United States Court of Appeals

For the First Circuit

No. 21-1421

UNITED STATES OF AMERICA,

Appellee,

v.

WILLIAM McGLASHAN, JR.,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Gelpí, Howard, and Thompson,

Circuit Judges.

Carter G. Phillips, with whom Jack W. Pirozzolo, Daniel J. 

Feith, John L. Gibbons, Sidley Austin LLP, John C. Hueston, and 

Hueston Hennigan LLP were on brief, for appellant.

Alexia R. De Vincentis, Assistant United States Attorney, 

with whom Nathaniel R. Mendell, Acting United States Attorney, was 

on brief, for appellee.

August 14, 2023

 
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HOWARD, Circuit Judge. In this appeal involving the 

scope of the federal wire fraud statute, 18 U.S.C. § 1343, 

defendant-appellant William McGlashan, Jr., argues in part that 

the indictment against him should have been dismissed for aiming 

at a property interest that was not the object of his fraud. We, 

however, conclude that the relevant property alleged in the 

indictment was indeed an object of his fraud, and McGlashan's other 

arguments either are superfluous to our decision or have been 

waived. We therefore affirm the judgment of the district court.

I.

We briefly summarize the factual background and 

procedural posture of the case, as relevant to McGlashan's appeal. 

"Ordinarily, because this appeal follows a guilty plea, we would 

derive the facts from the plea agreement, the change-of-plea 

colloquy, the unchallenged portions of the presentence 

investigation report, and the sentencing hearing transcript." 

United States v. Parigian, 824 F.3d 5, 8 (1st Cir. 2016); see also 

United States v. Díaz-Rivera, 957 F.3d 20, 22 (1st Cir. 2020). 

However, "because [McGlashan's] appeal trains solely on the legal 

adequacy of the challenged superseding indictment, we focus our 

review within th[at] indictment's four corners." Parigian, 824 

F.3d at 8.
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A.

Along with fourteen other parents, McGlashan was named 

as a defendant in an indictment that resulted from "Operation 

Varsity Blues" (the "Operation"), an investigation into alleged 

fraudulent schemes designed to secure the defendants' children's 

admission to elite universities throughout the United States. As 

is most relevant to this appeal, McGlashan's involvement in the 

scheme charged in this case boils down to paying $50,000 to have 

an ACT proctor change his son's test answers in order to increase 

his son's ACT score.1

The ACT exam is a "standardized test that is widely used 

as part of the college admissions process in the United States," 

and is run by ACT, Inc. ("ACT"), an Iowa-based nonprofit 

organization. As noted in the indictment, "[m]ost selective 

colleges and universities in the United States require prospective 

students to submit standardized test scores . . . as part of their 

application packages," and these "scores are a material part of 

the admissions process." The ACT exam is administered by proctors 

who the indictment alleges "are agents of ACT[, 

Inc.][,] . . . [who] owe a duty of honest services to th[at] 

1 The indictment also alleges that McGlashan participated in 

a scheme to falsify his son's athletic credentials in an attempt 

to have him admitted to the University of Southern California 

("USC") as a "purported football recruit." However, this scheme 

is not at issue in the instant appeal because McGlashan only 

pleaded guilty to the ACT-related fraud.
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organization[]." Before administering the exam, the proctors

"must typically certify" that they will abide by the ACT 

Administration Manual and "ensure that 'the test materials are 

kept secure and confidential, used [by each] examinee only, and 

returned to ACT immediately after testing.'" The exam is 

"typically administered to large groups of students on specified 

dates and under strict time limits," but "students with certain 

learning or other disabilities may qualify for testing 

accommodations, . . . and, in such circumstances, may take the 

test alone, under the supervision of a test administrator retained 

by ACT, Inc. . . . ."

The indictment alleges that McGlashan agreed in fall 

2017 to direct $50,000 to a nonprofit corporation founded by 

William "Rick" Singer -- the principal organizer of the schemes 

implicated in the Operation -- as a "purported donation" in 

exchange for Singer arranging for a test proctor who would correct 

his son's exam answers. Singer instructed McGlashan to send a 

"Request for Arranged Testing" form to ACT, so that McGlashan's 

son would take the exam at a school in West Hollywood, California, 

rather than at his own high school. Having McGlashan's son take 

the ACT exam at the West Hollywood school was crucial to the plan, 

since it is alleged that Singer "bribed" Igor Dvorskiy -- the 

director of the school and "a compensated standardized test 

administrator for ACT, Inc." -- to allow a proctor to correct
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McGlashan's son's test answers. Singer did so by "caus[ing]" the 

same nonprofit to which McGlashan had directed the $50,000 to pay 

both Dvorskiy and the proctor for their role in "facilitating [the] 

cheating."

All went to plan, at least initially. McGlashan's son 

took the ACT exam at the West Hollywood school on December 9, 2017, 

and the test proctor duly corrected his answers thereafter. 

Dvorskiy sent the exam materials to ACT's Iowa headquarters several 

days later via Federal Express. Singer then paid Dvorskiy $40,000 

and the proctor $35,000 through the above-mentioned nonprofit

later that month for their respective services "for McGlashan's 

son and other students." After his son's ACT score was released 

in early January, McGlashan texted Singer that "[y]ou have a very 

relieved and motivated young man! Very grateful." The score was 

ultimately sent to several colleges -- including Northeastern 

University, located in Massachusetts -- on October 24, 2018.

B.

On January 14, 2020, a grand jury sitting in the District 

of Massachusetts charged McGlashan in the Fourth Superseding 

Indictment -- the operative indictment in this appeal -- with (1) 

conspiracy to commit mail and wire fraud, in violation of 18 U.S.C. 

§ 1349 (Count One); (2) conspiracy to commit federal programs 

bribery prohibited by 18 U.S.C. § 666(a)(2), in violation of 18 

U.S.C. § 371 (Count Two); (3) money laundering conspiracy, in 
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violation of 18 U.S.C. § 1956(h) (Count Three); and (4) wire fraud

and honest services wire fraud, and aiding and abetting the same, 

in violation of 18 U.S.C. §§ 1343, 1346, and 2 (Count Seven).

Count Seven specifically alleges -- as is most relevant to this 

appeal -- that McGlashan:

having devised and intending to devise a 

scheme and artifice to defraud and for 

obtaining money and property, to wit, 

ACT . . . standardized tests and test 

scores, . . . by means of materially false and 

fraudulent pretenses, representations, and 

promises, and to defraud and deprive [] ACT, 

Inc., . . . of [its] right to the honest and 

faithful services of [its] test 

administrators . . . through bribes and 

kickbacks, did transmit and cause to be 

transmitted, by means of wire communications 

in interstate and foreign commerce, writings, 

signs, signals, pictures and sounds for the 

purpose of executing the scheme to defraud[:]

[the "ACT scores sent to Northeastern 

University" on or around October 24, 2018].

Thus, in Count Seven, the indictment alleges that McGlashan

participated in a fraudulent scheme to obtain tests and test scores 

from ACT, and that, through bribes and kickbacks, he sought to 

deprive ACT of the "honest services" of its test administrators.

In moving to dismiss Count Seven, McGlashan advanced 

three arguments related to the allegations of fraud against ACT: 

(1) ACT test scores cannot constitute "money or property" under 

the wire fraud statute, because they do not constitute items that 

have "long been recognized as property," Carpenter v. United 
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States, 484 U.S. 19, 26 (1987); (2) the indictment did not 

adequately allege a scheme to obtain standardized tests; and (3) 

the indictment's description of Dvorskiy's responsibilities as an 

ACT test administrator did not give rise to a fiduciary 

relationship for purposes of the honest-services theory. The 

district court denied his motion.

McGlashan ultimately entered a conditional guilty plea

to Count Seven on February 10, 2021. His plea agreement stipulated 

that he pleaded guilty to that count "insofar as [it] charges a 

scheme and artifice to defraud ACT, Inc., of standardized tests 

and test scores, and of its right to the honest and faithful 

services of its test administrators." Nevertheless, the plea 

agreement preserved McGlashan's right to appeal the denial of his 

motion to dismiss the indictment based on the following arguments:

[F]irst, that test scores cannot, as a matter 

of law, constitute property for purposes of 

the mail or wire fraud statutes, and that, to 

the extent that standardized tests might be 

considered property under the mail or wire 

fraud statutes, the indictment did not 

adequately allege facts establishing a scheme 

to fraudulently obtain standardized tests in 

this case; and second, that the indictment did 

not adequately allege facts establishing that 

test administrators owed a fiduciary duty to 

testing companies in this case.

The agreement allows McGlashan to withdraw his guilty plea should

his appeal succeed. This appeal followed.
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II.

"In reviewing a district court's denial of a motion to 

dismiss an indictment, we review legal questions de novo, any 

relevant factual findings for clear error, and the court's 

'ultimate ruling' for abuse of discretion." Parigian, 824 F.3d at 

9 (quoting United States v. Doe, 741 F.3d 217, 226 (1st Cir. 

2013)). Whether the facts put forth in an indictment suffice to 

allege a federal crime is a question of law that we review de novo. 

See United States v. Brissette, 919 F.3d 670, 676 (1st Cir. 2019) 

("'Because the district court's ruling was a legal determination 

based on its interpretation of [a federal criminal statute] and 

relevant case law,' we proceed to 'reviewing the District Court's 

conclusion de novo.'" (cleaned up) (first quoting United States v. 

Hall, 20 F.3d 1084, 1088 (10th Cir. 1994), then quoting United 

States v. Musso, 914 F.3d 26, 30 (1st Cir. 2019))). 

As earlier observed, Count Seven charges a scheme 

incorporating two theories of wire fraud: (1) a scheme and artifice 

to defraud ACT of its test and test scores under 18 U.S.C. § 1343,

and (2) a scheme or artifice to deprive ACT of its right to the 

honest services of its test administrators under 18 U.S.C. § 1346. 

We need only find one of these theories valid to affirm the 

judgment of the district court. Cf. United States v. Abdelaziz, 

68 F.4th 1, 26 n.14 (1st Cir. 2023) ("[W]hen the government has 

advanced several alternate theories of guilt and the trial court 
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has submitted the case to the jury on that basis, an ensuing 

conviction may stand as long as the evidence suffices to support 

any one of the submitted theories." (quoting United States v.

Celestin, 612 F.3d 14, 24 (1st Cir. 2010))); United States v. 

Ayala, 289 F.3d 16, 22 (1st Cir. 2002) ("[C]onvictions generally 

have been sustained as long as the proof upon which they are based 

corresponds to an offense that was clearly set out in the 

indictment. A part of the indictment unnecessary to and 

independent of the allegations of the offense proved may normally 

be treated as a useless averment that may be ignored." (quoting 

United States v. Miller, 471 U.S. 130, 136 (1985))).

III.

McGlashan's challenge to the indictment's first wire 

fraud theory rests on two grounds. First, he contends that ACT 

scores cannot constitute "money or property" for purposes of the 

wire fraud statute. Second, he asserts that the indictment does 

not adequately allege a scheme having the object of obtaining 

standardized tests. In challenging the second theory, he argues 

that "informal" fiduciary relationships of the variety that the 

indictment alleges Dvorskiy had with ACT do not suffice for the 

purposes of honest services wire fraud. As noted above, if any of 

the grounds advanced by McGlashan fails, then the indictment is 

legally sufficient and the conviction stands. We therefore bypass 

the challenge based on the argument that ACT scores are not 
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"property" as contemplated by the statute and train our analysis 

on the more straightforward issues of whether attaining ACT 

standardized tests is adequately alleged as a legally sufficient 

object of the scheme and whether a cognizable fiduciary 

relationship has been alleged.2

A.

The federal wire fraud statute prohibits "any scheme or 

artifice to defraud, or for obtaining money or property by means 

of false or fraudulent pretenses, representations, or promises" 

through interstate or foreign wires. 18 U.S.C. § 1343. In order 

to prove a violation of the statute, the government must show "(1) 

a scheme or artifice to defraud using false or fraudulent 

pretenses; (2) the defendant's knowing and willing participation 

in the scheme or artifice with the intent to defraud; and (3) the 

use of the interstate wires in furtherance of the scheme." United 

States v. Pena, 910 F.3d 591, 596 (1st Cir. 2018) (quoting United 

States v. Appolon, 715 F.3d 362, 367 (1st Cir. 2013)). In 

2 We also opt not to address McGlashan's first argument in 

recognition of the fact that the legal landscape with regard to

the scope of property rights protected by the wire fraud statute

has significantly changed since the parties addressed the issue in 

their briefing to us, most notably through the Supreme Court's 

decision in Ciminelli v. United States, 143 S. Ct. 1121 (2023), 

and our own court's decision in Abdelaziz. See also PDK Lab'ys, 

Inc. v. U.S. Drug Enf't Admin., 362 F.3d 786, 799 (D.C. Cir. 2004) 

(Roberts, J., concurring) ("[T]he cardinal principle of judicial 

restraint -- if it is not necessary to decide more, it is necessary 

not to decide more -- counsels us to go no further.").
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addition, despite the statute's use of the disjunctive "or" between 

the phrases "any scheme or artifice to defraud" and "for obtaining 

money or property," the Supreme Court has "[c]onstru[ed] that 

disjunctive phrase as a unitary whole" and "held that 'the moneyor-property requirement of the latter phrase' also limits the 

former." Kelly v. United States, 140 S. Ct. 1565, 1571 (2020) 

(quoting McNally v. United States, 483 U.S. 350, 358 (1987), 

superseded by statute as recognized in Percoco v. United States, 

143 S. Ct. 1130, 1136 (2023)). "The wire fraud statute thus 

prohibits only deceptive 'schemes to deprive [the victim of] money 

or property.'" Id. (alteration in original) (quoting McNally, 483 

U.S. at 356).

McGlashan contends that the indictment did not 

adequately allege a scheme to defraud ACT of its standardized 

tests. Relying on Kelly, he submits that the exam was a "mere 

implementation cost" of his scheme, and not an "object of the 

fraud."

In Kelly, the Supreme Court reversed the wire fraud 

convictions of New Jersey public officials who -- in a scandal 

commonly known as "Bridgegate" -- aimed to punish the mayor of 

Fort Lee, New Jersey, "for refusing to support the New Jersey 

Governor's reelection bid" by reducing the number of lanes of the 

George Washington Bridge dedicated to traffic from Fort Lee from 

three to one. Kelly, 140 S. Ct. at 1568, 1570. The scheme 
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necessitated hiring backup toll collectors who could operate a

toll booth during the on-duty collector's breaks, in order to 

ensure that the single remaining lane would remain continuously 

open. Id. at 1570. The officials also concocted a traffic study 

to cover up the scheme; this study required the hiring of traffic 

engineers. Id. The government's wire fraud theory was predicated 

in part on the idea that the "defendants aimed to deprive the Port 

Authority [of New York and New Jersey (i.e., the government agency 

in charge of the bridge)] of the costs of compensating the traffic 

engineers and back-up toll collectors who performed work relating 

to the lane realignment." Id. at 1572. A unanimous Court rejected

this theory, since "property must play more than some bit part in 

a scheme: it must be an 'object of the fraud.' . . . [A] property 

fraud conviction cannot stand when the loss to the victim is only 

an incidental byproduct of the scheme." Id. at 1573 (quoting 

Pasquantino v. United States, 544 U.S. 349, 355 (2005)). The Court 

found that the "time and labor" of the engineers and backup toll 

collector did not constitute an object of the fraud, because 

"[n]either defendant sought to obtain the services that the[se]

employees provided"; they "did nothing [the defendants] thought 

useful." Id. at 1573-74. The Court explicitly held so with 

federalism concerns in mind: 

Every regulatory decision . . . requires the 

use of some employee labor. But that does not 

mean every scheme to alter a regulation has 
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that labor as its object. . . . To rule 

otherwise would undercut this Court's oftrepeated instruction: Federal prosecutors may 

not use property fraud statutes to "set[] 

standards of disclosure and good government 

for local and state officials."

Id. at 1574 (alteration in original) (quoting McNally, 483 U.S. at 

360).

McGlashan urges us to find that obtaining the ACT score 

was the sole object of his scheme, to the exclusion of the ACT 

exam itself. He points to the indictment's allegation that one of 

the "principal purposes" of the scheme was "securing the admission 

of the defendants' children to selective colleges using 

fraudulently obtained test scores" to support his claim. In his 

view, much like the extra toll collectors and engineers' time and 

labor in Kelly, gaining access to the ACT test was "'needed' to 

realize the final plan" but ultimately a mere "implementation 

cost[]" of the scheme. Id. at 1574. He posits that he "was 

indifferent to obtaining the ACT exam as such," and points out 

that his son could have simply accessed the test at his high 

school.

We find McGlashan's arguments unpersuasive, and agree 

with the government that they "suffer[] from two fundamental 

flaws." First, as the Second Circuit has concluded, "[d]efendants 

may have . . . multiple objectives, but property need only be 'an

object' of their scheme, not the sole or primary goal." United 
- 14 -

States v. Gatto, 986 F.3d 104, 116 (2d Cir. 2021) (emphasis in 

original) (quoting Kelly, 140 S. Ct. at 1572). Second, and perhaps 

more importantly, McGlashan's arguments also inappropriately 

downplay the Kelly Court's emphasis on what the defendant "sought" 

in differentiating objects of the fraud from "incidental 

byproduct[s]" or mere "implementation costs[.]" Kelly, 140 S. Ct. 

at 1574.

Mindful of these precepts, and employing the same 

holistic analysis that the Supreme Court used in Kelly (as 

McGlashan concedes) to parse the objects of his scheme, we are 

left with little doubt that the indictment adequately alleges that 

the ACT test was an object of the fraud. Kelly, 140 S. Ct. at 

1574. The indictment provides ample evidence to support the 

proposition that McGlashan actively sought to obtain the ACT test 

in the way Singer had devised, and not just the scores. To that 

end, the $50,000 that he spent for the scheme covered not only the 

cost of increasing the test score, but -- just as crucially -- the 

cost of ensuring that the right proctor (namely, one who would be 

willing to facilitate the cheating) would both administer and then 

access the exam materials themselves. It was that need that 

underpinned the payment to Singer -- indeed, the indictment points 

to the fact that the invoice that Singer's accountant emailed

McGlashan for the $50,000 explicitly said it was "[r]egarding [the 

West Hollywood Testing Center][.]" Had the "entire point" of the 
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scheme been merely to increase his son's test scores, McGlashan 

could have, for example, simply paid Singer to forge a score report 

or even hack the ACT website to change the report. Kelly, 140 S. 

Ct. at 1573. Such a plan might not have even required McGlashan's 

son to take the exam. 

But McGlashan's plan proved much more intricate than 

merely tampering with the scores. Rather, the "entire point" of 

the plan -- the "alternative strategy," as the indictment notes 

McGlashan told "a counselor at his son's high school" -- was to 

pay for a proctor to access the exam materials in order to change 

McGlashan's son's test answers, which in turn would increase his 

son's test score. This scenario is easily distinguishable from 

the traffic study in Kelly, which the Court explicitly noted was 

"a cover story" meant to provide a pretext for the political 

retribution behind the lane closures, or the extra toll collectors, 

who one of the defendants "joked would just 'sit there and wait.'"

Kelly, 140 S. Ct. at 1574. Here, by contrast, obtaining the ACT 

exam in the manner Singer had devised was not pretextual, but 

rather was a core service for which McGlashan paid tens of 

thousands of dollars. McGlashan was thus far from indifferent 

toward obtaining the test itself; as alleged in the indictment, 

doing so was not "some bit part in [the] scheme" at which he did 

not aim. Kelly, 140 S. Ct. at 1573; see also Gatto, 986 F.3d at 

116 (noting in regards to a plan to conceal payments to college 
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athletic recruits such that they would remain eligible to compete

that "[u]nlike in Kelly, where there was a sham study and 

additional wages were paid only after the original plan was scaled 

back due to safety concerns, here, depriving Universities of 

athletic-based aid was at the center of the plan" (emphasis in 

original) (citing Kelly, 140 S. Ct. at 1574)). We therefore 

conclude that the indictment did adequately allege a scheme in 

which the ACT exam was an object of the fraud.

B.

McGlashan also argues that the indictment does not 

allege a cognizable fiduciary relationship for purposes of the 

honest services wire fraud element of Count Seven. But this 

argument is barred by the conditional plea agreement to which 

McGlashan "knowingly, voluntarily, and intelligently" agreed. 

United States v. Fernández-Santos, 856 F.3d 10, 14 (1st Cir. 2017).

"While plea agreements are a matter of criminal 

jurisprudence, most courts, including this one, have held that 

they are also subject to contract principles." United States v. 

Vizcarrondo-Casanova, 763 F.3d 89, 102 (1st Cir. 2014) (quoting 

United States v. Papaleo, 853 F.2d 16, 19 (1st Cir. 1988)). We 

construe the plea agreement according to its plain language and 

aim to "give effect to every term and phrase." United States v. 

Alegría, 192 F.3d 179, 185 (1st Cir. 1999); see also United States

v. Davis, 923 F.3d 228, 235 (1st Cir. 2019) (interpreting a plea 
- 17 -

agreement's appellate waiver according to its plain language).

Nevertheless, we "construe ambiguities in favor of allowing the 

appeal to proceed." United States v. Morales-Arroyo, 854 F.3d 

118, 120 (1st Cir. 2017).

The plea agreement's language includes a careful 

distinction between the preservation of factual and legal claims 

on appeal. As noted above, the agreement allowed McGlashan to 

appeal the district court's denial of his motion to dismiss Count 

Seven but expressly dictated that he could only make specified

arguments on appeal. See supra at 7-8. As is relevant here, the 

preserved honest services-related argument was that "the 

indictment did not adequately allege facts establishing that test 

administrators owed a fiduciary duty to testing companies in this 

case." The agreement's use of the phrase "did not adequately 

allege facts" mirrors the agreement's language concerning 

McGlashan's right to advance an argument that "the indictment did 

not adequately allege facts establishing a scheme to fraudulently 

obtain standardized tests in this case." Indeed, even though the 

object of the fraud challenge was predicated on Kelly, the argument 

that McGlashan advanced before us required an analysis of the

alleged facts of his scheme in order to assess the alleged role of 

the ACT exam. By contrast, the agreement's language preserving a 

challenge based on the meaning of property as used in the wire 

fraud statute allowed McGlashan to argue on appeal "that test 
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scores cannot, as a matter of law, constitute property for the 

purposes of the mail and wire fraud statutes." And McGlashan 

proceeded to make exactly that argument before us. We would 

therefore expect that McGlashan's honest services argument would 

be akin to his object of the fraud claim; namely, an argument that 

would primarily train on the facts set forth in the indictment and 

would thus honor the agreement's express distinction between legal 

and factual claims. Cf. United States v. Okoye, 731 F.3d 46, 49 

(1st Cir. 2013) (citing in the context of construing a waiver of 

appeal provision to Smart v. Gillette Co. Long-Term Disability 

Plan, 70 F.3d 173, 179 (1st Cir. 1995) ("Accepted canons of 

construction forbid the balkanization of contracts for 

interpretive purposes.")); United States v. Donath, 616 F.3d 80, 

84 (1st Cir. 2010) ("When enforcing the appellate waiver, we stress 

that both sides are obligated to live by the bargain they made.").3

3 McGlashan argues in response to the government's claim of 

waiver that the parties' "course of dealing" in their briefing to 

the district court about the indictment's honest-services theory 

indicates that, "read in light of the record, the plea agreement 

preserved [his] challenge" related to the scope of § 1346 on 

appeal. It is true that he, the government, and the district court

did discuss independent contractors, fiduciary duties, and those 

concepts' application to § 1346 under Skilling v. United States, 

561 U.S. 358 (2010), in various ways. But McGlashan overlooks the 

fact that our court has repeated on a number of occasions that 

"[i]f the language of an agreement 'unambiguously resolves an 

issue, that usually ends the judicial inquiry,'" United States v. 

Mejia, 55 F.4th 1, 7 (1st Cir. 2022) (quoting Alegría, 192 F.3d at 

183), and -- consequently -- we typically "look[] outside the 

document only as necessary to provide illuminating context or 

resolve ambiguities in the writing," United States v. Marchena-
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Despite this limitation in the plea agreement, on appeal 

about which fiduciary relationships the statute reaches, McGlashan 

plainly asserts a legal argument. He summarizes his argument in 

the following manner:

[T]he government's theory rests on an alleged 

informal fiduciary relationship between ACT 

and Dvorskiy, the test administrator, which 

supposedly arose from the totality of the 

circumstances of their arm's-length 

contractual agreement. Such relationships, 

however, are not cognizable under 18 U.S.C. 

§ 1346, the honest services fraud statute, 

because they fall outside the "core preMcNally applications" of the honest services 

doctrine that, per Skilling [v. United States, 

561 U.S. 358, 408 (2010)], define that 

statute's reach. The theory advanced by the 

government disregards these limits, creates 

uncertainty in all manner of business 

relationships, and, if upheld, would violate 

due process.

It is true that McGlashan does perfunctorily challenge the 

indictment's allegations that a fiduciary relationship existed

between the test administrators and ACT, characterizing the 

indictment's theory as "supposedly ar[ising] from the totality of 

Silvestre, 802 F.3d 196, 202 (1st Cir. 2015). See also Alegría, 

192 F.3d at 183 ("If, however, a plea agreement lacks clarity or 

is manifestly incomplete, the need to disambiguate may justify 

resort to supplementary evidence or other interpretive aids."). 

As illustrated above, we find no ambiguity here that would warrant 

resorting to extratextual evidence to construe the agreement. Cf.

United States v. Arroyo-Blas, 783 F.3d 361, 365 (1st Cir. 2015) 

("[A]s in contract law, we will not 'conjur[e] up an ambiguity [in 

a plea agreement] where none legitimately exists.'" (second and 

third alterations in original) (quoting United States v. Anderson, 

921 F.2d 335, 338 (1st Cir. 1990))). His course of dealing 

argument is therefore unavailing.
- 20 -

the circumstances of their arm's length contractual agreement" and 

"allegedly ar[ising] circumstantially from the parties' course of 

dealing, rather than inhering in their formal legal roles." But 

that is also where his fact-based argument ends: the honest 

services section of his appeal brief mentions "Dvorskiy" and "ACT" 

only twice each after the summary excerpted above (either by name 

or by reference), and only spends three sentences discussing the 

facts of McGlashan's case over the course of ten pages. This 

presentation of his argument does not invite us to consider whether 

the indictment adequately alleged facts that establish a fiduciary 

relationship between the test administrators and ACT. To the 

extent that McGlashan has made a factual argument, "[w]e long have 

warned that 'issues adverted to in a perfunctory manner, 

unaccompanied by some effort at developed argumentation, are 

deemed waived.' The skeletal presentation of this argument in the 

defendant's brief 'leav[es] the court to do counsel's work' -- and 

that is not our proper province." United States v. Gonzalez, 981 

F.3d 11, 23 (1st Cir. 2020) (second alteration in original) 

(quoting United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)). 

Rather, McGlashan's argument is premised on his 

objection to the application of § 1346 to informal fiduciary 

relationships writ large. This is further evidenced by the 

position that McGlashan urges us to take in the conclusion of the 

honest services section of his brief: he calls for us to "construe 
- 21 -

the statute to reach only formal fiduciary relationships, in line 

with the core pre-McNally applications." Even with his perfunctory 

statements about Dvorskiy's relationship with ACT, we fail to 

comprehend how the argument focuses on whether the indictment 

adequately alleged facts establishing the test administrators' 

fiduciary duties to ACT. It is instead a legal argument about the 

scope of § 1346, pure and simple. As noted above, the language of 

the plea agreement plainly does not allow for legal challenges to 

the honest services theory included in Count Seven. McGlashan 

therefore waived this argument when he entered the conditional 

guilty plea agreement.

Affirmed.