Post-Snyder Alternative-Theory Error: Multi-Object § 371 Conspiracies and Pinkerton FCPA Convictions Must Be Vacated Absent Certainty the Jury Convicted on a Valid Object

Case: United States v. Michael McClain (Nos. 25-2349 & 25-2350)
Court: U.S. Court of Appeals for the Seventh Circuit
Date: June 15, 2026

1. Introduction

This appeal arises from the high-profile prosecution of Anne Pramaggiore (then CEO of Commonwealth Edison Company and later CEO of Exelon) and Michael F. McClain (a longtime ComEd lobbyist and political intermediary) for conduct involving then–Illinois House Speaker Michael Madigan and his associates. A jury convicted the defendants of (i) a multi-object conspiracy under 18 U.S.C. §§ 371 & 2; (ii) substantive federal-program bribery/gratuities counts under 18 U.S.C. §§ 666 & 2; and (iii) Foreign Corrupt Practices Act (“FCPA”) books-and-records counts under 15 U.S.C. §§ 78m(b)(5) & 78ff(a) and 18 U.S.C. § 2.

Two Supreme Court decisions reshaped the legal landscape after trial. Snyder v. United States, 603 U.S. 1 (2024) narrowed § 666 to quid pro quo bribery (excluding gratuities), undermining the government’s trial theory and the jury instructions. Then Thompson v. United States, 604 U.S. 408 (2025) addressed the meaning of “false” (in the context of 18 U.S.C. § 1014), which the defendants invoked to attack the “falsifying” theory under the FCPA.

The Seventh Circuit’s central task was not to reweigh the evidence, but to determine whether convictions returned on general verdicts could stand when jurors were permitted to convict on multiple theories, some of which were later rendered legally invalid.

2. Summary of the Opinion

The Seventh Circuit vacated both the defendants’ § 371 conspiracy convictions and their FCPA books-and-records convictions, and remanded. Although the government presented “significant and compelling evidence,” the jury was instructed pre-Snyder that § 666 covered gratuities as well as bribes, making two charged conspiracy objects legally invalid after Snyder.

Applying the Seventh Circuit’s harmless-error framework for alternative-theory (Yates/Skilling) errors, the court held the error was not harmless: because the verdict was general and the conspiracy objects were not “coextensive,” the court could not conclude beyond a reasonable doubt that the jury convicted on one of the remaining valid objects (FCPA falsification/circumvention).

The FCPA convictions were vacated as well because the jury received a Pinkerton v. United States, 328 U.S. 640 (1946) instruction allowing conviction based on foreseeable acts of co-conspirators. Since the existence of a legally valid conspiracy was itself uncertain after the Skilling-type error, the Pinkerton route created another alternative-theory defect.

The defendants were not entitled to acquittal. The court rejected the argument that Thompson eliminated liability because the records were “misleading but true,” emphasizing that the jury instructions required “falsified” records and that the trial evidence was sufficient for a properly instructed jury to convict. Retrial is permitted at the government’s discretion, without reliance on invalid theories.

3. Analysis

3.1. Precedents Cited

  • Snyder v. United States, 603 U.S. 1 (2024): The pivotal change in law. The opinion treats Snyder as eliminating § 666 gratuities liability, thereby invalidating the two § 666 conspiracy objects “given the way the jury was instructed.” This is the trigger for the alternative-theory (Yates/Skilling) error analysis.
  • Skilling v. United States, 561 U.S. 358 (2010): The template for handling a general verdict on a multi-object conspiracy where one object later becomes legally invalid. The Seventh Circuit characterizes the defect here as the same species of error: the jury may have convicted on an invalid object, requiring harmless-error review. (The opinion also notes United States v. Skilling, 638 F.3d 480 (5th Cir. 2011) on remand as an illustration that harmlessness can be found in some records, though it does not adopt the Fifth Circuit’s standard.)
  • Stromberg v. California, 283 U.S. 359 (1931): The constitutional root of the rule that a general verdict cannot stand if it may rest on an invalid ground.
  • Yates v. United States, 354 U.S. 298 (1957): Extends Stromberg beyond unconstitutional theories to legally flawed theories; supplies the canonical formulation: a conviction must be set aside when it is “impossible to tell” which ground the jury selected.
  • Chapman v. California, 386 U.S. 18 (1967), Satterwhite v. Texas, 486 U.S. 249 (1988), and Hedgpeth v. Pulido, 555 U.S. 57 (2008): Establish and apply the harmless-error framework to alternative-theory errors; Hedgpeth makes such errors reviewable for harmlessness, and the prosecution must show beyond a reasonable doubt that the error did not contribute to the verdict.
  • Sullivan v. Louisiana, 508 U.S. 275 (1993) and Carella v. California, 491 U.S. 263 (1989): Supply the constitutional underpinning: appellate courts cannot “speculate” about what a jury would have done; due process requires proof beyond a reasonable doubt on every element as found by an actual jury.
  • Neder v. United States, 527 U.S. 1 (1999): Provides the quoted harmless-error test—whether it appears beyond a reasonable doubt that the error did not contribute to the verdict.
  • Sorich v. United States, 709 F.3d 670 (7th Cir. 2013), United States v. Borrero, 771 F.3d 973 (7th Cir. 2014), Turner v. United States, 693 F.3d 756 (7th Cir. 2012), and United States v. Segal, 644 F.3d 364 (7th Cir. 2011): These are the Seventh Circuit’s internal guideposts for harmlessness in alternative-theory cases. Turner and Segal illustrate when harmlessness may exist (the evidence and findings are “coextensive,” making guilt “all or nothing”); Sorich articulates the “must have convicted” formulation; Borrero emphasizes that if “we just don’t know” what the jury relied upon, retrial is required.
  • United States v. Wright, 665 F.3d 560 (3d Cir. 2012), United States v. McKye, 734 F.3d 1104 (10th Cir. 2013), United States v. Holly, 488 F.3d 1298 (10th Cir. 2007), Bereano v. United States, 706 F.3d 568 (4th Cir. 2013), and United States v. Jefferson, 674 F.3d 332 (4th Cir. 2012): The court surveys the circuit split on harmlessness standards, rejecting any shift away from Seventh Circuit doctrine because the government did not ask for it.
  • Margolin v. Nat'l Ass'n of Immigr. Judges, 146 S. Ct. 1285 (2026): Used to reinforce the party-presentation principle: arguments not raised (here, asking the court to overturn its harmless-error approach) will not be considered.
  • Pinkerton v. United States, 328 U.S. 640 (1946) and United States v. Smith, 223 F.3d 554 (7th Cir. 2000): Central to vacating the FCPA counts. Pinkerton liability requires proof of a conspiracy; because the conspiracy verdict was compromised, Pinkerton became an invalid route that the jury might have used for the FCPA counts.
  • Thompson v. United States, 604 U.S. 408 (2025): The defendants’ acquittal hook. The Seventh Circuit acknowledges the argument but holds that the jury was instructed on “falsified” records (not merely misleading ones), and the record contained sufficient evidence of falsity.
  • Record/standard-of-review and retrial authorities: Cavazos v. Smith, 565 U.S. 1 (2011) (view evidence favorably to verdict), Burks v. United States, 437 U.S. 1 (1978) (retrial permitted when reversal is for trial error, not insufficiency), Shango v. Jurich, 965 F.2d 289 (7th Cir. 1992) (de novo legal review), United States v. Marchan, 935 F.3d 540 (7th Cir. 2019) (juries follow instructions), and United States v. Corrigan, 912 F.3d 422 (7th Cir. 2019) (sufficiency framing).

3.2. Legal Reasoning

(a) The conspiracy convictions: a Skilling-type error plus non-harmlessness under Seventh Circuit doctrine.
The indictment alleged four conspiracy “objects,” two tied to § 666 and two tied to the FCPA’s accounting provisions (falsifying books/records and circumventing internal controls). Because the jury was instructed under pre-Snyder law that § 666 encompassed gratuities, the jury could have convicted based on an agreement to provide gratuities rather than a quid pro quo bribe. After Snyder, that makes the § 666 objects “legally invalid,” producing a classic alternative-theory error under Stromberg/Yates/Skilling.

The decisive move is the court’s harmless-error application: the Seventh Circuit asks whether the record shows the jury must have convicted on a valid object as well. Unlike the “coextensive evidence” scenario in Turner v. United States, the court found the objects here were not overlapping such that conviction on an invalid § 666 object necessarily implied agreement on the valid FCPA objects. With only a general verdict, the court refused to “hypothesize” the jury’s path. Under United States v. Borrero, uncertainty itself defeats harmlessness.

(b) The FCPA convictions: Pinkerton makes the conspiracy defect contagious.
The government pursued the substantive FCPA counts partly through Pinkerton—allowing jurors to convict a defendant for foreseeable crimes committed by co-conspirators in furtherance of the conspiracy. But, as the court emphasized with United States v. Smith, Pinkerton requires a conspiracy. Once the conspiracy verdict is unreliable (because it may rest on invalid objects), Pinkerton becomes an invalid alternative route to convict on the substantive counts. Because the court cannot know whether the jury convicted on a direct-act theory or Pinkerton, the FCPA convictions must also be vacated.

(c) No acquittal: Thompson does not negate evidentiary sufficiency on “falsified” records.
The defendants attempted to convert Thompson into a categorical defense: if “false” excludes “misleading,” then omissions and half-truths cannot be “falsifying.” The Seventh Circuit did not have to resolve the outer boundary of “falsify” post-Thompson because the jury instructions required “falsified” records (not merely misleading ones), and the record contained evidence from which a jury could find actual falsity—e.g., amendments justifying payments with asserted work scopes that evidence suggested were unperformed, and invoices/contract documents that concealed who was doing work and what work was being done. Because a properly instructed jury could convict on that evidence, Burks v. United States leaves retrial available.

3.3. Impact

1) Post-Snyder conspiracy charging and instruction strategy in the Seventh Circuit. The decision underscores that, when a § 371 conspiracy is pleaded with multiple objects and some objects later become invalid (or are vulnerable to evolving Supreme Court doctrine), a general verdict becomes a liability for the prosecution. In practical terms, this opinion increases the value of:

  • Special verdicts (or at least interrogatories) identifying which object(s) the jury unanimously found;
  • Object-by-object instructions that force clear findings and reduce Yates/Skilling risk;
  • Trial-proof separation of evidence supporting each object, to enable a later harmlessness argument that the jury necessarily found the valid object.

2) Pinkerton as a double-edged sword. Pinkerton can expand the government’s routes to conviction, but this case illustrates the appellate vulnerability it creates when the predicate conspiracy may be compromised. Prosecutors may respond by emphasizing direct-participation proofs and crafting verdict forms/instructions that clarify whether the jury relied on Pinkerton.

3) Harmless-error standards remain circuit-dependent—and the Seventh Circuit stays strict. The opinion squarely reaffirms the Seventh Circuit’s approach (as expressed in Sorich v. United States and United States v. Borrero) rather than moving toward “overwhelming evidence” (Third Circuit) or “could rationally acquit” (Fifth Circuit) formulations. Unless and until the Supreme Court clarifies the standard, this decision signals that alternative-theory errors in the Seventh Circuit will often produce vacatur and retrial if verdict-path certainty is lacking.

4) Thompson’s reach into securities/FCPA accounting cases is left open—but not weaponized here. The court declined to treat Thompson as an automatic acquittal engine in FCPA books-and-records prosecutions, especially where instructions require “falsified” records and the evidence supports actual falsity. Future litigants will likely press for a clearer definition of “falsify” under 15 U.S.C. § 78m(b)(5), but this opinion indicates that sufficiency can be sustained where the proof goes beyond mere omission into demonstrable false statements or fabricated justifications.

4. Complex Concepts Simplified

  • Multi-object conspiracy (18 U.S.C. § 371): A single conspiracy charge can list multiple illegal “objects” (goals). A jury can convict if it unanimously finds the defendants agreed to pursue at least one illegal object.
  • General verdict vs. special verdict: A general verdict is simply “guilty” or “not guilty” and does not disclose which theory or object the jury accepted. A special verdict (or interrogatories) records the jury’s specific findings—critical when some theories later become invalid.
  • Alternative-theory error (Stromberg/Yates/Skilling error): If jurors were allowed to convict on either a valid or an invalid legal theory, and the verdict doesn’t reveal which one they used, the conviction generally cannot stand unless the court can say the error was harmless beyond a reasonable doubt.
  • Harmless error: Some legal mistakes do not require reversal if the appellate court is convinced beyond a reasonable doubt the mistake did not affect the verdict. The Seventh Circuit’s focus here is on what the jury necessarily decided, not what an appellate court thinks a reasonable jury would have done.
  • Pinkerton liability: A rule that can make one conspirator criminally responsible for certain foreseeable crimes committed by another conspirator in furtherance of the conspiracy. It depends on the existence of a legally valid conspiracy.
  • FCPA “books and records” / “internal controls” provisions: Public companies must keep accurate records and maintain internal accounting controls. Criminal liability can arise for knowingly causing records to be falsified or controls to be circumvented, even outside classic foreign-bribery fact patterns.

5. Conclusion

The Seventh Circuit’s decision is a post-Snyder roadmap for unwinding convictions obtained on general verdicts where jurors were authorized to rely on now-invalid § 666 gratuities theories. The court reaffirms a stringent, jury-centered harmless-error approach: if a conviction may rest on an invalid object and the reviewing court cannot determine that the jury necessarily convicted on a valid object, vacatur follows—even in the face of strong evidence.

The opinion also highlights a consequential procedural interaction: when substantive counts are submitted on a Pinkerton theory, defects in the conspiracy verdict can infect the substantive convictions. Finally, while acknowledging Thompson, the court refuses to convert it into an automatic bar to FCPA books-and-records prosecutions, holding that the record contained sufficient evidence of actual falsification and leaving retrial available.