United States of America v. Abidemi Ajayi

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐2183
U NITED STATES OF A MERICA ,
Plaintiff‐Appellee,
v.
A BIDEMI A JAYI ,
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.
____________________
A RGUED MAY 21, 2015 — D ECIDED D ECEMBER 11, 2015
____________________
Before W OOD, Chief Judge, and R OVNER 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.

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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‐

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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.

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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.

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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

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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)

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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

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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‐

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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.

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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‐

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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,

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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‐

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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.

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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.

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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

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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.

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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

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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‐

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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

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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 R EMAND this case
to the district court for resentencing. We A FFIRM all other is‐
sues raised on appeal.

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