United States v. Abdelaziz
This text of 68 F.4th 1 (United States v. Abdelaziz) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
United States Court of Appeals For the First Circuit
No. 22-1129
UNITED STATES,
Appellee,
v.
GAMAL ABDELAZIZ,
Defendant, Appellant.
No. 22-1138
JOHN WILSON,
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Barron, Chief Judge, Lynch and Lipez, Circuit Judges.
Joshua C. Sharp, with whom Brian T. Kelly, Lauren A. Maynard, and Nixon Peabody LLP were on brief, for appellant Abdelaziz. Noel J. Francisco, with whom Yaakov M. Roth, Marco P. Basile, Harry S. Graver, Jones Day, Michael Kendall, Lauren M. Papenhausen, White & Case LLP, Andrew E. Tomback, and McLaughlin & Stern, LLP, were on brief, for appellant Wilson. Elliott M. Davis, Kateland R. Jackson, Scott A. Chesin, and Shook, Hardy & Bacon L.L.P. on brief for Former United States Attorneys, amici curiae. Michael J. Iacopino, Brennan Lenehan Iacopino & Hickey, Steven F. Molo, Leonid Grinberg, Justin V. Shur, Kenneth E. Notter III, and MoloLamken LLP on brief for the National Association of Criminal Defense Lawyers and the American Board of Criminal Lawyers, amici curiae. Robert T. Smith, Mary Fleming, Timothy H. Gray, and Katten Muchin Rosenman LLP on brief for Law Professors, amici curiae. Alexia R. De Vincentis, Assistant United States Attorney, with whom Rachael S. Rollins, United States Attorney, and Donald C. Lockhart, Ian J. Stearns, Stephen E. Frank, Leslie A. Wright, and Kristen A. Kearney, Assistant United States Attorneys, were on brief, for appellee.
May 10, 2023 LYNCH, Circuit Judge. The convictions underlying this
appeal arise from a government criminal prosecution of alleged
misconduct related to college admissions. The government alleged
that Rick Singer -- a college admissions consultant -- and his
clients engaged in various forms of bribery and fraud to help
secure those clients' children's admission to competitive
universities. Singer, who pleaded guilty in a separate case to
multiple charges1 and cooperated with the government's
investigation, is not a defendant here, and his culpability is
well established.
The defendants-appellants in this case are two parents,
Gamal Abdelaziz and John Wilson, who hired Singer. Both men agreed
with Singer to make payments purportedly to university accounts in
exchange for university employees' securing their children's
admission as athletic recruits -- a path to admission Singer
referred to as the "side door."2 Their defense at trial and on
appeal is that they believed Singer's services and the side door
to be legitimate and that they acted in good faith.
1 Singer pleaded guilty to conspiracy to commit racketeering, see 18 U.S.C. § 1962(d); conspiracy to commit money laundering, see id. § 1956(h); obstruction of justice, see id. § 1512(c)(2); and conspiracy to defraud the United States, see id. § 371. 2 Singer contrasted this side door with the "front door" (admission on merit) and the "back door" (admission through large "institutional advancement" donations).
- 3 - The government charged Abdelaziz and Wilson with
multiple offenses based on their work with Singer. It alleged
that both defendants had participated in an overarching conspiracy
not only with Singer but also with other Singer clients to
corruptly influence university employees through payments to
university accounts, in violation of the federal programs bribery
statute. See 18 U.S.C. § 666. It further alleged that Abdelaziz
and Wilson conspired with other parents to commit two types of
mail and wire fraud: honest services fraud, by using their payments
to deprive the universities of the honest services of their
employees, and property fraud, by depriving the universities of
property in the form of "admissions slots." See id. §§ 1341, 1343,
1346, 1349. It also charged Wilson with several substantive counts
of federal programs bribery and wire fraud, and with filing a false
tax return in connection with his payments through Singer. See 26
U.S.C. § 7206(1).
A jury convicted both Abdelaziz and Wilson of all
charges. The defendants challenge those convictions on a number
of grounds. They contend that payments to university accounts
cannot violate § 666 or constitute honest services fraud because
the payments were intended for accounts owned by the
universities -- the alleged victims of the scheme. They argue
that the property fraud theory is invalid because admissions slots
are not property, or, in the alternative, that their convictions
- 4 - must be vacated because the district court erred by instructing
the jury that admissions slots are property as a matter of law.
And they argue that the government proved only a narrower
conspiracy than the one alleged by the indictment and that this
variance prejudiced them on all counts. Wilson also asserts that
various forms of trial error require us to vacate his conviction
for filing a false tax return. Our task in this appeal is to
assess these arguments and determine whether the charged conduct
falls within the specific crimes of which these defendants were
convicted and whether the manner in which this case was charged
and tried unacceptably deprived these two defendants of a fair
trial on their own conduct, rather than the conduct of others.
Nothing in this opinion should be taken as approval of the
defendants' conduct in seeking college admission for their
children.
We reject the defendants' argument that payments to
accounts controlled by the alleged victim of a bribery scheme
cannot violate § 666, which lacks any basis in the provision's
text, and so deny their request for judgment of acquittal on that
basis. And we affirm Wilson's conviction for filing a false tax
return.
We do hold that the government's honest services theory
is invalid as a matter of law under the Supreme Court's decision
in Skilling v. United States, 561 U.S. 358 (2010), and that, on
- 5 - the arguments offered by the government, the district court erred
in instructing the jury that admissions slots constitute property.
Accordingly, we vacate the defendants' mail and wire fraud
convictions. We also hold that the government failed to prove
that Abdelaziz or Wilson agreed to join the overarching conspiracy
among Singer and his clients charged in the indictment, and that
this variance prejudiced the defendants by allowing the government
to introduce a significant amount of powerful evidence related to
other parents' wrongdoing in which these defendants played no part,
creating an unacceptable risk that the jury convicted Abdelaziz
and Wilson based on others' conduct rather than their own. On
that basis, we vacate the conspiracy convictions and Wilson's
substantive convictions under § 666.3
I. Background
We begin by laying out the basic facts and procedural
history. We elaborate on this background information as necessary
in our analysis of the legal issues.
3 We acknowledge and thank the amici curiae for their submissions in this case. Eleven former U.S.
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United States Court of Appeals For the First Circuit
No. 22-1129
UNITED STATES,
Appellee,
v.
GAMAL ABDELAZIZ,
Defendant, Appellant.
No. 22-1138
JOHN WILSON,
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Barron, Chief Judge, Lynch and Lipez, Circuit Judges.
Joshua C. Sharp, with whom Brian T. Kelly, Lauren A. Maynard, and Nixon Peabody LLP were on brief, for appellant Abdelaziz. Noel J. Francisco, with whom Yaakov M. Roth, Marco P. Basile, Harry S. Graver, Jones Day, Michael Kendall, Lauren M. Papenhausen, White & Case LLP, Andrew E. Tomback, and McLaughlin & Stern, LLP, were on brief, for appellant Wilson. Elliott M. Davis, Kateland R. Jackson, Scott A. Chesin, and Shook, Hardy & Bacon L.L.P. on brief for Former United States Attorneys, amici curiae. Michael J. Iacopino, Brennan Lenehan Iacopino & Hickey, Steven F. Molo, Leonid Grinberg, Justin V. Shur, Kenneth E. Notter III, and MoloLamken LLP on brief for the National Association of Criminal Defense Lawyers and the American Board of Criminal Lawyers, amici curiae. Robert T. Smith, Mary Fleming, Timothy H. Gray, and Katten Muchin Rosenman LLP on brief for Law Professors, amici curiae. Alexia R. De Vincentis, Assistant United States Attorney, with whom Rachael S. Rollins, United States Attorney, and Donald C. Lockhart, Ian J. Stearns, Stephen E. Frank, Leslie A. Wright, and Kristen A. Kearney, Assistant United States Attorneys, were on brief, for appellee.
May 10, 2023 LYNCH, Circuit Judge. The convictions underlying this
appeal arise from a government criminal prosecution of alleged
misconduct related to college admissions. The government alleged
that Rick Singer -- a college admissions consultant -- and his
clients engaged in various forms of bribery and fraud to help
secure those clients' children's admission to competitive
universities. Singer, who pleaded guilty in a separate case to
multiple charges1 and cooperated with the government's
investigation, is not a defendant here, and his culpability is
well established.
The defendants-appellants in this case are two parents,
Gamal Abdelaziz and John Wilson, who hired Singer. Both men agreed
with Singer to make payments purportedly to university accounts in
exchange for university employees' securing their children's
admission as athletic recruits -- a path to admission Singer
referred to as the "side door."2 Their defense at trial and on
appeal is that they believed Singer's services and the side door
to be legitimate and that they acted in good faith.
1 Singer pleaded guilty to conspiracy to commit racketeering, see 18 U.S.C. § 1962(d); conspiracy to commit money laundering, see id. § 1956(h); obstruction of justice, see id. § 1512(c)(2); and conspiracy to defraud the United States, see id. § 371. 2 Singer contrasted this side door with the "front door" (admission on merit) and the "back door" (admission through large "institutional advancement" donations).
- 3 - The government charged Abdelaziz and Wilson with
multiple offenses based on their work with Singer. It alleged
that both defendants had participated in an overarching conspiracy
not only with Singer but also with other Singer clients to
corruptly influence university employees through payments to
university accounts, in violation of the federal programs bribery
statute. See 18 U.S.C. § 666. It further alleged that Abdelaziz
and Wilson conspired with other parents to commit two types of
mail and wire fraud: honest services fraud, by using their payments
to deprive the universities of the honest services of their
employees, and property fraud, by depriving the universities of
property in the form of "admissions slots." See id. §§ 1341, 1343,
1346, 1349. It also charged Wilson with several substantive counts
of federal programs bribery and wire fraud, and with filing a false
tax return in connection with his payments through Singer. See 26
U.S.C. § 7206(1).
A jury convicted both Abdelaziz and Wilson of all
charges. The defendants challenge those convictions on a number
of grounds. They contend that payments to university accounts
cannot violate § 666 or constitute honest services fraud because
the payments were intended for accounts owned by the
universities -- the alleged victims of the scheme. They argue
that the property fraud theory is invalid because admissions slots
are not property, or, in the alternative, that their convictions
- 4 - must be vacated because the district court erred by instructing
the jury that admissions slots are property as a matter of law.
And they argue that the government proved only a narrower
conspiracy than the one alleged by the indictment and that this
variance prejudiced them on all counts. Wilson also asserts that
various forms of trial error require us to vacate his conviction
for filing a false tax return. Our task in this appeal is to
assess these arguments and determine whether the charged conduct
falls within the specific crimes of which these defendants were
convicted and whether the manner in which this case was charged
and tried unacceptably deprived these two defendants of a fair
trial on their own conduct, rather than the conduct of others.
Nothing in this opinion should be taken as approval of the
defendants' conduct in seeking college admission for their
children.
We reject the defendants' argument that payments to
accounts controlled by the alleged victim of a bribery scheme
cannot violate § 666, which lacks any basis in the provision's
text, and so deny their request for judgment of acquittal on that
basis. And we affirm Wilson's conviction for filing a false tax
return.
We do hold that the government's honest services theory
is invalid as a matter of law under the Supreme Court's decision
in Skilling v. United States, 561 U.S. 358 (2010), and that, on
- 5 - the arguments offered by the government, the district court erred
in instructing the jury that admissions slots constitute property.
Accordingly, we vacate the defendants' mail and wire fraud
convictions. We also hold that the government failed to prove
that Abdelaziz or Wilson agreed to join the overarching conspiracy
among Singer and his clients charged in the indictment, and that
this variance prejudiced the defendants by allowing the government
to introduce a significant amount of powerful evidence related to
other parents' wrongdoing in which these defendants played no part,
creating an unacceptable risk that the jury convicted Abdelaziz
and Wilson based on others' conduct rather than their own. On
that basis, we vacate the conspiracy convictions and Wilson's
substantive convictions under § 666.3
I. Background
We begin by laying out the basic facts and procedural
history. We elaborate on this background information as necessary
in our analysis of the legal issues.
3 We acknowledge and thank the amici curiae for their submissions in this case. Eleven former U.S. Attorneys, five criminal law professors, and the National Association of Criminal Defense Lawyers and the American Board of Criminal Lawyers filed briefs in support of Wilson.
- 6 - A.
1.
The charges against Abdelaziz stem from his work with
Singer in 2017 and 2018 to secure his daughter's admission to the
University of Southern California ("USC"). Abdelaziz had
previously paid Singer to work with his two older children in 2012
and 2013; the government does not argue or cite any evidence that
these 2012 and 2013 services for Abdelaziz's children were
improper.
It is undisputed that Abdelaziz agreed with Singer in
approximately June 2017 to pursue side-door admission to USC for
his daughter. Abdelaziz maintains that he believed this option to
be at least tacitly approved by the school and to entail
"preferential admissions treatment to students like [Abdelaziz's
daughter] who could assist athletic teams as practice players or
team managers and whose parents donated to the athletic
department." At the time, Abdelaziz's daughter had not played
competitive basketball in over a year; she had played for her
school's junior varsity team until January or February 2016 but
had stopped playing after failing to make the varsity team. A USC
admissions officer testified that Abdelaziz's daughter was also
not an academically competitive applicant outside the athletic
recruitment process.
- 7 - On July 16, 2017, Singer sent Abdelaziz an email with
the subject line "For Me to complete USC athletic profile" that
requested information about Abdelaziz's daughter's scholastic and
athletic accomplishments, including "If they play the sport-
Basketball," "Accolades if they have them," and "Action Picture."
Abdelaziz forwarded the email to his wife, but the record does not
otherwise show any response. Eleven days later, Singer emailed
Abdelaziz again to request "an action photo or two of [Abdelaziz's
daughter] playing basketball." Abdelaziz responded: "Got it." He
then sent Singer five photos of high school girls' basketball
games, four of which -- as Abdelaziz represents in his brief and
the government does not dispute -- contained his daughter, and one
of which did not. The file names for the photos used generic
letters and numbers (for example, "DSC_0007.JPG") and differed
only in the numbers. Singer responded: "We will use this one."
His email identified the chosen photo -- the one that did not
contain Abdelaziz's daughter -- only by the file name.
Singer instructed one of his associates to prepare the
profile. The associate did so; the result included the photo
Singer had selected and various basketball statistics and
accolades that the associate invented and that Abdelaziz's
daughter had not earned. Singer sent this profile to Abdelaziz in
early August, together with a message from his associate: "Let me
- 8 - know if you want me to add any other awards to her profile or if
you think that is enough."
As he did at trial, Abdelaziz disputes whether he saw
this message. Singer originally sent the profile to
gamalaziz@cox.net. This address generated an automatic reply that
stated: "Please be advised that I have changed my e-mail address
to gamalaziz797@gmail.com." An FBI agent testified that he was
not aware of any evidence that Abdelaziz opened or responded to
the message, although Abdelaziz later responded to messages Singer
sent to the same cox.net address, having apparently forwarded them
to the gmail.com account mentioned in his automatic reply.
The next day, Singer also sent the profile to
amalaziz797@gmail.com -- the address mentioned in the automatic
reply, but without the opening "g." The same FBI agent testified
that, because of the typo, this message would be "off in
cyberspace."
Singer then sent the profile to an administrator in the
USC Athletics Department who had agreed with Singer to facilitate
Abdelaziz's daughter's side-door admission. That administrator
added additional falsehoods to the profile -- including a photo of
a different girl. This version of the profile became the basis
for the profile presented to "Subco," a subcommittee of USC
admissions officers responsible for overseeing admission of
- 9 - athletic recruits. Based on this profile, Subco considered and
approved Abdelaziz's daughter's admission on October 5, 2017.
On October 10, the same athletics administrator who
revised Abdelaziz's daughter's profile sent Singer a letter from
the Dean of Admissions conditionally admitting Abdelaziz's
daughter as a recruited athlete, pending her submission of a full
application packet and other administrative tasks. Singer emailed
this letter to Abdelaziz the same day.
In early November, Abdelaziz forwarded the letter to a
Singer employee, together with an email that stated: "[Singer]
asked that we work with you to complete USC's application . . . ."
Abdelaziz later exchanged emails with this employee, Singer, and
another Singer associate about his daughter's application. In
these emails, Singer noted that it was important for the
application to discuss "basketball as apassion [sic]." Abdelaziz
later "reminde[d]" the others of this "direction" when it came
time to edit his daughter's application essays.
In early January 2018, Abdelaziz's daughter sent
Abdelaziz and the Singer employee an application essay in which
she described "[t]he basketball court [as her] art studio" and
wrote: "Whether I am playing alone or in a pickup game with friends
or in front of a crowd of two hundred people at school, I feel an
enormous release from my everyday life when I am on the court."
Abdelaziz responded in the same email thread that he had "read
- 10 - [his daughter's] essays," and opined that "overall [they
were] . . . good." His daughter had not played on the school
basketball team for nearly two years at the time. The Singer
employee submitted Abdelaziz's daughter's USC application the
following day.
Abdelaziz and the government agree that Abdelaziz's
daughter was formally admitted in March 2018, although they do not
cite any exact date in the record.
On March 16, 2018, a foundation run by Singer sent
Abdelaziz an invoice for $300,000,4 purportedly for a "[p]rivate
[c]ontribution." Abdelaziz wired that sum to the foundation ten
days later. Where that money ultimately went is unclear from the
record, but an FBI agent testified that Singer's "general pitch
[to parents] was that [a side-door payment] was a donation to a
program," and government counsel acknowledged at trial that Singer
told Abdelaziz the payment would go to a university account. The
government does not argue on appeal that the jury could have found
that Abdelaziz intended the payment to go to any USC employee
personally.
Abdelaziz's daughter enrolled at USC in fall 2018. She
never played for or otherwise associated with the women's
basketball team.
4 Singer ran both a for-profit business, The Key, and a nonprofit foundation, The Key Worldwide Foundation.
- 11 - In September 2018, the FBI approached Singer, and he
agreed to cooperate with the government's investigation of his
clients and university insiders. As part of this cooperation
agreement, Singer made various recorded calls at the government's
direction.
The government cites two such calls involving Abdelaziz.
The first occurred on October 25, 2018. During the call, Singer
told Abdelaziz that his foundation was being audited and that the
IRS had "asked . . . about" Abdelaziz's payment. Singer further
stated that he was "not going to tell the IRS anything about the
fact that your $300,000 . . . was paid to . . . [an athletics
administrator] at USC to get [Abdelaziz's daughter] into school
even though she wasn't a legitimate basketball player at that
level." Abdelaziz responded: "OK." Singer asked: "You're OK with
that, right?" Abdelaziz answered: "Of course." A moment later,
he added:
No, I -- I mean, I -- you know, I mean . . . my intention was to, uh, donate the money to the foundation and, uh, what -- you know, and then from there obviously, uh -- I don't think -- Uh, do they have the intention of reaching out to the people that sent those payments?
Singer said he did not know and that he "wanted to make sure our
stories are correct." He told Abdelaziz that he was "going to
essentially say that [the] $300,000 payment . . . was made to our
- 12 - foundation to help underserved kids," and "wanted to make sure
[Abdelaziz was] OK with that." Abdelaziz replied: "I am."
In the same exchange, Singer told Abdelaziz that the USC
athletics administrator with whom Singer had arranged the side
door had called Singer to say that she "loved" the profile created
for Abdelaziz's daughter and that "going forward, anybody who isn't
a real basketball player that's a female, [she] want[ed] [Singer]
to use that profile." Abdelaziz responded: "I love it."
The second call took place on January 3, 2019. Singer
told Abdelaziz that the same athletics administrator had called
him to "give [him] a heads up" that the Admissions Department had
"asked . . . why [Abdelaziz's daughter] did not show up for Women's
Basketball in the fall," and that the administrator had "told them
that [Abdelaziz's daughter] had an injury." Abdelaziz asked
whether the Admissions Department would ask his daughter about the
situation and whether he needed to "prepare her." Singer stated
that they would not contact Abdelaziz's daughter and that he had
"wanted [Abdelaziz] to know what" the administrator had told the
Admissions Department. Abdelaziz responded: "I will answer the
same, uh, should they call me."
2.
Wilson engaged Singer's services to facilitate side-door
admission for his children on multiple occasions between 2013 and
- 13 - 2019: first for his son, and then, years later, for his twin
daughters.
Beginning in spring 2013, Wilson worked with Singer to
secure his son's admission to USC through the side door as a
purported water polo recruit. Singer explained to Wilson by email
that the USC men's water polo coach was "giving [him] 1 boys slot,"
available on a "first come first [sic]" basis. In response to
Wilson's asking when payment was due, Singer responded: "No payment
of money till [sic] [the USC men's water polo coach] gets a verbal
and written [sic] from admissions . . . ."
Wilson's son did play high school water polo, but his
high school coach testified that he was not a player of the level
ordinarily recruited by USC, a noted water polo powerhouse. In
emails sent at the time, Wilson expressed doubts about whether his
son would fit in on the team, asking Singer whether "it w[ould] be
known that [his son was] a bench warming candidate" and whether
his son would "be so weak as to be a clear misfit at practice,"
and stating that "[o]bviously his [son's] skill level m[ight] be
below the other freshmen" and that he "want[ed] to be sure [his
son would] not [be] a lepper [sic]." Singer responded that "the
commitment is to be on the roster[,] not attend all
practices[;] . . . he will have to attend drug tests and other
mandatory functions for 1 year [but then can] walk away/ frankly
after the 1st semester he can move on."
- 14 - In August 2013, Singer noted in an email to Wilson that
the water polo coach needed "a player profile so he [could] add
[Wilson's son] to his recruit list and present him to admissions
in October," and that Singer had the necessary materials to create
the profile. Wilson responded: "Great - let me know when [you]
have verified [you] have it all completed and into [sic] [the water
polo coach]." In October, Singer updated Wilson: "[The water polo
coach] has [Wilson's son's] stuff and asked me to embellish his
profile more, which I am doing." A few days later, Singer emailed
the profile to Wilson. It misrepresented several aspects of
Wilson's son's athletic qualifications -- for instance, by
erroneously describing him as a captain of his high school team
and listing implausibly fast swim times. Wilson's counsel argued
both at trial and on appeal that the government did not prove
Wilson was aware of the falsehoods in the profile. Wilson's
counsel emphasized that an FBI agent whose testimony the government
used to introduce the email containing the profile acknowledged
that he was not aware of emails or other evidence showing Wilson
read or responded to Singer's message, and that the profile listed
the wrong home address and used Wilson's son's SAT scores rather
than his more impressive ACT scores, which Wilson purportedly would
have wanted included.
- 15 - An assistant water polo coach at USC relied on this
profile to prepare the athletic profile used by Subco to consider
whether to admit Wilson's son.
Subco considered and approved Wilson's son's admission
on February 28, 2014, relying in part on the falsified athletic
profile.
The day after Subco approved his son's admission, Wilson
emailed Singer to "[t]hank[] [him] again for making this happen."
He asked about "the options for the payment" and requested an
invoice "for consulting or whatever from [Singer's business] so
that [Wilson could] pay it from [his private equity firm's]
corporate account." After some further discussion of payment
mechanics, Wilson's firm wired $220,000 to a combination of Singer,
his business, and his foundation on April 7, 2014. The government
does not contend that any USC employee personally received a
portion of this payment. Singer passed $100,000 along to the USC
men's water polo team and, so far as the record shows, retained
the other $120,000.
Wilson's son quit the water polo team after his first
semester at USC.
Several years later, in September 2018, Wilson called
Singer about the possibility of helping Wilson's twin daughters,
then juniors in high school, with their college applications. The
government recorded this call, which took place before Singer began
- 16 - cooperating with the government, without the participants'
knowledge. Singer explained that for Wilson's daughters to gain
admission to the highly competitive schools they were interested
in "on their own" would require "essentially perfect grades" and
excellent standardized test scores, but added that "if you said
you wanted to . . . go through a different door you c[ould] do
that." Wilson inquired about "the other door," asking if it was
"like . . . water polo and [a] donation," and Singer explained the
price and availability of admission through the side door at
various universities. Singer informed Wilson that side-door
admission to Stanford or Harvard would cost "a minimum of [$]1.2
million," since a coach would have to "giv[e] up his spot" to a
purported recruit who is "not a good enough athlete[] to compete,"
but would provide a "done deal. Just like with [Wilson's son]."
Singer explained that the sport "d[id]n't matter," saying he "would
make them a sailor or something." Wilson laughed in response.
Wilson observed that they were discussing "big numbers," since
"there's so many people that want to do th[is]," and asked if
"there [was] any way to make [the payments] tax deductible as like
donations to the school." Singer stated that payments would be
deductible as contributions to his foundation.
Wilson and Singer continued to discuss the use of the
side door for Wilson's daughters after Singer began cooperating
with the government. From this point on, Singer's references to
- 17 - university insiders willing to facilitate side-door admission were
part of a ruse created by investigators.
In a September 29 call, Wilson confirmed that, while his
daughters remained undecided on what schools they wanted to attend,
he was "interested about the side door and that stuff" and asked
what schools and sports were available. Singer assured him that
the side door "is gonna . . . happen where you want it to happen,"
and that crew or sailing might be potential sports options. Wilson
asked: "[W]hat if they're not really that good?" Singer responded:
"[A]t the end of the day . . . I may be able to go to the sailing
coach and say, 'Hey, this family's willing to make the
contributions. . . . [The child] may not be up to the level you
are, but . . . you're gonna get a benefit, and the family's gonna
get [a] benefit.'" Wilson also asked how the payment would work.
Singer stated that "the money [went] into [his] foundation," and
that he would then "split the money potentially to the coach or
other . . . parties that are at that school that need the
money[.] . . . Or it may go right to the coach, . . . depend[ing]
on the school."
In October, Wilson called Singer to discuss "making some
donations now, whatever -- how that can work." Singer stated that
he worked with "a bunch of schools," including Harvard and Stanford,
on a "first come, first served" basis, and that, "if [he] were to
get a deposit . . . [of] like half a million dollars in the bank,"
- 18 - they could "figure out where [Wilson's daughters] wanna go" later.
"[H]aving the money already, in advance, [would] make[] it much
easier" because coaches "don't want to give up a spot" unless "the
family guarantee[s] . . . that they're gonna ante up and they're
gonna make a payment." Wilson asked whether his daughters
"actually ha[d] to do th[e] sport" or whether "[t]hey could just
go in and . . . be like . . . the scorekeeper[,] . . . water
girl[,] . . . [or] manager." Singer confirmed that they could be
"[m]anager[s] or whatever you want to call 'em," and that Wilson's
daughters were "athletic and . . . big" enough that he could "sell
to anybody that they're athletic enough to be able to take 'em and
there'll be no question." Singer further assured Wilson that, if
he used the side door, admission would be "a done deal." Wilson
requested that Singer send him wiring information, and confirmed
with Singer that if he sent "[h]alf a million" he would be "locked
in for 2." Wilson's private equity firm wired $500,000 to Singer's
foundation two days later at Wilson's direction.
Later that month, Singer told Wilson that he had spoken
with Stanford's sailing coach, that the coach was willing to
"guarantee[] a spot for next year," and that Wilson could "have
first dibs" if Singer sent the coach the "[$]500,000 that [Wilson]
wired into [Singer's] account to secure the spot for one of
[Wilson's] girls." Singer also mentioned that he had "asked [the
coach] for a second spot in sailing and [the coach] said he
- 19 - c[ould]n't do that because he ha[d] to actually recruit some real
sailors so that Stanford d[id]n't . . . catch on." Wilson laughed
and said "[r]ight." Wilson asked for more time for his daughters
to decide where they wanted to go, and inquired whether there was
"any news on the Harvard side." Singer promised to get back to
him.5
On November 29, Singer informed Wilson that they had
"got a spot if . . . [Wilson's daughter] want[ed] to go to Harvard."
He claimed that "the senior women's administrator at Harvard [was]
going to give [Wilson's daughter] a spot," in exchange for which
Wilson would "have to give . . . her . . . $500,000" through
Singer's foundation to "fund the senior women's administrator."
He added: "I've already paid [the Stanford sailing coach] the
[$]500 [thousand] and now we'll give the senior women's
administrator [$]500 [thousand] . . . . [Y]our total's going to be
[$]1.5 [million]. [$]250 [thousand] will come in the spring for
Stanford and [$]250 [thousand] for Harvard in the spring and
we'll . . . be done." Wilson responded: "OK, great." When Wilson
5 Singer and Wilson covered similar ground in a call a few days later, in early November. Singer told Wilson: "[W]e got the Stanford spot. They wanna know if you want it because I have to pay the coach, um, right away." He reiterated that the coach "d[id]n't care if it's a sailor or not." He added that he was "working" on Harvard, but it would "not happen for several months." Wilson again asked for more time to figure out which schools his daughters wanted to attend. He also agreed with Singer that his daughters "weren't going to get into either" Harvard or Stanford without the side door.
- 20 - asked what sport his daughter would need to play, Singer answered:
"[The Harvard administrator will] figure it out. . . . [I]t doesn't
matter the sport at this point. She will . . . just get her in
through . . . athletics in one of the sports but it won't matter."
Singer also noted that Wilson's other daughter "w[ould]n't have to
sail but we're going to put her through sailing" at Stanford.
Wilson responded that "sailing is actually a logical thing. She
could be even the mascot, whatever, but she knows sailing." He
confirmed that the plan "sound[ed] fantastic" and was "great news."
Wilson's private equity firm wired a further $500,000 to Singer's
foundation on December 11, again at Wilson's direction.
As with Abdelaziz, the government acknowledged at trial
that Singer "told the parents," including Wilson, "that the money
would go to the athletic program at the schools." On appeal, it
does not argue that the jury could have found that Wilson intended
any of his payments to go to insiders' personal accounts, rather
than to university-owned accounts related to the insiders'
positions.
B.
On March 5, 2019, a federal grand jury in the District
of Massachusetts returned a single-count indictment charging David
Sidoo -- a parent who had worked with Singer -- with conspiracy to
commit mail and wire fraud in connection with Sidoo's allegedly
having paid Singer to have one of his associates take various
- 21 - standardized tests for Sidoo's children. The indictment further
alleged that Singer had also paid his associate "to secretly take
the SAT and ACT for the children of other co-conspirators known
and unknown to the Grand Jury."
Six days later, the government filed a separate criminal
complaint alleging that roughly thirty other parents, including
Abdelaziz and Wilson, had conspired with Singer and others to
commit mail fraud and honest services mail fraud. The complaint
alleged varying forms of misconduct by the named parents; some
were alleged to have schemed to help their children cheat on
standardized tests, while others -- like Abdelaziz and Wilson --
were alleged to have conspired to bribe university employees to
secure their children's admission.
Many of the parents named in the complaint elected to
enter plea agreements with the government. For example, Gordon
Caplan, Agustin Huneeus, and Bruce Isackson -- three parents whose
interactions with Singer would later figure in the evidence at
Abdelaziz's and Wilson's trial -- agreed to waive the requirement
of indictment by a grand jury and plead guilty to various offenses
pursuant to criminal informations.
On April 9, 2019, a grand jury returned a superseding
indictment in the government's case against Sidoo that named as
codefendants eighteen parents from the complaint who had not
entered plea agreements, including Abdelaziz and Wilson. The
- 22 - government superseded this indictment twice more in the following
months. During this period, four more parents pleaded guilty
without written plea agreements.
The operative fourth superseding indictment in this
case, returned on January 14, 2020, charged fifteen parents with
an overlapping set of offenses. All fifteen defendants were
charged with conspiracy to commit mail and wire fraud and honest
services mail and wire fraud. See 18 U.S.C. §§ 1341, 1343, 1346,
1349. This count alleged an overarching conspiracy among the
defendants and others, including Singer, to defraud two
standardized test firms and five universities -- Georgetown;
Harvard; Stanford; the University of California, Los Angeles
("UCLA"); and USC -- in two alternative ways: first, by depriving
them of property in the form of "standardized tests and test
scores" (for the standardized test companies) and "admission to
the [u]niversities" (for the universities), and second, by
depriving them of the honest services of their employees through
the use of "bribes and kickbacks." Notably, although the
indictment contained detailed allegations of fraud related to
standardized testing with respect to several other defendants, it
did not allege that either Abdelaziz or Wilson had engaged in or
even been aware of that form of misconduct.
Eleven parents, including both Abdelaziz and Wilson,
were also charged with conspiracy to commit federal programs
- 23 - bribery. See id. §§ 371, 666(a)(2). The indictment alleged that
the parents had "conspired . . . to bribe agents of USC to secure
their children's admission to that university."
Wilson -- but not Abdelaziz -- was charged with three
substantive counts of wire fraud and honest services wire fraud,
see id. §§ 1343, 1346, and two substantive counts of federal
programs bribery, see id. § 666(a)(2), all in connection with his
efforts to secure admission to Harvard and Stanford for his
daughters. In addition, Wilson alone was charged with filing a
false tax return, see 26 U.S.C. § 7206(1), in connection with his
treatment of his payments to secure his son's admission to USC on
his 2014 tax return.6
The defendants moved to dismiss on a number of grounds.
Three of those grounds previewed arguments Abdelaziz and Wilson
now make on appeal: First, the defendants moved to dismiss the
federal programs bribery and honest services fraud charges,
arguing that payments made to the alleged victim of a bribery
scheme -- here, the universities -- cannot constitute bribes.
Second, they moved to dismiss the mail and wire fraud charges
insofar as these charges alleged that the defendants had defrauded
the universities of property, arguing that admissions slots do not
6 All fifteen defendants were also charged with conspiracy to commit money laundering. See 18 U.S.C. § 1956(h). The district court dismissed this charge as to Abdelaziz and Wilson before trial on the government's motion.
- 24 - constitute property. Third, they moved to dismiss the conspiracy
counts, arguing that the indictment alleged a "rimless wheel"
conspiracy barred by the Supreme Court's decision in Kotteakos v.
United States, 328 U.S. 750 (1946), and to dismiss the entire
indictment because it did not allege that the defendants had
participated in a single act, transaction, or series of
transactions, such that joinder was improper.
The district court denied these motions in a memorandum
opinion and order issued June 23, 2020. United States v. Sidoo,
468 F. Supp. 3d 428, 435 (D. Mass. 2020). It reasoned that
"[p]ayments made to accounts controlled by university insiders,
even if such payments were ultimately received by the
universities," could support the § 666 and honest services fraud
charges. Id. at 445; see id. at 444-45. It further concluded
that admissions slots "are property interests owned by the
university cognizable under the mail and wire fraud statutes."7
Id. at 441; see id. at 440-42. And it determined that the
indictment adequately alleged a single overarching conspiracy and
that, as a result, joinder was appropriate. See id. at 437-39.
7 The district court later incorporated this conclusion into its instructions to the jury on the mail and wire fraud counts, which stated: "For purposes of the mail and wire fraud statutes, admission[s] slots are the property of the [u]niversities."
- 25 - Before trial, twelve of the defendants reached plea
agreements with the government, and one received a presidential
pardon. After unsuccessfully moving to sever, Abdelaziz and Wilson
were tried jointly before a jury in fall 2021.
Singer himself did not testify at trial, despite having
cooperated with the investigation. The government did, however,
introduce a substantial amount of evidence related to other
parents' work with Singer without showing that Abdelaziz or Wilson
were personally aware of those activities. For example, Bruce
Isackson -- one of the parents who worked with Singer who entered
a plea agreement with the government -- was the government's first
witness, and described his knowing misconduct in his dealings with
Singer. He testified, for instance, that he had paid to have his
daughter's standardized test scores altered and that he "knew a
good portion of th[e] money [he paid Singer to facilitate his
children's college admission] was going into [Singer's] pockets
and [to] the people who helped him" rather than to the university
accounts for which it was purportedly intended. The government
also introduced recorded calls between Singer and other parents,
but not between Singer and Abdelaziz or Wilson, in which Singer
and those other parents discussed obviously wrongful activities,
such as schemes to cheat on standardized tests. And the
prosecution drew the jury's attention to this evidence during its
opening statement and closing argument. For instance, during
- 26 - closing argument, government counsel stated: "[One] thing that you
need to find . . . [is] that the defendants . . . knew that what
they were doing [was] wrong. One way you know that [they did] is
because Bruce Isackson told you that he knew it, from the witness
stand."
The defendants argued through counsel that they had
believed Singer's services to be legitimate and had acted in good
faith.
The jury found both Abdelaziz and Wilson guilty on all
counts. Abdelaziz and Wilson moved for judgment of acquittal or
a new trial, raising, as most relevant here, arguments similar to
those made in the pretrial motions to dismiss. The district court
denied the motions, relying on the reasoning from its decision
denying the motions to dismiss. See United States v. Abdelaziz,
578 F. Supp. 3d 110, 113-14, 116 (D. Mass. 2021). The court
sentenced Abdelaziz and Wilson to twelve and fifteen months'
imprisonment, respectively.
These timely appeals followed.
II. Rejection of the Defendants' Theory that Their Convictions Under 18 U.S.C. § 666 ("Theft or bribery concerning programs receiving Federal funds") Fail as a Matter of Law
We begin with the defendants' argument that the charges
under 18 U.S.C. § 666 (as well as the related § 666 conspiracy
counts) "fail as a matter of law." We review these questions of
law about the scope of § 666 de novo, see United States v.
- 27 - Fernandez, 722 F.3d 1, 8 (1st Cir. 2013), and reject the
defendants' argument.
The text of § 666 criminalizes "corruptly giv[ing],
offer[ing], or agree[ing] to give anything of value to any person,
with intent to influence or reward an agent of an
organization . . . in connection with any business, transaction,
or series of transactions of such organization . . . involving
anything of value of $5,000 or more."8 18 U.S.C. § 666(a)(2). The
parties agree that the "agent[s]" in this case are the university
employees who worked with Singer and that the "organization[s]"
are the universities. The defendants do not make any developed
argument that their dealings with Singer and, through him, the
university insiders were not "in connection with . . . business,
transaction[s], or [a] series of transactions of [the
universities] involving anything of value of $5,000 or more." Nor
do the defendants argue that the payments were not "inten[ded] to
influence" the insiders in conducting that business or those
transactions.
8 Section 666 applies only if the "organization" in question "receives, in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance." 18 U.S.C. § 666(b); see id. § 666(a). On appeal, the defendants do not dispute that the universities satisfy this condition.
- 28 - The focus of the defendants' arguments is instead on
whether payments intended for university accounts -- which the
government does not dispute the defendants' payments were -- can
violate § 666. That is, the defendants dispute that the phrase
"any person" in § 666 can refer to the "organization" which is the
agent's principal. Here, the organization which is the agent's
principal is a university. The defendants contend that a payment
to a university principal is not covered by § 666's text and does
not align with common or historical understandings of the terms
"bribe" and "bribery" or the purposes of "bribery" statutes. In
particular, the defendants emphasize that the government cannot
produce a single case in the history of Anglo-American law in which
a payment to an agent's principal was prosecuted as a bribe. Thus,
the defendants contend that construing the provision to proscribe
such payments would violate several canons of construction
requiring that "ambiguous" criminal statutes be construed
narrowly.
A.
We turn to the plain language of § 666. See, e.g., Baker
v. Smith & Wesson, Inc., 40 F.4th 43, 48 (1st Cir. 2022) ("We start
with the [statutory] text . . . ."); see also Salinas v. United
States, 522 U.S. 52, 55-57 (1997) (interpreting § 666 based on its
"plain language"). That text refers to a thing of value given "to
any person." 18 U.S.C. § 666(a)(2). At oral argument, defense
- 29 - counsel conceded that the "person" to whom a "[]thing of value" is
given could be an organization.9 See 1 U.S.C. § 1 (defining
"person" to include "corporations, companies, associations, firms,
partnerships, societies, and joint stock companies" "unless the
context indicates otherwise").
Given this concession, we see no textual reason to
exclude the organizational principal from the set of entities that
qualify as "any person" for purposes of § 666. The Supreme Court
has explained that courts should give effect to § 666's "expansive,
unqualified language," including in its use of the word "any."
Salinas, 522 U.S. at 56-57; see also Sabri v. United States, 541
U.S. 600, 605 (2004) (declining to read § 666 to require proof
that crime itself had nexus with federal money); Fischer v. United
States, 529 U.S. 667, 677 (2000) (reading "benefit" in § 666 to
include Medicare funds). Salinas, for example, reasoned that
Congress's use of "any" before "the business or transaction
clause . . . undercut[] [a defendant's] attempt to impose [a]
narrowing construction" that would limit § 666's application to
bribes affecting federal funds. 522 U.S. at 57. Here, the use of
"any" before "person" militates against excluding principals from
the set of eligible "person[s]."
9 Similarly, in their briefing, the defendants stated that bribes could be directed to the agent's "political campaign, or . . . his favorite charity."
- 30 - Section 666's context and history buttress the
conclusion that "any person" includes the agent's principal. See
Fernandez, 722 F.3d at 20-27 (considering "statutory context,"
including history of § 666 and related statutes, in interpreting
§ 666). Congress amended § 666 into essentially its current form
in 1986. See id. at 21-22. In so doing, Congress used the same
operative language as used in 18 U.S.C. § 215, the bank bribery
statute, which it had also revised earlier that year. Indeed, the
committee report on the § 666 amendment explained that "[t]he
provision parallels the bank bribery provision (18 U.S.C.
[§] 215)." H.R. Rep. No. 99-797, at 30 n.9 (1986). Compare 18
U.S.C. § 215(a)(1), with id. § 666(a)(2).
Before 1986, § 215 prohibited "directly or indirectly,
giv[ing], offer[ing], or promis[ing] anything of value to any
[agent] of any financial institution . . . or offer[ing] or
promis[ing] any such [agent] to give anything of value to any
person or entity, other than such financial institution, for or in
connection with any transaction or business of such financial
institution." Act of Oct. 12, 1984, Pub. L. No. 98-473, § 1107(a),
98 Stat. 1837, 2146 (emphasis added). The 1986 amendment to § 215
revised the statute to bar "corruptly giv[ing], offer[ing], or
promis[ing] anything of value to any person, with intent to
influence or reward an officer, director, employee, agent, or
attorney of a financial institution in connection with any business
- 31 - or transaction of such institution." Act of Aug. 4, 1986, Pub. L.
No. 99-370, § 2, 100 Stat. 779, 779.
This history of § 215 and thus of § 666 shows that
Congress knew how to exclude the agent's principal from the set of
"person[s]" who could receive the thing of value, and it chose not
to do so in revising § 215 or importing its language into § 666.
Cf. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 357 (2013)
(comparing the text of antidiscrimination statutes and concluding
that "when Congress elected to address [a concept] as part of a
detailed statutory scheme, it did so in clear textual terms").
Section 666 itself includes no express carveout -- the statute
refers only to "any person." That context further undercuts the
defendants' effort to introduce a carveout for payments to the
agent's principal.10
The defendants' textual counterarguments are
unpersuasive. They first respond that the "person" and the
"organization" must be distinct in order "to give each term
independent meaning." Even when "person" and "organization"
happen to refer to the same entity, however, each term does
independent work in defining the offense: the former describes the
recipient of the thing of value, while the latter identifies the
10 The language of § 666 tracks the language of the revised version of § 215. The defendants make no argument that, notwithstanding the revisions to the text of § 215, "any person" in that provision excludes the financial institution.
- 32 - agent's principal. See 18 U.S.C. § 666(a)(2); cf. Littlefield v.
Mashpee Wampanoag Indian Tribe, 951 F.3d 30, 38 (1st Cir. 2020)
(finding no surplusage where a statute contained multiple
definitions of potential benefit recipients even though a
particular person might qualify under multiple definitions).
Further, the defendants do not explain -- and we can think of no
explanation -- why their reasoning would not require concluding
that the "agent" must also be distinct from the "person" who
receives the thing of value. Yet even the defendants acknowledge
that a payment to the agent himself "in exchange for an exercise
of his powers" is a paradigmatic form of bribery covered by § 666.
The defendants turn for support to the Supreme Court's
decision in Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158
(2001), but that case does not help their cause. Cedric Kushner
involved a suit under the Racketeer Influenced and Corrupt
Organizations ("RICO") Act, which "makes it 'unlawful for any
person employed by or associated with any enterprise'" to engage
in certain conduct. Id. at 160 (quoting 18 U.S.C. § 1962(c)).
The Court concluded that the RICO Act's text contemplates "two
distinct entities: (1) a 'person'; and (2) an 'enterprise' that is
not simply the same 'person' referred to by a different name,"
because, by the statute's terms, the "person" must be "employed by
or associated with" the "enterprise," and "[i]n ordinary English
- 33 - one speaks of employing, being employed by, or associating with
others, not oneself." Id. at 161.
The premise of the defendants' argument is that § 666
"follows a similar structure" to that of the RICO statute and so,
under Cedric Kushner, the "person" and the "organization" must be
distinct. The defendants' premise is wrong: § 666's language does
not parallel the RICO statute in the relevant respect. The RICO
statute sets out a particular relationship between the "person"
and the "enterprise" -- the former must be "employed by or
associated with" the latter -- that is incompatible with the
"person" and the "enterprise" being synonymous. In contrast,
§ 666's text does not require such a relationship between the
"person" and the "organization." Instead, it refers broadly to
"any person" and, separately, to an "organization."
At oral argument, Wilson's counsel also asserted that
"the thing of value" required by § 666 cannot "be the type of
professional benefit that the government has been relying on."
See 18 U.S.C. § 666(a)(2) (requiring, inter alia, "giv[ing],
offer[ing], or agree[ing] to give anything of value"). We need
not decide whether professional benefits can qualify as "anything
of value" for purposes of § 666 because that phrase, as used in
the statute, refers not to what the agent personally receives from
the arrangement but to what the defendants "g[a]ve[], offer[ed],
or agree[d] to give . . . to any person" -- here, the money the
- 34 - defendants paid or agreed to pay to the universities. Money is
indisputably a thing of value. See, e.g., Salinas, 522 U.S. at
57. That is all § 666 requires.
The defendants also offer nontextual arguments to
support their view that § 666 cannot criminalize payments to the
university principals. They contend first that a payment to a
university principal does not fall within ordinary or historical
understandings of the terms "bribe" or "bribery" or implicate the
purpose of antibribery provisions, and second that a series of
statutory construction canons favor their reading: They assert
that § 666 is "ambiguous," such that the rule of lenity applies.
The government's reading, they argue, alters the balance of state
and federal criminal jurisdiction, which should not be done without
a clear statement by Congress. They conclude by arguing there are
vagueness concerns which require a narrow reading of § 666.
Given the clear meaning of the language chosen by
Congress, arguments about the meaning of "bribe" and "bribery" or
the generalized purposes of "bribery" laws are beside the point.11
As the Supreme Court said in Bostock v. Clayton County, 140 S. Ct.
11 The section's caption does use the term "bribery," 18 U.S.C. § 666, but "[t]he caption of a statute . . . 'cannot undo or limit that which the [statute's] text makes plain,'" Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 256 (2004) (second alteration in original) (quoting Bhd. of R.R. Trainmen v. Balt. & Ohio R.R. Co., 331 U.S. 519, 529 (1947)).
- 35 - 1731 (2020), "[w]hen the express terms of a statute give us one
answer and extratextual considerations suggest another, it's no
contest." Id. at 1737. Nor does the fact that the government has
not identified any historical bribery prosecution involving a
payment to the agent's principal override § 666's clear text. Cf.
id. at 1750-53 (rejecting narrow reading of Civil Rights Act of
1964 based on historical applications).
The defendants' arguments based on various canons
calling for narrow constructions of ambiguous criminal statutes
fail because the text of § 666 is not ambiguous with respect to
whether it covers payments to the university principals. See
Salinas, 522 U.S. at 66 ("The rule [of lenity] does not apply when
a statute is unambiguous or when invoked to engraft an illogical
requirement to its text."); id. at 59-60 (holding that the canon
of construction requiring a clear statement to alter the federal-
state balance of criminal jurisdiction "does not warrant a
departure from [§ 666's] terms" where the statute's "text . . . is
unambiguous on the point under consideration"); cf. Skilling v.
United States, 561 U.S. 358, 412 (2010) (finding no vagueness
problem where it was "as plain as a pikestaff that" the conduct at
issue would violate a statute (quoting Williams v. United States,
341 U.S. 97, 101 (1951))). The rule of lenity, for example, does
not apply because "there is [no] '"grievous ambiguity or
uncertainty" in the statute.'" Muscarello v. United States, 524
- 36 - U.S. 125, 139 (1998) (quoting Staples v. United States, 511 U.S.
600, 619 n.17 (1994)). The Supreme Court has consistently
commanded that § 666 be interpreted in keeping with its "expansive,
unqualified language," which "undercuts . . . attempt[s] to
impose . . . narrowing construction[s]." Salinas, 522 U.S. at 56-
57; see also Sabri, 541 U.S. at 605; Fischer, 529 U.S. at 677.
Further, the defendants' policy argument that our
interpretation of § 666 would upset the state-federal balance and
"criminalize a large swath of ordinary transactions" suffers from
several flaws. That policy argument would arrogate to the federal
judiciary choices which have been made by Congress. And the
argument disregards that there are meaningful restrictions on
§ 666's scope.
The statutory text of § 666 imposes several restrictions
on the type of conduct proscribed by the provision. First, the
reach of § 666 is limited by two dollar thresholds. Section 666
applies only if the organization at issue "receives, in any one
year period, benefits in excess of $10,000 under a Federal
program." 18 U.S.C. § 666(b); see id. § 666(a). And "to fall
within the purview of § 666, [a bribe] must be made 'in connection
with any business, transaction, or series of transactions of [the
covered] organization, government, or agency involving anything of
value of $5,000 or more.'" Fernandez, 722 F.3d at 12 (second
- 37 - alteration in original) (quoting 18 U.S.C. § 666(a)(2)); see id.
at 12-13 (discussing this "transactional element").
Most importantly, § 666 requires that a defendant have
acted "corruptly." 18 U.S.C. § 666. This "corruptly" element
provides a meaningful limit on the provision's sweep. See, e.g.,
Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 167
(2004) (describing "the settled rule" that courts "must, if
possible, construe a statute to give every word some operative
effect").
The government stresses that the requirement that the
defendant act "corruptly" restricts the scope of permissible
prosecutions. Its brief does not argue that any payment which
violates any university policy could violate § 666. Instead, the
government focuses on payments intended to induce university
insiders to act contrary to the schools' underlying interests.
But the definitions of "corruptly" that appear in the legislative
histories of other federal bribery statutes point against the
conclusion that the term somehow operates to exclude agents'
principals from the set of "person[s]" who can receive the thing
of value under § 666. See H.R. Rep. No. 87-748, at 18 (1961) ("The
word 'corruptly' [in 18 U.S.C. § 201, the federal officials bribery
statute,] . . . means with wrongful or dishonest intent."); H.R.
Rep. No. 99-335, at 6 n.24 (1985) ("The term 'corruptly' [in § 215,
the bank bribery statute,] means that the act is done 'voluntantly
- 38 - [sic] and intentionally, and with the bad purpose of accomplishing
either an unlawful end or result, or a lawful end or result by
some unlawful methods or means. The motive to act corruptly is
ordinarily a hope or expectation of either financial gain or other
benefit to one's self, or some aid or profit or benefit to
another.'" (quoting 2 E. Devitt & C. Blackmar, Federal Jury
Practice and Instructions § 34.08 (3d ed. 1977))). Nothing in
those definitions appears uniquely incompatible with payments made
to agents' principals.
Moreover, because the defendants' argument for the
reversal of the § 666 counts does not squarely raise the meaning
of "corruptly" in this context, we see no basis for reversing their
convictions on any contention about the meaning of "corruptly."12
We reject the defendants' argument that the charges
under § 666 fail as a matter of law because the payments at issue
were intended for university accounts.13
12 Because, as we will explain, we vacate the § 666 convictions on other grounds, we leave it to the district court to address the import of the meaning of "corruptly," if necessary, on remand after full briefing. 13 The defendants also argue that they are entitled to a new trial due to alleged error in the jury instructions. Because we vacate the convictions under § 666 on other grounds, as discussed below, we do not address this argument.
- 39 - We address the defendants' more successful argument that
the § 666 convictions must be vacated for trial error in Section
IV, set forth below.
III. Acceptance of the Defendants' Defenses as to Convictions Under 18 U.S.C. §§ 1341, 1343, and 1346 ("Honest Services Fraud" and "Property Fraud")
The defendants argue that the charges under the mail and
wire fraud statutes, see 18 U.S.C. §§ 1341, 1343, 1346, fail as a
matter of law. These mail and wire fraud charges were based on
two distinct legal theories: honest services fraud and property
fraud.14 The defendants argue that the conduct charged in the
indictment does not involve the core honest services doctrine
identified in Skilling. They also argue that the statutory
requirement that "property" be the subject of the alleged scheme
or artifice to defraud cannot be met here.
While the question is close, in the end we agree with
the defendants. Considering each theory de novo, see United States
v. Correia, 55 F.4th 12, 41 (1st Cir. 2022); Fernandez, 722 F.3d
14 The defendants do not dispute that if either theory is legally viable and the jury instructions were proper, the evidence was sufficient. See United States v. Celestin, 612 F.3d 14, 24 (1st Cir. 2010) ("[W]hen the government has advanced several alternate theories of guilt and the trial court has submitted the case to the jury on that basis, an ensuing conviction may stand as long as the evidence suffices to support any one of the submitted theories." (quoting United States v. Gobbi, 471 F.3d 302, 309 (1st Cir. 2006))). They argue separately that, even if the government's theory and the jury instructions were legally sound, they are nonetheless entitled to a new trial because of trial error; we address those contentions in Section IV below.
- 40 - at 8, we conclude that the honest services fraud theory fails as
a matter of law and that the government's arguments with respect
to the property theory are not adequate to support the jury
instructions given at trial. We vacate the defendants' mail and
wire fraud convictions, including the related conspiracy
convictions (Counts One, Six, Eight, and Nine of the operative
indictment).
The government's honest services fraud theory
essentially charges the defendants with a non-traditionally
recognized form of bribery. Understanding this theory and the
defendants' objections to it requires some background on the
history of the mail and wire fraud statutes. In particular, it is
important to understand (1) the law in this area before the Supreme
Court's decision in McNally v. United States, 483 U.S. 350 (1987);
(2) the congressional reaction to McNally; and (3) the Court's
2010 decision in Skilling interpreting the current scope of the
mail and wire fraud statutes after those developments and in light
of constitutional concerns. See generally Skilling, 561 U.S. at
399-402 (recounting this history).
Sections 1341 and 1343 both prohibit "any scheme or
artifice to defraud, or for obtaining money or property by means
- 41 - of false or fraudulent pretenses, representations, or promises."15
18 U.S.C. §§ 1341, 1343 (emphasis added). As the Supreme Court
said in Skilling: "Emphasizing Congress' disjunctive phrasing, the
Courts of Appeals, [beginning in the 1940s], interpreted the term
'scheme or artifice to defraud' to include deprivations not only
of money or property, but also of intangible rights." 561 U.S. at
400. This "honest services doctrine" proscribed forms of fraud in
which,
[w]hile the offender profited, the betrayed party suffered no deprivation of money or property; instead, a third party, who had not been deceived, provided the enrichment. For example, if a city mayor (the offender) accepted a bribe from a third party in exchange for awarding that party a city contract, yet the contract terms were the same as any that could have been negotiated at arm's length, the city (the betrayed party) would suffer no tangible loss. Even if the scheme occasioned a money or property gain for the betrayed party, courts reasoned, actionable harm lay in the denial of that party's right to the offender's "honest services."
Id. (citation omitted). While honest services cases "[m]ost
often . . . involved bribery of public officials," courts also
applied the theory to the private sector. Id. at 401 (quoting
15 The mail fraud statute applies to schemes involving use of the mails, 18 U.S.C. § 1341, while the wire fraud statute applies to those involving use of the wires, id. § 1343. Apart from these elements, the Supreme Court has construed the statutes coextensively, see, e.g., Pasquantino v. United States, 544 U.S. 349, 355 n.2 (2005), and so we discuss them interchangeably.
- 42 - United States v. Bohonus, 628 F.2d 1167, 1171 (9th Cir. 1980)).
The defendants do not assert that the statutes cannot reach purely
private actors. "[B]y 1982, all Courts of Appeals had embraced
the honest-services theory of fraud." Id. (citation omitted).
But the Supreme Court's 1987 decision in McNally
"stopped [the theory] in its tracks." Id. "McNally involved a
state officer who, in selecting Kentucky's insurance agent,
arranged to procure a share of the agent's commissions via
kickbacks paid to companies the official partially controlled."
Id. at 401-02 (citing McNally, 483 U.S. at 360). The prosecution
did not allege that the scheme had cost the state money or resulted
in worse insurance; rather, it argued that the scheme had deprived
Kentucky of its right to honest services. Id. at 402 (citing
McNally, 483 U.S. at 353, 360). The Court rejected this argument
and the honest services doctrine, which, it reasoned, "le[ft] [the
mail and wire fraud statutes'] outer boundaries ambiguous and
involve[d] the Federal Government in setting standards of
disclosure and good government for local and state officials."
Id. (quoting McNally, 483 U.S. at 360). The Court "read the
statute 'as limited in scope to the protection of property
rights,'" and stated that "[i]f Congress desire[d] to go
further, . . . it must speak more clearly." Id. (quoting McNally,
483 U.S. at 360).
- 43 - Congress responded the following year by enacting 18
U.S.C. § 1346, which provides: "For the purposes of [the mail and
wire fraud statutes], the term 'scheme or artifice to defraud'
includes a scheme or artifice to deprive another of the intangible
right of honest services." See Skilling, 561 U.S. at 402.
In 2010, the Supreme Court considered a vagueness
challenge to § 1346 in Skilling. See id. The defendant, a private
sector actor, was "charged . . . with conspiring to defraud [a
company's] shareholders by misrepresenting the company's fiscal
health, thereby artificially inflating its stock price" and
allowing the defendant to profit through his salary, bonuses, and
stock sales. Id. at 413. He contended that § 1346 did not provide
fair notice of the conduct it prohibits and that its "standardless
sweep" would enable arbitrary prosecutions. Id. at 403 (quoting
defendant's brief); see also, e.g., Kolender v. Lawson, 461 U.S.
352, 357 (1983) ("As generally stated, the void-for-vagueness
doctrine requires that a penal statute define the criminal offense
with sufficient definiteness that ordinary people can understand
what conduct is prohibited and in a manner that does not encourage
arbitrary and discriminatory enforcement.").
Recognizing the constitutional due process concerns,
including fair notice and vagueness, raised by the statute, the
Court chose to narrow the statute, rather than invalidate it, to
"preserve what Congress certainly intended the statute to cover,"
- 44 - that is, what the Court called the "core" of the pre-McNally honest
services doctrine. Skilling, 561 U.S. at 404. This core "involved
fraudulent schemes to deprive another of honest services through
bribes or kickbacks supplied by a third party who had not been
deceived." Id.; see also id. at 407 ("Although some applications
of the pre-McNally honest-services doctrine occasioned
disagreement among the Courts of Appeals, these cases do not cloud
the doctrine's solid core: The 'vast majority' of the honest-
services cases involved offenders who, in violation of a fiduciary
duty, participated in bribery or kickback schemes." (quoting
United States v. Runnels, 833 F.2d 1183, 1187 (6th Cir. 1987))).
"To preserve the statute without transgressing constitutional
limitations, [the Court] . . . h[e]ld that § 1346 criminalizes
only the bribe-and-kickback core of the pre-McNally case law."
Id. at 408-09. The defendants here argue that the conduct charged
in the indictment does not involve the core honest services
doctrine identified in Skilling.
The Court explained that when the narrowed § 1346 is
"[c]onfined to these paramount applications," it "presents no
vagueness problem." Id. at 404. Turning to the issue of notice,
the Court said that, "'whatever the school of thought concerning
the scope and meaning of' § 1346, it has always been 'as plain as
a pikestaff that' bribes and kickbacks constitute honest-services
fraud." Id. at 412 (quoting Williams, 341 U.S. at 101). And the
- 45 - narrowing construction limited the risk of arbitrary prosecutions
by the fact that § 1346's "prohibition on bribes and kickbacks
draws content not only from the pre-McNally case law, but also
from federal statutes proscribing -- and defining -- similar
crimes," id. (citing, inter alia, 18 U.S.C. § 666(a)(2)), such
that a "criminal defendant who participated in a bribery or
kickback scheme . . . cannot tenably complain about prosecution
under § 1346 on vagueness grounds," id. at 413.
Because there was no allegation -- or plausible way of
reading the facts to suggest -- that Skilling himself had
participated in a bribery or kickback scheme, the Court concluded
that he had not committed honest services fraud. Id.
The defendants contend that their payments to the
universities, the parties whose interests were purportedly
betrayed by their agents, cannot constitute bribes under
Skilling's interpretation of § 1346. There is no charge of
kickbacks in the indictment.
In response, the government relies on Skilling's
statement that its narrow construction of § 1346's "prohibition on
bribes . . . draws content not only from the pre-McNally case law,
but also from federal statutes proscribing -- and defining --
similar crimes. See, e.g., 18 U.S.C. §§ 201(b), 666(a)(2); 41
U.S.C. § 52(2) . . . ." 561 U.S. at 412. The government relies
- 46 - on this language to argue that § 1346 effectively incorporates a
version of § 666, such that -- borrowing the language of § 666 --
§ 1346 covers "[w]hoever . . . corruptly gives, offers, or agrees
to give anything of value to any person, with intent to influence
or reward an agent of [a principal]." 18 U.S.C. § 666.
Although the question is a close one, we conclude that
the government's reliance on this single statement in Skilling is
misplaced. The government's reading is, for several reasons,
impossible to reconcile with Skilling's language and its core
holding that § 1346 covers only "the bribe-and-kickback core of
the pre-McNally case law." 561 U.S. at 409. The government has
not identified any pre-McNally case involving a purported bribe
paid to the victim of an alleged bribery scheme. Further, the
statutes in force while courts developed the pre-McNally case law
defining "bribery" do not support the conclusion that payments to
the purportedly betrayed party constitute "bribes" as that term is
traditionally understood or used in Skilling. Nor is there any
support for that view in other legal sources defining "bribery."
Rather than interpreting the language the government cites to
override these considerations, we understand it instead to
constrain the honest services doctrine's sweep. And this
understanding that Skilling's reference to other statutes does not
mean that § 1346 is coextensive with these other statutes draws
additional support from the facts that those statutes define
- 47 - offenses broader than traditional bribery and that those statutes
may vary from each other in their coverage.
The government's reading ignores Skilling's core
"hold[ing] that § 1346 criminalizes only the bribe-and-kickback
core of the pre-McNally case law." Id.; accord id. at 408
(confining the scope of § 1346 "to the core pre-McNally
applications"); see id. at 404-09 (looking to "the doctrine
developed in pre-McNally cases in an endeavor to ascertain the
meaning of the phrase 'the intangible right of honest services'"
(quoting 18 U.S.C. § 1346)). The government has not cited any
pre-McNally honest services case involving a purported bribe paid
to an agent's purportedly betrayed principal, and does not dispute
that no pre-McNally case involved such a payment. Skilling
embodies a narrower understanding of the meaning of "bribery" for
purposes of honest services fraud that cuts against concluding
that the conduct involved here, which does not fall "[i]n the
main . . . [of] the pre-McNally cases," is a "bribe" in the sense
meant by Skilling.16 Id. at 404.
The government emphasizes Skilling's characterization of
pre-McNally case law as recognizing the potential for honest
16 The defendants argue that the lack of pre-McNally precedent "is dispositive" and requires acquittal. We need not reach so far; even assuming that the lack of pre-McNally precedent is only a relevant but not a dispositive factor in our analysis, we reach the same result.
- 48 - services fraud "[e]ven if [a] scheme occasioned a money or property
gain for the betrayed party." Id. at 400 (citing United States v.
Dixon, 536 F.2d 1388, 1400 (2d Cir. 1976)). But the government
does not contend that the Court had in mind a case like this one,
where the alleged bribe was paid directly to the purportedly
betrayed party. In fact, the cases to which the Court referred
appear to have involved traditional bribery fact patterns that
happened incidentally to benefit the agent's principal
financially. See id. (citing, inter alia, Shushan v. United
States, 117 F.2d 110, 115, 119 (5th Cir. 1941)). Dixon, the case
the Court cited for the proposition that schemes that financially
benefitted the principal could still be actionable under pre-
McNally doctrine, did not involve bribery at all; it simply stated
in passing that honest services fraud could cover schemes that
"enriched" the principal. 536 F.2d at 1400 (citing United States
v. Isaacs, 493 F.2d 1124 (7th Cir. 1974) (per curiam)). In support
of that proposition, Dixon, in turn, cited a Seventh Circuit
decision in which racing interests bribed certain Illinois
officials to allow additional racing events, which incidentally
increased tax revenues. See Isaacs, 493 F.2d at 1135, 1139, 1149-
51. That is a classic bribery fact pattern, distinct from the
direct payments to the university principals involved here.
Nor do statutes in effect during the pre-McNally period
show that a payment to the purportedly betrayed party would have
- 49 - been considered a "bribe." As discussed above, until its amendment
in 1986, shortly before the Court decided McNally, the bank bribery
statute, 18 U.S.C. § 215, expressly excluded payments to an agent's
principal from its coverage. See Act of Oct. 12, 1984, § 1107(a),
98 Stat. at 2146 (prohibiting "directly or indirectly, giv[ing],
offer[ing], or promis[ing] anything of value to any [agent] of any
financial institution . . . or offer[ing] or promis[ing] any such
[agent] to give anything of value to any person or entity, other
than such financial institution, for or in connection with any
transaction or business of such financial institution" (emphasis
added)). This limitation in scope undercuts any argument that it
was clear before McNally that "bribery" would encompass a payment
to the purportedly betrayed party.
Other legal sources defining "bribery" either weigh
against the government's position or are at most ambiguous.
Black's Law Dictionary, for example, defines "bribery" as "[t]he
corrupt payment, receipt, or solicitation of a private favor for
official action." Bribery, Black's Law Dictionary (11th ed. 2019)
(emphasis added). While the government contends that the
university insiders stood to benefit professionally from the
defendants' payments, describing this type of indirect benefit
from a payment to a university principal -- the alleged victim of
the scheme -- as a "private favor" is at best a stretch. Cf.
United States v. Thompson, 484 F.3d 877, 884 (7th Cir. 2007)
- 50 - (observing, in a pre-Skilling prosecution for honest services
fraud under § 1346, that "[t]he United States has not cited, and
we have not found, any appellate decision holding that an increase
in official salary, or a psychic benefit such as basking in a
superior's approbation (and thinking one's job more secure), is
the sort of 'private gain' that makes an act criminal" under
§ 1346, and rejecting the prosecution's theory (quoting United
States v. Bloom, 149 F.3d 649, 655 (7th Cir. 1998))); see also,
e.g., H. James, When Is a Bribe a Bribe? Teaching a Workable
Definition of Bribery, 6 Teaching Bus. Ethics 199, 209–16 (2002)
("Any payment made to a principal, for any purpose, is not by
definition a bribe.").
The government's attempt to circumvent this lack of
authority by relying on Skilling's citation to other
anticorruption statutes fails. The government's reading of § 1346
to incorporate a version of § 666 eliminates the important
limitations on liability included in § 666, including the
requirement that affected programs receive federal funds and the
threshold dollar value involved, which we described above.17 See
18 U.S.C. § 666(a)-(b). More importantly, the Supreme Court in
17 The jury instructions that the government requested, and those that were ultimately given at trial, for example, did not require the jury to find that the alleged bribes satisfied either of those requirements in order to convict under an honest services theory.
- 51 - Skilling emphasized these specific limitations in describing the
statutes. See 561 U.S. at 413 n.45.
Critically, the statement on which the government relies
appears in the Court's discussion of why its construction of § 1346
will prevent arbitrary prosecutions. See id. at 412-13. In that
context, the citation is best read as constraining honest services
prosecutions by referring prosecutors to statutes that
collectively offer general guidance as to whether particular
conduct may be actionable, rather than as expanding the concept of
"bribery" to incorporate even the outermost limits of the cited
statutes' scopes. Indeed, the government's argument would stretch
criminal liability beyond those statutes' context-specific
limitations. Skilling does not hold, as the government argues,
that any conduct that might violate those other statutes also
violates § 1346.
Our reading properly accounts for the fact that Congress
crafted § 666 and other federal anticorruption statutes to target
particular classes of misconduct, and thus did not necessarily
confine those statutes to criminalizing the classic crime of
"bribery" in the sense described in Skilling and at the core of
the pre-McNally case law. The Supreme Court has repeatedly
observed that § 666 uses "expansive, unqualified language" in
service of Congress's unique interest in protecting federal funds
from misuse. Salinas, 522 U.S. at 56; see id. at 56-59; see also
- 52 - Sabri, 541 U.S. at 606-07. That language sweeps beyond the type
of "bribery" reflected in pre-McNally law and the other legal
sources discussed above. We do not think that while narrowly
construing § 1346 to cover "the bribe-and-kickback core of the
pre-McNally case law," Skilling, 561 U.S. at 409, the Court meant
simultaneously to extend § 666's broad language to apply outside
the particular context for which Congress designed it.
Indeed, the government's reading would threaten to
render § 666 (and other specialized anticorruption statutes)
superfluous, since § 1346 would cover the same ground while also
extending to other contexts. Cf. id. at 413 n.45 (addressing
potential "superfluous[ness]" between § 1346 and more specialized
anticorruption statutes).18 Our reading recognizes the statutes'
distinct roles, with § 666 covering a broader set of types of
conduct but applying only in a narrower context. Section 666's
breadth is inseparable from its narrow focus.
The government ignores the fact that Skilling itself
recognized that other federal anticorruption statutes may vary in
scope. See id. at 412-13 (describing these statutes as
"defining . . . similar [but not necessarily identical] crimes").
18 Skilling explained that construing § 1346 to overlap to some degree with specialized anticorruption statutes does not render § 1346 superfluous because it applies to a broader range of contexts. See 561 U.S. at 413 n.45. It is a different question whether reading § 1346 to cover everything that § 666 covers, as well as other conduct, would render § 666 superfluous.
- 53 - Given the number of potentially relevant statutes, the variation
resulting from the government's reading would be problematic. For
example, this variation would have existed in this case under the
pre-1986 version of the bank bribery statute, § 215, which
explicitly excluded payments to an agent's principal. Compare Act
of Oct. 12, 1984, § 1107(a), 98 Stat. at 2146 (pre-1986 § 215),
with, e.g., 18 U.S.C. § 666(a)(2), and Act of Oct. 23, 1962, Pub.
L. No. 87-849, 76 Stat. 1119, 1119 (enacting 18 U.S.C. § 201, the
federal officials bribery statute, which potentially applies to
payments to "any public official" or "any other person").
Construing § 1346 to cover conduct not covered by the
core pre-McNally understanding of "bribes" would not provide
sufficient notice for "ordinary people [to] understand what
conduct is prohibited." Skilling, 561 U.S. at 402 (quoting
Kolender, 461 U.S. at 357). An ordinary person would not be on
notice that a payment to a purportedly betrayed party was bribery
within the core of pre-McNally law, raising the same concern which
motivated the Supreme Court in Skilling to construe honest services
fraud as it did. Our holding that § 666 may cover the defendants'
conduct does not cure this concern: § 1346 does not have § 666's
clear text, and, as we have explained, Skilling did not hold that
liability under any other federal anticorruption statute suffices
to render an act criminal under § 1346.
- 54 - Various canons and other interpretive methodologies
employed by the Supreme Court reinforce our conclusion that, after
Skilling, § 1346 does not cover the defendants' conduct as honest
services fraud. Unlike in our interpretation of § 666, these
interpretive tools do apply here because the applicability of
§ 1346 to the charged conduct has little historical antecedent and
would introduce ambiguity. And the Supreme Court "ha[s] instructed
that 'ambiguity concerning the ambit of criminal statutes[,
including the mail and wire fraud statutes,] should be resolved in
favor of lenity.'" Cleveland v. United States, 531 U.S. 12, 25
(2000) (quoting Rewis v. United States, 401 U.S. 808, 812 (1971))
(applying rule of lenity in non-honest services mail fraud
prosecution). Similarly, in the honest services context, the Court
has repeatedly "decline[d] to 'construe [federal criminal]
statute[s] in a manner that leaves [their] outer boundaries
ambiguous and involves the Federal Government in setting
standards' of 'good government for local and state officials.'"
McDonnell v. United States, 136 S. Ct. 2355, 2373 (2016) (quoting
McNally, 483 U.S. at 360); see, e.g., Skilling, 561 U.S. at 408-
12; McNally, 483 U.S. at 360. Indeed, embracing the government's
reading of § 1346 would go beyond "'setting standards' of 'good
[state and local] government,'" McDonnell, 136 S. Ct. at 2373
(quoting McNally, 483 U.S. at 360), and stretch honest services
bribery to potentially criminalize such parental actions as, for
- 55 - example, donations to preschools by parents who hope to gain
admission for their children. Further, the contrast between the
Court's repeated instruction to apply the honest services doctrine
narrowly and its broad, textualist application of § 666 supplies
another reason not to read Skilling as incorporating § 666 into
§ 1346.
We should not be misunderstood. We do not say the
defendants' conduct is at all desirable. That is far different
from the issue we face of whether that conduct is in violation of
§ 1346's honest services language as interpreted by the Supreme
Court in Skilling. As Skilling explained, "[i]f Congress desires
to go further, . . . it must speak more clearly than it has." 561
U.S. at 411 (quoting McNally, 483 U.S. at 360). The government's
honest services theory cannot support the defendants' mail and
wire fraud convictions.
Independently of honest services fraud, the government
argues that we should affirm the defendants' mail and wire fraud
convictions on the distinct property fraud theory. The mail and
wire fraud statutes prohibit use of the mails or wires,
respectively, to effect "any scheme or artifice to defraud, or for
obtaining money or property by means of false or fraudulent
pretenses, representations, or promises." 18 U.S.C. §§ 1341, 1343.
A prosecution for property fraud under these statutes requires the
- 56 - government to prove "that the 'object of the fraud . . . [was]
[money or] property in the victim's hands.'" Pasquantino v. United
States, 544 U.S. 349, 355 (2005) (second alteration and omission
in original) (internal quotation marks omitted) (quoting
Cleveland, 531 U.S. at 26).
The asserted "property" that the government argues was
obtained here is "admissions slots." Indeed, the district court
instructed the jury that, "[f]or purposes of the mail and wire
fraud statutes, admission[s] slots are the property of the
[u]niversities."
The defendants contend, however, that admissions slots
can never qualify as property for purposes of the mail and wire
fraud statutes, and thus that their convictions under these
statutes must be reversed for that reason alone. As a fallback
argument, they also contend that even if some admissions slots
could be property for purposes of those statutes, we must vacate
the convictions because, given the limitations of the government's
arguments and evidence in this case, the district court's
instruction that "admissions slots" are property was error.
The government responds to these two different defense
arguments with one categorical assertion. It contends that
"admissions slots" at the universities supply the necessary
- 57 - property because admissions slots by their nature constitute
property.19
We reject the government's argument that admissions
slots at any university always qualify as property for purposes of
the mail and wire fraud statutes. The government's categorical
argument fails, for example, to recognize even the well-known
variations in types of admissions slots offered at the university
level; for instance, early admission, rolling admission,
conditional admission, waiting-list admission, and deferred
admission. Nor does the government's categorical approach account
for the fact that admissions occur at all levels of education,
from nursery school through postgraduate studies, and involve
millions of students and parents. We reject, too, the defendants'
equally categorical contention to the contrary and so reject their
argument that their property-based convictions under these
statutes must be reversed on the ground that the government did
not prove that property was involved in the commission of those
offenses because "admissions slots" cannot be property.
But we do agree with the defendants' more limited
fallback argument that the jury instruction erred in stating, based
on the arguments and record in this case, that "admission[s] slots
19 The government does not develop any argument on appeal that the universities were defrauded of money or property, such as instructional resources, associated with the defendants' children's enrollment.
- 58 - are the property of the [u]niversities." We see no basis for
concluding that such a categorical statement is invariably true of
any admissions slot, and the government has not identified any
basis in the record that would indicate that the instruction could
be upheld on the ground that there was evidence that the admissions
slots in question in the charged offenses in this case qualified
as property as a matter of law.
We emphasize the narrowness of our holding: We do not
hold that admissions slots cannot ever be property. Nor do we
hold that the jury instruction given by the district court could
never be appropriate. The resolution of these questions will
require much more detail, both legal and factual, on the nature of
the purported property interest at issue. It may well be that
there must be resolution of disputed facts by a jury and resolution
of the ultimate legal question by the court. A court may well be
able to validly conclude on the evidence in a particular case that
admissions slots constitute property. Such increased detail would
better position a district court to consider, for example, whether
dictionaries, case law, treatises, or other legal sources
establish that similar interests are treated as property, see,
e.g., id. at 356 (citing such sources); Carpenter v. United States,
484 U.S. 19, 26 (1987) (similar), and whether expert educational
and/or economic evidence is warranted. But here, the government
does not identify from the record of this case adequate details
- 59 - about the admissions slots at issue, or admissions slots generally,
that would support the instruction given. Thus, we see no basis
for concluding that the district court validly instructed the jury
that, "[f]or purposes of the mail and wire fraud statutes,
admission[s] slots are the property of the [u]niversities."
The fundamental problem with the government's argument
as to why the instruction was not in error is that the government
fails to describe the purported property interest in anything other
than highly general, abstract terms, leaving us no firm basis on
which to assess whether the admissions slots at issue here
constitute property. The government's brief describes such slots
as economically valuable and exclusively within the power of a
university to issue, revoke, or prohibit transfer of, and on that
basis alone it asks us to conclude that they are property.
Under controlling Supreme Court precedent, we do not
accept the government's argument that admissions slots always
qualify as property for purposes of the mail and wire fraud
statutes merely because they may bear some hallmarks of
traditionally recognized forms of property. A series of Supreme
Court decisions have counseled that courts should resort to
traditional notions of property in construing the mail and wire
fraud statutes. See Pasquantino, 544 U.S. at 356 (citing treatises
and case law in conducting property analysis); Cleveland, 531 U.S.
- 60 - at 24 ("We reject the Government's theories of property rights [in
part] because they stray from traditional concepts of property.");
Carpenter, 484 U.S. at 26; cf. Shaw v. United States, 137 S. Ct.
462, 466-67 (2016) (citing treatises and case law in analyzing
whether property requirement was satisfied under bank fraud
statute, 18 U.S.C. § 1344). Carpenter, for example, held that
"[c]onfidential business information" constitutes property under
§§ 1341 and 1343 because it "has long been recognized as property";
the Court cited in support of its conclusion an array of cases, a
statute, and a treatise. 484 U.S. at 26. Based on these decisions,
the parties agree that "[i]ntangible rights can qualify [as
property] . . . if they have historically been treated as property
or bear its traditional hallmarks."
The Supreme Court's decision in Pasquantino explained
that we must determine whether the alleged property interest
constitutes "'property' as that term ordinarily is employed." 544
U.S. at 356; see id. ("When interpreting a statute, we must give
words their ordinary or natural meaning." (quoting Leocal v.
Ashcroft, 543 U.S. 1, 9 (2004) (internal quotation marks
omitted))). The Court's mail and wire fraud decisions offer
several potentially relevant guideposts for that inquiry,
including whether the purported property at issue falls within a
dictionary definition of that term, whether it has been recognized
as property in case law or other legal sources, and whether it
- 61 - exhibits traditional attributes of property. See, e.g., id. at
355-57. We consider these factors in turn, none of which support
the government's categorical position, in defending the
instruction, that admissions slots always constitute property.
Pasquantino itself relied in large part on Black's Law
Dictionary's definition of "property" for guidance on the term's
ordinary meaning. See id. at 356 (citing Property, Black's Law
Dictionary (4th ed. 1951)). Here, however, the government does
not make any argument based on the dictionary definition of
"property."
The government does offer two cases recognizing
interests purportedly analogous to admissions slots as property,
but both are easily distinguishable. The government cites the
Supreme Court's decision in Bridge v. Phoenix Bond & Indemnity
Co., 553 U.S. 639 (2008), which allowed a group of plaintiffs who
regularly sought to purchase tax liens at county auctions to pursue
a RICO claim against a rival bidder based on allegations that the
rival had committed mail fraud by fraudulently attesting that it
had complied with a county rule regulating the number of bids that
an entity could make. See id. at 642-44, 647-48, 661. In fact,
Bridge's analysis did not address the money or property
requirement -- the Court accepted the case to answer a different
question about the interaction between the RICO and mail fraud
statutes. Id. at 641-42. Nonetheless, the government argues that
- 62 - it held "that [the] false representation[s] to secure . . . extra
bid[s] . . . , thereby depriving other bidders of the opportunity
to obtain the liens, w[ere] . . . 'act[s] . . . indictable as
mail fraud.'" (Quoting id. at 648.) To the extent the government
seeks to use this case, it misses the fact that the property the
fraudulent bidder in Bridge sought to obtain, and of which the
plaintiffs claimed to be defrauded, was not the bids, but the
"valuable liens" available in the auctions. Id. at 648; cf.
Pasquantino, 544 U.S. at 356 (recognizing a "right to be paid
money" as property under mail and wire fraud statutes).
The government's other authority, United States v.
Frost, 125 F.3d 346 (6th Cir. 1997), held that a university "ha[d]
a property right in [unissued] degree[s]." Id. at 367. The
government contends that admissions slots are analogous to
unissued degrees. We agree with the defendants, however, that
unissued degrees are meaningfully different from admissions slots,
at least insofar as the government has described such slots. Frost
itself observed that a degree represents the culmination of the
transaction between the university and the student, in which the
university, "in return for tuition money and scholarly
effort, . . . agrees to provide an education and a degree." Id.
So far as the government's arguments show, an admissions slot, in
contrast, involves an offer to participate in that transaction --
one that a potential student may or may not accept. Even assuming
- 63 - Frost's correctness, it does not establish that admissions slots
are a historically recognized form of property interest.
The government falls back to an argument that admissions
slots are necessarily property because they "bear the primary
traditional hallmarks of property."20 It contends that an interest
qualifies as property if it exhibits (1) "exclusivity," see
Carpenter, 484 U.S. at 26-27 (observing that "exclusivity is an
important aspect of confidential business information and most
private property"), and (2) "economic value," see Pasquantino, 544
U.S. at 355-57 (holding that "[v]aluable entitlement[]" to be paid
taxes is property); Cleveland, 531 U.S. at 22 (observing that
unissued licenses had economic value to Louisiana, but concluding
that this value alone did not make the licenses property in the
State's hands). It then asserts that admissions slots always have
these features. We conclude that this purported test is too broad,
as it would construe "property" to reach abstract interests that
the Court, as well as several circuits, have concluded fall outside
the statutes' scope.
20 It may be that underlying the government's argument is an assumption that a contractual interest necessarily creates a property interest. But this circuit has never so held, and Carpenter expressly rejected that argument as to honest services fraud. See 484 U.S. at 25 (citing McNally, 483 U.S. at 355, 359 n.8, 360) (explaining that a "contractual right to [an employee's] honest and faithful service" is not a cognizable property interest in this context).
- 64 - Portions of the government's brief could be read to argue
that economic value alone suffices to turn an intangible interest
into a property right under the mail and wire fraud statutes. In
particular, the brief asserts that Pasquantino defined property as
simply "something of value." While the Court did use that phrase,
Pasquantino, 544 U.S. at 355 (quoting McNally, 483 U.S. at 358),
it did not state that economic value alone brought the purported
property at issue within the scope of §§ 1341 and 1343; instead,
it looked to a legal dictionary, treatises, and case law to
determine whether the particular "[v]aluable entitlement[]" at
issue constituted property,21 id. at 356; see id. at 355-57.
But even to the extent the government argues that
admissions slots are always property because they are, by their
nature, both exclusive and economically valuable, its proposed
test sweeps too broadly. McNally illustrates the problem. The
purported right to honest services that McNally declined to
recognize as property would satisfy both of the test's prongs: the
right belonged exclusively to the entity to which honest services
were owed, cf. Skilling, 561 U.S. at 401 (characterizing pre-
McNally honest services doctrine as proscribing "breache[s of an
employee's] allegiance to his employer" (quoting United States v.
21 A test looking only at whether the purported property interest has economic value would also sweep too broadly for all the same reasons as a test requiring both economic value and exclusivity, discussed below.
- 65 - McNeive, 536 F.2d 1245, 1249 (8th Cir. 1976))), and plainly held
economic value for that entity. The proposed test's failure to
reach the right result on McNally's facts demonstrates its
overinclusiveness.22
The proposed test is also incompatible with multiple
circuit decisions holding that various intangible interests that
are both exclusive and valuable fall outside the scope of §§ 1341
and 1343. For example, the government's theory conflicts with the
Sixth Circuit's decision in United States v. Sadler, 750 F.3d 585
(6th Cir. 2014). There, the government charged one of the
defendants, Nancy Sadler, with wire fraud in connection with the
purchase of controlled substances. See id. at 588-89. The
prosecution did not dispute that Sadler paid full price for the
pills at issue; instead, to satisfy the property requirement, it
argued that Sadler had lied to the sellers about the patients to
22 The defendants argue that the government's test also conflicts with Cleveland, which held that unissued gaming licenses possessed by the State of Louisiana did not qualify as property for mail fraud purposes despite the State's exclusive control over the licenses, 531 U.S. at 23-24, and the fact that they could potentially generate revenue (in the form of application processing fees) even while in the State's possession, id. at 22. But the Court reached that result because, in administering the licensing scheme, the State acted as a regulator, rather than as a property holder. See id. at 20-25. That reasoning would not apply to entities, like the universities, without regulatory authority. Were Cleveland the only obstacle, then, the government could have proposed the same test but restricted its application to private parties. There is no such easy fix for the test's incompatibility with McNally.
- 66 - whom she would distribute the pills, "depriv[ing] the [sellers]
of . . . a right to accurate information before selling the pills."
Id. at 590-91. The court rejected this argument, reasoning that
"the ethereal right to accurate information" did not qualify as a
property right, in part because it did not "amount[] to an interest
that 'has long been recognized as property.'" Id. at 591 (quoting
Cleveland, 531 U.S. at 23); accord United States v. Yates, 16 F.4th
256, 265 (9th Cir. 2021). The government's proposed test would
call for the opposite result, since a party's purported right to
accurate information before engaging in a transaction would
presumably both have economic value for and belong exclusively to
that party. See also United States v. Bruchhausen, 977 F.2d 464,
467-68 (9th Cir. 1992) (declining to recognize as property a
seller's right to control "the destination of [its] products after
sale," even though such a right would, by hypothesis, be exclusive
to the seller and potentially economically valuable).
The government's highly general argument would
criminalize a wide swath of conduct. Under the government's broad
understanding of property applied to admissions slots as a class,
embellishments in a kindergarten application could constitute
property fraud proscribed by federal law. Cleveland explained
that it "reject[ed] the Government's theories of property rights
not simply because they stray[ed] from traditional concepts of
property," but also "because [they] invite[d the Court] to approve
- 67 - a sweeping expansion of federal criminal jurisdiction in the
absence of a clear statement by Congress." 531 U.S. at 24; cf.
Yates, 16 F.4th at 265 (rejecting property theory that "would
transform all deception into fraud").
Further, as the Court stated in Cleveland:
[T]o the extent that the word "property" is ambiguous as placed in [the mail and wire fraud statutes], we have instructed that "ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity." This interpretive guide is especially appropriate in construing [the mail and wire fraud statutes] because . . . mail [and wire] fraud [are] predicate offense[s] under RICO . . . . In deciding what is "property" [in this context], we think "it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite."
531 U.S. at 25 (citations omitted) (first quoting Rewis, 401 U.S.
at 812; and then quoting United States v. Universal C.I.T. Credit
Corp., 344 U.S. 218, 222 (1952)); see 18 U.S.C. § 1961(1)(B)
(defining mail and wire fraud as predicate offenses for purposes
of RICO statute).
At the same time, we must also reject the defendants'
argument that no admissions slot at any university can qualify as
property for purposes of the mail and wire fraud statutes and thus
that their property-based convictions under those statutes must be
reversed on this basis. The defendants characterize admissions
- 68 - slots as mere "offer[s] to engage in a transaction: The college is
offering to provide educational services to a student in exchange
for tuition payments." However, the defendants do not address the
complexities that would arise were there to be evidence that a
particular admissions slot is more than a mere offer to transact.
The same complexities which undercut the government's argument
undercut this argument by the defense. Cf. Tamboura v. Singer,
No. 19-cv-03411, 2020 WL 2793371, at *1-5 (N.D. Cal. May 29, 2020)
(dismissing for lack of standing two class action lawsuits to
recover application fees from universities at which Singer
arranged side doors alleging that the plaintiffs "did not receive
the 'fair' and 'objective' admissions process that they were
promised" in a "bargain-for-exchange," only because the plaintiffs
did not allege that they "applied for, were being considered for,
or were denied . . . athletic spot[s]," which were the "focus[]"
of "Singer's scheme").
We thus cannot accept the defendants' contention that
admissions slots can never be property, such that we could reverse
their property-based convictions on that ground alone.
3.
There remains the defendants' argument that their
property-based convictions must be vacated because, even if
admissions slots could constitute property in some circumstances,
the jury instruction here was incorrect. The defendants advance
- 69 - two distinct arguments in this regard, one of which we cannot
accept but the other of which we do.
The defendants take aim at the instruction in part
because they contend that the question whether admissions slots
constitute property is -- as a matter of law -- a question of fact
to be decided by the jury. But neither party has provided any
briefing on whether the question whether an interest constitutes
property is, regardless of the facts of the case, a question of
law to be decided by the judge. Indeed, the parties' arguments
are simply not clear as to what issues would present questions of
fact to be determined by a jury, much less what are questions of
law to be determined by a court. Neither party has cited any
Supreme Court case law resolving this issue, and, as best we can
tell, the Supreme Court has not resolved the matter. Perhaps it
will in upcoming cases. But we do not decide important issues of
law based on vague, broad, and unsupported assertions by the
parties in a case. We need not resolve the issue here, and nothing
in this opinion should be taken to suggest that the ultimate
determination of whether admissions slots are property is an issue
for the jury.
That said, we do find persuasive the defendants'
separate contention that the jury instruction was erroneous here
because it instructed that "admission[s] slots are the property of
the [u]niversities." There is some ambiguity as to whether, in
- 70 - making this instruction, the district court accepted the
government's contention that any admissions slot at any university
necessarily qualifies as property. If so, then we have already
explained why that conclusion is incorrect.
If, however, the instruction was based on a more specific
determination regarding the admissions slots at the universities
at issue here, we fail to see the basis in the record for such a
conclusion. We do not understand admissions processes to be
universally the same across universities, and the meaning of
"admissions slot" may differ across institutions, yet the
government's argument treats them interchangeably and in sweeping
terms. Indeed, the government has cited no evidence and offered
no argument specific to the admissions slots at the schools at
which these two defendants sought admission for their children.
Nor does the government offer any guidance -- or record
citations -- for understanding the contours of these specific
universities' admissions policies and processes or the rights,
benefits, or obligations, if any, associated with obtaining an
admissions slot at these universities. It develops no argument,
for example, that either a student's application or a university's
offer of admission creates a contractual relationship between the
applicant and the school. Nor does it argue that every student
awarded an admissions slot will eventually enroll -- in fact, it
acknowledges, as it clearly must, that some will not.
- 71 - With respect to what a proper jury instruction would
say, or even whether one would be proper in this case given a more
developed record on remand, we are not in a position to address
the question, given the nature of the arguments that have been
made to us. We do emphasize, though, that the argument that
admissions slots are categorically property because they are
exclusive and have economic value is insufficient. And, to the
extent there are more case-specific arguments about the specific
admissions slots involved in the charged offenses in a given case,
we emphasize only that any argument that those admissions slots
constitute property would have to show that, in light of what the
record revealed about the nature of those particular slots, they
would satisfy the standards that we have described above that the
Supreme Court requires us to apply to determine whether an
intangible right is a species of property.
We recognize that our analysis leaves considerable
uncertainty as to how district courts should apply the mail and
wire fraud statutes' property requirement in cases involving
admission to educational institutions. There are sound reasons to
be prudent and cautious about criminalizing conduct, even
unethical conduct, in this complicated area affecting so many
students and parents.
- 72 - 4.
We hold that, based on the arguments made by the
government, the district court's jury instruction was error. We
therefore vacate the defendants' convictions on the mail and wire
fraud charges, including the related conspiracy charges.
IV. Acceptance of the Defendants' Argument that There Was a Prejudicial Variance with Respect to the Conspiracy Charges
We turn to the defendants' core contention that under
Supreme Court and First Circuit precedent the conspiracy charges
are of an impermissible "rimless wheel" type forbidden by law,
depriving them of fair trials.23 Count One of the indictment
alleged an overarching nationwide conspiracy among Singer, his
staff, university insiders, and parents to facilitate the parents'
children's admission to Georgetown, Harvard, Stanford, UCLA, and
USC by means of mail and wire fraud, in violation of §§ 1341, 1343,
and 1346. Count Two alleged an overarching nationwide conspiracy
among a subset of the same individuals to secure children's
admission to USC by means of federal programs bribery, in violation
of § 666. The defendants contend that the evidence is at most
sufficient to show, however, that they agreed to join only a
narrower conspiracy, which was to gain admission for each's own
respective child or children (rather than to gain admission also
23 The defendants are supported in this view by an amicus brief from eleven former U.S. Attorneys.
- 73 - for other parents' children). As a result, they contend that there
was a variance as to both counts, because that narrower conspiracy
is not the broader one charged.24
The defendants' characterization of the charged
conspiracy as a "rimless wheel" derives from the Supreme Court's
decision in Kotteakos v. United States, 328 U.S. 750 (1946).
There, the government alleged that a single hub figure had assisted
otherwise unrelated clients or groups of clients in fraudulently
obtaining separate loans. See id. at 752-55. The government
indicted the hub figure and his clients as part of one overarching
conspiracy. Id. at 752-53. The Court concluded that the evidence
did not show that several client-defendants had agreed to
participate in a single conspiracy with the other clients.25 See
id. at 754-55. Instead, "the pattern was that of separate spokes
24 For convenience, we will refer to the two charged conspiracies as "the charged conspiracy" because the defendants contend that there was a variance because each charged conspiracy was broader than what they contend the evidence at most suffices to show -- their respective agreements to each join a conspiracy to gain admission for their own child or children. 25 The government conceded in Kotteakos that the evidence did not support a finding of a single conspiracy. See 328 U.S. at 754-56, 768-69. The Court endorsed that conclusion in both Kotteakos and Blumenthal v. United States, 332 U.S. 539 (1947), and its reasoning in doing so informs our analysis. See Kotteakos, 328 U.S. at 754-56, 768-69; Blumenthal, 332 U.S. at 558; cf., e.g., Brito v. Garland, 22 F.4th 240, 248 (1st Cir. 2021) (noting that this court is "bound to follow 'considered dicta' of the Supreme Court" (quoting United Nurses & Allied Pros. v. NLRB, 975 F.3d 34, 40 (1st Cir. 2020))).
- 74 - meeting at a common center . . . without the rim of the wheel to
enclose the spokes," which "made out a case, not of a single
conspiracy, but of several." Id. at 755 (internal quotation marks
omitted); see id. at 754-55. Further, the Court held that, while
the failure to prove the single conspiracy charged might amount to
harmless error in some cases, the defendants had been prejudiced
by a defect in the jury instructions. See id. at 767-72. More
generally, the Court warned of the danger of prejudice to
defendants in cases where the government charges a broad conspiracy
but proves only a collection of narrower ones, as the overbroad
charge increases the risk that a jury will be exposed to and weigh
against a defendant evidence that is actually relevant only to a
separate conspiracy in which the defendant was not a participant.
See id. at 766-67.
Abdelaziz and Wilson contend that the evidence fits
Kotteakos's "rimless wheel" model, with Singer and his associates
as the hub and parents as the spokes. They assert that, whatever
agreements might have existed among Singer and other parents, the
evidence would not allow a reasonable jury to find that each of
Abdelaziz and Wilson agreed to conspire with those parents. And
they argue that this variance between the charges in the indictment
and the proof at trial prejudiced them because the overarching
conspiracy charges allowed the government to introduce evidence
related to other parents' activities that undermined Abdelaziz's
- 75 - and Wilson's defenses and led the jury to convict them for those
other parents' conduct and not for their own actions. In
particular, the defendants contend that the overarching conspiracy
charge enabled the prosecution to present to the jury inflammatory
evidence, in the form of both witness testimony and recorded calls,
of other parents' obviously culpable conduct in which Abdelaziz
and Wilson played no part.
This court determines whether convictions for conspiracy
must be vacated on the ground that the scope of the conspiracy
proved at trial varied from the conspiracy that was charged in the
indictment by answering three questions:
(1) Is the evidence sufficient to permit a jury to find the [conspiracy] that the indictment charges? (2) If not, is it sufficient to permit a jury, under a proper set of instructions, to convict the defendant of a related, similar conspiracy [to violate the same statute]? (3) If so, does the variance affect the defendant's substantial rights or does the difference between the charged conspiracy and the conspiracy proved amount to "harmless error?"
United States v. Glenn, 828 F.2d 855, 858 (1st Cir. 1987) (Breyer,
J.); see also United States v. Wihbey, 75 F.3d 761, 773 (1st Cir.
1996) ("[S]o long as the statutory violation remains the same, the
jury can convict even if the facts are somewhat different than
[those] charged -- so long as the difference does not cause unfair
prejudice." (quoting United States v. Twitty, 72 F.3d 228, 231
(1st Cir. 1995))).
- 76 - The answer to the second question is not in dispute: the
government contends -- and the defendants do not make any developed
argument to the contrary -- that the evidence was sufficient to
permit a jury to convict each defendant of conspiring with Singer,
his staff, and university insiders to secure his own child's or
children's admission. That leaves only the first and third
questions at issue.
We analyze first whether there was sufficient evidence
to convict the defendants of the broader charged conspiracy, and
second whether, if not, the resulting variance from the indictment
prejudiced the defendants. We conclude that the evidence was
insufficient to prove that these defendants agreed to join the
broader charged conspiracy and that the defendants were prejudiced
by the variance, and so we vacate the defendants' conspiracy
convictions.26 We also vacate Wilson's substantive § 666
convictions.
26 We have already vacated the defendants' mail and wire fraud conspiracy convictions in Section III. This variance analysis provides an alternative ground for that holding, in addition to providing the sole ground for vacating the convictions for conspiracy to commit federal programs bribery under § 666. Because we have already vacated the mail and wire fraud conspiracy convictions, we do not address Abdelaziz's argument that his conviction for conspiracy to commit mail and wire fraud must be vacated because of alleged error in the jury instructions' description of the scope of the charged conspiracy.
- 77 - A.
To assess whether the claimed variance occurred, we must
determine whether the evidence sufficed for a rational juror to
find beyond a reasonable doubt that the defendants agreed to join
the broader charged conspiracy. Glenn, 828 F.2d at 858. As with
all sufficiency challenges, our review is de novo, and we must
review the evidence in the light most favorable to the verdict.
United States v. Dellosantos, 649 F.3d 109, 115, 117 (1st Cir.
2011). The evidence cannot suffice to support the verdict through
the kind of inference-stacking that "would require impermissible
speculation on the jury's part." Glenn, 828 F.2d at 860. We begin
this inquiry by providing the relevant legal background, which
reveals the relevance to the inquiry of three specific factors.
We then turn to the record in this case regarding each of those
factors.
The three factors that we have found to be helpful in
guiding the inquiry into whether the evidence suffices to show
that a defendant agreed to join a conspiracy as broad as the one
charged rather than only a smaller, narrower one are "(1) the
existence of a common goal [among the alleged participants in the
charged conspiracy], (2) interdependence among [the alleged]
participants [in the charged conspiracy], and (3) overlap among
the [alleged] participants [in the charged conspiracy].'"
- 78 - Dellosantos, 649 F.3d at 117 (quoting United States v.
Mangual-Santiago, 562 F.3d 411, 421 (1st Cir. 2009)). The analysis
is "pragmatic," United States v. Fenton, 367 F.3d 14, 19 (1st Cir.
2004), and no single factor "is necessarily determinative," United
States v. Díaz-Arias, 717 F.3d 1, 21 (1st Cir. 2013); see, e.g.,
Dellosantos, 649 F.3d at 120-21 (considering factors
collectively).
It is particularly important in this inquiry to look not
only to how these three factors bear on individuals alleged to
have performed a similar role in the charged conspiracy to the
role allegedly played by the specific defendants before us in these
appeals, but also to whether these specific defendants agreed to
join that broader conspiracy rather than at most only a narrower
one. As then-Judge Breyer described:
[W]e recognize that conspiracy law, like most criminal law, focuses upon the activities of an individual defendant. It is therefore dangerous to think of a conspiracy as a kind of "club" that one joins or a "business" in which one works. Those metaphors falsely suggest that the "member" or "employee" automatically becomes legally responsible for the entire enterprise. Instead, "the gist of the [conspiracy] offense remains the agreement, and it is therefore essential to determine what kind of agreement or understanding existed as to each defendant."
Glenn, 828 F.2d at 857 (second alteration in original) (citation
omitted) (quoting United States v. Borelli, 336 F.2d 376, 384 (2d
Cir. 1964)). And while an agreement to conspire may be express or
- 79 - tacit and can be proven using direct or circumstantial evidence,
see id. at 857-58, "[the government] can prove only the agreement
or understanding that the evidence . . . implies beyond a
reasonable doubt," id. at 858.
In Glenn, the court held that the evidence did not
suffice to show that a defendant, Glenn, had joined the single
conspiracy charged by the government to import marijuana from
Thailand and hashish from Pakistan. See id. at 858-60. Instead,
the court held that the evidence sufficed to show only that Glenn
had joined a narrower conspiracy to import hashish, although that
conspiracy was with some of those alleged to be part of the broader
conspiracy described in the indictment. See id.
Glenn emphasized that the inquiry into whether a
defendant has agreed to join the conspiracy charged focuses on the
scope of the activity in which the defendant agreed to join. See
id. at 857. It explained that the record might have sufficed to
show that several other individuals in what it referred to as "the
core group" had conspired to import both marijuana and hashish.
Id. at 859. But Glenn further explained that while the evidence
showed that Glenn had dealings with that core group with respect
to the distribution of hashish and was aware that the core group
was involved in a broader conspiracy than one just to distribute
hashish, that did not mean that the evidence sufficed to show that
he had agreed to join that marijuana-hashish conspiracy. See id.
- 80 - The court explained that, while the evidence showed that Glenn was
aware of efforts to import marijuana by those in the core group,
there was no evidence that he understood himself to have a stake
in the success of those efforts or saw them as interdependent with
his efforts to import hashish. See id. As a result, the court
determined that the government had not proven Glenn's
participation in the broader multidrug conspiracy -- just his
participation in a narrower, hashish-only scheme. Id.
With this legal framework in mind, we begin by
considering what the evidence shows with respect to whether the
defendants shared a common goal with the other alleged participants
in the broader charged conspiracy. We do so because if the
evidence does show as much, then it would point in favor of finding
that the defendants had agreed to join in the charged conspiracy.
We acknowledge that, as the government emphasizes, the
common goal factor "is given wide breadth." Dellosantos, 649 F.3d
at 117 (internal quotation marks omitted) (quoting
Mangual-Santiago, 562 F.3d at 421). In the context of drug
distribution rings, this court has repeatedly recognized that
"selling cocaine for profit" can qualify as a common goal.
Mangual-Santiago, 562 F.3d at 422; accord, e.g., United States v.
Portela, 167 F.3d 687, 695 (1st Cir. 1999).
- 81 - But this is not a drug distribution case, and the Supreme
Court has distinguished between fact patterns in which members of
a broader conspiracy seek to "achiev[e] a single unlawful end" and
those in which the alleged coconspirators each pursue "an end in
itself, separate from all others, although all [a]re alike in
having similar illegal objects." Blumenthal v. United States, 332
U.S. 539, 558 (1947). In the latter class of cases, there is no
common goal shared by the alleged participants in the single
broader charged conspiracy, even though each alleged participant
may have a "similar illegal object[]" as the other participants.
Id.
Several decisions from this circuit have also found that
alleged coconspirators lacked a common goal where they pursued
similar but distinct ends or acted based on different motives from
those common to the charged conspiracy. See United States v.
Monserrate-Valentín, 729 F.3d 31, 44 (1st Cir. 2013) (finding no
common goal between alleged coconspirators who aimed to commit one
robbery and others who sought to commit a series of robberies, and
noting that the former group was motivated by a desire to seek
revenge against the victim while the latter's objective was "purely
pecuniary"); United States v. Franco-Santiago, 681 F.3d 1, 9-10
(1st Cir. 2012) (contrasting goal of committing one robbery with
goal of committing a series of robberies), abrogated on other
grounds by Musacchio v. United States, 577 U.S. 237 (2016); cf.
- 82 - Glenn, 828 F.2d at 859-60 (distinguishing between agreement to
import marijuana, agreement to import hashish, and agreement to
import both). Other circuits have held the same. See, e.g.,
United States v. Swafford, 512 F.3d 833, 842 (6th Cir. 2008)
(finding no "common goal" where alleged coconspirators engaged in
similar conduct but were unaware of and indifferent to one
another's activities); United States v. Rosnow, 977 F.2d 399, 406
(8th Cir. 1992) (finding no common purpose where defendants
"engaged in similar acts for similar reasons . . . in order to
benefit themselves individually[ or] to gain revenge on their
individual perceived enemies, and not to benefit the group as a
whole"); United States v. Harrison, 942 F.2d 751, 757 (10th Cir.
1991) (distinguishing between an overarching conspiracy with a
"common" goal and multiple conspiracies with "identical" -- but
not common -- goals).
We ask then whether the government's evidence as to each
defendant was sufficient to show that that defendant falls into
the former class of cases. The government offers two kinds of
arguments to show that the cases at hand fall into the former
class -- the first of which concerns what the evidence shows about
the nature of the alleged scheme and the second of which concerns
what the evidence shows as to more specific conduct by each
defendant.
- 83 - a.
The government's contention that the nature of the
alleged scheme here itself provides a basis for concluding that
these defendants shared a goal in common with the other alleged
participants faces an immediate difficulty: the alleged scheme has
the hallmarks of a hub-and-spoke conspiracy. On the government's
own account, the evidence shows that a hub figure or figures
(Singer and others working directly with him to assist parents in
gaining admission for their children) had dealings with many
separate spokes (the individual parents who obtained services from
Singer and his group). We consider whether the hub-and-spoke
nature of the scheme charged would, in and of itself, support a
reasonable inference that any "spoke" shared a common goal with
the other "spokes," and reject the government's argument.
Blumenthal is a case of a hub-and-spoke conspiracy in
which the evidence was deemed sufficient to show that the spokes
shared a common goal due to the nature of the scheme. There,
several individuals were charged with conspiring to sell whiskey
at rates above a government price ceiling. See 332 U.S. at 541.
The Court held that the evidence was sufficient to show that the
defendants, each of whom was charged with purchasing whiskey from
a single supplier to distribute and then selling it to others, had
a common goal -- "to sell . . . whiskey unlawfully [at an above-
market rate]" -- with the other defendants, which included not
- 84 - only the supplier but other distributors. Id. at 559. That was
so because the other potential explanations for those defendants'
conduct in purchasing the whiskey at an above-market price from
the conspiracy's hub were so economically irrational as to be
"scarcely conceivable." Id. at 550. And the Court concluded that
the fact that they shared that goal with the other alleged
conspirators supported a finding that they had tacitly agreed to
join the single, charged conspiracy. See id. at 550, 559.
Blumenthal explicitly contrasted the scenario involved
in that case with the contrary outcome in the scenario at issue in
Kotteakos, where a hub figure had helped otherwise unconnected
clients or groups of clients fraudulently obtain loans. See id.
at 558; Kotteakos, 328 U.S. at 753-55. The Court explained that
although each client (or group of clients) in Kotteakos pursued a
"similar illegal object[]," none "was interested in whether any
loan except his own went through," and that this lack of common
purpose cut against treating the clients as participants in a
single overarching conspiracy. Blumenthal, 332 U.S. at 558.
Rather, the evidence "made out a case, not of a single conspiracy,
but of several." Kotteakos, 328 U.S. at 755; see id. at 754-55.
The defendants here do not dispute that the evidence
suffices to show that all parents alleged to have conspired with
Singer and his core group had similar unlawful goals in one sense:
getting their own children into particular universities through
- 85 - illicit means. And the evidence does suffice to show that Singer
and others in his core group shared a goal of facilitating
admissions into universities for the children of parents who sought
the group's services, as the business model of the alleged scheme
depended on their ability to secure those side doors.
The relevant question, though, is whether the nature of
the alleged scheme is such that it would be reasonable to infer
that any parents who sought the assistance of the core group shared
a goal of getting children other than their own into any university
just because they sought such assistance for their own children.
We do not see how the nature of the alleged scheme would support
such an inference.
The defendants were purchasing a service from the core
group in the way that any consumer of a service would purchase it
from a service provider. We do not commonly infer, however, that
a buyer shares a common goal with a seller just because the two
transact with one another. See United States v. Bedini, 861 F.3d
10, 15 (1st Cir. 2017) (looking for "more than a mere buyer-seller
relationship" (quoting United States v. Ortiz-Islas, 829 F.3d 19,
25 (1st Cir. 2016) (Souter, J.))); Ortiz-Islas, 829 F.3d at 25
(finding "more than a mere buyer-seller relationship" due to
evidence that "seller" fronted wholesale quantities of cocaine to
"buyer," showing "act of trust that assumed an ongoing enterprise
with a standing objective"); cf. Kotteakos, 328 U.S. at 753
- 86 - (explaining that hub figure's relationship to each alleged
coconspirator was that of a "broker . . . charging a five per cent
commission for his services").
Moreover, this is not a case like Blumenthal, in which
there is some straightforward reason to draw an inference that the
defendants had a goal beyond benefiting themselves. Here, unlike
in Blumenthal, the two defendants had a clear self-interest in
dealing with the hub figures: obtaining their own children's
admission in a discrete buyer-seller transaction. Thus, there is
a quite "conceivable" explanation for their willingness to seek
Singer's assistance that by no means entails their having a broader
goal of ensuring that other parents could obtain similar assistance
from Singer for their children and thus a common goal with other
spokes. Cf. Blumenthal, 332 U.S. at 550 (describing alternative
explanation for defendants' conduct other than participation in a
broader conspiracy as "scarcely conceivable").
Indeed, the nature of the defendants' status as buyers
in this scheme much more easily leads to the opposite inference:
that the defendants were indifferent or even adverse to whether
other parents' children were admitted to the schools to which they
sought admission, and had no interest in what happened to parents
seeking admission at other universities. It is commonplace that
universities' admissions processes are competitive and often
highly competitive. The defendants argue that, far from proving
- 87 - pursuit of a common goal, the evidence showed that "Singer's
clients were at times led to believe they were competitors." They
cite as an example an email exchange involving Singer, Wilson, and
Wilson's wife in which Singer stated that USC's water polo coach
was "giving [him] 1 boys [sic] slot" and that he had "5 + wanting
in that are boys [--] 2 polo[,] 3 others."
Of course, as the government points out, this court and
others have explained that competition among alleged
coconspirators does not itself preclude a finding of an overarching
conspiracy where there is other evidence supporting a finding of
an overarching conspiracy notwithstanding that competition. See,
e.g., United States v. Rivera Calderón, 578 F.3d 78, 92 & n.2 (1st
Cir. 2009) (concluding that "even if there was some competition
[among coconspirators in a drug ring], that alone d[id] not detract
from the various ways the appellants conspired together,"
particularly because the evidence did not show "serious
competition," such as undercutting one another's sales). However,
that does not make competition irrelevant; indeed, competition
cuts against the reasonableness of inferring that the defendants
shared a common goal with all the alleged coconspirators here.
See United States v. Townsend, 924 F.2d 1385, 1397 (7th Cir. 1991)
("The evidence does not suggest that [a defendant conspired with
other individuals]; rather, it shows that he was competing with
them.").
- 88 - We do not say that, on different evidence, it would be
impossible for any parent who sought out services from Singer and
the core group to have adopted the common goal of advancing the
success of children seeking admission though side doors. Some
parents may have had an interest in the broader success of the
venture. Here, the government cites to testimony from Bruce
Isackson, an alleged unindicted coconspirator parent who pleaded
guilty and cooperated with the government as its lead evidence,27
that he thought it was "good" that lots of parents worked with
Singer because "[m]ost of these people have very complicated [tax]
returns," which "would [make it] pretty hard [for the IRS] to
figure things out."
As Glenn instructs, however, we must keep our attention
focused on whether each individual defendant agreed to join the
broader conspiracy that was charged. There is no evidence that
either defendant before us on appeal ever spoke with or even was
aware of Isackson's dealing with the core group, let alone that
they shared his view that the participation of other parents was
"good" for the success of the core group's venture.28 Isackson's
27 Isackson was named alongside Abdelaziz and Wilson in the government's original criminal complaint. He entered a plea agreement with the government pursuant to a criminal information, waiving the right to indictment, and so was not indicted with the defendants. 28 Isackson testified that he had never met or spoken with Abdelaziz and that he had met Wilson at school or charitable events
- 89 - testimony about his own understanding of how the breadth of
participation by other parents mattered does not support a
reasonable inference that any parent who worked with Singer was
similarly interested in ensuring that other parents were
participating, too.
The government also points to evidence that "a stock
part of Singer's pitch" included describing the benefits of broad
participation, and urges us to conclude that it would be reasonable
to infer that each defendant heard that pitch. While the pitch
may help clarify the nature of the scheme, the evidence that the
government cites at most shows that Singer told at least some
parents, including Wilson, that his operation worked with a large
number of parents and schools. That is the usual assertion of any
successful venture. The idea that a larger venture is more likely
to succeed than a smaller one is not necessarily true.
Moreover, while the evidence suffices to show that
Singer and his core group had a financial interest in whether
children of parents other than the defendants obtained admission,
no parent had any similar financial stake in how successful other
children were in getting admitted through the services of the core
group. Glenn and Kotteakos do not permit us to conclude that the
defendants' mere awareness that Singer and the core group had other
but had never had any "substantive conversation[s]" with him.
- 90 - parents enrolled suffices to permit a rational juror to infer that
the defendants shared the goal of advancing the success of that
broader conspiracy. Glenn, 828 F.2d at 859; Kotteakos, 328 U.S.
at 755.
The government also points to evidence that is more
defendant specific to show that the common goal factor favors its
position. For example, the government points to evidence that the
Wilson family referred other parents to Singer, and that Abdelaziz
responded "I love it" when told that Singer would be using his
daughter's profile as a model when creating profiles for children
of other parents seeking admission to USC. The government thus
contends that even if the nature of the scheme -- even as fleshed
out through the Isackson testimony and the evidence of Singer's
pitch -- does not in and of itself suffice to support the
reasonable inference that the defendants had the common goal of
advancing the success of the broader venture, this defendant-
specific evidence does when considered in the context of the
evidence as a whole.
In pressing this point, the government asks us to accept
that the common goal of the charged conspiracy was merely to
advance the conspiracy's success. By defining a common goal at
that high level of generality, the government's argument threatens
to drain the common goal factor of any independent significance in
- 91 - the inquiry into whether the evidence suffices to show that the
scope of the conspiracy that the defendants joined is the same as
the one charged. Nor does the government identify any prior
precedent of ours that treats as the common goal of the conspiracy
charged merely advancing the conspiracy's success. Even in
Blumenthal, the "common end" was described not merely as ensuring
the conspiracy's success, but more specifically as "to sell the
whiskey unlawfully" and "to aid in disposing of the whiskey." 332
U.S. at 559.
The defendant-specific evidence that the government puts
forward to show that these defendants shared a common goal is more
relevant to the factor that we discuss in the next section --
interdependence. Interdependence, after all, "concerns whether
'the activities of one aspect of the scheme are necessary or
advantageous to the success of another aspect of the scheme.'"
Dellosantos, 649 F.3d at 117 (quoting Mangual-Santiago, 562 F.3d
at 422).
Indeed, in connection with the interdependence factor,
the government does point to the same evidence about the specific
conduct of the defendants in allegedly aiding other parents in
obtaining admission for their children through Singer's venture.
We discuss this body of evidence -- and the weakness of it -- in
the next section. The same weaknesses which lead us to conclude,
as we next explain, that this evidence does not supportably show
- 92 - based on the interdependence factor that the defendants tacitly
agreed to join the broader charged conspiracy also leads us to
conclude that it fails to do so based on the common goal factor.
We turn to the other factor in dispute: interdependence.
Glenn is instructive once again. As then-Judge Breyer explained
in the context of an alleged drug-distribution conspiracy:
[K]nown interdependence . . . makes it reasonable to speak of a tacit understanding between the distributor and others upon whose unlawful acts the distributor knows his own success likely depends. When such interdependence is missing, when the distributor is indifferent to the purposes of others in the enterprise -- say, other distributors -- the tacit understanding does not exist.
Glenn, 828 F.2d at 857-58 (citation omitted). Thus, as we have
explained, "[e]ach individual must think the aspects of the venture
interdependent, and each defendant's state of mind, and not his
mere participation in some branch of the venture, is key."
Dellosantos, 649 F.3d at 117 (quoting Mangual-Santiago, 562 F.3d
The indictment here alleged that the defendants agreed
to conspire not only with Singer and the core group but also with
the purported coconspirator parents. See Glenn, 828 F.2d at 857
(observing that conspiracy requires agreement among
coconspirators). It is therefore insufficient for the government
- 93 - to show only that each of the defendants conspired individually
with Singer and the core group to secure admission for their own
children to prove the broad overarching conspiracy charged. The
government must show that each of these two defendants agreed to
conspire with the other parents charged as coconspirators in the
larger conspiracy. See Kotteakos, 328 U.S. at 755 (recognizing
that no single conspiracy existed where the evidence showed only
"separate spokes meeting at a common center . . . without the rim
of the wheel to enclose the[m]"). For, as other circuits have
explained, where the government has charged a hub-and-spoke
conspiracy like that alleged here, interdependence must exist
between the spokes, and not simply between the hub and each spoke,
for the interdependence factor to support a finding of a single
conspiracy. See, e.g., United States v. Chandler, 388 F.3d 796,
811 (11th Cir. 2004) (evaluating whether there was
"interdependence of the spokes"); United States v. Mathis, 216
F.3d 18, 24 (D.C. Cir. 2000) (rejecting an argument that the
government must "show interdependence only among the hub . . . ,
not among the spoke[s]" because the "spoke[s] . . . in a hub
conspiracy must not only have a connection to the hub . . . but
must also have interdependence among each other in order to form
a rim and constitute a single conspiracy"). Without
interdependence between the defendants and other parents, the
"tacit understanding" necessary for these defendants to have
- 94 - agreed to conspire with the other parents does not exist. Glenn,
828 F.2d at 858; see id. at 857-58.
We look at whether the evidence of the conduct of each
of these two defendants shows interdependence with the other
parents in the broader charged conspiracy. See, e.g., Dellosantos,
649 F.3d at 119-20 (assessing interdependence of two branches of
alleged drug conspiracy, one of which distributed cocaine and one
of which distributed both cocaine and marijuana).
Here, too, the government argues, relying on drug
distribution cases, that the jury could infer from "the nature of
the scheme" that the defendants must have understood themselves to
be interdependent with other parents. We cannot agree.
This court has found that form of inference appropriate
in the context of defendants selling "wholesale quantit[ies]" of
drugs to drug distribution rings for resale to individual
buyers/users, e.g., Portela, 167 F.3d at 697; see id. at 697-98,
but that fact pattern is not at all analogous to this case. It is
clearly reasonable to infer that a drug supplier must understand
that "[t]he success of [his] transaction [i]s dependent on [the
existence of] a conspiratorial network capable of disposing
profitably of the [drugs], and the very existence of such a network
[i]s necessarily dependent on the existence of other wholesale
suppliers." Id. at 697. The wholesale supplier knows there must
- 95 - be a further distribution chain for the distribution of his
wholesale quantities of drugs. See id.
Singer, though, is not a wholesaler of any good, and
neither defendant is a distributor. The evidence here is that
Singer brokered such arrangements as he made for the admission of
these two defendants' children on an individual basis, with each
"an end in itself" rather than an integrated part of a larger
conspiracy. Blumenthal, 332 U.S. at 558. Indeed, as with "common
goal," the competitive nature of college admissions would, if
anything, cut against a finding of interdependence. See United
States v. Carnagie, 533 F.3d 1231, 1240 (10th Cir. 2008) (noting
that "direct competition" between alleged coconspirators cut
against finding interdependence). Nor is there any evidence here
of anything akin to coconspirators' "fronting" each other money or
drugs, which we have looked to even in drug conspiracy cases to
substantiate the notion that coconspirators were interdependent.
See, e.g., Bedini, 861 F.3d at 16.
The government also argues that a rational jury could
infer interdependence between the defendants and other parents
from just the nature of the scheme because "[b]road participation
allowed . . . parents to rely on . . . the scheme's success," as
"Singer [could] recruit more coaches and . . . offer parents . . .
more options at more schools." To support this "nature of the
scheme"-based method of proving interdependence, the government
- 96 - cites a phone call between Singer and parent Agustin Huneeus, an
alleged unindicted coconspirator.29 In that call, according to the
government, Huneeus "motivat[ed] himself to participate in the
scheme based on the experience of" another parent who worked with
Singer and "the scheme's track record."
Even if a parent chose to work with Singer based on his
past success with other parents, the government must prove as to
interdependence that "the activities of one aspect of the scheme
are necessary or advantageous to the success of another aspect of
the scheme." Dellosantos, 649 F.3d at 117 (quoting
Mangual-Santiago, 562 F.3d at 422). A track record of success may
have made parents more confident that Singer could help their
children, but it does not mean that those parents necessarily
viewed their children's admission as in some way dependent on
Singer's work with other parents. Thus, even accepting the
government's interpretation of the inferences to be drawn from the
call about Huneeus's understanding of the scheme, they do not
supportably show that Abdelaziz and Wilson had the same view. See
id. (noting focus on each defendant's own state of mind). To draw
such a conclusion would require stacking inference upon inference
29 Like Isackson, Huneeus was named in the government's original criminal complaint alongside Abdelaziz and Wilson, but pleaded guilty pursuant to a criminal information before Abdelaziz and Wilson were indicted.
- 97 - through "impermissible speculation on the jury's part." Glenn,
828 F.2d at 860.
The government separately argues that a rational jury
could find the required interdependence from the nature of the
scheme because the inclusion of additional parents in the scheme
benefited the defendants by making "the interconnected web of
relationships and finances . . . more difficult to unravel." In
support of this "nature of the scheme"-based theory for finding
that the interdependence factor points in favor of the convictions,
the government again cites Isackson's testimony that he thought it
was "good" that lots of parents worked with Singer because "[m]ost
of these people have very complicated [tax] returns," which "would
[make it] pretty hard [for the IRS] to figure things out." The
government also asserts that "Wilson and Abdelaziz . . . join[ed]
the other parents in channeling millions of dollars through
[Singer's operation]," that they discussed "the mechanics of money
flow" with Singer, and that "both were sophisticated and successful
businessmen" who would understand "the advantages of this feature
of the scheme."
We disagree with the government: this evidence does not
support a finding of interdependence. Isackson's testimony
reflected his own personal view that it was "good" that other
parents of means had also engaged Singer because in his view that
made a coverup easier. Neither Abdelaziz nor Wilson discussed
- 98 - Singer's services with Isackson, and there was no evidence they
shared his views or even would have thought those views plausible.
See Portela, 167 F.3d at 695 (emphasizing that interdependence
depends on defendant's own state of mind); Glenn, 828 F.2d at 859
(evaluating evidence of defendant's state of mind). While
sometimes a defendant's efforts to cover up a conspiracy may be
probative of his agreement to join the conspiracy, in which case
a cover-up effort interdependent with other coconspirators might
suffice to show interdependence, the proof the government offered
here was of a different actor's guilt.
Further, the discussions about "the mechanics of money
flow" that the government cites involved basic logistical
questions about payment due dates and wiring instructions; at no
point during those exchanges did the defendants allude to any
perceived benefit from intermingling their payments with other
parents'. That parents made their payments to the universities
through Singer is naturally explained by Singer's role in
coordinating the transactions. The government stretches too far
in arguing that the payments through Singer necessarily show that
any parent who hired Singer intended to allow Singer to commingle
funds for the purpose of making it more difficult for prosecutors
to show Singer was engaged in a criminal conspiracy with other
parents by means of transmission of funds to the universities.
- 99 - We conclude that the nature of the alleged scheme is not
such that, because the evidence suffices to show that the
defendants sought Singer's services in connection with their own
children, the evidence also suffices to show that the defendants
were interdependent with other parents for whom Singer coordinated
side-door deals.
As with the "common goal" factor, the government also
contends that there is more defendant-specific evidence that
suffices to show that the interdependence factor supports the
conclusion that each of the defendants before us agreed to join
the broader charged conspiracy, even if the evidence of the
scheme's nature in and of itself does not. We conclude, however,
that this evidence, when considered in the context of the record
as a whole, does not so suffice without the sort of inference-
stacking that "would require impermissible speculation on the
jury's part." Glenn, 828 F.2d at 860.
The parties do not dispute that both Abdelaziz and Wilson
were at least aware that Singer conducted side doors for other
parents.30 However, as the defendants point out, mere awareness
30 Abdelaziz argues that he "did not know that the 'side door' was broader than USC," but the government presented evidence that "a stock part of Singer's pitch" was the "wide[] variety of school options" that he was able to offer parents, which could allow a jury to conclude that Abdelaziz learned the same from Singer.
- 100 - of a common figure's involvement in similar dealings with similarly
situated people is far from enough to show interdependence.
Indeed, in Glenn we concluded that even though Glenn had "attended
one meeting where the core conspirators discussed the smuggling of
both marijuana and hashish," this showed "at most that Glenn knew
about the marijuana venture," not "that [he] thought [it]
interdependent" with the hashish venture in which he was involved.
Id. at 859.
As evidence that Abdelaziz thought his work with Singer
interdependent with other parents', the government relies on a
phone call between Abdelaziz and Singer in October 2018 -- after
Abdelaziz's daughter had been admitted to and enrolled at USC.
During the call, which Singer initiated at the government's request
after agreeing to cooperate with investigators, Singer told
Abdelaziz that a USC athletics administrator had "loved" the
basketball profile they had used to facilitate his daughter's
admission and wanted Singer to use it for other applicants who
"[are]n't . . . real basketball player[s]" in the future.
Abdelaziz responded: "I love it."
That response by a father about his daughter, ambiguous
as it is, does not bear the weight the government posits. Further,
Abdelaziz's daughter had already been admitted to USC well before
Singer made that call. It is not an admission by Abdelaziz that
he joined an interdependent conspiracy with other parents in
- 101 - advancement of his own interests. Construing this conversation as
evidence that Abdelaziz considered himself interdependent with
other parents would again require impermissible inference-stacking
on the jury's part.
As evidence of interdependence related to Wilson, the
government relies on evidence that Wilson as well as other parents
"referred and recruited other parents." And the government adds
that Wilson had a motive to make such referrals because he had
other teenage children for whom he might seek Singer's services in
the future, and thus he was likely to be a repeat player.
The government points to four such referrals in its
brief, only one of which involved Wilson as the speaker: First, a
2013 email from Wilson's wife to Singer asking about the
possibility of two of Wilson's son's friends' taking part in a
"UCLA workshop/internship" and "college counseling" run by
Singer.31 Second, a 2017 email, also from Wilson's wife, to Marci
Palatella -- a codefendant in this case, including in both
conspiracy counts -- which states: "I had a few thoughts about
[Singer] & USC -- easier to talk on the phone." The third is not
from Wilson or his wife, but from Palatella -- a 2018 phone call
31 One of the friends was later admitted to USC with Singer's assistance; his family made a $100,000 contribution for "USC baseball" through Singer's foundation. The friend's parents do not appear to have been charged in this case, and the government's brief does not describe them as codefendants.
- 102 - between Palatella and Singer in which Palatella mentioned telling
a neighbor about Singer's services and assured Singer that she
"d[id]n't say much to anybody unless [she] th[ought] they'd be a
good candidate" and that she would "hand [him] the right people."
And fourth, a 2018 text exchange and phone call between Singer and
Wilson in which Wilson stated that he had a "good -- very
wealthy -- friend [with] a daughter applying to Brown." Wilson
described the friend as "willin[g] to pay a million, 2 million" to
secure his daughter's admission, and said he would "connect" Singer
and the friend by email.32
Because Wilson's own "state of mind . . . is key" to the
interdependence inquiry, the actions of his alleged coconspirators
are of limited relevance. Dellosantos, 649 F.3d at 117; see, e.g.,
Glenn, 828 F.2d at 859 (distinguishing between views of defendant
and alleged coconspirators). Further, the referral by Wilson
involving Brown University does not fall squarely within the
conspiracy alleged by the indictment, which did not include Brown
among the set of universities allegedly targeted by the parents.
Regardless, this one referral involving Wilson does not
support an inference that Wilson viewed his activities as
interdependent with Singer's work with other clients. Wilson's
(or another parent's) referring a friend to Singer does not
32 Wilson's friend was not indicted in the operative indictment for his interactions with Singer.
- 103 - necessarily provide an "indication that [Wilson] thought that [his
work with Singer to obtain admission for his own children] was
'necessary or advantageous to the success'" of Singer's work with
other parents, or vice versa. Monserrate-Valentín, 729 F.3d at 44
(quoting Dellosantos, 649 F.3d at 117).
A jury could plainly infer that Wilson wanted Singer to
work with the friend and that he hoped that that work would be
successful. But to conclude based on this evidence that Wilson
thought that Singer's work with other parents would be beneficial
to his own success, even if he was likely to be a repeat player,
would again require stacking inference upon inference.33 For, as
the defendants point out, Kotteakos itself contained evidence that
both the defendant and other alleged coconspirators, many of whom
were repeat players, had referred others to the "hub" figure, but
held that such evidence did not suffice to show that either the
defendant or the other alleged coconspirators who made referrals
had thereby joined with the "hub" figure in an overarching
conspiracy. See 328 U.S. at 754 ("Kotteakos . . . sent Brown [(the
hub figure)] applications on behalf of other persons.").
33 At oral argument, the government contended that the record shows more than "bare referrals" and that parents effectively vetted potential new participants in the scheme to ensure they would benefit Singer's network. The only evidence to this effect is Palatella's statement to Singer, not made by Wilson or even his wife.
- 104 - We conclude that there was insufficient evidence from
which a rational jury could find interdependence with respect to
these two defendants. This factor, too, points against the
conclusion that the defendants agreed to join the broader
conspiracy that was charged rather than merely the narrower ones
to ensure admission for their own children.
4.
The defendants do not contest that the final factor,
overlap among the participants, is satisfied by Singer's and his
associates' interactions with the parents. See Dellosantos, 649
F.3d at 118. Rather, they assert, and we agree, that the "evidence
of overlap . . . was insufficient to outweigh the lack of
interdependence" and common goal. Id. at 120.
In an abundance of caution before we turn to the issue
of prejudice, we discuss the totality of the evidence. See United
States v. Canty, 37 F.4th 775, 796 (1st Cir. 2022) (considering
totality of circumstances in addition to common goal,
interdependence, and overlap). The government does not cite any
additional considerations beyond the three factors discussed
above; the defendants offer one.
As the defendants point out, the dissimilarity in the
conduct of the parents alleged to have conspired with Singer
undercuts the reasonableness of finding a single conspiracy. See
Franco-Santiago, 681 F.3d at 10. Franco-Santiago held that the
- 105 - evidence was insufficient to show that a defendant who had
conspired to commit one robbery had agreed to join a broader
conspiracy to commit a series of robberies in part because "the
robbery in which [the defendant] did participate [was] notably
different from the other robberies encompassed by the . . .
overarching conspiracy." Id.; see id. at 11-12. In particular,
the robbery in which the defendant had participated "was one of
cash from a person, whereas the other four robberies were all
robberies of places of business." Id. at 10. In this case, the
evidence showed significant differences between the conduct of the
defendants and that of their alleged coconspirators. The
government introduced evidence that other parents who purportedly
participated in the alleged overarching conspiracy knowingly made
payments to university insiders' personal accounts and paid to
alter standardized test scores or have third parties take online
classes for their children. The evidence does not show, and the
government does not argue, that Abdelaziz or Wilson engaged in
those practices.
Evaluating the record as a whole, we conclude that there
was insufficient evidence from which a rational jury could find
beyond a reasonable doubt that the defendants joined the broader
conspiracy charged in the indictment.
- 106 - B.
Our conclusion that the proof varied from the indictment
does not, on its own, "upset [the defendants'] conviction[s]."
Glenn, 828 F.2d at 858. After all, "[a]s long as administrative
convenience leads the government to prosecute many, or all, members
of a large criminal enterprise at a single trial, variances between
the scope of the conspiracy charged and that proved may, at least
as to some defendants, be fairly common," id., and "a defendant
'can hardly . . . complain when the government's proof at trial
establishes a scheme similar to but somewhat narrower in breadth
and malignity than that charged in the indictment,'"
Monserrate-Valentín, 729 F.3d at 49 (internal quotation marks
omitted) (quoting United States v. Mubayyid, 658 F.3d 35, 48-49
(1st Cir. 2011)).
To succeed on appeal, then, the defendants must also
show that the variance "prejudiced [them -- that] it 'affect[ed]
[their] substantial rights.'" Glenn, 828 F.2d at 858 (second
alteration in original) (internal quotation marks omitted)
(quoting Berger v. United States, 295 U.S. 78, 82 (1935)); accord,
e.g., Dellosantos, 649 F.3d at 124. This circuit has "recognized
at least three" possible forms of prejudice in this context,
Dellosantos, 649 F.3d at 124:
First, a defendant may receive inadequate notice of the charge against him and thus be taken by surprise at trial. Second, a
- 107 - defendant may be twice subject to prosecution for the same offense. Third, a defendant may be prejudiced by "evidentiary spillover": the "transference of guilt" to a defendant involved in one conspiracy from evidence incriminating defendants in another conspiracy in which the particular defendant was not involved.
Id. at 125 (quoting Wihbey, 75 F.3d at 774 (citations omitted)).
Abdelaziz and Wilson focus exclusively on the third form
of prejudice -- evidentiary spillover. They argue that because
the government charged, but failed to prove, an overarching
conspiracy, it "was able to admit mountains of inflammatory
evidence about markedly different conduct by other parents,"
including evidence that other parents were aware that their
payments would go to university officials personally, that other
parents paid to alter standardized test answers and scores, and
that other parents paid Singer's staff to take courses for their
children. This evidence involved parental knowledge and conduct
markedly different in kind from Abdelaziz's and Wilson's alleged
activities and focused on parents with whom the defendants did not
interact. Meanwhile, the government chose not to put Singer on
the stand, where he would have been subject to cross-examination,
despite the facts that Singer was the person with whom these two
defendants did interact and that he had cooperated with the
prosecution. The defendants argue that all of this "created an
- 108 - impermissibly high risk that the jury . . . could not fairly
evaluate [the defendants'] own knowledge or intent."
In response, the government emphasizes that "[t]o
prevail on a claim of prejudicial spillover, a defendant must prove
prejudice so pervasive that a miscarriage of justice looms."
Wihbey, 75 F.3d at 776 (internal quotation marks omitted) (quoting
United States v. Levy-Cordero, 67 F.3d 1002, 1008 (1st Cir. 1995)).
The government contends that the defendants cannot meet that
standard because, it asserts, (1) some evidence related to the
other parents may have been admissible even to prove the narrower
conspiracies involving the defendants, (2) the government
compartmentalized its presentation of the evidence in a way that
would prevent evidentiary spillover, (3) the trial court issued
appropriate limiting instructions to the jury, and (4) the proof
of the defendants' participation in those narrower conspiracies
was overwhelming.
The record does not support the government's assertions.
Rather, applying de novo review, Dellosantos, 649 F.3d at 124, we
agree with the defendants: "The dangers for transference of guilt
[in this case were] . . . so great that no one really can say
prejudice to substantial right has not taken place," Kotteakos,
328 U.S. at 774.
- 109 - 1.
The government does not dispute that to convict
Abdelaziz and Wilson of conspiring to violate either § 666 or the
mail and wire fraud statutes, it had to show that the defendants
possessed the requisite mental state to commit the underlying
offense. Violation of § 666 requires acting "corruptly . . . with
intent to influence or reward an agent of an organization." 18
U.S.C. § 666(a)(2). Violation of the mail and wire fraud statutes
requires acting "with the specific intent to defraud." United
States v. Martínez, 994 F.3d 1, 7 (1st Cir. 2021) (quoting United
States v. Woodward, 149 F.3d 46, 54 (1st Cir. 1998)). Both
conspiracy convictions thus required the government to prove that
Abdelaziz and Wilson acted with some culpable state of mind. And
at trial both defendants argued that they lacked this mental state
and had instead acted in good faith, believing Singer's side door
to be a path to admission of which the universities at least
tacitly approved.
Notably, the government at trial acknowledged that
Singer provided some "totally legitimate" services, including
"assistance with college applications," and did not contend that,
even when he was committing fraud with some parents, he was
committing fraud with all parents who engaged him. Indeed, the
evidence at trial showed that Abdelaziz paid Singer for work with
his two older children in 2012 and 2013 -- years before Abdelaziz
- 110 - allegedly began conspiring with Singer to facilitate his youngest
daughter's admission, sometime in 2017. The government has not
argued or cited any evidence that those earlier transactions were
in any way improper.
Given this context, "there was a pervasive risk" that
"the jury might have unfairly transferred to [Abdelaziz and Wilson]
the guilt relating to" other parents who worked with Singer.
Dellosantos, 649 F.3d at 125. Based on the overarching conspiracy
charge, the government introduced powerful evidence of culpable
intent on the part of other parents that presented a pervasive
risk of prejudicing the jury's assessment of each defendant's own
intent.
For example, in contrast with the government's
acknowledgment that Singer told Abdelaziz and Wilson that their
payments would go to the universities, the government's first
witness, Isackson, testified that he "knew a good portion of [the
money he paid Singer] was going into [Singer's] pockets and [to]
the people who helped him." He further described his concerns
about shielding the transactions from IRS scrutiny, again evincing
a consciousness of guilt. In addition, a government auditor
testified about payments from other parents through Singer to the
personal accounts of university insiders at Georgetown, Yale, and
UCLA, while a USC soccer coach testified to accepting bribes from
Singer for facilitating the admission of other parents' children.
- 111 - Further, through recordings of calls between Singer and
other parents, as well as the testimony of Isackson and a Singer
associate, the government introduced evidence of other parents'
paying Singer to facilitate clearly fraudulent conduct that was
both plainly wrongful and dissimilar in kind from Abdelaziz's and
Wilson's actions. Isackson testified that he "paid to have one of
[his] daughter's test scores altered." In a recorded call, parent
Gordon Caplan, an alleged unindicted coconspirator,34 discussed
with Singer a scheme to have his daughter fake a learning
disability in order to secure extra time on a standardized test
and to bribe a proctor to correct her answers. A Singer employee
testified to having taken online courses with the parents'
knowledge for the children of Singer clients other than Abdelaziz
and Wilson. The government thus "subjected the [d]efendants to
voluminous testimony relating to unconnected crimes in which they
took no part." Id.
The government, citing case law holding that the risk of
"prejudice [is] minimized [where] . . . transactions not directly
involving [a defendant are] of the same character as the ones that
did involve him," United States v. Levine, 569 F.2d 1175, 1177
(1st Cir. 1978), argues that at least some other parents engaged
34 Like Huneeus and Isackson, Caplan was named in the government's original criminal complaint alongside Abdelaziz and Wilson, but pleaded guilty pursuant to a criminal information before Abdelaziz and Wilson were indicted.
- 112 - in the same kind of conduct as Abdelaziz and Wilson by "pay[ing]
Singer to present [their] child[ren] as . . . Division I athletic
recruit[s] based on falsified credentials."
The defendants dispute the degree to which they were
aware of any falsified credentials. But, even accepting that some
other parents' conduct was similar in some respects to the
defendants', much of the evidence introduced by means of charging
the broader conspiracy nonetheless involved forms of conduct that
were different in kind from Abdelaziz's and Wilson's. Cf.
Dellosantos, 649 F.3d at 125 (noting risk of evidentiary spillover
where government, based on overarching conspiracy charge,
presented evidence of marijuana transactions against defendants
who had participated only in cocaine distribution). All this other
evidence threatened to influence the jury on the core issue of the
defendants' state of mind.
Our precedent in Martínez supports our conclusion.
There, a defendant and former public official, López, was charged
with and convicted of receiving bribes from a codefendant,
Hernández, in violation of § 666 and the mail and wire fraud
statutes, and argued that her being tried jointly with Hernández
created an unacceptable risk of evidentiary spillover. See 994
F.3d at 4-5, 11. López's "primary defense . . . was that she
merely accepted gifts from [Hernández] without any sort of quid
pro quo." Id. at 15. Yet, because she was tried jointly with
- 113 - Hernández, who was also charged with a series of unrelated bribes
involving other public officials, "[t]he jury before which López
was tried was exposed to days of detailed evidence regarding
Hernández's role in" those other bribery schemes, including
"direct evidence of the corrupt intentions of those alleged to
have been involved." Id. at 14. This court vacated López's
conviction because "the evidence about how Hernández corruptly
schemed with others . . . to which her jury . . . was exposed . . .
create[d] a grave risk of spillover prejudice." Id. at 15; see
id. at 15-16. In particular, "that evidence risked leading the
jury in considering her charges to impute the states of mind of
[the individuals who had conspired with Hernández in the separate
bribery schemes] . . . to López." Id. at 15.
The same reasoning applies here. The overarching
conspiracy charge enabled the government to introduce evidence of
other parents' corrupt intent and actions in working with Singer,
which we have described. Just as Martínez recognized a "grave
risk" that the jury imputed to López the state of mind of
Hernández's other collaborators, id., we see an unacceptable risk
that the jury in this case may have imputed other parents' culpable
mental states to the defendants.
Finally, in addition to the specific evidence of other
parents' intent and dissimilar conduct, the sheer number of alleged
coconspirators and the breadth of the alleged overarching
- 114 - conspiracy further substantiates that there was prejudicial
evidentiary spillover in this case. Kotteakos explained that the
risk of prejudice increases with the number of defendants, the
number of conspiracies proven, and the number of alleged
coconspirators. See 328 U.S. at 766-67; see also United States v.
Kemp, 500 F.3d 257, 292 (3d Cir. 2007). Although only Abdelaziz
and Wilson went to trial, the operative indictment charged fifteen
parents from twelve families in addition to alleged named
coconspirators like Caplan, Huneeus, and Isackson who were not
charged in the same indictment but who were treated as
coconspirators for evidentiary purposes at trial. Cf. Kotteakos,
328 U.S. at 766 (noting that "only one conspiracy was charged, but
eight separate ones were proved, involving at the outset thirty-
two defendants"); Dellosantos, 649 F.3d at 110, 111 n.2, 125
(finding spillover prejudice where government charged eighteen
individuals, of whom three went to trial, and evidence proved two
distinct conspiracies).
For those reasons, we agree with the defendants that
there was a significant risk that the evidentiary spillover in
this case prejudiced them and affected their substantial rights.
See Monserrate-Valentín, 729 F.3d at 49-50.
The government's responses are unpersuasive. The
government first contends that at least some of the evidence
- 115 - related to other parents may have been admissible against Abdelaziz
or Wilson as proof of their participation in narrower conspiracies.
But "[w]e . . . cannot see how evidence of such depth and quality
about the nature of the allegedly corrupt scheme[s]" in which
Singer engaged with other parents "could have been admitted at a
trial against" Abdelaziz or Wilson on narrower conspiracy charges,
and "the admission of that evidence in a trial of [Abdelaziz or
Wilson] still would have been limited by Federal Rule of
Evidence . . . 403."35 Martínez, 994 F.3d at 14.
Next, the government argues that the record shows
distinct treatment of evidence related to other parents sufficient
to mitigate the risk of prejudice resulting from evidentiary
spillover. We disagree. The prosecution did, at various times
during its opening statement and closing argument, remind the jury
that "[t]his trial is about [Abdelaziz and Wilson], what they knew,
what they intended and what they agreed to do," and encourage
jurors to "[l]ook at what the defendants did and what the
defendants said." But at other times it invited the jury to use
evidence related to other parents to prove the guilt of Abdelaziz
and Wilson; for example, it chose to call as its first witness
35 Rule 403 provides that "[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence."
- 116 - Isackson -- a parent who confirmed that he had never met Abdelaziz
and that, while he had met Wilson at school or charitable events,
he had never had any "substantive conversation[s]" with him, and
whose own scheme was obviously wrongful. It then built on
Isackson's testimony and used it during its closing argument. Its
description during closing argument of "the evidence of how the
scheme worked" drew almost exclusively on Isackson's testimony and
recordings of calls between Singer and other parents. Also in its
closing, the government told jurors: "You know . . . that these
defendants joined in . . . that conspiracy knowingly and
intentionally[,] . . . that the defendants knew what they were
doing and . . . intended to do it, and that they knew that what
they were doing [was] wrong . . . because Bruce Isackson told you
that he knew it . . . ." (Emphasis added.) These statements by
the government itself seriously undermine the government's
contention that the jury would not have considered evidence
regarding other parents in determining what the defendants had
done.
The government also argues that the district court's
instructions to the jury were sufficient to prevent the risk of
spillover. The district court instructed the jury that it must
base its verdict as to each defendant "upon evidence of his own
words and actions" and "assess the evidence against each defendant
individually." However, these limiting instructions "did not
- 117 - suffice to mitigate th[e] risk of spillover prejudice here." Id.
at 15. Martínez explained that a similar limiting instruction was
inadequate to address the risk of evidentiary spillover where
trying a defendant jointly with her codefendants had "enabled the
government to put forth direct evidence of the corrupt intent of
[an alleged coconspirator's] collaborators in a distinct scheme,
even though the government had only circumstantial evidence as to
[the defendant's] state of mind and the trial . . . implicated a
number of players and . . . complicated charges." Id. The same
concerns apply here. "[W]e do not readily assume that a jury
disregards clear directions," Wihbey, 75 F.3d at 775, but, given
the pervasive risk of evidentiary spillover in this case, the
limiting instructions cannot save the convictions.
The government lastly asserts that the convictions can
stand because there was "overwhelming evidence that [Abdelaziz and
Wilson] participated in smaller conspiracies that advanced their
own side-door deals." See, e.g., United States v. Morrow, 39 F.3d
1228, 1235-36 (1st Cir. 1994) (finding no prejudice from
evidentiary spillover where "[t]he admissible evidence against
each appellant amply proved his complicity in [a] narrow[er]
conspiracy"). We think the government's evidence of each
defendant's smaller conspiracy with Singer (which the defendants
admit was sufficient) was not so strong as to be overwhelming in
relation to the significant risk of prejudice posed by the evidence
- 118 - regarding other parents. Cf. Martínez, 994 F.3d at 11, 15-17
(vacating conviction due to spillover prejudice where there was
sufficient evidence to support conviction but government's case
depended on circumstantial evidence from which competing
inferences were possible).
We reject the government's leading argument relying on
the transcripts of calls between Singer and Wilson in which Wilson
verified that his daughters did not actually need to play the
sports for which they would purportedly be recruited; agreed with
Singer's statement that the girls were "athletic enough" for Singer
to "sell" them without raising any "question" and without
"Stanford['s] . . . catch[ing] on"; and suggested that they could
be nonplayers such as "scorekeeper[s]," "water girl[s],"
"manager[s]," or "mascot[s]." The reference to Stanford's
"catch[ing] on" was made by Singer, not Wilson, and record evidence
supports the notion that Singer had for years prior to this
conversation represented to Wilson that the side door was a
longstanding path to admission, the proceeds of which went to the
university itself. This statement, coming as late as it did, must
be weighed against the impression Wilson had gained from years of
conversations with Singer and from Wilson's experience arranging
a side door for his son years earlier. The government's view also
requires a further inference by the jury that Wilson did not
believe that the university and upper-level administrators tacitly
- 119 - approved of side-door admission even if that policy was not known
to everyone in the university, and that he did not think Singer
was referring to such a dynamic when he spoke about
"Stanford['s] . . . catch[ing] on."
The references to other nonplayer roles for Wilson's
daughters (for instance, as managers) at least equally support the
defendants' argument that they understood side-door admission
through athletics was a practice the universities had approved, at
least tacitly. Indeed, testimonials on Singer's website described
his assisting other clients in obtaining both college admission
and positions as "managers" for college sports teams. Thus, to
construe this evidence as showing Wilson's guilty intent, the jury
would have to make at least one inference, even if a reasonable
one: that Wilson made these statements knowing that the
universities in question did not condone the practice, such that,
even if he believed his payments to be part of a quid pro quo, he
did not in good faith believe that such a quid pro quo was welcomed
by the universities and so did not amount to bribery. And such an
inference regarding Wilson's good or bad faith intent based on his
understanding of Singer's scheme is precisely the sort that stands
to be prejudiced by the evidence of the bad faith intent of other
parents when committing similar conduct, as well as evidence of
dissimilar conduct that could not plausibly be accompanied by good
faith intent.
- 120 - As to Abdelaziz, the government points chiefly to a phone
call that took place between him and Singer after his daughter had
already matriculated at USC, in which Singer told him that USC's
Admissions Department was investigating why his daughter "did not
show up for Women's Basketball in the fall," and that the USC
administrator with whom Singer had negotiated the side door had
told the Admissions Department that it was because Abdelaziz's
daughter had suffered an injury. Singer then told Abdelaziz: "And
I doubt that Admissions will call you regarding [your daughter],
you know, getting in through the side door and . . . not showing
up for practice. . . . But they may ask you . . . So I just wanted
you to know in case they call . . . ." Abdelaziz responded by
asking Singer whether the Admissions Department would ask his
daughter and whether he should "prepare her." Singer said they
would not ask her, but might call Abdelaziz, and Abdelaziz
responded: "That's fine. I will answer the same [regarding the
purported injury], uh, should they call me."
The government argues that this phone call is strong
evidence that Abdelaziz understood that the side door was "at odds
with the Admissions Department's expectations." But, while it
certainly is relevant evidence on that score, the jury -- as with
Wilson's phone call -- would have to make multiple inferences to
arrive at such a conclusion, such as that this later conversation
(which occurred after Abdelaziz's daughter had already
- 121 - matriculated at USC) was also reflective of his earlier intent,
and that he did not believe that other actors and administrators
at USC, including potentially higher-up administrators, tacitly
approved of and welcomed these side doors even if other USC
administrators were not aware of that.
We again point out that the more sweeping the charged
conspiracy, the higher the bar for showing that the evidence was
"overwhelming," and consequently for showing that an error was
harmless. As Kotteakos itself explained, "it is one thing to hold
harmless the admission of evidence [in a case] where only two
conspiracies involving four persons all told were proved, and an
entirely different thing to apply the same rule where, as here,
only one conspiracy was charged, but eight separate ones were
proved." 328 U.S. at 766; see also Kemp, 500 F.3d at 292. Indeed,
the Court in Kotteakos itself commented that each defendant "was
clearly shown to have shared in the fraudulent phase of the
conspiracy in which he participated," but nonetheless reversed the
lower court's finding that the error was harmless because it "d[id]
not understand how it can be concluded, in the face of the
instruction, that the jury considered and was influenced by nothing
else." 328 U.S. at 771. And since that was the case in Kotteakos,
where the Court found that the indictment alleged at least eight
separate conspiracies, we do not see how that would not be the
case here, where the indictment alleges at least fifteen.
- 122 - For these reasons, we agree with the defendants that the
risk of evidentiary spillover in this case rendered prejudicial
the variance between the broader conspiracy charged in the
indictment and the narrower ones shown at trial. We therefore
vacate the conspiracy convictions (Counts One and Two of the
operative indictment).36
C.
Because we have already vacated Wilson's conspiracy and
substantive wire fraud convictions and address his tax conviction
in the next section, we focus here on whether our holding vacating
the conspiracy convictions due to a prejudicial variance requires
us also to vacate his substantive convictions for federal programs
bribery under § 666. Wilson's brief repeatedly asserts that the
prejudicial variance requires a new trial on "all counts."
Although the government's brief explicitly acknowledges Wilson's
contention that the prejudicial variance requires us to vacate his
36 We do not reach Abdelaziz's argument that the variance was prejudicial because there was not venue in the District of Massachusetts for the smaller conspiracy. Abdelaziz has not argued that we must conduct a venue analysis even where we conclude that a variance is prejudicial on alternative grounds. Nor did he seek distinct relief based on his venue argument in his opening brief, which sought only vacatur of his conviction. To the extent Abdelaziz claims an entitlement to different relief in his reply brief, that argument has been waived. See, e.g., Green Earth Energy Photovoltaic Corp. v. KeyBank Nat'l Ass'n, 51 F.4th 383, 391 n.15 (1st Cir. 2022). We do not address any Double Jeopardy Clause issues as they are not before us, and we express no opinion on the matter.
- 123 - substantive convictions, it does not develop any distinct
counterargument against this claim, instead relying on its general
argument that there was insufficient spillover prejudice to
warrant vacating any of the defendants' convictions.37
Wilson's argument for vacating the § 666 convictions
effectively amounts to a retroactive-misjoinder claim. See, e.g.,
Mubayyid, 658 F.3d at 72-73, 72 n.39; United States v. Hamilton,
334 F.3d 170, 181-82 (2d Cir. 2003). "Retroactive misjoinder
occurs where joinder was proper initially because of a conspiracy
allegation, but where later developments, such as [a] . . . court's
decision . . . to set aside a defendant's conspiracy conviction,
appear to render the initial joinder improper." Mubayyid, 658
F.3d at 72 n.39 (quoting United States v. Deitz, 577 F.3d 672, 693
(6th Cir. 2009) (alterations and internal quotation marks
omitted)); accord Hamilton, 334 F.3d at 181. To win "a new trial
on the ground of retroactive misjoinder, a defendant 'must show
compelling prejudice,'" which "may be found where there is
'[p]rejudicial spillover from evidence used to obtain a conviction
37 In particular, the government has not argued that Wilson failed to preserve his claim that the prejudicial variance requires vacating his substantive convictions, and so we need not decide whether plain error review would apply, had the government argued for it. See United States v. Encarnación-Ruiz, 787 F.3d 581, 586 (1st Cir. 2015) ("When the government fails to request plain error review, we, and many of our sister circuits, review the claim under the standard of review that is applied when the issue is properly preserved below.").
- 124 - subsequently reversed on appeal.'" Hamilton, 334 F.3d at 181-82
(alteration in original) (first quoting United States v.
Vebeliunas, 76 F.3d 1283, 1293 (2d Cir. 1996); and then quoting
United States v. Jones, 16 F.3d 487, 493 (2d Cir. 1994)). As in
the variance context, succeeding on a claim of spillover prejudice
requires Wilson "to show prejudice so pervasive that a miscarriage
of justice looms." United States v. Correia, 55 F.4th 12, 36-37
(1st Cir. 2022) (internal quotation marks omitted) (quoting United
States v. Simon, 12 F.4th 1, 43-44 (1st Cir. 2021)).
For all the reasons just discussed in the variance
analysis, we conclude that this case meets that standard. As with
the conspiracy charges, Wilson's intent in his dealings with Singer
was a key issue with respect to the substantive § 666 counts. See
18 U.S.C. § 666(a)(2) (covering only parties that act
"corruptly . . . with intent to influence or reward an agent of an
organization"). And the government offers no reason -- and we can
think of none -- why the risk of spillover from evidence of other
parents' dealings with Singer would be less acute with respect to
Wilson's substantive § 666 counts than with respect to the related
conspiracy charges.
Nor is this "a case in which the results of the trial
might be thought to undermine any claim of prejudice." Martínez,
994 F.3d at 16. We have observed that "a discriminating verdict,"
in which the jury convicts on some charges but not others, "is an
- 125 - indication that spillover prejudice did not infect the jury's
decisional calculus." Correia, 55 F.4th at 38; see id. at 38-39.
The jury in this case returned guilty verdicts on all counts,
offering no reassurance that jurors were "[]able to
compartmentalize the evidence of each offense." Id. at 39 (quoting
Mubayyid, 658 F.3d at 74).
Case law from other circuits supports our conclusion.
See, e.g., United States v. Tellier, 83 F.3d 578, 581-82 (2d Cir.
1996) (finding retroactive misjoinder where a RICO count on which
the court found there had been insufficient evidence to convict
had allowed the government to introduce "enormous amount[s] of
prejudicial spillover evidence" related to "criminal activities in
which [the] defendant did not participate"); Jones, 16 F.3d at
492-93 (applying retroactive misjoinder where count on which court
had vacated conviction had allowed government to introduce
inflammatory evidence of defendant's criminal history); United
States v. Aldrich, 169 F.3d 526, 528-29 (8th Cir. 1999) (similar).
The Second Circuit, for example, has developed a "three-
part test" for assessing retroactive-misjoinder claims based on
prejudicial spillover. Hamilton, 334 F.3d at 182. It examines:
(1) whether the evidence introduced in support of the vacated count "was of such an inflammatory nature that it would have tended to incite or arouse the jury into convicting the defendant on the remaining counts," (2) whether the dismissed count and the remaining counts were similar, and (3) whether
- 126 - the government's evidence on the remaining counts was weak or strong.
Id. (quoting Vebeliunas, 76 F.3d at 1294 (internal quotation marks
omitted)). This test is satisfied here. As to the first prong,
the powerful evidence of other parents' obviously culpable conduct
was potentially inflammatory -- far more so than the evidence of
Wilson's own acts. As to the second prong, the Second Circuit has
explained that "prejudicial spillover is unlikely if the dismissed
count and the remaining counts were either quite similar," such
that the evidence relevant to the invalidated count would be
independently admissible in connection with the other charges, "or
quite dissimilar," such that a jury could readily compartmentalize
the evidence. Id. at 182; see id. at 182-83. For the reasons
described in the variance analysis, this case falls in the middle
ground between these extremes, where a retroactive-misjoinder
finding is appropriate. At least the vast majority of the evidence
of other parents' activities would not have been properly
admissible in a prosecution of Wilson alone. But the evidence was
not so disconnected from Wilson's activities -- bearing, as it
did, on other parents' understanding of their work with Singer --
as to limit the risk that the jury would impute those parents'
mental states to Wilson. Cf. Martínez, 994 F.3d at 14. And, as
to the third prong, we have already explained that the government's
- 127 - evidence related to Wilson himself was insufficiently strong to
counteract the pervasive risk of prejudice.
We vacate Wilson's convictions on the substantive § 666
charges (Counts Eleven and Twelve of the operative indictment).
This result makes it unnecessary to address -- outside the context
of Wilson's tax conviction -- various evidentiary arguments raised
by the defendants as grounds for vacating their convictions. Many
of these rulings may well become moot on remand, and we express no
view on the merits of the defendants' evidentiary arguments with
respect to the conspiracy, mail and wire fraud, and § 666 charges.
We note, however, that the government does not attempt to defend
on appeal many of the bases on which the district court relied in
excluding various exhibits.
V. Affirmance of Wilson's Conviction for Filing a False Tax Return Under 26 U.S.C. § 7206(1)
Finally, we turn to Wilson's conviction for filing a
false tax return under 26 U.S.C. § 7206(1), which makes it a felony
to "[w]illfully make[] and subscribe[] any return, statement, or
other document, which contains or is verified by a written
declaration that it is made under the penalties of perjury, and
which [the individual] does not believe to be true and correct as
to every material matter." We first lay out the relevant facts,
then analyze and reject Wilson's challenges to his conviction.
- 128 - A.
The tax count arises from Wilson's designation of
payments he made in 2014 to secure his son's admission to USC as
business expenses and charitable contributions on his 2014 income
taxes.
At the time he worked with Singer to obtain his son's
admission, Wilson was the sole shareholder of Hyannis Port Capital,
an S corporation. An S corporation is a "pass-through entity"
which does not separately pay federal taxes; instead, the
corporation's "income, losses, deductions, and credits are
attributed to individual shareholders," Bufferd v. Comm'r, 506
U.S. 523, 524-25 (1993); accord Benenson v. Comm'r, 887 F.3d 511,
513 n.1 (1st Cir. 2018), such that Hyannis Port Capital's profits,
losses, and deductions directly affected Wilson's personal tax
liability.
On March 1, 2014, the day after Subco considered and
approved his son's admission, Wilson sent Singer an email with the
subject line "USC fees" that read: "Thanks again for making this
happen! Pls give me the invoice. What are the options for the
payment? Can we make it for consulting or whatever from the [K]ey
[(Singer's business)] so that I can pay it from the corporate
account ? [sic]" Singer replied: "Yes we can send you an invoice
for business consulting fees and you may write off as an expense."
He also requested "the name address etc you want the invoice to be
- 129 - made out to." Wilson responded: "Awesome!" He provided billing
information for Hyannis Port Capital.
On March 29, 2014, Wilson emailed Hyannis Port Capital's
office manager, Debbie Rogers, that "Monday we will get an invoice
and wiring instructions for $250k. To be paid by hpc inc." When
Rogers asked what account the invoice should be charged to, Wilson
replied: "Business Consulting - the invoice will be for
consulting - pls work with [Singer] to get invoice correct." The
following day, Wilson emailed Rogers again, stating that "the
amount is $200,000 not [$]250,000."
Two days later, Rogers told Wilson by email that she had
consulted Singer and one of his business associates, and that they
had said the payment structure would be "[$]100k . . . to
[Singer's] foundation, [$]100k an invoice from the Key [(Singer's
business),] and [$]20k to Rick Singer." Rogers noted that this
totaled $220,000, rather than the $200,000 Wilson had previously
mentioned, and Wilson explained that he had "added $20 k for
[Singer's] expenses." He also confirmed that the entire sum should
be invoiced to Hyannis Port Capital.
Consistent with this plan, Hyannis Port Capital wired
$100,000 to Singer's business, $100,000 to Singer's foundation,
and $20,000 to Singer on April 7, 2014. Nine days later, Singer's
business issued a $100,000 check made out to "USC Men's Water Polo"
on behalf of the "Wilson family."
- 130 - Singer's foundation sent Wilson a letter dated April 7,
2014, acknowledging his "contribution of $100,000" and stating
that "no goods or services were exchanged" for the payment. Singer
and his business also provided invoices, both dated April 1, to
Hyannis Port Capital. The business's invoice purported to be for
"Business Consulting," and Singer's referred to "Special
Consulting . . . Concept, design, and implementation of
Professional Development program for Hyannis Port Capital
associates." Wilson offered no evidence and does not argue on
appeal that Singer or his business actually provided any consulting
services to Hyannis Port Capital. In July, USC also sent Wilson
and his wife a thank-you letter acknowledging a $100,000 gift,
apparently in connection with the $100,000 check from Singer's
business.
On his 2014 tax return, Wilson deducted the $120,000
Hyannis Port Capital paid to Singer and Singer's business as
business expenses and the $100,000 payment to Singer's foundation
as a charitable contribution.38 Wilson does not dispute that the
payment could not properly be deducted as a charitable contribution
if he received goods or services in exchange for the payment.
38 Wilson originally filed a 2014 return in December 2015. He later filed two amended returns, neither of which made any changes to his claimed business expenses or charitable contributions.
- 131 - An IRS agent testified that these deductions saved
Wilson $88,546 in taxes. On cross-examination by Wilson's counsel,
the same agent testified that treating the $120,000 in payments to
Singer and his business as business expenses, rather than deducting
the full $220,000 as charitable contributions, saved Wilson
roughly $1,425. Wilson's tax preparer testified that the exact
effect of deducting the payments as business expenses, rather than
charitable contributions, would have been uncertain until all of
Wilson's tax information was available at the end of the year.
The indictment charged Wilson with filing a false tax
return based on allegations that both the $100,000 charitable
contribution deduction and the $120,000 business expense deduction
were improper. During closing argument, Wilson's counsel asserted
with respect to the charitable deduction that Wilson was "not real
attentive to his taxes" and may have made some unintentional
errors, but "thought he made a donation" and "could get a deduction
for it." He further argued that, given that belief, Wilson would
have had little motive to willfully fraudulently deduct the payment
as a business expense, since the deduction made only a small
difference in his tax liability compared to deducting the entire
sum as a charitable contribution.
The jury returned a general verdict of guilty on the tax
count without specifying the theory on which it relied. Wilson's
- 132 - proposed verdict form had not requested a special verdict giving
the basis for the jury's decision.
Wilson challenges his tax conviction on three grounds.
First, he contends that the conviction must be vacated pursuant to
the Supreme Court's decision in Yates v. United States, 354 U.S.
298 (1957), and its progeny because the verdict may rest on an
invalid legal theory. Second, he argues that spillover prejudice
from the variance in the conspiracy counts also tainted this
conviction. Third, he asserts that the district court prejudiced
his defense through erroneous evidentiary rulings. We consider
these arguments in turn.
We first reject Wilson's argument that we must vacate
his conviction under the Supreme Court's decision in Yates.
The defendants in Yates were charged with a single count
of conspiring (1) "to advocate and teach the duty and necessity of
overthrowing the Government of the United States by force and
violence" and (2) "to organize, as the Communist Party of the
United States, a society of persons who so advocate and teach."
Id. at 300. The Court concluded that the conduct underlying the
latter "organiz[ing]" object had occurred outside the relevant
statute of limitations, such that the defendants could not lawfully
have been convicted of conspiracy on that basis. See id. at
- 133 - 303-11. The Court then rejected the government's argument that
the convictions could nonetheless stand based on the alternative
"advoca[cy]" object, holding that "a verdict [must] be set aside
in cases where the verdict is supportable on one ground, but not
on another, and it is impossible to tell which ground the jury
selected." Id. at 312; see id. at 311-12. In later cases, the
Court has reaffirmed this rule while clarifying that it applies
where "a particular theory of conviction submitted to [the jury]
is contrary to law," and not where one of several alternative bases
for conviction is legally sound but supported by insufficient
evidence. Griffin v. United States, 502 U.S. 46, 59 (1991).
Here, the indictment did offer two types of allegedly
false statements on which the jury could have convicted: Wilson's
deductions for purported charitable contributions and business
expenses. Wilson does not, however, develop an argument that
either of those theories of conviction set forth in the indictment
is legally unsound. He does not disagree with the government's
assertion that the jury could convict based on a "find[ing] that
Wilson willfully made a false statement as to a material matter on
his tax return by falsely claiming the payments were business
expenses and/or that he received no goods or services in exchange
for them [as necessary to claim a payment as a charitable
contribution]." On the contrary, he acknowledges that "perhaps a
jury could [were it not for the alleged Yates and other trial
- 134 - errors] convict on the [business expense deduction] theory," and
appears to concede that "a quid pro quo . . . vitiates any
charitable deduction even if the exchange was otherwise lawful."
He also does not argue that the jury instructions on the tax count
were improper.39
Instead, Wilson posits that the jury might have
convicted him of tax fraud based on its conclusion that he
committed bribery or property fraud, on a theory that unlawful or
fraudulent payments are not deductible. And because, he argues,
his bribery and property fraud convictions were based on legally
flawed premises, the "[d]erivative" tax conviction cannot stand
under Yates.
We reject this argument because the record does not
support Wilson's claim that the jury could have convicted him on
the tax count based on its verdicts on the bribery or property
fraud charges.40 He has not cited anything in the indictment or
the jury instructions that would lead a juror to conclude that a
39 The district court instructed the jury that this count required the government to prove that (1) "Wilson made or caused to be made a [2014] federal income tax return . . . that he verified to be true," (2) the "return was false as to a material matter," (3) "Wilson signed the return willfully and knowingly -- knowing that it was false," and (4) the "return contained a written declaration that it was made under the penalty of perjury." 40 We have also partially rejected Wilson's premise that all of the bribery and property fraud charges are legally unsupportable. See supra Sections II-III.
- 135 - guilty verdict on other charges would necessarily affect the
outcome of the tax count.41 See Skilling, 561 U.S. at 414
(characterizing Yates as holding that "constitutional error occurs
when a jury is instructed on alternative theories of guilt and
returns a general verdict that may rest on a legally invalid
theory" (emphasis added)); Griffin, 502 U.S. at 59 (explaining
that the Yates rule reflects the fact that "[j]urors are not
generally equipped to determine whether a particular theory of
conviction submitted to them is contrary to law" (emphasis added)).
The jury instructions for the tax count, for example, did not
cross-reference the other counts or otherwise suggest that the
jury's findings on the bribery or property fraud charges were
relevant to the tax count. Cf. United States v. Foley, 73 F.3d
484, 493-94 (2d Cir. 1996) (vacating tax fraud conviction where
jury had convicted defendant of bribery under legally invalid
theory and was instructed that bribes were not deductible),
abrogated in part on other grounds by Salinas, 522 U.S. 52.
Certainly, a juror likely would -- and should -- have viewed some
41 As we discuss below, to the extent Wilson argues that, even if the jury did not treat its verdict on the other counts as dictating the outcome of the tax count, the presence of such inflammatory charges might have influenced its verdict on the tax count, we note that Wilson has not challenged on appeal the district court's denial of his motion to sever the tax count from the other charges before trial, and the argument that we must vacate his tax conviction due to retroactive misjoinder lacks merit.
- 136 - factual findings as relevant to multiple counts; for instance,
whether Wilson understood himself to be entering a quid pro quo
guaranteeing his son's admission in exchange for payment would
bear both on the § 666 charge and on the legitimacy of his
charitable deductions. But Wilson offers no support for the
assertion that a juror would have viewed the legal status of his
payments as bribes as controlling the legitimacy of his deducting
those payments.
Wilson's strongest argument is that the instruction to
the jury that, "[f]or purposes of the mail and wire fraud statutes,
admission[s] slots are . . . property" -- which we have already
held was erroneous based on the theory presented by the government
at trial and on appeal, see supra Section III.B -- may have
influenced the verdict on the tax count. He contends that, having
been told that an admissions slot is property as a matter of law,
the jury might have concluded that Wilson's payment could not
constitute a valid charitable contribution, since it would have
been made in exchange for goods or services. Taken in context,
however, this erroneous instruction on different counts does not
undermine the jury's verdict. The property instruction was
specifically limited to "the mail and wire fraud statutes," and
Wilson cites nothing else in the instructions that would indicate
to a juror that the verdict on the fraud count should influence
- 137 - the tax count.42 "[We] presum[e] that jurors, conscious of the
gravity of their task, attend closely the particular language of
the trial court's instructions in a criminal case and strive to
understand, make sense of, and follow the instructions given them."
United States v. Olano, 507 U.S. 725, 740 (1993) (alterations in
original) (quoting Francis v. Franklin, 471 U.S. 307, 324 n.9
(1985)). And, although Wilson did move below to sever the tax
count from the other counts due in part to the confusion that might
be caused by the theory that admissions slots are property, he
does not now style his argument as an objection to the district
court's denial of any motion to sever, nor to a failure by the
district court to issue a clarifying instruction on the tax count
to dispel that potential confusion. In the absence of any such
argument, the alleged confusion caused by the district court's
42 The specific limiting language in the property instruction and the distinctness of the instructions relevant to the different counts undermines Wilson's reliance on United States v. Lindberg, 39 F.4th 151 (4th Cir. 2022). Lindberg vacated a defendant's conviction under § 666 because it concluded that a jury instruction incorrectly defining the term "official act" for purposes of a separate bribery charge had "infected" the jury's consideration of the § 666 count. Id. at 164; see id. at 164-65. Although § 666 does not contain an "official act" requirement (it refers instead to payments intended to influence an agent in connection with "any business, transaction, or series of transactions" of an organization), the court recognized that the district court had nonetheless "provided instructions on both counts at the same time using the term 'official act.'" Id. at 164. Wilson does not cite any such overlapping instructions in this case.
- 138 - instructions on a separate count cannot by itself provide a basis
for vacating his conviction on this count.
Wilson also argues that post-trial statements by the
government and district court show that the jury may have convicted
him on the tax count based on its conclusions about the other
charges, but neither statement provides a basis for vacating the
conviction. First, he highlights that the government, in a
memorandum opposing Wilson's post-trial motion for a new trial on
Yates grounds, stated that "the jury could convict [either on the
theory that] Wilson deducted an illegal bribe as business and
charitable deductions, or because he deducted payments . . . that
were not in fact charitable contributions or business expenses."
Although this statement appears to accept Wilson's premise that
the jury could have convicted on this basis, neither Wilson's
motion nor the government's response cited any material presented
to the jury that would have led jurors to believe that the verdict
on the bribery and fraud counts should control the verdict on the
tax count. We decline to vacate the jury's verdict based on a
single sentence in a post-trial filing. Cf. United States v.
McGregor, 650 F.3d 813, 824 n.4 (1st Cir. 2011) (explaining that
concession by government in district court does not bind this
court).
Second, Wilson relies on a ruling by the district court
during sentencing that, for purposes of the tax loss amount
- 139 - applicable during sentencing, Wilson could not claim any of the
$220,000 payment as a legitimate charitable contribution "because
the entire payment was fraudulent." Wilson cites no authority for
the proposition that a statement by the court during sentencing is
relevant to determining the basis for a jury's verdict. This
statement also does not require vacating Wilson's conviction.
Without some clearer grounding in the record, Wilson's
broad argument that the jury might, on its own initiative, have
based its resolution of the tax count on the bribery or property
fraud charges does not create a Yates problem.
We turn to Wilson's argument that the same spillover
prejudice that led us to vacate his conspiracy and substantive
§ 666 convictions also requires us to vacate his tax conviction,
which we understand to be a retroactive-misjoinder argument, even
though Wilson has not characterized it as such. See United States
v. Cadden, 965 F.3d 1, 21 n.7 (1st Cir. 2020) ("'[R]etroactive
misjoinder' arises where joinder of multiple counts was proper
initially, but later developments . . . render the initial joinder
improper." (quoting Jones, 16 F.3d at 493)). In discussing this
alleged evidentiary spillover, Wilson does not draw a distinction
between the charitable and business expense deductions. We
conclude that Wilson has not met his burden to "prove prejudice so
pervasive that a miscarriage of justice looms." Wihbey, 75 F.3d
- 140 - at 776 (quoting Levy-Cordero, 67 F.3d at 1008). Our analysis
applies to both the business expense and charitable contribution
theories.
The government's case on the tax count relied largely on
Wilson's own emails discussing how to structure the payments
related to his son's admission, limiting the risk that Wilson was
convicted based on other parents' conduct. See id. at 775-76
(noting that distinctness of evidence related to charged
coconspirators' conduct reduced danger of evidentiary spillover or
jury confusion); United States v. Moran, 984 F.2d 1299, 1304 (1st
Cir. 1993) (similar). The distinctness of this evidence from
evidence related to other parents also increases the probability
that the jury was able to comply with the district court's
instruction to determine Wilson's "guilt or innocence . . . on an
individual basis." See Wihbey, 75 F.3d at 775 (observing that
similar instruction limited risk of spillover prejudice).
Further, the evidence against Wilson on the tax count,
based on his own words and conduct, was very strong. See Morrow,
39 F.3d at 1235-36 (concluding variance did not warrant vacating
convictions where evidence properly admissible against defendants
"amply proved" their guilt). Importantly, Wilson does not develop
on appeal any argument that, as a matter of substantive tax law,
the statements on his return were true -- that is, that the
payments were properly deductible as business expenses or
- 141 - charitable contributions. He does not meaningfully dispute the
government's theory that the payments did not qualify as business
expenses (because of their personal nature) or as charitable
contributions (because they were his side of a quid pro quo to
secure his son's admission).43 His argument as to spillover
prejudice, and as to the alleged evidentiary errors discussed
below, focuses instead on the required mental state: that the false
return be "ma[de] and subscribe[d]" "[w]illfully." 26 U.S.C.
§ 7206(1) (emphasis added). We thus have no cause to reexamine
the conviction on the basis of substantive tax law, and instead
focus on the evidence of Wilson's intent.
That evidence, with respect to both the business and
charitable deductions, was powerful. After having already
discussed the cost of the side door with Singer, Wilson, apparently
43 In particular, with respect to the business deduction, Wilson does not argue on appeal that the fact that his business was a pass-through S corporation is relevant to the payments' deductibility, thereby waiving any such argument. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). With respect to the charitable deduction, as discussed below, Wilson argues that the district court improperly excluded evidence related to USC's practices in acknowledging donations for tax purposes. He asserts that this evidence would have shown that "back-door and non-Singer side-door donations were . . . fully deductible." But Wilson styles this argument as involving an "evidentiary error[]" bearing on his mental state, and, in his opening brief, does not cite any legal authority explaining why this USC practice would bear on the deductibility of his payments. We thus deem any challenge to the legal deductibility of the payments waived. See id.; United States v. Diggins, 36 F.4th 302, 320 (1st Cir.) (explaining that arguments not developed in an appellant's opening brief are waived), cert. denied, 143 S. Ct. 383 (2022).
- 142 - on his own initiative, asked Singer if the payment could be
designated "for consulting or whatever from [Singer's business] so
that [Wilson] c[ould] pay it from the corporate account." When
Singer responded that he could send an invoice for consulting that
Wilson could "write off as an expense," Wilson responded,
"Awesome!" Wilson then directed his office manager to charge the
invoice to "Business Consulting" and to expect invoices from
Singer. Wilson offered no evidence and does not argue on appeal
that any such consulting actually took place. Indeed, any notion
that Wilson deducted these expenses because he believed that
Singer's college counseling services qualified as "Business
Consulting" is severely undermined by the fact that Wilson deducted
the $20,000 that went to Singer personally on the basis that it
was for the "[c]oncept, design, and implementation of [a]
[p]rofessional [d]evelopment program for Hyannis Port Capital
associates," a service completely unrelated to college counseling,
and one that Singer clearly never performed.
Wilson does not argue that he could plausibly have relied
in good faith on Singer's representation that the payment could
legitimately be "writ[ten] off as an expense" so long as it was
falsely described as for business consulting services, nor would
such an argument be tenable. Instead, Wilson's enthusiastic
response to Singer's statement linking payment from Wilson's
corporate account with a "write off" provides evidence that Wilson
- 143 - was aware of the tax benefits of falsely characterizing the
payments as business expenses and acted willfully to obtain those
benefits.
As for Wilson's deducting the $100,000 payment to
Singer's nonprofit foundation as a charitable contribution, it is
first worth noting that, although Wilson paid $100,000 to Singer's
foundation, it was Singer's for-profit business that then paid
$100,000 to USC. Without some link between the two payments, the
payment to Singer's nonprofit would clearly be in exchange for
goods and services -- the same services that Wilson was
simultaneously attempting to deduct as a business expense.
However, even assuming that Wilson deducted the $100,000
payment to Singer's foundation intending that it reflect a
charitable contribution that would in turn be made to USC, the
government offered strong evidence that Wilson understood this
payment to be part of an explicit quid pro quo to secure his son's
admission, rather than a gift that might also curry some intangible
amount of favor with the university. Singer told Wilson that the
USC men's water polo coach was "giving [him] 1 boys slot" on a
"first come first [sic]" basis. Later, Wilson asked Singer: "When
is [the USC men's water polo coach] going to be able to give us
decision [sic] on USC? And when do I pay u [sic]?" Singer
responded: "No payment of money till [sic] [the USC men's
water polo coach] gets a verbal and written [sic] from
- 144 - admissions . . . ." The day after Subco considered and approved
his son's admission, Wilson thanked Singer "for making this happen"
and asked for an "invoice" with no differentiation between payment
for Singer's services and any contribution to USC, further
suggesting that he viewed the payment as his side of an exchange
to secure his family a concrete benefit, rather than as a gift.
That the deductions ultimately saved Wilson tens of
thousands of dollars on his taxes would give the jury further
reason to conclude that Wilson acted willfully.
Wilson's brief on appeal downplays this evidence,
arguing that Wilson was living overseas at the time of filing;
could not have foreseen "whether or how" classifying the payments
as business expenses, rather than charitable donations, would
affect his tax liability; and ultimately saved only $1,425,
relative to his liability had he deducted the entire $220,000 as
a charitable contribution.44 This argument rests on an assumption
that Wilson believed he could legitimately deduct the entire sum
as a charitable contribution, but the government produced strong
evidence to the contrary. Further, even if this assumption were
correct, the argument offers no plausible good faith explanation
of why Wilson himself sought to classify the payments as consulting
44 Notably, this argument echoes the position Wilson's counsel unsuccessfully presented to the jury during closing argument.
- 145 - fees, and the unpredictability of the resulting tax benefits cuts
both ways -- Wilson may have hoped to gain more through the
maneuver.
We conclude that Wilson has not shown a risk of
evidentiary spillover that warrants vacating his tax conviction.
Finally, Wilson contends that allegedly erroneous
evidentiary rulings by the district court require us to vacate the
tax conviction. The excluded material he cites falls into three
categories: (1) statements by Singer, (2) statements by Wilson,
and (3) evidence related to USC's practices in acknowledging
donations.45 We conclude that, even assuming the district court
erred in excluding this evidence -- a question we need not and do
not decide -- those errors were harmless with respect to the tax
conviction.46
45 Wilson also argues that the district court's exclusion of various evidence related to USC's admissions practices prejudiced his tax count defense by "hobbl[ing] the defense to the bribery and fraud counts." This claim repackages Wilson's Yates argument, and we reject it for the same reasons. In addition, Wilson asserts elsewhere in his brief that the district court erred in declining to suppress certain call recordings the government captured beginning in September 2018. He does not reference this issue in discussing the tax count, and so we do not consider it here. 46 We emphasize that our holding that any error in the exclusion of this evidence was harmless is limited to Wilson's tax conviction. We express no view as to whether the exclusion may have been harmful with respect to any other count.
- 146 - "An error will be treated as harmless only if it is
highly probable that the error did not contribute to the verdict."
United States v. Kilmartin, 944 F.3d 315, 338 (1st Cir. 2019)
(internal quotation marks omitted) (quoting United States v.
Fulmer, 108 F.3d 1486, 1498 (1st Cir. 1997)). "To sustain the
verdict, the reviewing court must be able to say with a fair degree
of assurance that the erroneous ruling did not substantially sway
the jury." Id. (quoting Ruiz-Troche v. Pepsi Cola of P.R. Bottling
Co., 161 F.3d 77, 87 (1st Cir. 1998)); see also id. (requiring "a
panoramic, case-specific inquiry" (quoting United States v. Piper,
298 F.3d 47, 57 (1st Cir. 2002))).
The first category of excluded evidence cited by Wilson
encompasses a variety of statements by Singer to listeners other
than Wilson, including public presentations and communications
with other parents. In these statements, Singer generally depicted
himself as well connected in the realm of college admissions and
experienced in using the side door to help clients' children gain
admission. For example, in a corporate presentation, Singer stated
that he "read applications at two schools every year," including
some of "the . . . most prominent universities in America," and
had "d[one] 761 side doors into the best schools in America." He
asserted to one parent that the "side door is not improper" but is
part of "how all schools fund their special programs or needs,"
- 147 - and told another that he would soon be meeting with "the
President[s] of Harvard and Tufts for lunch."47
Wilson does not contend that he was aware of these
statements during his dealings with Singer. Instead, he argues
that "[a] jury could have reasonably inferred that Singer pitched
the side-door to Wilson in the same way he pitched his advice to
other parents," and that such a pitch would tend to show that
Wilson plausibly could have believed that Singer's business was
legitimate. For several reasons, we conclude that any error in
excluding this evidence was harmless with respect to the tax count.
First, there was other evidence before the jury
regarding Singer's pitch. See, e.g., United States v. Veloz, 948
F.3d 418, 434 (1st Cir. 2020) (finding erroneous exclusion of
evidence harmless where record contained other evidence "to the
same effect"); United States v. Wilkerson, 251 F.3d 273, 280 (1st
Cir. 2001) (similar). An IRS agent who assisted the FBI's
investigation of Singer and his clients testified at trial that
"Singer's general pitch was that [side-door payments were]
donation[s] to . . . program[s]"; that "Singer did not use the
word 'bribe' when he was discussing the side door"; and that even
after he began cooperating with the government, Singer "at
times . . . would go back to his whole pitch and go back to the
47 The district court excluded these statements on a combination of relevance, hearsay, and Rule 403 grounds.
- 148 - old cover story as part of his just being used to saying 'donation'
when we asked him to say payment." The agent even acknowledged
that Singer's framing of the side door as a donation "does not
sound bad." The jury evidently found this similar evidence
unpersuasive.
The probative value of the excluded material with
respect to the tax count was also quite low. See, e.g., United
States v. Brown, 805 F.3d 13, 17 (1st Cir. 2015) (finding
evidentiary error harmless where jury likely gave little weight to
improperly admitted material). Singer's statements have little
apparent relevance to the business deduction theory of tax fraud,
as a belief on Wilson's part in Singer's legitimacy would not
provide a basis for classifying the payments as business expenses,
and Wilson does not offer any explanation for how that could be
otherwise. With respect to the charitable deduction, Wilson's
understanding of Singer's legitimacy would at most be tangentially
relevant to his understanding of whether the payment was pursuant
to a quid pro quo, which Wilson does not dispute would "vitiate[]
any charitable deduction." And in order to rely on the evidence
at all, the jury would need to infer that Singer made similar
statements to Wilson himself and that Wilson relied on those
statements -- a possible, but hardly inevitable, conclusion.
Most importantly, as discussed above, the government's
evidence on the tax count was powerful with respect to both the
- 149 - charitable and business expense deductions. See, e.g., Kilmartin,
944 F.3d at 338-39 (noting that "the strength or weakness of the
government's evidence of guilt is normally the most important
integer in the harmlessness equation"). Considering the totality
of the circumstances, we conclude that any error in the exclusion
of Singer's statements was harmless.
The second category of excluded evidence consists of
statements by Wilson himself. Wilson's brief identifies six
excluded exhibits of this type. The first three are email threads
referring other parents to Singer. In one thread, for example,
Wilson told another parent: "There is a company and [a] CEO I know
well who was a great help to us [with Wilson's son] that might be
very helpful for you too. I would be happy to connect you and pay
for it . . . if you and your daughter would find it useful."
Wilson asserts that a jury might infer "that Wilson would refer
Singer's services to [other parents] only if he believed those
services were legitimate."
The other three excluded statements appear in emails
from Wilson to Singer about his son's admission and enrollment at
USC. In one, sent at the beginning of his son's senior year of
high school, Wilson asked whether it was important for his son to
retake the ACT and SAT, saying that it "[s]eem[ed] like a lot [to
do] in the fall." The other two, sent during the summer before
his son's enrollment at USC, inquired about the start date for his
- 150 - son's water polo practices.48 Wilson argues that these emails
might lead a jury to conclude that Wilson believed that "Singer
was legitimate, that his son needed to do well on his tests, and
that his son was going to play water-polo."
We conclude, for similar reasons as with Singer's
statements, that, even assuming the exclusion of this evidence was
erroneous, it was harmless with respect to the tax count.
Again, evidence similar to the excluded material was
before the jury. See Veloz, 948 F.3d at 434; Wilkerson, 251 F.3d
at 280. In a recorded call introduced into evidence by the
government, Wilson told Singer that he planned to refer a friend
to him -- apparently the same friend who received one of the three
excluded referrals.49 Another government exhibit included emails
from Wilson to Singer in which Wilson asked whether "it w[ould] be
known that [his son was] a bench warming candidate," noted that
"[o]bviously his skill level m[ight] be below the other freshmen,"
inquired whether his son would "be so weak as to be a clear misfit
at practice," and stated that he "want[ed] to be sure [his son
48 As with the Singer statements, the district court excluded these exhibits on a combination of relevance, hearsay, and Rule 403 grounds. 49 During the call, Wilson identified the friend by name, identified his employer, and said the friend had a daughter who "want[ed] to go to Brown." One of the excluded referrals was addressed to a parent with the same name whose email address corresponded to the friend's employer, and noted that the parent's daughter "ha[d] a strong interest in Brown."
- 151 - would] not [be] a lepper [sic]." And, although neither party
mentions as much in its briefing, one of Wilson's water polo
inquiries appears to have been admitted as part of a government
exhibit; indeed, when introducing the exhibit, the government had
a witness read Wilson's email aloud to the jury.
respect to the tax count was also low. See, e.g., Brown, 805 F.3d
at 17. For the same reasons as with Singer's statements, whether
Wilson believed that Singer's services were legitimate has limited
relevance to his state of mind for purposes of the tax count. And,
in any event, the excluded statements provide only weak evidence
about Wilson's understanding of Singer's legitimacy. Wilson does
not dispute that Singer provided at least some legitimate services
in addition to admission through the side door, and the referral
emails -- which do not mention the side door by name -- could be
for those services, shedding little light on Wilson's perception
of the legitimacy of the services Singer provided to him. Further,
the email regarding exam scores is, as the government argues,
"consistent with questioning whether [Wilson's son] had to worry
more about test scores at all given the side-door arrangement in
place," and the emails about water polo would be consistent with
Wilson's believing that, even if his son was not a legitimate
athlete, he needed to at least pretend to be a team member for the
side-door scheme to work. Cf. United States v. Sabean, 885 F.3d
- 152 - 27, 42 (1st Cir. 2018) (finding any error harmless where excluded
"statements had as much of a tendency to inculpate the defendant
as to exonerate him," because "the net impact of the evidence was
likely a wash").
Given the government's strong evidence on the tax count,
we conclude it is highly probable the exclusion of these exhibits
did not taint Wilson's conviction. See Kilmartin, 944 F.3d at
338-39.
Finally, Wilson argues that the district court
erroneously excluded evidence related to USC's practices in
acknowledging donations for tax purposes. Federal tax law
generally requires a charitable organization that receives a
payment made "partly as a contribution and partly in consideration
for goods or services" to (1) inform the donor that only the excess
value of the payment beyond the value of those goods or services
is deductible for federal tax purposes, and (2) provide an estimate
of the value of the goods or services for the donor to use in
preparing her taxes. 26 U.S.C. § 6115(b); see id. § 6115(a).
Wilson sought to introduce evidence that USC did not advise other
donors that they were required to offset the value of their
charitable deductions by the value of any admissions benefits
received in exchange for their donations. In particular, in
response to a subpoena, USC offered "to provide a declaration
explaining that . . . it ha[d] no responsive documents reflecting
- 153 - that USC instructed a donor to reduce his or her tax deductability
[sic] in connection with an admission decision because USC does
not offer admission to any applicant in exchange for quid pro quo
payments." Wilson argues that this evidence, which the district
court excluded on relevance grounds, "would have supported the
good-faith legitimacy of Wilson's deductions" by showing that he
"reasonably believed that no offset was required." The government
does not develop any argument that this evidence was properly
excluded; it instead contends that the exclusion was harmless. We
agree.
The evidence's probative value was limited. See, e.g.,
Brown, 805 F.3d at 17. It had no bearing on the legitimacy of
Wilson's deductions for business expenses. And it would provide
only indirect support for Wilson's claim that he believed the
charitable deductions to be legitimate. Wilson did not contend
below that he was aware of USC's donation acknowledgement practices
at the time he filed his tax return; indeed, the district court
excluded the evidence because Wilson did not show such awareness.
Instead, we understand Wilson's brief to argue that evidence that
USC did not instruct other donors to offset charitable deductions
by the value of any admissions boost received would have made
Wilson's belief that such an offset was not required appear more
reasonable and, as a result, more likely to be sincere. See United
States v. Lachman, 521 F.3d 12, 19 (1st Cir. 2008). But to the
- 154 - extent Wilson asserts that this evidence confirms the
reasonableness of his belief in the deduction's legitimacy because
it shows that USC shared that belief, the language of USC's
proposed declaration undercuts his argument. The university
claims not to have instructed donors to offset the value of their
contributions only because it "does not offer admission to any
applicant in exchange for quid pro quo payments." But we have
already shown why the evidence is very strong that Wilson could
not have believed in good faith that he was not engaging in a quid
pro quo. And to the extent Wilson argues that he was not aware
that the benefit he received in that quid pro quo was the kind of
valuable benefit that would preclude his payment from being
deductible, nothing in the disputed document bears on that
question, since the document at most establishes the ordinary point
that a donation not given pursuant to a quid pro quo is fully
deductible. In truth, then, the proposed declaration does not
support Wilson's position, meaning that the exclusion of that
declaration was not prejudicial.
Given this context, the government's strong evidence on
both theories of the tax count again enables us to "say with a
fair degree of assurance that the [exclusion of this evidence] did
not substantially sway the jury," rendering any error harmless.
Kilmartin, 944 F.3d at 338 (quoting Ruiz-Troche, 161 F.3d at 87).
We affirm Wilson's tax conviction.
- 155 - VI. Conclusion
For the foregoing reasons, we affirm Wilson's conviction
for filing a false tax return in violation of 26 U.S.C. § 7206(1)
(Count Thirteen of the operative indictment). We vacate
Abdelaziz's and Wilson's other convictions, and remand for
proceedings consistent with this opinion.
- 156 -
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Cite This Page — Counsel Stack
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