                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 03-3266
UNITED STATES OF AMERICA,
                                               Plaintiff-Appellee,
                                v.
ALFY STIGLER,
                                           Defendant-Appellant.
                         ____________
         Appeal from the United States District Court for
        the Northern District of Illinois, Eastern Division.
          No. 03 CR 349—Suzanne B. Conlon, Judge.
                         ____________
      ARGUED JUNE 17, 2004—DECIDED JUNE 27, 2005
                     ____________




  Before FLAUM, Chief Judge, and MANION and WILLIAMS,
Circuit Judges.
  WILLIAMS, Circuit Judge. A jury convicted Alfy Stigler of
conspiring to make and possess counterfeit checks, and of
possessing two counterfeit checks. He appeals his conviction
arguing that there was a fatal variance between the
indictment and the evidence presented at trial and that he
was prejudiced by the variance. We agree, and for the
reasons stated reverse his conspiracy conviction. We leave
undisturbed his convictions on the two specific checks and
remand for further proceedings consistent with this opinion.
2                                               No. 03-3266

                     I. Background
   Alfy Stigler, Richard Young, Shaun Cross, and Allentino
Hayson were charged in a four-count indictment relating to
three forged and counterfeit checks that were cashed in
May of 2000. Count I alleged a single conspiracy among all
four defendants to cash forged and counterfeit checks, in
violation of 18 U.S.C. §2 and §371. Counts II and III alleged
that Stigler and Young uttered, possessed and cashed two
of the checks in violation of 18 U.S.C. §2 and §513(a). Count
IV alleged that Young, Cross, and Hayson uttered, pos-
sessed and cashed the remaining check. The three counter-
feit checks were each stolen from a mail route in Alsip,
Illinois. Those checks were: (1) a $65,082.53 check from
S&G Packaging; (2) a $77,313.56 check from Ulbrich of
California; and (3) a $53,332.75 check from Ulbrich of
Illinois.
  Young altered the check from S&G Packaging to be made
payable to Stigler. Stigler deposited the $65,082.53 check
into his Citibank account and later withdrew $60,000. He
purchased a $20,000 cashier’s check payable to Young and
kept the remaining $40,000 for himself. Young deposited
the $20,000 cashier’s check into his own Citibank account
and later withdrew $8,000 cash for his own benefit.
  Citibank contacted Stigler when the counterfeit check
failed to clear. Stigler had already spent $30,000 on a used
Lexus, but was able to return the remaining $10,000 to the
bank. Young claimed that he returned the $8,000 he with-
drew to the bank as well.
  Stigler passed the Ulbrich of California check to his
friend, Tony Fed. Fed owned and operated Faith & Grace
Trucking, and Stigler gave Fed the check, which Young
altered to be made payable to Faith & Grace Trucking. Fed
deposited the check into his TCF bank account and later
withdrew $10,000, which he split evenly with Stigler. Fed
also wrote two checks on his account: one in the amount of
No. 03-3266                                                    3

$20,000 made out to Stigler, and the other in the amount of
$10,839 made out to the trustee of his bankruptcy case. His
later attempt to withdraw $33,000 in cash was unsuccessful
as TCF Bank had already frozen his account.
  As for the check from Ulbrich of Illinois, Shaun Cross
approached Allentino Hayson and explained that he “knew
a guy that could get some checks and put it in people names
[sic]” and that the “guy” would receive 60 percent of the
proceeds while the person who deposited the check would
receive 40 percent, and Cross would earn “a couple of
thousand” for the referral. Hayson agreed to the scheme
and deposited the Ulbrich of Illinois check, which Young
altered to be made payable to Hayson, into his TCF bank
account, but all attempts to withdraw the proceeds failed.
  Young, Stigler and Cross were tried together before a jury
in June 2003.1 Fed was charged with the offense of forgery
in the Circuit Court of Cook County, Illinois for passing the
Ulbrich of California check. He pled guilty to the charge,
received a sentence of 24 months probation, 20 days commu-
nity service, and a $2,000 fine, and then agreed to testify in
the federal trial against all three in exchange for immunity
from federal prosecution.
  At trial, Fed testified that he knew Stigler from the
Chicago Water Department, where they had worked to-
gether until 1999, when Fed left to open a trucking busi-
ness, Faith & Grace Trucking. According to Fed, he was in
difficult financial straits in early 2000, and was struggling
to pay creditors in a personal bankruptcy he had filed in
1997. Fed testified that Stigler called him in May 2000, and
offered him a way to make some money. Stigler told him
that he would send him a counterfeit check. According to
Fed, he would receive $15,000; $25,000 would go to Stigler,


1
  A bench warrant was issued for Hayson after he failed to appear
at his arraignment.
4                                               No. 03-3266

and the rest to “this Rick or Rich guy.” Fed then proceed to
testify in detail as to how he and Stigler cashed the Ulbrich
of California check and split the proceeds. Importantly,
nowhere in his testimony did Fed indicate that he had any
knowledge of the S&G or Ulbrich/Illinois checks. He did not
testify that he had agreed or was aware of any agreement to
create or deposit counterfeit checks other than the Ulbrich
of California check. He flatly denied knowing Young and
Hayson.
   The government’s other main witness was Earnest
Campbell, one of Hayson’s acquaintances. Campbell testi-
fied that Cross initially approached him in May 2000,
before Cross contacted Hayson, and offered him the same
deal Cross offered Hayson. Campbell testified that he de-
clined the offer, but that Hayson kept him abreast of his
dealings with the counterfeit check, informing Campbell of
his decision to cash the counterfeit check and subsequently
showing him a copy of the deposit slip. Campbell did not
offer any testimony regarding Stigler, Fed, Young or the
other counterfeit checks.
  Finally, Postal Inspector John Donnelly testified that he
reviewed the defendants’ phone records, and the records
revealed a high volume of phone calls between both Stigler
and Fed, and Stigler and Young, but showed only a single
phone call from Stigler’s residence to Cross—a phone call
that Young’s unrebutted testimony at trial indicated he
could have made. Likewise, the records did not reflect any
phone calls between Stigler and Campbell or Stigler and
Hayson. Figure 1 below summarizes Inspector Donnelly’s
findings regarding the calls placed between the alleged co-
conspirators between May 19, 2000 and June 9, 2000.
No. 03-3266                                                5




  Finally, the district court admitted a taped conversation
between Cross and Campbell at trial, in which the two
talked about Hayson, referred to the Ulbrich of Illinois
check, discussed drugs and women, and made insensitive
remarks regarding the September 11, 2001 attacks on the
World Trade Center. The district court admitted this tape
against all of the alleged co-conspirators with the following
limiting instruction:
    During the trial you heard about statements
    made by a person who the prosecutors assert is a
    defendant’s fellow conspirator. You may consider
    these statements when you decide whether a par-
    ticular defendant joined the conspiracy. Please re-
    member, however, that only a defendant’s own
    words and own acts show whether he joined the
    alleged conspiracy. You, therefore, should use
    statements by the other person to help you decide
    what a defendant did or said or to help you under-
    stand the defendant’s acts for [sic] words.
At the close of the government’s case, no direct evidence
connected Stigler to the Ulbrich of Illinois check.
 On June 13, 2003, the jury convicted Cross and Stigler of
Count I. The jury could not reach a consensus with respect
6                                                   No. 03-3266

to Young, so the district court declared a mistrial as to
Young.2 The jury also convicted Stigler and acquitted Young
of Counts II and III, and convicted Cross of Count IV.
Stigler moved for acquittal on Count I and for a new trial as
to Counts II and III; the district court denied both motions.
  At sentencing the district court judge increased Stigler’s
base offense level by three levels under U.S.S.G. § 3B1.1(b)
for his “supervisory” role in a five-person conspiracy. This
enhancement increased the applicable sentencing range
from 21-27 months to 30-37 months and resulted in Stigler
receiving a 30-month sentence.


                          II. Analysis
  On appeal, Stigler contends that there is a fatal variance
between the allegations supporting Count I of the indict-
ment and the facts established by the government at trial.
Stigler also argues that the district court erred in admitting
prejudicial evidence admissible solely against other defen-
dants against him which undermined the validity of his
convictions on Counts II and III. Finally, Stigler argues
that the district court erred in its restitution order at
sentencing. We will address each of Stigler’s arguments in
turn.


A. Variance
  Stigler argues that the indictment charged a single over-
arching conspiracy involving Stigler, Young, Fed, Cross, and
Hayson but the government failed to establish a single
overarching conspiracy. Stigler contends that at most the
government established the existence of two conspiracies,
one with Young, Fed, and Stigler, and another with Young,
Cross, and Hayson.


2
    Young was later retried and convicted of Count I.
No. 03-3266                                                  7

  A variance arises when the facts proved by the govern-
ment at trial differ from those alleged in the indictment.
See generally United States v. Miller, 471 U.S. 130 (1985).
“[A] conspiracy variance claim amounts to a challenge to
the sufficiency of the evidence supporting the jury’s finding
that each defendant was a member of the same conspiracy.”
United States v. Townsend, 924 F.2d 1385, 1389 (7th Cir.
1991). Accordingly, Stigler “can succeed on his variance
claim only if he can establish that the evidence at trial was
insufficient to support the jury’s finding of a single conspir-
acy and that he was prejudiced by the variance.” United
States v. Payne, 226 F.3d 792, 795 (7th Cir. 2000). We find
that Stigler has met this burden.
  A conspiracy exists where “(1) two or more people agreed
to commit an unlawful act and (2) the defendant knowingly
and intentionally joined in the agreement.” United States v.
Gardner, 238 F.3d 878, 879 (7th Cir. 2001). Coconspirators
“must be mutually dependent on one another . . . or must
render mutual support.” Townsend, 924 F.2d at 1392. The
government, however, need not “prove with whom a defen-
dant conspired; it need only prove that the defendant joined
the agreement alleged, not the group.” Id. at 1389.
  Here, there is insufficient evidence to establish the exis-
tence of a single overarching conspiracy. Indeed, the only
evidence that links Stigler to a larger conspiracy is a single
phone call placed from his residence to Cross—a phone call
that Young testified that he could have made. There is no
evidence of what was said in this phone call, and no evi-
dence that Stigler made this phone call. In addition, there
was no evidence presented at trial that suggests that
Stigler, Cross or Hayson knew each other, or that Stigler
knew that a third check even existed, and nothing in
evidence suggests that Stigler stood to profit in any way
from the third check.
  The government argues that Fed’s testimony that Stigler
told him that he knew a guy who dealt in “checks” suggests
8                                                No. 03-3266

that Stigler was aware that the conspiracy involved multi-
ple checks. But the government makes too much of the use
of the plural “checks,” as this reference could have been an
allusion to the two checks deposited by Stigler. Moreover,
even if Stigler did know that Young had dealings in counter-
feit checks with Cross and Hayson, that alone would be
insufficient to establish that he conspired with them. This
court has made clear that it will not presume that a
defendant agreed to work for the benefit of others solely
because he knows they exist. See Townsend, 924 F.2d at
1391 (analogizing a conspiracy to a wheel with spokes and
a hub and noting that “mere knowledge of the hub’s activi-
ties, or those of the other spokes, is not enough to tie the
conspiracy together”); Kotteakos v. United States, 328 U.S.
750, 755 (1946) (internal quotation and citation omitted)
(noting, in a case involving an individual who processed
numerous fraudulent loan applications, that “thieves who
dispose of their loot to a single receiver—a single ‘fence’—do
not by that fact alone become confederates: they may, but
it takes more than knowledge that he is a ‘fence’ to make
them such”). Given the dearth of evidence on this issue, we
cannot say that a reasonable juror would have found that a
single overarching conspiracy existed.
  Our finding that there was a fatal variance between the
indictment and the evidence presented at trial is necessary,
but not sufficient to overturn Stigler’s conviction. Stigler
must also have been prejudiced by the variance. Townsend,
924 F.2d at 1390. Nonetheless, we find that Stigler was
prejudiced by the variance because he was subject to
greater punishment as a result of the variance—
the district court increased Stigler’s offense level by three
levels from 15 to 18, pursuant to Sentencing Guideline
§ 3B1.1(b), for supervising a conspiracy with five or more
participants. Since we find that Stigler was prejudiced by
the variance, we reverse Stigler’s conviction as to the
No. 03-3266                                                9

conspiracy count and we need not address the question of
whether the jury’s verdict on Count I was affected by the
prejudicial hearsay.
  Stigler also argues that validity of his convictions on
Counts II and III was compromised when the district court
admitted prejudicial evidence, admissible solely against
Cross and Hayson, against him. We disagree and decline
Stigler’s invitation to reverse his convictions as to the
non-conspiracy counts. The affect of the prejudicial evidence
admitted against Stigler was minimal based on the district
court’s limiting instruction to the jury and because the
evidence properly admitted against Stigler, specifically
Stigler’s co-conspriator Fed’s testimony, was overwhelming
and sufficient to convict Stigler on Counts II and III.


B. Restitution
  Finally, we turn to Stigler’s argument that the district
court erred by not holding the defendants jointly and
severally liable and by ordering $38,000 in restitution to
Citibank, where Citibank’s correct actual loss was about
$30,000. At oral argument, the government conceded that
the district court erred in both respects, and we agree. The
“total amount of restitution ordered cannot exceed the
amount of the loss actually caused.” United States v. Trigg,
119 F.3d 493, 500 (7th Cir. 1997). By ordering each
defendant—Cross, Young, and Stigler—to restitution with-
out holding the defendants jointly and severally liable, the
district court ordered restitution greater than the loss.
Similarly, the district court erroneously determined the
amount of restitution due to Citibank. At trial, a Citibank
official testified that its total loss was about $30,000, in
contrast to the $38,000 ordered by the district court. This
testimony is consistent with Young’s testimony that he
returned $8,000 to Citibank. Given the government’s
concession at oral argument that Citibank suffered a
10                                               No. 03-3266

$30,000 loss and the absence of any evidence to the contrary
at trial, we find that the district court also erred in deter-
mining the appropriate amount of restitution.


                     III. Conclusion
  For the foregoing reasons, we REVERSE Stigler’s conviction
as to Count I, VACATE his sentence in its entirety and
REMAND for further proceedings consistent with this
opinion.

A true Copy:
       Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—6-27-05
