MEMORANDUM OPINION AND ORDER
ROBERT M. DOW, Jr., District Judge.
Before the Court are Defendant Debra Schultz's motion for acquittal and new trial  and her motion for leave to file a brief in excess of fifteen pages . For the reasons set forth below, the Court grants Defendant's request to file a longer brief , but denies Defendant's motion for acquittal and new trial .
Defendant Debra Schultz was charged with three counts of wire fraud, 18 U.S.C. § 1343, in connection with a scheme to defraud a non-profit organization that coordinated organ and tissue donations in Illinois and Indiana ("Organization A"). Two other defendants were charged alongside Defendant, one of whom was her cousin, co-Defendant Shari Hansen. Hansen was the non-profit's auditing coordinator and created false organ donation invoices to siphon money from her employer. Some of the invoices and checks were made out to Defendant's minor son and identified him as the doctor performing the non-existent procedure. Dozens of checks were deposited into bank accounts controlled by Defendant. Hansen maintains that Defendant kept some of this money for herself, and Defendant maintains that she did not. Ultimately, Hansen pled guilty, cooperated with the Government, and testified against Defendant at trial.
Trial commenced on January 9, 2017. After a six-day trial, the jury returned a guilty verdict on all three counts. Defendant has now moved for acquittal and a new trial .
II. Legal Standard
Under Federal Rule of Criminal Procedure 29(a), a defendant may move for entry of a judgment of acquittal on "any offense for which the evidence is insufficient to sustain a conviction." Fed. R. Crim. P. 29(a). A "Rule 29 judgment of acquittal is a substantive determination that the prosecution has failed to carry its burden." Smith v. Massachusetts, 543 U.S. 462, 468 (2005). The Court must "construe the evidence in the light most favorable to the government, asking whether a rational trier of fact could have found the elements of the crime beyond a reasonable doubt." United States v. Weimert, 819 F.3d 351, 354 (7th Cir. 2016). To prevail on a sufficiency of evidence challenge, Defendant "must show that no rational trier of fact could have found that the government proved the essential elements of the crime beyond a reasonable doubt." United States v. Griffin, 684 F.3d 691, 694 (7th Cir. 2012).
Under Federal Rule of Criminal Procedure 33, a "court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). "A jury verdict in a criminal case is not to be overturned lightly, and therefore a Rule 33 motion is not to be granted lightly." United States v. Santos, 20 F.3d 280, 285 (7th Cir. 1994) (internal quotation marks omitted). The rule is "reserved for only the most extreme cases." United States v. Hagler, 700 F.3d 1091, 1101 (7th Cir. 2012) (quoting United States v. Linwood, 142 F.3d 418, 422 (7th Cir. 1998)). "[C]ourts have interpreted the rule to require a new trial `in the interests of justice' in a variety of situations in which the substantial rights of the defendant have been jeopardized by errors or omissions during trial." United States v. Kuzniar, 881 F.2d 466, 470 (7th Cir. 1989).
Defendant seeks a judgment of acquittal or new trial for three reasons: (1) Defendant's Fifth Amendment rights were violated when the Court instructed the jury—consistent with the Seventh Circuit's pattern jury instructions—that the wire fraud statute can be violated without gain to Defendant; (2) there was insufficient evidence to convict Defendant of wire fraud based on Hansen's testimony; and (3) the Court erred in excluding certain text messages. The Court takes each argument in turn.
A. "No Gain" Jury Instruction
Before the final jury instruction conference, Defendant indicated that she would be objecting to the Government's proposed jury instructions on the basis of Stirone v. United States, 361 U.S. 212 (1960). The Court asked Defendant to brief her objection, and she submitted a short, half-page argument that largely summarized Stirone and United States v. Miller, 471 U.S. 130 (1985). [See 129, at 2.] When it came to applying those two cases, Defendant framed her argument this way:
The Court overruled that objection, providing at least eight reasons for doing so: (1) the indictment merely included the open-ended statement that Defendant and her two co-Defendants "fraudulently converted to their own benefit the funds obtained from" Organization A, which was consistent with the proof at trial; (2) Defendant failed to submit any evidence of what the grand jury was told; (3) regardless, the terms of the indictment, not grand jury testimony, are what can be constructively amended; (4) gain is not an element of wire fraud, and allegations that are unnecessary to the elements of the offense can be dropped from the indictment without causing a constructive amendment under Miller; (5) withdrawing proof of personal gain narrows rather than broadens the indictment, which is permissible under Miller; (6) Defendant had notice of the charge from the indictment; (7) reference to "benefit" in the indictment was, at best, surplusage and could not increase the elements that the government was required to prove at trial; and (8) Defendant's proposed remedy (striking Government's proposed "aiding and abetting" instruction) did not match any alleged Stirone violation. [132, at 3-6.] The jury was ultimately given the Seventh Circuit's pattern instruction that success is not required to prove wire fraud. See Pattern Criminal Jury Instructions of the Seventh Circuit for 18 U.S.C. §§ 1341 & 1343 at 442 (2012); [134, at 26 ("The wire fraud statute can be violated whether or not there is any loss or damage to the victim of the crime or gain to the defendant.")].
Defendant argues that this was error, and attempts to respond to some of the Court's reasons over the first twenty pages of her post-trial brief.
These arguments reflect a fundamental misunderstanding of the constructive amendment doctrine. It is not about "factual theories." It is about elements. "The general rule in this area is that the trial court cannot amend the indictment at the instruction stage by eliminating or changing an essential or material element of the crime." United States v. Williams, 798 F.2d 1024, 1033 (7th Cir. 1986) (emphasis added). "An `essential' or `material' element of a crime is one whose specification with precise accuracy is necessary to establish the very illegality of the behavior and thus the court's jurisdiction." United States v. Cina, 699 F.2d 853, 859 (7th Cir. 1983). "Indictments often contain superfluous background information that is not essential to the elements of the charge." United States v. Swanson, 394 F.3d 520, 525 (7th Cir. 2005). "Allegations in an indictment that are not essential to prove the crime charged are mere surplusage and need not be proved nor addressed in instructions to the jury." Id. at 525-26; see also Miller, 471 U.S. at 136 ("A part of the indictment unnecessary to and independent of the allegations of the offense proved may normally be treated as `a useless averment' that `may be ignored.'" (citation omitted)). Thus, to raise the prospect of a constructive amendment, the government at trial must try to prove an essential or material element of the crime in a meaningfully different way than the manner set out in the indictment. Defendant does not cite a single case to the contrary.
Defendant's argument that "[t]he basis for reversal in Stirone has nothing to do with the elements of the crime" but was "based on the factual theories presented" misreads Stirone. [154, at 18.]
Indeed, the Seventh Circuit has reached this result time and time again. For example, in Tello, the Seventh Circuit rejected that there was a constructive amendment of the RICO conspiracy alleged in the defendant's indictment. 687 F.3d at 794-76. The Court explained that "any allegation as to overt acts, including predicate acts of racketeering, that [defendant] may have committed in furtherance of the charged conspiracy, would constitute surplusage rather than an essential element of the charged conspiracy." Id. at 796. "Such surplus allegations thus would not support a later charge of constructive amendment based on a divergence between the acts alleged in the indictment and the acts, if any, acknowledged in the guilty plea." Id.
In Franco, the district court instructed the jury that the government was not obligated to prove the specific acts referenced in the indictment in determining whether the defendant conspired to possess with intent and distribute marijuana. 874 F.2d at 1142-43. The Seventh Circuit affirmed, finding no constructive amendment, because "the government is not required to allege or prove an overt act in furtherance of the conspiracy" and "the district court [need not] instruct the jury concerning the extra paragraphs in an indictment that describe the objects and activities of the conspiracy." Id. at 1144. Much like the instant case, the Seventh Circuit noted that the defendant "fails to provide any authority to support his claim that unessential allegations contained in the count must be proven beyond a reasonable doubt." Id. Because the particular acts referenced in "paragraphs numbered two through ten in his indictment were not essential elements of the charge * * * the district court was correct in refusing to instruct the jury that the government must prove the allegations in paragraphs two through ten." Id.; see also Williams, 798 F.2d at 1032-33 (finding no constructive amendment where jury instructions did not require the government to prove the specific roles of conspirators and overt acts committed in furtherance of charged conspiracy set forth in seven paragraphs of the indictment because those allegations were not "essential elements" to the conspiracy charge).
Defendant's motion cites three cases that she claims support a constructive amendment argument [154, at 11-13], but all three actually undermine her contention that "factual theories," not elements, are what matters. In United States v. Ramirez, 182 F.3d 544 (7th Cir. 1999), the indictment charged the defendant with knowingly carrying a firearm in relation to "a drug trafficking crime, being the knowing and intentional unlawful distribution of marijuana" in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. §§ 924(c)(1) and 2(a). Id. at 547. At trial, the government attempted to change the drug charge to be possession (not distribution) of marijuana. The Court found that "a particular drug trafficking offense rendered the specified predicate offense an essential element of the 924(c) charge." Id. (emphasis added). Because the proof at trial regarding this predicate offense differed from this "element" in the indictment, there was a constructive amendment on the firearm charge. Id. at 548.
The same scenario was present in United States v. Willoughby, 27 F.3d 263 (7th Cir. 1994). The indictment charged defendant with the use of a firearm "during and in relation to a drug trafficking crime, to wit: the distribution of cocaine." Id. at 266. Because the indictment used the phrase "to wit," it made "what follows an essential part of the charged offense." Id. Because the indictment limited the particular predicate drug offense for the firearm conviction to cocaine distribution, proof at trial of cocaine possession was a constructive amendment.
Furthermore, in United States v. Pigee, 197 F.3d 879 (7th Cir. 1999), the Seventh Circuit rejected one constructive amendment argument, but accepted another. The defendant was charged with maintaining a "place" for purposes of distributing cocaine (Count 6) and making a building she owned available for storing cocaine (Count 7). The Seventh Circuit upheld Count 6 even though the jury instructions included a reference to a "residence" (not a "place") and added "manufacturing" to the charge because this was "benign supplemental verbiage." Id. at 887. The Seventh Circuit found that Count 7 had been constructively amended, however, because the instructions added "manufacturing, distributing, [and] using" to the possible ways that the defendant could be convicted—all of which are distinct ways to violate to violate 21 U.S.C.§ 856 specified in the statute itself. Id. Thus, the government did not change a factual theory unrelated to the elements; it changed the how the elements of 21 U.S.C. § 856 were proven.
Here, Defendant concedes that gain is not an element of wire fraud. [154, at 20; 156, at 2.] While she also asserts that the indictment's allegation regarding gain is not "mere surplusage" [154, at 20], she does not explain how gain "is necessary to establish the very illegality" for which she was charged. Cina, 699 F.2d at 859. Without dispute, her altruism or self-interest is not. See, e.g., United States v. Spano, 421 F.3d 599, 603 (7th Cir. 2005) ("A participant in a scheme to defraud is guilty even if [s]he is an altruist and all the benefits of the fraud accrue to other participants."). In other words, wire fraud does not depend on proof of the defendant's motives any more than a drug conspiracy in violation of 21 U.S.C. § 846 depends on proof of an overt act. Neither is "essential" or "material" to the offense. If gain is not essential to wire fraud, then it is surplusage. See Swanson, 394 F.3d at 525. If it is surplusage, then the Government does not need to prove gain beyond a reasonable to sustain a wire fraud conviction.
But all of this is only one problem with Defendant's argument. This is not a case where a "`complex set of facts' [was] presented to the jury which was distinctively different from those set forth in the charging instrument." United States v. Muelbl, 739 F.2d 1175, 1181 (7th Cir. 1984). The text of Defendant's indictment reads, "It was further part of the scheme that defendants [Hansen], [other co-Defendant], and [Defendant] fraudulently converted to their benefit the funds obtained from Organization A." [1, ¶ 9.]
Likewise, the Court remains unpersuaded that the Seventh Circuit's pattern instruction broadened the indictment.
Defendant fails to distinguish this case from Miller. Defendant contends that "Miller does not apply in the instant case is because Miller charged two theories, either of which could sustain the elements of the conviction. In essence, Miller charged the gain and no gain alternatives." [154, at 5.] While that is true of Miller, Defendant glosses over the fact that the reason why "gain and no gain" can both "sustain" a wire fraud conviction is that neither are elements of wire fraud nor delineate the way in which the Government proves any element of wire fraud. Said differently, gain is not necessary to the offense. As the Supreme Court held in Miller, "[t]o the extent [Ex Parte] Bain stands for the proposition that it constitutes an unconstitutional amendment to drop from an indictment those allegations that are unnecessary to an offense that is clearly contained within it, that case has simply not survived. To avoid further confusion, we now explicitly reject that proposition." 471 U.S. at 144. Just because Defendant's "indictment charged more than was necessary" does not mean that she was not "tried on an indictment that clearly set out the offense for which [s]he was ultimately convicted." Id. at 140. There was no constructive amendment, and this basis for a new trial or acquittal is denied.
B. Sufficiency of the Evidence
Defendant's argument that the Government failed to meet its burden at trial is based on one simple premise: Hansen is a liar. Defendant contends that she "can and will prove, using Hansen's (and [the Government's summary expert's]) own words, beyond a reasonable doubt that everything Shari Hansen said regarding Debra Schultz's knowledge to be false and unreliable." [154, at 21.] Defendant proceeds to collect what she contends are Hansen's "actual lies" and other statements "that can be directly impeached with irrefutable evidence." Id. at 22. She then lists eight "group[s] of lies" that Hansen told, many of which are simply variations on the same statements about how much money Defendant kept from each fraudulent check as part of the scheme. Id. at 22-54. Defendant maintains that Hansen's testimony "is not even remotely believable," involved "an unequivocal lie," was "proven false by the evidence," was "unequivocally impeached," and was impeached by her plea agreement. Id. at 23, 25, 32, 46, 49-51. Defendant concludes by stating, "There is not one material fact that Hansen testified to that is not tainted with lies. Everything material is a lie. Why the need for so many lies? These aren't merely negative inferences, these are unequivocal lies." Id. at 154.
There are two main problems with this argument. First, "attacks on witness credibility are insufficient to sustain a challenge to the sufficiency of the evidence." United States v. Griffin, 84 F.3d 912, 927 (7th Cir. 1996). "Credibility determinations * * * are within the province of the jury, and we will not reverse them just because the credited testimony comes from confessed law-breakers or known liars." United States v. Algee, 309 F.3d 1011, 1016 (7th Cir. 2002); accord United States v. Rollins, 544 F.3d 820, 835 (7th Cir. 2008) ("It is up to the jury to weigh the evidence and determine the credibility of the witnesses; we do not second-guess the jury's assessment of the evidence."). Thus, proving that Hansen was a lying liar who lied does not get Defendant very far under a sufficiency-of-the-evidence review. See United States v. Odicho, 215 F. App'x 546, 549 (7th Cir. 2007) (describing the argument that defendant was entitled to a new trial because the co-operating witness's testimony "was inherently unreliable" as "patently frivolous").
A court "will overturn a conviction based on a credibility determination only if the witness' testimony was incredible as a matter of law." United States v. Hayes, 236 F.3d 891, 896 (7th Cir. 2001) (emphasis added). "That is an exacting standard," requiring proof such as "it would have impossible under the laws of nature for those events to have occurred at all." Id. (internal quotation marks omitted). Inconsistencies in a witness's testimony do not rise to this standard. Id. Here, the "lies" that Defendant identifies are all typical impeachment or conflicts in testimony (e.g., how much money Defendant kept, when she and Hansen first discussed the fraud, why they used Defendant's son's bank account, who had access to which ATM cards, etc.)—which the jury heard and could weigh as part of its deliberations. Even accepting Defendant's framing, none of Hansen's alleged "lies" makes it "impossible under the laws of nature" or "physically impossible" for Defendant to have known that she was defrauding Organization A. In a trial where multiple witnesses had their credibility challenged, it is plain that these credibility questions about Hansen were firmly within the jury's province.
Second, Hansen's testimony was not the sole evidence against Defendant establishing her knowledge. Defendant herself testified and was subject to cross-examination regarding her knowledge. The jury heard about dozens of checks from Organization A that were deposited in Defendant's minor son's bank account, which was controlled by Defendant. The jury heard that Defendant handwrote certain deposit slips that were made out from Organization A to her son with the name "[Defendant's son], MD," even though there is no dispute that her seventeen-year-old son was not a doctor. The jury received text messages between Defendant and Hansen showing that once the Internal Revenue Service started investigating the payments to Defendant's son, Defendant worked with Hansen to defraud Organization A of more money to pay off the IRS. The jury heard that Defendant, in her words, "ma[d]e up a fake-email address" to contact Organization A's Chief Financial Officer to ensure that money was paid to the IRS for her son. The jury also heard extensive testimony from both the Government's and Defense's summary witnesses that Defendant likely kept between $11,000 and $5,000 of Organization A's money. Defendant's motion ignores all of this evidence. Construing this evidence in light most favorable to the government, a rational trier of fact could have found that Defendant knowingly participated in the wire fraud scheme against Organization A and did so with intent to defraud beyond a reasonable doubt. Weimert, 819 F.3d at 354. Thus, Defendant has not shown that the record is devoid of evidence from which she could have been convicted, and she is not entitled to a judgment of acquittal or a new trial on this ground.
C. Text Messages
Before the trial commenced, the parties extensively briefed the admissibility of certain text messages between Hansen and Defendant. The short version is that the Government moved in limine to introduce certain text messages, which were admissible non-hearsay under Federal Rule of Evidence 801(d)(2). Defendant also wanted to introduce several other text messages between the cousins, but had to overcome the obvious hearsay problems presented by a defendant admitting her own out-of-court statements for the truth of the matter asserted.
Defendant's main argument was that every text message she sent was admissible under the doctrine of completeness. To help guide the parties, the Court laid out the legal principles and illustrations that it would use to decide which text messages could be admitted under this theory. [See 109.] The parties submitted another round of briefing, as part of which the Court requested that Defendant explain if she disagreed with the Court's summary of the law, which was drawn from Seventh Circuit precedent. Defendant never stated any such disagreement. [See 120-1, at 2.] Ultimately, the Court applied the principles from its original order and ruled on each statement offered by Defendant—admitting some and excluding others. [See 120-1.]
Defendant now makes two arguments. First, she contends that some statements should have been admitted under Federal Rule of Evidence 803(3), the state of mind exception to the hearsay rule. [154, at 57-58.] Second, she contends that the "completeness doctrine is not as limited as the court ruled." Id. As a threshold matter, Defendant never articulates how—even if she is correct that the Court erred—these evidentiary errors warrant a new trial. See United States v. Cueto, 151 F.3d 620, 637-38 (7th Cir. 1998) ("A defendant is entitled to a new trial only if there is `a reasonable possibility' that the exclusion of the evidence had `a prejudicial effect upon the jury's verdict.'"). Defendant's failure to make such a showing is sufficient to deny her motion. Nevertheless, the Court will address the substance of her arguments.
1. Federal Rule of Evidence 803(3)
Defendant argues that the Court erred in excluding Defendant's text messages from 2012 and 2013 under the state of mind exception. Defendant was charged with three counts of wire fraud, the latest of which was in January 2010. [1, at 8.] The Court explained that the relevant state of mind for Defendant was if she acted knowingly at the time that she committed each instance of wire fraud. [120-1, at 8.] Accordingly, Defendant's "state of mind" several years after the fact was not the relevant state of mind, making Rule 803(3) inapplicable. Id.
Defendant now says that she "is very confused" by the Court's order because the Government alleged "ongoing concealment" in the indictment and set "no limitation on the time period of concealment," which means her state of mind at any point in the future is relevant. [154, at 57] Putting aside the fact that Defendant never made this argument in her motion in limine briefing [see 114, at 30-31], this argument still fails. To start, Defendant does not identify which particular text messages she contends should be admitted under Rule 803(3), which applies to a "statement of the declarant's then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed." Most of the excluded text messages were either statements made by Hansen—whose state of mind was irrelevant—or were not about Defendant's "existing state of mind" at all. [See 154, at 54-56.] For example, how is Defendant's August 2013 statement to Hansen, "If they think I got $30,000 what did you get?!!! You're screwed." a statement of Defendant's then-existing state of mind? If anything it shows her belief that her cousin was in trouble, but statements about belief are excluded from Rule 803(3). But, again, Defendant did not attempt to identify (or justify) which text messages she was seeking to admit under this exception and it was her obligation to do so.
Regardless, the jury was not asked to decide whether Defendant engaged in "ongoing concealment" of her fraud from 2008 through the present. It was asked to determine Defendant's state of mind for each of the three distinct instances of wire fraud charged in the indictment, which were alleged to have occurred on or about September 25, 2009, November 10, 2009, and January 7, 2010. [See 1.] Defendant never explains how her "state of mind" in 2013 is specifically relevant to any of these three charges or can be admitted to show her knowledge years prior. Indeed, Defendant further argues that she "is offering the statements to show her state of mind in the discussions two or three years later after the scheme, but still two years prior to being charged." [154, at 58.] If these statements are "after the scheme," then they are not relevant to proof of Defendant's knowledge at the time of the scheme. See United States v. Jackson, 780 F.2d 1305, 1315 (7th Cir. 1986) ("We also note that the defendants' statements were made two years after the fuel-stealing scheme had ended. * * * We doubt that the defendants' state of mind in 1983 has any relevance to their state of mind two years earlier."); United States v. Laskowski, 2016 WL 4011230, at *4 (N.D. Ill. July 27, 2016) ("Defendant's 2010 letter to the IRS is exactly the kind of statement explicitly excepted from Rule 803(3). Defendant's 2010 letter to the IRS regarding his actions in 2008 is necessarily comprised of past-tense statements of memory. As the Court explained above, Defendant's mindset in 2008 is what matters. His written account of what that mindset was over a year later is irrelevant.").
Defendant protests that "the Court has not cited any authority preventing the defendant from admitting text messages simply because they are after the alleged time frame of the scheme." [154, at 58.] Of course, if Defendant believes that the Court erred, it was her burden to produce law supporting her position. She cites nothing. In any event, it is black letter law that "statements offered under Rule 803(3) must be `contemporaneous with the * * * event sought to be proven; [therefore] it must be shown that the declarant had no chance to reflect—that is, no time to fabricate or misrepresent his thoughts.'" United States v. Macey, 8 F.3d 462, 467 (7th Cir. 1993) (finding statements made "four hours after the [fraudulent] invoice was executed" to be enough time to fabricate and fall outside Rule 803(3)'s contemporaneousness requirement); accord United States v. Neely, 980 F.2d 1074, 1083 (7th Cir. 1992) ("Two and a half weeks is more than adequate time to reflect (and perhaps fabricate) one's thoughts."); United States v. Giles, 67 F.Supp.2d 947, 950 (N.D. Ill. 1999) ("Three weeks later is too late."). The Seventh Circuit has also "noted that `[t]he act of letter writing usually provides as much time as the writer might want to fabricate or misrepresent his thoughts' so the 803(3) exception generally does not apply." Neely, 980 F.2d at 1083. Defendant fails to articulate how any of her written text messages drafted two to three years "after the scheme" [154, at 58] qualify as contemporaneous with the "event sought to be proven" (her knowledge at the time of the fraud scheme in 2009 and 2010) or were made without time to reflect. See Jackson, 780 F.2d at 1315 ("The [Defendants], on the other hand, had two years to reflect upon their actions and potentially an incentive to misrepresent the truth in their conversations with [co-Defendant]. * * * Given the absence of contemporaneousness, the potential for deliberate misrepresentation and the questionable lack of relevance of the evidence, the district court did not abuse its discretion in refusing to admit the defendants' statements [made two years after the fuel-stealing scheme had ended] pursuant to Fed. R. Evid. 803(3)."). Accordingly, the Court sees no error.
2. Doctrine of Completeness
Defendant believes that the Court provided an "overly-very narrow construction" of the doctrine of completeness when it declined to find that Defendant and her cousin were engaged in "one long continuous conversation" between May 2011 and September 2013. [154, at 58.] To be admitted under the doctrine of completeness, a statement needs to "explain" and "place in context" particular admitted evidence. United States v. Reese, 666 F.3d 1007, 1019 (7th Cir. 2012). Defendant did not make this specific showing before trial. [120-1, at 8-9.] Repeating her original argument that "all" of her texts were required to have been admitted is not persuasive.
For all of the reasons stated above, Defendant's request to file a longer brief  is granted, and her motion for acquittal and new trial  is denied.