Full opinion text
TORRUELLA, Circuit Judge. This consolidated appeal concerns a scheme to embezzle and launder funds for a union health plan. The eleven defendants-appellants were employees of the Puerto Rico Aqueducts and Sewer Authority (the Autoridad de Acueductos y Alcan-tarillados de Puerto Rico, hereinafter the “AAA”) and officials of the Unión Indepen-diente Auténtica de Empleados de la AAA (hereinafter the “Union”). Each defendant was convicted after a jury trial of embezzling and laundering funds designated for a health plan administered by the Union. The appeal raises numerous issues concerning the sufficiency of the evidence, the jury instructions, trial procedure, and sentencing. After careful consideration, we affirm in part, reverse in part, and remand for further proceedings. I. Background. .358 A. Dramatis Personae. .358 B. 1998 to 2001 Conduct. .360 C. 2002 to 2003 Conduct. .363 D. 2004 to 2006 Conduct. .365 E. The Proceedings. .366 II. Discussion.367 A. Sufficiency of Evidence.367 1. The Embezzlement Convictions .367 a. “funds ... of a health care benefit program”.368 b. “without authority” .375 c. “knowingly and willfully”.377 2. The Money Laundering Convictions.379 B. Jury Instructions .381 1. Embezzlement Instruction.382 a. instruction that AAA’s contributions belonged to Health Plan.382 b. commingling instruction.383 c. “legal principles” instruction.384 2. Money Laundering Instruction.385 3. Good Faith Instruction.386 4. Rejection of Tax Evasion Instruction.387 C. Trial Procedure.388 1. Mid-Trial Severance Challenge .388 2. Misstatement in Closing Argument.389 3. Post-Trial Threats and Harassment .390 D. Sentencing.391 1. Loss Calculation Enhancement.391 2. Lugo Enhancements.392 a. sophisticated means.392 b. $1,000,000 in gross receipts from a “financial institution[ ]”.392 c. “organizer or leader”.393 3. Substantive Reasonableness .393 III. Conclusion.394 I. Background The following facts are based on the evidence presented at trial. A. Dramatis Personae There are eleven appellant-defendants in this consolidated appeal (together, the “Defendants”). They are: (1) Héctor René Lugo-Ríos (“Lugo”) (2) Andrés Carrasquillo-Colón (“Carras-quillo”) (3) Elba García-Pastrana (“García”) (4) Felipe Román-Lozada (“Román”) (5) Jesús Caraballo-Ortiz (“Caraballo”) (6) Luis Andino-Delbrey (“Andino”) (7) Francisco Martínez-Irizarry (“Mar-tínez”) (8) Juan Ramos-Hernández (“Ramos”) (9) Enrique Vázquez^-Préstamo (“Vázquez”) (10) Jorge L. Urbina-Acevedo (“Urbi-na”) (11)Juan Roldán-Vega (“Roldán”) The Defendants were non-management, “regular” employees of AAA, a public utility company providing water and sewer services to Puerto Rico’s residents. Each defendant was also a member of the Union, which represented AAA’s non-management employees. Management employees of AAA were members of a different union, called Hermandad Independiente Em-pleados Profesionales de la AAA (“HIEP-PA”). At all times relevant to this appeal, the Union had approximately 4,500 total members, and each member paid $7 per month in membership dues. The Union had other funds. Apart from the health plan contributions at issue in this appeal, the Union also received (1) monthly contributions to “a temporary disability insurance” program known as the “SINOT and Uniform Benefits program” (hereinafter “SI-NOT”); (2) monthly contributions to an employee savings and retirement program; and (3) money received by the Union for renting out a parking lot. The Union’s composition, activities, and finances were governed by two documents: (1) a constitution and (2) a collective bargaining agreement with the AAA. The Union’s constitution established a Central Executive Committee (“CEC”) responsible for the Union’s finances and day-to-day administration. The CEC consisted of a president, vice president, executive secretary, and treasurer, as well as a single representative from each of the Union’s seven local chapters. At all times relevant to this appeal, Lugo, Carrasquillo, Garcia, and Román served as the president, vice president, executive secretary, and treasurer, respectively, of the CEC (together, the “Top Four Defendants”). At all times relevant to this appeal, Caraballo, Andino, Martínez, Ramos, Vázquez, Urbina, and Roldán were presidents of the Union’s seven local chapters (together, the “Chapter Presidents”). The Union did not provide a salary for CEC officers. Instead, the officers were paid under a labor leave with pay provision in the collective bargaining agreement. Under that “labor leave” provision, also referred to as a “labor license,” the AAA paid the officers their full salaries, but excused the officers from their AAA jobs to work full time for the Union. Under the collective-bargaining agreement, the AAA agreed to contribute a fixed amount per month to a “health insurance plan” for every Union member. At all times relevant to this appeal, the monthly contributions ranged from $232 to $355 per member. Until 1993, the Union used the AAA’s contributions to administer a health plan called Plan de Salud UIA (the “Old Health Plan”). The Old Health Plan was not incorporated as a “health service organization” and thus was not subject to the jurisdiction of Puerto Rico’s Office of the Insurance Commissioner (the “OIC”). In late 1993, the CEC incorporated the Union-operated plan as a health service organization, Plan de Salud UIA (the “Health Plan” or “Plan”). Defendants Lugo, Carrasquillo, García, and Román filed paperwork certifying that the Union would administer the AAA’s medical contributions “in compliance with” and otherwise be subject to “the Puerto Rico Insurance Code.” In incorporating the Health Plan, the Union complied with provisions of the collective bargaining agreement that required that “[t]he Union ... contract the services of a medical plan that is authorized by the [OIC]” and that “the medical plan fully compl[y] with all the requirements imposed by the [OIC].” The Health Plan’s bylaws provided that the Health Plan was a “non-profit corporation with the fundamental purpose of providing health care services to the employees of [the AAA] who are members of the [Union].” They further stated that “[t]he principal source of financing of [the Health Plan] shall be the contributions negotiated by means of the Collective Bargaining Agreement, to be made by the [AAA].” Under the collective bargaining agreement, the AAA would disburse each monthly Health Plan contribution to the Union via a check in the Union’s name. Although the funds were not directly sent to the Health Plan, the AAA’s monthly checks stated on them face that they were “health plan contribution^],” and the collective bargaining agreement further pror vided that AAA “agree[d] to contribute to the medical plan the following amounts for each employee.” (Emphasis added). In addition, the collective bargaining agreement did not specifically provide that the funds belonged to the Union or that the Union could keep any surplus should it contract with a medical plan for less than the AAA contribution amount. The Health Plan’s bylaws further established a board of directors consisting of eleven members, four of whom would serve on an Executive Committee composed of a president, vice president, execu-five secretary, and treasurer, with nearly identical duties to their Union counterparts. Like the Union’s constitution, the Plan’s bylaws did not provide the board members with a salary. As provided by the Puerto Rico Insurance Code, the Plan’s board of directors would be “fiduci-arily responsible” for funds received on behalf of the Plan’s subscribers. In 1995, after the Health Plan was incorporated, the eleven defendants and four other individuals met at Union headquarters to elect a board for the Health Plan. Lugo, Carrasquillo, García, and Román were chosen for the Executive Committee; they would serve as president, vice president, executive secretary, and treasurer, respectively. The other seven defendants were chosen for the other seven slots; they would serve as Health Plan “delegates” for their respective Union chapters. Thus, at the times relevant to this case, all eleven defendants simultaneously served as members of the Union’s CEC and as members of the Health Plan’s board. B. 1998 to 2001 Conduct The Top Four Defendants controlled two Union bank accounts of significance to this appeal: (1) the Infrastructure Account and (2) the Union Account. The Top Four Defendants, in their capacity as the Plan’s executive committee, also controlled the Health Plan’s bank account (the “Plan Account”), which belonged directly to the Health Plan. From 1998 through most of 2001, the evidence showed that, upon receipt of the monthly “medical plan contributions” from the AAA, Lugo and Román would generally engage in the following transactions: 1. Lugo and Román would first deposit all of the AAA’s Health Plan contributions directly into the Plan Account. 2. After the first transfer was complete, Lugo and Román would then transfer some of that money from the Plan Account into the Infrastructure Account. 3. They would then transfer some of the money from the Infrastructure Account to the Union Account, which is where the Union’s membership dues were deposited. 4. Finally, they would pay themselves and the other Defendants from both the Infrastructure and Union Accounts, via regular checks subsequently cashed or deposited into each of the Defendant’s personal bank accounts. In 2000, the OIC, using its broad investigatory authority, audited the Health Plan. During the audit of the transfers from the Plan Account to the Infrastructure Account, the OIC discovered that the transfers amounted to six percent of the AAA’s monthly contributions, and that the Union was charging the Plan that amount for “administrative services.” Because there was no contract or other documentation to support the six-percent payments, the OIC concluded that the Health Plan had violated the Insurance Code, which required a health service organization to file a formal request before delegating administrative functions to another entity. Moreover, the OIC requested additional information concerning the breakdown of the “administrative services” charged to the Health Plan. Lugo responded in an August 2001 letter that the charge covered such things as “computer systems,” “equipment,” “building,” and “human resources” needed to administer and operate the Health Plan. The OIC kept its investigation open. During this time, the Health Plan had negative cash flow, such that, by the latter part of 2001, the Health Plan could not cover its expenses. Under the collective bargaining agreement, the AAA agreed to assist the Plan in resolving any “deficit” in its finances, subject to an audit, so long as it was not caused by “illegal appropriation, malfeasance, misuse of funds or negligence.” Upon learning of the Health Plan debt, AAA reviewed records provided by the Health Plan to confirm the impairment, but did not conduct a full third party-audit. The records submitted for review did not reflect the payments made to the Defendants, because those payments were made from the Infrastructure and Union Accounts using money transferred out of the Plan Account. Finding no problems in the Health Plan books provided by the Defendants, on September 9, 2001, the AAA provided the Health Plan a check for $2,781,146 payable to the Union. The Defendants deposited the money in the Union Account. In the weeks that followed, the Defendants wrote four separate checks from the Union Account to the Health Plan. The checks totaled around $2.5M, less than the approximately $2.7M paid by the AAA to the Union to cover the Health Plan’s impairment. The difference remained in the Union Account. Throughout the 1998 to 2001 period, the AAA’s monthly medical contributions were $232 per Union member. With few exceptions, the Defendants deposited the full $232 into the Health Plan’s account prior to reallocating the money into other accounts. Also during this time, the Defendants personally received a substantial portion of the funds contained in the Infrastructure and Union Accounts as compared to the Union’s total income. In total, from 1998 through 2001 the Defendants received $3 million from the Infrastructure and Union Accounts, with an average of about $70,000 per Defendant per year. The amounts dwarf the amount reported by the Defendants on their annual income tax statement for those years, ranging from $25,609 (Urbina, 1999) to $46,048 (Garcia, 2001). Moreover, despite receiving these payments, the Defendants were not listed on the Health Plan’s payroll or the Plan’s tax returns. Throughout this time period, Garcia, in her role as executive secretary, certified to the OIC that all of the members of the Health Plan’s board, which consisted of the eleven Defendants, fully discussed the full gamut of the Plan’s business on a frequent basis. C. 2002 to 2003 Conduct The landscape altered dramatically in the beginning of 2002. In early 2002, the OIC continued its investigation into the “administrative services” the Defendants charged the Health Plan. In January 2002, Lugo sent the OIC a letter attaching what he claimed was the “contract” under which the Defendants provided such administrative services for the Health Plan. The contract had only been signed a week earlier by Lugo and José Sánchez Gastaltierri (“Sánchez”), the Health Plan’s administrator. Sánchez would later testify at trial that Garcia had given him the contract to sign, and he had signed it that same day or the day afterward without analyzing it. He further testified that he only signed it because he “understood that to be a requirement” of his job as a “consultant” to Lugo and the Health Plan. Still in early 2002, a “me-too” clause in the collective bargaining agreement required AAA to contribute the same amount of funds for health care for Union members as for members of HIEPPA. Accordingly, beginning in February 2002, the AAA began to contribute $355 monthly to the Health Plan for each Union member. Also beginning in February 2002, the Defendants opened a new banking account, known as the Welfare Account, which did not appear in either the Union’s or the Health Plan’s records. The opening of the Welfare Account came hot on the heels of a Report of Examination issued by the OIC on December 17, 2001, which found that the Health Plan violated the Insurance Code by charging the AAA a higher rate than was approved by the OIC. In fact, the Health Plan had not sought approval for its rate since 1994, when the OIC approved a rate of $222 per subscriber. Thus, purportedly to avoid any fines for charging unapproved rates, the Defendants went against their prior practice and began to deposit the full $355 per member contribution into the Welfare Account, and later would transfer a substantial portion of the contribution into the Health Plan. The remaining amount would be transferred through different Union-controlled accounts to pay the Defendants and to finance Union activities. In 2002, the AAA’s $355 monthly contributions per member totaled more than $20.3 million. However, only $16.3 million of that amount ultimately reached the Health Plan. The Health Plan subsequently faced another impairment. This time, the Defendants decided that, to cover the debt, the Health Plan would seek a series of loans from the Union, which would require the Plan to obtain OIC approval of the loans. The Plan sent the OIC the requisite paperwork, which was certified by García and Román. Luciano testified that, at the time the loans were made, he “did not believe that the [U]nion had that kind of money to lend ... out,” given how minimal its income was in comparison with the Plan’s. He further testified that when he aired his concerns, he was later fired, he believed in part because of these “differences.” The OIC ultimately approved the loans based on the Defendants’ representations. The Union made four loans to the Health Plan in 2002 and 2003, totaling about $3.9 million. The Defendants disbursed each of the four loan checks from the Union Account into the Plan Account. However, shortly after writing each loan check the Defendants would write another check in the same amount from the Welfare Account to the Union Account, sometimes on the same day (as shown below): 4/16/02 Union Account Health Plan $ 600,057 4/30/02 Welfare Account Union Account $ 600,057 4/9/03 Union Account Health Plan $1,790,000 4/9/03 Welfare Account Union Account $1,790,000 8/21/03 Union Account Health Plan $ 183,245 8/21/03 Welfare Account ; Union Account $ 183,245 9/11/03 Union Account Health Plan $1,391,630 9/11/03 Welfare Account Union Account $1,391,630 Because the Welfare Account was funded with money intended for the Health Plan, essentially the Union was loaning the Health Plan its own funds. The OIC would later discover that the Health Plan was loaning itself its own money and order the loans annulled. In 2003, the Defendants opened yet another Union bank account, the Administration Account. They deposited into that account the remaining funds from the Old Health Plan, funds that had never been transferred to the new Plan when it was first incorporated. As with the Infrastructure and Union Accounts, the Defendants also diverted funds to themselves from the Administration Account. Throughout the course of 2002 and 2003, the Defendants, particularly Lugo, Caras-quillo, and Garcia, remained in contact with the OIC concerning the purported administrative services contract. Aurea López, the OIC’s chief investigator, testified at length concerning irregularities in the contract, including but not limited to: (1) the Health Plan, rather than seek approval from the OIC before delegating functions to the Union, submitted an already-executed contract; (2) the contract lacked any specificity; (3) the Defendants’ responses to OIC questions concerning what the contract covered were vague; (3) Lugo’s attempt to clarify the contract in one instance actually added terms (such as property damage insurance) that were not in the contract; (4) the Union was overcharging the Plan, paying more than $2.2 million more than fair market value for the services the Union provided; (5) neither the Union nor the Plan passed a corporate resolution authorizing the contract; and (6) the contract stated that Sánchez had “complete authority” to sign it on the Plan’s behalf, when there was no evidence that he had such authority. From 2002 through 2003, the Defendants paid themselves a total of more than $1,700,000 from the Infrastructure, Union, and Administration Accounts. Again, none of the Defendants reported this income in their tax returns, despite the fact that the income overwhelmed the amount of money they actually reported. Moreover, the Health Plan’s tax returns, which again Lugo signed, did not list the Defendants on the payroll. Finally, from 2002 through 2003, the Defendants were purportedly meeting regularly “every day,” eating lunch together in the Union’s cafeteria (and charging the meals to the Infrastructure Account to boot). D. 2004 to 2006 Conduct In January 2004, the OIC formally rejected the purported administrative services contract that had been submitted by the Union, concluding that it “substantially affect[ed] the financial situation” of the Health Plan. The OIC cited contractual irregularities and lack of control it allowed the Health Plan over its own finances as reasons for disallowing the arrangement. The OIC also requested information from Carrasquillo about the Infrastructure and Union Accounts, such as who was paid from them, how much, and for what services. Carrasquillo was less than forthcoming. He responded that the Defendants were paid from the Infrastructure Account for spending “50 to 60 percent of the[ir] time” on Health Plan matters, and that he could provide further details but the books were behind. As for the Union Account, Carrasquillo stated that any inquiry into it was “not appropriate” and “unrelated” to the Health Plan. Despite the OIC’s rejection of the contract, the Defendants continued to transfer the Plan’s funds as though the contract was still in effect. In May 2004, the OIC made public much of what it had learned about the Health Plan during its investigation. The Defendants were subsequently ordered to transfer the $7.4M that remained in the Welfare Account to the Health Plan. After learning of the OIC’s findings, the AAA stopped making monthly contributions to the Union for Health Plan purposes, and instead began to deposit contribution payments directly into the Plan Account. In August 2004, the AAA stopped contributing to the Health Plan entirely. It also ceased paying the Defendants under the labor leave provisions of the collective bargaining agreement. Shortly thereafter, in September 2004, all eleven Defendants filed amended tax returns for every year from 1998 through 2003, reporting purported “income” that they had not reported earlier. In a creative stroke, the Defendants listed the previously unreported income as “payments received for professions and commissions” without listing what those “professions” or “commissions” were. In October 2004, the Union began a twelve week strike. While on strike, the Union members, including the Defendants, were not entitled to any salary or benefits from the AAA. Instead, the Union itself would pay each member $300 every two weeks for participating in strike activities, for a maximum of up to $1,800. During the strike, however, all of the Defendants received payments from the Infrastructure and Union Accounts. Many of these payments were treated as reimbursement expenses although the Defendants had no supporting documentation. Including these final payments during the strike, the Defendants received a total of more than $5.8M from the Infrastructure, Union, and Administration Accounts from 1998 through 2004. The individual Defendants’ totals were as follows: Lugo $1,757,164 Carrasquillo $ 948,166 Garcia $ 540,127 Román $ 868,421 Caraballo $ 287,204 Andino $ 282,086 Martínez $ 247,897 Ramos $ 234,714 Vázquez $ 247,075 Urbina $ 194,729 Roldán $ 203,827 In late October 2004, federal agents executed a search warrant at the Union’s headquarters, which also housed the Health Plan’s offices. Agents seized from Lugo’s office nearly $40,000 in cash, along with ten uncashed checks from the Infrastructure Account and incomplete Health Plan board meeting minutes. In 2005, a grand jury issued a subpoena to the Health Plan’s custodian of records, seeking the complete minute book for the Plan’s board meetings. Garcia, the Health Plan’s custodian, declined to produce the book, claiming that it was seized during the search. In early 2006, just months before trial, Garcia gave the minute book to her successor as the Health Plan’s executive secretary, Enrique Dávila Vargas (“Dávila”), which later was obtained by the government during trial. The book contained additional meeting minutes that were not included in the documents seized by the government. E. The Proceedings The Defendants were charged in a 140-count indictment. Count 1 charged all Defendants with a conspiracy to violate 18 U.S.C. § 669, which prohibits the embezzlement or misapplication of funds of a “health care benefit program.” Counts 2 through 132 each charged an individual Defendant with receipt of a check from a Union bank account (e.g., the Infrastructure Account, the Union Account) that the government alleged constituted substantive embezzlement of Health Plan funds in violation of § 669. Counts 133-39 charged Román and Lugo jointly with misapplication of funds in violation 18 U.S.C. § 669, specifically funds concerning the Old Health Plan. Finally, Count 140 charged all of the Defendants with a conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(a)(l)(A)(i), § 1956(a)(1)(B)®, & § 1956(h). The case proceeded to trial, which commenced on May 2, 2006. At trial, a number of witnesses testified for the government: Nieves; López; Luciano; Sánchez; Cornier; Dávila; Jennifer Griffen, an FBI financial analyst who was involved in the October 2004 search and who testified to the payments to the Defendants from the Union, Infrastructure, and Administrative Accounts; Clotilde Díaz (“Díaz”), who ran the Union cafeteria; and Gerald LaPorte, an expert on ink analysis of documents. The Defendants countered with, among other things, the testimony of Lemuel Toledo (“Toledo”), a certified insurance counselor who testified as to the reasonableness of the rate charged under the administrative services contract and Manuel Villalón, a tax attorney and CPA who advised the Defendants. Of significance to this appeal, the government gave the minute book it obtained from Dávila to LaPorte to be examined. At trial, LaPorte testified that the minutes dating from 1995-2008, including all meetings relating to the Health Plan loans, were likely not authored on the dates presented. In fact, he testified that the evidence “strongly supported]” the conclusion that the minutes in question, including the loan minutes, were all created at the same time, rather than over the course of eight years. In June 2006, following a seven-week jury trial, all of the Defendants except Carrasquillo were convicted of all charges they faced. In September 2006, following a separate three-week jury trial, Carras-quillo, who was tried separately due to illness, was likewise convicted of all charges that pertained to him. In December 2006 and February 2007, the Defendants were sentenced, with the respective sentences ranging from twelve months and a day (Caraballo, Andino, and Urbina) to 210 months (Lugo). The Defendants now appeal. II. Discussion A. Sufficiency of Evidence The Defendants raise a number of issues concerning the sufficiency of the evidence in support of their convictions. “We review a sufficiency claim de novo, drawing all reasonable inferences in favor of the verdict to determine whether a rational jury could find each element of the crime beyond a reasonable doubt.” United States v. Scott, 564 F.3d 34, 39 (1st Cir.2009) (citing United States v. DeCologero, 530 F.3d 36, 65 (1st Cir.2008)). In reviewing the sufficiency of the evidence, “[w]e do not ‘weigh evidence or make credibility judgments.’ ” United States v. Bristol-Mártir, 570 F.3d 29, 38 (1st Cir.2009) (quoting United States v. Ofray-Campos, 534 F.3d 1, 31 (1st Cir.2008)). Moreover, we “ ‘must uphold any verdict that is supported by a plausible rendition of the record.’ ” Id. at 38 (quoting Ofray-Campos, 534 F.3d at 32). 1. The Embezzlement Convictions The Defendants contend that the evidence is insufficient to support their convictions for embezzlement. Each was convicted under Count I of conspiring to embezzle Health Plan funds pursuant to 18 U.S.C. § 669 and 18 U.S.C. § 371. The Defendants were also convicted of separate counts of substantive embezzlement under § 669 based on payments they received from either the Union, Infrastructure, or Administrative Accounts. 18 U.S.C. § 669, the basis of the embezzlement convictions, provides: Whoever knowingly and willfully embezzles, steals, or otherwise without authority converts to the use of any person other than the rightful owner, or intentionally misapplies any of the moneys, funds, securities, premiums, credits, property, or other assets of a health care benefit program, shall be fined ... or imprisoned ... or both.... 18 U.S.C. § 669(a). Section 669 “remains largely untested and unanalyzed.” Robert Fabrikant et al., Health Care Fraud § 2.02[5], at 2-34 (2009). a. “funds ... of a health care benefit program” The Defendants first contend that there is insufficient evidence to establish that the transactions at issue in support of Counts 2 through 139 involved “funds ... of a health care benefit program.” 18 U.S.C. § 669. They argue that, because the Defendants commingled Health Plan funds with other funds within the custody of the Union, there is insufficient evidence to establish that the Defendants embezzled Health Plan funds as opposed to other Union funds. A first reason for rejecting this contention is that the defendants effectively admitted in their testimony and their arguments to the jury that the moneys they took were essentially payments to them by the Health Plan for services they rendered to it. It was the Defendants’ position throughout trial that as officials of the Health Plan, they rendered numerous administrative and executive services to it for which they were entitled to compensation, and that moneys which are the basis of the allegations of the embezzlement were not embezzled at all but were rather taken by them as the Health Plan’s proper compensation to them for the services they rendered. Their contention that there was insufficient evidence to prove that the funds were Health Plan moneys is contradicted by their own assertions that these were Health Plan moneys. Even without these admissions, we would reject the Defendants’ contention. As a threshold matter, the parties dispute what § 669 requires the government to show in order to prove that the purportedly embezzled funds were “funds ... of a health care benefit plan.” The language of the statute does not provide any guidance, and the few cases that have concerned convictions under § 669 have not addressed the government’s burden in proving that embezzled funds are “funds ... of a health care benefit program.” See, e.g., United States v. Whited, 311 F.3d 259 (3d Cir.2002) (addressing sufficiency of the indictment, meaning of “health care benefit program,” and Commerce Clause challenges to § 669); United States v. Jackson, 524 F.3d 532, 534 (4th Cir.2008), vacated on other grounds, — U.S. —, 129 S.Ct. 1307, 173 L.Ed.2d 575 (2009) (mentioning, without discussing, conviction under § 669). The Defendants point out that, in enacting § 669, Congress did not adopt the approach of other federal statutes that relieve the government of proving the character of the funds embezzled. By way of contrast, the Defendants cite 18 U.S.C. § 666, which prohibits the “embezzle[ment]” of funds “owned by, or ... under the care, custody, or control of [an] organization, government, or agency,” so long as the organization received “in any one year period, benefits in excess of $10,000 under a Federal program.” 18 U.S.C. § 666(a) & (b). By its terms, § 666 does not require the government to prove that the funds purportedly embezzled are, in fact, those funds provided by the “Federal program” as opposed to other funds. In fact, the legislative history of § 666 shows that it was enacted precisely to deal with the difficulty of proving the “federal character” of funds under the general federal fraud statute, 18 U.S.C. § 641. See S.Rep. No. 98-225, at 369 (1985), reprinted in 1984 U.S.C.C.A.N. 3182, 3510 (noting that § 641 required the government to show “that the property stolen is property of the United States,” which was “impossible” in many cases where “the funds are so commingled that the federal character of the funds [could] not be shown”). By contrast, the Defendants argue that § 669 provides no such language. In fact, in enacting § 669 as part of the Health Insurance Portability and Accountability Act of 1996, (“HIPAA”), see Pub.L. No. 104-191, 110 Stat. 1936 (1996), Congress had the opportunity to adopt the approach taken by § 666 but chose not to. Instead, and as the government concedes, § 669 was most likely “modeled after” § 641. See Fabrikant et al., supra, § 3.02[13], at 3-114 to 3-115 (2007) (noting that § 669 was “modeled after 18 U.S.C. Section 641, which makes it a crime to embezzle, steal, or convert property or a thing of value belonging to the United States”); see also Diana Douglas, Attorneys Caught in the Web of Medicare/Medicaid Fraud, 21 J. Legal. Med. 395, 412 (2000) (“Section 669 was patterned after 18 U.S.C. section 641, the federal theft and embezzlement statute, and serves as a companion to it.”). Indeed, although not mirror images of each other, both set forth the character of the funds as an element of the offense. We agree with the Defendants’ premise that § 641 provides the closest analogue to § 669. However, we disagree with the Defendants’ conclusion that embezzled dollars cannot serve as the basis of a conviction under § 669 unless they are proven to have been the property of a health plan. Like § 669, the case law interpreting § 641 is sparse, but courts have generally not required the government to trace the dollars embezzled to a federal source. In United States v. Gibbs, for example, the Ninth Circuit addressed a sufficiency challenge to a § 641 conviction in the context of commingled sources of funding. 704 F.2d 464 (9th Cir.1983) (per curiam). There, the defendant founded a corporation to “promote educational opportunities for American Indians” that “received most of its funds from the federal government.” Id. at 465. The defendant was convicted under § 641 despite the fact that the defendant “commingled federal funds with nonfederal funds received from state and private sources.” Id. The Ninth Circuit upheld the conviction, which involved multiple counts of substantive embezzlement where “the amount of nonfederal funds exceeded the amounts embezzled, [such that] it is possible that the funds embezzled were entirely nonfed-eral.” Id. at 465-66 (noting that the defendant was charged “with thirty-four counts of embezzlement under 18 U.S.C. § 641” and that the “jury convicted him of twenty of the counts.”). In doing so, the court rejected the defendant’s argument that the government failed to prove “the federal nature of the funds embezzled.” Id. at 465. The court held, in particular, that the evidence was sufficient because (1) “between 80-86% of the funds in the account from which [the defendant] embezzled was federal money” and (2) “the federal government monitored and controlled these funds.” Id. at 466. A number of other courts have adopted the same approach. See, e.g., United States v. Evans, 572 F.2d 455, 474 (5th Cir.1978) (holding that the evidence sufficient to support a conviction under § 641 where more than 75 percent of the funds in the commingled account were federal and were “subject to extensive federal controls”); United States v. Scott, 784 F.2d 787, 790-91 (7th Cir.1986) (per curiam) (holding evidence was sufficient to support verdict under § 641 where 98% percent of the commingled funds were federal and “the federal government still maintained supervision and control over the funds at the point when the funds were stolen.”). Our case law is not to the contrary. Defendants cite United States v. Elias-Rivera, where we noted that, in the bankruptcy context, there “is an established presumption that withdrawals for other than trust purposes from an account in which trust funds are commingled with nontrust funds are presumed to be made from nontrust funds.” 848 F.2d 16, 19 (1st Cir.1988). But in that case, involving a bankruptcy trustee who commingled all of the estates he supervised in one account, “[t]he prosecution failed to prove that funds were even missing, much less missing from funds belonging to the debtors,” such that there was a “total lack of evidence” to “rebut [the] presumption.” Id. Elias-Rivera, therefore, does not speak to the situation here, which concerns what evidence is sufficient to rebut any such presumption. Comparing this case to Gibbs and Evans, it is clear that the funds embezzled were “funds ... of a health care benefit program” under § 669. As in those cases, (1) the “health care benefit program” funds were a substantial portion of the commingled funds; and (2) the “health care benefit program” exercised sufficient supervision and control over the funds to preserve their character. As the Gibbs court emphasized, “the government’s supervision and control ... is the critical factor in determining the federal character of the funds in a commingled account.” 704 F.2d at 466. We conclude that, based on the evidence in this case, the Health Plan had sufficient supervision and control over the Health Plan contributions to establish that the funds embezzled were “funds ... of a health care benefit program.” As an initial matter, the Defendants argue that the relevant analogue to “federal supervision and control” in the § 669 context is control by the AAA. But AAA is only the contributor of the funds. Section 669 protects “funds ... of a health care benefit plan,” and thus, as in the context of § 641, the relevant entity for purposes of the “supervision and control” prong is the protected entity. Moreover, as in Gibbs and Evans, the Health Plan was both the source of the funds and the protected entity. Once the Union deposited the funds in the Plan Account, the Health Plan stood in the same position as the federal government in both providing its funds to the Union and in being the victim of the Defendants’ embezzlement. The Defendants further argue that the Health Plan did not have a sufficient stake in the funds such that the funds failed to retain their “Health Plan” character once they were diverted out of the Health Plan Account. In Evans, for example, the court noted that funds in that case “ha[d] a federal origin and a federal end, and during their outstanding circulation they [were] subject to extensive federal controls. This [was] not the situation in which the federal monies [were] intended as an outright grant.” 572 F.2d at 474 (emphasis added). In particular, the Evans court noted that the federal government (in that case the Office of Education) had a sufficient stake in the funds it provided for a federal program; “The federal interest ... is specifically established and preserved by the provision for termination of the program on a date certain and the requirement that the proportionate share of the balance in the special fund be returned to the government.” Id. at 472; see also id. at 474 (“It is statutorily contemplated that the ultimate repayment will be to the federal government.”). The Defendants specifically argue that, unlike in Evans, the AAA did not have a right to recover any excess funds. But again the correct analogue is the Health Plan, not the AAA, and the funds diverted were not meant to be, even by the Defendants’ own admission, “outright grants.” Rather, the Defendants contend that the funds embezzled were for administrative services rendered, and certainly the Health Plan had a sufficient stake in those funds to ensure that the Plan received fair value for those services. The Defendants further argue that the collective bargaining agreement did not bar the Union from preserving any excess funds from the Health Plan. Even if that is true (which is doubtful), there were no excess funds to claim. The Health Plan throughout the time period of the embezzlement scheme suffered significant impairments, such that there were no excess funds that the Union could claim as its own. Thus, as in Evans, the Health Plan had a right to all funds diverted by the Defendants. The Defendants finally argue that, unlike in Gibbs and Evans, there was no equivalent to “federal regulation” that mandated oversight. But there was. As required under Puerto Rico law, the Defendants were fiduciarily responsible to the Plan and, thus, required to maintain oversight on how the funds were used. See P.R. Laws Ann. tit. 26, § 1907 (“Fiduciary liability[:] Any director, officer or member of a health service[ ] organization who receives, collects, disburses or invests funds related to the activities of said organization, shall be fiducially liable for the funds received from the subscribers.”); cf. FDIC v. Sea Pines Co., 692 F.2d 973, 977 (4th Cir.1982) (noting that interlocking directors of two boards have a fiduciary responsibility for assets of both companies). For all of the above reasons, we conclude that the Health Plan exercised supervision and control of the funds, such that they were, in fact, Health Plan funds. Furthermore, the Health Plan funds were a substantial portion of the commingled funds that the Defendants embezzled. As an initial matter, the Defendants argue that the Health Plan contributions made by AAA did not become “funds ... of a health care benefit program” until they were actually deposited in the Plan Account. They point to a concession made by the government in its brief in United States v. Jackson, S.Ct. No. 08-263, where the government conceded that employer contributions to an ERISA plan “themselves are not assets of [a] plan until the contributions are paid to the plan.” U.S. Br. at 10 (Jan. 16, 2009); see also Jackson, 524 F.3d at 543 (holding that “unpaid employer contributions to the Company and Union Plans constituted ‘assets’ of the Plans under 18 U.S.C. § 664,” the ERISA theft statute). The concession, to the extent that it is relevant to this case, does not assist the Defendants. With respect to the convictions occurring from 1998 to 2001, the evidence conclusively demonstrated that, save for one instance, the Union transferred the entire monthly Health Plan contributions to the Plan Account. Thus, there was no question that the funds subsequently diverted were Health Plan funds. Moreover, although, beginning in 2002, the Defendants first deposited the Health Plan in the Welfare Account, a substantial amount of the funds were then deposited into the Plan Account, such that any subsequent diversion of the funds from that Account were Health Plan funds. Turning to the evidence, it conclusively demonstrated that the Health Plan contributions, in the language from one defendant’s brief, “were the largest regular deposits by far.” Based upon the balance sheets provided by the Union, for the years 1998 through 2000, the Union averaged approximately $757,543 per year in income, which translates to a monthly gross income of roughly $63,000 per month. In contrast, during that same time period, and with a contribution rate of $232 per member, the AAA contributed well over $1 million per month in Health Plan contributions during that time period. This percentage alone is well above the 75 to 80 percent threshold established in § 641 cases. Holding the average income of the Union constant, the disparity between the Union’s average monthly income as compared to the Health Plan contributions was even greater from 2002 to 2004. During this time period, the rate increased dramatically, such that the Union was receiving between $1.5 million and $2.3 million in Health Plan contributions per month from 2002 to 2004. The Defendants counter by arguing that the balance sheets failed to include SI-NOT, retirement, and rental income, which were also commingled with Health Plan funds. However, their resort to these additional funds is unavailing. Including these amounts, the evidence showed that the Union contributed approximately $151,041 per month for SINOT and approximately $78,000 per month for the retirement program, and $4,500 per month in income from renting out a parking lot. Combined with the Union’s income in dues (as reflected in the average income above), the total amount of non-Health Plan contribution income averaged approximately $300,000 per month. This, again, is only a small percentage of the millions per month the Union was receiving in Health Plan contributions, with the Health Plan contributions representing approximately 77% ($1 million out of $1.3 million total) of the total amount of commingled funds based on the lowest Health Plan contribution. The Defendants further counter by focusing on the specific accounts from which the Defendants paid themselves. Although, as a whole, the funds that the Union received in Health Plan contributions far outweighed the funds that the Union received from other sources, the Defendants argue that the amount of Health Plan contributions contained in the accounts vis-a-vis other funds were not proportionally high enough to support the convictions. For example, the Defendants point to the testimony of Jennifer Griffin, who did a “deposit source” analysis of the funds contained in the Infrastructure Account, as shown in the table below: 1998: 69% Health Plan 22% SINOT 9% Cultural Trips Account 1999: 74% Health Plan 18% SINOT 8% Cultural Trips Account 2000: 75% Health Plan 16% SINOT 5% Cultural Trips Account 4% Union Account 2001: 47% Health Plan 27% SINOT 15% Union Account 11% Cultural Trips Account 2002: 45% Union Account 36% Health Plan 16% SINOT 3% Cultural Trips Account 2003: 72% Union Account 15% SINOT 8% Cultural Trips Account 5% Health Plan 2004: 57% Investment Redemptions 32% Union Account 8% Health Plan 3% Welfare Account Although for the first three years of the scheme 69 percent (1998), 74 percent (1999), and 75 percent (2000) of the funds contained in the Infrastructure Account were derived from Health Plan funds, the amounts declined in 2001 to 47 percent, and further declined to 36 percent (2002), 5 percent (2003), and 8 percent (2004). The Defendants seize on this decline to argue that, on average, the percentage of Health Plan funds contained in the Infrastructure Account was approximately 44 percent, below the 75 to 80 percent threshold articulated in some § 641 cases. The government counters that the “deposit source” analysis is somewhat misleading. It notes that, even in those years where the Infrastructure Account contained a small percentage of funds directly diverted from the Health Plan, it still received a significant percentage of funds from the Union Account, which itself contained funds from the Health Plan. In 2003, for example, and as shown by the complicated flow charts prepared by Griffin for trial, $19.4 million of the AAA’s Health Plan contributions were deposited into the Union Account. From there, $14.8 million was passed into the Plan Account (via the Welfare Account), with $4.1 million remaining in the Union Account. And then from there, an additional $873,000 was transferred from the Plan Account to the Union Account, which resulted in the Union Account containing well over $5 million of the Health Plan’s funds. This exceeded by several million dollars any other sources of funds contained in the Union Account. Thus, the large percentage (72 percent) of Union Account funds contained in the Infrastructure Account itself contained a large percentage of Health Plan funds, such that, combined with the 8 percent of Health Plan funds already contained in the Infrastructure Account, Health Plan funds comprised a substantial portion of the funds in the Infrastructure Account. However, the government did not establish at trial the “true” total percentage of Health Plan funds contained in the Infrastructure Account. As the above evidence shows, and in contrast to Gibbs, this case involves multiple accounts with commingled funds, with those accounts funneling Health Plan funds into each other. This scenario presents further opportunities for abuse. However, based on our review of the specific evidence in this case, drawing all reasonable inferences in favor of the verdict, we conclude that, as in Gibbs and Evans, Health Plan funds were a substantial portion of the funds in the commingled accounts. First, we stress again that the disparity between the Health Plan contributions as compared to the Union’s other sources of funds was staggering. The Union received in the realm of 70 to 80 percent of its funds from Health Plan contributions, as compared to all other sources (including funds, such as SINOT and the funds for the retirement program, that the Union was not permitted to use as income). Moreover, and as the evidence showed, the Health Plan funds were commingled among the accounts from which the Defendants paid themselves, such that a rational juror could conclude that, at any given time, the Accounts contained Health Plan funds. That alone is sufficient under Gibbs to establish the “substantial portion” prong. Second, we note that the 75 to 80 percent level discussed in Gibbs and Evans is not a threshold. Indeed, the Seventh Circuit upheld a conviction under § 641 where as little as 50 percent of the commingled funds were federal. See United States v. Mitchell, 625 F.2d 158, 161 (7th Cir.1980) (concerning theft of check from Aid to Families with Dependent Children account containing 50 percent federal funds). Thus, almost all of the years for the Infrastructure Account contained a sufficient portion of Health Plan funds. For all of these reasons, we conclude that, as in Gibbs and Evans, the evidence is sufficient to show that the Health Plan funds were a substantial portion of the funds embezzled from the commingled sources. Based on the above, we conclude that the evidence was sufficient in this case to permit a rational jury to convict the Defendants for each of the substantive embezzlement counts. b. “without authority” Defendants next contend that there was insufficient evidence to prove that they were “without authority” to receive the Health Plan funds. The Defendants argue that they were entitled to additional compensation for the work they performed on behalf of the Health Plan, and that this compensation was authorized by the collective bargaining agreement, the constitution, the Plan bylaws, and “historical practice.” We conclude that the evidence was sufficient in this case to establish that the Defendants acted “without authority.” We stress at the outset that the issue is not whether the Defendants were anywhere explicitly prohibited from receiving payments from the Health Plan for services rendered; rather, the issue is whether they lacked the authority to do so. See United States v. Hammond, 201 F.3d 346, 349 (5th Cir.1999) (per curiam) (although union president did not “break any law or union rule” in spending political funds, court affirmed conviction because a “rational juror” could conclude that expenditure was unauthorized). And, in this case, the Defendants lacked such authority. The Defendants first point to the purported “administrative services” contract they provided to OIC, but that is a nonstarter. The evidence at trial showed that the contract was replete with irregularities, overcharged for services, was created after the fact, was ultimately rejected by the OIC, and the government provided evidence that the minutes supporting the contract were forged. The Defendants claimed that the OIC “mistakenly” rejected the contract “on the assumption that [the Defendants] could not receive such compensation because they were paid labor license.” Even if true (which it is not, as detailed in the OIC rejection letter), the contract was nonetheless rejected, and cannot authorize the Defendants’ actions in this case. The Defendants further point to a number of provisions in the Health Plan bylaws, the constitution, and the collective bargaining agreement that would permit compensation or at least not prohibit it. For example: * The Health Plan bylaws establish the authority of the board of directors to “set[ ] salaries of officials”; * The constitution states that “the [CEC] will fix the representative expenses and the bonuses of the Union’s Officers”; * The collective bargaining agreement puts Lugo in charge of “managing and directing the rendering of services.” These provisions, if exercised, may have provided authority for the Defendants’ compensation. But there was no evidence, such as a formal resolution, meeting minutes, or any other documentation that showed that the Defendants exercised those provisions. Thus, these provisions cannot supply the necessary authority for their actions. The Defendant next argue that, as a matter of practice, they received compensation for the services they provided for the Health Plan. They point to the testimony of Rubén Luciano, who testified that, under the Old Health Plan, “there was always compensation paid to the Board of Directors.” But this purported historical practice lacks any formal resolution or other authorization. Moreover, unlike the Old Health Plan, the Health Plan was subject to Puerto Rico’s Insurance Code, and under the Code the Health Plan was required to seek approval from the OIC, and to “furnish to the Commissioner the adequate information to justify the” delegation of administrative services to the Defendants. See P.R. Laws Ann. tit. 26, § 1905(2)(a). The evidence showed that the Defendants failed to do so in this ease, and thus they cannot resort to their historical practice as a source of authority. Finally, the Defendants challenge testimony given by Aurea López, the OIC’s chief investigator into the Union’s scheme, concerning the Defendants’ labor license. At trial, López testified to the following: The reason for excluding those enjoying Union leave is that the position held by the Commissioner of Insurance is that those persons were already being compensated by AAA so that they could offer services to the Union. So we understood that it was also not correct that the [Health Plan] be charged for services that these people rendered to the [Health Plan]. The Defendants claim that López provided unqualified opinion testimony to the effect that the labor license prohibited the Defendants from receiving additional compensation for their work on the Health Plan. See Fed.R.Evid. 702 (permitting opinion testimony if “(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case”). The Defendants point out that López was not established as an expert on the Union’s activities to opine on the labor license. The government argues that, when read in context, López was only giving testimony on historical fact as to the OIC’s conclusion that the Defendants’ six percent charges for services were unreasonable in light of prevailing market rates. We need not decide the issue, because any error in admitting the testimony was harmless, because it would not have “affected the outcome of the trial.” United States v. Dunbar, 553 F.3d 48, 59 (1st Cir.2009)(“ ‘The essential inquiry in harmless error review is whether the improperly admitted evidence likely affected the outcome of the trial.’ ”) (quoting United States v. Tom, 330 F.3d 83, 95 (1st Cir.2003)). As noted above, there was no evidence of any authorization for the payments the Defendants received. The Defendants claim prejudice because, they argue, the government relied upon Lopez’s testimony at trial in support of its theory that the Union’s labor license precluded compensation for Health Plan work, and even cited it in their closing. However, the government argued below, as here, that no provision in the constitution, collective bargaining agreement, the Health Plan by-laws, or any other document provided authority for the payments. Moreover, no mention was made of Lopez’s testimony in the government’s closing. Thus, for all of the above reasons, the evidence was sufficient to permit a rational jury to conclude beyond a reasonable doubt that the Defendants acted without authority. c. “knowingly and willfully” The Defendants finally argue with respect to the embezzlement convictions that the government had not met their burden to prove that the Defendants acted with the requisite criminal intent to be convicted of embezzlement. To establish an individual defendant’s willing and knowing participation in a conspiracy as in this case, the government “need not prove that [he] knew all the details ... or participated in all of the objectives ... of the conspiracy.” United States v. Brandon, 17 F.3d 409, 428 (1st Cir.1994). The prosecution need only “show knowledge of the basic agreement,” with “an intent to commit the underlying substantive offense.” Id. The requisite knowledge and intent can be proven through “circumstantial evidence, including inferences from ... acts committed by the defendant that furthered the conspiracy’s purposes.” Id. With respect to the Top Four Defendants, the evidence of their knowledge and willfulness with respect to the embezzlement convictions was more than sufficient. They all essentially argue that their actions were done in good faith. However, the evidence conclusively contradicts this assertion. We start with Lugo and Román. Among other things, the evidence showed that Lugo and Román, as president and treasurer of both the Union and the Health Plan, had signing authority over all of the bank accounts at issue in this case, and thus signed all of the checks and other documents authorizing the transfer of funds to and from various bank accounts. Lugo and Román also signed off on regular checks made out to themselves and the other Defendants which were deposited into personal accounts. Their consenting signatures are also on Health Plan tax returns that omitted these payments. Lugo and Román were also instrumental in the creation of the administrative services contract, under which the Union leaders paid themselves a six percent of Health Plan funds for administering the Health Plan. They also provided vague and misleading responses about the specifics of the contract during the course of the OIC’s investigation. The administration contract was ultimately found to be invalid by the OIC after it was discovered that the fees the Union charged were substantially above market rates and concerns about the legitimacy of the arrangement were uncovered. Despite being informed of this decision, Lugo and Román continued issuing personal payments from Union controlled funds, which further showed their intent. Cf. Young, 955 F.2d at 103-04 (evidence sufficient to show intent to embezzle where defendant’s “falsification” to a government agency “reveal[ed] a consciousness of guilt” (quotation omitted)). Thus, through all of these actions, both Lugo and Román displayed knowledge and willfulness with respect to the embezzlement scheme in this case. The same is largely true of the actions of Carrasquillo. Even though he lacked signing authority, Carrasquillo controlled the Union and Health Plan accounts after Román’s retirement in April 2004. He was also consistently obstructive when the OIC made inquiries into the administrative services contract. These facts would permit a reasonable jury to conclude that Carrasquillo was knowingly involved in an embezzlement scheme. Garcia, like Lugo and Carrasquillo, also played a significant role in the implementation of the administrative service contract. Although she insists that she was cooperative with the OIC in her investigation, which she asserts is proof that she did not have the intent to embezzle, her role in creating the administrative contract itself (and providing the forged minutes to support the contract) provides substantial evidence of her intent. Most importantly, none of the Top Four Defendants included any of the income they received as compensation from the Health Plan in their tax returns and, when confronted with evidence of their scheme, promptly reported the income, literally within days of each other. That alone is significant evidence of their knowledge and willfulness. See United States v. Fusaro, 708 F.2d 17, 21 (1st Cir.1983) (“Fusaro’s active participation in so many aspects of the scheme as well as his attempts to cover up the scheme as it unraveled, likewise, provides the basis for the inference that he acted with the requisite intent and knowledge.”). The Top Four Defendants each argue that their failure to file taxes on their Health Plan income is evidence of tax evasion, but not of embezzlement. However, as noted below, the jurors were instructed that “the case that is before us ... has nothing to do with tax evasion,” and jurors are presumed to follow instructions. See United States v. Bradshaw, 281 F.3d 278, 285 (1st Cir.2002) (“[I]t is routinely presumed that jurors will follow curative instructi