USA v. Boylan - Criminal Case Opinion

FOR PUBLICAT ION UNITE D STATES COURT OF APPE ALS FOR THE NI NTH CIR CUIT UNITED STATES OF AMER ICA, Plaintiff - Appellee, v. JERRY NEHL B OYLAN, Defendant - Appellant. No s. 24-3077 24-6045 D.C. No. 2:22- cr -00482- GW -1 OPINION Appeal f rom the United States Distr ict Court for the Ce ntral Distric t of California George H. Wu, District Judge, Presiding Argued and Submitted December 2, 2025 Pasaden a, Calif orni a Filed March 3, 2026 Before: Consuelo M. Callahan, John B. Owens, and Lucy H. Koh, Circuit Judges. Opinion by Judge Owens; Concurrence by Judge Koh

2 USA V. B OYLAN SUMMARY * Criminal Law The panel aff irmed the conviction by jury trial of Jerry Boylan, the former captain of the M.V. Conception, for seaman’s manslaughter under 18 U.S.C. § 1115, arising from a fire onboard that killed thirty-four people. Boylan argued that the distric t court’s jury instruction on § 1115 misstated the law, as it provided that guilt could follow if Boylan “engaged in misconduct and/or acted with gross negligence.” According to Boylan, the term “miscondu ct” permitte d the jur y to convict h im of something less that gross negligence, contrary to what § 1115 requires. Agreeing with the Fifth and Eleventh Circuits, the panel held that § 1115 doe s not require gross negligence, but merely n egligen ce. The panel concluded that, to t he extent Boylan argued there was still error because the instruction included the term “misconduct,” a ny error was harmless because the jury instructions explicitly cautioned against conviction based on a lower standard than negligence; in framing the cas e, the distric t court repeatedly instructed the jury that gross negligence was the required standa rd and the government never argued that mere misconduct was sufficient for conviction; and the overwhe lming evidence against Boylan established that the jury would have found him guilty absent the error. Concurring, Judge Koh wrote separately to disagree with the majority opinion’s reliance on the distri ct judge’s * This s ummary consti tutes no par t of the opi nion of the c ourt. It ha s been pre pared by c ourt staff for the convenie nce of t he reader.

USA V. B OYLAN 3 framing of the case and the prosecution’s closing arguments to find harmless error in the jury instru ctions’ use of “misco nduct” t o define t he crim e. As to t hese ch allenged jury instructions, Judge Koh would find ha rmless error solely based on the overwhe lming evi dence ag ains t Boylan. The panel addre ssed other issues in a concurrently filed memorandum disposition. COUNSEL Alexander P. Robbins (argued), Assistant United States Attorney, Acting Chief, Criminal App eals Section; Matthe w O'Brien and Juan M. Rodriguez, Attorneys; Mark A. Williams an d Brian R. F aerstein, Assista nt United State s Attorneys; Christina T. Shay, Assist ant Unit ed St ates Attorney, Chief, Criminal D ivision; Bilal A. Essayli, U nited States Attor ney; Office of the United States A ttorney, United States Department of Justice, Los Ange les, California; for Plaintiff - Appellee. Hunter H aney (argued), Depu ty Fed eral P ublic Defend er; Cuauht emoc Orteg a, Fed eral Pu blic Def ender; O ffi ce of the Federal Public Defender, Los Angeles, California, for Defend ant -Appellant.

4 USA V. B OYLAN OPINION OWENS, Circuit Judge: Jerry Boylan, the former captain of the M.V. Conception, appeals from his conviction for se aman’s manslaughter under 18 U.S.C. § 1115, arising from a fire onboard that killed thirty - four people. Boylan challenges, among other matters, the jury instructions’ culpability requirement under § 1115. 1 We have jurisdiction under 28 U.S.C. § 1291, and we affir m. I. BACKGRO UND A. Th e Conception On August 31, 2019, the Conception — with Cap tain Boylan, five crew member s, and thirty - three pas seng ers — left port for three days of scuba diving near Santa Cruz Island, part of the Channel Islands off the coast of Santa Barbara, C aliforn ia. T he Conception was a sevent y - five - foot dive boat with three decks: a lower deck with passenger bunks, a main deck with a galley and dining area, and an upper deck with the wheelhouse and crew bunks. One stairway connected the upper deck with the main deck, with another in the galley betw een the main and low er decks. The lower deck bunk room al so had an emergen cy esc ape hatch to the m ain deck g alley, but it was difficult to locate witho ut previous knowledge of its existence. While Captain Boylan had more than thirty years’ exp erien ce, his fi ve crew 1 Boylan al so chall enges the j ury inst ructions’ c ausation requir ement and the admission of certain experts ’ testimony. We address these claims in a concur rently fil ed memor andum dispos ition, i n which w e affirm.

USA V. B OYLAN 5 members h ad little, ran ging from a lmost two ye ars at sea to slightly more than a month. Fires pose extreme dangers for ships, and the Conception had multiple fire suppression components: a publi c add ress system audible to everyone on board; six fire extinguishers throughout the ship; a fi re axe on t he upp er deck; and two heavy - duty firefighting stations on t he main deck, each with a fifty - foot fi re hose that could draw water from the ocean. Federal regulations alert captains that they sh ould have roving patrols at night to detect fires onboard, 46 C.F.R. § 185.410, and should train crew on be st practices if a fire breaks out, id. § 185.524. The Conception ’s “C ertificat e of Inspection”— issued by the United States Coast Guard — mandates that “[a] m ember o f the v essel ’s crew shal l be designated by the master as a roving patrol at all times. . . when the passenger’s bunks are occupied.” Despite the obvious dangers that fire s pose on ships, Boylan never trained his crew on what to do if one broke o ut. When a crew mem ber ask ed Boylan when they could discuss safety procedures covered in his employee orientation packet, Boylan “chuckled” and responded with words to the effect of: “When we get to it. ” B. Th e Fire On the early morning of September 2, Boylan an d four crew members slept on the main deck, w hile thirty - three passeng ers and on e crew m ember, Alexand ra Kurt z, were in their bunks below deck. Although no one was assigned to be a roving patrol to detect fires — despite the regulation requiring otherwise — one crew m ember happ en ed to be awake that morning to clean and prepare for the next day. Shortly after that crew member settled into bed, he heard noises from the main deck. He left his bunk to investigate,

6 USA V. B OYLAN saw an ember glow f rom the back of the boat, and yelled “Fire, Fire!” 2 He woke Boylan and the other crew members up top and tried to combat the f ire, but his lack of training led him to unknowingly pass by the fir efighting station twice. As his untrained cr ew scrambled around the vessel in vain to stop the fire, Boylan remained in the wheelhouse. He managed to call the Coast Guar d, but never used the public addre ss system to warn the thirty - four people below deck about the fire or instruct them how to escape through the emergen cy hatch. He never pas sed the fir e ax e or extinguisher to the crew, nor made a ny personal effo rt to reach the crew an d pas seng ers below. O ther than a “five - second little huddle up, ” Boylan never instructed his cr ew to use the fire suppression equipment on board. Instead, he ordered his crew to abandon ship, and jumped overboard. While the crew followed Boyl an overboard, one of them swam back to the Conce ption and tried to activa te the fire hose, but could not. That crew membe r then l owered the skiff into the water, enablin g Boylan a nd the four crew members to depart to safety. The thirty - four people trapped below deck — Carol Diana Adamic, Juha - Pekka Ah opelt o, Neal Gu stav B altz, Patrici a Ann Beitzinger, Vaidehi Devi Campbell Williams, Kendra Moore Chan, Raymond Scott Chan, Adrian Dani elle Dahood- Fritz, Sanjeeri Satish Deopujari, Justin Carroll Dignam, Be renice Felipe, Lisa A nn Fiedler, Kristina Olin e 2 Although not part of the trial record, t he National Transport ati on Safety Board concl uded that the fire l ikely a rose from a c ombinati on of lit hium batteries, f aulty wirin g, sm o king materials, and plastic t rash cans. National Transportation Safety Board, Marine Accident R eport: Fire Aboard Sm all Pass enger Ves sel Conc eption (Oct. 20, 202 0), at 60 – 61.

USA V. B OYLAN 7 Finstad, Andrew Aaron Fritz, Daniel Garcia, Marybeth Guiney, Yuko Hatano, Yulia Krashennaya, Alexandra Haley Kurtz, Xiang Lin, Charles Spence r McIlvain, Caroline Annette McLaughlin, Kaustubh Nirmal, Ange la Rose Solano Quitasol, EvanMichel Solano Quitasol, Michael Storm Quitasol, Nicole Storm Solano Qu itasol, Steven John Salika, Tia Nicole Adamic Salika, Sunil Singh Sandhu, Fernisa June Sison, Ted St ephen Strom, Kristian Marc Takvam, and Wei Tan —were not so fortunate. While they valiantly tried to escape the burning boat — managing even to activate one of the fire extinguishers — none survived, all dying of smoke inha lation and asphyxiation. A brief video, recorded by one of the tr apped passengers, showed their struggle to stay alive thre e minutes after Boylan called the Coast Guard and decided to jump overboard. C. The I ndictment and Tr ial A F irst Supe rseding I ndictment charged Boylan with seaman’s manslaughter in violation of 18 U.S.C. § 1115, which provides “[e]very captai n. . . on any steamboat or vessel, by whose misconduct, negligence, or inattention to his duties on such vessel the life of any person is destroyed, . . . shall be fined under this title or i mprisoned not more than ten years, or both.” The dist rict court dismissed that indictment, which largely tra cked the statutory language, because it failed to allege that Boylan acted with gross neglige nce. The court concluded that because the federal involuntary manslaughter statute, 18 U.S.C. § 1112, requires gross negligence, § 1115 must as well. It also r elied o n cases that explored “commo n - law understandings incorporat[ing]” gross negligence “into an involuntary manslaughter charge under Section 1112,” like

8 USA V. B OYLAN United State s v. Keith, 605 F.2d 462 (9th Cir. 1979). T he district co urt recogn ized that “the only published federal appellate decision directly on -point,” United States v. O’Keefe, 426 F.3d 274 (5th Cir. 2005), explicitly held tha t § 1115 did not require gross negligence. But it was not “convinc[ed]” of the Fifth Circuit’s decision in light of § 1112 and the common law involuntary manslaughter cases. The government ult imately did not appeal that decision, and instead obtained a Sec ond Superseding Indictment, which alleged gross negligence. At trial, the government presented the testimony of the surviving crew members, as well as expe rt testimony about where th e blaze began and a captain’s duty of ca re when it comes to fire safe ty on board vessels like the Conception. The jury instructions included that, to find Boylan guilty under § 1115, the government must prove beyond a reasonable doubt that he “engaged in misconduct and/or acted wit h gross neglig ence.” Aft er ten days of trial, the jury returned a guilty verdict, and Boylan received a four - yea r sentence. II. DISCUSSION A. Standard of Review “ We review de novo w hether the district court’s jury instructions misstated or omitted an element of the charge d offense. ” 3 Unit ed States v. Chi Mak, 683 F.3d 11 26, 1133 3 Boylan argue s that bec ause th e distri ct court had pre viousl y determi ned that gros s negl igence w as requi red unde r § 1115, the “law of the case” doctrine and waiver precl ude us from reviewing th e issue. We reject these argument s. “Under the law of the case doctrine, a court will generally refuse to reconsider an issue that has already been decided by the sam e court o r a highe r cou rt in the same case. ” Gonzale z v. Ar izona, 677 F.3d 383, 389 n.4 (9th C ir. 2012) (en banc). And to the exten t the

USA V. B OYLAN 9 (9th Cir. 2012). We “ review th e district cou rt’s formula tion of the jury instruction s for abuse of discretion. ” Id. A n improper jury instruction does not require r eversal if the error i s harml ess — that is, if it is “clear beyond a r easonab le doubt that a rational jury would have found the defe ndant guilty absent the error. ” United States v. G arcia, 729 F.3d 1171, 1177 –78 (9th Cir. 2013) (quoting Neder v. United States, 527 U.S. 1, 18 (1999)). B. Secti on 11 15 Requ ires Negl igence, Not Gro ss Neglig ence Boylan argues that the district court’s jury instruction on § 1115 misstated the law, as it provided that guilt could follow if Boylan “engaged in misconduct and/or acted with gross negligence.” According to Boylan, the term “misco nduct” permitted the jury to convict Boylan of something less than gross negligence, contrary to what § 1115 requires. Th e government offers many responses, including that § 1115 does not require gross negligence, but merely negligence. Hence, the government argues it actually met a higher burden than the statute requires, and there w as ultimately no er ror requiring reversal. We agree wi th the g overnmen t that § 1115 does not require gross negligence. Known as seaman’ s man slau ghter, § 1115 provides that “[e]very ca ptai n . . . by whose misconduct, negligence, or inattention to h is duties on [a] vessel the life of any person is destroyed. . . shal l be . . . imprisoned not more than ten years.” 18 U.S.C. § 1115. Nowhere in the text is “gross negligence” required. government did not interlocutorily a ppeal the district cou rt’s decision requirin g gross neglige nce, we address the argumen t, as “ we can affirm on any g round su pported in the re cord.” Un ited States v. Jo b, 87 1 F. 3d 852, 860 (9th Cir. 201 7).

10 USA V. B OYLAN See O’K eefe, 426 F.3d at 279 (holding that the statute’s “terms are unambiguous and therefore must be given their plain meaning”). Boylan is correct that in the context of involuntary manslaughter under § 1112, we have deemed “gross neglig ence” to be an “ess ential element ” for a c onviction. Keith, 605 F.2d at 464. Sect ion 1112 (a) provides that involuntary manslaughter is “the commission of an unlawful act not amounting to a felony, or in the commission in an unlawful manner, or without due cauti on and circumspection, of a lawful act which might produ ce death.” 18 U.S.C. § 1112(a). Although the statute does n ot contain the term “gro ss neg ligenc e,” w e conclud ed th at this was essenti al for criminal liability — “the phr ase ‘without due caution and circumspection’. . . connote[d only] simple negligenc e sufficient f or civil liability.” Ke ith, 605 F.3d at 463; see also Gar cia, 729 F.3d at 1175 (“ We have consistently held that involuntary manslaughter r equires proof beyond a reasonable doubt that the defendant acted with gross negligence.”). But the statute before us is not invo luntary manslaughter; it is seaman ’s manslaughte r. And just because we have construed involuntary manslaughter to require gross neglig ence do es not mean that same principle extends to seaman’s manslaughter, a distinct statutory offense with a different text, history, and purpose. As the Fifth Circuit observed wh e n declining to import “gross negligence” into § 1115— even though, like the Ninth Circuit, it had done so for § 1112—involuntary mansl aughter and seaman’s manslaught er are “separat e crimes ad dressin g dif ferent con cerns wi th d ifferent penalti es.” O’K eefe, 426 F.3d at 278 n.1 (citation omitted).

USA V. B OYLAN 11 Wh ereas § 1112 applies indi scriminately “t o all persons, regardl ess of wh ere the o ffense o ccurs or w hether t he offender had any unique responsibilit y or fiduciary duty towards th e victim of the crime,. . . . § 1115 applies only to commerci al vessel s [’ ] [ ] operators and ow ners.” 4 Id.; s ee also United States v. Alvarez, 809 F. App’x 562, 569 (11th Cir. 2020) (“In 18 U.S.C. § 1115, Congress affirma tively, unambiguously, and expressly criminalized the act of negligently causing a person’s death while operating a vessel. ”). And this distinc tion is meaningful. Every day, ves sel masters “have the lives of thousands of helpless human beings in their keeping, [and] should be held to the strictest accountability and required to exer cise the highest degree of skil l and care. ” Van Sch aick v. United States, 15 9 F. 847, 855 (2d Cir. 1908); see also The J ames Griffiths, 84 F.2d 785, 786 (9th Cir. 1936) (noting t hat a vessel master’s duty “to exercise due diligence in making the vessel se aworthy as to her personnel. . . is one of the owner’s highest obligations”); Manley v. N icodemis en, 147 F. Supp. 229, 231 (D. Mass. 1957) (“The relationship of a master to a ship is a peculiar ly close one. His duty has been describe d as fiduciary. It includes doing, at all times, everything possible to preser ve th e vess el.”). Given a captain’s heightened obligations, an ordinary neglig ence stand ard is sens ible i n the seaman’s manslaughter context. 4 In United St ates v. K aluza, 780 F.3d 6 47 (5th C ir. 2015), the Fifth Circuit revisited O’Keefe and the me aning o f § 1115. Kaluza concerned a different part of § 1115, but t he court reiterated O’Keefe ’s holding t hat “the pla in text of the phrase ‘mis conduct, negli gence, or inatt ention,’” was unambi guous. Id. at 65 9 – 60.

12 USA V. B OYLAN The legislative history of § 1115 support s this reading. Sectio n 1115 ’s predec ess or originally appeared in 1838 as part of legislation entitled “ An Act to p rovide for the better security of the lives of passengers on board of vessels propelled in whole or in part by steam.” United States v. McKee, 68 F.4th 1100, 100 3–04 (8th Cir. 2023) (citing Act of July 7, 1838, ch. 191, 5 Stat. 304); see also United States v. Holtzhauer, 40 F. 76, 78 (C.C.D. N.J. 1889) (expla ining that Congress’ purpose in promulgating the 1838 A ct w as to “establish a supervision over the conduct of th e officers and other persons employed on any steam - boat or vess el navigat ing th e waters o f the Un ited S tates”). Section 12 of the 1838 A ct maintained the same culpability triad as what is now in § 1115: “mis conduct, negligence, o r inattention.” Act of July 7, 1838, ch. 191, § 1 2, 5 Stat. 304, 30 6. And when the 1838 A ct was reenacted in its present form in 1909, there was no change to th at requirem ent. United States v. LaBrecque, 419 F. Supp. 430, 435 (D. N.J. 1976) (citing Act of Mar. 4, 1909, ch. 321, § 282, 35 Stat. 1088, 1144). Rather, t he new st atut e was “virtua lly identical to the prior statute, the one d ifference being that v essels o ther th an steamb oats [we]re now included w ithin its ambit,. . . reflecting t echno logical developments.” Id. Meanwhile, in other maritime statutes, Congress has explicitly engrafted a gross negligence requirement. In penalizing individuals who negligently operate vessels, Congress imposes a civi l p enalty fo r “op eratin g a v essel i n a negligent manner, ” but m ak es it a misd emeano r to “o perat[e] a vessel in a grossly negligent manner.” 46 U.S.C. § 2302(a)– (b) (emphasis added). That Congress distinguished between the two forms of negligence in

USA V. B OYLAN 13 another maritime miscon duct statute — but re fused to do so here —is telling of Congress’ intent. Nineteen th - century cases interpreting the predecessor statute to § 1115 a re also in accord with an ordinary negligence standard. 5 See United States v. Warner, 28 F. Cas. 404, 407 (C.C.D. O hio 1848) (“[A]ny act of ‘misconduct, negligence or inattention ’” is enough for guilt, and if Congress had intended for guilt to require “evidenc e of a positive, malicious intent, the words used would doubtless have been such as to have mad e that intention clear. ”); United States v. Farnham, 25 F. Cas. 1042, 1044 (C.C.S.D.N.Y. 1853) (“ [I] t is no matter what may be th e degree of misconduct, whether it be slight or gross. ”); United States v. Col lyer, 25 F. Cas. 554, 57 7 (C.C.S.D.N.Y. 1855) (“It is not required of them to prove willful or intentional mismanage ment or mis conduct on the part of the accused.”); United State s v. Keller, 19 F. 633, 637 (C.C.D.W. Va. 1884) (defining “negligence” as “an omission to perform some duty” or “ a violation of s ome rule, which is made to govern and control one in the discharge of some duty”); see also Van Schaick, 159 F. at 850 (“Intent is not an element of the offense, malice need not be proved.”). We decl ine to di srupt this history by importin g a new c ulpability standard into § 1115. Accordingly, we follow the Fifth and Eleventh 5 To the exte nt Boylan argue s that cases su ch as Elo nis v. U nited S tates, 575 U.S. 72 3 (2015), and Staples v. U nited S tates, 511 U.S. 600 (1994), require i mputing a gross ne gligenc e men s rea, we disagree. Tho se cases concer ned statutes silent o n mental state. Elo nis, 575 U.S. at 732 (noti ng the st atute “does not speci fy that the defendant must have any mental state with respe ct to these elemen ts”); Staples, 5 11 U.S. at 605 (noting the statute “is silen t concer ning the men s rea required for a violation”). But § 1115 is not silent; its text ex plicitly pe rmits convictio n based on negligence.

14 USA V. B OYLAN Circuits and hold that § 1115 does not req uire gross negligence. C. Any E rror wi th the Sta tutory T erm “Miscon duct” was Ha rmless To the extent Boylan argues ther e is still error because the instruction included the ter m “misconduct,” any error i s harmles s. That is, “the omitted [or missta ted] element w as uncontested and supported by overwhelming evidenc e, such that the jury verdict would have be en the same absent the error.” United States v. Coll azo, 984 F.3d 1308, 1336 (9th Cir. 2021) (en ban c) (citing Neder, 527 U.S. at 17 (alteration in original)). Specific ally, Boylan argues tha t the statutory term “miscondu ct” permitted liability ba sed on regulatory violations alone and conviction based on a lower standard than negligence. To the first point, the jury instructions explicitly cautioned agains t what B oylan al leges. Indeed, the district court warned that “[t ]he m ere fact t hat [B oylan] violated a regulation is not by itself s ufficient to establish a violation of 18 U.S.C. § 1115. Rather, you must co nsider all of the relevant evide nce regarding the existence or non - existence of gross negligence a nd the other elements of Section 1115.” T o the second point, beca use this case was argued under a gross negligence theory, any error with the misconduct instruction is harmless. 6 In frami ng the cas e, the district court repeatedly instructed the jury that gross negligence was the required standar d for culpability under § 1115. And t he 6 We do not decide whether a n indict ment al leging o nly m isconduct, without any menti on of negl igence, would sa tisfy § 1115.

USA V. B OYLAN 15 court suggested that gross negligence wa s not an optional element for proving § 1115. I n trying this case, the government ne ver argued that mere mis conduct was sufficient for conviction. During the government’s closing argument, the few times the term “misco nduct” was used, i t was alway s teth ered to “gross neglig ence.” And when de fining the phrase “Misconduct and / or Gross Negligence,” the government relied on the definition of gross negligence — “reckless di sreg ard for human life.” Thus, the jury could not have based its conviction solely on misconduct. Finally, the overwhelming evidence against Boylan — never training his ine xperienced staff on fire safety procedures, failing to adhere to the regulatory requirement to have a roving patrol, jumping overboard instead of attempting to save any of the passengers trappe d below deck, and so on — establish e s that the jury “would have found [Boylan] guilty absent the error.” Garcia, 729 F.3d at 1177 (quoting Neder, 527 U.S. at 18). B ecause th e dis trict court’ s instruction held the government to a higher standard than what § 1115 requires, and the evidence of gross negligence wa s over whelming, there was no reversible error. AFFIRMED.

16 USA V. B OYLAN KOH, J., concurring: I agree with my coll eagues t hat any al leged error i n the jury instructions’ use of “misconduct” to def ine the crime was har mless in light of “the over whelming evidence a gainst Boylan.” 1 Op. at 15; see United States v. Collazo, 984 F.3d 1308, 1336 (9th Cir. 2021) (en banc); United St ates v. Garcia, 729 F.3d 1171, 1177 (9th Cir. 2013); Neder v. United States, 527 U.S. 1, 17 (1999). Under our precedent, that is a sufficient basis to find harmless error, and the majority opinion could — and should — have stopped ther e. See Greater New Orleans Broad. Ass’n v. United Stat es, 527 U.S. 173, 184 (1999) (“It is, however, an established part of our constitutional jurisprudence that we do not ordinarily reach out to make novel or unnece ssarily broad pronouncements on constitutional issues wh en a case can be fully resolved on a narrower ground.”). The majority opinion does not stop there. Instead, it also decides t hat th e alleged error w as harmles s beca use (1) the dist rict jud ge “fram[ed ]” th e case as one o f gros s negli gence, and (2) during the prosecution’s closing arguments, “the few times the term ‘miscondu ct’ was us ed, it was always t ethered to ‘gross negligence.’” Op. at 14 –15. I disagree wit h both of these reasons. In this case, the Introductory Instructions stated: “The Government asserts that, as the captain of the Conception, 1 18 U.S.C. § 1115 s tates “Every captai n, engine er, pil ot, or ot her perso n employed on any st eamboat or ve ssel, by whose mis conduct, negl igence, or inatt ention to his dutie s on suc h vessel t he life of a ny person is destroye d, and e very owne r, chart erer, i nspector, or ot her pu blic officer, through w hose frau d, negl ect, conni vance, misconduc t, or violat ion of law the life of any pers on is de stroyed, s hall be fine d under t his tit le or impris oned not mo re than te n years, or both.”

USA V. B OYLAN 17 Defendant’s misconduct and/ or gr oss negl igence cause d those deaths. Among the alleged ac ts of misconduct and/ or gross negligence are…” (Emphasis added). The “Inst ructi ons as t o the C rime” st ated: “The Defendant is charged in the I ndictment with a violation of 18 U.S.C. § 1115 which deals with misconduct and/ or gross negligence of ship officers which causes the death of a person on navigable waters.” (Emphasis added). The “Instructions as to the Crime” used the disjunctive phrase “misconduct and/ or gross negligence” three more times. (Emphasis added). The jury was also instructed that “you must base your verdict only on the evidence received in the case and these instructions,” that the jurors had a “duty to apply the law as [given to them],” and that “a rguments by the lawyers are not evidence. ” It was the jury’s duty to fol low these instructions, and we must presume that they did so. CSX Transp., Inc. v. Hensley, 556 U.S. 838, 841 (2009); Sparf v. United States, 156 U.S. 51, 102 (1895). In f act, we presume that the jury “attend[ed] closely [to] the particular language of the trial court’s instructions.” Francis v. Franklin, 471 U.S. 307, 324 n.9 (1985). The majority’s reasoning effectively reads the disjunctive “or” out of the instructions and assumes instead that the jur y followed the district ju dge ’s framing of the case and the prosecution’s closing arguments as to t he applicable legal standard. The majority does not and cannot cite any authority supporting the proposition that a jury instruc tion error may be harmless because of the district judge’s framing of the case or the prose cution’s closing arguments. The harmless error cas es th e maj ority c ites, Collazo, Ga rcia, a nd Neder,

18 USA V. B OYLAN held that a jury instruction error may be harmless in light of the “overwhelming evidence” supporting conviction or the “totality of the instru ctions.” Collazo, 984 F.3d at 1336; Garcia, 729 F.3d at 1178; Neder, 527 U.S. at 17. No case holds that the district judge’s framing of the case or the prosecution’s closing arguments are evidence or can supplant the jury instructions. The majo rity ci tes to one s entence d efinin g “reckl ess disregard for human life” in the ten paragraph long “Instructions as to the Crime.” The cited sentence is in the paragraph defining the crime’s mens rea, which st ated: Second, the Defendant engage d in misconduct and/or acted with gross negligence which means acting with wanton or reckless disregard for human life. To establish reckless disregard for human life, it must be shown that (1) Defendant was aware of the serious risk to human life which his conduct created, or Defendant knew of facts which, if considered and weighed in a reasonabl e mann er, indi cate a s ubstan tial and unjustifiable risk to human life; and (2) he deliberately disregarded that substantial and unjustifiable risk of crea ting potentially life - threatening condition of which he was aware[.] It is a t a minimum ambiguous whe ther the definition of “reckless disregard for human life” applied to “gross negligence” only, or to the whole phrase “misconduct and/or gross negligence.” Moreover, the disjunctive misconduct and/ or gross negligence was in the first sentence of the above

USA V. B OYLAN 19 paragraph and appeared in the same Instruction three more times: The Defendant is charged in the Indictment with a violation of 18 U.S.C. § 1115 which deals with misconduct and/ or gross negligence of ship officers which c auses the death of a person on navigable waters. Third, the Defendant’s misconduct and/ or gross negligence was the proximate cause of the death of a person on board the vessel. A proximate cause is one that played a substantial part in bringing about the dea th, so that the deat h was the d irect resu lt or a reasonably probable consequence of the Defendant’s misconduct and/ or gross neglig ence.. No amount of framing of the case by the district judge or closing arguments by the prosecution can negate th ese inst ruct ions. We all agree th at t he all eged erro r of incl udin g “misconduct” in the jury instructions was harmless because the evidence in this case is overwhelming. See Co llazo, 984 F.3d at 1336. That suffices, and we need not say more.