[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

F O R THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAY 16, 2007

THOMAS K. KAHN

N o . 05-11622

CLERK

D . C. Docket No. 03-00039-CR-FTM-29-DNF

U N IT E D STATES OF AMERICA,

Plaintiff-Appellee,

versus

ARTEMUS E. WARD, JR.,

Defendant-Appellant.

A p p e al from the United States District Court

fo r the Middle District of Florida

(M a y 16, 2007)

B e fo r e ANDERSON and MARCUS, Circuit Judges, and ALTONAGA,* District

Ju d g e. M A R C U S , Circuit Judge: A rtem u s E. Ward, Jr. ("Ward") appeals his conviction after jury trial and his en su in g sixty-month prison sentence for mail and wire fraud. The charges arose o u t of Ward's involvement in a complex, fraudulent Ponzi scheme,1 whereby m illio n s of dollars in investor funds were obtained by making false representations th at the investments would be used to make loans to used car dealers, that the in v esto rs would be paid high rates of interest, and that the loans would be fully in s u r e d by liens on the dealers' inventories of used cars. Ward claims on appeal th at his conviction should be reversed and his sentence vacated, first, because the e v id e n c e did not sufficiently establish that he actually caused the mailings and wire tran sfers charged in the substantive counts of the indictment, and, second, because th e district court "constructively amended" the indictment by instructing the jury th a t it could convict on the substantive offenses even if it could not reach a verdict o n the conspiracy charge. Finally, Ward challenges his sentence as violating the E x Post Facto Clause of the Constitution. After thorough review, we affirm.

I. In March 2004, a grand jury charged Artemus Ward, Jr., and his partner, Jeffrey Pipher ("Pipher"), in a second superseding indictment with conspiracy, m ail fraud, and wire fraud. Specifically, Ward and Pipher were charged in Count O n e with conspiracy to commit mail and wire fraud in violation of 18U.S.C. § 371 fo r soliciting investor funds through fraudulent representations about how these fu n d s would be used to finance loans to automotive dealerships. Count Two ch arg ed Ward and Pipher with mail fraud in violation of 18U.S.C. §§ 1341 and 2 fo r obtaining investor funds under false pretenses by mailing or causing to be m a ile d a collateralized promissory note in September 2000 to an investor named R ich ard Rabenstein. Count Three charged Ward and Pipher with wire fraud in v io latio n of 18U.S.C. §§ 1343 and 2 for obtaining investor funds under false p reten ses when investors Ellen and Randy Johns wired funds from their bank a cc o u n t to Ward and Pipher on April 24, 2000. Finally, Count Four charged Ward w ith a second mail fraud count in violation of 18U.S.C. §§ 1341 and 2 for o b tain in g investor funds under false pretenses by mailing investment documents to an investor named Larry Baldwin on January 7, 2002.

Before trial, Pipher pled guilty to Counts One, Two, and Three pursuant to a w ritten plea agreement and became a witness for the government, leaving Ward to s ta n d trial alone. After a week-long trial, the jury was not able to reach a verdict as to the conspiracy charge,2 but found Ward guilty of both mail fraud counts and the w ire fraud charge too.

Viewing the evidence in the light most favorable to the jury verdict, the e ss en tia l facts adduced at trial are these. In 1999, Pipher and the defendant Ward in co rp o rated the Collateral Equities Corporation ("CEC") in Nevada and d es ig n ated themselves as president and general manager, respectively. CEC's o sten sib le business objective was to solicit potential investors to invest in c o lla te ra liz ed corporate notes, or promissory notes. The investors were told that th e ir principal would be invested in the "auto floor planning business," which in v o lv ed lending car dealerships the funds to purchase inventory. The titles to the cars were held as collateral, and as each car was sold, the dealer was required to rep ay a portion of the loan. Eventually, the lender would return the title to the d ealer. Through advertisements placed in the Investor's Business Daily paper, the U S A Today newspaper, and a few local California papers, and through a te le m a rk e tin g "boiler room" operation named One Trade, Ward and Pipher enticed m an y investors to part with their money.

W a rd and Pipher promised would-be investors annual returns of between 2 8 % and 50% with maturity dates varying from 6 to 24 months. In theory, this b u sin ess proposition offered investors a spectacular deal -- a high rate of return on in v estm en ts with a low risk that the investments would go awry because the loans w ere fully secured by collateral. From its inception, however, this business scheme w as fraught with deception.

In establishing the initial information packets, promissory notes, and in v esto r contracts for CEC, Pipher took various documents without permission fro m his job with another automobile floor planning operation, Secured Assets In co rp o rated ("SAI"), and with Ward's assistance, copied these documents to create CEC's basic documents. Moreover, the introductory letter to the in f o r m a tio n packet, which both Ward and Pipher signed, falsely represented that C E C had been in business for some three-and-a-half years when, in reality, the co m p an y had just been formed.

Overall, some ninety to one hundred investors, contributing approximately $ 5 million in total to Ward and Pipher, were victimized by the fraudulent scheme.

A t the time of trial, about $3.2 million in investor funds remained unaccounted for an d only about $90,000 had actually been loaned to any car dealership. Although P ip h e r and Ward gave investors a list of seventeen car dealerships with which they claim ed they were doing business, Ward and Pipher actually conducted business w ith only two dealerships and one self-employed car wholesaler. Some of the C E C documents also falsely claimed that CEC was holding title to cars valued at $ 9 0 0 ,0 0 0 . Ward also used some of the money to gamble, and Pipher used some of it to make other personal investments. In fact, most of the investors' money was sp en t by Pipher and Ward for their personal use and to make interest payments, alb eit only to the initial investors. At trial, Ward testified that "in all but a handful o f instances, I was the one who had talked the people into joining the company in th e first place and knew where the money went, whether it was to [Pipher's] a cc o u n t or my account or the account in Monterey." Because Ward claims that the evidence was insufficient as to each of the su b stan tiv e mail and wire fraud counts, we group the evidence for convenience by c o u n t.

A. Count Two: Mail Fraud Against Richard Rabenstein C o u n t Two, the first mail fraud count, charged in the operative paragraph th a t: In or about September, 2000, in the Middle District of Florida and e ls ew h e r e, the defendants, Artemus E. Ward, Jr., and Jeffrey Pipher, fo r the purpose of executing the aforementioned conspiracy to d efrau d , and for obtaining money and property by means of false p reten ses, representations and promises, did knowingly mail and c au s e to be mailed a matter to be delivered by the United States Postal S erv ice, a collateralized CEC promissory note to Richard Rabenstein, w h o had invested approximately $155,000 with the defendants. All in v io latio n of Title 18, United States Code, Sections 1341 and 2. T h e central document alleged in Count Two of the indictment -- a promissory note m a ile d to victim Richard Rabenstein and dated September 1, 2000 -- was signed o n ly by Pipher and not Ward. See Gov. Ex. 4. The note said that CEC "promise[d] to pay . . . monthly interest payments on the principal sum of One Hundred Fifty F iv e Thousand Dollars ($155,000) at the rate of three and one half percent (3.5%) p er month, which calculates to a rate of Forty two percent (42%), per annum." Id.

At trial, the government produced ample evidence establishing that, although Ward w as not responsible for actually mailing the promissory note listed in Count Two, h e was substantially involved in a variety of other mailings and transactions with R ich ard Rabenstein, all designed to further the fraudulent scheme.

Richard Rabenstein's ill-fated business venture with CEC and Ward began w h en he responded in June 1999 to CEC's classified advertisement posted in the In v esto r's Business Daily. He called the number listed in the ad and spoke with P ip h er, who soon thereafter mailed him a brochure signed by both Ward and P ip h er. See Gov. Ex. 2. The introductory letter to the brochure, dated July 15, 1 9 9 9 , falsely represented that, "For the past three and half years we have been in v o lv e d in a very lucrative business in a burgeoning industry." Id. The letter p ro m ised "the very high return of 42% on your loan dollars with a minimum $ 1 0 ,0 0 0 investment." Id. Indeed, the CEC Executive Summary, attached to the in tro d u cto ry letter, falsely said that "[c]urrently CEC is servicing twelve dealers in g reater San Diego and an additional two in the Los Angeles area -- the limit of our cu rren t capitalization of approximately $400k." Id. The back page of the packet, m a rk e d "Company Confidential," falsely listed seventeen car dealerships in San D ieg o County, ten of which had a dollar amount in the column titled "Note B a l[ an c e ]." Id. To assuage any doubts about CEC's legitimacy, Rabenstein was also provided with three references of ostensibly satisfied investors.

Additionally, on July 27, 1999, Ward sent Rabenstein a handwritten letter of in v itatio n , bearing Ward's signature, to make an initial investment. Ward's h an d w ritten letter on CEC stationery read in part: "For your convenience I've en clo sed a pre-paid return express-mail envelope. Because of the high interest we are paying it is important to place your funds with dealers ASAP. As such, you h av e 3 payment options: A) personal check B) bank, or cashier's check C) bank w ir e." Gov. Ex. 63. Rabenstein then used the enclosed prepaid U.S. Postal S e rv ic e envelope to make his first investment of $25,000 by endorsing a personal ch eck made payable to Pipher. In return, Rabenstein received an investor ag reem en t signed again both by Ward and Pipher.

Rabenstein acknowledged that for the first few months after he invested with C E C , the interest payments would arrive on time each month. He then made an ad d itio n al $70,000 investment with a check made payable to both Ward and P ip h e r. Rabenstein's investment, including promised interest payments that were r o lle d over into his principal investment but never paid, ultimately totaled $ 1 5 5 ,0 0 0 .

The promissory note specified in Count Two (dated September 1, 2000) r ef le cts the total amount that Rabenstein had invested. In a subsequent letter m a ile d to Rabenstein, dated November 25, 2000, this time signed by both Ward an d Pipher, CEC explained how rolling interest payments would work. See Gov.

E x . 65. In March 2002, Ward called Rabenstein to tell him there would be an in v esto r meeting in California to assure worried investors that they would be paid th e ir interest and repaid their principal. According to Rabenstein's testimony, Ward s aid that all of the funds were intact. Around this time, Rabenstein noticed an a d v e r tis em e n t in the classified section of Investors Business Daily, dated March 1 1 , 2002. The ad promised "guaranteed residual income for life, 3-4% of in v estm en t paid monthly. 5 year track record." Rabenstein spoke with Ward about th e new advertisements and Ward admitted that he had placed the ads and told R ab en stein that CEC was a fully operational, ongoing business. After Rabenstein b eg an receiving numerous checks that bounced and noticing that missed payments w ere recurring, he contacted FBI Agent Michael DeLeon in March 2002 to co m p lain about the conduct of CEC and its principals.

B. Count Three: Wire Fraud Against Ellen and Randy Johns C o u n t Three, the wire fraud count, charged in the operative paragraph that: O n or about April 24, 2000, in the Middle District of Florida and e ls ew h e r e, the defendants, Artemus E. Ward, Jr., and Jeffrey Pipher, fo r the purpose of executing the aforementioned conspiracy to d efrau d , and for obtaining money and property by means of false p reten ses, representations and promises, did knowingly transmit and cau se to be transmitted by means of wire communication in interstate c o m m e rc e from Charlotte Harbor, Florida, to Del Mar, California, certain writings, signs, signals, and sounds, namely, a wire transfer of $ 4 5 ,0 0 0 from a South Trust Bank account in the name of Ellen R.

Jo h n s and Randy Johns, to a Union Bank of California account in the n am e of Collateral Equities Corporation. All in violation of Title 18, U n ited States Code, Sections 1343 and 2.

Ju st like Richard Rabenstein, Randy Johns first learned about CEC from a n ew sp ap er advertisement in 1999. Johns called the number listed in the ad v ertisem en t and spoke with the defendant Ward, who promised him, too, that his in v estm en ts in CEC would yield an annual interest rate of 45% or a monthly in terest rate of 3.75%. Johns spoke with Ward a few more times over the telep h o n e before flying to California to meet with Ward and Pipher. During this tr ip , Ward and Pipher took Johns on a tour of one dealership and pointed to three o th ers to which Ward said CEC had loaned money. Sufficiently satisfied after the trip about the prospect of investing with CEC, Johns executed a promissory note w ith Ward for some $75,000. He sent a check by mail to Sylvia Maguire, a third p arty who provided a bond for his investment. Over the next year, Randy Johns an d his wife Ellen Johns made four additional investments into the scheme in the am o u n ts of $60,000, $28,000, $10,000, and finally $45,000.

For the Johnses' final investment, which is the subject of Count Three, Ellen Jo h n s sent $45,000 by wire transfer on April 24, 2000, from her bank, South Trust B a n k in Charlotte Harbor, Florida, to Union Bank of California in Del Mar, C alifo rn ia. See Gov. Ex. 6. After October 2001, CEC stopped sending interest p aym en ts. Although Mrs. Johns attempted to contact Ward about this, she receiv ed no response.

C. Count Four: Mail Fraud Against Larry Baldwin F in ally, Count Four, the second mail fraud count, charged in the operative p arag rap h that: O n or about January 7, 2002, in the Middle District of Florida and elsew h ere, the defendant, Artemus E. Ward, Jr., for the purposes of ex ecu tin g the aforementioned conspiracy to defraud, and for obtaining m o n ey and property by means of false pretenses, representations and p ro m ises, did knowingly mail and cause to be mailed a matter to be d e liv e r ed by a private or commercial interstate carrier, Federal E x p r es s, CEC investment documents, to Larry Baldwin, in Sarasota, F lo rid a. All in violation of Title 18, United States Code, Sections 1 3 4 1 and 2.

T h e fourth victim, Larry Baldwin, heard about CEC in the spring of 1999 w h en he saw advertisements placed by CEC in the Investor's Business Daily and th e Wall Street Journal business section. Baldwin called the number listed in the a d s and spoke with the defendant Ward. During this telephone conversation, Ward f als ely claimed that CEC had been in business for more than three years. Ward p ro m ised Baldwin an annual rate of return of 48% on a loan if he invested at least $ 1 0 ,0 0 0 right away, instead of the 42% return that some other investors were o ffered . Additionally, Ward offered Baldwin a finder's fee of approximately $ 2 ,0 0 0 to $3,000 for each additional investor that Baldwin brought in. After the co n v ersatio n , Ward sent Baldwin by Federal Express a CEC brochure containing a c o v e r letter that again falsely claimed CEC had been in existence for three-and-ah alf years. The cover letter, dated September 25, 1999, was again signed both by P ip h e r and Ward. See Gov. Ex. 15. The letter also contained a handwritten ad d itio n by Ward, which read: "An equitable deal for `finder's fee' considerations -- Art [Ward]." Id.

Baldwin called Rabenstein and Johns, whose names were provided as referen ces, and at the time both told Baldwin that they were satisfied with their in v e stm e n ts . Baldwin then decided to invest in December 1999 and contacted W a rd to advise him. Baldwin's first investment of $50,000 in cash initially was su p p o sed to be picked up by Ward or Pipher, but eventually, after assurances from P ip h er, was picked up by a third party. Baldwin was given a receipt for his $ 5 0 ,0 0 0 investment, dated March 1, 2000. See Gov. Ex. 12. Although the sig n atu res on the receipt bore the names of both Ward and Pipher, Baldwin te stif ie d that, based on his handwriting expertise as a "historian," both signatures ap p eared identical, and that it appeared to him that Pipher had signed both names.

Baldwin made a second investment of $48,000 (which included a "rebate" of $ 2 0 0 0 , so that the principal investment actually was $50,000) by sending a cash ier's check on March 31, 2000. See Gov. Ex. 13. Baldwin received a co llateralized promissory note for his second investment on April 1, 2000. This r ec eip t contained the notarized signatures of both Ward and Pipher, and therefore, u n lik e the first, there was no question about the authenticity of Ward's signature.

Sometime around December 2001, Baldwin contacted Ward on behalf of his co u sin , Joseph Blus, who had expressed some interest in investing in CEC. His co u sin had $30,000 in cash, which he wanted Baldwin to invest with CEC on his b eh alf. Ward suggested that Baldwin could send his cousin's $30,000 cash in v estm en t by Federal Express. Sensing Baldwin's concern over sending by mail so large an amount of cash, Ward promised that if anything happened to the co u sin 's money in transit that he would "make good on it. You know us. There's n o problem." Soon after the telephone conversation with Ward, Baldwin received b y Federal Express a contract reflecting the anticipated $30,000 investment. This co llateralized promissory note, dated December 15, 2001, contained Ward's and P ip h er's signatures. See Gov. Ex. 9.

After the FBI commenced an investigation into the affairs of CEC, Ward, an d Pipher, Ward admitted in an interview with special agents of the FBI that he w as responsible for sending the "CEC investment document" on January 7, 2002, w h ich is the subject of Count Four. Ward said: "In furtherance of the continuing e ff o r ts to raise capital for CEC, the attached airbill dated 7 January, 2002, was used to send a client/lender contract/agreement for the purpose of receipting [sic] funds to be used to pay other investors. At the time I sent this I knew investors' funds w o u ld not be utilized as promised." Gov. Ex. 21. Though the "client/lender c o n tr ac t/a g r ee m e n t" was not included in any government exhibit, the Federal E x p ress air bill, showing that Ward sent a package to Baldwin on January 7, 2002, w as admitted in evidence. See id.

Baldwin decided it was too risky to send his cousin's investment in the form o f cash. Since his cousin did not have his own checking account, Baldwin took his co u sin 's funds, went to a Bank of America branch, and drew a $9,000 cashier's ch eck . Having considerable doubts about the efficacy of a CEC investment b ecau se of the recent history of late interest payments, Baldwin advised his cousin n o t to invest. His cousin left the decision of whether to invest his money to the d iscr etio n of Baldwin. Deciding that it would not be prudent to invest his cousin's m o n ey in CEC, Baldwin sought to convert the check back into cash for his cousin.

B a n k of America told Baldwin that it would be a thirty-day wait to get the money b a c k in cash for the cashier's check. Baldwin discussed this with Ward, and Ward a d v is ed him to send the $9,000 cashier's check to CEC. Ward told Baldwin that C E C would not invest the $9,000, but rather deposit the cashier's check in their acco u n t and return the cousin's money in cash. Ward gave Baldwin CEC's bank ro u tin g number and promised Baldwin that he would quickly send back the cash so th at Baldwin's cousin did not have to wait thirty days.

Somehow convinced of the sincerity of Ward's representations, Baldwin ag reed and, on January 10, 2002, sent the Bank of America cashier's check, made o u t to CEC in the amount of $9,000, by Federal Express to Monterey Federal C r ed it Union, CEC's bank in Pacific Grove, California. See Gov. Ex. 11 (Federal E x p r es s sender's voucher). But Ward did not send the cash back as he had p ro m ised . Baldwin unsuccessfully tried to contact Ward several times and finally sp o k e with Pipher. Pipher sent Baldwin a letter, dated February 7, 2002, characterizing the transaction as a "mixup with Art [Ward]" and promising to send h im his money in the next few days. Gov. Ex. 10. Baldwin never received the m o n ey from Pipher either. A t some point during the deliberative process, the jury sent a note to the d istrict court judge, which read: "Judge Steele, to keep you abreast of where we are, the jury is at an impasse regarding the term `conspiracy.' If we can't come to a n agreement on Count One, can we find guilt or innocence on Counts Two, Three a n d Four?" Over Ward's objection, the district court answered the jury's inquiry th is way: With regard to the specific question, that is, whether if you still cannot reach an agreement as to the conspiracy count you may find guilt or in n o cen ce on Counts Two, Three and Four, the answer is yes, with the fo llo w in g qualifications or restrictions. You may find the defendant g u ilty of Count Two, Three and/or Four without finding him guilty of c o n s p ir ac y if you unanimously find that the conduct involved there w as for the purposes of obtaining money and property by means of false pretenses . . . . A second limitation or restriction is if you do not fin d the defendant guilty of the conspiracy, you may not apply the leg al principle I gave you at Page 25 of the instructions [vicarious liab ility under Pinkerton v. United States, 328 U.S. 640, 646 (1946)].

T h e district court also urged the jury to continue deliberating to reach a verdict on th e conspiracy count.

Ultimately, the jury was unable to reach a verdict on the conspiracy charge, b u t found Ward guilty on each of the substantive mail and wire fraud counts.

T h ereafter, the district court sentenced Ward to sixty months in prison on each of th e substantive counts, to be served concurrently. He was assessed $300, but a fine an d restitution were waived. Finally, Ward was sentenced to three years of su p erv ised release. This appeal followed.

II.

W ard broadly makes two claims: (1) the evidence was insufficient to estab lish his role (and therefore his guilt) in each of the mailings and the wire fraud e n u m e ra te d in the three substantive charges; and (2) the district court co n stru ctiv ely amended the indictment, and thereby violated the Fifth Amendment, b y instructing the jury that it could convict him on mail and wire fraud without also c o n v ic tin g him on the conspiracy charge. Ward also argues that it was co n stitu tio n ally required that his post-Booker sentence be no higher than the m ax im u m sentence provided by the U.S. Sentencing Guidelines, since the g u id elin es were legally binding on the dates Ward allegedly committed his o ffen ses and went to trial. We are unpersuaded.

The applicable standards of review are by now well-settled. We review de n o v o a district court's denial of a motion for judgment of acquittal, United States v . Grisby, 111 F.3d 806, 833 (11th Cir. 1997), and we examine the evidence in a lig h t most favorable to the jury verdict, United States v. Jernigan, 341 F.3d 1273, 1 2 7 8 (11th Cir. 2003). Likewise, we review questions of constitutional law de n o v o . United States v. Brown, 364 F.3d 1266, 1268 (11th Cir. 2004). However, sin ce Ward admittedly did not raise in the district court his constitutional challenge to the application of the United States Sentencing Guidelines, our review is only f o r plain error. See United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2 0 0 5 ). Under plain error review, "[a]n appellate court may not correct an error the d efen d an t failed to raise in the district court unless there is: (1) error, (2) that is p la in , and (3) that affects substantial rights. If all three conditions are met, an ap p ellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of ju d ic ia l proceedings." Id. (quotation marks and citations omitted).

A . Co-schemer Liability for Mail Fraud W a rd challenges the sufficiency of the evidence to support all three s u b s ta n tiv e counts, contending that he cannot be held vicariously liable under a co n sp iracy theory because of the mistrial as to Count One. He argues that without th e conspiracy the evidence supports neither his convictions for causing the p articu lar mailings of Counts Two and Four nor the wire transfer charged in Count T h ree.

A factual finding will be sufficient to sustain a conviction if, "after viewing th e evidence in the light most favorable to the prosecution, any rational trier of fact c o u ld have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). "[A]ll reaso n ab le inferences must be drawn in favor of supporting the jury's verdict." U n ited States v. Sawyer, 799 F.2d 1494, 1501 (11th Cir. 1986) (per curiam) (citing G la ss er v. United States, 315 U.S. 60, 80 (1942)).

A sid e from the means by which a fraud is effectuated, the elements of mail f ra u d , 18U.S.C. § 1341,3 and wire fraud, 18U.S.C. § 1343,4 are identical. See B e ck v. Prupis, 162 F.3d 1090, 1095 & n.9 (11th Cir. 1998). Both offenses require th a t a person (1) intentionally participates in a scheme or artifice to defraud another 3 18U.S.C. § 1341 defines mail fraud this way: Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or deposits or causes to be deposited any matter or thing whatever to be sent or delivered by any private or commercial interstate carrier, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail or such carrier according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined under this title or imprisoned not more than 20 years, or both.

4 18U.S.C. § 1343 defines wire fraud in these terms: 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. o f money or property, and (2) uses or "causes" the use of the mails or wires for the p u rp o se of executing the scheme or artifice. United States v. Hewes, 729 F.2d 1 3 0 2 , 1320 (11th Cir. 1984) (mail fraud); United States v. Hasson, 333 F.3d 1264, 1 2 7 0 (11th Cir. 2003) (wire fraud). The first element -- a scheme or artifice to d efrau d -- "involves the making of misrepresentations intended and reasonably calcu lated to deceive persons of ordinary prudence and comprehension." Beck, 1 6 2 F.3d at 1095. As for the second element, a person "causes" the mails to be u sed within the meaning of 18U.S.C. § 1341, or the wires to be used within the m ean in g of 18U.S.C. § 1343, when he acts "with knowledge that the use of the m ails [or wires] will follow in the ordinary course of business, or where such use c an reasonably be foreseen, even though not actually intended." Pereira v. United S tates, 347 U.S. 1, 8-9 (1954).

Although Ward concedes that the evidence is more than sufficient to estab lish his participation generally in the overall scheme to defraud, he says the g o v e r n m e n t did not prove that he caused the specific mailing of the September 2 0 0 0 promissory note to Rabenstein to support Count Two, the wire transfer of $ 4 5 ,0 0 0 on April 24, 2000, from Ellen Johns to Pipher's bank account to support C o u n t Three, nor the mailing of the CEC investment document on January 7, 2002, to Baldwin to support Count Four. W ard claims that a defendant must either personally commit each element of m ail and wire fraud, or at least aid and abet another in doing so. It is not enough, h e says, that the evidence sufficiently establishes that he knowingly and willfully p articip ated in the fraudulent scheme, and that a co-schemer used the mails or w ires for the purpose of executing the scheme. Ward's argument rests upon a flaw ed understanding of the applicable law.

For nearly as long as mail fraud has been a federal crime, it has been the law in this Circuit, and in the former Fifth Circuit, that a defendant may be convicted of m ail fraud without personally committing each and every element of mail fraud,5 so long as the defendant knowingly and willfully joined the criminal scheme, and a c o - sc h e m e r used the mails for the purpose of executing the scheme. As far back as 1 9 3 2 , in United States v. Smith, 61 F.2d 681 (5th Cir. 1932),6 a panel of the former F ifth Circuit, in construing a forerunner to 18U.S.C. § 1341, held that "[t]he guilt o f the accused who were on trial was not dependent upon either of them taking part in causing the alleged use of the mails, if another accused who was a party to the alleg ed scheme to defraud . . . in pursuance of that scheme and for the purpose of e x e cu tin g it or attempting to do so, knowingly caused the alleged use of the mails." Id. at 685. Again in Belt v. United States, 73 F.2d 888 (5th Cir. 1934), a panel of th e former Fifth Circuit wrote: It may be assumed that Belt did not sign or cause to be mailed any of th e letters set out in the indictment; but, since he was a party to the sch em e and to the false representations, it is immaterial that all the letters designed to promote that scheme were signed and mailed by K elly. A partnership in crime being established against both a p p e lla n ts , the acts of Kelly in furtherance of the common criminal en terp rise were in law the acts of Belt also.

Id. at 889. Still again in United States v. Bright, 588 F.2d 504 (5th Cir. 1979), a p an el of the former Fifth Circuit wrote: "[I]t is not necessary that a defendant actu ally do any of the mailing so long as there is sufficient evidence to tie him to th e fraudulent scheme which involves the use of the mails." Id. at 509 (quotation m ark s omitted).

This principle remains no less valid today. As a panel of this Court noted recen tly: "It is well settled in this circuit that so long as one participant in a f ra u d u le n t scheme causes a use of the mails in execution of the fraud, all other k n o w in g participants in the scheme are legally liable for that use of the mails." United States v. Munoz, 430 F.3d 1357, 1369 (11th Cir.) (quoting United States v. T o n ey, 598 F.2d 1349, 1355 (5th Cir. 1979)), cert. denied, 126 S. Ct. 2305 (2006).

Indeed, United States v. Funt, 896 F.2d 1288 (11th Cir. 1990), is exactly on point.

Funt was acquitted by a jury of one conspiracy count as well as two counts of mail frau d , but found guilty on two other counts charging him with mail fraud and one co u n t of wire fraud. Id. at 1291. A panel of this Court held that "[a]cquittal on the co n sp iracy count . . . does not mean that the jury necessarily rejected the g o v ern m en t's proof of Funt's involvement in the scheme. To the contrary, the ju ry's guilty verdict on the mail fraud count belies Funt's assertion." Id. at 1293.

"Conspiracy and mail fraud are not the same offense, and the fact that Funt was a cq u itte d of conspiracy is not inconsistent with his being a member of a more lim ited mail fraud scheme." Id. at 1294 n.4. The principle applies a fortiori in this case where the jury found Ward guilty of mail and wire fraud, but simply could not reach a verdict on the conspiracy count. Just as in Funt, the jury in this case n ecessarily found that Ward was involved in the fraudulent scheme, even though it co u ld not reach a verdict on the conspiracy count.

Further, just as in the present case, the defendant in Funt claimed that his lack of involvement in causing a specific mailing necessitated a reversal of his mail f ra u d conviction: "Funt argues that he had no actual knowledge of the Howard letter, did not receive it and did not cause it to be sent, and that he was totally d isasso ciated from the Palm Beach franchise." Id. at 1294. Again, we flatly rejected the claim -- "the law is clear that one need not personally mail or receive m ail in order to be liable under mail fraud so long as co-schemers do so." Id.7 B . Defendant's Knowing Participation in the Fraudulent Scheme T h e government presented more than enough evidence to establish beyond a r ea so n a b le doubt that the defendant knowingly and intentionally participated for an ex ten d ed period in a false and fraudulent scheme to induce many unwitting 7 As best we can tell, our Court has never deviated from the principle that if one participant in a fraudulent scheme causes a use of the mails in execution of the fraud, all other knowing participants in the scheme are legally liable for that use of the mails. See, e.g., Munoz, 430 F.3d at 1369; Funt, 896 F.2d at 1294; United States v. Dynalectric Co., 859 F.2d 1559, 1578 (11th Cir. 1988); United States v. Plotke, 725 F.2d 1303, 1307 (11th Cir. 1984); United States v. Johnson, 700 F.2d 699, 701 (11th Cir. 1983) (per curiam); United States v. Martino, 648 F.2d 367, 394 (5th Cir. June 1981); United States v. Rodgers, 624 F.2d 1303, 1308-09 (5th Cir. 1980); Toney, 598 F.2d at 1355; Bright, 588 F.2d at 509; Weiss v. United States, 120 F.2d 472, 475 (5th Cir. 1941); Belt, 73 F.2d at 889; Smith, 61 F.2d at 685. In an early mail fraud case, the Supreme Court observed that "[w]here 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." Pereira v. United States, 347 U.S. 1, 8-9 (1954); see also United v. Ross, 131 F.3d 970, 985 (11th Cir. 1997) (quoting Pereira, 347 U.S. at 8-9, and applying it to wire fraud). Since Pereira, we have repeated in binding precedent that as long as "one participant in a fraudulent scheme causes a use of the mails in execution of the fraud, all other knowing participants in the scheme are legally liable for that use of the mails." Toney, 598 F.2d at 1355; see also Funt, 896 F.2d at 1294. In some of our wire fraud cases, however, we have required that the use of the wires be a foreseeable consequence of the fraudulent scheme. See United States v. Hewes, 729 F.2d 1302, 1324 (11th Cir. 1984) (cited in Funt, 896 F.2d at 1294); United States v. Snyder, 505 F.2d 595, 601 (5th Cir. 1974). At all events, the evidence in this case amply established that the mails and the wires were used repeatedly in the course of CEC's business both by the defendant and Pipher, and that the use of these instruments was wholly foreseeable to each of the participants in the fraudulent scheme.

See infra at 27-29. Moreover, the evidence sufficiently established that the defendant Ward acted as a principal who actually caused the wire transfer enumerated in Count Three and the mail used in Count Four. See id. in v esto rs to invest millions of dollars in CEC. The record amply shows that from th e very first investor CEC solicited, Ward well knew he was engaging in deceitful an d fraudulent practices designed to bilk investors.

Ward knew that CEC was formed in 1999 and yet he helped create and sig n ed his name to CEC brochures in 1999 claiming that CEC had been an ongoing b u s in e s s for some three-and-a-half years. Ward also knew that the CEC brochures a n d documents he helped create were based on documents that Pipher had taken fro m his previous employer, as Ward confessed: T h e technical documents of our CEC brochure, e.g, "investor a g r ee m e n t," "dealer agreement" (between CEC and car dealers) were co p ies, almost verbatim by Jeffrey Pipher from the firm he previously w o rk ed for that did "auto flooring" in the San Diego area. He told me th at this firm had paid $25,000 dollars for making these agreements leg ally acceptable and not in violation of any securities laws, etc.

However, as time went by (a few months) and feedback came from c lie n ts , especially that we were a "Nevada" corporation, I realized th ese documents were not entirely legal and were therefore risky to co n tin u e using, I knowingly and willingly continued to use these d o cu m en ts, with minor variations.

Gov. Ex. 21.

M o reo v er, the jury plainly was entitled to reject his testimony and consider it as substantive evidence of his guilt. United States v. Vazquez, 53 F.3d 1216, 1 2 2 5 - 2 6 (11th Cir. 1995); United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1 9 9 5 ) . Indeed, by his own admission Ward knew no later than November 2001 that th e money was not being invested as promised and that the scheme created was a P o n zi scheme. Ward signed a damning statement for FBI Agent Michael DeLeon o n April 30, 2002. He wrote: In the late autumn of 2001, due to a variety of factors, I became g r a v e ly concerned that no new monies being raised were being placed w ith dealers. On November 15, during dinner at Jeffrey Pipher's h o m e I confronted him about this and he insisted he could do "better at real estate." In spite of this statement on his part, I continued to h elp raise substantive new capital for CEC, knowing very little would b e going to car dealers, just as I had continued to do with the illegal a g r e e m e n ts .

Gov. Ex. 21.

Ward further admitted in his written statement to Agent DeLeon that he d ir ec tly used the mails in furtherance of the scheme: I, Artemus E. Ward do state that Amy Beth Davis [Ward's girlfriend at the time] was acting solely on my instructions as manager of CEC in all instances of initiating bankwires or getting cashier's checks. I u tiliz ed U.S. Postal Service and other couriers as part of the normal b u sin ess operations of CEC that I later realized represented a sch em e/frau d , and continued.

Id.

Thus, contrary to Ward's self-portrayal at trial as a hapless employee of P ip h er 's, the evidence elaborately paints Ward as being deeply enmeshed in CEC's frau d u len t business.

C. Sufficiency -- Count Two A s for his conviction on Count Two, which, again, alleged that Ward "did k n o w in g ly mail and cause to be mailed a matter to be delivered by the United S tates Postal Service, a collateralized CEC promissory note to Richard Rabenstein" in September 2000, the government acknowledges that Ward did not write, sign, or cau se the mailing of the promissory note to Rabenstein, in September 2000. But, ag ain , the law in this Circuit is clear: we do not require the actual mailing, or for th at matter the aiding and abetting of a specific mailing, in a mail fraud case.

Rather, the government must show, beyond a reasonable doubt, that one participant in a fraudulent scheme knowingly caused the use of the mails in furtherance of the sch em e, and that the defendant knowingly participated in the scheme or artifice to d efrau d . See Funt, 896 F.2d at 1294. Indeed, Ward acknowledges that there is m o re than enough evidence here that Pipher, Ward's co-schemer, knowingly cau sed the mailing of the promissory note listed in Count Two. Moreover, the e v id e n c e shows that the mails were utilized repeatedly by CEC, Ward and Pipher, a n d that the mailing of the collateralized promissory note by Pipher in September o f 2000 was altogether foreseeable to the defendant. The law requires no more.

D. Sufficiency -- Count Three A s for Count Three, the record contradicts Ward's claim that the evidence co n cern in g his participation in wire fraud was insufficient. The record is replete w ith evidence showing that Ward acted as a principal in causing the Johnses' wire tran sfer of $45,000 on April 24, 2000, from Florida to California.

To begin with, Ward was the primary contact for Randy and Ellen Johns w h e n they first invested in CEC. When Randy Johns first saw the CEC newspaper a d v e r tis em e n t, it was Ward who answered his initial phone inquiries and promised h im that his investments in CEC would yield a remarkable annual interest rate of 4 5 % or a monthly interest rate of 3.75%. It was the defendant Ward who co n v in ced Randy Johns to fly to California to meet with him and Pipher. And it w as Ward whom Ellen Johns contacted when the interest payments ceased to arrive in the mail after October 2001. In light of this involvement in the Johnses' in v estm en ts in CEC, there was more than enough evidence to allow a jury to find th at Ward in fact "caused" Ellen Johns to make the wire transfer on April 24, 2000.

B u t, again, even if Ward had not caused the particular wire transfer, under our law h e would still be liable for the wire fraud. Moreover, the wires were repeatedly u s e d in the course of business by CEC, Ward and Pipher, and, undeniably, it was fo reseeab le that the wires would be used. See Pereira, 347 U.S. at 8-9.

E. Sufficiency -- Count Four F in ally, Count Four alleged that Ward "[o]n or about January 7, 2002 . . . cau se[d ] to be mailed a matter to be delivered by a private or commercial interstate carrier, Federal Express, CEC investment documents, to Larry Baldwin." Again, w h ile it was unnecessary for the government to show that Ward actually caused the sp ecific mailing because of his knowing involvement in the scheme to defraud, in fact the evidence supports the government's claim that Ward did cause this m ailin g . Ward's signed confession to FBI Agent Michael DeLeon on May 1, 2002, ad m itted his participation in this mailing: In furtherance of the continuing efforts to raise capital for CEC, the a tta ch e d airbill dated 7 January, 2002, was used to send a client/lender c o n tr ac t/a g r ee m e n t for the purpose of receipting [sic] funds to be used to pay other investors. At the time I sent this I knew investors' funds w o u ld not be utilized as promised.

Signed, Artemus Ward.

G o v . Ex. 21 (emphasis added). Moreover, the Federal Express air bill shows that a p ack ag e was sent from Ward to Baldwin on January 7, 2002. Both the admission a n d the Federal Express air bill were admitted at trial. Quite simply, the evidence w as sufficient to sustain the jury's verdict on each substantive count.

III.

W ard next argues that the district court "constructively amended" the in d ic tm e n t by instructing the jury that it could convict Ward on the mail and wire f ra u d charges even if it could not reach a verdict on the conspiracy charge. Ward s ay s that because the substantive counts specifically referenced the conspiracy ch arg e enumerated in Count One, the district court's response amounted to a co n stru ctiv e amendment in violation of the Fifth Amendment's Due Process C lau se. Again, we disagree.

"The Fifth Amendment to the Constitution provides that `no person shall be h eld to answer for a capital, or otherwise infamous crime, unless on a presentment o r indictment of a Grand Jury. . . .' A fundamental principle stemming from this am en d m en t is that a defendant can only be convicted for a crime charged in the in d ictm en t. It would be fundamentally unfair to convict a defendant on charges of w h ic h he had no notice." United States v. Keller, 916 F.2d 628, 632-633 (11th Cir. 1 9 9 0 ) . These Fifth Amendment concerns would be implicated if, for example, an in d ictm en t were amended so that a defendant was convicted of charges not in clu d ed in the indictment. Thus, we consider an indictment to be constructively am en d ed "when the essential elements of the offense contained in the indictment a re altered to broaden the possible bases for conviction beyond what is contained in the indictment." United States v. Narog, 372 F.3d 1243, 1247 (11th Cir. 2004) ( q u o tin g Keller, 916 F.2d at 634). An amendment, however, must be distinguished fro m a variance. "A variance occurs when the facts proved at trial deviate from the facts contained in the indictment but the essential elements of the offense are the sam e." Keller, 916 F.2d at 634; see also United States v. Flynt, 15 F.3d 1002, 1 0 0 5 -0 6 (11th Cir. 1994). Whereas a variance requires reversal only when the d efen d an t can establish that his rights were substantially prejudiced, constructive am en d m en t of the indictment is per se reversible error. Keller, 916 F.2d at 633.

In the indictment in this case, all three of the substantive counts alleged that W ard or Pipher, "for the purpose of executing the aforementioned conspiracy to d efrau d , and for obtaining money and property by means of false pretenses, rep resen tatio n s and promises, did knowingly" use the mails or wires (emphasis ad d ed ). Moreover, each count was prefaced by language indicating that all of the alleg atio n s in the preceding conspiracy count were realleged and incorporated by referen ce. After the jury was unable to reach a verdict on the conspiracy count and s en t a note to the judge asking, "If we can't come to an agreement on Count One, c an we find guilt or innocence on Counts Two, Three and Four?," the district court resp o n d ed by telling the jury to continue deliberating on the conspiracy count and th at the jury "may find the defendant guilty of Count Two, Three and/or Four w ith o u t finding him guilty of conspiracy if you unanimously find that the conduct in v o lv ed there was for the purpose of obtaining money and property by means of f als e pretenses." The substantive offenses of mail and wire fraud are distinct from the offense o f conspiracy. See Funt, 896 F.2d at 1294 n.4 ("Conspiracy and mail fraud are not th e same offense, and the fact that [the defendant] was acquitted of conspiracy is n o t inconsistent with his being a member of a more limited mail fraud scheme.").

But Ward argues that because the language of the indictment added the words, "for th e purpose of executing the aforementioned conspiracy to defraud" to the req u irem en t that the mail or wire was used "for obtaining money and property by m ean s of false pretenses, representations and promises," the allegata effectively m a d e the conspiracy a necessary part of the substantive offenses, and the district co u rt wrongfully amended the charges. We disagree.

Ward has conflated wholly unnecessary surplusage that referenced the c o n s p ir ac y with the essential substantive charges contained in Counts Two, Three, an d Four. As the Supreme Court held in United States v. Miller, 471 U.S. 130, 140 (1 9 8 5 ), and as we acknowledged in United States v. Cancelliere, 69 F.3d 1116, 1 1 2 1 (11th Cir. 1995), surplusage in an indictment may be deleted without any leg al error. Indeed, "[a] part of the indictment unnecessary to and independent of th e allegations of the offense proved may normally be treated as a useless averment th at may be ignored." Miller, 471 U.S. at 136 (quotation marks omitted). It is not a n amendment to a charge to "drop from an indictment those allegations that are u n n e c es sa ry to an offense that is clearly contained within [the indictment]." Id. at 1 4 4 . "[W]here an indictment charges several offenses, or the commission of one o ffen se in several ways, the withdrawal from the jury's consideration of one o f f en s e or one alleged method of committing it does not constitute a forbidden am en d m en t of the indictment." Id. at 145. The district court's instruction, that if th e jury was unable to reach agreement on the conspiracy charge it could still co n v ict on the substantive charges, did not amount to a constructive amendment.

Ward nevertheless cites to two cases in support of his argument, United S tates v. Cancelliere, 69 F.3d 1116 (11th Cir. 1995), and Stirone v. United States, 3 6 1 U.S. 212 (1960); both are distinguishable. In Cancelliere, we deemed the d istrict court's striking of the word "willfully" from an indictment after the close of ev id en ce to be a "constructive amendment" when the defendant was charged with "k n o w in g ly and willfully" committing the offense of money laundering.

Cancelliere, 69 F.3d at 1121. Although the term "willfully" was included in the c h a rg e by mistake and undeniably was not a necessary element of money la u n d e rin g , a panel of this Court noted that the government had moved the district c o u r t to delete the requirement that they prove willfulness after Cancelliere had alread y prepared and put on a defense based upon good faith. Id. In concluding th at the redaction impermissibly broadened the scope of the indictment and m an d ated reversal, we emphasized that the defendant's whole defense rested on his lack of willfulness. Id. at 1122. In this case, notably, there was no alteration of the m en s rea requirements for mail or wire fraud, or for that matter of any of the e le m e n ts of the § 1341 or § 1343 charges. Nor does a fair review of this record su p p o rt the suggestion that the entire thrust of the defense dealt only with the co n sp iracy charge.

Stirone is even less on point. The issue there was "whether [Stirone] was co n v icted of an offense not charged in the indictment," when the indictment a lle g e d obstruction of sand importation, but the evidence introduced at trial sh o w ed interference with steel exportation. Stirone, 361 U.S. at 213. The Supreme C o u rt concluded that the offense proved at trial was not fully contained in the in d ictm en t because trial evidence had "amended" the indictment by broadening the p o s sib le bases for conviction from that which appeared in the indictment. Id. at 2 1 6 - 1 7 . Stirone is markedly different from the case before us. The district court h e r e did not amend the indictment to add a new offense. The substantive offenses o f mail and wire fraud were fully contained in the indictment. In fact, the essential lan g u ag e of the mail and wire fraud statutes was tracked in the substantive charges.

All of the elements of mail and wire fraud were included in Counts Two, Three, a n d Four. None was removed by the court's instructions. See Miller, 471 U.S. at 1 4 0 ("Miller was tried on an indictment that clearly set out the offense for which h e was ultimately convicted. His complaint is not that the indictment failed to c h a rg e the offense for which he was convicted, but that the indictment charged m o r e than was necessary."). The mail and wire fraud counts were charged sep arately from the conspiracy. The fact that the substantive counts referenced the co n sp iracy in no way undermined Ward's defense or his right to fair notice of the o u tstan d in g charges.

IV.

F in ally, Ward argues that the Fifth Amendment, the Sixth Amendment, the D u e Process Clause, and the Ex Post Facto Clause of the Constitution require that h is sentence be no higher than the maximum sentence provided for under the sen ten cin g guidelines, since the sentencing guidelines were legally binding on the d ate Ward committed the substantive crime and the date on which he went to trial.

This argument is without merit. Ward concedes that this Court has already flatly rejected this argument. As Ward recognizes, we are bound by our previous d e c is io n in United States v. Duncan, 400 F.3d 1297, 1306-08 (11th Cir. 2005), cert. denied, 126 S. Ct. 432 (2005), which held that there was no ex post facto v io la tio n because at the time the defendant committed the offense, "the recognized state of the law looked to the U.S. Code as establishing maximum sentences." Id. at 1308; see also Cargill v. Turpin, 120 F.3d 1366, 1386 (11th Cir. 1997) ("The la w of this circuit is `emphatic' that only the Supreme Court or this court sitting en b a n c can judicially overrule a prior panel decision."). We rejected an identical a rg u m e n t made in United States v. Thomas, 446 F.3d 1348, 1353-55 (11th Cir. 2 0 0 6 ), and again in United States v. Martinez, 434 F.3d 1318, 1323-24 (11th Cir.) (p er curiam), cert. denied, 126 S. Ct. 2946 (2006). Accordingly, we are bound to r eje ct Ward's invitation to reconsider this issue.

A F F IR M E D .

* Honorable Cecilia M. Altonaga, United States District Judge for the Southern District of Florida, sitting by designation. 1 "The term 'Ponzi scheme' is derived from Charles Ponzi, a famous Boston swindler. . . . Generically, a Ponzi scheme is a phony investment plan in which monies paid by later investors are used to pay artificially high returns to the initial investors, with the goal of attracting more investors." United States v. Silvestri, 409 F.3d 1311, 1317 n.6 (11th Cir. 2005) (internal citations and quotation marks omitted).

2 The government eventually dismissed the conspiracy count lodged against Ward on November 29, 2004.

5 "Because [t]he 'scheme or artifice to defraud' and 'for the purpose of executing' language in the mail and wire fraud statutes are construed identically, we borrow freely from cases construing Section 1341" mail fraud in analyzing wire fraud under Section 1343. United States v. Evans, 473 F.3d 1115, 1118 n.3 (11th Cir. 2006) (citation and quotation marks omitted), petition for cert. filed, --- U.S.L.W. --- (U.S. Mar. 30, 2007) (No. 06-1325).

6 Fifth Circuit cases decided before October 1, 1981, Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), as well as decisions by a Unit B panel of the former Fifth Circuit, Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir. 1982), are binding precedent in the Eleventh Circuit.