United States v. Abdelaziz

(citation omitted).

But the Supreme Court's 1987 decision in McNally

"stopped [the theory] in its tracks."

"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."

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

(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."

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.

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,

. 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,

(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,

(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,

; 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,

(quoting Mangual-Santiago,

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,

(quoting Mangual-Santiago,

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,

; 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

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,

(quoting

Mangual-Santiago,

). 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

(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,

; 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,

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.

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,

. 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,

(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.

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."

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."

. 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."

; 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."

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."

. 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."

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

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."

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.

(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.

- 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."

(quoting Ruiz-Troche v. Pepsi Cola of P.R. Bottling

Co.,

161 F.3d 77, 87

(1st Cir. 1998)); see also