USA v. Steven Dorfman

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 24-2275
UNITED STAT ES OF AMERICA,
Plaintiff-Appellee,
v.
S
TEVEN DORFMAN,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:22-cr-30024 — Stephen P. McGlynn, Judge.
____________________
ARGUED DECEMBER 10, 2025 — DECIDED JU LY 27, 2026
____________________
Before BRENNAN, Chief Judge, and LEE and KOLAR, Circuit
Judges.
LEE, Circuit Judge. Steven Dorfman was the owner and
Chief Executive Officer of a telemarketing company that sold
limited indemnity healthcare insurance plans over the phone.
These plans offered a significantly lower level of benefits than
traditional healthcare plans. As CEO, Dorfman directed his
sales employees to follow a script containing misleading half-
truths and omissions to induce customers into buying the

2 No. 24-2275
plans. Along with two fellow executives, Dorfman was in-
dicted for conspiracy to commit wire fraud, wire fraud, and
mail fraud. After a jury convicted him of all counts, Dorfman
seeks to vacate his conviction on numerous grounds. Finding
no reversible error, we affirm.
I. Background
Dorfman was the owner and CEO of a telemarketing com-
pany, Simple Health. The company sold limited indemnity
plans over the telephone on behalf of Health Insurance Inno-
vations (“HII”), which administered the plans.
Limited indemnity plans are designed to supplement—
not replace—traditional forms of medical insurance. As a re-
sult, they differ from traditional plans in several significant
ways. Unlike traditional plans, for example, limited indem-
nity plans pay only fixed amounts when an insured incurs
certain health expenses, and they are not legally mandated to
cover prescription drugs or any specific types of treatment.
Perhaps most significantly, limited indemnity plans do not
provide a ceiling on a plan holder’s out-of-pocket costs. As a
result, the customer bears the risk of large medical bills (be-
yond the fixed amount provided by the plan). These plans are
not governed by the Affordable Care Act (“ACA”) and do not
satisfy the ACA’s individual mandate.
According to the government, Dorfman, along with John
Sand (Simple Health’s Vice President overseeing sales and the
call center) and Cameron Girouard (the company’s Chief Fi-
nancial Officer), ordered sales employees to use a deceptive
script to sell HII’s limited indemnity plans over the telephone.
The scripts were deceptive and misleading, the government
alleged, because they led customers to believe that the HII

No. 24-2275 3
plans provided substantially greater benefits than they actu-
ally did.
Dorfman, Sand, and Girouard were charged with conspir-
acy to commit fraud in violation of 18 U.S.C. § 1349 (Count
1);
1
wire fraud in violation of 18 U.S.C. § 1343 (Counts 2, 3, 4,
5, 6, 7, 10, 13);
2
and mail fraud in violation of 18 U.S.C. § 1341
(Counts 8, 9, 11, 12).
3

1
Section 1349 of Title 18 provides, “Any person who attempts or con-
spires to commit any offense under this chapter shall be subject to the
same penalties as those prescribed for the offense, the commission of
which was the object of the attempt or conspiracy.”
2
Section 1343 of Title 18, provides in relevant part,
Whoever, having devised or intending to devise any scheme or
artifice to defraud, or for obtaining money or property by means
of false or fraudulent pretenses, representations, or promises,
transmits or causes to be transmitted by means of wire, radio, or
television communication in interstate or foreign commerce, any
writings, signs, signals, pictures, or sounds for the purpose of ex-
ecuting such scheme or artifice, shall be fined under this title or
imprisoned not more than 20 years, or both.
3
Section 1341 of Title 18, provides in relevant part,
Whoever, having devised or intending to devise any scheme or
artifice to defraud, or for obtaining money or property by means
of false or fraudulent pretenses, representations, or promises, or
to sell, dispose of, loan, exchange, alter, give away, distribute, sup-
ply, or furnish or procure for unlawful use any counterfeit or spu-
rious coin, obligation, security, or other article, or anything repre-
sented to be or intimated or held out to be such counterfeit or spu-
rious article, for the purpose of executing such scheme or artifice
or attempting so to do, places in any post office ... any such matter
or thing, shall be fined under this title or imprisoned not more
than 20 years, or both.

4 No. 24-2275
Girouard pleaded guilty and testified against Dorfman
and Sand, who were tried together. Following an 11-day trial,
the jury found Dorfman and Sand guilty on all counts. Dorf-
man filed a motion for judgment of acquittal or, in the alter-
native, for a new trial, which the district court denied. He was
subsequently sentenced to 300 months of imprisonment as to
Count 1 and 240 months of imprisonment for each of Counts
2 through 13, all terms to be served concurrently. Dorfman
appeals, arguing that the district court committed various er-
rors that entitle him to a new trial.
II. Discussion
A. Jury Instruction on “Scheme to Defraud”
We begin with Dorfman’s challenge to the district court’s
instruction defining “scheme to defraud” for the jury. We re-
view de novo whether a jury instruction fairly and accurately
summarizes the law. United States v. Carrazco-Martinez, 166
F.4th 672, 678 (7th Cir. 2026) (citation omitted). “If it does, we
examine the district court’s particular phrasing of the instruc-
tion for abuse of discretion and we will reverse only if it ap-
pears both that the jury was misled and that the instructions
prejudiced the defendant.” Id. at 678–79 (citation modified).
The government asked the district court for a jury instruc-
tion similar to one found in United States v. Woods, 335 F.3d
993, 997–98 (9th Cir. 2003). The district court agreed and de-
fined “scheme to defraud” as follows:
In determining whether a scheme to defraud exists,
you are entitled to consider not only the defendants’
words and statements, but also the circumstances in
which they are used as a whole.

No. 24-2275 5
A defendant’s actions can constitute a scheme to de-
fraud even if there are no specific false statements in-
volved. The deception need not be premised upon
words or statements standing alone. The arrangement
of the words or the circumstances in which they are
used may create an appearance which is false or decep-
tive, even if the words themselves fall short of this.
Thus, even if statements as part of the scheme are not
literally false, you may consider whether the state-
ments taken as a whole were misleading and decep-
tive. Evidence beyond a reasonable doubt that a
scheme was reasonably calculated to deceive is suffi-
cient to establish a scheme to defraud.
Dkt. 139 at 28.
4

Dorfman insists that the instruction misstates the law in
two related ways. First, he argues that the federal mail and
wire fraud statutes require a defendant to have made state-
ments that were expressly false; “misleading and deceptive”
statements alone are insufficient to establish a scheme to de-
fraud. Second, Dorfman contends that a scheme to defraud
cannot consist solely of “[t]he arrangement of [ ] words or the
circumstances in which they are used” that create “an appear-
ance which is false or deceptive” even if the words themselves
are not false or deceptive.
1. Misleading and Deceptive Statements
To determine whether the federal wire fraud and mail
fraud statutes require a statement to be actually false, we
begin with the statutes’ text. See Bartenwerfer v. Buckley, 598

4
“Dkt.” refers to the docket number in the district court record.

6 No. 24-2275
U.S. 69, 74 (2023). A defendant commits wire fraud when he
executes “any scheme or artifice to defraud, or for obtaining
money or property by means of false or fraudulent pretenses,
representations, or promises.”
5
18 U.S.C. § 1343. Similarly, a
defendant commits mail fraud when he devises or attempts
to devise “any scheme or artifice to defraud, or for obtaining
money or property by means of false or fraudulent pretenses,
representations, or promises.” 18 U.S.C. § 1341. We construe
the identical language in the wire and mail fraud statutes “in
pari materia.” Kousisis, 605 U.S. at 121 n.2 (internal quotation
marks omitted).
The text of these provisions demonstrates that a scheme or
artifice to defraud does not require actual falsity, as Dorfman
contends. The statute requires “false or fraudulent pretenses,
representations, or promises.” (emphasis added). The ordi-
nary use of “or” is “almost always disjunctive, that is, the
words it connects are to be given separate meanings.”
Loughrin v. United States, 573 U.S. 351, 357 (2014) (quoting
United States v. Woods, 571 U.S. 31, 45 (2013)). Thus, “or fraud-
ulent” means something different from “false,” otherwise the
words “or fraudulent” would be read out of the statutes,
something that we are loath to do. Atl. Richfield Co. v. Christian,
590 U.S. 1, 31 n.3 (2020) (“[T]he Court usually seeks to avoid
a reading which renders some words altogether redundant.”)
(internal quotation marks omitted).
What is more, the breadth of the wire and mail fraud stat-
utes is evident in the use of the term “fraudulent,” “a para-

5
“Despite the use of the disjunctive ‘or,’ we have declined to interpret
§ 1343 as establishing alternative pathways to a conviction.” Kousisis v.
United States, 605 U.S. 114, 121 (2025).

No. 24-2275 7
digmatic example of a statutory term that incorporates [its]
common-law meaning.” Universal Health Servs., Inc. v. United
States, 579 U.S. 176, 187 (2016) (citing Neder v. United States,
527 U.S. 1 (1999)). At common law, the term “fraud” (and its
variations) is “a term with expansive reach,” Kousisis, 605 U.S.
at 124, that “include[s] more than just claims containing ex-
press falsehoods,” Universal Health Servs., 579 U.S. at 187. It
has “long encompassed certain misrepresentations by omis-
sion,” id., as well as “misrepresentations of material fact,”
Neder, 527 U.S. at 22 (citation modified); see Chiarella v. United
States, 445 U.S. 222, 227–28 (1980) (“At common law, misrep-
resentation made for the purpose of inducing reliance upon
the false statement is fraudulent.”).
Indeed, as the Supreme Court has recognized, the federal
mail fraud statute “reache[s] false promises and misrepresen-
tations.” McNally v. United States, 483 U.S. 350, 359 (1987). And
“[a] statement that misleadingly omits critical facts is a mis-
representation.” Universal Health Servs., 579 U.S. at 191.
Likewise, numerous circuit courts have held that misrep-
resentations based on half-truths or omissions fall within the
ambit of the wire and mail fraud statutes. See United States v.
Pacilio, 85 F.4th 450, 462 (7th Cir. 2023); Clinton v. Sec. Benefit
Life Ins. Co., 63 F.4th 1264, 1283 (10th Cir. 2023); United States
v. Philip Morris USA Inc., 566 F.3d 1095, 1122 (D.C. Cir. 2009);
United States v. Gillion, 704 F.3d 284, 296 (4th Cir. 2012). Thus,
a misrepresentation does not require express falsity, as Dorf-
man contends. In fact, the Supreme Court in Thompson v.
United States, a case upon which Dorfman heavily relies,
makes this very point, observing that “misleading state-
ment[s] can be true.” 604 U.S. 408, 413 (2025).

8 No. 24-2275
Accordingly, the district court’s instruction that “even if
statements as part of the scheme are not literally false, you
may consider whether the statements taken as a whole were
misleading and deceptive” is a correct recitation of the law.
Dorfman’s remaining arguments are equally unpersua-
sive. He leans on Thompson, but that case involved 18 U.S.C.
§ 1014, which criminalizes “knowingly mak[ing] any false
statement or report,” 604 U.S. at 413, and says nothing about
fraudulent pretenses, statements, or promises. Likewise, his
reliance on 18 U.S.C. § 1027 is misplaced; that provision pro-
scribes “false statement[s] or representation[s] of fact” as well
as the knowing concealment or omission of certain material
facts. Nothing about this language indicates, as Dorfman ar-
gues, that falsity is required in the federal wire and mail fraud
statutes. Lastly, Dorfman points to 18 U.S.C. §§ 1001 and 1035,
which criminalize a defendant’s “conceal[ing], or cover[ing]
up” a material fact. The lack of such language in the mail and
wire fraud statutes, he posits, means that they exclude such
conduct. But like the mail and wire fraud statutes, §§ 1001 and
1035 also criminalize “mak[ing] any ... fraudulent statements
or representations,” undermining Dorfman’s argument. See
18 U.S.C. §§ 1001(a)(2), 1035(a)(2).
2. False or Deceptive “Appearance”
Next, Dorfman objects to the court’s instruction that “[t]he
deception [for a scheme to defraud] need not be premised
upon words or statements standing alone.” Dkt. 139 at 28.
“The arrangement of the words or the circumstances in which
they are used,” the court continued, “may create an appear-
ance which is false or deceptive, even if the words themselves
fall short of this.” These statements taken together, Dorfman
insists, misstate the law.

No. 24-2275 9
Sections 1341 and 1343 criminalize “any scheme ... to de-
fraud ... by means of false or fraudulent pretenses, representa-
tions, or promises.” (emphases added). “Fraudulent pretense,”
construed broadly, might encompass “false appearances.” Af-
ter all, at the time of their enactment, the definitions of “pre-
tense” included a “deception by showing what is unreal and
concealing what is real” and a “false show.” Webster’s Second
New International Dictionary 1959 (1958). But it is not obvi-
ous from the statutory text that the phrase “fraudulent pre-
tenses, representations, and promises” would include the
“appearance of falsity” created by otherwise truthful, non-de-
ceptive words.
We must remember, however, that even if these two iso-
lated sentences were incorrect, “we will reverse only if the in-
structions, when viewed in their entirety, so misguided the
jury that they led to appellant’s prejudice.” United States v.
Quintero, 618 F.3d 746, 753 (7th Cir. 2010) (citation omitted).
Viewing the jury instructions as a whole, we do not believe
that the sentences in question were enough to prejudice Dorf-
man by confusing or misleading the jury. See United States v.
Clark, 140 F.4th 395, 413 (7th Cir. 2025).
First, as part of the jury instructions, the district court in-
formed the jury that it must find beyond a reasonable doubt
that “[t]he scheme to defraud involved a materially false or
fraudulent pretense, representation, or promise.” Dkt. 139 at
25. It also told the jury that “a scheme to defraud is a scheme
that is intended to deceive or cheat another and to obtain
money or property or cause the potential loss of money or
property to another by means of materially false or fraudulent
pretenses, representations or promises” and that “[a] materi-
ally false or fraudulent pretense, representation, or promise

10 No. 24-2275
may be accomplished by an omission or the concealment of
material information.” Id. at 27. Additionally, the court de-
fined what it means for a statement or omission to be “mate-
rial” and for Dorfman to act with “intent to defraud.” Id. at
30–31. And, even in the instruction Dorfman contests, the dis-
trict court’s recitation of the law was largely correct. The law
allows the jury to consider the circumstances in which the de-
fendants’ words and statements were used, and the defend-
ants’ actions “can constitute a scheme to defraud even if there
are no specific false statements involved.”
Dorfman’s conduct, as depicted by the trial evidence, falls
comfortably within these sound instructions. Girouard testi-
fied that she agreed with Dorfman and Sand to engage in “de-
ceptive sales practices” so that “[c]onsumers on the phone
would be deceived with the scripts that were read.” Dkt. 171
at 13. She added that, even though the scripts were technically
true, they were designed to create the false impression that
the limited benefit plans sold by Simple Health covered more
medical services and paid larger portions of the customers’
medical bills than they actually did. Furthermore, a Simple
Health sales manager testified that HII expressed concern that
the company’s sales script omitted specific references to the
limited indemnity plan’s maximum benefits and falsely
stated that the plans had “no limits” that would result in sav-
ings of “70%” or “up to 70%.”
Dorfman himself had been told many times by Girouard
that the sales scripts elided material facts, such as the plan’s
lack of an out-of-pocket maximum. And he was aware of HII’s
objection to the claim that the plans would save customers
“up to 70%.” Moreover, Dorfman had the final say over the
script’s content and knew that, when HII representatives

No. 24-2275 11
came to Simple Health, they were shown an HII-approved
script that was different from the one that Dorfman had ap-
proved for use. See Dkt. 172 at 145; Gov’t Ex. 449 (notifying
Dorfman that the reason a different script was being used was
that HII was visiting).
The trial evidence also shows that the materiality of the
false statements and omissions were not lost on Dorfman. The
daily reports he received about the number of customers can-
celling their plans routinely indicated that customers felt mis-
led about the scope of the plan’s benefits. This was confirmed
at trial by victims who testified that they were deceived into
believing that the limited indemnity plans provided much
more than they actually did.
As the jury instructions correctly explained, such material
falsehoods and omissions fall within the heartland of the
fraudulent activities the wire and mail fraud statutes prohibit.
Accordingly, we do not believe that the two statements Dorf-
man highlights were sufficient to mislead or confuse the jury
into convicting him of innocent conduct.
B. Exhibit 10
After closing arguments, the district court provided the
jury with a number of trial exhibits for use in its deliberations.
Among them was Exhibit 10—a two-hour video of a training
session Dorfman conducted for Simple Health’s salesforce.
According to Dorfman, providing Exhibit 10 to the jury was
prejudicial error, because (1) it was never admitted in evi-
dence, and (2) even if it were admitted, the exhibit was never
discussed by a witness or shown to the jury during the trial.
Because Dorfman raised the first objection (albeit, briefly) in
his motion for a new trial, we review the district court’s ad-

12 No. 24-2275
mission of Exhibit 10 for abuse of discretion. United States v.
Edwards, 161 F.4th 1033, 1099 (7th Cir. 2025). As for the second
objection , because he raises this argument for the first time on
appeal, we review the district court’s decision for plain error.
United States v. Mikulski, 35 F.4th 1074, 1077 (7th Cir. 2022).
On the fourth day of trial, Federal Trade Commission In-
vestigator Roberto Menjivar testified that some of Simple
Health’s computers were inventoried and that he had partici-
pated in a review of the images they contained. At this point,
the prosecutor announced in open court:
I’m going to read ... Stipulation Number 2. The gov-
ernment exhibits listed below are true and correct cop-
ies of documents, presentations, and recordings that
were forensically extracted from computers and serv-
ers identified below. These documents are business
records of Simple Health. These records were prepared
by employees of Simple Health, who had a business
duty to create the records. These records were pre-
pared in the ordinary and usual course of Simple
Health’s regularly conducted business activities, and it
was the regular practice of Simple Health to keep such
records. And then specifically I’m going to be referring
to Government’s 5, 6, and 7, 9, 10, and 12. And for the
witness only, if we could pull up Exhibit Number 5.
Dkt. 159 at 152. The prosecutor and Menjivar then discussed
Exhibit 5.
Just as the prosecutor was moving to Exhibit 6, Matthew
Radefeld (Sand’s attorney) interjected, “[I]f I may, if we’ve al-
ready stipulated to Exhibits 5, 6, and 7, just not object to their
admission and move along from here.” Id. at 153. The district

No. 24-2275 13
court replied, “Yeah,” and the prosecutor stated, “I’ll move
those exhibits, Your Honor, and if they’re admitted, that will
complete my examination.” Id. The district court replied, “All
right. They’re admitted.” Id. Defense counsel did not object to
the admission of Exhibit 10 at the time. Moreover, the district
court later entered a minute order indicating that Exhibit 10
was one of the exhibits that had been admitted in evidence
that day, and again defense counsel offered no objection.
Ultimately, Exhibit 10 was never used at the trial or pub-
lished to the jury. The exhibit, however, was provided to the
jury during their deliberations, and one juror apparently told
Dorfman’s counsel after the trial that the exhibit had impacted
the jury’s verdict. Thus, we are faced with two questions.
First, did the district court abuse its discretion when deeming
Exhibit 10 admitted as evidence? Second, did the district court
plainly err when providing the exhibit to the jury even though
it had not been used during the trial?
The first question is answered by the record. The prosecu-
tor stated that he was reading a stipulation into the record
whereby the parties agreed to the foundational facts to admit
various exhibits, including Exhibit 10. He then moved the ex-
hibits in evidence, and no one objected. Nor did anyone object
when the district court later included Exhibit 10 as an exhibit
admitted in evidence. Based on this record, the district court
did not abuse its discretion by admitting Exhibit 10 in evi-
dence.
The second question—whether the district court erred by
providing the jury with an exhibit that was formally admitted
in evidence but not used during the trial—is a closer call. As
a general matter, “[t]he district court has broad discretion
when considering what evidence to permit in the deliberation

14 No. 24-2275
room when exhibits are properly admitted at trial.” United
States v. Marchan, 935 F.3d 540, 548 (7th Cir. 2019) (citing
United States v. Biggs, 491 F.3d 616, 623 (7th Cir. 2007)). Such
discretion includes excluding exhibits that neither party re-
lied on, that are not relevant to the issues in the case, or that
are cumulative, prejudicial, confusing, or misleading. See Dei-
cher v. City of Evansville, 545 F.3d 537, 542 (7th Cir. 2008).
We must be mindful, however, that in criminal proceed-
ings, this discretion is circumscribed by a defendant’s consti-
tutional rights. In Turner v. Louisiana, for example, the Su-
preme Court explained that “[t]he requirement that a jury’s
verdict ‘must be based upon the evidence developed at the
trial’ goes to the fundamental integrity of all that is embraced
in the constitutional concept of trial by jury.” 379 U.S. 466, 472
(1965). “In the constitutional sense,” the Supreme Court con-
tinued, “trial by jury in a criminal case necessarily implies at
the very least that the ‘evidence developed’ against a defend-
ant shall come from the witness stand in a public courtroom
where there is full judicial protection of the defendant’s right
of confrontation, of cross-examination, and of counsel.” Id. at
472–73. And, as we have recognized, “[t]he corollary of this is
that the jury, in reaching its verdict, has a duty to consider
only that evidence which is presented in open court, and not
that which comes from outside sources.” United States v. Neff,
10 F.3d 1321, 1326 (7th Cir. 1993).
As noted, because Dorfman did not make this argument
to the district court, we review the court’s decision to provide
Exhibit 10 to the jury for plain error. Under plain error review,
“we ask (1) did the district court err, (2) was the error plain,
(3) did it affect [the defendant’s] substantial rights, and (4) did
it seriously affect the fairness, integrity, or public reputation

No. 24-2275 15
of the proceedings?” United States v. Coleman, 138 F.4th 489,
500 (7th Cir. 2025) (citations omitted). For an error to affect
substantial rights, it must be prejudicial, “which means that
there must be a reasonable probability that the error affected
the outcome of the trial.” United States v. Marcus, 560 U.S. 258,
262 (2010) (citation omitted).
Neither party presented Exhibit 10 to a witness at trial, nor
was the exhibit published to the jury. But the prosecutor did
offer Exhibit 10 in evidence during the trial, and Dorfman had
an opportunity to object to its admission (even if he failed to
do so). Whether this would satisfy Dorfman’s constitutional
right of confrontation, cross-examination, and a fair trial is
unclear. Nor have the parties adequately addressed this issue
in their briefs. Given the record here and the lack of clear au-
thority, we conclude that the district court’s decision to pro-
vide Exhibit 10 to the jury does not rise to plain error.
That said, even assuming that the district court’s decision
to provide the jury with Exhibit 10 was error and the error
was plain, Dorfman has not shown “a reasonable probability
that the error affected the outcome of the trial.” Marcus, 560
U.S. at 262 (citation omitted). On the one hand, Dorfman is
correct that many of his statements captured on the video are
inculpatory. For example, it shows Dorfman telling the new
employees that he was a “puppeteer” and that the customers
were “puppets” and “mostly stupid.” Gov’t Ex. 10 at 38:00,
1:49:10. Dorfman also tells the salespeople to emphasize that
the savings will be “up to” 70%, even if it will actually be less,
because “[w]e know the truth behind it.” Id. at 1:10:26.
But the video contains many exculpatory statements as
well. At one point, Dorfman states that the goal for his com-
pany is to “provide superior customer satisfaction to create

16 No. 24-2275
long lasting relationships with [his] customers.” Id. at 3:52.
When a trainee states that he can tell a customer that the plan
will take off “70%” of the cost, Dorfman corrects him, explain-
ing that employees must not forget the “up to” language be-
cause of “the law.” Id. at 1:06:30. “But you have to legally put
that ‘up to’ on there,” he explained, “otherwise you’re lying
and that’s one thing that we don’t do here. We don’t lie. ... We
always keep it honest.” Id. at 1:07:29.
Furthermore, much of the facts in the video were cumula-
tive; the record is replete with other evidence of Dorfman’s
knowing and active role in perpetrating the fraudulent
scheme. For instance, the government presented evidence
that Dorfman knew that many customers were calling to com-
plain (sometimes through tears) that the plan did not cover
their high medical bills, contrary to what they had been told.
Gov’t Ex. 335. Girouard testified that he informed Dorfman
on numerous occasions that the scripts left out important
facts, such as the plan’s lack of an out-of-pocket maximum.
And, according to Kirschner Alteme, a sales manager for Sim-
ple Health, it was Dorfman who had approved the “no limits”
and “up to 70%” language in sales scripts, and he received
daily cancellation reports of customers who complained that
they had been deceived. The trial evidence also showed that
Dorfman changed the sales scripts whenever HII representa-
tives visited the offices. This is more than enough evidence for
a reasonable jury to conclude that Dorfman committed mail
and wire fraud and conspiracy to commit fraud.
For all of these reasons, Dorfman has failed to demonstrate
that the district court’s decision to provide Exhibit 10 to the
jury was plainly erroneous.

No. 24-2275 17
C. Constructive Amendment and Unanimity Instruction
Dorfman’s final two arguments challenge what he de-
scribes as a second scheme introduced at trial. As he sees it,
the indictment charged him with one scheme—defrauding
his customers—but at trial, the government also presented ev-
idence of a different scheme—defrauding regulators. This, he
argues, amounted to a constructive amendment of the indict-
ment in violation of his constitutional rights. On top of this,
he adds, because the government alleged two different
schemes, the district court should have provided the jury with
a specific unanimity instruction to ensure that the jury unani-
mously finds him guilty of the same scheme. See United States
v. Davis, 471 F.3d 783, 791 (7th Cir. 2006) (explaining that a
specific unanimity instruction should be given where the in-
dictment alleges multiple schemes so that a jury is aware that
it must be unanimous on at least one of the schemes). Because
Dorfman failed to raise these arguments below, we again re-
view for plain error.
A constructive amendment to an indictment is constitu-
tionally problematic because “[t]he Fifth Amendment’s
Grand Jury Clause provides that a defendant cannot be tried
on charges that are not made in the indictment.” United States
v. Griffin, 76 F.4th 724, 736 (7th Cir. 2023). “A constructive
amendment of an indictment occurs when the evidence at
trial goes beyond the parameters of the indictment in that it
establishes offenses different from or in addition to those
charged by the grand jury.” United States v. Chaoqun, 107 F.4th
715, 727 (7th Cir. 2024) (quoting United States v. Shields, 789
F.3d 733, 742 (7th Cir. 2015)).
To constitute a constructive amendment, “the crime
charged in the indictment must be materially different or sub-

18 No. 24-2275
stantially altered at trial, so that it is impossible to know
whether the grand jury would have indicted for the crime ac-
tually proved.” Id. (citation modified). That said, “[e]vidence
presented at trial that is different from that included in the
indictment or presented to the grand jury does not constitute
a constructive amendment of the indictment when the new
evidence does not result in a different offense.” Id.
Here, the government did not present a second scheme at
trial, as Dorfman contends. To be sure, the government did
introduce evidence that Dorfman “cover[ed] up what was re-
ally going on” from HII, the state directors of insurance, and
the Better Business Bureau. Dkt. 178 at 178–79. But this evi-
dence was introduced to establish Dorfman’s knowledge and
intent to defraud his customers—the focus of the govern-
ment’s case. As we have said, it is “long recognized that a de-
fendant’s attempt to conceal a crime is probative of a con-
sciousness of guilt.” United States ex rel. Foster v. DeRobertis,
741 F.2d 1007, 1013–14 (7th Cir. 1984); see United States v.
Jarigese, 999 F.3d 464, 470 (7th Cir. 2021) (stating that efforts to
conceal a defendant’s unlawful actions is “direct evidence of
the scheme charged”).
Indeed, the government consistently took the position
throughout the case and in its closing argument that the vic-
tims of Dorfman’s fraudulent scheme were Simple Health’s
customers. See, e.g., Dkt. 178 at 152 (expressing that the “evi-
dence showed” that “the victims in this case were misled
about the limited indemnity plans that they bought from”
Simple Health); id. at 154 (referring to customers who testified
as witnesses as “victims”); id. at 180 (describing customers as
“the victims you heard from the last two weeks”); id. at 220
(referencing customers as “these victims”); id. at 222 (same).

No. 24-2275 19
In response, Dorfman points to the “materiality” jury in-
struction, which states that a false or fraudulent pretense, rep-
resentation, promise, omission, or concealment is “material”
if it is capable of influencing the decision of the “person or en-
tity to whom it was addressed.” Dkt. 139 at 30 (emphasis
added). The “or entity” language, Dorfman posits, could have
misled the jury into believing they could convict Dorfman for
a scheme to defraud HII or regulators. But this is an overly
myopic reading of the jury instructions.
Although the materiality instruction does include refer-
ence to “entity,” the instructions that lay out the substantive
elements of mail fraud and wire fraud both describe the rele-
vant “scheme to defraud” as the scheme “described in Count
1.” In much the same way, when defining a “scheme to de-
fraud,” the relevant instruction references “the portion of the
indictment [that is, Count 1] describing the scheme.” Count 1,
in turn, portrayed the various ways that Simple Health’s sales
staff deceived customers, noting that the company “sold
health insurance products to more than 400,000 individuals”
and that “[t]he victims were located in all fifty of the United
States.” Dkt. 2 at 9 (emphases added). Finally, when defining
the word “knowingly,” the court instructed the jury that “the
defendant acted knowingly if you find beyond a reasonable
doubt that he believed it was highly probable that customers
of Simple Health were being deceived.” Dkt. 139 at 24 (em-
phasis added).
Simply put, Dorfman’s argument that the government
pursued a fraud theory different from what the indictment
described finds no support in the record. And it follows from
this that a specific unanimity instruction was unnecessary.

20 No. 24-2275
* * *
For these reasons, the judgment is AFFIRMED.