United States Court of Appeals
`For the First Circuit
`
`
`
`
`No. 22-1129
`
`
`
`No. 22-1138
`
`UNITED STATES,
`
`Appellee,
`
`v.
`
`GAMAL ABDELAZIZ,
`
`Defendant, Appellant.
`
`
`
`UNITED STATES,
`
`Appellee,
`
`v.
`
`JOHN WILSON,
`
`Defendant, Appellant.
`
`
`APPEALS FROM THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
`
`[Hon. Nathaniel M. Gorton, U.S. District Judge]
`
`
`
`
`
`
`
`Before
`
`Barron, Chief Judge,
`Lynch and Lipez, Circuit Judges.
`
`
`
`
`Joshua C. Sharp, with whom Brian T. Kelly, Lauren A. Maynard,
`
`and Nixon Peabody LLP were on brief, for appellant Abdelaziz.
`
`
`For the First Circuit
`
`
`
`
`No. 22-1129
`
`
`
`No. 22-1138
`
`UNITED STATES,
`
`Appellee,
`
`v.
`
`GAMAL ABDELAZIZ,
`
`Defendant, Appellant.
`
`
`
`UNITED STATES,
`
`Appellee,
`
`v.
`
`JOHN WILSON,
`
`Defendant, Appellant.
`
`
`APPEALS FROM THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
`
`[Hon. Nathaniel M. Gorton, U.S. District Judge]
`
`
`
`
`
`
`
`Before
`
`Barron, Chief Judge,
`Lynch and Lipez, Circuit Judges.
`
`
`
`
`Joshua C. Sharp, with whom Brian T. Kelly, Lauren A. Maynard,
`
`and Nixon Peabody LLP were on brief, for appellant Abdelaziz.
`
`
`
`Noel J. Francisco, with whom Yaakov M. Roth, Marco P. Basile,
`Harry S. Graver, Jones Day, Michael Kendall, Lauren M. Papenhausen,
`White & Case LLP, Andrew E. Tomback, and McLaughlin & Stern, LLP,
`were on brief, for appellant Wilson.
`Elliott M. Davis, Kateland R. Jackson, Scott A. Chesin, and
`Shook, Hardy & Bacon L.L.P. on brief for Former United States
`Attorneys, amici curiae.
`Michael J. Iacopino, Brennan Lenehan Iacopino & Hickey,
`Steven F. Molo, Leonid Grinberg, Justin V. Shur, Kenneth E. Notter
`III, and MoloLamken LLP on brief for the National Association of
`Criminal Defense Lawyers and the American Board of Criminal
`Lawyers, amici curiae.
`Robert T. Smith, Mary Fleming, Timothy H. Gray, and Katten
`Muchin Rosenman LLP on brief for Law Professors, amici curiae.
`Alexia R. De Vincentis, Assistant United States Attorney,
`with whom Rachael S. Rollins, United States Attorney, and Donald
`C. Lockhart, Ian J. Stearns, Stephen E. Frank, Leslie A. Wright,
`and Kristen A. Kearney, Assistant United States Attorneys, were on
`brief, for appellee.
`
`
`
`May 10, 2023
`
`
`
`
`
`
`
`LYNCH, Circuit Judge. The convictions underlying this
`
`appeal arise from a government criminal prosecution of alleged
`
`misconduct related to college admissions. The government alleged
`
`that Rick Singer -- a college admissions consultant -- and his
`
`clients engaged in various forms of bribery and fraud to help
`
`secure those clients' children's admission to competitive
`
`universities. Singer, who pleaded guilty in a separate case to
`
`multiple charges1 and cooperated with the government's
`
`investigation, is not a defendant here, and his culpability is
`
`well established.
`
`The defendants-appellants in this case are two parents,
`
`Gamal Abdelaziz and John Wilson, who hired Singer. Both men agreed
`
`with Singer to make payments purportedly to university accounts in
`
`exchange for university employees' securing their children's
`
`admission as athletic recruits -- a path to admission Singer
`
`referred to as the "side door."2 Their defense at trial and on
`
`appeal is that they believed Singer's services and the side door
`
`to be legitimate and that they acted in good faith.
`
`
`1
`Singer pleaded guilty to conspiracy to commit
`racketeering, see 18 U.S.C. § 1962(d); conspiracy to commit money
`laundering, see id. § 1956(h); obstruction of justice, see id.
`§ 1512(c)(2); and conspiracy to defraud the United States, see id.
`§ 371.
`
`2
`Singer contrasted this side door with the "front door"
`(admission on merit) and the "back door" (admission through large
`"institutional advancement" donations).
`
`- 3 -
`
`
`
`
`
`The government charged Abdelaziz and Wilson with
`
`multiple offenses based on their work with Singer. It alleged
`
`that both defendants had participated in an overarching conspiracy
`
`not only with Singer but also with other Singer clients to
`
`corruptly influence university employees through payments to
`
`university accounts, in violation of the federal programs bribery
`
`statute. See 18 U.S.C. § 666. It further alleged that Abdelaziz
`
`and Wilson conspired with other parents to commit two types of
`
`mail and wire fraud: honest services fraud, by using their payments
`
`to deprive the universities of the honest services of their
`
`employees, and property fraud, by depriving the universities of
`
`property in the form of "admissions slots." See id. §§ 1341, 1343,
`
`1346, 1349. It also charged Wilson with several substantive counts
`
`of federal programs bribery and wire fraud, and with filing a false
`
`tax return in connection with his payments through Singer. See 26
`
`U.S.C. § 7206(1).
`
`
`
`A jury convicted both Abdelaziz and Wilson of all
`
`charges. The defendants challenge those convictions on a number
`
`of grounds. They contend that payments to university accounts
`
`cannot violate § 666 or constitute honest services fraud because
`
`the payments were intended for accounts owned by the
`
`universities -- the alleged victims of the scheme. They argue
`
`that the property fraud theory is invalid because admissions slots
`
`are not property, or, in the alternative, that their convictions
`
`- 4 -
`
`
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`must be vacated because the district court erred by instructing
`
`the jury that admissions slots are property as a matter of law.
`
`And they argue that the government proved only a narrower
`
`conspiracy than the one alleged by the indictment and that this
`
`variance prejudiced them on all counts. Wilson also asserts that
`
`various forms of trial error require us to vacate his conviction
`
`for filing a false tax return. Our task in this appeal is to
`
`assess these arguments and determine whether the charged conduct
`
`falls within the specific crimes of which these defendants were
`
`convicted and whether the manner in which this case was charged
`
`and tried unacceptably deprived these two defendants of a fair
`
`trial on their own conduct, rather than the conduct of others.
`
`Nothing in this opinion should be taken as approval of the
`
`defendants' conduct in seeking college admission for their
`
`children.
`
`
`
`We reject the defendants' argument that payments to
`
`accounts controlled by the alleged victim of a bribery scheme
`
`cannot violate § 666, which lacks any basis in the provision's
`
`text, and so deny their request for judgment of acquittal on that
`
`basis. And we affirm Wilson's conviction for filing a false tax
`
`return.
`
`
`
`We do hold that the government's honest services theory
`
`is invalid as a matter of law under the Supreme Court's decision
`
`in Skilling v. United States, 561 U.S. 358 (2010), and that, on
`
`- 5 -
`
`
`
`the arguments offered by the government, the district court erred
`
`in instructing the jury that admissions slots constitute property.
`
`Accordingly, we vacate the defendants' mail and wire fraud
`
`convictions. We also hold that the government failed to prove
`
`that Abdelaziz or Wilson agreed to join the overarching conspiracy
`
`among Singer and his clients charged in the indictment, and that
`
`this variance prejudiced the defendants by allowing the government
`
`to introduce a significant amount of powerful evidence related to
`
`other parents' wrongdoing in which these defendants played no part,
`
`creating an unacceptable risk that the jury convicted Abdelaziz
`
`and Wilson based on others' conduct rather than their own. On
`
`that basis, we vacate the conspiracy convictions and Wilson's
`
`substantive convictions under § 666.3
`
`I. Background
`
`We begin by laying out the basic facts and procedural
`
`history. We elaborate on this background information as necessary
`
`in our analysis of the legal issues.
`
`
`3
`We acknowledge and thank the amici curiae for their
`submissions in this case. Eleven former U.S. Attorneys, five
`criminal law professors, and the National Association of Criminal
`Defense Lawyers and the American Board of Criminal Lawyers filed
`briefs in support of Wilson.
`
`- 6 -
`
`
`
`A.
`
`1.
`
`The charges against Abdelaziz stem from his work with
`
`Singer in 2017 and 2018 to secure his daughter's admission to the
`
`University of Southern California ("USC"). Abdelaziz had
`
`previously paid Singer to work with his two older children in 2012
`
`and 2013; the government does not argue or cite any evidence that
`
`these 2012 and 2013 services for Abdelaziz's children were
`
`improper.
`
`It is undisputed that Abdelaziz agreed with Singer in
`
`approximately June 2017 to pursue side-door admission to USC for
`
`his daughter. Abdelaziz maintains that he believed this option to
`
`be at least tacitly approved by the school and to entail
`
`"preferential admissions treatment to students like [Abdelaziz's
`
`daughter] who could assist athletic teams as practice players or
`
`team managers and whose parents donated to the athletic
`
`department." At the time, Abdelaziz's daughter had not played
`
`competitive basketball in over a year; she had played for her
`
`school's junior varsity team until January or February 2016 but
`
`had stopped playing after failing to make the varsity team. A USC
`
`admissions officer testified that Abdelaziz's daughter was also
`
`not an academically competitive applicant outside the athletic
`
`recruitment process.
`
`- 7 -
`
`
`
`On July 16, 2017, Singer sent Abdelaziz an email with
`
`the subject line "For Me to complete USC athletic profile" that
`
`requested information about Abdelaziz's daughter's scholastic and
`
`athletic accomplishments, including "If they play the sport-
`
`Basketball," "Accolades if they have them," and "Action Picture."
`
`Abdelaziz forwarded the email to his wife, but the record does not
`
`otherwise show any response. Eleven days later, Singer emailed
`
`Abdelaziz again to request "an action photo or two of [Abdelaziz's
`
`daughter] playing basketball." Abdelaziz responded: "Got it." He
`
`then sent Singer five photos of high school girls' basketball
`
`games, four of which -- as Abdelaziz represents in his brief and
`
`the government does not dispute -- contained his daughter, and one
`
`of which did not. The file names for the photos used generic
`
`letters and numbers (for example, "DSC_0007.JPG") and differed
`
`only in the numbers. Singer responded: "We will use this one."
`
`His email identified the chosen photo -- the one that did not
`
`contain Abdelaziz's daughter -- only by the file name.
`
`Singer instructed one of his associates to prepare the
`
`profile. The associate did so; the result included the photo
`
`Singer had selected and various basketball statistics and
`
`accolades that the associate invented and that Abdelaziz's
`
`daughter had not earned. Singer sent this profile to Abdelaziz in
`
`early August, together with a message from his associate: "Let me
`
`- 8 -
`
`
`
`know if you want me to add any other awards to her profile or if
`
`you think that is enough."
`
`As he did at trial, Abdelaziz disputes whether he saw
`
`this message. Singer originally sent the profile to
`
`gamalaziz@cox.net. This address generated an automatic reply that
`
`stated: "Please be advised that I have changed my e-mail address
`
`to gamalaziz797@gmail.com." An FBI agent testified that he was
`
`not aware of any evidence that Abdelaziz opened or responded to
`
`the message, although Abdelaziz later responded to messages Singer
`
`sent to the same cox.net address, having apparently forwarded them
`
`to the gmail.com account mentioned in his automatic reply.
`
`The
`
`next
`
`day,
`
`Singer
`
`also
`
`sent
`
`the
`
`profile
`
`to
`
`amalaziz797@gmail.com -- the address mentioned in the automatic
`
`reply, but without the opening "g." The same FBI agent testified
`
`that, because of the typo, this message would be "off in
`
`cyberspace."
`
`Singer then sent the profile to an administrator in the
`
`USC Athletics Department who had agreed with Singer to facilitate
`
`Abdelaziz's daughter's side-door admission. That administrator
`
`added additional falsehoods to the profile -- including a photo of
`
`a different girl. This version of the profile became the basis
`
`for the profile presented to "Subco," a subcommittee of USC
`
`admissions officers responsible for overseeing admission of
`
`- 9 -
`
`
`
`athletic recruits. Based on this profile, Subco considered and
`
`approved Abdelaziz's daughter's admission on October 5, 2017.
`
`On October 10, the same athletics administrator who
`
`revised Abdelaziz's daughter's profile sent Singer a letter from
`
`the Dean of Admissions conditionally admitting Abdelaziz's
`
`daughter as a recruited athlete, pending her submission of a full
`
`application packet and other administrative tasks. Singer emailed
`
`this letter to Abdelaziz the same day.
`
`In early November, Abdelaziz forwarded the letter to a
`
`Singer employee, together with an email that stated: "[Singer]
`
`asked that we work with you to complete USC's application . . . ."
`
`Abdelaziz later exchanged emails with this employee, Singer, and
`
`another Singer associate about his daughter's application. In
`
`these emails, Singer noted that it was important for the
`
`application to discuss "basketball as apassion [sic]." Abdelaziz
`
`later "reminde[d]" the others of this "direction" when it came
`
`time to edit his daughter's application essays.
`
`In early January 2018, Abdelaziz's daughter sent
`
`Abdelaziz and the Singer employee an application essay in which
`
`she described "[t]he basketball court [as her] art studio" and
`
`wrote: "Whether I am playing alone or in a pickup game with friends
`
`or in front of a crowd of two hundred people at school, I feel an
`
`enormous release from my everyday life when I am on the court."
`
`Abdelaziz responded in the same email thread that he had "read
`
`- 10 -
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`
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`[his daughter's] essays," and opined that "overall [they
`
`were] . . . good." His daughter had not played on the school
`
`basketball team for nearly two years at the time. The Singer
`
`employee submitted Abdelaziz's daughter's USC application the
`
`following day.
`
`Abdelaziz and the government agree that Abdelaziz's
`
`daughter was formally admitted in March 2018, although they do not
`
`cite any exact date in the record.
`
`On March 16, 2018, a foundation run by Singer sent
`
`Abdelaziz an invoice for $300,000,4 purportedly for a "[p]rivate
`
`[c]ontribution." Abdelaziz wired that sum to the foundation ten
`
`days later. Where that money ultimately went is unclear from the
`
`record, but an FBI agent testified that Singer's "general pitch
`
`[to parents] was that [a side-door payment] was a donation to a
`
`program," and government counsel acknowledged at trial that Singer
`
`told Abdelaziz the payment would go to a university account. The
`
`government does not argue on appeal that the jury could have found
`
`that Abdelaziz intended the payment to go to any USC employee
`
`personally.
`
`Abdelaziz's daughter enrolled at USC in fall 2018. She
`
`never played for or otherwise associated with the women's
`
`basketball team.
`
`
`4
`Singer ran both a for-profit business, The Key, and a
`nonprofit foundation, The Key Worldwide Foundation.
`
`- 11 -
`
`
`
`In September 2018, the FBI approached Singer, and he
`
`agreed to cooperate with the government's investigation of his
`
`clients and university insiders. As part of this cooperation
`
`agreement, Singer made various recorded calls at the government's
`
`direction.
`
`The government cites two such calls involving Abdelaziz.
`
`The first occurred on October 25, 2018. During the call, Singer
`
`told Abdelaziz that his foundation was being audited and that the
`
`IRS had "asked . . . about" Abdelaziz's payment. Singer further
`
`stated that he was "not going to tell the IRS anything about the
`
`fact that your $300,000 . . . was paid to . . . [an athletics
`
`administrator] at USC to get [Abdelaziz's daughter] into school
`
`even though she wasn't a legitimate basketball player at that
`
`level." Abdelaziz responded: "OK." Singer asked: "You're OK with
`
`that, right?" Abdelaziz answered: "Of course." A moment later,
`
`he added:
`
`No, I -- I mean, I -- you know, I mean . . .
`my intention was to, uh, donate the money to
`the foundation and, uh, what -- you know, and
`then from there obviously, uh -- I don't
`think -- Uh, do they have the intention of
`reaching out to the people that sent those
`payments?
`
`Singer said he did not know and that he "wanted to make sure our
`
`stories are correct." He told Abdelaziz that he was "going to
`
`essentially say that [the] $300,000 payment . . . was made to our
`
`- 12 -
`
`
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`foundation to help underserved kids," and "wanted to make sure
`
`[Abdelaziz was] OK with that." Abdelaziz replied: "I am."
`
`In the same exchange, Singer told Abdelaziz that the USC
`
`athletics administrator with whom Singer had arranged the side
`
`door had called Singer to say that she "loved" the profile created
`
`for Abdelaziz's daughter and that "going forward, anybody who isn't
`
`a real basketball player that's a female, [she] want[ed] [Singer]
`
`to use that profile." Abdelaziz responded: "I love it."
`
`The second call took place on January 3, 2019. Singer
`
`told Abdelaziz that the same athletics administrator had called
`
`him to "give [him] a heads up" that the Admissions Department had
`
`"asked . . . why [Abdelaziz's daughter] did not show up for Women's
`
`Basketball in the fall," and that the administrator had "told them
`
`that [Abdelaziz's daughter] had an injury." Abdelaziz asked
`
`whether the Admissions Department would ask his daughter about the
`
`situation and whether he needed to "prepare her." Singer stated
`
`that they would not contact Abdelaziz's daughter and that he had
`
`"wanted [Abdelaziz] to know what" the administrator had told the
`
`Admissions Department. Abdelaziz responded: "I will answer the
`
`same, uh, should they call me."
`
`2.
`
`Wilson engaged Singer's services to facilitate side-door
`
`admission for his children on multiple occasions between 2013 and
`
`- 13 -
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`
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`2019: first for his son, and then, years later, for his twin
`
`daughters.
`
`Beginning in spring 2013, Wilson worked with Singer to
`
`secure his son's admission to USC through the side door as a
`
`purported water polo recruit. Singer explained to Wilson by email
`
`that the USC men's water polo coach was "giving [him] 1 boys slot,"
`
`available on a "first come first [sic]" basis. In response to
`
`Wilson's asking when payment was due, Singer responded: "No payment
`
`of money till [sic] [the USC men's water polo coach] gets a verbal
`
`and written [sic] from admissions . . . ."
`
`Wilson's son did play high school water polo, but his
`
`high school coach testified that he was not a player of the level
`
`ordinarily recruited by USC, a noted water polo powerhouse. In
`
`emails sent at the time, Wilson expressed doubts about whether his
`
`son would fit in on the team, asking Singer whether "it w[ould] be
`
`known that [his son was] a bench warming candidate" and whether
`
`his son would "be so weak as to be a clear misfit at practice,"
`
`and stating that "[o]bviously his [son's] skill level m[ight] be
`
`below the other freshmen" and that he "want[ed] to be sure [his
`
`son would] not [be] a lepper [sic]." Singer responded that "the
`
`commitment is to be on the roster[,] not attend all
`
`practices[;] . . . he will have to attend drug tests and other
`
`mandatory functions for 1 year [but then can] walk away/ frankly
`
`after the 1st semester he can move on."
`
`- 14 -
`
`
`
`In August 2013, Singer noted in an email to Wilson that
`
`the water polo coach needed "a player profile so he [could] add
`
`[Wilson's son] to his recruit list and present him to admissions
`
`in October," and that Singer had the necessary materials to create
`
`the profile. Wilson responded: "Great - let me know when [you]
`
`have verified [you] have it all completed and into [sic] [the water
`
`polo coach]." In October, Singer updated Wilson: "[The water polo
`
`coach] has [Wilson's son's] stuff and asked me to embellish his
`
`profile more, which I am doing." A few days later, Singer emailed
`
`the profile to Wilson. It misrepresented several aspects of
`
`Wilson's son's athletic qualifications -- for instance, by
`
`erroneously describing him as a captain of his high school team
`
`and listing implausibly fast swim times. Wilson's counsel argued
`
`both at trial and on appeal that the government did not prove
`
`Wilson was aware of the falsehoods in the profile. Wilson's
`
`counsel emphasized that an FBI agent whose testimony the government
`
`used to introduce the email containing the profile acknowledged
`
`that he was not aware of emails or other evidence showing Wilson
`
`read or responded to Singer's message, and that the profile listed
`
`the wrong home address and used Wilson's son's SAT scores rather
`
`than his more impressive ACT scores, which Wilson purportedly would
`
`have wanted included.
`
`- 15 -
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`
`
`An assistant water polo coach at USC relied on this
`
`profile to prepare the athletic profile used by Subco to consider
`
`whether to admit Wilson's son.
`
`Subco considered and approved Wilson's son's admission
`
`on February 28, 2014, relying in part on the falsified athletic
`
`profile.
`
`The day after Subco approved his son's admission, Wilson
`
`emailed Singer to "[t]hank[] [him] again for making this happen."
`
`He asked about "the options for the payment" and requested an
`
`invoice "for consulting or whatever from [Singer's business] so
`
`that [Wilson could] pay it from [his private equity firm's]
`
`corporate account." After some further discussion of payment
`
`mechanics, Wilson's firm wired $220,000 to a combination of Singer,
`
`his business, and his foundation on April 7, 2014. The government
`
`does not contend that any USC employee personally received a
`
`portion of this payment. Singer passed $100,000 along to the USC
`
`men's water polo team and, so far as the record shows, retained
`
`the other $120,000.
`
`Wilson's son quit the water polo team after his first
`
`semester at USC.
`
`Several years later, in September 2018, Wilson called
`
`Singer about the possibility of helping Wilson's twin daughters,
`
`then juniors in high school, with their college applications. The
`
`government recorded this call, which took place before Singer began
`
`- 16 -
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`
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`cooperating with the government, without the participants'
`
`knowledge. Singer explained that for Wilson's daughters to gain
`
`admission to the highly competitive schools they were interested
`
`in "on their own" would require "essentially perfect grades" and
`
`excellent standardized test scores, but added that "if you said
`
`you wanted to . . . go through a different door you c[ould] do
`
`that." Wilson inquired about "the other door," asking if it was
`
`"like . . . water polo and [a] donation," and Singer explained the
`
`price and availability of admission through the side door at
`
`various universities. Singer informed Wilson that side-door
`
`admission to Stanford or Harvard would cost "a minimum of [$]1.2
`
`million," since a coach would have to "giv[e] up his spot" to a
`
`purported recruit who is "not a good enough athlete[] to compete,"
`
`but would provide a "done deal. Just like with [Wilson's son]."
`
`Singer explained that the sport "d[id]n't matter," saying he "would
`
`make them a sailor or something." Wilson laughed in response.
`
`Wilson observed that they were discussing "big numbers," since
`
`"there's so many people that want to do th[is]," and asked if
`
`"there [was] any way to make [the payments] tax deductible as like
`
`donations to the school." Singer stated that payments would be
`
`deductible as contributions to his foundation.
`
`Wilson and Singer continued to discuss the use of the
`
`side door for Wilson's daughters after Singer began cooperating
`
`with the government. From this point on, Singer's references to
`
`- 17 -
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`
`
`university insiders willing to facilitate side-door admission were
`
`part of a ruse created by investigators.
`
`In a September 29 call, Wilson confirmed that, while his
`
`daughters remained undecided on what schools they wanted to attend,
`
`he was "interested about the side door and that stuff" and asked
`
`what schools and sports were available. Singer assured him that
`
`the side door "is gonna . . . happen where you want it to happen,"
`
`and that crew or sailing might be potential sports options. Wilson
`
`asked: "[W]hat if they're not really that good?" Singer responded:
`
`"[A]t the end of the day . . . I may be able to go to the sailing
`
`coach and say, 'Hey, this family's willing to make the
`
`contributions. . . . [The child] may not be up to the level you
`
`are, but . . . you're gonna get a benefit, and the family's gonna
`
`get [a] benefit.'" Wilson also asked how the payment would work.
`
`Singer stated that "the money [went] into [his] foundation," and
`
`that he would then "split the money potentially to the coach or
`
`other . . . parties that are at that school that need the
`
`money[.] . . . Or it may go right to the coach, . . . depend[ing]
`
`on the school."
`
`In October, Wilson called Singer to discuss "making some
`
`donations now, whatever -- how that can work." Singer stated that
`
`he worked with "a bunch of schools," including Harvard and Stanford,
`
`on a "first come, first served" basis, and that, "if [he] were to
`
`get a deposit . . . [of] like half a million dollars in the bank,"
`
`- 18 -
`
`
`
`they could "figure out where [Wilson's daughters] wanna go" later.
`
`"[H]aving the money already, in advance, [would] make[] it much
`
`easier" because coaches "don't want to give up a spot" unless "the
`
`family guarantee[s] . . . that they're gonna ante up and they're
`
`gonna make a payment." Wilson asked whether his daughters
`
`"actually ha[d] to do th[e] sport" or whether "[t]hey could just
`
`go in and . . . be like . . . the scorekeeper[,] . . . water
`
`girl[,] . . . [or] manager." Singer confirmed that they could be
`
`"[m]anager[s] or whatever you want to call 'em," and that Wilson's
`
`daughters were "athletic and . . . big" enough that he could "sell
`
`to anybody that they're athletic enough to be able to take 'em and
`
`there'll be no question." Singer further assured Wilson that, if
`
`he used the side door, admission would be "a done deal." Wilson
`
`requested that Singer send him wiring information, and confirmed
`
`with Singer that if he sent "[h]alf a million" he would be "locked
`
`in for 2." Wilson's private equity firm wired $500,000 to Singer's
`
`foundation two days later at Wilson's direction.
`
`Later that month, Singer told Wilson that he had spoken
`
`with Stanford's sailing coach, that the coach was willing to
`
`"guarantee[] a spot for next year," and that Wilson could "have
`
`first dibs" if Singer sent the coach the "[$]500,000 that [Wilson]
`
`wired into [Singer's] account to secure the spot for one of
`
`[Wilson's] girls." Singer also mentioned that he had "asked [the
`
`coach] for a second spot in sailing and [the coach] said he
`
`- 19 -
`
`
`
`c[ould]n't do that because he ha[d] to actually recruit some real
`
`sailors so that Stanford d[id]n't . . . catch on." Wilson laughed
`
`and said "[r]ight." Wilson asked for more time for his daughters
`
`to decide where they wanted to go, and inquired whether there was
`
`"any news on the Harvard side." Singer promised to get back to
`
`him.5
`
`On November 29, Singer informed Wilson that they had
`
`"got a spot if . . . [Wilson's daughter] want[ed] to go to Harvard."
`
`He claimed that "the senior women's administrator at Harvard [was]
`
`going to give [Wilson's daughter] a spot," in exchange for which
`
`Wilson would "have to give . . . her . . . $500,000" through
`
`Singer's foundation to "fund the senior women's administrator."
`
`He added: "I've already paid [the Stanford sailing coach] the
`
`[$]500 [thousand] and now we'll give the senior women's
`
`administrator [$]500 [thousand] . . . . [Y]our total's going to be
`
`[$]1.5 [million]. [$]250 [thousand] will come in the spring for
`
`Stanford and [$]250 [thousand] for Harvard in the spring and
`
`we'll . . . be done." Wilson responded: "OK, great." When Wilson
`
`
`5
`Singer and Wilson covered similar ground in a call a few
`days later, in early November. Singer told Wilson: "[W]e got the
`Stanford spot. They wanna know if you want it because I have to
`pay the coach, um, right away." He reiterated that the coach
`"d[id]n't care if it's a sailor or not." He added that he was
`"working" on Harvard, but it would "not happen for several months."
`Wilson again asked for more time to figure out which schools his
`daughters wanted to attend. He also agreed with Singer that his
`daughters "weren't going to get into either" Harvard or Stanford
`without the side door.
`
`- 20 -
`
`
`
`asked what sport his daughter would need to play, Singer answered:
`
`"[The Harvard administrator will] figure it out. . . . [I]t doesn't
`
`matter the sport at this point. She will . . . just get her in
`
`through . . . athletics in one of the sports but it won't matter."
`
`Singer also noted that Wilson's other daughter "w[ould]n't have to
`
`sail but we're going to put her through sailing" at Stanford.
`
`Wilson responded that "sailing is actually a logical thing. She
`
`could be even the mascot, whatever, but she knows sailing." He
`
`confirmed that the plan "sound[ed] fantastic" and was "great news."
`
`Wilson's private equity firm wired a further $500,000 to Singer's
`
`foundation on December 11, again at Wilson's direction.
`
`As with Abdelaziz, the government acknowledged at trial
`
`that Singer "told the parents," including Wilson, "that the money
`
`would go to the athletic program at the schools." On appeal, it
`
`does not argue that the jury could have found that Wilson intended
`
`any of his payments to go to insiders' personal accounts, rather
`
`than to university-owned accounts related to the insiders'
`
`positions.
`
`B.
`
`On March 5, 2019, a federal grand jury in the District
`
`of Massachusetts returned a single-count indictment charging David
`
`Sidoo -- a parent who had worked with Singer -- with conspiracy to
`
`commit mail and wire fraud in connection with Sidoo's allegedly
`
`having paid Singer to have one of his associates take various
`
`- 21 -
`
`
`
`standardized tests for Sidoo's children. The indictment further
`
`alleged that Singer had also paid his associate "to secretly take
`
`the SAT and ACT for the children of other co-conspirators known
`
`and unknown to the Grand Jury."
`
`Six days later, the government filed a separate criminal
`
`complaint alleging that roughly thirty other parents, including
`
`Abdelaziz and Wilson, had conspired with Singer and others to
`
`commit mail fraud and honest services mail fraud. The complaint
`
`alleged varying forms of misconduct by the named parents; some
`
`were alleged to have schemed to help their children cheat on
`
`standardized tests, while others -- like Abdelaziz and Wilson --
`
`were alleged to have conspired to bribe university employees to
`
`secure their children's admission.
`
`Many of the parents named in the complaint elected to
`
`enter plea agreements with the government. For example, Gordon
`
`Caplan, Agustin Huneeus, and Bruce Isackson -- three parents whose
`
`interactions with Singer would later figure in the evidence at
`
`Abdelaziz's and Wilson's trial -- agreed to waive the requirement
`
`of indictment by a grand jury and plead guilty to various offenses
`
`pursuant to criminal informations.
`
`On April 9, 2019, a grand jury returned a superseding
`
`indictment in the government's case against Sidoo that named as
`
`codefendants eighteen parents from the complaint who had not
`
`entered plea agreements, including Abdelaziz and Wilson. The
`
`- 22 -
`
`
`
`government superseded this indictment twice more in the following
`
`months. During this period, four more parents pleaded guilty
`
`without written plea agreements.
`
`The operative fourth superseding indictment in this
`
`case, returned on January 14, 2020, charged fifteen parents with
`
`an overlapping set of offenses. All fifteen defendants were
`
`charged with conspiracy to commit mail and wire fraud and honest
`
`services mail and wire fraud. See 18 U.S.C. §§ 1341, 1343, 1346,
`
`1349. This count alleged an overarching conspiracy among the
`
`defendants and others, including Singer, to defraud two
`
`standardized test firms and five universities -- Georgetown;
`
`Harvard; Stanford; the University of California, Los Angeles
`
`("UCLA"); and USC -- in two alternative ways: first, by depriving
`
`them of property in the form of "standardized tests and test
`
`scores" (for the standardized test companies) and "admission to
`
`the [u]niversities" (for the universities), and second, by
`
`depriving them of the honest services of their employees through
`
`the use of "bribes and kickbacks." Notably, although the
`
`indictment contained detailed allegations of fraud related to
`
`standardized testing with respect to several other defendants, it
`
`did not allege that either Abdelaziz or Wilson had engaged in or
`
`even been aware of that form of misconduct.
`
`
`
`Eleven parents, including both Abdelaziz and Wilson,
`
`were also charged with conspiracy to commit federal programs
`
`- 23 -
`
`
`
`bribery. See id. §§ 371, 666(a)(2). The indictment
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