No Predicate, No Conspiracy: Seventh Circuit Clarifies § 371 Liability and Jury-Instruction Standards in United States v. Clark

Introduction

The Seventh Circuit’s decision in United States v. Derrick Clark & Shawn Mesner (Nos. 24-1320 & 24-1321, 10 June 2025) arises out of a catastrophic 2017 explosion at Didion Milling’s corn mill in Cambria, Wisconsin. Federal prosecutors charged the company and several executives with a variety of environmental, fraud, and obstruction offences, centred on falsified pollution-control and sanitation records. After a seven-day jury trial Derrick Clark (Vice-President of Operations) was convicted on four counts; Shawn Mesner (Food-Safety Superintendent) was convicted on two. Both defendants appealed, challenging evidentiary rulings, jury instructions, sufficiency of the evidence, and the constitutionality of an incorporated OSHA housekeeping regulation.

The Court of Appeals affirmed Clark’s convictions, reversed one of Mesner’s, and issued several notable holdings on: (1) the admission of plea-agreement “statements of facts” as substantive evidence; (2) the level of unanimity and object specificity required for a single conspiracy charge involving multiple predicate federal offences under 18 U.S.C. § 371; (3) the evidentiary bar for aiding-and-abetting liability in “false-document” cases; and (4) the relationship between dismissed substantive counts and surviving conspiracy counts. The judgment therefore refines Seventh-Circuit law on conspiracies, aiding and abetting, and trial-management issues.

Summary of the Judgment

Winch Statement of Facts – The panel upheld admission of coconspirator Joseph Winch’s sworn plea “statement of facts” as a prior inconsistent statement under Fed. R. Evid. 801(d)(1)(A), rejecting Clark’s foundation and Williamson-style objections.
Sufficiency of Evidence (Clark) – The Court affirmed Clark’s convictions under 18 U.S.C. §§ 1519, 1001(a)(3), and 1505, holding that the jury had ample evidence of his knowledge, intent, and affirmative acts supporting aiding-and-abetting liability.
Jury Instructions on § 371 – Although the instructions were “not a model of clarity,” the Court ruled they accurately conveyed the law and ensured unanimity through a special verdict form. Clark’s invited-error/waiver barred further review.
Vagueness Challenge – Because Clark was not charged with violating OSHA’s housekeeping regulation, the panel declined to reach his constitutional vagueness argument.
Sufficiency of Evidence (Mesner) – Mesner’s conviction on Count 4 (§ 371 conspiracy) was vacated: the only substantive predicate tied to him (§ 1001(a)(3) via sanitation-log falsification) was dropped at trial, and no evidence linked him to the remaining predicates.
Mail/Wire-Fraud Conspiracy – The Court affirmed Mesner’s conviction on Count 1, finding sufficient evidence that falsified sanitation records were material to large food customers and that money was an object of the scheme.

Analysis

1. Precedents Cited

Ocasio v. United States, 578 U.S. 282 (2016) – For the principle that § 371 conspirators must intend that some member commit the predicate offence.
Rosemond v. United States, 572 U.S. 65 (2014) – Applied to articulate the “affirmative act” and “shared intent” test for aiding and abetting.
Ciminelli v. United States, 598 U.S. 306 (2023) – Distinguished; Seventh Circuit reaffirmed traditional money-or-property fraud theory, not the invalidated “right-to-control” theory.
Kousisis v. United States, 145 S. Ct. 1382 (2025) – Cited on materiality standards in mail/wire fraud.
Williamson v. United States, 512 U.S. 594 (1994) – Limited to Rule 804 context; the Court refused to extend its parcel-by-parcel approach to Rule 801(d)(1)(A).
Shorter, Hughes, Griggs, Sababu, and Seventh-Circuit pattern instructions – Utilised for jury-instruction and unanimity analysis.

2. Legal Reasoning

a) Admission of Plea “Statement of Facts.” The Court deemed Winch’s three-page factual statement non-hearsay because:

Winch adopted it under oath during his plea colloquy.
At trial he gave inconsistent testimony, satisfying Rule 801(d)(1)(A).
Williamson’s “against-interest slicing” applies only to Rule 804(b)(3) declarations, not to prior inconsistent statements.
Rule 701 foundation concerns were satisfied by Winch’s personal interactions with Clark.

b) Sufficiency for § 1519 and § 1001(a)(3). Evidence showed Clark knowingly signed a false compliance certification and, by agreeing to strip colour-coding and submitting logs to regulators, actively furthered the false-document offence. The Court repeated that § 1001(a)(3) “use” includes silent submission.

c) § 371 Jury-Instruction Framework.

The object of the conspiracy must be a federal offence; mentioning a broader “overarching objective” is permissible if instructions also enumerate the predicate statutes.
Although conspirators must agree on at least one common offence, defendants may waive errors by explicitly approving instructions; Clark’s waiver foreclosed review.
A general unanimity instruction plus a special verdict form satisfied Sixth-Amendment unanimity where multiple predicates were available.

d) Vacatur for Misaligned Predicate. Because the government dismissed Count 7 (false sanitation logbook) and adduced no evidence tying Mesner to remaining predicates (baghouse logs or OSHA deposition), his § 371 conviction could not stand. The Court effectively announced: to sustain a § 371 conviction each defendant must be linked by evidence to at least one specific surviving predicate offence submitted to the jury.

e) Mail/Wire Fraud. The panel reaffirmed that the object “money” satisfies the property element; contractual proof of materiality is unnecessary where testimony shows buyers would have withheld business had they known the truth.

3. Impact of the Judgment

Conspiracy Charging and Trial Management. Prosecutors must ensure that each defendant’s conduct ties to at least one predicate offence that reaches the jury; dismissing a substantive count mid-trial can imperil dependent conspiracy charges.
Jury Instruction Practice. District courts may rely on special verdict forms to secure object-specific unanimity, but clear language remains advisable to pre-empt appeals.
Plea “Statements of Facts.” The decision endorses broad admissibility of such documents as substantive evidence when adopted under oath, easing the government’s ability to counter recanting witnesses.
Environmental & Workplace-Safety Enforcement. Employers and executives are reminded that falsified compliance certifications or operational logs can trigger federal criminal liability, even absent direct environmental-pollution counts.

Complex Concepts Simplified

Baghouse & Pressure Drop – A baghouse is an industrial dust-collection device. The “pressure drop” is the air-pressure difference across filter bags; abnormal readings signal clogged or leaking filters.
18 U.S.C. § 1519 – Known as the “anti-shredding” statute, it criminalises falsifying or destroying documents to impede federal investigations.
18 U.S.C. § 1001(a)(3) – Covers creating or using any document containing false statements in matters within federal agency jurisdiction.
18 U.S.C. § 371 (Conspiracy) – Punishes agreements to (i) defraud the United States or (ii) commit “any offence against” the United States; requires an overt act and intent that some member commit the predicate crime.
Aiding and Abetting (18 U.S.C. § 2) – Liability attaches to anyone who intentionally assists or encourages the commission of a federal offence, even if they do not perform every element themselves.
Prior Inconsistent Statement (Rule 801(d)(1)(A)) – A witness’s out-of-court statement is not hearsay if the witness testifies at trial, is subject to cross-examination, and the statement was given under oath in a prior proceeding.
Waiver vs. Forfeiture – “Waiver” is intentional relinquishment of a known right (e.g., affirmatively approving a jury instruction), barring appellate review; “forfeiture” is failure to object, triggering plain-error review.

Conclusion

The Seventh Circuit’s opinion in United States v. Clark delivers two principal lessons. First, the Court validates flexible, verdict-form-centered approaches to obtaining unanimous § 371 conspiracy verdicts, while emphasising defendants’ ability to waive instructional objections. Second, it draws a bright line: when prosecutors dismiss substantive counts, residual conspiracy liability cannot rest on conduct never presented as a viable predicate to the jury. Alongside notable evidentiary rulings on plea statements and aiding-and-abetting doctrine, the decision will guide both prosecutors and defence counsel navigating complex multi-predicate conspiracies, particularly in environmental and workplace-safety contexts.