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

No. 06-1960
UNITED STATES OF AMERICA,
                                               Plaintiff-Appellee,
                                v.

TRACY RATLIFF-WHITE,
                                           Defendant-Appellant.
                         ____________
           Appeal from the United States District Court
      for the Northern District of Illinois, Eastern Division.
       No. 04 CR 10—James F. Holderman, Chief Judge.
                         ____________
   ARGUED NOVEMBER 28, 2006—DECIDED JULY 10, 2007
                   ____________


 Before FLAUM, MANION and WILLIAMS, Circuit Judges.
  WILLIAMS, Circuit Judge. In 2002, Tracy Ratliff-White,
a veteran with disabling post-traumatic stress disorder,
established a fictitious healthcare company to defraud
the government. Ratliff-White and her co-defendant,
Dorothy Norwood, bilked the Veterans Administration for
$32,100 in companion care services that were never
provided. The VA electronically deposited the money
into the defendants’ bank account, and after the scheme
came to light, the defendants were indicted and ultimately
convicted of two counts of wire fraud.
  Ratliff-White now appeals, contending that her wire
fraud convictions must be reversed because the VA
deviated from the standard electronic multi-step payment
2                                              No. 06-1960

process charged in the indictment. We understand her to
argue that this deviation amounted to a fatal variance
between the fraud alleged in the indictment and that
proved at trial. But, we disagree. Although Count One
pinpointed one step in the July payment process, and the
proof established another, that variance was harmless, so
we affirm on Count One. We also affirm on Count Two
because there was ample evidence that payment instruc-
tions were transmitted in August 2002, as charged in
that count.


                   I. BACKGROUND
  In November 2001, Ratliff-White asked Hines Veterans
Administration Hospital (“Hines VA”) located near Chi-
cago, Illinois to provide her with 24-hour companion care
to help cope with recurring flashbacks associated with
her post-traumatic stress disorder. Because Hines VA did
not have sufficient resources to provide that level of care,
it hired or attempted to hire private care-taking compa-
nies. Two different companies contracted with the VA to
provide companion-care services to Ratliff-White, but
finding her a difficult client, both companies terminated
their contracts with the VA after one month. A third
company declined to provide services after an initial
meeting with Ratliff-White, and Hines VA then told her
she would have to locate appropriate companion-care
services on her own.
  In April 2002, Ratliff-White approached Dorothy
Norwood, an employee of one of the home health care
companies that had previously provided services to Ratliff-
White, about forming a care-taking company called
Compassionate Home Health Services (“CHHS”). Ratliff-
White appointed herself president of CHHS, responsible
for hiring employees and handling invoices and employee
time sheets, and offered Norwood the position of vice
president. Ratliff-White explained that as vice president,
No. 06-1960                                             3

Norwood would handle all communications with Joseph
Rio, an administrator at Hines VA, because Rio would
recognize Ratliff-White’s voice. In return, she promised
Norwood a $2,000 monthly salary and access to a company
car. After accepting the position, Norwood called Rio at
Hines VA, introduced herself as vice president of CHHS
and offered to provide companion care services to Ratliff-
White at particular hourly rates. Rio agreed to Norwood’s
terms, and their agreement was memorialized in a con-
tract prepared by Ratliff-White.
  Over the next several months, Ratliff-White prepared
and Norwood faxed to Hines VA invoices and time sheets
purportedly reflecting services performed by CHHS
employees. But the individuals identified on the time
sheets were never employed by CHHS and no services
were ever performed. According to Norwood’s daughter,
who occasionally assisted in typing invoices and time
sheets, Ratliff-White once confided that some of the
names on the time sheets were “made-up” and that the
services on the time sheets and invoices had not been
performed.
  Relying on the false time sheets and invoices, in July
and August 2002, the VA authorized the electronic
transfer of a total of $32,100 to a bank account jointly
owned by Ratliff-White, Norwood, and Norwood’s daugh-
ter. Because several events caused Rio to question CHHS’s
legitimacy, the VA terminated its contract with CHHS
in August 2002. That October, the Office of the Inspector
General for the VA searched Ratliff-White’s apartment
in Aurora, Illinois and found CHHS’s bogus time sheets,
invoices, and tax-related information.
  For their activities, Ratliff-White and Norwood were
ultimately indicted for committing mail fraud in violation
of 18 U.S.C. § 1343. Count One charged that on or about
July 16, 2002, Ratliff-White and Norwood “knowingly
caused to be transmitted in interstate commerce from
4                                             No. 06-1960

Hyattsville, Maryland to Dallas, Texas, by means of wire
communication . . . payment instructions for $22,470 in
funds intended for Compassionate Home Health Services,
from the United States Department of the Treasury,
Hyattsville, Maryland to the Federal Reserve Bank in
Dallas, Texas . . . .” Count Two charged that on or about
August 15, 2002, Ratliff-White and Norwood “knowingly
caused to be transmitted in interstate commerce from
Hyattsville, Maryland to Dallas, Texas by means of wire
communication . . . payment instructions for[ ]$9,150 in
funds intended for Compassionate Home Health Services,
from the United States Department of the Treasury,
Hyattsville, Maryland to the Federal Reserve Bank in
Dallas, Texas . . . .”
   To prove that the transmission of payment instruc-
tions had in fact occurred on the dates charged, the
government called Alice Merculief, a United States
Treasury representative, who explained the standard
procedure for electronically depositing funds into the
accounts of VA vendors like CHHS. According to Merculief,
the VA’s processing center in Austin, Texas (“VA Austin”)
first submitted payment files to the Treasury’s mainframe
computer in Hyattsville, Maryland (“Treasury Hyattsville”)
where the payment files were validated. Next, Treasury
Hyattsville sent a “pre-edit” report to the Treasury’s
remote financial center in Austin, Texas (“Treasury Aus-
tin”), which certified the payment. Then, Treasury Austin
formatted the payment request and transmitted it from
the Treasury’s mainframe at Treasury Hyattsville to the
Federal Reserve Bank in Dallas, Texas (“Federal Reserve
Dallas”). Finally, Federal Reserve Dallas ensured the
deposit of funds into the appropriate vendor account.
  Merculief also authenticated records from the Treasury’s
database reflecting that, on behalf of the VA, the Treasury
had paid CHHS $22,470 on July 16, 2002, and $9,150 on
August 15, 2002. Merculief testified that instructions
regarding each payment would have been transmitted
No. 06-1960                                                5

from Treasury Hyattsville to Federal Reserve Dallas. She
acknowledged, however, that the records did not document
the multi-step transmission of payment instructions
between VA Austin, Treasury Hyattsville, Treasury
Austin, and Federal Reserve Dallas.
  Rio testified that the standard procedure was not
followed in making the July 16, 2002 payment at issue
in Count One. He said that because Norwood represented
that she needed to pay CHHS employees right away, “[w]e
worked it out what we called paid out of off line, which
allowed us to deal with our Finance Department to pay
and actually send an electronic payment, which is re-
ceived within three days, to that particular vendor and
that was done . . . .” Rio acknowledged on cross-examina-
tion that Hines VA’s fiscal department “did not use the
usual procedure of notifying the VA’s payment center in
Austin and having them send the funds.” He could not
describe the “off line” process in detail, and did not know
how Hines VA’s fiscal department was able to override
the traditional three to four week payment process be-
cause it was “not [his] department.” Merculief testified
that she was not at all familiar with the “off line” process.
   The jury also heard testimony that Ratliff-White be-
lieves portrayed her as a liar. First, during his testimony,
Rio mentioned that Ratliff-White had made prior re-
quests for services from the VA, including a request that
the VA pay for her to fly to Arlington, Virginia to attend
the alleged funeral of her fiancé. Rio explained that the
VA denied that request, finding that there was no one
in the military by the name Ratliff-White gave and that
no such individual had died or been buried in Arlington.
Ratliff-White did not object to this testimony. In addition,
the government cross-examined Ratliff-White’s treating
physician, Dr. Judi A. McInerney, in a manner suggest-
ing that Ratliff-White had fabricated her assault history.
The defense objected, saying that the questions as-
6                                              No. 06-1960

sumed matters not in evidence, and the court sustained
that objection.
  The jury convicted Ratliff-White on both counts, and
the court sentenced her to concurrent terms of 21 months’
incarceration and three years’ supervised release. In
addition, she was ordered to make restitution in the
amount of $32,100 to VA Hines, an obligation for which
she and Norwood were held jointly and severally liable,
and to pay a $100 special assessment on each count.
Ratliff-White now appeals her convictions.


                     II. ANALYSIS
A. Ratliff-White’s Sufficiency of the Evidence Chal-
   lenges
  Ratliff-White contends that the resolution of this ap-
peal primarily turns on two questions: (1) whether there
is sufficient evidence to support a finding that payment
instructions flowed from the Treasury in Hyattsville,
Maryland to the Federal Reserve Bank in Dallas, Texas
on the dates charged; and (2) whether those transmissions
were reasonably foreseeable. If not, she contends, both of
her convictions must be vacated.
  Defendants shoulder a heavy burden when lodging
sufficiency of the evidence challenges. To prevail, Ratliff-
White must show that when viewing all the evidence in
the light most favorable to the government, no rational
trier of fact could have found her guilty of the charges
beyond a reasonable doubt. United States v. Olson, 450
F.3d 655, 664 (7th Cir. 2006).
  A defendant commits wire fraud under 18 U.S.C. § 1343,
if she: (1) participates in a scheme to defraud; (2) in-
tends to defraud; and (3) causes a wire transmission in
furtherance of the fraudulent scheme. See 18 U.S.C.
No. 06-1960                                                      7

§ 1343;1 United States v. Radziszewski, 474 F.3d 480,
484-85 (7th Cir. 2007). A defendant can “cause” a wire
transmission without personally sending a transmission.
Am. Auto. Accessories, Inc. v. Fishman, 175 F.3d 534, 542
(7th Cir. 1999); United States v. Alexander, 135 F.3d 470,
474 (7th Cir. 1998). One “causes” a wire transmission by
acting with the knowledge that use of the wires will occur
in the ordinary course of business or where use of the
wires can be reasonably foreseen. Am. Auto. Accessories,
Inc., 175 F.3d at 542. The first and second elements of
wire fraud are not at issue in this case. Ratliff-White
maintains only that the government failed to satisfy
the third prong, claiming that the evidence established
neither the occurrence nor foreseeability of the transmis-
sion of payment instructions alleged in Counts One and
Two.


    1. Sufficiency of the Evidence on Count Two
  We start with simplest issue, Ratliff-White’s challenge to
the sufficiency of the evidence offered to prove the charges
alleged in Count Two.



1
    18 U.S.C. § 1343 provides:
      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 executing such scheme or artifice, shall be
      fined under this title or imprisoned not more than
      20 years, or both. If the violation affects a financial
      institution, such person shall be fined not more than
      $1,000,000 or imprisoned not more than 30 years, or
      both.
8                                            No. 06-1960

    a. Proof of a Wire Transmission
  Evidence that wire transmissions occur in the usual
course of business is ordinarily sufficient to show that a
particular wire transmission occurred on a given occasion.
See, e.g., Alexander, 135 F.3d at 474-75. However, if the
defendant counters with evidence that the party deviated
from its usual practice, the government can no longer
rely on standard procedure evidence to prove that a
particular wire transmission occurred. See, e.g., United
States v. Swinson, 993 F.2d 1299, 1300-02 (7th Cir. 1993).
  Here, the government maintains that Alice Merculief ’s
testimony describing the Treasury’s standard procedure
for processing payments on behalf of the VA proves that
instructions for the payment of $9,150 to CHHS flowed
from the Treasury in Hyattsville, Maryland to the Fed-
eral Reserve Bank in Dallas, Texas on August 15, 2002.
We agree. Because there was no evidence of deviation
from standard practice as to the August payment, the
government’s reliance on Merculief ’s testimony was
proper.


    b. Proof that Ratliff-White Knowingly Caused a Wire
       Transmission
  A defendant “knowingly causes” another to make a wire
transmission if the defendant knows that a wire transmis-
sion will occur in the ordinary course of business or
where the use of wires could be reasonably foreseen. See
Am. Auto. Accessories, Inc., 175 F.3d at 542; Alexander,
135 F.3d at 475. Ratliff-White contends that the govern-
ment failed to prove that the transmission of payment
instructions from Hyattsville to Dallas—an admittedly
obscure internal procedure—was foreseeable. Her argu-
ment misses the mark, however, because she overstates
the government’s burden.
No. 06-1960                                                   9

  To satisfy the causation element, the government need
only show that the defendant knew that some use of the
wires would follow. Our case law does not require that a
specific mailing or wire transmission be foreseen. See
Pereira v. United States, 347 U.S. 1, 8-9 (1954) (“Where
one does an act with knowledge that the use of the mails
will follow in the ordinary course of business, or where
such use can reasonably be foreseen, even though not
actually intended, then he ‘causes’ the mails to be used.”);
Am. Auto. Accessories, Inc., 175 F.3d at 542 (“Appellants
need not show that Fishman himself utilized the mail or
wire services, but only that he caused the mail or wire
services to be used by acting with the knowledge that
their use would ‘follow in the ordinary course of business,
or where such use [could] reasonably be foreseen.’ ”);
Alexander, 135 F.3d at 474-75 (“It is not necessary that
Alexander himself utilized the mails. It is instead suffi-
cient if he caused the mails to be used, which he would do
by acting ‘with the knowledge that the use of the mails
will follow in the ordinary course of business, or where
such use can reasonably be foreseen.’ ”); United States v.
Hickok, 77 F.3d 992, 1004 (7th Cir. 1996) (“The ‘use of
the mails’ element is satisfied if a defendant ‘knowingly
causes the mails to be used in furtherance of a scheme to
defraud.’ ”); see also United States v. Pimental, 380 F.3d
575, 589 (1st Cir. 2004) (“[I]t is simply ‘use of the mail’ in
the course of the scheme rather than the particular
mailing at issue that must be reasonably foreseeable
for the causation element of a mail fraud offense to be
satisfied.”).2


2
  United States v. Walters, 997 F.2d 1219 (7th Cir. 1993), lends
no support to the defendant’s argument. That case did not create
a rule requiring the government to prove that a defendant
foresaw the particular wire transmissions charged in the
indictment. There, we simply reiterated that the government
                                                  (continued...)
10                                                No. 06-1960

  Given that the defendant knew that payments to CHHS
would be electronically transmitted to her account, she
clearly foresaw that her fraud on the VA would result
in wire transmissions. With respect to Count Two, then,
the evidence was sufficient to show both that a wire
transmission occurred on August 15, 2002, and that
Ratliff-White “caused” a wire transmission in further-
ance of her scheme on that day.3


    2. Sufficiency of the Evidence on Count One
  We turn now to the more difficult question of whether
the government offered evidence sufficient to prove the
charges alleged in Count One.


     a. Proof of a Wire Transmission
  As we stated above, evidence that wire transmissions
occur in the usual course of business will not show suffi-
ciently that a particular wire transmission occurred when
the evidence suggests a deviation from usual practice. See,
e.g., Swinson, 993 F.2d at 1300-02. Just such a deviation
occurred on July 16, 2002, when, at CHHS’s request
for quick payment, the VA transferred funds to Ratliff-


2
  (...continued)
must “prove that [some] use of the mails was foreseeable,” id.
at 1224, rather than falling back on a general assumption that
“the large size and interstate nature of [an organization]
demonstrate that something would be dropped into the mails,”
id. at 1223.
3
  Although the defendant received concurrent terms of imprison-
ment and supervised release on Counts One and Two, we must
nonetheless assess the sufficiency of the evidence on Count One,
because each count resulted in a $100 special assessment. See
Ray v. United States, 481 U.S. 736, 737 (1987) (per curiam).
No. 06-1960                                             11

White’s account using a poorly understood “off line”
process. Since the VA deviated from its standard practice
in order to expedite payment to CHHS, the prosecution
could not rely on Merculief ’s testimony regarding the
standard payment procedure to prove that payment
instructions were transmitted from Hyattsville, Mary-
land to Dallas, Texas on July 16, 2002, as alleged in Count
One.
   Ratliff-White contends that this flaw is fatal to the
government’s case on Count One, and compels the auto-
matic reversal of the guilty verdict on that count. We do
not agree. The defendant’s position ignores the founda-
tional question of prejudice. The defendant does not deny
that there was a fraud. She admits that wire transmis-
sions—transmissions that furthered the scheme—occurred
on the dates charged, stating “[t]here is no dispute that
payments were wired from the Federal Reserve Bank in
Dallas, Texas to the defendants’ bank account. But, for
whatever reason, that is not the interstate wire transmis-
sion with which Ms. Ratliff-White was charged.” Defen-
dant’s Reply Br. at 13. And, she unquestionably foresaw
(i.e., caused) those wire transmissions, because she,
Norwood, and Norwood’s daughter established a bank
account where they wanted the VA to deposit CHHS’s
payments. The proof at trial established a glaring viola-
tion of the federal wire fraud statute.
  Instead of disclaiming participation in a wire fraud,
then, the defendant resorts to arguing that the govern-
ment failed to prove the precise step in the July payment
process alleged in Count One. Specifically, we under-
stand the defendant to be contending that she was preju-
diced by either a constructive amendment to the indict-
ment or a variance between the indictment and proof
at trial. Constructive amendments and variances can
imperil a defendant’s Fifth Amendment right to be in-
formed of the nature and cause of the accusation against
12                                                 No. 06-1960

her and her Sixth Amendment right to indictment by a
grand jury.4 See Stirone v. United States, 361 U.S. 212,
215-16, 217 (1960); United States v. Pigee, 197 F.3d 879,
886 (7th Cir. 1999); United States v. Kuna, 760 F.2d 813,
817 (7th Cir. 1985).
  A variance between indictment and proof exists “when
the terms of the indictment are unaltered, but the evid-
ence offered at trial proves facts materially different
from those alleged in the indictment.” United States v.
Galiffa, 734 F.2d 306, 312 (7th Cir. 1984) (citation omit-
ted); see United States v. Willoughby, 27 F.3d 263, 265 (7th
Cir. 1994); Hunter v. New Mexico, 916 F.2d 595, 598-99
(10th Cir. 1990). “[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 or is exposed to the risk of double
jeopardy.” Hunter, 916 F.2d at 599; United States v. Kuna,
760 F.2d 813, 819 (7th Cir. 1985).
    A constructive amendment to an indictment:
     is found where a “complex set of facts” is presented
     to the jury during the trial which is distinctly
     different from the set of facts set forth in the
     charging instrument. Alternatively, to find a
     constructive amendment the crime charged in the
     indictment must be “materially different or sub-
     stantially altered at trial, [so that] it is impossible
     to know whether the grand jury would have in-
     dicted for the crime actually proved.”


4
   To safeguard those constitutional guarantees, the Supreme
Court has long held that “a court cannot permit a defendant to be
tried on charges that are not made in the indictment,” Stirone,
361 U.S. at 217, and “after an indictment has been returned
its charges may not be broadened through amendment except
by the grand jury itself,” id. at 215-16.
No. 06-1960                                               13

Kuna, 760 F.2d at 818 (citations omitted); Pigee, 197 F.3d
at 886.
   The line distinguishing variances from constructive
amendments “essentially is between the situation in
which different evidence supports the charged crime [as
with a variance] and that in which the evidence sup-
ports a crime other than that charged [as with an amend-
ment].” United States v. Pisello, 877 F.2d 762, 765 (9th Cir.
1989); see United States v. Patterson, 348 F.3d 218, 227
(7th Cir. 2003); Willoughby, 27 F.3d at 265-66. While
there exists only a “ ‘rather shadowy distinction’ between
amendments and variances, a finding of one rather than
the other achieves a crystal clear difference in result:
‘amendments have been held to be prejudicial per se, while
variances may be subject to the harmless error rule.’ ”
Kuna, 760 F.2d at 817 (citations omitted); Pisello, 877 F.2d
at 765 (“Although . . . an amendment[ ] requires re-
versal, . . . a variance[ ] does not warrant reversal unless
it affects the substantial rights of the defendant.”).
   We turn now to that distinction for guidance, looking
first at case law on constructive amendments and then
at the law of variances. In Stirone v. United States, the
Supreme Court found a constructive amendment where
the indictment charged the defendant only with interfer-
ing with the importation of sand, yet the trial evidence
also went to prove a qualitatively different violation of the
Hobbs Act—the interference with the possible exporta-
tion of steel. 361 U.S. at 217. Noting that “after an indict-
ment has been returned its charges may not be broadened
through amendment except by the grand jury itself,” id. at
215-16, and that “a court cannot permit a defendant to
be tried on charges that are not made in the indictment
against him,” id. at 217, the Court reversed the defen-
dant’s conviction, id. 219. There was simply no way of
knowing whether a grand jury “satisfied to charge that
14                                            No. 06-1960

Stirone’s conduct interfered with interstate importation of
sand,” would have “been willing to charge that Stirone’s
conduct would interfere with interstate exportation of
steel from a mill later to be built . . . .” Id. at 217.
  By contrast, when confronted with a case resembling
this one, the Second Circuit in United States v. Dupre, 462
F.3d 131 (2d Cir. 2006), found a variance, not a construc-
tive amendment of the indictment, and affirmed the
defendants’ convictions for wire fraud and conspiracy to
commit wire fraud. Id. at 140-41. There, the defendants
engaged in an advance fee fraud, whereby they told
investors that they were working to release frozen funds
owed to the family of former Filipino president Ferdinand
Marcos. Id. at 135. Investors were promised that in
exchange for their $1,000 contributions to the effort
to release the funds, they would ultimately receive
$500,000. Id.
  Although the indictment charged that the defendants
“caused an investor to wire approximately $2,000 via
Western Union from Liberty Township, Ohio to New York,
New York,” and that fact was not proved at trial, the
court nonetheless affirmed the defendants’ convictions
based on proof unequivocally establishing that other
interstate transmissions occurred in furtherance of the
scheme. Id. at 140 n.10 (emphasis omitted). The court
reasoned that:
     the prosecution did not constructively amend
     Count Two because the evidence at trial concerned
     the same elaborate scheme to defraud investors
     as was described in the indictment. The starting
     and ending dates of the conspiracy noted in the
     indictment correspond to the conspiracy proven at
     trial, and the evidence at trial demonstrated that
     defendants misled investors into believing that
     defendants would eventually be able to obtain the
     “frozen funds purportedly belonging to the family
No. 06-1960                                              15

    of former Filipino president Ferdinand Marcos”
    described in the indictment. There was, however,
    clearly a variance because the particular wire
    transfer identified in the indictment was not
    proven at trial.
Id. at 140-41; see also United States v. Momeni, 991 F.2d
493, 495 (9th Cir. 1993); Pisello, 877 F.2d at 765; United
States v. Von Stoll, 726 F.2d 584, 586 (9th Cir. 1984).
  So too here. In this case, the superseding indictment
charged that Ratliff-White “knowingly devised, intended to
devise, and participated in a scheme to defraud and ob-
tain money from the United States of America, through
the Department of Veterans Affairs, by means of materi-
ally false and fraudulent pretenses . . . .” In particular,
the indictment alleged that from
    in or about July 2002 to August 2002, defendant
    RATLIFF-WHITE and defendant NORWOOD
    caused the VA to deposit approximately $32,100 in
    funds representing payment for services purport-
    edly performed by Compassionate Home Health
    Services into the account that they jointly owned
    at TCF National Bank, well knowing that Compas-
    sionate Home Health Services was a fictitious
    company and had not provided any such services.
  The proof at trial established exactly that. Therefore,
we conclude, just as the Second Circuit did in Dupre, that
“the prosecution did not constructively amend [the indict-
ment] because the evidence at trial concerned the same
elaborate scheme to defraud [the United States] as was
described in the indictment.” Dupre, 462 F.3d at 140-41.
Further, the starting and ending dates of the scheme noted
in the indictment and proved at trial are identical. See id.
And the evidence adduced at trial showed that, as de-
scribed in the indictment, the defendant “caused the VA to
deposit approximately $32,100 in funds representing
16                                           No. 06-1960

payment for services purportedly performed by Compas-
sionate Home Health Services into the account . . . at TCF
National Bank, well knowing that Compassionate Home
Health Services . . . had not provided any such services.”
See id.
  Moreover, this case presents facts even more compelling
than those of Dupre. In Dupre, the court recognized that
the wire transmission actually proved at trial was “not
mentioned in the indictment at all.” Dupre, 462 F.3d at
142. But here, the indictment expressly references the
wire transmissions proved at trial—deposits totaling
$32,100 into the account Ratliff-White shared with
Norwood and her daughter. We need not wonder “whether
the grand jury would have indicted for the crime actually
proved,” Kuna, 760 F.2d at 818, because it did. And
importantly, unlike Dupre, this case concerns only one
true transfer that involved a particular payer (the VA)
and payee (CHHS). Although the indictment anticipated
that the transfer would require multiple steps and high-
lighted one of those steps, the overarching transfer dis-
cussed in the indictment was proved at trial. In Dupre,
however, the transfer charged in the indictment and that
proved at trial were completely different as they involved
entirely different payers. Finding no constructive amend-
ment of the indictment, we consider whether the facts
suggest a fatal variance.
  These facts evince a variance between Count One, which
pinpointed a particular step in the payment process, and
the proof at trial, which established another. But, every
instance in which we find a variance between indictment
and proof does not require reversal. Indeed, “[a] variance
between allegation and proof is not fatal unless the
defendant has been thereby deprived of an adequate
opportunity to prepare a defense or has been exposed to
a risk of being prosecuted twice for the same offense.”
Kuna, 760 F.2d at 819 (citations omitted).
No. 06-1960                                              17

   In Dupre, the Second Circuit considered that question
and found that the proof of a wire transmission different
from that alleged in the indictment was not prejudicial.
Count Two of the indictment in that case charged that the
defendants “caused an investor to wire approximately
$2,000 via Western Union from Liberty Township, Ohio to
New York, New York.” 462 F.3d at 140 n.10 (emphasis
omitted). Instead of proving the transfer of $2,000 from
Liberty Township, Ohio to New York, New York, however,
the Second Circuit found that the evidence at trial estab-
lished several other wire transfers to the Southern Dis-
trict of New York in furtherance of the fraud, including a
$2,000 transfer from Irving, Texas to New York, New York
during the period alleged in the indictment. Id. at 141.
  The court concluded that the defendants were not
prejudiced by this variance. First, the court found that the
defendants had notice sufficient to defend themselves:
“The description of the scheme in the indictment put
defendants on notice that the prosecution aimed to prove
that defendants conspired in the Southern District of
New York to fraudulently induce investors to transfer
money by wire to defendants between October 2002 and
February 2004.” Id. at 141. Further, the court reasoned,
the defendants could not have been surprised by the
evidence used to prove the transfer from Irving, Texas
to New York City because, among other things, Federal
Rule of Criminal Procedure 16 requires the disclosure of
exhibits and witnesses prior to trial. Id. The defense also
knew that a particular individual would be testifying, and
that she possessed certain incriminating documents. Id.
For those reasons, the court found the defense had every
reason to, and did, vigorously cross-examine the witness.
Id. at 141-42. And, “[n]othing in the record suggest[ed]
that the defense would have prepared any differently
had the indictment specified a transfer via Western
Union of $2,000 from Irving, Texas, instead of a transfer
18                                              No. 06-1960

via Western Union of $2,000 from Liberty Township,
Ohio.” Id. at 142.
  Finally, the Second Circuit acknowledged that since the
only wire transmission alleged in the indictment was not
proved at trial and “[b]ecause neither the prosecution’s
summation nor the District Court’s charge to the jury
mentioned what specific transfer was relied upon, [that]
neither [the court] nor the defendants [could] know what
single act substituted for that enumerated in the indict-
ment.” Id. at 142. Nonetheless, the court found no preju-
dice because the district court properly “instructed the
jury that it could find defendants guilty of Count Two
only if it found them responsible for a fraudulent inter-
state wire transfer.” Id. at 142-43; see United States v.
Davis, 471 F.3d 783, 791 (7th Cir. 2006) (“All that remains
is the defendant’s argument that the indictment, coupled
with inadequate jury instructions, allowed him to be
convicted by less than a unanimous jury. . . . Taken in
context, the jury was adequately informed of the need for
unanimity and that all elements—and at least one
scheme—be proved beyond a reasonable doubt. The jury
instructions and the inclusion of multiple schemes in a
single count did not deprive the defendant of a unanimous
jury.”); see also Griffin v. United States, 502 U.S. 46, 56-57
(1991) (“When a jury returns a guilty verdict on an indict-
ment charging several acts in the conjunctive, . . . the
verdict stands if the evidence is sufficient with respect to
any one of the acts charged.” (quoting Turner v. United
States, 396 U.S. 398, 420 (1970)); United States v. Jones,
418 F.3d 726, 729-30 (7th Cir. 2005); United States v.
Bond, 231 F.3d 1075, 1078 (7th Cir. 2000); United States
v. Durman, 30 F.3d 803, 810 (7th Cir. 1994).
  Here, as in Dupre, we find that the variance between the
indictment and proof at trial was harmless, because the
defendant was not deprived of an adequate opportunity to
No. 06-1960                                            19

prepare a defense or exposed to a risk of being prosecuted
twice for the same offense. The defendant had notice—the
language of the indictment made clear that the prosecution
sought to prove that from “July 2002 to August 2002,
defendant RATLIFF-WHITE . . . caused the VA to deposit
approximately $32,100 in funds representing payment
for services purportedly performed by Compassionate
Home Health Services into the account . . . at TCF Na-
tional Bank, well knowing that Compassionate Home
Health Services . . . had not provided any such services.”
See Dupre, 462 F.3d at 141. Additionally, the defendant
could not have been surprised by the evidence showing
the electronic transfer of funds to her bank account on
July 16, 2002. Pursuant to Federal Rule of Criminal
Procedure 16 and Northern District of Illinois Local Rule
16.1, the prosecution disclosed exhibits to the defendant
before trial. Id. So, the defense was advised that the
prosecution would be proffering documents to prove the
interstate wire transmission of funds into Ratliff-White’s
shared account. And, perhaps most importantly, Ratliff-
White’s counsel cannot show that she would have con-
ducted the defense case any differently had the indict-
ment been drafted more artfully to charge only the
deposit of $22,470 on July 16, 2002, rather than the
transmission of payment instructions between Hyattsville
and Dallas. Given that the defendant concedes “that
payments were wired from the Federal Reserve Bank in
Dallas, Texas to the defendants’ bank account,” what
defense she might have offered is wholly unclear. Id. at
142 (“Nothing in the record suggest[ed] that the defense
would have prepared any differently had the indictment
specified a transfer via Western Union of $2,000 from
Irving, Texas, instead of a transfer via Western Union of
$2,000 from Liberty Township, Ohio.”).
  Further, the jury instructions alleviate concern that
the jury convicted on less than a unanimous verdict.
20                                                 No. 06-1960

Specifically, the jury was properly instructed that to
convict it had to reach a unanimous verdict and find each
element of wire fraud, including the existence of a charged
wire transfer, beyond a reasonable doubt. Dupre, 462 F.3d
at 142-43 (The district court “instructed the jury it could
find defendants guilty of Count Two only if it found them
responsible for a fraudulent interstate wire transfer.”); see
Davis, 471 F.3d at 790-91.
  Finally, affirming Ratliff-White’s conviction on Count
One does not give rise to a possible double jeopardy claim.
The indictment alleged a specific fraud—one that:
(1) occurred during a finite interval, “from in or about July
2002 to August 2002”; (2) involved a particular perpetrator
and victim, Ratliff-White and the VA, respectively; and
(3) alleged specific misconduct by the perpetrator,
“caus[ing] the VA to deposit approximately $32,100 in
funds representing payment for services purportedly
performed by Compassionate Home Health Services into
the account . . . at TCF National Bank, well knowing that
Compassionate Home Health Services was a fictitious
company and had not provided any such services.” The
indictment also specified the particular wire transmissions
at issue—the deposit of a total of $32,100 into Ratliff-
White’s account, and the transmission of payment instruc-
tions from Hyattsville, Maryland to Dallas, Texas on July
16, 2002 and August 15, 2002. We perceive no difficulty in
judging the scope of the conviction for double jeopardy
purposes. See Dupre, 462 F.3d at 143 n.12. For all the
above reasons, we find that any variance between the
language of Count One and the proof at trial was harm-
less.5



5
  To reach a different conclusion would be to parse the language
of the indictment and read it in a highly technical manner, two
                                                   (continued...)
No. 06-1960                                                    21

    b. Proof that Ratliff-White Knowingly Caused a Wire
       Transmission
  Having concluded that there was sufficient evidence to
show that a wire transmission charged in Count One
in fact occurred, the final question is whether Ratliff-White
foresaw any wire transmission associated with the fraud
alleged in Count One. For the same reasons we found that
the government satisfied its burden of proving that Ratliff-
White foresaw the use of the wires in furtherance of the
wire fraud alleged in Count Two, we find that she foresaw
a wire transmission in connection with the charges in
Count One.



5
  (...continued)
things that we are loath to do. See United States v. Palumbo
Bros., 145 F.3d 850, 860 (7th Cir. 1998); United States v. Mosley,
786 F.2d 1330, 1334 (7th Cir. 1986); United States v. Esposito,
771 F.2d 283, 289 (7th Cir. 1985).
   Additionally, we note that this case is distinguishable from
United States v. Swinson, 993 F.2d 1299 (7th Cir. 1993), in which
we reversed a defendant’s conviction for mail fraud even though
the evidence showed “that [a] requisition and invoice were
mailed” in furtherance of the alleged scheme. Id. at 1303. There,
we reversed for the simple reason that the indictment “only
concerned itself with the purchase order.” Id. at 1303 (emphasis
added). Indeed, in that case, the indictment did not even
reference a requisition or invoice. To have affirmed the convic-
tion because there was sufficient evidence that two documents
not even hinted at in the indictment were mailed would have
deprived the defendant of his constitutional right to notice of
the charges against which he must defend. Our facts do not
present such a notice problem. See United States v. Lovett, 811
F.2d 979, 986 (7th Cir. 1987) (“Convictions generally have been
sustained as long as the proof upon which they are based
corresponds to an offense that was clearly set out in the in-
dictment.” (citations omitted)).
22                                              No. 06-1960



B. Ratliff-White’s Challenges to the Purported
   Admission of Bad Acts Evidence
  On appeal, for the first time, Ratliff-White argues that
her convictions are the result of the prosecution’s intro-
duction of improper propensity evidence in violation of
Federal Rule of Evidence 404(b). Specifically, she contends
that the prosecution revealed bad acts evidence when it
asked Dr. McInerney whether she would have reached a
different opinion of Ratliff-White had she known that
Ratliff-White’s medical history was not as represented. For
instance, the prosecution asked whether it would alter Dr.
McInerney’s opinion to know that the defendant had not
actually undergone reconstructive surgery after a violent
assault, as she had claimed. Further, Ratliff-White takes
issue with the prosecution’s questioning Rio about Ratliff-
White’s prior requests for VA funding. Rio revealed that
Ratliff-White had once asked the VA to pay for her to
travel to Arlington for her fiancé’s burial, and that the VA
could not find anyone matching the alleged fiancé’s
description. According to Ratliff-White, both lines of
questioning portrayed her as a liar in violation of Rule
404(b), which provides that:
       Evidence of other crimes, wrongs, or acts is not
     admissible to prove the character of a person in
     order to show action in conformity therewith. It
     may, however, be admissible for other purposes,
     such as proof of motive, opportunity, intent, prepa-
     ration, plan, knowledge, identity, or absence of
     mistake or accident, provided that upon request by
     the accused, the prosecution in a criminal case
     shall provide reasonable notice in advance of trial,
     or during trial if the court excuses pretrial notice
     on good cause shown, of the general nature of any
     such evidence it intends to introduce at trial.
No. 06-1960                                                    23

  Before addressing the merits of Ratliff-White’s argu-
ment, we consider the standard of review governing these
evidentiary issues. Although Ratliff-White did not timely
object on Rule 404(b) grounds to the lines of questioning at
issue today, she nonetheless argues for something other
than plain error review. See United States v. Curtis, 280
F.3d 798, 801 (7th Cir. 2002) (when a defendant fails to
timely object at trial to the admission of evidence, plain
error review applies on appeal). Ratliff-White contends
that the prosecution violated its Rule 404(b) duty to
provide her with advanced notice of its intent to proffer
bad act evidence. Cf. United States v. Carrasco, 381 F.3d
1237, 1241 (11th Cir. 2004) (per curiam) (reversing a
defendant’s conviction because the prosecution’s failure to
give “the required Rule 404(b) notice” before offering
evidence of the defendant’s prior drug deals “prejudiced
[the defendant]’s ability to defend himself ”). The prosecu-
tion does not dispute that it had a duty to disclose
Rule 404(b) evidence or that it failed to satisfy that duty.
Ratliff-White argues that as a consequence of the govern-
ment’s nondisclosure, the government should be pre-
vented from calling for plain error review and her failure
to object should be excused.6 Even if we were to accept
her novel argument and review for abuse of discretion,
which we do not, her claims would still fail. See United
States v. Williams, 216 F.3d 611, 614 (7th Cir. 2000) (“We



6
  Ratliff-White also argues for something other than plain error
review because she contends that in questioning Dr. McInerney,
the prosecution violated Federal Rule of Evidence 703 and the
prohibition against hearsay by introducing material from another
expert’s report without first allowing the court to assess whether
the material’s probative value substantially outweighed its
prejudicial effect. But as we will explain, even if we were to
honor her request for a more favorable standard of review, she
would not prevail.
24                                              No. 06-1960

review rulings determining the admissibility of evidence
under Rule 404(b) for an abuse of discretion.”).
  Whether the district court erred in allowing this ques-
tioning is immaterial because any error was harmless. See
Fed. R. Crim. P. 52(a); United States v. Ortiz, 474 F.3d
976, 982 (7th Cir. 2007) (“Errors do not merit reversal
when the government proves that they are harmless, that
is, that they did not affect the outcome of the trial.”). The
evidence offered in support of Ratliff-White’s wire fraud
was substantial. Norwood’s testimony revealed that
Ratliff-White conceived of and directed the fraudulent
scheme; recruited others, including Norwood and
Norwood’s daughter to assist; and prepared all the false
time sheets and invoices. Rio and another VA employee
testified that Ratliff-White hounded them to make pay-
ments to CHHS. Officials involved in the October 2002
search of Ratliff-White’s apartment testified about the
CHHS time sheets and tax information found in her home
and on her personal computer. Merculief testified regard-
ing the standard procedure by which vendor payments
were processed by the VA, which included the transmis-
sion of payment instructions from Hyattsville, Maryland
and Dallas, Texas. Ratliff-White gave us no reason to
doubt that the standard procedure was followed on August
15, 2002, and all evidence shows that the standard proce-
dure was followed on that day, as alleged in Count Two.
Although evidence exists that there was a deviation from
standard practice on July 16, 2002, there is ample evidence
of the other wire transmissions charged in the indict-
ment—the deposits totaling $32,100. Indeed, Merculief
authenticated documents reflecting the electronic deposit
of $22,470 on July 16, 2002, and of $9,150 on August 15,
2002; and Ratliff-White acknowledged that those deposits
occurred. Given the ample evidence of wire fraud, we find
that any error due to the admission of Rule 404(b) evid-
ence was harmless.
No. 06-1960                                              25

  The defendant, however, likens this case to United States
v. Meeker, 558 F.2d 387 (7th Cir. 1977), where we found
that questions posed by the prosecution were sufficient
to deprive a defendant accused of failing to report income
on his tax returns of a fair trial. Id. at 388. That case
presented a unique circumstance: (1) the prosecutor’s
questions “invited the jury to convict Meeker on facts
outside the record, some of which were patently untrue,
and others of which were not admissible at trial”; (2) the
questions gave the jury the false impression that the
defendant had in the past committed the very crime for
which he stood trial; and (3) the prosecutor’s “misconduct
was pronounced and persistent . . . .” Id. at 389-90 (quota-
tion marks and citations omitted).
  This case is distinguishable from Meeker in several
important respects. The defendant does not suggest that
there was no factual basis for the questions asked of Dr.
McInerney or that any of the questions suggested facts
that were patently untrue. Rio’s testimony reveals that
there was a factual basis for the questions posed to him.
Also, in this instance, the prosecution’s alleged misconduct
was not repeated. The prosecution did not ignore any
warning regarding its questioning of Dr. McInerney, and
the defendant only objected to one of the questions asked
of Dr. McInerney. After the court sustained that objection,
the government refrained from asking objectionable
questions. Neither the defendant nor the court expressed
any concern regarding the questions posed to Rio. Finally,
with respect to Dr. McInerney, it seems clear that the
defense put Ratliff-White’s assault history in issue by
asking Dr. McInerney questions regarding Ratliff-White’s
accounts of abuse, which opened the door for the govern-
ment to ask questions about that assault history. There-
fore, the defendant’s reliance on United States v. Meeker
is not persuasive.
26                                        No. 06-1960

                III. CONCLUSION
 For these reasons, Ratliff-White’s convictions are
AFFIRMED.

A true Copy:
      Teste:

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




                USCA-02-C-0072—7-10-07
