Clarifying Bribery vs. Honest Services Fraud: University-Account Payments Excluded under §1346 and §666 Conspiracy Liability Reaffirmed

Introduction

United States v. Vavic is a First Circuit decision issued May 30, 2025, arising from the infamous “Varsity Blues” college-admissions scandal. Jovan Vavic, long‐time head coach of USC’s men’s and women’s water polo teams, was indicted for his role in a scheme by college consultant Rick Singer to admit unqualified students as fake athletic recruits in exchange for payments routed through Singer’s entities. A jury convicted Vavic on three counts: (1) conspiracy to commit honest services mail and wire fraud (18 U.S.C. § 1349), (2) conspiracy to commit federal programs bribery (18 U.S.C. § 371/§ 666), and (3) substantive honest services wire fraud (18 U.S.C. §§ 1343, 1346). The district court granted a new trial on all counts, finding prejudicial prosecutorial misconduct in rebuttal argument. The government appealed Counts Three and Sixteen.

Summary of the Judgment

The First Circuit divided the appeal into two parts:

Count Sixteen (substantive honest services wire fraud): The court held that, after its intervening decision in United States v. Abdelaziz (1st Cir. 2023), payments to USC accounts no longer qualify as “bribes” under § 1346. The jury instructions had allowed conviction on two alternative bribery theories—tuition payments for Vavic’s sons (valid) and payments to the USC water polo account (now invalid). Because the jury returned a general verdict, it was impossible to determine which theory it relied on. This Yates error requires a new trial under harmless‐error analysis.
Count Three (conspiracy to violate 18 U.S.C. § 666): The court reversed the district court’s new trial order. Under plain‐error review, the government’s limited misstatements of fact in rebuttal did not prejudice Vavic’s substantial rights. The record also contains no Napue due‐process violation from admitting Rick Singer’s false statements, and there was no prejudicial variance in proving a USC-specific bribery conspiracy.

Analysis

1. Precedents Cited

United States v. Skilling (561 U.S. 358, 2010) – Defined honest services fraud under § 1346 as limited to bribe-and-kickback schemes, excluding mere undisclosed self-dealing.
United States v. Abdelaziz (1st Cir. 2023) – Held payments to university accounts (the alleged “victims”) cannot constitute bribes under § 1346, but may support § 666 federal-programs bribery charges.
Yates v. United States (354 U.S. 298, 1957) – Error requiring new trial when jury instructions authorize conviction on an invalid legal theory and the verdict is general.
Napue v. Illinois (360 U.S. 264, 1959) and Giglio v. United States (405 U.S. 150, 1972) – Government may not knowingly use or fail to correct false testimony.
United States v. Canty (37 F.4th 775, 2022) – Plain‐error framework for unpreserved objections to prosecutorial misconduct.
United States v. Falcón-Nieves (79 F.4th 116, 2023) – Prejudicial variance doctrine in conspiracy cases; hub-and-spoke analysis.

2. Legal Reasoning

a. Honest Services Fraud (§1346) and the Yates Error

After Skilling, § 1346 covers only bribe-and-kickback schemes, not mere self-dealing. Abdelaziz cemented that payments to the allegedly defrauded principal (here USC) fall outside § 1346’s scope. The district court’s jury instructions nonetheless allowed conviction under two alternative bribery theories: personal tuition payments (valid) and USC water-polo account donations (invalid). The jury returned a general guilty verdict. Under Yates, when a jury is instructed on both valid and invalid alternatives, and we cannot tell which theory it applied, reversal is required. The government failed to show beyond a reasonable doubt that the jury necessarily relied on the valid tuition-payment theory alone. Accordingly, the conviction for honest services wire fraud must be set aside and retried.

b. Federal Programs Bribery (§ 666) and Plain-Error Review

Federal programs bribery under § 666(a)(1)(B) requires an agent of a federally funded organization to corruptly solicit or accept “anything of value” with intent to influence a business transaction of at least $5,000. The district court concluded the government misstated the law in rebuttal by suggesting that any misrepresentation plus payment to a team account automatically meets the “contrary to the university’s interest” test. On appeal, the First Circuit held that statements emphasizing that payments were for the coach’s own program and against USC’s interest directly tracked the jury instructions for § 666, so no legal error occurred.

The court did find two isolated factual misstatements—that Vavic agreed to recruit Agustina Huneeus for $100,000—but under Canty’s plain-error standard the government’s inadvertent error did not “poison the well.” The statements were brief, the trial judge gave standard curative instructions, the evidence of a quid-pro quo was overwhelming, and the misstatements were neither deliberate nor central to Vavic’s defense.

c. Admitting Rick Singer’s False Statements and Napue

The government introduced segments of a wiretapped call in which Singer made demonstrably false claims about subsidizing coach salaries and placing staff on his payroll. The district court feared juror confusion and vacated the verdict. On appeal, the court found no Napue violation because (1) defense counsel affirmatively declined redaction and requested a real-time airing of Singer’s falsehoods to highlight Singer’s lack of credibility, and (2) the government immediately elicited FBI and forensic-auditor testimony impeaching each lie. The government never relied on Singer’s false statements in closing, and no prejudice to Vavic’s substantial rights resulted.

d. Prejudicial Variance and Retroactive Misjoinder

Vavic argued that the government proved multiple narrow conspiracies rather than the broad nationwide scheme charged in Count Two and the USC-only scheme in Count Three. The First Circuit held that, as to Count Three (the USC conspiracy), the evidence amply supported a hub-and-spoke conspiracy among Singer, Vavic, and USC administrator Donna Heinel: they shared the common goal of admitting side-door recruits, depended on each other to present candidates to Subco, and overlapped in key transactions. No variance occurred.

Vavic also contended that spillover from the vacated Count Two conspiracy required vacating Count Three. The court treated this as a retroactive misjoinder issue and deemed it forfeited for failure to develop argument or invoke the proper test for pervasive prejudice.

3. Impact

Honest Services Fraud Narrowed: Section 1346 no longer reaches payments to the very entity allegedly defrauded. After Abdelaziz and Vavic, prosecutors must confine honest services fraud charges to classic bribe-and-kickback facts.
Reinforced § 666 Prosecutions: Federal programs bribery (§ 666) remains a powerful tool against university officials who funnel donations in exchange for admissions. The decision clarifies that payments to beneficiary accounts can constitute bribes under § 666.
Jury Instructions Caution: When multiple bribery theories are offered, courts must carefully tailor instructions to avoid Yates‐based reversals. General verdict forms pose a risk when one theory might be invalid.
Defense Strategy on False Testimony: Affirmative acceptance of potentially false statements, coupled with immediate impeachment, limits Napue‐driven retrial risk.
Conspiracy Proof Standards: The hub-and-spoke analysis for conspiracies remains a pragmatic, fact-intensive inquiry focusing on common goals, interdependence, and overlap.

Complex Concepts Simplified

Honest Services Fraud (§ 1346): A federal crime targeting public or private employees who take bribes or kickbacks in violation of their duty to provide “honest services.” Skilling clarified that undisclosed self-dealing alone is not enough.
Federal Programs Bribery (§ 666): Criminalizes an agent of a federally funded organization corruptly soliciting or accepting anything of value to influence the organization’s actions when the total transaction involves at least $5,000.
Yates Error: Occurs when a jury is instructed on multiple, alternative legal theories and one theory is invalid. If the jury verdict is general, you cannot tell which theory it used, requiring reversal unless harmless beyond a reasonable doubt.
Plain‐Error Review: Applies when a defendant fails to object at trial. The appeals court will correct only clear or obvious errors that affect substantial rights and undermine the fairness or integrity of the proceeding.
Napue Doctrine: The government may not knowingly use false evidence or allow false testimony to go uncorrected. If a reasonable likelihood exists that the jury was influenced by the false evidence, due process is violated.
Prejudicial Variance / Retroactive Misjoinder: A variance between the conspiracy charged in the indictment and the conspiracy proved at trial can warrant reversal if it deprives the defendant of fair notice or prejudices the defense. If one conspiracy count is vacated, evidence from that count may not spill over to contaminate other counts.

Conclusion

United States v. Vavic clarifies the post-Abdelaziz landscape for honest services fraud, excluding university-account payments from § 1346 while reaffirming the strength of federal programs bribery (§ 666) prosecutions. It underscores the need for precise jury instructions when multiple bribery theories coexist, and it illustrates how defense strategy and immediate impeachment can mitigate due-process concerns arising from false co-conspirator statements. This decision will guide both prosecutors and courts in shaping future college-admissions and public-corruption cases.