                    United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT




      ___________
                                       *
      No. 04-3587                      *
      No. 04-4149                      *
      ___________                      *
                                       *
United States of America,              *
                                       *
      Appellant/Cross-Appellee,        *
                                       *
      v.                               *
                                       *
Anna Cacioppo,                         *
                                       *     Appeal from the United States
      Appellee/Cross-Appellant.        *     District Court for the
                                       *     Western District of Missouri.
                                       *
                                       *
      ___________                      *
                                       *
      No. 04-3588                      *
      No. 04-3713                      *
      ___________                      *
                                       *
United States of America,              *
                                       *
      Appellant/Cross-Appellee,        *
                                       *
      v.                               *
                                       *
Richard Dean Plaskett, Jr., also       *
known as Don Plaskett,                 *
                                       *
      Appellee/Cross-Appellant.        *
                                 ________________

                            Submitted: April 20, 2006
                                Filed: August 22, 2006
                                ________________

Before MURPHY, MELLOY and GRUENDER, Circuit Judges.
                       ________________

GRUENDER, Circuit Judge.


       A jury convicted Anna Cacioppo and Richard Dean Plaskett of five counts of
making false statements and/or failing to disclose certain facts in documents required
to be kept by the Employee Retirement Income Security Act of 1974 (“ERISA”) in
violation of 18 U.S.C. §§ 1027 and 2. According to the jury verdicts, Cacioppo made
the false statements and/or failed to disclose facts required to be disclosed in
documents she submitted to Local 264 of the Laborers International Union of North
America (“Local 264”) and the Laborers Welfare Fund and Laborers Pension Fund
(collectively, the “264 Fund”). While Plaskett did not directly submit paperwork to
the 264 Fund, the indictment alleged that he was punishable as a principal pursuant
to § 2. The jury also convicted Cacioppo of six additional counts of violating § 1027
with respect to documents she submitted to Local 1290 of the Laborers International
Union of North America (“Local 1290”) and the Kansas Welfare Fund and the Kansas
Pension Fund (collectively, the “1290 Fund”).


      Following trial, the district court entered a judgment of acquittal in favor of
Cacioppo and Plaskett as to the counts of conviction based upon their submissions to
the 264 Fund. The district court did not rule on Plaskett’s alternative motion for a
new trial. The district court refused to set aside the jury verdicts against Cacioppo for
the counts of conviction related to the 1290 Fund submissions. The United States
appeals the judgment of acquittal for Cacioppo and Plaskett. Plaskett cross-appeals

                                          -2-
the district court’s failure to decide his motion for a new trial, and Cacioppo cross-
appeals the denial of her motion for a new trial with respect to her submissions to the
1290 Fund. We affirm in part and reverse in part.


I.    BACKGROUND


       A Special Grand Jury returned a 39-count indictment charging five individuals
with conspiracy, bribery and mail fraud, as well as the ERISA reporting violations that
are the subject of this appeal. The conspiracy, bribery and mail fraud counts related
to demolition and asbestos-removal work to be done for Rockhurst University in
Kansas City, Missouri. Plaskett was the co-owner of Industrial Environmental
Management (“IEM”), an asbestos removal company in Kansas City, Missouri, that
employed both union and non-union employees at its work sites. Plaskett’s partner
in IEM was Charles A. Cacioppo, Jr. Charles Cacioppo’s daughter, Anna Cacioppo,
worked as an office employee at IEM during the relevant period. The ERISA
reporting counts centered upon two collective bargaining agreements that IEM
entered, one with Local 264 and another with Local 1290, and the employee benefit
payments for which IEM was responsible.


       In February 1999, IEM entered into a collective bargaining agreement with
Local 264 for “covered work” in certain counties in Missouri and Kansas (the “IEM-
264 Association Agreement”). Plaskett signed on IEM’s behalf. The agreement
provided, among other things, that the parties would provide a fringe benefit program
and that IEM would pay into the fringe benefit fund a specific amount for each hour
of “covered work” conducted by “each employee covered by” the agreement. To
implement the fringe benefit program, Article VIII of the IEM-264 Association
Agreement required IEM to “file a written report . . . setting forth the names, social
security numbers and the hours paid for each employee for whom [benefit] payments
shall have been made during said period and such other information as the fringe

                                         -3-
benefit program trustees desire.” The report, referred to as a “monthly remittance
report,” was to be submitted monthly along with IEM’s payments to the 264 Fund.
The monthly remittance report was required to be signed by an authorized employee
at IEM, and Anna Cacioppo signed on IEM’s behalf. Cacioppo certified, among other
things, that “the employees listed [on the reports] constitute all employees for whom
contributions are required under the terms of said agreements.”


      In April 2002, IEM entered a second collective bargaining agreement, this time
with Local 1290 (the “Local 1290 Agreement”). Under the Local 1290 Agreement,
IEM was required to pay benefits and to submit a similar monthly remittance report
each month. In contrast to the IEM-264 Association Agreement which required the
individual submitting reports to list “all employees for whom contributions are
required,” the reports to the 1290 Fund explicitly required IEM to “report on all
employees, union or non-union.” (Emphases added.) Again, Cacioppo prepared and
submitted the reports on IEM’s behalf.


      Following seven days of trial, the jury acquitted Plaskett of conspiracy and
bribery charges. It also acquitted Cacioppo of a mail fraud charge. However, the jury
returned guilty verdicts against Plaskett and Cacioppo on Counts 28 through 32 of the
indictment, which alleged that they violated § 1027 in connection with their
submission of monthly remittance reports to the 264 Fund. The jury also convicted
Cacioppo on Counts 33 through 38 of the indictment, which alleged that she violated
§ 1027 in connection with her submission of monthly remittance reports to the 1290
Fund.


      After trial, the district court set aside the 264 Fund-related jury verdicts and
entered judgments of acquittal in favor of Plaskett and Cacioppo with respect to those
charges. The district court found insufficient evidence that the IEM-264 Association
Agreement actually required IEM to list all employees, including non-union

                                         -4-
employees. The district court did not rule on Plaskett’s alternative motion for a new
trial. The district court denied Cacioppo’s request for a judgment of acquittal or, in
the alternative, a new trial on the charges that she violated § 1027 in connection with
her reporting to the 1290 Fund. The district court sentenced Cacioppo to 5 years’
probation for those convictions.


II.    DISCUSSION


       The Government argues that the district court erroneously granted Cacioppo
and Plaskett’s motions for judgment of acquittal on Counts 28 through 32 of the
indictment because the evidence was sufficient to sustain the jury’s verdicts. Plaskett
cross-appeals the district court’s failure to rule on his motion for a new trial as to those
counts. Cacioppo appeals her convictions on Counts 33 through 38 of the indictment.
She argues that the district court improperly instructed the jury that it could convict
Cacioppo based upon her reckless disregard for, rather than knowledge of, the falsity
of her statements or the completeness of her submissions. Cacioppo also asserts that
the jury should have been given a “good faith” instruction.


       We begin by determining the proper mens rea requirement for a conviction
under § 1027—an issue raised by Cacioppo’s cross-appeal, but which also affects our
analysis of the disposition of the Government’s appeal. We then address the various
motions for judgment of acquittal and new trial to determine whether the evidence was
sufficient for a reasonable jury to find guilt beyond a reasonable doubt under the
correct mens rea standard and, if so, whether a new trial is warranted due to
misinstruction of the jury. We view this as the appropriate method of deciding the
appeal and two cross-appeals that the parties present. See United States v. Boyd, 566
F.2d 929, 937-38 (5th Cir. 1978) (reasoning that the district court misconceived the
elements of the offense and, therefore, reviewing the evidence under the correct
standard to resolve an appeal concerning the sufficiency of the evidence).

                                            -5-
      A. Section 1027’s Mens Rea Requirement


       Section 1027 criminalizes two separate activities.1 First, § 1027 provides for
criminal penalties when any person makes in any document required to be kept for
ERISA purposes “any false statement or representation of fact, knowing it to be false”
(the “false statement prong”). Second, § 1027 provides for criminal penalties when
any person “knowingly conceals, covers up, or fails to disclose any fact the disclosure
of which is required by [title I of ERISA] or is necessary to verify, explain, clarify or
check for accuracy and completeness of any report required by such title to be
published or any information required by such title to be certified” (the “concealment
prong”).


       With respect to § 1027’s false statement prong, the district court instructed the
jury that Cacioppo and Plaskett could be found guilty if either “acted knowingly and
in the case of a false statement, with knowledge that the statement was false or with
reckless disregard for its truth or falsity.” Jury Instruction No. 34 (emphasis added).
The district court further instructed the jury that “the government must [prove] that
the defendant had knowledge that the statement was false or acted with reckless

      1
       Section 1027 states:

      Whoever, in any document required by title I of the Employee
      Retirement Income Security Act of 1974 . . . to be . . . kept as part of the
      records of any employee welfare benefit plan or employee pension
      benefit plan, or certified to the administrator of any such plan, makes any
      false statement or representation of fact, knowing it to be false, or
      knowingly conceals, covers up, or fails to disclose any fact the disclosure
      of which is required by such title or is necessary to verify, explain,
      clarify or check for accuracy and completeness any report required by
      such title to be published or any information required by such title to be
      certified, shall be fined under this title, or imprisoned not more than five
      years, or both.

                                          -6-
disregard for whether or not it was false.” Jury Instruction No. 38 (emphasis added).
With respect to § 1027’s concealment prong, the district court instructed the jury that
Cacioppo and Plaskett could be found guilty if either “acted knowingly . . . and in the
case of a concealment, cover up, or failure to disclose, without a ground for believing
his action was lawful or with reckless disregard for its lawfulness.” Jury Instruction
No. 34 (emphasis added). Concerning both prongs, the district court added that,
“[r]egardless of whether the charge involves a false statement or a concealment, cover
up, or failure to disclose a fact, however, the government need not prove that the
defendant intended to violate the law or that he had actual knowledge of his
obligations under the law.” Jury Instruction No. 38 (emphasis added). In so doing,
the district court rejected Cacioppo and Plaskett’s proffered instructions, which
omitted any reference to reckless disregard.


       Cacioppo contends that the district court should not have allowed the jury to
find guilt based solely upon a reckless disregard of the falsity of her statements or a
reckless disregard for the completeness of her reporting. The Government counters
that § 1027 has long been interpreted in a way that allows convictions based upon
reckless disregard. In this regard, the Government relies primarily upon United States
v. Tolkow, 532 F.2d 853, 858 (2d Cir. 1976) and United States v. S & Vee Cartage,
Co., 704 F.2d 914, 918-19 & n.1 (6th Cir. 1983), both of which approved § 1027
instructions that included a reckless disregard mens rea standard. We conclude that
the district court erred when it instructed the jury that reckless disregard of the falsity
of statements or completeness of reporting was a sufficient basis upon which to
convict.


      We begin with the fairly obvious observation that “reckless disregard” appears
nowhere in § 1027, as authored by Congress. We also note that the Supreme Court
has repeatedly declined opportunities to imply a mens rea requirement somewhere
between knowingly and strict liability in cases similar to the one we consider here.

                                           -7-
See, e.g., United States v. X-Citement Video, Inc., 513 U.S. 64 (1994); Liparota v.
United States, 471 U.S. 419 (1985). Nevertheless, we examine both of § 1027’s
prongs to determine what mens rea standard is appropriate.


       The least complicated issue to resolve is the proper mens rea under the false
statement prong, as the district court’s insertion of a reckless disregard mens rea
standard into § 1027’s false statement prong conflicts with the statute’s plain
language. It is well established that we commence any statutory interpretation with
the statute’s plain language. See, e.g., Watson v. Ray, 192 F.3d 1153, 1155 (8th Cir.
1999) (“When determining the meaning of a statute, our starting point must be the
plain language of the statute.”). Where the language is plain, we need inquire no
further. See, e.g., United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989)
(“Where . . . the statute’s language is plain, the sole function of the courts is to enforce
it according to its terms.”) (internal quotation omitted).


        Here, it is impossible to square the district court’s instruction that the jury could
find Cacioppo guilty of making a false statement if Cacioppo “acted with reckless
disregard for whether or not it was false” with the statute’s provision that a defendant
can be found guilty only for making a false statement “knowing it to be false.” § 1027.
A person is said to have knowledge of a fact when she “has no substantial doubt about
[its] existence.” Black’s Law Dictionary 888 (8th ed. 2004); see also Arthur Andersen
LLP v. United States, 544 U.S. 696, 705 (2005) (“‘Knowledge’ and ‘knowingly’ are
normally associated with awareness, understanding, or consciousness.”).
“Recklessness,” on the other hand, reflects something less than knowledge of a
statement’s falsity. See, e.g., 37 Am. Jur. 2d Fraud & Deceit § 120 (2006) (“A
representation is ‘reckless’ if it is made without any knowledge of the truth, or if the
person making the representation knows that he or she does not have sufficient
information or a basis to support it, or if the maker realizes that he or she does not
know whether or not the statement is true.”). We have noted this distinction

                                            -8-
repeatedly in the context of the False Claims Act, 31 U.S.C.
§ 3729(a). See, e.g., Minn. Ass’n of Nurse Anaesthetists v. Allina Health Sys. Corp.,
276 F.3d 1032, 1053 (8th Cir. 2002) (addressing the False Claims Act’s mens rea
requirement and distinguishing between whether defendants “knew” or “would have
known absent . . . reckless disregard” that bills submitted to Government would
falsely imply that certain services had been rendered). Indeed, it is clear from our
False Claims Act jurisprudence that Congress’s insertion of a reckless disregard
standard captures defendants who lacked actual knowledge. See id. Where, in the
context of representations to ERISA plans, Congress instead has elected to make
persons criminally liable only for those false statements made “knowing [them] to be
false,” we are bound to enforce the law as written.


       The concealment prong presents a more difficult issue, as the prong’s language
is susceptible to two readings. The question we must decide is whether “knowingly”
modifies only the clause addressing a defendant’s acts (that is,“knowingly conceals,
covers up, or fails to disclose”) or whether “knowingly” also modifies the
concealment prong’s second clause (“the disclosure of which is required by such title
or is necessary to verify, explain, clarify or check for accuracy and completeness any
report required by such title to be published or any information required by such title
to be certified”). In other words, we must decide whether § 1027 allows criminal
conviction only where someone “conceals, covers up, or fails to disclose” facts that
she knew she was required to disclose or whether § 1027 criminalizes the knowing
concealment, cover up or failure to disclose certain facts, regardless of whether the
defendant knew she was required to reveal, uncover or disclose them.


       We hold that the former reading is correct. In our view, Tolkow and S & Vee
Cartage—both of which allowed instructions that included a reckless disregard mens
rea standard—are in conflict with the reasoning of subsequent decisions of the
Supreme Court. For instance, in Liparota, the Supreme Court addressed the mens rea

                                         -9-
requirement of 7 U.S.C. § 2024(b)(1), which provided that “whoever knowingly uses,
transfers, acquires, alters, or possesses coupons or authorization cards in any manner
not authorized by [the statute] or the regulations” is subject to criminal penalties. 471
U.S. at 420. The question to be resolved was whether “knowingly” modified only the
use, transfer, acquisition, alteration or possession portion of the statute or if it also
modified the phrase “in any manner not authorized.” Id. at 420-21. That is, just as
in this case, “[t]he question presented [was] whether . . . the Government must prove
that the defendant knew that he was acting in a manner not authorized by statute or
regulations.” Id.


       In Liparota, the Supreme Court applied a two-step method of statutory
interpretation, first looking to the statute’s plain language and structure and, in the
absence of clear language, then attempting to infer the statute’s meaning from its
legislative history. Id. at 423. Beginning with § 2024(b)(1)’s plain language, the
Supreme Court found that, while it was clear that Congress intended to require a mens
rea of “knowingly” with respect to some act, it was unclear whether “knowingly”
applied merely to possession of the coupons and cards or whether the statute required
both knowing possession and knowledge that the possession was proscribed by law.
Id. at 424. The Court concluded that “[e]ither interpretation would accord with
ordinary usage.” Id. Because the statute’s plain language was ambiguous, the Court
then examined the statute’s legislative history. Id. It found, however, that “the
legislative history of the statute contains nothing that would clarify the congressional
purpose on this point.” Id.


       The Liparota Court then held that, absent a clear indication to the
contrary—from either the statute’s plain language or legislative history—the Court
would presume that Congress intended to apply “knowingly” to both elements of the
statute because “to interpret the statute otherwise would . . . criminalize a broad range
of apparently innocent conduct.” Id. at 425-26. Specifically, it stated that, “[a]bsent

                                          -10-
indication of contrary purpose in the language or legislative history of the statute, we
believe that § 2024(b)(1) requires a showing that the defendant knew his conduct to
be unauthorized by statute or regulations.” Id. at 425.


       Since Liparota, the Court has consistently applied this presumption to statutes
where construing the statute more broadly would criminalize otherwise innocent
conduct. See Arthur Andersen LLP, 544 U.S. at 703-74 (noting that reading a statute
to require corrupt intent “is particularly appropriate . . . where the act underlying the
conviction . . . is by itself innocuous”); Staples v. United States, 511 U.S. 600, 610
(1994) (addressing “the particular care we have taken to avoid construing a statute to
dispense with mens rea where doing so would criminalize a broad range of apparently
innocent conduct”) (internal quotation omitted); Posters ‘N’ Things, Ltd. v. United
States, 511 U.S. 513, 524 (1994) (requiring in a drug paraphernalia case “the
Government [to] establish that the defendant knew that the items at issue are likely to
be used with illegal drugs”); Ratzlaf v. United States, 510 U.S. 135, 149 (1994)
(holding in a currency transaction structuring case that “[t]o convict Ratzlaf of the
crime with which he was charged . . . , the jury had to find he knew the structuring in
which he engaged was unlawful”), superseded by statute, 31 U.S.C. §§ 5322(a), (b),
5324(c). Indeed, the Court has extended the application of “knowingly” to elements
in separate subsections of a criminal statute—that is, to phrases more remote than we
do here. See X-Citement Video, 513 U.S. at 68, 72 (reasoning that “Morisette,
reinforced by Staples, instructs that the presumption in favor of a scienter requirement
should apply to each of the statutory elements that criminalize otherwise innocent
conduct” and applying “knowingly” to the elements in each subsection of the statute,
even where the word did not appear in each subsection).


       We have followed suit in cases where a broad range of apparently innocent
conduct would be criminalized by a particular reading of an ambiguous statute’s mens
rea requirement. See United States v. Jain, 93 F.3d 436, 440 (8th Cir. 1996) (“Only

                                          -11-
conduct that is inevitably nefarious, that is, obviously ‘evil’ or inherently ‘bad,’
warrants the traditional presumption that anyone consciously engaging in it has fair
warning of a criminal violation. Thus, we agree with the district court’s decision to
instruct the jury that the government must meet a heightened mens rea burden.”)
(internal citation and quotation omitted); cf. United States v. Collins, 949 F.2d 1029,
1031 (8th Cir. 1991) (refusing to expand the reach of “knowingly” within a statute
where the defendant had reason to know that the use of explosives “is a type of
conduct that a reasonable person should know is subject to stringent public regulation
and may seriously threaten the community’s health or safety”) (quoting Liparota, 471
U.S. at 433).


       Applying Liparota’s reasoning to this case, we conclude that the Government
is required to prove both that the defendant knowingly “conceal[ed], cover[ed] up, or
fail[ed] to disclose a[] fact” that she was required to disclose and that she knew that
she was obliged to disclose it. We begin with the statute’s plain language and
structure. A comparison of the statute at issue in Liparota and the statute here shows
them to have identical structures in all relevant respects.2 The plain language of both
statutes is equally ambiguous as to whether “knowingly” applies to a defendant’s
knowledge of the requirements of the relevant regulations or statute.


       Here, however, unlike in Liparota, the statute’s structure offers one additional
clue as to congressional intent. Congress specifically provided in § 1027 that one may

      2
        Compare § 1027, providing that “whoever . . . knowingly conceals, covers up,
or fails to disclose any fact the disclosure of which is required by [title I of ERISA]
or is necessary to verify, explain, clarify or check for accuracy and completeness of
any report required by such title to be published or any information required by such
title to be certified” is subject to prosecution with § 2024(b)(1), providing that
“whoever knowingly uses, transfers, acquires, alters, or possesses coupons or
authorization cards in any manner not authorized by [the statute] or regulations” is
subject to prosecution.

                                         -12-
be convicted under the false statement prong of the statute only if the statement is
made “knowing it to be false.” On the other hand, under the Government’s reading
of § 1027’s concealment prong, a defendant could be convicted for concealing facts,
even though she was unaware that she was required by law to disclose them. Nothing
in the statute’s language, structure or history indicates to us that Congress meant to
apply different mens rea standards to two different means of violating § 1027. That
is, we see nothing indicating that Congress meant to allow conviction for affirmative
statements only when the defendant knows they are false but, at the same time, to
allow conviction for the failure to disclose facts where the defendant was unaware of
the duty to disclose them. To the contrary, in our view, the provision that false
statements are punishable only if made “knowing [them] to be false” indicates that
Congress meant to restrict the type of activity that § 1027 criminalized rather than to
write the statute as expansively as possible.


       Applying the second step of Liparota’s analysis, the legislative history here
does not indicate clearly that Congress intended to circumscribe the reach of
“knowingly” in a way that criminalized the failure to disclose certain information
where the defendant was unaware of a duty to disclose it. We acknowledge that
Tolkow addressed § 1027’s legislative history and found that the history indicated that
Congress intended § 1027 to be applied broadly, 532 F.2d at 858, but we are
unpersuaded that the legislative history requires us to read into the statute a reckless
disregard standard that appears nowhere in its text. Tolkow takes an extraordinarily
broad view of § 1027’s legislative history, noting only that § 1027 was passed with
the intent to give the Welfare and Pension Plans Disclosure Act3 “enforcement teeth.”
Id. at 858. But observing that a particular statute is meant to have teeth is not the
same as defining the extent of its bite. Congress undoubtedly intended the anti-child
pornography statute addressed in X-Citement Video to have “teeth,” as it had recently

      3
       Section 1027 was amended in 1974 to refer to ERISA rather than the WPPDA.
Pub. L. 93-406.

                                         -13-
broadened the statute’s application to regulate even more pornographic material than
did previous iterations of the statute. 513 U.S. at 74 (discussing the expansion of the
statute in 1984 to regulate materials that were not legally “obscene,” whereas an
earlier version of the bill had limited itself to actual obscenity). The Supreme Court,
however, still read the statute in a way that required a defendant to know that he was
transporting a video that depicted an actual minor. Id. at 78.


       More to the point, in lieu of Tolkow’s exceedingly broad view of the legislative
history, Liparota and its progeny require us to examine the legislative history with an
eye toward determining whether Congress made some statement particularly
addressing the intended mens rea requirement. See, e.g., X-Citement Video at 74-75
(examining legislative history regarding the intended mens rea requirement). After
our review of § 1027’s legislative history, we see nothing addressing the mens rea
requirement at all, much less indicating that Congress intended to criminalize the
failure to report certain information even where the actor was unaware of the duty to
do so. See H. R. Rep. No. 87-998, pt.4 (1962), reprinted in 1962 U.S.C.C.A.N. 1532-
1537-39, 1547. When interpreted in this fashion, the statute still has “enforcement
teeth,” but captures only those actors who deliberately conceal, cover up or fail to
disclose information that they knew they were required to reveal, uncover or disclose.


       For all these reasons, we conclude that neither the statute’s plain language nor
the statute’s legislative history clearly indicate that Congress intended to criminalize
conduct where the defendant was unaware of a duty to disclose the information
allegedly concealed. We further find that the Government’s reading of the statute
would criminalize an extraordinary amount of otherwise innocent conduct. For
instance, if a clerical employee failed to retain any document that the benefit fund later
decided it needed “to verify, explain, clarify or check for accuracy and completeness
any report required” by ERISA, she could later be held criminally liable, even though
she had no reason to suspect that she was required to create or keep the document—or,

                                          -14-
indeed, even if she had no idea of the document’s purpose. Because the
Government’s reading of the statute would criminalize apparently innocent conduct,
we apply Liparota’s presumption and conclude that Congress intended to apply
“knowingly” to both clauses of § 1027’s concealment prong.4


       We pause to address two final, but important issues. First, our holding does not
imply that a defendant must in fact know that § 1027 exists and that she is violating
it before she can be held to account in a criminal prosecution. We hold only that the
defendant must have known that she was required to disclose the information she
allegedly concealed. The Supreme Court discussed this distinction in Liparota. 471
U.S. at 426 n.9.5 Second, our decision concerning the proper mens rea requirement


      4
        Following Liparota, we have not labeled the crime in question in this case as
either a “specific” or “general” intent crime. These two categories fail to describe
adequately the possible mens rea requirements. See Liparota, 471 U.S. at 423 n.5
(“We have also recognized that the mental element in criminal law encompasses more
than the two possibilities of ‘specific’ and ‘general’ intent.”).
      5
       Differentiating between Liparota’s interpretation of § 2024(b)(1)’s mens rea
requirement and a mistake-of-law defense, the Liparota Court wrote:

      Our holding today no more creates a “mistake of law” defense than does
      a statute making knowing receipt of stolen goods unlawful . . . . In both
      cases, there is a legal element in the definition of the offense. In the case
      of a receipt-of-stolen-goods statute, the legal element is that the goods
      were stolen; in this case, the legal element is that the “use, transfer,
      acquisition,” etc. were in a manner not authorized by statute or
      regulations. It is not a defense to a charge of receipt of stolen goods that
      one did not know that such receipt was illegal, and it is not a defense to
      a charge of a § 2024(b)(1) violation that one did not know that
      possessing food stamps in a manner unauthorized by statute or
      regulations was illegal. It is, however, a defense to a charge of knowing
      receipt of stolen goods that one did not know that the goods were stolen,
      just as it is a defense to a charge of a § 2024(b)(1) violation that one did

                                          -15-
in no way affects how the Government can go about proving that the required mens
rea exists. Despite the requirement that the Government prove that a particular
defendant knowingly concealed information she knew she was required to disclose,
“knowledge can [still] be inferred from circumstantial evidence, including any
external indications” that she knew that she was required to keep or disclose the
particular information. Staples, 511 U.S. at 615 n.11; see also Ratzlaf, 510 U.S. at
149 n.19 (“A jury may, of course, find the requisite knowledge on defendant’s part by
drawing reasonable inferences from the evidence of defendant’s conduct . . . .”).


      B.   Motions for Judgment of Acquittal and New Trial


       Having decided the proper mens rea requirement under § 1027, we must decide
whether the district court appropriately decided the various post-trial motions. We
review de novo the grant of a post-trial motion for judgment of acquittal, United
States v. Hively, 437 F.3d 752, 760 (8th Cir. 2006), using the same standards used by
the district court, United States v. Monnier, 412 F.3d 859, 861 (8th Cir. 2005). Fed.
R. Crim. P. 29(a) provides that the district court “must enter judgment of acquittal of
any offense for which the evidence is insufficient to sustain a conviction.” “When
considering whether there is sufficient evidence to support a conviction, we view the
evidence in the light most favorable to the verdict, giving it the benefit of all
reasonable inferences.” Monnier, 412 F.3d at 861 (quotation omitted). A motion for
judgment of acquittal should be granted only “if there is no interpretation of the
evidence that would allow a reasonable jury to find the defendant guilty beyond a
reasonable doubt.” United States v. Gomez, 165 F.3d 650, 654 (8th Cir. 1999).


      not know that one’s possession was unauthorized.

471 U.S. at 425 n.9.


                                         -16-
           1.       Counts 28 Through 32: Monthly Remittance Reports
                    Submitted to the 264 Fund


       The district court granted Cacioppo and Plaskett’s motions for judgment of
acquittal on Counts 28 through 32 of the indictment, reasoning that there was
insufficient proof that the IEM-Local 264 Association Agreement actually required
Cacioppo and Plaskett to report the names of all workers at any work site, irrespective
of whether they were union members. We affirm the judgment of acquittal in favor
of Cacioppo, albeit for a different reason. See United States v. McCaster, 193 F.3d
930, 933 (8th Cir. 1999) (“We may affirm the judgment on any grounds supported by
the record, even if not relied on by the district court.”). However, we reverse the
judgment of acquittal in favor of Plaskett and remand for the district court to
determine if he is entitled to a new trial.


                    a.    Motions for Judgment of Acquittal


      Given our resolution of the mens rea issue above, the question we must resolve
with respect to the reporting to the 264 Fund is whether the Government presented
evidence sufficient to allow a reasonable jury to find Cacioppo and Plaskett guilty
beyond a reasonable doubt of knowingly making false statements and/or knowingly
concealing or failing to disclose facts they knew they were required to disclose.


       We briefly restate the evidence in the light most favorable to the verdict,
resolving evidentiary disputes in favor of the Government. We begin with the IEM-
264 Association Agreement. Article III of the agreement provided that the parties
“recognize[d] the Union as the exclusive bargaining agent for all employees of the
Employer performing any type of construction work which has historically and
traditionally been performed heretofore by Laborers in the geographical area of this

                                         -17-
Agreement.” (Emphasis added.) Article IV of the agreement recognized the Union
“as the sole and exclusive bargaining agent for all employees coming within the terms
of this Agreement.” (Emphasis added.) Article VIII provided that “[t]he parties
agreed to provide a fringe benefit program . . . which program is to be maintained by
contributions from employers under the terms of this Agreement and is established for
the benefit of employees of members of the Association” and that “[o]n all work
covered . . . each employer shall pay to the Fringe Benefit Program the amounts per
hour set forth in [the agreement] for each hour paid . . . to each employee covered by
this Agreement.” (Emphasis added.) Finally, Article VIII required IEM to “file a
written report . . . setting forth the names, social security numbers and the hours paid
for each employee for whom payments shall have been made during said period and
such other information as the fringe benefit program trustees desire.”


      Suzanne Clark Bradley, who managed IEM’s offices until March of 2002, was
responsible during an undefined period in 1999 for preparing and submitting the
monthly remittance reports. Bradley testified that she understood that she was
required to list all employees on the monthly remittance reports, irrespective of union
membership. Her understanding was based solely upon her reading of the IEM-264
Association Agreement. Bradley further testified that she prepared the monthly
remittance reports by running a pre-defined “Time-by-Name Report” on IEM’s
financial software. Bradley testified that Plaskett told her to remove names from the
reports she had prepared. Bradley also testified that she had a conversation with
Plaskett and his partner, Chuck Cacioppo, Jr., about the reporting:


      Q. When you were doing these reports then for . . . Plaskett, did you
      discuss how to fill out the forms, who was supposed to be on the forms,
      that kind of information?
      A. Yes, I did.
      Q. Tell us about that, please.

                                         -18-
      A. I was basically told after I did a couple of them to mind my own
      business.
      Q. Tell us about that conversation, who was there, what was the
      conversation?
      A. I had had a conversation with Don in regard to union and non union
      employees and who we were paying on and who we weren’t paying on
      and I was basically told just to keep my nose out of it.
      Q. By who?
      A. By . . . Plaskett and Chuck [Cacioppo, Jr.].

Trial Tr. Vol. II at 411:18-412:7.


       Anna Cacioppo took over the reporting duties when she began working at IEM.
Bradley did not testify that she informed Cacioppo that Cacioppo should list all
employees, irrespective of union membership. When asked whether she explained the
reporting requirements to Cacioppo, Bradley said only that she “basically showed
[Cacioppo] how [Bradley] did [the reports] in the beginning and gave [Cacioppo] the
time by name report and she was to discuss it with [Plaskett] and how he wanted to
pay.” Id. at 413:25-414:2. Bradley later testified that she “showed Anna how the
reports were to be pulled out of the computer and how [Plaskett] showed [Bradley] to
do them. And basically Anna dealt with [Plaskett] from that point forward.” Id. at
436:4-6.


      The Government also called Leslie Williams, who had been president and
business manager for Local 264 for 22 years and a trustee for the Laborers Fringe
Benefit Office Health and Welfare Fund. Williams testified that the IEM-264
Association Agreement required IEM to report and pay fringe benefits for every
employee, irrespective of union membership, from the very first day of employment.
Williams further testified that the union had field representatives who were

                                        -19-
responsible for telling employers about their responsibilities with respect to paying
fringe benefits. Williams also testified that Plaskett signed the collective bargaining
agreement on behalf of IEM. As to Cacioppo, Williams testified that he had never
met her and had no idea whether she had ever seen the collective bargaining
agreement.


        Plaskett testified that he did not list non-union employees “because the union
agreement doesn’t tell us to do that.” Trial Tr. Vol. IV at 793:14-15. He further
testified that, to meet what he perceived to be the reporting requirements, he set up on
IEM’s computer a recurring report that listed all employees working on a project.
Plaskett called it the “Time-by-Name” report. Plaskett then applied to the Time-by-
Name report a filter that eliminated the names of non-union employees. Plaskett
testified that, as soon as an employee reported that he joined the union, Plaskett then
changed the designation of that employee and IEM would begin reporting their work
on monthly remittance reports.


       Cacioppo testified that she never read any union agreement. She stated that she
prepared the report that was “memorized” on the computer. Id. at 876:23. According
to Cacioppo, the report was “called ‘264,’ something like that.” Id. at 876:24.
Referring to Cacioppo’s role in the reporting, Plaskett confirmed that Cacioppo simply
ran the Time-by-Name Report with the filters that Plaskett defined to yield only union
members’ names.


       To decide whether either defendant’s conviction can be upheld, we must first
determine whether a reasonable jury could find that IEM was required to disclose the
names of each employee on the monthly remittance reports, irrespective of union
membership. We disagree with the district court’s conclusion that no reasonable jury
could so find. IEM agreed that “[o]n all covered work herein each employer shall pay
to the Fringe Benefit Program the amounts set forth . . . for each hour paid . . . to each

                                          -20-
employee covered by this Agreement.” In the same agreement, IEM “recognize[d] the
Union as the exclusive bargaining agent for all employees of the Employer performing
any type of construction work which has historically and traditionally been performed
heretofore by Laborers in the geographical area of this Agreement.” Based upon these
two provisions alone, a reasonable jury could conclude that the employer was required
to pay benefits for every employee, irrespective of union membership. Under Article
VIII of the agreement, IEM was required to report every worker for whom benefit
payments should be made. Accordingly, a reasonable jury could conclude that every
employee, union and non-union, should have been listed on the monthly remittance
reports.


       Cacioppo’s convictions under § 1027, then, turn upon whether she knowingly
represented that all names required to be disclosed on the monthly remittance reports
had been disclosed, knowing that representation to be false, or whether she knowingly
failed to disclose employees she knew she was required to report.


       With respect to Local 264, Cacioppo was required to certify that “the employees
listed [on the reports] constitute all employees for whom contributions are required
under the terms of said agreements.” Rather than explicitly request that she list every
employee, the monthly remittance reports called for Cacioppo to make some judgment
concerning which employees IEM was required to disclose. Although we have
concluded that a reasonable jury could have determined that the IEM-264 Association
Agreement required Cacioppo to list all employees, irrespective of union membership,
no proof was presented to the jury that would even support the inference that
Cacioppo knew she was required to list every employee and then falsely certified that
she had done so. To the contrary, she testified that she had never read the agreement
and no one testified that they told her about its requirements. As such, we conclude
that there was insufficient evidence that Cacioppo knowingly made a false statement
when she certified the completeness of her reporting. For the same reasons, we also

                                         -21-
conclude that there was insufficient evidence that she knowingly concealed the names
of individuals she knew she was required to disclose. Accordingly, we affirm the
judgment of acquittal in favor of Cacioppo on Counts 28 through 32 of the indictment.


       However, under the deferential standard for reviewing jury verdicts, Plaskett’s
conviction should have been upheld. Again, we disagree with the district court’s
finding that no reasonable jury could conclude that the IEM-264 Association
Agreement required IEM to disclose the work of all employees, irrespective of union
membership. Plaskett’s conviction therefore turns upon whether there was sufficient
evidence to allow a reasonable jury to conclude that he knew that IEM was required
to disclose the identity of the non-union employees and that he nevertheless caused
Cacioppo to fail to disclose the information.6


       We hold that there was. First, Plaskett signed the IEM-264 Association
Agreement on behalf of IEM. Second, Les Williams testified that it was the union’s
practice to tell employers that they are required to pay benefits for all employees,
irrespective of union membership. Third, Bradley testified that she believed that the
names should be listed, that she discussed the reports with Plaskett, including the
distinction between union and non-union employees, and that Plaskett told her to
“keep her nose out of it.” Viewing this evidence and all reasonable inferences from
it in a light most favorable to the verdict, we find that a reasonable jury could
conclude beyond a reasonable doubt that Plaskett knew that IEM was required to list

      6
       Plaskett was charged with violating 18 U.S.C. §§ 1027 and 2. Title 18 Section
2 of the United States Code, provides in subsection (b) that “[w]hoever willfully
causes an act to be done which, if directly performed by him or another would be an
offense against the United States, is punishable as a principal.” Because this statute
“makes it unnecessary that the intermediary who commits the forbidden act have a
criminal intent,” United States v. Rucker, 586 F.2d 899, 905 (2d Cir. 1978) (internal
quotation omitted), Plaskett could be found guilty even though Cacioppo lacked the
requisite mens rea.

                                        -22-
the IEM’s non-union employees on the monthly remittance reports. The evidence also
plainly shows that Plaskett caused Cacioppo to create and submit the incomplete
monthly remittance reports. Indeed, Plaskett’s own testimony indicated that he
caused Cacioppo to file the monthly remittance reports without listing the names of
IEM’s non-union employees by virtue of the filter he programmed on IEM’s
computers that eliminated those names from the Time-by-Name Report in IEM’s
financial software. Accordingly, we reverse the district court’s judgment of acquittal
in favor of Plaskett on counts 28 through 32 of the indictment.


                    b.     Plaskett’s Motion for a New Trial


       In addition to seeking a judgment of acquittal, Plaskett also moved in the
alternative for a new trial. Although the district court granted Plaskett’s motion for
a judgment of acquittal, it failed to rule upon his alternative motion. Plaskett cross-
appeals the district court’s failure to rule in the alternative. We agree with Plaskett
that the district court erred when it failed to rule in the alternative on Plaskett’s new
trial motion. Rule 29(d)(1) of the Federal Rules of Criminal Procedure states that “[i]f
the [district] court enters a judgment of acquittal after a guilty verdict, the court must
also conditionally determine whether any motion for a new trial should be granted if
the judgment of acquittal is later vacated or reversed.” Accordingly, we remand for
the district court to rule in the first instance on Plaskett’s motion for a new trial on
Counts 28 through 32 of the indictment.


            2.      Counts 33 Through 38: Monthly Remittance Reports
                    Submitted to the 1290 Fund


      Cacioppo also appeals the denial of her motion for a new trial on Counts 33



                                          -23-
through 38 of the indictment, arguing that the jury was misinstructed.7 “Jury
instructions are adequate if, taken as a whole, they adequately advise the jury of the
essential elements of the offenses charged and the burden of proof required of the
government.” United States v. Rice, 449 F.3d 887, 895 (8th Cir. 2006) (internal
quotation and alteration omitted). As we discussed in part II.A., ante, the jury was
improperly instructed as to the appropriate mens rea requirement under § 1027.
Nevertheless, our inquiry does not end there, as “[p]roperly objected to jury
instructions are reviewed for harmless error pursuant to Fed. R. Crim. P. 52(a).”
United States v. Jacobs, 97 F.3d 275, 278 (8th Cir. 1996) (internal quotation omitted).
Any misinstruction may be harmless if the evidence of guilt is overwhelming. See,
e.g., Barnes v. United States, 777 F.2d 430, 431 (8th Cir. 1985); see also United States
v. Ferrarini, 219 F.3d 145, 154 (2d Cir. 2000) (“[A]n erroneously given conscious
avoidance instruction constitutes harmless error if the jury was charged on actual
knowledge and there was ‘overwhelming evidence’ to support a finding that the
defendant instead possessed actual knowledge of the fact at issue”).


       In this case, the Government did not argue that the alleged instructional error
was harmless, and the failure to do so waives any right to such review. Lufkins v.
Leapley, 965 F.2d 1477, 1481 (8th Cir. 1992). We may overlook the waiver and
review the record to determine whether the error was harmless, although we will “err
on the side of the criminal defendant” where the Government failed to argue harmless
error. Id. Having reviewed the record, we cannot say that the evidence offered
against Cacioppo with respect to her submissions to the 1290 Fund so overwhelmingly
shows her guilt that any error was harmless. Accordingly, we vacate the judgment




      7
       Although Cacioppo moved for a judgment of acquittal in the district court, she
did not argue in her appeal that she was entitled to a judgment of acquittal.

                                         -24-
against Cacioppo on Counts 33 through 38 of the indictment. We remand for a new
trial of these counts.8


III.   CONCLUSION


      For the foregoing reasons, we affirm the district court’s judgment of acquittal
in favor of Cacioppo with respect to Counts 28 through 32. We reverse the district
court’s judgment of acquittal in favor of Plaskett with respect to the same counts, and
we remand for the district court to consider Plaskett’s motion for a new trial on those
counts. We vacate the judgment against Cacioppo with respect to her convictions on
Counts 33 through 38 of the indictment, and we remand the case for a new trial as to
those counts.


                       ______________________________




       8
        Cacioppo also claims that the district court improperly denied Cacioppo’s
request for a “good faith” instruction. Because the remedy for the district court’s
allegedly improper refusal to give a good faith instruction would have been a new
trial—something we have already granted—we leave the issue for the district court’s
consideration during any retrial, as the appropriateness of a good faith instruction is
entirely dependent upon the evidence adduced at trial. See, e.g., United States v.
Sherer, 653 F.3d 334, 337 (8th Cir. 1981).

                                         -25-
