United States v. Derrick Clark

                               In the

    United States Court of Appeals
                For the Seventh Circuit
                    ____________________
Nos. 24-1320 & 24-1321
UNITED STATES OF AMERICA,
                                                   Plaintiff-Appellee,
                                 v.

DERRICK CLARK and SHAWN MESNER,
                                             Defendants-Appellants.
                    ____________________

        Appeals from the United States District Court for the
                   Western District of Wisconsin.
         No. 22-cr-55-jdp — James D. Peterson, Chief Judge.
                    ____________________

    ARGUED DECEMBER 11, 2024 — DECIDED JUNE 10, 2025
                ____________________

   Before EASTERBROOK, BRENNAN, and ST. EVE, Circuit Judges.
    ST. EVE, Circuit Judge. Derrick Clark and Shawn Mesner
worked for Didion Milling, Inc. (“Didion”), a corn milling
company. In May 2017, Didion’s grain mill exploded, killing
five employees. The Occupational Health and Safety Admin-
istration (“OSHA”) investigated the explosion and ultimately
referred Didion for criminal prosecution.
2                                       Nos. 24-1320 & 24-1321

   The government charged Didion and several of its em-
ployees with federal crimes relating to their work at the mill.
Three of the defendants, including Clark and Mesner, pro-
ceeded to trial.
    In this appeal, Clark and Mesner challenge the district
court’s evidentiary rulings and jury instructions, the indict-
ment, the sufficiency of the evidence underlying their convic-
tions, and the constitutionality of their convictions. We vacate
Mesner’s conviction on Count 4. For this count as to Mesner,
we remand for an entry of judgment of acquittal and for fur-
ther proceedings consistent with this opinion. Otherwise, we
affirm.
                        I. Background
A. Factual History
    Didion processes raw corn into ingredients that it sells to
food and beverage manufacturers, like General Mills and An-
heuser-Busch. Clark and Mesner worked at Didion’s grain
mill in Cambria, Wisconsin—Clark as Didion’s vice president
of operations, and Mesner as Didion’s food safety superinten-
dent.
    On May 31, 2017, Didion’s mill exploded, tragically killing
five employees. After an investigation, OSHA issued citations
and fines against Didion and referred it for criminal prosecu-
tion. The government’s investigation uncovered wrongdoing
related to falsification of records, false testimony, and con-
spiracy to commit those and other similar offenses. This mis-
conduct centered on two processes: Didion’s dust collection
tracking and sanitation schedule.
Nos. 24-1320 & 24-1321                                        3

   1. Didion’s Baghouse Logs
    Grain milling generates significant amounts of grain dust,
a pollutant. The Wisconsin Department of Natural Resources
(“WDNR”) issues permits to companies like Didion to help
regulate pollutants. Didion had to certify its continued com-
pliance with its WDNR permit every six months. The submis-
sion consisted of a compliance certification cover page and a
deviation summary report, which required Didion to list
known deviations from its permit.
    Among other things, Didion’s permit obligated Didion to
monitor a parameter referred to as the baghouse pressure
drop. Baghouses are pollution control devices that reduce
emissions by capturing dust particles before they enter the air.
The pressure drop is a measurement that reflects the effi-
ciency of a baghouse. Didion’s baghouses had to remain at a
pressure drop range between 1.5 and 8 inches, with an allow-
ance to drop to 0.5 inches in certain circumstances. Mill work-
ers (or “millers”) at Didion read the baghouse pressure drops
and recorded them in baghouse logs.
    Evidence adduced at trial established that millers did not
accurately record the baghouse pressures. Instead, when the
baghouse pressure reading was below “2” or above “8,” mil-
lers consistently reported the number into the baghouse logs
as “2” or “8”—regardless of the precise pressure. Didion’s
permit compliance certification covering January to June 2017
did not disclose this improper recording practice. Joseph
Winch—a former Didion environmental manager who
pleaded guilty—prepared the certification. Clark signed it.
   Apart from the bi-annual compliance certifications, Did-
ion underwent inspections from the WDNR and other
4                                      Nos. 24-1320 & 24-1321

agencies. In May 2017, before the explosion, the WDNR con-
ducted one such inspection—attended by both Winch and
Clark. After the inspection, Winch emailed Didion’s baghouse
logs from 2015 through 2017 to the WDNR in response to its
request. All entries of “2” and “8” in the 2015 and 2016 logs
had yellow highlighting. The 2017 spreadsheet did not con-
tain the same color coding. Winch did not include Clark on
the email transmitting the logs to the WDNR.
   Didion’s certification and baghouse log color coding—as
benign as the latter may seem—play a pivotal role in many of
Clark’s challenges on appeal.
    2. Didion’s Master Sanitation Schedule Logbook
   The other process implicated by this appeal involved Did-
ion’s cleaning logs, which are central to Mesner’s challenges.
    Didion maintained a Master Sanitation Schedule logbook
to track compliance with Didion’s sanitation schedule. When
workers completed cleaning tasks, they documented their in-
itials and the date in the sanitation logbook. Shift superinten-
dents reviewed and signed the logbook upon verification that
workers completed required cleanings. Mesner, as Didion’s
food safety and technical superintendent, signed each page to
verify task completion.
    Former Didion employees testified at trial that workers
and superintendents backfilled the sanitation logbook with-
out verifying if anyone completed the cleanings. They testi-
fied that they often did so at Mesner’s direction. One former
shift superintendent stated that Mesner instructed him to stop
writing “task not completed” in the sanitation logbook and,
where he already had, to add an asterisk and indicate that
cleanings were timely completed and verified. The witness
Nos. 24-1320 & 24-1321                                      5

agreed that he “falsif[ied] the Master Sanitation Schedule” at
“Mesner’s instruction.”
B. Procedural History
   1. Pretrial Proceedings
   In May 2022, a grand jury indicted Didion and six employ-
ees on nine counts related to the unsafe operation of Didion’s
mill and the conduct just described. The challenges Clark and
Mesner raise on appeal implicate most of these counts.
    Count 1 charged Didion, Clark, Mesner, and others with a
conspiracy to commit wire and mail fraud, in violation of 18
U.S.C. §§ 1341, 1343, and 1349. It alleged that the defendants
conspired to deceive food safety auditors about Didion’s san-
itation practices so the company could continue to sell mil-
lions of dollars of milled corn ingredients to food and bever-
age manufacturers.
    Count 4 charged Didion, Clark, Mesner, and others with
conspiracy to commit three federal offenses—18 U.S.C.
§§ 1519, 1001(a)(3), and 1505—in violation of 18 U.S.C. § 371.
    Counts 5, 6, 7, and 9 charged the defendants with viola-
tions of those underlying federal statutes: Count 5 charged
Clark and others with falsifying a certification within the ju-
risdiction of the EPA, in violation of § 1519; Count 6 charged
Clark and others with making and using a false document—
the baghouse logs—in violation of § 1001(a)(3); Count 7
charged Clark, Mesner, and others with making and using a
false document—the sanitation logbook—in violation of
§ 1001(a)(3); and Count 9 charged Clark and Didion with ob-
struction of agency proceedings, in violation of § 1505.
6                                       Nos. 24-1320 & 24-1321

    Before trial, four of the seven defendants pleaded guilty,
including Didion.
    2. Trial Proceedings
    Clark, Mesner, and James Lenz, a former environmental
manager, proceeded to trial. After a seven-day trial consisting
of over twenty witnesses and hundreds of exhibits, the jury
acquitted Lenz but convicted Clark on four counts and
Mesner on two counts:
                 Count                      Clark    Mesner
 Count 1: Conspiracy to Commit Mail          Not     Guilty
 and Wire Fraud, 18 U.S.C. §§ 1341, 1343,   guilty
 & 1349
 Count 4: Conspiracy to Commit Federal      Guilty   Guilty
 Offenses, 18 U.S.C. § 371
 Count 5: False Entries in Record in Con-   Guilty     Not
 templation of Federal Investigation, 18             charged
 U.S.C. § 1519
 Count 6: Using False Document Within       Guilty     Not
 the EPA’s Jurisdiction, 18 U.S.C.                   charged
 § 1001(a)(3)
 Count 9: Obstruction of Agency Pro-        Guilty     Not
 ceedings, 18 U.S.C. § 1505                          charged

3. Posttrial Proceedings
    After trial, Clark filed a motion for judgment of acquittal
or a new trial pursuant to Federal Rules of Criminal Proce-
dure 29 and 33, respectively. Mesner filed a letter renewing
his oral motion challenging the sufficiency of the evidence as
to all counts against him and adopting specific portions of
Clark’s written motion. The district court denied the motions,
Nos. 24-1320 & 24-1321                                        7

sentenced Clark and Mesner each to 24 months’ imprison-
ment and one year supervised release, and imposed applica-
ble monetary penalties.
   They now appeal.
                         II. Discussion
    Clark and Mesner raise numerous challenges to their re-
spective convictions. We summarize them as follows: (1) the
district court erred in admitting Joseph Winch’s plea agree-
ment as substantive evidence; (2) the district court improp-
erly admitted evidence related to legally invalid or dismissed
charges, resulting in cumulative error; (3) the jury lacked suf-
ficient evidence to convict Clark on Counts 5 and 6; (4) the
district court gave a legally erroneous jury instruction on
Count 4; (5) the OSHA housekeeping regulation incorporated
by Counts 4 and 9 is unconstitutionally vague; (6) the jury
lacked sufficient evidence to convict Mesner on Count 4;
(7) the indictment did not charge a crime in Count 1 and, in
any event, the jury lacked sufficient evidence to convict
Mesner on Count 1.
A. Clark
   1. Admission of Winch’s Statement of Facts
    Joseph Winch pleaded guilty to conspiring to commit a
federal offense, as charged in Count 4. His plea agreement in-
cluded a three-page statement of facts. In this statement,
Winch agreed that he knew Didion’s WDNR permit governed
Didion’s operations; identified permit violations; and in-
formed Didion’s leaders, including Clark, of the violations.
Winch further admitted that he and Clark agreed to file a com-
pliance certification and deviation summary report knowing
it omitted violations.
8                                       Nos. 24-1320 & 24-1321

    During his testimony at trial, Winch contradicted these ad-
missions. The government therefore sought to introduce the
statement of facts as a prior inconsistent statement made un-
der oath. Fed. R. Evid. 801(d)(1)(A).
    The district court admitted the statement of facts over
Clark’s objection. Although Clark offers numerous challenges
to the admission on appeal, at trial, he raised only one with
adequate specificity: the statement of facts did not constitute
a statement made by Winch under oath. We review this chal-
lenge for an abuse of discretion, reversing only if “no reason-
able person could adopt” the district court’s view. United
States v. Schmitt, 770 F.3d 524, 532 (7th Cir. 2014).
    Clark cannot make this showing. Winch attested to the
truth and accuracy of the statement of facts during his plea
hearing. He reaffirmed as much at trial. Winch’s adoption of
the statement of facts while under oath renders it admissible
as his own prior statement, notwithstanding that the govern-
ment drafted it. See United States v. Cisneros-Gutierrez, 517 F.3d
751, 758–59 (5th Cir. 2008) (finding no abuse of discretion in
admitting a factual resume drafted by the government where
the declarant attested to its accuracy under oath); United States
v. Cervantes, 646 F.3d 1054, 1060 (8th Cir. 2011) (affirming the
district court’s admission of “the factual basis for [a] plea”
where the witness “affirmed the … agreement under oath”).
    Clark also raises three new challenges to the admission of
the statement of facts: the court (1) failed to review the plea
hearing transcript to ensure that Winch adopted the entire
statement under oath; (2) failed to confirm that each line of
the statement was inconsistent with Winch’s testimony under
Williamson v. United States, 512 U.S. 594 (1994); and (3) failed
Nos. 24-1320 & 24-1321                                             9

to exclude the statement for lack of foundation pursuant to
Federal Rule of Evidence 701.
    Clark did not raise these specific objections before the dis-
trict court, and so we review for plain error. See United States
v. Echols, 104 F.4th 1023, 1029 (7th Cir. 2024) (“A party … can-
not preserve one specific objection by making a different spe-
cific objection in the trial court.”). Under this standard, we
will reverse only if a “plain” error occurred that affected both
the defendant’s “substantial rights” and “the fairness, integ-
rity, or public reputation of the proceedings.” United States v.
Olano, 507 U.S. 725, 732 (1993) (internal quotation marks omit-
ted); United States v. Page, 123 F.4th 851, 864 (7th Cir. 2024) (en
banc) (internal quotation marks omitted).
   Turning first to the plea hearing transcript, we disagree
that the court needed to review it to assess whether Winch
adopted the entire statement of facts. The court itself presided
over the plea hearing and recalled questioning Winch. It
could therefore appropriately determine whether Winch
adopted the entire statement of facts without additional re-
view.
    Nor did the court err in not conducting a line-by-line com-
parison of Winch’s statement of facts against his trial testi-
mony to identify inconsistencies. In raising this challenge,
Clark relies on Williamson v. United States, a case which re-
quires courts to parse a hearsay declarant’s statements when
deciding whether to admit them against penal interest under
Federal Rule of Evidence 804(b)(3). 512 U.S. at 599. But we
have never applied Williamson outside of Rule 804, and we de-
cline to find plain error for the district court’s failure to do so.
See, e.g., United States v. Hopper, 11 F.4th 561, 572 (7th Cir. 2021)
10                                                Nos. 24-1320 & 24-1321

(finding no plain error “[g]iven the lack of controlling prece-
dent in our circuit”). 1
    Finally, Clark challenges the admission of Winch’s state-
ment of facts for failure to establish the proper foundation for
the statements about Clark’s state of mind. Federal Rule of
Evidence 701(a) provides that a lay opinion must be “ration-
ally based on the witness’s perception.” The witness’s testi-
mony must therefore concern something that the witness has
“observ[ed],” or about which the witness has “first-hand
knowledge.” United States v. Wantuch, 525 F.3d 505, 513 (7th
Cir. 2008) (quoting Fed. R. Evid. 701(a) Advisory Committee
Note).
    The statement of facts itself, together with Winch’s trial
testimony, assures us that the court did not plainly err in ad-
mitting the statement of facts. In the statement, Winch swore
that he told Clark about permit violations. During trial, he tes-
tified that he discussed with Clark Didion’s need to improve
environmental compliance, drew Clark’s attention to missing


     1 To the extent Clark challenges admission on the ground that Winch’s

testimony did not directly contradict every line of his statement of facts,
we have explained that “inconsistency ‘may be found in evasive answers
... or changes in positions.’” United States v. Gajo, 290 F.3d 922, 931 (7th Cir.
2002) (quoting United States v. Williams, 737 F.2d 594, 608 (7th Cir. 1984)).
The district court reviewed the statement of facts and perceived multiple
inconsistencies. Winch acknowledged as much on the stand. Clark has not
identified any particular statements that the court should have excluded
as not inconsistent. We therefore defer to the district court, which sits in
the best “position to evaluate … whether a witness’s trial testimony is
truly inconsistent with … prior … testimony.” Id; Williamson, 512 U.S. at
621 (Kennedy, J., concurring) (“District judges … are close to the facts and
far better able to evaluate the various circumstances” that impact the ad-
missibility of evidence).
Nos. 24-1320 & 24-1321                                                       11

baghouse readings, and alerted Clark that baghouse log data
revealed “hundreds of occurrences of a 2 or an 8 and zero oc-
currences of less than 2 or greater than 8, a statistically highly
improbable pattern.” This testimony evinces Winch’s “first-
hand knowledge” regarding what Clark knew.
    We further take comfort from the fact that defense counsel
extensively cross-examined Winch about his plea agreement.
See United States v. Allen, 10 F.3d 405, 414 (7th Cir. 1993) (“Rule
701 places great reliance on a party’s ability to cross-examine
an opponent’s witness and present any weaknesses in the wit-
ness’s testimony to the trier of fact.”). Indeed, counsel elicited
testimony from Winch that aspects of the statement of facts
(unrelated to Clark’s knowledge) were untrue. Armed with
Winch’s testimony and prior sworn statements, the jury could
decide what “weight or credibility” to afford to Winch. Id.
    In all, the court’s decision to admit Winch’s statement of
facts did not amount to either an abuse of discretion or plain
error. 2
    2. Sufficiency of the Evidence for Falsification Charges
   We turn next to Clark’s challenges to the sufficiency of the
evidence supporting his convictions on Counts 5 and 6, which


    2 Clark offers a handful of other evidentiary challenges that together,

he claims, amount to cumulative error. None has merit. The challenged
evidence relating to the sanitation logbook, dust accumulation, cleaning,
and grain mill explosions exceeds the “low threshold” for relevance.
United States v. Boros, 668 F.3d 901, 907 (7th Cir. 2012). As to the sole unfair
prejudice argument Clark developed on appeal, we afford “special defer-
ence” to the district court’s observation that the jury already knew about
the mill explosion and resulting deaths. United States v. Proano, 912 F.3d
431, 440 (7th Cir. 2019) (internal quotation marks omitted).
12                                      Nos. 24-1320 & 24-1321

we review de novo. United States v. Siepman, 107 F.4th 762, 767
(7th Cir. 2024). “In undertaking this inquiry, we ‘consider the
evidence in the light most favorable to the Government,’ and
will reverse ‘only when the record contains no evidence, re-
gardless of how it is weighed, from which the jury could find
guilt beyond a reasonable doubt.’” United States v. Peoples, 119
F.4th 1097, 1101 (7th Cir. 2024) (quoting United States v. Blass-
ingame, 197 F.3d 271, 284 (7th Cir. 1999)). Litigants seeking re-
versal under this standard face a “nearly insurmountable hur-
dle.” United States v. Frazier, 129 F.4th 392, 403 (7th Cir. 2025)
(quoting United States v. Garcia, 919 F.3d 489, 496 (7th Cir.
2019)).
       a. False Entry in Didion’s Compliance Certification
    Count 5 of the indictment charged Clark with making a
false entry in Didion’s 2017 mid-year compliance certification
and deviation summary report, in violation of 18 U.S.C.
§ 1519. A person violates § 1519 if he “knowingly … falsifies,
or makes a false entry in any record … with the intent to im-
pede, obstruct, or influence the investigation or proper ad-
ministration of any matter within the jurisdiction” of a federal
agency. See United States v. Sheffler, 125 F.4th 814, 826 (7th Cir.
2025).
    The compliance certification, which Clark signed, pro-
vided that from January to June 2017, Didion “was in contin-
uous compliance” with its WDNR permit, “EXCEPT for the
deviations identified in the deviation summary report ….”
The report did not disclose that Didion’s millers had a prac-
tice of recording baghouse pressure drops of “2” and “8”
when the gauge reflected a number outside of that range.
Nos. 24-1320 & 24-1321                                     13

    A jury could reasonably conclude that Clark violated
§ 1519 when he verified compliance with Didion’s permit
without mentioning the company’s improper recording prac-
tice. The WDNR permit required Didion to accurately report
pressure drops, not just maintain them within a certain range.
And based on the evidence presented, a jury could reasonably
conclude that Clark understood the permit requirements,
knew about Didion’s inaccurate recording practice, and knew
the practice would violate Didion’s permit. It saw, for exam-
ple, the at-issue deviation summary report that expressly re-
quired Didion to “monitor and record the pressure drop
across the baghouse.” It also saw a March 2017 email, which
Clark received, instructing mill superintendents to immedi-
ately discontinue “the practice of recording the baghouse
pressure drops as ‘2’ … whenever the pressure drop falls be-
low a 2” and instead to record the observed number. Finally,
it saw an email from Clark reminding employees to take the
required baghouse readings at the required times or risk vio-
lating Didion’s permit and the law.
    If that evidence alone were not enough, Winch swore in
his statement of facts that Clark knew the report omitted Did-
ion’s falsification of the baghouse logs and that such omission
would violate the WDNR permit.
    Winch’s testimony that he never told Clark the report con-
tained false information does not undermine the reasonable
inference the jury could draw from this evidence. It heard—
and clearly rejected—Winch’s testimony. We do not reweigh
evidence or reassess credibility when evaluating the suffi-
ciency of evidence. See United States v. Medina, 969 F.3d 819,
821 (7th Cir. 2020). The jury could have credited Winch, or it
could have credited the ample evidence supporting that Clark
14                                      Nos. 24-1320 & 24-1321

reviewed the deviation report, knew about inaccurate report-
ing practices, and therefore knew that the report conveyed
false information when he signed it.
    Clark cannot escape liability simply because he did not
draft the report. He attested to its accuracy “based on infor-
mation and belief formed after reasonable inquiry.” On the
facts before us, that qualifies as a “false entry” for purposes of
§ 1519.
   Viewing the evidence in the light most favorable to the
government, a reasonable jury could have convicted Clark on
Count 5.
       b. Use of Falsified Baghouse Logs
   Clark next challenges his conviction on Count 6 for violat-
ing 18 U.S.C. § 1001(a)(3). Section 1001(a)(3) prohibits making
or using a document containing a false statement in a matter
within a federal agency’s jurisdiction. Although similar to
Count 5, this charge centered on Winch submitting Didion’s
baghouse logs to the WDNR in August of 2017.
    The government pursued an aiding and abetting theory of
liability against Clark on this count. Under 18 U.S.C. § 2, a
person who aids or abets “an offense against the United States
… is punishable as a principal.” A jury can convict a defend-
ant “as an aider and abettor upon a proper demonstration of
proof so long as no unfair surprise results.” United States v.
Valencia, 907 F.2d 671, 677 n.5 (7th Cir. 1990).
   Clark cannot credibly claim surprise at this theory. The in-
dictment expressly charged the Count 6 defendants, Clark in-
cluded, with a violation of § 1001(a)(3) and § 2. The court also
gave a general aiding and abetting instruction at trial, provid-
ing the elements and pointing the jury to “some of the counts
Nos. 24-1320 & 24-1321                                         15

of the indictment … [that] include[] the allegation that the de-
fendant aided and abetted the offense.”
    Turning to the merits, to convict Clark, the government
first had to prove that Winch violated § 1001(a)(3). To do so,
it had to establish that Winch (1) made or used a false docu-
ment; (2) knowing the document contained a false statement
or entry; (3) the false statement or entry was material; (4) the
defendant made or used the document knowingly and will-
fully; and (5) the defendant used the document in a matter
within the jurisdiction of a United States agency. See United
States v. Clark, 787 F.3d 451, 459 (7th Cir. 2015). Clark contests
only whether the government proved that Winch “used” the
baghouse logs for purposes of § 1001(a)(3).
    The district court instructed the jury, without objection,
that “a defendant ‘uses’ a document containing false entries if
the person actively employs it for an illegal purpose or makes
an express or implied representation of the document’s accu-
racy.” Section 1001(a)(3) does not require that a defendant
“actually represent to an agency that the facts contained in the
submitted documents are correct.” United States v. Steele, 933
F.2d 1313, 1315–16, 1319 n.5, 1322 (6th Cir. 1991) (affirming the
defendant’s § 1001(a)(3) conviction where he knowingly sub-
mitted false documents to the IRS in response to a request
from an IRS agent).
   Winch testified that he “submitted” to the WDNR
“baghouse pressure drop readings … that did not represent
their actual readings.” He also removed the color coding from
the 2017 baghouse logs. Although he testified that he did so
per industry best practice, he acknowledged that he “may”
have told government officials that he removed the highlight-
ing “intentionally to make it more difficult for regulators to
16                                              Nos. 24-1320 & 24-1321

identify readings that were outside parameters.” Viewing the
evidence in the light most favorable to the government, a jury
could reasonably conclude that Winch “used” the baghouse
logs when he submitted them to the WDNR knowing they
contained material falsities. See id. at 1319 n.5 (“[A] defendant
‘uses’ a writing in a manner proscribed by section 1001 when
[he] … knowingly and willfully submit[s] a false and material
document to an agency on a matter that is within the jurisdic-
tion of such agency.”).
     To prove that Clark aided and abetted Winch’s conduct,
the government had to establish that Clark took “an affirma-
tive act in furtherance of [the] offense” with “the intent of fa-
cilitating the offense’s commission.” Rosemond v. United States,
572 U.S. 65, 71 (2014); United States v. Anderson, 988 F.3d 420,
424 (7th Cir. 2021).
    “Precedent sets a low bar for satisfying the ‘affirmative act’
requirement.” United States v. Cejas, 761 F.3d 717, 729 (7th Cir.
2014). A defendant need not participate in every element of
the offense to face liability. See Rosemond, 572 U.S. at 73; see
also United States v. Johnson, 319 U.S. 503, 515 (1943) (charac-
terizing as “irrelevant” the defendants’ “non-participation” in
the filing of a false tax return). Section 2 covers “all assistance
rendered by words, acts, encouragement, support, or pres-
ence.” Rosemond, 572 U.S. at 73 (quoting Reves v. Ernst &
Young, 507 U.S. 170, 178 (1993)).
   The removal of color coding from the 2017 logs falls
squarely within an affirmative act. 3 Winch testified that he

     3 The removal of color coding is relevant because it illustrates the de-

fendants’ intent, not because it has (or lacks) special significance to regu-
lators.
Nos. 24-1320 & 24-1321                                                  17

told government attorneys he and Clark “agreed” to remove
the color coding during a preaudit meeting where they “dis-
cussed what records were to be reviewed by the [W]DNR.”
The jury could have reasonably concluded that Clark took an
affirmative act in agreeing with Winch to remove the color
coding in furtherance of the § 1001(a)(3) offense.
    As for intent, “the classic articulation …. require[s] a
shared intent between the principal and the accomplice as to
the offense.” United States v. Carr, 107 F.4th 636, 649–50 (7th
Cir. 2024); see also United States v. Carter, 695 F.3d 690, 697 (7th
Cir. 2012) (“[I]t is well established that ‘the state of mind re-
quired for conviction as an aider and abettor is the same state
of mind required for the principal offense.’” (quoting United
States v. Reiswitz, 941 F.2d 488, 494 (7th Cir. 1991))). 4 Viewing
the evidence in the light most favorable to the government,
we assume the jury credited Winch’s statement that he may
have told the government that he removed the color coding to
deceive regulators, and discredited his testimony that he did
so per industry best practice. Although Winch did not testify
that Clark shared his intent, viewing the evidence in the light
most favorable to the government, a jury could reasonably in-
fer as much based on Clark attesting to the accuracy of Did-
ion’s permit deviation report, which omitted mention of the
falsified baghouse logs. A jury could further conclude that
Clark intended Winch’s use of the baghouse logs because he


    4 The Supreme Court in Rosemond left open the possibility that a de-

fendant could be held liable for “natural and probable consequences” of
the intended offense. Carr, 107 F.4th at 651 n.5. Without meaningful argu-
ment from the parties, however, and in line with the district court’s jury
instructions, we proceed with the “classic articulation” of accomplice lia-
bility requiring shared intent. Id. at 650–51.
18                                           Nos. 24-1320 & 24-1321

agreed with Winch to remove the highlighting, attended a
WDNR audit where inspectors reviewed the baghouse logs
but said nothing about their systematic falsifications, and
knew that the WDNR had an interest in enforcing its permit.
     We have made clear that “[w]e do not reverse a conviction
if a reasonable jury could have acquitted a defendant, we only
reverse if the jury was obliged to acquit the defendant.” United
States v. Wortman, 488 F.3d 752, 754 (7th Cir. 2007) (emphasis
added). The government presented enough evidence against
Clark on Count 6 to support his conviction.
     3. Section 371 Conspiracy Charge
    We next consider Clark’s two independent challenges to
Count 4, which charged a conspiracy to commit three “of-
fense[s] against the United States”: (1) making or using a false
document, in violation of § 1001(a)(3); (2) falsifying docu-
ments in a federal investigation, in violation of § 1519; and
(3) obstructing an agency proceeding, in violation of § 1505.
18 U.S.C. § 371; Ocasio v. United States, 578 U.S. 282, 287 (2016).
Clark first argues that the court improperly instructed the
jury, and so he is entitled to a new trial. 5 He further argues
that Counts 4 and 9 relied on an unconstitutionally vague reg-
ulation, and so the court should have dismissed them.
         a. Jury Instructions
   To secure a new trial based on improper jury instructions,
an appellant “must show both that the instructions did not
adequately state the law and that the error was prejudicial to
[him] because the jury was likely to be confused or misled.”


     5 Mesner joined this challenge. Because we vacate his conviction for

insufficient evidence, however, we consider it only as to Clark.
Nos. 24-1320 & 24-1321                                            19

United States v. White, 443 F.3d 582, 587 (7th Cir. 2006) (internal
quotation marks omitted). Where an appellant preserves his
challenge, we review de novo whether instructions as a whole
accurately summarize the law, affording substantial discre-
tion to the district judge’s precise wording. United States v.
Christophel, 92 F.4th 723, 726–27 (7th Cir. 2024).
   In relevant part, the district court instructed the jury:
   Count 4 of the indictment charges all defendants …
   with a conspiracy to commit three federal crimes.
   …
   To prove a defendant guilty of the conspiracy in Count
   4, the government must prove … [t]he conspiracy as
   charged in Count 4 existed; [t]he defendant you are
   considering knowingly became a member of the con-
   spiracy with the intent to advance the conspiracy by
   committing at least one of the specified federal of-
   fenses; and [o]ne of the conspirators committed an
   overt act in an effort to advance the goals of the con-
   spiracy.
   The indictment alleges that the overarching objective of the
   conspiracy was to conceal violations and unsafe conditions
   at Didion … from auditors and government agencies. The
   indictment alleges that the objective of the conspiracy
   would be achieved by committing three federal of-
   fenses, specifically [violations of § 1001(a)(3), § 1519,
   and § 1505]. …
   … [T]he government must prove that the defendant
   you are considering joined the conspiracy with the in-
   tent of advancing the conspiracy by committing one or
   more of the three federal offenses. The members of the
20                                        Nos. 24-1320 & 24-1321

     conspiracy did not have to agree to commit the same federal
     offense. But for each charged defendant, you must agree
     unanimously that the defendant intended to commit at least
     one of the three federal offenses. You will indicate on the
     verdict form which of the crimes you find that defend-
     ant to have intended.
    The court also provided a special verdict form. In the event
of a guilty verdict on Count 4, the form instructed the jury to
indicate which federal offenses each defendant conspired to
commit. For Clark, the jury selected all three enumerated of-
fenses. For Mesner, the jury selected § 1001(a)(3) and § 1505.
    Clark finds multiple flaws in the court’s jury instruc-
tions—they failed to require the jury to find the proper “ob-
ject” of the conspiracy, erroneously instructed that members
of the conspiracy did not have to agree to commit the same
federal offense, and permitted the jury to reach a non-unani-
mous verdict. We are not persuaded.
    Object of the Conspiracy. The parties agree that the object of
a § 371 conspiracy must be a specific federal offense—rather
than, for example, a conspiracy to conceal unsafe conditions
from regulators. See United States v. Clay, 495 F.2d 700, 710 (7th
Cir. 1974) (“[U]nder 18 U.S.C. § 371 … the object alleged must
be an ‘offense against the United States.’”). The jury instruc-
tions, when read in their entirety, accurately reflected the law.
They made clear that Count 4 charged the defendants “with a
conspiracy to commit three federal crimes.” They also enu-
merated each federal offense, pointed the jury to the elements
of each offense, and required the government to prove that
each defendant intended to commit at least one of the speci-
fied federal offenses.
Nos. 24-1320 & 24-1321                                          21

    To the extent the jurors did not understand the law from
the instructions alone, the special verdict form would have al-
leviated any confusion. See Downing v. Abbott Lab’ys, 48 F.4th
793, 811 (7th Cir. 2022) (the district court did not abuse its dis-
cretion in denying the defendant’s proposed jury instruction
where the verdict form clarified the law); cf. United States v.
Matthews, 505 F.3d 698, 710 (7th Cir. 2007) (special verdict
forms can alleviate juror confusion). It asked the jury to iden-
tify which of the three enumerated federal offenses each de-
fendant conspired to commit.
    Given the instructions’ legal accuracy, we see no error in
the court also describing as an “overarching objective” of the
conspiracy “conceal[ing] violations and unsafe conditions …
from auditors and government agencies.” See United States v.
Treadwell, 760 F.2d 327, 335–37 (D.C. Cir. 1985) (that the dis-
trict court provided a “description of the generic crimes
charged” did not infect the § 371 instruction where the court
also enumerated the specific federal offenses). Nor do we
share Clark’s concern that jurors conflated the object of the
conspiracy with an “overt act”; the court defined “overt act”
in detail for the jury and read the indictment, which alleged
thirty-one overt acts distinct from the alleged objects.
    Conspirator Agreement. Clark next challenges the court’s in-
struction that “[t]he members of the conspiracy did not have
to agree to commit the same federal offense.” At oral argu-
ment, the parties agreed on the law: a defendant charged with
a conspiracy under § 371 must agree with at least one other
conspirator to commit the same federal offense (although they
need not agree on, or take, the same acts to achieve it). See,
e.g., Ocasio, 578 U.S. at 288 (“[C]onspirators must pursue the
same criminal objective, [but need] not agree to commit or
22                                               Nos. 24-1320 & 24-1321

facilitate each and every part of the substantive offense.” (in-
ternal quotation marks omitted)); United States v. Stavroulakis,
952 F.2d 686, 690–91 (2d Cir. 1992) (“Where … the indictment
charges a conspiracy under the ‘offense’ clause of [§ 371], the
conspirators must have agreed to commit the same offense.”);
cf. United States v. Hughes, 310 F.3d 557, 561 (7th Cir. 2002) (ap-
proving jury instruction that provided, “in order to convict
…, [the jury] had to agree unanimously that the defendants
conspired to” commit the same § 371 offense).
    Setting aside whether the court’s instruction accurately
stated the law, the record reveals that Clark not only failed to
preserve his objection, 6 but affirmatively approved of the in-
struction at issue, resulting in waiver. See United States v.
Friedman, 971 F.3d 700, 711–12 (7th Cir. 2020) (“a defendant’s
affirmative approval of a proposed instruction results in
waiver,” which “precludes appellate review” (internal quota-
tion marks omitted)). The court’s proposed Count 4 instruc-
tion contained the precise sentence to which Clark now ob-
jects. Yet when given the opportunity to respond, Clark pro-
vided detailed objections to other aspects of the instruction
and stated that “the remainder of the Court’s proposed in-
struction”—including the sentence challenged—was “unob-
jectionable ….” Clark continued to submit written objections


     6 That Clark initially sought a different instruction on conspirator

agreement does not preserve his challenge for appeal. See United States v.
Irorere, 228 F.3d 816, 825 (7th Cir. 2000) (“‘[M]erely submitting instructions
is not sufficient’ to preserve an objection.” (quoting United States v. Doug-
las, 818 F.2d 1317, 1322 (7th Cir. 1987))); United States v. Requarth, 847 F.2d
1249, 1252 (7th Cir. 1988) (“To preserve an objection to the district court’s
failure to give a proposed jury instruction, a party must do more than
simply submit the proposed instruction for the court’s consideration.”).
Nos. 24-1320 & 24-1321                                                     23

but never challenged the language he highlights on appeal.
See id. at 712 (“By choosing to pursue changes to certain in-
structions and forgoing multiple chances to change others,
[the appellant] waived other possible jury instruction chal-
lenges.”). To the contrary, during the final jury instruction
conference, Clark’s counsel proposed an instruction almost
identical to the one he now opposes. 7 Clark thus waived his
opportunity to challenge it. See United States v. Krahenbuhl, 88
F.4th 678, 686 (7th Cir. 2023) (“[A] defendant cannot later
complain of an instruction he proposed.”); see also Dennis v.
United States, 341 U.S. 494, 500 n.2 (1951) (where “petitioners
themselves requested a charge similar to the one given,” the
federal rules “appear to … bar[] [petitioners] from” challeng-
ing the charge on appeal).
    Juror Unanimity. Finally, we address Clark’s assertion that
the court erred by failing to instruct the jury that it must unan-
imously agree on which offense(s) each defendant conspired
to commit. The government does not dispute this unanimity
requirement, which accurately reflects the law. See, e.g., United
States v. Griggs, 569 F.3d 341, 344 (7th Cir. 2009) (jurors must
agree unanimously on the object of a conspiracy); Hughes, 310
F.3d at 561 (same).
   The court instructed the jury that its verdict, whether
guilty or not guilty, “must be unanimous” on each count. It


   7 Clark’s counsel stated:

   [C]an’t you just instruct that they don’t have to agree on which
   federal offense was committed? ‘The objective of the conspiracy
   would be achieved by committing three federal offenses, specifi-
   cally –’ you list them out[.] ‘– the defendants did not have to agree
   as to which specific offense would be committed.’
24                                         Nos. 24-1320 & 24-1321

provided a specific unanimity instruction on Count 4: the jury
needed to agree “unanimously” that the defendant under
consideration “intended to commit at least one of the three
federal offenses.” Clark did not object to the court’s unanim-
ity instructions, so we review for plain error. See United States
v. Shorter, 874 F.3d 969, 977 (7th Cir. 2017) (reviewing for plain
error the court’s failure to give a specific unanimity instruc-
tion).
    We discern none. The court instructed the jury regarding
the need for unanimity with respect to the object(s) of the of-
fense. It further instructed the jury to indicate on the special
verdict form what crimes each defendant intended to commit.
The form, in turn, depicted the jury’s finding that Clark con-
spired to commit each of the enumerated offenses—all crimes
for which the jury also returned a unanimous guilty verdict.
Compare these instructions with the “overt act” unanimity in-
struction, which provided that although the jury needed to
agree unanimously that the government proved at least one
overt act, it did not need to agree unanimously on a single
specific overt act.
    We reverse only where the instructions as a whole mislead
the jury. See United States v. Madoch, 149 F.3d 596, 599 (7th Cir.
1998). The court’s unanimity instructions, when considered
together with the rest of the jury instructions, sufficiently ap-
prised the jury of the law and do not amount to plain error.
                         *      *      *
    The district court’s § 371 instruction is not a model of clar-
ity. One preferable course would have been to provide a spe-
cific unanimity instruction in line with our pattern instruc-
tions—e.g., that the jury must agree unanimously on which
Nos. 24-1320 & 24-1321                                          25

particular federal offense the defendant conspired to commit.
See William J. Bauer Pattern Criminal Jury Instructions of the Sev-
enth Circuit § 4.04, § 5.08(A) (2023 ed.). That a court could have
made an instruction “clearer,” however, is not the standard.
See Christophel, 92 F.4th at 728 (potentially erroneous jury in-
struction did not require reversal because the instructions al-
together provided “legally accurate directions to the jury”);
Shorter, 874 F.3d at 977 (failure to provide a specific unanimity
instruction did not amount to plain error even though “an in-
struction on unanimity may have been preferable”). Consid-
ering the instructions as a whole, we see no errors warranting
a new trial.
       b. Constitutionality of OSHA Regulation
    Clark also challenges his conviction on Count 4, as well as
Count 9, on the ground that the government relied on an un-
constitutionally vague regulation, namely, OSHA’s house-
keeping regulation for grain-handling facilities, 29 C.F.R.
§ 1910.272. Clark specifically takes issue with subsection (j)(1),
which provides:
   The employer shall develop and implement a written
   housekeeping program that establishes the frequency
   and method(s) determined best to reduce accumula-
   tions of fugitive grain dust on ledges, floors, equip-
   ment, and other exposed surfaces.
    We question Clark’s ability to challenge this regulation,
which covers only “employer[s].” In any event, the govern-
ment did not charge Clark with violating it. Counts 4 and 9
both involved offenses premised on Clark making false state-
ments to the government. We will not weigh in on the consti-
tutionality of an uncharged offense where, as here, Clark’s
26                                             Nos. 24-1320 & 24-1321

dishonesty convictions would stand with or without reliance
on § 1910.272(j)(1), which simply details the requirement that
covered entities maintain a housekeeping program. 8 See ISI
Int’l, Inc. v. Borden Ladner Gervais LLP, 256 F.3d 548, 552 (7th
Cir. 2001) (“[F]ederal courts are supposed to do what they can
to avoid making constitutional decisions, and strive doubly to
avoid making unnecessary constitutional decisions.”).
   We therefore affirm Clark’s conspiracy conviction, as
charged in Count 4, and his § 1505 conviction, as charged in
Count 9.
B. Mesner
     1. Sufficiency of the Evidence for Section 371 Conspiracy
    With Clark’s challenges resolved, we turn to Mesner.
Mesner contests the sufficiency of the evidence to convict him
on Count 4—a § 371 offense predicated on a conspiracy to vi-
olate 18 U.S.C. § 1505 or § 1001(a)(3). We must therefore de-
termine whether sufficient evidence existed to convict Mesner
of conspiring to obstruct Clark’s OSHA deposition (in viola-
tion of § 1505, as charged in Count 9); or of conspiring to make
or use false documents within a federal agency’s jurisdiction
(in violation of § 1001(a)(3), as charged in Count 6).


     8 Clark’s conviction on Count 4 would stand for an independent rea-

son. Of the three federal offenses alleged as the object of the Count 4 con-
spiracy, only § 1505 incorporated the OSHA regulation. Because the spe-
cial verdict form established that the jury also convicted Clark of conspir-
ing to violate §§ 1519 and 1001(a)(3), the success of Clark’s vagueness chal-
lenge would not upset his conviction. See United States v. Sababu, 891 F.2d
1308, 1326 n.6 (7th Cir. 1989) (“[A] conspiracy conviction will be [up]held
as long as the evidence shows that the defendants agreed to commit at
least one of the alleged objectives of the conspiracy.”).
Nos. 24-1320 & 24-1321                                          27

    As relevant to Mesner’s challenge, to prove a conspiracy
under § 371, the government needed to establish “a joint com-
mitment to an ‘endeavor which, if completed, would satisfy
all of the elements of [the underlying substantive] criminal of-
fense.’” Ocasio, 578 U.S. at 287 (quoting Salinas v. United States,
522 U.S. 52, 65 (1997)). A defendant charged under § 371 must
“reach an agreement with the specific intent that the underly-
ing crime be committed by some member of the conspiracy.”
Id. at 288 (internal quotation marks omitted).
    The government all but conceded that the jury lacked suf-
ficient evidence to convict Mesner for conspiring to violate
§ 1505, which prohibits obstruction of agency proceedings.
For good reason. The government presented no evidence that
Mesner knew about Clark’s OSHA deposition, let alone con-
spired with him to obstruct it. See United States v. Coplan, 703
F.3d 46, 68 (2d Cir. 2012) (reversing a § 371 conviction predi-
cated on false statements where “[t]he Government [did] not
contend that [the defendant] even knew about the … deposi-
tions before they occurred, much less discussed [the cocon-
spirators’] testimony”).
    The same is true with respect to the § 1001(a)(3) predicate.
The court instructed the jury that Count 4 charged Mesner
and others with a conspiracy to commit three federal crimes,
including knowingly and willfully making and using false
documents in violation of § 1001(a)(3). It then directed the jury
to the elements for a § 1001(a)(3) violation “in the instructions
for Counts 5 through 9.” Those instructions included only one
mention of § 1001(a)(3): in the instruction on Count 6, which
recounted that the indictment alleged “Clark and James Lenz
knowingly and willfully made and used a false document,
28                                        Nos. 24-1320 & 24-1321

specifically the baghouse logs …, in violation of 18 U.S.C.
§ 1001(a)(3).”
    The government presented no evidence that Mesner had
any involvement with the baghouse logs. Instead, it asks us to
affirm Mesner’s conviction as premised on his falsification of
Didion’s sanitation logbook, as set forth in Count 7. But the
government dismissed Count 7 at the close of evidence. The
court did not instruct the jury on Count 7, nor did it read the
count from the indictment. To the contrary, it directed the jury
to “disregard Count 7” as it was “no longer part of this case.”
    We decline to uphold a conviction premised on a count
that the government dismissed, and on which the court never
instructed the jury. Based on the unique facts of this case, we
reverse Mesner’s Count 4 conviction for conspiracy to commit
a federal offense in violation of § 371.
     2. Wire and Mail Fraud Conspiracy Charge
    We at last consider Mesner’s challenges to Count 1, which
charged Mesner, Clark, and others with a conspiracy to com-
mit wire and mail fraud in violation of 18 U.S.C. § 1349. The
fraud statutes criminalize the use of interstate carriers or
wires for “any scheme or artifice to defraud, or for obtaining
money or property by means of false or fraudulent pretenses,
representations, or promises ….” 18 U.S.C. §§ 1341 (interstate
carriers), 1343 (wires); see also Kousisis v. United States, 145
S. Ct. 1382, 1390 (2025).
    “Scheme to defraud” includes a materiality requirement.
Neder v. United States, 527 U.S. 1, 20, 25 (1999). In Kousisis, the
Supreme Court described the standard to evaluate materiality
as unsettled: a falsity is material either if it “has a natural ten-
dency to influence, or [is] capable of influencing,” the victim’s
Nos. 24-1320 & 24-1321                                          29

decision, Neder, 527 U.S. at 16 (alteration in original) (internal
quotation marks omitted), or, more narrowly, if it goes to “the
very essence of the bargain,” Universal Health Servs., Inc. v.
United States, 579 U.S. 176, 193 n.5 (2016) (quoting Junius Con-
str. Co. v. Cohen, 178 N.E. 672, 674 (N.Y. 1931)). See Kousisis,
145 S. Ct. at 1396.
    A mail or wire fraud conviction also requires the govern-
ment to prove that “money or property was ‘an object of [the
defendants’] fraud.’” Ciminelli v. United States, 598 U.S. 306,
312 (2023) (quoting Kelly v. United States, 590 U.S. 391, 398
(2020)). Because these statutes aim to “protec[t] property
rights,” it is not enough if the defendants simply “engaged in
deception.” Id. (first quoting Cleveland v. United States, 531 U.S.
12, 19 (2000); and then quoting Kelly, 590 U.S. at 398).
   Mesner contests the district court’s denial of his motion to
dismiss the indictment for failure to allege a scheme to de-
fraud. He also challenges the sufficiency of the evidence to
prove such a scheme at trial.
       a. Indictment
    We review de novo the district court’s decision not to dis-
miss the indictment. United States v. Chanu, 40 F.4th 528, 539
(7th Cir. 2022). Under Federal Rule of Criminal Procedure
7(c)(1), an indictment need only “be a plain, concise, and def-
inite written statement of the essential facts constituting the
offense charged ….” Detailed allegations “are not contem-
plated.” United States v. Resendiz-Ponce, 549 U.S. 102, 110
(2007). So long as an indictment “sets forth the offense in the
words of the statute itself” along with “the elements neces-
sary to constitute the offense,” it will generally survive a mo-
tion to dismiss. United States v. Bates, 96 F.3d 964, 970 (7th Cir.
30                                             Nos. 24-1320 & 24-1321

1996) (quoting United States v. Hinkle, 637 F.2d 1154, 1157 (7th
Cir. 1981)).
    Count 1 easily meets this standard. Spanning six pages of
the indictment, the charge tracks the statutory language and
includes the elements of the offense. Still, Mesner urges us to
reverse because, as he sees it, the indictment fails to allege a
scheme to deprive Didion’s customers of a traditional prop-
erty interest, like money.
    We disagree. The government identified the “object” of the
fraud as to obtain money (“millions of dollars”), alleged that
Didion engaged in false and misleading conduct so it could
“sell products,” and claimed that based on Didion’s deceptive
conduct, the company “remained qualified to supply ingredi-
ents … and continued to deliver ingredients … in exchange
for money ….” These allegations suffice. See, e.g., United States
v. Shelton, 997 F.3d 749, 774 (7th Cir. 2021) (the indictment
charged “a viable legal claim” where it alleged that “[t]he ob-
ject of the conspiracy was … to obtain money and property”);
United States v. Porat, 76 F.4th 213, 219–20 (3d Cir. 2023)
(“money was an object of [the defendant’s] scheme” where
the indictment alleged that he “used deception [in rankings]
to ‘attract[] more students to apply to … and pay tuition to’”
his business school). 9


     9 Mesner’s attempt to use Ciminelli to invalidate Count 1 falls flat. In

Ciminelli, the Supreme Court rejected the Second Circuit’s “right to control
theory” of wire fraud, which imposed liability on a defendant for depriv-
ing a victim of a non-traditional property interest: “potentially valuable
economic information necessary to make discretionary economic deci-
sions.” Ciminelli, 598 U.S. at 310; see also United States v. Griffin, 76 F.4th
724, 738 (7th Cir. 2023). Because the government relied solely on the right
Nos. 24-1320 & 24-1321                                                     31

   Mesner appears to separately challenge the indictment on
the ground that Didion’s customers received exactly what
they paid for—Didion’s corn products. Whether construed as
another challenge to the legal theory set forth in the indict-
ment or as a challenge to the facial sufficiency of the facts, we
again disagree.
    Fraud may lie even when the victim receives the product
at issue. See Kousisis, 145 S. Ct. at 1389 (affirming judgment of
wire fraud where the victim received paint work that met its
expectations). A customer does not receive what it paid for if
the defendant misrepresents “an essential element of the bar-
gain.” United States v. Kelerchian, 937 F.3d 895, 912–13 (7th Cir.
2019) (internal quotation marks omitted); 10 see also United
States v. Filer, 56 F.4th 421, 431 (7th Cir. 2022) (keeping a victim
“in the dark about a key fact” of a transaction, unlike conceal-
ing “a mere negotiating position,” gave rise to actionable wire
fraud). The indictment here alleged as much. It claimed, for


to control theory to convict, the Court reversed without evaluating
whether the record also supported a traditional property-fraud theory. Ci-
minelli, 598 U.S. at 310–11 & n.1, 316–17; Kousisis, 145 S. Ct. at 1398. Here,
in contrast, Count 1 alleged that the charged defendants sought to deprive
their customers of money, an interest undisputably covered by the fraud
statutes. See 18 U.S.C. §§ 1341, 1343; United States v. Bolos, 104 F.4th 562,
570 (6th Cir. 2024) (rejecting the defendant’s reliance on Ciminelli where
the indictment alleged that the scheme’s purpose was “to obtain large
sums of money”).
    10 We have not abrogated our decision in Kelerchian. In United States v.

Griffin, we observed that “[w]hatever the fate of Kelerchian after Ciminelli,”
the charged conduct in Griffin violated the federal wire fraud statute. 76
F.4th at 740. Here too, the scheme as alleged falls within the reach of the
fraud statutes, even if the fraud in Kelerchian was “close to the edge.” Id.
(quoting Kelerchian, 937 F.3d at 913).
32                                              Nos. 24-1320 & 24-1321

example, that Mesner conspired to falsify the sanitation log-
book to conceal Didion’s failure to follow its sanitation sched-
ule, that Didion’s customers required Didion to maintain a
food safety certification, and that obtaining and maintaining
such certification required proof of compliance with Didion’s
sanitation program.
    Crafting a facially sufficient indictment “is not a high hur-
dle.” Bates, 96 F.3d at 970. Taking these allegations as true and
viewing them in the light most favorable to the government,
United States v. Yashar, 166 F.3d 873, 880 (7th Cir. 1999), Count
1 easily overcomes it. 11
        b. Evidence
    Finally, we consider the sufficiency of the evidence intro-
duced at trial. To convict for conspiracy to commit mail and
wire fraud, the government needed to prove that Mesner con-
spired to (1) devise a scheme to defraud that involved a ma-
terially false statement or representation; (2) with an intent to
defraud; and (3) used mails and wires in furtherance of his
scheme. See United States v. Powell, 576 F.3d 482, 490 (7th Cir.
2009).
   Mesner confines his arguments on appeal to materiality.
He offers the same challenge to the evidence as he did to the


     11 To the extent Mesner contends that the government must allege (or

prove) monetary loss, the plain text of the mail and wire fraud statutes
and Supreme Court precedent all but foreclose his argument. The fraud
statutes do “not so much as mention loss, let alone require it.” Kousisis, 145
S. Ct. at 1391–92 (rejecting an economic-loss requirement under a fraudu-
lent inducement theory); see also United States v. Leahy, 464 F.3d 773, 786–
87 (7th Cir. 2006) (the wire and mail fraud “statutes do not require the
government to prove … any loss” to the victim).
Nos. 24-1320 & 24-1321                                       33

indictment: Didion’s customers received what they paid for.
In doing so, Mesner fixates on the government’s failure to in-
troduce contracts between Didion and its customers. But
Mesner has provided our court with no law that requires the
government to establish materiality via contractual terms—
rather than, say, witness testimony or other documentary ev-
idence. Cf. United States v. Heon Seok Lee, 937 F.3d 797, 809–10
(7th Cir. 2019) (concluding that information was material
based in part on witness testimony).
    The record here contains sufficient evidence from which a
jury could reasonably conclude that Didion’s customers did
not receive what they bargained for. Multiple witnesses testi-
fied to the importance of Didion’s compliance with its sanita-
tion schedule. A representative from Anheuser-Busch, for ex-
ample, testified that Anheuser-Busch “would stop ship-
ments” from Didion if it learned Didion falsified its cleaning
logs. A General Mills representative, too, testified that had she
known about the falsified sanitation logbook, General Mills
might have stopped purchasing Didion’s products. And a
third-party auditor testified that falsifying the sanitation log-
book could have jeopardized Didion’s food safety certifica-
tion, which many food companies require of their business
partners.
   Mesner knew all of this. He told employees that address-
ing gaps in the sanitation logbook was of the “utmost im-
portance” in anticipation of food safety certification audits
and instructed them to “bring the [logbook] up to date” to
prepare for a visit from Anheuser-Busch. In one email,
Mesner admonished employees for “dropp[ing] the ball” on
the sanitation logbook, which was “not acceptable” given
Didion’s upcoming visit from General Mills and “a surprise
34                                    Nos. 24-1320 & 24-1321

audit from the Department of Ag[riculture] in which the [log-
book] was not complete.” Based on this and ample other evi-
dence, a jury could reasonably find the accuracy of the sanita-
tion logbook material to the bargain between Didion and its
customers. See id. (characterizing a misrepresentation as “ma-
terial” where witnesses testified that the representation was
“extremely important” and that without it, the buyer “would
not have purchased” the defendant’s product).
   Mesner has not overcome the “nearly insurmountable
hurdle” to establish insufficiency of the evidence on Count 1,
so we affirm. Garcia, 919 F.3d at 496.
                       III. Conclusion
    We AFFIRM the court’s evidentiary rulings and jury in-
structions. We AFFIRM Clark’s convictions and Mesner’s con-
viction on Count 1. We VACATE Mesner’s conviction on
Count 4 and REMAND for an entry of judgment of acquittal
on Count 4 and for further proceedings consistent with this
opinion.