United States v. Ajayi, No. 14-2183 (7th Cir. 2015)
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Ajayi, an electrical engineer, wanted to start a business selling MRI products in Africa. He incorporated GRI in Illinois and another company in Africa and sought investors. While traveling, he solicited a $45,000 investment from Brown. After returning home, Ajayi received a $344,657.84 check, payable to another company . He called Brown, who explained that the accounting department had made an error, told Ajayi to deposit the check, and stated that they would work out a way for Ajayi to refund the difference. Ajayi deposited the check through an ATM into his GRI account, which previously had a balance of $90.08, After the check cleared, Brown flew to Chicago and demanded repayment. Pursuant to Brown’s instructions, between December 9 and December 12, 2009, Ajayi wrote at least five checks to himself from the GRI account and cashed them. Ajayi was convicted of five counts of bank fraud, 18 U.S.C. 1344(1) and (2) and money laundering, 18 U.S.C. 1957(a) and was sentenced to 44 months’ imprisonment. The Seventh Circuit found that there was sufficient evidence that Ajayi knew that the check was altered and upheld the exclusion of the emails, but concluded that four bank fraud counts were multiplicitous.
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 14 2183 UNITED STATES OF AMERICA, Plaintiff Appellee, v. ABIDEMI AJAYI, Defendant Appellant. ___________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 12 CR 190 — Rebecca R. Pallmeyer, Judge. ____________________ ARGUED MAY 21, 2015 — DECIDED DECEMBER 11, 2015 ____________________ Before WOOD, Chief Judge, and ROVNER and WILLIAMS, Circuit Judges. WILLIAMS, Circuit Judge. Abidemi Ajayi deposited a $344,657.84 fraudulent check, which had originally been written to another company, into his bank account. Ajayi spent about half of the money before the bank froze his ac count. He was indicted and convicted after a jury trial of five counts of bank fraud and one count of money laundering. 2 No. 14 2183 He now appeals his conviction arguing that the evidence was insufficient to establish that he knew the check was al tered. However, we find that the evidence of his guilt, which includes all the facts and circumstances surrounding the check, was compelling and sufficient to support the convic tion. He also challenges the district court’s decision to ex clude certain emails related to his business plan to secure MRI machines because they were not related to the case. We agree with the district court and find that the emails were irrelevant because the emails had nothing to do with the fraudulent check or the person Ajayi claims sent him the check. Next, Ajayi contends that the district court erred by only submitting to the jury a portion of the pattern jury in struction that defines scheme, which would permit the jury to find him guilty without proof of misrepresentation. But, we find no error in the jury instructions because the instruc tions, reviewed as a whole, did not permit the jury to find him guilty without finding proof of misrepresentation. He also contends that the five bank fraud counts were multiplic itous. Since the four counts of bank fraud arose from Ajayi’s acts of withdrawing funds after he deposited the fraudulent check and were merely in furtherance of the bank fraud, we conclude that four bank fraud counts were multiplicitous. Therefore, we vacate four of the bank fraud convictions. Fi nally, he asserts that there was a variance or a constructive amendment between the indictment and the proof offered at trial, but this contention is without merit. I. BACKGROUND The following facts were introduced at Ajayi’s trial. Aja yi, a U.S. citizen of Nigerian descent, was an electrical engi neer, with a specific background related to magnetic reso No. 14 2183 3 nance imaging (“MRI”) machines. Ajayi wanted to start a business selling MRI products in Africa. So, he incorporated GR Icon (“GRI”) in Illinois and another company in Africa. To fund the business he sought money from private inves tors and African governments. While traveling to Cameroon in 2009, he struck up a con versation with Charles Brown, a man on the plane who was reading an issue of Scientific American that had an MRI ma chine on the cover. Ajayi introduced himself, explained he worked with MRI machines, and eventually told Brown about his business and showed him his business materials. They talked for six hours. Brown indicated that he was a venture capitalist and by the end of the conversation, he stated that he would be interested in investing $45,000. After returning home, Ajayi received an envelope from Brown with a $344,657.84 check. He called Brown to ask about the check amount. Brown explained that the account ing department had made an error, told Ajayi to deposit the check right away, and stated that they would work out a way for Ajayi to refund the difference. On November 27, 2009, Ajayi deposited the check through an automatic teller machine (“ATM”) into his GRI account. Before this deposit, the account balance was $90.08. (And during 2009, it never had an ending balance over $332.) The bank held the check for about two weeks before releasing the funds around December 8, 2009. Ajayi called Brown and told him that the check had cleared. Thereafter, Brown flew to Chicago unannounced and told Ajayi to meet him downtown. They met, and Brown demanded the differ ence between the check and the $45,000 promised. 4 No. 14 2183 Pursuant to Brown’s instructions, between December 9 and December 12, 2009, Ajayi wrote at least five checks to himself from the GRI account and cashed them. As charged in the indictment, on December 9, 2009, he wrote a $9,600 check to himself and cashed it at a Chase branch in Evans ton. The next day, he wrote a $16,500 check to himself and cashed it at a Chase branch in downtown Chicago. On De cember 11, 2009, he wrote a $17,000 check to himself and cashed it at a Chase branch just north of downtown Chicago. During that bank visit, he also made a $53,000 wire transfer from the account. On December 12, 2009, he wrote a $9,650 check to himself and cashed it at a Chase branch on the north side of Chicago. That day, he also wrote a $9,800 check to himself and cashed it at a different Chase branch on the north side of Chicago. At some point during this period, Ajayi also made retail purchases at Gap and the Apple Store. There were additional checks cashed in a similar manner that were not charged in the indictment. In total, he was able to withdraw more than $171,000 be fore the bank froze his account. The bank learned from ABM, the Texas company that issued the check, that ABM believed the check’s payee had been changed because the intended payee, Pollock, another Texas company, had con tacted ABM asking for payment. After investigating, ABM learned that the payee’s name on the check had been altered. There are no facts as to who altered the check and how it got from Texas to Illinois. Ajayi attempted to offer into evidence emails between him and individuals who would help facilitate his purchase of MRI equipment. These emails were exchanged around July 20–21, 2009, December 9–30, 2009, and January 16, 2010. No. 14 2183 5 In response to the government’s argument that Ajayi’s busi ness was not legitimate, Ajayi offered these emails to show that he was legitimately trying to enter the MRI business. The district court deemed the emails not relevant because they did not relate to the fraudulent check, the charges, or Brown. During a hearing held at the close of evidence, the gov ernment proposed pattern jury instructions, and stated that any exceptions were noted. As to the jury instruction defin ing “scheme,” the government did not use all the wording of the pattern jury instruction, and it did not contain a state ment indicating any alteration. The government did not in form Ajayi or the court that it was not a pattern instruction, and Ajayi’s counsel assumed that it was a pattern instruction and stated “no objection.” The government charged Ajayi with five counts of bank fraud under 18 U.S.C. §§ 1344(1) and (2), one count of money laundering under 18 U.S.C. § 1957(a), and one count of knowingly making and possessing an altered check under 18 U.S.C. § 513(a). The jury convicted Ajayi of the bank fraud and money laundering counts. The district court sentenced Ajayi to 44 months’ imprisonment. Ajayi appeals his convic tion. II. ANALYSIS On appeal, Ajayi raises five challenges to his conviction. Specifically, he challenges: (1) the sufficiency of the evidence underlying his convictions for bank fraud and money laun dering, (2) the district court’s decision to exclude Ajayi’s business emails on the ground of relevance, (3) the district court’s failure to give the pattern jury instruction defining 6 No. 14 2183 scheme, (4) the five bank fraud counts as multiplicitous, and (5) whether there was a variance or a constructive amend ment between the indictment and the proof offered at trial. We address each argument in turn. A. Evidence Was Sufficient to Sustain Ajayi’s Convic tions. Ajayi challenges the sufficiency of the evidence in sup port of the convictions for bank fraud and money launder ing. He argues that an essential fact to each count was that he knew the check he deposited was altered and that the government failed to prove this fact. We disagree. To successfully challenge the sufficiency of the evidence used to convict him, Ajayi must show that, “based on the ev idence presented at trial, no rational juror could find guilt beyond a reasonable doubt.” United States v. Morris, 576 F.3d 661, 666 (7th Cir. 2009). We often describe this as a nearly in surmountable hurdle. See, e.g., id. at 665–66 (quoting United States v. Pulido, 69 F.3d 192, 205 (7th Cir. 1995)). This descrip tion is apt because we will only find the evidence insufficient “when the record contains no evidence, regardless of how it is weighed, from which the trier of fact could find guilt be yond a reasonable doubt” as to each element of the crime. United States v. Domnenko, 763 F.3d 768, 772 (7th Cir. 2014) (quoting United States v. Torres Chavez, 744 F.3d 988, 993 (7th Cir. 2014)). And, we must “view the evidence in the light most favorable to the government.” Morris, 576 F.3d at 666. In order to convict Ajayi for bank fraud under 18 U.S.C. § 1344(1), the government must prove: “(1) there was a scheme to defraud a financial institution; (2) the defendant knowingly executed or attempted to execute the scheme; (3) No. 14 2183 7 the defendant acted with the intent to defraud; and (4) the deposits of the financial institution were insured by the FDIC at the time of the charged offense.” United States v. Par ker, 716 F.3d 999, 1008 (7th Cir. 2013). Bank fraud under § 1344(2) requires the government to prove that there was a scheme to obtain money from the bank and that the scheme involved a materially false or fraudulent pretense, represen tation, or promise, in addition to elements two through four necessary under § 1344(1). See United States v. Higgins, 270 F.3d 1070, 1073–74 (7th Cir. 2001). Money laundering under 18 U.S.C. § 1957(a) requires the government to prove the de fendant knew the transaction involved criminally derived property that was derived from an unlawful activity, here, bank fraud. See United States v. Haddad, 462 F.3d 783, 791–92 (7th Cir. 2006). Because Ajayi contends that essential to each count was proof that he knew the check was altered and the government failed to prove that fact, we will only address that aspect of the crimes. The government introduced evidence establishing that the fraudulent alterations of the check were readily appar ent, that Ajayi had control of the business account, with a $90.08 balance, that carried a balance of less than $332 the year before the deposit. The government also proved that Ajayi deposited the check through an ATM as opposed to a teller and that within five days of the check’s clearance, Aja yi withdrew approximately $171,000. He wrote checks to himself that he cashed at different branches, sent a wire transfer to a third party in Florida, and made purchases at retailers such as Gap and the Apple Store. While there was no direct evidence that Ajayi deposited the check knowing it had been altered, the government 8 No. 14 2183 could also establish this fact by circumstantial evidence and by inferences drawn from the scheme itself. See United States v. Howard, 30 F.3d 871, 874 (7th Cir. 1994); see also United States v. Jackson, 540 F.3d 578, 594 (7th Cir. 2008). Based on the government’s circumstantial evidence regarding the ac count balances and the way that Ajayi withdrew funds, a ra tional juror could have found that Ajayi knowingly deposit ed a fraudulent check. Additionally, there was evidence that the alterations on the check were obvious. Given these facts, Ajayi’s story that he was expecting a $45,000 check—but re ceived one for almost $350,000, and cashed it—is highly sus pect. Finally, this evidence was sufficient not only to estab lish that Ajayi deposited the check knowing of the alterna tion, but it also supports the money laundering conviction. Relying on United States v. Anderson, 188 F.3d 886 (7th Cir. 1999), Ajayi finally argues that as to the bank fraud counts, the fraud scheme ended when Ajayi deposited the check, so evidence of his activities after cashing the check cannot establish that he knew the check was fraudulent. “[T]he crime of bank fraud is complete when the defendant places the bank at risk of financial loss, and not necessarily when the loss itself occurs.” Anderson, 188 F.3d at 888. The “bank fraud statute is meant to punish each ‘execution’ of the scheme to defraud, and not each act in furtherance of the scheme to defraud.” Id. at 889. Although the crime is com plete when the bank is put at risk of financial loss, a defend ant could still engage in subsequent acts in furtherance of the scheme that are not indictable, but are still part of the scheme. See United States v. Longfellow, 43 F.3d 318, 323 (7th Cir. 1994). Ajayi overstates the holding in Anderson. Even if the withdrawal of funds were acts in furtherance of the crime, as opposed to separate crimes as charged, the un No. 14 2183 9 charged acts could be evidence that supports the conviction. See Anderson, 188 F.3d at 889; Longfellow, 43 F.3d at 323. B. No Abuse of Discretion to Refuse Admission of Emails. Ajayi argues that the central issue at trial was “whether he knowingly executed the bank fraud, i.e., whether he knew the check was altered.” He contends that the district court erred by excluding emails exchanged between him and individuals who were helping him buy or attempting to sell him MRI machines because the emails would have support ed his defense that the check was intended to help his fledg ling MRI business. These emails were sent around July 20– 21, 2009, December 9–30, 2009, and January 16, 2010. He maintains that the jury could have reasonably inferred from the text and timing of the emails that he had been contem plating the purchase of MRI machines to start his business for at least four months before he received the check in No vember 2009, and that after he received the check, he in creased the seriousness of his inquiries about the MRI ma chines. He also argues that the emails would have discredit ed the government’s argument that his business was not le gitimate and the check had no legitimate purpose. We review the district court’s decision to exclude evi dence for abuse of discretion. United States v. Holt, 460 F.3d 934, 936 (7th Cir. 2006). Even if the district court erred, “[w]e will reverse and order a new trial only if any evidentiary er rors are not harmless.” United States v. Simon, 727 F.3d 682, 696 (7th Cir. 2013). We evaluate challenges to the admissibil ity of evidence in light of all the evidence before the jury. Holt, 460 F.3d at 936. 10 No. 14 2183 Relevant evidence is evidence that has a tendency to make a fact more or less probable than it would be without the evidence and involves a fact of consequence in determin ing the action. Fed. R. Evid. 401. Although the district court was not required to exclude this evidence, it was acting within its discretion when it did. District courts have “broad discretion to control the admission of evidence.” United States v. Ozuna, 561 F.3d 728, 738 (7th Cir. 2009). Evidentiary rulings are “subject to reversal only if ‘no reasonable person could take the view adopted by the trial court.’” United States v. Blitch, 773 F.3d 837, 847 (7th Cir. 2014) (quoting Unit ed States v. Vargas, 552 F.3d 550, 554 (7th Cir. 2008)). While the emails may have shown that Ajayi had a legitimate business, a reasonable person could have taken the view that they were not germane because they had no connection to the crime—the forged check, Brown, or Ajayi’s intent to engage in the scheme. Therefore, the exclusion of the emails was not an abuse of discretion. See United States v. Van Allen, 524 F.3d 814, 825 (7th Cir. 2008) (finding that the district court did not abuse its discretion by excluding evidence because the evi dence did not have any bearing on the elements of the crime). C. No Error in Failure to Give Pattern Scheme Jury In struction. Ajayi argues that the district court’s failure to include certain language from the pattern jury instruction that de fines “scheme” constituted plain error and prejudiced him. The government responds that the issue is not reviewable because Ajayi waived his objection to the jury instruction when he affirmatively agreed to it as proposed by the gov ernment, and if the issue were not waived, there was no er No. 14 2183 11 ror. We agree. Even if we were to find that Ajayi did not waive his right to challenge the “scheme” jury instruction, he fails to establish that there was plain error. Ordinarily, we treat an affirmatively stated “no objec tion” to a jury instruction as a waiver. See, e.g., United States v. Natale, 719 F.3d 719, 729–30 (7th Cir. 2013). “But in Natale, we recognized the harshness of the waiver rule where de fense counsel’s statements likely resulted from negligently bypassing a valid argument rather than a knowing inten tional decision.” United States v. Pust, 798 F.3d 597, 602 (7th Cir. 2015). When a simple “no objection” was given during a rote call and response colloquy with the district court judge during a charging conference, we suggested that it may be that waiver is not presumed and the court may examine whether the objection was forfeited rather than waived. Na tale, 719 F.3d at 730–31. We further suggested that reviewing these issues may be proper when the alleged erroneous in struction “inaccurately state[d] the law by minimizing or omitting elements required for conviction.” Id. at 731. Here, Ajayi’s counsel stated “no objection” during a rote colloquy with the district court. Also, the government represented that the instruction was a pattern one and did not disclose that the instruction omitted language that was relevant to the case. (In other instances, the government noted altera tions to the pattern instruction or when the instruction was not a pattern one.) However, even if we were to conclude that the deletion of this language was an error, he has not shown that it was plain. We may only find plain error if he establishes that there is: (1) an error or defect; (2) that is clear or obvious; and (3) that affected his substantial rights. Puckett v. United States, 12 No. 14 2183 556 U.S. 129, 135 (2009). If the defendant can establish “the above three prongs …, the court of appeals has the discretion to remedy the error,” if it seriously affects the fairness, integ rity, or public reputation of judicial proceedings. Id. The Seventh Circuit Pattern Criminal Jury Instructions defines “scheme” for charges under 18 U.S.C. § 1344. The pattern instruction, in full, states: A scheme is a plan or course of action formed with the intent to accomplish some purpose. [In considering whether the government has proven a scheme to obtain moneys, funds, credits, assets, securi ties, or other property from a [bank] [financial institu tion] by means of false pretenses, representations or promises, the government must prove at least one of the [false pretenses, representations, promises, or] acts charged in the portion of the indictment describing the scheme. However, the government is not required to prove all of them.] [A scheme to defraud a [bank] [financial institution] means a plan or course of action intended to deceive or cheat that [bank] [financial institution] or [to obtain money or property or to cause the [potential] loss of money or property by the [bank] [financial institution]. [A scheme to defraud need not involve any false state ment or misrepresentation of fact.]] Pattern Criminal Jury Instructions of the Seventh Circuit 413 (2012). The commentary explains when to use the bracketed language. The first bracketed paragraph should be given in a case in which a scheme to obtain money from a bank by means of false pretenses, representations or promises is charged under § 1344(2). The second bracketed para graph should be given in a case in which a scheme to de fraud a bank is charged. Where both methods of violat No. 14 2183 13 ing the statute are charged, both paragraphs should be given. Id. The government’s proposed instruction, which was adopted by the court, only included the first sentence and the second bracketed paragraph of the pattern instruction.1 Ajayi argues that the district court erred. Because its jury instruction did not include the language from the pattern instruction clarifying what constitutes a scheme, the jury did not know that it had to find proof of a misrepresentation to convict him. The district court’s failure to include the language of the first bracketed paragraph of the pattern instruction defining “scheme” did not permit the jury to find Ajayi guilty with out proof of a misrepresentation. The indictment charged Ajayi under § 1344(2). So, the instruction arguably should have included this paragraph. But we must keep in mind that the instruction given immediately before the scheme in struction informed the jury that it must find proof of a mis representation beyond a reasonable doubt. It stated that the government had to prove beyond a reasonable doubt that the “defendant knowingly executed the scheme” and that the “scheme involved a materially false or fraudulent pre tense, representation, or promise.” This language informed 1 The jury instruction used by the court stated: A scheme is a plan or course of action formed with the intent to accomplish some purpose. A scheme to defraud a bank means a plan or course of action intended to deceive or cheat that bank or to ob tain money or property or to cause the potential loss of money or property by the bank. 14 No. 14 2183 the jury that proof of a misrepresentation was required. We assume the jury follows the instructions given. United States v. Keskes, 703 F.3d 1078, 1086 (7th Cir. 2013). Ajayi did not point to anything in the record to overcome that presump tion. The omitted language defining scheme would merely have informed the jury that regardless of how many misrep resentations are alleged in the indictment, the government must prove at least one. There was no plain error and the absence of the language did not permit the jury to find Ajayi guilty without the evidence necessary for conviction. D. Bank Fraud Counts Are Multiplicitous. Ajayi contends that the five counts of bank fraud in the indictment are multiplicitous. The government contends that the bank fraud counts are not multiplicitous because each check Ajayi wrote to himself and cashed was a separate exe cution of the fraud scheme. Because Ajayi failed to challenge the indictment on multiplicity grounds before trial, the claim is forfeited and subject to plain error review. United States v. Parker, 508 F.3d 434, 440 n.5 (7th Cir. 2007). Counts 1, 2, 3, 5, and 6 of the indictment charged Ajayi with bank fraud under 18 U.S.C. §§ 1344(1) and (2). The in dictment alleged a fraud scheme where Ajayi, knowing the check had been altered, deposited the check into his business account to create an inflated balance. The balance was inflat ed, the government alleged, to deceive JP Morgan Chase into honoring checks and paying debits drawn on the account. Count 1 described this general scheme and the first check drawn on the business account that Ajayi wrote to himself and cashed. Of the remaining bank fraud counts, each count was for one of the four other checks drawn on the business account that Ajayi wrote to himself and cashed. No. 14 2183 15 A multiplicitous indictment charges a single offense as separate counts. United States v. Starks, 472 F.3d 466, 468–69 (7th Cir. 2006). It exposes the “defendant to the threat of re ceiving multiple punishments for the same offense in viola tion of the Double Jeopardy Clause of the Fifth Amend ment.” Id. at 469. To “determine whether a given indictment contains multiplicitous counts, we look to the applicable criminal statute to see what the allowable ‘unit’ of prosecu tion is—the minimum amount of activity for which criminal liability attaches.” United States v. Allender, 62 F.3d 909, 912 (7th Cir. 1995). The bank fraud statute criminalizes a knowing execution of a scheme to defraud a financial institution or a scheme to obtain money under the custody or control of a financial in stitution by means of fraudulent representations. 18 U.S.C. § 1344. “This and other circuits have consistently held that each ‘execution’ of a scheme, rather than a mere ‘act in fur therance of such a scheme,’ constitutes a separate violation of § 1344.” Allender, 62 F.3d at 912 (quoting Longfellow, 43 F.3d at 323); see also Anderson, 188 F.3d at 889. A single crim inal scheme may have more than one execution. Anderson, 188 F.3d at 889. Furthermore, “the crime of bank fraud is complete when the defendant places the bank at risk of fi nancial loss, and not necessarily when the loss itself occurs.” Id. at 888. An act is an indictable “execution” rather than a non indictable “act in furtherance” when the act puts the bank at an additional financial risk. See Longfellow, 43 F.3d at 323 (collecting cases). Additionally, an execution is “chronologi cally and substantively independent,” where no act “de pended on others for its existence, and each [act] had its own 16 No. 14 2183 function and purpose—they were interrelated only because they involved the same overall scheme.” Id. (citing United States v. Molinaro, 11 F.3d 853, 860 (9th Cir. 1993)) (alterations omitted). Here, each withdrawal was not a “chronologically and substantively independent” act. The withdrawal of funds, the basis for counts 2, 3, 5, and 6, was entirely dependent on the initial deposit of the fraudulent check. Additionally, the acts were not chronologically separate, as each act charged occurred within days of the other. Also, the withdrawal of funds did not put the bank at any additional risk. When it released the funds from the check to the account, the bank put itself at risk for losing the entire amount of the check, and the subsequent withdrawals did not create an additional risk. So, they are not executions. Rather, they are acts in furtherance of the crime. As a result, we hold that withdrawals of money credited to an account that is the proceeds of a fraudulent check are not indictable separate executions. See United States v. Hord, 6 F.3d 276, 281–82 (5th Cir. 1993) (holding that under the bank fraud statute the deposits of fraudulently obtained funds consti tute the execution of the fraud scheme, not the attempts to withdraw funds); see also Longfellow, 43 F.3d at 324 (discuss ing Hord). Therefore, counts 2, 3, 5, and 6 are multiplicitous of count 1, and Ajayi was exposed to double jeopardy. See Starks, 472 F.3d at 468–69. So his convictions and sentence were illegal and a miscarriage of justice. See United States v. Podell, 869 F.2d 328, 332 (7th Cir. 1989). We vacate his convic tions on counts 2, 3, 5, and 6 and remand for resentencing because the district court committed plain error by permit ting his convictions. No. 14 2183 17 The government argues that even if there were an error, it need not be corrected because the sentence was significant ly below the statutory maximum, and the guideline range for one conviction would be the same as for five. However, we do not agree and conclude that these counts must be va cated. Parker, 508 F.3d at 441 (citing United States v. Ball, 470 U.S. 856, 864–65 (1985)). At the very least, the district court must vacate the $100 special assessment for each multipli citous conviction. Also, the district court sentenced Ajayi to eight months for each multiplicitous conviction, to run con secutively. Since there is simply no way to ascertain whether the district court would have imposed the same sentence if Ajayi had been convicted of only one bank fraud count in stead of five, we must remand the case for resentencing. E. There Was No Variance. Finally, Ajayi argues that there was a fatal variance be tween the indictment and proof at trial because the scheme presented at trial was categorically different and broader than the scheme alleged in the indictment. Specifically, Ajayi contends that the indictment alleges that Ajayi was respon sible for diverting the check from ABM to his business; while at trial, the government did not attempt to prove this fact. Instead, it showed that Ajayi deposited a check that he knew was altered (because it was obvious on the face of the check) into his business account and made withdrawals from the account. Ajayi maintains that this varied the proof because based on the indictment, he believed that the government had to link him to the check in some way before its forgery. He further maintains that he was unable to anticipate that the government would present evidence that the diversion of the check and its forgery were not committed by Ajayi 18 No. 14 2183 and that he knew the check was altered because the altera tions were facially obvious. And as a result, he was left un prepared to defend himself. Because Ajayi failed to raise this challenge below, the claim is subject to plain error review. United States v. Duran, 407 F.3d 828, 843 (7th Cir. 2005). Although Ajayi references a constructive amendment, we find none. A constructive amendment occurs when the evi dence presented at trial supports a crime other than the one charged. See United States v. Ratliff White, 493 F.3d 812, 820 (7th Cir. 2007). Neither Ajayi’s arguments nor the evidence support the conclusion that the evidence at trial established a crime different from the one charged. So, we will examine whether there was a variance. “A variance between indictment and proof exists ‘when the terms of the indictment are unaltered, but the evidence offered at trial proves facts materially different from those alleged in the indictment.’” Id. (quoting United States v. Galif fa, 734 F.2d 306, 312 (7th Cir. 1984)). “A variance is fatal only when the defendant is prejudiced in his defense because he cannot anticipate from the indictment what evidence will be presented against him … .” Id. (quoting Hunter v. State of N.M., 916 F.2d 595, 599 (10th Cir. 1990)) (alteration omitted). “When … the indictment gives a defendant particular notice of the events charged, and the proof at trial centers on those events, minor differences in the details of the facts charged, as contrasted to those proved, are unlikely to be either mate rial or prejudicial.” United States v. Reeder, 170 F.3d 93, 105 (1st Cir. 1999). The facts at trial did not substantially vary from the fac tual allegations in the indictment. The indictment asserted, and the evidence at trial showed, that: (1) Ajayi had a busi No. 14 2183 19 ness bank account; (2) he obtained the fraudulent check; (3) the fraudulent check was altered by someone; (4) Ajayi, knowing that the check had been altered, deposited the check; and (5) Ajayi made several withdrawals from the ac count in the form of checks payable to himself. The only fact presented not included in the indictment was that the alteration to the check was obvious from the face of the check. “The proof at trial is necessarily more de tailed than the facts alleged in the indictment, which is simp ly a ‘plain, concise and definite written statement of the es sential facts constituting the offense charged.’” Id. (quoting Fed. R. Crim. P. 7(c)(1)). As previously stated, the indictment charged a scheme to defraud the bank by Ajayi submitting a check he knew was altered. Proof at trial was the same. Con trary to Ajayi’s contention, the indictment does not allege how Ajayi knew the check was altered. This information is part of the “more detailed” facts that were proof at trial but not part of the indictment. In our view, there was no materi al variance. Even if there were a variance, we find that Ajayi was not prejudiced by it. Ajayi argues that had he known that the government was going to argue that he knew the check was altered because the alterations were obvious from the face of the check, he would have moved for a bill of particulars or to dismiss the indictment, or added expert testimony to estab lish that a layperson would not have known the check was altered. However, Ajayi knew the material elements of the crime and that the government was going to try to establish that he knew the check was altered. It was up to Ajayi and his attorney to come up with ways to show that he did not have the requisite knowledge. He could have filed motions 20 No. 14 2183 and retained an expert to defend against the knowledge el ement based on the indictment as written. Also, because one of the charges was that he made and possessed an altered check, he could have anticipated that the government was going to submit evidence about the alteration. Therefore, we conclude that he was not prejudiced because he could antic ipate from the indictment what evidence was going to be presented against him. III. CONCLUSION Therefore, we VACATE the convictions for counts 2, 3, 5, and 6 because they are multiplicitous and REMAND this case to the district court for resentencing. We AFFIRM all other is sues raised on appeal.
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