United States v. William Campbell ( 2017 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued February 14, 2017
Decided September 20, 2017
Before
ILANA DIAMOND ROVNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 16-1520
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 1:12-cr-00957-4
WILLIAM CAMPBELL,
Defendant-Appellant. Sharon Johnson Coleman,
Judge.
ORDER
A jury convicted William (a.k.a. Willie) Campbell on charges of wire fraud and
access device fraud based on his participation in a fraudulent scheme to use gift cards
acquired with stolen credit card information to purchase large amounts of merchandise
at various retail stores and then sell that merchandise. See 18 U.S.C. §§ 1343, 1029(a)(2).
So far as the record reveals, Campbell’s role in the scheme was limited to purchasing
more than $100,000 worth of cigarettes at Sam’s Club stores with some 1,200 gift cards
over a period of six months and assisting a co-defendant to deliver the cigarettes to a
No. 16-1520 Page 2
convenience market on at least one occasion. Campbell contends on appeal that the
government’s evidence was insufficient to establish that he knew the gift cards he was
using to purchase the cigarettes were obtained with stolen credit card numbers and
thus to establish that he harbored an intent to defraud the victims of the scheme.
Campbell also argues that plain error occurred in the admission of testimony
concerning evidence seized in the search of a co-defendant’s residences and in the
submission of the case to the jury based on proof that fatally varied from the modified
version of the indictment that was given to the jury for reference in its deliberations. We
affirm the judgment.
I.
In view of Campbell’s challenge to the sufficiency of the evidence underlying his
convictions, we recount the facts in the light most favorable to the government. E.g.,
United States v. Betts-Gaston, 860 F.3d 525, 529 (7th Cir. 2017).
Campbell was one of five people charged as participants in a three-year scheme
to use credit card information stolen from 30,000 or more account-holders to
manufacture fraudulent credit and gift cards (both of which qualify as access devices
under federal law) and use those cards to purchase additional gift cards and
merchandise at various national retailers, including Walmart, Home Depot, Family
Dollar and Sam’s Club. The four other participants obtained stolen credit card data,
encoded valueless credit cards and gift cards with that data, and then used those cards
to obtain retail gift cards that could be used to purchase store merchandise, in some
instances by additional individuals they recruited into the scheme. Those four
defendants all pleaded guilty; only Campbell went to trial.
Campbell’s role in the scheme was limited to the purchase of merchandise at
Sam’s Club stores using Walmart gift cards (which Walmart refers to as “shopping
cards”)1 that had been purchased with stolen credit card information. Like a number of
other warehouse club retailers, Sam’s Club requires a customer to purchase a
membership in order to shop at its stores. Campbell established an individual
membership in his own name in November 2010, using his driver’s license as
confirmation of his identity. Sam’s Club asks shoppers to provide their membership
cards to cashiers for swiping whenever merchandise is purchased, which makes it
1
The Sam’s Club chain is owned by Walmart.
No. 16-1520 Page 3
possible for the company to create a record of how often each customer shops at a given
store, what items he has purchased, and how he paid for his purchases.
In the six months after he became a Sam’s Club member, Campbell visited Sam’s
Club stores in suburban Chicago on some 44 dates to purchase Newport 100's cigarettes
in bulk quantities.2 The individual purchases ranged in scale from hundreds to
thousands of dollars’ worth of cigarettes at a time. With one exception, Campbell made
these purchases at a Sam’s Club store in Addison, Illinois, roughly 18 miles from his
home in Chicago; on one occasion, he patronized the Sam’s Club in Woodridge, Illinois,
some 22 miles from his home. There were several Sam’s Club locations significantly
closer to his residence than either of these stores, but Campbell did not patronize those
stores. In total, Campbell purchased $101,888 worth of cigarettes. Campbell made these
purchases using a total of 1,208 Walmart gift cards.3 In certain instances, the gift cards
Campbell used had been purchased just a day or so earlier. Eighty-five percent of the
cards Campbell used (1,032 of 1,208) had a value of $90. The last of the purchases took
place on May 14, 2011. The record indicates that Campbell purchased additional items
on June 21, 2011, using electronic food stamp benefits as tender.
Because Campbell purchased the cigarettes using his individual Sam’s Club
membership account rather than a business account, he paid sales taxes on these
purchases. Had he instead opened a business account with Sam’s Club and made
purchases (for resale) with that account, he would have paid no sales taxes.
There is no dispute that all of the 1,208 gift cards Campbell used to purchase the
cigarettes were themselves acquired using credit card data stolen from 299 different
account holders. By way of example, two of the victims whose credit card numbers had
been used to purchase these gift cards (one from the District of Columbia area and one
from South Carolina) testified their credit cards were in their own possession at the time
the gift cards were purchased in Illinois, that they did not purchase the gift cards, that
2
Campbell typically purchased cigarettes by the case. A case of Newport 100's
contains 30 cartons, with each carton comprising 10 packages of 20 cigarettes per
package.
3
It appears that Campbell used cash to complete certain of his cigarette
purchases, but gift cards were used to pay for all but a few hundred dollars’ worth of
the cigarette purchases in total.
No. 16-1520 Page 4
they did not authorize anyone else to make these purchases, and that their information
had been stolen.
On eight of the occasions that Campbell purchased cigarettes at the Addison,
Illinois Sam’s Club, records reveal that his co-defendant Ike Jeffries made cigarette
purchases within minutes of Campbell’s transactions and at an adjacent cash register.
(Cigarettes are separately stocked and sold at a tobacco products center within Sam’s
Club stores.) The parties appear to agree that Jeffries was a more culpable participant in
the scheme than Campbell, if not the most culpable among the five persons charged.
Store video from December 7, 2016, showed Campbell and Jeffries standing side by side
while making their cigarette purchases on that date and at one point swapping gift
cards with one another as they completed their respective transactions. The video also
showed them arriving at the store together and leaving together with a cart full of
cigarettes. Both purchased several thousands of dollars’ worth of cigarettes that day
using dozens of gift cards.
By December 7, Sam’s Club personnel had become suspicious of the large-scale
cigarette purchases being made at the Addison store.4 A Walmart fraud investigator
followed Campbell and Jeffries when they left the Addison Sam’s Club on December 7.
They drove to a food market on Chicago’s west side, unloaded the cigarettes from their
vehicle, and delivered the cigarettes to the store. The investigator used his Blackberry
device to take photographs of Campbell and Jeffries doing this.
Two residences associated with Jeffries were searched pursuant to warrants
some 10 months after the last recorded cigarette purchases by Campbell in May 2011.5
During those searches, investigators seized some eight re-encoded credit cards, multiple
Western Union receipts reflecting the transmission of money to Russia, a computerized
embossing machine which could emboss numbers onto identification and credit cards,
and a laptop computer later determined to contain email exchanges reflecting the
fraudulent acquisition of credit card numbers.
4
Jeffries’ own purchases at the Addison Sam’s Club commenced roughly a
month before Campbell’s did and continued into July 2011.
5
A followup search of one of the residences was conducted approximately four
months later.
No. 16-1520 Page 5
Campbell was tried over a period of three days. Contrary to the government’s
expectation, none of his co-defendants testified, which required the government to rely
more heavily on circumstantial proof of Campbell’s knowing participation in the
scheme than it otherwise might have done. At the conclusion of the government’s case,
Campbell moved for a judgment of acquittal pursuant to Federal Rule of Criminal
Procedure 29(a), but the district judge denied the motion, reasoning that there was
sufficient evidence of his guilt to submit the case to the jury. The jury found him guilty
on all three counts in which he was charged.
II.
A. Sufficiency of the evidence
Campbell’s lead argument, as we noted above, is that the evidence introduced at
trial was insufficient to establish that he knowingly participated in fraudulent conduct.
In order to prove Campbell guilty of wire fraud and access device fraud, the
government was required to prove, among other elements, that he acted with an intent
to defraud. See United States v. Mullins, 800 F.3d 866, 870 (7th Cir. 2015) (wire fraud),
cert. denied, 136 S. Ct. 1235 (2016); 18 U.S.C. § 1029(a)(2) and United States v. Keita, 742
F.3d 184, 191 (4th Cir. 2014) (access device fraud). The parties agree that in order to find
that Campbell acted with fraudulent intent, the evidence would have to support the
notion that he knew the gift cards he was using to make the bulk purchases of cigarettes
from Sam’s Club were obtained illegally. There is no direct proof of Campbell’s
knowledge with respect to the provenance of the gift cards. But, of course,
circumstantial proof is a perfectly acceptable means of establishing a defendant’s
knowledge and intent. See, e.g., United States v. Persfull, 660 F.3d 286, 294 (7th Cir. 2011)
(“[B]ecause direct evidence of a defendant’s fraudulent intent is typically not available,
specific intent to defraud may be established by circumstantial evidence and by
inferences drawn from examining the scheme itself.”) (quoting United States v. Howard,
619 F.3d 723, 727 (7th Cir. 2010)).
In making his challenge to the sufficiency of the evidence underlying his
convictions, Campbell bears a heavy burden. E.g., United States v. Kohli, 847 F.3d 483,
489 (7th Cir. 2017), pet’n for cert. filed (U.S. June 26, 2017) (No. 17-37). We will overturn
his convictions only if the record is devoid of evidence from which a reasonable juror
could have found the elements of the offenses to have been proven beyond a reasonable
doubt. Musacchio v. United States, 136 S. Ct. 709, 715 (2016); Kohli, 847 F.3d at 489
No. 16-1520 Page 6
(collecting cases). In assessing the sufficiency of the government’s proof, we of course
consider the evidence in the light most favorable to the government. E.g., id. at 489.
Having examined the record, we are satisfied that the proof was sufficient to
permit the inference that Campbell knew the gift cards were obtained illegally and thus
that he acted with fraudulent intent in using the cards to make the purchases from
Sam’s Club. First, the purchases themselves were unusual in their frequency and
quantity. Campbell had opened an individual rather than a business account with
Sam’s Club, but he was purchasing large, resale quantities of cigarettes: his individual
purchases often exceeded $1,000 in value, and his total purchases over a six-month
period exceeded $100,000. His delivery of multiple cases of cigarettes to a Chicago food
market with Jeffries on December 7, 2010 confirms that the men were engaged in a
commercial (which is not to say legitimate) enterprise, supplying the cigarettes to one or
more retailers for resale by those retailers.6 Yet it is odd, to say the least, that Campbell
would not have established a business account for this purpose, which would have
enabled him to make the purchases without paying the not-insubstantial sales tax.7
Second, the use of gift cards to make these purchases was remarkable in and of itself,
given the quantities involved. No doubt there are any number of people who use the
gift cards they have been given to purchase items for their small businesses. But no
Santa gave Campbell $100,000 worth of Walmart gift cards. And no legitimate
enterprise uses gift cards as its preferred and regular form of legal tender. The use of
1,208 gift cards, the vast majority of them worth $90 each, to purchase $101,888 worth of
cigarettes for resale makes obvious that the cards were a vehicle for money laundering,
that is hiding an illicit source of funds. In some instances, the gift cards Campbell was
using had been purchased just a day earlier—some of the cards used in the December 7
Sam’s Club transaction, for example, had been obtained the evening prior—which
makes it highly unlikely that the cards had been purchased legitimately at a discount
via eBay or another internet website, as Campbell has suggested. A rational jury could
6
Campbell points out there was no proof that he and Jeffries were paid for the
cigarettes they delivered. But that is the obvious inference to be drawn: There is no
reason to believe the men would be donating the cigarettes; this was a food market
rather than a food pantry. The government did not charge Campbell for any conduct
relating to the sale of the cigarettes.
7
Prior to 2012, the Illinois sales tax on cigarette sales was 98 cents per pack. See
Rick Pearson and Ray Long, Lawmakers OK $1-a-pack cigarette tax hike, CHICAGO TRIBUNE,
May 30, 2012, at 4.
No. 16-1520 Page 7
conclude, as this jury did, that Campbell knew full well that the gift cards represented
the fruits of theft. His documented association and coordination with Jeffries—whom
the evidence linked directly to the acquisition of stolen credit card information and the
manufacture of credit cards using that data—simply reinforces what Campbell’s own
conduct evinces: a knowing participation in a scheme to parlay stolen credit card
information into large-scale purchases of merchandise for resale.
We do not agree with Campbell’s contention that the jury could not rationally
find him guilty without resorting to conjecture, and the piling of inference upon
inference. In that regard, the proof of Campbell’s knowing complicity in the fraudulent
scheme is distinguishable from United States v. Sullivan, 903 F.2d 1093 (7th Cir. 1990), on
which Campbell relies. The charge at issue in Sullivan was conspiracy. The defendant
had been nabbed in Chicago’s Union Station carrying 1.5 kilograms of 95% pure
cocaine. We agreed that the proof sufficed to show that he possessed the cocaine with
the intent to distribute it, but we discerned no proof that the defendant had engaged in
a conspiracy with anyone else in that regard. Id. at 1099. The agents who arrested the
defendant had seen him speak briefly with another passenger as the two of them
disembarked from a train, but beyond that there was no evidence from which one could
infer that he had entered into an illicit agreement with anyone else. Id. We agreed it was
possible that the defendant had obtained the cocaine from someone else and that he
planned to sell it to someone; but only hypothesis, rather than actual evidence,
suggested that he was conspiring with others. Id. In this case, the issue is Campbell’s
knowledge and intent; it was not necessary for the government to prove that he
conspired with anyone. Campbell’s own actions in purchasing large quantities of
cigarettes with more than a thousand relatively low-value gift cards permit the
inference that he knew the source of the cards was illegitimate. His evident
collaboration with Jeffries (who himself was purchasing large quantities of cigarettes
using gift cards in Campbell’s presence on multiple occasions) only strengthens the
inference, as it demonstrates Campbell’s knowledge that the scheme entailed similar
actions by others.
The district court therefore did not err in denying Campbell’s Rule 29 motion for
a judgment of acquittal. The evidence was sufficient to support the submission of the
case to the jury and the jury’s decision to convict him on the wire and access device
fraud charges.
B. Admission of evidence seized in search of Jeffries’ residences
No. 16-1520 Page 8
Campbell next argues that the district court erred in admitting the testimony of
U.S. Secret Service Special Agent Krzysztof Bossowski concerning the search of
residences associated with Jeffries. The agent testified that in the search they recovered
items such as re-encoded credit cards, Western Union receipts showing money sent to
Russia, an embossing machine capable of embossing numbers on IDs or credit cards,
and a laptop containing email exchanges about buying credit card numbers. Campbell
argues that evidence of the search of Jeffries’ residences should have been excluded
from the trial under Federal Rule of Evidence 403 because any minimal probative value
was substantially outweighed by the danger of unfair prejudice and the likelihood that
it misled the jury into attributing the seized evidence to Campbell himself. In general,
challenges to the district court’s decision to allow the evidence are reviewed only for an
abuse of discretion, but an even more onerous standard applies here. Because no
objection was made during the trial to the introduction of the evidence, we review the
admission only for plain error. Under that standard, Campbell must demonstrate that:
(1) there was an error that has not been affirmatively waived; (2) the error is clear or
obvious, rather than subject to reasonable dispute, such that a district judge should
have intervened without being prompted by an objection from defense counsel; and (3)
the error affected his substantial rights, which ordinarily means that he likely would
have been acquitted absent the error. United States v. Boswell, 772 F.3d 469, 476-77 (7th
Cir. 2014); Puckett v. United States, 556 U.S. 129, 135 (2009). Once those prongs are met,
we have discretion to remedy the error, which we should exercise only if the error
seriously affected the fairness, integrity or public reputation of the judicial proceedings.
Id.With that daunting standard in mind, we consider the Rule 403 challenge here.
Because all relevant evidence against a defendant is prejudicial by its nature, Rule 403
protects only from the admission of evidence that is unfairly prejudicial—evidence that
will “induce the jury to decide the case on an improper basis rather than on the
evidence presented.” Boswell, 772 F.3d at 476. And because the Rule considers whether
the probative value was outweighed by the danger of unfair prejudice, the risk of
prejudice that is acceptable varies based on the probative value of that evidence. Id.;
United States v. Vargas, 552 F.3d 550, 557 (7th Cir. 2008).
Campbell argues that even though there was no search of his residence, and no
evidence seized from the search of the Jeffries’ residences was directly tied to Campbell
or the Sam’s Club transactions, the government nevertheless was allowed to introduce
evidence from the search as evidence against Campbell. He asserts that the evidence
had minimal value because it was conducted almost a year after the transactions at
No. 16-1520 Page 9
issue concerning Campbell, and complains that “[t]he only connection the seized
evidence had to Campbell is that he was seen in the company of Jeffries on multiple
occasions nearly a year before the date of the search.” Defendant-Appellant Brief at 23-
24.
That is not an accurate characterization of the evidence. Campbell was indicted
along with Jeffries and three others with participating in a wire fraud scheme.
Therefore, evidence of the scheme was relevant to Campbell’s charge. Moreover,
evidence introduced at trial would allow a jury to conclude that Jeffries and Campbell
coordinated their activities, and jointly worked to further the scheme by converting gift
cards purchased by illegal means into cash by means of the purchase and sale of
cigarettes. At trial, there was evidence that Jeffries was physically present at the
Addison Sam’s Club on eight occasions in which bulk purchases of cigarettes by
Campbell occurred. And on one of those occasions, December 7, they were under
surveillance and were observed arriving together at Sam’s Club, purchasing cigarettes
simultaneously and sharing gift cards in the process, departing together and traveling
to the convenience store, and unloading those purchases. Additionally, evidence was
introduced that the gift cards were used in the Sam’s Clubs transactions within a day or
two of their purchase. For the December 7 transactions, for instance, gift cards used in
the transactions had been purchased within the prior twenty-four hours, and Jeffries
and Campbell both used gift cards purchased in that set.
Evidence from the search indicating Jeffries’ actions in obtaining the credit
information, manufacturing the bogus credit cards, and purchasing the gift cards, is
probative because it demonstrates the contours of the scheme. Given the evidence of
coordination and communication between Jeffries and Campbell, it is also relevant in
establishing Campbell’s fraudulent intent. Although the search occurred approximately
ten months after the last purchase by Campbell, thus reducing its probative value,
records from Sam’s Club and Walmart show that Jeffries used cards in the same manner
from just prior to Campbell’s participation in the scheme until the time of search, thus
demonstrating that Campbell joined a scheme that was ongoing and consistent in
nature.
Most critically, our review here is not whether we would conclude that the
probative value outweighed the risk of unfair prejudice, but rather to determine
whether Campbell has demonstrated that the failure to exclude that evidence was plain
error. In that context, we would be hard-pressed to determine that any error in
admission was so clear or obvious that the district court should have intervened even in
No. 16-1520 Page 10
the absence of any objection. But the more significant problem for Campbell in
establishing plain error is that he cannot show that the error affected his substantial
rights in that he would likely have been acquitted absent the error. Nor can he
demonstrate that the error seriously affected the fairness, integrity or public reputation
of the judicial proceedings. The government’s testimony as to the search was narrow
and brief. In a trial transcript that exceeds 500 pages, the testimony regarding the search
spans less than two pages, and it was discussed in closing argument for only a few
sentences. The government did not introduce into evidence any of the physical items
recovered in the search, including the re-encoded credit cards, embossing machine, and
email exchanges, nor did it introduce photographs of the items. Moreover, Campbell’s
conviction for wire fraud did not require any finding that he was involved in the
acquisition of credit card information, the manufacturing of new cards, or the purchase
of the gift cards. It was enough that he knowingly participated in a scheme to use gift
cards unlawfully acquired to purchase cigarettes which were then sold for personal
gain. The evidence unrelated to the search is substantial, as set forth in our sufficiency
analysis. There is no evidence that Campbell had the income to purchase the gift cards
himself that he used at Sam’s Club, and his two purchases made by him at Sam’s Club
using food stamps indicates that he did not. The purchase of such a large quantity of
cigarettes without using a business card and thereby avoiding the significant tax on
such purchases indicates that the purchases were not made on behalf of a legitimate
business. And the odd denomination of $90 for the bulk of those cards indicates an
effort to avoid detection by purchasing in smaller amounts. With all of that evidence
unrelated to the search, and the minimal role that the search featured in the trial itself,
we have no basis to hold that Campbell would have been acquitted absent that
evidence, or that the fairness, integrity or public reputation of the judicial proceedings is
implicated in his conviction. Accordingly, Campbell has failed to demonstrate that the
admission of the search evidence constituted plain error.
C. Variance from the indictment submitted to jury
Finally, Campbell argues that the variance between the indictment and the
evidence produced at trial was a fatal error. Although the indictment presented to the
jury was modified from the original indictment by agreement of the parties, Campbell
asserts that the modified indictment nevertheless charged Campbell with a much
broader participation in the alleged scheme than the evidence proffered at trial could
support. Specifically, he asserts that the modified indictment included the following
facts for which no evidence was offered at trial:
No. 16-1520 Page 11
(1) in paragraph 3, that the scheme included the manufacture of bogus credit cards
by encoding the account information of legitimate credit card accounts onto
valueless credit and gift cards obtained from various sources and that those
bogus credit cards were used fraudulently to purchase goods and gift cards from
retail merchants, with those purchases charged to the victim credit card holders;
(2) in paragraph 5, that as part of the scheme individuals fraudulently obtained
information for credit card accounts assigned to legitimate account holders from
sources such as individuals who sold such information through the internet;
(3) in paragraph 6, that it was further part of the scheme that individuals distributed
the bogus cards to other co-schemers;
(4) in paragraph 7, that as part of the scheme Campbell as well as Jeffries caused
those bogus credit cards to be used to purchase Walmart gift cards, with those
purchases charged to the account of the victim cardholders;
(5) in paragraph 10, that Campbell and Jeffries, among others, fraudulently
converted to their own benefit the goods that they purchased using the victim’s
credit card accounts;
(6) in paragraph 11, that as part of the scheme, Campbell and Jeffries, among others,
misrepresented, concealed and hid, and caused to be misrepresented, concealed
and hidden, acts done in furtherance of the scheme and the purposes of those
acts.
As a preliminary matter, the notion that no evidence was produced at trial to support
those allegations is itself unfounded. In offenses such as this one involving a scheme to
defraud, direct evidence of fraudulent intent is often unavailable, and, as we noted
above, such intent is instead often established through circumstantial evidence and the
inferences drawn from the scheme itself. See United States v. Persfull, supra, 660 F.3d at
294 (quoting United States v. Howard, 619 F.3d at 727). For instance, when cigarettes are
purchased in large quantities and then unloaded at a different store, the jury could
determine that Campbell was paid for those cigarettes by that store and in that manner
was fraudulently converting the goods for his own benefit. Moreover, the search of the
Jeffries’ homes provided evidence of the allegations that the scheme included the
manufacture of bogus credit cards with an encoding device, that information for the
accounts was obtained from sources who sold through the internet, that such cards
No. 16-1520 Page 12
were used to purchase Walmart gift cards which were then used to purchase cigarettes,
and that those cigarettes were then sold to a third party for personal gain.
But we need not determine whether the challenged allegations in the indictment
were supported by trial evidence, because there is no requirement that the evidence at
trial match precisely the allegations in the indictment. In fact, that proposition has been
repeatedly rejected. See, e.g., United States v. Miller, 471 U.S.130, 136-37 (1985); United
States v. LaBudda, 882 F.2d 244, 249-50 (7th Cir. 1989); United States v. Ajayi, 808 F.3d
1113, 1125 (7th Cir. 2015).
Even if Campbell could demonstrate a variance in that the proven elements of
the offense are narrower than the allegations in the indictment, that alone would not
entitle him to any relief. See United States v. Cruse, 805 F.3d 795, 804 (7th Cir. 2015), cert.
denied, 136 S. Ct. 1699 (2016). “The general rule that allegations and proof must
correspond serves the purpose of ensuring that the accused is informed of the charges
against him so that he can prepare his defense and so he may be protected against a
second prosecution for the same offense.” United States v. Neighbors, 590 F.3d 485, 498
(7th Cir. 2009). Accordingly, a variance will prove fatal only if it prejudiced the
defendant, such as by depriving him of fair notice of the charges against him or by
creating the risk of double jeopardy. Id.; Cruse, 805 F.3d at 804.
Challenges based on a variance often involve allegations that the evidence at trial
was broader than the allegations of the indictment, thus surprising the defendant and
forcing him to defend against charges for which he had not prepared. As Campbell
recognizes, the variance claim in this case presents a different situation. Campbell
argues that the allegations in the indictment were broader, not narrower, in scope than
the evidence of wrongdoing presented at trial. He claims that the indictment was
referenced by the jurors during deliberations and presented a “story” to them that was
broader in scope than the evidence presented at trial. Although the district court
informed the jury that the indictment was not evidence, Campbell claims that his right
to a fair trial was prejudiced by the inclusion of the allegations. Because Campbell failed
to raise this argument to the district court, we review only for plain error, under which
we will not reverse unless the alleged error is clear or obvious and affects substantial
rights. United States v. Baker, 227 F.3d 955, 963 (7th Cir. 2000).
Even if the indictment alleged a scheme broader in scope than that proven at
trial, we have repeatedly recognized that a prosecutor may elect to proceed on a subset
of the allegations in an indictment, such as proving a conspiracy or scheme that is
No. 16-1520 Page 13
smaller than the one alleged, so long as that subset is itself illegal. Cruse, 805 F.3d at 804;
United States v. Willis, 2017 WL 3573395 at *5 (7th Cir. Aug. 18, 2017). Because the
proven offense is a subset of the charged conspiracy or scheme in such a case, the
variance is not fatal because the defendant was adequately notified of the allegations
presented at trial and suffered no prejudice. Neighbors, 590 F.3d at 498.
The same reasoning applies if the additional allegations in the indictment did not
represent a broader offense but merely added facts or details which were not
established at trial, as Campbell alleges. We have repeatedly held that such a variance
does not prejudice the defendant. “As long as the crime and the elements of the offense
that sustain the conviction are fully and clearly set out in the indictment, the right to a
grand jury is not normally violated by the fact that the indictment alleges more crimes
or other means of committing the same crime. … 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.’” United States v. Quintanilla, 2 F.3d 1469,
1475 (7th Cir. 1993) (quoting Miller, 471 U.S. at 136). In fact, Federal Rule of Criminal
Procedure 7(d) provides a vehicle for the defendant to strike such surplusage from the
indictment or information. If it is clear that the allegations are not relevant to the charge
and are inflammatory and prejudicial, a district court presented with such a motion to
strike may strike the allegations from the indictment in its discretion. See Fed. R. Crim.
P. 7(d); United States v. O’Connor, 656 F.3d 630, 645 (7th Cir. 2011) (in response to the
defendant’s argument that the indictment included facts that pertained only to the
actions of others in the scheme but erroneously and prejudicially implied her
participation, court held that the wire fraud count incorporated by reference the entire
fraudulent scheme, thus rendering such facts relevant.) Campbell does not argue that he
brought any such motion to strike and it was denied.
We addressed an analogous situation to Campbell’s in United States v. Peters, 435
F.3d 746, 752-53 (7th Cir. 2006). There, the defendant complained of sentencing
allegations which were included in the indictment and were read to prospective jurors
during voir dire. Id. at 753. Peters was convicted of willfully taking money from the
presence of another by intimidation, and the additional sentencing details in the
indictment included allegations of the brandishing of a weapon, physical restraint to
facilitate escape, and loss in excess of $10,000. Id. We rejected Peters’ claim, reasoning
that allegations independent of the offense of conviction are surplusage which may be
disregarded as long as the evidence at trial was sufficient to support the offense of
conviction. Id. at 752. Moreover, in considering whether Peters was nevertheless
prejudiced and the allegations should have been excluded under Rule 7(d), we held that
while the allegations were not essential elements of the crime, they were relevant to the
No. 16-1520 Page 14
elements of the offense such as intimidation, the presence of another, and the taking of
money. Id. at 753. We further noted that the instruction by the court that the indictment
was not evidence weighed against finding plain error. Id.Similarly, the allegations in the indictment challenged by Campbell are
independent of the allegations of the offense of conviction, and we have already held
that the evidence presented at trial was sufficient to support that conviction. Campbell
complains of additional allegations indicating the broader contours of the scheme. But
such surplusage is not directly related to the offense of conviction and therefore is not a
fatal variance. See also United States v. Leichtnam, 948 F.2d 370, 377 (7th Cir. 1991)
(recognizing that if the evidence fails to prove every fact in the indictment, but proves
the same scheme or a subset of it, the right to a grand jury has not been denied). As the
Supreme Court recognized, courts have generally sustained convictions where the
evidence upon which it is based corresponds to an offense clearly set out in an
indictment, and any additional allegations in the indictment which are unnecessary to
and independent of the allegations of the offense proved “may normally be treated as ‘a
useless averment’ that ‘may be ignored.’” Miller, 471 U.S. at 136 (quoting Ford v. United
States, 273 U.S. 593, 602 (1927)). Because the challenged allegations in the indictment are
mere surplusage and no prejudice has been demonstrated, the claimed variance is not
fatal to the conviction.
III.
The judgment of the district court is AFFIRMED.