source: Caselaw Access Project

author: SELYA, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. John GEORGE, Jr., Defendant, Appellant.
    No. 15-1892
    United States Court of Appeals, First Circuit.
    November 7, 2016

      William J. Cintolo, with whom Thomas R. Kiley and Cosgrove Eisenberg & Kiley, PC, Boston, MA, were on brief, for appellant.
    Ryan M. DiSantis, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.
    Before HOWARD, Chief Judge, SELYA and KAYATTA, Circuit Judges.
   SELYA, Circuit Judge.

It is familiar lore that in Lord Acton’s words, “[p]ower tends to corrupt, and absolute power corrupts absolutely.” John Emerich Edward Dalberg-Acton, Historical Essays and Studies (1907). The circumstances of this case remind us of that venerable precept.

Here, the government charges that the defendant—an entrenched political satrap—used his political clout to divert federal funds granted to a state agency and, in the bargain, transgressed federal criminal law. A jury agreed and found the defendant guilty on charges of conspiracy and embezzlement from a federally funded organization. See 18 U.S.C. §§ 371, 666(a)(1)(A). The district court sentenced the defendant to a 60-month term of im-murement on the conspiracy count and a 70-month term of immurement on the substantive offense count,(to run concurrently). As part of the sentence, the court directed the defendant- to make restitution in the amount of $688,772, Later, the court ordered the defendant to. forfeit an additional $1,382,214 in ill-gotten gains.

In this- appeal, the defendant strives to challenge his conviction, his sentence, and the forfeiture order. After careful consideration of his asseverational array, we conclude that his variegated challenges to his conviction are without merit. We also reject his four claims of sentencing error, including one—a challenge to a position-of-trust enhancement—that requires us to address a question of first impression in this circuit. Finally, .we do not reach his challenge to the substance of the forfeiture order because we conclude that the district court lacked jurisdiction to enter that order. Accordingly, we affirm his conviction and sentence, vacate the forfeiture order, and remand so that, once jurisdiction has reattached, the district court may address the question of forfeiture anew.

I. BACKGROUND

“We rehearse the facts in thé light most hospitable to the verdict, consistent with record support.” United States v. Maldonado-Garcia, 446 F.3d 227, 229 (1st Cir. 2006). In the process, we draw all reasonable inferences from the evidence in favor of the verdict. See id.

Defendant-appellant John Geqrge, ■ Jr., operated a bus system on behalf of a regional transit authority funded by the Commonwealth of Massachusetts and the federal government. This authority, known as the Southeast Regional Transit Authority (SRTA), is the governmental body responsible for providing transportation to certain cities and towns in southeastern Massachusetts. SRTA is strictly administrative: although -it owns the buses, facilities, and equipment used to run the system, it .does not itself operate any buses. Instead, SRTA contracts with a private entity that uses- SRTA’s resources to operate and maintain the bus system. SRTA’s advisory board, composed of representatives of the municipalities that it serves, selects this entity.

From 1980 to 1988, the defendant, a former Dartmouth selectman, served on SRTA’s advisory board. In 1988—after being elected to the Massachusetts House of Representatives—he resigned from that advisory board. Simultaneously, he arranged for his friend and political ally, Joseph Cosentino, to replace him.

The defendant resigned from the legislature three years later and purchased Union Street Bus’Company (USBC). The defendant effected this purchase through a corporation known as Trans-Ag Management, Inc. (Trans-Ag). The defendant was the sole owner and sole employee of Trans-Ag, and—aside from paying the defendant’s salary and contributing to his pension—Trans-Ag’s only function was to serve as the nominal owner of USBC.

At the time of the purchase, USBC had a contract to operate the SRTA bus system through 1995. After the defendant assumed control of USBC, the contract was thrice renewed, the last renewal (for a five-year term) occurring in 2006 (the Agreement). The evidence of record supports an inference that the defendant maneuvered his way into the Agreement through collusion with Cosentino (by then, the defendant had lost the crucial support of the City of Fall River, purportedly over his refusal to hire one of the mayor’s cronies, and felt threatened by competition for the contract from a national company). Among other things, the defendant brought in a high bidder to . make his own bid appear more attractive and furnished Cosentino with questions meant to discredit his main competitor’s bid.

Under the Agreement, USBC’s expenses were, in effect, paid by SRTA with public funds: the Agreement bound SRTA to pay USBC the difference between USBC’s operating expenses and USBC’s operating income. Revenue from bus fares was USBC’s exclusive source of operating income; its operating expenses included payroll, exclusive of the salaries of its corporate officers. In practice, this exclusion applied only to the defendant, as USBC had no other corporate officers. Withal, the Agreement specifically named the defendant as USBC’s general manager, and SRTA separately paid USBC a management fee that gradually rose from $199,714 for 2006 to $266,711 for 2010. SRTA required preapproval of any capital expenditures proposed by USBC and funded approved expenditures as a distinct line item.

The proof adduced at trial indicated that the defendant misused USBC’s funds (reimbursed by SRTA) in several respects. Three instances involved paying individuals for full-time USBC jobs while they worked instead for the defendant’s (unrelated) personal business, a farm. Some details follow.

In 2010, USBC paid Sandra Santos, the defendant’s girlfriend, approximately $100,000 in total compensation (reimbursed by SRTA). At that time, Santos was employed by USBC as either an “administrative assistant” or “assistant administrator” (the record is inconclusive as to which title obtained). In any event, she was only sporadically at her office between 2005 and 2011: though USBC’s office hours were 8:00 a.m. to 4:30 p.m., she typically appeared only “once or twice a week, if at all” in the summertime. A USBC employee testified that he could not recall Santos ever having worked her allotted forty-hour week. By like token, workers at the defendant’s farm testified to her daily (though not continuous) presence at the farm stand, where she worked as a supervisor, frequently during USBC’s regular business hours. The evidence at trial permitted a finding that, from May to September of 2010, Santos was absent from her job at USBC for 370.25 hours, costing USBC (and, thus, SRTA) $17,772.

Roy Rocha, a night supervisor at USBC and a long-time friend of the defendant, would routinely abandon his shift shortly after arriving and take a company car to work at the defendant’s farm or do personal chores for the defendant. Rocha’s sole compensation for this work was his USBC salary (reimbursed by SRTA). In 2010, the cost of that salary (including benefits) was approximately $90,000.

The record tells a similar tale with respect to Ronald Pacheco, a USBC mechanic. The defendant would peremptorily summon Pacheco from his USBC duties to do repairs at the farm. Additionally, Pacheco sanded and painted tractor parts belonging to the farm at the SRTA-owned garage using SRTA-owned equipment during his USBC shift. At USBC, the farm came first: when Pacheco’s immediate superior (Al Fidalgo) asked to postpone Pacheco’s assistance on a farm job to focus on urgent bus repairs, the defendant called Fidalgo’s supervisor and insisted that Pacheco be sent to the farm forthwith.

There was more. In early 2006, USBC paid $10,000 in SRTA-reimbursable funds to Sousa Construction, ostensibly for terminal repairs. However, USBC’s maintenance supervisor testified that he knew of no work done by Sousa Construction for USBC during that period. In addition, there was evidence that Santos and.the defendant were then discussing remodeling the kitchen at the defendant’s home, and that a Sousa Construction truck was seen there.

Other examples of the defendant’s misuse of SRTA resources populate the record. For instance, the defendant used SRTA trucks to plow snow at both his home and his farm. So, too, SRTA equipment for repairing air conditioning systems on buses was used by Pacheco at the defendant’s farm. What is more, the defendant had Pacheco (during his USBC shift) install a SRTA-owned video surveillance system at the farm.

From the defendant’s standpoint, matters began to unravel when Cosentino, having assumed the SRTA administrator post, got religion. He began pushing back (albeit gently, at first) against inappropriate uses of SRTA resources. When Cosen-tino went further and advertised the upcoming contract renewal in a national magazine, the defendant threatened to have him fired—a threat that materialized in September of 2010. Despite Cosentino’s firing, SRTA awarded a new contract to a rival firm, thus ending the defendant’s reign.

An investigation ensued. As a result, a federal grand jury- indicted the defendant on August 5, 2014. The indictment charged the defendant with embezzling from an organization that receives federal funds, see 18 U.S.C. § 666(a)(1)(A), and conspiracy to commit an offense against the United States, see hi. § 371. After a nine-day trial, the jury convicted the defendant on both counts.

On July 29, 2016, the district court sentenced the defendant to a 70-month term of immurement on the embezzlement count and a 60-month term of-immurement on the conspiracy count (to run concurrently). The court ordered the defendant to pay restitution in the amount of $688,772. With the consent of both parties, the court reserved the question of forfeiture.'

The court entered its written judgment on July 30, 2015, immediately after denying the defendant’s post-trial motion for judgment of acquittal. See Fed. R. Crim. P. 29(c). The defendant filed his notice of appeal the following day.

On August 13, 2015—while this appeal was pending—the district court held a hearing. On September 21, 2015, the court amended its judgment to direct that the defendant forfeit $1,382,214. The defendant did not file a second notice of appeal.

II. ANALYSIS

The defendant raises a gallimaufry of issues implicating his conviction, his sentence, and the forfeiture order. We deal sequentially with the more substantial of these issues. The defendant’s other arguments are insufficiently developed, patently meritless, or both. As to those arguments, we simply reject them out of hand, without further elaboration.

A. Sufficiency of the Evidence.

The defendant’s flagship claim challenges the sufficiency of the evidence. With respect to this challenge, we review the denial of his motion for judgment of acquittal de novo. See United States v. Chiaradio, 684 F.3d 265, 281 (1st Cir. 2012). Our basic inquiry is “whether, after assaying all the evidence in the light most amiable to the government, and taking all reasonable inferences in its favor, a rational factfinder could find, beyond a reasonable doubt, that the prosecution successfully proved the essential elements of the crime.” Id. (quoting United States v. O’Brien, 14 F.3d 703, 706 (1st Cir. 1994)).

In this case, the government had to prove beyond a reasonable doubt that the defendant was acting as an agent on behalf of a state agency or organization; that he embezzled, stole, obtained by fraud, knowingly converted, or intentionally misapplied $5,000 or more of property belonging to or under the care, custody, or control of that agency or organization; and that the agency or organization received, in any one-year period, more than $10,000 in federal assistance. See 18 U.S.C. § 666. The defendant concedes that he worked on behalf of SRTA; that SRTA was (and is) a state agency or organization within the purview of the statute; and that it received more than $10,000 in federal assistance during each of the years in question. The question reduces, then, to the sufficiency of the government’s proof of the second element.

With respect to this element, the defendant asserts that the government did not prove that the salaries of his helpmeets were embezzled, stolen, obtained by fraud, knowingly converted, or intentionally misapplied. He makes this assertion in the face of abundant evidence that these individuals were routinely absent from USBC’s premises during their normal working hours and were instead toiling at the defendant’s farm. In the defendant’s view, evidence of absence from the workplace is meaningless without evidence that the individuals were not getting their jobs done. After all, he surmises, they could have been doing their USBC work elsewhere or at other times.

We do not agree. Several witnesses testified to the work patterns of Santos, Rocha, and Pacheco, and the jury was well-situated to determine whether it was plausible that employees who worked a pittance of hours at USBC’s offices while regularly laboring at the defendant’s farm during ordinary business hours actually performed the USBC jobs for which they were being paid. The jury decided that it was not plausible, and we think that the record supports such an inference. See, e.g., United States v. Ransom, 642 F.3d 1285, 1291 (10th Cir. 2011); United States v. Sanderson, 966 F.2d 184, 186-87 (6th Cir. 1992).

In a variation on this theme, the defendant contends that employee salaries cannot be the res purloined under section 666 because the statute carves out a safe harbor for “bona fide salary” payments. 18 U.S.C. § 666(c). But this contention sweeps too broadly and promotes an interpretation of “bona fide salary” that would swallow the statute in a single gulp. Were this the law, a fraudster would only have to structure his loot as salary to evade prosecution. We hold, consistent with the plain language and evident purpose of the statute, that “bona fide salary” means salary actually earned in good faith for work done for the employer. See United States v. Baldridge, 559 F.3d 1126, 1139 (10th Cir. 2009) (holding that work paid for by a county but done at a county official’s private residence could not be a “bona fide wage”); United States v. Valentine, 63 F.3d 459, 465 (6th Cir. 1995) (rejecting bona fide salary defense under circumstances analogous to those present in the case at hand). Whether wages are bona fide is ordinarily a question of fact for the jury, see United States v. Cornier-Ortiz, 361 F.3d 29, 36 (1st Cir. 2004), and this case is no exception: the jury reasonably could have found that the salaries of USBC employees who were not only routinely absent from their posts during business hours' but were also working at other jobs were not bona fide.

The defendant has one last shot in his sling. Noting that the government did not offer proof that the misused funds were spent on an “otherwise legitimate purpose,” he argues that he could not be convicted under an intentional misapplication theory. This argument depends on a highly technical reading of our decision in Cornier-Ortiz, 361 F.3d at 36-37—but it is a reading with which we need not grapple. The indictment did not charge solely an intentional misapplication theory, nor was the jury instructed solely on such a theory. Rather, the indictment charged, and the court instructed the jury, in terms of all five potential means of violating section 666(a)(1)(A). Consequently, the jury’s finding of guilt did not depend on a finding that the defendant intentionally misapplied the salaries in question. See United States v. Hernandez-Albino, 177 F.3d 33, 40 (1st Cir. 1999) (“When the government alleges in a single count that the defendant committed the offense by one or more specified means, the Supreme Court has ‘never suggested that in returning general verdicts in such cases the jurors should be required to agree on a single means of commission....’” (quoting Schad v. Arizona, 501 U.S. 624, 631, 111 S.Ct. 2491, 115 ' L.Ed.2d 555 (1991))).

The defendant next submits that the government never proved that he embezzled $10,000 to remodel his kitchen. In this regard, he calumnizes the government for not calling the construction company owners as witnesses notwithstanding its suggestion to the court (when the. record of the $10,000 expenditure was admitted into evidence) that it would do so.

The pertinent facts are straightforward, The evidence shows that $10,000 was paid to Sousa Construction, purporting to be for repairs at SRTA terminals. USBC’s maintenance supervisor, however, testified that he did not know of any wdrk done by Sousa Construction at any SRTA terminal during the relevant time frame. The evidence further shows that—at about the time the check was issued—the defendant was discussing his kitchen renovation plans, and a Sousa Construction truck was spotted at his home. Though there is no smoking gun, there are matching bullet holes. Cf. United States v. Piper, 298 F.3d 47, 59 (1st Cir. 2002) (“[T]he government may satisfy-its burden of proof ‘by either direct or circumstantial evidence, or by any combination thereof.’ ” (quoting United States v. Gifford, 17 F.3d 462, 467 (1st Cir. 1994))). On this record, a rational jury could have concluded beyond a reasonable doubt that the $10,000 payment was for the defendant’s personal kitchen renovations.

The defendant battles on, alleging that the government failed to prove that the use of equipment, such as SRTA plows or other resources, violated section 666 because (i) such uses were allowed by the Agreement, (ii) the government did not prove either the. dates on which these events occurred or the monetary values assigned to each event, and (iii) the events, eyen if aggregated, could not cross the $5,000 statutory, threshold. These allegations lack force. .

For one thing, if challenged conduct is in fact illegal, a contract provision cannot ratify that conduct. See United States v. Mardirosian, 602 F.3d 1, 7 (1st Cir. 2010). For another thing, even without specific dates or precise values, evidence of the misuse of resources was relevant to the charged conspiracy. See, e.g„ Sanderson, 966 F.2d at 189. And at any rate, the district court rejected a proposed jury instruction requiring unanimity as to what property constituted the $5,000 necessary to cross the statutory threshold. The defendant has not challenged that ruling on appeal and, therefore, any argument on this point is waived. See DeCaro v. Hasbro, Inc., 580 F.3d 55, 64 (1st Cir. 2009). Since the statutory threshold is comfortably exceeded by either the bogus salaries or the wayward kitchen remodeling payment alone, the cost of the other items is irrelevant. See United States v. Cruzado-Laureano, 404 F.3d 470, 484-85 (1st Cir. 2005) (holding that two transactions totaling over $5,000 were sufficient for conviction under section 666 even if other potentially illegal transactions were ignored).

The defendant’s final assault on the sufficiency of the evidence is a dead letter. The government alleged, among other things, that the defendant illegally sought a pension funded by SRTA and attempted to boost that pension by giving himself a generous raise in the final year of the Agreement. Before us, the defendant complains that the government’s proof of these allegations was too thin.

Here, however, the district court eschewed any mention of the pension in its charge to the jury, and the government only obliquely alluded to it in its closing argument. Given the other evidence that we have discussed, the pension and salary increase were immaterial to the jury’s verdict. Thus, any error in the admission of the evidence was manifestly harmless. See, e.g., United States v. Sasso, 695 F.3d 25, 29 (1st Cir. 2012).

B. Constructive Amendment.

The defendant claims that a constructive amendment of the indictment took place at trial. “A constructive amendment occurs ‘ “when the charging terms of the indictment are altered” at trial so that they are different from those handed up by the grand jury.’ ” United States v. Muñoz-Franco, 487 F.3d 25, 64 (1st Cir. 2007) (quoting United States v. Rodríguez, 215 F.3d 110, 118 (1st Cir. 2000)). Because this claim was not made below, our review is for plain error. See United States v. Brandao, 539 F.3d 44, 57 (1st Cir. 2008). That review “entails four showings: (1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant’s substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings.” United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).

There was no error in this respect, plain or otherwise. The jury convicted the defendant on exactly the same charges as were laid out in the indictment, which alleged in essence that the defendant misused SRTA funds and resources for his private benefit. In light of this congruence between the crimes charged and the proof at trial, the claim of constructive amendment necessarily fails. See United States v. DeCicco, 439 F.3d 36, 47 (1st Cir. 2006).

In an effort to blunt the force of this reasoning, the defendant insists that the government’s emphasis gradually shifted from one means of violating section 666(a)(1)(A) to other means of violating that statute. But this insistence rings hollow. Where, as here, all of the means of violating the criminal statute are properly charged and that broad charge is not limited by a subsequent stipulation, the government’s mid-trial decision to shift its emphasis from one means to another does not constitute a constructive amendment of the indictment. See id. at 45-46.

C. Jury Instructions.

Next, the defendant claims that the district court erred in instructing the jury on mens rea. When—as in this instance—a party advances a preserved claim “that the court omitted a legally required instruction or gave an instruction that materially misstated the law, our review is de novo.” United States v. De La Cruz, 835 F.3d 1, 12 (1st Cir. 2016)].

As said, there are five means through which section 666(a)(1)(A) may be violated. For two of them, the statute expressly states the necessary mens rea: to “knowingly convertí ]” or “intentionally mi-sappl[y].” 18 U.S.C. § 666(a)(1)(A). The statute is silent, however, as to the necessary mens rea for a conviction premised on one of the other three means (stealing, embezzling, or obtaining by fraud). Faced with this uneven statutory terrain, the court below instructed the jury on the meanings of “knowingly” and “intentionally,” and then added that stealing means “to take someone else’s money or property without the owner’s consent with the intent to deprive the owner of the value of that money or property”; that embezzlement “means to intentionally take ... [the] money or property of another after that money or property lawfully came into the possession of the person taking it by virtue of some office, employment!,] or position of trust”; and that obtaining by fraud “means to intentionally take something by false representations, suppression of the truth[,] or deliberate disregard for the truth.”

The defendant argues that these instructions were deficient because the three statutorily unmodified acts (stealing, embezzling, and obtaining by fraud) all require a willful mens rea, which he defines as a “criminal, evil intent.” The defendant cites no authority for his ipse dixit that these offenses always require an explicit willfulness instruction. More important, his-position defies common sense: the terms “steal,” “embezzle,” and “obtain by fraud” by their very nature imply a nefarious intent. See, e.g., United States v. Kucik, 909 F.2d 206, 212 (7th Cir. 1990) (recognizing that there is a “presumption evident in ordinary English usage that when one steals one does so with ill purpose”).

Here, the district court’s instructions clearly conveyed the criminal quiddity of these terms. Consider, for example, its instruction (with respect to stealing) that when one “inten[ds] to deprive” another of property, he does not do so innocently. So, too, the court’s instruction with respect to obtaining by fraud made it pellucid that such means included “tak[ing] something by false representations, suppression of the truth[,] or deliberate disregard for the truth.”

To say more on this point would be supererogatory. We hold that the district court’s instructions sufficiently covered the miens rea necessary to convict. No magic words were required.

D. Sentencing.

The defendant musters a panoply of claims of sentencing error. He submits that the district court incorrectly calculated the amount of loss attributable to the crimes of conviction and applied unfounded sentencing enhancements for sophisticated means, abuse of a position of trust, and role in the offense. Since these claims were preserved below, we review de novo “the sentencing court’s interpretation and application of the sentencing guidelines, assay the court’s factfinding for clear error, and evaluate its judgment calls for abuse of discretion.” United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir.), cert. denied, — U.S. -, 136 S.Ct. 258, 193 L.Ed.2d 191 (2015).

1. Amount of Loss. The defendant’s challenge to the sentencing court’s loss calculation is easily dispatched. He maintains that the loss amount used in determining his guideline sentencing range wrongly included the salaries of Santos and Rocha as well as the $10,000 allegedly spent on the defendant’s personal kitchen renovations, Each of these items, the defendant says, was insufficiently proved at triak

This is old hat. We already have explained that the evidence was more than adequate to prove the challenged salaries and kitchen renovation payments. See su^ pra Part 11(A). It follows that this claim of sentencing'error is hopeless.

2. Sophisticated Means. The district court enhanced the defendant’s offense level by two levels for his employment of sophisticated means in the commission of the crimes, see USSG § 2Bl.l(b)(10)(C), citing the defendant’s use of a shell company (Trans-Ag). In terms, a sophisticated means enhancement is warranted when a defendant has devised “especially complex or ... intricate” methods of executing or concealing an offense. See USSG § 2B1.1, cmt. n.9(B). The commentary to the sentencing guidelines identifies the use of “corporate shells” as a prototypical example of the type of sophisticated means that may give rise to the enhancement. See id. The district court found that Trans-Ag was just such a corporate shell.

The defendant demurs. He argues here, as he did below, that Trans-Ag is not a shell company but, rather, is merely a holding company, necessitated by the structure of the Agreement.

The district court heard the parties’ conflicting arguments on this point and considered evidence as to both the nature of Trans-Ag and the requirements of the Agreement. The court did not clearly err in finding that Trans-Ag was a shell company, not merely a holding company. As we have said, “where there is more than one plausible view of the circumstances, the sentencing court’s choice among supportable alternatives cannot be clearly erroneous,” United States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990).

The short of it is that the defendant’s scheme to defraud SRTA was both complex and intricate, and his insertion of Trans-Ag into the mix was just one manifestation of this complexity. It is, moreover, clear that he used Trans-Ag both to facilitate and -to help to conceal his perfidy. We conclude, without serious question, that the defendant’s - challenge to the sophisticated means enhancement fails: -

3. Position of Trust. The defendant’s next plaint relates" to 'the two-level enhancement imposed by the district court for abuse of a position of trust. See USSG § 3B1.3. To justify this enhancement, a sentencing court must find that the defendant held a position of public or private trust and" that he used .the position to facilitate or conceal his offense. See United States v. Pacheco-Martinez, 791 F.3d 171, 178 (1st Cir. 2015). Here, the district court found that the defendant, as the person in charge of the affairs of a closely held corporation (USBC), occupied a position of trust with respect to ■ SRTA and used that position to facilitate his embezzlement of SRTA’s funds and resources.

Abuse is manifest, so the issue is whether the district court supportably found that the defendant occupied a position of trust at all. The defendant assails the district court’s reasoning, declaring that his “status as an outside contractor” is not “a per se position of public or private trust.” That is true as far as it goes—but it does not take the defendant very far. The court did not rely on a per se rule. Instead, it found that, on this record, the defendant, as the president of a contractor, occupied a position of trust vis-h-vis SRTA. In reviewing that finding, our analysis must proceed from the perspective of the victim. See id. at 178-79; United States v. Chanthaseng, 274 F.3d 586, 589 (1st Cir. 2001).

This court has not yet considered whether—or under what circumstances—a high-ranking employee óf a government contractor can be said to occupy a position of trust vis-á-vis a defrauded government entity. Still, we do not write on a pristine page. Other courts have recognized that a defendant can be found to have occupied (and abused) a position of trust vis-á-vis the government when he misuses public funds through a combination of control over a government contractor and a lack of government oversight; See, e.g., United States v. Robinson, 198 F.3d 973, 978 (D.C. Cir. 2000); United States v. Wright, 160 F.3d 905, 911 (2d Cir. 1998); United States v. Glymph, 96 F.3d 722, 728 (4th Cir. 1996). This construct recognizes a real world problem: individuals controlling government contractors sometimes grow so cozy with the contracting agency that they are allowed to exercise substantial discretionary authority over government funds without any semblance of meaningful oversight. In other words, a government agency sometimes may rely too heavily on a high-ranking employee of a contractor and thereby place that individual in a position of special trust.

To warrant the application of the position-of-trust enhancement in such circumstances, a defendant first must have both substantial control and significant "discretion over the affairs of the government contractor. See Robinson, 198 F.3d at 978; Wright, 160 F.3d at 911. This is consistent with our case law, which teaches that “the requirement of managerial or professional discretion is ‘paramount’ ” in regard to the position-of-trust enhancement. United States v. Sicher, 576 F.3d 64, 76 (1st Cir. 2009) (quoting Chanthaseng, 274 F.3d at 589)

Of course, application of this enhancement may be supported by a showing that the government agency placed special trust and confidence in the defendant. Courts have treated a lack of supervision over the use of government funds as a proxy for a showing that the government agency placed special trust and confidence in the defendant. To conduct this aspect of the inquiry, a court must ask “whether the victim reposed additional trust in the defendant by ceding its ability to confirm compliance with the contract, thus relying more heavily on the honesty of the defendant than an ordinary party to a contract would.” United States v. Nathan, 188 F.3d 190, 206 (3d Cir. 1999).

Applying this reasoning, courts have found positions of trust when, for example, the government allowed a defense contractor to self-certify that its shipments met the government’s specifications, see Glymph, 96 F.3d at 728; when the defendant ran a school on behalf of a public school system with no corresponding oversight of the school’s financial records and little oversight of its operations, see Robinson, 198 F.3d at 978; and when a government agency entrusted a coin supplier with carte blanche authority over substantial amounts of coins belonging to the agency, see United States v. Boyle, 10 F.3d 485, 489 (7th Cir. 1993). In each of these cases, the agency imbued the defendant with broad power over the use of public funds through reduced oversight; and the use of that power to facilitate or control criminal activity, by a person who had control over the government contractor, was found to be an abuse of a position of trust. See Robinson, 198 F.3d at 978; Glymph, 96 F.3d at 728; Boyle, 10 F.3d at 489.

United States v. Nathan is a representative case. See 188 F.3d at 207. There, the Third Circuit affirmed a finding that the president of a defense contractor held a position of trust vis-á-vis a government agency, noting that he “held the highest position in the company,” owned a controlling interest in the company, determined how his company “would fill the government contracts,” and yet was allowed to operate without any effective governmental check on whether his company’s work met government specifications because the government agency never appointed a quality assurance representative to monitor the contractor’s performance. See id. at 206-07.

The record in this case shows beyond hope of contradiction that the defendant dominated USBC. Indeed, his iron-fisted control is open-and-shut. He was the sole owner of Trans-Ag (the shell company that, in turn, owned USBC); he served as USBC’s president (indeed, he was its sole corporate officer); and he exercised virtually unfettered control over USBC’s operations, including personnel and finances.

So, too, the record is replete with evidence from which a factfinder reasonably could infer that SRTA reposed special trust in the defendant. Thanks to his political connections, USBC’s performance was subjected to almost no oversight by SRTA. According to testimony at trial, the defendant “had exclusive and sole responsibility for” USBC’s employees. He also had exclusive and sole responsibility for USBC’s performance of a cost-plus contract in circumstances in which the contracting government agency had no idea which employee was doing what work. What is more, SRTA’s lax financial monitoring allowed him to pay USBC employees with public funds to work on his private business and to use public funds to pay for his kitchen renovations. That the defendant held sway over SRTA is evident from the fact that— in violation of the Agreement—he was able to rebuff without consequence an auditor sent by SRTA to inspect USBC’s records. Similarly, Cosentino admitted that when the defendant gave unsatisfactory explanations for questionable expenses, SRTA “would do nothing because of [Cosentino’s] association and relationship with” the defendant.

In sum, the defendant’s control over USBC was coupled with a lack of meaningful government oversight over USBC. This scenario ensured that SRTA ceded to the defendant its responsibility to oversee the use of public funds. See id. at 206. The upshot was that—as 'the district court sup-portably found—SRTA effectively placed the defendant in a position of trust. Viewed against this backdrop, the district court did not clearly err in finding that the defendant held and abused a position of trust with respect to SRTA.

4. Role in the Offense. The district court enhanced the defendant’s offense level by four additional levels, finding that-he was the organizer and leader of a criminal enterprise that included five or more participants. See USSG § 3Bl.l(a). The defendant challenges this enhancement, quarreling with the court’s assessment of the size of the enterprise.

The sentencing guidelines call for a four-level enhancement when “the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive.” Id. To qualify as a participant, a person must be criminally responsible for the commission of the offense, but need not be either prosecuted for or convicted of the offense. See id. cmt. n.1; United States v. Bey, 188 F.3d 1, 10 (1st Cir. 1999). Since the defendant himself counts as one of the five participants, the court must identify at least four other participants to satisfy the numerosity requirement. See United States v. Tejada-Beltran, 50 F.3d 105, 113 n.9 (1st Cir. 1995).

The court below based the enhancement on a finding that the defendant (at a minimum) directed the actions of Santos, Rocha, Cosentino, Louis Pettine (Cosentino’s predecessor as SRTA administrator), David Peixoto (USBC’s comptroller), and Steven Robinson (USBC’s outside accountant). Inasmuch as we conclude that the numerosity requirement is satisfied by the district court’s findings with respect to the defendant, Santos, Rocha, Peixoto, and Co-sentino, we limit our discussion to those individuals.

That the defendant himself was a participant requires no elaboration. In addition, there was no clear error in finding Santos and Rocha to be participants. As explained above, see supra Part 11(A), those two individuals accepted salaries funded by SRTA for work they did not do and, thus, knowingly furthered the criminal enterprise. See United States v. McCormick, 773 F.3d 357, 360 (1st Cir. 2014).

Nor was there clear error in naming Peixoto as a participant. After all, there was ample evidence that he abetted the defendant’s corrupt activities (for example, he sent a USBC technologist to the defendant’s farm to investigate how SRTA-fund-ed surveillance cameras could be installed at the farm stand). Moreover, Peixoto admitted to the grand jury that he willfully “failed to disclose to federal auditors that USBC employees ... were absent from USBC during work hours and instead were working at [the defendant’s fjarm.” To cinch matters, he tried to cover up what had happened by “shredd[ing] USBC records and other documents around the time that [the defendant] lost the SRTA contract.” No more was needed to ground the finding that Peixoto was a participant. See United States v. Starks, 815 F.3d 438, 441 (8th Cir. 2016) (holding that an “individual only needs to give ‘knowing aid in some part of the criminal enterprise’ ” to be considered a participant (quoting United States v. Hall, 101 F.3d 1174, 1178 (7th Cir. 1996))).

Finally, we discern no clear error in the district court’s conclusion that Cosentino participated in the criminal activities. When the defendant was competing for the Agreement, Cosentino assisted him in undermining other bidders and said nothing to his fellow advisory board members about the defendant’s machinations. In return, the defendant arranged for him to succeed Pettine as SRTA administrator. In that capacity, Cosentino turned a blind eye to the defendant’s use of SRTA resources for improper purposes. These actions give rise to an inference of complicity sufficient to ground a finding that Cosentino was a participant in the criminal activities. See McCormick, 773 F.3d at 360; see also United States v. Al-Rikabi, 606 F.3d 11, 14 (1st Cir. 2010) (describing participants as “complicit individuals”).

That ends this aspect of the matter. We discern no clear error in the district court’s imposition of the four-level role-in-the-offense enhancement.

E. Forfeiture.

The last leg of our journey takes us to the forfeiture order. The defendant assigns error; the government counters that we lack appellate jurisdiction over this assignment of error.

The background facts are undisputed. Following its pronouncement of sentence, the district court entered judgment on July 30, 2015. That judgment did not contain any dispositive provision with respect to forfeiture, but it did note that the court was deferring any decision on forfeiture “with the consent of the parties.” The next day, the defendant filed his notice of appeal.

While the appeal was pending, the district court (on September 21, 2015) purposed to enter an amended judgment, which for the first time included an order of forfeiture. The defendant neither amended his notice of appeal nor served a new notice of appeal. Over three months later, the defendant submitted his opening brief on appeal. In it, he attempted for the first time to challenge the forfeiture order.

The government argues that the forfeiture order is not properly before us: in its view, the defendant’s failure to file a new notice of appeal after the entry of the forfeiture order deprives us of jurisdiction to review that order. See, e.g., United States v. Casas, 999 F.2d 1225, 1232 (8th Cir. 1993). There is, however, an antecedent question that must be answered. Although neither party challenges the district court’s jurisdiction to enter its forfeiture order, we have an independent obligation to explore that issue. See One & Ken Valley Hous. Grp. v. Me. State Hous. Auth., 716 F.3d 218, 224 (1st Cir. 2013). Our review of the district court’s implicit conclusion that it possessed subject-matter jurisdiction to enter the forfeiture order is de novo. See United Seniors Ass’n, Inc. v. Philip Morris USA, 500 F.3d 19, 23 (1st Cir. 2007).

The question that concerns us is whether the pendency of the defendant’s notice of appeal divested the district court of jurisdiction to enter the forfeiture order. In answering that question, we start with the abecedarian principle that once a notice of appeal is filed, the district court is divested of “authority to proceed with respect to any matter touching upon, or involved in, the appeal.” United States v. Brooks, 145 F.3d 446, 455 (1st Cir. 1998) (quoting United States v. Mala, 7 F.3d 1058, 1061 (1st Cir. 1993)). This principle “derives from the notion that shared jurisdiction- almost always portends a potential for conflict and confusion.” Id. at 456. Accordingly, shared jurisdiction is limited to a “circumscribed cluster of situations, the handling of which is not inconsistent with the prosecution of an appeal.” Id.

We need not tarry. The defendant’s notice of appeal was filed on July 31,2015. At that moment, the district court was divested of jurisdiction regarding “any matter touching upon, or involved in, the appeal.” Brooks, 145 F.3d at 455 (quoting Mala, 7 F.3d at 1061); see Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct 400, 74 L.Ed.2d 225 (1982) (per curiam) (explaining that “a notice of appeal ... divests the district court of its control over those aspects of the case involved in the appeal”). This proscription extended to the court’s attempt to introduce into the judgment, for the first time, a forfeiture order. See United States v. Pease, 331 F.3d 809, 816 (11th Cir. 2003).

A close analogy is found in our recent decision in United States v. Maldonado-Rios, 790 F.3d 62 (1st Cir. 2015) (per cu-riam). There, we held that the district court lacked jurisdiction, during the pen-dency of an appeal, to grant a sentence modification motion brought under 18 U.S.C. § 3582(c)(2). See id. at 64. In reaching that conclusion, we cited, inter alia, United States v. Distasio, 820 F.2d 20, 23 (1st Cir. 1987), for the proposition that “a docketed notice of appeal suspends the sentencing court’s power to modify a defendant’s sentence.” We added that the limited exceptions to the general rule that an appeal terminates a district court’s jurisdiction all pertain “to district court orders that concern matters unrelated to the ‘substance of the decision’ being appealed.” Maldonado-Rios, 790 F.3d at 64 (quoting 16A Charles A. Wright et al., Federal Practice and Procedure § 3949.1, at 59 (4th ed. 2008)); accord United States v. Cardoza, 790 F.3d 247, 248 (1st Cir. 2015) (per curiam). The forfeiture order in this case does not concern a matter unrelated to the substance of the defendant’s appeal. Thus, it falls within the general rule, not within the long-odds exception to it. See Pease, 331 F.3d at 816.

Our decision in United States v. Ferrario-Pozzi, 368 F.3d 5 (1st Cir. 2004), is not to the contrary. That decision addressed whether a, district court retains jurisdiction, under Federal Rule of Criminal Procedure 32.2(e), to enter a forfeiture order despite the pendency of a notice of appeal. See id. at 11. There—unlike in this case—the district court’s original judgment included a statement that “forfeiture shall be no less than $2,000,000 to be determined at a hearing.” Id at 7. While the defendant’s appeal was pending, the district court made a specific forfeiture award of $3,700,000. See id. at 8. We ruled that the pending appeal did not deprive the district court of jurisdiction to issue the award because the award could be considered “an amendment of an existing order under Rule 32.2(e), and thus within the jurisdiction retained by the court.” Id. at 11. Put simply, our holding rested on the fact that forfeiture “was properly a part of the [initial] judgment.” Id.

Here, there was no forfeiture order included in the original judgment, mei-ely an allusion to the possibility that forfeiture might be ordered at some unspecified' future date. The district court made clear both at the disposition hearing and in its-written judgment that forfeiture remained an open, unresolved issue, and took no position as to whether forfeiture would be ordered at all. Under these circumstances, the pendency of the appeal deprived the court of jurisdiction to issue its amended judgment.

The fact that the parties consented to deferral of the district court’s consideration of the forfeiture issue does not alter the jurisdictional calculus. A federal court’s lack of subject-matter jurisdiction cannot be repaired by consent of the parties. See United States v. Horn, 29 F.3d 754, 768 (1st Cir. 1994) (“Parties cannot confer subject matter jurisdiction on either a trial or an appellate court by indolence, oversight, acquiescence, or consent.”).

We add a coda. The district court was not powerless to address the issue of forfeiture despite the pendency of the appeal. It could have asked us to stay the pending appeal and remand in order to allow it to make that additional ruling. See Puerto Rico v. SS Zoe Colocotroni, 601 F.2d 39, 42 (1st Cir. 1979); cf. Maldonado-Rios, 790 F.3d at 64-65 (discussing procedure to be used when district court wishes to act upon a motion that it lacks jurisdiction to address because of the pendency of an appeal (citing Fed. R. App. P. 12.1(a))). We commend this salutary procedure to district courts that wish to add forfeiture orders to sentences previously imposed.

III. CONCLUSION

We need go no further. For the reasons elucidated above, we affirm the' defendant’s conviction and sentence, but vacate the order of forfeiture as improvidently granted (that is, as granted without jurisdiction). We remand so that the district court, once its jurisdiction has reattached, may consider the issue of forfeiture anew. We take no view, however, as to either the propriety or amount of a future order of forfeiture.

Affirmed in part, vacated in part, and remanded.

      . We use the term "embezzlement” as a shorthand. The statute of conviction, 18 Ü.S.C. § 666(a)(1)(A), criminalizes a range of nefarious activities, including embezzlement, theft, fraudulent obtaining, knowing conversion, and intentional misapplication' of covered funds.

      . In 2008, Cosentino was rewarded for his efforts: the defendant used his influence to secure a position for Cosentino as SRTA’s administrator (a “no-show” job paying $95,000 per year plus substantial fringe benefits).

      . The defendant's reliance on United States v. Harloff. 815 F.Supp. 618, 619 (W.D.N.Y.1993), is misplaced. Courts have repeatedly distinguished Harloff in cases like this one, see, e.g., Baldridge, 559 F.3d at 1139; United States v. Williams, 507 F.3d 905, 909 (5th Cir. 2007); Valentine, 63 F.3d at 465, and we too regard it as off-point.

      . We add that the district court's sentencing calculus (including its order for restitution) did not include either the unvalued use of SRTA resources or the increased pension. In formulating the defendant's sentence, the district court did not include any proceeds of the fraud apart from Santos’s salary, Rocha’s salary, and the kitchen renovation payment.

      . The defendant's citation to Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), is far afield. The Morissette Court held that when Congress uses a term of art with a traditional mens rea but does not mention intent, it does not follow that Congress eliminated the element of intent altogether. See id. at 263, 72 S.Ct 240. That principle has no application where, as here, the challenged instructions do not strip away any traditional requirement of intent.

      . As framed, the defendant's asseverations regarding mens rea also bleed into a conclusory suggestion that the indictment may have been duplicitous. Because the defendant's briefs offer no developed argumentation in support of this.suggestion, we deem any claim of duplici-tousness waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

      . In support of this enhancement, the government also points to the defendant’s use of his political connections to control the bid process.' Becausé the defendant’s use of Trans-Ag is itself sufficient to justify the enhancement, we need not delve into the government’s other arguments.

      . In United States v. Sotomayor-Vázquez, 249 F.3d 1 (1st Cir. 2001), we affirmed a finding that the defendant (an outside consultant to a government contractor) occupied a position of trust when embezzling from the contractor. See id. at 19-20. But there, the contractor was the victim of the crime, and we addressed only whether the defendant’s status as a consultant created a position of trust. That is at a considerable remove from this case, in which the district court found SRTA to be the victim and treated the contractor as the instrumentality through which the fraud was perpetrated.

      . Although the district court did not identify Pacheco as a participant, his involvement was of the same nature as that of Santos and Rocha (albeit not to the same extent). Consequently, he too qualified as a participant.

      , To be sure, Cosentino eventually got religion and began to resist the defendant's looting of SRTA resources. Nevertheless, he willingly participated in the scheme during several prior years and, thus, could be found to be a participant for purposes of the role-in-the-offense enhancement. See United States v. Guevara, 706 F.3d 38, 43-46 (1st Cir. 2013).

      . Rule 32.2(e) allows a court "at any time” - to "amend an existing order of forfeiture to include” substitute property or subsequently located property. Fed. R. Crim, P. 32.2(e)(1) (emphasis supplied).


author: WINTER, Circuit Judge:

text:
    Melinda MITCHELL, individually and on behalf of a class of all others similarly situated, Harvey Mitchell, individually and on behalf of a class of all others similarly situated, Plaintiffs-Appellants, v. The CITY OF NEW YORK, a municipal entity, NYC Police Officer James Schuessler, Shield No. 28718, Richard Roes, 1-50 New York City Police Supervisors and Commanders, John Does, 1-50 New York City Police Officers, individually, and in their official capacities, jointly and severally, Police Officer Joseph Brinadze, NYPD Captain Joseph Gulotta, NYPD Sergeant Danielle Roventini, and NYPD Lieutenant Kathleen Caesar, Defendants-Appellees.
    Docket No. 14-0767-cv
    August Term, 2014
    United States Court of Appeals, Second Circuit.
    Argued: February 20, 2015
    Decided: October 28, 2016

      JEFFREY A. ROTHMAN (Jonathan C. Moore & Joshua S. Moskovitz, Beldock Levine & Hoffman LLP, New York, NY, on the brief) New York, NY, for Plaintiffs-Appellants.
    DRAKE A. COLLEY, for Zachary W. Carter, Corporation Counsel of the City of New York, New York, NY, for Defendants-Appellees.
    Before: WINTER, POOLER, and SACK, Circuit Judges.
   WINTER, Circuit Judge:

Melinda Mitchell and Harvey Mitchell— we will refer to them as Melinda and Harvey because they are not related—along with other similarly situated ■ individuals, appeal from: Judge Kaplan’s dismissal of their complaint on a grant of summary judgment to appellees. We hold that there is a genuine dispute of material fact as-to whether the appellee police officers had probable cause to' arrest appellants for trespass. We therefore vacate the judgment. We remand the false arrest claim and appellees’ claim of qualified immunity related to the false arrest. We affirm the dismissal of the ■ malicious prosecution, abuse of process, and municipal liability claims.

BACKGROUND

This appeal is from a grant of summary judgment, and the following recitation of facts, therefore, views the evidentiary record in the light most favorable to appellants, the non-moving ' party. Rentas v. Ruffin, 816 F.3d 214, 220 (2d Cir. 2016) (citation omitted).

In December 2010, Lieutenant Kathleen Caesar' of the New York City Police Department (“NYPD”) responded to a report of a sexual assault at a brownstone located at 2142 Atlantic Avenue, in' Brooklyn, New York. When Caesar arrived with another police officer, she saw two women, one of whom said she was robbed in the 'brownstone. After no one responded to' her knocks at the front door, Caesar entered the premises through the back door; She found no one inside. On the first floor, she observed a bar area next to’ the kitchen, a room with a dance pole, and a living room with no furniture. Caesar concluded that the house was abandoned. She told her colleague Lieutenant John Hopkins of this and later made it a point to'drive by. the brownstone during her patrol shifts since she believed the brownstone might have been “being used for parties.” J. App’x at 104.

About a month later,- on January 9,2011, Melinda and Harvey attended a party at the 2142 Atlantic Avenue brownstone. While both were invited by acquaintances, neither knew who was hosting the party or who owned the property. To enter the brownstone, they opened a small unlocked gate, and proceeded through the front door. There were no signs prohibiting entrance to the building. There was, however, a realtor’s for-sale sign on the property.

At about 2:15 a.m. on January 9, 2011, Caesar was driving by the brownstone when she saw three people standing on its stoop. She called Hopkins to inform him that suspicious activity might be taking place at the premises. After Hopkins, Captain Joseph Gulotta, and other officers arrived, Caesar knocked at the front door but ho one answered. She tried to open the door, but it was locked. She and some of the officers proceeded to the rear of the property and entered the brownstone through the back door. Caesar then made her way through the brownstone, past “about 30 kids” to the front door to let in more officers. Id-at'127-128.

■ Inside, the officers found at least 30 people. According to appellants, space was set up for a party, with a bar, a projector screen, disco lights, running water, working heat, DJ equipment, and an area with a big TV and some couches. Gulotta testified at his deposition that he saw that electricity was being routed in from outside the house via extension cords. Gulotta also testified at his deposition that he smelled marijuana upon entering the brownstone, and another officer, James Schuessler, testified at his deposition that he recalled seeing six or eight “nickel” or “dime” bags containing what looked to be marijuana and crack cocaine on the floor of the brownstone.

Upon entering the brownstone, the police told everyone to be quiet and then repeatedly asked who owned the property and who was hosting the party. Some people replied that they did not know who the owner was. When no one revealed the owner or host, Gulotta ordered the arrest of everyone present. The arrests were based on Gulotta’s belief that everyone at the party had: (i) “trespass[ed]”; (ii) “loiter[ed] for the purpose of using narcotics”; and (iii) “endangered] the welfare of a child because there was a 12 year-old child present.” Id. at 582. The only issue raised in this appeal with regards to the arrests is whether there was probable cause for the arrests for trespass.

Melinda and Harvey were arrested and both were handcuffed. Melinda was handcuffed for approximately one hour by an officer who refused to loosen the handcuffs when she complained they were too tight. The handcuffs caused bruising to her wrist that required her to take Advil and use an ice pack for two days. Harvey was handcuffed for 20 to 30 minutes; he alleged the handcuffs left marks on his arms but required no medical treatment.

All arrestees were processed at the precinct and their fingerprints and mug shots taken. Melinda was released with a “Desk Appearance Ticket” (“DAT”), which required her to appear in court at a later date. Harvey was processed through the Brooklyn Central Booking facility and arraigned.

After the arrests, several police officers each submitted statements entitled, “Supporting Deposition—Trespass in a Dwelling and Resisting Arrest,” to the Kings County District Attorney’s Office. The statements attested to the officers’ understanding that the brownstone was categorized as a Formal Trespass Affidavit Program (“FTAP”) dwelling and that the NYPD was the lawful custodian of the property. Notwithstanding the officers’ statement at the time of the arrest, it is now undisputed that the brownstone was not part of FTAP. The record does not illuminate whether the building was privately owned or abandoned to City custody, although demonstrating City custody would have helped the defense to show probable cause for the trespass arrests.

The Kings County District Attorney’s Office later declined to prosecute Melinda and others who received a DAT following the arrests at the brownstone. It also dropped all charges against Harvey pursuant to an Adjournment in Contemplation of Dismissal.

On April 6, 2012, appellants filed their original complaint in the present action, in which they assert Section 1983 claims for false arrest, malicious prosecution, abuse of process, and excessive force. On November 5, 2012, appellants filed their amended complaint asserting the same Section 1983 claims.

After discovery, both parties moved for summary judgment. Appellees moved for summary judgment on all of appellants’ claims, whereas appellants moved for partial summary judgment only on their federal and state law claims for false arrest and their state law claims for battery. The battery claim arising under New York law became moot, however, when the New York Appellate Division, Second Department, reversed the decision of the Kings County Supreme Court that granted appellants leave to file late notices of their claims. Mitchell v. City of N.Y., 112 A.D.3d 940, 977 N.Y.S.2d 368, 370 (2013). On February 11, 2013, the district court granted appellees’ motion for summary judgment in its entirety. Mitchell v. City of N.Y., No. 12 CIV. 2674 LAK, 2014 WL 535046, at *6 (S.D.N.Y. Feb. 11, 2014). This timely appeal followed.

DISCUSSION

We review de novo a district court’s grant of summary judgment, “construing the evidence in the light most favorable to the non-moving party and drawing all reasonable inferences in its favor.” Costello v. City of Burlington, 632 F.3d 41, 45 (2d Cir. 2011)(citation omitted). “[I]t is well-settled that [this court] may affirm on any grounds - for which there is a record sufficient to permit conclusions of law, including grounds nor relied upon by the district court.” Holcomb v. Lykens, 337 F.3d 217, 223 (2d Cir. 2003) (internal quotation marks and citation omitted).

a) False Arrest

1) Probable Cause

We first address the district court’s holding that the police had probable cause to arrest appellants. See Mitchell, 2014 WL 535046, at *3-*4. “The existence of probable cause to arrest constitutes justification and is a complete defense to an action for false arrest” brought under Section 1983. Jenkins v. City of N.Y., 478 F.3d 76, 84 (2d Cir. 2007) (internal quotation marks and citations omitted). “Probable cause ... exists when the [arresting] officers have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime.” Id. at 84-85 (internal quotation marks and citations omitted), A court deciding whether probable cause existed must “examine the events leading up to the arrest, and then decide whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to probable cause.” Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003) (internal quotation marks omitted). Where “an arrest is not made pursuant to a judicial warrant, the defendant in a false arrest case bears the burden of proving probable cause as an affirmative defense.” Dickerson v. Napolitano, 604 F.3d 732, 751 (2d Cir. 2010) (citation omitted).

On this record, it appears that no member of the NYPD made serious efforts to verify the legal status of the brownstone, i.e., the existence of a person or entity with a claim of occupancy of ownership, the property’s status under the FTAP, or the lack of any claim or other status. When Lieutenant Caesar first visited the property in December 2010, she failed to investigate the ownership status of the brownstone and assumed it was abandoned, even though there were signs of use. Based on the evidence in the record, a trier of fact could find that, when Caesar re-entered the brownstone in the early morning of the day of the arrests, she did so based solely on her earlier conjectures that the brownstone was abandoned and that appellants were therefore trespassing. A trier of fact could further find this belief was unreasonable, given the for-sale sign in the front yard. Indeed, as Captain Gulotta conceded, the existence of a real estate sign suggested that someone claimed ownership of the brownstone.

Other officers stated (inconsistently) that they believed the brownstone to be part of the FTAP or to be abandoned. It is conceded that these beliefs were mistaken. Moreover, on this record, the only basis, if any, for these beliefs appears to be word of mouth among the officers.

Furthermore, in finding that the officers had probable cause to believe the brownstone was abandoned and that those present were trespassing, the district court also relied heavily on the police officers’ observation once they were inside the brownstone that there were extension cords running from the brownstone to another property as well as the fact that when asked, no one attending the party told the officers who owned the brownstone. Mitchell, 2014 WL 535046, at *4. Drawing all inferences in favor of the appellants, as we must, we conclude to the contrary that these facts are insufficient to establish on summary judgment as a matter of law that the officers had probable cause to believe that the house was abandoned.

After the arrests, Officer Girard Mosca-to, having seen the for-sale sign outside the brownstone, tried to call Weichert Realty to inquire about the brownstone, but, after leaving a voice message, he did not follow up. See Colon v. City of N.Y., 60 N.Y.2d 78, 468 N.Y.S.2d 453, 455 N.E.2d 1248, 1250 (1983) (“[T]he failure to make a further inquiry when a reasonable person would have done so may be evidence of lack of probable cause.”) (citation omitted). Indeed, as Captain Gulotta conceded, the existence of a real estate sign suggested that someone claimed ownership.

Under New York law, one commits the crime of trespass if one “knowingly enters or remains unlawfully in or upon premises.” N.Y. Penal Law § 140.05. The law provides:

A person ‘enters or remains unlawfully’ in or upon premises when he is' not licensed or privileged to do so. A person who, regardless of his intent, enters or remains in or upon premises which are at the time open to the public does so with license and privilege unless he defies a lawful order not to enter or remain, personally communicated to him by the owner of such premises or other authorized person. A license or privilege to enter or remain in a building which is only partly open to the public is not a license or privilege to enter or remain in that part of the building which is not open to the public.

Id. § 140.00(5), The New York Court of Appeals has held “it is the state’s burden to prove that an invitee does not have privilege or license to remain on the premises. Because it is an element of the crime, officers must have probable cause to believe that a person does not have permission to be where she is before they arrest her for trespass.” Davis v. City of N.Y., 902 F.Supp.2d 405, 426 (S.D.N.Y. 2012) (discussing New York v. Brown, 25 N.Y.2d 374, 306 N.Y.S.2d 449, 254 N.E.2d 755, 756-57 (1969)). Appellees’ mass arrest for trespass, on this record, could easily be found to have been based entirely on baseless and unreasonable conjectures and assumptions as to the ownership of the property or its FTAP status.

Under these circumstances, viewing the record in the light most favorable to appellants, a dispute of material fact exists as to whether the police officers could have reasonably believed the appellants were trespassers. There was no reasonable basis for the belief that the building was in the FTAP, and the for-sale sign belied abandonment. The lack of any known claimant asserting legal occupancy of the premises on this record may eliminate any claim of unlawful entry by the police, but it provides no corresponding individualized probable cause to arrest appellants for trespass.

Accordingly, we vacate the dismissal of appellants’ false arrest claims.

2) Qualified Immunity

We leave open for decision in the first instance by the district court on remand the question of whether the appellees are entitled to qualified immunity with respect to the false arrest claim. See Tellier v. Fields, 280 F.3d 69, 84 (2d Cir. 2000) (“Because qualified immunity is an affirmative defense,... the defendants bear the burden of showing that the challenged act was objectively reasonable in light of the law existing at the time.”).

b) Malicious Prosecution

We next address the district court’s dismissal of appellant Melinda’s federal and state malicious prosecution claims. See Mitchell, 2014 WL 535046, at *5. In order to prevail on such a claim under both Section 1983 and New York State law, a plaintiff is required to demonstrate: (i) the commencement or continuation of a criminal proceeding against her; (ii) the termination of the proceeding in her favor; (iii) “that there was no probable cause for the proceeding”; and (iv) “that the proceeding was instituted with malice.” Kinzer v. Jackson, 316 F.3d 139, 143 (2d Cir. 2003) (citations omitted); see also Colon, 60 N.Y.2d at 82, 468 N.Y.S.2d 453, 455 N.E.2d 1248 (similar). When raising a malicious prosecution claim under Section 1983, a plaintiff must also show a “seizure or other perversion of proper legal procedures implicating the claimant’s personal liberty and privacy interests under the Fourth Amendment.” Washington v. Cty. of Rockland, 373 F.3d 310, 316 (2d Cir. 2004) (internal quotation marks and citation omitted).

We first address Melinda’s state law and federal law claims under the Kin-zer test. We have held that, under New York law, the issuance of a DAT constitutes a criminal proceeding initiation. See Stampf v. Long Island R.R. Co., 761 F.3d 192, 199 (2d Cir. 2014) (“[W]e adhere to the position we took in Rosario that, under New York law, the issuance of a DAT sufficiently initiates a criminal prosecution to sustain a claim of malicious prosecution.”); Rosario v. Amalgamated Ladies’ Garment Cutters’ Union, Local 10, 605 F.2d 1228, 1250 (2d Cir. 1979) (“[W]e believe that if a New York court faced the question before us it would rule that the issuance of [a DAT] commences a prosecution for purposes of determining whether an action for malicious prosecution lies.”). Accordingly, we find that Melinda has met the first Kinzer prong. She has also satisfied prongs two and three by showing, respectively, that the proceeding terminated in her favor when the District Attorney’s Office declined to prosecute her, and, as discussed supra, that there was no probable cause for her arrest. Where her claim fails, however, is at the fourth prong, because she has not alleged or proffered any facts that the DAT was issued with malice. Both of her malicious prosecutions, therefore, fail.

As Melinda fails to state a malicious prosecution claim under the Kinzer test, we need not reach the question of whether her single court appearance constituted a seizure under the Fourth Amendment for purposes of her Section 1983 malicious prosecution claim, and we leave the question for another day.

We therefore hold the district court properly dismissed Melinda’s state and federal malicious prosecution claims.

c) Abuse of Process

We now turn to appellants’ abuse-of-process claim. To successfully state such a claim, “it is not sufficient for a plaintiff to allege that the defendants were seeking to retaliate against him by pursuing his arrest and prosecution. Instead, he must claim that they aimed to achieve a collateral purpose beyond or in addition to his criminal prosecution.” Savino v. City of NY., 331 F.3d 63, 77 (2d Cir. 2003).

Whether or not the police officers may have sought to retaliate against appellants by arresting them, appellants have proffered no evidence that the police officers attempted to achieve any other collateral purpose beyond arresting appellants for trespass. We hold, therefore, albeit for different reasons, that the district court correctly dismissed appellants’ abuse-of-process claim.

d) Municipal Liability

We turn finally to the district court’s dismissal of appellants’ municipal liability claim. See Mitchell, 2014 WL 535046, at *6. To prevail, a plaintiff must identify the existence of a municipal policy or practice that caused the alleged constitutional violation. See Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 694-95, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A plaintiff must also demonstrate a sufficient causal relationship between the violation and the municipal policy or practice. Id.

As discussed supra, while appellants have sufficiently supported their claim that their arrests lacked individual probable cause, they have not supported their claim of municipal liability. Appellants have proffered no evidence to show that the arrests occurred pursuant to a city policy or practice. See City of Okla. City v. Tuttle, 471 U.S. 808, 823-24, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985)(plurality) (“Proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy[ ] [that] can be attributed to a municipal policymaker.”) (plurality); accord Fenner v. City of N.Y., No. 08 Civ. 2355(BMC)(LB), 2009 WL 5066810, at *4 (E.D.N.Y. Dec. 21, 2009) (“At most, plaintiff has identified a single incident of a constitutional violation. Even assuming such a violation occurred ... the Supreme Court has squarely held that this is insufficient to create liability under Monell.”) (citation omitted), aff'd, 392 Fed.Appx. 892, 894 (2d Cir. 2010) (summary order). Therefore, the distinct court correctly dismissed appellants’ Monell claim.

CONCLUSION

For the reasons stated, we vacate and remand the lower court’s summary judgment rulings as to the false arrest claims and the question of qualified immunity. We affirm the district court’s remaining summary judgment rulings.

      . The FTAP was developed to allow tenants and landlords to complain of drug-related activity occurring in the common areas of multi-dwelling apartment buildings. Landlords participating in the FTAP are asked to sign an affidavit authorizing the police to perform vertical patrols in their buildings. The police are also given keys to common areas and a list of tenant residents. See, e.g., Charles J. Hynes, Ask the DA: Preventing Illegal Activity in Apartment-Building Hallways, Brooklyn Daily Eagle (Sept. 19, 2012), www. brooklyneagle.com/articles/ask-da-preventing-illegal-activity-apartment-building-hallways-2012-09-19-090000; N.Y. Cty. Dist. Atty.’s Office, Trespass Affidavit Program, http:// manhattanda.orgAresp ass-affidavit-program (last visited Oct. 26, 2016).

      . The use of extension cords might have been for one of many reasons apart from the fact .that the brownstone was abandoned and the attendees were trespassing, such as to avoid blowing a fuse or tripping a circuit breaker on the property, or because there was insufficient power available from the brownstone’s 'electrical system without the addition of more from another source. Similarly, the silence of those present does not necessarily establish that the officers had a reasonable factual basis for thinking that the brownstone was abandoned.


author: DENNIS JACOBS, Circuit Judge:

text:
    Winston LAWRENCE, Plaintiff-Appellant, v. SOL G. ATLAS REALTY CO., INC., Peter Fidos, and Sandra Atlas Bass, Defendants-Appellees.
    Docket No. 15-3087
    August Term, 2016
    United States Court of Appeals, Second Circuit.
    Argued: September 16, 2016
    Decided: October 28, 2016

      ANDREW S. GOODSTADT, Goodstadt Law Group, PLLC, Carle Place, NY, for Plaintiff-Appellant.
    JESSICA M. BAQUET (Stanley A. Camhi, on the brief), Jaspan Schlesinger LLP, Garden City, NY, for Defendants-Appellees.
    Before: JACOBS, LIVINGSTON, Circuit Judges, and RAKOFF, District Judge.

       Judge Jed S. Rakoff, of the United States District Court for the Southern District of New York, sitting by designation.

   DENNIS JACOBS, Circuit Judge:

Winston Lawrence, a union member, alleges that his employer, and specifically its CEO and Lawrence’s direct supervisor, discriminated and retaliated against him in violation of several federal and New York state statutes. The sole issue on appeal is whether the collective bargaining agreement (“CBA”) contains a “clear and unmistakable” waiver of Lawrence’s right to pursue his statutory claims in federal court. The United States District Court for the Eastern District of New York (Hurley, J.) held that it does, granted Defendants’ motion to compel arbitration, and dismissed the complaint. We disagree, and accordingly, we vacate and remand for further proceedings.

BACKGROUND

Plaintiff is a black man of West Indian descent who has been employed as a porter by Sol G. Atlas Realty Co., Inc. (“Atlas”), a property management company, since 1994. Plaintiff alleges that Atlas, his Supervisor Peter Fidos, and Atlas CEO Sandra Atlas Bass (collectively, “Defendants”) discriminated against him on the basis of his race and/or national origin in violation of 42 U.S.C. § 1981 (“Section 1981”), Title VII of the Civil Rights Act of 1964 (“Title VII”), and the New York State Human Rights Law (“NYSHRL”), and retaliated against him in violation of Section 1981, Title VII, the NYSHRL, the Fair Labor Standards Act (“FLSA”), and the New York Labor Law (“NYLL”). Specifically, he claims that Defendants subjected him (and other black and West Indian porters) to unequal scrutiny and discipline, to harassment, and to other disadvantageous conditions of employment, and that they retaliated against him when he registered complaints internally and to the EEOC, and when he opposed Atlas’s failure to pay overtime to its employees (in part by participating in a Department of Labor investigation). The alleged acts of retaliation included imposing discipline and docking his pay without basis, threatening to terminate his employment, and manipulating the time clock to create the impression that he was late.

As a member of the Service Employees International Union, Local 32BJ, Plaintiff’s employment is governed by a collective bargaining agreement. Collectively bargained agreements to arbitrate statutory discrimination claims must be “clear and unmistakable.” Wright v. Universal Mar. Serv. Corp., 525 U.S. 70, 80-81, 119 S.Ct. 391, 142 L.Ed.2d 361 (1998); see also Rogers v. New York University, 220 F.3d 73, 76-77 (2d Cir. 2000) (per curiam), abrogated on other grounds by 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 129 S.Ct. 1456, 173 L.Ed.2d 398 (2009). Article X, Clause 23 of the CBA is entitled, “No Discrimination,” and it states in pertinent part:

There shall be no discrimination against any present or future employee by reason of race, creed, color, age, disability of an individual in accordance with applicable law, national origin, sex, sexual orientation, union membership, or any characteristic protected by law. Any disputes under this provision shall be subject to the grievance'and arbitration procedure (Article V).

J. App’x 50.

Article V of the CBA sets out the mechanism of arbitration. It states in relevant part that “[a] grievance shall first be taken up directly between the Employer and the Union”; that “[a]ny dispute or grievance between the Employer and the Union which cannot be settled directly by them shall be submitted to the Office of the Contract Arbitrator .,and that “[t]he procedure herein with respect to matters over which a Contract Arbitrator has jurisdiction shall be the sole and exclusive method for the determination of all such issues...” J. App’x 41-42.

■ Various provisions < in CBA Articles II, IX, and X regulate terms and conditions of employment, including wages and hours. None of these provisions, however, mention Atlas’s obligation to comply with Section 1981, Title VII, the NYSHRL, FLSA, or NYLL, or with statutory law generally.

Plaintiff brought suit in June 2014 alleging discrimination under Section 1981, Title VII, and the NYSHRL and retaliation under Section 1981, Title VII, the NYSHRL, the FLSA, and the NYLL. Defendants’ motion to compel arbitration pursuant to the Federal Arbitration Act and dismiss the complaint pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(1) or 12(b)(6) was referred to Magistrate Judge Gary R. Brown, whose report recommended that Defendants’ motion to compel arbitration be granted and the case be dismissed. The district court adopted Magistrate Judge Brown’s report and held that the CBA clearly and unmistakably requires arbitration of Plaintiffs claims under this Court’s holding in Rogers.

DISCUSSION

We review de novó a district court’s grant of a motion to compel arbitration, Cohen v. UBS Fin. Servs., Inc., 799 F.3d 174, 177 (2d Cir. 2015), and its grant of a motion to dismiss a complaint under Rules 12(b)(1) or 12(b)(6), ACLU v. Clapper, 785 F.3d 787, 800 (2d Cir. 2015).

Claims under Section 1981, Title VII, the NYSHRL, the FLSA, and NYLL may be made subject to arbitration. The issue is whether the CBA governing Plaintiffs employment contains a “clear and unmistakable” waiver of Plaintiffs right to pursue his statutory claims in federal court. In order for a mandatory arbitration provision in a CBA to encompass an employee’s statutory discrimination claims, the inclusion of such claims must be unmistakable, so that the wording is not susceptible to a contrary reading. See Wright, 525 U.S. at 80-81, 119 S.Ct. 391. In Wright, the CBA stated in pertinent part that “no provision or part-of this Agreement shall be violative of any Federal or State Law,” id. at 73, 119 S.Ct. 391, and that “[mjatters under dispute which cannot be promptly settled between the Local and an individual Employer shall, no later than 48 hours after such discussion, be referred in writing covering the entire grievance to a Port Grievance Committee,” id. at 72, 119 S.Ct.' 391. The Court held that these provisions did not clearly and unmistakably require arbitration of the plaintiffs claim under the Americans with Disabilities Act. Id, at 80, 119 S.Ct. 391. Among other reasons cited, the Court stated that the “arbitration clause is very general, providing for arbitration of ‘matters under dispute/ ... which could be understood to mean matters in dispute under the contract.” Id. (citation omitted).

We had occasion to apply the “clear and unmistakable” standard in Rogers v. New York University, in which an employer sought to compel arbitration of a union employee’s claims under the Americans with Disabilities Act, the Family Medical Leave Act, and New York State and City Human Rights Laws. 220 F.3d at 76-77. The CBA stated, in relevant part, that: (1) “there shall be no discrimination as defined by applicable Federal, New York State, and New York City laws, against any present or future employee by reason of ... physical or mental disability”; and (2) “any dispute concerning the interpretation, application, or claimed violation of a specific term or provision of this Agreement” must be arbitrated. Id. at 74, 76 (alteration in original). We held that the provisions at issue did not clearly and unmistakably waive the employee’s federal forum rights because they neither explicitly compelled arbitration of statutory (as opposed to contractual) causes of action, nor did they incorporate specific antidis-crimination statutes. Id. at 77.

Our holding in Rogers finds support among our sister circuits, which have likewise interpreted the “clear and unmistakable” standard to require specific references in the CBA either to the statutes in question or to statutory causes of action generally. See, e.g., Cavallaro v. UMass Memorial Healthcare, Inc., 678 F.3d 1, 7 n.7 (1st Cir. 2012) (“A broadly-worded arbitration clause ... will not suffice; rather, something closer to. specific enumeration of the statutory claims to be arbitrated is required.”); Carson v. Giant Food, Inc., 175 F.3d 325, 331-32 (4th Cir. 1999) (explaining that the “requisite degree of clarity can be achieved by two different approaches,” either: (1) “the CBA must contain a clear and unmistakable provision under which the employees agree to submit to arbitration all federal causes of action arising out of their employment”; or (2) it “must include an explicit incorporation of statutory antidiscrimination requirements” (internal quotation marks omitted)); Ibarra v. United Parcel Serv., 695 F.3d 354, 359-60 (5th Cir. 2012) (“[Cjourts have concluded that for a waiver of an employee’s right to a judicial forum for statutory discrimination claims to be clear and unmistakable, the CBA must, at the very least, identify the specific statutes the agreement purports to incorporate or include an arbitration clause that explicitly refers to statutory claims.”); Bratten v. SSI Servs., Inc., 185 F.3d 625, 631 (6th Cir. 1999) (“[A] statute must specifically be mentioned in a CBA for it to even approach Wright’s ‘clear and unmistakable’ standard.”).

The CBA here does not satisfy this exacting standard. Article X, Clause 23— the “No Discrimination” provision—clearly prohibits discrimination on the basis of “any characteristic protected by law” and compels arbitration of “[ajny disputes under [that] provision,” unmistakably creating a contractual right of employees to be free from unlawful discrimination that is subject to arbitration. J. App’x 50. However, a contractual dispute is not the same thing as a statutory claim, even if the issues involved are coextensive. Wright, 525 U.S. at 76, 119 S.Ct. 391 (observing that “a grievance is designed to vindicate a ‘contractual right’ under a CBA, while a lawsuit under Title VII asserts ‘independent statutory rights accorded by Congress’” (quoting Alexander v. Gardner-Denver Co., 415 U.S. 36, 49-50, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974))).

The “No Discrimination” provision may plausibly be interpreted to require arbitration of contractual disputes only. It makes no mention of “claims” or “causes of action.” It cites no statutes. It refers to disputes under “this provision,” not under statutes. The references to “law” do no more than define the characteristics on which discrimination is contractually forbidden under the CBA. They do not suggest that statutory discrimination claims based on those characteristics are subject to arbitration.

Our conclusion—that the CBA does not effectuate a clear and unmistakable waiver—is consistent with both the Supreme Court’s decision in Wright and our decision in Rogers. As in Wright, the relevant wording, here—the “No Discrimination” provision’s reference to “any disputes under this provision” and the arbitration provision’s reference to “[a]ny dispute or grievance between the Employer and the Union”—could be interpreted to mean disputes under the CBA and not claims under antidiscrimination statutes. See Wright, 525 U.S. at 80, 119 S.Ct. 391. Likewise, as in Rogers, the CBA here broadly prohibits the employer from engaging in unlawful discrimination and compels arbitration of “disputes” regarding this prohibition without making unmistakably clear that “disputes” includes statutory claims. The CBA in Rogers and the CBA here both reference statutory law: in Rogers, “there shall be no discrimination as defined by applicable Federal, New York State, and New York City laws,” 220 F.3d at 74; here, “[tjhere shall be no discrimination ... by reason of ... any characteristic protected by law,” J. App’x 50; but these references define the discrimination that is prohibited, not the type of dispute (statutory rather than just contractual) that is subject to arbitration.

Our conclusion applies with equal force to Plaintiffs retaliation claims. “Retaliation ... is a form of discrimination because the complainant is being subjected to differential treatment.” Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173-74, 125 S.Ct. 1497, 161 L.Ed.2d 361 (2005) (internal quotation marks omitted). Because the CBA does not clearly and unmistakably require arbitration of statutory discrimination claims (and does not treat retaliation separately from discrimination), Plaintiffs retaliation claims, like his discrimination claims, may be pursued in federal court.

CONCLUSION

For the foregoing reasons, we vacate the district court’s grant of Defendants’ motion to compel arbitration and dismiss the complaint, and we remand for further proceedings.

      . The case was dismissed, rather than stayed pending arbitration, because none of the parties requested a stay.

      . Significantly, the arbitration procedure outlined in Article V of the CBA covers "[a]ny dispute or grievance between the Employer and the Union.” J. App’x 41. A statutory discrimination claim would be between the employer and the employee.

      . As the Supreme Court recently-held in M & G Polymers USA, LLC v. Tackett, — U.S. -, 135 S.Ct. 926, 933, 190 L.Ed.2d 809 (2015), "[w]e interpret collective-bargaining agreements, including those establishing ERISA plans, according to ordinary principles of contract law, at least when those principles are not inconsistent with federal labor policy.” Defendants argue that such a focus on the plain meaning of the CBA at issue discloses a clear intent to arbitrate all disagreements pertaining to discrimination. However, Tacket did not involve an arbitration provision and did not presume to alter the well-established "clear and unmistakable” standard applicable to such provisions.