Where the district court's instructions to the jury in a criminal case provide—as part of the theory of defense instruction—an explanation of an essential element of the offense, does the prosecution violate due process or constructively amend the indictment by wrongly advising the jury to disregard as mere defense argument the law given by the district court in the defense theory instruction?

QUESTIONS PRESENTED 1. Where the district court’s instructions to the jury in a criminal case provide—as part of the theory of defense instruction—an explanation of an essential element of the offense, does the prosecution violate due process or constructively amend the indictment by wrongly advising the jury to disregard as mere defense argument the law given by the district court in the defense theory instruction? 2. Did the court of appeals correctly conclude that a defendant’s guilt of the element of knowing involvement in a fraud scheme, under 18 U.S.C. §§ 1341 and 1343, makes the defendant liable for the substantive acts of fraud committed by other participants, without application of either a vicarious liability theory under Pinkerton v. United States, 328 U.S. 640 (1946, or an aiding and abetting theory? i INTERESTED PARTIES The following party defendant in the underlying criminal case, who has also filed a petition for certiorari (No. 21-7720), has an interest in the proceedings: Matthew William Wheeler ii