United States Court of Appeals
For the First Circuit
No. 23-1508
UNITED STATES OF AMERICA,
Appellee,
v.
DANA A. PULLMAN,
Defendant, Appellant.
No. 23-1510
UNITED STATES OF AMERICA,
Appellee,
v.
ANNE M. LYNCH,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Barron, Chief Judge,
Kayatta and Aframe, Circuit Judges.
Judith Mizner, Assistant Federal Public Defender, Federal
Defender Office, District of Massachusetts, for appellant Dana A.
Pullman.
Scott P. Lopez, with whom Lawson & Weitzen, LLP was on brief,
for appellant Anne M. Lynch.
Alexia R. De Vincentis, Assistant U.S. Attorney, with whom
Joshua S. Levy, Acting U.S. Attorney, was on brief, for appellee.
June 2, 2025
KAYATTA, Circuit Judge. These consolidated appeals
arise from the convictions of Dana A. Pullman, former Massachusetts
State Police (MSP) trooper and former president of the State Police
Association of Massachusetts (the "Union"), and Anne M. Lynch,
former head of the political lobbying firm Lynch Associates, for
various federal crimes arising out of alleged kickback schemes
between the two.
Because the government concedes acquittal should have
been entered for the wire fraud convictions of both defendants and
for one count of Lynch's tax fraud convictions, we reverse the
judgment on those counts. We also find the evidence insufficient
to support Lynch's conviction for obstruction of justice by
attempting to manipulate records in response to a subpoena, and
therefore reverse on that count. Otherwise, having considered the
defendants' arguments on appeal, we affirm their convictions for
honest-services wire fraud, obstruction of justice, conspiracy to
defraud the United States, and a racketeering conspiracy. Our
reasoning follows.
I.
We begin with Pullman and Lynch's challenges to their
honest-services wire fraud convictions. In so doing, "[w]e recount
the essential facts of the case, drawn from the trial record, in
the light most favorable to the verdict." United States v.
Mubayyid, 658 F.3d 35, 41 (1st Cir. 2011).
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A.
As head of the Union, Pullman sought to resolve a
longstanding dispute with the Commonwealth of Massachusetts (the
"Commonwealth") over the payment of troopers for work done on days
off, known as the "days off lost" (DOL) grievance. As negotiations
with the Commonwealth heated up, Pullman recruited Lynch
Associates to help. At that time, Lynch owned the firm, which
also employed two of her sons, Peter and Greg D'Agostino.1 Prior
to Pullman's tenure as president, the Union had engaged Lynch
Associates for lobbying and public relations work, compensating
the firm with a total monthly retainer of $9,500. Pullman also
had a longstanding individual relationship with Lynch; they had
grown up in the same town, were friends, and had for years worked
together on lobbying matters. So, in April 2013, Pullman hired
Lynch Associates for the additional project of overseeing the
process of compiling and analyzing troopers' calendars to
calculate retroactive DOL payments, in addition to participating
in negotiations with the Commonwealth.
The terms of Lynch Associates' engagement were set forth
in a new written agreement. Under that contract, Lynch Associates
agreed to complete the project for a "fixed cost of $200,000," a
quarter of which would be paid upfront, with the remainder to be
1To avoid confusion, we refer to Greg D'Agostino as
"D'Agostino" and Peter D'Agostino by his full name.
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paid at the presentation of a final report. The contract further
provided that "any changes to th[e] agreement [would] be valid
only when agreed upon in writing and signed by both parties."
D'Agostino took the lead on Lynch Associates' work on
the DOL grievance. Per the April 2013 contract, D'Agostino
recruited temporary staff to assist with sorting through records;
trained them; and began a comprehensive review. As the work
progressed, however, its "scope and detail . . . really exceeded"
D'Agostino's and Lynch Associates' expectations. Because the
Union was seeking retroactive overtime pay for its members,
prosecuting that grievance required sorting through trash bags
full of eight years' worth of paper calendars and developing a
formula for addressing missing records.
As a result, in December 2013, D'Agostino and Lynch met
with Pullman to ask for an increase to their agreed-upon fee,
presenting him with an invoice for close to $500,000 as a revised
estimated value for their services on the DOL grievance. Pullman
pushed back on that figure, citing disagreement with the suggested
hourly rate for D'Agostino's labor. At some point later that
month, Lynch called D'Agostino to tell him that Pullman came
around -- not to the full figure Lynch Associates had requested,
but to a total fee of $350,000, up from the $200,000 originally
specified in the April 2013 contract. There was no written
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contract or documentation confirming this arrangement to pay an
increased fee.
In August 2014, the Union and the Commonwealth reached
a settlement on the DOL grievance. The Commonwealth agreed to pay
approximately $21 million in retroactive overtime pay to MSP
troopers and $9 million in days credited to troopers. The
Commonwealth also agreed to reimburse the Union for $350,000 of
its expenses incurred in the Union's pursuit of the grievance.
Notwithstanding the settlement of the Union's grievance,
Lynch Associates did not immediately receive payment for their
work on the grievance. Unbeknownst to Lynch and D'Agostino,
Pullman was experiencing pressure from Union officials not to pay
the firm more than what the April 2013 contract specified. As
Lynch Associates waited for compensation, Lynch called D'Agostino
and, according to D'Agostino's testimony at trial, "indicated [to
D'Agostino] that [Pullman] had hit her up for a check."
On October 27, 2014, the Union received the
Commonwealth's reimbursement check, as per the settlement
agreement. On November 5, Pullman visited the office of Union
Treasurer Andrew Daly, seeking a $250,000 check for Lynch
Associates. Knowing that the Union had already paid Lynch
Associates $100,000 in connection with the DOL grievance and
believing that the previously agreed-upon total sum of $200,000
was "a hell of a lot of money," Daly objected to this new payment.
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He told Pullman that the requested amount "seem[ed] like too much"
since Lynch Associates was "already on a retainer," and that it
seemed like the Union was getting "fleeced." In response to these
objections, Pullman "banged [his hand] on the desk and told [Daly]
to stop breaking his fucking balls and give him the check." Daly
testified that he had never seen Pullman act "like that" before
and that he seemed like "a different person." According to his
testimony at trial, Daly felt at the time that he "should have
minded [his] own business and just given [Pullman] the check." He
therefore did so without further protest.
The day after the encounter in Daly's office, the
$250,000 check from the Union was deposited into Lynch Associates'
bank account. A week later, Lynch took an owner's draw from Lynch
Associates' bank account for $50,000, and then cut a $20,000
personal check to Pullman's wife, which was deposited into Pullman
and his wife's joint bank account on November 12, 2014.
B.
Based on these events, Pullman and Lynch were each
convicted of one count of honest-services wire fraud. The federal
wire fraud statute criminalizes the use of wires in furtherance of
"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. § 1343. To obtain a
conviction, the government must show "the defendant's knowing and
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willing participation in a scheme or artifice to defraud with the
specific intent to defraud." United States v. Falcón-Nieves, 79
F.4th 116, 126 (1st Cir. 2023) (citation omitted). Section 1343
is supplemented by
18 U.S.C. § 1346, which specifies that the
"scheme or artifice to defraud" language in § 1343 includes "a
scheme or artifice to deprive another of the intangible right of
honest services." A classic example is a scheme to pay a bribe or
a kickback to an agent without the knowledge of the principal.
See Skilling v. United States,
561 U.S. 358, 404, 408–09 (2010).
The government's claim, in brief, is that the $20,000 paid to
Pullman's wife was just such an undisclosed bribe or kickback.
Pullman and Lynch first challenge the sufficiency of the
evidence to support their convictions for honest-services wire
fraud.2 Next, they seek a new trial on the basis of alleged errors
2 In a pair of footnotes in her opening and reply briefs,
Lynch seeks to incorporate by reference Pullman's arguments. We
allow such incorporation in a consolidated case like this one, at
least where the evidence is materially the same in the cases
against both defendants. See Fed. R. App. P. 28(i) ("In a case
involving more than one appellant or appellee, including
consolidated cases, . . . any party may adopt by reference a part
of another's brief . . . [and] reply brief[]."); United States v.
David, 940 F.2d 722, 737 (1st Cir. 1991) (requiring arguments to
be "readily transferrable from the proponent's case to the
adopter's case" in order to be incorporated). Here, the government
does not argue that Pullman's arguments do not apply to Lynch, and
as a result, we treat Pullman's arguments as applying to both.
However, we do not apply Lynch's arguments to Pullman, since he
does not request that we do so. We refer to "Pullman and Lynch"
where an argument applies to both -- even if made only in Pullman's
briefing -- and only "Lynch" where she makes an independent
argument.
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in the jury instructions for this count. Finally, Lynch separately
challenges the honest-services wire fraud statute as
unconstitutionally overbroad. We address each argument below.
1.
a.
Pullman and Lynch preserved their sufficiency-of-the-
evidence challenges below by moving for judgments of acquittal on
all counts at the close of evidence at trial and by renewing their
motions after trial. See Fed. R. Crim. P. 29(a), 29(c), 33. We
therefore review these challenges de novo. United States v. Buoi,
84 F.4th 31, 37 (1st Cir. 2023).
We affirm a district court's denial of a request for
acquittal if "a rational juror 'could find that the government
proved all the elements of the offense beyond a reasonable doubt.'"
United States v. Ramos-Baez, 86 F.4th 28, 48 (1st Cir. 2023)
(quoting United States v. Fuentes-Lopez,
994 F.3d 66, 71 (1st Cir.
2021)). In doing so, we take the evidence in the light most
favorable to the government and draw all reasonable inferences in
favor of the verdict. Fuentes-Lopez,
994 F.3d at 71. "To uphold
a conviction, the court need not believe that no verdict other
than a guilty verdict could sensibly be reached, but must only
satisfy itself that the guilty verdict finds support in 'a
plausible rendition of the record.'" United States v. Sabean,
885
F.3d 27, 46 (1st Cir. 2018) (quoting United States v. Williams,
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717 F.3d 35, 38 (1st Cir. 2013)). We may uphold a conviction based
on circumstantial evidence,
id. at 46–47, though we may not "stack
inference upon inference in order to uphold the jury's verdict,"
United States v. Guzman-Ortiz,
975 F.3d 43, 55 (1st Cir. 2020)
(citation omitted).
b.
To convict Pullman and Lynch of honest-services wire
fraud under § 1343 and § 1346, the government had to prove beyond
a reasonable doubt that (among other things) the $20,000 check
from Lynch to Pullman's wife was a bribe or a kickback. See
Percoco v. United States, 598 U.S. 319, 327–28 (2023); Kelly v.
United States,
590 U.S. 391, 398–99 (2020); see also United States
v. Abdelaziz,
68 F.4th 1, 29–33 (1st Cir. 2023) (considering
whether the government's case evidenced bribery under Skilling).
At trial, the government's case centered on the theory that Pullman
agreed to cause the Union to make good on his verbal offer of an
extra $150,000 to Lynch Associates (above the $200,000 specified
in the contract), in exchange for a payment to Pullman from Lynch.
Pullman and Lynch challenge the sufficiency of the
evidence to prove this theory. Specifically, they argue that both
bribes and kickbacks require quid pro quos, and here there were
none. The government makes no argument that a quid pro quo was
not required, so we assume, without deciding, that it was. We
therefore focus on whether the evidence was sufficient to support
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a finding beyond a reasonable doubt of a quid pro quo: an agreement
to exchange a thing of value for a favorable act or treatment of
some kind.
As a reminder, D'Agostino testified that in December
2013, Pullman and Lynch verbally agreed to increase Lynch
Associates' compensation for work on the DOL grievance negotiation
from the flat fee of $200,000 enshrined in their previous written
agreement to a total of $350,000. Without any documentation to
confirm that change (let alone the signed writing required by the
contract's terms), Lynch depended on Pullman to find a way to
secure full payment. So stood matters when Pullman "hit [Lynch]
up for a check." In this manner, the evidence at trial showed
that Pullman requested a payment when Lynch Associates had no
certain path to enforce its unwritten agreement for increased
compensation and when Pullman alone wielded the power to clear
that path. It would thus have been entirely reasonable for the
jury to infer that Pullman and Lynch reached a coda to their verbal
agreement: Pullman would deliver on the payment as agreed back in
December 2013, and in exchange, Lynch would give Pullman a cut.
See United States v. McDonough, 727 F.3d 143, 153 (1st Cir. 2013)
("[M]ost bribery agreements will be oral and informal . . . ."
(citation omitted)). This is exactly the quid pro quo the
government needed to prove. See United States v. Gracie, 731 F.3d
1, 3 (1st Cir. 2013) ("When a person with the power to do or not
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do something demands a payment from the beneficiary of the exercise
of that power as a condition for continuing to do so, the payment
is not gratuitous.").
We find Pullman's and Lynch's attempts at alternative
explanations unconvincing. Pullman explains that he was simply
"turning to his friend . . . for money . . . at a time the money
was available" to her. Pullman and Lynch also suggest that Lynch's
eventual payment to Pullman was merely a "payment made to cultivate
a business relationship, express gratitude, or curry favor." But
the jurors were not born yesterday. Given the foregoing
chronology, they could easily have concluded that Lynch caved to
the pressure and agreed to cut Pullman a check to ensure her firm
received the money. See Fuentes-Lopez, 994 F.3d at 71.
Pullman and Lynch further argue that Pullman did not
need a kickback to make the payment to Lynch Associates; he would
have done it anyway, since Lynch Associates' work was just worth
that much. But, as we have explained, as matters stood before the
$20,000 check was delivered, Lynch had neither the extra payment
nor any contractual right to compensation beyond the "fixed" fee
to which Lynch Associates had originally agreed. And the issue is
not whether Pullman should have paid the money; the issue is
whether he did so in exchange for a taste himself. See Gracie,
731 F.3d at 3.
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Lynch separately argues that even if the evidence showed
that Pullman caused the Union to pay Lynch Associates an extra
$150,000 only because they had an agreement that he would receive
a cut, this would prove the crime of extortion by fear under the
Hobbs Act rather than a quid pro quo. See 18 U.S.C.
§ 1951(a), (b)(2) (criminalizing the use of extortion to
"obstruct[], delay[], or affect[] commerce" and defining extortion
as "the obtaining of property from another, with his consent,
induced by wrongful use of actual or threatened force, violence,
or fear, or under color of official right"); United States v.
Cruzado-Laureano,
404 F.3d 470, 481 (1st Cir. 2005) (explaining
that "fear of economic loss" can support a charge of extortion by
fear under the Hobbs Act). But the contention that the facts
alleged could support one charge is typically no defense to a
conviction on another, unless the two crimes are mutually
exclusive. See United States v. Facteau, No. 15-cr-10076,
2020 WL
5517573, at *20 (D. Mass. Sept. 14, 2020) (discussing cases where
"[c]ourts have determined that convictions are mutually
exclusive"). And Lynch cites no authority for her implicit claim
that a victim of extortion cannot also be guilty of bribery. Cf.
United States v. Buffis,
867 F.3d 230, 235 n.5 (1st Cir. 2017)
(rejecting defendant's claim "that proof of bribery cannot be proof
of extortion [under color of official right] (and vice-versa)");
Evans v. United States,
504 U.S. 255, 267 n.18 (1992) (noting that
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"the modern trend of the federal courts is to hold that bribery
and extortion [under color of official right] as used in the Hobbs
Act are not mutually exclusive" (cleaned up)).
In sum, we conclude that a jury could reasonably have
found the existence of a quid pro quo arrangement between Lynch
and Pullman in which Pullman secured an additional $150,000 in
compensation for Lynch Associates in exchange for a $20,000 bribe
or kickback.3 And because defendants do not dispute that the
evidence was sufficient to show that Pullman owed a fiduciary duty
to the Union of which he was president, we can safely reject
defendants' challenges to the sufficiency of the evidence to
support the conviction under Count II for honest-services wire
fraud.
2.
Pullman and Lynch also seek a new trial on their honest-
services wire fraud convictions based on asserted flaws in the
district court's jury instructions. Specifically, they argue that
the district court incorrectly instructed the jury that Pullman
owed a fiduciary duty to the Commonwealth, enabling the jury to
return a guilty verdict for honest-services wire fraud on a legally
erroneous theory. Alternatively, they argue that these same
3 This conclusion also disposes of defendants' contention
that, absent proof of a bribe or kickback, there would have been
no evidence of a scheme to defraud.
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instructions improperly removed a fact-specific determination from
the jury.
We do not reach the merits of either argument. Instead,
as we explain below, we find that both asserted errors were
harmless beyond a reasonable doubt.
a.
Both challenges concern the requirement that the
government prove that Pullman breached his duty of "honest
services," often summarized as the common law obligations of
fiduciaries. See Skilling, 561 U.S. at 402, 407; Percoco, 598
U.S. at 329–30. At trial, the government had two theories of
Pullman's fiduciary obligations: his duties to the Union and the
Union members as its president, and his duties to the Commonwealth
as an MSP trooper. Pullman and Lynch did not contest the former;
however, they maintained throughout trial -- as they do on
appeal -- that Pullman was not a fiduciary of the Commonwealth and
indeed could not have been while negotiating the DOL grievance on
behalf of the Union against the Commonwealth.
At trial, the district court at times insinuated that
Pullman's fiduciary obligations were matters of law; at other times
it implied that they were matters of fact for the jury to find.
On the whole, we agree with the defendants that the court's remarks
collectively could be construed as instructing that Pullman owed
a fiduciary duty to the Commonwealth "under these circumstances,"
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and that the defendants preserved their objections to that
instruction. The jury's verdict form did not state whether it
found that Pullman breached any fiduciary duty to the Union, the
Commonwealth, or both -- only that both defendants were guilty of
honest-services wire fraud.
b.
Pullman and Lynch's first challenge to the fiduciary
duty instructions described above rests on the Supreme Court's
decision in Yates v. United States, 354 U.S. 298 (1957). In Yates,
the defendants were convicted of a conspiracy with two objects:
first, "to advocate and teach the duty and necessity of
overthrowing the Government," and second, "to organize, as the
Communist Party of the United States, a society of persons who so
advocate and teach."
Id. at 300. The Yates Court concluded,
however, that the latter conspiratorial purpose fell outside of
the relevant statute of limitations,
id. at 312, and that the
entire conspiracy verdict must therefore be set aside,
id. at 311–
12. In reaching that conclusion, the Court reasoned that "the
trial court's instructions . . . [were] not sufficiently clear or
specific to warrant [] drawing the inference that the jury
understood it must find an agreement extending to both" objects of
the conspiracy.
Id. at 311. In this situation, "where the verdict
is supportable on one ground, but not on another, and it is
impossible to tell which ground the jury selected," the "verdict
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[needed] to be set aside." Id. at 312; see Abdelaziz, 68 F.4th at
64–65.
Pullman and Lynch contend that the Yates Court's
teaching applies to their conviction for honest-services wire
fraud. Their argument proceeds in two parts. First, they argue
that the challenged instruction was legal error because Pullman
could not have owed a fiduciary duty to the Commonwealth while he
negotiated against it. Second, they contend that because the jury
could have convicted them on the legally erroneous theory that
Pullman owed a fiduciary duty to the Commonwealth, the entire
verdict as to honest-services wire fraud must be set aside.
We begin and end with the second step of their
argument -- assuming arguendo they are correct as to the first.
This is because Yates, which suggested automatic reversal was
warranted for errors of its kind, was decided before the Supreme
Court acknowledged that some constitutional errors at criminal
trials could be harmless. See Chapman v. California, 386 U.S. 18,
22 (1967); see also, e.g., Neder v. United States,
527 U.S. 1, 8–
15 (1999) (extending harmless-error review to a jury instruction
that erroneously omitted an element of the offense). And the Court
has since made clear that harmless-error review applies to Yates
challenges, reasoning that there is no logical distinction between
instructional errors that omit or misstate elements on one hand,
and instructional errors that, as in Yates, "aris[e] in the context
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of multiple theories of guilt" on the other. Hedgpeth v. Pulido,
555 U.S. 57, 61 (2008) (per curiam); see also Skilling,
561 U.S.
at 414 & n.46 (clarifying that harmless-error review applies to
Yates errors on both collateral review and direct appeal).
As a result, we apply harmless-error review to Pullman
and Lynch's asserted instructional error. In doing so, "we are
required to affirm the conviction," United States v. Wright, 937
F.3d 8, 30 (1st Cir. 2019), if "it appears 'beyond a reasonable
doubt that the error complained of did not contribute to the
verdict obtained,'" Neder,
527 U.S. at 15 (quoting Chapman,
386
U.S. at 24); see also United States v. Lyons,
740 F.3d 702, 714
(1st Cir. 2014) (stating that Neder applies to a Yates claim on
direct review); United States v. Zhen Zhou Wu,
711 F.3d 1, 30 (1st
Cir. 2013) (same); United States v. Galecki,
89 F.4th 713, 740–41
(9th Cir. 2023) (applying Neder to a Yates claim on direct review).
In Neder, for example, the Supreme Court considered whether the
district court's omission of an element of the defendant's tax
fraud conviction was harmless beyond a reasonable doubt.
527 U.S.
at 15. Emphasizing that the evidence presented at trial showing
the omitted element was "so overwhelming" that the defendant did
not contest that it was met, the Court concluded that the error
was harmless.
Id. at 16–17.
The evidence is just as overwhelming here. To prevail,
it suffices for the government to prove that Pullman owed and
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breached a fiduciary duty to the Union -- not to both the Union
and the Commonwealth. See, e.g., Skilling, 561 U.S. at 407
(describing the "solid core" of honest-services fraud cases as
involving offenders who violate "a fiduciary duty" (emphasis
added)). And there is no dispute that Pullman was the Union
president, that he acted as such in handling the DOL matter, and
that a union president acting as such in a union matter has
obligations that place him well within the core set of
relationships contemplated by the Court's interpretation of
§ 1346. See id. at 407 n.41 (listing the relationship between a
union official and union members as an example of an uncontested
fiduciary duty in the context of honest-services fraud).
At oral argument, counsel for Pullman seemed to intimate
that our harmless-error inquiry should always examine each element
of honest-services wire fraud to assess its Nader
overwhelmingness. But this argument is unavailing in this case,
even were it not waived for being asserted for the first time at
oral argument. See United States v. Pizarro-Berrios, 448 F.3d 1,
5 (1st Cir. 2006). Here, the government asserted only "a single
kickback scheme," such that the jury must have necessarily found
that the $20,000 check to Pullman was a kickback in order to
convict both defendants. The government's theory was that this
kickback was a breach of Pullman's fiduciary duties, whether to
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the Commonwealth or to the Union.4 And Pullman and Lynch do not
dispute that, if Pullman engaged in a kickback scheme using the
Union's funds, Pullman necessarily violated his fiduciary duty to
the Union. In short, given the overwhelming proof that Pullman
acted as president of the Union in providing Lynch with a payment
from the Union, and given the jury's necessary finding that the
redirection of part of the payment into Pullman's pocket was a
kickback, there was no danger that any instructional error caused
Pullman's conviction for honest-services wire fraud. Cf. Wright,
937 F.3d at 30 (evaluating harmlessness by examining the evidence
as to one of the government's "theor[ies] of guilt" for an element
of the crime of conviction).
In sum, beyond any reasonable doubt, Pullman owed a
fiduciary duty to the Union, and the existence of that duty fully
sufficed to satisfy any requirement that the government prove that
his relevant actions in channeling $20,000 from the Union into his
own pocket were that of a fiduciary. It therefore made no
difference whatsoever that the jurors may have been wrongly told
that Pullman was also a fiduciary of the Commonwealth.
4 As in Wright, we see no basis for concluding that the
government "forced or urged the jury to" adopt the problematic
theory of guilt, which here concerned Pullman's violation of a
fiduciary duty he owed to the Commonwealth, by substantially
emphasizing that theory over the valid theory that Pullman violated
a fiduciary duty he owed to the Union. 937 F.3d at 30 (cleaned
up). We therefore need not decide how our harmless-error analysis
would be affected had the government done so.
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c.
Pullman and Lynch also argue they are owed a new trial
because the question of whether Pullman owed a fiduciary duty to
the Commonwealth should have been left to the jury. See United
States v. Argentine, 814 F.2d 783, 788 (1st Cir. 1987) ("Undeniably
inherent in the constitutional guarantee of trial by jury is the
principle that a court may not step in and direct a finding of
contested fact in favor of the prosecution . . . ."). But our
holding of harmless error also disposes of this concern, since
defendants make no argument that the jury's factfinding role was
disturbed as to the question of Pullman's fiduciary duties to the
Union. See United States v. Rivera-Santiago, 107 F.3d 960, 965–
67 (1st Cir. 1997) (applying harmless-error review to the argument
that the district court's answer to a question from the jury
removed a factual question from the jury's purview); Argentine,
814 F.2d at 788–90 (same).
3.
As an alternative challenge to her honest-services fraud
conviction, Lynch contends that 18 U.S.C. § 1346 is
unconstitutionally vague as applied to her. But her challenge
poses a question that the Supreme Court has already taken up:
whether undisclosed self-dealing can be properly subject to
liability under § 1346. See Skilling,
561 U.S. at 409. In
Skilling, the Court resolved that question by limiting § 1346 to
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encompass only schemes for bribes or kickbacks. Id. at 410–13.
And here, Pullman and Lynch were convicted on the theory that they
participated in a scheme that involved bribes or kickbacks, a
theory that falls well within the limits of the statute as sketched
by Skilling. Lynch's challenge to her conviction, therefore,
masquerades as constitutional when it in substance takes issue
with the sufficiency of the evidence to show a kickback
scheme -- an argument we rejected above.
Lynch also argues that Skilling was wrongly decided
because it "legislated a new federal law." See 561 U.S. at 415
(Scalia, J., concurring in part and concurring in the judgment)
(asserting that the majority should have struck § 1346 down rather
than impermissibly rewriting it in order to find it
constitutional); see also Percoco, 598 U.S. at 333–38
(Gorsuch, J., concurring in the judgment) (same). But we are bound
by the majority decision in Skilling unless and until the Court
changes its mind.
For these reasons, we see no merit in Lynch's
constitutional challenge to § 1346.5
5Lynch also contends for the first time on reply that
Skilling did not resolve the question of which fiduciary duties
can support a conviction under § 1346. But she fails to advance
the necessary next step of her argument: that § 1346 did not
provide sufficient notice that Pullman's fiduciary duties, as
proven by the government, fall within its ambit. As a result,
this argument is doubly waived -- for being asserted for the first
time on reply, see Sparkle Hill, Inc. v. Interstate Mat Corp., 788
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In sum, none of Pullman's or Lynch's challenges to their
convictions for honest-services wire fraud succeed. We therefore
affirm the district court's denial of their motions for acquittal
as to those convictions.
II.
We next turn to the subject of tax fraud. Lynch and
Pullman were convicted of two counts each of tax fraud under 26
U.S.C. § 7206(2). Pullman does not challenge his tax fraud
convictions on appeal, and we address Lynch's challenges to hers
infra. But both challenge their convictions under
18 U.S.C. § 371
for conspiring to, as described in the indictment, "conceal illegal
bribes, kickbacks and other payments" for the purpose of defeating
Internal Revenue Service (IRS) tax-collection functions -- often
referred to as a Klein conspiracy. See Mubayyid,
658 F.3d at 57.
See generally United States v. Klein,
247 F.2d 908 (2d Cir. 1957).
A Klein conspiracy conviction requires the government to establish
beyond a reasonable doubt "both 'an agreement whose purpose was to
impede the IRS (the conspiracy),' and the knowing participation of
each defendant in that conspiracy."6 Mubayyid,
658 F.3d at 57
F.3d 25, 29 (1st Cir. 2015), and for underdevelopment, see United
States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990).
6 Defendants' tax fraud convictions were charged as the
necessary overt acts in furtherance of the Klein agreement, see
United States v. Frankhauser, 80 F.3d 641, 653 (1st Cir. 1996),
and defendants do not dispute this element of their Klein
conspiracy convictions on appeal.
- 23 -
(quoting United States v. Adkinson, 158 F.3d 1147, 1154 (11th Cir.
1998)).
A.
At trial, the evidence of a Klein conspiracy focused on
a series of payments from Lynch to Pullman. The first was the
$20,000 that Lynch paid to Pullman's wife in connection with the
DOL matter, discussed supra. That payment came from a $50,000
owner's draw from Lynch Associates, which Lynch later reclassified
in the firm's records as a consulting payment to Pullman's wife.
The government also presented evidence of four other payments in
sums between $5,000 and $9,000, from Lynch's personal account or
Lynch Associates' account, to either Pullman or his wife, in
connection with other business dealings. These were each
classified in the firm's books as commissions or consulting
payments.
Pullman did not report any of the above income on his
joint tax returns. At the same time, Lynch Associates did not
issue a Form 1099 to Pullman or his wife for any of the payments,
despite, when necessary, issuing such forms for payments made to
others. Thus, the IRS received no report of these payments from
either the payor or the payees.
B.
Pullman and Lynch argue that, while they each may have
committed tax fraud, there was insufficient evidence that they
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conspired to do so. But "[b]y their very nature, criminal
conspiracies are clandestine and inchoate." Id. It is a "well-
established legal principle that a conspiracy may be based on a
tacit agreement shown from an implicit working relationship."
United States v. Patrick, 248 F.3d 11, 20 (1st Cir. 2001),
overruled on other grounds by United States v. Salvador-Gutierrez,
128 F.4th 299 (1st Cir. 2025) (en banc). And here, Lynch's
repeated non-reporting and Pullman's repeated non-reporting worked
in tandem to reduce the risk that a report by either one would
have pointed the finger at the other. It is reasonable to infer
from this parallel concealment that neither Lynch nor Pullman would
have taken the risk of not reporting the payments each year absent
some assurance that the other person was also not reporting the
payments. And their long history with each other in channeling
money to Pullman enhances the plausibility of that inference. For
those reasons, the jurors had a basis to regard the tax reporting
not as two separate endeavors but as the product of mutual
coordination.
As a result, we affirm Pullman's and Lynch's convictions
for a Klein conspiracy.
III.
We next turn to Pullman and Lynch's challenge to their
convictions for obstruction of the grand jury proceedings. We
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first review the evidence for the government's case and then turn
to the parties' arguments.
A.
The following evidence was presented at trial. On
August 1, 2018, the Union received a grand jury subpoena requesting
various financial records.7 Daly took it as a sign that more would
be coming and began to prepare by collecting the Union's expense-
reimbursement records. Although he found several years' worth of
records quickly, he soon discovered that three years' worth of
records were missing. Thinking they were misplaced or lost during
a recent office renovation, Daly began a more in-depth search. He
also called Pullman to let him know that he couldn't find the
records, telling Pullman, "I'm just going to have to tell the
government that I lost them or misplaced them in the move." In
response, according to Daly's testimony at trial, Pullman asked
Daly to lie -- "Can't we just tell them we have an internal policy
to destroy them after a year?" And Daly responded, "I don't think
that's an option."
Daly had still not found the missing reimbursement
records by the time the next subpoena arrived on September 18,
2018. As Daly had predicted, that second subpoena requested, among
7 This was the second grand jury subpoena to arrive; the
first, on July 11, 2018, requested records of the Union's campaign
contributions.
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other things, expense-reimbursement records, including receipts
and debit card records. In response to the subpoena, Pullman
provided some receipts from 2018, but records from some previous
years were still missing. At that point, Pullman and Daly met to
discuss the September 18 subpoena in the Union office, and Pullman
again proposed that Daly falsely "tell them that we have an
internal policy to keep them for a year and then destroy them[.]"
And again, Daly responded, "I don't think we can do that. I think
I'd probably get charged with obstruction. I'm just going to have
to fall on my sword and say that I lost them." Daly knew it would
probably be considered obstruction to do as Pullman suggested
because he had researched the question after the first time Pullman
brought it up.
Sometime after the Union received the September 18
subpoena, Pullman also called the Union attorney in charge of
responding to the subpoenas, Leonard Kesten, and asked Kesten to
speak with Lynch. Shortly thereafter, and several days before
Pullman resigned as president of the Union, Lynch called Kesten
and asked him if he "would delay the production of the documents
contained in the subpoena because [Lynch and Pullman] were still
looking for receipts." Kesten testified at trial that this request
made him "uncomfortable" because he understood it to mean a request
for him to "hold off so that [documentation] could be put into the
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documents" prior to responding to the subpoena. Kesten refused
the request.
On October 17, 2018, Federal Bureau of Investigation
(FBI) special agents interviewed Lynch at her home in Hull,
Massachusetts. During the interview, the agents reminded Lynch
several times that lying to federal agents was a crime. They also
asked several times if Lynch had made any payments from her
personal account or from Lynch Associates' account to Pullman or
his wife. In response, Lynch stated that "she had never made any
payments" nor any "loans" to Pullman or his wife. She also stated
that she spoke with Pullman recently but had not had any
conversations with him about the federal investigation. And she
averred that Pullman had mentioned nothing about his or SPAM's
expense reports.
B.
Based on the above events, Pullman and Lynch were each
charged under the catch-all or "[o]mnibus [c]lause" of 18 U.S.C.
§ 1503(a), United States v. Aguilar,
515 U.S. 593, 598 (1995),
which criminalizes anyone who "corruptly . . . influences,
obstructs, or impedes, or endeavors to influence, obstruct, or
impede, the due administration of justice." Both defendants were
convicted on one count each for "attempting to manipulate records
required to be produced pursuant to a [sic] grand jury subpoenas."
In addition, Lynch was convicted of a separate count for "falsely
- 28 -
denying to Special Agents of the FBI and IRS that she ever made
any payments to either Pullman or his spouse" and "falsely denying
she had ever had any conversations with Pullman about the ongoing
grand jury investigation."8
1.
We focus first on Pullman and Lynch's convictions for
"attempting to manipulate records" in response to the September 18
subpoena, applying de novo review and "evaluating the evidence and
all plausible inferences therefrom in the light most favorable to
the verdict to determine whether a rational factfinder could
conclude beyond a reasonable doubt that [defendants] committed the
charged crime." United States v. Pena, 24 F.4th 46, 73 (1st Cir.
2022).
Pullman and Lynch pose two challenges to these
convictions. First, they argue that there was insufficient
evidence to show their specific intent to obstruct the grand jury
investigation beyond a reasonable doubt. Alternatively, they
argue that neither Pullman's request to Daly nor Lynch's request
to Kesten constituted an "endeavor[]" to obstruct the grand jury
proceedings under 18 U.S.C. § 1503(a). We address each in turn.
8 Pullman and Lynch were each also convicted of aiding and
abetting the obstruction of justice under 18 U.S.C. § 2, which
merged into the principal convictions at sentencing. On appeal,
Pullman and Lynch decline to raise any basis for challenging their
aiding and abetting convictions apart from the challenge to the
principal convictions.
- 29 -
a.
A conviction under the omnibus clause of § 1503(a)
requires that a defendant specifically intend to obstruct the
judicial proceeding in question. See, e.g., Aguilar, 515 U.S. at
599.9 The Supreme Court has emphasized that this element requires
a nexus to the judicial proceeding, such that a defendant's actions
have the "'natural and probable effect' of interfering with the
due administration of justice."
Id. (quoting United States v.
Wood,
6 F.3d 692, 695 (10th Cir. 1993)). Thus, in Aguilar, the
Court overturned a conviction where the defendant lied to an FBI
agent knowing of an ongoing grand jury investigation but not that
his statements would be provided to the grand jury.
Id. at 600–
01 ("[W]hat use will be made of false testimony given to an
investigating agent who has not been subpoenaed or otherwise
directed to appear before the grand jury is . . . speculative.").
Pullman and Lynch first briefly contend that Pullman's
request to Daly that the Union fabricate a document destruction
policy in response to the September 18 subpoena does not show his
intent to obstruct beyond a reasonable doubt. So, too, at oral
argument, counsel for Pullman suggested that we should interpret
Pullman's question to Daly as an inquiry about what would be
The parties do not contest the other two elements of their
9
obstruction convictions; namely, that there was a pending judicial
proceeding and that defendants had notice of that proceeding. See
United States v. Acevedo, 882 F.3d 251, 257 (1st Cir. 2018).
- 30 -
proper, not an invitation to lie. But Pullman had no need to
inquire as to whether lying to a grand jury was wrong. Jurors
could therefore easily construe the twice-made inquiry as a
proposal to lie rather than an inquiry about what was proper. And
unlike in Aguilar, here the relationship to the grand jury was
clear: Daly's testimony was that Pullman's proposal was a direct
and knowing response to a grand jury subpoena. As such, the jury
could have reasonably found that Pullman had the specific intent
necessary to convict him of obstruction.
The evidence to show Lynch's intent to obstruct is a
different matter. At trial, the only evidence as to her intent to
obstruct the production of documents was testimony about her phone
call to the Union attorney Kesten, in which she asked him to "delay
the production of the documents contained in the subpoena because
[defendants] were still looking for receipts" and told him "that
she was going to assist [Pullman] in getting his receipts."
Without evidence that Lynch knew what was in the records or why
Pullman wanted more time, her request to delay production in order
to help Pullman find receipts is not itself nefarious -- especially
in light of an FBI agent's testimony that rolling productions were
not uncommon and Kesten's testimony that other Union officials
were in the process of gathering documents in response to the
subpoena. Moreover, the subpoena itself asks only for "[e]xpense
reimbursement records including requests, supporting documents,
- 31 -
receipts and proofs of purchases"; it does not distinguish between
records kept in the ordinary course of business and records Pullman
may have kept elsewhere, despite the fact that Kesten interpreted
it to do so. We therefore conclude that a reasonable jury could
not have found beyond a reasonable doubt that Lynch had the
requisite intent to obstruct the grand jury.
b.
Pullman launches one more challenge to his obstruction
conviction, arguing that, even if he intended to manipulate records
in response to the subpoena, his actions did not rise to the level
of an "endeavor." See 18 U.S.C. § 1503(a) (prohibiting any
"corrupt[] . . . endeavor[] to influence, obstruct, or impede, the
due administration of justice"). Specifically, he argues that he
did not exert any "pressure or follow-up" on Daly when he refused
Pullman's requests to fabricate a document destruction policy.10
But Pullman mischaracterizes the meaning of "endeavor."
In Aguilar, the Supreme Court emphasized that a defendant need not
be successful in the obstruction of justice to be convicted under
the omnibus clause of § 1503(a); where a "defendant acts with an
intent to obstruct justice, and in a manner that is likely to
10 Pullman also makes the same lack-of-pressure argument
about Lynch's call to Kesten. But because we have already
concluded there was insufficient evidence to support Lynch's
conviction for obstruction based on that call, we focus here on
the evidence that Pullman asked Daly to lie.
- 32 -
obstruct justice, but is foiled in some way," they have
"endeavor[ed]" to obstruct justice. 515 U.S. at 601–02. And we
have repeatedly held that an "endeavor[]" under § 1503(a) need not
rise to the level of criminal attempt. See United States v.
Tedesco, 635 F.2d 902, 907 (1st Cir. 1980); United States v.
Lazzerini,
611 F.2d 940, 941 (1st Cir. 1979). Thus, contrary to
Pullman's argument, the requirement that a defendant "endeavor[]"
to obstruct justice does not mandate a greater degree of effort or
persistence.
Pullman also asks us to infer a repetition requirement
from our decision in Tedesco, where the defendant had suggested a
grand jury witness change his testimony in at least three separate
conversations. See 635 F.2d at 903–04. But there, we trained our
focus on rejecting the defendant's contention that he could not be
convicted of obstruction where his efforts were not explicit, and
nowhere did we suggest that the number of efforts was dispositive.
Id. at 906–07. While repetition may be relevant in distinguishing
musings from actual endeavors, it is not always required to support
a finding of an endeavor. See United States v. Acevedo,
882 F.3d
251, 256–57, 259–60 (1st Cir. 2018) (upholding a conviction under
§ 1503(a) where defendant once requested that a cooperating
witness "retract" his account); see also United States v. Roe,
529
F.2d 629, 631 (4th Cir. 1975) (same where defendant spoke on the
phone once to a juror's husband); United States v. Russell, 255
- 33 -
U.S. 138, 141–42 (1921) (upholding a conviction under § 1503(a)'s
predecessor statute where defendant spoke on the phone once to a
juror's wife).
The pivotal inquiry as framed in Aguilar is
foreseeability. See 515 U.S. at 599 (holding that a defendant
"endeavor[s]" by taking actions with the "'natural and probable
effect' of interfering with the due administration of justice"
(quoting Wood,
6 F.3d at 695)). And here, where the government's
case was that Pullman -- the president of the Union -- point blank
asked the Union's secretary to lie to the grand jury, we think it
clear that fabrication was foreseeable. This holds true regardless
of whether Daly did or did not resist the clear request.11 As
such, we hold that the jury could have fairly understood both
actions as "endeavor[s]" under Aguilar and § 1503(a).
In sum, although we reverse Lynch's conviction for
attempting to manipulate records in response to a subpoena,
Pullman's conviction for the same was proper where the evidence
was sufficient to show he "act[ed] with an intent to obstruct
justice, and in a manner that [was] likely to obstruct justice,
but [was] foiled." See id. at 601.
11 As Pullman points out, the first time he asked Daly to lie
was in response to the August 1 subpoena request, an incident that
is out of the timeframe of the indictment. But the second,
repeated request falls within the timeframe.
- 34 -
2.
Lynch was also convicted on a separate charge of
obstruction under § 1503(a) for lying to FBI agents during the
interview at her home in 2018. Her only challenge to this
conviction on appeal is an assertion of another Yates error: that
she is owed a new trial because the jury was improperly instructed
on honest-services fraud and wire fraud and therefore "relied on
unsound fraud theories . . . to reach a verdict on" the obstruction
charge.
Lynch did not make this argument before the district
court, so it is subject only to review for plain error. See United
States v. Rodríguez-Santos, 56 F.4th 206, 218–19 (1st Cir. 2022).
But in her briefs to us, Lynch proffers no plain-error analysis,
thereby waiving her argument altogether. See United States v.
Rathbun,
98 F.4th 40, 58 (1st Cir. 2024) ("[B]ecause [defendant]
does not acknowledge his failure to preserve his objection below
or provide us with a plain error analysis of his . . . argument in
his opening brief, the argument is waived, and we need say no
more."); see also United States v. Rodriguez-Monserrate, 22 F.4th
35, 40 (1st Cir. 2021) (treating an argument of procedural error
at a criminal trial that failed to articulate its status on plain-
error review as waived); United States v. Pabon,
819 F.3d 26, 33
(1st Cir. 2016) ("Pabon has waived these challenges because he has
- 35 -
not even attempted to meet his four-part burden for forfeited
claims . . . .").12
As a result, we affirm her second conviction under
§ 1503(a).
IV.
With the bulk of Pullman's and Lynch's convictions
behind us, we can now turn to the low-hanging fruit.
A.
Separately from the honest-services wire fraud
convictions for the DOL grievance payment, Pullman and Lynch were
also convicted of three counts each of wire fraud under 18 U.S.C.
§ 1343. These convictions were based on payments Lynch made to
Pullman after Pullman helped Lynch Associates secure contracts
with two companies vying for the Union's support.
Pullman and Lynch challenge the sufficiency of the
evidence for their wire fraud convictions. Alternatively, they
contend a new trial is warranted on the basis of an error of jury
instruction. However, we need not reach either of these arguments.
Although the government defended these convictions below, on
appeal, it concedes that judgments of acquittal should be entered
for all counts of wire fraud "[i]n light of the manner in which
12 Lynch makes this same Yates argument with respect to her
convictions for tax fraud. These arguments are both forfeited and
waived for the same reasons as her argument concerning her second
§ 1503(a) conviction.
- 36 -
the evidence developed at trial and post-trial developments in the
law." Following the government's lead, we reverse these
convictions.
The government also concedes acquittal is warranted for
Count D, one of Lynch's tax fraud convictions related to the above-
mentioned counts of wire fraud. We therefore also reverse Lynch's
conviction on this count.
B.
Finally, Pullman and Lynch challenge their Racketeer
Influenced and Corrupt Organizations Act (RICO) conspiracy
convictions, which are based on events already described. See 18
U.S.C. § 1962(d). Both defendants were charged with "conduct[ing]
and participat[ing] . . . [in] a pattern of racketeering activity"
consisting of the predicate acts of honest-services wire fraud,
wire fraud, and obstruction of justice. See
id. § 1961(5)
(defining a pattern of racketeering activity to include "at least
two acts of racketeering activity"); id. § 1961(1) (defining acts
of racketeering activity to include wire fraud and obstruction of
justice). Pullman and Lynch's sole argument is that their RICO
charges fail because "the evidence failed to establish that [their]
conduct constituted wire fraud or obstruction." But this
contention gets them nowhere: Even putting aside the wire fraud
convictions that the government concedes should be overturned, we
- 37 -
have already held that the evidence supports the obstruction and
honest-services wire fraud verdicts.13
As a result, Pullman and Lynch's challenge to their RICO
conspiracy convictions fails.
V.
For the reasons stated, we reverse Pullman's and Lynch's
wire fraud convictions under Counts III–V; Lynch's obstruction of
justice conviction under Count VIII; and Lynch's tax fraud
conviction under Count D. We affirm defendants' other
convictions. The case is remanded to the district court for
resentencing in light of this decision.
So ordered.
13 Pullman and Lynch raise no argument that the obstruction
and honest-services wire fraud convictions are not related or that
they do not threaten continued criminality, requirements for
predicate acts to support a RICO conviction. See H.J. Inc. v. Nw.
Bell Tel. Co., 492 U.S. 229, 239–40 (1989) (holding that two or
more predicate acts become a pattern of racketeering activity under
RICO only when they are both "related, and . . . amount to or pose
a threat of continued criminal activity"). As a result, we do not
address these issues.
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