendio on May 29,

2020, claiming to have 95 employees and an average monthly payroll

of $800,000. During this time, Buoi had a list of potential

employees curated by LinkedIn and Indeed (which are

employment-focused websites) who had not actually started working

for Sosuda. Lendio requested an employee list in addition to

Buoi's PPP loan application and 2019 tax return documents. In

response to Lendio's request, Buoi sent a list of approximately

100 employees, including the date they were hired, their full-time

status, and taxes deducted with net earnings. The list of

employees contained some entries with missing last names and some

of the listed employees were colleges or universities, like Penn

State and Wilson College. There were 35 examples of crossover

between the list of potential employees Buoi wished to hire and

the list Buoi provided to Lendio in support of his PPP loan

application claiming that said employees were on payroll. It is

unclear from the record whether this application was accepted.

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Fundbox PPP Loan Application

Buoi applied for a PPP loan from Fundbox on June 7, 2020,

certifying that the funds sought were going to be used to retain

employees already on the payroll and that the information provided

in the application was true and accurate. Buoi claimed that Sosuda

had 96 employees and an $800,000 average monthly payroll.

Accompanying this application were IRS Form 940, claiming

$9,600,000 paid to employees, and IRS Form 941, claiming 96

employees and $2,400,000 in wages, tips, and compensation paid,

both backdated the same as before. Fundbox approved this loan and

transferred $2,000,000 to Sosuda's account.

Newtek PPP Loan Application

Buoi then applied for a PPP loan with Newtek on June 9,

2020, using the same figures and dates as the Fundbox

application -- 96 employees and $800,000 average monthly

payroll -- and the same tax documents as the Fundbox

application -- IRS Form 940, claiming $9,600,000 paid to

employees, and IRS Form 941, claiming 96 employees and $2,400,000

in wages, tips, and compensation paid. This loan application was

denied.

Buoi's Use of the PPP Funds

The PPP funds provided through the PPP program were to

be used to maintain payroll for employees who had their primary

residence in the United States, and for other specific expenses,

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like rent and mortgage payments. Buoi, however, withdrew $7,200

in cash and wired $20,000 to India, with the word "payroll" in the

memo line, out of the $2,000,000 in PPP funds from Fundbox. The

remainder of the funds were seized by the Government following its

investigation.

B. Procedural History

Following a Government investigation, a grand jury

indicted Buoi on four counts of wire fraud, in violation of 18

U.S.C. § 1343, and one count of making false statements to a

financial institution, in violation of 18 U.S.C. § 1014. The four

counts of wire fraud were for the PPP loan applications Buoi

submitted to Lendio on May 21, 2020, Fundbox on June 7, 2020, and

Newtek on June 9, 2020, as well as the $2,000,000 transfer from

Fundbox to Buoi on June 15, 2020. The false-statement count

stemmed from the PPP loan application Buoi submitted to BOA.

Buoi's three-day jury trial commenced on February 22,

2022. The Government presented the evidence recounted above at

trial. Once the Government rested, Buoi moved for a directed

verdict of acquittal claiming that the Government had not proven

the intent element of wire fraud or influencing a financial

institution. Buoi argued that his admission to BOA that he had no

employees and the fact that he was asking for clarification on the

PPP loan application process shows that he was simply mistaken

about the program's requirements when he submitted the documents.

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The court denied the motion. Buoi then testified in his own

defense. When the defense rested, Buoi's counsel renewed the

motion for a directed verdict of acquittal, claiming Buoi's

testimony strengthened the position that Buoi was misled and that

the submission of his application and documents was a good faith

mistake. The district court denied the motion stating that the

issue was a question for the jury and that there was sufficient

evidence to sustain a conviction.

The jury instructions on intent and good faith were

discussed by the parties and the court at great length. Both

parties proposed instructions, and, eventually, the court decided

to instruct the jury, using the Government's proposed instruction,

that "[i]f the defendant acted in good faith, he cannot be guilty

of the crime" and "[t]he burden to prove intent, as with all other

elements of the crime, rests with the government." The jury was

so instructed and there was no objection by Buoi as to the good

faith instruction. Given the concerns about a juror's schedule

and court closure due to an impending snowstorm, the jury was also

told that it could "take as much time or as little time as you

think is appropriate to make this decision. None of you should

feel any pressure whatsoever to make a decision today or at any

other time." The jury deliberated for approximately four hours

and returned a guilty verdict on all five counts. At the

conclusion of the verdict, the court asked if Buoi would like to

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poll the jury, which his counsel declined. The district court

ultimately sentenced Buoi to thirty-nine months of imprisonment to

be served concurrently on each count followed by three years of

supervised release. This timely appeal as to his conviction

followed.

II. Discussion

Buoi raises the following arguments on appeal:

(1) insufficient evidence of his intent to defraud,

(2) insufficient evidence of his intent to influence a financial

institution, (3) ineffective assistance of counsel for requesting

an undermining jury instruction, and (4) ineffective assistance of

counsel for failing to poll the jury. The Government contends

that there was sufficient evidence for a rational jury to convict

Buoi and that his ineffective assistance of counsel claims are not

cognizable on direct appeal. We conclude that sufficient evidence

supported Buoi's convictions, affirming the district court, but

decline to reach the merits of the ineffective assistance of

counsel claims, for the reasons discussed below.

A. Insufficient Evidence Claims

Standard of Review

A defendant may move for and obtain a judgment of

acquittal based on insufficient evidence under Federal Rule of

Criminal Procedure 29 ("Rule 29"). See Fed. R. Crim. P. 29. Buoi

preserved for appeal the challenge to the sufficiency of evidence

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by moving both at the close of the Government's case and his own.

See United States v. Stein, 233 F.3d 6, 20 (1st Cir. 2000). We

review a preserved Rule 29 claim de novo. United States v.

Millán-Machuca, 991 F.3d 7, 17 (1st Cir. 2021) (citing United

States v. Santos-Soto, 799 F.3d 49, 56 (1st Cir. 2015)).

Challenging the sufficiency of the evidence is a

"difficult task." United States v. Martin, 228 F.3d 1, 10 (1st

Cir. 2000). As explained above, the evidence is viewed in the

light most favorable to the verdict, Paz-Alvarez, 799 F.3d at 18,

and we focus our inquiry on "whether any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt." United States v. Bailey, 405 F.3d 102, 111

(1st Cir. 2005) (citation and internal quotation marks omitted).

"The court must credit both direct and circumstantial evidence,

without evaluating or speculating on the weight the jury has given

different pieces of evidence, and without making its own judgments

as to credibility." Martin, 228 F.3d at 10. The jury may draw

conclusions from the totality of the evidence presented, as opposed

to evaluating pieces of evidence individually. Id. Our inquiry

is not "to determine if alternate interpretations of the evidence

were available," only whether "the evidence was sufficient for the

jury to reach a reasonable interpretation" to convict. Id. at 18.

"[W]e will reverse only if the verdict is irrational." United

States v. Connolly, 341 F.3d 16, 22 (1st Cir. 2003).

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1. Wire Fraud Convictions

The jury found Buoi guilty on all four counts of wire

fraud, in violation of 18 U.S.C. § 1343. Wire fraud has three

elements: "1) a scheme to defraud by means of false pretenses,

2) the defendant's knowing and willful participation in the scheme

with the intent to defraud, and 3) the use of interstate wire

communications in furtherance of the scheme." United States v.

Cassiere, 4 F.3d 1009, 1011 (1st Cir. 1993) (citation omitted).

Buoi takes issue only with the second element, arguing that no

reasonable jury could have found intent to defraud beyond a

reasonable doubt because he truthfully told BOA that he had little

payroll and no tax forms, and because the evidence relied upon by

the Government was speculative and insufficient. Buoi's arguments

are, in effect, an attempt to convince us that the jury should

have made different inferences based on the evidence presented.

We disagree, taking each of his arguments in turn.

Buoi, first, mistakenly attempts to argue that his

statements to BOA undermine the evidence of intent needed to uphold

the four counts of wire fraud convictions. But those convictions

were not based on his dealings with BOA. And there is no evidence

that the other lenders knew of his statements to that bank.

Furthermore, to the extent Buoi argues that the jury could have

inferred from these statements to BOA that he did not intend to

defraud the other lenders, the jury was entitled to come to

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whatever rational conclusion it saw fit based on the evidence

presented and it is not our role to second-guess its conclusion.

See United States v. Soler-Montalvo, 44 F.4th 1, 8 (1st Cir. 2022).

Next, Buoi argues that the evidence presented as to his

alleged intent to defraud was insufficient. Specifically, he

argues that the evidence presented was entirely consistent with

the theory he presented at trial: that he submitted documents "as

a projection of how he intended to use the payroll, the proceeds

from the loan." To that end, he describes how each, individual

piece of the Government's evidence as to intent is consistent with

his theory and inconsistent with an intent to defraud. We reject

these arguments. See United States v. Jimenez-Perez, 869 F.2d 9,

11 (1st Cir. 1989) (noting that the Government need not "'preclude

every reasonable hypothesis inconsistent with guilt' in order to

sustain a conviction" (quoting United States v. Guerrero-Guerrero,

776 F.2d 1071, 1075 (1st Cir. 1985))).

As an initial matter, our task is to "view[] the facts

as a whole, not in splendid isolation." Webster v. Gray, 39 F.4th

27, 38 (1st Cir. 2022) (citations omitted). "[W]e do not view

each piece of evidence separately, re-weigh the evidence, or

second-guess the jury's credibility calls." United States v.

Seary-Colón, 997 F.3d 1, 12 (1st Cir. 2021) (citations omitted).

Viewing the evidence, accordingly, as a whole, there was abundant

evidence from which a jury could easily conclude Buoi knowingly

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and intentionally lied to the lenders: his numerous false

statements in the applications and supporting documents; his

giving different figures to different lenders which he said covered

the same periods; his failure to file with the IRS his "tax forms"

and his backdating these forms to make it appear to lenders the

forms had been timely filed; his creation and use of these false

"tax forms" to mislead lenders; and his improper use for personal

purposes of the PPP funds he obtained through his deceit, all

reinforcing his wrongful intent. We need not detail the

overwhelming evidence of guilt any further.

Relatedly, Buoi makes three additional arguments in

support of his claim that there was insufficient evidence of his

intent to defraud, the first being that he called BOA with

questions, which supposedly undermines a finding of intent to

defraud. This argument fails because (again) the wire fraud

charges pertain to the other lenders, not BOA. Even if the

argument pertained to other lenders, as stated above, the

applications themselves, and the seminar Buoi attended, made it

clear what qualified a business for the loan, permitting a jury to

conclude he understood he was not qualified despite his testimony

to the contrary.

Second, Buoi argues that there was scant evidence of his

linguistic or legal proficiency, thus undermining his intent to

defraud. However, there was evidence presented at trial that Buoi

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had a Master's of Science Degree in Innovation and Technology from

the University of Massachusetts Lowell and selected English as his

preferred language for the PPP loan applications. The jury also

observed Buoi's proficiency in English when he testified in his

own defense. This is another attempt to characterize the evidence

in Buoi's favor, when it is obvious that the jury made the opposite

inference. See Soler-Montalvo, 44 F.4th at 8. The jury was

permitted to conclude that, because Buoi had an advanced degree

from a United States university and indicated English to be his

preferred language, he was able to read and understand the

applications with the PPP program requirements and attestations he

made. Therefore, he intended to defraud.

Lastly, Buoi argues that the Government's reliance on

his defensiveness on the stand does not demonstrate an intent to

defraud. Even crediting Buoi's claim, we fail to see the

significance of it, given that the Government presented ample other

evidence demonstrating his intent to defraud.

Ultimately, the various claims Buoi makes, as addressed

above, are an attempt to argue that individual pieces of evidence,

viewed through his own interpretation, undermine the jury's

finding that he intended to defraud. Having reviewed the trial

record as a whole, however, we easily conclude that there was

sufficient evidence of Buoi's intent to defraud for his wire fraud

convictions.

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2. False Statement To A Financial Institution Conviction

The jury also found Buoi guilty of making a false

statement to a financial institution, in violation of 18 U.S.C.

§ 1014. Proving a false statement to a financial institution

requires three elements to be met: "(i) the defendant made a false

statement to a bank; (ii) the defendant acted knowingly; and

(iii) the false statement was made for the purpose of influencing

the bank's actions on the loan." United States v. Tierney, 266

F.3d 37, 40 (1st Cir. 2001) (citation omitted). It is "unlawful

to 'knowingly make[] any false statement or report . . . for the

purpose of influencing in any way the action of . . . any

institution the accounts of which are insured by the Federal

Deposit Insurance Corporation.'" United States v. Graham, 146

F.3d 6, 10 (1st Cir. 1998) (alteration and second omission in

original) (quoting 18 U.S.C. § 1014). "'[F]or the purpose of

influencing'" defines the required intent for such a claim. United

States v. Norberg, 612 F.2d 1, 5 (1st Cir. 1979) (quoting United

States v. Sheehy, 541 F.2d 123, 127 (1st Cir. 1976)). Buoi argues

that no reasonable jury could find that he knowingly made false

statements with the intent to influence a financial institution

because he truthfully told BOA that he had little payroll and did

not file taxes, and thus he had no tax forms. We again disagree.

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The evidence presented at trial was sufficient for a

reasonable jury to conclude that Buoi had the requisite intent to

influence a financial institution. Buoi's main argument is that:

[N]o jury reasonably could conclude that the
false statements within Forms 940 and 941 were
intended to influence Bank of America, given
Buoi's insistence throughout the Bank of
America application process that he had no
such information or documents . . . [and]
sought to prevent any influence by emailing
and calling Bank of America to explain his
employee and payroll situation.

However, this argument lacks merit because a bank's "awareness of

the fraud is not relevant." United States v. Behenna, No. 94-1571,

1995 WL 3731, at *4 (1st Cir. Jan. 5, 1995) (per curiam)

(unpublished table decision); see also United States v. Kellet,

No. 94-1920, 1995 WL 449640, at *2 (1st Cir. July 31, 1995) (per

curiam) (unpublished table decision) (explaining that bank's

awareness of fraud is not relevant because said awareness is not

inconsistent with defendant's fraudulent intent (citation

omitted)). Therefore, the jury could reasonably conclude that

Buoi intended to influence BOA even if he was unlikely to succeed.

There were also additional BOA employees involved in processing

PPP loan applications -- as evidenced by his application being

forwarded to another BOA employee -- who were potentially unaware

of the statements that Buoi had made to the one employee that he

worked with directly. Because "certain decision-makers in the

bank still remained to be influenced," the jury was justified in

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finding that the statements made were for the purpose of

influencing BOA. Sheehy, 541 F.2d at 128 (citation and internal

quotation marks omitted).

In addition, there were other documents provided to BOA,

besides the tax forms, that contained false information. Buoi

submitted the PPP loan application and the fabricated payroll

processing sheets before he was asked to provide the tax forms.

This evidence lends support to the jury's finding that Buoi

intended to provide false statements in an attempt to influence

BOA to approve his PPP loan application, as it was done before he

admitted to BOA that he had very little payroll and no tax

documentation. Buoi also testified that he did not have the intent

to mislead the bank in its lending decisions. As noted previously,

it is not our job, but the jury's, to determine which witnesses to

credit and which to discredit. See Soler-Montalvo, 44 F.4th at 8.

These facts, coupled with Buoi's admission that he submitted the

tax forms in order to obtain his PPP loan and all of the evidence

supporting his intent to defraud, were enough for the jury to

conclude that he intended to influence BOA.

B. Ineffective Assistance of Counsel Claim

Standard of Review

Lastly, Buoi claims ineffective assistance of counsel

based on two reasons: (1) his counsel requesting a jury instruction

that focused the jury away from specific intent language and

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instead on good faith language, and (2) his counsel's failure to

poll the jury. An ineffective assistance of counsel claim

typically cannot be raised for the first time on direct review as

there is no record from the lower court to reference. See Mala,

7 F.3d at 1063. Ineffective assistance of counsel claims are

inherently fact dependent and require insight into counsel's

decision making. See United States v. Staveley, 43 F.4th 9, 17

(1st Cir. 2022) (explaining reliance on record for ineffective

assistance of counsel claims). "If the alleged error is one of

commission, the record may reflect the action taken by counsel but

not the reasons for it. The appellate court may have no way of

knowing whether a seemingly unusual or misguided action by counsel

had a sound strategic motive" or was the best alternative

available. Massaro v. United States, 538 U.S. 500, 505 (2003).

Where there is no additional development of fact, we may not be

able to determine if there was prejudicial error. See id. As

such, an ineffective assistance of counsel claim that is raised

for the first time on appeal should typically be addressed through

a collateral proceeding under 28 U.S.C. § 2255. Staveley, 43 F.4th

at 19; see Massaro, 538 U.S. at 504 ("[I]n most cases a motion

brought under § 2255 is preferable to direct appeal for deciding

claims of ineffective assistance.").

In special, limited circumstances, however, "where the

critical facts are not genuinely in dispute and the record is

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sufficiently developed to allow reasoned consideration of an

ineffective assistance claim, an appellate court may dispense with

the usual praxis and determine the merits of such a contention on

direct appeal." United States v. Natanel, 938 F.2d 302, 309 (1st

Cir. 1991). On appeal, it is "strongly presumed" that counsel has

"'rendered adequate assistance and made all significant decisions

in the exercise of reasonable professional judgment' . . . and

that the burden to 'show that counsel's performance was deficient'

rests squarely on the defendant." Burt v. Titlow, 571 U.S. 12,

22-23 (2013) (quoting Strickland v. Washington, 466 U.S. 668,

687-90 (1984)).

Here, Buoi's claims are not those in which "critical

facts are not genuinely in dispute and the record is sufficiently

developed." Natanel, 938 F.2d at 309. Buoi claims that the record

is adequately developed for us to reach the merits of his

ineffective assistance claims. As to his instructional claim,

Buoi argues that there is an adequate record because there is a

record of which jury instructions were requested, which were not

requested, and which were given. As to his polling claim, Buoi

argues that there is an adequate record regarding counsel's

decision not to poll the jury because the trial transcript reflects

that the jury sent a question during deliberation, the

circumstances surrounding a juror having to leave early and an

impending snowstorm closing the court for the remainder of the

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week, and the fact that defense counsel was asked if they wanted

to poll the jury. However, we conclude, in accordance with our

precedent's guidance, that there is no adequate record with which

to determine the effectiveness of counsel's decisions. See

Staveley, 43 F.4th at 17 ("There is little in the record to explain

'why counsel acted as he did.'" (quoting United States v.

Torres-Rosario, 447 F.3d 61, 65 (1st Cir. 2006) (emphasis in

original))). Without further fact development, there is no way to

determine why counsel made their decisions at trial and a

collateral proceeding is the appropriate place to explore those

necessary additional facts.2 See Martinez v. Ryan, 566 U.S. 1, 13

(2012) ("Direct appeals, without evidentiary hearings, may not be

as effective as other proceedings for developing the factual basis

for the claim."). We therefore decline to reach the merits of

Buoi's ineffective assistance of counsel claims and dismiss them

without prejudice.

Insofar as Buoi argues that counsel's thought process is
2

irrelevant because no defensible rationale exists for his actions,
that argument only reinforces our conclusion. The only support
Buoi cites for the proposition that there was no defensible
rationale for counsel's actions is his own understanding of what
competent counsel would have done in that scenario. But that is
hardly the proper benchmark by which we measure ineffective
assistance of counsel. To be sure, Buoi's trial counsel may have
had legitimate reasons for his actions, which are simply unclear
from the record. Any argument that trial counsel did not have a
defensible rationale for his actions is, at bottom, speculative
and improper for review on appeal at this moment.

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III. Conclusion

Because we conclude that there was sufficient evidence

presented for a reasonable jury to find intent to defraud and

intent to influence beyond a reasonable doubt and because we

dismiss Buoi's ineffective assistance of counsel claims as

improper for review on direct appeal, Buoi's convictions are

Affirmed.

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